Los Angeles Unified School District (Association of Public School Supervisory Employees) (PERB 1153E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATION OF 	PUBLIC 	SCHOOL
SUPERVISORY 	EMPLOYEES,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-3512
PERB Decision No. 	1153
June 6, 	1996
Appearance: 	Association of 	Public 	School 	Supervisory Employees
by Wanda Robinson, 	Labor Relations Representative.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(Board) 	on appeal 	of 	a Board agent's 	dismissal
(attached) 	of an unfair practice 	charge 	filed by the Association
of 	Public School 	Supervisory Employees 	(APSSE). 	In its 	charge,
APSSE 	alleged 	that 	the 	Los 	Angeles 	Unified 	School 	District
violated section 3543.5(a) 	and 	(b) 	of 	the 	Educational 	Employment
Relations Act 	(EERA)1 when it unilaterally changed the policy for
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	states, 	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
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evaluating 	classified 	supervisors.
The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters 	and APSSE's 	appeal. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	of 	prejudicial 	error and adopts 	them
as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-3512 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman Caffrey and Member Dyer 	joined 	in 	this 	Decision.
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
March 15, 	1996
Wanda Robinson, 	Regional Representative
Association of Public School
Supervisory Employees, APSSE
Post Office Box 151022
Los Angeles, 	California 	90015
Re:. 	Unfair Practice Charge No. 	LA-CE-3512, Association of Publi
-----School Supervisory Employees. 	APSSE v. 	Los Angeles Unified
School District -
DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT
c
Dear Ms. Robinson:
The above-referenced charge alleges 	the Los Angeles Unified
School District 	(LAUSD) 	violated Educational 	Employment Relations
Act 	(EERA or Act) 	section 3543.5(a) 	and 	(b) 	by unilaterally
changing 	the policy for evaluating classified supervisors.
I indicated to you, 	in my attached letter dated February 27,
1996, 	that the above-referenced charge did not state a prima
facie case. 	You were advised that, 	if there were any factual
inaccuracies 	or additional 	facts which would correct 	the
deficiencies explained in that letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to March
8, 	1996, 	the charge would be dismissed. 	You contacted me on
March 8, 	1996, 	and indicated that you would be mailing an amended
charge that day.
I have not 	received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons contained in my February 27, 	1996 	letter.
Right 	to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
an appeal 	to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 	shall apply.
The Board's address is:
-

LA-CE-3512
March 15, 	1996
Page 2
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal to issue a complaint,
any other party may file with the Board an original and five
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All documents authorized to be 	filed herein must also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of service"
must accompany each copy of a document served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will be considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request 	for an extension of time, 	in which to file a document
with the Board itself, 	must be 	in writing and filed with the
Board at 	the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of service of the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
Final Date
If no appeal 	is filed within the specified time limits, 	the
dismissal will become 	final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By Tammy L. Samsel
Regional Attorney
Attachment

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
February 27, 	1996
Wanda Robinson, 	Regional Representative
Association of Public School
Supervisory Employees, APSSE
Post Office Box 151022
Los Angeles, 	California 90015
Re: 	Unfair Practice Charge No. 	LA-CE-3512, Association of Public
School Supervisory Employees. 	APSSE v. 	Los Angeles Unified
School District
WARNING LETTER
Dear Ms. Robinson:
The above-referenced charge alleges the Los Angeles Unified
School District 	(LAUSD) 	violated Educational Employment Relations
Act 	(EERA or Act) 	section 3543.5(a) 	and 	(b) 	by unilaterally
changing the policy for evaluating classified supervisors. 	My
investigation revealed the 	following information.
The Association of Public School Supervisory Employees 	(APSSE)
filed this charge on January 11, 	1995. 	On March 10, 	1995, 	the
parties placed the charge in abeyance. 	On October 24, 	1995,
after a pre-complaint meeting with Marc S. 	Hurwitz, 	the charge
was taken out of abeyance.
In this charge, 	APSSE alleges the District unilaterally changed
the policy for evaluating classified supervisors. 	APSSE contends
it learned of this policy change in September of 1994, 	while
presenting a grievance regarding the evaluation of 	classified
supervisor, 	Shirley Knight. 	In sum, 	APSSE claims the following:
first, 	APSSE filed a grievance on behalf of Knight because her
evaluation was improper, 	and then during the Step II meeting
regarding Knight's grievance, 	APSSE learned the District changed
the evaluation policy for classified supervisors.
On or about July 11, 	1994, 	APSSE filed a grievance alleging the
performance evaluation of Shirley Knight was improper. 	The
grievance alleged violations of personnel 	commission rule 702
section D-l, 	and D-2.1 APSSE claims that during a Step II
1These sections provide:
Review of 	the performance evaluation by the
next higher level of administrative authority
-- -- - 	--~~

