MARSHALL v. RUSSO

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Court of Appeal, Sixth District, California.

Angela MARSHALL, Plaintiff and Appellant, v. Tony RUSSO, etc., et al., Defendants and Respondents.

No. H000256.

Decided: December 18, 1987

Diane Ross, Kirsten L. Zerger, Ramon E. Romero, Christine Bleuler, Burlingame, for plaintiff and appellant. Robert A. Rundstrom, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, for defendants and respondents.

I

Angela Marshall (“teacher” or “petitioner”) appeals from the dismissal of her petition for writ of mandate after a general demurrer by Tony Russo, the Superintendent of the Oak Grove School District in Santa Clara County, and the District's Board of Trustees (collectively, “the school district”) was sustained without leave to amend.

The teacher contends Education Code sections 44949 and 44955 entitled her to written notice and an opportunity for a hearing before the district subjected her to a 20 percent cut in hours and wages.   The district demurred on the grounds (1) these sections apply only to terminations, not reductions, (2) the teacher failed to exhaust her administrative remedy of making the same claim to the Public Employment Relations Board, (3) the teacher failed to challenge an adverse arbitration decision rendered pursuant to a collective bargaining agreement, and (4) the teacher failed to supply any record of administrative proceedings.

The trial court sustained the demurrer without leave to amend, reasoning it was now too late for the teacher to pursue her administrative remedy.   We will reverse after determining the school district has stated no valid ground for demurrer.   Our inquiry on demurrer is whether the teacher has alleged facts, assuming them to be true, sufficient to warrant any relief.  (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 953–954, 230 Cal.Rptr. 192, and cases there cited.)

II

Alleged Facts

Pertinent to the alleged Education Code violations and available administrative remedy, the petition alleges:  the teacher is certificated and obtained permanent status in 1971 after being employed by the district since 1967.   In the 1982–1983 school year, she was employed full-time, which consisted of five class periods of instruction and one for preparation.   In the 1983–1984 school year, she was assigned only four class periods, two each in two different schools, with four-fifths of a preparation period, and received 80 percent of her full salary.   She first received notice of this reduction in June 1983, when the school principal told her.   The teacher is equally credentialed and competent and senior to at least one teacher retained full-time by the district to teach a topic the teacher is qualified to teach.

Pertinent to the district's contention that the teacher was required to attack an adverse arbitration decision, the petition alleges:  the teacher initiated a grievance proceeding pursuant to the teachers' association's collective bargaining agreement, which resulted in an advisory arbitration decision rendered on January 18, 1984.   Both documents are attached to the petition and incorporated therein.   The arbitrator concluded:  “The District acted properly, within the terms of the Collective Bargaining Agreement when it reduced the grievant's schedule and income by twenty (20) percent[.]”  The agreement provides that the arbitrator's award is subject to review by the district's board of trustees.   The board's decision is binding, unless successfully challenged by the association in another forum.

A grievance is defined by the agreement as a claim “of an alleged violation, misinterpretation or misapplication of the provisions of this Agreement.”   The arbitrator “shall have no authority to add to, subtract from, or modify the terms of this Agreement, ․”

III

Is a 20 Percent Reduction in Hours and Wages a Termination?

Interpretation of Education Code sections 44949 and 44955 is required to determine whether the teacher has alleged a violation of her rights.1  While the trial court's written decision did not rule on this ground of the demurrer, “ordinarily on appeal we determine whether any of the grounds raised by the defendant's demurrer justifies the court's ruling.”  (B & P Development Corp., supra, 185 Cal.App.3d 949, 959, 230 Cal.Rptr. 192, and cases there cited.)   Moreover, our later analysis depends on understanding these statutes.

Section 44955 limits when a permanent employee can be terminated.   A permanent employee can “be deprived of his or her position” only upon retirement, when working more than full-time, or for various types of unprofessional conduct or other unfitness for service.  (§ 44955, subd. (a).) 2  “ ‘[D]eprived of his position’ refers to dismissal or termination of services.”  (Thompson v. Modesto City High School Dist. (1977) 19 Cal.3d 620, 627, 139 Cal.Rptr. 603, 566 P.2d 237.)   An employee subject to termination for unfitness is ordinarily entitled to pretermination notice and a hearing on request.  (§§ 44934–44944.1.)   Even where immediate suspension is authorized, the employee is entitled to notice and a subsequent hearing on request.  (§ 44939.)

A permanent employee can also be terminated in three other situations, namely (1) an actual decline in the average daily attendance in the district, (2) an anticipated decline in attendance due to the end of an interdistrict tuition agreement, or (3) an anticipated reduction or discontinuation of a particular kind of service.  (§ 44955, subd. (b).)

