Trustees of the California State University (PERB 2287H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA FACULTY ASSOCIATION,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No. LA-CE-1125-H
PERB Decision No. 2287-H
October 4, 2012
Appearances: Kathy Sheffield, Interim Director of Representation, for California Faculty
Association; California State University Office of the General Counsel by Donald A. Newman
and Marc D. Mootchnik, University Counsel, for Trustees of the California State University.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the California Faculty Association (CFA) of the Office of
General Counsel's dismissal of its unfair practice charge. The charge, as amended, alleged that
the Trustees of the California State University (CSU) implemented an executive order
regarding the provision of student mental health services without first bargaining over the
effects of the executive order on terms and conditions of employment including workload. 	The
charge alleged that by this conduct, CSU violated section 3 	1, subdivisions (a), (b) and 	of
the Higher Education Employer-Employee Relations Act 1 The Office of the
General Counsel dismissed the charge for failure to state a prima facie case.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

The Board has reviewed the entire record in this matter and given its full consideration
to the appeal and the response thereto. Based on our review, the Board reverses the dismissal
of
the charge and directs that a complaint be issued for the reasons discussed below.
SUMMARY OF FACTUAL ALLEGATIONS
CFA is the exclusive representative
of
a bargaining unit
of
approximately 23,000
faculty employees employed by CSU at its
23
campuses. The unit includes counselors in the
Student Services, Academic-Related (SSP, AR) classification series (counselors).
In early 2009, the CSU Office
of
the Chancellor created a Select Committee on Mental
Health to report on the appropriate level
of
mental health services necessary to address student
needs and to review and identify the resources necessary to provide those services. The Select
Committee presented its findings and recommendations to the CSU Board
of
Trustees at its
meeting
of
May 12, 2010. Subsequently, the CSU Office
of
the Chancellor formulated the
executive order discussed below.
Executive Order 1053: Policy on Student Mental Health
By e-mail
of
October 25,2010, CSU Senior Director
of
Collective Bargaining Bill
Candella (Candella) informed CF A Director
of
Representation Bernhard Rohrbacher
(Rohrbacher) that CSU desired to finalize an executive order concerning mental health services
for students within 30 days.2 Attached to the e-mail was the draft
of
the executive order
entitled "Draft Policy, Student Mental Health Services, California State University." It states
in pertinent part:
2 According to CSU' s position statement of January 12, 2011, "Mr. Candella did not
consider the subject matter of the Executive Order to be a mandatory subject of bargaining and
did not send the communication as an invitation to meet and confer." (Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M [PERB may consider
undisputed factual assertions provided by respondent].)
2

I. 	Purpose
This policy governs the provision of mental health
services to matriculated students in the California State
University (CSU) System. Regardless of where or how
these services are provided, the provision of services must
comply with the policies contained in this Executive
Order (EO) ....
II. 	Required Basic Services
... At a minimum, CSU campuses shall offer the
following basic services:
A. Counseling/Psychotherapy
B. 	Suicide and Personal Violence Services
C. 	Emergency/Crisis Services
D. Outreach
E. 	Mental Health Consultation
F. 	Referral Resources
Basic
IV. 	Augmented Services
Campuses may offer augmented mental health services
beyond the scope of basic services ....
3

A. The augmented services a campus may offer include
but are not limited to the following:
1. 	Specialty care appropriate to the mental health
needs of students.
2. 	Services to partners or family members of eligible
students.
3. 	Services to students of non-state-supported
programs of the university, such as those offered
through continuing education.
V. 	Training Programs
Campuses may provide practicum, internship, and
postdoctoral training programs ....
VI. 	Expectations and Qualifications of Mental Health
Professionals at CSU Campuses
A. Mental Health Clinicians
1. 	The CSU expects that mental health clinicians
shall spend at least 60% to 65% of their base time
providing direct services, which for the purposes
of this recommendation, shall include
individual/group counseling, intakes, assessment,
crisis intervention, and other clinical services
assigned.
Although these recommendations establish a
baseline or benchmark, adjustments to a mental
health clinician's direct clinical service
expectations may be necessary to accommodate
additional responsibilities, assignments, and the
academic calendar.
recommendations are not meant to
supersede the assignment provisions of Article 20
of the collective bargaining agreement, which
provide that final assignments shall be made by the
appropriate administrator after consultation with
the Counselor Faculty Unit Employee.
4

