Fairfield-Suisun Unified School District (PERB A452E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
FAIRFIELD-SUISUN UNIFIED SCHOOL
DISTRICT,
Employer,
and
FAIRFIELD-SUISUN ASSOCIATION OF
SPEECH-LANGUAGE PATHOLOGISTS,
Petitioner,
and
FAIRFIELD-SUISUN UNIFIED TEACHERS
ASSOCIATION,
Exclusive Representative.
Case No. SF-SV-129-E
PERB Order No. Ad-452
August 16, 2017
Appearances: McLeod Larsen for Fairfield-Suisun Association of Speech-Language
Pathologists; California Teachers Association by Laurie Burgess, Staff Counsel, for Fairfield-
Suisun Unified Teachers Association.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal from an administrative determination (attached) by PERB’s Office of the
General Counsel denying a severance petition filed by the Fairfield-Suisun Association of
Speech-Language Pathologists (Association). The petition sought to sever speech-language
pathologists employed by the Fairfield-Suisun Unified School District (District) from the

________________________
District’s other certificated employees, the vast majority of whom are currently represented by
the Fairfield-Suisun Unified Teachers Association (Teachers Association).1
The administrative determination noted that, in applying the criteria of the Educational
Employment Relations Act (EERA) section 3545, subdivision (a),2 the Board has consistently
held that pupil services personnel, such as counselors, psychologists, school nurses, social
workers, librarians, and audio visual personnel, are appropriately included in a bargaining unit
with other certificated employees of the same public school employer. (Grossmont Union
High School District (1977) EERB3 Decision No. 11; Stanislaus County Office of Education
(1993) PERB Decision No. 1022 (Stanislaus), adopting proposed decision at p. 18 [appropriate
certificated unit including “a variety of instructional personnel working in different settings
ranging from classrooms to hospital rooms, and [] non-instructional personnel [including]
audiologists and nurses”].) The administrative determination also noted that, under long-
standing Board law, it is not enough, for approval of a separate unit, to show that a group
1 School psychologist is the only classification of certificated personnel employed by
the District not included in the general certificated unit represented by the Teachers
Association, and, as noted in the administrative determination, this unit placement decision,
because it was not approved by PERB, is therefore afforded little, if any, weight in considering
the present severance petition. (Pleasanton Joint School District, Amador Valley Joint Union
High School District (1981) PERB Decision No. 169, p. 6, fn. 8.)
2 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code. Section 3545(a) states:
(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.
3 Until January 1, 1978, PERB was known as the Educational Employment Relations
Board or EERB.
2

possesses a community of interest, as one particular classification inevitably will; rather, it is
also necessary to establish that the community of interest of the proposed unit is “separate and
distinct” from the larger group from which it seeks severance. (San Diego Unified School
District (1981) PERB Decision No. 170, p. 5; Lodi Unified School District (2001) PERB
Decision No. 1429, adopting proposed decision at p. 17; Oakland Unified School District
(2001) PERB Decision No. 1464, adopting proposed decision at p. 17.) Applying these
principles, the Office of the General Counsel determined that the Association had not met its
burden of showing that the District’s speech-language pathologists have a community of
interest that is separate and distinct from that shared with teachers and other certificated
employees, including other pupil service personnel.
The main thrust of the appeal is that the administrative determination neglected to
consider the Association’s contention that speech-language pathologists share a community of
interest with other service providers who help rehabilitate students, including occupational
therapists and behavior analysts and mental health clinicians. According to the Association,
these classified titles “have nearly the same responsibilities as speech-language pathologists
but cannot be grouped together in bargaining due to the outdated separation of classified and
certificated personnel that has been the standard of PERB doctrine for decades.” The appeal
reiterates this point by referencing “mountainous changes in public policy in Special Education
and in the practice of Speech-Language Pathology” which have so altered the educational
landscape of the 21st Century, that the community of rehabilitative service providers in public
education now “transcends the traditional PERB separation of classified and certificated
personnel.” However, according to the appeal, “PERB’s regulations separating classified and
certificated personnel prevent SLPs from forming or joining in a bargaining unit with [other,
3

