San Francisco Community College District (Barnes) (PERB A153E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
THOMAS
	BARNES,
Charging
	Party,
v.
SAN
	FRANCISCO
	COMMUNITY
	COLLEGE
DISTRICT,
Respondent.
)
)
)
)
)
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)
Case
	No.
	SF-CE-884
Interlocutory
	Appeal
PERB
	Order
	No. 	Ad-153
May
	1,
	1986
____________________
)
Appearance:	
Ronald
	A.
	Glick
	for
	San
	Francisco
	community
College
	District.
Before
	Hesse,
	Chairperson; 	Morgenstern,
	Burt,
	Porter
	and
	Craib,
Members.
DECISION
BURT,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERE
	or
	Board)
	on
	an
	interlocutory
	appeal
filed
	by
	the
	San
	Francisco
	Community
	College
	District
(District)
	and
	certified
	to 	the
	Board
	by
	an
	administrative
	law
Judge
	(ALJ)
	pursuant 	to
	PERB
	Regulation
	32200.
1	. 	. 	. 	.
The
	D1str1ct
lPERB
	Regulations 	are 	codified
	at 	California
Administrative
	Code,
	title
	B,
	section
	31001
	et
	seq.
Regulation
	32200
	states:
A
	party
	may
	object 	to
	a
	Board
	agent's
interlocutory 	order 	or 	ruling
	on
	a
	motion
and
	request
	a
	ruling
	by
	the 	Board
	itself.
The
	request 	shall
	be
	in 	writing 	to 	the 	Board
agent 	and 	a
	copy
	shall
	be
	sent 	to 	the 	Board
itself.
	Service 	and 	proof 	of 	service

excepts 	to 	the
	ALJ 1 s
	proposed
	interlocutory
	order
	denying
	the
District's
	motion
	to
	dismiss
	an
	unfair 	practice
	charge
	filed
	by
Thomas
	Barnes 	(Charging
	Party), 	alleging 	discrimination
	and
retaliation
	for
	union
	activities
	in
	violation
	of
	the
Educational
	Employment
	Relations
	Act
	{EERA
	or
	Act)
	section
3543.S(a).
2
Barnes
	initially
	filed
	his
	charge
	on March
	16, 	1984,
alleging
	unlawful
	discrimination.
	The
	regional
	attorney
	issued
pursuant 	to
	Section
	32140
	are 	required.
	The
Board
	agent
	may
	refuse
	the
	request,
	or
	may
join 	in
	the
	request
	and
	certify
	the 	matter
to 	the
	Board.
	The
	Board
	itself
	will
	not
accept 	the 	request 	unless 	the
	Board
	agent
joins 	in
	the 	request.
	The
	Board
	agent
	may
join 	in
	the
	request
	only
	where
	all
	of
	the
following 	apply:
(a)
	The
	issue
	involved
	is
	one
	of
	law;
(b)
	The
	issue
	involved
	is
	controlling
	in
the 	case;
(c)
	An
	immediate
	appeal
	will 	materially
advance
	the
	resolution
	of
	the 	case.
2The
	EERA
	is
	codified
	at
	Government
	Code
	section
	3540
et
	seq. 	All 	references 	are 	to 	the
	Government
	Code
	unless
otherwise 	noted.
Section
	3543.5
	provides, 	in 	relevant 	part:
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,
	or 	coerce
employees 	because 	of
	their 	exercise 	of
rights 	guaranteed
	by
	this 	chapter.
2

a
	complaint
	on
	the
	charge
	on
	July
	11,
	1984
	and,
	on
September 	10,
	1984,
	Barnes
	amended
	his
	charge 	to
	further 	allege
a
	retaliatory
	discharge
	in
	violation
	of
	EERA
	section
	3543.S(a).
On
	August 	2, 	1984,
	the
	District
	answered
	the
	complaint,
denied
	that
	it
	had
	committed 	an
	unfair 	practice,
	and
	moved
	to
dismiss 	the
	complaint
	on
	the
	grounds
	that
	PERB
	lacked
jurisdiction
	because
	classified
	employees
	of
	the
	District
	had
been
	legislatively
	excluded
	from
	coverage
	by
	EERA.
On
	October
	30, 	1984,
	the
	ALJ
	held
	a
	hearing
	on
	the
jurisdictional
	question 	only.
	On
	December
	28, 	1984,
	the
	ALJ
issued 	his 	decision 	ruling
	that
	PERB
	has
	jurisdiction
	over 	the
complaint. 	Accordingly,
	he
	denied 	the
	District
1 s
	motion
	to
dismiss.
	On
	January
	11, 	1985,
	the
	District
	requested
	that
	the
question
	of
	PERB 1 s
	jurisdiction
	be
	submitted 	to 	the
	Board 	as
	an
interlocutory
	appeal
	and,
	on
	January
	17, 	1985,
	the
	ALJ
certified
	the 	appeal 	to 	the
	Board,
	reserving
	jurisdiction
	to
reconvene
	the 	hearing
	on
	the 	merits
	of
	the 	complaint 	pending
the 	Board's 	decision.
For
	the 	reasons
	that
	follow,
	we
	affirm 	the
	ALJ 1 s
	finding
that
	the
	PERB
	has
	jurisdiction
	over
	this 	unfair 	practice
complaint
	and
	affirm 	his 	denial
	of 	the 	motion 	to 	dismiss.
FACTS
The
	facts
	of
	this 	case, 	as 	found 	by
	the
	ALJ
	and
	in 	the
record, 	are 	as 	follows:
Thomas
	Barnes 	was 	a
	custodian 	working
	at
	San
	Francisco
Community 	College.
	He 	became 	a
	steward 	for 	Local 	390/400 	of
3

the 	Service
	Employees
	International
	Union
	(SEIU
	or
	Union)
	in
July
	1982.
	The
	charge
	alleges 	that
	Barnes
	was
	given
unreasonable
	work
	assignments
	in
	retaliation
	for 	his
	union
activities.
	The
	charge
	further 	alleges
	that
	Barnes
	was
	called
into
	a
	disciplinary
	meeting
	on
	October
	5,
	1983
	and,
	when
	he
tried
	to
	call
	the
	Union
	to
	get
	representation 	in
	the 	meeting,
he 	was
	given
	a
	two-day
	suspension.
	Barnes
	and
	an
	SEIU
	field
representative
	testified
	that
	he
	was
	suspended
	by
Charles
	Collins,
	the
	director
	of
	custodial
	and
	grounds
personnel 	for 	the
	District.
	The
	District's
	representative
	made
an
	offer
	of 	proof 	to 	the
	effect 	that
	Collins 	called 	his
supervisor,
	Mr: 	Iwomoto,
	to
	explain
	what
	had 	happened 	and
	that
Iwomoto
	contacted 	Hilary
	Hsu.
	the
	District
	superintendent,
	who
then 	authorized 	the 	suspension.
	Barnes
	asserts 	that,
	on
November
	9, 	1983,
	he
	was
	again
	suspended
	for 	four
	days 	by
Robert 	Sayles, 	the 	supervisor
	directly
	under
	Collins,
	when 	he
said
	he 	had
	to
	go
	to
	a
	doctor 	the 	following
	day.
	On
	April
	3,
1984, 	Barnes
	received
	a
	notice
	from
	the
	District 	that
	a
termination 	hearing
	would 	be
	held.
3
Barnes
	was
	terminated,
and
	the
	San
	Francisco 	Civil 	Service
	Commission 	(Commission)
reviewed 	the 	action.
	The 	Commission
	upheld 	the 	termination
3Although 	the 	record 	does 	not
	indicate 	the 	precise 	nature
of 	the 	hearing 	held,
	we
	note 	that 	section
	8.341 	of 	the 	San
Francisco 	City
	and 	County 	Charter 	(Charter) 	provides 	that
	a
hearing 	conducted
	by 	a
	neutral 	hearing 	officer
	under
	contract
with 	the 	City 	is 	required 	prior 	to 	final 	termination.
4

from
	the
	District,
	but
	rescinded
	his
	ineligible 	status
	as
	to
employment
	elsewhere	
with	
the 	City
	and
	County
	of
	San
	Francisco
(City.
. 	) 	4
Barnes
	received 	the
	final
	notice
	of
	termination
	on
July
	24, 	1984.
DISCUSSION
The
	gravamen
	of
	the
	District's
	jurisdictional
	objection
	in
this
	case
	is 	that
	Charging
	Party
	Thomas
	Barnes.
	like
	all
classified
	employees
	who
	work
	at
	San
	Francisco
	community
College,
	is
	not
	a
	District
	employee,
	but
	a
	City
	employee. 	This
fundamental
	point,
	argues 	the
	District,
	leads 	to 	the 	following
legal
	conclusions:
	first,
	by
	filing
	against
	the
	District
Barnes
	has
	not
	named
	a
	proper 	respondent 	to
	his
	charge,
inasmuch 	as
	the
	District 	is
	not
	his
	employer; 	and,
	second,
	by
filing
	with
	PERE,
	Barnes 	has
	filed
	with 	the
	wrong 	forum
	because
labor
	relations
	between
	a
	city
	or 	county
	and
	its
	employees
	fall
not 	under 	the
	EERA
	but 	under
	the
	Meyers-Milias-Brown 	Act,
(MMBA) 5
which
	PERE
	does
	not 	administer.
In 	support
	of
	its
	claim
	that
	Barnes•
	true
	employer
	is
	the
City, 	the
	District 	relies
	on
	Education
	Code
	sections
	88000 	and
4The
	City
	and
	county 	of 	San
	Francisco 	operate
	under
	a
single 	Charter,
	as
	further 	discussed
	below.
	Among
	other
things, 	the 	Charter 	establishes
	a
	merit 	or
	civil 	service
	system
of 	employment 	which
	includes
	a
	civil 	service
	commission 	as
	one
of
	its
	components. 	In
	this 	Decision,
	we
	have
	referred 	to 	the
City
	and 	County 	as 	the	
11
City
11	
solely 	for 	purposes 	of
convenience.
5The 	Meyers-Milias-Brown 	Act
	is 	codified 	at
	Government
Code
	section
	3500
	et 	seq.
5

