Ventura County Community College District (PERB 1547E)

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

VENTURA COUNTY FEDERATION OF
COLLEGE TEACHERS, LOCAL 1828, AFL-CIO,

Charging Party, Case No. LA-CE-4082-E

Vv. PERB Decision No. 1547

VENTURA COUNTY COMMUNITY COLLEGE September 24, 2003

DISTRICT,

Respondent.

Appearances: Lawrence Rosenzweig, Attorney, for Ventura County Federation of College
Teachers, AFT Local 1828, AFL-CIO; Burke, Williams & Sorensen by Darren C. Kameya and
Jack P. Lipton, Attorneys, for Ventura County Community College District.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Ventura County Federation of College Teachers,
Local 1828, AFL-CIO (Federation) to a proposed decision of an administrative law judge
(ALJ) which found that the Ventura County Community College District (District) did not

violate the Educational Employment Relations Act (EERA) section 3543.5(c) ' by unilaterally

contracting out the instruction of certain courses. After reviewing the record in this case,

‘EERA is codified at Government Code section 3540 et seq. Section 3543.5(c) states,
in pertinent part:

It shall be unlawful for a public school employer to do any of the
following:

including the proposed decision, the Federation's exceptions and the District's response, the
Board reverses the proposed decision
of
the ALJ.
FACTS
The District is a public school employer under EERA. The Federation is an employee
organization under EERA and is the exclusive representative
of
a unit
of
the District's
certificated employees. The collective bargaining agreement (CBA) between the parties
defines the represented unit as the District's "academic employees," which includes the
District's instructors.
For several years, the District has had a Criminal Justice program. The District catalog
states:
The Criminal Justice program is designed to prepare students to
successfully complete the training and testing procedures required to
enter law enforcement and c.orrections academies, or to work within the
private sector. 	[At p. 75.]
In order to receive a certificate
of
achievement in Criminal Justice, a student needed to
complete the following four required courses:
Introduction to Criminal Justice
Concepts
of
Criminal Law
Community Relations
Criminal Procedures
In addition, a student needed to complete three additional courses from a list
of
eighteen,
including the following:
California Penal Code
Criminal Justice Report Writing
Patrol Procedures
Criminal Investigation
Traffic Control and Investigation
( c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
2

In order to receive an associate degree in Criminal Justice, a student also needed to complete
the District's general education requirements and a total
of
at least 60 semester units.
Some courses offered by the Criminal Justice program have been certified by the
Commission on Peace Officer Standards and Training (POST). Most
of
these POST-certified
courses have been designed as continuing professional education for peace officers, and some
have been limited to permanent (non-probationary) peace officers. Until 1999, all
of
the
District's Criminal Justice courses were taught by certificated employees in the unit
represented by the Federation.
For several years, the Ventura County Sheriff (Sheriff), in cooperation with other local
law enforcement agencies, has run a basic law enforcement academy, providing cadets with
entry-level law enforcement training. The academy is POST-certified, and the Sheriff is the
only one in Ventura County certified to provide that training. POST requires that the training
cover several learning domains, including the following:
Criminal Justice System
Community Relations
Property Crimes
Crimes Against Persons
General Crime Statutes
Crimes Against Children
Sex Crimes
Investigative Report Writing
Patrol Techniques
Traffic Enforcement
Traffic Accident Investigation
Preliminary Investigation
Until 1999, the academy had no connection with the District and cadets received no academic
credit.
At some point, the Sheriff and the District began discussing an affiliation that would
allow academy cadets to receive academic credit as students of the District. The Sheriff
3

expressed a desire to upgrade the professionalism of law enforcement personnel by
encouraging them to get their associate degrees. It was believed that cadets who earned
academic credit during their academy training would be more likely to go on to earn their
degrees, which in tum would help them to advance in their profession.
According to District officials involved in discussions with the Sheriff, the District's
motivations were to support the Sheriff and to "forge better community relations." The District
also had an opportunity to benefit financially, because the District receives funds based on the
number of Full Time Equivalent Students (FTES), and additional funds for growth in the
number ofFTES.2
On the issue of academy instructors, the District had no objection to paying the
instructors and making them District employees. Indeed, during initial discussions the District
proposed such an arrangement. However, the District's proposal was dropped after the Sheriff
insisted that the instructors come from local law enforcement agencies. There remained
questions however, as to whether the District would pay the instructors at the academy, and as
to whether the instructors would be regarded as District employees while teaching.
At some point, the Federation became aware of the potential arrangement between the
District and Sheriff. The subject was discussed informally between the District and
Federation, and finally came up in formal negotiations on April 21, 1999. The Federation
submitted a long list of questions based on the assumption that academy instructors would be
District employees covered by the CBA. Thus, for example, the Federation wanted to know if
2 District employees could also benefit financially. Under the CBA between the
District and the Federation, a percentage of growth funding would go into a general salary
increase pool.
4

the District was proposing to waive the negotiated salary in Article 3.4
of
the CBA for
academy instructors. The District asked for time to respond to the questions.
Four times between May
17
and June
1,
1999, the Federation reminded the District
about the list
of
questions submitted at the April
21
negotiations, but the District did not
respond during that time. By June 2, 1999, the District and the Sheriff had apparently reached
some agreement to affiliate the academy with the District. The issue
of
compensation had still
not been finally resolved, however. The District had apparently taken the position that it
should pay the academy instructors, but the Sheriff disagreed. In a letter dated June 2, 1999,
the Sheriff insisted that having the District pay the instructors (who would be law enforcement
personnel) would be an "unworkable" situation. The Sheriff concluded:
Therefore, I regret to inform you that we will be compelled to
abrogate our initial agreement to affiliate with the District
if
this
issue
of
instructor compensation is not resolved.
District officials thus understood it would be a "deal breaker" for the District to insist on
paying the academy teachers.
Witnesses for the District had different understandings as to why the Sheriff insisted on
paying the academy instructors. One witness testified that the Sheriff wanted to pay the
instructors because the Sheriff would have more control directing their activities and because it
would be easier to track when the instructors, who would mostly be Sheriff's personnel, came
on and off duty. Another witness testified that the Sheriff was concerned about his employees
"double-dipping." In other words, the Sheriff was concerned that his employees would be paid
by the District for teaching at the academy while collecting their full pay from the Sheriff.
On the other hand, the District initially wanted to pay the academy instructors in order
to ensure that the instructors could be regarded as employees of the District for FTES
5

