Fullerton Union High School District (PERB 0053E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

FULLERTON UNION HIGH SCHOOL DISTRICT )
PERSONNEL AND GUIDANCE ASSOCIATION, »)
) Unfair Practice
Charging Party, ) Case No. LA-CE-28
)
v- PERB Decision No. 53
FULLERTON UNION HIGH SCHOOL DISTRICT, ;
8
Respondent. 5/30/7

Appearances: Thomas C. Agin, Director, California Pupil Services Labor
Relations, for Fullerton Union High School District Personnel and Guidance

Association; Lee T. Paterson (Paterson & Taggart) for Fullerton Union High
School District.

Before Gluck, Chairman; Gonzales and Cossack Twohey, Members.

OPINION

This is the Board's second decision in this case. The first decision,

Fullerton Union High School District (7/27/77), EERB Decision No. 20,

remanded the case to the hearing officer for the taking of additional evidence
on the issue of whether the Fullerton Union High School District unlawfully
failed to meet and negotiate with the Fullerton Union High School District
Personnel and Guidance Association on the subjects of coumselor and psychologist
case loads. The case was remanded because the stipulated record originally
submitted to the Board by the parties had no evidence regarding the nature of
the work performed by counselors and psychologists, and presented no facts
showing what, if any, relationship exists between coumselor and psychologist
case loads and the matters specifically enumerated as within the scope of

representation in Government Code section 3543.2. The hearing officer was

instructed not to render another proposed decision and the tra..~script was
returned directly to the Board itself.
FACTS
The issue framed by the parties in their briefs was whether the District
unlawfully failed to meet and negotiate on the subjects of counselor and
psychologist case loads. 	The District admitted by stipulation that 	it had
refused to negotiate on these subjects on the ground that case loads are
outside the scope of representation defined in C,overrur:ent Code section 3543.2. 1
The record on remand nnre specifically discloses 	that the actual written
proposal presented by the Association was:
In regards to working conditions, we are concerned
about the following areas:
1. 	Improved ratio between counselors and students
and between psychologists and students.
This written proposal was 	subsequently supplemented by oral proposals by the
Association. 	The first recorrrnended that the past practice of a 1 to 400
counselor to student average daily attendance ratio be continued. 	The second
asserted that the Association would like a counselor to student average daily
attendance ratio of 1 to 250. 	The third proposed an 18 or 19 percent salary
increase for what the colfilselors called an "increased workload."
1Gov. 	Code sec. 	3543.2 provides:
The scope of representation shall be limited to matters relating to
wages, 	hours of employment, 	and other terms and conditions of
employment. 	"Terms and conditions of employment" mean health and
welfare benefits as defined by Section 53200, 	leave, 	transfer and reassignment
policies, 	safety conditions of employment, 	class size, 	procedures to be
used for the evaluation of employees, 	organizational security pursuant
to Section 3546, 	and procedures for processing grievances pursuant
to Sections 3548.5, 	3548.6, 	3548.7, 	and 3548.8, 	and the layoff of
probationary certificated school district errployees, 	pursuant to
Section 44959.5 of the Education Code .... 	All matters not specifically
enumerated are reserved to the public school employer and ma.y not be
a subject of meeting and negotiating ....
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The "increased w"Orkload" allegedly resulted from the District's
April 1976 action reducing from 37 to 26 the nunber of counselors and
psychologists serving the District's eight high schools and one continuation
school. 	The average daily attendance has increased after the reduction
so the remaining 26 professionals presently do the work formerly done by
the 37.
Counselors perfonn both guidance functions and personal counseling
ftm.ctions. 	Guidance functions involve giving infoTITiation on programs related
to college, 	financial aid, 	careers, 	employment and work experience programs.
Personal counseling functions 	include social, 	disciplinary and school
attendance counseling.
A counselor testified that a counselor's "case" is represented by a
single student or group of students. 	The tenn is not defined by written
District policy. 	One or a nunber of sessions may be required to process a
case involving either guidance or personal counseling functions. 	There is
no standard as 	to how much time a counselor must deal with a student. 	The
co1.mselor makes 	that determination. 	The counselor may work only with the
student, 	or additionally with the student's family, 	probation officer, 	doctor
or other referring persons, 	teachers or administrators and social agencies.
