Castaic Union School District * * * OVERRULED by amendment to EERA section 3540.1, subdivision (e), Stats. 2011, Ch. 674, and Center Unified School District (2014) PERB Decision No. 2379 (PERB A384E)

OVERRULED by amendment to EERA section 3540.1, subdivision (e), Stats.
2011, Ch. 674, and Center Unified School District (2014) PERB Decision No. 2379
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CASTAIC UNION SCHOOL DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 401,
Exclusive Representative.
Case No. LA-UM-799-E
Administrative Appeal
PERB Order No. Ad-384
August 9, 2010
Appearance: Law Offices of Margaret A. Chidester & Associates by Margaret A. Chidester,
Attorney, for Castaic Union School District.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the Castaic Union School District (District) of a Board
agent's administrative determination on a petition for unit modification filed by the California
School Employees Association & its Chapter 401 (CSEA). The petition sought to add part-
time playground monitor positions, also known as noon-duty aides, to the wall-to-wall
classified bargaining unit represented by CSEA. The Board agent found a community of
interest between the noon-duty aides and the classifications in the classified bargaining unit
and ordered the unit modified to include noon-duty aides.
The Board has reviewed the administrative determination and the record in light of the
District's appeal and the relevant law. Based on this review, the Board dismisses CSEA's
petition for the reasons discussed below. 1
1 The District's request for oral argument is denied.

FACTUAL AND PROCEDURAL BACKGROUND
The District employs 22 noon-duty aides, none
of
whom holds another classified position
within the District. CSEA filed a unit modification petition seeking to add these noon-duty aides
to the District's wall-to-wall classified bargaining unit. CSEA asserted the unit modification was
appropriate based on a "[c]ommunity
of
interest between and among the employees and their
established practices." The petition provided no facts regarding the job duties or working
conditions
of
noon-duty aides.
The District opposed the petition, asserting it was not appropriate to add noon-duty
aides to the unit. The District pointed out that the Education Code precludes noon-duty aides
from classified employment status. For this reason, the District contends, noon-duty aides are
not covered by the Educational Employment Relations Act (EERA or Act)2 and therefore
CSEA lacks standing to represent noon-duty aides. The District also argued that noon-duty
aides lack a community
of
interest with classified employees because noon-duty aides serve at
the pleasure
of
the District, do not require any particular education or experience, are not
entitled to reemployment rights or notice
of
disciplinary action, work fewer than four hours per
day, and are not subject to performance evaluations or hiring tests.
The Board agent denied the District's request for a formal hearing on CSEA's petition
and issued an order to show cause why the petition should not be granted. Following the
District's response, in which it laid out the same arguments as in its opposition to the petition,
the Board agent issued an administrative determination ordering noon-duty aides added to the
District's classified bargaining unit.
2 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2

On appeal, the District argues that the Board's holding in Pittsburg Unified School
District (1976) EERB3 Decision No. 3 that employees in part-time playground positions have
representational rights under EERA should be overturned because PERB case law and
legislative enactments since 1976 establish that the Legislature did not intend to grant such
rights to noon-duty aides. The District also reiterates its argument that noon-duty aides do not
share a community
of
interest with the District's classified employees.
DISCUSSION
1.
	Status
of
Part-Time Playground Positions Under EERA
The District has argued throughout the proceedings in this matter that noon-duty aides
have no representation rights under BERA because they are excluded by statute from the
classified service. The Board agent rejected this argument based on Pittsburg Unified School
District, supra, and Fontana Unified School District (2004) PERB Decision No. 1623, in
which the Board placed noon-duty aides in a classified bargaining unit. Based on our review
of
relevant statutory provisions, PERB precedent and the legislative history
of
bills addressing
part-time playground positions, we find merit in the District's argument.
a.
	Statutory Provisions
Education Code section 45103, subdivision (6)(4) provides:
Part-time playground positions shall not be a part
of
the classified
service, where the employee is not otherwise employed in a
classified position. Part-time playground positions shall be
considered a part
of
the classified service when.the employee in
the position also works in the same school district in a classified
position.
3 Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board or EERB.
3

