Oxnard Educators Association (Gorcey and Tripp) (PERB 0664E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JUDITH MAE 	GORCEY,
Charging 	Party,
v.
OXNARD 	EDUCATORS ASSOCIATION,
Respondent.
Case No. 	LA-CO-369
PERB Decision No. 	664
May 5, 	1988
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)
JAN MARIE 	TRIPP,
Charging 	Party,
v.
OXNARD 	EDUCATORS 	ASSOCIATION,
Respondent.
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)
) 	Case No. 	LA-CO-370
Appearances; 	Rosenmund 	& 	Rosenmund by Michael 	A. 	Morrow 	for 	Jan
Marie 	Tripp and Judith Mae 	Gorcey; 	Robert 	E. 	Lindquist,
Attorney, 	for Oxnard 	Educators Association, 	CTA.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	Jan Marie 	Tripp and 	Judith Mae 	Gorcey
(hereafter 	Charging Parties) 	appeal 	the partial 	dismissals 	of
the 	first 	amended 	unfair 	labor 	practice 	charges 	filed 	against
the 	Oxnard 	Education Association 	(hereafter 	Respondent 	or
1	Association). l
1Oxnard 	Educators Association 	(Tripp) 	LA-CO-370, 	and
Oxnard Educators Association 	(Gorcey), 	LA-CO-369, 	have been
consolidated by 	the 	Board 	for 	this 	decision.
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Charging 	Parties 	filed 	individual 	charges 	with 	the 	Public
Employment 	Relations 	Board 	(PERB or Board) 	on May 23, 	1986,
alleging 	that 	Respondent 	failed 	to bargain 	in good 	faith, 	as
required by 	section 	3543.6(c) 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA),2 by bargaining 	for 	a 	salary 	schedule
3	outside the scope of Government Code section 3543.2(d).3	
w
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein 	are 	to 	the 	Government 	Code. 	Government 	Code 	section
3543.6(c) 	provides as follows:
It 	shall be 	unlawful 	for 	an 	employee
organization 	to:
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in
good 	faith 	with 	a public 	school 	employer 	of
any of 	the 	employees 	of which 	it 	is 	the
exclusive 	representative.
3Government 	Code 	section 	3543.2 	states 	in pertinent part:
(d) 	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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The 	first amended charges, 	filed on July 10, 	1986, 	further
alleged 	that 	Respondent 	breached 	its 	duty of 	fair
representation, 	pursuant 	to Government 	Code 	section 	3544.94
by 	negotiating 	a 	collective 	bargaining 	agreement 	containing 	a
salary 	schedule 	that 	did 	not 	comply with 	Education 	Code 	section
45028.
Charging 	Parties 	are 	certificated 	employees 	of 	the 	Oxnard
School 	District 	(District) 	and members 	of 	the Association.
Through 	the 	1983-84 	school year, 	the 	District used a 	12-step
certificated 	salary 	schedule 	which 	classified 	teachers 	on 	the
basis 	of 	uniform 	allowance 	for 	years 	of 	training 	and years 	of
experience 	consistent 	with 	Education 	Code 	section 	45028. 5
4Government 	Code 	section 	3544.9 	states:
The 	employee 	organization 	recognized or
certified 	as 	the 	exclusive 	representative
for 	the 	purpose 	of 	meeting 	and 	negotiating
shall 	fairly 	represent 	each 	and 	every
employee 	in 	the appropriate 	unit.
5Education 	Code 	section 45028 	states 	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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Each 	step 	directly 	corresponded 	to 	the 	number 	of
District-accepted 	years 	of 	teaching 	experience.
For 	the 	1984-85 	school year, 	the 	District 	and 	the
Association 	negotiated 	a 	10-step 	salary 	schedule 	which
consolidated 	the 	lowest 	three 	salary 	steps 	into 	a 	single 	step.
Thus, 	all teachers with one, 	two or three years' 	experience
were placed 	on 	step one 	and paid 	for 	three years' 	experience.
Teachers 	with 	four years' 	experience were placed on step 	two,
those with 	five years' 	experience on step three, 	etc.
After 	ratification of 	the 	10-step salary schedule, 	unit
employees became 	aware 	that 	new 	teachers 	hired 	into 	the
District 	were being 	placed 	at 	the 	salary 	step 	corresponding 	to
their 	actual 	years 	of 	experience 	as 	if 	the 	12-step salary
schedule were 	still 	in place. 	For 	example, 	new hires 	with
three 	years 	of 	experience 	were being placed 	on 	the 	new 	salary
schedule 	at 	step 	three while 	incumbent 	employees 	with 	three
years 	of 	District 	experience were 	at 	salary 	step one. 	In
response 	to 	complaints by 	incumbent 	employees, 	the Association
and 	District 	negotiated 	a 	new 	salary 	schedule 	for 	1985-86
providing 	for 	a 	reinstatement 	of 	the 	12-step 	salary 	schedule
and 	an 	across-the-board pay 	increase 	of 	4.2 	percent.
