Center Unified School District (PERB 2379E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CENTER UNIFIED SCHOOL DISTRICT,

Employer, Case No. SA-UM-821-E
and PERB Decision No. 2379
CALIFORNIA SCHOOL EMPLOYEES June 27, 2014

ASSOCIATION & ITS CHAPTER 610,

Exclusive Representative.

Appearances: Atkinson, Andelson, Loya, Ruud & Romo by Fermin Villegas, Attorney, for
Center Unified School District; Christina C. Bleuler, Lead Staff Attorney, for California
School Employees Association & its Chapter 610.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION

BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Center Unified School District (District) to the proposed
decision (attached) of a Hearing Officer. The proposed decision concluded that approximately
37 noon duty aides (NDAs) employed by the District share a sufficient community of interest
with the District's classified employees and therefore ordered that the NDAs be included in the
existing wall-to-wall classified unit, as requested in a unit modification petition filed by the
California School Employees Association & its Chapter 610 (CSEA), which represents the
classified unit.

The Board has reviewed the entire record in this case, including the proposed decision,
the hearing transcript and the exhibits thereto, the District's exceptions to the proposed

decision, and CSEA's response to the District's exceptions. Based on this review, we find the

Hearing Officer's findings of fact supported by the record and his conclusions of law well-

reasoned and in accordance with applicable law. We therefore adopt the proposed decision as
a decision
of
the Board itself, subject to the discussion below
of
the District's exceptions.
DISCUSSION
We begin with a review
of
the relevant statutory and decisional law regarding ND As
before considering the District's exceptions. Educational Employment Relations Act (EERA)1
section 3545, subdivision (a), provides that appropriate units are to be determined based on a
"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." In determining whether a community
of
interest exists, PERB considers
several criteria. These include the extent to which employees have similar qualifications,
training and skills; job duties; salary and benefits; hours
of
work, supervision; interaction with
other employees, interchange
of
job functions; and other relevant factors. (Rio Hondo
Community College District (1979) PERB Decision No. 87.) No one criterion is
determinative. The point in comparing these factors "is to reveal the interests
of
employees
and [to] ascertain whether they share substantial mutual interests in matters subject to meeting
and negotiating." (Monterey Peninsula Community College District (1978) PERB Decision
No. 76.)
Sweetwater Union High School District (1976) EERB2 Decision No. 4 (Sweetwater)
and subsequent cases establish a rebuttable presumption favoring three appropriate units
of
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references herein are to the Government Code.
2 Prior to 1978, PERB was known as the Educational Employment Relations Board
(EERB).
2

classified employees: a paraprofessional unit including instructional aides; an office-technical
and business services unit; and an operations-support services unit. Although "preferred," the
Sweetwater configuration is not the only possible one and, where appropriate, the Board has
approved others. (Foothill-DeAnza Community College District (1977) EERB Decision
No. 10; Marin Community College District (1978) PERB Decision No. 55.) Where a proposed
unit
of
classified employees does not correspond to the Sweetwater configuration, the standard
used is not whether the proposed unit is the most appropriate unit, but whether it constitutes an
appropriate unit. (Elk Grove Unified School District (2004) PERB Decision No. 1688,
adopting proposed decision at p. 24.) Indeed, notwithstanding the Sweetwater presumption,
there is some authority suggesting that the Legislature wished to avoid the unnecessary
proliferation
of
public-sector bargaining units and generally intended for PERB "to find the
largest reasonable unit to be the appropriate one for purposes
of
collective bargaining."
(Los Angeles Unified School District (1998) PERB Decision No. 1267, p. 5, quoting from
California Assembly Advisory Council, Final Report, p. 85 (March 15, 1973) "Aaron Report,"
emphasis in original.)
Regardless
of
how a public school employer's classified employees units are
configured, the Board has long held that NDAs are "public school employees" within the
meaning
ofEERA
section 3540.1, subdivision
G),
and, that they may appropriately be included
in a unit
of
classified employees for collective bargaining purposes. PERB has reached this
conclusion, despite that the Education Code expressly excludes such employees from the
definition
of
"classified service," because EERA's broad definition
of
"public school
employee" "is not limited in any way to certificated employees or employees in the classified
service." (Pittsburg Unified School District (1976) EERB Decision No. 3 (Pittsburg); Fontana
Unified School District (2004) PERB Decision No. 1623 (Fontana).) Thus, the Board has
3

consistently held that NDAs should enjoy the same rights afforded other public school
employees to bargain collectively through a representative
of
their own choosing. (Pittsburg.)
The sole exception to this line
of
cases is Castaic Union School District (2010) PERB
Order No. Ad-384 (Castaic), in which a majority
of
the Board concluded that NDAs have no
collective bargaining rights under EERA because they are expressly excluded from the
definition
of
"classified service"
in
the Education Code. (Id. at pp. 4-5.) The Castaic Board
observed that EERA defined the term "exclusive representative"
a.s
"the empl~yee organization
recognized or certified as the exclusive negotiating representative
of
certificated or classified
employees in an appropriate unit
of
a public school employer." (Ibid., emphasis in original.)
The Castaic Board interpreted this language as legislative intent that, despite the statute's more
broadly-worded definition
of
"public school employee," only certificated or classified
employees may bargain collectively through an exclusive representative. As an alternative
ground, the Board also concluded that the petitioner in Castaic had failed to provide sufficient
evidence
of
a community
of
interest between ND As and classified employees. The Castaic
majority then overruled Pittsburg3 but directed that its decision only be applied prospectively
to minimize disruption
of
existing units that included both ND As and classified employees.
In a separate opinion, Member Wesley concurred with the majority's view that the
petitioner in Castaic had failed to provide sufficient evidence
of
a community
of
interest
between NDAs and employees in the classified unit. However, she disagreed with the
majority's reading ofEERA and dissented from its conclusion that NDAs were not covered by
EERA or entitled to the same collective bargaining rights as certificated and classified
employees.
3 The Castaic majority did not overrule or attempt to distinguish Fontana.
4

Less than a year after the Board issued Castaic, the Legislature enacted Assembly Bill
No. 501 (Campos), which became Chapter 674, Statutes
of
2011. AB 501 amended EERA to
clarify that an "exclusive representative" is the exclusive negotiating representative of, not just
certificated or classified employees, but
of
"public school employees" as defined elsewhere
in the statute. We agree with the Hearing Officer's conclusion in the present case that,
"This amendment appears to repeal or overturn the holding
of
Castaic, supra, PERB Order
No. Ad-384, concerning the representation rights
of
NDAs." To the extent th~t was not the
intent
of
the Legislature when it enacted AB 501, we hereby overrule Castaic as inconsistent
with long-standing PERB precedent to the extent it holds that ND As are excluded from
collective bargaining rights under EERA and/or that they may not be included in an
appropriate unit with classified employees. With this legal framework in mind, we turn to the
District's exceptions.
The District filed 19 exceptions to the proposed decision, the majority
of
which
challenge the Hearing Officer's factual findings. Exception Nos. 3, 12, 13, 15, and 16, for
example, assert various distinctions in the hiring procedures, job qualifications, duties,
disciplinary procedures, fringe benefits, or other community
of
interest factors which,
according to the District, undermine the proposed decision's conclusion that a community
of
interest exists between ND As and the District's classified employees. In the Pittsburg and
Fontana decisions the Board considered essentially these same arguments and determined that
the distinction between NDAs and classified employees that stem from their different status
under the Education Code is not dispositive
of
whether they share a community of interest and
may, therefore, exercise their collective bargaining rights within a common unit. For example,
the fact that an employer has a more complicated or lengthier hiring process for its classified
employees whereas NDAs are hired "informally" and more or less at the discretion of
5

