San Jose/Evergreen Community College District * * * OVERRULED IN PART by County of Ventura (2018) PERB Decision No. 2600-M (PERB 1928E)

OVERRULED IN PART by County of Ventura (2018)
PERB Decision No. 2600-M
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JOSEPH DOHERTY,
Charging Party,
V.
SAN JOSE/EVERGREEN COMMUNITY
COLLEGE DISTRICT,
Respondent.
JAMES O'NEIL,
Charging Party,
V.
SAN JOSE/EVERGREEN COMMUNITY
COLLEGE DISTRICT,
Respondent.
Case No. SF-CE-2312-E
PERB Decision No. 1928
November 16, 2007
Case No. SF-CE-2313
Appearances: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for
Joseph Doherty and James O'Neil; Shupe & Finkelstein by John A. Shupe, Attorney, for
San Jose/Evergreen Community College District.
Before Shek, McKeag and Wesley, Members.
DECISION
McKEAG, Member: 	This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the San Jose/Evergreen Community College District (District)
of a proposed decision by an administrative law judge (ALJ). 	The charge alleged that the
District violated the Educational Employment Relations Act (EERA)1 by retaliating against
1EERA is codified at Government Code section 3540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

Joseph Doherty (Doherty) and James O'Neil (O'Neil) (collectively Charging Parties) for
seeking and receiving the assistance
of
the San Jose/Evergreen Faculty Association, American
Federation
of
Teachers, Local 6157 (Association). The Charging Parties claim this conduct
constituted a violation
of
EERA sections 3543(a) and 3543.5.
This
is
a consolidated case arising from the filing
of
unfair labor practice charges by
Doherty on January 21, 2003 and O'Neil on January 22, 2003. 	The Charging Parties are part-
time instructors who have taught various classes offered by the South Bay Regional Public
Safety Training Consortium (Consortium) since its inception. The Charging Parties allege the
District retaliated against them for obtaining assistance from the Association to assert a
statutory right to convert from temporary to probationary employees. 	In particular, the charges
allege the District, through the actions
of
the Consortium, reduced the Charging Parties' hours
and eventually ceased to employ Doherty at all because
of
their protected activity.
Although the alleged acts
of
retaliation were performed by employees
of
the
Consortium, the ALJ held the District retaliated against the Charging Parties in violation
of
EERA. 	The ALJ imputed liability to the District under a "joint employer" theory.
We have reviewed the entire record, including the unfair practice charge, the response
thereto, the amended unfair practice charge, the complaint, the post-hearing briefs, the
proposed decision, the District's exceptions and the Charging Parties' response and conclude
the ALJ erred in finding the existence
of
a joint employer relationship. Accordingly, for the
reasons set forth below, we reverse the proposed decision and dismiss the case.
2

FINDINGS OF FACT
The District is comprised
of
two colleges, Evergreen Valley College, established in
1975, and San Jose City College, established in 1921. Throughout the 1980's and early
1990'
s,
several community college districts in the Bay Area independently operated training
academies for police officers, firefighters and other public safety personnel. The District and
Gavilan Community College District (Gavilan CCD) operated such academies. During this
time, local public safety agencies sought to enroll larger numbers
of
recruits and regular
personnel into these programs. The districts, however, faced constraints in meeting the
increased demand for instruction. Two major constraints were the high cost
of
facilities and
overhead and the inability
of
districts to recapture such costs due to legal restrictions in the
state funding formulae for community colleges. 	Under a special grant in the early 1990's,
Evergreen Valley College studied a regional training cooperative as a possible solution. The
resulting study suggested the formation
of
a joint venture operating through a joint powers
agreement between member community college districts.
Creation
of
the Consortium
In 1995, the District and the Gavilan CCD agreed to create a joint powers agency that
became known as the Consortium. The organizing document for the Consortium was a joint
powers agreement (JPA Agreement) effective July 1, 1995. The JPA Agreement required the
Consortium to be governed pursuant to its bylaws. The Consortium bylaws (Bylaws)
authorized the addition
of
other community college districts and included a formula for voting
rights based on each member's level of financial commitment.
The Bylaws provide that all member districts are obligated each year to commit an
amount of "FTES they wish to generate" through the Consortium. An FTES (full time
3

