Los Angeles Unified School District and Busdrivers Association for Unity and Service Employees International Union Local 99 (PERB 1267E)

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STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Employer,
and
BUSDRIVERS 	ASSOCIATION 	FOR UNITY,
Petitioner,
and
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 99, AFL-CIO,
Exclusive 	Representative.
Case No. 	LA-SV-123
PERB Decision No. 	1267
June 16, 	1998
Appearances: 	O'Melveny & Myers by Pamela D. 	Samuels, 	Attorney,
for Los Angeles Unified School District; 	Victor Wightman for
Busdrivers 	Association 	for Unity.
Before Dyer, 	Amador and Jackson, 	Members.
DECISION
JACKSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the Busdrivers
Association for Unity 	(BAFU) 	of 	an administrative 	law judge's
(ALJ) 	proposed decision 	(attached) 	denying BAFU's 	severance
request.1 Relying upon 	the 	criteria 	set 	forth 	in 	section 	3545(a)
1PERB regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	Section 33700
provides, 	in pertinent part:
(a) 	An employee organization may file a
request 	to become 	the 	exclusive
representative 	of 	an appropriate 	unit
consisting of 	a group of 	employees who are
already members 	of 	a 	larger 	established unit

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of 	the Educational 	Employment Relations Act 	(EERA)2 and the 	PERB
unit 	determination 	in Sweetwater Union High School 	District
(1976) 	EERB Decision No. 	4,3 (Sweetwater) . 	the ALJ held that BAFU
failed to demonstrate 	that 	its proposed unit 	of bus 	drivers 	is
more 	appropriate 	than the 	existing operations-support unit, 	and
denied 	the 	severance petition. 	The 	Board has 	reviewed 	the 	entire
record in this 	case, 	including the severance petition, 	the
hearing 	transcripts, 	the proposed decision and the parties
represented by an 	incumbent 	exclusive
representative 	by 	filing 	a 	request 	for
recognition 	in accordance 	with 	the provisions
of Article 2 	(commencing with Section 33050).
All provisions 	of Article 2 	and Article 4 	of
this 	Subchapter shall 	be applicable 	to a
severance 	request 	except 	as 	provided 	in 	this
Article 	7.
(b) 	Whenever the conditions 	of Government
Code Section 3544.1(c) 	exist, 	a severance
request 	for 	recognition 	or 	intervention must
be 	filed 	in accordance 	with Section 	32135
with 	the 	employer during 	the 	"window period"
as 	defined by Section 33020.
2EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3545 provides, 	in pertinent part:
(a) 	In each case where 	the appropriateness
of 	the unit 	is an issue, 	the board shall
decide 	the question on the basis 	of 	the
community of 	interest 	between and among 	the
employees 	and 	their 	established practices
including, 	among other things, 	the extent 	to
which 	such employees 	belong 	to 	the 	same
employee 	organization, 	and the effect 	of 	the
size 	of 	the unit 	on the 	efficient 	operation
of 	the school 	district.
3Prior to January 1978, 	PERB was 	known as 	the Educational
Employment 	Relations 	Board or EERB.
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filings.4 We 	hereby sustain 	the ALJ's 	findings 	and adopt 	the
proposed decision as 	the 	decision of 	the Board 	itself, 	consistent
with 	the 	following 	discussion.
DISCUSSION
Throughout 	its appeal, 	BAFU argues 	that 	the ALJ's
application of 	EERA has undermined the bus 	drivers' 	free 	choice
of 	representation.5 BAFU points 	to federal 	law, 	the National
Labor Relations Act 	(NLRA) 	and decisions 	of 	the National 	Labor
Relations Board 	(NLRB) 	as authority for its 	assertion. 	We
disagree 	with BAFU's 	argument.
Although 	the 	NLRA expressly 	references 	employee 	free
choice,6 the provisions 	of 	EERA contain no 	such employee 	free
4The 	request 	for 	oral 	argument 	filed by BAFU 	is 	denied.
5As 	BAFU states 	in its 	exceptions:
BAFU's 	principal 	exception 	to 	PERB Judge Donn
Ginoza's 	proposed 	decision 	concerns 	a
fundamental 	misunderstanding 	[the
applicability] 	of national 	labor law as 	it
applies 	to 	state 	EERA criteria 	for severance.
6See 29 U.S.C, sec. 	159(b):
(b) 	Determination of bargaining unit by Board
The Board shall 	decide 	in each case whether,
in order to assure 	to employees 	the 	fullest
freedom in 	exercising 	the 	rights 	guaranteed
by this 	subchapter, 	the unit appropriate 	for
the purposes 	of 	collective bargaining 	shall
be the employer unit, 	craft unit, 	plant unit,
or subdivision thereof: 	Provided, 	that 	the
Board shall 	not 	(1) 	decide 	that any unit 	is
appropriate 	for such purposes 	if 	such unit
includes 	both professional 	employees 	and
employees 	who are 	not 	professional 	employees
unless 	a majority of 	such professional
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choice 	language. 	Further, 	while NLRB 	cases may be 	instructive,
they 	certainly are 	not 	controlling 	in matters 	before 	PERB when
interpreting 	dissimilar provisions 	of 	EERA and 	the 	NLRA.
(Regents 	of 	the University of 	California v. 	Publi-------c 	Employment
Relations Bd. 	(1986) 	41 Cal.3d 601, 	615-617 	[224 Cal.Rptr.
631] . ) 7
The Assembly Advisory 	Council 	on 	Public 	Employee 	Relations
(Council) 	appointed by 	the 	Legislature 	to 	recommend provisions
employees vote 	for 	inclusion 	in such unit;
or 	(2) 	decide 	that any craft unit 	is
inappropriate 	for 	such purposes 	on 	the 	ground
that 	a different 	unit 	has 	been established by
a prior Board determination, 	unless 	a
majority of 	the 	employees 	in the proposed
craft 	unit vote 	against 	separate
representation or 	(3) 	decide 	that any unit 	is
appropriate 	for such purposes 	if 	it 	includes,
together with other employees, 	any individual
employed as 	a guard 	to 	enforce against
employees 	and other persons 	rules 	to protect
property of 	the 	employer or 	to protect 	the
safety of persons 	on the 	employer's 	premises;
but 	no 	labor organization shall 	be 	certified
as 	the 	representative 	of 	employees 	in a
bargaining unit 	of 	guards 	if 	such
organization admits 	to membership, 	or is
affiliated 	directly 	or 	indirectly with 	an
organization which admits 	to membership,
employees 	other than guards.
7See also, 	California Assembly Advisory Council 	on Public
Employee Relations, 	Final Report, pp. 	89-90, 	(March 15, 	1973)
which reads, 	in pertinent part:
One 	other observation 	is 	in order concerning
the 	criteria 	to be 	followed by the 	Board 	in
determining appropriate 	bargaining units.
Although the decisions 	of 	the NLRB 	in the
private 	sector, 	and of 	agencies 	similar to
the Board in other States, 	may on occasion
prove 	suggestive 	or even persuasive, 	they
should not 	be 	treated as 	binding precedents
upon 	the 	Board 	in California.
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for 	the 	new 	collective bargaining 	statutory 	scheme 	for public
sector employees 	concluded 	that: 	"the 	Board 	should be 	empowered
and directed 	in 	the 	statute 	to 	find 	the 	largest 	reasonable unit
to be 	the 	appropriate 	one 	for purposes 	of 	collective bargaining."
(California Assembly Advisory Council, 	Final Report, 	p. 	85
(March 15, 	1973); 	"Aaron Report.")8
The 	Council 	expressly 	rejected 	the 	employee 	free 	choice
procedures 	of 	the NLRA:
Although 	there 	are 	sound 	reasons 	to
support 	. . . 	[a 	small 	group of 	employees
within a 	larger group being 	able 	to vote 	for
their own representative] 	in the private
sector, 	we believe 	it 	is 	inappropriate 	for
the public 	sector because 	of 	its 	tendency to
result 	in a proliferation of 	bargaining
units--the principal 	evil 	to be avoided.
(Aaron Report, p. 	86 	(March 15, 	1973).
(Emphasis 	added.)
Due 	to the divergent 	sizes, 	organization and function of
private 	sector businesses, 	a different practice 	of unit
determination has 	evolved. 	As 	the ALJ 	correctly pointed out,
EERA 	calls 	for more 	general 	uniformity and a more 	limited 	range
8In 	1972, 	the 	Legislature 	established the Assembly Advisory
Council on Public Employee Relations 	(Assem. 	Res. 	No. 	51 	(1972
reg. 	sess.)). 	The purpose of the Council was to provide
recommendations 	"for 	establishing 	an 	appropriate 	framework within
which disputes 	can be 	settled between public 	jurisdictions 	and
their employees. 	. . . " 	(Id.) 	The 	Council's 	recommendations
(The Aaron Report became 	the basis 	for the public 	sector 	labor
relations 	legislation of 	the next 	succeeding years.
PERB 	looks 	to 	the Aaron Report 	to discern 	legislative
history and 	the 	Legislature's 	intent 	regarding 	the 	statutes
administered by PERB. 	(See, 	State of 	California 	(Department 	of
Corrections) 	(1995) 	PERB Decision No. 	1100-S, 	concurring opinion;
Healdsburg Union High 	School 	District 	and 	Healdsburg 	Union 	School
District/San Mateo City School 	District 	(1984) 	PERB Decision
No. 3 75.)
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of 	units 	in the public 	school 	setting as 	intended by 	the
Legislature.
Accordingly, 	we 	find that: 	(1) 	BAFU has 	failed to
demonstrate 	that 	its proposed unit 	of bus 	drivers 	is more
appropriate 	than 	the 	existing 	operations-support 	unit
(Sweetwater): 	and 	(2) 	BAFU's 	"free choice" argument is not
supported by 	PERB precedent 	and 	is 	contrary 	to 	the 	Legislative
intent 	of 	EERA.
ORDER
The severance petition in Case No. 	LA-SV-123 	is hereby
DENIED.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Employer,
and
BUSDRIVERS ASSOCIATION FOR UNITY,
Petitioner,
and
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 99, AFL-CIO,
Exclusive Representative.
Representation
Case No. 	LA-S-123
PROPOSED 	DECISION
(7/17/97)
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Appearances: 	O'Melveny 	& Myers 	by Pamela 	Samuels 	and Anne
Garrett, 	Attorneys, 	for Los Angeles Unified School District;
Victor Wightman, 	Antonio Jose Cooke, 	and Les Amponsah, 	Attorney,
for Busdrivers Association 	for Unity; 	Geffner and Bush by Hope
Singer and Rebecca Katz-White, 	Attorneys, 	for Service Employees
International Union, 	Local 99, 	AFL-CIO.
Before Donn Ginoza, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
Busdrivers Association 	for Unity 	(BAFU) 	initiated this 	case
on September 19, 	1994, 	by filing a severance request 	to represent
bus 	driver 	classifications 	within the 	Los Angeles 	Unified 	School
District 	(District). 	BAFU seeks to sever two classifications,
light 	bus 	driver and heavy bus 	driver, 	from an established
operations-support 	unit 	of 	classified 	employees 	exclusively
represented by Service Employees 	International Union, 	Local 	99,
AFL-CIO 	(Local 	99). 	The District and Local 	99 both opposed the
petition. 	The 	Public Employment 	Relations Board 	(PERB or Board)

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found 	the 	petition 	to 	be 	timely 	filed 	and 	have 	sufficient 	proof
of 	support. 	(PERB Regulation 	sec. 	33700.)1
On March 	17, 	1995, 	PERB 	denied motions 	to 	dismiss 	filed by
the 	District 	and 	Local 	99 	and 	issued 	an 	order 	to 	show 	cause 	as 	to
BAFU. 	The 	administrative 	decision 	denied 	the 	District's 	and
Local 	99's 	motions 	to 	dismiss, 	rejecting 	claims 	of 	lack 	of 	timely
filing 	and 	lack 	of 	employee 	organization 	status 	by 	BAFU. 	Noting
that 	a 	previous 	severance 	request 	filed 	by 	BAFU 	had 	been 	earlier
dismissed by 	PERB 	on 	January 	25, 	1993 	(and 	affirmed 	by 	the 	Board
in 	Los 	Angeles 	Unified School 	District 	(1993) 	PERB 	Order No.
A d - 2 5 0 ) , 	PERB 	ordered BAFU to 	show cause 	for the 	existence 	of 	a
"prima 	facie 	change 	in 	circumstances" 	from 	those 	serving 	as 	the
basis 	for 	the 	previous 	severance 	request.2
1PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq. 	Section 	33700
provides 	in 	relevant 	part 	as 	follows:
33700. 	Severance Request.
(a) 	An employee 	organization may 	file 	a
request 	to 	become 	the 	exclusive
representative 	of 	an 	appropriate 	unit
consisting 	of 	a 	group 	of 	employees 	who 	are
already members 	of 	a 	larger 	established 	unit
represented 	by 	an 	incumbent 	exclusive
representative 	by 	filing 	a 	request 	for
recognition 	. . . .
(b) 	Whenever 	the 	conditions 	of
Government 	Code 	section 3544.1(c) 	exist, 	a
severance 	request 	for 	recognition 	or
intervention must be filed 	. 	. 	. 	with the
employer 	during 	the 	"window 	period" 	. . . .
2In 	1991, 	BAFU 	filed 	a 	request 	to 	sever 	a 	unit 	of 	bus
drivers 	from 	the 	same 	operations-support 	unit. 	A Board 	agent's
administrative 	determination 	to 	dismiss 	the 	request 	was 	upheld 	by
PERB 	in 	the 	1993 	order. 	The 	Board 	found 	that 	BAFU 	failed 	to 	show
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On July 24, 	1995, 	PERB determined that BAFU had satisfied
the 	requirements 	of 	the 	order 	to 	show cause 	and ordered a 	formal
hearing on the matter. 	Two pre-hearing 	conferences 	were 	held on
September 19, 	1995 and November 17, 	1995.3
The 	formal 	hearing commenced on February 26, 	1996 	in the
PERB Los Angeles 	Regional 	Office 	and continued for 	18 	days,
concluding on July 2, 	1996. 	The hearing was ordered closed on
August 	19, 	1996. 	With receipt of 	the 	final briefs on November
18, 	1996, 	the case was submitted.
FINDINGS 	OF 	FACT
The 	District 	is 	a public 	school 	employer within the meaning
of 	section 3540.1(h) 	of 	the Educational 	Employment 	Relations Act
(EERA) .4 BAFU is an employee organization within the meaning of
section 3540.1(g). 	Local 	99 	is an employee organization within
the meaning of 	section 3540.1(g) 	and the 	exclusive 	representative
of 	a unit 	of 	District 	employees within the meaning of
that 	the 	proposed unit 	was 	more 	appropriate 	than 	the 	existing
unit, 	and that 	no 	change 	in circumstances 	from those presented 	in
a previous 	severance 	request 	had been 	alleged which would have
justified a 	formal 	hearing. 	The previous 	severance 	request 	was
one 	filed by the 	Drivers Association 	for Responsible
Transportation 	(DART) 	in 1983. 	It 	sought 	to sever a unit of bus
drivers 	and other transportation classifications. 	The DART
request 	was 	denied after a 	formal 	hearing 	in which 	the 	hearing
officer 	ruled that 	the proposed unit 	was 	not 	more 	appropriate
than the 	established unit. 	(See 	Los Angeles Unified School
District 	(1985) 	PERB Decision No. 	HO-R-105.)
3As 	a result of 	these pre-hearing conferences, 	the parties
were 	limited to ten witnesses.
4EERA is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code.
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section 3540.1 (j). 	This bargaining unit 	is a traditional
operations- 	support unit, 	known within the District as 	"Unit 	C."
(See 	Sweetwater Union High School 	District 	(1976) 	EERB5 Decision
No. 	4.)
Community of 	Interest
A. 	Existing Unit 	Configuration within the 	District
The District, 	with its approximately 67,601 employees, 	is
the 	largest 	public 	school 	employer 	in the 	state 	by a wide
margin.6 Units 	other 	than operations-support 	include 	all
certificated less other group, 	other certificated, 	certificated
supervisors, 	instructional aides, 	office technical/business
services, 	trades/crafts, 	security, 	teaching assistants, 	and
classified 	supervisors.7
Classified 	employees 	are 	assigned 	among 	four 	operational
divisions, 	including School Operations, 	Facilities Management,
Business 	Services, 	and Information Technology. 	The bulk of
classified employees 	are 	employed within 	the 	Facilities
Management 	and Business 	Services 	Divisions. 	Business 	Services
includes 	the Transportation Branch, 	Food Services Branch, 	and
Purchasing Branch. 	Facilities Management 	includes 	the
Maintenance 	and Operations 	Branch. 	Unit 	C employees 	are
5Prior to January 1, 	1978, 	PERB was known as the Educational
Employment 	Relations 	Board.
6This 	is based on the 	PERB 	document Units 	in Place 	(May 	1,
1996). 	(San Ysidro School District 	(1997) 	PERB Decision No. 	1198
[judicial 	notice of 	PERB 	records].)
7See footnote 6, 	ante, 	for source.
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distributed primarily among the Maintenance 	and Operations, 	Food
Services, 	Purchasing, 	and Transportation Branches. 	Bus drivers
are 	employed within 	the 	Transportation Branch.
According to District 	figures, 	there 	are 	currently 	7,805
employees 	in the Unit 	C bargaining unit, 	distributed among 103
job classifications. 	Approximately 94 percent of all Unit 	C
employees 	are 	employed 	in 	the 	Maintenance 	and Operations 	Branch
(2,249), 	Food Services Branch 	(3,668), 	and Transportation Branch
(1,428) .8
Bus 	drivers, 	both light 	and heavy,9 and bus 	routing
assistants 	comprise 	the principal 	classifications 	in the
Transportation Branch. 	There 	are 	currently 	1,050 	light 	and heavy
bus 	drivers 	in the 	District.10 The 	Transportation Branch also
includes 	the mechanics who 	service 	the buses 	and other District
vehicles 	such as 	trucks.
Building and grounds workers, 	gardeners, 	window washers, 	and
office machine 	repair 	technicians 	comprise 	the 	principal 	job
classifications 	under 	the Maintenance 	and Operations 	Branch.
Cafeteria workers 	and 	food production workers 	comprise 	the
8The 	remainder are 	employed 	in 	the 	Purchasing Branch
(includes truck drivers and warehouse employees), 	Information
Technology Division 	(includes computer technicians), 	Schools 	and
Children Centers 	(includes 	housekeepers 	and stock clerks),
Reprographics Unit 	(includes offset machine operators), 	and
miscellaneous 	other positions.
9Light buses 	carry less 	than 72 	passengers. 	Heavy buses
carry 78 	to 84 passengers.
10This 	figure was based on the 	District's 	latest 	available
data 	reviewed at 	the 	time 	of 	the 	hearing.