 An employee subject to termination pursuant to section 44955, subdivision (b), has a variety of statutory protections.   The school district is required to retain those senior employees qualified to render services which are not being reduced or discontinued in preference to equally qualified junior employees who are “bumped” or replaced.  (Krausen v. Solano County Junior College Dist. (1974) 42 Cal.App.3d 394, 402, 116 Cal.Rptr. 833;  Wellbaum v. Oakdale Joint Union High School Dist. (1977) 70 Cal.App.3d 93, 97–98, 138 Cal.Rptr. 553;  cf. Lacy v. Richmond Unified Sch. Dist. (1975) 13 Cal.3d 469, 473–474, 119 Cal.Rptr. 1, 530 P.2d 1377;  see Thompson, supra, 19 Cal.3d 620, 628, 139 Cal.Rptr. 603, 566 P.2d 237;  § 44955, subds. (b), (c).) 3  This statutory bumping scheme ensures that a school district cannot target for reduction the services of a particular employee in disregard of his or her seniority rights.  (Chambers v. Board of Trustees (1940) 38 Cal.App.2d 561, 566, 101 P.2d 727;  Santa Clara Federation of Teachers v. Governing Board (1981) 116 Cal.App.3d 831, 843–844, 172 Cal.Rptr. 312.)

The teacher has alleged that at least one junior employee was retained to render a service which she was qualified to render.   There are no facts alleged to invoke the exception that a school district can retain a junior employee in preference to a senior employee if the junior employee has a special credential or a special competence not possessed by the senior employee.  (King v. Berkeley Unified School Dist. (1979) 89 Cal.App.3d 1016, 1023, 152 Cal.Rptr. 782;  Moreland Teachers Assn. v. Kurze (1980) 109 Cal.App.3d 648, 655, 167 Cal.Rptr. 343;  Santa Clara Federation of Teachers, supra, 116 Cal.App.3d 831, 842–843, 172 Cal.Rptr. 312;  see § 44955, subd. (d), enacted after the omission complained of (Stats.1983, ch. 498, § 65, p. 2095).)

A permanent employee subject to termination pursuant to section 44955, subdivision (b), is entitled to two written notices during the preceding school year, the first announcing possible termination prior to March 15 (§ 44949, subd. (a)) and the second announcing actual termination prior to May 15 (§ 44955, subd. (c)).  The employee is entitled to a pretermination hearing upon written request “to determine if there is cause for not reemploying him or her for the ensuing year.”  (§ 44949, subd. (b).)  “In the event that a permanent ․ employee is not given the notices and a right to a hearing as provided for in Section 44949, he or she shall be deemed reemployed for the ensuing school year.”  (§ 44955, subd. (c).) 4

It is undisputed that a permanent employee cannot be terminated without prior notice and a hearing on request.  (Cf. Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 826, 831–832, 114 Cal.Rptr. 589, 523 P.2d 629.)   The parties disagree on whether the statute applies to a 20 percent cut in hours and wages, which the teacher characterizes as a “partial termination” and the district calls a “reduction in hours and wages.”

The district contends there was no termination because a “reduction in hours of employment” fits the statutory definition of a layoff given in section 45101, subdivision (g).   The district acknowledges that this particular definition is contained in a chapter of the Education Code applicable to classified employees, rather than certificated employees.   The district's point is that the Legislature could have used the phrase “reduction in hours of employment” in section 44955 if it wanted to extend the prior notice and hearing requirement to such a reduction.

Specific statutory provisions should be construed to harmonize with related statutes on the same topic.  (Younger v. Younger (1895) 106 Cal. 377, 380, 39 P. 779;  Brooks v. County of Santa Clara (1987) 191 Cal.App.3d 750, 754–755, 236 Cal.Rptr. 509;  Code Civ.Proc., § 1858.)   There is a reference in section 44959.5 to the “layoff provisions” of section 44955, among other statutes.   Thus, while the Legislature has defined “layoff” in one context as a “reduction in hours of employment,” in a related context it has used “layoff” as interchangeable with “termination.”   Reference to these other parts of the Education Code does not further the district's argument.

The district also contends that Thompson, supra, 19 Cal.3d 620, 139 Cal.Rptr. 603, 566 P.2d 237, supports its interpretation of section 44955.   The teacher there contended he was deprived of his position and hence entitled to a hearing under the statute when he was reassigned from an attendance counselor position to a classroom teacher position with a concomitant salary reduction of over $500 a month.  (Id. at pp. 623, 626–627, 139 Cal.Rptr. 603, 566 P.2d 237.)

