Barstow Unified School District (PERB 1138EB)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	BARSTOW
CHAPTER 	#306,
Charging 	Party,
v.
BARSTOW UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3396
Request 	for Reconsideration
PERB 	Decision 	No. 	113 	8
PERB Decision No. 113 8b
March 20, 	1997
)
)
)
)
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Appearances: 	California School 	Employees Association by
William C. 	Heath, 	Attorney, 	for California School Employees
Association and its Barstow Chapter #3 06; 	Atkinson, 	Andelson,
Loya, 	Ruud & Romo by Ronald C. 	Ruud, 	Attorney, 	for Barstow
Unified School 	District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	after the Board
granted 	the 	California 	School 	Employees 	Association 	and 	its
Barstow Chapter #306's 	(CSEA) 	request 	for reconsideration of
Barstow Unified School District 	(1996) 	PERB Decision No. 	1138.
In that decision, 	the Board found that, 	pursuant 	to a collective
bargaining agreement 	(CBA) 	provision allowing 	the 	Barstow Unified
School 	District 	(District) 	to 	contract 	out work 	"which may
lawfully be 	contracted 	for," 	the District 	did not violate
section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment

Relations Act 	(EERA)1 by refusing 	to negotiate with CSEA and
unilaterally 	contracting 	out 	pupil 	transportation 	and vehicle
maintenance 	services. 	The 	Board granted 	reconsideration 	solely
to 	determine 	whether 	the 	District's 	action was 	lawful 	under 	the
Education Code and, 	therefore, 	under the EERA.
After a 	review of 	the 	entire 	record, 	including 	the 	Board's
previous 	decision and the 	subsequent 	filings 	of 	the parties, 	the
Board 	concludes 	that 	the District's 	contracting 	out 	of 	pupil
transportation 	and vehicle 	maintenance 	services 	was 	lawful 	under
the 	Education Code. 	Therefore, 	the District 	did not violate 	EERA
section 3543.5(a), 	(b) 	and 	(c) 	when it took that action.
FACTUAL 	BACKGROUND
Neither party disputes 	the 	Board's 	factual 	findings 	in
Barstow Unified School District, 	supra. 	PERB Decision No. 	113 8.
1EERA 	is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
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
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.
2
---------------· --·
2

Briefly restated, 	the District 	and CSEA's 	CBA included a
provision giving 	the District 	the 	"exclusive 	right" 	to 	"contract
out work, 	which may lawfully be contracted for 	. 	. 	. 	." 	At 	its
May 4, 	1993 meeting, 	the District's board of 	trustees voted to
contract with Mayflower Contract Services, 	Inc. 	(Mayflower) 	for
all 	student 	transportation and vehicle maintenance 	services.
On May 6, 	1993, 	Jack Ashley 	(Ashley), 	the CSEA labor
relations 	representative, 	demanded that 	the District 	negotiate
the contracting out decision and its effects. 	On May 12, 	1993,
Robert Myers 	(Myers), 	the District's chief negotiator and
assistant 	superintendent, 	replied 	that 	the 	CBA authorized 	the
District 	to 	contract 	for services without bargaining. 	On May 16,
1993, 	Myers 	reiterated that 	the 	CBA authorized the District 	to
unilaterally 	contract 	out 	services 	and offered 	to 	negotiate 	the
"effects 	of 	layoff."
On May 18, 	1993, 	the District's board of 	trustees voted to
lay off 	28 	bargaining unit 	transportation employees 	effective
June 30, 	1993. 	On May 24, 	1993, 	Ashley requested a meeting to
negotiate the effects 	of 	the proposed layoffs. 	On June 3, 	1993,
CSEA and 	the District met. 	At 	the meeting, 	CSEA again demanded
that 	the District 	negotiate 	the 	decision 	to 	contract 	out
transportation services. 	The District 	stated that 	the CBA
allowed 	contracting 	out 	and 	that 	it 	would only negotiate 	the
effects 	of 	the decision.
On June 11, 	1993, 	the District's board of trustees reviewed
and approved 	the Mayflower 	contract. 	On approximately June 	11,
33

1993, 	the District entered into a July 1, 	1993 	to June 30, 	1996,
contract 	with Mayflower 	to provide pupil 	transportation and
vehicle maintenance 	services.
On approximately June 2, 	1993, 	the District 	issued layoff
notices 	to all 	affected transportation employees, 	effective
July 5, 	1993. 	Some employees moved into other bargaining unit
positions 	at 	reduced salaries. 	Others 	took positions with
Mayflower.
PROCEDURAL 	HISTORY
CSEA filed an unfair practice 	charge 	against 	the District 	on
June 21, 	1993, 	and an amended charge on January 13, 	1994. 	On
January 20, 	1994, 	PERB's General 	Counsel 	issued a complaint
alleging that the District violated EERA section 3543.5(a), 	(b)
and 	(c) 	by unilaterally 	contracting 	out 	pupil 	transportation and
vehicle maintenance 	services. 	A PERB-conducted 	settlement
conference 	failed to 	resolve 	the dispute. 	PERB held a 	formal
hearing from June 6 	to June 8, 	1994. 	In her January 12, 	1995,
proposed decision, 	the ALJ 	found 	that 	the District violated EERA
section 3543.5(a), 	(b) 	and 	(c) 	by refusing to negotiate with CSEA
and unilaterally 	contracting 	out 	pupil 	transportation 	and vehicle
maintenance 	services.
The District 	filed exceptions 	to 	the ALJ's 	proposed decision
on February 3, 	1995. 	The Board 	issued Barstow Unified School
District, 	supra, 	PERB Decision No. 	1138 on February 20, 	1996. 	In
that 	decision, 	the Board 	found that 	the District 	did not violate
EERA section 3543.5(a), 	(b) 	and 	(c) 	when it refused to negotiate
44

