Calexico Unified School District (PERB 0265E)

STATE 	OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATED CALEXICO TEACHERS,
Charging 	P a r t y ,
v .
CALEXICO 	UNIFIED SCHOOL 	DISTRICT,
R e s p o n d e n t .
Case 	No. 	LA-CE-1259
PERB 	D e c i s i o n No. 	265
December 	2 0 , 	1982
Appearances; 	Charles R. 	Gustafson, 	Attorney for Associated
Calexico Teachers; 	and Suzanne C. 	Rawlings, Attorney for 	the
Calexico Unified 	School 	D i s t r i c t .
Before Gluck, 	Chairperson; 	Morgenstern 	and Jensen, 	Members.
DECISION
GLUCK, 	Chairperson: 	The 	Calexico Unified School District
(District) 	excepts 	to a 	hearing officer's 	finding 	that 	its
unilateral 	rescission 	of 	teachers' 	option 	to 	receive 	their
July, 	August 	and September 	pay warrants 	all 	at 	the 	end of 	the
regular 	school year 	violated subsections 	3543.5(a), 	(b) 	and 	(c)
of 	the Educational Employment 	Relations Act 	(EERA).1
1The 	EERA 	is 	codified 	at Government 	Code 	section 	3540
et seq. 	Unless 	otherwise 	noted, 	all 	references 	are to the
Government 	Code.
Subsections 3543.5(a), 	(b) and 	(c) provide:
It shall 	be 	unlawful 	for 	a 	public school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
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discriminate 	against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or 	coerce
employees 	because of 	their 	exercise of
rights 	guaranteed 	by 	this 	chapter.
(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.
FACTS
Pursuant 	to District 	policy, 	all 	teachers 	employed on or
before 	the 	first 	day of 	school 	receive 	12 pay warrants 	per
year.2 Twelve-month 	teachers 	who 	so 	notified 	the 	District
before May 	1 	could 	collect 	their July, 	August, 	and September
warrants 	on 	the 	last day of 	the 	school year. 	This practice 	had
been in 	effect for 	at least 	seven years, 	but was 	not 	embodied
in the 	parties' 	negotiated agreement.
2School 	board 	policy 	515.2 	provides:
"Twelve 	Pay" 	contracts shall 	be written for
all 	full-time 	regular 	certificated 	employees
on or 	before 	the 	first 	day of 	school 	and
"Ten Pay" 	contracts 	shall 	be written 	for 	all
certificated 	employees 	employed 	after 	the
first 	day of 	school.
The Associated 	Calexico 	Teachers 	(ACT)3 learned 	on
September 	4, 	1980, 	from County Superintendent of Schools
Herb Farrar, 	that 	the District 	intended 	to suspend 	this pay
option. 	Farrar, 	citing 	the 	county 	counsel's opinion that 	the
Education Code 	does 	not 	authorize 	lump sum payments, 	indicated
3ACT 	is 	the 	exclusive 	representative 	of 	the 	District's
certificated 	employees.
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that cash flow problems in the various school districts made
rescission of 	this method of payment necessary. 	ACT's
attorney, who was present at the meeting where Farrar made this
announcement, 	immediately voiced his disagreement with the
county counsel's opinion. 	The day after this meeting, ACT's
president, 	Irene Rael, 	distributed a bulletin to her members
informing 	them of 	the District's proposed action.4
The county superintendent handles the District's payroll
and issues warrants 	to District 	employees.5 On September 5,
4The 	bulletin reads, 	in pertinent 	part:
UNIT MEMBERS:
We have 	been 	informed 	that 	our 	option of
taking 	a lump sum payment 	with our June 	pay
is 	no 	longer 	feasible since 	the County
Council 	[sic] 	has 	ruled 	and 	informed 	the
Districts 	that 	the 	County Board of Education
would 	no longer 	be 	able 	to 	honor 	the
requests.
CTA legal service has informed us that they
disagree with this ruling and will meet with
the County Council to come to some
conclusion on the matter.
This letter 	is just to alert you of an
option that might be coming your way.
5See Education Code section 42649.5, text at page 16,
infra.
