Mt. Diablo Unified School District * * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * * (PERB 0373EB)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
MT. 	DIABLO EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
and
JOHN MILLS, 	PETER MOLINO, 	CAROL YOUNG,
CATHERINE AVINGTON, 	LAURIE 	PETERSON
AND 	LES 	GROOBIN,
Intervenors,
v.
MT. 	DIABLO UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. 	SF-CE-452
Request 	for 	Reconsideration
PERB Decision No. 	373
PERB Decision No. 	373b
August 15, 	1984
MT. 	DIABLO FEDERATION OF TEACHERS,
LOCAL 1902, CFT/AFT, AFL-CIO,
JOHN MILLS, 	PETER MOLINO, 	CAROL YOUNG,
CATHERINE AVINGTON, 	LAURIE PETERSON
AND 	LES 	GROOBIN,
Charging 	Parties,
v.
MT. 	DIABLO UNIFIED SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-455
Appearances: 	Kirsten L. 	Zerger, 	Attorney for Mt. 	Diablo
Education Association, 	CTA/NEA. Gregory J. 	Dannis, 	Attorney
(Breon, 	Galgani, Godino and O'Donnell) 	for Mt. 	Diablo Unified
School District; 	W. 	Daniel Boone, 	Attorney 	(Van Bourg, 	Allen,
Weinberg & Roger) 	for 	the individual 	charging parties; 	Peter A.
Janiak, 	Attorney, 	for 	the California School Employees
Association, 	as Amicus Curiae; 	Glenn Rothner, 	Attorney 	(Reich,
Adell 	& Crost) 	for 	the American Federation of State, 	County and
Municipal Employees 	and 	the California Faculty Association, 	as
Amicus Curiae; 	Bernard L. 	Allamano, 	Attorney for 	the California
State Employees Association, 	as Amicus Curiae.
Before Hesse, Chairperson; 	Jaeger, Morgenstern, and Burt,
Members.
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* * * OVERRULED IN PART by The Accelerated Schools (2023) PERB
Decision No. 2855 * * *

