Orcutt Union Elementary School District (PERB 2183E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
F
ORCUTT UNION ELEMENTARY SCHOOL
DISTRICT,
Employer,
and
ORCUTT EDUCATION ASSOCIATION,
CTA/NEA,
Exclusive Representative.
Case No. LA-UM-829-E
PERB Decision No. 2183
June 7, 2011
Appearances: Rutan & Tucker by David C. Larsen, Attorney, for Orcutt Union Elementary
School District; California Teachers Association by Priscilla S. Winslow, Attorney, for Orcutt
Education Association, CTA/NEA.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWD IN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the Orcutt Union Elementary School District
(District) to the proposed decision (attached) of a PERB Board agent. The Board agent granted
a unit modification petition of the Orcutt Education Association, CTA/NEA (Association) to
include "certificated employees and teachers of the Orcutt Academy Charter School"
(Academy), excluding supervisors and managers, in the existing District certificated
bargaining unit, finding that, because the Academy's teachers share a community of interest
with other District teachers, a single bargaining unit of certificated employees is appropriate.
The Board has reviewed the proposed decision and 	record in light of the District's
exceptions, the Association's response thereto, and the relevant law. Based on this review, we
find the proposed decision to be well-reasoned, adequately supported by the record, and in

accordance with applicable law. Accordingly, the Board adopts the proposed decision as the
decision
of
the Board itself, as supplemented by the discussion below.
DISCUSSION
The District asserts the following arguments in support
of
its exceptions: (1) by their
very nature, charter school employees lack a community
of
interest with non-charter
employees; (2) the doctrine
of
accretion, as established by law developed under the National
Labor Relations Act (NLRA), 1 applies to this case and requires a finding that a lack
of
employee interchange and lack
of
common day-to-day supervision preclude finding a
community
of
interest in this case; and (3) a bargaining unit including Academy employees
with District employees is not appropriate under the standard set forth in the Educational
Employment Relations Act (EERA)2 section 3545(a).
Applicability
of
EERA to Charter School Employees
As set forth in the Board agent's proposed decision, in Peralta Community College
District (1978) PERB Decision No. 77 (Peralta), PERB resolved an apparent conflict between
EERA section 3545(a) and section 3545(b)(l) by establishing a presumption that all classroom
teachers employed by a public school employer are to be placed into the same bargaining unit,
except where the factors listed in section 3545(a) are not met. Those factors include
community
of
interest, the effect
of
the proposed unit configuration on the efficient operations
of
the district, and the representation and negotiation history
of
the employees involved. (Ibid;
Long Beach Community College District (1989) PERB Decision No. 765; Rio Hondo
Community College District (1979) PERB Decision No. 87.) The burden is on the party
1 The NLRA is codified at 29 U.S.C. section 151 et seq.
2 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2

opposing the unit to establish that a unit composed
of
all teachers in the district is
inappropriate. (Peralta.)
Under PERB Regulation 3278l(a)(l),
3 PERB is authorized to add unrepresented
classifications or positions to an existing bargaining unit. 	Pursuant to section 32781 (e ), the
Board must require proof
of
majority support
of
persons employed in the classifications or
positions to be added
if
the proposed addition would increase the size
of
the established unit by
ten percent or more. In Regents
of
the University
of
California (2010) PERB Decision
No. 2107-H (Regents), the Board construed this language to mean that PERB may not require
proof
of
majority support when a unit modification petition seeks to add unrepresented
positions that total less than ten percent
of
the established unit, since increasing the unit by less
than ten percent does not call into question the incumbent union's majority support. (Ibid.)
Thus, under established PERB law, unrepresented employees may be added to an existing unit
where the increase would amount to less than ten percent
of
the unit.	
(Id.
at pp. 23-24 ["the
Legislature has subordinated this right
of
employee free choice to the overriding policy
of
avoiding proliferation
of
bargaining units"]; see also Los Angeles Unified School District
(1998) PERB Decision No. 1267 [rejecting argument that PERB's unit determination
procedures undermine employee "free choice" under EERA]
.)4
In addition to the provisions
of
EERA, the Charter School Act (CSA),5 governing the
establishment and operation
of
charter schools, contains some provisions addressing
employment issues. The CSA was amended in 1999 to provide for collective bargaining
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
4 For the reasons set forth in the Board agent's decision, we reject the District's
argument that the doctrine of "accretion" under the NLRA applies to unit determinations by
PERB. (Regents.)
5 The CSA is codified at Education Code, section 47600 et seq.
3

for charter school employees. Assembly Bill (AB) 842, introduced by Assembly
Member Carole Migden on May 21, 1999, would have imposed a mandatory requirement
that charter school employees be automatically placed in existing bargaining units with
non-charter employees and subject to existing collective bargaining agreements covering those
employees, without regard for the community
of
interest and other factors set forth in EERA
section 3545(a). Thus, AB 842 would have prevented PERB from considering whether such
employees had a community
of
interest with other school district employees, or any
of
the
other factors set forth in section 3545(a), in determining the appropriate bargaining unit for
placement
of
charter school employees. Faced with significant opposition on the ground that
the bill would violate established community
of
interest principles, AB 842 was replaced by
amendments to AB 631 that resulted in the amendment
of
both the CSA and EERA to include
charter schools within the scope
of
EERA. (Stats. 1999, Ch. 828.)
In addition to amending section 3540.1 to expressly include charter schools within
coverage under EERA, AB 631 added Education Code section 47611.5 to the CSA. That
section provides:
(a) Chapter 10.7 (commencing with Section 3540)
of
Division 4
of
Title 1
of
the Government Code shall apply to charter schools.
(b) A charter school charter shall contain a declaration regarding
whether or not the charter school shall be deemed the exclusive
public school employer
of
the employees at the charter school for
the purposes
of
Section 3 540
.1
of
the Government Code.
If
the
charter school is not so deemed a public school employer, the
school district where the charter is located shall be deemed the
public school employer for the purposes of Chapter 10. 7
(commencing with Section 3540) of Division 4 of the
Government Code.
(c)
If
the charter of a charter school does not specify that it shall
comply with those statutes and regulations governing public
school employers that establish and regulate tenure or a merit or
civil service system, the scope of representation for that charter
school shall also include discipline and dismissal of charter
school employees.
4

