Sonoma County Office of Education (PERB 1225E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATION OF 	SONOMA COUNTY
OFFICE OF EDUCATION/CTA/NEA,
Charging 	Party,
v.
SONOMA COUNTY OFFICE OF EDUCATION,
Respondent.
)
)
)
) 	Case No. 	SF-CE-1827
PERB Decision No. 	1225
November 4, 	1997
)
)
)
)
)
)
Appearances: 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for Association of 	Sonoma County Office 	of 	Education/
CTA/NEA; 	School 	and College Legal 	Services by Robert 	S. 	Latchaw,
Representative, 	for Sonoma County Office of 	Education.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	Sonoma County Office 	of
Education 	(County) 	to an administrative 	law judge's 	(ALJ)
proposed decision 	(attached). 	The ALJ found that 	the County
violated section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations Act 	(EERA)1 when it 	increased the 	class 	size
JEERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 provides, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose 	or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.

in 	certain 	classrooms 	without 	providing 	the Association 	of 	Sonoma
County Office 	of 	Education/CTA/NEA 	(Association) 	with notice 	or
an 	opportunity 	to negotiate.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
The Board has 	reviewed the entire 	record, 	including
the ALJ's proposed decision, 	the County's 	exceptions and the
Association's 	response. 	The Board 	finds 	the ALJ's 	findings 	of
fact 	and conclusions 	of 	law to be 	free 	of prejudicial 	error and
adopts 	them as 	the 	decision of 	the Board 	itself.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law, 	and the entire record in the case, 	the Board finds 	that 	the
Sonoma County Office 	of 	Education 	(County) 	violated the
Educational Employment Relations Act 	(EERA), 	Government Code
section 3543.5(a), 	(b) 	and 	(c), 	when it increased class size
without 	providing the Association of 	Sonoma 	County Office 	of
Education/CTA/NEA 	(Association) 	with notice 	or an 	opportunity 	to
negotiate 	the 	change.
Pursuant 	to EERA section 3541.5(c), 	it 	is hereby ORDERED
that 	the 	County, 	its 	governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and 	refusing 	to meet 	and negotiate with
the Association about 	the 	change 	in 	class 	size 	in the 	court
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schools.
2. 	Denying the Association 	its 	right 	to 	represent
bargaining unit members 	in 	their 	employment 	relations 	with 	the
County.
3. 	Denying bargaining unit members 	their right 	to be
represented by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Return the 	court 	school 	class 	size practice 	to
that 	which prevailed prior 	to 	the 	change.
2. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no 	longer subject 	to reconsideration, 	post at
all 	work locations 	where notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the notice attached as an appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken to 	insure 	that 	this
notice 	is not 	reduced in size, 	altered, 	defaced or covered by any
other material.
3. 	Written notification of 	the actions 	taken to
comply with 	this 	Order shall 	be made 	to 	the 	San 	Francisco
Regional 	Director of 	the 	Public 	Employment 	Relations 	Board 	in
accordance 	with 	the 	director's 	instructions.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	SF-CE-1827,
Association of 	Sonoma County Office 	of 	Education/CTA/NEA v. 	Sonoma
County Office of 	Education, 	in which all parties had the 	right 	to
participate, 	it has been found that 	the Sonoma County Office 	of
Education 	(County) 	violated 	the 	Educational 	Employment 	Relations
Act 	(EERA), 	Government Code section 3543.5(a), 	(b) 	and 	(c) 	when it
increased 	class 	size without 	providing 	the Association of 	Sonoma
County Office 	of 	Education/CTA/NEA 	(Association) 	with notice 	or an
opportunity 	to negotiate 	the 	change.
As 	a result 	of 	this 	conduct, 	we have been ordered to post 	this
Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and 	refusing 	to meet 	and negotiate with 	the
Association about 	the 	change 	in class 	size 	in the 	court 	schools.
2. 	Denying the Association 	its 	right 	to represent
bargaining unit 	members 	in their employment 	relations 	with the
County.
3. 	Denying bargaining unit members 	their 	right 	to be
represented 	by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE EERA:
Return the 	court 	school 	class 	size practice 	to that which
prevailed prior 	to 	the 	change.
Dated: 	SONOMA COUNTY OFFICE 	OF
EDUCATION
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND MUST
NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED WITH ANY OTHER
MATERIAL.
==-=------==-------==- --