W
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3

Farrar 	wrote 	all 	district superintendents 	of 	his 	decision 	to
eliminate 	the 	lump sum option 	and 	suggested 	that 	the
superintendents 	inform 	their 	staffs 	by 	a memo 	joined 	in 	by 	the
various 	teachers 	association officers. 	He 	also 	urged 	the
districts 	to offer 10-, 	11-, 	or 12-month pay options as
provided 	in 	the Education Code.
On September 	8, Ms. 	Rael met with Dr. 	R. 	F. Valdez,
superintendent 	of 	the Calexico District, 	and 	asked why 	she 	had
not 	been informed of 	this 	change 	earlier. 	He 	told 	her 	that 	his
hands 	were 	tied 	by 	the 	county counsel's opinion 	and 	that 	the
District was 	having 	a 	cash 	flow problem. 	They 	discussed
alternatives 	to 	the 	lump sum 	system, 	including 	a 	10-payment
plan which Valdez 	indicated 	the 	teachers 	would 	have 	to opt 	into
by 	September 	11 	if 	the District were 	to meet 	its 	bookkeeping
obligations.
On September 	9, 	Valdez's 	secretary visited Rael 	in her
classroom 	and 	asked 	her 	to 	initial 	a memorandum 	to 	all 	staff
informing 	them 	of 	the 	changes 	that 	Rael 	and Valdez had
discussed 	on 	the 	previous 	day.6 According 	to 	her 	testimony,
6This 	memo reads, 	in pertinent 	part:
. 	. 	. 	effective this school year,
certificated 	employees 	will 	have 	their 	post
school 	year monies 	paid 	in 	three
installments: 	at 	the end of June, at the
end of July, 	and 	at 	the 	end of August. 	This
will 	take 	place 	automatically 	unless 	you
elect 	to 	cancel 	the 	withholding 	of 	one-sixth
A	4

of 	your 	salary each month 	and 	to 	receive
your 	salary in ten equal payments. 	If you
choose to exercise 	this option, 	please
return 	the 	attached 	form 	. . . 	no later 	than
September 11, 1980.
Ms. 	Rael 	believed 	that 	her 	initials 	were 	requested only 	to
signify that 	the memo accurately recited 	the 	contents 	of 	her
conversation 	with Valdez. 	He 	initially 	testified 	that 	the
purpose 	of 	having 	her 	sign 	the memo was 	to have ACT 	join 	in
informing 	the staff 	of 	the 	change in pay options. 	However, 	he
later 	contradicted 	himself, 	claiming 	that 	the 	memo reflected 	an
agreement 	between 	himself 	and Rael.
During 	these 	events, 	the 	parties 	were negotiating a new
collective 	agreement. 	Although 	the subject 	of 	salaries 	had 	not
been 	settled, 	neither 	party 	raised 	the 	lump sum 	issue 	during
negotiations. 	Impasse was 	jointly 	declared on September 	15,
and on September 	19, 	Rael 	wrote Valdez demanding 	that
negotiations 	be 	reopened 	to 	consider 	the 	lump sum dispute. 	By
a letter 	dated September 	26, 	Valdez refused, 	explaining 	that
there was 	nothing 	to 	negotiate 	because 	the District 	could 	not
legally move 	from 	the 	position 	it 	had 	taken.7
7During 	mediation, 	the ACT 	negotiating 	team 	did 	inform
the mediator 	of 	the lump sum dispute. 	Whether 	the mediator
discussed 	the 	matter 	with 	the 	District's 	bargaining 	team 	is
disputed. 	He 	did, 	however, 	recommend that ACT 	drop the 	demand
ACT 	followed 	his 	advice, 	hoping 	to get 	a contract 	as 	soon as
possible 	and 	to 	settle 	the lump sum 	issue 	through 	an 	unfair
practice 	charge.
S5

After 	ratification on October 	22 of the agreement the
parties 	did reach, 	Rael 	again wrote to Valdez requesting
negotiations over the lump sum payment. 	He refused, 	stating
that 	negotiations 	were over 	until 	the 	following year's
reopeners 	and again citing 	the 	county superintendent's 	refusal
to issue lump sum warrants and the county counsel's opinion.