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principal 	classifications under the 	Food Services 	Branch. 	Truck
drivers 	(heavy, 	medium and light) 	and stockworkers 	are 	the
principal 	classifications 	under 	the 	Purchasing Branch.11 The
majority of 	Unit 	C 	employees 	who drive 	District 	vehicles 	other
than buses 	are 	truck drivers 	under the 	Purchasing Branch, 	and
pest 	control 	technicians 	and 	other non-school-based 	employees
under 	the Maintenance 	and Operations 	Branch.
The 	Transportation Branch 	is 	headed by Antonio Rodriguez.
Enrique 	Boull't 	is 	the 	Deputy Director who 	has 	responsibility 	for
the 	school bus 	operations. 	Reporting to him are 	student
transportation 	supervisors who 	are 	regional 	managers. 	Twelve 	to
thirteen area bus 	supervisors 	report 	to 	these 	regional 	managers.
Area bus 	supervisors, 	of which there are approximately 63, 	have
direct 	supervisory responsibility 	for the bus drivers. 	Assistant
area bus 	supervisors 	and dispatchers 	report 	to 	the 	area bus
supervisors 	and are 	responsible 	for managing 	the 	day-to-day bus
operations.
B. 	Function, 	Purpose, 	and Job Duties of Bus Drivers
The 	District 	consists 	of 	approximately 900 	schools 	located
throughout Los Angeles 	County, 	with a total 	student 	enrollment
exceeding 	600,000. 	Approximately 	650 	schools 	are 	served by
school buses. 	Prior to the 	1970s, 	busing of 	students was
designed 	to 	transport 	students 	to 	and 	from schools 	located where
11Purchasing is 	a 	small 	branch with approximately 	250
employees. 	Truck drivers 	were 	recently transferred 	from the
Transportation Branch to 	the 	Purchasing Branch, 	signifying 	some
distinction by the District 	between the 	functions 	of 	transporting
students 	as opposed to supplies.

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students 	did not 	live 	in close proximity to their schools. 	This
type of busing, 	known as 	"non-programmatic" 	busing, 	no longer
exists 	in the District.
In 	1974, 	the 	level 	of busing increased dramatically as 	a
result 	of 	a 	desegregation 	lawsuit 	that 	resulted 	in a 	consent
decree, 	whereby the 	District 	agreed to 	transport 	students 	to
ameliorate racial 	imbalance 	in the 	schools. 	Subsequently, 	the
District 	created 	"magnet" 	schools, 	emphasizing special 	curricula,
as 	an alternative means 	to 	ameliorating racial 	imbalance.12 The
District 	provides busing of 	students 	for the magnet 	schools. 	In
addition, 	the 	District has 	traditionally provided busing 	for
handicapped students 	and others with special 	needs. 	The 	District
qualifies 	for, 	and receives, 	a substantial amount of 	state and
federal 	funding 	to 	support 	busing of 	students 	for desegregation
purposes 	and 	for transporting handicapped students. 	This 	type 	of
busing is 	known as 	"programmatic" 	busing.13 State 	and 	federal
funding 	for 	desegregation busing 	amounts 	to 	approximately 	$20
million per year.
The 	basic 	function of bus 	drivers 	is 	to transport 	students
in District 	buses 	to 	and 	from 	schools 	at 	the 	beginning and end of
the 	school 	day and to 	transport 	students 	to 	and 	from other
special 	events 	such as 	field trips 	and athletic 	events.14 Bus
12Twenty thousand students 	now attend magnet 	schools, 	and the
number is 	increasing.
13This 	is 	apparently due 	to 	its 	categorical 	funding.
14Light 	truck drivers 	in 	the 	Purchasing Branch operate 	an
employee 	shuttle 	service 	between 	certain District 	administrative
7

drivers 	also perform other 	functions 	ancillary to 	the
transportation of 	students. 	These 	include 	inspecting buses 	for
safety and mechanical problems, 	cleaning buses, 	and filling out
records.
Three 	reports must 	be 	submitted on a daily basis. 	The
vehicle condition report, 	required by law, 	is a checklist
indicating the mechanical 	condition of 	the bus. 	The 	daily bus
report 	indicates the hours of work, 	mileage, 	schools assigned,
activities handled, 	and number of 	students 	transported. 	The
tachograph is 	a graph indicating bus movements, 	including speed
and stops, 	calibrated by time. 	It 	is produced automatically by a
mechanism attached 	to 	the 	bus.
District 	trucks 	also 	carry tachographs. 	Truck drivers 	are
required daily to 	submit 	the 	tachograph, 	a time 	record, 	proof 	of
deliveries, 	and a vehicle condition report. 	The California
Highway Patrol 	(CHP) 	reviews 	both truck and bus vehicle 	condition
reports. 	Lack of 	compliance with CHP 	regulations 	on these
reports 	can cause 	termination of operations. 	Pest 	control
technicians 	and 	other Maintenance 	and Operations 	Branch workers
who 	are 	required to 	travel 	from school 	to 	school 	also 	fill 	out
reports 	indicating their day's 	activities.
Bus 	drivers 	begin their day by 	inspecting 	their buses,
following a 	list 	containing approximately 20 	items. 	The 	drivers
then pick up 	and deliver 	students 	to 	schools. 	The 	first 	shift 	in
sites, 	although the 	scope of this operation is negligible 	in
comparison to 	the 	student 	transportation operation.
8

9
the 	typical 	"split 	shift" 	day ends 	around 8:30 	to 	9:00 	a.m. 	The
drivers 	might 	then proceed directly to a 	special 	assignment, 	or
if without 	one, 	report 	to their area bus 	supervisor to 	see 	if 	any
assignment 	is available.
After returning students home 	in the 	afternoon, 	the drivers
complete 	their paperwork 	for 	the 	day and engage 	in 	light
cleaning. 	On a daily basis, 	as needed, 	they sweep out 	the bus
and clean the 	seats 	and windows. 	On a periodic basis 	(weekly or
bi-monthly), 	bus drivers have the outside of their buses washed
at 	one of 	the 	three bus yards 	that maintain a bus washing
facility. 	District trucks, 	too, 	are washed on a weekly basis.
When the 	occasion demands, 	bus 	drivers will 	have 	their buses
serviced 	for mechanical problems at 	one of 	the bus yards.
For non-critical 	items, 	the driver will 	fill out 	a work request
form and take 	the bus 	to a 	service yard at 	the 	end of 	the 	day.
Fueling of buses 	is 	done periodically at 	one of 	three 	locations.
Bus 	drivers 	exercise 	custody and 	control 	over 	students 	while
the 	students 	are being transported.15 Bus 	drivers 	are
responsible 	for maintaining discipline 	among the 	students 	who
ride 	the 	bus. 	Maintaining discipline 	over 	students 	and 	safely
driving the bus 	are 	tasks which involve added risks, 	such as
15Handicapped 	and 	developmentally 	disabled 	students 	who
require 	special 	attention 	are 	typically accompanied on 	the 	bus 	by
a District 	aide. 	The 	responsibility for 	safe 	transport 	of 	the
students 	nonetheless 	rests with the 	driver.

threats of violence by passengers 	as well 	as non-passengers.16
Encountering gang violence 	or 	threats 	of 	violence 	by riders 	and
non-riders 	along a bus 	route 	is 	not 	uncommon.17 Buses 	are
equipped with 	a 	two-way radio 	linked to 	the 	District 	to 	ensure
the 	safety of 	both drivers 	and passengers. 	Drivers 	are 	expected
to act promptly and decisively in crises, 	to administer
discipline 	rationally and firmly, 	yet 	with a positive 	and
courteous 	approach.
When a 	student violates bus 	rules, 	the driver must 	initially
make 	a determination as 	to the proper 	form of 	discipline 	to be
imposed.18 The 	driver 	is 	required to write up a 	report 	on a
disciplinary incident, 	a 	copy of which 	is 	delivered by the
student 	to his parents 	for 	signature 	and return. 	Disciplining of
students 	has 	the potential 	to provoke parent 	complaints. 	If 	the
parent 	requests, 	a conference with the driver will 	be held. 	The
District 	has 	a 	parent-complaint 	procedure 	dealing with 	complaints
against bus drivers. 	In isolated instances, 	discipline of the
student 	may even provoke 	threats 	of 	violence 	by the parent
16For example, 	one bus 	driver was physically attacked by a
special 	education student, 	after the parent 	failed to 	receive 	the
student 	at 	the drop-off point.
17Examples 	include rock throwing, 	egg throwing, 	finger signs,
and name 	calling at 	certain bus 	stops. 	While driving his bus,
one 	driver experienced gunfire 	with a bullet 	entering one 	of 	the
windows. 	An explosive 	device was 	set 	off 	in another driver's
bus. 	Drivers may carry students belonging to rival 	gangs. 	Other
Unit 	C employees, 	such as building and grounds workers 	and pest
control 	technicians who work during the night hours, 	are 	also
exposed to 	threats 	of 	criminal 	violence.
18Certain infractions, 	such as 	fighting on the bus, 	require a
three-day suspension 	from 	riding 	the 	bus.
10

against 	the driver.19 Some Unit 	C employees, 	such as 	cafeteria
workers, 	have daily contact with students but 	do not 	exercise
custody 	and 	control.
Apart 	from disciplinary matters, 	bus 	drivers 	occasionally
interact with parents, 	resolving such issues as 	errors 	in bus
assignments. 	They are expected to demonstrate multi-cultural
sensitivity 	in 	dealing with 	students 	and parents.
C. 	Qualifications, 	Requirements, 	and Work Rules
Qualifications 	for employment 	as 	a bus 	driver 	include 	a 	high
school 	education, 	valid California 	Class 	B 	commercial 	license
with a passenger endorsement, 	a 	CHP 	certified 	first 	aid
endorsement, 	a medical clearance, 	and completion of 	two written
tests. 	The District 	test 	requires mapping and routing skills.
The 	CHP 	test 	requires 	knowledge 	of 	state 	rules 	and regulations
for bus drivers, 	as well 	as 	first aid. 	To obtain the Class B
license, 	20 	hours of behind-the-wheel 	training and 20 	hours of
class 	time are required. 	To maintain the 	license, 	10 	hours of
in-service 	training 	is required per year, 	except 	in the 	fourth
year when 20 	hours 	is 	required. 	The 	CHP conducts 	the 	testing and
certification of 	drivers.20
Auto mechanics 	and 	truck drivers 	are 	also 	required 	to
maintain a Class B commercial 	license. 	Fifty-eight Unit 	C
19A parent 	threatened to kill 	one bus 	driver after he
disciplined 	the 	parent's 	child.
20By CHP 	regulation both bus 	drivers 	and 	truck drivers 	in 	the
District 	must 	avoid driving violations. 	Violations on a driver's
personal 	driving 	record 	can 	result 	in 	suspension of 	the
commercial 	license.
11

classifications 	require 	a 	driver's 	license 	(non-commercial 	or
commercial) 	including stock worker, 	copy machine operator, 	truck
driver, 	mechanic, 	pest control technician, 	and power equipment
operator. 	Truck drivers, 	pest control technicians, 	power
equipment 	operators, 	and window washers 	are 	also 	required to
provide 	a medical 	clearance.
Bus 	drivers 	are 	required 	to 	attend 	special 	training 	classes
covering gang awareness, 	safe riding practices, 	and pupil
management 	skills.21 They are 	trained to 	respond to 	emergency
situations, 	such as accidents, 	by stabilizing the vehicle,
assessing the 	situation, 	and administering 	first-aid. 	Truck
drivers 	receive 	training in driving, 	safety, 	and completing the
vehicle 	condition report. 	Food service workers 	receive 	training
in sanitation, 	food preparation, 	machine use, 	basic skills,
nutrition, 	supervision, 	and recordkeeping. 	Building and grounds
workers 	receive 	60 	hours 	in general 	job training.
The 	District 	issues 	a bus 	driver manual 	consisting of
approximately 160 pages. 	The manual 	sets 	forth numerous work
rules, 	notably, 	those contained in the 	sections on 	"Professional
Standards" 	and pupil management. 	It 	reminds bus drivers 	that
they are 	"a moving billboard" 	representing the 	District 	and warns
them that 	while 	in uniform and even when not 	transporting
students, 	they are 	scrutinized by the public. 	Violations 	of
these 	rules 	subject 	a driver 	to potential 	disciplinary action.
Other classifications 	are 	not 	issued manuals 	of 	this 	kind.
21A 42-hour pupil 	management 	course 	is 	required.
12

The manual 	also 	requires maintenance 	of 	a well-kept 	personal
appearance and courtesy to all 	citizens, 	parents, 	and the public
even if 	those 	individuals 	are 	angry or discourteous. 	It
prohibits fraternization with pupils, 	citizens, 	students,
parents, 	and school 	staff while 	the drivers 	are on duty and
advises 	them to 	refrain 	from entering 	liquor 	stores 	or even
multi-purpose 	(liquor and food) 	stores, 	so as not 	to arouse
suspicions 	about 	on-the-job 	alcohol 	consumption.
Bus 	drivers, 	and others 	required to maintain the 	Class B
license, 	are 	subject 	to testing for drug and alcohol use. 	The
testing 	is mandated by a 	federal 	law, 	which went 	into effect 	on
January 1, 	1995.22 The enabling statute 	and 	implementing
regulations mandate 	testing procedures 	(pre-employment, 	post-
accident, 	random, 	and reasonable suspicion), 	set an allowable
level 	for blood-alcohol 	content, 	prohibit 	any use of 	controlled
substances, 	and require 	removal 	of 	a positive-testing employee
from driving duties 	until 	completion of 	a 	rehabilitation
program.23 The 	regulations 	do not 	require 	termination of
employment 	based on a positive 	test, 	but 	in 	implementing 	the
22The 	Federal 	Omnibus 	Transportation Employee 	Testing Act
of 	1991 	is 	found at 	49 United States 	Code 	section 2717 	et 	seq.
Its 	implementing regulations 	are 	found at 	49 	Code 	of 	Federal
Regulations 	section 382.101 	et 	seq. 	The District was 	required
to have testing procedures 	in place as of January 1, 	1995.
(49 C.F.R. 	sec. 	382.115.)
23Code of Federal Regulations, 	sections 382.215, 	382.301,
382.303, 382.305, 382.307, 382.501, 382.503, 382.605, 383.107,
383.201.
13

federal 	law, 	the District 	has 	chosen to adopt 	a 	"zero tolerance"
policy that 	requires 	immediate 	employee 	termination.
Bus 	drivers 	are 	required 	to wear 	a 	uniform consisting of 	a
shirt, 	pants, 	jacket, 	shoes, 	and a badge. 	Mechanics and truck
drivers wear a 	similar uniform. 	Food service workers wear
aprons, 	hairnets, 	and gloves. 	Power equipment operators and pest
control 	technicians 	also wear uniforms.
D. 	Work Hours 	and Schedule
Bus 	drivers 	are 	employed 	for ten months each year, 	similar
to 	food 	service 	employees 	and 	certain other employees.24
Groundskeeper 	is 	one 	of 	the principal 	Unit 	C classifications
assigned 	to 	a 	12-month schedule.
The 	vast 	majority of 	bus 	drivers 	are 	employed part-time
because 	transporting 	students 	to 	and 	from 	school 	does 	not 	require
an eight-hour day. 	Their hours 	range 	from 4 	to 	6.9 	hours,
depending on 	the 	length of 	the 	routes 	they are 	assigned. 	Part-
time drivers 	work a 	split-shift 	with 	idle, 	non-paid time 	during
the middle 	of 	the 	day. 	Despite 	their being paid for only 	five
hours per day on average, 	bus 	driver starting and ending times
are 	10 	to 	12 	hours per day on average 	as 	a result 	of 	the 	split-
shift 	assignment.
24Eighty percent 	of 	the 	3,200-3,600 	food 	service 	workers
(e.g., 	cafeteria helpers, 	cafeteria workers, 	and food production
workers) 	are 	employed on a ten-month schedule. 	Bus 	drivers 	are
permitted 	to bid 	for a 	limited number of 	summer 	routes.
14