individual school principals, does not dictate that ND As belong in a unit separate from the
classified employees. (Pittsburg, supra, EERB Decision No. 3.) Similarly, the Board has
repeatedly held that even significant differences in the wages, hours, fringe benefits and other
terms and conditions
of
employment currently available to two groups
of
employees is not a
persuasive argument for rejecting a proposed unit including both groups, "since for all
practical purposes the hours, wages and other terms and conditions
of
employment are mainly
within the [employer's] control" (Oakland Unified School District (1983) PERB Decision
No. 320 ( Oakland), p. 5), and therefore "would be negotiable
if
the unit modification petition
is granted." (Fontana, supra, PERB Decision No. 1623; see also Redwood City Elementary
School District (1979) PERB Decision No. 107; El Monte Union High School District (1982)
PERB Decision No. 220 (El Monte).)
Several
of
the District's exceptions do not directly challenge the Hearing Officer's
factual findings. Exception No.
1,
for example, asserts that the Hearing Officer's statement,
that NDAs employed at Wilson C. Riles Middle School pick up litter, "requires clarification,"
because it implies that ND As pick up litter as part
of
their job duties, whereas., according to the
District, they choose to do so, "merely [as] employees taking pride in their campus and
surroundings." The District is aware that NDAs pick up litter, an activity that undoubtedly
inures to the benefit
of
the District. As such, it is part
of
the compensable duties performed for
their employer. (29 U.S.C. § 203, subd. (g); 29 CFR § 785; Morillion
v.
Royal Packing
Co.
(2000) 22 Cal.4th 575, 584-85.) Whether the District specifically requires NDAs to pick up
litter, or "merely" permits them to do so, or whether instead it uses some combination
of
both,
is ultimately
of
no significance here, since it is undisputed that ND As regularly perform this
duty, as described in the proposed decision. As such, it was appropriate for the Hearing
Officer to consider the extent to which ND As share this duty with custodians or other
6

classified employees as part
of
the community
of
interest analysis. (Fontana, supra, PERB
Decision No. 1623.)
Other exceptions (Nos. 2, 5 and 12) assert that the proposed decision "depicts certain
arrangements in general terms," which the record indicates are only in place at one school,
thereby misleadingly "giv[ing] the impression that particular arrangements are District-wide
and much more widespread than they are." Exception No. 13, likewise objects to the Hearing
Officer's finding that "NDAs as well as all other school site District employees have been
required to attend at least two days
of
anti-bullying training," because, according to the
District's witness, anti-bullying training was provided to all employees at Dudley Elementary
School but not to all employees
of
the District. Exception Nos. 10 and 11, similarly argue that
the Hearing Officer's findings and conclusions "are not based on sufficient evidence," because
CSEA presented testimony from two ND As currently employed at only two
of
the District's
eleven schools.
The District, however, does not employ NDAS at all
11
of
its schools. The undisputed
evidence was that NDAs work at the District's four elementary schools, one rμiddle school and
one high school but, for obvious reasons, are concentrated at the elementary and middle
schools. CSEA's two NDA witnesses included Melissa Walker (Walker), an NDA at Wilson
C. Riles Middle School, who has also worked as an NDA at Dudley Elementary School and as
a substitute NDA at Oak Hill Elementary School. Walker has also previously. worked as a
campus monitor at Riles. CSEA's other NDA witness was Rebecca Anderson (Anderson),
who currently works as an NDA at Dudley and who previously worked as an instructional aide
with the District.
In addition, CSEA put on testimony from Laura Kraft (Kraft), a 10-year
cashier/cafeteria worker, who is CSEA's chapter vice president, negotiations team member,
7

and
job
steward. Kraft testified regarding her communications and contacts with both unit
employees and ND As throughout the District, by virtue
of
her duties as an officer
of
CSEA. In
particular, she testified as to assistance she has provided to classified employees who also work
as ND As. CSEA also presented various exhibits, most
of
which were District documents,
including letters
of
reasonable assurance and performance appraisals issued by District
personnel to NDAs, and job descriptions for various classified unit positions, some
of
whose
duties are similar to, or overlap with, those performed by NDAs. Although the District's
witnesses focused heavily on the differential pay, benefits, rights, and other working conditions
affecting ND As and classified employees by virtue
of
their different treatment under the
Education Code, the testimony
of
the District's witnesses largely confirmed CSEA's evidence
on the essential points relied on by the Hearing Officer. Although the District argues in its
Exception No. 9 that, "there is no NDA job description in the record with which to compare
[their] job duties" to those
of
classified employees, there was relatively little real disagreement
over what duties ND As actually perform. While Walker and Anderson tended to interpret
classified employee job descriptions broadly to emphasize the degree
of
ovedap with NDA
duties, on cross-examination, each testified consistently about what they actually do, most
of
which was never disputed by the District.
The record thus indicates that ND As are regular employees assigned to a 10-month
calendar corresponding to those days when students are present. Like classified employees,
and unlike seasonal, casual or substitute employees, NDAs are not required to reapply for their
positions at the end
of
each school year. In some cases, NDAs have received letters of
reasonable assurance confirming that their employment with the District will continue the
following school year.
8

NDAs have daily and extensive interaction with other District employees, including
classified employees in the following job titles: campus monitors, instructional assistants,
cafeteria workers, and custodians. Most significantly, NDAs are responsible for the direct
supervision
of
the District's students during lunch periods and recesses and during the
breakfast period in those schools that provide morning meals. In carrying out that
responsibility, NDAs necessarily work closely with the campus monitors and instructional
assistants. While NDAs have somewhat less involvement with cafeteria workers and
custodians, they nevertheless regularly perform lunchroom and clean up duties that require
interaction with these classified employees. Significantly, NDAs use radios supplied by the
District to remain in contact with classified employees in the above titles to facilitate their
common task
of
providing a safe, clean and secure campus environment for students. In some
instances, an NDA may even substitute for a campus monitor when other personnel are
unavailable.
NDAs and classified employees also share common supervision by principals and vice
principals. Although there was some testimony that a campus monitor "supervises" ND As at
Wilson C. Riles Middle School, there was no disagreement that such "supervision" was limited
to preparing schedules, making assignments and, at most, talking to an NDA who was not
completing her duties as assigned. More serious concerns or disciplinary matters were left to
the school's vice principal or principal.
The District points to some variation between NDAs and classified employees.
CSEA's unit of classified employees covers a great variety
of
titles, duties, skills, and
qualifications. Although there are some significant distinctions between the pay, duties, hours
and working conditions ofNDAs and those of employees in the classified unit, some of those
differences are less significant than differences within the classified unit. NDAs are paid $9.28
9

per hour, approximately a dollar an hour lower than the contractually-defined starting pay for
child aides, instructional assistants, cafeteria service workers and campus monitors, the lowest
paid
of
the classified employees. The District's Director
of
Personnel and Student Services,
David Grimes (Grimes), testified that, although the contractual pay schedule starts at $10.37
per hour, no current classified employee
of
the District is paid less than $11.17 per hour. At
the other end
of
the scale are several titles earning as much as $23.42 per hour upon
completion
of
at least six years
of
service with the District. Although the contractual pay
schedule includes two more ranges with starting pay as high as $27.67 and $29.90, Grimes
testified that there are no District employees in these series. 	At least with respect to the
current pay scale, NDAs appear to have more in common with some
of
the classified
employees with whom they work most closely.
Similarly, the District rests much
of
its argument on the fact that ND As are not entitled
to the statutorily-guaranteed benefits guaranteed to classified employees by the Education
Code because they are not part
of
the classified service. Yet, with respect to one
of
the most
important
of
such benefits, health insurance, the same sort
of
divide runs not between the
ND As and classified employees but directly through the classified unit itself. Under the
collective bargaining agreement, only those classified employees who work at least 4 hours per
day are entitled to health benefits. Moreover, there was evidence that a sizable part
of
the
current classified unit consists
of
part-time employees, many
of
whom do not have health
benefits at all by virtue
of
the above requirement. Given these great distinctions running
through the existing classified employees, it would be an arbitrary exercise to exclude the
ND As from the unit on the basis of distinctions in pay, hours, or working conditions which
may, ultimately be diminished through collective bargaining.
10

