Rialto Unified School District (PERB 0209E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
RIALTO 	EDUCATION 	ASSOCIATION, 	CTA/NEA,
Charging 	Party,
V •
RIALTO 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
)
)
}
)
)
)
)
)
)
----------------------
Case 	No. 	LA-CE-218
PERB 	Decision No. 	209
April 	30, 	1982
Appearances: 	Edward 	B. 	Hogenson, 	Executive 	Director 	for 	Rialto
Education 	Association, 	CTA/NEA.
Before 	Gluck, 	Chairperson; 	Jaeger, 	Moore 	and 	Tovar, 	Members.
DECISION
This 	case 	comes 	before 	the 	Public 	Employment 	Relations
Board 	(hereafter 	PERB 	or 	Board) 	on 	exceptions 	filed 	by 	the
Rialto 	Education 	Association, 	CTA/NEA 	(hereafter 	Association 	or
Charging 	Party) 	to 	the 	proposed 	decision. 	The 	hearing 	officer
held 	that 	the 	Rialto 	Unified 	School 	District 	(hereafter
District) 	had 	not 	committed 	an 	unfair 	practice 	in 	violation 	of
subsections 	3543. 5 (a), 	(b) 	and 	(c) 	of 	the 	Educational
Employment 	Relations 	Actl 	(hereafter 	EERA 	or 	the 	Act). 	The
Association 	asserts 	by 	its 	exceptions 	that 	the 	District
unilaterally 	transferred 	work 	out 	of 	the 	certificated 	unit 	and
1 The 	EERA 	is 	codified 	at 	Government 	Code 	sections 	3540
et 	seq. 	Hereafter, 	all 	statutory 	references 	are 	to 	the

required 	that 	it 	be 	performed 	by 	members 	of 	the 	classified
unit, 	contending 	that 	such 	conduct 	violates 	the 	District's 	duty
to 	negotiate 	in 	good 	faith 	during 	the 	term 	of 	the 	collective
agreement. 	As 	a 	further 	ground 	for 	finding 	a 	District
violation 	of 	its 	duty 	to 	negotiate 	in 	good 	faith, 	the
Association 	argues 	that 	the 	District 	refused 	to 	disclose
information 	essential 	to 	the 	Association's 	performance 	of 	its
negotiating 	function. 	Additionally, 	the 	Association 	excepts 	to
the 	denial 	of 	its 	motion, 	made 	subsequent 	to 	the 	issuance 	of
the 	proposed 	decision, 	that 	the 	proceeding 	be 	reopened 	for
purpose 	of 	introducing 	additional 	evidence.
The 	Board 	finds, 	contrary 	to 	the 	hearing 	officer, 	that 	the
District's 	unilateral 	transfer 	of 	work 	out 	of 	the 	certificated
unit 	was 	in 	violation 	of 	its 	duty 	to 	negotiate 	in 	good 	faith 	as
Government 	Code 	unless 	otherwise 	stated. 	Section 	3543.5 	states
in 	pertinent 	part:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
2

required 	by 	subsection 	3543.S(c) 	and 	that 	such 	conduct 	gives
rise 	to 	a 	concurrent 	violation 	of 	subsections 	3543.S(a)
and 	(b). 	Consequently, 	the 	hearing 	officer's 	holding 	to 	the
contrary 	is 	reversed. 	However, 	the 	Board 	finds 	that 	a 	separate
unfair 	practice 	was 	not 	proven 	by 	reason 	of 	the 	District's
alleged 	refusal 	to 	disclose 	information 	to 	the 	Association; 	nor
does 	the 	Board 	find 	merit 	in 	the 	Association's 	claim 	that
reopening 	the 	hearing 	record 	is 	warranted. 	The 	hearing
officer's 	holding 	is 	affirmed 	in 	both 	respects.
FACTS
The 	hearing 	officer's 	procedural 	history 	and 	findings 	of
fact 	contained 	in 	the 	attached 	proposed 	decision 	are
substantially 	correct 	and 	are 	adopted 	by 	the 	Board 	itself.
DISCUSSION
EERA 	section 	3543.32 	requires 	an 	employer 	to 	meet 	and
negotiate 	with 	the 	exclusive 	representative 	in 	good 	faith
concerning 	matters 	within 	the 	scope 	of 	representation. 	Section
2section 	3543.3 	states:
A public 	school 	employer 	or 	such
representatives 	as 	it 	may 	designate 	who 	may,
but 	need 	not 	be, 	subject 	to 	either
certification 	requirements 	or 	requirements
for 	classified 	employees 	set 	forth 	in 	the
Education 	Code, 	shall 	meet 	and 	negotiate
with 	and 	only 	with 	representatives 	of
employee 	organizations 	selected 	as 	exclusive
representatives 	of 	appropriate 	units 	upon
request 	with 	regard 	to 	matters 	within 	the
scope 	of 	representation.
3

3543.2 	defines 	scope 	of 	representation.3 	An 	employer 	commits
an 	unfair 	practice 	when 	it 	unilaterally 	initiates 	a 	change 	in
terms 	and 	conditions 	of 	employment 	within 	the 	scope 	of
representation 	without 	notifying 	and 	affording 	the 	employee
organization 	an 	opportunity 	to 	negotiate. 	Pajaro Valley
Unified 	School 	District 	{5/22/78) 	PERB 	Decision 	No. 	51; 	San
Mateo 	County 	Community 	College 	District 	(6/8/79) 	PERB 	Decision
No. 	94; 	San 	Francisco Community 	College 	District 	(10/12/79)
PERB 	Decision 	No. 	105.
Duty 	to 	Negotiate.
The 	District 	initiated 	a 	plan 	to 	remove 	work 	from 	the
attendence 	counselors 	in 	the 	certificated 	unit 	and 	have 	it
performed 	by 	persons 	in 	the 	classified 	unit. 	A large
proportion 	of 	the 	duties 	assigned 	to 	the 	new 	positions 	was
formerly 	performed 	by 	counselors 	within 	the 	certificated 	unit.
While 	the 	number 	of 	employees 	in 	the 	certificated 	unit 	at
3section 	3543.2 	states 	in 	relevant 	part:
(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
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 ••.. 4

Eisenhower 	High 	School 	and 	Frisbee 	Junior 	High 	School,
respectively, 	was 	not 	reduced, 	the 	attendance 	counselor
position 	was 	eliminated 	and 	the 	certificated 	incumbent 	became 	a
regular 	counselor 	at 	Eisenhower.
There 	is 	no 	question 	that 	the 	District 	took 	the
above-referenced 	action 	unilaterally. 	Repeated 	efforts 	by 	the
Association 	to 	negotiate 	over 	the 	transfer 	of 	unit 	work 	were
met 	by 	the 	District's 	steadfast 	assertion 	that 	it 	had 	no
obligation 	to 	discuss 	its 	course 	of 	conduct. 	The 	issue 	here 	is
whether 	the 	act 	of 	transferring 	duties 	out 	of 	the 	negotiating
unit 	falls 	within 	the 	EERA's 	scope 	of 	representation.
In 	interpreting 	section 	3543.2, 	supra, 	we 	note 	at 	the
outset 	that 	it 	does 	not 	state 	with 	specificity 	which 	matters
are 	within 	the 	scope 	of 	representation 	and 	which 	matters 	are
beyond 	scope. 	Thus, 	while 	section 	3543.2 	specifically
enumerates 	terms 	and 	conditions 	of 	employment, 	"matters
relating 	to" 	wages, 	hours 	and 	the 	enumerated 	terms 	and
conditions 	of 	employment 	are 	also 	within 	scope.
The 	responsibility 	for 	determining 	whether 	a 	matter 	is
within 	scope 	has 	been 	entrusted 	to 	this 	Board 	by 	the
Legislature.4
4section 	3541.3(b) 	provides:
The 	Board 	shall 	have 	all 	of 	the 	following
powers 	and 	duties:
(b) 	To 	determine 	in 	disputed 	cases 	whether 	a
5

In 	determining 	whether 	a 	subject 	is 	negotiable 	as 	a 	matter
"related 	to" 	an 	expressly 	listed 	subject, 	the 	Board 	applies 	the
following 	test: 	a 	subject 	is 	negotiable 	even 	though 	not
specifically 	enumerated 	if 	(1) 	it 	is 	logically 	and 	reasonably
related 	to 	hours, 	wages 	or 	an 	enumerated 	term 	and 	condition 	of
employment, 	(2) 	the 	subject 	is 	of 	such 	concern 	to 	both
management 	and 	employees 	that 	conflict 	is 	likely 	to 	occur 	and
the 	mediatory 	influence 	of 	collective 	negotiations 	is 	the
appropriate 	means 	of 	resolving 	the 	conflict, 	and 	(3) 	the
employer's 	obligation 	to 	negotiate 	would 	not 	significantly
abridge 	his 	freedom 	to 	exercise 	those 	managerial 	prerogatives
(including 	matters 	of 	fundamental 	policy) 	essential 	to 	the
achievement 	of 	the 	District's 	mission. 	Anaheim Union 	High
School 	District 	(10/28/81) 	PERB 	Decision 	No. 	177.
The 	decision 	to 	transfer 	work 	from 	one 	unit 	to 	another
affects 	the 	wages, 	hours 	and 	working 	conditions 	of 	employees 	in
the 	former 	unit. 	Actual 	or 	potential 	work 	is 	withdrawn 	from
negotiating 	unit 	employees 	when 	such 	work 	is 	transferred 	out 	of
that 	negotiating 	unit 	to 	employees 	in 	another 	unit 	in 	the
employer's 	workforce. 	Wages 	and 	hours 	associated 	with 	the
transferred-out 	work 	are 	similarly 	withdrawn.
In 	addition 	to 	these 	effects, 	diminution 	of 	unit 	work 	by
transferring 	functions 	weakens 	the 	collective 	strength 	of
particular 	item 	is 	within 	or 	without 	the
scope 	of 	representation.
6

employees 	in 	the 	unit 	and 	their 	ability 	to 	deal 	effectively
with 	the 	employer 	and 	can 	affect 	the 	viability 	of 	the 	unit
itself. 	Such 	impact 	affects 	the 	work 	hours 	and 	conditions, 	and
thus 	is 	logically 	and 	reasonably 	related 	to 	specifically
enumerated 	subjects 	within 	the 	scope 	of 	representation.
v. 	NLRB 	(General Motors) 	(D.C 	Cir., 	1967) 	381 	F.2d 	265 	[64 	LRRM
2489] •
International 	Harvester 	(1976) 	227 	NLRB 	85 	and 	American
Needle 	and 	Novelty 	Co. 	(1973) 	206 	NLRB 	534 	citing 	Fibreboard,
supra, 	held 	that 	the 	transfer 	of 	jobs 	from 	the 	bargaining 	unit
to 	non-unit 	employees, 	with 	an 	adverse 	impact 	on 	the 	unit
employees, 	imposed 	on 	the 	employer 	the 	obligation 	to 	negotiate
the 	decision 	to 	relocate 	the 	jobs, 	In UAW 	v. 	NLRB, 	supra, 	the
United 	States 	Circuit 	Court 	found 	this 	obligation 	to 	exist 	even
though 	the 	affected 	employees 	were 	assigned 	other 	unit 	work 	and
there 	was 	no 	demonstrable 	change 	in 	their 	wages 	or 	hours. 	The
Court 	reasoned 	that 	the 	reduction 	of 	the 	whole 	number 	of 	jobs
within 	the 	unit 	itself 	triggered 	the 	bargaining 	obligation.
This 	holding 	is 	appropriate 	to 	the 	facts 	here. 	The 	loss 	of 	the
counseling 	jobs 	precludes 	negotiations 	over 	wages, 	hours, 	and
negotiable 	terms 	and 	conditions 	of 	employment 	for 	work 	assigned
to 	the 	representation 	unit 	pursuant 	to 	CTA's 	unit 	petition 	and
subsequent 	recognition 	by 	the 	District.
The 	first 	part 	of 	the 	test 	having 	been 	answered 	in 	the
affirmative, 	the 	Board 	proceeds 	to 	the 	considerations 	involved
in 	the 	balancing 	test.
7