ACT then filed this charge on November 26 alleging that the
District violated subsections 3543.5(a), 	(b), 	and 	(c) 	by
unilaterally 	"affecting 	the method of payment of wages 	to
certificated employees" by suspending the lump sum option.
The 	hearing officer 	determined that the lump sum
arrangement was a matter 	related to wages; 	the Education Code
did not prohibit the arrangement; 	and that ACT did not waive
its 	right 	to bargain over 	this change. 	He also rejected the
District's 	claim 	that 	the 	county superintendent's 	authority
over pay matters made negotiating impossible.
In its exceptions, 	the District argues that: 	1) 	the
Education Code precludes negotiating over 	the lump sum
practice; 	2) 	the District did in fact negotiate with ACT at the
September 8 meeting between Valdez and Rael; 3) 	by joining with
Valdez in issuing the September 9 memo, Rael waived ACT's right
to negotiate over 	the change and ACT 	is therefore guilty of
laches; 	and 4) 	the county superintendent's exclusive authority
over 	payroll matters made 	it 	impossible for 	the District 	to
negotiate over the change in pay methods.
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DISCUSSION
The Education Code 	Preemption
In Jefferson School District 	(6/19/80) 	PERB 	Decision
No. 	133, 	PERB 	considered 	the 	apparent 	conflicts 	between section
3540 	and 	section 	3543.28 	which 	defines 	the 	scope 	of
negotiations. 	The Board 	concluded:
8Section 3540 	reads, 	in pertinent part:
Nothing 	contained 	herein 	shall 	be 	deemed 	to
supersede 	other 	provisions 	of 	the Education
Code 	and 	the 	rules 	and 	regulations 	of 	public
school 	employers 	which 	establish 	and
regulate 	tenure or 	a merit 	or 	civil 	service
system or 	which 	provide 	for 	other 	methods 	of
administering 	employer-employee 	relations,
so 	long 	as 	the 	rules 	and 	regulations 	or
other methods 	of 	the 	public school 	employer
do 	not 	conflict 	with 	lawful 	collective
agreements.
Subsection 3543.2(a) 	reads, 	in pertinent part:
The scope 	of 	representation shall 	be 	limited
to matters 	relating to wages, 	hours 	of
employment, 	and 	other 	terms 	and 	conditions
of 	employment. 	"Terms 	and conditions 	of
employment" 	mean 	health 	and welfare 	benefits
as defined by Section 53200, 	leave, 	transfer
and 	reassignment 	policies, 	safety 	conditions
of employment, class size, procedures 	to be
used 	for 	the 	evaluation of 	employees,
organizational 	security pursuant 	to Section
3546, 	procedures for 	processing 	grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	and the layoff 	of 	probationary
certificated 	school 	district 	employees,
pursuant 	to Section 	44959.5 	of 	the Education
Code. 	In addition, 	the exclusive
representative 	of 	certificated 	personnel 	has
the 	right 	to consult on 	the 	definition of
educational objectives, 	the 	determination of
the 	content 	of 	courses 	and curriculum, 	and
the 	selection of 	textbooks 	to the extent
such 	matters 	are within 	the 	discretion of
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the 	public school 	employer 	under 	the 	law.
All matters 	not 	specifically 	enumerated 	are
reserved 	to 	the 	public school 	employer 	and
may 	not 	be 	a subject 	of meeting 	and
negotiating, 	provided 	that 	nothing herein
may 	be 	construed 	to limit 	the 	right 	of 	the
public 	school 	employer 	to 	consult with 	any
employees 	or 	employee 	organization on 	any
matter 	outside 	the 	scope 	of 	representation.
. 	. 	. 	those proposals which otherwise meet
our 	test 	of 	negotiability are within 	scope,
unless 	a 	conflicting 	Education Code
provision 	precludes 	variance 	from 	its
terms. 	Jefferson, supra, p. 	8.
