San Francisco Community College District * * * ANNULLED by United Public Employees v. PERB (1989) 213 Cal.App.3d 1119 (PERB 0688E)

ANNULLED by UPE v. PERB 213 Cal.App.3d 1119 (1989)
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.
)
)
)
) 	Case No. SF-CE-1114
PERB 	Decision No. 	688
June 	27, 	1988
)
)
)
)
)
)
___________________)
)
Appearances: 	Ronald A. 	Glick for the San Francisco Community
College District.
Before 	Hesse, 	Chairperson, 	Porter 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). 	United
Public 	Employees, 	Local 	790, 	SEIU, 	AFL-CIO 	(Local 	790 or SEIU),
the 	exclusive representative 	for 	classified employees, 	alleged
that the District unilaterally adopted a 	policy barring
classified personnel 	who worked in the District from also
serving as certificated employees, 	in 	violation of sections
3543.S(a), 	(b), 	(c), 	and 	(d) 	of the Educational Employment
I
I)•..
~

Relations
	Act
	(EERA
	or 	Act).
1	
The
	ALJ
	dismissed 	the
	unfair
labor
	practice
	charge
	on
	the
	ground
	that,
	because
	SEIU
	is
	the
exclusive
	representative
	for
	classified
	employees 	working
	in
the
	District,
	subjects
	related 	to
	employees
	in
	their
	capacity
as
	certificated
	employees
	are
	beyond
	its
	scope
	of
representation.
	While
	we
	affirm 	the
	ALJ's
	dismissal,
	we
	reach
our 	conclusion 	for
	different
	reason$,
	as
	set
	forth
	below.
PROCEDURAL
	HISTORY
On
	July
	21,
	1986,
	SEIU
	filed
	a
	charge
	alleging 	unfair
practices
	by
	the
	District.
	On
	November
	26,
	1986,
	the
lThe
	EERA
	is
	codified
	at
	Government
	Code
	section
	3540,
	et
seq.,
	and
	is
	administered
	by
	the
	PERB.
	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,
	orcoerce
	employees
	because 	of
	their
	exerciseof
	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 	theformation 	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.
2

San
	Francisco
	Community
	College
	Federation
	of
	Teachers,
	AFT
2121
	(Federation)
	filed
	its
	own
	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
	policy barring
	classified
personnel
	working
	in
	the
	District
	from
	also
	serving
	as
certificated
	employees.
	A
consolidated 	hearing
	was
	held
	on
January
	29, 	1987.
2
Separate 	decisions
	were
	issued.
FACTUAL
	SUMMARY
The
	District
	had,
	for
	a
	number
	of 	years,
	employed
	as
certificated
	employees
	individuals
	who
	also
	held
	classified
positions
	within 	the
	District.
Certificated
	employees
	of 	the
	District
	are 	represented
	by
the 	Federation
	and
	are
	covered by
	a
	bargaining
	agreement
between
	that
	union
	and
	the
	District.
	Local
	790 	was
	voluntarily
recognized
	by
	the
	District
	as 	the 	exclusive 	representative
	of
classified
	employees
	in
	February 	1986.
The
	District
	admits
	that
	it
	adopted
	a 	new
	policy,
	which
	is
the
	subject
	of
	this
	dispute,
	in
	a
	statement 	issued
	by
	the
District's
	chancellor
	on
	June 	24,
	1986.
	The
	policy 	prohibited
full-time 	classified
	employees
	from
	part-time
	employment
	as
certificated
	employees. 	This
	represented
	a
	change 	from
	the
2This
	decision
	is 	limited 	to
	Case
	No~
	SF-CE-1114 	whichwas
	filed
	by
	SEIU. 	The
	charge
	filed
	by 	the 	Federation 	isdesignated 	as 	Case 	No. 	SF-CE-1146.
3

