Buena Park School District (PERB 1027E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BUENA PARK TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
BUENA PARK SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3310
PERB Decision No. 	1027
November 	24, 	1993
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Appearances: 	California Teachers Association by Charles 	R.
Gustafson, 	Attorney, 	for Buena Park Teachers Association,
CTA/NEA; 	Atkinson, 	Andelson, 	Loya, 	Ruud & Romo by James C. 	Romo,
Attorney, 	for Buena Park School District.
Before Blair, 	Chair, 	Garcia and Carlyle, 	Members.
DECISION
GARCIA, 	Member: 	This 	is an appeal 	from a Public Employment
Relations Board 	(Board) 	agent's dismissal 	(attached) 	of Buena
Park Teachers Association, 	CTA/NEA's 	(Association) 	charge
alleging 	that 	the Buena 	Park School 	District 	(District) 	insisted
to 	impasse on an 	illegal 	contract provision; 	conduct 	alleged to
violate 	the 	Educational 	Employment 	Relations Act 	(EERA) 	section
3543.5 (a), 	(b) 	and 	(c).1 Review of 	the entire file and case law
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.. 	EERA section 3543.5 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(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
_______ )

leads 	us 	to 	conclude 	that 	the Association 	failed 	to 	establish a
prima 	facie 	case. 	Therefore, 	we affirm the Board agent's
dismissal.
FACTS
In essence, 	the 	charge 	is made that a negotiated contract
provision has 	become 	illegal 	because 	an appellate 	court 	decision
California Teachers Assn. 	v. 	Governing Board of 	Lancaster School
District 	(1991) 	229 	Cal.App.3d 695 	[280 Cal.Rptr. 	286]
(Lancaster) 	could be 	interpreted to mean that 	Education Code
section 450282 mandates 	that years 	of 	training and years 	of
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(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.
2Education Code 	section 45028 	states:
(a) 	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.
In no case 	shall 	the governing board of 	a 	school
district 	draw orders 	for 	the 	salary of 	any 	teacher 	in
violation of 	this 	section, 	nor shall 	any superintendent
draw any 	requisition 	for 	the 	salary 	of 	any teacher 	in
violation 	thereof.
22

experience 	are 	to be 	the 	sole 	and unconditioned 	factors
considered when placing 	teachers 	on a 	salary 	scale 	and moving
them on the 	scale. 	While 	the District 	gave 	teachers 	salary scale
credit 	for years 	of prior experience, 	the agreement also
contained a provision which 	gave 	anniversary 	increments 	for years
of 	service 	in the District 	and the 	"outside" 	service was 	not
counted 	toward 	the 	anniversary 	increments. 	The Association
alleges 	that 	denial 	of 	credit 	is 	an 	illegal 	application of
Education Code 	section 45028 	under Lancaster, 	and that 	insistence
on the provision to 	impasse 	is 	therefore unlawful.
DISCUSSION
The 	Board agent 	dismissed 	the 	charge 	because 	EERA section
3543.2(d)3 allows 	Education Code 	section 45028 	to be overridden
This 	section shall 	not 	apply to 	teachers 	of
special 	day and evening 	classes 	in elementary 	schools,
teachers 	of 	special 	classes 	for elementary pupils,
teachers 	of 	special 	day and evening high school 	classes
and 	substitute 	teachers.
(b) 	It 	is not a violation of 	the uniformity
requirement 	of 	this 	section for a district, 	with the
agreement 	of 	the 	exclusive 	representative 	of
certificated employees, 	if any, 	to grant any employee
hired 	after 	a 	locally 	specified 	date 	differential
credit 	for prior years 	of 	experience 	or prior units 	of
credit 	for purposes 	of 	initial 	placement 	on the
district's 	salary schedule.
This 	subdivision 	is 	declaratory of 	existing 	law.
3Section 3543.2(d) 	states:
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
W3

