Los Angeles Unified School District (PERB 1665E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ASSOCIATED ADMINISTRATORS OF
LOS ANGELES,

Charging Party, Case No. LA-CE-4248-E

V.

LOS ANGELES UNIFIED SCHOOL DISTRICT,
PERB Decision No. 1665

Respondent.

July 27, 2004
LOS ANGELES UNIFIED SCHOOL DISTRICT,

Employer, Case No. LA-UM-679-E

and

ASSOCIATED ADMINISTRATORS OF
LOS ANGELES,

Exclusive Representative.

Appearances: Parker & Covert by Spencer E. Covert and Barbara J. Ginsberg, Attorneys, for
Associated Administrators of Los Angeles; Paul, Hastings, Janofsky & Walker by Robert F.
Walker, Attorney, for Los Angeles Unified School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: These consolidated cases come before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the Los Angeles Unified School
District (District) to a proposed decision (attached) of the administrative law judge (ALJ). In

Case No. LA-CE-4248-E, the underlying charge was filed by the Associated Administrators of

Los Angeles (AALA) which alleged that the District unilaterally and improperly designated

25 employee classifications as managerial. AALA also filed a unit modification petition,
Case No. LA-UM-679-E, requesting that PERB determine whether the classifications at issue
were properly excluded from its unit. 	In the portion
of
the proposed decision related to the unit
modification petition, the ALJ found that
17
of
the 25 disputed classifications were properly
designated management within the meaning
of
the Educational Employment Relations Act
(EERA) 1 section 3540.l(g). The remaining eight classifications were not found to be
management, and thus, are properly part
of
AALA's unit.
As for Case No. LA-CE-4248-E, the ALJ found that
of
the eight classifications
improperly designated management, the District committed an unlawful unilateral change with
respect to one
of
the classifications. The ALJ also found that the District committed an
unlawful unilateral change with respect to one
of
the classifications found to be properly
designated management.
The Board has reviewed the entire record in these cases, including the proposed
decision, the District's exceptions and AALA's response.2 The Board finds the ALJ's findings
of
fact and conclusions
of
law to be free
of
prejudicial error and adopts the proposed decision
as the decision
of
the Board itself.
1EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2The District's request for oral argument is denied. The record and briefs in this matter
adequately present the issues and positions of the parties. Further, pursuant to PERB
Regulation 32295, et seq. (PERB regs. are codified at Cal. Code Regs., tit. 8, sec. 31001,
et seq.), the Board did not consider any documents submitted after the filings were complete.
2

ORDER IN CASE NO. LA-UM-679-E
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is hereby ordered that employees in the following disputed classifications are
management employees within the meaning of Educational Employment Relations Act
(EERA) section 3540.1 (g) and are therefore excluded from the certificated supervisors unit:
Assistant Superintendent, Extended Day Programs
Administrator, Student Auxiliary Services
Director, Elementary/Reading/Standards-Based Promotion Programs
Director, Language Acquisition
Director, Mental Health Services
Director, Integrated Health Partnerships
Director, Pupil Services
Director, Psychological Services
Director, Specially Funded Programs, Compliance and Technical Support
Director, SB 1X Programs
Administrator, Adult and Occupational Education Division
Administrative Coordinator, Legislation and Program Planning
Director, School Management Services
Administrator, Certificated Employment Operations
Administrative Coordinator, Special Education Employment Operations
Assistant Superintendent, Instructional Technology3
It is further ordered that employees in the following disputed classifications are not
management employees within the meaning ofEERA section 3540.l(g) and are therefore not
excluded from the certificated supervisors unit:
Director, Professional Development
Director, Administrative Academy
Director, High School Programs
Director, Middle School Programs
Administrative Coordinator, Child Development
Director, District Nursing Services
Director, Instructional Support Services, Local District
Director, School Services, Local District
3As previously noted, this conclusion applies to the current assistant superintendent
even when he was listed as a temporary adviser, MST, management.
3

ORDER IN CASE NO. LA-CE-4248-E
Based on the foregoing findings of fact and conclusions of law, and the entire record in
this case, it is found that the Los Angeles Unified School District (District) violated
Educational Employment Relations Act (EERA), Government Code section 3543.S(a), (b) and
(c ), by unilaterally designating employees in the following disputed classifications as
management employees excluded from the supervisors unit:
Director, Administrative Academy
Administrative Coordinator, Special Education Employment Opportunities
Pursuant to EERA section 3541.S(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally designating employees as management employees excluded
from the certificated supervisors unit.
2. 	Denying the Associated Administrators of Los Angeles (AALA) its right
to represent employees in the certificated supervisors unit.
3. 	Interfering with the right of employees in the certificated supervisors unit
to be represented by AALA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Within ten (10) workdays of the service of a final decision in this matter,
post copies of the Notice attached hereto as an Appendix at all work locations where notices to
unit employees are customarily posted. The Notice must be signed by an authorized agent of
the District, indicating the District will comply with the terms of this Order. Such posting shall
4

be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall
be
taken to ensure the Notice is not reduced in size, altered, defaced or covered with any
other
material.
2. 	Upon issuance
of
a final decision, make written notification
of
the
actions taken to comply with this Order to the San Francisco Regional Director
of
the Public
Employment Relations Board, in accord with the regional director's instruction.
All other unfair practice allegations are hereby dismissed.
Chairman Duncan and Member Whitehead joined in this Decision.
5

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-4248-E, Associated Administrators
of
Los Angeles
v.
Los Angeles Unified School District and Representation Case
No. LA-UM-679-E, Los Angeles Unified School District and Associated Administrators
of
Los Angeles, in which all parties had the right to participate, it has been found that the
Los Angeles Unified School District violated the Educational Employment Relations Act,
Government Code section 3543.S(a), (b) and (c),
by
unilaterally designating employees as
management employees excluded from the certificated supervisors unit.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Unilaterally designating employees as management employees excluded
from the certificated supervisors unit.
2. 	Denying the Associated Administrators
of
Los Angeles (AALA) its right
to represent employees in the certificated supervisors unit.
3. 	Interfering with the right
of
employees in the certificated supervisors unit
to be represented
by
AALA.
Dated: 	LOS ANGELES UNIFIED SCHOOL DISTRICT
By:
---------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATED ADMINISTRATORS OF
LOS ANGELES,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4248-E
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Employer,
and
ASSOCIATED ADMINISTRATORS OF
LOS ANGELES,
Exclusive Representative.
REPRESENTATION
CASE NO. LA-UM-679-E
PROPOSED DECISION
(2/6/03)
Appearances: Parker & Covert by Spencer E. Covert, Attorney, for Associated Administrators
of Los Angeles; Paul, Hastings, Janofsky & Walker by Robert F. Walker, Attorney, for
Los Angeles Unified School District.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In these consolidated cases, a certificated supervisors union alleges that a school district
improperly designated some 25 positions as management. The district asserts the positions
were properly designated as management.
The Associated Administrators of Los Angeles (AALA) filed an unfair practice charge
against the Los Angeles Unified School District (LAUSD) on December 6, 2000. The original

charge alleged that LAUSD had unilaterally and unlawfully removed approximately 32
employees in 26 classifications from the AALA bargaining unit by designating them as
management. 	On February 23, 2001, the Office of the General Counsel of the Public
Employment Relations Board (PERB) issued a complaint against LAUSD, alleging that 27
classifications had been unlawfully removed from the AALA unit. The District filed an
answer on March 14, 2001, denying the allegations.
PERB set an informal settlement conference for April 4, 2001, and on that date the
charge was placed in abeyance by agreement of the parties. On May 3, 2001, however, AALA
requested that the abeyance be lifted and that the charge be moved forward. 	PERB therefore
scheduled a formal hearing to begin on July 30, 2001. The hearing was later rescheduled to
begin on July 31, 2001.
On May 25, 2001, AALA filed an amended charge and a motion to amend the
complaint to allege that 33 listed classifications had been unlawfully removed from the unit. 1
On July 25, 2001, AALA filed a unit modification petition, asking PERB to determine that the
same 33 classifications were improperly excluded from the AALA unit.2 When the unfair
practice hearing began as scheduled on July 31, 2001, AALA moved for consolidation of the
amended unfair practice charge with the unit modification petition. The motion was granted.
The hearing was then continued and was ultimately completed on November 13, 14, 15,
16, 19, 20 and 21, 2001, and January 10, 11 and 14 and April 8, 9, 10, 11 and 12, 2002. With
the receipt of the final post-hearing briefs on July 8, 2002, the case was submitted for decision.
1 The list had 34 items, but one was a duplicate.
2 From AALA's point of view, the petition was for clarification of the unit rather than
for modification of the unit.
2

During the course of the litigation, the number of classifications in dispute has
fluctuated. 	In its post-hearing brief, AALA ultimately listed 25 disputed classifications. This
proposed decision shall deal with those 25 classifications.
FINDINGS OFF ACT
LAUSD is a public school employer under the Educational Employment Relations Act
(EERA). 3 AALA is an employee organization under EERA and is the exclusive representative
of a unit of LAUSD 's certificated supervisors. In this case, PERB must decide who is and who
is not a "management employee"' ofLAUSD, as that term is defined by EERA, among the
employees in the disputed classifications. PERB's decision will affect the rights of the
employees, of AALA, and of LAUSD itself.
LAUSD is a huge school district with a huge bureaucracy. 4 It has more administrators
than most school districts have teachers, and more than some school districts have students. It
is one of the few California school districts to have an established unit and a recognized
exclusive representative just for its certificated supervisors.
On April 15, 1991, LAUSD voluntarily recognized AALA as the exclusive
representative of a certificated supervisory unit. The recognition agreement stated in part:
The Unit: The Certificated Supervisory Unit shall be as follows:
a. 	Inclusions: All certificated employees on the Master Salary
Schedule, including all school-based administrators and non-
school-based administrators except for those positions
excluded below.
3 EERA is codified at Government Code section 3540 and following.
4 I do not use the word "bureaucracy" in a pejorative sense. The evidence in this case
includes 134 pages of selected LAUSD organizational charts, and I think this evidence justifies
the use of the word "bureaucracy" in a descriptive sense. From the witnesses who testified at
hearing, it appears that there are many very capable and conscientious employees serving
LAUSD bureaucracy.
3

b. 	Exclusions:
(4) 	All managerial personnel on the Master Salary
Schedule, including those serving in the following
positions as
of
the date
of
this Agreement:
All Contract Level Administrators
The recognition agreement then went on to list
25
specific classifications excluded from the
unit as managerial, plus
13
other specific classifications excluded from the unit as confidential.
Through the succeeding years, LAUSD has regularly provided AALA with copies
of
its
Certificated Management & Confidential Classification Plan (Classification Plan), which
specifically lists the classifications and employees that LAUSD deems excluded from the
unit as management or confidential. LAUSD sent AALA one such Classification Plan on
March 13, 2000, listing 47 classifications and 89 employees as management, plus
14 classifications and 34 employees
as
confidential. 5 On April 24, 2000, however, LAUSD
agreed to place eight
of
the employees designated as management back in the AALA unit,
leaving just
81
employees designated as management.
On September 19, 2000, LAUSD sent AALA another Classification Plan, listing 104
employees as management, plus 37 others as confidential. The increase in the number
of
employees designated as management was primarily attributable to two classifications that had
not appeared on the March
13
Classification Plan: Director, Instructional Support Services,
(DISS) and Director, School Services, Local District (DSS). The appearance of
these two classifications on the September 19 Classification Plan was in turn attributable to a
reorganization of LAUSD that had been effective on July 1, 2000.
5 I shall refer to this and two later Classification Plans by the dates on which they were
sent to AALA, even though they were prepared on earlier dates.
4

AALA informed LAUSD that it did not accept the designation of several classifications
and employees as management, including the DISSs and DSSs. AALA and LAUSD met to
discuss the matter, but in a letter dated November 7, 2000, LAUSD informed AALA that it
"does not intend to make any adjustments" to the Classification Plan. In fact, another
Classification Plan sent to AALA on November 29, 2000, increased the number of employees
listed as management to 111, with 38 others listed as confidential.
Between April 24, 2000, and November 29, 2000, the number of employees designated
as management by LAUSD thus increased by some 37 percent, from 81 to 111. It was in the
light of this development that AALA filed its unfair practice charge on December 6, 2000, and
its unit modification petition on July 25, 2001.
To understand this case, one must have some knowledge of LAUSD's organization. At
the very top, of course, is the elected Board of Education (Board). As LAUSD emphasizes in
its post-hearing brief, "nobody but the [Board] sets policy." LAUSD policy is then often
disseminated in one of two forms: 	yellow policy bulletins and pink policy memos. Yellow
policy bulletins remain in effect from year to year until changed, while pink policy memos are
redone every year.
Directly below the LAUSD Board, at the first administrative level, is the LAUSD
superintendent (currently a former governor of Colorado). Directly below the superintendent,
at the second administrative level, are a number of employees with various titles. Those in
LAUSD's central administration who are relevant to this case are two deputy superintendents,
the assistant superintendent for the division of adult and career education, the Chief Operating
Officer (COO), and the Chief Information Officer (CIO).
5

The disputes concerning central administrators begin at the third administrative level,
with two employees titled assistant superintendent. The disputes continue with several fourth
level central administrators, variously titled director, administrator, and administrative
coordinator.
Not all
of
LAUSD's
administration is centralized, and the disputed classifications
in
this case are not limited to its central administration. Indeed, among the most hotly disputed
classifications are the previously mentioned DISS and DSS classifications, which are outside
the central administration.
Prior to
LAUSD's
reorganization on July
1,
2000, its schools were organized into 27
clusters, each with a Cluster Administrator. Since the reorganization, the schools have
been
organized into
11
Local Districts (LDs). These LDs are still very large.
	If
they were school
districts in themselves, they would be among the largest in California. Each LD has its own
LD superintendent, who reports directly to the LAUSD superintendent. There is no dispute in
this case that the LD superintendents are management employees. Directly below the LD
superintendents are the disputed DISSs and DSSs.
The LAUSD superintendent, who assumed his position at the same time the
reorganization was implemented, testified he understood the reorganization as "decentralizing
responsibility for management." It was not, however, a decentralization in the usual sense, in
which centralized authority is broken up and redistributed. As LAUSD states in its post-
hearing brief:
No one can dispute that the [centralized] contract-level
administrator group has not changed appreciably, nor that the
[centralized] District-wide program administrator group has not
changed appreciably. Hence, the only real change in 2000 was an
expansion
of
the group directly responsible for managing the
schools.
6

LAUSD thus recognizes that the reorganization was more an expansion of management than an
actual decentralization of management.
Because the correct designation of the employees in each disputed classification as
management or not is closely tied to specific facts about each classification, this proposed
decision shall have a separate section of specific findings and conclusions as to each
classification.
ISSUES
1. 	As to each disputed classification, was LAUSD's designation of the
classification as management correct or incorrect?
2. 	As to each disputed classification, was the unfair practice charge timely?
3. 	If the charge was timely, was the designation of the classification as
management an unlawful unilateral change?
CONCLUSIONS OF LAW
Management or supervisory status
The major issue in this case is whether each of the disputed classifications is
management or supervisory. EERA section 3540.1 states in part:
(g) "Management employee" means any employee in a position
having significant responsibilities for formulating district policies
or administering district programs. Management positions shall
be designated by the public school employer subject to review by
the Public Employment Relations Board.
(m) "Supervisory employee" means any employee, regardless of
job description, having authority in the interest of the employer to
hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or the responsibility to
assign work to and direct them, or to adjust their grievances, or
effectively recommend such action, if, in connection with the
foregoing functions, the exercise of that authority is not of a
7

merely routine or clerical nature, but requires the use of
independent judgment.
Supervisory employees have rights under EERA. In this case, certificated supervisors have the
right to be represented by AALA.
Management employees, in contrast, have no rights under EERA. PERB has therefore
stated that "great care must be exercised in determining who shall be considered a management
employee." (Oakland Unified School District (1977) EERB Decision No. 15 (Oakland I).)6
The burden of proof rests on the party designating an employee as management. (San
Francisco Unified School District (1977) EERB Decision No. 23 (San Francisco).)
PERB's test for management employee status under EERA is well established. In
Oakland Unified School District (1981) PERB Decision No. 182 (Oakland II), PERB stated:
Government Code section 3 540.1 (g) defines "management
employee" as "any employee in a position having significant
responsibilities for formulating district policies or administering
district programs." The Board has previously held that a
management employee must possess significant responsibilities
both for the formulation of district policies and the administration
of district programs. Lompoc Unified School District (3/17 /77)
EERB Decision No. 13, at 20-21. The "formulating of district
policies" entails the discretionary authority to develop or modify
institutional goals and priorities. The "administering of
programs" involves the authority to implement district policies
through the exercise of independent judgment. Hartnell
Community College District (1/2/79) PERB Decision No. 81,
at 13.
a footnote, PERB stated in part:
The two-prong test was deemed necessary to reconcile the fact
that supervisorial employees also have significant responsibility
for administering school policy yet are expressly authorized to
organize representation units and engage in good-faith
6 Before July 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB).
8

negotiations, a right denied managerial employees. 	[Emphasis in
the original.]
Thus the key distinction between management and supervisory employees is that management
employees have significant responsibilities for the formulation of district policies, including
discretionary authority to develop or modify institutional goals and priorities, while
supervisory employees do not.
PERB has applied this test in a number of cases. In Oakland II, PERB found an
"affirmative action purchasing manager" possessed authority to implement a program through
the exercise of independent judgment. PERB then stated:
However, there is insufficient evidence to establish that
the incumbent possesses discretionary authority to develop or
formulate District policy. On the contrary, the evidence strongly
indicates that the District's affirmative action purchasing policy
is set out in an administrative bulletin prepared by the District's
board of education that the affirmative action purchasing manager
has no authority to modify. Similarly, while the incumbent
testified that he "manage[ s] and implement[ s] a District-wide
policy," he stated that he has "never been called upon to develop
one." Although the record indicates that the affirmative action
purchasing manager was responsible for the drafting of a
minority and female subcontracting clause to be included in
District purchasing contracts, he testified that the language would
have to be approved by four levels of supervisors. When asked
whether he had the discretion to deviate from established policy
on an individual basis, he responded that he "couldn't see a
situation like that right now." Hence, there is no indication that
the incumbent has the "discretion in the performance of [his] job
beyond that which must conform to [the] employer's established
policy." [Citation.]
PERB therefore concluded the employee was not a management employee.
In Berkeley Unified School District (1979) PERB Decision No. 101 (Berkeley), PERB
examined the responsibilities of a "Title IX coordinator." PERB summarized the evidence as
9