We do 	not 	find 	that 	the Education Code 	precludes
negotiations 	on lump sum 	payment 	plans. 	Several Education Code
sections 	govern 	district 	pay 	practices:
Section 45038;
The 	governing 	board 	of 	any 	school 	district
may 	arrange 	to 	pay 	the 	persons 	in positions
requiring 	certification 	qualifications
employed 	by 	it, 	or 	any one or more of 	such
employees 	or 	one or 	more 	groups 	or
categories 	of 	such 	employees 	in 	either 	ten
or 	eleven 	or 	twelve 	equal 	payments 	instead
of 	by 	the school month.
In lieu 	thereof, 	orders 	for 	the 	payment 	of
salary 	and 	payroll 	orders 	for 	the 	payment 	of
salary and warrants 	for 	the 	payment 	of
salary of 	employees 	employed 	in 	positions
requiring 	certification 	qualifications 	may
be 	drawn once each two weeks, 	twice 	a month,
or 	once 	each 	four 	weeks 	as 	determined 	by 	the
Governing Board. 	[Emphasis 	added.]
Section 	45039;
Where 	the 	governing 	board 	of 	any 	school
district 	arranges 	to 	pay 	persons 	employed 	by
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it in twelve equal payments for 	the year, 	it
may 	pay 	each monthly 	installment 	at 	the 	end
of 	each 	calendar month, 	whether 	or 	not 	the
persons 	are 	actually 	engaged 	in 	teaching
during 	the month. 	[Emphasis 	added.]
Section 45040 provides, 	in relevant part;
The 	governing 	board 	of 	any 	school 	district
not 	paying 	the 	annual 	salary of 	persons
employed 	by 	the 	district 	in 	twelve equal
monthly payments 	may 	withhold 	from 	each
payment made 	to 	each 	employee 	an 	amount
equal 	to 16 	2/3 	percent 	thereof.
The 	total 	of 	the 	amount 	deducted 	from 	the
salary of 	any 	employee 	during 	any 	school
year 	shall 	be 	paid 	to 	him in 	two equal
installments, 	one 	installment 	to be paid not
later 	than 	the 	fifth 	day of August 	next
succeeding, 	and one 	installment 	not 	later
than 	the 	fifth 	day 	of September 	next
succeeding. . . .
Section 45048 provides, 	in relevant part;
Each 	salary payment 	for 	any 	calendar 	month
may 	be made on 	the last working 	day of 	the
month 	and 	shall 	be 	paid not 	earlier 	than 	the
last 	working 	day of 	the month 	and 	not later
than 	the 	fifth day of 	the 	succeeding
calendar month. 	. 	. 	. 	[Emphasis Added.]
This 	section shall 	not prohibit 	a school
district 	from making 	a 	payment 	of 	earned
salary 	prior 	to 	the 	last 	working 	day of 	the
month or 	payroll 	period.
The District 	argues 	that Education Code 	sections 	45038,
45039, 	and 	45048 	read 	together, 	require payments 	on the 	12-pay
plan 	to 	be equal 	and 	evenly 	spaced on 	a 	calendar month 	basis.
Therefore, 	an arrangement, 	such as 	that 	in Calexico, by which
employees 	receive 	12 	separate 	and equal 	pay checks 	but 	receive
9
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9

3 	at 	the 	same time, 	contravenes 	the Code. 	It further 	argues
that 	the last 	paragraph of 	section 	45048 	does 	not 	allow
unrestricted 	advancement 	of 	earned 	salary 	but 	limits 	advances
only 	within 	the 	particular 	month 	in which 	the 	pay 	was 	earned.
We 	find 	these 	interpretations 	unnecessarily 	narrow 	and
restrictive. 	Section 	45038 	establishes a 	variety of
alternative 	pay 	systems, 	including one 	by which 	employees 	are
paid in 12 equal 	installments. 	Read 	by 	itself, 	this 	section
would 	seem 	to prohibit 	lump sum 	arrangements. 	Although 	the
statute 	does 	not literally 	address 	the 	timing of 	payments, 	it
could 	be 	argued 	that 	the 	requirement 	of 	"equal" 	payments 	cannot
be 	circumvented 	by 	simply 	distributing 	three 	equal 	warrants 	at
the 	same 	time. 	However, 	section 	45039 gives 	districts 	which
pay 	on 	a 	12-pay 	contract 	system 	discretion 	to 	pay 	each monthly
installment 	even 	if 	teachers 	did not 	actually work during 	the
month. 	The obvious 	purpose of 	this 	section 	is 	to 	allow
teachers 	entitled 	to 12 payments 	to 	receive warrants 	during 	the
summer 	months 	when 	they 	are 	not 	actually 	teaching.
