Santa Ana Educators Association (Felicijan and Hetman) (PERB 2008E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
CHRISTINE L. FELICIJAN &
WAYNE HETMAN,
Charging Parties,
V.
SANTA ANA EDUCATORS ASSOCIATION,
Respondent	Respondent.
DECISION OF THE
STATE OF CALIFORNIA
SANTA ANA EDUCATORS ASSOCIATION,
V .
Charging Parties,
WAYNE HETMAN,
CHRISTINE L. FELICIJAN &
Case No. LA-CO-1226-E
PERB Decision No. 	2008
March 10, 2009	March 10, 2009
PERB Decision No. 2008
Case No. LA-CO-1226-E
Appearances:s:	Appearance 	Christine L. Felicijan & Wayne Hetman, on their own behalf; California
Teachers Association by Brenda E. Sutton-Wills, Attorney, for Santa Ana Educators
Association.	Association.
Before McKeag, Neuwald and Dowdin Calvillo, Members.	Before McKeag, Neuwald and Dowdin Calvillo, Members.
DECISION	DECISION
Teachers Association by Brenda E. Sutton-Wills, Attorney, for Santa Ana Educators
Christine L. Felicijan & Wayne Hetman, on their own behalf; California
DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by Christine L. Felicijan (Felicijan) and Wayne
Hetman (Hetman) (collectively Charging Parties), and Santa Ana Educators Association
(Association), to the proposed decision of an administrative law judge (ALJ). 	The unfair
practice charge and complaint alleged that the Association breached its duty of fair
representation by failing to fairly represent Felicijan and Hetman in disputes with the
Santa Ana Unified School District (District) over inappropriate materials contained in their
personnel files. 	The ALJ ruled that, for the period of time Charging Parties were on a
reemployment list pursuant to Education Code section 44978.1, they were not "employees" asreemployment list pursuant to Education Code section 44978.1, they were not "employees" as
personnel files. The ALJ ruled that, for the period of time Charging Parties were on a
Santa Ana Unified School District (District) over inappropriate materials contained in their
representation by failing to fairly represent Felicijan and Hetman in disputes with the
practice charge and complaint alleged that the Association breached its duty of fair
(Association), to the proposed decision of an administrative law judge (ALJ). The unfair
Hetman (Hetman) (collectively Charging Parties), and Santa Ana Educators Association
Board (PERB or Board) on exceptions filed by Christine L. Felicijan (Felicijan) and Wayne
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations

defined in section 3540.IG)
of
the Educational Employment Relations Act (EERA	defined in section 3540.1(i) of the Educational Employment Relations Act (EERA),1
nd
therefore the Association had no duty to fairly represent them at that time.
), a
therefore the Association had no duty to fairly represent them at that time.
and
The Board has reviewed the entire record in this case, including but not limited to, the
unfair practice charge, the complaint and answer, the hearing transcripts and exhibits, the
ALJ's proposed decision, the	ALJ's proposed decision, the Charging Parties' exceptions and the Association's exceptions.	Parties' exceptions and the Association's exceptions.
Based on this review, the Board reverses the ALJ's proposed decision and remands this matter
to the ALJ for further hearing on the merits
of
the allegations in the complaint.	to the ALJ for further hearing on the merits of the allegations in the complaint.
BACKGROUND	BACKGROUND
Because only the issue
of
Charging Parties' employment status
is
before the Board on
appeal, we relate only the facts relevant to that issue.
Because only the issue of Charging Parties' employment status is before the Board on
Charging Parties' Placement on the 39-Month Reemployment List	Charging Parties' Placement on the 39-Month Reemployment List
Felicijan and Hetman were certificated employees
of
the District and members
of
a
bargaining unit represented by the Association. The District placed both on a 39-month
reemployment list pursuant to Education Code section 44978.1 because they had exhausted
available leave and were still unable to perform their duties for medical reasons.
reemployment list pursuant to Education Code section 44978.1 because they had exhausted
2
bargaining unit represented by the Association. The District placed both on a 39-month
Felicijan and Hetman were certificated employees of the District and members of a
available leave and were still unable to perform their duties for medical reasons."
The parties stipulated that Hetman was on the 39-month reemployment list at all times
relevant to the allegations in the complaint. Felicijan was placed on the reemployment list on
June 27, 2006 and thus, was on the reemployment list for a portion
of
the time relevant to the
complaint.	complaint.