attendance accounting purposes.3 The District had requested a legal opinion on this subject
from the Chancellor of California Community Colleges. In a letter dated June 3, 1999, the
Chancellor's office responded to the District's request, stating in part:
We understand that the Ventura County Community College
District (district) intends to contract with a local law enforcement
agency to provide law enforcement training. Instruction is being
provided by the local law enforcement agency using a qualified
instructor who is an employee of the local law enforcement
agency. The district intends to enter into contracts with the local
law enforcement agency and with the instructor for the training
being offered pursuant to Title 5, California Code of Regulations,
Section 58058(b ). The district will not compensate the local law
enforcement officer. The instructor meets minimum
qualifications, the training will be open to all interested students,
and all other requirements for offering a course at a community
college will be met. 	[Resp. Ex. I.]
The Chancellor's office noted that arrangements like the one proposed by the District and
Sheriff had caused "problems" and "audit exceptions" in the past. This was because the
Department of Finance had taken the position that to be an "employee of the district" within
the meaning of Section 58051(a)(l), the instructor had to be on the payroll of the District and
3 California Code of Regulations, title 5, section 58051(a)(l), states:
Except as otherwise provided, in computing the full-time
equivalent student [FTES] of a community college district, there
shall be included only the attendance of students while they are
engaged in educational activities required of students and while
they are under the immediate supervision and control of an
academic employee of the district authorized to render service in
the capacity and during the period in which he or she served.
(Emphasis added.)
Unless otherwise noted, all further regulatory references are to the
California Code of Regulations, title 5.
6

be paid a real salary. However, the Chancellor's office opined that Section 58058(b) 4 solved
the problem by establishing a procedure whereby an instructor can be both an employee of the
District - for accounting purposes - and an employee of a contractor. To take advantage of
Section 58058(b), the Chancellor's office stated that both the District and Sheriff would have
to agree that the District maintains the primary right to control and direct the instructor while
he or she is providing instruction. The Chancellor's office then stated:
In conclusion, we think that Section 58058 contemplates a public
or private agency providing courses for a community college
using agency employees as instructors. These agency employees
are not temporary, contract, or regular employees of the district,
but qualify to be considered as "employees of the district" for
attendance accounting purposes only.
4 Specifically, California Code of Regulations, title 5, section 58058, states:
(a) 	A person is an 'employee of the district' within the
meaning of subdivision (a)(l) of Section 58051 if:
(b) 	For the purposes of complying with the
requirements of this section, a district may also contract
for instruction to be provided by a public or private
agency. 	Such contracts shall specify that the district has
the primary right to control and direct the activities of the
person or persons furnished by the public or private
agency during the term of the contract. In addition, the
district shall enter into a written contract with each person
furnished by the public or private agency; and said
contracts shall meet the requirements of subsection (a)(l)
and (2) of this section. In this manner an individual
employed will continue to be an employee of a public or
private agency, while at the same time qualifying as an
employee of the district.
7

This opinion from the Chancellor's office apparently assuaged the District's concern about
FTES attendance accounting problems.
On June 8, 1999, the District finally wrote a letter to the Federation, stating:
In response to your inquiries with respect to the proposed police
officers training program at Ventura College, please be reminded
that the courses will be taught by employees of local law
enforcement agencies, not by employees of the Ventura County
Community College District. Accordingly, these instructors will
not be members of the bargaining unit at the District and as such,
the VCCCD-AFT Agreement will not be applicable as to them.
We are enthusiastic about the proposed program, as it will be of
great benefit to everyone including students, faculty, staff, and
the entire Ventura County community.
I look forward to your continued cooperation.
(C.P. Ex. 5.)
The Federation responded by filing its unfair practice charge on June 14, 1999.
At a meeting on July 13, 1999, the District's Board of Trustees passed the following
resolution:
WHEREAS it has been determined that there is a need for a
police officer training academy in Ventura County that provides
college credit; and
WHEREAS the Ventura County Community College District and
the Ventura County Sheriffs Department have reached an
agreement regarding the specifics of the academy;
IT IS HEREBY RESOLVED that the Ventura County
Community College District shall offer a POST Basic Academy
through a contract with the Ventura County Sheriffs Department
whereby the instruction will be provided by employees of the
Sheriffs Department and other local enforcement agencies.
(Resp. Ex. B.)
The action item on the Board's agenda stated that the fiscal impact of this resolution was
"Undetermined."
8

The District and Sheriff eventually signed a Master Institutional Services Agreement
(Agreement). The Federation requested a copy
of
the Agreement, which the District provided
on November 22, 1999. Attached was a letter dated October 19, 1999, from the Sheriff to the
Ventura County Board
of
Supervisors, stating in part:
Fire Chief Bob Roper and I have reached an agreement with
District Chancellor Westin that the Ventura County Community
College District's FTES revenues will be used entirely to
construct and maintain a state-of-the-art, regional public safety
training center. The facility will be built within three years at the
Camarillo Airport. This partnership presents a wonderful
opportunity for all parties. [C.P. Ex. 6.]
At the hearing, District officials confirmed the existence
of
this agreement to use FTES funds
for a new facility, although details
of
this agreement are not in the record.
In the Agreement that is in the record, the Sheriff agrees to provide instruction for
which students will receive credit through the District. Paragraph 34
of
the Agreement states:
SHERIFF certifies that the COURSES shall be held at facilities
that are clearly identified as being open to the general public
(Title 5, Section 58051.5). Enrollment in the COURSES is open
to any person who has been admitted to DISTRICT and who has
met applicable prerequisites (Title 5, Sections 51006 and 58106).
Both DISTRICT and SHERIFF agree that, per Penal Code 832.3
subdivision (c), at least 15%
of
these students shall be non-law
enforcement trainees,
if
available. [C.P. Ex. 6.]
It is required by law that community college courses be open to enrollment by anyone admitted
to the college and meeting the course prerequisites.5 It is also required by law that
15
percent
of
students in POST-certified basic law enforcement courses offered by community colleges be
non-law enforcement trainees
if
they are available. 6
5 See California Code of Regulations, title 5, section 51006.
6 See Penal Code section 832.3(c).
9

Paragraph 11 of the Agreement provides that the instructors for the academy "are not
academic employees and are not employees of the District". Rather, the instructors are
employees of the Sheriff. Paragraph 56 of the Agreement further provides that academy
instructors are not members of the academic bargaining unit. Exhibit B to the Agreement is a
form to be signed by the District and each academy instructor, specifically providing that the
instructor will be entitled to no compensation or benefits from the District.
Although portions of paragraph 11 purportedly provide that academy instructors are not
employees of the District, other portions indicate otherwise. Specifically, paragraph 11 also
provides that:
Only for the limited purposes of attendance accounting standards
and computing Full-Time Equivaient Students, the instructors are
deemed to qualify as 'employees of the district' only within the
narrow meaning of Section 58058(b) of Title 5 of the California
Code of Regulations. [Emphasis in original.]
As noted above, Section 58058(b) provides that employees of contractors may be deemed
employees of the District for accounting purposes as long as the District "has the primary right
to control and direct the activities of the person or persons furnished by the public or private
agency during the term of the contract." (Sec. 58058(b).)
Consistent with the requirement that the District maintain primary control and direction
over the academy instructors, the Agreement provides that supervision and instruction of
students shall conform with District and State standards and that the District shall provide
control of and direction to instructors. (Agreement, par. 8, 15.) Paragraph 17 again affirms
that the District has the "primary right to control and direct the instructional activities of the
instructors." Paragraph 17 continues:
NOTE: DISTRICT will demonstrate control and direction
through such actions as providing the instructor with an
10

