Oakland Housing Authority (PERB 1739M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BUILDING TRADES COUNCIL,
Charging Party,
v.
OAKLAND HOUSING AUTHORITY,
Respondent.
Case No. SF-CE-225-M
PERB Decision No. 	1739-M
J a n u a r y 	2 6 , 	2005
Appearances: 	Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for Building
Trades Council; The Stevens Law Firm by Cheryl A. Stevens, Attorney, for Oakland Housing
Authority.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Building Trades Council (Council) of a Board agent's dismissal of
its unfair practice charge. 	The charge alleged that the Oakland Housing Authority (Authority)
violated the Meyers-Milias-Brown Act (MMBA)1 by unilaterally assigning the work of regular
employees to project employees.
The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charge, the Authority's position statement, the warning and dismissal
letters, the Council's appeal and the Authority's opposition to the appeal. The Board hereby
dismisses the charge based on the following discussion.
MMBA is codified at Government Code section 3500, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

BACKGROUND
The Authority is responsible for maintaining and repairing public housing located
within the City of Oakland. 	The Council represents individuals employed by the Authority in
certain classifications, including carpenters, plumbers, painters and floor layers. 	The Authority
employs several different categories of employees in these classifications, including regular,
project and temporary employees. 	Regular and project employees are members of the
bargaining unit exclusively represented by the Council.
During a bargaining session held on July 14, 2004, the Council learned that the
Authority was assigning work to project employees which it believed should have been
assigned to regular employees. 	The Council provided examples of project employees
employed as plumbers, painters and floor layers, who were working alongside regular
employees in the same classifications.
In a letter to the Authority dated July 23, 2004, the Council claimed the Authority had
unilaterally changed existing policy when project workers began performing the work of
regular employees. The Council demanded to bargain the impact of this decision. The
Authority refused to meet and confer on this matter.
The Authority's Employee Manual defines a project employee as:
an employee whose position is funded by a special grant or
through contract arrangements with other agencies, or
temporarily funded by regular funds for a specific duration.
This definition is also reflected in Section XIX of the parties' memorandum of understanding
(MOU).
The Authority has utilized project employees for more than 20 years and they have
been included in the bargaining unit for more than 10 years. Project employees receive the
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same pay and benefits as regular employees. 	The only distinction between regular and project
employees is that project employees are hired for a specified duration of time. 	Before a project
employee is hired, he or she is required to sign employment papers acknowledging the limited
duration of the position.
A temporary employee is defined in the Authority's Employee Manual, in relevant part, as:
an employee who has been appointed to a position on a temporary
basis; or an employee who has been appointed to fill a temporary
need and/or whose position is budgeted from temporary funds.
Temporary appointments may be granted for a period of up to six
months.
Section XIX of the parties' MOU covers contracting out and states, in relevant part:
With regard to contracting out, it is agreed that the Oakland
Housing Authority will, as far in advance as possible, inform the
Union of such matters that may effect employees in the
bargaining unit. No such contract for service shall result in the
loss of employment for those employees who are, at the point of
the contract for services, regular (non-probationary) employees.
Should a regular employee be assigned to a different position
with a lower corresponding salary than his/her former salary, the
former/higher salary shall remain intact until the salary of the
current position catches up with the former salary.
This provision does not apply to employees who occupy project
or temporary positions. 	Specifically, a project position is funded
by a special grant or other special funds, or temporarily funded by
regular funds for a specific duration. An employee who is in a
temporary position holds temporary status. A temporary
appointment may be terminated at any time, without the
Authority stating a reason for the termination. 	Temporary
appointments shall not exceed six months. The Authority shall
provide the Union with a monthly printout of temporary
employees by department, date of hire and position. Temporary
employee [s] shall be exempt from the Agency Shop provision of
the MOU. 	[Emphasis added.]
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BOARD AGENT'S DISMISSAL
As originally filed, the charge alleged that the Authority had contracted out the work of
regular employees to project employees. 	In her warning letter, the Board agent reviewed the
parties' contracting out provision and, applying a "clear and unmistakable" waiver analysis,
determined that the Council had waived its right to negotiate this matter. (Long Beach
Community College District (2003) PERB Decision No. 1568.)
In its amended charge, the Council acknowledged that project workers were
employees of the Authority and members of the bargaining unit, not independent contractors.
However, the Council incorrectly described project employees as individuals employed for a
specific period not to exceed six months, and who were exempt from having to pay agency
fees. 	This description meets the definition of a temporary employee, not a project employee.
The charge alleged that project employees were performing work which was ordinarily done
by regular employees and the Authority refused to negotiate the impact of this decision.
In dismissing the charge, the Board agent clarified that project workers were
employees of the Authority and members of the bargaining unit. 	She found no evidence that
project employees were limited as to the type of work they could perform. 	The only
limitations on project employees were how they were funded and that they were hired for
limited terms. 	The Board agent concluded that there was no evidence that the Authority made
a unilateral change in policy concerning the type of work performed by project employees,
how they were funded, or the duration of their employment.
