St. Hope Public Schools (PERB A472E)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ST. HOPE PUBLIC SCHOOLS,
Employer,
and
SACRAMENTO CITY TEACHERS
ASSOCIATION,
Petitioner.
Case No. SA-RR-1170-E
PERB Order No. Ad-472
December 6, 2018
Appearances: Law Offices of Young, Minney & Corr, by Chastin H. Pierman, Attorney, for
St. HOPE Public Schools; California Teachers Association, by Brian Schmidt, Attorney, for
Sacramento City Teachers Association.
Before Banks, Shiners, and Krantz, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Sacramento City Teachers Association, CTA/NEA (Petitioner or
SCTA) from an administrative determination (AD) dismissing its request for recognition
(Request). Although the Petitioner established that it had support from a majority of the
requested unit of classroom teachers at St. HOPE Public Schools (St. HOPE or Employer), the
Office of General Counsel (OGC) concluded that the proposed bargaining unit was
inappropriate because it excluded “day-to-day substitutes.” For the following reasons, we
reverse the AD and certify the Petitioner as the exclusive representative of the employees in
the requested unit. We also take this opportunity to clarify the standards for determining unit
appropriateness under the Educational Employment Relations Act (EERA).1
1 EERA is codified at Government Code section 3540 et seq.

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FACTUAL AND PROCEDURAL BACKGROUND
St. HOPE was established in 2003 as a public charter school system serving the Oak
Park community of Sacramento. The Employer enrolls approximately 2,000 students in its
elementary school (PS7 Elementary School), two middle schools (Oak Park Prep and PS7
Middle School), and high school (Sacramento Charter High School). In 2017, St. HOPE’s
approximately 96 regular classroom teachers began organizing with SCTA and their efforts
culminated in the filing of this Request on April 28, 2017.2 SCTA indicated that a majority of
employees in the proposed bargaining unit supported the Request. The proposed unit was
defined as “[a]ll certificated employees and classroom teachers within the meaning of
Education Code 47605(1)” employed by St. HOPE, but excluding “[a]ll management,
supervisory, day[-]to[-]day substitutes, classified, and confidential employees within the
meaning of [EERA] section 3540.1.”
On May 22, the Employer submitted to PERB the names of employees in the proposed
unit, pursuant to PERB Regulation 33075.3 On July 6, the OGC notified the parties of its
determination that SCTA’s petition included sufficient proof of majority support.4
On July 21, the Employer contested the appropriateness of the proposed unit and
refused to recognize SCTA on that basis. Specifically, the Employer claimed that the
2 All further dates refer to 2017 unless otherwise noted.
3 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
4 Proof of majority support was established “on the basis of current dues deduction
authorizations or other evidence such as notarized membership lists, or membership cards, or
petitions designating the organization as the exclusive representative of the employees.”
(EERA, § 3544, subd. (a).)
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exclusion of approximately 72 day-to-day substitutes rendered the unit inappropriate. Both
parties asked PERB to investigate and resolve their dispute over unit appropriateness.
On August 30, the OGC issued an Order to Show Cause directing SCTA to file
evidence and arguments concerning the appropriateness of a classroom teachers’ unit that
excluded day-to-day substitute teachers. The parties’ filings revealed the following pertinent
facts about day-to-day substitutes and regular teachers:5
The Employer’s schools operate on a 196-day work year. Of the 72 employees serving
as day-to-day6 substitutes, 37 did not work a single day during the 2016-2017 school year
when the Request was filed. Of the remaining 35 substitutes, 18 worked fewer than 20 days.
The other 17 worked between 23 and 136 days, with an average of 60 days, or .31 of a full-
time position.
Since the Employer has not recognized any employee organization, it retains relatively
unfettered control over the working conditions, qualifications, and job duties of its employees,
except where statutes prescribe otherwise. Substitutes are paid only a flat rate, initially of
$155 per day—the minimum necessary to maintain their exempt status—which increases after
11 days of service. By contrast, regular teachers receive a salary, performance incentive pay,
and benefits. Substitutes are required to hold a valid substitute credential or teaching
5 Like the parties and the AD, we include long-term substitutes in the category of
“regular” or “permanent” teachers, and we use the term “substitutes” interchangeably with
“day-to-day substitutes.” The parties have no dispute regarding long-term substitutes or any
other category of employees, other than day-to-day substitutes.