DECISION
JAEGER, 	Member: 	The 	Public Employment Relations Board
(PERB or 	Board) having duly considered 	the 	request 	for
reconsideration1 submitted by 	the Mt. 	Diablo Education
Association, 	CTA/NEA 	(MDEA or Association) 	and the 	individually
named Charging Parties, 	hereby grants 	that 	request, 	in part,
consistent 	with 	the 	discussion 	below.2
1PERB 	rules 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq. 	PERB rule 	32410(a), 	which
governs 	reconsideration requests, 	provides:
Any 	party to a 	decision of 	the 	Board 	itself
may, 	because of 	extraordinary circumstances,
file 	a 	request 	to 	reconsider 	the 	decision
. 	. 	. 	The grounds 	for requesting
reconsideration 	are 	limited to 	claims 	that
the 	decision of 	the 	Board 	itself 	contains
prejudicial errors 	of 	fact, 	or newly
discovered 	evidence 	or 	law which was 	not
previously available 	and 	could 	not 	have 	been
discovered 	with 	the 	exercise 	of 	reasonable
diligence.
2 In the 	underlying decision, 	the 	Board 	found 	that 	the
District violated subsections 3543.5(a), 	(b), 	and 	(c) of the
Educational 	Employment 	Relations 	Act 	(EERA or Act) 	by 	refusing
to negotiate 	the 	impact 	of 	its 	decision to lay off 	certificated
employees.
The 	EERA 	is 	codified at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory references 	are to the Government Code
unless 	otherwise 	indicated.
Section 3 543.5 provides, 	in relevant part:
It 	shall 	be 	unlawful 	for 	a public school
employer to:
(a) 	Impose or 	threaten 	to impose reprisals
on 	employees, 	to discriminate or 	threaten to
discriminate against 	employees, 	or otherwise
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to 	interfere with, 	restrain, 	or coerce
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 negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
DISCUSSION
1. 	Duty To Bargain 	Impact 	of 	Layoffs
The Association 	requests 	reconsideration of 	the Board's
determination, 	at p. 	26 of 	the underlying Decision, 	that 	"an
employer's 	duty to provide 	notice 	and 	an opportunity 	to
negotiate 	the 	effects 	of 	its decision 	to 	lay off 	arises 	when
the 	employer 	reaches 	a 	firm decision 	to 	lay off."3 	(Emphasis
added.)
The Association's 	argument 	is 	simply a 	restatement 	of 	its
position before 	the 	Board, 	which 	was 	considered and 	rejected 	in
the 	underlying Decision. 	In 	Rio Hondo Community College
District 	(5/16/83) 	PERB Decision No. 	279a, 	the Board 	indicated
that 	a 	mere 	restatement 	of a 	legal 	argument 	that 	was 	considered
and 	rejected by 	the 	Board 	is 	not 	an 	"extraordinary
circumstance" 	which 	justifies 	granting 	reconsideration of a
Board decision. 	We, 	therefore, 	deny the request 	for
reconsideration 	of 	this 	portion 	of 	the 	underlying Decision.
3As 	the Board 	noted 	in 	the 	underlying Decision, 	the
determination of 	when 	management has 	reached a 	"firm decision" 	to 	lay
off 	is 	a question of 	fact. 	Based on the record 	in this 	case, 	the
Board 	found 	that 	the 	Association 	failed 	to prove 	that 	the 	District
reached 	a 	firm decision 	to 	lay off 	prior 	to 	the promulgation 	of 	the
school board's 	implementing 	resolutions.
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See 	also Anaheim City School 	District 	(5/14/84) 	PERB Decision
No. 	364a; 	Pittsburg Unified School District 	(4/2/84) 	PERB
Decision No. 	318a.
2. 	Same Date of Hire
The Association 	requests 	reconsideration 	of 	the 	Board's
determination 	that 	Education 	Code 	section 	449554 	"creates 	an
inflexible 	standard 	which 	supersedes 	the 	right 	of 	employees 	to
negotiate 	the 	criteria 	for 	determining 	the 	order 	of 	layoff 	of
employees 	with 	the 	same date of hire." 	(Decision, 	p. 	44.)
Again, 	the Association's 	argument 	is a restatement of 	its
previous 	position before 	the 	Board 	which 	was 	rejected by 	the
Board majority. 	Accordingly, 	the Association's 	request 	for
reconsideration of 	this 	issue 	is denied. 	Rio Hondo Community
College District, 	supra; 	Anaheim City School District, 	supra;
Pittsburg Unified 	School 	District, 	supra.
3. 	Sua Sponte 	Board 	Review
In his 	proposed 	decision, 	the hearing 	officer 	found 	that
certain proposals 	submitted by 	the 	Association were 	within 	the
scope of 	representation 	and 	that 	the District's 	refusal 	to
4Education 	Code 	section 	44955 provides 	in relevant part:
As 	between 	employees 	who 	first 	rendered 	paid
service 	to 	the district 	on the 	same 	date,
the 	governing board 	shall 	determine 	the
order 	of 	termination 	solely on 	the basis 	of
the 	needs 	of 	the district 	and 	the 	students
thereof.
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negotiate 	those proposals 	constituted 	a 	violation of 	its 	duty
to 	negotiate 	in good 	faith. 	Other proposals he 	found 	to be
outside 	the 	scope 	of 	representation and dismissed 	those
portions 	of 	the 	charge accordingly. 	The parties 	did not 	file
exceptions 	to a number of 	these determinations. 	Citing Fresno
Unified School District 	(4/30/82) 	PERB Decision No. 	208, 	the
Board determined 	that, 	despite 	the 	fact 	that 	no exceptions 	were
filed, 	it 	was 	necessary to 	review certain of the hearing
officer's 	findings 	sua 	sponte 	in order 	to 	avoid a 	serious
mistake of 	law. 	The Board 	found 	that 	it 	would be 	inappropriate
to 	summarily 	affirm 	the hearing 	officer's 	determination 	that 	a
proposal 	was 	negotiable—where 	the 	Board 	itself 	disagreed 	with
the hearing 	officer's 	determination—since 	the 	Board 	might
"find 	itself 	in 	the position of ordering 	an employer 	to
negotiate 	over a 	subject 	of bargaining 	which 	it ha[d] 	no 	legal
duty to negotiate." 	(Decision, 	p. 	37, 	fn 20.) 	Thus, 	the Board
undertook 	sua 	sponte 	review of 	those 	scope 	findings 	where 	the
Board 	felt 	that 	the hearing 	officer had 	erred 	in his
determination 	that 	a proposal 	was 	within 	the 	scope 	of
representation. 	However, 	the Board 	summarily affirmed 	those 	of
the hearing 	officer's 	scope 	determinations 	with 	which 	it 	agreed.
The Association 	requests 	reconsideration 	of 	the 	Board's
determination 	that 	it 	was 	appropriate 	to analyze 	certain of 	the
bargaining 	proposals 	sua 	sponte 	in 	order 	to determine 	whether
they 	were within 	the 	scope of 	representation. 	The Association
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raises 	a 	number 	of 	separate 	arguments 	in connection with 	this
basic 	contention.
First, 	it 	restates 	its argument 	that 	it was 	"unfair" 	for
the 	Board 	to 	consider 	the 	District's 	scope 	of 	representation
defense, 	since that 	defense was 	first 	raised 	in the District's
reply brief, 	to which 	the Association had no opportunity 	to
respond.
In the 	underlying Decision, 	the Board 	rejected 	this
argument, 	stating 	that 	the Association had 	the 	ultimate burden
of proving 	(l) 	that 	the employer 	refused 	to negotiate 	in good
faith, 	and 	(2) 	that 	that 	refusal concerned a matter within the
scope of representation. 	(Decision at p. 	37, 	fn 20.) 	Thus,
the 	Board 	concluded 	that 	"it 	was 	not 	only proper 	for 	the
hearing officer 	to consider 	this 	issue, 	but 	it 	was 	required 	as
a matter 	of 	law." 	(Id.) 	In our view, 	the 	Board's
determination was 	proper 	and, 	we 	therefore 	deny 	the
Association's 	request 	for 	reconsideration of 	this 	issue.
Next, 	the Association 	argues 	that 	the Board 	should have
required 	the District 	to 	seek 	clarification 	of 	ambiguous
proposals 	as 	required 	in Healdsburg Union High 	School 	District
and 	Healdsburg Union 	School 	District/San Mateo City 	School
District 	(1/5/84) 	PERB Decision No. 	375.5
5In 	Healdsburg, 	supra, 	at p. 	9, 	the Board determined 	that:
it 	is 	necessary 	to balance an employer's
duty to 	negotiate 	in good 	faith and 	its
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right 	to be 	adequately 	informed 	of 	the
exclusive 	representative's 	specific
negotiating 	interests. 	The 	resolution we
find 	to be both practical 	and 	consistent
with 	the give-and-take of 	the bargaining
process 	is 	to utilize 	that process 	itself 	to
resolve 	the 	ambiguities 	present 	in
bargaining proposals. 	This 	requires 	the
objecting party 	to 	make 	a 	good 	faith effort
to 	seek 	clarification 	of 	questionable
proposals 	by voicing 	its 	specific 	reasons
for believing 	that 	a proposal 	is 	outside 	the
scope 	of 	representation 	and 	then 	entering
into negotiations 	on 	those 	aspects 	of
proposals 	which, 	following clarification by
the other party, 	it 	finally views 	as
negotiable.
Since 	Healdsburg 	issued after 	the 	underlying Decision, 	we
find 	it 	appropriate 	to grant 	reconsideration 	to apply 	the 	duty
to clarify 	standard. 	However, 	we have 	reviewed 	the
Association's bargaining proposals 	in the 	instant 	case, 	and 	do
not 	find 	them ambiguous. 	Thus, 	we 	find 	the Board's
determination 	in the 	underlying Decision, 	that 	certain of 	the
Association's proposals 	were nonnegotiable, 	was based on clear
language 	and 	thus 	there 	is 	no need 	to order 	the District 	to
seek 	clarification of 	those 	proposals 	which 	we 	found
nonnegotiable.
Finally, 	the Association 	argues 	that 	the 	right 	of PERB to
review matters 	sua 	sponte 	"does 	not 	require 	review of 	matters
where 	the 	record 	is 	incomplete 	and 	the parties have 	not had 	an
opportunity 	to 	litigate 	the 	matter 	fully." 	In 	such
circumstances, 	the Board 	is unwarranted 	in reviewing 	the 	record
sua sponte. 	In the 	instant case, 	the Association asserts, 	a
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complete 	record 	does 	not 	exist 	upon 	which PERB could base 	a 	sua
sponte 	review. 	In particular, 	because of the District's
"surprise" 	scope of 	representation defense, 	the Association was
precluded 	from presenting 	evidence 	that 	reassignment 	of
librarians 	was 	a 	foreseeable 	result 	of 	the 	decision 	to 	lay 	off
or 	that 	the 	existing 	collective 	agreement 	did not 	cover 	the
extra 	work 	performed by librarians 	as 	a 	result 	of 	the 	layoff.
By not 	affording 	the Association 	the 	right 	to 	litigate 	this
question 	fully, 	it 	asserts 	that 	it 	was 	effectively denied due
process 	by 	the 	Board's determination.
For 	several 	reasons, 	we 	find 	it difficult 	to 	see how the
Association was denied due process 	in this case. 	First, 	as
noted 	above, 	the Association had 	the burden of proving 	that 	the
District 	refused 	to negotiate 	about 	matters 	within the 	scope of
representation. 	Second, 	it had 	the option of excepting 	to 	the
hearing 	officer's 	treatment 	of 	scope 	issues. 	Rather 	than
arguing 	that 	the proposals were negotiable, 	however, 	the
Association excepted 	to 	the hearing 	officer's 	decision 	on 	the
ground 	that he had no 	"authority" 	to 	consider 	the 	District's
scope of representation defense. 	Unfortunately, 	the
Association did 	not 	choose 	to brief 	the 	Board 	on any 	specific
scope of 	representation 	issue. 	It was 	not precluded 	from
raising 	these 	issues 	in 	its brief before 	the Board.
In sum, 	we 	find 	that 	the Board's handling of 	scope 	issues
sua 	sponte was 	fair and 	reconsideration 	is 	unwarranted.
8

