San Francisco Unified School District (PERB 2040E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED EDUCATORS OF SAN FRANCISCO,
Charging Party,
V.
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. SF-CE-2742-E
PERB Decision No. 2040
June 23, 2009
Appearance: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for United
Educators of San Francisco.
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by United Educators of San Francisco (UESF) of
a Board agent's dismissal of its unfair practice charge. The charge alleged that the San
Francisco Unified School District (District) violated the Education Code and the Educational
Employment Relations Act (EERA)1 by failing to classify teachers designated as Site Support
Substitutes and Core Substitutes as probationary employees. The Board agent dismissed the
charge for lack of jurisdiction and failure to state a prima facie case of an unlawful unilateral
change by the District.
The Board has reviewed the dismissal and the record in light of UESF' s appeal and the
relevant law. Based on this review, the Board affirms the dismissal of the charge for the
reasons discussed below.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

BACKGROUND
In addition to traditional day-to-day substitute teachers, the 2007-2010 collective
bargaining agreement between UESF and the District provides for two special categories
of
substitute teachers: 	Site Support Substitutes and Core Substitutes. Both categories are
assigned to underperforming schools in the District. Site Support Substitutes are assigned to a
single school for the entire year, while Core Substitutes fill positions at various schools as
needed.
On February 26, 2008, the District's governing board adopted a resolution to layoff
certain certificated employees. On April 8 and
9,
2008, a reduction in force hearing was held
pursuant to Education Code section 44949. During the hearing, the parties stipulated that Site
Support and Core Substitutes "will be classified as probationary employees for the purposes
of
seniority." Ultimately, no teachers were laid off by the District based on the February 26, 2008
resolution.
On July
1,
2008, the District began sending Site Support and Core Substitutes
employment contracts for the new school year which classified them as temporary employees.
On August 27, 2008, UESF filed a petition for writ
of
mandate in San Francisco Superior
Court to compel the District to classify Site Support and Core Substitutes as probationary or
permanent employees. The District demurred to the petition, asserting that PERB has
exclusive initial jurisdiction over the matter and that UESF failed to exhaust its administrative
remedies with PERB before filing the petition. On December 18, 2008, the superior court
sustained the District's demurrer, finding that "[t]he Court has no jurisdiction
of
the subject
of
the causes
of
action alleged in the pleading."
Meanwhile, on November 18, 2008, UESF filed its unfair practice charge alleging that
the District violated the Education Code and EERA by failing to classify Site Support and Core
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Substitutes as probationary employees.2 The Board agent dismissed the charge for lack of
jurisdiction and failure to state a prima facie case of an unlawful unilateral change by the
District. On appeal, UESF admits it "has no arguments to make in contradiction to the
Regional Attorney's arguments set forth in the dismissal letter" and indicates that the appeal
was filed merely to exhaust UESF's administrative remedies.
DISCUSSION
1. Education Code Violation
The charge alleged that "the position of Core Substitute and the position of Site
Substitute is not a 'temporary' position in that the function of the Core and Site Substitute does
not fit the description of a temporary or substitute teacher as defined by the Education Code."
The charge then alleged that the District improperly classified Site Support and Core
Substitutes as temporary employees for the 2008-2009 school year.
PERB has no jurisdiction to enforce provisions of the Education Code. (California
Teachers' Assn. v. Livingston Union School Dist. (1990) 219 Cal.App.3d 1503, 1525; Oxnard
Educators Association (Gorcey and Tripp) (1988) PERB Decision No. 664.) Thus, the
allegation that the District violated the Education Code by misclassifying Site Support and
Core Substitutes as temporary employees must be dismissed for lack of jurisdiction.
2. Unilateral Change
The charge also alleged that the District's failure to classify Site Support and Core
Substitutes as probationary employees for the 2008-2009 school year breached the parties'
April 2008 stipulation. PERB has no authority to enforce an agreement between the parties
The charge alleged that the superior court sustained the District's demurrer to the
petition, but the written order sustaining the demurrer did not issue until a month after the
charge was filed. Thus, the court must have orally sustained the demurrer prior to
November 18, 2008.
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unless the breach
of
the agreement would also constitute an independent unfair practice.
