Long Beach Unified School District (PERB 0325E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TEACHERS ASSOCIATION OF LONG BEACH,

Charging Party, Case No. LA-CE-1634
Ve PERB Decision No. 325
LONG BEACH UNIFIED SCHOOL DISTRICT, July 8, 1983

Respondent.

ae et Nee eee Nee? See eet Mee? See eet

Appearances: Michael R. White, Attorney for Teachers
Association of Long Beach.

Before Gluck, Chairperson; Jaeger and Morgenstern, Members.
DECISION
GLUCK, Chairperson: The Teachers Association of Long Beach
(TA) appeals the dismissal of .its charge for failure to state a
prima facie case. The charge states that, pursuant toa

reorganization of its special education programs, the Los

Angeles County Superintendent of Schools transferred certain
teachers to the Long Beach Unified School District (District).

Details of this action are not given. The charge does state

that the TA filed a writ of mandamus in the Los Angeles County
Superior Court in August 1982 alleging that the District

violated sections 44903.7 and 45028 of the California Education

Code by not granting to the transferred employees “appropriate

seniority, salary and other benefits." The relief asked of the

court, 	and 	now 	of 	the 	Public 	Employment Relations 	Board 	(PERB),
includes: 	(1) 	granting 	seniority 	and 	other 	rights 	and
privileges 	to 	avoid 	penalizing 	the 	transferred 	employees; 	(2)
restoration 	of 	compensation 	unlawfully 	withheld 	and 	(3)
placement of 	the 	employees 	on 	seniority 	and 	salary 	steps 	to
avoid 	such 	penalty.
The 	court 	dismissed 	the 	writ, 	concluding 	that 	because 	the
case 	involved 	wages, 	the 	TA must 	exhaust 	its 	administrative
remedy 	at 	PERB. 	The 	TA 	then 	filed 	this 	charge 	alleging 	that
the 	District 	violated 	subsections 	3543.5(a), 	(b), 	(c) 	and 	(d)
of 	the 	Educational Employment 	Relations 	Act 	(EERA)l. 	The
regional 	attorney 	who processed 	the 	charge 	found 	it
insufficient 	and 	gave 	TA 	30 	days 	to 	furnish 	additional 	facts.
Upon 	TA's 	failure 	to 	respond 	within 	the 	time 	provided, 	the
regional 	attorney 	dismissed 	the 	charge 	with 	leave 	to 	amend.
The 	TA 	then 	filed 	th is 	appeal 	II in 	order 	to 	exhaust 	its
administrative 	remedies." 	The 	District 	did 	not 	respond.
DISCUSSION
The 	charge 	is 	perfunctory 	at 	best 	and, 	although 	citing 	all
of 	the 	employer 	unfair 	practice 	sections 	of 	the 	Act, 	provides
no 	facts 	establishing 	our 	jurisdiction. 	It 	refers 	to
violations 	of 	the 	Education Code. 	It 	is 	true 	that 	the 	sections
lEERA 	is 	codified 	at 	Government Code 	section 	3540 	et
seq. 	Section 	3543.5 	defines 	the 	various 	employer 	unfair
practices.
2

