Butte Community College District (PERB 0498E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	BUTTE
COLLEGE 	CHAPTER 	#511,
Charging 	Party,
v.
BUTTE 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
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) 	Case No. 	S-CE-792
PERB Decision 	No.498
March 14, 	1985
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Appearances; 	William C. 	Heath, 	Attorney for California 	School
Employees Association; 	Brown and Conradi, 	by Nancy B.
Ozsogomonyan, 	for 	Butte Community College 	District.
Before Hesse, Chairperson; 	Jaeger, 	Morgenstern and Burt,
Members.
DECISION
This 	case 	is 	before 	the Public Employment Relations 	Board
on 	an 	appeal 	by 	charging party of 	the 	Board agent's 	dismissal,
attached hereto, 	of 	that portion of 	its 	charge alleging 	that
the 	Butte 	Community College 	District 	violated 	section 	3540 	of
the Educational Employment Relations Act 	(EERA) 	(Gov. 	Code sec,
3540 	et 	seq.)
We have 	reviewed 	the 	partial 	dismissal 	and adopt 	it 	as 	the
Decision 	of 	the 	Board 	itself.l	1
1We 	do 	not 	adopt 	the 	Board 	agent's 	statement 	that 	we 	have
no 	jurisdiction 	to 	interpret 	the 	Education Code. 	Such 	an
interpretation 	may be 	made where 	necessary 	to rule 	on 	an
allegation 	that 	a 	party violated 	EERA. 	The 	statement 	by 	the
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)
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agent in this 	case, 	however, 	is not critical to his decision
and is, 	therefore, not prejudicial.
ORDER
The unfair 	practice 	charge 	in Case No. 	S-CE-792 	is
DISMISSED 	WITHOUT 	LEAVE 	TO AMEND.
By the 	BOARD

•	STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HEADQUARTERS OFFICE
1031 18TH STREET
SACRAMENTO, CALIFORNIA 	95814
(916) 322-3088
January 3, 	1985
Mr. 	Brian Caldeira
Field Director, CSEA
5301 Madison Avenue, Suite 10 2
Sacramento, 	CA 	95841
RE: 	California School Employees Association, 	Chapter 	#511 v.
Butte Community College District, 	Case No. 	S-CE-79 2
Dear Mr. Caldeira:
The 	above-referenced 	charge 	alleges 	that 	Respondent
unilaterally 	transferred work 	out of 	the 	bargaining 	unit 	by
hiring 	students 	into vacancies 	that 	have 	been 	left 	by
attrition, 	and 	has 	failed and 	refused 	to 	negotiate 	with CSEA
concerning 	the decision to do 	so and 	its effects 	upon 	the
bargaining 	unit. 	An 	unfair 	practice complaint 	is 	being 	issued
along with 	this 	letter 	to 	that effect.
The 	unfair 	practice charge 	also alleges 	that 	the 	Respondent 	has
violated 	Educational 	Employment 	Relations Act 	section 	3540 	by
implementing 	a provision contained 	in 	the contract between 	the
parties 	in 	such a manner 	that 	"employees have 	less 	than 	the
minimum rights contained in the Education Code 	. 	. 	. 	."
In a telephone conversation on January 	2, 	1985, 	I 	informed
Mr. 	Caldeira, 	CSEA's representative that this office was 	ready
to 	issue 	a 	complaint 	as described 	above 	and a warning 	letter 	as
to the allegation concerning section 3540. 	Mr. 	Caldeira
requested 	that, 	instead of a warning 	letter 	being 	issued with
time to respond, 	that a dismissal be 	issued 	in order 	that CSEA
may appeal 	the dismissal directly to 	the PERB Board.
Mr. 	Caldeira and 	I 	have discussed 	the charge 	at 	length 	and 	I
have conveyed 	to 	him over 	the 	telephone 	the 	theories 	for
dismissal which are 	set 	forth 	in the attached 	letter.
For 	the 	reasons 	set 	forth 	in my letter dated December 31, 	1984,
to Mr. Caldeira, 	attached hereto 	as Exhibit No. 	I, 	the
above-referenced 	charge 	is 	dismissed.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulation
section 	32635 	(California Administrative Code, 	title 	8,

Mr. Brian Caldeira
January 3, 	1985
Page 	2
part III), 	you may appeal the refusal to 	issue a complaint
(dismissal) 	to the Board itself.
Right 	to Appeal
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
(section 32635(a)). 	To be timely filed, 	the original and five
(5) 	copies of 	such appeal must be actually received 	by the
Board 	itself 	before the close of business 	(5:00 	p.m.) 	on
January 	23, 	1985, 	or 	sent by telegraph or certified United
States mail postmarked not 	later 	than January 	23, 	1985 	(section
32135). 	The Board's address is:
Public 	Employment Relations 	Board
1031 	18th Street
Sacramento, CA 95814
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 	(5) 	copies of a statement 	in opposition within twenty
(20) 	calendar days following 	the date of service of 	the appeal
(section 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 the document 	filed with 	the Board
itself 	(see 	section 3 2140 	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.
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 	(section 32132) .