4. 	Uncharged Violations
In the 	underlying Decision, 	the Board 	found 	that 	in order
to prove 	a violation of 	the 	duty 	to bargain 	the 	effects 	of 	a
layoff decision, 	the Association need 	only show that, 	at 	the
time 	the 	employer 	allegedly 	refused 	to negotiate 	concerning
layoff effects, 	it 	was 	reasonably 	foreseeable 	that 	a 	layoff
would 	impact 	the 	working conditions 	of 	employees. 	The 	Board
also 	indicated 	that 	a 	discrete 	violation 	could be 	found 	where,
irrespective 	of 	whether 	the 	exclusive 	representative 	sought 	to
negotiate 	the 	impact of layoffs, 	the employer 	later
unilaterally 	changed 	the 	working 	conditions 	of 	those 	employees
who were 	not 	laid off.
However, 	the Board 	refused 	to 	find 	an 	independent 	violation
based on unilateral 	changes 	in 	the 	working conditions 	of
employees 	not subject 	to the 	layoff, 	reasoning as 	follows:
Whether 	or 	not 	the hearing 	officer 	correctly
found, 	as he apparently did, 	that, 	as a
result 	of 	the District's decision 	to 	reduce
certificated 	services, 	it unilaterally
increased 	the 	workload 	of 	District
counselors 	and 	librarians 	and 	altered 	the
stipends 	of 	coaches 	during 	the ensuing
school year, 	we 	cannot 	find 	an 	independent
violation of 	the Act 	since 	the Association
never 	filed 	an 	independent 	unfair 	practice
charge. 	The Association's 	unfair practice
charge 	in this case was 	filed on March 	25,
1980, 	and alleges 	that 	the District 	refused
to 	negotiate 	in good 	faith 	concerning 	the
effects 	of 	its decision to 	lay off
certificated 	employees. 	Although evidence
concerning unilateral 	changes 	that 	occurred
in the 	fall 	of 	1980 was 	introduced 	at 	the
hearing, 	the Association neither 	amended 	its
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unfair 	practice 	charge 	nor 	filed 	a 	new
charge 	independently 	alleging 	a 	violation 	of
the District's 	duty 	to negotiate 	in good
faith. 	As 	such, 	this 	later conduct can only
be 	used 	as 	background 	evidence 	for
adjudicating 	the 	earlier 	unfair 	practice
charge 	and 	may not 	form 	the basis 	of a
finding 	that 	the 	District 	independently
violated 	the Act. 	Therefore, 	we conclude
that 	the hearing officer's 	award of back pay
based 	on 	that 	conduct 	exceeded his
jurisdiction within 	the 	confines 	of 	this
case. 	(Decision, 	p. 	69-70.)
The 	Board 	further 	noted 	in a 	footnote 	that 	"[a]lthough 	the
Board has, 	on several occasions, 	found Unalleged violations, 	it
has 	never 	extended 	this 	principle 	to 	conduct 	occurring 	after
the 	filing of 	the unfair practice charge." 	(Decision, 	p. 	70,
fn 	31.)
The Association 	argues 	that 	the 	unfair practice 	charge 	in
the 	case 	did 	properly 	allege 	that 	the District had 	unilaterally
altered 	the workload of counselors, 	librarians, 	and nurses 	and
changed certain coaching 	stipends. 	Thus, 	the charge alleged
that 	the 	District had 	refused 	to bargain the 	impact 	and
implementation of 	the 	layoffs 	and had 	taken 	unilateral 	action
to 	implement 	the 	layoff which rendered 	negotiations 	futile. 	In
addition, 	the Association 	requested 	that 	the District 	cease 	and
desist 	from 	taking 	unilateral 	action 	and 	rescind 	all 	its 	past
unilateral actions. 	Also, 	the Association notes 	that attached
to 	the charge were 	the minutes 	of the Mt. 	Diablo school board
meeting 	for February 	5, 	1980, 	in which 	the 	school board 	took
formal action to 	increase 	counselor caseload. 	Thus, 	the
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Association claims 	that 	"these allegations, 	taken together, 	put
the District 	on notice 	that 	it was 	being charged 	for 	unilateral
actions 	related 	to the 	impact 	and 	implementation 	of 	the 	layoff
decision."
The Association 	further 	contends 	that, 	despite 	the 	fact
that 	it 	presented evidence 	concerning 	these 	unilateral 	changes,
at 	no 	stage 	in the 	proceedings 	did the 	District 	ever 	assert
that 	such 	conduct 	had 	not 	been 	properly 	charged.
Finally, 	the Association contends 	that 	even 	if 	it did not
formally allege these 	violations, 	the Board erred, 	as 	a matter
of 	law, 	in limiting its 	review of Unalleged violations 	to
conduct which occurred 	prior 	to the 	filing of 	the 	charge. 	In
support 	of 	this 	contention, 	the Association argues 	that 	the
federal 	courts 	and 	the National 	Labor 	Relations 	Board 	(NLRB)
have 	held 	that 	Unalleged 	post-complaint 	conduct 	can 	be 	reviewed
as 	long as 	the 	issues 	involved have 	been fully litigated.
Curtiss-Wright Corp. v. 	NLRB 	(3d Cir., 	1965) 	347 F.2d 	61 	[59
LRRM 2433, 	2440-2442]. 	Since, 	in this case, the Unalleged
violations 	were 	intimately related 	to the 	subject 	matter 	of 	the
complaint, 	were fully litigated, 	and the 	parties had the
opportunity to cross-examine witnesses, 	the 	Board 	should have
considered 	the 	issues. 	Santa Clara Unified School 	District
(9/26/79) 	PERB Decision No. 	104; 	Belridge School District
(12/31/80) 	PERB Decision No. 157.
Essentially, 	the Association's argument 	is 	twofold. 	First,
it 	is 	arguing that 	its 	unfair practice charge did, 	in fact,
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properly allege 	that 	increases 	occurred 	in 	the 	workload 	of
employees 	not 	subject 	to layoff and, 	second, 	that, 	even 	if 	that
conduct 	was 	not 	specifically alleged, 	the 	Board 	should have
considered 	the 	issue 	as 	an 	Unalleged 	violation.
As 	to the 	first 	of 	the Association's 	contentions, 	we find
that 	it 	is a least partially correct. 	In Anaheim Union High
School District 	(3/26/82) 	PERB Decision No. 	201, 	at p. 	10, 	the
Board 	indicated 	that 	a 	unilateral 	action occurred 	at 	the 	time
the 	governing board 	passed 	a 	formal 	resolution, 	even though the
change 	was 	to have 	a delayed 	implementation date. 	See 	also Rio
Hondo Community College District 	(3/8/83) 	PERB Decision
No. 	292. 	The record is clear 	that 	in its 	resolutions 	of
February 5 and 	6, 	1980, 	the Mt. 	Diablo school board 	voted to
increase 	the 	student/counselor 	ratio to 1 	counselor 	for 	every
425 students, 	thus 	eliminating 13.7 counselor 	positions. 	(See
Decision p. 	8, 	fn 	5.) 	These resolutions, 	though calling for 	a
decrease 	in library and nursing staffs, 	do not 	specifically
indicate 	that 	an 	increase 	in workload would occur 	for 	the
remaining 	employees. 	Inasmuch as 	the minutes 	of 	the 	school
board meetings 	were 	attached 	to the 	unfair practice 	charge, 	our
finding with respect 	to the 	counselors, 	that 	an 	increase 	in
caseload was 	never 	alleged, 	was 	an 	error. 	We 	shall 	consider
the 	substantive 	issue raised by this 	allegation, 	infra.
-
The 	underlying Decision, 	however, 	correctly states 	that 	no
independent 	violation 	of 	the Act 	was 	alleged 	concerning 	the
12

increase 	in 	caseload 	of 	librarians 	and nurses 	and 	the 	change 	in
coaching stipends. 	Therefore, 	we must decide whether 	our
determination 	in 	the 	underlying Decision, 	that 	we would 	not
extend 	the 	"Unalleged 	violation" 	rule 	to 	conduct 	which occurred
after 	the 	charge was 	filed, 	is 	correct 	as 	a matter 	of 	law.
In Santa Clara Unified School 	District, 	supra, 	the Board
adopted 	the 	standard 	followed 	by 	the NLRB and 	the 	federal
courts 	for 	reviewing Unalleged violations. 	Thus, 	the Board
will 	consider 	Unalleged violations 	where: 	(1) 	the 	Unalleged
violation 	is 	related 	to the 	subject 	matter 	of 	the 	complaint;
(2) 	the allegedly unlawful 	conduct 	is 	part of 	the same 	course
of 	action; 	and 	(3) 	the 	Unalleged violation is 	fully litigated
(i.e. 	the 	parties have had an opportunity to examine 	and
cross-examine witnesses 	and 	introduce 	evidence). 	This 	rule has
been 	followed by 	the 	Board 	in 	numerous 	cases 	since 	Santa
Clara6 and 	continues 	to be 	the 	rule 	followed by 	the NLRB and
the 	federal 	courts.7
6See 	Belridge, 	supra; 	Sacramento City Unified School
District (6/28/82) PERB Decision N O . 216; San Ramon Valley
Unified "School District 	(8/9/82) 	PERB Decision No. 	230; 	North
Sacramento School District 	(12/20/82) 	PERB Decision No. 	264;
Modesto City Schools, 	supra; 	Rio Hondo Community College
District PERB Decision No. 	292, 	supra; 	The Regents of the
University of California 	(UCLA) 	(12/21/82) 	PERB Decision
No. 	2 6 7 H .
7 See, 	e.g. 	Southwestern Bell Telephone Co. 	(1978) 	237
NLRB No. 	19 	[99 LRRM 1012J; 	Holly Manor Nursing Home 	(1978) 	235
NLRB No. 	56; NLRB v. 	Olympic Medical Corp. 	(9th Cir. 	1979)
F.2d 	[102 LRRM 2904]; Multi-Medical Convalescent Center
(1976) 	225 	NLRB No. 	56 	[93 	LRRM 1170J; 	Glasgow 	Industries
(1974) 	210 NLRB No. 	22 [86 LRRM 1219].
13