with 	CSEA and unilaterally 	contracted 	out 	pupil 	transportation
and vehicle maintenance 	services. 	The Board held 	that 	the 	terms
of 	the parties' 	CBA provided a 	clear and unmistakable waiver of
the union's 	right 	to negotiate 	the decision to 	contract 	out
transportation services. 	The Board did not 	address 	the question
of 	whether 	the District's 	action was 	lawful 	under 	the 	Education
Code, 	which the parties were pursuing in separate legal 	action.
On March 3, 	1994, 	the Superior Court 	for the County of
San Bernardino granted 	the petition 	for Writ 	of Mandate 	filed by
the 	Barstow Unified 	School 	District 	Personnel 	Commission
(Commission) 	against the District, 	the District's board of
trustees, 	and Mayflower. 	The court entered judgment 	for the
Commission and CSEA on March 11, 	1994, 	finding that 	the board of
trustee's 	decision 	to 	contract 	out 	pupil 	transportation 	services
violated Education Code 	sections 	45260, 	45261 	and 45256. 	The
District and Mayflower filed notices of appeal 	on March 23, 	1994.
On March 18, 	1996, 	the Fourth District Court of Appeal 	issued its
decision. 	(Personnel 	Commission of 	Barstow Unified School 	Dist.
v. 	Barstow Unified School Dist. 	(1996) 	43 	Cal.App.4th 871
[50 	Cal.Rptr.2d 	797].) 	The 	court 	ruled that 	the 	Commission
lacked standing 	to 	challenge 	the Mayflower 	contract 	and 	that 	CSEA
failed 	to 	exhaust 	its 	PERB administrative 	remedies 	before
proceeding 	to 	court. 	The 	court 	remanded 	the matter to 	the
Superior 	Court 	with 	the 	direction 	to 	stay 	the proceedings 	pending
a 	full 	resolution of 	the 	PERB unfair practice 	charges.
Based on the 	court's decision, 	the Board granted CSEA's
55

request 	for 	reconsideration 	in Barstow Unified School 	District
(1996) 	PERB Decision No. 	1138a. 	The Board granted
reconsideration 	solely 	to 	determine whether 	the District's 	June
1993 	contracting out 	of pupil 	transportation and vehicle
maintenance 	services was 	lawful under the Education Code, 	and
directed 	the parties 	to 	submit 	briefs 	on this 	issue.
CSEA'S 	BRIEF
CSEA describes 	a 	conflict 	between 	Education 	Code
section 	39800 	and 	the merit 	system classified 	service 	provisions
of 	the Education Code. 	Education Code 	section 39800 	allows 	a
District 	to provide pupil 	transportation services 	and 	contract
with private parties 	for 	that 	transportation.2 Education Code
section 45240 	et 	seq. 	establishes 	a merit 	school 	district
personnel 	system for 	classified employees 	that 	is 	similar 	to a
civil 	service 	system. 	The District 	adopted 	the merit 	system in
1967. 	Education Code 	section 45241 	requires merit 	system school
districts 	to 	control 	the 	services 	of noncertificated employees 	in
2The 	relevant 	portion of 	Education Code 	section 	39800
provides:
The 	governing board 	of 	any 	school 	district
may provide 	for the 	transportation of pupils
to 	and 	from school 	whenever 	in 	the 	judgment
of 	the board such 	transportation 	is 	advisable
and good reasons 	exist 	therefor. 	The
governing board 	. 	. 	. 	may contract with and
pay responsible private parties 	for 	the
transportation.
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accordance 	with 	that 	system.3 Education 	Code 	section 	45256
limits 	exemptions 	from the 	classified 	service 	in a merit 	district
to 	an 	enumerated 	list.4
3 Education Code 	section 45241 provides, 	in part:
In 	any 	district 	in which 	the 	procedure 	set
forth 	in 	this 	article 	has 	been 	incorporated
the governing board shall 	employ, 	pay, 	and
otherwise 	control 	the 	services 	of 	persons 	in
positions 	not 	requiring 	certification
qualifications 	only 	in 	accordance 	with 	the
provisions 	of 	this 	article.
4Education Code 	section 45256 provides, 	in part:
(a) 	The 	commission shall 	classify all
employees 	and positions 	within 	the
jurisdiction 	of 	the 	governing 	board 	or 	of 	the
commission, 	except 	those which are 	exempt
from the 	classified 	service, 	as 	specified 	in
subdivision 	(b). 	The employees and positions
shall 	be 	known as 	the 	classified 	service.
'To classify' 	shall 	include, 	but not be
limited 	to, 	allocating positions 	to
appropriate 	classes, 	arranging 	classes 	into
occupational 	hierarchies, 	determining
reasonable 	relationships 	within 	occupational
hierarchies, 	and preparing written 	class
specifications.
(b) 	Exempt 	from classified 	service are 	the
following:
(1) 	Positions which require 	certification
qualifications.
(2) 	Part-time playground positions.
(3) 	Full-time 	students 	employed part 	time.
(4) 	Part-time 	students 	employed part 	time 	in
any 	college 	work-study program, 	or 	in a 	work
experience 	education 	program 	conducted 	by 	a
community 	college 	district 	pursuant 	to
Article 	7 	(commencing with Section 51760) 	of
Chapter 	5 	of 	Part 	28 	and which 	is 	financed by
state 	or 	federal 	funds.
77

