San Francisco Community College District * * * ANNULLED by UPE v. PERB (1989) 213 Cal.App.3d 1119 (PERB 0688EA)

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
Request 	for 	Reconsideration
PERB Decision No. 	688
PERB Decision No. 	688a
October 18, 1988
Appearances; 	Ronald A. 	Glick 	for 	the 	San 	Francisco Community College
District; 	Van Bourg, 	Weinberg, 	Roger 	& 	Rosenfeld by Stewart Weinberg 	for
SEIU, 	Local 790.
Before Hesse, 	Chairperson; 	Porter and Shank, 	Members.
DECISION
SHANK, 	Member: 	United Public Employees, 	SEIU, 	Local 	790,
(Charging 	Party) 	exclusive 	representative 	for 	classified
employees, 	requests 	reconsideration of PERB Decision No. 	688,
issued June 27, 	1988. 	In that decision, 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	affirmed, 	for different
reasons, 	a proposed decision of 	a PERB 	administrative 	law 	judge
(ALJ) 	dismissing 	the 	unfair 	labor practice 	charge on 	the 	ground
that 	the 	subject 	related 	to employees 	in 	their 	capacity as
certificated 	employees 	and 	was 	therefore beyond 	the 	scope 	of
representation. 	The 	Board dismissed 	on 	the 	ground 	that 	the
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San Francisco Community College 	District 	(District) 	is 	not 	a
public 	school 	employer 	of 	classified 	employees 	within 	the
meaning of 	section 	3540.l(k) 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA).1
DISCUSSION
PERB Regulation 32410(a)2 states, 	in pertinent part:
Any party 	to a decision of 	the 	Board 	itself
may, 	because of extraordinary circumstances,
file 	a 	request 	to 	reconsider 	the 	decision
. 	. 	. 	The grounds 	for requesting
reconsideration 	are 	limited 	to 	claims 	that
the 	decision of 	the 	Board 	itself 	contains
prejudicial 	errors of 	fact, 	or 	newly
discovered 	evidence 	or 	law which 	was 	not
previously 	available 	and 	could 	not 	have been
discovered 	with 	the 	exercise 	of 	reasonable
diligence.
In 	its 	request 	for 	reconsideration, 	Charging Party asserts
that 	the 	Board's 	decision 	contains 	prejudicial 	errors 	of 	fact
and 	that 	the 	Board has 	violated principles 	of 	appellate
adjudication. 	The 	Board 	rejects 	such 	contentions 	for 	the
following 	reasons:
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 3540, 	et
seq., 	and 	is administered by PERB. 	Unless 	otherwise 	indicated,
all 	statutory 	references 	in 	this 	decision 	are 	to 	the 	Government
Code. 	Section 3540.l(k) 	provides:
As 	used 	in 	this 	chapter:
(k) 	"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.
2pERB 	Regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 31001 et seq.
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Charging 	Party 	claims 	that 	the 	Board 	erred 	in 	finding 	that
all 	of 	the 	classified 	employees' 	benefits 	are provided 	through
the 	City and 	County of San Francisco. 	This 	is 	a
mischaracterization. 	In 	connection with 	determining who 	is 	the
employer 	of 	the 	classified personnel, 	the 	Board 	found 	simply
that 	the 	City 	and 	County 	of 	San 	Francisco 	exercises 	control
over 	the wages, 	hours, 	benefits 	and other 	terms 	and conditions
of 	employment 	for 	the 	classified personnel.
The 	Charging 	Party also 	contends 	that 	the 	Board 	erred
in 	finding 	that 	no 	Education Code benefits 	are 	available 	to
classified employees of 	the 	District. 	Again, 	in determining
the 	employer 	of 	the 	classified personnel, 	the 	Board 	found 	that
under 	the provisions 	of 	Education Code 	section 88000, 	the
classified personnel 	do 	not 	receive 	their 	benefits 	under 	the
Education 	Code.
Finally, 	Charging Party asserts 	that 	the 	District was 	not
entitled 	to 	file 	exceptions 	to 	the ALJ's 	proposed decision.
We 	disagree. 	The 	District 	clearly had 	the 	right 	to 	raise
exceptions to the proposed decision 	(PERB Reg. 	32300). 	PERB
had 	the 	duty 	to 	consider 	the 	threshold 	jurisdictional 	issue
raised by the 	District, 	whether 	the 	District 	is 	a public 	school
employer 	of 	classified 	employees 	within 	the 	meaning 	of 	EERA
section 3540.l(k), 	which 	the ALJ declined 	to resolve before
ruling 	on 	the 	merits. 	We 	note 	that 	the 	Charging 	Party 	failed
to 	file 	any 	response 	in opposition 	to 	the 	District's
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exceptions; 	thus, 	Charging Party has 	raised 	these 	arguments 	for
the 	first 	time 	in connection with 	its 	request 	for
reconsideration.
ORDER
Having 	found no merit 	in 	Charging 	Party's 	claims 	that 	the
Board's 	decision 	contains 	prejudicial 	errors 	of 	fact 	or 	that
the 	District 	could 	not 	file 	exceptions 	to 	the proposed
decision, 	we 	conclude 	that 	the 	request 	for 	reconsideration
should be 	denied.
Chairperson Hesse 	and Member 	Porter 	joined 	in 	this 	Decision.
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