Hacienda La Puente Unified School District (PERB 1280E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS HACIENDA
LA PUENTE CHAPTER #115, Case No. LA-C-235
(Unfair Practice Case
Charging Party, No. LA-CE-3576)

Vv. PERB Decision No. 1280

HACIENDA LA PUENTE UNIFIED
SCHOOL DISTRICT,

August 27, 1998

Respondent.

eet eet See ee ee ee et et ee a ee

Appearances; California School Employees Association by Alan S.
Hersh, Attorney, for California School Employees Association and
its Hacienda La Puente Chapter #115; Lozano, Smith, Smith,
Woliver & Behrens by Christine M. Wagner, Attorney, for Hacienda
La Puente Unified School District.
Before Caffrey, Chairman; Johnson and Dyer, Members.
DECISION

DYER, Member: This case comes before the Public Employment
Relations Board (PERB or Board) on the Hacienda La Puente Unified
School District's (District) appeal from a Board hearing
officer's proposed decision (attached) ordering the District to
comply with the Board's order in Hacienda La Puente Unified
School District (1997) PERB Decision No. 1184 (Hacienda

La Puente).

In Hacienda La Puente. the Board adopted a PERB

administrative law judge's proposed decision holding that the

District violated section 3543.5(a), (b) and (c) of the

Educational 	Employment Relations Act 	(EERA)1 when it 	refused to
provide 	the 	California School 	Employees Association and 	its
Hacienda 	La 	Puente 	Chapter #115 	(CSEA) 	with 	information relevant
and necessary to 	CSEA's 	discharge 	of 	its 	duty to 	represent 	unit
employees. 	Specifically, 	the Board found that 	the District
unlawfully 	failed 	to provide 	CSEA with a 	letter 	that 	CSEA
believed 	served as 	the basis 	for 	the 	discipline 	of 	unit member
Sam Ortiz 	(Ortiz). 	The Board ordered the District, 	inter alia,
to provide 	CSEA with a 	copy of 	this 	letter.
Subsequent 	to the Board's decision in Hacienda La Puente. 	a
dispute 	arose between 	the parties 	over whether 	the District 	had
complied with the Board's 	order. 	After a formal 	hearing, 	the
hearing 	officer 	issued a proposed 	decision 	finding 	that 	the
District 	had 	failed 	to 	comply with 	the 	Board's 	order 	in 	two
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 provides, 	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
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
22

respects. 	First, 	the hearing officer found that 	the District had
failed 	to provide 	CSEA with a 	copy 	of 	the 	requested 	information
or to demonstrate good cause why it was unable 	to do so. 	Second,
the 	hearing 	officer 	found 	that 	the District 	had 	failed 	to post
the Notice 	to Employees at 	the 	Fairgrove School 	site. 	The
hearing 	officer held 	that 	the District's 	actions violated 	the
Board's 	order 	in Hacienda La 	Puente.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the proposed decision, 	the hearing transcript, 	the
District's exceptions, 	and CSEA's 	response to those exceptions.
The Board finds 	the hearing officer's 	findings 	of 	fact 	and
conclusions 	of 	law to be 	free 	from prejudicial 	error and adopts
them as 	the 	decision of 	the 	Board 	itself 	consistent 	with 	the
following 	discussion.
DISCUSSION
On appeal, 	the District 	challenges 	the hearing officer's
authority to award attorneys' 	fees 	in this matter. 	The District
notes 	that 	California 	courts 	have held that 	administrative
agencies may not award attorneys' 	fees unless 	statutorily
authorized to do so. 	(Citing Peralta Community College Dist, 	v.
Fair Employment 	& Housing Com. 	(1990) 	52 	Cal.3d 40 	[276 	Cal.Rptr.
114]; 	Sam Andrews' 	Sons v. 	Agricultural Labor Relations Bd.
(1988) 	47 Cal.3d 157 	[253 	Cal.Rptr 30].) 	The District contends
that 	the 	EERA does 	not 	specifically authorize 	the 	Board 	to 	award
attorneys' 	fees 	and that 	the Board 	is precluded 	from making any
such award. 	We disagree.
33

Although 	the 	Board 	is 	rarely presented with 	circumstances
that 	justify an award of attorneys' 	fees and costs, 	we have 	long
held that 	such an award 	is 	appropriate where a 	case 	is 	without
arguable merit, 	frivolous, 	vexatious, 	dilatory, 	pursued in bad
faith or otherwise an abuse of process. 	(Los Angeles Unified
School District 	(1993) 	PERB Decision No. 	1013, 	p. 	2; 	Chula Vista
City School District 	(1990) 	PERB Decision No. 	834, 	pp. 	73-74; 	see
United Professors of 	California 	(Watts) 	(1984) 	PERB Decision No.
398-H, 	p. 	2 	(awarding attorneys' 	fees where a party acted in
defiance of a Board order); 	Los Angeles Unified School District
(1982) 	PERB Decision No. 	181a, 	p. 	6.) 	In addition, 	the
legislature 	has 	recently amended 	the 	EERA to grant 	the 	Board
specific 	statutory authority to award attorneys' 	fees 	and costs
incurred as 	a 	result 	of bad 	faith actions 	or tactics 	that 	are
frivolous 	or 	solely 	intended 	to 	cause unnecessary delay. 	(EERA
sec. 3541.3(h); Government Code sec. 11455.30.)2
2EERA section 3541.3 provides, 	in relevant part:
The board shall 	have all 	of 	the 	following
powers 	and duties:
(h) 	To hold hearings, 	subpoena witnesses,
administer oaths, 	take the 	testimony or
deposition of any person, 	and, 	in connection
therewith, 	to issue subpoenas duces 	tecum to
require 	the production and examination 	of 	any
employer's 	or 	employee 	organization's
records, 	books, 	or papers relating to any
matter within 	its 	jurisdiction.
Notwithstanding Section 	11425.10, 	Chapter 4.5
(commencing with Section 11400) 	of Part 	1 	of
Division 3 	of Title 2 	does not apply to a
hearing by 	the board under 	this 	chapter,
except 	a hearing 	to 	determine 	an unfair
practice 	charge.
44