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2
EERA is codified at Government Code section 3540 et seq. Unless otherwise
As discussed in more detail below, Education Code section 44978.1 requires an
employer to place a certificated employee who is unable to perform his or her duties for
medical reasons and has exhausted available leave on a 39-month reemployment list. When
the individual is released by a doctor to return to work, he or she must be reinstated to a
position equivalent to that held before placement on the reemployment list.
2
position equivalent to that held before placement on the reemployment list.
Based on this review, the Board reverses the ALJ's proposed decision and remands this matter
Charging
unfair practice charge, the complaint and answer, the hearing transcripts and exhibits, the
The Board has reviewed the entire record in this case, including but not limited to, the
appeal, we relate only the facts relevant to that issue.
June 27, 2006 and thus, was on the reemployment list for a portion of the time relevant to the
relevant to the allegations in the complaint. Felicijan was placed on the reemployment list on
The parties stipulated that Hetman was on the 39-month reemployment list at all times
indicated, all statutory references are to the Government Code.
the individual is released by a doctor to return to work, he or she must be reinstated to a
medical reasons and has exhausted available leave on a 39-month reemployment list. When
employer to place a certificated employee who is unable to perform his or her duties for
As discussed in more detail below, Education Code section 44978.1 requires an

Complaint and Answer	Complaint and Answer
On July 9, 2007, the Office
of
the General Counsel issued a complaint alleging that the
Association breached its duty
of
fair representation by its conduct on August
16
and
October 21, 2005, June 30, 2006, and in January 2007. 	Paragraph 1
of
the complaint alleged:
"Charging Parties are employees within the meaning
of
Government Code section 3540.lG)."	"Charging Parties are employees within the meaning of Government Code section 3540.1(i)."
On August 13, 2007, the Association filed its answer to the complaint. The answer
generally denied the allegation that Charging Parties were employees. It also raised the
affirmative defense that "Charging Party Hetman was not an employee under EERA after
December 12, 2006" and therefore allegations
of
unlawful conduct toward him in 2007 must be
stricken from the complaint. The answer did not raise an affirmative defense regarding
Felicijan.	Felicijan.
The PERB Hearing	The PERB Hearing
On the first day
of
hearing, the ALJ, on his own motion and without advance notice to
the parties, bifurcated the hearing to first take evidence on whether Charging Parties were
employees
of
the District at the time
of
the alleged violations. Neither party objected to the
bifurcation. Before the presentation
of
evidence, the Association stated its position that "to the
extent the parties are validly on the 39-month rehire list they are employees." Charging Parties
took the same position. Nonetheless, the ALJ ruled that Charging Parties' employment status
was a jurisdictional issue on which he was obliged to "make a correct conclusion
of
law."
3
was a jurisdictional issue on which he was obliged to "make a correct conclusion of law."
3
October 21, 2005, June 30, 2006, and in January 2007. Paragraph 1 of the complaint alleged:
Association breached its duty of fair representation by its conduct on August 16 and
On July 9, 2007, the Office of the General Counsel issued a complaint alleging that the
stricken from the complaint. The answer did not raise an affirmative defense regarding
December 12, 2006" and therefore allegations of unlawful conduct toward him in 2007 must be
affirmative defense that "Charging Party Hetman was not an employee under EERA after
generally denied the allegation that Charging Parties were employees. It also raised the
On August 13, 2007, the Association filed its answer to the complaint. The answer
took the same position. Nonetheless, the ALJ ruled that Charging Parties' employment status
extent the parties are validly on the 39-month rehire list they are employees." Charging Parties
bifurcation. Before the presentation of evidence, the Association stated its position that "to the
employees of the District at the time of the alleged violations. Neither party objected to the
On the first day of hearing, the ALJ, on his own motion and without advance notice to
the parties, bifurcated the hearing to first take evidence on whether Charging Parties were

Over the remainder
of
that day and all
of
the following day, the parties presented
evidence
of
Charging Parties' employment status from 2005 through 2007.
Over the remainder of that day and all of the following day, the parties presented
3 At the end
of
the
second day
of
hearing, the ALJ informed the parties that they could either: (1) proceed to the
scheduled third day
of
hearing and present evidence on the merits
of
the case, or (2) postpone
presenting the remainder
of
the case on the merits pending a ruling on the jurisdictional issue.
The parties chose the second option.
presenting the remainder of the case on the merits pending a ruling on the jurisdictional issue.
ALJ's Proposed Decision	ALJ's Proposed Decision
The ALJ found the Association had no duty to represent Charging Parties in their
disputes with the District over their personnel files because they were not employees
of
the
District at the time
of
the violations alleged in the complaint, except for the alleged violations
involving Felicijan that occurred before her placement on the 39-month reemployment list.
