San Francisco Community College District (PERB 0688EB)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
UNITED 	PUBLIC 	EMPLOYEES,
LOCAL 790, SEIU, AFL-CIO,
Charging 	Party,
v.
SAN 	FRANCISCO COMMUNITY COLLEGE
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1114
Remand 	from Court
PERB 	Decision Nos. 	688
688a
PERB 	Decision No. 	688b
December 	20, 	1989
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Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg, 	Attorney, 	for United Public Employees, 	Local 790, 	SEIU,
AFL-CIO; 	Liebert, 	Cassidy & Frierson by Jeffrey Sloan and
Nicholas T. 	Calderon, Attorneys, 	for the San Francisco Community
College 	District.
Before Hesse, 	Chairperson, 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on remand 	from the California
Court of Appeal, 	First Appellate District, 	Division Five.1 On
June 	27, 	1988, 	the Board 	issued San Francisco Community College
District 	(1988) 	PERB Decision No. 	688, 	wherein the Board reversed
its 	decision in San Francisco Community College 	District 	(1986)
PERB Order No. 	Ad-153 	that 	the 	San Francisco Community College
District 	(District) 	was 	the 	joint 	employer of 	the 	classified
1In Case No. 	SF-CE-1114, 	United Public Employees, 	Local 	790,
SEIU, 	AFL-CIO, 	the exclusive representative for classified
employees, 	alleged that 	the 	San Francisco Community College
District 	unilaterally 	adopted 	a 	policy 	barring 	classified
personnel who worked 	in the 	District 	from also 	serving 	as
certificated employees, 	in violation of section 3543.5(a), 	(b),
(c) 	and 	(d) 	of the Educational Employment Relations Act.
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employees working within the 	District. 	In San Francisco
Community College District, 	supra. 	PERB Decision No. 	688, 	the
Board held 	that 	the 	District 	and 	the 	City 	and County 	of 	San
Francisco were 	not 	joint 	employers 	of 	those 	classified 	employees
working within the District. 	Rather, 	the 	sole 	employer was 	the
City and County of 	San Francisco.2 Accordingly, 	the 	Board
dismissed the unfair practice 	charge 	and 	complaint. 	In San
Francisco Community College 	District 	(1988) 	PERB 	Decision No.
688a, 	the 	Board denied the 	request 	for reconsideration 	filed by
United Public Employees, 	Local 790, 	SEIU, AFL-CIO 	(Association).
Thereafter, 	the Association 	filed a writ 	of 	review with 	the
California Court of Appeal, 	First Appellate District, 	Division
Five.
On September 6, 	1989, 	the Court of Appeal 	in United Public
Employees. 	Local 790. 	SEIU. AFL-CIO v. 	Public Employment
Relations 	Board 	(1989) 	213 	Cal.App.3d 	1119 held that the 	District
2Originally, 	this 	case was 	consolidated 	for hearing with
Case No. 	SF-CE-1146 	involving the certificated employees'
exclusive representative. 	After the hearing, 	the administrative
law 	judge 	issued two 	separate proposed decisions. 	Both decisions
were 	appealed to 	the 	Board. 	In San Francisco Community College
District, 	supra, 	PERB Decision No. 	688 and San Francisco
Community College District 	(1988) 	PERB Decision No. 	703, 	the
Board dismissed 	the 	unfair practice 	charge 	and 	complaint 	based 	on
the 	finding 	that 	the 	District 	and 	the 	City 	and County 	of 	San
Francisco were not 	joint 	employers. 	While 	charging party 	filed a
request 	for reconsideration of PERB Decision No. 	703, 	neither
party appealed the decision. 	Consequently, 	PERB Decision Nos.
703 	and 703a 	(reconsideration) 	are not vacated. 	However, 	the
Board notes 	that the Court of Appeal, 	in its decision in United
Public Employees Local 790. 	SEIU. 	AFL-CIO v. 	Public Employment
Relations 	Board 	(1989) 	213 	Cal.App.3d 	1119, 	held that the
District 	and City 	and County 	of 	San Francisco 	are 	joint
employers.
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and 	the City and County of 	San Francisco 	are 	joint 	employers 	of
the 	classified 	employees, 	and 	concluded that 	the Association
should 	continue 	to 	bargain with the 	District 	over 	those 	matters
in which the District exerts 	authority and control, 	and with the
City 	and 	County of 	San Francisco 	over 	the 	areas 	within 	its
purview. 	Accordingly, 	the court annulled Decision Nos. 	688 	and
688a 	and remanded 	the case 	to 	the 	Board 	for 	further proceedings.3
As 	the court's 	decision is 	binding on the Board, 	PERB Decision
Nos. 	688 	and 688a are vacated. 	Consistent with the court's
decision 	that 	the 	District 	and 	the 	City 	and County 	of 	San
Francisco are 	joint 	employers, 	the 	Board rejects 	the 	District's
exception that 	PERB 	lacks 	jurisdiction because 	the 	District 	is
not 	a public 	school 	employer of 	classified 	employees 	under 	the
Educational 	Employment Relations Act.
