San Francisco Community College District (PERB 0703EA)

STATE 	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
Request 	for 	Reconsideration
PERB Decision No. 	703
PERB 	Decision No. 	703a
February 	16, 	1989
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Appearances: 	Robert J. 	Bezemek, 	Attorney, 	for the San Francisco
Community College Federation of Teachers, 	AFT 2121.
Before Porter, 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	San Francisco Community College 	Federation
of Teachers, 	AFT 2121, 	(Charging Party) 	exclusive representative
of 	certificated employees, 	requests 	reconsideration of 	PERB
Decision No. 	703, 	issued October 28, 	1988. 	In that decision, 	the
Public 	Employment 	Relations 	Board 	(PERB or 	Board) 	dismissed
charges 	that 	the 	San Francisco 	Community College 	District
(District) 	made 	an unlawful 	unilateral 	policy decision
eliminating 	the 	use 	of 	part-time 	certificated 	staff who 	also 	held
classified positions 	within 	the 	District. 	The 	Board dismissed 	on
the ground that it was not the District, 	but rather, 	the
Chancellor, 	acting 	in his 	capacity as 	a department head of 	the
City and County 	of 	San Francisco, 	who made 	the 	policy decision,
and 	that 	city 	and 	county 	control 	over 	its 	civil 	service 	employees

is 	not 	a matter within the 	scope 	of 	representation or negotiable
between 	the 	District 	and 	the 	District's 	certified employee 	unit.
DISCUSSION
PERB Regulation 32410(a)1 states, 	in pertinent part:
Any party to 	a 	decision of 	the 	Board 	itself
may, 	because of extraordinary circumstances,
file 	a request to reconsider the decision
. 	. 	. 	The grounds for requesting
reconsideration 	are 	limited 	to 	claims 	that
the 	decision 	of 	the 	Board 	itself 	contains
prejudicial errors of fact, 	or newly
discovered 	evidence 	or 	law which was 	not
previously 	available 	and 	could not have 	been
discovered with 	the 	exercise 	of 	reasonable
diligence.
In 	its 	request 	for reconsideration, 	Charging Party asserts
that 	the 	Board's 	decision 	contains 	prejudicial 	errors 	of 	law and
fact. 	The 	Board rejects 	such 	contentions 	for the 	following
reasons:
Charging 	Party 	claims 	that 	the 	Board 	erroneously 	ruled 	that
San Francisco Civil 	Service 	Commission Rule 	29 made 	the 	decision
nonnegotiable. 	Not 	so. 	The 	Board found that the 	San Francisco
Community College 	District 	is 	composed of 	two 	separate 	and
distinct entities. 	One 	entity is 	a public 	school 	employer under
EERA 	section 	3540.1(k)2 with respect to the 	certificated
1PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 et seq.
2EERA section 3540.l(k) 	states:
"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.
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employees, 	and it 	is 	the 	governing board with the Chancellor 	as
its 	executive 	officer. 	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 with 	the 	Chancellor 	operating 	in 	a 	separate
capacity 	as 	a 	department head 	and 	appointing power 	for 	the 	city
and 	county. 	Control 	and regulation over the hiring, 	discipline,
wages, 	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, 	Salary Ordinance, 	and Civil 	Service
Rules 	including Commission Rule 	29. 	Civil 	service 	employees 	of
the 	City and County of 	San Francisco 	are 	"local 	employees" 	under
the Meyers-Milias-Brown Act 	(MMBA), 	(Government Code 	section 3500
et 	seq.) 	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, 	and other terms 	and conditions of employment, 	would
have 	to be 	observed by the 	Chancellor 	in his 	capacity as
department 	head 	and 	appointing 	officer 	for 	the 	city 	and 	county 	as
to 	the 	civil 	service 	classified employees. 	The 	Board's
consideration of 	Civil 	Service 	Commission Rule 	29 was 	incidental
to 	its 	finding that 	city and 	county 	control 	over 	its 	civil
service 	employees 	is 	not a matter within the 	scope 	of
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representation 	or 	negotiable 	between 	the 	District 	(governing
board) 	and 	the 	certificated unit under 	EERA.
The 	Charging Party 	also makes 	the 	flat 	assertion 	that 	the
Board has 	not 	cited 	any National 	Labor 	Relations 	Board 	(NLRB)
precedent 	and 	therefore 	has 	failed 	to recognize 	the 	correct
method of 	legal 	analysis. 	PERB is 	not bound to base 	its
decisions 	on NLRB or 	federal 	court 	cases 	interpreting 	the
National Labor Relations Act 	(NLRA), 	although, 	when appropriate,
it 	may 	take 	cognizance 	of 	federal 	precedent 	interpreting 	NLRA
provisions 	which are parallel 	to 	EERA provisions. 	Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89, 	p. 	6.
