Saugus Union School District (PERB 0443E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SAUGUS TEACHERS ASSOCIATION, CTA/NEA,

)
Charging Party, Case No. LA-CE-1972
Vv. PERB Decision No. 443
SAUGUS UNION SCHOOL DISTRICT, November 29, 1984
Respondent. )

Appearances: Michael R. White, Attorney for the Saugus
Teachers Association, CTA/NEA; Atkinson, Andelson, Loya, Ruud &
Romo by James C. Romo for the Saugus Union School District.

Before Hesse, Chairperson; Jaeger and Morgenstern, Members.*
DECISION

This case is before the Public Employment Relations Board
(Board) on an appeal by the Saugus Teachers Association,
CTA/NEA of the Board agent's dismissal, attached hereto, of its
charge alleging that the Saugus Union School District violated
section 3543.5(a), (b), and (c) of the Educational Employment
Relations Act (Government Code section 3540 et seq.).

We have reviewed the dismissal and, insofar as the Board
agent concludes that the charge was untimely filed, we adopt it
as the Decision of the Board itself.

ORDER
The unfair practice charge in Case No. LA-CE-1972 is

DISMISSED WITHOUT LEAVE TO AMEND.
By the BOARD

*Members Tovar and Burt did not participate in this Decision.

GEORGE DcUKM.Ejl..>.N, L'7wr,1uc
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
I.OS t.NGELES, CALIFORNIA 	90010
l2 J 3) ?:;6-J 1~7
June 	15, 	1984
Michael 	White, 	Esq.,
California 	Teachers Asnociation
P. 	Box 92888
Los 	Angeles, 	CA 	90009
o.
James 	Romo. 	Esq.
Atkinsonr 	Andelson, 	Loya?
Ruud 	& Romo
911 	Stud~baker 	Roaay 	Suite 	250
Long Beacht 	C..~ 	90815
c.
RE: 	LA-<:E~ 197 2 v 	Saug_us 'I'eachers 	Ass:..-c_:ia tion 	v.
~_US 	Uni_on __ School __ Distr_ict l
DISMlSSf'-..L 	OP 	UNJi'A!R PRACTJC.1-: C't.J1.RGR
This 	charg~ 	w&a 	filed 	on Mar.ch 	23. 	1984. 	While 	it 	contains
much 	factual 	background 	informationr 	lhe 	essential 	allegation
is 	that: 	during 	the 	1980-81 and 	J.981 .. ·82 	school 	year, 	the
District 	refused 	to 	reinstate 	Sally 	Dixon 	to 	the 	appropriate
salary 	schedule 	pursuant 	to 	Education 	Code 	s~ction 	44931 	and
contrary 	to Article 	XIX 	of 	the 	parties' 	collective 	bargaining
agreement. 	The 	charge 	therefore 	alleges 	that 	the 	District's
action 	constitutes 	a 	unilateral 	change 	in 	the 	policy 	embodied
in 	that 	agreement~ 	·
The 	essential 	facts 	are 	as 	follows. 	Sally 	Dixon 	had 	been
employed 	at 	Saugus 	Union 	School 	District 	for 	some 	12 	years 	as 	a
teacher 	prior 	to 	her 	resignation 	(effective 	during 	the 	1979-80
school year). 	In 	July, 	1980, 	she 	s011gl'lt 	reemployment 	by 	the
District. 	Although 	she 	was 	hired 	for 	the 	1980-81 	school 	year,
she 	was 	place<l 	on 	the 	salary 	scheaule Step 6, 	Column V, 	which
was 	far 	below 	the 	level 	she 	occupied 	at 	the 	time 	she 	resigned
(Step 	12, 	Column V). 	The 	difference 	was 	that 	the 	District 	gave
her 	credit 	for 	only 	5 	years 	of 	previous 	ser~ice 	instead 	of 	her
actual 	12 	years 	which 	the 	Union 	claims 	should 	have 	been 	the
proper 	credit.
Throughout 	the 	1980-81 	school 	year, 	Dixon 	repeatedly 	requested
that 	the 	District 	reinstate 	her 	to 	the 	salary 	schedule
placement 	she 	occupied 	at 	the 	time 	of 	her 	resignation 	pursuant
to 	Education 	Code 	Section 	44931. 	She 	was 	not 	granted 	that
request, 	nor 	did 	she 	file 	a 	grievance. 	Instead, 	she 	continued
her 	employment 	at 	the 	disputed 	level 	for 	the 	1981-1982 	school
year 	as 	well.

