State of California (Department of Developmental Services) (PERB 0484S)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
COMMUNICATIONS WORKERS 	OF AMERICA,
PSYCH 	TECH 	UNION, 	LOCAL 	11555,
AFL/CIO,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT 	OF
DEVELOPMENTAL 	SERVICES),
Respondent.
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____________________ )
CALIFORNIA STATE EMPLOYEES'
ASSOCIATION,
Joined 	Party.
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____________________ )
Case 	No. 	S-CE-86-S
PERB Decision 	No. 	484-S
January 	24, 	1985
Appearances: 	Kanter, 	Williams, 	Merin 	& 	Dickstein 	by 	Nancy 	Kirk
for 	Communications 	Workers 	of America, 	Psych 	Tech 	Union, 	Local
11555, 	AFL/CIO~ 	Jeff 	Gunther, 	Attorney 	for 	State 	of California
(Department 	of 	Developmental 	Services).
Before Tovar, 	Jaeger 	and 	Morgenstern, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is 	before 	the 	Public
Employment 	Relations 	Board 	(PERB 	or 	Board) 	on 	an 	appeal 	filed
by 	the 	Communications 	Workers 	of America, 	Psych 	Tech 	Union,
Local 	11555, 	AFL/CIO 	(CWA) 	to 	a 	portion 	of 	the 	attached
proposed 	decision 	of 	an 	administrative 	law 	judge 	(ALJ).
Specifically, 	CWA 	excepts 	to 	the 	dismissal 	of 	its 	allegation
th~t 	the 	State 	of 	California 	(Department 	of 	Developmental
Services) 	(DDS) 	violated 	the 	State Employer-Employee 	Relations

Act 	(SEERA) 1 by 	unilaterally 	transferring 	work 	out 	of 	the
psychiatric 	technician 	unit 	to 	hospital 	workers 	in 	another 	unit
at 	Stockton 	State 	Hospital. 2
The 	Board 	has 	carefully 	reviewed 	the 	entire 	record 	in 	this
case. 	We 	conclude 	that 	the 	ALJ's 	findings 	of 	fact 	are 	free 	of
prejudicial 	error 	and 	adopt 	them 	as 	the 	findings 	of 	the 	Board
itself. 	We 	affirm 	the 	ALJ's 	dismissal 	of 	this 	charge 	for 	the
reasons 	set 	forth 	below.
DISCUSSION
On 	appeal, 	CWA's 	sole 	claim 	is 	that 	DDS 	made 	an 	unlawful
unilateral 	change 	by 	deciding 	to 	hire 	hospital 	workers 	to
replace 	psychiatric 	technicians, 	through 	a 	process 	of
attrition, 	at 	Stockton 	State 	Hospital. 	Critical 	to 	its 	theory,
CWA contends 	that: 	(1) 	this 	decision 	constitutes 	a 	change 	of
policy 	within 	the 	meaning 	of 	Grant 	Joint 	Union High 	School
District 	(2/26/82) 	PERB 	Decision 	No. 	196; 	(2) 	the 	decision 	is
negotiable 	as 	a 	transfer 	of 	work 	under 	Rialto 	Unified 	School
District 	(4/30/82) 	PERB 	Decision No. 	209, 	Solano County
Community College 	District 	(6/30/82) 	PERB 	Decision No. 	219, 	and
Mt. 	San Antonio 	Community College 	District 	(3/24/83) 	PERB
lThe 	SEERA 	is 	codified 	at 	Government Code 	section 	3512 	et
seq. 	All 	references 	herein 	are 	to 	the 	Government 	Code 	unless
otherwise 	indicated.
2cwA does 	not 	except 	to 	the 	dismissal 	of 	its 	allegations
regarding 	the 	change 	in 	the 	hospital 	worker 	job 	specification
or 	regarding 	any 	change 	at 	State 	hospitals 	other 	than
Stockton. 	Therefore, 	those 	matters 	are 	not 	before 	us.
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Decision 	No. 	297; 	and 	(3) 	the 	decision 	had 	an 	adverse 	impact 	on
psychiatric 	technicians. 	We 	find, 	as 	did 	the 	ALJ, 	that 	each 	of
CWA's 	contentions 	is 	lacking 	in 	merit.
No 	Change 	of 	Policy
Nothing 	in 	CWA's 	contract 	with 	the 	State 	defines 	bargaining
unit 	work, 	reserves 	any 	particular 	duties 	exclusively 	to
members 	of 	the 	unit, 	or 	evidences 	an 	intention 	to maintain 	100
percent 	licensed 	staffing 	at 	Stockton 	State 	Hospital. 	Indeed,
the 	only 	relevant 	contract 	provision 	merely 	requires
maintenance 	of 	minimum adequate 	levels 	of 	staffing 	(including
hospital 	workers) 	as 	established 	by 	the 	Department 	of 	Health.
Thus, 	CWA's 	claim of 	a 	policy 	change 	is 	not 	substantiated 	by
the 	labor-management 	contract. 	Still, 	any 	unilateral 	change 	in
an 	established, 	even 	though 	noncontractual, 	practice 	could
constitute 	a 	violation.
However, 	contrary 	to CWA's 	contentions, 	the 	evidence 	does
not 	indicate 	the 	existence 	of 	an 	established 	practice 	of 	not
hiring 	hospital 	workers 	at 	Stockton 	State Hospital. 	While 	no
hospital 	workers 	were 	employed 	at 	Stockton 	for 	a 	period 	of 	six
months 	from 	10/1/81 	- 	4/1/82, 	previous 	to 	that 	time, 	hospital
workers 	had 	been 	employed 	at 	Stockton, 	as 	at 	the 	other 	State
hospitals, 	though 	in 	fewer 	numbers.
As 	the ALJ 	found, 	the 	overall 	departmental 	policy 	and
practice 	was 	to 	employ 	70-90 	percent 	licensed 	staff 	and 	10-30
percent 	hospital 	workers. 	Stockton's 	temporary 	deviation 	from
this 	statewide 	policy 	is 	insufficient 	to 	establish 	a 	separate
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policy 	or 	practice 	at 	that 	hospital, 	and 	DDS' 	conduct 	to 	bring
Stockton 	into 	compliance 	with 	the 	statewide 	practice 	did 	not
constitute 	a 	change 	of 	policy.
CWA 	misreads 	the 	ALJ's 	decision 	as 	requiring 	that 	"a 	policy
change 	must 	be 	implemented 	statewide 	to 	be 	bargainable." 	In
fact, 	as 	indicated 	above, 	he 	simply 	found 	no 	consistent 	policy
or 	practice 	at 	Stockton 	which 	was 	changed.
No 	Transfer 	of 	Work
In 	Eureka City 	School 	District 	(1/15/85) 	PERB Decision
No. 	481, 	a 	recent 	case 	closely 	analogous 	to 	the 	instant 	case,
the 	teachers 	association 	charged 	that 	the 	district 	had
unlawfully 	transferred 	work 	out 	of 	the 	certificated 	unit 	to 	a
teacher's 	aide 	in 	another 	unit. 	The 	Board 	dismissed 	this
charge, 	finding 	no 	evidence 	that 	the 	teacher 	in 	question 	ceased
to 	perform any 	duties 	which 	had 	been 	assigned 	to 	her 	in 	the
past 	or 	that 	the 	aide 	in 	question 	had 	been 	assigned 	any 	new
duties 	which 	had 	previously 	been 	performed 	only by 	teachers.
As 	the 	Board 	stated:
[I]n 	order 	to 	prevail 	on 	a 	unilateral
transfer 	of 	work 	theory, 	the 	charging 	party
must 	establish, 	as 	a 	threshold 	matter, 	that
duties 	were, 	in 	fact, 	transferred 	out 	of 	the
unit; 	that 	is, 	that 	unit 	employees 	ceased 	to
perform work 	which 	they 	had 	previously
performed 	or 	that 	nonunit 	employees 	began 	to
perform duties 	previously 	performed
exclusively 	by 	unit 	employees. 	However,
where, 	as 	here, 	unit 	and 	nonunit 	employees
have 	traditionally 	had 	overlapping 	duties,
an 	employer 	does 	not 	violate 	its 	duty 	to
negotiate 	in 	good 	faith 	merely 	by 	increasing
the 	quantity 	of 	work 	which 	nonunit 	employees
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perform 	and 	decreasing 	the 	quantity 	of 	work
which 	unit 	employees 	perform.a
8 ••• 	the 	Association 	should 	have
filed 	its 	charge 	at 	the 	time 	that 	nonunit
employees 	first 	began 	performing 	unit 	work,
not 	long 	after 	such 	a 	practice 	became
established. 	(Pp. 	15-16.) 	(Emphasis 	in
original.)
Here, 	as 	in 	Eureka, 	supra, 	at 	all 	relevant 	times, 	many 	of
the 	same 	duties 	were 	performed 	by 	both 	psychiatric 	technicians
and 	hospital 	workers. 	Indeed, 	while 	psychiatric 	technicians
performed 	certain 	nursing 	functions 	which 	unlicensed 	hospital
workers 	were 	not 	permitted 	to 	perform, 	hospital 	workers
performed 	no 	duties 	which 	were 	not 	also 	properly performed 	on
occasion 	by 	psychiatric 	technicians. 	Thus, 	we 	find 	no 	evidence
that 	any 	particular 	duty 	or 	function 	was 	ever 	removed 	from
psychiatric 	technicians 	and 	transferred 	to 	hospital 	workers.
Both 	United Auto 	Workers 	v. 	NLRB 	(D.C. 	Circuit 	1967) 	381 	F.2d
265 	(64 	LRRM 	2489], 	cert. 	den. 	389 	U.S. 	857 	and 	Awry 	Bakeries,
Inc. 	(1975) 	217 	NLRB 	730, 	relied 	on 	by CWA, 	are 	distinguishable
on 	this 	basis.
Similarly, 	during 	the 	relevant 	period, 	no 	new duties 	were
assigned 	to 	hospital 	workers 	which 	they 	had 	not 	previously
performed. 	As 	the 	ALJ 	found, 	any change 	in 	hospital 	worker
duties 	occurred 	prior 	to 	CWA's 	certification 	as 	exclusive
representative. 	Thus, 	Plumbers, 	Local 	669 	v. 	NLRB 	(D.C.
Circuit 	1982) 	676 	F.2d 	826 	(110 	LRRM 	2125] 	is 	also
distinguishable 	from 	this 	case. 	There, 	the 	employer 	maintained
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a 	double-breasted 	operation, 	a 	union 	shop 	to 	bid 	on 	jobs 	that
required 	union 	labor, 	and 	a 	second 	which 	operated 	nonunion.
Over 	time, 	the 	number 	of 	employees 	and 	the 	amount 	of 	work
shifted 	from 	the 	union 	to 	the 	nonunion 	operation. 	The NLRB
dismissed, 	finding 	that 	the 	union 	had 	acquiesced 	in 	the
double-breasted 	operation, 	and 	that 	there 	was 	no 	evidence 	that
union 	work 	had 	been 	transferred 	to 	the 	nonunion 	operation. 	The
court 	disagreed. 	It 	held 	that 	whether 	the 	assignment 	of 	work
constitutes 	a 	transfer 	of 	work 	must 	depend 	on 	the 	pattern 	of
allocation 	established 	by 	the 	past 	practice 	of 	the 	employer.
Citing 	evidence 	that 	the 	nature 	of 	the 	work 	assigned 	to 	the
nonunion 	operation 	had 	changed 	from 	"small 	installation 	jobs
and 	noninstallation 	services" 	to 	"large 	jobs," 	the 	court
remanded 	to 	the 	NLRB 	to 	determine 	whether 	the 	employer 	deprived
the 	union 	of 	work 	which, 	in 	light 	of 	past 	practice, 	it 	would
otherwise 	have 	been 	expected 	to 	perform.
Here, 	as 	noted, 	there 	is 	no 	evidence 	of 	any change 	in 	the
nature 	of 	the 	work 	performed 	by hospital 	workers 	or 	in 	the
"pattern 	of 	allocation 	established 	by 	past 	practice."
Therefore, 	there 	is 	no 	transfer 	of 	work.
No 	Adverse 	Impact
CWA 	excepts 	to 	the 	ALJ's 	ultimate 	finding 	that 	the 	record
contains 	insufficient 	evidence 	of 	adverse 	impact 	on 	the 	working
conditions 	of 	psychiatric 	technicians, 	as 	well 	as 	several
specific 	findings 	which 	lead 	to 	this 	conclusion. 	The 	ALJ's
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findings 	are 	reasonable 	based 	on 	the 	record. 	We 	find 	no 	reason
to 	disturb 	them.
Though 	there 	was 	testimony 	that 	psychiatric 	technicians
felt 	less 	safe 	working 	with 	hospital 	workers 	and 	believed 	they
were 	deprived 	of 	reemployment 	opportunities 	as 	a 	result 	of 	the
increased 	use 	of 	hospital 	workers, 	the 	ALJ 	found 	this 	evidence
"speculative" 	and 	"unconvincing." 	There 	was 	also 	testimony 	as
to 	increased 	workload; 	namely, 	that 	psychiatric 	technicians
were 	responsible 	not 	only 	for 	their 	own 	patients 	but 	also 	for
those 	patients 	assigned 	to 	hospital 	workers, 	and 	that
psychiatric 	technicians 	had 	to 	provide 	on-the-job 	training 	and
to 	"check 	behind" 	hospital 	workers 	to 	see 	that 	their 	clients
were 	properly 	cared 	for. 	However, 	this 	evidence 	of 	increased
workload 	was 	essentially 	rebutted 	by 	evidence 	that 	DDS 	has
employed 	one 	psychiatric 	technician 	for 	every 	two 	clients
consistently 	since 	1979.
As CWA contends, 	psychiatric 	technician 	jobs 	were, 	in 	fact,
lost 	at 	Stockton. 	However, 	having 	found 	that 	the 	hiring 	of
hospital 	workers 	at 	Stockton 	was 	not 	a 	change 	of 	policy but
merely 	the 	application 	of 	longstanding 	statewide 	policy 	at 	that
hospital, 	it 	is, 	therefore, 	necessary 	to 	consider 	impact 	on 	a
statewide 	(i.e., 	unit-wide) 	basis. 	Statewide, 	the 	ratio 	of
psychiatric 	technicians 	to 	hospital 	workers 	actually 	increased
from 	10:1 	to 	11:1 during 	the 	period 	1981 	to 	1983. 	Thus, 	no
diminution 	of 	the 	unit 	is 	shown.
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No 	Negotiable 	Effects
Finally, 	CWA 	argues 	in 	the 	alternative 	that, 	even 	if 	the
changes 	were 	within 	DDS' 	managerial 	prerogative, 	DDS 	had 	a 	duty
to 	negotiate 	regarding 	the 	effects. 	However, 	we 	conclude, 	as
did 	the 	ALJ, 	that CWA 	failed 	to 	demonstrate 	that 	any 	action
taken 	by 	DDS 	during 	the 	period 	following 	the 	certification 	of
CWA 	had 	an 	effect 	upon 	a 	matter 	within 	the 	scope 	of
representation.
ORDER
The 	unfair 	practice 	charge 	in 	Case 	No. 	S-CE-86-S 	is
DISMISSED.
Members 	Tovar 	and 	Jaeger 	joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
COMMUNICATIONS 	WORKERS 	OF AMERICA,
PSYCH TECH 	UNION, 	LOCAL 	11555,
AFL/CIO,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT OF
DEVELOPMENTAL SERVICES),
Respondent.
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___________________ )
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CALIFORNIA STATE EMPLOYEES'
ASSOCIATION,
Joined 	Party.
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___________________ )
Unfair 	Practice
Case 	No. 	S-CE-86-S
PROPOSED DECISION
(12/13/83)
Appearances: 	Nancy 	Kirk, 	Attorney 	(Kanter, 	Williams, 	Merin 	&
Dickstein), 	for 	CWA Psych 	Tech 	Union, 	Local 	11555;
Jeff 	Gunther, 	Attorney, 	for 	the 	State 	of 	California 	(Department
of 	Developmental Services); 	Jeff 	Fine, 	Attorney, 	for 	the
California State Employees' 	Association.
Before 	Ronald 	E. 	Blubaugh, 	Hearing 	Officer.
PROCEDURAL HISTORY
An exclusive 	representative 	here 	contends 	that 	the 	employer
has 	transferred 	bargaining 	unit 	work 	to 	a 	unit 	represented 	by
another 	union. 	The 	employer, 	joined 	by 	the 	second 	union,
denies 	that 	any 	transfer 	of 	work 	has 	occurred.
This 	case 	has 	a 	lengthy 	procedural 	history, 	during 	which
both 	the 	nature 	of 	the 	allegations 	and 	the 	identity of 	the
Respondent 	were 	changed. 	When 	first 	filed 	on 	October 	19, 	1981,
by 	the CWA Psych Tech 	Union, 	Local 	11555 	(hereafter 	CWA), 	the