In the proposed decision in Case No. 	SF-CE-1114 	(see
attached), 	the administrative law judge 	(ALJ) 	found that the
subject 	matter 	(i.e., 	the new policy regarding part-time
certificated 	staff) 	related 	solely 	to 	certificated 	employees 	and,
thus, 	was beyond the 	scope of representation for the exclusive
representative of the classified employees. 	On this basis, 	the
ALJ 	dismissed the unfair practice 	charge 	and complaint. 	As 	the
Board agrees with the ALJ 	that 	subjects 	relating 	to 	employees 	in
30n September 21, 	1989, 	the Board filed a petition for
rehearing with the Court of Appeal, 	First Appellate 	District,
Division Five. 	On October 4, 	1989, 	the court denied the petition
for rehearing. 	On October 	13, 	1989, 	the Board filed a writ of
review with the California Supreme Court. 	On November 21, 	1989,
the 	Supreme Court 	summarily denied the 	Board's writ 	of 	review.
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their 	capacity 	as 	certificated 	employees 	are beyond 	the
Association's 	scope of 	representation, 	the Board affirms 	the
ALJ's 	dismissal 	of 	the unfair practice 	charge 	and 	complaint 	in
Case No. 	SF-CE-1114.
ORDER
IT 	IS HEREBY ORDERED that PERB Decision Nos. 	688 	and 	688a
are VACATED, 	and the unfair practice 	charge 	and 	complaint 	in Case
No. 	SF-CE-1114 are DISMISSED.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
UNITED PUBLIC EMPLOYEES, 	LOCAL 790,
SEIU, AFL-CIO,
Charging 	Party,
v.
SAN 	FRANCISCO 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-1114
PROPOSED 	DECISION
(4/16/87)
Appearances: 	Van Bourg, 	Weinberg, 	Roger 	& Rosenfeld by-
Stewart Weinberg 	for United Public Employees, 	Local 	790, 	SEIU,
AFL-CIO; 	Ronald A. 	Glick 	for 	the 	San Francisco Community
College 	District.
Before: 	Barry Winograd, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On July 21, 	1986, 	the United Public Employees, 	Local 	790,
SEIU, 	AFL-CIO 	(Local 790 or SEIU), 	filed this charge against
the 	San Francisco Community College 	(District). 	SEIU alleged
that 	the District 	had unilaterally, 	without 	negotiations,
adopted 	a 	policy barring 	classified 	personnel 	who 	worked 	in 	the
District 	from 	also 	serving 	as 	certificated 	employees. 	This
conduct, 	in SEIU's view, violated sections 3543.5(a), 	(b), 	(c)
and 	(d) 	of 	the Educational 	Employment 	Relations Act 	(EERA or
A c t ) . 1
1 1The EERA 	is 	codified 	at 	Government Code 	section 3540, 	et
seq., 	and 	is 	administered 	by the 	Public 	Employment 	Relations
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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The 	PERB General 	Counsel 	issued 	a 	complaint 	on
October 	20, 	1986. 	This 	complaint 	alleged that 	the District
had, 	without notice 	and negotiations, 	altered 	its 	previous
policy 	of 	hiring 	certificated 	staff 	who 	also 	served 	as
classified 	employees.
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A settlement 	conference on November 	24, 	1986, 	failed 	to
resolve 	the dispute. 	The District's 	answer was 	filed
December 	17, 	1986, 	admitting certain facts, 	denying the alleged
unlawful 	conduct 	and 	advancing 	affirmative 	defenses.
Board 	(PERB or Board). 	Unless otherwise 	indicated, 	all
statutory 	references 	in 	this 	decision 	are 	to 	the 	Government
Code. 	Section 3543.5 	provides 	in 	relevant 	part 	that 	it 	shall
be unlawful 	for 	a 	public 	school 	employer 	to:
(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.
(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.
(d) 	Dominate 	or 	interfere with the 	formation or
administration of 	any employee organization, 	or
contribute 	financial 	or other 	support 	to 	it, 	or 	in 	any
way encourage 	employees 	to 	join 	any organization 	in
preference 	to 	another.
2The complaint 	stated that sections 3543.5(a), 	(b) 	and
(c) 	were violated, 	but was 	silent 	about 	the charging party's
claim regarding 	section 	3543.5(d). 	That 	provision was 	not
cited 	again by the 	charging 	party, 	either 	at 	the 	hearing 	or 	in
its 	brief, 	and will 	not 	be considered 	in this decision.
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Admissions, 	denials 	and defenses will 	be considered below where
relevant.
