San Francisco Unified School District and City and County of San Francisco (PERB 1721E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 21, AFL-CIO,
Charging Party,
v.
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT AND CITY AND COUNTY OF
SAN FRANCISCO,
Respondent.
Case No. SF-CE-2282-E
PERB Decision No. 	1721
December 	1 3 , 	2004
Appearances: Davis & Reno by Duane W. Reno, Attorney, for International Federation of
Professional and Technical Engineers, Local 21, AFL-CIO; Martin R. Gran, Deputy City
Attorney, for San Francisco Unified School District and City and County of San Francisco.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the International Federation of Professional and Technical Engineers,
Local 21, AFL-CIO (Local 21) of a Board agent's dismissal of its unfair practice charge. The
original and amended charge allege that the San Francisco Unified School District (District)
and City and County of San Francisco (City) violated the Meyers-Milias-Brown Act (MMBA)1
by refusing to implement salary increases pursuant to a City charter process.
The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charge, the warning and dismissal letters, Local 21 's appeal and the
The MMBA is codified at Government Code section 3500, et seq.

response of the District and City. As discussed below, the Board reverses the dismissal and
remands this matter to the Office of the General Counsel for issuance of a complaint.
BACKGROUND
Overview
Local 21 is the exclusive representative of all 1650 class accountants employed by the
City. Local 21 also is the exclusive representative of all 1650 class accountants employed by
the District. Under Education Code section 45318, the District's classified employees have
merit system rights under the civil service provisions of the City charter.
The charter governs the collective bargaining rights of City employees. Under the
charter, wage increases may be submitted to arbitration once impasse is reached. Because the
District's classified employees are also part of the City's merit system, Local 21 argues that the
District is bound by any arbitration decision rendered with respect to 1650 class accountants,
regardless of whether they work for the City or District.
Education Code section 45318
According to the City's response, in the 1930's public schools within the City and
County of San Francisco were managed by a City department and non-teaching employees
were employed under the City's civil service system. In 1945, confusion over the status of
non-teaching employees prompted the Legislature to adopt the predecessor to Education Code
section 45318. According to the City, San Francisco is the only city in California to which
Education Code section 45318 applies. That section provides:
In every school district coterminous with the boundaries of
a city and county, except for those paraprofessionals excluded
from the charter provisions by a resolution adopted by the
governing board of that district pursuant to Section 45100,
employees not employed in positions requiring certification
qualifications shall be employed, if the city and county has a
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charter providing for a merit system of employment, pursuant to
the provisions of that charter providing for that system and shall,
in all respects, be subject to, and have all rights granted by, those
provisions; provided, however, that the governing board of the
school district shall have the right to fix the duties of all of its
noncertificated employees.
Thus, under Education Code section 45318, it appears that the District's non-certificated
employees, commonly referred to as "classified employees," are subject to the City charter's
merit system provisions.
Proposition B
In 1991, the electorate adopted Proposition B, which amended the City charter to
provide that the City may be allowed to bargain collectively over wages and benefits with City
employee organizations electing to do so, instead of setting salaries each year by formula.
Proposition B provides for, among under things, an arbitration panel to approve a contract if an
impasse is reached. By its own provisions, Proposition B applies to "employees of
San Francisco Unified School District... to the extent authorized by state law." Proposition B
also provides that the City is the sole negotiator on behalf of all of its departments, boards and
commissions.
Aftermath of Proposition B
From the outset after the passage of Proposition B, the District took the position that the
City was not authorized to bargain on its behalf in negotiations with Local 21. Instead, the
District insisted that it bargain directly with Local 21. Local 21 refused to negotiate with the
District. 	Instead, it continued to negotiate with the City and asserted that any arbitration award
rendered with the City would also be binding on the District.
Negotiations between Local 21 and the City reached an impasse sometime in 1993. An
arbitration panel was then convened in April 1993. On May 25, 1993, an arbitration award
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was rendered granting a wage increase. Local 21 argued that the wage increase was also
binding on the District even though the District was not privy to negotiations or the arbitration
proceeding. 	The District refused to grant the salary increases.
Court of Appeal Decision
Local 21 then sought a writ of mandate in Superior Court seeking to compel the District
to accept the terms of the arbitration award. The Superior Court denied Local 21 's petition and
held the District had an independent right to negotiate with Local 21 under the Educational
Employment Relations Act (EERA).2 Local 21 appealed the ruling to the Court of Appeal. In
rendering its decision, the court noted that this case involved the "complex interrelationship
among the California Constitution, the Education Code, the EERA and the charter."