charge 	alleged 	that 	the 	State 	of California, 	Department 	of
Mental Health, 	had 	commenced 	hiring 	untrained, 	unlicensed,
inexperienced 	student 	assistants 	at Atascadero State 	Hospital.
The 	hiring 	of 	such 	persons 	was 	alleged 	to 	have 	adversely
affected 	the 	working 	conditions 	of 	psychiatric 	technicians. 	At
that 	time, 	CWA was 	not 	yet 	the 	exclusive 	representative 	of
psychiatric 	technicians.
on'January 	20, 	1982, 	the 	charge 	was 	amended 	to 	add 	the
State Department 	of 	Developmental Services 	(hereafter 	State 	or
Department) 	as 	a 	Respondent. 	The 	factual 	allegations 	were
amended 	to 	add 	the 	contention 	that 	job positions 	in 	state
employee 	negotiating 	unit 	no. 	18, 	the 	Psychiatric 	Technician
Unit, 	were 	being 	filled 	by 	hospital 	workers 	who 	were 	not 	unit
members. 	By 	the 	date 	of 	the 	amendment, 	CWA 	had 	been 	certified
as 	the 	exclusive 	representative 	of 	negotiating 	unit 	no. 	18 	and
the 	charge 	alleged 	that 	the 	change 	was made 	without 	meeting 	and
conferring.
On April 	9, 	1982, 	the 	State moved 	to 	dismiss 	the 	charge 	on
two 	grounds: 	that 	the 	charge 	involved 	nonnegotiable 	matters
within 	the 	constitutional 	jurisdiction of 	the 	State 	Personnel
Board 	and 	secondly, 	that 	the 	Charging 	Party was 	itself 	trying
to 	take 	work 	from 	employees 	in 	other 	units.
On April 	30, 	1982, 	CWA amended 	the 	charge 	to 	add 	the
contention 	that 	in 	December 	of 	1981, 	without 	notice 	to CWA, 	the
Department 	had 	initiated 	a 	change 	in 	the 	job description 	for
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hospital 	workers. 	According 	to 	the 	amendment, 	the 	changed 	job
description permits 	a 	greater 	intrusion 	by 	hospital 	workers
into 	the 	work 	of 	psychiatric 	technicians.
On May 	5, 	1982, 	a 	Public Employment 	Relations 	Board
(hereafter 	PERB) 	hearing 	officer 	issued 	an 	order 	partially
granting 	and 	partially denying 	the 	motion 	to 	dismiss. 	The
motion 	was 	granted 	insofar 	as 	the 	amended 	charge 	contested 	the
action 	of 	the 	State 	Personnel Board 	in 	changing 	the 	job
specifications 	of 	hospital 	worker. 	The 	hearing 	officer
reasoned 	that 	changes 	in 	job 	specifications 	are 	an 	inherent
part 	of 	the 	State Personnel Board's 	constitutional 	power 	to
classify. 	The 	motion 	was 	denied 	insofar 	as 	the 	charge 	alleged
that 	the 	Department 	had 	transferred 	work 	from 	one 	unit 	to
another 	and 	that 	the 	assignment 	of 	additional 	duties 	to
hospital 	workers 	and 	others 	had 	an 	impact 	on 	workload 	and
safety.
On June 	29, 	1982, 	CWA 	again 	amended 	the 	charge, 	this 	time
adding 	allegations 	that 	the 	employer 	had 	significantly
increased 	the 	proportion 	of 	patient 	care 	work 	done 	by
unlicensed 	workers 	at 	seven 	hospitals, 	including 	Stockton State
Hospital. 	The 	effect 	of 	this 	change, 	the 	amendment 	asserted,
was 	to 	diminish 	the 	size 	of 	unit 	no. 	18.
On July 	1, 	1982, 	the 	parties 	entered 	an 	agreement 	to 	settle
the 	case. 	However, 	the 	terms 	of 	that 	agreement 	permitted
either 	party 	to 	reactivate 	the 	case 	not 	later 	than 	90 	days
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subsequently. 	On September 	29, 	1982, 	CWA 	exercised 	its 	option
to 	renounce 	the 	agreement 	and 	requested 	that 	the 	matter 	be 	set
for 	a 	hearing.
On December 	14, 	1982, 	CWA 	again 	amended 	the 	charge. 	The
amendment, 	which 	can 	be 	reasonably 	read 	as 	supplanting 	all
earlier 	versions 	of 	the 	charge,l 	deleted 	the 	Department 	of
Mental Health 	as 	a 	Respondent 	and 	set 	out 	two 	concise
allegations:
(1) 	That 	the 	Department 	of 	Developmental Services 	had
initiated 	changes 	in 	the 	job 	description 	of 	hospital 	workers,
permitting 	hospital 	workers 	for 	the 	first 	time 	to perform
"level of 	care" 	functions 	without 	supervision 	of 	licensed
employees. 	This 	change 	allegedly 	resulted 	in 	additional 	work
l1n 	its 	reply 	brief, 	CWA 	seems 	to 	raise 	the 	contention
that 	the State 	denied CWA 	the 	right 	to 	represent 	its members 	by
alleged 	unilateral 	changes 	which 	occurred 	after 	CWA 	filed 	its
representation 	petition 	but 	prior 	to CWA's 	certification as
exclusive 	representative. 	During 	a 	discussion 	at 	the 	hearing,
counsel 	for 	the Charging 	Party 	tacitly 	acknowledged 	that 	the
December 	14, 	1982, 	amendment 	to 	the 	charge 	was 	the 	only matter
at 	issue. 	See 	reporter's 	transcript 	at 	pp. 	400-402. 	For 	a
respondent 	to 	be 	found 	guilty of 	an 	uncharged 	violation, 	the
wrongful 	conduct must 	be 	intimately 	related 	to 	the 	subject 	of
the 	complaint 	or 	arise 	from 	the 	same 	course 	of 	conduct 	and 	the
matter 	must 	have 	been 	fully 	litigated 	at 	the 	hearing. 	San
Ramon Valley 	Unified School 	District 	(8/9/82) 	PERB 	Decision
No. 	230. 	The December 	14, 	1982, 	amendment 	to 	the 	charge
contains 	no 	reference 	to 	events 	which 	predate CWA's
certification 	as 	exclusive 	representative. 	The 	question 	of
alleged 	changes 	which 	occurred 	prior 	to CWA's 	certification 	was
not 	litigated 	and was 	briefed 	only 	by CWA. 	For 	this 	reason,
the 	proposed 	decision 	does 	not 	consider 	whether 	CWA was 	denied
the 	right 	to 	represent 	its 	members 	by 	events 	which 	occurred
prior 	to 	certification.
4

for 	psychiatric 	technicians, 	decreased 	safety, 	reduced 	job
opportunities 	and 	reduced 	opportunity 	to 	work 	overtime.
(2) 	That 	because 	of 	the 	change, 	hospital 	workers, 	who 	are
not members 	of 	unit 	18, 	began 	performing 	unit 	18 	work.
The 	employer 	filed 	timely 	answers 	to 	the 	charge 	and 	its
various 	amendments, 	consistently denying 	that 	it 	had 	made 	any
change 	in a 	negotiable 	matter. 	A complaint 	and 	notice of
hearing 	originally was 	issued 	by 	the 	chief 	administrative 	law
judge 	on December 	1, 	1981. 	An 	amended 	complaint 	was 	issued 	by
the PERB 	General 	Counsel 	on September 	8, 	1983.
A hearing 	was 	conducted 	on September 	12, 	13, 	14, 	15 	and 	16,
1983, 	in Sacramento. 	At 	the 	start 	of 	the 	hearing, 	CWA made 	one
final 	amendment 	to 	the 	charge, 	correcting 	an 	error 	in 	the
citation of 	the 	State Employer-Employee 	Relations 	Act 	provision
which 	the 	employer's 	conduct 	is 	alleged 	to 	have 	violated. 	As
finally 	amended, 	the 	charge 	alleges 	violations 	of 	SEERA
subsections 	3519(a), 	(b) 	and 	(c).2 	The 	amendment was
answered 	on 	the 	record 	by 	the 	Respondent.
2unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government Code. 	The 	State Employer-Employee 	Relations Act
(hereafter 	SEERA) 	is 	found 	at 	section 	3512 	et 	seq. 	In 	relevant
part, 	section 	3519 	provides 	as 	follows:
It 	shall 	be 	unlawful 	for 	the 	state 	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
5

