San Bernardino City Unified School District (PERB 0723E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	SAN BERNARDINO
CHAPTER NO. 	183,
Charging 	Party,
v.
SAN BERNARDINO CITY UNIFIED SCHOOL
DISTRICT
Respondent.
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) 	Case 	No. 	LA-CE-2051
PERB 	Decision 	No. 	723
March 8, 	1989
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Appearances: 	William C. 	Heath, 	Attorney, 	for the California
School 	Employees 	Association 	and 	its 	San 	Bernardino 	Chapter
No. 	183; 	Joseph J. 	Woodford, 	Director of Employee Relations, 	for
the 	San Bernardino City Unified School 	District. 	Amicus 	Curiae:
California 	School 	Personnel 	Commissioners 	Association 	by 	James
Louie 	and Jerome S. 	Sanderson.
Before Hesse, Chairperson; 	Porter, Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the 	San
Bernardino City Unified 	School 	District 	(District) 	to 	the
attached proposed decision of 	a 	PERB 	administrative 	law 	judge
(ALJ) 	finding that it violated section 3543.5(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA)1 by refusing to
negotiate 	changes 	in the 	salary ranges 	for 	certain
classifications 	within 	an 	occupational 	grouping.
1The EERA is 	codified at Government Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	herein
are 	to 	the Government Code.
__ )

The 	Board 	finds 	the 	District's 	exceptions 	to be without
merit and affirms 	the ALJ's 	findings 	of 	fact 	and conclusions 	of
law.
. . . . .
DISCUSSION
The 	District's 	sole 	exception is 	its 	claim that PERB 	cannot
properly determine 	the matter at 	issue 	because 	it has 	no
jurisdiction to 	interpret 	the 	Education Code. 	The 	cases 	cited by
the 	District hold only that 	(1) 	PERB has 	no 	jurisdiction where 	no
unfair practice under the 	EERA has 	arguably been 	committed, 	and
(2) 	PERB is not empowered to enforce the Education Code.2 (See,
e.g., 	California School 	Employees Association v. 	Azusa 	Unified
School District 	(1984) 	152 Cal.App.3d 580.) 	However, 	PERB does
have 	exclusive 	initial 	jurisdiction to 	enforce 	the 	statutes 	it
administers, 	in this case, 	the EERA. 	(San Diego Teachers
Association v. 	Superior Court 	(1979) 	24 	Cal.3d 	1.)
Where 	the 	EERA and the 	Education Code 	address 	the 	same 	or
similar 	subjects, 	the Board properly 	seeks 	a resolution which
harmonizes 	the 	legislative 	intent 	underlying 	the 	EERA with
existing provisions 	of the 	Education Code. 	(San Mateo City
School 	District v. 	PERB 	(1983) 	33 Cal.3d 850.) 	Inherent in this
The 	District 	also argues 	that the 	salary proposal 	involved
herein 	fails 	the 	three-prong 	test 	for negotiability 	adopted 	by
the 	Board 	in Anaheim Union High School 	District 	(1981) 	PERB
Decision No. 	177 	and approved by the 	Supreme Court 	in San Mateo
City School District v. 	PERB 	(1983) 	33 Cal.3d 850. 	However, 	that
test 	is 	applied 	only to 	subjects 	not 	specifically 	enumerated 	in
EERA 	section 	3543.2 	as 	being within the 	scope 	of representation.
The 	subject of wages 	is 	specifically enumerated 	in 	section
3543.2.
22

. .' 4 .5--:4 .
process 	is 	the need to 	interpret 	the 	Education Code 	(absent 	an
antecedent 	court 	decision which provides 	the 	necessary
interpretation). 	The instant case, 	in which the ALJ interpreted
amended Education Code 	section 	45256 	to determine 	if 	the 	charging
party's 	salary proposal was 	lawfully the 	subject 	of negotiations,
is but one 	example. 	On numerous 	occasions 	PERB has 	been
compelled 	to 	interpret 	Education Code 	provisions 	in 	order 	to
carry out 	its 	statutory duty to administer the 	EERA. 	(See, 	e.g.,
Jefferson School District 	(1980) 	PERB Decision No. 	133; 	Mammoth
Unified School District 	(1983) 	PERB Decision No. 	371.) 	Further,
it 	is within an administrative 	agency's 	traditional 	authority to
interpret 	existing 	law in 	the 	course 	of 	discharging 	its 	statutory
obligations. 	(Goldin v. 	Public Utilities Commission 	(1979) 	23
Cal.3d 	638, 	Regents of the University of California v. 	PERB
(1983) 	139 Cal.App.3d 	1037.) 	Clearly, 	the Board has not exceeded
its 	jurisdiction.
The ALJ 	concluded 	that 	the 	District 	had the 	obligation 	to
negotiate 	a proposal 	to 	adjust upward the 	salary ranges 	of
certain 	classifications 	within various 	occupational 	groups 	or
"job 	families." 	He based this 	conclusion upon the decision of
the 	First 	District Court 	of Appeals 	in 	Sonoma County Board 	of
Education v. 	PERB 	(1980) 	102 	Cal.App.3d 	689 	(Sonoma) 	and upon the
rejection of 	the 	District's 	argument 	that 	a later 	amendment 	to
Education 	Code 	section 	45256 	effectively 	overruled 	the 	Court's
decision. 	Education Code 	section 45268 	states, 	in pertinent
part, 	that the 	governing board of 	a 	school 	district may not 	set
w	3

salary levels 	so 	as 	to 	"disturb the 	relationship which
compensation 	schedules 	bear to one 	another, 	as 	the relationship
has 	been 	established 	in 	the 	classification made 	by 	the
(personnel) 	commission" 	(in a district which has 	adopted a merit
system). 	In Sonoma, 	the court held, 	citing approvingly an
earlier opinion of 	the Attorney General 	[54 Ops.Cal.Atty.Gen. 	77
(1971)], 	that 	section 45268 does not limit the governing board's
authority 	to negotiate 	changes 	in 	salary differentials 	between
classifications within an occupational 	group as 	long as 	the
relative 	ranking of 	the 	classification 	as 	set by the 	personnel
commission 	remains 	undisturbed.3
"' . ..	. . . F. .
The 	Board 	agrees with the ALJ 	that 	it 	is 	clear 	that 	the 	1981
amendment 	to 	Education Code 	section 	45256 	did not 	overrule 	the
Sonoma decision. 	It 	should be noted that at the 	same 	time 	of 	the
amendment to 	section 45256, 	the 	Legislature amended 	section
45260. 	Section 45260, 	subdivision 	(a) 	now states 	(the underlined
portions reflect the language added by the 	1981 	amendment):
The commission shall prescribe, 	amend, 	and
interpret, 	subject to this article, 	such
rules 	as may be necessary to 	insure 	the
efficiency of 	the 	service 	and 	the 	selection
and retention of 	employees 	upon a basis 	of
merit and 	fitness. 	The rules 	shall 	not apply
to bargaining unit members 	if 	the 	subject
matter 	is within the 	scope 	of representation,
as defined in Section 	3543.2 	of the
Government Code, 	and is 	included in a
negotiated 	agreement 	between 	the 	governing
board and that unit. 	The rules 	shall 	be
'The 	court 	in 	Sonoma 	also 	held 	that 	salary 	changes 	may 	not
disturb 	the 	relationship 	in 	salary 	schedules 	between 	occupational
groups 	(as established by the personnel 	commission). 	(102
Cal.App.3d at p. 	702, 	fn.15.)
The
A4

binding upon the 	governing board, 	but 	shall
not restrict the 	authority of 	the 	governing
board provided pursuant 	to 	other 	sections 	of
this code.
The 	above 	amendment 	to 	section 	45260 	is 	difficult 	to 	square
with the 	District's 	assertion 	that 	the 	Legislature 	in 	1981
expanded the 	authority of personnel 	commissions. 	On the 	contrary,
the 	above 	language 	seems 	to indicate 	just the opposite. 	In any
event, 	the 	effect of 	section 45260 was never addressed by either
the 	parties 	or the ALJ and the 	Board need not 	consider 	its 	effect
in order to decide 	the present case.
ORDER
Based on the 	entire record in this 	case, 	the Public
Employment 	Relations 	Board ORDERS 	that 	the 	San Bernardino 	City
Unified School 	District 	shall:
A. 	CEASE AND DESIST FROM:
Failing to meet 	and negotiate 	in good 	faith upon request with
the 	exclusive 	representative 	of 	the 	classified 	employees
concerning wages 	and 	salaries 	paid 	to 	individual 	job
classifications, 	except 	that the 	District 	shall 	not be 	obligated
to negotiate 	proposals which would 	change 	the 	relative
relationships 	as defined under Education Code 	section 	45268, 	of
the 	individual 	job 	classifications 	as 	established 	by 	the
personnel 	commission within 	an occupational 	group 	or which would
change 	the 	relative relationships 	among occupational 	groups.
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B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO EFFECTUATE
THE 	POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT RELATIONS ACT:
Within thirty-five 	(35) 	days 	following the date 	this
Decision is 	no longer 	subject to reconsideration, 	post at all
work 	locations 	where 	notices 	to 	employees 	customarily 	are 	placed,
copies 	of 	the Notice attached as 	an Appendix hereto, 	signed by an
authorized agent 	of 	the 	employer. 	Such positing 	shall 	be
maintained 	for a period of thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall 	be 	taken to 	insure 	that this 	Notice 	is 	not
reduced in size, 	defaced, 	altered or covered by any material.
Written notification 	of 	the 	actions 	taken to 	comply with
this 	Order 	shall 	be made 	to 	the 	regional 	director of 	the 	Public
Employment Relations 	Board in accordance with his 	instructions.
Chairperson Hesse's 	concurring opinion begins 	on p. 	7.
Member Camilli's 	concurring opinion begins on p. 	10.
Member Porter's dissenting opinion begins 	on p. 	11.
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9

Hesse, 	Chairperson, 	concurring: 	I 	concur 	in the result
reached by my 	colleague but 	I 	write 	separately 	to 	set 	forth 	my
interpretation of 	this 	case, 	as 	it 	relates 	to the Education
Code 	and 	to 	the 	decision of 	the 	First 	District 	Court 	of Appeal
in 	Sonoma County Board of 	Education v. 	PERB 	(1980) 	102
Cal.App.3d 689 	(Sonoma).
Sonoma 	is 	controlling. 	The 	1981 	amendment 	to Education
Code 	section 45256 	in my view does 	not 	expand 	the 	Personnel
Commission's 	authority 	to 	establish 	appropriate 	relationships
among 	classifications 	and 	occupational 	groups 	to 	the 	extent 	of
overcoming the 	Sonom
- a holdings. 	Under 	Sonoma, 	a commission's
authority 	to 	approve 	classification 	relationships 	remains
coextensive 	with 	the 	employer's 	obligation 	to negotiate 	salary
proposals, 	even 	if 	such proposals 	arguably affect 	the
classification 	matrix. 	This 	anomaly 	in merit 	system 	school
districts 	is 	unfortunate but 	it 	is 	also 	the current 	law.
The 	1981 	amendment does 	not 	establish 	exclusive 	salary
setting authority with 	the 	Commission. 	I 	do not believe 	the
Legislature 	intended 	to vest 	"exclusive" 	authority 	in personnel
commissions 	to 	set 	and maintain 	"salary 	relationships" 	among
classifications, 	as 	argued by the Commission. 	Such 	a position
is 	not 	supported by 	the 	legislative history 	and 	would 	simply
ignore 	Education Code 	section 45268 	and 	section 45260, 	which
expressly 	recognize 	the 	coexistence 	of 	EERA and 	the 	primacy of
Government 	Code 	section 	3543.2 	over 	wages, 	an enumerated
subject 	of 	negotiation. 	Nor do 	I believe 	that by 	the passage
77

of EERA, and the continuance of the merit system, 	the
Legislature 	intended 	the 	pay matrix 	to be 	compressed 	or
collapsed by 	the 	collective bargaining 	agreements.
I 	depart 	from 	the ALJ's 	analysis 	insofar 	as he 	reasons 	that
the 	court 	in 	Sonoma 	defined 	the 	term 	classification
"relationship" 	to mean 	"rankings" 	exclusively within an
occupational 	group. 	The 	court 	determined 	that 	Education Code
section 	45268 	requires 	that 	negotiated 	salary 	adjustments 	must
comport 	with 	the 	classification 	relationships 	established by 	a
Commission within 	and 	among 	occupational 	groups. 	The 	Sonoma
court 	expressly 	stated:
We 	emphasize 	that 	the 	narrow 	restriction
imposed 	upon 	the 	Board 	under 	the 	statute
sanctioning 	relative 	salary 	changes 	within
operate 	in 	such 	a manner 	as 	not 	to disturb
the 	relationship 	in 	salary 	schedules 	as
established between 	the 	remaining
occupational groups. 	However, 	we need not
and do 	not 	decide 	the 	nature 	and 	extent 	of
changes 	which 	could possibly 	result 	in 	the
proscribed disturbance. 	. 	. 	.
(Id., 	at p. 	702, 	fn. 	15, 	emphasis added.)
Much 	of 	the 	focus 	of 	the 	case before 	us 	and 	the 	Sonoma 	case
is 	centered 	on whether 	"to classify" 	means 	to set 	rankings
within 	occupational 	groups 	and whether 	"relationship" 	means
simply 	ranking 	or 	determining 	salary 	differentials 	between
classes. 	I 	respectfully submit 	that 	the position of my 	fellow
panel 	member 	is 	a 	restatement 	of 	the 	Sonoma arguments. 	The
focus 	is misplaced.
Sonoma 	is 	no more 	than 	an attempt 	at 	accommodating
collective bargaining and 	the merit 	systems' 	jurisdiction which
8

results 	in 	a 	convoluted 	distinction between 	classification 	and
pay. 	The 	classification and pay functions 	are 	symbiotic. 	Each
function 	drives 	the 	other 	and oftentimes 	is 	of benefit 	to
each. 	Through 	classification 	changes, 	wages 	can be 	changed,
and 	through wage provision changes, 	classifications 	can be
changed. 	For example, 	the Commission has 	the exclusive
authority 	to delete 	a 	task 	or 	job 	characteristic 	or minimum
qualification which 	thus 	accelerates 	the 	salary advances 	within
the 	same 	salary range. 	Regardless 	of 	the 	District's 	action, 	by
changing 	an 	item 	in 	the 	job 	specification, 	the 	Commission 	is
capable 	of 	giving 	incumbent 	employees 	a wage 	increase.
Conversely, 	the 	District 	could 	negotiate 	educational 	incentive
pay 	for 	a particular 	class 	which would have 	the 	effect 	of
creating 	new qualifications 	and 	a 	new 	salary 	range.
Classification, 	selection, 	and assignment are part of
personnel 	administration, 	a part of management. 	Theoretically,
as 	the 	collective bargaining process 	expands, 	there will be a
corresponding contraction of 	the merit 	systems' 	role over
aspects 	of 	employment 	relationships.
For 	these 	reasons, 	I 	concur 	that 	the 	District had an
obligation 	to bargain, 	an obligation 	it did not meet.
9

Camilli, 	Member, 	concurring: 	The Board's 	findings in this
decision are 	fully 	supported by this member. 	In addition, 	it 	is
noted 	that 	the ALJ's 	proposed decision 	and discussion 	goes 	into
considerable 	detail 	regarding 	"legislative 	intent." 	Did 	the
Legislature, 	in effect, 	change EERA by amending the Education
Code 	sections 	establishing 	the 	authority 	of 	School 	District
Personnel 	Commissions?
Generally, 	when the Legislature intends 	to amend a law, 	it
does 	so, 	and does not leave 	such amendment to the
"interpretations" 	of various 	other parties. 	The 	fact that the
Legislature 	did not amend EERA, 	or 	the 	Education Code 	in a way
that 	affected 	the 	scope 	of 	representation under 	EERA at 	the 	time
it made the Education Code changes 	cited in this decision, 	is 	a
clear demonstration of the 	Legislature's 	"intent" 	to not 	change
EERA.
From this 	point, 	it 	seems 	that the provisions 	of EERA are
still 	paramount 	in describing 	and 	establishing 	the way 	a 	school
district will 	conduct 	its 	business with the 	employee
representatives. 	The 	Education Code 	provisions 	cited 	throughout
this 	case describe 	the powers 	and authorities 	and method of
handling personnel 	matters 	within 	a 	district when 	that 	district
has 	established a merit 	system/personnel 	commission. 	Any need 	to
"harmonize" 	the powers 	and authorities 	of the district 	and the
personnel 	commission can, 	and 	should be done by these 	two
parties. 	Such 	"harmonizing" 	has 	no bearing on the 	EERA
provisions 	and 	leaves 	intact 	the 	entire 	range 	of negotiable
issues 	under 	EERA.
10

