Roseville Joint Union High School District (PERB 0580E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	ROSEVILLE
HIGH CHAPTER NO. 	459,
Charging 	Party,
v.
ROSEVILLE 	JOINT 	UNION HIGH
SCHOOL 	DISTRICT,
Respondent.
Case No. 	S-CE-890
PERB Decision No. 	530
June 30, 	1986
Appearances; 	William C. 	Heath, 	Attorney for 	California School
Employees 	Association and 	its 	Roseville High Chapter No. 	459;
Kronick, 	Moskovitz, 	Tiedemann & Girard by Robert A. 	Rundstrom
for 	Roseville 	Joint 	Union High 	School 	District.
Before Hesse, 	Chairperson; 	Morgenstern and Burt, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is before the 	Public
Employment 	Relations 	Board 	(PERB or Board) 	on appeal 	of a
dismissal by a 	PERB 	regional 	attorney. 	The 	Charging 	Party,
California 	School 	Employees 	Association 	and 	its 	Roseville 	High
Chapter No. 	459 	(CSEA), 	alleges that the Respondent, 	Roseville
Joint 	Union High School 	District 	(District), 	violated 	section
3543.5(a), 	(b) 	and 	(c) of the Educational Employment Relations
Act 	(EERA)1 by unilaterally 	transferring bargaining 	unit 	work	1
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Section 3543.5 provides, 	in pertinent part, 	as follows:
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to prisoners 	from 	Folsom 	Prison 	and 	to 	individuals 	providing
community 	service 	through 	the 	Placer 	County 	Drunk 	Driving
Program.2 The 	regional 	attorney dismissed 	the 	unfair
practice 	charge 	after 	concluding 	that 	the 	use 	of 	free prisoner
labor 	was 	authorized 	by 	the 	parties' 	collective 	bargaining
agreement (Agreement).
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.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet 	and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
FACTUAL 	AND 	PROCEDURAL 	HISTORY
Specifically, 	the charge 	alleges 	that, 	on December 	15
and 	16, 	1984, 	individuals provided by the 	Placer County Drunk
Driving 	Program performed 	duties 	such 	as 	cleaning 	classrooms
and 	changing 	light 	fixtures 	on District property. 	It 	is 	also
alleged that, 	on December 20 and 21, 	1984, 	prisoners 	from
Folsom 	State 	Prison performed preparation 	work 	for 	concrete
2While 	the 	individuals 	in 	the 	latter 	group are 	not
literally 	"prisoners," 	for 	convenience, 	we will 	refer 	to both
groups 	collectively 	as prisoners.
CSEA also 	alleged 	that 	the 	District 	failed 	to provide
necessary 	information 	concerning 	the 	use 	of 	the 	prisoner 	labor;
however, 	the 	dismissal 	of 	that 	allegation was 	not 	appealed.
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installation on 	District property. 	The 	District does 	not 	deny
these 	facts 	but 	maintains 	that 	the 	work 	would not have 	been
done 	absent 	the 	availability of 	free prisoner 	labor, 	and that,
in any case, 	the use of 	such 	labor 	falls 	within 	its 	contractual
right 	to 	"contract 	out work."
Article 	2 of the Agreement reads, 	in pertinent part:
It 	is 	understood 	and 	agreed 	that 	the 	Board
retains 	all 	of 	its 	powers 	and 	authority 	to
direct, 	manage, 	and control to the 	fullest
extent 	of 	the 	law. 	Included 	in, 	but not
limited to, 	those duties 	and powers 	are 	the
exclusive 	right 	to: 	. . . 	contract 	out 	work,
except 	where 	prohibited by 	law; 	. . . .
In his warning letter of May 23, 	1985 	to Charging Party, 	the
regional 	attorney 	assumed 	that 	the 	use 	of 	free 	prisoner 	labor
represented 	contracting 	out 	as 	contemplated by Article 	2 	and
focused 	only 	on whether 	such 	contracting 	out 	was 	otherwise
prohibited by law. 	Assuming 	for 	the purpose 	of 	analysis 	that
the 	subcontracting 	of 	janitorial 	services 	is 	prohibited by
Education Code 	section 	(Ed. 	Code 	sec.) 	45103,3 the 	regional
3This 	was 	the 	conclusion of 	the 	Court 	of Appeal 	in CSEA v.
