Whisman Elementary School District (PERB 0868E)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES 	ASSOCIATION
AND 	ITS 	WHISMAN CHAPTER #355,
Charging 	Party,
v.
WHISMAN ELEMENTARY SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1316
PERB 	Decision No. 868
February 	14, 	1991
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Appearances: 	Patricia L. 	Roy, 	Senior Field Representative, 	for
California 	School 	Employees Association and 	its 	Whisman Chapter
#355; 	Littler, 	Mendelson, 	Fastiff & Tichy by Richard M. 	Noack
and Karen R. 	Rodriguez, 	Attorneys, 	for Whisman Elementary School
District.
Before Shank, 	Cunningham and Carlyle, 	Members.
DECISION
CUNNINGHAM, 	Member: 	This 	case comes before the Public
Employment Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the Whisman Elementary School 	District 	(District) 	to a proposed
decision by an administrative 	law judge 	(ALJ), 	who determined
that the District violated 	section 3543.5(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA)1 by utilizing
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 	states, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to:
(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.
-~----->
~
~

volunteers 	to 	perform work previously performed 	by 	classified
unit 	employees. 	Based upon review of the 	entire record, 	we
hereby reverse 	the ALJ's 	decision 	for the reasons 	set 	forth
below.
FACTUAL 	SUMMARY
In the 	fall of 	1980, 	the District created a Tutorial Center
Program 	(Center) 	within the District 	at 	the Crittenden Middle
School 	(Crittenden). 	The Center was 	available to 	students
during 	the 	regular 	school 	day 	if 	they were 	referred by 	individual
teachers. 	The Center was 	also available 	to drop-in 	students 	on a
voluntary basis 	before 	and 	after 	school 	and during 	lunch periods.
The Center was 	staffed by two 	full-time aides. 	In
conjunction with teachers, 	the aides 	coordinated the work of
the 	students who had been referred to 	the Center. 	Assistance
to 	the 	students 	who 	had been referred by 	teachers 	involved:
modification of 	lesson plans 	to meet 	individual 	needs 	of
students; 	administration of practice tests 	and 	specifically
designed diagnostic 	tests; 	the teaching of 	specific 	skills 	as
requested by teachers; 	participation in parent 	conferences,
assistance 	in research or reports; 	and assistance 	in organization
of 	homework 	and 	long-term 	assignments.
The assistance provided to drop-in 	students 	was 	of 	a
different 	nature 	than that provided 	to 	students 	who 	had been
referred by 	teachers. 	Although drop-in 	students 	may have been
eligible 	for 	some 	of 	the 	more 	sophisticated 	assistance provided
to 	students 	referred by teachers, 	the practice of the Center
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aides was 	to 	limit 	involvement to 	general 	assistance with
research and homework. 	The aides 	also provided general
supervision 	in the 	room, 	creating a 	study hall 	environment 	for
drop-in students.
In 	1982 	the Center was 	eliminated due to 	lack of 	funding.
The 	two 	instructional aides who 	staffed the Center, 	Donna Aiello
(Aiello) 	and Helen Sasaki 	(Sasaki), 	were placed into five-hour-
per-day 	aide positions 	from 	their 	full-time positions 	at 	the
Tutorial 	Center. 	Both of 	these positions 	involved 	lower 	salaries
than the 	instructional 	aide 	jobs.
Testimony reveals that, 	between 	1982 	and 	1988, 	the District
did 	not 	maintain or operate 	a program resembling the Center.
At 	the 	start of the 	1988-89 	school 	year, 	the new principal
at Crittenden, 	Jack Boterenbrood 	(Boterenbrood), 	reviewed several
programs 	in use at other 	schools 	in hopes 	of 	finding ways 	to
offer additional 	support to 	students 	in his 	school. 	One 	of 	the
programs 	which he 	implemented was 	a 	joint 	effort between the
District and Moffett Field Naval Air Station 	(Moffett Field).
A 	significant 	number 	of 	dependents 	of 	military personnel 	from
Moffett 	Field attend 	schools 	in the District. 	Crittenden has
been 	"adopted" 	under 	an Adopt-A-School 	program between various
military units 	and 	school districts.
The program 	established 	to 	utilize 	the 	Moffett 	Field
cooperation was 	called the Homework Club 	(Club). 	The Club was
scheduled 	to be 	open 	from 	2:30 	to 	3:30 	p.m., 	Monday through
Thursday. 	It operated on a walk-in basis, 	so that any 	student
w

who 	desired 	to 	attend could 	receive 	homework assistance 	from the
Moffett 	Field volunteers.