The District's witness, 	the assistant superintendent for personnel
services, 	testified that cotm.selors are not assigned "cases." 	The witness
stated that in 1976 the District's board of trustees detennined how many
dollars 	it w"Ould spend on counseling services, 	determined how many counselors
the dollars would pay and then apportioned the cotm.selors , or rrore
specifically, 	cotm.selor hours, 	to each school based on the average daily
attendance at each school. 	In the past, 	the District has accepted a 1 to 400
counselor to student average daily attendance ratio. 	Once cotm.selors 	are assifned
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to 	the schools, 	it is 	the responsibility of the principal at each school
to assign their work according to the needs of the particular school.
The counselors work with the principal to discover the needs of the
students at the particular school and to set up the guidance program each
year. 	There are certain basic things which must be done each year such as
scheduling students, 	testing and the career center, but other programs are
additional such as leading a peer counseling group or working with parents
in an evening program.
There is an established work week of seven and one-half hours per day.
However, 	since the reduction in the number of counselors and psychologists
in April 1976, 	a counselor witness 	testified that her duties have required
her to work longer than seven and one-half hours a day. 	For instance, 	the
witness does not take coffee breaks and works with students during her lunch
hour. 	The District office has never stated that the counselors are required
to work additional hours, 	nor has 	it told the counselors not to take coffee
or lunch breaks, 	but it has not reduced their assigned responsibilities and
the average daily attendance has increased. 	Absent a statement from the
District that their duties and responsibilities would be reduced, 	the counselor
stated the counselors probably have reduced the personal counseling somewhat
in addition to increasing hours, 	rather than give up the guidance functions
necessary for 	the school to maintain a srrooth working schedule.
The two main types of students with whom the psychologists deal are thrn:;p
directed for placement in educationally disadvantaged programs or handicapped
student programs. 	The psychologists' 	primary responsibility is 	to screen
students for these special education pro8raDS on referrals from counselors ~nrl
other-people who have students 	they wish to have considered for a special help
situation. 	This involves a good deal of contact with parents, 	special
education teachers and other people relevant to the situation, 	as well as 	the
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student. 	A psychologist witness stated the psychologists are pressured by
the District to keep the special education programs filled or else the
programs will be disbanded and psychological services reduced since
psychologists' 	sal.;3.ries come from special education :flmds.
Presently there are employed the equivalent of four and three-fifths
psychologists while before April 1976 there were five and three-fifths.
Psychologists are assigned to particular schools. 	Now the fewer psychologists
service the sam2 nurnber of schools previously serviced when the additional
psychologist was employed. 	'Il1e District has not given them any instructions
regarding the number of students they are to process. 	when the psychologists
are assigned to a campus, 	the students at that particular campus needing
special education services are referred to them. 	'Il1e psychologists must meet
these needs plus whatever additional requirerrents an individual campus ma.y
have for non-special educational services. 	For instance, 	some schools are
interested in having psychologists counsel groups of students who have attendance
or behavior problems, 	or do in-service work with teachers. 	At the 	ti.m2 of
the reduction in psychologists, 	they were asked by the District to focus
pri.m3.rily on special education because they could not be expected to do as
many non-special education activities as 	in the past. 	However, 	the actual
demands from the individual campuses have varied and some have continued to
ffi:3.k.e the demands ID:3.de in previous years for non-special education activities.
Since the reduction in personnel, 	the psychologist testifying has
felt under increasing demands 	to provide services for students and to meet
these demands she has worked later in the afternoon and taken fewer breaks.
Psychologists are not assigned to schools on an average daily attendance
basis. 	Some schools have rrore special education programs than others and
each program requires a different quantity of psychological services. 	'Il1e
District board of trustees decides how mu.ch time will be allotted to
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psychological services and assigns the tirrE to the various campuses based
upon the recomnendation of the person in charge of psychological services .
