California State University, San Diego * * * OVERRULED by Long Beach Community College District (2003) PERB Decision No. 1564, and Los Angeles Unified School District (2014) PERB Decision No. 2359 (PERB 0718H)

OVERRULED by Long Beach Community College District (2003) PERB Decision No. 1564,
and Los Angeles Unified School District (2014) PERB Decision No. 2359
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Charging Party,
v.
CALIFORNIA 	STATE UNIVERSITY,
SAN DIEGO,
Respondent.
)
)
)
) Case Nos. 	LA-CE-115-H
LA-CE-119-H
PERB Decision No. 718-H
January 17, 1989
)
)
)
)
)
)
)
Appearances: 	Mark 	De 	Boer, 	Attorney, 	for 	California 	State
Employees 	Association; 	William 	B. 	Haughton, 	Attorney, 	for
California 	State 	University.
Before Hesse, Chairperson; Porter, Craib and Shank, Members.
DECISION
PORTER, Member: 	This 	case 	( C h a r g e 	No. LA-CE-119-H)1
is before the Public Employment Relations Board 	( PERB 	or
Board)
on exceptions 	filed by California 	State University 	(San 	Diego)
(C SUSD) to the proposed 	decision 	of a PERB administrative 	law
judge 	(ALJ). 	The ALJ 	found 	that CSUSD 	violated 	section 	3571,
subdivision 	( c) and, 	derivatively, 	subdivisions 	( a) and 	( b)
of the Higher Education Employment-Employee Relations Act
1At the beginning 	of the hearing 	in this case, the
charging party moved 	to withdraw 	charge No . LA-CE-115-H. 	The
ALJ granted 	the motion. 	Thus, the only charge now before 	the
Board 	is charge No. LA-CE-119-H.

(HEERA) . We reverse the ALJ and dismiss the complaint for
the following reasons.
FACTUAL SUMMARY
The charge in the instant case was filed by the California
State Employees Association (CSEA) on November 26, 1984. 	It
alleged that CSUSD violated HEERA section 3571, subdivision (c)
and, derivatively, subdivisions (a) and (b) by its unilateral
transfer of tree trimming work to CSUSD employees outside the
unit. CSEA alleged that this occurred when CSUSD had certain
Unit 6 employees--namely, one individual occupying a Plumber I
classification--perform Unit 5 tree trimming work.
CSEA was certified as the exclusive representative of
Unit 5 on February 16, 1982. Prior to CSEA's certification,
PERB established statewide bargaining units by incorporating
HEERA is codified at Government Code section 3560
et seq. Unless otherwise indicated, all statutory references
herein are to the Government Code. HEERA section 3571
provides, in pertinent part:
It shall be unlawful for the higher education 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 engage in meeting and
conferring with an exclusive representative.
2
(HEERA). 2	
We
	reverse
	the
	ALJ
	and
	dismiss 	the
	complaint
	for
the 	following
	reasons.
FACTUAL
	SUMMARY
The
	charge
	in 	the
	instant
	case
	was
	filed
	by
	the
	California
State
	Employees
	Association
	(CSEA)
	on
	November
	26, 	1984.
	It
alleged
	that
	CSUSD
	violated
	HEERA
	section
	3571,
	subdivision
	(c)
and,
	derivatively,
	subdivisions
	(a)
	and 	(b)
	by
	its
	unilateral
transfer
	of
	tree
	trimming
	work
	to
	CSUSD
	employees
	outside 	the
unit.
	CSEA
	alleged
	that 	this
	occurred
	when
	CSUSD
	had
	certain
Unit
	6
	employees--namely,
	one
	individual
	occupying
	a
	Plumber
	I
classification--perform
	Unit
	5
	tree
	trimming
	work.
CSEA
	was
	certified
	as
	the 	exclusive
	representative 	of
Unit
	5
	on
	February 16, 	1982.
	Prior 	to
	CSEA's
	certification,
PERB
	established
	statewide 	bargaining
	units
	by
	incorporating
22HEERA	
is
	codified
	at
	Government
	Code
	section
	3560
et
	seq.
	Unless
	otherwise
	indicated,
	all
	statutory
	references
herein 	are 	to 	the
	Government 	Code.
	HEERA
	section
	3571
provides, 	in
	pertinent 	part:
It
	shall
	be 	unlawful 	for 	the 	higher 	education
	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
	engage
	in 	meeting 	and
conferring 	with 	an
	exclusive 	representative.
2

the numerous classifications already existing throughout the
California State University system. 	The classifications describe
jobs by title, task and the level of skill required. (See HEERA
sec. 3579 and Unit Determination for Employees of the California
State University and Colleges (1981) PERB Decision No. 176-H. )
The two units implicated herein are Unit 5, identified as
Operations-Support Services, and Unit 6, identified as Skilled
Crafts.
Unit 5 includes, in part, the classifications of
Groundsworker, Tree Trimmer I and Tree Trimmer II. Essentially,
Tree Trimmer I and Tree Trimmer II are distinguished from the
Groundsworker in that trimming trees constitutes the main
function of the first two positions, with only incidental grounds
maintenance work involved. Tree Trimmer II is distinguished from
Tree Trimmer I in that it calls for a substantial portion of the
work to be performed at a high elevation and involves the use of
specialized climbing equipment.
There are approximately 40 employees in Unit 5 at CSUSD. 	of
these, 15 are Groundsworkers. CSUSD has never had employees in
the classifications of Tree Trimmer I or II. There has never
existed a need for a permanent tree trimmer at the San Diego
campus due to the number, height and types of trees which grow
at CSUSD.
Unit 6 includes, in part, the classification of Plumber I.
The definition of Plumber I is as follows:
3
the 	numerous 	classifications 	already 	existing 	throughout 	the
California 	State 	University 	system. 	The 	classifications 	describe
jobs 	by 	title, 	task 	and 	the 	level 	of 	skill 	required. 	(See 	HEERA
sec. 	3579 	and 	Unit 	Determination 	for 	Employees 	of 	the 	California
State 	University 	and 	Colleges 	(1981) 	PERB 	Decision 	No. 	176-H.)
The 	two 	units 	implicated 	herein 	are 	Unit 	5, 	identified 	as
Operations-Support 	Services, 	and 	Unit 	6, 	identified 	as 	Skilled
Crafts.
Unit 	5 	includes, 	in 	part, 	the 	classifications 	of
Groundsworker, 	Tree 	Trimmer 	I 	and 	Tree 	Trimmer 	II. 	Essentially,
Tree 	Trimmer 	I 	and 	Tree 	Trimmer 	II 	are 	distinguished 	from 	the
Groundsworker 	in 	that 	trimming 	trees 	constitutes 	the 	main
function 	of 	the 	first 	two 	positions, 	with 	only 	incidental 	grounds
maintenance 	work 	involved~ 	Tree 	Trimmer 	II 	is 	distinguished 	from
Tree 	Trimmer 	I 	in 	that 	it 	calls 	for 	a 	substantial 	portion 	of 	the
work 	to be 	performed 	at 	a 	high 	elevation 	and 	involves 	the 	use 	of
specialized 	climbing 	equipment.
There 	are 	approximately 	40 	employees 	in 	Unit 	5 	at 	CSUSD. 	Of
these, 	15 	are 	Groundsworkers. 	CSUSD has 	never 	had 	employees 	in
the 	classifications 	of 	Tree 	Trimmer 	I 	or 	II. 	There 	has 	never
existed 	a 	need 	for 	a 	permanent 	tree 	trimmer 	at 	the 	San 	Diego
campus 	due 	to 	the 	number, 	height 	and 	types 	of 	trees 	which 	grow
at 	CSUSD.
Unit 	6 	includes, 	in 	part, 	the 	classification 	of 	Plumber 	I.
The 	definition 	of 	Plumber 	I 	is 	as 	follows:
3