88137.
	According 	to
	the
	District.
	these
	sections
	exempt
	the
classified
	employees
	at
	San
	Francisco
	Community
	College
	from
the 	coverage 	of 	both
	the
	Education
	Code
	and
	the
	EERA,
	and
thereby
	demonstrate
	that
	the
	terms
	of
	employment
	for
	such
employees
	are
	determined
	solely
	by
	the
	civil
	service 	provisions
of
	the 	Charter.
	Since 	Barnes'
	wages,
	hours,
	and
	other
	working
conditions 	are 	fixed 	according 	to 	the 	City
	Charter's
	civil
service
	system, 	says
	the
	District,
	the
	City
	is 	clearly 	his
employer.
In 	asgessing
	the
	District's
	defense.
	we
	find
	initially
	that
the 	record
	fails
	to
	substantiate
	the
	District's
	claim
	that
	it
is
	a
	mere
	department 	of
	the 	City
	and
	therefore
	cannot
	be
	a
"public
	school
	employer
11
	as 	defined 	in
	EERA
	section 	3540.l(k).
Indeed, 	our
	own
	records.
	of
	which
	we
	take
	administrative
notice, 	indicate 	that
	the
	District
	has
	several
	times 	defended
against
	charges 	before
	this
	agency
	concerning
	its
employer-employee
	relations
	with 	the
	certificated
	employees
	at
the 	College.
	See 	San
	Francisco
	Community
	College
	District
(1979)
	PERE
	Decision
	No.
	105; 	San
	Francisco
	Community
	College
District
	(1980)
	PERB
	Decision
	No.
	146; 	and 	San
	Francisco
Community
	College
	District
	(1982)
	PERB
	Decision
	No.
	278.
Moreover,
	provisions 	of 	the 	Charter
	do
	not 	support 	the
contention 	that 	the
	District 	is
	a
	mere
	department 	of 	the 	City.
Charter 	section
	5.104
	states, 	in 	pertinent 	part:
Notwithstanding 	the 	provisions 	of 	Section
5.100 	or 	of 	any 	other 	provisions 	of 	this
6

charter,
	...
	the
	community
	college
district
	ot
	the
	city
	and
	county
	shall
	be
under
	the
	control
	and 	management
	of
	a
	board
of
	education
	....
The
	clear 	intent
	of
	this
	language
	is 	that,
	"notwithstanding"
any
	other
	Charter
	provision,
	the
	District
	be
	under
	the
	"control
and 	management"
	of
	its
	board
	of
	education,
	rather
	than
	the
	City
board
	of
	supervisors.
Section
	5.104
	also
	provides
	that
	the
	superintendent
	shall
be
	the
	executive
	officer
	11
of
	the 	governing
	board
11
	of
	the
District.
	This
	contrasts
	with
	similar
	language
	in 	Charter
section
	5.102, 	mistakenly
	relied
	on
	by
	the
	District,
	where
	the
superintendent
	of
	the
	city
	unified
	school
	district
	is
established
	as 	a-department
	head
	"of 	the"
	City.
	Other
	Charter
provisions
	relied
	on 	by
	the
	District
	are 	equally
unpersuasive.
6
6In
	addition,
	the
	District 	cites
	nonexistent
	language
from
	Charter
	section
	8.321 	to 	support
	its
	position.
We
	note
	that
	the 	Dissenters 	refer
	to
	a
	February 	7,
	1984
agreement 	between
	the
	District
	and
	a 	SEIU
	local, 	apparently 	in
support
	of
	its
	position 	that
	the
	District 	is
	a
	mere
11
department" 	of
	the 	City.
	As
	the 	Dissent
	itself 	later 	states:
.
	in
	jurisdictional 	matters, 	parties
cannot,
	by
	their 	action
	of
	recognition,
create 	jurisdiction
	where 	none
	exists
	under
the
	statutes.
	(Dissenting 	Opinion
	at
	p.
	32).
Thus, 	the
	parties
1
	description
	of
	their 	relationship 	in
that
	February
	7
	agreement
	is 	legally 	irrelevant.
	Moreover,
	it
is 	contradicted 	in 	the 	District•s
	March 	13, 	1986
	letter
	to
PERB,
	wherein 	the
	District 	describes
	itself
	as 	the 	employer
under 	the
	EERA 	and
	encloses
	a
	copy 	of 	Governing 	Board
.
7

Neither
	does
	the
	District
	deny
	that
	the
	San
	Francisco
Community
	College
	District 	is
	a
	public
	school
	system.
	EERA
section
	3540
	sets 	forth
	the
	fundamental 	purpose
	of
	the 	Act.
	It
states
	that
	the
	purpose 	of
	EERA
	is
	to:
...
	promote
	the
	improvement
	of
	personnel
management 	and
	employer-employee
	relations
within
	the 	public
	school
	systems
	in
	the
State
	of
	California
	....
To
	further
	this
	end,
	the
	statutory
	scheme
	grants
	certain
rights,
	including 	the
	right
	to
	join
	and
	participate
	in
	employee
organizations,
	to
	employees
	of
	public
	school 	systems
	in
California.
	Section
	3543.S(a) 	of
	the
	Act
	protects 	these
	rights
by
	making
	it
	an
	unfair 	practice
	for 	public
	school 	employers
	to
discriminate
	or
	retaliate
	against
	employees
	because 	of
	their
exercise
	of
	rights
	guaranteed
	by
	EERA.
	Section 	3540.l 	of 	the
Government
	Code
	defines
	a
	11
i;rnblic
	school
	employee
11
	as:
any
	person
	employed
	by
	any
	public
	school
employer
	except 	persons
	elected
	by
	popular
vote,
	persons 	appointed
	by
	the
Governor
	...
	,
	management
	employees,
	and
confidential
	employees.
A
	"public
	school
	employer
11
	is
	defined 	in 	the
	same
	section 	as:
the 	governing 	board 	of
	a
	school
	district,
	a
school
	district.
	a
	county 	board 	of
education,
	or
	a
	county
	superintendent
	of
schools.
Resolution
	No. 	860218-54
	in
	which
	it
	voluntarily 	recognizes
United 	Public
	Employees 	Local 	790, 	SEIU, 	AFL/CIO,
	as 	the
exclusive 	representative
	of
	a
	wall-to-wall 	unit
	of
	classified
employees.
	(Seep.
	18,
	infra.)
8

Although
	the
	EERA
	does
	not
	specifically 	state
	that
	its
provisions
	cover
	community
	college
	districts,
	various
references 	in
	its
	sections
	make
	it
	clear 	that
	the
	Legislature
intended
	that
	result.
	See,
	e.g.,
	section
	3540,
	paragraph
	2.
Indeed, 	the
	Board
	has
	issued 	orders 	involving
	community
colleges
	since
	early
	in
	its
	history
	without 	challenge 	to
	its
jurisdiction.
It
	is 	clear,
	then,
	that
	the
	District
	functions
	under
	the
law
	as
	an
	independent
	entity,
	and
	that
	it
	operates
	a
	public
school
	system.
	Nevertheless, 	the
	District
	argues
	that
	EERA
does
	not 	apply 	to 	the
	employment
	relations
	of
	its
	classified
employees.
	The
	Education
	Code
	provisions
	relied
	on 	by
	the
District,
	however,
	do
	not 	support
	its
	argument.
The
	District
	claims
	that
	the
	Legislature,
	through 	Education
Code
	sections
	88000 	and
	88137,
	exempted 	any 	community
	college
district
	in 	the
	State 	lying
	wholly
	within
	a
	city
	and
	county
from
	the 	requirements 	of 	the
	EERA
	regarding
	classified
employees.
	The
	District 	is
	the 	only
	community
	college
	district
in 	California 	that 	is
	so
	situated.
Title
	3
	of 	the 	Education
	Code,
	sections
	71000
	through
88263,
	deals 	with
	California's
	community
	colleges; 	Chapter
	1
contains 	provisions 	applying 	to
	all
	employees 	and
	Chapter 	4,
sections
	88000
	through
	88263.,
	deals 	exclusively 	with
	classified
employees 	in
	community
	colleges.
	The
	District 	relies
	on
section 	88000, 	which 	makes 	Chapter
	land
	various 	articles
9

within
	Chapter
	4
	applicable 	to
	11
all
	classified
	employees
	of
	a
community
	college
	district
11
	unless
	otherwise
	limited.
	The
second
	paragraph
	of
	section
	88000
	st~tes:
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
	certification
qualifications.
Education
	Code
	section
	88137, 	which
	is 	entitled:
	11
Provisions
for
	inclusion
	of
	district
	employees
	in 	merit
	system 	of
	city
	and
county"
	reads:
In	
every 	community
	college
	district
coterminous 	with 	the 	boundaries
	of
	a
	city
and
	county,
	employees
	not
	employed
	in
positions 	requiring
	certification
qualifications 	shall
	be 	employed,
	if
	the
city.and
	county
	has
	a
	charter
	providing 	for
a
	merit
	system 	of
	employment,
	pursuant 	to
the 	provisions
	of 	such
	charter
	providing 	for
such 	system
	and
	shall,
	in
	all
	respects,
	be
subject 	to,
	and 	have
	all
	rights
	granted
	by,
such
	provisions;
	provided,
	however,
	that
	the
governing 	board 	of
	the
	district
	shall
	have
the
	right
	to
	fix
	the
	duties
	of
	all
	of
	its
non-certificated
	employees.
The
	District 	asserts 	that 	section
	88000
	11
absolutely
11
exempts
	the
	civil
	service/merit
	system 	employees 	of 	the
District
	from
	all
	provisions
	of 	the 	Education
	Code.
	It
	then
argues
	that, 	since 	section
	88000 	exempts
	these
	employees 	from
Chapter
	1
	and
	various 	Chapter
	4
	requirements
	and
	section
	88137
says 	they 	shall
	11
in
	all
	respects"
	be 	employed
	pursuant 	to 	the
Charter 	merit 	system, 	the
	District
	and
	its 	classified
	employees
are 	subject 	solely 	to 	the 	Charter.
10

This
	position
	is
	not
	supported	
by	
the
	text
	of
	the
sections.
	In
	our 	view,
	all
	section
	88000
	purports 	to
	do
	is
exempt
	the
	District
	from
	the 	requirements
	of
	certain
	sections
of
	the
	Education
	Code.
	EERA,
	however,
	is 	part
	of
	the
Government
	Code.
	Neither
	Chapter
	1
	nor
	Chapter
	4
	pertains
	to
collective
	bargaining. 	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.
	Nor
	does
	the
	language 	of
	EERA,
	itself,
	specifically
exempt
	the
	District
	from
	its
	coverage. 	Since
	it
	is
	obvious
from
	the
	language 	of
	section
	88000
	that
	the
	Legislature
	knew
how
	to
	exempt
	the
	District
	from
	whatever
	statutory
	provisions
it
	wanted
	to,
	and
	yet
	did 	not
	include
	an 	exemption
	from
	EERA
	in
either
	the 	Education
	Code
	sections
	or
	in
	EERA, 	we
	find 	the
District's 	first
	argument
	to
	be
	without 	merit.
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.
	It
	bolsters 	this
argument
	by
	citing 	sections
	of 	the 	Charter 	allegedly
	showing
that 	all
	control
	over 	the 	terms 	and
	conditions 	of 	employment 	of
its 	classified
	employees
	is 	vested 	in 	the 	board 	of 	supervisors
of 	the 	City
	and
	in 	the 	Commission.
11