LA-CE-3512
February 27, 	1996
Page 2
meeting in September of 	1994, 	it 	learned the District
unilaterally 	changed policy 	for 	evaluating 	the 	classified
supervisors.2
APSSE 	alleges 	the 	policy 	for 	evaluating 	classified 	supervisors 	is
found 	in an employee handbook. 	A District 	guide, 	entitled
"Performance 	Evaluation and Employee 	Productivity," 	includes
various 	evaluation procedures, 	including a 	section 	on 	conducting
an evaluation 	conference. 	Within that 	section 	the 	guide 	states:
Each 	supervisor 	should use 	the 	evaluation
conference 	to: 	explain to the employee 	the
nature 	of 	each 	factor 	checked 	and 	the
comments written on 	the 	form, 	remembering
that 	such written 	comments 	must 	accompany 	any
individual 	evaluation 	rated below 	standard,
and provide 	specific 	examples 	of below
standard performance 	and 	necessary
improvement.
The guide 	is 	also 	subtitled, 	"A Guide 	for the Evaluation of
Employee 	Performance 	in the 	Classified Service." 	A letter 	from
the 	Superintendent 	of 	Schools 	within 	the 	guide 	introduces 	the
may be made before 	or after an 	individual
evaluation 	conference 	is 	held with 	each
employee. 	Any comments 	recorded on the
performance 	evaluation 	form by 	the 	reviewer
shall 	be 	signed and 	shown 	to 	the 	supervisor
who made 	the 	evaluation and 	to 	the 	employee.
Employees 	and evaluators 	are 	encouraged 	to
arrive 	at 	a mutual 	understanding and
acceptance 	of 	the 	evaluation during 	the
conference. 	An employee who believes 	that
the 	evaluation 	is 	improper may go 	to 	the
evaluator's 	immediate 	supervisor 	to 	resolve
differences. 	If a permanent 	employee has
received one 	or more 	checks 	in 	the 	"below
performance 	standards" 	column and 	remains
dissatisfied 	after 	review by 	the 	evaluator's
supervisor, 	the procedures provided in Rule
893 	may be used.
20n December 15, 	1994, 	Francis Nakano, 	the Assistant
Superintendent, 	concluded during 	the Step 	III meeting 	that
Personnel 	Commission Rule 	702 	had not 	been violated.

LA-CE-3512
February 27, 	1996
Page 3
guide as a 	"restatement of principles and practices" 	for
supervisors 	to 	follow when evaluating subordinates.
The charge fails to present a prima facie violation of EERA §
3543.5 (a) 	and 	(b). 	The duty owed to a non-exclusive
representative 	is 	to provide notice and a reasonable opportunity
to discuss wages, 	fringe benefits, 	and other matters of
fundamental 	concern to the employment 	relationship before the
employer reaches a decision on such matters. 	(Los Angeles
Unified School District 	(1983) 	PERB Decision No. 	285.) 	To
establish a violation of EERA 3543.5(a) 	and 	(b), 	the Association
has the burden of demonstrating the District 	failed to give it
notice and a reasonable opportunity to meet and consult. 	(Butte
Community College District 	(1989) 	PERB Decision No. 	743.)
The charge 	fails to provide facts establishing the District
altered a past practice or policy. 	The charge does not establish
the above-referenced performance 	evaluation guide applied to
classified supervisors. 	If the guide is applicable, 	the charge
also fails 	to demonstrate how the District 	failed to 	follow the
above-referenced sections of 	the performance evaluation guide,
when it evaluated Knight.
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this letter or additional 	facts which would correct the
deficiencies explained above, 	please amend the charge. 	The
amended charge 	should be prepared on a standard PERB unfair
practice charge 	form, 	clearly labeled First Amended Charge,
contain all the facts and allegations you wish to make, 	and
be signed under penalty of perjury by the charging party. 	The
amended charge must be served on the respondent and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before March 8, 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-7508.
Sincerely,
Tammy L. 	Samsel
Regional Attorney