LA-CE-1972
June 	15, 	1984
Page 	2
On 	June 	6, 	1982, 	the 	Union 	{Saugus 	Teachers 	Association) 	filed
a 	Writ 	of 	Mandate 	with 	the 	Superior 	Court 	in 	Los 	AngeleE 	to
compel 	compliance 	with 	the 	Educat lon Code,. 	•11 he 	action 	was
dismissed 	without 	prejudice 	in 	July, ·1982 	for 	faD.ure 	to
exhaust 	administrative 	(grievance) 	remedies.
The 	Union 	stibmitted 	the 	issues 	to 	arbitration 	under 	the
grievance 	procedure 	in 	the 	parties' 	collective 	bargaining
contract. 	Because 	the 	grievance 	procedure 	did 	not 	end 	in
binding 	arbitration, 	the 	District 	vacated 	the 	arbitrator's
decision, 	which 	had 	been 	favorable 	to 	the 	union 	and 	issued 	on
March 	22, 	1983.
Thereafter, 	the 	District 	filed 	a 	second 	Peremptory Writ 	of
Mandate 	with 	the 	SupErio~ 	Court 	on 	ahout 	September 	~2, 	1983.
On 	October 	17, 	1983, 	the 	Court 	abated 	the 	action 	to 	permit 	the
Union 	to 	exhaust 	its 	administrative 	remedies 	before 	the 	PERB,
finding 	that 	the 	claim constituted 	"an 	arguable 	unfair 	practice
within 	an 	exclusive 	initial 	jurisdiction of 	the 	Public
Employment 	Relations Board 	(PERB)u •. The Union 	thereafter 	filed
this 	charge 	as 	noted 	above.
In 	order 	to 	establish 	that 	the 	Employer 	committed 	an 	unlawful
action, 	Charging 	Party 	must 	establish 	that 	it 	(Employer)
breached 	or 	otherwise 	altered 	the 	collective 	bargaining
agree:n~nt 	or 	its 	c-wn 	establisb~d 	past :;-,ractjc~, 	n 	requjrf-cl
element 	under 	Grant 	Joi_nt 	Union I_IJ_g.h_School 	D_is~.; ict 	( 2/26/82)
PERB 	Decision 	No. 	196. 	See 	also 	Kern 	CCD 	(8/19/83) 	PERB
Decision No. 	337, 	p. 	9 •• 	When 	the 	contract 	language 	is 	not
clear 	on 	a 	policy 	relating 	to 	terms 	and 	conditions 	of
emploY™?:nt, 	the 	PERB 	looks 	at 	evidence 	of 	past 	pratice 	to
determine 	whether 	an 	unlawful 	change 	took 	place. 	Pajaro Valley
(5/22/70) 	PERB Decision 	No. 	51; 	Rio 	Hortdo 	(12/31/82) 	PERB
Decision No. 	279, 	p. 	17; 	Marysville (5727/83) 	PERB 	Decision 	No.
314.
The 	contract 	article 	which 	allegedly 	embodies 	the 	policy, 	and
thus, 	the 	"status 	quo", 	reads:
Salary 	Regulations
A. 	All 	teachers 	shall 	be 	placed 	on 	the 	schedule
on 	the 	basis 	of 	training, 	years 	of 	service 	in 	the
Saugus 	Union 	School 	District 	and 	prior 	service.