Porter, 	Member, 	dissenting: 	This 	case presents the question
of whether 	the 	salary 	for 	each 	classification 	in 	the 	"classified
service" 	of a merit 	system public 	school 	district 	is 	separately
negotiable 	under 	EERA.1 The 	plurality 	opinions 	forming 	the
majority, 	believing that Sonoma County Board of 	Education v. 	PERB
(1980) 	102 Cal.App.3d 689 	(hereafter 	1980 Sonoma) 	is 	controlling
precedent on the question, 	answer in the affirmative. 	Upon
examining the 	arguments 	considered by the 	court 	in 	1980 	Sonoma,
and 	other relevant 	provisions 	of 	the 	Education 	Code 	and 	the
Government Code which were not dealt with in 	1980 	Sonoma, 	along
with 	the 	Legislature's 	post 	1980 	Sonoma 	statutory 	additions 	and
amendments with respect thereto, 	I 	am not persuaded that 	1980
Sonoma 	is 	controlling precedent2 and, 	for the reasons which
. *. .
The 	distinction must be 	kept 	in mind between 	attempting 	to
negotiate 	the 	particular 	individual 	salary 	for 	a 	classification
(or for 	several 	classifications), 	and negotiating a general
percentage 	increase 	in the 	salary 	schedules 	for all 	of 	the
classifications 	in a classified 	service.
2As 	to the doctrine of 	stare decisis 	(Auto 	Equity Sales,
Inc. 	v. 	Superior Court 	(1962) 	57 Cal.2d 450, 	455-456), prior
appellate decisions must be 	viewed 	in the 	light of 	the matters
(facts, 	law, 	issues, points and propositions) 	then raised before
the 	court and 	considered by the 	court 	in its 	opinion. 	Appellate
opinions 	are 	not 	controlling precedent 	as 	to matters 	not raised
and 	considered therein, 	nor 	are 	they 	controlling where 	the 	opinion
on 	a matter was 	rendered prior 	to 	the 	enactment 	or 	amendment 	of 	a
statute 	affecting 	such matter. 	(General 	Motors Acceptance
Corp. 	v. 	Kyle 	(1960) 	54 Cal.2d 101, 	114; 	McDowell & Craig v. 	City
of Santa Fe Springs 	(1960) 	54 Cal.2d 33, 	38; 	People v. 	Banks
(1959) 	53 Cal.2d 370, 	389; Dept. of Mental Hygiene v. 	Kirchner
(1964) 	60 Cal.2d 716, 	721; 	In re Tartar 	(1959) 	52 Cal.2d 250, 	257-
258; 	Hayes v. 	Superior Court 	(1971) 	6 Cal.3d 216, 	223-224, 	fn. 	3;
Worthley v. 	Worthley 	(1955) 	44 Cal.2d 465, 	471-472; 	Fricker v.
Uddo & Taormina 	(1957) 	48 Cal.2d 696, 	701; 	Pacific Gas & Electric
Co. 	v. 	Superior Court 	(1973) 	33 Cal.App.3d 325-326; 	Woodman v.
Ackerman (1967) 	249 Cal.App.2d 644, 	647, hg. 	den.; 	McConnell v.
Pacific Mutual Life 	Insurance Co. 	(1962) 	205 Cal.App.2d 469, 	484,
11

follow, 	my answer must be 	in the negative.
Certain provisions 	of 	the 	Education Code 	addressing 	various
aspects of wages, 	hours, 	and other terms and conditions of public
school 	employment 	existed prior to 	the 	enactment of 	EERA. 	(Stats.
1975, ch. 	961; Gov. Code, 	secs. 	3540-3549.3.)3 Such provisions
differ 	as 	between teachers 	(the 	"certificated") 	and nonteachers
(the 	"classified" 	or 	"classified service"). 	As to the 	"classified
services," 	there 	is 	a 	still 	further differentiation in the
provisions 	dependent 	upon whether 	a particular 	"classified
service" 	is or is not under a merit 	system.4
EERA provides 	that 	the public 	school 	employer 	shall 	meet 	and
negotiate with the public 	school 	employees' 	representative with
regard to matters relating to wages, 	hours 	and other terms 	and
conditions of employment. 	(Gov. 	Code, 	secs. 	3543.2 and 3543.5.)
However, 	the 	Legislature has 	conditioned the 	foregoing with 	its
prescription at 	the 	outset of 	the 	statute 	that 	"(n)othing
contained herein 	[EERA] 	shall 	be deemed to 	supersede 	other
provisions of the Education Code. 	. . . " 	(Gov. 	Code, 	sec. 	3540.)
In enacting EERA, 	the Legislature was 	fully aware 	of 	the
existing Education Code 	provisions. 	(Estate 	of McDill 	(1975)
hg. 	den.; 	Richmond Ramblers Motorcycle Club v. 	Western Title
Guaranty Co. 	(1975) 	47 Cal.App.3d 747, 	757-758; 	Harm v. 	Frasher
(1960) 	181 Cal.App.2d 405, 	416, hg. 	den.)
3See 	generally Education Code 	sections 	44000-45460 	and 	87000-
88270 	(former Ed. Code, 	secs. 	12901-13777).
4See 	generally Education Code 	sections 	45220-45320 	and 	88060-
88139 (former Ed. Code, 	secs. 	13701-12758).
12

14 Cal.3d 831, 	837-839; 	Bailey v. 	Superior Court 	(1977) 	19 Cal.3d
970, 	977, 	fn. 	10; Fuentes v. Workers' Compensation Appeals Board
(1976) 	16 Cal.3d 	1, 	7.) 	Further, 	the Legislature has been
selectively 	innovative 	in 	public 	school 	employer-employee
relations. 	(California Federation of Teachers, 	AFL-CIO v.
Oxnard Elementary Schools 	(1969) 	272 Cal.App.2d 	514, 	519-5405.)
5As 	cogently observed by 	the 	court 	in Oxnard 	in dealing with
EERA's predecessor, 	the Winton Act 	(Stats. 	1965, 	ch. 	2041; 	former
Ed. 	Code, 	secs. 	13080-13090):
Since 	the 	policy underlying Labor Code 	section
923 	had no necessary 	application 	to public
employees, 	who occupy a 	status 	in relation to
their 	employer 	different 	from 	that 	of 	their
private 	counterparts, 	separate 	and distinctive
legislative 	treatment has 	been accorded 	the
regulation of 	their employment relations. 	The
Legislature, 	acceding to the demands of public
employees 	for 	a more 	effective 	and 	substantial
voice 	in the determination of 	the terms 	and
conditions of their employment, 	has 	only
recently 	been 	confronted with 	the 	need 	to
reconcile 	those 	elements 	which differentiate
the 	position of public 	employees 	relative 	to
their employer 	from that 	of private 	employees.
In attempting to 	formulate 	statutes 	to extend
to 	public 	employees 	appropriate 	opportunities
to 	participate 	in 	determinations 	relating to
the terms 	and conditions 	of their employment,
the 	Legislature 	has 	been 	compelled 	to
reevaluate 	procedures 	such as 	collective
bargaining, 	exclusive representation, 	and
strikes which 	fulfill 	a 	traditional 	role 	in
private 	labor 	negotiations 	with respect 	to 	the
appropriateness 	of 	their 	application not 	only
to the public 	sector generally, 	but to the
wide 	variety 	of 	occupations 	and professions
encompassed within 	the 	field 	of 	public
employment.
. 	. 	. 	The California Legislature has clearly
been attempting 	to 	reconcile 	by 	selective
innovation the 	divergent 	elements 	inherent 	in
13

Therefore, 	the Legislature's placement of an express
nonsupersession prescription in EERA, 	with respect to 	Education
public 	employer-employee 	relations 	including
the 	acknowledged distinctions 	in 	the 	status
and 	obligations 	of 	public 	and private
employees, 	as well as the various occupations
and professions 	represented 	by public
employment.
. 	. 	. 	"Like its 	1961 predecessor, 	the
Winton Act was 	designed 	to 	strengthen existing
tenure, 	merit or civil 	service 	systems and
other methods 	of 	administering employer-
employee 	relations 	through the 	establishment
of 	uniform and 	orderly methods 	of
communication between 	employees 	and 	the 	public
school 	employers 	by which 	they are 	employed
"
It 	is 	generally 	acknowledged 	that essential
distinctions 	exist between 	educational 	public
agencies 	and general, 	non-educational public
agencies, 	and for this reason educational
agencies 	have 	traditionally 	received 	separate
legislative treatment. 	[Citation.] 	The
Education Code 	accordingly establishes 	a
complete 	system dealing with 	the 	credentials,
employment, tenure, leave, salaries,
dismissal, 	retirement, 	and other employee
rights 	and obligations 	applicable 	to 	public
school employees. 	([Former] 	Ed. Code, 	secs.
12901-13777; 	24201-24324.) 	This legislation,
separate 	from 	statutes 	relating to 	state,
county and 	other 	public 	agency 	employees,
differentiates 	certificated 	employees
([former] Ed. Code, 	secs. 	13101-13575.7) 	from
noncertificated employees 	([former] 	Ed. 	Code,
secs. 	13580-13756) 	in the public 	school and
junior 	college 	systems 	. . . .
(272 Cal.App.2d at 	521-529, 	emphasis 	added.)
14

Code enactments, 	is of particular 	statutory significance6 and
commands 	careful 	analysis 	when dealing with an EERA 	issue
involving 	a matter 	also 	covered by 	Education 	Code 	provisions.
The proscriptive 	intent 	of 	the 	Legislature's 	provision
in Government Code 	section 	3 540 	that Education Code provisions
are 	not 	to be 	superseded by EERA provisions--and/or 	by 	the
provisions 	of 	a memorandum of 	understanding negotiated 	under 	EERA
provisions—is 	further 	evidenced 	by 	the 	Legislature's 	subsequent
additions 	and amendments 	to EERA's 	scope 	of representation
section. 	In 	1981, 	the Legislature amended Government Code 	section
3543.2 	to add 	subdivisions 	(b) 	and 	(c) 	to provide as 	to teachers
-
for negotiations 	as 	to nondismissal 	disciplinary actions 	and as 	to
procedures 	and 	criteria 	for 	layoffs 	notwithstanding 	Education 	Code
sections 	44944 	and 44955:
(b) 	Notwithstanding Section 44944 	of 	the
Education Code, 	the public 	school employer
and the 	exclusive representative 	shall, 	upon
request of either party, 	meet and negotiate
regarding causes 	and procedures 	for
disciplinary action, 	other than dismissal,
including a 	suspension of pay 	for up to 	15
days, 	affecting certificated employees. 	If
the 	public 	school 	employer 	and the 	exclusive
representative 	do not 	reach mutual 	agreement,
then the provisions 	of Section 44944 	of 	the
"The 	established rule 	that, 	when 	statutory provisions
conflict, 	the 	last enacted provision is 	deemed to 	supersede
the 	earlier 	enactment 	(Pacific 	Legal 	Foundation v. 	California
Unemployment Insurance Appeals Board 	(1981) 	29 Cal.3d 	101, 	115;
Fuentes v. 	Workers' 	Compensation Appeals Board 	(1976) 	16 Cal.3d 	1,
7; 	City of Petaluma v. 	Pacific Telephone & Telegraph Co. 	(1955)
44 Cal.2d 284, 	288; 	Bledstein v. 	Superior Court 	(1984)
162 Cal.App.3d 152, 	160, 	hg. 	den.) 	would--in the absence of
Government 	Code 	section 	3540--call 	for 	EERA provisions 	to
supersede 	earlier 	enactments 	of 	the 	Education Code with which 	EERA
would 	interfere 	or 	conflict.
15

Education Code 	shall 	apply.
(c) 	Notwithstanding Section 	44955 	of 	the
Education Code, 	the public 	school employer
and the exclusive representative 	shall, 	upon
request of either party, 	meet 	and negotiate
regarding 	procedures 	and 	criteria 	for 	the
layoff 	of 	certificated employees 	for 	lack 	of
funds. 	If the public 	school 	employer and the
exclusive 	representative 	do not 	reach mutual
agreement, 	then the provisions of Section
44955 	of the 	Education Code 	shall 	apply.
(Stats. 	1981, 	chs. 	100 and 1093, 	as amended
by Stats. 	1983, 	ch. 	498.)
It 	is particularly significant that the Legislature, 	in
1983, 	further amended Government Code 	section 	3543.2 	as 	to 	the
negotiability 	of 	the 	salary 	schedules 	of 	certificated 	public
school 	employees. 	The 	amended 	section provides 	as 	to teachers
that, 	notwithstanding the 	salary 	schedule 	classification
procedures 	and 	restrictions 	set 	forth 	in Education 	Code 	section
450287 (which 	forbade a public 	school 	employer 	from placing
7 Education Code 	section 	45028 	prescribes:
Effective July 	1, 	1970, 	each person employed
by a 	district 	in a position requiring
certification qualifications 	except 	a
person 	employed 	in 	a 	position requiring
administrative 	or 	supervisory 	credentials,
shall 	be 	classified on 	the 	salary 	schedule
on the basis 	of 	uniform allowance 	for years 	of
training and years 	of 	experience. 	Employees
shall 	not be 	placed in different
classifications 	on the 	schedule, 	nor paid
different 	salaries, 	solely on the basis 	of the
respective 	grade 	levels 	in which 	such
employees 	serve.
In no 	case 	shall 	the 	governing board of 	a
school 	district 	draw orders 	for the 	salary of
any teacher in violation of 	this 	section, 	nor
shall 	any 	superintendent 	draw 	any requisition
for the 	salary of 	any teacher 	in violation
thereof.
16

teachers 	in differing 	salary 	schedule 	classifications 	other 	than
on the 	basis 	of 	a uniform allowance 	for years 	of 	training 	and
years of experience), 	negotiations 	for the payment of 	"additional
compensation based upon 	criteria 	other 	than years 	of 	training 	and
years of experience" 	are permitted. 	This 	section states, 	in
pertinent part:
(d) 	Notwithstanding Section 	45028 	of 	the
Education Code, 	the public 	school employer
and the 	exclusive 	representative 	shall, 	upon
the request of either party, 	meet and
negotiate 	regarding the 	payment 	of 	additional
compensation 	based 	upon 	criteria 	other 	than
years 	of training and years 	of experience. 	If
the 	public 	school 	employer 	and 	the 	exclusive
representative do not reach mutual 	agreement,
then the provisions 	of 	Section 45028 	of 	the
Education Code 	shall 	apply.
(Stats. 	1983, ch. 498.)
The 	nonsupersession as 	to 	Education Code 	provisions 	is
further 	highlighted by provisions 	contained 	in 	the 	subsequently
enacted 	sister Acts 	to 	EERA: 	the 	State 	Employer-Employee
Relations Act (SEERA - Stats. 	1977, 	ch. 	1159; 	Gov. 	Code, 	secs.
3512-3524), 	and the Higher Education Employer-Employee Relations
Act (HEERA - Stats. 	1978, ch. 	744; Gov. Code, secs. 	3560-3599).
In SEERA, 	on the 	subject of 	scope 	of representation and
negotiability of 	"wages, 	hours, 	and other terms 	and conditions
of employment" as to state employees 	(Gov. 	Code, 	sec. 	3516), 	the
This 	section 	shall 	not 	apply to 	teachers 	of
special 	day and 	evening 	classes 	in 	elementary
schools, 	teachers of 	special classes 	for
elementary pupils, 	teachers of 	special day and
evening high 	school 	classes 	and 	substitute
teachers.
17