At 	the 	start 	of 	the 	hearing, 	the 	California State
Employees' 	Association, 	the 	exclusive 	representative 	of
hospital 	workers, 	was 	granted 	admission 	to 	the 	hearing 	as 	a
joined 	party 	under 	Title 	8, 	California Administrative Code
section 	32164.3
The 	parties 	filed 	responsive 	briefs, 	the 	last 	of 	which was
received 	on December 	6, 	1983, 	upon which 	date 	the 	case was
submitted 	for 	decision.
FINDINGS 	OF FACT
The 	State 	Department 	of 	Developmental 	Services, 	an 	employer
under 	SEERA, 	operates 	eight 	state 	hospitals 	which 	care
primarily 	for 	persons 	with 	developmental 	disabilities. 	At 	the
time 	of 	the 	hearing, 	approximately 	7,500 	of 	the 	persons 	under
the 	Department's 	care 	were 	developmentally disabled 	and
approximately 	2,000 	were 	mentally 	ill. 	The 	Department's
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 	confer 	in
good 	faith 	with 	a 	recognized 	employee
organization.
3The 	regulation 	permits 	the 	joinder 	of 	a 	party where 	it
is 	determined 	that 	the,
••• 	party has 	a 	substantial 	interest 	in
the 	case 	or 	will 	contribute 	substantially 	to
a 	just 	resolution 	of 	the 	case 	and 	will 	not
unduly 	impede 	the 	proceeding.
6

clients 	range 	in 	disability 	from 	ambulatory 	adults 	who are
capable 	of 	feeding, 	dressing 	and 	bathing 	themselves 	to
bed-ridden, 	incontinent 	persons 	who must 	be 	fed, 	diapered 	and
given 	total, 	personal 	care 	by 	the 	hospital 	staff.
The 	Department's 	hospitals 	are 	organized 	by 	program. 	The
basic organizational 	structure 	is 	called 	a 	"unit" 	or 	"ward"
which, 	depending 	upon 	the 	disability of 	persons 	served, 	is 	a
residential 	setting 	with 	32 	to 	36 	clients. 	There 	are 	four 	to
five 	units 	in 	a 	program 	and 	from 	four 	to 	thirteen 	programs 	in 	a
hospital. 	Each 	program provides 	all 	of 	the 	direct 	services 	a
client 	receives 	on a 	daily 	basis.
Duties 	of Psychiatric Technicians.
The 	employees 	who 	provide 	the 	primary 	care 	and 	treatment
for 	hospital 	clients 	are 	registered 	nurses, 	licensed 	vocational
nurses, 	psychiatric 	technicians 	and 	hospital 	workers. 	As 	of
the 	time 	of 	the 	hearing, 	there 	was 	a 	substantial 	amount 	of
overlap 	in 	their 	respective 	duties, 	particularly 	between
psychiatric 	technicians 	and 	hospital 	workers.
Depending 	upon 	the 	needs 	of 	individual 	clients, 	psychiatric
technicians 	perform 	such 	nursing 	procedures 	as 	the
administration 	of medications 	and 	treatments, 	both 	orally 	and
by 	hypodermic 	injections, 	catheterizations, 	enemas, 	and 	taking
and 	charting 	vital 	signs. 	Psychiatric 	technicians 	also
develop, 	encourage 	and 	lead 	patient 	participation 	in 	group
programs 	and 	activities 	and 	assist 	patients 	in 	eating, 	bathing
7

and 	dressing. 	As 	required, 	they 	also 	clean 	patients 	and
patient 	living 	areas 	and 	they 	escort 	patients 	on 	the 	hospital
grounds 	and 	into 	the 	community.4
4Testimony 	by 	the 	various 	witnesses 	establishes 	that
psychiatric 	technicians 	perform 	all 	of 	the 	duties 	listed 	in 	the
position 	job 	specification. 	Under 	"typical 	tasks," 	the 	job
specification 	for 	psychiatric 	technician 	lists 	the 	following:
Gives 	a 	basic 	level 	of 	general 	and
psychiatric 	nursing 	care 	to mentally 	ill,
emotionally disturbed 	and 	mentally 	retarded
patients; 	works 	with 	other 	disciplines 	as
part of 	the 	treatment 	team 	to provide 	an
overall 	treatment 	program 	for 	the 	patient;
under 	supervision, 	performs 	nursing
procedures 	such 	as 	administering 	medications
and 	treatments, 	including 	oral 	medications,
hypodermic 	injections, 	catheterizations 	and
enemas, 	taking 	and 	charting 	temperature,
pulse 	and 	respiration; 	observes 	patients'
conditions 	and 	behavior; 	reports 	significant
changes 	to 	unit 	supervisor 	or 	physician 	and
records 	nursing 	notes 	on 	patients; 	prepares
patients 	and 	cares 	for 	them during
treatment; 	gives 	first 	aid 	as 	needed.
Helps 	to 	create 	a 	safe 	and 	therapeutic
environment 	for 	patients1 	applies 	mental
hygiene 	principles 	in 	all 	relationships 	with
patients; 	motivates 	patients 	to 	develop
self-reliance 	in 	daily 	living; 	develops,
encourages 	participation 	in, 	and 	supervises
on-the-unit 	group 	and 	individual 	program
activities 	for 	patients; 	assists
rehabilitation 	therapists 	in 	occupational,
recreational, 	and 	industrial 	therapy
programs 	for 	patients; 	assists 	patients 	with
feeding, 	habit 	training, 	and 	maintaining 	a
well-groomed 	appearance1 	keeps 	patients 	and
their 	beds, 	clothing, 	and 	living 	area 	clean;
follows 	safe 	practices; 	protects 	patients
from 	personal 	injury; 	receives 	visitors 	and
encourages 	their 	interest 	in 	the 	patients'
welfare; 	escorts 	patients 	on 	the 	hospital
8

Psychiatric 	technicians 	are 	required 	to 	have 	a 	state-issued
license. 	Prior 	to 	the 	institution 	of 	the 	licensing 	requirement
in 	about 	1968, 	psychiatric 	technicians 	learned 	their 	duties 	and
developed 	their 	skills 	through 	300 	hours 	of 	on-the-job
training. 	Following 	the 	institution of 	licensing, 	prospective
psychiatric 	technicians 	were 	required 	to 	complete 	a 	year-long
community college 	curriculum 	that 	includes 	both 	academic 	and
clinical education. 	The 	academic 	portion 	of 	the 	program
includes 	classes 	in 	anatomy, 	nursing, 	behavioral 	science 	and
treatment 	of 	the 	mentally 	ill. 	In 	the 	clinical 	portion 	of 	the
program, 	students 	are 	supervised 	in 	the 	care 	of 	individual
patients.
In 	1981, 	CWA 	became 	the 	exclusive 	representative 	of 	state
employee 	unit 	no. 	18, 	the 	psychiatric 	technician 	unit.5 	The
representation 	process 	which 	led 	ultimately 	to CWA's
certification commenced 	on 	November 	14, 	1979, 	when 	the
California State Employees' 	Association 	(hereafter 	CSEA) 	filed
grounds, 	and 	to 	and 	from 	the 	community1
orders 	supplies 	as 	needed1 	keeps 	records1
and 	participates 	in 	in-service 	training
programs.
Sstate 	employee 	unit 	no. 	18 	contains 	persons 	in 	the
following 	job classes: 	Psychiatric 	Technician 	Instructor,
Senior 	Psychiatric Technician 	I, 	Psychiatric Technician,
Pre-Licensed 	Psychiatric 	Technician, 	Psychiatric Technician
Trainee, 	Psychiatric 	Technician Apprentice, 	Psychiatric
Technician Training 	Candidate, 	Psychiatric Technician Student,
Child 	Care 	Practitioner, 	Child 	Care 	Practitioner-Trainee,
Developmental 	Specialist.
9

a 	petition 	to 	represent 	a 	unit 	of 	state 	employees 	that 	included
psychiatric 	technicians. 	CWA 	filed 	an 	intervention on
February 	22, 	1980. 	The 	ballots 	for 	an 	initial 	election 	between
the 	competing 	unions 	were 	counted 	on June 	29, 	1981. 	A runoff
election 	was 	required 	and 	the 	ballots 	for 	the 	runoff 	were
counted 	on October 	22, 	1981. 	CWA won 	the 	runoff, 	was 	certified
as 	exclusive 	representative 	for 	unit 	no. 	18 	on November 	17,
1981, 	and 	has 	retained 	that 	status 	continuously 	to 	the 	present.
Duties 	of Hospital Workers.
In 1968, 	at 	about 	the 	same 	time 	as 	the 	state 	instituted
the 	licensing 	program 	for 	psychiatric 	technicians, 	a 	new 	job
class 	- 	hospital 	worker 	- 	was 	created. 	Creation of 	the
hospital 	worker 	classification was 	the 	result 	of 	a 	consensus
among 	several 	advisory 	groups 	concerned 	with 	governmental
efficiency. 	Job 	surveys 	completed 	prior 	to 	1968 	concluded 	that
a 	portion of 	the 	work 	being 	performed 	by psychiatric
technicians 	could 	be 	performed 	by 	employees 	in 	lower-paying
positions. 	It was 	believed 	that 	transfer 	to other 	employees 	of
responsibility 	for 	such 	duties 	as 	cleaning 	and 	bed-making 	would
afford 	psychiatric 	technicians 	more 	time 	for 	treatment. 	No
pre-hire 	credentials 	or 	licenses 	were 	required 	for 	hospital
workers. 	At 	first 	they 	were 	instructed 	entirely 	by 	on-the-job
training. 	Later, 	hospital 	workers 	in 	at 	least 	one 	hospital
were 	required 	to complete 	an 	instructional 	course 	for 	nursing
assistants.
10

Although 	the 	initial 	focus 	of 	the 	hospital 	worker 	position
was 	on 	the 	cleaning 	of 	client 	living 	areas, 	some 	hospital
workers 	provided 	a 	minimal 	amount 	of 	client 	care 	even 	in 	the
early days 	of 	the 	position. 	The 	first 	job 	specification 	for
the 	position 	listed 	among 	typical 	tasks, 	the 	assisting 	of
"nursing 	personnel 	who 	are 	bathing, 	dressing, 	feeding,
toileting 	patients." 	Testimony 	at 	the 	hearing 	established 	that
by 	the 	early 1970's, 	some 	hospital 	workers 	were 	assisting
psychiatric 	technicians 	by 	bathing 	and 	feeding 	clients on 	their
own. 	The 	job of 	hospital 	worker 	thus 	gradually 	evolved 	from
one 	primarily 	focused 	on 	the 	cleaning 	of 	things 	to one
primarily 	focused 	on 	the 	care 	of 	people. 	CSEA 	Representative
Dick 	Hall 	credibly 	testified 	that 	by 1976 	hospital 	worker
duties 	included 	the 	dressing, 	feeding, 	grooming, 	escorting 	and
toileting 	of 	hospital 	residents.
The 	changing 	nature 	of 	hospital 	worker 	duties 	was
accelerated 	when 	the 	state 	employed 	janitors, 	housekeepers 	and
food 	service 	workers 	following 	the 	1978 	approval 	of 	the 	Torres
Act.6 	The 	statute 	provided 	a 	$19 	million 	augmentation 	to 	the
1977-78 	budget 	of 	the 	State Department 	of 	Health. 	With 	the
addition of 	the 	janitors, 	hospital 	workers 	lost 	a 	substantial
portion of 	their 	responsibilities 	for 	cleaning, 	affording 	them
more 	time 	for 	patient 	care.
6chapter 	71, 	Statutes 	of 	1978.
11

The Job 	Specification Change.
The 	State 	Personnel Board 	became 	aware 	of 	the 	changing
nature 	of 	hospital 	worker 	duties 	as 	the 	result 	of 	a 	test
validation 	study which 	was 	completed 	in December 	of 	1980.7 	A
routine 	Personnel Board 	duty, 	test 	validation 	is 	a 	process
which 	seeks 	to 	ensure 	that 	job entry 	requirements 	are
consistent 	with 	the 	skills 	actually 	needed 	to 	perform 	job
duties. 	The 	hospital 	worker 	position was 	selected 	for
validation 	study 	under 	normal 	Personnel Board 	procedures 	and
hospital 	staff, 	including 	both 	hospital 	workers 	and 	psychiatric
technicians, 	were 	interviewed 	as 	part 	of 	the 	study.
Among 	the 	recommendations 	in 	the 	study was 	the 	suggestion
that 	the 	job 	specification 	for 	the 	position of 	hospital 	worker
be 	updated 	"to 	reflect 	changes 	that 	have 	occurred. 0 	It 	is 	a
common Personnel Board 	practice 	to 	change 	job 	specifications 	in
order 	to 	bring 	them 	into 	line 	with 	how 	job duties 	actually 	are
performed. 	The Personnel Board 	report 	suggested 	revision 	of
the 	"typical 	tasks" 	portion of 	the 	hospital 	worker 	job
specification 	as 	follows, 	with 	added 	material 	in 	underline 	and
deleted material 	in 	strikeout:
7The State Personnel Board 	report 	on 	the 	job 	validation,
CWA Exhibit 	No. 	1, 	in 	describing 	the 	methodology 	for 	the 	study,
states 	that 	22 	incumbent 	hospital 	workers 	were 	interviewed 	by
the 	Personnel Board 	staff 	in 1977. 	An 	additional 	eight 	were
interviewed 	in 1979. 	On 	the 	basis 	of 	these 	statements, 	it 	is
obvious 	that 	the 	test 	validation 	study was 	in 	progress 	as 	early
as 	1977.
12