CSEA points 	to 	the appellate 	court 	decisions 	that
distinguish 	the 	authority 	of merit 	and nonmerit 	districts 	to
contract 	out 	services. 	Merit 	districts 	are 	subject 	to 	statutory
provisions 	and 	language 	expressly 	limiting 	their ability 	to use
services 	of 	individuals who are not 	classified employees.
(California State Employees Assn. 	v. 	Kern Community College Dist.
(1996) 	41 Cal.App.4th 1003 	[48 	Cal.Rptr.2d 889].) 	The merit
system statutory 	scheme protects 	classified public 	school 	workers
and 	imposes 	an obligation 	the District 	cannot 	avoid by 	the use 	of
contracts. 	(California State Employees Assn. 	v. 	Del Norte County
Unified Sch. 	Dist. 	(1992) 	2 Cal.App.4th 1396 	[4 Cal.Rptr.2d 35].)
Since 	the District 	is 	a merit 	district 	and Education 	Code
section 	45256 	does 	not 	list 	transportation workers 	as 	an
exemption to 	the 	classified service 	requirement, 	the District
cannot 	contract 	out 	transportation 	services 	and must 	use
classified employees 	to perform that 	service.
CSEA provides 	several 	statutory 	interpretation arguments 	to
demonstrate 	that 	the 	Legislature 	never 	intended 	Education 	Code
(5) Apprentice positions.
(6) 	Positions 	established for the employment
of professional 	experts 	on a 	temporary basis
for a 	specific project 	by 	the 	governing board
or by 	the 	commission when 	so 	designated by
the 	commission.
No person whose 	contribution 	consists 	solely
in the 	rendition of 	individual personal
services 	and whose 	employment 	does 	not 	come
within 	the 	scope 	of 	the 	exceptions 	listed
above 	shall 	be 	employed outside 	the
classified 	service.
8

section 	39800 	to apply to merit 	system school 	districts.
Education Code 	section 	45256 	specifies 	an all 	inclusive 	listing
of 	exemptions 	from the merit 	system classified 	service
requirement. 	When exceptions 	to a general 	rule are 	specified by
statute, 	other exceptions 	are not 	to be 	implied or presumed. 	(In
Re Michael G 	(1988) 	44 Cal.3d 283, 	291 	[243 	Cal.Rptr. 	224].)
Therefore, 	PERB 	cannot 	infer a 	transportation worker exemption
from the merit 	system classified 	service 	requirement.
The 	Legislature 	first 	enacted 	Education Code 	section 	39800
in 1917 	and section 45256 	in 1935. 	The Legislature 	recodified
section 39800 	in 	1976 and 	left 	the 	section unchanged. 	The
Legislature 	last amended section 45256 	in 1984. 	Where 	two
statutes 	on the 	same 	subject 	cannot be 	reconciled, 	the 	latest
legislative expression is 	controlling. 	(City of 	Petaluma v. 	Pac.
Tel. 	& Tel. 	Co. 	(1955) 	44 Cal.2d 284, 	288 	[282 P.2d 43].) 	Since
the 	Legislature 	enacted and amended section 45256 	last, 	that
section controls.
CSEA asserts 	that 	Education Code 	section 39800 	is 	a general
provision applicable 	to all 	school 	districts, 	but 	section 45256
prevails 	as 	specifically applicable 	only 	to merit 	districts.
When the 	specific 	statute 	is 	later than a previous 	general
statute, 	the 	specific 	statute will 	be 	regarded as 	a qualification
to the general 	one. 	(Estate of Compton 	(1962) 	202 	Cal.App.2d 94
[20 Cal.Rptr. 	589].) 	Even if section 45256 	is a general 	statute,
a 	later general 	statute 	does 	not 	disturb a previous 	specific
statute unless 	it 	is 	repealed by general 	words 	or by necessary
99

implication. 	(Id. 	at p. 	98.) 	Section 39800 allows 	"any school
district" 	to 	contract with a private 	party 	for 	transportation
services. 	CSEA asserts 	that 	the enactment 	of 	the merit 	system,
and the 	1947 	and 	1984 amendments 	to 	section 45256 	expressly
limiting 	the 	classified 	service 	exemptions 	to 	those 	listed 	in the
statute, 	necessarily imply a repeal 	of 	the word 	"any" 	in
section 39800. 	This 	interpretation limits 	the application of
section 39800 	to nonmerit 	districts.
CSEA asserts 	that 	public 	policy 	considerations 	require
restrictions 	on 	the 	District's 	authority 	to 	contract 	out
classified employee work 	in a merit 	district. 	The purpose 	of 	the
merit 	district 	statutory 	scheme 	is 	to 	induce 	competent 	people 	to
enter and remain 	in public 	employment. 	(California School
Employees Assn. 	v. 	Compton Unified School Dist. 	(1985)
- -
165 	Cal.App.3d 	694 	[211 	Cal.Rptr. 	653].) 	A comprehensive
statutory 	scheme mandating 	and protecting 	employment 	in public
service 	carries 	an 	implied prohibition on 	contracting 	out. 	The
Legislature balanced 	the needs 	of 	school 	districts 	against 	the
public policy of 	attracting 	competent 	people 	to public 	service.
The 	Legislature 	addressed 	the needs 	of 	school 	districts 	by
providing 	listed 	exemptions 	to 	the 	classified 	service
requirement. 	The District's 	decision to 	contract 	out
transportation 	services 	ignores 	the 	Legislature's 	careful
balancing 	and 	contravenes 	the 	public 	policy 	considerations
underlying 	the 	establishment 	of 	the merit 	system.
10

