San Francisco Unified School District (PERB 0501E)

STATE 	OF CALIFORNIA
DECISION OF THE
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
DIANE BENNETT ET AL.,
Charging Parties,
v.
SAN FRANCISCO 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case Nos. 	SF-CE-897
through
SF-CE-913
PERB Decision No. 	501
April 17, 	1985
DIANE BENNETT ET AL.,
Charging Parties,
v.
SAN 	FRANCISCO 	CLASSROOM 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Respondent.
Case Nos. 	SF-CO-234
through
SF-CO-250
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 	come 	before 	the 	Public 	Employment 	Relations
Board 	(PERB or 	Board) 	based on appeals 	of dismissals 	of 	unfair
practice 	charges. 	Both sets of charges were 	filed on April 	17,
1984. 	Diane 	Bennett and 	16 	other 	individual 	certificated
employees 	(Charging Parties) 	filed 	the 	instant 	charges 	against
the 	San 	Francisco Unified 	School 	District 	(District) 	and
)
)
)
)
)
)
)
)
)
)
______________ )
)
)
)
)
)
)
)
)
)
)
)
______________ )

against 	the 	San 	Francisco Classroom 	Teachers 	Association,
CTA/NEA 	(CTA), 	claiming 	that 	the 	salary schedule agreed 	to by
the 	District 	and CTA had 	the 	effect 	of 	depriving 	the 	Charging
Parties 	of 	full 	credit 	for years 	of 	service. 	The 	charges 	allege
that 	the 	agreement 	conflicts 	with 	the provisions 	of 	Education
1
1Code section 45028. 	In 	the charges 	filed against CTA, 	the
Charging Parties 	also allege that, 	by this 	conduct, 	they were
deprived of 	their 	right 	to 	fair 	representation. 	For 	the
reasons 	outlined below, 	we affirm the dismissal of 	the charges.
FACTUAL 	SUMMARY
In September 	1983, 	the 	District 	and 	CTA negotiated 	an
agreement 	which 	established 	a 	salary 	schedule placing
individual 	teachers 	on 	the 	schedule based on years 	of
experience 	and academic 	attainment. 	Vertical 	steps 	within 	the
schedule 	correspond 	to years 	of 	experience. 	Horizontal 	classes
reflect 	academic attainment. 	As 	each 	additional 	year 	of
experience 	is 	acquired, 	a one-step advancement 	in salary is
1Section 	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.
N	2

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
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.
After 	the 	instant 	charges 	were 	filed, 	the regional 	attorney
advised 	the Charging Parties' 	attorney as 	follows:
The 	allegations 	do not 	specify when 	these
individuals 	were 	classified on 	the 	B-7 	or
B-8 	schedule, 	when 	the 	District and 	the
Association 	allegedly agreed 	to 	an 	improper
classification 	. . . .
In response, 	the Charging Parties 	indicated 	they were unaware
of 	the date 	on which 	they became 	entitled 	to move 	from B-7 	to
B-8.
In a letter dated May 31, 	1984, 	the 	San Francisco regional
attorney advised 	the 	Charging 	Parties 	that 	no complaint 	would
issue because 	the 	charges 	failed 	to allege 	facts 	sufficient 	to
state 	a prima 	facie 	violation of 	the 	Educational 	Employment
W	3

Relations Act 	(EERA).2 Specifically, 	he concluded that,
because 	the 	agreement 	containing 	the 	alleged 	unlawful 	provision
was 	concluded on September 	3, 	1983, 	the charges 	filed on
3	w	April 17, 	1984 were time-barred.3
DISCUSSION
In the 	instant appeals of 	the dismissals, 	the Charging
Parties 	contend 	that, 	although 	the agreement 	was 	reached on
September 	3, 	1983, 	it was not ratified by the District
governing board until November, 	and 	it was not published or
distributed 	to 	the 	employees 	until 	December. 	Charging Parties
assert 	that 	this 	lack 	of knowledge 	was 	not 	made 	known 	to 	the
regional 	attorney because, 	in his warning letter, 	he requested
only 	information 	about when 	the 	Charging 	Parties 	were
classified 	on 	the 	salary 	schedule 	and when 	the 	District 	and 	CTA
agreed 	to 	the 	improper 	contract provision. 	We 	find 	these
assertions 	wholly 	unpersuasive.
2 E E R A is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 	3541.5(a) 	precludes 	the 	Board 	from 	issuing a
complaint 	if the charge 	is 	". 	. 	. based upon an alleged unfair
practice 	occurring more 	than 	six 	months 	prior 	to 	the 	filing 	of
the 	charge; 	. . . "
3 In 	the regional attorney's 	dismissal 	letter, 	he 	indicates
that 	13 	of 	the 	teachers 	involved 	in 	the 	instant 	case have
initiated grievances 	against 	the District. 	His 	investigation
of these documents 	revealed that, 	as 	to these 13 	individuals,
the 	disputed 	salary placement 	occurred prior 	to 	the 	effective
date of 	the 	contract. 	Based on 	this 	uncontested 	factual
finding, 	the 	regional attorney 	found 	these 	13 	teachers 	to have
no claim against 	CTA as 	to 	their 	salary placement. 	We 	agree.
A4

