San Diego Community College District * * * REVERSED IN PART by San Diego Adult Educators v. PERB (1990) 223 Cal. App. 3d 1124 (PERB 0662E)

REVERSED IN PART by San Diego Adult Educators v. PERB
(1990) 223 Cal. App. 3d 1124
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN DIEGO ADULT EDUCATORS, 	LOCAL
4289, 	AMERICAN FEDERATION OF
TEACHERS/CALIFORNIA 	FEDERATION 	OF
TEACHERS, AFL-CIO,
Charging 	Party,
v.
SAN 	DIEGO 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
)
)
)
)
)
) 	Case 	No. 	LA-CE-1905
PERB 	Decision 	No. 	662
April 	5, 	1988
)
)
)
)
)
)
)
Appearances; 	Liebert, 	Cassidy & 	Frierson by Larry J. 	Frierson
for 	San Diego Community College 	District; 	James M. 	Gattey,
Attorney, 	for San Diego Adult Educators, 	Local 4289, 	American
Federation 	of 	Teachers/California 	Federation of 	Teachers,
AFL-CIO.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	The 	San 	Diego 	Community College
District 	(District) 	excepts 	to 	the 	attached proposed 	decision
by an 	administrative 	law 	judge 	(ALJ) 	of 	the 	Public 	Employment
Relations Board 	(PERB or Board). 	In that decision, 	the ALJ
ruled that the District violated sections 3543.5(a), 	(b), 	and
(c) of the Educational Employment Relations Act (EERA or Act)1 '1."-' ,_ I	MULI
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein 	are 	to 	the 	Government 	Code.
Section 3543.5 provides, 	in pertinent part, 	as 	follows:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose 	or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
_____________ )

when 	it 	failed 	to bargain with 	the 	San 	Diego Adult 	Educators,
American 	Federation 	of 	Teachers/California 	Federation 	of
Teachers, 	AFL-CIO, 	(SDAE or Union) 	about 	the decision, 	and the
effects 	of 	the 	decision, 	to contract 	out work performed by
certain bargaining unit 	members. 	After 	a 	full 	review of 	the
record below, 	the Board affirms 	the ALJ's decision, 	consistent
with 	the 	following 	determinations 	and 	order.
FACTS
On March 9, 	1983, 	the District, 	through the Board of
Trustees, 	decided 	to discontinue offering 	language 	classes 	in
German, 	French 	and 	Spanish 	through 	the 	fee-based program. 	The
classes 	were 	not 	given 	for 	credit, 	but were 	taught by
certificated 	unit 	employees 	represented by 	SDAE. 	The 	teachers
for 	the 	German, 	French and 	Spanish classes 	were 	long-time
District 	employees, 	and were paid 	according 	to 	the 	regular
salary 	schedule 	applicable 	to 	all 	full-time 	District
instructors 	at 	the 	community college. 	Although 	fees 	were
charged 	students 	who 	took 	the 	classes, 	the 	fees 	did not 	cover
the 	expenses 	the 	District 	incurred by offering 	the 	classes, 	due
almost 	exclusively 	to 	the 	salaries 	received by 	the 	teachers.
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.
22

Thus, 	the decision to discontinue 	fee-based French, 	German and
Spanish 	language 	classes 	was 	made 	solely because 	of 	an 	economic
condition 	caused by 	the 	salaries 	received by 	the 	instructors 	in
those 	classes.
Almost 	immediately, 	and 	continuing 	for 	several 	months
thereafter, 	the 	District began 	to 	receive 	pressure 	from 	the
public 	to restore 	classes 	in the 	three 	languages. 	This
pressure 	took 	the 	form of 	appearances 	at 	Board 	of 	Trustee
meetings, 	as well as 	letters 	to the 	District. 	All 	those who
were heard 	from 	expressed 	a 	desire 	that 	the 	District 	reinstate
the 	fee-based 	German, 	French and 	Spanish 	classes.
On May 4, 	1983, 	the public again made 	several presentations
at 	the 	Board 	of 	Trustees 	meeting, 	urging 	that 	the 	District
restore 	the classes. 	The board, 	in response to this pressure,
directed 	Chancellor 	Garland 	Peed 	to 	investigate 	the 	cost 	of 	and
alternatives 	to 	the 	restoration of 	the 	foreign 	language
classes. 	In 	the meantime, 	the 	three affected teachers who had
been 	laid 	off 	initiated hearings 	under 	the 	Education 	Code,
protesting 	their 	layoffs. 	On May 10, 	a proposed decision was
issued by 	a hearing 	officer, 	ruling 	that 	the 	discontinuance 	of
the 	language 	classes 	was 	proper 	and 	that 	therefore 	the
termination of 	the 	teachers 	was 	permissible 	under 	the 	statute.
The 	proposed 	decision 	was 	adopted by 	the 	Board 	of 	Trustees 	at
its May 23 meeting.
In 	addition 	to 	adopting 	the 	proposed 	decision 	concerning
the 	teacher 	terminations, 	the 	Board of 	Trustees 	at 	the May 23
meeting 	discussed 	again 	alternatives 	to 	discontinuing 	the
3

language 	classes. 	There 	were 	essentially 	four 	alternatives
presented: 	(1) 	students 	could be urged 	to take 	regular,
college-credit 	language 	classes 	in 	lieu 	of 	the 	fee-based,
non-credit 	classes; 	(2) 	the Parks 	and 	Recreation Department
could be 	asked 	to 	take 	over 	administration 	and 	financing 	of 	the
language 	classes; 	(3) 	the YMCA could be approached to see 	if 	it
would offer 	the 	language 	classes; 	and 	(4) 	the 	San Diego
Community College 	District Foundation, 	Inc. 	(Foundation) 	could
be 	asked 	to 	offer 	the 	same 	classes 	that had been 	eliminated by
the 	District.
The 	Foundation was 	established 	sometime 	in 	the 	mid-1970s 	as
a 	general 	non-profit 	corporation. 	The 	stated purpose 	and
objective 	of 	the 	Foundation 	is 	to assist 	and promote 	the
educational 	activities 	of 	the 	District. 	The 	Foundation has 	no
members 	and 	is 	governed by a 	five-member board 	of 	directors.
According 	to June 	1983 	amendments 	to the 	original bylaws, 	each
individual 	member 	of 	the 	Foundation board 	is 	designated by a
member of 	the 	District 	Board of 	Trustees. 	At 	the 	time of 	the
instances 	relevant 	to 	this 	matter, 	Garland Peed was 	not 	only
Chancellor 	for 	the 	District, 	but he 	also 	served 	as 	Foundation
President.2
After 	the 	alternatives 	were discussed, 	the 	Board of
Trustees 	instructed 	the 	Chancellor 	to 	contact 	the 	Foundation 	to
2The 	Foundation had only one 	office, 	and 	it was 	located
in 	the 	Chancellor's 	office 	in 	the 	District building. 	Rent was
paid by 	the 	Foundation 	to 	the 	District 	for 	use 	of 	this 	space.
A	4

see 	if 	it 	could offer 	the 	French, 	German and Spanish 	language
classes 	formerly 	offered 	by 	the 	District's 	fee-based 	program.
If 	so, 	then 	the 	Chancellor was 	to prepare 	the necessary papers
to 	enable 	the 	Foundation 	to 	take 	over 	the 	classes.
The 	District 	would 	continue 	to 	offer 	other 	language 	classes
in 	its 	fee-based program, 	including 	languages 	such as 	Farsi,
Swedish 	and 	Tagalog. 	The 	District 	could 	afford 	to 	continue 	to
offer 	those 	language 	classes because 	the 	instructors 	of 	those
classes 	were 	paid on an hourly basis, 	rather 	than on 	the
certificated 	salary 	schedule 	as 	were 	the 	teachers 	of 	the
French, 	Spanish and German classes. 	Thus, 	the 	District did not
lose 	any money by offering 	those 	classes, 	as 	the 	instructors'
salaries 	were 	met 	through 	the 	fees 	received 	from 	the 	students
who enrolled 	in the 	classes. 	The 	Foundation, 	in offering the
French, 	German and 	Spanish language 	classes, 	would pay 	the
instructors 	on an hourly basis 	based 	on 	class 	size 	rather 	than
on 	teaching experience and, 	thus, 	would pay to 	the 	affected
language 	teachers 	an 	amount 	much 	smaller 	than 	the 	teachers
employed by 	the 	District. 	On June 	2, 	the deans of 	the various
campuses 	in 	the 	District 	were 	told 	to begin hiring 	teachers 	for
the 	Foundation 	language 	classes. 	Evidently some 	of 	the 	former
employees 	of 	the 	District 	classes 	were hired by 	the
Foundation. 	The 	actual 	contract between 	the 	District 	and 	the
Foundation 	regarding French, 	Spanish, 	and German class
instruction was 	entered 	into on 	June 	22.
From June 	through August, 	public 	criticism of 	the
District's 	decision 	not 	to offer 	fee-based 	language 	classes 	in
5

French, 	German 	and 	Spanish continued. 	In testimony 	taken by
the 	Board 	of 	Trustees 	on August 	3, 	several 	students 	and 	former
language 	faculty members 	commented 	that 	singling 	out 	the
French, 	German 	and 	Spanish 	teachers 	was 	discriminatory because
the 	District 	was 	still 	offering other 	fee-based 	language
classes.
On August 	22, 	the 	Trustees 	agreed 	to ask 	the 	Foundation 	to
teach 	all 	fee-based 	language 	classes 	formerly 	taught by 	the
District, 	including the classes in Tagalog, 	Farsi, 	Swedish, 	etc,
On December 	21, 	1983, 	the 	SDAE 	filed an unfair practice
charge 	alleging a violation of 	section 3543.5(b) 	and 	(c). 	The
charged 	alleged 	that 	the 	District 	violated 	the 	Act by: 	(1)
interfering with 	the 	Union's 	right 	to 	represent 	members 	and
denying 	the 	Union 	the 	right 	to 	represent 	its 	members 	in
negotiations 	over 	the 	contract with 	the 	Foundation; 	and 	(2)
failing 	to meet 	and 	negotiate 	in good 	faith with 	the 	Union 	over
the 	transfer 	of work 	from 	the 	District 	to 	the 	Foundation. 	In
other 	words, 	by discontinuing 	the 	fee-based 	language 	classes,
terminating permanent 	faculty members, 	and 	contracting with 	the
Foundation to 	teach 	language 	classes, 	the 	District 	failed 	to
bargain with 	the 	Union over 	those 	decisions, 	and 	thereby
interfered with 	the 	Union's 	right 	to 	represent 	its 	members 	on
this 	particular 	issue.
The 	charge was 	filed with PERB 	in a 	timely manner, 	but
there 	is 	no proof of 	service on 	the 	District 	attached 	to 	the
original 	charge. 	The 	regional 	attorney 	evidently noted 	this
66

when he 	communicated 	with 	the 	Union. 	A 	letter 	from 	the
District 	to 	the 	regional 	attorney 	references 	the 	charges being
received by 	the 	District 	sometime 	in 	January 	1984.
On April 	30, 	1984, 	the Union filed an amended charge
alleging 	that 	the 	District 	(1) 	interfered with, 	restrained, 	and
coerced 	employees because 	of 	the 	employees' 	exercise of 	rights
to 	join and participate 	in the 	Union; 	(2) 	interfered with 	the
Union's 	right 	to represent 	its members; 	and 	(3) 	failed to meet
and 	negotiate 	in 	good 	faith with 	the 	Union over 	the 	transfer 	of
work, 	referred 	to 	in 	the 	charge 	as 	"sub-contracting." 	With 	the
amended 	charge 	there was 	a proof of 	service; 	however, 	it 	showed
proof 	of 	service 	on PERB, 	not 	on the 	respondent. 	A cover
letter 	to 	PERB 	indicated 	that 	a 	copy of 	the 	charge 	was being
sent 	to 	the 	District 	concurrently with 	the 	PERB 	filing.
The 	complaint 	that 	issued on 	the 	charge 	simply 	states 	that
the 	conduct 	of 	the 	respondent 	"alleged 	in 	the 	charge 	designated
as 	Case No. 	LA-CE-1905, 	served during January 1984 	[and] 	as
amended and served on April 30, 	1984 	. 	. 	. 	states a prima facie
case. 	. . . " 	The 	answer was 	filed on June 	25, 	1984, 	and 	inter
alia, 	the 	District denied 	the 	allegations 	in the 	charge.
Several 	affirmative defenses were also raised, 	such as: 	(1) 	the
Foundation 	is 	a 	separate 	entity and 	is 	not 	under 	the 	control 	of
the 	District; 	(2) 	the charge 	is barred by the statute of
limitations 	as 	it was 	not 	served on 	the 	respondent until 	after
the 	six-month 	time 	limit; 	(3) 	the 	District cannot control 	the
Foundation, 	which 	is 	not 	a public 	school 	employer 	under 	EERA;
and 	(4) 	PERB 	lacks 	jurisdiction over 	the 	Foundation.
7

THE ALJ'S 	DECISION
The 	District 	initially 	moved 	to 	dismiss 	the 	complaint 	on
the 	grounds, 	inter 	alia, 	that 	it had 	not been 	served within 	the
six-month 	statute 	of 	limitations 	set 	out 	in 	section
3541.5(a)(I),3 PERB 	Regulation 32615(b),4 and PERB
Regulation 	32140.5n The 	District 	argued 	that, 	because 	service
was 	not 	effected 	until 	January 	1984, 	the 	charge 	could 	not 	be
3section 3541.5(a)(l) 	reads, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	issue 	a 	complaint 	in 	respect 	of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring 	more 	than 	six 	months 	prior 	to 	the
filing of the charge. 	. 	. 	.
4PERB 	Regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	Part 	III, 	section 	31001 et 	seq.
Regulation 32615(b) 	reads, 	as 	follows:
(b) 	Service 	and 	proof 	of 	service 	[of 	the
charge] 	on 	the 	respondent 	pursuant 	to
section 	3 2140 	are 	required.
5Regulation 	32140 	reads, 	in pertinent 	part:
(a) 	All 	documents 	referred 	to 	in 	these
regulations 	requiring 	"service" 	or 	required
to be 	accompanied by 	"proof 	of 	service,"
except 	subpoenas, 	shall be 	considered
"served" 	by 	the 	Board 	or 	a 	party when
personally 	delivered 	or 	deposited 	in 	the
first-class 	mail 	properly 	addressed. 	All
documents 	required 	to be 	served 	shall
include 	a 	"proof 	of 	service" 	affidavit 	or
declaration 	signed 	under 	penalty 	of 	perjury
which 	meets 	the 	requirements 	of 	section
1013(a) 	of 	the Code of Civil Procedure. 	. 	. 	.
8
•
• 	• 	•

considered 	filed until 	then, 	more 	than 	six months 	after 	the
date 	of 	the 	contract between 	the 	District 	and 	the 	Foundation.
The 	ALJ 	rejected 	the 	motion 	to dismiss 	because 	the 	respondent
could 	show 	no prejudice 	due 	to 	the 	late 	service, 	and 	the
deficiency was 	cured 	in a 	reasonable 	amount of 	time.
At 	the hearing on 	the merits, 	the 	District's 	various
arguments 	can be 	grouped 	into three major 	areas: 	(1) 	the
Foundation 	is 	not 	a public 	school 	employer 	under 	EERA section
3540.l(k),6 and 	thus 	PERB has 	no 	jurisdiction over 	its
activities; 	(2) 	the District did not contract out work, 	it
merely 	ceased 	to 	offer 	classes 	that 	were 	then offered by 	a
private 	corporation; 	(3) 	the 	SDAE waived any right to negotiate
by 	failing 	to 	request 	negotiations 	after 	it had 	notice 	of 	the
District's 	intentions; 	and 	(4) 	the established past practice of
the 	District 	was 	to have 	the 	Foundation 	take 	over 	courses 	that
the 	District 	no 	longer wished 	to offer.
The ALJ 	rejected 	all 	of 	the 	District's 	arguments 	and 	ruled
that 	the 	decision to contract out 	language 	classes, 	made 	in
June 	and 	formalized 	with 	the 	Foundation 	on June 	22 	was 	a
unilateral 	change. 	The ALJ noted 	that 	the 	original 	decision 	to
contract out, 	involving 	the French, 	Spanish, 	and German
6Section 	3540.l(k) 	reads:
(k) 	"Public school employer" 	or 	"employer"
means 	the 	governing board of 	a 	school
district, 	a school district, 	a county board
of education, 	or 	a county superintendent of
schools.
99

classes, 	was a permissible decision because, 	at 	the 	time 	the
decision was 	made, 	the 	District had decided not 	to offer 	these
classes, 	a decision 	that 	fell within management's prerogative.
As 	to PERB's 	jurisdiction over 	the 	Foundation, 	the ALJ
concurred 	that 	PERB had 	none. 	Thus, 	any 	remedy could only be
directed 	to 	the 	District 	and 	not 	to 	the 	Foundation.
Accordingly, 	an 	order 	was 	proposed 	that 	would 	restore 	the
status 	quo ante 	of 	June 	22 	and would make 	whole 	the 	amount 	of
salaries 	lost by language 	teachers 	laid 	off 	due 	to 	the
contracting 	out.
DISCUSSION
As 	a 	threshold 	question, 	we 	confront 	first 	the 	argument
that 	the 	charge 	was 	untimely because 	service was 	not
effectuated 	within 	the 	statutory 	six-month period, 	although 	the
charge 	was 	filed 	with 	PERB within 	six 	months.7
Other 	jurisdictions 	are 	not helpful 	in 	giving 	PERB
guidance, 	because most 	states' 	labor 	laws 	are modeled after 	the
National 	Labor 	Relations 	Act 	(NLRA) 	which requires
that 	no 	complaint 	shall 	issue based on any
unfair 	labor 	practice 	occurring more 	than
six months 	prior 	to 	the 	filing of 	the 	charge
7The 	charging party 	failed 	to 	file 	its 	"proof 	of 	service"
showing 	service 	on 	the 	District 	for 	either 	the 	original 	or 	the
amended charge. 	The District, 	however, 	does not dispute 	that
it did receive 	the 	first charge, 	albeit 	later 	than 	the date of
filing with 	PERB. 	Further, 	the 	District has 	never 	denied 	that
it 	received 	the 	amended 	charge, 	even 	though 	the proof 	of
service 	does 	not 	indicate 	service on the 	District. 	As 	noted
above, 	the 	cover 	letter 	sent with 	the 	amended charge 	to PERB
references 	that 	the 	District 	was 	served 	concurrently with 	the
PERB 	filing.
10

with 	the board 	and 	the 	service 	of 	a 	copy
thereof 	upon 	the 	persons 	against 	whom 	such
charge 	is made. 	(29 USC 	sec. 	160(b).)8
That 	is, 	in most 	states 	service upon the parties 	is 	required by
statute 	rather 	than by regulation. 	Likewise, 	states 	that 	do
not 	require 	proof 	of 	service by 	statute 	rarely have 	regulations
that 	address 	the 	issue of 	service. 	Those 	that 	do 	require 	such
proof 	do 	not 	use 	language 	analogous 	to 	the 	specific 	language 	of
the California regulation.1010
8 The 	nature 	of 	the 	NLRA, 	administered by the 	National
Labor 	Relations 	Board 	(NLRB), 	was 	reiterated 	in 	the Ninth
Circuit 	in 	the 	case 	Hospital 	and 	Service 	Employees 	Union, 	Local
399 	v. 	NLRB, 	798 F.2d 	1245 	[123 LRRM 	2234]. 	In that case, 	the
charge was 	timely 	filed within 	the 	six months. 	The respondent,
however, 	never 	received 	the 	charges 	from 	the 	charging party.
When 	the 	NLRB 	twice 	mailed 	the 	charges 	to 	the 	respondent, 	there
was 	no 	delivery due 	to 	the wrong 	address 	being 	used.
Eventually, 	a 	complaint 	was 	issued 	and 	the 	respondent 	answered
the 	complaint, 	even 	though 	it had been 	sent 	to 	the 	same wrong
address 	to which 	the 	charges 	had been 	sent 	on 	two 	separate
occasions. 	The 	NLRB dismissed 	the 	complaint 	on 	the 	grounds
that 	no 	service 	was 	effectuated. 	The Court 	of Appeal
reversed. 	The 	Court of 	Appeal 	noted 	that 	the 	charge 	was 	filed
within 	the 	six 	months 	and 	that 	the 	respondent had 	"actual
notice" 	within 	that 	same 	six-month period. 	Only 	if 	the
employer 	had been 	able 	to 	show prejudice 	would 	the 	court have
considered dismissing 	the 	charge. 	Furthermore, 	the 	complaint
issued by 	the 	NLRB 	and 	the 	answer 	filed by 	the 	respondent 	were
both 	completed 	within 	the 	six-month 	statute 	of 	limitations.
9s	9 ee,	see, 	e.g., 	Michigan Compiled Laws, 	section 423.216 	"No
complaint 	shall 	issue based 	upon 	any 	unfair 	labor 	practice
occurring more 	than 	six 	months 	prior 	to 	the 	filing of 	the
charge 	with 	the 	Commission and 	the 	service 	of 	a 	copy 	thereof
upon 	the 	person 	against 	whom 	the 	charge 	is 	made 	. . . " 	Statutes
in 	Illinois, 	Iowa, 	and Vermont 	impose similar service
requirements.
10	l se	Ose 10See, e.g., title 39, chapter 31 Revised Code of
Montana, 	section 39-31-404: 	"No notice of hearing shall be
issued based 	upon 	any 	unfair 	labor 	practice 	more 	than 	six
months before 	filing of 	the 	charge 	with 	the board." 	Nevada
Revised 	Statutes 	section 	288.110(4) 	provides: 	"The board may
11
10