It is undisputed that the District's noon-duty aides hold "part-time playground
positions" and that no aide is simultaJ?.eously employed in a classified position with the
District. Thus, the District's noon-duty aides are excluded from the classified service.
EERA section 3540.1, subdivision
G)
states:
'Public school employee' or 'employee' means any person
employed by any public school employer except persons elected
by popular vote, persons appointed by the Governor
of
this state,
management employees, and confidential employees.
In Pittsburg Unified School District, supra, the majority decision addressed the
interplay
of
this definition with the above Education Code provision:
Unlike the Employer, we do not view Section 13581
of
the
Education Code
41
/ 	which specifically excludes 'Noon Time
Playground Supervisor' from the classified service, as precluding
employees so designated from the exercise
of
rights guaranteed in
this Act. In our view, this section
of
the Education Code must be
considered in conjunction with the definition
of
employee
contained in the Act. Employee is defined in the Act as '
...
any
person employed by any public school employer except persons
elected by popular vote[,] persons appointed by the Governor
of
this state, management employees, and confidential employees.'
This definition is not limited in any way to certificated employees
or employees in the classified service.
Member Gonzales dissented from this conclusion on several grounds. Most
persuasively in our view, the dissent pointed out that EERA provides no guidance to PERB
regarding bargaining unit placement
of
employees who are neither certificated nor classified.
A review
of
the relevant EERA provisions leads us to conclude that only certificated or
classified employees have representation rights under EERA.
EERA section 3540.1, subdivision (e) states:
'Exclusive representative' means the employee organization
recognized or certified as the exclusive negotiating representative
4 Section 13581 was renumbered to section 45103 effective April 30, 1977.
4

of
certificated or classified employees in an appropriate unit
of
a
public school employer.
(Emphasis added.)
We interpret the plain language
of
the statute to mean that an exclusive representative
may only represent a bargaining unit
of
certificated or classified employees and, therefore,
cannot represent employees who do not fall into one
of
those two categories. The statute also
indicates that an appropriate unit is one that contains only certificated or classified employees.
Thus, it appears that the definition
of
"exclusive representative" limits the definition
of
"public
school employee" to certificated or classified employees.
Support for this interpretation is found in EERA section 3545, which sets forth the
criteria for determining an appropriate bargaining unit. The section refers to bargaining units
of
classified, certificated and supervisory employees (who may be either certificated or
classified); it provides no guidance as to unit placement
of
employees who are neither
certificated nor classified.
The Act's silence regarding the unit placement
of
employees who are neither
certificated nor classified leads to the conclusion that the Legislature did not intend such
employees to have representation rights under EERA. Accordingly, the District's noon-duty
aides may not be placed in the classified employee bargaining unit because they do not fall
within EERA's definition
of
a "public school employee."
b. 	PERB Precedent
As noted, in both Pittsburg Unified School District, supra, and Fontana Unified School
District, supra, the Board ordered that noon-duty aides be included in a classified bargaining
unit. However, the Board has treated short-term employees, who are also excluded from the
5

classified service by Education Code section 45103, subdivision (b), differently. 5 In
Healdsburg Union High School District and Healdsburg Union School District/San Mateo City
School District (1984) PERB Decision No. 375, the classified employees' union sought to
bargain terms and conditions
of
employme~t for short-term employees. Addressing the
union's
bargaining proposals for these employees, the Board reasoned as follows:
Although this proposal relates to wages and hours, the employees
for whom CSEA seeks to negotiate are outside the bargaining unit
which it represents. CSEA is certified as the exclusive
representative
of
the classified employees. Section 45103
of
the
Education Code expressly excludes 'short-term' employees from
the classified service. Hence, these proposals do not concern
positions over which CSEA has authority to negotiate. The Board,
therefore, finds that proposals 17.1.1 through 17 .1. 5 are
nonnegotiable.
(Fn. omitted.)
5 Education Code section 45103, subdivision (b) states in full:
(1) 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.
(2) Apprentices and professional experts employed on a
temporary basis for a specific project, regardless
of
length
of
employment, shall not be a part
of
the classified service.
(3) Full-time students employed part time, and part-time students
employed part time in any college workstudy program, or in a
work experience education program conducted by a community
college district pursuant to Article 7 ( commencing with Section
51760)
of
Chapter 5
of
Part 28 and that is financed by state or
federal funds, shall not be a part
of
the classified service.
(4) Part-time playground positions shall not be a part
of
the
classified service, where the employee is not otherwise employed
in a classified position. Part-time playground positions shall be
considered a part
of
the classified service when the employee in
the position also works in the same school district in a classified
position.
6

