Sonoma County Office of Education (PERB 0040E)

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STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
SONOMA COUNTY ORGANIZATION
OF PUBLIC EMPLOYERS,
Charging Party,
vs.
SONOMA COUNTY OFFICE OF EDUCATION,
Respondent.
Case No. 	SF-CE-3
EERB Decision No. 40
November 23, 1977
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Appearances: 	Peter M. Renkow (Doty & Renkow) for Sonoma County Organization
of Public Employees; V.T. Hitchcock, Deputy County Counsel, for Sonoma County
Office of Education; Elaine Grillo Canty, Attorney, for Amicus Curiae,
California School Personnel Commissioners' Association in support of Respondent.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
This case is before the Educational Employment Relations Board on
the exceptions of both the Sonoma County Organization of Public Employees
and the Sonoma County Office of Education to the attached hearing officer's
recommended decision.l The recommended decision ordered SCOE, a merit
system district pursuant to Education Code Section 45240 et seq., to
"cease and desist from failing to meet and negotiate in good faith upon
request with the exclusive representative [SCOPE]" with regard to salaries paid
to individual job classifications; except that the employer shall be under
no obligation to bargain about proposals which would change the relationships
of the individual jobs as established by the personnel 	commission." 	SCOPE
urges that the scope of negotiations allowed by the recommended decision
is too narrow and fails to comport with the legislative intent of the
Hereinafter, the Educational Employment Relations Board is referred
to as "EERB," the Sonoma County Organization of Public Employees is
referred to as "SCOPE," and the Sonoma County Office of Education is
referred to as "SCOE."
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Educational Employment Relations Act2 or with the attorney general's opinion
cited in the recommended decision, 	which would allow negotiation regarding
salaries paid individual job classifications, except insofar as the relation-
ships of the individual jobs within a single "occupational group" would be
changed. 	Based on Education Code Section 45268 (formerly Education Code
Section 13719), SCOE argues that SCOE's governing board should only be
required to negotiate across-the-board increases or decreases in the
salaries of all classified employees.
The EERB adopts the hearing officer's recommended decision, as modified
herein.
The central issue presented by this case is whether or not the salaries
paid to certain individual job classifications in the classified service
are matters within the scope of representation. 	While Government Code
Section 3543.2 states that matters relating to "wages" are within the
scope of representation, Government Code Section 3540 provides that nothing
contained in the EERA shall supercede, at least, provisions of the Education
Code which establish and regulate a merit or civil service system. 	Education
Code Section 45268 is such a provision, and interpretation of its last
sentence provides the answer to the issue posed above. 	Section 45268 reads:
The commission shall recommend to the governing board
salary schedules for the classified service. 	The
governing board may approve, amend, or reject these
recommendations. No amendment shall be adopted until
the commission is first given a reasonable opportunity
to make a written statement of the effect the amend-
ments will have upon the principle of like pay for
like service. 	No changes shall operate to disturb
the relationship which compensation schedules bear
to one another, as the relationship has been established
in the classification made by the commission.
If the governing board had total freedom to approve, reject or amend
the recommendations of the personnel commission, then the salaries paid to
certain individual job classifications would be fully negotiable since
such salaries are certainly "wages." 	However, the last sentence of
Gov. Code Sec. 3540 et seq.
3 54 Ops. Atty. Gen. 77 (1971).
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Section 45268 limits the governing board's ability to amend the personnel
commission's recommendations. To the extent of the limitation imposed by
this sentence, the governing board is not able to negotiate regarding the
salaries paid individual job classifications.
The EERB has the assistance of a 1971 attorney general's opinion which
interprets Section 45268 (formerly Education Code Section 13719).4 The EERB not
only gives this opinion considerable weight, but finds it controlling
in the resolution of this case. 	In Meyer v. Board of Trustees, 195 Cal.
App.2d 420, 431, 432 (1961), it is stated:
The contemporaneous construction of a statute by
those charged with its enforcement and interpretation,
although not necessarily controlling, "is entitled
to great weight, and courts generally will not depart
from such construction unless it is clearly erroneous
or unauthorized." 	...As a contemporaneous construction
and because he was charged with the duty of rendering
an opinion with respect to its meaning, the inter-
pretation of the subject statute by the attorney
general...is entitled to great respect...
It must be presumed that the aforesaid interpretation
has come to the attention of the Legislature, and if
it were contrary to the legislative intent that some
corrective measure would have been adopted in the course
of the many enactments on the subject in the meantime.
Because the attorney general's opinion interpreting former Education Code
Section 13719 was rendered six years ago and because that section was
reenacted in the same form by the Legislature in the 1976 Education Code
and has not subsequently been amended, the principle above quoted is
applicable to the present case, and we therefore look to the attorney
general's opinion.
Our interpretation of the attorney general's opinion differs from
that outlined in the recommended decision. 	The recommended decision,
purporting to follow the attorney general's opinion, concluded that the
governing board can increase or decrease the salaries of individual job
classifications, so long as such changes do not "lift a classification
which formerly was lower paid above one which formerly was higher paid."
Rather, we find that the governing board can increase or decrease
the salaries of particular job classifications, so long as such changes
do not lift a classification which formerly was lower paid above one
which formerly was higher paid within the same "occupational group."
4 Ibid. 	-3-