While 	this 	Board has 	ruled 	that 	a 	failure 	to 	serve 	a party
will 	result 	in a dismissal 	of 	an appeal 	(Los Angeles 	Community
College District 	(1984) 	PERB Decision No. 	395), 	it has also
recognized 	that 	where 	the 	respondent has 	notice, 	late 	service,
coming 	after 	a 	petition 	for 	decertification has been 	timely
filed, 	will 	not bar 	a petition. 	(Santa Monica-Malibu 	Unified
School 	District 	(1987) 	PERB Order No. 	Ad-163.)
Here, 	we 	note 	that 	the 	charging party has 	complied with 	the
statute's 	six-month requirement. 	PERB regulations, 	however,
were 	not 	complied with 	in a 	timely manner. 	When 	considering
the 	charging party's 	non-compliance 	with 	the 	Board's 	service
requirements, 	we 	should 	read 	and 	apply PERB 	regulations 	in
light of 	their 	intended purpose, 	that 	is, 	to protect 	a
respondent 	from 	stale 	claims 	or 	to prevent prejudice because 	a
respondent 	was 	unable 	to defend 	itself 	due 	to 	the 	late 	service.
Here, 	the respondent alleges no prejudice. 	Moreover, 	we
note 	that 	the 	District was 	served with, 	and answered, 	the
complaint 	in 	this matter.11 Thus, 	we 	concur with 	the ALJ 	in
not 	consider 	any complaint 	or 	appeal 	filed more 	than 	six months
after 	the 	occurrence 	which 	is 	the 	subject of 	the 	complaint or
appeal." 	See 	also, 	New Jersey Statutes 	Annotated 	section
34:13A-5.4(c) 	chapter 	34:13A: 	"Provided 	that no complaint
shall 	issue based 	upon 	any 	unfair 	practice 	occurring more 	than
six 	months 	prior 	to 	the 	filing of 	the 	charge."
1 1we
12
llwe 	note 	the 	ruling 	of 	the 	Eighth 	Circuit 	Court 	of
Appeal 	in Thomsen v. 	United 	Parcel 	Service 	(1986) 	742 F.2d 	115
[122 LRRM 2865], cert. 	den. 	(1987) 	107 S.Ct. 	1886. 	That court
declined 	to 	adopt 	the 	NLRB 	rule 	of 	service 	within 	six months 	in
a 	lawsuit brought 	under 	a hybrid 	section 	301/Duty of 	Fair
Representation 	case, 	and 	instead balanced 	the 	equities 	in 	favor

holding 	that 	the 	late 	service was 	not 	fatal 	to 	the 	charging
party's 	cause 	of 	action.
As 	to 	the 	ALJ's 	conclusion 	that 	the 	Foundation 	is 	not 	an
employer 	under 	EERA, 	we 	also concur. 	Although 	there was 	much
overlapping of management, 	purpose, 	supervision, 	and operation,
key 	elements 	prevent 	the 	Foundation 	from being 	considered 	a
public 	employer. 	There 	is 	no common ownership 	that would
permit 	a 	finding 	that 	the 	Foundation 	is 	an alter 	ego of 	the
District. 	(Crawford Door Sales Co. 	(1976) 	226 NLRB 1 1 4 4 . ) 1 2
Nor, 	because of 	the 	lack of common ownership, 	can the
Foundation 	and 	the 	District be 	considered 	a 	single 	employer.
(Television 	Broadcast 	Technicians 	Union, 	Local 	1264 	v.
Broadcast 	Service 	(1965) 	380 US 	255.) 	Finally, 	the Foundation
cannot be 	an ostensible 	agent of 	the 	District. 	Even 	though 	the
District 	may 	inadvertently have 	caused 	third parties 	to believe
that 	the 	Foundation was 	its 	agent, 	California 	law requires 	that
it 	also be 	shown 	that 	third parties 	changed position 	in
reliance 	upon 	that 	representation. 	No 	evidence 	was 	presented
here 	to 	show any change 	in position.
Thus, 	under 	no 	theory can 	the 	Board 	exercise 	jurisdiction
over 	the 	Foundation and, 	for purposes of 	this case, 	the
Foundation 	will be 	considered 	a 	separate 	employer 	whose 	own
of 	a plaintiff 	who 	filed 	the 	lawsuit 	in a 	timely manner but 	did
not 	effectuate 	service at 	the 	same 	time.
12If 	the 	Foundation were 	the 	alter 	ego of 	the 	District,
its 	employees 	would be 	subject 	to 	the 	collective bargaining
agreement.
13

employees 	are 	not protected by EERA.. 	This 	finding, 	however,
does 	not 	absolve 	the 	District of 	liability. 	Rather, 	it proves
a point 	the 	District wishes 	to ignore, 	that 	is, 	work performed
by bargaining 	unit 	members 	is 	now being performed by 	nonunit
employees, 	at 	the 	specific behest of 	the 	District. 	Surely 	this
is 	contracting out 	in 	its 	most basic 	form.
The 	District 	initially 	raised 	the 	argument 	that 	it had 	the
right 	to discontinue 	services, 	that 	is, 	it had the right to
decide not 	to offer 	fee-based 	language 	classes. 	This 	is
correct, 	as 	the 	decision of what 	shall be offered 	in any
curriculum 	is 	strictly one 	for management. 	(Stanislaus 	County
Department 	of 	Education 	(1985) 	PERB Decision No. 	556.)
When, 	however, 	the 	District received public rebuke because
of 	its 	decision, 	it 	then 	sought 	alternatives 	to discontinuing
the 	language 	classes. 	By contracting with the 	Foundation, 	the
District 	continued 	to offer 	this 	service, 	albeit by using
instructors 	supplied 	by 	the 	Foundation.13 If 	the 	District
had 	truly ceased 	to offer 	the 	language 	instruction service, 	it
would 	not have 	contracted with 	the 	Foundation at 	all, 	and 	the
Foundation would have been 	free 	to 	decide 	for 	itself 	to offer
the 	language 	classes 	if 	it 	so desired. 	But because 	the
District 	contracted with 	the 	Foundation, 	it 	tacitly admitted
13Relationships 	between 	community 	college 	districts 	and
organizations 	like 	the 	Foundation are hardly those of 	strangers.
Instead, 	those 	relationships 	are 	regulated by Education Code
section 	72670 	and 	78020-23. 	Given 	the 	stated purpose of 	this
Foundation 	(supra, 	p. 	4 ) , 	and the benefits 	to the District arising
out 	of 	these 	two 	contracts, 	we 	find 	the dissent's 	focus 	on the
Foundation's 	payments 	to 	the 	District 	not 	to be 	significant.
14

that 	it 	wished 	to continue 	to offer 	certain classes, 	despite
its 	earlier 	position 	that 	it was 	discontinuing 	those 	services.
Therefore, 	contracting with 	the 	Foundation was 	a unilateral
removal 	of 	work 	from 	the bargaining 	unit.1 4 The 	unilateral
change 	was based 	solely on 	the high 	cost 	of 	instructors'
salaries. 	Unilateralism motivated 	solely by 	labor 	costs 	is
unlawful. 	(State of 	California 	(DPA) 	(1987) 	PERB Decision No.
648-S.)
The 	sole 	defense 	left 	to 	the 	District 	is 	that 	the 	Union
waived 	its 	right 	to negotiate 	over 	the 	decision 	and 	the 	effects
of 	the 	decision.
The March 9 decision 	to discontinue French, 	German, 	and
Spanish 	fee-based 	language 	classes 	was 	within 	its 	prerogative.
No duty 	to bargain 	that decision 	fell 	on 	the District. 	But, 	as
a 	result 	of public 	outcry, 	the 	District 	set 	in motion a course
of 	events 	that 	led 	to 	the 	contracting out 	of 	all 	of 	the other
fee-based 	language 	classes. 	Did 	the 	Union 	sleep on 	its 	rights,
or 	could 	it have 	foreseen 	the 	consequences 	of 	that 	first
decision?
we
15
14	14 we 	find 	the 	dissent's 	reliance 	on 	Fremont 	Union High
School 	District 	(1987) 	PERB Decision No. 	651 to be 	inapposite.
In 	that 	case, 	there was 	a 	substantial 	gap of 	some 	four years
before 	LaVerne 	College began offering 	its 	summer 	school.
Second, 	at 	no 	time was 	the public 	led 	to believe 	that 	the
summer 	school 	was 	offered by 	Fremont 	instead 	of 	LaVerne.
Finally, 	if 	LaVerne had not 	offered 	the 	summer 	school 	classes,
the 	evidence 	clearly 	showed 	that 	there 	would have been 	no
summer 	school. 	Here, 	the 	District quite obviously wanted 	the
benefits 	of 	offering 	the 	language 	courses 	without 	any of 	the
burden.

Charging party 	Exhibit 	No. 	20 	is 	the board action docket
item 	for 	May 	23 	and 	references 	alternatives 	concerning 	the
funding of 	certain discontinued 	classes. 	Five 	alternatives
were 	listed, 	including keeping 	the 	classes 	within 	the 	District
itself, 	requesting 	that 	Parks 	and 	Recreation provide 	courses,
or 	contracting with 	another 	agency 	such 	as 	the 	Foundation.
Considering 	that 	the 	contracting 	out 	option was 	one 	among 	five
alternatives, 	we do not 	view 	this 	docket 	item as 	specific
enough 	to 	give 	notice 	that 	the 	District had 	indeed determined
to 	contract 	with 	the 	Foundation.
The 	minutes 	of 	the May 	23 	meeting were 	only 	slightly more
specific: 	"Mr. 	Grady moved 	that 	the 	Chancellor be 	directed 	to
inform 	the 	Foundation 	that 	the 	District 	suggests 	that 	it 	offer
certain 	classes 	that 	the 	District 	is 	unable 	to offer: 	and 	that
the 	chancellor 	prepare 	the 	necessary 	contracts between 	the
District 	and 	the 	Foundation 	to 	facilitate 	the 	offering of 	those
classes by 	the 	Foundation." 	At 	that point, 	the 	District was
unsure 	if 	the 	Foundation was 	able 	to offer 	classes 	or 	if 	it
desired 	to. 	Thus, 	no action by the 	District 	could yet be 	said
to 	give 	notice 	that 	a decision would be 	made 	that would 	trigger
a 	request 	to bargain.
The 	next 	time 	the 	contract 	with 	the 	Foundation 	is 	mentioned
in 	the 	agenda was 	on June 	22, 	when the 	Trustees were asked 	to
ratify 	the 	contract. 	A request 	to bargain 	on 	that 	day would
have been 	futile 	as 	the 	contract had 	actually been 	negotiated
and merely needed 	adoption by the 	Trustees. 	Thus, 	the 	Union
was 	never 	notified, 	formally or 	informally, 	that unit work
16

would be 	done by nonunit 	employees, 	until 	the decision was
final.
Concerning 	the August 	22 	action, 	the 	docket 	item summary
says, 	"Consideration of 	answers 	to questions 	raised at 	the
August 	3, 	1983 	board meeting by concerned 	citizens/students 	re
the 	cancellation of 	certain 	foreign 	language 	classes 	in 	the
continuing 	education program." 	The 	recommendation 	that 	the
Chancellor 	made 	on 	the docket 	item was, 	"It 	is 	recommended 	that
the board 	discuss 	this 	item 	and 	issue 	appropriate 	instructions
to 	the 	chancellor." 	Certainly, 	there 	is 	no reason 	to believe 	at
that 	point 	that 	the 	District 	intended 	again 	to 	contract 	with
the 	Foundation 	to offer 	certain language classes. 	Thus, 	the
board 	agenda 	alone 	does 	not provide 	adequate 	notice 	to 	the
Union 	that 	the 	District 	was 	intending 	to make 	a unilateral
change.
The 	remaining 	question 	is 	whether 	the 	presence 	of 	the 	Union
president 	at 	the 	Chancellor's 	council meetings 	prior 	to 	the
board meeting, 	at which various 	items 	were discussed,
constitutes 	adequate 	notice. 	Could 	it be 	fairly said 	that 	the
Union 	knew 	about 	the 	pending 	action 	and 	that 	it 	did 	not 	request
negotiations?
No 	minutes 	were 	introduced 	concerning 	those 	meetings.
Thus, 	we have 	only 	the 	testimony of 	the 	Chancellor 	and 	the
testimony of 	the 	Union as 	to whether 	there was 	adequate
discussion. 	The ALJ 	ruled 	that 	the 	discussion was 	not
substantial 	enough 	to give 	rise 	to notice. 	Furthermore, 	the
purpose 	of 	the 	Chancellor's 	meeting was 	merely 	to 	review 	each
17

agenda 	item, 	not 	to predict 	what 	the 	Board of 	Trustees 	would
actually do. 	Therefore, 	even 	if 	the 	items 	were discussed at
the 	Chancellor's 	meeting, 	such a discussion would not
necessarily 	include 	the 	knowledge 	of 	action 	the board would
actually 	take based 	on 	their 	own discussion 	at 	the 	Board 	of
Trustees' meeting.
Based on 	the 	foregoing, 	we 	conclude 	that 	the 	Union did not
waive 	its 	right 	to negotiate. 	The 	District violated EERA
section 	3543.5(c) 	when 	it 	contracted out bargaining unit work
without 	providing 	the 	Union with 	notice 	and 	an 	opportunity 	to
negotiate.
REMEDY
In 	addition 	to 	the 	standard order 	to bargain 	the decision
to contract 	out 	and 	the 	effects 	of 	that decision, 	the ALJ
ordered 	that 	the 	contract 	with 	the 	Foundation be 	rescinded 	and
the 	instructors 	laid 	off 	on August 	22 be 	reinstated.
While 	the 	Board has 	the 	authority 	to 	order 	reinstatement
when 	appropriate, 	we 	decline 	to exercise 	that power here.
Reinstatement 	presumes 	that 	the 	District would 	not have 	laid
off 	these 	teachers but 	for 	this 	opportunity 	to 	contract 	out.
Based 	on 	the 	District's 	initial 	decision 	in March 	to 	cease
offering 	certain 	language 	classes 	unconditionally, 	we 	find 	it
highly probable 	that 	the 	District 	intended 	to get 	out 	of 	the
business 	of 	fee-based 	language 	classes, 	whether 	the 	Foundation
was 	available 	to 	step 	in or not. 	The 	evidence does 	not give us
any 	reasonable belief 	that 	the 	District 	intends 	to offer 	these
classes 	anymore. 	So long as 	it exercises 	its 	right not 	to
18

offer 	these 	classes, 	reinstatement 	is 	not 	appropriate.15
Back pay 	is 	appropriate, 	however, 	for 	those 	teachers who
were 	laid off 	as 	a 	result 	of 	the August 	22 	action. 	The pay,
with 	interest 	at 	the 	rate 	of 	10 percent per 	annum, 	and minus 	any
interim 	earnings, 	shall be owed 	from 	the 	date 	of 	the 	unlawful
layoffs 	until 	expiration of 	the 	contract 	with 	the 	Foundation.
Should 	the 	District have 	extended 	or 	renewed 	the 	contract 	under
the 	same 	conditions 	as 	the original 	contract, 	the back pay
would 	extend 	to 	that period 	as 	well.
The back 	pay 	award 	is 	not 	available 	to 	the 	instructors 	laid
off 	on March 9, 	however. 	That 	layoff occurred as 	a result of 	a
decision, 	later 	rescinded, 	to eliminate certain classes. 	The
District 	shall be 	required, 	however, 	to 	rescind any current
contractual 	arrangement 	with 	the 	Foundation 	to provide 	foreign
language 	courses 	that 	were 	contracted 	for 	on June 	22 	and
August 23, 	1983. 	Such agreements with 	the 	Foundation are 	the
result 	of 	unlawful 	decisions 	to contract 	out bargaining unit
work. 	The 	District must bargain any 	future 	decision 	to
contract 	out, 	and 	the 	effects 	of 	that 	decision. 	Said
bargaining 	shall 	continue 	until 	agreement 	is 	reached or until
the 	parties 	have 	exhausted 	impasse 	procedures.
ORDER
Upon 	the 	foregoing 	findings of 	fact, 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and pursuant 	to EERA
15Should 	the 	District 	again offer 	these 	classes,
reinstatement 	would be 	appropriate.
19

section 3541.5(c), 	it 	is hereby ORDERED that 	the 	San Diego
Community 	College 	District, 	its 	governing board, 	and 	its
representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in good
faith 	with 	the 	exclusive 	representative by 	taking 	unilateral
action 	on matters 	within 	the 	scope 	of 	representation,
specifically with reference 	to 	the decision, 	and 	the 	effects 	of
the 	decision, 	to contract with 	the 	San 	Diego Community College
District 	Foundation, 	Inc. 	for 	the provision of 	teaching
services 	formerly provided by members 	of 	the 	adult 	education
faculty bargaining 	unit.
2. 	Denying to the 	San Diego Adult Educators, 	Local 4289,
American 	Federation 	of 	Teachers/California 	Federation 	of
Teachers, 	AFL-CIO, 	its 	right 	to represent unit members by
failing 	and 	refusing 	to 	negotiate 	about 	matters 	within 	the
scope 	of 	representation.
3. 	Interfering with 	employees 	represented by 	the 	San 	Diego
Adult 	Educators, 	Local 4289 because of 	the 	exercise of 	their
right 	to 	select 	an 	exclusive 	representative 	to meet 	and
negotiate 	with 	the 	employer 	on 	their 	behalf by 	unilaterally
changing 	matters 	within 	the 	scope 	of 	representation without
first 	providing 	the 	exclusive 	representative 	with 	notice 	and
the 	opportunity 	to meet 	and 	negotiate 	about 	such matters.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
1. 	Meet 	and 	negotiate 	with 	the 	San 	Diego Adult 	Educators
20

Association, 	Local 	4289 	about 	the decisions of 	June 22 	and
August 	22, 	1983 	(and the effects of these decisions), 	to enter
into 	an 	agreement 	with 	the 	Foundation 	for 	the provision of
foreign 	language 	classes 	that 	were 	formerly 	taught by unit
employees 	until 	the parties 	reach agreement 	or 	exhaust 	the
statutory 	impasse 	procedure.
2. 	Make 	the employees 	laid off August 	22, 	1983, 	whole 	for
any 	loss 	of 	wages or benefits 	as 	a 	result of 	the 	unlawful
unilateral 	change, 	from 	the effective 	date of 	the unilateral
change 	until 	the 	expiration of 	the 	contract 	with 	the 	Foundation.
Should 	the 	original 	contract have been 	extended 	or 	renewed, 	the
back 	pay 	will 	continue 	through 	the 	succeeding 	contract 	terms.
3. 	Rescind 	any current 	contractual 	arrangement with 	the
Foundation 	to 	provide 	foreign 	language 	courses 	that 	were
contracted 	for on June 22, 	1983 	and August 	22, 	1983, 	until
bargaining has 	been 	completed, 	either by agreement 	or 	until
impasse 	procedures 	have been 	exhausted.
4. 	If, 	within 	one year of 	the 	date 	this 	Decision becomes
final, 	the 	District 	again offers 	fee-based language 	classes,
offer 	reinstatement 	to 	those 	employees 	who were 	placed 	on
layoff 	status 	by action 	of 	the 	District board 	of 	trustees 	on
August 22, 	1983.
5. 	Within thirty-five 	(35) 	days 	after 	this 	Decision 	is 	no
longer 	subject 	to reconsideration, 	post 	at 	all 	school 	sites 	and
all 	other 	work 	locations 	where notices 	to unit 	employees 	are
customarily placed, 	copies 	of 	the 	Notice 	to employees 	attached
as 	an Appendix hereto. 	The Notice 	must be 	signed by an
authorized 	agent 	of 	the 	District 	indicating 	that 	the 	District
21

will 	comply with 	the 	terms 	of 	this 	Order. 	Such posting 	shall
be 	maintained 	for 	a 	period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken 	to 	insure 	that 	the
Notice 	is 	not 	reduced 	in size, 	altered, 	defaced, 	or covered by
any other 	material.
6. 	Written notification of 	the 	actions 	taken 	to comply
with 	this 	Order 	shall be 	made 	to 	the 	Los 	Angeles 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance
with 	the 	director's 	instructions.
Members 	Craib 	and 	Shank 	joined 	in 	this 	Decision.
Member 	Porter's 	concurrence 	and dissent begin on page 	23.
22