Although 	the 	Board was 	correct 	in 	stating 	that 	we 	have
never 	extended 	the 	Unalleged 	violation 	rule 	so as 	to base 	a
violation on 	conduct 	which 	arose 	after 	the 	filing 	of 	a 	charge,
the NLRB and 	the 	federal 	courts 	have 	entertained 	Unalleged
violations 	in such circumstances. 	In Curtiss-Wright, 	supra,
cited 	by the 	Association 	in 	support 	of 	its 	reconsideration
request, 	the Third Circuit Court 	rejected 	an 	employer's
argument 	that 	it was 	denied due 	process 	when 	an NLRB 	trial
examiner 	based 	his 	finding 	of 	a 	violation on 	conduct 	which
occurred after 	the 	complaint 	was 	filed. 	Noting that 	the 	issue
was 	fully litigated 	during 	the 	course 	of 	the 	hearing 	so 	that
the 	employer 	was 	on notice of 	the 	charges before 	it, 	the Court
rejected 	as 	"mechanistic" 	the 	employer's 	contention that 	the
complaint 	needed 	to have 	been 	formally amended 	to satisfy due
process 	considerations. 	As 	the Court 	stated:
Absent 	particularity of pleadings, 	the
conduct 	of a party [at 	the hearing] may
readily be 	tantamount 	to a 	submission 	to
adjudication and, 	especially in an
administrative 	proceeding, 	such 	adjudication
may be 	based on 	facts 	arising 	subsequent 	to,
as well 	as prior, 	to the 	filing of 	those
pleadings. 	Although 	it may be 	desirable to
formally conform 	the 	proof 	to the 	pleadings,
in 	the 	light 	of 	the 	above 	considerations 	we
do 	not 	feel 	it 	necessary to rule 	that 	such
failure 	should 	here 	affect 	the
administrative 	disposition of 	the
substantive 	issues. 	We 	thus 	see no merit 	to
the Employer 	position that 	facts 	arising
subsequent 	to the 	filing of 	the 	amended
complaint 	may not here 	serve 	as 	a basis 	for
the 	determination 	of 	an 	unfair 	labor
practice.
Curtiss-Wright, supra,
59 LRRM at 	2441
14

A review 	of 	numerous 	NLRB and 	federal 	court 	cases 	dealing
with 	Unalleged 	violations 	supports 	the Association's 	contention
that 	the only 	significant 	questions 	in 	assessing 	whether 	to
make 	legal 	findings based 	on Unalleged 	conduct 	is 	whether 	the
conduct 	is 	related 	to the 	underlying 	charge 	and 	the 	issue was
"fully and 	fairly litigated" 	at 	the hearing. 	See, 	e.g. 	NLRB v.
Olympic Medical Corp., 	supra, 	citing Frito Co. 	v. 	NLRB (9th
Cir. 	1964) 	330 	F.2d 	458 	[59 	LRRM 	2933].
Thus, 	we 	find 	that 	the 	Board erred in stating 	that 	it 	will
not 	extend 	its 	review 	of 	Unalleged 	violations 	to post-complaint
conduct.
In this case, 	it 	is quite clear 	that 	the 	issue of 	librarian
caseload 	relates 	to 	the 	underlying 	charge 	and was 	fully and
fairly 	litigated 	in the 	course 	of 	the 	hearing.8 The
Association 	introduced 	several 	librarian 	witnesses 	to 	testify
concerning 	the 	effect 	of 	the 	District's 	layoff 	decision on
their 	workload. 	The District 	had 	the 	opportunity to
cross-examine witnesses 	and, 	with respect 	to several 	witnesses,
exercised 	that 	right. 	The District 	raised no due 	process
objection to the 	introduction of 	this 	evidence 	at 	the hearing
8With 	respect 	to the 	issue 	of 	a 	change 	in nurse workload,
the Association 	introduced only documentary evidence which, 	in
the 	underlying Decision, 	we 	found 	to be 	insufficient 	to 	support
a 	finding 	of 	a 	change 	in workload. 	We 	stand by that
determination. 	Similarly, 	the Association 	introduced
insufficient 	evidence 	to 	establish 	that 	any loss 	of 	coaching
stipends 	was 	due 	to a unilateral 	change 	in coaching assignment
policy.
15

nor 	did 	it 	raise 	such an objection in 	its 	exceptions 	brief
before 	the 	Board.
Thus, 	we grant 	reconsideration to determine: 	(1) 	whether
the workload of 	counselors 	and librarians 	is 	negotiable; 	and
(2) 	if 	so, 	whether 	the District 	unilaterally altered the
workload of 	these 	employees 	in 	violation of 	the Act.
5. 	Unilateral Change 	of Workload
In Davis Joint Unified School District 	(8/2/84) 	PERB
Decision No. 	393, 	the Board, 	applying the test set 	forth in
Anaheim Union High School District 	(10/28/81) 	PERB Decision
No. 	177 	for 	determining the 	negotiability of bargaining
subjects 	not 	specifically enumerated 	in 	section 	3543.2,
determined that 	"workload," 	that 	is, 	the 	quantum of 	work to be
completed during the workday, 	is negotiable. 	In that 	case, 	the
Board 	found 	that 	the 	caseload 	of 	counselors 	expressed 	the
amount 	of 	work 	that 	those 	employees 	were 	expected 	to 	perform
during the workday, 	and as such, 	was 	negotiable. 	In this case,
the 	Board must 	assess 	not 	only an 	alleged 	unilateral 	change 	in
the workload of counselors, 	but 	of 	librarians 	as well.
The Davis 	case 	involved 	the 	broad 	question of 	whether
workload as 	a 	subject 	of bargaining 	is 	negotiable during
regular 	contract 	negotiations. 	In this 	case, 	we 	are faced with
the 	question of 	whether 	the 	District 	made 	an unlawful
unilateral 	change 	in the workload 	of 	counselors 	and
librarians. 	In such a 	case, 	the 	charging party must present
sufficient 	evidence 	to 	establish that: 	(1) 	by contract 	or 	past
16