Legislature 	has 	provided 	for 	express 	supersession 	over 	numerous
Education 	Code 	and 	Government 	Code 	statutes 	by 	prescribing 	in
Government 	Code 	section 	3517.6:
In 	any 	case 	where 	the 	provisions 	of 	section
70031 	of 	the 	Education Code, 	or 	subdivision
(h) 	of 	Section 	3513, 	or Sections 	[sic]
14876, 	18714, 	19080.5, 	19100, 	19143, 	19261,
19818.16, 	19819.1, 	19820, 	19822, 	19824, 	19826,
19827, 	19828, 	19829, 	19830, 	19831, 	19832,
19833, 	19834, 	19835, 	19836, 	19837, 	19838,
19839, 	19840, 	19841, 	19842, 	19843, 	19844,
19845, 	19846, 	19847, 	19848, 	19849, 	19849.1,
19849.4, 	19850.1, 	19850.2, 	19850.3, 	19850.4,
19850.5, 	19850.6, 	19851, 	19853, 	19854, 	19856,
19856.1, 	19858.1, 	19858.2, 	19859, 	19860,
19861, 	19862, 	19862.1, 	19863, 	19863.1, 	19864,
19866, 	19869, 	19870, 	19871, 	19871.1, 	19872,
19873, 	19874, 	19875, 	19876, 	19877, 	19877.1,
19878, 19879, 	19880, 19880. 1, 	19881, 	19882,
19883, 	19884, 	19885, 	19887, 	19887.1, 	19887.2,
19888, 	19990, 	19991, 	19991.1, 	19991.2,
19991.3, 	19991.4, 	19991.5, 	19991.6, 	19991.7,
19992, 	19992.1, 	19992.2, 	19992.3, 	19992.4,
19993, 	19994.1, 	19994.2, 	19994.3, 	19994.4.,
19995, 	19995.1, 	19995.2, 	19995.3, 	19996.1,
19996.2, 	19998, 	19998.1, 	20750.11, 	21400,
21402, 	21404, 	21405, 	22825, 	or 22825.1 are in
conflict 	with 	the 	provisions 	of 	a 	memorandum
of 	understanding, 	the 	memorandum 	of
understanding 	shall 	be 	controlling 	without
further 	legislative 	action. 	In 	any 	case 	where
the 	provisions 	of 	Section 	19997.2, 	19997.3,
19997.8, 	19997.9, 	19997.10, 	19997.11,
19997.12, 	19997.13, 	or 	19997.14 	are in
conflict 	with 	the 	provisions 	of 	a 	memorandum
of 	understanding, 	the 	terms 	of 	the 	memorandum
of 	understanding 	shall 	be 	controlling 	unless
the 	State 	Personnel 	Board 	finds 	those 	terms
to 	be 	inconsistent 	with 	merit 	employment
principles 	as 	provided 	for 	by 	Article 	VII
of 	the 	California 	Constitution. 	Where 	this
finding 	is 	made, 	the provisions 	of 	the
Government 	Code 	shall 	prevail 	until 	those
affected 	sections 	of 	the 	memorandum 	of
understanding 	are 	renegotiated 	to 	resolve
the 	inconsistency. 	If 	any provision 	of 	the
memorandum 	of 	understanding 	requires 	the
expenditure 	of 	funds, 	those 	provisions 	of 	the
memorandum 	of 	understanding 	shall 	not 	become
18
_,.
.-

effective 	unless 	approved by 	the 	Legislature
in the annual 	Budget Act. 	If any provision
of 	the memorandum 	of 	understanding requires
legislative 	action to permit 	its
implementation by 	amendment 	of 	any 	section
not cited above, 	those provisions of the
memorandum of 	understanding 	shall 	not 	become
effective 	unless 	approved by 	the 	Legislature.
(Stats. 	1977, 	ch. 	1159; 	as amended by Stats.
1978, ch. 	776, Stats. 	1979, chs. 403 and 1008,
Stats. 1980, ch. 869, Stats. 1981, ch. 230,
Stats. 	1984, ch. 89, and Stats. 	1985, ch.
1015.)
Likewise, 	in HEERA, 	on the 	subject of 	scope of representation
and negotiability of 	"wages, 	hours, 	and other terms 	and conditions
of employment" 	as to higher education employees 	(Gov. 	Code, 	sec.
3562, 	subds. 	(d), 	(q) and (r)), the Legislature has also provided
for express 	supersession over various 	Education Code, 	Government
Code, 	and Military and Veterans 	Code 	statutes 	by prescribing 	in
Government Code 	section 	3572.5:
In the 	case where 	the 	following provisions
of 	law are 	in 	conflict with a memorandum of
understanding, 	the memorandum of understand-
ing 	shall be 	controlling.
(a) 	Part 	13 	(commencing with Section 22000)
of Division 1 	of Title 1 of, 	Sections 66609,
89007, 89039, 	89500, 89501, 89502, 89503,
89504, 89505, 	89505.5, 89506, 89507, 89508,
89509, 89510, 	89512, 89513, 89514, 89515,
89516, 89517, 	89518, 89519, 89520, 89523,
89524, 89527, 	89531, 89532, 89533, 89534,
89537, 89541, 	89542, 89542.5, 89543, 89544,
89545, 89546, 	89550, 89551, 89552, 89553,
89554, 89555, 	89556, 	89700 and 89701 of, 	the
Education 	Code
(b) 	Sections 825, 825.2, 825.6, 3569.5, 6700,
11020, 	and 11021 of, 	Chapter 4 	(commencing
with Section 	18150) 	of Part 	1 	of Division 5
of Title 2 of, 	Sections 18200, 	19841, 	19848,
19850.6, 	19864, 	and 19875 of, Article 4
(commencing with 	section 	19869) 	and Article 	5
(commencing with 	Section 	19878) 	of Chapter 	2.5
19

of Part 2.6 of Division 5 of Title 2 of, 	and
Section 22825.1 	of, 	the Government Code.
(c) 	Sections 395, 	395.01, 	395.05, 	395.1 and
395.3 	of 	the Military and Veterans 	Code.
(Stats. 	1978, ch. 	744; 	as amended by Stats.
1979, ch. 1072, Stats. 1981, ch. 230, Stats.
1982, ch. 	1095, and Stats. 	1983, ch. 	1040.)
Thus, 	EERA may not 	supersede Education Code provisions, 	nor
may 	this 	Board 	sanction 	the 	negotiability 	of 	bargaining proposals
which would 	alter 	or 	conflict with Education 	Code 	provisions.
(San Mateo City School District v. 	PERB 	(1983) 	33 Cal.3d 850,
866; 	Wyqant v. 	Victor Valley Joint Union H.S. 	District 	(1985)
168 Cal.App.3d 319, 	323; 	United Steelworkers of America v.
Board 	of 	Education 	of 	Fontana 	Unified 	School 	District 	(1984)
162 Cal.App.3d 823, 	832-833, 	840, hg. 	den.; California Teachers
Association v. 	Parlier 	Unified 	School 	District 	(1984)
157 Cal.App.3d 174, 	183-184, hg. 	den.; 	California School
Employees Association v. 	Travis 	Unified School 	District 	(1984)
156 Cal.App.3d 242, 	249-250; 	Jefferson Classroom Teachers
Association v. 	Jefferson 	Elementary School 	District 	(1982)
137 Cal.App.3d 993, 	999-1001, hg. 	den.)
In the 	instant 	case, 	the 	governing board of 	a merit 	system
school 	district was willing to negotiate 	proposals 	as 	to 	a 	general
across 	the 	board percentage 	increase 	for all merit 	system
classifications,8 but refused to negotiate proposals 	for 	separate
salary 	increases 	for one 	or more 	individual merit 	system 	classifi-
See 	also 	Sonoma County Board of Education v. 	PERB 	(1980)
102 Cal.App.3d 689, 	693, 	footnote 3.
20
'

cations. 	The District's refusal 	to negotiate 	salary increases 	for
individual 	classifications 	was 	based 	on 	Education Code 	section
45268's9 prohibition on the 	governing board of 	a merit 	system
school 	district 	preventing 	it 	from making 	any 	salary 	changes
in the 	merit 	system 	classified 	service 	that would 	"disturb 	the
relationship which 	compensation 	schedules 	bear to 	one 	another, 	as
the 	relationship has 	been established 	in 	the 	classification made
by the 	[personnel] 	commission," 	and the 	Legislature's 	1981
addition to Education Code section 45256 	(Stats. 	1981, 	ch. 	784)
whereby 	the 	minimum 	elements 	of 	classification to 	be 	established
by a 	personnel 	commission 	in 	classifying 	a merit 	system's
classified 	service 	were 	statutorily 	prescribed.
Merit System School Districts 	(Ed. 	Code, 	secs. 	45220-45320)
A merit 	system 	for 	the 	classified employees 	of 	a 	school
district is 	established in one of three ways: 	(1) 	by the
classified 	employees 	themselves 	through 	a 	petition 	and 	election
9 Education Code 	section 	45268, 	which was 	formerly Education
Code 	section 	13719 	and was 	originally enacted by 	Statute 	1935,
chapter 618, prescribes:
. . . .
The 	commission 	shall 	recommend 	to the
governing board 	salary 	schedules 	for 	the
classified 	service. 	The 	governing board
may approve, 	amend, 	or reject these
recommendations. 	No amendment 	shall 	be
adopted until 	the 	commission is 	first given
a reasonable 	opportunity 	to make 	a written
statement of 	the 	effect 	the 	amendments will
have 	upon the 	principle 	of 	like pay 	for 	like
service. 	No changes 	shall 	operate to disturb
the 	relationship which 	compensation 	schedules
bear to one another, 	as 	the relationship has
been established 	in 	the 	classification made 	by
the 	commission.
21

process; 	(2) 	by a majority of the district's 	governing board
through a resolution; 	or,, (3) 	by the qualified electors of the
school 	district through a petition and election process. 	(Ed.
Code, 	secs. 	45220-45225.)
A merit 	system 	is 	administered by a 	three- 	or 	five-member
personnel 	commission. 	In the three-member commission, 	one member
is 	appointed by the 	governing board, 	one member by the 	classified
employees, 	and these two members 	then choose 	the 	third member.
In 	five-member commissions, 	two members 	are governing board
appointees, 	two members are appointees of the classified
employees, 	and these 	four members 	then choose 	the 	fifth member.
If 	the 	appointed members 	cannot agree 	on the 	third or 	fifth
member, 	that member 	is 	appointed by the 	executive 	officer of
the State Personnel Board. 	(Ed. 	Code, 	secs. 	45243 and 45246.)
Regarding qualifications 	of members 	of 	a merit 	system
personnel 	commission, 	Education Code 	section 45244 prescribes:
To be 	eligible 	for appointment 	or
reappointment 	to 	the 	commission 	a person 	shall
(a) 	be a registered voter and resident within
the 	territorial 	jurisdiction of 	the 	school
district and 	(b) 	be a known adherent to the
principle 	of the merit 	system. 	No member of
the 	governing board of 	any 	school 	district 	or
a 	county board 	of 	education 	shall 	be 	eligible
for appointment, 	reappointment, 	or continuance
as 	a member of the commission. 	During his or
her term of 	service, 	a member of the
commission 	shall 	not be 	an employee 	of 	the
school district.
As 	used in this 	section, 	"known adherent to
the principle 	of 	the merit 	system," 	with
respect to a new appointee, 	shall mean a
person who by the nature 	of his 	or her prior
public 	or private 	service has 	given evidence
that he 	or 	she 	supports 	the 	concept of
22

employment, 	continuance in employment, 	in-
service promotional 	opportunities, 	and other
related matters 	on 	the basis 	of merit and
fitness. 	As used in this 	section, 	"known
adherent to 	the 	principle 	of 	the merit
system," 	with respect to a 	candidate 	for
reappointment, 	shall mean a commissioner
who 	has 	clearly demonstrated 	through meeting
attendance and actions 	that he or 	she does,
in 	fact, 	support the merit 	system and its
operation.
(Ed. Code, sec. 	45244, emphasis added.)
The 	budget 	for 	a merit 	system personnel 	commission 	is 	prepared
by the 	personnel 	commission itself and, 	upon the 	approval 	of
the 	county 	superintendent of 	schools, 	must be 	included by the
district's 	governing board in the 	school district budget. 	(Ed.
Code, 	sec. 	45253.) 	In sum, 	merit system personnel commission
members must be 	adherents 	of merit 	system principles, 	and may not
be members 	of 	the 	school 	district's 	governing board 	(or 	of 	any
district's 	governing board) 	or employees of the 	school district.
Their budget 	is 	not 	controlled by 	the 	governing board.
Accordingly, 	a merit 	system personnel 	commission is 	independent
of, 	not subordinate to, 	a school district's governing board.
. .
Included within the 	statutory 	authority 	and duties 	of 	a
merit 	system personnel 	commission are: 	(1) 	"classifying" 	all
employees 	and positions 	in the classified service 	(Ed. 	Code, 	sec.
45256); 	(2) 	controlling the promotion of classified employees to
a 	higher 	class--with 	its 	concomitant higher 	salary 	schedule 	or 	pay
grade 	level--by way 	of 	examination 	and by determining 	that 	the
classified 	employees 	have 	the 	required 	amount 	of 	service 	in
classes 	designated by the 	personnel 	commission or meet 	the 	minimum
23

qualifications 	of education, 	training, 	experience and length of
service appropriate for the higher class 	(Ed. 	Code, 	sec. 	45272;
and 	see Almassy v. 	Los Angeles 	County Civil 	Service 	Commission
(1949) 	34 Cal.2d 387, 	404; 	Steen v. 	Board of Civil Service
Commissioners 	(1945) 	26 Cal.2d 716, 	722; 	Allen v. 	McKiney 	(1941)
18 Cal.2d 697, 	705; 	Ligon v. 	State Personnel Board 	(1981)
123 Cal.App.3d 583, 	590-591; 	Mierke v. 	Department of Water
Resources 	(1980) 	107 Cal.App.3d 58, 	60; 	Lucchesi v. 	City of
San Jose 	(1980) 	104 Cal.App.3d 323, 	329; 	Sojka v. 	City of Pasadena
(1971) 	15 Cal.App.3d 965, 968, hg. den.; Gov. Code, sec. 	18951);
and 	(3) 	determining when and whether 	classes 	or positions 	should
be 	reclassified when a 	higher 	salary 	schedule 	or 	pay 	grade 	level
is 	sought for an existing class or position 	(Ed. 	Code, 	sec. 	45285;
and 	see Webb v. 	State Personnel 	Board 	(1971) 	16 Cal.App.3d 	542,
545-547; 	Allen v. 	State Board of Equalization 	(1941) 	43 Cal.App.2d
90, 	91-92).
Finally, 	the governing board of 	a merit 	system 	school
district must 	"employ, 	pay, 	and otherwise 	control 	the 	services 	of"
merit 	system employees 	"only 	in accordance with" 	the merit 	system
provisions of Education Code 	sections 	45240-45320. 	(Ed. 	Code,
sec. 	45241.)
Merit 	System 	Classification 	and 	Salaries
Germane 	to 	any 	consideration of 	merit 	system 	classifications
and 	salary 	schedules 	is 	the 	underlying 	general 	salary 	framework.
Such 	a 	salary 	framework 	is 	typically 	composed 	of 	the 	full 	number
of 	salary 	schedule 	or pay 	grade 	levels 	(or 	salary 	classes)
24

arranged 	consecutively 	in 	a 	vertical 	and 	ascending 	graduated 	order
from the 	lowest 	salary 	grade 	level 	to the 	highest 	salary grade
level. 	Each 	salary grade 	level 	represents 	a 	fixed 	salary range
and 	is 	often designated by a 	numerical 	and/or 	alphabetical 	code
symbol, 	and/or may 	show the minimum-maximum dollar range 	of 	that
salary 	grade 	level. 	The 	framework may also 	show a horizontal 	grid
of 	a 	series 	of 	salary 	"steps" 	opposite 	each 	salary grade 	level.
Such 	"steps" 	are normally four to 	five 	in number, 	with the 	first
"step" 	being 	the minimum 	and 	starting 	salary 	for 	that 	salary 	grade
level, 	and each 	"step" 	thereafter 	increasing the 	salary by a
percentage 	amount 	until 	the 	maximum 	salary 	for 	that 	salary 	grade
level 	is 	reached at the 	final 	fourth or 	fifth 	"step." 	In merit
and civil 	service 	systems, 	each of the 	"steps" 	after the 	first
starting 	"step" 	usually represents 	a 	so-called 	"merit 	salary
raise" 	or 	"merit 	salary increase" 	which is 	acquired by a merit
or 	civil 	service 	system employee 	at 	the 	completion of 	each year
of 	satisfactory merit 	service until 	the maximum 	"step" 	in the
salary grade level 	is reached. 	(See, 	e.g., 	Service Employees
International 	Union v. 	County of Napa 	(1979) 	99 Cal.App.3d
946, 	949, 	hg. 	den.; 	Young v. 	State Board of Control 	(1979)
93 Cal.App.3d 637, 	639, hg. den.; Gov. Code, sec. 	73678.)
Examples 	of 	such 	salary 	frameworks 	may be 	found 	in Government
Code 	sections 	73486, 	73525 and 73676.
With respect 	to 	the 	relationship between merit 	system
classification and 	salary 	schedules, 	the Attorney General's
opinion in 54 Ops.Cal.Atty.Gen. 	77 	(1971) 	quoted from Kaplan,
25

the Law of Civil Service, 	that:
The term "classification of positions" 	. 	. 	.
contemplates 	fixing titles 	of 	positions
relative to duties 	and functions, 	allocating
positions 	to their proper classes 	so that all
positions with the 	same 	titles may be 	in the
same 	class, 	and allocation of the classes of
positions 	to their respective 	salary grades 	or
schedules 	according to 	a 	devised 	or designed
pay plan.
(54 Ops.Cal.Atty.Gen. 	at p. 	81.)
The 	opinion 	itself keenly observed: 	"One 	of 	the 	basic 	keys 	to
a meaningful 	classification is 	the 	salary 	structure," 	and that 	a
salary 	structure 	is 	designed to 	be 	internally 	consistent 	based 	on
various 	principles, 	including the principle 	"that employees 	doing
the 	same 	level 	duties 	and having 	similar responsibilities 	should
receive 	similar pay," 	and based further on 	factors 	such as: 	"how
much of 	a 	salary increase represents 	a promotion, 	how many
intermediates 	there 	are 	between 	the working 	class 	and highest
level 	class 	of each occupational 	grouping, 	what represents 	a
proper 	salary 	structure 	or 	pay differential 	for workers 	and 	their
supervisors, 	et cetera." 	(54 Ops.Cal.Atty.Gen. 	at p. 	83, 	emphasis
added.)
54 Ops.Cal.Atty.Gen 	77 	(1971)
In 	1971, 	some 	four years prior to the enactment of EERA
(Stats. 	1975, 	ch. 	961), 	the California Attorney General rendered
an opinion, 	54 Ops.Cal.Atty.Gen. 	77, 	dealing with whether the
governing board 	of 	a merit 	system 	school 	district 	could 	refuse 	to
concur 	in a personnel 	commission's 	recommendations 	to 	change 	the
respective 	pay 	grades 	assigned to 	certain 	existing 	classes 	in 	the
26