The 	hearing 	was 	consolidated with 	another 	case 	raising
similar 	issues of 	law and fact, 	Case No. 	SF-CE-1146. 	That
unfair 	practice 	charge was 	filed 	by 	the 	San Francisco 	Community
College Federation of Teachers, AFT 2121 	(Federation), 	the
exclusive 	representative 	of 	certificated 	employees 	in 	the
District. 	Separate decisions 	in the 	two 	cases 	are 	being 	issued
on this 	date.
Post-hearing 	briefs 	were 	filed 	by 	the 	parties 	and 	the
matter was 	submitted on March 	16, 	1987.
FINDINGS 	OF 	FACT
Local 	790 	is 	the 	exclusive 	representative 	of 	the District's
classified 	employees, 	voluntarily 	recognized 	as 	such by 	the
District 	in February 	and March 	1986. 	Following 	recognition,
various 	bargaining 	proposals were made 	by SEIU, 	including 	one
or more 	bearing upon the 	subject matter 	of 	this 	dispute; 	that
is, 	classified employees 	also working 	as 	part-time certificated
staff. 	The details 	of 	such proposals 	are not 	at 	issue 	in 	this
case.
For 	a 	period 	of 	time 	preceding 	recognition of 	the 	union,
and continuing 	to 	the present, 	the District has 	claimed 	that 	it
is 	not 	a 	public 	school 	employer 	of 	classified employees 	under
the 	EERA because 	the 	City 	and County of 	San Francisco 	has 	the
legal 	authority, 	by statute 	and charter, 	over the working
conditions 	of 	that 	portion of 	the District workforce. 	The City
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and County, 	as 	an employer, 	is under 	the 	labor 	relations
jurisdiction of 	the Meyers-Milias-Brown Act 	(MMBA) 	(sec. 	3500,
et 	seq.).
This 	objection 	by the 	District 	was 	considered 	and 	rejected
in 	a 	decision by the Board 	itself: 	San 	Francisco 	Community
College District 	(1986) 	PERB Order No. 	Ad-153.3 That
decision, 	however, 	was 	based on 	an 	interlocutory appeal 	and,
after 	the 	District's 	unsuccessful 	attempt 	to 	secure
extraordinary 	appellate 	relief, 	the case was 	remanded 	to 	a
hearing 	officer. 	Ultimately, 	the 	case was 	dismissed without 	a
hearing 	on the merits. 	In this 	context, 	the PERB decision on
the District's 	employer 	status 	under 	the EERA was 	not 	a 	final,
preclusive 	adjudication, 	because 	the 	legal 	issue was 	not
subject 	to 	appellate 	review 	(Chern v. 	Bank of America 	(1976)
15 Cal. 	3d 866, 	871-72), 	but it does serve as Board precedent,
unless 	and until 	it 	is 	subsequently modified.
The 	facts 	relevant 	to 	this 	case, 	apart 	from the
jurisdictional 	issue, 	are essentially undisputed.
For 	years, 	the District 	has 	hired part-time certificated
staff, 	mostly for 	instructional purposes, 	on a
semester-to-semester 	schedule. 	These 	employees 	are 	selected 	on
the basis 	of 	individual 	qualifications 	for 	specific 	courses 	or
3Administrative 	notice 	has 	been taken of 	the 	PERB's
official 	records 	involving 	PERB Order 	No. 	Ad-153 	and 	the
underlying proceeding, 	Case No. 	SF-CE-884. 	(See Antelope
Valley Community College District 	(1979) 	PERB Dec. 	No. 	97 	at
p. 	23.)
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projects 	and 	are 	paid 	an hourly wage. 	Some of 	the District's
part-time 	certificated 	employees 	also work 	in 	the 	District 	as
full-time 	classified 	employees.4
Certificated 	employees 	of 	the 	District 	are 	represented 	by
the 	Federation 	and 	are 	the 	subject 	of 	a 	bargaining 	agreement
between 	that 	union 	and 	the District. 	Among 	other 	provisions
applicable 	to 	part-time 	staff, 	the Federation contract 	contains
a 	salary schedule, 	a termination appeal 	procedure, 	and 	limited
preferential 	rehiring 	rights. 	The 	certificated 	agreement 	also
sets 	forth various 	management 	rights 	regarding 	employer 	control
over 	the 	selection 	and 	assignment 	of 	the workforce.
Early 	in June 	1986, 	the District's management was 	analyzing
the 	impact 	of 	new 	regulations 	and 	guidelines 	applying 	the
federal 	Fair 	Labor 	Standards Act 	(FLSA) 	to 	the 	salaries 	paid by
state 	and 	local 	employers.55 In conjunction with 	this
analysis, 	the District's 	personnel manager contacted 	the
Department 	of 	Labor 	and 	prepared 	a 	report 	and
4 The 	District's 	brief 	submitted with 	its 	answer 	in 	the
consolidated 	Federation case 	asserted 	that 	about 	10 	to 	15 	of
1,000 	part-time 	certificated 	employees 	also work 	as 	classified
personnel. 	There was 	no 	specific 	testimony or 	documentary
evidence 	on 	this 	point, 	although 	references 	during 	the 	hearing
suggest 	that 	the 	number 	of 	dual 	capacity employees was 	small.