A proportionally small 	number 	of 	drivers 	are 	employed on a
full-time basis.25 The 	eight-hour day consists 	of 	the 	typical
split-shift, 	which typically includes multiple routes 	(i.e., 	high
school 	followed by elementary route) .26 This time 	is
supplemented on a 	daily basis 	with a 	shuttle 	route 	(non-student
transportation), 	special events driving, 	or other tasks. 	In the
past, 	the District 	had deemed it 	appropriate 	to maintain this
full-time work 	force 	commensurate 	with a minimum amount 	of
special 	events 	work projected over the 	entire year. 	Around
1991-92, 	the District, 	with Local 	99's assent, 	decided to phase
out 	the 	full-time positions 	through attrition as 	a 	cost-savings
measure.
The 	majority of 	building and grounds workers work a 	full-
time 	shift beginning at 	1:00 	p.m. 	and ending at 	9:30 	p.m. 	Part-
time 	building and grounds 	workers 	work between 	four and 	six hours
per day. 	Gardeners 	report 	at 	7:00 	a.m. 	and leave 	at 	3:30 	p.m.
Pest 	control 	workers work between 	3:00 	a.m. 	and 	11:30 	a.m. 	The
majority of 	food 	service 	employees 	work part-time.27 The
majority of 	Purchasing Branch employees 	work 	full-time.
25Eighty-five 	out 	of 	approximately 	five 	hundred 	light 	bus
drivers 	are 	full-time. 	Ninety to one hundred out 	of
approximately 	five-hundred 	fifty heavy bus 	drivers 	are 	full-time.
26Of 	the 	full-time positions, 	a small number are 	so because
the 	routes 	themselves 	require 	an eight-hour day.
27Cafeteria 	helpers 	and 	cafeteria workers work 	three 	to 	three
and one-half 	hours. 	They prepare 	lunches 	at 	the 	school 	sites.
Food production workers 	are 	employed 	full-time. 	They prepare
food 	in bulk at 	the District's 	two 	central 	food production
facilities.
15

Bus 	drivers 	typically begin 	their work 	day between 	5:30 	and
6:00 	a.m. 	They report 	to one 	of 	seven bus parking 	locations,
where 	the buses 	are parked when not 	in use. 	Some bus 	"yards" 	or
"barns" 	house only buses; 	others house buses as well 	as other
vehicles, 	such as delivery trucks and maintenance vehicles. 	The
second shift 	typically begins 	between 	1:00 	and 	2:30 	p.m. 	and 	ends
between 	4:30 	and 	5:00 	p.m.
Between the 	shifts or after the 	second shift, 	bus drivers
may receive 	assignments 	for 	a 	special 	events 	or Kindergarten
return trip. 	This work 	is assigned on a 	rotating basis 	among the
drivers. 	The 	split-shift 	is unique 	to 	the bus 	driver
classification.28
Bus 	drivers 	are eligible 	for overtime 	assignments. 	Such
opportunities 	arise 	from 	athletic 	events 	or weekend 	special
events 	such as 	fundraisers 	or recreational 	trips.
E. 	Seniority Rights 	and Retention of Unit Work
Since at 	least 	1979, 	the Transportation Branch has 	conducted
a yearly bid 	for bus 	and bus 	route 	assignments. 	The 	heavy bus
driver and 	light 	bus 	driver bids 	are 	conducted 	separately.
Bidding 	is 	based on 	seniority within 	the 	respective
classifications. 	The drivers 	convene 	at 	a central 	location at
which the 	seniority and route 	lists 	are posted. 	The bid also
28Cafeteria helpers 	and 	cafeteria workers 	have 	a break of
approximately one 	to 	one-and-one-half 	hours 	between 	early
preparation and service of 	the mid-day meal. 	Their work day,
including the break 	for the majority of 	these workers, 	is 	at most
five hours. 	In contrast, 	the work day for bus drivers, 	including
the off-time between split 	shifts, 	is approximately 11 hours.
16

allows 	the 	driver to 	select 	the parking 	location of 	the bus 	and
the 	supervisor.
A similar bid 	for vehicles 	and routes 	is 	conducted 	for 	truck
drivers 	and mechanics.
The 	District 	has 	had 	a 	longstanding practice 	of 	contracting
out 	some busing work to 	independent 	contractors. 	It 	currently
has 	contracts with three 	independent 	operators. 	The 	District 	has
utilized contract 	buses 	to provide 	a 	"buffer" 	for yearly
contraction or expansion of 	services.29 The 	District 	is 	limited
in 	its 	ability to hire 	additional 	drivers 	because 	it 	must 	fund
the purchase 	of 	new buses 	as 	well 	as 	the 	replacement 	of buses
retired 	from service. 	Purchases 	are made 	out 	of 	the 	District's
general 	fund or with 	state 	and 	federal 	monies.
Since at 	least 	1991, 	District 	statistics 	show a 	steady rate
of 	approximately 50 	percent 	of 	the bus 	routes being contracted
out. 	District 	testimony was 	that 	this 	rate 	dates 	back to the
1970s. 	This was 	contradicted by BAFU testimony that 	the 	level 	of
contracting out 	increased during 	the 	1980s 	from 	25 	percent 	to 	50
percent. 	A Local 	99 witness 	testified that 	there were 	400 	more
29The 	District 	contracts 	out 	other 	services 	performed by Unit
C employees, 	principally in the 	Food Services Branch where meals
are 	prepared by outside 	vendors. 	Food 	service 	contracting out
has 	increased as 	students 	have 	come 	to prefer name-brand 	fast
foods. 	Contracting out 	in the 	Purchasing Branch 	is 	limited to
specialized 	services 	not 	provided by District 	employees 	and 	for
trash removal 	where 	the 	District 	has 	difficulty maintaining 	trash
removal vehicles.
17

District 	drivers 	in the 	1980s. 	Since 	this 	testimony corroborates
the BAFU testimony, 	the BAFU testimony is 	credited.30
F. 	Supervision
Most Unit C employees, 	including bus drivers, 	truck drivers,
and 	food 	service 	employees 	are 	evaluated on 	a yearly basis.
Formal 	discipline 	is 	initiated by the 	supervisor's 	issuance
of 	a notice of unsatisfactory service. 	Appeals 	of 	disciplinary
actions 	(i.e., 	suspensions, 	demotions, 	and terminations) 	are
pursued within a merit 	system hearing procedure, 	rather than
through 	the 	grievance 	procedure 	of 	the 	collective 	bargaining
agreement.31
30There was 	no 	credible 	evidence 	suggesting any 	significant
decline 	in the 	total 	number of 	routes 	since 	the 	1980s.
Therefore, 	assuming the 	current 	level 	of 	1,100 	District 	drivers,
the 	number of 	District 	drivers 	in 	the 	1980s 	would have 	been 	1,500
and contract 	drivers would have been 	700 	(total 	of 	2,200 	routes
and drivers). 	Darrell Anderson, 	a bus driver opposed to
severance, 	corroborated the 	testimony of 	1,500 	District 	bus
drivers at 	its peak. 	Enrique Boull't, 	Deputy Director of the
Transportation Branch, 	testified that 	the District 	has 	never
employed more 	than 	1,200 	drivers 	since 	the 	late 	1970s. 	However,
according to bid-lists 	for the years 	1989 	and 1990, 	entitled
"Summer Bid List 	- 	Non-Driving Assignments 	Full 	and Part-time
Heavy and Light 	Bus 	Drivers," 	there were 	a 	total 	of 	1,297 	drivers
in 1989 	and a total 	of 1,276 	drivers 	in 1990. 	Thus, 	the accuracy
of Boull't's 	recollection is 	questionable.
31The notice 	states particular causes, 	such as 	inefficiency,
incompetence, 	neglect of duty, 	or absenteeism, 	as well as
descriptions 	of 	the particular 	incidents 	underlying 	the 	alleged
cause. 	This 	is 	followed by a 	"Skelly" 	hearing, 	where the
employee 	exercises 	his 	right 	to upper management 	review of 	the
charges. 	(See Skelly v. 	State Personnel Board 	(1975) 	15 Cal.3d
194 	[124 	Cal.Rptr. 	539].) 	If the reviewer believes that the
charges 	should stand, 	the 	charges 	are 	submitted to 	the Board of
Education 	for approval. 	The board's 	approval 	triggers 	the
employee's 	right 	to 	appeal 	and a 	hearing before 	a 	hearing officer
appointed by 	the 	three-member 	Personnel 	Commission. 	The 	hearing
officer's 	decision 	is 	subject 	to 	review 	(affirmance,
modification, 	or reversal) 	by the commission itself. 	The
18

There 	was 	evidence 	introduced by BAFU 	indicating 	that 	bus
drivers 	are 	scrutinized more 	closely 	than 	other 	classifications
within Unit 	C32 and 	that 	there 	is 	no uniform policy 	incorporating
principles 	of progressive 	discipline.33 "Overcharging" 	in
disciplinary actions 	(i.e., 	the alleging of 	additional but
specious 	infractions 	to buttress 	the 	central 	charge 	so as 	to
warrant 	the maximum penalty) 	has been shown in some 	cases.
Testimony of 	drivers 	suggested that 	the 	burden to prove 	innocence
in disciplinary matters 	is generally on the driver, 	who 	is often
without 	corroborating witnesses 	and must 	rebut 	the 	assertions 	of
supervisors, 	school administrators, 	students, 	and parents.
Drivers who 	sought 	to defend 	themselves 	in disciplinary actions
or to 	improve 	their working conditions 	are 	likely to 	suffer
harassment 	or 	retaliation by certain 	supervisors 	and 	it 	appears
that 	this 	is 	condoned at 	the 	highest 	levels 	of 	the 	Transportation
commission's 	decision 	is 	final 	and binding on the 	District.
Appeal 	rights 	do 	exist 	by way of 	administrative mandamus
proceedings 	in Superior Court.
32For example, 	certain infractions, 	such as leaving a child
on the bus, 	are 	considered extremely serious 	and subject 	a bus
driver to possible 	termination. 	There 	is no evidence 	that
failing to deliver a package 	of 	supplies 	on a 	truck 	route
subjects 	a truck driver to 	immediate 	termination. 	In addition,
the 	tachograph provides 	evidence 	to 	supervisors 	of 	the precise
movements of the vehicle, 	its 	speeds, 	and the timing of 	its
movements. 	Thus, 	suspicions may be raised by excessive 	speeds,
or distances 	travelled by the bus 	during the 	"splits," 	the 	latter
leading to 	the 	common 	charge 	of 	unauthorized personal 	use 	of 	the
vehicle.
33Local 	99 	negotiator 	Tom Newberry asserted 	that 	progressive
discipline 	is 	addressed in the 	evaluation provisions 	of 	the
contract. 	But 	nothing in the 	article 	suggests 	that 	it 	requires
corrective 	action prior 	to proceeding with a 	dismissal.
19

Branch. 	Disciplinary action, 	which could lead to termination,
commences 	for drivers 	having accumulated 	seven 	absences 	on 	a
rolling basis. 	There 	is 	no 	similar policy of 	disciplinary action
against 	building and grounds workers.34
During the 	1990s, 	BAFU claimed to have 	compiled statistics
to document 	the numbers 	of bus driver terminations. 	These
numbers 	were 	based on 	examining 	the 	bid 	lists 	ranking bus 	drivers
by seniority 	from year to year. 	BAFU concluded that 	400 	to 	500
bus 	drivers were 	terminated over a 	five-year period. 	A
comparison of 	the 	1989 	and 	1990 	summer bid-lists 	reflects 	that
approximately 85 	drivers 	on the 	1989 	list 	do not 	appear on the
1990 	list. 	This 	figure 	is 	close 	to the average yearly number of
terminations 	claimed by BAFU. 	However, 	since BAFU was unable 	to
provide 	clear and convincing evidence 	as 	to what 	proportion of
those 	were 	terminated 	for disciplinary reasons 	as 	opposed to
having left 	the District 	for other reasons, 	such as 	retirement,
resignation, 	or promotion, 	the number of 	terminated is obviously
less.
The 	District 	determined 	from 	its 	records 	that 	474 	drivers
from the 	1990 	list 	do not 	appear on the 	1996 	summer bid list, 	a
number nearly 	identical 	to 	that 	asserted by BAFU to 	constitute
34Food 	Services 	Branch 	Personnel 	Representative 	Martha
Palacios 	testified 	that 	the 	same 	absence 	policy applied 	to 	food
service workers, 	but 	this 	testimony was not 	credible based on her
demeanor and lack of 	specifics. 	She 	also 	testified that
discipline 	of 	food service 	employees 	in general 	was 	greater 	than
for Transportation Branch employees. 	But 	this was 	contradicted
by District 	figures 	regarding 	Personnel 	Commission hearings 	in
the 	Food 	Services 	Branch 	compared to 	the 	Transportation Branch.
20

terminations. 	Of these, 	it claimed, 	4 0 were terminated for
disciplinary reasons, 	168 resigned, 	137 retired, 	57 were
promoted, 	48 	exhausted their benefits while on leaves 	of 	absence,
11 abandoned their jobs, 	7 died, 	and 6 were terminated for
failure 	to maintain their bus driver certificates, 	as 	required by
state 	law.35 The 	District 	figures 	failed to 	account 	for drivers
who may have 	chosen 	to 	resign or retire 	under 	threat 	of
disciplinary charges. 	The 	District 	provided 	statistics 	showing
that 	the 	average 	number of 	bus 	drivers 	charged with discipline
warranting termination in the 	1990s was 	approximately 16 	per
year. 	This conflicts with, 	and calls 	into question, 	its
calculation of 	40 	terminations 	over 	the 	1990-1996 	period 	(i.e.,
average of 	six-to-seven per year). 	Because the District 	had
access 	to the 	records but 	failed to present 	a clear, 	documented
record, 	its 	figures 	cannot be 	fully credited either.36
At 	best, 	the 	record supports 	only a very rough approximation
of 	the 	number of 	bus 	drivers 	terminated or 	forced out 	by
threatened disciplinary action. 	That 	figure 	is 	around 40 	to 	50
drivers per year.37
35Eighty appeared under a 	different 	name 	due 	to 	a variant
spelling or change 	in marital 	status.
36In 1990, 	bus drivers were 	successful 	in demanding a
Local 	99 	general 	membership meeting 	specifically to 	address
terminations. 	It 	defies 	credibility that 	drivers would take 	such
action 	if 	terminations 	amounted to 	less 	than 	seven per year.
(See 	section C, 	infra, 	in discussion of negotiations history.)
37Of course, 	some terminations are justified. 	Local 	99,
however, 	claimed a 	50 percent 	success 	rate 	in formal 	challenges
to dismissals.
21

