No Dismissal Of Allegation Unless In Warning Letter

Lake Elsinore Unified School District (2018) PERB Decision No. 2548 (Issued on 2/2/18)

This case involved an unfair practice charge that alleged various forms of retaliation. After being amended three times, and a warning letter being issued, the Board agent dismissed the charge. On appeal, the Board reversed the dismissal for further consideration by the Office of the General Counsel. Specifically, the Board held that the warning letter and dismissal did not consider an alternative theory of retaliation advanced by the charging party.

Board held that,

[O]ur Regulations generally prohibit dismissal of any allegation in a charge without notice to the charging party of any deficiencies. [Citations omitted] Although the District’s position statement argued that the charge was untimely and that, even if timely, there could be no logical nexus between Edwards’ protected activity in 2015 and an adverse action occurring in 2007-2008, these points were not mentioned or addressed in the warning letter. Consequently, even if we agreed with the District on these points, because they were not included in a warning letter, they cannot be used to justify dismissal of the charge in the current posture of this case. We therefore vacate the dismissal and remand the matter to the Office of the General Counsel for further proceedings.

Comments:

I think the Board’s view of its regulations on issuing warning letters is too strict. The reality is that many times an unfair practice charge is written as a “narrative” and the Board agent and respondent are forced to guess at the specific allegations. This is especially true with pro per litigants. Here, the Board agent considered several allegations of retaliation, which was clearly the crux of the charge. The fact that the Board agent did not discuss every possible theory of retaliation in the warning letter, in my opinion, should not require reversal, even under PERB Regulation 32620(d).
As part of PERB’s efficiency project, many representatives of both management and labor complained about the current practice of issuing warning letters which takes a tremendous amount of time to write. Many representatives favor a simple phone conversation with the Board agent or some other alternative. This decision appears to confirm that any change to the current system will require changing PERB’s regulations. In my opinion that change should happen sooner than later.