(EERA, § 3541.5, subd. (b); Grant Joint Union High School District (1982) PERB Decision
No. 196.) We must therefore determine whether the District's alleged breach
of
the stipulation
constituted an unlawful unilateral change in violation
of
EERA section 3543.5,
subdivision (c).3
An
employer's unilateral change in terms and conditions
of
employment constitutes a
"per se" violation
of
its duty to bargain in good faith if: (1) the employer breached or altered
the parties' written agreement or its own established past practice; (2) such action was taken
without giving the other party notice or an opportunity to bargain over the change; (3) the change
was not merely an isolated breach
of
the contract, but amounts to a change in policy (i.e., it has a
generalized effect or continuing impact upon bargaining unit members' terms and conditions
of
employment); and (4) the change in policy concerns a matter within the scope ofrepresentation.
(Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant Joint Union
High School District, supra.) UESF's charge failed to state a prima facie case
of
an unlawful
unilateral change because the April 2008 stipulation, and by extension the District's alleged
breach
of
the stipulation, does not concern a matter within the scope
of
representation.
EERA section 3543.2, subdivision (a) states: "The scope
of
representation shall be
limited to matters relating to wages, hours
of
employment, and other terms and conditions
of
employment." EERA section 3540 provides, in relevant part, that EERA "shall not supersede
other provisions
of
the Education Code." In San Mateo City School Dist.
v.
Public
Employment Relations Bd. (1983) 33 Cal.3d 850, the California Supreme Court held that, when
the Education Code "clearly evidences an intent to set an inflexible standard or insure
3 EERA section 3543.5, subdivision (c) makes it unlawful for a public school employer
to "[r]efuse or fail to meet and negotiate in good faith with an exclusive representative."
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immutable provisions," parties may not negotiate a collective bargaining provision that would
replace, set aside or annul the mandatory Education Code provision.	
(Id.
at pp. 864-865,
quoting Healdsburg Union High School District and Healdsburg Union School District (1980)
PERB Decision No. 132.) In other words, a subject governed by a mandatory section
of
the
Education Code does not fall within the scope
of
representation under EERA.4
Classification
of
substitute employees is governed by Education Code section 44917,
while classification
of
temporary employees is governed by Education Code section 44919.
Education Code section 44924 provides that "any contract or agreement, express or implied,
made by any employee to waive the benefits
of
this chapter or any part thereof is null and
void." Courts have consistently held that section 44924 voids any provision
of
an individual
employment contract "purporting to waive the protections accorded certificated school
employees by the Code, including the provisions governing their classification and
termination." (Bakersfield Elementary Teachers Assn.
v.
Bakersfield City School Dist. (2006)
145 Cal.App.4th 1260, 1275; Fine
v.
Los Angeles Unified School Dist. (2004) 116 Cal.App.4th
1070, 1077; Zalac
v.
Governing Bd.
of
Ferndale Unified School Dist. (2002) 98 Cal.App.4th
838, 849.) Section 44924 also voids any provision
of
a collective bargaining agreement that
Parties are not absolutely prohibited from bargaining over subjects addressed by
mandatory provisions
of
the Education Code. For example, parties may negotiate over
incorporating mandatory Education Code provisions into a collective bargaining agreement.
(Roseville Joint Union High School District (1986) PERB Decision No. 580; San Mateo City
School District (1984) PERB Decision No. 383.) Parties may also bargain over additional
employee protections beyond those provided in the Education Code. (California Teachers
Assn.
v.
Governing Bd.
of
Hilmar Unified School Dist. (2002) 95 Cal.App.4th 183, 197 [EERA
§ 3 54 3 .2, subd. (d) allows parties to negotiate payment of additional compensation based on
factors other than years of education and years of experience]; Fremont Unified School District
(1997) PERB Decision No. 1240 [procedures for rehiring temporary teachers].) However,
these additional protections cannot circumvent or eviscerate mandatory Education Code
provisions on the same subject. (Board
of
Education
v.
Round Valley Teachers Assn. (1996)
13 Cal.4th 269, 285-286; California Teachers Assn.
v.
Governing Board (1991) 229
Cal.App.3d 695, 705.)
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waives a benefit provided by the Education Code. (Adair
v.
Stockton Unified School Dist.
(2008) 162 Cal.App.4th 1436, 1452.) Because the Education Code provisions governing
classification
of
certificated employees may not be waived by contract, teacher classification is
not a proper subject
of
collective bargaining between school districts and employee
organizations. Accordingly, the subject
of
teacher classification necessarily falls outside the
scope
of
representation under EERA. For this reason, the charge failed to state a prima facie
case
of
unlawful unilateral change. 
ORDER
The unfair practice charge in Case No. SF-CE-2742-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.
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