DISTRICT'S 	BRIEF
The District maintains 	that 	Education 	Code 	section 	39800
expressly authorizes 	the Mayflower contract. 	School 	districts
may 	contract 	for 	services 	authorized by 	statute. 	The 	Legislature
made 	transportation 	services 	the proper subject 	of 	a 	contract.
(California Sch. 	Employees Assn. 	v. 	Willits Unified Sch. 	Dist.
(1966) 	243 	Cal.App.2d 776 	[52 Cal.Rptr. 	765].)
The District 	distinguishes 	this 	case 	from the appellate
court merit/nonmerit 	district 	decisions 	cited by CSEA. 	No
published decisions 	address 	the 	legality of 	contracting 	out
transportation services, 	or any other service which 	is 	expressly
authorized by a 	statute 	other 	than 	Education Code 	section 	45256,
in a merit 	district. 	Education Code 	section 39800 	expressly
authorizes 	the 	contracting out 	of 	transportation services. 	No
court 	has 	invalidated a 	contract 	for 	services 	when express
statutory authority 	to 	enter a 	contract 	existed.
The District 	argues 	that 	the 	rules 	of 	statutory 	construction
support 	the validity of 	the 	contract. 	A strong presumption
exists 	against 	repeals 	by 	implication. 	A reviewing 	court must
maintain the 	integrity of both 	statutes unless 	the acts 	are 	so
inconsistent 	there 	is 	no possibility 	of 	concurrent 	operation.
(Sacramento Newspaper Guild v. 	Sacramento County Bd. 	of 	Suprs.
(1968) 	263 	Cal.App.2d 41 	[69 Cal.Rptr. 	480].) 	The purpose of
Education Code 	section 39800 	is 	to authorize any school 	district
to 	contract 	out 	transportation services. 	Education Code
section 80, 	written after section 45256, 	defines 	"any school
11

district" 	as districts 	of 	every kind or class. 	Education Code
section 45256 	pertains 	to 	classified 	service employment 	and
positions. 	It 	contains no reference 	to 	contracting out,
transportation services, 	or non-employees. 	Each provision may be
read 	together 	to 	give 	full 	meaning 	to 	the 	required 	classification
of 	district 	employees while 	retaining a district's 	authority 	to
utilize 	a 	third party to provide 	transportation services.
Under this 	reading, 	section 45256 	and section 39800 	do not
conflict. 	Even if the two statutes did conflict, 	the more
specific 	section dealing 	with 	transportation services,
section 39800, 	prevails 	over the general 	classified employment
section 45256. 	(Code Civ. 	Proc. 	sec. 	1859; 	People v. 	Tanner
(1979) 	24 Cal.3d 514, 	521 	[156 Cal. 	Rptr. 	450].) 	If the adoption
of 	a merit 	system nullifies 	the 	right 	to 	contract 	out 	for student
transportation, 	then 	it must 	nullify all 	other governing board
rights 	to 	contract 	out 	services 	that are 	contained 	in Education
Code 	sections 	other 	than section 45256.
The 	District 	also asserts 	that 	public policy 	considerations
support 	upholding 	the Mayflower 	contract. 	A strong public policy
exists 	to give 	governing boards 	discretion 	over whether or not 	to
provide nonessential 	student 	transportation services. 	(Arcadia
Unified School Dist. v. 	State Dept. 	of Education 	(1992)
2 	Cal.4th 251, 	264 	[5 Cal.Rptr.2d 545].) 	Governing boards are
also 	given broad discretion 	to 	reduce 	or 	eliminate 	classified
services, 	including transportation. 	(Ed. 	Code sec. 	45308;
California Sch. 	Employees Assn. 	v. 	Pasadena Unified Sch. 	Dist.
12

(1977) 	71 Cal.App.3d 318 	[139 	Cal.Rptr. 	633].) 	Public policy
considerations 	do not mandate 	that 	public 	schools 	employ more bus
drivers, 	but 	that 	they spend more money on education-related
expenditures. 	Depriving 	the District 	of 	its 	specific 	statutory
authority 	to 	contract 	out 	transportation 	services 	flies 	in 	the
face 	of 	these 	fundamental 	policy considerations.
DISCUSSION
As 	the 	expert 	administrative 	agency 	established by 	the
Legislature 	to administer 	collective bargaining 	in California's
public 	education systems, 	PERB has 	exclusive 	initial 	jurisdiction
over conduct 	that arguably violates EERA. 	(EERA sec. 	3541.5;
San Diego Teachers Assn. 	v. 	Superior Court 	(1979) 	24 	Cal.3d 1
[154 Cal.Rptr. 	893]; 	El Rancho Unified School Dist. v. 	National
Education Assn. 	(1983) 	33 Cal.3d 946 	[192 Cal.Rptr. 	123];
San Jose Teachers Assn. 	v. 	Superior Court 	(1985) 	38 	Cal.3d 839
[215 Cal.Rptr. 	250] 	vac. 	on other grounds 475 U.S. 	1063.)5 While
PERB may not 	enforce 	the Education Code, 	the Board may interpret
the 	Education Code 	to 	carry out 	its 	duty to administer EERA.
(San Bernardino City Unified School 	District 	(1989) 	PERB Decision
No. 	723; 	Whisman Elementary School District 	(1991) 	PERB Decision
No. 	868.) 	When unlawful 	conduct allegedly violates both the
Education Code 	and EERA, 	the 	Board may determine whether 	the
5The 	San Diego decision 	requires 	a party to 	exhaust
administrative remedies at 	PERB when: 	(1) 	the conduct 	complained
of 	could arguably violate EERA; 	(2) 	PERB may furnish relief
equivalent 	to that available 	in court; 	and 	(3) 	PERB has exclusive
initial 	jurisdiction 	over 	remedies 	for 	conduct 	arguably violating
EERA. 	(See San Diego Teachers Assn. 	v. 	Superior Court, 	supra.
24 	Cal.3d 	1.)
13