VII. 	Program Evaluation
A.
	Internal Program Evaluation and Review
B.
	External Program Review
Each campus mental health service program shall
undergo regular external review at least every five
years. This can be accomplished by maintaining
accreditation by the International Association
of
Counseling Services (IACS), Accreditation
Association
of
Ambulatory Health Care (AAAHC), or
another external accrediting group
....
VIII. 	Mental Health Records
(Draft Policy, Student Mental Health Services, California State University; italics added in
third paragraph under heading VI(A)(l) for point
of
comparison as discussed below.)
By e-mail
of
November
8,
2010, Rohrbacher requested to meet and confer regarding the
impact
of
the executive order on the counselors' terms and conditions
of
employment
including workload. The e-mail states:
CF A request [sic] to meet and confer about the impact on this
policy on the terms and conditions
of
counselors, including, but
not limited to, workload.
In this context, I note that while the policy pays lip-service to
Article 20, Workload,
of
	CBA, it also states that 'The CSU
expects that mental health clinicians shall spend at least 60% to
65% of their base time providing direct services, which for the
purposes
of
this recommendation, shall include individual/group
counseling, intakes, assessment, 	intervention, and other
clinical services assigned' (emphasis supplied). By contrast, the
'ACCREDITATION STANDARDS FOR UNIVERSITY AND
COLLEGE COUNSELING CENTERS' of the International
Association of Counseling Services, Inc, available at [website
URL omitted], state: 'Staff members should have a balanced
workload that affords time for all aspects of their professional
functioning. 	Direct service responsibilities such as intake,
5

individual and group counseling, and crisis intervention should
not exceed 65%
of
the workload on a continuing basis'
(emphasis supplied).
(Rohrbacher e-mail, Re: Mental Health Services, November
8,
2010 [bold in original].)
Without responding to CF
A's
request to meet and confer, CSU Chancellor Charles B.
Reed implemented Executive Order 1053 entitled Policy on Student Mental Health by sending
a memorandum to CSU Presidents on December
6,
2010.3 On December 10, 2010, Candella
sent Rohrbacher an e-mail asking "when would you be available to discuss these issues?" 	On
the same date, Rohrbacher responded by e-mail that CF A had filed an unfair practice charge
with PERB because CSU implemented the executive order without responding to a timely
request for effects bargaining. On December 20, 2010, Candella sent Rohrbacher an e-mail
acknowledging the PERB charge and expressing willingness to "discuss any concerns that
CFA may have in respect
of
this policy." On the same date, Rohrbacher responded by e-mail
that "CF A will be happy to bargain over the policy once the administration rescinds it to allow
for meaningful bargaining."
Article 20
of
the Collective Bargaining Agreement: 	Workload
CFA and CSU are parties to a collective bargaining agreement (CBA), which provides
in pertinent part:
Counselor Faculty Unit Employees: 	Assignment
of
Responsibility
20.11
The assignment of a CFUE may include but shall not be
limited to individual counseling, group counseling,
consultation and referral, intern training and supervision,
teaching, service on systemwide and campus committees
and task forces, and activities that foster professional
growth including creative activity and research. The
3 The executive order implemented on December 6, 2010, varies in substance from the
portions of the prior draft quoted above in one way. The executive order does not contain the
text shown in italics.
6

