San Francisco Community College District (PERB 0703E)

(
eSTATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN FRANCISCO 	COMMUNITY COLLEGE
FEDERATION OF TEACHERS, 	AFT 	2121,
Charging 	Party,
v.
SAN FRANCISCO 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
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) 	Case 	No. 	SF-CE-1146
PERB 	Decision 	No. 	703
October 	28, 	1988
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Appearances; 	Robert J. 	Bezemek and Katherine Riggs, 	Attorneys,
for 	the 	San Francisco 	Community College 	Federation 	of 	Teachers,
AFT 	2121; 	Ronald A. 	Glick 	for 	the 	San 	Francisco 	Community
College 	District.
Before Porter, 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before 	the 	the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by 	the 	San 	Francisco 	Community 	College 	District 	(District) 	to
the decision of 	the 	administrative 	law 	judge 	(ALJ).
San Francisco 	Community 	College 	Federation of 	Teachers, 	AFT
2121 	(Federation), 	exclusive 	representative of certificated
employees, 	alleged 	that 	the 	District, 	by Chancellor Hsu,
unilaterally 	adopted 	a policy barring 	classified 	personnel 	who
worked 	in 	the 	District 	from also serving, 	as 	they had 	in 	the
past, 	as part-time 	certificated employees 	in violation of
sections 3543.5(a), 	(b), 	and 	(c) of the Educational Employment

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Relations 	Act 	(EERA or A c t ) . 1 The ALJ 	found 	that 	the
District 	unlawfully 	eliminated 	the 	use 	of 	part-time
certificated 	staff 	who 	also held 	classified 	positions 	within
the 	District by 	refusing 	to 	first 	negotiate 	the 	change 	with 	the
Federation while 	it was 	still 	a proposal 	in violation of
section 3543.5(c) 	and, 	derivatively, 	(a) 	and 	(b) of the Act.
PROCEDURAL 	HISTORY
On July 21, 	1986, 	the United Public Employees, 	Local 790,
SEIU, 	AFL-CIO 	(SEIU), 	exclusive 	representative 	for classified
employees, 	filed 	a 	charge 	alleging unfair 	practices by 	the
District. 	On November 26, 	1986, 	the Federation 	filed a
separate 	charge 	alleging 	unfair 	practices 	by 	the 	District 	based
on 	the 	same 	set 	of operative 	facts, 	discussed below. 	Both
associations 	alleged 	that 	the 	District 	unilaterally adopted 	a
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 3540, 	et
seq., 	and 	is 	administered by PERB. 	Unless 	otherwise 	indicated,
all 	statutory 	references 	in 	this 	decision are 	to 	the 	Government
Code. 	Section 3543.5 	provides 	in relevant part:
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.
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policy barring 	classified personnel 	working 	in 	the 	District 	from
also 	serving 	as 	certificated 	employees. 	A consolidated hearing
was held on January 29, 	1987. 	Separate decisions were 	issued 	for
each 	case.2
FACTUAL 	SUMMARY
The 	District 	governing board had, 	for 	a 	number 	of years,
employed 	as 	part-time 	certificated 	employees 	individuals 	who 	also
were 	civil 	service 	employees 	of 	the 	City 	and 	County of
San 	Francisco holding 	full-time 	classified positions 	within 	the
District.
The 	subject 	of 	this 	dispute 	is 	a policy 	statement 	issued by
Chancellor Hsu on June 24, 	1986. 	The policy prohibited 	full-time
classified 	employees 	from 	part-time 	employment 	as 	certificated
employees. 	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 worked 	in 	certificated positions 	in 	Spring 	1986 	could
be 	given 	such 	assignments 	in Fall 	1986 	only, 	with 	none
thereafter; 	and 	(3) 	certificated assignments 	for 	classified
employees 	in 	Fall 	1986 	could not 	exceed 	the 	number 	of hours
assigned 	in Spring 	1986. 	Full 	implementation of 	the
2This 	decision 	is 	limited 	to Case No. 	SF-CE-1146 which
was 	filed by the 	Federation. 	The Board, 	in San 	Francisco
Community College District 	(1988) 	PERB Decision No. 	688,
dismissed 	the 	charge 	filed by 	SEIU and held 	that 	classified
employees 	are 	employed by 	the 	City and 	County of 	San 	Francisco,
thereby 	overruling 	San 	Francisco 	Community 	College 	District
(1986) 	PERB Order No. 	Ad-153 	to the extent 	that 	it 	found that
the 	District 	is 	the 	joint 	employer of 	classified employees.