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATION OF 	SONOMA COUNTY
OFFICE 	OF 	EDUCATION/CTA/NEA,
Charging 	Party,
v.
SONOMA COUNTY OFFICE OF EDUCATION,
Respondent
)
)
)
) 	Unfair 	Practice
Case No. 	SF-CE-1827
PROPOSED DECISION
(10/24/96)
)
)
)
)
)
)
Appearances: 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for Association of 	Sonoma 	County Office 	of 	Education/
CTA/NEA; 	School 	and College 	Legal 	Services by Robert 	Latchaw,
Employer/Employee 	Relations 	Coordinator, 	for Sonoma 	County Office
of Education.
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	commenced on August 	24, 	1995, 	when the Association
of 	Sonoma 	County Office 	of 	Education/CTA/NEA 	(ASCOE) 	filed an
unfair practice 	charge against 	the 	Sonoma 	County Office 	of
Education 	(County). 	After investigation, 	and on October 24,
1995, 	the general 	counsel 	of 	the 	Public Employment Relations
Board 	(PERB or Board) 	issued a complaint 	against 	the 	County. 	The
complaint 	alleged that prior to August 	9, 	1995, 	the County had a
policy of 	limiting class 	size 	to 	approximately 	15 	students 	per
teacher. 	It was alleged that on August 	9, 	1995, 	the County
changed 	this 	policy by increasing 	the 	class 	size 	to 	approximately
2 0 	to 3 0 	students per teacher. 	The action was allegedly done
without 	notice 	to ASCOE, 	or providing ASCOE 	an opportunity to
negotiate 	the 	decision to 	implement 	the 	change 	in policy or 	its
effects. 	This 	action was 	said to be 	in violation of 	Educational