1 .	
Testimony revealed that 	a 	copy of 	the 	Daily Bulletin 	a
school 	newsletter, 	announced that 	the Club would begin operation
on Monday, 	November 28, 	1988. 	It further indicated that the Club
would be 	led by 	a 	certificated 	teacher.
Prior to the 	initiation of the Club, 	in early October 	1988,
Boterenbrood 	spoke to Sasaki, 	who holds 	a teaching certificate,
about the possibility of 	starting the Club. 	He 	specifically
asked her 	if 	she would be 	interested 	in 	supervising the Club,
and, 	at this time, 	she informed him that 	she had worked in a
tutorial 	setting and 	explained the operation of 	the Center. 	She
requested time 	to 	consider this 	offer and, 	approximately 	one week
later, 	notified Boterenbrood of 	her 	interest 	in participating 	in
the 	new program.
The program began operation on November 28, 	1988. 	On the
first day of 	the program, 	Boterenbrood posted a 	job 	announcement
for 	the position of Club 	leader. 	This 	description did not
mention 	a 	requirement that 	applicants 	had to be 	certificated.
Boterenbrood 	stated 	that 	no 	one 	formally 	applied 	for 	this
position.
The 	program was 	initially 	supervised by 	either 	Boterenbrood
or his 	assistant principal. 	However, 	the program is 	currently
managed by Charles David Adams 	(Adams), 	a naval employee. 	Adams
recruits 	potential 	volunteers 	at 	Moffett 	Field 	and 	schedules
their work times. 	Notably, 	both Boterenbrood and the assistant
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principal 	frequently check in at the Club to ensure 	that 	it 	is
running 	smoothly.
The 	Club differed 	from the 	earlier Center 	in 	that 	no
students were referred by teachers. 	The Club volunteers 	did
not provide 	the 	same 	level 	of 	educational 	support provided to
the 	students who had been referred by teachers 	to 	the Center.
However, 	the assistance given to Club 	students was 	identical 	to
that provided 	to drop-in 	students 	at 	the 	Center during 	the 	hours
before 	and 	after 	school 	and during 	lunch breaks.
The District argues that a March 3, 	1982 memo, 	referred
to 	as 	the 	"Drotman memo,"2 along with the Center aide's 	job
description, 	is 	evidence that the Center aides performed duties
clearly different, 	in both character and 	scope, 	from those
performed by Club volunteers. 	However, 	the testimony of Aiello
and Sasaki 	reveals 	that, 	while drop-in students 	at the Center may
have been eligible 	for additional 	services, 	none of 	them actually
received 	anything different 	than that 	received by 	students 	at 	the
Club. 	This 	testimony went unrefuted by the District.
The California School Employees Association 	(CSEA) 	first
learned about the Club when Aiello, 	CSEA chapter president, 	saw
the November 23, 	1988 announcement that the Club would begin
operation the 	following Monday.
2The 	Drotman memo was 	a 	memo prepared by Aiello 	and 	Sasaki
for Gilda Drotman, 	special programs 	coordinator for the District.
The memo, 	in part, 	listed the 	services being provided to
scheduled 	and 	nonscheduled 	students.
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Aiello, 	along with Sasaki, 	the other former Center aide, 	met
with 	Boterenbrood 	and 	expressed 	their 	concern 	that 	volunteers
from Moffett 	Field were 	going 	to 	be performing work which
had 	previously been performed by 	classified 	employees 	of 	the
District. 	Aiello 	and Sasaki 	presented Boterenbrood with 	further
information about the original 	Center at 	this 	time.
Aiello 	argued 	that 	California 	Education Code 	section 	350213
Education Code 	section 	35021 	provides:
Notwithstanding 	any 	other provisions 	of 	law,
any person 	may be permitted 	by 	the 	governing
board 	of 	any 	school 	district 	to perform the
duties 	specified 	in Section 44814 	or 44815,
or to 	serve as 	a nonteaching volunteer aide
under 	the 	immediate 	supervision 	and direction
of 	the 	certificated personnel 	of 	the district
to 	perform noninstructional 	work which 	serves
to 	assist 	such 	certificated personnel 	in
performance 	of 	teaching 	and 	administrative
responsibilities. 	Such a nonteaching
volunteer aide 	shall 	not be 	an employee 	of
the 	school 	district and 	shall 	serve without
compensation of 	any 	type 	or 	other benefits
accorded to employees 	of the district, 	except
as 	provided 	in Section 	35212 	of 	the 	Education
Code 	and Section 	3364.5 	of 	the 	Labor Code.