Willits 	Unified School 	District 	(1966) 	Cal.App.2d 	776. 	Ed. 	Code
sec. 	45103 	states 	that, 	with certain enumerated exceptions,
school 	districts 	must 	employ persons 	for positions 	not 	requiring
certification, 	and 	that 	such 	employees 	and positions 	shall 	be
classified. 	The Willits 	court held 	that 	Ed. 	Code 	sec. 	45103
requires 	janitors 	to be 	classified 	employees 	of 	the 	school
district and, 	thus, 	janitorial work cannot be 	subcontracted.
The 	District 	maintains 	that 	the 	Willits 	decision 	turned 	on
the 	principle 	that 	school 	districts 	could 	lawfully 	contract 	only
as 	provided by 	statute, 	and 	that 	this 	principle 	was 	overruled by
section 3 5160 of the Education Code, 	which was added 	in 1976.
Ed. 	Code sec. 	35160 states:
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attorney 	cited Arcohe 	Union 	School 	District 	(1983) 	PERB Decision
No. 	360 	for 	the proposition that, 	since Ed. 	Code 	sec. 	45103 	sets
an 	"inflexible 	standard," 	the 	subcontracting of 	janitorial
services 	is 	a 	nonnegotiable preempted 	subject. 	He 	then
concluded 	that, 	since 	the 	subject 	is 	outside the 	scope of
negotiations, 	there 	could be 	no unilateral 	change. 	To the
extent 	that 	the 	work was 	of a nonjanitorial nature, 	the 	regional
attorney 	found 	that 	it was 	expressly 	authorized by Public
Contracts 	Code 	sections 	20114 	and 	20115.4
On and after January 	1, 	1976, 	the 	governing
board 	of 	any 	school 	district 	may 	initiate
and carry on any program, 	activity, 	or may
otherwise 	act 	in any manner which 	is 	not 	in
conflict with or 	inconsistent with, 	or
preempted by, 	any law and which 	is 	not 	in
conflict 	with 	the purposes 	for 	which 	school
districts 	are 	established.
4Section 	20114 	states:
In 	each 	school 	district, 	the governing board
may make repairs, 	alterations, 	additions, 	or
painting, 	repainting, 	or decorating upon
school buildings, 	repair 	or build apparatus
or equipment, 	make 	improvements 	on the
school grounds, 	erect new buildings, 	and
perform 	maintenance 	as 	defined 	in 	Section
20115 by day 	labor, 	or by 	force 	account,
whenever 	the 	total 	cost 	of 	labor 	on the 	job
does 	not 	exceed 	seven 	thousand 	five hundred
dollars 	($7,500), 	or the total number of
hours 	on the 	job does 	not 	exceed 	350 hours,
whichever 	is greater, 	provided 	that 	in any
school 	district 	having 	an 	average 	daily
attendance 	of 35,000 or greater, 	the
governing board may, 	in addition, 	make
repairs to school buildings, 	grounds,
apparatus 	or 	equipment, 	including painting
or 	repainting, 	and perform maintenance 	as
defined 	in Section 	20115, 	by day 	labor 	or by
force 	account whenever 	the 	total 	cost 	of
labor 	on 	the 	job does 	not 	exceed 	fifteen
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thousand dollars 	($15,000), 	or the total
number 	of hours 	on the 	job does 	not 	exceed
750 hours, 	whichever 	is greater.
For purposes 	of 	this 	section, 	day labor
shall 	include 	the 	use 	of 	maintenance
personnel 	employed 	on 	a permanent 	or
temporary basis.
Section 20115 	states, 	in pertinent part:
For purposes of Section 	20114, 	"maintenance"
means 	routine, 	recurring, 	and usual work 	for
the preservation, 	protection, 	and keeping of
any publicly 	owned 	or 	publicly 	operated
facility 	for 	its 	intended purposes 	in a 	safe
and 	continually 	usable 	condition 	for 	which
it was designed, 	improved, 	constructed,
altered, 	or 	repaired. 	"Facility" means any
plant, 	building, 	structure, 	ground facility,
utility system, 	or 	real property.