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As the attorney general's opinion notes:
It is important to observe that even though positions
within different occupational groups may have the same
salary at a given moment in time, 	they do not necessarily
have a compelling relationship which must be tied
together in the salary structure. 	A carpenter foreman
is not necessarily related to a first level clerical
supervisor. 	Historically, each may have been
receiving salary increases at different rates of
increase producing a coincidental equality of rate
for a given period of time. 	External competitive
factors may have justified an increase for one
occupational group but not for another.
Thus, job classifications in different occupational groups should not be
compared in determining whether their salary relationships have been changed
by the governing board, as was done in the hypothetical example in the
recommended decision. 	In the recommended decision the salary relationships
of data processing workers, business office workers, audio visual technicians,
clerical workers and custodians were hypothetically compared. 	Instead, 	the
example given in the attorney general's opinion compares only job classifi-
cations within a single occupational group:
The classification by the commission resulting in
the secretary to the superintendent having a higher
classification than the secretary to the assistant
superintendent is within the exclusive control of
the commission...; it then would be the duty of the
board to assign the higher classification to a higher
salary range than is assigned to each lower classi-
fication within each occupational group.
SCOE argues that the Legislature did not intend pay schedules to be
compressed or expanded by the governing board, and that such "tampering
destroys the relationship" between job classifications. 	This argument
was answered by the following quotation from the attorney general's opinion:
This classification relationship may not be
disturbed by action of the governing board in
making changes in the compensation schedules;
however, we do not view such relationships as
being necessarily "disturbed" if the governing
board decreases or increases the salary differential
between two non-equal positions, so long as each
remains effectively higher or lower as such relative
relationships have been established by the personnel
commission classification.
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Because the EERB considers the opinion of the attorney general binding
on the EERB, it rejects SCOE's argument.
SCOPE raised the issue that the recommended decision did not address
the second allegation of SCOPE'S charge which stated:
The Personnel Director, Fred Walton, is a member of
the management negotiation team and has prepared and
submitted to the Personnel Commission a salary study
which if adopted would unilaterally reduce the salary
of individual classifications by 7.5%.
The exception was made on the grounds that "such unilateral action" would
reduce the salaries of Individual classifications contrary to an agreement
negotiated between the parties, dated September 13, 1976, which provided,
"All employees in the bargaining unit will receive a general salary increase
at each existing salary range of 5% effective September 1st, 1976 	"
The EERB dismisses this allegation. 	It finds that the preparation and
submission of the salary study to the personnel commission is not unilateral
action which constitutes bad faith negotiations in violation of Government
Code Sections 3540.l(h), 3543.2 and 3543.5(b) and (c), as alleged. 	As the
allegation admits, the salary schedule was not adopted by the governing board,
SCOE, and there is no allegation or proof that any salaries have in fact
been unilaterally reduced by 7.5%.
ORDER
Pursuant to Government Code Section 3541.5(c) of the Educational
Employment Relations Act, it is hereby ordered that:
A. 	The Sonoma County Board of Education shall:
1. 	CEASE AND DESIST FROM:
Failing to meet and negotiate in good faith upon request
with the exclusive representative of the classified employees with regard
to salaries paid to individual job classifications;
Except that the employer shall be under no obligation to
bargain about proposals which would change the relationships of the
individual jobs as established by the personnel commission within an
occupational group.
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO EFFECTUATE THE POLICIES OF THE ACT:
a. 	Prepare and post a copy of this order at its headquarters
office for twenty (20) working days in a conspicuous place at the location
where notices to classified employees are customarily posted;
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b. 	At the end of the posting period, 	notify the San Francisco
Regional Directqr of the Educational Employment Relations Board of the action
it has taken to comply with this order .
B. 	The allegation of the Sonoma County Organization of Public Employees
that the Sonoma County Office of Education's Personnel Director prepared
and submitted to the Personnel Commission a salary study which if
adopted would unilaterally reduce the salary of individual classifications
by 7. 5%, 	is hereby DISMISSED.
~ 	Raymond J. Gonza~es, 	Member 	Reginald 	Alleyne, 	Chairman
JerilouH. 	Cossack, 	Member, 	concurring and dissenting :
I agree with the majority that the Sonoma County Office of Education violated
Section 3543 . 5 (c ) of the EERA by refusing to meet and negotiate with SCOPE, 	the
exclusive representative of its classified employees, 	about wages of individual job
classifications. 	However, 	I do not agree with the majority's rationale for finding
a violation. 	I also conclude that the County Office further violated Section 3543.5(c)
of the EERA by entertaining the salary study prepared by Fred Walton, 	its personnel
director and the executive director of t~e personnel commission, without negotia-
tions with SCOPE.
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The majority's total reliance on the Attorney General's opinion1is misplaced
and has resulted in a misconstruction of the issue presented by this case . 	The .
authority of .this Board to interpret the Education Code is only as broad as necessary
to interpret and enforce the EERA. 	The·majority' s reliance on Meyer v. 	Board of
Trustees to leap ·from the position of giving "great weight II 	to an Attorney General
opinion to considering that opinion binding on this Board is misplaced. 	Meyer holds
that 	"the construction of a statute by those c~arged with its enforcement and inter-
pretation . .. 'is entitled to great weight__ '" 	The Attorney General's opinion
dealt solely with an interpretation of one section of the Education Code and in
no way dealt with the relationship of the Education Code to the EERA. 	The Attorney
General 	is not charged with the enforcement and interpretation of the EERA or
the relationship between the personnel commission and the County Office. 	Further-
more, 	giving great weight to an opinion does not make that opinion binding .
Moreover, 	it is well-established that an opinion of the Attorney General is
advisory and not controlling- .
1 54 Ops.Cal.Atty.Gen. 	77 	(1971).
2 Wenke, 	Hitchcock, 	6Cal.3d746, 	752, 	lOOCal.Rptr. 290 	(1972); Ki#g v.
Central Bank, 	18 CaL3d- 840 844, 	134 Cal.Rptr . 	771 	(1977); 	and ~ple v. 	a1lega,
67 Cal.App.3d 847, 	870, ~ 	Cal.Rptr._ 	(1977) .
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3
The fundamental question presented by this case is the relationship in merit
system districts 3 between personnel commissions, governing boards of school
districts and the collective negotiations prescribed by the EERA. 	In merit system
districts neither the governing board alone nor the personnel commission alone
controls the wages of the district's classified employees or is in a position to
exercise full and exclusive authority over the collective negotiation relationship
concerning its classified employees. 	It is only together that the governing board
and the personnel commission control the wages paid classified employees.4
3 Personnel commissions administer a school district's merit or civil service,
system for its classified employees. 	They are composed of three appointed members
(Ed. Code Sec. 45243) whose primary purpose is to establish a classified service of
the non-certificated employees of each school district adopting the merit system.
(Ed. Code Sec. 45260.) 	Merit, or civil service, systems are generally understood
to have been a response to the excesses of the spoils system and constitute an
attempt to eliminate partisan political preferences from the selection and pro-
notion of public employees.
There are 101 K through 12 merit system districts who employ 64,126 classi-
fied employees. 	California Personnel Commissioner School Directory. 	There are
1046 K through 12 school districts employing 132,624 classified employees. 	Ratio
of	f Californi 	l	a Public School Nonteaching Employees to Classroo 	(1975	m Teachers 	(1975) )
Therefore, 	approximately 48.3 percent of the K through 12 classified employees
in the state are covered by merit systems.
4 In California's merit system school districts, 	the authority of the
governing board is shared with the personnel commission in several critical areas
affecting the wages paid to its classified employees. 	The governing board shall
employ, pay and otherwise control its classified employees only in accordance with
the provisions of Article 6, (Ed. Code Sec. 45421) which defines merit systems
and enumerates the powers and obligations of personnel 	commission. 	Education
Code Sections 45268, 45101(a), 45109 and 45276 exemplify the nature of this
shared authority in determining the wages of classified employees. 	Section
45268 provides
The commission shall recommend to the governing
board salary schedules for the classified service.
The governing board may approve, 	amend or reject
these recommendations. 	No amendment shall be
adopted until the commission is first given a
reasonable opportunity to make a written state-
ment of the effect the amendments will have
upon the principle of like pay for like service.
No changes shall operate to disturb the relation-
ship which compensation schedules bear to one
another, as the relationship has been established
in the classification made by the commission.
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The purpose of the EERA, as set forth in Section 3540 is "to promote the
improvement of personnel management and employer-employee relations" by, among
other things, permitting employees to be represented by employee organizations in
their employment relationship with their employer. 	To effectuate this policy
the EERA imposes a mutual obligation on the employer and the exclusive represen-
tative to meet and negotiate in a good faith effort to reach agreement on matters
within the scope of representation. 	The scope of representation unequivocably
includes wages.5
Section 3540 also states:
Nothing contained herein shall be deemed to supersede other
provisions of the Education Code and the rules and regulations
of public school employers which establish and regulate tenure
or a merit or civil service system or which provide for other
methods of administering employer-employee relations, so long
as the rules and regulations or other methods of the public school
employer do not conflict with lawful collective agreements.
Cont.
"Classification" is defined by Education Code Section 45101(a) as follows:
"Classification" means that each position in the classified
service shall have a designated title, a regular minimum
number of assigned hours per day, days per week, and months
per year, a specific statement of the duties required to be
performed by the employees in each such position, and the
regular monthly salary ranges for each such position. 	(Empha-
sis added.)
Ed. Code Sec. 45109 provides that governing boards "shall fix and prescribe
the duties to be performed by all persons in the classified service." 	This
specifically applies to merit system districts. 	Ed. Code Sec. 45276 further
provides that "[t]he position duties shall be prescribed by the 	[governing]
board and qualification requirements... shall be prepared and approved by the
[personnel] 	commission...."
5Section 3543.2 provides, in pertinent part,
The scope of representation shall be limited to matters
relating to wages, hours of employment, and other terms
and conditions of employment. 	(Emphasis added.)
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The EERA clearly does not repeal merit systems. 	Nor are the purposes of the
EERA subordinate to the merit systems.
The EERA clearly and explicitly requires an employer to negotiate about
wages. 	In enacting the EERA, the Legislature must be presumed to have intended
that personnel commissions, with their specifically prescribed obligations
respecting classification of employees, would not defeat the basic purpose of the
EERA. 	In fact, it is a well-understood canon of statutory construction that
... the court should ascertain the intent of the
purpose of the law 	' [E]very statute should be
construed with reference to the whole system of
which it is a part so that all may be harmonized
and have effect'....Such purpose will not be sacri-
ficed to a literal construction of any part of the
act....7
Collective negotiations presuppose that the parties possess serious
intent to adjust their differences and reach an acceptable common ground about
those matters within the scope of representation. 	It is axiomatic that meaningful
negotiations require that the parties engaged in negotiating possess the authority
to affect an agreement and implement the agreement reached.
6 When there is a conflict between legislation enacted at different times
the later enacted legislation repeals that enacted earlier if there is either a
manifested legislative intent to repeal or if the sections are determined to be
irreconcilable. 	People v. Thomas, 53 Cal.2d 121, 126 23 Cal.Rptr. 	161 (1962).
7Select Base Materials 	v. Board of Equalization, 51 C.2d 640, 645 (1959).
81 NLRB Ann. Rep. pp. 85-86; NLRB v. Insurance Agents Union, 361 U.S. 477,
485 (1960); Heinz Co. v. NLRB, 311 U.S. 514, 523 (1941).
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l
Meeting and negotiating is defined by Government Code Section 3540.l(h)
as meaning
.. .meeting, conferring, negotiating and discussing by
the exclusive representative and the public school
employer in a good faith effort to reach agreement on
matters within the scope of representation and the
execution, if requested by either party, of a written
document incorporating any agreements reached, which
document shall, when accepted by the exclusive represen-
tative and the public school employer, become binding
upon both parties....
In the private sector the question of who actually possesses the authority
to determine the wages, hours and other terms and conditions of employment arises
in several contexts. 	A "joint employer" relationship is generally found when
two or more employers share common control of employment conditions.9 	Two or
more employers are found to constitute a "single employer" when there is an inter-
relatedness of operations, centralized control of labor relations, common manage-
ment, and cannon ownership or financial 	control.
,n	10 One employer will be found to
be an "ally" of another, and hence not a neutral innocent by-stander for purposes
of determining whether economic pressure is primary or secondary when one employer
is performing "struck work" for the primary employer or where the employer is
engaged in an integrated, 	straight-line operation.11 In determining whether two
or more companies are engaged in an integrated, 	straight-line operation the NLRB
and the courts look to the degree of common ownership, the common control of the
9 Greyhound Corp. 153 NLRB 1488, 59 LRRM 1665 (1965), enfd. 368 F.2d 778,
63 LRRM 2434 (5th Cir. 	1966).
10 Sakrete of Northern California, 137 NLRB 1220 (1962).
11 Graphic Arts International Union Local 262, AFL-CIO (London Press, Inc.),
208 NLRB 37 (1973).
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day-to-day operations including labor relations, the extent of integration
of the business operations, and the dependence of one employer on the other
for a substantial portion of 	business.12 Finally, 	in determining whether a
union is engaged in lawful primary economic pressure or unlawful secondary
economic pressure, a critical element is whether the struck employer has the
power to settle the dispute or the control over the disputed work.13
12
While none of these concepts is 	entirely apropos, they demonstrate a
fundamental tenet that artificially constructed distinctions will not be permit-
ted to obfuscate the true relationship between apparently autonomous entities to
thwart negotiations between those capable of reaching agreement.
Neither the governing board nor the personnel commission, alone, possesses
the requisite authority under the Education Code to affect and implement an
agreement with SCOPE with respect to wages. 	Both must be a party to negotiations
in order to harmonize the intent of the Legislature in enacting the EERA, with
the shared authority of the governing board and the personnel commission prescribed
by the Education Code.
The conclusion is further buttressed by the fact that Fred Walton is the
personnel director of the County Office, the executive officer of the personnel
commission and a member of the County Office's negotiating team. 	His multiple
functions attest to the recognition by the County Office and the personnel 	,
commission that they are inextricably intertwined in establishing wages, hours
and terms and conditions of employment for the classified employees.
810, Steel, Metal, Alloys and Hardware Fabricators, International
Brotherhood of Teamsters, Chauffeurs, Warehouseman and Helpers of America
(Sid Harvey, Inc.), 189 NLRB 612, 77 LRRM 1191 (197D, enf.den. 460 F.Zd
1, 80 LRRM 2417 (2nd Cir. 1972).
13 NLRB v. Plumbers, Local 638 (Austin Co.), 	U.S. 	, 94 LRRM 2628,
2634 (1977).
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The County Office not only refused to negotiate about the wages to be paid
individual classifications, it entertained proposals on this very matter from
the personnel commission. Such conduct is clearly violative of Section 3543.5(c)
of the EERA. 	It is not clear from the record whether the County Office, in fact,
unilaterally reduced the wages of instructional aides as recommended by the
personnel commission. 	Nor is there any evidence that the proposed reduction of
instructional aide's wages was in any way related to their exercise of rights
guaranteed by the EERA. 	Accordingly, I agree that this portion of the charge
should be dismissed.
II
The majority opinion is silent regarding a threshold question of every
allegation of refusal to negotiate in good faith: 	the appropriate unit. 	An
employer is only obligated to negotiate with the exclusive representative of
the employees in an appropriate unit.14
In this case the parties have stipulated that the negotiating unit for
which SCOPE was recognized as the exclusive representative by the County Office
is defined as follows:
non-supervisory classified employees in the Sonoma
County Office of Education.
This description is identical to that contained in the Memorandum of Understand-
ing reached by the parties.
Sections 3543.5(c) and 3543.6(c) of the EERA impose a mutual obligation
on an employer and an employee organization respectively to meet and negotiate
in good faith. 	Section 3540.l(h) of the Act in turn defines meeting and negoti-
ating as ". ..meeting, conferring, negotiating, and discussing by the exclusive
representative and the public school employer in a good faith effort to reach
agreement on matters within the scope of representation 	" 	Section 3540.l(e)
defines exclusive representative as "...the employee organization recognized or
certified as the exclusive negotiating representative of.. .employees in an
appropriate unit...." 	(Emphasis added.)
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This unit description does not specifically exclude management and confidential
employees as required by the EERA.. 	However, 	in all the circumstances of this case
and since no party contends that this is a critical defect, 	it appears that the
failure of the parties to specifically exclude management and confidential employees
was an inadvertent oversight. 	Nothing suggests that any management or confidential
employees are, 	in fact, 	included in the uni t.15
This unit does not comport to the presumptively appropriate classified units
which we have established by a series of cases beginning with Sweetwater Union
High School District16 • However, 	it "would ill-serve the purposes
of the EERA to disrupt agreement of tine parties made in the interest of the
expeditious handling of representation cases, 	even though there may be some
question about tie unit composition were the matter 	litigated.17 The unit agreed
to by the parties does not contravene any provisions or purposes of the EERA or
flaunt well-established Board policies. 16
, I!
•
• I
Jerilou H. Cossack, Member
15Cf. 	Fisher-New Center Company, 	184 NLRB 809 	(1970) .
16 EERB Decision No. 	4, November 23, 	1976.
17 Pyper Construction Company, 	177 NLRB 707 	(1969 ) .
18 Otis Hospital, 	Inc. , 	219 NLRB 55.
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STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS 	BOARD
SONOMA COUNTY ORGANIZATION OF
PUBLIC EMPLOYEES,
Charging Party,
vs.
SONOMA COUNTY OFFICE OF EDUCATION,
Respondent.
)
) 	Case No. 	SF-CE-3
EERB Decision No.40
November 23, 1977
ORDER
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Pursuant 	to Government Code 	Section 3541.5(c) 	of the Educational
Employment Relations Act, 	it is hereby ordered that:
A. 	The 	Sonoma County Board of Education shall:
1. 	CEASE AND DESIST FROM: 	.
Failing to meet and negotiate 	in good faith upon
request with the exclusive representative of the classified
employees with regard to 	salaries paid to 	individual job
classifications;
Except 	that 	the 	employer shall be under no
obligation to bargain about proposals which would change
the relationships of the individual jobs as 	established
by the personnel commission within an occupational group.
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO EFFECTUATE THE POLICIES OF THE ACT:
a. 	Prepare and post a copy of this order at 	its
headquarters office for twenty 	(20) working days 	in a
conspicuous place at 	the location where notices 	to
classified employees 	are 	customarily posted;