5In	5rn _Garcia 	v. 	San Antonio Metropolitan Transit 	Authority
(1985) 	105 	S.Ct. 	1005, 	the Supreme Court upheld application of
the minimum wage 	and hour 	provisions 	of 	the FLSA 	(29 	U.S.C,
sec. 	201, 	et seq.) 	to local transit workers. 	Thereafter, 	the
Department 	of 	Labor 	promulgated 	regulatory 	standards.
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cost 	projection 	on whether 	and 	how much 	the District 	would 	have
to 	pay under 	the 	FLSA 	as 	overtime 	compensation 	to 	part-time
certificated 	staff 	who 	also were 	classified employees.
The 	personnel 	manager's 	analysis 	and 	calculations 	based 	on
the 	information conveyed was 	that 	the 	District would be
required 	to 	pay overtime 	for 	the dual 	capacity employees 	in
each capacity they 	served, 	even though certificated 	staff, 	as
professional 	employees, 	are otherwise exempt 	from the FLSA.
If, 	as 	the District previously had 	argued, 	classified 	and
certificated 	employees worked 	for 	different 	employers, 	there
would be 	no 	need under 	the 	FLSA to 	combine 	the working 	hours 	of
different 	classifications 	for 	overtime calculations. 	In this
situation, 	however, 	since the primary work of 	the part-time
certificated 	staff was 	in 	a 	covered 	capacity 	for 	the 	same
employer 	(that is, 	as classified personnel), 	the professional
exemption would not 	apply. 	In addition, 	as 	the District
understood 	the 	law, 	the 	higher 	base 	salary payable 	to
certificated 	staff 	also 	inflated 	the 	classified 	pay 	scale 	for
the 	purpose of 	overtime computations.
Based 	on 	this 	review 	and 	related 	conversations, 	the
District's 	chancellor on June 24, 	1986, 	issued a new policy
statement. 	Initially, 	noting 	that 	the FLSA became 	applicable
on April 	15, 	1986, 	he observed that there was 	"much confusion
regarding 	specific provisions 	of 	the Act, 	and the 	application
of 	those provisions" 	to 	certificated 	staff. 	He 	stated that 	a
new 	policy was 	being 	adopted 	after 	having 	consulted with
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District 	officials 	and 	administrators.
This 	new policy had 	three parts: 	(1) 	classified employees
without 	certificated 	spring 	1986 	assignments 	would 	not 	be
granted 	any such assignments 	in the future; 	(2) 	classified
staff who 	had worked 	in 	certificated 	positions 	in 	spring 	1986
could be given 	such 	assignments 	in 	fall 	1986 	only, 	with none
thereafter; 	and, 	(3) 	certificated assignments 	in fall 	1986
could 	not 	exceed 	the number 	of 	hours 	assigned 	in 	spring 	1986.
Full 	implementation 	of 	the 	new part-time 	certificated 	staff
policy was 	delayed 	to 	spring 	1987 because, 	the 	chancellor 	said,
"staffing 	difficulties" 	were 	anticipated.
The chancellor's June 24, 	1986, 	policy statement was
adopted 	without 	advance 	notice 	or 	negotiations 	with 	SEIU.
There was 	no 	evidence offered by the District, 	in the 	form of
an explicit 	federal directive or 	rule, 	requiring 	the District
to 	adopt 	the 	specific policy 	set 	forth by the 	chancellor. 6
Once 	informed of 	the chancellor's 	new policy, 	Local 	790
protested 	the 	decision 	and 	requested 	restoration 	of 	the 	status
quo 	pending 	the outcome 	of 	negotiations. 	The District 	has
conceded, 	in 	its 	pleadings 	and 	in the 	testimony of 	its
personnel 	manager, 	that 	negotiations with SEIU did 	not 	take
place 	and 	that 	the 	new policy has 	gone 	into effect. 	As 	a
6 As 	testimony 	revealed, 	other 	full-time 	San Francisco
civil 	service 	employees 	represented 	by Local 	790 	may continue
to 	serve 	as 	part-time certificated 	staff 	in the District; 	the
policy 	applies 	only 	to 	classified 	employees working 	in 	the
District.
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result 	of 	the new policy, 	individuals who would have 	received
certificated 	assignments 	in 	spring 	1987 	have 	not.
CONCLUSIONS 	OF LAW
SEIU contends 	in 	its 	brief 	that 	the District's 	new policy
"effects 	the 	livelihood, 	income, 	benefits, 	hours 	and working
conditions 	of 	classified employees," 	and 	that 	extra work hours
for 	classified employees 	are 	a matter 	for 	negotiations, 	not
unilateral 	action.
