Los Angeles Unified School District (PERB A478E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS ANGELES LABOR GROUP,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-6417-E
PERB Order No. Ad-478
April 16, 2020
Appearances: Gerald Corn, for Los Angeles Labor Group; Adam Grable, Assistant
General Counsel, for Los Angeles Unified School District.
Before Banks, Shiners, and Paulson, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Los Angeles Labor Group (LALG) from an
Administrative Law Judge’s (ALJ) order dismissing a complaint and unfair practice
charge against the Los Angeles Unified School District (LAUSD). The complaint and
underlying charge alleged that LAUSD retaliated against one of its teachers, Gerald
Corn (Corn), by issuing him a “below standard” evaluation because he exercised
rights guaranteed by the Educational Employment Relations Act (EERA).1
Additionally, the complaint and charge alleged that LALG was an employee
organization under EERA section 3540.1, subdivision (d). After issuing an Order to
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

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Show Cause (OSC) and receiving responses from the parties, the ALJ concluded that
LALG lacked standing to file the charge because it was not the exclusive
representative of LAUSD teachers, who are exclusively represented by United
Teachers Los Angeles (UTLA). On this basis, the ALJ dismissed the case.
Based on our review of the entire case file and applicable precedent in light of
the parties’ positions, we reverse the dismissal order and remand this case to the
Division of Administrative Law for a hearing on the merits of the complaint.
PROCEDURAL HISTORY
LALG filed the underlying charge on November 7, 2018, alleging that LAUSD
retaliated against Corn by issuing him a “below standard” evaluation because he
reported to administrators that one of his students was behaving in a dangerous
manner and subsequently complained that the administration had not adequately
addressed the student’s behavior. Section 1 of the charge form identified LALG as an
“employee organization.”2 Although he was not named as a separate charging party,
Corn identified himself as the person responsible for filing the charge. Corn also
signed the required declaration stating that he had read the charge and that the
information contained therein was true and complete to the best of his knowledge.
On November 20, 2018, PERB sent correspondence to the parties identifying
LALG as the charging party and notifying LAUSD of its right to file a response. Corn
was not identified as a party to the charge in this correspondence.
2 Section 1 of PERB’s unfair practice charge form requires the charging party to
identify whether it is an employee, an employee organization, an employer, or a
member of the public.

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On December 21, 2018, LAUSD filed a position statement in response to the
charge.
On February 26, 2019,3 PERB’s Office of the General Counsel issued a
complaint alleging that the District violated EERA section 3543.5, subdivision (a), and
identifying the charging party in the caption as “Gerald Corn (Los Angeles Labor
Group).” On March 15, the District answered the complaint, denying all material
allegations and asserting various affirmative defenses, including that LALG lacked
standing.
On her own motion, the ALJ issued an OSC on April 30, directing LALG to
present evidence that it was an “employee organization” as defined in EERA
section 3540.1, subdivision (d), and that it had standing to pursue the unfair practice
charge. LALG responded to the OSC on May 8, arguing that the allegations of the
complaint established it was an employee organization and that PERB law allows a
nonexclusive representative to prosecute discrimination charges on behalf of
employees it represents.
On May 30, the ALJ issued an order of dismissal, concluding that while there
were sufficient factual allegations to establish LALG’s status as an employee
organization, it had no standing to pursue the charge. Specifically, the ALJ concluded
that LALG had no representational rights because LAUSD had recognized UTLA as
the exclusive representative for certificated employees like Corn. Relying on Hanford
Joint Union High School District Board of Trustees (1978) PERB Decision No. 58,
(Hanford), the ALJ concluded that a nonexclusive representative like LALG has no
3 All further dates occur in 2019.

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standing to file an unfair practice charge over the wages, hours, or other terms and
conditions of employment of an employee within the exclusively represented unit. On
this basis, the complaint and charge were dismissed.
DISCUSSION
When the Board decides an appeal of a dismissal, it applies a de novo standard
of review and is free to reach different legal determinations than those in the
dismissal. (County of Monterey (2018) PERB Decision No. 2579-M, p. 7; Beverly Hills
Unified School District (2008) PERB Decision No. 1969, pp. 7-8.) In dismissing the
complaint and underlying charge, the ALJ concluded LALG had no standing to pursue
a charge on behalf of Corn because he was a member of a bargaining unit with an
exclusive representative, i.e. UTLA, and therefore allowing LALG to pursue the charge
would violate the exclusivity principle embodied in EERA section 3543.1,
subdivision (a).4 We disagree with the ALJ’s legal analysis and conclusion.
We recently explained the relevant legal principles governing the analysis of a
charging party’s standing to file and prosecute unfair practice charges. In Regents of
the University of California (2020) PERB Decision No. 2699-H, we observed that a
person or entity’s standing depends on the legal claim at issue in the charge. (Id. at
pp. 4-5.) “For example, because the statutory duty to meet and confer in good faith is
owed only between exclusive representatives and employers, PERB has held that
4 EERA section 3543.1, subdivision (a) provides, in pertinent part: “Employee
organizations shall have the right to represent their members in their employment
relations with public school employers, except that once an employee organization is
recognized or certified as the exclusive representative of an appropriate unit pursuant
to Section 3544.1 or 3544.7, respectively, only that employee organization may
represent that unit in their employment relations with the public school employer.”

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individual employees lack standing to allege an employer failed to bargain in good
faith.” (Id. at p. 5, internal citations omitted.) Indeed, in its conclusion that a
nonexclusive representative lacked standing to allege a unilateral change after the
employer recognized an exclusive representative, Hanford was one of the earliest
expressions of this rule. (Hanford, supra, PERB Decision No. 58.)
In Oxnard School District (Gorcey & Tripp) (1988) PERB Decision No. 667, the
Board affirmed that the presence of an exclusive representative precludes individual
employees and nonexclusive employee organizations from filing a charge alleging bad
faith bargaining by the employer. (Id. at pp. 9, 11-12.) But the Board also noted that
the exclusivity principle does not “limit the ability of employees to pursue unfair
practice charges which assert individual rights under the Act.” (Id. at p. 12.)
Similarly, we have never interpreted our statutes or regulations to mean that a
nonexclusive representative lacks standing to pursue an unfair practice charge
alleging a violation of EERA section 3543.5, subdivision (a), which makes it unlawful
for a public school employer to “[i]mpose 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.” (See Regents of the University of California, supra,
PERB Decision No. 2699-H, p. 8 [holding “that a nonexclusive representative has
standing to allege violations of the rights of employees it represents”].) This is
because a public employer’s duty to refrain from the conduct prohibited by
section 3543.5, subdivision (a) is not dependent on the existence of an exclusive
representative. Nor does such a charge interfere with the rights of an exclusive

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representative to bargain on behalf of the unit. (Cf. Hanford, supra, at p. 7 [standing
to allege unilateral change restricted to exclusive representative in order to prevent
rivalry and the undermining of exclusive representative’s power to bargain].) Thus, the
presence of an exclusive representative does not divest employees or their
nonexclusive representative of the right to file charges alleging violations of
employees’ individual statutory rights.
The ALJ misinterpreted Hanford when she concluded that no employee
organization other than the exclusive representative has standing to pursue this
charge alleging that LAUSD discriminated against Corn because he exercised rights
guaranteed by EERA. The rights at issue are individual rights that aggrieved parties
may assert without regard to the existence of an exclusive representative. We
therefore reverse the dismissal and remand this matter for a hearing.
ORDER
The Board REVERSES the order of dismissal in Case No. LA-CE-6417-E and
REMANDS the case to the Division of Administrative Law for a hearing on the
complaint.
Members Shiners and Paulson joined in this Decision.