No district may 	abolish any of 	its 	classified
positions 	and utilize volunteer aides, 	as
authorized herein, 	in lieu of 	classified
employees who are 	laid off as 	a result of 	the
abolition of a position; 	nor may a district
refuse 	to 	employ a person 	in a 	vacant
classified position 	and 	use 	volunteer 	aides
in lieu thereof.
It 	is 	the 	intent of 	the Legislature 	to permit
school districts 	to use volunteer aides 	to
enhance 	its 	educational program but 	not 	to
permit 	displacement 	of 	classified 	employees
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prevented 	the 	District 	from using volunteers 	to 	staff 	the 	Club.
After reviewing 	the 	information provided by Aiello, 	Boterenbrood
rejected CSEA's 	claims 	that the use of volunteers 	in the Club
constituted a violation of 	the 	Education Code.
The 	District 	has 	a 	noncontract 	grievance procedure wherein
grievances 	are allowed over violations 	of policy, 	administrative
regulation, 	title IX, 	or affirmative action issues. 	On
December 	16, 	1988, 	CSEA filed a noncontract grievance protesting
the 	use 	of volunteers 	in the Club based 	on the 	alleged violation
of 	Education Code 	section 	35021. 	That grievance was 	rejected by
Boterenbrood on January 	5, 	1989. 	CSEA appealed Boterenbrood's
decision to 	the 	superintendent of 	the District, 	Tim Cuneo
(Cuneo). 	Aiello and Cuneo met on February 28, 	1989. 	At that
meeting, 	Cuneo explained that he 	felt the work of volunteers 	in
the Club was 	completely different 	from that of 	the 	aides 	in the
old Center program and, 	therefore, 	not a violation of the
Education Code.
On March 20, 	Mike Maloney 	(Maloney), 	CSEA field
representative, 	wrote to the District claiming the District
had unilaterally 	transferred work out 	of 	the bargaining unit 	to
volunteers 	from Moffett 	Field. 	Maloney 	further 	claimed 	that 	the
District 	had 	an obligation to 	bargain with 	CSEA prior 	to 	taking
such action. 	Maloney demanded that the District 	stop the Club
program 	and 	negotiate with 	CSEA.
nor to 	allow districts 	to utilize volunteers
in lieu of 	normal 	employee requirements.
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On April 	4, 	the 	attorney 	for the 	District responded that 	the
District would 	not 	stop 	the 	Club 	and would 	not 	bargain over 	the
District's 	decision to use volunteers 	from Moffett 	Field. 	The
District did, 	however, 	offer to negotiate with CSEA over the
effects 	of 	its decision, 	if CSEA could identify any 	such effects.
PROPOSED 	DECISION
CSEA contends 	that 	the 	District's 	action constituted 	a
unilateral 	transfer of work out of 	the bargaining unit and, 	thus,
a 	failure to bargain in good 	faith. 	Alternatively, 	CSEA argues
that 	the 	action was 	unlawful 	subcontracting.
The District, 	on the other hand, 	states that the work
performed at the Club is 	not the 	same as 	that previously
performed by the unit members; 	thus, 	its 	implementation of the
Club did not 	impact on any mandatory 	subject of bargaining. 	If
there was 	any obligation to bargain, 	the District argues 	that
CSEA waived 	its 	bargaining rights 	by 	failing 	to 	schedule 	a
negotiating 	session.
The ALJ 	analyzed the 	District's 	action under 	a 	transfer
of work theory, 	based on the 	fact 	the Club was 	created by the
District, 	operated on school grounds, 	and questions 	regarding the
operation of 	the Club were directed to 	the 	assistant principal.
The 	fact 	that 	the volunteers 	were 	not paid 	for their work does
not 	act 	to remove 	this 	situation 	from a 	transfer of work
analysis, 	reasoned the ALJ, 	based on the Board's 	finding in
Roseville Joint 	Union High 	School 	District 	(1986) 	PERB Decision
No. 	580. 	In Roseville, 	the Board reversed a regional attorney's
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dismissal 	of 	a 	complaint which 	found 	that 	the 	Roseville
district's 	use 	of 	nonpaid 	labor did 	not 	constitute 	a 	unilateral
transfer of work based on the 	fact 	that 	the volunteers were 	not
employees.