In Hacienda La 	Puente, 	the Board specifically ordered the
District 	to provide 	CSEA with 	information necessary and 	relevant
to 	its 	representational 	duties. 	The Board's 	order clearly
identified 	the 	nature 	of 	this 	information and 	specified 	the
timeline within which the District was 	to act. 	In response, 	the
District 	made 	a perfunctory 	search of 	its 	official 	personnel
files 	- 	a 	location which the District had determined did not
contain 	the 	requested information. 	According 	to 	the 	testimony of
its 	own witnesses, 	the District 	took no other steps 	to locate 	the
requested information. 	The District made no effort, 	whatsoever,
to 	contact 	the author of 	the 	letter, 	the affected employee's
supervisor, 	or any of 	the several 	other persons 	likely to have
possessed a 	copy of 	the 	letter. 	Far 	from constituting due
diligence, 	the District's 	efforts were little more 	than an
absolute 	refusal 	to 	comply with 	the 	Board's 	order 	in Hacienda
La Puente.
California Government 	Code 	section 	11455.30 	provides:
(a) 	The presiding officer may order a party,
the party's 	attorney or other authorized
representative, 	or both, 	to pay reasonable
expenses, 	including attorney's fees, 	incurred
by another party as 	a 	result 	of 	bad 	faith
actions 	or tactics 	that 	are 	frivolous 	or
solely 	intended 	to 	cause unnecessary 	delay as
defined 	in Section 	128.5 	of 	the 	Code 	of 	Civil
Procedure.
(b) 	The order, 	or denial of an order, 	is
subject 	to 	judicial 	review in 	the 	same manner
as a decision in the proceeding. 	The order
is 	enforceable 	in the 	same manner as 	a money
judgment 	or by 	the 	contempt 	sanction.
un	
5

The District and its 	attorneys 	are no 	strangers 	to
proceedings before the Board. 	They are, 	or should be, 	well aware
of 	their duty to comply with a Board order. 	Accordingly, 	the
Board 	finds 	it 	appropriate 	that 	the District 	reimburse 	CSEA for
its 	reasonable attorneys' 	fees and costs both for the 	compliance
hearing below and 	for 	this 	appeal.
REMEDY
Although 	the Board 	concurs 	in 	the 	hearing 	officer's 	finding
that 	the 	District's 	refusal 	to provide 	the 	requested 	information
compromised not 	only CSEA's 	ability 	to 	represent 	its membership
but 	Ortiz' 	ability to effectively respond to the letter of
reprimand, 	the Board 	finds 	it 	appropriate 	to modify the 	remedy 	in
this 	case. 	In fashioning a 	remedy for unlawful 	conduct, 	the
Board has 	broad authority 	to 	take 	action which effectuates 	the
purposes 	of 	the EERA. 	(EERA sec. 	3541.5(c).) 	The Board
routinely exercises 	this 	authority to order the 	removal 	of
materials 	from employee personnel 	files. 	(See, 	e.g., 	Oakdale
Union Elementary School District 	(1998) 	PERB Decision No. 	1246,
pp. 	21-22; 	Alisal Union Elementary School District 	(1998) 	PERB
Decision No. 	1248, 	p. 	7.) 	Here, 	however, 	the record contains no
indication that 	the District 	disciplined Ortiz 	in reprisal 	for
his 	protected activities 	or 	for any other 	improper 	reason.
Accordingly, 	the Board finds 	that 	it 	is 	not appropriate 	to order
the District 	to 	rescind the 	letter of 	reprimand at 	this 	time.
66

ORDER
Upon the 	findings 	of 	fact 	and 	conclusions 	of 	law and 	the
entire record in this 	case, 	it 	is 	found that 	the Hacienda
La 	Puente Unified School 	District 	(District) 	has 	failed to 	comply
with an order of 	the 	Public 	Employment Relations 	Board 	(PERB) 	in
Hacienda La 	Puente Unified School 	District 	(1997) 	PERB Decision
No. 1184.
Pursuant 	to 	the 	Educational 	Employment 	Relations Act 	(EERA)
section 3541.5(c), 	it is hereby ORDERED that the District, 	its
governing board and 	its 	representatives 	shall:
A. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Provide 	the 	California School 	Employees Association and
its Hacienda La Puente Chapter #115 	(CSEA) 	with a 	copy of 	the
Julie 	Milan 	letter/incident 	report 	requested by 	CSEA on
November 22 and December 5, 	1994, 	and January 10, 	1995 	or show
just 	cause why it 	is unable to do so. 	Additionally, 	within
thirty 	(3 0) 	calendar days after the document is 	furnished to
CSEA, 	upon request of CSEA or Sam Ortiz 	(Ortiz), 	allow Ortiz 	to
file 	a 	supplemental 	rebuttal 	to 	the written 	reprimand 	issued 	to
him on November 7, 	1994.
2. 	Within ten 	(10) 	days 	following the date 	that 	this
Decision is 	no longer subject 	to appeal, 	post a copy of 	the
notice 	to 	employees 	attached 	to Hacienda 	La 	Puente 	Unified School
District 	(1997) 	PERB Decision No. 	1184 at the Fairgrove School
site 	in an area where 	notices 	to 	classified employees 	are
customarily placed. 	The Notice must be 	signed by an authorized
7