... The Title IX coordinator, as noted above, has authority to use
independent judgment in identifying sexually discriminatory
practices and policies within the District. This authority to
identify discriminatory practices is districtwide, and not limited
to routine matters. There is also evidence that once a
discriminatory practice has been identified the Title IX
coordinator has authority to direct a change in that practice ....
The Title IX coordinator also participated at times in meetings of the superintendent's
administrative cabinet and served as a resource person for the board of education. PERB
concluded the employee was a management employee.
PERB reached a similar conclusion with regard to an "affirmative action officer" in
Ventura County Community College District (1980) PERB Decision No. 139 (Ventura). 	The
employee who was held to be a management employee in that case had authority to advise,
direct and authorize changes in the district's affirmative action plan, and to waive or forego
portions of the plan.
It thus appears from Oakland II and Ventura that ability or inability to waive or deviate
from established policy may be significant in distinguishing a management employee from a
non-management employee.
In Hartnell Community College District (1979) PERB Decision No. 81 (Hartnell),
PERB examined the responsibilities of "department chairpersons." PERB stated in part:
In the instant case, the evidence established that the
authority of the chairpersons was either collegial in nature and no
greater or lesser than that of other persons serving on various
committees, or substantially determined by established District
policy.
PERB concluded the employees were not management employees.
10

In Marin Community College District (1978) PERB Decision No. 64 (Marin), PERB
had examined the somewhat similar responsibilities of "college coordinators." PERB stated in
part:
But they have no final authority to approve their own proposals
(or those of the committees on which they sit) - most of the
proposals which they have drafted are subject to a multi-level
review process, and they have no discretion to deviate from the
District policies which they are responsible to administer.
PERB concluded the employees were not management employees.
In San Francisco, PERB examined the responsibilities of principals and assistant
principals. PERB stated in part:
The principals at the secondary and elementary school
levels in the [district] have no significant responsibilities for
formulating district policy. The principals merely make policy
recommendations with respect to the transfer and assignment of
personnel, staffing of schools and student-teacher ratios.
Although principals often serve on various committees which
play a role in formulating district policy, the committees include
teachers and, moreover, are purely advisory. Finally, the
principals did not have any significant input in formulating the
school district policies as found in the "Board of Education
Policy Manual". 	[Emphasis in the original; citation omitted.]
PERB concluded the principals were not management employees and "a fortiori" the assistant
principals were also not management employees.
It thus appears from Hartnell, Marin and San Francisco that committee service will not
itself to justify designating an employee as management.
In Los Rios Community College District (1977) EERB Decision No. 18 (Los Rios),
PERB examined the responsibilities of "financial aids coordinators." PERB stated in part:
While the record establishes that financial aids
coordinators participate in discussions where policy alternatives
are apparently aired, we do not view such participation as
equivalent to possessing "significant responsibilities for
11

formulating" that policy. Mere participation, even on a regular
basis, does not vest the participant with significant responsibility.
PERB concluded the employees were not management employees.
In Oakland I, PERB examined the responsibilities of psychologists. PERB stated in
part:
They exercise discretion only within their areas of expertise,
which is not the same as a manager's authority to formulate
district policy. While they have considerable discretion in
implementing the district's testing program, this is no more
administering policy than teachers administer policy because they
have considerable discretion in implementing a teaching program.
The psychologists' authority is exercised on a localized basis, not
on a district-wide basis. And finally, psychologists are part of a
large group [of approximately 40 to 48] having no intimate
relationship with high level district officials. [Footnote omitted.]
PERB concluded the employees were not management employees.
It thus appears from Berkeley and Oakland I that the presence or absence of a relatively
intimate relationship with a school district's superintendent or governing board may be
significant in distinguishing a management employee from a non-management employee.
In Lompoc Unified School District (1977) EERB Decision No. 13 (Lompoc), PERB
examined the responsibilities of "subject coordinators." PERB stated in part:
These employees cannot be said to formulate district policies
since their recommendations usually have to be approved on at
least two higher levels, usually by the Director of Curriculum and
the Superintendent.
PERB concluded the employees acted "basically as experts in their particular field" and not as
management employees.
12

Later in this decision, each disputed classification in the present case shall be examined
in the light of this long line of PERB cases interpreting EERA.7
Timeliness of unfair practice charge
EERA section 3541.S(a)(l) 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.)
In the present case, AALA filed its unfair practice charge on December 6, 2000. 	The
charge is therefore timely only with respect to those classifications as to which AALA first had
notice on or after June 6, 2000, of their designation as management.
Unilateral change
In Regents of the University of California (1989) PERB Decision No. 722-H (Regents),
PERB found an unlawful unilateral change where an employer had designated certain positions
as excluded from the exclusive representative's bargaining unit without exhausting PERB's
unit modification procedures. Although the positions in dispute in Regents were designated as
supervisory, there is no apparent reason why the same reasoning should not also apply to
present case, where the positions in dispute were designated as management.
7 Because other statutes under PERB's jurisdiction define management status somewhat
this examination shall rely only on cases interpreting EERA.
13

In order to understand the PERB's decision in Regents, one must also read the proposed
decision that PERB affirmed. That proposed decision defined the issues in part as follows:
At the outset it is important to note what this case is not
about. First, [the exclusive representative] does not contend that
the [employer] could not have lawfully created new supervisory
job titles outside the bargaining unit and recruited interested
candidates for such newly created vacancies, provided the
integrity
of
the bargaining unit was not threatened.
Thus, in the present case, it appears that LAUSD could have lawfully created and designated
new and vacant management positions, for which candidates were recruited, without
exhausting PERB's unit modification procedures in advance. 8
The proposed decision in Regents continued in part:
Second, in its present procedural posture, this case does not
involve the question
of
whether the employees in question were
in fact statutory supervisors
....
For the purpose
of
the present
proceeding, however, it is assumed that at least some
of
the
employees perform supervisory duties under the Act.
An unlawful unilateral change was found despite this assumption that at least some
of
the
employees could correctly be designated (and excluded) as supervisory. Thus, in the present
case, it appears that LAUSD could be guilty
of
an unlawful unilateral change for failure to
exhaust PERB's unit modification procedures, even
if
LAUSD's unilateral designation
of
a
disputed position as a management position excluded from the bargaining unit was
substantively correct.
with any alleged unilateral change, the burden
of
proof is on the charging party (in
this case, AALA).
8 This would give meaning to the employer's right under EERA section 3540.1 (g) to
designate management positions, subject to PERB review.
14

SPECIFIC FINDINGS AND CONCLUSIONS
In this section, each disputed classification shall be examined in order to answer three
questions:
1. 	Is the classification management?
2. 	Was the unfair practice charge timely?
3. 	Was there an unlawful unilateral change?
This section shall begin with the disputed positions in LAUSD's central administration,
moving from the top down through various lines of authority.
Assistant Superintendent, Extended Day Programs
As previously noted, among the second level central administrators directly below the
LAUSD superintendent are two deputy superintendents. There is no dispute in the present case
that the deputy superintendents are management employees. Directly below them, at the third
level of central administration, are several assistant superintendents and one associate
superintendent. There is a dispute as to one of those assistant superintendent positions.
The disputed position is the assistant superintendent for extended day programs, a
position held by Jon Liechty (Liechty). On the Classification Plan of March 13, 2000, Liechty
was listed as the assistant superintendent for instructional services, which he then was. 	On the
September 19 Classification Plan, he was incorrectly listed as an "administrator" for extended
day programs, but on the November 29 Classification Plan he was correctly listed as the
assistant superintendent for extended day programs.
Liechty's class description, which he testified is accurate, describes his job purpose as
follows:
Provides leadership, guidance and direction in establishing out-
of-school programs in all schools, K-12. 	Serves as the District's
15

spokesperson for out-of-school programs and represents the
District in working with community based organizations and city
agencies.
The class description describes his first essential function as follows:
Directs the development, implementation and monitoring
of
District-wide policies and procedures for out-of-school programs
within the Beyond the Bell Branch.
This first essential function is thus specifically described as including the "development
of
District-wide policies," although the job purpose is not.9
Liechty testified he was offered the position in August 2000 by the LAUSD
superintendent and his chief
of
staff. According to Liechty, they asked
if
he would be
"interested in taking on and creating a new branch," and he replied that
"if
there's support here
in the office" he would "give it a shot." Liechty was then promoted to the new position,
without having to apply for it.
In October 2000 the LAUSD Board passed a resolution charging Liechty with the
responsibility
of
bringing forward a plan to provide quality out-of-school programs for every
elementary and middle school over the next five years. 	On July 19, 2001, Liechty presented
such a plan to the Board. He had been involved in every step
of
creating the plan. He was the
only one to sign it, and he led the discussion
of
it with the Board.
Liechty reports to a deputy superintendent, but the LAUSD superintendent also
evaluates him.
	If
budget cuts are necessary, Liechty believes he has authority to make a
9 As shall be seen, some LAUSD class descriptions specifically refer to policy
development or formulation, while others do not. Testimony shows that the presence or
absence of such a specific reference is often (but not always) an accurate indication of the
position's policy responsibilities or lack thereof. A class description is therefore entitled to
some weight, and is at least a useful place to start examining a position's responsibilities.
16

decision where to cut. He also feels that in such a situation he may need "to really get to the
superintendent, which is part of my role, the impact of this cut." Liechty is a contract level
administrator, working under a year-to-year contract.
I conclude that Liechty is a management employee. Consistent with his class
description, he has specifically been called upon to develop district-wide policy. ·while he
reports to a deputy superintendent, he also appears to have a relatively intimate relationship
with the highest level of LAUSD officials: the Board and the superintendent. (Berkeley;
Oakland I.)
I also conclude that AALA's unfair practice charge is untimely as to Liechty, a contract
level administrator. AALA has known since the 1991 recognition agreement that LAUSD
deems all contract level administrators to be management.
Administrator, Student Auxiliary Services
One of the positions directly below Liechty, at the fourth level of central
administration, is the administrator for student auxiliary services, a position held by Carole
Takaki (Takaki). On the Classification Plan of March 13, 2000, as well as later Classification
Plans, Takaki and her position have been listed as management. Takaki has held the position
since February 1999, but she has only been under Liechty's supervision since August 2000.
Takaki's class description describes her job purpose as follows:
Serves as administrative head of the Student Auxiliary Services
Branch; coordinates, develops, and implements District policies,
standards, and procedures relating to youth services, emergency
services, traffic and safety education, outdoor education and
specially funded programs under the jurisdiction of the Branch.
Takaki testified this description is accurate, except for the reference to "emergency services."
The class description describes her first two essential functions as follows:
17

l, Provides administrative direction for and supervision of the
organizational units of the Student Auxiliary Services Branch
as they relate to the total educational program.
2. Directs the formulation of the philosophy, principles,
objectives and procedures of Student Auxiliary Branch
programs; communicates and interprets such matters to the
Board of Education, other organizational units of the District,
the general public and outside agencies.
Takaki testified this description is also accurate. The job purpose is thus specifically described
as including policy development, while the second essential function is specifically described
as including "the formulation of . . . philosophy, principles [and] objectives." Takaki
testified that she had taken the lead in drafting a report to the Board about a contract with the
County of Los Angeles and had then appeared before the Board to answer questions. 	She had
updated a policy bulletin with regard to "late children" and had drafted three policy memos.
Her drafts had been reviewed by her supervisor. The drafts had also been sent to the LAUSD
superintendent's chief of staff and the LD superintendents, but Takaki was unaware of any
significant review at those levels.
I conclude that Takaki is a management employee. Consistent with her class
description, she has had significant responsibility for formulating district-wide policies.
Although she does not appear to have Liechty's direct relationship with the LAUSD
superintendent, she has had some direct relationship with the Board, and her work does not
appear to be subject to multi-level review. (Cf. Marin.)
I 	conclude that AALA's unfair practice charge is untimely as to Takaki, who was
listed as a management employee before June 6, 2000.
Director, Elementary/Reading/Standards-Based Promotion Programs
At the same third level of central administration as Liechty, directly below the deputy
superintendents, is the assistant superintendent for professional development, elementary
18

education and language acquisition, a position held by Sue Shannon (Shannon). There is no
dispute in the present case that Shannon is a management employee. There are disputes,
however, about four administrators directly below her (at the fourth level of central
administration).
One of the disputed positions is the director for elementary/reading/standards-based
promotion programs, a position recently held by Ronni Ephraim (Ephraim). 	On the
Classification Plan of March 13, 2000, Ephraim's predecessor Jan Pickett (Pickett) was listed
as management. Pickett's position was listed as temporary advisor, MST, management, but
her actual job title was apparently director, professional development, elementary and reading
programs. When Ephraim applied for the position in May 2000, the flyer noted the title change
and described the position as follows:
Assists in the administration and direction of the District's
Elementary, Reading, and Standards-based Promotion Programs
to ensure that students achieve high academic standards through
collaborative efforts with District personnel, parents and students.
Ephraim was hired after an interview with the acting LAUSD superintendent.
On the March 13 Classification Plan, Ephraim had been listed as a management
employee in her previous position, although she believed she was actually a confidential
employee. On the September 19 and November 29 Classification Plans, she was listed as a
management employee in her new position.
Ephraim's class description, which she testified is accurate, describes her job purpose
as follows:
Directs the formulation, implementation, monitoring and
evaluation of policies and procedures for the District's
Elementary, K-12 Literacy and Standards-Based Promotion
Programs to ensure that students achieve high academic standards
19

through collaborative efforts with District personnel, parents and
students.
This description thus specifically includes policy formulation. 	The class description describes
her essential functions as follows, however:
1. 	Directs the support structure necessary to effectively
implement elementary programs and the District's Literacy
Plan in all elementary schools.
2. 	Facilitates collaboration with other District central office
personnel and works with the community in activities related
to reading instruction and elementary programs.
3. 	Directs standard-based curricular programs in language arts
by providing direction and guidance to all District K-12
schools.
4. 	Directs the District's professional development efforts by
developing a coordinated, focused, integrated professional
development plan that addresses the diverse training needs of
educators, resulting in improved achievement for all students.
5. 	Directs the development of K-12 language arts curricula and
training to support the local district in the successful
implementation of elementary programs for students with
disabilities at the elementary level.
6. 	Evaluates the performance of subordinate personnel.
Thus, while Ephraim's job purpose is specifically described as including policy formulation,
her essential functions are not.
Ephraim testified that, while she was putting together the budget she administers, she
met several times with the LAUSD superintendent, who asked her to develop a budget that
would "make the program work." She appeared before a Board committee in connection with
the budget, although the committee members had no budget questions for her. 	She also wrote
a grant proposal on behalf of the superintendent.
In implementing the Board's elementary reading policy, Ephraim was responsible
creating the professional development course and coordinating its rollout. 	She also developed
a tracking system to make sure that the professional development occurred.
20

