Goleta Union School District (PERB 0391E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED 	TEACHING 	PROFESSION/
GOLETA/CTA/NEA,
Charging 	Party,
v.
GOLETA UNION 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-1516
PERB Decision No. 391
August 	1, 	1984
Appearances; 	Charles R. 	Gustafson, 	Attorney for United
Teaching Profession/Goleta/CTA/NEA; 	Bruce 	Barsook, 	Attorney
(Liebert, 	Cassidy & Frierson) 	for Goleta Union School District •
Before Tovar, Morgenstern, and Burt, Members.
DECISION
TOVAR, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB or Board) 	on an appeal by the United
Teaching 	Profession/Goleta/CTA/NEA 	(Association) 	of 	an
administrative 	law 	judge's 	(ALJ) 	proposed decision 	dismissing
the 	charge 	and 	complaint 	against 	the 	Goleta Union School
District 	(District). 	The charge 	filed by the Association, 	the
exclusive 	representative 	of 	the 	District's 	certificated
personnel, 	alleged 	that 	the District 	violated 	the 	Educational
Employment 	Relations 	Act 	(EERA or 	Act)l 	by employing persons
in 	the 	bargaining 	unit 	in 	counselor 	positions 	under 	terms 	and
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory references 	are 	to 	the Government Code
unless 	otherwise 	specified.
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conditions 	different 	from 	those 	specified 	in 	the 	collective
bargaining agreement 	(CBA) 	between the parties; 	or,
alternatively, 	by 	unilaterally subcontracting work out 	of 	the
unit.
After 	a 	review of 	the ALJ's proposed 	decision 	in light 	of
the 	party's 	exceptions 	and 	the 	entire 	record 	in 	this 	matter,
the 	Board 	reverses 	the ALJ's 	conclusions 	of 	law consistent 	with
the 	discussion below.
FACTS
At 	all 	times 	relevant 	to 	this 	case, 	the Association has
been 	the 	exclusive 	representative 	of 	the 	District's
certificated 	employee 	negotiating 	unit.2
The 	term 	of 	the 	current 	CBA for 	this 	unit 	is 	from
August 	15, 	1981 through June 30, 	1984. 	Article I 	(Recognition)
of 	that 	agreement 	describes 	the 	classifications 	included 	in the
certificated bargaining unit, 	which 	is 	comprised 	of
approximately 	220 	permanent 	and 	probationary 	employees.3
2official 	notice 	is 	taken of 	representation case 	file
LA-R-27 5, 	which 	is maintained 	in the PERB Los Angeles Regional
Office. 	That 	file 	shows 	that 	the 	PERB certified 	the
Association 	(which 	was 	formerly known 	as 	the Goleta 	Educators
Association) 	as 	the exclusive 	representative on November 	12,
1976.
3That	That 	provision states 	as 	follows:	3
ARTICLE 	I; 	RECOGNITION
The 	District 	recognizes 	the 	Association as
the 	exclusive 	representative 	for 	purposes 	of
meeting 	and 	negotiating 	for 	the 	certificated
employees of the District, 	as described
N
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The 	current 	CBA contains 	no provision 	defining or
referencing 	"bargaining unit 	work." 	The 	only language
referring 	to 	the 	contracting out 	of 	work 	is 	found 	in Article 	II
which 	reads as 	follows:
ARTICLE 	II: 	DISTRICT RIGHTS
It 	is 	understood 	and 	agreed 	that 	the
District 	retains 	all 	of 	its powers 	and
authority to direct, 	manage 	and 	control 	to
the 	full 	extent 	of 	the 	law. 	Included 	in,
but 	not 	limited 	to, 	those duties 	and powers
are 	the exclusive 	right 	to: 	Determine 	its
organization; 	direct work of 	its 	employees;
below 	and 	as 	certified by 	the 	Educational
Employment 	Relations 	Board 	(Case No.
LA-R-275), 	and as recognized by the Board of
Trustees 	of 	the Goleta Union School 	District
per 	its 	Resolution No. 	8-76 dated
November 10, 1975:
All 	permanent 	and 	probationary certificated
employees, 	excluding those in administrative
positions, as follows:
a. 	Full-time 	and/or 	regular 	part-time
teachers: 	Classroom, Miller-Unruh,
Special Education, 	Preschool, Hearing
Specialists
b. 	Full-time 	and/or 	regular 	part-time
Librarians
c. 	Full-time 	and/or 	regular 	part-time
Psychologists 	and 	Counselors
d. 	Full-time 	and/or 	regular 	part-time Nurses
e. 	Full-time 	and/or 	regular 	part-time
Speech 	Therapists
And excluding all management, 	supervisory,
confidential, 	and classified employees.
W
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determine 	the 	times 	and hours 	of operation;
determine 	the 	kinds 	and 	level 	of 	services 	to
be provided, 	and 	the methods 	and means 	of
providing them; 	establish 	its 	educational
policies, 	goals and objectives; 	insure the
rights 	and educational 	opportunities 	of
students; 	determine 	staffing patterns;
determine 	the 	number 	and 	kinds 	of 	personnel
required; 	maintain the 	efficiency of
District operations; 	determine the
curriculum; build, 	move or modify
facilities; 	establish budget procedures and
determine budgetary allocation; 	determine
the methods of 	raising revenue; 	lawfully
contract 	out 	work; 	and 	take 	action on any
matter 	in the 	event 	of an emergency. 	An
emergency is defined 	as: 	times 	of
extraordinary 	stress 	or 	disaster 	resulting
from storms, 	floods, 	fire, or other
calamitous events. 	In addition, 	the
District 	retains 	the 	right 	to hire,
classify, assign, evaluate, promote,
terminate, 	and discipline 	employees 	except
as 	restricted by 	this Agreement.