The District 	advances 	several 	defenses. 	These 	include 	the
jurisdictional 	objection previously mentioned, 	as well 	as
various management 	rights claims. 	The District 	also 	argues, 	as
a 	primary defense, 	that 	subjects 	related 	to certificated 	staff
are 	beyond 	the 	scope of 	representation 	for 	the 	classified
employee union. 	This 	objection 	is well-taken 	for 	the 	reasons
stated 	below. 	Given 	this 	conclusion 	sustaining 	the District's
scope objection, 	in the 	interest 	of 	economy there 	is 	no need 	to
rule upon 	the 	other defenses 	put 	forward by the employer.7
Section 	3543.2 	of 	the EERA states 	that 	the 	scope of
representation" 	. 	. 	. 	shall be limited to matters 	relating to
7The 	jurisdictional 	defense 	apparently 	raises 	issues
involving 	fundamental 	subject matter 	jurisdiction, 	as well 	as
the 	exercise 	of 	the 	PERB's 	discretionary jurisdiction. 	The
core 	question 	of 	subject 	matter 	jurisdiction 	has 	been 	answered
in the 	aforementioned PERB Order No. 	Ad-153, 	although the
application of 	that 	jurisdictional 	precedent 	depends 	on 	the
exercise 	of 	the 	Board's 	discretion 	to 	draw boundary 	lines
dividing 	the 	PERB's 	jurisdiction under 	the 	EERA 	from matters
which fall under the MMBA. 	(Id., 	at pp. 	16, 	19.) 	As stated-
above, 	the present dispute can be 	resolved without 	engaging 	in
such 	a 	complex 	line-drawing 	exercise.
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wages, 	hours 	of employment, 	and other 	terms 	and conditions of
employment." 	Several 	Board 	decisions 	support 	the 	general
proposition 	that 	extra work 	assignments 	and 	overtime 	are
negotiable 	subjects 	because 	of 	the 	relationship 	to wages 	and
hours.8 Nonetheless, 	despite 	the general negotiability of
overtime 	assignments, 	the bargaining 	rights 	of 	exclusive
representatives 	are 	strictly defined by 	section 	3543.l(a) 	of
the Act:
. 	. 	. 	once an employee organization is
recognized 	or 	certified 	as 	the 	exclusive
representative of an appropriate unit 	. 	. 	.
only 	that 	employee 	organization may
-represent 	that 	unit 	in their 	employment
relations with 	the 	public 	school 	employer.
(Emphasis 	added.)
It 	is 	this 	provision, 	and Board decisions 	construing 	the
rights 	of 	exclusive 	representatives, 	that 	require dismissal 	of
the 	instant 	complaint 	because 	negotiations 	by 	SEIU 	and 	the
District 	over 	certificated 	employment 	issues 	would 	subvert 	the
8 See, 	e.g., 	Lincoln Unified School District 	(1984) 	PERB
Decision No. 	4 65; 	State of California 	(Department of
Transportation) 	(1983) 	PERB Decision No. 	361-S; 	Oakland Unified
School District 	(1983) 	PERB Decision No. 	367. 	Wages 	and hours
also may be 	negotiable 	in cases 	involving 	the 	transfer 	of work
from one bargaining unit to 	another. 	(See, 	e.g., 	Solano County
Community College District 	(1982) 	PERB Dec. 	No. 	219; 	Rialto
Unified School District 	(1982) 	PERB Dec. 	No. 	209.) 	This
approach, 	however, 	will 	not 	justify negotiations 	in this 	case
because 	the 	part-time 	certificated work has 	never 	been
considered 	the work of 	the 	classified 	unit.
99

principle 	of 	exclusivity.
•
In 	some of 	the earliest 	cases 	decided by the PERB, 	it 	has
limited 	the 	right 	of 	unions 	to 	negotiate 	over working
conditions 	for 	employees 	represented 	by 	another 	union. 	In
Hanford 	Joint Union High 	School 	District 	(1978) 	PERB Decision
No. 	58, 	for example, 	the Board dismissed a charge filed by a
non-incumbent 	organization 	alleging 	an 	employer's 	unlawful
unilateral 	adoption of 	the 	school 	calendar. 	The 	conduct 	at
issue 	occurred 	prior 	to 	the 	time 	a 	competing 	organization
became 	the exclusive representative. 	The charge, 	however, 	was
filed 	after 	the 	recognition. 	In 	light 	of 	the 	intervening
recognition, 	the 	Board 	reasoned 	that 	allowing 	one union 	to
intercede 	in 	the 	affairs 	of 	an 	exclusive 	representative would
create 	possibilities 	of 	mischief 	and 	interfere with 	the
exercise 	of 	negotiating 	judgments.