practice, 	there 	existed a 	quantifiable measure 	of 	employee
workload, 	whether 	expressed as 	a 	"caseload" 	or by some other
means 	of 	determining the 	expected level 	of 	services 	to be
delivered during the workday; 	and 	(2) 	that 	the District
unilaterally 	increased 	the 	workload 	without 	affording 	the
exclusive 	representative 	notice 	and 	an 	opportunity to
negotiate.
Applying this 	test 	to the 	facts 	in this 	case, 	did the
District 	unlawfully alter 	the workload 	of 	counselors 	and
librarians 	in the 	fall 	of 	1980?
Librarians;
In 1979-80, 	the District 	employed 19 librarians. 	After 	the
layoff, 	only 15 librarians were left 	to service the District's
elementary school 	libraries.
The 	only witness 	who 	testified 	concerning 	the 	workload,
duties 	and 	impact 	of 	the 	layoff 	of 	the 	remaining librarians 	was
Virginia Jouris. 	She 	testified that, 	prior to the 	layoff, 	two
librarians 	were 	assigned 	to work 	at 	one 	elementary school 	each,
and 	the 	remaining 	librarians 	were 	assigned 	to work 	at 	two
schools each. 	In the fall 	of 1980, 	seven librarians who had
formerly 	serviced 	two 	schools 	each 	were 	assigned 	to 	service
three 	schools 	each. 	Jouris' 	testimony is 	corroborated by the
District's 	assignment 	sheets 	for 	the 	1978-79 and 	1979-80 	school
years.
Jouris 	testified at 	length concerning 	the 	duties 	of
librarians. 	She 	testified 	that 	librarians 	are 	responsible 	for
17

providing 	individual 	assistance 	to 	teachers 	in 	the 	development
of 	class 	projects, 	developing library skills programs 	for
students, 	and training volunteers. 	In the 	course of 	their
duties, 	librarians 	regularly provide bibliographies 	for
teachers, 	students, 	and parents. 	In addition to their resource
function, 	librarians have 	overall 	responsibility for
maintaining 	the 	libraries 	they 	are 	assigned 	to 	service.
Jouris 	testified that 	for 	the 	previous 	10 years, 	she had
serviced 	two 	elementary school 	libraries, 	each 	with
approximately 	8,000 books 	and other 	materials. 	As 	a 	result 	of
the 	reduction in the number 	of librarians, 	she was 	assigned
responsibility for 	an 	additional 	school. 	This 	increased 	the
number 	of 	teachers 	to whom 	she was 	required 	to provide 	library
services 	from 	36 or 	37 	in 1979-80 to 	58 in 1980-81.
Jouris 	testified 	that 	these 	added 	responsibilities
significantly 	increased her 	overall 	hours 	of 	employment 	and
that, 	as a result 	of the 	increase 	in her 	assigned duties, 	she
could not 	complete her 	assigned work within 	the 	normal
7:15-2:45 	workday.
The 	record reflects, 	and the District does 	not 	deny, 	that
there has 	been a 	past 	practice 	of 	determining 	the workload 	of
librarians 	based 	upon 	the 	number 	of 	schools 	which 	they are
assigned 	to 	service. 	While 	the level 	and nature 	of 	the 	service
to be provided at 	each 	school 	site was, 	to some extent, 	left to
the 	individual 	judgment 	of 	the librarians 	concerned, 	there 	is
18

no 	question 	that 	at 	each 	school 	librarians 	were 	required 	to
maintain the 	collection 	and 	provide 	resource 	services 	to
students, 	teachers, 	and parents. 	Thus, 	as the number of
libraries 	which 	librarians 	were 	required 	to 	service 	increased,
the workload 	of 	librarians 	concomitantly increased: 	more
libraries 	to service meant 	more 	books 	to order 	and more
teachers, 	students, 	and parents to work with.
As 	a result 	of 	the District's actions, 	the 	librarians 	found
themselves 	in 	the 	position of 	either 	working additional 	hours
beyond 	their 	required workday or 	reducing 	the 	level 	of 	service
which 	they had 	previously delivered 	to 	the 	public. 	The 	record
reflects 	that 	the 	District 	made 	no 	effort 	to alter 	the 	nature
of 	library services 	so 	as 	to prevent 	the workload of 	librarians
from 	increasing as 	a 	result 	of 	their 	assignment 	to additional
schools. 	Thus, 	the librarians were the victims 	of a classic
"speedup" 	in their work assignment.
In sum, 	we 	conclude 	that 	the District's 	unilateral 	increase
of 	the 	workload of 	librarians 	in the 	fall 	of 	1980 breached 	its
duty to negotiate 	in 	good 	faith, 	and thereby 	violated
subsection 3543.5(c), 	and concurrently, 	subsections 	3543.5(a)
and 	(b). 	Accordingly, 	we shall order the District to restore
the 	status 	quo 	and 	to negotiate with 	the Association 	concerning
the 	change 	in librarian workload.
19

Counselors:
On February 5, 	1980, 	the District's governing board
formally 	resolved 	to 	reduce 	counseling 	services 	and 	to 	increase
counselor 	caseload 	for 	the 	remaining counselors 	to 425 	students,
Indeed, 	at 	the February 	5, 	1980 meeting the District
further 	resolved 	that
[a]ny action of 	this Board 	at 	its 	meeting of
February 	5, 	1980, 	or any extension thereof,
which 	impacts 	upon 	any existing 	Board 	policy
shall 	be 	considered 	and 	recorded 	as 	a
properly executed 	modification 	of 	that
policy. 	(Emphasis 	added.)
As a result 	of 	this action, 	counselor caseload was, 	in
fact, 	increased in the fall of 1980. 	For example, 	at the
District's 	Clayton Valley 	School 	the 	authorized 	counselor
caseload in 1979-80 was 	355 students; 	in 1980-81 	that 	caseload
was 	increased to 444 students. 	At College Park School, 	the
caseload was 	increased 	from 	294 to 	426 students. 	At Concord
High School, 	the 	counselor 	caseload was 	increased 	from 	263 	to
43 0 students. 	At Mt. 	Diablo High School, 	the caseload was
increased 	from 	270 to 440 students.
Arlette 	Butler 	is 	a guidance 	counselor 	at Mt. 	Diablo High
School, 	a position which 	she has 	occupied 	for 	approximately
10 years. 	Prior to the fall 	of 1980, Mt. 	Diablo High School
utilized 	a 	system 	of 	counseling known 	as 	the 	"global 	counseling
model." 	Under 	this model, 	counselors 	are responsible 	for
20

providing 	total 	counseling 	services 	to 	the 	students 	they are
assigned 	to counsel. 	This would 	include 	individual 	counseling
if such counseling were required. 	In addition, 	counselors were
responsible for 	cases 	where 	"major" 	forms of discipline, 	such
as 	suspension or expulsion, 	was 	required. 	They were also
required 	to deal 	directly with parents 	and 	teachers.
On August 18, 	1980, 	Clark Brown, 	the Director of Pupil
Personnel 	Services 	and Ralph 	Belluomini, 	the Director 	of
Secondary Curriculum, 	sent 	out 	a memorandum 	to District
employees 	entitled 	"Counselor Duties 	for 	1980-81." 	This
document states, 	in pertinent part:
The 	following 	items 	will 	provide 	the 	basis
for 	determining how 	counseling 	services 	will
be 	provided at 	the 	secondary schools 	during
the 	coming school 	year:
2. 	The 	existing 	job description for
counselors 	is 	satisfactory for 	defining 	the
role of high school 	counselors. 	There 	is 	no
need 	for 	revision.
3. 	High school 	counseling services 	are 	to
return to the 	pattern 	that 	was 	utilized
prior 	to 	the 	time 	when 	vice 	principal
allocations 	were 	exchanged 	for 	additional
counselors 	and 	global 	counseling was
initiated. 	In the 	future, 	"Global
Counseling" 	will 	not 	be 	practiced by
counselors. 	Major 	discipline problems,
especially 	those 	that 	could 	lead 	to
suspension, 	shall 	not be 	a counselor
responsibility. This 	level 	of 	discipline
shall 	be 	the responsibility of 	the
administration.
21
• 	• 	•
• 	• 	•