The 	exercise 	of 	the 	foregoing 	powers,
rights, authority, duties and
responsibilities by the District, 	the
adoption of policies, 	rules, 	regulations and
practices 	in 	furtherance 	thereof, 	and the
use 	of 	judgment 	and 	discretion 	in connection
therewith 	shall 	be 	limited 	only by 	the
specific and 	express 	terms 	of 	this Agreement.
At 	the 	time 	that 	the Association was 	certified 	as 	the
exclusive 	representative, 	the 	District 	employed 	two permanent
full-time 	elementary school 	counselors, 	Betty 	Steinberg 	and
Jack Forrest, 	herein referred 	to as 	"teacher 	counselors."
These 	two 	individuals 	were 	credentialed 	classroom 	teachers
before 	they became 	counselors. 	After becoming counselors, 	they
maintained 	some 	of 	their 	teacher 	duties 	and 	responsibilities
which 	included 	attending 	staff 	meetings, 	serving on 	faculty
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committees 	and 	some 	classroom teaching. 	Additionally, 	each
possessed 	a pupil 	personnel 	services 	credential 	which 	is 	a
state 	requirement 	for 	counselors.
As 	counselors, 	they provided 	a broad 	range 	of 	counseling
and 	consultation services to pupils, 	parents, 	teachers and
staff 	which were 	related 	to the pupils' 	instructional 	program
and 	their 	relationships 	with 	teachers, 	administrators 	and 	other
pupils. 	The 	counselors' 	duties 	included providing 	in-service
training 	to 	the 	teachers 	and 	other 	staff 	in 	such 	areas 	as human
relations, 	child growth and development, 	and parent
conferences. 	Each 	teacher 	counselor was 	assigned 	to an
individual 	school 	and worked 	under 	the 	immediate 	direction and
supervision 	of 	the 	site 	principal. 	Their 	counseling activities
were 	coordinated 	with 	those 	provided by 	the 	psychologists 	who
worked 	at 	their 	assigned 	schools. 	The 	counseling 	services
rendered 	by 	the 	teacher 	counselors 	overlapped 	those 	provided by
the psychologists, 	with one major exception. 	The psychologists
performed 	individual 	testing and 	diagnosis 	of 	pupils with
learning and behavior difficulties, 	whereas 	the 	teacher
counselors 	were 	not 	educationally qualified 	to perform 	this
function.
At 	the 	conclusion of 	the 	1976-77 	school year, 	the District
discontinued 	its 	use 	of 	teacher 	counselors.
Sometime between 	1977 and 	1981, 	the District 	entered 	into a
contract 	for 	counseling 	services 	with 	an organization 	called
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Social Advocates 	for Youth. 	The 	evidence 	fails 	to 	show the
exact 	nature 	of 	these 	services 	or 	for 	what 	period of 	time 	they
were actually provided. 	However, 	there 	is evidence 	that 	the
program was 	limited 	to the 	Isla Vista School, 	and 	that 	this
service 	was 	not provided during 	the 	1981-1982 school 	year.
During three 	of 	the past 	four years 	since 	the 	case arose,
the District 	has 	also had 	a 	contract 	with 	the University of
California, 	Santa Barbara, 	school psychologist credentialing
program. 	Through this 	program, 	additional 	counseling 	services
are 	provided 	at 	the 	Isla Vista 	School 	by psychologist 	interns.
These 	interns 	serve on a 	non-paid 	basis 	during 	the 	time 	they
are 	working as 	interns, 	but 	receive hourly pay when 	they are
giving 	counseling 	services 	as 	counselors. 	During 	the 	1981-82
school 	year, 	one 	intern worked at 	Isla Vista School.
It 	was 	stipulated 	that 	the District 	caused 	the 	following
advertisement 	to appear 	in the 	Santa 	Barbara News 	Press 	on or
about September 13, 	1981.
COUNSELOR 	(ELEMENTARY SCHOOL). 	Must possess
a valid Calif, 	pupil Personnel 	credential.
Has 	successful 	counseling experience;
facility with 	Spanish 	language 	desirable.
$11 	hourly. 	Apply Goleta School 	District
401 North Fairview Avenue by Sept. 	18th.
Shortly thereafter, 	the 	District hired 	six persons 	referred
to herein 	as 	"consultant 	counselors," 	to provide 	counseling
services during the 	1981-1982 school year. 	The hiring
procedure, 	compensation, 	and other 	terms 	and 	conditions 	of
employment 	for 	these 	individuals 	were handled according 	to 	the
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District's 	established 	policy 	for 	employing 	consultants. 	Each
entered 	into 	an 	individual 	"Agreement 	for 	Consultant
Services"4 to work 	for 	the District 	from October 	23, 	1981
through June 	18, 	1982. 	The number of hours 	each person worked
per week varied 	from 4 to 	15. 	They were 	all 	paid at 	the 	rate
of 	$11.00 per hour. 	The 	consultant 	counselors 	received 	none 	of
the 	employee 	benefits 	provided 	for 	in the 	certificated 	unit
CBA, 	nor 	is 	there 	evidence 	that 	any of 	the 	common 	employer
deductions 	such as 	income 	tax or 	social 	security were made 	from
the 	fees 	paid 	to 	them.