This 	newest 	salary schedule 	further 	provided 	that 	incumbent
teachers 	(i.e., 	those not newly hired 	in 1984-85) 	on steps 	one
through 	five 	and 	step 	ten were 	advanced 	three 	steps 	retroactive
to 	September 	1985, 	which 	translates 	into a 	12.6-percent pay
increase. 	Incumbent 	teachers 	on steps 	six 	through nine 	and 	all
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newly hired 	teachers 	received 	a 	single 	step 	increase 	and 	a 	4.2
percent 	pay 	raise. 	Incumbent 	teachers 	on 	steps 	six 	through
nine 	were 	scheduled 	to be 	advanced 	two 	additional 	steps
effective 	the 	1986-87 	school 	year; 	however 	the 	advancement was
not 	retroactive.
Charging 	Party 	Judith 	Mae 	Gorcey 	was 	personally 	affected by
the 	salary schedules 	as 	follows: 	In 	1983-84 	she was on step
nine with nine years' 	experience; 	in 1984-85 	she was on step
eight with 	ten years' 	experience; 	and 	in 1985-86 she was on
step nine with 	eleven years' 	experience. 	Gorcey alleges 	she
lost 	$2,685.00 	in 	compensation because 	she 	received 	a 	one-step
rather 	than 	a 	three-step 	increase.
Charging 	Party 	Jan Marie 	Tripp was 	personally 	affected by
the 	salary 	schedules 	as 	follows: 	In 	1983-84 	she was 	on step
six with six years' 	experience; 	in 1984-85 	she was on step five
with 	seven years' 	experience; 	and 	in 1985-86 	she was 	on step
six with eight years' 	experience. 	In 1985-86, 	other teachers
with 	less 	experience 	were 	currently on 	steps 	six 	and 	seven
receiving 	equal 	or 	greater pay 	than 	Charging 	Party. 	Tripp
alleges 	she 	lost 	$2,132.00 	in 	compensation because 	she 	received
a 	one-step 	rather 	than a 	three-step 	increase.
Charging 	Parties 	allege 	that 	the 	1985-86 	salary 	schedule 	is
illegal 	and 	violates 	Education 	Code 	section 	45028 by
classifying 	teachers 	for 	salary purposes 	on 	a basis 	other 	than
years 	of 	training and years of 	experience. 	The 	regional
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attorney 	concluded 	that 	PERB has 	jurisdiction 	to 	decide 	the
instant 	dispute 	insofar 	as 	it 	relates 	to violations 	of 	the
Educational 	Employment 	Relations 	Act but 	does 	not have
jurisdiction 	to 	remedy 	Education Code 	violations. 	The 	regional
attorney held 	that 	the 	charge 	did 	not 	ask 	PERB 	to 	remedy 	an
Education 	Code 	violation 	and 	accordingly 	only 	addressed 	the
unfair 	labor 	practice 	charges.
Based 	upon her 	conclusion 	that 	the 	negotiations 	regarding
salary 	schedules 	between 	the Association 	and 	the 	District 	fell
within 	the 	scope 	of 	bargaining 	as 	determined by 	Government 	Code
section 3543.2(d), 	the Regional Attorney dismissed the
3543.6(c) 	and 	3544.9 allegations. 	Section 3543.2(d) 	provides
an 	exception 	to 	Education 	Code 	section 	45028 when 	negotiations
are based 	on criteria 	other 	than years 	of 	training and years 	of
experience. 	She 	further 	concluded 	that 	Charging 	Parties 	failed
to allege 	sufficient 	facts 	in support 	of 	the 	3543.6(c) 	and
3544.9 	allegations 	to constitute a prima 	facie 	case.
On 	appeal, 	Charging 	Parties 	reassert 	their 	contention 	that
the 	1985-86 	salary 	schedule 	agreed 	to by 	the 	District 	and
Respondent 	violates 	Education Code 	section 	45028. 	They 	further
contend 	that 	section 	3543.2(d) 	does 	not 	allow unrestricted
negotiations 	in 	violation 	of 	the 	uniformity 	requirement
mandated by 	section 	45028. 	Charging 	Parties believe 	that 	a
complaint 	should 	issue 	for: 	1) 	failure 	to bargain 	in good
faith 	(3543.6(c)) 	and 	2) 	breach of 	the duty of 	fair
representation (3544.9).
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In opposition to 	the appeal, 	Respondent 	argues 	that PERB
lacks 	jurisdiction over 	the 	subject matter 	of 	the 	charge, 	which
specifically 	alleges 	a violation of 	the 	Education 	Code.
