Riverside Unified School District (Petrich) (PERB 0522E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
TONY PETRICH.
Charging 	Party.
v.
RIVERSIDE 	UNIFIED SCHOOL DISTRICT.
Respondent.
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) 	Case 	No. 	LA-CE-2131
PERB 	Decision No. 	522
September 	24 	1985
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Appearance: 	Tony Petrich, 	on his 	own behalf.
Before Hesse, 	Chairperson; 	Jaeger, Morgenstern, 	Burt and
Porter, Members.
DECISION
This 	case 	is 	before 	the Public 	Employment 	Relations 	Board
(Board) 	on appeal 	by the Charging Party of 	the Board 	agent's
dismissal, 	attached 	hereto, 	of his 	charge 	that 	the Riverside
Unified School District violated section 3543.5(a), 	(b), 	(c)
and 	(d) 	of 	the Educational 	Employment 	Relations Act 	(Government
Code section 3540 et seq.).
We 	have 	reviewed 	the 	Board 	agent's 	dismissal 	and, 	finding
it 	free 	from prejudicial 	error, 	adopt 	it 	as 	the Decision of 	the
Board 	itself.
ORDER
The unfair 	practice 	charge 	in Case No. 	LA-CE-2131 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By 	the 	BOARD
__)

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
LOS ANGELES, CALIFORNIA 	90010
(213) 736-3127
May 16, 	1985
Tony 	Petrich
Re: 	LA-CE-2131, 	Tony 	Petrich 	v. 	Riverside USD
DISMISSAL 	OF 	UNFAIR 	PRACTICE 	CHARGE
Dear Mr. 	Petrich:
The 	above-referenced 	unfair 	practice 	charge 	filed 	on
February 	4, 	1985 	alleges 	that 	from 	1976 	to present 	the
Riverside 	Unified 	School 	District 	has 	unilaterally 	"shaved"
salary 	increases 	due 	classified 	employees 	pursuant 	to
collective 	bargaining 	agreements 	by 	issuing 	erroneously
calculated 	salary 	schedules- 	This 	conduct 	is 	alleged 	to
violate Government Code section 3543.5(a), 	(b), 	(c) and (d).
I 	indicated 	to you 	in my 	attached 	letter 	dated May 	7, 	1985 	that
certain allegations 	contained 	in 	the 	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 accordingly. 	You 	were 	further 	advised 	that 	unless you
amended 	these 	allegations 	to 	state 	a prima 	facie 	case, 	or
withdrew them prior 	to May 15, 	1985, 	they would be 	dismissed.
I have 	not 	received 	either 	a 	request 	for 	withdrawal 	or 	an
amended 	charge 	and 	am 	therefore 	dismissing 	those 	allegations
which 	fail 	to 	state 	a prima 	facie based 	on 	the 	facts 	and
reasons 	contained 	in 	my May 	7, 	1985 	letter.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulation
section 	32635 	(California Administrative Code, 	title 8, 	part
III), 	you may appeal 	the refusal 	to 	issue a complaint
(dismissal) 	to the 	Board 	itself.
Right 	to 	Appeal
You 	may 	obtain 	a 	review 	of 	this 	dismissal 	of 	the 	charge by
filing 	an 	appeal 	to 	the 	Board 	itself 	within 	twenty 	(20)
calendar 	days 	after 	service 	of 	this 	dismissal 	(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 	close of business 	(5:00 p.m.) 	on June 	5, 	1985, 	or
sent 	by 	telegraph 	or 	certified 	United 	States 	mail 	postmarked

May 16, 	1985
LA-CE-2131
Page 	2
not 	later 	than June 	5, 	1985 	(section 	32135). 	The 	Board's
address 	is:
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 	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 	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 	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
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 	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).
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
Barbara 	T. 	Stuart
Regional 	Attorney
cc: 	Charles 	Field, 	Esq.
Attachment
BTS:djm

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
LOS ANGELES CALIFORNIA 	90010
(213) 736-3127
May 	7, 	1985
Tony 	Petrich
Re: 	LA-CE-2131, 	Tony Petrich v. 	Riverside USD
Dear Mr. 	Petrich:
The 	above-referenced 	unfair 	practice 	charge 	filed 	on
February 	4, 	1985 	alleges 	that 	from 1976 	to present 	the
Riverside 	Unified 	School 	District 	has 	unilaterally 	"shaved"
salary 	increases 	due 	classified 	employees 	pursuant 	to
collective 	bargaining 	agreements 	by 	issuing 	erroneously
calculated 	salary 	schedules. 	This 	conduct 	is 	alleged 	to
violate Government Code section 3543.5(a), 	(b), 	(c) and 	(d).