6. 	It 	is 	not expected 	that 	the return to
established basic 	formula 	for 	assignment 	of
high school 	counselors 	will 	require 	any
increase 	in work-hours 	for 	counselors 	beyond
current 	practice.
In addition, 	the Association 	introduced 	into evidence 	the
Concord High School 	"Daily Bulletin" 	for September 3 0, 	1980.
This 	document 	is 	published 	by 	the 	District 	to 	inform 	students
and 	faculty of 	important 	events 	at Concord High School. 	The
document 	states:
Any of Mrs. 	Butler's Seniors 	who are
planning 	to 	attend a 	4 year 	college 	should
attend 	a 	meeting 	in 	B-l 	during 	3rd 	period on
Wed., 	Oct. 	1. 	Individual counseling
appointments 	for 	college 	planning will 	not
be 	made 	this 	year 	due 	to 	the 	increased
counseling 	load.
Butler testified that, 	in addition to this memorandum, 	there
was a meeting at Mt. 	Diablo High School 	with Mr. 	Erwin, 	the
Head Vice-Principal, 	who 	explained 	that 	counselors 	would no
longer 	be 	able 	to 	do 	individual 	counseling but 	would have 	to
shift 	to group counseling. 	She 	also testified that 	counselors
were 	no 	longer 	required 	to 	perform 	campus 	supervision 	duties
during the 	15-minute 	"brunch" 	break 	each 	day.
Butler 	testified 	that 	she had 	spent 	most 	of 	the 	1980-81
school year 	thus 	far making program changes 	for 	students, 	but
this 	was 	fairly typical 	of 	the 	first 	few weeks 	of 	each 	school
year. 	Nevertheless, 	in the 	past 	she had made 	approximately 100
program changes 	for 	the whole 	semester 	and thus 	far, 	during the
1980-81 	school 	year, 	she had already made nearly 	200 program
changes.
22

Butler 	testified 	that 	her 	normal 	workday 	is 	from 	7:30 a.m.
until 	2:35 p.m. 	She 	stated 	that 	in the 	past 	she 	had worked
approximately 	5 hours 	a week beyond 	the 	end 	of 	the work day and
that, 	as 	a result 	of 	the 	increase 	in her 	caseload, 	she was
working 	approximately 	7.5 hours 	per 	week 	beyond 	the 	normal
workday.
On cross-examination, 	Butler 	admitted 	that 	she had 	not
complained 	to 	any supervisor 	about 	her 	increase 	in work hours.
She 	also admitted 	that 	she 	had 	never 	been 	officially required
to 	spend 	any hours 	beyond 	the 	official 	7:30 to 	2:35 workday.
Nevertheless, 	she 	also testified that 	she 	could not 	complete her
required work during 	the 	normal 	school 	day.
John Hartman, 	another 	counselor 	employed at Mt. 	Diablo and
Concord High Schools, 	also 	testified 	concerning 	the 	impact 	of
the 	increase 	in counselor 	caseload. 	He testified that, 	in the
past, 	he 	had worked 	additional 	hours 	beyond 	the 	required 	7:30
to 	2:35 workday. 	He testified that 	he 	worked approximately five
hours 	a week 	after 	school 	because he 	"found 	it 	easier 	to do
some 	of 	my paperwork when 	students 	were 	not 	knocking on my
door." 	Thus 	far, 	in the 1980-81 	school year, 	he was working an
average 	of 	10 hours 	per 	week beyond 	the 	required workday. 	He
testified 	that most 	of 	this 	extra work 	time 	is 	now 	spent
"answering parents' 	phone 	calls 	and 	talking with 	them on the
phone 	[and] working on program changes 	so I 	can get 	the kids 	in
the 	classes 	before 	they've 	missed 	too much of 	the 	class 	to hurt
23

them." 	He 	also 	testified 	that 	this 	increase 	in workload was
typical 	of 	the 	first 	few weeks 	of 	school 	and was 	generally
temporary. 	Moreover, 	like 	Butler, 	Hartman testified that
counselors 	were 	informed 	that 	they were 	no 	longer 	to handle
major 	discipline 	problems.
There is no question, 	that, 	at 	its February 5, 	1980
meeting, 	the 	governing 	board 	unilaterally increased 	the
caseload of 	those 	counselors 	not 	subject 	to the 	layoff. 	As
noted above, 	in Anaheim Union High School District, 	supra, 	PERB
Decision No. 	201, 	the 	Board 	found that 	a unilateral 	action 	is
effective 	on 	the 	date 	the 	governing 	board 	issues 	its 	formal
resolution, 	notwithstanding the 	fact 	the 	policy changes 	may
have 	a later 	implementation date. 	Thus, 	the District's duty to
negotiate, 	and 	its 	breach of 	that 	duty, 	arose at 	the 	date 	it
took formal board action, 	on February 5, 	1980, 	to increase
counselor workload. 	It 	is 	also undisputed 	that 	there 	existed 	a
long-standing 	past 	practice 	in 	the District 	of 	determining
counselor 	workload 	based 	on 	a 	caseload 	system.
Therefore, 	since 	the 	Board has 	found 	counselor 	caseload
negotiable 	and 	it 	is 	undisputed 	that 	the 	District 	unilaterally
increased 	the 	caseload 	of 	counselors, 	we 	find 	its 	conduct 	to be
a breach 	of 	its 	duty to 	negotiate 	in good 	faith 	in violation of
subsections 3543.5(a), 	(b), and (c) of the Act.
However, 	we 	find 	that 	the 	District's 	later 	modification of
the 	counseling 	system acted 	to 	eliminate 	the 	impact 	of 	the
24

unilateral 	change on the workload of 	counselors 	and, 	therefore,
ameliorated 	the 	damage 	done 	by 	its 	earlier 	unlawful 	conduct.
Accordingly, 	we 	shall 	order 	the District 	to 	cease 	and 	desist
from making unilateral 	changes 	in workload and 	to post 	the
customary notice 	to 	employees.
6. 	The Remedy
In 	fashioning a remedy for 	the 	District's 	violations, 	the
Board 	found 	that, 	in order 	to 	assure meaningful 	negotiations,
it was 	appropriate 	to order 	the District 	to pay lost 	wages 	to
the 	laid-off 	employees 	for 	the 	period 	that 	negotiations
occurred. 	This 	limited 	backpay 	remedy was 	patterned 	after 	that
in use 	in the 	federal 	courts. 	See, 	e.g. 	NLRB v. 	Transmarine
Navigation Corp. 	(9th Cir., 	1967) 	380 F.2d 933 [65 LRRM 2861].
The 	Board 	rejected 	the Association's 	claim 	that 	the 	laid-off
employees 	should be 	reinstated 	and 	made 	whole 	for 	their 	losses,
since 	the 	decision to lay 	off 	is 	nonnegotiable.
The Association 	requests 	reconsideration of 	the 	remedy,
reasserting 	its 	contention 	that 	the 	laid-off 	employees 	should
be 	reinstated with 	full back pay. 	In support 	of 	its 	request,
it 	contends 	that 	the 	federal 	cases 	involving limited 	backpay
awards 	concerned plant 	closures, 	which are 	distinguishable 	from
layoffs. 	Unlike layoffs, 	after a plant 	is 	closed, 	there are
"no 	jobs 	remain[ing] 	to which any employees 	could be
reinstated."
25

This 	argument 	is 	a mere 	reassertion of 	the Association's
claim 	that 	the 	laid-off 	employees 	are 	entitled 	to 	receive 	a
full make-whole remedy. 	In the 	underlying Decision, 	the Board
rejected 	this 	contention because 	the 	District 	was 	legally
entitled to make 	the decision to lay off 	unilaterally, 	and was
only required 	to negotiate 	the 	effects 	of 	that 	decision. 	As
such, 	it was 	inappropriate 	to order 	the laid-off 	employees
reinstated, 	since 	they would have 	been 	terminated 	even 	if 	the
employer had acted lawfully. 	Thus, 	the 	Board's Order 	is 	fully
consistent 	with 	the 	rationale 	underlying 	the 	limited 	backpay
awards 	in the 	federal 	plant 	closure 	cases. 	Inasmuch as 	the
Board has 	broad 	statutory authority to 	fashion 	remedies 	(see
subsection 	3541.5(c)), 	we 	find no basis 	to justify granting
reconsideration of 	this portion of 	the 	remedy.
7. 	Request For Oral Argument
Pursuant 	to rule 	32315,9 the Association 	requests 	that
oral 	argument 	be 	set 	to 	consider 	the 	issues 	raised 	in 	its
request 	for 	reconsideration.
9PERB 	rule 	32315 provides:
A party desiring 	to 	argue 	orally 	before 	the
Board 	itself 	regarding the 	exceptions 	to the
proposed decision shall 	file, 	with the
statement 	of 	exceptions 	or 	the 	response 	to
the statement 	of exceptions, 	a written
request 	stating 	the 	reasons 	for 	the
request. 	Upon such request 	or 	its 	own
motion 	the 	Board 	itself 	may direct 	oral
argument.
26

