Trustees of the California State University (San Diego) (PERB 1955H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN DIEGO),
Respondent.
Case No. LA-CE-822-H
PERE Decision No. 	1955-H
April 24, 2008
Appearances: 	Rothner, Segall & Greenstone by Bernard Rohrbacher, Attorney, for California
Faculty Association; Steven Raskovich, University Counsel, for Trustees of the California
State University (San Diego).
Before Neuwald, Chair; McKeag and Rystrom, Members.
DECISION
McKEAG, Member: 	This case comes before the Public Employment Relations Board
(Board) on appeal by the California Faculty Association (CF A) of a proposed decision
(attached) by an administrative law judge (ALJ). 	The charge alleged that the Trustees of the
California State University (CSU) violated the Higher Education Employer-Employee
Relations Act (HEERA)1 when the California State University, San Diego (CSUSD)
discontinued staffing remedial mathematics and writing classes. 	CF A alleged that this conduct
constituted a violation ofHEERA section 357l(a), (b) and (c).
1HEERA is codified at Government Code section 3560, et seq.

BACKGROUND
From 1984 to 2004, CSUSD and San Diego Community College (SDCC) jointly staffed
remedial writing and mathematics courses for CSUSD students. These classes were taught on
the CSUSD campus. Due to budgetary reductions, however, CSUSD unilaterally stopped
staffing those classes in 2004 without negotiating with CF A. Thus, the question in this case is
whether CSU committed an unlawful unilateral change when it stopped staffing the remedial
classes.
The ALJ found that CSUSD would have stopped teaching the remedial classes
regardless of whether SDCC agreed to teach the discontinued classes. Relying on San Diego
Adult Educators v. Public Employment Relations Bd. (1990) 223 Cal.App.3d 1124 [273
Cal.Rptr. 53], the ALJ held that CSUSD did not unlawfully contract out work and dismissed
the case.
The Board has reviewed the entire record in this matter and finds the proposed decision
well-reasoned, adequately supported by the record and in accordance with applicable law.
Accordingly, we conclude the ALJ properly dismissed this case and adopt the proposed
decision as a decision of the Board itself.
ORDER
The unfair practice charge in Case No. LA-CE-822-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Neuwald and Member Rystrom joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN DIEGO),
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-822-H
PROPOSED DECISION
(4/4/06)
Appearances: 	Gerry Daley, Representation Specialist, for California Faculty Association;
Steven Raskovich, University Counsel, for Trustees
of
the California State University (San
Diego).
Before Thomas
J.
Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges an employer unilaterally and unlawfully increased the
contracting-out of unit work. The employer denies any violation
of
law.
The California Faculty Association (CF A) filed an unfair charge against the Trustees
of
the California State University (San Diego) (SDSU) on May 28, 2004. The General Counsel
of
the Public Employment Relations Board (PERB) issued a complaint against SDSU on
September 22, 2004. 	SDSU filed an answer to the complaint on October 14, 2004, and an
amended answer on October 28, 2004.
PERB held an informal settlement conference on December 17, 2004, but the case was
not settled. PERB held a formal hearing on March 10-11, 2005. 1 With the receipt
of
final
post-hearing briefs on June 28, 2005, the case was submitted for decision.
1 At the beginning of the hearing, CFA withdrew allegations that SDSU had
unreasonably delayed providing information requested by CF A, and those allegations were
stricken from the complaint.

FINDINGS OF FACT
SDSU is a higher education employer under the Higher Education Employer-Employee
Relations Act (HEERA).2 CF A is an employee organization under HEERA and is the
exclusive representative of a unit including SDSU' s faculty employees.
For several years, SDSU students have been required to demonstrate competency in
standard written English and basic mathematics. Unless they are exempt because of national
test scores or previous college level courses, incoming SDSU students must take an English
Placement Test (EPT) and an Entry Level Mathematics test (ELM). 	Those who fail the tests
must enroll in remedial courses in their first semester, and successfully complete them by the
end of their third term, or face disenrollment.
Students who fail the EPT must take developmental writing courses in the Department
of Rhetoric and Writing Studies (DRWS). Students who fail the ELM must take general
mathematics studies courses, which are also in the DRWS. Credit for these remedial courses
does not count towards a baccalaureate degree.
Before 1984, SDSU fully staffed these courses with its own faculty. 	In that year,
however, SDSU found itself overenrolled and underfunded, and it began discussions with San
Diego City College (SDCC) about teaching the courses. SDCC was already teaching such
remedial courses on its own campus and elsewhere in the community. As a way of stretching
SDSU funds, and as a convenience to SDSU students, SDSU and SDCC entered into a series
of agreements under which SDCC partially staffed the remedial courses on the SDSU campus.
It appears that SDSU and SDCC entered into a new agreement at the beginning of each
school year. 	In the record are the agreements for the 2000-01, 2001-02, 2002-03 and 2003-04
2 HEERA is codified at Government Code section 3560 and following.
2