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policy was 	delayed 	to 	Spring 	1987 because 	"staffing
difficulties" 	were 	anticipated.
The Chancellor, 	in 	unilaterally 	foreclosing 	the 	opportunity
for 	classified 	employees 	to work 	in 	the 	certificated positions,
sought 	to avoid 	the 	payment 	of 	overtime 	and/or 	a higher 	rate 	of
overtime 	pay 	for 	the 	classified 	employees 	under 	the 	Fair 	Labor
Standards 	Act 	(FLSA) 	which was 	implicated by this 	Board's 	now
overruled 	decision 	in 	San 	Francisco 	Community 	College 	District
(1986) 	PERB Order No. 	Ad-153. 	The Board's holding 	in the
latter 	San 	Francisco 	Community 	College 	District 	case, 	coupled
with 	the 	FLSA's 	dual-capacity 	salary 	and 	overtime 	pay
requirements, 	would have 	caused adverse 	overtime pay
consequences 	where 	full-time classified employees 	also 	worked
part-time 	in 	certificated positions.
ALJ'S 	FINDINGS 	AND 	CONCLUSIONS
The ALJ 	found 	that 	the 	unilateral 	decision 	to bar
classified 	staff 	from 	holding 	part-time 	certificated 	positions
without 	notice 	or 	negotiations, 	constituted a refusal 	to
negotiate 	in violation of 	EERA section 	3543.5(c) 	and,
derivatively, 	(a) and (b).
The 	District presented 	various 	defenses 	in 	support 	of 	its
position 	that 	no violation occurred, 	including 	the 	following:
(1) 	there was 	no obligation 	to bargain 	the 	change because 	the
subject 	of part-time 	certificated 	employment 	is 	not 	within 	the
scope 	of 	representation 	until 	the part-time 	employees 	are
actually hired; 	(2) 	managerial, 	statutory and contractual
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prerogatives 	constituted 	a 	waiver 	of 	the bargaining obligation,
if any; 	and 	(3) 	the 	District 	could 	restrict 	classified
employees 	from 	certificated 	positions.
The ALJ 	concluded 	that 	the 	policy 	restricting 	part-time
certificated 	teaching opportunities 	was 	negotiable, 	citing
Anaheim Union High 	School 	District 	(1981) 	PERB 	Decision
No. 	177; 	San Mateo City School 	District 	v. 	Public Employment
Relations Board 	(1983) 	33 Cal.3d. 	850.
With 	regard 	to 	the 	District's 	defense 	that 	it had 	no
obligation 	to bargain 	the 	change because 	the part-time 	status
of 	the 	affected 	employees 	meant 	they were 	not 	guaranteed 	a
teaching 	assignment 	and 	was 	an 	issue 	of 	future 	employment,
which was 	outside 	the 	scope of 	representation, 	the ALJ 	relied
upon 	The 	Regents 	of 	the 	University of 	California 	(1983) 	PERB
Decision No. 	359-H; 	Mt. 	San Antonio Community College District
(1983) 	PERB Decision No. 	297; 	Oakland Unified School 	District
(1983) 	PERB Decision No. 	367; 	and Holtville Unified School
District 	(1982) 	PERB Decision No. 	250.
The ALJ 	rejected 	the 	District's 	defense 	that managerial,
contractual, 	and 	statutory prerogative 	constituted 	a waiver 	of
its 	bargaining 	obligation.
The 	District 	filed 	the 	following 	exceptions 	to 	the ALJ's
proposed decision: 	(1) 	the 	District has 	the 	right 	to
unilaterally 	determine 	the 	assignments 	of 	civil 	service
employees 	working at 	the 	District pursuant 	to charter,
administrative ordinances, 	rules 	and regulations, 	and civil
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service provisions 	of 	the 	City and 	County of 	San 	Francisco; 	(2)
the 	proposed 	decision 	would 	result 	in 	an 	overtime 	obligation 	to
the 	District 	for both 	classified 	and 	certificated work; 	and 	(3)
the 	proposed 	decision would 	create 	a 	"classification" 	of
part-time 	certificated 	employees 	with 	unique 	job 	and 	tenure
rights.