Employment 	Relations Act 	(EERA or Act) 	section 3 5 4 3 . 5 ( a ) , 	(b) 	and
(c).1
The 	County 	did 	not 	file 	an 	answer.2
Settlement 	efforts 	were 	without 	success.
Formal 	hearing was 	held 	on May 	21, 	1996, 	in 	Sonoma,
California. 	During 	the 	hearing, 	ASCOE 	moved 	to 	amend paragraphs
3 	and 	4 	of 	the 	complaint 	to 	delineate 	the 	specific 	areas 	in 	which
class 	size 	changes 	were 	made. 	The 	motion was 	granted. 	The
delineation 	was 	that 	the 	class 	size 	changes 	were 	made 	in 	the
court 	schools. 	With 	the 	filing 	of 	post-hearing 	briefs 	on 	July 	9,
1996, 	the 	matter 	was 	deemed 	submitted 	for 	decision.
1 EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to 	the
Government 	Code. 	In relevant 	part, 	section 	3543.5 	states 	that 	it
is 	an 	unfair 	practice 	for 	the 	public 	school 	employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed 	by 	this 	chapter. 	For 	purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet 	and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
2 After 	ascertaining 	from 	PERB 	files 	that 	no 	answer 	was 	on
file, 	the 	County was 	given 	an 	opportunity 	to 	submit 	an 	endorsed
copy 	of 	the 	answer 	filed 	with 	PERB. 	No 	endorsed 	copy 	was
provided.
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FINDINGS 	OF 	FACT
The 	County 	is 	an employer and ASCOE 	is 	the 	exclusive
representative 	of 	employees 	within the 	County, 	both within 	the
meaning of 	the Act.
The 	bargaining unit 	represented by ASCOE 	has 	176 	members 	and
includes 	teachers 	for the court 	schools, 	community schools,
special 	education, 	preschool, 	speech and language services,
adaptive physical 	education, 	hard of hearing, 	visually
handicapped 	and 	nurses.
Victor Trucco 	(Trucco) 	is 	director of 	the Alternative
Education Program, 	which 	includes 	the 	court 	and community
schools. 	Noel 	Shumway 	(Shumway) 	has 	served as 	the 	County
representative 	in negotiations 	and administration 	of 	the 	parties'
collective bargaining agreements 	(CBA).
Teresa Smith 	(Smith), 	is 	a speech and language 	therapist 	and
has 	served as ASCOE 	chief negotiator 	for 	four years.
The parties 	have had a 	series of 	successive CBAs, 	the 	last
of which ended June 	30, 	1994. 	While very extensive 	in covering
terms 	and conditions 	of 	employment, 	that 	agreement 	did not
contain any provisions 	on class 	size.
The 	County operates 	two 	court 	schools 	for 	student 	inmates
under 	the 	jurisdiction of 	the 	County probation department. 	One
school 	is Hamilton DeForest 	(Hamilton) 	and the 	other is 	the Youth
Camp. 	The 	students 	at 	both schools 	are 	awaiting 	sentencing by
the 	probation 	department.
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The 	court 	school 	classes 	run year round. 	Only enrolled
students 	may attend 	and 	the 	County gets 	standard 	average 	daily
attendance 	support 	from the 	State 	of 	California. 	Student
attendance 	is 	erratic but 	for at 	least 	15 	years 	the 	County has
maintained a practice 	of 	class 	size 	not 	exceeding 	15 	in 	the 	court
schools, 	with fewer 	in the maximum security area.3
On October 24, 	1994, 	during negotiations on a successor
agreement, 	the parties 	agreed to establish a joint 	study
committee 	to 	review 	issues 	relating 	to 	class 	size 	procedure
during the 	1994-95 	school 	year.4
The 	new article 	was 	initiated by ASCOE because 	there 	were
concerns 	about 	the ratio of 	students 	to teachers. 	ASCOE's 	1994-
95 	contract proposal, 	presented to the 	County on February 2,
1995, 	included a provision to continue 	the 	class 	size 	committee.
Sometime 	in March 	1995, 	Smith heard a 	complaint 	from Bill
Brooke, 	a teacher at Hamilton, 	that 	the County planned to
increase 	the 	class 	size 	at 	the 	school.
3Three 	teachers 	testified as 	to the 	class 	size 	at 	the
Hamilton site. 	One had been at 	the 	site 	for 15 years. 	His
testimony was 	that 	15 	was 	the 	class 	size 	for the 	live-in unit 	and
12 	for the maximum security area. 	A fourth teacher, 	assigned to
the Youth Camp 	for 25 years, 	had class 	sizes 	ranging 	from 17 	to
22, 	which were 	split with another teacher.
4The 	provision provided:
SCOE 	& ASCOE will 	establish a 	joint 	study-
committee 	to 	review 	issues 	during 	the 	1994-95
school 	year relating to 	class 	size procedure.
Committee membership will 	be 	by mutual
agreement.
4