classified 	service. 	The personnel 	commission 	in a merit 	system
school 	district 	had made 	recommendations 	for 	changes 	and/or
reclassifications 	in various 	existing classes, 	including changing
titles, 	duties and responsibilities of various 	classes, 	as well as
changing the 	respective pay grades 	of 	the 	classes 	to higher pay
grades. 	Some 	of the proposed pay grade 	changes were based on
"external" 	factors 	(comparable 	salaries 	for 	such classes 	in the
surrounding private and public 	sector areas), 	while others were
related 	"internally" 	to alleged 	increases 	in the duties 	and
responsibilities 	of 	a 	class. 	The 	governing board refused to 	adopt
any of 	the recommendations, 	but did not attempt to amend or 	change
any of 	the 	recommendations.
The question posed to the Attorney General was: 	"Can the
Board of Education refuse to 	concur in a change 	of 	'ranges' 	as
proposed by the 	Personnel 	Commission as 	set 	forth herein?"
(54 Ops.Cal.Atty.Gen. 	at p. 	80.) 	Answering in the affirmative,10
the 	1971 	opinion discussed various 	Education Code 	merit 	system
provisions, 	including Education Code 	sections 	45256 	and 	45268
(former Ed. 	Code, 	secs. 	13712 and 13719). 	In so doing, 	the 	1971
opinion went beyond the question of refusal, 	and opined that,
under Education Code 	section 	13719, 	other 	interested third parties
could make 	salary 	change proposals 	to the 	governing board, 	and
10Dependent on various 	factors, 	including: 	whether
the 	personnel 	commission's 	recommendations were 	as 	to new
classifications 	or were reclassifications, 	whether they involved
"equal pay" 	considerations, 	whether they were based on 	"internal"
or 	"external" 	factors, 	and at what period in time during the
school 	year 	they occurred.
27

that the governing board could, 	on its 	own motion, 	or by adopting
the 	proposals 	of third parties, 	change 	the 	salaries 	for the
classified 	service 	and disturb the vertical 	salary grade 	i
differentials 	existing between classes, 	so long as 	it did not
disturb the 	simple 	ranking of 	the 	classes 	as 	established by 	the
personnel 	commission.
Three aspects 	of this 	1971 	opinion are noteworthy. 	First,
while 	recognizing 	that 	Education 	Code 	section 	13712 	directs 	the
personnel 	commission--not 	the 	governing board--to 	"classify" 	all
employees 	and positions within the 	classified 	service, 	the 	opinion
observes 	that 	"nowhere 	in 	these 	sections 	does 	the 	Legislature
define 	the 	term 	'classify.'" 	The 	opinion then chose 	as 	a point 	of
reference 	the definition of 	"class" 	as 	found in the 	State Civil
Service Act 	(Gov. 	Code, 	sec. 	18500 et seq.) 	meaning a group
of 	positions 	sufficiently 	similar with respect 	to 	duties 	and
responsibilities 	that 	they may be 	allocated to 	one 	class 	having
the 	same title and schedule of compensation. 	(54 Ops.Cal.Atty.Gen.
at p. 	80.) 	The opinion then added, 	as a personnel 	commission
function, 	the ranking of 	such classes within each occupational
group. 	(54 Ops.Cal.Atty.Gen. 	at pp. 	83-85.)
Second, 	the 	opinion quoted in pertinent part 	from Kaplan,
the Law of Civil Service, 	that:
The 	term 	"classification of positions"
has 	different meanings 	in different
jurisdictions. 	. . . 	It 	contemplates 	fixing
titles 	of positions relative 	to duties 	and
functions, 	allocating positions to their
proper 	classes 	so that all 	positions with the
same titles may be 	in the same class, 	and
allocation of the 	classes 	of positions 	to
28

their 	respective 	salary 	grades 	or 	schedules
according to 	a devised or designed pay plan.
(54 Ops.Cal.Atty.Gen. 	at p. 	81, emphasis
added.)
The 	opinion 	itself 	then 	observed:
One 	of the basic keys 	to a meaningful
classification 	is 	the 	salary 	structure.
Such 	a 	salary 	structure 	is 	normally designed
to 	be 	internally 	consistent 	and 	externally
competitive. 	The basic 	operative principle
utilized 	to 	establish 	internal 	consistency 	is
that 	employees 	doing the 	same 	level 	duties 	and
having 	similar 	responsibilities 	should receive
similar pay. 	Each organization establishes
its 	own policy with respect 	to 	its 	internal
structure. 	Such internal 	structuring is
fairly 	subjective 	because 	it 	is 	based in
part on 	factors 	of 	local 	significance.
Illustrative would be how much of 	a 	salary
increase represents a promotion, 	how many
intermediates 	there 	are between the working
class 	and highest 	level 	class 	of 	each
occupational 	grouping, 	what represents 	a
proper 	salary 	structure 	or 	pay 	differential
for workers and their 	supervisors, 	et cetera.
(54 Ops.Cal.Atty.Gen. 	at p. 	83.)
The 	1971 	opinion thus 	recognized that 	an internally
consistent 	"salary 	structure" 	is 	one of the basic 	components 	of
a 	"meaningful 	classification" 	with each 	class 	in an occupational
group being 	allocated to 	its 	appropriate 	pay 	grade 	level 	in
relationship to other classes 	dependent on various 	factors. 	Such
a 	salary 	structure 	is 	based 	in part 	on 	internal 	consistency
factors, 	including the 	salary or pay grade differentials between
classes 	dependent 	not 	only on 	the 	number 	of 	intermediate 	classes
between the working class 	and the highest class, 	but also on what
a proper 	salary differential 	is, 	as 	between the working classes
and the 	supervisorial 	classes.
Last,--and 	related 	particularly 	to 	the 	opinion's 	earlier
29

observation 	that 	the 	Legislature 	had not defined what 	it meant
by 	"classify"--the 	opinion 	further 	observed:
The 	greatest 	difficulty 	in 	construing
the 	language 	of these 	sections 	occurs 	in
attempting to harmonize 	the 	general
legislative 	intent 	as 	herein ascertained /
which 	intent 	operates 	to 	vest power 	concerning
salaries 	in the 	governing board, 	and the
limitation upon 	that power 	stated 	in 	the
fourth 	sentence 	of 	Section 	13719 	[45268] 	which
forbids 	"changes" 	by the 	governing board from
operating 	to 	disturb the 	relationship which
compensation 	schedules 	bear to 	one 	another,
as 	the 	relationship has 	been established 	in
the 	classification made 	by 	the 	personnel
commission.
The 	language 	of 	this 	sentence 	is 	terse
and difficult to 	interpret. 	Certainly,
legislation 	clarification would 	be
h e l p f u l . . . .
(54 Ops.Cal.Atty.Gen. 	at p. 	84, emphasis
in 	original.)
In 	attempting to 	construe 	the 	fourth 	sentence 	of
section 	13719, 	the opinion advanced the premise that the words
"amendments" 	in the 	third 	sentence 	and 	"changes" 	in the 	fourth
sentence 	could not be 	synonymous 	because 	"it 	appears 	impossible 	to
conceive 	of 	any change by the 	governing board, 	in a recommendation
made by the personnel 	commission as not 	'disturbing' 	the relation-
ship which 	compensation 	schedules 	bear 	to 	one 	another."11 Based
1This 	may be 	a 	faulty premise. 	Certainly 	it 	can be
conceived 	that 	a 	governing board may refuse 	to 	adopt 	a personnel
commission's 	five 	percent 	across 	the 	board 	salary 	increase
recommendation, 	but amend the recommendation to provide 	either 	a
lesser 	two 	percent or a 	greater 	six percent across 	the 	board
salary increase. 	Such an amendment is 	a 	change 	in the
recommendation which would 	not 	disturb 	the 	relationship which
compensation 	schedules bear to one 	another, 	as 	the relationship
has 	been established in the 	classification made by.. the personnel
commission.
30

on its 	"impossibility" 	premise, 	the 	opinion surmised that another
meaning must be 	given to 	the word 	"changes." 	The 	opinion then 	set
forth:
It 	is 	concluded 	that although the duty to make
recommendations 	to 	the 	governing board
relative 	to 	salaries 	is 	imposed upon the
personnel 	commission, 	other 	interested parties
may make 	their own proposals 	to 	the board.
Recommendations 	by other 	interested parties,
or 	proposed 	action by 	the 	governing 	board 	on
its 	own motion, 	relating to 	salary 	schedules
for 	the 	classified 	service 	may be 	adopted 	by
the 	board only 	if 	such 	changes 	do not 	operate
to 	disturb the 	relationship which 	salary
schedules bear to one another, 	as that
relationship has 	been established 	in 	the
classification made 	by 	the 	commission.
It 	is 	axiomatic 	that relationships may be
greater than, 	less than, 	or equal to. 	The
classifications 	established by 	the 	personnel
commission may reflect 	the 	fact 	that 	the
secretary to 	the 	superintendent 	is 	assigned
to a higher class 	than 	is 	the 	secretary to the
assistant 	superintendent, 	and each would be 	in
a higher 	class 	than a payroll 	clerk or
secretary/clerk. 	In accordance with 	such
classification, 	each ultimately would be
assigned by the 	governing board 	to 	an
appropriate 	salary range 	which would 	reflect
adjustments 	for 	internal 	consistency 	and
external 	competitiveness. 	The 	classification
by 	the 	commission resulting 	in the 	secretary
to 	the 	superintendent having a higher
classification 	than 	the 	secretary to 	the
assistant 	superintendent 	is within 	the
exclusive control of the commission, 	section
13712; 	it then would be the duty of the board
to 	assign the higher 	classification to 	a
higher 	salary range 	than 	is 	assigned 	to 	each
lower 	classification within 	each 	occupational
group. 	This 	classification relationship may
not be 	disturbed by action of 	the 	governing
board 	in making 	changes 	in 	compensation
schedules; 	however, 	we do not view such
relationships 	as 	being 	necessarily 	"disturbed"
if 	the 	governing board decreases 	or 	increases
the 	salary differential 	between 	two 	non-equal
positions, 	so long as each remains effectively
higher 	or 	lower 	as 	such relative 	relationships
31

have 	been 	established by 	the 	personnel
commission 	classification.
(54 Ops.Cal.Atty.Gen. 	at p. 	85.)
Sonoma County Office of Education 	(1977) 	EERB No. 	40
In 	1977, 	in Sonoma County Office of Education 	(1977) 	EERB12
No. 	40 	(Sonoma No. 	40), 	this Board dealt for the first time with
the 	issue 	of whether the 	governing board 	in a merit 	system 	school
district 	could 	(and 	should) 	bargain with an exclusive 	employee
organization 	over 	the 	individual 	salary 	schedules 	for particular
merit 	system 	classifications. 	The 	majority opinion 	first 	referred
to 	the 	statutory 	interpretation principles 	that 	"the
contemporaneous 	construction 	of 	a 	statute 	by 	those 	charged with
its 	enforcement and interpretation" 	is 	entitled to great weight,13
12Prior to 	1978, 	PERB was known as 	the Educational 	Employment
Relations Board 	(EERB).
13Sonoma No. 	40's majority cited Meyer v. 	Board of Trustees
(1961) 	195 Cal.App.2d 420, 	for the principle that 	"great weight"
should be 	given 	to 	"contemporaneous 	construction." 	It 	should be
noted that Meyer, 	and the 	authorities 	cited in Meyer with respect
to 	contemporaneous 	construction, 	relate 	to 	statutory interpreta-
tions 	by administrative officials, 	the attorney general 	or 	judges
occurring at or near the 	time 	of 	the 	statute's 	enactment 	or
amendment, 	when 	such interpreters were presumed to be 	familiar
with 	the 	impetus 	and/or 	surrounding 	circumstances 	existing 	at
the 	time 	of 	the 	enactment or amendment. 	This meaning of
"contemporaneous" 	also underlies 	the Maxim of 	Jurisprudence
of Civil 	Code 	section 	3535: 	"Contemporaneous 	exposition is 	in
general 	the 	best," 	which is 	derived 	from the 	old 	legal maxim
Contemoranea expositio est 	optima 	et 	fortissima 	in 	lege. 	The
latter maxim 	is 	defined by Black's 	Law Dictionary, 	Fourth Edition,
page 3 90, 	as meaning: 	"Contemporaneous exposition
is the best and strongest in the law. 	2 	Inst. 	11. 	A statute
is 	best 	explained by 	following 	the 	construction put 	upon 	it
by 	judges who lived at the time 	it was made, 	or 	soon after.
10 Coke, 	70; 	Broom, 	Max. 	682." 	(Emphasis in original.)
In 54 Ops.Cal.Atty.Gen. 	77, 	the 	1971 	opinion was attempting
to 	interpret 	a 	statute 	which 	had 	been 	enacted 	and 	added 	to 	the
California School Code in 1935 	(Stats. 	1935, 	ch. 	618, 	p. 	1748,
School Code, 	sec. 	5.797), 	and reenacted and recodified without
32

and 	that 	the 	Legislature 	may be 	presumed to know of 	such 	an
interpretation 	and would 	adopt 	corrective 	measures 	in 	subsequent
enactments 	on the 	subject 	if 	the 	interpretation was 	contrary to
legislative 	intent. 	It then went on to observe 	that the 	opinion
of the Attorney General 	(54 Ops.Cal.Atty.Gen. 	77) 	interpreting
former 	Education Code 	section 	13719 was rendered in 	1971, 	and that
the 	Legislature had reenacted the 	section 	in 	its 	same 	form 	in
1976.14 The majority held that 	the 	1971 	opinion's 	interpretation
of 	Education Code 	section 	45268 was 	controlling 	and 	"binding" 	on
this Board 	(Sonoma No. 	40, 	pp. 	3-5), 	and that bargaining over
salary 	schedules 	for 	individual 	merit 	system 	classifications 	was
required under 	EERA 	in that:
change up to the time of the 	1971 	opinion 	(Stats. 	1943, 	ch. 	71,
Ed. Code, Sec. 	14118; Stats. 	1959, ch. 2, p. 975, Ed. Code, sec.
13719) . 	While respect and weight may be accorded to an opinion of
the Attorney General, 	the 	"great weight" 	to be accorded to a
"contemporaneous 	construction" 	does 	not 	appear to have 	been
appropriate. 	(And 	see Johnston v. 	Board of Supervisors 	(1947)
31 Cal.2d 66, 	74; 	Knowles v. Yeates 	(1866) 	31 Cal. 	82, 	89.)
14Sonoma No. 	40 did not recognize 	or consider that 	such
reenactment was 	simply a part 	and parcel 	of the 	1976 	complete
reorganization, 	renumbering, 	and reenactment of the nearly one
hundred 	thousand 	sections 	of 	the 	entire 	Education Code 	(Stats.
1976, 	ch. 	1010, 	1976 Ed. 	Code 	(Reorganized), 	secs. 	1 	- 99,005).
Also of 	significance 	is 	that 	the question presented and
answered in 	54 Ops.Cal.Atty.Gen. 	77 was whether a governing
board could refuse 	to adopt 	the 	recommendations 	of 	a personnel
commission. 	The 	statute 	itself 	states 	that 	"the 	governing
board may adopt, 	amend or reject." 	Accordingly, 	the opinion's
affirmative 	answer 	as 	to 	the 	refusal 	conformed with the 	statute.
The discussion concerning amendments 	or changes was, 	in essence,
administrative 	"dicta" 	because 	it was 	not addressing the 	subject
at issue.
Nor was 	the 	1971 	opinion of 	"long standing" 	in 	1976. 	(See
Whitcomb Hotel, 	Inc.. 	v. 	California Employment Commission 	(1944) 	24
Cal.2d 	753, 	757-758 	(six years 	not 	"long 	standing".)
33