DISCUSSION
The 	principal 	issue 	for 	resolution by 	the 	Board 	is 	whether
the 	Chancellor's 	unilateral 	decision, 	to preclude 	full-time
classified 	employees 	working 	within 	the 	District 	from 	also
working part-time 	in certificated positions, 	constitutes 	a
violation of EERA section 3543.5(c) 	and, 	derivatively, 	(a) 	and
(b).
The 	Board held 	in 	Oakland 	Unified 	School 	District 	(1983)
PERB Decision No. 	367, 	that 	it 	is unlawful 	for a public school
employer 	to 	refuse 	or 	fail 	to meet 	and 	negotiate 	in good 	faith
with 	an 	exclusive 	representative 	about 	a 	matter 	within 	the
scope 	of 	representation. 	Furthermore, 	a unilateral 	change 	in
terms 	and 	conditions 	of 	employment 	within 	the 	scope 	of
representation 	is 	a per 	se 	refusal 	to negotiate 	absent 	a valid
defense. 	(Pajaro 	Valley Unified 	School 	District 	(1978) 	PERB
Decision No. 	51; 	Fountain Valley Elementary School 	District
(1987) 	PERB Decision No. 	625.)
An 	unlawful 	unilateral 	change 	will 	be 	found 	when 	an
employer 	unilaterally 	alters 	an 	established policy. 	(Grant
Joint 	Union High 	School 	District 	(1982) 	PERB Decision No.
196.) 	The 	change 	in policy must have 	a generalized effect 	or
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continuing 	impact 	upon the 	terms 	and 	conditions 	of 	employment
of bargaining unit 	members before 	it 	constitutes 	a violation 	of
the 	duty 	to bargain. 	(Modesto 	City Schools 	and High 	School
District 	(1985) 	PERB Decision No. 	552.)
Finally, 	an 	employer's 	unlawful 	failure 	and 	refusal 	to
negotiate 	also 	violates 	an 	exclusive 	representative's 	right 	to
represent 	unit 	members 	in 	their 	employment 	relations 	and
interferes 	with 	employees 	because 	of 	their 	exercise 	of
representational 	rights. 	(San 	Francisco 	Community 	College
District 	(1979) 	PERB Decision No. 	105.)
The 	District 	contends 	that 	it has 	not 	violated 	section
3543.5(c) 	for 	failing 	to bargain over 	the 	change because 	the
Chancellor has 	the 	right, 	pursuant 	to charter, 	administrative
ordinances, 	rules 	and 	regulations 	and 	civil 	service provisions
of 	the 	City and 	County of 	San 	Francisco, 	to determine whether
civil 	service 	employees 	working 	at 	the 	District 	may 	also occupy
certificated 	positions.
In 	order 	to 	adjudge 	whether 	the 	Chancellor 	is 	authorized 	to
unilaterally 	prohibit 	outside 	work 	by 	civil 	service 	employees
working 	at 	the 	District, 	we must 	not 	only determine 	the 	extent
of 	the 	Chancellor's 	authority, 	but 	also whether he was 	acting
under 	the 	civil 	service 	provisions 	of 	the 	City and 	County 	of
San 	Francisco or 	for 	the 	governing board, 	as 	a public 	school
employer 	under 	EERA, 	when 	the policy was 	adopted.
The 	San 	Francisco 	Community 	College 	District 	is 	quite
unique 	in 	that 	it 	is 	composed 	of 	two 	separate 	and 	distinct
entities. 	One 	entity 	is 	a public 	school 	employer 	under 	EERA
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• 	• 	• 	• 	• 	• 	• 	•
section 	3540.l(k)3 with 	respect 	to the 	certificated
employees. 	The governing board4 with 	the 	Chancellor 	as 	its
chief 	executive 	officer 	deals 	with 	and 	controls 	the hiring,
discipline, 	wages, 	hours, 	and other terms and conditions of
employment as 	to the certificated employees, 	and 	is 	obligated
to 	negotiate 	with 	the 	certificated 	unit's 	exclusive
representative 	on matters 	within 	the 	scope 	of 	representation.
