Los Angeles Unified School District (PERB 1827E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS ANGELES SCHOOL POLICE
ASSOCIATION,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4809-E
PERB Decision No. 1827
March 8, 2006
Appearances: Lackie & Dammeier by Michael A. Morguess, Attorney, for Los Angeles
School Police Association; Paul, Hastings, Janofsky & Walker by Holly R. Lake, Attorney, for
Los Angeles Unified School District.
Before Duncan, Chairman, McKeag and Neuwald, Members.
DECISION
McKEAG, Member: This case is before the Public Employment Relations Board
(Board) on appeal by the Los Angeles School Police Association (Association) of a Board
agent's dismissal (attached) of its unfair practice charge. The charge alleges that the
Los Angeles Unified School District (District) violated the Educational Employment Relations
Act (EERA)1 by transferring bargaining unit work out of the unit.
The Board has reviewed the unfair practice charge, the first and second amended unfair
practice charge and attachments, the warning and dismissal letters, the Association's appeal
and the District's response. The Board finds the Board agent's dismissal to be free of
prejudicial error and adopts it as a decision of the Board itself.
EERA is codified at Government Code section 3540, et seq.

2
ORDER
The unfair practice charge in Case No. LA-CE-4809-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Neuwald joined in this Decision,
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	ISTATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYM,ENT RELATIONS BOARD
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 	Sacramento Regional Office
1031 18TH STREET
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
July 28, 2005
Michael A. Morguess, Attorney
Lackie & Dameier LLP
367 North Second Avenue
Upland, CA 	91786
Re: 	Los Angeles School Police Association v. Los Angeles Unified School District...
Unfair Practice Charge No. LA-CE-4809-E
DISMISSAL LETTER
Dear Mr. Morguess:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 27, 2004. The Los Angeles School Police Association
alleges that the Los Angeles Unified School District violated the Educational Employment
Relations Act (EERA)1 by transferring bargaining unit work out of the unit. 	On January 27,
20052, the Association filed a First Amended Charge alleging the same.
1 indicated to you in my attached letter dated June 17, 2005, that the above-referenced charge
did not state a prima facie case. You were advised that, if there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. 	You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to June 27, the charge would be dismissed. You
contacted me by phone on June 24, and requested an extension to file your amended charge up
to and including July 6. 	I granted your request and I asked you to send me a letter confirming
our discussion. 	That same day, 1 received a facsimile copy of a letter from you confirming the
July 6 date for filing an amended charge. 	The letter also requested I review my warning letter
to ensure that the contents of the letter considered the First Amended Charge, not the original
Charge as filed. Again on June 24, I reviewed the entire file and contacted you. I clearly
indicated to you that the warning letter contemplated the First Amended Charge as filed.
On July 5, you again contacted me by phone and requested another extension to file your
amended charge up to and including July 8. I granted your request and I again asked you to
send me a letter confirming our discussion. 	On July 5, I received a facsimile copy of a letter
from you confirming the July 8 date for filing an amended charge.
EERA is codified at Government Code section 3540 et seq. 	The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 All dates hereafter refer to 2005 unless otherwise noted.

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LA-CE-4809-E
July 28, 2005
Page 2
On July 7, I received a facsimile copy of the Second Amended Charge. 	Again, the charge
alleged a transfer of bargaining unit work out of the unit. 	The Second Amended Charge also
alleges the warning letter only considers the facts as alleged in the original Unfair Practice
Charge and does not seem to consider the facts as alleged in the First Amended Charge.
However, you and I resolved this allegation in a telephone conversation on June 24 wherein I
explained to you my reasoning and the law applied to the facts of the First Amended Charge as
discussed in the warning letter.
1 have considered the facts as alleged in the original Unfair Practice Charge, the First Amended
Charge, and the Second Amended Charge and taken them as true. (Mark West Union School
District (1993) PERB Decision No. 1011.) At this point, the Association has filed three
versions of the facts to support the allegation of unilateral change - transfer of bargaining unit
work. 	Unfortunately, the three variations of the alleged facts confuse what the "past practice"
has been.
In the original charge, the Association alleges:
The District has a long-term past practice of using a minimum
number of school police officers to provide police services at
District high school football games. In some cases, the District
has used some County of Los Angeles Deputy Sheriffs to
supplement the school police officers' show of force. 	Charging
Party has recently learned of an attempted unilateral change by
the District to that practice that by changing the ratio of District
School Police Officers to County Deputy Sheriffs such that the
District is now contracting out work performed by members of
Charging Party to the County of Los Angeles Sheriffs
Department.
Here, the facts suggest both the school police officers and the LA sheriff and police officers are
used as security at the District high school football games. 	The Association alleges the District
is changing policy and increasing the number of outside police officers and decreasing the
number of Association security personnel assigned to each high school football game.
In the First Amended Charge, the Association alleges:
In some cases, the County of Los Angeles Deputy Sheriffs or
City of Los Angeles Police Department (LAPD) officers, in the
course of their duties, may have supplemented the school police
officers' show of force and have worked outside the actual
facility (meaning not effecting crowd control of the game),
including escorting buses or handling other peripheral matters.
However, in no case in the past has the District actually
contracted with or paid outside officers (including Los Angeles