The 	Board 	observes 	that 	the 	unilateral 	transfer 	of 	work 	can
create 	a 	conflict 	between 	the 	employer 	and 	its 	employees. 	The
record 	evidenced 	disruption 	of 	the 	work 	pattern 	in 	that
attendance 	counseling 	work 	continued 	to 	be 	performed 	by
classified 	employees 	in 	the 	presence 	of 	the 	certificated 	staff
who 	had 	formerly 	performed 	that 	function. 	The 	elimination 	of
unit 	positions 	denied 	to 	the 	remaining 	certificated 	employees
the 	opportunity 	to 	move 	into 	the 	attendance 	counselor
position. 	Additionally, 	the 	viability 	and 	effectiveness 	of 	the
employee 	organization 	is 	adversely 	affected 	by 	diminution 	of
the 	unit. 	See 	UAW 	v. 	NLRB 	(General 	Motors), 	supra.
Negotiations 	that 	allowed 	for 	the 	possibility 	of 	tradeoffs
and 	concessionsr 	as 	well 	as 	suggestions 	of 	alternate 	means 	of
accomplishing 	the 	District's 	cost-reduction 	objectives 	in 	this
case, 	may 	have 	provided 	opportunity 	for 	the 	interests 	of 	both
the 	employer 	and 	the 	employees 	to 	be 	accommodated. 	The
unilateral 	withdrawal 	of 	work 	from 	the 	unit 	followed 	by 	its
placement 	in 	another 	unit 	may, 	as 	well, 	be 	expected 	to 	have 	a
destabilizing 	influence 	on 	labor 	relations 	in 	the 	District
because 	of 	a 	loss 	of 	the 	organization's 	credibility 	and
viability.
The 	District 	would 	not 	have 	surrendered 	central 	managerial
prerogatives 	had 	it 	negotiated 	with 	the 	Association 	before
transferring 	work 	out 	of 	the 	unit. 	The 	decision 	itself 	was 	not
one 	which 	is 	central 	or 	essential 	to 	the 	District's 	obligation
8

to 	run 	its 	operation 	or 	deliver 	educational 	services.
Therefore, 	negotiations 	over 	this 	matter 	would 	not 	have
abridged 	the 	District's 	freedom 	to 	exercise 	managerial
prerogatives 	essential 	to 	its 	mission. 	San 	Mateo 	County
Community 	College 	District 	and 	San 	Francisco Community 	College
District, 	supra.
The 	NLRB, 	in 	OPEIU, 	supra, 	described 	some 	of 	the 	effects 	of
the 	employer's 	unilateral 	decision 	to 	transfer 	unit 	work:
There 	is 	no 	assurance 	that 	these 	jobs 	will
continue 	to 	be 	filled 	in 	the 	future 	through
assignment 	of 	unit 	employees. 	Once 	the
employee 	is 	assigned 	to 	the 	[new 	positions]
he 	[sic] 	is 	in 	fact 	no 	longer 	included 	in
the 	unit; 	the 	work 	of 	the 	unit 	is 	clearly
diminished 	to 	this 	extent; 	and 	the
opportunity 	to 	share 	in 	the 	benefits
provided 	by 	participation 	in 	work 	carrying
higher 	pay 	and 	wider 	opportunity 	is 	lost 	to
the 	employee 	in 	the 	unit •... 	A failure
to 	enforce 	the 	[bargaining] 	order 	could 	lead
to 	the 	eventual 	whittling 	away 	of 	the 	union
by 	the 	Company 	through 	numerous, 	small
function 	assignments 	until 	no 	work 	is 	left
for 	the 	Union-represented 	employees. 	Office
and 	Professional 	Employees 	Union 	(1967) 	68
NLRB 	677 	[67 	LRRM 	1029j.
Although 	this 	case 	differs 	factually 	from 	OPIEU 	in 	that
employees 	as 	well 	as 	work 	were 	transferred 	in 	that 	case, 	the
ultimate 	impact 	of 	the 	employer's 	decision 	in 	OPIEU 	and 	the
case 	before 	us 	is 	loss 	of 	work 	to 	the 	unit.5
5Generally 	under 	NLRA, 	if 	an 	employer's 	decision 	to
transfer 	work 	out 	of 	the 	bargaining 	unit 	has 	an 	demonstrable
adverse 	impact 	on 	employment 	conditions 	of 	unit 	employees, 	that
decision 	is 	subject 	to 	the 	mandatory 	negotiation 	requirement.
Westinghouse 	Electric 	Corporation 	(1965) 	150 	NLRB 	1574 	(58 	LRRM
9

In 	conclusion, 	the 	employer's 	unilateral 	removal 	of 	work
from 	the 	negotiating 	unit 	without 	meeting 	and 	negotiating 	with
the 	exclusive 	representative 	constituted 	a 	violation 	of
subsections 	3543.S(b) 	and 	3543.S(c) 	of 	the 	Act. 	See
San 	Francisco Community 	College 	District, 	supra. 	The 	same
conduct 	that 	denied 	to 	the 	employee 	organization 	rights
provided 	in 	the 	EERA, 	also 	constituted 	a 	concurrent 	deprivation
of 	the 	right 	of 	employees 	to 	representation 	on 	matters 	relating
to 	terms 	and 	conditions 	of 	employment, 	thereby 	violating
section 	3543.S(a). 	San 	Francisco Community 	College 	District,
supra; 	Oakland 	Unified 	School 	District 	(4/23/80) 	PERB 	Decision
No. 	126. 	The 	hearing 	officer 	accordingly 	is 	hereby 	overruled
with 	respect 	to 	his 	dismissal 	of 	the 	subsections 	3543.S(a), 	(b)
and 	(c) 	charges.
1257]; 	Office 	and 	Professional 	Employees 	v. 	NLRB 	(D.C. 	Cir.
1969) 	419 	F.2d 	314 	[70 	LRRM 	3047] 	enf;d. 	168 	NLRB 	677 	[67 	LRRM
1029); 	American 	Needle 	and 	Novelty 	Co. 	(1975) 	217 	NLRB 	730 	[89
LRRM 	1224], 	enf 1 d 	(6th 	Cir. 	1977) 	547 	F.2d 	138 	[94 	LRRM 	3152].
In 	these 	and 	other 	cases 	decided 	under 	the 	NLRA, 	a 	showing 	of
significant 	adverse 	impact 	was 	a 	prerequisite 	to 	finding 	a
violation. 	In 	General 	Motors, 	supra, 	the 	D.C. 	Circuit 	Court
found 	that 	the 	diminution 	of 	the 	unit 	by 	the 	loss 	of 	whole 	jobs
constitutes 	a 	significant 	impact 	on 	the 	unit 	and 	thus 	rendered
the 	decision 	negotiable. 	We 	find 	the 	General 	Motors 	rationale
applicable 	here. 	We 	also 	note 	that 	"demonstrable" 	and
"significant" 	are 	used 	interchangeably 	by 	the 	NLRB. 	We 	do 	as
well.
10

Duty 	to 	Disclose 	Information
We 	note 	that 	the 	Association 	alleges 	by 	its 	exceptions 	that
the 	District 	failed 	to 	comply 	with 	its 	duty 	to 	disclose
information.6 	This 	allegation, 	raised 	for 	the 	first 	time 	by
the 	Association's 	exceptions, 	is 	not 	in 	fact 	a 	charge 	that 	the
District 	failed 	to 	disclose 	information 	but 	is 	rather 	a
restatement 	in 	different 	form 	of 	the 	Association's 	allegation
that 	the 	Association 	was 	provided 	with 	misleading 	information
by 	the 	District.
We 	dismiss 	the 	Association's 	exception. 	The 	Association
does 	not 	allege 	in 	its 	charge 	nor 	does 	the 	record 	reflect 	that
the 	alleged 	miscommunication 	lulled 	it 	into 	believing 	that 	the
District 	had 	withdrawn 	its 	unilateral 	action 	or 	that 	the
Association 	was 	thereby 	prevented 	from 	fulfilling 	its
representational 	function.?
6The 	obligation 	to 	produce 	information 	is 	described 	as
that 	of 	providing 	"information 	that 	is 	needed 	by 	the 	bargaining
representative 	for 	the 	proper 	performance 	of 	its 	duties." 	See
NLRB 	v. 	Acme 	Industrial 	Company 	(1967) 	385 	U.S. 	435, 	436 	(64
LRRM 	2069).
7According 	to 	the 	testimony 	of 	Association 	witness
Wiefels, 	the 	District 	representative 	stat~d: 	first, 	that 	the
changes 	complained 	of 	were 	not 	to 	take 	place 	because 	they 	had
been 	"squashed"; 	second, 	that 	the 	course 	of 	conduct 	would 	not
involve 	the 	assignment 	of 	new 	responsibilities; 	and 	third, 	that
the 	certificated 	staff 	was 	not 	to 	be 	decreased 	as 	a 	result 	of
the 	reassignment 	of 	duties. 	As 	noted 	by 	the 	hearing 	officer,
there 	was 	conflict 	in 	the 	testimony 	concerning 	the 	implications
to 	be 	drawn 	from 	these 	statements. 	The 	District
representative's 	letter 	to 	the 	Association 	president 	on
January 	19, 	1978, 	as 	well 	as 	the 	school 	board 	agenda 	published
11

Motion 	to 	Reopen 	Hearing
The 	Association 	filed 	a 	motion 	to 	reopen 	the 	record 	on
December 	26, 	1978 	in 	response 	to 	the 	proposed 	decision 	of 	the
hearing 	officer 	issued 	on 	December 	6, 	1978. 	The 	evidence
relied 	upon 	by 	the 	hearing 	officer 	in 	his 	decision 	was 	obtained
at 	the 	hearing 	on May 	9, 	1978, 	which 	took 	place 	prior 	to, 	and
therefore 	did 	not 	include, 	the 	subsequent 	reassignment 	and
transfer 	of 	counselors 	to 	a 	classroom 	position 	for 	one 	period
per 	day 	as 	alleged 	in 	the 	Association's 	motion 	to 	reopen.
The 	reasons 	why 	the 	Charging 	Party 	neglected 	to 	move 	for 	an
opening 	of 	the 	case 	while 	it 	was 	under 	submission 	to 	the
hearing 	officer 	are 	not 	disclosed. 	It 	could 	be 	argued 	that 	the
Association 	should 	have 	made 	its 	motion 	earlier, 	since 	the 	new
evidence 	was 	available 	in August 	while 	the 	case 	was 	under
submission 	at 	the 	hearing 	officer 	level. 	However, 	we 	have
found 	the 	District's 	conduct 	to 	constitute 	a 	violation 	of
subsection 	3543.S(c) 	even 	without 	the 	proffered 	evidence 	of 	an
alleged 	subsequent 	reassignment 	and 	transfer. 	Thus, 	the
evidence 	is 	not 	crucial 	to 	the 	finding 	of 	an 	unfair 	practice
and 	it 	is 	therefore 	unnecessary 	to 	reopen 	the 	record.
January 	20, 	1978, 	indicated 	that 	individuals 	would 	be 	hired 	to
fill 	the 	two 	newly-created 	positions 	and 	that 	the 	District
remained 	steadfast 	in 	its 	belief 	that 	it 	had 	no 	obligation 	to
negotiate 	over 	the 	matter. 	Both 	communications 	were 	made
subsequent 	to 	the 	date 	of 	the 	alleged 	misrepresentations.
12

REMEDY
Subsection 	3541.S(c) 	of 	the 	EERA 	grants 	PERB 	broad 	powers
to 	remedy 	unfair 	practices. 	Pursuant 	to 	this 	authority, 	we 	may
fashion 	appropriate 	remedies 	to 	effectuate 	the 	purposes 	and
policies 	of 	the 	EERA. 	In 	the 	present 	case, 	we 	have 	found 	that
the 	District 	transferred 	attendance 	counseling 	work 	out 	of 	the
certificated 	unit 	without 	first 	satisfying 	its 	duty 	to
negotiate 	with 	the 	Association. 	This 	is 	a 	serious 	infringement
of 	employee 	rights, 	as 	it 	denies 	the 	exclusive 	representative
the 	opportunity 	to 	present 	and 	negotiate 	alternatives 	to 	the
District's 	action, 	and 	to 	negotiate 	over 	the 	effects 	of 	the
transfer 	of 	work. 	It 	is 	generally 	appropriate 	under 	these
circumstances 	to 	order 	a 	return 	to 	the 	status 	quo 	and 	order 	the
District 	to 	meet 	and 	negotiate, 	upon 	request, 	over 	the 	decision
and 	effect 	of 	the 	transfer 	of 	work, 	to 	cease 	and 	desist 	from
taking 	any 	further 	unilateral 	actions 	regarding 	matters 	within
scope, 	and 	to 	make 	employees 	whole 	for 	any 	compensation 	lost 	as
a 	result 	of 	the 	District's 	unlawful 	conduct. 	However, 	we 	are
reluctant 	to 	order 	a 	restoration 	of 	the 	status 	quo 	ante 	in 	this
case. 	We 	note 	that 	new 	employees 	were 	hired 	and 	have 	been
working 	in 	the 	newly 	created 	positions 	since 	1978. 	If 	the
District 	were 	required 	to 	transfer 	the 	attendance 	supervising
work 	back 	to 	the 	certificated 	unit, 	it 	might 	be 	required 	to 	lay
off 	these 	employees. 	Furthermore, 	the 	District 	would 	have 	to
either 	hire 	additional 	counselors 	to 	perform 	attendance 	work,
13

divert 	existing 	counselors 	from 	counseling 	to 	attendance
duties, 	or 	eliminate 	attendance 	supervision. 	If 	the 	District
then 	proceeded, 	after 	exhausting 	its 	duty 	to 	negotiate, 	to
create 	classified 	attendance 	supervisor 	positions, 	it 	could
entail 	layoff 	of 	any 	newly 	hired 	counselors 	and 	new 	hiring 	of
attendance 	supervisors. 	The 	above-described 	personnel 	and
service 	arrangements 	and 	rearrangements 	would 	amount 	to
considerable 	inconvenience 	for 	the 	District 	and 	would 	also 	work
to 	the 	detriment 	of 	newly 	hired 	classified 	employees 	who 	were
not 	responsible 	for 	the 	unfair 	practice. 	These 	consequences
outweigh 	the 	harm 	caused 	to 	the 	exclusive 	representative 	and
the 	employees 	in 	this 	case. 	In 	particular, 	significant
dislocation 	and 	disruption 	of 	employee 	service 	could 	result.
Based 	on 	the 	above, 	we 	conclude 	it 	would 	be 	inappropriate
to 	require 	restoration 	of 	the 	status 	quo 	ante, 	especially
where, 	as 	here, 	there 	is 	no 	finding 	that 	the 	District's
transfer 	of 	the 	attendance 	function 	was 	for 	discriminatory
reasons.
However, 	we 	do 	find 	it 	appropriate 	to 	require 	the 	District
to 	reimburse 	any 	employees 	who 	suffered 	loss 	of 	compensation 	as
a 	result 	of 	the 	District's 	unilateral 	action 	and 	failure 	to
negotiate. 	Although 	there 	was 	no 	evidence 	presented 	at 	the
hearing 	proving 	that 	any 	certificated 	employees 	suffered 	loss
of 	wages, 	we 	note 	that 	the 	Association 	requested 	PERB 	to 	reopen
the 	record 	to 	take 	new 	evidence 	regarding 	adverse 	impact 	of 	the
14