Under direction, does skilled plumbing work,
and related work, as required.
The incumbents of positions in this class
install, maintain, inspect, and repair
standard plumbing equipment concerned with
water, gas, oil, sewage, fire control, steam
and refrigeration systems; troubleshoot
plumbing systems; install and repair
pumps; maintain a plumbing shop; make rough
sketches and estimate labor and materials
for minor plumbing installations and repairs;
advise on selection, ordering, and storage
of plumbing supplies and equipment; consult
with other tradespeople; keep simple records
and make reports; instruct and lead unskilled
assistants.
From this job description, it is clear that no part of a
plumber's job includes the work of trimming trees. On the other
hand, Unit 5 contains at least three classifications which
involve tree trimming.
The parties stipulated at hearing that CSUSD assigned Unit 6
employees to perform tree trimming work on three separate
occasions in 1984. 	The first of these events occurred on
April 2, 1984, and involved a large branch of a eucalyptus tree
which fell on a parked car. It was removed by employees in an
emergency or "E" crew, which includes an equipment operator and
at least one skilled laborer; both positions belonging to
Unit 6. None of the work required the use of tree climbing
equipment.
The second event occurred on September 20, 1984, when a tree
fell on a major public street and partially obstructed traffic.
PLUMBER 	I	PLUMBER I
Under 	direction, 	does 	skilled 	plumbing 	work,
and 	related 	work, 	as 	required.
The 	incumbents 	of 	positions 	in 	this 	class
install, 	maintain, 	inspect, 	and 	repair
standard 	plumbing 	equipment 	concerned 	with
water, 	gas, 	oil, 	sewage, 	fire 	control, 	steam
and 	refrigeration 	systems; 	troubleshoot
plumbing 	systems; 	install 	and 	repair
pumps; 	maintain 	a 	plumbing 	shop; 	make 	rough
sketches 	and 	estimate 	labor 	and 	materials
for 	minor 	plumbing 	installations 	and 	repairs;
advise 	on 	selection, 	ordering, 	and 	storage
of 	plumbing 	supplies 	and 	equipment; 	consult
with 	other 	tradespeople; 	keep 	simple 	records
and 	make 	reports; 	instruct 	and 	lead 	unskilled
assistants.
From 	this 	job 	description, 	it 	is 	clear 	that 	no 	part 	of 	a
plumber's 	job 	includes 	the 	work 	of 	trimming 	trees. 	On 	the 	other
hand, 	Unit 	5 	contains 	at 	least 	three 	classifications 	which
involve 	tree 	trimming.
The 	parties 	stipulated 	at 	hearing 	that 	CSUSD 	assigned 	Unit 	6
employees 	to 	perform 	tree 	trimming 	work 	on 	three 	separate
occasions 	in 	1984. 	The 	first 	of 	these 	events 	occurred 	on
April 	2, 	1984, 	and 	involved 	a 	large 	branch 	of 	a 	eucalyptus 	tree
which 	fell 	on 	a 	parked 	car. 	It 	was 	removed 	by 	employees 	in 	an
emergency 	or 	"E" 	crew, 	which 	includes 	an 	equipment 	operator 	and
at 	least 	one 	skilled 	laborer; 	both 	positions 	belonging 	to
Unit 	6. 	None 	of 	the 	work 	required 	the 	use 	of 	tree 	climbing
equipment.
The 	second 	event 	occurred 	on 	September 	20, 	1984, 	when 	a 	tree
fell 	on 	a 	major 	public 	street 	and 	partially 	obstructed 	traffic.
4

It, thus, became incumbent upon CSUSD to remove the tree very
quickly. CSUSD dispatched the same E crew, and also the plumber.
In order to properly remove the tree in this emergency situation,
an individual experienced in the use of tree climbing equipment
was required. 	The plumber, who had once been a groundskeeper,
was the only employee at the San Diego campus who had been
trained in the use of such equipment. Thus, on this occasion
he was assigned to perform the necessary climbing required to
disengage the tree branches. The E crew then disposed of the
cut branches.
The third event occurred on October 4, 1984, when a storm
caused a large branch to split from a tree and fall, so that
it was hanging over a major walkway. Again, the plumber was
assigned to go up the tree and to make a cut in order to release
the limb so that the E crew could dispose of it.
The amount of tree trimming work the plumber performed on
the September 20 and October 4 occasions was no more than four
hours, or approximately two hours for each incident.
With respect to the past practice, in 1980 and 1981, when
CSUSD was required to remove some trees, the plumber performed
the necessary cutting. This work is estimated to have totaled
no more than 40 hours during each year. In addition, on other
occasions occurring both before and since 1980 and 1981, the
plumber performed, on a temporary and sporadic basis, a few
hours of "tree trimming" work in situations similar to those at
issue here -- where safety concerns were implicated. While the
It,
	thus,
	became
	incumbent
	upon
	CSUSD
	to
	remove
	the
	tree
	very
quickly.
	CSUSD
	dispatched 	the
	same
	E
	crew,
	and
	also
	the
	plumber.
In
	order
	to 	properly
	remove
	the
	tree
	in
	this
	emergency
	situation,
an
	individual
	experienced
	in 	the
	use
	of
	tree
	climbing
	equipment
was
	required.
	The
	plumber,
	who
	had 	once 	been
	a
	groundskeeper,
was
	the 	only
	employee
	at
	the
	San 	Diego
	campus
	who
	had
	been
trained
	in 	the
	use
	of
	such 	equipment.
	Thus,
	on
	this
	occasion
he
	was
	assigned
	to
	perform
	the 	necessary
	climbing
	required
	to
disengage 	the
	tree
	branches.
	The
	E
	crew
	then 	disposed 	of
	the
cut 	branches.
The
	third
	event 	occurred
	on
	October 	4,
	1984,
	when
	a
	storm
caused
	a
	large
	branch
	to
	split
	from
	a
	tree
	and
	fall,
	so
	that
it
	was
	hanging 	over
	a
	major
	walkway.
	Again,
	the
	plumber
	was
assigned 	to
	go 	up
	the
	tree
	and
	to
	make
	a
	cut 	in 	order 	to 	release
the
	limb 	so
	that
	the	
E	
crew
	could
	dispose 	of
	it.
The
	amount
	of
	tree
	trimming
	work
	the
	plumber 	performed 	on
the
	September
	20
	and
	October
	4
	occasions
	was
	no 	more
	than 	four
hours, 	or 	approximately
	two
	hours
	for
	each
	incident.
With
	respect 	to 	the
	past 	practice,
	in
	1980 	and 	1981,
	when
CSUSD
	was
	required 	to
	remove
	some
	trees,
	the
	plumber 	performed
the 	necessary
	cutting.
	This
	work
	is
	estimated 	to
	have
	totaled
no 	more
	than
	40
	hours 	during 	each
	year.
	In
	addition,
	on
	other
occasions 	occurring 	both 	before
	and
	since
	1980 	and 	1981,
	the
plumber 	performed,
	on
	a
	temporary 	and
	sporadic 	basis,
	a 	few
hours 	of 	"tree
	trimming"
	work
	in
	situations 	similar 	to 	those 	at
issue 	here
	--
	where
	safety 	concerns 	were
	implicated.
	While 	the
5