( d) The Public Employment Relations Board shall take into
account the Charter Schools Act
of
1992 (Part 26. 8 ( commencing
with Section 47600)) when deciding cases brought before it
related to charter schools.
( e) The approval or a denial
of
a charter petition by a granting
agency pursuant to subdivision (b)
of
Section 47605 shall not be
controlled by collective bargaining agreements nor subject to
review or regulation by the Public Employment Relations Board.
(f) By March 31, 2000, all existing charter schools must declare
whether or not they shall be deemed a public school employer in
accordance with subdivision (b
),
and such declaration shall not be
materially inconsistent with the charter.
On its face, Education Code section 47611.5 contains three provisions relevant to the
issues before the Board. First, subdivision (a) expressly mandates that the provisions
of
EERA
apply to charter schools.6 Second, subdivision (b) requires a charter school charter to declare
whether or not the school district where the charter is located shall be deemed the public
school employer for purposes
of
EERA, and subdivision (f) deems the school district to be the
public school employer
if
the charter fails to specify otherwise. Third, subdivision (d) requires
PERB to take the CSA into account when deciding cases brought before it related to charter
schools. Notably, nothing in the CSA addresses the bargaining unit placement
of
charter
school employees.
Legislative History
Notwithstanding the absence
of
any language in the CSA pertaining to bargaining units
for charter school employees, the District contends that the legislative history surrounding the
addition
of
Education Code section 47611.5 to the CSA requires a departure from PERB's
established precedent regarding unit determination and modification, such that PERB' s normal
unit determination and modification rules do not apply at all to the determination of whether
AB 631 also amended subdivision (k) of section 3540.1 to expressly include charter
schools within the definition of "public school employer" or "employer" under EERA.
5

charter school employees should be included in a larger bargaining unit
of
employees
of
a
school district.
Having reviewed the legislative history
of
both AB 842 and AB 631, we find nothing in
that history to support the District's position that AB 631
had either the intent or the effect
of
abrogating PERB' s normal unit modification rules. Nothing in the language
of
the bill itself
specifically grants charter school employees the right to choose whether or not to be included
within an existing bargaining unit
of
school district employees. Instead, it is clear from the
legislative history that the primary purpose
of
the bill was to ensure that charter school
employees were afforded the same collective bargaining rights that other school employees
enjoy under EERA. Thus, in her request that Governor Gray Davis sign AB 631, Assembly
Member Migden stated, in part:
I respectfully request your signature on AB 631 which would
give teachers and other school employees at charter schools the
same right to collective bargaining that is afforded to all school
employees in California under the Educational Employment
Relations Act (EERA) and the Higher Education Employer-
Employee Relations Act (HEERA) .
. . . This bill is not a mandate for charter schools to unionize, but
it does ensure the statutory right
of
charter school employees to
organize
if
they choose to. 	Furthermore, the EERA and HEERA
will give charter school employees the right to appeal to the
Public Employment Relations Board (PERB)
if
there are any
disputes or grievances.
Some have argued that charter school employees already have
this right. However, because charter schools are exempted from
most state laws governing public schools, including collective
bargaining, charter school employees do not have statutory
protections under state laws that are given to traditional public
school employees
....
(Emphasis added.)
6

The letter goes on to reference a PERB decision in which PERB determined that it did
not have the authority under EERA to address allegations that two charter school employees
were fired in discrimination for attempting to organize. 7
Moreover, the language relied upon by the District does not support its position. Thus,
a statement in support
of
amendments introduced on June 2, 1999, states: "This amendment
makes it clear that collective bargaining will be at the choice
of
charter school employees -
consistent with the process for traditional public school employees." (Emphasis added.)
AB 631 contains language (codified at Education Code section 4 7611.S(b) and (f), and EERA
section 3540. l(k)) requiring the charters
of
charter schools to declare whether the charter
school is to be designated as the public school employer for purposes
of
EERA (see
Chula Vista Elementary School District (2004) PERB Decision No. 1647 (Chula Vista)), but
nothing in that language or the legislative history requires charter school employees to be
given a choice over the designation
of
the public school employer or to be placed in a separate
bargaining unit in the absence
of
such a designation. In this case, the charter specifically
designates the District as the public school employer. 8 Accordingly, we agree with the Board
agent that the legislative history does not support the District's position that charter school
employees cannot be included in a unit
of
non-charter employees.
We therefore conclude that PERB' s unit modification regulations apply to charter
schools, subject to the requirement
of
Education Code section 47611.S(d) that PERB take the
CSA into account when deciding cases involving charter schools. Consistent with EERA
7 The specific case is not identified. However, in San Francisco Unified School
District (2001) PERB Decision No. 1438, PERB confirmed that, prior to the 1999 amendments
to the CSA, PERB lacked jurisdiction under EERA over charter schools.
8 In contrast, some charter provisions do provide for employees to vote on whether to
amend the charter to designate the charter school as the public school employer. (See, e.g.,
Chula Vista; Robert L. Mueller Charter School (2003) PERB Order No. Ad-320.)
7

section 3545(b), as interpreted by the Board in Peralta, we also conclude that charter school
classroom teachers may be added to an existing unit
of
non-charter school teachers unless the
factors set forth in EERA section 3545(a) cannot be met. Those factors include community
of
interest and the effect
of
the size
of
the unit on the efficient operation
of
the school district.9
We agree with the Board agent that the Academy teachers share a sufficient community
of
interest with the other teachers in the District to warrant inclusion in the District-wide
bargaining unit.
In addition, pursuant to Education Code section 47611.S(d), PERB must take into
account the CSA when deciding such cases. The Board agent did so by considering the effect
of
the proposed unit on the District's operations and the goals
of
the CSA. 	We further agree
with the Board agent's analysis and conclusions that the District has not demonstrated that the
proposed unit would unduly interfere with its ability to achieve the goals set forth in its charter
petition or in the CSA. Accordingly, we conclude that the Association has established
sufficient grounds to grant the petition for unit modification.
ORDER
For the above reasons and based upon the entire record in this case, it is hereby
ORDERED that Orcutt Education Association, CTA/NEA's unit modification petition to add
the Orcutt Academy Charter School certificated employees and teachers, excluding supervisors
and managers, to the existing Orcutt Union Elementary School District certificated unit is
hereby GRANTED.
Chair Martinez and Member Huguenin joined in this Decision.
In this decision, we do not address the issue of whether charter school teachers may
appropriately be included in a bargaining unit of non-charter employees where the charter
school, rather than the public school district, is designated as the public school employer
pursuant to Education Code section 47611.S(b) and EERA section 3540.1.
8