COUNCIL'S APPEAL
On appeal, the Council asserts that the language of Section XIX limits the kind of work
project employees can perform to special projects funded by grant monies. 	It also contends
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that a project worker funded by regular funds can only work for a "specific duration," not to
exceed six months. The Council alleges that contrary to the terms of the MOU, project
employees are being assigned the work of regular employees, for periods of time exceeding six
months.
The Council also contends that the Board agent erred when she applied a waiver
analysis to determine that the Council waived its right to bargain matters arising under the
contracting out provision. As it stated in its amended charge, the Council acknowledges that
project employees are employees of the Authority, not independent contractors. 	Therefore,
because the contracting out provision is inapplicable to employees of the Authority, the
Council asserts it is unnecessary to apply a waiver analysis.
In its response to the appeal, the Authority states that the Council continues to confuse
temporary workers with project employees. 	The MOU does not support the Council's claim
that the employment of project employees is limited to six months. 	The Authority further
asserts that project employees are not limited in the work they can perform and that project
employee positions have not been funded in a manner contrary to the MOU. The" Authority
contends that it has not violated the MOU in its use of project employees and it has no
obligation to negotiate the decision to hire project employees.
DISCUSSION
In determining whether a party has violated MMBA section 3505 and PERB
Regulation 32603(c),2 PERB utilizes either the "per se" or "totality of the conduct" test,
depending on the specific conduct involved and the effect of such conduct on the negotiating
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
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process. 	(Stockton Unified School District d98(T) PERB Decision No. 143.)3 Unilateral
changes are considered "per se" violations if certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a matter within the scope of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. 	(Vernon Fire Fighters v. City
of Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley Unified School
District (1981) PERB Decision No. 160; San Joaquin County Employees Assn. v. City of
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Stockton (1984) 161 Cal.App.3d 813 [207 Cal.Rptr. 876]; Grant Joint Union High School
District (1982) PERB Decision No. 196.)
As originally filed, the charge appeared to allege that the Authority had contracted out
the work of regular employees to project employees. 	The Board agent reviewed the parties'
MOU and properly determined that under Section XIX, the contracting out provision, the
Council had waived its right to negotiate contracting out bargaining unit work.
As amended, however, it becomes clear that the Council alleged that the Authority had
unilaterally departed from the terms of the MOU when it assigned work performed by regular
employees to project employees. The Council alleged that Section XIX provided that project
employees could only be assigned to work on special projects which were funded by grant
monies. 	It also alleged that when "regular funds" are used to pay project workers, they may
only work for a period not to exceed six months.
The Council continues to incorrectly apply the limitations placed on temporary workers
to project employees.
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116
Cal.Rptr. 507].)
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Section XIX states, in relevant part:
Specifically, a project position is funded by a special grant or
other special funds, or temporarily funded by regular funds for a
specific duration. 	[Emphasis added.]
Section XIX continues:
An employee who is in a temporary position holds temporary
status. A temporary appointment may be terminated at any time,
without the Authority stating a reason for the termination.
Temporary appointments shall not exceed six months.
(Emphasis added.)
Clearly, the language of the MOU provides that the six-month limitation on
employment applies only to temporary workers. 	While project workers' terms of employment
are limited to "a specific duration," the length of employment is not specified in the contract.
Further, there is nothing in the MOU which restricts the assignment of project employees only
to "special projects." Rather, the MOU addresses only how project employees are funded, by a
"special grant or other special funds" or by "regular funds." Because there are no restrictions
in the MOU on the work assignment of project employees, there is no evidence that the
Authority departed from the terms of the parties' agreement when project employees were
assigned the work of regular employees.
Furthermore, there is no evidence that prior to July 14, 2004, the practice of the
Authority was to assign project employees to work only on special projects or to limit their
terms of employment to six months. 	The Council alleged that project employee painters,
plumbers and floor layers worked alongside regular employees in the same classifications. An
employer does not effect an unlawful unilateral change, however, where an action the
employer takes does not alter the status quo. 	(Pajaro Valley Unified School District (1978)
PERB Decision No. 51.) There are no facts alleged in the charge which demonstrate that prior
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to July 14, 2004, project employees were restricted to work only on special projects. Thus, the
charge does not demonstrate a change in practice when the Authority assigned the painters,
plumbers and floor layers to work on the same projects with regular employees.
There is no evidence that the Authority unilaterally departed from the provisions of the
MOU or unilaterally changed the past practice when project employees were assigned the work
of regular employees and their term of employment exceeded six months. Therefore, the
charge does not state a prima facie case of an unlawful unilateral change in policy.
ORDER
The unfair practice charge in Case No. SF-CE-225-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
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