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. 7
Section
	88137,
	then,
	merely
	requires
	that,
	to 	the
	extent
the 	Charter
	specifies
	employment
	conditions.
	the
	District
	must
act 	in
	conformity 	with 	those 	provisions 	in
	regard 	to
	its
classified
	personnel.
We
	note
	that
	many
	California 	public
	school
	districts
operate
	pursuant 	to
	a
	merit
	system, 	under 	which 	employment
conditions 	are
	determined,
	at 	least
	in 	part.
	by
	an
	independent
11
personnel
11
	or
	11
civil
	servicen
	commission.
8 Many
	such
districts
	have
	appeared 	before
	this
	agency
	in 	their 	roles
	as
7Although 	the
	District
	maintains
	it
	has 	never, 	in
	fact,
11
fixed 	the 	duties"
	of
	these
	employees,
	it
	offered
	no
	evidence
to 	support
	this.
	Moreover, 	the 	record
	shows
	that 	the
	District,
at 	the 	very
	least,
	assigned
	and
	directed
	Barnes 	in 	his
	work,
evaluated 	his 	performance 	and
	disciplined
	him.
Bsee 	Education
	Code
	sections
	88050
	through 	88139, 	which
provide ~or
	this
	system 	of 	personnel
	management
	for 	classified
employees.
12

public
	school 	employers;
	yet
	none
	have
	argued,
	nor
	could
	they,
that
	because 	of
	the
	local
	personnel
	commission,
	they
	are
	not
the
	employers 	of
	their
	school 	personnel.
	We
	see 	the 	case
	at
hand
	as
	being
	much
	the
	same.
	Thus,
	Education
	Code
	section
88137
	establishes
	the 	City
1 s
	civil
	service
	commission
	as
	the
personnel
	commission 	which
	will
	serve 	the
	District
	and
	its
classified
	employees.
	It
	does
	not 	follow
	from
	this 	that
	the
District
	is
	thereby
	stripped
	of
	its
	status
	as 	the
	employer 	of
those
	employees.
The
	District
	also
	quotes 	Charter
	section
	3.661
	to 	support
its
	assertion 	that
	the
	Commission
	has
	sole
	responsibility
	for
hiring, 	firing
	and
	supervising 	the
	classified
	work
	force,
	thus,
making
	the
	City 	the
	employer.
	Section
	3.661
	reads, 	in
pertinent 	part:
The
	commission
	shall
	adopt
	rules
	to
	carry
out 	the
	civil
	service 	provisions
	of
	this
charter
	and,
	except 	as 	otherwise 	provided
	in
this 	charter,
	such
	rules 	shall
	govern
applications:
	examinations:
	eligibility;
duration
	of
	eligible
	lists:
	certification
	of
eligibles;
	appointments: 	promotions:
transfers; 	resignations; 	lay-offs
	or
reduction 	in 	force;
	(Emphasis
	added.)
Significantly.
	the
	District
	omits
	from
	its
	quotation 	the
11
except 	as 	otherwise 	provided
11
	language.
	As
	indicated
	above,
Charter 	section
	5.104 	does 	provide 	otherwise
	by
	putting 	the
District
	under 	the 	control
	and 	management
	of
	its
	board 	of
education.
In
	any 	event, 	the
	list
	of 	terms 	and
	conditions 	of
.
13

employment
	addressed	
by	
the 	Charter
	does
	not 	appear
	to
	exhaust
the
	subjects
	the
	Board
	has 	found
	to
	be
	within
	the
	scope
	of
representation
	under
	EERA.
	The
	record
	indicates 	that
	the
District
	retains 	at 	least
	some
	residual 	authority;
	it
	can
	fix
the
	duties
	of
	its
	employees
	and,
	more
	importantly,
	it
	can
discipline
	them.
That
	an 	employee
	may
	haye
	more
	than
	one
	employer
controlling
	his
	or 	her 	terms
	Qf
	employment
	1s
	a
well-established
	concept
	in 	labor
	law.
	In 	the
	private 	sector,
the 	National
	Labor
	Relations
	Board
	(NLRB)
	has
	long 	used
	the
term
	"joint
	employer"
	to 	denote
	a
	situation
	in
	which
	more
	than
one 	employer
	determines 	the
	terms
	and
	conditions
	of
	employment
for
	a
	unit
	of 	employees. 	See,
	The
	Greyhound
	Corp.
	and
	Floors,
Inc.
	(1965)
	153
	NLRB
	1488, 	1495;
	Manpower,
	Inc.
	and
	Armour
Grocery 	Products
	Co.
	(1967)
	164
	NLRB
	287; 	and
	Thriftown, 	Inc.
d/b/a
	Value
	Village
	(1966) 	161
	NLRB
	603.
	In 	Turlock 	School
Districts
	(1977)
	EERB
	Order
	No.
	Ad-18,
9 PERB
	applied 	the
	NLRB
standard 	for
	joint
	employers
	in 	resolving
	whether
	two
	school
districts
	were
	joint
	employers.
Other
	state
	public
	employment
	labor 	boards 	have
	also
endorsed
	and
	applied 	the
	NLRB's
	joint
	employer
	doctrine.
	Thus,
in
	County 	of
	Ulster, 	et 	al.
	(1970)
	3
	NY
	PERB
	3527,
	the 	Public
Employment
	Relations
	Board 	of 	the 	State
	of
	New
	York
	held
	that
9prior 	to 	January
	l,
	1978,
	PERB 	was 	known
	as 	the
Educational
	Employment
	Relations 	Board.
/
. 	\	
\._
	.
14

the
	County
	of
	Ulster
	and
	the
	constitutionally-established
Sheriff
1 s
	Department
	were
	joint
	employers 	of
	the
	Sheriff
1 s
Department
	deputies.
	citing. 	inter
	alia.
	Greyhound 	and
Manpower,
	supra.
The
	California
	Supreme
	Court
	has
	itself
	endorsed
	the 	notion
that
	California
1 s
	public
	employees
	may
	have
	more
	than
	one
employer.
	Thus,
	in
	Los
	Angeles
	Civil
	Service
	Commission
	v.
superior
	Court
	(1978)
	23
	Cal.3d
	55,
	the
	court
	considered
	a
	case
in
	which.
	by
	county
	charter.
	the
	civil
	service
	commission
	had
sole 	authority
	to 	determine
	layoff
	procedures
	for
	county
employees.
	The
	court 	ruled
	that,
	notwithstanding 	the
	fact 	that
most
	other
	working
	conditions
	were
	controlled
	by
	the 	county
itself,
	the
	civil
	service
	commission
	functioned 	as
	the
	employer
for
	purposes 	of
	the 	subject
	of
	layoffs
	and.
	therefore, 	the
commission
	had
	the
	obligation
	as 	employer 	under
	the
	MMBA
	to
meet 	and
	confer
	on
	layoff
	procedures 	with 	the 	union
representing 	the
	county 	workers.
In
	the 	underlying 	determination, 	the
	ALJ
	observed
	that 	just
such
	a
	division
	of
	authority
	appears 	to
	exist
	between
	the
District
	and
	the 	City.
	He
	stated:
The 	San
	Francisco 	City
	and 	County 	Board 	of
Supervisors,
	by
	their 	control
	over 	the
annual 	budget
	and
	annual
	salary-setting
ordinance, 	act
	as 	"employer"
	in 	this
obviously 	important 	area 	of 	labor-management
relations.
	The
	City
	and 	County, 	through 	the
civil 	service
	commission,
	also 	acts 	as
"employer'
1
	in 	other 	important 	ways. 	At
	the
same
	time, 	though,
	it
	is 	clear
	from 	the
discussion 	above
	that 	the 	Legislature
15

intended 	the
	District
	board 	of
	trustees
	to
continue
	to
	act
	as
	the
	employer
	of
classified
	employees
	in 	other
	ways.
Further,
	it
	is
	the
	intent
	of
	the
	charter
that
	the
	District
	governing
	board
	exercise
11
control
	and 	management
11	
of
	the 	school
district.
	It
	must 	be
	concluded
	that
	the
District
	has
	the
	right
	and
	obligation
	to
	do
so,
	and
	in
	so
	doing
	to
	act
	as
	employer
	in
all
	ways
	authorized
	by
	statute.10
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.
	Further.
	both
	logical
	inference
	and
	the
	brief
record
	of
	this
	case
	indicate 	that
	the
	District's
	governing
board
	also
	has
	the
	related 	authority
	to 	evaluate 	the
	job
performance 	of
	its
	employees,
	to
	correct 	their
	work, 	and
	to
reassign
	an~
	discipline
	those
	employees
	as 	necessary.
	Most
relevantly
	of
	all,
	it
	is 	clear
	from
	the
	facts 	that
	the
allegedly
	unreasonable
	work
	assignment
	and
	the
	two
	suspensions
imposed 	on
	Thomas
	Barnes 	were
	decided
	on 	and 	implemented 	by
lOrn 	the 	underlying 	proceeding, 	neither 	party 	favored 	the
application
	of 	the 	term
	11
joint
	employer
11
	to 	the 	relationship
between 	the
	District
	and
	the 	City.
	While 	the
	District
maintained 	that 	the 	City
	was
	the 	sole
	employer, 	Charging 	Party
used 	the 	term
	11
dual 	employers
11
	to 	characterize 	the
relationship,
	and 	the
	ALJ
	adopted 	that 	term.
	We
	find
	no
	basis
in 	the 	record 	for 	the 	creation 	of 	such
	new
	terminology 	and 	here
disavow
	it. 
16

District 	officials;
	the 	record
	does
	not
	show
	that
	the
	City
played
	any
	role.
	The
	record
	is
	less 	clear
	regarding
	his
termination
	but. 	although 	the
	Commission
	played
	a
	role,
	there
is
	nothing 	to
	indicate 	that
	it
	or 	the
	City
	was
	the
	prime
mover. 	Having
	demonstrated
	that
	the
	District
	was
	the
	party
taking
	adverse
	action 	against
	Barnes,
	the
	District
	has
	the
burden
	of
	demonstrating
	that
	it
	is
	not 	the 	proper 	respondent 	in
this
	action.
	It
	has
	failed
	to
	do
	so.
Finally,
	it
	appears
	that
	such
	a
	joint
	employer
	relationship
can
	function 	quite
	smoothly 	under
	the
	laws
	governing
	the
conduct 	of
	labor
	relations
	in
	San
	Francisco.
	We
	note
	with
interest
	the
	employment
	relationship 	existing 	in
	San
Francisco's
	other 	public
	school
	district.
	Nothing
	in 	the
record 	indicates 	that
	the
	San
	Francisco 	Unified
	School
	District
is
	embued 	by
	law
	with
	greater
	independent
	authority
	than 	the
Community
	College
	District.
	Yet,
	the 	Unified
	School
	District
an 	s1gne
d 	a
	memoran
	um
	o fh
as
	negotiate
	un
	erstan
	1ng	
. 	d 	d 	. 	d 	d
	d.	
ll
with
	SEIU
	as 	the 	exclusive 	representative
	of
	the 	Unified
	School
District
1 s
	classified
	personnel
	which
	operates 	in 	conjunction
llThat
	agreement 	provides
	initially
	that:
This 	agreement
	is
	intended 	to
	establish
	a
mutually
	satisfactory
	arrangement 	between
the
	District
	and
	the
	Union
	regarding 	only
those 	certain 	conditions 	of 	employment
within 	the 	discretion
	of 	the
District
	....
	This 	agreement
	is 	limited
to 	those 	areas 	of
	jurisdiction
	over 	which
17