b. 	At the end of the posting period, 	notify the
San Francisco 	Regional Director of 	the Educational Employment
Relations 	Board of the action it has 	taken to 	comply with
this order.
B. 	The allegation of the Sonoma County Organization of
Public Employees 	that 	the 	Sonoma County Office of Education's
Personnel 	Director prepared and 	submitted to 	the Personnel
Commission a 	salary 	study which 	if adopted would unilaterally
reduce 	the 	salary of 	individual 	classifications by 7.5%
is hereby DISMISSED.
Educational Employment Relations 	Board
by
STEPHEN 	BARBER
Executive Assistant to the Board
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EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
SONOMA COUNTY ORGANIZATION OF
PUBLIC EMPLOYEES,
Charging Party,
vs.
SONOMA COUNTY OFFICE OF EDUCATION,
Respondent.
)
)
)
) 	Unfair Case No. SF-CE-3
RECOMMENDED DECISION
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Appearances: 	Doty & Renkow by Peter M. Renkow, for Sonoma County Organization
of Public Employees.
V. T. Hitchcock, Deputy County Counsel, for Sonoma County Office of Education.
Elaine Grillo Canty, Attorney for Amicus Curiae, California School Personnel
Commissioners' Associatio	. 	n in support of Respondent.
Before Ronald E. Blubaugh, Hearing Officer.
STATEMENT OF CASE
On June 3, 1976, the Sonoma County Board of Education (hereafter
"Board") recognized the Sonoma County Organization of Public Employees (here-
after SCOPE) as the exclusive representative of a unit of classified employees
of the Sonoma County Office of Education.
Subsequent to that date, the parties commenced bargaining for a
contract. 	On July 15, 1976, SCOPE filed an unfair practice charge against
the Sonoma County Office of Education (hereafter "employer" or "respondent")
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contending a violation of Government Code Section 3543.2 and 3540(h).—
1/ Because
the parties have reached an agreed statement of facts, the allegations and
responses in the original charge and answer are summarized here in only the
most cursory manner. 	In brief, SCOPE alleged that the employer refused to
meet and negotiate about the salaries of individual job classifications of
employees within its unit. 	The employer denied this and affirmatively defended
on the theory that those matters were within the domain of the district
personnel commission and that the board was precluded from bargaining about
them by the Education Code.
An informal conference was held on this matter on November 23, 1976.
A second informal conference was set for December 10, 1976. 	However, prior
to the start of that conference the parties worked out a set of stipulated
facts. 	The parties waived notice requirements and a formal hearing was
commenced immediately. 	The hearing was continued to March 8, 1977, when the
parties argued the case orally, on the record.
In their agreed statement of facts, the parties give the following
narrative of the events which led up to the charge which was filed with the
Educational Employment Relations Board:
1/ Government Code Section 3543.2 details the scope of representation in
meeting and negotiating. There 	is no 	Government 	Code 	Section 	3540(h)
SCOPE apparently intended to allege a violation of Government Code
Section 3540.1(11) which is the definition of "meeting and negotiating."
This is technically an improper statement of the charge. 	All parties
however 	have treated this case as if there were an allegation that 	'
the employer violated Government Code Section 3543.5(c) by refusing to
bargain over matters contained in Government Code Section 3543 2
Because there was no objection to the manner in which the charge was
filed and because all parties have treated it as cited above, the
hearing officer will do the same.
-
-2-

