Los Angeles Unified School District (Busdrivers Association/Service Employees International Union) (PERB A250E)

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,
Exclusive 	Representative.
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____________________ )
Case 	No. 	LA-S-115
(LA-R-lC)
Administrative 	Appeal
PERB 	Order No. 	Ad-250
November 	22, 	1993
Appearances: 	O'Melveny 	& Myers 	by Michael 	I. 	Stockman, 	Attorney,
for 	Los 	Angeles 	Unified 	School 	District; 	Victor Wightman 	for
Busdrivers 	Association 	for 	Unity; 	Taylor, 	Roth, 	Bush 	& Geffner
by 	Hope 	J. 	Singer, 	Attorney, 	for 	Service 	Employees 	International
Union, 	Local 	99.
Before 	Blair, 	Chair; 	Hesse 	and 	Garcia, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	appeal 	of 	a 	Board agent's
administrative 	determination 	dismissing 	a 	severance 	petition
filed 	by 	the 	Busdrivers 	Association 	for 	Unity 	(BAFU) 	for 	a 	unit
of 	bus 	drivers 	in 	the 	Los 	Angeles 	Unified 	School 	District
(District).
The 	Board 	has 	carefully 	reviewed 	the 	entire 	record 	in
this 	case 	and 	upholds 	the 	Board 	agent's 	dismissal 	of 	the
severance 	petition.

FACTUAL BACKGROUND
The 	relevant 	facts 	are 	as 	follows: 	The 	bus 	drivers 	are
currently 	part 	of 	the 	operations 	and 	support 	unit 	of 	classified
employees 	of 	the 	District, 	which 	is 	represented 	by 	the 	Service
Employees 	International 	Union, 	Local 	99 	(SEIU). 	BAFU 	filed 	a
petition 	to 	sever 	the 	bus 	drivers 	from 	the 	existing 	unit 	and
create 	a 	unit 	consisting 	exclusively 	of 	bus 	drivers. 	The
petition 	was 	opposed by 	both 	the 	District 	and 	SEIU.
In 	support 	of 	its 	severance 	petition, 	BAFU 	contends 	that
SEIU 	has 	not 	represented 	the 	bus 	drivers 	fairly, 	that 	the 	bus
drivers 	have 	a 	separate 	and 	distinct 	community 	of 	interest, 	and
that 	the 	bus 	drivers 	have 	an 	overwhelming 	desire 	to 	have 	their
own 	unit.
SEIU 	contends 	that 	the 	petition 	seeks 	an 	inappropriate 	unit.
This 	contention 	is 	based 	on 	PERB 	precedent 	and 	the 	fact 	that
there 	have 	been 	no 	material 	changes 	in 	the 	bus 	drivers' 	duties,
working 	conditions, 	labor 	relations 	or 	community 	of 	interest
since 	a 	similar 	petition was 	filed 	by 	another 	association 	in
1983. 	(Los 	Angeles 	Unified 	School 	District 	(1985) 	PERB 	Decision
No. 	HO-R-105 	(Los 	Angeles).) 	That 	petition was 	dismissed 	for
failure 	to 	show 	that 	the 	petitioned-for unit 	was 	more 	appropriate
than 	the 	existing 	unit.
The 	District 	supports 	SEIU's 	position.
BOARD 	AGENT'S 	ADMINISTRATIVE 	DETERMINATION
The 	Board agent 	addressed 	two 	issues:
1. 	Does 	BAFU have 	a 	right 	to 	a 	formal 	hearing?
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2. 	Has 	BAFU 	shown 	cause 	why 	the 	severance 	request 	should 	not 	be
dismissed?
As 	to 	the 	first 	issue, 	the 	Board agent 	determined 	that 	BAFU
failed 	to 	show 	that 	there 	were 	any material 	facts 	in dispute 	so
as 	to 	justify a 	formal 	hearing.
As 	to 	the 	second 	issue, 	the 	Board agent 	points 	out 	that, 	in
Sweetwater Union 	High 	School 	District 	(1976) 	EERB Decision 	No. 	4
(Sweetwater) , 1 the 	Board 	established 	three 	classified units 	which
have 	come 	to 	be 	considered 	"presumptively 	appropriate." 	Those
units 	are 	instructional 	aides, 	office-technical 	and 	business
services, 	and 	operations-support 	services. 	The 	Board 	determined
that 	a 	strong 	community 	of 	interest 	generally 	exists 	among
employees 	in 	these 	groups. 	Furthermore, 	the 	Board 	held, 	in
Antioch 	Unified 	School 	District 	(1977) 	EERB 	Decision No. 	37, 	that
such 	a 	unit 	reflects,
... 	a 	proper 	balance between 	the 	harmful
effects 	on 	an 	employer 	of 	excessive 	unit
fragmentation 	and 	the 	harmful 	effects 	on
employees 	and 	the 	organizations 	attempting 	to
represent 	them of 	an 	insufficiently 	divided
negotiating 	unit 	or 	units.
(p. 	7.)
