San Joaquin County Office of Education (PERB 1627E)

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SAN JOAQUIN COUNTY OFFICE OF

EDUCATION,
Employer, Case No. SA-RR-1043-E
and PERB Decision No. 1627
CALIFORNIA SCHOOL EMPLOYEES May 4, 2004
ASSOCIATION,
Petitioner.

Appearances: Atkinson, Andelson, Loya, Ruud & Romo by Paul M. Loya, Attorney, for
San Joaquin County Office of Education; Maureen C. Whelan, Staff Attorney, for California
School Employees Association.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the San Joaquin County Office of Education (County)
to a Board agent’s proposed decision (attached) finding appropriate a unit petitioned for by the
California School Employees Association (CSEA). The petition for recognition sought to
‘ establish a bargaining unit comprising the classifications of recruiter, migrant services
assistant, secondary school advisor, support services facilitator and youth advocate within the
County’s migrant education program.

The Board has reviewed the entire record in this case, including the proposed decision,
the County’s exceptions and CSEA’s response. The Board finds the Board agent's findings of

fact and conclusions of law to be free of prejudicial error and adopts the them as the decision

of the Board itself.

ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, the Board finds that a unit
of
migrant education employees sought by the California
School Employees Association is appropriate.
Pursuant to Educational Employment Relations Act (EERA)1 section 3544(a) and
PERB regulations,2 the Board finds the following unit is appropriate for meeting and
negotiating, provided an employee organization becomes the exclusive representative:
Unit Title:
Shall Include:
Shall Exclude:
Migrant Education
Recruiter, Migrant Services Assistant, Secondary School
Advisor, Support Services Facilitator and Youth Advocate
within the County Office's Migrant Education Program.
All other employees, including management, supervisory and
confidential employees.
Pursuant to PERB Regulation section 33450, within 10 days following issuance
of
this
Notice
of
Decision, the San Joaquin County Office
of
Education shall post on all employee
bulletin boards a copy
of
the Notice
of
Decision attached hereto as an Appendix. The Notice
of
Decision shall remain posted for a minimum
of
15
workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
The Board hereby ORDERS that Case No. SA-RR-1043-E be REMANDED to the
Sacramento Regional Director for proceedings consistent with this decision.
Members Whitehead and Neimajoined in this Decision.
1EERA is codified at Government Code section 3540, et seq.
2PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
2

APPENDIX
CASE:
EMPLOYER:
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
San Joaquin County Office of Education and California School
Employees Association
Case No. SA-RR-1043-E
San Joaquin County Office of Education
2901 Arch-Airport Road
Stockton, CA 	95206
EMPLOYEE ORGANIZATION
PARTY TO PROCEEDING:
FINDINGS:
California School Employees Association
5375 West Lane
Stockton, CA 	95210
The Board finds the following unit is appropriate for meeting and negotiating,
provided an employee organization becomes the exclusive representative:
Unit Title:
Shall Include:
Shall Exclude:
Migrant Education
Recruiter, Migrant Services Assistant, Secondary School
Advisor, Support Services Facilitator and Youth Advocate
within the County Office's Migrant Education Program.
All other employees, including management, supervisory and
confidential employees.
Pursuant to the California Code of Regulations, title 8, section 33450, within 10 days
following issuance of this Notice of Decision, the. San Joaquin County Office of Education
shall post on all employee bulletin boards a copy of the Notice of Decision attached hereto as

