Los Angeles Unified School District (PERB 0285E)

DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE 	OF CALIFORNIA
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, LOCAL 699,
Charging 	Party,
v.
LOS 	ANGELES UNIFIED 	SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-1085
PERB Decision No. 	285
February 17, 	1983
Appearances; 	Michael L. 	Jensen, 	Attorney 	(O'Melveny & Myers)
for 	Los Angeles 	Unified 	School District, 	Robert Hunt 	for
Service Employees 	International Union, 	Local 699.
Before Tovar, Morgenstern, 	and Burt, Members.
DECISION
TOVAR, Member: 	This 	case 	is before 	the Public Employment
Relations Board 	(PERB or 	Board) 	on 	exceptions1 filed 	by 	the
Los Angeles 	Unified School District 	(District) 	to a 	hearing
officer's 	proposed 	decision 	concluding 	that 	the 	District 	had
violated 	subsections 	3543.5(a) 	and 	(b) 	of 	the Educational
1The 	District 	did 	not 	raise, 	by 	its 	exceptions 	or 	any
earlier 	pleading, 	the 	argument 	that Local 	699 may 	not 	represent
a unit 	of 	supervisory employees. 	Therefore, 	the District 	is
found 	to 	have 	waived 	this 	potential 	affirmative 	defense 	in 	this
proceeding. 	See Los Angeles 	Unified 	School District/Lynwood
Unified School District 	(8/27/82) 	PERB Order No. 	Ad-132.
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Employment 	Relations 	Act 	(EERA or 	the 	Act)2 by 	refusing 	to
meet 	and 	discuss 	wages 	and 	fringe 	benefits 	with 	the 	Service
Employees International Union, 	Local 699 	(Local 699), 	the
nonexclusive 	representative of 	a 	unit of 	supervisory
employees.3
The Board 	has 	considered 	the 	entire 	record 	in 	this 	case 	in
light of 	the District's 	exceptions. 	We 	find 	the 	hearing
officer's 	findings of 	fact 	free 	of 	prejudicial 	error 	and
incorporate 	them by 	reference 	herein. 	We 	also affirm his
conclusions 	of 	law 	to 	the 	extent 	they 	are 	consistent 	with 	this
Decision.
2EERA is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the Government 	Code
unless 	otherwise 	specified. 	Subsections 	3543.5(a) 	and 	(b)
state:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
3There 	were 	no 	exceptions 	taken 	to 	the 	hearing officer's
conclusion 	that 	the 	District 	did 	not 	violate 	subsection
3543.5(d) 	by meeting 	and 	discussing 	with 	employee 	organizations
representing Unit D employees, 	another 	unit; 	conducting a no
representation 	campaign; 	or 	creating 	competing 	employee
organizations. 	Therefore, 	those 	issues 	are 	not before us.
22

DISCUSSION
The 	District's 	main 	exceptions 	go 	to 	the 	hearing 	officer's
application of 	the 	rule 	of 	law 	established 	by 	this 	Board 	in
Professional Engineers 	in California Government 	(3/19/80) 	PERB
Decision No. 	118-S 	(PECG) 	finding 	that 	under 	the 	State
Employer-Employee 	Relations 	Act 	(SEERA),4 the 	State 	employer
has 	the 	duty 	to provide 	the 	nonexclusive 	representative 	of 	its
employees 	with 	a 	reasonable 	opportunity 	to 	meet 	and 	discuss
over 	matters 	fundamental 	to 	employer-employee 	relations.5
Instead, 	the District urges us 	to 	apply 	the 	rule of 	law
established 	by 	the 	Board 	as 	then 	constituted 	in San 	Dieguito
Union High School District 	(9/2/77) 	EERB Decision No. 	22,6
which 	held 	that 	a 	public 	school 	employer 	was 	under 	no
obligation 	to 	meet 	and 	consult 	with 	nonexclusive
representatives.
While 	the 	PECG 	decision 	failed 	to 	overturn 	the 	holding 	in
San Dieguito, 	we 	take 	this opportunity 	to expressly 	overrule
San 	Dieguito 	and 	to 	conclude 	that 	the 	reasoning 	and 	holding 	in
PECG 	is 	applicable 	to public 	school employers.
4The 	SEERA 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq.
5see Regents of UC 	(UCLA) 	(12/21/82) 	PERB Decision
No. 	267-H; 	CSU, Sacramento 	(4/30/82) 	PERB Decision No. 	211-H.
6Prior 	to January 1, 	1978, 	the PERB was 	known as 	the
Educational 	Employment 	Relations 	Board.
w
	3