The 	other 	entity 	is 	not 	a public 	school 	employer 	under
EERA, 	with respect to the classified employees, 	but 	is a
separate 	"department" 	of 	the 	City and 	County of 	San Francisco.
The 	"appointing officer" 	and 	"department head" 	for 	the 	City and
County of 	San 	Francisco 	also happens 	to be 	the 	Chancellor.55
Control and regulation over the hiring, 	discipline, 	wages,
3EERA section 3540.l(k) 	states:
(k) 	"Public school 	employer" 	or 	"employer"
means 	the 	governing board 	of 	a 	school
district, 	a school district, 	a county board
of 	education, 	or a county superintendent of
schools.
4section 	5.104 	of 	the 	Charter 	of 	the 	City and 	County of
San 	Francisco 	provides 	that 	the 	community 	college 	district 	of
the 	city 	and 	county 	shall 	be 	under 	the 	management 	control 	of 	a
governing board 	composed 	of 	seven members 	elected 	at 	large.
(Dist. Exh. 1)
5section 	3.501 	of 	the 	Charter 	of 	the 	City and 	County of
San 	Francisco provides 	that 	the 	chief 	executive 	officer 	shall
have 	the powers 	and 	duties 	of 	the 	department head, 	except 	as
otherwise 	specifically provided, 	and 	shall 	act 	as 	the
appointing officer 	under 	the 	civil 	service 	provisions 	of 	this
Charter.
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hours, 	and 	other 	terms 	and conditions 	of 	employment of 	the 	city
and 	county 	civil 	service 	employees 	working 	in 	the 	"classified"
positions 	in 	the 	District 	"department" 	are 	governed by 	the 	City
and 	County of 	San Francisco's: 	Charter, 	Board of 	Supervisors,
Civil Service Commission, 	Civil Service Rules, 	Salary
Ordinance, 	etc.6 This 	city and 	county department 	is
administered 	and 	controlled 	at 	the 	San 	Francisco 	Community
College 	District by 	the 	Chancellor 	in his 	distinct 	role 	as 	a
department 	head 	and 	appointing 	officer 	for 	the 	City 	and 	County
of 	San Francisco. 	Civil 	service 	employees 	working at 	the
District 	are 	paid by 	and 	receive 	their 	pay warrants 	from 	the
City 	and 	County of 	San 	Francisco.
While 	civil 	service 	employees 	of 	the 	City and 	County of
San Francisco may be hired 	or 	assigned by 	the 	City 	and 	County
to work 	in 	the 	District 	(in what 	the 	Education 	Code 	and 	EERA
would 	identify as 	"classified" 	positions), 	they are not public
school 	employees, 	nor does 	the 	City and 	County of 	San 	Francisco
or 	its 	appointing officer 	(the 	Chancellor) 	become 	a public
school 	employer 	thereby. 	(San 	Francisco 	Community 	College
District 	(1988) 	PERB Decision No. 	688.)
6Civil 	service 	employees 	of 	the 	City 	and 	County of
San Francisco are 	"local 	employees" 	under 	the
Meyers-Milias-Brown Act 	(MMBA), 	and 	the City and County of
San Francisco must 	negotiate 	with 	their 	respective 	exclusive
representatives 	as 	to matters 	within 	the 	scope 	of
representation 	under 	the MMBA. 	Such 	negotiated 	agreements 	with
respect to additional employment, 	overtime, 	etc., 	would have 	to
be 	observed by 	the 	Chancellor 	in his 	capacity 	as 	department
head 	and 	appointing 	officer.