Similarly, in implementing the Board's standards-based promotion policy, Ephraim was
responsible for creating the training program, shared responsibility for its rollout, and was
responsible for ensuring that the training took place. She worked closely with Shannon on a
policy recommendation to the Board concerning eighth grade standards-based promotion,
although Shannon ultimately prepared the Board "informative" and presented the
recommendation to a Board committee.
Ephraim personally recommended that a fluency test be added to the second-grade
assessment regimen. 	She will be present when the matter goes before the full Board. If
adopted, the recommendation will become part of a yellow policy bulletin.
Although her class description is somewhat ambiguous, I conclude that Ephraim has
been a management employee. She has worked closely with the LAUSD superintendent on a
budget and a grant and has had some direct contact with Board members. Moreover, she has
had significant responsibility in recommending district-wide policies.
I also conclude that AALA's unfair practice charge is untimely as to Ephraim, whose
predecessor was listed as a management employee before June 6, 2000.
Director, Professional Development
Another disputed position directly below Shannon is the director for professional
development, a position held by Kathy Rattay (Rattay). Shannon was Rattay's immediate
predecessor, and on the Classification Plan of March 13, 2000, Shannon was listed as a
management employee (specifically, as a temporary adviser, MST, management).
Rattay had been a high school principal for seven years when she applied for the
position. The flyer described the position as follows:
Provides overall direction for the planning, development,
implementation, coordination, evaluation and improvement of the
21

District's professional development programs, in accordance with
federal and state laws.
Rattay was hired for the position after an interview with Shannon.
Rattay actually began working in the position in September 2000. She was not listed on
the September 19 Classification Plan, but she was listed as a management employee on the
November 29 Classification Plan.
Rattay's class description describes her job purpose in part as follows:
Directs the planning, development, implementation, coordination,
evaluation and improvement of professional development
programs ....
Rattay testified this description is accurate. The job purpose is not specifically described as
including policy development or formulation.
Rattay's class description also describes 15 essential functions, a few of which Rattay
no longer performs. She testified she actually spent 80 percent of her time on the first
function:
Directs the planning, development, implementation, coordination,
evaluation and improvement of the District's professional
development program, pre-K through adult; develops and
interprets District policy as it relates to professional development
programs.
This function is thus specifically described as including policy development.
Rattay testified, however, she had not actually made any presentations to the Board or
prepared any Board agenda items in connection with her essential functions. 	She had prepared
documentation that Shannon had placed before the Board, but this had not occurred very often.
There is no evidence that she had direct contact with the LAUSD superintendent (or even the
deputy superintendents) or that she was involved in preparing any yellow policy bulletins or
pink policy memos.
22

Rattay testified she had some reservations about how LAUSD's peer assistance and
review program adhered to the law, and she had therefore made some recommendations to
Shannon and to LAUSD's office of staff relations. 	These recommendations would have to be
negotiated, however, and there is no evidence Rattay would participate in any negotiations.
I conclude that LAUSD has not met its burden of proving that Rattay is a management
employee. Although she has a wide range of administrative responsibilities, she does not
appear to have significant responsibility for actually formulating district-wide policies. 	She
does not appear to have a close relationship with the highest levels of LAUSD officials, and
she apparently lacks the authority to direct policy changes, even when she believes they may
required 	law, (Cf. Berkeley.)
I also conclude that AALA's unfair practice charge is untimely as to Rattay, whose
predecessor was listed as a management employee before June 6, 2000.
Director, Administrative Academy
Another disputed position directly below Shannon is the director of the administrative
academy, a position held by Jean Brown (Brown). 	On the Classification Plan of March 13,
2000, Brown was not listed as a management employee, but she was so listed on the
September 19 and November 29 Classification Plans.
When Brown first took the position in September 1998, she had the director title and
to a deputy superintendent. 	July to October 2000, she was titled a coordinator,
and during that same period she reported to Rattay. After October 2000 she was again titled a
director, and she reported to Shannon. She testified, however, that neither her salary nor her
responsibilities changed.
Brown's class description describes her job purpose as follows:
23

Directs the formulation, implementation, monitoring and
evaluation of policies and procedures for the professional
development programs for District administrators within the
framework of the Administrative Academy.
Brown testified, however, that this description is inaccurate, in that she really directs the
formulation, implementation, monitoring and evaluation of the programs themselves, as
distinct from policies and procedures for those programs. The class description describes her
first essential function as follows:
Directs the planning, development, implementation, coordination,
evaluation and improvement of the District's professional
development program for administrators; develops and interprets
District policy as it relates to these programs.
Brown testified this description is also inaccurate, in that she does not develop LAUSD policy.
When Brown first took the position, her charge was to create a professional
development program for new administrators. Based on a needs assessment, she and her staff
decided to create two separate programs, with one just for new principals. Based on a
suggestion from an administrator working with her, she decided to develop the new
administrator program in a way that allowed participants to receive some college credit. She
and her staff are now hoping to create a new program for aspiring administrators.
Brown has twice attended meetings of a new Board committee on human resources, but
only as an audience member. It is not clear to her what her connection to the committee will
be, although she speculates she will eventually be asked to do a presentation to the committee
on 	aspiring administrator program. There is no evidence she has had direct contact with
the LAUSD superintendent.
I conclude that LAUSD has not met its burden of proving that Brown is a management
employee. Although she has major programmatic responsibilities, she does not appear to have
24

significant responsibility for actually formulating LAUSD policies, and her relationship with
the highest level of LAUSD officials is speculative.
I also conclude that AALA's unfair practice charge is timely as to Brown, who was
listed as a management employee for the first time on the Classification Plan of September 19,
2000. I further conclude that LAUSD's designation of Brown as a management employee was
an unlawful unilateral change, because LAUSD simply changed her title and her reporting
relationship, without creating a new and vacant position for which candidates were recruited.
(Regents.)
Director, Language Acquisition
The fourth and final disputed position directly below Shannon is the director for
language acquisition, a position held by Rita Caldera (Caldera). On the Classification Plans of
March 13 and September 19, 2000, neither Caldera nor her position was listed, but she was
listed as a management employee on the November 29 Classification Plan. There is no
evidence that her position existed before the beginning of the 2000-2001 school year, when she
obtained it through an application and selection process after seeing a flyer.
Caldera's class description, which she testified is accurate, describes her job purpose as
follows:
Administers and coordinates the implementation of the District's
Master Plan for English Language Learners to ensure that
students have equal access to the core curriculum and achieve
high academic standards.
Caldera testified that LAUSD's Master Plan for English Language Learners already existed
when she took the position. The class description describes Caldera's first essential function
as follows:
25

Directs the development and implementation of elementary and
secondary curricula and provides tactical support to the local
districts for the successful implementation of instructional
programs for English Language Learners (ELLs).
Although this essential function is specifically described as including curriculum development,
neither it nor any other essential function, nor the job purpose, is specifically described as
including policy development.
Caldera testified, however, that she has been responsible for proposing a major change
of policy concerning structured English immersion. She was responsible for preparing a report
on the recommendation, which went to a Board committee with her signature as well as
Shannon's. If the Board adopts the recommendation, it will result in a change in LAUSD's
for English Language Learners and the issuance of either a yellow policy bulletin
or a pink policy memo.
Caldera testified that she was responsible for creating many pink policy memos, with
the approval of Shannon and Price. 	She was also responsible for preparing reports to the
Board concerning grants. 	She would make the formal presentation to the Board committee and
later would be present for the Board's vote, so she could answer any questions from Board
members.
I conclude that Caldera is a management employee. Her actual responsibilities have
gone beyond curriculum development to policy formulation, and she has had significant direct
contact with Board members.
I also conclude that AALA's unfair practice charge is timely as to Caldera, who was
first listed as a management employee on the Classification Plan of November 29, 2000. I
further conclude, however, that AALA has not proved that LAUSD's designation of Caldera
26

was an unlawful unilateral charge, because it appears that LAUSD created a new and vacant
position for which Caldera applied and was selected. (Regents.)
Director, High School Programs
At the same third level of central administration as Liechty and Shannon, directly
the deputy superintendents, is the assistant superintendent for secondary education and
support services, a position recently held by Sylvia Rousseau (Rousseau). There is no dispute
in the present case that Rousseau has been a management employee. There are disputes,
however, about two administrators directly below her.
One of the disputed positions is the director for high school programs, a position
recently held by Carol Ogawa (Ogawa) and currently held by Bud Jacobs (Jacobs). On the
Classification Plans of March 13 and September 19, 2000, neither Ogawil, nor her position was
listed, but she was listed as a management employee on the November 29 Classification Plan.
It appears that the position was new when Ogawa took it at the beginning of the 2000-
2001 school year. In April 2000 there had been a flyer describing the position as follows:
Provides instructional direction to senior high schools in the
development of a standards-based instructional program that
meets the unique needs of the high school student. Provides
leadership establishing an articulation program with middle and
high schools to ensure coherent, coordinated instructional
programs, including summer school programs.
There was another flyer in November 2000, describing the position as providing support,
leadership and coordination for various programs. Neither flyer specifically described policy
formulation as part of the job.
Jacobs's class description, which he testified is accurate, describes his job purpose as
follows:
27

Provides instructional assistance in the development of a
standards-based instructional program that meets the unique
needs of the high school student. Provides leadership in
establishing an articulation program with middle and high schools
to ensure coherent, coordinated instructional programs.
This description does not specifically include policy development or formulation. 	Jacobs
affirmed, consistent with the described job purpose, "Instructional assistance is the core of
,,
I
The class description describes Jacobs's essential functions as follows:
1. 	Assist[ s] local districts in coordinating curriculum, instruction
and assessment between middle schools and high schools.
2. 	Provides instructional direction to implementation of the
matriculation guidelines effective with the class of 2003 and
as related to Standards Based Promotion guidelines.
3. 	Provides support to local districts to review and implement
instructional models used to meet the needs of students in
extended learning opportunities and intervention programs.
4. 	Reviews curriculum and instructional programs at the high
school level to ensure alignment with current research and
practice as well as state and District guidelines.
5. 	Improves articulation between middle school[ s] and high
schools.
6. 	Develops strategies to increase student access to a challenging
curriculum, and the graduation rate from high school.
7. 	Evaluates the performance of subordinate personnel.
None of these essential functions is specifically described as including policy development or
formulation.
Jacobs testified that he did develop "guidelines." He had participated in a language arts
committee that also included teachers and specialists. By his own account, the vu"«HJl!HUA.
decisions were made "in a collaborative manner, by consensus," and he was not the "super
editor." There was no evidence as to whether the guidelines thus produced were included in a
formal policy bulletin or memo.
28

Jacobs has also chaired a graduation requirements committee of about 20 people, which
has also made decisions by consensus. The committee produced a report to the Board that
recommended a strategy for implementing new graduation requirements. Jacobs was listed as
the person who prepared the report, but there was no evidence as to whether he would present
it to the Board.
Jacobs described his activities in connection with several LAUSD programs. He
variously described himself as a "consultant or an advisor" to principals on the accreditation
program, as "part of a team" putting together a mathematics program, as a developer of
training for algebra teachers, as a "liaison" sharing information with principals, and as a
facilitator of professional development. Although he has thus had many roles and
responsibilities in his position as director, he believes he actually had more power in his
previous position as a high school principal.
I conclude that LAUSD has not met its burden of proving that Jacobs is a management
employee. It appears that the class description accurately describes his position as one
providing support, leadership and coordination for various LAUSD programs, and not as one
with significant responsibility for formulating policy. His committee service, as he described
it, would not be enough to make him a management employee. (Hartnell; Marin; San
Francisco.)
I also conclude that AALA's unfair practice charge is timely as to Jacobs, whose
position was first listed as management on the Classification Plan of November 29, 2000. I
further conclude, however, that AALA has not proved an unlawful unilateral change as to
Jacobs, whose position was apparently created as a new and vacant position for which
candidates were recruited.
29

Director, Middle School Programs
The other disputed position directly below Rousseau is the director for middle school
programs, a position recently held by J. D. Gaydowski (Gaydowski). On the Classification
Plan of March 13, 2000, neither Gaydowski nor his position was listed. 	On the September 19
Classification Plan, Gaydowski was still not listed, but the position of director for middle
schools/summer school programs was listed as a vacant management position (class code
0103, base salary schedule 48G). On the November 29 Classification Plan, both Gaydowski
and his position were listed as management (class code 0103, base salary schedule 45G).
Gaydowski believed the position had been new in July 2000. There had been job flyers
in May 2000 and August 2000, but he actually heard about the position by word of mouth. He
filed an application, went through an interview process, and ultimately took the position in
October 2000.
Gaydowski's class description describes his job purpose as follows:
Provides instructional direction to middle schools in the
development of a standards-based instructional program that
meets the unique needs of the middle school student. Provides
leadership in establishing an articulation program with both
elementary and senior high schools to ensure coherent,
coordinated instructional programs.
Gaydowski testified that this is "not precisely" what he actually did.
The class description describes Gaydowski's essential functions as follows:
1. 	Coordinates articulation between middle schools and high
schools and between middle schools and elementary schools
with local districts.
2. 	Provides instructional direction to implementation of the
matriculation guidelines effective with the class of 2003 and
as related to Standards Based Promotion guidelines.
3. 	Provides support to local districts to review and implement
instructional models used to meet the needs of students in
30

extended learning opportunities and Intensive Academic
Support classes.
4. 	Reviews curriculum and instructional programs at the middle
school level to be responsive to the recommendations of the
Middle Grades Task Force 2000.
5. 	Develops strategies to increase student access to a challenging
curriculum, including Algebra.
6. 	Develops strategies to improve the matriculation rate to high
school.
7. 	Evaluates the performance of subordinate personnel.
Gaydowski testified that he actually performed essential functions 2, 4, 5, 6 and 7 and part of
function 3. (These essential functions are parallel to those of the director for high school
programs previously discussed.) None of these essential functions is specifically described as
including policy development or formulation.
Rousseau had not yet taken her position when Gaydowski took his, so his
responsibilities were explained to him by Shannon, who was then spearheading an effort to
redevelop LAUSD's middle school matriculation policy. Gaydowski testified in part:
And so I was given to understand that I was going to be in
charge of that redevelopment, that I should establish a principal
task force and that we should establish and recommend policies
in that direction, so that she could carry them forth to the Board,
first through the committee on instruction, that committee, and
then finally, to the Board. And that did actually come to fruition
by February, between October and February. So that was one of
my main responsibilities.
She also assigned me the secondary summer school piece,
because she was, with another person at the coordinator level,
was developing the elementary summer school plan. So the
secondary summer school was left to me to replace a unit that
already been there in the previous year, but did not exist at this
time.
Gaydowski's two main responsibilities, as explained to him by Shannon, thus involved
matriculation and summer school.
31

regard to matriculation, Gaydowski testified he chaired what he variously referred
to as a committee, a task force or a focus group of 9 to 11 principals and directors. The group
made decisions by consensus, and Gaydowski was not under the impression that he had veto
power. The group ultimately produced a set ofrecommendations, which Gaydowski presented
to Shannon. A committee headed by Shannon and including Gaydowski then reshaped those
recommendations, making a significant policy revision. 	Shannon then presented the revised
recommendations to a Board committee, which ultimately referred them to the whole Board for
adoption. Although Gaydowski was aware of the documents sent to the Board, it does not
appear that he was directly involved in any presentations to Board members. After Board
adoption, Gaydowski was responsible for constructing a memo explaining the new policy,
which was reviewed and approved by the LD superintendents before it went out. This was
apparently not a formal pink policy memo, however. Gaydowski generally described himself
as an interpreter or explainer of policy bulletins and memos, not as an author.
With regard to summer school, Gaydowski and a coordinator under Shannon
established a summer school intervention committee, with representatives from each of the 11
LDs. 	The committee decided on a summer school calendar by consensus, although Gaydowski
understood it would otherwise have been his call, subject to Shannon's review. 	Gaydowski
was also responsible for readjusting policy bulletins and memos in light of the new LAUSD
structure and other changing information. Gaydowski testified in part:
Those were memoranda based on district policy. The policy
wasn't changing, basically, it was the memoranda information
[that] needed to change.
Publishing the readjusted documents and distributing them across LAUSD became a major
project in itself.
32