an Appendix. The Notice
of
Decision shall remain posted for a minimum
of
15
workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.
Dated:
----------
_
San Joaquin County Office
of
Education
By
___________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR A MINIMUM OF
FIFTEEN (15) WORKDAYS. REASONABLE STEPS SHALL BE TAKEN TO ENSURE
THAT THIS NOTICE IS NOT REDUCED IN SIZE, ALTERED, DEFACED OR COVERED
WITH ANY OTHER MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN JOAQUIN COUNTY OFFICE OF
EDUCATION,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,
Petitioner.
REPRESENTATION
CASE NO. SA-RR-1043-E
PROPOSED DECISION
(10/2/2003)
Appearances: Atkinson, Andelson, Loya, Ruud & Romo, by Paul M. Loya, Attorney, for
San Joaquin County Office
of
Education; Maureen C. Whelan, Staff Attorney, for California
School Employees Association.
Before Les Chisholm, Regional Director.
PROCEDURAL HISTORY
On September 12, 2002, the California School Employees Association (CSEA) filed the
above-referenced request for recognition with the San Joaquin County Office
of
Education
(County Office or Employer) and the Public Employment Relations Board (PERB or Board).
The petition, as initially presented, described the appropriate unit as including all employees
of
the Employer's Migrant Education Program.
By letter dated October 18, 2002, PERB advised the parties
of
its administrative
determination that CSEA had demonstrated proof
of
at least majority support in the petitioned-
for unit, that no interventions had been filed, and that the Employer could lawfully grant
voluntary recognition. Pursuant to PERB Regulation 33190, 1 the County Office filed notice on
November 5, 2002, that the Employer was denying recognition on grounds that the unit sought
PERB's regulations are codified at California Code of Regulations, title 8, section
31001 et seq. 	Copies may be purchased from PERB's Publications Coordinator, 1031 18th
Street, Sacramento, CA 95814-4174, and the text is available at www.perb.ca.gov.

was not an appropriate unit under the Educational Employment Relations Act (EERA)2 and
further requested that PERB investigate and resolve the unit appropriateness dispute in
accordance with EERA section 3544(a) and PERB regulations.3
On December 20, 2002, PERB conducted a settlement conference in this matter. Also
on December 20, 2002, CSEA filed a unit modification petition (SA-UM-716-E) proposing to
add Migrant Education Program employees to the established unit
of
instructional assistants, or
paraprofessionals, that is represented by CSEA and its Chapter 755. By letter dated
January 16, 2003, CSEA requested that its representation petition be held in abeyance while
the unit modification petition was addressed.
Another settlement conference was conducted on February 13, 2003, but no resolution
of
the unit dispute was reached. The matter was then set for hearing, a prehearing conference
was held on March 13, 2003, and a hearing was conducted by the undersigned in Case No.
SA-UM-716-E on March 27 and April 4, 2003.
However, at the request
of
the parties, the undersigned also facilitated discussion
of
settlement options by the parties in a meeting on April 10, 2003. At that meeting, the parties
agreed that the classifications
of
Child Assistant, Job Coach, Job Development/Job Coach,
Migrant Early Childhood Specialist, Migrant Service Tutor, Preschool Tutor and Recreation
Specialist would be added to the existing Instructional Assistants unit. The parties further
agreed that Case No. SA-UM-716-E would be considered closed upon the issuance
of
a Unit
Modification Order by PERB confirming the accretion
of
the named classifications to the unit.
The Order followed on April 11, 2003. The parties also agreed that the formal hearing record
2 EERA is codified at Government Code section 3540 et seq.
3 The Employer had, by earlier correspondence dated September 23 and October 2,
2002, expressed concerns as to the appropriateness of the unit.
2

created in Case No. SA-UM-716-E would be relied upon to decide the issues raised in the
representation case (Case No. SA-RR-1043-E). Finally, the parties stipulated that the issue to
be decided is whether the classifications of Recruiter, Migrant Services Assistant, Secondary
School Advisor, Support Services Facilitator and Youth Advocate constitute an appropriate
bargaining unit for purposes of meeting and negotiating under EERA.
The parties each filed post-hearing and reply briefs, and the matter was submitted for
decision on May 20, 2003.
FINDINGS OF FACT
General
The County Office is organized into five divisions: Administration, Business Services,
Educational Services, Special Education/SELPA, and County Operated Schools and Programs.
The only established bargaining unit of classified employees at the County Office is the CSEA-
represented unit of instructional assistants, including about 120 employees. Those employees,
with the exception of the Migrant Education positions added pursuant to the agreement and
Order in SA-UM-716-E, are under the Special Education/SELPA division.
The Migrant Education Department is under Educational Services and is administered
by a Director II, Sonia Duffoo, and a Director I, Olivia Sosa-Kropp. The County Office has
operated a regional migrant program, for San Joaquin and Contra Costa counties, since 1999.
The program is funded with federal money. The County Office serves as a liaison between the
federal and state Departments of Education, and the various school districts. Nine Project
Manager II's, a Project Manager I and two Coordinator I's supervise the programs and
employees within the Department.
All County Office employees are hired through a process administered by the Human
Resources Department, using a standard application form and interview process. All classified
3