The evidence showed that the District discussed the .Association's
proposal to some extent in negotiations. 	The District stated it did not
consider counselor to student average daily attendance ratio to be
important because it assigned the counselors to perfonn certain functions
at a school rather than work ·with a certain nurrber of students. 	The District
also stated that if the counselor to pupil average daily attendance ratio
increased case load, 	then the counselors should still work only seven and
one-half hours and meet with their school administration to set priorities
on counseling functions so they would only perfonn the rrost vital functions
and ignore the ones 	they did not have tirne for.
The District's witness, 	the assistant superintendent for personnel
services, 	repeated this position at the hearing. 	He testified that if the
nurrber of counselors is reduced and they continue to do the same thing, 	the
case load would obviously increase. 	But t..ri.e District's position is 	t..1-iat they
perform functions and each school principal should make a determination,
a long with the counselors, 	of what functions 	should be perfoTIIEd and what
functions should be dropped. 	Thus, 	in the surrner of 1976 when the number
of counselors and psychologists was reduced, 	their case loads should not
have increased.
DISCUSSION
The facts obtained upon the remand of this case indicate the District
did discuss the proposals presented by the Association on the subjects of
cotm.selor and psychologist case loads. 	After discussion, 	the District
concluded the proposals were outside the scope of negotiations. 	The Board
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finds 	that t.J.us conclusion was erroneous and that the District therefore
failed to m2et and negotiate i.~ good faith with the Association on these
subjects.
The actual proposals concen1ed the counselor to student average
daily attendance ratio and incrP.ased salary for an increased ratio.
In their stipulated facts, 	the parties chose to characterize these proposals
as concerning counselors' 	and psychologists' 	case loads. 	These differences
are unimportant. 	The evidence shows 	that in April 1976, 	the number of
counselors and psychologists in the District was reduced from 37 to 26. 	The
student population serviced since that date has increased and the District
has not taken firm steps to reduce the arrount of fi.mctions 	the counselors
and psychologists must perfonn for that population. 	Since tt1e work to be
performed remains the same as previous to the reduction in personnel ,
logically the nunber of hours worked by the remaining employees must
:incre..ase or the quality of the work perforn:ed must decline. 	The record
reflects 	that bo 1
:h of these results have occurred. 	The fewer remaining
counselors and psycl1ologists are in fact working additional hours. 	Also,
the quality of their wurk has declined since their addicional hours 	do not
compensate for all of the hours 	lost 'when the ten counselors and one
psychologist were released in 1976. 	The remaining counselors and
psychologists spend less time on certain functions and on each case.
The District argues 	that the work day is fixed at seven and one-half
hours, 	and the counselors and psychologists should discuss with their
respective school principals 	tt1e fi.mctions which should be eliminated to
enable the.rn to complete their work wit..1-rin their work day. 	We need inquire
no further. 	This argunent in itself admits 	that the arrount of the
counselors' 	and psychologists' 	case load or functions perfonned for a give.~
student average daily attendance is related to hours. 	The proper place
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for such discussions 	is at the negotiations 	table, not in the principals'
offices. 	Negotiations on hours must include not only the stated length of
the_work day, 	but the ability of the employees to complete their assigned
work within the work day. 	Setting the hours of the work day is meaningless
if the work can never be performed within those hours. 2
The Board also finds 	these subjects are related to "class size." 	In
placing class size am:m.g the subjects included within the terms and conditions
of en:ployment, 	the Legislature mde a statutory decision on an issue that has
divided courts in 1'Il/3Il.Y states. 	Class size is 	the archetype of a subject that
includes aspects strongly involving both working conditions and educational
policy issues. 	Where statutes are not as explicit as 	the Educational
Employm:nt Relations Ace, 	some courts have decided that class size is so
related to policy issues 	that it should not be included in the scope of
negotiations.3 	Other courts have emphasized the relationship to workload
2California, 	federal and other state cases finding case load or workload
negotiable do not relate those subjects specifically to lthours," but only
to "wages, 	hours and other terms and conditions of employm:nt" generally.
Since the Educational Employmmt Relations Act delirrri.ts 	the phrase "and
other terms and conditions of employment, 11 those cases may not be
applicable precedent. 	Dublin Professional Fire Fi 	ters, 	Local 1885 v.