nature
of
such assignments shall correlate closely with
activities expected
of
CFUEs in order to qualify for
retention, tenure/permanency, and promotion, and after
tenure/permanency, activities expected
of
counselor
employees in order to maintain their roles as contributing
members
of
the campus community. Such assignments
shall be made by the appropriate administrator after
consultation with the CFUE.
20.15
The Assignment/Schedule
of
a full-time librarian or
counselor employee shall be an average
of
forty (40)
hours in a seven (7) day period
....
As alleged by CF A, for each hour
of
direct counseling services, counselors spend at
least 30 minutes on case management duties including assessment writing and completion
of
other paperwork. On average, a full eight-hour day
of
work includes at most five one-hour
sessions
of
direct counseling services, as the remaining three hours are reserved for case
management. 	In addition to direct counseling services and related case management, in order
to obtain tenure or promotion, counselors are required to engage in professional activities and
perform university and/or community service.4 In a typical week, these activities and services
break down as follows: 	(1) supervision
of
trainees and post-doctorals (one to four hours);
(2) practicum trainee teaching (one hour); (3) research and review ofliterature (one hour);
(4) mandatory team and individual case consultation (one to three hours); (5) mandatory staff
meetings (one to two hours); (6) committee work (one to three hours); campus outreach (one to
4 As alleged by CF A, these activities and services are required by campus policies
and/or are necessary for the professional performance of 	counseling 	way of
example, CF A submitted the Procedures and Criteria for Performance Review and Period
Evaluation for counselors at the San Bernardino campus. Under this policy, counselors are
evaluated for promotion and tenure in three areas: professional assignments, professional
growth, and service at the level of the academic rank to which the promotion is sought. To be
promoted or awarded tenure, the counselor must be judged "superior" in one area and
"competent" in the other two.
7

three hours); and (7) community service (one to three hours). Also in order to obtain tenure or
promotion, counselors are required to disseminate their research through publication
of
journal
articles or presentations at conferences, but the amount
of
time required to perform this activity
is difficult to quantify; most probationary and tenured counselors perform this work outside
their 40-hour work week.
As alleged by CFA, in terms
of
percentages, a counselor's typical 40-hour work week
can be broken down as follows:
50 percent: 	20 one-hour sessions
of
direct counseling services
30 percent:
	12
hours related case management
20 percent: 	8 hours additional professional activities and services
To comply with the 60 to
65
percent baseline/benchmark set forth in the executive order, a
counselor would be required to provide an additional four to six one-hour sessions
of
direct
counseling services per week. The amount
of
time spent on other required tasks, activities and
services cannot be reduced or eliminated to accommodate the increase in direct counseling
sessions. Therefore, in order to accommodate the increase, a counselor's work week under the
baseline/benchmark in the executive order would be extended from 40 hours per week to 44 to
46 hours per week. 5
THE DISMISSAL
The Office 	General Counsel determined that 	charge, as amended, did not
state a prima facie case because it did not allege facts demonstrating that the executive order
has an 	on the counselors' work hours. 	dismissal relied on language 	the
5 As factual support for these allegations, CF A submitted the declaration of Jeffrey
Andreas Tan, a counselor at the San Bernardino campus since 2008 and Chair of the Counselor
Caucus of the CF A. According to his declaration, as a counselor, he is familiar with the
typical workload of counselors and with the expectations for tenure and promotion at the
San Bernardino campus. As Chair, he is familiar with the typical workload of counselors and
with the expectations for tenure and promotion at the other CSU campuses.
8

CBA, which provides that counselors' assignments are made by the appropriate administrator
after consultation with the counselor and that counselors are not required to work more than
40-hours per week. The dismissal also relied on language in the executive order, which
provides that adjustments to the counselors' direct counseling services may be necessary to
accommodate the counselors' other responsibilities and that the executive order does not
supersede the CBA. Based thereon, the Office
of
the General Counsel concluded that the
charge is "speculative at best, and insufficient to support a violation."
CFA'S APPEAL
On appeal, CF A argues the following main points:
1.	
The Board needs to clarify the standard for determining what qualifies as a
negotiable effect
of
a non-negotiable decision. The element
of
"actual" impact does not mean
that the charging party has the burden to prove there has been a change, just that the impact on
terms and conditions are "reasonably foreseeable" or "prospective" and "causally related" to
the non-negotiable decision;
2.	
The Board must assume that the facts as alleged are true at this stage
of
the
proceedings;
3.	
Counselors currently spend 50 percent
of
their 40-hour work week on direct
counseling services. The executive order requires that they spend a minimum
of
60-65 percent
of
their 40-hour work week on direct counseling services. Therefore, the executive order has an
impact on workload, a negotiable subject, and is subject to effects bargaining; and
4. 	The effects of the executive order on workload are not rendered non-negotiable by
language in the executive order that allows for individual adjustments in assignments. Nor are
they rendered non-negotiable by language in the executive order stating that the executive
order does not supersede the CBA.
9