LA-CE-4809-E
July 28, 2005
Page 3
County Deputy Sheriffs or LAPD) for their services. 	In the past
there services appear to be merely incidental.
Here, the Association alleges Los Angeles police and sheriff may have "worked" security at
high school football games, but not at the direction of the District and only outside the
football stadium.
In the Second Amended Charge, the Association alleges:
. . . [I]n no case in the past has the District actually used,
employed or hired outside law enforcement to actually work the
"event" or has the District assigned outside law enforcement to
the games such that it would affect the number of members of
Charging Party assigned to the game. In other words, if local
jurisdictions determined, on their own, to somehow have their
own law enforcement officers assigned to some impact (sic) from
the game (and not the game itself), doing so did not affect the
number of school police officers the District would assign.
Here, the Association alleges the District has never hired Los Angeles police or sheriffs to
work security at high school football games such that would affect the number of Association
security personnel assigned to the game.
On July 26, at my request, you and I spoke further about the allegations. I inquired about the
alleged past practice. 	You said, in the past, the District only used outside law enforcement to
supplement security at the District high school football games, but the District is now actively
using LA police and sheriffs to work security at football games and supplementing the
security staff with Association members. 	Upon further inquiry, you were unable to be
specific about whether the District had hired/paid LA police and sheriffs in the past; what
games the allegations were meant to address; or if, and how, the LA police and sheriffs were
being paid now.
First, the Association alleges the District hired both outside police and sheriff and Association
personnel to work security at District high school football games. 	Then, the Association
alleges the District did not hire or pay LA sheriff and police officers to maintain security at
District high school football games, but rather, LA sheriff and police officers in attendance at
District high school football games performed merely incidental security services outside the
games. 	But whether paid by the District or not, the facts allege LA sheriff and police officers
have been a presence and worked "security" at District high school football games for some
time. 	In other words, the Association security personnel and the LA sheriff and police have
overlapping security duties at District high school football games.
In the Second Amended Charge, the Association alleges the unilateral change as the District
now paying LA sheriff and police officers to work security at high school football games. 	The
Association further alleges LA sheriff and police officers are now being asked to work crowd

_______	 , ______	 _,_(_	 _______	 _
LA-CE-4809-E
July 28, 2005
Page 4
control inside the football stadium, and not simply security and traffic control outside the
football stadium.
The facts suggest LA sheriff and police have performed security duty along side the
Association security personnel for some time. The facts do not allege a discernible difference
between the security duties of the two groups. For example, security personnel control crowds
both inside and outside the football stadium. The Association docs not allege that Association
security personnel have ceased to perform security at District football games or been replaced
exclusively by the LA sheriff and police. 	Rather, the facts suggest LA sheriff and police
continue to perform security duty along side the Association security personnel. The ratio of
Association security personnel to LA sheriff and police officers may have changed, but under
Eureka City School District (1985) PERB Decision No. 481, a change in ratio is not a violation
of the MMBA. 	In this case, the facts do not support an allegation of unilateral change
transfer of bargaining unit work. Based on the facts and reasons contained herein and in my
June 17 warning letter, I am dismissing the Charge.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the ease
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 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 Regulation 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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916)327-7960
3PERB's Regulations are codified at California Code of Regulations, title 8, section
31003 et seq.