same
	with
	the
	memorandum
	of
	understanding 	covering 	the
employees
	that
	SEIU
	negotiated
	with 	the
	City.
Peter
	Wilensky,
	field
	representative
	for
	SEIU,
	testified
that 	his 	organization
	has 	been 	working 	toward
	a
	memorandum
	of
understanding 	with 	the
	Community
	College
	District
	which 	would
be
	similar
	in
	scope
	to
	SEIU
1 s
	contract
	with 	the 	Unified
	School
District.
	Indeed,
	the
	District
	and
	SEIU
	have
	already 	signed
	an
establishing
	approved
	methods
	of 	union
	access
	and,
	on
	agreement
February
	18,
	1986,
	the
	District
	Governing 	Board
	adopted
Resolution
	No.
	860218-54,
	voluntarily
	recognizing
	a
	SEIU
	local
unit
	of
	its
	as
	the
	exclusive
	representative
	of
	a
	wall-to-wall
classified
	employees
	pursuant 	to
	EERA.
12
Upon
	the 	foregoing 	review,
	we
	conclude
	that,
	while
	the 	City
the
	School
	District
	has
	the
	authority
	to
	act.
Thereafter,
	the
	argument
	sets 	forth
	provisions
	on
	employer
discrimination, 	evaluation 	procedures, 	union
	security,
	union
access. 	in-service 	training,
	subcontracting
	of
	work,
	voluntary
reduced
	workweek, 	work
	assignment 	procedures, 	grievance
procedure
	and
	other 	matters.
	Express
	references 	in 	the
agreement 	to 	the
	memorandum
	of 	understanding
	which
	SEIU
negotiated 	with 	the 	City
	reflects 	that
	the
	two
	agreements
	are
appropriately
	harmonized. 	See,
	for
	example,
	the 	grievance
procedure 	provision.
12we
	take 	note 	of
	this
	Resolution, 	as 	well 	as 	the
agreement 	between
	SEIU
	and
	the
	San
	Francisco 	Unified 	School
District,
	not 	because
	we
	find 	either
	has 	any
	11
binding
11
	effectcase, 	but	or
	precedential 	value 	in 	the 	analysis
	of 	the
	instant
because 	both
	show
	that
	the
	11
tremendous 	confusion" 	over
	ratherbargaining 	that 	the 	Dissent 	anticipates 	will 	result
	from
	PERB 1 s
taking 	jurisdiction
	over 	the
	parties 	in 	the 	instant 	case
apparently
	has 	not 	yet 	occurred 	in 	the 	Unified 	School
	District
negotiations
	and
	is
	not 	greatly 	feared
	by
	the 	parties
	who 	would
be
	bargaining 	over 	the
	Community
	College 	classified
	employees•
concerns.
18

acts
	as 	the
	employer
	of
	the
	District's
	classified
	personnel 	for
some
	purposes, 	as
	reflected
	in
	the
	existing
	memorandum
	of
understanding
	between
	the
	City
	and
	SEIU,
	the
	District
	itself
has
	exclusive 	control
	over
	certain
	other 	matters
	which
	are
central
	to 	the
	employment
	relationship
	and
	is
	therefore
properly 	designated
	as
	the
	employer
	of
	its
	classified
	personnel
to
	that
	extent.
Since 	the 	record 	before
	us
	is
	limited.
	we
	do
	not 	here
attempt
	to
	map
	out
	the 	exact 	parameters
	of
	the
	employer
authority
	which
	resides 	in
	the
	District
	and
	in
	the 	City,
respectively.
Our
	holding
	furthers
	the
	purpose 	of
	EERA
	section
	3543.S(a),
to
	protect
	public
	school
	employees 	from
	reprisals,
discrimination
	or
	coercion
	because 	of
	their
	exercise
	of
	rights
guaranteed
	by
	the
	EERA. 	By	
providing
	a
	forum
	in
	which
	Barnes
can 	seek
	redress 	for 	the
	alleged 	unfair 	practices 	against
	him,
we
	are 	furthering
	the 	purposes 	of 	the
	EERA
	in 	conformity 	with
the
	intent
	of
	the
	Legislature.
	Doing 	so 	does 	not
	interfere
with 	the 	protections
	given
	employees 	under
	the
	City's
	merit
system;
	instead,
	it
	complements 	them.
13
13See
	Pacific
	Legal 	Foundation 	v.	
Brown
	(1981)
	29
	Cal.3d
168, 	where
	the
	Supreme
	Court 	found
	that 	the 	authority
	of 	the
State
	Personnel 	Board 	to 	enforce 	the 	merit 	system 	as 	provided
for 	in 	the 	California 	constitution
	did 	not 	preclude 	or
	conflict
with 	the 	authority 	granted
	PERB
	under 	the 	State
Employer-Employee 	Relations 	Act.
	It
	found
	that 	the
	two
	boards
served 	different, 	but 	not 	inconsistent, 	purposes 	and 	upheld
PERB's
	jurisdiction.
19

ORDER
For
	the
	above
	reasons,
	we
	find
	that
	the 	Public
	Employment
Relations
	Board 	has
	jurisdiction
	over
	the
	unfair
	practice
complaint
	in
	Case
	No.
	SF-CE-884.
	We
	therefore
	AFFIRM
	the
administrative
	law
	judge's 	denial
	of
	the
	motion
	to 	dismiss
	and
REMAND
	the 	complaint
	to 	the
	administrative
	law 	judge
	for
	a
hearing
	on
	the
	merits
	of
	the 	complaint.
Members
	Morgenstern
	and
	Craib 	joined
	in
	this
	Decision.
Chairperson 	Hesse's 	Dissent
	begins
	on
	page 	21.
Member
	Porter's
	Dissent
	begins
	on
	page 	35.
20

Hesse, 	Chairperson, 	dissenting: 	The 	issue 	of 	PERB's
jurisdiction 	over 	certain 	classified 	employees 	of 	the 	City 	and
County 	of 	San 	Francisco 	(San 	Francisco) 	is 	a 	novel 	one.
Although 	this 	Board 	has 	ruled 	on 	cases 	that 	dealt 	with 	various
other 	community 	college 	districts, 1 and 	although 	it 	has
occasionally 	ruled 	on 	cases 	involving 	a 	district 	with 	a 	merit
system, 2 the 	Board 	has 	never 	addressed 	the 	issue 	of 	whether
the 	classified 	employees 	of 	the 	San 	Francisco 	community 	College
District 	(SFCCD) 	are 	under 	our 	jurisdiction. 3
San 	Francisco's 	political 	structure 	is 	unlike 	any 	other 	in
California, 	due 	to 	the 	identical 	boundaries 	of 	the 	city 	and
county. 	Further 	setting 	San 	Francisco 	apart 	from 	other 	cities
and 	counties 	is 	the 	fact 	that 	this 	combined 	city 	and 	county 	was
established 	by 	charter. 	California 	courts 	have 	long
acknowledged 	that 	a 	municipal 	government 	established 	by 	charter
has 	certain 	rights 	of 	self-governance 	granted 	under 	the
California 	constitution 	that 	are 	not 	available 	to 	general 	law
municipalities. 4 San 	Francisco 	is 	unique 	in 	that 	it 	is 	the
lsee, 	e.g., 	Mt. 	San 	Antonio 	community 	College 	District
(1982) 	PERB 	Decision 	No. 	224.
2see, 	e.g., 	Sonoma 	county 	Board 	of 	Education 	v. 	PERB
(1980) 	102 	Cal.App.3d 	689.
3This 	is 	in 	contrast 	to 	the 	certificated 	unit, 	which 	has
had 	a 	collective 	bargaining 	relationship 	since 	at 	least 	1978.
statutorily, 	the 	certificated 	unit 	is 	not 	covered 	by 	the
Ed~cation 	Code 	provisions 	at 	issue 	here, 	since, 	obviously,
certificated 	employees 	are 	not 	governed 	under 	merit 	systems.
4sonoma 	county 	organization 	of 	Public 	Employees 	v. 	county
of 	Sonoma 	(1979) 	23 	Cal.3d 	296.
21

only 	chartered, 	combined 	city/county 	government 	in 	California.
As 	part 	of 	its 	charter, 	San 	Francisco 	established 	a 	civil
service 	commission 	to 	oversee 	its 	merit 	system 	and 	to
administer 	its 	employment 	policies 	and 	practices. 5 In
addition, 	San 	Francisco 	is 	under 	the 	jurisdiction 	of 	the
Myers-Milias-Brown 	Act 	(MMBA), 	Government 	Code 	section 	3500 	et
seq. 	San 	Francisco, 	as 	the 	employer, 	negotiates 	memoranda 	of
understanding 	(MOU) 	with 	various 	unions 	under 	the 	auspices 	of
that 	act. 6
In 	this 	unique 	setting, 	service 	Employees 	International
union, 	Local 	390/400 	(SEIU) 	was 	recognized 	by 	San 	Francisco
pursuant 	to 	the 	MMBA 	as 	the 	exclusive 	representative 	of 	certain
employees, 	including 	custodians 	(TR, 	pg. 	11). 	As 	the 	exclusive
representative, 	the 	union 	has 	negotiated 	a 	MOU 	with 	San
Francisco. 	When 	Mr. 	Barnes 	(Charging 	Party 	or 	Barnes) 	was
hired 	by 	San 	Francisco 	as 	a 	custodian, 	he 	was 	hired 	under 	the
auspices 	of 	the 	civil 	service 	commission, 	and 	he 	became 	subject
to 	the 	memorandum 	of 	understanding 	negotiated 	by 	SEIU 	under 	the
MMBA. 7
SAlso 	as 	part 	of 	the 	charter, 	the 	San 	Francisco 	Unified
School 	District 	and 	the 	SFCCD 	were 	created.
6nue 	to 	a 	charter 	provision 	enacted 	in 	1976, 	the 	city
cannot 	negotiate 	wages 	per 	se. 	Those 	are 	established 	by 	the
civil 	service 	commission:- 	But 	see 	footnote 	9, 	infra.
7charging 	Party's 	own 	pleadings 	to 	this 	Board 	note 	that
custodians 	in 	general 	are 	classified 	by 	the 	City 	and 	County 	of
san 	Francisco, 	and 	can 	be 	assigned 	to 	any 	one 	of 	several
locations 	within 	the 	city 	and 	county. 	In 	other 	words, 	after
22