. 	. 	. 	we find that the governing board
can 	increase 	or decrease 	the 	salaries 	of
particular job classifications, 	so long as
such 	charges 	do not 	lift 	a 	classification
which 	formerly was 	lower 	paid 	above 	one which
formerly was 	higher 	paid within 	the 	same
"occupational 	group."
(Sonoma No. 	40, 	p. 	3, 	emphasis in original.)
The 	Sonoma No. 	40 majority's reliance on the 	1971 	opinion
with respect 	to 	its 	interpretation 	of 	Education Code 	section
45268--that 	the 	section's 	proscription 	against 	a 	governing 	board
making 	any 	changes 	in 	the 	salary 	schedules 	that would disturb the
relationship which 	compensation 	schedules 	bear 	to 	one 	another 	as
established 	in the 	classification made 	by 	the 	personnel 	commission
related 	solely 	to 	simple 	ranking—was 	both 	legally 	erroneous 	as 	to
its 	"binding" 	effect on the 	Board,15 and analytically unsound 	in
15The 	concurring and dissenting opinion in Sonoma No. 	40
recognized the nonbinding effect 	of 	the 	1971 	opinion as 	well 	as
other problems with the 	opinion:
The majority's 	total 	reliance 	on the Attorney
General's 	opinion 	is 	misplaced 	and 	has
resulted in a misconstruction of 	the 	issue
presented by this 	case. 	The 	authority of 	this
Board to 	interpret 	the 	Education Code 	is 	only
as 	broad as 	necessary to 	interpret 	and enforce
the EERA. 	The majority's 	reliance 	on Meyer v.
Board of 	Trustees 	to 	leap 	from the position of
giving 	"great weight" 	to 	an Attorney General
opinion 	to 	considering 	that 	opinion binding on
this 	Board is misplaced. 	Meyer holds 	that
"the 	construction of 	a 	statute by those
charged with 	its 	enforcement 	and
interpretation . 	. 	. 	"is entitled to great
weight. 	. 	. 	.'" 	The Attorney General's
opinion dealt 	solely with an 	interpretation of
one 	section of 	the 	Education Code 	and 	in no
way dealt with 	the 	relationship 	of 	the
Education Code to the EERA. 	The Attorney
General 	is 	not 	charged with the 	enforcement
and 	interpretation 	of 	the 	EERA or the
relationship 	between 	the 	personnel 	commission
and the County office. 	Furthermore, 	giving
34

light 	of 	the 	1971 	opinion's 	self-announced difficulties with the
statute.16
Although 	opinions 	of 	the Attorney General 	may be 	given
weight, 	they are not binding. 	(Sanchez v. 	Unemployment Insurance
Appeals Board 	(1977) 	20 Cal.3d 55, 	66-67); 	Smith v. 	Anderson
(1967) 	67 Cal.2d 635, 	641; 	Public Utilities Commission v. 	Energy
Resources Conserv. 	& Develop. 	Commission 	(1984) 	150 Cal.App.3d
434, 447.)
great weight to 	an opinion does 	not make 	that
opinion binding. 	Moreover, 	it is well-
established 	that 	an 	opinion 	of 	the Attorney
General 	is 	advisory and not 	controlling.
(Sonoma No. 	40, conc, and dis. 	opn., p. 	6,
fns. omitted.)
16See pages 28-29, 	supra, 	as to the 	1971 	opinion's
observations 	that 	the 	Legislature 	had not 	defined 	the 	term
"classify" 	(54 Ops.Cal.Atty.Gen. 	at p. 	80), and that:
The 	greatest 	difficulty 	in 	construing
the 	language 	of 	these 	sections 	occurs
in 	attempting 	to harmonize 	the 	general
legislative 	intent 	as 	herein ascertained,
which 	intent 	operates 	to 	vest 	power 	concerning
salaries 	in the 	governing board, 	and the
limitation upon 	that 	power 	stated 	in 	the
fourth 	sentence 	of 	Section 	13719 	[now sec.
45268] 	which forbids 	"changes" 	by the
governing 	board 	from 	operating 	to 	disturb
the 	relationship which 	compensation 	schedules
bear to one another, 	as 	the relationship has
been established 	in 	the 	classification made 	by
the personnel 	commission.
The 	language 	of 	this 	sentence 	is 	terse
and difficult to interpret. 	Certainly,
legislative 	clarification would 	be
h e l p f u l . . . .
54 Ops.Cal.Atty.Gen. 	at p. 	84, emphasis
in 	original.)
35

Moreover, 	with 	respect 	to 	the 	Legislature 	having 	reenacted
Education 	Code 	section 	45268 	without 	change 	as 	part 	of 	its
complete 	reorganization 	and 	renumbering 	of 	the 	Education 	Code 	in
1976, 	the 	Supreme 	Court recently reaffirmed in Dyna-Med, 	Inc. 	v.
Fair Employment & 	Housing Commission 	(1987) 	43 	Cal.3d 	1379, 	1396,
that:
"[A]n 	erroneous 	administrative 	construction
does 	not 	govern 	the 	interpretation 	of 	a
statute, 	even 	though the 	statute 	is
subsequently 	reenacted 	without 	change.
[Citations.]" 	(Whitcomb Hotel, 	Inc. 	v.
Cal.Emp.Com. 	(1944) 	24 Cal.2d 	753, 	757-758.)
(Accord Louis 	Stores, 	Inc. 	v. 	Dept, 	of Alcoholic 	Beverage Control
(1962) 	57 Cal.2d 	749, 	759-760; 	Estate of Madison 	(1945) 	26 Cal.2d
453, 	463; 	Addison v. 	Dept, 	of Motor Vehicles 	(1977) 	69 Cal.App.3d
486, 	497; 	Estate of Elsman 	(1977) 	74 Cal.App.3d 721, 	734, 	hg.
den.; 	Sacramento Typographical 	Union No. 	46 v. 	State 	of 	California
(1971) 	18 Cal.App.3d 634, 	638; 	County of Los Angeles v. 	State
Dept, 	of Public Health 	(1958) 	158 Cal.App.2d 425, 	438, 	hg. 	den.;
and 	see 	Coan v. 	State of California 	(1974) 	11 	Cal.3d 	286, 	294,
fn. 9 . )
The 	1980 	Sonoma Appellate 	Decision
The 	Sonoma 	County 	Board 	of 	Education 	petitioned 	the 	superior
court 	for review of 	the 	1977 	Sonoma No. 	40 	decision, 	and PERB
cross-petitioned 	for 	enforcement 	of 	the 	decision.17 The 	superior
17At 	the 	time 	of the 	Sonoma No. 	40 	decision 	in 	1976, 	judicial
review 	of 	EERB/PERB 	decisions 	was 	by way 	of 	a 	mandamus 	petition 	in
the 	superior 	court, 	with 	the 	resulting 	judgment 	being 	appealable
to 	the 	Court 	of Appeal. 	(Formerly Gov. 	Code, 	s e c 3242; 	see
Stats. 	1979, 	ch. 	1072.)
. 1 . 	- . . .
36

court entered 	judgment enforcing the 	Sonoma No. 	40 	decision. 	The
county board appealed. 	Three years 	later, 	the 	appellate 	court
rendered its 	decision 	in Sonoma County Board of 	Education v. 	PERB
(1980) 	102 Cal.App.3d 689 	(1980 Sonoma), 	affirming the 	superior
court's 	judgment.
The 	1980 	Sonoma 	court recognized 	initially 	that 	"[t]he 	appeal
presents 	an 	issue 	of 	first 	impression: 	whether 	section 	45268
effectively 	precludes 	a 	governing 	board 	from 	negotiating wages
for 	individual 	job classifications." 	(102 	Cal.App.3d at p. 	693,
emphasis added. )18
The 	1980 	Sonoma decision observed 	that 	a 	comprehensive
statutory 	scheme 	for merit 	systems 	in 	local 	public 	schools 	had
existed 	since 4935, 	and that the 	statutory 	scheme 	established an
independent personnel 	commission which was 	charged 	"with 	the 	duty
to 	classify all 	school 	employees 	and positions 	not 	otherwise
expressly exempted. 	. . . " 	(102 	Cal.App.3d at pp. 	694-696,
18The appellate court, 	by way of footnote, 	also observed
that:
The record discloses 	that except 	for
the disputed 	salary issue, 	the parties
successfully 	negotiated 	a 	memorandum 	of
understanding which included a 	5 	percent
"across-the-board" 	salary increase. 	While
neither party raises 	an issue 	of mootness,
we 	conclude that 	the novel 	questions 	presented
are 	of 	such significant public 	interest 	as
to require 	an adjudication on the merits
(citations).
(102 Cal.App.2d at p. 	693, 	fn. 	3, 	emphasis
added.)
37

emphasis added.) 19
While 	further recognizing 	that 	"the 	question whether board-
initiated 	salary 	changes 	between 	classes would result 	in 	an
impermissible 	disturbance 	in 	classification relationships 	has
never before been decided" 	(102 	Cal.App.3d at p. 	696, 	emphasis
added), 	the 	1980 appellate decision, 	in an approach similar to
Sonoma No. 	40, 	turned to the 	1971 	opinion of the Attorney General,
and 	to 	drawing 	inferences 	from 	subsequent 	legislative 	action 	and
inaction.20
The 	1980 	Sonoma decision noted 	first 	that 	the 	1971 	opinion of
the 	Attorney General 	had 	interpreted 	the 	Education Code 	language
and had opined that, 	under Education Code 	section 45268, 	a
governing board 	could 	change 	the 	salaries 	for, 	and the 	salary
relationships 	between, 	individual merit 	system classes 	so 	long
as 	it did not disturb the 	ranking of 	the 	classes 	within an
occupational 	group 	as 	established by 	the 	personnel 	commission;
and 	second, 	that the Education Code 	language 	interpreted in the
1971 	opinion had remained unchanged by the 	Legislature 	as 	of 	1980.
19We note again the observations of 54 Ops .Cal .Atty .Gen. 	77
at page 	80: 	" . . . 	nowhere 	in these 	sections 	[merit 	system] 	does
the 	Legislature 	define 	the 	term 	'classify.'"
20The 	1980 	Sonoma decision 	set 	forth:
The 	PERB relies 	heavily upon the Attorney
General's 	interpretation 	of 	section 	45268
which recognizes 	the 	governing board's
authority 	to 	adjust 	salary 	differentials
between unequal 	positions within the 	same
occupational 	group provided 	that 	the 	relative
ranking of 	such positions 	as 	established by
the 	personnel 	commission remains 	undisturbed.
(102 Cal.App.3d at p. 	699, 	emphasis added.)
38

Additionally, 	the 	1980 	Sonoma court observed that, 	after the
enactment 	of 	EERA, 	the 	Legislature 	amended Education Code 	section
45261 	in 	1977 	to provide 	that merit 	system personnel 	commission
rules 	should be 	in conformity with the 	terms 	of 	negotiated
agreements 	as 	to negotiable 	subjects. 	The 	1980 	Sonoma decision
"inferred" 	that the 	latter 	1977 	amendment 	indicated a 	legislative
approval 	of the 	1971 	opinion.21
The 	1980 	Sonoma decision also 	attempted 	to deal with an
integral 	component 	of 	merit 	system 	classification 	and 	salary
structuring which was 	not 	addressed or 	resolved 	in 	the 	1971
opinion22 or in Sonoma No. 	40. 	The 	1980 	Sonoma decision
recognized that, 	with respect to merit 	system classification, 	a
21We note 	again that the 	1971 	opinion arose 	from a 	situation
where 	a 	governing board had refused 	to 	adopt 	any of 	a 	personnel
commission's 	recommendations 	concerning 	existin	- 	g 	classifications
and pay grades. 	The question posed was whether 	a 	governing board
could 	so refuse; 	it was not whether or what amendments 	or 	changes
could be made by the governing board. 	Also, 	the 	1971 	opinion was
rendered 	some 	four years 	before 	the 	enactment of 	EERA 	(Stats.
1975, 	ch. 	961), 	did not deal at all with collective bargaining
and/or negotiability of 	salary 	schedules 	vis-a-vis 	EERA, 	and had a
"bottom 	line" 	conclusion--that 	the 	governing board 	could 	refuse 	to
adopt 	the 	recommendations--which 	comported with 	the 	statutory
provisions 	that the 	governing board could 	"reject" 	the
recommendations. 	(Ed. 	Code, 	sec. 	45268.)
22The 	1971 	opinion did note 	that positions 	or 	classes within
different occupational 	groups may have 	the 	same 	salary 	for 	a 	given
period of 	time, 	but that two different classes may not have 	such a
compelling relationship 	that would require 	them 	to 	always 	have 	the
same 	salary, 	as 	other 	factors 	could come 	into play changing the
relationship. 	(54 Ops.Cal.Atty.Gen. 	at p. 	83.) 	However, 	the 	1971
opinion 	failed to 	address 	the disturbance 	in the horizontal 	salary
level 	relationships 	between 	classes 	in 	different 	occupational
groups 	as 	established by 	the 	personnel 	commission 	and which would
be 	affected 	by 	the.. governing 	board 	changing 	the 	salary 	schedule
level 	of a related class 	in only one 	occupational 	group.
39

personnel 	commission not 	only vertically 	structures 	the 	various
individual 	classes within each occupational 	group, 	but that 	it
also horizontally 	aligns 	between 	occupational 	groups 	those
individual 	classes 	which--based 	on qualitative 	and 	quantitative
factors, 	such as: 	class qualifications, 	license or certificate
requirements, 	experience, 	level of duties and scope of
responsibilities—are 	determined 	to 	merit 	the 	same 	salary 	grade
level 	on the basis 	of 	the principle of 	"like pay 	for 	like
service." 	(See 	102 Cal.App.3d at pp. 	694-695, 	fn. 	6 and chart,
pp. 	699-700; Ed. Code, 	sec. 	45268.)
The 	1980 	Sonoma decision attempted 	to 	handle 	the 	horizontal
relationship problem by 	asserting 	that:
Only the 	adjustment 	of 	salaries 	between
classes within a given occupational 	group is
affected; 	that permissible 	action cannot be
said 	to 	necessarily disturb 	the 	relationship
between 	salary 	schedules 	of 	other 	groups which
remains 	within 	the 	classification prerogatives
of the Commission.
(102 Cal.App.3d at p. 	700, 	emphasis added.)
If the 	court's 	latter 	"between" 	reference related to not
necessarily disturbing the 	vertical 	"between" 	relationships 	of
salary 	schedules 	of 	classes within other occupational 	groups, 	it
ignores 	the horizontal 	"between" 	relationships 	as 	to 	individual
classes of other occupational groups. 	But, 	if the 	"between"
reference 	is 	to 	the horizontal 	"between" 	relationships—which 	is
what 	the 	court was 	discussing 	immediately preceding 	its 	statement-
-it does 	not 	explain why a vertical 	salary 	schedule 	elevation of
one 	or more 	individual 	classes within an occupational 	group does
not disturb 	their 	horizontal 	relationship 	to 	corresponding 	salary
40

schedule 	level 	classes 	as 	established by the personnel 	commission
and vice versa. 	Nor are we 	told why the disturbance 	of 	the
relationship of 	salary 	schedules 	between 	classes 	within 	an
occupational 	group is 	a prerogative of 	the 	governing board, 	while
the 	relationship between 	salary 	schedules 	of 	classes 	in other
groups 	remains within the 	classification prerogatives 	of 	the
personnel 	commission.
Further, 	possibly confused with respect to the 	scope 	of
the 	1977 	legislative amendment 	to 	Education Code 	section 	45261
requiring that 	personnel 	commission rules 	applying 	to 	a 	bargaining
unit be 	in accordance with the 	negotiated agreement as 	to matters
which are negotiable, 	the 	1980 	Sonoma decision declared:
. 	. 	. 	We construe the statutory intendment
as manifesting a 	legislative 	policy that 	in
the 	areas 	of 	collective 	bargaining authorized
under the provisions 	of the Rodda Act 	[EERA],
those 	provisions 	prevail 	over 	conflicting
enactments 	and rules 	and regulations 	of 	the
public 	school 	merit or 	civil 	service 	system
relating to the matter of wages 	or
compensation in its 	classified 	service.
(102 Cal.App.3d at pp. 	701-702, 	emphasis
added.)
Clearly, 	the 	1977 	legislative amendment to Education Code 	section
45261 	dealt with the rules 	of 	the 	personnel 	commission 	in relation
to matters which are negotiable. 	The 	Legislature 	did not 	change
Government 	Code 	section 	3540's 	nonsupersession prescription 	as 	to
conflicting Education Code 	enactments, 	nor did the 	Legislature
amend the EERA scope of representation section 	(Gov. 	Code, 	sec.
3543.2) 	to provide that, 	notwithstanding Education Code 	section
45268, 	the public 	school 	employer 	shall meet and negotiate 	the
41

salary 	schedules 	for individual merit 	system classes, 	et 	cetera.23
. . .
Finally, 	after holding that 	a 	governing board was 	under
a duty 	to bargain 	in good 	faith with 	an employee 	organization
concerning proposals related to 	salaries 	or wages 	of 	the
represented unit within the 	classified 	service, 	the 	1980 	Sonoma
court 	stated:
We 	further hold 	that no restriction 	is 	imposed
upon the 	Board under the provisions 	of 	section
45268 	in negotiating 	salary adjustments 	for
individual 	job 	classifications 	within 	the
same 	occupational 	group provided 	that 	the
relationship 	between 	such 	individual 	positions
as 	established by 	the 	Commission remains
intact.
(102 Cal.App.3d at p. 	702.)
The 	1980 	Sonoma decision 	ended with 	the 	following 	inexplicable
footnote:
We 	emphasize 	that 	the 	narrow restriction
imposed upon 	the 	Board under 	the 	statute
sanctioning 	relative 	salary 	changes 	within
an 	occupational 	group must 	nevertheless
operate 	in such a manner as not to disturb
the relationship 	in 	salary 	schedules 	as
established 	between 	the 	remaining 	occupational
groups. 	However, 	we need not and do not
decide 	the nature 	and extent 	of 	changes which
could possibly result 	in 	the 	proscribed
disturbance. 	Given the practical realities
of 	fiscal 	restraints 	and 	competitive 	economic
factors within the labor market, 	such a
possibility would 	appear 	more 	theoretical
than real.
(102 Cal.App.3d at pp. 	702-703, 	fn. 	15,
emphasis 	added.)
23A 	similar 	contention is 	raised 	in the 	lead plurality
opinion 	concerning 	the 	1981 	amendment 	to 	Education Code 	section
45260 	and 	its 	proviso that personnel 	commission rules 	shall 	not
apply to bargaining unit members 	"if 	the 	subject matter 	is within
the 	scope of representation." 	Like the 	1977 amendment to 	its
companion Education Code 	section 	45261, 	this restriction on rule
applicability relates 	to negotiable 	subject matters.
42