The court rejected his claim, holding “section 44955 has no application to the reassignment or demotion of administrators to the position of classroom teacher.  [Citations.]”  (Id. at p. 627, 139 Cal.Rptr. 603, 566 P.2d 237.)   The court explained, “Section 44955 only comes into play once the school district has decided to terminate the services of certain permanent employees in order to reduce the number of employees because of a reduction in the number of students or in order to reduce or discontinue a type of service․  Section 44955 applies to reassignments only after the school board has determined to terminate the services of a permanent employee pursuant to section 44955 and then only to assure that that employee, if entitled so by seniority and qualifications, be reassigned rather than terminated.   The section has no application to normal reassignments of permanent employees.”   (Id. at p. 628, 139 Cal.Rptr. 603, 566 P.2d 237.)   Normal reassignments, though bringing a reduction in pay and prestige, are limited only by reasonableness and the scope of the certificate under which tenure was acquired.  (Id. at pp. 623, 627, 139 Cal.Rptr. 603, 566 P.2d 237.)

There is no claim the teacher here was reassigned, but the district argues that Thompson shows the limited meaning given “termination” in section 44955.   All Thompson holds is that a reassignment accompanied by a partial reduction in wages is not a termination.   The wage reduction in Thompson did not result from the conversion of a full-time employee into a part-time employee.

Certainly the statute applies to a 100 percent reduction in hours and wages.   Our question is whether the Legislature intended “termination” to apply to a lesser percentage reduction in hours and wages.

It persuasively appears the protections afforded a permanent employee against termination should apply to such a partial termination.   We agree with petitioner that the district's narrow interpretation would lead to absurd results, an outcome the law seeks to avoid.  (Ex parte Ellis (1858) 11 Cal. 222, 224–225;  Western Land Office, Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 742, 220 Cal.Rptr. 784;  Civ.Code, § 3542.)   It would be unrealistic and unreasonable to say that an employee suffering a 95 percent reduction in hours and wages was not, effectively, terminated.   It would be similarly unreasonable to attempt to fix a percentage at which an hour and wage reduction constituted a termination.   As the teacher points out, even a 20 percent cut in already marginal pay could drive an employee out of the reduced position.

The teacher has requested that we judicially notice some 24 proposed decisions of administrative law judges to establish that school districts around the state have afforded notice and a hearing to certificated employees subject to partial termination.  (Evid.Code, § 459.)   Notice of them does not aid our statutory construction.  (Cf. Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261.)   While they suggest that school administrators have occasionally adopted a similar construction of the statute, the administrator here urges a different construction.

 We conclude that a permanent employee subject to a 20 percent reduction in hours and wages, whether based on the reduction of a particular kind of service or another statutory ground for termination, is entitled under sections 44949 and 44955 to prior written notice and the opportunity for a hearing.   Thus, the teacher has alleged a violation of these statutory rights.

 Since the teacher has alleged a deprivation of prior notice and the opportunity for a hearing to which she was statutorily entitled, she has also alleged a violation of her due process rights.  (Perry v. Sinderman (1972) 408 U.S. 593, 599–603, 92 S.Ct. 2694, 2698–2700, 33 L.Ed.2d 570;  Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 206–208, 124 Cal.Rptr. 14, 539 P.2d 774;  cf. Balen, supra, 11 Cal.3d 821, 830–831, 124 Cal.Rptr. 14, 539 P.2d 774.)

IV

Must a Mandate Petition Alleging an Education Code Violation Be Preceded by a Complaint to the Public Employment Relations Board (“PERB”)?

The district's demurrer was sustained on the basis that the teacher had failed to exhaust administrative remedies available under the Educational Employment Relations Act (“EERA”), Government Code sections 3540–3549.3.5

San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 191 Cal.Rptr. 800, 663 P.2d 523 provides a helpful overview of this Act.  “The EERA establishes a system of collective bargaining for employees of public school districts educating students in grades kindergarten through 14․  The Act requires the school district employer to meet and negotiate in good faith with the duly selected exclusive representative of its employees as to subjects within the statutorily defined scope of representation.  (§§ 3543.3, 3543.5.)   The parties may enter into a binding agreement (§ 3540.1, subd. (h)), and may agree that disputes involving interpretation, application or violation of the agreement be resolved through binding arbitration.  (§§ 3548.5, 3548.6, 3548.7.)   The employer must negotiate in good faith and must submit to mediation and advisory fact-finding where an impasse in negotiations is determined to have been reached.  (§§ 3548–3548.3.)   But the final decision as to the terms of the negotiated agreement, including those matters within the scope of representation, is reserved to the employer.  (§ 3549.) ․” (Id. at p. 855, 191 Cal.Rptr. 800, 663 P.2d 523.)