equivalent student) is a unit
of
community college district funding allocated by the State based
on a full-time student equivalent. Each member district is required to provide a minimum
of
twenty five (25) FTESs for continuing participation in the Consortium.
The JPA Agreement states that the member districts entered into the joint venture for
their mutual benefit.2 Relevant to this discussion, Section 3.C
of
the JPA Agreement provides:
Instructional personnel recommended by the SBRPSTC[3] staff to
teach a course(s) offered through the Consortium shall be
employed via a contract with one
of
the participating college
districts. All personnel so approved via such contract, shall meet
the minimum qualifications for teaching in the appropriate
discipline(s) per Title Five
of
the California Administrative Code
of
Regulations. 	Such personnel shall be designated as the
instructor
of
record for courses approved and offered by each
member college. 	[Emphasis added.]
In addition to the staffing provisions in the JP A Agreement, the Bylaws provide that the
Consortium has the power "to contract with member districts for the employment
of
faculty or
staff or to directly employ non-teaching staff." The Bylaws also state "[a]ll instructional staff
shall be contracted from member districts via a written agreement with the [Consortium ]."4
The District executed such a staffing agreement (Staffing Agreement) with the Consortium,
effective July
1,
1995. Under the "Scope
of
Services" section in the Staffing Agreement, the
District "agrees to provide, through its established employment policies and procedures,
2The JPA cites the California Joint Exercise
of
Powers Act. 	(Gov. Code sec. 6500,
et seq.) Section 6502 thereof authorizes public agencies by agreement to "jointly exercise any
power common to the contracting powers." In terms of agreements to provide services,
Section 6506 provides that any
of
the parties may provide "all or a portion of the services to
the other parties," or "provide for the mutual exchange of services without payment
of
any
consideration other than such services."
3South Bay Regional Public Safety Training Consortium.
4By August 1998, there were seven member districts in the Consortium. As a matter of
policy, the curriculum of the Consortium must be approved by all of the member districts.
4

academic and classified employees to perform duties and responsibilities as required by the
JPA within [established] District job classifications." Also under the Staffing Agreement, the
District
is
required to pay all the salaries and benefits for such employees. However, all these
costs are reimbursed by the Consortium.
The Staffing Agreement, consistent with the JPA, requires all employees furnished by
the District to meet District qualifications as specified in "District position descriptions" and
be "boarded" by the District. Boarding is a certification by the District that confirms an
instructor meets the Title 5 minimum qualifications in a particular "faculty service area" (i.e.,
academic discipline). 	Being boarded
is
necessary for the reimbursement
of
an instructor's
services. While community college districts have the power to board instructors, the
Consortium does not. 	Thus, the Consortium is dependent upon its member districts to board its
instructors.
As discussed below, however, the District and the Consortium have apparently
disregarded most
of
the provisions in the JP A Agreement, the Staffing Agreement and the
Bylaws (collectively Operational Documents) regarding the employment, management and
supervision
of
the Consortium's faculty.
Organization
of
the Consortium
Dr. Rene Trujillo, Jr. (Trujillo) is the current executive director
of
the Consortium.
Cindy Bevan (Bevan), the Consortium's dean of instruction, reports to Trujillo. 	Bevan
supervises the Consortium's training coordinators. The coordinators are responsible for both
scheduling instructors and ensuring the instructor pool is adequate to satisfy the needs of the
academies. They are also responsible for ensuring the instructors in the pool have the
necessary credentials, such as being boarded by a community college district and having
5

appropriate state certifications. Presently, the selection, hiring and retention
of
instructors is
the sole responsibility
of
the Consortium.
After recruiting the instructors, the coordinators pass them on to one
of
the community
college districts for boarding. At present, 90 percent
of
the instructors are boarded through the
District. 	The instructors,
of
which there are approximately 250 to 300, are assigned by the
coordinators to teach various classes. Certain courses, such
as
Basic Academy, consist
of
several blocks
of
instruction covering different topics. 	These blocks
of
instructional hours are
scheduled up to six months in advance.
Hiring Activities by the Consortium
District Vice-Chancellor for Administrative Services, Michael Hill (Hill), testified
about the development
of
the Consortium. Hill explained that initially, a core group
of
employees who were drawn from the District and Gavilan CCD served as the Consortium's
administrative employees. The founding members believed that to sever existing academy
employees and require them to be hired by the Consortium would undermine employee
organization support for the fledgling effort. Thus, the academies were initially run with
existing employees
of
the two districts. This arrangement also assisted the Consortium in
controlling costs.5
Notwithstanding the employment provisions in the Operational Documents, the
Consortium began to hire instructors on its own in 1997 .6 The District never challenged this
5Currently the Consortium conducts training at three academy sites, located at
Evergreen College, Gavilan CCD and College of San Mateo.
6The District claims the July 1995 contract, in particular the provisions stating that
employees provided by the District were not Consortium employees, was rescinded in a
de facto fashion by this new hiring practice. 	Clearly, these provisions were disregarded by the
District and the Consortium. However, since we conclude below that the conduct of the parties
6

practice. Also in 1997, the Consortium asked classified employees provided by the District to
become Consortium employees. Two elected to remain District employees, but only one
continues to work for the Consortium. Currently, there are approximately 30 classified
employees
of
the Consortium.
The District's Control Over Consortium Faculty
The District recognizes the Association as the exclusive representative for the District's
faculty. 7 The District's faculty, including its part-time faculty, are paid in accordance with the
collective bargaining agreement (CBA) between the District and the Association.
The Staffing Agreement states that employees provided to the Consortium "shall not be
considered employees
of
the [Consortium], but
of
the District, for purposes
of
seniority,
placement or advancement on the District salary schedule or accruing any other rights or
privileges afforded District employees under District Collective Bargaining Agreements and
Policies." However, the Consortium's instructors are not paid in accordance with the salary
schedule in the CBA. Rather, their rate
of
pay is set by the Consortium.8
Consistent with the Staffing Agreement, the District provides payroll services to the
Consortium. Thus, the Consortium's instructors are paid by a check issued by the District.
However, the Consortium sets salaries, notifies the District
of
these salaries and reimburses the
District in full for the salaries remunerated by the District to the Consortium instructors. This
in this case better reflects the true nature
of
employment relationship between the parties, we
need not decide whether these provisions were actually rescinded by this new hiring practice.
7The Consortium's faculty is excluded from the bargaining unit for the District's
faculty.
8The parties stipulated that any similarity in compensation between the Consortium's
instructors and the District's instructors is by coincidence.
7

