Poway Unified School District (PERB A427E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
POWAY UNIFIED SCHOOL"DISTRICT,
Employer,
and
POWAY SCHOOL EMPLOYEES
ASSOCIATION,
Exclusive Re resentative.
Case No. LA-UM-867-E
PERB Order No. Ad-427
June 29, 2015
Appearances: Atkinson, Andelson, Loya, Ruud & Romo by Gerald A. Conradi and Amy W.
'Estrada, Attorneys, for Poway Unified School District; Ochoa Legal Group by Ricardo Ochoa
and Dovie ,Yoana King, Attorneys, for Poway School Employees Association. 	·
Before Martinez, Chair; Huguenin and Gregersen, Members.
DECISION
..
GREGERSEN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Poway Unified School District (District) to the
proposed decision (attached) of a Hearing Officer.. A unit modification petition (Petition) was
filed by the Poway School Employees Association (Association), the exclusive representative
of the District's Officeffechnical and Paraprofessional Unit (Unit). A formal hearing was held
_ and the Hearing Officer issued a proposed decision concluding that 12 substitute classifications
occupied by substitute employees of the District shared a sufficient community of interest with
the employees in the existing Unit and therefore ordered that the substitutes be included in the
existing Unit.
The Board has reviewed the entire record in this case, including the proposed decision,
the District's exceptions, and the Association'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 affirm
the unit modification and adopt the proposed decision as
!:l
decision
of
the Board itself, subject
to the discussion below
of
the District's exceptions.
PROPOSED DECISION
. 	. 	.
At issue before the Hearing Officer was the proposed inclusion
of
crossing guards,
substitute crossing guards, and approximately 135 substitute classifications into the Unit.
With respect to the crossing guard classification, the Hearing Officer determined that
while the parties stipulated to placing the classification into the existing
U~t,
the parties failed
to present any evidence that such a configuration would be appropriate. No facts were
presented establishing that the crossing guards shared a community
of
interest with Unit
empl9yees, and therefore the Hearing Officer declined to add crossing guards or the substitute
crossing guards to the existing Unit.1
~	
• ~ 	•
~·•
	" ~
With respect to the remaining substitute classifications, the Hearing Officer declin,ed
to
address any classification that was not currently filled.
	Of
the 135 Unit classifications
originally petitioned for, only 12 classifications were filled by substitute employees at the time
of
the filing
of
the Petition. Therefore,
the
Hearing Officer only looked at community
of
interest factors with respect to the twelve filled positions.. 	.
The Hearing Officer determined that the 12 petitioned-for substitute classifications
shared mutual interests in ~numerous areas, including: job duties, interaction and interchange
with other employees, qualifications, discipline, training, supervision, wages and work hours,
1 In support of his holding, the Hearing Officer cited Fremont Unified School District
(2014) PERB Decision No. 2397, citing Centinela Valley Union High School District (1978)
PERB Decision No. 62, which held that a Board agent should not accept parties' stipulated
units without scrutiny, which may include conducting a representation hearing and eliciting
evidence in support of the stipulated unit, in a unit modification case before PERB. Nothing
precludes parties from freely entering into an agreement to modify an existing unit without
participating in the PERB unit modification process. (PERB Reg. 32781.)
2

In finding that substitutes are not casual employees, the Hearing Officer determined that,
unlike casual employees, substitutes had a reasonable expectation of continued employment
and therefore shared a sufficient community of interest with employees in the existing Unit.
DISCUSSION
Generally, the District's exceptions focused on the Hearing Officer's finding that the 12
substitute classifications at issue were not "casual" employees. PERB has long defined casual
employees as those who have a sporadic or intermittent relationship with the employer and
therefore lack a sufficient community of interest with regular employees to be included in the
regular unit. (Unit Determination for Employees of the California State University and
Colleges (1981) PERBDecision No. 173-H, citing Mission Pak Co. (1960) 127 NLRB 1097.)
The District urges the Board to adopt a test similar to the one used by the National Labor
Relations Board (NLRB) for determining unit membership eligibility based on a minimum
threshold number of hours worked within a specified time frame.
In support of its argument, the District contends that over 73 percent of the employees
in the petitioned~for positions worked fewer than 20 days in an eight-month period preceding
the Petition, and that the majority of them worked fewer than l O days. The District is
essentially attempting to define a point at which an employee's relationship with the District is
transformed from intermittent and sporadic to substantial and continuing, Such poiht would,
according to the District, represent a threshold test as to when an employee would be eligible
for bargaining unit membership. In support of its argument, the District provided citations to
numerous NLRB cases wherein certain positions were excluded where such positions were
held by employees who did not regularly average four or more hours of work per week during
the quarter before a petition for unit modification was filed. (See Five Star Transportation Inc.
3

(2007) 349 NLRB No. 42; Metro Cars (1992) 309 NLRB No. 77; Trump Taj Mahal Associates
(1992) 306 NLRB No. 57; Davison-Paxon Co. (1970) 185 NLRB No. 21.)
While PERB may take cognizance of NLRB precedent in order to interpret analogous
provisions of PERB statutes (Carlsbad Unified School District (1979) PERB Decision No. 89),
with respect to this issue, we decline to adopt such an approach.
PERB has a long history of rejecting such a formulaic approach to bargaining unit
composition. In Dixie Elementary School District (1981) PERB Decision No, 171 (Dixie), the
Board modified an existing unit of regular full-time substitute and temporary teachers by
including certain day-to-day substitutes and temporary teachers. The Board stated:
.
[There was] no indication that the [petitioned-for] teachers'
interest and commitment to, or empathy with, the concerns of
others within the bargaining unit, is proportional to their number-
of-days-employment. Moreover, to impose a threshold
requirement for inclusion in the unit based on number-of-days-
employment would be inevitably arbitrary. There is no rationale
instructing where the line establishing the minimum should be
drawn. Accordingly, this Board does not require, as a condition
of unit membership, that a classroom teacher work for a specified
number of days.
(Id., supra, at pp. 7-8, fn. omitted.)
The Board has also rejected the argument that less than 50 percent part-time
employment alone should automatically result in the designation of an employee as casual.
(See Paramount Unified School District (1977) EERB Decision No. 33; Belmont Elementary
School District (1976) EERB Decision No. 7.)2 The mere fact that an employee does not work
a particular number of days or _percentage of time does not, in and of itself, indicate that the
employee does not share a community of interest with other unit members. (Unit
2 Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB).
4

Determination for Service Employees
of
the
University
of
California (1983)
PERB
Decision
No. 245c-H, at p. 10.)
The District further argues that since the issuance
of
Dixie, supra,
PER,B
Decision
No. 171, changes in PERE precedent have required a different finding
reg·arding
the minimum
employment relationship between a substitute and the employer to include an individual into a
bargaining unit. According to the District, since Dixie, PERB
has used the "established
interest formula'' to determine when an employee
is
deemed sufficiently interested in
employment-related matters to allow him or her
to vote on representation issues. The District ·
uses
Palo
Alto Unified Schooi District, et
al.
(1979)
PERB
Decision
No.
84
(Palo
Alto)
to
articulate the "established interest formula."3 In
Palo
Alto only the substitutes on the current
substitute list who had taught at least
10
percent of the pupil school days in the current or
previous school year were deemed eligible to vote in a PERB conducted representation
election.
We
disagree with the District's contention. There has been
no
change in applicable
PERB precedent. Beginning with
Palo Alto, supra, PERB Decisfon No.
84)
the Board
concluded that all substitute employees should be included in the bargaining unit, but
established the "established interest formula''
as
the threshold for voter eligibility in
PERB
conducted representation elections. In reaching its decision, the Board reasoned that while it is
presumed that salaries and other terms and conditions
of
employment affect all members
of
the
unit, the choice of a negotiating agent should be limited to those substitutes with an established
interest in employment relations with the employer. (Id. at
p.
10.) PERB reaffirmed its
distinction in Oakland Unified School District (1988) PERB Order No, Ad-172 wherein it held
3 Despite the District's contention, the development of the "established interest
formula" was not adopted after the Dixie decision, but in fact pre-dates Dixie as is seen in the
District's citation to Palo Alto, supra, PERB Decision No, 84. 
·
5

that a substitute
who
taught
one day
per year was
in the
bargaining unit, but may not
be
eligible to vote in a representation election unless
he
or
she had
worked
10
percent
of
the
current
o;r
previous school year.
	(See also State
of
California (Department
of
Personnel
Administration) (1992) PERE Decision
No.
948-S [finding that seasonal lifeguards
are
included in a bargaining unit but that "not all members of a bargaining unit :..
are
eligible
to
vote in a representation election"].) There is a clear distinction between voter eligibility
and
unit membership eligibility. PERE has consistently held that employees should
be
included in
bargaining units regardless of how few
hours they
may
work in a year, while at the same time
limiting
who may vote
in
representation elections.
As
such,
we
decline
to
use the "established
interest formula;, to determine eligibility for bargaining unit membership.
The District further argues that if the Board does not adopt the formulaic approach
followed by the NLRB or extend the "established interest formula" to eligibility for bargaining
unit membership, that the substitutes at issue should be excluded from the Unit because they
lack a sufficient community of interest with other unit employees because of their "casual"
status.
Despite its contention, nothing in the District's exceptions takes issue with whether the
substitutes perform duties similar to those of other unit employees; receive the same rates of
pay; have the same qualifications, skills and education; work the same shifts; or report to the
same supervisors. None of the community of interest factors identified by the Hearing Officer
are disputed at all by the District. Rather, the District focuses its argqment on the conclusory
premise that the substitutes at issue are "casual."
The Board has identified criteria for distinguishing "casual" employees from employees
with collective bargaining rights.
In addition to having a sporadic or intermittent re,lationship
with the employer1 casual employees also lack a reasonable expectation of future employment
6

with that employer. For example, in Unit Determination
for
Technical Employees
of
the
University
of
Cal
lf
ornia ( 1983) PERB Decision No. 241 c-H, PERB held that, with respect to
both the classifications
of
"Special Duty Hospital Assistant'' and "Special Duty Vocational
Nurse," "[t]here is no indication that the employees in [these] classification[s] do not have a
reasonable expectation
of
continuing employment." (Id. at pp. 21-22.) PERB concluded that
those classifications were not casual and therefore not included in the patient care technical
unit. (Ibid.) Likewise, in Unit Determination
for
Clerical Employees
of
the University
of
California (1983) PERB Decision No. 244b-H, PERB held that employees in the "Clerk"
classification were not casual employees because "[t]here is no evidence indicating that clerks
do not have a reasonable expectation
of
continuing employment." (Id. at p. 11.) The Board
went on to hold that, since "[t]here are no specific facts in the record indicating that employees
in [the 'Assistant' classifications] are not reappointed or have no reasonable expectation
of
continued employment[,] ... we reject the claim that these employees are casual and include
the classifications in the unit." (Ibid.)
This case was submitted on a stipulated record as can be seen in the attached proposed
decision. Upon review, the stipulated record is devoid
of
any specific facts indicating that the
substitutes at issue have no reasonable expectation
of
contif).ued employment. More
importantly, however, the District stip'.;lated to the fact that the substitutes do have a
reasonable expectation of future employment. Stipulated fact number 66 specifically states:
.
The District maintains a list
of
available substitute employees,
and employees on this list have a reasonable expectation
of
future
employment as a substitute with the District, absent any concerns
about their work performance or their conduct. The petitioned-
for classified substitutes have no expectation of regular (i.e., non-
substitute) employment with the District[.]
Stipulated fact number 70 further states in pertinent part that "many substitute
employees have worked for the District in that capacity for a number of years." Given that
7

there is no
dispute that these employees have a reasonable expectation of continuing
employment
as
substitutes for the District, in some cases for several years,
we
reject the
District's claim that these employees
are
"casual'' for purposes of their exclusion.from
the
bargaining unit.
Request for Stay of Activity
In
addition to its exceptions, the District simultaneously filed a Request for Stay of
Activity pending the issuance of this Board decision. According to the District, a stay of
activity is imperative because PERB's findings herein will seriously alter the administrative
time the District will expend in preparing to address matters relative to negotiations regarding
the employees at issue. The Association did not respond to the District's. request.
As a threshold matter,
PERB
Regulation 32370, ''Request for Stay of Activity,"' appears
under Article
3,
"Administrative Appeals." Under
PERB
Regulation 32350(a),
an
administrative decision does not include "(3) a decision which results
from
the conduct of a
formal hearing or from an investigation which results
.in
the submission of a stipulated record
and a proposed decision written pursuant
to
Section 32215." At issue herein is precisely the
type of decision arising out of
PERB Regulation 32350(a)(3) and excluded from the
definition
'of administrative decision, and therefore not subject
to
a stay.
As
important, under PERB Regulation 32305, "Finality of Board Agent Decisions,"
"(a) Unless a party files a timely statement of exceptions to the proposed decision, the decision
shall become fin~ on the date specified therein." Unlike an administrative decision that is
final and effective upon issuance, a proposed decision only becomes final and effective if
no
·exceptions are filed. Since exceptions were filed in this matter, the proposed decision did not
become final and the proposed order did not go into effect. As such, the District's Request for
Stay of Activity is not proper and is therefore denied.
8