Mr. 	Brian Caldeira
January 3, 	1985
Page 3
Final Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final 	when 	the 	time 	limits 	have 	expired •
Very 	truly yours,
DENNIS M. 	SULLIVAN
General Counsel
By
Jorge 	Leon
Staff Attorney
-
Attachment: 	Exhibit 	I
By -
v

STATE Of CALIFORNIA 	- 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HEADQUARTERS OFFICE
1031 18TH STREET
SACRAMENTO. CALIFORNIA 95814
(916) 322-3088
December 31, 	1984
Mr. 	Brian Caldeira
Field 	Director, 	CSEA
5301 	Madison Ave., 	Suite 	102
Sacramento. 	CA 	95841
Re: 	CSEA. 	Chapter 	#511 	v. 	Butte 	Community College 	District.
S-CE-792
Dear Mr. 	Caldeira:
You 	have 	filed 	a 	charge 	on 	behalf 	of 	CSEA Chapter 	511 	alleging
that 	Respondent 	Butte 	Community 	College 	District 	(District) 	has
engaged 	in 	conduct 	which 	violates 	Educational 	Employment
Relations Act (EERA) 	sections 3543.5(a). 	(b). 	and 	(c).
Specifically, 	you 	allege 	that 	the 	District 	has 	unilaterally
transferred 	work 	out 	of 	the 	bargaining 	unit 	by 	hiring 	students
into 	unit 	vacancies 	that 	have 	been 	left 	by 	attrition, 	and 	has
failed 	and 	refused 	to 	negotiate 	concerning 	the 	decision 	to 	do
so 	and 	its 	effects 	upon 	the 	bargaining 	unit. 	An 	unfair
practice 	complaint 	will 	issue 	regarding 	this 	allegation. 	You
have 	also 	alleged 	that 	the 	District 	has 	violated 	EERA 	section
3540 	by 	implementing 	a 	provision 	contained 	in 	the 	contract
between 	the 	parties 	in 	such 	a 	manner 	that 	"employees 	have 	less
than 	the 	minimum 	rights 	contained 	in 	the 	Education 	Code. 	. . . "
My 	investigation 	has 	revealed 	the 	following 	facts. 	The 	parties
herein 	are 	parties 	to 	a 	collective 	bargaining 	agreement 	which
will 	expire 	on 	September 	30. 	1986. 	The 	agreement 	contains 	the
following 	language 	in Article 	18. 	section 18.5.1:
A unit 	member 	who 	has 	been 	laid 	off 	has
reemployment 	rights 	(preference 	to 	new
applicants) 	for 	thirty-nine 	(39) 	months 	into
the 	class 	from which 	he/she 	was 	laid 	off 	or
equal 	or 	lower 	classes 	in which 	the 	unit
member 	has 	served. 	If 	more 	than one 	of 	such
positions 	is 	available, 	reemployment will 	be
into 	the 	highest 	available 	class.
Reemployment 	shall 	be 	in 	the 	reverse 	order
EXHIBIT I
e•.

of 	layoff. 	Unit 	members who 	accept a
position 	in a 	lower 	class 	than 	that 	from
which 	they were 	laid 	off 	retain 	reemployment
rights 	in accordance with section 	18.6.
(Emphasis 	supplied.)
Mr. 	Brian Caldeira
December 31, 	1984
Page 2
In November. 	1983. 	it 	became necessary for 	the District 	to
effect 	layoffs. 	Those employees 	affected were as 	follows:
1. 	Joan Fredericks 	Food 	Lab 	Technician
2. 	Lynn Facchini 	Instructional 	Aide 	- 	Ceramics
3. 	Raul Hernandez 	Audio-Visual/Instructional/Media
Assistant
4. 	Lyle Robinson 	Media 	Production 	Assistant
5. 	Carlton Holcomb 	PE 	Equipment Manager
6. 	Beverly McMillan 	Instructional 	Aide 	Office
Administration
7. 	Kathleen Roepke 	Secretary 	I
8. 	Reggie Kaster 	Secretary 	I
As 	vacancies 	in any unit 	position came 	open within 	the
District, 	the District 	issued 	an 	open announcement 	for 	that
position unless 	that 	vacancy was 	one 	for 	which any of 	the
above-named 	individuals 	qualified 	pursuant 	to 	contract
section 18.5.1. 	In that event, 	the District 	has 	telephoned
that 	person and 	made 	an offer 	of 	reemployment. 	Between 	the
time of the 	layoffs 	in November, 	1983. 	to the present, 	at 	least
twelve 	positions 	have 	become vacant.
CSEA disputes 	the District's 	interpretation 	of 	the 	contract
because 	the District 	imposes 	a 	requirement 	that 	the 	laid 	off
employee 	have 	served 	in 	the 	class 	before 	he/she 	is 	given 	the
position as a matter of 	right. 	For example, 	a vacancy 	in a
Secretary I 	position would 	not 	be offered 	by the District 	to a
laid 	off 	Instructional 	Aide-Ceramics 	unless 	that 	person 	had
served as a Secretary I 	in the past. 	Instead, 	in such an
instance, 	the District 	has 	advertised 	the 	open position 	to 	the