I conclude that LAUSD has not met its burden of proving that Gaydowski was a
management employee. Instead, he appears to have had an important intermediary role,
providing input and recommendations to the policy-making levels above him (through
Shannon and Rousseau) and explaining their policy decisions for LD implementation. It does
not appear that he himself had any real discretionary authority over those policy decisions.
I also conclude that AALA's unfair practice charge is timely as to Gaydowski, whose
position was first listed as management on the Classification Plans of September 19 and
November 29, 2000. I further conclude, however, that AALA has not proved an unlawful
unilateral change as to Gaydowski, whose position was apparently created as a new and vacant
position for which candidates were recruited.
Administrative Coordinator, Child Development
At the same third level of central administration as Liechty, Shannon and Rousseau,
directly below the deputy superintendents, is the assistant superintendent for early childhood
education, a position recently held by Sheila Derrig (Derrig) and currently held by Carmen
Schroeder (Schroeder). 	There is no dispute in the present case that Derrig and Schroeder have
been management employees.
There is a dispute, however, about the administrative coordinator for child
development, a position directly below Derrig and Schroeder, recently held by Cathleen Kibala
(Kibala) and currently held by Barbara Gutierrez (Gutierrez). Kibala was appointed to the
position (without formally applying) in August 1993 and left the position in July
Classification Plan of March 13, 2000, listed Kibala as a management employee, and the
September 18 and November 29 Classification Plans listed Gutierrez as a management
employee.
33

The class description describes the job purpose as follows:
Serves as assistant to the administrative head
of
the Early
Childhood Education Division; assumes co-administrative
responsibilities
of
the division
as
delegated. Responsible for the
overall daily operation
of
the Division.
The job purpose is thus not specifically described as including policy development or
formulation. The class description describes the essential functions as follows:
1.	
Assists the Assistant Superintendent, Early Childhood
Education in administering, monitoring, planning, developing,
implementing and evaluating the Early Childhood Education
Division's policies and programs.
2.	
Administers implementation
of
the Early Education
Improvement Plan: Building a Foundation for Academic
Success's goals and recommendations.
3.	
Supervises, coaches, monitors, and supports Division
administrative, instructional, clerical and custodial staffs.
4.	
Administers and evaluates ongoing, differentiated and special
administrators professional development series.
5.	
Provides technical assistance, guidance and support to all
ECE Directors, Office Managers and Division central office
staff.
6.	
Maintains the daily operations
of
the ECED building.
7.	
Administers and evaluates various District and community
collaboratives and partnerships.
8.	
Coordinates, monitors and evaluates the performance
of
external contracted consultants and providers.
9.	
Supports UTLA's Article XXX Committee activities, as
needed.
10. Evaluates the performance
of
subordinate personnel.
Kibala testified that the class description is accurate, except that during her tenure she had the
additional function
of
overseeing the operation
of
children's centers.
The first described essential function includes in part a statement that the administrative
coordinator "[a]ssists the Assistant Superintendent, Early Childhood Education in
..
	,
developing
	...
	the Early Childhood Education Division's policies and programs." It is
unclear from this description, however, whether the administrative coordinator actually has
34

some discretionary authority to develop policies,
or
whether the administrative coordinator
assists in policy development in other ways.
When Kibala was asked about her day-to-day responsibilities, she testified as follows:
Well, it depended on the day. 	Some -- any questions that
the coordinators there may have about programs, or policies, they
would come to me, because each person in that office, each
administrator had a responsibility
of
some program directly
related to the centers. So
if
there were some issues that arose,
they would come and we would discuss those issues.
	If
it was
policy, we would discuss that and then take it to Sheila Derrig.
It
thus appears that while Kibala discussed policy issues, Derrig was the one who had authority
over those issues.
I conclude that LAUSD has not met its burden
of
proving that Kibala and Gutierrez
have been management employees. I also conclude, however, that
AALA's
unfair practice
charge is untimely as to Kibala and Gutierrez, whose position was listed as management before
June 6, 2000.
Director, Mental Health Services
At the same third level
of
central administration as the assistant superintendents
previously mentioned, directly below the deputy superintendents, is the assistant
superintendent for student health and human services, a position recently held by Sally
Coughlin (Coughlin) and currently held by Maria Reza (Reza). There is no dispute in the
present case that Coughlin and Reza have been management employees. There are disputes,
however, about four administrators directly below them.
One
of
the disputed positions is the director for mental health services, a position
recently held by Marleen Wong (Wong). On the Classification Plan
of
March 13, 2000, as
35

well as later Classification Plans, Wong and her position have been listed as management.
Wong held the position from December 1993 to November 2001.
Wong's class description, which she testified is accurate, describes her job purpose as
follows:
Serves as head of the District Mental Health Services Branch
within the Student Health and Human Services Division; directs
and supervises the planning, development and implementation of
mental health crisis teams, suicide prevention and threat
management programs in the District; directs the delivery of
mental health services to District students.
The class description describes her essential functions as follows:
1. 	Directs the delivery of mental health services to students in
general and special education schools, centers and programs,
children's centers, adult education schools and centers, and
clinics.
2. 	Serves as technical adviser to local districts and central office
staff to develop, train and maintain crisis teams and threat
management and suicide prevention programs.
3. 	Provides crisis intervention, student support and counseling
during emergencies, disasters and other crises.
4. 	Serves as the District's liaison to and administers federal and
state programs, including Medi-Cal reimbursement, Special
Education Designated Instructional Service Counseling,
Federal Emergency Management Agency, U.S. Department of
Education, Early Mental Health Initiative and other specially
funded grants and programs.
5. 	Oversees ongoing programs and fiscal operations of mental
health services related to Medi-Cal services, programs and
staff.
6. 	Develops and implements training and supervision of staff to
meet federal guidelines and audit mandates; plans and directs
District wide training programs related to school mental
health education, crisis intervention and disaster recovery.
Prepares proposals for specially funded grants in the areas of
mental health, disaster recovery and crisis intervention.
8. 	Supervises school-based programs for graduate students,
professional mental health volunteers and child psychiatry
fellows from local universities.
9. 	Evaluates the performance of subordinate personnel.
36

Neither the job purpose nor any of these essential functions is specifically described as
including policy formulation.
Wong's hearing testimony, however, revealed that she has had significant
responsibilities for policy formulation. 	She was examined and testified in part as follows:
Q 	Now, during this 2000-2001 school year did you have
responsibility for formulating policies that would be
disseminated among the local districts as to these particular
programs?
A 	Yes, I did. Probably the ones that I would have more
activity around would be, for instance, the clinic programs
and how they would operate, because those were services that
were provided to students based on referrals from schools,
and that would be very technical, it wouldn't be something
that my immediate supervisor would -- they would probably
depend on the director to do that.
Q 	Which would be your area of responsibility?
A 	Yes, correct. The District crisis team, certainly, that was
an area. The mental health intervention project. The
development of the early behavioral programs, certainly that
was a big issue. The USC neighborhoods schools program,
which is very small, but still I had more direct input into that
around policies. And I would say those would be the ones.
Wong thus described a direct and significant policy role.
Wong testified to several other examples of significant responsibilities. After the
Northridge earthquake of 1994, she played a large role in developing an earthquake
and recovery program that LAUSD adopted. In 1998 or 1999, she attended a
meeting with Coughlin and the LAUSD superintendent, who strongly criticized a proposed
early behavior intervention program. The superintendent was impressed by comments Wong
made, so Coughlin put her in charge of a group to develop a better proposal, which the Board
ultimately adopted. Wong herself did not formally present the proposal to the Board, but she
37

part of the report and "said a few things" to the Board. After the national tragedies of
September 11, 2001, Wong spent two weeks with the LAUSD superintendent, providing
technical assistance about things that needed to be done.
I conclude that Wong has been a management employee. Although she freely gave
credit to other administrators, it appears that her position has been one of leadership in the
formulation of policies on mental health services. I also conclude that AALA's unfair practice
charge is untimely as to Wong, who was listed as a management employee before June 6,
2000.
Director, District Nursing Services
Another disputed position directly below Reza is the director for district nursing
services, a position held by Karen Maiorka (Maiorka). On the Classification Plan of March 13,
2000, as well as later Classification Plans, Maiorka has been listed as a management employee.
Maiorka's class description describes her job purpose as follows:
Serves as head of the District Nursing Services Branch within the
Student Health and Human Services Division; directs District
nursing services in schools; provides leadership to Field
Coordinator(s), School Nursing; and collaborates with public and
private agencies in providing health services to District students.
Maiorka testified that this description is accurate, except that much of the direction of nursing
services in schools is now done in the LDs, with Maiorka providing leadership and technical
support.
The class description describes Maiorka's essential functions as follows:
Directs and supervises District Nursing Services Branch
activities.
2. 	Provides administrative leadership for and coordinates
District school nursing services, including supplemental
school nursing programs supported by special funding.
38

3. 	Supervises the implementation, evaluation and improvement
of the school nursing program.
4. 	Cooperates with other organizational units to ensure the
integration of the school nursing program with the total
educational program of the District.
5. 	Establishes and evaluates programs of in-service education
and staff development.
6. 	Collaborates with public and private agencies in providing
health services to students.
7. 	Evaluates the performance of subordinate personnel.
Maiorka testified that this description is accurate, except that it omits the additional essential
function of recruiting nurses. Neither the job purpose nor the essential functions are
specifically described as including policy formulation.
Maiorka testified that although LAUSD has policy bulletins that affect nursing services,
those bulletins are usually authored by the director of medical services, and issued by Reza.
Maiorka collaborates on those bulletins, but her input generally concerns how programs are
going to be put into action, which is her area of responsibility.
Maiorka has made suggestions for improving nursing services, in particular that there
be an increase in staffing, but there is no evidence that her suggestions have reached LAUSD's
higher levels. As an individual, Maiorka does not have budgetary discretion to decide, for
example, to add to the audiometric testing program and to reduce the child development
program.
In connection with staff development, Maiorka described her role as one of providing
technical support. In connection with a contractual arrangement with a private health services
provider, she described her role as one of facilitating the activity but not actually writing the
memorandum of understanding.
I conclude that LAUSD has not met its burden of proving that Maiorka is a
management employee. Although she has significant responsibility for putting LAUSD
39

programs into action, she does not appear to have significant discretionary authority 	the
formulation of LAUSD policies.
I also conclude that AALA's unfair practice charge is untimely as to Maiorka, whose
position was listed as management before June 6, 2000.
Director, Integrated Health Partnerships
Another disputed position directly below Reza is the director for integrated health
partnerships, a position held by John DiCecco (DiCecco ). 	On the Classification Plan of
March 13, 2000, DiCecco was listed as a management employee, and his position was listed as
a new management class. On the September 19 and November 29 Classification Plans,
DiCecco and his position were again listed as management.
DiCecco's class description, which he testified is accurate, describes his job purpose as
follows:
Develops, facilitates and provides oversight for programs,
partnerships, contractual agreements, reimbursement and other
activities among outside providers, health and human services
agencies, and District schools and offices to deliver an integrated
program of health services to District students.
The class description lists ten essential functions, of which the first four are described as
follows:
1. 	Administers the operations and finances related to Medicaid,
Healthy Families and other health insurance, reimbursement
and health demonstration programs.
2. 	Provides technical direction to other Student Health & Human
Services (SHHS) Division staff, CHAMP coordinator, Medi-
Cal Reimbursement Unit and Student & Family Assistance
3. 	Formulates, develops and implements policies and procedures
to optimize coordination between SHHS units, other District
offices and external health services providers.
4. 	Analyzes, interprets and implements state and federal policy;
works with state, federal and other public and private entities
40

to formulate new or modify existing policies; and reviews,
monitors and advises on pending legislation affecting the
health services program.
The third and fourth essential functions are thus specifically described as including policy
formulation.
DiCecco testified that he had been responsible for developing and revising a yellow
policy bulletin establishing the policy framework for volunteer service agreements. His work
on the bulletin was reviewed by Reza and others but was not changed. The bulletin was signed
by Reza, but DiCecco was listed as the central office contact, and requests for waivers come to
him for review. DiCecco is also responsible for creating a policy bulletin on the formation and
operation of school-based health clinics.
DiCecco also testified that he had written 10 to 15 Board informatives on integrated
health partnerships for the Board to approve. He had recommended four contracts that were in
excess of $250,000 each, and in connection with one of them he had appeared before the Board
and answered questions, without Reza being present.
DiCecco further testified that he had been involved in drafting two pieces of LAUSD-
sponsored legislation. LAUSD's government relations branch had found legislators to
introduce the legislation, but it had deferred to DiCecco's expertise on substantive issues.
DiCecco himself had testified before legislative committees on four occasions.
I conclude that DiCecco is a management employee. Consistent with his class
description, he has had significant responsibility for formulating LAUSD policies as expressed
in policy bulletins, Board informatives and LAUSD-sponsored legislation, and he has had
direct contact with Board members and legislators on policy issues.
41

I also conclude that AALA's unfair charge is untimely as to DiCecco, who was listed as
a management employee before June 6, 2000.
Director, Pupil Services
The fourth and final disputed position directly below Reza is the director for pupil
services, a position held by Hector Madrigal (Madrigal). On the Classification Plan of
March 13, 2000, as well as later Classification Plans, Madrigal has been listed as a
management employee.
Madrigal's class description, which he testified is accurate, describes his job purpose as
follows:
Directs the planning, organization, development and monitoring
of programs and projects pertaining to Pupil Services in the
Division of Student Health and Human Services to ensure
compliance with state and federal pupil service laws.
The class description lists eight essential functions, of which the first four are described as
follows:
1. 	Provides administrative leadership and oversight for the
District's Pupil Services and Attendance Branch and the
Student Discipline Proceeding, AB 922 and Child Abuse
Units.
2. 	Formulates policy and directs the revision of policy bulletins
to implement new legislation and Board of Education policies
and resolutions; reviews, proposes or drafts legislation
pertaining to pupil services.
3. 	Assists in the development, coordination and implementation
of projects pertaining to pupil services; prepares and/or
responds to inquiries made by Board members and state,
county or city officials.
4. 	Assists members of the Board of Education on delicate,
sensitive projects or issues pertaining to pupil services;
prepares special Board resolutions for individual Board
members; composes responses for Board members to media
articles/editorials related to pupil services.
42

second essential function is thus specifically described as including policy formulation,
and the third and fourth essential functions are specifically described as including interaction
with Board members.
At the hearing, Madrigal was examined about his and his branch's responsibilities in
connection with student discipline proceedings. He testified in response as follows:
One is that we're responsible for preparing district policy
bulletins for the district to adopt regarding the rules and
regulations and policies on student discipline, and also for
ensuring that the Board of Education follows state law and
federal laws when they are disciplining youngsters in matters
such as expulsions.
And, as we recommend expulsions to the board on a
biweekly or bimonthly basis, we prepare reports to the board for
action and serve as the board's advisors on matters regarding
disciplinary proceedings.
Madrigal thus confirmed that in this connection he has had both a policy role for LAUSD and
an advisory role for the Board.
Madrigal testified that he and his branch routinely revised yellow policy bulletins,
totaling 20 to 30 in a peak year. He would present the revised bulletins to his superiors and
request their approval for release. About a year before he testified, he had been responsible for
preparing an update of a bulletin concerning crime-reporting procedure to reflect the collective
thinking of a committee.
On one occasion, the LAUSD superintendent asked Madrigal to chair a task force on
behavior intervention policies. Madrigal had exclusive responsibility for drafting the resulting
report, and he was the primary spokesperson in presenting it directly to the whole Board. On
another occasion, he chaired a task force on expulsion policies. He testified:
My personal role was, again, to preamble most of the board
report itself, and to do most of the board presentation verbally.
43