So, 	on this 	"issue of 	first impression" 	involving a 	"novel
question" 	that 	"has 	never before been decided" 	(102 	Cal.App.3d at
pp. 	693-696), 	the 	1980 Sonoma decision held in essence--like the
1971 Attorney General's 	opinion and Sonoma No. 	40--that the merit
system 	classification 	relationship 	established 	by 	the 	personnel
commission 	and which Education Code 	section 	45268 	bars 	a 	governing
board 	from disturbing 	in making any 	salary 	schedule 	changes, 	was
only that 	of 	the 	simple 	vertical 	ranking of 	individual 	classes
within an occupational 	group. 	That is, 	the 	salary grade 	or 	level
of a 	class 	cannot be raised to a grade 	equal 	to or above 	that of
the next class 	ranked above 	(or alternatively, 	cannot be 	lowered
to or below the class ranked below). 	Thus, 	1980 Sonoma held that
a 	governing board could, 	and must, 	negotiate with exclusive
employee 	organizations 	the 	salary 	schedules 	or 	grades 	for
individual 	merit 	system 	classes, 	and may disturb the 	salary grade
differential 	relationship 	established 	and 	existing 	vertically
between merit 	system classes, 	so 	long as 	the 	simple ranking was
not 	changed.
The 	1981 	Legislative Amendment
Following the 	issuance 	of 	the 	first 	impression 	1980 	Sonoma
decision24--opining 	that 	a 	governing board 	in 	a merit 	system
24The 	1980 	Sonoma decision 	identified the 	issue 	presented 	as
"an issue 	of 	first 	impression: 	Whether 	section 45268 	effectively
precludes 	a 	governing 	school 	board 	from 	negotiating wages 	for
individual 	job classifications" 	(entailing 	"novel 	questions" 	of
"significant public 	interest") 	and involving the 	question 	of
"whether 	board-initiated 	salary 	changes 	between 	classes 	would
result 	in 	an 	impermissible 	disturbance 	in 	classification
relationships." 	(Sonoma County Board of 	Education v. 	PERB 	(1980)
102 Cal.App.3d 689, 	693, 	fn. 	3, 	696, 	emphasis in original.)
43

school 	district must bargain with employee unions 	the 	salary
schedule 	level 	for 	individual 	classes 	in an occupational 	group
and 	could 	disturb 	the 	classification 	relationships 	established
vertically 	in 	the 	gradation or number 	of 	salary 	schedule 	grades 	or
levels 	existing between individual 	classes, 	so 	long as 	the 	simple
hierarchical 	ranking of 	the 	individual 	classes was 	not disturbed--
there was 	legislative action. 	The 	1981 	Legislature 	amended
Education Code 	section 	45256 	to 	statutorily declare 	the 	meaning
and 	effect 	of 	"to 	classify" 	in 	its 	statutory mandate 	to merit
system personnel 	commissions 	to 	classify25 all 	positions 	in 	the
classified 	service of 	a merit 	system 	school district. 	(Stats.
1981, ch. 784, p. 3051.)
The 	1981 	Legislature made 	the 	following addition to 	Education
Code 	section 	45265 	in the merit 	system article 	of which Education
Code 	section 45268 	is a 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
25As noted previously, 	the Attorney General's 	opinion in
54 Ops.Cal.Atty.Gen. 	77 observed that, 	in directing a personnel
commission to 	"classify" 	merit 	system positions 	(former Ed. 	Code,
sec. 	13712, 	now Ed. 	Code, 	sec. 	45256), 	the Legislature had not
defined 	the 	term 	"classify." 	The 	opinion 	then 	opted 	to 	use 	the
definition of 	"class" 	found in the 	State Civil 	Service Act 	(Gov.
Code, 	sec. 	18523) 	which relates 	solely to the placing of 	similar
positions 	into the 	same class. 	(54 Ops.Cal.Atty.Gen. 	at p. 	80.)
Then, 	in addressing Education Code 	section 	45268's 	proscription
against 	a 	governing board making 	salary 	schedule 	changes which
would 	disturb 	"the 	relationship which 	compensation 	schedules 	bear
to one 	another, 	as 	the relationship has 	been established in the
classification made 	by the 	commission," 	the 	opinion 	further
observed that 	"(t)he 	language 	of 	this 	sentence 	is 	terse 	and
difficult to interpret. 	Certainly, 	legislative... clarification
would be helpful." 	(54 Ops.Cal.Atty.Gen. 	at p. 	84, 	emphasis
added.)
-. .A"
44

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.
(Underlined portion added by Stats. 	1981,
ch. 784, p. 3051)
This 	1981 	legislation prescribes what 	a personnel 	commission's
classification 	of 	a merit 	system 	classified 	service 	must minimally
include 	(". 	. 	. 	shall include, 	but not be limited to 	. . . 	"26) .
It 	thereby 	clarified the 	elements 	of 	a 	classification 	established
by 	a merit 	system personnel 	commission which 	a 	governing board 	is
prohibited 	from disturbing pursuant 	to Education Code 	45268. 	(In
re Marriage of Paddock 	(1971) 	18 Cal.App.3d 355, 	360, 	hg. 	den.;
In re Connie M. 	(1986) 	176 Cal.App.3d 1225, 	1238; 	Nationwide
Investment Corp. 	v. 	California Funeral 	Service 	(1974)
40 Cal.App.3d 494, 	500-501.) 	Such a 	statutory prescription as 	to
the 	meaning of 	a 	term 	is 	binding when 	interpreting 	the 	statutory
scheme. 	(Rideaux v. 	Torgrimson 	(1939) 	12 Cal.2d 633, 	63 6;
Haggerty v. 	Associated Farmers of California 	(1955) 	44 Cal. 2d
60, 	69; 	People v. 	Dillon (1983) 	34 Cal.3d 441, 	468; 	Great Lakes
26"Shall" is mandatory. 	(Ed. 	Code, 	sec. 	75; 	Fair v.
Hernandez 	(1981) 	116 Cal.App.3d 868, 	878, hg. 	den.; 	Hogya v.
Superior Court 	(1977) 	75 Cal.App.3d 122, 	133, hg. 	den.; 	REA
Enterprises v. 	California Coastal Commission 	(1975) 	52 	Cal.App.3d
596, 606, hg. den.)
And 	"(t)he term 	'includes' 	is 	ordinarily a word of
enlargement and not of 	limitation." 	(People v. 	Western Air Lines,
Inc. 	(1954) 	42 Cal.2d 621, 	639; 	Oil Workers International Union v.
Superior Court 	(1951) 	103 Cal.App.2d 512, 	570.)
45

Properties, 	Inc. 	v. 	City of El Sequndo 	(1977) 	19 Cal.3d 152,
156; 	Urban Renewal Agency v. 	California Coastal 	Zone Conserv.
Commission 	(1975) 	15 Cal.3d 577, 	584-585; 	Keller Street Develop.
Co. 	v. 	Dept, 	of Investment 	(1964) 	227 Cal.App.2d 760, 	763, 	hg.
den.; 	B.P. 	Schulberq Prod. v. 	California Employment Commission
(1944) 	66 Cal.App.2d 831, 	835.)
The 	1981 	legislative 	enactment 	identifies 	and mandates 	four
distinct elements 	of 	"classifying" 	which must be 	formulated and
established by a personnel 	commission as 	components 	of 	a merit
system 	classification 	scheme:
1. 	"allocating positions 	to appropriate classes,"
2. 	"arranging classes 	into occupational 	hierarchies,"
3. 	"determining reasonable relationships within
occupational hierarchies," 	and
4. 	"preparing written class 	specifications."
The 	first required element, 	"allocating positions 	to
appropriate 	classes," 	is 	one of the 	components 	of 	classification
which was opted for in 54 Ops.Cal.Atty.Gen. 	77, 	at page 80, 	and
has 	long been 	statutorily 	exemplified 	in 	the 	statutory 	definition
of 	"class" 	found in Government Code 	section 	18523 	of 	the 	State
Civil 	Service Act:
"Class" 	means a group of positions
sufficiently 	similar with respect 	to 	duties
and responsibilities 	that 	the 	same 	title may
reasonably 	and 	fairly 	be 	used 	to 	designate
each position 	allocated 	to 	the 	class 	and 	that
substantially the 	same 	tests 	of 	fitness 	may be
used 	and 	that 	substantially 	the 	same 	minimum
qualifications 	may be 	required and 	that 	the
same 	schedule 	of 	compensation may be made 	to
apply with 	equity.
(Gov. Code, sec. 	18523, emphasis added.)
46

Thus, 	the 	first threshold element 	in classification by a personnel
commission is 	to marshal 	together 	and allocate 	to 	an 	individual
class 	all 	those positions which the 	personnel 	commission
determines: 	(a) 	as having sufficiently 	similar duties 	and
responsibilities 	that 	the 	same 	title may be used 	to designate
each position allocated to the 	class; 	(b) 	that 	substantially the
same 	tests 	of 	fitness 	and the 	same minimum qualifications 	may be
used and required 	for 	each position allocated to 	the 	class; 	and
(c) 	that the 	same 	schedule 	of 	compensation may equitably apply
to each position allocated to the class. 	(Ed. 	Code, 	sec. 	45256;
Professional 	Engineers 	in California Government v. 	State 	Personnel
Board 	(1977) 	70 Cal.App.3d 346, 	350-351, 	hg. 	den.; Allen v. 	State
Board of Equalization 	(1941) 	43 Cal.App.2d 90, 	92.)
Once 	a personnel 	commission has 	completed this 	first 	step,
it must perform the 	second required element, 	which 	is 	"arranging
classes 	into 	occupational 	hierarchies." 	This 	element requires
that the personnel 	commission arrange 	the 	various 	classes 	into
occupational hierarchies. 	That is, 	it must cull occupationally-
related 	classes 	together 	into 	an 	occupational 	group 	and 	vertically
rank the 	classes within each occupational 	group. 	Of 	critical
significance to the issue presented in this 	case, 	it is 	this
second 	element 	of 	classification--the 	vertical 	ranking of 	classes
within 	an 	occupational 	group--which 	the 	1980 	Sonoma 	decision 	(and
the Attorney General's 	1971 	opinion and Sonoma No. 	40) 	believed
to 	be 	the 	sole 	classification relationship which 	Education 	Code
section 	45268 	proscribes 	from 	being 	disturbed 	by 	governing 	board
47

changes 	in 	the 	salary 	schedule 	level 	for an individual 	class 	in
an occupational 	group.27 That 	this 	second element prescribes 	and
includes 	the 	vertical 	ranking of 	classes within an occupational
group 	is 	evidenced by the 	Legislature's 	use of 	the 	term
"hierarchies." 	The 	legislative mandate 	in 	the 	second element
of 	classification 	is 	to 	"arranging 	classes 	into 	occupational
hierarchies," 	not 	simply into occupational groups, 	divisions or
sections. 	The general definition and meaning of a 	"hierarchy" 	is:
A body 	of 	persons 	organized 	or 	classified
according to rank, 	capacity, 	or authority
. 	. 	. 	A body of entities arranged in a graded
series . . .
(The American Heritage 	Dictionary of 	the
English Language, 	New College Edition 	(1980),
p. 	621, emphasis added.)
1: 	a rank or order of . 	. 	.; 	5a: 	the
arrangement of objects, 	elements, 	or values
in a 	graduated 	series 	(the 	hierarchy of
occupations 	is 	based on the degree 	of 	skill
and responsibility they entail) 	. 	. 	.
(Webster's 	Third 	New 	International 	Dictionary,
Unabridged, 	1976 Edition, p. 	1066, emphasis
added.)
27The 	gist of the 	1980 	Sonoma decision was 	that a governing
board may 	change 	the 	salary 	schedule 	grade 	for 	an 	individual 	class
in 	an 	occupational 	group--and disturb 	the 	salary 	schedule 	grade
differentials 	existing 	between 	classes 	within 	an 	occupational
group--so 	long as 	it does 	not disturb the 	simple 	vertical 	ranking
established by 	the 	personnel 	commission by raising 	the 	salary
grade 	level of an individual 	class to the 	same as, 	or higher than,
the 	salary grade 	of 	the 	next higher ranked class 	(nor reduce 	the
salary grade level to the 	same as, 	or
lower than, 	the 	salary grade level of the next lowest class).
1980 	Sonoma 	also recognized 	that 	the 	governing 	board 	could
not 	disturb the 	horizontal 	salary 	grade 	alignment 	of 	classes
between occupational 	groups, 	but did not explain or resolve
how a vertical 	change 	in the 	salary grade of 	a 	class within
one 	occupational-group did not 	disturb 	the 	existing horizontal
alignment 	of 	said 	class with 	classes 	in other 	occupational 	groups.
48

So, 	under 	the 	first 	and 	second 	statutorily prescribed
elements 	of 	classification, 	a personnel 	commission allocates 	all
merit 	system positions 	to their appropriate classes, 	marshals 	all
occupationally-related 	classes 	into 	their 	appropriate 	occupational
groups, 	and vertically ranks 	the 	classes within each occupational
group.
The 	third mandated element of 	classification, 	"determining
reasonable 	relationships within 	occupational 	hierarchies," 	brings
us 	to 	a 	component 	of 	classification dealing with determining
relationships 	"within" 	each occupational 	hierarchy. 	The word
"within" 	is defined to mean 	"on the inside, 	INTERNALLY, 	inside
the bounds 	of, 	INSIDE OF: 	not beyond" 	(Webster's Third New Intern.
Dict., 1976 Ed., 	p. 	2627) 	and 	"inside, 	not outside, 	in the inner
part of" 	(The American Heritage Dict, of the 	English Language, 	New
College Ed., 	1980, 	p. 	1471). 	The classification relationship to
be 	determined by the 	personnel 	commission 	in 	this 	third prescribed
step of 	classifying 	is 	not 	the pure 	ranking relationship of 	the
classes 	within 	an 	occupational 	group because 	that 	hierarchical
relationship 	has 	already 	been 	established 	in 	the 	second 	element
of 	classification. 	Moreover, 	we may not assume 	that this 	third
requirement 	of 	classifying 	is 	merely 	a reiteration or 	alternate
expression of pure 	hierarchical 	ranking as 	that would make 	the
third requirement 	surplusage, 	an 	interpretation that must be
avoided. 	(Turner v. 	Board of Trustees 	(1976) 	16 Cal.3d 818,
826; 	Moyer v. 	Workmen's Compensation Appeals Board 	(1973)
10 Cal.3d 222, 	230; 	Watkins v. 	Real Estate Commissioner 	(1960)
49

182 Cal.App.2d 397, 	400, hg. 	den.)
There 	are 	two 	correlative 	relationships 	with respect 	to
classes within an occupational 	group. 	One 	is 	the primary
hierarchical 	ranking of 	the 	classes. 	The 	second involves 	the
gradation of 	each of 	the 	hierarchically ranked 	classes 	to 	its
appropriate 	grade 	level 	in the 	vertically 	graduated 	salary
structure.
In a merit 	system, 	the 	appropriate pay grade 	level 	for an
individual 	class, 	in relation to the 	other ranked classes 	in its
occupational 	group, 	and the number of 	salary 	schedule 	levels 	or
pay 	grade 	differentials 	vertically 	separating 	the 	individual
classes, 	is 	dependent upon various merit related factors
including: 	(1) 	the minimum qualifications 	for the 	class 	including
education, training, experience, 	skills, licensure, years of
proven merit and efficiency in a lower class; 	(2) 	whether a class
is entry, 	junior, 	intermediate, 	senior or journeyman working
level; 	(3) 	the degree of duties and scope of responsibilities 	of
the class; 	(4) 	the number of intermediate classes between the
entry and senior levels; 	(5) 	whether the class has 	any 	"lead" 	or
supervisory duties 	and responsibilities 	and, 	if 	so, 	over how many
lower classes 	involving how many total positions; 	and 	(6) 	the
number 	of 	ascending 	supervisory 	classes.
This 	secondary 	relationship between 	ranked 	classes 	within 	an
occupational 	group thus 	concerns 	the 	gradation or difference 	in
salary 	schedule 	or pay 	grade 	levels 	existing between 	the 	classes
and which 	is 	determined on various 	factors 	including the differ-
50

ences 	as 	to 	level 	and degree 	of 	the duties 	and responsibilities 	of
each 	class with respect to 	the 	classes 	ranked above 	and below it.
A partial 	example 	of 	this 	vertical 	gradation relationship between
classes 	within 	an occupational 	group 	is 	illustrated 	in 	footnote 	6
of 	1980 Sonoma 	(102 Cal.App. 3d at p. 	695), 	showing the salary-
grade 	levels 	of 	the different 	classes within 	an occupational 	group
and 	the 	varying number 	of 	salary grade 	levels 	existing vertically
between 	such 	classes. 	A 	similar example 	of 	this 	secondary 	salary
schedule 	relationship between 	classes within 	an 	occupational 	group
is 	found in the 	Legislature's 	own assignment 	of 	court 	employee
classes 	to 	salary 	schedule 	levels with varying numbers 	of 	salary
schedule 	levels 	between consecutive 	classes, 	such as 	the deputy
clerk 	classes 	in Government 	Code 	section 	72609. 	While 	another
entity--such as 	the 	Los Angeles 	County Board 	of 	Supervisors with
respect to 	Government Code 	section 	72609 	or a 	school 	district
governing board with respect 	to 	Education Code 	section 	45268--may
make 	a 	general 	percentage 	change 	increasing the 	salary 	schedule
amounts, 	the 	salary 	schedule relationship difference 	in the degree
of 	salary 	separation between the 	classes 	remains 	the 	same.
The 	third mandated 	element 	thus 	requires 	a 	personnel
commission 	to determine 	the 	gradation or reasonable 	differential
in 	salary 	schedule 	levels 	which 	should 	exist 	vertically between
the 	classes 	in an occupational 	group.
The 	fourth required element 	of 	classification, 	"preparing
written class 	specifications," 	speaks 	for itself.
51