Respondent 	agrees 	with 	the 	regional 	attorney's 	conclusion 	that
Charging 	Parties 	have 	failed 	to 	set 	forth 	facts 	sufficient 	to
state 	a prima 	facie 	case with 	regard 	to 	the 	alleged 	violations
of 	sections 	3543.6(c) 	and 3544.9, 	respectively.
DISCUSSION
This 	case 	raises 	three 	separate 	issues before 	the 	Board.
Charging 	Parties 	have 	alleged 	two 	violations 	of 	EERA and 	a
violation of 	the 	Education 	Code.
A. 	Jurisdiction
The 	regional 	attorney 	correctly 	found 	that 	PERB 	does 	not
have 	jurisdiction 	to 	enforce 	contracts between parties 	or 	to
enforce 	the 	Education Code. 	Government 	Code 	section 3541.5(b);
California 	School 	Employees Association 	v. 	Azusa 	Unified 	School
District 	(1984) 	152 Cal.App.3d 580; 	199 Cal.Rptr. 	635;
California 	School 	Employees Association 	v. 	Travis 	Unified
School District 	(1984) 	156 Cal.App.3d 242, 	202 Cal.Rptr. 	699.
Where 	only 	a 	violation of 	a mandatory 	Education 	Code 	provision
is 	alleged, 	the normal 	jurisdiction is 	in the trial 	court.
Wygant 	v. 	Victor 	Valley 	Joint 	Union High 	School 	District 	(1985)
168 Cal.App.3d 319; 	214 Cal.Rptr. 	205; 	Marshall v. 	Russo 87
Daily Journal 	D.A.R. 	10094.
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Contrary, 	however 	to the 	regional 	attorney's 	finding 	that
this 	case 	does 	not 	ask PERB 	to 	remedy 	an 	Education Code
violation, 	we 	find 	that 	Charging 	Parties 	have 	alleged 	that 	the
salary 	schedule 	violates 	Education 	Code 	section 	45028.
Charging 	Parties 	seek 	immediate 	reclassification 	and
retroactive 	payment 	of 	all 	teachers 	in 	accordance 	with 	the
uniformity 	requirement 	of 	section 	45028. 	As 	this 	Board has 	no
jurisdiction 	to 	remedy a violation of 	the 	Education 	Code, 	to
the 	extent 	that 	the 	charge 	seeks 	such 	a 	remedy 	this 	is 	a matter
to be 	resolved by 	the 	courts. 	Travis 	Unified 	School 	District,
supra.
B. 	Good 	Faith 	Negotiations
We 	agree 	with 	the 	Board 	agent's 	dismissal 	of 	the 	3543.6(c)
allegation. 	We disagree, 	however, 	with her 	reasoning. 	The
Board 	agent 	dismissed 	the 	allegation 	after 	independently
determining 	that 	the 	salary 	schedule 	as 	agreed 	to by 	the
District 	and 	the Association, 	was 	negotiable pursuant 	to
Government 	Code 	section 3543.2(d), 	citing Healdsburg Union High
School 	District 	(1984) 	PERB Decision No. 	375.
We 	dismiss 	the 	3543.6(c) 	allegation on 	the 	grounds 	that
Charging 	Parties 	lack 	standing 	to bring 	charges 	against 	the
Association 	for 	failure 	to negotiate 	with 	the 	District.
Berkeley Federation of Teachers, 	Local 	1078, 	AFL-CIO 	(1988)
PERB Decision No. 	658.
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The purpose 	of 	this 	agency 	is 	to 	insure 	the 	statutory
rights 	of 	the parties, 	so that 	the 	employer 	and 	the exclusive
representative 	may meet 	and 	negotiate 	on 	terms 	and 	conditions
of 	employment 	as 	defined 	in EERA. 	The 	Board has 	recognized
that 	the 	exclusivity of 	the 	chosen 	employee 	organization 	in
representing unit 	employees 	is 	crucial 	to 	its 	ability 	to
negotiate 	effectively and 	to 	stable 	employment 	relations
generally. 	Hanford 	Joint 	Union 	High 	School 	District 	(1978)
PERB 	Decision No. 	58. 	While Hanford 	is 	factually
distinguishable 	in 	that 	it 	involves 	a nonexclusive
representative 	as 	opposed 	to an 	individual 	unit 	employee, 	the
harm sought 	to be prevented 	is 	the 	same, 	to wit: 	to 	insure
that 	the 	role 	of 	the 	exclusive 	representative 	in 	representing
unit 	employees 	in negotiations 	of 	terms 	and 	conditions 	of
employment 	with 	the 	employer 	is 	not 	undermined.