Next, 	the ALJ addressed these 	facts 	under the Board's 	test
for 	transfer of work 	cases 	as 	enunciated 	in Eureka 	City 	School
District 	(1985) 	PERB Decision No. 	481 	(Eureka). 	The ALJ stated
that 	there 	are 	two ways 	under this 	test 	to 	show a unilateral
transfer of work out of the unit: 	(1) 	if unit employees 	ceased
to perform work which they had previously performed, 	or 	(2) 	if
nonunit 	employees 	began to perform work previously performed
exclusively by unit members. 	The ALJ 	states, 	in his proposed
decision:
. 	. 	. 	CSEA will prevail if it can show, 	in
the case at hand, 	that while the 	same work
is 	still being done, 	bargaining unit members
ceased 	to perform duties 	which 	they had
previously 	performed.
(P. 	9.)
The ALJ 	then rejected 	the 	District's 	arguments 	that 	the
work done 	in the Club is 	different 	from what was 	done 	in the
Center. 	The ALJ 	relied 	on Lincoln Unified 	School 	District 	(1984)
PERB Decision No. 	465 	(Lincoln). 	for the proposition that an
employer may 	not 	avoid 	a unilateral 	transfer of work violation
simply by 	limiting 	the 	transferred duties 	to 	only 	one 	or two
tasks 	among 	several assigned duties. 	Thus, 	even though many
more 	services were available 	in the Center, 	at a minimum, 	the
unit members 	performed the 	same duties 	being done 	in the 	Club
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by the volunteers.
Next, 	the gap 	in time between the closure of the Center
and the 	initiation of 	the Club was 	addressed by the ALJ. 	The
proposed 	decision distinguished 	Fremont 	Union 	High 	School
District 	(1987) 	PERB Decision No. 	651 	(Fremont) 	based on the
fact that, 	in that case, 	the closure of a 	summer school program
was 	followed 	four years 	later by the 	transfer of 	the program to
an outside entity. 	Here, 	states 	the ALJ, 	the District retained
control 	of 	the Club and, 	in effect, 	reinstated a portion of the
Center.
The 	District's waiver 	argument was 	also 	rejected by 	the ALJ.
This 	rejection is based on CSEA's March 20, 	1989 	general demand
that 	the 	District 	cease 	operation of 	the 	Club and negotiate.
Lastly, 	concluded the ALJ, 	the District's 	offer to negotiate on
the 	effects 	of 	the Club, 	if CSEA could enunciate any effects,
does 	not 	absolve 	it 	of 	its 	duty to 	negotiate over the decision
itself.
Thus, 	the ALJ determined 	that the District violated 	EERA
section 	3543.5(b) 	and 	(c) 	through its act of transferring duties
from the unit members 	to volunteers.
ANALYSIS
The 	District 	generally 	excepts 	to 	the ALJ's 	characterization
of 	the nature of the 	services provided at the Center. 	If, 	argues
the District, 	services provided 	in the Club are different than
those provided 	in the Center, 	no unilateral 	transfer of work or
subcontracting was possible. 	Aiello 	testified that 	the 	general
10
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practice 	at the Center regarding unscheduled, 	drop-in 	students
was 	to provide assistance 	on their assignments, 	when requested by
students. 	She also 	stated that the work being done 	in the Club
was 	the 	same work as 	that performed 	at the Center 	for drop-in
students. 	Furthermore, 	Sasaki noted that, 	with few exceptions,
homework assistance was 	the 	major 	service provided 	to 	unscheduled
students 	at the Center.
Although 	the 	above 	testimony went unrefuted, 	the 	District
argues 	that the Drotman memo, 	as well as 	the 	job description of
the tutorial 	center aide, 	requires 	the 	finding that the 	services
provided 	in the Center were 	of 	a different 	nature than those 	of
the Club. 	However, 	both the memo and the 	job description list
homework 	organization and/or 	assistance 	among provided 	services.
This 	fact, 	coupled with the ALJ's 	finding that the testimony of
both Aiello and Sasaki was 	credible, 	supports 	the 	conclusion
that 	drop-in 	students 	actually received 	services 	which were 	very
similar to the 	services provided at the Club. 	However	4 	, 	it 	is
undisputed 	that 	the 	services 	provided to 	scheduled 	students 	at
the 	Center were 	much more 	comprehensive 	than 	services 	available
at the Club.