unilateral 	action 	on 	unit 	employees. 	Such 	evidence 	may 	be
appropriately 	presented 	at 	a 	compliance 	proceeding, 	if 	the
Association 	wishes 	to 	prove 	that 	the 	District's 	unilateral
action 	resulted 	in 	loss 	of 	compensation 	to 	unit 	employees. 	The
District 	shall 	also 	be 	required 	to 	sign 	and 	post 	the 	Notice 	to
Employees 	which 	is 	attached 	to 	this 	Decision 	and 	Order.
ORDER
Pursuant 	to 	subsection 	3541.S(c) 	and 	based 	upon 	the
foregoing 	findings 	of 	fact, 	conclusions 	of 	law, 	and 	the 	entire
record 	in 	the 	case, 	the 	Public 	Employment 	Relations 	Board
hereby 	ORDERS 	that 	the 	Rialto 	Unified 	School 	District 	shall:
A. 	CEASE 	AND 	DESIST 	FROM VIOLATING 	SUBSECTIONS 	3543.S(a), 	(b)
AND 	(c) 	BY:
1) 	Making 	unilateral 	changes 	in 	the 	terms 	and 	conditions
of 	employment 	in 	the 	unit 	described 	herein 	above, 	without 	prior
notice 	to 	the 	Association 	and 	without 	providing 	an 	opportunity
to 	negotiate, 	with 	particular 	reference 	to 	transferring 	unit
work.
2) 	Denying 	the 	Association 	its 	rights 	to 	represent 	unit
members 	by 	failing 	and 	refusing 	to 	meet 	and 	negotiate 	about
transfer 	of 	unit 	work.
3) 	Interfering 	with 	employees 	because 	of 	their 	exercise 	of
their 	right 	to 	select 	an 	exclusive 	representative 	to 	meet 	and
negotiate 	with 	the 	employer 	on 	their 	behalf 	by 	unilaterally
15

transferring 	unit 	work, 	when 	such 	action 	affects 	matters 	within
the 	scope 	of 	representation, 	without 	offering 	to 	the 	exclusive
representative 	the 	opportunity 	for 	meeting 	and 	negotiating.
B. 	THE 	BOARD 	FURTHER ORDERS 	THE 	DISTRICT 	TO 	TAKE 	THE 	FOLLOWING
AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO 	EFFECTUATE 	THE 	POLICIES 	OF 	THE
EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	ACT.
1) 	Upon 	request 	of 	the 	Association, 	meet 	and 	negotiate
with 	the 	Association 	over 	the 	effects 	of 	transferring 	of
attendance 	counseling 	work 	out 	from 	the 	certificated 	unit.
2) 	Make 	whole 	any 	certificated 	employees 	for 	any 	loss 	of
compensation, 	plus 	interest 	at 	the 	rate 	of 	7 	percent 	per 	annum,
which 	they 	suffered 	as 	a 	result 	of 	the 	District's 	transferring
work 	from 	the 	certificated 	unit 	to 	the 	classified 	service,
Such 	reimbursement 	is 	to 	run 	from 	the 	date 	the 	unit 	work 	was
transferred 	until 	the 	occurrence 	of 	the 	earliest 	of 	the
following 	events: 	(1) 	the 	date 	the 	District 	negotiates 	to
agreement 	with 	the 	Association 	on 	matters 	pertaining 	to 	the
effects 	of 	transferring 	of 	certificated 	unit 	work, 	(2) 	a 	bona
fide 	impasse 	in 	negotiating, 	(3) 	the 	failure 	of 	the 	Association
to 	request 	to 	negotiate 	within 	five 	days 	of 	service 	of 	this
Decision, 	or 	to 	commence 	negotiations 	within 	five 	days 	of 	the
District's 	notice 	of 	its 	desire 	to 	negotiate 	with 	the
Association 	or, 	(4) 	the 	subsequent 	failure 	of 	the 	Association
to 	negotiate 	in 	good 	faith.
16

3) 	Post 	at 	all 	school 	sites, 	and 	all 	other 	work 	locations
where 	notices 	to 	employees 	customarily 	are 	placed, 	within 	five
workdays 	of 	service 	thereof, 	copies 	of 	the 	Notice 	attached 	as
an 	appendix 	hereto. 	Such 	posting 	shall 	be 	maintained 	for 	a
period 	of 	30 	consecutive 	workdays. 	Reasonable 	steps 	shall 	be
taken 	to 	insure 	that 	said 	notices 	are 	not 	reduced 	in 	size,
altered, 	defaced 	or 	covered 	by 	any 	other 	material.
4) 	Notify 	the 	Los 	Angeles 	regional 	director 	of 	the 	Public
Employment 	Relations 	Board, 	in 	writing, 	within 	20 	calendar 	days
of 	service 	of 	this 	decision, 	of 	what 	steps 	the 	District 	has
taken 	to 	comply 	herewith.
This 	ORDER 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the 	Rialto 	Unified 	School 	District.
John 	Jaeger, 	Member 	Barbara 	D. 	Moore, 	Member
Chairperson 	Cluck's 	concurrence 	and 	dissent 	begins 	on
page 	180
17

Harry 	Gluck, 	Chairperson, 	concurring 	and 	dissenting:
I 	am 	in 	substantial 	agreement 	with 	the 	majority's
decision. 	However, 	I 	disagree 	with 	the 	remedy 	ordered.
PERB's 	remedial 	powers 	are 	granted 	in 	order 	that 	the
purposes 	of 	the 	Act 	be 	effectuated. 	Thus, 	remedies 	should
address 	the 	harm 	that 	results 	from 	unlawful 	conduct. 	Here, 	the
harm 	is 	the 	adverse 	impact 	on 	the 	employees' 	wages, 	hours, 	and
conditions 	of 	work 	resulting 	from 	a 	loss 	of 	specific 	jobs 	to
the 	bargaining 	unit, 	jobs 	which 	they 	had 	performed. 	Yet 	the
remedy 	does 	nothing 	to 	restore 	those 	jobs. 	Moreover, 	it
precludes 	their 	restoration 	even 	through 	the 	ordered
negotiations. 	The 	diminution 	of 	the 	unit, 	for 	which 	the
majority 	expresses 	concern, 	will 	remain 	and 	it 	is 	difficult 	to
envision 	any 	solution 	negotiated 	under 	the 	majority's
limitations 	which 	would 	amount 	to 	more 	than 	a 	short-term
compensation 	for 	a 	permanently 	continuing 	effect 	of 	an 	unlawful
unilateral 	act. 	The 	weakness 	of 	the 	remedy 	is 	emphasized 	by
the 	majority's 	reference 	to 	the 	possible 	continuous 	erosion 	of
the 	representation 	unit 	by 	a 	series 	of 	small 	job 	transfers.
(p. 	8.) 	Although 	I 	agree 	that 	the 	mid-term 	restoration 	of
status 	quo 	ante 	would 	work 	an 	exceptional 	hardship 	on 	the
District 	and 	the 	classified 	employees 	to 	whom 	the 	work 	was
transferred, 	the 	Board's 	Order 	should 	have 	required 	such 	relief
at 	the 	start 	of 	a 	later 	semester 	barring 	some 	alternatively
18

1negotiated 	solution. 	Otherwise, 	I 	concur 	with 	the
majority's 	reasoning 	and 	conclusions.
/}
lsee 	Transmarine 	Navigation 	(1968) 	170 	NLRB 	389, 	where
even 	though 	the 	decision 	to 	lay 	off 	was 	not 	negotiable, 	the
NLRB 	ordered 	limited 	backpay 	to 	"recreate 	in 	some 	practicable
manner 	a 	situation 	in 	which 	the 	parties' 	bargaining 	position 	is
not 	entirely 	devoid 	of 	economic 	consequences 	for 	the
[employer]." 	Id. 	p. 	390.
19

APPENDIX
NOTICE 	TO 	ALL 	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-218, 	in
which 	all 	parties 	had 	the 	right 	to 	participate, 	it 	has 	been
found 	that 	the 	Rialto 	Unified 	School 	District 	violated
subsections 	3543. 5 (a), 	(b), 	and 	(c) 	of 	the 	Educational
Employment 	Relations 	Act.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post
this 	Notice, 	and 	will 	abide 	by 	the 	following:
We 	will 	cease 	and 	desist 	from 	denying 	the 	rights 	of 	the
Rialto 	Education 	Association 	and 	interfering 	with 	the 	rights 	of
employees 	by 	refusing 	to 	meet 	and 	negotiate 	with 	the 	Rialto
Education 	Association 	concerning 	a 	matter 	within 	the 	scope 	of
representation, 	to 	wit, 	the 	transferring 	out 	of 	unit 	work.
We 	will 	meet 	and 	negotiate 	upon 	request 	of 	the 	Association
over 	the 	impact 	and 	effects 	of 	the 	transfer 	of 	work 	formerly
performed 	by 	employees 	in 	the 	certificated 	unit.
We 	will 	make 	whole 	any 	certificated 	employees 	for 	any 	loss
of 	compensation 	they 	suffered 	as 	a 	result 	of 	the 	District's
transferring 	work 	from 	the 	certificated 	unit 	to 	the 	classified
service.
RIALTO 	UNIFIED 	SCHOOL 	DISTRICT
Dated: 	By:
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTIC.E. 	IT MUST 	REMAIN 	POSTED 	FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST 	NOT
BE 	REDUCED 	IN 	SIZE, 	ALTERED, 	DEFACED, 	OR COVERED BY ANY 	OTHER
MATERIAL.

PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE OF 	CALIFORNIA
RIALTO 	EDUCATION 	ASSOCIATION,
Charging 	Party,
v.
RIALTO 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
___________________ )
Unfair 	Practice
Case 	No. 	LA-CE-218-77/78
PROPOSED 	DECISION
12/6/78
Appearances: 	Edward 	Hogenson, 	Attorney 	for 	Rialto 	Education
Association; 	Lee 	T. 	Paterson 	and 	Ronald 	C. 	Ruud, 	Attorneys 	(Paterson 	&
Taggart) 	for 	Rialto 	Unified 	School 	District.
Before 	Kenneth 	A. 	Perea, 	Hearing 	Officer.
STATEMENT OF 	THE CASE
The 	events 	preceding 	the 	administrative 	hearing 	before 	the
above-named 	hearing 	officer 	of 	the 	Public 	Employment 	Relations
Board 	(hereafter 	PERB) 	are 	summarized 	as 	follows:
(1) 	On 	February 	6, 	1978 	the 	Rialto 	Education 	Association
(hereafter 	Association) 	f.iled 	the 	above-captioned 	unfair
practice 	charge 	against 	the 	Rialto 	Unified 	School 	District
(hereafter 	District) 	alleging 	violation 	of 	sections 	3543,
1
3543.1, 	3543.S(a), 	(b) 	and 	(c).
(2) 	On 	February 	24, 	1978, 	the 	District 	timely 	filed 	a
Motion 	to 	Dismiss 	and 	Answer 	to 	the 	unfair 	practice 	charge.
(3) 	An 	informal 	conference 	held 	on 	March 	1, 	1978 	failed 	to
resolve 	the 	matter 	which 	was 	thereupon 	heard 	on May 	9, 	1978 	in
San 	Bernardino, 	California.
1 	All 	statutory 	references 	are 	to 	the 	California
Government 	Code 	unless 	otherwise 	specified 	herein.

(4) 	At 	the 	hearing 	on 	May 	9, 	1978, 	the 	District 	renewed
its 	motion 	to 	dismiss 	those 	portions 	of 	the 	charge 	alleging
violation 	of 	sections 	3543, 	3543.1 	and 	3543.5(b). 	The
District's 	motion 	was 	granted 	regarding 	sections 	3543, 	3543.1
and 	denied 	regarding 	section 	3543.S(b).
The 	gravamen 	of 	the 	Association's 	unfair 	practice 	charge 	is
that 	the 	District 	violated 	section 	3543.S(a), 	(b) 	and 	(c) 	by
unilaterally 	implementing 	the 	creation 	and 	filling 	of 	two 	new
classified 	positions, 	attendance 	supervisor 	and 	staff
assistant/student 	relations, 	to 	perform 	work 	which 	in 	the 	past
had 	been 	performed 	by 	unit 	members 	represented 	by 	the
Association.
The 	District 	responds 	that 	it 	is 	without 	authority 	to
bargain 	over 	the 	Rialto 	Unified 	School 	District 	Personnel
Commission's 	(hereafter 	Personnel 	Commission) 	decision 	to
classify 	the 	two 	positions 	as 	part 	of 	the 	classified 	service,
the 	District's 	action 	to 	fill 	the 	positions 	is 	not 	a 	mandatory
subject 	of 	negotiating, 	certificated 	unit 	members 	were 	not
substantially 	affected 	in 	their 	terms 	and 	conditions 	of
employment 	so 	as 	to 	require 	negotiations 	regarding 	the
assignment 	and 	reassignment 	of 	duties 	and 	nothing 	in 	the 	record
supports 	alleged 	violations 	of 	section 	3543.S(a) 	and 	(b).
FINDINGS 	OF 	FACT
The 	Association 	is 	the 	exclusive 	representative 	of
certificated 	employees 	in 	the 	District. 	A different 	employee
organization 	is 	the 	exclusive 	representative 	of 	all 	classified
employees 	in 	the 	District.