Facts
Mr. 	Petrich 	is 	a gardener 	in 	the 	Riverside Unified 	School
District 	and 	has 	been 	employed 	by 	the 	District 	for
approximately 17 years. 	He 	is 	a 	member 	of 	the classified
bargaining 	unit 	exclusively 	represented 	by 	the 	California
School Employees Association, 	Chapter 506 	(CSEA).
On April 	25, 	1977, 	the District and CSEA executed, a collective
bargaining agreement 	for 	the 	years 	1976-79. 	In 	the contract
the 	District 	agreed 	to 	increase 	classified bargaining 	unit
employees 	salaries 	six percent 	for 	the 	fiscal year 	1976-77, 	six
percent 	for 	the 	fiscal year 	1977-78, 	and 	five percent 	for the
fiscal year 	1978-79. 	The 	contract 	contained 	a 	list 	of 	the
classified 	bargaining 	unit 	classifications 	and 	a 	set 	of 	salary
schedules 	for 	each 	fiscal year. 	The 	salary 	schedules 	were 	set
forth 	in 	a 	standard 	range-step 	matrix 	with 	vertical
differentials 	of 	approximately 	two 	and 	one—half 	percent 	for
ranges 	2 	through 	80 	and horizontal 	differentials 	of 	five
percent 	for 	each of 	five 	steps. 	Ranges 	2 	through 	13 	and 	55
through 	80 	pertained 	to 	classifications 	not 	included 	in 	the
bargaining unit. 	Range 	14, 	step 	1 pertained to the 	lowest-paid
classification 	in 	the 	unit, 	Food 	Services 	I. 	The 	salary
increases 	for 	1976-77 	were 	calculated based 	on 	the 	the 	salary
schedule 	which had 	been 	in 	effect 	for 	the 	year 	1975-76.

May 7, 	1985
LA-CE-2131
Page 	2
The 	past 	practice 	regarding 	new 	salary 	schedule 	construction
was 	to 	apply 	the 	negotiated percentage 	increase 	to 	a 	"base"
range/step 	on 	the 	salary 	schedule 	and 	maintain 	the 	existing
differentials 	throughout 	the 	remainder of 	the 	schedule. 	The
practice before 	1976-77 	is 	uncertain, 	but 	at 	least 	beginning 	in
1976-77 	the 	District's 	practice 	was 	to utilize 	the 	lowest
range/step on 	the 	salary 	schedule 	(range 	2, 	step 	1) 	as 	the base
to 	begin 	calculations 	rather 	than 	the 	lowest 	range/step
included in the bargaining unit 	(range 14, 	step 1 ) .
Additionally, 	the 	1976-77 	calculations 	were based 	upon the
1975-76 	salary 	schedule 	which did 	not have 	full 	two 	and
one-half percent 	or 	five 	percent 	differentials 	between 	the
ranges 	and 	steps 	respectively.
Every year 	after 	1976-77, 	pursuant 	to agreements 	and 	addendums
covering 	the 	years 	1977-78 	through 	1984-85, 	the District has
continued 	to 	utilize 	the 	lowest 	range/step 	on 	the 	salary
schedule 	rather 	than 	the 	lowest 	bargaining 	unit 	range/step 	as
the 	base 	for 	determining 	salary 	increases.
The 	latest 	agreement, 	executed 	within the 	last 	six months, was
dated October 	15, 	1984. 	The contract 	specified:
The 	salary 	schedule 	shall 	be 	established 	by
raising 	the 	1983-84 	salary 	schedule 	by 	1/4
of 	1%. 	Each position 	shall 	then be 	moved 	up
by two 	ranges 	(approximately 	5 % ) . 	This
adjustment 	shall be 	effective July 	1, 	1984.