instructor's orientation manual, course outlines, curriculum
materials, grading procedures, and any other materials and
services it would provide its other instructors who teach credit
courses. [Emphasis added.]
Although the District has no authority over personnel issues involving Sheriff's
employees (Agreement, par. 15), the Agreement gives the District the authority to remove
instructors from their teaching assignment. The Agreement further provides that academy
instructors will be evaluated by the District. (Agreement, par. 27.) Finally, the Agreement
provides that the District will review academy courses as necessary and reserves to the
Governing Board of the District the right to determine the appropriateness of academy courses.
(Agreement, par. 25-26.)
As a result of the agreement between the District and the Sheriff, two new courses have
been added to the District catalog. Those two courses are described, in part, as follows:
CJ V80- P.O.S.T REGULAR BASIC COURSE - 30 Units
Prerequisite: student must be 18 years old, posses [sic] a valid
driver's license, and have no felony convictions; California Penal
Code requires each applicant for admission to a basic course of
training certified by the Commission on Peace Officer Standards
and Training (P.O.S.T.) who is not sponsored by a local or other
law enforcement agency, or who is not a peace officer employed
by a state or local agency, department or district, shall be required
to submit written certification from the Department of Justice that
the applicant has no criminal history background which would
disqualify him or her pursuant to this code, or the Welfare and
Institutions Code, from owning, possessing, or having under his
or her control a firearm; medical certification required; California
Government Code requires medical and psychological suitability
examinations as a condition of employment.
Hours: 	15 lecture; 45 laboratory weekly
This is a P.O.S.T. (Peace Officer Standards and Training) basic
course for students and individuals wishing to become full time
law enforcement officers as defined in the California Penal Code
(CPC). The course fulfills P.O.S.T. entry-level requirements as
11

outlined in the CPC. The course provides instruction in
administration of criminal justice, ethics, California court system,
discretionary decision making, first aid, CPR, crimes in progress,
unusual occurrences, police radio communications, police-
community relations, criminal law, traffic law, traffic
investigation, laws of evidence, and patrol procedures. Emphasis
is placed on instruction in arrest, search, and seizure, methods of
arrest, baton training, vehicle stops, and report writing.
Additionally, the course provides special emphasis on and
training in firearms safety, firearms (pistol and shotgun) use
related to law enforcement with training in combat/stress
shooting scenarios and qualification over a P.O.S.T. prescribed
course of fire. 	The course completes the P.O.S.T. basic
requirements.
CJ V81 - ORIENTATION FOR BASIC COURSE - 5 Units
Hours: 	3 lecture; 6 laboratory weekly
This course is an orientation for P.O.S.T (Peace Office Standards
and Training) regular basic course. Emphasis is placed on
assisting the student in preparing for successful completion of the
P.O.S.T. regular basic course.
Offered on a credit/no credit basis only.
(C.P. Ex. 25.)
The District catalog also now lists a new "academy option" for earning a certificate of
achievement or an associate degree in Criminal Justice, in addition to the previous "academic
option" described earlier.
Under the academy option, a student needs to complete just three required courses:
Concepts of Criminal Law
Criminal Procedures
P.O.S.T. Regular Basic Course
Unlike the academic option, the academy option does not require students to complete
Introduction to Criminal Justice or Community Relations, presumably because those subjects
are covered in the POST-certified basic course. Under the academy option, a student also
needs to complete just one additional course from a list of five, which, unlike the list for the
12

academic option, does not include California Penal Code, Criminal Justice Report Writing,
Patrol Procedures, Criminal Investigation or Traffic Control and Investigation, again
presumably because those subjects are covered in the POST-certified basic course.
It is undisputed that the POST-certified basic course covers many of the same topical
areas as other Criminal Justice courses. However, the District asserts that the courses in the
academy differ significantly from those in the Criminal Justice program. Specifically, most
Criminal Justice courses are 3-unit courses of three hours a week for 16 weeks. The basic
course, in contrast, is a 30-unit course of 60 hours a week for 24 weeks.7 The basic course is
offered only at a training facility several miles from the main District campus. The basic
course is designed to be practical, while other Criminal Justice courses are designed to be more
historical and philosophical. Most important, asserts the District, is that fact that the basic
course is highly standardized by POST, while other Criminal Justice courses may vary as much
as academic freedom allows.
Pursuant to Penal Code section 832.3, subdivision (c ), the District and Sheriff agreed
that at least 15 ,nercent of the students attendirnr~
the academv. would be non-law enforcement
trainees, if available. There is no evidence in the record as to whether this goal was achieved.
However, it does not appear that the District has reduced the number of other Criminal Justice
courses or sections because of the academy. To the contrary, the District elicited testimony
that the academy has actually resulted in more hours worked, with commensurate increases in
pay, for the District's instructors.
7 The orientation to the basic course, meanwhile, is a 5-unit course of 9 hours a week
for 4 weeks.
13

At the hearing, District officials credibly denied that a desire to save labor costs was
any part of the District's motivation to enter into the Agreement with the Sheriff. There is no
evidence that the District's Board of Trustees considered labor costs as part of its decision
approving the Agreement.
ALJ'S PROPOSED DECISION
In the proposed decision, the ALJ considered the issue to be whether the District
unlawfully changed policy by unilaterally subcontracting the instruction of certain Criminal
Justice courses. As there was no dispute that the District unilaterally implemented its decision
to allow Sheriffs employees to teach academy courses, the sole issue before the ALJ was
whether the District's decision was within the scope of representation. To address this issue,
the ALJ began by setting forth the well-settled test for determining whether a matter is within
the scope of representation. (Anaheim Union High School District (1981) PERB Decision
No. 177 (Anaheim).) Under Anaheim, a subject is within the scope ofrepresentation if:
(1) it is logically and reasonably related to hours, wages or an
enumerated term and condition of employment, (2) the subject is
of such concern to both management and employees that conflict
is likely to occur and the mediatory influence of collective
negotiations is the appropriate means of resolving the conflict,
and (3) the employer's obligation to negotiate would not
significantly abridge [its] freedom to exercise those managerial
prerogatives (including matters of fundamental policy) essential
to the achievement of the District's mission. [Anaheim at
pp. 4-5.]
The ALJ then proceeded to discuss the various PERB decisions dealing with the issue
of subcontracting, with particular emphasis on San Diego Adult Educators v. Public
Employment Relations Bd. (1990) 223 Cal.App.3d 1124 [273 Cal.Rptr. 53] (San Diego II) and
Lucia Mar Unified School District (2001) PERB Decision No. 1440 (Lucia Mar). The ALJ
14

noted that these cases reveal that subcontracting is sometimes within the scope of
representation and sometimes not.
In Lucia Mar, a school district had simultaneously laid off its transportation employees
and subcontracted the same transportation services. The Board affirmed and adopted a
proposed decision that included a comprehensive survey of "subcontracting cases." The
proposed decision stated, in part:
Under these circumstances, where the employer simply replaces
its employees with those of a contractor to perform the same
services under similar circumstances, there is no need to apply
any further test about labor costs in order to determine whether
the decision is subject to the statutory duty to bargain.
(Lucia Mar, proposed dee. at p. 39.)
Thus, the Board found the subcontracting decision in Lucia Mar to be within the scope of
representation.
San Diego II also involved subcontracting, but under very different and unique facts.
In San Diego II, a community college district had discontinued certain "popular" language
classes because of high labor costs and had terminated the teachers of those classes. Two
months later, under public pressure, the employer subcontracted the teaching of the same
classes to a foundation. The court treated the discontinuation and termination decision as
completely separate from the subcontracting decision. The court declared, in part:
most important factor in determining 	.. - ... ~. an employer's
decision to have work done by a subcontractor rather than regular
employees is unlawful is the impact of the subcontracting on the
regular employees. 	[Citations.] Here, because the District
terminated 'popular' language classes before the public pressure
caused it to contract with the Foundation to provide the classes,
the former District-employed teachers suffered no detriment by
the decision to contract with the Foundation.
(San Diego II at p. 1134.)
15