This 	definition of 	"maintenance" 	expressly
includes, 	but 	is not 	limited to: 	carpentry,
electrical, 	plumbing, 	glazing, 	and other
craftwork 	designed 	consistent 	with 	the
definition 	set 	forth 	above 	to preserve 	the
facility in a safe, 	efficient, 	and
continually 	usable 	condition 	for 	which 	it
was 	intended, 	including repairs, 	cleaning,
and 	other 	operations 	on machinery 	and 	other
equipment 	permanently 	attached 	to 	the
building 	or 	realty as 	fixtures.
This definition does 	not 	include, 	among
other 	types 	of work, 	janitorial 	or custodial
services 	and protection of 	the 	sort provided
by guards 	or 	other 	security 	forces.
Though CSEA did 	not 	formally amend 	its 	charge, 	it 	did
clarify 	its 	theory 	of 	the 	case 	in 	communications 	with 	the
regional 	attorney. 	CSEA asserted 	that 	its 	charge 	alleged 	a
"transfer" 	of 	unit work 	to other 	"employees," 	not 	the
"contracting out" 	of unit work and, 	thus, 	the District's
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contractual 	right 	to 	subcontract 	is 	inapplicable. 	In his
dismissal 	letter of June 	26, 	1985, 	the 	regional 	attorney relied
on Goleta Union School District 	(1984) 	PERB Decision No. 	391 	in
determining 	that 	the prisoners 	were 	not 	"employees" 	of 	the
District 	and, 	therefore, 	the use of 	such workers 	could 	not
constitute 	the 	"transfer" 	of unit work. 	In Goleta, 	the Board
held 	that 	a particular 	group of 	counselors 	were 	"employees"
of 	the 	district, 	therefore, 	the 	transfer 	of unit work 	to these
counselors 	did 	not 	fall 	within 	the 	district's 	contractual 	right
to contract 	out.
DISCUSSION
On appeal, 	CSEA argues 	that, 	though 	the prisoners 	are 	not
literally 	"employees" 	of 	the 	District, 	their 	relationship to 	the
District 	"resembles" 	that of employees 	and, 	in any case, 	the
situation 	is more 	akin to a 	transfer 	of work 	to non-unit
employees 	than 	it 	is 	to 	subcontracting. 	CSEA also argues 	that,
because 	the prisoners 	are 	not paid 	for 	their 	services, 	traditional
indicia 	of 	employment 	and 	subcontracting 	are 	of 	limited 	value.
Further, 	CSEA argues 	that 	the bargain 	struck between 	the 	parties
at 	the bargaining 	table 	did not 	contemplate 	the 	use 	of 	unpaid
labor. 	Lastly, 	CSEA maintains 	that 	substantial 	issues 	of 	fact
are 	in dispute, 	requiring a hearing 	for 	their 	resolution.
First, 	we believe 	the 	regional 	attorney misapplied 	the 	Board's
decision 	in Arcohe, 	supra. 	Finding 	that a unilateral 	change 	is
precluded 	because 	the 	subcontracting 	of 	janitorial 	work 	is
prohibited by Willits and Ed. 	Code 	sec. 	45103 and, 	thus, 	outside
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the 	scope of 	negotiations, 	the 	regional 	attorney viewed 	the 	only
remaining 	issue 	as 	whether 	the 	use 	of 	free 	prisoner 	labor
constituted 	"contracting out." 	However, 	the holdings 	in Willits
and Arcohe 	do not preclude 	a 	finding 	of 	a 	unilateral 	change
where, 	as here, 	the parties' 	Agreement 	is co-extensive with any
legal 	prohibitions 	against 	contracting 	out.
In Arcohe, 	the Board held that, 	because Ed. 	Code sec. 	45103,
as 	interpreted 	in Willits, 	sets 	an 	"inflexible 	standard," 	the
contracting out 	of 	janitorial 	services 	is 	a nonnegotiable,
preempted 	subject. 	However, 	the 	Board was 	careful 	to point 	out
that 	the 	parties 	were 	not 	precluded 	from 	discussing proposals 	to
incorporate 	the 	Education 	Code 	prohibition 	into 	their 	contract,
or 	from broadening 	the prohibition. 	Notably, 	because 	such
proposals 	would be 	lawful, 	the 	Board held 	in Arcohe 	that 	the
employer's 	unilateral 	decision 	to contract 	out 	for 	janitorial
work 	did 	constitute 	a 	refusal 	to bargain.