Porter, 	Member, 	concurring and dissenting:
Timeliness 	of 	the 	Charge
As 	to 	the 	threshold 	issue 	concerning 	the 	timeliness 	of 	the
charge, 	I 	concur 	that 	the 	charge was 	timely 	filed within 	the 	six
months 	charge 	filing period 	set 	forth 	in Government 	Code 	section
3541.5, 	and 	that 	service 	is 	not a required component of 	an
effective 	filing under 	that 	statute.
In 	the 	instant 	case, 	the 	Charging 	Party 	filed 	the 	charge
within 	the 	applicable 	six-month 	period but 	did 	not 	serve 	a 	copy
thereof 	on 	the 	Respondent. 	While 	Government 	Code 	section 	3541.5
proscribes 	the 	issuance 	of 	a 	complaint based 	upon 	such 	a 	charge
when 	the 	alleged 	unfair 	practice 	occurred 	more 	than 	six 	months
"prior 	to the 	filing of 	the charge," 	there 	is 	no reference 	in
the 	statute 	as 	to any service of 	a copy of 	the 	charge 	on 	the
Respondent 	within 	the 	six-month period. 	Nor 	is 	there 	in 	the
general provisions of 	the Government 	Code 	(Gov. 	Code, 	secs.
5-24), 	of which EERA is a part, 	or 	in EERA's own general
definition section 	(Gov. 	Code, 	sec. 	3540.1), 	any definition
of 	the 	term 	"filing" 	as 	meaning or 	including service.
In a procedure 	analogous 	to EERA section 3541.5, 	with
respect 	to the 	timeliness 	of 	the 	commencement 	of 	civil 	actions,
Code of 	Civil 	Procedure 	section 350 provides 	that, 	"An action
is 	commenced, 	within 	the meaning of 	this 	Title 	[Of 	the 	Time 	of
Commencing Civil Actions], 	when the complaint 	is 	filed." 	In
such 	cases, 	the 	courts have held 	that 	the 	filing of 	the 	complaint
23

itself 	suffices 	to meet 	the 	timeline, 	and 	that 	service of 	a 	copy
of 	the 	complaint 	and/or 	summons 	on 	the 	defendant/respondent 	is
not 	necessary 	for 	the 	filing 	to be 	timely. 	(Code 	of 	Civ. 	P r o c ,
sec. 	350; 	Pimental v. 	City of San Francisco 	(1863) 	21 Cal. 	351;
Waters v. 	Superior Court 	(1962) 	58 Cal.2d 885, 	891; 	Ray v.
Industrial Accident Commission 	(1956) 	146 Cal.App.2d 393, 	397;
and 	see 	Ingram v. 	Superior 	Court 	(1979) 	98 	Cal.App.3d 483, 	495
(dis. 	opn.); 	3 Witkin, 	Cal. 	Proc. 	(3d ed. 	1985) 	Actions, 	sec.
506, pp. 531-532.)
In 	contrast, 	the 	applicable provision 	in the Agricultural
Labor 	Relations 	Act 	(ALRA) 	which was 	enacted by 	the 	Legislature
in 	the 	same year 	(1975) 	it 	enacted 	EERA,'1 prescribes 	that 	the
alleged 	unfair 	labor 	practice 	must 	not have 	occurred more 	than
six months 	"prior 	to 	the 	filing of 	the 	charge with 	the board 	and
the 	service 	of 	a 	copy 	thereof 	upon 	the person against 	whom 	such
charge 	is made. 	. . . " 	(Labor Code, 	sec. 	1160.2, 	emphasis
added.)2
Thus, 	we may not by 	interpretation or 	implication 	insert
-
a 	service 	requirement 	into 	the 	six-month 	charge 	filing period
delineated by Government 	Code 	section 	3541.5. 	(Cadiz 	v.
lEERA: 	Stats. 1975, ch. 961; ALRA: 	Stats. 3d Ex. Sess.
1975, ch. 1.
1EERA :
2AS 	noted by 	the 	majority, 	this 	additional 	requirement
of 	service 	is 	also 	found 	in the National Labor 	Relations Act:
29 U.S.C, sec. 160, subdiv. 	(b).
24

Agricultural 	Labor 	Relations 	Board 	(1979) 	92 	Cal.App.3d 	365,
371-372, 	hg. 	den.; 	Regents of the University of California v.
Public 	Employment 	Relations 	Board 	& Laborers 	Local 	1276, 	LIUNA,
AFL-CIO 	(1985) 	168 Cal.App.3d 937, 	944-945; 	Bailey v. 	Superior
Court 	(1977) 	19 Cal.3d 970, 	977-978; 	Estate of McDill 	(1975)
14 Cal.3d 831, 	838.) 	Likewise, 	while 	this 	Board may 	implement
EERA 	through 	the 	adoption 	of 	procedural 	regulations 	to
effectuate it 	(Gov. Code, 	sec. 	3541.3, 	subdiv. 	(g)), 	the Board
may not 	promulgate 	or 	apply such a 	regulation 	so as 	to 	create 	a
substantive 	change 	in EERA's provisions. 	(J.R. 	Norton Co. 	v.
Agricultural 	Labor 	Relations 	Board 	(1979) 	26 	Cal.3d 1, 	29;
Harris v. 	ABC Appeals Board 	(1964) 	228 Cal.App.2d 1, 	6, 	hg. 	den.;
Morris v. Williams 	(1967) 	67 Cal.2d 733, 	748; Whitcomb Hotel,
Inc. 	v. 	Calif. 	Employment Commission 	(1944) 	24 Cal.2d 753, 	759;
Calif. Welfare Rights Organ, 	v. 	Brian 	(1974) 	11 Cal.3d 237,
242-243, 	cert. den. 	419 U.S. 	1022; 	Cadiz v. Agricultural Labor
Relations Board 	(1979) 	92 Cal.App.3d 365, 	372-373, 	hg. 	den.) 	In
this 	regard, 	PERB's 	regulations 	dealing with 	the 	filing of 	an
unfair 	practice 	charge 	prescribe 	service 	of 	a 	copy of 	the
charge, 	on the respondent. 	(Cal. Admin. 	Code, 	tit. 8, 	sec.
33615, 	subd, 	(b).) 	While 	it 	is appropriate to require service
of 	the 	charge 	on 	the 	respondent 	in order 	to 	facilitate 	the
processing of 	the 	charge 	and 	to apprise 	the 	respondent 	of 	the
filing of 	the 	charge, 	the 	regulation may not be 	applied 	so as 	to
necessitate 	service 	as 	an 	essential 	requirement 	for 	a 	timely
25

filing pursuant 	to 	Government 	Code 	section 	3541.5.3
The 	Transfer 	or 	Contracting 	Out 	of 	Bargaining 	Unit Work
The 	District 	is 	alleged 	to have 	committed 	an unfair 	practice
by 	either 	having 	transferred bargaining 	unit 	work 	to 	non-unit
employees 	or 	by having 	contracted 	out/subcontracted 	such
bargaining 	unit 	work. 	The ALJ 	found 	that 	the 	District 	and 	the
Foundation did 	not 	constitute 	a 	"single 	employer," 	that 	the
Foundation was 	not an 	"alter ego" of 	the 	District, 	and that
the 	Foundation was 	a 	separate 	employer. 	The ALJ 	accordingly
concluded 	that 	"there 	is 	no basis 	for 	deciding 	that 	the
District's 	action 	in 	contracting with 	the 	Foundation 	amounted 	to
a 	transfer 	of 	unit work 	to non-unit 	employees." 	Instead, 	the ALJ
found 	it 	appropriate 	to characterize 	the 	District's 	action as 	"a
subcontracting or 	contracting 	out 	of 	services."
My 	colleagues 	agree 	with 	the 	ALJ—and 	I 	concur—that 	there
is 	no 	"single 	employer" 	or 	"alter ego" 	relationship between
the 	District 	and 	the 	Foundation, 	and 	that 	the 	Foundation 	is 	a
separate 	employer. 	The majority 	then 	asserts 	that 	since 	work
previously 	performed 	by bargaining 	unit 	members 	(employed
3Independent 	of 	section 3541.5, 	certain consequences 	may
occur 	where 	service 	is 	not 	effected pursuant 	to PERB 	Regulation
32615. 	For 	example, 	the 	charge may not be processed 	until
service 	is 	accomplished, 	or an adverse 	ruling 	in a 	subsequent
evidentiary motion 	may 	result 	when 	the 	respondent 	can
demonstrate 	prejudice due 	to 	the 	lack 	of 	service. 	However,
since 	service 	is 	not 	a 	required 	component 	of 	a 	timely 	filing
under 	section 	3541.5, 	any question as 	to whether 	the 	respondent
was 	prejudiced by 	the 	lack 	of 	such 	service 	is 	not 	germane 	to 	the
timeliness 	issue 	under 	section 	3541.5.
26

by 	the 	District) 	is 	now being performed by 	"non-unit 	employees"
(employed by 	the 	Foundation) 	at 	the 	specific behest 	of 	the
District, 	that 	"[s]urely this 	is 	contracting out 	in 	its most
basic 	form."
PERB 	case 	law, 	in accord with private 	sector 	case 	law,
establishes 	what 	constitutes 	an 	unlawful 	unilateral 	transfer
of bargaining unit 	work 	to non-unit 	employees. 	An unlawful
transfer 	occurs 	where 	an 	employer 	unilaterally 	transfers 	work
done by 	its 	employees 	in one bargaining 	unit 	to 	"non-unit
employees." 	Non-unit 	employees 	are 	defined 	as 	other 	employees
of 	the 	employer 	who are 	either 	in 	another bargaining unit 	or 	who
are 	not 	in any bargaining 	unit.4 Since 	the 	Foundation 	is 	a
4Rialto 	Unified School 	District 	(1982) 	PERB No. 	209,
pages 	4-5 	(transfer 	of 	counseling 	work 	from 	district 	employees
in 	a 	certificated bargaining unit 	to district 	employees 	in 	a
classified bargaining unit); 	Solano County Community College
District 	(1982) 	PERB No. 	219, 	pages 	8-9 	(transfer of off-campus
and 	tutoring 	services 	from district 	employees 	in 	a 	classified
bargaining 	unit 	to district 	employees 	in 	a 	certificated
bargaining unit); 	Mount 	San Antonio 	Community College 	District
(1983) 	PERB No. 	334, 	pages 	8-11 	(transfer of chairperson work
from 	district 	employees 	in 	a 	certificated bargaining 	unit 	to
district 	employees who were not 	in any bargaining unit); 	Goleta
Union School 	District 	(1984) 	PERB Decision No. 	391, 	pages 	19-20
(transfer 	of 	counseling work 	from district 	employees 	in 	a
certificated bargaining 	unit 	to 	new 	district 	employees 	who 	were
not 	in any bargaining unit); 	Eureka City School 	District 	(1985)
PERB Decision No. 	481, 	pages 	14-15 	(transfer of 	special
education 	work 	from 	district 	employees 	in 	a 	certificated
bargaining 	unit 	to 	district 	employees 	in 	a 	classified bargaining
unit); 	State of California 	(Department of Developmental 	Service)
(1985) 	PERB Decision No. 	484-S, 	pages 4-5 	(transfer of work
from department 	employees 	in a psychiatric 	technicians'
bargaining unit 	to department 	employees 	in a hospital workers 1
bargaining unit); 	Bldg. Material & Constr. 	Teamsters' 	Unit v.
Farrell 	(1986) 	41 Cal.3d 651, 	660-661 	(transfer of 	truck
27

separate employer, 	and there 	is no 	"single 	employer" 	or 	"alter
ego" 	relationship whereby 	the 	Foundation's 	employees 	could be
considered 	"non-unit 	employees" 	of 	the 	District, 	no unlawful
transfer 	of bargaining unit 	work 	is 	established by 	the 	record 	in
this case.
There being 	no 	unlawful 	transfer 	of bargaining 	unit 	work,
the 	remaining 	issue 	is whether 	the 	District 	unlawfully
"contracted 	out 	or 	subcontracted" 	bargaining 	unit 	work.5
Similar 	to 	an unlawful 	transfer 	of bargaining 	unit 	work,
what 	constitutes 	improper 	"contracting out" 	or 	"subcontracting"
is 	established by PERB case 	law, 	which 	is 	also 	in accord with
driving work 	from city employees 	in a 	teamsters' 	bargaining
unit 	to new city employees 	who were 	not 	in 	the 	teamsters'
bargaining unit); 	Soule Glass 	& Glazing Co. 	v. 	NLRB 	(1st Cir.
1981) 652 F.2d 1055 L107 LRRM 2781, 	2797-2799] 	("single
employer" 	case 	involving 	transfer 	of 	glass 	replacement work
from bargaining 	unit 	employees 	in 	the 	"union" 	company to
non-bargaining unit employees 	in the 	"non-union" 	company);
Boeing 	Company v. 	NLRB 	(9th Cir. 	1977) 	581 F.2d 	793 	[99 LRRM
2847] 	(transfer 	of welding work 	from company employees 	in one
bargaining unit 	to 	company 	employees 	in 	another bargaining
unit); 	University of Chicago v. 	NLRB 	(7th Cir. 	1974) 	514 F.2d
942 	[89 LRRM 	2113] 	(transfer of 	custodial work 	from
university's 	employees 	in one bargaining 	unit 	to university's
employees 	in another bargaining unit); 	and Office &
Professional Employees v. 	NLRB 	(D.C. 	Cir. 	1969) 	419 F.2d 314
[70 LRRM 	3047] 	(transfer 	of 	auditing work, 	along with 	two
company 	employees, 	from a bargaining unit 	to two new company
"exempt employee" positions outside of bargaining unit).
5If 	there 	was 	an unlawful 	transfer, 	then 	there 	could be
no 	"contracting 	out 	or 	subcontracting" 	as 	transfers 	are
separate 	from 	and mutually exclusive 	of 	the 	concept 	of
contracting out or 	subcontracting. 	(Bldg. 	Material & 	Constr.
Teamsters' 	Union v. 	Farrell 	(1986) 	41 Cal.3d 651, 	661;
Roseville Joint~Union H.S. 	District 	(1986) 	PERB No. 	580, 	dis.
opn., 	p. 	13) 	fn 	1.)
28

private 	sector 	case 	law. 	An unlawful 	"contracting out" 	or
"subcontracting" 	occurs 	where 	an 	employer 	unilaterally 	takes
bargaining 	unit 	work 	and 	contracts 	with 	and 	pays 	an 	independent
contractor 	(e.g. 	another 	employer) 	for 	the 	independent
contractor's 	employees 	to perform or 	supply such work. 6	6
I 	cannot 	agree 	with my colleagues 	that 	the 	record before 	us
demonstrates 	that 	the 	District 	unlawfully 	"contracted 	out" 	or
"subcontracted" 	bargaining 	unit 	work.
6Archoe 	Union School 	District 	(1983) 	PERB No. 	360, 	pages
4, 	6-7 	(district 	contracted 	with 	and 	paid 	private 	firm 	to have
the 	private 	firm's 	employees 	do 	custodial 	work 	which had been
bargaining unit work of district employees); 	Oakland Unified
School 	District 	(1983) 	PERB Decision No. 	367, 	pages 	3-4
(district 	contracted 	with 	and 	paid 	private 	"temporary help"
agency 	to have 	the 	agency's 	employees 	perform 	secretarial
and 	clerical 	work 	which 	was bargaining 	unit 	work 	of 	district
employees); 	El Dorado Union High School District 	(1986) 	PERB
Decision No. 	564, 	pages 	1, 	18-20 	(attached ALJ's proposed
decision) 	(district 	contracted with 	and 	paid 	Greyhound
Corporation 	for 	Greyhound's 	employees 	to do bus 	driving work
which 	was 	bargaining 	unit 	work 	done by district's 	bus 	driver
employees); 	Fibreboard Paper Products Corp. 	v. 	NLRB 	(1964)
379 	U.S. 	203 	L13 	L.Ed.2d 	233 	(company contracted with 	and paid
an 	independent 	contractor 	to 	do maintenance 	work 	at 	company
plant, 	which had been bargaining 	unit 	work 	done by 	company's
employees); AFC Industries, 	Inc. v. NLRB 	(8th Cir. 	1979)
592 	F.2<3 	422 	[l00 	LRRM 	2710] 	(company 	contracted with 	and paid
another 	company 	to 	do part 	of 	trailer hitch work 	which was
bargaining unit work of the 	first company's employees); 	United
Auto Workers v. 	NLRB 	(D.C. 	Cir. 	1967) 	381 F.2d 265, 	266
[64 LRRM 2489] 	cert, 	den., 	389 U.S. 	857 	(company contracted
with 	and 	paid 	another 	firm 	to have 	firm's 	employees 	do
"parking" 	work 	which had been bargaining 	unit 	work 	of 	company's
employees); Westinghouse Electric Corp. 	(Mansfield Plant)
(1965) 	150 NLRB 	1574 [58 LRRM 1257, 	1258-1259] 	(company
contracted 	with 	and 	paid 	various 	other 	entities 	for 	maintenance
work 	and 	manufacturing work 	which 	the 	company's 	maintenance
bargaining 	unit 	employees 	and 	manufacturing bargaining 	unit
employees had performed).
29
6

First, 	the 	District 	could 	lawfully discontinue 	its 	offering
and operation of 	the adult, 	noncredit, 	fee-based language
courses. 	This 	it 	could do because 	such courses were 	not
mandated by the 	State. 	Nor was 	it unlawful 	for 	the 	District
to 	arrange 	for 	another 	entity 	to 	offer 	and 	operate 	such 	courses
provided 	the 	District 	itself was 	not 	funding 	or paying 	the 	other
entity. 	(Stanislaus 	County Department of 	Education 	(1985) 	PERB
Decision No. 	556, 	pp. 	3-5 and 6-7, 	dis. 	opn.) 	Receiving
community pressure 	for 	the 	continued offering of 	the 	fee-based
courses 	at 	issue, 	the 	District 	trustees 	directed 	their
superintendent 	to explore 	alternatives 	to 	the 	District's
continued offering of 	such 	courses. 	Entities 	considered 	as
potential 	providers 	of 	the 	courses 	included 	the 	city department
of parks 	and recreation, 	the YMCA, 	the YWCA, 	and the Foundation.
The 	District 	trustees 	ultimately 	requested 	that 	the 	Foundation
offer 	the 	courses.7
7Noteworthy 	in 	the 	record 	is 	the 	exchange between 	the
District 	trustees 	when 	Trustee 	Grady moved 	to 	request 	the
Foundation 	to offer 	the 	classes, 	and 	Trustee French 	seconded
the motion:
Trustee 	French; 	I 	second with 	a question.
I'd 	like 	to 	see 	the motion 	say 	that 	the
District 	reinstate 	these 	foreign 	classes 	and
that—the 	means 	by which—that 	it 	would be
under 	the 	Foundation 	and/or 	various 	college
courses.
Trustee Grady: 	Well, 	Mr. 	French, 	at the
risk 	of 	losing my second, 	I would not accept
the 	language because 	in view of 	the 	action
1 30

Second, 	the 	District 	did 	not 	pay or 	fund 	the 	Foundation 	to
-
offer 	the courses. 	In 	fact, 	the 	contract between the 	District
and 	the 	Foundation 	required payment by 	the 	Foundation 	to 	the
District 	for 	the 	lease 	of 	facilities,8 publication of 	the
Foundation's 	courses 	in 	the 	District's 	schedule of 	classes 	and
certain 	administrative 	support. 	The 	record 	indicates 	that 	the
District, 	in 	fact, 	received $10,570 	from 	the 	Foundation 	for 	the
-
services 	that 	it provided pursuant 	to 	the 	contract 	in 	connection
with 	the 	Foundation's 	provision of 	classes 	from 	September 	to
November 	1983.
A 	somewhat 	similar 	situation 	arose 	in 	Fremont 	Union 	High
School 	District 	(1987) 	PERB Decision No. 	651 when, 	after 	certain
nonmandated 	courses 	had been discontinued 	for 	a period 	of 	years,
taken earlier, 	in view of 	the actions 	that
have been 	taken 	throughout 	this 	Spring, 	the
District 	is 	not 	taking any action whatsoever
under 	Alternative 	4 	[requesting 	the
Foundation 	to offer 	the classes] 	to
reinstate 	these 	classes but 	is 	just 	informing
the 	Foundation 	that 	it—we 	will 	provide 	any
assistance 	that 	the 	District has 	as 	its--has
available 	in order 	for 	the 	Foundation 	to
offer 	classes 	to 	the 	students 	that were
previously 	served by 	the 	District; 	but 	the
District has 	made 	a—adopted 	a 	stance 	of
cancelling 	the 	classes 	and 	the 	District
cannot 	reinstate 	the 	classes 	without
reversing 	all 	of 	its previous 	position.
8 The 	District was 	actually subleasing 	facilities 	it had
leased 	from 	the 	San Diego Unified 	School 	District. 	And 	since
the 	Foundation, 	not 	the 	District, 	would be offering the 	courses
on 	San Diego USD property, 	the 	Foundation was 	not under 	the 	same
minimum 	student-age 	restrictions 	which 	San 	Diego 	USD had 	placed
on 	the 	San Diego 	Community 	College 	District.
31
n

pressure 	arose 	in 	the 	community 	for 	the 	district 	to 	restore 	and
offer 	the 	courses 	again. 	The Fremont district 	then went out 	and
secured 	the 	private 	University of 	La Verne 	to 	offer 	and 	operate
the 	courses, 	and 	in 	connection 	therewith 	contracted with 	the
University of 	La Verne 	to 	lease 	district 	classrooms 	for 	the
courses. 	As 	in the 	instant case, 	while 	the Fremont district
sought out 	the 	University of La Verne 	to offer 	the 	courses, 	it
did 	not 	pay or 	fund 	the 	University of 	La Verne 	to offer 	and
operate 	the 	courses. 	In Fremont, 	this 	Board 	found no
"contracting 	out" 	or 	"subcontracting." 	Although 	there may have
been more 	indicia 	of 	limited 	"control" by 	the 	District 	in 	this
case 	with 	respect 	to 	the 	choice 	and 	operation of 	the 	classes,
such 	control 	did 	not 	amount 	to 	"ultimate 	control." 	(Fremont
Union High School 	District 	(1987) 	PERB Decision No. 	651, 	p. 	19;
and see Fibreboard Paper Products 	Corp. 	v. 	NLRB 	(1964) 	379 U.S.
203 at 224, 	Stewart, 	J., 	cone.)
I 	would dismiss 	the 	charges.
32

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice 	Case No. 	LA-CE-1905,
San Diego Adult 	Educators, 	Local 4289, 	American Federation of
Teachers/California 	Federation of 	Teachers, 	AFL-CIO v. 	San
Diego 	Community 	College 	District, 	in which 	all 	parties 	had 	the
right 	to participate, 	it has been 	found that 	the District
violated Government Code sections 3543.5(a), 	(b), 	and 	(c) by
failing 	to negotiate 	the 	decisions 	(and 	the 	effects 	of 	such
decisions) 	to 	contract with 	the 	San 	Diego 	Community College
District 	Foundation 	to provide 	foreign 	language 	courses 	that
were 	formerly provided by 	the 	District's 	adult education
faculty unit 	employees.
As 	a result of 	this 	conduct, 	we have been ordered 	to post
this 	Notice 	and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in good
faith 	with 	the 	exclusive 	representative by 	taking 	unilateral
action 	on matters 	within 	the 	scope 	of 	representation,
specifically with reference 	to 	the decision, 	and 	the 	effects
of 	the 	decision, 	to contract with 	the 	San 	Diego Community
College 	District 	Foundation, 	Inc. 	for 	the provision of
teaching 	services 	formerly provided by members 	of 	the 	adult
education 	faculty bargaining 	unit.
2. 	Denying 	to the 	San 	Diego Adult 	Educators, 	Local
4289, 	American Federation of 	Teachers/California 	Federation of
Teachers, 	AFL-CIO, 	its 	right 	to represent unit members by
failing 	and 	refusing 	to 	negotiate 	about 	matters 	within 	the
scope 	of 	representation.
3. 	Interfering with 	employees 	represented by 	the 	San
Diego Adult 	Educators, 	Local 4289, 	because of 	the exercise of
their 	right 	to 	select 	an 	exclusive 	representative 	to meet 	and
negotiate 	with 	the 	employer 	on 	their behalf by unilaterally
changing 	matters 	within 	the 	scope 	of 	representation without
first 	providing 	the 	exclusive 	representative 	with notice 	and
the 	opportunity 	to meet 	and 	negotiate 	about 	such matters.