Valley Comnuni~
o Services Dist. 	1 75 	5 Cal.App.3d 	; Fire Fighters
Union v. 	City 	Vallejo 	(1974) 	12 Cal. 3d 608; 	Los Angeles Counr; Employees
Assn., 	Local 660 v. 	County of Los Angeles 	(1973) 	33 Cal.App.3d 	;
Galle~ Stores Co. 	v. 	NLRB (9th Cir. 	1968) 	402 F.2d 525, 	fn.4 	[69 LRRM
2024,~rcing 162 NLRB 498, 	64 LRRM 1045]; 	NLRB v. 	Bonham Cotton Mills, 	Inc.
(5th Cir. 	1961) 	289 F.2d 903 	[48 LRRM 2086, 	enforcing l21 NLRB 1235,
42 LRRM 1542]; 	Beacon Piece 	ein 	& Finishin 	Co., 	Inc. 	(1958) 	121 NLRB 953,
[42 LRRM 1489]; 	Boar 	of Education v. 	Englewood Teachers Assn. 	(1973 N. 	J.
Suprem: Ct.) 	85 LR.RM 2137; 	Boston Teachers Union v. 	School Corrmittee
(1976 Mass. 	Supreme Judicial Ct.) 	93 LRRM 2205.
3E.g., West Irondeouoit Teachers Assn. 	v. 	Helsby 	(1974) 	35 N.Y.2d 46
. [358 N.Y.S. 	720, 	315 N.E.2d 775, 	87 LRRM 2618]; 	City of Beloit v.
Wisconsin Ernoloyrn;nt Relations Board (1976) 	73 Wis.2d 76 	[242 ~.W.2d 231,
92 LRRM 3318].
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in deciding that class size is negotiable. 4 'Ihe Legislature undoubtedly knee,.;
of this controversy vm.en it decided to include class size armng foe negotiable
teTI!lS and conditions of employment.
The Board believes 	me Legislature did not intend to be so arbitrary as
to include class size within me scope of negotiations and exclude the
essentially identical concept of counselor and psychologist case loads. 	The
entire language of section 3543. 5 is 	focused on the concerns of teachers.
'lhis is primarily because Senate Bill 1605 was supported by teacher associations
for its 	teacher rre..rr:bers who constitute me vast majority of professional and
certificated educational employees. 	Because the focus of Senate Bill 160 was
on teachers, 	me Board believes that the Legislature did not intentionally
exclude the aln:Dst identical concerns of other professional, 	certificated
employees from the scope of negotiations. 	In the present case, 	case loads
are concerns of the counselors and psychologists alITDst identical to the
class size concerns of teachers.
Two aspects of class size nost often discussed L"'l cases deciding vm.ether
class size is negotiable show me similarities between class size for teachers
and case load for counselors and psychologists. 	These are workload and work
quality.
Since teachers are responsible for meir students' 	progress and rrust
evaluate each student, 	their ·workload increases as 	the number of students
for ·which they are responsible increases. 	Similarly, 	counselors rrust perform
4r:.g., West Hartford Education Assn. 	v. 	DeCourcv (1972) 	162 Conn. 	566
[295 A.2d 526, 	80 LRBM 2422); 	Clark Countv School District v. Local
Goverrunent Fmolovee-Managernent Relations Board (1974) 	90 Nev. 	442
[530 P.2d 114, 	88 LRR1'1 2774].
5senate Bill 160, 	Chapter 961 of the Statutes of 1975, was codified in
Governrr.ent Code section 3540 et seq. , wnich the Board refers 	to as 	t.1-ie
Educational S.'Tiplovcent Relations Act.
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certain functions 	for all students 	to whic..l-i they are assigned. 	All students
need guidance cotmSeling. 	1-lhile not all students need personal counseling,
as 	t.he number of students assigned by counselor to student average daily
attendance ratio or psychologist function increases, 	so will the number of
students needing such counseling. 	Clearly, 	the work required to be performed
by counselors increases as 	the nurnber of students for whom they are responsible
increases. 	Similarly, 	psychologists will inevitably get rrore referrals when
they are assigned by function to a larger pool of students.