past
	practice
	of 	the
	District.
	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
	part-time
	certificated 	staff
	policy
	was
delayed
	to
	Spring
	1987
	because
	''staffing
	difficulties"
	were
anticipated.
The
	District,
	in
	unilaterally
	foreclosing
	the 	opportunity
for
	classified
	employees
	to
	work
	in 	the
	certificated
	positions,
desired 	to
	avoid
	the
	payment
	of 	overtime
	implicated
	by
	this
Board's 	decision 	in
	San
	Francisco
	Community
	College
	District
(1986)
	PERB
	Order
	No.
	Ad-153.
	In
	San
	Francisco
	Community
College
	District,
	supra, 	the
	District
	was
	found 	by
	the
	Board
	to
be
	the
	employer
	of 	the
	classified
	employees 	working
	within 	the
District.
3	
In 	the
	District's
	opinion, 	the 	Board's 	order
finding
	that
	the
	District
	was
	the
	employer
	of
	classified
employees, 	coupled 	with 	the 	Fair
	Labor
	Standards
	Act's
dual-capacity 	salary
	requirements,
	would 	have
	subjected 	the
District 	to 	overtime
	liability,
	which
	it
	wanted
	to 	avoid.
3The
	District 	in
	San
	Francisco
	Community
	College
	District
(1986)
	PERB
	Order
	No. 	Ad-153,
	asserted 	that 	the 	City
	and 	County
of
	San
	Francisco
	was
	the 	exclusive 	employer 	of 	classifiedemployees, 	and 	not 	the 	District. 
4

DISCUSSION
The 	ALJ,
	in
	his
	proposed
	decision,
	held
	that,
	while
	PERB
has
	jurisdiction
	over
	the
	instant
	complaint, 	the
	subject
	at
hand
	is
	related 	solely 	to
	certificated
	staff
	and
	therefore
beyond
	the
	scope
	of
	representation
	for 	the
	classified
	employee
union.
	The
	ALJ
	concluded
	that,
	since
	this
	issue
	was
dispositive,
	it
	was
	unnecessary
	to
	reach 	the
	other
	defenses
	put
forth
	by
	the
	District
	and
	dismissed 	the 	complaint.
Notably,
	the
	ALJ,
	by
	way
	of 	footnote,
	stated 	that:
The
	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 	Meyers-Milias
Brown
	Act.
	As
	stated
	above,
	the 	present 	dispute
can be
	resolved 	without 	engaging
	in
	such
	a
complex
	line-drawing
	exercise.
While
	we
	agree
	that 	this
	complaint 	should be
	dismissed,
	we
disagree
	with
	the
	ALJ's
	rationale
	for
	doing
	so.
A
	threshold 	question,
	which
	the
	ALJ
	did 	not 	address,
	is
whether
	the
	District 	is
	a
	public 	school
	employer
	of
	classified
employees
	within 	the
	meaning
	of
	EERA
	section 	3540.l(k).
	For
the 	reasons
	which
	follow,
	we
	conclude
	that
	the
	District 	is
	not
a
	public 	school 	employer
	of
	classified
	employees.
In
	San
	Francisco
	Community
	College
	District
	(1986)
	PERB
Order
	No. 	Ad-153
	the
	Board 	concluded
	that 	the
	District 	is 	the
5

joint
	employer
	of
	classified
	employees
	along 	with 	the 	City
	and
County
	of
	San
	Francisco
	and,
	since 	the
	District 	is
	a
	public
school
	employer
	within 	the
	meaning
	of
	the
	Act,
	PERB
	has
jurisdiction
	to
	hear
	unfair 	practice
	complaints
	affecting
classified
	employees.
The
	Board's
	rationale
	in
	support
	of
	its
	conclusion
	was
	that
the 	record
	failed 	to 	substantiate
	the
	District's
	claim
	that
	it
is
	a
	•~ere 	department"
	of 	the
	city
	and
	therefore
	cannot
	be
	a
"public
	school
	employer"
	to
	classified
	employees
	within 	the
meaning
	of
	EERA
	section 	3540.l(k).
	In
	addition,
	the
	Board
	took
official
	notice 	of 	several
	cases 	involving
	certificated
employees
	before
	PERB,
	where
	the
	District
	had
	defended
	itself
without 	claiming
	a
	jurisdictional
	defense.
The
	District
	argued
	that
	Education
	Code
	sections
	88000 	and
88137,
	when
	read
	together,
	exempt
	it
	from
	the 	requirements
	of
EERA
	with 	regard
	to
	classified
	employees
	because 	the
	District
lies
	wholly
	within
	a
	city
	and
	county.
	The
	Board
	rejected 	this
argument
	on
	the
	ground
	that
	it
	did 	not
	comport
	with
	legislative
intent.
The 	Board
	stated 	that:
In 	our 	view,
	all
	section
	88000
	purports 	to
do
	is
	exempt
	the
	District
	from
	therequirements 	of
	certain 	sections 	of 	theEducation
	Code.
	EERA,
	however,
	is 	part
	ofthe
	Government 	Code.
	Neither 	Chapter
	1
	nor
Chapter
	4
	pertains 	to 	collectivebargaining. 	Neither 	section
	88000
	nor
section
	88137
	refers 	to
	EERA
	or 	the
jurisdiction 	of
	PERB
	and,
	clearly, 	neither
specifically
	exempts
	the
	District
	from
	the
requirements 	of
	EERA
••••
6