of 	that Code 	cited 	contain 	references 	to matters 	which 	are
within 	the 	range 	of 	EERA's 	scope 	provisions: 	wages 	and
transfer 	policy.2 	Nevertheless, 	although we 	are 	obligated 	to
harmonize provisions 	of 	the 	Code 	and 	EERA, 	we 	are 	not 	empowered
to 	enforce 	the 	first 	of 	these 	Acts. 	We 	are 	limited 	to
determining 	whether 	Long 	Beach, 	the 	receiving 	District, 	by
accepting 	the 	transfers, 	unlawfully 	interfered 	with 	any 	EERA
rights 	granted 	to 	the 	employees 	or 	TA, 	or 	breached 	its
statutory duty 	to 	bargain 	in 	good 	faith 	on 	matters 	related 	to
the 	transfers 	on 	which 	it 	had 	the 	authority 	to 	act.
It 	is 	at 	least 	arguable 	that 	the 	County Superintendent 	of
Schools, 	which 	initiated 	the 	transfers, 	was 	obligated 	to 	notify
the 	TA 	of 	its 	intentions 	and 	afford 	it 	the 	opportunity 	to
negotiate 	on 	matters 	within 	its 	authority3. 	But 	the 	charge
is 	against 	the 	receiving district. 	TA may 	have 	the 	right 	to
negotiate 	with 	the 	District 	the 	wages 	and 	other 	unidentified
"rights 	and 	privileges" 	to 	which 	the 	transferees 	would 	be
entitled 	on 	their 	new 	jobs.4 	But, 	unlike 	the 	employer 	whose
2see 	section 	3543.2 	which 	lists 	those 	subjects 	within 	the
scope 	of 	mandatory 	negotiations.
3san Mateo 	County Community College 	District 	(6/8/79)
PERB 	Decision 	No. 	94; 	Katz 	v. 	NLRB 	(1962) 	369 	U.S. 	736 	[50
LRRM 	2177). 	Also, 	GrantJoint uri'Ion 	High 	School 	District
(2/26/82) 	PERB 	Decision 	No. 	196.
4we 	do 	not 	decide 	here 	whether 	the 	cited 	Education 	Code
provisions preempt 	the 	District's 	duty 	to 	negotiate. 	See
San 	Mateo 	City School 	District 	v. 	PERB; 	CSEA v. 	PERB;
Healdsburg 	Union 	High 	School Districtv. 	PERB 	_ 	Cal 	3d 	__ ,
SF 	24401.
3

actions 	alter 	the 	status 	quo, 	the 	District 	was 	not 	obligated 	to
take 	the 	initiative 	with 	respect 	to 	providing 	notice 	and
opportunity 	to 	bargain. 	Analogous 	to 	the 	obligation
confronting 	a 	newly 	certified 	organization, 	TA had 	the 	initial
burden 	of 	demanding 	negotiations 	on 	behalf 	of 	the 	District's
new 	employees. 	The 	charge 	fails 	even 	to 	hint 	that 	TA made 	such
an 	effort, 	its 	only 	action, 	several 	months 	after 	the 	transfers,
being 	to 	proceed 	directly 	to 	court. 	Failure 	to 	request
negotiations 	on 	the 	impact 	of 	a 	managerial 	decision 	is 	fatal 	to
a 	later 	charge 	(Newman-Crows 	Landing 	Unified 	School 	District
(6/30/82) 	PERB 	Decision 	No. 	223).
The 	TA did 	not 	act 	on 	the 	opportunities 	afforded 	by 	the
regional 	attorney 	to 	amend, 	or 	furnish 	facts 	in 	support 	of, 	its
conclusory 	charge. 	It 	has 	yet 	to 	claim 	that 	it 	demanded
negotiations 	or 	that 	a 	contract provision 	or 	existing
negotiable 	policy 	has 	been 	altered 	without 	notice 	and
opportunity 	to 	bargain. 	Rather, 	it 	single-mindedly 	insists
that 	the 	Education 	Code 	has 	been 	violated 	and 	it 	wants
compliance 	with 	that 	Code 	through 	the 	courts. 	We 	interpret
TA's 	position 	as 	contending 	that 	the 	relief 	it 	seeks 	is
mandated 	by 	Code 	provisions 	which 	supersede 	those 	of 	EERA
requiring 	negotiations 	on 	certain matters. 	Whether 	its
interpretation of 	either 	Act 	is 	correct 	is 	immaterial; 	TA 	has
failed 	to 	state 	a 	prima 	facie 	case 	of 	violation 	of 	any 	of 	the
EERA sections 	it 	cites 	in 	its 	charge.
4

ORDER
The 	charge 	filed 	by 	the 	Teachers 	Association 	of 	Long 	Beach
against 	the 	Long 	Beach 	Unified 	School 	District _.is 	DISMISSED
without 	leave 	to 	amend 	and 	no complaint 	shall 	issue 	thereon.
Members 	Jaeger 	and Morgenstern 	joined 	in 	this 	Decision.
5