general 	public. 	CSEA would 	interpret 	the 	contract 	so 	that 	any
vacancies 	are 	filled 	from 	the 	layoff 	list 	before 	any 	outsiders
are 	hired.
Mr. Brian 	Caldeira
December 31, 	1984
Page 3
To 	support 	its 	position. 	CSEA cites 	Education Code 	section
88117, 	which provides 	in pertinent part:
Persons 	lid off 	because 	of 	lack of work or
lack 	of 	funds 	are 	eligible 	to 	reemployment
for 	a 	period of 	39 	months 	and 	shall 	be
reemployed 	in preference 	to 	new applicants.
(Emphasis 	supplied.)
This 	section 	of 	the Education Code 	does 	not 	contain 	the 	same
restrictive 	language 	that 	the 	contract 	provides, 	limiting
preferential 	reemployment 	eligibility 	to 	positions 	in which a
laid 	off 	employee 	has 	served. 	CSEA's 	argument 	is 	that 	the
District's 	literal 	interpretation of 	the 	contract 	language
results 	in employees 	receiving 	rights 	of 	reemployment 	less 	than
they would 	be 	entitled 	to 	under 	the Education Code.
The District, 	on the other 	hand, 	argues 	that 	the Education Code
provision 	is 	also 	limited 	to 	preferential 	hiring within a
class. 	As 	support, 	it cites Education Code 	section 88127,
regarding order 	of 	reemployment, 	which provides, 	in pertinent
part:
Whenever 	a 	classified 	employee 	is 	laid 	off,
the 	order 	of 	layoff 	within 	the 	class 	shall
be 	determined 	by 	length of 	service. 	The
employee who 	has 	been employed 	the 	shortest
time 	in the class, 	plus 	higher 	classes,
shall 	be 	laid 	off 	first. 	Reemployment 	shall
be 	in the 	reverse 	order 	of 	layoff.
(Emphasis 	supplied 	.)
According 	to 	the District, 	the contract 	embodies 	the Education
Code.
Analysis
The PERB's 	authority 	is 	limited 	to 	interpretation and
enforcement 	of 	specific 	portions 	of 	the Government Code, 	and 	it
has 	no 	jurisdiction to 	interpret 	the Education Code.
Government Code 	section 3541.5(b) 	provides 	as 	follows:
The 	board 	shall 	not 	have 	authority 	to
enforce 	agreements 	between 	the 	parties 	and
shall 	not 	issue 	a 	complaint 	on any 	charge

based 	on alleged 	violation of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
Mr. Brian 	Caldeira
December 31, 	1984
Page 4
PERB 	has 	interpreted 	this 	provision 	to 	mean 	that 	PERB 	can
interpret 	the 	terras 	of 	a 	collective 	agreement 	when 	the 	conduct
alleged would 	also 	constitute 	an unfair 	practice. 	Grant 	Joint
Union High School District 	(2/26/82). 	PERB Decision No. 	196.
However, 	here 	there has 	been no demonstration 	(or 	even an
allegation) 	that 	the District's 	action constitutes 	an
alteration of 	an existing 	policy and 	there 	is 	no 	allegation
that 	the 	employer's 	interpretation and 	application of 	the
contract 	otherwise 	constitutes 	an unfair 	practice.
Accordingly, 	no 	colorable unfair 	practice 	has 	been 	presented 	in
the 	facts 	of 	this 	charge. 	Victor Valley Joint Union High
School District. 	(12/31/81) 	PERB Decision No. 	192.
CSEA argues 	that 	the District's 	application 	of 	section 	18.5.1
reduces 	rights 	of 	employees 	provided 	in the Education Code.
Therefore, 	according to CSEA, 	the 	language of 	the agreement
violates 	EERA 	section 	3540.
That 	provision 	reads 	in pertinent 	part as 	follows:
Nothing 	contained 	herein 	shall 	be 	deemed 	to
supercede other 	provisions 	of 	the Education
Code and 	the 	rules 	and 	regulations 	of 	public
school 	employers 	which 	establish and
regulate 	tenure 	or 	a merit 	or 	civil 	service
system or which provide 	for 	other 	methods 	of
administering 	employer-employee 	relations,
so 	long as 	the 	rules 	and 	regulations 	or
other 	methods 	of 	the 	public 	school 	employer
do 	not 	conflict with 	lawful 	collective
agreements.
To 	support 	its 	position, 	CSEA cites 	San Mateo City School
District v. 	Public Employment Relations Board 	(1983) 	33 	Cal.3d.
850. 	This 	case 	provided 	the Supreme Court 	to 	review PERB
decisions 	in Healdsburg Union High 	School 	District 	and
Healdsburg Union 	School 	District 	(6/19/80) 	PERB 	Decision 	No.
132 	and 	San Mateo City School District 	(5/20/80) 	PERB Decision
No. 	129. 	In the former 	case. 	PERB 	interpreted Government Code
section 	3540 	to 	prohibit 	negotiations 	only where 	provisions 	of
the 	Education Code would 	be 	replaced, 	set 	aside 	or 	annulled 	by

