Service Employees International Union (Watts) (PERB 0863E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOWARD O. 	WATTS,
Complainant,
v.
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 99,
Respondent.
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) 	Case No. 	LA-PN-113
PERB 	Decision No. 	863
December 	28, 	1990
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Appearance: 	Howard 0. 	Watts, 	on his own behalf.
Before Hesse, 	Chairperson; 	Camilli and Cunningham, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment Relations 	Board 	(PERB 	or Board) 	on appeal 	by Howard O.
Watts 	of 	an administrative determination 	(attached hereto) 	by 	the
Los Angeles 	regional 	director dismissing his 	public 	notice
complaint which was 	filed 	against 	the 	Service 	Employees
International Union, 	Local 	99 	(Local 	99). 	The complaint alleged
that 	Local 	99 	violated the 	Educational 	Employment 	Relations 	Act
(EERA) 	section 3547(a) 	and 	(b)1 by submitting bargaining
1EERA 	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) 	state, 	in
pertinent part:
(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.
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proposals 	to the Los Angeles 	Unified School 	District 	(District),
pursuant 	to 	EERA's 	public 	notice 	requirements 	and prior to 	Local
99's 	recognition by PERB as 	an exclusive 	representative 	of 	the
District's 	employees 	in Unit F.2
(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.
In his 	appeal, 	Watts 	asserts 	that the administrative
determination is 	in 	error because 	it 	stated 	that he had 	charged
Local 	99 with the violation of 	3547 	"section A" 	[sic] 	when he, 	in
fact, 	only referred to 	section 	"B." 	Nevertheless, 	the gist of
his 	original 	complaint 	focuses 	both on the words 	"exclusive
representative" 	in subsection 	(a) 	as well as the 	lack of
opportunity 	for the public 	to 	comment 	on the proposals 	as
mandated by subsection 	(b).
We 	have 	reviewed the 	regional 	director's 	dismissal 	in 	light
of 	the 	complainant's 	appeal 	and the 	entire record 	in this 	matter
and adopt 	that dismissal 	as 	the decision of 	the 	Board 	itself.3
2Watts 	also 	argues 	that he did not 	receive 	assistance with
this 	complaint, 	as 	is 	required by PERB Regulation 32920.
However, 	the nature of the 	assistance to be provided by PERB
Board agents 	is 	technical only, 	and legal 	assistance 	is 	not
mandated by 	this 	section. 	(Los Angeles 	Community College
District 	(Watts) 	(1981) 	PERB Decision No. 	186.) 	The record in
this 	case 	indicates 	that Watts was 	provided with necessary
technical 	assistance during the 	investigation of 	this 	complaint;
thus, 	this argument is without merit.
3 In addition to 	the 	rationale 	set 	forth 	in the 	regional
director's 	administrative determination herein, 	we 	also 	note 	the
Board's 	holding 	in Los Angeles 	Unified 	School 	District 	(Watts)
(1990) 	PERB Decision No. 	852 	that 	" . . . 	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." 	(Emphasis added, 	p. 	6.)
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ORDER
The public notice complaint in Case No. 	LA-PN-113 	is
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Camilli 	and Cunningham 	join 	in this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOWARD 	WATTS,
Complainant,
v.
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 99,
Respondent.
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) 	Case No. 	LA-PN-113
ADMINISTRATIVE
DETERMINATION
September 	19, 	1990
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This 	administrative 	determination dismisses 	a public 	notice
complaint 	filed by 	Howard Watts 	against 	the 	Service 	Employees
International Union, 	Local 	99 	(Local 	99 or Union) 	for failure to
state a violation of 	section 3547(a) 	and 	(b)1 of the Educational
Employment Relations Act 	(EERA).2
1Government Code 	Section 	3547 	provides 	in pertinent part:
(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.
2The EERA 	is 	codified 	at Government 	Code 	section 	3540 	et
seq. 	All 	references 	are to 	the Government Code unless 	otherwise
noted.
. . .
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BACKGROUND
On February 22, 	1990,3 Howard Watts 	filed a public 	notice
complaint pursuant 	to 	PERB regulation 	32910 	in the 	Los Angeles
Region of the Public 	Employment Relations 	Board 	(PERB). 	The
complaint alleges 	the Union violated 	section 3547(a) 	and 	(b) 	of
the 	EERA 	"by 	not 	allowing the public 	to 	speak to 	the 	[initial]
proposal 	that was presented to the 	[Los Angeles] 	Board 	[of
Education] 	by 	a 	recognized 	Exclusive 	Bargaining Agent 	and 	not
only 	by 	the 	employee 	organization." 	The 	essence 	of 	the
complaint 	is 	that 	the 	Union violated public 	notice 	requirements
when it presented, 	and allowed comment upon, 	bargaining proposals
prior 	to 	its 	recognition by 	PERB 	as 	an exclusive 	representative
of 	certain 	employees 	of 	the 	Los Angeles 	Unified 	School 	District
(District).
