Fullerton Union High School District (PERB 0020E)

STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
FULLERTON UNION HIGH SCHOOL DISTRICT
PERSONNEL AND GUIDANCE ASSOCIATION,
Charging Party
and
FULLERTON UNION HIGH SCHOOL DISTRICT,
Respondent
Case No. LA-CE-28
Decision No. 020
I
)
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 Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
The issue in the above-captioned matter is whether the Fullerton Union High
School District unlawfully failed to meet and negotiate on the subjects of
counselor and psychologist case loads. In the stipulated record, the sole
evidence presented by the parties on these issues is that the District's
representative refused to negotiate about counselor and psychologist
case loads in several negotiating sessions, stating that the issues were
not within the scope of negotiations as set forth in Government Code Section
3543.21.
Gov. Code Sec. 3543.2: 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 representative of certificated personnel
has the right to consult on the definition of educational objectives, the
determination 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 representation.

The Educational Employment Relations Board hereby remands the matter to
the hearing officer and, pursuant to 8 California Administrative Code
Section 350342, orders the record reopened for the taking of further evidence,
at a hearing or by stipulation or both. Such evidence shall indicate the
nature of the work performed by counselors and psychologists, and shall
demonstrate what, if any, relationship exists between counselor and psychologist
case loads and the matters specifically enumerated as within the scope of
representation in Government Code Section 3543.2. The hearing officer shall
not render another proposed decision, but shall return the record directly to
the Board itself. The parties may file supplemental briefs with the Board itself
within ten calendar days after the hearing officer has closed the record.
It is possible that state and federal cases holding that the work load of
employees is a negotiable subject
3
are not applicable pre dent	ce for interpre-
tation of the Educational Employment Relations Act (EERA) . These cases were
decided under the Meyers-Milias-Brown Act (or lo al	c enactment with scope of repre-
sentation language similar to that of the MMBA) and the National Labor Relations
Act, as amended, which have much broader scope of representation provisions
than the EERA in that they do not limit the definition of "terms and conditions
of employment" as does the EERA. These cases, with little or no discussion,
8 Cal. Admin. Code Sec. 35034: Board Action on Statement of Exceptions.
The Board itself may affirm, modify or reverse the recommended decision, order
the record reopened for the taking of further evidence, or take such other
action it considers proper.
Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services
Dist. (1975) 45 Cal. App.3d 116; Fire Fighters Union v. City of Vallejo (1974)
12 Cal.3d 608; Los Angeles County Employees Assn., Local 66	3600 v. County of Los
Angeles (1973) 33 Cal. App.3d 1; Gallenkamp Stores Co. v. NLRB (9th Cir. 1968)
402 F.2d 525, fn.4, 69 LRRM 2024, enforcing 162 NLRB 498, 64 LRRM 1045; NLRB v.
Bonham Cotton Mills, Inc. (5th Cir. 1961) 289 F.2d 903, 48 LRRM 2086, enforcing
121 NLRB 1235, 42 LRRM 1542; Beacon Piece Dyeing & Finishing Co., Inc. (1958
121 NLRB 953, 42 LRRM 1489.
Gov. Code Sec. 3540 et seq.
Gov. Code Sec. 3500 et seq.
6 29 U.S.C. Sec. 151 et seq.
Meyers-Milias-Brown Act, Gov. Code Sec. 3504: The scope of representation
shall include all matters relating to employment conditions and employer-employee
relations, including, but not limited to, wages, hours and other terms and con-
ditions 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.
(Continued on next page)
-2-

