Los Angeles Unified School District/Lynwood Unified School District (PERB J013E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES 	UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
SUPERVISORY EMPLOYEES 	UNION,
LOCAL 347, SEIU, AFL-CIO,
Employee 	Organization.
Case No. 	LA-R-835
Request 	for
Judicial 	Review
PERB Decision No. 	424
PERB Order No. 	JR-13
January 28, 	1985
LYNWOOD 	UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
SUPERVISORY 	EMPLOYEES 	UNION,
LOCAL 347, SEIU, AFL-CIO,
Employee 	Organization.
Case No. 	LA-R-858
Appearances; 	O'Melveny & Myers by Joel M. 	Grossman 	for 	Los
Angeles Unified 	School District; 	Law Offices 	of Henry S.
Barbosa by Douglas 	D. 	Barnes 	for 	Supervisory Employees 	Union,
Local 347, SEIU, AFL-CIO.
Before Hesse, Chairperson; 	Tovar and Morgenstern, Members.
DECISION
MORGENSTERN, Member: 	Pursuant to section 3542(a) 	of the
Educational Employment 	Relations Act 	(EERA),1 the 	Los Angeles
1The 	EERA 	is 	codified 	at Government Code 	section 	3540 	et
seq.
Section 3542(a) 	provides, 	in pertinent part:
(a) 	No employer 	or 	employee organization
shall 	have 	the 	right 	to 	judicial 	review of a

Unified 	School 	District 	(LAUSD) 	requests 	that 	the Public
Employment Relations 	Board 	(PERB or 	Board) 	join 	it 	in 	seeking
judicial 	review of 	our 	Decision No. 	424 	and 	stay all proceedings
in 	the case pending 	resolution of 	the 	appeal. 	Supervisory
Employees Union, 	Local 317, 	SEIU, AFL-CIO 	(Local 347) 	does not
oppose LAUSD's 	request 	for 	judicial 	review but 	urges 	that
review 	should 	be 	limited 	to 	the 	LAUSD case 	in view of 	the 	fact
that 	the 	Lynwood 	Unified 	School 	District 	has 	not 	sought
review. 	Local 347, 	therefore, 	requests that we bifurcate the
LAUSD case 	(LA-R-835) 	from 	the Lynwood Unified 	School 	District
case 	(LA-R-858), 	with which 	it has been consolidated. 	Local 347
further 	objects 	to any stay 	of proceedings.
unit determination except: 	(1) 	when the
board 	in 	response 	to 	a petition 	from an
employer 	or 	employee organization, 	agrees
that 	the case 	is 	one 	of 	special 	importance
and 	joins 	in the request for 	such review; 	or
(2) 	when 	the 	issue 	is raised as a defense to
an 	unfair 	practice 	complaint. 	A board 	order
directing 	an 	election 	shall 	not 	be 	stayed
pending 	judicial 	review.
DISCUSSION
In the underlying decision, 	Los Angeles Unified School
District/Lynwood 	Unified 	School 	District 	(10/24/84) 	PERB
Decision No. 	424, 	the Board affirmed 	the hearing officer's
proposed 	decision 	finding 	that Local 	347 	is 	not 	the 	same
employee 	organization 	as 	Los Angeles 	City 	and County 	School
Employees Union, 	SEIU, 	Local 99 within 	the meaning of EERA

section 3545(b)(2)2 and, 	therefore, Local 347 is not
precluded 	from 	representing 	a 	unit 	of 	supervisory 	employees 	who
supervise 	rank-and-file 	classified 	employees 	represented 	by
Local 99.
Accordingly, 	we ordered as 	follows:
Within 	thirty-five 	(35) 	days 	after 	this
Decision 	is 	no 	longer 	subject 	to
reconsideration, 	the Los Angeles Regional
Director 	of 	the Public Employment Relations
Board 	shall 	contact 	the 	parties 	regarding
resolution 	of 	the 	outstanding 	unit 	issues,
and 	elections will 	be 	conducted 	to determine
whether 	Supervisory Employees Union, 	Local
347, 	SEIU, AFL-CIO, 	shall be the exclusive
representative 	of 	the 	instant 	employees.
Request 	for 	Judicial 	Review
The 	Board 	has 	previously 	requested 	judicial 	review of 	the
"same 	employee 	organization" 	issue 	in Fairfield-Suisun 	Unified
School District, 	Sacramento City Unified School District, 	Los
Angeles Community College 	District 	(6/18/80) 	PERB Order
No. 	JR-8. 	This 	issue was 	found to be of special 	importance
because: 	(1) 	it was a novel issue; 	(2) 	primarily involving
construction 	of 	a 	statutory provision 	unique 	to EERA; 	and 	(3)
was 	likely 	to 	arise 	frequently.
2Section 3545(b)(2) 	states:
A 	negotiating 	unit 	of 	supervisory 	employees
shall 	not be 	appropriate 	unless 	it 	includes
all 	supervisory 	employees 	employed 	by 	the
district 	and 	shall 	not 	be 	represented 	by 	the
same 	employee 	organization 	as 	employees 	whom
the 	supervisory 	employees 	supervise.