includes reimbursement for benefits, including, but not limited to, California State Teachers
Retirement System (STRS) contributions, workers compensation insurance and medical
benefits. The Consortium also pays the District for its costs incurred in performing its payroll
services.
With regard to record keeping, the District does not maintain payroll records for the
Consortium's faculty. 	Those records are maintained by the Consortium. 	Similarly, the District
does not maintain personnel files for the Consortium's faculty. 	Rather, those files are
maintained by the Consortium. Indeed, the District does not even have access to those
personnel files.
The Staffing Agreement also provides that evaluations
of
Consortium faculty will be
done in accordance with District policies. However, the District does not participate in the
evaluation
of
the Consortium faculty. 	Moreover, although the CBA contains provisions
regarding the review
of
the District's faculty, those evaluation procedures have not been
utilized for the Consortium's faculty.9
Further, the District does not participate in hiring and/or firing decisions, setting
schedules, setting salaries, disciplining, managing or otherwise supervising the Consortium's
faculty. 10 These actions are all performed by Consortium staff, and they are performed without
reference to the CBA. Indeed, there is nothing in the record to suggest that the Consortium's
instructors enjoy any
of
the rights or privileges granted the District's faculty under the CBA.
It is noteworthy that the Consortium does not evaluate its instructors in any formal
sense. 	However, student evaluations are handed out, collected and reviewed by the training
coordinators.
10The District did, however, initially hire the Charging Parties prior to the creation ofthe Consortium.
8

Joseph Doherty's Employment History
Doherty was a firefighter employed by the Redwood City Fire Department until he took
a work-related, disability retirement from service. Doherty has experience
as
a firefighter, fire
truck engineer and hazardous materials specialist. Doherty was boarded by the District's
governing board in December 1994. He was hired by the District in January 1995 after
submitting an employment application form to Evergreen Valley College for a position at the
Criminal Justice Training Center. His first teaching assignment was in the District's public
safety training academy. 	Doherty later accepted teaching assignments in the Gavilan CCD and
the San Mateo Community College District. He was a training coordinator for the Consortium
from 1998 to early 2002.
Doherty testified that all
of
his work for the District since July
of
1995 has been in
connection with the Consortium. For this work, Doherty was paid through payroll checks
issued by the District. He also received a yearly W-2 statement from the District. Both the
District and Gavilan CCD have made contributions to his STRS account, but these
contributions are fully reimbursed by the Consortium.
James O'Neil' s Employment History
O'Neil has been employed as a reserve police officer with the Brisbane Police
Department. 	O'Neil has an associate degree in general education from College of San Mateo
and a bachelor's degree in management from St. Mary's College. In 1994, he was hired by the
District to be an instructor in the communications dispatcher academy. 	O'Neil is boarded
through the District. His teaching locations and method of compensation have been similar to
those of Doherty's. As with Doherty, the District contributed to O'Neil's STRS account.
0 'Neil was also a training coordinator for a brief period in 2002.
9

The 190-Hour Rule
The basis for this dispute is an unwritten Consortium policy that imposes a 190-hour
cap on instructional time by instructors within any college semester. This is the equivalent to a
60 percent full-time load at a community college. 	Although Trujillo testified that the rule was
enforced primarily in deference to the member districts because
of
unspecified "audit
concerns," Doherty apparently understood, or was told by Bevan, that the rule was for the
benefit
of
the member districts. However, according to Bevan, during a discussion regarding
the applicability
of
the rule, Doherty told her that the rule should not apply to him because he
was an employee
of
the Consortium, not the District.
The genesis
of
this rule is likely Education Code section 87482.5(a)
11
which provides as
follows:
Notwithstanding any other provision
of
law, any person who is
employed to teach adult or community college classes for not
more than 60 percent
of
the hours per week considered a full-time
assignment for regular employees having comparable duties shall
be classified as a temporary employee, and shall not become a
contract employee under Section 87604.
The Consortium's payroll department monitors the hours worked by its instructors.
When an instructor reaches 90 to 100 hours, the instructor's name is put on a watch list.
Typically, when the limit is reached, the problem is resolved by some type
of
voluntary
compliance on the part
of
the instructor. However, on certain occasions, coordinators have
been required to go to a classroom and remove instructors from the training to prevent them
from going over the limit.
11
On August 7, 2003, the Charging Parties filed a Verified Petition for Writ ofMandamus seeking reclassification to probationary status based on, among other sections,
Education Code section 87482.S(a).
10