testimony indicates this practice went back as far as seven
years, it is not clear whether all of those occasions occurred
after he became a plumber, or while he was still a groundskeeper.
In any event, the practice of assigning him to such tasks on a
sporadic basis continued after he became a plumber, and after
CSEA was certified as the exclusive representative on
February 16, 1982.
The occasional tree trimming work at CSUSD campus of a
routine, nonemergency character is performed by employees
classified as Groundsworkers. Since it is accomplished standing
on the ground, it falls within one of the job functions spelled
out in the Groundsworker classifications. The testimony
indicates that there was no shortage of work to occupy the 14
Groundsworker positions. Indeed, their supervisor was, at the
time of hearing, seeking authority to add additional positions
because of workload needs.
PROPOSED DECISION
At the hearing before the ALJ, CSUSD moved to dismiss the
allegation relating to the first incident of April 2, 1984, on
the basis that the charge was not timely filed. In ruling on
CSUSD's motion, the ALJ found that CSUSD waived its right to
assert the untimeliness of the charge due to its failure to
raise it in advance of hearing. (See PERB Reg. 32644, subd.
(b) (6) and Walnut Valley Educators Association (1983 ) PERB
Decision No. 289.)
6
testimony 	indicates 	this 	practice 	went 	back 	as 	far 	as 	seven
years, 	it 	is 	not 	clear 	whether 	all 	of 	those 	occasions 	occurred
after 	he 	became 	a 	plumber, 	or 	while 	he 	was 	still 	a 	groundskeeper.
In 	any 	event, 	the 	practice 	of 	assigning 	him 	to 	such 	tasks 	on 	a
sporadic 	basis 	continued 	after 	he 	became 	a 	plumber, 	and 	after
CSEA was 	certified 	as 	the 	exclusive 	representative 	on
February 	16, 	1982.
The 	occasional 	tree 	trimming 	work 	at 	CSUSD 	campus 	of 	a
routine, 	nonemergency 	character 	is 	performed by 	employees
classified 	as 	Groundsworkers. 	Since 	it 	is 	accomplished 	standing
on 	the 	ground, 	it 	falls 	within 	one 	of 	the 	job 	functions 	spelled
out 	in 	the 	Groundsworker 	classifications. 	The 	testimony
indicates 	that 	there 	was 	no 	shortage 	of 	work 	to 	occupy 	the 	14
Groundsworker 	positions. 	Indeed, 	their 	supervisor 	was, 	at 	the
time 	of 	hearing, 	seeking 	authority 	to 	add 	additional 	positions
because 	of 	workload 	needs.
PROPOSED 	DECISION
At 	the 	hearing before 	the 	ALJ, 	CSUSD 	moved 	to 	dismiss 	the
allegation 	relating 	to 	the 	first 	incident 	of 	April 	2, 	1984, 	on
the 	basis 	that 	the 	charge 	was 	not 	timely 	filed. 	In 	ruling 	on
CSUSD's 	motion, 	the 	ALJ 	found 	that 	CSUSD waived 	its 	right 	to
assert 	the 	untimeliness 	of 	the 	charge 	due 	to 	its 	failure 	to
raise 	it 	in 	advance 	of 	hearing. 	(See 	PERB 	Reg. 	32644, 	subd.
(b)(6) 	and 	Walnut 	Valley 	Educators 	Association 	(1983) 	PERB
Decision 	No. 	289.)
6

Concerning the merits of the case, the ALJ cited PERB
precedent for the proposition that the decision to transfer
work out of the bargaining unit is negotiable if it impacts
upon a subject within the scope of representation. (Lincoln
Unified School District (1984) PERB Decision No. 465. ) With
respect to the incident of April 2, 1984, the ALJ found that
no unlawful transfer occurred inasmuch as the Unit 6 plumber
was not utilized, and there otherwise existed the potential for
overlap concerning the duties of the Unit 6 employees employed
on April 2, 1984 (an equipment operator and skilled laborer) ,
and the duties of Unit 5 employees (groundskeepers and tree
trimmers) .
As to the incidents of September 20 and October 4, 1984,
while the same potential for overlapping duties existed between
(Unit 6) equipment operators and skilled laborers and (Unit 5)
groundskeepers and tree trimmers, the assignment of the plumber
on these two occasions could not be justified on any such theory.
In finding a violation of HEERA, the ALJ rejected CSUSD's
argument that no work was transferred because employees in Unit 5
had never performed work as tree trimmers at the San Diego site.
The ALJ ultimately concluded that CSUSD was left with the option
of giving a Unit 5 employee the opportunity to learn the use of
tree climbing equipment, or, in the alternative, to meet and
negotiate with CSEA regarding its decision to transfer unit work
on an emergency basis.
7
Concerning 	the 	merits 	of 	the 	case, 	the 	ALJ 	cited 	PERB
precedent 	for 	the 	proposition 	that 	the 	decision 	to 	transfer
work 	out 	of 	the 	bargaining 	unit 	is 	negotiable 	if 	it 	impacts
upon 	a 	subject 	within 	the 	scope 	of 	representation. 	(Lincoln
Unified 	School 	District 	(1984) 	PERB 	Decision 	No. 	465.) 	With
respect 	to 	the 	incident 	of 	April 	2, 	1984, 	the 	ALJ 	found 	that
no 	unlawful 	transfer 	occurred 	inasmuch 	as 	the 	Unit 	6 	plumber
was 	not 	utilized, 	and 	there 	otherwise 	existed 	the 	potential 	for
overlap 	concerning 	the 	duties 	of 	the 	Unit 	6 	employees 	employed
on 	April 	2, 	1984 	(an 	equipment 	operator 	and 	skilled 	laborer),
and 	the 	duties 	of 	Unit 	5 	employees 	(groundskeepers 	and 	tree
trimmers).
As 	to 	the 	incidents 	of 	September 	20 	and 	October 	4, 	1984,
while 	the 	same 	potential 	for 	overlapping 	duties 	existed between
(Unit 	6) 	equipment 	operators 	and 	skilled 	laborers 	and 	(Unit 	5)
groundskeepers 	and 	tree 	trimmers, 	the 	assignment 	of 	the 	plumber
on 	these 	two 	occasions 	could 	not 	be 	justified 	on 	any 	such 	theory.
In 	finding 	a 	violation 	of 	HEERA, 	the 	ALJ 	rejected 	CSUSD's
argument 	that 	no 	work 	was 	transferred 	because 	employees 	in 	Unit 	5
had 	never 	performed 	work 	as 	tree 	trimmers 	at 	the 	San 	Diego 	site.
The 	ALJ 	ultimately 	concluded 	that 	CSUSD 	was 	left 	with 	the 	option
of 	giving 	a 	Unit 	5 	employee 	the 	opportunity 	to 	learn 	the 	use 	of
tree 	climbing 	equipment, 	or, 	in 	the 	alternative, 	to 	meet 	and
negotiate 	with 	CSEA. 	regarding 	its 	decision 	to 	transfer 	unit 	work
on 	an 	emergency basis.
7