In the 	instant 	case, 	the parties have 	in 	fact 	incorporated
into 	their 	Agreement 	the 	prohibition 	against 	contracting 	out 	for
janitorial 	services 	by providing 	that 	the 	District 	could 	contract
out 	"except where prohibited by law." 	Thus, 	to the 	extent 	that
the 	District's 	actions 	constituted 	"contracting 	out" 	and 	involved
janitorial 	work, 	this 	violated not 	only 	the 	Education Code but
also 	the Agreement. 	Such a breach 	reflects 	a change of 	continuing
impact 	on negotiated policy and, 	therefore, 	would constitute 	an
unlawful 	unilateral 	change. 	Grant 	Joint 	Union High 	School
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District 	(1982) 	PERB 	Decision No. 	196.5 Whether 	janitorial
services 	were 	involved 	is 	a disputed 	fact 	that 	can be properly
resolved 	only after 	an evidentiary hearing. 6	6
Implicit 	in our 	analysis 	above 	is 	the 	rejection of 	the
District's 	assertion 	that Willits 	was 	effectively 	overruled by
the 	addition of 	section 35160 	to the 	Education Code. 	Ed. 	Code
sec. 	35160 clearly overrules 	a 	long 	line 	of 	cases 	that held 	that
school 	districts 	have 	the 	power 	to 	contract 	only as 	provided by
statute. 	See, 	e.g., 	Grasko v. 	Los Angeles City Board of Education
(1973) 	31 	Cal.App.3d 	290. 	While 	the Willits 	court did consider
this 	now antiquated principle, 	it 	did 	so only 	in deciding 	that
Ed. 	Code 	secs. 	15801 and 15955 	(now sections 39644 and 39600,
respectively) 	did not 	confer 	any 	statutory 	authority 	to 	contract
out 	janitorial 	services.
5SBy	ay 	application of Grant, 	supra, 	we necessarily reject
the 	Chairperson's 	legal 	conclusion 	expressed 	in her 	dissent
that 	the 	District's 	conduct 	"is 	at most 	a breach of contract."
Moreover, 	a 	contract 	interpretation dispute 	that 	is 	also an
unfair practice 	is 	not 	an 	issue 	that 	"must be 	resolved by an
arbitrator" 	unless 	the parties' 	agreement 	contemplates binding
arbitration. 	In 	this 	case, 	neither 	the 	Chairperson 	in her
dissent 	nor 	the 	District makes 	the 	assertion that 	it 	does.
66we	we 	specifically 	reject 	the 	Chairperson's 	factual
conclusions 	that 	the work 	that was 	"contracted out" 	was 	not
regular 	janitorial 	or maintenance work, 	that 	it would not have
been done 	if 	the prisoners were unavailable, 	and that only
overtime 	work 	was 	affected. 	The 	first 	two 	issues 	are 	in dispute
and, 	therefore, 	are 	not properly decided 	in the 	context 	of
reviewing 	a dismissal. 	San Juan Unified 	School 	District 	(1977)
EERB Decision No. 	12. 	(Prior to January 1, 	1978, 	PERB was known
as 	the 	Educational 	Employment 	Relations 	Board.) 	With 	regard 	to
the 	overtime 	work 	finding, 	this Board has 	found an EERA
violation based 	on 	the 	lost 	opportunity 	to earn overtime. 	See
Lincoln Unified School District 	(1984) 	PERB Decision No. 	465.