________________________
similarly-situated] individuals” are outdated and should be controlling for this appeal. We are
not persuaded.
Outdated or not, the distinction between certificated and classified personnel in public
education is not simply a standard imposed by PERB Regulations and decisional law, but a
statutory distinction set forth in EERA4 and the Education Code. Education Code
section 44006 defines a “certificated person” as one who holds “one or more documents such as
a certificate, a credential, or a life diploma, which singly or in combination license the holder to
engage in the school service designated in the document or documents,” and other provisions of
the Education Code expressly contemplate speech-language pathologists as credentialed, i.e.,
certificated personnel. (Ed. Code, §§ 44265.3, 44268, 45104.5)
As noted in the administrative determination, the community of interest among
certificated employees is also implicit in the statutory guidelines used for evaluating all
certificated personnel, as set forth in the Stull Act, Education Code Article 5.5, sections 13485
through 13490, which are not used for evaluating classified personnel. The fact that speech-
language pathologists provide a rehabilitative service to only one segment of the student
population, as opposed to educational services to the general student population, would
appear to be of no significance to the legislative scheme, as the Education Code expressly
provides that a “position requiring certification qualifications” includes “every type of service
for which certification qualifications are established by or pursuant to” the Education Code.
(Ed. Code, § 44001, emphasis added; see also Ed. Code, § 44065 [expressly contemplating a
4 EERA section 3545, subdivision (b)(3), provides: “Classified employees and
certificated employees shall not be included in the same negotiating unit.”
5 Education Code 45104 provides, in pertinent part: “Every position not defined by this
code as a position requiring certification ... shall be part of the classified service.”
4

________________________
“teaching or service credential”]; Fremont Unified School District (2014) PERB Decision
No. 2397, pp. 18-19; and Stanislaus, supra, PERB Decision No. 1022, proposed decision at
pp. 12-13, 18-19.)
PERB is not a court of general jurisdiction, but an administrative agency whose
jurisdiction is limited to administering EERA and the other California public-sector labor
relations statutes. (EERA, § 3541.3.) Although we may interpret the provisions of the
Education Code and other external law where necessary to decide matters within our
jurisdiction (Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 583), we have
no authority to “declare a statute unenforceable, or to refuse to enforce a statute on the basis that
federal law or federal regulations prohibit the enforcement of such statute unless an appellate
court has made a determination that the enforcement of such statute is prohibited by federal law
or federal regulations.” (Cal. Const., art. III, § 3.5, subd. (c); Connerly v. State Personnel Bd.
(2001) 92 Cal.App.4th 16, 31; Cooper v. Swoap (1974) 11 Cal.3d 856, 864; San Diego
Community College District (2003) PERB Decision No. 1467a, pp. 4-5; Santa Monica
Community College District (1979) PERB Decision No. 103, pp. 12-13.) The appeal cites no
appellate authority holding that the Individuals with Disabilities in Education Act (IDEA)6 or
other federal law is incompatible with the separation of certificated and classified personnel for
collective bargaining purposes mandated by California law. Consequently, even if we agreed
with the Association that federal and state law governing special education has changed
sufficiently to render the distinction between certificated and classified personnel in California
public education outdated or impractical, we would be without authority to alter or ignore that
distinction.
6 IDEA is codified at 20 U.S.C. § 1400 et seq.
5

For the reasons set forth in the administrative determination, we agree with the Office
of the General Counsel that the Association has not met their burden of showing that the
District’s speech-language pathologists have a community of interest that is separate and
distinct from that shared with teachers and other certificated employees. The Board hereby
affirms the administrative determination and adopts it as the decision of the Board itself.
ORDER
The severance petition in Case No. SF-SV-129-E is hereby DENIED.
Chair Gregersen and Member Winslow joined in this Decision.
6

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-1025
Fax: (510) 622-1027
March 21, 2017
McLeod Larsen
Fairfield-Suisun Association
of
Speech-Language Pathologists
Laurie Burgess, Staff Attorney
California Teachers Association
1705 Murchison Drive
Burlingame, CA 94010
Matthew P. Juhl-Darlington, Attorney
Dannis Woliver Kelley
123 West 6th Street, Suite 120
Chico, CA 95928
Re: 	Fairfield-Suisun Unified School District
Case No. SF-SV-129-E
ADMINISTRATIVE DETERMINATION - DISMISSAL OF PETITION
EDMUND G. BROWN JR., Governor
Dear Interested Parties:
The above-referenced severance petition (Petition) was filed with the Public Employment
Relations Board (PERB or Board) on April 7, 2016. The Fairfield-Suisun Association
of
Speech-Language Pathologists (Petitioner) petitions for a bargaining unit
of
Speech-Language
Pathologists (SLPs) employed by the Fairfield-Suisun Unified School District (District). SLPs
are currently within the certificated bargaining unit represented by the Fairfield-Suisun Unified
Teachers Association (FSUTA). 	·
On May 11, 2016, this office determined that the Petition was accompanied by sufficient proof
of
support pursuant to PERB Regulation 33050(b ). 1 However, because the employees covered
by the Petition were already represented by FSUTA, and because FSUTA did not join in the
Petition, the District was not permitted to grant voluntary recognition. The District did not file
a decision to grant or deny recognition.
1 Educational Employment Relations Act (EERA) is codified at Government Code
section 3540 et seq. PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
EDMUND G. BROWN JR., Governor