6 The parties use different definitions of “day-to-day” substitutes. For instance, in its
Reply on Appeal, SCTA defined “day-to-day” substitutes as those who worked fewer than 35
days during the 2016-2017 school year, of which there are 64. For purposes of this appeal, we
accept the Employer’s representation that all 72 substitutes who are not designated
“permanent” or “on site” are “day-to-day.” The parties remain free to bargain over job titles
and classifications in negotiations.
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credential, which generally entitles them to work no more than 30 days in any one classroom,
while regular teachers must hold a single-subject teaching credential. The Employer describes
the job duties of both substitutes and regular teachers in vague terms, like “invest students in
working hard to achieve big goals,” and “present academic content.” But it is apparent and
natural that much more is expected of regular teachers and long-term substitutes, who are
responsible for developing student goals and evaluating performance. Substitutes and regular
teachers work at the same school sites. They also interact with each other, students, and
parents as necessary, although substitutes’ interactions are necessarily less frequent. Regular
teachers participate on the Employer’s school site councils, while substitutes do not.
After SCTA and the Employer submitted their responses to the Order to Show Cause,
the OGC issued its AD, dismissing the Request as urged by the Employer. SCTA moved for
reconsideration of the AD or, in the alternative, a hearing to resolve disputed questions of
material fact. The OGC denied this motion on February 16. SCTA then appealed from the
denial of the motion and the dismissal of its Request, to which the Employer filed a response.
In its appeal, SCTA asks the Board to overrule the AD and certify the unit, or grant the
motion for reconsideration and remand the case for hearing. We grant the former request and
deny the latter as moot.
DISCUSSION
As the AD notes, in Peralta Community College District (1978) PERB Decision No. 77
(Peralta), the Board interpreted EERA section 3545 as creating a rebuttable presumption that
all classroom teachers should be placed in the same unit. To rebut the presumption, SCTA has
the burden to show that its proposed unit is more appropriate than one including day-to-day
substitutes, based on three factors: (1) community of interest; (2) established practices,
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including the extent to which employees in different categories have selected SCTA as their
representative; and (3) employer efficiency. (EERA, § 3545, subd. (a).)
The AD correctly noted that neither party submitted any evidence regarding employer
efficiency. Therefore, only the first two factors are at issue in this case, and our holding does
not necessarily extend to a case in which an employer presents “concrete evidence” that
separating out substitutes would cause its operations to “be unduly impaired by an additional
[set] of negotiations.” (Livermore Valley Joint Unified School District (1981) PERB Decision
No. 165, p. 8.)
The AD errs in the weight it gives the remaining two factors. First, while the AD is
correct that substitutes and regular teachers share enough working conditions to establish a
community of interest with one another, the AD understates the extent to which that
community of interest is weakened by disparate pay structures and other differences, and
particularly by the fact that a majority of substitutes did not work at all in the 2016-2017
school year. Second, the AD incorrectly finds that this somewhat weakened community of
interest still trumps the other applicable factor—extent of organization—even where that factor
points overwhelmingly toward approving the requested unit that excludes substitutes. In
reaching this conclusion, the AD also fails to appreciate the fact that our precedent reflects that
separate units of substitutes are not anathema to EERA’s goals and purposes.
Community of Interest
Under longstanding precedent, substitutes share a community of interest with regular
teachers. (See, e.g., Modesto City Schools (1986) PERB Decision No. 567; Oakland Unified
School District (1983) PERB Decision No. 320 (Oakland USD); Dixie Elementary School
District (1981) PERB Decision No. 171 (Dixie).) Indeed, it is for that reason that substitutes
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presumptively belong in a comprehensive certificated unit. Here, particularly given that the
other relevant factor points toward rebutting the Peralta presumption, we must examine the
strength of the community of interest.
The AD did not conclude that the traditional community of interest factors tipped
decisively in favor of a comprehensive unit. Rather, the AD found clear differences between
substitutes and regular teachers, especially with respect to compensation and teaching duties.
Significantly, the AD’s community of interest analysis gave insufficient weight to the
fact that the instant dispute pertains to 72 day-to-day substitutes, more than half of whom
worked zero days in the year in question. Given that a majority of the disputed group did not
work for the Employer whatsoever in the entire school year, their community of interest is
necessarily somewhat weaker than average.
