San Francisco Unified School District (PERB 1438E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED EDUCATORS OF SAN FRANCISCO,
Charging Party,
V.
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. SF-CE-2015-E
PERB Decision No.
	1438
May
	22,
	2001
Appearances: VanBourg, Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for
United Educators
of
San Francisco; Morrison & Foerster by James E. Boddy, Jr., Attorney, for
San Francisco Unified School District. 	'
Before Amador, Baker and Whitehead, Members.
DECISION
AMADOR, Member: This case comes before the Public Employment Relations Board
(Board) on exceptions filed by the United Educators
of
San Francisco to an administrative law
judge's (ALJ) proposed decision (attached). The charge alleged that the San Francisco Unified
School District (District) violated the Educational Employment Relations Act (EERA) 1 when it
unilaterally changed terms and conditions
of
employment at a charter school within the
District. The ALJ found that PERB lacks jurisdiction over this charge and dismissed it.
After reviewing the entire record, the Board hereby affirms the ALJ's dismissal.
1 EERA is codified at Government Code section 3540 et seq.

ORDER
The unfair practice charge and complaint in Case No. SF-CE-2015-E are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
2

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
UNITED 	EDUCATORS 	OF
SAN 	FRANCISCO,
Charging 	Party,
V.
SAN 	FRANCISCO 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case 	No. 	SF-CE-2015
PROPOSED 	DECISION
(2/16/2001)
Appearances: 	Van 	Bourg, 	Weinberg, 	Roger 	& 	Rosenfeld 	by 	Stewart
Weinberg, 	Attorney, 	for 	United 	Educators 	of 	San 	Francisco;
Morrison 	& 	Foerster 	by 	James 	E. 	Boddy, 	Jr., 	Attorney, 	for
San 	Francisco 	Unified 	School 	District.
Before 	James 	W. 	Tamm, 	Administrative 	Law 	Judge.
PROCEDURAL 	HISTORY
On 	December 	1, 	1998, 	United 	Educators 	of 	San 	Francisco
(Charging 	Party) 	filed 	this 	unfair 	practice 	charge 	against 	the
San 	Francisco 	Unified 	School 	District 	(District). 	On August 	20,
1999, 	after 	conducting 	an 	investigation, 	the 	general 	counsel's
office 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
issued 	a 	complaint 	alleging 	that 	the 	District 	violated 	section
3543.5(a), 	(b) 	and 	(c) 	of 	the 	Educational 	Employment 	Relations
Act 	(EERA 	or Act) , 1 by 	adopting 	a 	charter 	school 	petition which
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	EERA 	section 	3543.5 	states, 	in 	pertinent 	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

unilaterally 	changed 	terms 	and 	conditions 	of 	employment 	at 	the
charter 	school.
employees 	because 	of 	their 	exercise 	of 	rights
eed 	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.
On 	September 	14, 	1999, 	the 	District 	answered 	the 	complaint
denying 	the 	allegations. 	The 	District 	also 	asserted 	an
affirmative 	defense 	that 	the 	EERA was 	not 	applicable 	to 	the
charter 	school 	and, 	therefore, 	PERE 	had 	no 	jurisdiction 	in 	this
matter.
On 	September 	15, 	1999, 	the 	District 	filed 	a 	request 	with 	the
general 	counsel's 	office 	of 	PERE 	to 	certify 	an 	appeal 	of 	the
issuance 	of 	the 	complaint 	to 	the 	Board 	itself. 	The 	general
counsel's 	office 	denied 	that 	request.
On 	September 	27, 	1999, 	a 	settlement 	conference 	was 	held 	and
the 	parties 	reached 	an 	interim 	settlement 	agreement. 	The 	interim
settlement 	agreement 	contained 	a 	process 	that 	the 	parties 	hoped
would 	lead 	to 	a 	final 	settlement 	prior 	to 	March 	28, 	2000, 	the
date 	selected 	for 	a 	formal 	hearing 	in 	the 	matter. 	The 	complaint
was 	then 	placed 	in 	abeyance. 	The 	parties 	were, 	however, 	unable
to 	resolve 	the 	dispute 	and 	after 	several 	party-requested
continuances, 	a 	hearing 	was 	scheduled 	for 	October 	24 	through 	27,
2000. 	On 	October 	24, 	during 	the 	first 	day 	of 	formal 	hearing, 	the
2

