San Lorenzo Unified School District (PERB 0274E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED PUBLIC EMPLOYEES 	LOCAL 	390,
SERVICE 	EMPLOYEES 	INTERNATIONAL 	UNION,
AFL-CIO,
Charging 	Party,
v.
SAN 	LORENZO 	UNIFIED SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-490
PERB Decision No. 	274
December 29, 	1982
Appearances; 	Robert J. 	Bezemek, 	Attorney 	(Van Bourg, 	Allen,
Weinberg 	& 	Roger) 	for 	United 	Public Employees 	Local 	390,
Service Employees 	International Union, 	AFL-CIO; 	John A. 	Hudak,
Attorney 	(Breon, 	Galgani 	& Godino) 	for 	San Lorenzo Unified
School 	District.
Before Tovar, Morgenstern 	and Jensen, 	Members
DECISION
JENSEN, Member: 	This case is 	before 	the Public
Employment 	Relations 	Board 	on 	exceptions 	to 	the 	hearing
officer's 	proposed 	decision 	filed 	by 	both 	the 	San Lorenzo
Unified 	School 	District 	(hereafter 	District) 	and 	United
Public Employees Local 	39 0, 	Service Employees
International Union, AFL-CIO 	(hereafter 	SEIU or Union).
The 	hearing 	officer 	found 	the District 	to 	have 	violated
subsections 3543.5(a), 	(b) 	and 	(c) 	of the Educational
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Employment 	Relations Act 	(EERA)1 by 	refusing 	to 	negotiate
with SEIU 	before 	making 	a 	recommendation 	to 	the 	personnel
commission of 	the 	salary 	range 	for 	a newly created 	position of
lead 	custodian. 	We 	find 	that 	the 	recommendation 	to 	the
personnel commission was 	not made 	by 	the 	District 	but 	by
David Horn, 	acting 	in 	his 	capacity 	as 	director 	of 	classified
personnel 	for 	the 	personnel commission. 	Inasmuch 	as 	the
District 	has 	at 	all 	times 	been 	willing 	to 	negotiate 	with SEIU
the 	actual wages 	for 	the 	lead 	custodian position, 	we 	find 	no
violation 	of EERA 	and 	dismiss 	the 	charges.
FACTS
Since 1977, 	SEIU has 	been 	the 	exclusive 	representative 	of 	a
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise specified, 	all references 	shall 	be 	to
the 	Government Code.
Subsections 3543.5(a), 	(b) 	and 	(c) 	provide as follows:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose reprisals
on 	employees, 	to discriminate or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to interfere with, 	restrain, or 	coerce
employees 	because of 	their 	exercise of 	rights
guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
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classified 	negotiating 	unit 	of 	the 	District's 	maintenance 	and
operations 	employees, 	including custodians.
In May or June 	1980, 	the District 	administration 	began
studying 	reorganization of 	its 	custodial 	services.
Specifically, 	rather 	than 	assigning 	custodians 	to a particular
school site, 	it was proposed that 	a roving crew, 	under 	the
supervision 	of 	a new classification of 	lead custodian, 	be
responsible 	for 	the 	cleaning of 	several 	schools.
David Horn 	serves 	both 	the 	board 	of 	trustees 	and 	the
personnel 	commission. 	Horn's 	responsibility 	to 	the 	board 	of
education 	is 	to 	serve 	as 	the 	coordinator 	of 	staff 	relations 	and
to 	be 	responsible 	for 	negotiations 	with 	all District
employees. 	Horn's 	responsibility to 	the 	personnel 	commission
is 	to serve 	as 	a member 	of 	the 	personnel commission 	as 	the
director 	of 	classified 	personnel.
Horn 	testified 	that 	whenever 	a new 	position 	is 	created 	the
board 	of 	trustees 	has 	the 	legal 	responsibility 	to 	approve 	the
job description. 	The 	personnel commission has 	the
responsibility 	to 	assign 	the 	new 	classification 	to 	an
appropriate 	range 	within 	the 	classification 	system 	in 	the
District.
In early June 	1980, 	Horn met with Union representatives 	to
discuss 	the 	new 	lead custodian 	classification. 	In August 	1980,
Kathryn Haymes, 	the Union field representative, 	telephoned Horn
and 	told 	him 	that 	the District was 	obligated 	to 	negotiate 	the
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wages 	for 	the 	new 	position, 	and 	that 	the 	subject 	should 	be
brought 	up 	in 	the 	pending 	negotiations 	between 	the 	parties.
Haymes 	testified 	that Horn 	expressed 	unequivocally 	that 	the
District 	intended 	to negotiate wages 	with 	the 	Union. 	Haymes
interpreted 	Horn's 	reply 	to 	encompass 	negotiations 	over 	both
wages 	and 	salary range. 	Horn's memory of 	this 	telephone
conversation was 	sketchy, 	but he 	did 	testify 	that he 	told
Haymes 	that 	the District would negotiate 	salaries, 	the wages 	of
all District 	employees.