The 	District 	argues 	that 	the 	Legislature did 	not 	intend 	to
provide 	representational 	rights 	for 	nonexclusive
representatives 	because 	EERA does 	not provide mandatory meet
and 	confer 	sessions 	with 	representatives 	of employees, 	as
provided 	for 	in 	section 	13085 of 	the Winton Act.7 	We 	reject
the 	District's 	argument 	for 	the 	reasons 	expressed 	below.
In 	enacting 	EERA, 	the 	Legislature 	granted 	significant 	new
collective 	negotiating 	rights 	to school employees. 	It 	is
unlikely, 	given 	the 	general expansion of 	rights 	under 	EERA,
that 	the 	Legislature 	intended 	to diminish 	the 	rights 	already
7The Winton Act, 	formerly California Education Code
sections 	13080 	et 	seq. 	repealed, 	stats 1975 	(Chapter 	961
section 1 ) , 	governed employer-employee 	relations 	in
California's 	public 	schools 	prior 	to EERA's 	enactment.
Section 	13085 	provided 	in pertinent part:
A public 	school employer, 	or 	such
representatives 	as 	it may designate 	who may,
but 	need 	not be, 	subject 	to either
certification 	requirements 	or 	requirements
for 	classified 	employees 	as 	set 	forth 	in
this 	code, 	shall meet 	and 	confer with
representatives 	of 	certificated 	and
classified 	employee 	organizations 	upon
request 	with 	regard 	to all matters 	relating
to 	employment 	conditions 	and
employer-employee 	relations, 	and 	in
addition, 	shall meet 	and 	confer with
representatives 	of 	employee 	organizations
representing 	certificated 	employees 	upon
request 	with 	regard 	to procedures 	relating
to 	the 	definition of educational objectives,
the 	determination of 	the 	content of 	courses
and 	curricula, 	the 	selection of 	textbooks,
and 	other 	aspects of 	the 	instructional
program 	to 	the 	extent 	such matters 	are
within 	the discretion of 	the 	public 	school
employer 	or 	governing 	board 	under 	the 	law.
4

established 	under 	the 	Winton Act 	and 	leave 	employees 	in 	units
with 	no 	exclusive 	representative 	without 	an 	effective 	voice 	in
matters 	as 	fundamental 	to 	the 	employment 	relationship as 	wages
and 	fringe 	benefits.
As 	in 	SEERA,8 two 	statutory 	provisions 	of 	EERA militate
against 	such 	a 	conclusion.
First, 	subsection 3543.1(a) 	provides 	that nonexclusive
representatives 	have 	the 	right 	to 	represent 	their members 	in
their 	employment 	relations 	until 	an 	exclusive 	representative 	is
recognized 	or 	certified.9
8Section 	3515.5 	under 	SEERA provides 	that:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	the 	state, 	except
that once 	an employee 	organization 	is
recognized 	as 	the 	exclusive 	representative
of 	an appropriate 	unit, 	the 	recognized
employee 	organization 	is 	the only
organization 	that may 	represent 	that 	unit 	in
employment 	relations 	with 	the 	state.
Employee 	organizations 	may 	establish
reasonable 	restrictions 	regarding 	who may
join and 	may make 	reasonable 	provisions 	for
the dismissal of 	individuals 	from
membership. 	Nothing 	in 	this 	section 	shall
prohibit 	any employee 	from 	appearing 	in his
own 	behalf 	in his 	employment 	relations 	with
the state.
9Subsection 	3543.1(a) 	of EERA provides 	that:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except 	that once 	an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
55