Despite that Castaic was superseded and effectively overruled by legislation, the
District raises essentially the same, supersession concerns previously considered and rejected
by the Board in Pittsburg and Fontana, to conclude that NDAs should not be included in the
classified unit because they are not classified employees under the Education Code. Although
the District contends that the Hearing Officer has mischaracterized its position, under the
District's interpretation
of
the Education Code, NDAs could not, even through collective
bargaining, lawfully achieve any
of
the same or similar rights and fringe benefits currently
afforded to classified employees by the Education Code. The District argues that,
[i]n practical terms, Section 45136 prohibits part-time employees
excluded from the classified service under Section 45103 from
enjoying the rights and benefits conferred on part-time employees
of
the classified service. In essence, this means that part-time,
non-classified employees are not eligible to receive any
of
the
benefits provided by the Education Code to classified employees,
even on a pro-rata basis.
The District concludes that, "In the case
of
the ND As seeking to join a classified bargaining
unit, Education Code section 45136 would preclude them from negotiating any
of
the statutory
benefits granted by Section 45103 even [on
a]
pro-rata basis."
As discussed above, the Pittsburg and Fontana decisions stand for the· proposition that,
although the Legislature chose to exclude part-time playground positions from the classified
service, it did not intend to preclude NDAs either from the rights and protections afforded
other public school employees under EERA, nor, necessarily to preclude the exercise
of
those
rights in a common unit with some or all
of
a public school employer's classified employees.
We therefore reject this exception.
Nevertheless, other exceptions follow from the District's conclusion that ND As can
share no community of interest with classified employees by virtue of their exclusion from the
statutory definition of classified service. Thus, the District argues against including NDAs in
11

the classified unit as "inefficient," because it would require the District to conduct two separate
bargaining sessions at one table. This exception is puzzling in that the District purports to
accept that ND As are entitled to bargain collectively, and thus, it is difficult to discern what,
if
any additional burden may be imposed
if
they do so separately, or at the same table with the
District's classified employees.
In El Monte Union High School District (1980) PERB Decision No. 142, the Board
rejected a similar concern about the inclusion
of
substitute teachers in the same unit with
regular teachers by observing that "negotiation
of
a supplementary agreement' covering the
petitioned for employees imposes no greater burden on the parties than would the negotiation
of
a separate agreement." (Id. at p. 11.) Additionally, the El Monte Board noted that future
negotiations covering all employees in the modified unit presented no greater potential for
disruption
of
the employer's operations than would bifurcated negotiations covering two
separate units. Because "having to negotiate additional provisions
of
an existing contract is
not in and
of
itself disruptive" (Oakland, supra, PERB Decision No. 320, p. 9), and because
the District has pointed to no evidence to suggest that including ND As in the same unit with
classified employees would be any more burdensome than negotiating separately, we reject
this exception as well.
The District also argues that including NDAs in the same unit with classified
employees would negatively impact the District's operations by lowering employee morale, as
the ND As eventually realized that, despite being part
of
the classified unit and paying dues or
agency fees to its representative, they would not derive any particular benefit with respect to
those benefits provided to the classified employees. Although the impact of a unit
determination or modification decision on the efficiency of a school district's operations is one
of the statutory criteria which PERB is required to consider when weighing the various factors,
12

PERB precedent points to the community
of
interest as a weightier factor than the efficiency
of
the employer's operations as determining the effectiveness
of
the representative. (Sweetwater,
supra, EERB Decision No. 4.) In Fontana, the Board observed that in balancing the efficiency
of
the employer's operations against employees' right to effective representation in an
appropriate bargaining unit, PERB "has never found the efficiency factor to outweigh
representation rights." (Fontana, supra, PERB Decision No. 1623, proposed decision at p. 7
and authorities cited therein, emphasis added.) Indeed, in situations in which employees
perform functions for more than one unit, PERB has held that they are entitled to
representation in both units
if
necessary to effectuate their statutory rights to bargain
collectively through a representative
of
their own choosing. ( Oakland, supra, PERB Decision
No. 320, p.
11
and private-sector authority cited therein.)
Even accepting the District's clarifications and corrections to the Hearing Officer's
findings
of
fact, we find nothing in the record that would support a dramatic departure from
decades
of
Board precedent. Accordingly, we affirm the proposed decision.
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, the petition for unit modification by the California School Employees Association & its
Chapter 610 (CSEA) in Case No. SA-UM-821-E is hereby GRANTED.
Pursuant to Educational Employment Relations Act section 3545, subdivision (a), and
Public Employment Relations Board (Board) Regulations, the Board adds the following job
classification to the existing classified bargaining unit represented by CSEA: all noon duty
aides employed by Center Unified School District.
Chair Martinez and Member Huguenin joined in this Decision.
13

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CENTER UNIFIED SCHOOL DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 610,
Exclusive Representative.
REPRESENTATION
CASE NO. SA-UM;.821
PROPOSED DECISION
(03/05/2014)
Appearances: Roderick D. Gaulman for California School Employees Association & its
Chapter 610; Atkinson, Andelson, Loya, Ruud & Romo,
by
Fennin Villegas, for Center
Unified School District.
Before Jonathan Levy, Hearing Officer.
PROCEDURAL HISTORY
The California School Employees Association & its Chapter 610 (CSEA) is the
exclusive representative
of
a wall-to-wall classified bargaining unit comprised
of
Center
Unified School District (District) classified employees. On October 29, 2012, CSEA filed a
Petition for Unit Modification (Petition) with the Public Employment Relations Board (PERB
or Board) seeking to include the position commonly referred to as "Noon Duty Aide" (NDA)
in the CSEA-represented classified bargaining unit (Unit).
On November 19, 2012, the District filed its response to CSEA's Petition, requesting
that the Petition be denied. On December 5, 2012, the District filed a second response to
CSEA's Petition, maintaining the same position concerning CSEA's Petition. At all times
relevant herein, the District's position has been that it recognizes that NDAs have
representation rights, but that it is not appropriate to add the NDAs to the classified Unit.
On January 24, 2013, PERB conducted an informal settlement conference with

representatives
of
CSEA and the District present. The parties, however, were unable to resolve
this matter.
On April 15-16 and May 14, 2013, PERB conducted a formal hearing where all sides
were given the opportunity to present evidence, examine, and cross-examine witnesses.
CSEA's witnesses were as follows: 	Laura Kraft (Kraft) is CSEA's Chapter Vice President and
a Food Service Worker, 1 a classified position, at Dudley Elementary School (Dudley); Melissa
Walker (Walker) is an NDA employed at Wilson C. Riles Middle School (Wilson C. Riles);
and Rebecca Anderson (Anderson) is an NDA employed at Dudley. The District's witnesses
were as follows: 	Lisa Coronado (Principal Coronado), Principal at Dudley; Joyce Frisch
(Principal Frisch),2 Principal at Wilson C. Riles; David Grimes (Grimes), District Director
of
Personnel and Student Services and former Principal at Oak Hill Elementary School (Oak
Hill); Debbie Winckler (Winckler), Personnel Technician for Classified Employees; and
Kristina Desgrange (Desgrange), Payroll Technician for classified employees.
On July 22, 2013, CSEA filed a post-hearing brief.3 On August 26, 2013, the District
filed a post-hearing brief.
FINDINGS
OFF
ACT
The District is comprised
of
two high schools, one middle school, four elementary
schools, two charter schools, one adult school, and one preschool. CSEA is the exclusive
representative
of
the District's classified employees; which includes, but is not limited to, the
1 The titles or classifications Food Service Worker and Cafeteria Worker are used
interchangeably.
2 The Hearing Officer discovered midway through Principal Frisch's testimony that she
had been one of the Hearing Officer's elementary school teachers. This association was
disclosed to the parties. Neither party filed or made any objection or motion based on this
information.
3 On July 5, 2013, CSEA requested and was granted a one-week extension of time to
file CSEA's post-hearing brief, originally due on July 15, 2013, and extended to July 22, 2013.
2

