Los Angeles Unified School District * * * OVERRULED IN PART by Walnut Valley Unified School District (2016) PERB Decision No. 2495 (PERB 1552E)

OVERRULED IN PART by Walnut Valley Unified School
District (2016) PERB Decision No. 2495
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LAW ANDA BAILEY,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4355-E
PERB Decision No. 1552
October 	21, 	2003
Appearance: William D. Evans, Attorney, for Lawanda Bailey.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Lawanda Bailey (Bailey) of a Board agent's dismissal of her
unfair practice charge. 	The charge alleged that the Los Angeles Unified School District
(District) violated the Educational Employment Relations Act (EERA) 1 by discriminating
against her for engaging in protected conduct. Bailey alleged that this conduct constituted a
violation of EERA section 3543.5(a).2 Bailey also alleged violations of EERA
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2EERA 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 ofrights guaranteed by this chapter. For

section 3543.S(c) and (e), Government Code section 12940 (discrimination on the basis
of
membership in a protected class), and Cal. Const. Art. I, section 7 (due process and equal
protection provisions). These allegations will not be addressed since there were no facts stated
to support the EERA violations, the other alleged statutory violations are not within
PERB's
purview, and these allegations were not raised in Bailey's appeal.
Upon review
of
the entire record, including Bailey's charge, the warning and dismissal
letters, and Bailey's appeal, the Board affirms the Board agent's dismissal consistent with the
discussion below.
BACKGROUND
Bailey's unfair practice charge may be summarized as follows. 	Bailey alleges that in
December 2000, she and her coworkers noted the substandard performance
of
Phyllis Drake
(Drake), an employee under Bailey's supervision. Bailey alleges that her supervisor, Robert
Smitheal (Smitheal), gave preferential treatment to that employee and that Smitheal blamed
Bailey for Drake's mistakes. On March 14, 2001, Smitheal asked Bailey to change a
performance evaluation she prepared on Drake from "below standards" to "meets standards."
Smitheal also did not respond to memos from Bailey regarding the deficiencies in
Drake's
work. Bailey objected and complained to District Facilities Director, Al Bowen (Bowen), who
on March 14, 2001, met with Smitheal, Bailey and her union representative. At the meeting,
Bowen told Smitheal to not be personally involved with the day-to-day functions
of staff
and
instructed Bailey to hold Drake accountable for her work. Bailey also complained about
Smitheal to other District officials.
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
2

On September 21, 2001, Smitheal issued a memo to clerical staff which stated,
"Do
not
make or accept any phone calls from La Wanda Bailey during working hours." There was also
another vague allegation
of
misconduct in the charge. On October 12, 2001, during a union
hearing, the union informed her that it could not help with her complaints.
Bailey further alleges that the work environment created by Smitheal and Drake
became hostile prompting her to request a lateral transfer. Apparently no comparable
jobs
were available and so beginning October 15, 2001, Bailey accepted a demotion to a part-time,
lower-paying position.
In the charge, Bailey also alleges that she was not paid for eight hours worked
on
June 29, 2001 and her payment for overtime and mileage from the April 2001 pay period was
delayed. 	She attributes the payment discrepancies to Drake and Smitheal. Bailey accuses the
District and the union
of
not investigating these pay errors.
BOARD AGENT'S DISMISSAL
The Board agent found that the original charge failed to provide evidence
of
nexus
between Bailey's complaints to her supervisors and grievances,3 and the September 21 memo,
the denial
of
the lateral transfer requests and non-payment for time worked on June 29, 2001.
The Board agent, in accordance with standard Board practice, also advised Bailey that an
amended charge must be filed by April
1,
2002, or her charge would be dismissed.
In the dismissal, the Board agent noted that on April 5, 2002, Bailey faxed a five-page
amended charge to the Board and separately faxed a proof
of
service. The proof
of
service did
not indicate that the District was served with the amended charge. 	On April 8, 2002, the Board
received hard copies of the faxed documents by mail, the first page of a completed unfair
3The charge only contained a vague allusion to "the grievances filed" but offered no
further information about alleged grievances.
3