Because the district had already terminated all the instructors of "popular" language courses
independently of any subcontracting decision, the court of appeal held that the district's
decision did not impact any employees and thus was not within the scope of representation.
After analyzing the facts in San Diego II and Lucia Mar, the ALJ concluded that the
facts in this matter did not neatly fit into either case. The ALJ noted that unlike Lucia Mar, the
District did not terminate any Federation members nor were their work hours reduced.
However, unlike San Diego II, the District's decision does impact its instructors because they
are now competing with academy instructors to teach, for academic credit, some of the same
subjects to some of the same students. The ALJ concluded that the decisive factor in
determining whether the District's decision is within the scope of representation should be
whether the District's decision was based on labor costs. Since the ALJ concluded that labor
costs were not a motivating factor, the complaint was dismissed.
DISCUSSION
As set forth in the complaint, the issue before the Board is whether the District
unlawfully changed its policy of having Federation members teach courses by contracting out
instruction of POST courses to employees of the Sheriff. As there is no dispute that the
District unilaterally made the alleged changes, the sole issue before the Board is whether the
District's decision to contract with the Sheriff was within the scope of representation. If it was
within the scope of representation, then the District violated EERA by failing to first negotiate
the change with the Federation.
The District and the ALJ characterize the issue in this matter as one of
"subcontracting." Accordingly, the ALJ's decision analyzed this case in light of PERB's
various "subcontracting" cases. However, as discussed below, the Board believes that the
16

specific facts in this case render this situation more akin to a transfer of work, rather than
subcontracting. The distinction between transfer of work and subcontracting is important since
the Board has analyzed these two situations differently. (See, e.g., Whisman Elementary
School District (1991) PERB Decision No. 868 (Whisman).)
Transfer of Work Versus Subcontracting
A "transfer of work" occurs when an employer transfers unit work to nonunit
employees of the same employer. (San Diego II at p. 1133, fn. 5; Rialto Unified School
District (1982) PERB Decision No. 209 (Rialto).) There are two ways to prove that a transfer
of work has occurred. (Eureka City School District (1985) PERB Decision No. 481 (Eureka).)
The first is to prove that unit employees have ceased performing work which they previously
performed. The second is to prove that nonunit employees have begun to perform duties
previously performed exclusively by unit employees. (Eureka at p. 15.)
Applying the three-prong Anaheim test, the Board has held that transfer of work
decisions are within the scope of representation. In Rialto, the Board found that transfer of
work decisions satisfy the first prong of Anaheim because:
The decision to transfer work from one unit to another affects the
wages, hours and working conditions of employees in the former
unit. Actual or potential work is withdrawn from negotiating unit
employees when such work is transferred out of that negotiating
unit to employees in another unit in the employer's workforce.
Wages and hours associated with the transferred-out work are
similarly withdrawn.
In addition to these effects, diminution of unit work by transferring
functions weakens the collective strength of employees in the unit
and their ability to deal effectively with the employer and can
affect the viability of the unit itself. Such impact affects the work
hours and conditions, and thus is logically and reasonably related
to specifically enumerated subjects within the scope of
representation. [Rialto at pp. 6-7.]
17

The Board also found that the second-prong of Anaheim was satisfied because the purposes of
BERA would be furthered by negotiations over decisions to transfer work. The Board noted
that:
Negotiations that allowed for the possibility of tradeoffs and
concessions, as well as suggestions of alternate means of
accomplishing the District's cost-reduction objectives in this case,
may have provided opportunity for the interests of both the
employer and the employees to be accommodated.
(Rialto at p. 8.)
Finally, the Board found that the third prong of Anaheim was satisfied because negotiating
decisions to transfer work would not unduly interfere with management's prerogatives. This is
because the employer is simply moving work from one group of employees to another under
its employ. (Cf. Fibreboard Paper Products Corp. v. National Labor Relations Board (1964)
379 U.S. 203,213 [85 S.Ct. 398] (Fibreboard) (decision to replace employees with
independent contractor performing the same work under similar conditions is within the scope
ofrepresentation).) Such decisions do not lie "at the core of entrepreneurial control" nor
would managerial freedom be abridged by having to bargain over such decisions. (Fibreboard
at pp. 213, 223.) Accordingly, the Board in Rialto held that:
The District would not have surrendered central managerial
prerogatives had it negotiated with the Association before
transferring work out of the unit. The decision itself was not one
which is central or essential to the District's obligation to run its
operation or deliver educational services. Therefore, negotiations
over this matter would not have abridged the District's freedom to
exercise managerial prerogatives essential to its mission.
(Rialto at pp. 8-9.)

As a result, the Board has long held that transfer of work decisions are within the scope of
representation. (Rialto; Solano County Community College District (1982) PERB Decision
No. 219.)
Similar to "transfer of work" decisions, subcontracting decisions involve the literal
transfer of work. However, in "subcontracting," the transfer of work is from existing
employees to employees of another employer. (San Diego II at p. 1133; Beverly Hills Unified
School District (1990) PERB Decision No. 789.) In contrast to "transfer of work" decisions,
"subcontracting" decisions are not always within the scope ofrepresentation. (Cf. San Diego II;
Lucia Mar.) This is because a decision to "subcontract" may constitute a managerial decision
"at the core of entrepreneurial control" and be based upon factors not amenable to negotiation.
(Fibreboard at p. 223 (concurring opinion of Justice Stewart).) However, where the decision to
subcontract is related to overall enterprise costs, it is within the scope of representation
regardless of whether the decision can be characterized as a decision "at the core of
entrepreneurial control." (Fibreboard at pp. 213-214; Otis Elevator Company (1984) 269
NLRB 891, 900-901 [116 LRRM 1075] (Otis Elevator) (concurring opinion of Member
Zimmerman).) This is because subcontracting decisions motivated by an employer's enterprise
costs are "peculiarly suitable for resolution through the collective bargaining framework."
(First National Maintenance Corp. v. National Labor Relations Board (1981) 452 U.S. 666, 680
[101 S.Ct. 2573].) Since the union has control over various enterprise costs, "union concessions
may substantially mitigate the concerns underlying the employer's decision, thereby convincing
the employer to rescind its decision." (Otis Elevator at p. 901 (concurring opinion of Member
Zimmerman).) In a decision interpreting the National Labor Relations Act (NLRA), the
19