Extent of Organization
The OGC’s over-emphasis on the traditional community of interest factors prevented
the AD from giving proper weight to the fact that the organizing campaign took place almost
exclusively among the regular staff, a majority of whom supported SCTA as their exclusive
representative. In other words, the AD did not comply with Peralta and EERA section 3545,
subdivision (a), which requires the Board to consider established practices, including the extent
to which employees in the requested unit have organized themselves into a coherent bargaining
unit. In our view, particularly given that day-to-day substitutes’ community of interest with
the rest of the unit was weaker than average, the evidence regarding extent of organization is
sufficient to tip the analytical balance, rebut the presumption favoring a comprehensive unit,
and demonstrate the appropriateness of the requested unit.
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Briefly recounted, the evidence establishes that regular teachers began organizing with
SCTA sometime in 2017. The campaign was almost exclusively led by and directed at regular
teachers. This is not surprising since, as noted ante, more than half of the Employer’s
substitutes did not work even a single day during that school year. By the time SCTA filed the
Request on April 28, a majority of regular teachers had selected SCTA as their bargaining
representative. The Employer identified the employees in the requested unit and supplied a list
of their names in May. From that list, the OGC confirmed that SCTA had the support of a
majority of the regular teachers.
EERA section 3545, subsection (a), Peralta, and elaborating cases state that the Board
is required to consider the extent of an employee organization in determining unit
appropriateness. This mandate follows also from the fact that the Board is charged with
effectuating the fundamental purposes of the EERA, which are found in EERA section 3540:
It is the purpose of this chapter to promote the improvement of
personnel management and employer-employee relations within
the public school systems in the State of California by providing
a uniform basis for recognizing the right of public school
employees to join organizations of their own choice, to be
represented by such organizations in their professional and
employment relationships with public school employers, to select
one employee organization as the exclusive representative of the
employees in an appropriate unit, and to afford certificated
employees a voice in the formulation of educational policy.
To accomplish these important purposes, the Legislature granted employee
organizations the right to “become the exclusive representative for the employees of an
appropriate unit for purposes of meeting and negotiating by filing a request with a public
school employer alleging that a majority of the employees in an appropriate unit wish to be
represented by such organization and asking the public school employer to recognize it as the
exclusive representative.” (EERA, § 3544, subd. (a).)
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The AD does not appropriately weigh the relevant factors when it finds that even a
weaker than average community interest trumps a strong employee preference indicated by the
extent of employee organization. In weighing these two factors, we note that they are often
linked. Here, for instance, the regular teachers may not wish to include a significant number of
day-to-day substitutes, more than half of whom worked zero days in the relevant school year.7
PERB must honor the truism that a rebuttable presumption can be rebutted. Indeed, if
the Peralta presumption is not overcome in this case—where there is no evidence that
employer efficiency is unduly impaired, the community of interest is not strong, extent of
organization weighs heavily toward excluding substitutes, a majority of substitutes performed
no work in the school year, and the number of substitutes is almost as high as the number of
regular teachers—then parties may have reason to wonder what facts might overcome the
presumption. In our view, these facts are sufficient.
Indeed, notwithstanding presumptions regarding the appropriateness of certain unit
configurations, the Board has approved of comprehensive certificated units with substitutes,
units without substitutes, and stand-alone substitute units. In so doing, the Board has given
maximum effect to employee choice, especially when necessary to avoid a result that would
effectively leave employees without representation.
7 The number of day-to-day substitutes could easily grow to eclipse the number of
regular teachers in the future, and the Employer would have virtually sole control over that
possibility. The dissent is correct that employees who work zero hours would not participate
choosing an exclusive representative. However, once a representative is chosen, under the
dissent’s weighing of the factors in this case, employees who work zero hours could form a
majority or near-majority of those voting in union elections, and the exclusive representative
would owe a duty of fair representation to a substantial group of employees who worked zero
hours.