action 	constitutes 	an unfair practice. 	(Oxnard School 	District
(1988) 	PERB Decision No. 	667.) 	Accordingly, 	in this case, 	PERB's
exclusive 	initial 	jurisdiction requires 	it 	to decide whether the
the 	Education Code prohibits 	the District's 	contracting out 	of
pupil 	transportation services and, 	hence, 	whether an EERA
violation 	occurred.
In 1976, 	the Legislature adopted the permissive Education
Code. 	Education Code 	section 35160 	allows 	the governing board of
any school 	district 	to act 	in any manner that 	is 	not 	"in 	conflict
with or inconsistent with, 	or preempted by, 	any law 	. 	. 	. 	." 	The
Legislature 	intended 	the 	general 	authority of 	Education Code
section 35160 	to allow school 	districts 	to 	enter 	into any
contract 	not 	prohibited by 	law.
The 	Education 	Code 	specifically authorizes 	pupil
transportation contracts. 	Education Code 	section 39800 	expressly
provides 	that 	any school 	district may provide pupil
transportation services, 	and 	"may contract with and pay
responsible private parties" 	to provide 	those 	services.
Education Code 	section 80 	defines 	"any school 	district" 	as
districts 	of 	every kind or class.
In addition, 	the Education Code allows a district 	to adopt 	a
merit 	system to govern its 	classified service. 	The District
adopted 	the merit 	system in 	1967. 	Education Code 	section 45241
requires merit 	system school 	districts 	to 	"employ, 	pay, 	and
otherwise 	control" 	the services 	of persons 	in classified
positions 	only 	in accordance with merit 	system provisions.
14

Section 	45256 	lists 	the merit 	district 	exemptions 	from the
classified service. 	This 	section does 	not 	include 	transportation
workers 	as 	one of 	the enumerated exemptions. 	Section 45256
concludes 	that 	"no person whose 	contribution consists 	solely 	in
the 	rendition of 	individual 	personal 	services 	and whose
employment 	does 	not 	come within the 	scope 	of 	the 	exceptions
listed above 	shall 	be 	employed 	outside 	the 	classified 	service."
The 	appellate 	courts 	have 	found 	that 	the 	Legislature
intended 	to make 	a 	clear distinction between merit 	and nonmerit
districts when 	it 	enacted these 	Education Code provisions.
Unlike nonmerit districts, 	merit districts are 	subject 	to
statutory provisions 	and 	language 	expressly 	limiting 	their
ability to use 	the 	services 	of 	employees 	who are not 	classified
employees.6 (Service Employees 	Internat. 	Union v. 	Board of
Trustees, 	supra. 	47 Cal.App.4th 1661; 	California State Employees
Assn. 	v. 	Kern Community College Dist., 	supra. 	41 Cal.App.4th
1003.) 	The 	limiting language 	in the merit district provisions
mandates 	that 	all 	noncertificated persons 	employed by merit
school districts, 	and not 	specifically exempted, 	must be part of
the 	classified service. 	(California State Employees Assn. 	v.
Del Norte County Unified Sch. 	Dist., 	supra, 	2 Cal.App.4th at
1403.)
CSEA interprets 	the 	Kern and Del 	Norte 	decisions 	as
6In nonmerit districts, 	the broad powers of 	the permissive
Education Code 	allow 	the 	district 	to 	contract 	out 	services 	beyond
Education Code 	section 45256's 	listed exemptions. 	(Service
Employees 	Internat. 	Union v. 	Board of Trustees 	(1996)
47 	Cal.App.4th 1661 	[55 	Cal.Rptr.2d 484].)
15