Basis
of
Dispute
In early 2002, the Charging Parties began to question the 190-hour rule. Eventually, by
letter dated August 26, 2002, Association Attorney, Robert Bezmek, sent a letter to both the
District and the Consortium asserting the Charging Parties should be reclassified to
probationary employees because they worked in excess
of
the 60 percent limit in several
of
the
preceding semesters. It is the alleged conduct
of
several Consortium employees both before
and after the issuance
of
the August 26, 2002, letter that forms the basis
of
the Charging
Parties' retaliation claim. 	Specifically, the Charging Parties claim that their teaching hours
were reduced by certain Consortium employees in retaliation for the Charging Parties' claim to
be reclassified.
12
However, because we conclude below there is no joint employer relationship
between the District and the Consortium, the District may not be held accountable for the
alleged acts
of
the Consortium employees. Accordingly, we need not include a full recitation
of
those events herein.
ISSUES
1.	
Is the Consortium a joint employer with the District for purposes
of
PERB's
ability to provide a remedy in this case?
2. 	Did the District retaliate against Doherty and O'Neil because
of
protected
activity related to the enforcement
of
the 190-hour rule?
DISCUSSION
As stated above, the actions
of
certain Consortium employees form the basis
of
the
Charging Parties' retaliation claim. Thus, the threshold issue in this case is whether the
12
The Charging Parties' claim is based solely on the alleged acts of Consortium
employees and not the conduct of the District employees.
11

District can be held accountable for the actions
of
the Consortium. The Charging Parties assert
the District
is
accountable under a joint employer theory. We disagree.
The District and the Consortium are not Joint Employers
It is well established that an employee may have more than one employer controlling
the terms and conditions
of
his or her employment. 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 [262 Cal.Rptr 158], quoting NLRB v.
Browning-Ferris Industries, Inc. (3rd Cir. 1982)
691
F.2d 1117, 1124 [111 LRRM 2748]
(Browning-Ferris); Regents
of
the University
of
California (1999) PERB Decision
No. Ad-293-H.) A joint employer theory does not depend upon the existence
of
a single
integrated enterprise; rather, it assumes the enterprises are independent legal entities that have
"historically chosen to handle jointly
...
important aspects
of
their employer-employee
relationship." (Browning-Ferris, at
p.
1122, quoting NLRB
v.
Checker Cab Co. (1966) 367
F.2d 692, 698.) Consequently, these cases focus on the level
of
control exerted over the
employees by the enterprises in question.
In the instant case, the Consortium, without input or assistance from the District,
selected, evaluated, scheduled, supervised and counseled the Charging Parties. The
Consortium set policies, determined what classes were offered, assigned instructors to teach
the classes, and managed most,
if
not all aspects of the Charging Parties' employment as
instructors at the Consortium. Additionally, the Consortium, and not the District, controlled
12

and maintained the Charging Parties' personnel files and payroll records. Indeed, according to
Trujillo, the District does not even have access to the Charging Parties' personnel records.
With regard to salaries, the Consortium set the rate
of
pay for the Charging Parties
without reference to the District's salary schedule, and those rates are different than the rates
paid to the District's instructors. Although the Charging Parties were paid by checks issued by
the District, the District's role was that
of
a payroll service provider. The Consortium
reimbursed the District for all costs associated with the checks, including salary, benefits and
administrative costs. Thus, the Consortium, and not the District, actually bore the burden
of
paying the costs associated with Charging Parties.
Based on the foregoing, we find the District, although it initially hired and boarded the
Charging Parties, ceded virtually all control over them to the Consortium. Accordingly, we
conclude the District and the Consortium are not joint employers under the facts
of
this case.
Boarding by the District
As noted above, the District "boarded" both Doherty and O'Neil and continues to board
the vast majority
of
the Consortium's instructors. Boarding is a process whereby the District
determines whether a prospective instructor meets the minimum qualifications to teach a class.
Admittedly, boarding is significant because it is a necessary prerequisite to drawing state
apportionment. However, being boarded does not automatically qualify a prospective
instructor to teach a class. In some cases, additional requirements must be met. For example,
the Commission on Peace Officer Standards and Training (POST) requires an additional
certificate to teach certain classes. 	Consequently, boarding is only one aspect of the overall
hiring process.
13

Clearly, the boarding process constitutes legitimate indicia
of
District control over the
Charging Parties. When coupled with the fact that the District initially hired the Charging
Parties, there
is
no question that the District exercised some initial control over the Charging
Parties. However, that control ceased when the Charging Parties began working for the
Consortium. In light
of
the fact that the Consortium exerted almost exclusive control over the
Charging Parties during the seven years they taught Consortium classes, we conclude the
District's initial acts
of
control over the Charging Parties fail to meet the level
of
substantial
control necessary to support a finding
of
a joint employer relationship in this case.
The Contract Language is not Controlling in this Case
In concluding the District and the Consortium were joint employers, the ALJ relied
heavily on the language in the Operational Documents. As stated above, both the JP A
Agreement and the Bylaws require the Consortium to employ instructors via contract with one
of
the member districts. Moreover, the Staffing Agreement provides as follows:
Employees provided to the JP A shall not be considered
employees
of
the JP A, but
of
the District, for purposes
ofseniority, placement or advancement on the District salary
schedule or accruing any other rights or privileges afforded
District employees under District Collective Bargaining
Agreements and Policies.
The Board, however, is not necessarily bound by contract language when determining
the existence
of
a joint employer relationship. As explained in Ventura County Community
College District (2003) PERB Decision No. 1547 (Ventura):
The rights guaranteed to employees by EERA 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 EERA.
14