All 	consultant 	counselors hired possessed 	a pupil 	personnel
services 	credential. 	There 	is 	no evidence 	that 	any of 	them
also possessed 	a 	teaching credential. 	One person,
Pauline Mercado, 	was a 	credentialed school psychologist 	for
another 	school district, 	but did not 	work as 	a psychologist 	for
the District. 	The 	type 	of 	direct 	and 	indirect 	counseling
services 	that 	consultant 	counselors 	provided 	to 	the 	students
and 	staff 	was 	similar 	to 	that 	formerly provided by the 	teacher
counselors, 	although on a reduced scale. 	For example, 	there
was 	no 	responsibility 	for 	providing 	direct 	services 	of 	any 	kind
to parents, 	and 	the amount 	of 	consultation with teachers 	and
4 It 	is 	noted 	that 	paragraph 	two of 	this 	agreement
expressly 	states 	the 	following:
It 	is agreed 	that 	the consultant 	is acting
as 	an independent 	contractor, 	not as an
agent or employee of 	the district, 	and 	is
not 	eligible 	for 	employee benefits.
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other 	staff 	was 	extremely limited. 	The 	scope 	of 	the 	services
rendered 	by 	the 	individual 	consultant 	counselor 	was 	determined,
to 	a large extent, 	by the number 	of hours worked per week.
At 	the 	school 	site 	where 	each 	consultant 	counselor 	was
assigned, 	the 	site 	principal 	had 	responsibility for 	supervising
the 	utilization of 	the 	consultant 	counselors.
At 	the 	assigned school 	sites, 	the 	consultant 	counselors 	and
the 	psychologists 	shared 	responsibility 	for 	providing
counseling 	services. 	There was 	functional overlap in the
direct 	counseling 	services 	that 	they provided 	to both
individuals 	and 	groups of 	students, 	except 	in the area of
individual 	testing and 	diagnosis.
Steven Minjarez, 	the District's 	director 	of pupil personnel
in 	special 	services 	and 	the person responsible 	for 	the hiring
of 	the 	consultant 	counselors, 	prepared a memorandum with a 	list
of 	their 	responsibilities 	and 	circulated 	it 	to counselors 	and
principals.5 Other 	than 	this 	list, 	there 	is no 	job
5The 	specific 	counselor 	responsibilities 	were 	as 	follows:
(1) 	Counsel 	students 	individually and 	in
small 	groups 	in matters 	relating to their
learning 	adjustment 	processes 	in 	school
(should 	not 	include 	personal 	or 	family
therapy)? 	(2) 	assist 	the principal 	in
planning 	and 	conducting 	inservice 	education
experiences 	for 	the 	staff 	in 	such areas 	as
human 	relations, 	child growth and
development, 	and guidance 	functions of 	the
classroom teacher; 	(3) 	maintain liaison with
district 	guidance 	and 	counseling 	services
and 	related 	services 	in the 	community. 	Will
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description 	for 	them. 	He 	also prepared guidelines 	for 	the 	site
principals 	which were 	intended 	to help 	the principals 	and 	the
staff 	differentiate between 	the 	two basic 	types 	of 	counseling
services 	to be 	provided by the 	psychologists 	and 	the 	consultant
counselors.
Those 	guidelines 	indicate 	that 	the 	consultant 	counselors
were 	to 	give 	"regular" 	counseling 	to 	augment 	the 	counseling
services 	offered by the 	school psychologists 	to 	students 	in the
regular 	educational program. 	"Regular" 	counseling does 	not
require 	extensive 	diagnostics 	or 	assessment 	and 	is 	intended 	to
provide 	short-term 	intervention. 	For 	those 	students 	enrolled
in the 	special 	education services 	(master plan) 	program, 	only
the 	psychologists 	were 	to 	offer 	"designated 	instructional
service" 	(DIS) 	counseling. 	DIS counseling, 	which involves
long-term 	services 	focusing 	on 	associated 	learning 	disabilities
of 	the 	individual 	child, 	requires 	a comprehensive diagnostic
and 	assessment 	work-up which becomes 	part 	of 	the 	basis 	for 	the
staff's 	determination 	of 	an 	individualized education 	program
for 	each 	eligible 	student.
The evidence 	shows 	that at three 	schools, 	El Rancho,
Mountain View, 	and Brandon, 	the distinction between the 	types
assist 	in making appropriate 	referrals 	for
community services; 	(4) maintain
communication 	with 	district 	psychologist
assigned 	to 	the 	school 	as 	directed by the
principal.
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of 	students 	assigned 	to 	the 	psychologists 	and 	the 	consultant
counselors was blurred. 	At these 	schools, 	the consultant
counselors 	and 	the 	psychologists 	both provided 	regular 	and 	DIS
counseling 	to 	the 	students 	needing 	those 	services.
During 	the 	past 	seven years before 	the 	case 	arose, 	the
number 	of 	certificated 	employees 	in the 	negotiating unit has
decreased by approximately five. 	In 	the 	1981-82 	school 	year,
the District 	employed 	three 	psychologists, 	two on a 	full-time
basis 	and one on four-fifth's 	time, 	i.e., 	four days per week.
Additionally, 	the District 	contracts 	with the Office of 	the
Santa 	Barbara County 	Superintendent 	of 	School 	for 	the 	part-time
services of a school psychologist. 	That person, 	Jim Garcia, 	is
a 	county 	employee 	whose 	salary, 	hours 	and 	other 	terms 	and
conditions 	of 	employment 	are 	governed by 	the 	contract 	between
the District 	and 	the County 	Superintendent's 	office. 	Garcia's
salary is 	paid by the 	county. 	His 	performance 	evaluations 	are
also done by the 	county. 	However, 	his day-to-day assignments
are made by the 	site principal 	at his 	assigned 	school. 	The
diagnostic 	and 	counseling 	services 	provided by Garcia 	are 	the
same 	as 	those 	provided by 	the 	psychologists 	employed by the
District. 	During 	the 	1980-81 	school year, 	Garcia worked three
days 	per week.