Teachers conte..~d that as professional employees, 	t..hey are concerned not
only with the .annunt of work they perfonn but also with the quality of that
work. 	They argue 	that their teaching effectiveness suffers when class size
increases. 	Counselors and psychologists also are professional employees
concerned about their effectiveness. 	It seerrE clear that as 	these
employees becorr.e responsible for rrore and more students, 	the arrount of time
they have to spend on each student and, 	therefore, 	the quality of counseling
or evaluation must decrease. 	The record indicates 	t..hat as the counselor to
student average daily attendance ratio increased, 	counselors had to cut bac..~
on personal counseling and voluntarily increase hours.
The Board believes it would be illogical to find that counselor and
psychologist rr.ernbers of a certificated employees unit6 	cannot negotiate about
case load whic.h is an issue essentially identical to class size, 	an issue 	the
teacher members of the unit have a clear rig.l-tt to negotiate. 	Since the issues
involved in negotiating class size and case load are essentially identical,
the Board finds 	that counselor and psychologist case load is related to class
size.
6A1though in this case, 	counselors and psychologists are in a separate unit
pursuant to a consent agreement between i:he parties, 	the Board,'in Grossnnnt
Union High School District 	(3/9/77) EERB Decision No. 	11, 	decided that
counselors and psychologists can appropriately be included L~ a certificated
employee's unit.
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ORDER
It is hereby ordered t:hat the Fullerton Union High School District,
its board IIErrbers, 	superintendent and representat ives, 	shall cease and
desist from refusing to TIEet and negotiate in good faith with the Fullerton
Union High School District Persormel and Guidance Association on the
subjects of counselor and psychologist case loads.
/'fty: 	Ra~nd J. Gorr'ies , J'rber 	) I ; 	--···· -
Harry Gluck, 	Chairman
I
1Je/ilou Cossack Twohey, t1ember 	. (/
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EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of the
FULLERTON UNION HIGH SCHOOL DISTRICT
PERSONNEL AND GUIDANCE ASSOCIATION,
Charging Party,
vs.
FULLERTON UNION HIGH SCHOOL DISTRICT,
Respondent.
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Unfair Case No. 	LA-CE-28
____________________ )
Appearances: 	Thomas 	C. 	Agin, 	Director, 	California Pupil Services Labor
Relations, 	for Fullerton Union High 	School District 	Personnel and Guidance
Association.
Lee T. 	Paterson, 	Paterson & Taggart, 	for 	Fullerton Union High School District.
Before 	Franklin Silver, 	Hearing Officer.
STATEMENT OF THE CASE
On September 27, 	1976 the Fullerton Union High School District 	Personnel
and Guidance Association 	(hereafter "Association" or "charging party") 	filed 	an
unfair practice charge against 	the Fullerton Union High School District 	(hereafter
"District" or "respondent") 	alleging a 	refusal 	to meet and negotiate 	in 	good faith
in that 	the District 	unilaterally determined 	the location of negotiating sessions
and refused to negotiate counselor and psychologist 	caseloads. 	On October 11, 	1976
the District 	filed 	an answer 	denying that 	it had 	committed an unfair practice and
a motion 	to dismiss 	the charge on the grounds 	that 	it had not been alleged 	that
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. 	. 	d 1/	an impasse existe 	.- 	An informal conference was 	conducted on November 16, 	1976,
but no 	resolution of the matter was reached and the case was 	set 	for hearing. 	The
parties 	subsequently submitted a 	stipulation of facts 	to be considered in lieu of
a hearing, 	and 	this decision is based upon the stipulated facts 	and briefs submitted
by the parties.
SUMMARY OF STIPULATED FACTS
The District is 	located in Orange County. 	It has 	an average daily
attendance of approximately 15,000, 	with seven high schools and one continuation
school. 	The District has 1,175 employees, 	670 of whom are certificated personnel,
7 of whom are psychologists, 	and 29 	of whom are counselors. 	The Association was
recognized as exclusive representative of all counselors and psychologists 	in the
District on May 17, 	1976. 	On July 28, 	1976, 	the 	parties agreed 	to 	ground rules 	for
negotiations inC'luding a rule stating that 	the location of negotiating sessions was
subject 	to negotiation. 	Representatives of 	the 	parties agreed 	t~at a negotiating
session would be held on September 18, 	1976 in 	the District's toard room. 	At the
September 18 meeting, 	no agreement was 	reached as 	to 	the location of 	the next
meeting, 	but at least nine subsequent meetings were held at 	the board t.oom or the
Superintendent's 	conference room. 	After September 18, 	the Association did not
propose any other location for negotiations.