The 	District 	relies 	on 	the 	language 	of
section 	88137 	primarily 	to 	support 	its
second, 	related 	argument. 	It 	contends 	that
the 	classified 	employees 	are 	subject 	solely
to 	the 	Charter, 	which 	in 	turn 	makes 	the
City's 	civil 	service 	system 	the 	sole
regulatory 	scheme 	for 	its 	classified
employees 	and, 	thus, 	the 	City 	the 	true
employer 	of 	Barnes ••••
Again, 	such 	a 	broad 	reading 	of 	section
88137 	is 	not 	warranted; 	indeed, 	the 	final
provision 	of 	the 	section 	leads 	to 	a
contrary 	conclusion. 	It 	says 	that 	the
governing 	board 	of 	the 	District 	shall 	have
the 	right 	to 	fix 	the 	duties 	of 	its
employees. 	As 	we 	read 	the 	section,
therefore, 	it 	does 	not 	establish 	the
District's 	classified 	personnel 	as
employees 	of 	the 	City; 	rather, 	it 	expressly
refers 	to 	those 	workers 	as 	employees 	of 	the
District, 	and 	affirms 	the 	District's
authority, 	as 	the 	employer, 	to 	direct 	the
employees 	in 	their 	work. 	(Fn. 	omitted.)
(PERB 	Order 	No. 	Ad-153), 	pp. 	11-12.)
Finally~ 	the 	Board 	embraced 	the 	theory 	of 	a 11
joint
employer 11 	relationship 	in 	support 	of 	maintaining 	jurisdiction
when 	it 	said:
We 	agree, 	and 	conclude 	that 	the 	District
and 	the 	City 	each 	possess 	employer
authority. 	While 	the 	City 	and/or
Commission 	appears 	to 	control 	fundamental
matters 	of 	wages 	and 	hours, 	it 	remains
clear 	from 	Education 	Code 	section 	88137 	and
Charter 	section 	5.104 	that 	the 	operation
and 	management 	of 	the 	school 	system,
including 	the 	power 	to 	fix 	and 	assign
duties 	of 	classified 	employees; 	is 	reserved
solely 	to 	the 	governing board 	of 	the
District. 	(PERB 	Order 	No. 	Ad-153~ 	p. 	16.)
We 	believe 	that 	PERB 	Order 	No. 	Ad-153 	is 	incorrect 	and 	that
PERB 	does 	not 	have 	the 	authority 	to 	exercise 	jurisdiction 	in
matters 	involving 	classified 	employees 	working 	in 	the
District. 	The 	Board 	in 	PERB 	Order 	No. 	Ad-153 	misinterpreted
7