In the 	spring of 1981, 	Glenn Elliott, 	the District
psychologist 	who works 	four 	days 	per 	week, 	requested 	to have
his hours 	increased 	to 	full-time during 	the 	1981-82 	school
year, 	i.e., 	five days per week. 	Although Minjarez, 	who is the
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administrative 	supervisor 	of 	the 	psychologists, 	acknowledged 	to
Elliott 	that 	the 	District was 	using less 	psychologist 	time 	than
it needed, 	he denied Elliott's request. 	Later, 	when questioned
about 	this by Elliott 	in the 	fall 	of 	1981, 	Minjarez explained
that, 	since 	the 	consultant 	counselors 	were being hired, 	the
District 	would not 	need 	as 	much psychological 	service 	as before.
In 	addition 	to 	contracting 	for 	the 	counseling 	services
described above, 	since 	1975 	the 	District has 	contracted with
consultants 	to provide 	art, 	music and dance 	instruction, 	and
language 	translation 	to 	students. 	Consultants have 	also been
hired 	to 	give 	in-service 	programs 	for 	the 	teaching 	faculty and
other 	staff. 	The 	consultants 	hired 	to perform these 	services
during 	the 	1981-82 	school 	year 	signed 	the 	same 	kind 	of
individual 	employment 	contracts 	that 	were 	signed by 	the
consultant 	counselors hired 	in 	1981. 	They were 	also paid 	the
same 	$11.00 hourly rate 	that 	was 	paid to 	the 	consultant
counselors.
There 	is 	no evidence 	that 	the 	parties have 	ever 	treated 	or
regarded 	the 	psychologist 	interns 	or 	the 	consultants 	described
above 	as members 	of the bargaining unit.
In a letter dated October 23, 	1981, 	Bill Gordon, 	an
Association 	representative, 	wrote 	to District 	Superintendent
Frank 	Schultz 	inquiring 	about 	the District's 	plans 	to 	employ
counselors by means of 	the 	September 	13, 	1981 	newspaper
advertisement. 	The letter 	state	
• d 	that:
On the 	face 	of 	it, 	the ad would 	seem to
promote 	a 	violation 	of 	current 	contract
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provisions between you and UTP/Goleta, 	since
counselors 	(full-time 	and/or 	regular
part-time 	counselors) 	are delineated 	in the
Recognition 	section 	(Article 	I) 	of 	the
contract 	and 	since 	those 	counselors 	would
seem to be 	covered by Article X, 	Salary,
which 	provides 	a 	uniform 	salary 	schedule 	for
all 	unit members.
In addition, 	the 	letter 	requested 	a meeting with 	the
superintendent 	to 	discuss 	the matter.
Through a letter, 	dated October 	27, 	1981, 	Superintendent
Schultz 	responded 	to Gordon 	and 	proposed 	a meeting 	on
November 	21, 	1981. 	The 	letter 	also stated that 	it was 	the
District's 	position 	that 	the 	persons 	being hired 	were
"consultants 	. 	. 	. 	serving in the capacity of independent
contractors 	and not as 	'employees' 	in terms of a collective
bargaining unit."
On November 12, 	Gordon, 	Grace Altus, 	a school psychologist,
and 	then Association President Mary Wendel 	met 	with Schultz 	and
Wynelle Chase, 	the District's director 	of personnel 	and chief
negotiator. 	During the meeting, 	the 	parties 	reiterated 	their
respective positions 	taken 	in the 	letters 	of October 	23 and 	27.
The Association demanded 	that 	the District 	rescind 	its 	action
and 	"restore 	the 	status quo." 	However, 	the Association did not
make 	a 	specific 	request 	or 	demand 	to bargain over 	the matter.
According to the 	testimony of Gordon, 	the 	reason 	it did not 	was
because:
[W]e were 	very 	satisfied with 	the 	contract
in place. 	We did not 	feel 	that 	it was
incumbent 	upon us 	to demand 	to bargain
something which we 	felt 	that 	we had by
contractual 	right.
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In concluding 	the meeting, 	the District 	representatives
promised 	to 	consult with 	their 	attorneys 	about 	the 	matter 	and
get 	back 	to 	the Association 	with 	their 	decision.
Approximately three weeks 	later, 	the District 	notified
Wendel 	that 	it 	was 	not 	going to 	rescind 	its 	decision 	to hire
consultant 	counselors. 	The 	parties have had 	no 	further 	contact
regarding 	this 	matter.
The 	District 	did not 	hire 	any consultant 	counselors 	for 	the
1982-83 school year; 	however, 	funding was 	included 	in the
budget 	for 	such 	services.
DISCUSSION
Employee 	or 	Independent 	Contractor
Relying 	primarily on 	cases 	decided 	by 	the National 	Labor
Relations Board 	(NLRB), 	the ALJ concluded that 	the 	consultant
counselors 	hired 	by 	the 	District 	were 	independent 	contractors
rather 	than 	employees 	because 	they 	received 	an hourly 	rate 	of
pay 	for 	their 	services 	and 	did not 	receive 	fringe benefits 	or
entitlement 	to 	tenure; 	they were 	not 	assigned extra-duty
assignments; 	their work was 	not 	subject 	to evaluation or
supervision by the District; 	and 	the 	technical 	and 	creative
means 	by which 	the 	consultant 	counselors 	carried 	out 	their
counseling activities 	was 	left 	to 	their 	discretion.
In contrast, 	the Association maintains 	that 	the 	consultant
counselors 	are 	employees 	under 	EERA.