following classifications: Instructional Assistant, Child Aide, Library Technician, Clerk,
Secretary, Technology Specialist, Groundskeeper, Maintenance Worker, Bus Driver,
Mechanic, Cafeteria Worker, Custodian, and Campus Monitor.
	By
the subject Petition,
CSEA
seeks to add approximately 37 NDAs to the CSEA-represented Unit.
I.
	Noon Duty Aides
ND
As
are an integral part
of
the District's operations in that they provide direct
supervision
of
students during the lunch period and during breakfast periods at school sites that
provide morning meals. NDAs provide this service in eating areas and in playground areas.
NDAs monitor student behavior, help students line up to obtain lunch from Cafeteria Workers,
seat students at lunch tables, help students open milk/food containers, check to ensure that
students select a salad
or
fruit option, instruct students with cleaning and disposing
of
lunch
waste, and provide students with napkins. NDAs escort students from lunch areas to
playground areas where they continue to monitor students. ND As observe students after they
have finished lunch and before they return to their classrooms.
If
a student misbehaves, ND As
may notify the student's teacher. ND As also ensure that playground equipment/play materials
are set up, such as tether balls and jump ropes.
If
it
is raining, ND As perform the same or
similar duties under the cover
of
shelter. At Dudley, ND As encourage students to pick up litter
in exchange for an award
of
"Dudley dollars." Some NDAs pick up litter and/or clean up
spills; however, all staff are encouraged to beautify the campus and set a good example for
students. At Wilson C. Riles, ND As will generally tell students to pick up litter, because it is
considered part
of
the students' responsibility. NDAs, however, will also pick up litter. When
larger spills occur, Custodians respond to those spills. If a student is hurt, an NDA will notify
the appropriate people and aide the student as he or she can until appropriate personnel arrives.
NDAs help maintain a safe school environment.
3

ND As have access to staff break rooms, staff restrooms, and the parking lot. The
District's school sites provide a mailbox to NDAs where the District places flyers, school
calendars, and completed copies
of
time cards used by NDAs.
NDAs interact with Unit employees such as Campus Monitors, Cafeteria Service
Workers, Custodians, and Instructional Assistants, as these positions also perform duties
during lunch times and other times in which ND As perform work. To the extent that a student
misbehaves, an NDA may interact with Instructional Assistants, as well as certificated
employees to inform them
of
the behavioral issue. ND As and Campus Monitors often
communicate via two-way radios; e.g., to report that a child is injured or to report physical
altercations. At Wilson C. Riles, a Campus Monitor prepares the schedules for NDAs. ND As
interact with Custodians to communicate that a spill has occurred or that the NDA has
otherwise noticed that custodial service is needed.
At two school sites, either the Principal or Vice Principal will meet with the ND As at
least once a month to "check in" and see
if
there are any concerns. Recently, the District
conducted a two-day anti-bullying training called "Healthy Play," and all District employees,
including certificated staff, classified staff, and ND As, attended. In addition, Dudley Principal
Coronado required NDAs to watch a video concerning school site lockdown procedures.
At least two years ago, Dudley Principal Coronado developed a handbook for newly
hired NDAs. Principal Coronado would have new NDAs take 30 minutes to review the
handbook and she would generally make the handbook available to employees. When Director
of
Personnel Grimes was the Principal at Oak Hill, he created a handbook for ND As, last
revised in July 2005.
There are no District-wide qualifications to become an NDA. Only the most basic
employment requirements are required of ND As; e.g., fingerprinting for a criminal background
4

check, tuberculosis (TB) screening, and a physical examination when necessary. These
requirements are imposed on all District employees and volunteers.4
The hiring process for
ND As is less formal and more decentralized than the hiring process for classified employees.
The recruitment
of
ND As is generally a school-site-by-school-site process where, usually, a
school site Principal either places a
job
posting at the school site or sends flyers home with
students inviting parents and others to apply. 	School site Principals conduct infonnal
interviews; then,
if
an applicant is suitable
by
the Principal's estimation, the applicant fills out
necessary forms and a background packet. The District's Personnel Office processes an
applicant's TB test results and fingerprint screening as required
of
any employee
of
the
District. The Personnel Office then infonns a school site Principal that these prerequisites
have been met
so that the Principal can hire the applicant
ifhe
or she chooses to do so.
NDA
applicants can apply and receive a
job
offer within one-to-two weeks.
NDAs are paid $9.28 per hour
of
work. NDAs must complete a time card for all hours
worked and submit their time cards to the District Payroll Office
by
the 19th day
of
each
month and are paid on the 10th day
of
the following month. ND As may elect for direct
deposit. ND As do not receive District-provided benefits or benefits pursuant to the Education
Code.
NDAs work approximately two hours a day, five days a week during the ten-month
period while students are in attendance. ND As have set work hours, but are occasionally
absent and make informal arrangements to cover for each other. For example, NDA Anderson
4 District Administrative Regulation 4200 provides:
Persons hired solely for purposes which are exempted from the classified
service shall nevertheless fulfill the obligations
of
classified employees related
to physical examinations pursuant to Education Code 45122, fingerprinting
pursuant to Education Code 45125, and tuberculosis tests pursuant to Education
Code 49406.
5

has a second job at Kohl's and her hours there sometimes conflict with her assigned NDA
hours. On those occasions where there is a conflict in hours, Anderson will usually get another
NDA to cover for her.
At Wilson C. Riles, on occasion, some
of
the duties performed by the Campus Monitor
position have been covered by NDA Cindy Webb. Some ND As also work as substitutes for
classified positions. When an NDA performs the work
of
a classified position in this official
substitute capacity, the NDA fills out a separate time card for substitute hours paid at the
higher substitute rate than their regular NDA rate.
As at-will employees, NDAs do not generally have a continued expectation
of
employment. Whether an NDA returns to work after the conclusion
of
a school year is a
matter handled infonnally on a school site basis. The District issues a Notification
of·
Reasonable Assurance (Letter
of
Assurance) concerning classified employees' continued
expectation
of
employment. The purpose
of
a Letter
of
Assurance is to lessen the District's
exposure to unemployment claims. Letters
of
Assurance issued on April 12, 2011, to NDA
Anderson and NDA Vickie Hesson (Hesson).
Generally, NDAs are supervised by and report to a combination
of
Campus Monitors,
Vice Principals, and Principals. At some school sites, the Can1pus Monitor acts as the lead for
NDAs and sets work schedules and work assignments. Campus Monitors do not have
authority to discipline or tenninate ND As. ND As may be disciplined or dismissed from
District employment at any time. School site Principals have the authority to discipline ND As.
NDAs are not evaluated on a regular basis as there is no obligation to evaluate NDA
employees. Principal Coronado, however, has evaluated some of her ND As. Principal
Coronado did not submit those evaluations to the District and does not plan on evaluating
NDAs again. The NDA evaluations that were performed utilized the evaluation fonn created
6

for classified employee evaluations. Principal Coronado conducted the NDA evaluations
because she thought it would be a good discussion starter and it would let those employees
know how they were doing.
Approximately four to six classified employees are also employed as NDAs. For these
four to six employees, all hours worked, both classified and NDA hours, combine and are
treated as classified work hours. Approximately five
of
these duel ND A/classified employees
were added to the Unit in March 2010 pursuant to a Unit Modification Order in PERB
Representation Matter No. SA-UM-793-E (2010 Unit Modification).
II. 	Classified Employees
The hiring qualifications and requirements for classified employees, include: a high
school diploma or equivalent; there are also experience requirements such as experience in
youth related activities for Campus Monitors, prior experience with school age children for
Instructional Assistants, and prior job related experience for Custodians. 5 The Campus
Monitor at Wilson C. Riles has received peer mediator training, as well as training concerning
proper methods
of
restraining students. Food Service Workers are required to have a Serv Safe
Certification within two years
of
being hired and are required to demonstrate proficiency in
making change in the role
of
a Cashier and sanitary food handling practices. Instructional
Assistants must have a No Child Left Behind (NCLB) certification or pass
·a
test demonstrating
certain competencies before being hired.
For vacant or soon-to-be vacant classified Unit positions, the Personnel Office informs
a school site Principal
of
an opening, the Personnel Office conducts a paper screening
of
applicants, sets up an interview panel of individuals with an interest in the position (e.g.,
5 CSEA, for the most part, limited its presentation of classified positions alleged to have
similarities to the NDA position to the Campus Monitor, Cafeteria Worker, Custodian, and
Instructional Assistant classifications.
7