As 	to the ALJ's 	conclusions 	of 	law, 	the District argues
principally 	that 	the 	Eureka 	test was 	misstated 	and misapplied.
4As 	there 	is 	no 	evidence 	in the record which 	supports
overturning 	the 	credibility determinations 	referenced 	above,
the Board will defer to the ALJ's 	findings 	in this 	regard.
(Los Angeles 	Unified School 	District 	(1988) 	PERB Decision
No. 	659.)
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Initially, 	the nature of 	the 	conduct by the District must be
correctly 	characterized 	as 	a 	form of 	transfer of work or
subcontracting, 	as 	these two forms 	of unilateral acts have been
analyzed 	differently by the 	Board. 	(Beverly 	Hills 	Unified 	School
District 	(1990) 	PERB Decision No. 	789 	(Beverly Hills). 	p. 	18.)
For purposes 	of 	the discussion herein, 	contracting out
refers 	to 	a 	transfer of unit work to 	those 	not 	in the 	employ
of 	the 	employer in question. 	(San Diego Adult Educators 	v.
Public 	Employment Relations 	Board 	(1990) 	223 	Cal.App.3d 	1124,
review den. 	Dec. 	13, 	1990, 	(San Diego II) 	p. 	1133;. Beverly
Hillsf p. 	17, 	fn. 	8.) 	On the other hand, 	transfer of work
involves 	a 	transfer of unit work to 	nonunit 	employees 	of 	the 	same
employer. 	(San Diego II. 	p. 	1133, 	fn. 	5.) 	The ALJ analyzed the
Club under a 	transfer of work theory, 	although acknowledging 	that
the 	facts 	did not 	"fit 	neatly" 	into 	either a transfer of work or
subcontracting model. 	The ALJ's 	choice of this model was 	based
primarily 	on the 	nature 	of 	the 	relationship 	the 	Club 	retained
with the District, 	as 	evidenced by the origination of the Club
concept by the principal, 	and the management and control 	of 	the
Club by 	the 	District.
Other 	factors 	in addition to those 	enunciated by 	the ALJ
are 	important 	in the proper characterization of 	this 	program.
Primarily, 	of 	course, 	the volunteers of the Club are neither
nonunit 	employees 	of the 	employer, 	nor are they employees 	of
Moffett 	Field 	for purposes 	of 	their volunteer work. 	In 	some
sense, 	however, 	Moffett Field occupies the position of a 	second
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employer 	in that 	its 	agent 	recruits persons 	to volunteer at 	the
Club 	and 	it 	then 	supplies 	the 	"labor" 	by 	sending 	scheduled
volunteers 	to the 	school 	site.
California Education Code 	section 35021 	states, 	in
pertinent part:
[A] 	nonteaching volunteer aide 	shall 	not be
an employee of 	the 	school 	district and 	shall
serve without 	compensation of 	any type 	or
other benefits 	accorded to 	employees 	of 	the
district, 	except as provided in Section 35212
of 	the 	Education Code 	[insurance 	coverage]
and 	Section 	3364.5 	of 	the 	Labor Code
[worker's compensation coverage].
While 	PERB has 	no 	jurisdiction to 	enforce provisions 	of 	the
Education Code, 	it has 	jurisdiction to 	interpret the Education
Code 	as 	necessary to 	carry out 	its 	duty to 	administer EERA.
(San Bernardino City Unified 	School 	District 	(1989) 	PERB 	Decision
No. 	723, 	p. 	2.) 	Where EERA and the Education Code address the
same 	or 	similar 	subjects, 	the Board 	seeks 	a resolution which
harmonizes 	the 	legislative 	intent 	underlying the 	EERA with
existing provisions 	of the Education Code. 	(San Bernardino.
supra.) 	A 	long-standing 	rule 	of 	statutory 	construction 	states
that 	the 	expression of 	certain things 	in a 	statute 	necessarily
involves 	the 	exclusion of 	other things 	not 	expressed. 	(People v.