10	10
In 	other 	Board 	decisions 	determining 	the 	negotiability of
9Other 	provisions 	of 	the EERA 	also 	are 	relevant: 	sections
3540.l(b), 	(e), 	(h) and (1) define "certified organization,"
"exclusive 	representative," 	"meeting 	and 	negotiating," 	and
"recognized organization," 	respectively. 	Section 	3543.3 	states
that 	the 	employer's 	duty to 	negotiate 	is 	"with 	and 	only with
representatives 	of 	employee 	organizations 	selected 	as 	exclusive
representatives 	of 	appropriate units 	upon 	request with 	regard
to matters within 	the 	scope of 	representation." 	Bargaining
violations 	of 	section 3543.5(c) 	only arise 	for 	a 	refusal 	or
failure 	to 	negotiate 	"with 	an exclusive 	representative."
10Id 10Id. at p. 8. 	Similar restraints on the involvement of
nonexclusive 	representatives 	were 	approved 	in Mount 	Diablo
Unified School District 	(1978) 	PERB Decision No. 	68, 	and Santa
Ana Unified School District 	(1978) 	PERB Decision No. 	73.
10

contract 	proposals, 	the PERB has 	confined exclusive
representation to employees 	in the designated unit. 	Thus, 	in
Healdsburg Union High 	School 	District 	(1984) 	PERB Decision
No. 	375, 	certain hiring proposals were deemed non-negotiable
because 	they 	concerned 	short-term 	and 	substitute 	employees 	who
were 	not 	part 	of 	the bargaining unit.11	11
Decisions 	of 	the 	PERB 	on 	related 	bargaining 	issues 	also
support 	the 	principle of 	exclusivity, 	particularly 	in the
context 	of 	section 3545(b)(3) 	of 	the EERA, 	a provision erecting
a 	statutory wall 	separating 	classified 	and 	certificated
bargaining. 	That 	section 	states: 	"Classified employees 	and
certificated 	employees 	shall 	not 	be 	included 	in 	the 	same
negotiating 	unit."
In Gilroy Unified 	School 	District 	(1984) 	PERB Decision No.
471, 	the 	PERB held that 	release time was 	permissible 	for
coordinated 	bargaining 	by 	classified 	and 	certificated 	units
represented 	by 	the 	same union, 	but 	that 	such 	release 	time would
not 	be 	proper 	if 	the bargaining was merged, 	thereby destroying
the 	independent 	identity of 	the units. 	Subsequently, 	in
Banning Unified School 	District 	(1985) 	PERB Decision No. 	536,
petition 	for 	review granted 	sub nom. 	Banning Unified 	School
District 	v. 	Public Employment 	Relations 	Board.
1 1 Id. at pp. 	38-39, 	41-42. 	Negotiations over aspects of
non-unit 	student 	employment were 	permissible, 	but 	only to 	the
extent 	the proposal 	concerned 	the 	preservation 	of 	unit work.
(Id. 	at pp. 	42-43.)
11

No. 	LA-32300 	(Jan. 	29, 	1987), 	the Board concluded that a salary
parity 	clause 	negotiated with 	a 	classified 	unit 	did 	not
constitute 	a 	per 	se 	intrusion 	on 	the 	bargaining 	rights 	of 	the
certificated 	representative, 	although 	a 	violation might 	be
found 	in 	later 	case-by-case 	analyses 	if 	independent
negotiations 	actually were 	impeded.
Unions 	who 	are 	not 	exclusive 	representatives 	also 	receive 	a
measure 	of 	protection 	in 	the 	event 	non-unit 	employees 	complain
that 	the union has 	not 	protected 	the employee 	rights. 	For
example, 	in Los Angeles Unified 	School 	District/United Teachers
of Los Angeles 	(Wadsworth) 	(1986) 	PERB Decision No. 	599, 	a
non-unit 	substitute 	teacher 	alleged 	that 	the 	union deprived 	her
of 	fair 	representation by 	failing 	to 	pursue 	a 	contractual
grievance on her behalf. 	The Board concluded, 	however, 	that
the union's 	duty did not 	extend 	to 	protecting 	employees 	outside
the 	bargaining 	unit.
The 	PERB's 	multifaceted 	treatment 	of 	the 	exclusivity
principle 	and 	an employer's 	duty to 	negotiate 	is 	consistent
with 	traditional 	labor 	relations 	doctrine. 	As 	one commentator
has 	observed:
[B]argaining on a pluralistic basis, 	with
each 	individual 	or 	group 	speaking 	for
itself, 	generates 	a 	severe 	risk of employer
domination or 	interference, 	of divisiveness
and 	inequality 	of working 	conditions 	within
the plant, 	and of 	economic 	strife—all of
which undermine 	the 	fundamental
congressional 	objective 	of 	stablizing
industrial 	relations 	and minimizing
disruptions 	in 	interstate commerce.12
12Gorman, 	Basic Text on Labor Law, 	at p. 	379.