LA-CE-1972
June 	15, 	1984
Page 	3
B. 	Teaching 	experience 	outside 	the 	Saugus 	Union
School 	District may 	be 	recognized 	to 	a 	maximum of 	five
years 	on 	the 	schedule.
According 	to 	the 	charge, 	this 	language 	can 	he 	read 	t6 	rc~uire
the 	District 	to 	credit 	Dixon 	with 	all 	her 	12 	years 	experience
gained 	within 	the 	District, 	and 	thus 	to 	place 	her 	at 	the 	salary
level 	that 	she 	occupied 	at 	the 	time of 	her 	resignation.
Education 	Code 	section 	44931 	is 	not 	incorporated 	into 	the
contract, 	and 	the 	contract 	language 	is 	not 	clear 	as 	to 	whether
the 	District 	must 	place 	teachers 	at 	any 	particular 	salary
level. 1 	Because 	the 	contract 	languag~ 	is 	ambiguous, 	it
cannot 	form 	the 	basis 	for 	establishing 	the 	status 	quo. 	And,
since 	the 	charge 	does 	not 	allege, 	nor 	has 	Charging 	Party
produced 	evidence of 	what 	the 	past 	practice 	was, 	an 	unlawful
unilateral 	change 	in 	terms 	and 	concl:i.t.i.cm~ 	of 	employment 	hc:f; 	not
been 	established.
The 	charge must 	be 	dismissed 	for 	the 	additional 	reason 	thc1t 	the
alleged 	violations of 	the 	EERA occurred 	more 	than 	six 	months
prior 	to 	its 	filing 	before 	the 	PERB. 	Government 	Code 	section
3541.5 	states 	that 	PERB 	cannot 	issue 	a 	complaint 	fr1 	respect 	of
any 	charge 	based 	upon 	an 	alleged 	unfair 	practice 	occurring 	more
than 	six 	months 	prior 	to 	the 	filing 	of 	the 	charge.
The 	allegations 	of 	District misconduct occurred, 	as-noted
~b~ve_. 	during 	1980 	and 	1981, 	f~r 	beyont 	the 	filing 	date 	of
March 	23, 	1984, 	and 	also 	more 	than 	six 	months 	before 	the
Union's 	filipg 	of 	the 	initial court 	action 	on 	June 	6, 	1982.
Although PERB 	allows 	the 	six-month 	requirement 	to 	be 	tolled
under 	some 	circumstances, 	tolling 	is 	inappropriate 	here.
In 	order 	to 	toll 	the 	six-month 	filing 	requirement, 	two 	criteria
must 	be m~t. 	First, 	tolling 	must 	not 	frustrate 	the 	achievement
of 	the 	purpose 	underlying 	the 	statute 	of 	limitations 	(i.e. 	to
prevent 	surprises 	through 	the 	revival of 	claims 	that 	have 	been
1The 	Union's 	allegations 	appear 	to 	be 	addressed 	by
Education 	Code 	section 	44931, 	which 	grants 	teachers, 	who 	are
reemployed 	within 	39 	months, 	the 	right 	to 	be 	restored 	to 	all
rights 	and 	benefits 	as 	though 	there 	was 	no 	break 	in 	service.
Although 	the 	alleged 	conduct 	arguably 	violates 	the 	Education
Code, 	the 	California 	Courts, 	not 	PERB, 	are 	empowered 	to 	enforce
that 	statute. 	Therese 	Dver 	v. 	CSEA 	(5/22/84) 	PERB 	Decision No.
342a. 	The 	Government 	Code, 	at 	Section 	3541.5 	further 	denies
PERB 	the 	authority 	to 	issue 	a 	complaint 	based 	upon 	an 	alleged
violation 	of 	a 	collective 	bargaining 	agreement 	that 	would 	not
also 	constitute 	an 	unfair 	practice.