representative 	of 	the District, 	indicating that 	the District will
comply with 	the 	terms 	of 	the Order. 	Such posting 	shall 	be
maintained 	for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall be 	taken to 	ensure 	that 	the Notice 	is 	not
reduced in size, 	altered, 	defaced, 	or covered with any other
material.
3. 	Pay to CSEA reasonable attorneys' 	fees and costs
incurred 	relating 	to 	the 	conduct 	of 	the 	compliance 	hearing and
appeal 	in this 	case. 	Such 	costs 	and 	fees will 	be 	awarded 	in an
amount 	established by a 	statement, 	submitted by declaration and
submitted to 	the District by CSEA, 	subject 	to 	review by PERB.
4. 	Within ten 	(10) 	days 	following the date 	that 	this
Decision 	is no longer subject 	to appeal, 	post at all work
locations 	where 	notices 	to 	classified 	employees 	are 	customarily
placed, 	copies 	of 	the Notice attached as an Appendix hereto. 	The
Notice must 	be 	signed by an authorized 	representative 	of 	the
District, 	indicating 	that 	the District will 	comply with 	the 	terms
of 	this 	Order. 	Such posting 	shall 	be maintained 	for a period of
thirty 	(3 0) 	consecutive workdays. 	Reasonable steps shall be
taken to ensure 	that 	the Notice 	is 	not 	reduced in size, 	altered,
defaced, 	or 	covered with any other material.
5. 	Written notification of 	the actions 	taken to 	comply
with 	this 	Order shall 	be made 	to 	the 	San Francisco Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with the 	director's 	instructions.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
8

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
I)
After a 	compliance 	hearing by 	the 	Public 	Employment
Relations Board 	(PERB or Board); 	in Case No. 	LA-C-235, 	California
School 	Employees Association and 	its 	Hacienda 	La 	Puente 	Chapte
#115 v. 	Hacienda La Puente Unified School District, 	in Haciend	- - r
a
La Puente Unified School District 	(1997) 	PERB Decision No. 	1184,
in which all 	parties had the 	right 	to participate, 	it has been
found 	that 	the 	Hacienda 	La 	Puente Unified School 	District
(District) 	failed to 	comply with 	the Board's 	decision and order.
As a result 	of 	this 	conduct, 	we have been ordered to post
this Notice 	and we will:
A. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Provide California School 	Employees Association
and 	its 	Hacienda La Puente Chapter #115 	(CSEA) 	with a 	copy of 	the
Julie 	Milan 	letter/incident 	report 	requested by 	CSEA on
November 22 and December 5, 	1994, 	and January 10, 	1995 or show
just 	cause why it 	is unable to do so. 	Additionally, 	within
thirty 	(30) 	calendar days after the document 	is 	furnished to
CSEA, 	upon request 	of CSEA or Sam Ortiz 	(Ortiz), 	allow Ortiz 	to
file 	a 	supplemental 	rebuttal 	to 	the 	written 	reprimand 	issued 	to
him on November 7, 	1994.
2. 	Post a 	copy of 	the notice 	to employees 	attached to
Hacienda 	La 	Puente Unified School District 	(1997) 	PERB Decision
No. 	1184 	at 	the 	Fairgrove School 	site 	in an area where notices 	to
classified employees 	are 	customarily placed. 	The Notice must 	be
signed by an authorized 	representative 	of 	the 	District,
indicating 	that 	the District will 	comply with the 	terms 	of 	the
Order. 	Such posting 	shall 	be maintained 	for a period of 	thirty
(30) 	consecutive workdays. 	Reasonable steps shall be taken to
ensure that 	the Notice is not 	reduced in size, 	altered, 	defaced,
or 	covered with any other material.
3. 	Pay to CSEA reasonable attorneys' 	fees and costs
incurred 	relating 	to 	the 	conduct 	of 	the 	compliance 	hearing and
appeal 	in this 	case. 	Such costs 	and 	fees will 	be awarded 	in an
amount 	established by a 	statement, 	submitted by declaration and
submitted to 	the District by CSEA, 	subject 	to 	review by PERB.