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD F
ORCUTT UNION SCHOOL DISTRICT,
Employer,
and
ORCUTT EDUCATION ASSOCIATION,
Exclusive Representative.
REPRESENTATION
CASE NO. LA-UM-829-E
PROPOSED DECISION
(March 15, 2011)
Appearances: Rutan & Tucker, LLP by David C. Larson, Attorney for Orcutt Union School
District; California Teachers Association by Joseph R. Colton, Attorney for Orcutt Education
Association.
Before Eric J. Cu, Hearing Officer.
PROCEDURAL HISTORY
On January 20, 2010, the Orcutt Education Association (Union) filed a petition with the
Public Employment Relations Board (PERB or Board) seeking to modify the existing
certificated bargaining unit at the Orcutt Union School District (District) to include the
"certificated employees and teachers at the Orcutt Academy Charter School (Academy)
excluding supervisors and managers." On January 21, 2010, the Union filed an amended
petition, specifying that its unit modification request was filed pursuant to PERB Regulation
3278l(a)(l) and PERB Regulation 32781(b)(2). 1 At the time, the existing certificated
bargaining unit had approximately 185 members and the Academy had approximately 14
teachers.
1 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

On February 10, 2010, the District filed a statement opposing the Union's petition. The
District asserted that the proposed unit would not be an appropriate bargaining unit under
Educational Employment Relations Act (EERA) section 3545(a).2
An informal settlement conference was held on April 27, 2010, but the matter was not
resolved. Thereafter, the matter was scheduled for a formal hearing.
On December 1-2, 2010, the Union and the District appeared before PERB to conduct
the formal hearing. 	On February 28, 2011, the parties submitted simultaneous post-hearing
briefs. At that point, the record was closed and the matter was submitted for decision.
FINDINGS OF FACT3
I. 	The Traditional Education Program
The District's traditional education program is one of eight school districts serving the
Santa Maria Valley. The District's traditional education program provides education to
kindergarten through eighth grade students. The District operates six traditional elementary
schools: Alice Shaw, Joe Nightingale, May Grisham, Patterson Road, Pine Grove, and Ralph
Dunlap. The District also operates two junior high schools: Lakeview Junior High School and
Orcutt Junior High School.
In addition, prior to the 2008-2009 school term, the District's traditional education
program operated an independent study component. 	During that time, the independent study
program was based at the Orcutt Junior High School campus and unit member Bridgette
DePalma-Steed was the coordinator of the program.
2 EERA is codified at Government Code section 3540 et seq.
3 In this case, one of the primary issues is the degree to which teacher working
conditions in the District's charter school education program are similar to or different from
the conditions in its other education programs. For ease of discussion, this decision will refer
to conditions at the charter school as either the "Charter School program" or the "Academy
program." This decision will refer to the District's other education programs as the
"traditional education program."
2

The governing body of the District is a Board of Trustees consisting of five publicly
elected members. The District's Board of Trustees holds regular public meetings to address
issues affecting the District's operations. The District handles personnel matters through its
Human Resources office. The District administrator in charge of Human Resources is the
Assistant Superintendent of Human Resources. At all relevant times, Jan Yanagisako held the
position of Assistant Superintendent of Human Resources.
II. 	Teachers in the Traditional Education Program
The primary job function for teachers in the District's traditional education program is
to deliver State-standardized curriculum to the District's students. Teachers are expected to
produce lesson plans, provide instruction in the classroom, give assignments, and administer
examinations. Teachers are also expected to participate in in-service training. One example of
in-service training was a training for Gifted and Talented Education (GATE) held during the
2009-2010 school term.4 In addition, some teachers participate in the District's Curriculum
Council. The purpose of the Curriculum Council is to discuss District-wide curriculum issues.
Teachers in the traditional education program also participate in Professional Learning
Communities (PLCs). PLCs are meetings between the teachers of the same grade level. PLC
meetings give teachers the opportunity to share their experiences during a school year about
the effectiveness of materials and strategies and how to improve the delivery of the curriculum.
The District also holds a District-wide PLC annually.
4 There was conflicting evidence presented regarding whether the District held a
training in the 2009-2010 school term. District witness Kenneth Parker testified that the last
GATE training he recalled occurred prior to the 2008-2009 school term. Union witness
Monique Segura testified that she attended a GATE training in the 2009-2010 school term. I
credit the Union's evidence as it purports to be a first-hand account and because the District
did not provide an adequate foundation regarding Parker's awareness of all of the District's in-
service programs.
3

Teachers in the traditional education program are hired through an interview process.
Typically, one or two principals, a few teachers, and the District Assistant Superintendent of
Human Resources attends an interview for a new teacher position. To qualify for a District
teaching position, an applicant must hold a State teaching credential. Once hired, the District
provides teachers with an annual employment contract. Newly credentialed teachers may
participate in a Beginning Teacher Assistance and Support (BTSA) program to be mentored by
a more experienced District teacher.
Generally speaking, teachers receive permanency after teaching at the District for three
consecutive years. A permanent teacher receives some expectation of continued employment
at the District and is also entitled to certain due process protections in the event of termination
or other discipline.
Many of the terms and conditions of teachers' employment are outlined in the
Collective Bargaining Agreement (CBA) in place between the Union and the District. The
Union has represented certificated personnel in the District's traditional education program
since 1976. For example, the CBA sets forth teachers' salary scale, benefits, and leave. 	Under
the CBA, a teacher may request to transfer to a different District teaching position. The CBA
also includes a provision that permits a teacher to displace another teacher with lower seniority
in the event that the senior teacher's position is eliminated.
The District expressed a goal of assigning each teacher a class of approximately 25-28
students, depending on grade-level. Actual enrollment numbers have varied. 	Some teachers
teach combination classes, meaning the teacher is assigned groups of students from two
different grade levels. Under the CBA, teachers assigned to combination classes are entitled to
a stipend used to purchase supplies and other materials for the classroom. Teachers assigned
to combination classes deliver a separate curriculum to each group of students.
4

Principals are the primary supervisor for teachers at each school site in the District's
traditional education program. As such, principals conduct teacher performance evaluations
for teachers after conducting in-class observations.
5
III. 	Formation of the Charter School
During the 2007-2008 school term, the District began exploring the possibility of
opening a charter school. District representative Kenneth Parker played a significant role in
the development of the District's charter school plans including preparation of the charter
petition. At the time, Parker was the Associate Superintendent of Instruction at the District.
Element 15 of the charter petition included the following declaration: "For the purpose of the
Educational Employment Relations Act (EERA) the Orcutt Union School District will be the
exclusive employer of the employees at Orcutt Academy."
During the charter school formation process, District teachers were informed that it was
necessary for teachers to sign their names to a petition supporting the formation of a charter
school. 	Seven District teachers signed the petition on September 27, 2007. Afterwards, the
signatories to the petition attended a series of meetings regarding the progress of the charter
school's development.
On November 7, 2007, the State Board of Education approved the District's petition to
create the Orcutt Academy charter school. The operational agreement in the charter petition
was first approved for the period of July 2008 until June 30, 2009. The operational agreement
has since been renewed annually until the present time. 	Orcutt Academy began operations in
August 2008, for the 2008-2009 school term.