Supreme Court noted that although a satisfactory resolution may not be reached in a contracting
out situation:
[N]ational labor policy is founded upon the congressional
determination that the chances are good enough to warrant
subjecting such issues to the process
of
collective negotiation.
(Fibreboard at pp. 404-405.)
Because the Board has analyzed transfer
of
work decisions differently from
subcontracting ones, it is important to establish initially which situation is at issue here. 	(See
e.g., Whisman at p. 12; San Diego Community College District (1988) PERB Decision
No. 662, pp. 27-29 (concurring and dissenting opinion
of
Member Porter) (San Diego I).) As
evidenced by the facts in this case, distinguishing between the two situations is not always
easy. The primary difference between the two concepts is whether the work is being
transferred within the same employer or to another employer. Accordingly, the first step is to
identify the employer
of
the academy instructors.
Determining the "Employer"
of
the Academy Instructors
There can be little doubt that the Agreement was drafted to prevent the academy
instructors from being considered employees
of
the District within the meaning
of
EERA. The
Agreement provides expressly that the academy instructors are not "academic employees"
of
the District and that they are not part
of
the Federation's bargaining unit. The Agreement
further states that the academy instructors "shall be considered employees
of
the Sheriff."
Each academy instructor was required to sign an agreement acknowledging these conditions.
Although the District intended that the academy instructors would not be considered its
employees, the Board is not bound by the District's intent nor the provisions
of
the Agreement
in determining whether the academy instructors are "employees" for purposes of EERA.
(Goleta Union School District (1984) PERB Decision No. 391 at p. 16 (Goleta.) The Board is
20

also not bound by any acknowledgement that the academy instructors may have signed
agreeing not to be considered employees
of
the District. (Goleta at p. 16.) 	The rights
guaranteed to employees
by
BERA cannot be abrogated unilaterally
by
an employer through a
cleverly written contract with a third party. The issue
of
whether the academy instructors are
"employees" is an issue for the Board to decide by examining the record in light
of
the
statutory language
of
BERA.
Under BERA, an "employee" is defined 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." (BERA sec. 3540. l(i).)
	By
employing circular language, the Board has held that the Legislature:
[I]ntended the definition
of
'public school employee' to be
inclusive, and extend broad coverage for representation and
negotiating rights for persons who perform services for, and
receive compensation from, public school employers.
[Goleta Union School District (1984) PERB Decision No. 391,
pp. 15-16, citing Palo Alto Unified School District, et al. (1979)
PERB Decision No. 84.]
Accordingly, the Board has long applied a broad definition to the term "employee" under
BERA. (Goleta at p. 16, fn. 9.)
Because the definition
of
"employee" under BERA is circular, the Board has often
relied upon traditional indicia
of
employment to distinguish between employees and non-
employees (e.g., contractors). (Goleta at p. 17.) Under the NLRA, the test
of
whether an
individual is an independent contractor or an employee is the common law
of
agency right-to-
21

control test. (NLRB v. United Insurance Co. (1968) 390 U.S. 254, 256 [67 LRRM 2649] .)8
Pursuant to that test:
Where the one for whom the services are performed retains the
right to control the manner and means by which the result is to be
accomplished, the relationship is one of employment; while, on
the other hand, where control is reserved only as to the result
sought, the relationship is that of an independent contractor. The
resolution of this question depends on the facts of each case, and
no one factor is determinative. [News Syndicate Co. (1967) 164
NLRB 422, 423-424 [65 LRRM 1104] (News Syndicate).]
Attempting to apply the control test in this matter is not a simple proposition. As
already noted, the Agreement between the District and Sheriff contains contradictory language
regarding the employment status of the academy instructors. The reason for the conflicting
provisions appears to be the District's desire to obtain state FTES funds for "providing" the
academy courses. Pursuant to Section 5805 l(a)(l ), the District could only obtain the funds if
the academy courses were provided "under the immediate supervision and control of an
academic employee of the district." (Sec. 58051(a)(l).) Under Section 58058, an "employee
of the district" may be employed by another public or private agency so long as the district
maintains the "primary right to control and direct the activities of the person or persons
furnished by the public or private agency." (Sec. 58058.) Thus, for the District to obtain state
FTES funds, state law requires that the academy instructors be District employees or be under
the primary control of the District.
8 In Goleta, the Board noted that the NLRA definition of "employee" differs from that
under EERA. Accordingly, NLRA precedent must be examined carefully to determine
whether it is applicable to EERA. Although the definition of "employee" under the NLRA
differs from that under EERA, the same issues often arise in both statutes - for example,
differentiating between subcontractors and employees. To the extent the issues being
addressed are similar, the Board may rely on appropriate NLRA precedent. (Goleta at p. 15.)
22

The District selected the option
of
maintaining the primary right
of
control over the
academy instructors. The Agreement contains many provisions designed to ensure that the
District maintains the primary right
of
control over the academy instructors. Under the
Agreement, the District is obligated to: (1) ensure the instruction at the academy complies with
District and State standards; (2) provide control and direction over academy instructors;
(3) provide academy instructors with course materials; and (4) remove an instructor from a
class for misconduct. In short, the District is obligated to treat the academy instructors
identically to "its other instructors who teach credit courses." The District's control does not
just extend to the "result," but also to the "manner and means by which the result is to
be
accomplished." (News Syndicate at pp. 423-424.) In other words, the District maintains more
than general supervisory control over the academy instructors. Instead, the District maintains
the power to dictate the performance
of
the academy instructors by directing their teaching,
ensuring their compliance with applicable standards, evaluating their performance, and
by
its
power to remove them from the classroom.
Thus, although the academy instructors are Sheriffs employees in many respects, the
Board finds that they are also "employees"
of
the District within the meaning
of
EERA during
the times they are teaching at the academy. This finding is based on the fact that both
Section 58058 and the Agreement require the District to maintain the primary right
of
control
over the academy instructors while they are teaching. Such a finding is consistent with Board
precedent which has recognized the concept
of
"joint employers."9
9 A "joint employer" situation arises "where two or more employers exert significant
control over the same employees - where from the evidence it can be shown that they share or
co-determine those matters governing essential terms and conditions of employment." (United
Public Employees v. Public Employment Relations Bd. (1989) 213 Cal.App.3d 1119, 1128
23