Relying on Hacienda La Puente Unified School District (1988) PERB Decision No. 685
(Hacienda La Puente), the ALJ reasoned that the definition
of
"employee" in EERA section
3540.lG) covers only those individuals currently employed by a public school employer. 	The
ALJ found that the plain language
of
Education Code section 44978.1 indicates that individuals
on a 39-month reemployment list are not currently employed, because,
if
they remained
employees, there would be no need for them to be "returned to employment" when they are
medically able to work.	medically able to work.
As further support, the ALJ noted that one
of
the letters the District sent to Felicijan
regarding her placement on the 39-month reemployment list indicated that she may be eligible
for unemployment insurance benefits. Having found that Charging Parties were not employees
under EERA while they were on the 39-month reemployment list, the ALJ concluded that the	under EERA while they were on the 39-month reemployment list, the ALJ concluded that the
3During the first day of hearing, the ALJ also heard testimony on the merits of the case
from two of Charging Parties' witnesses so that they would not have to return to testify another
day. No part of these witnesses' testimony is relevant to the issue of Charging Parties'
employment status and the Board has not considered that testimony in rendering this decision.	employment status and the Board has not considered that testimony in rendering this decision.
day. No part of these witnesses' testimony is relevant to the issue of Charging Parties'
from two of Charging Parties' witnesses so that they would not have to return to testify another
'During the first day of hearing, the ALJ also heard testimony on the merits of the case
4
The parties chose the second option.
scheduled third day of hearing and present evidence on the merits of the case, or (2) postpone
second day of hearing, the ALJ informed the parties that they could either: (1) proceed to the
evidence of Charging Parties' employment status from 2005 through 2007.' At the end of the
employees, there would be no need for them to be "returned to employment" when they are
on a 39-month reemployment list are not currently employed, because, if they remained
ALJ found that the plain language of Education Code section 44978.1 indicates that individuals
3540.1(i) covers only those individuals currently employed by a public school employer. The
(Hacienda La Puente), the ALJ reasoned that the definition of "employee" in EERA section
Relying on Hacienda La Puente Unified School District (1988) PERB Decision No. 685
involving Felicijan that occurred before her placement on the 39-month reemployment list.
District at the time of the violations alleged in the complaint, except for the alleged violations
disputes with the District over their personnel files because they were not employees of the
The ALJ found the Association had no duty to represent Charging Parties in their
for unemployment insurance benefits. Having found that Charging Parties were not employees
regarding her placement on the 39-month reemployment list indicated that she may be eligible
As further support, the ALJ noted that one of the letters the District sent to Felicijan

Association had no duty to represent them during that time. Accordingly, the ALJ dismissed
the entire complaint
as
to Hetman and also dismissed the allegations involving Felicijan that
were based on conduct after June 27, 2006.	were based on conduct after June 27, 2006.
Charging Parties' Exceptions	Charging Parties' Exceptions
Charging Parties except to the ALJ' s reliance on Hacienda La Puente to find that they
were not "employees" under EERA while they were on the 39-month reemployment list. First,
Charging Parties argue that they remained current employees while on the reemployment list
because Education Code section 44978.1 gives them an "absolute right"
to
return to work.
Thus, they contend, the reemployment list constituted an approved leave
of
absence and they
therefore remained employees pursuant to California State Employees Association (Hard, et
al.) (1999) PERB Decision No. 1368-S. They also claim the ALJ improperly relied on the
colloquial meaning
of
"reemployment" to find they were not employees. 	Second, Charging
Parties claim that, even
if
they were not employees, they were applicants for reemployment
and thus covered under EERA by virtue
of
the Legislature's amendment ofEERA in 1989 to
overrule Hacienda La Puente and include applicants in the definition
of
"employee" under
EERA.	EERA.
5
Charging Parties also challenge several rulings at the hearing. Most importantly, they	Charging Parties also challenge several rulings at the hearing. Most importantly, they
except to the ALJ' s refusal to compel the District to	except to the ALJ's refusal to compel the District to testify at the hearing. Charging Parties	testify at the hearing. Charging Parties
assert that testimony by District employees would have helped clarify their employment status	assert that testimony by District employees would have helped clarify their employment status
and that their case was prejudiced because the ALJ refused to compel such testimony.	and that their case was prejudiced because the ALJ refused to compel such testimony.