B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Meet 	and 	negotiate 	with 	the 	San 	Diego Adult
Educators Association, 	Local 4289, 	about 	the decisions of 	June
22 	and August 	22, 	1983 	(and the effects of these decisions),
to 	enter 	into 	an 	agreement with 	the 	Foundation 	for 	the
provision 	of 	foreign 	language 	classes 	that 	were 	formerly
taught by 	unit 	employees 	until 	the 	parties 	reach agreement 	or
exhaust 	the 	statutory 	impasse 	procedure.
2. 	Make 	the employees 	laid off August 22, 	1983, 	whole
for 	any 	loss 	of wages 	or benefits 	as 	a 	result of 	the unlawful
unilateral 	change, 	from 	the 	effective 	date 	of 	the 	unilateral
change 	until 	the 	expiration 	of 	the 	contract 	with 	the
Foundation. 	Should 	the 	original 	contract have been extended
or 	renewed, 	the back 	pay will 	continue 	through 	the 	succeeding
contract 	terms.
3. 	Rescind 	any 	current 	contractual 	arrangement 	with
the 	Foundation 	to provide 	foreign 	language 	courses 	that 	were
contracted 	for on June 22, 	1983 and August 22, 	1983, 	until
bargaining has 	been 	completed, 	either by agreement 	or 	until
impasse 	procedures 	have 	been 	exhausted.
4. 	If, 	within one year of 	the date 	this 	Decision
becomes 	final, 	the 	District 	again offers 	fee-based 	language
classes, 	offer 	reinstatement 	to 	those employees who were
placed 	on 	layoff 	status 	by 	action 	of 	the 	District board 	of
trustees on August 22, 	1983.
Dated: 	SAN DIEGO 	COMMUNITY COLLEGE
DISTRICT
By:
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT
LEAST 	THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF
POSTING AND MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR
COVERED 	BY ANY MATERIAL. 2

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN DIEGO ADULT EDUCATORS. 	LOCAL 	4 2 8 9 .
AMERICAN 	FEDERATION 	OF 	TEACHERS/
CALIFORNIA FEDERATION 	OF 	TEACHERS.
A F L - C I O .
Charging 	P a r t y .
V.
SAN DIEGO COMMUNITY 	COLLEGE 	DISTRICT
Respondent.
)
)
)
)
) 	Unfair 	P r a c t i c e
Case 	No. 	LA-CE-1905	)
)
) 	PROPOSED DECISION
) 	(4/28/86)
)
)
)
)
Appearances: 	James M. 	Gattey. 	Attorney for 	San Diego Adult
Educators Local 	4289. 	American Federation of
Teachers/California Federation of Teachers, 	AFL-CIO; 	Liebert.
Cassidy 	& Frierson 	by Larry J. 	Frierson for 	the 	San Diego
Community College 	District.
Before: 	W. 	Jean Thomas. 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On December 	21. 	1983. 	the San Diego Adult Educators.
Local 	4289, 	American Federation of 	Teachers/California
Federation of 	Teachers. 	AFL-CIO 	(hereafter 	Charging Party or
SDAE) 	filed 	an unfair 	practice 	charge 	against 	the 	San Diego
Community College District 	(hereafter Respondent 	or District).
The charge, 	as amended April 	30. 	1984, 	alleges that the
District violated sections 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations 	Act 	(hereafter 	EERA 	or 	Act)
l
1
1The 	Educational Employment Relations Act 	is 	codified 	at
Government Code section 3540 et seq. 	Unless otherwise
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
e

by 	discontinuing 	certain 	fee-based, 	non-credit 	foreign 	language
courses 	taught 	by 	certificated 	unit 	employees 	represented 	by
the SDAE and. 	thereafter, 	contracting with the San Diego
Community College District Foundation, 	Inc., 	(hereafter
Foundation) 	for 	the provision of 	some 	of 	the same 	courses
formerly 	offered 	by 	the District's 	continuing 	education 	and
adult 	program. 	It 	is 	further 	alleged 	that, 	prior 	to 	taking
this 	action, 	the District 	failed 	to meet 	and 	negotiate with the
SDAE 	as 	exclusive 	representative 	of 	the 	employees 	affected 	by
this 	action and 	that 	the unilateral 	transfer 	of 	courses 	amounts
to 	unlawful 	contracting 	out 	of 	services 	previously performed 	by
bargaining unit 	employees.
On May 30. 	1984. 	the Office of 	the General Counsel 	of 	the
Public 	Employment Relations 	Board 	(hereafter 	PERB 	or 	Board)
indicated, 	all 	statutory references 	herein are 	to 	the
Government Code.
Section 3543.5 states, 	in pertinent part, 	as follows;
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.
22

issued 	a 	Complaint 	based 	on 	the 	amended 	charge. 	Respondent
filed an Answer 	to 	the Complaint on June 	25. 	1984. 	raising
several 	affirmative defenses, 	including allegations 	that 	the
Charge was 	time-barred 	by 	the 	statute 	of 	limitations 	provision
contained 	in section 3541.5(a)(I)2
An 	informal 	settlement 	conference 	conducted 	on
June 29. 	1984, 	failed to resolve the dispute.
Subsequent 	to 	the 	informal 	conference. 	Respondent 	filed 	a
Motion to Dismiss 	Complaint 	(Summary Judgment) 	on 	the 	grounds
that 	the 	charge was 	time-barred 	and 	that 	it 	failed 	to 	set 	forth
facts constituting a violation of 	sections 	3543.5(a). 	(b)
or (c).
The Motion to Dismiss was 	orally argued 	by 	the 	parties 	at 	a
pre-hearing conference held on August 	31, 	1984. 	On this 	same
date 	the 	formal 	hearing 	scheduled 	for 	September 	13
and 14. 	1984, 	was continued, 	pending a 	ruling on the timeliness
issue 	as 	a 	threshold 	jurisdictional 	question. 	A 	ruling 	on 	the
Motion to Dismiss was 	issued October 	11. 	1984, 	rejecting the
argument 	that 	the 	charge was 	time-barred 	by the 	statute 	of
2section 3541.5(a)(l) 	states 	as 	follows:
(a) 	Any employee, 	employee organization or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice charge, 	except that the
board shall not 	. 	. 	. 	: 	(1) 	issue a
complaint 	in respect 	of 	any charge 	based
upon 	an 	alleged 	unfair 	practice 	occurring
more 	than 	six months 	prior 	to 	the 	filing 	of
the 	charge; 	. . . .
w3

limitations. 	In the 	ruling 	it was 	concluded 	that, 	although the
charge was 	technically deficient 	at 	the 	time 	that 	it was 	filed
with the PERB on December 	21, 	1983, 	that deficiency was
subsequently 	cured 	by 	the 	Charging Party with no 	demonstrable
prejudice 	or 	harm to 	the 	rights 	of 	the Respondent as 	a 	result
thereof.
A hearing was 	conducted 	in 	this 	matter 	on January 	28 	and
29, 	1985. 	Post-hearing briefs were 	filed and 	the 	case was
submitted on May 	1, 	1985.
FINDINGS OF FACT
A. 	Background
The 	parties 	stipulated 	and 	it 	is 	found 	that 	the Charging
Party 	is 	an 	employee 	organization 	and 	the 	exclusive
representative 	of 	an 	appropriate 	unit 	of 	certificated 	employees
of 	the District and 	that 	the Respondent 	is 	a public 	school
employer 	as 	those 	terms 	are defined 	by the EERA. 	The 	SDAE was
granted voluntary 	recognition 	in 	1976 	as 	the 	exclusive
representative 	of 	a 	certificated 	bargaining unit 	of 	adult
education instructors which includes, 	among others, 	"all
full-time 	and 	part-time 	certificated 	adult 	faculty." 	The 	unit
consists 	of 	approximately 	1000 employees. 	The District 	is
governed 	by a 	five-member 	board 	of 	trustees 	and 	its 	chancellor,
who 	at 	the 	time 	of 	the 	hearing was 	Garland Peed.
Geographically, 	the District 	consists 	of 	three main college
campuses -- San Diego City, Mesa College and Miramar College --which combined have four sep
4

At 	the 	time 	of 	the events 	giving 	rise 	to 	the 	instant
charge, 	the parties were 	signatories 	to 	a 	collective 	bargaining
agreement 	(hereafter CBA) which, 	by its terms, 	was 	in effect
from July 1. 	1981 to June 30. 	1984. 	Article XXI 	of 	the CBA
provided 	for 	reopening of 	renegotiations 	over 	salaries 	and 	any
of 	the 	salary provisions 	and 	any 	two 	other 	articles 	selected 	by
each party prior 	to 	the 	end 	of 	the 	contract years 	1982 	and 	1983.
B. 	Discontinuance 	of 	Certain Adult Education Classes
On March 9. 	1983. 	the District board of 	trustees adopted a
resolution to discontinue 	approximately 	14 	classes 	taught 	on a
non-credit, 	fee basis 	in the 	adult 	and 	continuing education
program, 	including driver 	improvement 	and all 	Spanish, 	French
and German 	language 	classes, 	and 	to decrease the number 	of
employees 	in permanent 	positions 	requiring 	certification
qualifications 	in adult 	education. 	This 	decision was 	made
because 	the District 	board 	determined 	that 	the 	fee 	income 	from
these 	courses was 	not 	sufficient 	to 	support 	their 	continuation.
"Fee 	classes" 	are 	supported 	only by the 	student 	fees 	paid
directly to 	the District, 	and not 	by apportionment 	funds 	from
the State or 	elsewhere.
Following 	this 	decision, 	the District 	board 	listened 	to
presentations 	by members 	of 	the 	public who 	presented 	petitions
during the May 4, 	1983, 	board meeting, 	asking that the board
reconsider 	its 	action of March 	9 	cancelling the 	foreign
language 	classes. 	The 	board 	then 	referred 	the matter 	to
Chancellor 	Peed 	and 	requested 	that 	he 	develop 	a 	list 	of
5

alternative 	funding 	sources 	for 	the 	discontinued 	language
classes 	for 	the 	board 	to 	consider 	at 	a 	future meeting.
At 	a 	special 	public 	meeting 	held 	on May 23, 1983, 	the 	board
formally 	adopted 	a 	proposed 	decision 	recommending 	the
termination of 	seven adult education faculty, 	pursuant 	to 	the
board's March 9 	decision. 	The 	board voted 	to 	decrease 	the
number 	of 	employees 	in the 	adult 	education division 	by 	the
equivalent 	of 	4.1 	full-time 	positions. 	The 	positions
eliminated were 	filled 	by 	the 	seven 	instructors 	of 	fee-based
Spanish, 	German and French 	languages 	classes. 	These
instructors were 	all 	"contract" 	or 	tenured 	faculty. 	The 	driver
improvement 	instructor 	was 	not 	terminated.
The 	remaining foreign 	language, 	fee 	classes, 	which were
taught 	by temporary or 	hourly employees, 	were not 	eliminated.
Those 	instructors 	of 	the fine arts, 	fee classes 	(which were
also 	discontinued 	by 	board 	action 	on March 	9) 	were 	reassigned
to 	teach 	non-fee 	or 	credit-level 	classes 	in 	their 	respective
subject areas.
Following 	this 	termination action, 	the 	board 	listened 	to
additional 	public 	presentations 	concerning 	its March 	9
decision. 	It 	then reviewed 	a 	report 	presenting 	four
alternative 	funding 	sources 	for 	the 	discontinued 	foreign
language 	classes. 	Part 	of 	the 	background material 	included 	for
this 	docket 	(agenda) 	item was a 	summary of 	the District's 	cost
of 	offering 	the 	discontinued 	courses 	using 	contract
instructors. 	The 	cost 	per 	class was 	$33-$47 per 	hour. 	The
6

income from these 	classes, 	based upon a 	fee 	of 	$1.25 	per
instructional 	hour 	per 	student 	(with 	a 	minimum of 	15 	enrollees
per class), 	was $18.75 per 	hour. 	The summary further 	stated
that 	in order 	for 	the fees 	to 	support 	the 	program, 	either 	the
minimum enrollment would 	have 	to 	be 	increased 	to 	27-38 	students
per 	class 	or 	the 	fees would 	have 	to 	be 	increased 	to 	$2.2O-$3.13
per 	hour 	(based 	on a minimum enrollment 	of 	15 	students). 	The
four 	alternatives 	prepared 	by Chancellor 	Reed were: 	(1)
providing the classes as 	college-level 	(credit) 	courses, 	(2)
requesting 	that 	the 	city department 	of 	parks 	and 	recreations
provide 	the courses under 	its 	operations, 	(3) 	using other
agencies 	such as 	the YMCA or 	the YWCA and 	(4) 	using 	the 	San
Diego Community College District Foundation, 	Inc.
The 	board 	then voted 	for 	alternative 	number 	4 	and 	directed
the 	chancellor 	to 	inform the Foundation 	that 	the District
wanted 	the Foundation 	to 	offer 	certain 	foreign 	language 	classes
which 	the District 	had 	discontinued 	because 	of 	the 	high 	costs
of 	such classes. 	The 	chancellor was 	asked 	to 	prepare
contractual 	language 	to 	that 	effect 	in order 	to 	facilitate 	the
provision of 	such classes 	by the Foundation.
At 	its 	board meeting of June 	22, 	1983, 	the District board
of 	trustees 	reviewed 	and 	approved 	a 	proposed 	agreement 	between
the District and Foundation which stated, 	in relevant part, 	as
follows:
WHEREAS, 	the DISTRICT desires 	to 	enter 	into 	such
an agreement with 	the FOUNDATION for 	the 	provision 	of
77

certain 	continuing 	education 	fee 	classes 	which 	have 	been
discontinued 	by 	the DISTRICT 	due 	to 	the 	limited 	income 	and
high cost of 	such classes;
NOW THEREFORE. 	THE 	PARTIES HERETO MUTUALLY AGREE
as follows:
1. 	DISTRICT
The DISTRICT 	hereby agrees 	to 	provide 	services 	to 	the
FOUNDATION as 	follows:
a. 	Facility usage. 	Classes 	provided 	by the
FOUNDATION 	in 	the 	disciplines 	covered 	by 	this
AGREEMENT may 	be 	offered 	in DISTRICT-leased 	or
owned 	facilities.
b. 	Promotion. 	The DISTRICT will 	include 	the
FOUNDATION 	classes 	in 	the DISTRICT'S 	class
schedules 	and 	fliers 	which are 	disseminated 	to
prospective 	students.
c. 	Supervision. 	DISTRICT employees will 	provide
on-site 	class 	supervision, 	assist 	in teacher
selection and 	determination of 	class 	offerings,
collect 	and 	deposit 	fees 	to 	specified 	accounts 	in
accordance with FOUNDATION procedures, 	and
provide 	other 	accounting 	and 	payroll 	supportive
services 	so 	that 	funds 	may 	be 	accurately
accounted 	for 	and 	instructors 	employed 	and 	paid.
d. 	Security Services. 	The DISTRICT will 	provide 	as
part 	of 	its 	normal 	security operations 	the 	same
level 	of 	security provided 	to 	other 	classes 	and
services 	on the 	site as 	if 	the 	the class were
operated 	by 	the DISTRICT.
e. 	Insurance. 	The DISTRICT will 	provide appropriate
insurance coverage to 	insure the sites, 	security
operations. DISTRICT personnel, 	etc. 	The
facilities 	are 	to 	be maintained 	in a 	safe 	and
usable 	condition.
2. 	FOUNDATION
The FOUNDATION 	shall 	provide 	the 	following 	services:
a. 	Employees. 	The FOUNDATION 	shall 	provide
appropriate 	instructional 	staff 	for 	each 	class.
8

b. 	Accounting and 	payroll 	services. 	The FOUNDATION
shall 	pay 	each 	instructor 	in accordance with 	the
salary schedules 	of 	the FOUNDATION. 	All 	payroll
services 	shall 	by provided 	by 	the FOUNDATION,
including the issuance of 	checks, 	the filing of
required State and federal 	reports, 	taxes, 	etc.
c. 	Scheduling. 	The FOUNDATION shall 	provide 	the
DISTRICT with the 	classes 	to 	be 	scheduled 	in a
timely manner 	so 	that 	such 	classes 	can be
publicized 	to 	meet DISTRICT 	publication deadlines
on class 	schedules 	and 	fliers. 	Information to 	be
included will be 	the fee, 	date, 	time and 	location
of 	the class, 	and 	the name of 	the 	instructor.
d. 	Insurance. 	The FOUNDATION will 	provide 	insurance
for 	all 	appropriate 	liability, 	worker's
compensation, 	and 	other 	required 	insurances 	for
FOUNDATION employees 	and 	activities.
3. 	COMPENSATION
The FOUNDATION 	shall 	pay 	the DISTRICT $7.00 	(Seven
Dollars) 	per 	class 	hour 	or 	fraction thereof 	of 	actual
class meetings.
4. 	INDEMNIFICATION
FOUNDATION 	shall 	save 	and 	hold 	harmless 	DISTRICT 	and
its 	officers, 	agents 	and 	employees 	from any 	liability,
claims 	or 	causes 	of 	action resulting 	from 	its
activities or 	those of 	its officers, 	agents or
employees. 	DISTRICT shall 	save 	and 	hold harmless
FOUNDATION and 	its 	officers, 	agents 	and 	employees 	from
any 	liability, 	claims 	or 	causes 	of 	action resulting
from its 	activities 	or 	those of 	its officers, 	agents,
or employees.
5. 	TERM OF AGREEMENT
The 	term of 	this 	AGREEMENT shall 	be 	from
June 22, 	1983, 	until rescinded with 30 days' 	written
notice 	by either 	party. 	Termination of 	the AGREEMENT
will 	not 	affect 	the 	duties 	and 	obligations 	of 	either
party as 	to 	instruction 	that 	has 	already commenced 	as
of 	the effective date 	of 	termination, 	and as 	to 	that
instruction, 	the AGREEMENT remains 	in effect until
completion of 	the course.
99