DISCUSSION
Timeliness of Charge
The unfair in this matter was filed on November 26, 1984.
The first allegation in the charge dealt with conduct occurring
on April 2, 1984. Thus, the charge was filed more than six
months from the date of the occurrence of conduct allegedly
constituting an unfair. In applying PERB Regulation 32644,
subdivision (b) (6), the ALJ found the allegation to be timely on
the ground that CSUSD did not raise the defense of untimeliness
in its answer and thereby waived it. (Walnut Valley Educators
Association, supra. ) We now find we are without jurisdiction
to consider this allegation inasmuch as HEERA section 3563.2,
subdivision (a) proscribes the Board from issuing a complaint
concerning conduct occurring more than six months before the
charge was filed.
Preliminarily, it is important to recognize that this Board
has only such jurisdiction and powers as have been conferred on
it by statute. (Association For Retarded Citizens v. Department
of Developmental Services (1985 ) 38 Cal . 3d 384, 391-392 and
Fertig v. State Personnel Board (1969) 71 Cal. 2d 96, 103.)
Further, this Board acts in excess of its jurisdiction if it
acts in violation of the statutes conferring or limiting its
jurisdiction and powers. (Abelleira v. District Court of Appeal
(1941) 17 Cal. 2d 280, 288-291; Kennaley v. Superior Court (1954)
43 Cal . 2d 512, 514; and Graves v. Commission on Professional
Competence (1976 ) 63 Cal.App. 3d 970, 976, hg. den. ) Moreover,
8
DISCUSSION
Timeliness 	of 	Charge
The 	unfair 	in 	this 	matter 	was 	filed 	on 	November 	26, 	1984.
The 	first 	allegation 	in 	the 	charge 	dealt 	with 	conduct 	occurring
on 	April 	2, 	1984. 	Thus, 	the 	charge 	was 	filed 	more 	than 	six
months 	from 	the 	date 	of 	the 	occurrence 	of 	conduct 	allegedly
constituting 	an 	unfair. 	In 	applying 	PERB 	Regulation 	32644,
subdivision 	(b)(6), 	the 	ALJ 	found 	the 	allegation 	to be 	timely 	on
the 	ground 	that 	CSUSD 	did 	not 	raise 	the 	defense 	of 	untimeliness
in 	its 	answer 	and 	thereby 	waived 	it. 	(Walnut 	Valley 	Educators
Association, 	supra.) 	We 	now 	find 	we 	are 	without 	jurisdiction
to 	consider 	this 	allegation 	inasmuch 	as 	HEERA 	section 	3563.2,
subdivision 	(a) 	proscribes 	the 	Board 	from 	issuing 	a 	complaint
concerning 	conduct 	occurring 	more 	than 	six 	months 	before 	the
charge 	was 	filed.
Preliminarily, 	it 	is 	important 	to 	recognize 	that 	this 	Board
has 	only 	such 	jurisdiction and 	powers 	as 	have 	been 	conferred 	on
it 	by 	statute. 	(Association 	For 	Retarded 	Citizens 	v. 	Department
of 	Developmental 	Services 	(1985) 	38 	Cal.3d 	384, 	391-392 	and
Fertig 	v. 	State 	Personnel 	Board 	(1969) 	71 	Cal.2d 	96, 	103.)
Further, 	this 	Board 	acts 	in 	excess 	of 	its 	jurisdiction 	if 	it
acts 	in 	violation 	of 	the 	statutes 	conferring 	or 	limiting 	its
jurisdiction 	and 	powers. 	(Abelleira 	v. 	District 	Court 	of 	Appeal
(1941) 	17 	Cal.2d 	280, 	288-291; 	Kennaley 	v. 	Superior 	Court 	(1954)
43 	Cal.2d 	512, 	514; 	and 	Graves 	v. 	Commission 	on 	Professional
Competence 	(1976) 	63 	Cal.App.3d 	970, 	976, 	hg. 	den.) 	Moreover,
8

where the Board is without jurisdiction, it cannot acquire
jurisdiction by the parties' consent, agreement, stipulation or
acquiescence, nor by waiver or estoppel. (Schlyen v. Schlyen
(1954) 43 Cal. 2d 361, 375; Keithley v. Civil Service Board of
City of Oakland (1970) 11 Cal. App. 3d 443, 448, hg. den. ;
Summers v. Superior Court (1959 ) 53 Cal. 2d 295, 298; and
Sampsell v. Superior Court (1948) 32 Cal . 2d 763, 773, 776.)
Finally, the absence of jurisdiction cannot be overcome by the
established practices or customs of this Board, nor by Board
regulation. 	(J . R. Norton Co. v. Agricultural Labor Relations
Board (1979) 26 Cal. 3d 1, 29; Morris v. Williams (1967)
67 Cal. 2d 733, 737, 748; and California State Restaurant
Association v. Whitlow, Chief, Division of Industrial Welfare
(1976) 58 Cal . App. 3d 340, 347, hg. den. )
HEERA section 3563.2, subdivision (a) provides:
Any employee, employee organization, or
employer shall have the right to file an
unfair practice charge, except that the
board shall not issue a complaint in
respect of any charge based upon an alleged
unfair practice occurring more than six
months prior to the filing of the charge.
(Emphasis added. )
In construing a statute, we begin with the fundamental rule
that a court "should ascertain the intent of the Legislature so
as to effectuate the purpose of the law. " (Moyer v. Workmen's
Compensation Appeals Board (1973) 10 Cal . 3d 222, 230. ) Further,
it is a fundamental maxim of statutory construction that, where
no ambiguity exists, the intent of the Legislature in enacting
where 	the 	Board 	is 	without 	jurisdiction, 	it 	cannot 	acquire
jurisdiction 	by 	the 	parties' 	consent, 	agreement, 	stipulation 	or
acquiescence, 	nor 	by 	waiver 	or 	estoppel. 	(Schlyen 	v. 	Schlyen
(1954) 	43 	Cal.2d 	361, 	375; 	Keithley 	v. 	Civil 	Service 	Board 	of
City 	of 	Oakland 	(1970) 	11 	Cal.App.3d 	443, 	448, 	hg. 	den.;
Summers 	v. 	Superior 	Court 	(1959) 	53 	Cal.2d 	295, 	298; 	and
Sampsell 	v. 	Superior 	Court 	(1948) 	32 	Cal.2d 	763, 	773, 	776.)
Finally, 	the 	absence 	of 	jurisdiction 	cannot 	be 	overcome 	by 	the
established 	practices 	or 	customs 	of 	this 	Board, 	nor 	by 	Board
regulation. 	(J.R. 	Norton 	Co. 	v. 	Agricultural 	Labor 	Relations
Board 	(1979) 	26 	Cal.3d 	1, 	29; 	Morris 	v. 	Williams 	(1967)
67 	Cal.2d 	733, 	737, 	748; 	and 	California 	State 	Restaurant
Association 	v. 	Whitlow, 	Chief, 	Division 	of 	Industrial 	Welfare
(1976) 	58 	Cal.App.3d 	340, 	347, 	hg. 	den.)
HEERA 	section 	3563.2, 	subdivision 	{a) 	provides:
Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	issue 	a 	complaint 	in--
of 	any 	charge 	based 	upon 	an 	alleged
unfair 	practice 	occurring 	more 	than 	six
months 	prior 	to 	the 	filing 	of 	the 	charge.
(Emphasis 	added.)
In 	construing 	a 	statute, 	we 	begin 	with 	the 	fundamental 	rule
that 	a 	court 	"should 	ascertain 	the 	intent 	of 	the 	Legislature 	so
as 	to 	effectuate 	the 	purpose 	of 	the 	law." 	{Moyer 	v. 	Workmen's
Compensation 	Appeals 	Board 	(1973) 	10 	Cal.3d 	222, 	230.) 	Further,
it 	is 	a 	fundamental 	maxim 	of 	statutory 	construction 	that, 	where
no 	ambiguity 	exists, 	the 	intent 	of 	the 	Legislature 	in 	enacting
respect
9