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 Poway School Employees Association
(Association) in Case No. LA-UM-867-E is hereby GRANTED, in part, consistent with the
_proposed decision.
Pursuant to the Education~! Employment Relations Act section 3545, subdivision (a),
and the Public Employment Relations Board (Board) Regulations, the Board adds the
following job classifications to the existing bargaining unit represented by the Association:
Office Assistant II, Li\,rary Media Technician, LAN Administrator, C~mpus Security
Specialist, Health Services Technician, Program Aide ESS/ASES, Lead Middle School ASES
Assistant, Instructional Assistant-Preschool, Instructional Assistant ELL, Instructional
Assistant I-Special Education, Instructional Assistant II-Special Education, and Athletic
Trainer employed by Poway UnifiedSchool District.
Chair Martinez and Member Huguenin joined in this Decision.
9

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
POWAY UNIFIED SCHOOL DISTRICT,
Employer,
and
POWAY SCHOOL EMPLOYEES
ASSOCIATION,
Exclusive Re resentative.
REPRESENTATION
CASE NO. LA-UM-867-E
PROPOSED DECISION
(February 13, 2015)
Appearances: Atkinson, Andelson, Loya, Ruud & Romo by Gerald A Conradi and Amy W.
Estrada, Attorneys, for Poway Unified School District; Ochoa Legal Group by Ricardo Ochoa
and Dovie Y oana King, Attorneys, for Poway School Employees Association.
Before Yaron Partovi, Hearing Officer.
PROCEDURAL HISTORY
. The Poway School Employees Association (PSEA) is the exclusive repr~sentative of
the employees at Poway Unified School District's (District) combined Office/Technical and
Paraprofessional classified bargaining unit (Unit). On March 25, 2013, PSEA filed a Petition
for Unit Modification (Petition), pursuant to the Educational Employment Relations Act
(EERA), 1 with the Public Employment Rel.ations Board (PERB or Board) to add to the Unit:
(1) Crossing Guards and (2) Substitutes who fill-in for absent Unit members.
-~ 	.
On April 29, 2013, the District asserted that the proposed unit modification is
inappropriate. During an October 10, 2013 settlement conference, the parties were unable to
resolve this matter; however, the parties stipulated to the submission of a joint statement of ·
1 BERA is codified at Government Code section 3540 et seq. All statutory references
are to the Government Code, unless otherwise specified.

facts and several exhibits. With the receipt of the parties' closing briefs on April 26, 2014, the
record was closed and the case was submitted for decision.2
STIPULATED FACTS
The parties entered into a "Joint Stipulation of Relevant Facts" that provides, in relevant part:
1. 	The [District] is a public school district in San Diego and Poway, California....
2. 	The [District] is a "public school employer" pursuant to the provisions of
Gove1nment Code section 3540.1 (k).
··· · 3. ·· The [PSEAlis the·''exclusive representative" forthe Office/Technical and
Paraprofes_sional classified bargaining unit in the District purs1Jant to Government
Code section 3540.l(e).
4. 	Local 221 of the Service Employees International Union ("SEIU") is the
"exclusive representative" for the Operations Support Services classified
bargaining unit in the District pursuant to Government Code section 3540 .1 (e).
SEIU is not a party to the present Petition and has not sought to intervene in this
matter.
5. 	The description of PSEA bargaining unit members is currently set forth in Article
1 of the collective bargaining agreement ("CBA") between the District and PSEA,
at Section 1. L 7. That section states:
"Members of the unit" refers to all classified employees who are part of
a single unit which represents Office, Technical and Paraprofessional .
classified employees. All management, confidential, and supervISory ·
employees anq_ all other classified employees are excluded from.the
above unit. Specific descriptions of this single unit of classifi~d
employees are attached hereto marked as Appendix A.
2 On June 17, 2014, PSEA filed an "Evi4entiary Objection to Respondent's Closing
Bri,ef' asserting that the following facts contained in the District's closing brief were not part
of the evidentiary record and are not relevant in this matter: "An employee is eligible to
become a PSEA member ifs/he remains current in dues owed to PSEA.... Voting may take
place at 'membership meetings,' and approval by a majority of members is required to adopt,
amend, or repeal any PSEA bylaw .... " PERB advised the District that PSEA's filing would
be treated as a motion under PERB Regulation 32190 and that the District could file a response
by no later than July 1, 2014. The District did not file any opposition to -the motion. Given
that the above facts are not contained in the stipulated facts, it is not proper to reference such
facts in this decision. (See e.g., Campbell Union High School District (1988) PERB Decision
No. 701.)
2

6.	
On March 25, 2013, PSEA filed a Petition
for
Unit Modification with
[PERB].
The [P]etition sought
to
add the following unrepresented positions
to
PSEA's
bargaining unit:
a.· Crossing guards;
and
b.	
Substitutes in the following positions: substitute crossing guards, child care
substitutes, substitute clerks, substitute instructional assistants, substitute classified
and campus security officers.
7. 	The District submitted its Response
to the [Petition] on April 26; 2013.
In
its
response, the District argued.the necessity
of
presenting proof
of
majority support
and asserted there
was an insufficient community
of
interest between
the
petitioned-for classified substitutes and currentbargaining urtirmembers.
On
June 26, 2013,
the
District withdrew
its
contention that the Petition required proof
of majority support. The District continues to maintain that the petitioned-for
classified substitutes lack a sufficient: community of interest with current
bargaining unit members.
·
8. 	The District does not oppose the inclusion of regular crossing guards in PSEA's
unit, and PSEA and the District have agreed that regular crossing guards should
be included
as
paraprofessionals in the Classified Service.
9.	
The District has adopted
the
"merit system" which is codified
in
Education Code
section 45240
et seq.
10. Personnel Commission Director Deborah Wulff oversees the employment of both
substitute and contract employees in the classified servic~.	
.
11.
District Administrative Procedure (" AP'') 4.301.1
...
exempts from the classified
service:
3. Temporary (Limited Term) Employees!Position [sic]
a. Persons employed in temporary (limited term) positions are exempt
from the classified service. These are persons employed
to:
(1) Perform a service of a temporary nature, the duration ofwhich shall not exceed six months (short term).
(2) Take the place of an absent employee not to exceed the
period of absence of said employee (substitute).
12.
Personnel Commission Rule ("PC Rule") 10.100 defines "limited term employee"
as:
3

An employee who is serving as a substitute for a regular member of the
Classified Service or in a position established for a limited and specified
period of time, not to exceed six months. 	·
13. The term "substitute," as used in the Petition and these stipulations, refers to
limited tenn employees as defined in AP 4.301.1 and PC Rule 10.100[.]
14. The CBA, at Section 1.1.9, defines a ["]permanent employee" as a "regular
employee who has successfully completed an initial probationary period."
15. The CBA, at Section 1. 1. 10, defines a ["]probationary employee" as:
[A] regular employee who will become permanent upon the successful
completion of a prescribed probationary period. 'Six months' as it relates to
'probationary period' tsfo] to be defmed as six lho:ttths or 130 days of paid service
whichever is longer.
·
·
16. PC Rule 10.100 defmes a permanent employee as:
An employee who has completed a probatiopary period in the class to which
assigned or who entered the class by transfer, demotion, or
reinstatement/reemployment without serving a probationary period.
17. PC Rule 10.100 defines a probationary employee as "[a]n employee serving a
probationary period." Rule 10.100 further defines probationary period as:
A trial period of six months ( or 130 working days, whichever is longer)
or one year (as detennined by the Commission) before being advanced
into permanent status in the District. Immediately following an original
or promotional appointment to a permanent position from an eligibility
list. All leaves, paid or unpaid, are excluded from the probationary
period.
18. The petitioned-for classified substitute employees are not deemed probationary or
permanent.
19. In general, classified substitute work in the District is at-will/on-call based on
District need.
20. The petitioned-for classified substitutes may elect whether or not to accept a
substitute assignment.
21. Individuals may apply to the petitioned-for classified substitute positions through
postings of the District's Personnel Commission.
22. In some cases, an individual work site may request that a particular individual be
hired as a petitioned-for classified substitute.
·
4

23. If an individual applies to be a petitioned-for classified substitute through a
Personnel Commission posting, the individual goes through a screening interview.
If the Personnel Commission observes no obvious concerns, deems the person
capable of communicating in English, and the individual has the minimal
certifications for the specific assignments sought, the individual may be placed on
the classified substitute list.
24. If an individual is recommended as a petitioned-for classified substitute by an
individual site, the Personnel Commission will only verify if the individual has
the minimal qualifications for the specific assignments sought; there is no
screening interview.
... 25·: PC Rule 30:200.4relates to the appointment of"substitute or limited term
positions." PC Rule 30.200.4 states:
·
A. 	Whenever the appointing authority shall require the appointment of
a person to a limited term position in lieu of an employee on an
approved leave as defined in Chapter 65, the appointing authority
shall so notify the Commission office and indicate the probable
duration of the appointment.
B. 	Wheneyer the appointing authority shall require the appointment of
a person to a limited term position, the duration of which is not to
exceed six months, the Commission shall be so notified, and
informed of the duration of the appointment.
C. 	All appointments to substitute or limited-term positions shall be
made from appropriate eligibility lists. Eligibles shall be certified
in accordance with their position on the appropriate employment
list and their willingness to accept appointment to such position as
limited-term employees.
D. 	Limited-term employees shall not earn seniority credit, nor be
granted benefits regularly given to the Classified Service, with the
following exceptions:
1. Limited-term (substitute) employees who work continuously for
more than six months shall be granted sick leave benefits as
defined in Section 45191 of the Education Code.
2. 	Limited-term (substitute) employees whose assignment is for more
than six months shall be paid for those holidays occurring during
their assignment period.
5