This 	agreement 	contained 	a 	signature 	line 	for 	Chancellor 	Peed
as 	the District 	representative.
At the District 	board meeting of August 	3, 	1983, 	a 	number
of 	students 	and 	concerned 	citizens, 	including Fanny G. 	Miller,
one 	of 	the 	Spanish 	instructors who was 	placed 	on 	layoff 	status
on May 23, 	1983, 	addressed 	the board 	concerning 	the
cancellation of 	the fee 	classes 	in Spanish. 	Ms. 	Miller
proposed, 	on behalf 	of 	the 	other 	adult 	faculty whose positions
were 	terminated, 	that 	the District 	reconsider 	and 	reverse 	its
decision of March 9 	to 	eliminate 	the 	foreign 	language 	classes.
During 	her 	presentation. 	Ms. 	Miller 	raised 	several questions
about 	the validity of 	the Foundation as 	a 	corporation. 	The
board 	referred 	these 	questions 	to 	the 	chancellor 	for 	a 	response
and 	further 	discussion at 	a 	future 	board 	meeting.
On August 	22, 	1983. 	the 	board 	held 	another 	special 	meeting,
at which 	time 	the 	questions 	raised 	at 	the August 	3 	meeting were
publicly 	addressed. 	Following 	this 	discussion 	and 	some
deliberation, 	the 	board voted 	to 	discontinue 	all 	remaining
non-credit, 	foreign 	language 	classes 	offered 	through the
continuing 	education program 	and 	to 	request 	that 	the Foundation
include 	these 	classes 	in 	the 	agreement 	that was 	approved 	by 	the
District 	on June 	22, 	1983. 	No 	explanation was 	offered 	in the
record 	for 	this 	latter 	action by 	the 	board.
The 	parties 	stipulated 	that 	no 	contract 	between 	the
District 	and 	the Foundation for 	the 	provision of 	the
10

discontinued 	foreign 	language 	classes, 	including 	the
June 22, 	1983, 	contract, 	was ever 	presented to the District by
the Foundation.
C. 	The 	San Diego 	Community College District Foundation. 	Inc.
The Foundation was 	established 	sometime 	around 	1973 	or 	1974
as 	a 	general 	nonprofit 	corporation under 	the California 	General
Nonprofit 	Corporation Law. 	Chancellor 	Peed was 	involved with
the development 	of 	this 	organization prior 	to 	the 	beginning 	of
his 	employment with the District 	in 	1976. 	The articles 	of
incorporation and 	the 	bylaws 	of 	the Foundation were 	amended 	in
June 	1983 	to 	change 	the 	status 	of 	the 	organization to a
nonprofit, 	public 	benefit 	corporation pursuant 	to 	section
5310(b)(l) 	of 	the California Nonprofit Public Benefit
Corporation Law. 	The 	stated 	purpose 	and 	objective 	of 	the
Foundation 	is 	to 	assist 	and 	promote 	the 	educational 	activities
of 	the District. 	The Foundation, 	which has no members, 	is
governed 	by a 	five-member 	board 	of 	directors. 	According 	to 	the
June 	1983 	amendments 	to 	the 	bylaws, 	each 	individual 	member 	of
the Foundation board 	is 	to 	be 	designated 	by a 	member 	of 	the
District 	board 	of 	trustees. 	Prior 	to 	the June 	1983 	amendment,
it 	is unknown how the 	board members were 	selected. 	The
Foundation 	board 	formerly met 	on a 	monthly 	basis. 	The 	amended
bylaws 	provide 	for 	quarterly meetings.
Chancellor 	Peed 	has 	held 	various 	administrative 	and
elective 	positions with 	the Foundation 	since 	its 	inception.
Until mid-June 	1983 	he 	served as 	president 	of 	the Foundation.
11

The 	administrative 	offices 	of 	the Foundation are 	located 	in
the 	same 	building 	and 	on 	the 	same 	floor 	as 	the District's
administrative 	offices. 	The Foundation's 	chief 	administrator
is 	an executive director, 	who at 	the time of 	the hearing was
Hollie Elliott. 	The Foundation and 	the District 	have 	a
contractual 	agreement whereby 	the Foundation 	rents 	office 	space
from the District 	and 	the District 	pays 	the 	lessor. 	The
Foundation 	owns 	some 	office 	equipment 	and 	pays 	the District 	for
the use 	of 	some 	of 	its 	equipment. 	It 	also pays 	the District
for 	certain other 	services, 	including the 	rental 	of 	various
District 	facilities 	for 	its 	educational 	activities.
As 	of 	January 	1985. 	the Foundation did 	not 	have 	a 	separate
telephone 	listing for 	its administrative offices. 	Instead, 	it
shared 	the 	telephone 	number 	used 	by Chancellor 	Peed's 	office.
The Foundation has 	approximately 20-30 	employees 	who 	are
not 	involved 	in 	instructional activities. 	It has 	its 	own
personnel 	policies, 	some 	of which are 	patterned 	after 	the
District 	personnel 	policies 	and were 	adopted 	following 	the
June 	1983 	amendments 	to 	the 	bylaws. 	The Foundation funds 	are
managed 	by a 	bank which administers 	the 	payroll 	for 	the
Foundation's 	employees. 	The Foundation has 	its 	own checking
and 	investment 	accounts.
The Foundation first 	began offering 	educational 	programs 	in
the early 1980's. 	In 1982, 	for example, 	the District and the
Foundation entered 	into 	a 	contract 	for 	the Foundation 	to
12

perform special 	coordination 	services 	for 	the District's
contract 	instructor 	program with 	the United 	States Navy. 	The
District 	and 	the Foundation also 	entered 	into 	a 	five-year
contract 	in 	1982 	for 	the District 	to 	provide 	instruction and
grant 	certificates 	and 	other 	recognition 	for 	the 	Foundation 	and
its 	students 	in various 	subject areas, 	as 	provided 	for 	in the
California Education Code 	section 	18300 	et 	seq. 	The Foundation
also 	provided 	a 	management 	training 	program 	for 	the 	San Diego
Zoo management personnel, 	offered programs 	in such areas 	as
nursing, 	real estate, 	vocational rehabilitation, 	mobility
training 	for 	the 	mentally 	retarded, 	a 	program for 	United 	States
Marine Corps personnel 	in Yuma, 	Arizona, 	and a high school
diploma 	program 	for 	United 	States 	Navy 	personnel 	stationed
throughout 	the Pacific 	Ocean area.
The 	salaries 	of 	the 	instructors 	and/or 	consultants 	for
these 	courses 	were 	either 	negotiated 	on an 	individual 	basis 	or
based 	on a 	schedule 	established 	by 	the Foundation.
Following the District's decision on May 23, 	1983, 	to
contract with 	the Foundation 	for 	the 	discontinued 	foreign
language 	classes. 	Chancellor 	Peed met with 	the District's 	site
deans 	(administrators) 	on June 2, 	1983. 	concerning the planned
operation of 	the 	continuing 	education classes 	that would 	be
offered 	by the Foundation during 	the 	1983 	summer 	session. 	That
meeting 	focused 	on 	the 	involvement 	of 	the 	deans 	in providing
"on-site 	supervision" 	for 	the Foundation. 	Specifically, 	the
13

site 	deans were 	to 	be 	responsible 	for 	assessing 	the
qualifications 	of 	applicants 	and 	selecting 	the 	regular 	and
substitute 	teachers 	for 	the 	foreign 	language 	classes. 	They
were 	also 	to 	review 	curriculum content 	of 	the 	class 	offerings
to 	insure 	that 	a 	certain 	level 	of 	quality 	in the 	instruction
was maintained. 	The deans were 	also 	to 	be 	responsible 	for
arranging substitute 	teacher 	coverage 	in event 	that 	a 	regular
teacher was 	unable 	to perform. 	No 	evidence was 	presented
concerning whether 	the 	site 	deans 	had 	responsibility 	for
evaluating, 	in any way. 	the performance of 	the 	teachers 	hired
to 	teach the Foundation's 	foreign 	language 	classes. 	The 	site
deans were 	also 	responsible 	for 	collecting 	the 	student 	fees 	for
submission 	to 	the Foundation. 	Chancellor 	Peed 	testified 	that
responsibilities of 	the site deans, 	as outlined above, 	were
what 	he viewed 	as 	the meaning of 	the 	"on-site 	supervision"
services 	to 	be 	provided 	for 	the Foundation by the District.
Approximately 	one week 	following 	this 	meeting, 	the District
continuing 	education 	office 	notified 	inquiring members 	of 	the
public 	that 	the 	foreign 	language 	classes which had 	been
discontinued 	by 	the District would 	be 	offered 	by 	the Foundation
during the 	summer 	of 	1983.
From June 	20 	to July 29, 	1983, 	the Foundation offered 	six
Spanish 	and French 	classes 	at 	various 	continuing 	education
centers. 	Two 	former 	District 	adult 	education foreign 	language
14

instructors. 	Ms. 	Miller and Carlos Herrera, 	were among those
individuals 	hired 	by 	the Foundation 	to 	teach the 	summer 	classes
referenced 	above.
In the 	1983 	fall 	session, 	the Foundation offered 	seven
foreign languages 	courses, 	including Spanish, 	French and
German, 	at 	six of 	the District's 	continuing education centers.
Brigette Halvorson, 	a 	former 	contract 	instructor who 	taught
German, 	was 	hired 	by the Foundation to 	teach a 	course 	in the
fall 	1983 	session. 	It 	is 	not 	known 	if 	any hourly 	instructors
employed 	by 	the District 	prior 	to August 	1983 	were 	subsequently
hired 	by 	the Foundation 	to 	teach 	classes 	in 	the 	1983-84 	school
year.
In early 	1984 	the District 	received 	$10,570 	from the
Foundation for 	the services 	that 	it provided, 	i.e., 	use of
facilities, 	publication of 	the 	classes 	in the District's 	class
schedules 	and 	administrative 	support 	(for 	the 	fall 	session
classes which were 	taught 	from September 	to November 	1983).
D. 	1983 	Negotiations 	and Meetings 	Between SDAE 	and 	the District
In accord with 	the 	reopener 	provisions 	of 	Article 	XXI 	of
the CBA, 	the parties 	commenced 	negotiations 	for 	the 	1983-84
school 	year 	in early 	1983. 	The 	SDAE 	submitted 	its 	proposals 	to
the District 	sometime 	in 	late 	January 	or 	early February 	1983.
SDAE President John Sullivan, 	III, 	was also 	the chairperson of
the 	negotiating team. 	The 	SDAE 	team consisted 	of 	six members
of 	the 	bargaining unit. 	Sullivan was 	also 	a member 	of 	the
15

District 	executive 	council, 	a 	body which regularly meets with
the 	chancellor 	prior 	to 	a 	scheduled District 	board 	meeting 	to
review the 	board's 	docket 	items which will 	be 	considered 	at 	the
forthcoming 	meeting.
The 	chief 	spokesman 	for 	the District 	negotiating 	team was
Cecil Hannan, 	the director 	of 	administrative 	services 	and 	the
person 	responsible 	for 	the District's 	employer-employee
relations. 	The 	parties 	met 	for 	negotiations 	an average 	of 	two
times 	per 	month 	between March and November 	1983.
These 	negotiations 	culminated 	in an agreement 	that was
finally ratified 	by the 	parties 	in December 	1983. 	with terms
retroactive 	to July 	1. 	1983. 	At 	no 	time during 	this 	period 	of
negotiations 	did 	either 	party make 	a 	specific 	proposal 	to 	the
other 	to 	negotiate 	over 	any matters 	related 	to 	the District's
decisions 	to 	eliminate 	the 	foreign 	language 	courses, 	to 	lay off
instructors 	affected 	by these decisions, 	and 	to 	subsequently
contract with 	the Foundation to 	provide 	the 	discontinued
courses.
In mid-March 	1983 	Sullivan was 	contacted 	by 	17 	members 	of
the 	bargaining unit 	concerning 	the 	layoff 	notices 	that 	they 	had
received 	from the District 	in connection with 	the District's
March 	1983 	decision 	to 	discontinue 	certain 	fee-based 	adult
education classes. 	In April 	and May 	1983 	the 	SDAE 	represented
some 	of 	these unit members 	in 	layoff 	hearings.
16

Sullivan was 	present 	as 	an SDAE 	representative 	at 	the
May 23. 	1983. 	District 	board meeting when the board 	of 	trustees
took final 	action to 	approve unit member 	layoffs, 	to 	reduce
unit 	positions 	and 	to 	contract with 	the Foundation for 	the
provision of 	its 	discontinued 	foreign 	language 	classes. 	No
evidence was 	presented 	that 	Sullivan or 	any 	other 	SDAE
representative 	registered 	a 	protest 	or 	objection to 	the 	board
at 	that 	meeting 	about 	the 	contracting-out 	decision.
Sometime 	in 	late June 	1983 	Sullivan went 	to 	see Hannan
about 	the District's May 	1983 	layoff 	action. 	Sullivan and
Hannan met 	briefly 	and 	then 	agreed 	to 	meet 	again and 	discuss
the matter 	more 	fully with Chancellor 	Peed 	and Raoul Martinez.
SDAE's 	grievance 	chairperson.
Sullivan. 	Hannan and Peed met on July 20, 	1983, 	without
Martinez 	who was 	unable 	to 	attend 	because 	of 	another
commitment. 	The 	discussion during 	this 	meeting 	centered 	on 	the
feasibility 	of 	the District's 	reinstating 	the 	discontinued
classes 	on a different 	financial 	basis 	than before 	and
reinstating 	the 	teachers 	who were 	on 	layoff. 	No 	specific
agreement 	or 	commitment was 	reached 	at 	the 	July 	20 	meeting
except for 	some 	"understanding." 	according to Sullivan, 	that
there would 	probably be 	another 	meeting 	on 	this 	subject.
However, 	no definite date 	or 	time was 	set. 	No mention was made
during 	this 	meeting 	that 	the District was 	considering 	the
possibility 	of 	eliminating 	the 	remaining 	fee-based 	foreign
17

language 	classes 	and 	asking 	the Foundation 	to 	also 	offer 	these
classes.
Sullivan 	attended 	the District 	executive 	council 	meeting
that was held prior 	to 	the board's 	special August 	22, 	1983.
meeting. 	However, 	there was 	no discussion at 	this meeting that
the 	board would 	be 	considering a 	proposal 	to discontinue 	the
remaining 	fee-based 	foreign 	language 	classes 	in 	the 	continuing
education 	program.
Following 	the August 	22 	board 	action, 	SDAE did 	not meet,
negotiate 	or 	discuss with the District 	the Board's 	decision of
August 	22 	or 	the 	effects 	of 	this 	decision. 	Sullivan 	testified
that 	SDAE decided 	not 	to 	pursue 	the matter 	for 	two 	reasons.
First, 	SDAE 	leadership felt 	that 	after 	the August 	22 	meeting
there was 	a 	change 	in the 	attitudes 	and 	feelings 	of 	the 	parties
regarding 	informal 	resolution of 	the 	issue, 	i.e., 	both sides
seemed 	less 	receptive. 	Thereafter, 	their 	differences 	seemed 	to
focus more 	on personalities 	than 	issues. 	Secondly, 	the SDAE
felt 	that 	there was 	inadequate 	time 	between 	the August 	22 	board
action and 	the 	commencement 	of 	the 	fall 	1983 	semester 	to 	effect
any change 	of 	the 	board's 	actions.
Between March 	and November 	1983, 	SDAE 	filed 	no 	complaints
or 	grievances 	concerning 	either 	the June 	22 	or 	the August 	22
board 	decisions 	to 	contract with 	the 	Foundation 	for 	teaching
services.
18

E. 	Relevant 	Contract Language
Article 	II, 	sections 	2.4 and 2.11. 	and Article 	III, 	section
3.2 	of 	the 	CBA obligated 	the District 	to 	provide 	SDAE with 	two
copies 	of 	all 	board 	docket materials, 	including all 	action
items 	that 	the 	board would 	be 	considering at 	its 	next 	meeting.
Sullivan was 	one 	of 	the 	SDAE 	representatives 	designated 	to
receive 	board 	docket 	materials 	and 	regularly did 	so.
Article XVIII 	(Reduction 	in Force) 	of 	the 	CBA contains
provisions 	related 	to 	the 	layoffs 	of 	unit members 	and 	their
rights 	to 	reduction 	leave 	and 	reinstatement.
There 	is 	no 	language 	in the 	agreement 	pertaining 	to unit
work or 	the 	transfer 	or 	contracting out 	of work 	or 	services
performed 	by unit 	employees.
ISSUES
1. 	Is 	the 	charge 	barred 	by the 	six-months 	statute 	of
limitations 	established 	by 	subsection 	3541.5(a)(1)?
2. 	Should 	the District 	and 	the Foundation 	be 	considered 	a
single 	employer?
3. 	If 	they do 	not 	have 	single 	employer 	status, 	is 	the
Foundation a 	public 	school 	employer 	under 	EERA?
4. 	Did 	the District, 	in contracting with the Foundation
for 	the 	provision of 	its 	discontinued 	classes, 	engage 	in either
a 	unilateral 	transfer 	or 	contracting 	out 	of 	bargaining unit
work?
5. 	Did 	SDAE waive 	the 	right 	to 	negotiate 	over 	the
District's 	decision 	to 	contract with 	the Foundation?
19

CONCLUSIONS 	OF 	LAW
A. 	The 	Charge 	is 	not Time-Barred 	by the 	Statute 	of 	Limitations
Provision 	of 	Section 	3541.5(a)(l)
During 	the 	hearing and 	in 	its 	post-hearing 	briefs, 	the
Respondent 	made 	a 	motion 	for 	reconsideration of 	the 	order
denying Respondent's 	motion 	to 	dismiss 	complaint 	on 	the 	grounds
that 	this 	charge 	is 	time-barred 	by 	the 	statute 	of 	limitations
provision of 	section 3541.5(a)(1).3
In 	its 	original 	motion Respondent 	argued 	that 	in accord
with PERB 	Regulations 	sections 	32140 	and 	32615,4 the 	filing
of 	an unfair 	practice 	charge 	is 	Procedurally defective until
there 	has 	been effective 	service 	on all 	opposing 	parties 	has
been obtained. 	In 	this 	case 	the 	Charging Party 	filed 	the
original 	unfair 	practice 	charge with 	the 	PERB 	on
December 	21, 	1983, 	one day before 	the 	six-months 	statute of
limitations 	expired. 	However, 	it did not 	serve a 	copy of 	the
charge 	on the Respondent until January 18. 	1984, 	which was
28 	days 	after 	the 	filing date.
3Subsection 3541.5(a)(l) 	states 	as 	follows:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	issue a complaint 	in respect of any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring more 	than 	six months 	prior 	to 	the
filing 	of 	the 	charge; 	. . . .
4PERB Rules 	and 	Regulations 	are 	codified 	in 	the 	Cal
Admin. 	Code, 	title 8, 	part III. 	section 31001, 	et seq.
W
20