a law is to be gleaned from the words of the statute itself,
according to the usual and ordinary import of the language
employed . 	Thus, where the language of a statute is clear and
unambiguous, case law holds that the construction intended by
the Legislature is obvious from the language used. 	( Noroian v.
Department of Administration, Public Employees' Retirement System
(1970 ) 11 Cal . App. 3d 651, 654, hg. den.; McQuillan v. Southern
Pacific Co. (1974) 40 Cal.App. 3d 802, 805-806; Hoyme v. Board
of Eduction (1980) 107 Cal . App. 3d 449; Great Lakes Properties,
Inc. v. City of El Segundo (1977) 19 Cal. 3d 152, 155; and
People v. Boyd (1979 ) 24 Cal. 3d 285, 294.)
The Legislature's intent to limit this Board's jurisdiction
to issue a complaint referring to conduct occurring more than
six months before the charge was filed is clearly expressed by
its choice of the mandatory language, "the Board shall not issue
a complaint. 	(HEERA, sec. 3563.2, subd. (a) . ) This
language is clearly directed to the Board and not to the
parties. In the recent PERB decision of Lake Elsinore School
District (1987) PERB Decision No. 646, this Board was required
to determine the effect of similar language in the Educational
Employment Relations Act (EERA), namely section 3541.5,
subdivision (a) , which precludes the Board's exercise of
jurisdiction where the alleged conduct is prohibited by the
parties ' contract and covered by its grievance procedures
providing for binding arbitration. More specifically,
10
a
	law
	is
	to
	be
	gleaned
	from
	the
	words
	of 	the
	statute
	itself,
according
	to
	the 	usual
	and
	ordinary
	import
	of 	the
	language
employed.
	Thus, 	where
	the
	language
	of
	a
	statute 	is
	clear
	and
unambiguous,
	case
	law
	holds
	that
	the
	construction
	intended
	by
the
	Legislature
	is
	obvious
	from
	the
	language
	used.
	(Noroian
	v.
Department
	of 	Administration, 	Public
	Employees'
	Retirement
	System
(1970) 	11
	Cal.App.3d
	651, 	654,
	hg.
	den.;
	McQuillan
	v.
	Southern
Pacific
	Co.
	(1974)
	40
	Cal.App.3d
	802,
	805-806;
	Hoyme
	v.
	Board
of
	Eduction
	(1980)
	107
	Cal.App.3d 	Great
	Lakes
	Properties,
Inc.
	v.
	City 	of
	El
	Segundo 	(1977)
	19
	Cal.3d
	152, 	155; 	and
People 	v.
	Boyd
	(1979)
	24
	Cal.3d
	285,
	294.)
The
	Legislature's 	intent
	to
	limit 	this
	Board's
	jurisdiction
to 	issue
	a
	complaint
	referring
	to
	conduct
	occurring
	more
	than
six
	months
	before 	the 	charge
	was
	filed 	is 	clearly
	expressed 	by
its
	choice 	of 	the
	mandatory
	language, 	"the
	Board
	shall
	not
	issue
a
	complaint
•••.
" 	(HEERA,
	sec.
	3563.2, 	subd.
	(a).)
	This
language
	is 	clearly 	directed 	to
	the
	Board 	and
	not
	to 	the
parties.
	In 	the
	recent
	PERB
	decision 	of
	Lake
	Elsinore
	School
District
	(1987)
	PERB
	Decision
	No.
	646,
	this
	Board
	was
	required
to
	determine 	the
	effect
	of
	similar
	language
	in 	the 	Educational
Employment
	Relations
	Act
	(EERA),
	namely
	section
	3541.5,
subdivision 	(a),
	which
	precludes 	the 	Board's 	exercise 	of
jurisdiction
	where
	the 	alleged
	conduct
	is
	prohibited
	by 	the
parties' 	contract
	and 	covered by
	its
	grievance 	procedures
providing 	for 	binding
	arbitration.
	More
	specifically,
10
449;

subdivision (a) of EERA section 3541.5 provides, in pertinent
part:
Any employee, employee organization or
employer shall have the right to file an
unfair practice charge, except that the
board shall not . 	. issue a complaint
against conduct also prohibited by the
provisions of the agreement between the
parties until the grievance machinery of
the agreement, if it exists and covers the
matter at issue, has been exhausted, either
by settlement or binding arbitration.
( Emphasis added. )
In interpreting EERA section 3541.5, subdivision (a), this
Board relied on the existence of the mandatory language of
"shall not" in reaching its conclusion that the provision was
jurisdictional. (See Fair v. Hernandez (1981) 116 cal.App. 3d
868, 878, hg. den.; Hogya v. Superior Court, San Diego County
(1977) 75 Cal.App. 3d 122, 133, hg. den. ; Garcia v. County Board
of Education (1981) 123 Cal . App. 3d 807, 811-813; and Tarquin v.
Commission on Professional Competence (1978) 84 Cal. App. 3d 251,
257-258, hg. den. ) 	Inasmuch as EERA section 3541.5, subdivision
(a ) contains language parallel to the time proscription of HEERA
section 3563.2, subdivision (a), this Board should apply the
same rules of statutory construction.
Further, the conclusion that the language of HEERA section
The Board's construction of EERA section 3541.5,
subdivision (a) was affirmed by the California Court of Appeal,
Fourth District, Division Two, in an unpublished decision issued
July 28, 1988. 	(See Elsinore Valley Education Association,
CTA/NEA v. PERB (Lake Elsinore School District), Case
No. E005078. )
11
subdivision 	(a) 	of 	EERA 	section 	3541.5 	provides, 	in 	pertinent
part:
Any 	employee, 	employee 	organization 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	•.• 	issue 	a 	complaTnt
against 	conduct 	also 	prohibited 	by 	the
provisions 	of 	the 	agreement 	between 	the
parties 	until 	the 	grievance 	machinery 	of
the 	agreement, 	if 	it 	exists 	and 	covers 	the
matter 	at 	issue, 	has 	been 	exhausted, 	either
by 	settlement 	or 	binding 	arbitration.
(Emphasis 	added.)
In 	interpreting 	EERA 	section 	3541.5, 	subdivision 	(a), 	this
Board 	relied 	on 	the 	existence 	of 	the 	mandatory 	language 	of
"shall 	not" 	in 	reaching 	its 	conclusion 	that 	the 	provision 	was
jurisdictional.3 	(See 	Fair 	v. 	Hernandez 	(1981) 	116 	Cal.App.3d
868, 	878, 	hg. 	den.; 	Hogya 	v. 	Superior 	Court, 	San 	Diego 	County
(1977) 	75 	Cal.App.3d 	122, 	133, 	hg. 	den.; 	Garcia 	v. 	County 	Board
of 	Education 	(1981) 	123 	Cal.App.3d 	807, 	811-813; 	and 	Tarquin 	v.
Commission 	on 	Professional 	Competence 	(1978) 	84 	Cal.App.3d 	251,
257-258, 	hg. 	den.) 	Inasmuch 	as 	EERA section 	3541.5, 	subdivision
(a) 	contains 	language 	parallel 	to 	the 	time 	proscription 	of 	HEERA
section 	3563.2, 	subdivision 	(a), 	this 	Board 	should 	apply 	the
same 	rules 	of 	statutory 	construction.
Further, 	the 	conclusion 	that 	the 	language 	of 	HEERA 	section
33The 	Board's 	construction 	of 	EERA 	section 	3541.5,
subdivision 	(a) 	was 	affirmed by 	the 	California 	Court 	of 	Appeal,
Fourth 	District, 	Division 	Two, 	in 	an 	unpublished 	decision 	issued
July 	28, 	1988. 	(See 	Elsinore 	Valley 	Education Association,
CTA/NEA 	v. 	PERB 	(Lake 	Elsinore 	School 	District), 	Case
No. 	E005078.
11

