Los Angeles Unified School District (Service Employees International Union Local 99/Members for Union Democracy) (PERB A232E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS ANGELES UNIFIED SCHOOL DISTRICT
Employer,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL #99,
Exclusive Representative,
and
MEMBERS FOR UNION DEMOCRACY,
Petitioner.
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Case No. LA-S-115
Administrative Appeal
PERB Order No. Ad-232
May 5, 1992
Appearances: Victor Wightman, on behalf of Members for Union
Democracy; 0 1 Melveny and Myers by Pamela D. Samuels, Attorney,
for Los Angeles Unified School District.
Before Hesse, Chairperson, Camilli and Carlyle, Members.
DECISION
CAMILLI, Member: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by Victor Wightman on
behalf of the Members for Union Democracy (Petitioner or Members1
from a Board agent's administrative determination that both the
Los Angeles Unified School District (District) and the Service
Employees International Union, Local #99 (SEIU), be allowed to
participate in this matter.
Procedural Background
On September 9, 1991, the Members filed a severance petition
with the Board, seeking to sever a unit of bus drivers from a
unit for which SEIU is the current exclusive representative in

the 	District. 	On 	September 	19, 	1991, 	the 	Regional 	Director 	for
the 	Los 	Angeles 	Regional 	Office 	of 	PERB 	sent 	a 	letter 	to 	both 	the
District 	and 	SEID 	requesting 	each 	to 	confirm 	or 	refute
information 	contained 	in 	the 	severance 	petition 	by 	written
statement 	within 	20 	days 	of 	service 	of 	the 	letter. 	The 	letter
goes-on 	to 	state 	that 	each 	may 	file 	a 	response 	under 	PERB
Regulation 	section 	33710 1 within 	20 	days 	of 	service 	of 	the
request. 	The 	letter 	further 	adds 	that 	if 	no 	opposing 	statement
is 	filed 	by 	SEIU, 	it 	will 	have 	waived 	its 	right 	to 	oppose 	the
request 	and 	the 	other 	parties 	may 	proceed with 	the 	unit
determination 	process.
The 	responses 	filed 	by 	both 	the 	District 	and 	SEID 	objecting
to 	the 	petition were 	filed 	within 	20 	days 	from 	the 	date 	of
service 	of 	the 	September 	19, 	1991, 	letter. 	On 	November 	14, 	1991,
1PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq. 	PERB 	Regulation
33710 	states, 	in 	pertinent 	part:
(a) 	The 	employer 	and 	the 	exclusive
representative 	of 	the 	established 	unit 	may
file 	a 	responding 	statement 	supporting 	or
opposing 	the 	severance 	request. 	Such
~esponse 	shall 	be 	filed 	with 	the 	regional
office 	within 	20 	days 	following 	the 	date 	of
service 	of 	the 	severance 	reguest. 	Service
and 	proof 	of 	service 	of 	the 	response 	pursuant
to 	section 	32140 	are 	required.
(c) 	If 	no 	timely 	opposing 	statement 	is 	filed
by 	the 	exclusive 	representative 	pursuant 	to
this 	section, 	the 	other 	parties 	to 	the
severance 	reguest 	may 	proceed 	with 	the 	unit
determination 	process, 	including 	recognition
or 	certification 	of 	a 	severance 	petitioner.
(Emphasis 	added.)
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PERB 	issued 	an 	administrative 	determination 	that 	proofs 	of
support 	were 	sufficient 	and 	requested 	the 	District 	file 	a
decision 	concerning 	the 	severance 	request. 	On 	December 	3, 	1991,
the 	District 	denied 	recognition 	of 	Petitioner. 	An 	informal
settlement 	conference 	was 	set.
·At the 	settlement 	conference, 	Petitioner 	contended 	that 	SEIU
had 	waived 	its 	right 	to 	participate 	in 	the 	proceeding 	because
it's 	response 	had 	neither 	been 	timely 	filed 	nor 	properly 	served.
The 	conference 	was 	continued 	so 	that 	an 	investigation 	could 	be
performed. 	On 	February 	3, 	1992, 	Petitioner 	filed 	a 	letter 	with
PERB 	contending 	(1) 	SEIU 	had 	no 	right 	to 	participate 	because 	its
response 	was 	neither 	timely 	filed 	nor 	properly 	served; 	(2) 	the
District 	has 	no 	independent 	right 	to 	object 	to 	the 	petition; 	and
(3) 	PERB 	should 	enjoin 	SEIU 	and 	the 	District 	from 	negotiating
with 	one 	another.
Administrative 	Determination
The 	administrative 	determination 	found 	that 	the
September 	19, 	1991, 	letter 	incorrectly 	required 	the 	responses 	be
filed 	within 	20 	days 	of 	the 	date 	of 	service 	of 	the 	letter. 	In
the 	same 	paragraph 	of 	the 	letter, 	parties 	are 	correctly 	told 	to
file 	a 	response 	within 	20 	days 	from 	the 	date 	of 	service 	of 	the
request. 	See 	PERB 	Regulation 	33710, 	footnote 	1, 	supra. 	Both
parties 	timely 	filed 	under 	the 	incorrect 	time 	limit 	stated 	in 	the
letter, 	but 	did 	not 	timely 	file 	under 	PERB 	Regulation. 	The 	Board
agent 	found 	that 	the 	Board 	has 	held 	it 	is 	responsible 	for
correcting 	the 	errors 	of 	its 	agents, 	and 	that 	principles 	of
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equity
	and
	fairness
	should
	not
	be
	subordinated
	to
	rigid
procedural
	requirements.
	(Pittsburgh
	Unified
	School
	District
(1978)
	PERB
	Order
	No.
	Ad-49;
	Menlo
	Park
	City
	Elementary 	School
Di
strict.
	et 	al.