13

Section 2(3) 	of the National Labor Relations Act 	(NLRA), 	as
amended 	by 	the 	Taft-Hartley Act6 , specifically 	excludes 	from
the definition of 	employee 	"any individual having 	the 	status 	of
an 	independent 	contractor." 	In interpreting this 	section, 	the
NLRB and 	the 	courts have 	followed 	the 	ordinary tests 	of 	the 	law
of 	agency - 	specifically the 	right 	of 	control 	test. 	That
approach 	considers 	such factors 	as 	who has 	control 	over 	the
manner 	and 	means 	by which 	the 	result 	is 	to be accomplished, 	the
skill 	required 	in 	the occupation, 	and who supplies 	the
instrumentalities, 	tools and place of work for 	the 	job, 	and
method of payment. 	See, 	e.g., 	Steinberg & Co. 	(1948) 	78 NLRB
211, 	enforcement denied, 	182 F.2d 850 	(5th Cir. 	1950). 	This
test 	is 	reflected 	in 	the U.S. 	Supreme Court's 	ruling in NLRB v.
United Insurance Co. 	(1968) 	390 U.S. 	254, 	258 [67 LRRM 2649],
where 	the Court 	concluded 	that 	all 	of 	the 	incidents 	of 	the
relationship must 	be 	assessed 	and 	weighed 	with 	no 	one 	factor
being decisive. 	"What 	is 	important 	is 	that 	the 	total 	factual
context 	is 	assessed 	in 	light 	of 	the 	pertinent 	common 	law agency
principles."
However, 	subsection 3540.1(j), 	which sets 	forth the
definition of 	employee 	for purposes 	of 	the EERA, 	makes 	no
specific mention or 	exclusion of 	"independent 	contractor,"
6The NLRA is 	codified at 	29 U.S.C, 	section 151 	et 	seq.
14

making 	the 	language 	between 	the 	two 	statutes 	different.7 In
addition, 	the 	factors 	considered 	under 	the NLRA deal 	with
specific 	industrial 	settings8 which 	appear 	to be 	quite
different 	in 	focus 	from the public schools' 	mission.
Thus, 	in determining employee 	status 	under EERA, 	we must
rely primarily on 	the 	statutory language 	of 	that Act, 	though we
will 	consider, 	in part, 	indicia of employment which are 	similar
to 	those 	developed 	under 	the NLRA, 	where 	they are 	appropriate.
Under EERA subsection 	3540.1(j), 	a public school employee
is defined as:
any person 	employed 	by any public 	school
employer except 	persons 	elected by popular
vote, 	persons 	appointed by the Governor 	of
this state, management employees, 	and
confidential 	employees.
,
In 	Palo Alto Unified 	School 	District/Jefferson Union High
School District 	(1/9/79) 	PERB Decision No. 	84, 	the Board found
substitute 	teachers 	to be 	employees 	within the 	meaning of
subsection 3540.1(j) 	of 	the Act, 	and concluded:
We believe 	that 	the 	[L]egislature 	intended
the 	definition 	of 	'public 	school 	employee'
7The 	construction only of 	similar 	or 	identical 	provisions
of 	the NLRA may be 	used 	to guide 	interpretation 	of 	the EERA.
See, 	e.g., 	San Diego Teachers Association v. 	Superior Court, 	24
Cal. 3d 1, 	12-13? 	Fire Fighters Union v. 	City of Vallejo 	(1974)
12 Cal.3d 608, 	616.
8For 	example, 	under 	the NLRA, 	independent 	contractor or
employee 	status has become 	a 	subject 	of 	litigation 	in a 	few
major 	occupational 	categories 	such 	as 	over-the-road 	truck
drivers, 	newspaper vendors, 	commission salespersons, 	and truck
driver-distributors 	of 	various 	retail 	goods.
15

to be 	inclusive, 	and 	extend broad 	coverage
for 	representation 	and 	negotiating 	rights
for persons who perform services 	for, 	and
receive 	compensation 	from, 	public 	school
employers.
In subsequent 	cases, 	the 	Board has 	continued 	to apply a
broad 	definition 	of 	employee.9
In the 	instant case, 	the 	consultant 	counselors 	fit 	the
definition of 	employee 	under 	the Act 	in 	that 	clearly they work
and 	receive 	compensation 	from the District, 	they provide 	a
service 	to the District, 	and are neither 	appointees 	of 	the
Governor 	nor managerial or 	confidential 	employees. 	The 	fact
that 	each 	applicant 	who 	was 	subsequently hired 	signed 	an
employment 	contract 	which 	stated he 	or 	she was 	"acting 	as 	an
independent 	contractor, 	not 	as 	an agent 	or employee of 	the
district, 	and 	is not 	eligible for 	employee benefits" 	is not
determinative 	since 	that 	is 	the 	issue 	to be 	resolved by the
Board.10
9These 	cases 	have 	found 	that 	various 	categories 	of
teachers 	are 	appropriately included 	in a 	unit 	of 	regular
classroom 	teachers, 	thereby 	implicitly 	finding 	them 	to be
employees 	under 	the Act: 	Dixie Elementary School 	District
(8/11/81) 	PERB Decision No. 	171 	(substitute teachers); 	El Monte
Union High School District 	(10/20/80) 	PERB Decision No. 	142
(home teachers, 	enrichment 	teachers, 	evening continuation
teachers); 	Redwood City Elementary School 	District 	(10/23/79)
PERB Decision No. 	107, 	and Rio Hondo Community College District
(1/25/79) PERB Decision No. 	87 	(summer school teachers); 	Palo
Alto Unified 	School District 	(10/24/83) 	PERB Decision No. 	352
(hourly adult education teachers).