26. The
PC
Rules which must be
followed when selecting candidates
for
contract
classified employment
are set
forth in Chapters
40 and
50 of
the
PC
Rules
....
These processes
may
include a competitive examination, ranking of
candidates,
and
the
creation of eligibility lists
to
determine appointment.
Currently, all PSEA unit classifications
are
subject
to
PC
Rule processes
in
their selection
for
employment.
27.
Classified substitutes
are
not subject
to
the
selection processes set forth in
Chapters
40 and
50
of
the
PC
Rules
to
be placed
on an eligibility
list.
28. The District's job postings
for
the petitioned-for substitute positions use the
same description of
the
position and examples
of
duties
as do
the job postings
of the equivalent contracted positions in the existing unit. For
example:
a.	
Exhibit 7
is
a true and correct copy of a District job posting
for
an
"Instructional Assistant I-Special Education" in the existing unit,
whereas Exhibit 8
is
a true and correct copy of a District job
posting
for
a "Substitute Instructional Assistant
I-
Special Education,"
one
of the petitioned-for titles;
b.	
Exhibit 9
is
a tme and correct copy of a District job posting
for
a
"Program Aide-AS ES" in the existing unit, whereas Exhibit
10
is
a true and correct
copy
of the District's current job posting
for
a
"Substitute Program Aide-ASES,"
one
of
the
petitioned-for
titles[.]
29. In addition to required certifications and licenses, the applicable classification
descriptions require contract classified employees to possess specified
education
or
experience
to
qualify
on
the
PC
eligibility list. Based
on
recruitment necessities, parts ofth€se qualifications may be waived. Such
additional qualifications contained in the classification descriptions include,
but
are not limited
to:
a.	
An Administrative Assistant II must have completed college-level
coursework in business, office management,
or
a related field and must
have four years of responsible secretarial or administrative assistance
experience involving public contact.
b. 	A Library Media Technician must have two years of experience working
in a library or media center.
c.	
A Health Services Technician must have two years of experience
providing health services to children and/or working in a school office.
6

d. 	A Computer Resource Assistant must have received training in the use of
networks, computers, mobile devices, and software and must have two
years of experience working in an educational environment.
e. 	A School Administrative Specialist I must have completed two years of
college-level coursework in computer technology and must have two
years of experience in a highly computerized technical office
environment.
30. Although classified substitutes must meet the minimum certification requirements
of a given position to substitute in that pqsition, no classified substitutes are
required to hold the education and/or experience qualifications called for in the
applicable classification description.
31. Candidates for the petitioned-for substitute positions are required to possess the
same CPR and First Aid certifications as employees in the existing unit, pass the
same fingerprint background check as employees in the existing unit, and
successfully complete the same functional physical exam as employees in the
existing unit.
32. When the District hires an individual in a petitioned-for substitute employee
position who has never previously worked for the District, that individual is
required to attend the same District new employee orientation as are newly-hired
members of the existing unit who have never previously ~orked for the District.
33. Individuals hired as Substitute Program Aides in the ESS orASES programs are
required to meet the same qualifications as are individuals hired as ESS/ASES
Program Aides within the existing unit.
34. Individuals hired in the "substitute instructional assistant" position are required to
meet the same qualifications under the federal No Ch_ild Left Behind ("NCLB")
law as are individuals hired in Instructional Assistant positions within the existing
PSEA unit.
35. Both the Instructional Assistant I-Special Education job description and the
substitute Instrnctional Assistant I-Special Education job description require
"coursework in child development related to students with special needs" and
"one year experience working with students of various age levels requiring a
specialized learning environment." In practice however, these requirements are
waived for both positions. All applicants for any substitute instructional assistant
position must pass the NCLB examination and may no longer meet this
requirement with college/university credits.
36. In addition to the two-hom NCLB certification examination, contract Instructional
Assistants must successfully complete a qualifying examination to be- eligible to
work in the position.
7

37.
In addition
to
the two-hour
NCLB
certification examination, contract Library
Media classifications must successfully complete a qualifying examination testing
their library skills and knowledge.
38.
Individuals substituting for absent Health Services Technicians in the existing
PSEA unit are required
by the District to attend the
same
Health Services
orientation/training which the District requires newly-hired Health Services
Technicians in the existing unit to attend.
39.
The petitioned-for substitute positions represent all the substitute positions which
substitute for absent members of, or temporarily fill vacancies in, the existing
unit. Except
for
substitute teacher, there are
no
other substitute positions at the
District which·substitute
for
absent members
of;
or temporarily fill vacancies
in;
PSEA's unit.
40. The District currently utilizes other substitute job titles, such
as
"Substitute
Custodian" and "Food Service Substitute," which substitute for absent members
of, or temporarily fill vacancies
in,
the District's Operations Support Services
classified bargaining unit represented by SEIU Local 221. These substitute job
titles
are
not part of PSEA' s petition.
41. The District and PSEA agree that the petition
is
not intended
to
bring confidential
substitutes into the PSEA unit and therefore, if PSEA's petition is granted, the
unit shall exclude substitutes for absent confidential employees.
42. With exception of
the substitute crossing guards, the petitioned-for substitute
positions only substitute for absent members of, or temporarily fill vacancies in,
the existing unit. With the exception of the substitute crossing guards, these
substitute positions
do
not substitute for absent employees of, or temporarily fill
vacancies in, the District that are outside PSEA's existing unit. The substitute
crossing guards only substitute· for regular crossing guards who are absent,
'or
temporarily fill vacancies of regular crossing guards.
43.
In some instances, individuals providing substitute services
for
the District may
alternate between working
as
a substitute for
abse_nt
members of PSEA's unit,
absent members
of
SEIU's
unit,
and/or absent confidential employees. PSEA's
petition only seeks to represent these individuals when they are performing
services for absent members of; or temporarily filling vacancies in, PSEA's
existing unit.
44.
When--a
petitioned"for substitute employee is filling in for an absent unit member
or temporarily filling a vacant unit position, that substitute employee is supervised
by the same supervisor
as
the absent unit member or the vacant position. The
District does not have a separate supervision stmcture for substitute employees.	.
8

45. When a petitioned-for substitute employee is filling in for an absent unit member
or temporarily filling a vacant unit position, the substitute employee is performing
work at the same location as the absent unit member or the vacant position. The
District does not have separate work spaces for substitute employees. Petitioned-
for substitute employees may also share a physical workspace with members of
the District' certificated bargaining unit, the SEIU bargaining unit, and/or other
non-PSEA unit members ..
46. When a petitioned-for substitute employee is filling in for an absent unit member
or temporarily filling a vacant unit position, the substitute employee is interacting
with	. 	members of the existing unit, and with teachers and administrators,. to the
same extent as the absent unit member or vacant position would. The District
does not segregate or otherwise separate substitute employees from existing unit
members.
47. When a petitioned-for substitute employee is filling in for an absent unit member
or temporarily filling a vacant unit position, that substitute employee is
performing.some of the same job functions as the absent unit member, or
employee in a vacant positon, would have perfonned that day. Supervisors assess
the ability of a substitute to perform the duties of the position of the absent
employee and work assignments for substitutes will differ depending upon the
ability of the substitute to perform some or all of the duties of the absent
employee. The District does not have a separate job duties [sic] to be performed
only by substitute employees.
48. When a petitioned-for substitute employee is filling in for an absent unit member
or temporarily filling a vacant unit position, that substitute employee sometimes
w:orks the.same hours as the absent unit member, or vacant position, would have
worked that day. However, the substitutes occasionally perform substitute
services for fewer hours than the regular employee: The District does not have a
separate work schedule for substitute employees.
49. When a petitioned-for substitute employee is filling in for an absent unit member
or temporarily filling a vacant unit position, that substitute employee's
compensation is funded from the same.sources ofrevenue as the absent unit
member, or vacant position, would have been paid from. The District does not
have separate funding sources for substitute employees.
50. Every individual working in the petitioned-for titles is paid an hourly rate which
corresponds to the hourly rate for positions within the existing PSEA unit, and
this rate of pay may differ daily based on the assignment accepted by the
substitute. Most of the time, but not aiways, the rate the substitute employee is
paid corresponds either to the specific position or the job family in which they are
substituting. For example:
· 	· ··
·
.
9

a.	
The rate which the District pays individuals
who are
substituting
for
Senior
Infonnation
Systems Support
Analysts
in
PSEA' s
unit
is
Step
I of the current
salary range for
PSEA
unit
members
serving
in
the position of Senior
Infonnation
Systems Support Analyst
(Range
48).
b.	
The
rate which the District pays individuals
who are
substituting
for Career
Guidance Technicians
in
PSEA's unit
is
Step
1 of the current salary range
for
PSEA
unit
members serving
in
the
position of Career Guidance Technician
II
(Range 27).
c.	
The rate which
the
District pays individuals
who are
substituting for Health
Services Technicians
in
PSEA's unit is,Step 1 of
the
current salary range
for
PSEA unit
members serving in
the
position of Health Services Technician
(Range26).
d.	
The rate which
the
District pays individuals
who are
substituting
for
Computer Resource Assistant II in PSEA' s unit
is
Step
l of the current salary
range for PSEA unit members
serving in
the
position of Computer Resource
Assistant II (Range 26).
e. 	The rate which
the
District pays individuals
who are
substituting
for Campus
Security Specialists in PSEA' s Unit
is Step
1 of
the
current salary range
for
PSEA unit
member$
serving in the
position of
Campus
Secmity Specialist
(Range 23).
f.	
At the time PSEA filed its
posij;ion
[sic], the rate which the District paid
individuals
who were substituting
for
clerical employees in PSEA' s unit
was
Step 1 of the current salary range
for the unfilled position of Office Assistant I
(Range 20). Since then, the Office Assistant I classification has been
abolished,
and the District anticipates that individuals substituting
for
clerical
employees
in
PSEA' s unit will henceforth be paid at Step l of the current
salary range for PSEA unit members serving
in
the position of Office
Assistant II (Range 22).
g.	
The rate which
the
District pays individuals
who are substituting for Instruction
Assistant I-Special Education in PSEA' s unit
is
Step 1 of the current salary range for
PSEA unit members serving
in the position of Instructional Assistant I-Special
Education (Range 20).
h.	
The rate which the District pays individuals who are substituting
for
Preschool
Instructional Assistants in PSEA,s unit is Step 1 of the current salary range for PSEA
unit members serving in the position of Preschool Instructional Assistant (Range 20).
1. 	The rate which the District pays individuals who are substituting for Library Media
Assistants in PSEA' s unit is Step l of the current salary range for PSEA unit
members serving in the position of Library Media Assistant (Range 20).
·
•
10