12

A 	restrictive 	view of 	representational 	rights 	also 	is
consistent 	with 	the 	leading 	federal 	labor 	relations 	precedent
regarding 	an 	employer's 	duty to 	bargain 	over 	the 	interests 	of
non-unit 	individuals. 	In Allied Chemical 	& Alkali Workers 	v.
P.P.G. 	Co. 	(1971) 	404 U.S. 	157, 	the Supreme Court held that
retirement 	benefits 	for 	retired 	employees 	were 	not 	negotiable.
The holding was 	based on two 	theories: 	first, 	that 	the 	retirees
were 	not 	employees 	within 	the 	statutory definition; 	and,
second, 	relevant here, 	that 	the 	retirees were not 	included 	in
the 	bargaining 	unit.13 	This 	conclusion was 	not 	altered 	by
reference 	to 	the 	industrial 	practice of 	negotiations 	by 	some
employers 	and 	unions 	over 	retirement 	benefits: 	"Common 	practice
cannot 	change 	the 	law 	and make 	into 	bargaining 	unit 	'employees'
those who are not."14
13
The 	reasoning 	described 	in 	the 	cases 	and 	comments 	above
compels 	dismissal 	of Local 	790's 	bargaining complaint. 	In this
situation, 	SEIU seeks 	to negotiate 	terms 	and conditions 	of
certificated, 	not classified employees. 	If, 	for example, 	the
District 	negotiated 	a 	minimum hour 	or wage 	agreement with 	SEIU
in order 	to preserve the extra 	assignments 	of 	previous years,
the Federation, 	as 	the exclusive certificated 	representative,
could 	rightfully object 	to 	interference with 	its 	lawful 	domain.
1 3 Id. 	at pp. 	171-175.
1 4 Id. 	at p. 	176.
13

Conversely, 	if the Federation, 	in response to the
District's 	new policy and 	the demands 	of 	the FLSA, 	negotiated 	a
limit 	on the use of 	part-time certificated 	staff, 	with 	a
resulting 	increase 	in the 	hours 	and wages 	of 	full-time
employees, 	the 	classified unit 	bargaining 	agent would 	be
powerless 	to 	demand 	negotiations 	over 	a 	different 	arrangement
that 	might 	preserve 	the 	extra 	assignments 	that would 	now be
reduced.
The 	prospect 	for 	conflicting 	union 	interests 	was 	heightened
by the 	facts 	of 	this 	case which 	indicate 	the District's
confusion over FLSA requirements, 	as well 	as 	a delay in 	full
implementation 	of 	the 	new policy because 	of 	concern 	about
staffing 	difficulties. 	While 	SEIU and 	the 	Federation might
agree 	on how 	these 	issues 	should 	be 	resolved, 	the 	two 	unions
might 	also 	be 	in 	fundamental 	disagreement 	and 	susceptible 	to
employer 	interference. 	Briefly stated, 	bargaining 	over
certificated 	employee 	status 	is 	for 	the 	Federation 	and 	the
District, 	without 	the involvement of 	another, 	possibly
competing 	union.
Further, 	there has 	been no 	showing 	in 	this 	case 	that 	the
District's 	new policy had 	any negotiable 	impact 	on 	the wages,
hours or working conditions 	of 	the classified employees JLS
classifieds. 	Classified employees were not deprived of
promotions within 	the unit 	or 	reassignment 	to 	other unit work.
Nor were classified employees 	required 	to work more, 	or 	to be
paid 	less 	on 	the 	classified 	salary schedule. 	While 	there might
14

have 	been 	an 	inflationary 	effect 	on 	the 	classified 	pay 	scale
when 	an 	employee 	also 	served 	in 	a 	certificated 	capacity,
assuming 	the District's 	FLSA 	interpretation was 	correct, 	the
impact 	on 	classified 	employees 	was 	indirect 	and 	derivative.
Thus, 	as 	a practical matter, 	the District's new policy
eliminated 	a 	differential 	arising 	out 	of 	and 	attributable 	to
certificated 	staff 	work, 	leaving 	intact 	the 	classified 	pay
scale 	for classified work. 	In this 	context, 	Local 	790's
bargaining demand over 	the new policy, 	conscientious 	though 	it
may have been 	for 	several members 	of 	its 	unit, 	exceeded 	the
statutory bounds 	of 	the union's 	authority. 15
A 	limitation 	on Local 	790's 	negotiating 	rights 	is 	supported
not 	only by 	the 	hypothetical 	examples 	of 	bargaining 	unit
conflicts 	that 	could 	arise 	if 	the 	Federation 	and 	SEIU 	sought 	to
negotiate over 	the 	same part-time positions, 	but by the
realistic 	potential 	for 	such 	conflicts 	in 	the 	everyday world 	of
California's 	public 	sector 	labor 	relations. 	The 	stage 	for
possible union conflicts 	(and employer 	interference) 	across
15This 	is 	not 	to 	say 	that 	SEIU would 	be precluded 	from
PERB 	relief 	regarding 	negotiations 	or 	policies 	that 	did 	have 	an
impact 	on its 	representational 	interests. 	For example, 	a
proper 	charge 	presumably would 	be 	stated 	if 	the 	Federation 	and
the 	District 	negotiated 	a 	contract 	clause 	that 	completely
eliminated 	SEIU's 	access 	or 	communication 	rights 	under 	section
3543.l(b). 	These 	rights 	are not dependent on exclusivity and,
it may be 	assumed, 	they cannot 	be 	abrogated by third 	parties 	in
negotiations. 	(Cf. 	Richmond Unified School District 	(1979)
PERB Dec. 	No. 	99 	(access to internal mail system); 	Chula Vista
City School District 	(1978) 	PERB Dec. 	No. 	70 	(expression of
views 	at 	school 	board meeting).)