school site Principal where the vacancy is or will be), then the Principal provides his or her
recommendation to the Personnel Office. The Personnel Office then checks the applicant's
references. The hiring process for classified employees is centralized through the District's
Personnel Office. Classified positions are advertised centrally through postings coordinated by
the Personnel Office and, while Principals are involved, the ultimate decision to hire is not
solely left to a school site Principal.
Classified employees are paid based on a salary schedule, their classification, and their
length
of
service. Classified employees are paid on the last day
of
each month. Classified
employees do not submit a time card to be paid unless they have performed overtime or extra
duty work. Currently, the lowest paid classified employees-Child Aides, Instructional
Assistants, Cafeteria Workers, and Campus
Monitors-earn
approximately $11.17 per hour.
Classified employees may elect for direct deposit and are paid once a month.
Classified employees receive benefits pursuant to the Education Code and receive
health benefits
if
they work at least four hours per day pursuant to Article XX
of
the
CSEA/District Collective Bargaining Agreement (CBA). The Education Code entitles
classified employees to a set amount
of
sick leave, extended illness leave, vacation benefits,
layoff protections, pennanency, and a right to a hearing before dismissal.
With respect to the scheduling
of
work hours, classified employees are not allowed to
have other outside jobs that interfere with their work hours. Some classified positions that
provide direct services to students, such as Instructional Assistants and Cafeteria Workers,
work a ten-month calendar. Other classified employees, including but not limited to
Custodians and administrative office employees work 12 months out of the year.
Classified employees receive Letters of Assurance annually when their employment
with the District is expected to continue.
8

Permanent classified employees are evaluated every two years according to an
evaluation schedule that is kept by the District Office.
Classified employees are entitled to certain rights and protections and may only
be
disciplined pursuant to procedures contained in the Education Code.
ISSUE
Is it appropdate to add the Noon Duty Aid employees, which are not otherwise also
employed in a classified position, to the CSEA Unit?
CONCLUSIONS OF LAW
A. 	Noon Duty Aides' Rights Pursuant to EERA
Before proceeding to an analysis
of
whether it is appropriate to add ND As to the
classified Unit, it must first be determined that NDAs have Educational Employment Relations
Act (EERA)-protected6 representation rights and are not otherwise barred from being included
in a classified bargaining unit.
1.
	NDAs' EERA Representation Rights
NDAs' rights pursuant to EERA, the Education Code,7 and applicable PERB decisions
revealed the following relevant information.
6 EERA is codified at Government Code section 3540 et seq.
7 It is well-settled law that when enforcing the EERA, PERB must occasionally
interpret sections
of
the California Education Code. (San Mateo City School Dist.
v.
Public
Employment Relations Bd. (1983) 33 Cal.3d 850, 864-865, accord, Healdsburg Union High
School District and Healdsburg Union School District/San Mateo City School District (1984)
PERB Decision No. 375.) When undertaking the necessary function
of
interpreting statutes,
the intent
of
the Legislature should be examined in order to effectuate the purpose
of
the law.
(Long Beach Community College District (2003) PERB Decision No. 1564 [ovem1led in part
on other grounds, Long Beach Community College District (2009) PERB Decision No. 2002,
citing Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 (Moyer)].) Where
no ambiguity exists, the intent of
tl1e Legislature in enacting a law is to be gleaned from the
words of the statute itself, according to the usual and ordinary import of the language
employed. (Noroian
v.
Department
of
Administration, Public Employees' Retirement System
(1970) 11 Cal.App.3d 651,654, hg. den.) However, in determining intent, it is important to
9

a. 	Pittsburg Unified School District ( 1976) EERB Decision No. 3
The present legal issue was first addressed in Pittsburg Unified School District (1976)
EERB Decision No. 3 (Pittsburg). 8 In Pittsburg, the union filed a Request for Recognition
petition, which was followed
by
various other related filings including an Intervention petition
by
another employee organization. (Ibid.) The union later amended its Request for
Recognition petition to include "noon-duty supervisors" in its proposed unit. (Ibid.)
The Board held:
[W]e do not view Section 13581
of
the Education Code,l l9 which specifically
excludes "Noon Time Playground Supervisor" from the classified service, as
precluding employees so designated from the exercise ofrights guaranteedin
this Act. In our view, this section
of
the Education Code must be considered in
conjunction with the definition
of
employee contained in the Act. Employee is
defined in the Act
as"
...
any person employed
by
any public school employer
except persons elected by popular vote[,] persons appointed by the Governor
of
this state, management employees, and confidential employees." This definition
is not limited in any way to certificated employees or employees in the
classified service.
. . . Thus, as regularly scheduled part-time employees who perform similar
duties. The
job
description
of
noon-duty supervisor is virtually identical to that
of
campus aide; the pay schedule is identical to the first step
of
the Class I rates
of
the aide schedule; and like other paraprofessional employees they are selected
by
the principal. [Like other employees who do not work a sufficient number
of
hours to qualify, they] are excluded from fringe benefit coverage. We conclude,
therefore, that rioon-duty supervisors should
be
included in the paraprofessional
unit.
examine the language
of
the statute and to give effect to each word. (Moyer.) 	It is also a
fundamental rule
of
statutory construction that a statute must be construed in context, "keeping
in mind the nature and obvious purpose
of
the statute where they appear." (Ibid.) "The
various parts
of
a statutory enactment must be hannonized by considering the pruiicular clause
or section in the context
of
the statutory framework as a whole." (Ibid.)
8 Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB). 	.
9 Education Code section 13581 was renumbered to section 45103, effective April 30,
1977.

(Ibid.) The Board held in Pittsburg that despite the language in Education Code section 45103
(formerly 13581) specifically excluding noon-duty supervisors from classified service, these
employees may be considered "public school employees" within the meaning ofEERA.
(Pittsburg, supra, EERB Decision No. 3; see also Fresno Unified School District (1979) PERB
Decision No. 82, footnote 10.)
b. 	Healdsburg Union High School District and Healdsburg Union
School District/San Mateo City School District (1984) PERB
Decision No. 375
After Pittsburg, supra, EERB De~ision No. 3, the Board issued Healdsburg Union
High School District and Healdsburg Union School District/San Mateo City School District
(1984) PERB Decision No. 375 (Healdsburg), on remand from the California Supreme Court
pursuant to its order in San Mateo City School District et al.
v.
Public Employment Relations
Bd. (1983)
33
Cal.3d 850. The Board in Healdsburg held that with respect to a bargaining
proposal concerning short-term employees, the union was the exclusive representative
of
classified employees; and pursuant to Education Code section 45103, short-term employees are
expressly excluded from the classified service. The Board held, "Hence, these proposals do
not concern positions over which CSEA has authority to negotiate." (Ibid.)
c. 	Assembly Bill 2849
In 2002, Education Code section 45103 was amended (Stats. 2002, c. 1100 [A.B.
2849]) to add subdivision (b)(4), stating:
Part-time playground positions shall not be a part
of
the classified service,
where the employee is not otherwise employed in a classified position. Part-
time playground positions shall be considered a part
of
the classified service
when the employee in the position also works in the same school district in a
classified position.
The Legislative Counsel's Digest concerning A.B. 2849 provides the law at that time "exempts
part-time playground positions from the classified service
....
This bill would instead provide
11