On yet another occasion, the Board asked Madrigal and his staff to develop a policy on return
after expulsion, to be submitted directly to the Board.
I conclude that Madrigal is a management employee. Consistent with his class
description, Madrigal is regularly called upon to formulate policy, sometimes directly for the
Board. I also conclude that AALA's unfair practice charge is untimely as to Madrigal, who
was listed as a management employee before June 6, 2000.
Director, Psychological Services
At the same third level of central administration as the assistant superintendents
previously mentioned, directly below the deputy superintendents, is the assistant
superintendent for special education, a position currently held by Donnalyn Jaque-Anton
(Jaque-Anton). There is no dispute in the present case that Jaque-Anton is a management
employee. There is a dispute, however, about a position directly below her.
The disputed position is the director for psychological services, a position held by Rene
Gonzalez (Gonzalez). 	On the Classification Plan of March 13, 2000, as well as later
Classification Plans, Gonzalez has been listed as a management employee.
Gonzalez's class description describes his job purpose as follows:
Serves as head of Psychological Services within the Student
Health and Human Services Division; directs and coordinates the
psychological services program of the District in grades K-12;
integrates the functions of Psychological Services with the total
educational program of the District.
testified that this description is accurate, except that he is now in the special
education division. The class description describes his first essential function as follows:
Develops, implements and monitors the policies and procedures
relating to the psychological services provided to the District's
44

elementary and secondary schools, conforming to California
Education Code and Title V of the Administrative Code.
Gonzalez testified that this description, with its specific inclusion of policy development, is
accurate.
Gonzalez gave some specific examples of his policy role. He testified in part:
For example, just recently the District issued to all schools
and offices a compliance handbook that laid out some very
specific policies and procedures related to special education
eligibility, related to transportation as a related service, DIS
[Designated Instructional Services] counseling, and several other
-- there were several other sections in that handbook. I had the
responsibility for developing the section on counseling for special
education youngsters.
Gonzalez testified that the District "really had not established that type of policy" on
counseling before. Jaque-Anton reviewed and approved the handbook before its release, but
she did not make any changes in the section prepared by Gonzalez.
Gonzalez further testified:
Another example is that there is a -- nationally and
statewide there's a real controversy about who should be in
special education, and why they're there, particularly in the area
of learning disabilities, that's the largest percentage of youngsters
that we have identified in the District. And yet they're -- national
and statewide there's inconsistency in how youngsters are
identified as learning disabled. One of the major projects that
we're working on right now, in our District, is to better define the
process by which we identify youngsters as learning disabled, and
so that's going to have a major impact not only in our District,
but statewide, in terms of redefining that category and the process
by which we do that. And that's -- I have a major responsibility
to make sure that happens.
Gonzalez also testified he had a role and responsibility to see that standards are developed to
increase the amount of time school psychologists can spend on assessment.
45

I conclude that Gonzalez is a management employee. Consistent with his class
description, he has had significant responsibility for developing LAUSD policies on
psychological services. I also conclude that AALA's unfair practice charge is untimely as to
Gonzalez, who was listed as a management employee before June 6, 2000.
Director, Specially Funded Programs, Compliance and Technical Support
At the same third level
of
central administration as the assistant superintendents
previously mentioned, directly under the deputy superintendents, is the associate
superintendent for specially funded and parent/community services programs, a position held
by Theodore Alexander, Jr. (Alexander). There is no dispute in the present case that
Alexander is a management employee. There are disputes, however, about two administrators
below him.
One
of
the disputed positions is the director for specially funded programs, compliance
and technical support, a position held by Margaret Jones (Jones). 	On the Classification Plans
of
March 13, September 19 and November 29, 2000, Jones was listed as a management
employee with the title
of
temporary advisor, MST, management (class code 0512, base salary
schedule
450).
	She was listed as a management employee with the director title (class code
0537, base salary schedule 47G) for the first time on a Classification Plan prepared on
March 15, 2001. She testified that she had actually had the director title since 1998 and had
received the salary upgrade in 2000.
Jones's class description, which she testified is accurate, describes her job purpose as
Directs the District's Specially Funded Programs, Compliance
and Technical Support Branch with specific responsibility for
assisting schools and other District offices in developing and
implementing programs, grades pre-K through 12, that are
46

consistent with state and federal specially funded program laws.
Monitors specially funded schools and offices for program
quality and fiscal compliance.
The class description lists eleven essential functions,
of
which the first four are described as
follows:
1.	
Directs the planning, organization, development and
monitoring
of
specially funded programs and budgets,
including Title
I;
School Improvement; and Economic Impact
Aide (EIA)/State Compensatory Education.
2.	
Provides guidance and technical support in areas related to
specially funded programs; provides for the dissemination
of
clear and consistent information regarding these specially
funded programs.
3.	
Coordinates the development and submission
of
the
Consolidated Local Educational Agency Plan, the
Coordinated Compliance Review, and other instructional
compliance documents necessary to maintain funding and to
certify compliance for Title
I,
School Improvement and EIA
compensatory education programs.
4.	
Directs implementation
of
procedures for monitoring
and approving school plans and budgets for
compliance with state and federal regulations and
develops and implements procedures for yearly and
long-term planning to support student achievement;
develops and interprets District policy as it relates to
state and federal laws affecting specially funded
programs.
This fourth essential function is thus specifically described as including policy development.
At the hearing, when Jones was questioned as to her duties and responsibilities, she
began her answer as follows:
Well, we develop policy related to Title I -- let me say this
another way. We develop guidelines for policy for Title I
programs, state compensatory education programs, school
improvement programs.
She explained later that the applicable state and federal laws are sometimes quite unspecific
(requiring, for example, that monies be used in a manner that is "supplemental"), so LAUSD
47

must create its own more specific policies (defining, for example, what a "supplemental"
counselor can and cannot do).
Jones also described her role in developing and issuing policy bulletins and memos.
Some of these require Board adoption, while others can be approved pursuant to authority
delegated by the Board. Policy bulletins must be approved by Alexander, but policy memos
have been approved by Jones herself.
Jones and a classified administrator annually produce a lengthy Board report
concerning a Title I consolidated application. Higher-level administrators approve the report,
but they have not changed it, and Jones and the classified administrator actually take it to the
Board. Also, on at least one occasion, Jones has sent a recommendation directly to the
LAUSD superintendent on a redirection of Title I monies.
I conclude that Jones is a management employee. Consistent with her class description,
Jones has had significant responsibility for formulating LAUSD policies, particularly in the
Title I area. I also conclude that AALA's unfair practice charge is untimely as to Jones, who
was listed as a management employee before June 6, 2000.
Director, SBlX Programs
The other disputed position directly below Alexander is the director for SB lX
programs, a position held by Harry Gerst (Gerst). On the Classification Plans of March 13 and
September 19, 2000, neither Gerst nor his position was listed. On the November 29
Classification Plan, the position was listed as a vacant management position. 	Gerst testified he
applied for the position in response to a flyer dated November 1 	2000. He then went through
an interview process and eventually assumed the position in March 2001.
Gerst's class description describes his job purpose as follows:
48

Administers the implementation of the Public Schools
Accountability Act (SB lX) as delineated in the District Plan for
School Performance Accountability.
Gerst testified that this description is accurate. The class description describes his essential
functions as follows:
1. 	Provides tactical support to Local District Superintendents in
the implementation of the Public Schools Accountability Act
(SBlX) as delineated in the District Plan for School
Performance Accountability.
2. 	Provides central coordination, monitoring and evaluation of
the Comprehensive School Reform Demonstration (CSRD)
Program, Immediate Intervention/Underperforming Schools
Program (II/USP), Program Improvement Schools (in
conjunction with the Specially Funded Programs Office), and
other District Prevention/Early Intervention Programs.
3. 	Provides central coordination and tactical support for the
Governors Performance Award Program, AB 1114
Certificated Employee Reward Program, and other award
programs.
4. 	Provides central coordination and tactical support for
selection of state approved external evaluators, as required by
SBlX.
5. 	Serves as liaison to federal, state and local agencies regarding
implementation of District accountability programs.
6. 	Evaluates the performance of subordinate personnel.
Gerst testified that this description is accurate, except that he does not perform the third listed
function, and that he performs functions related not only to SB 1X but also to AB961, another
recent piece of legislation. Neither the job purpose nor any of the listed functions is
specifically described as including policy formulation.
At the hearing, however, Gerst described his position in part as follows:
[M]y position is to take what the law states and give direction on
how the district is going to take that and work that into the
programs for schools that are under that, because there was
basically no direction from the state on what to do for plans and
how to get them in.
49

In the absence of state regulations, Gerst himself has had to interpret the recent legislation, and
then to see that it is implemented throughout LAUSD.
At the time he testified, Gerst had met one-on-one with the LAUSD superintendent
three times, explaining the recent legislation and updating the superintendent on its
implementation. 	He had also met with the LAUSD and LD superintendents six to eight times,
offering explanations on how to proceed. Gerst and his staff were working on a Board report
with recommendations on what to do with underachieving schools. The report would be
presented to the Board by Alexander, with Gerst "standing right in back of him." With Board
action, the recommendations would become LAUSD policy.
I conclude that Gerst is a management employee. Although he does not make the laws,
it is his responsibility to translate the laws into policy recommendations that can be adopted
and implemented by the LAUSD superintendent, the LD superintendents and the Board.
I also conclude that AALA' s unfair practice charge is timely as to Gerst, whose
position was first listed as management on the Classification Plan of November 29, 2000. I
further conclude, however, that AALA has not proved an unlawful unilateral change as to
Gerst, whose position was apparently created as a new and vacant position for which
candidates were recruited.
Administrator, Adult and Occupational Education Division
As previously noted, at the same second level of central administration as the deputy
superintendents is the assistant superintendent for adult and career education, a position held
,_.,,u,,«F,V Jackson (Jackson). There is no dispute in the present case that Jackson is a
management employee. There are disputes, however, about two administrative positions
directly below him.
50

One disputed position is the administrator for the adult and occupational education
division, a position recently held by Loretta Walker (Walker). On the Classification Plan of
March 13, 2000, as well as later Classification Plans, Walker was listed as a management
employee. Walker testified that she had held the same position under various titles since 1985.
Walker's class description, which she testified is accurate, describes her job purpose as
follows:
Directs the planning, organization, development and monitoring
of adult, occupational and vocational education programs and
projects in the Division of Adult and Career Education to ensure
compliance with state and federal adult education program laws.
The class description lists ten essential functions, the first two of which are described as
1. 	Serves as a resource and liaison to the District and local,
county, state and federal agencies by providing leadership and
guidance in the analysis, interpretation and development of
policy and compliance strategies pertaining to adult and
career education/programs.
2. 	Directs the design, development and implementation of
policies and procedures pertaining to Division of Adult and
Career Education (DACE) programs to meet the needs of the
community.
These two essential functions are thus specifically described as including policy development.
At the hearing, Walker gave examples of her policy role. 	She testified in part:
Well, what happened, periodically there would be some
changes in adult laws, or adult ed. guidelines as to how a program
should operate, and then we -- within the division our schools are
mini -- semi-autonomous, I guess you would say, the principals
have the authority to select their staff and establish their
programs. So my responsibility was to -- if we added new
guidelines, new regulations, or anything that would come from
the State to us, was to interpret that as it relates to working with
the principals, so that we would see that the program was
implemented throughout the District in a uniform manner.
51

Sometimes this interpretative process would result in policy bulletins. Jackson would sign the
bulletins, but Walker herself would prepare them or oversee their preparation.
I conclude that Walker has been a management employee. Consistent with her class
description, she has been responsible for developing adult and career education policies, some
of which have been formalized in policy bulletins. I also conclude that AALA's unfair
practice charge is untimely as to Walker, who was listed as a management employee before
June 6, 2000.
These conclusions also apply to Lupe Reyes, who has had the same class description as
Walker and who has also been listed as a management employee.
Administrative Coordinator, Legislation and Program Planning
The other disputed position directly below Jackson is the administrative coordinator for
legislation and program planning, a position recently held by Trusse Norris (Norris). On the
Classification Plan of March 13, 2000, as well as later Classification Plans, Norris was listed as
a management employee. Norris testified he assumed the position in 1996 or 1997.
Norris's class description, which he testified is accurate, describes his job purpose as
follows:
Serves as assistant to the administrative head of the Division of
Adult and Career Education; responsible for the overall daily
operation of the Division of Adult and Career Education.
Advises the District's Office of Government Relations on
legislative matters affecting the Division of Adult and Career
Education. 	Oversees the operation of the community adult
schools and employment preparation centers.
The class description lists thirteen essential functions, of which the first four are described as
follows:
1. 	Assists in the planning, developing, administering and
directing of the instructional and vocational training programs
52

at the District's community adult schools and employment
preparation centers.
2. 	Participates in establishing and implementing policies relating
to the technical and operational aspects of community adult
schools and employment preparation centers.
3. 	Oversees all legislation pertaining to Adult and Career
Education and serves as liaison to the District's Office of
Government Relations.
4. 	Assists the Assistant Superintendent, Adult and Career
Education with the development and implementation of
policies and procedures to ensure compliance with new
legislation pertaining to adult education.
The second and fourth of these functions are thus specifically described as including policy
development and establishment.
Norris testified in particular about his role in developing LAUSD's legislative
packages. He worked with others in writing legislative proposals, with the agreement of
Jackson and LAUSD's office of government relations. Norris would then act as an advocate
for those proposals.
I conclude that Norris has been a management employee. Consistent with his class
description, he has had responsibility to develop adult and career education policies, especially
as expressed in LAUSD's legislative packages. 	I also conclude that AALA's unfair practice
charge is untimely as to Norris, who was listed as a management employee before June 6,
2000.
Director, School Management Services
As previously noted, at the same second level of central administration as the deputy
superintendents and Jackson is the COO. Directly below the COO is the assistant
superintendent for planning, assessment and research, a position held by Esther Wong (Wong).
There is no dispute in the present case that Wong is a management employee. There is a
dispute, however, about an administrator directly below her.
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The disputed position is the director for school management services, a position held by
Dale Braun (Braun). On the Classification Plan of March 13, 2000, as well as later
Classification Plans, Braun has been listed as a management employee. She testified she
assumed the position in 1996.
Braun's class description describes her job purpose as follows:
Directs the Office of School Management to relieve school
overcrowding by monitoring student enrollment, modifying
school schedules and utilizing available District resources.
Braun testified this description is accurate. The class description lists fourteen essential
functions, of which the first eight are described as follows:
1. 	Supervises the Office of School Management Services to
administer the programs related to pupil enrollment, academic
scheduling and placing various programs in available
classrooms, subject to Board Rules and integration guidelines.
2. 	Oversees and administers plans to relieve school
overcrowding, including the Capacity Adjustment Program.
3. 	Supervises the location of available classroom and office
space for special education and other specially funded
programs at schools within the District.
4. 	Directs the development, organization and circulation of the
academic calendars for all District school schedules upon
completion of negotiations with concerned stakeholders.
5. 	Coordinates the reconfiguration of District elementary,
middle and senior high schools.
6. 	Manages program integration with other District offices and
support services for organizing the opening of new schools
and other programs.
7. 	Directs and monitors the implementation of policies outlined
in the scope of the Rodriguez Consent Decree.
8. 	Presents reports to the Board of Education.
Braun testified this description of her functions is accurate.
none of these functions is specifically described as including policy
formulation, the eighth is described as including reports to the Board. Braun testified
specifically about this function. 	At the time she testified, she had recently been involved with
54

three Board reports on the same agenda. One report included a recommendation she had
developed concerning placement of portable classrooms. She signed the report as the preparer,
although Wong approved and presented it. A second report concerned 2002-2003 school
calendars. Braun and her staff had drafted the calendars, although for technical reasons the
report was presented by the budget services office. When a Board member raised a question, it
was up to Braun to respond, which she did in a memo addressed to the whole Board and the
LAUSD superintendent.
The third Board report concerned calendar changes at three specific schools. In 1998,
Braun and her staff had recommended criteria for such changes, which the Board had adopted.
Two of the three schools in the report met those criteria, but one did not. Braun was
nonetheless recommending to the Board that all three schools be allowed to change their
calendars. Braun was responsible for reporting to the Board annually on such calendar
changes, as well as on school openings and grade-level reconfigurations.
Braun serves as a staff member to the Board's facilities committee. At the time Braun
testified, the committee had put her in charge of a working group to generate options for
relieving high school overcrowding. It would be Braun's primary responsibility to report back
to the Board committee.
Braun is responsible for recommending school boundary changes and calendar changes
to the LD superintendents. She is also part of a group that reviews proposed school sites and
makes recommendations as to the best ones.
Braun's office issues both yellow policy bulletins and pink policy memos. For
example, there is a yellow bulletin on an open enrollment policy that the office developed and
the Board approved. There are pink memos on calendar change and school capping.
55