3563.2, subdivision (a) is mandatory and jurisdictional comports
with the Legislature's purpose in providing an administrative
forum for the prompt resolution of labor disputes. 	Unlike the
typical litigants involved in a civil lawsuit, parties in a
labor dispute must sustain an ongoing collective bargaining
relationship, despite pending unfair practice charges or
grievances. Extending the time during which an unfair practice
charge may be raised prolongs the threat of disruption of such
collective bargaining relationships, and is antithetical to
HEERA's foremost goal of promoting the improvement of harmonious
employer-employee relations. (HEERA, sec. 3560, subds. (a) and
(d).) Moreover, the legislative history of HEERA and its sister
Acts, EERA and the Ralph C. Dills Act (Dills ) , supports this
interpretation. Significantly, in the Final Report of the
Assembly Advisory Council on Public Employee Relations (1973),
at page 51, it is stated:
In the interest of eliminating "stale"
claims, the Board should be forbidden to
issue a complaint in respect of any charge
based upon an alleged unfair practice
occurring more than six months prior to
the filing of the charge,
(Emphasis added. )
Turning to our prior precedent, this Board has traditionally
treated HEERA section 3563.2, subdivision (a), and parallel
provisions of EERA and Dills, as a nonjurisdictional "statute
of limitations." In treating it as such, it is considered an
affirmative defense which can be waived if not timely asserted.
(See San Diegueto Union High School District (1982) PERB
12
3563.2, 	subdivision 	(a) 	is 	mandatory 	and 	jurisdictional 	comports
with 	the 	Legislature's 	purpose 	in 	providing 	an 	administrative
forum 	for 	the 	prompt 	resolution 	of 	labor 	disputes. 	Unlike 	the
typical 	litigants 	involved 	in 	a 	civil 	lawsuit, 	parties 	in 	a
labor 	dispute 	must 	sustain 	an 	ongoing 	collective 	bargaining
relationship, 	despite 	pending 	unfair 	practice 	charges 	or
grievances. 	Extending 	the 	time 	during 	which 	an 	unfair 	practice
charge 	may be 	raised 	prolongs 	the 	threat 	of 	disruption 	of 	such
collective 	bargaining 	relationships, 	and 	is 	antithetical 	to
HEERA's 	foremost 	goal 	of 	promoting 	the 	improvement 	of 	harmonious
employer-employee 	relations. 	(HEERA, 	sec. 	3560, 	subds. 	(a) 	and
(d).) 	Moreover, 	the 	legislative 	history 	of 	HEERA 	and 	its 	sister
Acts, 	EERA 	and 	the 	Ralph 	C. 	Dills 	Act 	(Dills), 	supports 	this
interpretation. 	Significantly, 	in 	the 	Final 	Report 	of 	the
Assembly 	Advisory 	Council 	on 	Public 	Employee 	Relations 	(1973),
at 	page 	51, 	it 	is 	stated:
In 	the 	interest 	of 	eliminating 	"stale"
claims, 	the 	Board 	should 	be 	forbidden 	to
issue 	a 	complaint 	in 	respect 	of 	any 	charge
based 	upon 	an 	alleged 	unfair 	practice
occurring 	more 	than 	six 	months 	prior 	to
the 	filing 	of 	the 	charge, 	•••
(Emphasis 	added.)
Turning 	to 	our 	prior 	precedent, 	this 	Board 	has 	traditionally
treated 	HEERA 	section 	3563.2, 	subdivision 	(a), 	and 	parallel
provisions 	of 	EERA 	and 	Dills, 	as 	a 	nonjurisdictional 	"statute
of 	limitations." 	In 	treating 	it 	as 	such, 	it 	is 	considered 	an
affirmative 	defense 	which 	can be 	waived 	if 	not 	timely 	asserted.
{See 	San 	Dieguito 	Union 	High 	School 	District 	(1982) 	PERB
12

Decision No. 194; Walnut Valley Educators Association, supra,
PERB Decision No. 289; California State University, Hayward
(1987 ) PERB Decision No. 607-H; and PERB Reg. 32644 (b) (6).)
For example, in Walnut Valley Educators Association, the Board
reasoned:
It is a well-settled principle of California
law that the statute of limitations is a
personal privilege which must be
affirmatively invoked by appropriate
pleading or it is waived. 3 Witkin
Cal . Procedure (2d. ed) Procedure section
939. The defense must be asserted either
by demurrer or affirmatively in the answer.
Stafford v. Russell (1953) 117 CA 2d 319.
Thus, under California law, the District
waived this defense by failing to raise it
in a timely fashion. Travelers Indemnity
Co. v. Bell (1963) 213 Cal.App. 2d 541;
Mitchell v. County Sanitation District
(1957) 150 Cal .App. 2d 366. 	PERB regulation
32640(f) is in accord with California civil
procedure.
We disagree with the Board's rationale in Walnut Valley. 	To
the extent that it treats EERA section 3541.5, subdivision (a) ,
and parallel provisions of HEERA and Dills as an affirmative
defense subject to a party's waiver, it is inconsistent with the
jurisdictional proscriptions expressed in those provisions.
Although they do not contain identical language, a
comparison may, nonetheless, be made between section 3563.2,
subdivision (a) of HEERA and section 10, subdivision (b) of
the National Labor Relations Act. PERB, however, is not bound
by the National Labor Relations Board (NLRB ) precedent in its
interpretation of HEERA. See Los Angeles Unified School
District (1976 ) EERB Decision No. 5, where the Board held
that it was not bound by NLRB decisions in cases arising under
the EERA. In the present case, the Board has reviewed the
13
Decision
	No.
	194;
	Walnut
	Valley 	Educators
	Association, 	supra,
PERB
	Decision
	No.
	289;
	California 	State
	University,
	Hayward
(1987)
	PERB
	Decision
	No.
	607-H;
	and
	PERB
	Reg.
	32644(b)(6).)
For 	example,
	in
	Walnut
	Valley
	Educators
	Association,
	the
	Board
reasoned:
It
	is
	a
	well-settled 	principle
	of
	California
law
	that
	the
	statute
	of
	limitations 	is
	a
personal
	privilege
	which 	must
	be
affirmatively
	invoked by
	appropriatepleading 	or
	it
	is
	waived.
	3
	Witkin
Cal.Procedure
	(2d. 	ed)
	Procedure
	section
939.
	The
	defense
	must
	be
	asserted
	either
by 	demurrer
	or
	affirmatively
	in 	the
	answer.
Stafford
	v.
	Russell
	(1953)
	117
	CA
	2d
	319.Thus,
	under
	California
	law,
	the
	District
waived
	this
	defense
	by
	failing
	to
	raise
	it
in
	a
	timely 	fashion. 	Travelers
	Indemnity
Co.
	v. 	Bell
	(1963)
	213
	Cal.App.2d
	541;
Mitchell
	v.
	County
	Sanitation
	District
(1957)
	150
	Cal.App.2d 	366.
	PERB
	regulation
32640(f)
	is
	in
	accord 	with
	California
	civil
procedure.
We
	disagree
	with
	the 	Board's
	rationale
	in
	Walnut
	Valley.
	To
the 	extent
	that
	it
	treats
	EERA
	section
	3541.5,
	subdivision
	(a),
and
	parallel
	provisions
	of
	HEERA
	and
	Dills
	as
	an
	affirmative
defense
	subject 	to
	a
	party's
	waiver,
	it
	is
	inconsistent
	with 	the
jurisdictional 	proscriptions
	expressed 	in 	those
	provisions.
4
4
4Although
	they
	do
	not 	contain
	identical
	language,
	a
comparison
	may,
	nonetheless,
	be
	made
	between
	section
	3563.2,
subdivision
	(a}
	of
	HEERA
	and
	section
	10,
	subdivision
	(b)
	ofthe 	National
	Labor
	Relations 	Act.
	PERB,
	however,
	is
	not 	bound
by 	the 	National
	Labor
	Relations
	Board
	(NLRB)
	precedent 	in
	its
interpretation 	of
	HEERA.
	See 	Los 	Angeles 	Unified 	School
District
	(1976)
	EERB
	Decision
	No.
	5, 	where
	the
	Board
	held
that
	it
	was
	not
	bound by
	NLRB
	decisions 	in 	cases 	arising
	under
the
	EERA.
	In 	the 	present 	case, 	the
	Board 	has 	reviewed 	the
13