J. 	The rate which the District pays individuals
who are substituting
for
Program Aides
in the ESS or ASES programs in PSEA's unit is Step 1 of the current salary range for
PSE.f\
unit members serving in
the
position of Program Aide
in
the ERR or-ASES
programs (Range
16).
51.
The petitioned-for classified substitutes
do
not attain seniority and are not
considered to have a seniority date.
52. PSEA and the District have negotiated into their current
[CBA]
a provision that
allows employees
who
retire from the existing unit to count up
to
five (5)
years of
service
as
an hourly employee toward eligibility
for
post-retirement health
insurance benefits.
53.
Substitute employees of the District participate
in
the same
retir(;)ment
plans
(either CalPERS, PARS
or,
less frequently, CalSTRS)
as
do
classified employees
in the existing PSEA unit.
54. The petitioned-for classified substitutes are not eligible for transfers
55.
The petitioned-for classified substitutes do not accrue vacation.
56. The petitioned-for classified substitutes do not receive nor
are
they eligible for
health and welfare benefits.
57. The petitioned-for classified substitutes
do not earn sick leave or holiday pay,
unless they fall within the exception set forth in PC Rule 30.200.4.
'.
..
Under the
PC Rules, only substitute employees "who work continuously for more than six
months shall be granted sick leave benefits as defined in Section
54191
of the
Education Code." Additionally, only substitute employees "whose assignment
is
for more than six months shall be paid for those holidays occurring during their
assignment period."
58.
With the exception of Health Services Technicians, neither employees in the
petitioned-for substitute positions
no.r
those in the existing PSEA unit are required
to undergo any form
of training as a condition
of
employment. Both groups of
employees are expected
to
bring to the job their prior skills, knowledge and
experience and learn additional skills while on the job.
59. The petitioned-for classified substitutes do not receive staff development training.
60.
The petitioned-for classified substitutes are
no't
provided District
e'."mail
accounts.
61. To dismiss a current PSEA bargaining unit member from employment, the
District must follow
the
procedures set forth in District AP 4 .313
.1
["reasonable·
cause" for disciplinary action against probationary employees; enumerated causes
·
·
..
\
11

for
permanent employees with a right
to
appeal]. The District
also
must, in
most
cases, adhere
to
a system of progressive discipline
as
set forth
in
District Board
Policy [sic] 4.313.
62.
A classified substitute
need
not be "dismissed" or "laid off"; the District
may
simply elect not to contact the individual
to
offer him/her
an
assignment.
63.
When there
is
a reduction
in
force, current PSEA bargaining unit members
may
only
be
laid off in accordance with Article
15
of the
CBA.
. . . Article
15
provides unit members with rights regarding notice, bumping,
and
reemployment.
64.
PSEA unit members
are
evaluated
by
their designated supervisors in accordance
with Article
11
of the
CBA.
. . . According
to
Article
11,
permanent employees
are
subject to·a
formal evaluatioi:fonce every
one
or
two
school years: depending
on their length of service. In practice, however, such evaluations of
PSEA
unit
members often
do
not occur with
the frequency anticipated in
~he
CBA.
65.
Classified substitute employees are not subject to any
fix.ed
method of evaluation.
66.
The District maintains a list of available substitute employees, and
employees
on
this list have a reasonable expectation of future employment
as
a substitute with
the District, absent
any
concerns about their work performance
or
their conduct.
The petitioned-for classified substitutes have
no
expectation of regular (i.e., non-
substitute) employment with the District[.]
67.
In some cases, employees
who
are first employed
as
substitutes
for
absent PSEA
unit members or in vacant unit positions are subsequently hired into a position in
the PSEA
unit.
For example, of the 139
individuals who perfonned services
for
the District as substitutes in the petitioned-for titles between July 2012 and March
2013,
11
of them (nearly
8%)
were hired by the District into PSEA-represented
classified positions
by
February
2013.
68. Some employees who have retired from the District in a position within PSEA's
unit return to work for the District in the petitioned-for substitute employee
positions.
69.
It is common for less-senior employees in the existing PSEA unit
to
move frpm
one job classification
to
another as they are laid off from their previous positions,
or as other positions become available.
70. The petitioned-for substitute classified employees have a higher turnover rate than
employees in the established PSEA unit. However, many substitute employees
have worked for the District in that capacity for a number of years.
71. Approximately three out of four substitute employees who perfonned services for
the District in the petitioned-for titles during the 2012-2013 school
yea.I:
worked
as
·
12

substitutes
for
only one classification in the
PSEA unit. Of
the 139
people
who
worked in the petitioned-for titles between
July 2012 and March 2013, only
32
substituted in more than
one
classification.
Further.,
of those
32
individwils, 1O
substituted exclusively
for
paraprofessional classifications.
72.
Individual employees in
the
existing
PSEA
unit work
as
little
as
one (1) hour
per
day and
as
many
as
eight
(8)
hours
per day, depending on
how
many hours per
day they have been contracted
for.
Similarly, employees in
the
petitioned-for
substitute positions
may be
scheduled to work for the District
as
little
as
one
(1)
hour in a day or
as
many
as
eight
(8)
hours in a
day.
73.
The work year for
9.5
(9½) month employees in the PSEA bargair)ing
tmit
is
185
days.
74.
The work year for
10
month employees in the PSEA bargainingtmitis
195
days.
75. The work year for
10.5
(101/2)
month employees in
the PSEA bargaining unit
is
202 days.
76.
The work year for
11
month employees in the PSEA bargaining tmit is 209 days.
}7. The work year for
11.5
(11
½)
month employees in the PSEA bargaining unit is
220 days.
78. The work year
for
1.2
month employees in the PSEA bargaining unit
is 245 days.
79. The payroll prior
to the date PSEA filed the instant petition
for
unit modification
ended on February 25, 2013.
80.
Between July
1,
2012 and February 25,
2013.,
the District employed a total of
124
different individuals
as
classified substitutes in the petitioned~for positions.
81.
[Seventy
five]
of
the
individual classified substitutes worked a total of 1O
days
or
fewer between July
1,
2012 and February 25, 2013.
82.
[Sixteen] of the individual classified substitutes worked between
11
and 20 days
in total between July
1,
2012 and February 25, 2013.
83.
[Twenty five] of the individual classified substitutes worked between
21
and 50
days in total between July
l,
2012 and February 25, 2013.
'84. Eight of the individual classified substitutes worked between
51
and
113
days
between July
1,
2012 and February 25, 2013.
.
·
13

ISSUE
Whether it
is
appropriate to add the Crossing Guard and petitioned-for Substitute
classifications
to the
Office/Technical and Paraprofessional Unit represented
by
PSEA.
CQNCLUSIONS
OF
LAW
I. 	Legal Status
of
Substitute§
Education Code section 45103 expressly exempts Substitute employees
from the
classified service in school districts that have not adopted a merit system. 3
(Ed.
Code § 45103,
subds. (b)(l) and (f).) Here, however, the District has adopted a merit system
and
·established a
Personnel Commission (PC) pursuant
to
Education
Code
section 45240.
As
such,
personnel
matters concerning classified employees are administered in accordance with the
PC
Rules.
Pursuant to
the
District's
PC
Rules and Administrative Procedure-which also delineate
exemptions for classified service--a classified Substitute serving
as
a "limited term employee"
is not a classified employee and is not subject to the merit system.
. 	.
Section 3540.1, subdivision
G)
provides:
"Public school employee" or "employee" means a person
employed by a public school employer except persons elected by·
popular vote, persons appointed by the Governor of this state,
management employees, and confidential employees.
In Center Un(fied Schoo/District (2014) PERB Decision
No. 2379 (Center USD), the
Board held that employees excluded from the Education Code definition of"classified service"·
(in that case, Noon Duty Aides) could nonetheless be considered "public school"employees"
under the EERA .. The Board explained that although "the Education Code expressly excludes
such employees from the definition of 'classified service,"' the employees fell within EERA's
3 Education Code section 45103, subdivision (b )(1) provides: "Substitute and short-
term employees, employed and paid for less than 75 percent of a school year, shall not be a
part of the classified service."
14

broad definition of "public school employee." (Ibid., citing Pittsburg Unified School District
(1976) EERB4 Decision No. 3 [Pittsburg] and Fontana Unified Sehool District (2004) PERB
Decision No. 1623 [Fontana].) The Board noted that while section 3540.1, subdivision (e)
formerly defined "exclusive representative" as the representative of "certificated or classified
employees," the Legislature changed the definition so that it now defines the exclusive
representative as the representative of "public· school employees" as defined in subdivision
(i).''5 (Id., p. 5.) The broad definition of "public school employee" under BERA "is not
limited in any way to certificated employees or employees in the classified service." (Id.,
pp. 3-4.) Like the Noon Duty Aides in Center USD, the Substitutes at issue here are school
employees with representational rights under BERA: "the Board has long held that [Noon
Duty Aides] are 'public ·school employees' within the meaning of section 3540.1, subdivision
(i), and, that they may appropriately be included in a unit of classified employees for collective
bargaining purposes." (Id., p. 3.) It is therefore well-settled under Center USD, that despite
the specific exclusion contained in the Education Code, employees falling within the broader
public school employee definition provided in EERA "should enjoy the same rights afforded
other public school employees to bargain collectively through a representative of their own
choosing.'' (Id., pp. 3~4.)
4 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
5 The Legislature enacted this change to the BERA in light of the Board's issuance of
Castaic Union School District (2010) PERE Order No. Ad-384 in which a majority of the
Board interpreted the EERA to conclude that Noon Duty Aides have no collective bargaining
rights under the EERA because they are expressly excluded from the definition of "classified
service" in the Education Code. In light of the Legislature's amendment to the EERA, the
Board ·overruled this holding in Center USD, supra, PERB Decision No. 2379, p. 5.
15

The case
of
California School Employees Assn., Tustin Chapter
No.
450
v.
Tustin
Unified School District (2007) 148 Cal.App.4th 510
(Tustin
USD),
cited by the District, is
distinguishable. In that case, the parties' collective bargaining agreement required the district
to deduct from an absent employee's salary, the "amount actually paid to a substitute
employee." (Id., p. 4.) The legal question presented was whether the district, when it assigns a
classified employee to fill the position
of
an absent employee, may deduct any sum from the
absent employee's salary. The Court
of
Appeal concluded that under Education Code section
45196, a school district may
no~
deduct from the absent employee's salary the amount paid to
"current [classified] employees,. assigned during the absent employee's work hours, since such
classified employees are not "substitutes." (Ibid.) The court also rejected the district's
argument that a substitute employee may be
"a
classified employee" and vice-versa because a
substitute designa~ion is dependent upon the-"purpose for which a school district hires the
employee." (Id., p.
6~
emphasis added.)
Tustin
USD,
supra, 148 Cal.App.4th 510, therefore, addressed the issue
of
hiring,
holding that current classified employees hired to also replace or fill in for other,classified
-employees are not "substitutes."
	In
the present case, by contrast, the Substitute classifications
are individuals hired by the District to fill in for absent Unit members. These individuals_ are
clearly "substitutes" and not the replacement employees at issue in Tustin
USD
(i.e., current
classified employees filling in for other absent unit members).
Moreover, even
ifan
individual already employed by the District concurrently serves as
a Substitute employee, EERA does not bar employees from being represented by more than
one bargaining unit. As stated in San Francisco Unffied School District (1995) PERB
Decision No. 1086,
16

An employee holding two positions with the same employer, e.g.,
part-time instructional aide and part-time bus driver, might well
be included in two separate bargaining units represented by two
different exclusive representatives. Such a situation might result
in the employee paying dues to two unions, and might even result
in some confusion, but the result is not contrary to EERA' s
general provision of the right of employees to have a single
exclusive representative.
The Board has also held that substitute employment in other school districts is not an
impediment to the formation of a bargain,ing unit nor would it detract from substitutes'
·community of interest inthe tenns and conditions of employment with the·school district in
question. (Palo Alto Unified School District, et al. (1979) PERB Decision No. 84 ALJ
decision, p. 16 [Palo Alto USD].}
The EERA should be liberally interpreted so as to effectuate its purpose of affording
public school employees the right to organize and be represented in their employment relations
by an exclusive representative. (§ 3540.) Therefore, in view of the foregoing discussion and
authorities, and absent contrary Board precedent, it is found that Substitutes who fill in for
absent Unit members are ''public school employees" subject to section 3540.1, subdivision (j).
II. 	No Presumption of Appropriate Unit
In Sweetwater Union High School District (1976) EERB Decision No. 4 (Sweetwater),
PERB held that there are three appropriate classified units under BERA:· (1) an instructional
aides (paraprofessional) unit; (2) an office~technical and business services unit; and (3) an
operations-support services unit. In Foothill-DeAnza Community College District (1977)
EERB Decision No. 10, the Sweetwater units were made presumptively appropriate, thereby
creating what is commonly called the Sweetwater presumption. Although the Sweetwater unit
configuration is "preferred," such configurations are neither the only nor the most appropriate
units for classified employees as PERB has allowed a variety of other classified units.
·
17