by agreement 	in 	cases 	of 	additional 	compensation 	(in 	the 	form of
anniversary 	increments) 	and because Mayer v. 	Board of 	Trustees
-
(1980) 	106 Cal.App.3d 476 	[165 Cal.Rptr. 	655] 	(Mayer) 	permits
reasonable qualifications, 	limits 	or modification of 	Education
Code 	section 	45028 	factors 	when uniformly applied 	to all
teachers.
Section 	3543.2(d) 	makes 	a specific 	reference 	to Education
Code 	section 45028 	and clearly permits 	override. 	Education Code
section 45028 	came 	into being 	in 	1969 	and EERA section 3543.2(d)
in 1983. 	Since 	it 	is 	reasonable 	to 	interpret 	the anniversary
increments 	to 	represent 	additional 	compensation 	for 	service 	to
the 	District 	and 	the 	Legislature 	clearly 	intended 	to 	authorize
the parties 	to override 	Education Code 	section 45028 	in such
cases 	there 	is 	no 	illegal 	waiver of 	the benefits 	of 	Education
Code 	section 45028.
Both of 	the previously 	cited appellate 	decisions 	rely on a
California Supreme Court decision, 	Palos Verdes 	Faculty Assn. 	v.
Palos Verdes 	Peninsula Unified Sch. 	Dist. 	(1978) 	21 Cal.3d 650
[147 Cal.Rptr. 	359] 	(Palos Verdes) 	for support.
Therefore we must 	review and 	interpret 	the 	cited 	cases 	to
determine 	whether 	the Association has 	established an 	illegal
application of 	Education Code 	section 45028 	to 	sustain 	the
charge. 	The 	cited appellate 	cases move 	in opposite 	direction
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.
44

when they 	consider whether Education Code 	section 45028 	factors
of 	experience 	and 	training 	can be 	qualified 	or 	limited 	in
application. 	Lancaster leans 	toward the view that years 	of
training and years 	of 	experience, 	unmodified by limits,
qualifications or standards, 	are the sole determinants 	of
placement 	on a 	salary 	schedule. 	Mayer 	leans 	toward 	the view that
-
qualifications, 	including those 	that are 	subjective 	in nature,
can 	condition 	training or 	experience 	for placement 	on a 	salary
schedule. 	Palos Verdes makes 	it 	clear that years 	of 	training and
years 	of 	experience are 	the most 	important 	determinants 	of
placement 	on a 	salary 	schedule however, 	both may be 	limited and
qualified under 	standards 	that 	are 	uniformly applied when a
district 	gives 	credit 	for training 	or experience. 	Palos Verdes
recognizes 	Education Code 	section 45028 	was 	amended 	in 	1969 	to
move away 	from a 	subjective 	standard of 	"reasonableness" 	that
could be applied to 	individual 	teachers 	or groups 	of 	teachers.
This 	case 	adopted the view that 	teachers 	were 	to be 	classified by
years 	of 	training and/or years 	of 	experience as 	the basic
determinants 	of placement 	on a salary schedule. 	However, 	the
Supreme 	Court 	left 	room for district management 	to 	limit 	the
amount 	of 	credit 	given for training and experience 	and to adopt
standards 	of 	quality 	that 	training and experience must 	achieve 	to
qualify for credit. 	(Palos Verdes, 	p. 	661, 	fn. 	6.). 	District
management 	can qualify and/or 	limit 	credits 	so 	long as 	the
standards 	and 	limits 	that 	condition 	the 	credits 	are uniformly
applied to all 	teachers.
5

While 	the 	appellate 	decisions 	in 	the 	First 	and 	Fourth
Districts move 	in 	the 	opposite 	direction when 	interpreting 	the
Supreme 	Court 	decision 	in 	Palos Verdes 	we believe 	Lancaster
strays 	further 	off 	course 	and 	cannot 	be 	the basis 	for declaring
the District's 	application of 	Education Code 	section 	45028 	to be
illegal. 	Since 	the Association has 	failed to demonstrate a prima
facie 	case 	of 	insistence 	to 	impasse 	on an 	illegal 	contract
provision, 	the Board agent was 	correct 	in refusing 	to 	issue 	a
complaint. 	ORDER
Based upon our review of 	the 	statutes, 	pertinent 	case 	law
and the 	entire 	record 	in this 	case, 	the Board affirms DISMISSAL
of 	the 	charge 	filed by the 	Buena 	Park Teachers Association,
CTA/NEA against 	the 	Buena 	Park School 	District.
Chair, 	Blair and Member Carlyle 	joined in this Decision.
66