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As we noted in Long Beach Community College District (1989) PERB Decision
No. 765 (Long Beach CCD), each of the factors found in EERA section 3545, subdivision (a),
must be weighed, and no one factor can trump the others. In Long Beach CCD, approximately
700 part-time unrepresented instructors sought to form their own unit, separate and apart from
the existing unit of approximately 300 regular, full-time faculty. While Peralta created a
presumption that the part-time instructors should join the existing full-time unit, the Board
noted that community of interest is not by itself dispositive. (Id. at pp. 6-7.) The most
important factor was the employees’ decision not to seek a comprehensive unit, and based on
this factor the Board favored a separate unit for part-time faculty, despite the employer’s
opposition. (Ibid.)8
The evidence in this case compels a similar conclusion. St. HOPE’s regular teachers
organized their own unit, rather than seeking a comprehensive unit with the substitutes, and
their choice is reasonable under the circumstances, for the reasons noted ante. While
unorganized teachers at other schools may not be in a position to rebut the Peralta presumption
if the facts are dissimilar from those at issue here, and such teachers may as a result have to
choose between organizing a broader unit and remaining unrepresented, the facts in this case
overcome the presumption. While the dissent believes this conclusion gives determinative
8 The dissent dismisses the significance of this and other cases because the substitutes
or part-time instructors in question were excluded from a comprehensive unit pursuant to an
employer’s agreement with an exclusive representative. But EERA and our precedent do not
suggest that we should determine whether the Peralta presumption is rebutted based merely on
whether the employer agrees with the requested unit, and indeed to do so would grant public
school employers extraordinary influence to veto their employees’ selection of a bargaining
representative. Such a result would be especially problematic here, where St. HOPE has
offered no statement or evidence regarding operational efficiency, which is an employer’s
primary bona fide interest in matters concerning representation.
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weight to just one of the two salient factors, in our view it is the dissent that inappropriately
privileges one factor over the other, whereas we have carefully weighed both factors.
We also note that our precedent reflects that in varied districts throughout the state,
each possible variation exists: comprehensive certificated units with substitutes, units without
substitutes, and stand-alone substitute units. For instance, in Palo Alto Unified School District,
et al. (1979) PERB Decision No. 84, the Board certified a separate unit of substitute
certificated employees. Subsequently, the Board approved of certificated units that
excluded substitute employees. (Paso Robles Union School District, et al. (1979) PERB
Decision No. 85; Berkeley Unified School District (1979) PERB Decision No. 101; Jefferson
School District (1980) PERB Decision No. 133; El Monte Union High School District (1980)
PERB Decision No. 142.) Then, in Dixie, supra, PERB Decision No. 171, the Board approved
a certificated unit which included substitute employees. Similarly, in Oakland USD, supra,
PERB Decision No. 320, the Board affirmed a hearing officer’s decision granting a petition to
add all regular certificated substitute employees to the certificated unit. This pattern was
repeated in Palo Alto Unified School District (1983) PERB Decision No. 352, where the Board
again approved a comprehensive unit of substitute teachers and regular teachers.
These varied configurations reflect the fact that many regular teachers organized,
without substitutes, before the legislature enacted EERA. Some legacy units later sought to
add substitutes, while in other cases the substitutes organized separate units. The Board
approved both configurations, honoring employee choice in order to vindicate the right to
representation.
The instant case tests under what circumstances employee choice and specific
community of interest facts overcome the Peralta presumption in an unrepresented workplace.
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We consider that question based on the record the parties created. While we are not restricted
by legacy units in this case, we are cognizant that four decades of history show each of the
aforementioned unit configurations to be workable. For that additional reason, we do not
hesitate to create a new unit excluding substitutes, if and only if the petitioning union rebuts
the Peralta presumption, as it has done here.
ORDER
Based on the foregoing and the entire record in this matter, the Public Employment
Relations Board hereby ORDERS that the Request for Recognition filed by the Sacramento
City Teachers Association, CTA/NEA is GRANTED. It is hereby CERTIFIED that
Sacramento City Teachers Association, CTA/NEA is the exclusive representative of the
employees in the following unit:
INCLUDING:
All regular certificated employees and classroom teachers within
the meaning of Education Code section 47605 (l), including long-
term substitutes, and
EXCLUDING
All management, supervisory, day to day substitutes, classified,
and confidential employees within the meaning of EERA section
3540.1.
Member Krantz joined in this Decision.
Member Shiners’ dissent begins on page 12.
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SHINERS, Member, dissenting: Sacramento City Teachers Association (SCTA) seeks
to create a classroom teachers bargaining unit at St. HOPE Public Schools (St. HOPE) that
excludes day-to-day substitute teachers. The majority finds this unit appropriate under the
Educational Employment Relations Act (EERA).9 I disagree because the majority’s
conclusion is contrary to PERB’s longstanding interpretation of EERA section 3545. Rather
than upending decades of settled law, I would conclude on the record before us—as the Office
of the General Counsel (OGC) did—that the bargaining unit sought by SCTA is inappropriate
because it excludes day-to-day substitutes. Accordingly, I would affirm the OGC’s dismissal
of SCTA’s request for recognition.
1. 	EERA Section 3545 and the Peralta Presumption
EERA section 3545 provides, in relevant part:
(a) 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.
