San Diego Community College District (PERB 0662EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN DIEGO ADULT EDUCATORS, 	LOCAL
4289, 	AMERICAN FEDERATION OF
TEACHERS/CALIFORNIA FEDERATION
TEACHERS, AFL-CIO,
Charging Party,
v.
SAN DIEGO COMMUNITY COLLEGE
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-1905
Request 	for Reconsideration
PERB Decision No. 	662
PERB 	Decision No. 	662a
November 	23, 	1933
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Appearances: 	Liebert, 	Cassidy & Frierson by Larry J. 	Frierson
for San Diego Community College 	District; 	Gattey, 	Messersmith &
Fuchsman by James M. 	Gattey, 	Attorney, 	for San Diego Adult
Educators, 	Local 4289, 	American Federation of Teachers/California
Federation of Teachers, 	AFL-CIO.
Before Hesse, 	Chairperson: 	Porter, 	Craib, 	and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	The San Diego Adult Educators, 	Local
4289, 	American Federation of Teachers/California Federation of
Teachers 	(Union) 	and the 	San Diego Community College 	District
(District) 	each request reconsideration of Decision No. 	662,
issued by the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
on April 	5, 	1988.1 Having duly considered the requests 	for
reconsideration, 	the 	Board itself 	hereby denies 	those 	requests
for the reasons 	that 	follow.
Both 	parties 	filed requests 	for reconsideration pursuant 	to
PERB 	Regulation 	32410 	(PERB Regulations 	are 	codified 	at Calif.
Admin. 	Code, 	title 8, 	sec. 	31001 	et seq.).
_______________ )

In Decision No. 	662, 	the Board found, 	among other things,
that the District had, 	on two occasions, 	contracted with the
Foundation, 	a private non-profit organization, 	to offer certain
language 	classes 	previously 	taught 	by bargaining unit members.
Thus, 	the 	District had 	"contracted out" 	bargaining unit work
without 	providing 	the 	Union with notice 	and 	an 	opportunity 	to
negotiate 	in violation of 	the 	Educational 	Employment 	Relations
Act 	(EERA) 	section 3543.5 	(c).2
The 	Board 	found 	that 	the 	District 	entered 	into 	agreements
with 	the 	Foundation without 	affording 	the 	Union 	an 	opportunity 	to
bargain the June 	22 	and August 	23, 	1983 	decisions 	and their
effects. 	The June 	1983 	agreement with the Foundation 	followed a
prior management decision 	(in March 	1983) 	to discontinue 	certain
fee-based 	language 	classes 	offered by 	the 	District 	(French,
German, 	and Spanish). 	The August 	1983 agreement to contract out
was 	simply an extension of the June decision, 	albeit encompassing
the 	remaining 	fee-based 	language 	courses 	taught 	by 	District
employees.
Additionally, 	the 	Board provided prospective 	reinstatement
rights 	for 	those 	employees 	placed on 	layoff 	status 	due 	to 	the
(
2Government Code 	section 	3543.5(c) 	provides 	as 	follows
It 	shall 	be unlawful 	for a public 	school
employer to:
(c) 	Refuse or fail to meet and negotiate in
good 	faith with 	an 	exclusive 	representative.
N2

August 	1983 	action of the District. 	However, 	those teachers 	laid
off 	in March 	1983 were 	not reinstated, 	nor 	awarded back pay due
to 	the 	Board's 	conclusion that 	they were 	properly 	laid 	off.
DISCUSSION
PERB Regulation 32410(a) 	states, 	in pertinent part:
. 	. 	. 	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.
The Board has held, 	based on this regulation, 	that
reconsideration 	is 	not 	appropriate where 	a 	party merely restates
an 	argument 	previously 	considered 	and 	rejected 	by 	the 	Board 	in
its 	underlying decision. 	(Rio 	Hondo Community College 	District
(1983) 	PERB Decision No. 	279a.)
The 	argument raised by the 	Union 	in 	its 	request 	for
reconsideration 	reiterated 	arguments 	considered 	and 	rejected 	by
the 	Board 	in the 	underlying decision. 	The 	Union's 	position 	is
based 	on 	the 	theory 	that 	restoration 	of 	reinstatement 	rights 	is
"fair" 	to those 	teachers who were 	laid off 	in March. 	These
teachers were 	laid off prior 	to the 	contract with the 	Foundation,
and were 	not afforded back pay and reinstatement, 	unlike 	the
hourly 	instructors 	laid off 	in August 	1983.
Since 	the 	layoff in March 	1983 was 	lawful, 	we 	cannot 	order
back pay or 	reinstatement 	under 	EERA. 	The 	Board 	simply 	cannot
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remedy conduct that does 	not 	constitute 	an EERA violation. 	The
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teachers 	still 	retain their 	statutory rights 	under 	Education 	Code
section 87746.
The District raises 	two arguments. 	First, 	the decision to
contract with the Foundation to teach French, 	German, 	and Spanish
was not contracting out. 	According to the District, 	since 	the
District originally intended to cease 	offering these 	classes, 	any
action 	to 	contract with 	the 	Foundation was 	antedated by 	the
lawful 	cessation of the classes 	and, 	thus, 	cannot be based on
labor costs. 	In essence, 	the 	lawful decision made 	in March 	1983
to 	discontinue 	the 	classes 	should 	insulate 	the 	District 	from 	any
liability 	for 	later 	actions 	in 	contracting with 	the 	Foundation.
The 	second 	argument 	advanced by the 	District 	is 	that 	the
August decision to terminate all 	language 	classes was, 	likewise,
not based on labor costs and, 	thus, 	the decision is non-
negotiable. 	That is, 	the decision to contract with the
Foundation was 	for 	purposes 	other 	than reducing 	costs 	because 	the
classes 	were 	already 	self-supporting.
The District's 	arguments 	are without merit. 	While 	the
decision to 	lay off 	teachers 	in March 	1983 was 	proper and
nonnegotiable, 	the decision to 	contract with the 	Foundation was
negotiable. 	The 	Board recognized this 	very dichotomy when 	it
declined to 	find the March 	1983 	layoff 	improper. 	But, 	merely
because 	that decision was proper, 	all 	later action is 	not
"insulated." 	The work done by the 	Foundation was 	at 	the 	behest
of, 	with the 	cooperation of, 	and for the benefit of the District.
The 	District did not really cease 	to offer 	language 	classes,
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instead 	it 	continued to 	exercise 	control 	while 	the 	Foundation,
the 	District's 	agent, 	provided the 	language classes. 	That
contract must be rescinded, 	at least until 	the parties 	have
negotiated the 	decision to 	contract 	out.
As 	to the 	second argument raised by the District, 	that the
action 	in 	laying off 	teachers 	in August 	1983 was 	not based on
labor costs, 	this 	too is meritless. 	The action in August would
not 	have 	occurred but 	for 	the 	earlier 	layoff 	(based 	on 	labor
costs) 	and the 	decision to 	contract out 	language 	services.
ORDER
The requests 	for reconsideration of 	PERB Decision No. 	662
(Case No. 	LA-CE-1905) 	are hereby DENIED.
Members 	Craib and 	Shank 	joined in this 	Decision.
Member 	Porter's 	concurrence 	and dissent begins 	on page 	6.
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Porter, 	Member, 	concurring and dissenting: 	I 	concur in the
denial 	of the 	Union's 	request 	for reconsideration. 	I 	would grant
the 	District's 	request 	for reconsideration.
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