school years. These agreements were "made and entered into" on August 28, 2000, on
September 4, 2001, on September 3, 2002, and on September 2, 2003, respectively.
In each agreement, SDCC agreed in part to "provide partial monetary support" in a
specified amount for the remedial classes SDCC itself staffed on the SDSU campus. This
monetary support was in addition to what SDCC paid its staff, and it was to be used to offset
SDSU' s costs "associated with providing supplies and services and student assistant support"
for the classes. 	SDCC could provide such monetary support because it was receiving the state
funding for the remedial classes it staffed, even though SDSU received the student fees. 3
Attached to each agreement was a six-page Memorandum of Understanding (MOU)
between SDSU and SDCC. The MOU specified in part the number of class sections to be
staffed by SDCC. All classes were to be listed in the SDSU class schedule, but the students in
SDCC-staffed sections had to be admitted to SDCC and were to be considered SDCC students.
According to the MOU, the classes were "intended only for SDSU students." It appears
that as a matter of law the SDCC-staffed classes had to be open to all SDCC students, but there
is no evidence of non-SD SU students in those classes.
Also according to the MOU, the curriculum was designed to satisfy SDSU's
competency requirements in English and mathematics. Any curriculum changes were to be
initiated by the SDCC program coordinator after consultation with the SDSU program
coordinator.
The MOU set enrollment caps for SDCC-staffed sections. Theses limits could be
extended only by a joint decision of the SDSU and SDCC coordinators.
3 The state legislature appears to have authorized such an arrangement. Education Code
section 76300(e)(2) allows a community college district not to charge fees to California State
University (CSU) students enrolled in remedial classes provided by the district on a CSU
campus, for whom the district claims an attendance apportionment pursuant to an agreement
between the district and CSU.
3

The SDSU and SDCC coordinators were to "confer about and address faculty issues as
needed." The SDCC-provided instructors were to be evaluated using SDCC procedures,
including those established by SDCC's agreement with its own faculty union. Those
instructors were also to be paid by SDCC in accordance with that agreement.
Until the fall
of
2004, the great majority
of
remedial sections at SDSU continued to be
taught by SDSU's own faculty, although the numbers
of
sections and enrollments were
decreasing. In the fall
of
2001, for example, SDSU faculty taught 102 out
of
a total
of
169
sections. In the fall
of
2002, they taught
83
out of
118 sections, and in the fall
of
2003 they
taught
63
out
of
92 sections.
In the fall
of
2004, however, SDSU faculty taught only a small minority
of
the remedial
sections. 	While the total number
of
sections declined from 92 to 80, the number
of
SDSU
taught sections dropped from
63
to
12.
Meanwhile, the number
of
SDCC-taught sections more
than doubled, from 29 to 68.
The first public announcement
of
this change came in a memo from the DRWS chair
dated January 23, 2004, stating:
With sadness, I am writing to report that Academic Affairs has
determined that at the conclusion
of
this semester, San Diego
State University will no longer staff developmental mathematics
and writing courses. Beginning in Fall 2004, all courses will be
taught by City College instructors. Both programs will continue
to be offered on the San Diego State University campus.
The details
of
this change have yet to be finalized, and many key
questions are still unanswered. 	It is my hope that this department
can continue to oversee the developmental math and writing
programs, particularly in terms
of
scheduling, curriculum, and
assessment. I am working with the administration to maintain
this oversight, but I simply do not know how much we will be
able to salvage. At this point, I believe that we will continue to
offer R WS 101, and it is my understanding that approximately
half of the budget for tutoring will remain.
4