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LA-CE-4809-E
July 28, 2005
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. 	(Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. 	(See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. 	A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. 	(Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party, 	(Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By
Erin. 	Koch-Goodman
Regional Attorney
Attachment
cc: Holly R. Lake, Attorney

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STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
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Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
June 17, 2005
Michael A. Morguess, Attorney
Lackie & Dameier LLP
367 North Second Avenue
Upland, CA 91786
Re: 	Los Angeles School Police Association v. Los Angeles Unified School District
Unfair Practice Charge No, LA-CE-4809-E
WARNING LETTER
Dear Mr. Morguess:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 27, 2004.1 The Los Angeles School Police Association
alleges that the Los Angeles Unified School District violated the Educational Employment
Relations Act (EERA)2 by transferring bargaining unit work out of the unit.
The parties are subject to a collective bargaining agreement. The Association alleges that the
District has a long term past practice of using a minimum number of school police officers to
provide police services at District high school football games. 	The Association concedes that
the District has used County of Los Angeles Sheriff Deputies (LASD) to supplement the
school police officers' show of force at District high school football games in the past as well.
The Association does not believe that the District is reducing the overall number of security
personnel at each District high school football game, but rather, the District is reducing the
number of school police officers and increasing the number of LASD personnel at each game.
On October 13, Association Counsel, Dieter Dammeier, sent a letter to the District indicating
that "contracting out bargaining unit work without meeting and conferring amounts to an
unfair labor practice pursuant to the Educational Employee Relations Act."
On October 28, a District football game between Banning High School and Carson High
School took place at the Home Depot Center. Eight (8) school police officers worked the
game as well as an unspecified number of LASD personnel paid for by the Home Depot
Center. 	The Association alleges that in the past 16-20 school police officers were offered slots
to patrol the same game.
On November 6, a football game between Roosevelt High School and Garfield High School
took place at East Los Angeles College. 	Again eight (8) school police officers worked the
All dates hereafter refer to 2004 unless otherwise noted.
2 HERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

--~ ...
LA-CE-4809-E
June 17, 2005
Page 2
game as well as an unspecified number of LASD personnel paid for by East Los Angeles
College. 	The Association alleges that in the past 30 school police officer were offered slots to
patrol the same game.
The Association alleges that the District has committed a unilateral change by contracting out
bargaining unit work. 	In determining whether a party has violated EERA section 3543.5(c),
PERB utilizes either the "per se" or '•totality of the conduct" test, depending on the specific
conduct involved and the effect of such conduct on the negotiating process. 	(Stockton Unified
School District (1980) PERB Decision No. 143.) Unilateral changes are considered "per se"
violations if certain criteria are met. 	Those criteria are: 	(1) the employer implemented a
change in policy concerning a matter within the scope of representation, and (2) the change
was implemented before the employer notified the exclusive representative and gave it an
opportunity to request negotiations. 	(Walnut Valley Unified School District (1981) PERB
Decision No. 160; Grant Joint Unified High School District (1982) PERB Decision No. 196.)
PERB has held that the transfer of work from bargaining unit employees to those in a different
or no bargaining unit is a subject within the scope of representation. 	(Rialto Unified School
District (1982) PERB Decision No. 209.) However, not all transfers of bargaining unit work
are negotiable. 	In Eureka City Schools (1985) PERB Decision No. 481, the Board held that a
change in the distribution of duties between unit and non-unit employees, where there is an
established practice of overlapping duties, does not always give rise to a duty to bargain. In
Eureka, the Board stated that:
In our view, in order to prevail on a unilateral transfer of work
theory, the charging party must establish, as a threshold matter,
that duties were, in fact, transferred out of the unit; that is, that
unit employees ceased to perform work which they had
previously performed or that nonunit employees began to perform
duties previously performed exclusively by unit employees.
However, where, as here, unit and nonunit employees have
traditionally had overlapping duties, an employer does not violate
its duty to negotiate in good faith merely by increasing the
quantity of work which nonunit employees perform and
decreasing the quantity of work which unit employees perform.
[Emphasis in original; footnote omitted.]
A duty to bargain may still be found where there are negotiable effects such as a reduction of
hours in the bargaining unit positions (Id.) or if unit employees cease to perform the
-
overlapping work. (Calistoga Joint Unified School District (1989) PERB Decision No. 744.)
In this case, it seems the past practice has been to employ LASD personnel, as well as school
police officers, to patrol District high school football games. 	The Association does not allege
that bargaining unit employees have ceased to perform work which they had previously
performed or that LASD personnel began to perform duties previously performed exclusively
by the school police officers. 	Here, it seems that unit and nonunit employees have traditionally

LA-CE-4809-E
June 17, 2005
Page 3
had overlapping duties, and an employer does not violate its duty to negotiate in good faith
merely by increasing the quantity of work which nonunit employees perform and decreasing
the quantity of work which unit employees perform. 	Eureka, supra.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. 	The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before June 27, 2005, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Erin R. Koch-Goodman
Regional Attorney
EKG