Further, 	section 45048 	reflects 	a principal 	concern of 	the
Code 	that 	teachers 	not 	be 	paid 	until 	they 	have 	performed 	the
work. 	It provides 	that 	teachers 	be 	paid for 	work performed 	by
not later 	than 	the 	fifth 	day 	of 	the following month, 	but
permits 	a district 	to pay 	earned 	salary 	"prior 	to 	the 	last 	day
of 	the month 	or 	payroll 	period." 	It 	does 	not 	limit 	how much
earlier 	than 	the 	last 	day 	of 	the 	month or 	pay 	period 	such
10

payment may 	be made except 	that 	the 	salary must 	have 	been
earned. 	We 	find 	no 	reason why 	the 	words 	"prior 	to 	the 	last 	day
of 	the month or 	pay period," 	do 	not mean "anytime before 	. 	. 	."
or 	why 	they 	should 	limit 	advanced 	payment 	of 	earned 	salary only
within 	an 	arbitrarily 	designated month.
We 	see 	this 	reading 	of 	the Education Code 	as 	consistent
with 	its 	purposes; 	namely, 	to 	assure that 	teachers 	are paid at
least 	by 	a 	certain date 	following 	their 	completion of 	the 	work
involved, 	while, 	at the same 	time, 	precluding the advance of
public 	funds 	which 	have 	not 	been 	earned.
There 	is 	no question that 	the 	advances previously made 	by
the 	District 	were 	for 	work already completed 	by 	the 	teachers.
Whether 	the 	three warrants 	were 	issued 	simultaneously 	or 	not,
the 	funds 	they 	represented 	were 	committed 	and 	undoubtedly
legally 	encumbered.9
In Jefferson, 	supra, 	we 	held that 	pay days 	are related 	to
wages 	and 	negotiable. 	The District 	here 	does 	not 	argue
otherwise.
The 	District's Unilateral Acts
The 	District 	insists 	that 	both Rael 	and Valdez considered
their September 	8 meeting 	to 	be 	a negotiating 	session; 	both
knew 	that 	the 	District 	needed 	to 	cease 	lump sum payments 	and
9The 	pay warrants were pre-printed and simultaneously
delivered to the District at the end of the school year.
11

that 	alternative 	payment methods 	had 	to 	be 	exercised 	by
September 	15 	to meet 	bookkeeping 	requirements. 	The District
points 	to Rael's September 	5 	bulletin 	to 	unit members 	as
evidence 	that ACT 	knew 	the 	District 	had 	to 	act 	quickly 	to
resolve 	alternative 	arrangements. 	The District 	claims 	that 	by
reaching 	the 	mutual 	understanding 	embodied 	in 	the 	joint
memorandum 	the Association waived 	its 	right 	to 	negotiate over
the 	unilateral 	change 	in the 	future.
But, 	at 	the September 	8 meeting, Valdez presented Rael with
a 	fait 	accompli. 	He said that 	his 	"hands 	were 	tied" 	by 	the
county 	counsel's 	opinion 	and 	the 	county 	superintendent's
refusal 	to 	honor 	lump sum warrants. 	He 	acted on Farrar's
instructions 	to 	inform 	the 	staff 	of 	the 	change 	as 	soon 	as
possible 	by 	a 	joint memorandum with ACT 	officers. 	It was 	for
this 	reason 	he met 	with Rael. 	Furthermore, 	we 	note 	that Valdez
did 	not 	claim 	an 	agreement 	had 	already 	been 	reached when 	he
refused 	to 	reopen 	negotiations 	on 	the 	pay 	announcements.