'
On June 3, 1976, SCOPE submitted to the respondent a
comprehensive statement of proposals upon which to commence
the meet and negotiate process. 	On June 17, 1976, the
Board of Education responded to SCOPE's proposals and
formally indicated the appointment of Dick Bacon, chief
spokesman, and Don Boriolo and Fred Walton, additional
members of the Board's negotiating team. 	Dick Bacon is...
(the employer's) chief deputy superintendent. 	Don Boriolo
is the program manager of the Sonoma County Regional
Occupation Program. 	Fred Walton is the personnel director
in the Sonoma County Office of Education. 	He is also the
executive director of the Personnel Commission.
Sometime after June 3, 1976, the representatives of SCOPE
were made aware of the fact that the Personnel Commission
was scheduled to meet and consider for possible approval a
salary study which analyzed the salary schedule and the
placement thereon of the various non-supervisory job
classifications. 	The study also contained a proposal for
the realignment of reclassification of some of the various
positions on the wage schedule. 	The study and reclassifi-
cation proposal were compiled by Fred Walton.
The representatives of SCOPE requested that the respondent's
negotiating team meet and negotiate regarding the salaries
of individual job classifications prior to any action being
taken by the Board of Education or the Personnel Commission.
These requests to meet and negotiate on the subject of
wages for individual job classifications were denied by
the negotiating team of the Board of Education. 	They
expressed to the SCOPE representatives that changes in the
salary relationships between job classifications or salary
ranges of individual classifications were the exclusive
purview of the Personnel Commission and beyond the scope
of negotiations as outlined in the Rodda Act. 	All other
matters were agreed to....
—3—