positions have a one-year probationary period, and all are employed subject to the provisions
of
Education Code section 45100 et seq.
Job Duties
The primary role
of
Recruiters
is
to identify and recruit migrant children, and certify
their eligibility, to receive the services
of
the program pursuant to federal guidelines. To do so,
they establish contacts with other agencies that serve the migrant community and with
businesses (such as growers and packing houses) that employ migrant workers. Recruiters
visit work sites and homes to make contact with migrant families and to enroll students.
The Migrant Services Assistants function as a liaison between the schools, migrant
families and the Migrant Education Program. They recruit students for after school, Saturday
and summer program activities; assist with Parent Advisory Committee meetings; encourage
participation by parents; coordinate health and social services; and often provide transportation
for the students and their parents for program services and activities. Employees in this
classification are also often asked to provide translation assistance, and are often asked by
teachers to call parents to communicate the teacher's concerns. They often visit students and
parents in the home.
The Secondary School Advisor (SSA) assists migrant students in grades 7 through 12
toward graduation. Like the Migrant Services Assistants, they act as a liaison between
teachers, counselors, parents and students, and are the primary migrant program contact at the
high school level. The SSA's also make home visits, assist students in utilizing community
and school resources, and recruit students for participation in school and migrant activities.
Their function often emphasizes helping "at-risk" students and out-of-school youth.
The Support Services Facilitator is focused on the facilitation of health and social
services for migrant students. This involves identifying both needs for health-related services
4

and the resources to meet those needs, including resources to help cover costs of such services.
The Facilitator assists with scheduling of appointments, answering questions of parents,
translation and transportation. Employees in this position spend more than 50 percent of their
time in the field, including organizing and working at health fairs and making home visits.
These employees also teach healthy habits to students, such as proper methods for brushing
and flossing teeth.
The Youth Advocate works with and for out-of-school youth who are ages 18 to 22.
They work with educational agencies and the out-of-school youth with a goal of furthering the
youth's education in adult education programs, community colleges, or other appropriate
programs. This overall function involves determining appropriate placements for the youth,
developing a plan with the youth, advocating for the youth and their families, serving as a
liaison with the educational agencies involved, and providing follow-up support for the youth.
Like the other Migrant Education positions, employees in the Youth Advocate classification
make home visits.
Supervision and Work Location
Recruiters and Youth Advocates are supervised by Harold Porras, Project Manager II.
Recruiters work out of the same office as Mr. Porras but Youth Advocates are located at a
separate location.
Four different Program Manager II's supervise both Migrant Services Assistants and
Secondary School Advisors. Two other Project Manager II's supervise either Migrant Services
Assistants or Secondary School Advisors but not both. Employees in both classifications are
often located, in terms of their home base, at a different location than their supervisor.
5

The Support Services Facilitators (often referred to by the parties as Health Facilitators)
are now supervised by Olivia Ortiz, Coordinator I, though they previously worked under the
supervision of different Program Manager II' s on a geographic basis.
Wages and Benefits
Recruiters are paid on Range G ($11.88 to $14.42 per hour) of the salary schedule. The
Migrant Services Assistant and Support Services Facilitator classifications are on Range J
($12.99 to $15.79 per hour). The Secondary School Advisors and Youth Advocates are on
Range K ($13.37 to $16.26 per hour).
All classified employees of the County Office receive benefits as described in the
Education Code, including sick leave, vacation and holidays. All full-time classified
employees of the County Office receive health benefits, and all Migrant Education employees
are full-time.
Hours of Work
All Migrant Education employees are eight hour employees. Employees in the
Recruiter classification work 12 months per year, while other Migrant Education employees
work less than 12 months (198 workdays).
All of the employees at issue frequently work evenings and/or weekends, especially to
assist with conferences and workshops for parents and/or students. The employees do not
receive overtime but instead adjust their schedules.
Qualifications, Education and Training
Each of these five classifications requires that the incumbent be bilingual in English
and Spanish, have a driver's license, and have at least a high school education. The SSA,
Support Service Facilitator and Youth Advocate classifications also require some college
course work.
6