Horn 	personally prepared 	the 	position 	description 	for 	the
lead custodian, 	based on 	discussions 	with 	the 	administrator 	of
building 	and 	grounds 	as 	to 	the 	duties 	which would 	be 	assigned
to 	the 	lead 	custodian 	position. 	In 	his 	role 	as 	director 	of
classified personnel, 	and 	pursuant 	to 	the 	request 	and 	direction
of 	the 	personnel 	commission, 	Horn 	recommended 	that 	the 	new
position be 	assigned to Range 	24. 	He developed his
recommendation by looking 	at 	other 	job classifications 	within
the 	District 	and 	finding 	that 	the 	lead 	custodian position was
very 	similar 	to 	that 	of 	the 	assistant 	high 	school 	building
foreman's position 	in 	that 	both 	positions 	supervise 	crews 	of
custodians.2
2NO management 	employee, 	other 	than 	Horn, 	was 	directly
involved 	in making 	the 	recommendation. 	Nor 	were 	any written
recommendations 	or 	comments 	from 	any 	District 	employee 	(except
Horn) 	in evidence.
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At an August 20, 	1980 meeting, pursuant to Horn's
recommendation, 	the 	personnel 	commission 	created 	the 	position
of 	lead 	custodian 	and 	assigned 	it 	to Range 	24 on 	a 	salary
schedule 	($1,002 	- $1,192 	per 	month). 	Haymes was present and
objected 	to 	the 	commission's 	unilateral 	assignment 	of 	the
position 	to 	a 	salary 	range 	without 	first 	negotiating 	with 	the
Union. 	Haymes 	also said, 	however, 	that 	the range 	assigned 	by
the 	commission 	probably was 	the 	appropriate one.
At 	the meeting, 	Horn told Haymes 	that 	it was 	the personnel
commission's 	responsibility 	to 	set 	the 	salary 	range 	for 	the 	new
position, 	but 	that 	the 	Union could negotiate 	a general 	salary
increase for 	the 	entire negotiating 	unit so that, 	in effect, 	it
would 	be 	able 	to 	negotiate 	the 	wages 	for 	the 	new 	position.3
Before 	creation of 	the 	lead 	custodian 	position, 	the 	parties
had 	begun 	contract 	negotiations 	in May 	1980. 	The 	Union's
initial proposal on custodians' 	salaries 	included 	a 	10-percent
"equity" 	adjustment 	on 	top of 	the 	general wage 	increase
proposed 	for 	the 	entire 	unit. 	At 	the 	time 	of 	the 	hearing, 	the
parties' 	negotiations were 	still ongoing.
3Even 	though 	the 	new 	lead 	custodian 	positions 	were 	not
created 	until 	the August 	20, 	1980 	personnel 	commission meeting,
the 	custodial 	reorganization 	actually was 	implemented 	on
June 30, 	1980 at 	the close 	of 	the 	previous 	school year.
Regular 	custodians 	temporarily 	filled 	the 	positions 	at 	their
old 	rate 	of 	pay and, 	upon 	approval 	of 	the 	position 	and 	salary
range 	by 	the 	personnel 	commission, 	were 	given 	back 	pay 	to
July 	1.
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DISCUSSION
Duty 	to 	Negotiate
We 	are 	faced 	with 	the 	question of 	whether 	the 	District 	had
an obligation 	to 	negotiate 	over 	the 	initial 	salary
classification of 	the 	newly created 	job classification 	of 	lead
custodian. 	Section 	45268 of 	the Education Code4 gives 	the
personnel 	commission 	authority 	to 	recommend 	to 	the 	governing
board 	salary schedules 	for 	classified service. 	Thus, 	in this
case, 	the 	inquiry must 	focus 	upon whether 	the 	personnel
commission's 	recommendation on 	the 	initial 	salary 	range 	for 	the
lead 	custodian 	position 	is 	negotiable 	or 	within 	the 	exclusive
province 	of 	the 	personnel 	commission.
The Union's 	position 	is 	that 	neither 	the 	District 	nor 	the
personnel 	commission may 	take 	any 	action 	with 	respect 	to 	the
salary 	of 	a 	newly 	created 	position 	until 	the Union 	has 	been
4Education 	Code 	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
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.
[Emphasis 	added.]
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given 	an 	opportunity 	to 	negotiate 	the 	position's 	placement 	on
the 	classified 	salary schedule. 	The 	District's position, 	on
the 	other 	hand, 	is 	that 	the 	personnel commission 	is 	empowered
to 	initially recommend 	the 	salary 	range 	for 	a 	newly-created
position, 	and only 	then may 	the Union 	and 	the District
negotiate 	different 	wage 	rates. 	The 	District's position has
merit.