Instead, 	he 	repeated 	his 	claim 	that 	legal 	considerations
prevented 	him 	from 	bargaining 	on 	the matter.
Even granting 	that Ms. 	Rael 	"agreed" 	that 	the District
could 	no longer 	continue 	to 	issue 	warrants 	in 	a lump sum
payment, 	we 	find 	no waiver. 	An acknowledgement 	that Valdez was
following 	orders 	is 	neither 	acquiescence 	in his 	conduct 	nor
admission 	that 	his 	conduct 	was 	lawful 	under EERA. 	Her
September 	5 	bulletin 	to 	unit members 	informed 	them 	that 	the
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District intended to make these 	changes. 	But 	it also explained
that 	the 	California Teachers Association 	legal 	staff 	disagreed
with the county counsel's opinion and implied that the matter
was far 	from settled. 	We do not find in these facts waiver of
"a reasonable opportunity to bargain over a decision not
already firmly made by the employer." 	San Mateo County
Community College District 	(6/8/79) 	PERB Decision No. 	94.
Laches Defense
The District's laches 	defense 	rests 	in its 	claim that 	it
relied on ACT's alleged acquiescence to the unilateral change
when 	it offered to employees 	the 10-month pay option and
notified 	the 	county superintendent 	to modify 	the 	payroll
procedures 	accordingly.
In order 	to assert 	successfully the 	defense of 	laches, 	a
defendant must show that 	the 	plaintiff 	unreasonably delayed 	in
asserting 	its 	claim and 	that 	the 	plaintiff 	either 	acquiesced 	in
the act about which he now complains or that the defendant
relied to his detriment on the plaintiff's conduct or 	silence.
Cal.Jur.3d Equity, Sec. 	45.10
ACT did not delay in asserting its claims. 	At the very
meeting where the change was announced, CTA's attorney voiced
his objections 	to the county counsel's opinion. 	Rael met with
10The 	doctrine 	is 	embodied 	in California Civil Code
section 3527: 	"The law helps the vigilant, 	before those who
sleep on their rights."
13

Valdez 	at the earliest opportunity 	and objected to his 	not
having informed her 	earlier of 	the impending action. 	As early
as September 19, she formally demanded to bargain over the
altered pay procedure, although she probably had no duty to do
so.11
Further, 	the District 	has 	not 	shown that 	it acted to its
own detriment in reliance upon ACT's conduct or 	silence. 	It
was not ACT's actions which caused the District to change the
pay schedule or to offer the 10-month option to employees, 	but
the county superintendent's instructions. 	While the District's
bookkeeping may have made 	it 	necessary that employees 	notify 	it
by a certain date if they chose to be paid 10 times a year, ACT
was 	not obligated to respond at all to the District's 10-month
payment suggestion which was made as part of an unlawful change
in negotiable policy.
The Impossibility Defense
The 	District 	claims 	that 	it 	is 	impossible for 	it 	to
negotiate over the elimination of the lump sum option since the
county superintendent 	has ultimate authority over pay warrants;
because he would no longer honor lump sum warrants, 	it had no
choice 	but to offer 	other payment plans. 	The District relies
on Education Code section 42649.5, which reads:
11The 	District 	sought 	a 	change 	in policy 	and was
therefore obligated 	to 	request 	negotiations.
14

In 	a 	county 	in which 	the 	board 	of
supervisors 	has 	transferred 	educational
functions 	to 	the 	county 	board 	of 	education
pursuant 	to Section 1080, 	and a single
budget 	has 	been 	authorized 	for 	the 	purposes
of 	the 	county school 	service 	fund, 	county
board of 	education, 	county 	committee on
school 	district 	organization, 	and 	the 	office
of 	the 	county superintendent of 	schools
pursuant 	to Sections 	1620 	to 1625,
inclusive, 	the 	duties of 	the 	county auditor
specified 	in this 	article shall 	be 	performed
by 	the 	county superintendent of 	schools.