find work load related to either "wages, hours, and other terms and conditions
of employment" or "terms and conditions of employment". 	The EERA, however,
requires a relationship to an item specifically enumerated in the definition
of "terms and conditions of employment" or wages or hours. 	Given the limited
language of the EERA, we are not willing to make sweeping conclusions of law
regarding whether or not counselor and psychologist case loads are negotiable,
absent any facts whatsoever except that the District refused to negotiate on
the subjects.
ORDER
The Educational Employment Relations Board remands this case to the hearing
officer and orders the record reopened for the taking of further evidence, at a
hearing or by stipulation or both. 	Such evidence shall indicate the nature of
the work performed by counselors and psychologists, and shall demonstrate
what, if any, relationship exists between counselor and psychologist case
loads and the matters specifically enumerated as within the scope of
representation in Government Code Section 3543.2. 	The hearing officer shall
not render another proposed decision, but shall return the record directly to
the Board itself. 	The parties may file supplemental briefs with the Board
itself within ten calendar days after the hearing officer has closed the
record.
Raymond J. Gonzales,/Member 	f 	By: 	Jerilou 	H. Cossack, Member
Date: 	July 27, 1977
Reginald Alleyne, Chairman, dissenting:
I dissent from the opinion and order. 	The stipulation reached by the charging
(continued)
National Labor Relations Act, as amended, 29 U.S.C. Sec. 158(d): 	For the
purposes of this section, to bargain collectively is the performance of the
mutual obligation of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment...
Gov. Code Sec. 3542.2, supra.
-3-

party and the District is, in ray opinion, sufficient to place before the
Board for a decision on the merits the issue of the negotiability of caseloads
for psychologists and counselors and to conclude that the District violated the
EERA as charged and as found by the hearing officer. The Board's decision to
the contrary is inconsistent with California appellate case law by which we
are bound.
It is admitted by stipulation2 that the District refused to negotiate on
the subject of psychologist and counselor caseloads on the ground that caseloads
are outside the scope of representation as defined in Government Code Section 3543.2. 3
The majority opinion does not say what the hearing officer decided or
why. I agree with the result reached by the hearing officer and with most
of his reasoning.
2
The stipulation agreed to by both parties provides in pertinent part:
On September 18, 1976 the District's representative
refused to negotiate the issue of psychologist case-
load, stating that this issue was not within the scope
of negotiations as set forth in Government Code
Section 3543.2.
On September 18, 1976 the District's representative
refused to negotiate the issue of counselor case-
load, stating that this issue was not within the
scope of negotiations as set forth in Government
Code Section 3543.2.
The issues of counselor caseload and psychologist
caseload have arisen in subsequent negotiating
sessions. The District, however, has maintained
its position that these subjects are not within
the scope of negotiations as set forth in Government
Code Section 3543.2.
The text of Gov. Code Sec. 3543.2 is quoted in full at n. 1 of the
majority opinion.
-4-

Thus, the only question before the EERB is whether the subject of caseload for
counselors and psychologists is a "matter . . . relating to wages, hours of
employment and other terms and conditions of employment."4
I think a caseload for psychologists and counselors is inextricably related
to "hours" of employment, since at some caseload-level, a caseload must necessarily
affect the amount of time required to handle a caseload or the amount of work
required to handle the new caseload, or both.
The basic flaw in the analysis by the majority is the underlying premise
that the causal connection or lack of a causal connection between caseload
and "hours" or "other terms and conditions of employment", must be established
by evidence presented at a hearing, when, in fact, the issue is one of law,
and is so treated by courts.
All of the court cases cited at footnote 3 of the majority opinion hold
that a "workload" is a negotiable subject. The majority opinion misconceives
what the courts have done in "workload" decisions by stating that those cases
were decided "with little or no discussion." I think my colleagues do not
understand how the causal connection between the general subject of workload
and "terms and conditions of employment" is regarded as established as a matter
of law, as evidenced by the absence of a reliance by courts on facts beyond the
refusal to negotiate workload.
That is precisely what the court cases instruct when they decide, as did
the California Court of Appeal in Los Angeles County Employees Association,
Local 660 v. County of Los Angeles, that workload is negotiable as a term or
condition of employment, without relying upon facts to establish the relationship
between "workload" and "terms and conditions of employment." We are free to
decide whether a "caseload" is a negotiable subject, as a "matter relating
to . . . hours" or any other specified EERA Section 3543.2 subject of negotiations,
without relying upon facts to establish the relationship. That is what
4Ibid.
5 33 Cal. App. 3d 1, 83 LRRM 2916 (1973).
-5-