Finally, 	Charging Party 	asserts 	that the 	Board made 	factual
errors 	in footnote 	7 of the Decision, 	where it found,
incidentally, 	that 	there was 	no request by 	the 	certificated unit
to bargain the 	"effects" 	of the decision, 	citing Newman-Crows
Landing Unified School 	District 	(1982) 	PERB Decision No. 	223.
The basic 	thrust of 	footnote 	7 	is 	that a public 	school 	employer
is 	not under a duty to negotiate 	the 	effects of 	a nonnegotiable
decision made 	by another 	employer 	(here, 	the 	City and County of
San Francisco). 	Secondarily, 	we observed that, 	even if the
nonnegotiable 	decision had been made 	by 	the 	public 	school
employer, 	the 	certificated employees 	must 	also demand to bargain
"effects" 	before 	the public 	school 	employer's 	duty to negotiate
arises. 	We 	did not 	find the 	demand to negotiate 	the policy
decision an 	"effects" 	demand 	(See 	Newman-Crow's 	Landing Unified
School District 	(1982) 	PERB Decision No. 	223).
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ORDER
Having 	found no merit in Charging Party's 	contentions, 	the
request 	for 	reconsideration 	is 	denied.
Member 	Porter 	joined in this 	Decision.
Member Craib's 	dissent begins 	on page 	6.
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Member Craib, 	concurring and dissenting: 	To the 	extent 	that
the 	request 	for reconsideration 	is 	based upon the 	Board's
purported reliance 	on the 	effect 	of 	San Francisco Civil 	Service
Commission Rule 	29, 	I 	agree that the request 	should be denied.
The majority's 	analysis 	in Decision No. 	703 was not dependent on
its view of the operation of 	Rule 	29. 	Consequently, 	Charging
Party's 	arguments 	concerning Rule 	29 	are misplaced.
However, 	Charging Party has 	also addressed the majority's
failure 	to 	acknowledge 	the 	obvious 	implications 	of 	the 	Board's
earlier holding that the 	District 	consists 	of 	two distinct
entities, 	one 	a public 	school 	employer 	(with respect 	to 	its
certificated employees) 	and the 	other a department 	of 	the 	City
and County 	of 	San Francisco 	(with respect 	to 	its 	classified
employees). 	Charging Party argues, 	quite accurately, 	that a
decision by 	one 	employer to prohibit 	its 	employees 	from 	also
working 	for 	another 	employer would not 	give 	the 	other 	employer
the 	right 	to 	effectuate 	that 	decision by unilaterally 	taking
action 	against 	its 	employees which would otherwise 	be 	negotiable.
As 	I 	explained in my dissent in Decision No. 	703, 	given the
District's 	unique dual 	status, 	I would 	find that only the 	effects
of the District's decision are negotiable, 	analogizing to the
situation where 	a decision with regard to 	one 	unit has
bargainable 	effects 	upon another unit. 	(Lake 	Elsinore 	School
District 	(1987) 	PERB Decision No. 	646.) 	Frankly, 	my position is
a rather 	charitable 	one with regard to 	the 	District, 	for 	a 	strict
application of 	the 	Board's 	holding that 	the 	District 	consists 	of
two 	separate 	and distinct 	employers 	would 	compel 	the 	conclusion
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that the decision was negotiable as well. 	In any event, 	Charging
Party has 	noted 	the majority's 	error 	of 	law in 	finding no
bargaining obligation whatsoever; 	consequently, 	I would grant the
request 	for reconsideration on that basis.
Charging 	Party 	also 	asserts 	that 	the 	majority 	committed
errors 	of 	fact 	and law in its 	alternative holding that, 	even if
there was 	a 	bargaining obligation, 	Charging Party waived 	its
rights 	by 	failing to make 	a request to bargain effects. 	As 	I
pointed out in my dissent in Decision No. 	703, 	the majority's
view is 	based upon a misapplication of 	the 	Board's 	decision 	in
Newman-Crows 	Landing Unified 	School 	District 	(1982) 	PERB 	Decision
No. 	223 	and upon a failure to recognize that, 	at the time
Charging Party made 	its 	demand to bargain, 	existing precedent
made 	the decision bargainable. 	In my earlier dissent, 	I
characterized the majority's 	argument on this 	issue 	as 	specious.
Upon 	further examination, 	I 	consider that 	characterization to
have 	been an understatement. 	I 	would therefore 	grant 	the 	request
for reconsideration on this 	issue 	as well.
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