That
	Barnes
	is
	an 	employee
	of 	the
	city
	and
	county
	rather
than
	the
	community
	college
	district
	is
	apparent
	from
	a
	number
of
	factors.
	He
	can
	be
	transferred
	to
	any
	other
	department
within
	the
	city
	and
	county,
	subject
	only 	to 	the 	chartered 	merit
system
	rules.
	Discipline
	that
	is
	imposed
	upon
	the
	custodians
is
	done 	so
	pursuant 	to
	civil
	service
	rules.
	Indeed, 	Barnes,
after
	his
	"termination"
	by
	the
	SFCCD,
	continued 	to
	be 	an
employee
	of 	the 	City
	and
	county 	of
	San
	Francisco.
	(Union's
brief
	to
	the 	hearing
	officer
	regarding
	jurisdiction 	at
	pg.
	7.)
Charging
	Party
	concedes
	that
	he
	is
	an 	employee
	of
	the 	City
and
	county 	of
	San
	Francisco.
	As
	noted
	before,
	such 	an
employment
	relationship
	brings
	him
	under
	the
	protection 	of 	the
MMBA.
	He
	further
	argues,
	however,
	that
	he
	is
	also
	an
	employee
of
	the
	SFCCD
	and, 	as 	such,
	also
	comes
	under
	the
	jurisdiction
	of
PERB
	through
	its
	administration
	of
	EERA.
being
	hired,
	a
	custodian
	can 	be
	assigned 	to
	work
	at 	city 	hall,
the 	county
	hospital
	or 	even
	the
	SFCCD.
	Transfers
	from
	one
department 	to 	another 	are
	strictly 	civil
	service 	matters.
	If
	a
custodian
	is
	assigned 	to 	the
	SFCCD,
	in
	its
	position
	as
	a
department 	of 	the 	City
	and
	county 	of
	San
	Francisco, 	the
	SFCCD
has
	the 	right 	to 	assign 	the 	custodian 	to
	any
	particular
campus. 	This
	is
	akin 	to
	a
	custodian 	being 	assigned 	to
	San
Francisco 	General
	Hospital,
	and
	the
	hospital
	itself
	assigningthe 	custodian 	to
	work
	in
	a
	particular 	building 	in 	that
	facility.
Although 	Barnes
	is
	the 	only
	named
	charging 	party 	in
	this
proceeding,
	we
	note
	that 	his 	legal 	counsel 	also 	represents
	SEIU
and
	appears 	to 	argue 	as 	well
	on
	behalf 	of 	SEIU's
	alleged 	rightsto 	negotiate
	under
	EERA.
	All
	parties
	assume, 	as 	does
	the
majority 	opinion, 	that 	bringing
	Bar~es
	within
	PERB's
jurisdiction
	would
	likewise 	extend
	PERB's
	jurisdiction 	to 	his
representative, 	thereby 	according
	all
	the 	EERA-created
statutory 	rights 	to
	SEIU.
	Indeed,
	we 	know
	of
	no
	precedent 	nor
legal 	basis 	that
	would
	limit 	the 	jurisdiction 	of
	EERA, 	once
granted, 	solely 	to 	the 	issue 	in 	the 	present 	case.
23

Thus, 	he 	argues, 	he 	has 	a 	"dual 	employer." 	The 	ALJ
appropriately 	recognized 	that 	neither 	PERB 	nor 	the 	National
Labor 	Relations 	Board 	(NLRB) 	have 	used 	this 	term, 	but 	rather,
generally 	use 	the 	term 	"joint 	employer." 	The 	ALJ 	specifically
found 	that 	Charging 	Party 	did 	not 	intend 	"dual 	employer" 	to 	be
synonymous 	with 	"joint 	employer." 	No 	doubt 	this 	conclusion 	was
reached 	because 	the 	relationship 	between 	SFCCD 	and 	San
Francisco 	does 	not 	meet 	the 	NLRB 	standard 	for 	joint 	employers.
The 	majority 	opinion, 	however, 	adopts 	the 	position 	that 	San
Francisco 	and 	SFCCD 	are 	joint 	employers. 	The 	majority 	opinion
cites 	cases 	decided 	under 	the 	National 	Labor 	Relations 	Act
(NLRA), 	in 	which 	the 	NLRB 	was 	asked 	to 	find 	a 	"joint 	employer"
relationship 	between 	two 	employers 	that 	are 	both 	subject 	to 	the
. same 	act. 	Here, 	however, 	two 	statutes 	are 	involved, 	EERA 	and
MMBA, 	and 	thus 	finding 	of 	a 	joint 	employer 	relationship 	will
impose 	two 	complete 	statutory 	schemes 	on 	one 	group 	of 	employees.
Furthermore, 	even 	assuming 	SFCCD 	and 	San 	Francisco 	were
subject 	only 	to 	one 	act, 	the 	majority 	opinion 	ignores 	the
NLRB's 	test 	for 	finding 	a 	joint 	employer 	relationship. 	Under
the 	NLRA, 	a 	joint 	employer 	relationship 	will 	be 	found 	when 	a
secondary 	employer 	"is 	in 	a 	position 	to 	influence 	the 	labor
relations" 	of 	the 	primary 	employer. 8 Under 	Barnes' 	own
argument, 	the 	primary 	employer 	is 	the 	City 	and 	County 	of 	San
8Thriftown, 	Inc. 	(1966) 	161 	NLRB 	603; 	David 	Gold 	and
Harvey 	Tesler 	(1965) 	155 	NLRB 	295.
24

Francisco. 	Whether 	SFCCD ,would 	become 	a 	joint 	employer 	under
NLRB 	standards 	would 	depend 	on 	the 	influence 	it 	has 	over 	the
labor 	relations 	of 	San 	Francisco. 	According 	to 	this 	record,
aside 	from 	making 	the 	work 	assignments 	of 	the 	custodians, 	SFCCD
apparently 	has 	no 	influence 	over 	San 	Francisco's 	labor
relations. 	Although 	it 	can 	initiate 	discipline, 	it 	does 	so
only 	according 	to 	the 	MOU 	and 	the 	rules 	of 	the 	civil 	service
commission. 	There 	is 	no 	evidence 	that 	SFCCD 	has 	any 	authority
independent 	of 	those 	rules 	and 	regulations 	of 	the 	city 	and
county 	to 	hire, 	fire 	or 	discipline 	employees. 	certainly 	it 	has
no 	authority 	to 	negotiate 	working 	conditions 	- 	that 	is
permitted 	only 	to 	the 	city 	and 	county 	under 	the 	MMBA. 	Wages
and 	benefits 	are 	not 	bargained 	at 	all, 	currently 	even 	by 	San
Francisco 	under 	the 	MMBA. 	They 	are 	set 	by 	the 	civil 	service
Commission. 9 Therefore, 	it 	cannot 	be 	concluded 	that 	SFCCD
has 	any 	meaningful 	influence 	over 	the 	employee 	relations 	of 	the
City 	and 	county 	of 	San 	Francisco.
The 	majority 	opinion 	also 	relies 	upon 	Greyhound 	Corporation
Inc. 	(1965) 	153 	NLRB 	1488. 	In 	that 	case 	the 	NLRB 	confronted
9certain 	subjects 	of 	bargaining 	are 	not 	negotiable 	due 	to
the 	charter 	provisions. 	(See 	San 	Francisco 	Fire 	Fighters,
Local 	798 	v. 	Board 	of 	supervisors 	of 	the 	City 	and 	county 	of 	San
Francisco 	(1979) 	96 	cal.App.3d 	538.) 	A recent 	case 	decided 	by
the 	California 	supreme 	court 	indicates 	that, 	despite 	that
decision, 	subjects 	may 	be 	negotiable 	within 	the 	framework 	of
the 	merit 	system, 	but 	that 	the 	statute 	that 	governs 	the
negotiability 	is 	the 	MMBA. 	(See 	People 	ex 	rel. 	seal 	Beach
Police 	Officers 	Association 	v. 	City 	of 	seal 	Beach 	(1984) 	36
cal.3d 	591.)
25

the
	issue
	of
	whether
	the
	employees
	of
	an
	independent
	contractor
(Floors,
	Inc.)
	were
	also
	employees
	of 	the
	corporation 	to
	which
the 	independent
	contractor
	provided
	services
	(Greyhound,
Inc.).
	In
	finding
	that
	a
	joint
	employer
	relationship
	existed,
the
	NLRB
	noted
	that
	the
	Floors'
	employees
	had
	originally
	been
employees
	of
	Greyhound 	and 	were
	transferred
	to
	the
	Floors'
payroll 	at
	a
	later
	date.
	Furthermore,
	the
	secondary
	employer
(Greyhound)
	exercised 	control
	over
	all
	aspects
	of
	work
assignment
	and
	evaluation.
	More
	importantly,
	Greyhound
dictated
	to
	Floors 	the
	straight-time
	and
	overtime
	wages
	to
	be
paid
	to
	the
	Floors'
	employees,
	setting
	a
	cap
	on
	the 	allowance
of 	overtimee
	Finally,
	Greyhound
	specified
	the
	number
	of
employees
	to
	be
	assigned 	for
	each
	shift.
we
	find
	no
	such
	evidence 	of
	dual
	control
	over
	the
custodians 	in
	this
	case.
	The
	"secondary
	employer"
	(SFCCD)
	has
no
	influence
	on 	wages
	or
	benefits.
	Mere
	assignment 	of
	tasks
	is
not, 	in
	and
	of
	itself,
	enough
	to
	make
	SFCCD
	an 	employer
	of
classified
	employees
	in
	this 	situation.
	Perhaps
	if
	other
factors
	were
	present,
	we
	might 	conclude
	differently.
	But 	no
evidence
	was
	presented
	that
	leads 	to
	any
	conclusion 	but
	that
Barnes
	is
	subject
	only 	to
	MMBA
	and
	civil
	service
	laws, 	not
	EERA.
Further,
	we
	foresee
	tremendous 	confusion 	should
	PERB
	assert
jurisdiction
	over 	these
	classified
	employees. 	For 	example,
	if
SFCCD
	is
	the 	"employer" 	under
	EERA,
	it
	will 	presumptively 	have
an
	obligation 	to
	comply 	with
	all
	of
	EERA's
	provisions,
including 	the 	duty 	to 	bargain.
	The
	majority 	opinion 	attempts
26

to
	deal
	with
	the
	issue
	of
	SFCCD's
	bargaining
	duty
	by
	citing
	the
MOU
	between
	San
	Francisco 	Unified
	School
	District
	(SFUSD)
	and
SEIU,
	the
	representative
	of
	SFUSD's
	classified
	employees,
despite
	the
	charter
	constraints.
	we
	do
	not
	believe
	that
	the
actions
	of
	the
	unified
	school
	district
	are
	binding
	upon
SFCCD.lO
The
	positions
	of
	both 	Charging
	Party
	and
	SFCCD
	demonstrate
that 	there
	is
	very
	little
	authority
	vested 	in
	SFCCD
	to
negotiate
	over
	any
	of
	the
	subjects
	within 	scope.
	In
	fact,
Charging
	Party 	takes 	the
	position 	that
	the
	negotiation
obligation
	would
	extend 	only
	to 	those
	subject 	areas 	in
	which
SFCCD
	has
	discretion
	and 	which
	are
	not
	already
	encompassed 	by
the
	existing
	MOU.
	Cited
	examples
	include
	transfers
	within 	the
district
	and
	video
	display 	safety 	conditions.
	we
	find
	no
precedent
	whatsoever 	for 	the
	proposition
	that
	an 	employer
	is
subject 	to 	part
	of
	EERA
	but 	not
	all
	of
	it,
	nor
	that
	an
	employer
can 	be
	held 	accountable
	under 	both
	MMBA
	and
	EERA.
	This,
however,
	is
	the 	unavoidable
	result
	of 	the 	majority 	opinion.
	If
SFCCD
	can 	be
	held
	liable
	under
	EERA
	section 	3543.S(a), 	then
	it
should
	have
	the 	concomitant
	right
	and
	obligation 	to 	bargain
over
	all
	subjects 	of 	representation
	- 	an
	obligation
	it
	cannot,
in
	fact, 	fulfill.
l0purthermore,
	we
	note
	that 	the
	jurisdictional
	problem
has 	never 	arisen 	before, 	probably 	because 	the
	same
	union
represents 	all
	custodians
	who
	are 	employees 	of
	San
	Francisco,
no
	matter
	w1iere
	they 	are 	assigned 	to 	work.
27