the
	clear
	language
	of
	Education
	Code
	sections
	88000
4	
and,
particularly,
	88137
5	
as
	it
	relates
	to
	the
	city
	charter;
	nor
did 	the
	Board
	give
	due
	regard
	to
	prior
	PERB
	precedent 	regarding
the
	elements
	establishing 	"joint
	employer"
	status.
	Moreover,
in 	finding
	jurisdiction
	to
	exist
	under
	those 	circumstances, 	the
Board,
	in
	effect,
	defeated 	the
	very 	purpose
	of
	EERA
	inasmuch
	as
the
	constraints
	of 	the
	city
	charter
	(which
	controls
	wages,
hours
	and
	other
	terms
	and
	conditions
	of
	employment)
	place 	those
subjects
	beyond
	the
	control
	of 	the
	District,
	and
	thereby
preventing 	the 	opportunity 	to
	conduct 	meaningful
	negotiations
over
	subjects 	within
	scope.
The
	sole
	statutory
	support
	advanced 	by
	the
	Board
	in
	PERB
Order
	No.
	Ad-153
	for 	the
	position 	that
	the
	District 	is
	also
	the
employer
	of
	classified
	employees 	depends
	on
	the 	construction 	of
4Education
	Code
	section
	88000
	states
	in
	pertinent 	part:
Application 	of 	provision 	to
	classified
	employees
. 	. 	. 	. . . 	. 	. 	. 	. 	. 	. 	. . . 	. 	. . 	. 	. 	. 	.
These
	provisions
	shall
	not 	apply
	to
employees
	of
	a
	community
	college
	district
lying
	wholly
	within
	a
	city
	and
	county
	which
provides 	in
	its
	charter 	for
	a
	merit
	system
of
	employment
	for
	employees 	employed
	in
positions
	not
	requiring
	certificationqualifications.
. 	. 	. 	. . 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. . 	. 	. 	.
5Education
	Code
	section
	88137
	states:
In 	every
	community
	college
	district
coterminous 	with 	the 	boundaries 	of
	a
	city
8

a
	single
	word
	used
	in
	a
	very
	limited
	context 	in
	the
	Education
Code.
	Education
	Code
	section
	88137
	grants
	the
	District
	the
right
	to 	fix
	the
	duties
	of
	"its"
	employees.
	The
	Board
	stated
that
	use
	of
	the
	word
	"its"
	denotes
	a
	legislative
	recognition 	of
the
	employer-employee
	relationship
	between
	the
	District
	and
classified
	employees
	who
	perform
	services
	for
	it.
	That
	word,
the
	Board
	reasoned,
	combined
	with
	a
	legislative 	failure
	to
specifically
	exempt
	the
	District
	from
	the
	provisions 	of
	EERA,
constitutes
	sufficient
	legal 	authority 	to
	extend
	PERB's
jurisdiction
	to
	those
	classified
	employees.
Our
	revisiting
	the
	relevant 	provisions 	of
	the 	Education
Code
	leads
	to 	the 	conclusion
	that
	the
	District 	is
	not 	the
employer
	of
	classified
	employees.
	We
	note
	that 	classified
employees
	of 	the
	District
	have
	a
	unique
	status
	under
	the
	law:
The
	first
	paragraph 	of 	Education
	Code
	Section
	88000
	provides
that
	a
	multitude 	of 	Education
	Code
	provisions
	apply
	to
	both
merit
	and
	non-merit 	school
	districts.
	When
	those 	provisions
are
	examined,
	virtually
	every
	statute
	governing
	employment
	of
classified
	employees,
	except 	those
	pertaining 	to 	the 	merit
and
	county,
	employees
	not
	employed
	in
positions 	requiring
	certificationqualifications 	shall
	be 	employed,
	if
	the
city
	and
	county has
	a
	charter 	providing 	for
a
	merit 	system 	of
	employment,
	pursuant 	tothe 	provisions 	of
	such
	charter 	providing
for 	such 	system 	and
	shall, 	in
	all
	respects,
be
	subject 	to,
	and have
	all 	rights 	grantedby, 	such
	provisions; 	provided, 	however,
that 	the 	governing board 	of 	the
	districtshall
	have 	the 	right 	to 	fix 	the 	duties 	of
all
	of
	its 	noncertificated 	employees.
9