and the parties signed a memorandum of understanding about those matters2.
The stipulated facts of the parties are adopted as findings of fact
by the hearing officer.
STATEMENT OF THE ISSUES
1. 	Does Government Code Section 3540 preempt from the scope of
representation all matters within the purview of Personnel Commissions as
outlined in Education Code Section 13701 et seq.?
2 On September 13, 	1976 the parties to this dispute signed a "Memorandum of
Understanding" covering the non-supervisory classified employees unit.
Paragraph two of that understanding declares in part that "the parties to
this agreement acknowledge that this agreement constitutes the result of
meeting and negotiating in good faith as prescribed by Chapter 10.7, Section
3540 et_ seq, of the Government Code of California and further acknowledge
that all matters upon which the parties reached agreement are set forth
herein." 	In the fifth paragraph of that agreement (which is numbered 3 by
the parties), there is the following statement:
Provided that the Employee Relations Board, 	(or if District chooses,
a court of competent jurisdiction including all appellant rights)
confirm the right of SCOPE to meet and negotiate and the obligation
of the District to meet and negotiate regarding salary ranges or
salaries of individual classifications, the District agrees to meet
and negotiate in good faith on salary inequities or prevailing wage
matters forthwith.
No party has raised the issue that the September 13, 1976 agreement made the
unfair practice charge moot. 	Paragraph two of the agreement would seem to
indicate that there was no unfair practice charge remaining. 	Paragraph five
evidences an intent to keep the issue alive. 	Federal precedent indicates
that the signing of a contract by a party which has filed an unfair labor
practice does not automatically moot the charge. 	See General Electric Co.,
163 NLRB 198, 64 LRRM 1312 (1967). 	Additionally, the parties have agreed in
their stipulation of facts involving the instant case that the September 13,
1976 agreement provides "for a determination of this dispute through the
appropriate legal and administrative channels." 	In an appropriate case it
would be necessary to consider the question of mootness. 	But because of the
stipulation of the parties, the hearing officer will not attempt to consider
that issue in the instant case.
-4-

