HILLSBOROUGH COUNTY SCHOOL BOARD
Decision of PERC
Hillsborough Classroom Teachers Association, Inc., Charging Party
v.
School Board of Hillsborough County, Respondent.

Case No. CA-066, 81U-353
October 1, 1981
Before Powers, Chairman; Parrish and Brooks, Commissioners

Scope of Bargaining - Non-Mandatory Subjects - Class Size William H. Yanger, Jr., Tampa, attorney for charging party.
Rev. Leon Lowry, Tampa. representative for respondent.

The evidence supplied by the HCTA discloses that the School Board and the HCTA are currently parties to a collective bargaining agreement scheduled to expire on June 30, 1982. On June 30, 1981, pursuant to a contractual reopener provision, the parties met for negotiations and exchanged proposal packages. The parties met again to negotiate on July 28, 1981, at which time Robert Queirolo, the School Board's chief negotiator, informed Sam Rosales, HCTA's chief negotiator, that the School Board refused to negotiate concerning HCTA proposals on class size, additional teacher's aides, clerks, and guidance counselors. According to the HCTA, Queirolo opined that although these items were negotiable, the School Board would not negotiate on them this year. He further stated that if the HCTA agreed to withdraw these items from its package, he might agree to negotiate over three other items not considered negotiable by the School Board team. The HCTA did not indicate what those "three other items" were.

We are not persuaded that the HCTA has demonstrated that the School Board has refused to bargain concerning any subject, especially in light of the fact that the complained-of transaction took place at what appears to have been the first actual negotiating session between the parties. See e.g., Florida State FOP v. City of Riviera Beach, 7 FPER 12109 (1981). The evidence supplied by the HCTA discloses that the School Board's negotiator made equivocal statements regarding the negotiability of HCTA's proposals; such statements do not constitute a flat refusal to bargain.

However, even if it is assumed that the School Board has refused to bargain concerning identifiable proposals of the HCTA, we conclude that it is under no obligation to negotiate the proposals cited in the charge regarding class size, additional teacher aides, clerks, and guidance counselors.

The HCTA made five individual proposal on class size which set the following limits on student-teacher ratios:
The number of students per teacher in
primary grades shall not exceed one
teacher to twenty students. The number of
students per teacher in the intermediate
grades shall not exceed one teacher to
twenty-two students. The number of
students per teacher in junior high
physical education classes shall not
exceed the average number of pupils per
teacher in other subject areas at the same
school site. FTE hours for speech and
hearing therapists shall not exceed sixty-five.
The number of students per teacher
in grades seven through twelve shall not
exceed one to twenty-seven students.

After examination of these proposals and consideration of the decisions of other public sector jurisdictions in the light of Florida's public labor relations policy, we conclude that the School Board is not required to bargain concerning them. We hold that union proposals to set specific limits on class size, whether couched in terms of student-teacher ration or FTE per teacher, are not mandatory subjects of negotiations because class size does not itself constitute a matter of falling within the ambit of the phrase "wages, hours, and terms and conditions of employment." See Section 447.309, Florida Statutes (1979). Therefore, such proposals merely represent an attempt to limit the educational public employer's Section 447.209 right to set a standard of service by determining class size; they do not represent an attempt to accommodate the impact of the exercise of a management right upon the existing wages, hours, or conditions of employment of public employees, as will be discussed more fully below.

In reaching this decision we are aware that public sector jurisdictions differ widely as to the negotiability of class size proposals. In California, where the scope of negotiations is defined by statute, class size is a mandatory subject of negotiations. See CAL. GOVT. CODE 3543.2 (West); Southeastern College Education Association v. Sweetwater (Community College District, 3 PEPC 10084 (Cal. 1979). United Professors of Marin v. Marin Community College District, 3 PERC 10085 (Cal. 1979).

A similar result has been obtained In Nevada by court decision. Clark County School District v. Government Employee Management Relations Board. 530 P.2d 114 (Nev. 1975). In contrast, Maine, Nebraska, and South Dakota courts have excluded class size as a proper subject for collective bargaining. Biddeford v. Biddeford Teachers Assn, 304, A.2d 387 (Me. 1973),. School District of Seward Education Assn. v. School District of Seward, 188 Neb. 772, 784, 199 N.W. 2d 752 (1972), Aberdeen Education Assn. v. Aberdeen Board of Education, 215 N.W. 2d 837 (S.D. 1974).