“The Act created PERB as an independent board ․ with broad powers and duties to administer the Act.  (§ 3541.3.)   Generally, PERB is empowered to decide contested matters pertaining to all aspects of the selection and certification of employee organizations, to oversee and facilitate the negotiating process established by the Act, to adopt rules and regulations, ․ to hold hearings and order remedies for violations of the Act, and to seek court orders enforcing its own orders, decisions and rulings.”  (Id. at p. 856, 191 Cal.Rptr. 800, 663 P.2d 523.)

The district relies on a number of judicial decisions involving claims which should first have been submitted to the PERB.   We find them of limited relevance, since only one of them analyzes critical language from the EERA, namely, “Nothing contained herein shall be deemed to supersede other provisions of the Education Code․”  (§ 3540;  “Education Code limitation.”)   Moreover, only two of them involve arguable Education Code violations.   “Opinions are not authority for issues they do not consider.”  (Palmer v. Ted Stevens Honda, Inc. (1987) 193 Cal.App.3d 530, 539, 238 Cal.Rptr. 363, and cases there cited.)

One line of the district's cases has established that a school district cannot seek judicial relief from a teachers' strike or work stoppage without first applying to the PERB for relief.  (San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 8–13, 154 Cal.Rptr. 893, 593 P.2d 838;  Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 273–274, 177 Cal.Rptr. 888;  Public Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 890–895, 186 Cal.Rptr. 634;  El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 192 Cal.Rptr. 123, 663 P.2d 893.)

These cases are relevant only insofar as they show how courts have ascertained that the PERB has initial exclusive jurisdiction over a particular claim.   Drawing parallels between the EERA and the National Labor Relations Act, the courts have borrowed the preemption doctrine of federal labor law.  (San Diego Teachers Assn., supra, 24 Cal.3d 1, 12, 154 Cal.Rptr. 893, 593 P.2d 838;  El Rancho Unified School Dist., supra, 33 Cal.3d 946, 953, 192 Cal.Rptr. 123, 663 P.2d 893.)   The courts have also relied on an explicit “exclusive jurisdiction” provision in the EERA.  (Ibid.)  “The initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board.”  (§ 3541.5.)   The statute lists conduct which is “unlawful.”  (§§ 3543.5, 3543.6.)

Thus, in determining a strike was subject to PERB's exclusive jurisdiction, San Diego Teachers Assn. concluded it could be ruled the teachers were committing unfair practices, specifically refusing to negotiate or participate in the impasse procedure in good faith.  (24 Cal.3d at pp. 8–9, 154 Cal.Rptr. 893, 593 P.2d 838.)  El Rancho Unified School Dist. refined this test in light of federal labor law to be whether the challenged conduct was arguably prohibited or protected by the EERA.  (33 Cal.3d at pp. 953–954, 192 Cal.Rptr. 123, 663 P.2d 893.)

San Diego Teachers Assn. also found the answers to two other questions militated in favor of PERB's initial exclusive jurisdiction, namely, whether it could furnish relief equivalent to that which a court could provide, and whether the Legislature intended it to have exclusive initial jurisdiction.   (Id. at p. 7, 154 Cal.Rptr. 893, 593 P.2d 838.)  El Rancho Unified School Dist. found only one other question need be answered affirmatively to favor PERB's jurisdiction, namely, whether the same controversy presented to the court could have been presented to the PERB.  (id. at p. 956, 192 Cal.Rptr. 123, 663 P.2d 893.)

Amador Valley Secondary Educators Assn. v. Newlin (1979) 88 Cal.App.3d 254, 151 Cal.Rptr. 724, also cited by the district, predates the San Diego Teachers Assn. decision.   There teachers filed suit challenging the district's freezing of their salaries pending the outcome of collective bargaining.   Relying simply on the EERA's exclusive jurisdiction provision (§ 3541.5), the court held that they had failed to exhaust their administrative remedy, as they had alleged an unfair practice.  (Id. at p. 257, 151 Cal.Rptr. 724.)