Dated: 	HACIENDA LA PUENTE 	UNIFIED 	SCHOOL
DISTRICT
By:
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	HACIENDA
LA 	PUENTE 	CHAPTER 	#115,
Exclusive 	Representative,
v.
HACIENDA LA PUENTE UNIFIED
SCHOOL DISTRICT,
Employer.
)
)
) 	Compliance 	Case
No. LA-C-235
(Unfair 	Practice 	Case
No. LA-CE-3576)
PROPOSED 	DECISION
(3/6/98)
)
)
)
)
)
)
)
)
)
Appearances: 	Alan S. 	Hersh, 	Staff Attorney, 	for California
School 	Employees Association and 	its 	Hacienda 	La 	Puente 	Chapter
#115; 	Lozano Smith Smith Woliver & Behrens by John J. 	Wagner,
Attorney, 	for Hacienda La 	Puente Unified School 	District.
Before Jerilyn Gelt, 	Hearing Officer.
BACKGROUND
On February 21, 	1997, 	the Public Employment Relations Board
(PERB or Board) 	issued California 	School 	Employees Association
and 	its Hacienda La 	Puente 	Chapter #115 	v. 	Hacienda La 	Puente
Unified School District 	(Decision No. 	1184) 	involving an unfair
practice 	charge 	filed by the 	California 	School 	Employees
Association and its Hacienda La 	Puente 	Chapter #115 	(CSEA)
against 	the Hacienda 	La 	Puente 	Unified School 	District
(District). 	The Board found the 	facts 	in the proposed decision
by the 	PERB 	administrative 	law judge 	(ALJ) 	to be 	free 	from
prejudicial 	error and adopted them as 	the 	decision of 	the 	Board
itself. 	The 	Board also adopted the ALJ's 	conclusions 	of 	law
which held that 	the 	District 	violated Educational 	Employment

Relations Act 	(EERA or Act) 	section 3543.5(a), 	(b) 	and 	(c)1 when
it 	failed 	to 	provide 	CSEA with 	the 	information 	which was
necessary 	and 	relevant 	to 	the 	discharge 	of 	its 	duty 	to 	represent
bargaining unit 	employees. 	Specifically, 	the 	District 	unlawfully
refused 	to 	produce 	a 	document 	which 	CSEA believed 	was 	the 	basis
for 	a 	written 	reprimand 	issued 	to 	bargaining unit 	employee 	Sam
Ortiz. 	The 	document 	was 	identified 	in 	the 	decision 	as 	either 	a
letter 	or 	an 	incident 	report 	written 	by unit 	employee 	Julie
Milan. 	Additionally, 	the 	District 	unlawfully refused 	to 	accept
or 	process 	the 	grievance 	filed by 	CSEA 	relating 	to 	the 	written
reprimand without 	explaining 	its 	rationale 	for 	doing 	so.
In 	section B 	of 	the 	decision 	order, 	the Board ordered 	the
District 	to:
1. 	Upon request, 	provide 	the Association
with 	a 	copy 	of 	the 	Julie 	Milan
U n l e s s 	otherwise 	noted 	all 	statutory 	references 	are 	to 	the
Government 	Code. 	EERA is 	codified at 	section 3540 	et. 	seq.
Section 	3543.5 	states, 	in relevant 	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
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet 	and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
22

letter/incident 	report 	requested by 	the
Association on November 	22 	and December 	5,
1994, 	and January 10, 	1995. 	Additionally,
within thirty 	(3 0) 	calendar days after the
document 	is 	furnished to 	the Association,
upon request 	of 	the Association or Sam Ortiz
(Ortiz), 	allow Ortiz to file a supplemental
rebuttal 	to 	the written 	reprimand 	issued 	to
him on November 7,1994. 	[Decision No. 	1184,
p. 	5.]
Section B 	of 	the 	decision order also 	required the 	District 	to:
3. 	. . . 	post 	at 	all 	work 	locations where
notices 	to 	classified employees 	are
customarily placed, 	copies of 	the Notice
attached as an Appendix 	[to the decision].
The Notice 	must 	be 	signed by an authorized
representative of the District, 	indicating
that 	the 	District 	will 	comply with the 	terms
of the Order. 	. 	. 	.
On March 31, 	1997, 	I sent a letter to the District
requesting 	it 	to 	file 	a 	statement 	of 	compliance with the 	Board's
order no later than April 	14, 	1997. 	The 	letter stated that 	the
statement 	of 	compliance must 	include 	the 	date 	the 	notice 	to
employees was posted by the employer, 	the 	final 	date of 	the
posting period, 	a copy of 	the notice, 	and a specific description
of 	the 	affirmative 	steps 	taken by the 	District 	to 	comply with
section B of 	the order.2
2Section B of 	the order also requires 	that 	the District,
upon request, 	provide the Association
with 	timely 	information 	that 	explains 	or
clarifies 	the District's 	reasons 	for not
accepting 	or processing 	a 	unit 	member's
grievance 	that 	the 	District 	initially
perceives 	as procedurally defective.
There 	is 	no dispute 	regarding 	the 	District's 	compliance with 	this
section of 	the order.
W	
3

Since no response was 	timely filed by the District, 	a 	second
letter was 	sent on May 1, 	1997, 	requesting a statement of
compliance no later than May 8, 	1997. 	On May 14, 	1997, 	this
office received a 	letter dated May 8, 	1997, 	from Superintendent
John Kramar stating,- in relevant part:
Attached please 	find a 	copy of 	PERB 	Decision
No. 	1184 	that 	I 	caused to be posted on March
6, 	1997. 	The district is not 	in possession
of the 	". 	. 	.Julie Milan letter/incident
report. 	. 	." referenced in B.I. 	The District
will 	accept 	a 	supplemental 	rebuttal 	should
Mr. 	Ortiz write one.
Kramar's 	letter did not 	contain any description of 	the 	steps
taken by the District 	to locate the Milan document, 	nor was his
response 	served on 	CSEA as 	required.
On May 22, 	1997, 	I 	telephoned the District requesting a
proof of 	service of 	the District's May 8 	letter on CSEA. 	In
response, 	rather than send a copy of 	a proof of 	service 	as
requested, 	the District 	faxed a copy of a May 8, 	1997 	letter it
had mailed to 	CSEA stating that 	it 	was 	not 	in possession of 	the
Milan 	letter or report 	and 	setting 	forth the 	reasons 	it 	had
refused to process Ortiz's grievance.
CSEA filed a letter with PERB on June 2, 	1997, 	asserting
that 	the 	District 	had 	failed 	to 	comply with the 	Board's 	order and
requesting that 	PERB 	take 	action to 	ensure 	compliance. 	In
addition 	to 	the 	District's 	failure 	to produce 	the Milan document
upon CSEA's 	request, 	CSEA contended that 	the notice 	to employees
was 	not posted at 	the 	Fairgrove 	School 	site.
4