ST/,,'f. OF CAt!f';)"Nl.6.
==--======================
PU9,UC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Suite 102
Socromento1 California 	95814
(916) 322-.3198
October 	19, 	1982
Michael White, 	Esq.
Attorney 	for 	Teachers 	Association
of 	Long 	Beach
P.O. 	Box 	92888
Los 	Angeles, 	CA 	90009
!:D,\',llND G. BROWN JR., Govemcr
- 	- 	-
Re: 	Teachers 	Association 	of 	Long 	Beach 	v. 	Long 	Beach 	Unified
School 	District, 	Charge 	No. 	LA-CE-1634
Dear 	Mr. 	Whit2:
I 	indicated 	to 	you 	in 	my 	letter 	dated 	October 	7, 	1982 	that 	this
charge 	does 	not 	state 	a 	prima 	facie 	case 	and 	that 	unless 	you
amended 	the 	charge 	to 	state 	a 	prima 	facie 	case 	or 	withdrew 	it
prior 	to 	October 	14, 	1982, 	it 	would 	be 	dismissed 	without 	leave
to 	c,rnend.
I 	have 	not 	:received 	any 	communication 	from 	you 	and 	am,
therefore, 	dismissing 	the 	charge, 	without 	leave 	to 	amend, 	for
the 	following 	reasons.
The 	above-referenced 	charge 	alleges 	that 	the 	Long 	Beach 	Unified
School 	District 	(District) 	has 	violated, 	misinterpreted, 	and
misapplied 	Education 	Code 	sections 	44903.7 	and 	45208 	resulting
in 	the 	granting 	of 	inappropriate 	seniority, 	salary 	and 	other·
benefits 	to 	employees 	transfered 	pursuant 	to 	the 	legislative
reorganization 	of 	special 	education 	programs 	under 	Chapter 	797
of 	the 	Statutes 	of 	1980. 	This 	conduct 	is 	alleged 	to 	violate
sections 	3543.5 (a), 	(b), 	(c) 	and 	(d) 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA).
My 	investigation 	has 	revealed 	the 	following. 	In 	1981, 	pursuant
to 	Chapter 	797 	of 	the 	Statutes 	of 	1980, 	eighteen 	special
education 	teachers 	who 	had 	been 	employees 	of 	Los 	Angeles 	County
became 	employees 	of 	the 	District. 	In 	April 	1982 	the 	Teachers
Association 	of 	Long 	Beach 	(Association) 	demanded 	the 	District
apply 	Education 	Code 	section 	44903.71 	to 	these 	teachers 	and
the 	District 	refused. 	The 	Association 	does 	not 	allege 	that 	the
District's 	conduct 	was 	motivated 	by 	employee 	union 	activity.
1Education 	Code 	section 	44903.7 	provides 	certain 	rights
to 	a 	certificated 	employee 	who 	is 	performing 	service 	for 	one
employer 	and 	is 	terminated, 	reassigned, 	transfered, 	or 	is 	made
an 	employee 	of 	another 	employer 	because 	of 	the 	reorganization
of 	special 	education 	programs 	pursuant 	to 	Chapter 	797 	of 	the
Statutes 	of 	1980.