(International Federation of Prof. & Technical Engineers v. Bunch (1995) 40 Cal.App.4th 670,
675 [46 Cal.Rptr.2d 813] (IFPT.) In finding that PERB had initial jurisdiction to decide these
complex questions, the court stated:
We agree with the trial court that the issues presented in this
case—especially the extent to which local regulation of
employment matters as prescribed by the charter might be
superseded by matters of statewide concern as set out in the
EERA—is a matter properly decided, in the first instance, by
PERB. [IFPT, at p. 676.]
. . . . . . . . . . . . . 	. . . . . .
Exclusive initial jurisdiction over matters protected or prohibited
by the EERA thereby exists in PERB, and the courts have only
appellate, as opposed to original, jurisdiction to review PERB's
decisions. This is so due to the integral association that PERB
has with school employer-employee relations and the resulting
inevitable familiarity with the specific and unique problems such
as encountered by Local 21 and the District under the new charter
amendments in this case. Given these factors, PERB is a
necessary participant in these proceedings. 	[IFPT, at p. 677.]
EERA is codified at Government Code section 3540, et seq.
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The court's decision was issued on October 30, 1995. The California Supreme Court denied
review on January 24, 1996.
Aftermath of Court Decision
Following the IFPT decision, Local 21 did not immediately file an unfair practice
charge with PERB. Instead, Local 21 and the District engaged in collective bargaining and
entered into several contracts over the years. Local 21 claims that it did not seek immediate
relief because the District agreed to voluntarily provide the same wage increases as received by
Local 21 members employed by the City.
On June 15, 2001, Local 21 wrote to the District requesting a seven percent wage
increase and bargained with the District until filing this charge on August 15, 2002.
Local 21 's Unfair Practice Charge
Local 21 now makes the same arguments it made before the court in IFPT.
Specifically, it contends that although the District is a separate legal entity from the City with
regard to educational issues, the District is a department of the City with regard to the
employment of classified employees. 	Accordingly, Local 21 argues that the District is
required to participate in arbitration proceedings under Proposition B and/or that the District is
bound by the arbitration award rendered between Local 21 and the City. In addition, Local 21
asserts that the compensation and benefits of the District's classified employees are established
pursuant to the MMBA rather than the provisions of the EERA.
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BOARD AGENT'S DISMISSAL
Jurisdiction
Local 21 argued that since the District was a department of the City, this dispute is
covered by the MMBA. 	The Board agent found no factual support for this assertion, noting
that the MMBA excludes school districts from coverage.
Timeliness
The Board agent then dismissed the remainder of the charge as untimely. 	The Board
agent noted that in IFPT, the court held that PERB had initial jurisdiction over Local 21 's
argument that the City was the appropriate bargaining agent for the District's classified
employees. That decision was issued in 1996. The present charge was not filed until 2002.
Accordingly, the Board agent found the charge untimely.
Laches
Finally, the Board agent held that even if timely, Local 21's charge should be dismissed
based on the doctrine of laches. Laches is an equitable defense that requires both unreasonable
delay and prejudice resulting from the delay. 	The party asserting and seeking to benefit from
the laches bar bears the burden of proof on these factors. 	(Mt. San Antonio Community
College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 188 [258
Cal.Rptr. 302].) Here, the District first asserted its belief that it was the appropriate bargaining
agent in 1993. 	The Court of Appeal determined PERB had initial exclusive jurisdiction over
the parties' dispute in 1995 and yet Local 21 failed to file this charge until August 15, 2002.
Had Local 21 brought this charge to PERB in 1995, then it's arguable that the District could
have spent the past seven years participating in the City's bargaining process and providing
input on City policy. Additionally, the arbitration process by which the City employees were
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granted salary increases would have also included the District's finances. 	Here, Local 21 did
not challenge the District's authority to bargain on its own behalf before PERB and instead
bargained two memoranda of understanding with the District for the 1999-2002 school years
on behalf of both the technical and protech units. 	Accordingly, the Board agent found
Local 21 's failure to file this charge earlier prejudiced the District.