I conclude that Braun is a management employee. Although her class description only
hints at it (in the eighth listed function), she has significant policy interactions with the Board
and the LD superintendents, and her office issues policy bulletins and memos to the schools. I
also conclude that AALA's unfair practice charge is untimely as to Braun, who was listed as a
management employee before June 6, 2000.
Administrator, Certificated Employment Operations
same third level of central administration as Wong, under the COO, is
associate superintendent for human resources, a position currently held by Irene Y amahara
(Yamahara). There is no dispute in the present case that Yamahara is a management
employee. There are disputes, however, about two positions below her.
One disputed position is the administrator for certificated employment operations, a
position recently held by Michael Acosta (Acosta). On the Classification Plan of March 13,
2000, as well as later Classification Plans, Acosta was listed as a management employee.
Acosta testified he assumed the position in about 1987.
Acosta's class description, which he testified is generally accurate, describes his job
as
Serves as the administrator of the Certificated Employment
Operations Branch of the Personnel Division; provides leadership
and direction and formulates policy for the operation of the
Branch; participates in Personnel Division and District policy
development and review; represents the Personnel Division in
issues related to recruitment, contracting and assignment.
Performs administrative functions with broad latitude for
independent action affecting Branch and Division activities.
class description lists twelve essential functions, of which the first six are described as
follows:

l. 	Administers and directs the staff of the Certificated
Employment Operations Branch, formulates and develops
operational policies and procedures for the Branch's
activities.
2. 	Supervises the work of the Branch directors; monitors Branch
activities to assure compliance.
3. 	Administers and directs the operation of the District intern
Program.
4. 	Serves as a technical adviser, resource or liaison between the
Personnel Division and other school districts, universities, the
State Department of Education, Commission on Teacher
Credentialing, Office for Civil Rights, and other organizations
in personnel matters dealing with the interpretation of
operating policies, rules and procedures for certificated
employees.
5. 	Supervises the District's Teacher Integration Program to
insure that policies and procedures related to the program are
in accord with the mandates of the Office for Civil Rights.
6. 	Recommends and/or assists in the formulation and
development of District policies and practices relating to the
recruitment, selection, and assignment of certificated
personnel.
The job purpose and the first and sixth essential functions are thus specifically described as
including policy development and formulation.
When Acosta's successor was being recruited, the flyer stated in part:
This key position offers an opportunity to influence public
education policy not only within the school district, but at the
State level as well.
Acosta testified this statement was accurate also.
At the hearing, Acosta gave several examples of his policy role. In the recruitment
area, he formulated what qualifications were needed to apply for employment with LAUSD.
area 	teacher integration, he established a new formula for integration
were adopted district-wide. Acosta presented the guidelines to LAUSD's legal counsel,
they were ultimately distributed in pink policy memos signed by Y amahara. By his account,
Acosta was also "very involved" in the establishment of LAUSD's intern program.
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Acosta directed LAUSD's recruitment of teachers from outside the United States. The
Board instructed him to complete a collaborative recruitment program with Mexico, which he
did, meeting with Mexico's Ministry of Education. On his own initiative, he made a decision
to recruit teachers from Canada as well.
Acosta's activities extended outside LAUSD in other ways too. He testified in part:
I appeared, I have spoken at the State Board of Education
for the district on behalf of the district, to seek district waivers.
I've spoken to senators and congress field reps, and also at
hearings, I spoke often at hearings, legislative hearings,
representing the district there. 	I pretty much on a monthly basis
talked to people in Sacramento on the Commission of Teaching
Credentialing.
Acosta cited this as another example of his policymaking role.
I conclude that Acosta has been a management employee. Consistent with his class
description, he has played a leading role in formulating LAUSD policies relating to the
recruitment, selection and assignment of certificated personnel. I also conclude that AALA's
unfair practice charge is untimely as to Acosta, who was listed as a management employee
before June 6, 2000.
Administrative Coordinator, Special Education Employment Operations
The other disputed position below Y amahara is the administrative coordinator for
special education employment operations, a position held by Carolina Pavia (Pavia). 	On the
Classification Plans of March 13, September 19 and November 29, 2000, neither Pavia nor her
position was listed. They were listed as management for the first time on a Classification Plan
on March 15, 2001.
Pavia testified she assumed the position in February 2001. She had actually applied to
be Acosta's successor (as administrator for certificated employment operations), but someone
58

else was selected for that job, and Pavia was offered the administrative coordinator job instead.
It does not appear that LAUSD had actually recruited candidates specifically for the
administrative coordinator position.
The position had appeared as vacant on an organizational chart dated November 9,
2000. In its post-hearing brief, LAUSD states in part:
The District hired Carolina Pavia into a vacant position in
February 2001, ... and then classified the position created for
her as management at Pay Grade 48G.
The evidence supports this statement.
Pavia testified she reports directly to Y amahara on policy issues, although she deals
with Acosta's successor on day-to-day matters, such as routine procedural issues. Pavia and
Acosta's successor are both on the same base salary schedule that Acosta was.
Pavia's class description describes her job purpose as follows:
Assists the Administrator, Certificated Employment Operations
with the administration and overall coordination of Branch
programs and activities; administers the Division's Chanda Smith
[Consent Decree] Special Education Certificated Employment
Operations Section programs and activities.
Pavia testified this description is accurate. The class description lists twelve essential
functions, of which the first six are described as follows:
1. 	Serves as a liaison between Human Resources Division and
Chanda Smith Consent Decree administrators and attorneys,
the Special Education Division, the Board of Education and
universities in personnel matters relative to special teachers.
2. 	Provides staff assistance and counsel to the Administrator,
Certificated Employment Operations in the administration
Branch programs and activities; may act 	the absence of the
Administrator, Certificated Employment Operations.
3. 	Assists in the formulation of new policies and procedures or
the modification of existing policies and procedures relative
to personnel practices in response to new developments and
trends.
59

4. 	Directs a program of personnel services for the recruitment,
selection, examination, contracting, processing, placement
and assignment of special education teachers.
5. 	Directs services which assist special education teacher
applicants in obtaining, renewing or registering credential
documents or other authorization; monitors teachers with
emergency permits.
6. 	Recommends or assists in the formulation of District policies
and practices related to the recruitment, selection, contracting,
placement and assignment of special education teachers;
provides advisory and technical assistance in these areas.
The third and sixth essential functions are thus specifically described as including policy
formulation and modification. Pavia testified that this description is accurate, and that she
spent about 30 percent of her time on policy issues.
Pavia testified she was spending a lot of time working on a "possible revamping" of
LAUSD's special education intern program, which would necessitate "some major procedural
and policy changes" and even some legislative changes. She was working with other
administrators and specialists to achieve the consensus she thought was necessary. 	Once a
consensus was reached, she would go ahead with drafting some legislative language. She was
discussing the feasibility of the changes with Yamahara, who she understood was "the
definitive person who would say yea or nay to that kind of a recommendation."
Pavia had previously recommended changes in the special education session at
LAUSD's teacher training academy. She testified in part:
I met with a committee, I pulled them together, I got their input,
and I recommended that we pull speech and language out and it
was accepted.
It was 	accepted Pavia's recommendation, and the change was made.
Pavia had also made recommendations concerning where LAUSD would go or not go
to recruit special education teachers. At least one such recommendation had been approved by
60

Yamahara, who Pavia understood "was the final say." Pavia would be making other such
recommendations to consent decree administrators.
Pavia had also worked with a California State University professor to "draw up some
agreements" concerning a pre-intern program. It is unclear who at LAUSD had final approval
of
those arrangements. Pavia had also had to recommend cuts in the budget she administers,
on the cuts with Yamahara and fellow administrators.
I conclude that Pavia is a management employee. In Pavia's specialized area
of
responsibility, it appears that considerable policymaking authority has been delegated to
Yamahara, and it further appears that Pavia has significant discretion in formulating and
recommending policies for Yamahara's approval.
I also conclude that AALA's unfair practice charge is timely as to Pavia, who was
listed as a management employee for the first time on a Classification Plan prepared on
March 15, 2001. I further conclude that LAUSD's designation
of
Pavia as a management
employee was an unlawful unilateral change, because her position was not a new position for
which candidates were recruited. (Regents.)
Assistant Superintendent, Instructional Technology
As previously noted, at the same second level
of
central administration as the deputy
superintendents, Jackson, and the COO is the CIO. There is a dispute about a position directly
below the CIO.
The disputed position is the assistant superintendent for instructional technology, a
James Konantz (Konantz). 	On the Classification Plans
of
March 13 and
September 19, 2000, Konantz was listed as a management employee with the title of temporary
adviser, MST, management (class code 0512, base salary schedule 48G). He testified that his
61

actual title had been director for instructional technology. On the November 29 Classification
Plan, he was listed as a management employee with the assistant superintendent title (class
code 0024, base salary schedule 50G). He testified that in November 2000 he had been
promoted to the assistant superintendent position, where he is a contract level administrator
with a year-to-year contract.
Konantz's class description, which he testified is accurate, describes his job purpose as
follows:
Serves as head of the Instructional Technology Division; provides
direction and administrative leadership for organizing, planning,
and implementing District-wide instructional technology,
administrative training and support, data processing, information
systems, and systems software and security administration.
The class description lists eleven essential functions, of which the first six are described as
follows:
1. 	Administers the activities of the Information Technology
Division including directing the development,
implementation, maintenance, control, and modification of
the District's computerized and automated systems.
2. 	Coordinates the service to users and directs the review and
evaluation of existing and newly developed data and word
processing systems, hardware equipment, and software
development; recommends the acquisition of hardware
systems and the development and/or purchase of software
packages.
3. 	Directs the design, programming, and implementation of
school operational management information systems.
4. 	Directs the planning and development of in-service activities
designed to train teachers, counselors, and school
administrators in the use of data handling techniques which
apply to their subject field instructional programs, counseling
and guidance programs, and school administration,
respectively; directs the establishment of computerized
instructional modules in schools,
5. 	Provides consultative services for the preparation and
distribution of instructional materials and media related to
computer literacy programs and other instructional areas.
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6.	
Directs and coordinates the development and recommendation
of
policies, procedures, and programs for the Information
Technology Division.
The sixth function is thus specifically described as including policy development.
Konantz testified that he had been involved in policy development and recommendation
even before his promotion, when he was still the director for instructional technology.
	He
specifically testified about his role in textbook selection policies, textbook loss policies,
instructional technology planning policies, and internet usage policies. With regard to these
last policies, he described his role as follows:
The role that I played would be putting together the committees
that worked on the policy statements, to be able to make sure that
the policy statements that we were -- that were under
consideration or [sic] compliance with the law, and that also to be
able to communicate those policies, or anticipated policies, to the
user community, get input, formulate District policy, recommend
District policy to the Board
of
Education for adoption.
The Board adopted the policy he recommended, and a policy bulletin was issued. He testified
he played a similar role with regard to textbook selection policies, while meeting frequently
with the LAUSD superintendent.
When Konantz was promoted, his previous duties continued and expanded in scope.
He gained responsibility for data processing operations, among other things, and he and the
CIO now develop data processing policies. On some Board agenda items, both he and the CIO
sign off, but on others he signs alone, and he has issued various policy bulletins and memos on
instructional technology issues.
that Konantz is and has been a management employee, both as an assistant
superintendent and as a director, listed as a temporary adviser, MST, management. Even
63

before his promotion, he was working with the LAUSD superintendent and the Board to
formulate LAUSD's instructional technology policies.
I also conclude that AALA's unfair practice charge is untimely as to Konantz, for two
reasons. First, Konantz was listed as a management employee before June 6, 2000. Second,
Konantz is now a contract level administrator, and AALA has known since the 1991
recognition agreement that LAUSD deems all such administrators to be management
employees.
Director, Instructional Support Services, Local District (DISS)
In general, each LD has one DISS, for a total
of
eleven district-wide.
10
They report
directly to the LD superintendents, who in tum report directly to the LAUSD superintendent.
As previously noted, there is no dispute in the present case that the LD superintendents are
management employees, but there is a dispute about the DISSs.
As previously noted, the DISSs were not listed on the Classification Plan
of
March 13,
2000, but were listed as management employees for the first time on the September 19 and
November 29 Classification Plans. The DISS positions were created as part
of
the LAUSD
reorganization on July
1,
2000.
flyer dated May 10, 2000, described the DISS position as follows:
Assists the Local District Superintendent in the administration
of
instructional support services within a designated administrative
district; assists in the development and implementation
of
strategic plans ensuring that students achieve high academic
standards in accordance with applicable laws, Board Rules,
consent decrees and administrative regulations and procedures.
did not specifically describe policy formulation as part
of
the job.
10 Actually, one LD has eliminated the position, while another has two DISSs.
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The DISS class description describes the
job
purpose as follows:
Assists the Local District Superintendent in the administration
the program
of
instructional support services within a designated
local district; assists in the development and implementation
of
policies and strategic plans for the program to ensure that
students achieve high academic standards in accordance with
applicable laws, Board rules, consent decrees and administrative
regulations and procedures.
The
job
purpose is thus specifically described as including policy development at the LD level.
The two DISSs at the hearing who were asked about this description testified that it is accurate.
The class description lists seven essential functions,
of
which the first four are
described as follows:
1.	
Assists the Local District Superintendent
in
planning,
implementing, evaluating and improving the instructional
support services program in each pre[-]K-12 feeder pattern
of
a local district; assists in developing goals, plans and
commitments for the program that ensure that students
achieve high academic standards; and ensures articulation
of
the instructional program.
2. 	Directs the formulation
of
policies and procedures for the
following programs and staff within the local district: (1)
curriculum/instruction/assessment; (2) language acquisition;
(3) professional development; (4) categorical programs; (5)
gifted/talented and (6) summer school, intersession and
intervention.
3. 	Directs the formulation
of
policies and procedures for the
programs and staff providing services in the areas
of
(1) early
childhood education; (2) parent/community outreach; (3)
instructional technology; (4) special education; and (5)
student health and human services.
4. 	Interprets and implements policies from the Office
of
the
General Superintendent and the Board
of
Education.
and third functions are thus specifically described as including policy formulation
at the LD 	The two DISSs who were asked testified that this description is accurate
except in a few details.
65

I readily conclude that, consistent with their class description, DISSs have significant
responsibilities for formulating LD policies. It is less clear, however, whether DISSs have
significant responsibilities for formulating LAUSD policies. This makes it necessary to
answer a legal question: Must an employee have significant responsibilities for district-wide
policy formulation in order to be a management employee?
EERA section 3540.1 (g) specifically refers to "formulating district policies" (emphasis
added). In its post-hearing brief, LAUSD points out:
The reference is to "district," not to the "public school
employer."
This distinction is unpersuasive, however. Under EERA section 3540. l(k), "public school
employer" means the school district.
Berkeley, PERB concluded that the Title IX coordinator was a management
employee in part because her authority to identify discriminatory practices was "district-wide."
In Oakland I, PERB concluded that psychologists were not management employees in part
because their authority was exercised "on a localized basis, not on a district-wide basis." It
thus appears that, for PERB' s purposes, "district" really does mean "district," and in this case
"district policies" means LAUSD policies.
As indicated above, it is not clear whether DISSs have significant responsibilities for
formulating LAUSD policies. The class description describes their job purpose as acting "in
accordance with ... Board rules ... and administrative regulations and procedures," not
as formulating those rules, regulations and procedures. Similarly, the class description
essential function as interpreting and implementing policies
LAUSD superintendent and the Board, not as formulating those policies.
66

Four DISSs testified at the hearing. The first (J. D. Gaydowski, the former director for
middle school programs) testified he understood he had no influence on district-wide policy.
At the time of the hearing, he had been a DISS for only four weeks, but his responsibilities had
been explained to him by a deputy superintendent and his LD superintendent.
The second DISS to testify (Kevin Baker) described his responsibilities as organizing
programs and personnel and facilitating communication. He did not mention LAUSD policy
formulation as part of his responsibilities. At the time he testified, his LD superintendent had
eliminated his DISS position and transferred him laterally to a DSS position. It is not apparent
why LAUSD would allow the LD superintendent to eliminate the DISS position if it had
significant district-wide policy responsibilities.
The third DISS to testify (Maynae Lew) testified in part that the "big District [LAUSD]
sets the policies" but quite often asks the DISSs for "input." The requested input might
concern the best ways to communicate and implement policies and the respective roles of
LAUSD and the LDs. Giving input on how to communicate and implement policies would not
appear to be the same as actually formulating policies. 11
The fourth DISS to testify, and the only one called as a witness by LAUSD, was
Bloch (Bloch). LAUSD relies heavily on Bloch's testimony in arguing that DISSs do have
significant responsibilities for formulating LAUSD policies.
As Bloch described it, her job has several responsibilities. 	One is to improve the
leadership of principals through professional development. A second is to oversee and
ua,.<nv the various areas of instructional services in her LD, interacting
11 The distinction between formulating policy and giving input will be discussed at
greater length with regard to the DSSs.

