San Francisco Unified School District * * * PARTIALLY OVERRULED by Downey Unified School District (2026) PERB Decision No. 3018 * * * (PERB 2000E)

V.
DISTRICT,
STATE OF CALIFORNIA
DECISION OF THE	OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JAMES HSIONG,
Charging Party,
V .
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. SF-CE-2661-E
PERB Decision No. 	2000
January 20, 2009
Appearances: 	James Hsiang, on his own behalf; Fagen, Friedman & Fulfrost by Elizabeth B.
Mori, Attorney, for San Francisco Unified School District.
Before Neuwald, Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by James Hsiang (Hsiang) of a Board agent's dismissal of his
unfair practice charge. The charge alleged that the San Francisco Unified School District
(District) violated the Educational Employment Relations Act (EERA) 1 by refusing to apply
retroactive salary increases to Hsiang and other former employees of the District.
After reviewing the entire record, including the unfair practice charge, the Board
agent's warning and dismissal letters, Hsiang' s appeal and the District's response, the Board
affirms the dismissal of the unfair practice charge in accordance with the following discussion.
1EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all
statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION
PUBLIC EMPLOYMENT RELATIONS BOARD
JAMES HSIONG,
Charging Party, 	Case No. SF-CE-2661-E
PERB Decision No. 2000
January 20, 2009	SAN FRANCISCO UNIFIED SCHOOL
Respondent.
Appearances: James Hsiong, on his own behalf; Fagen, Friedman & Fulfrost by Elizabeth B.
Mori, Attorney, for San Francisco Unified School District.
Before Neuwald, Chair; Mckeag and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
PERB or Board) on appeal by James Hsiong (Hsiong) of a Board agent's dismissal of his
unfair practice charge. The charge alleged that the San Francisco Unified School District
(District) violated the Educational Employment Relations Act (EERA)' by refusing to apply
retroactive salary increases to Hsiong and other former employees of the District.
After reviewing the entire record, including the unfair practice charge, the Board
agent's warning and dismissal letters, Hsiong's appeal and the District's response, the Board
affirms the dismissal of the unfair practice charge in accordance with the following discussion.
EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all
statutory references herein are to the Government Code.
* * * PARTIALLY OVERRULED by Downey Unified School District (2026) PERB Decision No. 3018 * * *

BACKGROUND
Hsiong is one of a small group of former employees of the District who were laid off in
June 2005. From approximately 2001 through the layoff in 2005, these employees were
members of the bargaining unit exclusively represented by the International Federation of
Professional and Technical Engineers Local 21 (IFPTE).
Between 2001 and April 2007, employees represented by IFPTE were working without
a collective bargaining agreement, and did not receive salary increases. However, in
April 2007, IFPTE and the District reached an agreement which provided for retroactive salary
increases for eligible employees. The agreement was titled, and reads in relevant part:
'IFPTE Local 21/SFUSD Tentative Agreement
April 26, 2007', ...
The San Francisco Unified School District [(District)] and the
International Federation of Professional and
Engineers, Local 21 [(IFPTE)] agree to the following salary
increases as delineated below:
Technical
The 2000-2001 salary schedules shall be increased by 3%
effective July 1, 2001.
The 2001-2002 salary schedules shall be increased by 2.5%
effective July 1, 2002[.]
The 2006-2007 salary schedules shall be increased by 2%
effective July 1, 2006[.]
The 2006-2007 salary schedules shall be further increased by
9.5% effective May 2, 2007[.]
The agreement did not contain specific language addressing application of the
retroactive pay provisions to individuals who were no longer employed by the District at the
time of the agreement. However, the District applied the retroactive increase to employees
who had worked during the relevant time period, but were retired or deceased as of April 2007.
Hsiang and others who were laid off in June 2005, were informed by the District in or
after April 2007, that they were not eligible for the retroactive pay increase. After making
2
BACKGROUND
Hsiong is one of a small group of former employees of the District who were laid off in
June 2005. From approximately 2001 through the layoff in 2005, these employees were
members of the bargaining unit exclusively represented by the International Federation of
Professional and Technical Engineers Local 21 (IFPTE).
Between 2001 and April 2007, employees represented by IFPTE were working without
a collective bargaining agreement, and did not receive salary increases. However, in
April 2007, IFPTE and the District reached an agreement which provided for retroactive salary
increases for eligible employees. The agreement was titled, and reads in relevant part:
IFPTE Local 21/SFUSD Tentative Agreement
April 26, 2007', . . .
The San Francisco Unified School District [(District)] and the
International Federation of Professional and Technical
Engineers, Local 21 [(IFPTE)] agree to the following salary
increases as delineated below:
The 2000-2001 salary schedules shall be increased by 3%
effective July 1, 2001.
The 2001-2002 salary schedules shall be increased by 2.5%
effective July 1, 2002[.]
The 2006-2007 salary schedules shall be increased by 2%
effective July 1, 2006[.]
The 2006-2007 salary schedules shall be further increased by
9.5% effective May 2, 2007[.]
The agreement did not contain specific language addressing application of the
retroactive pay provisions to individuals who were no longer employed by the District at the
time of the agreement. However, the District applied the retroactive increase to employees
who had worked during the relevant time period, but were retired or deceased as of April 2007.
Hsiong and others who were laid off in June 2005, were informed by the District in or
after April 2007, that they were not eligible for the retroactive pay increase. After making
N