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Section 	29 	of 	the 	Civil 	Service 	Commission Rules 	for 	the
City 	and 	County of 	San Francisco provides 	that 	no 	civil 	service
employee holding a 	full-time position may engage 	in 	an
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additional 	part-time 	employment 	without 	the 	approval 	of 	the
respective 	appointing 	officer 	of his 	or 	her 	department 	and 	the
approval 	of 	the 	Civil 	Service 	Commission. 	No additional
employment 	may be 	approved which 	is 	not 	in 	the best 	interests
of 	the 	City and County of 	San Francisco 	in any respect. 	The
approvals must be 	reobtained every six months. 	Thus, 	in order
for 	civil 	service 	employees 	of 	the 	City 	and 	County of
San Francisco 	to 	engage 	in 	additional 	employment 	or 	to work
overtime, 	they must 	obtain 	the 	approval 	of 	their 	appointing
officer, 	who must act 	in accord with 	the 	Charter, 	Civil 	Service
Rules, 	and the 	Salary Ordinance.
Here, 	civil 	service 	employees working 	in 	"classified"
positions 	in 	the 	District had 	to obtain 	approval 	from 	the
department head or 	appointing officer 	(the 	Chancellor) 	in order
to 	engage 	in part-time 	employment 	as 	"certificated" 	teachers
for 	the 	District.
Natalie 	Berg, 	Director 	of 	Personnel 	Relations 	for 	the
District, 	gave 	uncontroverted 	testimony 	that 	the 	Chancellor
adopted 	the policy 	relative 	to 	the 	right 	of 	classified
employees 	to work 	overtime 	as 	certificated 	employees 	in his
capacity 	and 	under 	his 	authority 	as 	the 	appointing 	officer 	of
the 	classified 	employees 	for 	the 	City and 	County.
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City and 	County 	control 	over 	its 	civil 	service 	employees 	is
not 	a 	matter 	within 	the 	scope 	of 	representation 	or 	negotiable
between 	the public 	school 	employer 	and 	the 	certificated 	unit.7
Likewise, 	PERB 	is without 	jurisdiction to force or 	require
the 	City and County of 	San Francisco, 	or 	its 	department head
and 	appointing 	officer 	to 	negotiate 	with 	the 	certificated 	unit.
ORDER
For 	the 	foregoing 	reasons, 	the unfair practice 	charge 	in
Case No. 	SF-CE-1146 	is DISMISSED.
Member 	Porter 	joined 	in 	this 	Decision.
Member 	Craib's 	dissent begins 	on page 	12.
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7while 	agreeing 	that 	the 	Chancellor's 	policy decision 	to
restrict 	the 	overtime hours 	of 	classified 	employees 	is 	not
negotiable, 	our 	dissenting colleague 	contends 	that 	the
District, 	as a public 	school employer, 	owes 	a duty to bargain
the 	"effects" 	of 	its 	decision with 	the 	Federation. 	We
disagree. 	The 	Federation 	requested 	to bargain 	a 	non-negotiable
policy 	decision 	of 	the 	Chancellor 	acting 	within his 	capacity
and 	under 	his 	authority as 	the 	appointing power 	and 	department
head 	of 	the 	civil 	service 	classified 	employees 	of 	the 	City and
County of 	San 	Francisco. 	It was 	not 	a policy decision of 	the
public 	school 	employer 	as 	to one 	of 	its 	public 	school 	employee
units 	(classified) 	having bargainable 	effects 	on 	its 	other
public 	school 	employee 	unit 	(certificated). 	(San Francisco
Community College District 	(1987) 	PERB Decision No. 	688; 	cf.
Lake 	Elsinore 	School 	District 	(1987) 	PERB 	Decision No. 	646.)
Assuming, 	arguendo, 	that 	the 	Chancellor had made the
non-negotiable 	policy 	decision 	on behalf 	of 	the 	public 	school
employer, 	there was 	no demand by the 	certificated 	unit 	to
bargain 	the 	effects 	of 	the decision, 	nor 	was 	there 	a 	refusal by
the 	public 	school 	employer 	to bargain 	the 	effects.
(Newman-Crows 	Landing Unified 	School 	District 	(1982) 	PERB
Decision No. 223, pp. 8-11.)

Member Craib, 	dissenting: 	Although 	I 	agree 	that 	our
decision 	in 	San 	Francisco 	Community 	College 	District 	(1988)
PERB Decision No. 	688 grants 	the District, 	as a department of
the 	City and County of San Francisco, 	the 	right 	to refuse 	to
allow 	its 	civil 	service 	(classified) 	employees 	to work
part-time 	as 	District 	certificated employees, 	I 	cannot agree
that 	the District, 	as 	a public 	school 	employer, 	does not owe 	a
duty 	to bargain 	the 	effects 	of 	its 	decision on 	the 	certificated
unit 	with 	the 	Federation.