( Compton Unified School District (1979) PERB Decision No. 109.) Here, the unit represented
by PSEA is a combined unit comprised of Office-Technical employees and Paraprofessional
employees. PERB records-of which official notice is taken-show that in or about July
1996, California School Employees Association, Chapter 313 (CSEA) was the exclusive
representative of a separate Office-Technical Unit and Paraprofessional Unit. On July 22,
1996, PERB issued a Unit Modification Order granting. a petition to combine these units into
one, but wamed ..Issuance of this Order shall not be in,terpreted to mean that the Board wol).ld
find this Unit, as modified, to be an appropriate unit in a disputed case." Ih other words, no
determination was made by PERB to find this consolidated unit to be appropriate.
The configuration of this unit-two combined Sweetwater units (i.e., Office-Technical
and Paraprofessional Unit)-shall not be disturbed by this decision. (Arcadia Unified School
District (.1979) PERB Decision No. 93, p. 13 ["The Board will not disturb an ex.isting unit
when its composition is not at issue"]; see also, Santa Clara Unified School District (2007)
PERB Decision No. 1911, p. 6 [PERB is also disinclined to disturb units that are "stable and in
existence for some time"].) Moreover, given that PSEA's consolidated Office-Technical
Paraprofessional unit has not been found to be either appropriate or inappropriate by PERB;
there is no presumption that the existing unit is appropriate. It logically follows that the
standard against which the requested unit (i.e., the Unit plus Substitute employees) is judged
shifts to whether it is an appropriate unit within the meaning of section 3545, subdivision (a).
(See Elk Grove Unffied School District (2004) PERB Decision No. 1688 (Elk Grove USD).)
18

III. 	Unit Determination
Given that there is no presumption to rebut, PERE must weigh the evidence to
determine whether the proposed, unit modification is appropriate based on the factors in section
3545, subdivision (a) which provides:
In each case where the appropriateness of the 1mit is an issue, the
board shall decide the question on the basis of comm1mity 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 oftheuniton the·efficientoperationofthe
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 bf the employer.
Where, as here, the unit represented by PSEA is not a Sweetwater unit, the proper
inquiry is whether the requested unit configuration is an appropriate unit-not whether it is
more appropriate than the existing unit configuration. (Long Beach Community College
District (1999) PERB Decision No. 1315; Elk Grove USD, supra, PERB Decision No. 1688.)
A. Community of Interest
In determining whether there is a community of interest, PERB considers multiple
factors, including: (1) the extent to which employees share education and qualifications; (2)
training and skills; (3) job functions; ( 4) method of wages or pay schedule; (5) hours of work;
(6) fringe benefits; (7) supervision; (8) frequency of contact with other employees; (9)
interchange with other employees; and other related factors. (See, e.g., Elk Grove USD, supra,
PERB Decision No. 1688.) Additional relevant criteria were identified by PERB in Redondo
Beach City School District (1980) PERB Decision No. 114, including sources of funding,
·.
19

purposes of various programs, evaluation procedures, comparison of layoff [and dismissal]
provisions, different instructional practices and working conditions. (Id., citing to Peralta
Community College District (1978) PERB Decision No. 77 (Peralta CCD); Oakland Unified
School District (1977) EERB Decision No. 15.)
The overriding ·consideration is whether the employees share substantial muhml
interests in matters subject to meeting and negotiating. (Fontana, supra, PERB Decision
No. 1623; San Diego Communtty College District (200 L) PERB Decision No. 1445; Monterey
Peninsula Community College District (1978) 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 inquiry then is whether the petitioned-for
classifications share substantial mutual interests in consideration of the totality of
~ircumstances presented pere. (Monterey Peninsula Community College District, supra, PERB
Decision No. 76.)
The Board's treatment of unit detenninations for substitute employees under EERA has
evolved over the years. Early PERB cases found that found s~bstitute certificated employees
lacked a community of interest with regular classroom teachers. (Belmont Elementary School
District (1976) EERB Decision No. 7; Petaluma City Elementary and High School Districts
(1977) EERB Decision No. 9; Oakland Unified School District, supra, EE~ Decision No. 15;
Los Rios Community College District (1977) EERB Decision No. 18). Subsequently, in
Peralta CCD, supra, PERB Decision No. 77, it was held that section 35456 establishes a
rebuttable presumption that all classroom teachers should be placed in a single unit, absent a
6 Section 3545, subdivision (b)(l), provides in relevant part, "In all.cases ... [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. ... "
20

showing of a lack of community of interest between the groups. Two months later, the Board
issued its decision in Palo Alto USD, supra, PERB Decision No. 84 finding that a separate unit
of substitute certificated employees share a community of interest amongst themselves. 7
Subsequently, the Board issued several decisions excluding substitute employees from
certificated bargaining units. (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.)
After these decisions, the Board shifted from its treatment of placing substitute
employees in separate units and adopted a line of cases that applied a more nuanced framework
when considering whether to include substitutes with regular employees. In the seminal case
of Dixie Elementary School District (1981) PERB Decision No. 171 (Dixie 1), the Board found
that a certificated unit which included substitute employees was appropriate. In that case, the
Board found that it was not relevant that individual substitutes may not have expectancy of
continued employment because substitutes, as a class, do expect future employment. That
decision was affirmed by the Board in Dixie Elementary School District (1983) PERB
Decision No. 298 <;Dixie 11) where ·an unfair practice charge had been filed because the district
refused to bargain with the certificated unit after substitutes and temporaiy employees had
been placed in that unit pursuant to Dixie I. The Board found that the district failed to offer
either new facts or arguments of law supporting its contention that substitutes were not
properly placed in the unit of full-time classroom teachers. Subsequently, in Oakland Un~fied
7 However, the Board determined that it would not apply the test formulated in Peralta
CCD, supra, PERB Decision No. 77 where retroactive application of the test would cause
dismption and instability in the existing certificated lmit. (Palo Alto USD, supra, PERB
Decision No. 84, p. 8.)
21

School District (1983) PERB Decision No. 320 (Oakland), the Board affirmed a hearing
officer's decision granting a petition to add all regular certificated substitute employees to the
certificated unit after finding a sufficient community of interest between these two groups of
employees. Similarly, in Palo Alto Unified School District (1983) PERB Decision No. 352,
PERB approved a unit comprised of both substitute teachers and regul?,r teachers
PERB 's unit determination of substitute classified employees remains consistent with
Dixie Elementary School District, supra, PERB D~cision No. 171, and its progeny. For
example, in San~a .Clara County Office of Education (1990) PERB Decision No. 839, the
Board affirmed the hearing officer's decision to grant a lmit modification petition filed by the
union, which sought to add substitute bus drivers to an existing bargaining unit containing full-
time bus drivers. In making the unit determination of classified substitutes, the hearing officer
utilized the same community of interest factors and principals applied to cases involving
certificated substitutes. (Id., pp. 4-5.) The hearing officer concluded that," ... the criteria
used to determine community of interest are the same for certificated and classified
employees." (Ibid.; emphasis added.)8 Thus, the community of interest criteria applies here to
determine whether the proposed unit is appropriate.
1. 	Crossing Guards and Substitute Crossing Guards
The parties have stipulated that the Crossing Guard classification be placed in the
existing Unit. However, the parties have not presented any evidence that such a configuration
would be appropriate. "In a unit modification hearing, the importance of live testimony from
8 Also relevant to this matter is the Board's earlier decision in San Diego Unified
School District (1981) PERB Decision No. 170 where the Board denied the petitioner's request
to carve out a separate unit of substitute bus drivers from the existing unit given that both
groups share a strong community of interest and also to avoid the potential for a fragmented
·work force among all other occ_upational groups in the existing unit.
..
·
·
22

7
incumbents in the disputed positions cannot be overstated." (Fremont Unified School District
(2014) PERB Decision No. 2397.) The Board has held that a Board agent should not accept
parties' stipulated units without scmtiny, which may include conducti?g a representation
hearing and eliciting evidence in support of the stipulated unit. (Ibid., citing to Centinela
Valley Union High School District ( 1978) PERB Decision No. 62.) The record is devoid of
facts showing that Crossing Guards share a community of interest with Unit employees. For
example, there is no showing that the Crossing Guards and Unit employees: share similar
wages hours and fringe benefits; perform functionally equiv~lent work duties; share similar
lines of supervision; or have similar education, certification or training. Accordingly, the
Crossing Guards shall not be added to the Unit. Given that the proposed unit does not include
Crossing Guards, the Substitute Crossing Guards-who presumably perform the same
functions-are also excluded give:p_ the lack of ~vidence showing community of interest among
other classified staff in the Unit.
2. 	Vacant Positions
The Petition seeks to add classified Substitute classifications to the existing Unit.9 The
record shows that there are approximately 135 classifications in the existing Unit. The record
does not support that there are Substitute classifications corresponding to each of the 135
classifications. PERE has long declined to make a determination regarding the appropriate
unit placement of a classification with no incumbent. (Marin Comm1:1nity College District
9 Some clarification may be needed to define the difference between a "position" and a
"classification." In Alum Rock Union Elementary School District (1983) PERE Decision
No. 322, the Board defined "position" as "a group of duties and responsibilities which are
intended to be performed by one employee." A "classification" was defined as "any number of
positions which are sufficiently similar in duties and responsibilities that the same job title,
minimum qualifications, qualifying tests, and salary range are appropriate for all positions in
the class." (Ibid.)
·
23

(1978) PERB Decision No. 55.) This is true even when the parties have reached a stipulation
as to the appropriate unit placement of vacant positions. (Mendocino Community College
District (1981) PERB Decision No. 144a.)
Here, at the time of the filing of the Petition, only the following Unit positions were
filled by Substitute employees: Office Assistant II; Libraty Media Technician; LAN
Administrator; Campus Security Specialist; Health Services Technician; Program Aide
ESS/ASES; Lead Middle School ASES Assistant; Instructional Assistant-Preschool;
Instructional Assistant ELL; Instructional Assistant I-Special Education; Instructional
Assistant II-Special Education; and Athletic Trainer. Excluding the above-referenced
classifications, there is no evidence in the record to show that all the classified positions in the
Unit are currently filled by an incumbent. PERB also cannot speculate that Substih1tes will fill
in for each type of absent classified position in the Unit. Thus, PERB cannot make a unit
determination for the other petitioned-for Substitute classifications since there is no evidence
that there are any employees occupying corresponding Unit positions.
3. 	Office Assistant II, Library Media Technician: LAN Administrator; Campus
Security Specialist: Health Services Technician: Program Aide ESS/ASES: Lead
Middle School ASES Assistant; Athletic Trainer: and Instructional Assistant~
In determining whether a community of interest exists pursuant to .section 3545, all
further references to ~•substitutes" shall be to the aforementioned classifications.
a. 	Job Functions and Duties
In Santa Clara County Office of Education, supra, PERB Decision No. 839, the Board
approved a unit modification petition to add substitute drivers to a pennanent bus driver
bargaining unit finding that "[b ]argaining unit drivers transport students in minivans ...
substitute drivers drive the same vans and transport the same students over the same routes as
24

