Los Angeles Unified School District (PERB 1884E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATED ADMINISTRATORS OF
LOS ANGELES,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No.LA-CE-4819-E
PERB Decision No. 	1884
J a n u a r y 	3 0 , 	2007
Appearances: Parker & Covert LLP by Spencer E. Covert and Barbara J. Ginsberg, Attorneys,
for Associated Administrators of Los Angeles; Paul, Hastings, Janofsky & Walker LLP by
Robert F. Walker, Attorney, for Los Angeles Unified School District.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
SHEK, Member: 	This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Los Angeles Unified School District (District) to the
proposed decision (attached) of an administrative law judge (ALJ). 	The ALJ concluded that
the District violated the Educational Employment Relations Act (EERA)1 by refusing to
bargain over employees found by the Board to be properly in the certificated supervisors unit
represented by the Associated Administrators of Los Angeles (AALA).
The Board has reviewed the entire record in this matter, including the unfair practice
charge, complaint, stipulated record, the District's statement of exceptions and AALA's
response thereto. The Board finds the ALJ's findings of fact and conclusions of law to be free
EERA is codified at Government Code section 3540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

of prejudicial error and adopts the proposed decision as the decision of the Board itself subject
to the following modifications.
DISCUSSION
We replace the portion of the ALJ's "Findings of Facts" that discusses Los Angeles
Unified School District (2004) PERB Decision No. 1665 (Los Angeles) to correct a minor
factual error.2 In Los Angeles, the Board adopted the proposed decision of an ALJ in
consolidated Case Nos. LA-CE-4248-E and LA-UM-679-E. The unfair practice charge in that
case alleged that the district had unilaterally and improperly designated 25 employee
classifications as managerial. 	The association filed a unit modification petition requesting that
the Board determine that the 25 disputed classifications were not management employees
within the meaning of EERA section 3540.l(g), and were not excluded from the certificated
supervisors unit. 	The Board found that 17 of 25 disputed classifications were properly
designated management within the meaning of EERA section 3540.l(g). 	The Board ordered
that employees in eight disputed classifications were not management employees within the
meaning of EERA section 3540.l(g) and were therefore not excluded from the certificated
supervisors unit.
In contravention of the Board's order, the District refused to bargain with seven of the
eight disputed classifications. 	PERB decisional law has not sanctioned an employer's refusal
to recognize an exclusive bargaining representative based on the employer's unilateral
determination that the unit is, for some reason, inappropriate. 	(The Regents of the University
of California (1989) PERB Decision No. 722-H (Regents), at p. 4.)
The ALJ misstated on page 3, first paragraph, of the proposed decision that there was "a
District unit modification petition requesting that PERB exclude classifications from the unit."
The District did not file the unit modification petition.
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In the absence of the presentation of newly discovered or previously unavailable
evidence or special circumstances, relitigation of PERB's unit determination is not warranted.
PERB's unit determination in Los Angeles is therefore binding precedent. 	(Redondo Beach
City School District (1980) PERB Decision No. 140, at p. 3; Dixie Elementary School District
(1983) PERB Decision No. 298, at p. 2; Regents, at p. 5.)
We find that the District's refusal to bargain in good faith with AALA over matters
within the scope of bargaining for the seven classifications within the certificated supervisors
unit to be a violation of EERA section 3543.5(c). By this same conduct, the District
concurrently violated Section 3543.5(b) by denying AALA its statutory right as an exclusive
representative to represent unit members in their employment relations with the District. 	The
District's failure to meet and negotiate with AALA further interfered with employees because
of their exercise of representational rights in violation of Section 3543.5(a). 	(El Monte Union
High School District (1982) PERB Decision No. 220, at p. 11.)
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is found that the Los Angeles Unified School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5(a), (b) and
(c). 	The District violated EERA by refusing to bargain in good faith.
Pursuant to EERA section 3541.5(c), it hereby is ORDERED that the District, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to negotiate in good faith with the Associated Administrators of
Los Angeles (AALA) over all of the positions in the certificated supervisors bargaining unit;
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2. By the same conduct, interfering with the rights of employees to be
represented by their exclusive representative; and
3. 	Denying AALA the right to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Upon request, meet and negotiate with AALA as the exclusive
representative of all certificated supervisory employees in the bargaining unit, including:
Director, Professional Development
Director, High School Programs
Director, Middle School Programs
Administrative Coordinator, Child Development
Director, District Nursing Services
Director, Instructional Support Services, Local District
Director, School Services, Local District
2. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees are customarily placed,
copies of the Notice attached hereto as an Appendix, signed by an authorized agent of the District
indicating that it will comply with the terms of this Order. 	Such posting shall be maintained for a
period of thirty (30) consecutive workdays. Reasonable steps shall be taken to ensure that this
Notice is not reduced in size, altered, defaced or covered with any other material.
3. Written notification of the actions taken to comply with this Order shall be
made to the General Counsel of the Public Employment Relations Board, or the General Counsel's
designee. The District shall provide reports, in writing, as directed by the General Counsel or
his/her designee. 	All reports regarding compliance with this Order shall be concurrently served on
AALA.
Chairman Duncan and Member McKeag joined in this Decision.
A	4