The majority 	concludes 	that 	"PERB 	is 	without 	jurisdiction
to 	force 	or 	require 	the 	City and 	County of 	San 	Francisco, 	or
its 	department 	head 	and 	appointing 	authority 	to negotiate 	with
certificated unit." 	(Majority 	Decision at p. 	11.) 	PERB 	is 	not
without 	jurisdiction 	to 	require 	the 	District, 	as 	a public
school 	employer, 	subject 	to the EERA, 	to negotiate with 	the
certificated unit. 	Although 	it 	recognizes 	the 	"unique" 	nature
of 	the 	San 	Francisco 	Community College 	District, 	the majority
conveniently 	focuses 	solely on 	the 	District's 	capacity as 	a
department 	of 	the 	City and 	County of 	San 	Francisco, 	thus,
skirting 	the 	more 	complex 	issue 	of 	the 	relationship between 	the
District's 	capacity as 	a public 	school 	employer 	and 	its
capacity 	as 	a 	department 	of 	the 	City 	and 	County 	(nonpublic
school employer). 	Even the Chancellor, 	in the June 24, 	1986
memorandum 	adopting 	the policy, 	recognized 	the 	District's 	dual
roles. 	The policy was 	specifically adopted 	to 	clarify 	the
confusion 	regarding 	the 	application 	of 	the 	Fair 	Labor 	Standards
12

Act 	"to 	certain of 	[the 	District's] 	certificated 	employees"
(emphasis 	added). 	The memorandum 	from the Chancellor
specifically 	restricted 	both 	classified 	and 	certificated
employees.1 The 	nonpublic 	school 	employer's 	decision 	was
intended 	to 	reduce 	the 	amount 	of 	overtime 	the 	City and 	County
was 	obligated 	to pay under 	FLSA 	regulations; 	the public 	school
employer's 	decision 	was 	to 	restrict 	those 	certificated 	unit
members, 	who also worked 	full-time 	as 	classified 	employees,
from 	any 	future 	certificated positions 	with 	the 	District. 	If
the 	unique 	dual 	capacity 	situation did 	not 	exist, 	the
Chancellor 	could 	not, 	as 	a nonpublic 	school 	employer
representative, 	restrict 	the employees of the District, 	a
1 The 	specific 	language 	used by 	the 	Chancellor 	is 	as
follows:
1. 	Classified personnel 	who did 	not have
certificated 	assignments 	in 	Spring 	1986
shall 	not be 	granted 	any 	such 	assignments 	in
the 	future.
2. 	Classified personnel 	who had
certificated 	assignments 	in 	Spring 	1986 	may
be 	granted 	such 	assignments 	for 	the 	1986
Fall 	semester 	only. 	(These persons 	should
be 	informed 	that 	they 	cannot 	receive
certificated 	assignments 	after 	the 	1986 	Fall
Semester.)
3. 	Certificated 	assignments 	granted
classified personnel 	in Fall 	1986, 	may not
exceed 	the 	number 	of hours 	of 	the
assignments held 	in Spring 1986; 	i.e., 	no
additional 	hours 	are 	to be 	granted 	these
individuals 	in Fall 	1986.
(Emphasis 	in original.)
13

public 	school 	employer. 	Therefore, 	even 	though 	the 	Chancellor,
in his 	capacity as 	appointing 	authority 	for 	a department 	of 	the
City 	and 	County of 	San 	Francisco, 	had 	the 	authority 	to 	restrict
the 	overtime hours 	of 	classified 	employees, 	he 	also 	retained
statutory 	and 	contractual 	obligations 	to 	negotiate 	with 	the
certificated 	unit 	over 	the 	effects 	of 	the 	change 	in past
practice.