Bus 	drivers 	are 	typically 	included 	in 	the 	operations-support
services, 	as 	they 	currently 	are 	in 	the 	Los 	Angeles 	Unified 	School
District. 	The 	Board agent 	goes 	on 	to 	say 	that, 	where 	variant
units 	are 	sought, 	the 	Board 	has 	determined 	that 	they will 	not 	be
awarded unless 	the 	petitioned-for 	unit 	is 	more 	appropriate 	than
1Prior 	to 	January 	1, 	1978, 	PERB 	was 	known 	as 	the 	Educational
Employment 	Relations 	Board.
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the 	Sweetwater 	configurations. 	Additionally, 	she 	states 	that 	in
the 	case 	of 	a 	request 	for 	severance, 	as 	opposed 	to 	an·initial
unit 	determination, 	it 	is 	important 	to 	consider 	the 	negotiating
history 	so 	as 	to 	avoid 	disturbing 	a 	stable 	negotiating
relationship.
The 	Board agent 	finds 	that 	BAFU presented 	essentially 	the
same 	facts 	as 	those 	before 	PERB's 	hearing 	officer 	in 	Los 	Angeles.
She 	finds 	that 	those 	facts 	again 	fail 	to 	indicate 	either a 	lack
of 	community 	of 	interest 	with 	other 	unit 	members 	or 	that 	their
interests 	have 	been 	ignored by 	SEIU. 	Thus, 	the 	severance 	request
was 	dismissed.
APPEAL
The 	District 	and 	SEIU 	contend 	that 	BAFU's 	appeal 	should 	be
dismissed 	for 	failure 	to 	timely 	serve 	the 	parties.
BAFU's 	appeal 	contends 	that 	the 	Board 	agent's 	failure 	to
grant 	a 	hearing 	on 	this 	matter 	and 	dismissal 	of 	the 	petition 	were
unlawful.
SEIU's 	response 	to 	BAFU's 	appeal 	reiterates 	that 	BAFU 	has
failed 	to 	meet 	the 	Sweetwater 	standard.
The 	District 	reiterates 	that 	BAFU has 	failed 	to 	show 	that
its 	proposed 	unit 	is 	more 	appropriate 	than 	the 	existing 	unit.
It 	also 	states 	that 	the 	number 	of 	bargaining 	units 	with 	which
it 	has 	to 	bargain 	has 	increased 	from 	six 	to 	eight 	since 	1985
when 	Los 	Angeles 	was 	filed 	and 	that 	adding 	another 	bargaining
unit 	would 	burden 	the 	District 	with 	additional 	negotiations.
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DISCUSSION
In April 	1992, 	both 	the 	District 	and 	SEIU moved 	to 	dismiss
the 	appeal 	of 	the 	administrative 	determination 	on 	the 	grounds,
inter 	alia, 	that 	the 	appeal 	was 	not 	timely 	served 	on all 	parties
as 	required 	by 	PERB 	Regulations 	32140 	and 	32360(b}. 2 	In 	the
alternative, 	both parties 	requested 	30 	days 	from 	the 	date 	of 	the
Board's 	decision 	on 	the 	motion 	to 	file 	written 	opposition 	to
BAFU's 	appeal. 	The 	Board 	itself 	took 	the 	motion 	under 	submission
and 	on May 	17, 	1993, 	the 	PERB 	appeals 	assistant 	granted 	the
parties' 	alternative 	request 	and 	ordered 	BAFU 	to 	properly 	serve
the 	District 	and 	SEIU. 	As 	a 	threshold matter, 	we 	deny 	the 	motion
to 	dismiss 	because 	neither 	the 	District 	nor 	BAFU 	showed 	prejudice
due 	to 	the 	late 	service. 	The 	deficiency was 	cured 	and 	both 	the
District 	and BAFU were 	allotted 	sufficient 	time 	to 	file 	their
statements 	in 	opposition 	to 	the 	appeal 	as 	they 	had 	requested.
(See 	Santa Monica-Malibu 	Unified School 	District 	(1987) 	PERB
Order 	No. 	Ad-163 	and 	San Diego 	Community 	College 	District 	(1988)
PERB 	Decision No. 	662 	affirmed 	in 	part 	San Diego Adult
Educators 	v. 	Public 	Employment 	Relations 	Bd. 	(1990)
223 	Cal.App.3d 	1124 	[273 	Cal.Rptr. 	53] .)
As 	stated 	in 	the 	administrative 	determination, 	Sweetwater
held 	that 	there 	are 	three 	appropriate 	classified units 	under
the 	Educational 	Employment 	Relations 	Act. 	In 	Foothill-DeAnza
Community 	College 	District 	(1977) 	EERB 	Decision No. 	10, 	the
2PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq.