1 0 W e note, 	additionally, 	that 	the ALJ erred 	in relying
upon 	such 	factors 	as 	lack 	of 	bargaining 	unit 	pay and 	fringe
16

The 	counselors 	in 	question possess 	normal 	indicia of
certificated 	employee 	status 	such as 	the 	possession of 	a
state-mandated 	credential, 	acceptance 	of 	counseling 	assignments
from, 	and 	supervision by the 	site principal, 	performance of
their 	services 	at 	the District's 	school 	sites 	and use 	of 	its
supplies 	and 	facilities, 	and 	coordination of 	their counseling
activities 	with 	work 	performed by 	certificated 	employees 	in 	the
negotiating unit. 	There 	is no evidence 	that 	the 	consultant
counselors 	exercised 	any 	greater 	degree 	of 	control 	over 	their
work 	than 	did 	either 	the 	teacher "counselor 	or 	the 	psychologist.
Consequently, 	we 	find 	that 	the 	consultant 	counselors 	are
employees 	based on the EERA's definition of 	employee, 	the 	Board
cases 	cited above, 	and the 	evidence which 	indicates 	that
counselors 	did 	the 	same work, 	in the 	same manner 	and 	in the
same 	places 	as 	the 	counselors had always 	done 	in the 	past 	and
as 	the 	psychologists had 	always done 	and 	continue 	to do.
The Unit 	Question
The ALJ dismissed 	the 	allegation of 	a 	violation of
subsection 	3543.5(c) 	because 	she 	found 	that 	the 	persons 	in
question were 	not 	certificated unit members. 	However, 	the
Association maintains 	that 	the 	counselors 	are 	part 	of 	the
counselor 	classification 	included 	in 	the 	bargaining unit 	which
benefits 	as 	a basis 	for 	concluding 	that 	consultant 	counselors
are 	independent 	contractors 	since 	those 	are 	exactly the matters
in dispute and are within the District's control. 	See
Palo Alto Unified School District, 	supra; 	El Monte Union High
school District (6/30/82) PERB Decision No. 	220.
1 1	
17

it represents. 	It cites Article 	I 	(recognition clause) 	in
support 	of 	its 	position:
all 	permanent 	and 	probationary 	certificated
employees, 	. 	. 	. [including] full-time
and/or 	regular 	part-time 	Psychologists 	and
Counselors 	. 	. 	. 	[are in the unit].
Further, 	it 	contends 	that 	the 	consultant 	counselors 	are
members 	of 	the 	bargaining 	unit 	because 	they performed
bargaining 	unit 	work.
The 	testimony 	indicates 	that 	the 	consultant 	counselors 	did
do bargaining 	unit work. 	Clearly, 	the 	counselors hired 	in
1980-81 	filled 	a 	gap which 	supplemented 	and 	supplanted 	the 	work
that had 	been 	performed by 	counselors 	in 	the 	past 	who had been
members 	of 	the 	unit 	and 	by psychologists 	who 	are 	currently part
of 	the 	unit. 	The District 	does 	not 	dispute 	this 	issue. 	We
thus 	find 	that 	the 	consultant 	counselors 	were 	performing
bargaining 	unit 	work.
However, 	the 	remaining 	issue 	is whether 	the 	fact 	that
consultant 	counselors 	were 	performing 	bargaining 	unit 	work 	is
sufficient 	to 	find 	that 	they are members 	of 	the 	unit. 	There
was 	no 	evidence 	presented 	to 	indicate 	that 	these 	consultant
counselors 	were 	either 	"permanent" 	and/or 	"probationary" 	- a
requirement 	outlined 	in 	the 	recognition 	clause 	of 	the 	CBA
between the parties. 	Therefore, 	even though the consultant
counselors 	are 	employees 	of 	the District, 	we 	find 	that 	they are
not 	members 	of 	the 	unit 	represented by 	the Association.
18

Transfer 	of Work Out 	of 	the Unit
In Rialto Unified 	School 	District 	(4/30/82) 	PERB 	Decision
No. 	209 and 	Solano County Community College District 	(6/30/82)
PERB Decision No. 	219, 	the Board held that 	the decision to
transfer 	work 	from one 	bargaining 	unit 	to 	other 	employees
outside 	of 	that 	particular 	unit 	is 	negotiable as 	long as 	it
impacts 	upon a 	subject 	within 	the 	scope 	of 	representation.
In the 	instant 	case, 	it has been established 	that 	the
consultant 	counselors 	hired by the District 	in 	1981-82,
performed 	much 	of 	the 	same 	work previously performed 	by
counselors 	who were members 	of 	the 	unit 	and much of 	the 	same
work 	currently and 	always 	performed by 	the 	psychologists 	who
are 	in the unit. 	Thus, 	the District has diminished the work of
the 	until 	and 	deprived 	the 	counselor 	or 	psychologist 	unit
members 	of 	actual 	or potential work opportunities, 	thereby
eliminating 	the 	possibility of 	wages 	and hours 	associated 	with
the 	transferred-out 	work. 	Solano County Community College
District, 	supra. 	The 	District's action 	specifically adversely
affected Glenn Elliott, 	a 	psychologist 	and member 	of 	the
bargaining unit 	who had 	sought 	to 	increase his 	time 	from 4 to 	5
days 	per 	week 	but 	was 	told 	the District 	would 	not 	need his
full-time 	services 	since 	the 	consultant 	counselors 	were being
hired. 	In addition, 	the diminution of 	unit work by
11
The 	fact 	that 	the 	District 	discontinued 	the 	use 	of 	the
teacher 	counselors 	in 1977 does 	not 	result 	in 	the 	removal 	of
either 	the 	classification or 	the 	work 	from 	the 	bargaining 	unit.