At 	the September 18 meeting, 	and at various 	times 	thereafter, 	the 	District's
representative refused to negotiate the 	issues 	of psychologist and counselor case-
1-./ 	The motion to dismiss was 	not 	preserved at 	the time stipulated facts 	were
submitted and 	is not urged in the District's brief. 	Accordingly, 	it 	is not
addressed herein.
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loads, 	stating, 	according to 	the stipulated facts, 	that 	these matters were "not
within 	the scope of negotiations set 	forth 	in Government 	Code Section 3543.2." ]:_/
During 	the course of negotiations 	the Association has made use of copying 	facilities
and clerical assistance made available by the District. 	As 	of the date 	that the
stipulated facts were submitted, 	impasse had not been declared and the 	parties were
continuing to meet and negotiate.
The stipulated facts 	of the 	parties 	are adopted as 	the findings 	of fact
by the hearing officer.
ISSUES TO BE DETERMINED
1. 	Did the District 	fail 	to meet 	and negotiate in good faith by
unilaterally determining the site for negotiations?
2. 	Did the District 	fail 	to meet and negotiate in good faith 	by
foreclosing discussion of counselor and psychologist caseloads?
CONCLUSIONS OF LAW
1. 	Site 	for Negotiations
The Association initially contends 	that 	the District has demonstrated
bad faith by 	failing 	to agree to a site for bargaining other than 	the District's
board room. 	Assuming that such a failure 	to reach agreement might 	in a 	proper
case be grounds 	for 	finding 	that an unfair practice had been committed, 	the 	facts
in 	the 	present 	case will not support such a finding. 	After 	the 	initial bargaining
2/ All statutory references hereafter are 	to 	the Government Code unless 	otherwise
noted.
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session the Association did not propose an alternative site. 	The 	facts 	do not
indicate that 	the District 	refused 	to consider alternative sites nor that 	it
unreasonably opposed any suggestions of alternative sites. 	Under these 	circum-
stances, 	this aspect of the charge must be dismissed.
2. 	Refusal 	to Negotiate over Caseloads
Tne central question in this 	case 	is whether the District was 	required
to negotiate over psychologist and 	counselor caseloads. 	Section 3543.2 	of the
Educational Employment Relations Act 	(hereafter "Act") 	defines 	the scope of
representation as follows:
The scope of representation shall be limited to matters
relating to wages, 	hours 	of employment, 	and other terms
and conditions 	of employment. 	"Terms and conditions of
employment" mean health and welfare benefits as 	defined
by Section 53200, 	leave and 	transfer policies, 	safety
conditions 	of employment, 	class 	size, 	procedures 	to be
used for the evaluation of employees, 	organizational
security pursuant to Section 3546, 	and procedures 	for
processing grievances pursuant to 	Sections 	3548.5, 	3548.6,
3548. 7 and 3548.8. 	In addition, 	the exclusive represent-
ative of certificated personnel has 	the 	right 	to consult
on 	the definition of educational objectives, 	the determi-
nation of the content of courses and curriculum, 	and 	the
selection of textbooks 	to 	the extent such matters 	are
within the discretion of the public school employer under
the law. 	All matters not 	specifically enumerated are
reserved to 	the public school employer and may not be a
subject of meeting and negotiating, 	provided that nothing
herein may be construed to 	limit the 	right of 	the public
school employer to consult with 	any employees 	or employee
organization on any matter outside the scope of representa-
tion.
Initially, 	it 	is 	contended that 	caseloads 	for counselors and psychol-
ogists 	are analogous 	to 	class size for teachers, 	and that 	since 	the latter is
specifically enumerated as being within 	the 	scope of representation, 	it 	may be
reasonably 	inferred that 	the legislature 	intended 	to 	include caseloads as well.
