Los Angeles Unified School District (Woods) (PERB 0874E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

VINCENT DARRYL WOODS,

Charging Party, Case No. LA-CE-2908

Vv. PERB Decision No. 874

LOS ANGELES UNIFIED SCHOOL April 10, 1991

DISTRICT,

Respondent.

Appearances: Vincent Darryl Woods, on his own behalf;
Rochelle J. Montgomery, Assistant Legal Adviser, for Los Angeles
Unified School District.

Before Shank, Camilli and Carlyle, Members.
DECISION AND ORDER

SHANK, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by Vincent
Darryl Woods (Woods) to a proposed decision of a PERB
administrative law judge (ALJ). The proposed decision dismissed
the complaint, which alleged the Los Angeles Unified School
District (District) unlawfully discriminated and retaliated
against Woods in violation of Section 3543.5(a) of the

Educational Employment Relations Act (EERA) .! The Board has

IPERA is codified at Government Code section 3540 et seq.
Section 2543.5 (subsequently amended by Chapter 313 of the
Statutes of 1989, effective January 1, 1990), stated, in
pertinent part, as follows:

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

reviewed the entire record in this case, including the proposed
decision, Woods' exceptions, the District's response thereto, and
the transcript of the hearing, and, in accord with the discussion
below, finds it appropriate to remand this case for the taking of
additional evidence.
The Board notes that Woods' statement of exceptions was
filed one day late. However, the Board excuses this late filing
for good cause (PERB Regulation section 32136'). Further, as the
District responded to Woods' statement of exceptions, the Board
had the opportunity to consider both Woods' and the District's
arguments.
We also note that Woods has filed a late request for oral
argument (PERB Regulation section 32315). 	Because this case is
being remanded so that the hearing may be reopened, the Board
finds it is not necessary to decide whether or not to direct oral
argument in this case.
Finally, the District argues that Woods' statement of
exceptions was not filed in accordance with PERB Regulation
section 32300. We find that the District's argument has merit.
Woods' statement of exceptions was a one-page document which was
uncomprehensible and contained no references to the ALJ's
proposed decision. 	However, once an appeal is filed, the Board
to interfere with, restrain, or coerce
employees because of their exercise of rights
guaranteed by this chapter.
"PERB Regulations are codified at California Code of
Regulations, title 8, section 31001 et seq.
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is not constrained from considering sua sponte legal issues not
raised by the parties when necessary to correct a mistake of law.
(Apple Valley Unified School District (1990) PERB Order No. Ad-	(Apple
209a. ) To the extent that the ALJ instructed Woods that he must,
under EERA, establish that he encouraged other employees to join
and support an employee organization, particularly in light of
the amended complaint, the instruction constituted a narrow and
misleading statement of the law.
At the October 16, 1990 hearing in this case, the ALJ
granted the District's motion to dismiss the complaint, on the
grounds that Woods failed to establish a prima facie violation of
EERA. 	In order to establish a prima facie case, the charging
party must prove: (1) the employee engaged in protected
activity; (2) the employer had knowledge of such protected
activity; and (3) adverse action was taken against the employee
as a result of such protected activity. 	(Novato Unified School
District (1982) PERB Decision No. 210.)
The ALJ's proposed decision dismissed the complaint on the
grounds that Woods failed to establish that he engaged in the
first element of a prima facie case, protected activity. 	The
Board finds that the ALJ reached this conclusion, in substantial
part, by narrowing the focus of the hearing to the allegations in
the original complaint and disregarding those allegations
contained in the amended complaint. 	For instance, at the
hearing, the ALJ stated that it was Woods' burden

to establish that you [Woods] exercised some rights
guaranteed by the Educational Employment Relations Act, namely,
encouraging other employees to join and support an employee	
support
organization. " (Emphasis added. ) In addition, at the hearing,
the ALJ repeatedly advised Woods that he was required to
establish that he engaged in the activity alleged in the original
complaint dated May 29, 1990 (i. e. encouraging other employees to
join and support an employee organization). However, by Order of
an administrative law judge, dated August 13, 1990, the complaint
was amended to add the further allegations, inter alia:
During 1987, 1988, and 1989, the Charging
Party exercised rights guaranteed by the EERA
by protesting or expressing dissatisfaction
regarding the lack of equality in job
assignments, by addressing other working
conditions, and by advising management of his
intention to involve the union in his
protests.
During the hearing, any instruction from the ALJ to Woods
regarding Woods' burden of establishing the exercise of some
protected activity should have, at a minimum, reflected the
allegations of protected activity contained in the amended
complaint.
Furthermore, at the hearing, the ALJ characterized the
August 13 amendment as mere background. The ALJ's
characterization of the amendment to the complaint as background
was erroneous and misleading.'
The ALJ's questioning of the witnesses and statements to
the parties during the hearing perpetuated the ALJ's narrow
application of the law concerning Woods' burden of production on
the issue of protected activity.

Moreover, it is significant that Woods did present evidence
which may be sufficient to establish protected activity. 	Woods'
direct supervisor, Edward Flowers (Flowers), testified that
Flowers' supervisor told him that Woods had a meeting set with a
union representative, and Flowers should make sure it was not
done on work time. William Charles Hunt, III (Hunt), a co-worker
of Woods, testified that a union representative came out to
"visit" with Woods concerning various job-related issues, and
that whenever Woods met with Ernest Cutley, gardening supervisor
and the District's primary witness, Woods wanted his union
representative present to represent him (see e.g. California
State University, Sacramento (1982) PERB Decision No. 211-H;
California State University, Long Beach (1987) PERB Decision No.
641-H) . 	Although the District did not have an opportunity to
-present	present its case, the uncontroverted testimony of Flowers and
Hunt, absent a showing of evidence to the contrary, may be
sufficient to establish that Woods did engage in protected
activity.
Based upon the foregoing, the Board ORDERS the hearing be
reopened and that Woods and the District be permitted to
introduce additional evidence including, but not limited to,
additional testimony of those witnesses who testified at the
hearing on October 16, 1990. 	This case, is therefore, REMANDED
to the Chief Administrative Law Judge who is to proceed in accord
with the above discussion.
Members Camilli and Carlyle joined in this Decision.

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