system,
	is
	included.
	According
	to
	the
	second
	paragraph
	of
section
	88000, 	however,
	these
	same
	provisions
	do
	not 	apply
	to
noncertificated
	employees
	of
	the
	District
	due
	to
	its
coterminous
	boundaries 	with 	the
	city.
The
	question
	becomes,
	then:
	What
	provisions 	are
	not
covered 	under
	the
	first
	paragraph,
	and
	thus
	would
	apply
	to
	the
District?
	Of
	those
	articles
	not
	specifically
	excluded,
	the
only
	article
	of
	any
	substance
	is 	Article
	3,
	governing
	merit
districts.
	As
	the
	District
	pointed 	out
	in
	its
	post-hearing
brief,
	within
	Article
	3
	is 	section
	88137, 	which
	states 	that
	as
long 	as
	San
	Francisco's 	charter
	provides 	for
	a
	merit
	system,
classified
	employees
	of 	the
	district
	"shall 	in
	all
	respects,
	be
subject 	to,
	and 	have
	all
	rights
	granted 	by,
	such
	[charter]
provisions~
	•••
"
	(Section
	88137;
	emphasis
	added:)
	The
	only
exception
	is 	that
	the
	district
	has
	the
	right
	to 	fix 	duties.
As 	a
	result
	of 	the
	combined
	reading 	of
	sections
	88000 	and
88137,
	the 	only
	statutory
	power
	granted
	to
	the
	District
	with
regard
	to
	"its" 	classified
	employees
	is
	the
	right 	to 	assign
duties.
	The
	employees
	themselves 	enjoy
	none
	of 	the 	Education
Code
	benefits
	and
	protections
	given
	to
	all
	other
	classified
school
	employees
	in 	the
	State
	of
	California.
	Rather, 	they
	must
look
	to
	San
	Francisco's 	charter
	and
	civil
	service 	rules.
	PERB
is
	not
	empowered
	to 	grant 	the
	District
	any
	additional 	authority
over 	those 	employees. 	Such
	a
	grant 	of 	authority
	must
	come
	from
the
	San Francisco 	charter.
10

EERA
	defines 	"public
	school
	employee"
	as
	"any
	person
employed
	by
	any
	public
	school
	employer
	•
II
	(Gov.
	Code
sec.
	3540.l(j);
	emphasis
	added.)
	As
	set
	out,
	supra,
	since 	the
charter
	provides
	that
	classified
	employees
	are
	employees
	of 	the
City
	and 	County
	of
	San
	Francisco
	and
	the
	city 	is
	clearly
	not
	a
public
	school
	employer,
	classified
	employees
	are
	not
	public
school
	employees
	within 	the
	meaning
	of
	EERA.
The
	fact
	that
	the
	District
	has
	voluntarily
	recognized
Local
	790
	is 	irrelevant.
	PERB
	is
	an
	administrative
	agency
	of
limited
	jurisdiction.
	Administrative 	agencies
	"have
	only
	such
powers
	as
	have
	been
	conferred
	on
	them,
	expressly
	or
	by
implication,
	by
	constitution
	or
	statute."
	(Ferdig
	v.
	State
Personnel
	Bd.
	(1969)
	71
	Cal.2d
	96,
	103.)
	"An
	administrative
agency;
	therefore;
	must
	act
	within 	the
	powers
	conferred
	upon
	it
by
	law 	and
	may
	not
	validly 	act 	in
	excess 	of
	such 	powers.
(Citations 	omitted.)"
	(Ferdig 	v.
	State
	Personnel 	Bd.,
	supra,
at
	p.
	104;
	accord
	City
	and 	County
	of
	San
	Francisco
	v.
	Padilla
(1972)
	23
	Cal.App.3d
	388,
	399-400.) 	In
	jurisdictional
	matters,
parties
	cannot, 	by
	their
	act
	of 	recognition, 	create
jurisdiction
	where 	none
	exists
	under
	statute.
To
	read 	Education
	Code
	sections
	88000 	and 	88137
	as 	giving
jurisdiction 	to
	PERB
	in
	this
	instance
	would 	do
	violence 	to 	the
Legislature's
	intended 	purpose 	of
	EERA
	which,
	to
	be
sure,
	is"
•••
	to
	promote
	the
	improvement
	of 	personnel
management 	and 	employer-employee
	relations 	within 	the 	public
11