LAUSD administrators and ensuring "full implementation and roll out of whatever board
policy comes in each one of those areas." A third responsibility is to "raise issues at the
director of instruction meeting that I think are relevant to probe what's on the table in terms of
the conversation regarding instruction." A fourth responsibility is to design professional
development for teachers.
With regard to the third responsibility, Bloch testified in part:
Every other week we meet with Sue Shannon, who's the
Assistant Superintendent for elementary instruction, one of the
two assistant superintendents, and the eleven directors of
instruction. We meet every Friday in the morning. And we deal
with a multitude of instructional issues.
She shared the agenda of a recent DISS meeting, at which 25 minutes were to be spent on
"Summer School/Intersession Standards-Based Promotion," plus 30 minutes on "Mathematics
Plan," 15 minutes on "Graduation Requirements," 15 minutes on "Achieve Reading Program"
and 30 minutes on "Professional Development Evaluation."
With regard to the summer school issue, Bloch testified in part:
So we were making some suggestions, input,
recommendations of how best -- if the budget had to change the
way the model was set up, how best still to maintain the
instructional piece.
Bloch agreed with a characterization of the process as "brainstorming." She testified that the
effort was to find a "district-wide resolution," but she did not testify how or by whom the
results of the brainstorming would be fashioned into a district-wide resolution.
Bloch testified she had been more actively involved with the graduation requirements
rnsue, It had become apparent to her, working with schools in her LD, that there was
clarity on a lot of issues" in LAUSD' s graduation requirements. She found, however, that
68

there was "no established process in terms of these things [that] were festering out there." She
therefore created a process, putting together a focus group in her LD and inviting both a deputy
superintendent and an assistant superintendent to attend the meetings. After three meetings,
the deputy superintendent and the assistant superintendent agreed that policy changes were
necessary.
the recent DISS meeting, the assistant superintendent had shared an informative
being sent to the LAUSD superintendent and the Board, listing four clarifications and three
modifications of LAUSD graduation requirements policy. At the meeting, the assistant
superintendent acknowledged that Bloch's LD had "created the dialogue that raised these
issues," but in the informative she only stated that a "graduation committee has continued to
meet" to address changes in graduation requirements policy. Bloch testified that every item in
the informative had been "discussed fully" in her LD focus group, but she did not testify that
she or the focus group itself had produced any kind of policy document.
Bloch also testified about her ongoing involvement with a secondary literacy issue.
Testing in her LD had unearthed "major problems" with LAUSD's secondary literacy plan.
She testified she was unsure how or by whom the problems could be addressed:
It might come in an infonnative to the board. I'm not sure
who down there, you know, whether an assistant superintendent
can issue a statement that would rectify the problem or if it needs
to go to be board policy. It just depends if there needs to be a
statement that is consistent that stops this thing that is not good
for kids.
Bloch testified she had been discussing the issue with an assistant superintendent and was
putting it on the agenda for a future DISS meeting.
Bloch testified that her LD superintendent routinely gives her draft policy bulletins that
are distributed in advance of the LD superintendents' weekly meetings with the LAUSD
69

superintendent. Bloch and her team review the drafts and write suggestions and
recommendations on them for the LD superintendent to take to the meetings.
In one instance, Bloch's review of a draft bulletin caused her to get very involved with
a policy issue. She found there was an ambiguity in a draft bulletin on schools for advanced
studies, and she felt strongly that the ambiguity should be resolved in a particular way. 	The
topic was placed on the agenda for a DISS meeting, which Associate Superintendent
Alexander also attended. Alexander invited Bloch to a meeting in his office, where she
debated the issue with an LD superintendent who had an opposing view. Alexander then
invited Bloch and the LD superintendent to speak at a meeting of the LAUSD superintendent
and all the LD superintendents. The consensus of that meeting and the subsequent final
bulletin favored Bloch's position. Bloch acknowledged, however, that she did not know "how
it comes out that the bulletin occurs;" she was "not privy" to "what happens in that other
space."
Bloch testified that "nobody but the board sets policy" and that "impacting policy is the
only thing we are able to do in a significant way by bringing these issues." There can be no
doubt that Bloch has indeed had an impact on LAUSD policy.
I nonetheless conclude that LAUSD has not met its burden of proving that Bloch and
the other DISSs are management employees "in a position having significant responsibilities
for fonnulating [LAUSD] policies." As noted above, the DISS class description does not
indicate that DISSs have significant responsibilities for LAUSD policy formulation. 	Of the
eleven DISSs, four testified at the hearing, and of them only Bloch described a significant
LAUSD 	role. It appears that Bloch's role was exceptional rather than normal for
someone in the DISS position.
70

Bloch's own testimony indicates that her LAUSD policy role was out
When she found there were problems with LAUSD's graduation requirements policy, she
found there was no established process to address the problems, and she had to create a
process. When she found there were problems with LAUSD's secondary literacy plan, she was
unsure how or by whom the problems could be addressed. Even when she successfully
advocated for a clarification of LAUSD's policy on schools for advanced studies, she still did
not know by what process the revised policy bulletin was produced. While she is clearly an
effective policy advocate, Bloch is apparently outside the actual process of LAUSD policy
formulation, which takes place in "that other space" to which she is "not privy."
It is apparently true that the DISSs as a group discuss LAUSD policy issues at their
regular meetings. It does not appear, however, that any actual policy formulation occurs at
these meetings, where discussion of any one issue is apparently limited to 30 minutes or less.
At the recent meeting, the DISSs had seen an informative on graduation requirements, but it
had apparently been formulated at the assistant superintendent level. After the issue
concerning schools for advanced studies had been discussed at an earlier DISS meeting, the
policy debate actually occurred at the deputy superintendent level and then at the LAUSD and
LD superintendent level. There is thus no apparent reason to distinguish the present case from
Los Rios, in which financial aids coordinators were held not to be management employees
even though they participated on a regular basis in discussions where policy alternatives were
aired.
DISSs obviously do have some opportunity to have an impact on LAUSD
and Bloch has obviously made the most of that opportunity. I would hope that all LAUSD
employees who see a problem have some opportunity to have an impact on LAUSD policy.
71

That does not mean, however, that all such employees are management employees whose
positions have significant responsibilities for LAUSD policy formulation.
I also conclude that AALA's unfair practice charge is timely as to the DISSs, who were
listed as management employees for the first time on the Classification Plan of September 19,
2000. I further conclude, however, that AALA has not proved an unlawful unilateral change as
to the DISSs, whose positions were apparently created as new and vacant positions for which
candidates were recruited.
Director, School Services, Local District (DSS)
There is also a dispute about the DSSs, who also report directly to the LD
superintendents. On average, each LD has 4 DSSs, for a district-wide total of 44. Like the
DISS positions, the DSS positions were created as part of the reorganization of July 1, 2000,
and were listed as management employees for the first time on the Classification Plans of
September 19 and November 29, 2000.
A flyer dated May 10, 2000, described the DSS position as follows:
Assists the Local District Superintendent in the operation of a
designated administrative district and in developing and
implementing strategic plans and direct support for ensuring that
students achieve high academic standards in all pre K-12 schools
within such a district in accordance with applicable laws, Board
Rules, consent decrees and administrative regulations and
procedures. Evaluates school site principals.
The flyer thus did not specifically describe policy formulation as part of the job.
The DSS class description describes the job purpose as follows:
Assists the Local District Superintendent in the operation of a
designated local district and in developing and implementing
policies, strategic plans, support and programs for ensuring that
students achieve high academic standards in all pre K-12 schools
within such a district in accordance with applicable laws, Board
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Rules, consent decrees and administrative regulations and
procedures. Evaluates school site principals.
The job purpose is thus specifically described as including policy development at the LD level.
The class description describes seven essential functions:
1. 	Assists the Local District Superintendent in overseeing and
directing the activities of principals, ensuring compliance
with Board policies and the General Superintendent's
directives; advises principals regarding implementation of
programs and day-to-day personnel and operational concerns.
2. 	Assists in formulating policies and directing plans for
implementing, evaluating and improving the local district's
instructional program; develops goals, plans and
commitments for the instructional program that ensure that
students achieve high academic standards.
3. 	Assists in the administration of a program of personnel
services for local district employees; in the determination of
personnel needs collaboratively with principals; in
disciplinary and grievance resolutions; and in ensuring
compliance with all applicable policies and directives.
4. 	Assists in resolving complaints and concerns of teachers,
students and parents.
5. 	Establishes and administers a program of communication with
parents and the community regarding school operations;
promotes collaboration among stakeholders and increased
accountability for results; interacts effectively with advisory
councils; and ensures that all parent education involvement
activities promote and are aligned with district student
achievement goals.
6. 	Interprets and implements policies from the Office of the
General Superintendent and the Board of Education.
7. 	Evaluates the performance of subordinate personnel.
The second function is thus specifically described as including policy formulation at the LD
level. The two DSSs at the hearing who were asked testified that this description is accurate.
with the DISSs, I readily conclude that, consistent with their class description, the
DSSs have significant responsibilities for formulating LD policies. As previously indicated,
however, the real question is whether they have significant responsibilities for formulating
LAUSD policies.
73

Like the DISS class description, the DSS class description does not clearly indicate
significant responsibilities for formulating LAUSD policies. The class description describes
purpose as acting "in accordance with ... Board rules ... and administrative
regulations and procedures," not as formulating those rules, regulations and procedures.
Similarly, the class description describes the sixth essential function as interpreting and
implementing policies of the LAUSD superintendent and the Board, not as formulating those
policies.
Six DSSs testified at the hearing. The first (Bud Jacobs, the current director for high
school programs), who was a DSS for six months, described his responsibilities as follows:
I was working at that time with five high schools in the Harbor
area. I would meet with the principals, and did their Stulls [Stull
evaluations]. In other words, the Stull planning sheet. And I
would visit the schools to look at their programs. I would make
every effort to attend the athletic events, which were very
prominent in the Harbor area. It was the longest football season
I've ever endured. And we would collaborate as a secondary unit
back at the office on professional development. And my job was
to support the superintendent and his plan for improving
instruction in all of those -- in all the schools. But my specific
responsibilities were at the secondary, with the high schools.
He did not mention LAUSD policy formulation as part of his responsibilities.
The second DSS to testify (Kevin Baker, who had been laterally transferred from a
DISS position four-and-a-half months earlier) described his responsibilities as follows:
I provide support for the 11 principals that I supervise,
supporting them in the implementation of their instructional
program, working with their staffs, working with their
stakeholders, implementing the superintendent's strategic plan of
implementing the literacy program, math program, raising student
test scores, providing professional development for teachers.
He also did not mention LAUSD policy formulation as part of his responsibilities.
The third DSS to testify (Irma Good) described her responsibilities as follows:
74

The majority of the time was helping the schools
implement and monitor their instructional program to ensure
student achievement. That kind of to me summarizes what we do
all day every day, in different aspects of it. So a lot of it had to
do with operations, to make sure that the school had the resources
that they needed, and that's just following up to see if what
they're requesting was one, something they really did need, and
two, once that's established, you know, how to make sure that
they were getting those resources delivered to them, whether it
was training or orders, monitoring, you know. 	If they had a
problem with something they had ordered through Fiscal Services
or whatever, we'd have to follow up on that.
Dealing with parent complaints, if there were teacher
complaints. Doing step two's; when a teacher files a grievance
against a principal, then we were the next level of appeal for the
teacher with UTLA. Going to a lot of meetings to make sure that
we had the information as to what the District policies were and
what our role would be in implementing them and facilitating.
She did not mention policy formulation as part of her responsibilities. 	She did mention
monthly meetings with an assistant superintendent that all 44 DSSs could attend, but she
described the meetings as informational and non-mandatory. 	(If all DSSs had significant
responsibilities for LAUSD policy formulation, and if these meetings were for the purpose of
policy formulation, one might expect the meetings to be mandatory.)
The fourth DSS to testify, Larry Rubin (Rubin), described his responsibilities as
follows:
The day-to-day support as far as the instructional program
at the schools. I supervise the 11 principals that I have
responsibility for. 	If there are areas as far as dealing with parent
concerns, student concerns, community concerns, and we're the
first line of support for that school. We identify additional
resources that may help the school in their professional
development, in 	efforts to improve student achievement.
Like the three previous DSSs called to testify by AALA, he did not mention LAUSD policy
formulation as part of his responsibilities. Because of scheduling conflicts, he had attended

only one monthly DSS meeting. He recalled that the LAUSD superintendent had spoken at the
beginning
of
that meeting; he did not recall getting a chance to give input.
Rubin did mention occasions when he has given input on LAUSD policies. He
described DSSs as "fairly vocal, complaining about things that are just not working for our
schools." (The DSSs' "complaining" would seem to suggest that someone other than the DSSs
had formulated the policies in question.) On one occasion, an LAUSD policy on purchasing
textbooks had been changed after complaints
to
an assistant superintendent. On another
occasion, complaints about graduation requirements prompted a response from a
superintendent, which Rubin described as follows:
He said we brought up some very good points, he was
going to go back and look at it and see
if
we can prepare
something for the Board to see
if
they would have another look at
it.
Rubin did not know exactly what would happen next, but it did not appear that DSSs would be
involved in preparing "something for the Board."
Rubin also gives input on LAUSD policies at weekly meetings with his LD
superintendent. He testified in part:
There are several times where we have made recommendations or
suggestions to the [LD] superintendent and she has taken it back
to Personnel downtown, assistant superintendents, associate
superintendents. And we think things have changed and they go
back and forth.
Rubin could not recall specific examples
of
his suggestions at the LD level affecting LAUSD
policy.
The fifth DSS to testify, and the first to be called as a witness by LAUSD, was Lurline
Hemphill (Hemphill). She described her duties as follows:
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My duties would be working with principals and schools. I
supervise for the principals. I advise them. I inform them about
local district and large district policies, practices. We work
together to interpret state rules and regulations that might apply
to difficulties that problems that they're having with their
schools. 	I work with [LD superintendent] Dr. Castillo
to
formulate policies that affect our district. I work with a group
of
local district directors from all
of
the districts to get input to the
larger district policies, to hear what's going on in the bigger
picture.
Hemphill was thus the first DSS (and ultimately the only one) to testify specifically that an
LAUSD policy role is part
of
her responsibilities.
Hemphill regularly attends the monthly DSS meetings with the assistant superintendent.
By her account, the LAUSD superintendent often attends also, and a deputy superintendent is
almost always there
..
At these meetings, the DSSs may be asked for input on LAUSD policies.
As Hemphill testified in part:
They may say that they're developing a policy on intervention.
We will talk about how we think intervention should look, then
maybe the next meeting we'll see a draft bulletin and we'll give
input into that bulletin.
Hemphill explained the purpose
of
the DSSs' input as follows:
Well, I think a lot
of
times when we're at the meeting, I
mean, it's because we're such a large district, that we bring
forward information that maybe at the central level that they
don't have.
She further explained:
I would say
if
there's a policy that's already come out
from the District, I think the effort is to see how that policy is
really working when it goes down to the local districts.
At a recent meeting, the effort had been to "get a handle on our [the DSSs']
feasibility of having literacy coaches at the middle and high school levels.