The 	fact 	that 	bus drivers perform safety sensitive 	jobs 	and
subject 	the 	District 	to potentially great 	legal 	liability 	for
malfeasance 	are 	factors 	corroborating 	the 	anecdotal 	and hearsay-
based opinions 	of 	the 	bus 	drivers 	who 	testified that 	bus 	drivers
are 	scrutinized, 	and hence disciplined, 	more 	severely than other
Unit 	C classifications. 	The 	record also 	supports 	a 	finding that
the 	Transportation Branch 	condones 	arbitrary discipline 	among
some of 	its 	supervisors.
BAFU complained 	about 	a 	high proportion of 	African American
bus 	driver terminations but 	failed to 	substantiate 	any racial
animus behind this 	rate.38
G. 	Compensation and Fringe 	Benefits
Compared to other major 	job classifications 	in Unit 	C, 	light
and heavy bus 	drivers 	are 	among the 	highest paid. 	Truck drivers,
mechanics, 	and skilled repair technicians 	have higher rates 	of
compensation. 	A part-time, 	light 	bus driver with high seniority
is 	capable 	of 	earning approximately 	$38,000 	per year.39 A
similar heavy bus 	driver may earn 	approximately 	$40,000 	per year.
District 	bus 	drivers 	received 	considerably better 	compensation
than drivers 	employed by private 	contractors.
38It 	was 	undisputed that 	60-75 	percent 	of drivers 	currently
are African American, 	suggesting that 	even if termination
decisions were 	completely race-neutral, 	a higher proportion of
African American 	drivers 	would be 	affected.
39Truck drivers 	average between 	$36,000 	and 	$40,000 	or more
per year. 	It would appear that bus 	drivers 	are 	capable of
earning 	comparable 	wages 	with overtime 	and 	extra-duty
assignments.
22

A majority of 	the 	terms 	and 	conditions 	governing 	the
employment of bus drivers, 	as 	set 	forth in the collective
bargaining agreement, 	are 	identical 	to 	those 	covering other
Unit 	C classifications. 	The 	significant 	provisions 	include
health and welfare, 	leave benefits, 	vacation, 	evaluation
procedures, 	and the grievance procedure. 	The contract 	is notable
for providing 	life-time 	coverage 	under 	the 	District's 	paid 	health
plans 	for employees 	eligible 	to receive 	a 	Public 	Employees
Retirement 	System/State 	Teachers 	Retirement 	System 	allowance 	for
age 	or disability and who 	have 	met 	the 	years-of-service
requirements of 	the 	contract.
A few provisions 	deal 	with 	specific 	classifications 	such 	as
the 	seniority-based bidding procedures 	(for bus 	drivers, 	auto
mechanics, 	and truck drivers), 	summertime cafeteria assignments,
uniform differentials 	for cafeteria workers, 	and pay
differentials 	for truck drivers with special 	duties.
H. 	Interchange with other Unit 	C Employees
As non-school based employees, 	bus 	drivers do not 	have 	any
significant 	contact 	with 	the majority of 	school-based Unit 	C
employees. 	After picking up their buses 	for the day, 	drivers 	are
on the 	road in their 	individual 	vehicles 	for 	the majority of
their 	duty 	time.40 Work-related 	interchange 	with other
classifications, 	such as truck drivers, 	mechanics, 	and building
and grounds workers, 	is also limited. 	Though it 	is necessary for
40A small proportion of drivers, 	who transport
developmentally disabled 	students, 	are 	accompanied by an
educational 	aide.
23

bus drivers 	to deliver their buses 	to mechanics, 	communication of
the problem 	is 	customarily done 	in writing or by verbal 	report 	to
a 	supervisor. 	Truck drivers may come 	into 	contact 	with bus
drivers 	at 	some 	fueling stations. 	Rest 	facilities 	for mechanics
and truck drivers 	are 	generally 	separate.
There 	is 	some 	opportunity 	for 	interchange 	in non-work
situations with truck drivers 	and mechanics 	at 	bus 	barns where
mechanics 	are 	assigned or at 	sites where 	the 	employees 	share
parking lots 	for their personal vehicles. 	At most 	schools, 	bus
drivers 	are permitted to use 	the 	school 	cafeterias 	for meals, 	but
many drivers 	do not 	choose 	to eat 	in them.
At 	the 	same 	time, 	work-related interchange between
classifications 	in Unit 	C generally 	is 	limited by the 	dispersed
nature of 	schools, 	specialization of 	function 	(e.g., 	bulk food
processing, 	pest control, 	and trucking operations), 	and
• differing shift 	times 	for the major classifications.41 Intra-
classification 	interchange 	is 	more 	limited 	for 	the 	majority of
Unit 	C employees 	because 	they are 	school-based.
Intra-classification 	interchange 	among 	light 	and 	heavy bus
drivers, 	truck drivers, 	and mechanics 	is enhanced by the 	limited
number of bus parking 	facilities 	as well 	as 	the 	opportunity 	for
all 	in the 	classification to 	congregate 	once 	or twice 	a year at
the 	route bids. 	Bus drivers 	also interact 	at 	the 	75 	area bus
supervisor locations, 	where 	the drivers 	turn in their paperwork,
41Two of 	the 	largest 	school-based classifications, 	building
and grounds workers 	and cafeteria helpers, 	have 	non-overlapping
shifts.
24

receive 	their mid-day assignments, 	and spend their 	idle 	time
between shifts.
Local 	99 	Negotiations 	History\Extent 	of 	Organization
A. 	Structure 	and Membership
Local 	99 	is 	the exclusive 	representative 	of 	three units 	of
classified employees 	in the District, 	including units 	for school
aides, 	operations-support, 	and non-certificated teacher
assistants 	(Units B, 	C, 	and F, 	respectively). 	Local 99 is also
the 	exclusive 	representative 	for 	classified units 	in 	the 	Los
Angeles 	Community College District, 	Torrance Unified School
District, 	and Lynwood Unified School District.
Approximately 4,938 	out 	of 	7,805 	Unit 	C 	employees
(63 percent) 	belong to Local 	99. 	Approximately 66.4 percent 	of
Transportation Branch employees 	are Local 	99 members.42
Membership 	levels 	for Unit 	C employees 	is 	higher than 	for any
other unit 	in the District. 	Presently, 	a majority of members
exists within each of 	the major Unit 	C 	job classifications.43
The Unit 	C contract 	provides 	for agency 	fees.
42These 	figures 	understate 	somewhat 	the 	total 	membership
since 	they are based on payroll 	deductions, 	which do not 	include
members who pay dues 	directly to Local 	99.
43Membership 	is 	not 	necessarily 	inconsistent 	with opposition
to Local 	99. 	A majority of 	bus 	drivers 	supported the 	severance
petition and yet 	a majority are also members of Local 	99.
Yudette Hayes, 	for example, 	is an ardent BAFU supporter but 	is
also a member of Local 99. 	It is a common, 	if mistaken, 	belief,
that 	non-membership may be 	a basis 	for a 	lesser quality of
representation 	in individual 	employee disputes. 	There 	is 	also
little 	financial 	disincentive 	to membership because 	of 	the
existence of 	agency fees.
25

Local 	99 	operates under a 	formal 	constitution and bylaws.
It 	is 	governed by an executive board of 	nine members 	elected to
represent 	the members 	in the 	four school 	districts. 	The
executive board elects officers, 	including a president, 	vice-
president, 	secretary, 	and treasurer. 	The executive board hires
an executive 	director.44 Local 	99 	holds monthly division
meetings 	and quarterly general 	membership meetings.
Walter Backstrom has 	been 	the 	executive 	director 	since 	1992.
Backstrom has 	the power to hire 	and 	fire 	the 	staff members 	of
Local 	99, 	subject 	to approval by the executive board. 	The
current 	staff of Local 	99 	consists of 	25 	employees. 	Three 	staff
members 	are 	assigned 	to work 	exclusively with Transportation
Branch employees. 	This number 	is greater than for the other
branches. 	Assistant 	Executive 	Director 	Paul 	Smith 	supervises
these 	employees 	and handles 	individual 	cases 	as well.
The District 	and Local 	99 	have negotiated 13 	Unit 	C
collective bargaining agreements, 	dating back to 	1978. 	Contract
negotiations 	are 	currently coordinated by Tom Newberry, 	a 	staff
member of Local 	99 	since 	1990.45 He was 	responsible 	for
negotiating Unit 	C's 	last 	four contracts. 	Newberry is 	the
spokesperson 	for a Unit 	C negotiating team. 	The 	team consists 	of
members 	elected 	from a 	representative 	group 	of major 	job
classifications 	in each of 	the various 	operational 	branches 	of
^Appointment 	by 	the 	governing board 	rather 	than 	election by
the membership 	is 	a 	common practice, 	particularly among Service
Employees 	International Union 	(SEIU or 	International) 	locals.
45Newberry also 	serves 	as 	chief 	negotiator 	for Units 	B 	and F.
26

the District, 	including Maintenance and Operations 	(three 	to 	four
representatives), 	Purchasing, 	Food Services, 	Transportation 	(one
to two representatives), 	and Information Technology.46 Team
members 	must 	be 	nominated 	from within one 	of 	the 	seven geographic
divisions 	in the District. 	Currently, 	the driver with the
highest 	number of petition 	signatures 	is 	elected. 	From 1992
through 	1996, 	Michael 	Bird has 	been the bus 	driver representative
on the 	team.
In the early 1990s, 	Local 	99 	implemented a written
bargaining survey to obtain Unit 	C employee views 	in advance 	of
negotiations. 	The written surveys have been replaced with a
computerized telephone 	survey. 	The 	survey results 	are 	tabulated
and presented 	to 	the 	negotiating 	team 	for 	review and discussion.
Labor/management 	committees were 	instituted by Local 	99
through the 	1992-94 	agreement. 	The 	committees 	consist 	of
representatives 	from 	the 	rank-and-file 	and District 	management.
They are 	organized 	around 	the 	major 	job 	classifications 	and 	are
intended 	to 	address 	issues 	in a more 	timely and 	informal 	manner
than through the negotiations process.47 The 	labor
46The 	elected negotiating 	team receives 	input 	from the 	staff
of Local 	99, 	who typically have knowledge of technical matters,
but 	it 	is 	the 	team that 	makes 	all 	final 	decisions 	on bargaining
proposals.
47Committees exist 	for food services, 	transportation,
mechanics, 	purchasing, 	maintenance and operations, 	trucking, 	and
information 	technology. 	Transportation 	is 	exceptional 	in 	that 	it
has 	six rather than 	five 	labor representatives. 	According to 	the
latest 	collective 	agreement, 	the 	committees 	are not 	to discuss
matters within the 	scope of 	representation, 	although it 	appears
that 	they do 	in practice.
27

representatives 	on 	the 	committees 	are 	appointed by the president
of 	Local 	99. 	Michael 	Bird and Howard Langey have 	been the bus
driver representatives 	for 	the past 	several 	years. 	The 	committee
has 	discussed such 	issues 	as 	lack of 	consistency in discipline,
assignment 	of winter recess work, 	and bidding procedures.
B. 	Representation Activity
Local 	99 	provides 	representation to 	enforce 	the provisions
of 	the 	collective bargaining agreement. 	The contract 	has 	a
grievance 	procedure 	culminating 	in binding arbitration. 	From
1987 	to 	1995, 	the District processed 159 grievances 	for
Transportation Branch employees, 	the majority of which 	involved
bus 	drivers. 	Local 	99 provided representation in all 	but 	four of
these cases. 	In the others, 	the employee represented himself, 	or
the 	record was unclear. 	The 	Transportation Branch had the most
grievances per capita.48
In its 	case, 	BAFU focused on bus 	driver complaints 	about
Local 	99's 	representation of bus drivers 	in appeals of
disciplinary actions. 	Since 	the 	disciplinary appeals procedure
is 	an extra-contractual 	forum, 	the 	duty of 	fair representation
does 	not 	attach to 	such proceedings 	under the applicable 	PERB
precedent. 	Nevertheless, 	Local 	99 provides representation in the
48The 	Transportation Branch accounts 	for 18 	percent 	of Unit 	C
employees. 	Over the 	same period, 	there were 	51 grievances 	in the
Food Services Branch, 	which accounts 	for 47 percent 	of Unit 	C
employees, 	and 191 grievances 	in the Maintenance and Operations
Branch, 	which accounts 	for 29 percent 	of Unit C employees.
District 	records 	show extremely high rates 	of 	representation
across 	the 	unit 	and extremely 	low rates 	of 	autonomous
representation.
28

appeals 	process 	for bargaining unit 	employees 	on 	a 	case-by-case
basis. 	Representation 	in disciplinary matters 	is 	supervised by
Hope 	Singer, 	an attorney in the 	firm of Geffner and Bush, 	which
provides 	a full 	range of 	legal 	services 	to Local 	99. 	Paul Smith
decides 	whether representation will 	be provided 	in 	individual
cases. 	Attorneys 	from the 	firm of 	Geffner and Bush as 	well 	as
Local 	99 	business 	representatives 	represent 	employees 	in
disciplinary appeals. 	Non-attorney staff 	receive 	training 	from
attorneys 	with respect 	to 	handling both 	Personnel 	Commission
hearings 	and grievances.
In a 	survey conducted of 	bus 	driver 	termination 	cases
handled by the 	firm of Geffner and Bush, 	close 	to one-half 	of
those 	represented were 	reinstated. 	The 	same 	survey 	indicated
that 	the 	length of 	suspensions 	imposed by the 	District 	were
reduced 	in nearly one-half 	of 	the 	cases 	when the 	bus 	driver was
represented.
District 	records 	establish 	that 	a 	relatively 	small 	number of
Transportation 	Branch disciplinary 	cases 	reach 	the 	Personnel
Commission level, 	approximately 3.5 per year. 	During the 	17 year
period from 	1978 	through 1995 	there were 	60 	hearings 	for 	the
Transportation Branch, 	compared with 	102 	for the Maintenance 	and
Operations Branch, 	and 17 	for the 	Food Services Branch.
Transportation 	and Maintenance 	and Operations 	per 	capita 	rates
for hearings 	are 	about 	the 	same; 	Food Services 	is much lower.
29

When 	random drug testing was 	imposed 	in the 	District,
Local 	99 	sought 	an amnesty period. 	Backstrom, 	Smith, 	and Singer,
representing Local 	99, 	met with Alan Tomiyama, 	Director of the
Transportation Branch, 	to propose 	the 	adoption of 	a grace period
and the 	opportunity 	for 	employees 	to 	rehabilitate 	or 	transfer 	to
another position. 	The District 	has 	refused to accommodate 	any of
Local 	99's 	requests. 	Local 	99 	has 	reluctantly acquiesced in the
District's 	"zero tolerance" 	termination policy.49 In a 	test 	case
before the 	Personnel 	Commission, 	Local 	99 	engaged in discovery to
ascertain whether 	the 	District 	was 	complying with 	the 	law's
requirements. 	It has 	also pushed for mitigation of discipline 	in
individual 	Personnel 	Commission cases.
The 	current 	contract 	for Unit 	C contains only one 	set 	of
provisions relating specifically to bus drivers, 	namely, 	the
bidding procedure.
Local 	99 	has 	implemented a computer-aided, 	tele-marketing
system to 	increase 	participation of 	members 	and to 	assist 	in
mobilizing them for organizational purposes. 	Local 	99
successfully organized opposition 	to 	recent 	legislation proposing
to cut 	state 	funding for desegregation busing. 	Local 	99 	also has
lobbied 	the 	state 	and 	federal 	governments 	for 	increased 	funding
for busing.
49In Los Angeles Unified School 	District 	(1996) 	PERB Decision
No. 	1181, 	Local 	99 	filed a unilateral 	change charge challenging
the District's 	right 	to terminate, 	but 	the 	charge was dismissed
as being untimely.
30