, unit drivers." Moreover, "like the permanent driver, the substitute driver is required
to
check
the oil, gas, motor, lights, emergency buzzer,
etc
...
before beginning
the
route." (Id.,
p.
3 of
the
ALJ's Proposed Decision.) Similarly here, the relevant Substitutes are tasked with
performing
the
same work
as
Unit members they temporarily replace. In reviewing
the
job
descriptions
and
examples of job duties
of
the Substitutes, the disputed positions perform
either the same job functions or a subset of those functions as would have been performed by
the
absent Unit members. The work function of Unit members
varies on any
given
day;
however, the Substitutes
are
assigned to perform
the
duties
the
absent Unit member would
have performed that day. Accordingly, there are similar
(if
not identical) work duties and
functions between these Substitutes and their classified counterparts.10
b. 	Qualifications and Education
Individuals may apply
to
substitute in classified District positions either through
postings by the District's Personnel Commission,(PC) or.upon a request from a specific school
site. If the individual applies through the
PC,
s/he undergoes a screening interview, but
if
a
site recommends a specific individual, the PC will assess whether the individual meets the
minimum qualifications. To be hired as a probationary or permanent employee, an individual
must
go
through the PC's competitive examination process, which
is
more rigorous. I
do
not
find these differences to be dispositive of whether both groups share a community of interest
given that the Board recently observed, "the fact that an employer has a more complicated or
lengthier hiring process for its classified employees whereas [the petitioned-for Noon-Duty
Aides] are hired 'informally' and more or less at the discretion of the individual school
10
The fact that substitutes
do
not have District e-mail accou~ts does not negate the
showing that substitutes perform essentially the same work functions as the absent Unit
me1nbers.
25

principals, does not dictate that [Noon-Duty Aides] belong in a unit separate from the
classified employees. (Center USD, supra, PERB Decision No. 2379, pp. 5-6, citing to
Pittsburg, supra, EERB Decision No. 3.)
The Substitute classified employees possess job qualifications similar to those
possessed by the employ~es in the existing Unit. Generally, Substitutes are required to pass
minimum qualifications that are also required of their classified c.ounterparts including, but not
limited to: first aid certifications; passing background checks and physical exams; and
completing new employee orientation.
There is evidence that some Substitute classifications share similar qualifications with
other Unit members. Substitute Program Aides in the ESS/ASES programs must possess the
same qualifications as their regularly employed counterpart Program Aides in the same
programs. Individuals occ-o.pying the Substitute Instructional Assistant classification share
similarities with Instructional Assistants in the Unit since they meet the same qualifications
requiring them to pass the No Child Left Behind (NCLB) examination. The record also shows
that although the job description for the Instructional Assistant I-Special Education requires
specialized coursework in child development for special needs students, plus one year of
experience in a specialized work environment, this requirement 'is waived for the Substitμte
classification. Library Media Technicians are required to complete a two-hour NCLB
certification examination in addition to completing a qualifying examination relevant to library
skills. The Library Media Technicians in the Unit must also have at least two years of
experience working in a library or media center. It is unclear from the record whether
Substitute Library Media Technicians actually have similar qualifications; however, it is
undisputed that Substitutes are not required to have the same level of education or experience
26

to perform the duties ofLibrary Media Technicians. The Health Services Technician and their
Substitutes are required
to
attend and complete a Health/Services orientation/training.
Although a Health Services Technician must have
two
years of experience providing health
servi.ces
to
children and/or working
in
a school office, such experience
is
not required
to
qualify
as
a Substitute Health Services Technician.
As
such, there
is
some
evidence that they have
similar qualifications.
No specific facts
were
provided concerning the work qualifications and education level
of the Lead Middle School
ASES
Assistant, LAN Administrator, Campus Security Specialist,
Office Assistant II
11
and Athletic Trainer. Also lacking from the record was similar evidence
for their Substitute counterparts. However, the record shows that the Substitutes are not
requir~d to meet
the
same minimum certification requirement
or
possess the same qualification
and education levels of the Substitutes' corresponding classifications. With the exception of
the Health Services Technicians, the above Substitutes are also not required
to
undergo any
form
cif
training
as
a condition
to
employment.
'
c.
	Sources
of
Funding
The District funds a Substitute employee's compensation from the same revenue source
used to pay the incumbent in the classified position. Notwithstanding, any differences in
funding for the Substitutes and Unit employees is ~endered moot under Stanislaus County
Office
of
Education (1993)
PER.13
Decision No. 1022, in which the Board approved a unit
modification petition despite differences in, among other things, funding sources. (See also,
Fairfield-Suisun Unified School District (1983) PERB Decision No. 370 [differences in
ll However, the record provides that substitute "clerks" are not required to hold similar
educational or experience qualifications to fill the substitute positions presumably for either the
Office Assistants II or Administrative Assistants I.
27

funding between adult education teachers and regular certificated teachers "are not substantial
enough to establish a lack
of
community
of
interest"].)
d.
	Employee Contact, Integration and Interaction With Others
Active Substitutes (i.e., those Substitutes who
fill-in
for absent Unit members for ·
limited and temporary time) interact with other Unit members to the same extent as their
counterpart absent Unit members. Additionally, it is not the District's policy to separate active
Substitutes from members
of
the existing Unit. Because the District does not have separate
work spaces for Substitutes, Substitutes work at the same work location as the absent
incumbent. Thus, when a Substitute fills in for an absent PSEA member, he or she presumably
works in a Unit member's workspace
..
On some days, Substitutes fill
in
for positions in another bargaining unit or for
confidential employees. Accordingly, the level ofinteraction may vary depending on the
assigmnent and the type
of
positions being.filled as a Substitute. This does not detract from
the finding that individuals serving as Substitutes for absent Unit members have similar
interactions and interchange
of
functions with Unit employees and with other Substitutes.
Accordingly, there is sufficient evidence to conclude that Substitutes and Unit members share
similarities in employee contact, integration and interaction with each other. .
e
..
	Wages, Hours, and Other Working Conditions
. 	'
Unit positions are compensated on a salary schedule set forth in the CBA which
contains various salary ranges for Unit members. Substitutes are compensated oh an hourly
basis comm~nsurate with the hourly rate paid for Unit employees. The record shows that the
Substitute Health Services Technician is compensated at Step 1
of
Range
26-the
f~st step in
the sala1y range of the corresponding Health Services Technician. A similar compensation
28

pattern is applied for candidates substituting for either the Campus Security Specialist, Office
Assistant II, Instrnctional Assistant, Library Media Assistant or Program Aide classifications.
Substitutes and Unit members have similar working hours which can vary between one
to eight hours. However, the hours
of
the Substitutes are based on an as-needed basis by the
District. Unit members have differentwork year schedules. For example, 9.5 month
employees work 185 days per year, while 12 month employees work as many as 245 days per
year. Substitutes' work years also vary depending on their assignments. For example, in less
than one year, some Substitutes worked
IO
or fewer days while others worked as many as 113
days. 	However, Substitutes do not have separate work schedules because theit assignment is
transitory and dependent on the District's operational need during any particular time period.
The differences in wages, hours and other working conditions between the two groups
of
employees is not a persuasive argument for rejecting a proposed unit that includes 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, supra, PERB Decision
No. 320, p. 5), and therefore "would be negotiable
if
the
m1it
modification petition is granted."
(Fontana Unified School District, supra, PERB Decision No. 1623; Redwood City Elementary
School District (1979) PERB Decision No. 107; El Monte
Union
High School District (19~2)
PERB Decision No. 220.)
. 	.
Unlike Substitutes, Unit employe~s receive a number
of
statutory benefits including:
health and welfare, post-retirement health instu-ance benefits, and accrual
of
vacation leave.
Substitutes designated as "limited-term employees" are barred from receiving similar
entitlements pursuant to the District's personnel rules. Specifically, PC Rule 30.200.4(D)
states that limited-term employees "shall not earn seniority credit, nor be grarited benefits
29

regularly given to the Classified Service," unles/they are appointed to fill in for employees for
more than six months. Some Substitutes are entitled to earn sick leave or holiday pay provided
they work continuously
for
more than six months. (PC Rule 30.200.4.) However,
of
the 124
individuals that worked
as
Substitutes between July
1,
2012 and February 25, 2013, none
worked at least six months.
The District asserts that it is precluded under PC Rule 30.200.4 from assigning a
seniority date
to
Substitutes, or from awarding them benefits regularly received by classified
employees unless the six month exception in PC Rule 30.200.4
is
met.
fdo
not find this
concern sufficiently compelling to justify the exclusion
of
Substitutes from the Unit. Section
3540 states that:
This chapter shall not supersede other provisions
of
the
Education
Code and the rules and regulations of public school employers
which establish and regulate tenure or a merit or civil service
system or which provide for other methods of administering
employer-employee relations,
so
long as the rules and regulations
or other methods of the public school employer
do
not conflict
with lawful collective aereements.
This supersession provision is construed in a limited fashion by the Courts and PERB.
In Sonoma County Bd.
of
Education
v.
Public Employment Relations Board (1980) 102
Cal.App.3d 689, the Court
of
Appeal discussed whether a local board
of
education was
required to negotiate over salaries
to
be paid to job classifications that were covered under the
Education Code's merit system provisions. The court rejected the Board of Education's
argument that the collective bargaining provisions of the BERA were subordinate to the
existing merit system rules. The court found that "the Legislature by clear implication
included the subject matter of compensation ( or wages) within classification within the 'scope
of representation,"' thus indicating that bargaining under the EERA was required, subject to
30

limitations imposed by the Education Code. (Id., pp. 700-701.) Although the issue before the
court involved the interaction between the Education Code and the BERA, the court also stated
that the EERA was intended to "prevail over conflicting enactments and rules and regulations
of the public school merit or civil service system relating to the matter of wages or
compensation of its classified service." (Id., p. 702:) Similarly, PERB has held that an
employer's rules and regulations do not trump the BERA. (San Francisco Unified School
District {2008) PERB Decision No. 1948 [the "Legislature intended to require parties to
bargain over compensation despite the existence ofrelated merit system rules].) The Board
also noted that section.3540 should be read to allow locaJ regulations that supplement the
EERA's statutory scheme and do not conflict with the purpose of the Act, i.e., "providing a
uniform basis for recognizing the right of public employees to join organizations of their own
choice, to be represented by.the organizations in their professional and employment relations
with public school employers .... " (Id., p. 11.) To the extent that there is any conflict
between the EERA and the PC Rules prohibition on negotiable subjects, the BERA trumps, and
the District's maintenance of rules that contradict the BERA, if any, does not warrant denying
organizational rights to Substitutes.
As previously noted, section 3540 provides, in relevant part, that the BERA "shall.not
.supersede other provisions of the Education Code." In San Mateo City School Dist. v. Public
Employment Relations Bd. ( 1983) 33 Cal.3d 850, the California Supreme Court held that, when
the Education Code "clearly evidences an intent to set an inflexible standard or insure
immutable provisions,'' the parties may not negotiate a collective bargaining provision that
would replace, set aside or annul the mandatory Education Code provision. (Id., pp. 864-865,
quoting Healdsburg Union High School District and Healdsburg Union School District (198q)
31