Although the Board finds that the District and Sheriff are joint employers
of
the
academy instructors, this finding is not dispositive in determining whether a "transfer
of
work"
or "subcontracting" analysis should be used. This is because the distinction between
transferring work within the same employer versus to another employer is blurred
where "joint
employers" are involved. Thus, a
'joint
employer" finding does not automatically
render
this a
transfer
of
work situation. However, as discussed below, the Board finds that a transfer
of
work analysis is most appropriate given the facts in this case.
Subcontracting Decisions are Inapposite
The fact that the District and Sheriff act as "joint employers"
of
the academy instructors
distinguishes this case from what may appear to be similar situations considered
by
the Board
in the past. 	(See San Diego I (reversed in part and affirmed in part
by
San Diego II; Fremont
Union High School District (1987) PERB Decision No. 651 (Fremont).) San Diego II and
Fremont both involved contracting decisions where the district
or
school did not maintain
control over contractors' employees. For example, in San Diego II, a community college
district decided to contract out instruction
of
foreign language classes to a private foundation.
The contract between the college and foundation provided that the district would "provide
on-site class supervision, assist in teacher selection and determination
of
class offerings
...
"
(San Diego I at p. 8.) The record in that case established that the "supervision" provided by
the district was more
of
an "oversight function." (San Diego I at p. 33.) In contrast, the
Agreement here provides that the District maintains the primary right to control academy
instructors.
[262 Cal.Rptr. 158] (citing to N.L.R.B. v. Browning-Ferris Industries (3 rd Cir. 1982) 691 F.2d
1117, 1124 [73 A.L.R. Fed. 597]) (United Public Employees).)
24

Similarly, Fremont involved a school district's decision to offer classes through a third
party, the University
of
La Verne (La Verne). The Board in Fremont specifically found that
the La Verne teachers were not under the ultimate control
of
the district
"or
that the district
exercised any control whatsoever over La Verne teachers." (Fremont at p. 20.) The contract
between the district and La Verne declared La Verne "solely responsible for determining and
administering the educational program." (Fremont at p. 20 [emphasis in original].)
This situation is distinguishable from San Diego II and Fremont because the District
here maintains the primary right to control the instructors and must do so in order to comply
with the state FTES regulations. To allow the District to characterize its decision as
"subcontracting" would elevate clever legal writing above reality. Any employer would be
able to avoid the dictates
of
EERA by using "contractors," yet be able to maintain complete
control over the "contractors" just like any other employee. Such as result is contrary to the
purposes
of
EERA. Accordingly, the Board finds that a subcontracting analysis is not
appropriate under the facts in this case.
Transfer
of
Work Analvsis is Appropriate
As already revealed, the Board finds that a "transfer
of
work" analysis is appropriate in
this case. To understand why, it is important to first distinguish between the District's decision
to affiliate with the Sheriff's academy and its decision to utilize Sheriff's employees to teach
academy courses. The Board does not view these decisions as contingent upon one another. It
was entirely possible for the District to affiliate with the academy and designate the academy
instructors as District employees. The facts show 	this was the District's original
The District argues that the two decisions were 	fact linked because the Sheriff
demanded that the academy instructors be Sheriff's "employees." There was testimony that
25

the District's request to designate the academy instructors as District employees would have
been a "deal-breaker" for the Sheriff. However, there were conflicting reasons presented for
why the Sheriff insisted on paying the academy instructors. To the Board's knowledge, there
was no statute, regulation, or rule that prohibited the District from employing the academy
instructors. The Sheriff simply believed that there would be more control if the instructors
were Sheriffs employees.
However, the Board cannot allow the demands of a third party to tum a decision that
would otherwise be negotiable into one that is not. To do so would eviscerate the concept of
bargaining. An obligation to bargain does not disappear simply because a party insists that its
position is firm and there is no room for negotiation. In other words, bargaining is not futile
simply because the Sheriff states that the issue is a "deal-breaker." The purpose of bargaining
is to test whether it really is a "deal-breaker." Perhaps there is room for negotiation; perhaps
there is not. The purpose of bargaining is to find out.
In the Board's view, the Sheriff's request to the District that the academy instructors be
designated Sheriff's employees is exactly the type of decision amenable to negotiations.
During negotiations, it is possible that the interests of both the employer and employees may
be accommodated through tradeoffs, concessions, and other alternative means. (Rialto at p. 8.)
Here, the Board can easily envision the give and take of negotiations resulting in a solution for
all parties. For example, if the Sheriff was concerned about being able to track the work hours
of academy instructors, special control mechanisms could have been negotiated. Similar
control mechanisms could have also addressed the issue of "double-dipping." Indeed, there
was testimony that the District had for years offered a "Reserve Officers Academy" taught by
City of Oxnard police officers. These officers were considered "employees" of the District
26

while teaching and included within the Federation's unit. Thus, there appears to be precedent
for exactly such a result.
This is not to say that the District and Federation would have definitely been able to
reach an agreement to have District instructors teach at the academy. It is entirely possible that
no satisfactory solution would result from negotiations. However, as the Supreme Court found
with respect to the NLRA, the Board finds that the Legislature in enacting EERA has
determined that the "chances are good enough to warrant subjecting such issues to the process
of
collective negotiation." (Fibreboard at pp. 404-405.)
Further, even
if
the Sheriffs position was firm, negotiations still could have occurred.
Having to negotiate over the decision does not mean the District could not have taken a firm
position during bargaining. (Public Employees Assn. v. Board
of
Supervisors (1985)
167 Cal.App.3d 797, 805-806 [213 Cal.Rptr. 491]; Oakland Unified School District ( 1982)
PERB Decision No. 275.) What is required is that the District enter negotiations with a good
faith intent to reach agreement. (Pajaro Valley Unified School District (1978) PERB Decision
No. 51.)
The District vigorously argues that its decision to affiliate with the Sheriffs academy
was a fundamental management prerogative and should not be found to be within the scope
of
representation. With respect to the decision to affiliate, the Board agrees. However, once
affiliated, the District had to decide whether the academy instructors would be District or
Sheriff employees. Unlike the decision to affiliate, this decision is not a fundamental
management prerogative. It is simply a transfer of work decision which the 	long
held to be negotiable. 	District's arguments to the contrary evince a fundamental
misunderstanding of the bargaining obligation. The fact that a decision is within the scope of
27

bargaining does not mean the decision is prohibited. The Board's holding that the District's
decision is negotiable simply means that the District must first negotiate the decision with the
Federation in good faith. Accordingly, the Board finds that a transfer of work analysis should
be applied to these specific facts.
Decisions to Transfer Work are Within the Scope of Representation
A transfer of work occurs when unit employees cease performing work which they
previously performed or when nonunit employees begin performing duties previously
performed exclusively by unit employees. (Eureka at p. 15.) The facts establish that the
Sheriffs employees are now teaching academic courses which were previously exclusively
taught by the Federation's members. Accordingly, the Board finds that the District's decision
to have Sheriffs employees teach academy courses constitutes a transfer of work.
The District counters that the academy courses are different from traditional Criminal
Justice courses taught by the Federation's members. The District asserts that the academy
courses are highly standardized by POST, while other Criminal Justice courses may vary as
much as academic freedom allows. The District misses the point. The fact that academy
courses may be pedagogically different from Criminal Justice courses does not change the fact
that both are "academic courses" which the District and Federation have agreed would be
taught by the Federation's members. The issue is not whether they cover the exact same
topics, but whether they are both academic courses.
For example, the District offers both Elementary French I and Situational Conversation
French I. 	two classes appear to be taught very differently; the 	class emphasizes
principles of grammar, reading of prose, and simple composition, while the latter is designed to
give students an opportunity to practice French in conversational settings. However, both
28