In this case, notwithstanding the JP A Agreement, the Consortium has been hiring
instructors since 1997. Further, notwithstanding the Staffing Agreement, the instructors are
not paid in accordance with the District's salary schedule, nor do they derive any other rights
or privileges from the District's CBA.
Clearly, the actions
of
the parties since 1997 has been inconsistent with the express
language
of
the Operational Documents. 	In our opinion, these actions better reflect the true
nature
of
the employment relationship between the parties. Here, the District and the
Consortium have consistently and repeatedly disregarded the employment provisions
in
the
Operational Documents. Thus, the mere fact that the Operational Documents describe the
instructors as employees
of
the District does not, in light
of
this conduct, manufacture a joint
employer situation. As stated above, the key issue in joint employer cases is the level
of
control over the shared employees. 	Because we conclude the District exercised little control
over the Charging Parties, this contract language, which has been largely ignored and routinely
breached, is insufficient to create a joint employer situation between the District and the
Consortium.
The Primary Focus in Joint Employer Situations is Control
of
the Employees
In addition to the contract language, the ALJ found the interrelationship between the
parties persuasive. According to the ALJ:
[T]he short answer here is that the Consortium and the District
have a necessarily co-dependent relationship: 	without the District
to board the instructors, sanction the courses, and commit its
FTES funding, the Consortium would be unable to assign or
compensate instructors in the academies' courses
....
While it is
true that the question
of
for whose primary benefit the academies
serve, the District or Consortium, may be a debatable point at this
juncture, the Consortium would cease to operate but for its
15

continued affiliation with the member community college
31
districtsY
A joint employer situation, however, does not exist merely because there is an intimate
connection between the purposes
of
an exempt employer and the services provided by a non-
exempt employer. As stated above, when assessing whether a joint employer situation exists,
the central focus is the level
of
control each entity exerts over the shared employees.
The "co-dependent" relationship discussed in the proposed decision addresses the
relationship between the parties, and not the level
of
control the District imposes on the
Charging Parties. Because it only tangentially addresses the District's control over the
Charging Parties, exploration
of
the "co-dependent" relationship has limited probative value in
determining whether a joint employer situation exists. 	Consequently, we conclude the ALJ's
reliance on these factors is misplaced.
In reaching his conclusion, the ALJ also relied on Ventura. In that case, PERB held
that a county sheriff and a community college district were joint employers
of
instructors
teaching in a basic police training, POST-certified academy, which had been previously
operated solely by the sheriff. The two employers negotiated an affiliation agreement. 	The
agreement purported to treat the instructors as not being employees
of
the community college
district. However, PERB noted other factors to support the proposition that the community
college district treated the instructors as employees. In so doing, the Board in Ventura found
that the instructors were "Sheriff's employees in many respects" and also community college
district employees within the meaning
of
EERA.
1 Joint powers authorities, by their very nature, owe their existence to the continued
support of their member agencies. We, therefore, find this factor to be of little probative value.
16

Relying on Ventura, the dissent argues the Consortium and the District should be
deemed joint employers based on the Operational Documents and the FTES regulations. We
disagree.
As discussed above, the mere existence
of
the Operational Documents is not dispositive
in this case. Rather, the key inquiry in joint employer cases
is
the level
of
actual control
exerted over the shared employees. Actual control, however, was not at issue in Ventura.
Rather, Ventura merely assumes that the community college district exercised a significant
level
of
"actual control" over the employees in question.
In marked contrast, the District's actual control over the Charging Parties is the central
issue in this case. Here, the District ceded to the Consortium most,
if
not all, "actual control"
over the terms and conditions
of
the Charging Parties' employment. Thus, while the
Operational Documents provide legitimate indicia
of
control by the District they do not compel
the finding
of
a joint employer relationship in light
of
the District's conduct.
In addition to the Operational Documents, the dissent relies, in part, on the FTES
regulations in finding the existence
of
a joint employer relationship. According to the dissent,
our decision would create an "unwarranted safe harbor" which would provide school
employers with "an excuse not to fulfill its duties to control and direct District employee who
are consortium instructors, obligations which are concomitant to its receipt of state funding."
The District's compliance with its state funding obligations, however, is far beyond
PERB's jurisdiction. (See Wilmar Union Elementary School District (2000) PERB Decision
No. 1371.) Therefore, what the District should or should not be doing in connection with these
obligations is irrelevant to our resolution of this matter. Instead, the issue in this case is
17