CSU' S RESPONSE
In response, CSU argues the following main points:
1.	
The executive order does not expressly mandate an increase in workload or hours,
nor does it supersede the CBA;
2.	
CF
A's
allegation that workload would increase from 50 percent to 60-65 percent is
legal argument, not fact, and need not be accepted by the Board as true; and
3. 	The Office
of
the General Counsel is correct that the effects
of
the executive order
on workload as identified by CF A are "speculative at best."
DISCUSSION
The sole issue in this case is whether CSU's decision to implement the executive order
gave rise to a duty to engage in effects bargaining upon CF
A's
timely demand. The essential
facts are not in dispute. CSU made a decision to implement the executive order governing
mental health services for students. CFA made a timely demand to bargain the effects
of
the
decision, specifically identifying workload as one such effect, prior to implementation. CSU
implemented the executive order without bargaining because it did not consider the subject
matter
of
the executive order to involve a mandatory subject
of
bargaining. For the reasons
explained below, the Board concludes that CSU had a duty to negotiate potential effects on
workload prior to implementation
of
the executive order.
Under HEERA, before implementing a non-negotiable decision, the parties must first
negotiate over effects that have an impact on matters within the scope
of
bargaining. (The
Regents
of
the University
of
California (Lawrence Livermore National Laboratory (1997)
PERB Decision No. 1221-H; Regents
of
the University ofCal(fornia (1987) PERB No. 640-H
(UC Regents).) 	The duty to bargain effects arises "when a firm decision is made." (Ibid.,
emphasis omitted; Mt. Diablo Unified School District (1983) PERB Decision No. 373

(Mt. Diablo).) Once a firm decision is made, an employer must provide the exclusive
representative with notice and a reasonable opportunity to negotiate prior to taking action that
affects matters within the scope
of
representation. (Mt. Diab
lo;
see also County
of
Riverside
(2010) PERB Decision No. 2097-M (County
of
Riverside), citing Trustees
of
the California
State University (2007) PERB Decision No. 1926-H and Newman-Crows Landing Unified
School District (1982) PERB Decision No. 223 (Newman-Crows Landing) ["In dealing with
effects bargaining, the employee organization is entitled to reasonable notice and an
opportunity to bargain over the negotiable effects
of
a non-negotiable decision."].) Notice
of
an employer's decision to implement a non-negotiable decision must be given sufficiently in
advance
of
implementation to allow the union a reasonable amount
of
time to decide whether
to demand to negotiate any effects. (Victor Valley Union High School District (1986) PERB
Decision No. 565; Compton Community College District (1989) PERB Decision No. 720
(Compton).) The determination
of
a reasonable amount
ohime
depends on the circumstances
of
each case. (County
of
Riverside; Newman-Crows Landing.)
"[O]nce the decision is made the employer must respond to requests to negotiate in a
manner consistent with its duty to bargain in good faith." (UC Regents.) In order to make a
prima facie case for violation
of
the duty to bargain in good faith over effects, the employee
organization must demonstrate that it made a valid request to bargain the negotiable effects
of
employer's decision. (County
of
Riverside; Sylvan Union Elementary School District
(1992) 	Decision No. 919; State
of
California (Department
of
Corrections) (2006) PERB
No. 1848-S.).) Although the request 	not be in any particular 	nor use a
particular verbiage, it must clearly identify negotiable areas of impact, and clearly indicate the
employee organization's desire to bargain over the effects of the decision as opposed to the
decision itself. (County
of
Riverside,· Newman-Crows Landing.) Failure by the employee
11