appropriate 	unit 	pursuant 	to 	Section 	3544.1
or 	3544.7, 	respectively, 	only 	that employee
organization may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school employer. 	Employee 	organizations may
establish 	reasonable 	restrictions 	regarding
who may 	join and 	may make 	reasonable
provisions 	for 	the 	dismissal of 	individuals
from 	membership.
Second, 	EERA does 	not mandate 	that employees 	select 	an
exclusive 	representative.10 The 	Board 	holds 	that 	the
10Section 	3543 	of EERA provides 	a 	follows:
Public 	school 	employees 	shall 	have 	the 	right
to 	form, 	join, 	and participate 	in the
activities of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation on 	all matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall also 	have 	the 	right 	to
refuse 	to 	join or 	participate 	in 	the
activities of 	employee 	organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the public 	school employer, 	except 	that
once 	the employees 	in 	an 	appropriate 	unit
have 	selected 	an 	exclusive 	representative
and 	it 	has 	been 	recognized 	pursuant 	to
Section 	3544.1 or 	certified 	pursuant 	to
Section 3544.7, 	no employee 	in 	that unit may
meet 	and 	negotiate 	with 	the 	public 	school
employer.
Any 	employee 	may 	at 	any 	time 	present
grievances 	to his employer, 	and 	have such
grievances 	adjusted, 	without 	the
intervention of 	the 	exclusive
representative, 	as 	long as 	the adjustment 	is
reached 	prior 	to 	arbitration pursuant 	to
Sections 3548.5, 	3548.6, 3548.7, and 3548.8
and 	the 	adjustment 	is 	not 	inconsistent 	with
the 	terms 	of 	a written 	agreement 	then 	in
effect; 	provided 	that 	the 	public 	school
employer 	shall 	not 	agree 	to 	a 	resolution of
66

implication 	of 	these 	two 	sections 	is 	to 	afford 	representation
to 	employees 	represented 	by a 	nonexclusive 	representative 	while
an 	exclusive 	representative 	has 	not 	been 	selected.11 This
interpretation 	will 	also 	further 	the 	general purpose 	of 	EERA by
improving 	personnel 	management 	and 	employer-employee
relations.12 without deciding 	the 	full 	scope 	of 	the 	right of
the 	grievance 	until 	the 	exclusive
representative 	has 	received 	a 	copy of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been given 	the opportunity 	to 	file 	a
response.
11The 	District's 	contrary 	interpretation 	rests 	on 	its
misreading of 	section 	3543.2, 	which 	sets 	forth 	the 	scope of
representation, 	and 	specifically 	the 	third 	sentence 	of 	that
section 	which provides 	that 	"the 	exclusive 	representative 	of
certificated 	personnel has 	the 	right 	to 	consult" 	on certain
matters of professional 	concern, 	in 	addition 	to 	those 	items
about which 	it 	has 	the 	right 	to meet 	and 	negotiate. 	The 	right
to 	consult granted 	by 	this 	section 	simply expands 	the 	right of
representation 	of 	an 	exclusive 	representative 	of 	certificated
personnel, 	and 	cannot 	reasonably be 	read 	to 	limit 	the 	right of
representation 	guaranteed 	to 	all 	employee 	organizations 	by
section 	3543.1.
12section 3540 	provides 	in part 	as 	follows:
It 	is 	the purpose of 	this 	chapter 	to promote
the 	improvement of 	personnel management 	and
employer-employee 	relations 	within 	the
public 	school systems 	in the 	State 	of
California 	by providing 	a 	uniform basis 	for
recognizing 	the 	right 	of 	public 	school
employees 	to 	join organizations of 	their 	own
choice, 	to be represented 	by such
organizations 	in 	their 	professional 	and
employment 	relationships 	with 	public 	school
employers, 	to select one employee
organization 	as 	the 	exclusive 	representative
of 	the employees 	in an appropriate 	unit, 	and
to 	afford 	certificated 	employees 	a voice 	in
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representation of 	nonexclusive 	representatives, 	the Board 	finds
that 	at 	a minimum 	it 	encompasses 	the 	right 	to meet 	and 	discuss
with 	the 	public 	school employer 	subjects 	as 	fundamental 	to 	the
employment 	relationship as wages 	and 	fringe 	benefits. 	As we 	did
in PECG, 	supra, 	we 	stress 	that 	the obligation 	imposed on 	the
public 	school 	employer 	to 	meet 	with 	a 	nonexclusive 	representative
is 	not 	the 	same 	as 	that 	imposed with 	regard 	to an exclusive
representative. 	Thus, 	whereas 	the public school employer 	and
representatives 	of 	recognized 	or 	certified 	employee 	organizations
have 	the 	mutual obligation 	to meet 	and 	negotiate 	in good 	faith
with 	regard 	to matters 	within 	the 	scope of 	representation
(section 3543.5), 	the Board 	finds 	that 	the obligation 	imposed by
EERA on 	public 	school employers 	with 	respect 	to a 	nonexclusive
representative 	is 	to 	provide 	notice 	and 	a 	reasonable 	opportunity
to meet 	and discuss 	wages, 	fringe benefits, 	and other matters of
fundamental concern 	to 	the 	employment 	relationship prior 	to 	the
time 	the 	employer 	reaches 	a 	decision 	on 	such 	matters.13
the 	formulation of educational policy. 	Nothing
contained 	herein 	shall 	be 	deemed 	to supersede
other 	provisions 	of 	the Education Code 	and 	the
rules 	and 	regulations 	of 	public 	school
employers 	which 	establish 	and 	regulate 	tenure
or 	a merit 	or 	civil 	service 	system or 	which
provide 	for 	other 	methods 	of 	administering
employer-employee 	relations, 	so long as 	the
rules 	and 	regulations 	or 	other 	methods of 	the
public 	school 	employer 	do 	not 	conflict 	with
lawful 	collective 	agreements.
1 3 See, 	State 	of California 	(Franchise Tax Board)
(7/29/82) 	PERB Decision No. 	229-S.
8
• 	• 	• 	• 	• 	• 	• 	• 	•