LOCAL 2l'S APPEAL
Jurisdiction
On appeal, Local 21 asserts that the Board agent erred by finding that this matter is not
covered by the MMBA. Local 21 points to MMBA section 3501(c), which states:
Except as otherwise provided in this subdivision, 'public agency'
means every governmental subdivision, every district, every
public and quasi-public corporation, every public agency and
public service corporation and every town, city, county, city and
county and municipal corporation, whether incorporated or not
and whether chartered or not. As used in this chapter, 'public
agency' does not mean a school district or a county board of
education or a county superintendent of schools or a personnel
commission in a school district having a merit system as provided
in Chapter 5 (commencing with Section 45100) of Part 25 and
Chapter 4 (commencing with Section 88000) of Part 51 of the
Education Code or the State of California. 	[Emphasis added.]
Local 21 asserts that the MMBA only excludes school districts that have a merit system.
According to Local 21, the District "does not have its own merit system because it is required
by Education Code section 45318 to employ its classified employees through the City's merit
system. 	It is therefore not excluded from coverage under the MMBA."
Timeliness
Local 21 also argues on appeal that the Board agent erred by finding its charge
untimely. Local 21 notes that this current dispute does not relate to the round of bargaining at
issue in the IFPT decision. To the contrary, Local 21 admits that it has bargained with the
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District and entered into several contracts since that time. However, Local 21 insists that its
waiver of its rights in those instances does not prevent it from asserting its rights here.
(San Jacinto Unified School District (1994) PERB Decision No. 1078 (San Jacinto).) Citing to
Johnson-Bateman Co. (1989) 295 NLRB 180 [131 LRRM 1393] (Johnson-Bateman). Local 21
argues that:
[I]t is not true that a right once waived under the Act is lost
forever.... Each time the bargainable incident occurs—each time
new rules are issued—[the] union has the election of requesting
negotiations or not. An opportunity once rejected does not result
in a permanent "close out." . . . [Johnson-Bateman at p. 188.]
Thus, Local 21 insists that its charge is timely.
Laches
Finally, Local 21 argues that the Board agent erred by relying on the doctrine of laches.
The defense of laches requires prejudice, notes Local 21, and "prejudice will not be presumed;
the employer has the burden of proving the existence of prejudice." (Conti v. Board of Civil
Service Commissioners (1969) 1 Cal.3d 351, 369-70 [82 Cal.Rptr. 337].) Local 21 argues that
the District cannot show prejudice since it has been aware of Local 21's position since the
IFPT decision. Further, Local 21 argues that prejudice has not been actually shown by the
District at this stage of the proceedings. Thus, Local 21 requests that the dismissal be
reversed.
DISTRICT'S RESPONSE
The District urges that Board to sustain the dismissal. It argues that the charge is
untimely. 	Specifically, Local 21 failed to pursue its claim after the IFPT decision and waited
until now to file its charge. As Local 21 clearly knew of its remedy with PERB years ago, the
District urges the Board to sustain the dismissal.
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DISCUSSION
Jurisdiction
Local 21 raises an interesting argument on appeal. As set forth above, MMBA
section 3501(c) provides, in part:
As used in this chapter, 'public agency' does not mean a school
district or a county board of education or a county superintendent
of schools or a personnel commission in a school district having a
merit system as provided in Chapter 5 (commencing with
Section 45100) of Part 25 and Chapter 4 (commencing with
Section 88000) of Part 51 of the Education Code or the State of
California. 	[Emphasis added.]
In essence, Local 21 reads the phrase "having a merit system" as applying to all the clauses
listed before it. In other words, Local 21 asserts that the MMBA does not apply to a school
district having a merit system, a county board of education having a merit system, a county
superintendent having a merit system, etc. 	Since the District does not have a merit system,
Local 21 argues that the District itself is not excluded from coverage by the MMBA. 	This
argument must be rejected.
It is a well-settled rule of statutory construction that the term "or" has a disjunctive
meaning. (Houge v. Ford (1955) 44 Cal.2d 706, 712 [285 P.2d 257] (Houge); see also, In re
Jesusa (2004) 32 Cal.4 th 588 [10 Cal.Rptr.3d 205].) "In its ordinary sense, the function of the
word 'or' is to mark an alternative such as 'either this or that.'" (Houge at p. 712.) It is also a
well-settled rule of statutory construction that qualifying words and phrases, where no contrary
intention appears, refer solely to the last antecedent. 	(White v. County of Sacramento (1982)
31 Cal.3d 676, 680 [183 Cal.Rptr. 520].) Thus, where there is a disjunctive "or" before a final
clause with a qualifying phrase, the qualifying phrase should be interpreted as only applying to
that final clause. (See, e.g., Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876,
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881 [80 Cal.Rptr.2d 5891; Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th
87 [82 Cal.Rptr.2d 452].) To extend the application of such a qualifying phrase back past the
disjunctive "or" would violate accepted rules of statutory construction. 	(Hopkins v. Anderson
(1933) 218 Cal. 62, 65 [21 P.2d 560]; County of Los Angeles v. Graves (1930) 210 Cal. 21, 26
[290 P. 444].)