As CTA noted 	in 	its 	response, 	the burden of alleging
sufficient 	facts 	rests on 	the Charging Parties. 	PERB
regulation 	32615(a)4 requires 	that 	the 	charge 	include 	a 	clear
and 	concise 	statement 	of 	the 	facts 	and 	conduct 	alleged 	to
constitute a prima 	facie unfair practice. 	Here, 	the 	charges
fail 	to allege 	that 	the 	complained-of 	conduct 	occurred within
the 	six-month 	statute of 	limitations period. 	The 	charges 	give
no dates 	indicating when 	the 	complained-of 	conduct 	occurred.
In each 	instance, 	the 	charges 	merely allege 	that 	the District
and 	CTA agreed 	to 	a 	contract 	provision 	whereby 	individual
teachers 	are not placed at 	the 	step at which 	the 	teachers 	feel
themselves 	to be 	entitled.
We 	find 	that 	Charging Parties' 	obligation 	to allege when
the 	complained-of 	conduct 	occurred 	springs 	not 	from 	the
regional 	attorney's 	warning 	letter 	but 	from EERA and 	the
Board's 	regulations. 	Even 	if 	the Charging Parties were
ignorant of 	Board rules, 	we 	find 	the regional attorney's
warning 	letter 	to be 	more 	than adequate 	for 	the purpose 	of
alerting 	the Charging Parties 	to 	their 	timeliness problem. 	He
asked 	for 	specific 	information 	about 	when 	the 	salary
classifications 	occurred 	and 	when 	the 	District 	and 	CTA
allegedly agreed 	to 	an 	improper 	classification. 	We 	find no
ambiguity 	in the 	language of his 	request. 	The 	charges 	alleged
4PERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31001 et seq.
un	
5

unlawful 	agreement on 	the 	salary schedule, 	and 	the 	regional
attorney asked when 	that 	agreement 	occurred. 	Member 	Jaeger
seems 	to 	suggest 	that 	the 	request 	for 	information was
inadequate because 	the 	regional 	attorney did not 	specifically
ask 	when 	Charging 	Parties 	learned 	of 	the 	newly-negotiated
schedule. 	We 	find shifting 	this 	obligation 	from the Charging
Parties 	to the Board agent 	to be 	improper. 	Indeed, 	we 	find 	it
most unpersuasive 	for Charging Parties' 	representative, 	hardly
an uninitiated novice 	in 	the 	labor 	law 	field, 	to now assert
their 	ignorance of 	the material 	the 	Board agent 	sought. 	For
this 	reason, 	the 	information appearing 	for 	the 	first 	time 	in
the 	instant 	appeal will 	not be heard 	to cure 	the 	earlier
deficiency.
ORDER
Based on the 	foregoing, 	we hereby DISMISS Case Nos.
SF-CE-897 	through 	SF-CE-913 	and 	SF-CO-234 	through 	SF-CO-250.
Member 	Burt 	joined 	in 	this 	Decision. 	Member 	Jaeger's
concurrence begins on p. 	7.
6

Jaeger, 	Member, 	concurring: 	On review of the procedural
record 	in 	this 	case, 	I 	find no 	indication 	that the 	regional
attorney 	alerted Charging Parties 	that he 	considered 	the 	original
charge 	untimely. 	He 	did pose 	a 	series of 	factual questions 	to
Charging Parties 	in his warning 	letter of May 	3. 	Included among
these were questions 	as 	to 	the 	date 	the 	employees were 	denied
advancement on 	the 	salary 	schedule 	and 	the 	date 	the Association
reached agreement with 	the 	District on 	terms 	of 	that 	schedule.
However, 	the Association points 	out on appeal 	that 	the 	charge
was 	in 	fact 	timely because 	the 	Charging Parties 	did not 	learn of
the newly-negotiated salary 	schedule 	until 	December 1984, 	well
within six months of the April 	17, 	1985 	filing date. 	Thus, 	had
Charging 	Parties 	supplied 	all 	the 	information 	requested by 	the
regional 	attorney, 	the 	timeliness of 	this 	charge would still not
have been established. 	In his 	dismissal 	letter, 	the 	regional
attorney himself points out—belatedly, 	and thus, 	I 	feel,
unfairly—that "the charge must necessarily allege 	. 	. 	. 	the date
on which 	charging party became aware 	of 	[the 	contract's] 	contents."
Because 	the 	regional 	attorney never 	requested that date, 	or warned
that the charge 	as stated was 	deficient 	for timeliness 	reasons, 	I
find that 	the 	regional 	attorney's 	dismissal of 	the 	charges 	on
timeliness 	grounds 	constitutes 	error.
I 	join the majority in affirming the dismissal, 	however, 	for
the 	alternate 	reasons 	identified by 	the 	regional 	attorney 	in his
letter of May 	3. 	There, 	the 	regional 	attorney clearly 	stated his
position 	that on 	substantive 	grounds 	the 	facts 	alleged 	failed 	to
state 	a prima 	facie violation of the EERA. 	In this 	regard, 	I 	find
7

no error 	in 	the 	regional 	attorney's position. 	I 	find 	further,
on review of Charging Parties' 	amended charge, 	that the
substantive 	deficiencies 	present 	in 	the 	original 	charge 	are 	not
cured. 	The 	charge, 	therefore, 	could properly have been dismissed
on this basis 	alone.
88