Justice Tobriner held for the California Supreme Court in the landmark California
case, Firefighters Union, Local 1186 v. City of Vallejo, when he concluded:
The proposal that the manning schedule presently
in effect be continued without change during the
term of the new agreement is arbitrable to the
extent that it affects the working conditions
and safety of the employees.7 [Emphasis added.]
My colleagues would escape the commands of the California judiciary by
reasoning that the Meyers-Milias-Brown Act (MMBA) and the National Labor Relations
Act (NLRA) cases have "much broader scope of representation provisions than the
EERA in that they do not limit the definition of 'terms and conditions of
employment1, as does the EERA." This reasoning entirely avoids the real issue
in this case.
Actually, the EERA, the MMBA and the NLRA differ in that "terms and conditions
of employment" are undefined in the MMBA and the NLRA, except that "wages" and
"hours" are expressly included in the phrase "terms and conditions of
12 C. 3d 608, 622-623; 116 Cal. Rptr. 507 (1974).
12 C. 3d at 623. The present case is a "negotiability" case and City of
Vallejo is an interest "arbitrability" case. But as Justice Tobriner noted in
his opinion, his reliance upon Los Angeles County Employees Association, Local
660, note 5 supra, holding that the workload of county eligibility workers is
negotiable, was justifiable since "under the charter provision at issue in
[City of Vallejo], the scope of negotiation and the scope of arbitration are
identical.
It might appear that City of Vallejo supports my colleagues' conclusion
that this case requires a remand for the taking of evidence beyond the
stipulation offered by the parties. Actually, the court in City of Vallejo
found manning procedures in a fire department arbitrable and remanded the
case to the arbitrator for the taking of evidence on the "divergent characterizations
of the [union's] manpower proposal." That remand to the arbitrator, following a
general finding of arbitrability, to the extent that the manning proposal affected
working conditions and safety of employees, was tantamount to a general finding
of the negotiability of caseloads by this Board and a cease and desist order
directing the District to negotiate with the charging party on the subject of
caseloads to the extent that caseloads affect "hours" or any other "terms and
conditions of employment" described in Gov. Code Sec. 3543.2. Otherwise, there
would have been no finding of arbitrability, i.e., negotiability, in advance of
the remand to the arbitrator in City of Vallejo.
-6-

employment";
8
the EERA limits "terms and conditions of employment" to "wages"
and "hours" and other enumerated subjects. Thus, the majority opinion, in
focusing on the extent to which the EERA places limits on the definition of
"terms and conditions of employment" focuses, quite irrelevantly, on the
limited number of enumerated provisions in Government Code Section 3543.2.
In so reasoning, they refuse to cope with the question of whether a caseload
is a matter related to "hours", even though that is part of the statutory
definition of the scope of representation contained in the EERA.
What my colleagues overlook is that the EERA places limitations on the
number of subjects that are negotiable, but the number of negotiable subjects
itself places no limitation on the extent to which a listed subject like "hours"
or a matter related to "hours" might be negotiable. Government Code Section
3540.1(h) describes what is meant by "meeting and negotiating" in respect to
all subjects within the scope of representation as defined in Government Code
Section 3543.2. It provides in part:
"Meeting and negotiating" means meeting, conferring,
negotiating, and discussing by the exclusive
representative and the public school employer in a
good faith effort to reach agreement on matters
within the scope of representation and the execution,
if requested by either party, of a written document
incorporating any agreements reached, which document
shall, when accepted by the exclusive representative
and the public school employer, become binding upon
both parties. . .. [Emphasis added.]
Thus, while the number of subjects that are negotiable under Government Code
Section 3543.2 is limited in comparison to other statutes defining the scope
of negotiability, under Government Code Section 3540.1(h), above, all negotiable
8
If the Legislature, in enacting the Meyers-Milias-Brown Act and the
Educational Employment Relations Act, had intended to make "wages" and "hours"
something other than "terms and conditions of employment", it would have
provided as a definition of the scope of representation: "wages", hours and also
terms and conditions of employment", rather than "wages, hours and other terms
and conditions of employment." The National Labor Relations Act is also an
"and other" statute. See NLRA Section 8(d), 29 U.S.C. 158(d).
9The hearing officer appropriately relied upon the District's refusal to
"discuss" caseloads. Contrary to the District's argument in its exceptions
and brief on appeal, Gov. Code Sec. 3540.1(h) includes "discussing" as an element
of the statutory definition of "meeting and negotiating."
-7-