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While 	there 	is an inherent logic 	to the proposition that caseloads should be as
fully 	negotiable as 	class size, 	the statutory language in 	this 	respect 	is 	unambig-
uous 	and limits 	the subjects 	of meeting and negotiating to wages, 	hours, 	and those
items 	specifically enumerated under terms and conditions of employment. 	This
limitation is plainly set forth by 	the first 	sentence of Section 3543.2, 	which
states 	that the scope of representation "shall be limited •.•. " 	The statutory
language, 	therefore, 	does not permit an interpretation of the 	term "class 	size"
beyond its plain and ordinary meaning.
, 	Although 	the term "caseload" is not 	listed as 	a term or condition of
employment, 	it may well be that certain aspects of a discussion of caseloads will
involve wages, 	hours, 	or other enumerated terms and conditions of employment such
as 	evaluation procedures. 	It would seem that 	a 	fruitful discussion of hours of
employment might of necessity involve a discussion of 	the caseloads 	to be serviced
within 	those hours, 	and it could well be 	that salary proposals, 	such as 	a 	proposal
for premium pay, 	would be related to caseloads. 	To completely foreclose 	discussion
of caseloads before determining whether this 	subject 	relates 	to matters within 	the
scope places an artificial limitation on negotiations 	not 	contemplated by Section
3543.2.
This 	approach to 	the problem of caseloads 	is 	similar to 	that 	taken 	in
Los Angeles 	County Employees Association, 	Local 	660 v. 	County of Los Angeles,
33 C.A. 	3d 1 	(1973). 	There the court was 	confronted with 	the question of whether
the size 	of caseloads for social workers was within 	the scope of representation of
the Meyers-Milias-Brown Act, 	defined broadly as 	"wages, 	hours, 	and other 	terms and
conditions of employment" 	(Sections 	3504, 	3505), 	or whether caseloads were outside
the scope under the exception stated in Section 	3504 	reserving to management
"consideration of the merits, 	necessity, 	or organization of any service or activity
-5-

provided by law or executive order." 	The county argued 	that consideration of the
size of caseloads would necessarily impinge upon the manner in which 	the county
fulfilled 	its 	statutory responsibility in determining eligibility for public
assistance, 	and that 	therefore this subject 	fell 	outside 	the scope. 	The 	court
noted 	that all management decisions might plausibly affect both areas 	of mandatory
service to 	the public and working conditions 	of public employees, 	and held 	that
the county must at least engage in limited negotiations over caseloads:
Section 3505 requires 	the governing body of 	the public
agency, 	or its 	representatives, 	to "meet and confer in
good faith 	regarding wages, 	hours, 	and other terms and
conditions 	of employment •.•. " 	There is no 	reason why
the public agency cannot 	discuss 	those aspects 	of the
caseload problem, 	even though 	the "merits, 	necessity,
or organization" of 	the service must be outside the
scope of the 	required discussion. 	Whether such limited
discussion 	is 	likely to be fruitful 	is nothing the
public agency should prejudge. 	33 C,A. 	3d at 5. 11
In the 	context of 	the Educational Employment 	Relations 	Act, 	the 	require-
ment 	to meet and negotiate 	in good faith 	includes a willingness 	to consider the
possible 	relationship between matters not specifically enumerated as being within
the scope of 	representation and those subjects which are 	clearly within scope.
This 	means that when a subject arises 	in 	the course of meeting and negotiating,
the employer canno~ simply refuse 	to discuss 	that subject on the grounds 	that 	it
does not 	literally fall within the scope of representation. 	If, 	after discussion,
11 	See also, 	Fire Fighters Union v. 	City of Vallejo, 	12 C. 	3d 608 	(1974), 	in
which 	the California Supreme Court 	refused 	to limit 	prematurely 	the 	scope of
arbitration, 	which under the 	Vallejo City Charter was 	coextensive with 	the
scope of representation, 	although 	the city contended that 	certain union pro-
posals, 	including one for constant manning procedures, 	i.e. 	workload, 	were
outside 	the 	scope of arbitration because 	they involved 	the "merits, 	necessity
or organization" of the 	fire 	fighting service and were 	therefore reserved to
management, 	Thus, 	the 	Court 	indicated that 	the management 	rights 	provision
in the Meyers-Milias-Brown Act, 	while acting as a 	limitation on 	the manner in
which 	a negotiating dispute may ultimately be resolved, 	does 	not 	prevent a
discussion of subjects which have ramifications beyond 	the scope of 	representa-
tion.