The job descriptions for these classifications also emphasize communication skills and
experience/understanding of the migrant community.
ISSUE
Is a bargaining unit including the classifications of Recruiter, Migrant Services
Assistant, Secondary School Advisor, Support Services Facilitator and Youth Advocate an
appropriate bargaining unit for purposes of meeting and negotiating under EERA?
POSITIONS OF THE PARTIES
CSEA
CSEA first argues that the unit determination standards developed by the Board in
Sweetwater Union High School District (1976) EERB4 Decision No. 4 (Sweetwater) and its
progeny are not controlling in this matter. CSEA contends that, because the Sweetwater units
were established in the context of K-12 school districts, the Migrant Education employees at
issue here, who work for a county office of education, are entitled to placement in a separate
technical unit. CSEA compares the relevant factors to those considered by the Board in Marin
Community College District (1978) PERB Decision No. 55 (Marin), where a separate unit of
technical/quasi-professional employees was approved. In Marin, the Board expressly
distinguished its decision from the line of cases beginning with Sweetwater. CSEA further
relies on the Board's establishment of technical units at the University of California and
California State University under the Higher Education Employer-Employee Relations Act
(HEERA). 5 (See Unit Determination for Employees of the California State University and
Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB).
5 HEERA is codified at Government Code section 3560 et seq.
7

Colleges (1981) PERB Decision No. 173-H and Unit Determination for Technical Employees
of
the University
of
California (1982) PERB Decision No. 241-H.)
CSEA asserts that the Migrant Education employees differ from clerical employees
based on more specialized skills, the degree to which they work independently and
off
site, and
requirements for more education and experience. CSEA further notes that the Migrant
Education employees at issue do not perform routine clerical duties, do not primarily perform
recordkeeping work, and are not required to have secretarial or office experience nor
knowledge
of
business machines.
Likewise, CSEA contends that the Migrant Education employees are distinguished from
instructional assistants, or paraprofessionals. Here, citing San Diego Unified School District
(1977) EERB Decision No.
8,6 CSEA contends that the "primary function"
of
the
paraprofessional
is
to assist a teacher with students in the classroom, and that the Migrant
Education employees differ because they do not work in a classroom with a teacher, do not
teach educational concepts and work under a separate line
of
supervision from instructional
assistants. CSEA also argues that the hours, work schedules, training requirements, and
minimum requirements
of
the instructional assistants differ from those
of
Migrant Education
employees.
Finally, CSEA distinguishes the frequent interaction
of
Migrant Education employees
with students and their families from the instructional relationship that paraprofessionals have
with students and from what it characterizes as the incidental contact that clerical employees
have with students.
6 CSEA also cites the definition of paraprofessional found in Education Code section
45330.
8

