San Diego Community College District (PERB 1467EA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF TEACHERS
GUILD, CALIFORNIA FEDERATION OF
TEACHERS, LOCAL 1931,
Charging Party,
V.
SAN DIEGO COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-4217-E
Request for Reconsideration
PERB Decision No. 1467
PERB Decision No.
146
7 a
April
	18,
	2003
Appearances: Gattey, Cooney & Baranic LLP by Michael P. Baranic, Attorney, for American
Federation
of
Teachers Guild, California Federation
of
Teachers, Local 1931; Liebert Cassidy
Whitmore by Bruce A. Barsook, Attorney, for San Diego 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 a request for reconsideration filed by American Federation
of
Teachers Guild,
California Federation
of
Teachers, Local 1931 (Guild)
of
the Board's decision in San Diego
Community College District (2001) PERB Decision No. 1467. In that decision, the Board
considered whether the San Diego Community College District (District) violated the
Educational Employment Relations Act (EERA)1 by prohibiting the use
of
its employee mail
1 EERA is codified at Government Code section 3540 et seq.

system and other equipment for the distribution
of
political flyers. 2 The Board held that the
District did not violate EERA and dismissed the unfair practice charge filed by the Guild.
After reviewing the entire record in this case, including the Guild's request for
reconsideration, the District's response, and the informational briefs filed by interested
parties3, the Board hereby denies the request for reconsideration.
DISCUSSION
Pursuant to PERB Regulation 32410(a):
The grounds for requesting reconsideration are limited to claims
that: (1) the decision
of
the Board itself contains prejudicial
errors
of
fact, or (2) the party has newly discovered evidence
which was not previously available and could not have been
discovered with the exercise
of
reasonable diligence.
The Guild's request for reconsideration is purportedly based on five grounds.
First, the Guild argues that the Board's decision does not distinguish between
the District's "inter-site" mail system and the District's "intra-site" mail system.
2 "Political flyers" refers only to materials "urging the defeat or support
of
any ballot
measure or candidate." (Ed. Code sec. 7054.)
3 On or about December 21, 2001, the Board received a petition to file an informational
brief from the San Mateo Community College Federation
of
Teachers AFT Local 1493,
CFT/AFT, AFL-CIO; Faculty Association
of
the California Community Colleges, Foothill-
DeAnza Faculty Association; American Federation
of
Teachers Local 2121, CFT/AFT, AFL-
CIO; Peralta Federation
of
Teachers Local 1603, CFT/AFT, AFL-CIO; and United Professors
of Marin AFT Local 1610, CFT/AFT, AFL-CIO. On or about March 28, 2002, a petition to
fiie an information brief was received from the International Federation
of
Professional and
Technical Engineers, Local 21, AFL-CIO. Pursuant to PERB Regulation 32210, both petitions
were granted on July 17, 2002 (PERB regs are codified at Cal. Code Regs., tit. 8, sec. 31001
et seq).
On or about August 27, 2002, the Board received a request to file an informational brief
and request to present oral arguments from the Los Angeles Unified School District (LAUSD).
As the Board had already began deliberations into this matter by August 2002, the petition of
LAUSD is denied. Likewise, LAUSD's request to present argument is denied as the record
and briefs in this matter adequately present the issues and positions of the parties.
2

The Guild argues that it does not seek to have the District distribute political flyers between
campuses. Rather, the Guild seeks to distribute political flyers through the "intra-site" mail
system within each campus. This ground is rejected. The use
of
the term "inter-site" was not
prejudicial. The Board's decision does not tum upon whether the political flyers are being
distributed between campuses as opposed to within a campus.
Second, the Guild argues that the Board did not make a determination that the Guild's
placement, as opposed to distribution by the District,
of
political flyers in District mailboxes
would violate Education Code section 70544 • This argument is improper because it neither
identifies a prejudicial error
of
fact nor newly discovered evidence. The Guild merely seeks to
have the Board further clarify its decision. The Board is not inclined to entertain such a
request. Our decision speaks for itself. Specifically, the Board's holding that: 	"The plain
meaning
of
Education Code section 7054 clearly prohibits the use
of
school district or
community college district funds, services, supplies, or equipment for the purpose
of
the
urging the support or defeat
of
any ballot measure or candidate," adequately resolves the issues
presently in the Guild's charge.
Third, the Guild argues that the Board did not make a determination that the Guild's
publications actually violate the provisions
of
Section 7054. Again, this is an improper ground
for reconsideration. Further, the Guild misconstrues the issue in this matter which is whether
the District violated EERA by unilaterally implementing a policy prohibiting the use
of
its
employee mail system and other equipment for the distribution
of
political flyers. 	Since it is
the legitimacy of the District's policy that is at issue, whether the Guild actually intended to
distribute such flyers is irrelevant.
All further statutory references are to the Education Code unless otherwise noted.
3