practice charge form labeled First Amended Charge, and five memos or letters regarding
various disputes Bailey had with the District. The mailed
proof
of
service also did not indicate
service on the District; yet, the Board agent evaluated the information in the mailed packet as
part
of
her determination that the charge should be dismissed.
According to the Board agent, much
of
the amended charge was reiterative. The Board
agent summarized the amended charge as follows: 	In the amended charge, Bailey alleged that
the September
21
memo was pretextual and was issued because
of
Bailey's conversation with a
new employee. Bailey further alleges that Drake did not inform Smitheal
of
a June 18, 2001
written notice that Bailey planned to return to work after an extended leave
of
absence. 	Upon
return to work on July 2, 2001, Bailey's desk duties were changed, she was moved out
of
her
office, her phone was disconnected, and she was notified
of
her responsibility for clearing the
backlog created during her absence. Bailey again attributed this situation to her refusal to
change Drake's evaluation. Bailey also repeated allegations regarding denial
of
a lateral
transfer and the District's failure to pay overtime due her.4
Evaluating the amended charge, the Board agent again did not find that Bailey
established nexus to state a prima facie case
of
retaliation. The Board agent found that the
September 21 memo did not establish nexus because Bailey was on workers' compensation
leave at the time that the memo was issued5 and it is reasonable for employees to be instructed
4The alleged unpaid overtime includes eight hours for June 29, 2001 and eighteen hours
claimed for work performed at home between October 1, 2000 and November 7, 2000. 	The
latter is identified for the first time in attachments to the amended charge.
5The attachment to the amended charge dated September 9, 2001, identifies Bailey's
extended leave from February 5 through June 29, 2001 to consist partly of workers'
compensation leave and partly of family medical leave. This is the only place in either the
charge or amended charge where the nature of her leaves of absence are identified. However,
in her appeal, Bailey acknowledges that she was absent from February 5 through February 26,
4

not to contact her at home. 6 The Board agent also determined, citing Board precedent for
constructive discharge,7 that Bailey did not demonstrate that her protected activity led to a
working environment that was so unpleasant that she was forced to transfer to a lower paying
job, or that her working conditions were changed because
of
her union activities. Although she
was denied transfers to certain jobs, she was granted a transfer to a job for which she
presumably applied. In addition, the Board agent found that some
of
the complaints involving
non-payment
of
overtime were resolved in her favor, taking notice
of
unfair practice Case No.
LA-CO-1085-E, dismissed on March 7, 2002.8
BAILEY'S APPEAL
Bailey reiterates most
of
the same allegations on appeal regarding Drake's performance
evaluation, the September 21, 2001 memo, the hostile working environment that existed upon
her return to work from leave on July 2, 2001,9 leading Bailey to transfer to a less desirable
part-time job in October 2001. She states that during 2001, her attendance was "sporadic"
2001, March 27 through June 29, 2001, and from August 23 through October 12, 2001 due to
two car accidents and a work-related injury.
6Note that the September 21, 2001 memo also allegedly directed that staff was not to
take calls from Bailey.
7See State
of
California (Secretary
of
State) (1990) PERB Decision No. 812-S (For
constructive discharge based on protected activity, the charging party m
burden imposed must cause and be intended to cause a change in working conditions so
difficult or unpleasant as to force the employee to resign; and (2) the burden was imposed
because
of
the employee's union activities.) (See also, Hacienda La Puente Unified School
District (1988) PERB Decision No. 685; Marin Community College District (1980) PERB
Decision No. 145.)
ust show: (1) the
8A copy of the Board agent's dismissal in Case No. LA-CO-1085-E was not provided
as part of the record in this matter.
9This information is contained only in the amended charge.
5

because
of
two car accidents and a work-related injury. 10 Bailey further alleges that she filed
three grievances with the union regarding payroll issues during June, July, and September
of
2001. Bailey argues that the history
of
Smitheal' s hostility toward her demonstrates a pattern
of
adverse action by Smitheal. Bailey alleges that she was engaged in protected activities
through her grievances with the union and that the District was clearly aware
of
those
grievances. For the first time in her appeal, Bailey also mentions complaints against Smitheal
lodged between November 2000 and October 2001, which she states were resolved at least
partially in her favor. 	Bailey further alleges that the August 28, 2001 letter identified in the
amended charge, in which he counsels Bailey about her work performance, is evidence
of
Smitheal' s illegal motive.
DISCUSSION
The Board finds that Bailey failed to state a prima facie violation
of
EERA section
3543.S(a) for the reasons discussed below.
Procedural Defects in the Amended Charge
The Board finds that the amended charge contains procedural defects that preclude the
Board from consideration
of
that document: a defective proof
of
service and untimely filing.
PERB Regulation 32140 provides,
11
in pertinent part:
(a) All documents referred to in these regulations requiring
'service' or required to be accompanied by 'proof
of
service,'
except subpoenas, shall be considered 'served' by the Board or a
party when personally delivered or deposited in the first-class
mail properly addressed. All documents required to be served
shall include a 'proof
of
service' affidavit or declaration signed
under penalty
of
perjury which meets the requirements
of
Section
10See footnote 5, supra.
11
PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
6