We 	note 	that 	Charging 	Parties 	in 	this 	case 	are 	not
participants 	to 	the 	negotiations 	at 	issue. 	A charge 	of 	a
refusal by the 	exclusive 	representative 	to bargain 	in good
faith 	must be brought by 	the 	employer, 	and 	cannot be brought by
an 	individual 	employee 	since 	the Association's 	duty 	to bargain
is 	owed to the 	employer, 	not 	to 	the 	individual unit employee.
Charging 	Parties, 	however, 	are not without protection under 	the
EERA. 	The 	Association has 	the 	duty 	to 	fairly 	represent 	the
interests 	of 	the 	Charging 	Parties 	in bargaining with 	the
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District. 	Indeed, 	the 	Charging 	Parties 	assert 	that 	the
Association breached 	its 	duty 	to bargain 	in 	good 	faith 	as 	a
separate 	allegation 	to 	the 	instant 	charge.
C. 	Duty 	of 	Fair 	Representation
We 	disagree 	with 	the 	Board 	agent's 	dismissal 	of 	the 	3544.9
allegation 	for 	failure 	to 	state a prima 	facie 	case, 	based on
her 	conclusion 	that 	the 	salary 	schedule 	was 	negotiated pursuant
to Government 	Code section 3543.2(d).
The duty of 	fair 	representation 	is 	violated when 	an
exclusive 	representative 	fails 	to 	fairly 	and 	impartially
represent 	all 	employees 	in 	the 	unit 	and 	engages 	in conduct 	that
is 	arbitrary, 	discriminatory or 	in bad 	faith. 	Rocklin Teachers
Professional Association 	(1980) 	PERB Decision No. 	124. 	This
standard 	extends 	to 	an exclusive 	representative's 	actions 	in
contract 	negotiations. 	Mount 	Diablo 	Education Association
(1984) 	PERB Decision No. 	422; 	Redlands Teachers Association
(1978) 	PERB Decision No. 	72. 	In deciding whether a charge
states 	a prima 	facie 	case, 	from which a 	complaint 	shall 	issue,
we 	deem 	that 	"the 	essential 	facts 	alleged 	in 	a 	charge 	are
true." 	San Juan Unified 	School 	District 	(1977) 	PERB 	Decision
No. 	12. 	Here, 	Charging Parties allege: 	1) 	that the
Association was 	advised 	of 	their 	concerns 	regarding 	the 	lack 	of
uniformity 	in 	the 	1985-1986 	salary 	schedule 	before 	negotiations
were 	completed; 	2) 	that 	those 	concerns 	were 	acknowledged 	in
bulletins 	which were 	distributed 	to unit 	members; 	3) 	that 	the
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Association 	provided 	no 	rationale 	for 	targeting 	steps 	6-9 	to
receive 	only a 	single 	step 	increase; 	4) 	that 	Charging 	Parties
requested 	that 	the Association 	correct 	the 	inequity 	in 	the
salary 	schedule based 	on 	lack 	of 	uniformity, 	and 	the 	requests
were 	refused; 	and, 	5) 	that 	the Association knowingly bargained
away 	Charging 	Parties 	rights 	under 	Education 	Code 	section
45028, 	thereby acting 	in bad 	faith 	toward Charging Parties.
In view of 	the 	alleged disparity 	in 	the 	salary 	schedule,
combined 	with 	Charging 	Parties 	requests 	of 	the 	Association 	for
uniformity, 	the 	allegations 	are 	sufficient 	to constitute 	a
prima 	facie 	case. 	The question of whether 	or 	not 	the
Association 	acted 	arbitrarily, 	discriminatorily or 	in bad 	faith
with 	regard 	to 	the 	targeting of certain 	steps, 	is 	a matter 	that
can be 	determined only after 	a hearing on 	the merits. 	This 	is
true 	regardless 	of 	whether 	the 	scope 	limitations 	provided by
section 	3543.2(d) 	were exceeded, 	for 	the 	resolution of 	that
issue 	represents 	no more 	than 	evidence 	of 	whether 	the 	duty of
fair 	representation 	was 	breached 	and 	would 	not be
determinative. 	Therefore, 	we 	reverse 	the 	Board agent's
dismissal 	of 	the 	3544.9 	allegation and 	remand 	to 	the 	General
Counsel 	for 	issuance 	of 	a complaint.
ORDER
Based on 	the 	foregoing, 	the 	Board AFFIRMS 	the 	regional
attorney's 	dismissal 	of 	that 	portion of 	the 	charge 	alleging
that 	the 	Association breached 	its 	duty 	to bargain 	in good
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faith. 	As 	to 	the 	claimed 	violation of 	the 	duty of 	fair
representation, 	we 	REMAND the 	case 	to 	the 	General 	Counsel 	for
6	issuance of a complaint pursuant 	to PERB Regulation 32640.66
Chairperson Hesse 	and Member 	Craib 	joined 	in 	this 	Decision.
6PERB 	Regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	part 	III, 	section 31001 et seq.
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