We, 	therefore, 	affirm 	the 	hearing officer's 	conclusion 	that
the District's 	admitted 	refusal 	to meet 	and 	discuss 	wages 	and
fringe 	benefits 	is 	a breach of 	Local 	699's 	right 	to 	represent
its 	members 	in 	their 	employment 	relations 	with 	the 	District
and, 	as 	such, 	constitutes 	a violation of 	subsection 	3543.5(b)
of 	the Act.
We 	also 	find 	that 	the 	District's 	refusal 	to meet 	and
discuss constitutes a violation of subsection 3543.5(a), 	as 	it
interferes 	with 	employee 	rights 	established 	under 	section 	3543
of 	EERA. 	See 	San Francisco Community College 	District
(10/12/79) 	PERB Decision No. 	105.
Request 	for 	Oral Argument
The 	District 	requests 	the 	opportunity 	to present oral
argument 	before 	the Board14 on 	its 	statement of exceptions 	on
the 	ground 	that 	the 	hearing 	officer's 	proposed 	decision 	is 	a
clear 	departure 	from 	existing 	Board 	precedent 	for 	meet 	and
confer 	requirements 	under 	EERA.
We 	deny 	the District's 	request 	on 	the 	basis 	that 	it 	has 	not
raised 	new 	or 	additional 	arguments, 	which 	were 	not 	already
considered 	in PECG, 	and 	therefore 	no 	useful purpose 	would 	be
served 	in granting 	such 	a 	request.
14See, 	California Administrative 	Code, 	title 	8, 	section
32315.
9