organization to make a valid request to bargain the negotiable effects of the decision
constitutes a waiver of the right to bargain regarding those effects. (County of Riverside.)
Only under certain circumstances may an employer implement a non-negotiable
decision prior to the completion of the bargaining process. (Compton [implementation prior to
completion of bargaining permissible where (1) implementation date based on immutable
deadline or important managerial interest, (2) notice of decision and implementation date given
sufficiently in advance of implementation date to allow for meaningful negotiations prior to
implementation, and (3) the employer negotiates in good faith prior to implementation and
continues to negotiate afterwards on unresolved issues].)
When claiming that an employer's non-negotiable decision will have an effect on a
subject within the scope of bargaining, the charging party bears the burden of alleging facts
demonstrating a reasonably foreseeable impact on employees' working conditions. (Fremont
Union High School District (1987) PERB Decision No. 651 (Fremont),· Mt. Diablo.) In order
to find a violation, "it is not necessary to prove the occurrence of an actual change in
employees' working conditions as a precondition to finding a duty on the part of management
to negotiate the impact ... the [charging party] need only produce sufficient evidence to
establish that the [non-negotiable] decision ... would have a reasonably foreseeable adverse
impact on employees' working conditions and that its proposal is intended to address employee
concerns generated by that anticipated 	" (Fremont,· Mt. Diablo.)
The bargaining obligation does not attach to effects that are purely speculative.
(Fremont,· Lake Elsinore School 	987) 	No. 646.) 	Board decision
in Mt. Diablo offers an example of a purely speculative effect. The non-negotiable decision
involved a layoff. The effect of that non-negotiable decision found by the Board to be purely
speculative was the "right to negotiate safeguards in case of a future layoff." Speculative
12

means "theoretical rather than demonstrable." (Merriam-Webster Online Dictionary
http://www.merriam-webster.com/dictionary/speculative [as of June 15, 2012].) The Board's
conclusion in Mt. Diablo is consistent with the definition of speculative in that a future layoff
is only a theoretical possibility and not demonstrable by any present means. In other words,
the alleged impact could not be expected or anticipated absent circumstances outside the
parties' present ability to control and therefore the impact was not reasonably foreseeable.
As a general rule, the direction of the workforce is a managerial prerogative that is not
subject to bargaining. (Davis Joint Unified School District (1984) PERB Decision No. 393
(Davis).) To the extent that a non-negotiable managerial decision concerning direction of the
workforce has an effect on employee workload, however, such an effect would be negotiable.
(Ibid. [under scope of representation test set forth in Anaheim Union High School District
(1981) PERB Decision No. 177, Board held that given the caseload model upon which the job
of counselor is structured, the number of cases assigned is a negotiable matter]; see also State
of California (Employment Development Department) (1998) PERB Decision No. 1284-S [the
issue of the number of interviews required to be conducted in a day is within the scope of
representation and therefore negotiable because it is reasonably and logically related to hours];
State of California (Department of Motor Vehicles) (1988) PERB Decision No. 1291-S [the
issue of performance standards is within the scope of representation and therefore negotiable
because it 	to wages in that the existence 	standards suggests 	potential for rewards
and discipline].)6 As the Board stated in Davis, the subject of workload is at 	core of the
contract 	plainly a subject 	concern to both management and
6 In the latter two cases, the alleged violation at issue involved allegations of an
unlawful unilateral change, not a failure to bargain effects. These cases are cited here only for
the point that workload issues, whether they present in the form of number of assignments or
performance standards, are within the scope of representation. They are not cited for any other
point or rule of law.
13

