Lodi Unified School District (PERB 1486E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
NANCY LOUISE VINCELET,
Charging Party,
V .
LODI UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SA-CE-2036-E
PERB Decision No. 1486
June 28, 2002
Appearance: Nancy Louise Vincelet, on her own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Nancy L. Vincelet (Vincelet) of a Board agent's dismissal of her unfair
practice charge. The charge alleged that the Lodi Unified School District (District) violated
section 3543.5 of the Educational Employment Relations Act (EERA)' by denying Vincelet
due process.
After reviewing the entire record and based upon the following discussion, we dismiss
Vincelet's charge consistent with the following discussion.
FACTUAL SUMMARY
Vincelet filed the original unfair charge on June 8, 2001, and an amended charge on
July 10, 2001. Therein, Vincelet provides the following information.
EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated all statutory references herein are to the Government Code.

Vincelet was employed with the District as a payroll assistant. For undisclosed reasons
in June 2000, she was placed on leave from the District. Thereafter, Vincelet requested a
hearing, which was set for December 8, 2000, before an administrative law judge (ALJ) from
the Office of Administrative Hearings (OAH).
On November 17 and November 30, 2000, Vincelet sent two letters to the District in
which she requested a list of witnesses and documents that she wanted the District to provide
for the hearing. On November 28, 2000, the District sent a letter to Vincelet which provided
the phone number and address of the OAH. Vincelet attempted to call the phone number at
least twice prior to the December 8 hearing. On the basis of the response she received from the
two calls, Vincelet decided that the number was incorrect.
At the hearing on December 8, Vincelet attempted to explain to the ALJ that the
District had given her the wrong phone number for the OAH. However, the ALJ proceeded to
hold the hearing with the witnesses present. Vincelet further alleges that the District's three
witnesses were biased against her before they testified at the hearing and that the ALJ gave
unwarranted credibility to the testimony of one of the District's witnesses.
On December 26, 2000, Vincelet received a letter from the District stating that the ALJ
recommended to the District's Board of Education that her employment with the District be
terminated. She was subsequently terminated.
In her appeal of the Board agent's dismissal, Vincelet presents new allegations that
audio tapes of the December 8 hearing were altered by the District.
DISCUSSION
The Board finds that most of the conduct underlying the unfair practice charge occurred
outside EERA's six-month statute of limitations and that the alleged conduct occurring within
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the statutory period failed to state a prima facie case of violation of EERA. Vincelet alleges
that the District provided her with the wrong phone number for the OAH, resulting in her
inability to obtain witnesses for the December 8 hearing, which in turn affected the outcome of
the hearing by denying her "due process."
EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) The charging party bears the burden of
demonstrating that the charge is timely filed. (Tehachapi Unified School District (1993) PERB
Decision No. 1024; State of California (Department of Insurance) (1997) PERB Decision
No. 1197-S.)
Vincelet has not met the burden of demonstrating that her allegations regarding events
occurring before December 8, 2000, were timely filed. Because the charge was filed on
2 EERA section 3541.5(a)(1) states, in pertinent part:
The initial determination as to whether the charges of unfair
practices are justified, and, if so, what remedy is necessary to
effectuate the purposes of this chapter, shall be a matter within
the exclusive jurisdiction of the board. Procedures for
investigating, hearing, and deciding these cases shall be devised
and promulgated by the board and shall include all of the
following:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following:
(1) Issue a complaint in respect of any charge based upon an
alleged unfair practice occurring more than six months prior to
the filing of the charge.
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June 8, 2001, only alleged conduct of which she was aware on or after December 8 would meet
the requisite statute of limitations. The District sent her the letter containing the disputed
phone number on November 28, 2000. Vincelet determined prior to December 8 that the
number was incorrect. Thus, she was aware prior to December 8 of the alleged conduct
underlying the original charge.
As Vincelet did not meet her burden of establishing that the allegations occurring
before December 8 were timely, that portion of the charge is dismissed as outside of the statute
of limitations.
With regard to the December 8, 2000, hearing, Vincelet's allegations that the District's
witnesses were biased and that the ALJ awarded unwarranted credibility to one of the
witnesses do not establish interference with protected activity under EERA. Vincelet did not
present any facts to support these allegations, nor did she explain why they are relevant to the
charge that the District violated her rights to "due process" by giving her an incorrect phone
number for OAH. While it is possible that she could argue that these allegations constitute an
interference violation of EERA, she has not demonstrated such a violation.
The test for whether a respondent has interfered with the rights of employees under
EERA' does not require that unlawful motive be established, only that at least slight harm to
Rights of public school employees are found in EERA section 3543, which provides,
in pertinent part:
(a) Public school employees shall have the right to form, join,
and participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of
employer-employee relations. If the exclusive representative of a
unit provides notification, as specified by subdivision (a) of
Section 3546, public school employees who are in a unit for
which an exclusive representative has been selected, shall be
required, as a condition of continued employment, to join the

employee rights results from the conduct. The charging party must establish that the
respondent's conduct tends to or does result in some harm to employee rights granted under
EERA. (State of California (Department of Developmental Services) (1983) PERB Decision
No. 344-S, citing Carlsbad Unified School District (1979) PERB Decision No. 89; Service
Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.)
Vincelet provides no facts to demonstrate that the conduct of the District's witnesses
during the December 8 hearing caused even slight harm to the rights guaranteed to her under
EERA.
Finally, Vincelet newly alleges on appeal that the District altered the tape recorded
testimony of witnesses and successfully encouraged a union witness to alter tape recorded
testimony. PERB Regulation 32635" states, in pertinent part:
(b) Unless good cause is shown, a charging party may not
present on appeal new charge allegations or new supporting
evidence.
In South San Francisco Unified School District (1990) PERB Decision No. 830, the
Board addressed this regulation and found:
The purpose of PERB Regulation 32635(b) is to require the
charging party to present its allegations and supporting evidence
to the Board agent in the first instance, so that the Board agent
can fully investigate the charge prior to deciding whether to issue
a complaint or dismiss the case.
recognized employee organization or to pay the organization a
fair share services fee, as required by Section 3546. If a majority
of the members of a bargaining unit rescind that arrangement,
either of the following options shall be applicable.
* PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
U

Vincelet has not shown good cause nor provided any rationale for presenting new
allegations in her appeal. Thus, the new information shall not be considered in this appeal.
ORDER
The unfair practice charge in Case No. SA-CE-2036-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
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