Brun 	(1989) 	212 Cal.App.3d 951, 	954; 	see also Interinsurance
Exchange v. 	Spectrum Investment Corp. 	(1989) 	209 Cal.App.3d 	1243,
1255, 	review den. 	July 27, 	1989.) 	Therefore, 	because section
35021 	expresses 	a 	legislative 	intent 	to 	limit 	those 	circumstances
wherein a volunteer aide will 	be 	found to be an employee 	of 	the
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District 	and because 	of 	the other 	factors 	present 	in this 	case,
the 	Board 	finds 	that a 	subcontracting 	analysis 	is 	to be utilized
under these 	facts.5 Lincoln does 	not preclude this 	finding, 	for
although 	the 	case referred to the use of 	volunteer members 	of 	the
Band Boosters 	Club 	to drive buses 	on certain field trips 	as 	a
transfer of work, 	the ALJ's 	opinion, 	specifically adopted by the
Board, 	analyzes 	the 	facts of the case under the test enunciated
in Oakland Unified School 	District 	(1983) 	PERB Decision No. 	367
applicable 	to 	subcontracting 	situations. 	(See 	also 	Unit
Determination 	for the 	State of California 	(1980) 	PERB 	Decision
No. 	ll0c-S, 	foster grandparents who receive 	only tax-free 	stipend
for work are 	akin to volunteers 	and 	are 	not 	employees 	under 	the
Ralph C. 	Dills Act 	(Dills Act).6)
In San Diego 	II, 	the Court of Appeal reviewed a decision
of 	the 	Board 	(San Diego Community College 	District 	(1988) 	PERB
Decision No. 	662 	(San Diego I)). 	wherein the Board determined
5Justice 	Stewart's 	concurring 	opinion 	in Fibreboard 	Paper
Products 	Corporation v. 	National 	Labor Relations 	Board 	(1964)
379 U.S. 	203 	is 	instructive, 	as it sets out the following
definition of 	subcontracting:
. 	. 	. 	substitution of one group of workers
for another to perform the 	same 	task 	in the
same 	[location] 	under the ultimate control
of the same employer. 	. 	. 	.
(Id. 	at p. 	224.)
In Fremont, 	the Board applied this 	definition to 	conclude 	that,
because 	the 	district did 	not 	retain ultimate 	control 	over 	a
summer 	school 	program run by the 	University 	of 	La Verne 	on the
district's premises, 	no 	subcontracting occurred.
6The 	Dills Act was 	formerly known as 	the State 	Employer-
Employee Relations Act.
14

that 	the 	San Diego Community College 	District 	(College 	District)
violated EERA 	section 	3543.5(c) 	when 	it 	contracted with 	an
independent 	foundation 	to 	provide 	language 	instruction on
its 	campus 	without 	first 	bargaining with 	the 	San Diego Adult
Educators, Local 4289 (Union).
The 	College 	District had offered noncredit, 	fee-based
language courses 	in French, 	Spanish and German 	(major languages);
and 	in Farsi, 	Swedish and Tagalog 	(minor 	languages) 	prior to
March 	1983. 	The major 	language 	courses were taught by tenured
instructors who were paid on a monthly basis. 	In contrast, 	minor
language 	courses were 	taught 	by 	instructors who were paid 	on an
hourly basis. 	On March 	9, 	1983, 	the College District decided to
discontinue 	its 	offering of 	the major 	language 	classes. 	The
reason 	for this 	decision was 	purely 	economic; 	fees which were
paid by 	students 	in these 	classes 	did not 	cover the 	cost 	of 	the
instructors' 	salaries. 	Teachers of these 	subjects were advised
of 	the 	termination of their employment.
Subsequent to this 	decision, 	members 	of the public pressured
the 	College 	District 	to 	reinstate 	the major 	language 	classes.