employees which may appropriately be resolved via the process
of
collective negotiation." In
the event an employer is unsure whether a particular subject is negotiable,
"it
is under
an
obligation to ask the union for its negotiability justification" (State
of
California (Department
of
Corrections) (2000) PERB Decision No. 1388-S); and inform the exclusive representative
of
the reasons for its
belief
that a matter is out
of
scope (Healdsburg Union High School District
and Healdsburg Union School District/San Mateo City School District (1984) PERB
Decision
No. 375 [decided on remand from the California Supreme Court]).
Because bargaining over effects contemplates that negotiations will occur prior
to
implementation
of
the non-negotiable decision, the parties must assess the effects
of
the
decision prospectively, without the benefit
of
hindsight. The effects must be reasonably likely
to occur, not proven to have already occurred. Where the employee organization has
made
a
timely demand for bargaining on an issue within the scope
of
bargaining, like workload, the
employer has the following three choices: (1) accede to the demand and address the employee
organization's concerns in negotiations; (2) ask the employee organization for its negotiation
justification; or (3) refuse the employee organization's demand. In choosing the third option,
the employer does so at its peril
if
its refusal is later determined to be unjustified.
Before turning to our analysis
of
the disputed issue, we first address CF
A's
argument
regarding Board precedent. CFA refers to a statement in the dismissal letter, which it asserts
calls for a clarification 	standard for determining 	an effect 	a non-negotiable
decision is itself negotiable. Both the dismissal and warning 	cited the Board's decisions
in Beverly 	Unified School District (2008) PERB Decision No. 1969 (Beverly 	and
Salinas Union High School District (2004) PERB Decision No. 1639 (Salinas) for the
proposition that "the charging party bears the burden
of
alleging facts establishing an actual
impact on employees' terms and conditions of employment." (Dismissal letter, May 10, 2011,
14

bold in original.) In concluding that the executive order has no "actual impact" on work hours,
the dismissal letter states as follows:
There is no evidence in the First Amended Charge that counselors
have in fact worked more than 40 hours per week as a result of
the Executive Order. On the contrary, the First Amended Charge
provides that the counselors currently spend 50% of their time on
direct counseling services. The First Amended Charge is
speculative at best, and insufficient to support a violation.
(Dismissal letter, May 10, 2011, p. 3; italics in original.)
CF A is concerned that, by requiring the charging party to allege "actual impact," the
Office of the General Counsel has eviscerated the "reasonably foreseeable" standard set forth
in Fremont. 	CSU's view is that the word "actual" was not used by the Board in Beverly Hills,
in describing the holding in Salinas, to limit the scope of negotiable "effects" to the exclusion
of prospective effects, but rather to distinguish them from purely speculative effects.
Both Beverly Hills and Salinas involved the issue of whether the employer's decision to
implement a non-negotiable management decision resulted in a unilateral change in employee
workload, a matter clearly within the scope of representation.7 Because one of the elements of
a unilateral change violation is that the employer implemented a change in policy concerning a
matter within the scope of representation (Vernon Fire Fighters v. City of Vernon (1980)
107 Cal.App.3d 802; Walnut Valley Unified School District (1981) PERB Decision No. 160;
San Joaquin County Employees Association v. City of Stockton (1984) 161 Cal.App.3d 813;
Grant Joint Union High School District (1982) 	Decision No. 196), the charging party in
such cases bears 	burden of establishing that the alleged change actually occurred. 	In
considering whether the charge in Beverly Hills alleged facts demonstrating that a policy
requiring teachers to release tests to parents had an actual impact on work hours, the Board
7 In addition, Beverly Hills involved an alleged refusal to bargain effects, but found that
the charge failed to establish a valid demand to bargain the negotiable effects of a non
negotiable policy.
15