The 	sole 	statutory 	support 	advanced 	by 	the 	majority 	opinion
for 	the 	position 	that 	SFCCD 	is 	also 	Barnes' 	employer 	depends 	on
a 	construction 	of 	a 	single 	word 	used 	in 	a 	very 	limited 	context
in 	the 	Education 	code. 	section 	88137 	grants 	SFCCD 	the 	right 	to
fix 	the 	duties 	of 	"its" 	employees. 	The 	majority 	opinion
asserts 	that 	use 	of 	the 	word 	"its" 	denotes 	a 	legislative
recognition 	of 	the 	employer-employee 	relationship 	between 	SFCCD
and 	classified 	employees 	who 	perform 	services 	for 	the
district. 	That 	word, 	combined 	with 	a 	legislative 	failure 	to
specifically 	exempt 	SFCCD 	from 	the 	provisions 	of 	EERA,
constitutes 	sufficient 	legal 	authority, 	according 	to 	the
majority 	opinion, 	to 	extend 	PERB's 	jurisdiction 	to 	those
classified 	employees. 	A careful 	reading 	of 	those 	statutes,
however, 	leads 	to 	the 	inevitable 	conclusion 	that 	SFCCD 	is 	not
the 	employer 	of 	Barnes.
In 	looking 	at 	the 	Education 	Code, 	we 	note 	that 	classified
employees 	of 	SFCCD 	have 	a 	unique 	status 	under 	the 	law. 	The
first 	paragraph 	of 	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 	system, 	is
included. 	According 	to 	the 	second 	paragraph 	of 	section 	88000,
however, 	these 	same 	provisions 	do 	not 	apply 	to 	non-certificated
employees 	of 	SFCCD.
28

The 	question 	becomes, 	then, 	"What 	provisions 	are 	not
covered 	under 	the 	first 	paragraph, 	and 	thus 	would 	apply 	to
SFCCD?" 	Of 	those 	articles 	not 	specifically 	excluded, 	the 	only
article 	of 	any 	substance 	is 	Article 	3, 	governing 	merit
districts. 	Within 	that 	article, 	however, 	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 	SFCCD 	with 	regard 	to
"its" 	classified 	employees 	is 	the 	right 	to 	assign 	duties. 	The
employees 	themselves 	enjoy~ 	of 	the 	Education 	Code 	benefits
and 	protections 	given 	to 	all 	other 	classified 	school 	employees
in 	California. 	Rather, 	they 	must 	look 	to 	San 	Francisco's
charter 	and 	civil 	service 	rules. 	Accordingly, 	PERB 	may 	not
grant 	the 	District 	any 	other 	authority 	over 	those 	employees,
absent 	such 	grant 	of 	authority 	in 	the 	San 	Francisco 	charter.
The 	fact 	that 	the 	district 	may 	initiate 	discipline 11 of 	an
llEven 	on 	this 	issue, 	the 	record 	is 	not 	clear 	that
Barnes' 	supervisors 	are 	employed 	by 	SFCCD, 	any 	more 	than 	is
Barnes 	himself. 	The 	District's 	post-hearing 	brief 	asserts 	that
the 	supervisors 	are 	also 	under 	the 	civil 	service 	system, 	and
are 	within 	a 	county-wide 	unit 	of 	supervisors 	and 	managers 	and
are, 	themselves, 	subject 	to 	an 	MOU 	negotiated 	with 	San
Francisco. 	The 	Charter 	offers 	some 	support 	for 	this 	assertion,
29

employee
	assigned
	to
	work
	in 	the
	district
	does
	not
	alter
	the
essential
	relationship
	between
	the
	employee 	and
	the 	county,
particularly
	when
	the
	discipline
	is
	imposed
	pursuant
	to
	civil
service 	rules
	and
	the
	employee
	has
	the
	right
	pursuant 	to
	the
MOU
	to
	a
	binding
	arbitration
	hearing 	before
	a
	neutral
arbitrator. 	If
	the
	arbitrator's
	decision
	is
	adverse
	to
	the
employee,
	that
	decision
	is
	binding
	with
	respect 	to 	the
	civil
service
	commission,
	which
	then
	may
	determine
	whether
	the
employee
	continues
	to
	be
	eligible
	for
	city/county
	employment.
In
	this
	case, 	the
	arbitrator
	found
	there
	was
	cause
	to
	terminate
Barnes'
	employment
	with
	SFCCD. 	The
	civil
	service
	commission
then
	ruled
	that
	Barnes
	is
	still
	eligible
	for
	employment
	in 	the
city
	and
	county
	and 	he
	is
	now
	working
	for 	the
	Department
	of
Health.
The
	majority 	opinion
	also 	finds
	no
	legislative 	intent 	to
exclude
	SFCCD
	from
	the 	provisions 	of
	EERA,
	focusing
	on
	the
definition
	of 	"public 	school
	employer" 	and
	finding
	that
	SFCCD
meets
	that 	definition.
	The
	focus,
	however, 	should
	be 	on
	Barnes
-
	not
	the
	District.
	EERA
	defines 	"public 	school
	employee"
	as
"any
	person
	employed 	by 	any
	public 	school
	employer
	...
"
and
	there 	is
	no
	explicit
	evidence 	to 	the 	contrary.
	For
example, 	the
	letter
	informing 	Barnes
	that
	SFCCD
	was
	"bringingcharges"
	was
	signed
	by 	a
	"senior 	departmental 	personnel
officer,"
	Mori 	Noguchi. 	(Charging
	Party 	Exhibit
	7)
	If
	Barnes'
supervisors,
	who
	initiated
	the 	discipline, 	are
	employed 	by
	san
Francisco,
	and
	if
	the 	only 	role 	of 	the
	District
	in
	initiatinghis 	discipline
	was
	to 	bring 	the 	charges 	through 	these
supervisors, 	then
	it
	can 	hardly
	be
	said 	the 	District,
	in 	thesense 	of 	the 	governing 	board,
	initiated 	the 	discipline.
30

(Government
	Code
	section 	3540.l(j)
	emphasis
	added.)
	The
	facts
in
	the
	record
	demonstrate
	that
	Barnes
	is
	not
	employed
	by
	the
district,
	but
	rather
	is
	an
	employee
	of
	san
	Francisco,
	and
	thus
not
	a
	public
	school
	employee
	within 	the
	meaning
	of
	EERA.
For
	example, 	Charging
	Party 	Exhibit
	4
	is
	an
	agreement
	dated
February
	7,
	1984, 	between
	SFCCD
	and
	United
	Public
	Employees,
Local
	390/400,.
	In
	that
	agreement,
	SEIU
agrees
	that
	all
	its
	represented
	employees
located
	at
	San
	Francisco
	community
	College
District
	work
	sites
	and
	locations 	are
employed
	by
	the 	City
	and
	county 	of
	san
Francisco-,-n~the
	Community
	Colleg_e_
D1str1ct.
	(Emphasis
	added.)
This 	agreement, 	signed
	by
	representatives
	of 	both
	SFCCD
	and
Local 	390/400,
	states
	that
	all
	employees
	represented
	by
	Local
390/400
	have
	all
	rights,
	privileges
	and
	obligations
	of
	civil
service
	employees;
	that
	the
	District
	is,
	for
	all
	purposes
involving
	civil
	service
	employees,
	a
	department 	of 	the
	city
	and
County;
	that
	SFCCD's
	chancellor
	is
	a
	Department
	Head 	and
Appointing 	Authority 	within 	the
	statutory
	scheme
	established
	by
the
	city
	and
	county;
	and
	that
	these
	employees
	are
	covered 	under
the
	MOU
	between
	the 	City
	and
	county
	and 	SEIU
	Locals 	250,
390/400,
	and 	535. 	(Charging
	Party 	Exhibit
	1).
on
	the 	other
	hand,
	there
	is
	no
	evidence
	that
	the 	school
district
	governing 	board 	had 	any 	involvement 	whatsoever 	with
Barnes. 	There
	was 	no
	evidence 	the 	board 	took 	any 	formal
	action
to 	either 	hire
	him 	or
	fire
	him, 	or
	was 	even 	involved 	in 	the
31

decis~on. 	Rather,
	authorization
	for 	Barnes' 	suspensions
	came
from
	the
	Chancellor,
	who
	as
	indicated
	in 	the
	agreement
discussed
	above
	(Charging
	Party 	Exhibit
	4),
	was
	considered
	a
department
	head 	and
	appointing
	authority
	within 	the
	statutory
scheme
	established
	by
	the 	City
	and 	County
	of
	San
	Francisco.
(Tr.
	71)
Therefore,
	while
	SFCCD
	may
	technically
	meet
	the
	definition
of
	"public
	school 	employer," 	Barnes,
	and
	other
	similarly
situated
	county 	employees,
	do
	not
	meet
	the
	definition
	of
"public
	school
	employees"
	and
	are
	therefore
	not
	within
	PERB's
jurisdiction.
Nor
	are
	we
	persuaded
	to
	adopt
	a
	different
	conclusion
	by
	the
letter
	from
	the
	SFCCD
	to
	this·
agency
	dated
	March
	13,
	1986,
nrecognizing"
	United
	Public
	Employees,
	SEIU,
	Local
	790
	under
EERA.
	No
	evidence 	or 	testimony
	in
	this
	case 	has
	properly
	been
admitted
	such
	that
	we
	may
	take
	judicial 	notice.
	Furthermore,
in
	jurisdictional
	matters,
	parties
	cannot,
	by
	their 	action 	of
recognition, 	create 	jurisdiction
	where 	none
	exists
	under
	the
statutes.
In
	its
	holding, 	the 	majority 	opinion
	fails
	to 	consider 	the
various 	statutory
	schemes 	as
	a
	whole, 	nor 	does
	it
	come
	to 	terms
with
	the
	consequences
	that 	will 	inevitably
	flow 	from
	its
decision.
	As 	was
	stated
	by
	the 	court 	in
	Cory
	v.
	Poway
	Unified
School
	District
	(1983) 	147
	cal.App.3d 	1158, 	1168:
32