On 	September 	9, 	1977 	the 	District 	and 	the 	Association
executed 	a 	collective 	negotiating 	agreement, 	effective
September 	9, 	1977 	through 	June 	30, 	1979.
Sometime 	in 	the 	fall 	of 	1977 	Mr. 	Jan 	Button, 	principal 	at
Eisenhower 	High 	School, 	had 	several 	conversations 	with
Ms. 	Mary 	Hodson, 	then 	the 	attendance 	counselor 	at 	Eisenhower
and 	a 	member 	of 	the 	certificated 	unit 	represented 	by 	the
Association. 	According 	to 	Mr. 	Button 	(Ms. 	Hodson 	did 	not
testify 	at 	the 	hearing), 	the 	purpose 	of 	the 	conversations 	was
"to 	work 	together 	to 	solve 	Eisenhower's 	attendance 	problems."
Ms. 	Hodson 	complained 	to 	Mr. 	Button 	about 	her 	inability 	to
perform 	her 	counseling 	function 	because 	the 	inordinate 	amount
of 	clerical 	tasks 	that 	came 	with 	the 	role 	of 	attendance
counselor 	caused 	her 	to 	be 	bogged 	down 	in 	paperwork.
Ms. 	Hodson 	indicated 	the 	need 	for 	more 	hands 	to 	perform 	these
various 	clerical 	functions.
During 	September 	and 	October 	1977, 	Mr. 	Button, 	in 	frequent
talks 	with 	Mr. 	Robert 	H. 	Williams, 	superintendent 	of 	the
District, 	recommended 	that 	the 	position 	of 	attendance 	counselor
at 	Eisenhower 	be 	changed 	to 	that 	of 	a 	classified 	position.
Although 	Mr. 	Button 	felt 	that 	there 	was 	a 	possibility 	of
getting 	more 	than 	one 	classified 	position 	with 	the 	money 	that
had 	been 	budgeted 	for 	the 	attendance 	counselor 	position,
Mr. 	Button 	was 	unsure 	about 	whether 	he 	communicated 	this
thought 	to 	anyone.
During 	this 	same 	period 	of 	time, 	members 	of 	the 	District
administration 	also 	considered 	the 	possibility 	of 	creating 	a
second 	new 	classified 	position, 	that 	of 	staff 	assistant/student
relations 	at 	Frisbee 	Junior 	High 	School.

Superintendent 	Williams 	directed 	Mr. 	Sam 	Simpson, 	assistant
superintendent 	of 	personnel, 	to 	contact 	and 	work 	with
Mr. 	Charley 	Perry, 	classified 	personnel 	director 	and 	executive
secretary 	to 	the 	Personnel 	Commission, 	regarding 	the 	creation
of 	these 	two 	classified 	positions.
The 	idea 	that 	the 	two 	positions 	be 	created 	in 	the
classified 	service 	was 	first 	communicated 	to 	Mr. 	Perry 	by
Mr. 	Simpson. 	Following 	that 	initial 	contact, 	Mr. 	Perry
contacted 	Mr. 	Button, 	principal 	at 	Eisenhower, 	and 	Mr. 	Britton,
principal 	at 	Frisbee. 	These 	site 	administrators 	told
Mr. 	Perry, 	in 	general 	terms, 	of 	their 	individual 	needs 	and 	the
particular 	problems 	creating 	those 	needs. 	Mr. 	Perry 	then
synthesized 	this 	information, 	looked 	at 	the 	skills, 	knowledge,
and 	abilities 	needed 	to 	perform 	the 	particular 	duties 	involved,
and 	contacted 	other 	school 	districts 	to 	see 	if 	they 	had 	similar
classified 	positions. 	Based 	on 	this 	information, 	Mr. 	Perry
came 	up 	with 	two 	class 	specifications: 	staff 	assistant/student
relations 	at 	Frisbee 	and 	attendance 	supervisor 	at 	Eisenhower.
These 	class 	specifications 	were 	submitted 	by Mr. 	Perry 	to
the 	Personnel 	Commission 	at 	a 	non-public 	meeting 	on
December 	4 or 	5, 	1977. 	The 	purpose 	of 	this 	meeting 	was 	to
decide 	whether 	or 	not 	the 	two 	positions 	belonged 	in 	the
classified 	service. 	The 	Personnel 	Commission 	reviewed
Mr. 	Perry's 	information, 	looked 	at 	additional 	responsibilities
which 	the 	Commission 	felt 	should 	be 	added, 	and 	discussed 	salary
recommendations 	which 	they 	would 	make 	to 	the 	District's
administration. 	Based 	on 	these 	considerations, 	the 	Personnel
Commission 	gave 	approval 	to 	Mr. 	Perry 	to 	initiate 	job

announcements 	relative 	to 	the 	two 	positions. 	On 	December 	9,
1977, 	the 	Personnel 	Commission 	published 	the 	proposed
classified 	job 	descriptions 	for 	the 	two 	positions 	and 	on
December 	12, 	1977, 	the 	Personnel 	Commission 	published 	job
announcements 	requesting 	applications 	for 	the 	two 	positions.
On 	December 	10, 	1977, 	the 	Association 	expressed 	its 	concern
to 	Mr. 	Larry 	G. 	Ruttan, 	assistant 	superintendent 	employee
relations, 	that 	the 	job 	descriptions 	as 	proposed 	would 	involve
transferring 	out 	of 	the 	bargaining 	unit 	work 	done 	by members 	of
the 	certificated 	bargaining 	unit 	and 	would 	otherwise 	affect
matters 	within 	the 	scope 	of 	representation 	pursuant 	to 	section
3543.2.
The 	Association 	outlined 	these 	concerns 	with 	respect 	to 	the
position 	of 	attendance 	supervisor 	at 	Eisenhower 	on
December 	12, 	1977, 	in 	a 	letter 	from 	Mr. 	Bert 	Wiefels, 	president
of 	the 	Association, 	to 	Mr. 	Ruttan. 	The 	Association 	stated:
(1) 	that 	the 	position 	as 	described 	in 	the 	proposed 	job
description 	involved 	many 	responsibilities 	and 	duties
appropriate 	for 	a 	certificated 	person 	which 	therefore 	ought 	to
be 	staffed 	by 	a 	certificated 	person; 	(2) 	that 	although 	the
position 	as 	posted 	included 	some 	administrative 	and 	clerical
duties, 	such 	duties 	did 	not 	significantly 	depart 	from 	those
duties 	handled 	by 	the 	certificated 	person 	who 	was 	occupying 	the
position; 	(3) 	that 	the 	position 	of 	attendance 	counselor 	was
clearly 	a 	part 	of 	the 	bargaining 	unit 	recognized 	by 	the
District 	to 	be 	represented 	by 	the 	Association; 	and 	(4) 	that
although 	the 	recognized 	unit 	was 	incorporated 	in 	the 	collective
negotiation 	agreement 	between 	the 	District 	and 	the 	Association,

there 	had 	been 	no 	consultation 	between 	the 	parties 	prior 	to 	the
posting 	of 	the 	position. 	The 	Association 	further 	expressed 	its
concern 	about 	the 	erosion 	of 	the 	bargaining 	unit 	insofar 	as 	it
involved 	recognized 	certificated 	duties 	being 	performed 	by
non-certificated 	personnel. 	The 	Association 	also 	expressed 	its
concern 	that 	the 	proposed 	shifting 	of 	recognized 	bargaining
unit 	work 	out 	of 	the 	unit 	had 	taken 	the 	form 	of 	unilateral
action 	having 	been 	preceded 	by 	no 	negotiations, 	discussion, 	or
notice 	to 	the 	Association.
In 	a 	letter 	dated 	December 	15, 	1977, 	Mr. 	Wiefels 	expressed
to 	Mr. 	Williams 	the 	Association's 	concern 	that 	both 	positions,
as 	advertised 	by 	the 	District, 	involved 	duties 	and
responsibilities 	that 	were 	part 	of 	the 	bargaining 	unit 	work
represented 	by 	the 	Association 	and 	that 	many 	of 	these 	duties
should 	appropriately 	continue 	to 	be 	performed 	by 	certificated
personnel.
The 	Personnel 	Commission 	held 	its 	regu 	r 	monthly 	public
meeting 	on 	January 	5, 	1978. 	On 	its 	published 	agenda 	as 	an
action 	item 	was 	the 	approval 	of 	the 	two 	new 	classified
itions. 	At 	that 	meeting, 	the 	Personnel 	Commission 	took
formal 	action 	to 	ove 	the 	two 	itions 	as 	t
6

classified 	service. 	No 	representative 	of 	the 	Association 	was
present 	and 	no 	one 	challenged 	the 	Personnel 	Commission's
classification 	of 	the 	two 	positions 	at 	the 	Commission's 	meeting
on 	January 	5, 	1978.
On 	January 	1, 	1978, 	President 	Wiefels 	telephoned
Superintendent 	Williams 	concerning 	the 	proposed 	job
descriptions 	and 	again 	indicated 	the 	desire 	of 	the 	Association
to 	meet 	and 	negotiate 	in 	this 	regard. 	There 	is 	conflicting
2
testimony 	as 	to 	what 	was 	said 	during 	this 	conversation.
Wiefels' 	interpretation 	of 	that 	conversation 	is 	contained
in 	a 	letter 	written 	by Wiefels 	to 	Williams 	dated
2wiefels 	testified 	that 	Williams 	indicated 	that 	the 	two
positions 	had 	been 	"squashed" 	by 	the 	Association. 	Wiefels
interpreted 	this 	to 	mean 	that 	the 	positions 	had 	been 	"killed",
that 	"they're 	no 	longer 	viable."
Williams' 	account 	of 	the 	conversation 	differs 	from 	that 	of
Wiefels. 	Williams 	testified 	that 	he 	told 	Wiefels 	that 	he
didn't 	believe 	the 	Association 	had 	the 	right 	to 	negotiate 	on
the 	issue 	at 	all 	and 	that 	the 	District 	was 	moving 	ahead 	with
the 	matter. 	Williams 	testified 	that 	he 	informed 	Wiefels 	that
he 	(Williams) 	had 	doubts 	in 	his 	own 	mind 	whether 	the 	position
would 	be 	filled 	because 	the 	dispute 	with 	the 	Association 	would
probably 	"quash" 	the 	request 	on 	the 	part 	of 	the 	two
principals. 	By 	"quash" 	Williams 	meant 	"quash" 	with 	the 	Board
of 	Education. 	Williams 	added 	that 	the 	Association 	would 	then
get 	the 	credit 	for 	depriving 	the 	two 	schools 	of 	the 	requests
that 	they 	had 	made. 	In 	any 	event, 	resolution 	of 	the
conflicting 	testimony 	appears 	to 	be 	unnecessary 	to 	arrive 	at 	a
determination 	of 	whether 	the 	District 	violated 	section
3 5 4 3. 5 ( b) 	and 	( c) .
7

January 	16, 	1978 	in 	which 	Wiefels 	states 	that 	pursuant 	to 	the
telephone 	conversation 	of 	January 	6, 	1978, 	he 	considers 	the
entire 	negotiation 	issue 	closed 	because 	the 	two 	new 	classified
positions 	had 	been 	"squashed."
Williams 	replied 	to 	Wiefels' 	letters 	of 	December 	15, 	1977
and 	January 	16, 	1978 	by 	writing 	to 	Wiefels 	on 	January 	19, 	1978.
Williams' 	letter 	stated 	that 	negotiations 	were 	closed 	pursuant
to 	the 	collective 	negotiating 	agreement 	and 	that 	it 	did 	not
seem 	appropriate 	to 	open 	them 	because 	the 	Association 	felt 	the
District 	was 	hiring 	two 	classified 	persons. 	Williams 	further
stated 	that 	management 	had 	the 	right 	to 	the 	assignment 	of 	new
responsibilities. 	Williams 	went 	on 	to 	say 	that 	the 	two
positions 	had 	been 	referred 	to 	the 	Personnel 	Commission 	and 	had
been 	accepted 	as 	classified 	appointments, 	that 	a 	testing 	system
had 	been 	set 	up 	and 	the 	employees 	would 	soon 	be 	selected, 	and
that 	the 	next 	step 	would 	be 	to 	take 	the 	recommendation 	to 	the
Board 	of 	Education. 	Williams 	also 	indicated 	that 	there 	would
be 	no 	decrease 	in 	the 	certificated 	staff 	due 	to 	reassignment 	of
duties.
On 	January 	20, 	1978, 	the 	District 	published 	an 	agenda 	for
the 	District's 	School 	Board 	meeting 	to 	be 	held 	on
January 	25, 	1978. 	Included 	in 	that 	agenda 	was 	the 	proposed
approval 	of 	the 	hiring 	of 	two 	individuals 	to 	fill 	the 	positions
of 	staff 	assistant/student 	relations 	and 	attendance
supervisor. 	On 	January 	25, 	1978, 	Mr. 	Wiefels 	again 	wrote
Mr. 	Williams, 	outlining 	further 	the 	Association's 	position
regarding 	the 	District's 	refusal 	to 	honor 	the 	Association's
request 	to 	meet 	and 	negotiate 	on 	the 	issues 	surrounding 	the
Q