IV. 	The Orcutt Academy Charter School
6
The Orcutt Academy currently provides instruction for approximately 430 students,
breaking down to roughly 80 kindergarten through eighth grade students and roughly 350 high
school level students. As explained above, no other school site in the District provides
education to students at the high school level.
The Academy's
K-8
grade program operates out
of
the District's Casmalia location.
The District is forbidden by State law to build more than three classrooms at this location. For
this reason, the Academy has no expectation to expand this aspect
of
the Academy's program
at this location. Accordingly, this aspect
of
the Academy has three classes: one kindergarten
through second grade class, one third through fifth grade class, and one sixth through eighth
grade class. The Academy has one teacher for each
of
these classes for a total
of
three.
The Academy's high school program operates out
of
vacant classroom space at the
Orcutt Junior High School site. All high school classrooms and offices are separated from the
junior high school by a fence. 	As a result, the classrooms, restrooms, employee lounge, and
other facilities are not shared with the junior high school. Unlike the K-8 program, the
Academy does plan on expanding its high school program. The program does not currently
provide instruction for all four high school grades (ninth through twelfth) but plans on doing so
as its existing students advance into higher grade levels.
In addition, the Academy modified and took over operations
of
the independent study
program previously run by the District's traditional education program. 5 As part
of
the new
program, students were required to attend a limited number of classes in District classrooms.
The classroom component was fulfilled in vacant classrooms at the Pine Grove Elementary
School.
5 During the 2008-2009 year, the independent study program included students assigned
to both the District and to the Academy.

The Academy's operations are governed by a Board of Directors who are the same
individuals as the District's Board of Trustees. These individuals hold separate meetings when
acting in the capacity as the Academy's Board of Directors. The Academy does not have an
office to address personnel matters. Instead, the Academy has a contract with the District to
use the District's Human Resources office for this purpose.
V. 	Teachers at the Academy
As in the District's traditional education program, applicants for teacher positions at the
Academy are required to hold a State teaching credential. Teachers at the Academy are also
hired through an interview process. Under the Academy's hiring process, Academy faculty,
parents, community members, and alumni all participate on interview panels. The Academy
employs what it refers to as "a two-team approach." One panel of interviewers questions the
applicant about curriculum and core understanding of relevant subject-matter. The other panel
focuses on the applicant's ability to develop lifelong learning skills. Applicants for Academy
teaching positions are also expected to present a sample lesson to interviewers. As under the
District's education program, teachers hired for the Academy are given an annual employment
contract. Teachers from the District's traditional education program can and have accepted
positions at the Academy after going through the Academy's interview process.
Not all Academy teachers are hired through this interview process. For example, when
the Academy took over operations of the District's independent study program in 2008-2009,
DePalma-Steed continued to act as coordinator of the program. DePalma-Steed was not
informed that she had become an employee of the Academy until she requested an employment
contract after the 2008-2009 term began. In addition, Jean Byrne, Brenda Hascall, and Laura
Knowlton all provide instruction on a part-time basis at the Academy but were not required to
7

apply or interview for their positions. Byrne, Hascall, and Knowlton are also teachers in the
District's traditional education program.
The terms and conditions of employment for teachers at the Academy are not governed
by the CBA. Nevertheless, salary, benefits, and leave for Academy and other District teachers
are identical. In addition, Academy teachers are eligible to participate in the same retirement
program as other District teachers.
Like other District teachers, Academy teachers are considered "permanent" after
teaching at the Academy for three years. 	"Permanent" status at the Academy entitles the
teacher to continued employment at the Academy and, although not yet fully defined, some
due process protection in the event of discipline.
Teachers at the Academy have the same basic job function as other District teachers,
i.e., delivering State-determined curriculum to students. 	Both the Academy teachers that
testified at the hearing were previously teachers in the District's traditional education program
and stated that the two programs use similar techniques and materials. However, Academy
teachers provide more instructional hours per school term than other District teachers.
Teachers at the Academy also employ themes as a means of performing their job function. 	For
example, one Academy teacher encourages students to consider their lives as a journey as a
means of relating to the journeys of literary figures. 	Teachers at the high school level also help
students develop career-based skills. Academy teachers are also expected to serve a
counselor/mentor role to students and must give presentations to parents about the Academy's
programs.
Unlike in the District's traditional education program, all of the Academy's K-8 classes
are combination classes consisting of three grades each. Under the Academy's teaching
model, teachers focus less on a grade-level specific curriculum and more on assuring that each
8

student is educated in State required standards at the end of his or her elementary school
career. With this in mind, the three elementary school teachers at the Academy meet regularly
during the school year to discuss curriculum. Academy teachers also participate in the
District-wide Curriculum Council and the District-wide PLCs. In addition, Academy teachers
occasionally attend District in-service trainings. For example, Shannon Brinsfield attended the
GATE training held during the 2009-2010 school term.
As with the rest of the District, each of the schools at the Academy has a principal as its
primary administrator. The principal is responsible for evaluating Academy teachers and does
so by performing multiple classroom observations each year.
ISSUE
The issue in this case is whether a bargaining unit consisting of all the District
certificated personnel, including those employed at the Academy, is an appropriate bargaining
unit. EERA section 3541.3(a) authorizes PERB to make unit determinations in disputed cases.
The District asserts that because of the unique structure of charter schools and the
Academy in particular, it would be inappropriate to include the Academy's teachers in this
bargaining unit. Rather, the District contends that a separate unit of Academy teachers is
appropriate. 6
The Union contends that the community of interest factors and other unit determination
criteria favor a finding that the Academy's teachers should be included in the existing
certificated unit.
In fact, the District questioned in its post-hearing brief whether a single unit of charter
school and traditional teachers could ever be appropriate.
9