PERB Decision No. 132 (Healdsburg).) In other words, a subject governed by a mandatory
section
of
the Education Code does not fall within the scope
of
representation under the
EERA.
12
Education Code section 45103 excludes Substitutes from classified service in non-
merit districts. In contrast, Education Code section 45256 contains no such exclusions for
merit system districts as is the case here. Indeed, Educatioh Code Section 45286 expressly
authorizes the personnel commission
of
a merit system·district to promulgate rules governing
the employment
of
Substitute
employees-and
in fact, the District's Personn~l Commission
has adopted such mles, including but not limited to PC Rule 30.200.4. There does not appear
to be a direct conflict between the Education Code and the BERA given that there is no express
prohibition against the District from modifying such PC Rules to provide meaningful benefits
to Substitutes after engaging in the collective bargaining process with the exclusive
representative, subject to any limitations imposed by the Education Code. Alternatively, the
District has also not established that its bargaining obligations would be excused based on any
immutable provisions in the Education Code pertaining to merit districts. Accordingly. the
District has not rebutted the principle enunciated in Oakland, supra, PERB Decision No. 320
that such benefits are outside employer's control
if
this petition were granted.
·
.
f. 	Supervision, Evaluation, Discipline and Layoff
'
The record provides that the District does not have a separate supervisory structure for
Substitute employees. Specifically, the Substitutes who are filling in for their respective Unit
members are supervised by the same supervisor as the absent Unit member. As previously
discussed, the Substitutes perform the same job functions on the day their respective Unit
12
The Board has held that there are subjects, such as layoff of classified employees,
and the causes and procedures leading to disciplinary action, for which the Education Code has
"fully occupied the field" such that collective negotiations on these subjects are prohibited.
(Healdsburg, supra, PERB Decision No. 132.)
32

member classification
is
absent. Supervisors assess whether
the
Substitutes can perform the
duties.
of the absent Unit member
and
assign them
work
accordingly.
The
District asserts
an
individual serving
as
a Substitute may report
to
various other supervisors depending-on their
assignments. However, when a Substitute fills in for the incumbent absent Unit member, the
Substitutes still retain common supervision
as
their absent counterparts in the Unit.
Evaluations are done by designated supervisors of Unit inemhers in accordance with the
CBA which mandates that Unit employees receive a formal evaluation annually or every other
year
..
While the Substitute
~mployees
do
not receive
any
fixed method of evaluation,
the
record shows that
the
District does not strictly adhere to the frequency of evaluations required
in the CBA. Thus, it appears that Unit employees
do
not consistently receive an evaluation at
least every year. Section 3543.2 expressly enumerates evaluation procedures
as
a negotiable
matter.
In Center USD, supra, PERB Decision No. 2379, the Board did not find persuasive the
argument that a community of interest does not exist between Noon Duty Aides and classified
employees due
to
differences in evaluation standards because such topics would be subject to
labor negotiations. Similarly, I find that any difference in the Pistricfs evaluation procedures
( or lack thereof) does not detract from Substitutes' community of interest with Unit members.
The District has adopted disciplinary procedures that require that there be "cause" for
taking disciplinary action against Unit members.
	(AP
4.313.1.) The District also adheres to a
system of progressive discipline.
(AP
4.313.) It is unclear from the record whether such
disciplinary procedures are applicable
to
Substitutes; however,
.it
should be noted the District
may terminate a Substitute's employment by simply electing not to contact the individual for
future assignments. Additionally, lJnit members must be laid off in accordance with the CBA
which provides members with rights regarding notice, bumping and reemployment. No such
' 	'
33

rights are afforded to Substitute employees. Negotiable subjects of bargaining include
disciplinary procedures not preempted by the Education Code. (Healdsburg Union High
School District and Healdsburg Union School District, supra, PERB Decision No. 132, p.,81.)
By the same token, layoff procedures are also negotiable. (South San Francisco Unified
School District (1983) PERB Decision No. 343.) Should this petition be granted, the District
would be obligated to negotiate over such procedures and terms and conditions of employment.
Further, if the procedures set forth in the District's personnel rules do not apply to Substitutes,
as discussed above, the Education Code does not preclude modifications to the District's
personnel mles to incorporate different terms and conditions of employment resulting from
labor negotiations to the extent permitted by the Education Code.
In sum, the differences in evaluations, disciplinary procedures, and layoff procedures·
between the Stlbstitutes and Unit members is not a factor that weighs·heavily in favor of
finding no community of interest between the two groups since, to the extent that such
procedures are not addressed by Education Code, they would be subject to negotiation. (See
e.g., Center USD, supra, PERB Decision No. 2379.)
g. 	Expectation of Continued Employment
The District maintains a list of available Substitute employees. Those individuals on
the list can expect to have a reasonable expectation of future employment as a Substitute
(absent any concerns from the District concerning performance or their prior conduct).
However, it is within the District's discretion to select an individual from the list for a
Substitute assignment and it does not appear that selections are based on the seniority of the
Substitute candidate. Some Substitutes are hired into Unit positions; however, there is no
absolute expectation that Substitutes will be hired to fill such positions upon employment as a
34

Substitute. The
turno:ver
of
Substitutes
is
higher than
for
employees in the Unit. There are a
number of Substitutes who have worked
for
the District in such capacity
for
several years.
·
There
is
evidence in the.record
to
show that
some
Substitute employees work
as
many
as
113
days during an eight month period, while others work fewer than
10
days in
the
same
time period. The Board has not established a cutoff date for the number of days that an
employee must work before being considered a "casual" employee,
13
and
therefore, excluded
from a bargaining unit. Further, this Board has refused to adopt a standard for finding that
teachers have an expectation of reemployment based
on
the
on
the number of days they work
as distinguished from other employees who work more days. (Palo Alto
USD,
supra, PERB
Decision
No.
84, adopting ALJ's decision, p. 12.) Here, the parties have offered
no
arguments
to show that the Substitutes are "casual" employees and I cannot infer that Substitutes maintain
such status. However, there
is
sufficient evidence to conclude that Substitutes have a
continued expectation
of
employment. Extrapolating from the evidence, it appears the District
utilized
at
least 1184 Substitute workdays from July
l,
2012 through February 25, 2013. As
such, Substitutes appear to
be
an integral
pal"t
of the District's operations; without them, it is
doubtful that the District could manage its school operations effectively.
.
. 	.
For the above reasons, it
is
found that the above group of Substitute classifications
shar~s a cohesive community of interest with the existing Unit.
13
Casual employees are those who, due to their sporadic or intenriittent relationship
with the employer, lack a sufficient community of interest with regular employees to be
included in the regular unit. (Unit Determination for Employees
of
the California State
University and Colleges (1981) PERB Decision No. 173-H, citing Mission Pak Co. (1960) 127
NLRB 1097.).
35

·B.
Efficiency
of
Operation
The adverse impact of accreting classifications
to
an existing unit
is
typically an
argument promulgated by
an
employer concerned about its resources. PERB must consider the
effect
of
a proposed unit on an employer's ability
to
operate efficiently. (§ 3545, subd. (a);
San
Francisco Community College District (1994) PERB Decision No. 1068.) PERB balances
any impact on efficiency with the "employees' right
to
effective representation in appropriate
units."
(San
Diego Unified School
Di.Strict
( 1977) EERB Decis~on No. 8.) 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, 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; Fontana 1 supra,
PBRB
Decision
No. 1623.) Indeed, in situations in which employees perfom1 :functions for more than one unit,
PERB has held that they
ar(?
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.)
The District's argument that additional negotiations concerning Substit~tes will affect
the efficiency
of
the District's operation is unavailing. The District acknowledges that the
disputed classifications have a "theoretical right to representation" under the EERA; however,
the District advances numerous arguments for why the proposed addition to the Unit would be
unworkable. The District asserts that the addition of Substitutes
to
the existing Unit would
cause disruptions to the District's operation that outweigh any gains that could be achieved
through collective bargaining because Substitutes are not eligible for benefits, cannot acquire
36

seniority, and a majority of them perform work on an infrequent basis. Further, argues the
District, PSEA and the District have negotiated a CBA that
is
set
to
expire on June
30, 2016,
with limited reopeners, and the District will be
burdened by additional negotiations regarding
Substitutes during the life of the contract.
In Center
USD,
supra, PERB Decision No. 2379, the employer similarly accepted that
Noon-Duty Aides are entitled to collective bargaining rights, but made an
inefficiency
argument against their inclusion in the classified unit because Noon-Duty Aides
do
not share a
community of interest and this would require the employer
to
conduct
two
separate bargaining
sessions at one table. (Id., p. 12.) The Board found such argument without merit given that it
was difficult
to
discern the burden imposed on the employer if the parties negotiated separately
or
at
the same table with the classified unit. (Ibid.) The Board also acknowledged that similar
efficiency arguments were rejected
in
El Monte
Union High
School District, supra, PERB
Decis1on No. 142, where the employer had similar concerns about the inclusion of substitute
teachers in the same unit as regular teachers reasoning 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." (Citation omitted; Center
USD.
supra,
PERB
Decision No. 2379, p. 12.)
As discussed above, pursuant
to
Oakland, supra, PERB Decision No. 320 and Fontana1
supra, PERB Decision No. 1623, differences in terms and conditions of employment could be
negotiated. Additionally, there are no immutable provisions under the Education Code that
prevent the District from incorporating into an agreement terms and conditions of employment
that are of mutual benefit to Substitutes and unit members provided such terms do not conflict
with the Education Code--to which the District
has-
not argued any conflict exists. (Berkeley
37

Unified School District (2012) PERB Decision No. 2268, p. 9.) To the extent the District
argues a conflict exists with the PC Rules, this does not forestall the parties from engaging in
the collective bargaining process to negotiate terms which replace, set aside, or nullify any
purported inflexible provisions of the external law referenced in the PC Rules established
under the Education Code. (San Mateo City School Dist. v: Public Employment Relations Bd.,
supra, 33 Cal.3d 850, 864). As previously discussed, there is no evidence that there exists
"immutable provisions" or an "inflexible standard" against adopting rnles that provide benefits
and seniority rights. to Substitute employees.
The District's assertion that it will be presented with additional burdens of negotiating an
agreement prior to the June 30, 2016 expiration of the current CBA does not seem plausible.
The parties are always free to mutually agree to engage in the collective bargaining process
absent any reopener provisions. (Inglewood Unified School District (2012) PERB Decision
No. 2290 [each party is not obligated to engage in collective bargaining pursuant to a zipper
clause unless there is mutual agreement to do so or a reopener clause permits bargaining during
the life of the agreement].) To the extent that this may cause additional burdens on the District,
this argument has been previously considered and disfavored by the Board. (See e.g., Livermore
Valley Joint Unified School District (1981) PERB Decision No. 165 ["The fact that negotiating
may impose a burden on the employer was tmdonbtedly considered by the Legislature but f01md
not to outweigh the benefits of an overall scheme of collective negotiation."];Antelope Valley
Community College District (1981) PERB Decision No. 168 [The Legislature found that "the
potential loss of time spent in negotiations does not outweigh the benefits of an overall scheme
of collective bargaining"].)
38

The District asserts that Substitutes filling in for Unit employees could "potentially" fill
in as Substitutes for confidential classified employees at a later appointment period. The
District asserts this is not administratively feasible because sporadically employing tmit
members as confidential employees could compromise the District's private information
maintained by confidential employees.
~ection 3540.l, subdivision (c) defines a confidential employee as:
an employee who is required to develop or present management
positions with respect to employer-employee relations or whose
duties normally require access to confidential information that is
used to contribute significantly to the development of
management positions.
· PERB and its predecessor, the EERB, have long recognized that a public school
employer is:
allowed a small nucleus of individuals who would assist the
employer in the development of the employer's position for the
purposes of employer-employee reiations ... [who] would be
required to keep confidential those matters that if made public
prematurely might jeopardize the employer's ability to negotiate
with employees from an equal posture.
(Sierra Sa7?ds Unified School District (1976) EERB Decision No.~' at p. 2. [Sierra Sands].)
In Fremont Unified School District (1976) EERB Decision No. 6, the Board held that
employer-employee relations includes "at the least, employer-eri1ployee negotiations and the
process of employee grievances." Not all involvement in such areas, however, has been
deemed substantial enough to warrant a confidential designation. (See, e.g., Franklin-
McKinley School District (1979) PERE Decision No. 108, where a business office supervisor
was fo11;nd not to be confidential despite having costed out negotiations proposals.) In
addition, confidential status does not turn on whether the individual's functions may be
transferred to others; instead, the Board must look to what the work actually entails.
39