Hence, 	Respondent 	argued, 	the charge was 	not properly 	"filed"
within 	the 	statutory 	time 	period 	and was 	thus 	time-barred 	by
the requirement of 	subsection 3541.5(a)(1).
In the 	order 	issued 	by the undersigned, 	it was 	concluded
that 	although 	the 	charge was 	technically deficient 	at 	the 	time
it was 	filed with the PERB, 	the deficiency was 	subsequently
cured 	by 	the 	Charging Party with 	no 	demonstrable 	prejudice 	or
harm to 	the 	rights 	of 	the Respondent 	as 	a 	result
thereof. 	This 	ruling was 	made 	because 	under 	the PERB 	procedure
utilized 	for 	processing 	an unfair 	practice 	charge. 	Respondent
had 	both notice 	of 	the 	charge 	and 	an opportunity 	to 	respond 	to
the 	allegations 	prior 	to 	any 	significant 	action 	being 	taken 	by
the PERB, 	including the decision to 	issue 	the 	complaint.
Since, 	in this case. 	Respondent suffered no denial 	of 	its due
process 	rights 	by the 	initial 	delay 	in service, 	it was 	deemed
reasonable 	and 	permissible 	to 	conclude 	that 	the 	processing 	of
this 	charge was 	not 	barred 	by 	the 	statute 	of 	limitations
provision 	of 	EERA nor 	by PERB's 	administrative 	interpretation
of 	its own regulations.
In 	its 	motion for 	reconsideration. 	Respondent 	argues 	that
prejudice 	need 	not 	be 	shown 	in determining 	the 	application 	of
the 	statute of 	limitations. 	In support 	of 	this 	contention.
Respondent 	cites 	recent 	private 	sector 	case 	law applying 	the
statute 	of 	limitations 	provision of 	section 10 	(b) 	of 	the
National 	Labor Relations Act 	(hereafter NLRA) 	where 	the 	court
21

of 	appeal 	held 	that 	a 	"hybrid" 	action 	involving claims 	of 	a
breach of 	contract 	and duty of 	fair 	representation, 	though
filed within the 	six-month 	statute 	of 	limitations, 	was 	not
served 	on the parties within that 	time. 	In a 	"choice 	of 	law"
decision, 	the court determined that 	section 10 	(b) 	of 	the NLRA
governed 	the 	action and 	required 	in 	"intent, 	spirit 	and 	plain
language" 	that 	the 	complaint 	be 	both 	filed 	and 	served within
the six-month limitations. 	Simon v. 	Kroger 	(11th Cir. 	1984)
743 	F.2d 	1545 	[117 	LRRM 2700]
This 	case 	is 	distinguishable 	from the 	Simon case. 	Simon
involved 	a 	single 	claim presenting 	both a 	federal 	and 	a 	state
cause 	of 	action which were 	each 	governed 	by 	different 	statutes
of 	limitations. 	In deciding on the applicable 	statute 	of
limitations 	for 	the 	claim, 	the 	court 	relied 	on the 	"Del
Costello" 	rule 	adopted 	by 	the United 	States 	Supreme Court 	in a
case 	factually 	similar 	to 	Simon. 	(See Del 	Costello v.
Teamsters 	(1983) 	462 U.S. 	151 	[113 	LRRM 2737].) 	Del Costello
and 	Simon are 	clearly applicable 	in 	the 	case, 	where 	a 	"hybrid"
claim presents 	a 	question with respect 	to 	the 	appropriate
statute 	of 	limitations 	to 	be applied. 	However, 	the case does
not 	present 	a 	"hybrid" 	claim. 	This 	charge 	arises 	under 	a 	State
statute 	-- 	the EERA. 	The 	applicable 	statute of 	limitations
governing 	this 	charge 	is 	provided 	by 	the EERA and 	the 	relevant
interpretations 	of 	this 	statute 	by PERB.
For 	the 	same 	reasons 	that 	the 	original 	motion 	to 	dismiss
was 	denied, 	the motion for 	reconsideration of 	that 	order 	is
22

also 	denied. 	The 	instant 	charge was 	not 	time-barred 	by 	the
six-months 	statute 	of 	limitations 	of 	EERA. 	Respondent's
renewal 	of 	its 	motion to 	dismiss 	on this 	ground 	is 	denied.
B. 	The Foundation 	Is Not 	an 	"Alter Ego" 	of 	the District; 	the
District 	and 	the Foundation Are Not 	a 	Single Employer; 	the
Foundation 	is Not 	an Employer 	Under 	EERA
SDAE argues 	that 	the 	operations 	of 	the District 	and 	the
Foundation are 	so 	closely 	interrelated 	as 	to warrant 	a 	finding
that 	they 	constitute 	a 	single 	employer 	for 	collective
negotiations 	purposes. 	SDAE says 	that the Foundation is, 	in
effect, 	the 	"alter ego" 	of 	the District. 	Thus, 	the agreement
between 	the 	District 	and 	the 	Foundation whereby 	the 	Foundation
would 	teach 	classes 	formerly 	taught 	by District 	employees
should 	be viewed 	as 	a unilateral 	transfer 	of 	unit work 	to
non-unit employees, 	without 	prior 	notice 	to 	SDAE 	or 	an
opportunity for 	SDAE 	to 	meet 	and 	negotiate 	over 	the 	propriety
of 	this action.
The District maintains 	that 	the Foundation 	is 	a 	separate
entity 	that 	is 	not 	a 	public 	school 	employer 	within 	the 	meaning
of EERA subsection 	3540.l(k).5	5 The District 	further 	argues
that 	the Foundation 	is 	not within PERB's 	jurisdiction since 	it
5subsection 3540.l(k) 	states 	that,
"Public 	school 	employer" 	or 	"employer" 	means
the governing board of 	a 	school 	district, 	a
county board of 	education, 	or 	a 	county
superintendent 	of 	schools.
23

is 	neither 	an auxiliary organization 	created 	by 	the District6
nor 	is 	it 	subject 	to 	statutory control 	or 	regulation 	by 	the
District. 	The Respondent 	contends 	that 	the 	only obligations
between 	the District 	and 	the Foundation arise 	from the 	terms 	of
the 	contract 	between 	them 	covering 	the 	disputed 	foreign
language 	classes.
Before 	a 	conclusion can 	be 	made 	about 	the 	legal 	effect 	of
the 	contract 	that 	the District 	and 	the Foundation made 	in June
and August 	1983, 	it 	is 	important 	to examine 	the nature of 	the
relationship 	that 	exists 	between 	these 	two 	entities.
This 	opportunity 	is 	taken 	to 	distinguish between 	the
concepts 	of 	"single 	employer" 	and 	"alter 	ego" 	status 	because 	it
is 	evident 	from the 	Charging Party's 	arguments 	during 	the
hearing 	and 	in 	its 	post-hearing 	brief 	that 	the 	two 	terms 	have
been used 	interchangeably. 	It 	is 	unclear 	whether 	Charging
Party views 	the 	concepts 	as 	alternative 	theories 	of 	attack or
actually considers 	them to 	be 	synonymous. 	In any event,
regardless 	of which doctrine 	is 	applied 	to 	the 	facts 	of 	this
case, 	it 	cannot 	be 	concluded 	that 	the District 	and 	the
Foundation are 	one 	employer.
6California Education Code, 	section 72670 et 	seq.
authorizes 	the 	governing 	board 	of 	a 	community 	college 	district
to 	establish auxiliary organizations 	for 	the 	purpose 	of
providing 	supportive 	services 	and 	specialized 	programs 	for 	the
general 	benefit of 	its 	college 	or 	colleges. 	The District 	has
auxiliary organizations, 	for 	example, 	which operate 	the food
services 	and 	the 	student 	book 	stores.
24

1. 	Alter Ego Argument
SDAE makes 	its 	"alter 	ego" 	theory argument without 	citing
any 	statutory or 	case 	law 	in 	support 	thereof.
There 	is 	no PERB precedent 	regarding this 	doctrine. 	As 	is
true with many 	labor 	law concepts, 	the 	"alter 	ego" 	theory has
been developed 	primarily 	in the 	private 	sector. 	The 	doctrine
was 	developed 	by 	the National 	Labor 	Relations 	Board 	(hereafter
NLRB) 	to 	prevent 	employers 	from evading 	obligations 	under 	the
NLRA merely 	by 	changing 	or 	altering 	their 	corporate 	form.
Alter 	ego 	is applied, 	when appropriate, 	to 	two nominally
separate 	business 	entities 	as 	if 	they were 	a 	single 	continuous
employer. 	(Alkire v. 	NLRB 	(4th Cir. 	1983) 	716 F.2d 	1014 	[114
LRRM 2180]) 	To 	determine whether 	application of 	the 	doctrine
is appropriate, 	the circumstances 	surrounding a 	change 	in
corporate 	form must 	be 	examined 	to 	be 	determined whether 	the
change 	resulted 	in 	a 	"bona 	fide 	discontinuance 	and 	a 	true
change 	of 	ownership or was 	merely a 	"disguised 	continuance 	of
the 	old 	employer." 	See NLRB v. 	All 	Coast Transfer. 	Inc. 	(6th
Cir. 	1986) 	780 F.2d 576 	[121 LRRM 2393], 	citing Southport
Petroleum Co. 	v. NLRB (1942) 	315 U.S. 	100 	[9 LRRM 411].
The NLRB 	has 	stated 	that 	it will 	find 	"alter 	ego" 	status
"where 	the 	enterprises 	have 	one 	substantially 	identical
management, 	business purpose, 	operation, equipment, customers
and 	supervision, 	as well 	as 	ownership." 	See Crawford Door
Sales Co. 	(1976) 	226 NLRB 1144 	[94 LRRM 1393]. 	If 	it is
determined 	that 	the 	former 	and present 	employer 	are, 	in
25

reality, 	the 	same 	or 	substantially 	identical 	entity, 	then the
predecessor's 	labor 	contract 	is 	binding upon 	the 	new employer.
This 	latter 	point 	is 	the 	basis 	for 	SDAE's 	argument 	that 	the
Foundation 	is 	the 	"alter 	ego" 	of 	the District. 	It 	asserts 	that
since 	the District 	and 	the Foundation are. 	in reality,
substantially 	identical 	entities, 	the Foundation should 	be
bound 	by 	the 	terms 	of 	the 	CBA between 	the District 	and 	the 	SDAE
with respect 	to 	hours, 	wages 	and 	other 	terms 	and 	conditions 	of
employment 	of 	its 	employees who 	are 	performing unit work
formerly provided 	by employees 	of 	the District.
The 	threshold 	linkage 	establishing 	alter 	ego 	status 	is 	a
showing 	of 	common 	ownership 	and 	control 	between 	the 	predecessor
entity and 	the 	successor 	entity. 	In 	this 	case 	there 	is 	clearly
no 	indication of 	common ownership. 	The District 	is 	a 	public
school 	employer 	as 	defined 	by 	the 	EERA and 	the Foundation 	is 	a
nonprofit, 	public 	benefit 	corporation established 	under 	the
State Corporation Code. 	The Foundation does 	not 	appear 	to 	fall
within 	the meaning 	of 	an 	"auxiliary 	organization" 	as 	defined 	by
Cal. 	Ed. 	Code, 	section 72670. 	The District and 	the Foundation
are 	governed 	by 	two 	separate 	governing 	boards. 	There 	is 	no
evidence 	of 	common membership 	on 	the 	two 	boards. 	The 	governing
board 	of 	the District 	operates 	pursuant 	to 	numerous 	powers
conferred 	by 	the 	California Education Code.7 The 	governing
7see 	Education Code 	section 	931 	et 	seq.
26

board 	of 	the Foundation operates 	on 	the 	basis 	of 	powers 	granted
by 	its 	articles 	of 	incorporation and 	its 	bylaws. 	The District
and 	the 	Foundation 	have 	separate 	administrative 	personnel.
Except 	for 	the 	presidency of 	Chancellor 	Peed, 	which ended 	in
mid-June 	1983, 	there 	is 	no 	evidence 	that 	any employees 	of 	the
District 	were 	concurrently 	employed 	by 	the Foundation.
Although 	it 	is 	acknowledged 	that 	Chancellor 	Peed 	helped
establish the Foundation and, 	over 	the years, 	has 	held various
administrative 	and 	elective 	positions 	with 	the 	organization,
this 	fact 	alone 	does 	not 	establish 	common ownership 	between 	the
District 	and 	the Foundation.
There 	is 	also 	insufficient 	evidence 	to make 	a 	finding 	that
there 	is 	common control 	between the 	two 	entities. 	The District
and 	the Foundation 	have 	separate 	administrative 	personnel.
There 	is 	no 	evidence 	that 	the District 	and 	the Foundation
exercised 	common 	control 	over 	their 	respective 	personnel
programs 	or 	the adoption of 	policies 	by 	the 	governing 	boards.
Furthermore, 	there 	is 	no 	evidence 	of 	interchange of 	employees
between 	the District 	and 	the Foundation 	which would
demonstrate 	that 	these 	entities 	are 	so 	closely related 	that
they 	exercise 	mutual 	control 	over 	the 	employees 	of 	the District
and 	the Foundation. 	Nor 	can 	it 	be 	said 	that 	the 	terms 	and
conditions 	of 	employment 	are 	the 	same 	for 	the 	employees 	of 	the
District 	and 	the Foundation as 	to 	demonstrate 	that 	there 	is
common control 	in 	the 	day-to-day 	operations 	of 	the Foundation
and 	the District. 	(See Crawford Door 	Sales Co.. 	supra.)
27

It 	is 	therefore 	concluded 	that 	no 	alter 	ego 	status 	exists
between 	the District 	and 	the Foundation.
2. 	Single Employer 	Argument
As 	an alternative argument. 	SDAE 	contends 	that 	the District
and 	the Foundation 	should 	be 	regarded 	as 	a 	single 	employer 	for
collective bargaining purposes 	and. 	for 	this 	reason. 	PERB
should 	find 	that 	the District 	and 	the Foundation 	engaged 	in 	an
unlawful 	unilateral 	transfer 	of 	unit work 	to 	non-unit
employees.
The 	"single 	employer" 	concept 	reflects 	a 	judgment 	that 	two
or 	more 	business 	entities 	may 	properly 	be 	considered 	as 	one 	for
various 	statutory 	purposes. 8
The 	PERB 	has 	previously 	considered 	the 	question 	of 	whether
two 	or 	more 	legal 	entities 	constituted 	a 	single 	school
employer. 	See Joint Powers Board 	of 	Directors 	Tulare County
Organization for Vocational Education. 	Regional 	Occupational
Center 	and Program 	(1978) 	PERB Decision No. 	57; 	Fresno Unified
School District 	(1979) 	PERB Decision No. 	82; 	Paso Robles Union
School 	District 	and 	San Raphael 	City High 	School 	District
8The 	term 	"single 	employer" 	is 	distinct 	from the 	term
"joint 	employer." 	Even 	though 	the 	terms 	are used 	almost
interchangeably, 	the NLRB distinguishes 	between the 	two.
Joint-employer 	cases 	are 	usually marked 	by 	the 	absence 	of
common 	ownership 	of 	the 	enterprises 	involved 	and 	the 	effective
control 	of 	one 	entity over 	the working 	conditions 	of 	the
employees 	of 	another 	entity. 	(See Morris, 	The Developing Labor
Law. 	(2d Ed. 	1983. Vol II, 	p. 	1444, 	citations omitted.) 	See
also Turlock School Districts 	(1977) 	EERB Order No. 	Ad-18, 	at
p. 	16. 	(Prior 	to January 1, 	1978. 	PERB was known as 	the
Educational 	Employment 	Relations 	Board 	or 	EERB.)
28

(1979) 	PERB Decision No. 	85 	and Turlock School Districts 	(1977)
EERB Order No. 	Ad-18. 	In Turlock and Fresno, 	the Board applied
the 	Broadcast 	Service 	test 	employed 	by 	the NLRB 	for 	determining
single 	employer 	status. 	(See Radio 	and 	Television Broadcast
Technician's Union. 	Local 	1264 v. 	Broadcast Service 	380 U.S.
255 	[58 	LRRM 2545].
The Broadcast 	Service 	test 	involves 	the 	examination of 	four
factors: 	(1) 	interrelation of operations; 	(2) 	common
management, 	(3) 	centralized 	control 	of 	labor 	relations 	and 	(4)
common ownership or 	financial 	control. 	There 	is 	no 	established
rule 	about 	the 	amount 	of 	weight 	that 	is 	attached when applying
each of 	these four 	elements 	to a 	particular 	case. 	However,
Charles Morris, 	the well-known 	labor 	law expert notes 	that,
. 	. 	. 	single-employer status does not
require 	the 	presence 	of 	all 	four 	criteria,
but 	depends 	upon all 	the 	circumstances 	of
the particular 	case. 	However, 	certain
factors 	carry more weight 	than 	others.
Common control 	of 	labor 	relations 	has 	been
described 	as 	a 	critical 	factor, 	while 	common
ownership 	is 	least 	important. 	See Morris,
The Developing Labor Law, 	supra, 	p. 	1442.
In 	the 	Turlock 	case 	the Board 	analyzed 	all 	four 	criteria
and 	determined 	that 	the 	two 	school 	districts 	in question were
separate 	employers within the meaning of 	EERA. 	In Fresno 	the
Board 	again 	applied 	the 	Broadcast 	Service 	test 	to 	determine
whether 	the District 	and 	a 	private 	bus 	company which provided
transportation 	for 	some District 	pupils were 	a 	single 	employer
for 	jurisdictional 	purposes. 	In that 	case, 	the Board 	found
29

that 	the District 	and 	the 	bus 	company were 	separate 	entities
and 	that 	the 	bus 	company was 	not 	a 	public 	school 	employer
within 	the meaning 	of 	the EERA, 	nor was 	the District 	considered
to 	be 	the employer 	of 	the 	bus 	company's 	drivers. 	In Paso
Robles-San Rafael, 	the Board 	did 	not 	apply 	the Broadcast
Service 	test. 	Instead, 	the Board 	said 	that 	the 	critical
factors 	in determining 	single 	employer 	status 	in 	that 	instance
were 	separate 	economic 	status 	and 	exclusive 	policy-making
authority. 	The Board, 	while 	not 	expressly rejecting the
Broadcast 	Service 	standard 	in favor 	of 	the 	test 	applied 	in Paso
Robles, 	still 	found 	that 	the high school 	districts 	in question
were 	not 	single 	employers 	for 	collective 	bargaining 	purposes.
The 	Broadcast 	Service 	standard 	will 	be 	applied 	to 	the 	facts
of 	this 	case. 	It appears 	that 	there 	is 	some 	interrelation of
operations 	between 	the District 	and 	the Foundation. 	In Fresno,
for 	example, 	the Board found 	interrelation of 	operations 	in the
District's 	involvement with 	the 	pickup 	schedule, 	but held 	that
the 	designation of 	routes 	and 	pickup 	time 	by the District 	did
not 	alter 	the 	independent 	nature 	of 	the 	bus 	company.
s	s	st	t	t 	ice 	stand 	in
st 	nd 	e
s 	emp 	or
B	B	Br	r	r	r 	s	s	st	t	t 	ta
By analogy here, 	it 	is noted 	that 	the District does 	have
control 	over 	the 	scheduling 	of 	the 	foreign 	language 	classes
presented 	by 	the Foundation. 	The District's 	involvement
includes 	advertising of 	the 	classes 	in 	the District's 	class
schedules 	and 	a 	role 	in determining which classes 	are 	to 	be
presented. 	Additionally, 	security at 	classroom sites 	is
provided 	by the District. 	However, 	the existence 	of 	this
30

interrelation of 	operations 	is not enough, 	in and of 	itself, 	to
determine 	that 	a 	single 	employer 	relationship 	exists.
There 	is 	also 	some evidence 	of 	common management 	between
the District 	and 	the Foundation. 	Just 	prior 	to 	the 	date 	that
the District 	and 	the Foundation entered 	into 	the 	contract
concerning 	the 	discontinued 	foreign 	language 	classes.
Chancellor 	Peed was 	the 	president 	of 	the Foundation.
Chancellor Peed's 	home address 	is 	the address 	of Foundation's
corporate 	office 	The Foundation's 	administrative 	or 	operating
offices 	are 	located 	in 	the 	same 	building 	and 	on 	the 	same 	floor
as 	the District 	administrative 	offices. 	The 	telephone 	number
for 	the Foundation's 	administrative office 	is 	the 	same 	as 	that
for 	Chancellor 	Peed's District 	office.
While 	the 	requirements 	of 	common management 	seem to 	be
squarely met. 	it 	is 	important to note 	that PERB has disregarded
common management 	as 	being 	significant 	in determining 	single
employer 	status. 	In Paso Robles-San Rafael, 	the Board 	held
that 	an 	elementary 	school 	district 	and 	an 	secondary 	school
district 	should 	not 	be 	considered a 	single 	employer, 	even
though the 	district 	shared 	administrative 	employees, 	including
the 	superintendent 	and 	a 	common administration which
recommended 	hirings 	and 	negotiated 	on 	behalf 	of 	both districts.
Centralized 	control 	of 	labor 	relations 	is 	perhaps 	the most
critical 	factor 	in determining single 	employer 	status. 	In 	this
31

case, 	it 	is 	difficult 	to determine 	to what 	extent 	the District
and Foundation 	have 	centralized 	control 	of 	labor 	relations.
Although the Foundation has 	its 	own personnel 	policies, 	salary
schedules 	and 	payroll 	procedures, 	the District 	"assisted" 	in
the 	hiring 	of 	Foundation employees who were 	to 	teach 	the
foreign 	language 	classes. 	It 	is 	unclear 	from the 	facts 	exactly
what 	"assist" 	means. 	Although it 	is 	evident 	that 	the
District's 	site 	deans were 	involved 	in 	the 	initial 	interviewing
of 	the 	instructors 	selected 	by 	the Foundation 	to 	teach 	the
foreign 	language 	classes, 	the facts 	do 	not 	indicate what
responsibility the 	site deans 	had. 	if 	any. 	for 	the 	actual
hiring, 	promotion, 	evaluation or 	termination of 	these
employees.9 . 	Additionally, 	there 	is 	no 	indication that 	the
9 In Prospect 	Lefferts 	Garden Neighborhood 	Assoc. 	(1984)
269 NLRB 	114 	[116 LRRM 1072], 	the NLRB held 	that 	a 	nonprofit
corporation and 	its 	association members were 	not 	a 	single
employer 	where 	the 	corporation 	had 	performed 	only 	paper 	work
functions 	in 	the 	hiring process 	of 	employees 	by member
organizations. 	In this 	case 	the nonprofit 	corporation, 	which
developed 	programs 	and 	advocacy on 	behalf 	of 	its 	members 	(25
neighborhood 	low income 	housing associations), 	recommended 	and
referred 	eligible 	CETA workers 	to 	its 	members 	and 	set 	up
interviews 	for 	interested 	members. 	The NLRB 	found 	that 	the
corporation 	did 	not 	have 	centralized 	control 	of 	labor 	relations
because 	it did 	not participate 	in the 	screening, 	hiring or
firing of 	employees.
Conversely, 	in North American Soccer 	League v. 	NLRB 	(5th
Cir. 	1980) 	613 F.2d 	1379 	[103 LRRM 2796], 	the court held that a
single 	employer 	relationship was 	present 	between a 	league 	and
its 	constituent 	soccer 	clubs. 	The 	court 	found 	that 	the 	league
"exercised 	a 	significant 	degree 	of 	control 	over 	the 	selection,
retention and 	termination of 	players." 	In addition, 	the 	league
board 	of 	directors 	was 	composed 	of 	one 	representative 	from each
constituent 	club.
32