Lastly, 	while 	Education Code 	section 	45256 prescribes 	the
aforesaid 	four 	elements 	as 	minimum requirements 	in 	classification,
the 	statute 	expressly provides 	that 	the 	personnel 	commission's
classification 	authority 	is 	not 	limited 	to 	said requirements.
Accordingly, 	a merit system personnel 	commission may, 	as part
of 	classification, 	establish a horizontal 	alignment of 	classes
between occupational 	groups with respect 	to the merit principle 	of
"like pay for like 	service." 	(Again, 	see the chart in footnote 	6
of 	1980 	Sonoma 	(102 	Cal.App.3d at p. 	695).)
Conclusion
The 	1980 	Sonoma 	appellate 	decision held 	that 	Education 	Code
section 	45268's 	prohibition 	against 	a 	governing board making 	any
changes 	in 	the 	compensation 	schedules which would disturb 	the
relationship which 	compensation 	schedules 	bear 	to 	one 	another
in 	the 	classification established by 	a merit 	system personnel
commission 	involves 	only the 	simple ranking of 	the 	classes within
an occupational 	group by the personnel 	commission, 	and that
classification by a 	personnel 	commission does 	not 	involve 	the
respective 	salary 	schedule 	differentials 	or 	gradation relation-
ships 	existing vertically between the ranked 	classes. 	The 	1981
Legislature 	then 	amended 	Education Code 	section 	45256 	to
specifically declare 	that 	classification 	by a merit 	system
personnel 	commission 	involves 	not 	only 	the 	simple 	ranking 	of
the 	classes within an occupational 	group, 	but also determining
the 	vertical 	relationships 	between 	the 	ranked 	classes 	within 	an
occupational 	group. 	Education Code 	section 45268 	thus 	bars 	a
52

governing 	board 	from making 	salary 	schedule 	changes 	for 	individual
classes 	and disturbing 	the 	salary 	schedule 	relationships 	existing
vertically between the ranked classes. 	Accordingly, 	proposals
to bargain the 	salary 	schedules 	for 	individual 	classes 	are
nonnegotiable.
•
28 (San Mateo City 	School 	District v. 	PERB 	(1983)
33 Cal.3d 850, 	866; Wygant v. 	Victor Valley Joint Union H.S.
District 	(1985) 	168 Cal.App.3d 319, 	323; 	United Steelworkers of
America 	v. 	Board of 	Education of 	Fontana 	Unified 	School 	District
(1984) 	162 Cal.App.3d 823, 	832-833, 	840, hg. den.; 	California
Teachers Association v. 	Parlier 	Unified 	School 	District 	(1984)
157 Cal.App.3d 174, 	183-184, 	hg. 	den.; 	California School
Employees Association v. 	Travis 	Unified School 	District 	(1984)
156 Cal.App.3d 242, 	249-250; 	Jefferson Classroom Teachers
Association v. 	Jefferson Elementary School 	District 	(1982)
137 Cal.App.3d 993, 	999-1001, hg. 	den.)
I would dismiss 	the 	charges.
5
LE
" A governing board does, 	of course, 	have a duty to bargain
proposals 	for 	a 	general 	salary 	increase--as 	the 	governing board
did in the 	instant 	case, 	and as 	the governing board did 	in 	1980
Sonoma 	(102 Cal.App.3 at p. 	693, 	fn. 	3)--because a general across
the 	board 	increase 	in the 	salary 	schedules 	does 	not disturb 	the
personnel 	commission's 	classification relationships.
3

APPENDIX NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
An Agency of 	the 	State 	of California
After a hearing in Unfair Practice Case No. 	LA-CE-2051,
California 	School 	Employees 	Association 	and 	its 	San 	Bernardino
Chapter No. 	183 v. 	San Bernardino City Unified School 	District,
in which all 	parties had the right to participate, 	it has been
found 	that 	the 	San 	Bernardino 	City 	Unified 	School 	District
violated 	section 3543.5(b) 	and 	(c) 	of the Educational 	Employment
Relations Act 	(EERA) 	by refusing to meet and negotiate 	on a 	CSEA
proposal to adjust the 	salaries of 	17 	specific 	job classes. 	It
has 	been determined that 	the 	subject matter is 	not excluded 	from
negotiations 	by any provision of 	the 	Education Code 	or 	EERA 	and
that the 	District had no right to refuse to negotiate. 	It has
also been found that, 	by this 	conduct, 	the District denied CSEA
the right 	to represent 	the 	employees 	in the representation unit
of 	classified employees.
As 	a result of this 	conduct, 	we have been ordered to post
this Notice, 	and will abide by the 	following: 	We will:
A. 	CEASE AND DESIST FROM:
Failing 	to meet 	and negotiate 	in 	good 	faith upon 	request
with 	the 	exclusive 	representative 	of 	the 	classified 	employees
with regard to 	salaries 	paid 	to 	individual 	job 	classifications,
except 	that the 	District 	shall 	not be 	obligated to negotiate
proposals which would change 	the relationships, 	as 	defined under
Education Code 	section 	45268, 	of 	individual 	job classifications
established by 	the 	personnel 	commission within 	an 	occupational
group or 	among occupational 	groups.
Dated: 	SAN BERNARDINO CITY 	UNIFIED
SCHOOL 	DISTRICT
By:
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD 	der
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION and 	its 	SAN BERNARDINO
CHAPTER NO. 	183,
Charging 	Party,
V.
SAN BERNARDINO 	CITY UNIFIED
SCHOOL DISTRICT,
Respondent.
)
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-2051
PROPOSED 	DECISION
(3/29/85)
)
)
)
)
)
)
)
)
Appearances; 	William C. 	Heath, 	Attorney for 	the California
School 	Employees 	Association 	and 	its 	San 	Bernardino 	Chapter
No. 	183; 	Joseph J. 	Woodford, 	Director of Employee Relations for
the 	San Bernardino 	City Unified 	School 	District.
Before Ronald E. 	Blubaugh, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
This case presents 	the 	narrow 	issue 	of whether 	a 	1981
amendment 	to 	the 	Education 	Code 	eliminated 	the power 	of merit
system school 	districts 	to 	negotiate 	about 	certain changes 	in
the pay 	relationship between 	job classes. 	There 	is no 	factual
dispute 	and 	the case was 	submitted 	on 	a 	stipulated 	record. 	The
District, 	relying 	upon the 	advice of a county counsel, 	contends
that 	the change 	in law precludes 	negotiations 	about 	a 	salary
proposal made by 	the union. 	The 	union contends 	that 	the
Education 	Code 	change 	was 	technical 	and 	did 	not 	affect
negotiating 	obligations.
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
___ )

The charge which commenced 	this 	action was 	filed 	on
September 	20, 	1984, 	by the California School Employees
Association and 	its San Bernardino 	Chapter 	No. 	183 	(hereafter
CSEA) 	against 	the 	San 	Bernardino 	City Unified 	School 	District
(hereafter 	District). 	The charge alleges 	that the District
refused 	to 	negotiate 	about 	changes 	in 	salary 	relationships
proposed 	by 	CSEA 	thereby 	violating 	Educational 	Employment
l	Relations Act subsections 3543.5(c) 	and 	(b).1
On October 	19, 	1984, 	the Los Angeles Regional Attorney for
the 	Public 	Employment 	Relations Board 	(hereafter 	PERB) 	issued 	a
complaint 	against 	the 	District 	which 	incorporated 	the
allegations of 	CSEA. 	The District 	filed an answer 	to 	the
complaint on October 	24, 	1984, 	in which it admitted the factual
allegations 	in 	the 	CSEA charge 	but 	asserted 	as an 	affirmative
defense 	that 	it 	had 	no 	power 	over 	the matters 	raised 	by CSEA.
The 	District 	contended 	that 	the 	establishment 	of 	salary
1Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code. 	The 	Educational 	Employment Relations Act
(hereafter 	EERA) 	is found 	at 	section 	3540 	et seq. 	In 	relevant
part, 	section 3543.5 provides as follows:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(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.
N
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

relationships 	is 	within 	the 	exclusive 	purview of 	the 	District
personnel 	commission 	and 	is 	therefore 	not 	negotiable.
On November 	30, 	1984, 	the parties 	submitted 	a stipulated
record. 	The parties 	filed 	simultaneous 	briefs 	the 	last of
which was 	received on March 	22, 	1985. 	The matter 	was 	submitted
for 	decision upon 	receipt of 	the briefs.
FINDINGS 	OF 	FACT
The 	San Bernardino 	City Unified 	School 	District 	is 	a public
school employer 	under 	the EERA. 	At all times 	relevant, 	CSEA
has 	been 	the 	exclusive 	representative 	of 	all 	of 	the 	District's
classified 	employees 	except 	for 	management 	and 	confidential
employees, 	day-to-day 	substitutes 	and part-time 	employees
working 	fewer 	than 	five days per 	week 	and 	two 	hours 	per 	day.
The District 	is 	a merit 	system school district 	and 	has 	a
personnel 	commission 	in charge 	of 	certain 	employment-related
matters.2 On August 22, 	1984, 	during negotiations for 	the
1984-85 	school year, 	CSEA submitted 	a four-part proposal 	to 	the
District. 	One portion of 	the proposal called 	for 	an
across-the-board 	salary 	increase 	of 	9.5 	percent 	for 	all 	unit
members. 	The 	other 	salary-related part of 	the proposal 	called
for 	specific position 	adjustments 	for 	employees 	in 	17 	listed
job classes. 	In each 	instance, 	the proposal would have
2Provisions 	pertaining 	to 	the merit 	system 	in public
school 	districts 	are 	set 	out 	at 	Education Code 	section 	45220
et 	seq.
w	3

increased 	the 	salary 	range 	for 	employees 	within 	a particular
job 	family.3 In 	no 	instance, 	however, 	would 	the proposal
have disturbed 	the 	hierarchy or 	ranking 	of 	those 	job
classifications within their 	respective job families.4
On August 	24, 	1984, 	the District refused to negotiate about
the 	proposal 	for 	specific 	salary 	adjustments 	in 	the 	17 	listed
classes. 	The District 	based 	its 	refusal 	to negotiate on 	an
opinion from the 	office of 	the 	San Bernardino 	County Counsel.
Joseph J. 	Woodford, 	District director 	of employee 	relations,
sent CSEA a 	letter 	explaining 	its 	refusal 	to negotiate. 	The
letter, 	which makes 	reference 	to the opinion of 	the county
counsel, 	reads in part as follows:
It 	is 	the District's belief 	and
understanding 	that 	this 	Opinion places 	the
subject 	of 	changing 	salary 	relationships
within 	occupational 	series 	outside 	the 	scope
of 	negotiations 	and 	within 	the 	authority 	of
the 	Personnel Commission. 	Therefore, 	the
District's 	representative 	has 	no 	authority
under 	the 	law to 	negotiate 	salary
adjustments 	as proposed 	by 	the Association
on August 22, 	1984.
3For 	example, 	the proposal would have 	increased 	the pay
for 	elementary 	secretaries 	from range 	35A to 	range 	37 	and 	of
school police officer 	I 	from range 	37A to 	39A.
4For example, 	under 	the 	existing classification 	system
employees 	in 	the class 	of campus 	security 	I 	were 	ranked 	in
range 	34A and 	employees 	in campus 	security 	II 	were 	ranked 	in
range 	35A. 	Under 	the CSEA proposal, 	campus 	security I 	would
advance 	to 	range 	36A and campus 	security 	II 	would 	advance 	to
range 	37A. 	Thus, 	employees 	in the position of campus
security 	I 	would 	remain beneath 	those 	in campus 	security 	II
although employees 	in both classes would 	be 	at 	somewhat 	higher
pay 	levels 	than before.
4

The parties continued 	to 	negotiate 	other 	proposals 	after
August 24, 	1984, 	but with the understanding 	that the further
negotiations 	would 	not prejudice 	CSEA's 	right 	to proceed 	with
an unfair 	practice.
LEGAL 	ISSUE
Did 	the 	District 	by 	refusing 	to 	negotiate 	about 	CSEA's
proposal 	to 	adjust 	the 	salaries 	of 	17 	specific 	job classes 	fail
to meet 	and 	negotiate 	in good 	faith 	in violation of 	subsection
3543.5(c) 	and 	(b)?
CONCLUSIONS 	OF LAW 
1
Public 	school 	employers 	under 	section 	3543.3 	have 	the
obligation 	to 	meet 	and 	negotiate 	with 	any 	employee 	organization
chosen as 	an exclusive 	representative 	by their 	employees.
Refusal 	to meet 	and 	negotiate 	upon 	the 	demand of 	the 	exclusive
representative 	is 	an 	unfair 	practice 	and 	a violation 	of
subsection 3543.5(c). 	The obligation to negotiate, 	however,
extends only to 	those matters within 	the 	scope of
5
representation.5 	If 	the 	exclusive 	representative cannot
5
5 The scope of 	representation 	under 	the 	EERA 	is 	set 	out 	in
section 3543.2, 	which provides 	in relevant part as 	follows:
(a) 	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
un
5
5

establish 	that 	the matter 	at 	issue 	is within 	the 	scope 	of
representation 	then 	the 	employer's 	refusal 	to 	bargain 	is
justified.6
Related 	to 	the 	limitation placed 	on 	negotiations 	by 	the
scope of 	representation 	is 	the 	statutory 	reservation 	that
nothing 	in 	the EERA,
. 	. 	. 	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. 	(Section 3540.)
The 	effect of 	this 	section 	is 	to 	further 	limit 	the obligation
of 	an employer 	to negotiate. 	An 	exclusive 	representative's
proposal 	is 	not 	negotiable 	insofar 	as 	it 	would conflict with
the 	statutory 	authority of 	a personnel commission 	to 	regulate
the merit 	system. 	In such a 	situation, 	a public 	school
employer 	can 	lawfully 	refuse 	to 	negotiate.
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. . . .
6It 	is 	the burden of 	the charging party 	to 	show that 	a
negotiable matter 	is within scope. 	See, 	Mt. 	Diablo Unified
School District 	(12/30/83) 	PERB Decision No. 	373 	and Mt. 	Diablo
Unified School District 	(8/15/84) 	PERB Decision No. 	373b.
6
6 rt
6

The District 	argues here 	that 	a 1981 	amendment 	to 	the
Education 	Code 	removed 	from 	the 	school 	board 	the 	power 	to make
(and 	therefore to negotiate about) 	certain changes 	in 	the
classified 	employee 	salary 	schedule. 	Specifically, 	the
District contends 	that 	it 	no 	longer 	has 	the power 	to make
salary 	adjustments 	for 	individual 	job classifications 	within 	an
occupational group. 	The 	District contends 	that 	its power 	to
make 	such 	adjustments 	was 	removed 	by 	the 	1981 	addition 	to
Education Code 	section 	45256 	of 	the 	following 	definition:
. 	. 	. 	"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.7
7Education 	Code 	section 	45256 provides 	as 	follows:
(a) 	The commission 	shall classify all
employees 	and positions 	within 	the
jurisdiction of 	the governing 	board 	or 	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 the classified 	service 	are
the 	following:
(1) 	Positions which require
certification 	qualifications.
77