restricting merit districts' 	ability to contract 	out 	to the
exemptions 	listed in Education Code 	section 45256. 	This
interpretation overbroadly characterizes 	the courts' 	rulings 	in
these cases.
In California State Employees Assn. 	v. 	Del Norte County
Unified Sch. 	Dist., 	supra, 	2 Cal.App.4th 1396, 	a merit district
contracted 	out 	supervision 	of 	maintenance 	and 	custodial
employees, 	a function that does not 	fall within section 45256's
listed exemptions. 	The 	court 	also 	reviewed Government 	Code
section 53060, 	which allows districts 	to 	contract 	for 	"district
special 	services and advice in financial, 	economic, 	accounting,
engineering, 	legal 	or administrative matters." 	Since neither
that provision, 	or Education Code section 45256, 	specifically
authorized merit 	districts 	to 	contract 	out 	the 	supervision of
custodial 	employees, 	the 	court 	concluded that 	the 	classified
service 	requirements 	of 	the 	Education Code prohibited 	the merit
district 	from contracting 	out 	this 	service 	and 	invalidated 	the
contract. 	(Id. 	at 1403.) 	Interestingly, 	the court's
consideration of 	Government 	Code 	section 53060 	suggests 	that 	the
statutory authority 	to 	contract 	out 	work 	in a merit 	district may
not 	be 	limited 	to 	Education 	Code 	section 45256's 	listed
exemptions 	to 	the 	classified service.
In California State Employees Assn. 	v. 	Kern Community
College Dist.. 	supra. 	41 Cal.App.4th 1003, 	a nonmerit community
college district 	contracted out 	its groundskeeping services. 	The
court 	noted 	that 	nonmerit 	districts 	are not 	subject 	to 	the
16

Education Code's 	limiting 	language 	that 	requires 	merit 	districts
to 	"employ, 	pay and otherwise 	control" 	services 	"only in
accordance with the provisions 	of 	this Article." 	Therefore, 	the
Education 	Code 	does 	not mandate 	that 	all 	noncertificated persons
employed by a nonmerit 	district be 	classified employees. 	Since
the 	Education 	Code 	did not 	prohibit 	the District 	from contracting
out groundskeeping, 	the court upheld the 	contract under the
general 	permissive 	Education Code 	authority of 	section 35160.
Neither of 	these 	cases 	addresses 	the 	circumstances present
in the 	case at 	bar. 	Pupil 	transportation and vehicle maintenance
services 	do not 	fall 	within the merit 	district 	exemptions 	to 	the
classified service 	listed 	in Education Code 	section 45256.
However, 	Education Code 	section 39800 	expressly authorizes 	any
school 	district 	to 	contract 	with private parties 	for
transportation. 	While 	the 	cited cases 	involve 	the question of
contracting out 	services by a school 	district, 	they differ from
the 	instant 	case 	in 	that 	they do not 	involve 	contracting out 	in a
merit 	district 	pursuant 	to 	a 	specific 	statutory authorization
included 	in a 	section other 	than Education Code 	section 45256.
As 	a 	result, 	the Board must 	interpret 	Education Code
sections 	39800 	and 45256 	to ascertain 	the 	legislative 	intent 	and
carry out 	the Board's 	duty to administer 	the EERA. 	The Board is
guided by 	several 	fundamental 	principles 	in 	interpreting 	the
language of these provisions. 	First, 	if 	the language is not
ambiguous, 	then the plain meaning of 	the 	language 	shall 	govern
its 	interpretation. 	(Lennane v. 	Franchise Tax Bd. 	(1994)
17

9 	Cal.4th 263 	[36 	Cal.Rptr.2d 563].) 	Second, 	interpretations
that 	render a 	term mere 	surplusage 	should be avoided, 	and every
word should be 	given 	significance, 	leaving no part useless 	or
devoid of meaning. 	(City and County of 	San Francisco v. 	Farrell
(1982) 	32 Cal.3d 47 	[184 Cal.Rptr. 	713].) 	Third, 	repeals by
implication are 	not 	favored and will 	not be 	found 	if 	statutes 	can
be harmonized on any rational 	basis. 	(Metropolitan Water Dist.
v. 	Dorff 	(1982) 	138 Cal.App.3d 388 	[188 Cal.Rptr. 	169].); 	United
Public Employees v. 	Public Employment Relations Bd. 	(1989)
213 Cal.App.3d 1119, 	1127 	[262 Cal.Rptr. 	158].)
Section 39800 	authorizes 	any school 	district 	to 	contract
with private parties 	for transportation. 	To ascertain the
legislative 	intent, 	PERB looks to the words of the statute. 	If
the 	language 	is not 	ambiguous, 	then the plain meaning of 	the
language governs. 	(Lennane v. 	Franchise Tax Bd., 	supra,
9 	Cal.4th 263.) 	Education Code 	section 	80 	defines 	"any school
district" 	as 	districts of 	every kind or class. 	The plain meaning
clearly gives any school 	district, 	including merit districts, 	the
authority 	to 	contract 	out 	transportation 	services.
CSEA argues 	that 	section 45256's 	listing of 	exemptions 	to
the merit 	district 	classified 	service 	requirement 	is 	all
inclusive, 	and effectively 	repeals 	the word 	"any" 	from the phrase
"any school 	district" 	in Section 39800. 	This 	interpretation
makes 	section 	39800's 	authorization 	to provide 	transportation
services 	applicable 	only to nonmerit 	districts. 	As noted above,
interpretations 	that 	render a 	term mere 	surplusage 	should be
18