Employer
The County Office argues, first, that the proposed unit should not be approved as it
differs from the Board-preferred units established under Sweetwater and cases following that
decision. The County Office further contends that CSEA's case for the proposed unit fails
when the factors
of
community
of
interest, established practices, and the effect
of
the size
of
the proposed unit on the efficient operations
of
the employer are considered. (Pittsburg
Unified School District (1976) EERB Decision No. 3; Monterey Peninsula Community
College District (1978) PERB Decision No. 76.)
The County Office argues that the Migrant Education employees lack the separate and
unique community
of
interest required to find they constitute a more appropriate unit than the
preferred units under Sweetwater. In this context, the Employer contends the employees at
issue lack common supervision, have differing job duties,7 are paid in three different salary
ranges, work out
of
different locations and have little contact or interaction. Also noted in this
argument is that the Recruiters, unlike the other contested classifications, work 12 months per
year.
Regarding factors the five disputed classifications have in common with other
employees, the County Office notes that all its classified employees, except instructional
assistants, are paid monthly and on the same salary schedule; that the salary ranges
of
the
disputed employees are shared with other classifications; and that all classified employees
receive the same health benefits and Education Code benefits (such as sick leave, vacation and
layoff rights). The Employer's argument also cites similarities in qualifications, training and
skills among the disputed classifications and those excluded from the proposed unit.
7 According to the Employer, the only common job duties of the Migrant Education
employees are those involving cle_rical and recordkeeping functions, and use of general office
equipment, that are also common to classifications not included in the proposed unit.
9

While the County Office agrees with CSEA that the Migrant Education employees at
issue lack a community of interest with paraprofessionals, the Employer concludes the
disputed classifications do share a community of interest with clerical employees. This aspect
of the Employer's argument is summarized as follows:
[The disputed classifications] have similar wages, method of
compensation, hours, employment benefits, qualifications,
training and skills. They perform work on and off site and
maintain ongoing communication with other [County Office]
employees. Moreover, their work functions are similar. The
disputed positions and the clericals spend a significant amount of
time on the phone, preparing paperwork, inputting computer data,
contacting other schools, districts, and agencies, dealing directly
with parents and students, screening students for health referrals,
and handling enrollment and qualification issues.
With regard to established practices, the County Office notes that the only current unit
is that including instructional assistants and, now, certain Migrant Education classifications.
The County Office further asserts there is no evidence of any other employee group having a
history of meeting with the employer about employment issues.
Finally, concerning efficient operations of the employer, the County Office contends
that the proposed unit, including only 56 of its 772 employees, would constitute the kind of
fragmentation and threat of proliferation of units disfavored under EERA and PERB decisions.
(Shasta Union High School District (1977) EERB Decision No. 34.)
DISCUSSION
The parties stipulated, and the record supports finding, that the County Office is an
employer within the meaning of the EERA, and that CSEA is an employee organization within
the meaning of the EERA. The evidence also supports finding, and no party disputes, that the
employees at issue are employees within the meaning of the EERA.
Unit Determination Criteria

In each unit determination case, the Board is bound to follow the criteria set forth in
EERA at section 3545(a):
In each case where the appropriateness of the unit is an issue, the
board shall decide the question on the basis of the community of
interest between and among the employees and their established
practices including, among other things, the extent to which such
employees belong to the same employee organization, and the
effect of the size of the unit on the efficient operation of the
school district.
In Sweetwater, the Board referenced EERA's legislative intent8 in holding that:
... Implicit in this statement of legislative intention is the notion
that the employees will have the ability to choose an organization
which is an effective representative. An effective representative
will generally be one largely determined by the community of
interest and established practices of the employees rather than the
efficient operation of the school district.
However, in the same decision, the Board also noted that
... It is a legitimate concern that excessive fragmentation of
negotiating units may burden an employer with multiple
negotiating processes and postures and with a variety of
negotiated agreements difficult to administer because their
provisions differ. ...
The Board ruled early in its history that it must in each case determine the
"appropriateness" of a unit without being limited to a choice between "an" or the "most"
appropriate unit, and must in each case weigh and balance the statutory criteria in order to
The relevant portion of section 3540 quoted by the Board reads as follows:
It is the purpose of this chapter to promote the improvement of
personnel management and employer-employee relations within
the public school systems in the State of California by providing
a uniform basis for recognizing the right of public school
employees to join organizations of their own choice, to be
represented by the organizations in their professional and
employment relationships with public school employers, to select
one employee organization as the exclusive representative of the
employees in an appropriate unit, ...
11