Still other jurisdictions, which in our opinion represent the better view, do not require mandatory negotiations concerning class size, e.g... Boston Teachers Union. Local 66 v. School Committee of Boston 350 N.E. 2d 707 (1976), but recognize that the size of the classes which teachers are required to teach may have an impact on teachers' workload in particular and on all of their terms and conditions of employment in general. Therefore, these jurisdictions require negotiations concerning the impact of class size upon workload to the extent severable from the decision to increase class size. E.g. West Irondequoit Teachers Association v. Helsby, 33 NY 2d 46, 315 N.E. 2d 775 (N.Y. 1974); Newark College of Engineering Professional Staff Association v. New Jersey Institute of Technology. 5 NJPER 110202 (1979), Beloit Education Association v. WERC 242 N.W. 2d 231. 91 LRRM 33 1 9 (Wis. 1976). We agree with this approach.

We are of the opinion that the decision as to the size of classes constitutes a management right not requiring negotiation because the class, i.e., a group of students who receive instructional services offered by public education, is the basic unit in which these instructional services are delivered. Therefore, the determination of class size clearly involves the setting of a "standard of service" within the meaning of section 447.209; it is evident that the number of students served by public education is directly related to the size and number of classes offered.

The HCTA proposals concerning additional guidance counselors, teacher aides and clerks are as follows:
Each intermediate grade level shall be
allocated a minimum of one teacher aide.

All school sites with EMH classes shall be
allocated a minimum of one teacher aide for
exclusive use by the EMH unit.

All media centers shall be allotted a minimum of one clerk.

Each school site shall employ a minimum of one
full-time guidance counselor.

We conclude that the School Board need not negotiate proposals to set minimum staffing levels for guidance counselors, aides, and clerks. Union proposals to require minimum staffing levels have consistently been designated non-mandatory subjects of bargaining by other public sector jurisdictions. E.g., Aberdeen Education Association v. Aberdeen Board of Education 215 N.W. 2d 837 (S.D. 1974); Blackhawk Vocational Technical and Adult Education District v. Blackhawk Federation of Teachers, 1980 PBC 42,254 (Wis. 1980), Borough of Edgewater and Edgewater FMBA Local 39, 6 NJPER 11096 (1980); City of Creston, 2 NJPER 16-11016 (Iowa 1980).

The specific proposals presented here infringe upon the public employer's ability to establish those staffing standards which it determines are appropriate to provide the instructional personnel and the students with adequate support services through aides, clerks, and guidance counselors. Intrinsic in the right to staff is the discretion to determine the staffing levels at each work site. It is evident that the assignment of two employees per function per site represents a higher level of service than the assignment of one employee per site.

In Manatee Education Association v. Manatee County School Board, 7 FPER 12017 (1980), we concluded that a School Board was not obligated to bargain over the assignment or reassignment of employees in accordance with past practice and applicable collective bargaining agreements, stating:
[T]he employer is required to engage in
collective bargaining upon demand if the
exercise of this management right impacts upon
established wages, hours, or other terms and
conditions of employment of unit employees
represented by a collective bargaining agent.
Palowitch v. Orange County School Board, 3
FPER 280 (1977); aff'd 367 So. 2d 730 (Fla.
4th DCA 1979). The obligation to bargain,
though, arises only when the impact is on the
collective interests of the represented
employees. When the impact is confined to an
individual employee, there is no duty to
bargain under Section 447.309(1), Florida
Statutes:(1979). 7 FPER at 33.

Our holding here, that the determination of class size and of staffing levels are management rights which are not mandatory subjects of bargaining must be read in conjunction with the principles outlined in the foregoing quotation. We emphasize that there is no statutory impediment to voluntary negotiation or the inclusion of terms relating to those subjects in an enforceable collective bargaining agreement upon the concurrence of the negotiating parties. E.g., In re City of Boynton Beach, 7 FPER 12090 (1981); In re City of Tallahassee, 5 FPER 10244 (1979). rev'd on other grounds, 7 FPER 12114, 393 So. 2d 1147 (Fla. 1st DCA 1981). We do not intend that this decision operate in derogation of any existing collective bargaining agreement on these topics.