school
	systems
	•
	II
•
• 	I	
but
	this
	charge
	is
	tempered by
	our
recognition
	that
	nothing 	contained
	in
	EERA:
•••
	shall
	be
	deemed
	to
	supersede
	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.
	(Gov.
	Code
	sec.
	3540.)
This
	Board's
	prior
	conclusion, 	in
	Ad-153,
	that
	the
	District
is
	the
	joint
	employer
	of
	classified
	employees
	is
	contrary 	to
well-established
	Board
	precedent.
	In
	Alameda
	County 	Board
	of
Education
	and 	County
	Superintendent 	of
	Schools
	of
	Alameda
County 	(1983)
	PERB
	Decision
	No.
	323,
	the
	Board
	concluded
	that
	a
joint
	employer
	relationship
	was
	not
	established.
	The
	Board
reasoned:
EERA
	subsection 	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.
This
	subsection,
	like 	section
	2(2)
	of 	the
National
	Labor
	Relations
	Act
	(NLRA),
	is
	a
jurisdictional 	definition 	identifying
	the 	types
of 	agencies 	subject 	to
	PERB
	jurisdiction.
	To
determine 	whether 	an 	agency 	so
	listed 	is
	an
employer
	in
	a
	given
	instance,
	it
	is
	appropriate
to 	consider
	whether
	the 	alleged
	employer 	has
such
	"sufficient 	control 	over 	the
	employment
conditions 	of
	its
	employees
	to 	enable
	it
	to
bargain 	with
	a
	labor 	organization
	as
	their
representative."
	See
	National 	Transportation
Service, 	Inc.
	(1979)
	240
	NLRB
	565
	[100
	LRRM
1263]. 	(Emphasis
	added.) 	See
	also
	North
American 	Soccer 	League 	v.
	NLRB
	(1980 	613
	F.2d
12

1379
	[103
	LRRM
	2976];
	cert.
	den.
	(1980)
	449
	U.S.
899
	[105
	LRRM
	2737],
	(
"existence
	of
	joint
employer
	relationship
	depends
	on
	the
	control
which 	an
	employer
	exercises,
	or
	potentially
exercises,
	over
	the 	labor
	relations
	policy 	of
the
	other").
	(Footnote
	omitted.)
	(Id., 	at
	p.
14.)	
-
The
	record
	supports
	that,
	with
	regard
	to
	classified
employees,
	the
	District
	does
	little
	more
	than
	assign
	duties 	to
classified
	employees.
	The
	city,
	through
	the
	Civil
	Service
Commission,
	exercises 	control
	over
	hiring,
	wages,
	hours
	of
work,
	suspension
	and
	dismissal, 	health
	and
	welfare
	benefits,
leave
	and
	transfer 	policies,
	performance
	evaluations,
	grievance
procedures,
	safety
	equipment
	and
	uniforms
	and
	uniform
allowances. 	All 	of 	these
	indicia
	of
	employment
	are 	prescribed
by
	civil
	service 	rules, 	regulations
	and
	the 	Salary
Standarization
	Ordinance:
In 	Herbert
	Harvey,
	Inc.
	v.
	NLRB
	(1969 	D.C.
	Cir.)
	424
	F.2d
770
	[72
	LRRM
	2213],
	the
	NLRB
	concluded
	that
	Herbert
	Harvey,
Inc.,
	a
	contractor
	which
	provided
	janitorial
	services 	to 	the
World 	Bank, 	was
	a
	joint
	employer
	of 	the
	janitors.
6
Herbert
Harvey,
	Inc., 	petitioned
	the 	court 	of 	appeal
	to 	reverse 	the
NLRB's
	finding, 	while 	the
	NLRB
	petitioned
	the 	court 	of 	appeal
6Tbroughout
	its 	litigation,
	Herbert
	Harvey
	Inc. 	took 	the
position 	that 	the
	World 	Bank 	was
	the
	employer
	of 	themaintenance 	workers 	and, 	due
	to 	the 	Bank's
	status
	as 	an
international 	organization,
	it
	was 	immune
	from
	the
	NLRB's
jurisdiction.
13