The 	Charging 	Party 	states 	that, 	as 	previously since 	1976-77,
the 	1984-85 	salary 	increase 	was 	calculated 	based 	on 	the 	lowest
range/step on 	the 	salary 	schedule 	and 	not 	on 	the 	lowest
bargaining 	unit 	classification 	range/step. 	Additionally, 	he
asserts 	that 	there 	was 	no 	actual 	movement 	of 	any bargaining
unit 	classification on the 	salary schedule; 	rather, 	the 	range
numbers merely changed. 	Thus, 	the 	lowest bargaining 	unit
classification, 	Food 	Services 	I, 	was moved 	from range 	2 to
range 	4, 	so there 	are 	now three 	range/steps 	lower 	than the
first 	bargaining 	unit 	classification 	rather 	than only one.
The 	Charging 	Party 	claims 	that 	the 	effect 	on 	salaries 	and
derivative 	employer 	contributions 	such 	as 	retirement has 	been
cumulative. 	He 	asserts 	that 	beginning with 	the 	lack 	of 	full
horizontal and 	vertical 	differentials 	in 	the 	1975-76 	salary
schedule, 	plus 	the 	salary 	"shaving" 	each year due 	to
calculations 	being 	based 	on 	the 	lowest-paid 	range 	not 	in 	the
bargaining 	unit, 	the 	employees have 	lost 	a 	total 	of 	many
thousands 	of 	dollars 	in 	unpaid 	salary.

May 	7, 	1985
LA-CE-2131
Page 	3
Mr. 	Petrich 	learned 	of 	the 	foregoing 	facts 	in January 	1985 when
he 	was 	researching 	salary 	schedules 	and 	reclassifications 	in
connection 	with 	another 	unfair 	practice 	charge 	he 	had 	filed.
While he 	always 	had 	access 	to 	the 	negotiated 	agreements 	and
published 	salary 	schedules, 	he did 	not 	review 	the 	District's
calculations 	until 	this 	date.
No 	Unilateral 	Change 	Proven
PERB has held 	that 	an 	unlawful 	unilateral 	action 	is 	a per 	se
violation of 	section 	3543.5(c). 	Stockton Unified 	School
District 	(11/3/80) 	PERB Decision No. 	143. 	Established policy
may be 	embodied 	in 	the 	terras 	of 	a 	collective 	agreement, 	or
where 	the 	contract 	is 	silent 	or 	ambiguous 	as 	to a policy 	it may
be 	ascertained 	by 	examining 	past 	practice 	or 	bargaining
history. 	Grant 	Joint 	Union High School 	District 	(2/26/82) 	PERB
Decision 	No. 	196; 	Pajaro Valley Unified 	School 	District
(5/22/78) 	PERB Decision No. 	51; 	Rio Hondo Community College
District 	(12/31/82) 	PERB Decision No. 	279.
In 	the 	instant 	case, 	Mr. 	Petrich has alleged 	that 	a 	unilateral
change 	occurred 	in 	1977 pertaining 	to 	the 	calculation of 	the
1976-77 	salary 	schedule, 	but has 	failed 	to provide 	any 	facts
showing a 	different 	past 	practice before 	that 	date.
Specifically, 	the 	charge 	implies 	that prior 	to 	the 	1976-77
salary 	schedules, 	negotiated 	salary 	increases 	were 	calculated
in 	a 	manner 	other 	than 	using 	the 	lowest 	classification on 	the
salary 	schedule, 	but 	no 	facts 	indicate what procedure 	was 	in
fact 	utilized. 	The 	charge 	also contains 	the 	conclusory
allegation 	that 	past 	salary 	schedules 	had 	exact 	two 	and
one-half 	percent 	vertical 	and 	five percent 	horizontal
differentials, 	but 	no 	facts 	support 	this assertion.
Because no 	facts 	indicate 	that 	the 	District 	in 	fact
unilaterally 	changed 	the 	method 	of 	calculating 	salary 	schedules
beginning 	with 	the 	1976-77 	schedules, 	the 	charge 	fails 	to state
a 	prima 	facie 	case 	and 	should 	be 	dismissed.