8
6

The main 	focus 	of 	the Willits 	court was 	its 	interpretation
of Ed. 	Code sec. 	13581 	(now section 45103). 	The court expressly
held 	that 	this 	section prohibited 	the 	contracting 	out 	of
janitorial 	services.77 Thus, 	while Ed. 	Code 	sec. 	35160 	indeed
gives 	school 	districts broad 	authority, 	that 	authority 	is
restricted 	to 	activities 	that 	are 	" . . . 	not 	in conflict 	with 	or
inconsistent with, 	or preempted by, 	any law . 	. 	. 	." 	It is,
therefore, 	reasonable 	to conclude 	that, 	while public 	school
districts have been granted 	the 	authority to contract, 	that
authority 	is 	limited 	when 	expressly prohibited by 	law. 	The
Willits 	court's 	interpretation of 	Ed. 	Code 	sec. 	45103 	represents
such a prohibition.8
The 	remaining 	issue 	concerns 	the proper 	characterization 	of
the 	use of 	free prisoner 	labor. 	The 	regional 	attorney and 	the
parties 	have 	analyzed 	this 	issue 	by applying 	various 	traditional
criteria 	for 	distinguishing between 	employees 	and 	independent
contractors. 	While 	this 	approach is helpful, 	the emphasis 	is
more 	properly placed 	on 	determining 	whether 	the 	District's
contractual 	right 	to 	"contract 	out" 	work 	encompasses 	the
7 While 	the 	court's 	rationale 	could be 	used 	to 	support 	the
argument 	that, 	absent 	express 	statutory authority, 	the
contracting out 	of 	all 	classified work 	is prohibited, 	the 	court
expressly 	limited 	its 	holding 	to 	janitorial 	services. 	We 	agree
with 	the 	regional 	attorney 	that 	the 	contracting out 	of 	concrete
installation work 	is 	authorized by 	Public 	Contracts 	Code
sections 	20114 and 	20115.
8Our 	research has 	revealed 	no other 	basis 	for 	concluding
that Willits has been overruled, 	either 	expressly or 	impliedly.
99

situation 	involved here. 	For 	example, 	the 	District's 	action
might 	resemble 	neither 	a 	transfer 	of 	work 	to other 	employees 	nor
subcontracting, 	in which case 	the 	District 	could not 	use
Article 	2 of 	the Agreement 	as 	a defense.
The 	regional 	attorney made 	the 	following 	observations 	in
determining 	that 	the prisoners 	were 	not 	"employees" 	of 	the
District:
. 	. 	. 	the District had work 	for whomever was
provided by 	Folsom 	State 	Prison 	or 	the
Placer 	County Probation Department. 	These
individuals 	had 	no 	contractual 	relationship
with 	the 	District 	nor 	did 	they perform
on-going work 	for 	the 	District. 	There 	was
no written 	contract between 	the 	District 	and
either 	the prison or 	the probation
department.
There 	is 	no 	indication 	that 	the 	District
could 	decide 	how 	many 	or 	which 	individuals
were provided. 	. 	. 	. 	the District had no
part 	in deciding what pay, 	if any, 	or what
non-monetary 	compensation 	would 	be 	given 	to
participants 	in the programs. 	Although there
is 	a 	factual 	dispute 	over 	the 	extent 	these
individuals 	were 	supervised by 	District
employees, 	it appears 	that evaluation of an
individual's 	performance 	was 	done by 	the
Prison or Probation Department staff. 	. 	. 	.
While 	these 	indicia might 	support 	the 	conclusion 	that 	the
prisoners 	are 	not 	"employees" 	of 	the 	District, 	they do not
conclusively 	establish 	that 	the 	use 	of 	the 	prisoners 	constituted
"contracting 	out." 	We believe 	that 	this 	issue 	can be 	fairly
determined 	only with 	the benefit 	of 	a 	full 	factual 	record
reflecting 	the 	exact 	nature 	of 	the 	work 	done, 	the 	extent 	of
supervision and 	control provided by 	the 	District, 	and 	the 	terms
and 	nature 	of 	the 	arrangements 	made between 	the 	District 	and 	the
10

two prisoner programs. 	Evidence of 	the parties' 	negotiating
history might 	also be 	probative 	of 	the breadth and meaning 	of
the 	District's 	right 	to 	"contract out" 	work.99
In 	sum, 	we hold 	that 	CSEA has 	stated 	a prima 	facie 	case10	10
of 	a 	unilateral 	change 	in a matter 	within the 	scope 	of
negotiations.11	11 A hearing 	is 	necessary 	to determine 	if 	the
District's 	actions 	constituted 	"contracting 	out" 	within 	the
9 The 	Chairperson posits 	that 	it 	is 	unnecessary 	to 	ascertain
what 	the parties agreed to by contract. 	We disagree. 	Here, 	as
in Goleta, 	supra, 	the distinction between transfer of work 	and
contracting out 	is 	critical because 	the parties' 	Agreement, 	by
its 	terms, 	covers 	only the 	latter. 	The Chairperson's position
that 	there 	is 	no distinction between 	the 	transfer 	of 	work 	and
contracting out 	would 	overrule 	Goleta 	and 	is 	contrary 	to 	the
commonly-accepted 	definitions 	of 	the 	two 	terms.