filling 	of 	the 	two 	new 	positions, 	and 	reiterating 	the
Association's 	request 	to 	meet 	and 	negotiate 	in 	that 	regard. 	In
addition, 	Mr. 	Wiefels 	delivered 	a 	speech 	to 	the 	Rialto 	School
Board 	at 	its 	January 	25, 	1978 	meeting 	concerning 	the 	proposed
filling 	of 	the 	two 	positions. 	Following 	Mr. 	Wiefels' 	speech,
the 	District's 	Board 	unanimously 	approved 	the 	hiring 	of 	two
individuals 	to 	fill 	the 	positions 	of 	staff 	assistant/student
relations 	and 	attendance 	supervisor.
Sometime 	before 	the 	position 	of 	attendance 	supervisor 	was
approved 	by 	the 	District's 	Board, 	Mr. 	Williams, 	Mr. 	Button 	and
Ms. 	Hodson 	engaged 	in 	a 	conversation 	in 	which 	Mr. 	Williams
indicated 	to 	Ms. 	Hodson 	that 	there 	were 	doubts 	about 	making
changes 	in 	the 	position 	of 	attendance 	counselor 	because 	of 	the
controversy 	with 	the 	Association 	over 	the 	position.
Mr. 	Williams 	indicated 	to 	Ms. 	Hodson 	that 	she 	might 	not 	get 	her
transfer 	because 	of 	the 	controversy. 	According 	to
Mr. 	Williams' 	testimony, 	Ms. 	Hodson 	stated 	that 	she 	was 	quite
satisfied 	to 	do 	what 	the 	District 	would 	have 	her 	do 	even 	though
she 	wished 	to 	have 	a 	transfer, 	that 	she 	did 	not 	like 	to 	be 	in
the 	middle 	of 	a 	controversy, 	and 	that 	she 	didn't 	want 	to 	cause
trouble. 	Mr. 	Williams 	stated 	that 	he 	did 	not 	talk 	to 	Ms.
Hodson 	about 	a 	transfer 	at 	any 	other 	time 	and 	that 	he 	did 	not
know 	if 	Ms. 	Hodson 	had 	ever 	requested 	a 	transfer. 	Ms. 	Hodson
did 	not 	testify 	at 	the 	hearing 	and 	there 	is 	nothing 	in 	the
record 	to 	indicate 	whether 	she 	ever 	requested 	a 	transfer 	or 	how
she 	interpreted 	or 	reacted 	to 	this 	conversation 	with
Mr. 	Williams.
9

In 	the 	latter 	part 	of 	January 	1978, 	Mr. 	Amos 	L. 	Saulsbury,
chairman 	of 	the 	faculty 	senate 	at 	Eisenhower 	and 	a 	member 	of
the 	negotiating 	unit 	represented 	by 	the 	Association, 	was 	asked
by Mr. 	Button 	if 	he 	would 	like 	to 	sit 	in 	on 	the 	interview
committee 	for 	the 	position 	of 	attendance 	supervisor.
Mr. 	Saulsbury 	testified 	that 	Mr. 	Button 	indicated 	to 	him, 	in
general 	terms, 	that 	the 	position 	of 	attendance 	counselor 	was 	to
be 	changed, 	that 	there 	would 	no 	longer 	be 	a 	counselor 	in 	that
position, 	and 	that 	they 	would 	be 	interviewing 	for 	a 	classified
person 	to 	assume 	some 	of 	the 	functions 	of 	the 	attendance
counselor. 	Mr. 	Saulsbury 	stated 	that 	at 	the 	time 	he
participated 	in 	the 	interviews 	he 	was 	not 	aware 	that 	the
position 	of 	attendance 	supervisor 	was 	the 	subject 	of 	a 	dispute
between 	the 	Association 	and 	the 	District.
Mr. 	Button 	was 	also 	a 	member 	of 	the 	interview 	committee 	for
the 	attendance 	supervisor 	position. 	He 	testified 	that 	during
the 	interviews 	he 	asked 	the 	candidates 	if 	their 	hours 	were
flexible 	because 	some 	home 	visitations 	in 	the 	evening 	hours
would 	be 	required. 	He 	also 	indicated 	to 	at 	least 	one 	candidate
that 	counselors 	felt 	they 	had 	the 	right 	to 	leave 	work 	at 	2:30
and 	that 	this 	had 	been 	a 	problem 	in 	the 	past. 	Mr. 	Button 	also
indicated 	to 	the 	candidates 	that 	they 	would 	be 	required 	to
handle 	the 	"15-day 	absence 	notices." 	In 	the 	past, 	a 	student
with 	five 	or 	ten 	days 	of 	absences 	from 	certain 	classes 	was
referred 	to 	a 	regular 	counselor. 	When 	the 	student 	accumulated
15 	days 	of 	absences, 	the 	student 	was 	referred 	to 	the 	attendance
counselor. 	With 	the 	removal 	of 	the 	attendance 	counselor
10

position, 	the 	attendance 	supervisor 	was 	to 	handle 	those 	15-day
referrals. 	This 	was 	a 	new 	attendance 	policy 	at 	Eisenhower.
Ms. 	Hodson 	had 	performed 	this 	function 	in 	the 	past.
In 	regard 	to 	the 	15-day notices, 	candidates 	were 	told 	they
would 	also 	be 	required 	to 	make 	determinations 	as 	to 	whether
further 	counseling 	by 	the 	student's 	counselor 	was 	required.
The 	candidates 	were 	also 	informed 	that 	they 	would 	be 	required
to 	work 	with 	the 	School 	Attendance 	Review 	Board 	(hereafter
SARB), 	an 	agency 	composed 	of 	school 	and 	community
representatives 	whose 	purpose 	is 	to 	solve 	attendance 	problems.
Of 	the 	three 	candidates 	who 	interviewed 	for 	the 	attendance
supervisor 	position, 	Ms. 	Mary 	Cardozie 	was 	eventually 	hired.
Ms. 	Hodson 	was 	subsequently 	reassigned 	to 	duties 	as 	a 	regular
counselor 	at 	Eisenhower 	and 	the 	position 	of 	attendance
counselor, 	which 	had 	been 	in 	existence 	at 	Eisenhower 	since 	at
least 	1961, 	was 	abolished. 	Ms. 	Hodson 	is 	still 	at 	Eisenhower
and 	is 	still 	a 	member 	of 	the 	negotiating 	unit 	represented 	by
the 	Association. 	The 	creation 	of 	the 	position 	of 	attendance
supervisor 	at 	Eisenhower 	has 	not 	resulted 	in 	the 	reduction 	of
the 	certificated 	staff 	at 	Eisenhower.
Ms. 	Joanne 	Kuiper 	is 	a 	member 	of 	the 	Association's
negotiating 	team 	and 	has 	been 	a 	counselor 	at 	Eisenhower 	since
1964. 	In 	1972, 	Ms. 	Kuiper 	participated 	in 	the 	drafting 	of 	a
"Tentative 	Job 	Description 	- 	Counselor 	- 	Grades 	7-12."
Although 	the 	District 	represented 	that 	this 	was 	not 	an 	official
job 	description 	for 	counselors 	and 	that 	there 	has 	never 	existed
such 	an 	official 	job 	description 	for 	counselors, 	Ms. 	Kuiper
testified 	that 	the 	"Tentative 	Job 	Description" 	was 	an 	umbrella
11

description 	of 	the 	duties 	performed 	by 	counselors 	at
Eisenhower, 	that 	the 	document 	correctly 	described 	the 	work
performed 	by 	counselors 	at 	Eisenhower, 	and 	that 	nothing
contained 	therein 	was 	inaccurate.
Ms. 	Kuiper 	testified 	about 	the 	general 	duties 	and
responsibilities 	of 	counselors 	and 	about 	the 	particular 	duties
and 	responsibilities 	of 	the 	attendance 	counselor 	at
Eisenhower. 	According 	to 	Ms. 	Kuiper, 	the 	following 	duties 	and
responsibilities 	of 	the 	attendance 	supervisor, 	as 	described 	in
the 	final 	job 	announcement 	published 	by 	the 	Personnel
Commission, 	are 	duties 	and 	responsibilities 	currently 	performed
by 	counselors 	in 	general 	and 	previously 	performed 	by 	the
attendance 	counselor 	in 	particular:
Assist 	staff, 	parents, 	and 	students 	in
looking 	at 	attendance 	realities, 	strategies,
and 	alternatives. 	Discuss 	problems 	and 	keep
in 	touch 	with 	parents 	by 	telephone 	and 	home
visitations. 	Keep 	thorough 	written 	records
of 	contacts 	with 	parents; 	enlist 	assistance
from 	other 	students, 	adults, 	and 	agencies;
make 	frequent 	home 	visits 	to 	verify
student's 	residence 	and 	attendance 	habits.
Provide 	liaison 	between 	parents, 	teachers,
counselors, 	and 	administrators 	in 	working
with 	students 	with 	attendance 	problems; 	also
work 	with 	the 	School 	Attendance 	Review 	Board.
Ms. 	Kuiper 	testified 	that 	the 	counselors 	at 	Eisenhower
still 	perform 	these 	same 	functions 	as 	part 	of 	their 	job
responsibilities. 	Ms. 	Kuiper 	also 	testified 	that 	to 	the 	best
of 	her 	knowledge, 	classified 	personnel 	at 	Eisenhower 	have
never, 	on 	a 	regular 	basis, 	filled 	any 	of 	these 	functions 	in 	the
past.
Principal 	Button 	testified, 	however, 	that 	in 	previous 	years
at 	least 	three 	classified 	persons 	had 	performed 	many 	of 	the
12

duties 	assigned 	to 	the 	attendance 	supervisor. 	Mr. 	Button
testified 	that 	Ms. 	Pauline 	Garcia, 	a 	CETA 	employee, 	had 	worked
at 	Eisenhower 	for 	one-half 	of 	the 	1975-76 	school 	year 	as 	an
attendance 	aide, 	a 	classified 	position. 	Mr. 	Button 	testified
that 	her 	duties 	included:
assist 	staff 	in 	looking 	at 	attendance
alternatives 	••• 	discuss 	problems 	and 	keep
in 	touch 	with 	parents 	by 	telephone 	•
make 	home 	visitations 	to 	parents 	•.. 	keep
written 	records 	of 	contacts 	with
parents 	.•• 	enlist 	assistance 	from 	other
students, 	adults, 	and 	agencies 	••. 	make
frequent 	home 	visits 	to 	verify 	attendance
habits 	.•••
According 	to 	Mr. 	Button, 	these 	same 	functions 	were
performed 	by 	Mr. 	Woodrow 	Feather, 	a 	CETA 	employee 	who 	worked 	at
Eisenhower 	for 	one-half 	of 	the 	1975-76 	school 	year 	in 	the
classified 	position 	of 	attendance 	aide, 	and 	by
Ms. 	Sadie 	Pittman, 	a 	tutor 	assigned 	to 	work 	with 	attendance
problems 	on 	a 	part-time 	basis 	at 	Eisenhower 	for 	two 	to 	three
months 	during 	the 	1976-77 	school 	year. 	While 	there 	have 	been
no 	similar 	CETA 	positions 	at 	Eisenhower 	in 	the 	past 	two 	years,
Mr. 	Button 	testified 	that 	all 	attendance 	clerks 	perform 	duties
similar 	to 	those 	of 	the 	attendance 	supervisor 	and 	that 	the
attendance 	supervisor 	is 	now 	doing 	much 	the 	same 	thing 	that 	the
at 	counse 	did.
Ms. 	Kuiper 	also 	testified 	that 	other 	duties 	previously
performed 	by 	the 	attendance 	counselor 	are 	now 	performed 	by 	the
atte 	supervisor. 	In 	t, 	accordi 	to Ms. 	Ku 	r, 	a
r 	ar 	counselor 	dealt 	wi 	a 	student 	who 	had 	accumu 	tea 	five
or 	ten 	days 	of 	absences. 	At 	15 	absences, 	the 	regular 	counselor
would 	notify 	the 	attendance 	counselor, 	who 	would 	at 	that 	point
13

deal 	with 	the 	student. 	The 	attendance 	supervisor 	now 	performs
this 	functions. 	Additionally, 	in 	the 	past, 	the 	attendance
counselor 	was 	assigned 	to 	work 	with 	the 	SARB, 	a 	function 	now
performed 	by 	the 	attendance 	supervisor. 	Lastly, 	the 	attendance
supervisor 	is 	now 	responsible 	for 	filling 	out 	various
attendance 	forms 	previously 	filled 	out 	by 	the 	attendance
counselor.
Ms. 	Kuiper 	also 	testified 	that 	the 	implementation 	of 	the
attendance 	supervisor 	position 	has 	had 	an 	impact 	on 	her 	own
work 	load 	and 	role 	as 	a 	regular 	counselor. 	Ms. 	Kuiper 	stated
that, 	prior 	to 	the 	appointment 	of 	the 	attendance 	supervisor, 	a
licensed 	certificated 	person 	held 	the 	position 	of 	attendance
counselor. 	Thus, 	Ms. 	Kuiper 	had 	no 	problem 	referring 	the
15-day 	absences 	to 	a 	qualified 	person. 	But 	since 	the
employment 	of 	a 	classified 	attendance 	supervisor, 	a 	position
that 	requires 	the 	equivalent 	of 	a 	high 	school 	diploma,
Ms. 	Kuiper 	stated 	she 	no 	longer 	has 	the 	confidence 	in 	that
person 	that 	she 	had 	in 	a 	licensed 	certificated 	person.
Consequently, 	as 	a 	general 	rule, 	she 	no 	longer 	passes 	the
15-day 	absence 	notices 	along 	to 	the 	attendance 	supervisor, 	but
rather 	deals 	with 	them 	herself. 	Thus, 	Ms. 	Kuiper 	testified,
she 	has 	assumed 	a 	greater 	role 	in 	the 	handling 	of 	attendance
problems.
The 	position 	of 	staff 	assistant/student 	relations 	at
Frisbee 	Junior High 	School 	was 	filled 	with 	the 	hiring 	of
Mr. 	Anderson 	shortly 	before 	the 	start 	of 	the 	second 	semester 	of
the 	1977-78 	school 	year.
14