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
July 8, 	1993
Charles R. 	Gustafson, 	Esq.
California 	Teachers 	Association
P.O. 	Box 92888
Los Angeles, 	California 	90009
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair
Practice Charge No. 	LA-CE-3310, 	Buena Park Teachers
Association, 	CTA/NEA v. 	Buena Park School District
Dear Mr. 	Gustafson:
In the above-referenced charge, 	filed on May 18, 	1993, 	the Buena
Park Teachers Association, 	CTA/NEA 	(Association) 	alleges 	that 	the
Buena 	Park School 	District 	(District) 	insisted to 	impasse 	on an
illegal 	contract provision. 	This 	conduct 	is 	alleged to violate
Government Code sections 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA).
I 	indicated to you, 	in my attached letter dated June 	23, 	1993,
that 	the 	above-referenced 	charge 	did not 	state 	a prima 	facie
case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should amend 	the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state a prima 	facie 	case 	or withdrew it prior to July
7, 	1993, 	the charge would be dismissed.
On July 7, 	1993, 	you filed a First Amended Charge. 	The amended
charge 	contains no additional 	facts, 	but 	it 	cites 	the case of
California Teachers Assn, 	v. 	Governing Board 	(1991) 	229
Cal.App.3d 695, 	701 	[280 Cal.Rptr. 	286], 	for the proposition that
under 	Education 	Code 	section 	45028 	salary 	classification 	"must
proceed wholly 	on a uniform basis 	for years 	of 	training and
experience." 	In the same case, 	however, 	it 	is acknowledged that
under Government 	Code 	section 	3543.2(d) 	there may be 	"additional
compensation based upon criteria 	other 	than years 	of 	training and
years of 	experience." 	(Id. 	at 	705, 	emphasis 	in the original.)
In 	the present 	case, 	the 	anniversary 	increment provision provides
additional 	compensation 	(an 	"increment") 	on the basis 	of 	an event
(an 	"anniversary") 	that 	is not 	identical 	to years 	of 	"training"
or years 	of 	"experience." 	I 	have 	still 	found no authority 	that
directly 	supports 	the 	proposition 	that 	such an anniversary
increment 	provision 	is 	necessarily 	illegal 	and non-negotiable.

Warning 	Letter
LA-CE-3310
June 23, 	1993
Page 2
impasse on or about January 19, 	1993.2
Based on the 	facts 	stated above, 	the 	charge does 	not 	state a
prima facie violation of 	the EERA, 	for the 	reasons 	that 	follow.
Education Code 	section 45028 	provides 	in part 	that 	credentialed
school 	district 	employees 	"shall 	be 	classified on 	the 	salary
schedule 	on the basis 	of uniform allowance 	for years 	of 	training
and years 	of experience." 	Government 	Code 	section 3543.2(d) 	of
the EERA, 	however, 	provides as follows:
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.
The 	charge 	cites 	no authority 	for the proposition 	that 	an
anniversary 	increment 	provision 	is 	illegal 	and non-negotiable
under Education Code 	section 45028 	and Government 	Code 	section
3543.2(d), 	and I have found no such authority. 	On the 	contrary,
a 	Court 	of Appeal 	approved a 	salary 	scheme 	with an anniversary
increment 	feature 	in Mayer v. 	Board of Trustees 	(1980) 	106
- -	Cal.App.3d 476 	[165 Cal.Rptr. 	655], 	where one of the issues was
whether 	an 	employee 	could be 	denied 	an 	anniversary 	increment
because 	of unsatisfactory performance. 	The Association 	itself
apparently has 	not 	always 	believed 	that 	the 	anniversary 	increment
provision is 	illegal 	and non-negotiable, 	since 	it 	agreed to 	the
provision in the previous 	collective bargaining agreement. 	It
therefore 	cannot 	be 	said 	that 	the 	charge makes 	a prima 	facie
showing 	that 	the District's 	alleged 	insistence 	to 	impasse 	on 	the
anniversary 	increment 	provision violated 	the 	EERA.
For these reasons 	the charge, 	as presently written, 	does not
state a prima 	facie 	case. 	If 	there are any 	factual 	inaccuracies
in 	this 	letter 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend 	the 	charge. 	The
2Apparently neither party 	has 	requested an 	impasse
determination 	from 	PERB.

