Los Angeles Unified School District (Watts) (PERB 0852E)

STATE 	OP 	CALIFORNIA
DECISION OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOWARD O. 	WATTS,
Complainant,
v.
LOS 	ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-PN-112
PERB Decision No. 852
November 28, 	1990
Appearance: 	Howard O. 	Watts, 	on his own behalf.
Before Hesse, 	Chairperson; 	Camilli and Cunningham, 	Members.
DECISION
CUNNINGHAM, 	Member: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on an appeal 	filed
by Howard 0. 	Watts 	(Watts) 	to an administrative determination
(attached) 	by a PERB regional director.1 The regional director
dismissed 	the 	complaint 	filed by Watts 	against 	the 	Los 	Angeles
Unified 	School 	District 	(District) 	which alleged that 	the
1 PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 	et 	seq. 	Regulation 32925 	states:
Within 20 	days 	of 	the date of 	service
of 	a dismissal 	made pursuant to 	section
32920(b)(8) 	or a determination made pursuant
to 	section 32920(b)(10), 	any party adversely
affected by the 	ruling may appeal 	to 	the
Board itself. 	The appeal 	shall be 	filed
in writing with the 	Board 	itself 	in the
headquarters office, 	and 	shall be 	signed
by the appealing party or its 	agent. 	The
appealing party 	shall 	serve 	the 	appeal 	and
all 	supporting documents 	upon all 	other
parties. 	Within 20 days of service, 	each
other party may 	file with 	the 	Board 	itself
an opposition to the appeal.
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District 	violated 	the 	Educational 	Employment 	Relations 	Act 	(EERA)
section 3547 (a) 	and 	(b)2 by allowing the Los Angeles City and
County Employees 	Union Local 	99, 	Service Employees 	International
Union 	(Local 	99) 	to present 	initial proposals before 	it had
been recognized as 	the 	exclusive 	representative 	of 	Unit F 	for
collective 	bargaining purposes. 	We have 	reviewed the dismissal
and, 	finding it free of prejudicial error, 	adopt 	it as 	the
decision of 	the 	Board 	itself 	consistent with 	the 	discussion
below.
FACTUAL 	SUMMARY
The 	facts 	are 	accurately 	stated 	in the 	regional 	director's
administrative determination; 	however, 	we will briefly 	summarize
relevant events. 	On January 	16, 	1990,3 District Superintendent
Leonard 	Britton presented 	to 	the 	District's 	Committee 	of 	the
Whole his 	recommendation that 	the 	District 	adopt 	a Voluntary
2EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein are
to the Government Code. 	EERA section 3547(a) 	and 	(b) 	states:
(a) 	All 	initial proposals 	of 	exclusive
representatives 	and of 	public 	school
employers, 	which relate to matters within the
scope of representation, 	shall be presented
at 	a public 	meeting of 	the public 	school
employer 	and 	thereafter 	shall 	be public
records.
(b) 	Meeting and negotiating 	shall not take
place on any proposal 	until 	a 	reasonable 	time
has 	elapsed after 	the 	submission of 	the
proposal 	to 	enable 	the public 	to become
informed 	and 	the public 	has 	the 	opportunity
to 	express 	itself 	regarding the proposal 	at 	a
meeting of 	the public 	school 	employer.
3Unless 	otherwise noted, 	all dates 	refer to 	1990.
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Conditional 	Recognition Agreement with Local 	99 	for
representation of Unit F, 	a unit consisting of teachers'
assistants. 	On January 22, 	the District granted conditional,
voluntary recognition to 	Local 	99 	as 	exclusive 	representative
of 	Unit 	F. 	This 	grant 	of 	recognition was 	based on evidence
that Local 	99 possessed a 	showing of majority 	support, 	and
was 	expressly 	contingent 	upon 	the 	District 	receiving written
notification from PERB, 	by June 	30, 	that a majority of the
employees 	in Unit F 	supported Local 	99 	as 	their exclusive
representative. 	An 	initial proposal 	for bargaining was 	presented
by 	Local 	99 	at the 	January 	22 	District Board of 	Education
meeting. 	Public 	comment 	occurred on Local 	99's 	proposal 	on
January 	29, 	and again on February 	5. 	Subsequently, 	on May 	10,
the 	regional 	director of 	PERB verified that Local 	99 	had
submitted 	sufficient 	evidence 	of 	majority 	support.
The 	regional 	director determined 	that 	the 	issue 	raised
in Watts' 	complaint was whether the District violated public
notice requirements 	in allowing 	sunshining of 	the proposal 	of
Local 	99 	prior to 	recognition of 	that 	employee 	organization
by 	PERB. 	Noting 	that the 	facts 	stated above did not 	support 	a
finding that the District violated section 3547(a) 	or 	(b), 	the
regional 	director 	found 	that 	the 	complaint 	also 	raised 	the 	issue
of whether Local 	99 was properly recognized by the 	District. 	She
determined 	that 	the 	recognition portion of 	the 	complaint 	did 	not
fall within the purview of 	EERA's 	public 	notice provisions.
w
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Accordingly, 	the 	complaint was 	dismissed 	for failure to 	state 	a
violation of 	section 	3547.