The district also relies on another line of cases which has established that teachers must initially challenge a teachers' association's “organizational security” dues before the PERB, rather than in court.  (Leek v. Washington Unified School Dist. (1981) 124 Cal.App.3d 43, 49–51, 177 Cal.Rptr. 196;  Link v. Antioch Unified School Dist. (1983) 142 Cal.App.3d 765, 768–769, 191 Cal.Rptr. 264;  San Jose Teachers Assn. v. Superior Court (1985) 38 Cal.3d 839, 860–863, 215 Cal.Rptr. 250, 700 P.2d 1252 (judgment vacated sub. nom. Abernathy v. San Jose Teachers Assn. (1986) 475 U.S. 1063, 106 S.Ct. 1372, 89 L.Ed.2d 599, on remand (1986) 42 Cal.3d 130), 227 Cal.Rptr. 112, 719 P.2d 682.) 6  Leek is the leading case, which has subsequently been followed by the later cases.  Leek reasoned that the PERB not only had explicit initial exclusive jurisdiction over unfair practices, but its jurisdiction under section 3541.3, subdivision (i), to investigate other “alleged violations of this chapter,” namely the EERA, was also exclusive.   (Leek, supra, 124 Cal.App.3d 43, 48–49, 177 Cal.Rptr. 196.)   Such organizational security fees, requiring contributions from teachers whether or not they belong to the association, are specifically authorized in the EERA as among the terms and conditions of employment.  (§§ 3540.1, subd. (i), 3543.2, 3546.)  Leek concluded that the teachers' contentions were subject to PERB initial jurisdiction to the extent they had alleged violations of the EERA.   (Id. at p. 53, 177 Cal.Rptr. 196.)

The first case relied on by the district involving an alleged Education Code violation is Los Angeles Council of School Nurses v. Los Angeles Unified School Dist. (1980) 113 Cal.App.3d 666, 169 Cal.Rptr. 893.   There nurses, librarians, and psychologists filed suit challenging part of the collective bargaining agreement between their association and their school district requiring them to work longer hours.   These employees claimed, among other things, this provision violated sections 45024 and 45028 of the Education Code, requiring that work requirements for certified employees be uniform.  (Id. at p. 669, 169 Cal.Rptr. 893.)   Relying on San Diego Teachers Assn., supra, and Amador Valley Secondary Educators Assn., supra, the court determined that the PERB was authorized to resolve such disputes over wages, hours and conditions of employment.  (Id. at pp. 671–672, 169 Cal.Rptr. 893.)   It appeared that the employees were essentially alleging that their exclusive representative had committed an unfair practice by breaching its duty of fairly representing each employee.  (Id. at p. 672, 169 Cal.Rptr. 893.)   The opinion does not consider the Education Code limitation contained in section 3540.

The district also relies on a very recent case, McCammon v. Los Angeles Unified School Dist. (1987) 195 Cal.App.3d 661, 241 Cal.Rptr. 1.   In it a teacher claimed the school district had violated provisions of Education Code section 45028 requiring that certificated employees of equal training and experience be uniformly classified on salary schedules.   The district had given other teachers with similar backgrounds preferential treatment pursuant to provisions in the applicable collective bargaining agreement.   The court considered both the exclusive jurisdiction provision and the Education Code limitation in the EERA, and determined the teacher had failed to exhaust his administrative remedy.   The court reasoned that “incorrect placement on the salary table constitutes an unfair practice” because the challenged policy was contained in the district's collective bargaining agreement with the teachers' association.  “This would constitute a violation of [the teachers' association's] own duty of fair representation owed to [the teacher.]”  (Id. at pp. 664, 665, 241 Cal.Rptr. 1.)

We turn to cases which have construed the Education Code limitation on the scope of the EERA.  San Mateo City School Dist. v. Public Employment Relations Bd., supra, 33 Cal.3d 850, 191 Cal.Rptr. 800, 663 P.2d 523, leads the way, though it did not involve a question of the PERB's exclusive initial jurisdiction.   It did involve judicial review of a challenge by school districts to a PERB determination that the districts had committed unfair practices by refusing to negotiate over negotiable subjects and interfering with the exclusive representative's right to negotiate.   The central question was whether the PERB had adopted a proper test of negotiability in exercise of its power “[t]o determine in disputed cases whether a particular item is within or without the scope of representation.”  (§ 3541.3, subd. (b).)