(b) In all cases:
(1) 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.
In Peralta Community College District (1978) PERB Decision No. 77 (Peralta), the
Board harmonized the above two provisions of EERA section 3545 by creating a rebuttable
presumption that all classroom teachers should be placed in a single bargaining unit unless the
9 EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references are to the Government Code.
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resulting unit would be inappropriate under the criteria in subdivision (a). (Id. at p. 10.) The
party opposing creation of a comprehensive classroom teachers unit bears the burden of
proving such a unit would be inappropriate. (Ibid.)
In Dixie Elementary School District (1981) PERB Decision No. 171 (Dixie), the Board
applied the Peralta presumption to a petition that sought to add day-to-day substitutes to an
existing unit of classroom teachers. (Id. at pp. 2-3.) The Board held the presumption was not
rebutted because the substitutes shared a community of interest with the teachers in the unit and
adding substitutes to the unit would not impair the efficiency of the district’s operations. (Id. at
pp. 4, 8.) Reaching the same conclusion with regard to a similar petition in Oakland Unified
School District (1983) PERB Decision No. 320 (Oakland USD), the Board explained that, under
the Peralta presumption, “a single unit will be directed unless disparate community of interest
exists or such application would cause disruption or instability within an already established
unit.” (Id. at pp. 3-4, emphasis in original.)
As the majority notes, there is no evidence in the record—and St. HOPE does not
argue—that excluding day-to-day substitutes from a comprehensive classroom teachers unit
would have an effect on St. HOPE’s operating efficiency. As to the remaining two factors, the
majority gives unprecedented weight to the “established practices” factor while minimizing the
community of interest between day-to-day substitutes and the teachers in the proposed unit. In
my view, the conclusion the majority reaches is inconsistent with decades of our decisional law.
2. 	Community of Interest
In determining whether there is a community of interest among public school employees,
PERB considers many factors, including qualifications, training, and skills; job duties; method of
wages or pay schedule; fringe benefits; hours of work; supervision; interaction with other
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employees; and interchange of job functions. (Center Unified School District (2014) PERB
Decision No. 2379, p. 2; Rio Hondo Community College District (1979) PERB Decision No. 87,
pp. 8-11.) No single factor is determinative and the overriding issue is whether the employees
share substantial mutual interests in matters subject to meeting and negotiating. (Hartnell
Community College District (1979) PERB Decision No. 81, pp. 32-33.)
As the majority acknowledges, under Peralta there is a presumption that day-to-day
substitute teachers share a community of interest with regular teachers.10 (Palo Alto Unified
School District, et al. (1979) PERB Decision No. 84, pp. 7-8.) This presumption is based on the
premise that “substitute teachers virtually ‘step into the shoes’ of the teachers they replace.”
(Palo Alto Unified School District (1983) PERB Decision No. 352, p. 9.) Thus, despite some
differences between substitutes’ and regular teachers’ working conditions on a case-by-case
basis, the Board consistently has found that substitutes share a community of interest with
regular teachers. (Id. at pp. 9-12; Oakland USD, supra, PERB Decision No. 320, pp. 4-8; Dixie
Elementary School District, supra, PERB Decision No. 171, pp. 4-8.)
The evidence here shows that St. HOPE’s day-to-day substitute teachers share a
community of interest with the teachers in the proposed unit. Substitutes teach the same courses
to the same students in the same classrooms as regular teachers. Substitutes also prepare lesson
plans, take attendance, assign and correct homework, administer tests, work with teacher
assistants, discipline students, attend faculty meetings, participate in professional development
meetings, interact with other teachers and school employees, and perform hall monitoring duties.
Like regular teachers, substitutes must possess a Bachelor’s degree and a valid California
10 Consistent with past Board decisions, I use “regular teachers” to refer to teachers
who are not substitutes, whether they hold permanent, probationary, or temporary status.
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teaching credential.11 Substitutes work at the same locations, have the same work hours, and are
subject to the same school calendar as regular teachers. Substitutes also may conduct parent-
teacher conferences, communicate with parents about students, and enter student grades in the
online grade book.