(San Rafael City High School District (1977) EERB Decision No. 32, p. 4.)
No
evidence was
presented here to show that any Substitutes who fill in for absent confidential employees
actually perform confidential duties, such as preparing management proposals for labor
negotiations or processing employee grievances. As such, there is insufficient evidence to
conclude that Substitutes actually performed
or
will perfonn the confidential duties
of
their
absent CQunterparts. Additionally, the District's efficiency argument must also fail since the
parties have stipulated that
if
the unit modification petition is granted, Substitutes in the U1?t
must not also include those substituting in confidential positions.
14
The District contends that pursuant to section 3546,
a1:1
employer must deduct a "fair
share service fee" from employees
in
the Unit,
but
if Substitutes are added, this would affect
the District's efficiency
for
the following reasons: (1) the District is uncertain whether
it will
.be required to deduct some fraction
of
dues from Substitute paychecks each time the Substitute
is appointed to a Unit position; and (2) requiring fair shares fees
of
the petitioned-for
Substitutes.but not
of
other substitute employees, would make
it
difficult for the District to fill
those positions requiring dues payment.
Under the BERA, the permissible organizational security arrangements are
"maintenance
of
membership" and "agency fee."
(§
3540.1, subd. (i)(1)(2).) Under the
"maintenance
of
membership" arrangement, a p~blic school employee may·decide whether to
join an employee organization, but
if
the employee does join, he or she must, as a condition
of
continu'ed employment, maintain his or her membership in good standing for the duration
of
14
The District has not presented convincing arguments (or supporting legal authority)
that would show, for example, that the District is ·constrained from establishing a screening
process for ap1Jointing individuals who would actually perform confidential duties to avoid
potential conflicts and to ensure that the District maintains the "small nucleus" envisioned in
Sierra Sands, supra, EERB Decision No. 2.
40

the labor agreement.
(§
3540.L subd. (i)(l).) The employee may, however, terminate his or
her obligation
to
the employee organization within 30 days following the expiration of the
labor agreement. (Ibid.) Under the "agency fee" arrangement, the employee, as a condition of
continued employment must either (1) join the recognized
or
certified employee organization,
or (2) pay a service fee to the organization that may not exceed the standard initiation
fee,
periodic dues, and general assessments
of
the organization for either (a) the duration
of
the
labor agreement, or (b) a period
of
three years from the effective date
of
the agreement,
whichever comes first.
	(§
3540J(i)(2).)
Organizational security is expressly within the scope of representation under section
3543.~, subdivision (a), and thus may be subject to negotiations. The amount
of
the fee is
governed under section 3546, subdivision (a), which provides that, upon notice to the employer
by the exclusive representative, the amount
of
the
fee
shall be deducted by the employer from
the wages or salary
of
the employees and paid to the employee organization. Accordingly, the
amount
of
the fee charged by the employee organization is not negotiable because the amount
of
the fee is nowhere listed as a negotiable subject and there is "no relationship
of
agency fees
to
an
enumerated subject
of
negotiation." (Fresno Unified Schop/ District (1982) PERB
Decision No. 208'.) PERB stated in one
cas·e
that the employer's interest
i_n
negotiating an
agency fee is "limited to its willingness to impose on its nonunion employees an agency fee
requirement and, if so, whether an authorization election is desirable," and limited to seeking
some provisions that provide the employer protection against liability in the event of a dispute
over the appropriateness of the fees withheld. (Ibid.)
The District's concern that its operational efficiency will be affected by not knowing
the service fee deduction amount for Substitutes does not support denying the instant petition.
41

Any logistical aspects concerning organizational security arrangements are proper for
bargaining per section 3543.2, subdivision
(a)1
5; while the specific fee to he deducted from the
wages
or
salaries of Substitute employees may be ascertained
at
PSEA's request pursuant
to
section 3546, subdivision (a). However, there is
no
requirement that all Unit members and
Substitutes be charged
the
same fees. (See e.g., Los Rios College Federation
of
Teachers,
AFTICIO (Barth) ( 1991) PERB Decision No. 882 [holding that under the standards set forth
in
Chicago Teachers
Union
v.
Hudson (1968) 475 U.S. 292 (Hudson)
for
the collection
of
agency
fees, there
is
no
requirement that all nonunion members must
be
charged the same agency
fee].)
As
such, fees may also be deducted based on the percentage
of
the Substitute's salary or
wages. (Los Rios College Federation
of
Teachers, 4,FT/CIO (Barth), supra, PERB Decision
No. 882.) Because the District has not yet received PSEA's request for the amount
of
service
fee
to be deducted, I find that the District's efficiency argument unconvincing .
.The District also has concerns that requiring Substitutes for Unit positions to pay
fair
shares fees while not requiring fair share fees for non-Unit employees would make it difficult
for the District to fill those positions requiring fair share fee payment. However, I discern no
evidence in the record that would support the assertion that individuals would be discouraged
from filling Substitute positions in the Unit.
·
Under section 3546, subdivision
(±),
the District is required to provide the home
.addresses
of
Unit employees to PSEA so that PSEA could comply with the notification
requirements in Hudson, supra, 475 U.S. 292. The District questions whether the District
would need to provide PSEA with the names and addresses for Substitutes who work
iS
Any District operational burdens associated with negotiations concerning
organizational security is not sufficient justification for finding the proposed unit
inappropriate. (Livermore Valley Joint Unified School District, supra, PERB Decision
No. 165.)
42

temporarily
for
the District in such classification. The District also asserts it will
be
unable to
provide the home addresses in advance until the Substitute accepts
an
assignment in a
petitioned-for position. Under section 3546, subdivision (f), the
D~strict is
required to provide
the names and addresses of each member of the Unit, including those
who
have accepted a
temporary Substitute assignment. There
is no evidence that this places any burden on the
District sufficient to outweigh the representational rights of Substitutes.
16
The District argues that the addition of the Substitutes
to
the
Unit presents a number of
administrative impracticalities and implicates legal dilemmas affecting PSEA. In particular,
the District questions whether PSEA will be required to send notices under section 3546,
subdivision (f), to each individual
who
Substitutes in a petitioned-for position, even ifhe or·
she only Substitutes for one work day and never returns to District employment. These
concerns are not relevant for determining whether the proposed unit is appropriate. In
San Ramon Valley Unified School District (1989) PERB Decision No. 751, the Board held that
the District
is
not liable for the exclusive representative's alleged failure
to
comply with the
dictates of the United States Supreme Court's decision in Hudson, supra, 475 U.S. 292. Thus,
there
is
no affirmative duty upon the District to police PSEA's compliance with the notice
re9.uirements set forth in Hudson.
(San Ramon Valley
Unified School District, supra, PERB
Decision No. 751, p. 2.)
·
16
There is nothing precluding the parties from mutually agreeing to update their
records to reflect which employees or individuals actually belong in the PSEA unit. This can
be negotiated into language
as
part of the organizational security provision. Additionally, it is
not unusual for the organizational security provision to include language requiring the
exclusive representative to indemnify the employer from any lawsuits or claims arising out of
the organizational security provision. (Sweetwater Union High School District (2001) PERB
De~ision No. 1417; section 3546, subd. (e).)
.
43

Similarly, the District questions whether PSEA could comply with its legal obligations
to its members under Section 3546.5 which requires unions to make available financial records
to its members: For example, the District questions whether any Substitute can petition to.
view PSEA's financial records after the conclusion
of
their Substitute assignment to a PSEA
position. Section 3546.5 specifically provides: ..In the event
of
failure
of
compliance with this
section, any employee within the organization may petition the board for an order compelling
such compliance, or the board may issue such compliance order on its motion." (Emphasis
added.) Viewed in this context, there is no independent affirmative duty upon the employer
(here, public school employer) to ensure the exclusive representative complies with its legal
obligations to disclose financial reports to employees under section 3546.5. Rather, it is the
Board that must first determine
if
a union's actions are violative
of
the EERA. Further, only
affected employees have standing to motion this Board for alleged noncompliance with section
3546.5. Accordingly, there is no evidence to discern that the District would be burdened by
potential liability to ensure the adequacy
of
PSEA's procedures.
.
The District asserts that if the instant petition is granted, it would be unclear how PSEA
would have its Substitute members vote on contract terms that do not affect them and given
that the identity
of
the Substitute positions change on a day-to-day basis. The District also
points out that it remains "unspecified how Substitutes filling in for absent PSEA unit
members will be permitted to exercise their right to vote on PSEA matters." This argument,
again, is not relevant.for making a unit determination in that it has no impact on the District's
operating efficiency. PERB's role in this proceeding is not to evahiate whether PSEA will be
able to negotiate favorable terms and conditions
of
employment on behalf
of
its members who
may potenti,ally have·different interests. (Santa Ana Unified School District (2010) PERB
44

Order No. Ad-383.) Thus, PERB need not review voting procedures or practices
for
making
unit detennfoations. Any internal union affairs and procedures having "a substantial impact on
the relationships of unit members
to
their employers" that violate
an
.exclusive representative's
duty
to
fair representation
un9-er
section 3544.9 are subject
to
unfair labor cbarges subject
to
PERB's review. (Service Employees International
Union,
Local 99 (Kimmell) (1979)
PERS
Decision No. 106; section 3543 .6,
subd.
(b
).) Thus, an employer must not intervene to address
the lawfulness of a union's internal procedures affecting voting or to police
the
union's
actions, lest it
be
held liable for interfering with the administration of the union.
17
In sum, the
concerns addressed by the District pertain mostly
to
internal union affairs and are not factors
that impact the efficient operation of the District orthe community
of
interest factors above.
For these reasons, the District's assertion that the accretion of Substitutes to the Unit would
impede the school's ability to operate efficiently is rejected.
CONCLUSION
PERB cannot make a unit deteril.llllation concerning the Crossing Guard classification
despite the parties' stipulation in favor
of
its proposed addition to the Unit. Further, the
Petition seeks
to
include all classified Substitutes filling in for absent Unit members; however,
PERB cannot make unit determinations when there is no evidence establishing that all
petitioned-for Substitutes have actually filled vacant positions.18
17
This is exemplified in section 3543.5, subdivision (d) which states that it is unlawful
for a public school employer to: "Dominate or interfere with the fmmation or administration
of any employee organization, or contribute financial or other support to it, or in any way
encourage employees to join any organization in preference to another."
18
However, the parties may agree to further modify the Unit to add unrepresented
classifications or positions not included in the Order infra.
45

At the time the unit modification petition was filed, there were incumbents in the
following Substitute classifications: Office Assistant II, Library Media Technician; LAN
Administrator; Campus Security Specialist; Health Services Technician; Program Aide
ESS/ASES; Lead Middle School ASES Assistant; Athletic Trainer; and Instructional
Assistants. Comparing the community of interest factors with the above Substitute
classifications and those in the Unit, I find that both groups share mutual interests in numerous
areas, including: job duties, interaction and interchange with other employees, qualifications,
discipline, training, supervision, wages, and work hours.
Additionally, the District has not evidenced meritable co11cerns that the proposed
accretion: _of Substitutes to the Unit would impede the efficiency of its operations. Finally, no
evidence was offered regarding established practices at the District in the context of
negotiating with these employees, and thus, this factor plays no part in this Proposed Decision.
PROPOSED ORDER
Based on the findings of fact, conclusions oflaw and the entire record herein, PSEA's
unit modification petition is GRANTED, in part. It is hereby ORDERED that the following
Substitute classifications be placed in the Office/Technical and Paraprofessional Unit: Office
Assistant II, Library Media Technician; LAN Administrator; Campus Security Specialist;
Health Services Technician; Program Aide ESS/ASES; Lead Middle School ASES Assistant;
Athletic Trainer; and Instructional Assistant.
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 (PERE or Boar_d) itself within 20 days of service of this Decision. The
Board's address is:
46

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento,
CA
958ll-4124
(916) 322-8231
FAX:
(916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number
the
portions of
the record,
if
any, relied upon for such exceptions. (Cal.
Code Regs., tit. 8, § 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
afao
considered "filed" when received by facsimile transmission before the close of
business together with a Facsimile Transmission Cover Sheet
or
received by electronic mail before
the close
of
business, which meets the
requirf:\ments
of
PERB
Regulation 3213
5,
subdivision (
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. Proo~
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).)
47