the 	language of 	the proposed contract 	clause. 	On remand, 	the
Board 	retained 	its 	approach. 	Healdsburg Union High 	School
District 	and Healdsburg Union 	School 	District 	(1/5/84) 	PERB
Decision No. 	375.
Mr. 	Brian Caldeira
December 31, 	1984
Page 5
In San Mateo 	the 	California 	Supreme 	Court, 	upholding 	the 	PERB's
approach, 	found 	that Education Code 	45298 	(the 	parallel
provision 	to 	section 	8817 	applicable 	to 	primary and 	secondary
schools) 	was 	among 	those 	statutes 	which mandate 	certain
procedures, 	protections 	and 	entitlements 	for 	classified
employees. 	"The 	intent of 	section 	3540 	is 	to preclude
contractual 	agreements 	which would 	alter 	these 	statutory
provisions. 	The 	court 	noted further 	that, 	"a 	contract proposal
which would 	alter 	the 	statutory 	scheme 	under 	PERB's 	application
of 	section 3540 	because 	the proposal 	would 	'replace 	or 	set
aside1 the 	section of 	the Education Code." 	Such a 	proposal
would 	violate 	the 	Government 	Code.
CSEA has 	failed 	to 	show that 	section 	18.5.1 would 	"replace 	or
set aside" 	section 88117 of 	the Education Code. 	It merely
argues, 	seizing on the 	language of 	section 88117 	outside 	its
full 	context 	that 	the Education Code 	intends 	that 	all 	laid 	off
employees 	should 	be 	rehired 	before 	any outside 	persons 	are
hired, 	regardless 	of 	their 	employmen	- t 	classification or 	their
qualifications 	for 	new vacancies.
Because 	the 	provisions 	of 	the 	collective 	bargaining agreement
do 	not appear 	to 	supercede Education Code guarantees, 	it 	is
unnecessary 	to 	reach a 	further 	question -- 	i.e., 	whether 	CSEA's
agreement 	to 	a 	purportedly substandard 	contract 	would 	estop 	the
Association 	from 	complaining 	about 	its 	alleged 	illegality.
(See Taylor v. 	Crane 	(1979) 	24 Cal.3d 442. 	155 Cal.Rptr. 	695.)
Accordingly, 	a 	complaint will 	not 	issue with respect 	to 	the
allegation 	that 	the District's 	interpretation and 	application
of 	section 18.5.1 of 	the parties' 	collective agreement 	is a
violation 	of 	EERA section 	3540.
If 	you 	have 	legal 	authority suggesting 	that 	the 	foregoing
approach 	is 	incorrect, 	please 	provide 	such authority by 	letter
within the 	timeline 	indicated 	below.. 	If 	there are any factual
inaccuracies 	in 	this 	letter 	or 	any 	additional 	facts 	which would
correct 	the 	deficiencies 	explained 	above, 	please 	amend 	the
charge accordingly. 	The amended 	charge 	should 	be 	prepared 	on a
standard 	PERB 	unfair 	practice 	charge 	form clearly 	labeled 	First

Mr. 	Brian 	Caldeira
December 31, 	1984
Page 6
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 	be 	served 	on 	the 	respondent 	and
the original proof 	of 	service must 	be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended 	charge 	or 	withdrawal 	from you 	before
January 3. 	1985, 	I 	shall dismiss your charge. 	If you have any
questions on how to proceed, 	please 	call 	me at 	(916) 	323-8015.
Sincerely yours.
Jorge 	Leon
Staff 	Attorney
JL :mn