The evidence also shows possible differences between substitutes and regular teachers at
St. HOPE. For example, it appears substitutes are not subject to the same evaluation procedures
as regular teachers, are not eligible for extra-duty assignments or transfers, and are not
supervised by the same individuals who supervise regular teachers. Yet, even if true, these
differences do not outweigh the substantial commonalities between substitutes and regular
teachers at St. HOPE.12
The majority points to three differences that it claims weaken the community of interest
between substitutes and regular teachers. First, the majority notes that substitutes are paid a flat
rate per day while regular teachers are paid according to a salary schedule. But the Board
consistently has declined to give significance in the community of interest analysis to differences
in wages, benefits, and other terms and conditions of employment because those matters are
primarily controlled by the employer and may be changed through collective bargaining.
(Santa Clara County Office of Education (1990) PERB Decision No. 839, adopting proposed
11 Although substitutes and regular teachers may hold different credentials, this does
not weigh against finding a community of interest between them. (Oakland USD, supra,
PERB Decision No. 320, p. 8.)
12 Because the undisputed evidence of those commonalities is sufficient to establish a
community of interest between substitutes and regular teachers, I find no merit in SCTA’s
argument that the OGC should have conducted an evidentiary hearing to resolve conflicting
evidence over these alleged differences between the two groups of teachers. (See Children of
Promise Preparatory Academy (2013) PERB Order No. Ad-402, p. 17 [a hearing is
unnecessary when the OGC’s investigation determines that no material issue of fact exists].)
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decision at p. 12; Oakland USD, supra, PERB Decision No. 320, p. 5; Redwood City Elementary
School District (1979) PERB Decision No. 107, p. 8; Los Rios Community College District
(1977) EERB Decision No. 18, p. 11.)
Second, the majority claims there are differences in teaching duties but does not identify
those differences. As noted above, substitutes at St. HOPE perform the same teaching duties
inside and outside the classroom as regular teachers. To the extent the majority is relying on
substitutes being ineligible for extra duty assignments, that difference hardly outweighs the fact
that substitutes perform the full array of classroom duties.
Finally, the majority points out that of the 72 substitute teachers on St. HOPE’s roster for
the 2016-2017 school year, more than half did not work during that school year. From this, the
majority concludes that the community of interest between the substitutes and the regular
teachers is “weaker than average.” (Maj. Opn. p. 6.) Our decisional law does not support this
conclusion.
In Dixie, supra, PERB Decision No. 171, the Board observed that “it is reasonable for
substitute teachers as a class to expect future employment given that the school employer
repeatedly employs substitutes as a regular and integral part of the work force.” (Id. at p. 5,
emphasis added.) Further, this Board has found “no indication that the [substitute] teachers’
interest and commitment to, or empathy with, the concerns of others within the bargaining unit,
is proportional to their number-of-days-employment.” (Id. at p. 7) Thus, the fact that some
substitutes may not have worked in a prior school year does not mean they lack a community of
interest with regular teachers.
The majority also ignores the significant number of substitute teachers who did work
during the 2016-2017 school year. Substitutes who worked during the prior school year should
16

not be denied placement in an appropriate unit simply because some of their colleagues did not
work during that year.
To the extent the majority is concerned that the inclusion of substitutes who did not work
in the prior school year would improperly affect a representation election, such a concern is
unfounded. As explained in Poway Unified School District (2015) PERB Decision No. 2441,
“[t]here is a clear distinction between voter eligibility and unit membership eligibility.” (Id. at
p. 6.) With regard to substitute public school employees, the Board has long applied the
“10 percent rule” whereby substitutes who worked less than 10 percent of the prior or current
school year are ineligible to vote in a representation election. (Id. at pp. 5-6; Oakland Unified
School District (1988) PERB Order No. Ad-172, pp. 3-5.) Thus, substitute teachers who did not
work at St. HOPE in the prior school year would not be eligible to vote in a representation
election, and therefore could not skew the election results one way or the other.
Additionally, the majority’s concern that substitutes who did not work in the prior school
year could “form a majority or near-majority of those voting in union elections” is speculative, at
best. Such substitutes would only be eligible to vote in union elections if they chose to become
SCTA members. But, on the evidence before us, we cannot determine whether any substitute
would choose to become a member. The majority’s conjecture as to the undisclosed membership
views of substitutes does not justify excluding them from a comprehensive teachers’ unit.
The majority also points out that, in a comprehensive teachers’ unit, SCTA would owe a
duty of fair representation to substitutes who did not work in the prior year. This is true, but this
Board has never held that to weigh against including substitutes in a comprehensive unit. And
there is no basis in the record for the majority’s assumption that substitutes who did not work in
the prior school year would have divergent interests from their fellow substitutes who did work
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in the prior year. (See Dixie, supra, PERB Decision No. 171, p. 7 [differences in days of
employment does not indicate lack of shared concerns among substitute teachers].) Thus, there
is no reason to believe that SCTA’s duty of fair representation would require it to put the
interests of substitutes who did not work in the prior year above those of substitutes who did
work in that year, or, for that matter, above the interests of regular teachers.