10The 	District 	objects 	to 	the 	consideration of 	factual
allegations 	presented 	to 	the 	regional 	attorney but 	not 	made part
of a 	formal 	amended 	charge. 	While 	this 	argument has merit, 	we
nonetheless 	find 	a 	prima 	facie 	case 	based 	solely 	on 	the 	original
charge. 	The 	charge 	described 	in some 	detail 	the 	use 	of 	free
prisoner 	labor, 	and 	clearly alleged 	that 	unit 	work 	was 	affected.
Further, 	the 	charge 	asserts 	that 	the 	District acted without
legal 	right 	and 	without 	affording 	notice 	and 	an 	opportunity 	to
bargain. 	Additional 	facts 	alleged 	in CSEA's 	appeal 	of 	the
dismissal 	pertain 	almost 	exclusively 	to 	the 	District's 	control
and direction of 	the prisoners' 	work, 	in support of 	the
proposition 	that 	the prisoners 	are 	akin 	to 	employees 	of 	the
District. 	Though we believe 	a prima 	facie 	case 	is 	stated
irrespective of 	the 	inclusion of 	such detailed 	facts, 	we 	view
them 	as 	implicit 	in CSEA's 	characterization of 	the 	District's
action as 	a 	"transfer" 	of 	work 	as 	opposed 	to 	"contracting out."
11	ll we	we 	have 	previously held 	that 	both 	the 	contracting 	out
and 	transfer 	of bargaining 	unit 	work 	are 	within 	the 	scope 	of
negotiations. 	Arcohe, 	supra; 	Rialto Unified School District
(1982) 	PERB Decision No. 	209. 	Of course, 	at hearing, 	CSEA may
be 	unsuccessful 	in proving 	that 	unit 	work 	was 	affected by 	the
District's 	actions, 	in which case 	the 	District would prevail.
11

meaning of Article 	2 of 	the Agreement 	and, 	if so, 	whether 	such
subcontracting 	unlawfully 	involved 	janitorial 	services.12
ORDER
The 	Public 	Employment 	Relations 	Board hereby ORDERS 	that 	the
dismissal 	in 	Case No. 	S-CE-890 be 	REVERSED and that 	the 	general
counsel 	issue 	a 	complaint 	consistent 	with 	the 	above 	discussion.
Member 	Burt 	joined 	in 	this 	Decision. 	Chairperson Hesse's
dissent begins 	on p. 	13.
1 2 In her 	dissent, 	the 	Chairperson erroneously asserts 	that
the 	majority opinion 	finds 	that 	work 	was 	"contracted 	out" 	to 	the
prisoners, 	who 	"resembled employees," 	and that an unfair practice
has been committed. 	As 	is 	clear 	from the 	above discussion, 	we
have 	made 	no 	such 	finding, 	but have 	merely 	found 	that 	CSEA has
stated a prima 	facie 	violation of 	EERA. 	The 	proper
characterizations 	of 	the 	use 	of 	the prisoners 	and of 	the 	nature
of 	the 	work 	itself 	are matters 	in dispute 	to be 	decided at
hearing.
12

Hesse, 	Chairperson, 	dissenting: 	A complaint 	should not
issue. 	The prisoners 	were 	not employees, 	they did not 	take work
away 	from 	the 	bargaining 	unit, 	and 	the 	District 	was permitted by
the 	specific 	language 	of 	the 	collective 	bargaining 	agreement 	to
contract 	out 	services.
