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Court of Appeal, Fourth District, Division 1, California.

SAN DIEGO ADULT EDUCATORS, LOCAL 4289, American Federation of Teachers/California Federation of Teachers, AFL–CIO, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent.

SAN DIEGO COMMUNITY COLLEGE DISTRICT, Real Party in Interest. SAN DIEGO COMMUNITY COLLEGE DISTRICT, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent. SAN DIEGO ADULT EDUCATORS, LOCAL 4289, American Federation of Teachers/California Federation of Teachers, AFL–CIO, Real Party in Interest.

Nos. D009278, D009280.

Decided: April 03, 1990

Larry J. Frierson, Sandra Owens Dennison and Liebert, Cassidy & Frierson, Los Angeles, for San Diego Community College Dist. Christine A. Bologna, San Diego, Donn Ginoza and Robert G. Thompson, for Public Employment Relations Bd. James M. Gattey and Gattey & Messersmith, San Diego, for San Diego Adult Educators.

In March 1983, the San Diego Community College District (District) Board of Trustees (Board) discontinued French, Spanish and German classes given in a special fee for service program with no credit awarded.   It discontinued offering the classes because the instructors were paid more than the District received in fees.   On May 22, as a result of community pressure, the Board ordered the Chancellor to enter into a contract with the San Diego Community College District Foundation (Foundation) which had provided unrelated classes for the District in the past.   On June 23, the Board approved a contract with the Foundation.   The Foundation would provide the French, Spanish and German classes through instructors who received less pay than had instructors in the discontinued classes.   The classes were to be supervised by the District.   Throughout this period, the foreign language instructors whose employment was discontinued in March were members of the San Diego Adult Educators, Local 4289, AFL/CIO (Union).

On December 21, 1983, the Union filed an unfair labor practice charge with the Public Employees Relations Board (PERB) charging the District with unilaterally subcontracting (i.e., refusal to bargain).  (Gov.Code, § 3543.5 subd. (c).)  In 1988, PERB issued a decision finding that the District had illegally subcontracted without negotiating with the employees' union and ordered rescission of District–Foundation contract.   The decision did not, however, order reinstatement or back pay to the instructors who were terminated in 1983.   Both the Union and the District seek writs of review.  (Cal.Rules of Court, rule 59.)   Their petitions have been consolidated.

The District contends PERB lacks jurisdiction because the unfair labor practice charge was not timely filed and served.   The District also contends that, assuming jurisdiction, there is no substantial evidence in support of the decision, not only in terms of the alleged unlawful contracting itself, but also in its finding that the Union had not waived its right to negotiate with the District concerning the decision to terminate its members' services.   The Union contends PERB erred when, after finding unlawful refusal to negotiate, it failed to remedy the wrong by ordering reinstatement of teachers and back pay.


The only grounds for overruling a PERB decision are:   no substantial evidence to support the decision (see Carl Joseph Maggio, Inc. v. Agricultural Labor Relations Bd. (1984) 154 Cal.App.3d 40, 54, 201 Cal.Rptr. 30) or (2) a clearly erroneous interpretation of the Educational Employees Relations Act (EERA).  (Gov.Code, § 3540 et seq.;  Los Angeles Unified Sch. Dist. v. Public Employment Relations Bd. (1986) 191 Cal.App.3d 551, 237 Cal.Rptr. 278.)   Here, the District argues PERB erroneously interpreted the EERA in finding the unfair labor practice claim timely filed.   District attacks the Board's findings of unlawful subcontracting and its conclusion the Union had not waived its rights to negotiate by asserting that there is no substantial evidence to support either finding.


EERA unfair labor practice charges must be filed within six months of the underlying incident.  (Gov.Code, § 3541.5, subd. (a)(1).)   The District argues the unfair labor practice charge was not timely filed because it was not served with the charge until January 1984, beyond the six-month period.   PERB and the Union argue Government Code section 3541.5, subdivision (a)(1) requires only filing of the charge, not service within six months.1  They also contend that the PERB regulation, California Administrative Code, title 8, section 32615, which requires proof of service accompany a charge upon filing, is merely directive not jurisdictional.

The federal courts, interpreting the analogous National Labor Relations Act, support the Union's position.

“The Courts of Appeals [sic ] that have considered the question have uniformly held that [National Labor Relations Act (29 U.S.C. § 160(b)) ] section 10(b)'s six-month service rule is a statute of limitations that does not limit the Board's jurisdiction.   E.g., NLRB v. Babcock & Wilcox Co., 697 F.2d 724, 727 (6th Cir.1983);  NLRB v. Vitronic Division, 630 F.2d 561, 563 (8th Cir.1979);  Shumate v. NLRB, 452 F.2d 717, 721 (4th Cir.1971);  A.H. Belo Corp. v. NLRB, 411 F.2d 959, 966 (5th Cir.1969), cert. denied, 396 U.S. 1007, 90 S.Ct. 561, 24 L.Ed.2d 498 (1970);  NLRB v. Silver Bakery, Inc., 351 F.2d 37 39 (1st Cir.1965);  NLRB v. A.E. Nettleton Co., 241 F.2d 130, 133 (2d Cir.1957);  cf. NLRB v. MacMillan Ring–Free Oil Co., 394 F.2d 26, 31 (9th Cir.) (section 10(b) a statute of limitations, not a rule of evidence), cert. denied, 393 U.S. 914, 89 S.Ct. 237, 21 L.Ed.2d 199 (1968).”  (Hospital & Service Employees Union v. N.L.R.B. (9th Cir.1986) 798 F.2d 1245, 1249, fn. 5.)

We conclude the federal authority is persuasive.   We therefore find failure to serve the District with an unfair labor practice charge within the six-month period did not deprive PERB of jurisdiction.