1013(a)
of
the Code
of
Civil Procedure or which contains the
following information
....
(b) Whenever 'service' is required by these regulations, service
shall be on all parties to the proceeding and shall be concurrent
with the filing in question.
The Board will accept documents with a defective service or proof
of
service
if
the
opposing parties received actual notice
of
the filing and ifthere was no showing
of
prejudice
to
the opposing party. (Fontana Unified School District (2003) PERB Order No. Ad-324.) In this
case, Bailey first faxed amendments to the charge12
and mailed a hard copy with additional
documents, which were received by the Board three days later. Both the fax and the hard
copies included a proof
of
service with no indication that the District had been served.
13
There
was also no indication in the dismissal letter that the District had received the amended charge.
As the District did not respond to either the charge or amended charge, the proof
of
service did
not show service to the District, and the Board agent's dismissal did not indicate service
of
the
amended charge to the District, the Board must assume that the District did not receive the
amended charge. Since the amended charge contained additional allegations and attached
documents, the Board may assume that the District was prejudiced by not receiving the
amended charge. 14
12
The faxed documents are not included 	the file but are identified in the dismissal
13
PERB Regulation 32631 requires that an amended charge must meet all the
requirements contained in PERB Regulation 32615 for a charge, including the requirement in
Regulation 32615(c) that "( s]ervice 	proof
of
service on the respondent 	to
Section 32140 are required."
14We respectfully disagree with Member Neima's interpretation of Evidence Code
section 641 and the holding in Glasser v. Glasser (1998) 64 Cal. App. 4th 1004, 1010-11 [75
Cal. Rptr. 2d 621] (Glasser) in his concurrence. The application of Evidence Code section 641
presumes that: "[a] letter correctly addressed and properly mailed
...
(is) received in the
ordinary course of mail." (Emphasis added.) In Glasser, this principle was confirmed for
7

In addition, Bailey did not timely file the amended charge. The Board did not receive
the faxed version of the amended charge until four days after the due date and a hard copy
version, seven days after the due date. The Board agent had advised Bailey of the due date for
filing an amended charge in the warning letter; and, Bailey neither sought an extension of time
(PERB Reg. 32132) nor requested that the Board excuse the late-filed document (PERB Reg.
32136). Therefore, the Board declines to consider Bailey's amended charge in reaching a
decision in this matter and declines to adopt the Board agent's discussion of the amended
charge in the dismissal.
Retaliation
To demonstrate a violation of BERA section 3543.S(a), Bailey must show that: 	(1) she
exercised rights under BERA; (2) the District had knowledge of the exercise of those rights;
and (3) the District imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained or coerced the employees because of the
exercise of those rights. (Novato Unified School District (1982) PERB Decision No. 210
(Novato); Carlsbad Unified School District (1979) PERB Decision No. 89.)
Bailey's complaints to Smitheal regarding Drake's poor performance do not rise to the
level of protected activity. In Oakdale Union Elementary School District (1998) PERB
Decision No. 1246, at pages 18-19, footnote 8, the Board cited with approval, National Labor
Relations Board precedent holding that employee complaints to employers are protected when
service by mail of a notice of entry of judgment, stating that from findings in the lower court's
ruling, the court inferred that the contents of the proof of service substantially complied with
the requirements of Code of Civil Procedure section 1013a. (Id., at p. 1011.) In this case, the
evidence is clear that the proof of service was neither correctly addressed nor properly mailed
to the District and thus did not substantially comply with PERB Regulation 32140. Thus, the
presumption of receipt of service, if applicable to an administrative proceeding, would not
apply in this case.
8

those complaints "are a logical continuation
of
group activity." However, where an
employee's complaint was undertaken alone and for her sole benefit, that individual's conduct
was not protected. (Id., citing Meyers Industries (1984) 268 NLRB 493, 497 [115 LRRM
1025].) Here, Bailey supervises Drake, thus her complaints to a supervisor about a subordinate
would fall within her responsibilities as a supervisor, rather than representing herself in her
employment relationship with the employer. Bailey acted on her own behalf and, without
further information in the charge, ostensibly for her sole benefit. Bailey's conduct may be
distinguished from cases in which the Board found that an employee's complaint concerned an
issue impacting employees generally and thus, was protected.
15
Therefore, for this reason, the
conduct in this matter is not protected.
In the charge, Bailey also did not provide specifics to support her alleged generalized
complaints to Smitheal about Drake's performance. Under PERB Regulation 32615(a)(5), the
charging party must provide
"a
clear and concise statement
of
the facts alleged to constitute an
unfair practice." The charge contains no information regarding the timing
of
Bailey's
complaints or the specific nature
of
the complaints.
Because there is insufficient detail in the charge, we disagree with the Board agent that
the March 14, 2001 complaint to Bowen constituted protected conduct. Complaints regarding
15
In reaching this conclusion, the Board does not alter its holdings in the following
cases: Pleasant Valley School District (1988) PERB Decision No. 708, pp. 13-15, employee
presenting safety concerns to supervisor regarding his job assignment is protected conduct;
Madera County Office
of
Education (1999) PERB Decision No. 1334, proposed decision, pp.
19-20, employee protesting his participation in training offered by another employee is
protected conduct; Los Angeles Unified School District (1999) PERB Decision No. 1338,
employee complaint about school's reimbursement policy is protected conduct; Regents
of
the
University of California (Einheber) (1992) PERB Decision No. 949, proposed decision, p. 6,
employee's criticism of management plus efforts to organize other employees to provide
similar criticism combined constitute protected activity.
9

