San Diego Adult Educators v. Public Employment Relations Bd.
| Decision Date | 12 September 1990 |
| Docket Number | D009280,AFL-CI,Nos. D009278,R,P,s. D009278 |
| Citation | 223 Cal.App.3d 1124,273 Cal.Rptr. 53 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 62 Ed. Law Rep. 670 SAN DIEGO ADULT EDUCATORS, LOCAL 4289, AMERICAN FEDERATION OF TEACHERS/CALIFORNIA FEDERATION OF TEACHERS,etitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent. SAN DIEGO COMMUNITY COLLEGE DISTRICT, Real Party in Interest. SAN DIEGO COMMUNITY COLLEGE DISTRICT, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent. SAN DIEGO ADULT EDUCATORS, LOCAL 4289, AMERICAN FEDERATION OF TEACHERS/CALIFORNIA FEDERATION OF TEACHERS,eal Party in Interest. |
James M. Gattey and Gattey & Messersmith, San Diego, for petitioner in D009278 and real party in interest in D009280.
Christine A. Bologna, San Diego, Donn Ginoza, Los Angeles, and Robert G. Thompson, Sacramento, for respondent.
Larry J. Frierson, Sandra Owens Dennison and Liebert, Cassidy and Frierson, Los Angeles, for petitioner in D009280 and real party in interest in D009278.
We review herein a decision of the Public Employment Relations Board (PERB) 1 which adjudicated claims by the San Diego Adult Educators, Local 4289, AFL-CIO (Union) of unfair labor practices against the employer, the San Diego Community College District (College District). The PERB decision, which affirmed the previous proposed decision of the administrative law judge, determined that the College District had engaged in an unfair labor practice by contracting with an independent agency to provide instruction on the college campus without bargaining with the Union. The PERB order contained certain injunctive relief directed toward future negotiating relations of the parties. The order also required that the College District rescind any current contractual arrangement with the independent agency. Respecting affected employees, whose interests were represented by the Union, the PERB order denied back wages or reimbursement for losses as to certain employees, while requiring compensatory benefits be ascertained and awarded to others.
The PERB decision and order resulted in petitions for review from both parties. The Union agrees with the factual and legal conclusions of PERB, but argues that the remedy granted is ineffectual because it does not make all aggrieved employees whole. College District petitions to overturn the basic unfair practice determination, claiming error on several grounds.
We conclude that the PERB decision and determination is sustainable on all grounds except one. We therefore partially affirm and partially reverse the decision.
Prior to 1983 the College District had offered noncredit classes in several languages. Classes in languages, which we will call herein "minor" (Farsi, Swedish, Tagalog), were taught by instructors who were paid on an hourly basis. The more popular languages (French, Spanish, German) were conducted by instructors who were tenured, contracted, and paid on a monthly basis. All the classes in question were offered to the public on a fee basis. All the teachers were part of the bargaining unit represented by the Union.
On March 9, 1983, the College District decided to discontinue its classes in German French and Spanish, and advised teachers of those courses of termination of employment. The reason for discontinuance of these offerings was economic. Because of the higher cost of the certificated teachers conducting the classes the fees collected from students did not cover the College District's expenditures, producing a loss.
Following this decision, the College District began receiving communications and pressure from the public seeking reinstatement of the classes. After public presentations of the issue to the meeting of trustees held May 4, 1983, the trustees directed the chancellor of the College District to investigate the cost of alternatives to restore the foreign language classes. At its May 23 meeting the trustees discussed specific options for renewing the language classes. One option was to induce students to enroll in the regular college-credit language classes. The other alternative involved inducing some other agency to administer and finance the language classes. Other agencies mentioned at the meeting were the Parks and Recreation Department, the YMCA, and the San Diego Community College District Foundation, Inc. (Foundation).