parties 	agreed 	to 	a 	stipulated 	record. 	Briefs 	were 	filed 	and 	the
case 	was 	submitted 	for 	decision 	on November 	20, 	2000.
FINDINGS 	OF 	FACT
Charging 	Party 	is 	an 	employee 	organization 	within 	Government
Code 	section 	3540.l(d) 	and 	is 	the 	exclusive 	representative 	of
classified 	and 	certificated 	units 	within 	the 	District. 	The
District 	is 	a 	public 	school 	employer 	within 	the 	meaning 	of
Government 	Code 	section 	3540.l(k). 	Although 	the 	parties 	have 	a
collective 	bargaining 	agreement 	which 	ends 	in 	binding
arbitration, 	there 	is 	nothing 	in 	the 	agreement 	that 	arguably
its 	the 	District's 	action. 	Therefore, 	deferral 	of 	this
matter 	to 	arbitration 	is 	not 	appropriate.
In 	1998, 	the 	District 	began 	working 	with 	Edison 	Schools,
Inc., 	formerly 	known 	as 	the 	Edison 	Project 	(Edison) 	to 	convert
one 	of 	the 	District 	schools 	to 	a 	charter 	school 	run 	by 	Edison.
Edison 	is 	a 	private 	business 	that 	establishes 	and 	operates
charter 	schools 	throughout 	the 	United 	States 	on 	a 	for 	profit
basis. 	On 	June 	23, 	1998, 	the 	District's 	Board 	of 	Education
adopted 	a 	resolution 	approving 	a 	charter 	and 	thereby 	creating
Edison 	Charter 	School. 	The 	District 	action 	was 	pursuant 	to
California 	Education 	Code 	section 	47600 	et 	seq., 	known 	as 	the
Charter 	Schools 	Act 	of 	1992.
During 	the 	time 	period 	covered by 	this 	complaint, 	all
employees 	of 	the 	Edison 	Charter 	School 	have 	been 	employees 	of 	the
District. 	As 	District 	employees 	they 	have 	occupied 	allocated
District 	positions, 	have 	accrued 	credit 	during 	employment 	at
3

Edison
	Charter
	School 	toward
	tenure
	with
	the
	District,
	and
	have
accrued
	seniority
	for
	purposes 	of
	the
	collective
	bargaining
agreement 	between
	the
	District
	and
	Charging
	Party
	in
	regard
	to
salary
	schedules,
	layoff
	and
	transfers.
The
	adoption 	of
	the
	charter
	changed
	the
	terms
	and
	conditions
of
	employment
	for
	employees
	who
	remained
	at
	the
	Edison
	Charter
School. 	For
	classified
	employees, 	changes
	occurred
	to
	the
grievance 	procedure,
	organizational 	security, 	salary
	and
	the
evaluation
	procedure.
	For
	certificated
	employees
	remaining
	at
the
	charter
	school,
	changes
	occurred
	to 	the 	grievance 	procedure,
organizational 	security, 	salary,
	transfer 	rights,
	length 	of 	the
workday 	and
	work
	year, 	evaluation
	procedures
	and
	class 	size.
At
	the
	time
	leading
	up
	to
	the 	establishment 	of 	the
	charter
school, 	the
	classified
	and
	certificated
	employees
	of 	the
	proposed
charter
	school
	were
	represented
	by
	the 	charging
	party.
	The
parties 	stipulated 	that
	the
	District
	did 	not
	negotiate
	with
Charging
	Party 	regarding 	these
	changes
	to
	terms
	and
	conditions
	of
employment
	at
	the
	Edison
	Charter
	School.
	The
	parties
	also
stipulated 	that
	the
	Charging
	Party 	did 	not
	waive 	any
	rights 	that
it
	may
	have
	to 	bargain 	in 	regard 	to 	these
	changes.
ISSUE
Did
	the
	District 	violate 	section 	3543.S(a),
	(b)
	and 	(c)
	of
the
	EERA
	by
	establishing 	the 	Edison 	Charter 	School 	and
	thereby
unilaterally
	changing 	terms 	and
	conditions 	of
	employment
	at
Edison 	Charter 	School?
4