The 	factual assertions 	of this 	complaint are 	as 	follows. 	On
January 	16, 	the 	District 	staff presented 	a 	recommendation 	for
"conditional 	voluntary 	recognition"• of 	Local 	99 	for Unit 	F,
Teachers Assistants, 	to the District's Committee of the Whole.
On January 	22, 	the 	District 	granted 	"conditional 	voluntary
recognition" 	to Local 	99. 	On that same date, 	Local 	99 presented
initial 	bargaining proposals 	for Unit F 	to 	the 	Board 	of
Education. 	Public 	comment was 	scheduled 	and held 	on January 	29,
3A11 	dates 	referred to are 	1990 	unless 	otherwise 	noted.
4The 	District 	"conditionally recognized" 	Local 	99 	based 	on 	a
letter, 	dated January 	16, 	from the State Mediation Service's
Presiding Mediator, 	Tom McCarthy, 	indicating that 	"a 	majority of
Teacher Assistants 	signed 	the 	authorization cards." 	A 	copy 	of
this 	letter was 	attached 	to 	the 	complaint.
N	2

and 	again on 	February 	5. 	The public was 	afforded 	full
opportunity 	to 	comment 	at 	these 	meetings.5
DISCUSSION
PERB 	case 	law has 	established 	that 	only 	the 	employer 	can
violate 	section 	3547(a).6 In Los Angeles Community College
District 	(Kimmett) 	(1981) 	PERB Decision No. 	158, 	the Board stated
that
the preparation of 	the 	agenda 	for public 	meetings 	and
the 	conduct 	of 	such meetings 	are 	the province 	of 	the
District, 	and it is 	the District's 	obligation and
responsibility 	to provide 	proper public 	notice 	and 	to
present 	all 	initial proposals—its 	own as well 	as 	those
of 	the 	exclusive representative—to 	the 	public 	at 	an
appropriate 	meeting.
Therefore, 	the Union cannot have violated 	the 	requirements 	of
section 	3547(a) 	because 	it did not control 	the 	agenda.
Furthermore, 	even if 	Local 	99 	could have 	controlled the
public 	notice procedure of the District, 	proposals were
presented, 	and public 	comment was 	held on two 	separate dates. 	In
Los Angeles 	Unified School 	District 	(Kimmett) 	(1979) 	PERB Order
No. 	Ad-53, 	PERB noted that the intent of 	section 3547, 	as 	stated
by the Legislature in section 3547(e), 	is that
the public 	be 	informed 	of 	the 	issues 	that 	are 	being
negotiated 	upon and 	have 	full 	opportunity 	to 	express
their view on the 	issues 	to the public 	school 	employer,
and 	to 	know of 	the positions 	of 	their 	elected
representatives.
5Mr. 	Watts has 	indicated that he 	spoke at the public
hearings 	on January 	29 	and February 	5.
6Sacramento City Unified 	School 	District 	(Spencer) 	(1982)
PERB Decision No. 	205; 	Kern Community College District 	(1983)
PERB 	Decision 	No.372
w	3

Complainant did not allege any 	facts 	to 	indicate 	that
meeting 	and 	negotiating occurred 	either prior to 	Local 	99's
presentation of 	its 	initial 	bargaining proposals 	to 	the 	District
or prior to 	the 	two public 	comment 	meetings 	held by 	the 	District,
nor did 	the 	complainant 	in this 	case 	allege 	any 	other 	facts 	which
would 	support a finding of a violation of 	section 	3547(b).7
Based on the 	facts 	alleged 	in the 	complaint, 	the 	District
presented Local 	99 	initial proposals 	at a public meeting, 	and
held public 	comment on two occasions prior to 	negotiations.
These 	facts do 	not 	support a 	finding that 	the 	District 	or the
Union failed to comply with 	section 3547(a) 	and 	(b). 	Los Angeles
Community College District 	(1984) 	PERB Decision No. 	411; 	Los
Angeles 	Community College District 	(1980) 	PERB Order Ad-91.