The Foundation is a nonprofit corporation established in the mid-1970s for the purpose of assisting and promoting educational activities in the college district. While it is in many respects an entity closely associated with the College District, it was found by PERB to be a true separate entity and not the alter ego of the College District. This conclusion is not disputed on appeal.
The result of discussions at the May 23 meeting was a request that the chancellor contact the Foundation asking that it offer the language classes. At this time the College District intended to continue its own offerings of the minor languages. In June of 1983 a contract was entered between the Foundation and the College District providing for the class offerings by the Foundation, and a public announcement of the program was made.
Thereafter the trustees received complaints from faculty and students about the special treatment accorded the French, German and Spanish program. At its August 3 meeting these criticisms were referred to the chancellor. Further discussion of the problem at the August 22 meeting resulted in a decision to discontinue all fee-based language classes and include the formerly excluded languages (Farsi, Swedish, Tagalog) in the program contracted to the Foundation. Termination of the instructors in the "minor" languages, therefore, occurred as of August 22, 1983.
On December 21, 1983, Union filed an unfair practice charge claiming that the College District had failed to negotiate with the Union over the transfer of work from the college to the Foundation. The charge was filed with PERB within the six-month period of limitations provided by Government Code section 3541.5, subdivision (a). 2 The charge was not served upon the College District, however, until after expiration of the six-month period. The College District learned of the charge either during or shortly following the expiration of the six-month period, and answered same and participated in administrative proceedings thereafter in due course.
The final result of these procedures was the issuance of the PERB decision and order which is the subject of the cross-petitions for extraordinary review now before us.
The Union's petition does not attack the findings of fact made by PERB. It contends that the factual conclusions mandate a greater remedy than was granted in the PERB order. The College District's petition on the other hand, attacks the PERB decision on several grounds, asserting lack of jurisdiction and insufficiency of the evidence to support conclusions reached. The precise issues for our determination, and the logical order in which we deem it best to address them, are:
1. Did PERB lack jurisdiction to consider the unfair practice claim because of failure to serve the College District within the six-month period prescribed by Government Code section 3541.5, subdivision (a)?
2. Is PERB's conclusion of an unfair practice from the contracting out of the language classes to the Foundation without prior bargaining with the Union sustainable?
3. If the College District's action was an unfair practice, has Union waived its bargaining rights by failing to assert them during the periods of public consideration by the District's trustees?
4. If the PERB conclusions of unfair practice are sustainable, did it err in failing to grant adequate relief to the aggrieved parties?
PERB's findings of factual matters including ultimate facts are, "if supported by substantial evidence on the record considered as a whole, conclusive." (Gov.Code, § 3542, subd. (c).) The concept of affirmance of the trier of facts' conclusions if supported by "substantial evidence" is fortified in cases of review of the determinations of an administrative board because of the presumed expertise of the board. "[T]he relationship of a reviewing court to any agency such as PERB, whose primary responsibility is to determine the scope of the statutory duty to bargain and resolve charges of unfair refusal to bargain, generally is one of deference." (Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1012, 175 Cal.Rptr. 105.)
In terms of construction of the law to be utilized by the administrative agency, determinations made within the agency's area of expertise are also to be accorded deference. Such determinations will be accepted unless they can be found to be "clearly erroneous." (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856, 191 Cal.Rptr. 800, 663 P.2d 523; Los Angeles Unified School Dist. v. Public Employment Relations Bd. (1986) 191 Cal.App.3d 551, 556, 237 Cal.Rptr. 278; Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 619-620, 224 Cal.Rptr. 631, 715 P.2d 590.)
With these rather special rules of review in mind, we proceed to examine the issues.
As noted above, Union filed its charge with PERB within six months of the conduct of College District which was claimed to be an unfair practice, but did not serve the District within that period. Government Code section 3541.5, subdivision (a) precludes PERB from issuing a complaint on an alleged unfair practice occurring "more than six months prior to the filing of the charge." The statute does not define what "filing" requires. Acting in accordance with authority contained in ...
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