In addition to the loss
of
developmental mathematics and writing,
our department will face other budget cuts, although - once
again - the specific details
of
these reductions are unknown at
this time. I am certain, though, that our instructional staff will be
significantly smaller than it has been in the past and, inevitably,
jobs will be lost. Let me assure you that the department will
continue to handle the periodic review and reappointment
of
lecturers in as fair a manner
as
possible, following established
policies and procedures. In addition, I will
do my best to keep
you apprised
of
budgetary developments. Please feel welcome to
consult with me at any time.
"R
WS 101" was the course number for the
12
sections that SDSU faculty would in fact
continue to teach.
The one witness at the hearing who actually participated in the decision to make the
change was Ethan Singer (Singer), an SDSU associate vice president. In early January 2004,
Singer and the SDSU provost knew that SDSU was facing a major budget reduction. 	Singer
and the provost therefore recommended to the campus president that SDSU stop staffing
remedial classes and focus its resources elsewhere. Although the president did not make a
final decision until probably May 2004, Singer regarded the recommended change as a "done
deal." He informed the DRWS chair, but he did not consult CF
A.
At the same time (January 2004), Singer called Ron Manzoni (Manzoni), an SDCC vice
president. According to Singer, his conversation with Manzoni went this way:
I basically told him that
--
Well, first I'm sure I asked him
how things were going at City College facing the budget
reduction. 	I told him the size
of
ours, and one
of
the -- probably
one of the results
of
that would be that we would no longer be
teaching remediation, and asked him to think about that for what
City [College] might do, want to do, could do.
Singer further testified:
I think, as I recall, Ron was -- he was thoughtful. He
needed some time to think about it. I basically said what the
implications would be for him, what they could or would -- might
want to do. And at that point I said, well, at this point it's
5

between you and the Department chair, you know, what can or
cannot be done.
Singer assumed that SDCC and the DRWS chair would be talking about staffing remedial
classes, but he did not know whether SDCC would have the funding to do it.
Singer consistently testified that SDSU made its decision "[t]otally independent"
of
SDCC. When asked what effect there would have been on SDSU' s decision had SDCC not
ultimately staffed remedial classes at SDSU, he replied, "None whatsoever." If that had
happened, he thought that SDSU would probably have tried to play a "logistic role" in getting
SDSU students who needed remedial classes to the nearest community college campus (which
was not SDCC). The SDCC president, who also testified, confirmed that to the best
of
his
knowledge SDCC "played no role" in SDSU's decision.
When asked why SDSU specifically chose not to staff remedial classes, Singer testified
as follows:
For budget purposes. 	When we were looking and faced
with this 12.4 million dollar reduction, we had to decide where
we would reduce budgets. 	Several years earlier, I should
mention, the budget for remedial courses was moved from the
Rhetoric and Writing Department's budget to the provost's
office. The reason that was done was, as we were -- as the
enrollments in remedial courses dropped, what we didn't want to
have to do each year is have to permanently reduce the budget
each year. And we believed eventually that was going to be a
very small number
of
course sections.
So, we took all those funds, put them in the provost's
office, and then we would allocate them out. It was a lot easier to
allocate them out each year based on the number of sections that
we offered. And as we looked over our budget in the provost
office, as well as considering what the budget reductions would
need to be in the colleges, we made the judgment we could just
no longer support the San Diego State's teaching remedial
courses in lieu of, again, as the situation we had in the past of not
being offered -- or having severely reducing the number of
courses that we would offer for graduation.
6

By "graduation" I understand Singer to mean graduation with a baccalaureate degree, towards
which remedial courses did not count. As Singer later testified, the choice was to "reduce
remedial courses or the regular courses."
The agreement between SDSU and SDCC for the 2004-05 school year
is
not in the
record, nor is there evidence
of
when SDSU and SDCC entered into that agreement. Based on
their practice for at least the previous four school years, I would assume that they entered into
the agreement in late August or early September 2004.
ISSUE
Did SDSU unilaterally and unlawfully increase the contracting-out
of
unit work?
CONCLUSIONS
OF
LAW
In determining whether a party has violated HEERA section 357l(c), 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 process. (Stockton Unified School District
(1980) PERB Decision No. 143.) 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. 	(Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
By coincidence, the precedential decision most relevant to the present case also comes
from San Diego: San Diego Adult Educators v. Public Employment Relations Bd. (1990) 223
Cal.App.3d 1124 [273 Cal Rptr. 53] (San Diego). As that case indicates, it is well established
that an employer may reduce unit work, as a managerial decision, without negotiating. 	(Id. at
1133-34.) An employer may not, however, contract out unit work without negotiating (id. at
7