The 	Board has 	consistently held 	that, 	even where 	a 	decision
is 	solely within management's prerogative, 	where a decision
impacts on wages, 	hours, 	and working conditions, 	an employer
must 	give 	notice 	and 	an opportunity 	to bargain over 	the 	effects
of 	that decision. 	(Mt. 	Diablo Unified 	School 	District 	(1983)
PERB Decision No. 	373 	(layoffs); 	Alum Rock Union Elementary
School 	District 	(1983) 	PERB Decision No. 	322 	(establishment 	or
abolition of 	classifications).) 	Recently, 	the 	Board held 	that
an 	employer 	who makes 	a decision 	regarding 	one 	unit 	of
employees 	which 	impacts 	on another 	unit, 	may be 	required 	to
negotiate 	the 	effects 	of 	that 	decision with 	the 	affected 	unit.
(Lake 	Elsinore 	School 	District 	(1987) 	PERB 	Decision No. 	646.)
One 	issue 	decided by 	the 	Board 	in Lake 	Elsinore was 	whether 	the
District 	should have 	given 	the 	certificated 	unit 	notice 	and 	an
opportunity 	to bargain over 	the 	effects 	of 	a 	reduction 	in hours
of 	classified 	employees' 	classroom 	time. 	The Board held 	that
the 	District 	was 	not 	obligated 	to negotiate 	the 	effects 	because
the 	state-mandated program was 	for 	the benefit 	of 	students, 	not
teachers, 	and because 	the potential 	effects 	on 	the 	certificated
14

unit were 	speculative, 	at best. 	(Ibi
----d at p. 	16.) 	Implicit 	in
this 	decision 	is a 	recognition that, 	in appropriate
circumstances, 	a district may be 	required 	to negotiate 	the
effects 	of 	such 	a 	decision. 	Today we 	are 	presented 	with 	that
situation.
Even 	though 	there 	was 	testimony 	indicating 	that 	part-time
certificated employees, 	prior 	to the 	District's 	new policy, 	did
not 	acquire 	tenure, 	permanency, 	or 	any guarantee of 	continued
employment, 	nor did 	they accrue any seniority rights, 	there 	is
an 	insufficient 	record 	to determine 	that 	there 	were 	not 	crucial
impact 	issues 	which 	could have been bargained over. 	Since 	this
new 	policy 	significantly 	impacted 	upon 	the 	wages 	of 	part-time
certificated 	employees, 	the parties 	could have bargained 	over
proposals 	to ameliorate 	that 	impact. 	For 	instance, 	the parties
could have 	negotiated 	a hiring 	list 	for 	new 	full-time
certificated 	positions 	which 	gives 	preference 	to 	those
part-time 	certificated 	employees 	who were 	ineligible 	for 	future
part-time 	employment.
Once 	it 	is 	determined 	that 	a duty 	to negotiate 	over 	the
effects 	of a decision arose, 	we must decide when 	it 	arose and
whether 	sufficient 	time 	was 	available 	prior 	to 	implementation
to bargain 	in good 	faith. 	The 	District 	received notice of 	the
Department 	of Labor's 	new regulations 	in April 	of 	1986. 	At
that 	time, 	the 	District 	realized that 	changes 	in 	its policies
may be 	necessary 	for 	financial 	reasons. 	The 	new policy was
drafted 	in June 	1986; 	however, 	the 	full 	implementation date was
not 	until 	the 	1987 	Spring semester. 	Although 	this 	is 	not a
15

situation 	in which 	the 	implementation 	date 	was 	mandated by 	some
outside 	constraint 	such 	as 	that presented 	in Mt. 	Diablo Unified
School 	District, 	supra, 	PERB Decision No. 	373 	(final notice of
layoff 	must be 	given by May 	15 	or 	employees 	are 	automatically
reemployed pursuant 	to Education 	Code 	sections 	44949 	and
44955), 	it 	is analogous to that of layoffs, 	where a delay in
implementation 	of 	an 	important 	managerial 	decision would
effectively undermine 	the 	employer's 	right 	to make 	the
nonnegotiable decision. 	(See, 	e.g., 	Oakland Unified School
District 	(1985) 	PERB Decision No. 	540.)