SF-SV-129-E
March 21, 2017
Page2
On August 24, 2016, Petitioner timely filed a petition for investigation pursuant to PERB
Regulation 33230. In its petition for investigation, Petitioner contends that there are
significant differences between the working conditions
of
SLPs and the other employees in the
certificated bargaining unit, and that these differences demonstrate a need for a separate unit
of
SLPs. FSUTA contends that the Petition was not filed timely, and that SLPs are appropriately
placed within the existing certificated unit. The District has taken no position on the matter.
On October 27, 2016, this office tentatively concluded, in an Order to Show Cause (OSC), that
although it was timely filed, the Petition must be dismissed because Petitioner had not
demonstrated that SLPs have a community
of
interest separate and distinct from other
employees in the existing certificated bargaining unit. Petitioner was afforded an opportunity
to show cause why the Petition should not be dismissed.
On December 13, 2016, Petitioner filed additional facts and argument in support
of
its Petition.
For the reasons discussed below, the Petition must be dismissed.
SLPs are Certificated Employees
"The term 'certificated person' refers to a person who holds one or more documents such as a
certificate, a credential, or a life diploma, which singly or in combination license the holder to
engage in the school service designated in the document or documents." (Ed
..
Code,§ 44006.)
The Commission on Teacher Credentialing issues credentials in speech-language pathology.
(Ed. Code, § 44265.3.)
Since 1976, PERB has consistently held that non-instructional certificated personnel are
appropriately included in a bargaining unit with other certificated employees, including
teachers. (See e.g., Los Angeles Unified School District (1976) EERB Decision No.
5.)2
The
only instances in which the Board has approved a separate unit
of
non-instructional certificated
staff, involved circumstances where no petitioner was seeking to include them in a larger unit
of
all certificated staff. (Oakland Unified School District (2001) PERB Decision No. 1464,
citing Pleasanton Joint School District, Amador Valley Joint Union High School District
(1981) PERB Decision No. 169 and Arcadia Unified School District (1979) PERB Decision
No. 93.)
Where a party seeks to establish a new unit via a severance petition, it must demonstrate that
the employees in the new unit have a community
of
interest separate and distinct from other
employees. (Lodi Unified School District (2001) PERB Decision No. 1429.) It is not
sufficient to show merely that the employees within the proposed new unit share a community
of
interest. In cases where a proposed unit contains only a single classification
of
employees,
it will generally be true that those employees have more in common with one another than with
other employees. But, a separate unit will be approved only where those employees share a
community of interest that is "unique, or separate and distinct" from others. (Id. at p. 17.)
2 Prior to 1978, PERB was known as the Educational Employment Relations Board, or
EERB.