	( 19 7
9)
	PERB
	Dec
is
ion
	No.
	Ad-6
5.
)
The
	Board
	agent 	held
	that
	because
	the
	District
	and
	SEIU
relied
	on
	the
	incorrect
	and
	confusing
	time
	limits 	stated
	in
PERB's
	letter,
	and
	in
	good
	faith 	filed
	their
	responses
	in
	accord
therewith,
	causing
	no
	prejudice 	to
	the
	Petitioner,
	they 	should
not
	be
	penalized.
The
	Board
	agent
	found
	that
	PERB
	Regulation
	33710
	does
	not
expressly
	state 	that
	the 	exclusive
	representative 	will
	waive
	its
right
	to
	oppose
	the
	petition
	if
	it
	fails
	to
	file
	an
	opposing
statement.
	The
	Board
	agent
	states 	that
	the
	purpose
	of
	the
language
	is
	to
	"ensure
	compliance
	with
	the
	Board's
	policy 	of
resolving
	all
	representation
	matters
	as
	expeditiously
	as
possible."
	It
	is
	further 	stated 	that
	"[i]t
	is
	also 	the 	Board's
policy
	to
	ensure
	that
	any
	decision
	reached 	regarding
	unit
appropriateness
	be
	a
	fully
	informed 	one."
	It
	is
	found
	that
	SEIU
can
	provide
	critical
	information
	in
	this
	case,
	and
	to 	disallow
	it
from
	doing
	so 	would 	be
	inconsistent
	with 	the 	factfinding 	goals 	of
the 	investigation.
	The 	good
	faith 	filing 	is
	therefore 	accepted,
and
	it
	is
	found
	that
	SEIU
	has
	not
	waived
	its
	right 	to 	participate
in 	the 	matter.
The 	Board
	agent 	excuses
	SEIU 1 s
	failure 	to 	provide
	a
	proof 	of
service, 	finding 	that 	the
	letter
	indicates 	copies 	had 	been 	sent
to 	the 	parties,
	and
	that
	a 	sworn
	declaration 	of 	the 	secretary
	who
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effected 	service 	had 	been 	filed 	with 	PERB, 	stating 	that 	all
parties 	were 	served 	on 	October 	9, 	1991. 	It was 	further 	noted
that 	Petitioner 	had 	not 	alleged 	that 	it 	was 	not 	served 	with
SEIU's 	response, 	nor 	had 	Petitioner 	made 	any 	showing 	of 	prejudice
resulting 	from 	the 	absence 	of 	a 	formal 	proof 	of 	service.
"The 	Board 	agent 	summarily 	dismissed 	Petitioner's 	request 	for
an 	injunction 	barring 	SEIU 	and 	the 	District 	from 	negotiating, 	on
the 	ground 	that 	the 	request 	was 	not 	properly 	made. 	In 	response
to 	Petitioner's 	request 	that 	hearing 	dates 	be 	scheduled 	only 	on
bus 	drivers' 	"non-working 	days," 	the 	Board 	agent 	states 	that 	PERB
will 	follow 	its 	normal 	practice 	when 	scheduling 	any 	proceedings,
i.e., 	during 	PERB 	work 	days 	and 	hours.
DISCUSSION
PERB 	Regulation 	32360 	states, 	in 	pertinent 	part:
(a) 	An 	appeal 	may 	be 	filed 	with 	the 	Board
itself 	from 	any 	administrative 	decision,
except 	as 	noted 	in 	section 	32380.
(c) 	The 	appeal 	must 	be 	in writing 	and 	must
state 	the 	specific 	issue(s) 	of 	procedure,
fact, 	law 	or 	rationale 	that 	is 	appealed 	and
state 	the 	grounds 	for 	the 	appeal.
The 	appeal 	filed 	by 	Victor 	Wightman 	on 	behalf 	of 	Petitioner 	fails
to 	adequately 	state 	the 	issues 	being 	appealed 	or 	the 	grounds 	for
the 	appeal. 	The 	portions 	of 	the 	appeal 	which 	best 	state 	the
issues 	on 	appeal 	are 	as 	follows:
For 	one 	quarter 	of 	a 	year 	then, 	petitioners
were 	thereby 	foreclosed 	from 	addressing 	their
concerns 	to 	PERB 	(i.e. 	required 	to 	complete 	a
"window period''). 	All 	this 	in 	the 	holy 	name
of 	"procedure 11 •
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Now, 	nearly 	a 	year 	later, 	(with 	still 	no 	PERB
hearing 	scheduled 	for 	petitioning 	schoolbus
drivers), 	PERB 	agent 	Anita 	Martinez 	states
that 	'to 	stand 	on 	technicalities 	would 	not 	be
equitable'! 	. 	Adding 	a 	'time-out' 	upon 	a
'delay', 	then, 	Ms. 	Martinez 	has 	chosen 	to
continue 	placing 	petitioners 	severance
hearings 	on 	hold ...
. 	Martinez 	adds 	'petitioners 	have 	not
been 	prejudiced' 	by 	respondents' 	activities.
As 	the 	appeal 	does 	not 	state 	the 	issues 	on 	appeal 	or 	the 	grounds
for 	the 	appeal, 	the 	appeal 	itself 	is 	defective 	under 	PERB
Regulation 	section 	32360.
ORDER
The 	appeal 	of 	the 	administrative 	determination 	in 	Case 	No.
LA-S-115 	is 	hereby 	DENIED, 	and 	the 	matter 	is 	remanded 	to 	the
Los 	Angeles 	Regional 	Director 	to 	be 	processed 	in 	accordance 	with
PERB 	Regulations.
Chairperson 	Hesse 	and 	Member 	Carlyle 	joined 	in 	this 	Decision.
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