Smith wrote to Shumway on March 23, 	1995, 	about the change
in class 	size 	from 15 	to 	1 	to 30 	to 1. 	She wrote that 	the 	change
was 	a 	change 	in working 	conditions 	and demanded 	to bargain 	class
size 	for the 	court 	school 	classes. 	Smith noted that 	in the prior
year's 	negotiations 	the parties 	had agreed to a 	class 	size
committee 	and 	that 	changing 	class 	size 	before 	the 	recommendations
of 	that 	committee 	issued 	"does 	not 	show good 	faith."5
The 	County did not 	respond to 	this 	letter.
The 	class 	size 	committee 	held 	four meetings 	between
February 21 and June 2, 	1995. 	On May 24, 	1995, 	the class size
committee 	issued 	a 	draft 	proposal 	that 	included a 	recommendation
of the 	15 	to 1 	ratio for court 	and community schools, 	with at
least 	one 	full-time 	assistant.
Mary Lantz 	(Lantz), 	assistant superintendent, 	wrote to class
size committee 	chair Friedman on June 	1, 	1995, 	expressing concern
about 	the 	committee 	recommendations 	on class 	size. 	With the
exception of 	one 	special 	program, 	she noted there were 	no 	legal
caseload maximums. 	Lantz 	suggested another approach.
Trucco made 	a presentation to 	the 	class 	size 	committee 	on
June 2, 	1995. 	Trucco explained a reorganization that was
occurring at 	the 	juvenile hall, 	and the 	impact of 	such change on
the class 	size ratio.6
5The 	committee 	was 	already underway and was 	chaired by Nancy
Friedman 	(Friedman), 	a member of 	the negotiating team for ASCOE.
6Minutes of the meeting, 	made by Friedman, 	reflect a
suggestion that 	Trucco 	said past practice was 	a 	class 	size 	of 	15
and that 	the 	range 	could go 	from 18 	to 	30. 	Trucco denied making
that 	statement. 	Because 	of 	other 	findings 	regarding the 	actual
55

practice 	in class 	size, 	it 	is unnecessary to resolve this
apparen	apparentt conflict	conflict.	.
On June 	8, 	1995, 	Lantz wrote to three teachers at Hamilton
and 	indicated that 	class 	size was 	to be 	in the 	range 	of 	20 	to 	24
students. 	Also planned, 	wrote Lantz, 	was to have an
instructional 	aide 	and juvenile 	hall 	assistant 	in 	the 	classroom.
On June 	27, 	1995, 	the 	County made a counter package proposal
to 	resolve negotiations. 	Among the provisions was 	to continue
the 	class 	size 	committee, 	adding more 	administrative
representatives, 	and that 	the parties would agree 	to meet 	and
negotiate 	following 	the 	committee's 	recommendations.
On that 	same 	day the parties' 	negotiations 	teams 	agreed to
meet 	and negotiate 	class 	size 	following 	recommendations 	of 	the
class 	size 	committee.
Also on that 	same day, 	Roberta Jue 	(Jue), 	ASCOE president,
wrote 	to 	Shumway regarding 	the 	County's 	failure 	to 	negotiate
court 	school 	class 	size per ASCOE's 	earlier request. 	Jue 	then
requested that 	no 	changes 	in 	the 	class 	size 	of 	court 	school
classrooms 	be made 	until 	the matter was 	resolved.
On July 7, 	1995, 	Shumway responded to Jue's demand. 	Shumway
countered 	that 	the 	County had 	responded 	to ASCOE's 	March 	23
demand to negotiate. 	He 	said earlier discussions 	lead the 	County
to understand that 	the 	issue was 	included 	in the 	class 	size
committee's 	charge. 	He noted Trucco's 	June 	2 	meeting with the
committee 	to 	explain 	the 	impact 	of 	court 	school 	program on 	class
size. 	He 	stated that 	if ASCOE did not want 	the 	committee 	to
66