In order to 	elicit 	facts 	regarding 	the 	District's 	compliance
efforts, 	a hearing was held on October 23, 	1997.3 After timely-
filing of briefs, 	the matter was 	submitted 	for decision on
December 22, 	1997.
FACTS
The 	Milan Letter/Incident 	Report
During 	the 	formal 	hearing 	in 	the underlying unfair practice
case, 	several witnesses 	testified regarding the Milan document.4
Rudy Chavarria, 	District 	operations 	supervisor and Ortiz's
supervisor, 	attested to the 	existence of 	a 	letter written by
Milan regarding Ortiz.5
In response to questions 	from the ALJ, 	Assistant
Superintendent 	of 	Personnel 	Services 	Barbara Koehler 	testified
that Milan, 	a campus patrol officer, 	submitted a written document
to 	her 	site 	supervisor concerning an 	incident 	involving Milan 	and
Ortiz 	that occurred on May 18, 	1994. 	Koehler stated that 	the
document 	was 	not 	kept 	in the District's 	central 	office personnel
files which she maintains, 	but 	that 	it may have been kept by the
site 	supervisor.6
3The hearing was originally scheduled for July 17, 	1997, 	but
was 	delayed to 	accommodate 	the 	superintendent's 	schedule.
4The hearing was held on November 22 	and December 7, 	1995;
official 	notice 	is 	taken of 	the transcript 	of 	that 	hearing, 	as
well 	as 	the 	entire unfair practice 	case 	file.
Reporter's Transcript, Vol. 	I, pp. 83-86.
Reporter's Transcript, Vol. II, pp. 	99-104.
5

Marcelo Pantoja, 	a District 	employee 	and CSEA officer and
job 	steward, 	testified that 	he was 	shown a 	letter regarding Ortiz
by George Cota, 	maintenance and operations director, 	during May
1994. 	Pantoja 	stated that 	he 	did not 	see 	a 	signature 	on the
letter, 	but 	that 	Cota told him it was 	from Milan.7
At 	the compliance hearing, 	Pantoja, 	Ortiz and Vern Wallery,
a District 	employee 	and CSEA officer, 	all 	credibly testified
regarding 	the 	Milan document 	which detailed 	the 	incident 	between
Milan and Ortiz. 	Ortiz 	stated that Chavarria, 	his 	supervisor,
called him into his office on June 	13, 	1994, 	to discuss the
letter. 	During the meeting, 	at which Cota was also present,
Chavarria 	read aloud portions 	of 	a 	letter 	regarding Ortiz 	that 	he
stated was 	written by Milan.
Pantoja 	reiterated the 	testimony he 	gave 	in the 	unfair
practice 	hearing, 	again testifying that 	he 	had been shown a 	copy
of 	the 	letter by Cota. 	Although he 	did not 	see 	a 	signature 	on
the 	letter, 	Cota told him it was 	from Milan.
Wallery testified that 	she was 	shown a 	copy of 	a 	letter
regarding Ortiz by Chavarria, 	her supervisor, 	in his office 	in
late May or early June 	1994. 	Chavarria 	told her the 	letter was
written by Milan.
Kramar testified 	that 	he 	had no 	knowledge 	of 	the whereabouts
or existence 	of 	the Milan letter/incident 	report. 	In response 	to
the 	PERB 	decision order, 	his 	inquiry regarding the 	document
extended only to 	questioning 	Koehler 	concerning 	its 	whereabouts.
7Reporter's Transcript, Vol. II, pp. 54-57.
6

Koehler testified that 	the personnel 	files 	she 	keeps 	in 	the
central 	office 	do not 	contain a Milan 	letter/incident 	report.
When asked about 	her efforts 	to produce 	the document 	after the
issuance of 	the Board's decision, 	she 	testified that 	she made no
inquiries 	of 	any District 	personnel 	at 	any time 	to 	ascertain
whether they were 	aware 	of 	the 	location of 	the 	document.
The District called only one witness, 	Cota. 	In response to
the District's 	question, 	Cota denied meeting with Pantoja on June
13, 	1994, 	the date on which Pantoja testified Cota 	showed him the
Milan letter. 	This testimony is discredited, 	however, 	since, 	in
response 	to CSEA's 	questions, 	Cota admitted to not 	remembering
anything he did on that 	date 	or on the 	following date.
Posting of 	the Notice 	to Employees 	at 	Fairgrove 	School
Koehler testified that, 	to her knowledge, 	the notice to
employees 	was posted throughout 	the 	District 	as 	required by the
PERB order. 	However, 	she had no 	independent knowledge 	that 	the
notice was posted at 	Fairgrove 	School. 	She 	stated that 	she was
never 	informed that 	the 	notice was 	not posted there 	until 	the
issue 	arose 	during compliance proceedings. 	Koehler offered
confusing 	and evasive 	testimony 	regarding whether 	the 	school 	site
was 	operational 	during the posting period. 	She 	indicated that
the 	school 	was 	closed 	for construction at 	some 	time 	during the
posting period, 	but was unclear as 	to the dates 	and extent 	of 	the
closure 	(i.e., 	whether it 	included classrooms and/or offices).
She was 	also unclear as 	to whether classified employees were
working at 	the 	site during the 	construction.
77