C. 	Complaints About 	Representation
In approximately 1990, 	bus drivers banded together to demand
a 	general 	membership meeting 	to 	address 	what 	was 	perceived to be
a high level 	of bus driver terminations, 	many of which became
final 	because 	Local 	99 	had allegedly 	failed to 	file 	employee
Personnel 	Commission appeals 	in a timely manner. 	The meeting,
held at 	Los Angeles High School, 	was 	the only general membership
meeting held during the 	1989-to-1992 	trusteeship. 	(See
section D, 	infra.) 	Local 	99 	offered no assurances 	in response
and closed the meeting over the 	opposition of 	those 	attending.
Shiral Nelson and Theresa Oceguerra 	are part-time, 	light bus
drivers, 	who were 	demoted 	from full-time 	to part-time 	along with
20 	others as a result of reductions 	in hours 	in 1990-91. 	They
complained 	that 	drivers 	with 	less 	seniority 	should 	have 	been
demoted 	instead. 	With assistance 	from BAFU member Victor
Wightman, 	Nelson filed a grievance over the matter. 	After the
District 	denied the 	grievance50, 	she 	then requested and received
Local 	99 	assistance. 	On behalf of other drivers, 	Nelson
requested that 	Local 	99 	seek 	an 	injunction based on 	the 	Education
Code 	preventing 	the 	District 	from 	contracting out 	mid-day 	and
50A District 	representative 	suggested at 	one 	point 	that 	the
case 	could be 	resolved 	if Wightman were 	removed 	from the 	case.
BAFU presented other 	testimony purporting 	to 	show 	that 	the
District 	attempted 	to 	deter 	employees 	from 	electing BAFU
representation. 	(But 	see 	Chaffey Joint 	Union High School
District 	(1982) 	PERB Decision No. 	202 	[employer may refuse to
process 	grievance 	where 	employee 	is 	represented by non-exclusive
representative].)
31

overtime assignments, 	as a way to preserve 	full-time positions.51
Instead, 	Local 	99 	filed a grievance 	and companion 	PERB unfair
practice 	charge 	challenging 	the 	reduction 	in hours 	that 	resulted
in the demotions.52 Local 	99 	convinced her that 	the 	arbitration
should be postponed pending 	the 	outcome 	of 	the 	PERB 	charge
because 	the 	issues were parallel. 	After losing the 	PERB case,
Local 	99 	declined to pursue 	the grievance 	to arbitration, 	but
gave Nelson no explanation as 	to why the 	case 	lacked merit.
Through Local 	99, 	Oceguerra processed her own grievance 	over
the 	same matter. 	Local 	99 withdrew the grievance but 	she, 	too,
was 	not 	provided with an 	explanation 	as 	to why the 	grievance
lacked merit.53
51See Barstow Unified School 	District 	(1997) 	PERB Decision
No. 	113 8b 	(merit 	system districts 	have 	authority under Education
Code to contract 	out pupil 	transportation).
52Judicial 	notice 	is 	taken of 	the administrative 	law judge
decision addressing 	this 	issue. 	(Los Angeles Unified School
District 	(1993) 	PERB Decision No. 	HO-U-544.) 	There the
administrative 	law 	judge 	found 	that 	language 	of Article 	IX
concerning hours 	together with 	the past 	practice 	of 	reducing
hours 	of 	bus 	drivers 	established that 	no unilateral 	change
occurred as 	a 	result 	of 	the 	reduction 	in the number of 	full-time
routes 	available 	for the 	1992 	bid. 	The 	administrative 	law judge
noted 	that 	Paul 	Smith did not 	specifically demand 	to 	bargain 	over
the 	reduction 	in hours.
53A common denominator among the 	grievants who 	lost 	their
full-time positions 	was 	that 	they all 	had time 	off 	due 	to
industrial 	injury. 	Apparently a discrepancy existed 	in 	the
District's 	seniority policy with respect 	to demotions, 	as 	opposed
to other purposes, 	such as route bidding. 	However, 	the contract
does not 	define 	seniority. 	Without 	a contractual basis 	for 	its
claim, 	the grievance 	appears 	to have 	lacked merit 	since 	the
grievance procedure 	requires 	the 	arbitrator to 	find only
violations 	of 	express 	terms 	of 	the 	agreement.
32

Testimony 	from bus 	drivers 	Jay Grisom and 	John 	Scates
suggested 	inconsistencies 	in 	the manner 	in which Local 	99
responded 	to 	requests 	for 	representation 	in disciplinary matters.
In separate cases, 	Local 	99 	refused representation at 	the 	initial
stage 	of 	a disciplinary appeal, 	in which Grisom later prevailed,
and after a District 	appeal 	to 	the 	commission of 	a hearing
officer decision favorable to Scates. 	In other cases, 	Local 	99
agreed to provide representation, 	including, 	in one of 	Scates's
matters, 	attorney representation to pursue 	a Superior Court
mandamus 	proceeding 	to 	reinstate 	employment 	following 	a 	favorable
Personnel 	Commission decision. 	In the 	second of 	Grisom's
appeals, 	Local 	99 	failed to file a timely appeal, 	resulting in
Grisom's 	dismissal. 	Local 	99 	offered no explanation 	in rebuttal.
BAFU asserted 	that 	Local 	99 	did not 	adequately advise
drivers of 	their options 	in disciplinary appeals, 	but 	there was
no concrete 	evidence 	to 	support 	this 	claim. 	Grisom testified
that 	he 	complained to Local 	99 	about 	a high proportion of African
American bus driver terminations but, 	as noted above, 	this
allegation was not 	substantiated. 	There were 	a number of
instances, 	including some noted above, 	where Local 	99 apparently
refused 	representation or 	abandoned 	a 	grievance 	or 	disciplinary
appeal 	without 	providing 	the 	employee 	an 	explanation 	for 	its
decision.
Local 	99's 	1995 	bargaining 	survey showed that 	66 	percent 	of
light 	and heavy bus 	drivers 	considered 	it 	to be 	doing a 	fair to
33

excellent 	job as 	opposed to 	34 	percent who 	considered 	its work to
be poor or very poor.54
D. 	Historical 	Background to 	SEIU Trusteeship
Beginning 	in 	1978 	and continuing 	through 	the 	late 	1980s,
Local 	99's 	chief 	executive 	officer was 	the 	secretary-treasurer.
This position was 	elected by the 	general 	membership by a vote
taken at 	a general 	membership meeting. 	General 	membership
meetings 	in the 	late 	1970s 	and early 1980s were 	held on a 	regular
monthly basis 	as 	prescribed by the 	constitution 	and bylaws.
District 	bus 	drivers 	attended general 	membership meetings 	in
large numbers 	-- 	between 	100 	and 200 	-- 	often disproportionate 	to
the 	size of the total membership 	(i.e., 	up to 90 percent of 	those
in attendance). 	They were an active and militant group.
Howard Friedman was 	the 	secretary-treasurer 	in 	1981. 	He was
viewed by bus 	drivers 	as 	opposing 	their 	interests. 	As 	chair 	at
the general membership meetings, 	he 	often resisted attempts by
bus 	drivers 	to place 	their 	items 	on the 	agenda.55
54The 	results were based on a 	rather 	limited response 	of 	less
than 90 	light bus drivers and less 	than 80 	heavy bus drivers.
55For example, 	in the early part of 	1981, 	Victor Wightman,
who would subsequently become 	a 	leader 	in BAFU, 	complained to
Local 	99 	about 	failing to make 	a 	list 	of 	stewards 	available 	to
bus 	drivers 	and organized 	support 	among drivers 	over 	the 	issue.
He 	complained to 	Friedman about 	the 	issue 	in a general 	membership
meeting. 	Friedman 	failed to address 	the 	issue 	to Wightman's
satisfaction. 	Wightman also organized support 	for Frank Loya, 	a
Local 	99 	representative 	for 	the 	Transportation Branch popular
among bus 	drivers, 	whom Friedman had sought 	to 	remove 	over
allegations 	that 	Loya 	doctored minutes 	regarding a matter
involving bus 	driver hirings.
34

In the 	summer of 	1981, 	in an apparent 	attempt 	to seize
control of the business agenda, 	the 	leadership of Local 	99,
headed by Friedman, 	cancelled 	several 	consecutive 	general
membership meetings 	and 	simultaneously proposed 	to 	amend 	the
constitution 	and bylaws 	so 	as 	to 	eliminate 	the 	monthly general
membership meetings 	in favor of 	one 	annual 	general 	membership
meeting.56 Any amendment 	to 	the 	constitution and bylaws 	at 	that
time 	required a 	two-thirds 	majority vote by the 	membership 	at 	a
duly noticed general 	membership 	meeting.
Without 	any apparent 	textual 	authority 	for 	its 	action,
Local 	99 	conducted the vote on the 	amendments by mail 	ballot
rather than by 	in-person vote.57 Wightman and Jules 	Kimmett, 	two
current 	leaders of BAFU, 	went to the offices of Local 	99, 	with
56Wightman began 	leafleting 	in 	opposition to 	the 	cancellation
of meetings. 	Wightman, 	Frank Loya, 	Jules Kimmett 	(a current BAFU
member), 	and several 	others undertook to organize employees 	and
also 	retained 	an 	attorney 	to 	demand 	reinstatement 	of 	the
meetings. 	As a result of posting the 	leaflets, 	Wightman was
reprimanded by 	his 	supervisor 	for 	posting 	unauthorized 	union
material. 	Friedman 	initiated the 	call 	to Wightman's 	supervisor,
requesting that 	the 	leaflets 	be 	removed. 	Wightman persisted 	in
demanding his 	right 	to 	leaflet 	and as 	a 	result 	termination
proceedings were 	instituted against 	him. 	He 	successfully
challenged the 	dismissal 	and was 	reinstated. 	Wightman 	filed an
unfair practice 	charge 	challenging the District's 	conduct, 	but
the 	hearing officer 	in a 	final 	decision 	found that 	the 	removal
was 	justified because Wightman was 	not 	officially a 	steward at
the 	time he posted the leaflets.
57Wightman 	alleged in 	PERB 	unfair practice 	charges 	that
Friedman had based his 	authority solely on 	the 	assent 	of 	John
Sweeney, 	President 	of 	the 	International. 	Wightman also alleged
that 	the 	executive 	board ruled Loya 	ineligible 	to be 	seated on
the 	board 	despite 	being 	elected by his 	division's 	membership 	and
made 	similar 	rulings 	against 	the 	candidacies 	of Wightman and
Kimmett 	(one 	of 	the 	constitution and bylaws 	changes 	adopted
restricted board membership 	to 	active 	employees, 	and Loya had
retired).
35

the 	intention of 	intervening 	in the ballot 	count. 	Wightman
physically removed ballots 	in 	an apparent 	act 	of 	civil
disobedience. 	Police 	responded to 	the 	scene 	and arrested
Wightman.
The 	motion 	to 	amend 	the 	constitution and bylaws 	also
included other changes, 	including a change 	in the 	article on
amendments 	by allowing 	amendments 	to 	be 	originated by 	a majority
vote 	of 	the 	executive board or by a petition of 	25 	percent 	of 	the
membership. 	Ratification of 	amendments was 	to be by mail
balloting or at 	a 	specially called meeting, 	rather than at
general membership meetings. 	The 	structure of 	the union with
functioning divisions was 	emphasized, 	reflecting a
decentralization of 	the participatory aspects 	of 	the 	union.
Division meetings 	were mandated to 	replace 	the 	regular general
membership meetings. 	A provision permitting executive 	board
action to 	be 	self-implementing on behalf 	of 	the 	union 	reflected a
centralization of 	executive power. 	The 	amendments were 	approved.
In the mid-1980s, 	Friedman was 	replaced in the position of
secretary-treasurer by Bill 	Price. 	Despite 	being a bus 	driver,
Price 	was 	viewed by many bus 	drivers 	as 	continuing Local 	99's
opposition to bus 	driver 	interests.
In 1989, 	the 	International 	took control of Local 	99 	through
its power of 	trusteeship, 	following a trial 	and findings of
financial 	indiscretions 	and an 	inability of 	the 	leadership 	to
govern. 	Membership was 	also 	found to be 	falling. 	During the
trusteeship, 	governance 	through the 	constitution and bylaws was
36

suspended, 	as were general membership meetings. 	The
International 	installed a board of 	trustees, 	including Walter
Backstrom and several 	others. 	The 	trustees 	replaced the 	staff
with their own selections. 	Price was 	removed 	from his position
as 	secretary treasurer and Local 	99 	changed 	the 	existing
constitution and bylaws, 	replacing 	the 	secretary-treasurer with
the executive director, 	who was 	to be 	appointed by vote of 	the
executive 	board.
These 	changes were 	the 	impetus 	for the 	formation of 	Local 	99
Members 	for Union Democracy. 	Members 	of 	this organization were
later 	instrumental 	in 	forming BAFU. 	The 	trusteeship was 	ended in
November 1992, 	with the holding of elections. 	Since 	1992,
Local 	99 	has 	ceased the practice 	of 	electing negotiating team
representatives 	at 	general 	membership meetings.
As 	a 	result 	of 	the 	trusteeship and an 	infusion of 	financial
support 	from the 	International, 	membership 	in Local 	99's units 	in
the 	four 	school 	districts 	increased 	from 	approximately 	6,000 	to
18,000.58 Resources 	from agency fee payers 	across 	Local 	99's
three units 	in the 	District 	were 	also 	added as 	a 	result 	of 	a
negotiated 	agreement 	with 	the 	District 	and 	successful 	campaign 	in
the 	late 	1980s.59 Membership 	in the 	bus 	driver classifications
increased 	to 	a majority during 	the 	same 	period.
58This 	includes 	members 	from the 	new teaching 	assistants 	unit
in the District, 	which Local 	99 organized in 1988.
59A total 	of 	28,000 	employees within the 	four 	school
districts 	are 	currently represented by Local 	99.
37

E. 	Emergence 	From Trusteeship 	and Subsequent 	History
The 	emergence 	of 	Local 	99 	from trusteeship 	coincided with
the District's 	$400 	million financial 	deficit 	in 	1990-91. 	Due 	to
the 	1990-91 	fiscal 	crisis, 	the District passed resolutions 	in
that 	year adopting a 	3 	percent 	retroactive pay cut 	(later
implemented through furloughs). 	The most powerful 	exclusive
representative, 	United Teachers 	- Los Angeles 	(UTLA), 	chose to
preserve 	its 	position by 	advocating 	the 	elimination 	of 	4,000
classified positions. 	Local 	99 	adopted the 	strategy of 	opposing
the 	layoffs 	in exchange 	for wage 	cuts 	implemented 	in a
progressive 	fashion 	so as 	to 	impose 	the 	smallest 	cuts 	on 	the
lowest paid unit 	employees. 	The District 	and Local 	99 	bargained
to 	impasse 	in November 1991. 	They reached agreement 	in January
1992 	for the 	1991-92 year. 	In this agreement, 	Local 	99 accepted
the 	reductions 	in exchange 	for District 	assurances 	to 	forgo
layoffs 	and graduate 	the pay cuts. 	The 	contract 	for 	1991-92 	was
ratified by the 	entire membership of 	Local 	99. 	Salary reductions
were 	continued by agreement 	of 	the 	parties 	during the 	1992-93 	and
1993-94 years. 	Beginning in the 	1994-95 year, 	the District
restored the 	salary schedule 	to 	its pre-reduction rates.
At 	the present 	time, 	Local 	99 views 	school 	decentralization
and 	school 	reform as 	the principal 	threats 	to the unit.
Decentralization of 	decisionmaking, 	with 	individual 	schools
having greater 	control 	over matters 	which 	could 	affect 	classified
38

service, 	is 	seen as 	eroding the District-wide benefits 	and job
security 	for which Local 	99 	has bargained.60
School 	reform 	is 	fueled by the 	public 	perception 	that 	school
districts 	in 	California 	are 	underfunded and must 	be 	required 	to
perform more 	efficiently with 	fewer dollars. 	Local 	99 	desires 	to
be 	"pro-active" 	in this movement 	by supporting 	initiatives 	that
coincide with the goals 	of 	labor, 	such as mentoring programs 	for
youth 	in 	job 	training programs.
BAFU Extent 	of 	Organization
A. 	Structure 	and Membership
As previously noted, 	BAFU was 	formed 	in 1989 	out 	of 	a 	core
of 	former members 	of 	Local 	99 	Members 	for Union Democracy.61
Local 	99 	Members 	for Union Democracy's principal purpose was 	to
oppose 	the 	centralization of 	authority within Local 	99 	that
occurred as 	a result 	of 	the 	trusteeship. 	Principal 	among these
changes was 	the 	replacement 	of 	the 	elected 	secretary-treasurer
with the 	appointed executive 	director. 	Bus 	drivers 	John Scates,
Jose 	Cooke, 	and Victor Wightman 	formed 	the 	core 	group 	of 	BAFU and
they continue 	to be 	active.62
BAFU is 	a 	loosely organized entity. 	An informal 	list 	of
members 	is 	kept 	but 	there 	are no 	formal 	requirements 	for
60Local 99 	has 	actively opposed recent 	efforts 	to divide 	the
District 	into 	smaller districts.
61BAFU's 	previous 	severance 	request 	was 	originally 	filed 	in
1991 under the name of 	(Local 	99) 	Members 	for Union Democracy,
before 	BAFU substituted 	its 	name.
62All 	have been 	terminated 	from the 	District. 	Scates 	and
Cooke 	are 	still 	pursuing legal 	actions 	to be 	reinstated.
39