In Sonoma County Board of Education v. 	PERB 	(1980) 	102
Cal.App.3d 	689 	[163 Cal.Rptr. 	464], 	the court addressed whether
a merit 	system 	school 	district 	was 	required 	to 	negotiate 	wages
previously 	set 	pursuant 	to 	the 	personnel 	commission's
recommendation under Education Code 	section 45268, 	supra. 	The
court 	held 	the 	school 	district 	could 	negotiate 	salaries 	so 	long
as 	the 	relationship between 	salaries 	for 	job classifications
within 	the 	same 	occupational 	group, 	as 	established 	by 	the
personnel commission, 	remains 	the 	same.
The 	court 	stated:
. 	. 	. 	[N]o restriction is 	imposed 	upon the
[School] 	Board 	under 	the 	provisions 	of
section 	45268 	in 	negotiating 	salary
adjustments 	for 	individual 	job
classifications 	within 	the 	same 	occupational
group 	provided 	that 	the 	relationship 	between
such 	individual positions 	as 	established 	by
the 	[personnel] 	commission remains 	intact.
(102 Cal.App.3d 	681 	at 	702.)
In Sonoma, 	the 	court does 	not specifically address 	the 	issue of
who 	sets 	the 	salary range 	for 	newly created 	positions, 	but
suggests 	that 	the 	personnel 	commission 	has 	the 	statutory
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authority 	to do so. 	The 	hearing 	officer 	in 	the 	instant 	case 	so
concluded, 	stating, 	"If 	these 	relationships cannot 	be disturbed
once 	initial 	salary levels 	are 	set, 	it 	is only logical 	that 	the
personnel 	commission must 	have 	authority 	to 	set 	salary 	rankings
in 	the 	first 	place. 	The 	personnel 	commission's 	statutory
authority 	to 	set 	classification 	relationships 	would 	be
effectively 	thwarted 	if 	before 	it 	could 	act, 	salaries 	for 	new
positions 	were 	negotiated 	between 	the 	Union and 	the 	District".
(Hearing 	officer's 	decision, 	pp. 	8-9.) 	We 	conclude 	that 	the
personnel commission, 	pursuant 	to Education Code 	section 	45268,
supra, 	does 	have 	the 	sole 	statutory authority 	to 	set 	the
initial 	salary 	ranges. 	Once 	established, 	the District would 	be
under 	the 	obligation 	to 	negotiate 	with 	the Union over 	wages.
The hearing officer, 	however, went 	further, 	finding that
the 	District 	effectively 	recommends 	to 	the 	personnel 	commission
the 	salary ranges 	for 	new positions, 	and 	therefore 	he 	imposed
an obligation 	upon 	the District 	to 	negotiate 	over 	the
recommendation 	for 	the 	salary 	range 	given 	to 	the 	personnel
commission. 	A review 	of 	the 	record 	demonstrates 	that 	this
finding 	is not 	accurate. 	Horn, 	the director 	of classified
personnel, 	makes 	the 	recommendation to 	the 	personnel
commission, which, 	in turn, 	after 	accepting or 	rejecting that
recommendation, 	makes 	its 	recommendation 	to the 	board of
trustees. 	Horn works 	for 	both 	the 	board of 	trustees 	and 	the
personnel 	commission. 	Horn's 	responsibility 	to 	the 	board 	of
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education 	is 	to 	coordinate 	staff 	relations 	and 	to 	serve 	as
negotiator 	for 	the 	board. 	Horn 	is 	also responsible 	to the
personnel 	commission 	and 	serves 	as 	its 	director 	of 	classified
personnel. 	Thus, 	Horn's recommendation to the personnel
commission 	is 	made 	in 	his 	capacity 	as 	director 	of 	classified
personnel, 	whose 	specific responsibility it 	is 	to prepare 	the
recommendation 	of 	newly 	created 	positions 	to 	the 	personnel
commission. 	Under 	these 	facts, 	we 	can 	find no duty upon 	the
District 	to 	negotiate 	over 	the 	recommendation 	to 	the 	personnel
commission. 	The 	recommendation 	comes 	through 	the 	individual
delegated 	the responsibility of 	making 	the 	recommendation 	to 	the
personnel 	commission. 	The 	record 	indicates 	that 	the 	District
was 	at 	all 	times 	willing 	to negotiate over 	the wages 	for 	the
new 	position of 	lead 	custodian 	and 	was 	negotiating 	at 	the 	time
of 	the hearing 	in this case. 	We, 	therefore, 	reverse the
hearing 	officer's 	finding of 	a violation.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	the 	Public Employment
Relations 	Board 	hereby 	DISMISSES 	the 	charge 	filed 	by United
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Public Employees Local 	39 0, 	Service Employees 	International
Union, 	AFL-CIO, 	against 	the San Lorenzo Unified School District
Members Tovar 	and Morgenstern 	joined 	in 	this 	decision.
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