Wallery testified that 	she 	was 	informed by CSEA vice
president Sharon Fernandez, 	an employee at Fairgrove School, 	that
the notice to employees was not posted at 	that 	site. 	Wallery
stated that 	she 	informed Koehler of 	this by telephone, 	and that
Koehler told her she would look 	into 	the matter. 	Wallery also
testified that 	she 	telephoned and 	spoke 	to Fernandez 	at 	the 	site
regularly during the posting period. 	In addition, 	she 	stated
that, 	in her role as a clerk typist 	II, 	she 	sent 	substitute
employees 	to Fairgrove 	School 	to replace 	absent 	employees 	during
the posting period. 	Wallery's 	testimony was 	clear and
unequivocal and, 	as such, 	is credited.
DISCUSSION
EERA section 	3541.5(c) 	grants 	PERB 	the 	following authority:
The board shall 	have 	the power to 	issue 	a
decision 	and order 	directing 	an 	offending
party to 	cease 	and desist 	from the unfair
practice 	and to 	take 	such affirmative 	action,
including but 	not 	limited to 	the
reinstatement 	of 	employees with or without
back pay, 	as will effectuate the policies of
this chapter.
PERB Regulation 	329808 states 	that 	responsibility 	for determining
that 	parties 	have 	complied with 	final 	Board orders 	rests 	with
PERB's general 	counsel.
The District 	in this 	case 	argues 	that 	the burden 	for showing
non-compliance 	rests with CSEA. 	The District 	is wrong. 	The
District was 	ordered by PERB 	to 	take 	certain actions 	as 	a 	remedy
for unfair practices 	it 	committed 	in violation of 	the 	EERA.
8PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
8

Additionally, 	section B of 	the 	order required the 	District 	to
file 	written notification with PERB 	of 	the 	actions 	taken 	to
comply with the order. 	Therefore, 	it 	is the District's burden to
demonstrate 	to 	PERB 	that 	it 	has 	complied with the 	Board's 	order.
The 	Milan Letter/Incident 	Report
The District admitted in its May 8, 	1997, 	response to PERB's
request 	for a 	statement 	of 	compliance 	that 	it 	had not 	complied
with that portion of 	the 	Board's 	order requiring 	it 	to give 	CSEA
a copy of 	the Milan letter/incident 	report. 	Its defense 	for non-
compliance 	is 	that 	CSEA has not proven that 	the District
possesses the Milan document or that 	it 	even exists. 	As noted
above, 	the District 	incorrectly places 	the burden on CSEA, 	when
it 	is 	the District 	that 	PERB has ordered to produce 	the 	document.
Furthermore, 	this 	is the 	first 	time that the District has argued
that 	the document does not 	exist.
Implicit 	in the ALJ's proposed decision order, 	upheld by the
Board in PERB Decision No. 	1184, 	is a finding that 	the Milan
letter/incident 	report 	exists. 	The 	existence of 	the 	document was
never in dispute during the unfair practice hearing, 	nor was 	it
raised by the 	District 	in 	its post-hearing briefs 	to the ALJ. 	In
fact, 	the District 	affirmed the 	existence of 	the Milan document
in its post-hearing reply brief when 	it 	stated that, 	if 	CSEA had
requested the ALJ to 	issue 	a 	subpoena 	duces 	tecum 	for 	the
document, 	"the ALJ could have 	reviewed the 	'Milan' 	letter and
99

made 	a determination as 	to 	its 	relevance 	to this matter."9 In
light of this 	statement, 	it 	is not 	surprising that 	the District
also did not 	raise 	the 	issue 	of 	the 	document's 	existence 	in 	its
appeal 	to the Board of the ALJ's 	decision.
PERB has 	held that 	compliance 	hearings 	cannot 	be used to
litigate 	defenses 	that were 	not 	raised at 	the 	underlying unfair
practice 	hearing. 	(Brawley Union High School 	District 	(1983)
PERB Decision No. 	266a.) 	Thus, 	since the District did not raise
the existence 	(or lack thereof) 	of 	the Milan letter/incident
report during the unfair practice hearing, 	it 	has waived its
right 	to 	raise 	this 	defense 	in compliance proceedings.
Even if 	the District had not waived this defense, 	however,
the 	record 	in 	this 	case 	clearly establishes 	that 	the 	Milan
document 	exists. 	In the unfair practice hearing, 	Chavarria and
Koehler, 	District management and supervisory personnel, 	both
attested to the 	existence of 	the document. 	In the compliance
hearing, 	classified employees Ortiz, 	Pantoja and Wallery all
testified as 	to their knowledge 	of 	the document. 	The District
argues that 	the 	testimony of Ortiz, 	Pantoja and Wallery should be
disregarded since 	it 	is hearsay. 	However, 	their testimony is
relied upon only to 	corroborate 	that 	of 	competent 	evidence 	taken
9Respondent's reply brief, 	page two, 	footnote one, 	filed
with PERB on April 	6, 	1996.
10