DISCUSSION
Watts 	raises 	two objections 	to the 	administrative
determination of 	the regional director, 	and argues 	that 	the
regional 	director 	erred 	in dismissing his 	complaint. 	The 	first
issue 	is whether the procedure 	followed by 	the 	District 	for 	the
sunshining of 	Local 	99's proposals 	demonstrates 	a violation of
section 	3547. 	Second, 	Watts 	apparently argues 	that allowing an
employee organization to present an initial proposal, 	prior to
its 	recognition as 	an exclusive bargaining agent, 	violates
section 3547.
The 	regional 	director 	correctly 	determined 	that 	the 	District
complied with both 	the 	spirit 	and 	substance 	of 	section 	3547(a)
and 	(b). 	Local 	99's 	initial proposal was presented at a public
meeting, 	and a reasonable time elapsed for public 	comment, 	in
this 	case, 	approximately two weeks. 	(See Los Angeles 	Unified
School District 	(1987) 	PERB Order No. 	Ad-162.)
Watts 	next argues 	that the very act of 	allowing Local 	99
to present 	an 	initial proposal prior to 	its 	compliance with
recognition requirements 	in 	section 3544 	et 	seq. 	violates 	section
3547. 	As 	stated by the regional director, 	the intent of the
public 	notice provision of 	section 	3547 	is 	to 	inform the public
on 	issues 	to 	be 	negotiated 	and 	to 	afford 	a 	full 	opportunity 	for
public 	comment. 	The procedure 	followed here by the District, 	in
allowing Local 	99 	to present 	an 	initial proposal 	for public
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comment 	at a District meeting, 	is 	entirely consistent with the
goals 	and 	intent of 	section 3547.
Furthermore, 	allowing Local 	99 to present an initial
proposal 	for public 	comment does 	not violate the 	express 	language
of 	section 3547. 	Section 3547 	requires, 	"All 	initial proposals
of exclusive representatives 	. 	. 	. 	shall be presented at a public
meeting of 	the public 	school 	employer." 	(Emphasis 	added.) 	Use
of 	the word 	"shall" 	in a 	statute normally 	imports 	that 	its
provisions are mandatory in nature. 	(Lori Doyle, 	et al. 	v. 	Board
of Supervisors of Costa County, 	et al. 	(1988) 	197 Cal.App.3d
1358, 	1364 	[243 Cal.Rptr. 	572] 	review den. Apr. 	21, 	1988,
211 	Cal.App.3d 	379.) 	This 	mandatory 	language 	is 	directed 	at
exclusive representatives, 	which Local 	99 	apparently was 	not
at 	the 	time 	of 	the presentation of 	the 	subject proposals.4 A
recognized 	rule 	of 	statutory 	construction 	is 	that 	the 	expression
of 	certain things 	in a 	statute 	necessarily 	involves 	exclusion of
other things not expressed. 	(Anne T. 	Henderson, 	et al. 	v. 	Mann
Theatres Corporation of California 	(1976) 	65 Cal.App.3d 397, 	403
[135 Cal.Rptr. 	266] 	cert. 	den. 	434 U.S. 	825.) 	Accordingly, 	a
public 	school 	employer 	is 	not 	mandated to 	comply with the
4 As 	stated by the regional director, 	the propriety of 	the
District's 	recognition of 	Local 	99 	cannot be addressed via 	the
filing of 	a public 	notice complaint. 	We also note that
resolution of 	this 	issue 	is 	not necessary to determine whether 	a
violation of 	section 3547 	occurred based on these 	facts. 	If
Local 	99 was 	an exclusive representative 	at the time of 	the
presentation, 	all notice requirements were 	satisfied. 	If,
conversely, 	Local 	99 was 	not an exclusive representative 	at 	the
time of the presentation of the initial proposal, 	as discussed
below, 	no violation of 	3547 	occurred.
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provisions 	of 	section 	3547 	in relation to the 	initial proposals
of 	employee 	organizations 	not 	recognized 	as 	exclusive
representatives. 	Conversely, 	there 	is 	no 	language 	in section
3547 	which prohibits 	a public 	school 	employer 	from allowing 	the
initial 	proposals 	of 	employee 	organizations 	not 	recognized 	as
exclusive 	representatives 	to 	be presented 	at 	its 	public 	meetings
As 	the 	District's 	actions 	in allowing the presentation of 	Local
99's 	proposals 	do not 	conflict with 	either the 	intent 	or express
language of 	section 3547, 	the regional director properly
dismissed this 	complaint.
ORDER
The complaint 	in Case No. 	LA-PN-112 	is hereby DISMISSED
WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
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