19

transferring 	functions 	weakens 	the 	collective 	strength 	of
employees 	in the unit. 	Rialto Unified School 	District, 	supra.
Consequently, 	we conclude that, 	absent a valid defense, 	the
District 	violated 	subsection 	3543.5(c) 	when 	it 	unilaterally
transferred 	the 	work 	of 	certificated 	unit 	employees 	to
employees 	outside 	of 	the 	unit 	without 	first 	negotiating with
the exclusive 	representative 	of 	the 	employees.
The 	District 	asserts 	four 	defenses 	for 	its 	unilateral
action. 	First, 	the District maintains 	that 	"Article 	II:
District 	Rights" 	clause of 	the 	agreement 	reserved 	to the
District 	the 	right 	to 	"lawfully 	contract 	out 	work." 	(See
pages 	3-4.)
Having 	mischaracterized 	the 	District's 	conduct 	as
subcontracting work, 	the ALJ 	found 	this 	a 	valid 	defense 	on 	the
part 	of 	the 	District. 	We do not 	find 	that 	this 	language
represents 	a waiver 	on 	the 	part 	of 	the Association because 	to
"contract 	out 	work" 	refers 	to 	subcontracting rights 	which 	the
District may have. 	The District's Rights 	clause 	is
inapplicable 	to 	this 	situation 	since 	the 	instant 	case 	deals
with 	transfer 	of 	work 	out 	of 	the 	unit 	to District 	employees 	not
covered by the 	contract, 	rather 	than 	contracting or
subcontracting.
The 	second 	waiver 	defense 	raised by 	the 	District 	asserts
that 	the Association did 	not 	make 	a 	timely demand 	to negotiate
over 	the matter. 	We disagree 	for 	the 	following reasons.
20

First, 	Bill Gordon, 	an Association representative, 	sent a
letter 	to 	the 	District 	Superintendent 	making 	inquiries 	about
the District's 	plan 	to 	employ 	counselors by means 	of 	the
newspaper 	ad and 	suggesting 	that 	to do 	so would be 	in violation
of 	the 	contract 	between the 	parties. 	Gordon also requested a
meeting to discuss 	the 	matter. 	At a 	subsequent 	meeting, 	the
District 	reiterated 	its 	position 	that 	the 	counselors 	were
independent 	contractors 	and 	not 	employees. 	The Association
demanded 	that 	the District 	rescind 	its 	action 	and 	"restore 	the
status 	quo." 	The Association did not 	make a 	specific 	request
to negotiate 	because 	it 	did 	not 	feel 	it 	was 	necessary to demand
to 	negotiate 	something 	which 	it 	already had by 	contractual
right.
Thus, 	there was 	a clear 	demand on the part 	of 	the
Association 	to meet 	and discuss 	the matter? 	there 	was 	also a
demand 	that 	the 	District 	rescind 	its 	action 	and 	restore 	the
status 	quo. 	The Association did 	not 	request 	to 	negotiate
per 	se because 	it believed 	the 	CBA already preserved 	its
-
position 	that 	the 	consultant 	counselors 	were 	in 	the 	unit. 	In
Newman-Crows Landing Unified School 	District 	(6/30/82) 	PERB
Decision No. 	223, 	the Board indicated that 	it 	is not 	essential
that 	a 	request 	to negotiate be 	specific or made 	in a particular
form. 	Moreover, 	just 	because 	the position the Association
maintained was 	erroneous 	as 	a matter 	of 	law does 	not 	constitute
a 	waiver 	since 	it 	vigorously objected 	to 	the District's 	actions
in a 	timely matter.
21

The District 	next 	argues 	that 	there has 	been a waiver 	on
the 	part 	of 	the Association by its 	failure 	to object 	to the
District's 	established 	past 	practice 	of hiring 	consultants 	to
perform bargaining unit 	work. 	We 	agree 	with 	the ALJ 	that 	there
is 	insufficient 	evidence 	of 	past 	practice 	to 	support 	this
argument.
Finally, 	the District maintains 	that 	the Association's
charge 	solely involves 	a breach of 	contract 	and 	that,
therefore, 	its 	alleged 	failure 	to employ counselors 	pursuant 	to
the 	terms 	of 	the 	contract 	does 	not 	constitute a 	violation of
EERA.12 Whether 	there has 	been 	a breach 	of 	contract 	is 	not
at 	issue here 	since we have 	found 	that 	the 	consultant
counselors 	are 	not 	members 	of 	the 	unit 	covered by the 	contract.
Having 	rejected each of 	the District's defenses, 	we 	find
the 	District has 	violated 	subsection 	3543.5(c) 	by 	transferring
work which had 	been performed by 	unit 	members 	out 	of 	the 	unit
without 	first 	meeting 	and 	negotiating 	with 	the Association.
The 	unilateral 	action by 	the District 	also 	constitutes 	a
concurrent 	deprivation of 	the 	rights 	of 	employees 	to
representation on matters 	relating 	to 	terms 	and 	conditions 	of
12Subsection 	3541.5(b) 	states:
The 	board 	shall 	not 	have 	authority to
enforce agreements between the parties, 	and
shall 	not 	issue 	a 	complaint 	on any charge
based 	on 	alleged 	violation of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair practice 	under 	this 	chapter.
22

employment 	in violation of 	subsection 3543.5(a), 	and of the
rights 	of 	the Association 	to 	represent 	its 	members 	in violation
of subsection 3543.5(b). 	See Rialto, 	supra; 	San Francisco
Community College District, 	supra.
REMEDY
The Association maintains 	that 	a 	return to the 	status 	quo
is 	an appropriate 	remedy. 	We 	find 	that 	an order 	to 	return 	to
the 	status 	quo 	is 	inappropriate 	in this 	case 	since 	there 	is no
evidence 	that 	any 	consultant 	counselors 	were hired 	after 	the
1981-82 	school year.