"
2. 	Are the wages for individual job classifications a subject which
has been preempted from the scope of representation in personnel commission
districts by Education Code Section 13719?
3. 	Did the employer commit an unfair practice by refusing to bargain
with SCOPE about a matter within the scope of representation?
THE RELATIONSHIP BETWEEN
THE EDUCATIONAL EMPLOYMENT RELATIONS ACT
AND THE MERIT SYSTEM
The merit system is a form of administering personnel relations for
non-certificated employees in a school district or. a county superintendent of
schools 	office.3 	In merit system districts the school boards relinquish
certain powers and responsibilities to a personnel commission. 	Among the
duties of a personnel commission are the classification 	of employees and
3Provisions 	relating to the creation and operation of the merit system appli-
cable to this case are set forth in Education Code Sections 13701 et_ seq.
4/
— 	As noted by counsel for the California School Personnel Commissioners'
Association in a helpful amicus brief, the term "classification" has an
accepted meaning even though it is not explained in the California codes.
Kaplan, in The Law of Civil Service, defines it on page 120 as follows:
The term "classification of positions"...in most jurisdictions...
relates to the assembling of positions according to duties, functions
and responsibilities so that similar positions may be assigned similar
titles and embraced within the same class descriptive of the functions
of the class of positions. 	The purpose of such classification is to
provide uniform standards, uniform pay scales and an orderly means of
controlling and regulating the status of incumbents. 	It contemplates
fixing titles of positions relative to duties and functions, allocating
positions to their proper classes so that all positions with the same
titles may be in the same class, and allocation of the classes of
positions to their respective salary grades or schedules according
to a devised or designed pay plan.
This definition is recited with approval by the attorney general in the only
reported authority construing the meaning of Education Code Section 13719,
54 Ops. Atty. Gen. 77, 81.
-5-

positions,5/— 	prescription of rules binding on the governing board designed
to insure the selection and retention of employees on the basis of merit —
6/
and the recommendation of a salary schedule for classified employees.7/—
A I
7/
Legislation originally authorizing the creation of merit systems
in California school districts was enacted in 	1935.8 	It was the same year
that the United States Congress enacted the National Labor Relations Act
covering employees in private industry, a time long before any anticipation
that public school employees in California would ever engage in collective
bargaining.
In the more than 40 years since the two statutes were enacted,
a great deal of law and tradition has developed about the separate systems
of collective bargaining and civil service. 	With the enactment of the
Educational Employment Relations Act in 1975, the California Legislature
introduced collective bargaining into the public school system. 	How
collective bargaining and the merit system shall operate together in the
framework of a single employer is a matter of first impression. 	The initial
source of guidance on this question must come from Government Code Section
3540 which declares in part:
5 Education 	Code 	Section 	13712.
6 Education 	Code 	Sections 	13713 	and 	13714.
7 Education 	Code 	Section 	13719.
8 Statutes 	1935, 	Chapter 	618, 	Section 	1.
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111
...Nothing contained herein shall be deemed to supersede other
provisions of the Education Code and the rules and regulations
of public school employers which establish and regulate tenure
or a merit or civil service system or which provide for other
methods of administering employer-employee relations, so long
as the rules and regulations or other methods of the public 	9,
school employer do not conflict with lawful collective agreements.—
In the instant case the employer has declined to bargain with SCOPE
about the salaries of individual job classifications within the u n i t .
10/
—
SCOPE contends that the employer is obligated by the E.E.R.A. to engage in
bargaining about the salaries paid to individual job classifications. 	The
employer defends on the theory that Education Code Section 13719 removes from
the Board the power to change the relationships among classes as established
by the personnel commission.
11/
—
To resolve this apparent conflict, SCOPE urges attention to the
legislative purpose expressed in the E.E.R.A. 	Citing Government Code
Section 3540, SCOPE notes that the purpose of the statute is to "improve
9SCOPE 	reads the case of Los Angeles City and County Employees Union v.
Los Angeles City Board of Education, 12 C.3d 851 (1974) as holding that
"it is the governing board and not the (personnel) 	commission which has
the power to fix and pay wages and salaries." 	(SCOPE's opening brief at
page 6.) 	The hearing officer does not find the decision applicable to
the instant case. 	In Los Angeles City and County Employees Union, the
court does not consider the meaning of the final sentence of Education
Code Section 13719. 	It is that sentence which is the key to the
instant case.
10/It is important to note that the employee organization did not seek to
bargain over the subject of classification. 	There is some precedent
from the National Labor Relations Board to indicate that the classification
of jobs is a mandatory subject of bargaining under federal law. 	See
Latin Watch Co., 156 NLRB 203, 61 LRRM 1021. 	Whether that precedent
would be followed in California and, if followed, its effect on merit
system districts, are issues not presented in the instant case. 	According
to the stipulated facts, the instant case involves a refusal to bargain
about "the salaries of individual job classifications." 	This opinion,
therefore, does not consider what would happen if an employee organization
sought to bargain over job classifications established by a personnel
commission.
—
11 See 	Page 	8.
- 7 -