membership. 	There 	are no formal 	officers. 	A constitution and
bylaws were prepared when 	the 	group 	formed but 	they do 	not
strictly govern the 	affairs 	of 	the 	organization. 	No dues 	are
required of members. 	BAFU receives 	income 	in the 	form of
voluntary contributions 	from its members. 	Approximately 	five 	to
six meetings 	are 	held each year on an 	irregular basis, 	typically
at a member's home, 	at schools, 	or other public gathering places.
BAFU 	is 	governed collectively through 	its 	core 	group 	of
approximately 35 	members. 	BAFU counts 	approximately 	600 	total
members 	and 	supporters.63 BAFU communicates 	with members 	through
flyers 	and a 	telephone-banking system. 	It maintains 	a post-
office box, 	but 	has no office or paid staff.
B. 	Representation Activity
BAFU has 	provided representation 	assistance 	to bus 	drivers
in the disciplinary appeals process 	and an occasional 	grievance.
No 	records were 	kept 	as 	to 	the number of 	drivers 	represented or
the 	level 	of 	success 	achieved by such drivers 	as 	compared to 	that
achieved by Local 	99. 	Representation has mainly consisted of
providing 	counsel 	and advice 	to 	drivers 	concerning 	strategy and
63This 	figure 	is based on a minimal 	level 	of participation,
in 	some 	cases 	as minor as making a 	contribution to 	the
organization. 	It 	is 	also close 	to the bare majority required for
proof 	of 	support 	of 	the 	severance 	request. 	On cross 	examination,
BAFU witnesses 	claimed confidentiality with respect 	to 	the 	names
of members, 	fearing retaliation by the District 	and Local 	99
based 	on 	their participation 	in BAFU and 	the 	severance 	petition
effort. 	The 	undersigned did not 	compel 	the witnesses 	to provide
names 	because 	the 	record does 	contain 	some 	evidence 	of
retaliation 	(e.g., 	Nelson, 	Scates, 	Cooke, 	and Oceguerra). 	Other
means 	to 	test 	the 	credibility of 	the witnesses 	were 	available 	and
so 	the 	right 	of 	cross-examination was 	not 	significantly
compromised. 	BAFU's 	figures 	as 	to membership are 	credited.
40

options within the 	disciplinary appeals process, 	as 	opposed to
formal representation. 	Kimmett, 	a former Local 	99 	steward,
represented Scates, 	Cooke, 	and Wightman in disciplinary appeals.
Wightman provided 	advice 	and 	counsel 	to 	approximately 	ten
employees over the course of ten years. 	In some cases, 	he
appeared at 	"Skelly" 	hearings 	and was 	successful 	in having some
of 	the 	charges 	dropped.
Scates, 	Wightman, 	and Cooke were all 	stewards 	for Local 	99
for brief periods 	of 	time. 	They were 	all 	associated with Frank
Loya, 	who was 	removed by Howard Friedman.
Scates, 	together with other BAFU members, 	organized a group
of 	approximately 14 	bus drivers 	facing termination, 	who believed
that 	Local 	99 	failed to provide 	adequate 	representation. 	A
meeting with a local 	legislator, 	Assemblyman Curtis Tucker, 	was
held 	in 	1990 	that 	included the 	superintendent 	and 	a member of 	the
Board of 	Education. 	The 	drivers persuaded Tucker that 	the
terminations were unjust, 	and through Tucker's 	appeals 	to certain
Board of 	Education members, 	six of 	the drivers were 	reinstated.
Scates 	was 	hired by Backstrom as 	a 	consultant 	to work on
issues 	related to bus 	drivers, 	shortly after Backstrom joined
Local 	99 	in 1991. 	Scates observed the 	1991-92 	contract
negotiations 	meetings.64 Backstrom 	removed 	Scates 	from his
64Scates was 	also a bus 	driver representative 	on the 	Local 	99
bargaining team 	in the 	1980s. 	He 	claimed that 	Price 	tabled 	items
he had raised on behalf of bus 	drivers, 	although he provided no
specifics.
41

position because 	Scates 	attended a meeting at 	PERB 	in 	1992
involving BAFU's 	first 	severance petition.
Shiral 	Nelson 	supported 	the 	first 	BAFU 	severance 	petition
beginning 	in 1992. 	She was 	elected to 	serve as 	the bus 	driver
representative 	on the Local 	99, 	1991-92 	negotiation team and was
appointed 	to 	the 	first 	Transportation 	Branch 	labor/management
committee. 	She 	is 	ranked seventh or eighth in terms 	of 	seniority
among light bus drivers. 	During the 	1991-92 negotiations, 	the
bus drivers, 	through Nelson, 	presented a list of 25 desired
items. 	Chief among them, 	in Nelson's view, 	was 	the demand for
protections 	against 	further District 	contracting out 	of 	bus
routes, 	especially the mid-day assignments which could ensure
potentially more 	full-time positions.
There was 	conflicting testimony on how these 	matters 	were
addressed. 	Nelson 	claimed that 	these 	items 	were 	tabled and never
addressed during 	the 	negotiations. 	Newberry claimed 	that 	the
team 	first 	referred 	the 	items 	to 	the 	Transportation Branch
labor/management 	committee 	because 	he 	questioned whether 	they had
broad-based 	support.65 He 	claimed 	that 	the 	items 	returned and
that 	he 	argued against 	some, 	particularly the proposal 	for the
removal of the no-strike clause, 	which affected the entire unit.
Newberry believed 	it 	was 	critical 	to be 	unified 	in 	the 	defensive
two-point 	strategy 	for the 	1991-92 	negotiations 	and to 	avoid any
cost-increasing proposals. 	Newberry's 	testimony 	is 	credited to
65Nelson was 	elected to 	the 	team on the basis 	of 	25 	votes 	at
a 	general 	membership 	meeting.
42

the 	extent 	that 	there was 	some 	discussion of 	the proposals.
Nevertheless, 	the team, 	led by Newberry, 	did not 	simply defer
them to a later time, 	but 	rejected them.
Nelson was 	removed 	from 	the 	negotiation 	team 	and 	the
labor/management 	committee by Local 	99 	staff 	after 	it 	discovered
that 	she 	attended a 	PERB meeting 	involving 	the 	1991 	BAFU
severance 	petition.66 Theresa 	Oceguerra 	was 	removed 	from 	the
labor/management 	committee 	at 	the 	same 	time 	as Nelson.
C. 	Other Autonomous 	Representational Activity
Darrell Anderson has been a District 	bus driver 	since 	1982.
He became 	active 	in Local 	99 beginning in 	1988. 	He was 	elected a
steward 	in 	1989 	and 	later 	an 	executive 	board member 	for 	a 	term
beginning 	in October 	1992, 	but 	abbreviated by his 	resignation 	in
December 	1994. 	He was 	elected a 	1991-92 	bargaining team member
as an alternate representative to Nelson. 	Anderson, 	who opposes
the 	severance petition, 	is dissatisfied with the 	level 	of
commitment 	by 	the 	executive 	board 	and with 	the 	quality 	of
Local 	99 	staff 	service to the employees. 	Bus drivers 	frequently
complain 	to 	him about 	the 	lack of 	responsiveness 	by the 	staff 	to
employee 	requests 	for assistance. 	Anderson believes 	that 	after
bus 	driver Jonathan Newsome was 	removed as 	Local 	99
Transportation Branch representative, 	the quality of 	Local 	99
assistance 	during 	the 	bus 	route 	bidding 	sessions 	declined
significantly. 	Anderson credits Local 	99 	with fighting for more
66Nelson filed 	an unfair practice 	charge 	challenging 	her
removal.
43

stewards 	to 	represent bus 	drivers 	and for obtaining agency fees
He 	finds 	fault 	with 	its passivity with respect 	to 	the 	District
and 	its 	emphasis 	on 	fighting 	internal 	opposition.
Anderson was 	active 	in mobilizing opposition 	to 	Local 	99's
bargaining position 	that 	resulted 	in 	the 	1991-1992 	agreement.
Anderson 	accused Backstrom of 	publicly misrepresenting 	rank-and-
file 	support 	for 	the 	furloughs prior to 	the 	tentative 	agreement
and of 	failing 	to 	inform the 	membership 	that 	the 	furlough
agreement was 	for two years, 	not one.67 The 	1991-92 	tentative
agreement 	was 	approved 	and 	recommended 	to 	the 	membership 	by 	the
negotiating 	team 	and 	subsequently 	ratified by 	the 	membership.
As 	the 	1992-94 	agreement was 	about 	to expire, 	Anderson
mobilized bus 	drivers 	to attend a June 	1994 	general 	membership
meeting at 	Monroe High School. 	He 	desired to 	implement 	a
requirement 	for advance 	notice 	for discussion of 	tentative
agreements 	and an 	in-person, 	general 	membership 	ratification
vote, 	hoping to correct what 	he perceived as a procedural 	means
for Local 	99 	leadership to press 	for approval 	of 	tentative
agreements. 	Anderson was 	successful 	in having his motion put
before 	the membership and carried. 	But 	after leaving the 	room,
Newberry 	insisted that 	the 	motion 	lacked opportunity 	for debate
and persuaded the meeting chair to entertain debate. 	The 	chair
agreed, 	and as Anderson protested, 	order broke down. 	The 	chair
67Anderson 	accused Backstrom of 	sending 	a 	letter 	to
Sacramento announcing Local 	99's willingness 	to accept 	the
1991-92 	District 	furlough proposal 	prior 	to 	ratification.
Backstrom gave 	a vague denial 	of 	the 	allegation. 	Anderson's
testimony was 	more 	credible.
44

then 	closed the 	meeting 	and 	the 	motion was 	never 	implemented.
Anderson 	subsequently ran for president 	in 	1995, 	losing by
approximately 400 votes 	out 	of 	3,000.68
Anderson worked with Jonathan Newsome, 	a 	confederate 	in
Local 	99 	Members 	for Union Democracy. 	Newsome 	objected to 	the
lack of member access 	in Local 	99 	during the trusteeship. 	As a
Transportation Branch business 	representative, 	he was popular
with the 	drivers. 	He was 	dismissed 	from his 	Local 	99 position by
Trustee Bob Muscat, 	apparently without 	explanation. 	Newsome 	ran
for president 	of 	Local 	99's 	executive 	board against 	Backstrom 	in
1992. 	Backstrom declared Newsome 	to be 	ineligible because 	he 	did
not 	have 	two years 	job tenure 	in the 	classification he 	relied
upon to qualify his 	candidacy.69 In the past, 	the 	International
had waived 	this 	requirement.
Efficiency of 	Operations
The 	creation of 	an additional 	bargaining unit 	would 	impose
additional 	costs 	on the 	District 	in the 	form of 	an additional
member on the personnel 	staff, 	administrative 	staff 	time
associated with the 	administration of 	an 	additional 	contract,
employee 	released time 	for the 	new exclusive 	representative,
reproduction costs, 	and the 	imposition of 	additional
68Only 3,000 	out 	of 	18,000 	ballots were 	returned.
69Backstrom 	testified 	that 	Newsome 	did not 	qualify 	to 	run 	for
president 	because 	he 	collected 	invalid 	signatures. 	Anderson's
testimony that Newsome was 	told he was 	ineligible 	is 	credited.
Backstrom was 	unable 	to 	recall 	many 	seemingly relevant 	matters
during his testimony, 	and thus 	it 	is unlikely that his memory as
to these 	events was 	any more 	accurate.
45

responsibility on 	school 	principals 	and others 	to 	administer 	the
additional 	contract.70 Joanna Barnett, 	District 	Labor Relations
Representative, 	currently has 	responsibility for administering
the 	collective 	bargaining 	agreements 	for 	three 	classified units
in the District, 	including Unit 	C, 	and for developing contract
proposals 	in collaboration with administrators. 	Negotiations,
which 	typically begin between 	January 	and March 	of 	each year,
continue 	for approximately nine months. 	They require 	a
bargaining 	session weekly.71
UTLA is 	currently the most 	powerful 	exclusive 	representative
in the District. 	During the 	1990-91 	fiscal 	crisis, 	it 	created
extreme 	divisiveness 	within 	the 	ranks 	of 	organized 	labor 	in 	the
District 	by proposing layoffs 	in the 	classified units. 	In
response, 	the 	classified bargaining units 	joined in a 	coalition
to defend against 	UTLA's 	strategy.72 The 	coalition 	sought 	and
obtained 	from the 	District 	"most 	favored nation" 	treatment, 	which
guaranteed that 	whatever 	raises 	were 	granted 	to 	the 	certificated
70Collective 	bargaining 	is 	a 	state-mandated 	service 	on 	local
government 	and 	therefore 	its 	costs 	are 	subject 	to 	reimbursement
pursuant 	to Article XIIIB, 	section 6 	of the California
Constitution.
71Barnett 	is 	one 	of 	two District 	staff members who 	assume
these 	duties 	in negotiations.
72Judicial 	notice 	is 	taken of 	negotiations 	history described
in Los Angeles Unified School District 	(1995) 	PERB Decision No.
1079.
46

unit 	would be 	replicated 	for 	the 	other units.73 This 	provision
continues 	in the 	latest 	agreement.
DISCUSSION
Section 3545(a) 	of 	the 	EERA sets 	forth the 	following
criteria 	to be 	considered 	in determining the 	appropriate 	unit:
In each case where 	the appropriateness 	of 	the
unit 	is an issue, 	the board shall 	decide 	the
question on the basis 	of 	the 	community of
interest 	between and among 	the 	employees 	and
their established practices 	including, 	among
other things, 	the extent to which such
employees 	belong to 	the 	same 	employee
organization, 	and the effect of 	the size of
the unit 	on the 	efficient 	operation of 	the
school district.
Applying 	this 	statutory 	standard 	in 	Sweetwater Union High
School District, 	supra, 	EERB Decision No. 	4, 	PERB recognized
three 	appropriate units 	of 	classified employees under the 	EERA:
instructional aides, 	office-technical and business 	services, 	and
operations-support 	services. 	PERB has 	deemed these units 	to be
"presumptively 	appropriate." 	(Foothill-De Anza 	Community 	College
District 	(1977) 	EERB Decision No. 	10.) 	In severance cases, 	a
fourth factor, 	the history of negotiations 	is 	examined in
addition to 	the 	three 	factors 	set 	forth in the 	statute.
(Livermore Valley Joint Unified School 	District 	(1981) 	PERB
Decision No. 	165.)
73UTLA responded by seeking a raise 	so 	large 	as 	to prevent
compliance with the 	"most 	favored nation" 	clauses 	in the 	other
contracts. 	(Ibid.)
47

-
In Compton Unified School 	District 	(1979) 	PERB Decision
No. 	109, 	PERB held that 	a variant unit will not be granted unless
it 	is more 	appropriate 	than the 	Sweetwater unit 	based upon a
separate 	and distinct 	community of 	interest 	among employees 	in
the variant unit. 	(See 	also Los Angeles Unified School 	District,
supra, 	PERB Order No. 	Ad-250.)
In all 	of 	the 	cases where 	PERB previously has 	had the
opportunity to consider a transportation or bus 	drivers unit, 	it
has declined to approve of 	such a unit, 	favoring the 	Sweetwater
operations-support 	configuration. 	(See 	Sweetwater Union High
School District, 	supra, 	EERB Decision No. 	4; 	Fremont Unified
School District 	(1976) 	EERB Decision No. 	6; 	Sacramento City
Unified School District 	(1977) 	EERB Decision No. 	30; 	Shasta Union
High School District 	(1977) 	EERB Decision No. 	34.) 	PERB records
indicate 	that 	there 	are 	no bargaining units 	under EERA made 	up
solely of bus drivers.
BAFU contends 	that 	the 	case 	law with respect 	to unit
determination, 	in general, 	and severance, 	in particular, 	as
developed both 	through 	PERB 	decisions 	and under 	the 	National
Labor Relations Act 	(NLRA), 	support 	the proposition that, 	where a
distinct 	community of 	interest 	has 	been 	shown to 	attach 	to
particular 	job classifications, 	where 	the 	democratic 	initiatives
of 	employees within those 	classifications 	to 	seek changes 	in
working 	conditions 	through 	the 	incumbent 	exclusive 	representative
have 	been unfairly 	stifled or 	ignored, 	and where 	the 	exclusive
representative 	has 	systematically 	failed 	to defend the 	job 	tenure
48