In
	applying
	the
	relevant
	statutes
	to 	these
facts,
	we
	are
	mindful
	of
	our
	duty
	to
	achieve
a
	result
	that
	is
	reasonable
	and
	comports
with
	the 	apparent
	purpose
	and
	intent
	of 	the
Legislature. 	[Citations.]
	Where
uncertainty
	exists,
	consideration
	should
	be
given
	to 	the
	consequences 	flowing
	from
	a
particular 	interpretation.
	The
	apparent
purpose
	of
	the
	legislation 	will
	not
	be
sacrificed
	to
	a
	literal
	construction.
[Citations.]
	A
practical
	construction
	is
preferred
	to
	one
	that
	is
	technical
	and
	is
required
	when
	the
	latter
	would
	lead
	to
mischief
	or
	absurdity.
	[Citations.]
Moreover,
	the 	various
	parts
	of
	a
	statutory
enactment
	must
	be
	harmonized
	by
	consideringthe
	particular
	clause
	or
	section 	in 	the
context 	of 	the
	statutory
	framework
	as
	a
whole.
	[Citations.]
In
	the
	present 	case,
	the 	purposes
	of 	the
	MMBA
	and
	EERA
	are
virtually 	identical,
	in
	that
	both
	statutory
	enactments 	seek
	"to
promote
	the
	improvement
	of 	personnel
	management 	and
employer-employee
	relations
	..•
	by
	providing
	a
	uniform
	basis
for 	recognizing 	the
	right
	of
	public 	[school]
	employees
	to
	join
organizations
	of
	their
	own
	choice
	and 	be
	represented
	by
	such
organizations 	in
	their
	[professional
	and] 	employment
relationships"
	with
	their
	employers.
	(Gov. 	Code
	secs.
	3500
	and
3540.)
	Further,
	EERA
	provides,
Nothing
	contained 	herein
	shall
	be 	deemed
	to
supersede 	other 	provisions 	of 	the 	Education
Code 	and
	the 	rules
	and
	regulations 	of 	publicschool 	employers 	which
	establish
	and
regulate 	tenure
	or 	a
	merit
	or
	civil
	servicesystem 	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 	employerdo
	not
	conflict
	with 	lawful 	collectiveagreements.
	(Gov. 	Code
	sec. 	3540.)
33

The
	intent
	of
	these 	provisions
	is
	to 	create
	a
	uniform
method
	by
	which
	public
	employees
	may
	exercise
	their
	statutory
rights.
	A
refusal
	by
	PERB
	to 	exercise
	jurisdiction
	under
	EERA
does
	not 	leave
	Barnes
	without
	a
	remedy.
	He
	can
	bring
	an
	action
under
	MMBA,
	Government
	code
	section
	3506,
12
and 	he
	can
	bring
a
	grievance
	action
	under
	the
	MOU,
	which
	likewise
	prohibits
discrimination
	for
	union
	activities,
	and
	culminates
	in 	binding
arbitration.
	(Charging
	Party
	Exh.
	1.)
In
	short,
	a
	harmonious
	reading 	of 	the
	Education
	Code,
	the
MMBA
	and
	EERA,
	and
	the
	charter
	and
	civil
	service 	rules
	of
	San
Francisco,
	compels
	the 	conclusion
	that
	the 	Legislature
	put
SFCCD
	in
	a
	status
	apart
	from
	other
	school
	districts,
	and
recognized 	the
	unique
	geopolitical 	characteristics
	of
	san
Francisco.
	In 	so
	doing, 	the
	Legislature
	intended 	to 	accord
	San
Francisco 	the
	ability
	to
	have 	one
	unified
	and
	cohesive
	labor
relations 	structure
	under
	its
	civil
	service
	system. 	That
purpose
	is
	not
	furthered
	by
	injecting
	an
	entirely
	new
	statutory
scheme
	into
	what
	appears 	to
	be 	a
	stable 	relationship.
I
	reject
	the
	majority's 	decision
	as
	it
	ignores 	the
	reality
of
	San
	Francisco's
	unique
	status
	as
	a
	chartered
	city
	and
12Government 	code
	section
	3506
	states:
Discrimination 	Prohibited.
Public 	agencies
	and 	employee
	organizations 	shall 	not
interfere 	with, 	intimidate, 	restrain,
	coerce, 	or
discriminate 	against 	public
	employees 	because 	of
	theirexercise 	of 	their 	rights
	under
	section
	3502.
34

county.
	The
	plethora
	of
	questions
	raised
	by
	the
	majority's
decision
	may
	haunt
	this
	Board
	for 	years 	to
	come.
Porter,
	Member,
	dissenting:
	I
	join 	chairperson 	Hesse's
dissent
	and
	write
	separately,
	simply
	to
	further
	emphasize
certain
	points.
The
	issue
	involved 	in
	this
	case 	concerns
	PERB's
jurisdiction
	over
	the 	controversy 	in 	question
	and,
	ultimately,
its
	jurisdiction
	over
	the 	labor
	relations
	between
	San
	Francisco
Community
	college
	District
	(SFCCD)
	and
	the
	San
	Francisco•city
and
	county 	(City
	and
	county)
	classified
	employees
	who
	are
. 	.
assigned 	to
	work
	there. 	Jurisdiction 	is
	a
	broad
	concept,
	and
resolution
	of
	this
	case 	cannot
	be
	reduced
	to 	the
	two
	simple
primary 	premises 	of 	the 	majority 	opinion,
	i.e.,
	(1) 	use
	of 	the
phrase
	"fix
	the
	duties
	of
	its
	employees"
	in
	Education
	Code
section
	88137
	denotes
	a
	measure
	of
	authority
	and
	control
	by
SFCCD
	over 	the
	classified
	employees
	sufficient
	to
	make
	those
employees
	"public 	school 	employees,"
	and 	(2)
	legislative
failure
	to
	specifically
	exempt
	SFCCD
	from
	EERA
	indicates
	a
legislative 	intent 	that
	such 	employees
	come
	under
	the 	Board's
authority.
Jurisdiction
	has 	been 	described
	by
	the 	California
	supreme
court 	in 	the 	leading 	case 	of 	Abelleira 	v.
	District 	court 	of
Appeal 	(1941) 	17
	cal.2d
	280, 	in 	which
	the 	court 	stated:
35

Lack 	of 	jurisdiction 	in 	its 	most 	fundamental
or 	strict 	sense 	means 	an 	entire 	absence 	of
power 	to 	hear 	or 	determine 	the 	case, 	an
absence 	of 	authority 	over 	the 	subject 	matter
or 	the 	parties. 	[Citation] •.•. 	But 	in
its 	ordinary 	usage, 	the 	phrase 	nlack 	of
jurisdiction" 	is 	not 	limited 	to 	these
fundamental 	situations 	..•. 	[I]t 	may 	be
applied 	to 	a 	case 	where, 	though 	the 	court
has 	jurisdiction 	over 	the 	subject 	matter 	and
the 	parties 	in 	the 	fundamental 	sense, 	it 	has
no 	"jurisdictionn 	(or 	power) 	to 	act 	except
in 	a 	particular 	manner, 	or 	to 	give 	certain
kinds 	of 	relief, 	or 	to 	act 	without 	the
occurrence 	of 	certain 	procedural
prerequisites.
(Id. 	at 	288.) 	The 	court 	later 	quoted 	a 	previous 	decision 	in
which 	it 	had 	said,
The 	difficulty 	arises 	from 	the 	different
shades 	of 	meaning 	which 	the 	word
"jurisdiction" 	has. 	As 	sometimes 	used, 	it
means 	simply 	authority 	over 	the 	subject
matter 	or 	question 	presented. 	In 	this
sense, 	the 	commission 	undoubtedly 	had
jurisdiction 	in 	this 	case, 	and 	its 	award 	was
not 	without 	jurisdiction 	on 	its 	part. 	But
the 	word 	is 	frequently 	used 	as 	meaning
authority 	to 	do 	the 	particular 	thing 	done,
or, 	putting 	it 	conversely, 	a 	want 	of
jurisdiction 	frequently 	means 	a 	want 	of
authority 	to 	exercise 	in 	a 	particular 	manner
a 	power 	which 	the 	board 	or 	tribunal 	has, 	the
doing 	of 	something 	in 	excess 	of 	the
authority 	possessed. 	[Citations 	o~itted.] 	·
Id. 	at 	290, 	citing 	Spreckels 	s. 	co. 	v. 	Industrial 	Accident
Commission 	186 	Cal. 	256, 	260 	[199 	Pac. 	8, 	9). 	Thus, 	the 	Board
must 	first 	find 	that 	there 	is 	jurisdiction 	over 	the 	parties 	and
the 	subject 	matter 	and, 	finding 	that, 	must 	also 	determine 	that
the 	relief 	sought 	is 	within 	PERB's 	jurisdiction 	to 	grant.
Turning 	to 	the 	question 	of 	jurisdiction 	in 	this 	case, 	then,
the 	necessary 	parties 	involved 	in 	this 	matter 	include 	the
36

Charging 	Party, 	SFCCD 	and, 	in 	addition, 	the 	City 	and 	county.
The 	City 	and 	county 	is 	a 	necessary 	party, 	in 	that 	it 	is
undisputedly 	the 	employer 	of 	Charging 	Party, 	a 	fact 	conceded 	by
Charging 	Party 	himself. 	Charging 	Party 	was 	suspended 	and
terminated 	pursuant 	to 	the 	civil 	service 	rules 	and 	procedures
of 	the 	City 	and 	county; 	both 	the 	termination 	hearing 	and 	its
binding 	effect 	were 	pursuant 	to 	the 	civil 	service 	rules 	and 	the
charter 	of 	the 	city 	and 	county; 	Charging 	Party's 	right 	to 	have
the 	termination 	decision 	based 	solely 	on 	merit 	was 	created 	by
charter, 	and 	his 	right 	not 	to 	be 	discriminated 	against 	for
participation 	in 	union 	activities 	was 	granted 	by 	both 	the 	MOU
negotiated 	between 	the 	City 	and 	county 	and 	SEID 	under 	the
Meyers-Milias-Brown 	Act 	(MMBA) 	and 	by 	the 	MMBA 	itself; 	the 	City
and 	county 	granted 	his 	request 	to 	transfer 	to 	a 	different
department 	of 	the 	City 	and 	county 	and 	changed 	his 	job
classification 	in 	the 	process; 	and 	the 	city 	and 	county's 	civil
service 	Commission 	ruled 	him 	ineligible 	for 	reemployment 	in
SFCCD. 	Given 	these 	factors, 	it 	is 	clear 	the 	city 	and 	county
must 	be 	a 	participant 	in 	these 	proceedings. 	Nevertheless, 	PERB
has 	no 	jurisdiction 	over 	the 	City 	and 	county, 	as 	it 	is 	a 	local
agency 	under 	the 	MMBA, 	and 	not 	a 	school 	district.
Additionally, 	as 	discussed 	in 	the 	chairperson's 	dissent,
Barnes 	does 	not 	meet 	EERA's 	definition 	of 	"public 	school
employee" 	since 	he 	is 	"employed 	by" 	the 	City 	and 	county.
Absent 	a 	more 	sufficient 	showing 	of 	Barnes' 	employment 	by
SFCCD, 	PERB 	has 	no 	jurisdiction 	over 	the 	very 	person 	bringing
37