CONCLUSIONS OF LAW
I.
	Unit Determination Criteria
The EERA specifies the factors to consider when making unit determinations. EERA
section 3545(a) states:
In each case where the appropriateness
of
the unit is an issue, the
board shall decide the question on the basis
of
the community
of
interest between and among the employees and their established
practices including, among other things, the extent to which such
employees belong to the same employee organization, and the
effect
of
the size
of
the unit on the efficient operation
of
the
school district.
EERA section 3545(b)(l) states:
A negotiating unit that includes classroom teachers shall not be
appropriate unless it at least includes all
of
the classroom teachers
employed by the public school employer, except management
employees, supervisory employees, and confidential employees.
The Board interpreted these sections
of
EERA in Peralta Community College District (1978)
PERB Decision No. 77 (Peralta). 	In that case, the Board recognized what could be interpreted
as conflicting statements in EERA section 3545(a), which requires that disputed unit
determinations be made according to the factors specified therein, and EERA section
3545(b )(1 ), which states that a unit including classroom teachers must include all classroom
teachers. The Board resolved this apparent conflict by holding "reading subsection 3545(b)
together with companion subsection 3545(a) gives rise to the presumption that all teachers are
to be placed in a single unit save where the criteria
of
the latter section cannot be met." (Ibid.)
In doing so, the Board recognized that the Legislature intended to minimize the dispersion
of
bargaining units in school districts while understanding that critical negotiation-related
differences between certain teacher classifications may compel separate units. (Ibid.)
Accordingly, the Board found that the burden of challenging a comprehensive teachers' unit
falls upon the party opposing that unit. (Ibid.) This interpretation has been upheld by the
10

Board in subsequent decisions. (See e.g., Salinas Union High School District (2002) PERB
Order No. Ad-315.)7
Although the Board decided the issue in Peralta, supra, PERB Decision No. 77 based
almost entirely on community of interest factors, the Board recognized the importance of all
the factors listed in EERA section 3545(a). For this reason, in deciding whether the Peralta
presumption has been rebutted, the Board also considers the effect of the proposed unit
configuration on the efficient operations of the school district, and the representation and
negotiation history for the group of teachers involved. (Long Beach Community College
District (1989) PERB Decision No. 765 (Long Beach); Rio Hondo Community College District
(1979) PERB Decision No. 87; Peralta, supra, PERB Decision No. 77.) PERB will consider
all of these factors in the instant case.
A. 	Reliance on the Charter Schools Act
The District argues that an understanding of the unique framework created by the
Charter Schools Act of 1992 (CSA) and its legislative history is necessary in resolving the unit
dispute raised in this case. 8 The District asserts that the CSA was designed to provide
operationai independence from existing ruies governing school districts. The CSA includes the
following declaration:
It is the intent of the Legislature, in enacting this part, to provide
opportunities for teachers, parents, pupils, and community
members to establish and maintain schools that operate
independently from the existing school district structure, as a
method to accomplish all of the following:
(a) Improve pupil learning.
7 Further reference to this analysis shall be made as the "Peralta presumption."
8 The CSA is codified at Education Code section 47600 et seq.
11

(b) Increase learning opportunities for all pupils, with special
emphasis on expanded learning experiences for pupils who are
identified as academically low achieving.
(c) Encourage the use of different and innovative teaching
methods.
(d) Create new professional opportunities for teachers,
including the opportunity to be responsible for the learning
program at the school site.
( e) Provide parents and pupils with expanded choices in the
types of educational opportunities that are available within the
public school system.
(f) Hold the schools established under this part accountable for
meeting measurable pupil outcomes, and provide the schools with
a method to change from rule-based to performance-based
accountability systems.
(g) Provide vigorous competition within the public school
system to stimulate continual improvements in all public schools.
In accomplishing these goals, the CSA exempts charter schools from many sections of
the Education Code. (Ed. Code,§ 47610; Wilson v. State Board of Education (1999) 75
Cal.App.4th 1125, 1145 [holding CSA provides a "broad exemption from most education laws
governing school districts"].) Notably absent from this section of the CSA is any mention of the
intent to approach labor relations, collective bargaining, or unit determinations differently in the
case of a charter school. Also absent from the CSA is any provision that would exempt a charter
school from the unit determination criteria set forth in EERA section 3545.
CSA section 47611.5 does specify that PERB should "take into account the Charter
Schools Act of 1992 when deciding cases brought before it related to charter schools." The
District urges PERB to consider the legislative history of this section which includes two
related bills, Assembly Bill 613 (AB613) and Assembly Bill 842 (AB842). PERB has
previously recognized the relevance of legislative history in statutory interpretation.
(California Statewide Law Enforcement Association (Morgan) (2009) PERB Decision
12

No. 2089-S.) Indeed, the Board has previously examined the Legislative history of AB613.
(See e.g., Chula Vista Elementary School District (2004) PERB Decision No. 1647.) Thus, it
is appropriate to review the legislative history.
AB842 was introduced by Assembly Member Carole Midgen and would have required
school districts that formed charter schools to include the charter school employees in existing
certificated or classified bargaining units. This bill was debated in the Assembly
Appropriations Committee but ultimately did not reach a vote before the full Assembly
chamber. As the District points out, this bill was opposed by multiple sources, including then-
Oakland Mayor Jerry Brown who argued that the bill "completely ignores 'community of
interest' as the basis for unit determination."
AB613, also primarily sponsored by Midgen, appears to have been an attempt to
address some of the opposition to AB842. AB613 amended the CSA to include the language
of section 47611.5 as it exists today and also required charter petitions to identify either the
charter school or the supervising school district as the public school employer for purposes of
EERA. AB613 further proposed to amend EERA section 3540.l(k) to include charter schools
that have made such a declaration in the definition of a public school employer. Both of these
proposals were also adopted into the CSA. (Ed. Code,§§ 47605(b)(5)(O), 47605.6(b)(5)(M).)
The District notes that, on June 2, 1999, Midgen described AB613 as "mak[ing] it clear
that collective bargaining will be at the choice of charter school employees[.]" From this and
similar language, the District argues that PERB' s unit determination process, including EER.A.
section 3545, the Peralta presumption, and PERB Regulations concerning unit modification
petitions should not apply to charter schools. Rather, the District appears to contend that the
Legislature intended to give charter school teachers the ability to determine their own
bargaining units and that charter school employees must support the formation of a unit.
13