Typical Tasks:
Performs 	routine 	housekeeping 	tasks 	such 	as
sweeping, 	mopping 	and 	waxing 	floors, 	washing
walls 	and windows, 	cleaning 	bathrooms 	and
lavatories; 	cleans, 	dusts, 	and 	polishes
furniture, 	fixtures, 	and 	woodwork; 	operates
scrubbers, 	buffers, 	waxers, 	and 	other
equipment 	and 	machinery; 	empties 	and 	cleans
waste 	receptacles; 	assists 	in moving 	and
arranging 	furniture 	and 	equipment; 	handles
cleaning 	and 	housekeeping 	supplies;
receives, 	counts, 	folds, 	stores, 	and 	issues
clean 	linen 	and 	clothing; 	handles 	and 	sorts
soiled 	linen 	and 	clothing; 	changes 	bed 	linen
and makes 	and 	washes 	beds; 	marks, 	mends 	and
irons 	clothing; 	operates 	clothes 	washers 	and
dryers;
w•t' transports 	food 	carts 	to 	and 	from
unit; 	cleans 	tables 	and 	dirty 	dishes;
operates 	dishwashers; 	disposes 	of 	garbage;
assists 	in 	the 	~-t, 	unit 	dining 	room 	as
needed; 	assists 	nursing 	services 	personnel
r/1~~ 	•t~ 	in 	bathing, 	dressing, 	grooming,
feeding, 	toileting, 	and 	implementing
behavioral, 	developmental 	and 	social
training 	programs 	of 	patients; 	escorts
selected 	patients 	to 	and 	from W-t~ 	unit;
empties 	bedpans; 	runs 	off-~pt~ 	unit 	e~rands;
a:s sist:s,.~ on 	the r/Jlii:¢ 	unit 	as 	needed.
Department 	of 	Developmental Services 	administrators
reviewed 	the 	Personnel Board 	study 	and 	recommendations 	and
concluded 	that 	the 	proposed 	job specification change 	was
acceptable. 	The 	Department 	suggested 	several 	minor8
8rn 	its 	brief, 	CWA 	argues 	that 	•the 	significant 	changes
that 	were 	ultimately 	adopted 	by 	SPB 	in 	the 	job description 	were
those 	recommended 	by DDS.•
Probably 	the 	most 	significant 	change 	in 	the 	job description
is 	a 	revision 	which 	makes 	it 	clear 	that 	hospital 	workers 	are
not 	required 	to 	be 	in 	direct 	proximity 	to 	nursing 	services
personnel 	when 	performing 	certain 	duties. 	This 	change occurred
in 	two 	places 	on 	the 	job 	specification. 	In 	a 	section 	where
"typical 	tasks" 	of 	hospital 	workers 	are 	described, 	the
13

modifications 	in 	the 	proposed 	revision 	and 	the 	job
specification change 	was 	approved 	by 	the 	State 	Personnel Board
at 	its 	December 	16, 	1981 meeting. 	CSEA, 	as 	exclusive
representative 	of 	hospital 	workers, 	was 	consulted 	prior 	to 	the
change 	and 	agreed 	with 	the 	proposal. 	CWA was 	not 	consulted.
Personnel Board 	staff 	proposed 	removal 	of 	words 	which 	suggested
that 	hospital 	workers 	should 	perform 	certain 	tasks 	while 	in
close proximity 	to 	nursing 	services 	personnel. 	When Department
administrators 	received 	the 	Personnel Board 	recommendation,
they 	accepted 	that 	change 	and 	suggested 	a 	similar 	change 	be
made 	in 	the 	"job characteristics" 	portion 	of 	the 	job
specification.
On 	the 	basis 	of 	the 	sequence 	of 	the 	changes, 	the 	hearing
officer 	concludes 	that 	this 	key 	change 	originated 	with 	the
State Personnel Board. 	The 	Department's 	suggestion merely
brings 	the 	other 	part 	of 	the 	job 	specification 	into 	conformity
with 	what 	the 	Personnel Board 	already 	had 	proposed.
Overlap Between 	the 	Jobs.
Both 	by 	job 	specification 	and 	by 	actual 	practice 	since 	the
late 	1970's, 	there 	is 	a 	great 	deal 	of 	overlap 	between 	the
duties 	of 	psychiatric 	technicians 	and 	hospital 	workers. 	Both
types 	of 	employees 	assist 	hospital 	residents 	in 	feeding,
bathing, 	dressing, 	maintaining 	a 	clean 	appearance 	and 	in
toileting. 	Both 	types 	of 	employees may 	escort 	clients 	to 	and
from 	their 	living 	units. 	Testimony 	at 	the 	hearing 	established
that 	if 	a 	psychiatric 	technician 	performed 	all 	the 	duties 	of 	a
hospital 	worker, 	he 	or 	she 	would 	still 	be 	working 	within 	the
job description 	for 	psychiatric 	technician. 	Department
administrators 	believe 	this 	overlap 	in 	functions 	provides
flexibility 	and 	reduces 	costs.
14

For 	all 	the 	commonality 	between 	psychiatric 	technicians 	and
hospital 	workers, 	there 	are 	two 	significant 	distinctions
between 	the 	positions. 	First, 	psychiatric 	technicians 	are
empowered 	by 	their 	licenses 	to perform certain medical
functions 	which 	the 	unlicensed 	hospital 	workers 	are 	precluded
from 	performing. 	Second, 	psychiatric 	technicians 	are 	empowered
to operate 	with 	a 	level 	of 	independent 	judgment 	in 	the 	care 	of
hospital 	residents. 	Hospital 	workers 	are 	supposed 	to 	care 	for
patients 	only 	under 	the 	guidance 	of 	licensed 	persons.
There was 	no 	persuasive 	evidence 	that 	hospital 	workers
perform 	any 	of 	the medical 	duties 	of 	psychiatric 	technicians.
Only psychiatric 	technicians 	or 	other 	licensed 	employees 	give
medications 	to 	patients 	or 	perform 	such 	nursing 	services 	as
administering 	hypodermic 	injections, 	catheterizations 	and
enemas. 	There 	was 	evidence 	that 	hospital 	workers 	count 	and 	log
incidents of 	certain 	types 	of 	client 	behavior, 	such 	as
self-destructive 	hitting. 	This 	practice, 	which 	is 	known 	as
"data collection," 	is 	within 	the 	scope 	of 	hospital 	worker
duties. 	There 	also 	was 	evidence 	of 	isolated 	instances 	where
hospital 	workers 	have 	made 	entries 	in 	client 	charts. 	However,
the 	practice 	is 	stopped 	when discovered 	by 	higher
administrators 	and 	it 	is 	clear 	that 	such 	acts 	are 	against
Department 	rules.
More 	difficult 	is 	the 	question of 	whether 	hospital 	workers
are 	encroaching 	upon 	psychiatric 	technician 	duties 	by 	the
15

assumption of 	an 	improper 	level 	of 	independence. 	It 	is
Department policy 	that 	hospital 	workers 	are 	to 	assist 	licensed
employees 	and 	not 	to 	work 	independently. 	Hospital 	workers 	at
all 	times 	are 	supposed 	to 	work 	under 	the 	guidance 	of 	a 	licensed
person when 	they 	are 	caring 	for 	a 	client.
Nowhere 	is 	the 	controversy 	about 	hospital 	worker
independence more 	apparent 	than 	in 	their 	work 	with 	groups 	of
residents. 	The 	job specification 	for 	psychiatric 	technician
states 	that 	a 	technician" ••• 	develops, 	encourages
participation 	in, 	and 	supervises 	on-the-unit 	group 	and
individual program activities 	for 	patients •••• " 	There 	is 	no
comparable 	statement 	of 	duties 	in 	the 	job description 	for
hospital 	worker. 	It 	is 	in 	this 	context 	that 	most 	of 	the
dispute 	arises.
In 	an 	effort 	to 	establish 	that 	hospital 	workers 	lead 	groups
of 	residents, 	CWA 	witnesses 	testified 	about 	practices 	at 	both
Stockton 	and 	Camarillo State 	Hospitals. 	Marjorie Jackson, 	a
psychiatric 	technician 	at Stockton, 	was 	the 	acting 	shift
manager 	when a 	hospital 	worker 	was 	assigned 	to 	her 	shift 	on
September 	2, 	1983. 	She 	said 	she 	assigned 	him 	responsibility
for 	eight 	clients 	on 	his 	first 	day on 	the 	job. 	She 	said 	this
was 	consistent 	with 	prior 	instructions 	that 	psychiatric
technicians 	were 	to 	show 	new 	hospital 	workers 	how 	to 	feed,
position 	and 	change 	the 	diapers 	of 	the 	severely 	disabled
clients 	in 	her 	unit. 	She 	testified 	that 	the 	only 	limitation on
16

hospital 	workers 	was 	that 	they 	were 	not 	to 	give 	patients
medications 	or 	treatments. 	Other 	than 	that, 	the 	hospital
worker 	feeds, 	bathes 	and 	cares 	for 	his 	eight 	clients 	the 	same
as 	the 	licensed 	psychiatric 	technicians. 	She 	testified 	that
whichever 	psychiatric 	technician 	is 	working 	near 	the 	hospital
worker 	"checks 	on him 	to make 	sure 	that 	he's 	doing 	what 	he's
supposed 	to 	with 	his 	clients." 	She 	said 	that 	the 	shift 	lead
has 	the 	ultimate 	responsibility 	for 	the 	eight 	clients 	assigned
to 	the 	hospital 	worker.
James Mcwilliams, 	another 	Stockton psychiatric 	technician,
testified 	that 	in 	early 	1982, 	hospital 	workers 	were 	assigned
the 	independent 	responsibility 	for 	groups 	of 	clients. 	After
about 	six months, 	he 	said, 	the 	hospital 	discontinued 	the
practice 	of 	allowing 	hospital 	workers 	to 	have 	their 	own 	primary
groups 	and 	stopped 	them from making 	entries 	on 	client medical
charts. 	After 	the 	change, 	hospital 	workers 	continued 	to 	work
with 	groups 	of 	clients 	but 	they 	no 	longer 	had 	the 	primary
responsibility 	for 	them.
Gerry Brown, 	a 	program director 	at 	Stockton called 	by 	the
State, 	testified 	that 	hospital 	workers 	currently 	perform 	the
same 	types 	of 	services 	at 	Stockton 	as 	performed 	in 	the 	1970's
by 	hospital 	workers 	at 	Napa State 	Hospital. 	He 	testified 	that
in 	both 	hospitals 	the 	hospital 	workers 	bathed 	and 	fed 	clients
and 	changed 	the 	clothing 	of 	clients. 	In 	neither 	place 	did
hospital 	workers 	give 	medical 	treatments, 	administer
17

medications 	or 	make 	entries 	in 	the 	medical 	charts 	of 	clients.
Always, 	he 	testified, 	a 	licensed 	person 	had 	the 	ultimate
responsibility 	for 	the 	care 	of 	clients.
Barbara Long, 	a 	psychiatric 	technician 	at 	Camarillo State
Hospital 	who 	was 	a 	witness 	for 	CWA, 	testified 	that 	hospital
workers 	escort 	large 	groups 	of 	residents 	for 	long 	periods 	of
time, 	make 	decisions 	about 	when 	to 	implement 	a 	treatment
program, 	make 	recommendations 	about 	the 	use 	of 	a 	chemical
restraint 	and 	generally 	function 	as 	group 	leaders. 	On
cross-examination, 	Ms. 	Long 	testified 	that 	with 	the 	exception
of 	taking 	vital 	signs, 	she 	has 	not 	seen 	hospital 	workers
perform 	any 	of 	the 	nursing 	duties 	which 	are 	limited 	to 	licensed
persons. 	With 	respect 	to 	taking 	vital 	signs, 	she 	testified
that 	she 	had 	seen 	hospital 	workers 	perform 	this 	task 	"some 	of
the 	time." 	Regarding 	her 	testimony 	that 	hospital 	workers 	make
decisions 	about 	implementation of 	treatment 	programs, 	she
acknowledged 	that 	hospital 	workers 	in 	fact 	only 	carry out
behavioral 	plans 	designed 	by 	professional 	employees. 	It 	also
became 	clear 	on 	cross-examination 	that 	even 	when 	hospital
workers 	are 	assigned 	to work 	with 	a 	group of 	residents, 	a
licensed 	person must 	approve 	any 	unusual 	activity, 	such 	as
taking 	clients 	for 	a 	walk 	or 	using 	restraints 	on 	a 	particular
client.
Beverly 	Doran, 	a 	unit 	supervisor 	at 	Camarillo who 	was
called 	as 	a 	witness 	for 	the 	State, 	testified 	that 	hospital
18