15

jurisdictional 	lines 	has 	been 	set 	by the 	PERB's 	determination
that 	a 	certificated 	employee 	representative 	also 	can
exclusively 	represent 	classified 	employees 	of 	the 	same
employer. 16
Recent 	reports 	indicate 	as well 	that 	a 	"union battle of
potentially huge 	proportions 	appears 	to 	be 	on 	the 	horizon,"
referring 	to 	a 	decision by 	a major 	certificated union 	to 	embark
on 	a widespread 	organizational 	drive 	to 	represent 	classified
employees.17 If 	bargaining 	rights 	for 	SEIU were 	recognized
in 	this 	instance, 	it might 	trigger 	retaliatory 	interference 	in
classified employee 	affairs, 	to 	the 	long 	term detriment 	of 	SEIU
as well 	as 	the principle of 	exclusivity.
Finally, 	in 	light of 	the considerations 	set 	forth above,
the 	authority cited 	by Local 	790 	does 	not 	support 	its
bargaining 	claim. 	In American Federation of 	State, 	etc.
Employees v. 	City of Santa Clara 	(1984) 	160 Cal.App.3d 1006, 	a
city was 	obliged 	under 	the MMBA 	to 	negotiate 	over 	a 	reduction
of 	overtime 	pay 	for 	employees 	who 	previously had 	been 	paid 	at
their 	bargaining 	unit wage 	rate 	for 	extra 	duty volunteer
assignments. 	Although 	it 	does 	appear 	that work unrelated 	to
normal 	unit work was 	involved, 	the 	Santa Clara 	case does 	not
concern the 	right 	to negotiate over wages, 	hours 	and working
16Redlands Unified 	School District 	(1982) 	PERB
Dec. No. 235.
17NEA Extends 	Organizing 	to 	Classified 	Employees," 	70
Cal. Pub. Employee Rel.. Sept. 	1986, at pp. 37-38.
16

conditions 	of 	employees 	in 	another 	bargaining 	unit. 	Indeed,
two unions were plaintiffs 	in that 	case, 	pressing 	the 	interests
of 	their 	respective 	bargaining 	unit 	employees.
Nor 	is 	SEIU's 	argument 	supported 	by Dublin 	Professional
Fire 	Fighters. 	Local 	1885 	v. 	Valley Community Service District
(1975) 	45 	Cal.App.3d 	116. 	The union 	in Dublin sought
negotiations 	over 	a 	new employer 	policy of 	using 	temporary
employees 	for 	overtime work, 	thereby depriving 	permanent 	unit
employees 	of 	priority for overtime assignments. 	Again, 	while
the overtime 	had 	been considered voluntary in the past, 	it was
preservation of unit work that was 	at 	stake, 	not 	protection of
the 	right 	to work outside 	the unit 	in 	a 	classification
represented 	by 	another 	union.
PROPOSED 	ORDER
Based on the findings 	of 	fact, 	conclusions 	of 	law, 	and the
entire 	record 	in this case, 	the charge 	and 	the complaint 	in
Case No. 	SF-CE-1114 	is DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final 	unless 	a party files 	a 	timely statement of
exceptions with 	the 	Board 	itself 	at 	the headquarters 	office 	in
Sacramento within 20 days 	of 	service of 	this Decision. 	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. 	See
California Administrative Code title 	8, 	part 	III,
17

section 	32300. 	A document 	is 	considered 	"filed" 	when 	actually
received 	before 	the 	close of 	business 	(5:00 	p.m.) 	on the 	last
day set 	for 	filing, 	". 	. 	. o r when sent by telegraph or
certified 	or Express 	United 	States 	mail, 	postmarked 	not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Code of
Civil 	Procedure 	section 	1013 	shall 	apply. 	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 California Administrative Code,
title 8, 	part III, 	sections 32300, 	32305, 	and 32140.
Dated: 	April 	16, 	1987
BARRY 	WINOGRAD
Administrative 	Law 	Judge
18