Prior 	to 	the 	1981 	revision, 	the 	District 	acknowledges,
merit 	system 	school 	districts 	were 	obligated 	to 	negotiate
(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.
(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.
Employment 	of 	either 	full-time 	or 	part-time
students 	in 	any college 	work-study program, 	or 	in
a 	work 	experience 	education 	program 	shall 	not
result 	in 	the 	displacement 	of 	classified 	personnel
or 	impair 	existing 	contracts 	for 	services.
However, 	nothing 	in 	this 	section 	shall prevent 	an
employee, 	who has 	attained 	regular 	status 	in a
full-time 	position, 	from 	taking 	a voluntary
reduction 	in 	time 	and 	retaining 	his 	or 	her 	regular
status 	under 	the 	provision 	of 	this 	law.
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 	anove 	shall 	be 	employed
outside 	the 	classified 	service.
A part-time 	position 	is 	one 	for 	which 	the 	assigned
time, 	when computed on an hourly, 	daily, 	weekly,
or 	monthly basis, 	is 	less 	the 	87 	1/2 percent of
the 	normally 	assigned 	time 	of 	the 	majority 	of
employees 	in 	the 	classified 	service. 	[Underlined
provision 	added by Stats, 	1981, 	Chapter 	784.]
88

about changes 	in the 	salaries 	for 	individual job
classifications 	within 	the 	same 	occupational group. 	The 	only
limitation on 	a 	school 	board's power 	was 	that 	the 	negotiated
changes could not change 	the 	relationship, 	i.e., 	relative
ranking, 	among 	individual positions 	as 	established 	by 	the
personnel 	commission. 	Sonoma 	County Board 	of 	Education 	v.
Public 	Employment Relations Board 	(1980) 	102 Cal.App.3d 	689
[163 Cal.Rptr. 	464], 	enforcing Sonoma County Board of Education
(11/23/77) 	EERB Decision No. 	40. 	However, 	the District
reasons, 	the 	rationale of 	the Sonoma County decision was
undercut with 	the 	1981 	revision of 	Education Code 	section
45256. 	Since then, 	the District concludes, 	the personnel
commission 	has 	the 	duty 	to 	determine 	the 	salary differential
between classifications 	as 	well 	as 	their 	relative 	ranking.
Thus, 	because 	the 	school board has no power 	to change 	the
salary differential among 	the various classifications, 	it has
no 	obligation 	to negotiate.
As CSEA points out, 	however, 	the District's 	rationale
ignores other provisions of 	the Education Code, 	creates
needless 	disharmony 	between 	the 	Education Code 	and 	the 	EERA and
posits 	a 	statutory 	interpretation 	apparently 	not 	envisioned 	by
the Legislature.
In 	advancing 	its position, 	the 	District 	essentially 	ignores
Sonoma County Board v. 	PERB, 	supra, 	102 Cal.App.3d 	689 and the
Education Code 	section which 	it 	interprets. 	The Court 	of
S9

Appeal, 	in Sonoma County Board, was 	required 	to 	interpret
Education Code 	section 	45268. 	That 	section provides as 	follows:
The 	commission 	shall 	recommend 	to 	the
governing 	board 	salary 	schedules 	for 	the
classified 	service. 	The governing 	board may
approve, 	amend, 	or reject these
recommendations. 	No amendment 	shall be
adopted 	until 	the commission 	is 	first given
a 	reasonable 	opportunity 	to 	make 	a written
statement 	of 	the 	effect 	the 	amendments will
have upon 	the principle of 	like pay for 	like
service. 	No changes 	shall operate to
disturb 	the 	relationship which 	compensation
schedules bear to one another, 	as 	the
relationship has 	been established 	in 	the
classification made 	by 	the 	commission.
[Emphasis 	added.]
The Court 	concluded 	that 	under 	Education Code 	section 	45268 	the
school 	board 	retained 	the 	exclusive 	authority 	to 	fix 	the
compensation 	of 	classified 	employees 	subject 	only 	to 	the
limitation of 	the 	section's 	final sentence. 	Relying 	in part on
a prior 	interpretation 	of 	the 	section by 	the Attorney
General 	and 	in part on a 	1976 	amendment 	to 	a 	related
provision 	of 	the 	Education 	Code,9 the 	Court 	of Appeal 	read
8 54 	Ops.Cal.Atty.Gen. 	77 	(1977).
9 The 	court 	relied 	heavily 	on 	the 	amended 	version 	of
Education 	Code 	section 	45261 which provides 	as 	follows:
Subjects of rules. 	(a) 	The rules shall
provide 	for 	the procedures 	to 	be 	followed 	by
the governing 	board 	as 	they pertain 	to 	the
classified 	service 	regarding 	applications,
examinations, eligibility, appointments,
promotions, demotions, transfers,
dismissals, resignations, layoffs,
10

Education Code 	section 	45268 	as 	imposing 	only 	a 	narrow
restriction on 	bargaining. 	The 	Court concluded 	that 	the
employer 	was 	obligated 	to 	bargain 	about 	salary proposals 	for
individual 	job classes within 	an occupational group 	so 	long 	as
the 	relationship between positions 	remains 	as 	established 	by
the personnel 	commission.
Fundamental 	to 	the Court's decision 	is 	its 	interpretation
of 	the word, 	"relationship." 	The Court follows 	the Attorney
General's 	interpretation of 	the word 	as meaning, 	"ranking."
The 	Court 	describes 	with 	approval 	the 	Attorney 	General's
conclusion 	that 	under 	Education 	Code 	section 	45268 	a governing
board 	may 	adjust 	salary 	differentials 	between 	unequal 	positions
within 	the 	same occupational group so 	long 	as 	"the 	relative
ranking 	of 	such 	positions 	as 	established 	by 	the 	personnel
commission remains undisturbed." 	102 Cal.App.3d 	689, 	699.
reemployment, vacations, 	leaves of absence,
compensation within classification, 	job analyses and
specifications, performance evaluations, public
advertisement of 	examinations, 	rejection of unfit
applicants without competition, 	and 	any other 	matters
necessary 	to 	carry out 	the provisions 	and purposes 	of
this article.
(b) 	With 	respect 	to 	those matters 	set forth 	in
subdivision 	(a) 	which are a 	subject of 	negotiation
under 	the provisions 	of 	Section 	3543.2 	of 	the
Government Code, 	such rules as apply to each
bargaining 	unit 	shall 	be 	in accordance with 	the
negotiated 	agreement, 	if any, 	between the exclusive
representative 	for 	that 	unit 	and 	the public 	school
employer.
11

The definition of 	the word 	"relationship" 	to mean 	"ranking"
is 	important to 	the present dispute. 	If 	the word
"relationship" 	is 	interpreted 	in 	the 	newly 	amended 	Education
Code 	section 	45256 	to mean 	"ranking" 	then 	the 	section 	is
consistent 	with 	the 	Court's 	interpretation 	of 	Education Code
section 45268.
The 	District 	rejects 	this definition of 	"relationship"
arguing 	that 	the 	word means 	the 	dollar 	differential 	between
positions. 	The District 	argues 	that 	the concept 	of 	ranking 	job
classes 	is 	included 	within 	the 	section 	45256 	requirement 	that
the 	personnel 	commission 	arrange 	job classes 	into 	occupational
"hierarchies." 	Therefore, 	the District continues, 	the
statutory command 	to 	"determine 	reasonable 	relationships" 	must
mean 	something 	else, 	i.e., 	to 	set the dollar differential
between positions. 10	10
The District's 	interpretation, 	however, 	would 	impute two
different 	meanings 	to 	the 	word 	"relationship" 	within 	related
provisions of 	the Education Code. 	Since 	the Court of Appeal
10	lOCSEA	csEA offers an effective counter 	to 	this argument.
CSEA notes 	that 	the 	District's 	rationale 	would 	telescope 	two
personnel 	commission 	functions 	— 	arranging 	classes 	into
occupational groups 	and 	then 	ranking 	the 	classes 	-- 	into 	the
single phrase, 	"arranging classes 	into occupational
hierarchies." 	At that point, 	CSEA continues, 	the District 	is
left with surplus 	language, 	i.e., 	the duty 	to determine
"reasonable 	relationships 	within 	occupational 	hierarchies."
Rather 	than 	recognize 	the 	surplusage 	as 	evidence 	of 	an 	error 	in
analysis, 	CSEA argues, 	the District simply proceeds to 	invent a
new meaning 	for 	the 	word 	"relationship."
12

already 	has 	determined 	that 	the 	word 	"relationship" 	means
"ranking," 	it can 	be presumed 	that 	the 	Legislature 	intended 	the
word 	to have 	the judicially construed meaning 	when 	it 	amended
Education Code 	section 45256. 	See 	People v. 	Curtis 	(1969) 	70
Cal.2d 347, 	355 	[74 Cal.Rptr. 	713]. 	Thus, 	as CSEA argues,
under 	Education 	Code 	section 	45256 	the personnel commission 	is
given 	four 	distinct 	responsibilities: 	the duty 	to 	allocate
positions 	into 	appropriate classes, 	the duty to gather 	the
classes 	into occupational groups 	(hierarchies), 	the duty to
determine 	reasonable 	rankings 	(relationships) 	within
occupational groups 	and 	the 	duty 	to prepare 	written class
specifications.
CSEA's 	construction of 	the 	statute 	harmonizes 	section 	45256
with 	the whole 	system of 	law of which 	it 	is 	a part. 	See Moyer
v. 	Workmen's Compensation Appeals Board 	(1973) 	10 Cal.3d 	222,
230 	[110 Cal.Rptr. 	144]. 	Where a statute 	is subject to two or
more 	reasonable 	interpretations, 	the 	interpretation which will
harmonize 	rather 	than 	conflict 	with 	other 	provisions 	should 	be
adopted. 	People v. 	Kuhn 	(1963) 	216 Cal.App.2d 695, 	698 	[31
Cal.Rptr. 253].
In 	this 	regard, 	it 	should 	be 	noted 	that Education Code
section 	45261, 	upon which 	the 	Court 	relied heavily in Sonoma
County Board, 	supra, 	102 Cal.App.3d 	689, 	remains unchanged by
the 	amendment 	to 	section 	45256. 	Section 	45261 sets 	out 	the
subject 	upon which 	a personnel 	commission 	shall make 	rules,
13

including 	"compensation within 	classification." 	The 	section
then 	specifies 	that 	such personnel commission 	rules 	as 	pertain
to matters 	within 	the 	EERA scope 	of 	representation 	"shall 	be 	in
accordance with the negotiated 	agreement, 	if any, 	between 	the
exclusive 	representative 	for 	that 	unit 	and 	the 	public 	school
employer." 	In Sonoma County Board, 	the Court 	interpreted 	the
requirement,
. . . 	as 	manifesting 	a 	legislative 	policy
that 	in 	the 	areas of collective 	bargaining
authorized 	under 	the 	provisions 	of 	the 	Rodda
Act, 	those provisions prevail over
conflicting 	enactments 	and 	rules 	and
regulations 	of 	the public 	school merit 	or
civil 	service 	system 	relating 	to 	the 	matter
of wages or 	compensation of 	its classified
service. 	(102 Cal.App.3d 689, 	701-702.)
There 	is 	nothing 	in 	the 	amendment of 	Education Code 	section
45256 which affects 	the Court's conclusion. 	Indeed, 	the
District's 	interpretation of 	the 	amendment 	to 	Education 	Code
section 	45256 	essentially 	would 	repeal 	the 	statutory
prohibition 	against 	personnel 	commission 	rules 	which 	conflict
with negotiated 	agreements. 	Plainly, 	the 	amendment 	should 	not
be 	read 	to provide 	such 	a disharmonious 	result.
Finally, 	the 	result for 	which the District argues 	is
without 	support 	in 	the 	legislative 	history of 	the 	amendment 	to
Education Code 	section 	45256. 	The change 	arose 	in Senate Bill
952 	of 	the 	1981 	legislative 	session. 	As part of 	the 	stipulated
record, 	the parties 	introduced 	the complete 	history 	of SB 	952
including 	the 	various 	amendments 	to 	the 	bill 	and 	the 	analyses
14

of 	the 	various 	legislative 	consultants 	who 	prepared 	the 	bill
for 	legislative committee 	review. 	Nowhere 	in 	the 	legislative
counsel's digest of 	the bill 	in 	its various versions or 	in 	the
analyses 	of 	the 	legislative committee consultants 	is 	there 	any
hint 	that 	the 	bill would 	restrict 	the 	ability 	of 	an exclusive
representative 	to 	bargain 	about 	salary 	relationships 	in merit
system districts. 	The consultant's 	report 	to 	the Senate
Industrial 	Relations 	Committee 	describes 	the purpose 	of 	the
bill 	as making 	"several minor 	and clarifying 	changes 	in 	the
responsibility 	and 	authority 	of 	personnel 	commissions 	in merit
system school 	district." 	The consultant's 	report 	to 	the
Assembly 	Committee 	on 	Public 	Employees 	and 	Retirement 	gives 	a
virtually 	identical 	description. 	The 	effect 	of 	the measure
under 	the 	District's 	analysis 	could 	hardly 	be 	described 	as
"minor 	and clarifying."
For 	these 	reasons, 	it 	is concluded that the 	1981 amendment
to 	Education 	Code 	section 	45256 	did 	not 	remove 	from 	the
District 	its 	ability 	to make 	adjustments 	in 	the 	dollar 	amount
paid 	to 	job classes within occupational 	families. 	The only
restriction on 	the 	District's 	authority 	is 	the 	familiar
qualification 	set 	out by 	Education Code 	section 	45268 	that 	no
change 	shall disturb 	the 	ranking 	set 	by the 	personnel
commission.
It 	is 	undisputed 	that 	the 	District 	refused 	to 	negotiate
about 	the 	CSEA proposal 	to 	adjust 	the 	salaries of 	the
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17 	specific 	job classes. 	Since 	wages 	are 	a 	specifically 	listed
subject within the 	scope of 	representation, 	it 	is concluded
that 	the District has 	failed 	to 	negotiate 	in good 	faith. 	Such
a 	refusal 	violates 	EERA subsections 	3543.5(c) 	and concurrently
(b) 	because 	it denies CSEA the 	right 	to 	represent 	its members.
REMEDY
CSEA seeks 	an 	order 	that 	the 	District 	be directed 	to
negotiate 	in good 	faith about 	its proposal 	to 	adjust 	the
salaries of employees 	in the 	17 	specific 	job classes. 	The 	PERB
in subsection 3541.5(c) 	is given:
. 	. 	. 	the power 	to 	issue a decision and
order 	directing 	an 	offending 	party 	to cease
and 	desist 	from 	the 	unfair 	practice 	and 	to
take such affirmative action, 	including 	but
not 	limited 	to 	the 	reinstatement of
employees with or without back pay, 	as will
effectuate 	the policies of 	this chapter.
The 	remedy CSEA seeks 	is 	the 	ordinary 	remedy 	in a 	refusal 	to
bargain case. 	It 	is 	appropriate 	that 	the District 	be directed
to cease 	and desist 	from 	its 	unfair 	practice 	and 	to post 	a
notice 	incorporating 	the 	terms of 	the order. 	Posting 	of 	such a
notice, 	signed by an authorized agent of 	the District, 	will
provide 	employees 	with 	notice 	that 	the 	District 	has 	acted 	in 	an
unlawful manner, 	is 	being 	required 	to cease 	and desist 	from
this 	activity, 	and will comply with 	the order. 	It effectuates
the purposes 	of 	the 	EERA that 	employees 	be 	informed 	of 	the
resolution of 	the controversy 	and 	the 	District's 	readiness 	to
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comply 	with 	the 	ordered 	remedy. 	Davis 	Unified 	School 	District
et al. 	(2/22/80) 	PERB Decision No. 	116; 	see also Placerville
Union School District 	(9/18/78) 	PERB Decision No. 	69.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings of 	fact 	and 	conclusions 	of 	law,
and 	the entire 	record 	in the case, 	it 	is 	found that 	the
San 	Bernardino 	City 	Unified 	School 	District 	violated
subsections 	3543.5(b) 	and 	(c) 	of 	the Educational Employment
Relations Act. 	Pursuant 	to 	subsection 3541.5(d) 	of 	the
Government Code, 	it 	is hereby ORDERED that 	the District, 	its
governing 	board 	and 	its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
Failing 	to meet 	and negotiate 	in good 	faith 	upon 	request
with 	the 	exclusive 	representative 	of 	the 	classified 	employees
with 	regard 	to 	salaries paid 	to 	individual 	job classifications;
Except 	that 	the 	District 	shall 	be 	under 	no 	obligation 	to
bargain 	about 	proposals 	which would 	change 	the 	relationships 	of
the 	individual 	jobs 	as 	established 	by 	the personnel commission
within 	an occupational 	group.
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
(a) 	Within ten 	(10) 	workdays of 	service of 	a final
decision 	in 	this matter, 	post at all school 	sites 	and all other
work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies of 	the 	notice 	attached hereto 	as 	an appendix.
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The 	notice 	must 	be 	signed 	by 	an 	authorized 	agent 	of 	the
District, 	indicating 	that 	the 	District will comply with 	the
terms of 	this order. 	Such posting 	shall 	be maintained 	for 	a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	insure 	that 	the notice 	is not 	reduced 	in
size, 	altered, 	defaced or covered by any other material.
(b) 	Upon 	issuance of a final decision, 	make written
notification of 	the 	actions 	taken to comply with 	this 	Order 	to
the 	Los Angeles 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in 	accordance with her 	instructions.
Pursuant to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed Decision and Order 	shall
become final on April 18, 	1985, 	unless a party files a timely
statement of exceptions. 	In accordance with the rules, 	the
statement 	of 	exceptions 	should 	identify 	by page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8,
part III, 	section 32300. 	Such statement of exceptions and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the close 	of 	business 	(5:00 p.m.) 	on
April 18, 	1985, 	or 	sent by telegraph or certified United States
mail, 	postmarked 	not 	later 	than 	the 	last day 	for 	filing 	in
order 	to 	be 	timely 	filed. 	See 	California Administrative Code,
title 	8, 	part III, 	section 32135. 	Any statement of exceptions
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and 	supporting 	brief 	must 	be 	served 	concurrently 	with 	its
filing 	upon 	each party 	to 	this proceeding. 	Proof 	of 	service
shall 	be 	filed with 	the Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part 	III, 	section 32300 and 32305
as 	amended.
Dated: 	March 29, 	1985 Ronald E. 	Blubaugh
Administrative 	Law 	Judge
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