Here, applying these rules of statutory construction to MMBA section 350l(c), the
Board finds that the phrase "having a merit system" only applies to "a personnel commission
in a school district." Accordingly, a "school district", whether or not it has a merit system as
defined in MMBA section 3501 (c), is excluded from coverage by the MMBA. Thus, this
charge must be analyzed under EERA.
Timeliness
Under EERA, the statute of limitations is six months. (EERA sec. 3541.5(a).) The
Board agent found Local 21 's charge to be untimely. However, the Board notes that this
dispute does not involve the round of bargaining that was at issue in the IFPT decision. The
Board agrees that any charge relating to that round of bargaining is time-barred. 	Instead, this
charge involves the latest round of bargaining in 2002. The Board agrees with Local 21 that
even if it waived its rights with respect to previous rounds of bargaining, it has not waived its
rights for all eternity.
This assumes, of course, that Local 21 has a right to avail itself of the rights provided
by Proposition B. However, assuming that Proposition B allows the District's classified
employees to use the arbitration procedures contained therein, the fact that Local 21 did not
assert its rights once, does not prevent it from asserting its rights in the future. 	(See
San Jacinto; Hacienda La Puente Unified School District (1997) PERB Decision No. 1187;
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State of California (Employment Development Department) (1998) PERB Decision
No. 1284-S.) Accordingly, the Board finds this charge timely for purposes of issuing a
complaint.
Laches
Next, the Board also disagrees with the Board agent's finding of laches. The burden of
the charging party at this stage of the proceedings is to establish a prima facie case. The
charging party's prima facie case does not include rebutting the respondent's affirmative
defense. 	(State of California (Department of Corrections) (2003) PERB Decision No. 1579-S.)
As laches is an affirmative defense, whether the defense is established is an issue that should
be deferred to the administrative law judge (ALJ). This is especially true since establishing the
defense of laches requires a factual finding of prejudice.
Analysis of Merits
In the dismissal, the Board agent did not address the merits of the charge since its was
found to be untimely and barred by the doctrine of laches. Having rejected those findings, the
Board must now address whether Local 21 has stated a prima facie case. In essence, this case
centers around the meaning and application of Proposition B. Local 21 argues that under
Proposition B, the District is bound by the arbitration decision that issued between Local 21
and the City and/or that it may separately seek interest arbitration for its District bargaining
unit.
When interpreting a local rule, PERB has recognized that:
... where the contract language or rule is unclear or ambiguous,
the Board has held that the parties should be given an opportunity
to offer evidence to support their differing interpretations at an
evidentiary hearing. 	[County of San Joaquin (2003) PERB
Decision No. 1570-M; see also, Fullerton Joint Union School
District (2004) PERB Decision No. 1633.]
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Here, the Board finds that Local 21 has, at a minimum, established some ambiguity as to the
intent and meaning of Proposition B with respect to the role of the District in contract
negotiations. 	Specifically, Proposition B states on its face that it applies to classified
employees of the District "to the extent authorized by state law." It is unclear what this means.
However, nothing in EERA prevents an employer and employee organization from agreeing to
interest arbitration. 	Thus, there is a plausible argument that the District must submit disputes
involving its classified employees to procedures provided by Proposition B. 	Whether this is in
fact the case is an issue that the Board believes should first be addressed by an ALJ.
Accordingly, the Board reverses the dismissal and remands this matter to the Office of the
General Counsel.
In doing so, the Board notes that the complaint should issue under EERA, and not the
MMBA. As the City is presumptively not a "public school employer" within the meaning of
EERA, the complaint shall issue against the District only. However, Local 21 is free to move
to amend the complaint to include the City as a joint employer. Whether such a motion should
be granted is an issue the Board will defer to the ALJ.
ORDER
The Board REVERSES the Board agent's dismissal in Case No. SF-CE-2282-E and
REMANDS the case to the Office of the General Counsel consistent with this decision.
Chairman Duncan and Member Whitehead joined in this Decision.
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