LOS ANGELES COMMUNITY COLLEGE DISTRICT v. CLASSIFIED UNION OF SUPERVISORY EMPLOYEES LOCAL 699 AFL CIO

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Court of Appeal, Second District, Division 2, California.

LOS ANGELES COMMUNITY COLLEGE DISTRICT, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, CLASSIFIED UNION OF SUPERVISORY EMPLOYEES LOCAL 699, Service Employees International Union, AFL–CIO, Real Party in Interest.

Civ. 59951.

Decided: June 16, 1981

Robert J. Henry, Gen. Counsel, Mary L. Dowell, Associate Gen. Counsel, Los Angeles Community College Dist., Los Angeles, for petitioner. Fred D'Orazio, Allen R. Link, for respondent. Helena S. Wise of Geffner & Satzman, a Professional Corp., Los Angeles, for Real Party in Interest.

Petition for Extraordinary Relief in the nature of Administrative Mandamus.   Writ granted.

FACTS

The Los Angeles Community College District (“District”) brought this proceeding to compel the Public Employment Relations Board (“Board”) to vacate PERB Decision No. 123 of March 25, 1980 in Case No. LA–R–809, which decided that Local 99 and Local 699, although both are locals of the Service Employees International Union (“SEIU”), are not “the same employee organization” as defined by Government Code § 3545 (b)(2), and make a new and different order that they are the same employee organization.

Local 699, SEIU, AFL–CIO, is the Classified Union of Supervisory Employees;  Local 99 is the local which represents rank and file classified employees.   The District excepted to the proposed decision of the Board, arguing that the International Union “so supports, influences and dominates its subsidiary locals as to require a finding that the ‘same organization’ seeks to represent supervisors and those supervised by them.”

The matter arose in September, 1977 when Local 699 requested recognition from the Los Angeles Community College District for a unit of approximately 136 classified supervisory employees.   On October 13, 1977 the District filed its response in accordance with California Administrative Code, Title 8, Section 33190, taking the position that SEIU Local 99 represents the nonsupervisory classified employees who are supervised by the employees in Local 699 which was seeking recognition.   After an investigation by the Los Angeles Regional Director of the Board, findings of fact were issued January 25, 1978 with the recommendation that a hearing be held.   The hearing was held March 28, 1978 and five depositions were admitted into evidence as part of the record.   SEIU Local 699 waived its right to file a brief, and the District's brief as filed April 21, 1978.

Local 699 came into existence after Barnes, a classified supervisory employee, approached Smith, a representative of Local 99, and inquired about representation for supervisory employees.   Organizers from SEIU International were assigned to organize Local 699.   These were Anderson and Zuniga.   Zuniga was instrumental in preparing the Constitution and By Laws of the new local, and became provisional Secretary-Treasurer though not himself a supervisory Community College employee.   A certain amount of impetus for supervisory employees to join Local 699 came from Luna, a representative of Local 99, and Local 699 occupied space in a building owned by Local 99.

Baker, a supervisory employee for ten years, testified that he had continued to pay dues to Local 99, a non-supervisory union, all that time.   The custodians he supervised were represented by the same Local.   While a supervisor, he solicited employees to join Local 99.   On the date of his deposition, all fifteen employees supervised by Baker belonged to Local 99.

Zuniga testified that his assignment was to work on the organization of Local 99 and Local 699.   Even after Local 99 was certified on May 27, 1977, and at a time when Zuniga was apparently serving as Secretary-Treasurer of Local 699, Zuniga performed services for Local 99, including representing certain employees in grievance proceedings.   Zuniga prepared the request for recognition for Local 699 on stationery of Joint Council No. 8, Service Employees of Southern California, using a Joint Council secretary.   The By Laws of Local 699 were run off on duplicating equipment belonging to Joint Council No. 8, which occupies the same building as Local 99 and Local 699.   Zuniga testified that there was an oral agreement between Anderson and himself on the one hand, and McDermott, who is in charge of Joint Council No. 8, that Local 699 could use space rented by the Joint Council in the building owned by Local 99.   Zuniga further testified that a majority of the members of Local 699 were members of Local 99.

In response to a question whether Article XV of the Constitution and By Laws of the SEIU requires each Local of that Union to support other Locals, Zuniga testified that, hypothetically, members of Local 699 would by urged not to cross picket lines of Local 99, should Local 99 go out on strike and set up picket lines.   In his opinion, crossing a picket line would violate Article XV of the Constitution and By Laws of the International Union.

It should be noted that Article V, Section 4. requires that officers of Local 699 must be members of that Local, and Zuniga testified that he is not a member, although serving as Secretary-Treasurer of the Local.

DISCUSSION

California Government Code § 3545 (b)(2) provides as follows:

“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.”

It seems clear from what legislative history, analysis and comment is available that when the Educational Employment Relations Act was under consideration, it was analogized to the Labor Management Relations Act, 1947.   The latter act does not permit supervisory personnel to form their own, separate negotiating units for purposes of collective bargaining.

California apparently did not wish to exclude supervisory personnel from the possibility of organization, but seems to have wished them not only not to be in the same unit as those they supervised, but also not to be in the “same employee organization”.   One analyst at the time substituted the word “union” for “same employee organization”.   The Board itself, in its proposed decision dated June 23, 1978 in this case, at page 15, seems to equate “employee organization” with a union.   This seems the purport of the decision in Fairfield-Suisan Unified School District, PERB Decision No. 121 dated March 25, 1980 as well.

The California Legislature could have:

1.  Precluded any organization of supervisory employees;

2.  Precluded representation of supervisory employees by an ‘employee organization’ which was affiliated directly or indirectly with an ‘employee organization’ that represents non-supervisory employees;

3.  Precluded inclusion of supervisory employees in the same ‘unit’ with non-supervisory employees;

4.  Permitted inclusion of the two groups in the same ‘employee organization’ though in separate units;

5.  Permitted inclusion of the two groups in the same ‘unit’.

 We take the word “unit” to mean a local of a particular union.   We take the phrase “employee organization” to mean “union”.   The Board concluded, in PERB Decision 123, that the Legislature intended the result set forth in item 4., above.   We conclude that the Legislature intended the result set forth in item 2., above.

Even if we assume, for purposes of argument only, that the Board is correct—and we do not think so—there is no substantial evidence to support the Board's result.   To the contrary, the evidence indicates such an identity of interest and function between the Locals, and such control by the International as to lead us to believe that the Legislature very wisely chose the position set forth in item 2., above.

We think also that, once the Chairperson of the Board declared he would not participate (he was a former official of a local of the SEIU), his ultimate vote was questionable.

DISPOSITION

 Let a peremptory writ of mandate issue requiring respondent Public Employment Relations Board of the State of California to vacate PERB Decision No. 123 of March 25, 1980 which decided that Local 99 and Local 699, although both are locals of the Service Employees International Union, are not “the same employee organization” as defined by Government Code § 3545 (b)(2) and make a new and different decision that they are the same employee organization.

ROTH, Presiding Justice.

FLEMING and BEACH, JJ., concur.