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a review of Unfair Practice Case No. LA-CE-4819, Associated Administrators of
Los Angeles v. Los Angeles Unified School District in which all parties had the right to
participate, it has been found that the Los Angeles Unified School District violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5(a), (b) and
(c).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to negotiate in good faith with the Associated Administrators of
Los Angeles (AALA) over all of the positions in the certificated supervisors bargaining unit;
2. 	By the same conduct, interfering with the rights of employees to be
represented by their exclusive representative; and
3. 	Denying AALA the right to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Upon request, meet and negotiate with AALA as the exclusive
representative of all certificated supervisory employees in the bargaining unit, including:
Director, Professional Development
Director, High School Programs
Director, Middle School Programs
Administrative Coordinator, Child Development
Director, District Nursing Services
Director, Instructional Support Services, Local District
Director, School Services, Local District
Dated: 	LOS ANGELES UNIFIED SCHOOL DISTRICT
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATED ADMINISTRATORS OF LOS
ANGELES,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4819-E
PROPOSED DECISION
(June 2, 2005)
Appearances: 	Parker & Covert LLP by Spencer Covert, Attorney, for Associated
Administrators of Los Angeles; Paul, Hastings, Janofsky & Walker LLP by Robert F. Walker,
Attorney, for the Los Angeles Unified School District.
Before Bernard McMonigle, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges that the employer refuses to bargain over seven job
classifications previously found by the Public Employment Relations Board (PERB or Board)
to be in the collective bargaining unit. 	The employer's defense is that the PERB decision
placing these positions in the bargaining unit was incorrect; it refuses to bargain over the
positions because it believes them to be managerial and outside the unit.
On December 14, 2004, the Associated Administrators of Los Angeles (AALA or
Association) filed an unfair practice charge against the Los Angeles Unified School District
(District). On December 30, 2004, the PERB Office of the General Counsel issued a complaint
against the District alleging that it refused to negotiate matters within the scope of bargaining

for supervisory positions represented by the Association in violation of the Educational
Employment Relations Act (EERA or Act) section 3543.5(a) (b) and (c).1
The District answered the complaint on January 19, 2005, generally denying all
allegations and asserting the affirmative defense that the subject classifications are
management or confidential and not properly within the bargaining unit represented by the
Association.
No settlement conference or formal hearing was held in this matter. Rather, on
March 23, 2005, the parties submitted a factual stipulation. With the receipt of the last brief on
April 13, 2005, the matter was submitted.
FINDINGS OF FACT
The material facts in this case are not in dispute. The District is a public school
employer as defined in section 3540.l(k). 	The AALA is the exclusive representative as
defined in section 3540.l(e) of an appropriate unit of employees.
Unless otherwise indicated, all statutory references are to the Government Code.
EERA is codified at section 3540 et. seq. In relevant part, section 3543.5 provides:
It is unlawful for a public school employer to do any of the following:
(a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to
discriminate against employees, or otherwise to interfere with, restrain, or coerce
employees because of their exercise of rights guaranteed by this chapter. 	For purposes
of this subdivision, "employee" includes an applicant for employment or
reemployment.
(b) Deny to employee organizations rights guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an exclusive representative.
Knowingly providing an exclusive representative with inaccurate information, whether
or not in response to a request for information, regarding the financial resources of the
public school employer constitutes a refusal or failure to meet and negotiate in good
faith.
N	2