In the 	underlying Decision, 	the 	Board denied 	the
Association's 	request 	for 	oral 	argument, 	finding the 	record was
fully adequate 	to 	apprise 	the 	Board 	of 	the 	issues before 	it.
We 	find 	no 	need 	to grant 	that 	request 	now.
ORDER
The Order 	in Mt. 	Diablo Unified School 	District 	(12/30/83)
PERB Decision No. 	373 is AMENDED to read as 	follows:
Upon the 	foregoing findings 	of 	fact, 	conclusions 	of 	law,
and 	the 	entire record 	in this 	case, 	it 	is 	found 	that 	the
Mt. 	Diablo Unified School 	District 	violated
subsections 3543.5(a), 	(b), and (c) of the Educational
Employment 	Relations Act. 	Pursuant 	to Government 	Code
subsection 3541.5(c), 	it is hereby ORDERED that the District,
its 	governing board, 	and 	its 	representatives 	shall:
A. 	CEASE AND 	DESIST FROM:
1. 	Failing and 	refusing to meet 	and 	negotiate 	in
good faith with the Mt. 	Diablo Teachers Association, 	CTA/NEA,
concerning 	the 	impact 	of 	the 	decision 	to 	lay off 	certificated
employees 	and 	unilaterally 	changing 	the 	workload 	of 	counselors
and 	librarians 	not 	subject 	to the 	layoff.
2. 	Denying the Mt. 	Diablo Teachers Association,
CTA/NEA, 	the 	right 	to represent 	its 	members by failing and
refusing 	to meet 	and 	negotiate 	in 	good 	faith over 	the 	effects
of 	the 	decision 	to 	lay off 	certificated 	employees 	and by
27

unilaterally 	changing 	the 	workload 	of 	counselors 	and 	librarians
not 	subject 	to the 	layoff.
3. 	Interfering with employees 	in the 	exercise 	of
rights 	guaranteed 	to 	them by 	the Educational 	Employment
Relations Act 	by 	failing and 	refusing 	to meet 	and 	negotiate 	in
good 	faith over 	the 	effects 	of 	the 	decision to lay off
certificated 	employees 	and 	by 	unilaterally changing 	the
workload 	of 	counselors 	and librarians 	not 	subject 	to 	the 	layoff.
B. 	TAKE 	THE 	FOLLOWING ACTIONS 	DESIGNED TO EFFECTUATE 	THE
POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT 	RELATIONS ACT:
1. 	Upon request, 	meet 	and negotiate with the
Mt. 	Diablo Teachers Association, 	CTA/NEA, 	within thirty-five
(35) 	days 	after 	this Decision 	is 	no longer 	subject 	to
reconsideration, 	regarding 	the 	implementation 	of 	layoff 	and 	the
following 	specific 	negotiating proposals 	related 	to 	the 	effects
of 	layoffs 	which 	the Board has 	found to be 	within the 	scope 	of
representation: 	paragraphs 	1, 	3, 	and 	4 of the 	"Impact 	of
Layoff" 	proposal; 	the 	"Counselor Workload" 	proposal 	in its
entirety? 	paragraph 	4 of 	the 	"Librarian Working Conditions"
proposal.
2. 	Pay to the 	employees 	laid off 	a 	sum 	equal 	to
their 	wages 	at 	the 	time 	they were 	laid 	off 	from 	the 	first 	day
the Association 	requests 	to bargain concerning the 	subjects 	of
bargaining enumerated 	in part 	B(l) 	of 	this Order 	until
occurrence 	of 	the 	earliest 	of 	the 	following conditions: 	(1)
the date the parties reach agreement; 	(2) 	the date the
28

statutory impasse procedure 	is exhausted; 	(3) 	the 	failure 	of
the Association 	to request 	negotiations 	within thirty-five 	(35)
days 	of 	service of 	this Decision; 	or 	(4) 	the subsequent 	failure
of 	the Association to negotiate 	in good 	faith.
3. 	Restore 	the workload of 	librarians 	as 	it 	existed
prior 	to the 	fall 	of 	1980 and meet 	and 	negotiate with the 	Mt.
Diablo Teachers Association, 	CTA/NEA, 	concerning the workload
of 	those 	librarians. 	However, 	the 	status quo ante with regard
to librarian workload need not be 	restored 	if 	the 	parties, 	on
their own 	initiative, 	have 	subsequently reached agreement 	or
negotiated 	in 	good 	faith 	through 	completion 	of 	the 	statutory
impasse 	procedure 	in negotiations 	concerning 	the 	workload 	of
librarians.
-
4. 	Within 35 days 	after 	this Decision 	is no 	longer
subject 	to reconsideration, 	post 	at 	all 	school 	sites 	and all
other 	work 	locations 	where 	notices 	to employees 	customarily are
placed, 	copies 	of 	the Notice 	attached 	as 	an Appendix hereto.
Such 	posting 	shall 	be 	maintained 	for 	a period 	of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be 	taken to
ensure that 	said Notices 	are not 	reduced 	in size, 	altered,
defaced 	or 	covered 	by any 	other material.
5. 	Notify the 	San Francisco Regional 	Director 	of 	the
Public Employment Relations Board, 	in writing, 	of 	the 	steps 	the
District 	has 	taken 	to 	comply herewith 	in accordance 	with her
instructions.
29

6. 	The 	unfair practice 	charge 	filed by the
Mt. 	Diablo Federation of Teachers, 	Local 1902, CFT/AFT,
AFL-CIO, 	in Case No. 	SF-CE-455 is DISMISSED.
7. 	The parties' request 	for 	oral 	argument 	pursuant
to PERB rule 	32315 	is 	DENIED.
This Order 	shall 	become 	effective 	immediately upon 	service
of 	a 	true 	copy 	thereof 	on 	the Mt. 	Diablo Unified School
District.
Member 	Burt 	joined 	in this Decision.
Chairperson Hesse's 	concurrence 	begins 	on 	page 	31.
Member 	Morgenstern's 	concurrence 	and dissent 	begins 	on page 	32,
30

Hesse, 	Chairperson, 	concurring: 	Although I 	concur with the
results 	in this case, 	I must disassociate myself 	from the
discussion 	concerning 	the caseload 	of 	non-teaching 	personnel.
As 	I 	noted 	in 	the dissent 	in Davis Joint Unified School
District 	(8/2/84) 	PERB Decision No. 	393, 	I do not find
caseload per 	se 	to be 	a 	subject within 	scope of bargaining.
-
Only when 	and 	if 	caseload 	impacts 	on 	an 	enumerated 	subject 	such
as hours does 	it become negotiable.
Notwithstanding my dissent 	in Davis, 	here I 	can concur with
the majority because 	the 	record 	reflects 	that 	the change 	in
librarian caseload resulted in an 	increase 	in hours. 	Thus, 	the
District was under 	a duty to negotiate 	the 	impact of 	changing
the number 	of 	schools 	serviced by 	the 	individual 	librarians.
Conversely, 	the counselor 	caseload here 	is not negotiable
because 	the 	record 	shows 	that 	the District made changes 	in 	the
type of 	service offered 	so 	that 	the 	increase 	in 	the 	number 	of
students 	per 	counselor 	did not affect 	the 	total number 	of 	hours
worked 	by 	the counselors.
Therefore, 	although 	I 	concur 	with 	the 	result reached by the
majority, 	I 	do so only because 	the 	record here supports a
finding 	of 	an 	impact on an enumerated 	subject, 	and not 	because
I 	believe caseload, 	in and of 	itself, 	is within the scope of
bargaining.
31