-8-
employer-employee relations and provide a uniform basis for regulating
employment relations with public school employers." 	This, SCOPE continues,
should lead to a construction of the statutes which applies uniformly among
all school districts regardless of whether or not they have adopted the merit
system. 	SCOPE would accomplish uniformity by reading the Act to allow
collective bargaining agreements to supersede any rules and regulations of
a personnel commission.
The employer argues that under Government Code Section 3540 the
Educational Employment Relations Act does not supersede the sections of the
Education Code which relate to personnel commissions. 	The employer reasons
that the legislature took "pains" to protect the functions of the merit
system and that conflicts between the merit system and the E.E.R.A. must be
resolved in favor of the merit system.
11/Government Code Section 3543.5(c) makes it unlawful for an employer to
"refuse or fail to meet and negotiate in good faith with 	an exclusive
representative." 	Government Code Section 3543.2 fixes the scope of
representation at "matters relating to wages, hours of employment, and
other terms and conditions of employment." 	It is admitted in the
stipulation that the employer refused to bargain over the wages paid to
individual job classifications. 	This is a prima facie violation of the
Act. 	SCOPE argues that nothing more need be considered. 	According to
SCOPE, if the legislature had intended to limit negotiations over "wages"
between exclusive representatives and employers with personnel commissions
it would have done so with some specific language. 	SCOPE points to the
definition of "terms and conditions of employment" in Section 3543.2
and notes that there is no similar limiting definition of "wages."
Therefore, reasons SCOPE, the legislature intended no limit on bargaining
about wages. 	But this reading of the statute ignores the respondent's
principal defense, namely that Government Code Section 3540 specifically
provides that the E.E.R.A. shall not supersede the Education Code. 	A
tribunal interpreting a statute cannot be blind to all the provisions of
that statute because it must be presumed that in enacting a statute every
provision was inserted for a purpose and that nothing was done in vain.
Select Base Materials v. Board of Equalization (1959) 51 C.2d 640, 645;
Reimel v. Alcoholic Beverages, etc. Appeals Bd. (1967) 256 C A . 158, 167.
—

Amicus argues that personnel commissions have been given a great
deal of legal independence from school boards. 	The commissions have inde-
pendent management powers and authority to serve as a check on school boards
and the E.E.R.A. does not change that relationship. 	Amicus places heavy
reliance on Education Code Section 13719 as a bar to negotiations about the
placement of individual positions on the salary schedule. 	Amicus contends
that SCOPE'S reading of the E.E.R.A. would give governing boards in personnel
commission districts power which they did not formerly have.
The parties have cited a number of authorities as guides for the
interpretation of statutes.
In attempting to devine the meaning of Government Code Section
3540, it is helpful to note that the language contained therein is not
entirely original 	to 	the 	E.E.R.A. 	The Winton Act12 — 	had 	similar language13 —
but an important addition was made with the enactment of Government Code
Section 3540. 	As quoted above, the newer section, after reciting an intention
not to supersede other laws and regulations, continues as follows:
...so long as the rules and regulations or other
methods of the public school employer do not conflict
with lawful collective agreements.
12Former 	Education Code Section 13080 et_ seq.
13/13 Former Education Code Section 13080 read in part:
It is the purpose of this article to promote the improvement of
personnel management and employer-employee relations within
the public schools in the State of California.... 	Nothing
contained herein shall, be deemed to supersede other provisions
of this code and the rules and regulations of public school
employers which establish and regulate tenure or a merit or
civil service system or which provide for other methods of
administering employer-employee relations....
-9-

From this addition, one can infer that while the legislature
clearly intended that the E.E.R.A. 	should not preempt certain existing laws
and practices, it also clearly intended that some of those practices should
not block collective agreements. 	The challenge, however, is to decide which
matters are excluded from the reach of the E.E.R.A.
A division of the applicable part of Government Code Section 3540
suggests the legislature intended that:
1. 	Nothing in the E.E.R.A. shall supersede the Education
Code;
2. 	Nothing in the E.E.R.A. shall supersede the rules and
regulations of public school employers which establish
and regulate tenure or a merit or civil service system
or which provide other methods...so long as the rules
and regulations or other methods...of the public school
employer dp not conflict with lawful collective
agreements.
Under this reading, the Education Code will supersede all
•negotiated contracts while rules and regulations of a public school employer
may be preempted by a lawful contract. 	In an appropriate case it would
next be necessary to decide whether the statutory reference to "the rules
and regulations...of the public school employer" includes the rules and
regulations of a personnel commission. 	In the instant case, however, such
an inquiry is not necessary because of Education Code Section 13719. 	The
section is specifically applicable to SCOPE'S demand that the employer
bargain.
The final inquiry, therefore, must concern the meaning of that
code section.
-10-

"'
INDIVIDUAL JOB CLASSIFICATIONS
AND EDUCATION CODE SECTION 13719
Under the analysis above, nothing in the E.E.R.A. shall supersede
any specific provision of the Education Code. 	Therefore, the scope of
bargaining can be no greater than the authority of the respondent under the
Education Code. 	Citing Education Code 13719, respondent takes the position
that with respect to job classifications it has no authority to change the
relationships between job categories. 	Thus, respondent continues, it has no
obligation to bargain on the matters which SCOPE has demanded to bargain.
Education Code Section 1371914 — 	is a troubling collection of
sentences. 	There is no reported court decision which construes the meaning
of that section. 	The sole guide is a 1971 opinion of the California Attorney
15/
General.— 	(The opinion describes the final sentence of this section as
"terse and difficult to interpret" and suggests that "legislative clarification
would be helpful.") 	The conclusion of the attorney general is that the first
three sentences of the section evidence legislative intent "to repose ultimate
control over wages and salaries in the governing board rather than in the
14 Education 	Code 	Section 	13719 	reads 	as 	follows:
The commission shall recommend to the governing board salary
schedules for the classified service. 	The governing board
may approve, amend, or reject these recommendations. 	No
amendment shall be adopted until the commission is first
given a reasonable opportunity to make a written statement
of the effect the amendments will have upon the principle of
like pay for like service. 	No changes shall operate to"
disturb the relationship which compensation schedules bear to
one another, as the relationship has been established in the
classification made by the commission.
15 54 Ops. 	Atty. 	Gen. 	77. 	SCOPE argues that this opinion by the attorney
general should be given little weight because it was authored prior to
the enactment of the E.E.R.A. 	However, the E.E.R.A. did not purport to
change Education Code Section 13719. 	Because Education Code Section
13719 is controlling in this case, it is necessary to look at the only
reported authority interpreting that section.
-11-