This paragraph is susceptible to two interpretations: (1) CSEA had no authority to
bargain on behalf
of
short-term employees because they were not in the classified bargaining
unit; or (2) CSEA had no authority to bargain on behalf
of
short-term employees because they
were statutorily excluded from the classified service. We find the latter interpretation more
persuasive in light
of
the Board's specific mention
of
Education Code section 45103. Had the
Board based its conclusion solely on the fact that short-term employees were not in the
CSEA-represented bargaining unit, there would have been no need to reference the Education
Code provision. That the Board did so indicates that its conclusion was based on the statutory
exclusion
of
short-term employees from the classified service.
Given that both groups are excluded from the classified service, we see no reason why
noon-duty aides should have representation rights under EERA when short-term employees do
not. Therefore, following Healdsburg Union High School District and Healdsburg Union
School District/San Mateo City School District, supra, we conclude that noon-duty aides lack
representation rights under EERA because
of
their statutory exclusion from the classified
service.
C.
	Legislative History
Our view that noon-duty aides are not "public school employees" granted
representation rights under EERA is further supported by the legislative history
of
a series
of
bills addressing the Education Code's exclusion
of
"part-time playground positions" from the
classified service.
Prior to January 1, 2003, all part-time playground positions were excluded from the
classified service. As a result of this blanket exclusion, classified employees who spent part of
their workday in part-time playground positions were denied classified status for their
playground monitor time. Beginning in 1987, bills were introduced to grant classified
7

employees classified status for this time. The first four
of
these bills, Senate Bill (SB) 1270
(1987), Assembly Bill (AB) 2873 (1994), AB 2409 (1998), and AB 1490 (1999) were vetoed
by the Governor. In 2000, AB 1780 proposed to remove the exclusion entirely and make all
part-time playground positions classified employees. Governor Gray Davis vetoed this bill,
stating in relevant part:
While I appreciate this bill's effort to provide better benefits for
part-time playground monitors, this bill would mandate
substantial increased costs to school districts. I am concerned
that requiring school districts to designate all part-time
playground monitors as classified employees would usurp the
ability
of
local school districts to set personnel policies that best
meet their individual needs.
(Governor's veto message to Assem. on Assem. Bill No. 1780 (Sept. 7, 2000) Recess J. No.
15
(1999-2000 Reg. Sess.) p. 9134.)
AB 2849 (2002) amended Education Code section 45103, subdivision (b)(4) to its
current form, which excludes from the classified service only those in part-time playground
positions who hold no classified position within the same district. Section 1
of
the bill stated:
It is the intent
of
the Legislature that, by granting classified
service status to employees who serve in part-time playground
positions and who also work in the same school district in a
classified position, parents and guardians who volunteer in
playground positions are not discouraged from volunteering.
(Stats. 2002, ch. 1100, § 1.)
AB 2849 thus extended the classified status
of
classified employees who perform some
playground duty but also continued to encourage community members to volunteer for part-
time playground positions. In light
of
Governor Davis' veto message to AB 1780, we
conclude the Legislature intended for school districts to retain their existing flexibility
regarding staffing and compensation
of
part-time playground positions filled by volunteers.
Interpreting EERA to grant representation rights to volunteer part-time playground positions
would eliminate that flexibility by mandating negotiations over such issues as salary and
8

benefits,
job
protections, and the impact
of
staffing changes. We find no compelling reason to
undermine the Legislature's intent and potentially impose•significant new expenditures
on
school districts.
In sum, we hereby overrule Pittsburg Unified School District, supra, and Fontana
Unified School District, supra, and hold that persons in "part-time playground positions" who
do not hold a classified position in the same school district are not "public school employees"
under EERA and therefore have no representation rights under the Act. Accordingly, we
dismiss
CSEA's
petition to add the District's noon-duty aides to its classified bargaining unit.
We recognize that classified bargaining units may currently exist which include part-
time playground positions. Because
of
the potential disruption to stable employer-employee
relations that would result from application
of
this decision to such units, PERB will only
apply this decision prospectively. (Palo Alto Unified School District, et
al.
(1979) PERB
Decision No. 84; Peralta Community College District (1978) PERB Decision No. 77.)
Consequently, this decision does not affect existing units that include part-time playground
positions.
2. 	Community
of
Interest
Even
if
the District's noon-duty aides were entitled to representation under EERA, we
would nonetheless dismiss CSEA's petition because the record fails to establish a community
of
interest between the noon-duty aides and employees in the District's classified bargaining
unit.
A finding
of
community
of
interest is based on consideration
of
factors such as the
extent employees have similar qualifications, training and skills; job duties, and the extent they
are related to or integrated with the functions
of
other employees; salary and benefits and other
compensation relationships; hours of work; supervision; interaction with other employees; and
9

