Decision 0391E – Goleta Union School District

Transfer found in assignment of counseling duties to consultant counselors who, although held to be employees, are not members of the bargaining unit. The transfer diminished the work of the unit and deprived unit counselors of actual or potential work.

Subcontracting not found where employer transferred unit counselor work to consultants hired by the employer. Subcontracting exists where unit work is given to nonemployees.

Consultant counselors are employees despite personnel contracts with the employer describing them as "independent contractors." NLRA precedent is not persuasive. Section 3540.1(j) definition of "employee" does not contain language comparable to the federal exclusion of independent contractors. Consultant counselors possess the normal indicia of certificated employee status, including state- mandated credentials. They receive their assignments from and are supervised by school principals. In determining employee status under EERA, Board must rely primarily on statutory language, though will consider, in part, indicia of employment where they are appropriate; p. 15.

In determining employee status under EERA, Board must rely primarily on statutory languages, though will consider, in part, indicia of employment where they are appropriate; p. 15.

Union did not waive its right to negotiate when it made a demand that District rescind its action. Not essential that request to negotiate be specific or made in particular form; p. 21 (citing Newman-Crows Landing (1982) PERB Dec. No. 223).