After 	reviewing 	several 	options 	proposed 	to 	accomplish 	this
objective, 	the College District entered into a contract 	in June
1983 	with 	the 	San Diego Community College 	Foundation 	(Foundation)
to provide the major language 	classes. 	The Foundation 	is 	a
nonprofit 	corporation 	established 	to 	assist 	the 	College 	District
in 	its 	educational 	endeavors; 	it was 	found by the Board to be an
15

entity 	separate 	and 	apart 	from the 	College 	District 	and 	this
finding was 	not disputed on appeal.7
The 	Union 	filed 	an unfair practice 	charge 	against 	the
College 	District wherein 	it 	contended 	that 	the 	College 	District
violated 	EERA 	section 3543.5(c) 	by 	failing to 	negotiate 	in good
faith prior 	to 	contracting with 	the 	Foundation to perform work
which had previously been performed by 	its 	members. 	The 	Board
determined that, 	although the College District had the 	right
to 	discontinue 	the 	major 	language 	classes 	(Stanislaus 	County
Department of Education 	(1985) 	PERB Decision No. 	556), 	its
conduct 	in 	contracting with 	the 	Foundation 	constituted 	a
unilateral 	change 	in the 	form of 	subcontracting. 	The majority
stated:
By contracting with the Foundation, 	the
District 	continued to offer this 	service,
albeit 	by using 	instructors 	supplied 	by 	the
Foundation. 	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
7 At 	the time of 	the discontinuance of 	the major 	languages,
the 	College 	District 	intended 	to 	continue 	to 	offer the 	minor
languages, 	primarily because 	fees paid by 	students 	in these
subjects 	covered the costs 	of the 	instructors' 	wages. 	After the
announcement 	of 	the 	assumption by the Foundation of 	the major
language 	classes, 	members 	of 	the public 	exerted pressure on the
College 	District 	to 	transfer 	the 	minor 	language 	classes 	to 	the
Foundation as well. 	Consequently, 	the College District made the
decision 	to 	transfer 	these 	classes 	to 	the 	Foundation and 	entered
into a 	contract with the Foundation for this purpose. 	Minor
language 	instructors' 	employment was 	also 	terminated by the
College District. 	The Union contended that this 	conduct violated
EERA 	section 	3543.5(c) 	because 	the College District 	failed 	to
bargain 	in good 	faith prior to 	implementing this 	decision. 	The
Board 	found 	a violation of 	EERA based on this 	conduct, 	and 	this
finding was 	affirmed by the Court of Appeal. 	(San Diego 	II.
p. 	1135.)
16
7

- -
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 that 	it
wished to 	continue 	to 	offer certain classes,
despite 	its 	earlier position that 	it was
discontinuing those services. 	. 	. 	.
(San Diego I, pp. 	14-15; 	fn. 	omitted.)
Member 	Porter dissented 	from 	the 	result 	reached 	by 	the
majority 	in San Diego 	I. 	He 	reasoned that the College 	District
could 	lawfully discontinue 	the 	language 	classes, 	and that 	merely
by arranging 	for the Foundation to offer the classes, 	without
paying the Foundation to do 	so, 	the College District did not
unilaterally 	subcontract 	the work to 	the 	Foundation.
The Court of Appeal, 	in San Diego II. 	rejected the
result 	reached by 	the majority 	of 	the 	Board 	in regard 	to 	the
discontinuance of 	the major 	language 	classes. 	Emphasizing that
the 	most 	important 	factor 	in determining whether 	an 	employer's
decision to 	have work performed by 	outside workers 	rather 	than
regular 	employees 	is 	the 	impact of 	the 	subcontracting on the
regular employees, 	the 	court determined that the decision to
discontinue 	the 	classes 	and 	the 	decision to 	contract with 	the
Foundation were separate decisions, 	and that, 	as 	such, 	the later
decision 	to 	contract with 	the 	Foundation had no 	adverse 	effect
on the unit members. 	As 	stated in the opinion:
Absent 	some 	showing 	that 	union members
were 	terminated because 	of 	the 	decision to
contract out their jobs, 	we decline to hold
that the decision to 	contract out was 	a
subject 	of 	mandatory 	negotiation.
(San Diego II. p. 	1134.)
17

In reaching this conclusion, 	the court cited, 	with approval,
Member 	Porter's 	dissenting opinion 	in San Diego 	If 	as well 	as
Fremont. 	The only difference between the 	factual 	situation 	in
the San Diego cases 	and Fremont. 	reasoned the court, 	was 	one of
time. 	While there was 	no 	connection in either case between the
termination of 	the 	respective programs 	and the 	later renewal 	of
similar programs, 	in Fremont the termination and the renewal 	of
the program were 	separated by a 	four-year period. 	In
San Diego 	II. 	the 	court concluded that the amount 	of 	time
expiring between the 	two decisions was 	not 	consequential 	to
the analysis.