In sum, the evidence submitted by the parties establishes that day-to-day substitute
teachers at St. HOPE share a community of interest with the school’s regular teachers, one that is
not weakened by the fact that many of the substitutes did not work during the 2016-2017 school
year.
3. 	Established Practices
The remaining factor to be considered in the unit determination analysis is employees’
“established practices including, among other things, the extent to which such employees belong
to the same employee organization.” (EERA, § 3545, subd. (a).) The majority gives dispositive
weight to this factor but its reasons for doing so are flawed and contrary to our decisional law.
As we recently reiterated, “established practices, [include] both negotiating history and
the extent to which employees belong to the same employee organization.” (Los Rios
Community College District (2018) PERB Decision No. 2587, p. 4.) Because both the regular
and substitute teachers at St. HOPE currently are unrepresented, negotiating history is non-
existent. The majority therefore relies on the fact that SCTA has only organized the regular
teachers and does not seek to represent the substitute teachers. But this fact cannot be
determinative in light of the governing statute and decisional law.
We have long recognized that to avoid a proliferation of bargaining units, “EERA calls
for more general uniformity and a more limited range of units in the public school setting as
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intended by the Legislature.” (Los Angeles Unified School District (1998) PERB Decision
No. 1267, pp. 5-6.) In Peralta, the Board observed that EERA section 3545, subdivision (b)(1),
is “meant to minimize the dispersion of school district faculty into unnecessary negotiating
units.” (Peralta, supra, PERB Decision No. 77, p. 9.) Accordingly, subdivision (b)(1) prohibits
“unit configurations based on geographical, or campus considerations, or split along lines of
academic disciplines and teaching specializations.” (Ibid.) Subdivision (b)(1) thus bars PERB
from approving a unit of classroom teachers configured solely on the extent to which the
teachers have organized. After all, if a unit of regular teachers is deemed appropriate based on
the employee organization’s conscious choice not to organize substitute teachers—as the
majority does here—nothing would prevent an employee organization from establishing an
appropriate unit of teachers at only one campus or in only a single academic discipline based on
its decision to only organize teachers by location or discipline. Such a fragmented system of
bargaining units clearly is contrary to the mandate of EERA section 3545, subdivision (b)(1), as
interpreted in Peralta.
In support of its decision to approve the proposed unit despite its exclusion of day-to-day
substitutes, the majority relies on Long Beach Community College District (1989) PERB
Decision No. 765 (Long Beach CCD), in which the Board found appropriate a separate unit of
part-time instructors. But that case had very different facts. There, the district strongly opposed
a comprehensive classroom teachers unit. To eliminate this objection and pave the way for a
consent election, the union modified the proposed unit to exclude part-time instructors. (Id.,
adopting proposed decision at p. 3.) Because the district agreed to the modified unit, its
appropriateness was never litigated before PERB. (Id., adopting proposed decision at p. 4, fn. 4.)
Over the next eight years, the teachers union refused to modify the unit to add part-time
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instructors. (Id., adopting proposed decision at pp. 4-5.) The excluded part-time instructors then
filed a request for recognition as a separate bargaining unit. (Id., adopting proposed decision at
pp. 1-2.)
After noting that community of interest is not dispositive in unit determination analysis,
the Board gave great weight to the fact that creation of a separate bargaining unit was the only
way to effectuate the part-time instructors’ statutory representation rights in light of the existing
faculty unit’s refusal to include them. (Long Beach CCD, supra, PERB Decision No. 765, p. 4-
6.) Thus, instead of forcing the part-time instructors into the existing unit where they were not
wanted, the Board found a separate unit of part-time instructors appropriate under the
circumstances. (Id. at pp. 6-7.)
Here, we are making an initial unit determination, not deciding whether substitutes
should have their own unit or be added to an existing regular teachers unit. Thus, the
circumstances that led the Board to create a separate unit in Long Beach CCD are not present
here. Indeed, the Board recognized there that the part-time instructors “likely would be included
in the existing unit were the issue before us as part of an initial unit determination.” (Id. at p. 7.)