DISCUSSION
Charging 	Party 	concedes 	that 	the 	District 	had 	no 	duty 	to
bargain 	over 	its 	decision 	to 	create 	the 	charter 	school. 	Charging
Party 	further 	concedes 	that 	PERB 	had 	no 	jurisdiction over 	the
Edison 	Charter 	School 	or 	Edison 	itself 	at 	times 	pertinent 	to 	this
complaint. 2 	Charging 	Party's 	claim 	is 	that 	the 	District 	should
be 	required 	to 	negotiate 	regarding 	the 	effects 	of 	its 	decision 	to
approve 	the 	charter. 	Charging 	Party 	cites 	numerous 	examples 	of
changes 	to 	terms 	and 	conditions 	of 	employment 	conflicting
directly 	with 	the 	collective 	bargaining 	agreement 	between
Charging 	Party 	and 	the 	District.
The 	District 	argues 	that 	both 	the 	decision 	to 	approve 	a
charter 	school 	and 	the 	effects 	of 	that 	decision 	upon 	employees 	of
the 	charter 	school 	are 	excluded 	from 	PERB's 	jurisdiction by 	the
Charter 	Schools 	Act 	of 	1992.
The 	Charter 	Schools 	Act 	of 	1992 	is 	an 	experiment 	encouraging
the 	development 	of 	creative 	educational 	approaches 	within
California. 	The 	legislative 	intent 	stated within 	the 	Charter
Schools 	Act 	of 	1992 	is:
To 	provide 	opportunities 	for 	teachers,
parents, 	pupils, 	and 	community members 	to
establish 	and 	maintain 	schools 	that 	operate
independently 	from 	the 	existing 	school
district 	structure.
Very 	strong 	evidence 	supports 	the 	District's 	argument 	that
the 	EERA 	does 	not 	apply 	and, 	therefore, 	PERB 	is 	without
2The 	Charter 	Schools 	Act 	was 	amended 	effective 	January 	1,
1999, 	to 	permit 	collective 	bargaining 	at 	charter 	schools.
5

jurisdiction 	in 	this 	case. 	The 	strongest 	evidence 	is 	the 	plain
language 	of 	the 	Charter 	Schools 	Act 	itself. 	Education 	Code
section 	47610 	provides:
A charter 	school 	shall 	comply with 	this 	part
and 	all 	of 	the 	provisions 	set 	forth 	in 	its
charter, 	but 	is 	otherwise 	exempt 	from 	the
laws 	governing 	school 	districts 	except
[regarding 	participation 	in 	the 	State
Teachers 	Retirement 	System].
The 	EERA 	is 	a 	state 	law 	governing 	school 	districts. 	There
is 	nothing 	within 	the 	Charter 	Schools 	Act 	suggesting 	that 	the
EERA. 	is 	not 	one 	of 	the 	laws 	from 	which 	charter 	schools 	are
exempt.
The 	omission 	of 	any 	role 	for 	a 	union 	in 	the 	process 	was 	not
inadvertent. 	When 	the 	Charter 	Schools 	Act 	became 	law, 	there 	were
two 	rival 	bills 	enacted 	by 	the 	Legislature. 	One 	of 	them,
Assembly 	Bill 	2585, 	provided 	for 	collective 	bargaining 	as 	a 	part
of 	Lhe 	ongoing 	charter 	school 	process. 	The 	second 	enactment,
Senate 	Bill 	1448, 	did 	not 	provide 	for 	collective 	bargaining.
Governor 	Wilson 	vetoed AB 	2585 	and 	SB 	1448 	became 	law. 	The
Governor's 	veto 	message 	to 	the 	assembly 	stated:
While 	I 	support 	the 	charter 	school 	concept,
the 	restrictions 	in 	this 	bill 	will 	not 	allow
a 	fair 	test 	of 	this 	experimental 	approach. 	I
have 	this 	date 	signed 	Senate 	Bill 	No. 	1448,
which 	permits 	the 	creation 	of 	charter 	schools
without 	the 	excessive 	controls 	contained 	in
this 	bill.
The 	essential 	elements 	of 	the 	charter 	school
concept 	are 	freedom 	from 	state 	regulation 	and
employee 	organizational 	control, 	and 	choice
on 	the 	part 	of 	parents, 	pupils, 	teachers, 	and
administrators. 	This 	bill 	requires 	teacher
union 	approval 	of 	all 	charter 	schools, 	state
review 	and 	approval 	of 	the 	charter
6