avoided, 	and every word should be given significance, 	leaving no
part useless 	or devoid of meaning. 	(City and County of
San Francisco v. 	Farrell. 	supra. 	32 Cal.3d 47.) 	Therefore, 	an
interpretation 	of 	section 39800 	that 	repeals 	the defining 	term
"any school 	district" 	and makes 	it 	applicable 	only to nonmerit
districts 	should be 	avoided.
It 	is 	important 	to note 	that 	Education Code 	section 	39800
does more 	than merely address 	the 	authority of 	school 	districts
to 	contract 	for pupil 	transportation services. 	It gives 	any
school 	district 	the 	fundamental 	authority to provide, 	or not
provide, 	those services. 	If a district provides 	transportation
services, 	section 39800 	authorizes 	it 	to furnish them through a
variety of means, 	including: 	contracting with common carriers 	or
municipally-owned transit 	systems; 	contracting with responsible
private parties; 	and 	contracting with the parents 	or guardians 	of
pupils. 	Moreover, 	section 39800 begins a portion of 	the
Education 	Code which deals 	with 	the 	subject 	of 	transportation
services in K-12 schools. 	(Ed. 	Code, 	tit. 	2, 	div. 	3, 	pt. 	23
secs. 	39800-39860.) 	Among other things, 	its provisions authorize
school 	districts 	to 	contract 	with a 	county 	superintendent 	of
schools to provide transportation services 	(Ed. 	Code sec. 	39801);
to 	transport 	preschool 	age 	children and 	their parents 	to
preschool 	classes 	(Ed. 	Code sec. 	39820); 	and to contract for the
transportation of pupils 	to special activities 	(Ed. 	Code
sec. 	39860).
The 	legislative 	intent 	in enacting 	these 	Education Code
19

sections 	is 	clearly 	to provide 	California 	K-12 	school 	districts
with the 	option of providing transportation services, 	and with
the 	flexibility 	to utilize 	a variety 	of means 	of providing 	those
services. 	Given the vast differences 	in size, 	geography and
demography among 	the 	approximately 	one 	thousand 	K-12 	school
districts 	in California, 	the 	options 	and 	flexibility provided by
these 	sections 	are 	critical 	to 	school 	districts' 	ability to
provide pupil 	transportation services. 	For example, 	a rural
district 	serving pupils 	spread 	out 	over a 	large 	geographical 	area
may 	choose 	to 	take 	advantage 	of 	an 	existing 	service 	offered by a
common carrier, 	or join with other rural 	districts 	in the area 	in
contracting with 	the 	county 	superintendent 	of 	schools 	for
transportation services. 	Or, 	a district which operates 	its 	own
vehicles 	to provide 	transportation 	services 	for 	the 	general 	pupil
population may 	choose 	to 	contract 	with a private party
specializing 	in 	transporting pupils 	whose 	disabilities 	present
special 	transportation needs.
Pursuant 	to CSEA's argument, 	merit districts would have no
authority 	to 	contract 	for 	transportation 	services 	with 	common
carriers, 	municipally-owned transit systems, 	parents, 	or with a
private 	company 	specializing 	in 	the 	transportation 	of 	disabled
pupils. 	A merit 	district 	would also arguably be prohibited 	from
contracting with a 	county 	superintendent 	of 	schools 	to provide
transportation services, 	or with a private 	carrier 	for
transportation 	for 	special 	activities 	such as 	field 	trips 	and
athletic 	events. 	The potential 	impact 	on a merit 	district's
20

ability 	to use various means 	in providing pupil 	transportation
services 	in 	rural 	or geographically decentralized areas, 	in
meeting 	the 	specialized 	transportation needs 	of 	disabled
students, 	or 	in transporting 	students 	involved 	in special
activities, 	underscores 	the need to avoid an interpretation that
repeals 	by 	implication 	for merit 	districts 	this 	important
flexibility granted by 	the 	Education 	Code.7
Repeals 	by 	implication are 	not 	favored and will 	not 	be 	found
if 	laws 	can be harmonized on any rational 	basis. 	(Metropolitan
Water Dist, 	v. 	Dorff, 	supra, 	138 Cal.App.3d 388.) 	The Board must
consider 	the 	statute 	as 	a whole 	and harmonize 	the various
elements 	by 	considering 	each 	clause 	and 	section 	in 	context 	of 	the
overall 	statutory framework. 	(People v. 	Jenkins 	(1995)
10 	Cal.4th 234 	[40 	Cal.Rptr.2d 903].)
- -
The 	overall 	legislative 	intent 	of 	the permissive 	Education
Code 	is 	to give 	school 	districts 	the 	flexibility to act under the
general 	authority of 	Education Code 	section 35160. 	The
Legislature 	balanced a 	school 	district's 	need 	for 	flexibility
with the 	need to attract 	competent people 	to public 	service, 	and
promote 	stability and 	consistency, 	by allowing a district 	to
7The 	Board 	further notes 	that 	interpreting 	section 45256's
list 	of 	exemptions 	as 	a 	repeal 	of 	section 39800's 	authorization
to 	contract 	out 	transportation services 	in merit 	districts
suggests 	the 	repeal 	by implication of 	other Education Code
provisions. 	For example, 	Education Code section 35041.5's
expressed authority 	for 	"any 	school 	district" 	to 	contract 	for
legal 	counsel 	and Education Code 	section 	39646's 	authority 	to
contract 	for 	electronic 	data processing work would arguably be
repealed by 	implication 	for merit 	districts.
21

