Decision 0885E – San Diego Unified School District
LA-CE-1986
Decision Date: June 14, 1991
Decision Type: PERB Decision
Perc Vol: 15
Perc Index: 22103
Decision Headnotes
1101.06000 – Statutory and Equitable Tolling
Statutory tolling does not apply where no binding arbitration charges cannot be equitably tolled.
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Board analogizes to the test for unalleged violations to determine whether protected activity not described in the complaint may be used as the basis for unlawful discrimination; p. 39.
1103.04000 – Amendments
It is clear that a Board agent has the authority to amend a complaint to correct an error.
300.01000 – In General
Protected activity which occurs after the adverse action can not be used to establish a prima facie case.
300.05000 – Grievances
It is well-established that the filing of grievances and unfair practice charges are protected activities. The filing of a federal Equal Employment Opportunity Commission is not protected activity.
300.12000 – Insistence on Union Representation
Where the Board finds that charging party's belief that the performance evaluation meeting may have resulted in discipline to be a reasonable belief, the charging party's request for representation constitutes a protected activity.
408.04000 – Highly Unusual Circumstances
Employer confusion over whether evaluation was "scheduled" and other mixed messages constitute highly unusual circumstances.
501.01000 – In General; Elements of Prima Facie Case
Protected activity which occurs after the adverse action can not be used to establish a prima facie case.
504.02000 – Disparate Treatment
Although the employer's personnel practices may not have been exemplary, thereby raising the issue of disparate treatment, the evidence is insufficient to raise an inference that it was the employee's union activities that motivated the employer to take the action it took.
504.03000 – Departure from Past Practices or Procedures
No departure from established procedures where employee was repeatedly counseled, reprimanded and given ample opportunity to correct behavior; p. 73.
102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts
Board does not enforce the Education Code, thus remedy deleting tainted documents from file enforceable.
504.04000 – Timing of Action
Timing not demonstrated where timing of adverse action not linked to protected conduct - 4 months elapsed between them; p. 71.
505.03000 – Misconduct
The record clearly demonstrates that the charging party would have been dismissed regardless of whether she had engaged in protected activities because the employee had engaged nine categories of specified acts of misconduct, rudeness, and insubordination. Thus, the record solidly established that the charging party would not have been retained, regardless of her protected activity.
1101.03000 – Computation of Six-Month Period
The statute of limitations does not preclude consideration of evidence of events occurring prior to the six-month time period where such evidence sheds light on the alleged violation. Requests for representation, occurring prior to the six-month period, are intertwined with the termination decision, and may be considered as background to charging party's temination; p. 38.
1105.12000 – Record or Testimony in Other Proceedings or Before Other Administrative Agencies
ALJ not bound to accept Merit System hearing officer's findings and conclusions where collateral estoppel does not apply; p. 74 and 75.
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions
The Board concluded that the ALJ did err in finding sufficient proof of unlawful motive.
1205.08000 – Expunging Employee Personnel Files
Board does not enforce the Education Code, thus remedy deleting tainted documents from file unenforceable.
1405.02000 – Type or Nature of Prior Proceeding
Merit System Hearing Officer's decision not given collateral estoppel where issue before the Board was unlawful discrimination and neither the transcript of the merit system proceeding nor the decision of the Merit System Hearing Officer reflect that the issue of retaliation for protected activities was fully litigated at that hearing. Also, since the ambiguity of the rules of the merit system in issue, as to whether the defense of retaliation for EERA protected activities COULD be raised in a dismissal proceeding, supports a conclusion that collateral estoppel should not apply to bar litigation of that issue before PERB on the ground it COULD have been raised; p. 40. Board notes that a verbatim record of the proceedings is a factor in determining the "judicial character" of the prior proceeding.
1500.02000 – Education Code Sections Considered by PERB (By Number)
Section 44031 - The ALJ has no authority to order compliance with section 44031. Thus, the ALJ's order requiring the District to delete allegedly tainted documents from employee's personnel file is unenforceable.
1503.02000 – Regulations Considered (By Number)
PERB Regulation 32640 expressly allows the Board to "disregard any error or defect in the complaint that does not substantially affect the rights of the parties." Thus, where the amended complaint merely reflects the allegations in the original unfair practice charge, it is consistent with this regulation and such an amendment does not substantially affect the rights of the parties. PERB Regulation 32647 and 32648, governing the amending of a complaint before and during a hearing, require the Board agent, in determining whether an amendment is appropriate, to consider the possibility of prejudice to the respondent. Since the amended complaint, issued sua sponte, reflects the allegations in the original unfair practice charge, the Board finds that there is no prejudice to the District (respondent). (respondent).