Warning 	Letter
LA-CE-3310
June 23, 	1993
Page 3
amended 	charge 	should be 	prepared 	on a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly labeled First Amended 	Charge,
contain all 	the 	facts 	and allegations you wish 	to make, 	and
be 	signed under penalty of 	perjury by 	the 	charging party. 	The
amended 	charge must 	be 	served on 	the 	respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I 	do not 	receive an
amended charge or withdrawal 	from you before July 7, 	1993, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
7/I

STATE OF CALIFORNIA 	. 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER.B
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
June 23, 	1993
Charles R. 	Gustafson, 	Esq.
California 	Teachers 	Association
P.O. 	Box 92888
Los Angeles, 	California 	90009
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3310,
Buena Park Teachers Association, 	CTA/NEA v. 	Buena 	Park
School 	District
Dear Mr. 	Gustafson:
In the above-referenced charge, 	filed on May 18, 	1993, 	the Buena
Park Teachers Association, 	CTA/NEA 	(Association) 	alleges 	that 	the
Buena 	Park School District 	(District) 	insisted to 	impasse 	on an
illegal 	contract provision. 	This 	conduct 	is alleged to violate
Government Code sections 3543.5(a), 	(b) 	and 	(c) 	of the
Educational Employment Relations Act 	(EERA).
My 	investigation of 	this 	charge 	reveals 	the 	following 	relevant
facts.
The Association and 	the District were parties 	to a 	collective
bargaining agreement 	for the term July 1, 	1991, 	through June 	30,
1992. 	The agreement 	contains 	a salary provision concerning
anniversary increments 	that 	states as 	follows:
Qualifying years for 14th, 	16th, 	20th and
25th anniversary 	increments 	must 	have 	been
served 	in 	the Buena 	Park School 	District.
As 	a result, 	employees given credit 	for prior experience 	for
general 	salary placement 	purposes 	are not 	given 	that 	credit 	for
anniversary 	increment 	purposes.1
The 	parties 	began negotiating a 	successor agreement 	in October
1992. 	The Association took 	the position that 	the anniversary
increment 	provision violated Education 	Code 	section 	45028 	and
should be 	eliminated, 	but 	the District 	allegedly 	insisted 	that
the 	provision be maintained. 	The parties 	jointly declared
1This would appear 	to be 	the 	nature 	of 	an anniversary
increment.

Dismissal 	Letter
LA-CE-3310
July 8, 	1993
Page 2
I 	am therefore dismissing the 	charge, 	based on 	the 	facts 	and
reasons 	contained 	in this 	letter and my June 	23 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to the Board itself within twenty 	(2 0) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five 	copies
of 	such appeal 	must be actually 	received by 	the Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express 	United States mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall 	apply.
The Board's address 	is:
Public Employment Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
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
copies 	of 	a statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 each 	copy of 	a document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	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.

Dismissal 	Letter
LA-CE-3310
July 8, 	1993
Page 3
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.
The 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. 	(Cal. Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the specified time 	limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By THOMAS J.ALLEN	ALLEN
Regional 	Attorney
Attachment
cc: 	Asa E. Reaves, 	Esq.
,
L I < f