whether a joint employer situation exists between the District and the Consortium, and that
determination is made by examining the level
of
control the parties exert over the employees.
It is also noteworthy that the impact
of
the FTES regulations on the instant case was
never alleged in the moving papers, argued by the parties or considered by the ALJ. 	As
discussed above, an FTES is a unit
of
community college district funding allocated by the state
based on a full-time student equivalent. 	Clearly, community college funding mechanisms fall
well outside PERB's area
of
expertise. Thus, we believe the dissent's sua sponte analysis
of
the FTES regulations is unpersuasive.
As stated above, the key inquiry in this case is the level
of
control exerted by the
District over the employees. 	Based on our review
of
the relevant facts, including, but not
limited to, the impact
of
the Operational Documents, we find the District did not exert a
significant degree
of
actual control over the Charging Parties. Accordingly, we hold a joint
employer situation does not exist in this case.
CONCLUSION
In order to establish a joint employer situation, it must be shown that the District
exerted a significant degree
of
control over the Charging Parties' terms and conditions
of
employment. 	When looking at the totality
of
the evidence, the Charging Parties have simply
failed to establish that the District exerted such control. Indeed, based on our review, we find
the District, after boarding Doherty and O'Neil, essentially became little more than a payroll
service provider to the Charging Parties. Accordingly, we conclude there is no joint employer
relationship between the Consortium and the District. Because the underlying retaliation
charge is based solely on the alleged acts of certain Consortium employees, the lack of a joint
18

employer relationship is fatal to the Charging Parties case. Accordingly, we reverse the
decision
of
the ALJ and dismiss the case.
ORDER
The unfair practice charges and complaints in Case Nos. SF-CE-2312-E and
SF-CE-2313-E are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Member Wesley joined in this Decision.
Member Shek's dissent begins on page 20.
19

SHEK, Member, dissenting: I respectfully dissent from the majority decision and order
to dismiss the unfair practice charge in this case. The majority finds that the
San Jose/Evergreen Community College District (District) was not an employer of the
charging parties, Joseph Doherty (Doherty) and James O'Neil (O'Neil), in their capacities as
instructors at the South Bay Regional Public Safety Training Consortium (Consortium or JP A).
The majority's position is summarized poignantly in the following passage:
Clearly, the actions of the parties since 1997 has been
inconsistent with the express language of the Operational
Documents. In our opinion, these actions better reflect the true
nature of the employment relationship between the parties. Here,
the District and the Consortium have consistently and repeatedly
disregarded the employment provisions in the Operational
Documents. Thus, the mere fact the Operation Documents
describe the instructors as employees of the District does not, in
light of this conduct, manufacture a joint employer situation. As
stated above, the key issue in joint employer cases is the level of
control over the shared employees. 	Because we conclude the
District exercised little control over the Charging Parties, this
contract language, which has been largely ignored and routinely
breached, is insufficient to create a joint employer situation
between the District and the Consortium.
(Majority opn., at p. 15, emphasis added.)
In my opinion, the majority's rationale stated above would provide an unwarranted safe
harbor for the District, which would otherwise be subject to the jurisdiction of the Educational
Employment Relations Act (EERA) pursuant to the provisions of full time equivalent student
(FTES) regulations1 and the Operational Documents,2 if not for the fact that it had
"consistently and repeatedly disregarded ... largely ignored and routinely breached" the
contract language of the employment provisions in the Operational Documents.
1California Code of Regulations, title 5, section 5805l(a)(l) and section 58058(b).
2By "Operational Documents," the majority refers to the: 	(1) Staffing Agreement
between the Consortium and the District (Staffing Agreement), (2) Consortium Bylaws
(Bylaws), and (3) Joint Powers Agreement among multiple community college districts
establishing the Consortium (JPA Agreement).
20

(Majority opn., at
p.
15.) Based on the analysis that follows, I believe that the majority's
interpretation
of
the law and the Operational Documents would give the District an excuse not
to fulfill its duties to control and direct District employees who are Consortium instructors -
obligations which are concomitant to its receipt
of
state funding. 	There is no allegation that
the parties officially terminated3 any
of
the agreements, notwithstanding the District's alleged
abandonment
of
the governing terms
of
the Operational Documents. I would thus find these
agreements to be still operative since the Consortium's share
of
state FTES funding depends
upon the District's retention
of
control over the employees. More significantly, the charging
parties would lack protection in the absence
of
PERB's
4 assertion
of
jurisdiction. The
majority's finding that the District is not an employer
of
the charging parties may leave them
without a PERB remedy. 5 I submit this would frustrate the intent
of
the law.
3The Staffing Agreement provided that the term
of
the agreement shall be for a period
commencing on July 1, 1995 and will continue thereafter, until terminated by either the District
or the JP A. Either party may terminate this agreement by providing written notification
...
at
least 60 days prior to June 30th
of
any year. (Staffing Agreement, sec. 2.)
The JP A Agreement provides that a two-thirds majority
of
the members
of
the
agreement may terminate the agreement with 60 days advanced notice. (JP A Agreement, sec.
11.A.)
4Public Employment Relations Board (PERB or Board).
5The Consortium, as a public joint powers agency, has heretofore been outside
of
PERB's jurisdiction because they are not "employers" under the EERA definition. (North
Orange County Regional Occupational Program (1990) PERB Decision No. 857.) Although
there is pending legislation to amend the EERA to include public school district JP A's within
the definition
of
"employer" (A.B. 1463 (2007)), such legislation would have to apply
retroactively to affect this case. I would therefore echo the concerns
of
the Board in Clovis
Unified School District (2002) PERB Decision No. 1504, which stated in dicta that
"It
is
troubling that a group of school districts may legally join together in a way that evades EERA
and results in the loss
of
employees' statutory rights." (Id., at p. 15, fn. 11.)
Furthermore, I would note that the administrative law judge's (ALJ) proposed remedy
did not include reinstatement of the charging parties. Instead, he ordered the District and its
representatives to "recognize Doherty and O'Neil as instructors in good standing as to all
disciplines in which they had previously instructed;" and to make them "whole for lost
21