Ms. 	Nancy 	Patteson, 	a 	counselor 	at 	Frisbee 	for 	the 	last 	ten
years, 	testified 	that 	at 	a 	February 	2, 	1978 	meeting 	of 	the
Frisbee 	counselors, 	she 	was 	asked 	by Mr. 	Britton, 	principal 	at
Frisbee, 	if 	she 	would 	develop 	a 	form 	for 	Mr. 	Anderson 	to 	use 	on
home 	visitations. 	Ms. 	Patteson 	initially 	agreed 	to 	do 	this;
however, 	she 	subsequently 	wrote 	to 	Mr. 	Britton 	and 	declined 	to
develop 	the 	form, 	citing 	as 	her 	reason 	the 	dispute 	that 	existed
over 	the 	position 	between 	the 	Association 	and 	the 	District.
Ms. 	Patteson 	testified 	that 	the 	following 	duties 	and
responsibilities 	of 	the 	staff 	assistant/student 	relations, 	as
described 	in 	the 	job 	announcement 	published 	by 	the 	Personnel
Commission, 	are 	functions 	that 	have 	traditionally 	been
performed 	and 	are 	currently 	being 	performed 	by 	counselors 	at
Frisbee:
to 	promote 	academic 	and 	social 	success 	of
students 	by 	fostering 	educational
goals 	••. 	to 	develop 	and 	maintain
communication 	with 	students 	concerning 	their
problems 	in 	relating 	to 	the 	School
District 	.•• 	to 	provide 	paraprofessional
counseling 	assistance 	to 	students 	and 	their
parents 	... 	to 	motivate 	a 	greater 	feeling
of 	unity 	and 	respect 	among 	all
students 	••• 	to 	handle 	student
disciplinary 	actions 	as 	necessary 	••••
Ms. 	Patteson 	testified 	that 	to 	the 	best 	of 	her 	knowledge
classified 	employees 	at 	Frisbee 	in 	the 	past 	have 	never
performed 	these 	functions. 	She 	indicated, 	however, 	that
Mr. 	Anderson 	is 	currently 	performing 	these 	functions 	along 	with
the 	counselors 	at 	Frisbee.
Ms. 	Patteson 	also 	testified 	that 	the 	implementation 	of 	the
staff 	assistant/student 	relations 	position 	has 	had 	an 	impact 	on
the 	duties 	and 	work 	load 	of 	the 	counselors 	at 	Frisbee.
15

Ms. 	Patteson 	stated 	that 	in 	the 	past 	years 	she 	had 	worked 	a
great 	deal 	more 	with 	students 	with 	tardy 	problems 	than 	she 	does
in 	the 	current 	year. 	Specifically, 	Ms. 	Patteson 	testified 	that
in 	the 	past, 	counselors 	dealt 	with 	students 	who 	had 	accumulated
four 	and 	five 	tardies 	to 	an 	individual 	class. 	This 	year,
however, 	counselors 	deal 	only 	with 	the 	fourth 	tardy 	and 	the
fifth 	tardy 	is 	referred 	to 	Mr. 	Anderson.
Ms. 	Patteson 	testified 	that 	there 	is 	a 	lack 	of
communication 	regarding 	tardy 	problems 	and 	that 	counselors
generally 	have 	less 	contact 	with 	what 	is 	going 	on 	on 	campus
since 	the 	implementation 	of 	the 	staff 	assistant/student
relations 	position. 	Ms. 	Patteson 	stated 	that 	the 	counselors
are 	now 	"separated" 	from 	what 	they 	had 	been 	doing 	in 	the 	past,
which 	Ms. 	Patteson 	described 	as 	"kind 	of 	like 	being 	in 	the
front 	lines." 	According 	to 	Ms. 	Patteson, 	"things 	just 	aren't
as 	visible" 	to 	the 	counselors 	as 	they 	used 	to 	be.
Ms. 	Patteson 	also 	stated 	that 	Mr. 	Anderson 	is 	difficult 	to 	find
because 	he 	spends 	much 	of 	his 	time 	out 	of 	the 	office 	and 	that
he 	has 	made 	no 	effort 	to 	establish 	contact 	with 	the 	counselors.
According 	to 	Ms. 	Patteson, 	however, 	the 	most 	significant
change 	at 	Frisbee 	this 	year, 	compared 	to 	the 	past 	seven 	years,
is 	the 	presence 	of 	a 	new 	principal, 	new 	assistant 	principal,
and 	one 	new 	counselor. 	Ms. 	Patteson 	testified 	that 	it 	was 	thus
difficult 	to 	assess 	the 	impact 	of 	the 	new 	staff
assistant/student 	relations 	position 	on 	the 	functioning 	of 	the
counselors 	because 	some 	of 	the 	changes 	at 	Frisbee 	in 	the
current 	year 	are 	the 	result 	of 	new 	managerial 	personnel.
16

Finally, 	Ms. 	Patteson 	testified 	that 	prior 	to 	the
implementation 	of 	the 	staff 	assistant/student 	relations
position 	at 	Frisbee 	there 	were 	three 	counselors 	at 	that 	site.
Following 	the 	implementation 	of 	that 	position, 	there 	continues
to 	be 	three 	counselor 	positions 	at 	Frisbee. 	Thus, 	the
implementation 	of 	that 	position 	has 	not 	resulted 	in 	the
reduction 	of 	the 	number 	of 	counselors 	at 	Frisbee 	or 	the 	number
of 	positions 	represented 	by 	the 	Association.
Ms. 	Ruth 	DeSadier 	has 	been 	employed 	as 	a 	counselor 	at
Frisbee 	since 	September 	1977. 	She 	testified 	that 	one 	day 	she
found 	her 	office 	occupied 	by 	Mr. 	Anderson, 	a 	student, 	and 	a
teacher. 	She 	was 	later 	told 	by 	the 	teacher 	that 	the 	student
had 	been 	fighting 	and 	that 	Mr. 	Anderson 	had 	counseled 	the
student. 	Ms. 	Desadier 	testified 	that 	she 	felt 	slighted 	by 	the
incident 	because 	she 	felt 	Mr. 	Anderson 	had 	been 	doing 	her
counseling 	job. 	On 	another 	occasion, 	Ms. 	DeSadier 	was
counseling 	a 	student 	and 	was 	considering 	a 	home 	visitation 	when
Mr. 	Anderson 	informed 	her 	that 	he 	had 	visited 	the 	student's
home 	the 	previous 	evening. 	Mr. 	Anderson 	then 	gave 	Ms. 	Desadier
a 	list 	of 	suggestions 	and 	recommendations 	which 	he 	felt 	would
help 	her 	in 	counseling 	the 	student 	and 	his 	family.
Ms. 	Desadier 	also 	testified 	that 	the 	office 	Mr. 	Anderson
occupies 	was 	formerly 	occupied 	by 	a 	certificated 	person, 	that
the 	office 	in 	the 	past 	had 	been 	used 	by 	certificated 	personnel
to 	make 	phone 	calls 	and 	conduct 	parent 	conferences, 	and 	that
the 	office 	is 	now 	unavailable 	for 	these 	functions.
17

ISSUES
1. 	Did 	the 	District 	fail 	to 	meet 	and 	negotiate 	in 	good
faith 	by 	unilaterally 	implementing 	the 	creation 	and 	filling 	of
two 	new 	classified 	positions, 	attendance 	supervisor 	and 	staff
assistant/student 	relations, 	to 	perform 	work 	which 	in 	the 	past
had 	been 	performed 	by 	unit 	members 	represented 	by 	the
Association 	in 	violation 	of 	section 	3543.5(c)?
2. 	Did 	the 	District 	interfere, 	restrain 	or 	coerce
employees 	in 	violation 	of 	section 	3543.S(a)?
3. 	Did 	the 	District 	deny 	the 	Association 	its 	rights 	as 	an
employee 	organization 	in 	violation 	of 	section 	3543.5(b)?
CONCLUSIONS 	OF 	LAW
A. 	The 	Allegation 	That 	The 	District 	Failed 	To Meet 	And
Negotiate 	In 	Good 	Faith 	In 	Violation 	Of 	Section 	3543.5(c)
Section 	3543.S(c) 	provides 	that 	it 	shall 	be 	unlawful 	for 	a
public 	school 	employer 	to:
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive
representative.
"Meeting 	and 	negotiating" 	is 	defined 	in 	pertinent 	part 	by
section 	3540.l(h) 	as:
••• 	meeting, 	erring, 	negotiat 	, 	and
discussing 	by 	the 	exc 	ive 	representative
and 	the 	public 	school 	r 	in 	a 	good
fai 	effort 	to 	reach 	agreement 	on 	matters
within 	the 	scope 	of 	representation 	and 	the
execution, 	if 	requested 	by 	either 	party, 	of
a 	written 	document 	incorporating 	any
agreements 	reach 	..•. 	[Emphasis 	added.]
18

Matters 	within 	the 	"scope 	of 	representation" 	are 	limited,
pursuant 	to 	section 	3543.2, 	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 	Sec. 	53200, 	leave, 	transfer
and 	reassignment 	policies, 	safety 	conditions
of 	employment, 	class 	size, 	procedures 	to 	be
used 	for 	the 	evaluation 	of 	employees,
organizational 	security 	pursuant 	to 	Sec.
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 	. 	. 	.. 3
Thus, 	before 	an 	employer 	may 	be 	found 	to 	have 	violated
section 	3543.S(c), 	it 	must 	be 	determined 	that 	it 	has 	failed 	to
meet 	and 	negotiate 	regarding 	any 	subjects 	of 	mandatory
negotiation 	enumerated 	in 	section 	3543.2.
The 	District 	defends 	its 	action 	of 	failing 	to 	meet 	and
negotiate 	regarding 	the 	creation 	of 	the 	two 	new 	classified
positions 	in 	question 	with 	the 	defense 	that 	the 	District 	is 	a
merit 	system 	school 	district 	and 	the 	Personnel 	Commission 	has
the 	sole 	authority 	to 	classify 	said 	positions.
It 	is 	clear 	that 	the 	District 	is 	a 	merit 	system 	school
district 	and 	as 	such, 	pursuant 	to 	Education 	Code 	section 	45240
et. 	seq., 	the 	Personnel 	Commission 	is 	granted 	broad 	authority
in 	developing 	and 	monitoring 	procedures 	relating 	to 	the 	hiring,
retention 	and 	termination 	of 	district 	employees. 	The 	PERB
3 Seco 	3543.2 	was 	amended 	pursuant 	to 	Statso 	1977, 	cho 	606
(effective 	September 	7, 	1977) 	to 	make 	reassignment 	policies
negotiable.
19

itself 	recognized 	the 	role 	of 	the 	merit 	system 	in 	Sonoma
County 	Organization 	of 	Public 	Employees 	(11/23/77) 	EERB
Decision 	No. 	40, 	in 	ruling 	that 	a 	school 	board 	can 	negotiate
the 	increase 	or 	decrease 	of 	salaries 	of 	particular 	job
classifications, 	so 	long 	as 	such 	negotiated 	changes 	do 	not 	lift
a 	classification 	which 	formerly 	was 	lower 	paid 	above 	one 	which
formerly 	was 	higher 	paid 	within 	the 	same 	"occupational 	group."
The 	District's 	argument, 	however, 	must 	fail 	for 	the 	reason
that 	the 	District 	alone 	made 	the 	decision 	to 	request 	the
Personnel 	Commission 	to 	create 	the 	classified 	positions 	in
question. 	Certainly 	the 	District 	was 	not 	restrained 	by 	the
merit 	system 	in 	making 	its 	initial 	decision 	to 	seek 	the
creation 	of 	the 	positions 	by 	the 	Personnel 	Commission.
Furthermore, 	after 	the 	Personnel 	Commission 	created 	the
classified 	positions, 	it 	was 	still 	within 	the 	District's
exclusive 	control 	to 	approve 	the 	hiring 	of 	two 	individuals 	to
fill 	the 	positions. 	The 	District's 	action 	to 	approve 	the
filling 	of 	the 	classified 	positions 	took 	place 	at 	the
District's 	school 	board 	meeting 	on 	January 	25, 	1978. 	Clearly
the 	District 	was 	not 	restrained 	in 	taking 	this 	action 	by 	virtue
of 	the 	merit 	system. 	Thus, 	while 	the 	merit 	system 	leaves 	the
Personnel 	Commission 	with 	the 	exclusive 	authority 	to 	classify
positions 	within 	the 	classified 	service, 	the 	District 	has 	the
authority 	to 	initiate 	requests 	to 	the 	Personnel 	Commission 	for
the 	classification 	of 	new 	positions 	and 	to 	eventually 	approve
the 	hiring 	of 	individuals 	to 	fill 	newly 	created 	positions.
Certainly 	it 	was 	not 	beyond 	the 	District's 	control 	pursuant 	to
the 	merit 	system 	to 	have 	met 	and 	negotiated 	with 	the 	Association
20