According to Hemphill, draft LAUSD policies are quite often presented and discussed
at the DSS meetings. For example, the DSSs "had spent a long time talking about [a draft
policy 	how textbooks were going to be ordered." Hemphill explained:
Yeah, because the prior year a policy had just been given
from the big District. And the policy was that all textbook orders
were going to be inputted at the local district level rather than
from the school's. And after that experience, at many of the
directors' meetings which were held with the directors from the
11 local districts, we very vocally said that did not work, that we
wanted a change in the policy for the coming year, that the school
had to be the one to put in their textbook orders.
The change desired by the DSSs was ultimately made. 12
Like Rubin, Hemphill also gives input on LAUSD policies at weekly meetings with her
LD superintendent. She testified in part:
Many times during the Monday meetings with Dr.
Castillo, she will come back with a draft or she will discuss a
concept that's being put forward from [LAUSD superintendent]
Governor Romer or from the Office of Instruction, from the
deputy superintendents, and she will ask us for input.
Recently, Hemphill' s LD superintendent had asked for input on "prioritizing what [LAUSD]
Central Office [budget] cuts would be made." Hemphill understands that the LD
superintendent then takes such input back to meetings with the LAUSD superintendent.
On at least one occasion, Hemphill has had an unexpected LAUSD policy
own LD she developed a school budget template, to align school resources with specific
actions and research-based outcomes. She had not intended to share the template with other
LDs. While Hemphill was on vacation, however, her LD superintendent and fellow DSSs
made a formal presentation to the LAUSD and LD superintendents that included the template.
12 This appears to be the same policy change Rubin mentioned in his testimony.
78

When Hemphill returned from vacation, she understood that her template was going to be used
district-wide.
In her testimony, Hemphill mentioned one additional policy role. As a matter of
LAUSD policy, every elementary school is required to use one of three specified reading
programs. High-achieving schools, however, may ask for a waiver from this requirement, and
Hemphill is "the person who approves whether or not they get a waiver." She believes her
decisions can be appealed, but she does not know how. No other DSS testified to having this
role, which is not specifically mentioned in the DSS class description.
The sixth and final DSS to testify (the second and last DSS to be called as a witness by
LAUSD) was Corby Alsbrook (Alsbrook). Unlike the other five DSSs, Alsbrook did not give
a general description of his duties, but he did describe what his LD superintendent told him
when she offered him the position:
But, basically, as far as the responsibilities, she said that I would
be responsible for the achievement of [a group of] schools, the
operation, the running of, facilitating whatever it took to make
the schools run smoothly and be successful.
LAUSD policy formulation was not mentioned.
Alsbrook regularly attends the monthly DSS meetings with the assistant superintendent,
and he remembered the LAUSD superintendent attending three of eight such meetings. At the
most recent meeting, also attended by the COO, the LAUSD superintendent had asked the
DSSs for input on budget cuts and different uses for resources. Alsbrook further testified:
So he [the LAUSD superintendent] was explaining some
to the local district directors. And other times when I've
been at the meetings, when he's been there, sometimes he will
say things like I want to pick your brain, and get into issues, and
ask us for our input on whatever, and then --
79

Alsbrook did not elaborate or provide other examples from DSS meetings. He did testify,
however, that sometimes his LD superintendent would request input on LAUSD policy issues
(including central administration budget cuts) for her to take back to meetings with the
LAUSD superintendent.
Alsbrook himself had attended three meetings with the LAUSD superintendent, as an
acting LD superintendent when his own LD superintendent was unavailable. At one such
meeting, he expressed his opinion on a textbook issue, and the LD superintendents agreed with
him. Alsbrook did not know whether the decision was actually implemented.
Alsbrook had also attended a meeting at which he and other DSSs were told that the
school budget template should be used district-wide. He understood that the template was a
suggested tool but was not required. In his own LD, the template was "tweaked" to include an
additional column and to reflect the LD's own priorities for research-based outcomes.
LAUSD also called three LD superintendents to testify. The first, Richard Vladovic
(Vladovic ), described the functions
of
DSSs as follows:
They provide the instructional and administrative
leadership for that family
of
schools that report to them. They
interface with the various city councils because each
of
those
cities have special and unique needs.
So within district policy, they're allowed to deal with
some
of
the special needs such as at Carson has some unique
needs relative to safety and to the city's engagement and how we
use the schools and they use the schools. And some
of
their
needs.
So each one literally has this overall leadership
responsibility and -- to address the unique needs and also the
general needs that all
of
us have relative to student achievement
where the superintendent of the present district wants us to
place our emphasis.
He did not mention LAUSD policy formulation as a function of DSSs.
80

Vladovic also testified that he and his fellow LD superintendents meet weekly with the
LAUSD superintendent and that "we literally formulate policy within those meetings." He will
then "go back to my directors and get their input and I carry their preferences" back to the
LAUSD superintendent. Vladovic is sure that the LAUSD superintendent has considered such
input.
Vladovic testified that he receives draft bulletins from LAUSD's central administration.
He further testified:
So what I do is I run them off and give them to each
director, and say, hey, read them. If you see any changes that
need to be done, send them in.
The comments are sent directly to the appropriate central administrator.
With regard to the school budget template, Vladovic testified that "all of the directors"
met with the LAUSD superintendent and gave him input verbally, with the result that the
template was modified. Vladovic later heard three Board members say that "the template's a
good idea" that "needs to be modified ever so slightly."
The second LD superintendent to testify was Richard Alonzo (Alonzo). With regard to
secondary literacy policy, he testified in part as follows:
This program has taken some time to be developed with
input from different focus groups, from teachers, from principals,
from district directors, and the information then goes back to
central. Central then develops a policy which is approved by the
Board and adopted by the Board, and then it's presented to us.
With regard to the school budget template, he testified in part:
I believe that central made one. And we took it, and we
said, this we could really do a better job. And so working with
our own fiscal folks and working with the director, we simplified
it so that it would be more understandable and customized it to
Local District F.
81

Alonzo thus attributed the development of both the secondary literacy policy and the school
budget template to LAUSD's central administration, with DSSs (and others) giving input on
the former and adapting the latter.
The third and final LD superintendent to testify was Deborah Leidner (Leidner). 	She
testified that she and other LD superintendents had provided input to the LAUSD
superintendent on whether to mandate eighth grade algebra. When asked if she had relied on
her DSSs, she testified in part:
Absolutely. Because many of the decisions that are made
are made over a period of time, when I go back to my local
district, my Monday agendas, those issues are on my agenda.
And we talk about it. And I get input from my staff in order to
take back.
Leidner and her DSSs felt that eighth grade algebra should be mandated. She took that
recommendation to the LAUSD superintendent, and ultimately the Board agreed. When asked
how the decision was made, however, Leidner said it happened through a series of meetings
between LD superintendents and central LAUSD administrators over the course of many
months. She similarly testified that secondary literacy policy had been developed by "the
superintendents, along with central staff."
LAUSD also called the LAUSD superintendent to testify. With regard to secondary
literacy policy, he testified in part:
Everyone who has a director title at the local district level, we
called together and said, look, this is something that you have an
obligation to manage at the local level. We want you to be a part
of this policy formation.
And I remember that meeting very specifically. And we
would -- we would sit at tables and divide up in groups based
around districts, and say what is the learning that you would bring
to the whole group about what has occurred in your district.
82

He later described this as calling on the DSSs "to give us advice."
The LAUSD superintendent also testified about a meeting on budget strategy that he
and the DSSs (among others) attended. He testified in part:
The assignments to the directors were help us think this
one through and make it work. We were using draft materials
that day. 	Subsequent, there was a compilation of these -- of the
product of that day. It was a workshop-type meeting. And they
were put into another format and reviewed by local district
sup [erintendent] s and my staff and came back.
Now, that particular day if -- there may have been
assignments by the local district superintendents to directors, but
I would not have expected an assignment to come from me to
directors. That's not the chain of command. The chain of
command is the local district superintendents are the ones that
manage and relate to the directors under their organization.
He later testified it would have been "improper" for him to meet with DSSs individually on
budget strategy. He further testified:
I do not often meet with the directors. I rely on the district
sup[erintendent]s as my conduit.
He most often meets the DSSs in "a professional development session where we are all
together learning on a new subject."
I conclude that LAUSD has not met its burden of proving that the DSSs are
management employees "in a position having significant responsibilities for formulating
district policies." As noted above, the DSS class description does not indicate that DSSs have
significant responsibilities for LAUSD policy formulation. 	Of the 44 DSSs, six testified at the
hearing, and of them only Hemphill specifically testified that policy formulation and input are
Furthermore, even Hemphill testified that she works "to formulate
policies" for her LD, but that she works "to get input" into LAUSD policies.
83

It seems appropriate in this instance to give particular weight to the DSS class
description. That description purports to cover all 44 DSSs, while the testimony in this case
focuses on relatively few of them. 13 When LAUSD wrote the class description, it made it
explicitly clear that it expected the DSSs to participate in policy development and formulation
at the LD level. If LAUSD also expected DSSs to participate in policy development and
formulation at the LAUSD level, I would expect LAUSD to make that explicitly clear in the
class description. It did not.
1 would also expect the DSSs and their immediate supervisors, the LD superintendents,
to recognize that the DSSs had significant responsibilities for LAUSD policy, if indeed they
did. Four of the five DSSs who gave a general description of their duties, however, did not
mention LAUSD policy at all. The one LD superintendent (Vladovic) who described the
functions of DSSs also did not mention LAUSD policy.
Moreover, Hemphill' s distinction between formulating LD policies and giving "input"
into LAUSD policies cuts through virtually all the evidence on the role of DSSs in LAUSD
policy. Vladovic made the same distinction, testifying that he and his fellow LD
superintendents "literally formulate policy" in their meetings with the LAUSD superintendent,
while his DSSs only have "input" through him. Alonzo similarly testified that "Central"
developed secondary literacy policy with "input" from DSSs and others. Leidner testified that
the decision to mandate eighth grade algebra happened through a series of meetings between
LD superintendents and central LAUSD administrators, with DSS "input" through the LD
superintendents.
13 Even the testimony of the three LD superintendents would cover only about 12 of the
44 DSSs.
84

The distinction between formulating policies and giving "input" is a crucial one. Policy
formulation takes place inside the policymaking process, while "input" would seem to come
from outside of the process. Moreover, PERB has held that policy formulation "entails the
discretionary authority to develop or modify institutional goals and priorities." (Oakland II.)
PERB has made it clear that merely giving advice or making recommendations to those with
such authority is not policy formulation. 	(San Francisco; Lompoc.)
On some occasions, it appears that DSSs were able to give input only after the fact.
Both Rubin and Hemphill testified about DSSs complaining (successfully) about an LAUSD
policy on purchasing textbooks that did not work in the schools. Rubin also testified that he
complained to a deputy superintendent about an LAUSD graduation requirements policy. It is
unclear in that instance exactly what effect the complaint would have. It is clear in both
instances, however, that the DSSs did not have discretionary authority to modify or deviate
from the policies in question. 	(Oakland II; Ventura.) 14
It appears that the real role of the DSSs in LAUSD policy is to provide expert advice on
what policies will work or do work in the schools. As Hemphill explained, the DSSs "bring
forward information that maybe at the central level that they don't have." As she further
explained, "the effort is to see how [a] policy is really working when it goes down to the local
districts." Recently the effort had been to "get a handle on [the DSSs'] estimate" of the
feasibility of having literacy coaches at the middle and high school levels. Even the LAUSD
superintendent, who said he wanted DSSs to be a part of "policy formation" on secondary
asked the DSSs to "say what is the learning that you would bring to 	whole
14 Hemphill did testify that she approves waivers from the LAUSD policy requiring
elementary schools to use one of three specified reading programs. The extent of her authority
in this area is unclear, however, as is the extent to which other DSSs may have such authority.
85

group about what has occurred in your district." He later described this as calling on the DSSs
"to give us advice." Neither the DSSs' expertise nor their advice would be enough to make
management employees within the meaning of EERA section 3540. l (g). (San Francisco;
Lompoc.)
Hemphill's role in developing the school budget template, while remarkable, does not
change this analysis. First of all, her role (like Bloch's role as a DISS) appears to have been
exceptional rather than normal. Second, it appears that the template was more of a suggested
tool (as Alsbrook testified) than an actual district-wide policy. Finally, Hemphill herself was
clearly surprised that LAUSD had picked up on the template, which she had developed only
for her own LD. It therefore does not appear that Hemphill and the other DSSs are truly "in a
position having significant responsibilities for formulating district policies."
I also conclude that AALA's unfair practice is timely as to the DSSs, who were listed
as management employees on the Classification Plan of September 19, 2000. I further
conclude, however, that AALA has not proved an unlawful unilateral change as to the DSSs,
whose positions were apparently created as new and vacant positions for which candidates
were recruited.
REMEDY
EERA section 3541.S(c) gives PERB:
. . . the power to issue a decision and order directing an
offending party to cease and desist from the unfair practice and to
take such affirmative action, including but not limited to the
reinstatement of employees with or without back pay, as will
effectuate the policies of this chapter [EERA].
In 	and
(c) by unilaterally designating employees in two disputed classifications (director 	the
86

administrative academy and administrative coordinator for special education employment
operations) as management employees excluded from the certificated supervisors unit, without
exhausting PERB's unit modification procedures. It is therefore appropriate to direct LAUSD
to cease and desist from such conduct.
In California State Employees' Association v. Public Employment Relations Bd. (1996)
51 Cal.App.4th 923, 946 [50 Cal.Rptr.2d 488], the court stated in part:
Restoration of the status quo is the normal remedy for a
unilateral change in working conditions or terms of employment
without permitting bargaining members' exclusive representative
an opportunity to meet and confer over the decision and its
effects. (See, e.g. Oakland Unified School Dist. v. Public
Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1014-
1015, 175 Cal.Rptr. 1051.) This is usually accomplished by
requiring the employer to rescind the unilateral change and to
make employees "whole" from losses suffered as a result of the
unlawful unilateral change.
Such a remedy is neither necessary nor appropriate in the present case, however. The parties
have now exhausted (or will exhaust) PERB's unit modification procedures, and there is no
evidence that any employees have suffered losses in the meantime.
It is appropriate however, to direct LAUSD to post a notice incorporating the terms of
the order in this case. Posting of such a notice, signed by an authorized agent of LAUSD, will
provide employees with notice that LAUSD has acted in an unlawful manner, is being required
to cease and desist from this activity, and will comply with the order. It effectuates the
purposes of BERA that employees be informed both of the resolution of this controversy and
of LAUSD' s readiness to comply with the ordered remedy. 	(Placerville Union School District
(l 	PERB Decision No. 69.)
87

PROPOSED ORDER IN REPRESENTATION CASE NO. LA-UM-679-E
Based on the foregoing findings of fact and conclusions oflaw, and the entire record in
this case, it is hereby ordered that employees in the following disputed classifications are
management employees within the meaning of Government Code section 3540. l(g) and are
therefore excluded from the certificated supervisors unit:
Assistant Superintendent, Extended Day Programs
Administrator, Student Auxiliary Services
Director, Elementary/Reading/Standards-Based Promotion Programs
Director, Language Acquisition
Director, Mental Health Services
Director, Integrated Health Partnerships
Director, Pupil Services
Director, Psychological Services
Director, Specially Funded Programs, Compliance and Technical Support
Director, SBlX Programs
Administrator, Adult and Occupational Education Division
Administrative Coordinator, Legislation and Program Planning
Director, School Management Services
Administrator, Certificated Employment Operations
Administrative Coordinator, Special Education Employment Operations
Assistant Superintendent, Instructional Technology15
It is further ordered that employees in the following disputed classifications are not
management employees within the meaning of Government Code section 3540. l(g) and are
therefore not excluded from the certificated supervisors unit:
Director, Professional Development
Director, Administrative Academy
Director, High School Programs
Director, Middle School Programs
Administrative Coordinator, Child Development
Director, Nursing Services
Director, Instructional Support Services, Local District
Director, School Services, Local District
15 As previously noted, this conclusion applies to the current assistant superintendent
even when he was listed as a temporary adviser, MST, management.
88

PROPOSED ORDER IN UNFAIR PRACTICE CASE NO. LA-CE-4248-E
Based on the foregoing findings of fact and conclusions oflaw, and the entire record in
this case, it is found that the Los Angeles Unified School District (District) violated the
Educational Employment Relations Act (BERA or Act), Government Code section 3543.5(a),
(b) and (c ), by unilaterally designating employees in the following disputed classifications as
management employees excluded from the certificated supervisors unit:
Director, Administrative Academy
Administrative Coordinator, Special Education Employment Operations
All other unfair practice allegations are hereby dismissed.
Pursuant to BERA section 3541.5(c), it is hereby ordered that the District, its governing
board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally designating employees as management employees excluded
from the certificated supervisors unit.
2. 	Denying the Associated Administrators of Los Angeles (AALA) its right
to represent employees in the certificated supervisors unit.
3. 	Interfering with the right of employees in the certificated supervisors unit
to be represented by AALA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within ten (10) workdays of the service of a final decision in this matter,
post copies of the Notice attached hereto as an Appendix at all work locations where notices to
unit employees are customarily posted. The Notice must be signed by an authorized agent of
the District, indicating the District will comply with the terms of this Order. Such posting shall
89

be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure the Notice is not reduced in size, altered, defaced or covered with any other
material.
2. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the San Francisco Regional Director of the Public
Employment Relations Board, in accord with the regional director's instruction.
RIGHT TO APPEAL
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and these Proposed Orders shall become final unless a party files a statement of
exceptions with the Public Employment Relations Board (PERB or Board) itself within
20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any, relied upon for such exceptions.
Regs., 	8, sec. 32300.)
A document is considered "filed" when actually received before the close
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
Regs., 	8, secs. 32135(a) and 32130.)
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A document is also considered "filed" when received by facsimile transmission before
the close
of
business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements
of
California Code
of
Regulations, title
8,
section 32135(d), provided the filing party also places the original, together with the required
number
of
copies and proof
of
service, in the U.S. mail. 	(Cal. Code Regs., tit. 8, sec. 32135(b
),
(c) and (d); see also Cal. Code Regs., tit.
8,
secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
THOMAS
	J.
	.
LEN
Administrative	
Law	
Judge
91