To answer this question, the court was required to construe the pertinent language in section 3540.   The districts argued the Education Code limitation indicated that the Legislature intended a limited scope of representation.   The court observed that the EERA specifically lists several matters within the scope of representation which are regulated by the Education Code, “such as leave, transfer and reassignment policies.”  (33 Cal.3d at p. 865, 191 Cal.Rptr. 800, 663 P.2d 523.)   The court agreed with the PERB, the Education Code limitation means that nothing in the EERA is to replace, set aside, or annul those employee protection provisions in the Education Code which are mandatory.  (Id. at pp. 864–866, 191 Cal.Rptr. 800, 663 P.2d 523.)   Such mandatory provisions as for layoff of classified employees are nonnegotiable, although they may be included in a collective bargaining agreement to reinforce the Education Code scheme.  (Id. at p. 866, 191 Cal.Rptr. 800, 663 P.2d 523.)

It is significant that the Supreme Court in San Mateo City School Dist. did not invoke either the three-question test of San Diego Teachers Assn., supra, 24 Cal.3d 1, 154 Cal.Rptr. 893, 593 P.2d 838, or the two-question test of El Rancho Unified School Dist., supra, 33 Cal.3d 946, 192 Cal.Rptr. 123, 663 P.2d 893 (filed 12 days after San Mateo ) to determine whether a violation of a mandatory Education Code section was subject to PERB's initial exclusive jurisdiction.

Two of the cases relied on by the teacher specifically employ San Mateo City School Dist.'s analysis of the Education Code limitation to reject school district arguments that their employees failed to exhaust EERA's administrative remedies.   They hold that where employees have alleged Education Code violations of mandatory duties, the PERB's jurisdiction is not exclusive, though the violation could be characterized as an unfair practice.   (California School Employees Assn. v. Travis Unified School Dist. (1984) 156 Cal.App.3d 242, 249–250, 202 Cal.Rptr. 699—school employees' association claimed district failed to reimburse bus drivers for expenses incurred on field trips and for athletic events in violation of section 44032;  Wygant v. Victory Valley Joint Union High School Dist. (1985) 168 Cal.App.3d 319, 323–325, 214 Cal.Rptr. 205—a teacher and her association challenged the district's professional growth policy as a violation of section 45028.) 7

Petitioner also relies on two other cases which could have been strengthened by citation to San Mateo City School Dist. or the Education Code limitation.   In California School Employees Assn. v. Azusa Unified School Dist. (1984) 152 Cal.App.3d 580, 199 Cal.Rptr. 635, a school employees' association claimed its school district failed to pay some of them for certain days off in violation of Education Code section 45203.   The district argued, among other things, that the association was alleging an arguably unfair practice and had failed to exhaust its administrative remedies.   The court rejected this argument, distinguishing prior cases involving arguably unfair practices.  (Id. at p. 592, 199 Cal.Rptr. 635.)   The court reasoned:  “We have found no authority for the proposition that an employer's interpretation of a statute, whether correct or incorrect, which adversely affects the rights of its employees to wages [,] constitutes an unfair practice which should be left for the PERB to determine in the first instance.”  (Id. at pp. 592–593, 199 Cal.Rptr. 635.)

Pittsburg Unified School Dist. v. California School Employees Assn. (1985) 166 Cal.App.3d 875, 887, 213 Cal.Rptr. 34, cited the Azusa and Travis cases above in stating, “where the conduct of a party is claimed to violate a duty imposed under the Education Code[,] exhaustion of PERB remedies is not required.”   That case itself suggested teachers picketing the businesses of district governing board members were subject to immediate court injunction.   The teachers' conduct arguably violated an Education Code section prohibiting corruption of a board member.  (Id. at pp. 886, 888, 213 Cal.Rptr. 34.)   (The court subsequently held that this section was inapplicable.  (Id. at pp. 898–900, 213 Cal.Rptr. 34.))   The earlier teachers' strike cases were distinguished based on a “local concern exception” to the preemption doctrine of federal labor law.  (Id. at pp. 885–888, 213 Cal.Rptr. 34.)

The district seeks to distinguish the cases relied on by the teacher.   We agree that Pittsburg Unified School Dist. depends essentially on a set of different concerns about judicial intervention in strikes and the strikers' constitutional rights to speak and assemble freely and to petition the government.   However, we disagree that the other three cases “involve statutory interpretations that much more clearly imposed a mandatory duty upon the school districts in question.”   As we determined in part III of this opinion, Education Code sections 44949 and 44955 do mandate that school districts afford notice and a hearing to employees subject to partial termination through a reduction in hours and wages.   While the three cases do involve different duties which may have been clearer, they are no more mandatory.