Thus, we now find it appropriate to overrule Walnut Valley and
its progeny insofar as they hold that the six month time
limitations expressed in EERA, HEERA and Dills are
non jurisdictional.
In finding that HEERA section 3563.2, subdivision (a)
constitutes a jurisdictional bar to charges filed outside
its prescribed six month time period, it should further be
recognized that our regulations are not to be interpreted
or applied in such a manner as to override this express
jurisdictional barrier. In this regard, the application of
PERB Regulations 32644, subdivision (b) and 32646 is at issue.
PERB Regulation 32644, subdivision (b) states, in pertinent
part:
The answer shall 	contain .
(6) A statement of any affirmative defense.
PERB Regulation 32646 states, in pertinent part:
If the respondent believes that issuance of
the complaint is inappropriate . . . because
the charge is untimely, the respondent shall
assert such a defense in its answer and
shall move to dismiss the complaint,
While procedurally it is appropriate to have the respondent
call to the Board's attention that the charge was not timely
statutory language and determined that the six-month limitation
is jurisdictional. 	This approach is consistent with the Board's
decision in Lake Elsinore School District (1987) PERB Decision
No. 646.
14
Thus,
	we 	now
	find
	it
	appropriate 	to 	overrule
	Walnut
	Valley
	and
its
	progeny
	insofar
	as
	they hold
	that
	the
	six
	month
	time
limitations
	expressed
	in
	EERA,
	HEERA
	and
	Dills
	are
nonjurisdictional.
statutory
	language 	and
	determined
	that 	the 	six-month
	limitation
is 	jurisdictional.
	This 	approach
	is 	consistent
	with 	the 	Board's
decision 	in
	Lake
	Elsinore
	School
	District
	(1987)
	PERB
	Decision
No.
	646.
In
	finding
	that
	HEERA
	section
	3563.2,
	subdivision
	(a)
constitutes
	a
	jurisdictional
	bar
	to
	charges
	filed
	outside
its
	prescribed
	six
	month
	time
	period,
	it
	should
	further
	be
recognized
	that
	our
	regulations 	are
	not
	to
	be
	interpreted
or 	applied 	in
	such
	a
	manner
	as
	to 	override
	this
	express
jurisdictional 	barrier.
	In
	this
	regard, 	the
	application 	of
PERB
	Regulations
	32644,
	subdivision
	(b) 	and
	32646
	is 	at 	issue.
PERB
	Regulation
	32644,
	subdivision
	(b)
	states,
	in
	pertinent
part:
The
	answer
	shall
	• 	• 	•
	contain	
~	
• 	• 	:
. 	. . 	. 	. 	. 	. 	. . . 	. 	. 	. 	. 	. 	.
(6)
	A
	statement 	of
	any
	affirmative
	defense.
PERB
	Regulation
	32646
	states,
	in
	pertinent 	part:
If
	the 	respondent
	believes 	that
	issuance 	of
the 	complaint
	is
	inappropriate
	•••
	because
the 	charge
	is
	untimely, 	the 	respondent
	shall
assert
	such
	a
	defense 	in
	its
	answer 	and
shall
	move
	to 	dismiss 	the 	complaint,
	.•.
While
	procedurally
	it
	is 	appropriate 	to
	have
	the 	respondent
call 	to 	the 	Board's
	attention 	that 	the 	charge
	was
	not 	timely
14

filed, its failure to do so cannot be used as a basis for
expanding this Board's jurisdiction. Accordingly, we disapprove
of any application of the foregoing regulations in such a manner
as to make the untimeliness of an unfair practice charge an
affirmative defense subject to a party's waiver.
For the foregoing reasons, we dismiss the allegation that,
on April 2, 1984, CSUSD transferred work out of the unit, on the
basis that PERB is without jurisdiction to entertain it.
Transfer of Unit Work
The ALJ's decision concluded that CSUSD, by utilizing the
services of the plumber on September 20 and October 4, 1984,
unilaterally transferred work belonging to Unit 5 employees.
We disagree with the ALJ's initial assumption that a transfer
in fact occurred. An unlawful transfer occurs when an employer
unilaterally assigns work formerly done by employees in one
bargaining unit to its employees in a different unit. (Rialto
Unified School District (1982) PERB Decision No. 209 and
Solano County Community College District (1982) PERB Decision
No. 219. ) It cannot be overlooked, however, that the character
and magnitude of the alleged transfers at issue herein are
considerably different from those which this Board has declared
Even assuming arguendo, that HEERA section 3563.2,
subdivision (a) does not provide a jurisdictional bar to the
allegation concerning the incident of April 2, 1984, we would
still affirm the ALJ's conclusion that no unlawful transfer of
bargaining unit work occurred.
15
filed, 	its 	failure 	to 	do 	so 	cannot 	be 	used 	as 	a 	basis 	for
expanding 	this 	Board's 	jurisdiction. 	Accordingly, 	we 	disapprove
of 	any 	application 	of 	the 	foregoing 	regulations 	in 	such 	a 	manner
as 	to 	make 	the 	untimeliness 	of 	an 	unfair 	practice 	charge 	an
affirmative 	defense 	subject 	to 	a 	party's 	waiver.
For 	the 	foregoing 	reasons, 	we 	dismiss 	the 	allegation 	that,
on 	April 	2, 	1984, 	CSUSD 	transferred 	work 	out 	of 	the 	unit, 	on 	the
basis 	that 	PERB 	is 	without 	jurisdiction 	to 	entertain 	it. 5
Transfer 	of 	Unit 	Work
The 	ALJ's 	decision 	concluded 	that 	CSUSD, 	by 	utilizing 	the
services 	of 	the 	plumber 	on 	September 	20 	and 	October 	4, 	1984,
unilaterally 	transferred 	work 	belonging 	to 	Unit 	5 	employees.
We 	disagree 	with 	the 	ALJ's 	initial 	assumption 	that 	a 	transfer
in 	fact 	occurred. 	An 	unlawful 	transfer 	occurs 	when 	an 	employer
unilaterally 	assigns 	work 	formerly 	done 	by 	employees 	in 	one
bargaining 	unit 	to 	its 	employees 	in 	a 	different 	unit. 	(Rialto
Unified 	School 	District 	(1982) 	PERB 	Decision 	No. 	209 	and
Solano 	County 	Community 	College 	District 	(1982) 	PERB 	Decision
No. 	219.) 	It 	cannot be 	overlooked, 	however, 	that 	the 	character
and 	magnitude 	of 	the 	alleged 	transfers 	at 	issue 	herein 	are
considerably 	different 	from 	those 	which 	this 	Board has 	declared
5 	assuming 	arguendo, 	that 	HEERA 	section 	3563.2,
subdivision 	(a) 	does 	not 	provide 	a 	jurisdictional 	bar 	to 	the
allegation 	concerning 	the 	incident 	of 	April 	2, 	1984, 	we 	would
still 	affirm 	the 	ALJ's 	conclusion 	that 	no 	unlawful 	transfer 	of
bargaining 	unit 	work 	occurred.
Even
15