adopt 	a merit 	system governing 	its 	classified 	service. 	To 	ensure
that 	districts 	which 	adopted 	the merit 	system retained 	some
flexibility in the delivery of 	services, 	the Legislature provides
specific 	exceptions 	to the 	classified service 	requirement. 	Those
exceptions 	appear 	in section 45256, 	and 	in other Education Code
provisions authorizing contracts 	for specified 	services. 	Thus,
the adoption of 	the merit 	system requires 	a 	school 	district 	to
utilize 	the 	classified service 	to 	employ noncertificated persons
unless 	an exemption 	to the use 	of 	the 	classified service 	is
specifically authorized by a 	statutory provision. 	Education 	Code
section 	39800 	authorizes 	a variety 	of 	options 	for any school
district 	deciding to provide 	transportation services, 	including
contracting with a private 	party.
CSEA asserts 	that 	PERB may not 	infer additional 	merit
district 	exemptions 	to the 	classified service, 	beyond those
specified 	in section 45256, 	because when exceptions 	to a general
rule are 	specified by statute, 	other exceptions 	are not 	to be
implied or presumed. 	(In Re Michael G, 	supra. 	44 	Cal.3d 283.)
However, 	this 	rule 	is 	inapplicable 	if 	it 	contradicts a
discernable 	and 	contrary 	legislative 	intent. 	(Wildlife Alive v.
Chickering 	(1976) 	18 	Cal.3d 190 	[132 	Cal.Rptr. 	377].) 	As noted,
the 	Legislature 	clearly expressed 	the 	intent 	to permit 	a variety
of 	options 	for any school 	district 	to provide pupil
transportation 	services 	in section 39800.
CSEA also 	contends 	that 	because 	the 	Legislature 	enacted and
amended section 45256 	last, 	it preempts 	section 39800. 	While a
22

later enacted law on the 	same 	subject 	takes precedence, 	the
overriding principle 	is 	that 	repeals 	by 	implication are 	not
favored and will 	not be 	found if 	laws 	can be harmonized on any-
rational basis. 	(Metropolitan Water Dist, 	v. 	Dorff. 	supra.
138 Cal.App.3d 388.) 	Again, 	sections 	39800 and 45256 may easily
be harmonized. 	Both sections 	contain specific 	exemptions 	to 	the
merit 	district 	classified 	service 	requirement.
As 	noted above, 	while 	the Board has 	no authority to enforce
the Education Code, 	it may interpret 	it 	in carrying out 	its 	duty
to administer 	the 	EERA. 	(San Bernardino City Unified School
District, 	supra. 	PERB Decision No. 	723; 	Whisman Elementary School
District, 	supra, 	PERB Decision No. 	868.) 	When EERA and the
Education Code address 	similar subjects, 	the Board seeks an
interpretation 	that 	harmonizes 	the 	purposes 	underlying 	EERA with
the Education Code provisions. 	(San Mateo City School Dist, 	v.
Public Employment Relations Bd. 	(1983) 	33 	Cal.3d 850
[191 Cal.Rptr. 	800].) 	It is important, 	therefore, 	that the Board
harmonize 	its 	interpretation of 	the 	Education Code 	sections 	at
issue with EERA's purposes.
It 	is 	the 	fundamental purpose 	of 	EERA to provide 	for and
foster 	collective 	bargaining between 	school 	district 	employers
and their employees 	on matters within the 	scope 	of
representation. 	Among EERA's mandatory subjects 	of 	collective
bargaining 	is 	the 	employer's 	decision to 	contract 	out work 	in
order to 	reduce 	labor costs. 	(State of 	California 	(Department 	of
Personnel Administration) 	(1987) 	PERB Decision No. 	648-S; 	Arcata
23

Elementary School District 	(1996) 	PERB Decision No. 	1163.) 	Thus,
it 	is 	clear that 	the 	Legislature 	intended to provide public
school 	employers 	and 	employees 	with 	the 	right 	and obligation 	to
bargain 	in good faith over the 	subject 	of 	the 	contracting out 	of
work such as 	transportation services. 	It 	is undisputed 	in this
case 	that 	the District 	and CSEA bargained 	in good 	faith 	over 	the
subject 	of 	contracting out work.
Under Education Code 	section 39800, 	the District may
lawfully 	contract 	out 	transportation services, 	subject 	to 	the
good 	faith bargaining 	obligation mandated by 	EERA. 	The parties
fulfilled 	that 	obligation by negotiating 	over 	the 	subject 	of
contracting 	out work, 	and CSEA unmistakably agreed 	to waive 	its
right 	to 	further bargaining on this 	subject. 	(Barstow Unified
School District, 	supra. 	PERB Decision No. 	1138.) 	Therefore, 	the
purposes 	of 	both 	the 	EERA and 	the 	Education Code were 	served
through a 	good 	faith bargaining process 	that 	resulted 	in
flexibility 	for 	the District 	to provide 	transportation 	services.8
In summary, 	the District's 	refusal 	to negotiate 	its 	lawful
decision 	to 	contract 	out pupil 	transportation and vehicle
maintenance 	services was 	in keeping with the provisions 	of 	the
parties' 	CBA, 	and did not violate EERA section 3543.5(a), 	(b)
and (c).
8Conversely, 	an 	interpretation 	that 	Education 	Code
section 	39800 	applies 	only to nonmerit 	districts 	runs 	counter to
the purposes 	of 	both 	the 	Education Code 	and 	the 	EERA by denying
merit 	districts 	the 	flexibility provided by 	the 	Education Code 	in
providing 	transportation 	services, 	and by 	restricting 	the 	EERA
rights 	of merit 	districts 	and their employees 	to negotiate 	in
good 	faith over a mandatory 	subject 	of 	bargaining.
24

ORDER
The unfair practice 	charge 	and 	complaint 	in Case
No. 	LA-CE-3396 	is hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Johnson and Dyer joined 	in 	this 	Decision.
25