several unsuccessful pleas to the District to apply the retroactive salary increase to the group of
previously laid off employees, Hsiong filed this unfair practice charge.
DISCUSSION
The Board agent determined that Hsiong did not have standing to file the charge
because as of June 2005 he was no longer an employee covered by EERA. Notwithstanding
the lack of standing, the Board agent also analyzed the charge under unilateral change and
discrimination theories, finding that Hsiong did not have standing to allege the District
unilaterally changed policy, and that he did not establish a prima facie case of discrimination.
EERA section 3541.5(a) states, in relevant part:
Any employee, employee organization, or employer shall have	Any employee, employee organization, or employer shall have
the right to file an unfair practice charge ...
A public school employee is defined under EERA section 3540.1 G) as:
[A]ny 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.
In order to have standing to file an unfair practice charge under EERA, a charging party
must have been an employee, employee organization, or employer at the time of the alleged
unfair practice.2 (Monterey Peninsula Community College District (2002) PERB Decision
No. 1492; California Union of Safety Employees (Trevisanut, et al.) (1993) PERB Decision
No. 1029-S.)
In this case, Hsiong's employment with the District ended in June 2005. The District's
alleged unlawful conduct occurred in or after April 2007 when the District refused to give
Hsiong and other previously laid off employees retroactive salary increases for the period of
time they worked prior to June 2005. It is clear that Hsiong was not an employee of the
2Applicants for employment also have certain rights under EERA section 3543.5(a).
3
several unsuccessful pleas to the District to apply the retroactive salary increase to the group of
previously laid off employees, Hsiong filed this unfair practice charge.
DISCUSSION
The Board agent determined that Hsiong did not have standing to file the charge
because as of June 2005 he was no longer an employee covered by EERA. Notwithstanding
the lack of standing, the Board agent also analyzed the charge under unilateral change and
discrimination theories, finding that Hsiong did not have standing to allege the District
unilaterally changed policy, and that he did not establish a prima facie case of discrimination.
EERA section 3541.5(a) states, in relevant part:
the right to file an unfair practice charge . . .
A public school employee is defined under EERA section 3540.1(j) as:
[A ]ny 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.
In order to have standing to file an unfair practice charge under EERA, a charging party
must have been an employee, employee organization, or employer at the time of the alleged
unfair practice. (Monterey Peninsula Community College District (2002) PERB Decision
No. 1492; California Union of Safety Employees (Trevisanut, et al.) (1993) PERB Decision
No. 1029-S.)
In this case, Hsiong's employment with the District ended in June 2005. The District's
alleged unlawful conduct occurred in or after April 2007 when the District refused to give
Hsiong and other previously laid off employees retroactive salary increases for the period of
time they worked prior to June 2005. It is clear that Hsiong was not an employee of the
Applicants for employment also have certain rights under EERA section 3543.5(a).
3

District when the District made this decision in April 2007. Therefore, the Board agent
properly found that Hsiong lacked standing to file an unfair practice charge.3 Accordingly,
PERB is without jurisdiction and the charge is dismissed.
ORDER
The unfair practice charge in Case No. SF-CE-2661-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Neuwald and Member McKeag joined in this Decision
J As Hsiong does not have standing under EERA, it is unnecessary to evaluate the
unilateral change and discrimination theories covered by the Board agent.
4
District when the District made this decision in April 2007. Therefore, the Board agent
properly found that Hsiong lacked standing to file an unfair practice charge." Accordingly,
PERB is without jurisdiction and the charge is dismissed.
ORDER
The unfair practice charge in Case No. SF-CE-2661-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Neuwald and Member Mckeag joined in this Decision
As Hsiong does not have standing under EERA, it is unnecessary to evaluate the
unilateral change and discrimination theories covered by the Board agent.