San Deigo Adult Educators v. Public Employment Relations Board

Citations: 223 Cal. App. 3d 1124; 273 Cal. Rptr. 53; 1990 Cal. App. LEXIS 972Docket: Docket Nos. D009278, D009280

Court: California Court of Appeal; September 12, 1990; California; State Appellate Court

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The case involves a review of a Public Employment Relations Board (PERB) decision that adjudicated claims of unfair labor practices made by the San Diego Adult Educators, Local 4289, AFL-CIO (Union) against the San Diego Community College District (College District). PERB found that the College District engaged in unfair labor practices by contracting an independent agency to provide instruction on campus without bargaining with the Union. The PERB ordered the College District to rescind the contract and provided injunctive relief to guide future negotiations. 

While the PERB decision denied back wages for some affected employees, it mandated the assessment and awarding of compensatory benefits to others. Both parties filed petitions for review; the Union supported PERB's conclusions but criticized the remedy as insufficient for making all aggrieved employees whole. The College District sought to overturn the unfair practice determination, citing various errors. The court concluded that the PERB decision was sustainable in most respects but reversed one aspect, leading to a partial affirmation and partial reversal of the decision.

Historically, the College District had offered noncredit language classes, taught by hourly-paid instructors for "minor languages" and contracted, tenured instructors for more popular languages. In March 1983, citing economic reasons, the College District discontinued its classes in German, French, and Spanish due to the higher costs associated with certificated instructors, which led to public pressure for their reinstatement. The College District’s trustees subsequently directed an investigation into cost-effective alternatives for restoring these classes.

Inducing another agency to manage and fund language classes was discussed, with potential partners including the Parks and Recreation Department, the YMCA, and the San Diego Community College District Foundation, Inc. (Foundation). Established in the mid-1970s, the Foundation is a separate nonprofit entity from the College District, a determination upheld by PERB. Following discussions on May 23, the College District requested the Foundation to offer language classes while maintaining its own minor language offerings. A contract was established between the Foundation and the College District in June 1983, leading to a public announcement of the program. Complaints arose regarding preferential treatment for certain language programs, prompting a decision on August 22 to discontinue fee-based language classes and include previously excluded languages. Consequently, instructors for minor languages were terminated on that date.

On December 21, 1983, the Union filed an unfair practice charge against the College District, alleging failure to negotiate regarding the transfer of work to the Foundation. Although filed within the statutory six-month period, the charge was not served on the College District until after this period lapsed. The College District became aware of the charge around the expiration date and subsequently participated in administrative proceedings. The resulting PERB decision is now under review.

Key issues for determination include: 1) PERB's jurisdiction concerning the late service of the charge; 2) the sustainability of PERB's unfair practice conclusion regarding the contracting out of language classes without prior negotiation; 3) potential waiver of the Union's bargaining rights due to their inaction during trustee discussions; and 4) whether PERB failed to provide adequate relief if its unfair practice findings are valid. PERB's factual findings are conclusive if supported by substantial evidence, reflecting the board's expertise.

A reviewing court generally shows deference to agencies like PERB, which have the responsibility to interpret statutory duties related to bargaining and unfair practices. Decisions made by such agencies within their expertise are accepted unless clearly erroneous. 

In this case, the Union filed a charge with PERB within six months of an alleged unfair practice by the College District but failed to serve the District within that timeframe. Government Code section 3541.5(a) bars PERB from issuing a complaint for actions occurring more than six months before a charge is filed, but it does not define "filing." PERB's regulations, under Government Code section 3541.3(g), specify that a charge must be in writing, signed under penalty of perjury, and include service proof on the respondent. 

The College District argues that the six-month limitation is jurisdictional and that PERB must adhere to its regulation requiring service as part of "filing." PERB contends that the service requirement is not statutory and is merely directional. It found that the purpose of the service regulation is to protect respondents from stale claims and that no prejudice occurred in this instance, as the College District answered the complaint promptly. 

The court agrees with PERB’s interpretation, noting the statute does not impose a service requirement, suggesting intentional omission. Since the College District demonstrated no prejudice from the late service, and PERB's interpretation of its regulation is not clearly erroneous, the court upholds this position.

Additionally, the unilateral transfer of work from existing employees to subcontractors requires negotiation with the union, constituting an unfair practice. PERB determined that the College District and the Foundation are separate entities, and thus the transfer of work to the Foundation is considered "contracting out," which requires union negotiation.