the existence
of
purposes common to other employees. No single factor is controlling.
(Los Angeles Unified School District (1998) PERB Decision No. 1267; San Francisco
Community College District (1994) PERB Decision No. 1068; Marin Community College
District (1978) PERB Decision No. 55; Los Angeles Unified School District (1976) EERB
Decision No. 5.)
In its petition, CSEA states that inclusion
of
the noon-duty aides in the classified
bargaining unit is proper based on a "[ c]ommunity
of
interest between and among the
employees and their established practices." In contrast, the District states that differences in
supervision, hiring practices, hours
of
work, salary, benefits, education, experience,
reemployment rights and disciplinary action between noon-duty aides and other positions in
the classified bargaining unit demonstrate that noon-duty aides do not have a community
of
interest with employees in the classified unit. There are no other facts included in the record.
There is no evidence
of
job duties, salary schedules, supervision, hiring or disciplinary
procedures regarding noon-duty aides and classified employees. The Board agent's
determination
of
community
of
interest based solely on findings in prior decisions is
insufficient to support a community
of
interest in the present case. Therefore, we find no
evidence to support a community
of
interest between the noon-duty aides that are the subject
of
this petition and the District's classified employees represented by CSEA. This lack
of
evidence provides an alternative ground for dismissal
of
CSEA's petition for unit modification.
ORDER
The unit modification petition in Case No. LA-UM-799-E is hereby DISMISSED.
Member McKeag joined in this Decision.
Member Wesley's concurrence and dissent begins on page 11.
10

WESLEY, Member, concurring and dissenting: I concur with the majority's
determination that the lack
of
evidence
of
community
of
interest between the noon-duty aides
and the Castaic Union School District's classified employees represented by the California
School Employees Association & its Chapter 401, provides grounds for dismissal
of
the
petition. I respectfully dissent, however, from the majority's ruling that the non-classified
status
of
noon-duty aides 1 renders the position exempt from the Educational Employment
Relations Act (EERA or Act) and precludes noon-duty aides from being included in a
bargaining unit with classified positions where a sufficient community
of
interest otherwise
exists.
As noted by the majority, Education Code section 45103(a) requires school districts to
classify most non-certificated employees and positions. These employees and positions are
deemed the classified service under the Education Code. The establishment
of
the classified
service under Education Code section 45103 was intended to impose an obligation to classified
1 The Education Code refers to noon-duty aides as part-time playground positions.
Education Code section 45103 states, in part:
(a) The governing board
of
any school district shall employ
persons for positions not requiring certification qualifications. The
governing board shall, except where Article 6 (commencing with
Section 45240) or Section 45318 applies, classify all
of
these
employees and positions. The employees and positions shall be
known as the classified service.
(b)(4) Part-time playground positions shall not be a part
of
the
classified service, where the employee is not otherwise employed
in a classified position. Part-time playground positions shall be
considered a part of the classified service when the employee in
the position also works in the same school district in a classified
position.
11

employees that cannot be avoided by use
of
contracts. (California School Employees Assn.
v.
Willits Unified School Dist. (1966) 243 Cal.App.2d 776.) Consequently, classified
employees enjoy a number
of
benefits guaranteed by statute.2 (Seymour
v.
Christiansen
(1991) 235 Cal.App.3d 1168.)
Education Code section 45103(b)(4) excludes noon-duty aides from these statutory
benefits under the Education Code, unless the employee is simultaneously employed in a
classified position. However, the Board in Pittsburg Unified School District (1976) EERB
Decision No. 3 and Fontana Unifie·d School District (2004) PERB Decision No. 1623, found
that the Education Code does not operate to withhold the rights
of
all non-classified public
school employees under EERA. Moreover, EERA section 3540.lG) defines a public school
employee as:
[A]ny person employed by any public school employer except
persons elected by popular vote, persons appointed by the
Governor
of
this state, management employees, and confidential
employees.
(Emphasis added.)
While the Education Code and the cited legislative history
of
Assembly Bill 2849,
operate to limit the burden on school districts by limiting the guarantee
of
certain statutory
benefits to noon-duty aides, neither suggests that this was intended to overturn the holdings in
Pittsburg Unified School District, supra, and Fontana Unified School District, supra, or
otherwise restrict non-classified employees rights under EERA.
2 For specific benefits guaranteed to classified employees by statute see, for example,
Education Code sections 45203 (paid holidays), 45197 (paid vacation), 45191 (sick leave),
45128 (increased pay for overtime) and 45113 Gob security).
12

The definition of"exclusive representative" under EERA section 3540.l(e)3 does not
serve to negate representation rights to all public school employees defined under the Act
unless those employees are certificated or classified.
Consequently, I would find that EERA and the Education Code can be harmonized to
grant noon-duty aides collective bargaining rights under EERA. Therefore, I conclude that
noon-duty aides may properly be included in units with classified service employees where a
sufficient community
of
interest otherwise exists.
3 EERA section 3540.l(e) defines "exclusive representative" as:
[T]he employee organization recognized or certified as the
exclusive negotiating representative of certificated or classified
employees in an appropriate unit of a public school employer.
13