REMEDY
We 	affirm 	the 	hearing 	officer's 	proposed 	remedy 	ordering
the 	District: 	to 	cease 	and 	desist 	from 	denying 	Local 	699 	its
rights 	to 	represent 	its 	members 	by 	failing 	and 	refusing, 	upon
request, 	to meet 	and discuss 	wages 	and 	fringe 	benefits; 	and 	to
cease 	and 	desist 	from 	interfering 	with 	employee 	exercise 	of
rights 	under 	the Act. 	The 	District 	is 	also 	ordered 	to post 	a
copy 	of 	the 	Notice 	to Employees 	attached 	as 	an 	appendix 	hereto
at 	its 	headquarters 	office 	and 	in 	other 	locations 	where 	notices
to 	employees 	are 	customarily 	posted.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government
Code 	section 	3541.5(c), 	it 	is 	hereby ORDERED that 	the
Los 	Angeles 	Unified 	School 	District 	and 	its 	representatives
shall:
1. 	CEASE 	AND 	DESIST 	FROM:
(a) 	Denying 	the 	Service 	Employees 	International
Union, 	Local 	699 	its 	right 	to 	represent 	its members, 	prior 	to
the 	selection of 	an exclusive 	representative, 	by 	failing 	and
refusing, 	upon 	request, 	to meet 	and 	discuss 	wages 	and 	fringe
benefits; 	and
(b) 	Interfering 	with 	employees 	because 	of 	their
exercise of 	their 	right 	to 	form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of 	their 	own 	choosing 	for
10

the 	purpose 	of 	representation 	on 	all 	matters 	of
employer-employee 	relations.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTION 	WHICH 	IS
DESIGNED 	TO 	EFFECTUATE 	THE 	PURPOSES 	OF 	THE 	EDUCATIONAL
EMPLOYMENT 	RELATIONS 	A C T :
(a) 	Within 	five 	(5) 	calendar 	days 	after 	service of
this 	Decision, 	prepare 	and 	post 	copies 	of 	the 	Notice 	to
Employees 	attached 	as 	an 	appendix 	hereto, 	for 	thirty 	(30)
workdays 	at 	its 	headquarters 	office 	and 	in 	conspicuous 	places
at 	the 	locations 	where 	notices 	to 	classified 	employees 	are
customarily 	posted;
(b) 	Immediately 	upon 	completion 	of 	the 	posting 	period
notify 	the 	regional 	director 	of 	the 	Public 	Employment 	Relations
Board, 	Los Angeles 	Regional Office, 	in writing, 	of 	the 	action
taken 	to 	comply 	with 	this 	Order.
Members 	Morgenstern 	and 	Burt 	joined 	in 	this 	Decision.
11

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	NOTICE 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	Unfair 	Practice 	Case 	No. 	LA-CE-1085
Service 	Employees 	International Union, 	Local 	6 9 9 1 v. 	Los
Angeles 	Unified 	School 	District 	in 	which 	all 	parties 	had 	the
right 	to participate, 	it 	has 	been 	found 	that 	the 	Los Angeles
Unified 	School 	District 	violated 	Government 	Code 	section
3543.5(a) 	and 	(b).
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to post
this 	Notice 	and 	will 	abide 	by 	the 	following. 	WE WILL:
1. 	CEASE 	AND 	DESIST FROM:
(a) 	Denying 	the 	Service 	Employees 	International 	Union,
Local 	699, 	its 	right 	to 	represent 	its members, 	prior 	to 	the
selection 	of 	an 	exclusive 	representative, 	by 	failing 	and
refusing, 	upon 	request, 	to meet 	and 	discuss 	wages 	and 	fringe
benefits;
(b) 	Interfering 	with 	employees 	because 	of 	their
exercise 	of 	their 	right 	to 	form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of 	their 	own 	choosing 	for
employer-employee 	relations.
1Please 	note 	that, 	since 	the 	hearing 	in Case 	No.
LA-CE-1085, 	the 	name 	of 	the 	charging 	party 	was 	changed 	from
Service Employees 	International Union, 	Local 	699, 	to 	Supervisory
Employees Union, 	Local 347, 	SEIU.
Dated: 	. 	Los Angeles Unified 	School
District
By
Authorized 	Agent
THIS 	IS 	AN 	OFFICIAL NOTICE. 	IT 	MUST 	REMAIN 	POSTED FOR THIRTY
(30) 	CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING 	AND MUST 	NOT
BE 	ALTERED, 	OR COVERED 	BY ANY 	OTHER MATERIAL.