I do not disagree with the majority's conclusion that the Consortium is also an
employer of the charging parties. 	I would find, however, that the District is an employer of
the charging parties based upon FTES funding regulations and the Operational Documents,
and that the Consortium and the District are joint employers.
The Consortium is a joint venture created through the JP A Agreement among member
community college districts. Pursuant to the JP A Agreement, the District is to pay all
employee salaries and benefits, and simultaneously bill the Consortium for these costs.
The Consortium in turn is funded through the yearly :financial commitment from member
community college districts that obtain their FTES funding from the state.
State regulations provide that to qualify for state funds, a community college district
may contract for instruction to be "provided" by a public agency, such as the Consortium,
if the courses are provided "under the immediate supervision and control of an academic
employee of the district." (Cal. Code Regs., tit. 5, sec. 58051(a)(l), emphasis added.)
Such contracts, however, shall specify that the District has the right to control and direct the
instructional staff furnished by the Consortium. (Cal. Code Regs., tit. 5, sec. 58058(b) 6 .)
benefits, monetary and otherwise, including back pay from January 1, 2003, and interest at the
rate of 7 percent per annum." I believe that this, in addition to the cease and desist order to the
District, would have been an appropriate remedy under the circumstances.
6California Code of Regulations, title 5, section 58058 provides, as follows:
(a) A person is an 'employee of the district' within the meaning
of subdivision (a)(l) of Section 5 8051 if:
( 1) The district has the primary right to control and direct the
person's activities during the time such person is serving the
district; and
(2) A contract exists between the person and the district, indicia
of which may include provisions which specify the terms and
conditions of work, salary and other compensation, work to be
performed, and employment classification; and,
22

"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."
(Cal. Code Regs., tit. 5, sec. 58058(b), emphasis added.)
Based upon these FTES regulations, specifically Cal. Code Regs., tit.
5,
secs.
5805l(a)(l) and 58058(b), the Board held that a community college district and the county
sheriff were joint employers in Ventura County Community College District (2003) PERB
Decision No. 1547, at pp. 22-23 (Ventura). In Ventura, the Board primarily relied on the
funding prerequisite under Section 5 805 S(b) that requires the District to maintain "the primary
right to control and direct the activities
of'
the instructional staff
of
the public entity with which
it contracts to support its finding
of
joint employer status. (Ventura, at p. 22.) In correctly
finding that Ventura was controlling, the ALJ in the present case stated in the proposed decision
that the key point in Ventura was the Board's reliance on the provisions pertaining to
qualifications for community college district FTES in determining that instructors
of
basic
police training were employees
of
the community college district.7
(3) The district compensates the person according to an adopted
salary or wage schedule which com plies with the provisions
of
Article 8 (commencing with Section 87801), Chapter 3, Part
51
of
the Education Code.
(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)( 1) 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.
7The ALJ stated in the proposed decision, in pertinent part:
23

In the present case, the Staffing Agreement states that the "assignment, direction,
evaluation and other supervisory responsibilities
of
District employees provided to the JP A
will be done in accordance with policies and procedures
of
the District." (Staffing Agreement,
sec.
1,
emphasis added.) The Staffing Agreement further states that the District
is
the employer
of
instructional staff such as Doherty and O'Neill for certain purposes.8 Moreover, the
Operational Documents do not authorize the Consortium to hire instructional staff directly,
and instead require instructors to be hired via an agreement with one
of
the member districts.9
The two employers negotiated an affiliation agreement. 	While
that agreement purported to treat the instructors as not being
employees
of
the community college district, PERB noted that
other provisions did treat them as employees, most importantly
for the purpose
of
qualifying for community college district
FTES funding. 	This point was key in the Board's decision. 	I
conclude for reasons explained below that Ventura is controlling.
In my view, the short answer here is that the Consortium and the
District have a necessarily co-dependent relationship: without the
District to board the instructors, sanction the courses, and commit
its FTES funding, the Consortium would be unable to assign or
compensate instructors in the academies' courses.
8"Employees provided to the JP A shall not be considered employees
of
the JP A, but ofthe District, for purposes
of
seniority, placement or advancement on the District salary
schedule or accruing any other rights or privileges afforded District employees under District
Collective Bargaining Agreements and Policies." (Staffing Agreement, sec. 1.)
9The Bylaws clearly provide that "All instructional staff shall be contracted from
member districts via a written agreement with the JPA." (Bylaws, sec. VI.B.) The JPA
Agreement establishing the Consortium, effective July
1,
1995, provides that member districts
shall recommend instructional personnel for the Consortium, and that such personnel "shall be
employed via a contract with one of the participating college districts. All personnel so
approved via such contract, shall meet the minimum qualifications for teaching in the
appropriate discipline(s)." (JPA Agreement, sec. 3.C.) The District, as a member college,
approves and offers courses through the Consortium. The instructional personnel shall be
designated as the instructor of record for the approved and offered courses. (JP A Agreement,
sec. 3.C.) The JPA Agreement also provides that the District agrees "to provide, through its
established employment policies and procedures, academic and classified employees to
24