1133), or significantly increase the amount
of
contracting out without negotiating (Beverly
Hills Unified School District (1990) PERB Decision No. 789; Oakland Unified School District
(1983) PERB Decision No. 367).
In San Diego, the community college district had unilaterally contracted with an
educational foundation for the teaching
of
both "popular" and "minor" languages. 	In March
1983, the district had decided to stop teaching the popular languages, for economic reasons. In
May 1983, however, the district responded to public pressure by deciding to ask the foundation
to offer the popular language classes, and in June 1983 it contracted for the foundation to do
so. 	In August 1983, the district decided to add minor language classes to the contract with the
foundation and to discontinue its own minor language classes.
The court
of
appeal concluded that the district made an unlawful unilateral change
when it "contemporaneously" decided to contract for the teaching
of
minor languages and to
discontinue its own teaching
of
those languages. (San Diego at
113
5.) With regard to the
popular languages, however, the court reached the opposite conclusion. The court ruled that
the district had not contracted out unit work because the district had terminated that work
before it contracted with the foundation. 	(Id. at 1134.)
In the present case, it does not appear that SDSU decided "contemporaneously" to
contract with SDCC for more remedial classes and to cut its own remedial classes. On the
contrary, it appears most likely (based on past practice) that SDSU and SDCC did not enter
into an agreement for the 2004-05 school year until late August or early September 2004,
months after SDSU's decision to cut its own classes was final. 	Indeed, SDSU's Singer
testified he only called SDCC's Manzoni once he regarded SDSU's decision as a "done deal."
I do not base my decision on timing alone, however. After all, SDSU had contracted
with SDCC for years, and SDSU clearly hoped that SDCC would be willing and able keep the
8

remedial program going on the SDSU campus for at least the immediate future. 	In the present
case, I believe that the real issue
is
whether SDSU's decision to cut classes was dependent on
or independent from its contract with SDCC. Timing is certainly a factor relevant to this issue,
but it is not necessarily the only factor. 	(Cf. Whisman Elementary School District (1991)
PERB Decision No. 868.)
SDSU's Singer credibly testified that SDSU's decision had been "[t]otally
independent"
of
SDCC, and SDCC' s president agreed. 	Singer specifically testified that
if
SDCC had not staffed remedial classes at SDSU in the 2004-05 school year there would have
been no effect "whatsoever" on SDSU's decision. In Singer's mind, at least, SDSU had a
possible backup plan: to play a "logistic role" in getting SDSU students needing remediation
to the nearest community college campus (which was not SDCC).
Singer also credibly testified there were reasons other than the contract with SDCC for
SDSU to cut its remedial classes in particular. First
of
all, enrollment in those classes had been
dropping, and the drop was expected to continue. Second, faced with a major budget
reduction, SDSU simply decided it was more important
to
preserve "regular" classes that
counted toward a baccalaureate degree than to preserve remedial classes that did not.
I conclude that SDSU would have cut the remedial classes taught by members
of
the
CFA bargaining unit regardless
of
whether SDSU contracted with SDCC. I therefore cannot
conclude that SDSU contracted out what otherwise would have been unit work. 	For that
reason, the unfair practice charge must be dismissed.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and the underlying unfair practice charge in Case No.
9

LA-CE-822-H, California Faculty Association
v.
Trustees
of
the California State University
(San Diego), are hereby DISMISSED.
Pursuant to California Code
of
Regulations, title 8, section 3
23
05, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit.
8,
sec. 32300.)
A document is considered "filed" when actually received before the close
of
business
(5
p.m.) on the last day set for filing. 	(Cal. Code Regs., tit.
8,
secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code
of
Regulations, title
8,
section 32135(d),
provided the filing party also places the original, together with the required number
of
copies
and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit.
8,
sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
10

on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Thomas J. Allen
Administrative Law Judge
11