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it is 	apparent 	that the exclusive representative is making a 	proposal which
does 	not 	relate to any of the enumerated subjects within the scope 	of rep-
resentation, 	it is 	then appropriate for the employer to 	take the position that
the proposal is outside scope and 	that 	it will not negotiate over the 	proposal.ii
Insofar as 	a discussion of psychologist and counselor caseloads might
relate 	to subjects within scope of 	representation, 	the 	refusal of 	the District
to negotiate caseloads on the ground 	that 	this subject was 	outside 	the scope of
negotiations 	set 	forth in Section 3543.2 constitutes a 	refusal to meet 	and
negotiate in good faith 	in violation of Section 	3543.5(c). 	and derivatively
Subsection 	(b).
Section 3543.2, 	in addition to defining the scope of representation, 	pro-
vides 	that 	the exclusive 	representative of certificated personnel has 	the
"right 	to consult" 	over, 	among other things, 	the "definition of educational
objectives." 	This 	provision comports with 	the preamble 	(Section 3540) which
states 	that the purpose of the Act 	is "to promote 	the 	improvement 	of personnel
management 	and employer-employee 	relations within the public school systems
of California .•. and to afford certificated employees a voice in the 	formula-
tion of educational policy." 	It 	is 	quite 	likely that a discussion of 	the
size of caseloads would be relevant 	to consultation over educational 	objectives.
Cf. 	San Juan Teachers Association v. 	San Juan Unified School District,
44 	C.A. 	3d 232, 	247-8 	(1974).
The District contends that 	under 	Section 3543.2 	there 	is 	no category
of permissive subjects 	of bargaining such as 	exists under the National Labor
Relations Act. 	See NLRB v. Wooster Division .9...f the Borg-Warner Corp.,
356 U.S. 	342, 	42 LRRM 2034 	(1958). 	Arguably. 	however, 	the right 	to 	consult
creates an obligation which has 	some elements 	similar to 	permissive subjects
of bargaining. 	The facts 	presented do 	not indicate whether the Association
requested to 	"consult" over caseloads, 	and, 	if so, 	how the 	District 	responded.
Therefore, 	it 	is not necessary to determine the 	extent of the obligations
imposed on an employer when requested 	to consult over subject matter which
is 	outside 	the scope of representation.
-7-

ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions of law, 	and 	the entire
record of this 	case, 	it 	is hereby ordered:
I. 	The unfair practice charge by the Fullerton Union High School
District Personnel and Guidance Association that 	the Fullerton
Union High School District 	refused 	to meet 	and negotiate 	in 	good
faith by unilaterally determining the site 	for negotiations 	is
dismissed.
It 	is 	further ordered that:
II. 	The Fullerton Union High School District, 	its Board members,
superintendent and 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
Refusing to meet and negotiate 	in good faith with 	the 	Fullerton
Union High School District Personnel and Guidance Association
with regard 	to psychologist and counselor caseloads insofar as
these may relate to subject matter within the 	scope of 	represen-
tation;
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Prepare and post at 	each of its schools 	and work sites 	for
twenty 	(20) 	working days 	in conspicuous places, 	including all
locations where notices 	to employees 	are customarily posted,
copies of 	this order; 	and
2. 	At 	the end of 	the 	posting period, 	notify the Los Angeles
Regional Director of the Educational Employment 	Relations
Board of the action 	it has 	taken 	to comply with 	this 	order.
-8-

Pursuant to Title 8, 	California Administrative Code Section 35029,
this 	recommended decision and order shall become the final 	decision and order
of 	the Board itself on April 18, 	1977 	unless 	a party files 	a timely statement
of exceptions. 	See 	Title 8, 	California Administrative Code Section 35030.
Dated: 	April 4, 	1977.
-9-
Franklin Silver
Hearing Officer

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