that part-time playground positions are not part
of
the classified service unless the employee
...
is otherwise employed in a classified position." (2002 Cal. Legis. Serv. Ch. 1100 [A.B.
2849].) A.B. 2849 was enacted with the caveat that,
"It
is the intent
of
the Legislature that, by
granting classified service status to employees who serve in part-time playground positions and
who also work in the same school district in a classified position, parents and guardians who
volunteer in playground positions are not discouraged from volunteering."
10
(Ibid.)
d. 	Fontana Unified School District (2004) PERB Decision No. 1623
Thereafter, the Board issued Fontana Unified School District (2004) PERB Decision
No. 1623 (Fontana), wherein it addressed exceptions to a Board agent's Proposed Decision
concerning a Unit Modification petition seeking to add all NDAs to the wall-to-wall classified
bargaining unit. The Board adopted the Board agent's Proposed Decision which determined
that those ND As shared a sufficient community
of
interest with other employees in the
classified bargaining unit to warrant their inclusion in the classified bargaining unit. (Ibid.)
The Proposed Decision states that it is undisputed that ND As are excluded from classified
service pursuant to Education Code section 45103. (Ibid.) Citing to Pittsburg, supra, EERB
10
A review
of
the bill analysis reveals that in the 1999-2000 Legislative Session, prior
attempts were made concerning the modification
of
this subject language. In 2000, A.B. 1780
proposed to remove the exclusion entirely and make all part-time playground positions
classified employees; Governor Gray Davis, however, vetoed the bill, stating:
While I appreciate this bill's effort to provide better benefits for part-time
playground monitors, this bill would mandate substantial increased costs to
school districts. I am concerned that requiring school districts to designate all
part-time playground monitors as classified employees would usurp the ability
oflocal school districts to set personnel policies that best meet their individual
needs.
The legislative effort to remove entirely the prohibition against public school employees like
ND As from becoming part
of
the classified service was not successful and is not the current
state
of
the law. With this history at hand, the current law must be read so as to interpret its
words as going just far enough to include employees in classified service that are employed in
both a classified position and an NDA position, but no further.
12

Decision No. 3, the Proposed Decision states that the Board has held that the exclusion in
Section 45103 "does not preclude these employees from the exercise
of
rights under the Act."
(Fontana, supra, PERB Decision No. 1623
.)
The Proposed Decision held that
"any
difficulty
negotiating over contract provisions applicable to noon duty aides does not outweigh their right
to representation." (Ibid.)
e. 	Castaic Union School District (2010) PERB Order No. Ad-384
In 2010, the Board again considered this issue in Castaic Union School District (2010)
PERB Order No. Ad-384 (Castaic), where a Unit Modification petition was filed seeking to
add part-time playground monitor
positions-also
referred to as
NDAs-to
the wall-to-wall
classified bargaining unit. The Board agent's Administrative Determination in Castaic found
that a community
of
interest had been demonstrated and ordered that the bargaining unit
be
modified to include the NDAs. The Board agent denied the school district's request for a
formal hearing and issued an Administrative Determination based on the parties' written
positions. (Ibid.) An appeal was filed with the Board and the Board determined that the Board
agent's Administrative Determination and grant
of
the Unit Modification petition was
inappropriate based on two independent reasons: 	1) the subject NDAs may not
be
placed in a
classified bargaining unit because they are not public school employees pursuant to EERA; and
2) the Board agent's community
of
interest determination may not stand as it was based solely
on findings in prior decisions rather than on evidence supporting a community
of
interest in
that specific case. (Ibid.)
The Board in Castaic, supra, PERB Order No. Ad-384, held that pursuant to BERA at
that time, only certificated or classified employees have representation rights. EERA section
3540.1, subdivision (j) provided, "'Public school employee' or 'employee' means any person
13

employed by any public school employer [with exceptions not relevant hereto]." (Ibid.)
EERA section 3540.1, subdivision (e), at that time, provided:
"Exclusive representative" means the employee organization recognized or
certified as the exclusive negotiating representative
of
certificated or classified
employees in an appropriate unit
of
a public school employer.
(Emphasis added.) Based on a reading
of
these two sections, the Board held in Castaic that,
"We interpret the plain language
of
the statute to mean that an exclusive representative may
only represent a bargaining unit
of
certificated or classified employees and, therefore, cannot
represent employees who do not fall into one
of
those two categories." The Board
concluded-relying on Healdsburg, supra, PERB Decision No. 375 for the proposition that
"CSEA had no authority to bargain on behalf
of
short-term employees because they were
statutorily excluded from the classified service" by Education Code section
45103-that,
like
short-tenn employees, ND As do not have representation rights under EERA. (Castaic, supra,
PERB Order No. Ad-384; emphasis added.) The Board concluded that pursuant to the stated
intent
of
A.B. 2849, quoted-above, the Legislature intended to extend "the classified status
of
classified employees who perfom1 some playground duty but also continued to encourage
community members to volunteer for pmi-time playground positions." (Ibid.) The Board
continued by explicitly overruling Pittsburg, supra, EERB Decision No. 3 and Fontana, supra,
PERB Decision No. 1623, but limited the application
of
its decision to apply prospectively.
(Castaic, supra, PERB Order No. Ad-384.)
f.
	A.B. 501
In 2011, EERA section 3540.1, subdivision (e) was amended (Stats. 2011, c. 674 [A.B.
501]) to read as follows
11
:
"Exclusive representative" means the employee organization recognized or
certified as the exclusive negotiating representative of certificated or classified
11
Strikethrough text indicates deletions while underlined text indicates additions.
14

en1ployees
in
an appropriate unit
of
a public school employer public school
employees, as "public school employee" is defined
in
subdivision {j),
in
an
appropriate unit
of
a public school employer.
Seemingly, the effect
of
the 2011 amendment to EERA section 3540.1 is that any person
employed
by
a public school employer, but for exceptions
not
pertinent hereto, (EERA, §
3540. l(j))
may be
represented
by
an exclusive representative. This amendment appears to
repeal
or
overturn the holding
of
Castaic, supra, PERB Order No. Ad-384, concerning the
representation rights
of
ND
As.
2. 	The Parties' Positions
a.
	CSEA's
Position
CSEA asserts that in this case PERB should rely on Fontana, supra, PERB Decision
No. 1623 (citing to Monterey Peninsula Community College District (1978) PERB Decision
No. 76) and Pittsburg, supra, EERB Decision No. 3. In Fontana, PERB held that on the facts
presented in that specific instance, those NDAs could
be
placed in a wall-to-wall classified
bargaining unit. CSEA contends that the District's reliance on Castaic, supra, PERB Order
No. Ad-384 is misplaced as that decision
was-holding
that ND As have no
representation
rights as EERA then-provided that exclusive representatives
may
only represent certificated or
classified employees under Section
3540.1-repealed or overturned in 2011 by A.B. 501,
which established that all public school employees are covered under EERA.
b. 	The District's Position
The District asserts that Education Code section 45103 specifically excludes NDAs
from classified service where the employee is not also employed in a classified position and
that employees excluded from classified service are not entitled to the benefits conferred to
part-time employees under Education Code section 45136. The District asserts that, "Because
ND As cannot, by statute, negotiate for any level
of
the types of statutory benefits provided to
15

classified employees, it would seem that this alone would defeat finding any community
of
interest between noon duty aides and classified employees." The District asserts that reliance
on Castaic, supra, PERB Order No. Ad-384 is appropriate here and that A.B.
501
did not
abrogate the entire Castaic decision.
3. 	Conclusion: Representational Rights
The current status
of
this legal issue appears to be
as
follows. EERA section 3 540
.1
provides,
by
definition, representation rights to all public school employees who are not
otherwise statutorily excluded. ND As, as employees
of
a public school and not statutorily
excluded, are covered by EERA and have representation rights.
Currently, Education Code section 45103 provides, in relevant part:
(a) The governing board
of
any school district shall employ persons for
positions not requiring certification qualifications. The governing board shall
...
classify all
of
these employees and positions. The employees and positions
shall be known as the classified service.
(b)(
4}
Part-time playground positions[lZJ shall not be a part
of
the classified
service, where the employee is not otherwise employed in a classified position.
Part-time playground positions shall be considered a part
of
the classified
service when the employee in the position also works in the same school district
in a classified position.
(c) Unless otherwise permitted, a person whose position does not require
certification qualifications shall not be employed by a governing board, except
as authorized by this section.
The Education Code makes clear that ND As not also employed in classified positions
shall not be part
of
the classified service and, therefore, shall not receive the statutory rights
and benefits expressly provided to classified employees by the Education Code. Based on the
relevant precedent, evolution
of
pertinent Education Code sections, and EERA, it does not
12
Both parties agree that Education Code section 45103, subdivision (b ), using the term
"playground positions," excludes ND As who do not also hold a classified position from the
classified service.
16