A 	listing of 	all 	warrants, 	approved 	and
allowed 	by 	the 	county superintendent 	of
schools pursuant 	to 	this 	section shall 	be
forwarded 	to 	the 	county 	auditor 	on 	the 	same
day 	the 	warrants 	are 	forwarded 	to 	the 	school
district 	or 	the 	payee. 	The form of 	the
warrant 	and 	the 	form 	and 	content 	of 	the
warrant 	listing 	shall 	be 	as prescribed 	by
the 	county auditor.
Notwithstanding 	Section 	27005 	of 	the
Government Code, 	or 	any other 	section
requiring 	orders 	for 	warrants 	or 	warrants 	to
be 	signed 	by 	the 	county auditor, 	the 	county
treasurer 	in 	counties 	subject 	to 	this
section 	shall 	pay warrants 	which 	are 	signed
by the 	county superintendent of 	schools, 	and
the 	county auditor 	shall 	not 	be 	liable 	under
his 	bond 	or 	otherwise for 	a warrant 	issued
pursuant 	to this 	section.
This 	section shall 	apply only 	in 	those
counties 	in which 	the 	county 	board of
supervisors 	has 	adopted 	its 	provisions 	by
resolution. 	(Emphasis 	added.)
Under 	this 	section, 	the 	duties of 	the 	county auditor
"specified 	in this 	article are 	to 	be 	performed 	by 	the
Superintendent." 	However, 	the duties of 	the 	county auditor, 	as
defined, 	do 	not 	include 	prescribing 	pay methods 	or 	otherwise
directing districts' 	pay practices.
15

The 	second 	paragraph 	of 	this 	statute 	apparently 	allows 	the
county superintendent 	to 	"approve 	and 	allow" 	warrants. 	But
Education Code 	section 	42636 	provides:
The 	county 	superintendent 	of 	schools may
examine 	each 	order 	on 	school 	district 	funds
transmitted 	to 	him, 	in the 	order 	in which 	it
is 	received in his office. 	If 	it appears
that 	the 	order 	is properly drawn 	for 	the
payment 	of 	legally 	authorized 	expenses
against 	the proper 	funds 	of 	the 	district,
and 	that 	there 	are sufficient moneys 	in 	the
fund or 	funds 	against which 	the 	order 	is
drawn 	to pay 	it, 	he shall 	endorse 	upon it
"examined and approved," 	and shall, 	in
attestation thereof, 	affix his 	signature 	and
number 	and 	date 	the 	requisition 	and 	transmit
it directly to the 	county auditor, 	in the
order 	in which 	the 	order 	is 	received 	in his
office. 	The 	county 	superintendent may
prescribe 	alternative 	methods 	for 	districts
determined 	to 	be 	fiscally 	accountable
pursuant 	to Section 	42650. 	(Emphasis 	added.)
The 	superintendent must 	endorse 	pay 	orders 	if 	they 	are
drawn 	for 	payment 	of 	legally authorized 	expenses 	and 	if 	there
are sufficient funds. 	Thus, 	while 	the 	section authorizes 	the
superintendent 	to 	refuse 	to 	issue 	pay warrants 	when 	funds 	are
lacking, 	it 	does 	not authorize 	him 	to 	decide the 	pay practices
of 	the District.
Finally, 	Education Code 	section 	35160 	provides 	the
governing 	board 	of 	school 	districts 	with 	omnibus 	authority 	to
"act 	in any manner 	which 	is not 	in conflict with 	. 	. 	. 	any
law 	. . . 	.12 	Because 	the 	lump sum payment 	does
12Section 	35160. 	Authority of 	governing 	boards 	commencing
16

January 1, 	1976.
On and 	after January 1, 	1976, 	the 	governing
board 	of 	any 	school 	district may 	initiate
and 	carry on any program, 	activity, 	or may
otherwise 	act 	in 	any manner which 	is 	not 	in
conflict 	with or 	inconsistent 	with, 	or
preempted 	by, 	any law 	and which 	is 	not in
conflict 	with 	the 	purposes 	for 	which 	school
districts 	are 	established.
not conflict with any law, 	the District was empowered to
initiate 	that 	arrangement 	and to resist the county's attempt to
discontinue i t . 	It was 	not impossible for the District to
successfully defend 	its 	pay practices 	against 	the 	county
superintendent's directive. 	Its failure to do so implicates
the District 	in the 	unilateral change 	for which it will be held
liable.