classes are academic courses for which students receive credit. Similarly, while academy
courses may be taught differently from traditional Criminal Justice courses, it is undisputed
that both are academic courses for which students receive credit. Further, it is undisputed that
students have the option of taking academy courses or traditional Criminal Justice courses to
satisfy various requirements. Accordingly, the District's argument that the academy courses
are different from the "academic courses" taught by the Federation's members must be
rejected.
The record also establishes the undisputed fact that the District's decision to transfer
work to Sheriffs employees was taken without providing the Federation an opportunity to
bargain over the decision itself. Accordingly, the Board holds that the District violated EERA
section 3543.S(c), and derivatively 3543.S(b), by unilaterally transferring unit work to
Sheriffs employees without first affording the Federation the opportunity to negotiate with the
District over that decision.
REMEDY
Section 3514.S(c) of EERA provides, in pertinent part, that:
(c) The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including but not
limited to the reinstatement of employees with or without back
pay, as will effectuate the policies of this chapter.
Pursuant to this authority, PERB has broad authority to remedy unfair practices and fashion
remedies to effectuate the purposes and policies of EERA. The Federation requests as a
remedy that: 	) 	members be assigned to teach courses at the academy; (2) the
provisions of the CBA between the District and Federation be applied to the academy; (3)
Federation members be awarded backpay for wages that they would have earned teaching
29

academy courses; and (4) the Federation be awarded the agency fees it would have received
from academy instructors if they were part of the unit.
In this case, the Board has found that the District unlawfully transferred unit work to
Sheriffs employees without first satisfying its duty to negotiate with the Federation. As the
Board held in Rialto:
This is a serious infringement of employee rights, as it denies the
exclusive representative the opportunity to present and negotiate
alternatives to the District's action, and to negotiate over the
effects of the transfer of work. It is generally appropriate under
these circumstances to order a return to the status quo and order
the District to meet and negotiate, upon request, over the decision
and effect of the transfer of work, to cease and desist from taking
any further unilateral actions regarding matters within scope, and
to make employees whole for any compensation lost as a result of
the District's unlawful conduct. [At p. 13.]
Thus, the normal remedy where an unlawful unilateral change has occurred is to order a return
to the status quo ante. (See also, Santa Clara Unified School District (1979) PERB Decision
No. 104.) However, like the Board in Rialto, this Board is reluctant to order a return to the
status quo ante because of the possible disruption to innocent third parties. (See Lucia Mar.)
The academy has been in operation for several years. Presumably, students are currently
enrolled in academy courses and many others may have made plans to enroll in the academy in
the future. 	Any order to immediately return to the status quo ante could disrupt the operation
of the academy and the education of these students. The Board wishes to avoid such an
outcome. Accordingly, the Board will stay its order to return to the status quo ante for 120
days. 10 During this time period, the Board expects the parties to be able to complete
negotiations over the District's decision to utilize Sheriffs employees to teach academy
30

courses. After 120 days, the District shall be prohibited from transferring unit work at the
academy to Sheriffs employees without first negotiating the decision with the Federation.
As for the Federation's first and second remedial requests, they go beyond a return to
the status quo ante. The Federation's requests assume that if negotiations had occurred, the
District would have agreed to use unit members to teach academy courses. The Board does not
believe such an assumption is appropriate. As emphasized, the Board's decision does not
prohibit a transfer of work; it holds that a transfer of work is within the scope of representation
and must be negotiated.
As for the Federation's request for backpay, the record establishes that the District's
instructors did not suffer any loss of wages as a result of the District's decision. Accordingly,
a backpay award is not warranted at this time. However, there remains the possibility that
since the hearing the District's instructors have suffered a loss in compensation directly related
to the District's unfair practice. To the extent such a loss in compensation can be
demonstrated, the District shall make the employees whole. The parties are ordered to meet
and confer over any claims for backpay. If agreement cannot be reached, the Federation may
seek compliance with this order through the Office of the General Counsel.
Finally, an award to the Federation of agency fees is also inappropriate. Again, it is
improper to assume that 	negotiations had occurred, the District would have agreed to use
Federation members to teach academy courses. However, to the extent any Federation member
is awarded backpay, the Federation shall be entitled to any dues or fees associated with the
backpay amount.
10 The Board believes that 120 days is ample time to complete negotiations. If for
some unforeseen reason it is not, the stay may be extended by the Office of the General
Counsel for good cause.
31

ORDER
Based on the foregoing findings of fact, conclusions oflaw, and the entire record in this
case, it is found that the Ventura County Community College District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.S(c) by
unilaterally contracting out the instruction of certain courses.
Pursuant to EERA section 3541.S(c) it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate with the Ventura County
Federation of College Teachers, Local 1828, AFL-CIO (Federation) about the decision and
effects of transferring instruction of academy courses to non-Federation members.
2. 	Denying the Federation its rights guaranteed to it by EERA and refusing
to meet and negotiate over the transfer of work.
3. 	Denying Federation members their right to be represented by their
chosen representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Upon request from the Federation, cease allowing non-Federation
members to teach academy courses. If such a request is made, this order shall be stayed for
120 days to provide the District and Federation an opportunity to meet and negotiate over the
decision and effects of transferring instruction of academy courses to non-Federation members.
2. 	Make whole any Federation member for any loss of compensation, plus
interest at the rate of seven (7) percent per annum, which they suffered as a result of the
32

District's transferring instruction of academy courses to non-Federation members. If any relief
is awarded, the Federation shall be entitled to any dues or fees that it would have received from
the Federation member(s).
3. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily posted, copies of the
notice attached hereto as an Appendix.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the San Francisco Regional Director of the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on Federation.
Member Whitehead joined in this Decision.
Member Neima's concurrence begins on page 34.
33