Clearly, 	since 	the same legal 	issue 	is 	involved 	in 	the
instant case, 	our 	finding 	of 	special 	importance 	applies 	equally
here. 	Inasmuch 	as 	the 	Supreme Court 	ordered 	unpublished 	the
Court 	of 	Appeal 	decision 	which 	resulted 	from our 	previous
request 	for 	judicial 	review 	of 	the 	issue,3 that 	decision 	may
not be cited 	or 	relied 	upon.4 Thus, 	the 	existence of 	an
unpublished Court 	of Appeal 	decision 	on 	the 	issue 	does 	not
detract from 	its 	novelty or 	its 	"special 	importance."
Moreover, 	here, 	Local 347 	essentially agrees 	that judicial
review 	is preferable at 	this 	time. 	Given 	the parties'
agreement and 	the 	importance of 	the 	issue, 	the Board grants
LAUSD's 	request 	to 	seek 	judicial 	review.
Stay 	of 	Proceedings
LAUSD urges 	that, 	pending 	judicial review, 	we should stay
all proceedings 	to 	enforce 	our 	order 	which 	directs 	that 	the Los
Angeles 	regional 	director 	"shall 	contact 	the parties 	regarding
resolution of 	the 	outstanding 	unit 	issues, 	and elections will
be conducted . 	. 	. 	."
3In 	the Los Angeles Community College District case, 	the
Court of Appeal reversed 	the Board, 	holding, 	as a matter 	of
law, 	that mere affiliation renders 	two organizations 	the 	same.
4Rule 	977 	of 	the California Rules 	of Court provides 	that
an 	unpublished 	decision
shall 	not be 	cited or 	relied 	on 	by a court
or a party in any other 	action except 	. 	. 	.
where 	the opinion 	is 	relevant under 	the
doctrines of law of the case, 	res 	judicata,
or collateral estoppel.

Section 3542(a) 	expressly provides 	that 	"[a] 	board order
directing 	an 	election 	shall 	not 	be 	stayed 	pending 	judicial
review." 	This 	provision 	indicates 	a 	clear 	legislative
intention 	that 	employees' 	right 	to 	select 	an 	exclusive
representative 	should 	not 	be 	abridged 	or 	delayed,
notwithstanding 	a pending 	appeal. 	We 	see 	no 	reason why 	unit
determination proceedings 	preliminary 	to 	an 	election 	should 	be
stayed where 	the 	election 	itself may not 	be stayed.
We, 	therefore, 	deny LAUSD's request for a stay of
proceedings.
Severance
Lynwood 	Unified 	School 	District 	filed 	no 	exceptions 	to 	the
hearing officer's proposed decision and, 	to date, 	has neither
petitioned 	the 	Board 	to 	seek 	judicial 	review, 	indicated 	an
intention 	to 	join 	in LAUSD's 	request, 	nor 	responded 	in any
fashion 	to Local 347's request 	to sever 	the 	two cases. 	Neither
has 	LAUSD 	offered 	any 	objection 	to 	the 	proposed 	severance.
We, 	therefore, 	grant Local 347's request and order 	the
cases 	severed 	so 	that 	the 	unit 	determination 	and 	election 	can
proceed 	expeditiously 	in 	the 	Lynwood 	Unified 	School 	District
without 	unnecessary delay which may 	arise 	due 	to 	judicial
proceedings 	in 	the LAUSD case.
ORDER
Based 	upon 	the 	foregoing, 	it 	is hereby ORDERED that:
1. 	Case No. 	LA-R-835 	is hereby SEVERED from Case No.
LA-R-858.

2. 	The 	request of 	the Los Angeles 	Unified 	School 	District
that 	the Public Employment 	Relations 	Board 	join 	its 	request 	for
judicial 	review of 	Los Angeles 	Unified 	School 	District/Lynwood
Unified School District 	(10/24/84) 	PERB Decision No. 	424 	as 	it
applies 	to Los Angeles Unified School District 	is GRANTED.
3. 	The 	request of 	the Los Angeles Unified 	School District
that compliance 	with 	Decision No. 	424 	be 	stayed pending
judicial 	review 	is DENIED.
Member 	Tovar 	joined 	in 	this 	Decision. 	Chairperson Hesse's
concurrence 	and dissent begins on p. 	7.

Hesse, 	Chairperson, 	concurring and dissenting: 	I concur
with 	the majority 	insofar 	as 	it grants 	Los Angeles 	Unified
School 	District's 	request 	to 	seek 	judicial 	review of PERB
Decision No. 	424 	and denies Los Angeles Unified 	School
District's 	request 	for 	a 	stay of proceedings. 	I 	dissent,
however, 	as 	to 	the granting of Local 347's 	request 	that we
bifurcate 	the 	Los Angeles 	Unified 	School 	District 	case
(LA-R-835) 	from the Lynwood Unified 	School 	District case
(LA-R-858).
These 	two 	cases 	were 	originally consolidated 	for 	hearing 	on
March 9, 	1982, 	because the same major 	issue was present 	in
each: 	whether, 	under 	the EERA, 	two locals, 	affiliated with the
same 	international 	union, 	are 	the 	same 	employee 	organization.
On January 19, 	1984, 	Local 347 petitioned the Board to
bifurcate 	the cases. 	This petition was denied, 	ostensibly 	for
the 	same 	reason 	the 	cases 	were 	originally consolidated.
Today, 	we have 	joined 	the Los Angeles Unified 	School
District 	in 	seeking 	judicial 	review of Decision 	424. 	In 	so
doing, 	the majority acknowledges 	that 	the 	issue 	is 	novel 	and 	of
special 	importance. 	Yet, 	the majority is severing the cases
despite 	the 	harm and confusion 	that 	could 	result 	if 	the 	court
reverses 	our 	underlying 	decision.
Despite 	Lynwood 	Unified 	School 	District's 	failure 	to 	file
exceptions 	to 	the 	administrative 	law 	judge's proposed decision
or 	to join 	in 	the 	request 	for 	judicial review, 	the cases 	should
remain 	consolidated 	until 	final 	resolution 	of 	the 	"same
employee organization" 	issue.