Consequently, we find that the District has violated
Government Code subsection 3543.5(c) 	and concurrently violated
subsections 3543.5(a) and 	(b). 	San Francisco Community College
District 	(10/12/79) PERB Decision No. 105.
ORDER
Based 	on 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law 	and 	the 	entire 	record of 	this 	case, 	and pursuant 	to
Government Code subsection 3541.5 (c), 	it 	is 	hereby ORDERED that
the 	Calexico Unified School 	District 	shall:
A. 	CEASE 	AND DESIST 	FROM:
1. 	Unilaterally discontinuing 	teachers' 	option to
receive 	their July, 	August 	and September 	pay warrants 	on 	the
17

last 	day of 	the 	regular 	school year 	without 	notifying 	the
Associated Calexico Teachers 	and 	affording 	it 	an opportunity 	to
negotiate.
2. 	Denying 	the Associated Calexico Teachers 	its 	right
to 	represent 	unit members 	by discontinuing 	the lump sum pay
option 	without 	meeting 	and 	negotiating 	with ACT.
3. 	Interfering 	with 	employees 	because 	of 	their
exercise of 	their 	right 	to 	select 	an 	exclusive 	representative
to 	negotiate 	with 	the 	employer 	on 	their 	behalf 	by 	unilaterally
discontinuing 	the 	lump sum pay option.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS:
1. 	Restore 	to 	teachers 	the 	option to receive 	their
July, 	August 	and September 	pay warrants 	on the last 	day of 	the
regular 	school 	year 	and 	direct 	the 	county 	superintendent 	of
schools 	to 	honor 	such 	pay 	orders 	as 	required 	by Education Code
section 	42636 	commencing with 	the 	1982-83 	school 	year.
2. 	Within thirty 	(30) 	calendar 	days following 	the
date of 	service 	of 	this Decision, 	post 	at 	all 	work locations
where 	notices 	to 	employees 	are 	customarily 	posted 	copies 	of 	the
attached Notice. 	Such 	posting 	shall 	be maintained 	for 	a period
of 	thirty 	(30) 	consecutive workdays. 	Reasonable steps shall be
taken 	to 	insure 	that 	such 	notices 	are 	not 	altered, 	defaced,
covered 	by 	other material 	or 	reduced 	in 	size.
Members Morgenstern 	and Jensen 	joined 	in 	this Decision.
18
•

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Case No. 	LA-CE-1259 	in which all parties
had 	the 	right to participate, 	it has 	been 	found 	that 	the
Calexico 	Unified 	School 	District 	violated 	the 	Educational
Employment 	Relations 	Act 	by 	unilaterally 	eliminating 	teachers'
option 	to receive 	their 	July, 	August 	and 	September 	pay 	checks
on 	the last day of 	the 	regular 	school year. 	It has 	also 	been
found 	that 	this 	same 	action 	interfered 	with 	the 	District's
employees' 	exercise 	of 	rights 	protected 	by 	the Educational
Employment 	Relations 	Act 	and 	has 	interfered 	with 	the 	Associated
Calexico Teachers' 	right to represent unit members. 	As a
result of 	this conduct, 	we 	have 	been ordered 	to post 	this
Notice 	and 	we 	will 	abide 	by 	the 	following:
1. 	CEASE AND DESIST FROM:
Unilaterally eliminating 	teachers' 	option 	to 	receive 	their
summer 	pay warrants 	on 	the 	last 	day 	of 	the 	regular 	school 	year.
2. 	TAKE AFFIRMATIVE ACTION TO:
Reinstate 	the 	lump 	sum 	pay 	option 	and 	direct 	the 	county
superintendent 	of 	schools 	to honor 	the July, 	August and
September 	pay orders 	as 	required 	by Education Code 	section
42636.
Calexico 	Unified 	School 	District
Dated: 	By_
Authorized Agent 	of 	the 	District
THIS 	IS AN 	OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND MUST NOT
BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.