The College District entered into a contract with the Foundation without consulting or negotiating with the Union. This raises concerns about unfair labor practices if the Foundation's work displaced union members. However, not all managerial decisions that adversely affect employees require negotiation. Citing Justice Stewart's opinion in Fibreboard Corp. v. Labor Board, it is noted that decisions central to management control, such as terminating a bargaining unit's work, do not automatically necessitate collective bargaining, even if they impact job security.

In this case, the College District's decision to terminate noncredit language courses occurred in March 1983, with no intention to reinstate them until public pressure prompted consideration of alternative arrangements in May. There is no evidence that the termination of the courses was made with the expectation of contracting with the Foundation. The critical factor in assessing the legality of subcontracting versus employing regular staff is the impact on those employees. Since the language classes were terminated before the decision to contract with the Foundation, there was no detriment to the former teachers, and thus no requirement for mandatory negotiations regarding the contract.

The conclusion by the Public Employment Relations Board (PERB) that the College District "continued" to offer the language courses is unsupported. The contracting with the Foundation represents a new arrangement rather than a continuation or subcontracting of previously terminated work. The case is compared to Fremont Union High School District, where a similar decision was made, and PERB found no unlawful contracting out. The two-month gap between the termination of the courses and the new arrangement with the Foundation is deemed insignificant in the overall analysis.

The discussion centers on the termination and subsequent reinstatement of "popular" language courses by the Foundation due to cost, contrasting this with the termination of less popular fee-based classes after a contract was made with the Foundation. The decision to terminate classes taught by Union members and transfer them to an outside contractor was a joint decision, leading to an unfair practice finding against the College District. 

The Union's failure to assert its bargaining rights after being notified of proposed employment changes constituted a waiver of those rights. The College District argued that the Union received adequate notice, as its president attended meetings where the contract with the Foundation was discussed. However, the Public Employment Relations Board (PERB) found that the discussions were not specific enough to constitute effective notice, and the first specific contract proposal was presented only on the day it was approved, leaving no opportunity for negotiation.

The court concluded that the issue of effective notice and the timing of communication were factual rather than legal, and it found PERB's conclusions regarding waiver to be plausible, thus deciding not to overturn them. Regarding the remedies provided by PERB, the court determined that PERB erred in finding an unfair practice concerning the original contract with the Foundation, leading to a reversal of those remedies. However, it upheld the finding of unfair practice related to the contracting out of minor language courses. The Union's claims for inadequate remedies, specifically concerning the reinstatement and backpay for terminated employees, were addressed, revealing that no remedy was necessary for employees terminated on March 9, while backpay was awarded for those terminated on August 22.

The PERB order mandates the rescission of any current contracts and the reinstatement of specific employees in future language classes offered by the District, effectively providing adequate remedies for those who established an unfair practice claim. As a result, the Union's petition is denied. The PERB decision is reversed regarding the finding of an unfair labor practice for Union employees terminated on March 9, 1983, while affirming the determination that the College District committed an unfair practice by contracting out minor language courses and terminating certain Union members on August 22, 1983. Cease and desist orders A1 to A3 and affirmative actions B1 to B6 are upheld, excluding remedies for those terminated on March 9, 1983. The agreement with the Foundation concerning major language courses is not deemed an unfair practice, limiting rescission and renegotiation provisions to minor language courses only. Each party will bear its own appeal costs. The Supreme Court declined to review the respondent's petition on December 13, 1990, with dissenting opinions favoring the grant. The notes provide context on PERB's role in managing unfair labor practices and the timeline for filing such complaints.

In *Building Material, Construction Teamsters' Union v. Farrell*, the court addressed the implications of the Foundation being deemed an alter ego of the College District, which would shift the legal focus from an unfair "contracting out" to an unfair "transfer." The Public Employment Relations Board (PERB) found that the District sought alternatives to discontinue language classes after public criticism, opting to contract with the Foundation instead of ceasing the service entirely. This indicated that if the District had truly stopped offering the language instruction, it would not have engaged the Foundation, which could have independently decided to provide the classes.

The excerpt contrasts this situation with two recent PERB decisions—*Whisman Elementary School District* and *Beverly Hills Unified School District*—which may seem contrary. However, *Whisman* is distinguishable because the facts showed a complete termination of the program without intent to resume, and a lack of connection between the school district and the new program provider. In *Beverly Hills*, the district did not justify its actions based on the rationale from *Fremont Union High School District*, instead relying on "waiver" and "consistency with established past practices." Thus, these cases are not seen as controlling precedents in the current matter, and the court rejects their conflicting rationale.