workers 	in 	her 	unit 	perform 	both 	cleaning 	and 	patient 	care.
She 	said 	they 	have 	done 	both 	types 	of 	duties 	for 	the 	six 	years
she 	has 	been 	at Camarillo. 	She 	said 	when 	hospital 	workers 	are
caring 	for 	a 	group of 	clients 	they 	are 	under 	the 	guidance 	of 	a
psychiatric 	technician or of 	the 	shift 	lead.
To some 	degree, 	the 	question 	about 	whether 	hospital 	workers
are 	independently 	responsible 	for 	groups 	of 	clients 	has 	been
brought 	into 	focus 	by 	changing 	physical 	conditions 	within 	the
hospitals. 	When 	hospital 	workers 	first 	began 	to 	work 	with
residents 	on a 	one-to-one 	basis, 	hospital 	units 	contained 	large
dormitories. 	Bathrooms 	had 	no 	partitions 	and 	showers 	had 	no
stalls. 	Client 	care 	activities 	such 	as 	dressing, 	bathing,
grooming, 	toileting 	were 	performed 	in 	front 	of 	other 	clients
and 	other 	employees. 	In 	that 	work 	environment, 	psychiatric
technicians 	and 	hospital 	workers 	could 	join 	as 	a 	team 	with 	the
hospital 	worker 	directly 	assisting 	the 	psychiatric 	technician.
Beginning 	in 1979-80, 	the 	Department 	commenced 	the
rennovation of 	its 	hospitals 	in order 	to 	bring 	them 	up 	to
modern 	fire, 	life 	safety 	and 	environmental 	standards. 	In 	the
process, 	significant 	steps 	were 	taken 	to 	afford 	residents 	more
privacy. 	Partitions 	were 	installed 	in 	the 	toilets, 	stalls 	in
the 	showers 	and 	the 	large 	dormitories 	were 	divided 	into
four-person 	bedrooms. 	Changes 	in 	resident 	care 	followed 	the
structural 	rennovations. 	No 	longer 	were 	patients 	taken 	to 	the
bathroom or 	the 	showers 	in 	large 	groups. 	Residents 	slept 	and
19

dressed 	in 	the 	smaller 	rooms. 	Under 	the 	new 	living
arrangement, 	it often 	is 	impossible 	for 	psychiatric 	technicians
and 	hospital 	workers 	to 	work 	in 	close 	proximity 	as 	a 	team. 	In
order 	to assist 	a 	psychiatric 	technician 	with 	dressing 	or
bathing 	a 	resident, 	the 	hospital 	worker 	may 	now 	be 	in 	a
different 	room. 	Hospital workers 	and 	psychiatric 	technicians
often 	do 	not 	work 	within 	line 	of 	sight 	under 	the 	new 	hospital
configurations, 	although 	they 	typically 	remain 	within 	sound 	of
voice.
Efforts 	to Stop Out-of-Class Assignments.
The 	Department 	acknowledges 	that 	hospital 	workers 	have
sometimes 	been 	placed 	in 	charge 	of 	groups 	of 	residents. 	The
practice 	has 	been 	challenged 	from 	as 	long 	ago 	as 	1978 	by
several 	employee 	organizations, 	including 	the 	California
Association 	of 	Human Services Technologists 	and 	the 	California
State Employees' 	Association. 	A major 	attack 	on 	the 	practice
was mounted 	in 1980 	by Local 	411 	of 	the 	Service Employees
International Union 	(hereafter 	SEIU). 	On August 	4 of 	that
year, 	SEIU 	filed 	a 	grievance 	contending 	that 	hospital 	workers
were 	performing 	out-of-class 	duties 	at 	Lanterman State 	Hospital.
Following 	investigation 	of 	the 	SEIU out-of-class 	claims,
the 	Department 	sent 	a 	series 	of 	memos 	to 	hospital 	executive
directors, 	instructing 	them 	not 	to 	assign 	hospital 	workers 	as
the 	independent 	leaders 	of 	groups 	of 	clients. 	In 	a December 	8,
1980, 	memorandum 	to 	the 	acting 	executive 	director 	of 	Lanterman
20

State Hospital, 	Department 	Deputy Director 	Bamford 	Frankland
complained 	that 	despite 	departmental 	instructions 	to 	the
contrary, 	some 	units 	at Lanterman 	continued 	to 	assign
out-of-class 	duties 	to 	hospital 	workers. 	He 	stated 	that 	18 	of
67 	hospital 	workers 	at Lanterman 	had 	been 	assigned 	questionable
duties. 	Frankland 	wrote 	that 	assignment 	of 	hospital 	workers 	as
group 	leaders 	"is 	clearly 	out-of-class 	for 	a 	hospital 	worker,
except 	under 	emergency 	circumstances."
The 	memo 	states 	that 	"disciplinary 	action 	could 	be 	taken
against 	managers 	and 	supervisors 	who 	repeatedly 	and 	knowingly
assign or 	condone 	out-of-class 	work." 	Mr. 	Frankland 	warned
that 	he 	would 	"request 	that 	appropriate 	disciplinary 	action" 	be
taken 	against 	responsible 	supervisors.
On February 14, 	1981, 	the 	Department 	responded 	to 	the
out-of-class 	complaint made 	the 	previous 	summer 	by SEIU. 	The
Department 	agreed 	that 	the 	four 	named 	grievants 	had 	performed
out-of-class 	work 	at Lanterman 	and 	directed 	their 	reimbursement
in 	the 	pay category of 	hospital 	aide. 	Specifically, 	the
Department 	acknowledged 	that 	the 	hospital 	workers 	had
improperly 	been 	assigned 	responsibility 	for 	groups 	of 	patients
and 	the 	union 	was 	informed 	about 	the 	December 	8 directive 	to
the 	hospital 	executive 	director.
In 	a 	further 	effort 	to 	halt 	the 	use 	of 	hospital 	workers 	in
out-of-class 	assignments, 	Deputy 	Director 	Frankland 	on June 	26,
1981, 	sent 	a memorandum 	to 	the 	executive 	directors 	of 	all
21

hospitals. 	The memo 	discussed 	the 	overlap of 	hospital 	worker
duties 	with 	the 	duties 	of 	other 	classes 	and 	specifically 	stated
that 	hospital 	workers 	should 	not 	be 	assigned 	to 	work 	alone 	with
groups 	of 	patients. 	In 	relevant 	part, 	the 	memo 	reads 	as
follows:
••• 	only 	licensed 	staff 	are 	to 	be 	assigned
alone 	to a 	group of 	residents. 	If
necessary, 	groups 	should 	be 	combined 	so 	that
Hospital Workers 	will 	never 	be 	alone 	with
residents, 	but 	it 	should 	not 	be 	routinely
scheduled 	and 	should 	only 	occur 	for 	brief
periods 	of 	time. 	When 	a 	Hospital Worker 	is
alone 	with 	residents, 	he/she 	should 	be
within 	voice 	range 	and 	preferably within 	the
same 	room 	as 	a 	licensed 	staff 	member. 	The
only 	exception 	is 	when 	a 	Hospital Worker 	is
escorting 	a 	resident 	on 	the 	grounds, 	but
judgment 	should 	be 	exercised 	about 	the 	type
of 	resident 	left 	with 	the 	Hospital Worker.
Linda Stephenson, 	the 	department 	labor 	relations
specialist, 	who 	composed 	the 	June 	26 memorandum 	for
Mr. 	Frankland, 	testified 	that 	the 	purpose 	of 	the 	document 	was
to 	stop 	the 	use 	of 	hospital 	workers 	as 	group 	leaders. 	She 	said
the 	number 	of 	out-of-class 	claims 	by 	hospital 	workers 	dropped
significantly 	following 	the 	issuance 	of 	the 	memorandum. 	Prior
to 	its 	issuance, 	the memo was 	reviewed 	by CSEA 	and SEIU which
then 	were 	in 	competition 	to 	become 	exclusive 	representative 	of
state 	unit 	15 	which 	contains 	hospital 	workers.
Ms. 	Stephenson 	testified 	that 	the 	policy 	contained 	in 	the
June 	26, 	1981, 	memorandum 	remains 	the 	departmental 	rule 	on
whether 	hospital 	workers 	can 	be 	assigned 	responsibility 	for 	a
group of 	residents. 	She 	said 	the 	Department 	makes 	efforts 	to
22

halt 	the 	use 	of 	hospital 	workers 	as 	group 	leaders 	whenever 	it
learns 	of 	such 	practice. 	This 	contention 	was 	confirmed 	by
Dick 	Hall, 	a 	CSEA 	staff 	employee 	called 	as 	a 	witness 	by 	the
State. 	Mr. 	Hall 	said 	that 	whenever 	he 	learns 	of 	and 	complains
about 	the 	use 	of 	a 	hospital 	worker 	as 	a 	group 	leader 	the
practice 	is 	halted.
Distribution of 	the Workforce.
Within 	the 	state 	hospital 	system 	there 	are 	significantly
more 	psychiatric 	technicians 	than 	hospital 	workers. 	Indeed, 	in
recent 	years 	the 	number 	of 	psychiatric 	technicians 	has
increased 	relative 	to 	the 	number 	of 	hospital 	workers. 	On
December 	1, 	1979, 	the 	Department 	employed 	5,631.75 	psychiatric
technicians 	and 	648.5 	hospital 	workers, 	a 	ratio 	of 	nine
psychiatric 	technicians 	per 	hospital 	worker. 	On October 	1,
1981, 	the 	closest 	date 	to 	the 	time 	of 	CWA's 	certification 	for
which 	figures 	were 	available, 	the 	Department 	employed 	5,682.65
psychiatric 	technicians 	and 	562.75 	hospital 	workers, 	a 	ratio 	of
10 psychiatric 	technicians 	per 	hospital 	worker. 	As 	of July 	1,
1983, 	there 	were 	5,034.8 	psychiatric 	technicians 	and 	469.5
hospital 	workers, 	a 	ratio 	of 	11 psychiatric 	technicians 	per
hospital 	worker. 	The 	number 	of 	clients 	declined 	by 13 percent
over 	the 	three-and-one-half 	years.
Deputy 	Director 	Frankland 	testified 	that 	although 	the
Department 	affords 	the 	individual 	hospitals 	a 	great 	degree 	of
latitude 	in 	hiring, 	he 	does 	have 	a 	guideline 	by which 	he
23

monitors 	the 	local 	decisions. 	Since 	about 	1977-78, 	the
Department 	has 	attempted 	to 	ensure 	that 	between 	70 	and
90 	percent 	of 	the 	treatment 	staff 	at 	each 	hospital 	is 	comprised
of 	licensed 	employees, 	primarily psychiatric 	technicians 	and
nurses. 	Although 	there 	are 	year-to-year 	and 	hospital-to-
hospital 	fluctuations, 	all 	but 	three 	hospitals 	- 	Fairview,
Agnews 	and 	Stockton 	- 	have 	stayed 	within 	the 	desired 	range.
Mr. 	Frankland 	testified 	that 	Fairview 	in particular 	has 	had
great 	difficulty 	in 	enticing 	licensed 	applicants 	to 	accept 	jobs
because 	housing 	costs 	are 	very 	high 	in 	the 	surrounding
community. 	He 	said 	that 	on 	occasion 	the 	proportion of 	the
Fairview 	staff 	which 	is 	licensed 	has 	fallen 	to 	as 	low 	as
52 	percent. 	Over 	the 	period 	covered 	by 	the 	charge, 	however,
there 	has 	been 	a 	significant 	increase 	in 	the 	number 	of
psychiatric 	technicians 	per 	hospital 	worker 	at 	Fairview. 	On
December 	1, 	1979, 	there 	were 	4.7 	psychiatric 	technicians 	per
hospital 	worker 	at Fairview. 	By July 	1, 	1983, 	there 	were
9.6 	psychiatric 	technicians 	per 	hospital 	worker.
The Stockton Changes.
At Stockton, 	the 	Department 	has 	encountered 	the 	opposite
problem 	from 	Fairview, 	more 	licensed 	applicants 	than 	needed.
Over 	a 	six-month 	period 	in 	late 	1981 	and 	early 	1982, 	Stockton
employed 	no 	hospital 	workers, 	giving 	it 	a 	treatment 	staff 	that
was 	100 	percent 	licensed. 	Recruitment 	of 	licensed 	employees 	at
Stockton 	is 	easy 	because 	the 	Department 	operates 	a 	training
24

program 	for 	psychiatric 	technicians 	at 	the 	hospital 	and 	its
graduates 	are 	a 	ready 	source 	of 	trained 	employees.
A small 	hospital, 	Stockton 	ranges 	in 	size 	from 	500 	to 	550
residents 	whereas 	other 	Department 	hospitals 	have 	more 	than
1,000 	residents. 	In part 	because 	of 	small 	size 	and 	loss 	of
economy of 	scale, 	client 	care 	at Stockton 	costs 	about 	$5,000
more 	per 	client 	per 	year 	than 	at 	other 	Department 	hospitals.
In 	an 	effort 	to 	reduce 	costs, 	the 	Department 	has 	encouraged
hospital 	administrators 	at Stockton 	to 	review 	their 	staffing 	as
a 	possible 	way 	of 	bringing 	the 	hospital's 	per 	client 	treatment
costs 	closer 	to 	the 	statewide 	norm. 	Following 	this 	suggestion,
more 	hospital 	workers 	were 	hired 	at Stockton. 	On December 	1,
1979, 	Stockton 	had 	397 	psychiatric 	technicians 	and 	two 	hospital
workers, 	a 	ratio of 	198.5 	psychiatric 	technicians 	per 	hospital
worker. 	On October 	1, 	1981, 	the 	date 	closest 	to 	the 	time 	of
CWA's 	certification 	for 	which 	figures 	were 	available, 	Stockton
had 	329.5 	psychiatric 	technicians 	and 	no 	hospital 	workers. 	As
of 	July 1, 	1983, 	the 	hospital 	had 	314 	psychiatric 	technicians
and 	27 	hospital 	workers, 	a 	ratio 	of 	11.6 	psychiatric
technicians 	per 	hospital 	worker. 	This 	change 	was 	brought 	about
through 	normal 	attrition 	and 	subsequent 	replacement 	hiring.
There 	were 	no 	layoffs.
Effect 	on Psychiatric Technicians.
CWA presented 	evidence 	intended 	to 	show 	that 	the 	alleged
expansion of 	hospital 	worker 	duties 	throughout 	the 	system
25