The district also argues the teacher's cases are of questionable validity, because “[e]ach time the same issue has been considered by the California Supreme Court it has determined that PERB's remedies did indeed have to be exhausted.”   As previously noted, only one of the district's cases, McCammon, even discusses the exclusive jurisdiction provision of the EERA (§ 3541.5) and the Act's Education Code limitation (§ 3540).8  The other cases which have considered the Education Code limitation in connection with an alleged Education Code violation have held that the complaint need not first be brought to the PERB.  (Travis Unified School Dist., supra, 156 Cal.App.3d 242, 249–250, 202 Cal.Rptr. 699;  Wygant, supra, 168 Cal.App.3d 319, 323–325, 214 Cal.Rptr. 205.)

As petitioner argues, McCammon is distinguishable because she is not challenging any practice contained in the collective bargaining agreement, as we discuss more fully in section V of this opinion.   Moreover, its conclusion is questionable in at least two respects.   It fails to identify how the district committed an unfair practice under the EERA by misplacing a teacher on a salary schedule.   It also fails to recognize that rights mandated by the Education Code are nonnegotiable.  (San Mateo City School Dist., supra, 33 Cal.3d 850, 866, 191 Cal.Rptr. 800, 663 P.2d 523.)   Other courts have not deferred to the PERB in declaring void collective bargaining agreements to the extent they attempt to deprive school district employees of rights mandated by the Education Code.  (Jefferson Classroom Teachers Assn. v. Jefferson Elementary School Dist. (1982) 137 Cal.App.3d 993, 1000–1001, 187 Cal.Rptr. 542;  California Teachers' Assn. v. Parlier Unified School Dist. (1984) 157 Cal.App.3d 174, 183–184, 204 Cal.Rptr. 20.)   We cannot agree with the district that McCammon establishes the PERB's exclusive jurisdiction over a dispute when any feature of it might be characterized as involving an unfair practice.

 The school district reasons that a reduction in wages and hours is within the scope of the teacher's association's representation and that the teacher has alleged the arguable unfair practice of failing to negotiate.   The trial court erred in adopting this reasoning to sustain the demurrer.   While the test for the PERB's initial exclusive jurisdiction is ordinarily whether the challenged conduct is arguably prohibited or protected by the EERA, this test is not determinative if the challenged conduct violates mandatory Education Code provisions.  (Travis Unified School Dist., supra, 156 Cal.App.3d at p. 250, 202 Cal.Rptr. 699;  Wygant, supra, 168 Cal.App.3d at pp. 324–325, 214 Cal.Rptr. 205.)   At oral argument, the district conceded that the PERB does not have exclusive jurisdiction over terminations in violation of the Education Code.

 The district finally invokes the policy reasons underlying the preemption doctrine, such as the PERB's expertise, the need for consistency, and avoidance of unnecessary litigation.   These afford no reason for reading the Education Code limitation out of the EERA.   The Legislature obviously intended to guarantee certain rights to school employees in the Education Code, while allowing them to collectively bargain for other entitlements.   Where, as here, a violation of a mandatory Education Code provision is alleged, there is no requirement that the claim first be made to the PERB.

V

Was the Teacher Required To Attack the Arbitration Award or File a Record of Administrative Proceedings?

The school district also demurred on the basis that the teacher had failed to attack the arbitration award.

 A general demurrer may be sustained for failure to pursue an arbitration remedy when the claim is subject to arbitration.  (Cusenza v. Construction Design & Consulting, Inc. (1984) 157 Cal.App.3d 201, 203, 203 Cal.Rptr. 605;  see Charles J. Rounds Co. v. Joint Council of Teamsters No. 42 (1971) 4 Cal.3d 888, 899, 95 Cal.Rptr. 53, 484 P.2d 1397.)   However, the teacher has pursued her arbitration remedy as far as expressly allowed by the collective bargaining agreement.

 In any event, we see nothing in the collective bargaining agreement which pertains to the rights asserted by the teacher.   While the agreement does specify salary schedules and hours of employment, it does not address reduction or termination procedures.   The arbitrator found no violation of the agreement, consistent with its terms limiting him to its interpretation and limiting grievances to claims of its violation, misinterpretation, or misapplication.   The arbitrator could not have awarded the teacher relief for violation of any Education Code rights not covered in the agreement, so she was not required to pursue her claims of improper termination to arbitration.   (Azusa Unified School Dist., supra, 152 Cal.App.3d 580, 590–591, 199 Cal.Rptr. 635.)   Since no remedy was available through arbitration for her Education Code claims, this is not a case of election of an inconsistent remedy.  (Cf. Humes v. MarGil Ventures, Inc. (1985) 174 Cal.App.3d 486, 493–494, 220 Cal.Rptr. 186.)