unlawful. (Cf. Rialto Unified School District, supra; Solano
County Community College District, supra; San Antonio Community
College District (1983 ) PERB Decision No. 334; Goleta Union
School District (1984) PERB Decision No. 391.)
In the instant case, CSUSD did not eliminate a position
in Unit 5, or otherwise transfer to a Unit 6 classification a
substantial or even meaningful share of duties belonging to a
Unit 5 position. On two occasions, and in response to
emergencies involving hazardous conditions, it merely assigned a
plumber to go aloft and extricate a tree limb -- a task that no
Unit 5 employee at the San Diego campus was trained to perform,
and one in which the plumber had past experience. On each of the
two occasions (September 20 and October 4, 1984), the plumber was
involved in tree trimming functions for a very short period of
time (e.g., for approximately two hours on each occasion) .
Further, the ALJ noted in his findings of fact that the
record showed a longstanding past practice of CSUSD of assigning
the plumber, on a sporadic basis, the task of removing tree
limbs. Daniel Taylor, the Director of Physical Plant for CSUSD,
testified that the plumber was used in the past whenever there
was a safety issue in question. His testimony was corroborated
by that of Ron Tessada, employed by CSUSD as a supervisor of
grounds and landscape activities since approximately 1978.
CSEA put on no evidence rebutting the existence of the past
practice of utilizing the plumber to go aloft for the purpose of
16
unlawful.
	(Cf.
	Rialto
	Unified
	School
	District,
	supra;
	Solano
County
	Community
	College
	District,
	supra;
	San
Antonio
	Community
College
	District
	(1983)
	PERB
	Decision
	No.
	334;
	Goleta
	Union
School
	District
	(1984)
	PERB
	Decision
	No.
	391.)
In
	the
	instant
	case,
	CSUSD
	did 	not
	eliminate
	a
	position
in
	Unit 	5, 	or
	otherwise
	transfer
	to
	a
	Unit
	6
	classification
	a
substantial
	or
	even
	meaningful
	share 	of
	duties
	belonging
	to
	a
Unit
	5
	position.
	On
	two
	occasions,
	and
	in 	response
	to
emergencies
	involving
	hazardous
	conditions,
	it
	merely
	assigned
	a
plumber
	to
	go
	aloft
	and
	extricate
	a
	tree
	limb	
--	
a
	task
	that
	no
Unit
	5
	employee
	at
	the
	San
	Diego
	campus
	was
	trained 	to
	perform,
and 	one
	in
	which
	the
	plumber 	had
	past
	experience.
	On
	each
	of
	the
two
	occasions
	(September
	20
	and
	October 	4,
	1984), 	the
	plumber
	was
involved 	in
	tree
	trimming
	functions 	for
	a
	very
	short 	period 	of
time
	(e.g.,
	for 	approximately
	two
	hours
	on
	each
	occasion).
Further, 	the
	ALJ
	noted 	in
	his
	findings 	of
	fact 	that
	the
record
	showed
	a
	longstanding
	past 	practice
	of
	CSUSD
	of
	assigning
the
	plumber,
	on
	a
	sporadic
	basis,
	the 	task 	of
	removing
	tree
limbs.
	Daniel
	Taylor, 	the 	Director 	of 	Physical 	Plant 	for
	CSUSD,
testified
	that
	the
	plumber
	was
	used
	in 	the 	past
	whenever
	there
was 	a
	safety 	issue 	in 	question.
	His
	testimony
	was
	corroborated
by
	that
	of
	Ron
	Tessada,
	employed by
	CSUSD
	as
	a
	supervisor 	of
grounds 	and
	landscape
	activities
	since 	approximately 	1978.
CSEA
	put
	on 	no
	evidence 	rebutting 	the 	existence 	of 	the 	past
practice 	of
	utilizing
	the
	plumber
	to
	go
	aloft
	for 	the 	purpose 	of
16

cutting limbs when potentially hazardous conditions prevailed.
We find that the ALJ erred by his failure to attach any legal
significance to CSUSD's past practice -- one in which CSEA
apparently acquiesced -- of using the plumber to cut tree
branches in response to emergency conditions.
In Eureka City School District, supra, the Board held that
where unit and nonunit employees have previously performed
work involving an overlapping of duties, the employer does not
unlawfully transfer work out of the unit merely by increasing
the quantity of work performed by nonunit employees.
Significantly, the Board stated:
In our view, in order to prevail on a
unilateral transfer of work theory, the
charging party must establish, as a
threshold matter, that duties were, in fact,
transferred out of the unit; that is, that
unit employees ceased to perform work which
they had previously performed or that
nonunit employees began to perform duties
previously performed exclusively by unit
employees. However, where, as here, unit
and nonunit employees have traditionally had
overlapping duties, an employer does not
violate its duty to negotiate in good faith
merely by increasing the quantity of work
which nonunit employees perform and
decreasing the quantity of work which unit
employees perform.
(P. 15. )
In the instant case, Unit 5 employees at the San Diego
campus did not cease to perform work which they had previously
performed. Even more significantly, in light of the past
practice of the plumber's removal of tree limbs when potentially
hazardous conditions prevailed, Unit 6 employees did not assume
17
cutting 	limbs 	when 	potentially hazardous 	conditions 	prevailed.
We 	find 	that 	the 	ALJ 	erred by his 	failure 	to 	attach 	any 	legal
significance 	to 	CSUSD's 	past 	practice 	-- 	one 	in 	which 	CSEA
apparently 	acquiesced 	-- 	of 	using 	the 	plumber 	to 	cut 	tree
branches 	in 	response 	to 	emergency 	conditions.
In 	Eureka 	City 	School 	District, 	supra, 	the 	Board 	held 	that
where 	unit 	and 	nonunit 	employees 	have 	previously 	performed
work 	involving 	an 	overlapping 	of 	duties, 	the 	employer 	does 	not
unlawfully 	transfer 	work 	out 	of 	the 	unit 	merely by 	increasing
the 	quantity 	of 	work 	performed by 	nonunit 	employees.
Significantly, 	the 	Board 	stated:
In 	our 	view, 	in 	order 	to 	prevail 	on 	a
unilateral 	transfer 	of 	work 	theory, 	the
charging 	party must 	establish, 	as 	a
threshold 	matter, 	that 	duties 	were, 	in 	fact,
transferred 	out 	of 	the 	unit; 	that 	is, 	that
unit 	employees 	ceased 	to 	perform 	work 	which
they had 	previously performed 	or 	that
nonunit 	employees 	began 	to 	perform 	duties
previously performed 	exclusively by 	unit
employees. 	However, 	where, 	as 	here, 	unit
and 	nonunit 	employees 	have 	traditionally had
overlapping 	duties, 	an 	employer 	does 	not
violate 	its 	duty 	to 	negotiate 	in 	good 	faith
merely by 	increasing 	the 	quantity 	of 	work
which 	nonunit 	employees 	perform 	and
decreasing 	the 	quantity 	of 	work 	which 	unit
employees 	perform.
(P. 	15.)
In 	the 	instant 	case, 	Unit 	5 	employees 	at 	the 	San 	Diego
campus 	did 	not 	cease 	to 	perform 	work 	which 	they had 	previously
performed. 	Even 	more 	significantly, 	in 	light 	of 	the 	past
practice 	of 	the 	plumber's 	removal 	of 	tree 	limbs 	when 	potentially
hazardous 	conditions 	prevailed, 	Unit 	6 	employees 	did 	not 	assume
17

the performance of duties previously performed exclusively by
Unit 5 employees. Although the Plumber I job description does
not specify tree trimming, the record revealed a past practice
of utilizing the plumber whenever exigent circumstances required
the immediate use of the plumber's specialized tree climbing
skills. Thus, there was, in this limited sense, an overlapping
of duties. We would find, on these facts, that no transfer of
unit work occurred. (See also State of California (Department
of Developmental Service) (1985 ) PERB Decision No. 484-S. )
ORDER
For the foregoing reasons, the unfair practice charges in
Case No. LA-CE-119-H are hereby DISMISSED.
Chairperson Hesse and Members Craib and Shank joined in this
Decision.
18
the
	performance
	of
	duties
	previously
	performed
	exclusively
	by
Unit
	5
	employees. 	Although
	the
	Plumber
	I
	job
	description
	does
not
	specify
	tree
	trimming,
	the 	record 	revealed
	a
	past
	practice
of
	utilizing
	the
	plumber
	whenever
	exigent
	circumstances
	required
the
	immediate
	use
	of 	the 	plumber's
	specialized
	tree
	climbing
skills.
	Thus,
	there
	was,
	in
	this
	limited
	sense,
	an
	overlapping
of
	duties.
	We
	would
	find,
	on
	these
	facts, 	that
	no
	transfer
	of
unit
	work
	occurred.
	(See
	also 	State
	of
	California
	(Department
of
	Developmental
	Service)
	(1985)
	PERB
	Decision
	No.
	484-S.)
ORDER
For
	the 	foregoing 	reasons, 	the
	unfair 	practice
	charges
	in
Case
	No. 	LA-CE-119-H
	are
	hereby
	DISMISSED.
Chairperson
	Hesse 	and
	Members
	Craib
	and
	Shank
	joined 	in
	this
Decision.
18