subjects are equally negotiable. The only relevant question now before the
EERB is whether the subject of caseloads for psychologists and counselors
is a matter related to a subject listed in Government Code Section 3543.2.
The issue is not whether subjects not listed or not related to subjects
listed in Government Code Section 3543.2 are negotiable. If the Court of
Appeal, with no factual premise other than a refusal to negotiate, found that
a "workload" is a term or condition of employment, the EERB, with no factual
premise beyond the stipulated fact that the District would not negotiate
caseloads, may find that the caseload of counselors and psychologists is a
"matter related to . . . hours", and hence negotiable.
The majority decision, without deciding the issue one way or another,
overturns the parties' stipulation, reverses the hearing officer, and remands
the case for "further evidence, at a hearing or by stipulation or both". On
remand, the majority seeks evidence on "the nature of the work performed by
counselors and psychologists . . .." Actually, "the nature of the work performed
by counselors and psychologists" is not relevant to our determination on the
negotiability of caseloads; they work; they handle cases of some kind, and we
know that a "load" is the amount of work, or, more specifically, the number of
cases they handle. In the world of work, an attempt to negotiate caseloads
Note 5 supra.
The line of scope-of-bargaining cases decided by the United States Supreme
Court in recent years, deals primarily with the question of whether a proposed
subject of bargaining is sufficiently related to working conditions to qualify
as "terms and conditions" of employment." See Allied Chemical and Alkali Workers
v. Pittsburgh Plate Glass Co., 404 U.S. 157, 78 LRRM 2974, 2982 (1971); Teamsters
Union v. Oliver, 358 U.S. 283, 43 LRRM 2374 (1959); NLRB v. Borg-Warner Corp.
356 U.S. 342, 42 LRRM 2034 (1958). The methodology of our decision-making process
on the question of whether a subject like caseloads is related to a specific
subject of negotiations under the EERA, should not differ materially from that
used by the courts generally in determining whether a subject is sufficiently
related to working conditions to qualify as "terms and conditions of employment"
under Section 8 (d) of the NLRA.
-8-

always means an attempt to negotiate contract language placing some type of
limit on the number of cases handled.12 It is the amount and not the qualitative
aspect of the work that dictates the negotiability of a caseload. 	The actual
level of a caseload is an issue to be resolved at the negotiating table; and
whether any agreement is reached on any caseload level, is also a matter
properly left to the dynamics of the negotiating process.
The majority decision will have an adverse effect on the negotiating
process. 	The very matters which the Board majority is now remanding to a
hearing officer for the taking of evidence are matters properly brought into
dispute and resolved, if possible, at the negotiating table and not in an
unfair practice proceeding before the EERB once it is determined, as I think
it should be, that the general subject of caseloads for counselors and
psychologists is a negotiable subject.14 It will also have the adverse
effect of generally discouraging stipulations, since the Board's unjustified
refusal to decide this case on the basis of this stipulated record will discourage
many attempts to avoid a lengthy hearing by agreeing on the facts required for
the Board's resolution of a remaining question of law.
On this record, I would sustain the hearing officer and order the District to
cease and desist from refusing to meet and negotiate on the subject of caseloads
for psychologists and counselors to the extent that caseload is a matter related
to "hours . . . and other terms and conditions of employment."
Reginald Alleyne, Chairman
Webster's New World Dictionary of the American Language defines a caseload
as follows:
The number of cases being handled as by a court, social
agency, or welfare department, or by a caseworker, pro-
bationary officer, etc.
13
See note 7 supra.
14Ibid.
-9-