Charge 	Untimely 	Filed
Even 	if 	the 	charge 	stated 	facts 	showing 	an 	unlawful 	unilateral
change, 	it 	should be 	dismissed 	because 	it 	was 	not 	timely
filed. 	A 	charging 	party must 	allege 	and 	ultimately 	establish
that 	the 	unfair 	practice 	occurred 	during 	the 	six-month period
preceding 	the 	filing 	of 	the 	charge 	with 	PERB. 	EERA 	section
3541.5(a)(1) . 	However, 	a 	charge may still be considered timely
if 	the 	alleged 	violation 	is 	a 	"continuing 	violation" 	or 	the
violation has 	been 	revived 	by 	subsequent 	unlawful 	conduct

May 	7, 	1985
LA-CE-2131
Page 	4
within 	the 	six-month 	period- 	San 	Dieguito 	Union 	High School
District 	(2/25/82) 	PERB Decision No. 	194.
In 	San 	Dieguito, 	the 	Board 	confronted 	an 	alleged 	timeliness bar
to 	an 	alleged 	unilateral 	change 	of 	working 	conditions. 	The
school 	district 	had 	instituted 	a 	new 	requirement 	that 	teachers
remain on 	campus 	during 	their 	preparation period 	unless 	they
were 	given permission 	to 	leave 	or 	sign out 	on 	a 	list provided
for 	that purpose. 	The 	union did 	not 	file 	the 	charge until 18
months 	after 	the 	change, 	but 	alleged 	the 	charge was 	timely
because 	each 	implementation 	of 	the 	unilaterally 	imposed
sign-out 	requirement 	constituted 	a 	separate 	violation. 	The
Board 	concluded 	that 	the 	charge 	was 	untimely. 	Although 	the
original 	implementation of 	the 	sign-out policy was 	unlawful, 	no
new 	change 	in 	the 	policy 	occurred 	during 	the 	six-month period.
Therefore 	no 	actionable 	violation 	occurred.
The 	San Dieguito 	rationale 	was 	followed 	by 	the 	Board 	in 	El
Dorado Union 	High 	School 	Faculty Association 	v. 	El 	Dorado Union
High School 	District 	(4/23/84) 	PERB Decision No. 	382. 	In that
case 	the 	charge 	was 	not 	filed 	until 	more 	than 	six 	months 	after
the 	school 	district 	unilaterally 	adopted 	and 	implemented 	a new
teaching 	assignment 	policy. 	The 	Board held 	the 	violation
occurred 	when 	the 	new 	policy was 	implemented 	and 	not 	each 	time
teachers 	were 	required 	to 	work 	according 	to 	the policy.
. .
Finally, 	although 	it 	is not precedential, 	because 	the facts are
so 	similar 	to 	the 	instant 	case, 	reference 	is 	made 	to the
decision 	of 	the 	Administrative 	Law 	Judge 	in American Federation
of 	State, 	County and Municipal 	Employees 	v. 	Regents 	of 	the
University of 	California 	(4/27/83) 	Decision No. 	HO-U-180-H,
7 	PERC 14138 	and 	14169. 	In that 	case, 	the University
unilaterally 	changed 	its 	method 	of 	calculating 	salary 	schedules
which 	resulted 	in 	the 	narrowing 	of 	step differentials 	over the
years 	to 	less 	than 	the 	previously 	established 	five 	percent
increments. 	This produced 	a 	cumulative negative 	effect 	on
salaries 	over 	the 	years. 	The charge was 	dismissed 	based 	on the
precedent 	of 	San 	Dieguito because 	the 	unilateral 	change 	was
made 	several 	years 	prior 	to 	the 	filing 	of 	the 	charge 	and
consistently 	followed 	thereafter.
In the 	instant 	charge, 	Mr. 	Petrich alleges 	that 	in 1976-77 the
District 	unilaterally 	and 	unlawfully began 	to 	"shave" 	the
salary 	schedules 	in 	violation 	of 	the 	negotiated 	contract
increases 	and 	that 	such 	conduct 	has 	persisted 	from 	1976-77 to
the 	present. 	Factually 	this 	case 	is 	not 	distinguishable 	from
the 	three 	cases 	cited 	above. 	The 	unilateral 	change 	was 	made 	in
1977 	and 	consistently 	followed 	thereafter 	by 	the 	District.

May 	7, 	1985
LA-CE-2131
Page 	5
Thus, 	there 	was 	no 	unlawful 	conduct 	within 	the 	six-month
statute 	of 	limitations 	period 	and 	the 	charge 	must 	be 	dismissed.