held that such an impact could not be presumed from the terms of the policy itself, where the
policy did not lengthen instructional time, shorten preparation periods, or mandate that
teachers create new examinations. 8
Thus, the Board's use of the term "actual impact" in Beverly Hills was in the context of
determining whether a unilateral change in working conditions had occurred, not whether the
employer had breached its duty to negotiate over the effects of its decision prior to
implementation. In contrast, this case involves the issue of whether CSU had an obligation to
bargain over the effects of its non-negotiable decision upon timely request by CF A prior to
implementation. As mentioned in footnote 6, ante, cases involving unilateral change
allegations may provide useful discussion about whether a subject matter falls within the scope
of representation. Apart from that common element, the standard for determining whether
there has been an unlawful unilateral change is necessarily distinct from the standard for
determining whether there has been a failure to bargain effects. The former entails a unilateral
repudiation or change in the status quo as evidenced by the collective bargaining agreement or
an established past practice. The latter entails a failure to negotiate the effects of a decision
prior to any actual change. As the Board ruled in Fremont, in such cases, "it is not necessary
to prove the occurrence of an actual change in employees' working conditions as a
precondition to finding a duty on the part of management to negotiate the impact." So long as
or prospective effect of a non-negotiable decision identified 	charging
falls within the scope of representation and is reasonably foreseeable and causally 	to
Such a presumption was expressly rejected by the Board in Beverly Hills [overruling
San Bernardino City Unified School District (1982) PERB Decision No. 255, which had found
a negotiable effect based on a policy giving principals discretion to require lesson plans] and
Imperial Unified School District (1990) PERB Decision No. 825 [overruling presumption
expressed in Moreno Valley Unified School District (1982) PERB Decision No. 206 that effect
on work hours could be presumed from decrease in length of teacher preparation time].
16
8

the non-negotiable decision, the bargaining obligation attaches. To require a showing of
"actual impact" is at odds with the forward-looking nature of a foreseeability analysis.
Notwithstanding the Board's intent in Beverly Hills, however, the phrase "actual
impact" and the notion of proving actual change as an element of the prima facie case has crept
into PERB analyses in cases where the only unfair practice alleged is a failure or refusal to
bargain the prospective potential negotiable effects of a non-negotiable decision upon a timely
request. This case has brought to light not only a prima facie violation of CSU' s duty to
bargain in good faith over the effects on workload of the executive order, but as important,
confusion over and/or misidentification of the appropriate standard to be used in evaluating
such a charge. Accordingly, for purposes of clarification, we herein affirm that the
foreseeability standard as articulated in Mount Diablo is, and always has been, the appropriate
standard in cases involving the alleged failure to bargain the negotiable effects of a non
negotiable decision upon timely request prior to implementation. Also for purposes of
clarification, we herein disavow any precedential statements of law or analyses imposing on
the charging party the burden to establish that an "actual change" has occurred as an element
of an unfair practice charge alleging a failure or refusal by the employer to bargain the
negotiable effects of a non-negotiable decision upon a timely demand.
Applying the above-summarized Board precedent governing effects bargaining to the
facts here, CF A has met its 	of establishing a prima facie case. 	In identifying workload
as a potential prospective 	CSU' s executive order, CF A clearly identified an area of
impact, 	it believed to be within 	scope of representation. 	Rohrbacher' s 	of
November 8, 2010, CF A's desire to bargain over the effects on workload of the executive
order, as opposed to the executive order itself, was clearly communicated to CSU.
17

Accordingly, we conclude that CF A alleged sufficient facts to demonstrate that it made a valid
request to bargain the negotiable effects
of
CSU's decision.
CSU' s executive order establishes a minimum mandatory baseline/benchmark for time
spent performing direct counseling services
of
60 to 65 percent. CF A alleges that the
counselors spend 50 percent
of
their collectively-bargained 40-hour work week performing
direct counseling services, and that the remaining time spent on related case management and
other required services and activities cannot be eliminated or reduced. Factual support for
CF
A's
allegations was provided in the form
of
a declaration by an employee who is both a
counselor and the CF A Chair
of
the Counselor Caucus and therefore familiar with workload
demands both at the San Bernardino campus and system-wide.
In an unbroken line
of
precedential decisions, the Board has found that workload issues
are within the scope
of
representation and therefore negotiable. An increase in direct
counseling services unaccompanied by a decrease in other required workload demands
implicates the 40-hour work week and therefore relates to hours. The establishment
of
a
baseline/benchmark suggests the potential for rewards and discipline and therefore also relates
to wages. The only issue is whether the alleged prospective impact identified by CF A is
reasonably foreseeable, at the one end, or indirect and speculative, at the other. Assuming
CF
A's
allegations to be true, based on mathematics alone, we conclude that the charge alleges
sufficient facts to 	that effects on workload are reasonably foreseeable so as to
state a prima facie case
of
refusal to bargain. Whether or not such effects actually materialize
is not 	So 	as 	identified a reasonably foreseeable 	on workload, CSU
was obligated to meet and negotiate in good faith those potential impacts prior to
implementation.
18

