Klamath-Trinity Joint Unified School District (PERB 0717E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
KLAMATH-TRINITY 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
KLAMATH-TRINITY 	JOINT 	UNIFIED
SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-1242
PERB Decision No. 	717
December 30, 	1908
Appearances: 	Ramon E. 	Romero, Attorney, 	for Klamath-Trinity
Teachers Association, 	CTA/NEA.
Before Porter, 	Craib, 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by Klamath-Trinity
Teachers Association, 	CTA/NEA 	(Association) 	of the regional
attorney's 	dismissal 	of 	its 	unfair practice 	charge 	for 	failure 	to
state 	a prima 	facie 	case. 	The Association alleged that the
Klamath-Trinity Joint 	Unified 	School 	District 	(District) 	violated
section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations Act 	(EERA or Act)1 by 	failing and refusing to negotiate
1EERA	EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to the Government Code. 	Section 3543.5(a), 	(b) 	and 	(c) 	states:
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
)
)
)
)
)
)
)
)
~======-----------!

in 	good 	faith with 	the Association regarding 	the 	decision 	and/or
effects 	of 	the decision to 	transfer 	or 	subcontract work 	out 	of
the 	bargaining unit.
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.
In September 	1987, 	teachers 	Nelson and Johnson began
teaching 	French and Native American 	Studies 	at 	Hoopa Valley 	High
School 	during 	the 	regular 	school 	day. 	The Association 	asserts
that 	these 	courses 	are 	high 	school 	level 	introductory 	courses 	and
not 	"advanced 	scholastic" 	courses 	within the meaning of 	Education
Code 	section 48800, 	and that 	it is not the intent of the 	District
"to 	provide 	educational 	enrichment 	opportunities 	to 	a 	limited
number 	of 	eligible 	pupils. 	. . . "
On December 2, 	1987, 	the Association learned that Nelson and
Johnson were not members 	of 	the bargaining unit but were 	employed
and paid by the College 	of 	the 	Redwoods. 	The Association alleges
that 	there were members 	of 	the bargaining unit who were
certificated 	and 	competent 	to 	teach the 	disputed 	courses.
According to the Association, 	it has 	been the past practice 	in
the 	District 	to have all 	new courses 	absorbed by 	current
bargaining unit members 	or to hire 	new members 	of 	the Association
to 	teach the new courses.
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On appeal, 	the Association asserts that: 	(1) 	the regional
attorney 	failed to 	assume 	that 	all 	facts 	alleged 	in the 	charge
are deemed true; 	and 	(2) 	the District's 	conduct constitutes
subcontracting 	or 	transferring 	of 	bargaining 	unit work without
providing 	the Association with notice 	or 	an opportunity 	to
bargain the decision and/or 	its 	effects. 	The 	District did not
respond to the appeal.
DISCUSSION
The 	appeal 	in the 	instant 	case 	raises 	the preliminary
question 	of whether 	the 	regional 	attorney 	erred 	in 	failing 	to
assume, 	for purposes of determining whether the 	charge 	stated a
prima 	facie 	case, 	that the 	factual 	allegations 	contained in the
charge were true. 	In San Juan Unified School 	District 	(1977)
PERB Decision No. 	12, 	the Board held that in deciding whether to
dismiss 	an unfair practice 	charge 	on the 	ground that 	it 	fails 	to
state a prima 	facie violation of the EERA, 	all 	the 	essential
facts 	alleged in the 	charge must be 	assumed to be 	true.
In the instant case, 	despite allegations 	in the amended
charge 	that the disputed 	courses were 	"high 	school 	level,
introductory courses 	. 	. 	. 	not advanced, 	community college level
courses" 	and that the courses 	in questions were 	"the 	same 	as 	or
similar 	to 	other 	language 	and 	social 	studies 	classes 	taught by
members of the 	. 	. 	. 	unit," the regional attorney concluded that
the 	courses were 	"community 	college 	courses." 	The 	regional
attorney's 	failure 	to assume 	the 	truth of 	the 	factual 	allegations
contained 	in the 	charge 	had 	a 	significant 	impact 	upon her
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analysis 	of whether or not the 	charge 	stated a prima 	facie 	case.
We must 	therefore 	reanalyze 	the 	charge 	assuming all 	of 	the 	facts
stated 	therein are 	true.
In Fremont Union High School 	District 	(1987) 	PERB Decision
No. 	651, 	PERB noted the definition of 	"subcontracting" 	as 	set
forth 	in Associate 	Justice 	Potter 	Stewart's 	concurring 	opinion 	in
Fibreboard Paper Products Corporation v. 	NLRB 	(1964) 	379 	U.S.
203. 	"Subcontracting" 	was defined therein as 	the
. 	. 	. 	substitution of one group of workers
for 	another 	to perform the 	same 	task 	in the
same 	[location] 	under the ultimate 	control 	of
the 	same 	employer.
(379 U.S. 	at p. 	224.)
In the majority opinion of 	the Court, 	Chief 	Justice 	Earl
Warren 	stated 	that:
. 	. 	. contracting out . 	. 	. work previously
performed by employees 	in the 	bargaining unit,
which the 	employees were 	capable 	of 	continuing 	to
perform is 	[a mandatory bargaining subject]. 	(3 79
U.S. 	at 210.)