Constructive 	Notice
The 	six-month 	statute 	of 	limitations 	does 	not 	begin 	to run on
an 	alleged 	unfair 	labor 	practice 	until 	the persons 	adversely
affected are put 	on notice, 	actually or 	constructively, 	of the
unlawful conduct. 	University of 	California 	(11/23/83) 	PERB
Decision No. 	359-H, 	Local Lodge 1424 v. 	NLRB 	(1960) 	362 U.S.
411, 	45 LRRM 3212, 	at 	footnote 1 9 ) ; 	NLRB v. 	Allied Products
Corp. 	(6fh Cir. 	1980) 	629 F.2d 	1167, 	105 LRRM 2563. 	This rule
is pertinent 	to the 	instant 	case because Mr. 	Petrich 	states
that 	he 	first 	became 	aware 	of 	the 	alleged 	violations 	in January
1985 	when he 	was 	researching 	salary 	schedules 	and
reclassifications 	in 	connection with 	another 	unfair practice
charge 	he 	had 	filed.
The 	cases 	cited 	above 	reflect 	a workable 	objective 	standard 	for
determining when 	the 	limitations 	period begins 	to 	run. 	Absent
actual 	notice, 	the 	limitations period begins 	to 	run 	when the
persons 	affected have 	constructive 	notice 	of 	the 	violation.
They are 	aware 	of 	the 	events 	which manifest 	the 	change 	and
should 	reasonably be 	aware 	of 	the 	significance 	of 	the 	events.
Certainly, 	a 	rule 	should 	not 	be 	endorsed 	which 	would 	toll 	the
limitations 	period 	where 	the 	charging 	party knew 	that 	certain
events 	occurred 	but 	did 	not 	realize 	that 	these 	events
constituted 	an 	unfair 	practice.
The 	Charging 	Party's 	situation 	in 	the 	instant 	case 	involves
facts 	such 	that 	Mr. 	Petrich and 	CSEA knew or 	should have 	known
the 	District's 	policy 	in 	constructing 	salary 	schedules 	at 	the
times 	they 	were published. 	The 	negotiated 	agreement 	was
available 	for 	all 	to 	see 	each year. 	Likewise, 	the 	salary
schedules 	as 	constructed 	by 	the 	District 	were 	available 	for 	all
to 	see. 	Mr. 	Petrich 	and 	CSEA merely had 	to 	read 	these
documents 	and 	perform 	simple 	calculations 	to 	ascertain 	the
District's 	method 	of 	determining 	salaries. 	Given 	these 	facts,
it 	is 	clear 	that 	all 	interested parties had 	clear 	and
unequivocal 	notice 	of 	all 	the 	facts 	constituting 	the 	alleged
unilateral 	changes 	in 	1976-77 	and 	thereafter. 	There 	is 	no
basis 	for 	tolling 	the 	statute 	of 	limitations 	until 	January 1985
when Mr. 	Petrich 	did 	actually discover 	the 	significance 	of 	the
facts 	which he 	alleges 	constitute 	an unfair practice. 	Thus,
even 	if 	a 	unilateral 	change 	were proven, 	the 	statute 	of
limitations 	could 	not 	be 	tolled because 	all 	affected 	parties
had 	constructive 	notice 	of 	the 	District's 	actions 	at 	the 	time
they 	occurred.

May 	7, 	1985
LA-CE-2131
Page 	6
Opportunity 	to 	Amend
For 	the 	reasons 	stated 	above, 	the 	charge 	as 	presently written
does 	not 	state 	a prima 	facie 	violation of 	EERA. 	If you 	feel
that 	there 	are 	facts 	which 	would 	require 	a 	different
conclusion, 	please 	amend 	the 	charge 	accordingly. 	An amended
charge 	should 	be 	prepared 	on 	a 	standard 	PERB 	unfair 	practice
charge 	form 	and 	clearly 	labeled 	First 	Amended 	Charge, 	contain
all 	the 	facts 	and 	allegations you 	wish 	to make, 	and be 	signed
under 	penalty 	of perjury. 	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 by May 15, 	1985, 	I 	shall dismiss 	your charge. 	The
dismissal 	will 	be 	in the 	form of 	this 	letter, 	addressed 	to both
parties, 	with 	certain 	information concerning appeal 	rights
added. 	If you have 	any questions 	on how 	to proceed, 	please
call me at 	(213) 	736-3127.
Sincerely,
Barbara T. 	Stuart.
Regional 	Attorney
BTS:djm