San Francisco Unified School District (PERB 0502E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
DIANE BENNETT ET AL.,
Charging Parties,
v.
SAN 	FRANCISCO 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
DIANE BENNETT ET AL.,
Charging Parties,
v.
SAN FRANCISCO 	CLASSROOM 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Respondent.
) 	Case No. 	SF-CE-926
PERB Decision No. 	502
April 	17, 	1985
Case No. 	SF-CO-254
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Appearances; 	Van Bourg, 	Allen, 	Weinberg & 	Roger by Stewart
Weinberg 	for Diane Bennett et al.; 	Kirsten L. 	Zerger, 	Attorney
for 	San Francisco Classroom Teachers Association, 	CTA/NEA.
Before Jaeger, 	Morgenstern and Burt, 	Members.
DECISION
MORGENSTERN, 	Member: 	The above-captioned cases have been
consolidated 	and 	are 	before 	the 	Public 	Employment 	Relations
Board 	(PERB) 	on appeals of dismissals 	of 	unfair practice
charges. 	The underlying charges, 	filed on June 8, 	1984, 	by
Diane 	Bennett 	and 	other 	individual 	employees 	(Charging 	Parties)
allege 	that 	the 	San Francisco Unified 	School 	District 	(District)
and 	the 	San Francisco Classroom Teachers 	Association, 	CTA/NEA
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(CTA), 	violated the Educational Employment Relations Act
(EERA)l by adopting 	a 	contractual 	salary 	schedule provision
which allegedly contravenes 	Education Code 	section 45028. 	We
affirm the dismissal 	for 	the 	reason 	set 	forth below.
FACTUAL 	SUMMARY
The 	factual 	circumstances 	surrounding 	the 	instant 	charges
mirror 	those 	that 	formed 	the basis 	for 	the 	unfair practice
charges 	discussed 	in 	San Francisco Unified 	School 	District
(4/17/85) PERB Decision No. 	501.
In 	September 	1983, 	the District 	and CTA negotiated an
agreement 	which 	contained 	a 	salary 	schedule 	that 	compensates
teachers 	for 	years 	of 	experience 	and academic attainment.
Vertical 	steps 	correspond to years 	of 	experience, 	while
horizontal 	classes 	reflect 	academic 	achievement. 	As 	each
additional year 	of 	experience 	is 	acquired, 	a one-step
advancement 	in 	salary 	is 	made within each class 	up 	to 	the
maximum for 	that 	class. 	The maximum number of years 	of
experience varies between 	classes. 	When a 	teacher has 	advanced
to the highest 	step, 	additional years of experience are not
credited. 	The 	contract provision 	in dispute here, 	section
18.3.2, provides as follows:
In accordance with past practice, 	a member
of 	the bargaining 	unit 	who has 	completed
rating 	11 	or higher 	of 	column 	B-7 	and
1EERA 	is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references herein 	are
to the Government Code.
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becomes 	eligible 	for 	B-8 	shall 	be 	entitled
to placement at rating 	12 	of column B-8.
This 	provision 	limits 	a 	teacher 	who advances 	horizontally on 	the
salary schedule based on academic 	achievements 	to a 	one-step
increase 	for 	experience 	even 	though 	the 	teacher has had
additional 	years 	of 	experience not 	credited 	in 	the 	lower 	class
but which 	is 	credited 	in 	the new column.
The 	gravamen of 	the 	charges 	rests 	on 	the 	claim 	that 	this
provision 	conflicts 	with 	Education Code 	section 45028 because
that 	statute 	mandates 	uniform 	credit 	for 	past 	teaching
experience.222
The 	charges 	specifically allege 	that 	the 	designated
representatives 	of 	the 	District 	and 	of 	CTA reached 	agreement 	on
the provision on 	September 	3, 	1983. 	The assertion 	is also made
that 	the 	agreement 	was not 	ratified until 	November 	and was 	not
published 	and 	distributed 	until 	December 	1983.
On July 9, 1984, 	the 	San Francisco regional 	attorney warned
the Charging Parties 	that, 	based on the 	factual 	allegations 	and
2Section 45028 provides, 	in pertinent part:
Effective July 1, 	1970, 	each person employed
by a district 	in a position requiring
certification qualifications 	except 	a person
employed 	in 	a position 	requiring
administrative 	or 	supervisory 	credentials,
shall 	be 	classified on 	the 	salary 	schedule
on 	the basis 	of uniform allowance 	for 	years
of 	training and years 	of 	experience.
Employees 	shall 	not be placed 	in different
classifications on the schedule, 	nor paid
different 	salaries, 	solely on 	the basis 	of
the 	respective grade 	levels 	in which 	such
employees 	serve.
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the 	legal 	theories 	advanced, 	the 	charges 	would be dismissed
unless amended or withdrawn. 	In his communication, 	the
regional 	attorney indicated 	that, 	as written, 	he 	considered 	the
charges 	to be 	untimely because 	they 	failed 	to allege 	when 	the
parties 	knew of 	the 	adoption of 	section 	18.3.2 	of 	the 	contract
or 	became 	aware 	of 	its 	contents.