carry out 	the 	charge, 	then the 	County would bargain the 	issue.
He 	expressed his 	disappointment 	that 	ASCOE was 	changing 	the
ground rules 	in 	the middle 	of 	"this 	collaborative process."
George Cassel, 	ASCOE representative, 	responded on August 	18,
1995, 	noting that 	Shumway was 	ignoring the 	fact 	that 	the 	County
was not waiting 	for the 	committee's 	recommendations, 	but 	rather,
during the 	class 	size 	committee's deliberations, 	was 	itself
making an unilateral 	change at 	the 	court 	schools.
On August 	9, 	1995, 	principal Laurie Mason notified all 	court
school 	and community 	school 	teachers 	that 	their 	1995-96
assignments would have enrollments 	of 	20 	to 	30 	students.
Trucco 	said that 	as 	a result 	of 	the 	change, 	there 	is now one
instructor, 	one 	assistant 	and up 	to 	three probation 	supervisors
for up to 3 0 students.
ISSUE
Whether the assignment of 2 0 	to 3 0 	students per teacher was
a violation of 	the Act?
CONCLUSIONS 	OF 	LAW
An employer's 	unilateral 	change 	in 	terms 	and conditions 	of
employment within the 	scope of 	representation is, 	absent 	a valid
defense, 	a per se 	refusal 	to negotiate 	and violative 	of 	EERA
section 3543.5(c). 	(Regents of the University of 	California
(1985) 	PERB Decision No. 	520-H; 	Pajaro Valley Unified School
District 	(1978) 	PERB Decision No. 	51.)
To prevail 	on a 	complaint 	of unilateral 	change, 	the 	charging
party must 	establish by a preponderance 	of 	the 	evidence 	that
77

(1) 	the 	employer breached or altered the party's written
agreement 	or own established past practice; 	(2) 	such action was
taken without 	giving 	the 	exclusive 	representative 	notice 	or 	an
opportunity to bargain over the change; 	(3) 	the 	change 	is not
merely an isolated breach of 	the 	contract, 	but 	amounts 	to a
change 	of policy 	(i.e., 	having a generalized effect 	or 	continuing
impact upon bargaining unit members' 	terms 	and conditions 	of
employment); 	and 	(4) 	the change in policy concerns a matter
within the 	scope 	of 	representation. 	(Grant 	Joint 	Union High
School District 	(1982) 	PERB Decision No. 	196 	(Grant); 	Pajaro
Valley Unified School District, 	supra, 	PERB Decision No. 	51;
Davis Unified School District, 	et al. 	(1980) 	PERB Decision
No. 	116.)
The 	County urges 	that 	the union has 	failed to prove 	a
violation of 	the Act 	under 	the 	Grant 	analysis.
I 	disagree. 	Taking the Grant 	analysis 	in reverse order,
class 	size 	is 	expressly referred to 	in EERA's 	definition of 	scope
of 	representation.7
The 	implementation of 	the 	higher 	class 	size 	ratio was 	not 	a
breach of 	the 	agreement, 	as 	the 	agreement 	did not 	refer to 	class
size. 	However, 	the 	increase 	in class 	size ratio 	for the 	court
schools 	did amount 	to 	a 	change 	of policy and has 	a generalized
effect 	and continuing 	impact 	upon bargaining unit 	members' 	terms
and conditions 	of 	employment.
7Section 3543.2.
88

There 	is 	no question that 	the past 	practice was 	to 	have 	no
more 	than 15 students 	in each class. 	There 	is 	no question that 	a
new and higher 	ratio was 	placed 	into 	effect 	and 	that 	this 	created
a different 	set 	of working conditions 	for the 	teachers. 	The
County recognized this 	(along with the probation department) 	by-
adding an 	instructional 	aide 	and up 	to 	three probation 	officers
in 	each 	classroom.
The 	County never gave ASCOE notice 	of 	the 	intended change.
The 	County made 	the 	decision to 	change 	the 	class 	size practice,
and when ASCOE 	learned of 	this 	change 	and demanded 	to 	negotiate,
the 	employer refused. 	ASCOE wrote 	to 	the 	County 	in March 	1995
with 	information of 	a possible 	change, 	and demanded to bargain
any change 	in class 	size. 	The 	County ignored this 	request.
ASCOE wrote to the County again, 	on June 27, 	1995, 	noting the
failure 	to 	respond to 	the 	request 	to negotiate made 	earlier and
requested no 	change 	in class 	size 	until 	the 	matter had been
resolved with ASCOE.
The 	County 	responded 	to 	this 	demand with 	the 	disingenuous
contention 	that 	ASCOE was 	bypassing 	the 	class 	size 	committee's
work. 	Thus, 	it 	is 	clear that ASCOE was denied the opportunity to
negotiate 	the 	change.
Under the 	last 	of the Grant 	criteria, 	the 	change of 	class
size 	in the court schools to 2 0 	to 3 0 	students 	for each teacher
was 	a 	striking contrast 	to 	the past 	practice of 	class 	size 	ratios
of 	15 	to one 	teacher.
9