 The district finally asserted as a ground of demurrer that the teacher failed to submit a record of the administrative proceedings without any authority suggesting a general demurrer can be sustained on this basis.   The district relies on cases holding that a challenge to an administrative decision for lack of evidentiary support cannot succeed if the challenger does not supply a record of the administrative proceedings.  (E.g., Feist v. Rowe (1970) 3 Cal.App.3d 404, 422, 83 Cal.Rptr. 465.)

The district's argument is based on the faulty premise that “[t]he instant proceeding must either be a review of an arbitrator's award seeking to vacate that award, or it must be a review of the Board's action regarding this matter below.”   In fact, this action challenging the district's interpretation of Education Code sections 44949 and 44955 is properly brought under Code of Civil Procedure section 1085.9  (Cf. Azusa Unified School Dist., supra, 152 Cal.App.3d 580, 589–590, 199 Cal.Rptr. 635.)   We are unaware from the petition of any administrative proceeding involved in the district's failure to afford the teacher notice and an opportunity for a hearing prior to her partial termination.   Consideration of any administrative record would be improper on demurrer since it is not incorporated into the petition.  (Kleiner v. Garrison (1947) 82 Cal.App.2d 442, 446–447, 187 P.2d 57.)   We do not perceive how an administrative record could assist resolution of the central statutory construction issue.   Its absence is certainly not a basis for general demurrer.

VI

The judgment is reversed with direction that the demurrer be overruled.   Petitioner/appellant is entitled to costs on appeal.

I respectfully dissent.

Education Code section 44955 deals expressly and only with “decrease [in] the number of permanent employees in the district” and “termination of services.”  (Emphasis added.)   I do not understand how that language can be tortured so as to encompass a reduction in the number of hours worked.   My position is bolstered by the statements of the Supreme Court in Thompson v. Modesto City High School Dist. (1977) 19 Cal.3d 620, 628, 139 Cal.Rptr. 603, 566 P.2d 237 that “Section 44955 only comes into play once the school district has decided to terminate the services of certain permanent employees ․” and again “Once the school district has determined a need to effect a reduction in the number of permanent employees, it must then comply with the procedures set forth in section 44955․”  (Emphasis added.)

If the challenged conduct of the District does not constitute a clear violation of the Education Code, it does not invoke the dispensation from exhaustion of PERB remedies set forth in the Pittsburg, Azusa, Travis & Wygant decisions cited by the majority.

I would affirm the judgment of dismissal.

FOOTNOTES

1.   Unspecified section references in part III of this opinion are to the Education Code.

2.   We note the version of section 44955 in effect during the omission complained of had no subdivision headings, though containing all of the text we discuss.  (Stats.1981, ch. 100, § 19, pp. 676–677.)   We refer to the subdivisions in the current statute for ease of reference.

3.   Section 44955, subdivision (b) provides in part, “the services of no permanent employee may be terminated under the provisions of this section while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render.”Section 44955, subdivision (c) provides in part, “[t]he governing board shall make assignments and reassignments in such a manner that employees shall be retained to render any service which their seniority and qualifications entitle them to render.”

4.   The version of section 44949 in effect during the omission complained of contained virtually identical provisions in subdivision (h) (Stats.1977, ch. 606, § 1, p. 1989) which have subsequently been eliminated.

5.   Unspecified section references in part IV of this opinion are to the Government Code.

6.   We note that a teachers' association may sue to collect unpaid dues (San Lorenzo Education Assn. v. Wilson (1982) 32 Cal.3d 841, 187 Cal.Rptr. 432, 654 P.2d 202), but a teacher's objection to the amount of the dues must be presented to the PERB.  (San Jose Teachers Assn., supra, 38 Cal.3d at pp. 860–863, 215 Cal.Rptr. 250, 700 P.2d 1252.)

7.   Though McCammon, supra, involved an alleged violation of the same Education Code section, it distinguished Wygant because “the offending policy was not contained in the collective bargaining agreement.”  (195 Cal.App.3d at p. 665, 241 Cal.Rptr. 1.)

8.   As already noted, Los Angeles Council of School Nurses, supra, 113 Cal.App.3d 666, 169 Cal.Rptr. 893, relied on by the district, did not discuss the EERA's Education Code limitation, though involving alleged Education Code violations.

9.   Were this proceeding one under Code of Civil Procedure section 1094.5, the short answer to the district's argument is that the statute allows for the administrative record to be filed either “with the petition, or by the respondent after payment of the costs by the petitioner, where required, or as otherwise directed by the court.”   (Code Civ.Proc., § 1094.5, subd. (a).)

AGLIANO, Presiding Justice.

CAPACCIOLI, J., concurs.