Decision A488E – Los Angeles Unified School District

If a compliance investigation is conducted and a written administrative decision issued, it may be appealed to the Board. (p. 8, fn. 8.)

Compliance proceedings are governed by PERB Regulation 32980, subdivision (a), which provides in relevant part that “[t]he General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter.” This provision grants the Office of the General Counsel considerable discretion to determine the most effective method for ensuring compliance with a Board order. (p. 9.)

Compliance may be determined based solely on documents submitted to Office of the General Counsel. In some instances, an evidentiary hearing is necessary to resolve disputed factual issues. When it is unclear whether a hearing is necessary, an Order to Show Cause may be used to determine if there are material facts in dispute and whether or not there is sufficient evidence to decide a disputed matter without convening an evidentiary hearing. (p. 9.)

In compliance proceedings, the respondent has the burden to prove that it complied with the Board’s order. In the context of physical mail, the Board has adopted the generally accepted rebuttable presumption that documents correctly addressed and properly mailed were received by the addressee. The Board found it appropriate to adopt a similar rebuttable presumption for electronic mail. The employer submitted statements based on personal knowledge under penalty of perjury that it e-mailed the Notice to all certificated bargaining unit members on two occasions, thereby creating a rebuttable presumption that it did so. (p. 10.)

To investigate a claim that some bargaining unit members did not receive a Notice sent by e-mail, Office of the General Counsel issued an Order to Show Cause to determine whether there was a material factual dispute that necessitated an evidentiary hearing. Office of the General Counsel directed the charging party to provide declarations based on personal knowledge under penalty of perjury showing that any bargaining unit member did not receive the e-mail Notice. The charging party declined to provide such declarations, citing concerns that the declarants would face retaliation from the employer. In the absence of any countervailing evidence, Office of the General Counsel correctly relied on the employer’s unrebutted evidence to conclude that it had e-mailed the Notice to all bargaining unit members, thereby complying with the Board’s electronic notice posting order. (p. 10.)

The names of any individuals claiming they did not receive the employer’s e-mail notices were relevant and necessary to determine the veracity of their statements. Indeed, under these circumstances a declaration that did not identify the declarant would have questionable evidentiary value, as it would not allow the employer or PERB to determine whether, in fact, the e-mail had been sent to the declarant or whether some transmission error had prevented the declarant from receiving it. The unsupported speculation that the employer might retaliate against an employee who submitted a declaration is not a substitute for actual evidence that a bargaining unit member did not receive the employer’s e-mail notices. Because the charging party declined to produce declarations of employees who allegedly did not receive the e-mail Notice, there was no material factual dispute over whether the employer e-mailed the Notice to the entire bargaining unit. Accordingly, Office of the General Counsel correctly determined that the employer complied with the Board’s electronic notice posting order. (pp. 9-11.)

In compliance proceedings, the respondent has the burden to prove that it complied with the Board’s order. In the context of physical mail, the Board has adopted the generally accepted rebuttable presumption that documents correctly addressed and properly mailed were received by the addressee. The Board found it appropriate to adopt a similar rebuttable presumption for electronic mail. The employer submitted statements based on personal knowledge under penalty of perjury that it e-mailed the Notice to all certificated bargaining unit members on two occasions, thereby creating a rebuttable presumption that it did so. (p. 10.)

To investigate a claim that some bargaining unit members did not receive a Notice sent by e-mail, Office of the General Counsel issued an Order to Show Cause to determine whether there was a material factual dispute that necessitated an evidentiary hearing. Office of the General Counsel directed the charging party to provide declarations based on personal knowledge under penalty of perjury showing that any bargaining unit member did not receive the e-mail Notice. The charging party declined to provide such declarations, citing concerns that the declarants would face retaliation from the employer. In the absence of any countervailing evidence, Office of the General Counsel correctly relied on the employer’s unrebutted evidence to conclude that it had e-mailed the Notice to all bargaining unit members, thereby complying with the Board’s electronic notice posting order. (p. 10.)

The names of any individuals claiming they did not receive the employer’s e-mail notices were relevant and necessary to determine the veracity of their statements. Indeed, under these circumstances a declaration that did not identify the declarant would have questionable evidentiary value, as it would not allow the employer or PERB to determine whether, in fact, the e-mail had been sent to the declarant or whether some transmission error had prevented the declarant from receiving it. The unsupported speculation that the employer might retaliate against an employee who submitted a declaration is not a substitute for actual evidence that a bargaining unit member did not receive the employer’s e-mail notices. Because the charging party declined to produce declarations of employees who allegedly did not receive the e-mail Notice, there was no material factual dispute over whether the employer e-mailed the Notice to the entire bargaining unit. Accordingly, Office of the General Counsel correctly determined that the employer complied with the Board’s electronic notice posting order. (pp. 9-11.)

In their appeal, the charging party argued that the declarants’ names should be redacted to prevent the employer from retaliating against the declarants, citing PERB Regulation 32125 in support of this contention. But that regulation governs filing confidential information with PERB, such as social security numbers, birthdates, a minor’s identity, and financial account information. The names of potential witnesses in a compliance hearing do not fall under any of those criteria. Also, as identified in subdivision (b), a caveat to redacting sensitive information is that it is “not relevant to resolution of any matter before PERB.” (pp. 9-10.)

Compliance proceedings are governed by PERB Regulation 32980, subdivision (a), which provides in relevant part that “[t]he General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter.” This provision grants the Office of the General Counsel considerable discretion to determine the most effective method for ensuring compliance with a Board order. (p. 9.)