Accordingly, Long Beach CCD does not support the majority’s decision to exclude day-to-day
substitutes from the bargaining unit.13
The majority further asserts that, like the instructors in Long Beach CCD the teachers at
St. HOPE have chosen not to seek a comprehensive teachers unit, a choice that should be given
weight in the unit determination analysis. This claim fails for two reasons. First, in Long Beach
13 I do not suggest, as the majority implies, that substitutes can never be excluded from
a bargaining unit unless the employer agrees. Rather, I simply point out that the circumstances
where this Board has decided not to put substitutes in a comprehensive unit under Peralta do
not exist in this case.
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CCD, supra, the union’s decision to exclude part-time instructors from the unit was a
compromise to obtain a consent election after the district expressed strong opposition to the
union’s original request for a comprehensive instructors unit. Thus, although the exclusion of
part-time instructors was voluntary, it was not the union’s first choice—as it is here.
Second, the majority’s claim is inconsistent with our decisional law. In early decisions,
the Board held that employees’ wishes are to be considered in determining an appropriate unit,
but are not determinative. (Grossmont Union High School District (1977) EERB Decision
No. 11, p. 8.) Subsequently, however, the Board has held that employee choice has no bearing
on unit determination. (Regents of the University of California (2017) PERB Order
No. Ad-453-H, p. 9; Regents of the University of California (2010) PERB Decision No. 2107-H,
p. 24; Elk Grove Unified School District (2004) PERB Decision No. 1688, pp. 27-28;
Los Angeles Unified School District, supra, PERB Decision No. 1267, pp. 3-6.) Thus, the fact
that regular teachers may not want substitutes in the same bargaining unit is irrelevant to the
appropriateness of the proposed unit.
The majority also suggests that, notwithstanding EERA section 3545, subdivision (b)(1),
a separate unit of substitute teachers is a permissible alternative in every case. In support of this
suggestion, the majority relies on Palo Alto Unified School District, et al., supra, PERB Decision
No. 84, where the Board approved a separate unit of substitute teachers. In that case, the Board
declined to apply the Peralta presumption because adding substitutes to the existing regular
teachers unit during the middle of a contract term “would clearly carry with it [the] potential for
disruption.” (Id. at p. 8.) Because it involved a regular teachers unit that was in the middle of an
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existing labor contract, Palo Alto Unified School District, is distinguishable from initial unit
determination cases such as this one.14
The majority also cites several other early Board decisions where we allowed an existing
unit that excluded substitute teachers to stand: Paso Robles Union School District, et al. (1979)
PERB Decision No. 85; Berkeley Unified School District (1979) PERB Decision
No. 101; Jefferson School District (1980) PERB Decision No. 133; El Monte Union High School
District (1980) PERB Decision No. 142. In each of these cases, just as in Long Beach CCD,
supra, PERB Decision No. 765, the parties had agreed to a unit that excluded substitute teachers.
Critically, none of the cases required PERB to resolve the issue of whether the substitutes
belonged in the existing unit. Accordingly, these decisions provide no support for the majority’s
suggestion that a unit composed solely of substitute teachers is an appropriate alternative in an
initial unit determination by PERB.
In sum, I find no reason to give the “established practices” factor any weight in this case,
much less the dispositive weight my colleagues give it. To do so—as the majority has done—
allows employee organizations to usurp PERB’s role as the decision maker in unit determination
matters simply by choosing to organize only some of a district’s classroom teachers.
4. 	Conclusion
I cannot condone the majority’s disregard of the statutory mandate of EERA section 3545
and decades of our decisional law. Accordingly, based on the evidence before us, I would find
that St. HOPE’s day-to-day substitute teachers share a community of interest with the school’s
14 It is important to note that the Board later placed those same substitute teachers into
the regular teachers unit when a unit modification petition was filed just prior to expiration of
the existing labor contract. (Palo Alto Unified School District, supra, PERB Decision No. 352,
pp. 4-5.)
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regular teachers, and that their community of interest is not weakened by the variance among the
substitutes in days worked during the prior school year. I also would find that no established
practices exist that would weigh against placing the substitutes in the same bargaining unit as the
regular teachers. Specifically, I would not—as my colleagues have done—allow unit
determination to be controlled by the extent to which the employee organization has chosen to
organize certain teachers but not others.
In sum, SCTA has failed to rebut the presumption that all of St. HOPE’s classroom
teachers belong in the same bargaining unit. Consequently, I would affirm the OGC’s dismissal
of SCTA’s request for recognition.
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