Compton Unified School District (PERB 2016E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TONY LYNN HICKS,
Charging Party, Case No. LA-CE-5047-E
Vv. PERB Decision No. 2016
COMPTON UNIFIED SCHOOL DISTRICT, April 1, 2009
Respondent.

| Appearance: Tony Lynn Hicks, on his own behalf.
Before Rystrom, Chair; Neuwald and Wesley, Members.
DECISION

WESLEY, Member: This case is before the Public Employment Relations Board
(Board) on appeal by Tony Lynn Hicks (Hicks) of a Board agent’s dismissal (attached) of his
unfair practice charge. The charge alleged that the Compton Unified School District violated
the Educational Employment Relations Act (EERA)' by retaliating against Hicks when it
revised his seniority status. The Board agent dismissed the charge as untimely filed.

The Board has reviewed the entire record in this matter, including the original and

amended unfair practice charge, the Board agent’s warning and dismissal letters, and Hicks’

appeal. Based on this review, the Board finds the Board agent’s warning and dismissal letters

to be a correct statement of the law and well reasoned, and therefore adopts them as the

decision of the Board itself.

' EERA is codified at Government Code section 3540 et seq.

ORDER
The unfair practice charge in Case No. LA-CE-5047-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Rystrom and Member Neuwald joined in this Decision.
2

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor	
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PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-3008
Fax: (213) 736-4901
September 13, 2007
Tony Lynn Hicks
Re: 	Tony Lynn Hicks
v.
Compton Unified School District
Unfair Practice Charge No. LA-CE-5047-E
DISMISSAL LETTER
Dear Mr. Hicks:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 15, 2007. Tony Lynn Hicks (Hicks) alleges that the
Compton Unified School District (District) violated the Educational Employment Relations
Act (EERA)1 by reducing a seniority credit on an examination for the position of Parent
Involvement Coordinator (PIC).
I informed you in my attached letter dated August 20, 2007, that the above-referenced charge
did not state a prima facie case. You were advised that, if there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge.· You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to August 27, 2007, the charge would be dismissed.
You contacted me on August 27, 2007 to state that you had received the warning letter on
August 24, 2007 and needed an extension of time to respond. 	I granted your request, and you
timely filed an amended charge on September 4, 2007. For the reasons that follow, the
amended charge fails to correct the deficiencies stated in the August 20, 2007 warning letter.
You state in the amended charge that while it is true that the allegations in the instant charge
are related to another unfair practice charge2 currently on appeal to the Board, you made
reference to that charge to demonstrate the history of the District's unfair labor practices
against you. You also discuss PERB 's role in investigating unfair labor practices, the intention
of the legislature in creating PERB in order to protect the rights of employees and employers
under EERA, and the remedial powers of the Board. You allege that the current charge is
differentiated from LA-CE-4900-E, because in the previous charge you had not yet applied for
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 Unfair Practice Charge No. LA-CE-4900-E.

LA-CE-5047-E
September 13, 2007
Page 2
a promotional position, and consequently had not been denied your seniority status as of your
date of hire in the District in 1997.
The crux of the instant charge rests upon the District's adjusted assignment of seniority rank
for the position of Parent Involvement Coordinator (PIC) to 2003. As stated in the August 20,
2007 warning letter, the issue of adjusted seniority rank has been known to you since 2003,
more than two years prior to the filing of Charge No. LA-CE-4900-E. That is the reason that
allegations related to the issue of adjusted seniority rank were dismissed as untimely in the
previous charge. When you applied for a promotional position in 2006, you were first issued
examination results that reflected your seniority rank as that of your original hire date in 1997.
You received corrected examination results in August 2006 that showed your seniority rank as
if you had been hired in 2003. The District claimed that the earlier examination results were in
error. This issue of adjusted seniority rank is currently on appeal to the Board under Charge
No. LA-CE-4900-E. Although you had not yet applied for the promotional position when you
filed the previous unfair practice charge in 2005, the underlying issue of adjusted seniority
rank was addressed and dismissed in that charge. Accordingly, a final determination by the
Board on that issue is forthcoming.
You raise the issue in the amended charge that PERB has never conducted a comprehensive
investigation into the issue of a group of employees, including yourself, being labeled as
exempt employees and therefore being excluded from union membership. You state that
because of this action by the District, you and the other affected employees were unable to
avail yourself of legal representation by the union and had to learn the law on your own, which
is why the previous charge was filed beyond the time limits set forth in the statute of
limitations. 	However, the Board has long held that the six-month period commences on the
date that conduct constituting an unfair labor practice is discovered, rather than the date of
discovery of the legal significance of that conduct. (Empire Union School District (2004)
PERB Decision No. 1650.) Furthermore, these issues were thoroughly addressed by PERB in
the dismissal of Charge No. LA-CE-4900-E. Therefore, the instant charge fails to state a
prima facie case and must be dismissed.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close of business
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-5047-E
September 13, 2007
Page 3
(
together with a Facsimile Transmission Cover Sheet which meets the requirements
of
Regulation 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. (Regulations 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. 	(Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.