adversely 	affected 	the 	job 	safety of 	psychiatric 	technicians,
hampered 	their 	ability 	to 	be 	reemployed 	and 	resulted 	in 	a 	loss
of 	overtime. 	CWA 	also 	presented 	evidence 	to 	show 	that 	the
alleged 	change 	increased 	the 	duties 	of 	psychiatric 	technicians.
Barbara Long, 	a 	psychiatric 	technician 	at Camarillo State
Hospital, 	testified 	that 	she 	voluntarily 	transferred 	from 	one
program 	to 	another 	because 	the 	hospital 	worker 	with 	whom 	she
worked 	did 	not 	understand 	•the 	sophistication 	of 	any 	behavior
modification 	plan.• 	James Mcwilliams, 	a 	psychiatric 	technician
at 	Stockton, 	testified 	that 	he 	•felt 	threatened• 	when he 	worked
in a 	unit 	with 	two 	hospital 	workers. 	He 	said 	that 	as 	a 	union
representative 	he 	has 	had 	complaints 	from 	other 	psychiatric
technicians 	about 	their 	fears 	for 	safety.
The 	record 	establishes 	that 	hospital 	workers 	get 	the 	same
amount 	of 	training 	in 	the 	management 	of 	assaultive 	behavior 	as
do 	psychiatric 	technicians. 	However, 	probably more 	important
than 	training 	is 	experience 	in 	working 	with 	developmentally
disabled 	patients. 	More 	experienced 	employees 	have 	a 	greater
ability 	to 	recognize 	the 	signs 	of 	an 	incipient 	problem and 	thus
ward 	it 	off. 	In 	this 	regard, 	new 	employees 	in 	any 	job class
present 	problems 	for 	more 	experienced 	workers, 	although 	a 	new
psychiatric 	technician 	enters 	a 	hospital 	with 	some 	clinical
experience 	which 	a 	new 	hospital 	worker 	does 	not 	possess.
With 	respect 	to 	reemployment, 	Joan LeGrand 	testified 	that
she 	had 	been 	unsuccessful 	in 	her 	efforts 	to 	obtain a
26

psychiatric 	technician 	job at Stockton. 	She 	had 	been 	employed
as 	a 	psychiatric 	technician 	at 	the 	hospital 	from 1979 	to 	1982.
She 	resigned 	in 	order 	to 	care 	for 	her 	seriously 	ill 	mother. 	In
July of 	1983, 	she 	requested 	reinstatement 	as 	a 	psychiatric
technician. 	Her 	request 	was 	denied. 	She 	attributed 	the 	denial
to 	the 	replacement 	of 	psychiatric 	technicians 	by 	hospital
workers 	at Stockton. 	Ms. 	LeGrand 	did 	not 	seek 	employment 	as 	a
psychiatric 	technician 	at 	any 	other 	state 	hospital. 	Despite
denial 	of 	reinstatement 	to Ms. 	LeGrand, 	the 	Department 	hired
eleven psychiatric 	technicians 	at 	Stockton 	in June 	of 	1983,
four 	in July 	and 	five 	in August. 	The 	only 	testimony 	regarding
overtime 	was 	that 	of Ms. 	Long 	who, 	when 	asked 	if 	her 	overtime
decreased, 	responded, 	"Yes, 	it 	has, 	dramatically."
With 	respect 	to 	increased 	duties, 	it 	is 	uncontested 	that
psychiatric 	technicians 	and 	other 	licensed 	employees 	have 	the
ultimate 	responsibility 	for 	all 	clients 	for 	whom 	hospital
workers 	care. 	Thus, 	a 	psychiatric 	technician who 	is 	assisted
by a 	hospital 	worker 	has 	ultimate 	responsibility 	not 	only 	for
his 	or 	her 	own 	clients 	but 	also 	for 	those 	under 	the 	hospital
worker. 	However, 	this 	arrangement 	for 	responsibility 	has
existed 	since 	hospital 	workers 	first 	began 	to 	assist
psychiatric 	technicians 	in 	the 	care 	of 	clients 	in 1976 	and
thereafter.
During 	the 	relevant 	period 	of 	December 	1, 	1979, 	through
July 	1, 	1983, 	the 	Department 	has 	consistently 	employed 	one
27

psychiatric 	technician 	for 	every 	two 	clients 	under 	its 	care.
The 	reasonable 	inference 	which 	can 	be drawn 	from 	this 	ratio 	is
that 	although 	there may 	be 	variations 	among 	hospital 	treatment
units, 	the 	caseload 	of 	psychiatric 	technicians 	has 	not 	changed.
No 	notice 	was 	given 	to CWA 	about 	the 	change 	in 	job
description of 	hospital 	worker 	nor 	about 	any 	planned 	changes 	in
the 	ratio 	of 	psychiatric 	technicians 	per 	hospital 	worker 	at 	any
state 	hospital. 	Mr. 	Frankland 	testified 	that 	he 	did 	not 	afford
the 	union 	any 	specific 	notice 	of 	either 	action 	because 	he 	did
not 	consider 	either 	to 	be 	a 	policy 	change.
LEGAL 	ISSUES
1. 	Did 	the 	state 	employer 	fail 	to meet 	and 	confer 	in 	good
faith 	and 	thereby 	violate 	Government Code 	section 	3519(c)
\
and/or 	(a) 	and 	(b) 	by 	unilaterally:
A. 	Initiating 	changes 	in 	the 	job 	specification 	for
the 	position of 	hospital 	worker?
B. 	Transferring 	work 	from 	state 	employee 	unit 	no. 	18
to 	state 	employee 	unit 	no. 	15?
C. 	Converting 	psychiatric 	technician 	positions 	at
Stockton State 	Hospital 	into 	hospital 	worker 	positions?
2. 	Alternatively, 	did 	the 	state 	employer 	fail 	to meet 	and
confer 	about 	the 	effects 	of 	the 	change 	in 	job 	specification,
transfer 	of 	work 	and 	conversion of 	positions 	and 	thereby
violate 	Government Code 	subsection 	3519(c) 	and/or 	(a) 	and 	(b)?
28

CONCLUSIONS 	OF LAW
Change 	in Job 	Specification.
CWA 	argues 	that 	under 	PERB 	precedent 	a 	change 	in 	job
description 	is 	a 	negotiable 	matter. 	Alum Rock 	Union Elementary
School District (6/27/83) 	PERB 	Decision No. 	322. 	Where 	an
employer 	makes 	such 	a 	change 	unilaterally, 	CWA 	reasons, 	the
employer 	has 	failed 	to 	negotiate 	in 	good 	faith.
Here, 	however, 	the 	job description 	at 	issue 	was 	that 	of
hospital 	worker, 	a 	position 	contained 	in 	state 	unit 	no. 	15
which 	is 	represented 	by 	CSEA, 	rather 	than CWA. 	Prior 	to 	the
change, 	CSEA 	was 	consulted 	and 	agreed 	to 	the 	revision 	of 	the
job 	specification. 	CWA 	represents 	state 	employee 	unit 	no. 	18,
which 	covers 	psychiatric 	technicians. 	Ordinarily, 	an 	employer
has 	no obligation 	to 	negotiate 	about matters 	affecting 	persons
outside 	the 	negotiating 	unit. 	"[I]t 	has 	repeatedly 	been 	held
that 	the 	scope 	of 	bargaining 	unit 	controls 	the 	extent 	of 	the
.
bargaining 	operation •••• " 	Chemical Workers. y. 	Pittsburgh
Plate 	Glass 	Co. 	(1971) 	404 	U.S. 	157 	[78 	LRRM 	2974, 	2977]. 	See
also, 	NLRB 	v. 	Western Electric Co. 	{8th Cir. 	1977) 	559 	F.2d
1131 	[95 	LRRM 	3230]. 	Thus, 	the 	state 	ordinarily 	would 	have 	no
obligation 	to 	negotiate 	with CWA 	about 	matters 	involving
hospital 	workers.
Nonetheless, 	CWA 	argues, 	the 	change 	in 	the 	hospital 	worker
job description 	led 	to changes 	in 	the 	work 	of 	psychiatric
technicians. 	Following 	the 	change 	in 	job description, 	CWA
29

argues, 	hospital 	workers 	routinely 	were 	assigned 	responsibility
for 	groups 	of 	employees. 	This 	change 	increased 	the 	job duties
of 	psychiatric 	technicians 	who 	became 	responsible 	for
supervising 	the 	hospital 	workers, 	according 	to CWA. 	In
addition, 	the 	union 	argues, 	the 	change 	decreased 	the 	amount 	of
overtime 	which 	psychiatric 	technicians 	could 	work 	and 	made
their 	jobs 	less 	safe. 	Changes 	which 	affect 	either 	the 	amount
of 	overtime 	or 	employee 	safety 	are 	mandatory 	subjects 	of
negotiations. 	State 	of 	California 	(Department 	of
Transportation) 	(~1/28/83) 	PERB 	Decision No. 	361-S. 	Because 	of
these 	effects 	upon 	the 	position 	of 	psychiatric 	technician, 	CWA
contends, 	the 	Department 	had 	an 	obligation 	to 	negotiate 	with
CWA prior 	to 	the 	revision 	of 	the 	hospital 	worker 	job
specification.
The 	State mounts 	a 	two-pronged 	response. 	As 	a 	threshold
argument, 	the 	State 	contends 	that 	the 	changes 	in 	job
description 	were 	made 	not 	by 	the 	Department 	but 	by 	the 	State
Personnel Board. 	The 	State 	argues 	that 	because 	the 	Personnel
Board 	was 	acting 	under 	its 	constitutional 	power 	to 	classify
(Cal. 	Constit. 	Art. 	VII, 	Sec. 	3), 	the 	Department 	and CWA 	could
not 	have 	reached 	a 	negotiated 	agreement 	contrary 	to 	the
Personnel Board's 	decision. 	The 	subject 	of 	the 	proposed 	change
in 	job description 	was 	thus 	outside 	of 	the 	scope 	of
representation 	and 	therefore 	nonnegotiable, 	the State 	concludes.
Alternatively, 	the 	State 	argues 	that 	the 	job description
change 	had 	no 	effect 	upon 	the 	duties 	of 	psychiatric 	technicians
30

and 	was 	therefore 	nonnegotiable 	in 	any 	event. 	The 	State
contends 	that 	the 	change 	merely 	updated 	the 	job 	specification
and 	brought 	it 	into 	conformity 	with 	current 	practice. 	In 	the
absence 	of 	a 	change 	in 	duties, 	the 	State 	argues, 	there 	is 	no
obligation 	to 	negotiate 	about 	the 	job description. 	CSEA 	joins
in 	this 	contention, 	arguing 	that 	the 	modification of 	the 	duties
of 	hospital 	workers 	had 	occurred 	sometime 	prior 	to 	the 	change
in 	job 	specification 	and 	considerably 	before CWA's
certification 	as 	exclusive 	representative.
The 	question of 	whether 	the 	Department 	had 	an 	obligation 	to
negotiate 	about Personnel Board 	ordered 	changes 	in 	job
description 	was 	resolved 	in 	the May 	5, 	1982, 	partial
dismissal. 	No 	exceptions 	were 	filed 	to 	the 	1982 	ruling 	and
that 	ruling 	is 	binding 	upon 	the 	parties 	and 	the 	undersigned
hearing 	officer. 	The 	evidence 	establishes 	that 	the 	change 	in
job specification was 	originated 	by 	the 	Personnel 	Board_and
that 	the 	modifications 	proposed 	by 	the 	Department were 	in
accord 	with 	changes 	already 	set 	out 	by 	the 	Personnel Board
staff. 	Thus, 	no 	violation can 	be 	found 	in 	the 	change 	of 	the
job description 	itself.
A more 	substantial 	question 	not 	resolved 	in 	the 	earlier
ruling 	is 	whether 	the 	Department made 	a 	change 	in 	the 	duties 	of
hospital 	workers 	which 	resulted 	in 	a 	change 	in 	the 	duties 	of
psychiatric 	technicians. 	A significant 	change 	in 	an 	employee's
actual 	job duties 	is 	a 	matter 	within 	the 	scope 	of
31

representation. 	Rio Hondo Community College 	District
(12/31/82) 	PERB 	Decision No. 	279, 	Mt. 	San Antonio Community
College 	District 	(3/24/83) 	PERB 	Decision No. 	297. 	Here, 	it 	is
clear 	that 	there 	has 	been 	a 	change 	in 	the 	duties 	of 	hospital
workers. 	The 	critical 	factor, 	however, 	is 	when 	the 	change
occurred.
It 	is 	fundamental 	to CWA's 	theory 	of 	the 	case 	that 	the
change 	in 	hospital 	worker 	duties, 	and 	the 	alleged 	effect 	upon
psychiatric 	technicians, 	took 	place 	following 	CWA's
certification 	as 	exclusive 	representative. 	An 	employer's 	duty
to 	negotiate 	with 	an 	organization does 	not 	arise 	until 	the
organization 	attains 	the 	status 	of 	exclusive 	representative.
In 	both 	its 	opening 	statement 	at 	the 	hearing 	and 	in 	its 	initial
post-hearing 	brief, 	CWA describes 	the 	change 	in 	duties 	as 	the
consequence 	of 	the 	change 	in 	job description. 	According 	to
CWA, 	the 	change 	in 	the 	job description 	"precipitated 	an 	actual
change 	in 	job duties."
The 	State 	does 	not 	fully 	concede 	that 	there 	has 	been 	a
change 	in 	the 	duties 	of 	hospital 	workers. 	However, 	the State
argues, 	even 	if 	a 	change 	did 	occur, 	it 	"pre-existed CWA's
certification 	as 	exclusive 	representative" 	and 	was 	"of
longstanding 	duration 	and 	practice." 	The 	weight 	of 	the
evidence 	supports 	the 	State's 	position. 	It 	is 	concluded 	that
the 	revision 	of 	the 	job 	specification 	merely 	reflected 	a
development 	that 	already 	had 	occurred.
32