I 	conclude 	that ASCOE 	has 	established a unilateral 	change
under Grant.
The 	County argues 	that 	since 	none 	of ASCOE's witnesses 	are
currently teaching 	in the 	court 	schools, 	there 	is no demonstrated
impact 	of 	the 	increased class 	size policy.
This 	argument 	is 	rejected. 	The 	statutory definition of
scope 	of 	representation expressly 	includes 	class 	size. 	Since
class 	size 	itself 	is negotiable, 	the 	charging party need not
demonstrate 	some 	impact of a change 	in class 	size, 	before
prevailing on a 	charge of unilateral 	change of 	class 	size. 	The
testimony of 	the 	teachers 	clearly established 	a past 	practice 	of
a maximum of 	15 	students per teacher. 	Trucco's 	testimony
established that 	the 	class 	size has gone 	to as 	high as 	30
students 	to one 	teacher.8
The 	County argues 	that 	the 	employer's 	rights provision of
the parties' 	CBA, 	which includes 	the right 	to determine 	staffing
patterns, 	authorizes the change in class 	size.
However, 	waiver by contract 	is 	an affirmative defense 	that
was 	never 	raised by the 	County before 	or during 	the 	hearing.
PERB Regulation 	326449 imposes 	upon a 	respondent 	the 	duty to 	set
forth any affirmative 	defense 	in 	its 	answer. 	The 	County did not
file 	an answer to the 	complaint, 	and no affirmative 	defense 	is
8The 	fact 	that 	there 	are 	additional 	staff 	in 	the 	classroom
does 	not 	mitigate 	the 	negotiability of 	class 	size.
9PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
10

before 	the 	administrative 	law 	judge.10 (See 	Beverly Hills
Unified School 	District 	(1990) 	PERB Decision No. 	789.)
Accordingly, 	the 	defense 	of 	the 	employer's 	rights provision
is rejected.11
The 	County contends 	that 	class 	size 	ratio of 	1 	to 	15 	is 	a
bargaining position 	and 	thus 	should not 	be 	imposed on 	the 	County.
As the 	forgoing analysis has demonstrated, 	however, 	the 	clear and
undisputed past practice 	is 	to have 	class 	size 	at 	15 	or 	less.
The 	County unilaterally changed 	this 	past 	practice 	when 	it
boosted class 	size to 20 	to 30 	students. 	By that 	action, 	the
County violated section 3543.5(c) 	and, 	derivatively, 	section
3543.5(a) 	and (b).
REMEDY
Under section 3541.5 (c) 	PERB is empowered to:
. 	. 	. 	issue a decision and order directing an
offending party to 	cease 	and desist 	from the
unfair practice 	and 	to 	take 	such affirmative
action, 	including but 	not 	limited to the
reinstatement 	of 	employees 	with or without
back pay, 	as will 	effectuate 	the policies of
this 	chapter.
It 	has 	been 	found that 	the 	County violated EERA when 	it
unilaterally 	increased the 	class 	size 	of 	the 	court 	schools. 	This
10The parties were 	advised at 	the 	hearing that 	because 	of 	the
absence 	of 	an answer on 	file, 	I would consider no affirmative
defenses.
11Even if 	one were 	to consider the 	contract 	defense, 	class
size 	and 	staffing patterns 	do not mean 	the 	same 	thing. 	Class
size 	defines 	the 	ratio of 	students per teacher. 	There was 	no
evidence 	in 	the 	record to 	ascertain what 	staffing pattern was
meant 	by the parties 	in this 	case. 	Staffing patterns 	could mean,
among other things, 	allocation of personnel 	to specific duties.
11