I find insufficient information in either the CSA or its legislative history to support such
an inference. In the same June 2, 1999 meeting referenced by the District, Midgen explained
that collective bargaining for charter school employees should be "consistent with the process
for traditional public school employees." In addition, Midgen consistently stated that she
"amended this bill to give charter school employees the same right to organize as traditional
public school employees." (See, e.g., statements made: (1) at an August 23, 1999 Senate
Appropriation Committee meeting; (2) at a July 19, 1999 Senate Education Committee
meeting; and (3) at an Assembly floor meeting dated August 23, 1999.) Reading all of this
documentation together, I find that nothing in either the CSA or its legislative history requires
that PERB include or exclude charter school teachers from an existing certificated bargaining
unit without conducting a unit determination analysis. 	Moreover, PERB has specifically
rejected the notion that employees' preferences may usurp the Board's authority under EERA
section 354 l.3(a) to make unit determinations in disputed cases. (Los Angeles Unified School
District (1998) PERB Decision No. 1267 (Los Angeles).) Rather, "the Board should be
empowered and directed in the statute to find the largest reasonable unit to be the appropriate
one for the purposes of coilective bargaining." (Ibid., quoting California Assembly Advisory
Council, Final Report, pg. 85 (March 15, 1973)9; emphasis in original.)
Accordingly, I believe that the Legislature intended precisely what it said, that charter
schools are subject to the provisions of EERA, including section 3545, but that PERB should
consider the structure designed in the CSA when resolving disputes concerning charter
schools. (Ed. Code,§§ 47605(b)(5)(O), 47605.6(b)(5)(M), 47611.5(d).) Therefore, in the unit
determination in this case, PERB will apply the Peralta presumption but will consider the
This report is sometimes referred to as the "Aaron Report" named for Benjamin
Aaron. The Aaron Report has been cited as evidence of the Legislature's intent in passing
EERA. 	(See San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 11.)
14

effect of its decision on the Academy's ability to carry out its educational model and to achieve
the goals of the CSA as specified in Education Code section 47610.
B. 	Reliance on Federal Unit Determination Criteria
The District urges PERB to adopt unit determination criteria and procedures used by
the National Labor Relations Board (NLRB) in this case. PERB may take cognizance of
NLRB precedent in order to interpret analogous provisions of PERB statutes. (Carlsbad
Unified School District (1979) PERB Decision No. 89.) However, in Regents of the University
of California (2010) PERB Decision No. 2107-H, the Board expressly rejected the argument
that NLRB processes should apply to PERB' s unit modification process, particularly where
there are dissimilar provisions. 10 In that case, an employer requested that PERB require the
petitioner in a unit modification case to submit proof of employee support for the petition even
though the petition would not increase the overall size of the unit by more than 10 percent. A
similar petition filed under NLRB procedures would have required a showing of support. The
Board recognized the differences between its own process and the process in the NLRB but
nevertheless declined to adopt the NLRB' s process. The Board specifically found that "PERB
may not require a showing of support when a unit modification petition seeks to add
unrepresented positions that total less than ten percent of the established unit." (Jbid.) 11
Regents of the University of California, supra, PERB Decision No. 2107-H was
decided under the Higher Education Employer-Employee Relations Act (HEERA). Unit
modifications under both EERA and HEERA are governed by the same PERB Regulations.
(See PERB Regulation 32781 et seq.)
11 The District suggests that even under PERB Regulation 3 7281, the Union should be
required to submit proof of support for this petition because, at the time of the hearing, the
bargaining unit consisted of 180 members and the Academy had 20 teachers. However, it is
undisputed in this case that, at the time the petition was filed, the bargaining unit consisted of
185 members and the Academy had 15 teachers. PERB has previously found that
determinations regarding proof of support are appropriately made at the time the petition is
filed. 	(Kings County Office of Education (1990) PERB Decision No. 801.)
15

PERB has also rejected the argument that a unit determination under the NLRB's
accretion doctrine could rebut a PERB-determined, presumptively appropriate bargaining unit.
(Regents of the University of California (1994) PERB Decision No. 1039-H.) In that case, the
Board declined to accept the appropriateness of a pharmacists unit, even though, under NLRB
standards, such a unit was found appropriate. (Ibid., see also Salinas Union High School
District, supra, PERB Order No. Ad-315.) Accordingly, in this case, because PERB's unit
modification and unit determination process is not analogous to the NLRB, it would not be
appropriate to rely heavily on federal decisions.
II. 	EERA Unit Determination Analysis
A. 	Community of Interest
PERB makes community of interest determinations by considering working conditions
such as wages, hours, employment benefits, job function and purpose, supervision,
qualifications, training, and contact among employees. (Oakland Unified School District
(1983) PERB Decision No. 320; Peralta, supra, PERB Decision No. 77.) In previous
decisions, the Board weighed "the similarity in work performed more heavily than the other
community of interest factors." (San Diego Community College District (2001) PERB
Decision No. 1445.) However, community of interest determinations consider whether under
the totality of the circumstances, the positions share mutual interests. (Ibid.)
In Fairfield-Suisun Unified School District (1983) PERB Decision No. 370 (Fairfield-
Suisun), the Board considered the appropriateness of a proposed petition to include hourly
adult education instructors in an existing certificated bargaining unit. In finding the proposed
unit to be appropriate, the Board noted the similarities between hourly adult education teachers
and the employer's other teachers. Both of these groups taught many of the same subjects, and
delivered education in basically the same manner, i.e., preparing lesson plans, administering
16