this 	action.
	It
	requires
	no
	further
	discussion
	to
	reach
	the
conclusion
	that,
	lacking
	jurisdiction
	over
	two
	of 	the
	three
necessary
	parties, 	jurisdiction
	over
	the
	third
	party
	is
irrelevant.
PERB
	unquestionably
	has
	general
	subject
	matter
	jurisdiction
over
	claims
	that
	a
	public
	school
	employer
	discriminated
	against
a
	public
	school
	employee
	because 	of
	the
	employee's
	exercise
	of
rights
	protected
	under
	EERA.
	Since
	Barnes
	is
	not
	a
	public
school
	employee,
	he
	does
	not
	have 	any
	protected 	rights
	under
EERA.
	consequently,
	he
	is
	attempting 	to
	vindicate 	rights
protected
	under
	MMBA
	and
	the
	charter
	of 	the 	City
	and
	county.
Thus,
	PERB
	has
	no
	subject
	matter
	jurisdiction.
Finally,
	as
	to
	jurisdiction
	to
	accord
	relief,
	the
	customary
remedy
	for
	a
	claim 	of
	discriminatory 	suspension/termination
	is
a
	cease
	and
	desist 	order,
	along 	with
	reinstatement
	and
	back
pay.
	As
	discussed
	above, 	however,
	there
	has 	been
	a
	final,
binding
	civil
	service
	hearing
	and
	decision,
	and
	the
	civil
service
	commission
	has
	ruled
	Charging
	Party
	ineligible
	for
future
	employment
	in
	SFCCD.
	Lacking
	that
	eligibility,
	SFCCD
	is
not
	empowered
	to
	reinstate
	Barnes.
	Similarly,
	he
	is
	paid
	by
the
	city
	and
	county,
	even
	when
	assigned 	to
	SFCCD.
	SFCCD
	could
not 	pay
	him 	back
	pay,
	and
	clearly
	PERB
	could 	not 	order 	the 	City
and
	county 	to
	do
	so.
	The
	cease
	and
	desist
	remedy, 	even
	if
directed 	solely 	at
	SFCCD, 	would 	have
	little
	meaning
	in
	this
case, 	given 	charging 	Party's 	ineligibility
	for 	future
employment 	in
	SFCCD. 	Thus, 	the 	Board
	is 	without 	jurisdiction
38

to 	render
	any
	kind
	of
	meaningful
	remedy, 	and
	hence
	is
	without
jurisdiction.
	(Corona
	Unified
	Hospital
	District
	v.
	superior
court
	(1964)
	61
	cal.2d
	846,
	852;
	Fortenberry
	v.
	superior
	court
(1940)
	16
	cal.2d
	405,
	407-08.)
Assuming
	arguendo
	the
	majority
	opinion
	is
	correct
	in
	its
conclusion
	that
	PERB
	has
	jurisdiction,
	the 	question
	that
	should
then
	be
	confronted
	is
	whether
	it
	would
	further
	the 	purposes 	of
EERA
	to
	assert 	that 	jurisdiction
	in
	this
	case.
	As
	stated
	in
Government
	Code
	section
	3540,
	the 	purpose 	of 	the
	Act
	is 	"to
promote
	the
	improvement
	of 	personnel
	management 	and
	employer-
employee
	relations
	within 	the 	public
	school
	systems
	II
• 	• 	• 	I
but 	nothing 	contained 	in
	EERA
shall
	be 	deemed
	to
	supersede
	other
provisions 	of 	the 	Education
	Code
	and
	the
rules
	and
	regulations
	of 	public
	schoolemployers
	which
	establish
	and
	regulatetenure
	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.
	(Emphasis
	added.)
In
	this
	case, 	the 	record
	shows
	that
	SFCCD
	is
	a
	department
	of
the
	City
	and
	county 	(Charging
	Party
	Exh. 	4)
	and, 	as 	such,
	is
subject 	to 	the 	City
	and
	county
	Charter, 	the
	Employment
Relations 	ordinance, 	the
	MOU
	negotiated
	by
	the 	City
	and
	county
and 	SEIU, 	and
	the 	Civil 	service
	commission 	Rules. 	These
	four
documents 	provide
	a
	very 	thorough 	method
	of 	administering
employer-employee
	relations,
	and 	give 	to 	Barnes 	and
	similarly
situated
	employees
	all
	of 	the 	rights
	and
	protections 	afforded
39

to 	other 	public 	school 	employees 	under 	EERA. 	Indeed, 	Barnes
has 	more 	protection 	than 	classified 	employees 	of 	other 	school
districts, 	in 	that 	his 	termination 	from 	the 	district 	was
determined 	by 	a 	binding 	hearing 	officer 	decision 	(cf. 	United
Steelworkers 	of 	America, 	Local 	8599, 	AFL-CIO 	v. 	Board 	of
Education 	of 	the 	Fontana 	Unified 	School 	District 	(1984) 	162
cal.App.3d 	823 	[209 	cal.Rptr. 	16]; 	he 	had 	the 	right 	to 	argue,
and 	did, 	in 	fact, 	argue 	that 	the 	recommendation 	for 	termination
was 	based 	on 	discrimination 	or 	retaliation 	for 	his 	involvement
in 	protected 	union 	activites 1 ; 	and 	following 	an 	adverse
decision, 	Barnes 	nevertheless 	continued 	to 	be 	employed 	by 	the
City 	and 	county, 	albeit 	in 	a 	different 	department, 	but 	one 	to
which 	he 	had 	previously 	sought 	and 	obtained 	a 	transfer.
If 	this 	were 	a 	case 	of 	an 	employee 	lacking 	protection 	in
the 	absence 	of 	PERB's 	assertion- of 	jurisdiction, 	asserting
jurisdiction 	would 	be 	understandable. 	However, 	such 	is 	not 	the
case 	here, 	where 	the 	employee 	already 	enjoys 	all 	of 	the 	rights
and 	protections 	afforded 	employees 	generally 	under 	EERA.
Therefore, 	no 	purpose 	is 	served 	by 	PERB 	asserting 	jurisdiction.
Indeed, 	assertion 	of 	jurisdiction 	would 	contradict 	the 	purpose
of 	the 	MMBA, 	the 	City 	and 	county's 	Employee 	Relations 	Ordinance
lr 	would 	take 	official 	notice 	of 	Hearing 	Officer 	Alonzo
Field's 	binding 	decision 	in 	which 	Barnes 	raised 	retaliation 	as
a 	defense. 	This 	decision 	is 	part 	of 	the 	official 	record 	of 	the
Civil 	service 	Commission 	and, 	therefore, 	may 	appropriately 	be
the 	subject 	of 	official 	notice. 	See, 	Agostini 	v. 	strycula
(1965) 	231 	Cal.App.2d 	804, 	806.
40

and
	EERA
	itself,
	to
	the
	extent
	the
	purpose
	of 	those 	enactments
is
	to
	provide
	a
	uniform
	basis
	for
	employees
	to 	exercise
	their
rights
	to
	representation.
	As
	a
	result
	of
	the 	majority
	opinion,
City
	and
	c6unty
	employees
	will
	not
	have
	a
	uniform
	basis, 	since
those
	employees
	who
	happen
	to
	be
	assigned 	to
	SFCCD
	at
	any
	given
time
	will
	enjoy
	an
	entirely
	new
	and
	additional
	layer
	of
employment
	relations
	provisions.
	Obviously,
	assertion
	of
jurisdiction 	is
	clearly
	unwarranted, 	given 	the
	facts
	in
	this
case.
The
	majority
	opinion
	cites 	Pacific
	Legal 	Foundation
	v.
Brown
	(1981)
	29
	cal.3d
	168
	as
	authority
	for
	its
	conclusion
	that
providing
	Barnes
	with
	a
	forum,
	through
	PERB,
	for 	redress 	of
alleged 	unfair 	practices
	does
	not
	interfere
	with
	the
	protections
given
	employees 	under
	the
	City's
	merit
	system.
	However,
	the
question
	faced
	by
	the 	court
	was
	the
	constitutionality
	of
	SEERA
on
	its
	face.
	The
	court
	merely
	held
	that
	the
	potential
	overlap
in
	jurisdiction
	between
	PERB
	and
	the
	state
	Personnel
	Board
provided
	no
	basis
	for 	finding 	the 	applicable 	provisions 	of
SEERA
	unconstitutional
	on
	their
	face. 	Id.
	at
	200. 	This
	case,
however,
	presents
	numerous
	distinctions 	that
	render
	Pacific
Legal 	Foundation 	of 	dubious
	relevance.
	For
	example, 	the
	City
and
	county 	has 	an 	Employee
	Relations
	Ordinance
	that
incorporates·the
	MMBA
	and 	makes
	those 	terms
	specifically
enforceable
	by
	the
	civil
	service
	commission. 	The
	MMBA
	is
likewise 	applicable 	in 	that
	Barnes
	is
	an 	employee
	of 	the 	City
41

and 	county. 	The 	MOU 	negotiated 	under 	the 	MMBA 2 prohibits
discrimination 	on 	the 	basis 	of 	an 	employee's 	participation 	in
protected 	activity, 	and 	provides 	for 	binding 	arbitration.
Thus, 	Barnes 	already 	has 	at 	least 	three 	forums 	for 	redress 	of
the 	alleged 	unfair 	practice 	asserted 	in· 	this 	case. 	Adding 	a
fourth 	forum, 	with 	the 	added 	potential 	for 	conflicting
resolutions, 	can 	hardly 	be 	said 	not 	to 	interfere, 	especially
considering 	the 	stated 	purposes 	of 	uniformity. 	Additionally,
this 	case 	does 	not 	present 	a 	question 	in 	the 	abstract 	but,
rather, 	involves 	an 	actual 	situation 	in 	which 	Barnes 	has
already 	litigated 	the 	issue 	of 	discrimination 	for 	protected
activity 	and 	has 	received 	an 	unfavorable 	ruling, 	binding 	on
himself, 	the 	SFCCD 	and 	the 	civil 	service 	commission. 	The 	civil
service 	Commission 	has 	acted 	on 	the 	decision, 	ruling 	Barnes
ineligible 	for 	future 	employment 	in 	SFCCD. 	Assertion 	of
jurisdiction 	can 	do 	nothing 	but 	conflict 	with 	the 	binding
nature 	of 	those 	decisions.
In 	conclusion, 	I 	would 	dismiss 	this 	action, 	on 	the 	ground
that 	PERB 	lacks 	jurisdiction 	or, 	alternatively, 	should 	refrain
from 	exercising 	it.
2Barnes 	himself 	served 	as 	a 	member 	of 	the 	negotiating
team 	that,negotiated 	that 	MOU, 	and 	was 	a 	signatory 	to 	the
agreement.
42