Hence no violation of 	section 	3547 	occurred.
This 	complaint 	instead 	goes 	to 	the 	issue 	of whether Local 	99
was properly recognized by the District. 	As 	such, 	it does 	not
actually allege a violation of 	section 	3547.8 PERB 	regulation
32910 	limits 	the 	scope of 	EERA public 	notice 	complaints 	to
allegations 	of 	failure to comply with 	section 	3547. 	Violations
of 	the procedure 	for recognition of 	an 	employee 	organization do
not 	fall within the purview of 	EERA's 	public 	notice provisions.
Therefore, 	the propriety of 	the District's 	recognition of 	Local
7Palo Alto Unified School 	District 	(Fein) 	(1981) 	PERB
Decision No. 	184.
8Recognition procedures 	for 	employee 	organizations 	are
covered in sections 	3544 	- 	3544.9.
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99 	cannot be 	addressed 	via 	the 	filing 	of 	a public 	notice
complaint.
CONCLUSION
This 	complaint 	is 	DISMISSED 	for 	failure 	to 	state 	a 	violation
of 	section 3547.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulations,
any party 	adversely 	affected by 	this 	ruling may 	appeal 	to 	the
Board 	itself 	by 	filing 	a written appeal within 	twenty 	(20)
calendar days 	after 	service 	of 	this 	ruling 	(California
Administrative Code, 	title 8, 	section 32925). 	To be timely
filed, 	the 	original 	and 	five 	copies 	of 	such appeal 	must be
actually 	received 	by 	the 	Board 	itself 	before 	the 	close 	of
business 	(5:00 p.m.) 	or 	sent by telegraph, 	certified or Express
United 	States 	mail 	postmarked 	no 	later than the 	last 	date 	set 	for
filing 	(California Administrative Code, 	title 8, 	section 32135).
Code of 	Civil 	Procedure 	section 	1013 	shall 	apply. 	The 	Board's
address is:
Members, 	Public Employment Relations Board
1031 	18th 	street
Sacramento, 	CA 95814
The appeal 	must 	state 	the 	specific 	issues 	of 	procedure,
fact, 	law or rationale that are appealed, 	must 	clearly and
concisely 	state 	the 	grounds 	for each 	issue 	stated, 	and 	must be
signed by the 	appealing party 	or 	its 	agent.
If 	a timely appeal 	of this 	ruling is 	filed, 	any other party
may 	file with the 	Board 	itself 	an original 	and 	five 	copies 	of 	a
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statement 	in 	opposition within 	twenty 	calendar 	days 	following 	the
date 	of 	service 	of 	the 	appeal 	(California Administrative Code,
title 8, 	section 32625). 	If no timely appeal 	is 	filed, 	the
aforementioned 	ruling 	shall 	become 	final 	upon 	the 	expiration 	of
the 	specified 	time 	limits.
Service
All 	documents 	authorized 	to 	be 	filed herein must 	also be
"served" 	upon all parties 	to 	the proceeding and the 	Los Angeles
Regional 	Office. 	A 	"proof 	of 	service" 	must 	accompany 	each copy
of 	a 	document 	served upon a party 	or 	filed with 	the 	Board 	itself.
(See California Administrative Code, 	title 	8, 	section 32140 	for
the 	required 	contents 	and 	a 	sample 	form.) 	The 	appeal 	and 	any
apposition to 	an appeal 	will 	be 	considered properly 	"served" 	when
personally 	delivered 	or 	deposited 	in 	the 	first-class 	mail 	postage
paid 	and 	properly 	addressed.
Extension 	of 	Time
A 	request 	for an 	extension of 	time 	in which 	to 	file 	an
appeal 	or opposition to 	an 	appeal 	with 	the 	Board 	itself 	must 	be
in writing 	and 	filed with 	the 	Board 	itself 	must be 	in writing 	and
filed with 	the 	Board 	at 	the 	previously 	noted 	address. 	A 	request
for 	an 	extension must 	be 	filed 	at 	least 	three 	calendar 	days
before 	the 	expiration of 	the 	time 	required 	for 	filing 	the
document. 	The request must 	indicate good cause 	for and, 	if
known, 	the position of 	each other party 	regarding 	the 	extension,
and 	shall 	be 	accompanied by proof 	of 	service 	of 	the 	request 	upon
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each party 	(California Administrative Code, 	title 	3, 	section
32132).
Dated: 	September 	19, 	1990
Carol 	L. 	Karjala
Regional 	Director
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