However, 	it 	is 	appropriate 	to order 	the District 	to cease
and 	desist 	from 	transferring 	work 	out 	of 	the 	unit 	without 	first
negotiating with 	the Association. 	We also order 	the 	District
to 	restore Glenn Elliott 	to 	a 	full-time 	position 	at his 	request
and 	to make him whole with 	interest 	for 	the 	one 	day a week he
was 	unable 	to work 	as 	a 	result 	of 	the District's 	action during
1981-82. 	It 	is also appropriate 	that 	the District post a
notice 	incorporating 	the 	terms of 	the Order. 	Davis Unified
School District et al. 	(2/22/80) 	PERB Decision No. 	116.
ORDER
Pursuant to subsection 3541.5(a), 	(b) and 	(c), 	and based
upon the 	foregoing findings of 	fact, 	conclusions 	of 	law, 	and
the 	entire 	record 	in this 	case, 	the 	Public Employment Relations
Board hereby ORDERS 	that 	the 	Goleta Union 	School 	District 	shall:
23

A. 	CEASE AND DESIST FROM:
1. 	Unilaterally transferring work out 	of 	the 	certificated
unit 	without 	first 	meeting 	and 	negotiating 	in 	good 	faith 	with
the United 	Teaching 	Profession/Goleta/CTA/NEA as 	the 	exclusive
representative 	of 	employees 	in 	the 	unit.
2. 	Denying to 	the United 	Teaching Profession/Goleta/
CTA/NEA rights 	guaranteed by 	the 	Educational 	Employment
Relations Act, 	including the 	right 	to represent 	its members.
3. 	Interfering with 	employees 	in 	the exercise 	of 	rights
guaranteed by 	the 	Educational 	Employment 	Relations 	Act,
including 	the 	right 	to be 	represented by 	their 	chosen
representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. 	Restore 	Glenn Elliott 	to a 	full-time position 	upon his
request 	and make him whole 	for 	the 	economic 	loss he 	suffered
for 	the 	one 	day a week he was 	not 	allowed 	to work as 	a 	result
of 	the District's 	action, 	with interest 	at 	the 	rate of 	seven
(7) 	percent per annum, 	for 	the 	school year 	1981-82.
2. 	Within thirty-five 	(35) 	days 	following 	the date 	the
Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post 	at 	all
work 	locations 	where 	notices 	to 	employees 	customarily 	are
placed, 	copies 	of 	the Notice 	attached 	as 	an Appendix hereto,
signed by an authorized 	agent 	of 	the 	employer. 	Such posting
shall 	be maintained 	for 	a period 	of 	30 consecutive workdays.
24

Reasonable 	steps 	shall be 	taken 	to 	insure 	that 	this Notice 	is
not 	reduced 	in size, 	defaced, 	altered or covered by any
material.
3. 	Written 	notification of 	the 	actions 	taken to comply
with this Order 	shall be made 	to 	the Los Angeles 	Regional
Director 	of 	the 	Public Employment 	Relations 	Board 	in accordance
with her 	instructions.
Members 	Morgenstern and 	Burt 	joined 	in 	this 	Decision.
25

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing in Unfair Practice Case No. 	LA-CE-1516,
United 	Teaching 	Profession/Goleta/CTA/NEA v. 	Goleta 	Union
School 	District, 	in which all parties had 	the 	right 	to
participate, 	it has been 	found that 	the Goleta Union School
District 	violated 	subsection 	3543.5(c) 	of 	the Educational
Employment 	Relations Act 	by failing 	and 	refusing 	to meet 	and
negotiate 	with 	the 	United 	Teaching 	Profession/Goleta/CTA/NEA
with respect 	to 	the 	transfer of work out of 	the 	unit, 	thus
affecting matters 	within the 	scope of 	representation. 	It was
further 	found 	that 	this 	same 	conduct 	violated 	subsection
3543.5(b) 	since 	it denied 	the Association the 	right 	to
represent 	its members, 	and 	also 	interfered with 	employees'
rights 	to be 	represented by 	their 	chosen 	representative 	in
violation of 	subsection 	3543.5(a) 	of 	the Educational Employment
Re1ations Act.
As a 	result 	of 	this 	conduct, 	we have been ordered to post
this Notice, 	and will abide by the 	following. 	We 	will:
A. 	CEASE AND DESIST PROM:
1. 	Unilaterally transferring work out 	of 	the 	certificated
unit 	without 	first 	meeting 	and negotiating in 	good 	faith with
the United 	Teaching 	Profession/Goleta/CTA/NEA as 	the 	exclusive
representative 	of 	employees 	in the 	unit.
2. 	Denying 	to 	the United Teaching 	Profession/Goleta/
CTA/NEA 	rights 	guaranteed by 	the 	Educational 	Employment
Relations Act, 	including the 	right 	to represent 	its members.
3. 	Interfering with 	employees 	in 	the exercise 	of 	rights
guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act,
including 	the 	right 	to be 	represented by 	their 	chosen
representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
Restore 	Glenn Elliott 	to a 	full-time position upon his
request 	and make him whole 	for 	the 	economic 	loss he 	suffered

for 	the 	one 	day a week he was 	not 	allowed 	to work as 	a 	result
of 	the District's action, 	with interest 	at 	the 	rate of 	seven
(7) 	percent per annum, 	for the 	school year 1981-82.
Dated: 	GOLETA UNIFIED SCHOOL 	DISTRICT
By: Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF POSTING AND MUST NOT
BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.