The 	analysis 	employed by the Court 	of Appeal 	in San Diego 	II
is 	equally applicable 	in the present case. 	In addressing this
case, 	the court in San Diego II 	commented:
We 	recognize 	that 	two 	recent 	PERB 	decisions
addressing analogous 	situations, 	Whisman
Elementary School District 	(Apr. 	20, 	1990)
PERB Decision No. 	. 	. 	. and Beverly Hills
Unified School District 	(Jan. 	19, 	1990) 	PERB
Decision No. 	789 	. 	. 	., reached conclusions
which may 	appear 	contrary 	to 	the 	conclusions
reached herein. 	However, 	Whisman is
distinguishable 	because 	the 	administrative
law 	judge 	there 	took great pains 	to 	contrast
its 	facts 	from Fremont 	Union High 	School
District, 	supra, 	PERB Decision No. 	651,
pointing out 	(1) 	the Fremont program was
terminated without 	any 	intent to 	ever 	resume
the program and 	(2) 	the 	lack of 	connection
between the 	school 	district 	and 	the 	outside
entity which ran the 	new program.
(San Diego II. p. 	1135, 	fn. 	7.)
The Board 	finds 	that this 	case 	is 	not as 	factually
distinguishable 	from Fremont 	as 	was 	stated by 	the ALJ 	in 	the
18

- -
proposed decision. 	First, 	as discussed below, 	here, 	as in
Fremont, 	the District had no 	intention of 	resuming the Center
at 	its 	termination in 	1982. 	Second, 	the connection between the
school 	district 	and 	the 	entity running the program 	in Fremont
is 	not dissimilar from the present 	situation in that, 	here,
an outside 	entity 	coordinates 	the Club and 	supplies 	all 	labor
utilized therein. 	Third, 	as was 	noted by Member Porter 	in
Fremont, 	as well as 	in his dissent 	in San Diego 	I. 	the District
herein 	sought 	out 	the 	labor 	for the program, 	but did not pay
Moffett Field to offer the Club. 	Finally, 	although there are
some 	indicia of 	control by the District 	over the Club, 	this
control 	does 	not rise to the 	level 	of ultimate control.
(San Diego I. p. 	32; 	see also Fremont. p. 	19; 	and fn. 	5 herein.)
The 	District 	lawfully 	discontinued 	the 	Tutorial 	Center
in 	1982. 	Public 	school 	employers 	maintain the managerial
prerogative 	to 	determine what 	curriculum and programs 	will 	be
offered within their 	facilities. 	(Stanislaus 	County 	Department
of Education, 	supra, 	PERB Decision No. 	556.) 	As in San Diego II.
the 	District here had no 	intention of 	reinstating this 	type 	of
after 	school program at 	that point 	in 	1982 when it 	terminated the
program 	and 	laid off 	the personnel 	associated with 	it. 	Some 	six
years 	later, 	at the direction of Boterenbrood, 	the District made
the 	decision to 	institute the 	Homework Club. 	This 	decision had
no 	effect on the unit employees, 	as 	at the time the Club was
formed the unit members 	were not performing the work of 	the Club.
Additionally, 	although the court 	in San Diego 	II 	suggested that
19

the 	amount of 	time 	elapsing between a decision to 	terminate 	a
program 	and 	the decision to 	create 	a 	new 	similar program 	is 	not
determinative, 	the 	fact that approximately 	six years 	elapsed
between 	the 	two 	actions 	strongly 	supports 	the 	lack of 	connection
between the two decisions. 	After termination of the Center, 	and
for 	six 	years 	afterward, 	the past practice 	regarding homework
assistance work was 	that 	it was 	not performed within the
District.8 Therefore, 	because this 	Board 	is 	bound by the
pronouncement of the 	appellate court 	in San Diego 	II. 	when the
Club was 	formed 	the 	District 	did 	not 	unilaterally 	subcontract
unit work in violation of EERA section 3543.5(b) 	and 	(c).
(See 	Bodinson Manufacturing Company v. 	California 	Employment
Commission 	(1941) 	17 Cal.2d 321, 	326.) 	In view of our
disposition of this 	case, 	we decline 	to address 	the District's
remaining 	exceptions.
The unfair practice charge 	in Case No. 	SF-CE-1316 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Shank and Carlyle 	joined 	in this 	Decision.
8 CSEA argues, 	for the first time on appeal, 	that Article 	16
of 	the parties' 	collective bargaining agreement prevents 	the
action taken by the District. 	Because this 	matter was 	not
addressed by the parties 	before 	the ALJ, 	the Board will 	not
address 	it herein. 	(State of California 	(Department of
Transportation) 	(1983) 	PERB Decision No. 	361-S.)
20
8