a supervisor's performance are protected if the performance impacts collective working
conditions. (State of California, Department of Transportation (1982) PERB Decision
No. 257-S (Transportation).) However, the allegations must still be stated with sufficient
specificity. (PERB Reg. 32615(a)(5).) Although the complaint was coupled with a subsequent
meeting with Bowen, Smitheal and her union representative, we are unable to determine
whether the purpose of Bailey's complaint was to advance the collective interest of employees
or was really the result of a personal grudge. 	(Transportation.)
With regard to Bailey's complaints about Srnitheal's preferential treatment of Drake to
other District officials, Bailey's allegations on this issue again lack sufficient detail as required
by PERB Regulation 32615(a)(5) to find her conduct protected. She did not provide the dates
of these complaints nor facts evidencing alleged preferential treatment by Srnitheal, other than
Srnitheal's request to change Drake's performance evaluation. The charge also fails to specify
how Srnitheal's conduct involves treating Drake differently from other employees.
Therefore, the Board finds that there is insufficient information in the charge to
determine whether Bailey engaged in protected conduct. Accordingly, Bailey did not meet the
first prong of the Novato test and thus has failed to state a prim.a facie violation of EERA
section 3543.5(a).
New Allegations on Appeal
PERB Regulation 32635(b) provides:
(b) Unless good cause is shown, a charging party may not
present on appeal new charge allegations or new supporting
evidence.
The Board agent evaluated the allegations 	Bailey's amended charge 	dismissal
although it had not been served on the District. To this date, there is no evidence that the
amended charge was ever served on or received by the District. Nor was the amended charge
10

timely filed. Bailey does not provide any support for raising these new allegations or for
considering the allegations in her amended charge. 16 Because the amended charge should not
have been accepted by the Board, as a matter of due process, it is inappropriate to allow Bailey
to make these claims through the back door on appeal. Therefore, the Board finds that Bailey
has not shown good cause to present what are essentially new allegations on appeal.
In addition, for the first time on appeal, Bailey mentioned unspecified complaints made
against Smitheal from November 2000 through October 2001, which were adjusted at least
partially in her favor. 	Bailey did not describe the nature of these complaints, nor justify why
they were raised for the first time on appeal. Accordingly, we find that Bailey has not shown
good cause under PERB Regulation 32635(b) to present these allegations in her appeal.
ORDER
The unfair practice charge in Case No. LA-CE-4355-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Member Baker joined in this Decision.
Member Neima's concurrence begins on page 12.
16The Board acknowledges that, since the Board agent considered allegations in the
amended charge in rendering the dismissal, Bailey may not have realized that these allegations
were improperly considered. However, the prejudice to the opposing party in not receiving the
amended charge outweighs such considerations for Bailey.
11

NEIMA, Member, concurring: I agree that dismissal
of
this case should be affirmed.
However, I respectfully submit that it is unnecessary for the Public Employment Relations
Board (PERB or Board) to address the issue
of
whether there was a failure
of
proof
of
service.
I
do
not believe the Board must or should "assume the Los Angeles Unified School District
(District) did not receive the amended charge" or "assume that the District was prejudiced by
not receiving the amended charge." Absent argument or affirmative evidence that the District
was not served or was prejudiced, I believe the Board should simply affirm the dismissal as
written. A proof
of
service establishes a rebuttable presumption that service occurred.
(Evidence Code sec. 641; City
of
Sacramento (2003) PERB Decision No. 1541-M (Neima,
concurring); Glasser v. Glasser (1998) 64 Cal.App.4
th
1004 [75 Cal.Rptr.2d 621].) I am aware
of
no authority for the converse proposition: that the absence
of
a proof
of
service creates a
presumption that proper service was lacking. The Board should not, in my opinion, create such
a presumption or raise and address this issue sua sponte on the facts
of
this case.
Based on the foregoing, I do not take issue with the Board agent's consideration
of
the
amended charge. Nevertheless, I find that nothing in Lawanda Bailey's appeal, including the
contents
of
the amended charge, warrants reversal
of
the dismissal.
Subject to the above reservation, I concur in the disposition
of
this case.
12