Fourth, the Guild argues that the Board failed to follow precedent by not sending this
matter to a formal hearing. This is also not a proper ground for reconsideration. As discussed
above, the issue in this matter is whether the District's unilateral implementation
of
its policy
violated EERA. As there was no dispute that the District had implemented such a policy, the
sole issue was whether the District's unilateral implementation violated EERA. This is an
issue
of
law that was properly decided without an evidentiary hearing.
Fifth, the Guild argues that the Board failed to properly consider "new" legal authority.
Specifically, the Guild argues that the Board failed to properly construe an opinion
of
the
Attorney General. Even
if
the discovery
of
"new" legal authority was a proper ground for
reconsideration, the Attorney General opinion was not "new" in the sense that it was issued
after the Board's decision. It was only "new" to the Guild which was not aware
of
the opinion
earlier. In any event, the opinion was cited by the District and thoroughly analyzed and
discussed in the Board's decision. Accordingly, this ground for reconsideration is also
rejected.
Finally, the Board turns to the arguments advanced in the informational briefs. First, it
is argued that the Board erred in its interpretation
of
Section 7054. In support, the briefs
contain a complete copy
of
the legislative history behind Education Code section 7054. 	After
reviewing the materials submitted, the Board declines to alter its ruling. The legislative history
does not evince a clear intent to allow the use
of
the District's mail system to distribute the
Guild's political flyers. 	Absent such a clear indication
of
intent, the Board must follow the
plain language of the statute.
Next, it is argued that
if
the Board is correct in its interpretation of Section 7054, then
that section is unconstitutional since the District's mailboxes are "public forums" and any
4

limitation upon their use must be "narrowly drawn to effectuate a compelling state interest."
The Board is prohibited from entertaining such an argument. Article III, section 3.5
of
the
California Constitution provides, in pertinent part:
An administrative agency, including an administrative agency
created by the Constitution or an initiative statute, has no power:
(a) To declare a statute unenforceable, or refuse to enforce a
statute, on the basis
of
it being unconstitutional unless an
appellate court has made a determination that such statute is
unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a
statute on the basis that federal law or federal regulations prohibit
the enforcement
of
such a statute unless an appellate court has
made a determination that the enforcement
of
such statute is
prohibited by federal law or federal regulations. [New sec.
adopted June 6, 1978.]
The Board is not aware
of
any appellate decision declaring Section 7054 unconstitutional.
Accordingly, the Board is bound by its plain language.
Lastly, the informational briefs advance numerous public policy arguments for allowing
the use
of
the District's mail system for distribution
of
the Guild's political flyers. It is noted
that Section 76120 provides students the right to distribute printed materials and that there is
no reason faculty should not have the same right. In addition, Section 82537 creates "civic
centers" within community colleges for the use
of
various groups, including political
associations. Further, it is argued that the goals
of
BERA require that the Guild be able to
freely communicate with its members on a wide variety
of
issues. These public policy
arguments are well taken. However, they should be addressed to the Legislature and not this
administrative body. The Board is not free to "overturn" a statute of the Legislature.
For all these reasons, the Board denies the Guild's request for reconsideration.
5

ORDER
The Guild's request for reconsideration
of
the Board's decision in San Diego
Community College District (2001) PERB Decision No. 1467 is hereby DENIED.
Members Whitehead and Neima joined in this Decision.
6