Contrary to CSU's assertion that CF
A's
estimates are merely legal argument, we find
that CFA's estimates are specific, logical and fact-based. 	Just because the effects had
not
yet
occurred as
of
the filing
of
the amended charge does not mean that they should be categorized
as purely speculative in deciding whether CSU was under an obligation to bargain effects prior
to implementation on a subject matter unquestionably within the scope
of
representation. 	The
full implementation
of
the executive order could take years to materialize given the number
of
campuses and students involved and the size
of
the bargaining unit. Unlike the theoretical
effect
of
a possible future layoff in
Mt.
Diablo, the alleged prospective effects here are
demonstrable by projections based on current workload demands.
CSU also relies on two sentences in the executive order in support
of
its position that
there are no negotiable effects. The executive order states that individual adjustments
in
expectations may be necessary to accommodate additional responsibilities, assignments and
the academic calendar; and the executive order also states that it is not meant to supersede the
assignment provisions
of
Article 20
of
the CBA. The allowance for individual adjustments in
expectations does not negate the overall impact on hours, wages and terms and conditions
of
employment
of
being required to work under a newly-established minimum performance
standard. The language regarding supersession does not immunize CSU's non-negotiable
decision from effects bargaining.
	If
it did, then it would be too easy to avoid effects
bargaining with the careful drafting
of
documents. 	CSU asserts that the supersession language
is meant at least in part to indicate that the 40-hour work week prescribed by the CBA is not to
be disturbed by the executive order. As the Board stated in Fullerton Union High School
District (1978) PERB Decision No. 53, however:
Negotiations on hours must include not only the stated length of
the work day, but the ability of the employees to complete their
assigned work within the work day. 	Setting the hours of the
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work day is meaningless
if
the work can never be performed
within those hours.
(Fn. omitted.)
Therefore, CSU's refusal to bargain after CF
A's timely demand constitutes a prima
facie case
of
a per se refusal to negotiate in good faith over the effects
of
its non-negotiable
decision to implement the executive order. 	CSU's duty to negotiate in good faith is not
discharged by CSU's post-implementation willingness to "discuss" the executive order while
steadfastly maintaining that it had no duty to bargain. A decision allowing the charge to
proceed to complaint serves a fundamental purpose
of
HEERA to assure that higher education
employers carry out their functions "in an atmosphere which permits the fullest participation
by employees in the determination
of
conditions
of
employment which affect them." (HEER.A,
section 3560, subd. (e).) As stated by the concurrence in Davis:
The threshold question is whether the subject itself is negotiable
or nonnegotiable and a test
of
negotiability does not depend on
the submission
of
evidence as the needed wad to trigger
negotiations. Employees certainly are not required to prove that
their workday is too long, or that they cannot complete their work
within the scheduled hours, in order to place an hours-proposal
on the table. . . . [The dissenting members] seem to convert what
may be the employees' arguments at the table into a test
of
whether they are entitled to sit there in the first place.
ORDER
unfair practice charge in Case No. LA-CE-1125-H is hereby REMANDED to the
Office
of
the General Counsel for processing and issuance 	a complaint in accordance with
Members Dowdin Calvillo and Huguenin joined in this Decision.
20