to 	enforce 	its 	order. 	The 	court 	of 	appeal 	granted 	the 	NLRB's
petition 	for 	enforcement 	after 	concluding 	that 	substantial
evidence 	supported 	the 	NLRB's 	decision.
In 	affirming 	the 	NLRB, 	the 	Court 	of 	Appeal 	reasoned 	that:
••• 	[t]he 	paramount 	question 	is 	whether
enough 	authority 	over 	labor 	relations 	is
lodged 	in 	such 	a 	contractor 	to 	enable 	a
satisfaction 	of 	bargaining 	obligations
under 	the 	Act 	•••• " 	(Id., 	at 	LRRM 	2219.)
In 	reviewing 	the 	NLRB's 	analysis 	of 	the 	extent 	to 	which
Herbert 	Harvey, 	Inc. 	was 	involved 	in 	an 	employment 	relationship
with 	the 	janitors, 	the 	court 	observed 	that:
The 	Board 	recognized 	that 	the 	Bank 	has 	to
some 	extent 	participated 	in 	the 	hiring 	and
firing 	of 	employees. 	It 	acknowledged 	that
the 	Bank 	approves 	promotions 	and 	year-end
wage 	increases 	but 	saw 	from 	the 	evidence
that 	the 	Bank 	routinely 	agrees 	to 	them:
But 	despite 	so much 	of 	an 	interlinking
relationship 	between 	the 	Bank 	and 	Harvey
over 	the 	employees, 	the 	Board 	found 	that
primary 	control 	of 	the 	employees 	was 	vested
by 	the 	contract 	in 	Harvey 	and 	was 	actually
exercised by Harvey. 	In 	the 	Board's
judgment, 	"[s]o 	far 	as 	the 	record 	reveals,
the 	extent 	of 	[Harvey's] 	acquiescence 	in
the 	World 	Bank's 	participation 	in 	the
hiring, 	discharge, 	and 	assignment 	of
employees 	was 	no 	more 	than 	that 	which 	any
service 	company 	would 	permit 	in 	order 	to
please 	its 	clients, 	and 	the 	World 	Bank's
participation 	in 	promotions 	and 	the 	setting
of 	wage 	scales 	was 	no 	more 	than 	an 	exercise
of 	its 	right 	to 	police 	the 	costs 	being
incurred 	under 	the 	contract." 	"Indeed,"
the 	Board 	observed, 	"for 	the 	World 	Bank 	to
have 	participated 	to 	any 	great 	degree 	in
the 	employment 	conditions 	of 	the 	employees
would be 	to 	interfere 	with 	[Harvey's]
obligation 	to 	obtain 	and 	retain 	the
competent 	employees 	necessary 	to 	render 	the
efficient 	and 	economical 	service 	which 	it
14

was
	hired 	to
	provide
	under
	the
	contract
with
	the
	World
	Bank."
	Thus
	the
	Board
	was
led 	to
	"conclude
	that
	[Harvey]
	exercises
effective
	control
	over
	the
	working
conditions 	of
	its
	employees 	and
	is 	fully
competent
	to bargain
	with
	the
	Union
	in
accordance 	with
	the
	provisions
	of
	the
Act."
	(Id., 	at
	LRRM
	2218
	[fns.
	omitted].)
We
	adopt
	the
	NLRB's
	reasoning
	in
	Herbert
	Harvey,
	Inc.,
	in
that,
	the 	standard 	for 	joint-employer
	status 	that
	the
	NLRB
looked
	to
	was
	the 	indices 	of
	control
	from
	which
	the
	authority
over
	labor
	relations
	rests.
	On
	the
	facts
	before
	us,
	unlike
Herbert
	Harvey
	Inc.,
	the
	District
	has
	no
	remarkable
	indices 	of
control.
	We
	conclude
	that
	the
	classified
	employees
	represented
by
	SEIU
	are
	employees
	of 	the 	City
	and 	County
	of
	San
	Francisco.
We
	so 	conclude
	because, 	here, 	the
	District's
	assignment
	of
duties 	to
	classified
	employees
	is
	nothing
	more
	than
	an
	exercise
of
	its
	right
	to 	insure
	that
	work
	is
	accomplished
	in 	the
	best
interests
	of 	the
	District.
	By
	far
	and 	away,
	the 	primary
control 	of 	the
	employees
	is 	actually
	exercised
	by
	the 	City
	and
County
	of
	San
	Francisco.
	Accordingly,
	we
	overrule
	PERB
	Order
No. 	Ad-153
	to 	the 	extent 	that
	it
	is
	inconsistent
	with 	the
	views
expressed
	herein.
ORDER
For
	the 	foregoing 	reasons, 	the
	unfair 	practice
	charge 	in
Case
	No.
	SF-CE-1114
	is
	DISMISSED.
Chairperson 	Hesse 	and
	Member
	Porter 	joined 	in 	this
	Decision.
15