When 	the 	hospital 	worker 	position 	originally was 	created 	in
1968, 	persons 	employed 	in 	that 	class 	were 	engaged 	primarily 	in
janitorial 	and 	housekeeping 	duties. 	While 	hospital 	workers 	of
that 	era 	performed 	some 	client 	care 	duties, 	the 	primary 	focus
of 	their 	position was 	on 	housekeeping. 	By 1976, 	however,
hospital 	workers 	were 	engaged 	in 	the 	dressing, 	feeding,
grooming, 	escorting 	and 	toileting 	of 	patients. 	The 	shift
toward 	patient 	care 	accelerated 	in 	1978 when 	the 	Department
employed 	janitors, 	housekeepers 	and 	food 	service 	workers 	to
assume many 	of 	the 	duties 	formerly 	performed 	by 	hospital
workers.
By 1978, 	hospital 	workers 	were 	engaged 	in 	client 	care 	with
such 	frequency 	that 	employee 	organizations 	representing
hospital 	workers 	commenced 	the 	filing 	of 	complaints 	that 	their
members 	were 	working 	out 	of 	class. 	The 	gist 	of 	those
complaints 	and 	others 	filed 	in 1980, 	was 	that 	hospital 	workers
were 	engaged 	in 	such 	psychiatric 	technician 	duties 	as 	leading
groups 	of 	clients. 	Some 	of 	those 	out-of-class 	claims 	were
sustained 	and 	the 	Department 	commenced 	a 	series 	of 	measures
designed 	to 	stop hospital 	administrators 	from 	assigning
out-of-class 	duties 	to 	hospital 	workers. 	As 	CSEA 	correctly
argues, 	evidence 	that 	hospital 	workers 	occasionally 	are 	still
employed 	as 	group 	leaders 	"does 	not 	reflect 	a 	change 	in 	policy
but 	rather 	a 	violation 	of 	that 	policy."
Disputes 	about 	hospital 	workers 	performing 	the 	duties 	of
psychiatric 	technicians 	would 	not 	have 	occurred 	in 	1978 	and
33

1980 	had 	not 	the 	nature 	of 	hospital 	worker 	duties 	already
shifted 	toward 	client 	care. 	The 	occasion 	for 	hospital 	workers
to perform psychiatric 	technician-type 	duties 	simply would 	not
have 	arisen 	if 	hospital 	workers 	were 	still 	limited 	primarily 	to
housekeeping 	duties.
It 	is 	thus 	apparent 	that 	hospital 	worker 	duties 	had 	changed
long 	before 	the 	December 	16, 	1981, 	revision 	in 	job
specification. 	The 	process 	was 	under 	way 	by 1976 	and 	was
virtually complete 	by 1980. 	Contrary 	to CWA's 	argument, 	the
change 	in 	job description 	did 	not 	precipitate 	"an 	actual 	change
in 	job duties." 	The 	change 	already 	had 	been made.
Similarly, 	insofar 	as 	the 	gradual 	change 	in 	hospital 	worker
duties 	affected 	the 	duties 	of 	psychiatric 	technicians, 	it 	is
self-evident 	that 	any 	effect 	on 	psychiatric 	technicians 	would
have 	occurred 	simultaneously 	with 	the 	hospital 	worker 	changes.
Since 	the 	change 	in 	hospital 	worker 	duties 	was 	virtually
complete 	by 	1980, 	it 	is 	inherent 	that 	the 	effect on 	psychiatric
technicians 	likewise 	was 	complete 	by 	1980.
Moreover, 	the 	specific 	evidence 	that 	the 	change 	in 	the
hospital 	worker 	job description 	affected 	psychiatric
technicians 	was 	unconvincing. 	As 	CSEA 	argues 	in 	its 	brief,
"the 	impact 	of 	the 	various 	alleged 	changes 	must 	be
demonstrated." 	CWA 	has 	failed 	to meet 	this 	burden 	of 	proof.
Several 	witnesses 	testified 	that 	their 	jobs 	became 	less
safe 	because 	of 	the 	changing 	nature 	of 	hospital 	worker 	duties.
34

During 	cross-examination, 	however, 	it 	became 	apparent 	that 	any
safety problems 	were 	not 	due 	to 	the 	changing 	nature 	of 	hospital
worker 	duties 	but 	to 	the 	inexperience 	of 	some 	hospital
workers. 	The 	evidence 	establishes 	that 	regardless 	of 	job
classification, 	a 	new 	employee 	is 	less 	able 	to 	anticipate 	and
deal 	with 	violent 	behavior 	by 	clients. 	New 	hospital 	workers
are 	given 	the 	same 	instruction 	as 	new 	psychiatric 	technicians
for 	dealing 	with 	assaultive 	behavior 	of 	clients. 	After 	that,
the 	principal 	teacher 	for 	both 	groups 	is 	experience.
Also 	unconvincing 	was 	the 	testimony 	of 	one 	witness 	that 	a
change 	in 	hospital 	worker 	duties 	had 	brought 	about 	a 	reduction
in 	the 	amount 	of 	available 	overtime. 	As 	the 	State 	argues, 	"no
causal 	relationship 	was 	established" 	between 	the 	change 	in
duties 	and 	the 	loss 	of 	overtime. 	There 	could 	be 	a 	myriad 	of
explanations 	for 	why 	an 	individual 	employee 	might 	work 	fewer
hours 	of 	overtime 	from 	one 	year 	to 	another. 	Employers
typically 	authorize 	overtime 	when 	there 	is 	an 	increase 	in 	the
workload 	or 	a 	decrease\ in 	the 	number 	of 	available 	workers. 	The
witness 	might 	have 	lost 	her 	overtime 	because 	of 	changes 	in
either 	the 	amount 	of 	available 	work 	or 	the 	number 	of 	available
workers. 	In 	any 	event, 	it 	is 	too 	speculative 	to 	link 	the 	loss
of 	overtime 	to 	a 	change 	in 	the 	duties 	of 	hospital 	workers.
Nor 	was 	any 	convincing 	evidence 	presented 	that 	the 	job
description 	change 	has 	required 	psychiatric 	technicians 	to
supervise 	hospital 	workers. 	The 	supervision 	responsibility
35

which 	psychiatric 	technicians 	carry 	is 	for 	clients, 	not 	for
hospital 	workers. 	Psychiatric 	technicians 	maintain 	this
responsibility 	whether 	or 	not 	they 	have 	a 	hospital 	worker 	to
assist 	them 	in client 	care. 	There 	is 	no 	evidence 	that 	the 	use
of 	hospital 	workers 	has 	increased 	the 	number 	of 	clients 	for
whom 	hospital 	workers 	must 	care. 	Indeed, 	the 	record
establishes 	the ·opposite. 	Consistently 	since 	December 	1, 	1979,
the 	Department 	has 	employed 	one 	psychiatric 	technician 	for
every 	two clients 	under 	its 	care.
An 	employer 	has 	no 	obligation 	to 	negotiate 	about 	a 	change
in 	a 	job 	specification which 	does 	not 	change 	any 	condition 	of
employment. 	Alum Rock 	School 	District_, 	supra, 	PERB 	Decision
No. 	322. 	Accordingly, 	the 	contention 	that 	the 	change 	in 	job
specification 	violated 	subsection 	3519(c) 	and, 	concurrently 	(a)
and 	(b) 	must 	be 	dismissed.
Transfer 	of 	Unit Work.
CWA 	argues 	that 	the 	Department 	transferred 	work 	from
unit 	18 	to 	unit 	15 when 	it 	permitted 	hospital 	workers 	to
undertake 	client 	care 	duties 	formerly 	performed 	by 	psychiatric
technicians. 	Citing 	Rialto Unified 	School 	District 	(4/30/82)
PERB Decision No. 	209, 	CWA 	argues 	that 	the 	transfer 	of 	work
from 	a 	bargaining 	unit 	is 	a 	negotiable 	subject. 	Because 	the
Department 	did 	not 	negotiate 	about 	the 	transfer, 	it 	failed 	to
negotiate 	in 	good 	faith, 	the 	union 	concludes.
In making 	this 	argument, 	however, 	CWA once 	again 	is
confronted 	by 	the 	problem 	of 	when 	the 	alleged 	change 	in duties
36

took 	place. 	It 	is 	without 	challenge 	that 	hospital 	workers 	over
the 	years 	have 	gradually 	assumed 	some 	of 	the 	client 	care 	duties
which 	once 	were 	performed 	almost exclusively 	by 	licensed
employees. 	However, 	the 	preponderance 	of 	the 	evidence
establishes 	that 	the 	duties 	now conducted 	by 	hospital 	workers
are 	substantially 	the 	same 	as 	those 	regularly 	carried 	out 	by
hospital 	workers 	in 1980. 	The 	change 	in 	duties 	thus 	predates
CWA's 	certification 	as 	the 	exclusive 	representative 	in 1981.
Accordingly, 	it 	is 	concluded 	that 	during 	the 	period 	since
the 	certification of 	CWA, 	the 	Department 	has 	not 	transferred
work 	from 	unit 	18 	to 	unit 	15.
Conversion 	of 	Positions 	at Stockton.
It 	is 	undisputed, 	CWA 	argues, 	that 	when CWA was 	certified
as 	exclusive 	representative 	there 	were 	no 	hospital 	workers
employed 	at Stockton State 	Hospital. 	In 	the 	summer 	of 	1982,
CWA continues, 	the 	hospital 	began 	to 	implement 	a 	decision 	to
replace 	some 	psychiatric 	technicians 	with 	hospital 	workers 	as 	a
cost 	reduction measure. 	CWA 	argues 	that 	the 	replacement 	of
psychiatric 	technicians 	with 	hospital 	workers 	was 	a 	policy
change, 	citing 	Grant Joint 	Union High 	School 	District 	(2/26/82)
PERB 	Decision No. 	196, 	which 	was made 	without 	prior
negotiations. 	The 	hiring 	of 	hospital 	workers 	at 	Stockton,
therefore, 	was 	a 	failure 	to 	negotiate 	in 	good 	faith.
In making 	this 	argument, 	CWA 	in 	effect 	contends 	that
regardless 	of 	when 	any 	other 	changes 	were made, 	it 	is
37

absolutely 	certain 	that 	at 	a 	date 	after 	CWA's 	certification
psychiatric 	technicians 	were 	replaced 	by 	hospital 	workers 	at
Stockton. 	The 	action was 	taken 	as 	a 	result 	of 	an
administrative 	decision 	to cut 	costs 	and 	at 	no 	time, 	CWA
argues, 	did 	the 	Department 	inform 	the 	union 	of 	the 	change 	or
offer 	to 	negotiate.
The 	PERB 	has 	yet 	to 	consider 	the 	transfer 	of 	work 	in 	a 	case
where 	jobs 	which 	share 	overlapping 	duties 	are 	located 	in
different 	units.9 	The 	rationale 	of 	Rialto, 	supra, 	PERB
Decision No. 	209, 	and 	other 	PERB 	cases 	is 	rooted 	in 	the
transfer 	of 	duties, 	not 	positions, 	from 	the 	unit. 	Here, 	there
is 	no convincing 	evidence 	that 	duties 	which 	are 	exclusively
those 	of 	psychiatric 	technicians 	have 	been 	transferred 	to
hospital 	workers 	at 	any 	time 	since CWA's 	certification. 	As
both 	the 	State 	and CSEA 	argue, 	there 	is 	a 	wide 	overlap of
duties 	between 	the 	two 	job classifications. 	The 	record 	simply
9Rialto, 	supra, 	PERB 	Decision No. 	209, 	involved 	the
transfer 	of 	attendance 	counselor 	duties 	from 	certificated
employees 	to 	classified 	employees. 	Classified 	employees 	had
not 	formerly 	performed 	such 	work. 	In CSEA 	v. 	Solano Community
College 	District 	(6/30/82) 	PERB 	Decision No. 	219, 	the 	transfer
of 	duties 	went 	the 	other 	way. 	Following 	the 	layoff 	of 	certain
classified 	employees, 	their 	former 	duties 	were 	assigned 	to
certificated 	employees 	who 	previously 	had 	not 	performed 	such
work. 	In Mt. 	San Antonio,, supra, 	.PERB 	Decision No. 	297,
administrators 	who 	were 	not 	members 	of 	the 	bargaining 	unit 	were
directed 	to 	teach 	certain 	overload 	assignments. 	Teaching
previously was 	not 	a 	part 	of 	an 	administrator's 	regular 	duties
and 	administrators 	who 	did 	teach 	overload 	classes 	did 	so only
after 	full-time 	faculty 	had 	been 	given 	and 	rejected 	the
opportunity 	to 	teach 	the 	overload 	classes.
38