In the 	case under consideration, 	the 	charging party has
alleged 	that 	the 	District 	substituted 	community 	college 	teachers
to teach, 	at the high school during regular 	school hours, 	high
school 	language 	and 	social 	studies 	classes 	which 	could have 	been
competently taught by unit members. 	Although the 	classes 	in
question were 	"new" 	classes, 	the 	charging party alleged a past
practice 	of 	having 	current 	staff 	teach new classes 	or hiring new
unit members 	to teach the 	"new" 	classes. 	The 	charging party
also alleged facts that, 	if proven, 	could result in a finding
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that the 	"ultimate 	control" 	over the 	content of 	the 	courses
rested with 	the 	District.
In Fremont, 	the PERB held the 	obligation to bargain with
respect 	to 	effects 	extends 	"only to those 	immediate 	or
prospective 	effects which 	are 	reasonably 	certain 	to 	occur 	and
causally related to the 	nonnegotiable decision at 	issue." 	The
regional 	attorney's 	improper 	assumption 	that 	the 	disputed 	classes
were 	"college 	level 	classes" 	that 	could only be 	taught by
credentialed 	community 	college 	teachers 	led her 	to 	conclude 	that
the 	District's 	action had no 	effect on the 	unit. 	Assuming the
truth of the 	facts 	alleged in the 	charge, 	we 	find that the
District's 	actions 	may well 	have 	had 	"immediate 	or 	prospective
effects" 	on the 	integrity of the unit.
Accordingly, 	we 	find that 	the 	charging party has 	stated a
prima 	facie 	violation of 	EERA 	section 	3543.5 	by 	alleging 	that 	the
District 	transferred 	or 	subcontracted work 	out 	of 	the 	bargaining
unit without 	first 	providing 	the Association with notice 	and 	an
opportunity to bargain about 	the 	decision and/or 	its 	effects.
ORDER
Based on the reasons 	set 	forth above, 	the Board REVERSES 	the
regional 	attorney's 	dismissal 	of 	the 	charge and remands 	the 	case
to 	the 	general 	counsel 	for 	issuance 	of 	a 	complaint pursuant 	to
PERB Regulation 	32640.
Members 	Craib and Camilli 	joined 	in this 	Decision.
Member 	Porter's 	concurrence 	and 	dissent 	begins 	on 	page 	6.
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Porter, 	Member, 	concurring and dissenting: 	I 	concur with
the 	majority 	that 	a 	regional 	attorney may not 	resolve 	disputed
facts 	and, 	for purposes 	of testing the 	sufficiency of 	the
charges, 	must accept the 	charging party's 	alleged facts 	as 	true.
But, 	putting aside 	any 	such improper 	findings 	of 	facts made 	by
the 	regional 	attorney in this 	case,1 and 	considering 	solely the
facts 	alleged by the 	charging party in the amended charges, 	I
must respectfully disagree with my 	colleagues 	that 	such 	factual
allegations 	establish a prima 	facie 	case 	of 	an unlawful
subcontracting 	or 	transfer 	of 	unit work.
The 	charging party 	negates 	a 	violation of 	EERA under 	the
theory 	of 	an unlawful 	transfer 	of 	unit work by 	expressly 	alleging
that 	the 	two new teachers 	(Nelson and Johnson) 	teaching 	the 	new
classes 	"are not employees of the District, 	but are employees 	of
the College of the Redwoods" 	(emphasis added). 	The charging
party 	further 	fatally 	alleges 	that 	"[t]eachers 	Nelson 	and 	Johnson
are 	paid directly by the 	College 	of 	the 	Redwoods 	and work under
the 	terms 	and conditions 	of 	employment 	for College 	of 	the
Redwoods 	instructors." 	As 	to establishing a prima 	facie 	case 	of
an unlawful 	subcontracting, 	the 	charging party makes 	no 	factual
allegations 	that 	the 	District 	had 	entered 	into 	any 	agreement 	or
-
contract with the 	College 	of 	the 	Redwoods 	to provide 	teaching
services to the respondent District. 	Accordingly, 	no prima 	facie
1It is, 	of course, 	appropriate 	for the regional 	attorney to
take 	official 	notice 	of 	any relevant 	Education Code 	statutes.
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case 	of 	unlawful 	transfer 	of 	unit work or 	subcontracting has 	been
alleged by the 	charging party. 	(See 	San Diego Community College
District (1988) 	PERB Decision No. 	662, dis. 	opn., pp. 	26-32.)
With respect 	to the 	alternative 	theory that 	the 	District may
have 	failed to bargain the 	"effects" 	of 	a 	"non-negotiable
decision," 	the 	amended 	charges 	simply 	fail 	to make 	any 	factual
allegations as to what decision,, 	if any, 	the District made, 	and
from which 	effects 	bargaining 	could 	stem.
While 	the 	facts 	alleged 	in the 	amended charges 	possibly
suggest 	a violation of 	EERA on 	the 	basis 	that 	the 	District may
have 	unilaterally 	changed 	a 	policy 	established 	by past 	practice,
the 	charges 	still 	lack any factual 	allegations 	as 	to what action,
if 	any, 	the respondent District took whereby employees 	of 	the
College 	of 	the 	Redwoods 	commenced teaching the 	two new courses 	at
a District 	school 	site. 	I 	would remand the 	case to the regional
attorney with 	instructions 	to 	afford 	the 	charging party 	one 	last
opportunity to 	further amend its 	charges 	to allege, 	if 	it 	can,
facts 	necessary to 	establish 	a 	prima 	facie 	unlawful 	unilateral
change 	in policy.
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