At 	the heart 	of 	the matter 	is whether 	the prisoners
performed 	work 	that 	normally 	would have 	been 	done 	by 	the
District's 	janitorial 	employees.l The 	relevant 	contract
provision permits 	such 	removal 	of 	work 	from 	the 	bargaining
unit. 	If 	the work performed 	is done by non-unit employees, 	it
is 	properly termed a 	transfer 	of work. 	If performed by
non-employees, 	as here, 	it 	is contracting out. 	The end result
is 	the 	same 	— 	that 	is, 	the parties 	negotiated 	and mutually
assented 	that 	work 	that 	could have been preserved 	for 	the
bargaining 	unit 	employees 	was 	subject 	to being performed 	outside
the bargaining unit. 	Whether 	the work 	is 	termed 	"transferred"
or 	"contracted out" 	is a distinction without 	a difference
1The 	unfair 	charge 	filed by CSEA 	ignores 	the 	existence 	of
a 	contract 	provision 	that 	permits 	the 	District 	to 	contract 	out
to non-employees, 	or to transfer to non-unit employees, 	work
normally 	performed 	by bargaining 	unit 	members.
On 	appeal, 	CSEA argues 	only 	that 	the 	regional 	attorney who
dismissed 	the 	charge 	erred 	in equating 	"contracting out" 	of
work 	with 	"transfer 	of work." 	The 	majority opinion 	continues
this 	confusion by 	finding 	that 	the 	work 	was 	"contracted out" 	to
the prisoners, 	who 	"resembled employees." 	As noted above, 	I do
not 	believe 	that 	the 	regional 	attorney or 	the 	majority properly
focused 	on 	the 	contractual 	language 	that 	permitted both
contracting out 	and transfer 	of 	work, 	depending upon 	to whom
the work was 	given. 	Furthermore, 	the majority does more 	than
address 	the 	limited 	issue 	on appeal 	and 	instead 	looks 	at 	the
merits.
13

insofar 	as 	ascertaining what 	the parties 	agreed 	to by 	contract.
Furthermore, 	the 	District was 	at 	liberty to 	implement 	the
contract 	provision whenever 	it 	chose 	to during 	the 	term of 	the
agreement.2
Contracting 	Out 	of 	This Work Was 	Not 	Unlawful
Even 	if 	the Board must 	look beyond 	the 	narrow 	issue 	raised
on appeal 	and 	review 	the 	entire 	original 	charge, 	I disagree 	with
the majority's 	findings. 	Article 2 of 	the parties' 	collective
bargaining agreement provides, 	in pertinent part:
It 	is 	understood 	and agreed 	that 	the Board
retains 	all 	of 	its powers 	and authority to
direct, 	manage, 	and control to the 	fullest
extent of 	the 	law. 	Included 	in, 	but not
limited to, 	those duties 	and powers 	are 	the
exclusive right to: 	. 	. 	. contract out
work, 	except 	where 	prohibited by 	law; 	. . . .
I 	agree 	with 	the 	District 	that 	this 	provision of 	the 	agreement
allows 	it 	to contract 	out bargaining unit work.
The majority, 	however, 	finds 	that contracting out of
janitorial 	work 	is 	prohibited by 	the phrase 	"except 	where
prohibited by law." 	In 	making 	this 	finding, 	the 	majority 	relies
on Willits, 	supra, 	which prohibited a district 	from contracting
out 	janitorial 	services. 	I 	am not 	convinced 	that Willits 	is
controlling 	in this 	case or 	that 	it 	is 	still good law. 	Willits
is 	distinguishable 	on 	its 	facts 	and 	the 	nature 	of 	school 	labor
relations 	is changed.
2Fresno 	County 	Board 	of 	Education 	and 	Superintendent 	of
Schools 	(1984) 	PERB Decision No. 	409.