Morgenstern, 	Member, 	concurring and dissenting: 	The
disputes 	I 	had with 	the majority 	in 	the 	underlying decision
persist and, 	thus, 	I 	am prompted to submit this separate
response to CTA's 	reconsideration request.
I 	of course 	find merit 	in CTA's 	assertion 	that 	the
statutory language 	of Education Code 	section 44955 	directing
that 	the 	governing 	board 	determine 	the 	same-date-of-hire
criteria based 	"solely on 	the 	needs 	of 	the district and 	the
students" 	need not be read 	to remove 	this critical 	topic 	from
the collective 	bargaining 	process. 	By 	interpreting 	the 	Code
provision as a basis 	for denying EERA's guarantees, 	the
majority eschews 	the 	Board's 	standard, 	fully credited by 	the
California Supreme Court, 	that mandates 	supersession only where
the 	statutory language of 	the Education Code 	is cast as an
inflexible 	standard 	or 	an 	immutable 	provision.
,1 In 	order 	to
reach 	its decision, 	the majority must 	read 	into 	the Education
Code provision a conclusion that, 	as a matter 	of law, 	bilateral
decision-making cannot accommodate 	the 	needs 	of 	the 	District
and the students. 	I 	find no basis 	in the words of section
44955 	for 	that conclusion.
I 	am also at odds with 	the manner 	in which 	the majority
further 	obfuscates 	the central caseload 	issue by persisting 	in
its view that 	the unilateral change 	said to be 	the 	result of
1San 	Mateo City School District v. 	Public Employment
Relations Board 	(1983) 	33 Cal.3d 850 	[ 	Cal.Rptr. 	].
32

the 	layoff 	is 	something 	separate 	from the negotiable 	layoff
effect. 	As 	I plainly articulated 	in my dissent 	in 	the
underlying 	decision:
. 	. 	. 	the negotiable component of the layoff
decision is, by definition, 	that which
affects the wages, 	hours, 	and enumerated
terms and conditions of employment. 	What
the majority might 	envision as 	a 	separate
unilateral 	change 	is none other 	than 	the
demonstrable 	effect 	of management's 	decision
to lay off some of its workers. 	(P. 	78.)
The 	majority's 	lengthy discussion 	of 	Unalleged 	violations
in 	this 	reconsideration decision 	is 	an 	ill-concealed 	effort 	to
somehow reconcile 	this 	case with 	the conclusions 	enunciated 	in
the recent decision in Davis, 	supra. 	Unfortunately, 	however,
it fails 	to do so. 	Indeed, 	its detailed recitation of the
librarians' 	and counselors' 	hours would seem to be 	irrelevant
since, 	in Davis, 	the majority finds 	the subject of caseload 	to
be negotiable per 	se without any requirement 	that a
relationship to hours need be demonstrated. 	The 	lengthy
discussion here appears 	to be 	included 	for 	the purpose of
proving 	the very 	adverse 	impact which 	the majority 	finds
unnecessary in Davis.
Thus, 	in the instant case, 	I continue to maintain that the
negotiability of workload or 	caseload, 	whether 	the 	issue 	takes
the 	form of an 	initial bargaining proposal or 	a 	unilateral
change 	instituted by the employer, 	depends on a 	relationship
between caseload and wages, 	hours or 	other 	enumerated 	terms and
conditions of employment.
33

. .. .'	-
APPENDIX
NOTICE 	TO ALL 	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-452, 	in
which all parties had the 	right 	to participate, 	it has been
found 	that 	the Mt. 	Diablo Unified School 	District has 	violated
subsections 3543.5(a), 	(b), and (c) of the Educational
Employment 	Relations Act. 	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 	in
good 	faith with the Mt. 	Diablo Teachers Association, 	CTA/NEA,
concerning 	the 	impact 	of 	the 	decision 	to lay off 	certificated
employees 	and 	by unilaterally changing 	the 	workload 	of
counselors 	and librarians 	not 	subject 	to 	the layoff.
2. 	Denying the Mt. 	Diablo Teachers Association,
CTA/NEA, 	the 	right 	to 	represent 	its members by failing and
refusing 	to meet 	and negotiate 	in good 	faith over 	the 	effects
of 	the 	decision 	to lay 	off 	certificated 	employees 	and by
unilaterally changing 	the 	workload 	of 	counselors 	and 	librarians
not 	subject 	to 	the 	layoff.
3. 	Interfering with employees 	in the 	exercise of
rights 	guaranteed 	to 	them by the Educational 	Employment
Relations 	Act 	by 	failing and 	refusing 	to meet 	and 	negotiate 	in
good 	faith over 	the 	effects 	of 	the 	decision to lay off
certificated 	employees 	and 	by 	unilaterally changing 	the
workload of 	counselors 	and librarians 	not 	subject 	to 	the 	layoff.
B. 	TAKE 	THE 	FOLLOWING ACTIONS 	DESIGNED TO EFFECTUATE 	THE
POLICIES 	OF THE 	EDUCATIONAL EMPLOYMENT 	RELATIONS ACT:
1. 	Upon request, 	meet 	and negotiate with the
Mt. 	Diablo Teachers Association, 	CTA/NEA regarding the
implementation 	of 	layoff 	and 	the 	following 	specific 	negotiating
proposals 	related 	to 	the 	effects 	of 	layoffs 	which the 	Board has
found 	to be within 	the 	scope 	of 	representation: 	paragraphs 	1,
3, 	and 	4 of 	the 	"Impact 	of Layoff" 	proposal; 	the "Counselor
Workload" 	proposal 	in its 	entirety; 	paragraph 	4 of 	the
"Librarian Working Conditions" 	proposal.
2. 	Pay to the 	employees 	laid off 	a 	sum equal 	to
their 	wages 	at 	the 	time 	they were 	laid 	off 	from the 	first 	day

the Association 	requests 	to bargain concerning 	the 	subjects 	of
bargaining 	enumerated 	in 	part 	B(l) 	of PERB's Order 	until
occurrence 	of 	the 	earliest 	of 	the 	following conditions: 	(1)
the date the parties reach agreement; 	(2) 	the date the
statutory impasse procedure 	is exhausted; 	(3) 	the 	failure of
the Association 	to 	request 	negotiations 	within 	thirty-five 	(35)
days of 	service of PERB's Decision; 	or 	(4) 	the 	subsequent
failure 	of 	the Association to negotiate 	in 	good 	faith.
3. 	Restore 	the 	workload of 	librarians 	as 	it 	existed
prior 	to 	the 	fall 	of 	1980 and meet 	and 	negotiate 	with the Mt.
Diablo Teachers Association, 	CTA/NEA, 	concerning the workload
of 	those librarians. 	However, 	the 	status 	quo ante 	with regard
to 	librarian workload need 	not 	be 	restored 	if 	the 	parties, 	on
their 	own 	initiative, 	have 	subsequently reached 	agreement 	or
negotiated 	in good 	faith 	through 	completion of 	the 	statutory
impasse 	procedure 	in negotiations 	concerning 	the workload 	of
librarians.
Dated: 	MT. 	DIABLO UNIFIED SCHOOL 	DISTRICT
By
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE OF POSTING AND MUST NOT
BE DEFACED, 	ALTERED, 	REDUCED 	IN SIZE OR COVERED BY ANY OTHER
MATERIAL.
- -
22