appear that there is a prohibition
of
bargaining units comprised
of
classified and
NDA
employees
if
substantial mutual community
of
interest is demonstrated.
B. 	Appropriateness
of
Unit
Having detennined that ND As are not barred from being placed in a classified unit, it
must
be
detennined that the proposed unit modification is appropriate based on the following
factors. 	EERA section 3545, subdivision {a) provides:
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.
Therefore, in determining whether a unit is an appropriate unit, PERB balances: {1) the
community
of
interest
of
employees; (2) the established practices; and {3) the effect
of
the size
of
the unit on the efficient operations
of
the employer.
Where, as here, the existing unit is a wall-to-wall unit and not a Sweetwater unit,
13
the
proper inquiry is whether the requested unit configuration is an appropriate
unit-not
whether
it
is 	appropriate than the existing unit configuration. (Long Beach Community College
District (1999) PERB Decision No. 1315.)
In determining whether there is a community
of
interest, PERB considers multiple
factors, including the extent to which employees share: education and qualifications; training
and skills; job functions; method
of
wages or pay schedule; hours
of
work; fringe benefits;
supervision; frequency
of
contact with other employees; integration with work functions
of
other employees; interchange with other employees; and other related factors. {See, e.g.,
In Sweetwater Union High School District (1976) EERB Decision No. 4, PERB
established three presumptively appropriate bargaining units for classified employees
of
school
districts.
17

Elk Grove Unified School District (2004) PERB Decision No. 1688.) The overriding
consideration is whether the employees share substantial mutual interests in matters subject to
meeting and negotiating. (Fontana, supra, PERB Decision No. 1623; San Diego Community
College District (2001) PERB Decision No. 1445; Monterey Peninsula Community College
District, supra, PERB Decision No. 76.) Unit determinations are based upon the actual work
performed
by
the incumbents. (Hemet Unified School District (1990) PERB Decision
No. 820.)
The point
of
this inquiry then is whether ND As and classified employees share
substantial mutual interests in consideration
of
the totality
of
circumstances presented here.
(Monterey Peninsula Community College District, supra, PERB Decision No. 76.)
1.
	The Parties' Positions
a. 	CSEA's Position
CSEA asserts, in this case, that based on the "traditional community
of
interest factors,
it is clear that a community
of
interest exists
...
under Fontana[.]" CSEA asserts that pursuant
to Fontana, supra, PERB Decision No. 1623, the fact that NDAs are not entitled to the benefits
and rights under the Education Code does not preclude a finding
of
a community
of
interest
between them and the Unit employees. CSEA asserts that a community
of
interest is
demonstrated by comparing NDAs' work to the work performed by four classified positions:
Campus Monitor, Cafeteria Worker, Custodian, and Instructional Assistant.
b. 	The District's Position
The District asserts that the facts presented in this case do not demonstrate that NDAs
share a substantial mutual interest with the classified employees. The District asserts that
adding NDAs to the classified bargaining unit would be inefficient because the parties would
18

necessarily need to maintain two separate bargaining sessions at the same table and speculates
that this unit modification would negatively impact morale.
2. 	Job Functions
Just like Campus Monitors, NDAs monitor students' behavior during lunch and
breakfast periods in cafeterias and on playgrounds. 	Like Campus Monitors,
if
students
misbehave during these times, NDAs may notify the student's teacher. Like Campus
Monitors, ND As make sure that students properly use playground equipment and, during their
work times, watch for instances where students have a health or medical condition, such as
injuries on the playground.
If
students are seen misbehaving in restrooms, NDAs will pull
students out
of
restrooms, as would a Campus Monitor. The Campus Monitor job description
demonstrates that Campus Monitors, siinilar to ND As, have the basic responsibility to
"supervise students
...
and patrol hallways, restrooms, parking lots, and other areas
of
the
school campus." Some
of
the typical duties
of
Campus Monitors are similar to the work
performed by NDAs, including supervising students in areas where students gather such as
hallways and cafeterias.
The Custodian job description demonstrates that Custodians have the basic
responsibility
of
performing "a variety
of
cleaning and custodial functions at assigned site( s)
for the purpose
of
maintaining safe and sanitary site building/facility[.]" Custodians are
required to perform duties such as responding to emergency cleanups and spills. Similarly, but
to a lesser extent, NDAs' work includes cleaning up minor spills and they otherwise engage in
picking up litter to beautify and maintain a safe and sanitary school site.
The Instructional Assistant job description demonstrates that Instructional Assistants
have the basic responsibility of supervising students. Like Instructional Assistants, ND As are
responsible for the supervision of students.
19

The Cafeteria Worker job description, which is generally applicable to a variety
of
Cafeteria Worker positions, describes the basic responsibilities
of
Cafeteria Workers as, "assist
with a variety
of
cooking, baking, preparing and serving food items
...
maintain facilities and
equipment in safe and sanitary condition
...
[o]perate the [D]istrict's computerized point
of
sale system & handle cash and check transactions." Only Lead Cafeteria Worker employees
handle food in the kitchen. ND As working in the same general areas monitor students while
they are eating. ND As do not prepare or assist in the preparation
of
food or handle money.
NDAs will carry the bins
of
extra food or milk to the food storage area for secure and sanitary
storage, assisting Cafeteria Workers.
3. 	Supervision and Discipline
Campus Monitors act as supervisors to or leads for NDAs, often preparing work
schedules and assignments. Campus Monitors report to school site principals as do ND As at
some school sites. Just like Campus Monitors, Principals at individual school sites have the
authority to supervise and discipline NDAs.
Custodians report to the Director
of
Maintenance, Operations and Transportation.
Like many ND As, Instructional Assistants' supervisors are school site Principals, but
Instructional Assistants also receive day-to-day direction from certificated teachers. Just like
NDAs, Instructional Assistants are generally supervised by school site principals who have the
authority to discipline these employees.
The job description for Cafeteria Worker under the Food Service classification series
states that these classified employees report to and are supervised by the Nutrition Services
Supervisor.
20

4. 	Education, Training, Qualifications
The job description for Campus Monitor requires: High School Diploma or equivalent;
experience in youth related activities; California Driver's License and evidence
of
insurability;
complete hepatitis vaccine series; and drug test clearance.
The Custodian job description requires: High School Diploma or equivalent; prior
job
related experience in school or institutional settings; and a valid California Driver's License
and evidence
of
insurability.
The Instructional Assistant job description includes the following education and
experience requirements: High School Diploma or equivalent; prior job related experience
with school age children; and to pass an exam indicating NCLB compliance or demonstrate
that they have an Associate
of
Arts degree.
The Cafeteria Worker job description requires: a High School Diploma or equivalent;
pass the California Food Handlers Card training within six months
of
employment; become
Serv Safe certified within two years
of
employment; and drug test clearance. Testimony at the
fonnal hearing was elicited indicating that generally only lead positions handling food are
required to obtain a food handlers card and Serv Safe certification.
Like Campus Monitors, Custodians, Instructional Assistants, and Cafeteria Workers,
NDAs are required to meet the minimum District hiring qualifications by having a TB test and
criminal background check. The education, training and qualifications required
of
classified
employees are more rigorous than the requirements for ND As. NDAs, as well as all other
school site District employees, have been required to attend at least two days
of
anti-bullying
training.
21