upon 	the 	Association's 	request 	after 	the 	Personnel 	Commission
approved 	the 	positions 	in 	question 	but 	before 	the 	District's
Board 	approved 	the 	hiring 	of 	two 	individuals 	to 	fill 	the
positions.
(1) 	The 	Classified 	Positions 	And 	The 	Duty 	To Meet
And 	Negotiate 	Regarding 	"Wages" 	And 	"Hours 	Of 	Employment"
The 	facts 	are 	clear 	that 	the 	creation 	of 	the 	two 	new
classified 	positions 	and 	the 	filling 	of 	those 	positions 	did 	not
affect 	the 	wages 	of 	any 	certificated 	unit 	members 	represented
by 	the 	Association. 	Nor 	is 	it 	contended 	by 	the 	Association
that 	the 	District 	had 	an 	obligation 	to 	meet 	and 	negotiate 	over
wages.
The 	subject 	of 	"hours 	of 	employment", 	however, 	requires
careful 	examination. 	In 	Fullerton 	Union 	High 	School 	District
Personnel 	and 	Guidance 	Association 	(5/30/78) 	PERB 	Decision 	No.
53, 	the 	Board 	itself 	held 	that 	the 	Fullerton 	Union 	High 	School
District 	unlawfully 	failed 	to 	meet 	and 	negotiate 	with 	the
Fullerton 	Union 	High 	School 	District 	Personnel 	and 	Guidance
Association 	on 	the 	subjects 	of 	counselor 	and 	psychologist
caseloads 	on 	the 	ground 	that 	caseload 	is 	a 	matter 	relating 	to
"hours 	of 	employment" 	as 	used 	in 	section 	3543.2.
There 	is 	testimony 	in 	the 	record 	of 	the 	instant 	case
regarding 	the 	impact 	on 	the 	working 	load 	of 	regular 	counselors
in 	the 	District 	after 	the 	creation 	and 	filling 	of 	the 	two 	new
classified 	positions. 	Ms. 	Kuiper, 	a 	counselor 	at 	Eisenhower
since 	1964, 	testified 	that 	since 	the 	appointment 	of 	the
attendance 	supervisor, 	she 	no 	longer 	has 	the 	same 	confidence 	in
that 	person 	that 	she 	had 	in 	the 	licensed 	certificated 	person
who 	formerly 	filled 	the 	position 	of 	attendance 	counselor 	and
consequently, 	as 	a 	general 	rule, 	she 	no 	longer 	sends 	15-day
21

absence 	notices 	to 	the 	attendance 	supervisor 	but 	rather 	deals
with 	them 	herself.
Ms. 	Patteson, 	a 	counselor 	at 	Frisbee, 	testified 	that, 	while
in 	the 	past 	she 	and 	other 	counselors 	at 	her 	school 	dealt 	with
students 	who 	had 	accumulated 	four 	and 	five 	tardies 	to 	an
individual 	class, 	after 	the 	implementation 	of 	the 	staff
assistant/student 	relations 	position, 	counselors 	deal 	with 	only
the 	fourth 	tardy 	and 	that 	the 	fifth 	tardy 	is 	referred 	to 	the
staff 	assistant/student 	relations. 	Ms. 	Patteson 	further
testified 	that 	subsequent 	to 	the 	implementation 	of 	the 	staff
assistant/student 	relations 	position 	there 	is 	less 	contact
between 	counselors 	and 	the 	campus 	and 	that 	things 	are 	not 	as
"visible" 	to 	the 	counselors 	as 	they 	used 	to 	be. 	Ms. 	Patteson
however 	added 	that 	it 	is 	difficult 	to 	assess 	the 	impact 	of 	the
new 	staff 	assistant/student 	relations 	position 	on 	the
functioning 	of 	counselors 	because 	some 	of 	the 	changes 	at
Frisbee 	are 	the 	result 	of 	new 	managerial 	personnel 	at 	the
school. 	Ms. 	Patteson 	testified, 	however, 	that 	there 	has 	been
no 	change 	subsequent 	to 	the 	implementation 	of 	the 	staff
assistant/student 	relations 	position 	in 	the 	number 	of
counselors 	at 	Frisbee 	or 	the 	number 	of 	positions 	represented 	by
the 	Association.
Ms. 	DeSadier, 	a 	counselor 	at 	Frisbee, 	testified 	that 	in 	one
instance 	she 	felt 	slighted 	by 	the 	fact 	that 	the 	staff
assistant/student 	relations 	person 	had 	conducted 	a 	conference
between 	a 	student, 	a 	teacher 	and 	himself 	in 	Ms. 	DeSadier's
office 	because 	she 	felt 	that 	the 	staff 	assistant/student
relations 	person 	was 	doing 	her 	counseling 	job. 	In 	another
instance, 	the 	staff 	assistant/student 	relations 	person made 	some
22

suggestions 	to 	Ms. 	Desadier 	which 	he 	felt 	would 	help 	her 	in
counseling 	a 	particular 	student 	and 	his 	family. 	Ms. 	DeSadier
further 	stated 	that 	the 	office 	which 	the 	staff
assistant/student 	relations 	occupies 	was 	formerly 	occupied 	by 	a
certificated 	person 	and 	that 	while 	the 	office 	was 	then
available 	for 	certificated 	personnel 	to 	make 	phone 	calls 	or
conduct 	parent 	conferences, 	it 	is 	no 	longer 	available 	for 	these
purposes.
While 	sensitive 	to 	the 	practical 	difficulties 	experienced
by 	counselors 	at 	Eisenhower 	and 	Frisbee 	in 	adjusting 	to 	the
changes 	here 	at 	issue, 	it 	must 	be 	concluded 	that 	the
implementation 	of 	the 	new 	classified 	positions 	did 	not 	have 	a
substantial 	impact 	upon 	counselors' 	workloads. 	Unlike
Fullerton, 	it 	cannot 	be 	concluded 	from 	the 	testimony 	that 	the
implementation 	of 	the 	positions 	in 	question 	has 	increased 	the
number 	of 	hours 	worked 	by 	counselors 	at 	Eisenhower 	or 	Frisbee
nor 	affected 	the 	quality 	of 	the 	work 	performed 	by 	counselors.
Accordingly, 	it 	is 	concluded 	that 	the 	implementation 	of 	the 	two
new 	classified 	positions 	was 	not 	a 	matter 	relating 	to 	"hours 	of
employment" 	as 	used 	in 	section 	3543.2
(2) 	The 	Classified 	Positions 	And 	The 	Duty 	To Meet 	And
Negotiate 	Regarding 	"Other 	Terms 	And 	Conditions 	Of
Employment"
An 	analogy 	may 	be 	drawn 	between 	the 	District's 	actions 	in
this 	case 	regarding 	the 	creation 	and 	filling 	of 	two 	new
classified 	positions 	to 	perform 	some 	of 	the 	duties 	in 	the 	past
performed 	by 	certificated 	employees 	represented 	by 	the
23

Association 	and 	cases 	involving 	the 	subcontracting 	out 	of 	work
performed 	by 	unit 	members 	which 	have 	arisen 	under 	the 	Labor
4
Management 	Relations 	Act 	(hereafter 	LMRA)
In 	its 	precedential 	decision, 	Fibreboard 	Paper 	Prods. 	Corp.
v. 	NLRB 	(1964) 	379 	U.S. 	203 	[57 	LRRM 	2609], 	the 	U.S. 	Supreme
Court 	declared 	that 	the 	employer 	had 	violated 	section 	B(a) (5)
of 	the 	LMRA 	in 	refusing 	to 	meet 	and 	negotiate 	on 	the 	subject 	of
contracting 	out 	to 	an 	independent 	contractor 	the 	performance 	of
plant 	maintenance 	work. 	The 	Supreme 	Court 	held:
The 	subject 	matter 	of 	the 	present 	dispute 	is
well 	within 	the 	literal 	meaning 	of 	the
phrase 	"terms 	and 	conditions 	of
employment." 	See 	Order 	of 	Railroad
Telegraphers 	v. 	Chicago 	& N.W.R. 	Co., 	362
U.S. 	330 	[45 	LRRM 	3104]. 	A stipulation 	with
respect 	to 	the 	contracting 	out 	of 	work
performed 	by 	members 	of 	the 	bargaining 	unit
might 	appropriately 	be 	called 	a 	"condition
of 	employment." 	The 	words 	even 	more 	plainly
cover 	termination 	of 	employment 	which, 	as
the 	facts 	of 	this 	case 	indicate, 	necessarily
results 	from 	the 	contracting 	out 	of 	work
performed 	by 	members 	of 	the 	established
bargaining 	unit. 	[57 	LRRM 	at 	2612.]
As 	shown 	by 	the 	above-quoted 	passage, 	the 	Supreme 	Court's
termination 	in 	Fibreboard, 	supra, 	relied 	on 	the 	general
provision 	"terms 	and 	conditions 	employment" 	the 	LMRA.
The 	more 	narrow 	islative 	definition 	given 	to 	the 	rase
"terms 	itions 	of 	employment" 	in 	the 	EERA, 	however,
requires 	a 	careful 	examination 	the 	District's 	act 	in
429 	U.S.C. 	sec. 	151 	et. 	seq. 	The 	Labor 	Management
Relations 	Act 	amended 	the 	National 	Labor 	Relations 	Act.
24

light 	nf 	thP 	enurneratPd 	suhiects 	which 	constitute 	"terms 	and
5
conditions 	of 	emplovment" 	pursuant 	to 	the 	EERA.
The 	sole 	item 	enumerated 	in 	the 	EERA 	as 	a 	term 	and
conclitior 	of 	emplovment 	which 	arguably 	applies 	to 	the 	facts 	of
this 	case 	is 	that 	of 	"reassignment 	policies." 	The 	facts 	of
this 	case 	clearly 	show 	that 	there 	has 	been 	no 	failure 	to 	meet
and 	negotiate 	transfer 	policies 	since 	that 	term 	as 	used 	in 	the
5 subseouent 	to 	the 	Supreme 	Court's 	decision 	in
Fibreboard, 	the 	National 	Labor 	Relations 	Board 	(NLRB) 	developed
the 	"significant 	adverse 	impact" 	rule 	in 	Westinghouse 	Elec.
Corp. 	(Mansfield 	Plant) 	(1965) 	150 	NLRB 	1574 	[58 	LRRM 	1257],
wherein 	it 	was 	held 	that 	the 	employer's 	subcontracting
decisions, 	challenged 	by 	the 	union 	as 	unlawfully 	unilateral,
resulted 	in 	no 	"sionificant 	impairment 	of 	iob 	tenure,
employment 	security, 	or 	reasonably 	anticipated 	work
opportunities 	for 	those 	in 	the 	baraainina 	unit" 	where 	the
emolover 	had 	a 	lone 	history 	of 	subcontractina maintenance 	and
procluction 	w0rk. 	Similarlv, 	in 	Fafnir 	BParing 	Co. 	(1965) 	382
U.S. 	205, 	the 	Court 	held 	that 	even 	if 	the 	subcontract 	in
auestion 	relateP 	to 	unit 	work, 	there 	is 	no 	dutv 	to 	neaotiate 	if
no 	unit 	employee 	is 	laid 	off 	or 	has 	his 	working 	hours 	reduced
as 	a 	resuJt. 	Thus, 	unaer 	the 	facts 	of 	the 	case 	at 	har 	wherein
no 	empJoyee 	was 	laid 	off 	or 	had 	his 	hours 	reduced, 	it 	is
doubtful 	that 	even 	the 	Supreme 	Court's 	expansive 	readina 	of
"terms 	and 	conditions 	of 	employment" 	in 	Fibreboard, 	supra 	,
would 	bring 	the 	creation 	and 	filling 	of 	the 	positions 	in
auestion 	within 	the 	scope 	of 	mandatory 	subjects 	of 	negotiation
pursuant 	to 	sec. 	3543.2.
While 	not 	controllina 	in 	the 	case 	at 	bar 	due 	to 	the 	limited
scope 	of 	"terms 	and 	conditions 	of 	employment" 	in 	the 	EERA, 	an
expansive 	readin9 	of 	the 	phrase 	in 	the 	private 	sector 	has 	led
at 	least 	one 	court 	to 	the 	conclusion 	that 	the 	employer 	is
ohligated 	to 	meet 	and 	negotiate 	regarding 	contracting 	out 	where
there 	is 	an 	adverse 	impact 	on 	the 	unit 	representative. 	In 	UAW
v. 	NLRB 	(General 	Motors 	Corp.) 	(1967) 	38 	.2 	[ 	4 	LRRf.1'--
2489T;°-a 	subcontracting 	decision 	by General 	Motors 	(which 	the
union 	conceded 	"achieved 	substantial 	efficiencies") 	resulted 	in
the 	elimination 	of 	six 	unit 	jobs 	in 	a 	bargaining 	unit 	of 	more
than 	1,000 	emplovees, 	with 	the 	displaced 	workers 	being
reassigned 	to 	other 	positions 	in 	the 	plant. 	The 	NLRB 	fauna 	no
significant 	adverse 	impact 	and 	thus 	no 	ohligation 	to 	bargain.
The 	court 	of 	appeals 	reversed, 	however, 	since 	even 	though 	the
six 	individuals 	suffered 	no 	joh 	Joss 	there 	was 	an 	adverse
impact 	on 	the 	bargaining 	unit 	since 	it 	diminished 	by 	six 	the
whole 	numher 	of 	jobs 	performed 	bv 	its 	members.