achieve consistency of application and the general objectives of EERA. (Antioch Unified
School District (1977) EERB Decision No. 37 (Antioch).)
In Sweetwater, the Board announced its preference for three units of classified
employees: instructional aides; office-technical and business services; and operations and
support services. The significance of the Sweetwater "preferred" units was further explained in
Compton Unified School District (1979) PERB Decision No. 109 (Compton) where the Board
held that
a variant unit will not be awarded unless it is more appropriate
than the Sweetwater unit based on a separate and distinct
community of interest among employees in the variant unit or
other section 3545(a) criteria. 	[Emphasis added; fn. omitted.]
The Sweetwater units were held in Antioch to
reflect a proper balance between the harmful effects on an
employer of excessive unit fragmentation and the harmful effects
on employees and the organizations attempting to represent them
of an insufficiently divided negotiating unit or units ....
In Los Angeles Unified School District (1998) PERB Decision No. 1267, the Board's
discussion includes reference to evidence of legislative intent, in the enactment of EERA, that
the Board should "find the largest reasonable unit to be the appropriate one for purposes of
collective bargaining." (Quoting the California Assembly Advisory Council, Final Report,
p. 85 (March 15, 1973); also known as the "Aaron Report.")
While no petition is on file seeking a Sweetwater unit, and thus no such unit can be
ordered in this decision, it is still necessary for a party favoring establishment of a unit to show
that it has a community of interest separate and distinct from other employees. (Compton; see
also Lodi Unified School District (2001) PERB Decision No. 1429.) In Sacramento City
Unified School District (1977) EERB Decision No. 30, the Board held that:
... A separate unit is not warranted merely because a group of
employees share a community of interest among themselves,
12

when that homogeneous group forms only a part of a larger
essentially homogeneous group sharing similar conditions of
employment and job functions ....
In Compton, the Board rejected a separate unit for skilled crafts employees, and included them
with the operations and support services unit, despite a petitioner's demonstration of 84 percent
membership among the skilled crafts employees.
In later denying a unit of hourly bus drivers, where other bus drivers were already
included in the operations and support services unit, the Board noted that:
Analysis
... Every classification possesses a community of interest among
its members. Janitors, undisputedly, have more in common with
other janitors than they do with gardeners, but we have yet to find
a separate unit of only janitors appropriate, absent unusual
circumstances. . . . [San Diego Unified School District (1981)
PERB Decision No. 170.]
CSEA relies in part on the contention that the preferred units established for school
districts under Sweetwater are not applicable to a county office of education. In this vein,
CSEA notes that the Board expressly distinguished the context of its decision in Marin, a
community college district, from the line of decisions involving "regular" school districts.
However, the Board has itself not made such a distinction applicable to unit determination for
a county office of education, even where opportunities to do so have been presented. (See
Office of the Santa Clara County Superintendent of Schools (1978) PERB Decision No. 59;
Santa Clara County Office of Education (1990) PERB Decision No. 839.)
Here, where the proposed unit includes many employees who work out of school
district offices, and work extensively with employees of "regular" school districts, CSEA' s
argument that Marin should be relied upon as more persuasive precedent than Sweetwater and
its progeny is not convincing. Even less support is found for relying on cases decided in the
context of large, statewide institutions of higher education under a different act.
13

The Board, describing the essential characteristics
of
its preferred classified units, has
characterized the instructional aides' primary duty as "directly assisting in the educational
development
of
students; has summarized the primary work function
of
operations-support
services employees as providing
"a
proper physical environment and support services for
students"; and has distinguished office-technical and business services employees as those who
"generally perform only clerical and record keeping work." (Sacramento City Unified School
District, supra, EERB Decision No. 30.)
CSEA and the Employer both argue that the Migrant Education positions at issue are
distinguished from employees in the instructional assistants unit, in part, because they do not
work under the supervision
of
a classroom teacher and do not assist in the delivery
of
classroom instruction. This argument is well taken and convincing.
The harder question to answer is whether the employees at issue share a community
of
interest with clerical employees. The Employer relies especially on the evidence concerning
an Administrative Assistant at the Venture Academy Charter School and an Enrollment Clerk
in Alternative Education. These employees, notes the Employer, handle student enrollments,
interact with students and parents, review immunization and other student health records, work
at multiple sites, and interact with other agencies. The Employer further argues that the
disputed positions and the clerical employees "spend a significant amount
of
time on the
phone, preparing paperwork, inputting computer data, contacting other schools, districts, and
agencies, dealing directly with parents and students, screening students for health referrals, and
handling enrollment and qualification issues."
However, CSEA's arguments emphasizing the distinctions between clerical employees
and the Migrant Education employees is more persuasive. The Migrant Education employees,
while they do keep records and use office equipment, are not employed primarily to maintain
14