application, 	continuation 	of 	elaborate
collective 	bargaining 	processes, 	and
limitations 	on 	who 	can 	attend 	a 	charter
school. 	On 	all 	accounts 	this 	bill 	fails 	to
embrace 	the 	basic 	ingredients 	of 	the 	charter
school 	concept.
The 	Charter 	Schools 	Act 	specifies 	the 	procedure 	for
establishment 	and 	operation 	of 	a 	charter 	school. 	In 	contrast 	to
the 	EERA, 	a 	union, 	even 	one 	with 	exclusive 	representative 	status,
is 	not 	a 	party 	to 	the 	decision 	making 	process 	resulting 	in 	a
charter 	school, 	nor, 	at 	times 	pertinent 	to 	this 	unfair 	practice
complaint, 	were 	unions 	given 	any 	legal 	status 	as 	representatives
of 	employees 	within 	a 	charter 	school. 	Even 	the 	current 	law 	as
amended, 	which 	allows 	collective 	bargaining 	rights, 	limits 	union
and 	PERB 	involvement 	in 	the 	process:
The 	approval 	or 	a 	denial 	of 	a 	charter
petition 	by 	a 	granting 	agency pursuant 	to
subdivision 	(b) 	of 	Section 	47605 	shall 	not 	be
controlled by 	collective 	bargaining
agreements 	nor 	subject 	to 	review 	or
regulation 	by 	the 	Public 	Employment 	Relations
Board. 	[California 	Education 	Code 	section
47611.5 (e) .]
While 	not 	controlling 	in 	the 	case 	at 	hand, 	the 	only 	court
case 	relating 	to 	this 	issue 	is 	consistent 	with 	this 	reasoning.
In 	Desert 	Sands 	Unified 	School 	District 	v. 	Public 	Employment
Relations 	Board 	(Cal.Sup.Ct., 	Nov. 	1, 	1996) 	Case 	No. 	BC 	126357
(Desert 	Sands) 	PERB 	sought 	jurisdiction when 	the 	district 	made
unilateral 	changes 	to 	terms 	and 	conditions 	of 	employment 	pursuant
to 	the 	establishment 	of 	a 	charter 	school 	within 	the 	district. 	In
ing 	an 	injunction 	against 	PERE, 	the 	court 	stated:
To 	permit 	PERE 	to 	assert 	jurisdiction over
terms 	and 	conditions 	of 	employment 	for
7

employees 	who 	will 	work 	at 	charter 	schools
when 	the 	charter 	is 	approved 	by 	the 	State
Board 	of 	Education would 	eviscerate 	the
charter 	school's 	exemption 	from 	laws
governing 	school 	districts, 	including 	the
EERA 	and 	the 	administration 	of 	that 	Act 	by
PERB. 	The 	exemption 	is 	the 	central 	feature
of 	the 	Charter 	Schools 	Act. 	California
Education 	Code 	section 	47600 	.
Charging 	Party 	seeks 	to 	distinguish 	Desert 	Sands 	by 	arguing
the 	complaint 	in 	this 	case 	is 	not 	against 	Edison 	but 	rather
against 	the 	San 	Francisco 	Unified 	School 	District. 	However, 	in
Desert 	Sands 	PERB 	also 	sought 	jurisdiction 	against 	the 	district.
In 	both 	cases 	when 	the 	district 	adopted 	the 	charter 	it
unilaterally 	changed 	terms 	and 	conditions 	of 	employment 	at 	the
charter 	school. 	Thus, 	the 	material 	aspects 	of 	both 	cases 	are
indistinguishable.
Charging 	Party 	also 	argues 	that 	PERB 	should 	assert
jurisdiction because 	the 	charter 	itself 	acknowledges 	that 	charter
school 	employees 	are 	employees 	of 	the 	District. 	This 	is 	a
distinction 	without 	a 	difference, 	however, 	because 	nothing 	in 	the
Charter 	Schools 	Act 	reflects 	a 	legislative 	intent 	that 	charter
school 	employees 	cease 	being 	Dist 	ct 	employees. 	The 	Legislature
simply 	created 	a 	separate 	experimental 	environment 	where 	District
employees 	at 	a 	charter 	school 	were 	free 	to 	innovate 	creative
educational 	processes 	without 	the 	interference 	or 	protection 	of
other 	state 	laws. 	The 	participation 	of 	employees 	and 	students 	at
a 	charter 	school 	is 	entirely voluntary. 3
3Education 	Code 	section 	47605(e) 	and 	(f) 	provides 	that 	the
District 	shall 	not 	require 	students 	or 	employees 	to 	attend 	or 	be
employed 	at 	a 	charter 	school.
8