examinations, and issuing grades. (Ibid.) Both needed a State credential to teach, were
evaluated by the same type of administrators, and maintained a similar expectation of
continued employment. (Ibid.) Both groups participated in the same curriculum development
meetings and in-service training. (Ibid.) The Board did not find differences in work site
locations and funding sources to be sufficient to overcome the community of interest. 	(Ibid.)
The Board reached a similar conclusion regarding adult education instructors in
Palo Alto Unified School District (1983) PERB Decision No. 352 (Palo Alto). In that case, the
Board found both groups of teachers shared the same goals and objectives of educating
students seeking a high school diploma. The Board further found that the "instructional
practice and techniques, tools and materials used to achieve those goals are also similar."
(Ibid.) 	Although the Board recognized differences in the manner that each group of teachers
taught different subject matter ("either as discrete classes or as part of more general classes in
the general subject area"), the Board did not find that such differences defeated a community
of interest. (Ibid.) The Board also found unsubstantial differences in hours and benefits.
(Ibid.)
In contrast with the above-referenced decisions, in Santa Clara Unified School District
(2007) PERB Decision No. 1911 (Santa Clara), an employee organization petitioned for the
creation of a separate unit of adult education instructors. In that case, the Board found that a
separate unit of adult educators could be appropriate because of those teachers' unique hours,
supervisors, school term, pay rate, benefits, credentialing requirements, and the lack of any
expectation of continued employment. (Ibid) Notably, the issue in that case was whether a
separate unit was appropriate which is a separate inquiry from whether a comprehensive unit
would have been inappropriate. Moreover, as will be discussed in more detail below, the
deciding factor in that case was the fact that the incumbent representative of the employer's
17

teachers had declined to petition to include adult education instructors in the existing teachers
unit for more than 25 years. (Ibid.)
In Peralta, supra, PERB Decision No. 77, the issue was whether instructors at a skills
center shared a community of interest with other teachers at a community college district. In
that case, the Board found significant differences between skills center employees and regular
faculty including a different educational purpose. Skills center instructors taught job training
courses designed to ready students for immediate employment while other faculty taught
courses as part of the community college district's general curriculum. (Ibid.) In addition, the
Board held that skills center employees maintained employment only upon receiving federal
grants to continue the program. Faculty, on the other hand, had a reasonable expectation of
continued employment. The Board also found that differences in salary and benefits reflected
a different set of priorities between skills center employees and regular faculty. 	For all these
reasons, the Board found that skills center employees lacked a community of interest with the
employer's faculty. 	(Ibid.)
Considering all of the relevant case law as well as the CSA, I find that certificated
personnel at the Academy share a community of interest with the teachers in the District's
certificated bargaining unit. Both sets of employees have the same basic goals, delivering
State-mandated curriculum to students in the Santa Maria Valley. Both seek to achieve these
goals in similar ways, including use of the same teaching materials and textbooks. 	Such
similarities favor finding a community of interest. (See, San Diego Community College
District, supra, PERB Decision No. 1445; Fairfield-Suisun, supra, PERB Decision No. 370;
Palo Alto, supra, PERB Decision No. 352.)
It is true that teachers at the Academy utilize different techniques from the rest of the
District. Academy teachers employ themes and do not rely heavily on grade-level based
18

teaching. As a function of its unique teaching model, Academy teachers have certain job
duties other teachers do not. Academy teachers are required to perform a counseling function
for Academy students. In addition, Academy teachers are required to give presentations to
local parents about the Academy and its programs. However, in Palo Alto, supra, PERB
Decision No. 352, the Board did not find such distinctions to be controlling. Moreover, neither
party presented evidence suggesting how a single unit of teachers would adversely affect the
Academy's teaching model. Indeed, nothing in the existing CBA addresses whether to
implement or disregard any particular teaching method. Even if it did, nothing would require
the parties to apply the existing CBA to the Academy's teachers. Thus, the Academy's
education model does not demonstrate a community of interest distinct from the District's
other teachers.
The Academy's teachers share other similarities with District certificated staff. 	They
are paid on the same pay-scale and receive the same benefits, including leave. Both groups are
supervised and evaluated by principals. Both groups are required to possess a State teaching
credential and are eligible to participate in the State BTSA program. These factors also are
indicative of a community of interest. (Los Angeles, supra, PERB Decision No. 1267;
Pasadena Community College District (1995) PERB Decision No. 1098; Fairfield-Suisun,
supra, PERB Decision No. 370.)
Academy and other District teachers do not interact on a daily basis, but this appears to
be true of all District teachers that work in separate school sites. Both groups of teachers do
participate in Curriculum Councils for the purpose of discussing District-wide curriculum
issues. At the school site level, Academy teachers participate in local curriculum discussions
similar to discussions held at other District school sites. Both groups of teachers have also
19

attended the same in-service GATE training. These factors too favor finding a community of
interest. (Fairfield-Suisun, supra, PERB Decision No. 370.)
In addition, Academy and other District teachers receive annual teaching contracts.
Both groups of teachers can achieve permanent status, which guarantees the employees some
expectation of continued employment. The Board has found that a similar expectation of
permanent employment favored finding a community of interest. (Fairfield-Suisun, supra,
PERB Decision No. 370.) Conversely, differences on this factor have been found to favor a
distinctive interest. (Peralta, supra, PERB Decision No. 77.)
There are some notable differences between Academy teachers and the District's other
certificated employees. Academy teachers teach more instructional hours per year. Academy
teachers are hired through an interview process that involves more interviewers and more steps
than other District teachers. Academy principals conduct more observations prior to
conducting an evaluation. A teacher at the Academy's elementary school program does not
have an automatic right to transfer to the Academy's high school program. However, given the
numerous similarities, I do not find that these differences rebut the presumption in favor of a
single teachers unit. This is especially true because many of the differences listed above are
subject to the collective bargaining process. 12 PERB has previously found differences that
could be adjusted through the bargaining process to be insufficient to rebut the Peralta
presumption. (Palo Alto, supra, PERB Decision No. 352, citing Redwood City Elementary
School District (1979) PERB Decision No. 107.)
B. 	Efficiency of Operations and Ability to Pursue the Goals of the CSA
12 PERB has previously found that an employer's transfer policy and teacher evaluation
process to be within the scope of negotiations. (Fall River Joint Unified School District (1998)
PERB Decision No. 1259; A1odesto City Schools (1983) PERB Decision No. 347.) PERB has
also found that instructional hours could implicate issues that are within the scope of
representation. (Cloverdale Unified School District (1991) PERB Decision No. 911.)
20

