Los Angeles Unified School District (PERB A368E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LINDA IRIZARRY GOLD,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5072-E
Administrative Appeal
PERB Order No. Ad-368
November 15, 2007
Appearance: Linda Irizarry Gold, on her own behalf
Before Neuwald, Chair; Shek and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Linda Irizarry Gold (Gold) of a Board agent's dismissal 1 of her
unfair practice charge. 	The charge alleged that the Los Angeles Unified School District
(District) retaliated against Gold when it issued her a pre-disciplinary conference
memorandum.
BACKGROUND
On April 26, 2007, 2 Gold filed an unfair practice charge with PERB. 	Gold filed the
charge on her own behalf providing no indication that she was represented. However, on
June 1 she submitted PERB' s Notice of Appearance form listing Anne Wolfstein (Wolfstein)
as her representative.
1Although Gold characterizes her motion as a request to re-open the record, we believe
the request is most appropriately considered an appeal of the dismissal of her charge.
(California Teachers Association (Underhill) (2001) PERB Decision No. 1466.)
2 All dates refer to the year 2007.

The Board agent issued a warning letter on July 17, advising that the charge failed to
allege sufficient facts to demonstrate a prima facie case
of
discrimination. The warning letter
was sent to Wolfstein and requested that the charge be amended or withdrawn by July 24.
Neither Wolfstein nor Gold responded to the warning letter and a dismissal letter was issued on
August
1.
On August 17, Wolfstein wrote to the Board agent stating that she had just received the
Board's correspondence because she had been out
of
the country. Her letter provides, in
pertinent part, as follows:
I am NOT the legal counsel
of
Linda Irizarry Gold and therefore
she should be the one who your correspondence should be sent to.
I am a witness for her case. In fact, I was quite surprised that
requests for facts and clarification[ 3 l were asked
of
me and not
of
her. 	She doesn't even appear on the Proof
of
Service list you
mailed and is completely unaware
of
your correspondence with
me.
Wolfstein's letter also requested an extension to "answer your requests."
On September 28, Gold filed a request to re-open the case. Her request explains, in
part, "At some point after filing my PERB complaint, I received a Notice
of
Appearance form
letter, which I did not really understand, thus causing all my paperwork to be sent to someone
else." She further states that she did not receive the Board agent's correspondence as
Wolfstein was out
of
the country.
On October 2, the Board's appeals assistant sent a letter to the parties informing them
of
Gold's request and giving the District ten days to file a response to Gold's request. The
District did not submit a response.
3The "requests for facts and clarification" referenced here likely refers to the warning
letter issued July 17.
2

DISCUSSION
The Board agent dismissed the charge because the charge did not state a prima facie case
and because Gold failed to file an amended charge correcting the deficiencies identified in the
warning letter. Gold's appeal requests that the Board re-open the record, presumably to allow
her to attempt to correct the deficiencies described by the Board agent.
Absent an extension, Gold's appeal
of
the dismissal should have been received by
August 27.4 Gold's appeal was filed after the deadline and is therefore a late filing. 5
PERB Regulation6 32136 provides that:
A late filing may be excused in the discretion
of
the Board for
good cause only. A late filing which has been excused
becomes a timely filing under these regulations.
The Board has found good cause in situations where the justification was "reasonable
and credible." The Board has deemed "honest mistakes," such as mailing or clerical errors, to
show good cause. (Lodi Unified School District (2005) PERB Order No. Ad-346 (Lodi
In this case, the Board agent did not send the warning and dismissal letters to Gold
because she submitted the Notice
of
Appearance form erroneously listing Wolfstein as her
representative. Rather, Wolfstein was to be a witness for Gold
if
the case progressed. 	Gold's
The deadline was August
21
plus five days for mailing. As August 26 fell on a
Sunday, Gold was allowed until the next business day or Monday, August 27.
5Although Wolfstein requested an extension on Gold's behalf before the time lapsed for
Gold's appeal to be filed, she did not properly file the request with the Board itself in the
headquarters office. As we find good cause for the late filing, we need not determine whether
Wolfstein appropriately requested an extension on Gold's behalf.
6PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
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explanation, supported by the correspondence
of
Wolfstein, that she did not understand the
Notice
of
Appearance form is an honest mistake.
By inadvertently identifying Wolfstein as her representative, Gold did not receive the
warning and dismissal letters. 	Gold's error in naming Wolfstein as her representative was
compounded by Wolfstein' s absence when the warning and dismissal letters were issued.
Although Wolfstein attempted to secure an extension
oftime
to allow Gold to appeal, she
directed the request to the wrong office. Therefore, we find that good cause exists to excuse
the late filing.
Lodi USD also held that
if
the justification for a late filing is found to be reasonable and
credible, then the Board should evaluate whether there is prejudice to the opposing party in
excusing the late filing. 	In	excusing the late filing. In this case, the District did not respond to or oppose Gold's request.	this case, the District did not respond to or oppose Gold's request.
Furthermore, allowing Gold to amend her charge would not prejudice the District because
if
a
complaint is subsequently issued the District would have the opportunity to respond. Therefore,
we do not find that the District would be prejudiced by allowing the late-filed appeal.
Educational Employment Relations Act (EERA)7 section 3541.3(i)empowers the Board
to take such action it deems necessary to effectuate the policies
of
EERA. In a similar case,
California Teachers Association (Underhill) (2001) PERB Decision No. 1466, the warning and
dismissal letters were directed to the wrong person. The Board remanded the charge to the
General Counsel for further investigation and to permit the charging party an opportunity to
review the warning letter and file an amended charge.
In her appeal, Gold indicates that she did not receive the warning and dismissal letters.
Thus, Gold did not have an opportunity to respond to the warning letter and file an amended
charge. We find that the policies of EERA are best served by giving her an opportunity to do so.
7EERA is codified at Government Code section 3540, et seq.
4

Therefore, the Board reverses the Board agent's dismissal and remands the case to the PERB
General Counsel for further investigation and to grant Gold the opportunity to file an amended
unfair practice charge.
ORDER
The Board REVERSES the Board agent's dismissal
of
the unfair practice charge
in
Case
No. LA-CE-5072-E and REMANDS the case to the PERB General Counsel for further
processing consistent with this decision.
Chair Neuwald and Member Shekjoined in this Decision.
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