2 3 He 	also examined 	the
propriety of 	the 	contract provision 	in 	light 	of 	the 	Education
Code's proscriptions 	and 	the 	July 	1983 	amendments 	to EERA,
which added section 3543.2(d). 44	4
On July 24, 	1984, 	Charging Parties' 	attorney responded to
the warning letter. 	He 	indicated that, 	in his view, 	the amended
EERA provision does 	not 	apply to the 	instant 	case because 	the
agreement 	reached by 	the 	exclusive 	representative 	and 	the
3Pursuant 	to his 	investigation of 	the 	charges, 	the
regional 	attorney discovered 	that 	13 	of 	the Charging Parties
notified 	the 	District 	of 	their 	eligibility 	for 	placement 	on 	the
next column under prior 	contracts. 	Thus, 	the alleged 	failure
to 	credit 	these 	13 	individuals 	for 	total years 	of 	experience
occurred prior 	to 	the 	adoption of 	section 	18.3.2 	and bears 	no
relationship 	to 	the 	negotiation of 	the 	1983-86 	contract.
4Section 3543.2(d) provides:
Notwithstanding 	Section 45028 	of 	the
Education Code, 	the public school 	employer
and 	the 	exclusive 	representative 	shall, 	upon
the request of either party, 	meet and
negotiate 	regarding 	the payment 	of additional
compensation based 	upon 	criteria 	other 	than
years 	of 	training and years 	of 	experience.
If 	the public 	school 	employer 	and 	the
exclusive 	representative 	do 	not 	reach 	mutual
agreement, 	then the provisions of 	Section
45028 	of 	the 	Education Code 	shall 	apply.
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employer 	did 	not 	compensate 	teachers 	based on 	criteria 	other
than 	training 	and 	experience.
As 	to the 	statute of limitations 	issue, 	he 	stated that:
It has been 	clearly alleged 	that 	a 	copy of
the 	contract 	and 	its 	contents 	did not become
known 	to 	the 	Charging Parties 	until 	December
1983. 	Therefore, 	a filing on June 8, 	1984
is within 	the 	statute of 	limitations.
On July 27, 	1984, 	the regional attorney dismissed both
unfair 	practice 	charges 	"for 	the 	reasons 	stated 	in 	the July 9,
1984 	warning 	letter."
DISCUSSION
In the appeals 	submitted on August 	16, 	1984, 	the Charging
Parties 	again 	assert 	that 	the 	charges 	were 	timely 	filed because:
The 	contract 	was 	not published 	and 	circulated
until December of 	1983, 	less 	than six months
prior 	to the 	filing of 	the 	charge 	on June 8,
1984.
Although 	the 	appeals 	also 	take 	issue 	with 	the regional
attorney's 	contention 	that 	the 	negotiated 	salary provision 	may
be 	lawful by virtue of section 3543.2(d), 	we need not reach
that 	issue 	today.
The 	instant 	unfair practice 	charges 	were 	filed 	on June 	8,
1984. 	Thus, 	to satisfy the 	six-month 	statute of limitations
requirement, 	the 	complained-of 	conduct 	must have 	occurred on or
after 	December 8, 	1983. 	The 	instant charges allege that, 	while
the parties 	reached 	agreement 	on 	the 	salary 	schedule 	on
September 	3, 	1983, 	"the agreement was not ratified until
November 	1983, 	and was 	not published and distributed until
December 1984 	. 	. 	. 	." 	On its 	face, 	then, 	the charges do not
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allege 	conduct 	that 	occurred within 	the 	statutory period, 	on or
after 	December 8, 	1983. 	For 	that reason, 	the regional attorney
aptly advised 	in his 	warning 	letter 	that 	the 	charge 	was
insufficient 	to state 	a prima 	facie 	case because 	it 	did not
allege 	the 	date on which Charging Parties 	first knew or 	could
have known of 	the adoption of 	section 18.3.2. 	Notwithstanding
the warning letter, 	however, 	the Charging Parties' 	response
again rested on 	their 	claim that 	"a 	copy of 	the 	contract 	and
its 	contents 	did not become 	known 	to 	the 	Charging Parties 	until
December 	of 1983."
Given 	that 	the 	charging party bears 	the burden of 	alleging
a 	clear 	and 	concise 	statement 	of 	facts 	and conduct, 	the 	instant
charges 	are marred by the 	fact 	that 	knowledge of 	the 	contract
clause 	"in 	December" 	does 	not 	necessarily allege 	conduct 	with
the 	statutory period. 	As 	CTA stated 	in 	its 	response 	to 	the
appeal:
. 	. 	. 	Charging Parties continued to allege
only 	the 	general 	allegation 	that 	they did not
know of 	the 	contents 	of 	Section 	18.3.2 	until
December, 	1983. 	If this means December 	1-7,
1983, 	then the charge clearly falls outside
the 	statute of limitations. 	If 	it means
December 8-31, 	1983, 	it 	falls within the
statute.
ORDER
For 	the 	foregoing reason, 	we hereby DISMISS the 	charges 	in
Case Nos. 	SF-CE-929 and SF-CO-254.
Member 	Burt 	joined 	in 	this 	Decision. 	Member Jaeger's
concurrence 	is on p. 	7.
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Jaeger, 	Member, 	concurring: 	I 	join the majority in
affirming 	the dismissal 	of 	the 	instant charge, 	but 	for the 	reasons
stated 	in my 	separate 	concurrence 	in 	San Francisco 	Unified 	School
District 	(1985) 	PERB Decision No. 	501, 	issued jointly herewith
today.
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