in 	the unfair practice hearing, 	and 	is 	therefore permitted under
PERB Regulation 32176.10
Cota, 	called by the District 	to dispute 	testimony that 	he
had shown the Milan 	letter to 	Pantoja, 	was believable 	only when
he 	admitted to not 	remembering what 	he 	did on the 	day the 	alleged
meeting 	took place.11 Koehler never denied the 	existence 	of 	the
document. 	Rather, 	she repeatedly stated that 	she had made no
effort 	to 	locate 	it beyond reviewing her own files.
Posting of 	the Notice 	to Employees 	at 	Fairgrove 	School
The 	record 	reflects 	conflicting 	testimony 	regarding 	the
posting of 	the notice 	to employees 	at 	Fairgrove 	School.
Koehler had only general 	knowledge 	of 	the posting 	throughout 	the
District. 	She 	asserted that 	the 	school 	was not 	in operation
during the posting period, 	but was unable 	to be 	specific
regarding the dates 	and extent of 	the closure. 	Wallery, 	on the
other hand, 	contended that 	Fairgrove School was operational. 	In
support 	of 	this 	contention, 	she 	testified that 	she provided the
10PERB Regulation 32176 provides, 	in pertinent part:
Compliance with the 	technical 	rules 	of
evidence 	applied 	in the 	courts 	shall 	not 	be
required. 	Oral 	evidence 	shall 	be 	taken only
on oath or affirmation. 	Hearsay evidence 	is
admissible but 	shall 	not 	be 	sufficient 	in
itself 	to 	support 	a 	finding unless 	it would
be 	admissible 	over objection 	in 	civil
actions.
11If the 	District 	wished to 	impeach the 	testimony of 	Ortiz
and Wallery, 	it 	could have called their supervisor, 	Chavarria, 	as
a witness, 	since he 	is 	the person who purportedly either read or
showed them the 	letter. 	Curiously, 	despite Chavarria's presence
at the hearing, 	the District chose not to do so.
11

school with substitute employees 	during this 	time. 	Wallery also
stated that 	she was 	informed by an employee who was working at
Fairgrove 	School 	during the 	posting period that 	the 	notice was
not 	posted.
The purpose 	of posting a notice of 	a Board decision 	is 	to
inform employees 	that 	the 	District 	has 	acted 	in an unlawful
manner, 	is being required to cease 	and desist 	from this 	activity,
and will 	comply with the Board's 	order. 	The Board has 	found that
such a posting effectuates 	the purposes 	of EERA. 	(Placerville
Union School District 	(1978) 	PERB Decision No. 	69.) 	Since the
District 	failed to prove 	that 	the notice 	to employees was posted
at 	the Fairgrove 	School, 	and in order to ensure 	that 	employees
are 	informed of 	PERB Decision No. 	1184, 	the District must post
the notice 	to 	employees 	at 	that 	site 	according to the
specifications 	below.
CONCLUSION
Based on the entire 	record in this 	case, 	I 	find that 	the
District 	has 	failed to comply with the 	Board's 	order 	in Decision
No. 	1184. 	The District 	failed to produce the Milan
letter/incident 	report 	both when requested by CSEA, 	during the
initial 	compliance proceedings 	and at 	the 	compliance 	hearing.
Moreover, 	the 	District made no good faith effort 	to obtain the
document. 	Koehler's 	lack of diligence 	in attempting to 	find the
document 	is 	particularly appalling 	since 	she 	testified 	in the
unfair practice hearing that 	it 	might 	be 	in the possession of 	the
site supervisor. 	Additionally, 	as 	the District's 	custodian of
12

records, 	Koehler was not 	only required to produce 	the Milan
document 	to 	comply with the 	Board's 	order but 	also was 	required
to present 	it 	at 	the 	compliance 	hearing pursuant 	to a 	subpoena
duces tecum. 	In light of the above, 	the District's noncompliance
constitutes 	nothing 	less 	than a 	refusal 	to 	comply with the
Board's 	order. 	The 	record also 	supports 	a 	finding that 	the
notice to employees 	attached to PERB Decision No. 	1184 	must be
posted at 	Fairgrove 	School.
REMEDY
Section 3541.5(c) 	grants 	PERB 	the 	authority to order an
offending power 	to 	cease 	and desist 	from an unfair practice 	and
take 	any affirmative 	actions 	that will 	effectuate 	the policies 	of
the Act. 	These actions 	include 	the 	removal 	of materials 	from
District 	files. 	(San Diego Unified School District 	(1980) 	PERB
Decision No. 	137; 	Rio Hondo Community College District 	(1983)
PERB Decision No. 	292.)
In PERB Decision No. 	1184, 	the Board found that the Milan
document 	formed 	the basis 	of 	a written reprimand given 	to Ortiz
on November 7, 	1994. 	It ordered the District to give the
document 	to CSEA, 	and to allow Ortiz 	to 	file a supplemental
rebuttal 	to 	the 	reprimand. 	Because 	of 	the District's 	failure 	to
produce the document, 	it 	is 	impossible 	for Ortiz 	to file a
supplemental rebuttal. 	Under these circumstances, 	it 	is patently
unfair to allow the 	letter of 	reprimand to 	remain 	in Ortiz's
personnel 	file. 	Therefore, 	it 	is appropriate to order the
13