District 	is 	in any way 	involved 	in any 	contract 	negotiations 	or
grievance 	handling 	that 	might 	involve Foundation 	employees.
Although 	there 	is 	evidence 	that 	the District 	site 	deans
were 	also 	involved 	in 	"supervising" 	the 	foreign 	language
classes 	that were 	to 	be 	taught, 	the 	supervision appeared 	to 	be
more 	an 	oversight 	function 	to 	insure 	that 	the 	classes 	were
actually 	taught 	as 	scheduled 	and 	that 	the Foundation's 	use 	of
District 	facilities 	was 	in compliance with District 	policy.
While 	it 	is 	fairly evident 	that 	the Foundation establishes 	the
working conditions, 	assignments, 	hours, 	wages and benefits for
the employees 	hired 	to 	teach the 	foreign 	language 	classes, 	it
is 	less 	clear what 	impact 	the District's 	"supervision" 	has 	in
these areas 	beyond 	that described 	above. 	Further, 	there 	is 	no
evidence whatsoever 	that 	the District 	has 	any 	involvement 	in
the 	labor 	relations 	matters 	of 	other 	Foundation employees. 	For
these reasons, 	therefore, 	it 	is found that there 	is no common
control 	of 	labor 	relations 	between 	the District 	and 	the
Foundation.
The 	fourth criteria, 	common ownership or 	financial 	control,
is 	also 	not 	present 	in this 	case. 	The Foundation clearly has
separate 	control 	over 	its 	financial 	operations. 	It 	establishes
the 	tuition fee 	to 	be charged for 	its 	courses, 	sets 	the 	salary
of 	its 	employees, 	has 	its 	own bank accounts 	and 	payroll
procedures, 	and submits 	its 	own state and federal 	tax
statements 	and 	any 	other 	financial 	reports 	that 	are 	required.
There 	is 	no 	evidence 	that 	the District 	has 	any 	involvement with
33

this 	aspect 	of 	the Foundation's 	operations. 	Although 	the
District 	collects 	tuition 	fees 	for 	the 	foreign 	language 	classes
presented 	by the Foundation, 	it 	turns 	this money over 	to 	the
Foundation for 	processing.10	10 In this 	case 	it 	is 	determined
that 	the District 	serves 	as 	a 	conduit 	for 	the 	funds 	that 	it
collects 	for 	the Foundation. 	The 	collection or 	channeling of
funds, 	alone, 	is not significant in determining financial
control. 	Additionally, 	here 	it does 	not alter 	the 	relationship
between 	the Foundation and 	the District. 	For 	this 	reason 	it 	is
concluded 	that 	common ownership 	or 	financial 	control 	is 	not
present.
In summary, 	it 	has 	been found 	that 	two 	of 	the four 	criteria
in 	the Broadcast 	Service 	test are 	satisfied 	in this 	case.
However, 	under 	PERB precedent where 	the 	test has 	been applied,
it 	appears 	that 	the Board 	does 	not 	consider 	these 	two 	factors
— 	interrelation 	of 	operations 	and 	common 	management 	-- 	to 	be
significant 	enough 	to 	establish a 	single 	employer
relationship. 	Even 	if 	the Paso Robles 	standard 	-- 	separate
economic 	status 	and 	exclusive 	policy-making 	authority 	-- 	is
applied 	to 	these facts, 	it 	cannot 	be 	found 	that 	these 	criteria
are met. 	Thus, 	it 	is concluded that no single employer
relationship 	exists 	between 	the District 	and 	the Foundation.
10In Prospect 	Lefferts 	Garden 	Neighborhood 	Assoc., 	supra,
the 	association 	received 	CETA funds 	to 	pay CETA workers
employed 	by member 	organizations. 	However, 	the 	association was
viewed as a 	conduit for 	the funds 	and, 	as 	such, 	the
relationship 	between 	the 	parties 	remained 	separate.
34

3. 	The Foundation 	is 	not An Employer 	under EERA
Having 	now determined 	that 	the 	District 	and 	the 	Foundation
do not 	have a 	single-employer 	relationship, 	it 	is 	further
appropriate 	to 	decide whether 	PERB 	has 	any 	basis 	for 	asserting
jurisdiction over 	the Foundation and 	its 	employees 	who 	are
involved 	in 	teaching 	the 	disputed 	foreign 	language 	classes.
Section 	3540.l(k) 	defines 	a 	public 	school 	employer 	as
follows:
"Public 	school 	employer" 	or 	"employer" 	means
the governing board 	of 	a 	school 	district, 	a
school 	district, 	a county board of
education, 	or 	a county superintendent of
schools.
Subsection 3540.l(j) 	defines 	a 	public 	school 	employee 	as:
. 	. 	. 	any person employed by any public
school 	employer 	except 	persons 	elected 	by
popular vote, 	persons 	appointed 	by the
Governor 	of 	this 	state, 	management
employees, 	and confidential 	employees.
The 	Foundation 	is 	a 	nonprofit 	corporation whose 	primary
objective 	and 	purpose 	is 	to 	assist 	and 	promote 	educational
activities 	of 	the District. 	While 	it 	is 	evident 	that 	the
District 	and 	the Foundation have 	had 	contractual 	relationships
since at 	least 	1982. 	there 	is 	no evidence 	that 	the Foundation
is 	an 	instrumentality or 	an auxiliary of 	the District 	as 	the
latter 	term is 	statutorily defined. 	From the 	record, 	it
appears 	that 	the Foundation does 	not 	fall 	within any of 	the
specifically 	enumerated 	categories 	of 	public 	employer 	as
defined by the Act and 	is. 	therefore, 	not a public 	school
35

11	employer.11 For 	the 	same 	reason, 	the 	employees 	of 	the
Foundation who 	teach 	foreign 	language 	classes 	cannot 	be
considered 	"public 	school 	employees" 	as 	defined 	in 	the EERA.
Thus, 	PERB 	lacks 	authority to 	assert 	jurisdiction over 	the
Foundation 	and 	its 	employees 	concerning 	the Foundation's
provision of 	the 	foreign 	language 	classes 	that were
discontinued 	by 	the District 	in March and August 	1983.
C. 	The District's Agreement with 	the Foundation for 	the
Provision 	of 	the Discontinued 	Foreign Language 	Classes
Amounted 	to 	a Unilateral Removal 	of Unit Work
As 	stated 	earlier. 	SDAE 	argues 	that 	since 	the Foundation 	is
an alter 	ego 	of 	the District, 	the 	agreement 	between the
District 	and 	the Foundation 	for 	the Foundation 	to 	provide
certain 	discontinued 	foreign 	language 	classes 	formerly 	taught
by unit 	employees 	should 	be viewed 	as 	an unlawful 	unilateral
transfer 	of 	unit work to 	non-unit members.
The District 	counters 	this 	claim by maintaining 	that 	it
neither 	contracted 	out 	for 	services 	nor 	transferred 	unit work
to non-unit 	employees. 	Consequently, 	there was 	no 	obligation
to 	negotiate 	over 	the decision 	to 	contract with 	the Foundation
regarding the 	courses 	in question. 	Instead, 	the District
asserts 	that 	it 	exercised 	its 	management 	prerogative 	to
eliminate a 	service 	and 	lay off 	affected 	employees. 	Its
subsequent 	role 	in 	procuring 	foreign 	language 	courses 	for
interested 	students 	was 	limited 	to 	responding 	to 	community
11See 	Fresno Unified School District, 	supra, 	at 	pp 	3-4
36

concerns, 	identifying alternatives 	to District-supplied
services, 	and 	then, 	once an acceptable alternative was
identified, 	to contract with that 	body, 	as 	a an 	independent
entity, 	to 	ensure 	that 	community members 	continued 	to 	receive 	a
quality 	product 	which was 	both 	convenient 	and 	affordable.
Additionally, 	the District 	argues 	that 	since 	its 	conduct with
the Foundation did 	not 	involve 	either 	contracting 	out 	or
transferring 	of 	bargaining unit work, 	it 	did 	not 	violate 	any of
the District's 	obligations 	under 	the EERA.
The 	main 	issue 	here 	is 	how to 	construe 	the District 	actions
on June 22, 	1983, 	and again on August 22, 	1983, 	when the
District 	board 	voted 	to 	expand 	the 	contract 	between 	the
District 	and 	the Foundation 	to 	include 	the 	remaining 	fee-based
foreign 	language 	classes 	that 	were 	offered 	by 	the 	District's
continuing 	education 	program.
The 	terms 	"contract out or 	subcontract" 	and 	"transfer" 	of
work 	have 	also 	been 	carried 	from 	the 	private 	sector 	to 	public
employment. 	Although no 	single 	definition of 	"subcontracting"
or 	"contracting out" 	exists, 	a 	review of NLRB cases 	indicate
that 	the 	term normally relates 	to 	the 	use 	of 	personnel 	outside
a 	plant 	to 	perform work 	previously performed 	by 	employees 	in
the 	bargaining unit. 12 "Transfer 	of 	work" 	cases 	normally
12see Fibreboard Paper Products Corp. 	v. 	NLRB 	(1964) 	379
U.S. 	203 	[57 LRRM 2609]; Westinghouse Electric Corp. 	(Mansfield
Plant) 	(1965) 	150 NLRB 1574 	[58 LRRM 1257]; 	First National
Maintenance Corp. 	v. 	NLRB 	(1981) 	452 U.S. 	666 	[107 LRRM 705].
37

involve 	determining whether 	the 	unit 	or 	persons 	performing work
still 	under 	the 	control 	of 	the 	employer 	had 	jurisdiction 	to
perform 	the work 	in dispute.
13
PERB 	has 	identified 	employer 	actions 	to 	contract 	out
services 	or 	to 	transfer 	work 	from one 	bargaining unit 	to
another 	as 	distinct 	subjects 	and 	has 	held 	that 	both decisions
(as well as 	the effects 	of 	such decisions) 	are negotiable.
(See Rialto Unified 	School 	District 	(1982) 	PERB Decision
No. 	209; 	Solano County Community College District 	(1982) 	PERB
Decision No. 	219; 	Arcohe Union School District 	(1983) 	PERB
Decision No. 	360 	and Oakland Unified 	School 	District 	(1983)
PERB Decision No. 	367.)
Although 	subcontracting 	of 	unit work 	is 	not 	specifically
enumerated 	as 	a 	scope 	item 	in section 	3543.2.14 the PERB 	has
applied 	the Anaheim test 	of 	negotiability 	to 	the 	subject 	and
13Boeinq 	Company 	(1977) 	230 NLRB 696 	[96 LRRM 1355], 	enf.
denied 	(CA 9 	1978) 	581 F2d 793 	[99 LRRM 2847]; 	University of
Chicago 	(1974) 	212 NLRB 190 	[86 LRRM 1073], 	enf. 	denied 	(CA 9
1975) 	514 F2d 942 	[89 LRRM 2113]; 	Office and Professional
Employees v. 	NLRB 	(DC Circ. 	1969) 	419 F2d 314 	[70 LRRM 3047],
enfd. 	(1968) 	168 NLRB 677 	[67 LRRM 1029].
14Section 	3543.2 	provides 	in pertinent 	part 	as 	follows:
(a) 	The 	scope 	of 	representation shall 	be
limited 	to matters 	relating to wages, 	hours
of 	employment, 	and other 	terms 	and
conditions 	of 	employment. 	"Terms 	and
conditions 	of 	employment" 	mean health and
welfare 	benefits 	. . . . 	leave, 	transfer 	and
reassignment policies, 	safety conditions of
employment, 	class size, 	procedures to be
38

determined 	that 	subcontracting 	of 	unit work 	is 	within 	scope
under EERA. 	The 	basis 	for 	this 	finding 	is 	that 	subcontracting,
. . . 	is 	a 	subject 	logically 	and 	reasonably-
related to wages, 	hours, 	and 	transfer and
promotional 	opportunities 	for 	incumbent
employees. 	. 	. 	. 	Actual or potential work
is withdrawn from unit employees, 	and wages
and 	hours 	associated 	with 	the 	contracted-out
work are 	similarly withdrawn. 	Further, 	such
diminution of 	unit work weakens 	the
collective 	strength of 	employees 	in the unit
and 	their 	ability 	to 	deal 	effectively with
the 	employer. 	Such 	impact 	affects work
hours 	and conditions, 	and 	thus 	is 	logically
and 	reasonably 	related 	to 	specifically
enumerated 	subjects 	within 	the 	scope 	of
representation. 	Arcohe Union 	School
District, supra, pp. 5-6.
In examining this 	case, 	it 	is 	concluded 	that 	the District's
contested 	actions 	more 	closely 	resemble 	a 	contracting 	out 	of
services 	than a 	transfer 	of 	work 	from one 	bargaining unit 	to
another. 	It was 	determined above 	that 	the Foundation 	is 	not
the 	alter 	ego 	of 	the District 	nor 	do 	the 	two 	entities 	have 	a
single-employer 	relationship. 	Therefore, 	there 	is no basis 	for
deciding 	that 	the District's 	action 	in 	contracting with 	the
Foundation amounted 	to 	a 	transfer 	of 	unit work 	to 	non-unit
employees. 	Rather, 	it 	is appropriate 	that 	this 	action should
be 	characterized 	as 	a 	subcontracting or 	contracting-out 	of
services.
used 	for 	the evaluation of 	employees,
organizational 	security 	. . . . 	procedures
for 	processing 	grievances 	. . . . 	and 	the
layoff 	of 	probationary 	certificated 	school
district 	employees 	. . . .
39

Unilateral 	Action
An 	employer 	commits 	an unfair 	practice 	in violation 	of 	its
duty 	to 	bargain 	in good 	faith when 	it unilaterally makes 	a
change 	in the 	terms 	and 	conditions 	of 	employment 	of 	unit
employees 	within 	the 	scope 	of 	representation without 	notifying
and 	affording 	the 	employee 	organization 	an 	opportunity 	to
bargain. 	Pajaro Valley Unified 	School District 	(1978) 	PERB
Decision No. 	51; 	San Mateo County Community College District
(1979) 	PERB Decision No. 	94; 	San Francisco Community College
District 	(1979) 	PERB Decision No. 	105.
An unlawful 	unilateral 	change will 	be 	found where 	the
charging party proves, 	by a 	preponderance of 	evidence, 	that an
employer 	unilaterally altered 	an 	established 	policy. 	Grant
Joint Union High School District 	(1982) 	PERB Decision No. 	196.
The nature 	of 	existing policy 	is 	a question of 	fact 	to 	be
determined 	from an examination of 	the 	record 	as 	a whole. 	It
may be 	embodied 	in 	the 	terms 	of 	a 	collective agreement 	(Grant.
supra) 	or. 	where a contract 	is 	silent or ambiguous as 	to a
policy, 	it may be 	ascertained 	by examining past 	practice 	or
bargaining 	history. 	Marysville 	Joint Unified 	School 	District
(1983) 	PERB Decision No. 	314; 	Rio Hondo Community College
District 	(1982) 	PERB Decision No. 	279.
It 	should 	be 	clarified 	here 	that 	this 	charge 	does 	not
challenge 	the District's 	original 	decision 	in March 	1983 	to
eliminate 	certain fee-based 	foreign 	language 	classes, 	to 	lay
40

off 	unit 	employees 	who 	taught 	the 	classes 	and 	eliminate
positions 	from the unit. 	The 	right 	to 	determine whether 	there
was 	insufficient work 	to 	justify 	the 	existing 	number 	of
employees 	or 	insufficient 	funds 	to 	support 	the work force 	is 	a
matter 	of 	fundamental 	managerial 	concern which 	is 	outside 	the
scope 	of 	representation. 	See Healdsburg Union High 	School
District 	(1984) 	PERB Decision No. 	375. 	and Newman-Crows Landing
Unified 	School District 	(1982) 	PERB Decision No. 	223 	at p. 	13.
Although the 	decision to 	initiate 	a 	layoff 	is within the
managerial 	prerogative, 	bilateral 	negotiations 	are 	required 	as
to 	the 	effects 	and 	implementation 	of 	such decision.
(Healdsburg Union High 	School District, 	supra.)
The 	evidence 	discloses 	that 	the CBA had 	a 	provision
pertaining 	to 	reduction 	in force, 	layoff 	procedure 	and
reinstatement rights. 	Additionally, 	it 	is 	shown that 	the
layoffs 	initiated 	in March 	1983 	were 	carried 	out 	in accord with
the 	relevant 	contract 	provisions 	and was 	therefore 	lawful 	under
the Act.
However, 	the District's actions on May 23. 	1983. 	following
the 	implementation of 	its March 	1983 	layoff 	decision, 	show that
a 	unilateral 	decision was 	made 	to 	contract 	out 	services 	that
had 	been performed 	by unit 	employees 	and which 	the District 	had
earlier 	determined 	to 	discontinue.
Contrary 	to 	the 	District's 	assertion 	that 	it relinquished
any 	responsibility for 	the 	provision 	of 	these 	courses 	when 	it
announced 	in March 	1983 	that 	it was 	discontinuing 	certain
41

courses, 	the 	record 	shows 	that 	it was 	the District who 	took 	the
initiative 	to 	consider 	alternative 	sources 	for 	funding 	teaching
services 	that 	had 	traditionally 	been provided 	by 	its 	own
employees. 	Even though the 	board docket 	for May 23, 	1983,
indicated 	that 	the 	board 	would 	be 	discussing 	and 	considering
funding alternatives, 	there 	is 	no 	evidence 	that 	the 	board was
obligated 	to 	act 	as 	a 	"procurer" 	for 	the 	community and 	to
contract with 	the 	Foundation 	for 	alternative 	services.
Additionally, 	there was 	no 	contractual 	authority for 	the
District 	to 	contract 	out 	teaching 	services 	without 	first
meeting and 	negotiating with SDAE 	over 	the 	decision. 	If, 	as
the District asserts, 	it 	had 	truly 	intended 	to divest 	itself 	of
any 	interest 	in the 	services 	that 	it 	had 	decided 	to
discontinue, 	the District 	could 	have 	left 	the 	initiative 	for
procuring 	alternative 	services 	to 	the Foundation or 	to 	the
community 	itself.
The District's unilateral action of August 22, 	1983, 	is
even more obvious 	than the June 	22, 	1983 	action. 	At 	a 	special
public 	meeting 	of 	the 	board 	on that 	date, 	the 	board voted 	to
place 	all 	remaining 	fee-based 	foreign 	language 	classes 	offered
by 	the 	continuing 	education program under 	the 	auspices 	of 	the
Foundation. 	The 	decision was 	to 	include 	the 	provision of 	these
teaching 	services 	in the 	contract 	that was 	made with the
Foundation on or about June 22, 	1983.
In 	essence 	the August 	22 	action was 	specifically designed
to 	continue 	services 	that were 	to 	be 	provided 	by unit 	employees
42

through a 	separate 	non-District 	entity. 	This 	conduct 	is
distinguished 	from 	the March 	action 	to 	discontinue 	services
which were 	later 	continued 	through 	a 	separate 	entity, 	the
Foundation. 	It 	is 	unknown to what 	extent 	this 	latter 	decision
impacted members 	of 	the 	bargaining unit 	since 	the 	remaining
courses were 	taught 	by hourly 	instructors. 	Additionally, 	there
is 	no 	evidence 	concerning whether 	this 	decision necessitated
any 	layoffs 	or 	led 	to any elimination of 	unit 	positions.
Nonetheless, 	as 	the Board 	held 	in Arcohe Union School District.
supra, 	both decisions 	to 	contract out 	services 	resulted 	in
"actual 	or 	potential withdrawal 	of 	work from unit 	employees,
and wages 	and 	hours 	associated 	with 	the 	contracted-out work"
Additionally, 	these 	contracting-out decisions 	altered 	an
existing District 	policy 	and 	practice 	of 	offering 	fee-based,
non-credit, 	foreign 	language 	classes 	through the District's
continuing 	education 	program, 	using 	adult 	education
instructors who were unit 	employees. 	This 	change 	of 	policy has
had, 	by definition, 	a generalized 	effect and continuing 	impact
upon wages, 	hours 	and 	other 	terms 	and 	conditions 	of 	employment
of 	bargaining unit members. 	Grant 	Joint Union High School
District, 	supra. 	Absent a valid defense, 	such conduct
constitutes 	an unlawful 	unilateral 	change 	of 	matters within 	the
scope of 	representation 	in violation of 	subsection 3543.5(c).
The District's 	characterization of 	its 	role 	as 	a mere
procurer 	"of 	alternative 	teaching 	services" 	in response 	to
43