As discussed above, the Board considers the effect the proposed unit may have on the
employer's operations. (Peralta, supra, PERB Decision No. 77.) However, "[a]bsent concrete
evidence that a district's operational efficiency will be unduly impaired ... operational
efficiency will not be considered as a factor which militates against the establishment of the
[proposed] unit." (Lodi Unified School District (2001) PERB Decision No. 1429, other
citations omitted.)
The District argues that "[i]ncluding Academy teachers in the same unit with District
teachers would be problematic for Academy operations especially if they were to operate under
the same terms and conditions of employment as District teachers with respect to such things
as class size, hours of employment, including instructional and preparation time, transfers and
reassignments, impact of lay-off, combination classrooms and extra-duties." However, the
essence of this argument is undercut by the fact that nothing requires the parties to apply
existing terms and conditions of employment to Academy teachers. In Palo Alto, supra, PERB
Decision No. 352, the Board acknowledged that not all of the terms and conditions of the
existing teachers' contract could apply after adding substitute teachers. 	The Board stated that
"the fact that there may be different provisions ... merely means that the comprehensive
negotiations will be slightly more complex." (Palo Alto, supra, PERB Decision No. 352,
citing Oakland Unified School District, supra, PERB Decision No. 320, El Monte Union High
School District (1982) PERB Decision No. 220, and Dixie Elementary School District (1981)
PERB Decision No. 171.)
If PERB were to approve the instant unit modification petition, the Union and the
District would have a mutual obligation to negotiate over the terms and conditions of Academy
teachers. Any decision regarding the application of the CBA to Academy teachers would be
subject to the negotiations process. The mere fact that the District would be required to
21

negotiate with the Union over these terms is not sufficient to render the proposed unit
inappropriate. (Palo Alto, supra, PERB Decision No. 352; see also, Santa Ana Unified School
District (2010) PERB Order No. Ad-383.)
The District also argues that inclusion of the Academy's teachers into the existing
certificated bargaining unit would adversely affect its ability to achieve the Academy's goals.
The District contends that the Legislature sought to avoid this result. However, no evidence
was presented that suggests that bargaining with the Union regarding Academy teachers would
adversely affect the Academy's ability to achieve the goals specified in either its charter or in
the CSA. For example, a collective bargaining obligation does not require that the Academy
alter its instructional minutes, interview and hiring process, or transfer procedures.
In addition, Article III of the CBA dictates that District teachers should be given
autonomy in the education process but that such autonomy must be exercised "within the
District's curriculum framework." This suggests the parties' intent to respect the District's
authority to decide the teaching model of the District's schools. Moreover, PERB has
previously found that where "legitimate changes in the nature, direction or level of service have
occurred, changes which are not based primarily on wage and benefit cost considerations" are
outside the scope of negotiable issues. (Antelope Valley Union High School District (2000)
PERB Decision No. 1402, quoting East Side Union High School District (1999) PERB
Decision No. 1353.) Thus, many aspects of the Academy's operations could be found to be
outside of the scope ofrepresentation and therefore not subject to change if the District were
required to negotiate with the Union. Accordingly, the District has not presented "concrete
evidence that [its] operational efficiency will be unduly impaired" by the proposed unit
modification. (See Lodi Unified School District, supra, PERB Decision No. 1429.) Nor has
22

the District demonstrated that the proposed unit would unduly interfere with its ability to
achieve the goals set forth in its charter petition or in the CSA.
C. 	History of Representation
As explained above, Peralta, supra, PERB Decision No. 77 was based almost entirely
on community of interest factors because, at the time, there was only two years of negotiation
history under EERA. In later cases, the Board recognized that representation history may play
a more prominent role. (Palos Verdes Peninsula Unified School District (1982) PERB
Decision No. 195.)
In Long Beach, supra, PERB Decision No. 765, the Board found that it was appropriate
to create a separate unit of part-time faculty where the full-time faculty representative made no
effort to represent those employees. The Board noted that it could not force the existing
representative to petition for the unrepresented positions and that any other holding would
leave part-time faculty without representation. (Ibid.)
As explained above, in Santa Clara, supra, PERB Decision No. 1911, the Board
reached a similar conclusion where the existing faculty union declined to file a petition to
represent adult education teachers for 25 years and only filed a petition when a competing
organization sought to represent the group. The Board recognized under those circumstances
that it would not be appropriate to disturb bargaining units that had been in existence for some
time and had not previously demonstrated an interest in representing the adult education
instructors. In that case, the Board declined to disturb the existing bargaining relationship by
adding the new classifications. (Ibid.)
Unlike the above-cited cases, the Union is actively seeking representation of the
Academy's teachers. 	The District points out that the Union declined to petition to represent
the Academy's teachers when the Academy first opened in 2008. 	However, as in Peralta,
23

supra, PERB Decision No. 77, two years of negotiating history is not sufficient to make a
useful analogy to the Board's reasoning in Santa Clara, supra, PERB Decision No. 1911 or
Long Beach, supra, PERB Decision No. 765. In addition, unlike in Santa Clara, supra, PERB
Decision No. 1911, the District has historically treated Academy and other District teachers
similarly. For example, both groups of teachers are on the same salary scale and receive the
same benefits. The parties have presented evidence that District teachers have taken positions
at the Academy and visa versa. A history of distinctive treatment would have favored
establishing a separate unit. (Peralta, supra, PERB Decision No. 77.) However, facts to that
effect are not present in this case.
At least one of the Academy's teachers, Michael Shaw was concerned that the Union
could not adequately represent Academy teachers' interests, particularly regarding other
District employees' displacement rights into Academy positions in the event of a layoff. 	Shaw
stated that other Academy employees share his views. PERB has previously considered
employees' preferences as one factor in unit determination cases. (State of Cal(fornia
(Department of Personnel Administration) (1993) PERB Decision No. 1025-S.) However,
PERB has rejected the idea that employee free choice will supersede PERB's unit
determination authority. (Berkeley Unified School District (2005) PERB Decision No. 1744;
Los Angeles, supra, PERB Decision No. 1267.) Moreover, the presented evidence only
suggests, at best, that some of the Academy's teachers were concerned that the Union and the
District will negotiate the right of other District employees to transfer into Academy teaching
positions. However, to presume this conclusion at this juncture would be improper since no
evidence was presented about proposed subjects for negotiations. Therefore, this factor does
not favor the District's position.
24

PROPOSED ORDER
Based upon	~	
the foregoing,	~ 	~	
the CSA, and the entire record in this matter, I find a single
bargaining unit consisting of all of the District's certificated personnel to be an appropriate
bargaining unit. Academy teachers share a community of interest with other District teachers
already part of the certificated bargaining unit. Neither the Academy's nor the District's
operations would be significantly adversely affected by this unit determination, and the District
has a history of treating Academy and other District teachers similarly. Therefore, the Union's
unit modification petition is granted.
Right of Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code
section l 1020(a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
25

provided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
26
Eric J. Cu
Regional Attorney