NEIMA, Member, concurring: I agree that the Ventura County Community College
District (District) had a duty to bargain with the Ventura County Federation
of
College
Teachers (Federation) over the decision to enter an agreement with the Ventura County
Sheriff
(Sheriff) to bring a modified version
of
the Sheriff's law enforcement academy into the
District. I also agree that this case is not properly analyzed under the Public Employment
Relations Board's (PERB
or
Board) precedent regarding subcontracting. However, I
would
follow a simpler path to the majority's conclusion.
At the outset, I note that the complaint in this case alleged that the District violated
EERA section 3543.S(c)
by
failing to bargain over both the decision to affiliate the academy
and the effects
of
that decision. I also note that the first amended charge specifically alleges
that the District intended to use state full time equivalent student (FTES) funds obtained as a
result
of
the agreement "to construct a building adjacent to or near the District offices."
As noted by the majority, supra, the collective bargaining agreement (CBA) between
the District and the Federation mandated that a portion
of
increased FTES funds go into a
general salary increase pool. 1 In apparent conflict with that provision, according to
correspondence in the record, quoted supra page 9, the Sheriff and District's chancellor agreed
that "FTES revenues will be used entirely to construct and maintain a state-of-the-art, regional
public safety training center."
Also, as noted by the majority, under Anaheim Union High School District (1981)
PERB Decision No. 177 (Anaheim), a subject is within the scope ofrepresentation if:
(1) it is logically and reasonably related to hours, wages, or an
enumerated term and condition
of
employment, (2) the subject is
of such concern to both management and employees that conflict
is likely to occur and the mediatory influence of collective
1 See page 4, footnote 2, supra.
34

negotiations is the appropriate means
of
resolving the conflict and
(3) the employer's obligation to negotiate would not significantly
abridge [its] freedom to exercise those managerial prerogatives
(including matters
of
fundamental policy) essential to the
achievement
of
the District's mission.
Applying the first two Anaheim factors, I find the District's formation
of
an agreement
under which it has committed funds to construction
of
a building which the CBA with the
Federation has earmarked for salary increases for Federation members is (1) logically related
to wages; and (2) is
of
sufficient concern to both management and employees that conflict is
not only likely but actual and the mediatory influence
of
collective bargaining would provide
the appropriate means for resolving it.
Regarding the third Anaheim prong, the District has failed to establish that its ability to
exercise essential managerial prerogatives would be significantly abridged
by
bargaining with
the Federation over formation
of
the agreement with the Sheriff. Several aspects
of
the record
illustrate this point.
First, clear record evidence indicates that the District secured little,
if
any, managerial
control over the academy instructors. Throughout the negotiations leading to formation
of
the
agreement, the record indicates that the Sheriff consistently insisted on maintaining control
of
the instructors. The managerial control claimed by the District was extremely attenuated,
consisting
of
the barest indicia
of
employer status, articulated only for the limited purpose
of
securing FTES funding from the State.
Second, the District's professed interests in forming the agreement, namely to "forge
better community relations" and support the sheriff's department, bear at best a tenuous
relationship to "achievement
of
the District's mission" which, it would appear, is the education
of students. Sheriff department representatives articulated complimentary interests in forming
35

the agreement - saying it was designed to upgrade the professionalism
of
law enforcement
personnel
by
encouraging them to get their associate's degrees. The interests articulated
by
the
District and Sheriff witnesses, with the exception
of
securing FTES funding, appear to inure
primarily to the Sheriff. None
of
the articulated interests bear more than the weakest
of
relationships to "achievement
of
the District's mission."
Third, attributing managerial control over academy instructors to the District under the
facts
of
this case would contravene public policy. The District rests its claim
of
managerial
control on its contention that the instructors are "employees
of
the District" for purposes
of
calculating FTES funds. Yet, on its face, the agreement between the District and the Sheriff
appears to contravene California Code
of
Regulations, title 5, section 58051(a)(l) as
authoritatively interpreted by the Department
of
Finance (DOF). Under
DOF's
interpretation
of
that provision, an instructor is "an employee
of
the District" only
if
the instructor is
on
the
payroll
of
the District and receives a regular salary.
The District argues that the academy instructors qualify as "employees
of
the District"
notwithstanding the foregoing. 	In support
of
this argument, the District cites only one
authority, an opinion letter written by the office
of
the chancellor. Yet, there is no
authoritative ruling indicating that the agreement would be approved by the DOF. Nor is there
any indication that the Sheriff ever agreed that the District supervised the academy instructors.
Thus, the District's limited claim
of
entitlement to FTES funds does not appear to meet
the criteria set forth in the DOF regulation that is part
of
the record in this case. As the
District's assertion
of
"managerial prerogative" rests on its dubious claim that the academy
instructors are "employees" for the limited purpose of entitlement to FTES funds, it has failed
to demonstrate that negotiating with the union would "significantly abridge" a legitimate
36

managerial prerogative. Consequently, the District has failed to show why the third prong
of
the Anaheim test would not be satisfied in this case.
The Board should avoid finding an agreement
of
this type to create a legitimate
managerial prerogative when it appears to be in conflict with express DOF regulations and
other provisions
of
law. 2 Accordingly, I believe the decision to enter the agreement at issue
herein passes all three prongs
of
the Anaheim test. Thus, I would find that the District
had
a
duty to bargain over the decision.
As the CBA provides that the FTES funds are to be used, in part, for salary, I would
find that the District's entry into an agreement to spend the FTES funds associated with the
affiliation
of
the academy on construction
of
a building to be a unilateral change in a matter
within the scope
of
bargaining, in violation
of
Section 3543.S(c).
Even assuming, arguendo, that the decision to form the arrangement with the Sheriff
would fail the third prong
of
the Anaheim test and would not, therefore, be negotiable, I submit
that the District was still required to negotiate with the Federation over the effects
of
its
decision, since, on its face, the agreement between the District and Sheriff has an impact on the
availability
of
funds for salary increases.
Based on the foregoing grounds, I concur in the Board's disposition
of
this case.
2 On a similar policy note, as observed by the majority (supra, p. 9, fn. 6), Penal Code
section 832.3( c) requires that 15 percent
of
students in POST-certified basic law enforcement
courses in the community colleges be non-law-enforcement trainees
"if
they are available."
However, the academy curriculum requires students to attend class 60 hours per week, which
would be a difficult achievement for most students already carrying an ordinary academic load
and/or working in a non-law-enforcement occupation. Provisions in the District's agreement
with the Sheriff ostensibly designed to comply with Penal Code section 832( c) are
questionable, therefore, when examined in light of the record as a whole.
37

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-4082-E, Ventura County Federation
of College Teachers, Local 1828, AFL-CIO v. Ventura County Community College District, in
which all parties had the right to participate, it has been found that the Ventura County
Community College District (District) violated the Educational Employment Relations Act
(EERA), Government Code section 3543.S(c) by unilaterally contracting out the instruction of
certain courses.
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 with the Ventura County
Federation of College Teachers, Local 1828, AFL-CIO (Federation) about the decision and
effects of transferring instruction of academy courses to non-Federation members.
2. 	Denying the Federation its rights guaranteed to it by the EERA and
refusing to meet and negotiate over the transfer of work.
3. 	Denying Federation members their right to be represented by their
chosen representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF ERRA:
1. 	Upon request 	the Federation, cease allowing
members to teach academy courses. If such a request is made, this order shall be stayed for
120 days to provide the District and Federation an opportunity to meet and negotiate over the
decision and effects of transferring instruction of academy courses to non-Federation members.

2. 	Make whole any Federation member for any loss of compensation, plus
interest at the rate of seven (7) percent per annum, which they suffered as a result of the
District's transferring instruction of academy courses to non-Federation members. If any relief
is awarded, the Federation shall be entitled to any dues or fees that it would have received from
the Federation member(s).
Dated: --------- VENTURA COUNTY COMMUNITY
COLLEGE DISTRICT
By: ---------------
Authorized Agent
THIS IS AN 	~~i, ~~ 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 WITH ANY OTHER
MATERIAL.
2