Michael White, 	Esq.
October 	19, 	1982
Page 	2
On. 	August 	10, 	1982 	the 	Association 	filed 	a 	Petition 	for 	Writ 	of
Mandate 	in 	the 	Los 	Angeles 	County 	Superior 	Court 	alleging
violations 	of 	Education 	Code 	sections 	44903.7 	and 	45028. 	The
court 	denied 	the 	Petition 	on 	September 	2, 	1982. 	The 	instant
unfair 	practice 	charge 	was 	filed 	on 	September 	13, 	1982.
Based 	on 	the 	facts 	above, 	the 	charge 	does 	not 	state 	a 	prima
facie 	violation 	of 	the 	EERA. 	The 	substance 	of 	the 	charge 	is
that 	the 	District 	refuses 	to 	comply 	with 	Education 	Code
sections 	44903. 7 	and 	45208. 	As 	explained 	below, 	such 	refusal,
without 	more, 	does 	not 	violate 	the 	EERA.
,
First, 	you 	have 	alleged 	that 	the 	Respondent's 	conduct 	has
violated 	EERA 	section 	3543.S(a). 	Violation 	of 	that 	section
requires 	allegations 	that: 	(1) 	an 	employee 	has 	exercised
rights 	under 	the 	EERA; 	(2) 	the 	employer 	has 	imposed 	or
threatened 	to 	impose 	reprisals, 	discriminated 	or 	threatened 	to
discriminate, 	or 	otherwise 	interfered 	with, 	restrained, 	or
coerced 	the 	employee 	because 	of 	the 	exercise 	of 	rights
. gu.aranteed 	by 	the 	EERA. 	Carlsbad 	Unified 	School 	District
(1/30/79) 	PERB 	Decision 	No. 	89; 	Novato 	Unified 	School 	District
(4/30/82) 	PERB 	Decision No. 	210.
There 	are 	no 	facts 	alleged 	in 	the 	charge, 	nor 	were 	any 	facts
discovered 	during 	the 	investigation, 	which 	indicate 	that 	the
District 	was 	acting 	because 	of 	the 	employees' 	exercise 	of
rights 	guaranteed 	by 	the 	EERA. 	Thus, 	the 	charge 	does 	not 	state
a 	prima 	facie 	violation 	of 	EERA 	section 	3543.S(a).
Second, 	to 	state 	a 	prima 	facie 	violation 	of 	EERA
section 	3543.S(b) 	requires 	a 	showing 	that 	the 	employer 	has
denied 	to 	an 	employee 	organization 	its 	rights 	guaranteed 	to 	it
under 	the 	EERA. 	There 	are 	no 	facts 	which 	demonstrate 	that 	the
District 	has 	denied 	the 	Association 	any 	rights 	guaranteed 	by
the 	EERA. 	Thus 	no 	prima 	facie 	violation 	of 	EERA 	section
3543.5 (b) 	is 	presented 	by 	this 	charge.
Third, 	in 	determining 	whether 	a 	party 	has 	violated
section 	3543.5(c) 	of 	EERA, 	the 	Public 	Employment 	Relations
Board 	(PERB) 	utilizes 	either 	the 	"per 	se" 	or 	the 	"totality of
the 	conduct" 	test, 	depending 	on 	the 	specific 	conduct 	involved
and 	the 	effect 	of 	such 	conduct 	on 	the 	negotiating 	process.
Stockton 	USD 	(11/3/80) 	PERB 	Decision No. 	143. 	There 	are 	no
facts 	alleged 	or 	discovered 	during 	the 	investigation 	which