of employees 	in the classifications, 	severance is appropriate.
BAFU places 	singular 	importance 	on 	the 	right 	of 	employees 	to
exercise 	free 	choice 	through the 	severance process. 	This 	theory
must 	be 	examined in 	light 	of 	the 	noted unit 	factors 	and
applicable 	precedent.
Community of 	Interest
Community of 	interest 	is 	based on such 	factors 	as 	job duties
and 	the 	degree 	to which they are 	related to 	or 	integrated with
the 	functions of other employees, 	the history of 	employee
representation 	in public 	schools 	and in similar employment, 	the
existence of skills, 	goals, 	and purposes common to other
employees, 	educational 	and other special 	training qualifications,
hours of work, 	salary and other compensation relationships,
supervision, 	work-related interchange between employees, 	and
other working conditions. 	No 	single 	factor 	is 	controlling.
(Marin Community College District 	(1978) 	PERB Decision No. 	55;
Hartnell 	Community College District 	(1979) 	PERB Decision No. 	81;
Grossmont Union High School District 	(1977) 	EERB Decision No. 	11;
Unit Determination 	for the 	State of 	California 	(1979) 	PERB
Decision No. 	110-S.) 	Community of 	interest 	is 	found only when
employees 	"share a 	substantial mutual 	interest 	in matters 	subject
to meeting 	and negotiating." 	(Monterey 	Peninsula 	Community
College District 	(1978) 	PERB Decision No. 	76.) 	Even potentially
conflicting 	interests 	among 	these 	factors 	across 	differing 	job
classifications do not destroy community of 	interest, 	unless 	it
is 	concretely shown that 	collective 	negotiations 	are 	incapable 	of
49

simultaneously addressing 	competing bargaining 	interests. 	(See
Santa 	Clara 	County Office 	of 	Education 	(1990) 	PERB Decision
No. 	839.) 	Nonetheless, 	differences 	in bargaining priorities can
be 	a 	symptom of 	a 	lack of 	community of 	interest. 	(State 	of
California 	(Department of 	Personnel Administration) 	(1990) 	PERB
Decision No. 	794-S, 	Hesse, 	Chairperson, 	dissenting.)
The 	function of bus 	drivers 	is 	to transport 	students between
their homes 	and schools, 	and to off-site 	school 	events 	during the
day. 	This 	function, 	like preparing mid-day meals, 	procuring
supplies, 	maintaining the physical 	facilities, 	and other tasks
performed by Unit 	C employees, 	is one which, 	in the general
sense, 	"supports" 	the primary function of the District, 	which is
to educate 	children. 	All 	of 	these 	functions are performed
outside 	of 	the 	classroom.
Bus drivers operate District vehicles, 	as do truck drivers,
mechanics, 	and a range of 	specialized maintenance employees who
drive 	to 	sites within the District.
Bus 	drivers 	perform maintenance 	tasks 	which are 	similar 	to
tasks 	performed by the majority of 	employees 	in 	the Maintenance
and Operations 	Branch. 	These 	tasks 	include 	the 	daily light
cleaning and mechanical 	inspection of 	the bus, 	the weekly washing
of 	the 	exterior of 	the bus, 	and the periodic 	fueling of 	the
vehicle. 	Truck drivers 	also perform these 	tasks. 	For both bus
drivers 	and truck drivers, 	failure 	to report 	defects 	can cause
the 	CHP 	to 	terminate 	or 	suspend District 	operations.
Recordkeeping 	is 	associated with the 	daily operation of 	the 	bus,
50

similar 	to 	the 	recordkeeping performed by truck 	drivers 	and other
Unit 	C employees 	who operate District vehicles. 	Tachographs
accompany both buses 	and trucks. 	Bus 	drivers 	are 	required to
possess mapping skills, 	as are bus routing assistants.
Bus 	drivers 	have 	job qualifications 	that 	are 	similar to
other Unit 	C employees. 	The most 	significant 	of 	these 	is 	the
requirement 	to maintain a 	California 	Class 	B 	commercial 	class
driver's 	license. 	This 	requirement 	subjects the drivers 	to the
recently mandated 	federal 	drug 	testing program, 	and under 	the
District's 	"zero tolerance" 	policy, 	automatic 	termination 	for a
positive 	test. 	Violations 	on the private 	driving record of 	a
driver may cause 	suspension of 	the 	Class 	B 	license. 	Truck
drivers 	and mechanics 	are 	other Unit 	C employees 	operating
vehicles 	who are 	required to maintain a Class B 	license. 	Fifty-
eight 	classifications 	require 	a valid driver's 	license 	of 	some
kind. 	Like 	truck drivers 	and mechanics, 	bus drivers 	are 	required
to participate 	in District 	sponsored 	in-service 	training 	related
to vehicle operation. 	Bus 	drivers 	are 	required to wear a uniform
nearly identical 	to 	those 	of 	truck drivers. 	Food service
employees 	and others 	are 	also 	required to wear a uniform. 	The
requirements 	for bus 	drivers versus 	truck drivers 	and mechanics
are 	distinguishable 	only by the 	fact 	that 	bus drivers 	are
required 	to maintain a 	first 	aid endorsement, 	possess mapping and
routing skills, 	and receive 	training in gang awareness, 	safe
riding practices, 	and pupil management.
51

Bus 	routing assistants 	and mechanics 	are 	two 	significant
classifications 	which have 	common 	supervision within 	the
Transportation Branch. 	The majority of Unit 	C employees 	are
organized under two 	of 	the 	four divisions 	containing classified
employees. 	The 	same 	evaluation procedure 	in the 	contract 	applies
to all Unit 	C employees. 	BAFU, 	however, 	has demonstrated that
bus 	drivers 	are 	more 	closely 	scrutinized 	than other Unit 	C
employees 	and that 	this 	culture 	has 	led to 	some 	abuses 	by
supervisors.
The 	hours 	of bus 	drivers 	have 	similarities 	to other Unit 	C
employees. 	The majority of bus 	drivers 	are part-time. 	They have
a 	strong 	concern 	in maintaining 	sufficient 	hours 	to 	qualify 	for
health and welfare benefits. 	Cafeteria helpers 	and cafeteria
workers 	are 	two major 	classifications 	also 	assigned part-time
schedules.
The 	split-shift 	is 	a unique 	condition of 	employment 	for bus
drivers. 	The 	effective 	length of 	their work day is much 	longer
than 	for other Unit 	C part-time 	employees. 	The 	schedule 	does
constrain 	bus 	drivers 	from obtaining 	other part-time 	employment
to supplement 	their income. 	However, 	this 	is compensated by the
fact 	that 	District 	bus 	drivers 	are 	among the 	highest 	paid Unit 	C
employees.
Bus 	drivers 	are 	assigned to 	a 	ten-month 	schedule 	coinciding
with the 	student 	calendar. 	Food service workers 	are 	assigned the
same 	ten-month 	schedule.
52

Bus 	drivers 	bid 	for 	their work 	assignments 	and work 	location
as 	do mechanics 	and truck drivers. 	Work 	location 	is 	significant
in a district 	of 	this 	size. 	Seniority is 	significant 	to bus
drivers because bidding rights 	are based on 	seniority. 	Mechanics
and 	truck 	drivers 	are 	similarly 	concerned 	about 	seniority because
they, 	too, 	bid for work assignments. 	Bidding seniority for bus
drivers 	is 	only distinguishable 	by the 	fact 	that 	higher 	seniority
has 	the potential 	to 	lead to 	full-time 	employment.
Contracting out 	is 	a concern 	for bus drivers because 	it
threatens 	retention of unit 	work and because 	contracting out 	of
mid-day assignments 	deprives 	drivers 	of potential 	full-time
assignments.74 A 	similar 	concern 	is 	shared by 	food 	service
workers, 	though the 	concern for the 	loss 	of 	full-time
opportunities 	is 	lacking.
Compensation rates 	for bus 	drivers 	are 	among the 	highest 	in
the unit, 	but 	not 	exceptional. 	Truck drivers and other skilled
technicians 	receive 	similar compensation. 	Bus drivers, 	though
mostly part-time, 	receive 	the 	same generous 	fringe benefit
package as all 	other Unit 	C employees.
Interaction between bus 	drivers 	and other Unit 	C 	employees
is very limited. 	Yet 	this 	characteristic 	is unremarkable 	in view
of 	this 	school 	district's 	great 	geographic dispersion of 	work
sites 	and high degree 	of 	specialization of 	function. 	Even among
74However, 	the 	ability to negotiate 	over allocating more work
to the unit 	and less 	to contractors 	is 	lacking to the 	extent 	that
proposals 	to purchase 	additional 	buses 	are 	outside 	the 	scope 	of
representation. 	(See Anaheim Union High School 	District 	(1981)
PERB Decision No. 	177.)
53

the 	largest 	job classifications 	in Unit 	C assigned to 	school
sites, 	unit 	employees have 	limited contact because of differing
work schedules. 	Among Unit 	C employees 	in general 	-- 	both
school-based 	and non-school-based employees 	-- 	bus 	drivers 	do
have 	a 	relatively greater 	opportunity 	for 	intra-classification
interaction because 	of 	the 	limited number of bus parking
locations 	and the 	regular bidding sessions. 	This 	does 	appear to
contribute 	to 	a 	certain degree 	of 	cohesiveness 	and group 	identity
among bus 	drivers.
In sum, 	bus drivers 	share a community of 	interest with other
Unit 	C employees 	based on 	the 	factors 	which 	PERB 	has 	examined 	in
prior cases 	of 	this 	kind.
Notwithstanding this 	evidence, 	BAFU claims 	that bus 	drivers
in this school district are, 	in effect, 	paraprofessional
employees 	who 	are 	required 	to 	exercise 	substantial 	independent
judgment 	in terms of pupil management 	skills, 	and by virtue of
their 	responsibility for the 	safety of 	children, 	are 	evaluated by
much 	stricter 	standards 	than other Unit 	C employees.75
75This 	theory finds 	support 	in PERB's 	finding that 	a unit
composed of 	instructional 	aides 	is 	an appropriate 	unit 	because
they perform paraprofessional 	duties. 	(Pittsburg Unified School
District 	(1976) 	EERB Decision No. 	3.) 	In Pittsburg, 	the EERB
agreed with 	the 	contention 	that 	instructional 	aides 	"are
distinguishable 	from other 	classified 	employees 	since 	their
primary 	functions 	involve 	dealing 	directly with 	students 	either
at 	the 	instructional 	or disciplinary level, 	whereas other
classified 	employees 	are 	primarily 	charged with providing 	a
physical 	environment 	for students." 	(Id., 	at p. 	5; 	see also,
Sweetwater Union High School District, 	supra, 	EERB Decision
No. 4 .)
54

- -
However, 	it 	is 	axiomatic 	that 	every classification has
attributes 	distinguishing 	it 	from all 	other 	classifications 	in 	an
existing unit. 	(See 	Sacramento 	City Unified School 	District.
supra, 	EERB Decision No. 	3 0.) 	While bus drivers have a level of
-
contact 	and 	responsibility 	for 	students 	qualitatively 	different
from other Unit 	C employees, 	this unique 	characteristic does not
predominate 	over 	the 	multitude 	of 	characteristics 	which bus
drivers 	share with other Unit 	C employees. 	Bus 	driver
supervision of 	students 	does 	not 	occur 	in the 	educational
setting. 	Maintenance 	of 	authority 	is 	not 	interrelated with
success 	in educating children; 	it 	is merely custodial 	in nature.
Communication with 	students 	and 	the 	exercise 	of 	judgment 	are 	not
ongoing, 	but episodic.76
Negotiations 	History
Stability 	in negotiations 	and 	lack of 	dissension have 	been
recognized by 	PERB 	as 	important 	factors 	supporting maintenance 	of
the 	existing unit 	configuration. 	(State 	of 	California
(Department of 	Personnel Administration) 	(1989) 	PERB Decision
No. 	773-S.) 	Conversely, 	a readily identifiable minority of unit
members 	is not 	required to 	relinquish 	its 	issues 	regularly to 	the
76The 	disciplinary function 	is 	analogous 	to 	that 	of 	campus
aides 	and noon-duty supervisors, 	who enforce 	disciplinary and
safety rules 	in buildings 	and on campus 	grounds. 	Unlike 	these
paraprofessional 	employees, 	bus drivers 	do not 	receive 	additional
compensation 	for educational 	experience, 	are not 	selected or
supervised by school 	administrators, 	and are 	not 	assigned to work
at 	schools. 	Further, 	although being paraprofessional 	employees,
campus 	aides 	and noon-duty 	supervisors 	are 	included with other
paraprofessional 	employees 	rather 	than afforded a 	separate 	unit.
(Pittsburg Unified School District, 	supra, 	EERB Decision No. 	3.)
55

more powerful 	majority. 	(State 	of 	California 	(Department 	of
Personnel Administration), 	supra, 	PERB Decision No. 	794-S; accord
State of 	California 	(Department 	of 	Personnel Administration),
supra, 	PERB Decision No. 	773-S.)
The District 	and Local 	99 	have negotiated 12 	contracts
dating back 	to 	1978. 	These 	contracts 	have 	included generous 	wage
rates 	for bus drivers, 	as well 	as the all-important 	seniority
bidding process. 	The 	contracts have 	included generous health and
welfare provisions 	for all 	employees 	in the unit, 	including bus
drivers. 	The 	contracts 	have 	also provided 	for binding
arbitration of 	grievances 	and agency 	fees.
Though there 	is 	no dispute 	that 	the 	District 	and Local 	99
have 	a 	stable bargaining relationship, 	BAFU contends 	that 	the
facility of 	negotiations 	has been at 	the 	expense 	of 	the vigilant
defense of bus driver 	interests.
Over the 	same period of 	time 	that 	contracts 	have been
successfully negotiated, 	bus 	drivers 	as 	a group have been vocal
and militant 	in raising demands, 	typically 	in spontaneous 	fashion
through general membership meetings 	of Local 	99. 	Local 	99
leadership 	responded with attempts 	to 	control 	what 	it 	apparently
viewed as an anti-majoritarian faction. 	In some cases, 	the
mechanisms 	employed by bus 	drivers 	to voice 	their demands 	(i.e.,
general membership meetings) 	or their leaders 	(Loya, 	Newsome,
Scates, 	Nelson, 	and Oceguerra) 	were negated through the internal
union political processes, 	perhaps 	in violation of principles of
due 	process. 	When bus drivers 	did raise 	legitimate workplace
56

issues with Local 	99, 	such as the 	issue of terminations 	at the
Los Angeles High School meeting, 	the 	contracting out 	of 	routes 	in
the 	1991-92 	negotiations, 	and the 	loss of 	full-time positions 	in
the grievances of Nelson and Oceguerra, 	Local 	99 	failed to
satisfy the demands of bus 	drivers. 	Three 	times during this
period bus 	drivers 	have 	expressed their desire 	to be 	severed 	from
Unit 	C.
Moreover, 	this 	tension between bus 	drivers 	and Local 	99 	has
intensified over time 	due 	to 	the 	lack of 	appropriate mechanisms
to mediate 	the political 	aspects 	of 	the 	conflict 	because
California 	lacks 	an analog 	to 	the private 	sector Labor Management
Reporting and Disclosure Act 	(LMRDA) 	and because 	of 	PERB's
tradition of 	avoiding 	disputes 	involving 	internal 	union
affairs.77 The 	absence of 	a 	legal 	duty of 	fair representation on
the part 	of 	Local 	99 	to represent 	employees 	in the 	extra-
contractual 	disciplinary appeals process 	-- 	the only forum where
bus 	drivers may contest 	dismissals 	-- 	and hence 	the 	inability of
bus 	drivers 	to mediate their complaints 	about 	inadequate
representation before 	an 	impartial 	forum have probably
contributed to this 	conflict 	as well.78
7729 U.S.C, 	sec. 	401, 	et seq.; 	see, 	especially, 	sec. 	411
(union members' 	"Bill of Rights"); 	Local 1498. Am. 	Fed, 	of G.
Emp. 	v. American Fed, 	of G. 	Emp. 	(3d Cir. 	1975) 	522 F.2d 486
[90 LRRM 2179] 	(no jurisdiction over local government employees),
See also Service Employees 	International Union, 	Local 	99
(Kimmett) 	(1979) 	PERB Decision No. 	106 	(internal union affairs).
^Representation 	in merit 	system disciplinary proceedings 	is
an 	extra-contractual 	forum 	and 	hence 	an 	exclusive 	representative
owes 	its 	employees no duty of 	fair representation. 	(Los Rios
College Federation of Teachers, 	Local 2279. 	CFT/AFT, 	AFL-CIO
57