personnel commission.16/"— 	However, that authority is limited by the
restriction in the final sentence of the section.
' '- I
Under the attorney general's interpretation, other parties than
the personnel commission may make recommendations to the governing board
about salary schedules. 	The board can adopt these recommendations so long
as they "do not operate to disturb the relationship which salary schedules
bear to one another, as that relationship has been established in the
classification made by the commission."—
17 /
The opinion then continues with this key observation:
...This classification relationship may not be disturbed
by action of the governing board in making changes in the
compensation schedules; however, we do not view such
relationships as being necessarily "disturbed" if the
governing board decreases or increases the salary
differential between two non-equal positions, so long as
each remains effectively higher or lower as such relative
relationships have been established by the personnel
commission 	classification.18
The following hypothetical example will illustrate what the opinion
holds. 	Suppose a particular county superintendent of schools employs data
processing workers, business office workers, audio-visual technicians, clerical
workers and custodians. 	Suppose further that the highest paid of these
classifications is that of the data processing employees who receive salaries
that are roughly five percent higher than those paid to business office
workers. 	Suppose further that the business office workers earn salaries ten
percent higher than the audio-visual technicians who in turn earn salaries
1654 	Ops. Atty. Gen. 77, 84.
1754 	Ops. Atty. Gen. 77, 85.
18 54 Ops. 	Atty. 	Gen. 	77, 	85.
-12-

five percent higher than the clerical workers who in turn earn salaries
three percent higher than the custodians. 	Finally, suppose the county
superintendent operates under the merit system and the relationship between
the above classifications were set by the personnel commission.
Under the attorney general's opinion, the county board of
education would be able to change the gap between the data processing workers
and business office workers from five percent to six percent. 	It could
change the gap between the business office workers and the audio-visual
technicians from ten percent to seven percent. 	However, the board of
education would be prohibited from decreasing the salaries of the business
office workers so much that they then tumble beneath the salaries paid to
the 	audio-visual 	technicians.19
In summary, the attorney general would allow changes in the size
of the salary differential between the various job classifications. 	The
prohibition is against changes which would lift a classification which
formerly was lower paid above one which formerly was higher paid.
19 The hypothetical 	illustration above 	is 	somewhat 	simplified 	from what would
occur in actual practice. 	Typically, most parties negotiate over benchmark
classifications. 	Other similar jobs are grouped around the benchmarks.
What the attorney general's opinion would allow an individual school board
to do in a given case would be determined according to whether the personnel
commission had classified all jobs. 	If the commission had classified all
jobs and fixed the relationship of each job to every other job, 	the attorney
general would not allow any job to be moved above or below any other job
within the district. 	If the commission had only established the relationship
of the benchmark positions in each job family, the attorney general
presumably would allow changes in relationship of the non-benchmark jobs
with each other, so long as there was no change in their relationship to the
benchmark positions fixed by the personnel commission.
-13-

While opinions of the attorney general do not have the same
authority as decisions by a court, they are given considerable weight when
the attorney general has issued an interpretation of a statute and the
legislature has subsequently taken no action. 	In one case involving a code
section which the attorney general had previously interpreted, the court
wrote:
It must be presumed that the aforesaid interpretation has
come to the attention of the Legislature, and if it were
contrary to the legislative intent that some corrective
measure would have been adopted in the course of the many
enactments on the subject in the meantime. 	(Meyer v.
Board of Trustees, 	195 C A . 	2d 420 at 432 	(1961)).20
The attorney general's opinion above-discussed was issued nearly
six years ago in May of 1971. 	The legislature made numerous changes in the
statutes involving the merit system during the 1972, 1973, 1974 and 1975
sessions. 	It left unmodified Education Code Section 13719. 	For that reason
the hearing officer will therefore adopt the attorney general's interpretation
of Section 13719.
Applying that interpretation to the facts of the instant case, it
is clear that the Sonoma County Board of Education had the authority to make
some modifications in the salaries paid to individual job classifications.
It is undisputed that the employer refused to bargain about this
subject. 	Therefore, the employer has violated Government Code Section
3543.5(c) by refusing to bargain over a matter within the scope of representation.
20 In 	People v. Union Oil Co., 268 C A . 	2d 566 	(1968), 	the court noted the
importance of the passage of time following the publication of an opinion
by the attorney general. 	The court held that "the lapse of time since
the first announcement of that view supports the inference that, if it
were contrary to legislative intent, some corrective measure would have
been adopted," 268 C A . 2d 566, 571. 	See also California State Employees
Association v. Trustees of Cal. State Colleges, 237 C A . 2d 530 (1965).
-14-

ORDER
Upon the foregoing findings of fact, conclusions of law, and the
entire record of this case, and pursuant to Government Code Section 3541.5(c)
of the Educational Employment Relations Act, it is hereby ordered that the
Sonoma County Board of Education, superintendent and representative shall:
A. 	CEASE AND DESIST FROM;
Failing to meet and negotiate in good faith upon request with the
exclusive representative of the classified employees with regard to salaries
paid to individual job classifications;
Except that the employer shall be under no obligation to bargain
about proposals which would change the relationships of the individual jobs
as established by the personnel commission.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE
POLICIES OF THE ACT:
1. 	Prepare and post at its headquarters office for twenty (20)
working days in a conspicuous place at the location where notices to classified
employees are customarily posted, a copy of this order;
2. 	At the end of the posting period, notify the San Francisco
Regional Director of the Educational Employment Relations Board of the action
it has taken to comply with this order.
Pursuant to Title 8, Cal. Admin/ Code 35029, this recommended
decision and order shall become the final decision and order of the Board
itself on April 1, 1977 unless a party files a timely statement of exceptions.
See 8 Cal. Admin. Code 35030.
Dated March 18, 1977.
Ronald E. Blubaugh
Hearing Officer
-15-