Michael White, 	Esq.
October 	19, 	1982
Page 	3
indicate 	that 	the 	District 	has 	violated 	its 	duty 	to 	bargain 	in
good 	faith 	under 	either 	the 	"totality 	of 	conduct" 	or 	the 	"per
se" 	test. 	Thus, 	there 	is 	no 	prima 	facie 	violation 	of 	EERA
section 	3543.S(c).
Fourth, 	violation 	of 	section 	3543.S(d) 	requires 	a 	showing 	that
the 	employer 	has 	dominated 	or 	interfered 	with 	the 	formation 	or
administration 	of 	the 	employee 	organization, 	contributed
financial 	or 	other 	support 	to 	it, 	or 	encouraged 	employees 	to
join 	one 	organization 	in 	preference 	to 	another. 	There 	are 	no
allegations 	in 	the 	charge 	nor 	were 	facts 	discovered 	during 	the
investigation 	which 	demonstrate 	that 	the 	District 	has 	engaged
in 	such 	conduct. 	Thus, 	there 	is 	no 	prima 	facie 	violation of
EERA 	section 	3543.S(d).
·.
For 	these 	reasons, 	charge 	number 	LA-CE-1634, 	as 	presently
written, 	does 	not 	state 	a 	prima 	facie 	case. 	Indeed, 	going
beyond 	your 	allegations 	of 	violations 	of 	EERA 	sections
3543.S(a, 	(b), 	(c) 	and 	(d), 	I 	further 	conclude 	that 	the 	conduct
alleged 	in 	the 	charge 	also 	does 	not 	appear 	to 	violate 	any 	other
provision 	of 	the 	EERA. 	Rather, 	it 	merely 	involves 	allegations
that 	the 	District 	violated 	two 	sections 	of 	the 	Education 	Code.
PERB 	does 	not 	have 	jurisdiction 	to 	adjudicate 	such 	disputes,
the 	proper 	forum 	being 	the 	courts 	of 	this 	state.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulation
section 	32635 	(California Administrative 	Code, 	title 	8,
part 	III), 	you may 	appeal 	the 	refusal 	to 	issue 	a 	complaint
(dismissal) 	to 	the 	Board 	itself.
Right 	to 	Appeal
You 	may 	obtain 	a 	review 	of 	this 	dismissal 	of 	the 	charge 	by
filing 	an 	appeal 	to 	the 	Board 	itself 	within 	twenty 	(20)
calendar 	days 	after 	service 	of 	this 	dismissal
{section 	32635(a)}. 	To 	be 	timely 	filed, 	the 	original 	and 	five
(5) 	copies 	of 	such 	appeal 	must 	be 	actually 	received 	by 	the
Board 	itself 	before 	the 	close 	of 	business 	(5:00 	p.m.} 	on
November 	8, 	1982, 	or 	sent 	by 	telegraph 	or 	certified 	United
States 	mail 	postmarked 	not 	later 	than 	November 	8, 	1982
(section 	32135). 	The 	Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 	95814

Michael White, 	Esq.
October 	19, 	1982
Page 	4
If 	you 	file 	a 	timely 	appeal 	of 	the 	refusal 	to 	issue 	a
complaint, 	any 	other 	party 	may 	file 	with 	the 	Board 	an 	original
and 	five 	(5) 	copies 	of 	a 	statement 	in 	opposition 	within 	twenty
(20) 	calendar 	days 	following 	the 	date 	of 	service 	of 	the 	appeal
{section 	32635 (b)) •
Service
All 	documents 	authorized 	to 	be 	filed 	herein must 	also 	be
"served" 	upon 	all 	parties 	to 	the 	proceeding, 	and 	a 	"proof of
service" 	must 	accompany 	the 	document 	filed 	with 	the 	Board
itself 	(see 	section 	32140 	for 	the 	required 	contents 	and 	a
sample 	form). 	The 	document 	will 	be 	considered 	properly
"served" 	when 	personally 	delivered 	or 	deposited 	in 	the
first-class 	mail 	postage 	paid 	and 	properly 	addressed.
Extension 	of 	Time
A request 	for 	an 	extension 	of 	time 	in 	which 	to 	file 	a 	document
with 	the 	Board 	itself 	must 	be 	in 	writing 	and 	filed 	with 	the
Board 	at 	the 	previously 	noted 	address. 	A request 	for 	an
extension must 	be 	filed 	at 	least 	three 	(3) 	calendar 	days 	before
the 	expiration 	of 	the 	time 	required 	for 	filing 	the 	document.
'l'he 	request 	must 	indicate 	good 	cause 	for 	and, 	if 	known, 	the
position 	of 	each 	other 	party 	regarding 	the 	extension, 	and 	shall
be 	accompanied 	by 	proof 	of 	service 	of 	the 	request 	upon 	each
party 	(section 	32132).
Final 	Date
If 	no 	appeal 	is 	filed 	within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Very 	truly 	yours,
By Robert 	Thompson
Regional 	Attorney
DENNIS 	M. 	SULLIVAN
General 	Counsel
~