On July 27, 2004, PERB issued Los Angeles Unified School District (2004) PERB
Decision No. 1665 (PERB Decision No. 1665). In that decision the Board adopted the
proposed decision of an ALJ in a consolidated case that included an AALA unfair practice
complaint alleging the District had improperly removed positions from its bargaining unit and
a District unit modification petition requesting that PERB exclude classifications from the unit.
The Board found that 17 disputed classifications (16 employees) should be excluded from the
unit as management; the other 8 disputed classifications (61 employees) were found to be
within the AALA bargaining unit.
On November, 22, 2004, the Association requested that the District meet and negotiate
regarding the wages, hours and working conditions of the classifications that PERB determined
were within its bargaining unit. 	On December 2, 2004, and continuing thereafter, the District
has refused to bargain over seven of those classifications, specifically,
Director, Professional Development
Director, High School Programs
Director, Middle School Programs
Administrative Coordinator, Child Development
Director, District Nursing Services
Director, Instructional Support Services, Local District
Director, School Services, Local District
The District maintains that the seven classifications of employees, determined by PERB
to be within the supervisory unit represented by the AALA, are management and should be
excluded from the bargaining unit and the coverage of EERA.
ISSUE
Did the District refuse to bargain in violation of EERA?
CONCLUSIONS OF LAW
This unfair practice case addresses the District's refusal to bargain over job
classifications found by PERB to be covered by the EERA and represented by the AALA.
W	3

This case is not about whether the seven subject job classifications are properly within the
AALA bargaining unit or should be excluded as managerial. 	That issue was decided by the
Board in PERB Decision No. 1665.
The parties stipulated that "this proceeding represents what is referred to as a 'technical
refusal to bargain by the District.'" Using this tactic, employers in the private sector have
obtained judicial review of labor board unit certification decisions after being found guilty of
an unfair labor practice by refusing to bargain with the union. 	(See, e.g., J. R. Norton Co. v.
Agricultural Labor Relations Bd. (1979) 26Cal.3d 1, 160Cal.Rptr. 710; Boire v. Greyhound
Corp. (1964) 376 U.S. 473, 84 S.Ct. 894.)2
The Board has held that a unit modification may only be accomplished by an agreement
of the parties or through PERB's unit modification procedures; a "technical refusal to bargain"
is not a means for challenging the parameters of the bargaining unit. 	(Regents of the
University of California (1989) PERB Decision No. 722-H.)3 Accordingly, no factual findings
on the status of the disputed classifications will be made as part of this unfair practice
proceeding.
The PERB unit determination made in PERB Decision No. 1665 remains binding on
the parties. 	The AALA is the exclusive representative of an appropriate unit that includes the
seven classifications disputed by the District. 	The District admits that it refused to negotiate
As with EERA (at Gov. Code section 3542), unit determinations under the National
Labor Relations Act and California's Agricultural Labor Relations Act are generally not
subject to direct judicial review.
3 In that case, the Board also noted that "[t]he NLRB and the ALRB have condoned the
use of a 'technical refusal to bargain' only as a means of attacking initial certification
proceedings, immediately following the completion of a representation election." Such is not
the case herein, as the AALA was voluntarily recognized by the District in 1991.
4

matters within the scope of bargaining for these classifications. 	Such refusal constitutes a
violation of section 3543.5(c) and, derivatively, sections 3543.5(a) and (b).
REMEDY
Under section 3541.5(c) the Board is given the remedial authority:
[T]o issue a decision and order directing an offending party to cease and desist
from the unfair practice and to take such affirmative action.. .as will effectuate
the policies of this chapter.
Based on the finding that the District has engaged in and is engaging in unfair practices
by refusing to bargain over employees found by the Board to be properly in the bargaining unit
represented by the AALA, the District is ordered to cease and desist therefrom, and, upon request,
meet and negotiate with the Association as the exclusive representative of all employees in the
appropriate unit.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Los Angeles Unified School District violated the Educational
Employment Relations Act (Act), Government Code section 3543.5(a) (b) and (c). The
District violated the Act by refusing to bargain in good faith.
Pursuant to section 3541.5(c) of the Government Code, it hereby is ORDERED that the
Los Angeles Unified School District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to negotiate in good faith with the Associated Administrators of
Los Angeles over all of the positions in the certificated supervisors bargaining unit
2. 	Interfering with the rights of employees to be represented by their
exclusive representative by the same conduct; and
5

3. 	Denying the Associated Administrators of Los Angeles the right to
represent its members by the same conduct.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Upon request, meet and negotiate with the above-named employee
organization as the exclusive representative of all certificated supervisory employees in the
bargaining unit, including:
Director, Professional Development
Director, High School Programs
Director, Middle School Programs
Administrative Coordinator, Child Development
Director, District Nursing Services
Director, Instructional Support Services, Local District
Director, School Services, Local District
2. Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the Los Angeles Unified School
District customarily are posted, copies of the Notice attached hereto as an Appendix. The
Notice must be signed by an authorized agent of the District, indicating that it will comply with
the terms of this Order. 	Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced or covered with any other material.
3. Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on the charging party.
66

Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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 Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
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. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Bernard McMonigle
Administrative Law Judge
7