5. 	Interaction with Classified Employees
NDAs and Campus Monitors routinely and substantially interact in the performance of
their job duties. NDAs communicate, by radio or in person, with Campus Monitors to infonn
them of safety issues, injured students, and when physical altercations occur. At least at one
school site, the Campus Monitor is the lead for ND As and sets their schedules and work
assignments and deals with minor NDA issues. Further, when the Campus Monitor is absent at
Wilson C. Riles, an NDA covers those work duties. NDAs interact with Custodians to inform
them of spills that require cleanup. If a student misbehaves, ND As interact with Instructional
Assistants to inform them of the behavioral issue. ND As and Food Service workers generally
interact in cafeteria areas and work together to complete meal service. NDAs have access to
staff break rooms and restrooms and may generally interact with other employees in those
areas.
6. 	Hiring Process
The hiring process for classified positions is centralized through the District Personnel
Office.
The hiring process for ND As is a much less formal process decentralized from the
District's Personnel Office, and is generally left to individual school sites to conduct
recruitment and hiring. The only centralized components of the NDA hiring process are ones
shared by all District employees: criminal background screening and TB testing.
7. 	Wages and Benefits
The lowest paid Campus Monitor earns $11.17 per hour. The lowest step on the pay
scale for Custodians is $13 .28 per hour. The lowest paid Instructional Assistant earns $11.17
per hour. The lowest rate of pay for Food Service classifications is $11.17 per hour.
22

Classified employees are paid based on salary schedules, classification, and length
of
service; are paid on the last day
of
each month; and may elect to use direct deposit. Classified
employees only submit time cards
if
they perform overtime or extra duty work. Classified
employees may be entitled to benefits pursuant to the Education Code and receive health
benefits
if
they work at least four hours a day pursuant to the CBA. Classified employees are
entitled to,
by
the Education Code, sick leave, extended illness leave, vacation benefits, layoff
protections, permanency, and a hearing before dismissal.
ND As are paid $9 .28 per hour, are paid on the 10th day
of
each month, may elect to use
direct deposit, and must report all hours worked
by
submitting time cards
by
the 19th day
of
each month.
8.
	Work Hours
Similar to ND As, Campus Monitors are generally present during the 10-month
academic year. Custodians work approximately 12 months a year. Instructional Assistants
work
during the same ten-month period that NDAs work. Generally, like NDAs, Food Service
classifications work during the IO-month academic year.
9. 	Expectation
of
Continued Employment
For classified employees, when they are expected to continue as District employees,
they receive an annual Letter
of
Assurance. Further, classified employees are entitled to
certain rights provided for by the Education Code, which include permanency requirements
and layoff hearing processes.
ND As are at-will employees and do not have the permanency and lay off rights that
classified employees are entitled to. Despite the at-will status, many ND As have been
employed for long periods of time. It appears that the continuation
of
an ND A's employment
is handled at the school site level on an informal basis between Principals and their ND As.
23

It has been established, however, that two Letters of Assurance were issued on
April 12, 2011 to two NDAs. NDAs do not have an expectation of continued employment
except for the two instances in which of Letters of Assurance were issued.
10. 	Evaluations
Pennanent classified employees are evaluated every two years pursuant to an
evaluation schedule maintained by the District. A standard classified employee evaluation
form is used.
There is no such evaluation requirement or schedule for ND As. However, Principal
Coronado has evaluated some NDAs, but those evaluations were not relayed to the District.
The classified employee evaluation fom1 was used for those NDA evaluations.
11. 	Conclusion: Community of Interest
CSEA requests that approximately 37 NDAs be added to the Unit based on the
similarities and community of mutual interests demonstrated by comparing ND As with four
classified positions: Campus Monitor, Cafeteria Worker, Custodian, and Instructional
Assistant. The totality of the facts gathered demonstrates sufficient mutual interests. The
proffered factors of comparison include: job duties, interaction with other employees,
education, qualifications, training, hiring processes, wages, benefits, work hours, substitute
opportunities, expectation of continued employment, supervision, and discipline.
Like classified employees, ND As are regularly scheduled employees, integral to the
District's operation. NDAs and many classified positions work a IO-month calendar and may
work less than five hour days. While ND As are currently at-will employees, many have been
long-time employees of the District and, in two instances, received Letters of Assurance like
classified employees receive.
24

NDAs and classified employees routinely and necessarily interact. NDAs interact with
Food Service Workers in facilitating meal services. NDAs, at all necessary times, interact with
Custodians to deal with unsafe conditions such as spills. NDAs interact with Instructional
Assistants, infonning them of students' behavioral issues. NDAs interact with Campus
Monitors to report pertinent infonnation and deal with certain situations; e.g., spills, unsafe
conditions, physical altercations, etcetera. At least at one school site, NDAs and the Campus
Monitor interact for the purposes of setting work schedules and assigning work locations.
Further, NDAs interact with classified employees in shared break rooms (where both groups
have mailboxes and otherwise receive pertinent infonnation), restrooms, and parking lots.
ND As routinely communicate with classified employees via two-way radios.
Of particular import, like Campus Monitors and Instructional Assistants, ND As provide
direct supervision of students, ensuring safe school environments by monitoring their
surroundings.
It is true, of course, that by virtue of the Unit being a wall-to-wall unit, many
classifications share little if any overlap or similarity in duties performed. The fact that ND As
do not perfonn substantially the same duties as compared to some classified employees,
therefore, is not dispositive of mutual interest.
Further, the argument that there is no community of interest because ND As do not have
the same benefits, pay, evaluation schedule, and other terms and conditions of employment is
not persuasive because those are issues that, to the extent that they are not addressed by the
Education Code, would be subject to negotiation. (Santa Clara County Office of Education
(1990) PERB Decision No. 839.)
Based on the foregoing, NDAs share sufficient mutual interests with Unit employees.
25

C. 	Established Practices/Efficient Operations
The ND As have never been represented so there is no established practice at the
District with respect to negotiating with these employees. To the extent that District
employees have simultaneously held both an NDA position as well as a classified position, no
evidence or testimony was developed concerning negotiating with those employees and the
issues, if any, that may have arisen in representing employees employed in that duel capacity.
It appears, however, that Education Code section 45103, subdivision (b)(4) resolves these
issues by mandating that these duel-serving employees are to be considered classified
employees.
The District asserts that adding NDAs to the classified bargaining unit would be
inefficient because the parties would essentially have to maintain two separate bargaining
sessions at the same table in so far as the majority of articles shall not apply-pursuant to the
Education Code-to NDAs as non-classified employees (Education Code, § 45103), thereby
negatively impacting morale. The District asserts that NDAs would acquire the financial
obligation of CSEA dues but would not be allowed to derive any other benefit with respect to
benefits that the District is required to provide to classified employees. However, adding
classifications to an existing unit is not inappropriate solely because such a change may raise
legitimate negotiating topics and create difficult issues to be addressed as part of the
bargaining process. (Santa Clara County Office of Education, supra, PERB Decision
No. 839.) PERB has rejected the argument that disparities in wages and benefits, alone, points
to a lack of community of interest. (Ibid.) Wages, hours, and other tern1S and conditions of
employment are legitimate subjects for negotiations and disparities which exist and may be
resolved through bargaining. (Ibid.) No evidence was presented concerning the District's
assertion that morale would be impacted by granting this Petition.
26

What seems to be clear is that NDAs are entitled to representation rights under EERA.
Further, based on the foregoing finding of facts and application oflaw, it is appropriate to add
the ND As to the classified Unit based on the balancing of the community of interests,
established practices, and effects on the efficient operations of the District.
PROPOSED ORDER
Based upon the foregoing and the entire record in this case it is ordered that the Unit
Modification Petition filed by the California School Employees Association & its Chapter 61 O
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
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, 14 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, § 32300.)
A document is considered "filed" when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd.
(a).) A document is also considered "filed" when received by facsimile transmission before the
14 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
27

close
of
business together with a Facsimile Transmission Cover Sheet or received
by
electronic
mail before the close
of
business, which meets the requirements
of
PERB Regulation 32135(d),
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, § 32135, subds. (b), (c) and (d); see
also Cal. Code Regs., tit. 8, §§ 32090, 32091 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, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
28