This 	conclusion 	is 	also 	consistent 	with 	opinions 	of
the 	attorney 	general 	(see 	80 	Ops.Cal.Atty.Gen. 	52 	(1997);
81 	Ops.Cal.Atty.Gen. 	80 	(1998)).
At 	the 	time 	of 	this 	complaint, 	the 	EERA was 	not 	applicable
to 	districts 	creating 	charter 	schools 	or 	the 	ongoing 	operation 	of
those 	charter 	schools. 	PERB 	is, 	therefore, 	without 	jurisdiction
to 	resolve 	this 	complaint.
While 	Charging 	Party's 	brief 	raises 	a 	whole 	host 	of
interesting 	questions 	about 	disputes 	over 	terms 	and 	conditions 	of
employment 	at 	charter 	schools, 	the 	only 	thing 	that 	is 	clear 	is
that 	PERB 	and 	the 	EERA 	are 	not 	available 	options 	for 	resolution
of 	those 	questions 	in 	this 	case. 4
CONCLUSION
At 	all 	times 	pertinent 	to 	this 	complaint, 	the 	Charter
Schools 	Act 	of 	1992 	specifically 	exempted 	districts 	creating
charter 	schools 	from 	the 	jurisdiction of 	the 	Public 	Employment
Relations 	Board 	over 	unilateral 	changes 	to 	terms 	and 	conditions
of 	employment 	at 	the 	charter 	school. 	Therefore, 	the 	complaint
in 	Case 	No. 	SF-CE-2015, 	United 	Educators 	of 	San 	Francisco 	v.
San 	Francisco 	Unified 	School 	District, 	is 	hereby 	dismissed.
do 	not 	conclude 	by 	this 	discussion 	that 	a 	district 	can
never 	have 	a 	bargaining 	obligation when 	it 	creates 	a 	charter
school. 	It 	is 	conceivable 	that 	a 	district 	and/or 	a 	charter
school 	could 	unilaterally 	adopt 	changes 	that 	could 	impact 	terms
and 	conditions 	of 	employment 	of 	employees 	not 	at 	the 	charter
school. 	The 	complaint 	in 	this 	case, 	however, 	as 	well 	as 	the
stipulated 	record, 	is 	limited 	to 	changes 	for 	employees 	at 	the
charter 	school 	itself.
9

Pursuant 	to 	California 	Code 	of 	Regulations, 	title 	8,
section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall 	become
final 	unless 	a 	party 	files 	a 	statement 	of 	exceptions 	with 	the
Board 	itself 	within 	20 	days 	of 	service 	of 	this 	Decision. 	The
Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals 	Assistant
1031 	18th 	Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
In 	accordance 	with 	PERB 	regulations, 	the 	statement 	of
exceptions 	should 	identify 	by page 	citation 	or 	exhibit 	number 	the
portions 	of 	the 	record, 	if 	any, 	relied 	upon 	for 	such 	exceptions.
(Cal. 	Code 	Regs., 	tit. 	8, 	sec. 	32300.)
A document 	is 	considered 	"filed" 	when 	actually 	received
before 	the 	close 	of 	business 	(5 	p.m.) 	on 	the 	last 	day 	set 	for
filing 	or 	when 	mailed 	by 	certified 	or 	Express 	United 	States 	mail,
as 	shown 	on 	the 	postal 	receipt 	or postmark, 	or 	delivered 	to 	a
common 	carrier 	promising 	overnight 	delivery, 	as 	shown 	on 	the
carrier's 	receipt, 	not 	later 	than 	the 	last 	day 	set 	for 	filing.
(Cal. 	Code 	Regs., 	tit. 	8, 	sec. 	32135(a); 	see 	also 	Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32130.)
A document 	is 	also 	considered 	''filed" 	when 	received 	by
facsimile 	transmission 	before 	the 	close 	of 	business 	on 	the 	last
day 	for 	filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet
which 	meets 	the 	requirements 	of 	Cal. 	Code 	Regs., 	tit.8, 	sec.
32135(d), 	provided 	the 	filing 	party 	also 	places 	the 	original,
together 	with 	the 	required 	number 	of 	copies 	and 	proof 	of 	service,
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in 	the 	U.S. 	mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b) 	(c)
and 	(d); 	see 	also 	Cal. 	Code 	Regs., 	tit. 	8, 	secs. 	32090 	and
32130.)
Any 	statement 	of 	exceptions 	and 	supporting 	brief 	must 	be
served 	concurrently with 	its 	filing 	upon 	each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany 	each 	copy 	served 	on
a 	party 	or 	filed 	with 	the 	Board 	itself. 	(See 	Cal. 	Code 	Regs.,
tit. 	8, 	secs. 	32300, 	32305, 	32140, 	and 	32135(c) .)
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James 	W. 	Tamm
Administrative 	Law Judge