will 	not 	support 	the 	conclusion 	that 	the 	duties 	of 	hospital
workers 	have 	changed 	since 	certification.
The 	events 	at Stockton 	actually 	present 	the 	different
question 	of 	whether 	a 	change 	in 	the 	allocation 	of 	positions 	is
a 	negotiable 	matter. 	At 	the 	time 	CWA was 	certified, 	there 	were
329.5 	psychiatric 	technicians 	and 	no 	hospital 	workers 	at
Stockton State Hospital. 	By July 	1, 	1983, 	the 	hospital 	had 	314
psychiatric 	technicians 	and 	27 	hospital 	workers. 	Clearly,
there 	was a 	change 	in 	the 	allocation 	of 	positions.
The 	State 	is 	obligated 	to 	negotiate 	about 	the 	change 	in 	the
allocation 	of 	positions 	if 	it 	affects 	a 	matter 	within 	the 	scope
of 	representation.10 	Under 	section 	3516, 	the 	State 	is
obliged 	to 	negotiate 	with 	an 	exclusive 	representative 	about
10The SEERA 	scope 	of 	representation 	prov1s1on, 	which 	is
found 	at 	section 	3516, 	read 	as 	follows 	at 	the 	time 	this 	case
arose:
The 	scope 	of 	representation 	shall 	be 	limited
to 	wages, 	hours, 	and 	other 	terms 	and
conditions 	of 	employment, 	except, 	however,
that 	the 	scope 	of 	representation 	shall 	not
include 	consideration of 	the 	merits,
necessity, 	or 	organization 	of 	any 	service 	or
activity 	provided 	by 	law or 	executive 	order.
This 	section 	has 	been 	amended, 	effective July 	21, 	1983, 	to
provide 	as 	follows:
The 	scope 	of 	representation 	shall 	be 	limited
to wages, 	hours, 	and 	other 	terms 	and
conditions 	of 	employment, 	except, 	however,
that 	the 	scope 	of 	representation 	shall 	not
include 	either 	of 	the 	following:
(a) 	Consideration of 	the 	merits, 	necessity,
39

"wages, 	hours 	and 	other 	terms 	and 	conditions 	of 	employment,"
except 	there 	is 	no 	obligation 	to 	negotiate 	about 	"consideration
of 	the 	merits, 	necessity 	or 	organization 	of 	any 	service or
activity 	provided 	by 	law or 	executive 	order."
or 	organization of 	any 	service 	or 	activity
provided 	by 	law or 	executive 	order.
(b) 	The 	amount 	of 	rental 	rates 	for
state-owned 	housing 	charged 	to 	state
employees.
A term and 	condition 	of 	employment 	will 	be 	found 	within 	the
scope 	of 	representation 	if 	it 	involves 	the 	employment
relationship, 	is 	of 	such 	concern 	to 	both management 	and
employees 	that 	conflict 	is 	likely 	to 	occur, 	and 	if 	the
mediatory 	influence 	of 	collective 	bargaining 	is 	an 	appropriate
means 	of 	resolving 	the 	conflict. 	Such 	a 	subject 	is mandatorily
negotiable 	unless 	requiring 	negotiations 	would 	unduly 	abridge
the 	State 	employer's 	freedom 	to 	exercise 	those 	managerial
prerogatives 	(including 	matters 	of 	fundamental 	policy)
essential 	to 	the 	achievement 	of 	the 	State's 	mission. 	State of
California 	{Department 	of 	Transportation), 	supra, 	PERB Decision
No. 	361-S.
There 	is 	no 	showing 	that 	the 	redistribution of 	job
classifications 	at Stockton 	had 	any 	effect 	on 	the 	wages 	or
hours 	of 	unit members.11 	CWA's 	contention 	that 	the 	change
llone 	former 	psychiatric 	technician 	testified 	that 	she
was 	unable 	to obtain 	reemployment 	in Stockton 	subsequent 	to 	the
redistribution 	of 	positions. 	Even 	assuming 	a 	change 	in
40

affected 	employee 	workload 	and 	safety 	is 	found 	unpersuasive 	for
the 	reasons 	discussed 	supra.
reemployment 	rights 	is 	negotiable 	under 	Jefferson Elementary
School District 	(6/19/80) 	PERB 	Decision No. 	133, 	CWA 	has 	not
offered 	convincing 	evidence 	of 	a 	change. 	In 	the 	same month 	the
witness 	was 	rejected, 	four 	psychiatric 	technicians 	were 	hired
at 	Stockton. 	Five 	more 	were 	hired 	the 	following 	month. 	It 	is
unreasonable, 	therefore, 	to 	attribute 	the 	failure 	of 	the
witness 	to 	obtain 	reemployment 	to 	the 	redistribution 	of 	job
classifications 	at 	the 	hospital.
More 	significant 	is 	the CWA contention 	that 	as 	a 	result 	of
job 	redistribution, 	the 	organization's 	"strength 	and 	vitality"
will 	be 	progessively diminished 	at 	Stockton. 	It 	is 	well
established 	that 	an 	employer 	must 	negotiate 	about 	changes 	that
affect 	"the 	collective 	strength 	of 	employees 	in 	the 	unit 	and
their 	ability 	to 	deal 	effectively 	with 	the 	employer 	and 	•••
the 	viability of 	the 	unit 	itself." 	Rialto 	Unified 	School
District, 	supra, 	PERB 	Decision No. 	209. 	Citing 	federal
precedent 	with 	approval, 	the 	Board 	concluded 	in 	Rialto 	that 	a
weakening of 	the 	collective 	strength 	of 	a 	unit 	impacts 	upon
work 	conditions 	and 	thus 	is 	logically 	and 	reasonably 	related 	to
enumerated 	subjects 	within 	scope.
The 	replacment 	of 	psychiatric 	technicians 	by 	hospital
workers 	clearly presents 	the 	potential 	for 	an 	adverse 	impact
upon 	the 	collective 	strength 	of 	employees 	in 	the 	unit. 	The
distribution of 	the 	workforce 	is 	a 	matter 	of 	significant
concern 	to management 	and 	a 	subject 	over 	which 	conflict 	easily
could 	arise 	if 	not 	resolved 	by 	negotiations. 	In order 	to
41

contest 	the 	unilateral 	change, 	however, 	CWA must 	demonstrate
that 	the 	extent 	of 	the 	redistribution of 	the 	workforce 	was 	of
sufficient 	scope 	to 	have 	a 	significant 	impact 	on 	the 	unit.
Small 	fluctuations 	are 	inevitable 	and 	the 	State 	would 	be 	unduly
handicapped 	if 	it 	had 	to maintain 	the 	relationship 	between 	the
two 	job classes 	with 	mathematical 	precision. 	However, 	a
significant 	shift 	in workforce 	would 	have 	an obvious 	impact
upon 	the 	collective 	strength 	of 	the 	unit 	and 	thus 	be
negotiable. 	Here, 	CWA 	simply 	has 	failed 	to 	show a 	significant
shift 	in 	the 	distribution of 	jobs 	in 	the 	Departmental
workforce. 	Considering 	the 	system 	as 	a 	whole, 	there 	were more
psychiatric 	technicians 	per 	hospital 	worker 	in July of 	1983 	(11
to 	1) 	than 	there 	were 	at 	the 	time CWA was 	certified 	in 	the 	fall
of 	1981 	(10 	to 	1).
Moreover, 	as 	the 	State 	notes 	in 	its 	brief, 	the 	Department
for 	some 	time 	has 	attempted 	to 	ensure 	that 	between 	70 	and
90 	percent 	of 	the 	treatment 	staff 	at 	each 	hospital 	is 	comprised
of 	licensed 	persons. 	Stockton 	has 	been 	notable 	for 	its
deviation 	toward 	a 	higher 	percentage 	of 	licensed 	staff members
whereas 	other 	state 	hospitals, 	particularly 	Fairview, 	have 	been
notable 	for 	a 	deviation 	toward 	a 	lower 	percentage 	of 	licensed
workers. 	During 	the 	period 	after 	CWA's 	certification,
successful 	efforts 	were made 	to 	bring 	both 	hospitals 	more
closely 	into 	the 	desired 	range. 	Although 	the 	number 	of
psychiatric 	technicians 	declined 	relative 	to 	hospital 	workers
at Stockton, 	it 	increased 	at 	Fairview.
42

Thus, 	although 	the 	percentage 	of 	the 	treatment 	staff
comprised of 	psychiatric 	technicians 	has 	declined 	at 	Stockton
since CWA's 	certification, 	the 	change merely 	brought 	the
hospital 	into 	line 	with 	systemwide 	practices. 	It 	cannot 	be
described 	as 	a 	policy 	change, 	Grant High 	School District,
supra, 	PERB 	Decision No. 	196. 	Similarly, 	the 	evidence 	cannot
support 	a 	conclusion 	that 	the 	action 	at 	Stockton 	had 	an 	impact
upon 	"the 	collective 	strength 	of 	employees 	in 	the 	unit" 	or 	upon
the 	"viability of 	the 	unit 	itself."
In 	the 	absence 	of 	evidence 	that 	the 	redistribution of
positions 	was 	a 	policy 	change 	affecting 	a 	matter 	within 	the
scope 	of 	representation, 	the 	charge 	that 	the 	Department 	failed
to 	negotiate 	in 	good 	faith 	by 	its 	action 	at 	Stockton 	cannot 	be
sustained.
Failure 	to Meet About Effects.
As 	its 	final 	line 	of 	attack, 	CWA 	contends 	that 	even 	if 	it
is 	held 	that 	the 	Department 	was 	under 	no 	obligation 	to
negotiate 	about 	the 	decisions 	at 	issue, 	it 	nonetheless 	was
obligated 	to 	negotiate 	about 	the 	effects 	of 	those 	decisions
upon 	unit members.
Numerous 	PERB 	decisions 	support 	the 	principle 	that 	the
effects 	of 	a 	nonnegotiable 	decision 	upon matters 	within 	the
scope 	of 	representation 	are 	themselves 	negotiable. 	See, 	e.g.,
Solano Community College 	District, 	supra, 	PERB 	Decision No. 	219
and 	Oakland 	Unified 	School 	District ,(7/11/83) 	PERB 	Decision
No. 	326.
43

Here, 	however, 	CWA 	has 	failed 	to 	demonstrate 	that 	any
action 	taken 	by 	the 	Department 	during 	the 	period 	following 	the
certification of CWA 	had 	an 	effect 	upon 	a 	matter 	within 	the
scope 	of 	representation. 	In 	the 	absence 	of 	such 	a 	showing, 	the
employer 	had 	no 	obligation 	to 	negotiate. 	Accordingly, 	the
contention 	that 	the 	Department 	failed 	to 	negotiate 	about 	the
negotiable 	effects 	of 	nonnegotiable 	decisions must 	be 	dismissed.
PROPOSED ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and 	the 	entire 	record 	in 	this 	matter, 	unfair 	practice
charge S-CE-86-S 	filed 	by 	the 	Communications 	Workers 	of
America, 	Psych 	Tech 	Union, 	Local 	11555, 	AFL-CIO, 	against 	the
State 	of 	California 	(Department 	of 	Developmental Services) 	and
the 	companion PERB 	complaint 	are 	hereby 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on January 	3, 	1984, 	unless 	a 	party 	files 	a 	timely
statement of 	exceptions. 	In 	accordance 	with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify 	by 	page 	citation or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See 	California Administrative Code, 	title 	8,
part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on
44

45
January 	3, 	1984, 	or 	sent 	by 	telegraph 	or 	certified 	United
States 	mail, 	postmarked 	not 	later 	than 	the 	last 	day 	for 	filing
in order 	to 	be 	timely 	filed. 	See 	California Administrative
Code, 	title 	8, 	part 	III, 	section 	32135. 	Any 	statement 	of
exceptions 	and 	supporting 	brief must 	be 	served 	concurrently
with 	its 	filing 	upon 	each 	party 	to 	this 	proceeding. 	Proof 	of
service 	shall 	be 	filed 	with 	the 	Board 	itself. 	See 	California
Administrative 	Code, 	title 	8, 	part 	III, 	section 	32300 	and 	32305.
Dated: 	December 	13, 	1983 	~E &<~£Ronald E. 	Blubaugh
Hearing 	Officer
45