But 	this 	history of 	dissension and the 	lack of 	alternatives
to mediate 	legitimate 	conflicts 	do not 	mandate 	the 	establishment
of 	a 	separate unit 	of bus drivers. 	Severance 	is 	appropriate 	only
in circumstances 	where 	it 	has 	been 	shown through negotiations
and/or 	representation 	history that 	such processes 	are 	incapable
of 	effectively addressing 	subjects 	within 	the 	scope 	of
representation. 	(See 	State 	of 	California 	(Department 	of
Personnel Administration), 	supra, 	PERB Decision No. 	794-S.)
Despite 	the 	ample 	latitude 	granted to BAFU in 	terms 	of 	the period
of 	history examined through this 	hearing, 	it 	has been successful
in demonstrating only two or three 	issues 	which Local 	99 	has
failed to address 	to the 	satisfaction of bus drivers. 	BAFU's
showing 	is 	insufficient.
Other considerations militate 	against 	severance 	as well.
With respect 	to the 	issue of 	supervision, 	the potential 	for any
exclusive 	representative 	achieving measurable 	success 	in
compelling the 	uniform application 	of 	discipline 	is 	somewhat
(1993) 	PERB Decision No. 	992; 	Professional Engineers in
California Government 	(1989) 	PERB Decision No. 	760-S.) 	PERB has
yet 	to 	consider the 	dynamic 	tension between 	the 	competing
principles, 	where, 	on the one hand, 	rules of conduct are
negotiable subjects and, 	on the other hand, 	there 	is no duty of
fair 	representation 	imposed on 	the 	exclusive 	representative
requiring enforcement 	of 	these 	rules. 	(See 	San Bernardino City
Unified School District 	(1982) 	PERB Decision No. 	255.) 	Despite
the 	absence of 	any duty, 	the de-facto practice 	is 	that most
exclusive 	representatives 	under 	the 	EERA provide 	representation
in these proceedings, 	presumably in recognition of 	the 	singular
importance 	job tenure 	to employees.
Nothing here, 	however, 	is 	intended to suggest 	that 	any or
all 	of 	the 	alleged transgressions 	by Local 	99 	would 	establish
violations 	of 	the 	LMRDA or 	the 	duty of 	fair 	representation.
58

problematic.79 In a 	school 	district 	the 	size of 	this 	employer,
negotiated 	solutions 	would appear 	to be 	preferable 	to 	reliance 	of
the disciplinary appeals process, 	but whether the District would
have 	any duty to negotiate 	over 	such proposals 	is 	debatable.80
BAFU has not 	proven 	in any convincing manner that 	Local 	99
caused widespread 	forfeiture 	of 	disciplinary appeals 	by 	its
failure 	to 	file appeals 	in a timely fashion or as 	a result 	of
deficient 	representation. 	Local 	99 	could have 	achieved greater
success 	in bargaining with respect 	to 	the 	issues 	of 	reduction 	in
full-time positions 	and 	the 	effects 	of 	mandatory drug 	testing,
but 	it 	has not 	completely ignored these 	issues 	either.81
79For example, 	Local 	99 	has no control 	over whom the District
hires 	or retains 	as 	supervisors.
80In San Bernardino City Unified School District, 	supra, 	PERB
Decision No. 	255, 	PERB 	found that both procedures and criteria
for 	imposing discipline 	are negotiable. 	Relying on this 	case 	in
Healdsburg Union High School 	District 	(1984) 	PERB Decision No.
375, 	PERB held that 	a provision for progressive discipline 	is
negotiable. 	(Accord San Mateo City School District 	(1984) 	PERB
Decision No. 	383.) 	United Steelworkers of America v. 	Board of
Education 	(1984) 	162 	Cal.App.3d 823 	[209 Cal.Rptr. 	16] 	overruled
PERB's 	separate 	finding 	that 	arbitration of 	the 	sufficiency of
cause 	for termination is not negotiable, 	but 	did not 	question the
negotiability of 	causes 	for discipline 	of 	classified employees.
(Id.. 	at p. 	831, 	fn. 	1.) 	However, 	Education Code section 45260
grants 	a 	district's 	personnel 	commission 	the power 	to prescribe
rules 	"necessary to 	ensure 	the 	efficiency of 	the 	service 	and
selection and retention of 	employees 	upon a basis 	of merit 	and
fitness." 	PERB has 	not 	addressed whether this provision
supersedes 	the 	right 	to negotiate 	causes 	for disciplinary action
or principles 	of progressive 	discipline.
81Local 	99's 	rejection of 	bus 	driver demands 	during the
1991-92 	negotiations 	was 	justified by 	its 	tactical 	decision 	to
eschew cost-adding proposals 	during 	the 	District's 	major 	fiscal
crisis. 	If it 	is to be faulted, 	it 	is 	for failing to revisit
these 	issues 	at 	a 	later time.
59

Notwithstanding Local 	99's 	removal 	of 	certain popular 	rank-
and-file bus driver representatives 	in the past, 	the 	record lacks
evidence 	that 	bus 	drivers 	favoring 	severance 	are 	driven by a
coherent 	agenda 	to address 	negotiable 	subjects.82 At 	the 	same
time, 	BAFU has 	failed to challenge Local 	99 with viable proposals
for 	solving 	the 	issues 	legitimately 	facing bus 	drivers.
In short, 	the record reflects 	that 	Local 	99's alleged
shortcomings 	with respect 	to 	representation of 	bus 	driver
interests 	have been due 	to acts 	of 	omission more 	than commission.
Extent 	of 	Organization
BAFU concedes 	that 	its 	extent 	of 	organization 	is 	not 	strong.
The 	600 	supporters 	claimed by BAFU is 	roughly equivalent 	to 	a
bare majority within the 	classification. 	This 	is 	significant 	to
the 	extent 	that 	BAFU predicates much of 	its 	case 	on the 	claim
that 	severance 	is 	necessary to vindicate 	employee 	free 	choice.
BAFU's 	level 	of 	representational 	activity also has 	been quite
low. 	In addition, 	BAFU's 	level of 	sophistication with respect 	to
legal 	aspects 	of both meeting and negotiating, 	contract
enforcement, 	and defense 	in disciplinary matters, 	as 	revealed
during the hearing, 	has not been impressive.
In contrast, 	Local 	99's 	extent 	of 	organization showing 	is
strong with respect 	to membership rates. 	Its overall
representational 	capacity has been at 	least 	adequate. 	Local 	99
82This would be 	reflected 	in the 	Local 	99 bargaining 	surveys
or 	in demands 	raised with 	the 	current 	negotiating team
representative. 	The 	record contains no such evidence. 	Despite
BAFU's 	contention 	that 	current 	representative Michael 	Bird 	sits
without 	legitimate democratic 	support, 	no 	such showing was made.
60

is 	the prototypical 	"modern" 	public 	sector union 	in terms of 	its
outlook, 	its emphasis on the need for political 	access, 	its
reliance on professionals 	(as 	opposed to rank-and-file 	staff),
and 	its 	somewhat 	bureaucratic 	character 	compared 	to 	the 	"town
hall" 	model 	espoused by BAFU. 	These 	characteristics do not
diminish Local 	99's 	showing with respect 	to extent 	of
organization. 	Given its 	choice of direction, 	Local 	99 has been
successful.
Efficiency 	of 	Operations
The 	presumptively appropriate 	classified units 	found 	in
Sweetwater 	reflect 	PERB's 	concern with 	an 	overly 	fragmented work
force 	and its effect 	on the 	employer's operations. 	PERB
explained:
. 	. 	. 	It is a legitimate concern that
excessive 	fragmentation 	of 	negotiating units
may burden 	an 	employer with multiple
negotiating processes 	and postures 	and with 	a
variety of 	negotiated 	agreements 	difficult 	to
administer because 	their provisions 	differ.
Interorganization 	competition 	may 	increase
demands 	made upon 	the 	employer by an employee
organization. 	The 	employer may have 	to give
the benefits of 	the 	"best" 	settlement 	in each
area of 	negotiations 	to 	all 	employees 	to
avoid employee 	unrest 	or 	the 	administrative
inconvenience 	caused by multiple 	agreements.
[Footnote 	omitted.]
(Sweetwater Union High School District, 	supra, 	PERB Decision
No. 	4, 	p. 	11.) 	In this context, 	the size of the severed unit
relative 	to the 	existing unit 	is not 	controlling. 	(Compare
Pleasanton Joint 	School District 	(1981) 	PERB Decision No. 	169
with San Francisco Community College District 	(1994) 	PERB
Decision No. 	1068.)
61

In 	severance 	cases, 	the party seeking severance will 	never
be 	able 	to 	demonstrate 	that 	adding 	an additional 	unit 	will
improve an employer's efficiency of operations. 	Therefore, 	PERB
only requires 	that 	the 	additional 	unit 	not be unduly burdensome.
(See 	State 	of 	California 	(Department 	of 	Personnel
Administration), 	supra, 	PERB Decision No. 	794-S.)
The 	efficiency of operations 	factor 	is 	not 	an 	impediment 	to
granting 	severance 	here. 	The 	creation of 	an additional 	unit
composed of 	bus 	drivers will 	not 	necessarily lead to 	a
proliferation of more units. 	Proposals 	to create other new
bargaining units 	would all 	be 	required to overcome 	the
presumption 	in favor of 	the 	Sweetwater units. 	(See 	State of
California 	(Department of Personnel Administration), 	supra, 	PERB
Decision No. 	794-S.) 	The 	additional 	costs 	required by the
negotiation 	and 	administration 	of 	an 	additional 	contract 	would
not 	have 	an adverse 	effect 	on a school 	district 	of 	this 	size. 	A
new contract 	for bus 	drivers would not 	lead to 	a variety of
provisions 	difficult 	to 	administer.83
83Bus 	drivers 	appear to be 	satisfied with most 	of 	the
provisions 	in the 	current 	agreement. 	It 	is 	also noted that 	any
resulting 	interorganization 	competition 	through negotiations 	as 	a
result 	of 	one 	additional 	unit 	would not 	significantly 	increase
economic 	demands 	on the District 	nor 	lead to a 	"whipsawing"
effect. 	At present, 	the certificated unit, 	represented by UTLA,
is 	the 	single 	greatest 	determinant 	of 	economic 	demands 	imposed on
the 	District. 	"Most 	favored nation" 	treatment 	and coalition
bargaining are 	already existing negotiations 	practices 	for 	these
other units 	and there 	is 	no evidence 	that 	the District 	has 	been
unable to 	survive with its 	requirements. 	(See Los Angeles
Unified School District, 	supra, 	PERB Decision No. 	1079.)
62

-. . .
Summary of 	Factors
Although the 	creation of 	an 	additional 	unit 	would not
significantly 	impact 	the 	efficiency of 	the 	District's 	operations,
BAFU has 	failed 	to 	rebut 	the 	Sweetwater presumption 	in 	favor of
an operations-support 	unit 	because 	the 	other three 	factors 	favor
maintenance 	of 	the 	existing configuration.
BAFU offers 	a novel 	community of 	interest 	argument 	relying
on the 	distinguishing 	factors 	of pupil 	management 	duties 	and
management's 	strict 	supervision. 	But 	it 	has 	failed to
demonstrate 	that 	bus 	drivers 	lack a 	community of 	interest 	with
other operations-support 	employees 	so 	as 	to 	justify the 	creation
of 	a 	separate unit. 	Bargaining practices of 	school 	districts 	in
the 	state 	do not 	reveal 	the 	existence 	of 	units 	consisting 	solely
of bus drivers. 	And despite 	the 	fact 	that bus 	drivers 	in this
distinctly 	large 	and urban 	school 	district 	may 	exhibit
characteristics 	different 	from those 	examined in previous 	cases,
BAFU has 	failed to 	demonstrate 	that 	a break with precedent 	with
regard to 	community of 	interest 	is 	justified.
BAFU's 	extent 	of 	organization 	showing 	is 	concededly weak 	and
is 	outweighed by the 	showing made by Local 	99.
The 	negotiations 	history reveals 	that 	the 	interests 	of 	bus
drivers 	have 	been 	sacrificed on occasion 	for 	the 	greater
interests 	of 	the bargaining unit 	and that 	Local 	99 	might 	have
been more 	successful 	in advancing 	issues 	of 	concern to bus
drivers. 	However, 	merely showing a 	failure to achieve 	success
does not 	justify granting a severance request. 	BAFU has 	failed
63

to establish that 	Local 	99 	has 	repeatedly imposed the will 	of 	the
majority over the minority, 	at 	least 	with respect 	to 	any concrete
economic 	issues, 	or that 	it 	has 	consistently forfeited the 	tenure
rights of bus drivers 	in the disciplinary appeals process. 	Some
sacrifice 	of 	minority 	interests 	is 	inevitable when multiple
classifications 	are 	grouped in a 	single unit. 	(Compare 	State 	of
California 	(Department of 	Personnel Administration) 	(1993) 	PERB
Decision No. 	1025-S.)
BAFU relies 	on a 	line 	of 	cases 	under the NLRA holding 	that
effectuation of 	employee 	free 	choice 	is 	one 	of 	the 	factors 	that
must be 	considered in severance cases, 	and that 	indeed, 	it 	is the
paramount 	factor. 	(See 	Pacific 	Southwest Airlines v. 	NLRB 	(9th
Cir. 	1978) 	587 F.2d 1032 	[100 LRRM 2566]; 	Pittsburgh Plate Glass
Co. v. NLRB 	(1941) 	313 U.S. 	146, 	153, 	165 	[61 S.Ct.908, 	8 LRRM
425]; 	Sheraton-Kauai Corp. 	v. 	NLRB 	(9th Cir. 	1970) 	429 F.2d 1352
[74 LRRM 2933]; 	NLRB v. 	Ideal Laundry & Dry Cleaning Co. 	(10th
Cir. 	1964) 	330 F.2d 712, 	716 	[56 LRRM 2036]; 	see also NLRB v.
Sunset House 	(9th Cir. 	1969) 	415 	F.2d 545 	[72 	LRRM 2283].)
The 	unit 	determination 	language 	of 	the 	EERA differs 	from
that 	under 	the 	NLRA in that 	the 	latter expressly refers 	to
employee 	free choice, 	whereas the 	former does not. 	(See
29 U.S.C, 	sec. 	159(b).) 	In enacting the EERA, 	the advisory
council 	appointed by 	the 	Legislature 	to 	recommend provisions 	for
the 	state's 	first 	collective bargaining 	statutes, 	explained that
the 	NLRA practice 	of permitting 	employees 	of 	a particular 	craft
to vote 	for 	representation 	in a 	smaller unit 	within a broader
64

industrial 	unit 	should not 	be 	followed 	in the public 	sector
"because of 	its 	tendency to result 	in a proliferation of units 	--
the principal evil 	to be avoided." 	(Cal. 	Assem. 	Advisory-
Council, 	Final Rep. 	(Mar. 	15, 	1973) 	pp. 	85-86.)84 An analysis of
the NLRA precedent 	on unit 	determination 	confirms 	that 	a
different 	practice 	has 	evolved 	in the private 	sector. 	That 	model
is 	rooted in the 	industrial model 	of organization, 	where
employers diverge greatly in terms of 	size, 	manner of
supervision, 	and type of product or service, 	and where the 	law
defers 	to the 	tradition of 	craft 	organization in labor. 	In the
public 	school 	setting, 	a more 	limited range of units 	is
appropriate 	given 	the 	general 	uniformity with respect 	to 	these
factors of organization.
BAFU has 	failed to 	demonstrate 	that 	the 	proposed unit 	of 	bus
drivers 	is more appropriate than 	the 	existing operations-support
unit. 	Accordingly, 	the severance petition is denied.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	and the 	entire 	record 	in 	the 	case,
IT 	IS 	ORDERED that 	the 	severance petition 	filed 	in this 	case 	is
DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8, 	section
32305, 	this 	Proposed Decision and order 	shall become 	final 	unless
#4The 	council's 	proposed 	statutory 	language 	on unit
determination 	is 	similar 	to 	the 	language 	adopted 	in 	section
3543(a). 	(Id., 	at pp. 	13-14; 	compare State of California
(Department of Personnel Administration). 	supra, 	PERB Decision
No. 	1025-S 	[discussion of Globe Machine and Stamping Co. 	(1937) 	3
NLRB 294 	[1-A LRRM 122]] .)
65

a party 	files 	a 	statement 	of 	exceptions 	with the 	Board 	itself 	at
the headquarters 	office 	in Sacramento within 20 	days 	of 	service
of this Decision. 	In accordance with PERB Regulations, 	the
statement 	of 	exceptions 	should 	identify by page 	citation 	or
exhibit number the portions of the 	record, 	if any, 	relied upon
for such exceptions. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32300.)
A document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close of business 	(5:00 p.m.) 	on the 	last 	day set 	for 	filing
". 	. 	. o r when sent by telegraph or certified or Express United
States mail, 	postmarked not 	later than the 	last day set 	for
filing. 	. 	." 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32135; Code of
Civ. 	P r o c , 	sec. 	1013.) 	Any statement of exceptions and
supporting brief 	must 	be 	served 	concurrently with 	its 	filing upon
each party to 	this proceeding. 	Proof 	of 	service 	shall 	accompany
each copy served on 	a party or 	filed with the 	Board 	itself.
(Cal. Code of Regs., tit. 8, secs. 32300, 	32305, 	32140.)
DONN 	GINOZA
Administrative 	Law 	Judge
66