District 	to expunge the November 7, 	1994, 	written reprimand from
Ortiz's personnel 	file.
It 	is 	also appropriate 	that 	the District 	be 	required to post
a 	copy of 	the notice 	to employees 	attached to 	PERB Decision No.
1184 	at 	the Fairgrove School 	site.
The 	final 	issue 	to address 	is 	CSEA's 	request 	for attorneys
fees 	and costs. 	PERB has held that 	an award of 	attorneys 	fees 	in
cases 	which are without 	merit 	and brought 	in bad 	faith 	is
appropriate 	to 	discourage 	and remedy such 	forms 	of 	litigiousness.
(Chula Vista School District 	(1982) 	PERB Decision No. 	256.) 	The
Board has 	awarded 	costs 	when 	cases 	repeatedly raise
nonmeritorious 	complaints or are vexatious, 	frivolous 	and in
defiance 	of 	a Board order. 	(United Professors 	of 	California
(Watts) 	(1984) 	PERB Decision No. 	398-H; 	Los Angeles Unified
School 	District/California 	School 	Employees Association 	(Watts)
(1982) 	PERB Decision No. 	181a.)
In this 	case, 	the District's 	failure not only to produce 	the
Milan document, 	but 	even to conduct 	a diligent 	search for the
document, 	constitutes a refusal 	to comply with the Board's order.
The District's only defense 	for its 	failure to comply, 	i.e., 	that
the Milan document never existed, 	is wholly without merit.
Moreover, 	the District waived its 	right 	to raise this defense
when 	it 	failed to raise 	it 	in prior proceedings. 	The District's
actions 	led to the 	instant hearing, 	at 	a significant 	expense of
time 	and money to 	all 	parties. 	Such an abuse of 	the 	Board's
processes merits 	sanctions and, 	at the very least, 	the award of
14

fees and costs to CSEA. 	Therefore, 	it 	is appropriate to order
the District 	to pay to CSEA costs 	and reasonable 	attorneys' 	fees
to 	offset 	the 	expenses 	and 	time 	incurred by CSEA related to 	the
compliance hearing. 	(United Professors of California 	(Watts).
supra, 	PERB Decision No. 	398-H.)
PROPOSED 	ORDER
Upon the 	foregoing findings of 	fact, 	conclusions of 	law and
the 	entire record in this 	case, 	it 	is 	found that 	the Hacienda La
Puente Unified School 	District 	(District) 	has 	failed to 	comply
with 	an 	order 	issued by the 	Public 	Employment 	Relations 	Board
(PERB) 	in California School 	Employees Association and 	its
Hacienda La 	Puente 	Chapter #114 	v. 	Hacienda La 	Puente Unified
School District 	(1997) 	PERB Decision No. 	1184 	(Decision No.
1184). 	It 	is hereby ordered that the District shall:
1. 	Expunge 	from Sam Ortiz's personnel 	file 	the written
reprimand issued to him on November 7, 	1994.
2. 	Within ten 	(10) 	work days of the service of a final
decision 	in this matter, 	post 	a copy of 	the notice 	to employees
attached to Decision No. 	1184 	at the Fairgrove School 	site. 	The
notice 	should be 	subscribed by an 	authorized agent 	of 	the
District, 	indicating that 	it will 	comply with the 	terms of 	the
order in Decision No. 	1184. 	Such posting shall be maintained for
a period of 	thirty 	(30) 	consecutive work days. 	Reasonable 	steps
shall 	be 	taken to 	ensure 	that 	the notice 	shall 	not 	be 	reduced 	in
size, 	altered, 	or covered with any other material.
1
- -
5

3. 	Pay to 	the 	California 	School 	Employees Association
(CSEA) 	costs and attorneys' 	fees 	incurred relating to the 	conduct
of 	the 	compliance hearing in this 	case. 	Such costs 	and fees will
be 	awarded 	in an amount 	established by a 	statement, 	supported by
declaration 	and 	submitted 	to 	the 	District 	by CSEA, 	subject 	to
review by 	PERB.
4. 	Within ten 	(10) 	work days of 	the 	service of a 	final
decision in this matter, 	post 	at 	all work locations where notices
to 	classified employees 	are 	customarily posted copies 	of 	the
notice 	attached hereto as Appendix. 	The 	notice 	should be
subscribed by an authorized agent 	of 	the 	District, 	indicating
that 	it will 	comply with the terms of this order. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive work
days. 	Reasonable 	steps 	shall be taken to ensure that this notice
shall 	not be 	reduced in size, 	altered, 	or covered with any
material.
5. 	Upon issuance of a final decision in this matter, 	make
written notification of 	the 	actions 	taken 	to comply with this
order 	to 	the 	San Francisco Regional 	Director of 	PERB 	in
accordance with the Regional 	Director's 	instructions. 	Continue
to report, 	in writing, 	to the Regional Director thereafter as
directed. 	All 	reports 	shall 	be 	concurrently served on CSEA.
Pursuant to California Code of Regulations, 	title 	8,
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
16

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 Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before the close of business 	(5 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 Cal. 	Code Regs., 	tit. 	8,
sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	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 Cal. 	Code Regs., 	tit. 	8, 	secs.
32300, 	32305 and 32140.)
Jerilyn Gelt
Hearing 	Officer
17