community pressure 	is 	not 	persuasive.15 Thus, 	the District's
argument 	against 	a 	finding 	that 	it 	contracted 	out unit work
with 	the Foundation must 	be 	rejected.
D. 	Waiver 	Defenses
Respondent argues 	in 	its 	defense 	that 	even 	if 	it 	is
construed 	that 	the 	District 	contracted 	out 	or 	transferred
bargaining unit work, 	the 	SDAE waived whatever 	rights 	it may
have 	had 	to 	negotiate 	over 	the 	subject 	by 	its 	acquiescence 	to 	a
past 	practice 	of 	the District's 	subcontracting 	of 	bargaining
unit work 	and 	by 	its 	failure 	to 	request 	negotiations 	despite
notice 	and 	an opportunity to 	do 	so.
1. 	Past Practice
The 	record 	shows 	that prior 	to June 	1983. 	the District had
entered 	into 	agreements 	with 	the 	Foundation 	for 	the 	Foundation
15This 	case 	is 	distinguished 	from the Board's 	decision 	in
Stanislaus 	County Department 	of 	Education 	(1985) 	PERB Decision
No. 	556. 	Stanislaus 	provides 	a 	narrow holding 	limited 	to a
unique 	factual 	situation. 	In that 	case 	the Board 	considered
the 	issue 	of 	whether 	the 	County had 	failed 	to 	negotiate 	its
decision and 	the 	effects 	of 	that 	decision 	to
cease 	operation 	of 	three 	child 	development 	centers 	for 	migrant
children and 	to 	select 	an outside 	nonprofit 	corporation 	to
perform 	that 	function. 	The Board 	held 	that 	the 	decision 	to
cease 	operations 	was 	not 	one 	appropriately relegated 	to 	the
negotiations 	process 	because 	it would 	have 	significantly
abridged 	the 	employer's 	freedom 	to 	exercise 	managerial
prerogatives 	essential 	to 	its 	mission. 	Since 	the migrant 	child
program was 	a 	federal 	program, 	federally financed 	and 	not
mandated 	by State 	law, 	it was 	not 	a 	county program which would
have 	survived 	as 	such, 	had 	federal 	funds 	been withdrawn. 	Thus,
since 	the County's 	role 	in the 	program was 	that 	of 	a 	conduit
for 	federal 	funds, 	the County's 	decision to 	cease direct
operation, 	but 	continue 	its 	role as 	regional administrator 	of
the migrant program, 	was 	a matter 	outside 	the 	scope of
representation.
44

to 	present 	various 	educational 	offerings 	in 	such 	subjects 	as
real 	estate, 	nursing, 	zoo management and military education.
However, 	there 	is 	no 	evidence 	that 	any of 	these 	courses were
ever 	taught 	by bargaining unit 	employees 	or, 	in fact, 	could
have 	been 	taught 	by 	bargaining unit 	employees 	if 	the District
had 	chosen 	to 	offer 	such 	instruction.
Furthermore, 	the District has 	failed 	to 	present 	any
evidence 	that 	the Foundation 	has 	previously 	offered 	non-credit
foreign 	language 	courses 	that 	were 	previously 	taught 	by
District 	employees 	in 	the 	continuing 	education 	program 	or 	that
the 	parties 	had 	ever 	considered 	such 	an 	arrangement
For 	these 	reasons, 	it 	is 	concluded 	that 	the District has
failed 	to 	show that 	there 	is 	an established 	past 	practice 	of
the District 	contracting 	out 	unit work 	to 	the Foundation. 	The
past 	contracts 	between 	the District 	and 	the Foundation for 	the
Foundation 	to 	sponsor 	or 	coordinate 	educational 	programs 	for
the District 	did 	not 	involve 	services 	that 	had 	been provided 	by
adult education unit 	employees. 	Thus, 	the 	past 	practice
argument 	is 	rejected.
2. 	Failure 	to Request Negotiations
Prior 	to unilaterally changing a matter within scope, 	an
employer 	has 	the 	obligation 	to 	provide 	the 	exclusive
representative of 	its 	employees with notice of. 	and 	a
reasonable 	opportunity to 	negotiate 	over, 	the 	contemplated
change. 	In this 	regard 	the District 	has 	failed 	to 	prove 	that
45

it 	provided 	SDAE with prior 	notice 	of 	either 	decision 	to
contract 	out 	the 	teaching 	services 	or 	a 	reasonable 	opportunity
to 	negotiate 	prior 	to 	implementation of 	these 	decisions.
As 	a 	first 	part 	of 	this 	defense, 	the District 	asserts 	that
SDAE 	had 	notice 	of 	its 	intent 	to 	contract with 	the Foundation
by virtue 	of 	SDAE 	President 	Sullivan's 	regular 	attendance 	at
the District 	executive 	council 	meetings which 	preceded 	the
board 	meetings 	and 	through 	information 	provided 	in 	the 	board's
docket 	about 	action 	items 	that were 	to 	be 	considered.
Although 	it 	has 	been 	shown 	that 	SDAE 	received 	copies 	of 	the
board of 	trustees' 	dockets, 	which included action items, 	prior
to the board meetings of May 23, 	June 22 and August 23, 	1983,
the 	listing 	of 	action 	items 	in 	the 	agendas 	was 	insufficient
notice 	to 	SDAE 	that 	the District was 	actually contemplating 	a
concrete 	proposal 	to 	contract with 	the Foundation.
The May 	23 	docket 	listed 	the 	subject 	as 	funding
alternatives 	for 	certain 	discontinued 	continuing 	education
classes 	to 	be 	presented 	for 	the 	board's 	consideration and
discussion. 	However, 	there was 	nothing 	in the docket which
indicated 	that 	the 	board 	would 	make 	a 	firm decision 	on 	that
date 	to 	contract 	for 	services with any of 	the 	alternative
services 	that were 	presented.
The 	June 	22 	docket, 	which contained 	a 	proposed 	agreement
between 	the District 	and 	the Foundation for 	such classes, 	was
an 	indication 	that 	the District 	had 	already taken 	steps 	to
implement 	its May 23 	decision.
46

The PERB 	has 	held 	that 	general 	publication of 	a 	board 	of
trustees 	agenda 	does 	not 	constitute 	effective 	notice 	of
proposed 	changes 	in 	scope 	matters. 	Arvin Union 	School District
(1983) 	PERB Decision No. 	300. 	Neither does 	the fact 	that SDAE
President 	Sullivan 	attended 	District 	executive 	council
meetings, 	where 	the 	docket 	items were 	reviewed 	just 	prior 	to
the 	board meeting, 	constitute 	effective 	notice 	to 	SDAE.
Los 	Angeles 	Community College District 	(1982) 	PERB Decision
No. 252.
Neither 	the 	discussion 	at 	the 	District 	executive 	council
meeting 	prior 	to 	the 	board's 	special 	public 	meeting 	on
August 22. 	1983, 	nor 	the docket of 	action items 	for 	that
meeting 	gave 	any 	hint 	that 	the 	board 	was 	considering 	a 	proposal
to 	discontinue 	the 	remaining 	foreign 	language 	classes 	and
include 	them 	in 	the 	June 	1983 	contract with 	the Foundation.
It 	is, 	therefore, 	found that 	the District failed 	to provide
adequate 	notice 	to 	SDAE 	through 	its 	executive 	council 	meetings,
the 	board dockets, 	or 	any other 	effective means 	of 	proposed
actions 	to 	remove unit work.
In order 	to 	prove 	that 	SDAE waived 	its 	right 	to 	negotiate
over 	the District's 	decision 	to 	contract with 	the Foundation 	in
June 	and August 	1983 	for 	services 	formerly 	provided 	by unit
employees, 	the District must 	show demonstrative 	behavior 	on 	the
part 	of 	SDAE waiving 	a 	reasonable 	opportunity 	to 	bargain over
the 	decision and 	the 	effects 	of 	such decision once 	it 	had
notice. 	San Mateo 	Community College District 	(1979) 	PERB
Decision No. 	94.
47

Even 	if 	it 	is 	argued 	that 	the District 	gave 	prior 	notice,
of 	its 	intent, 	the District failed 	to 	provide a 	reasonable
opportunity for 	bargaining 	prior 	to 	taking 	action 	in May. 	June
and August 	1983.
Although 	Sullivan was 	present 	at 	the May 23 	board 	meeting
when 	the 	decision was made 	to 	approve 	a 	contractual 	arrangement
with the Foundation, 	it 	is 	clear 	from the 	facts 	that 	shortly
after 	this date, 	on or about June 6, 	1983. 	the District's
administration 	took 	steps 	to 	implement 	the 	decision 	by meeting
with 	the 	site deans 	to 	plan for 	a 	summer 	session. 	The District
has 	offered 	no 	explanation for 	its 	haste 	in moving 	forward with
this 	program even 	before 	the 	board 	of 	trustees 	had 	formally
approved 	the 	contract with 	the Foundation. 	These 	steps were
taken without 	SDAE's 	knowledge. 	Even 	if 	SDAE 	had 	demanded 	to
bargain on May 23, 	it appears 	that 	it would have been an act of
futility 	considering 	the District's 	actions 	shortly
thereafter. 	Likewise, 	a 	SDAE request for 	negotiations 	after
the District's 	approval 	of 	the 	proposed 	contract 	on June 	22 	and
its 	subsequent 	action on August 	22, 	1983 	would 	have 	been
further 	acts 	of 	futility. 	The 	failure 	to undertake 	a 	futile
act does not constitute a waiver. 	Arvin, 	supra. 	Here 	the
District 	has 	failed 	to 	present 	any 	convincing 	evidence 	that
SDAE 	had 	a 	reasonable 	opportunity 	to 	request 	bargaining 	over
its 	decisions 	to 	contract 	out unit work 	and 	thereby waived 	its
right 	by the 	failure 	to make 	a 	timely request.
48

E. 	Summary
It 	has 	been determined 	that 	the 	decision 	in March 	1983 	to
discontinue 	certain continuing 	education 	courses, 	terminate
some 	teaching 	services 	and 	institute 	unit 	member 	layoffs 	was
within 	the District's 	managerial 	discretion as 	a 	matter 	outside
the 	scope of 	representation. 	However, 	prior 	to 	the District's
decision on May 23 	and again on August 22, 	1983, 	to 	contract
with 	the Foundation for 	the 	provision 	of 	the 	foreign 	language
courses 	traditionally 	taught 	by 	the District's 	adult 	education
faculty unit 	employees, 	it was 	obligated 	to 	provide 	SDAE with
notice 	of 	its 	proposed 	decisions 	and 	a 	reasonable 	opportunity
to 	negotiate 	over 	the decisions 	and 	the 	effects 	of 	such
decisions 	prior 	to 	taking action. 	The District 	has 	failed 	to
prove 	that 	it 	fulfilled 	its 	statutory 	bargaining 	obligation
under 	EERA prior 	to 	taking unilateral 	action 	on matters 	within
the 	scope of 	representation. 	It 	is 	thus 	concluded that, 	by
this 	conduct, 	the District violated 	its 	duty to negotiate 	in
good 	faith with SDAE, 	the 	exclusive 	representative 	of 	its 	adult
faculty 	bargaining unit. 	Such unilateral 	action on a 	matter
within the 	scope 	of 	representation 	is 	a 	per 	se 	refusal 	to
negotiate 	in good 	faith and 	a violation 	subsection 	3543.5(c).
NLRB v. 	Katz, 	supra; 	San Francisco Community College District
(1979) PERB Decision No. 	105.
The District's 	failure 	and 	refusal 	to 	negotiate with SDAE
concurrently violates 	the 	organization's 	right 	as 	the 	exclusive
49

representative 	to 	represent 	unit 	members 	in 	their 	employment
relations 	and 	interferes with 	the 	subject 	employees 	because 	of
their 	exercise 	of 	representational 	rights 	in violation of
sections 	3543.5(b) 	and 	(a). 	San Francisco Community College
District, supra.
REMEDY
Subsection 	3541.5(c) 	of 	the EERA empowers 	the Board:
. 	. 	. 	to issue a decision and order
directing 	an offending 	party 	to 	cease 	and
desist 	from the 	unfair 	practice 	and 	to 	take
such 	affirmative 	action 	. . . 	as 	will
effectuate 	the 	policies 	of 	this 	chapter.
Since 	it 	has 	been found 	that 	the District 	committed 	an
unfair 	practice 	by 	unilaterally 	contracting 	out 	bargaining 	unit
work without 	first 	negotiating with 	the 	exclusive
representative, 	it 	is appropriate 	to 	order 	the District 	to
cease 	and 	desist 	from taking unilateral 	actions 	on matters
within 	the 	scope 	of 	representation without 	first 	affording 	the
exclusive 	representative 	SDAE with notice 	and 	an 	opportunity 	to
negotiate 	over 	such matters.
Absent unusual 	circumstances, 	where 	an employer 	has made an
unlawful 	unilateral 	change, 	a 	remedy requiring 	the 	restoration
of 	the 	status quo 	is 	appropriate 	to effectuate 	the 	purposes 	of
the Act because 	it restores, 	to the extent possible, 	the
positions 	the 	parties 	occupied 	prior 	to 	the unilateral 	change.
Oakland Unified School District 	(1983) 	PERB Decision No. 	367;
Rio Hondo Community College District 	(1983) 	PERB Decision
No. 	292; 	Plycoma Veneer Co. 	(1972) 	196 NLRB 1009 	[80 LRRM 1222],
50

Accordingly, 	the District will 	be 	ordered 	to 	rescind
whatever 	contractual 	arrangement 	it 	may 	currently 	have 	with 	the
Foundation 	to 	provide 	the 	foreign 	language 	classes 	that were
contracted for on June 22, 	1983, 	and, 	on or about. 	August 22,
1983, 	and 	restore 	the work to 	the unit until 	it has 	satisfied
its 	obligations 	to 	negotiate with 	the 	SDAE 	over 	such decisions
and 	their 	effects.
Additionally, 	the District 	is 	ordered 	to reinstate 	(at 	the
earliest 	practicable 	time) 	all 	unit 	employees who were 	placed
on 	layoff 	status 	as 	a 	result 	of 	the August 	22 	decision and make
these 	affected 	employees whole 	for 	any wages 	or 	other 	benefits
lost as 	a 	result 	of 	the unlawful unilateral 	change. 	Back pay
is 	to 	be 	calculated 	from the 	effective 	date 	of 	layoff 	until 	the
status 	quo 	is 	restored 	and will 	be 	offset 	by any wages 	actually
earned 	during 	the 	interim period 	through 	other 	employment. 	All
back 	pay 	is 	to 	include 	interest 	at 	the 	rate 	of 	10 	percent 	per
annum.
Since 	the original 	decision on March 9, 	1983, 	to 	lay off
employees 	and 	the 	procedure 	followed 	in doing 	so was 	not
improper, 	there 	is 	no basis 	to 	order 	restoration of 	the
eliminated 	positions 	and 	reinstatement 	of 	those 	employees 	laid
off 	by the final 	board 	action of May 23, 	1983. 	This 	remedy can
impose 	a 	bargaining 	obligation on 	the District 	only 	as 	of 	the
time 	of 	its 	illegal 	act, 	which was 	the 	contracting out 	of work,
not 	the 	layoffs. 	However, 	those 	employees 	affected 	by the
layoffs 	still 	possess 	certain 	legal 	rights which 	provided 	for
51

their 	possible 	recall 	from 	layoff. 	It 	is 	therefore 	appropriate
to 	order 	that 	those 	recall 	rights 	be 	reinstated 	from 	the
effective 	date 	of 	layoff. 	(See 	Solano 	County Community College
District, 	supra at p. 	16.)
It 	is 	also 	appropriate 	that 	the District 	be 	required 	to
post 	the Notice 	to Employees 	attached 	to 	this 	Proposed Decision
as Appendix A, 	which 	incorporates 	the 	terms 	of 	the Proposed
Order. 	Posting 	such a 	notice will 	provide 	employees with
notice 	that 	the 	employer 	has 	acted 	in an unlawful 	manner, 	and
is 	being required 	to 	cease 	and 	desist 	from this 	activity. 	It
also 	effectuates 	the 	purposes 	of 	the Act 	that 	employees 	be
informed 	of 	the 	resolution of 	the 	controversy and will 	announce
the 	employer's 	readiness 	to 	comply with 	the 	ordered 	remedy.
See Placerville Union School District 	(1978) 	PERB Decision No.
69; 	Pandol 	and 	Sons v. 	Agricultural Labor Relations Board
(1979) 	98 Cal.App.3d 580. 	587; 	NLRB v. 	Express Publishing Co.
(1941) 	312 U.S. 	426 [8 LRRM 415].
PROPOSED 	ORDER
Upon the 	foregoing findings 	of 	fact, 	conclusions 	of 	law and
the 	entire 	record 	in this 	case, 	and 	pursuant 	to EERA subsection
3541.5(c), 	it 	is hereby ORDERED that 	the San Diego Community
College District, 	its 	governing board 	and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and 	refusing 	to 	meet 	and 	negotiate 	in
good 	faith with 	the 	exclusive 	representative 	of 	its 	adult
52

education 	faculty 	bargaining 	unit 	by 	taking 	unilateral 	action
on matters within the 	scope 	of 	representation, 	specifically
with reference 	to 	the decisions, 	and 	the 	effects 	of 	such
decisions, 	to 	contract 	out with the 	San Diego 	Community College
District Foundation, 	Inc., 	for 	the provision of 	teaching
services 	formerly 	provided 	by members 	of 	the 	adult 	education
faculty 	bargaining 	unit.
2. 	Denying to 	the San Diego Adult Educators, 	Local
4289, 	American Federation of Teachers. 	California Federation of
Teachers, 	AFL-CIO, 	its 	right 	to represent unit members by
failing 	and 	refusing 	to 	negotiate 	about 	matters 	within 	the
scope 	of 	representation.
3. 	Interfering with 	employees 	represented 	by 	the 	San
Diego Adult Educators, 	Local 	4289, 	because of 	the exercise of
their 	right 	to 	select 	an exclusive 	representative 	to 	meet 	and
negotiate with 	the 	employer 	on 	their 	behalf 	by unilaterally
changing 	matters 	within 	the 	scope 	of 	representation without
first 	providing 	the 	exclusive 	representative with 	notice 	and
the 	opportunity 	to 	meet 	and 	negotiate 	about 	such matters.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Unless 	the 	parties 	reach a 	contrary agreement,
the District 	shall 	rescind 	any 	current 	contractual 	arrangement
that 	it 	has 	with 	the Foundation 	to 	provide 	foreign 	language
courses 	that were 	formerly 	taught 	by 	its 	adult 	education
53

faculty unit 	employees 	and 	restore 	the work 	to 	the unit until
it 	has 	satisfied 	its 	obligation 	to 	meet 	and 	negotiate with 	the
San Diego Adult Educators Association, 	Local 4289.
2. 	Meet 	and 	negotiate with 	the 	San Diego Adult
Educators Association, 	Local 4289, 	about the decisions of
June 22 and August 22. 	1983, 	(and 	the effects 	of 	these
decisions) 	to 	enter 	into 	an agreement with the Foundation for
the 	provision 	of 	foreign 	language 	classes 	that were 	formerly
taught 	by unit 	employees until 	the 	parties 	reach agreement 	or
exhaust 	the 	statutory 	impasse 	procedure.
3. 	Reinstate 	all 	eliminated 	positions 	and 	offer
employment 	to unit 	employees 	placed 	on 	layoff 	status 	as 	a
result of the August 22, 	1983, 	contracting out decision.
Additionally, 	make 	these 	employees whole 	for 	any 	loss 	of wages
or 	benefits 	as 	a result of unlawful unilateral 	change, 	from the
effective 	date 	of 	the unilateral 	change until 	the 	status 	quo 	is
restored.
4. 	Restore all 	reinstatement 	rights 	to 	employees 	who
were 	placed 	on 	layoff 	status 	by action of 	the District 	board 	of
trustees on May 23, 	1983.
5. 	Within ten 	(10) 	workdays 	from service of 	the
final 	decision 	in this matter, 	post at all 	school 	sites 	and 	all
other work 	locations where 	notices 	to unit 	employees 	are
customarily placed, 	copies 	of 	the Notice 	to 	employees 	attached
as 	an Appendix hereto. 	The Notice 	must 	be 	signed 	by an
54

authorized 	agent 	of 	the 	District 	indicating 	that 	the 	District
will 	comply with the 	terms 	of 	this 	Order. 	Such posting 	shall
be maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken to 	insure 	that 	the
notice 	is 	not 	reduced 	in size, 	altered, 	defaced 	or 	covered 	by
any other 	material.
6. 	Upon 	issuance of 	a 	final 	decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	the Order 	to
the 	Los 	Angeles 	Regional 	Director 	of 	the Public Employment
Relations 	Board 	in 	accordance with 	the 	director's 	instructions.
Pursuant 	to California Administrative Code, 	title 	8.
part 	III. 	section 32305. 	this Proposed Decision and Order 	shall
become final on May 19, 	1986. 	unless 	a 	party files a 	timely
statement 	of 	exceptions. 	In accordance with the 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. 	See California
Administrative Code, 	title 8, 	part 	III, 	section 32300. 	Such
statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	actually
received 	by 	the 	Public 	Employment 	Relations 	Board 	itself 	at 	the
headquarters 	office 	in Sacramento 	before 	the 	close 	of 	business
(5:00 p.m.) 	on May 19, 	1986. 	or 	sent by telegraph, 	certified or
Express United 	States mail, 	postmarked 	not 	later 	than the 	last
day for 	filing 	in order 	to 	be 	timely filed. 	See California
55
.

Administrative Code, 	title 8. 	part 	III. 	section 32135. 	Any
statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	served
concurrently with 	its 	filing 	upon 	each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	be 	filed with 	the Board
itself. 	See California Administrative Code, 	title 	8, 	part 	III,
section 	32300 	and 	32305.
Dated: 	April 28, 	1986
W. JEAN THOMAS
Administrative Law Judge
56