Page 3
SF-SV-129-E
March
21
, 2017
Page 3
Community
of	Community of Interest	Interest
The OSC noted the alleged differences between SLPs and classroom teachers. For example,	The OSC noted the alleged differences between SLPs and classroom teachers. For example,
SLPs are subject to education and credentialing requirements that are unique. Specifically,	SLPs are subject to education and credentialing requirements that are unique. Specifically, the	the
District requires that SLPs hold a Speech-Language Pathology Services	District requires that SLPs hold a Speech-Language Pathology Services credential.	credential.
Acquisition
of
this credential requires a Master's degree in Speech-Language Pathology,	Acquisition of this credential requires a Master's degree in Speech-Language Pathology, which
in turn requires specific undergraduate coursework for the relevant Bachelor's degree. The
credential does not authorize its holder to perform classroom instruction. Petitioner also
asserts that SLPs who have the proper licensure can work in a variety
of
non-educational
settings. Although more than half
of
SLPs are employed in educational settings, others work
in home health, skilled nursing facilities, inpatient and outpatient hospital facilities, or private
practice. Petitioner asserts that this range
of
options within the career provides SLPs with
more job options than a classroom teacher. At the District, SLPs are within a different
supervisory chain than classroom teachers. Specifically, SLPs are supervised and evaluated by
the Assistant Director
of
Special Education, rather than school principals.
However, the OSC also noted that these facts, even
if
proven, would not meet Petitioner's
burden. For one reason, the existing certificated unit contains not only classroom teachers, but
other non-instructional certificated personnel as well. Those other pupil support services
employees include counselors, librarians, nurses, and special education instructors. Many
of
the alleged differences between SLPs and classroom teachers appear to be shared with other
pupil support services personnel. For another reason, there are significant shared interests
between SLPs and other certificated employees, including classroom teachers, the Petitioner
ignores. As noted by FSUTA, "all certificated employees' employment is in large part shaped
by important statutory rights .... " PERB has noted that the common applicability
of
Stull Act
evaluation requirements and entitlement to permanent status weighs in favor
of
a unit
of
all
certificated employees, including classroom teachers and pupil support services personnel.
(Grossmont Union High School District (1977) EERB Decision No. 11.) And SLPs share a
common goal, student success, with other employees in the certificated bargaining unit. (See
Oakland Unified School District, supra, PERB Decision No. 1464.) ·
In response to the OSC, Petitioner emphasizes inevitable peculiarities in the SLP job,
obscuring overarching similarities with other positions. For example, Petitioner notes that
SLPs are qualified to administer assessments for speech, language, voice, and fluency
disorders, whereas teachers, counselors, nurses, and librarians are not. Petitioner notes that
SLPs conduct assessments related to state eligibility requirements for special education and
present that to the student's Individualized Education Plan (IBP) team, whereas the other
members
of
the IEP team do not conduct the same assessments. These allegations focus on the
particular to such a degree that they achieve a kind
of
tunnel vision. In essence, Petitioner
asserts that SLPs should be in their own bargaining unit, because no other classifications are
SLPs.
The OSC noted that PERB has long held that differences in specific prerequisite degree
programs are less relevant than the similarities. (See Kings County Office
of
Education (1990)
PERB Decision No. 801.) Nurses, librarians, counselors, or SLPs may have distinct degree
programs from one another in many ways, but each requires a bachelor's degree or higher, plus

SF-SV-129-E
March 21, 2017
Page4
specialized training. Apparently in response to this, Petitioner emphasizes that SLPs require a
master's degree and misquotes the OSC as describing SLP degrees as being "more similar than
different" to the degrees
of
other certificated staffers. Contrary to Petitioner's assertion, this
investigation has not shown "willful ignorance" to the differences between SLPs and other
certificated staffers where those_have been alleged. Rather, it has been concluded that these
differences are outweighed
by
the fundamental similarities SLPs share with other certificated
employees, as certificated employees.
It is axiomatic that a classification will have more in common with itself than with other
classifications. As the Board noted in San Diego Unified School District (1981) PERB
Decision No. 170:
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.
(Id. at p. 5.) As noted above, the only unusual circumstances in which PERB has approved
bargaining units
of
non-instructional certificated staff have been where the alternative would
have left them unrepresented. ( Oakland Unified School District, supra, PERB Decision
No. 1464.) That is not the case here. 	SLPs may differ from other certificated employees in a
variety
of
interesting ways, but those differences are insufficient reasons to depart from forty
years
of
PERB precedent. The Petition is hereby dismissed.
Right
of
Appeal
An appeal
of
this decision to the Board itself may be made within ten (10) calendar days
following the date
of
service
of
this decision. (Cal. Code Regs., tit. 8, § 32360.} To be timely
filed, the original and five (5) copies
of
any appeal must be filed with the Board itself at the
following address:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; Gov. Code,§ 11020, subd. (a).) A
document is also considered "filed" when received by facsimile transmission before the close
of business together with a Facsimile Transmission Cover Sheet which meets the requirements
of PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)

SF-SV-129-E
March 21, 2017
Page 5
The appeal must state the specific issues of procedure, fact, law or rationale that are appealed
and must state the grounds for the appeal (Cal. Code Regs., tit. 8, § 32360, subd. (c)). An
appeal will not automatically prevent the Board from proceeding in this case. A party seeking
a stay of any activity may file such a request with its administrative appeal, and must include
all pertinent facts and justifications for the request (Cal. Code Regs., tit. 8, § 32370).
If a timely appeal is filed, any other party may file with the Board an original and five (5)
copies of a response to the appeal within ten (10) calendar days following the date of service of
the appeal (Cal. Code Regs., tit. 8, § 32375).
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the San Francisco Regional Office regional office. A "proof of service"
must accompany each copy of a document served upon a party or filed with the Board itself
(see Cal. Code Regs., tit. 8, § 32140 for the required contents). The document will be
considered properly "served" when personally delivered or deposited in the mail or deposited
with a delivery service and properly addressed. A document may also be concurrently served
via facsimile transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, § 32135,
subd. (c).)
Sincerely,
Daniel Trump
Regional Attorney
DT