Notice 	of 	the 	decision 	and 	the 	proposed 	implementation 	date
was 	given 	in 	the June 	24, 	1986 memorandum adopting 	the new
policy. 	The 	Federation 	received 	such 	notice 	and 	requested 	to
bargain 	over 	the proposal. 	The 	District 	refused 	to negotiate,
stating 	that 	the 	District 	had 	not 	"imposed 	a 	change 	on 	any
employee 	'employed 	in a certificated 	staff' 	position." 	The
District 	took 	the 	untenable 	position 	that 	part-time
certificated 	staff 	could 	not 	be 	represented 	by 	the 	Federation
until 	they had 	received 	a 	certificated 	staff 	appointment, 	a
determination within 	the 	sole 	discretion 	of 	the 	District.
Thus, 	despite 	the 	request 	to bargain by the 	Federation, 	the
District 	refused 	to 	enter 	into 	good 	faith 	effects 	bargaining 	as
required by section 3543.5(c), 	supra.2
2The 	majority argues 	that 	even 	if 	the 	Chancellor's
decision was 	made 	on behalf of 	the public 	school 	employer, 	the
District 	had 	no 	duty 	to bargain with 	the 	certificated 	unit
because 	the 	Federation never 	demanded 	to bargain 	the 	effects 	of
16

Therefore, 	I would find 	that, 	despite 	the District's
ability 	to unilaterally make 	the 	decision 	to 	restrict 	the
overtime hours 	of 	classified 	employees, 	it had 	an obligation
under 	the 	EERA to 	negotiate 	in 	good 	faith 	over 	the 	effects 	of
that 	decision 	with 	the 	certificated 	unit.
the decision. 	(Majority decision at p. 	11, 	fn. 	7.) 	This
argument 	is 	specious. 	First of all, 	at 	the 	time 	the Federation
requested negotiations, 	the District, 	as both an employer of
classified 	and 	certificated 	employees, 	was 	a public 	school
employer 	according 	to 	a 	PERB decision. 	(San 	Francisco
Community 	College 	District 	(1986) 	PERB Order No. 	Ad-153.) 	To
now 	require 	the 	Federation 	to have 	anticipated 	the 	change 	in
the 	District's 	status, 	resulting 	from 	the 	Board's 	decision 	in
San Francisco Community College 	District, 	supra, 	PERB Decision
No. 	688, 	is both 	improper and unfair under 	these
circumstances. 	The 	Federation properly 	requested 	to bargain
the 	decision. 	Furthermore, 	the 	District's 	own memorandum
instituting 	the 	change 	in policy 	specifically 	indicated 	that 	it
was 	clarifying 	the 	status 	of 	certain 	certificated 	employees.
(See, 	supra, 	discussion at pp. 	12-13.1 	As 	I indicated, 	the
District 	did not 	reject 	the 	request 	to negotiate because 	of 	the
District's 	status 	as 	a nonpublic 	school 	employer, 	but 	rather
because 	it believed 	that without 	a 	current 	appointment, 	the
part-time 	certificated 	employees 	were 	not 	entitled 	to
representation by 	the 	Federation.
Secondly, 	the majority's 	reading of 	Newman-Crows 	Landing
Unified 	School 	District 	(1982) 	PERB 	Decision No. 	223 	is 	overly
expansive. 	The 	Board 	in Newman-Crows 	Landing 	specifically
indicated 	that 	"it 	is 	not 	essential 	that 	a 	request 	to negotiate
be 	specific 	or made 	in a particular 	form," 	only 	that 	the party
"have 	signified 	its 	desire 	to negotiate 	to 	the 	employer by 	some
means." 	(Ibid at pp. 	7-8, 	citations 	omitted.) 	Although the
Board 	did hold 	that 	the 	employee 	organization 	failed 	to
indicate 	that 	it wished 	to negotiate 	the 	effects 	of 	the
employer's 	decision 	to lay off 	certain employees, 	the 	facts 	of
that 	case 	are 	sufficiently 	unusual 	to 	restrict 	any broad
implications 	which 	might be 	inferred. 	The 	Board 	emphasized
that 	the 	employee 	organization was 	solely 	interested 	in
negotiating 	the 	decision.
Therefore, 	I would hold 	that 	the 	Federation properly
requested 	that 	the 	District negotiate, 	and 	that 	the 	District
violated 	its 	duty 	to negotiate 	in 	good 	faith 	over 	the 	effects
of 	its 	decision.
17