We observed in United Faculty of Palm Beach Junior College v. Palm Beach Junior College Board of Trustees, 7 FPER 12300 (1981), that Section 447.209, Florida Statutes (1979), grants to public employers "the right to make unilateral decisions with regard to those matters within the scope of 'management rights' but not to implement unilaterally such decisions in a manner which affects the wages, hours, and terms and conditions of employment of bargaining unit employees prior to requested negotiations." Accord Local 1240, LIUNA v. DeSoto County, 7 FPER 12248 (1981). But, at least insofar as management decisions regarding class and support staff size are concerned, we do not recognize a presumptive impact upon wages, hours, and terms and conditions of employment, in the collective sense discussed above, flowing from the implementation of adjustments to class size or support staffing levels. In order to establish negotiable impact flowing from such decisions, an employee organization must show direct and substantial effects upon existing wages, hours, terms and conditions of employment caused by and foreseeably resulting from the implementation of the decisions in question. We do not intend to provide employees or their representatives with a veto over essential educational policy decisions via supposed "impact bargaining" based upon presumptions or speculations as to the effect of policy choices.

For the reasons set forth above, the charge is DISMISSED.

It is so ordered.

Cite as: FPER 14097
HILLSBOROUGH COUNTY SCHOOL BOARD
District Court of Appeal, First District
Hillsborough Classroom Teachers Association, Inc., Appellant,
vs.
School Board of Hillsborough County, Appellee,
vs.
Florida Teaching Profession, National Education Association, Broward County Classroom Teachers Assn and Florida Education Association/United, Intervenors.

Case No. AJ-328,
Decision of Florida District Court of Appeal
December 6, 1982
Before McCord, Booth and Wentworth, JJ.

Refusal To Bargain- Class Size- Minimum Staffing- 43.56,43.612,43.95,43.98,72.589 Decision, 7 FPER 12411 (1981), recon.den., 8 FPER 13074 (1982), in which PERC concluded that school board was not required to bargain concerning decisions affecting class size and minimum staffing levels, affirmed. However, impact of such decisions on employees' terms and conditions of employment may be subject of bargaining.

William H. Yanger, Jr., for Appellant.
Thomas M. Gonzalez of Shackleford, Farrior, Stallings & Evans, and M. Wayne Jacobs, Staff Counsel, PERC, for Appellee. McCORD, J.
Appellants appeal the order of the Public Employees Relations Commission (Commission) dismissing their complaint of unfair labor practice against the appellee School Board of Hillsborough County. In the order, the Commission held that class size and minimum staffing levels are not mandatory subjects of collective bargaining because they do not fall within the ambit of the phrase "wages, hours, and terms and conditions of employment" pursuant to 447.301(l), Florida Statutes. We affirm.

In its order on reconsideration, the Commission clarified its position, as follows:
We have not proscribed negotiation concerning any proposal touching on, relating to, or dependent upon class size or minimum staffing levels. We recognize that, for example, there may be negotiable proposals relating to class size and teacher workload, for instance those which arc based upon the impact of class size upon the wages, hours, terms and conditions of employment of teachers. The proposals in this case, however, do not contain such a relationship.

Rather, these proposals attempt to limit the employer's prerogative to set class size and minimum staffing levels. While we recognize that such decisions quite often may directly and substantially affect the wages, hours, terms and conditions of employment of bargaining unit members, it is the effects of the decisions and not the decisions themselves which arc mandatorily negotiable. Because the proposals presented in this case seek only to require the employer to surrender its Section 447.201 right to unilaterally decide class size and minimum staffing levels, negotiation over these proposals is not required. (Emphasis supplied.)

We agree with the Commission's view that the setting of class size and minimum staffing levels are policy decisions which are incorporated in the term "standards of service to be offered to the public" which are to be unilaterally set by the public employer, pursuant to 447.209, Florida Statutes, and thus are not mandatorily bargainable. This decision does not preclude mandatory bargaining as to the impact of the implementation of such decisions on "wages, hours, and terms and conditions of employment" when an appropriate showing of negotiable impact has been made.

AFFIRMED.
BOOTH and WENTWORTH, JJ., Concur.