Based upon these documents, the argument in favor
of
finding that the District here is a joint
employer
of
the Consortium instructional staff is even more persuasive than the argument in
favor
of
joint employer status in Ventura.
10
I would find that under California Code
of
Regulations, Title 5, section 58051(a) and
section 58058(b
),
the District is not free to ignore the terms
of
the Operational Documents after
accepting state funding that
is
conditioned upon the District's compliance with the terms and
conditions stated therein. In abiding by the provisions
of
the regulations, the District is
obligated to exert the primary right to control and direct the activities
of
the instructional staff
who are furnished by the Consortium and under contract with the District. There is no
statutory authorization for the District to delegate or transfer its right to supervise those
employees. The right to control therefore legally remains with the District despite its decision
to refrain from exercising this right. Considering the plain language
of
Sections 58051 (a)(l)
and 58058(b ), stating that the District is also an employer, which is required to maintain the
primary right to control and direct the activities
of
the employees, and the conforming
language in the Operational Documents, I would find that the District is also an employer for
the purposes of the EERA.
perform duties and responsibilities as required by the JP A within established District job
classifications." (JPA Agreement, sec. 1.)
10
In the present case, the Operational Documents provide that the District shall be the
employer. 	In contrast, there was a contractual provision in Ventura stating that the academy
instructors "shall be considered employees of the Sheriff," not the district. (Ventura, at p. 20.)
The Board stated in Ventura that "[t]he rights guaranteed to employees by EERA cannot be
abrogated unilaterally by an employer through a cleverly written contract with a third party."
In the present case, the District issued the instructors' paychecks and W-2 forms, although it
was reimbursed by the Consortium, which in turn received its funding from state FTES funds
obtained by the member districts. In Ventura, the sheriff paid the instructors. (Id., at pp. 4-8.)
Therefore, comparing the facts of this case to those of Ventura, the argument that the District
and Consortium were joint employers is even more persuasive than the argument for joint
employer status in Ventura.
25

The majority refers to the decision in United Public Employees v. Public Employment
Relations Board (1989) 213 Cal.App.3d 1119, 1128 [262 Cal.Rptr. 158] (United Public
Employees), citing NLRB
v.
Browning Ferris Industries (3d Cir. 1982)
691
F.2d 1117, 1124
[
111
LRRM 2748], in stating that 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."
It
is
noteworthy that the court in United Public Employees
reversed a PERB decision holding that the San Francisco Community College District
(SF District) was not an employer
of
the classified employees.	
It
referred to the language in
the Education Code providing that the employees at issue shall be employed "pursuant to the
provisions
of
[the City
of
San Francisco] charter
...
provided, however, that the governing
board
of
the district shall have the right to fix the duties
of
all
of
its noncertificated
employees.'' (Id., at
p.
1125, citing Cal. Educ. Code sec. 88000, emphasis added.) Based upon
the proviso in the Education Code, the court held that the SF District was also the employer
of
noncertificated employees working at the college. The court stated, "The only way to give
effect to such language is to interpret it to mean that a District can also be the employer
of
noncertificated employees." (United Public Employees, pp. 1127-1128, emphasis added.) The
court reasoned that "such interpretation also adheres to the above cited rules that a proviso
conditions the general language
of
the statute and a specific provision prevails over a general
provision." (Id., at p. 1128.) This portion of the United Public Employees decision indicates
that the statutory language is controlling.
Similarly, the language in California Code of Regulations, Title 5, section 58058(b)
states that if the District maintains the "primary right to control and direct the activities of''
a Consortium employee, then the employee "will continue to be an employee of a public or
26

private agency, while at the same time qualifying as an employee
of
the district." (Emphasis
added.) Additionally, the terms
of
the Staffing Agreement expressly refer to the instructional
staff as "District employees provided to the JPA." (Emphasis added.) Based upon the
provisions in both the regulations and the Operational Documents in this case, I would
therefore find the District to be also an employer
of
the charging parties, pursuant to United
Public Employees.
Finally, the District's decision to relinquish certain control over the instructional staff
to the Consortium during the relevant time should not shield it from liability based upon the
decision in Marysville Joint Unified School District (1983) PERB Decision No. 3I 4
(Marysville). In that case, PERB held that there is no unilateral change
if
an employer begins
exercising a contractual right that it had not exercised in the past. Applying Marysville to the
present case, the language
of
the Operational Documents would allow the District to take over
all
of
the employer functions at any time, even
if
it does not have a past practice
of
exercising
its contractual rights. The District's status as an employer therefore remains unchanged
regardless
of
the level
of
actual control it decides to exercise at any given time.
In summary, the language
of
the pertinent regulations, and the terms and conditions
of
the Operational Documents define the relationship
of
the parties. 	Based on the above
analysis, I would conclude that the District and the Consortium are joint employers.
27