LA-CE-1972
June 	15, 	1984
Page 	4
allowed 	to 	slumber 	until 	evidence 	is 	lost, 	memories 	have 	faded,
etc.). 	San 	Dieguito 	(2/25/82) 	PERB 	Decision 	No. 	194. 	Second,
if 	the 	first 	test 	is 	met, 	it 	must 	be 	shown 	that 	the 	charging
party 	had 	several 	legal 	remedies 	and 	reasonably 	and 	in 	good
faith 	pursued 	one 	of 	them. 	Ibido
Here, 	aside 	from 	repeatedly 	requesting 	that 	the 	District
reinstate 	her 	to 	her 	former 	salary 	level, 	Sally 	Dixon 	did
nothing 	betw~en September, 	1980 	and 	June, 	1982 	to 	pursue 	any
legal 	or 	administrative 	remedy. 	This 	situation 	is 	not 	unlike
that 	considered 	by 	the 	Board 	in 	CSEA 	v ... _Reg,ents _of 	u. 	C.
(10/27/83) 	PERB Decision No. 	353-H, 	where, 	during 	the 	six
months 	prior 	to 	the 	filing 	of 	the 	charge, 	the 	charging 	party's
only 	actions 	were 	to 	express 	to management 	its 	wish 	that 	some
employe€s 	be 	properly 	reclassified 	and 	that 	the 	Uni vend ty
conduct 	a 	reclassification 	investigation. 	The Board 	held 	that
these 	actions 	did 	not 	justify 	a 	tolling 	of 	the 	statute.2
Becaus~ 	the 	charging 	party 	slept on 	her 	rights 	during 	1980 	and
1981, 	the 	equitable 	tolling 	principle 	will 	not 	be 	applied 	here
to 	revive 	her 	claim 	before PERB.
For 	all 	of 	the 	fore-going 	reasons 1 	the 	charge 	is 	hereby
a ismi ssed. 	---
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulation 	32635
(California 	Administrative 	Code, 	titJe 	8, 	part 	III), 	you 	may
appeal 	the 	refusal 	to 	issue 	a 	complaint 	(dismissal) 	to 	the
Board 	i tse:lf.
Right 	to AI?Peal
You 	may obtain 	a 	review 	of 	this 	dismiss~l 	of 	the 	charge 	by
filing 	an 	appeal 	to 	the 	Board 	itself 	within 	twenty 	(20)
calendar 	days 	after 	service 	of 	this 	Notice 	(section 	32635(a).
To 	be 	timely 	filed, 	the 	original 	and.five 	(5) 	copies 	of 	such
appeal must 	be 	actually 	received 	by 	the 	Board 	itself 	before 	the
2It 	is 	questionable 	that 	the 	Union 	in 	this 	case 	could
have 	met 	the 	second 	criterion 	under 	the 	test, 	since, 	because
PERB 	does 	not 	enforce 	the Education Code, 	it 	cannot 	be 	shown
that 	it 	(Union) 	had 	several 	legal 	remedies, 	inasmuch 	as 	there
is 	no 	showing 	that 	there 	was 	a 	unilateral 	breach 	of 	an
established 	policy 	relating 	to 	terms 	and 	conditions 	of
employment.

LA-CE-1972
June 	15, 	1984
Page 	5
close 	of 	business 	(5:00 	p.m.) 	on JuJy 	~, 	1984, 	or 	sent 	by
telegraph 	or 	certified 	United 	State~ 	mail 	postmarked 	not 	later
than 	July 	5, 	1984 	(section 	32135). 	The 	Board's 	address 	1s:
Public Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 	95814
If 	you 	file 	a 	timely 	appeal of 	the 	refusal, 	any 	other 	party 	may
file 	with 	the 	executive 	assistant 	to 	the 	Board 	an 	original 	and
five 	(5) 	copies 	of 	a 	statement 	in 	opposition 	within 	twenty 	(20)
calendar 	days 	following 	the 	date 	of 	service 	of 	the 	appeal.
(section 	32635{b)) -
Service
All 	documgnts 	authorized 	to 	be 	filed 	herein 	except 	for
amendments 	to 	the 	charge 	must 	also 	be 	"served" 	upon 	all 	parties
to 	the 	proce:edi.ng, 	and 	a 	"proof 	of 	service" 	must 	accompany 	the
document 	filed 	with 	the 	Regional 	Office 	or 	the 	Board 	itself
{see 	section 32140 	for 	the 	required 	contents 	and 	a 	sample
form). 	The documents 	will be 	considered 	properly 	"served" 	when
personally 	delivered 	or 	deposited 	in 	the 	first-class 	mail
postage 	paid 	and 	properly 	addressed.
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
executive 	assistant 	to 	the 	Board 	at 	the 	previously 	noted
address. 	A request 	for 	an 	extension 	in 	which 	to 	file 	a
document 	with 	the 	Regional Office 	should 	be 	addressed 	to 	the
Regional 	Attorney. 	A request 	for 	an 	extension 	must 	be 	filed 	at
least 	three 	(3) 	calendar 	days 	before 	the 	expiration 	of 	the 	time
required 	for 	filing 	the 	subject 	document. 	The 	request 	must
indicate 	good 	cause 	for 	the 	position of 	each 	other 	party
regarding 	the 	extension 	and 	shall 	be 	accompanied 	by 	proof 	of
service 	of 	the 	request 	upon 	each 	party 	(section 	32132).

LA-CE-1972
June 	13, 	1984
Page 	6
Final 	Date
If 	no 	appeal 	is 	filed 	within 	the 	specified 	time 	limits, 	the
dismissal will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Very 	truly 	yours,
Dennis 	Sullivan
General 	Counsel
'771 ·~fl1. 	/7,/~ ~ ~
Manuel 	M. 	Melgoza
Regional Attorney
MMM:djm