LA-CE-5047-E
September 13, 2007
Page4
Sincerely,
TAMI R. BOGERT
General Counsel
By_----------------------------
V alerie Racho
Regional Attorney
Attachment
cc: Dr. Jesse Gonzales, Superintendent

ST~TE OF CALIFORNIA 	ARNOLDSCHWARZENEGGER,Governor	(-- 	(~
PUBLIC EMPLOYMENT.=='=RE=L=A=T=IO=N=S=B=O=A=RD=====-==============
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-3008
Fax: (213) 736-4901
August 20, 2007
Tony Lynn Hicks
Re: 	Tony Lynn Hicks v. Compton Unified School District
Unfair Practice Charge No. LA-CE-5047-E
WARNING LETTER
Dear Mr. Hicks:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 15, 2007. Tony Lynn Hicks (Hicks) alleges that the
Compton Unified School District (District) violated the Educational Employment Relations
Act (EERA)1 by reducing a seniority credit on an examination for the position of Parent
Involvement Coordinator (PIC).
Most of the allegations in the above-referenced charge· are identical to those dismissed in
PERB Case Number LA-CE-4900-E, currently on appeal to the Board.2 Although the instant
charge alleges that on August 23, 2006,3 Hicks received a "Corrected Copy" of examination
results which changed his seniority rank from his date of hire in 1997 to a date in 2003, the
issue of seniority rank was previously addressed in LA-CE-4900-E. A warning letter dated
November 7, 2005 said the following:
The District uses a seniority system that determines employment
conditions such as salary, benefits, and paid time off; the longer
an individual is employed continuously by the District, the more
benefits he or she is entitled to. After the PIS employees were
rehired into the CRS class, the District assigned them a seniority
date based on their hire date as provisional employees, late 2003.
The seniority of former CRA employees was calculated from the
date they were originally hired into the CRA class.
'
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 Appeal filed on January 17, 2006. A request for injunctive relief was filed
concurrently with the unfair practice charge on October 21, 2005. The injunctive relief request
was denied by the Board on November 1, 2005.
3 LA-CE-4900-E was dismissed on December 27, 2005.

LA-CE-5047-E
August 20, 2007
Page2
The
November 7, 2005 warning letter further stated that any allegation regarding the adjusted
seniority rank was untimely because it had been known to the Charging Party since 2003, more
than two years before that charge was filed. 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
.)
It was found
that no exception to the statute
of
limitations applied to the circumstances
of
the charge. The
allegation regarding adjusted seniority rank was ultimately dismissed, along with the
remaining allegations in the charge. Therefore, the issue of adjusted seniority rank has been
known to Hicks since at least 2003. The corrected copy of examination results received in
August 2006 with the adjusted seniority rank was consistent with the District's prior actions
regarding that issue, and therefore, any allegation of wrongdoing connected to that conduct
is
untimely.
Additionally, the instant charge makes reference to Case Number LA-CE-4900-E and
summarizes the allegations in that charge. Then, under the heading "Violation(s)" the instant
charge quotes the language of Government Code Section 3543.S(a). However, the instant
charge presents no new evidence of employer discrimination beyond the previously dismissed
allegations in LA-CE-4900-E.
The only new allegation in the instant charge is that the District made a mistake during the
administration
of
the PIC examination under a personnel commission rule. However, PERB' s
jurisdiction is limited to the determination
of
unfair labor practices arising under EERA and
other public sector labor statutes. (California School Employees Association, Chapter 245
(Waymire) (2001) PERB Decision No. 1448.) To the extent that the charge alleges a violation
of
any statute or policy other than EERA, PERB is without authority to make a determination
on such actions. (See Antelope Valley College Federation
of
Teachers (Stryker) (2004) PERB
Decision No. 1624.)
For these reasons the charge, as presently written, does not state a prima facie case.
	If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before August 27, 2007, I shall dismiss your charge.
If you have any questions, please call me at (213) 736-3008.

LA-CE-5047-E fo
August 20, 2007
Page 3

Sincerely,

Valerie Racho
Regional Attorney

VR