14

In Willits, 	the 	District 	laid off 	two 	janitors 	and
contracted 	out 	their 	work. 	The 	court 	found 	this 	conduct
violated Education Code 	section 13581 	(now 45103), 	which
requires 	the 	establishment 	of 	a 	"classified 	service." 	Based 	on
that 	statute plus 	its predecessor, 	which 	specified 	that 	school
districts 	should employ 	janitors, 	the court held, 	at page 	785:
It 	is 	our 	opinion that 	section 	13581 	is 	of
ample 	breadth 	to make 	mandatory 	the
employment 	of 	janitors 	to do 	the 	regular
work 	of 	that 	occupation. 	(Emphasis 	added.)
In the 	instant 	case, 	janitors were 	not 	laid off.
Furthermore, 	the work 	that was 	contracted out was 	not 	regular
janitorial work, 	but 	rather was unusual maintenance work, 	and
would 	not have been done 	if 	the prisoners 	were 	unavailable.
CSEA admits 	that 	no 	regularly 	scheduled 	custodial 	or 	janitorial
work 	was 	given to 	the prisoners 	to do. 	Rather, 	only overtime
work was 	affected.33 	Thus, 	the 	employment 	status of 	the unit
members 	was 	not disturbed. 	Even 	if, 	as 	the Association claims,
this 	work 	was 	normally done 	by members 	of 	the bargaining unit,
this 	case 	still 	falls 	outside 	the Willits 	fact pattern due 	to
statutory 	changes 	in 	collective 	bargaining.
3CSEA 	and 	the 	majority 	rely 	upon 	Lincoln 	Unified 	School
District 	(1984) 	PERB Decision No. 	465 	for 	its position that 	any
transfer 	of bargaining 	unit 	work 	that 	affects 	employee 	overtime
is 	an EERA violation. 	However, 	Lincoln 	is 	easily distinguished
from 	the 	instant 	case. 	In Lincoln, 	the 	employer 	transferred
the bargaining 	unit 	work 	to other 	employees 	and 	volunteers.
The 	Lincoln 	employer 	did 	not have 	the benefit 	of 	a
contracting-out 	provision 	in 	the 	collective 	bargaining
agreement.
15

An 	important 	element 	in Willits 	concerning 	the 	prohibition
on 	contracting 	out 	was 	that 	"[s]chool 	district boards have 	power
to 	contract 	only as 	provided by statute." 	(Willits, 	at p.
781.) 	At 	the 	time Willits 	was 	decided, 	the 	school board had no
statutory 	authority 	to bargain 	about 	traditional 	labor
relations. 	Instead, 	the school board made all 	the decisions, 	as
permitted by 	statute. 	Since 	no 	statute 	authorized 	contracting
out 	of 	janitorial 	work, 	such conduct was 	prohibited.
Today, 	labor 	relations 	is 	not 	so limited. 	Under EERA,
school 	district 	employees 	may 	form 	and 	join 	employee
organizations 	to negotiate 	with their 	employers 	over wages,
hours, 	and terms 	and conditions of employment, 	i.e., 	matters
within the 	scope 	of 	representation. 	One 	of 	those matters 	within
scope 	can be 	contracting 	out where 	labor 	costs 	are 	at 	issue. 	As
the majority notes, 	Willits was decided under an antiquated
principle. 	It 	is my view that 	the Legislature mooted Willits by
enacting 	EERA and 	Education 	Code 	section 	35160.
District's 	Conduct 	is 	at Most 	a Contract Violation
Assuming, 	arguendo, 	that Willits 	is 	still good law, 	I 	still
disagree 	with 	the 	majority position 	that 	an 	unfair 	practice 	has
been 	committed.
If 	the majority 	is 	correct 	that 	contracting out 	of
janitorial 	work 	is 	prohibited by 	law 	and 	therefore by 	operation
of contract, 	the 	District's 	conduct 	is 	at most 	a breach of
contract. 	A contract 	interpretation dispute as 	to whether 	a
party 	to 	a 	collective 	bargaining 	agreement 	violated 	the 	contract
16

must be 	resolved by an arbitrator, 	not 	this 	agency. 	PERB's
function 	is 	to 	insure 	that 	the parties 	engage 	in good 	faith
bargaining. 	Here, 	the parties did so. 	If there 	is a dispute as
to whether 	one 	party 	failed 	to 	live 	up 	to 	the 	negotiated
agreement, 	an alternative dispute 	resolution 	is 	available 	and
more practical.
17