EERA 	involves 	movement 	from 	one 	school 	to 	another 	and 	none 	of
the 	members 	of 	the 	Association's 	certificated 	unit 	were 	moved
as 	the 	result 	of 	the 	creation 	and 	filling 	of 	the 	positions 	in
. 	6
ques t 1On.
Section 	3543.2 	was 	effectively 	amended 	on 	September 	7, 	1977
to 	include 	"reassignment 	policies" 	within 	the 	scope 	of
representation. 	Several 	court 	decisions 	considering 	questions
of 	reassignment 	pursuant 	to 	the 	California 	Education 	Code 	shed
some 	light 	on 	the 	term 	"reassignment 	policies" 	as 	used 	in
section 	3543.2.
In 	Council 	of 	Directors 	and 	Supervisors 	v. 	Los 	Angeles
Unified 	School 	District 	(1973) 	35 	Cal.App.3d 	147 	[110 	Cal.Rptr.
624], 	the 	Court 	of 	Appeal 	considered 	the 	question 	of 	whether 	or
not 	the 	Los 	Angeles 	Unified 	School 	District 	had 	properly
reassigned 	certain 	supervisors 	and 	administrators 	at 	the
beginning 	of 	the 	1970-71 	school 	year 	as 	a 	result 	of
decentralization 	of 	the 	administration 	of 	the 	district 	into
four 	zones. 	In 	Thompson 	v. 	Modesto 	City 	High 	School 	District
(1977) 	19 	Cal.3d 	620 	[139 	Cal.Rptr. 	603], 	the 	California
Supreme 	Court 	considered 	the 	question 	of 	whether 	certificated
administrators 	can 	be 	reassigned 	from 	positions 	as
administrators 	to 	classroom 	teachers 	and 	whether 	certain
counselors 	can 	be 	reassigned 	from
6of 	course 	both 	a 	reassignment 	and 	transfer 	can 	be
simultaneously 	involved 	as, 	for 	example, 	when 	a 	teacher 	is
moved 	from 	a 	counseling 	position 	at 	one 	school 	to 	a 	position
teaching 	history 	at 	another. 	See, 	e.g., 	Adelt 	v. 	Richmond
School 	District 	(1967) 	250 	Cal.App.2d 	149 	[58 	Cal.Rptr. 	151].
26

positions 	as 	counselors 	to 	classroom 	teachers. 	In 	Leslie
Wellbaum 	v. 	Oakdale 	Joint 	Union 	High 	School 	District 	of
Stanislaus 	County 	(1977) 	70 	Cal.App.3d 	93 	[138 	Cal.Rptr. 	553],
the 	Court 	of 	Appeal 	confronted 	the 	question 	of 	the 	reassignment
of 	a 	probationary 	school 	teacher, 	due 	to 	a 	decline 	in
enrollment, 	from 	teaching 	foreign 	language 	classes 	to 	teaching
English.
In 	light 	of 	the 	above 	decisions 	of 	the 	California 	Supreme
Court 	and 	California 	Courts 	of 	Appeal, 	it 	is 	evident 	that 	the
term 	"reassignment 	policies" 	contemplates 	an 	alteration 	in
working 	conditions 	of 	a 	more 	significant 	impact 	than 	the 	record
indicates 	occurred 	in 	this 	case.
It 	is 	doubtful 	that 	the 	Legislature 	intended 	the 	term
"reassignment 	policies" 	to 	apply 	to 	a 	change 	in 	job 	duties
which 	had 	such 	a 	relatively 	insignificant 	impact 	upon 	unit
members 	as 	the 	record 	indicates 	the 	change 	of 	job 	duties 	in
this 	case 	had. 	Certainly, 	had 	any 	of 	the 	counselors 	been
reassigned 	to 	teaching 	positions, 	the 	issue 	of 	the
negotiability 	of 	their 	reassignments 	would 	be 	brought 	sharply
into 	focus. 	Likewise, 	if 	any 	of 	the 	counselors 	in 	the 	District
had 	been 	reassigned 	to 	administrative 	positions 	or 	assigned 	to
counseli 	it 	another 	location, 	the 	issue
"transfer 	and 	reassignment 	pol 	ies" 	would 	li 	ise 	clearly
7drawn. 	However, 	to 	hold 	in 	this 	case 	that 	a 	reassignment
7This 	op1n1on 	does 	not 	ress 	the 	issue 	of 	whether 	such
action 	would 	constitute 	a 	change 	in 	policies 	transfer 	and
reassignment. 	"Policy" 	is 	defined 	in Webster's 	Third 	New
International 	Dictionary 	(1976) 	as 	"a 	definite 	course 	or 	method
of 	action 	selected 	(as 	by 	a 	government, 	institution, 	group, 	or
individual) 	from 	among 	alternatives 	and 	in 	the 	light 	of 	given
conditions 	to 	guide 	and 	usually 	determine 	present 	and 	future
decisions •••• "
27

has 	occurred 	either 	in 	the 	case 	of 	Ms. 	Hodson, 	a 	counselor 	both
before 	and 	after 	the 	change 	at 	issue, 	whose 	duties 	were 	altered
only 	in 	that 	she 	is 	no 	longer 	performing 	clerical 	functions 	or
in 	the 	case 	of 	counselors 	at 	Frisbee 	and 	Eisenhower 	who 	no
longer 	handle 	fifth 	tardies 	and 	voluntarily 	deal 	with 	15-day
absence 	notices 	would 	be 	to 	hold 	that 	even 	the 	most 	minor
change 	in 	counselors' 	job 	duties 	is 	subject 	to 	negotiation 	as 	a
change 	in 	"reassignment 	policies." 	In 	view 	of 	the 	above-cited
cases, 	however, 	it 	is 	apparent 	that 	the 	term 	"reassignment
policies" 	means 	a 	substantial 	change 	in 	job 	duties 	such 	as 	from
a 	counselor 	to 	teacher, 	administrator 	to 	teacher 	or 	foreign
language 	teacher 	to 	English 	teacher.
B. 	The 	Allegation 	That 	The 	District 	Interfered, 	Restrained
Or 	Coerced 	Employees 	in 	Violation 	Of 	Section 	3543.S(a)
The 	facts 	in 	this 	case 	show 	that 	prior 	to 	the 	District's
action 	of 	filling 	the 	attendance 	supervisor 	position, 	the
superintendent 	spoke 	with 	Ms. 	Hodson, 	the 	attendance 	counselor
for 	Eisenhower. 	The 	superintendent 	stated 	that 	Ms. 	Hodson
might 	not 	get 	her 	transfer 	request 	because 	of 	the 	controversy
surrounding 	the 	Association's 	request 	to 	meet 	and 	negotiate
regarding 	the 	subject. 	The 	Association 	argues 	that 	the 	natural
and 	probable 	consequences 	of 	the 	superintendent 	personally
informing 	Ms. 	Hodson 	of 	the 	issue 	between 	the 	Association 	and
District 	was 	to 	restrain 	and 	coerce 	her 	from 	acting 	on 	any
contractual 	rights 	including 	the 	grievance 	procedure.
It 	must 	first 	be 	noted 	that 	to 	prove 	a 	violation 	of 	section
3543.S(a) 	it 	must 	be 	shown 	that 	the 	District 	acted 	with 	the
motive 	of 	interfering, 	restraining 	and 	coercing 	employees 	in
28

the 	exercise 	of 	employee 	rights 	guaranteed 	by 	the 	EERA 	or 	that
the 	natural 	and 	probable 	consequence 	of 	the 	District's 	action
was 	to 	interfere, 	restrain 	or 	coerce 	employees 	in 	the 	exercise
of 	employee 	rights 	as 	guaranteed 	by 	the 	EERA. 	San 	Dieguito
Union 	High 	School 	District 	(9/2/77) 	EERB 	Decision 	No. 	22.
It 	has 	not 	been 	shown 	that 	the 	District 	intended 	to 	or 	did
in 	fact 	interfere 	with, 	restrain 	or 	coerce 	Ms. 	Hodson 	or 	any
other 	employee 	because 	of 	the 	exercise 	of 	rights 	guaranteed 	by
the 	EERA. 	It 	moreover 	cannot 	be 	concluded 	that 	the 	natural 	and
probable 	consequences 	of 	a 	conversation 	between 	the
superintendent 	and 	Ms. 	Hodson, 	wherein 	Ms. 	Hodson 	was 	informed
of 	the 	controversy 	between 	the 	Association 	and 	the 	District 	was
to 	interfere, 	restrain 	or 	coerce 	Ms. 	Hodson 	because 	of 	the
exercise 	of 	rights 	guaranteed 	by 	the 	EERA.
The 	Association 	additionally 	argues 	that 	a 	derivative
violation 	of 	section 	3543.S(a) 	must 	be 	found 	because 	the
natural 	and 	probable 	consequences 	of 	the 	District's 	failure 	to
meet 	and 	negotiate 	over 	matters 	within 	the 	scope 	of
representation 	was 	to 	interfere, 	restrain 	or 	coerce 	employees
from 	the 	exercise 	of 	rights 	guaranteed 	by 	the 	EERA. 	However,
having 	found 	no 	violation 	of 	section 	3543.S(c) 	inasmuch 	as 	the
Distr 	t's 	act 	in 	creati 	and 	filling 	the 	classified
position 	question 	was 	not 	a 	matter 	within 	the 	scope
representation 	as 	defined 	in 	section 	3543.2, 	it 	cannot 	be
concluded 	that 	a 	derivative 	v 	t 	sect 	3543.S(a)
occurred.
29

C. 	The 	Allegation 	That 	The 	District 	Denied 	The 	Association
Its 	Rights 	As 	An 	Employee 	Organization 	In 	Violation 	Of
Section 	3543.S(b)
The 	Association 	argues 	that 	the 	District, 	in 	utilizing
certificated 	unit 	members 	in 	the 	process 	of 	creating 	and
filling 	the 	classified 	positions 	in 	question, 	has 	denied 	to 	the
Association 	its 	right 	to 	represent 	unit 	members. 	The 	right 	of
the 	Association 	as 	exclusive 	representative 	to 	have 	the
District 	deal 	only 	with 	the 	Association 	and 	not 	individual 	unit
members 	stems 	from 	the 	duty 	to 	meet 	and 	negotiate 	in 	good 	faith
with, 	and 	only 	with, 	the 	exclusive 	representative 	pursuant 	to
sections 	3543 	and 	3543.S(c). 	The 	District, 	however, 	was
clearly 	not 	seeking 	to 	meet 	and 	negotiate 	with 	individual 	unit
members 	when 	it 	spoke 	with Ms. 	Hodson 	and 	expressed 	an 	opinion
on 	the 	subject 	of 	the 	change 	of 	duties 	for 	Ms. 	Hodson 	or 	when
the 	District 	attempted 	to 	use 	members 	of 	the 	counseling 	staff
in 	the 	selection 	process 	for 	attendance 	supervisor. 	Similarly,
the 	District 	was 	not 	attempting 	to 	meet 	and 	negotiate 	with
individual 	unit 	members 	when 	Mr. 	Britton 	requested 	suggestions
from 	counselors 	at 	Frisbee 	as 	to 	what 	specifically 	the 	duties
of 	the 	staff 	assistant/student 	relations 	should 	be, 	in 	asking
counselors 	at 	Frisbee 	to 	develop 	recording 	forms 	for 	home
visits 	or 	asking 	counselors 	if 	they 	would 	object 	to 	the 	staff
assistant/student 	relations 	attending 	counseling 	meetings. 	In
summary, 	none 	of 	the 	above 	actions 	may 	be 	construed 	as 	an
attempt 	by 	the 	District 	to 	circumvent 	its 	duty 	to 	meet 	and
30

negotiate 	with 	the 	Association 	as 	exclusive 	representative 	of
unit 	members. 	Consequently, 	no 	violation 	of 	Association's
rights 	pursuant 	to 	section 	3543.S(b) 	is 	found.
PROPOSED ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law 	and 	the 	entire 	record 	in 	the 	matter, 	the 	District 	has 	not
violated 	section 	3543.S(a), 	(b) 	or 	(c). 	It 	is 	the 	Proposed
Order 	that 	the 	unfair 	practice 	charge 	filed 	by 	the 	Rialto
Education 	Association 	against 	the 	Rialto 	Unified 	School
District 	is 	hereby 	DISMISSED.
Pursuant 	to 	Calif. 	Admin. 	Code, 	tit. 	8, 	part 	III, 	section 	32305,
this 	proposed 	decision 	and 	order 	shall 	become 	final 	on 	Friday,
December 	29, 	1978 	unless 	a 	party 	files 	a 	timely 	statement 	of
exceptions. 	See 	Calif. 	Admin. 	Code, 	tit. 	8, 	part 	III, 	section 	32300.
Such 	statement 	of 	exceptions 	and 	supporting 	brief must 	be 	actually
received 	by 	the 	Executive Assistant 	to 	the 	Board 	at 	the 	Headquarters
Office 	in 	Sacramento 	before 	the 	close 	of business 	(5:00 	p.mo) 	on
December 	26, 	1978, 	in 	order 	to 	be 	timely 	filed. 	See 	Cal. 	Admin.
Code, 	tit. 	8, 	part 	III, 	section 	32135. 	Any 	statement 	of 	exceptions
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 	Calif. 	Admin. 	Code, 	tit. 	8,
sections 	32300 	and 	32305 	as 	amended.
Dated 	December 	6, 	1978.
31
· Kenneth 	A. 	Perea
Hearing 	Officer