The decision by an employer to subcontract work formerly performed by employees is one which requires negotiation with the representative union.   The employer must provide the union with notice of the proposed change and negotiate before the change is made.  (Fibreboard Paper Products Corp. v. Labor Board (1964) 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233;  San Mateo County College Dist. (1979) PERB Decision No. 94 [3 PERC ¶ 10080].)   District here did not negotiate with the Union regarding subcontracting of the foreign language class instruction, and therefore violated this principle.   Union's unfair labor practice charge must be sustained, therefore, unless Union can be found to have waived its right to negotiate.


PERB concluded that Union had not waived its right to negotiate because it was not given adequate notice of the proposed change prior to its implementation.   District challenges this finding upon the contention that it is not supported by substantial evidence.

The question of adequate notice and waiver was discussed in Victor Valley Union High School Dist. (1986) PERB Decision No. 565 [10 PERC ¶ 17079,6p. 327].   There, the district had increased the teachers' instructional day without negotiating with the union.   The district claimed the union had waived its right to negotiate the issue because Board meeting agendas had been sent to the union.   PERB found no waiver, but analyzed the issue as follows:

“Notice of a proposed change must be given to an official of the employee organization who has the authority to act on behalf of the organization.   The notice must be communicated in a manner which clearly informs the recipient of the proposed change.   Even in the absence of formal notice, proof that such an official had actual knowledge of the proposed change will suffice.   Notice must be given sufficiently in advance of a firm decision to make a change to allow the exclusive representative a reasonable amount of time to decide whether to make a demand to negotiate.   What constitutes a ‘reasonable amount of time’ necessarily depends upon the individual circumstances of each case.   As waiver is an affirmative defense, an employer asserting a waiver of the right to bargain properly bears the burden of proving that the exclusive representative failed to request bargaining despite receiving sufficient notice of the intended change.

“In the present case, it was not proven that any official of the Association was given formal notice or had actual knowledge of the proposed change in instructional minutes․  Though the Association received agendas for the District Board's December 13 and 27 meetings, the District failed to demonstrate that the agendas clearly informed the Association of the proposed increase in instructional minutes.   There was no evidence that any Association representative attended either meeting.”  (Id. 10 PERC at p. 329, fn. omitted.)

We find the PERB analysis in this prior decision to be sound, and apply it to the facts of this case.

Here, the Union received Board meeting agendas prior to all relevant Board meetings, including the meetings of May 23 and June 22.   The agenda for the May 23, 1983 meeting specifically stated that the Board would consider “alternatives concerning funding of certain discontinued Continuing Education classes.”   It listed the five alternatives under consideration, one of which was allowing the Foundation to offer the discontinued foreign language classes.   It recommended there be a thorough discussion of the alternatives, and that the Chancellor “prepare the necessary documents to implement the alternative agreed to by the Board.”

The agenda for the June 22, 1983 meeting included consideration of the proposed agreement between the District and the Foundation.

Union President Sullivan, who was also negotiating chairperson, testified he was present at the May 23 meeting.   At that meeting, the Chancellor reported on the alternatives he had studied to relieve the community pressure caused by discontinuance of the foreign language classes.   Among the alternatives reviewed were courses offered through the regular college (credit courses), courses to be offered by the YMCA, the Department of Parks and Recreation, and the Foundation.   All agencies other than the Foundation were unwilling to offer the courses.   These alternatives were discussed and the Board directed the Chancellor to inform the Foundation that the District requested it to offer the discontinued classes.   On June 22, the Board approved an agreement between the District and the Foundation to provide the courses.

At neither of the May 23 or June 22, 1983 Board meetings did anyone from the Union speak in opposition to the utilization of the Foundation to provide the foreign language courses in issue.   The District and Union were holding negotiating sessions on other issues at least an average of two times a month from March through November of 1983.   At no time did the District ever receive from the Union a request to negotiate the foreign language class issue.

Assuming the Board, at the June 22 meeting, acted unlawfully in contracting with the foundation absent negotiations with the Union, the Union waived a right to negotiate, having failed to request negotiations with knowledge of the proposed change.

Citing Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191, 205, 191 Cal.Rptr. 60, PERB argues more than notice and an opportunity to meet is required to support waiver of the Union's right to negotiate the District's proposed change in working conditions.   The primary issue in Moreno Valley was whether a unilateral change in employment conditions during pendency of the statutory impasse procedure (appointment of a mediator by PERB following impasse in negotiations) was a per se unfair labor practice.   A side issue was whether the District had failed to participate in good faith in the statutory impasse procedure with regard to the effect of certain employment decisions.   While considering the second issue, the court discussed the duty of an employer to negotiate over the effects of an otherwise lawful termination of an employee.   It rejected a District argument the duty to negotiate was fulfilled by giving notice and opportunity to bargain, before implementation of changes.   The principle of waiver of negotiations was not referred to or in issue.

PERB also relies upon a series of cases holding absent notice of a proposed change in working conditions, prior to the change, there can be no waiver of the right to negotiate the change.   Since timely notice was given here, these cases are inapposite.

The facts which we have recited herein, concerning waiver, are undisputed.   It is our conclusion that the only rational decision which can be reached on the basis of these facts is that Union, with full knowledge of intended action and an opportunity to object, failed to do so.   We therefore conclude that no substantial evidence exists in support of the PERB conclusion of no waiver on the part of Union.


We reverse the PERB decision on the ground the Union waived the right to negotiate the change.   The Union petition is dismissed as moot since there is no decision reflecting a remedy inconsistent with the findings.

FROEHLICH, Associate Justice.

TODD, Acting P.J., and HUFFMAN, J., concur.