same 	conduct 	was 	found to 	interfere 	with ASCOE's 	rights 	to
represent 	bargaining unit 	members, 	and constituted 	interference
with bargaining unit members' 	right 	to be 	represented by ASCOE.
It 	is 	appropriate 	to 	order the 	County to 	cease 	and desist 	from
such activity in the 	future. 	It 	is 	further appropriate 	to order
the County to restore the 	status quo ante, 	that 	is, 	return to the
class 	size 	ratio that prevailed before 	the unlawful 	act. 	(See
Compton Unified School District 	(1989) 	PERB Decision No. 	784.)
The 	County will 	restore 	the practice of 	class 	size 	ratios 	to 	1 	to
15, 	save 	for the maximum security area, 	where the 	class 	size was
1 to 12.
It 	is 	also 	appropriate 	that 	the 	County be 	required to post 	a
notice 	incorporating the 	terms 	of 	the 	order. 	The 	notice 	should
be 	subscribed by an authorized agent 	of 	the 	County, 	indicating
that 	it will 	comply with the 	terms 	thereof. 	The notice 	shall 	not
be 	reduced 	in 	size. 	Posting 	such a notice will 	provide 	employees
with notice 	that 	the 	County has 	acted 	in 	an unlawful 	manner 	and
is 	being 	required to 	cease 	and desist 	from this 	activity and will
comply with the 	order. 	It 	effectuates 	the purposes 	of 	EERA that
employees 	be 	informed of 	the 	resolution 	of 	the 	controversy and
will 	announce 	the 	readiness 	of 	the 	County to 	comply with the
ordered remedy. 	(Davis Unified School District, 	et al., 	supra,
PERB Decision No. 	116; 	Placerville Union School District 	(1978)
PERB Decision No. 	69.)
12

PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire record in the 	case, 	and pursuant 	to the
Educational Employment Relations Act 	(Act), 	Government Code
section 3541.5(c), 	it 	is hereby ordered that the Sonoma County
Office of 	Education 	(County) 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet 	and negotiate 	with the
Association 	of 	Sonoma 	County Office 	of 	Education/CTA/NEA 	(ASCOE)
about 	the 	change 	in class 	size 	in the 	court 	schools.
2. 	Denying ASCOE 	its 	right 	to 	represent 	bargaining
unit 	members 	in their 	employment 	relations with the 	County.
3. 	Denying bargaining unit 	members 	their right 	to be
represented by 	their 	chosen 	representative.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE ACT:
1. 	Return to the 	court 	school 	class 	size practice 	that
prevailed prior to 	the 	change.
2. 	Within 10 days of 	service of this proposed
decision, 	post 	at 	all work locations where notices 	to employees
are 	customarily placed, 	copies 	of 	the notice 	attached as 	an
appendix hereto. 	Such posting 	shall 	be maintained 	for a period
of 	thirty 	(30) 	consecutive work days. 	Reasonable 	steps 	shall be
taken 	to 	ensure 	that 	said notices 	are 	not 	reduced 	in 	size,
altered, 	defaced or 	covered by any other material.
3. 	Upon issuance of a 	final 	decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with the 	Order to 	the
13

San 	Francisco Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in 	accord with the 	director's 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento 	within
20 	days 	of 	service 	of 	this Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions 	of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before the close of business 	(5 p.m.) 	on the 	last day
set 	for 	filing 	". 	. 	. o r when sent by telegraph or certified or
Express United States mail, 	postmarked not 	later than the 	last
day set for filing . 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 	shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently with 	its 	filing upon each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each 	copy 	served on 	a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs.
32300, 	32305 and 32140.)
Gary Gallery
Administrative"Liaw 	Judge
14