records and are not required to have the kind
of
specialized knowledge
of
computers and other
office machines that clerical employees must have. The nature
of
their involvement with
students and parents is also different than that
of
clerical employees. While their involvement
is not like that
of
the instructional assistant, the Migrant Education employees, especially the
SSA's
and Youth Advocates, are much more directly involved in the educational development
of
students than are clerical employees.
The nature
of
their work, often involving home and work site visits, is also quite
different than that
of
clerical employees. Further, unlike clerical employees, most are required
to have at least some college level course work, and all are required to be fluent in Spanish.
The County Office argues that there is little evidence
of
direct interaction among the
petitioned-for employees. While this is not entirely true, more important is the extent to which
the record demonstrates the functional interdependence and interaction
of
their duties.
The Employer's argument that similarities in wages and benefits defeat the proposed
unit is also not convincing. Neither differences nor similarities in areas such as wages and
fringe benefits that are subject to the duty to bargain are controlling in a case such as this.
(Santa Clara County Office
of
Education, supra, PERB Decision No. 839.)
Finally, though the Employer argues that approval
of
the proposed unit would harm its
efficiency
of
operation and lead to an unwarranted proliferation
of
units, the record does not
provide support for such a finding.
In sum, the evidence supports a finding that the unit proposed by CSEA has a
community
of
interest that is "separate and distinct" from other existing or potential bargaining
units (Compton), and that it is an appropriate unit in keeping with the objectives
of
the EERA
(Antioch). The community of interest among the employees in these five classifications is
based on their job duties that involve outreach to the migrant community, the requirement they
15

be bilingual in English and Spanish, their common lines of supervision under the directors of
the department, and their qualifications, education and experience.
PROPOSED CONCLUSION AND ORDER
After an examination of the foregoing findings of fact and conclusions of law, and the
entire record in this case, it is hereby ORDERED that a unit including the classifications of
Recruiter, Migrant Services Assistant, Secondary School Advisor, Support Services Facilitator
and Youth Advocate employed by the San Joaquin County Office of Education (County Office
or Employer) in its Migrant Education program is an appropriate unit for purposes of meeting
and negotiating under the Educational Employment Relations Act, provided an employee
organization becomes the exclusive representative. The unit shall exclude all other employees,
including management, supervisory and confidential employees.
Pursuant to California Code of Regulations, title 8, sections 33470, 33480 and 33490,
the Public Employment Relations Board (PERB or Board) shall conduct an election to
determine whether the employees in the above unit wish to be represented by the California
School Employees Association, unless the Employer chooses to grant voluntary recognition.9
A Board agent will contact the parties upon issuance of a final decision in this matter to
discuss the further processing of this case. Should this proposed decision become final, the
parties shall be served with a copy of the decision and a notice of decision which must be
posted by the Employer pursuant to PERB Regulation 33450.
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
9The County Office may forego an election since CSEA evidenced majority support
and no timely intervention was filed.
16

Board itself within 20 days
of
service
of
this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8 , sec. 32300.)
A document is considered "filed" when actually received before the close
of
business
(5
:00 p.m.) on the last day set for filing or when mailed by certified or Express United States
mail, as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit.
8,
secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close
of
business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements
of
California Code
of
Regulations, title
8,
section
32135(d), provided the filing party also places the original, together with the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8 , sec. 32135(b ), (c) and
(d); see also Cal. Code Regs., tit.
8,
secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8 , secs. 32300, 32305,
32140, and 32135(c).)
Les Chisholm
Regional Director
17