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Sweetwater 	units 	were 	made 	presumptively 	appropriate. 	In 	Compton
Unified 	School 	District 	(1979) 	PERB 	Decision No. 	109 	(Compton),
the 	Board 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 	or 	other 	section. 	Moreover, 	the 	Board 	has
specifically held 	that 	school 	bus 	drivers 	may 	not 	have 	separate
units, 	because 	they 	share 	a 	community 	of 	interest 	with 	other
"operations-support 	services" 	unit 	employees. 3 In 	Livermore
Valley 	Joint 	Unified 	School 	District 	(1981) 	PERE 	Decision
No. 	165, 	the 	Board 	recognized 	that 	a 	request 	for 	severance 	is
factually 	different 	from 	an 	initial 	unit 	determination because
negotiating 	history must 	be 	considered 	as 	an 	important 	factor
along 	with 	the 	other 	criteria 	used 	to 	determine 	the
appropriateness 	of 	a 	unit.
The 	burden 	is 	on 	the 	petitioner 	to 	show 	that 	there 	has 	been
a 	change 	of 	circumstances 	sufficient 	to 	justify a 	variation 	of
an 	established unit. 	The 	petitioner must 	overcome 	the 	standards
articulated 	in Sweetwater 	and 	Compton. 	Pursuant 	to 	PERE
3See 	Shasta Union 	High 	School 	District 	(1977) 	EERB 	Decision
No. 	34 	(bus 	drivers 	have 	overlapping 	duties 	and 	interchangeable
functions 	with 	other maintenance 	employees); 	Sacramento 	City
Unified 	School 	District 	(1977) 	EERB 	Decision No. 	30 	(community
of 	interest 	of 	transportation 	employees 	not 	dissimilar 	from 	other
operations-support 	employees); 	Fremont 	Unified 	School 	District
(1976) 	EERB 	Decision No. 	6 	(combined unit 	of 	school 	operations,
skilled 	trades 	and 	crafts, 	and 	transportation 	employees
appropriate); 	see 	also 	San Diego 	Unified 	School 	District 	(1981)
PERE 	Decision 	No. 	170 	(separate 	unit 	of 	hourly bus 	drivers
unjustified 	because 	they 	share 	community 	of 	interest 	with monthly
drivers, 	perform same 	work 	and 	have 	virtually 	identical
employment 	conditions).
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Regulation 	32786, 4 	in 	order 	to 	determine 	if 	a 	sufficient 	change
of 	circumstances 	has 	occurred, 	the 	Board 	agent 	will 	use 	his
discretion 	in 	deciding 	whether 	a 	hearing 	is 	necessary 	in 	addition
to 	an 	investigation.
In 	this 	case, 	the 	Board 	agent 	decided 	that 	a 	hearing 	was
not 	necessary 	since 	the 	bus 	drivers' 	community 	of 	interest 	with
the 	existing 	unit 	had 	been 	previously 	examined 	and 	BAFU 	did 	not
allege 	any 	changes 	in 	the 	bus 	drivers' 	duties, 	responsibilities
or working 	conditions 	since 	the 	time 	the 	unit 	was 	originally
established 	or 	since 	the 	Los 	Angeles 	hearing. 	Copsequently,
there 	were 	no 	factual 	disputes 	to 	be 	resolved 	in 	a 	hearing. 	We
find 	the 	Board 	agent's 	determination 	on 	this 	issue 	to 	be 	proper.
For 	essentially 	the 	same 	reasons, 	the 	Board agent 	determined
that 	BAFU 	had 	not 	shown 	cause 	why 	the 	severance 	request 	should
not 	be 	dismissed. 	Because 	the 	existing 	unit 	was 	a 	presumptively
appropriate 	unit 	under 	Sweetwater 	and because 	BAFU 	alleged 	no
change 	in 	circumstances, 	the. Board agent 	properly 	found 	that
the 	unit 	was 	appropriate 	and 	the 	severance 	request 	should 	be
dismissed.
4 PERB 	Regulation 	32786 	states, 	in pertinent 	part:
(a) 	Upon 	receipt 	of 	a 	petition 	for 	unit
modification, 	the 	Board 	shall 	investigate
and, 	where 	appropriate, 	conduct 	a 	hearing
and/or 	a 	representation 	election, 	or 	take
such 	other 	action as 	deemed 	necessary 	in
order 	to 	decide 	the 	questions 	raised by 	the
petition and 	to 	ensure 	full 	compliance 	with
the 	provisions 	of 	the 	law.
(Emphasis 	added.)
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CONCLUSION
We 	find 	that 	BAFU has 	failed 	to 	show 	that 	a 	separate 	unit 	of
bus 	drivers 	would be 	more 	appropriate 	than 	the 	existing 	unit 	and
thus 	has 	failed 	to 	overcome 	the 	Sweetwater presumption. 	We 	also
find 	that 	the 	Board 	agent 	was 	correct 	in 	determining 	that 	BAFU
was 	not 	entitled 	to 	a 	formal 	hearing 	on 	this 	matter 	because 	no
change 	in 	circumstances 	was 	alleged 	which 	would 	have 	justified
conducting a 	hearing.
ORDER
Based on 	the 	entire 	record 	in 	this 	case, 	the 	Board 	agent's
determination 	is 	affirmed 	and 	it 	is 	ORDERED 	that 	the 	severance
petition 	filed 	by 	the 	Busdrivers 	Association 	for 	Unity be
DISMISSED.
Members 	Hesse 	and Garcia 	joined 	in 	this 	Decision.
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