Charging Parties also claim the ALJ failed to accommodate their disabilities and prejudiced	Charging Parties also claim the ALJ failed to accommodate their disabilities and prejudiced
their case by	their case by not giving them advance notice that he would require them to present evidence	not giving them advance notice that he would require them to present evidence
about their	about their employment status. Finally, Hetman argues that his agreement to the stipulation	employment status. Finally, Hetman argues that his agreement to the stipulation
5
the entire complaint as to Hetman and also dismissed the allegations involving Felicijan that
Association had no duty to represent them during that time. Accordingly, the ALJ dismissed
overrule Hacienda La Puente and include applicants in the definition of "employee" under
and thus covered under EERA by virtue of the Legislature's amendment of EERA in 1989 to
Parties claim that, even if they were not employees, they were applicants for reemployment
colloquial meaning of "reemployment" to find they were not employees. Second, Charging
al.) (1999) PERB Decision No. 1368-S. They also claim the ALJ improperly relied on the
therefore remained employees pursuant to California State Employees Association (Hard, et
Thus, they contend, the reemployment list constituted an approved leave of absence and they
because Education Code section 44978.1 gives them an "absolute right" to return to work.
Charging Parties argue that they remained current employees while on the reemployment list
were not "employees" under EERA while they were on the 39-month reemployment list. First,
Charging Parties except to the ALJ's reliance on Hacienda La Puente to find that they

that he was on the 39-month reemployment list at all relevant times did not mean he agreed to
accept the ALJ' s interpretation
of
the term "reemployment" in the proposed decision.	accept the ALJ's interpretation of the term "reemployment" in the proposed decision.
Association's Exceptions	Association's Exceptions
The Association raises two points in its exceptions. First, the Association argues that
the ALJ's ruling that individuals on a 39-month reemployment list pursuant to Education Code
section 44978.1 are not employees is too broad because it applies to employment status in all
cases, not just those involving the duty
of
fair representation. Second, the Association
contends that placement on the 39-month reemployment list does not end the individual's
employment because the Education Code requires notice and an opportunity for a hearing
before the employment relationship can be terminated.	before the employment relationship can be terminated.
employment because the Education Code requires notice and an opportunity for a hearing
contends that placement on the 39-month reemployment list does not end the individual's
cases, not just those involving the duty of fair representation. Second, the Association
section 44978.1 are not employees is too broad because it applies to employment status in all
the ALJ's ruling that individuals on a 39-month reemployment list pursuant to Education Code
The Association raises two points in its exceptions. First, the Association argues that
DISCUSSION	DISCUSSION
EERA section 3544.9 requires an employee organization certified as the exclusive
representative
of
a bargaining unit to "fairly represent each and every employee in the
appropriate unit." EERA section 3540.1
G)
defines "employee" as "any 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." The issue in this
case is whether a person on a 39-month reemployment list pursuant to Education Code section
44978
.1
remains an "employee" for purposes
of
the duty
of
fair representation under EERA
during the 39 month period.
44978.1 remains an "employee" for purposes of the duty of fair representation under EERA
6
Education Code section 44978.l states in full:	Education Code section 44978.1 states in full:
When a certificated employee has exhausted all available
sick leave, including accumulated sick leave, and continues
to be absent on account of illness or accident for a period
beyond the five-month period provided pursuant to Section
44977, and the employee is not medically able to resume the
duties of his or her position, the employee shall, if not
placed in another position, be placed on a reemployment list
for a period of 24 months if the employee is on probationary	for a period of 24 months if the employee is on probationary
placed in another position, be placed on a reemployment list
duties of his or her position, the employee shall, if not
44977, and the employee is not medically able to resume the
beyond the five-month period provided pursuant to Section
to be absent on account of illness or accident for a period
sick leave, including accumulated sick leave, and continues
When a certificated employee has exhausted all available
6
that he was on the 39-month reemployment list at all relevant times did not mean he agreed to
case is whether a person on a 39-month reemployment list pursuant to Education Code section
Governor of this state, management employees, and confidential employees." The issue in this
public school employer except persons elected by popular vote, persons appointed by the
appropriate unit." EERA section 3540.1(j) defines "employee" as "any person employed by a
representative of a bargaining unit to "fairly represent each and every employee in the
EERA section 3544.9 requires an employee organization certified as the exclusive
during the 39 month period.

status, or for a period
of
39 months
if
the employee is on
permanent status. When the employee is medically able,
during the 24- or 39-month period, the certificated
employee shall be returned to employment in a position for
which he or she
is
credentialed and qualified. The 24-
month or 39-month period shall commence at the expiration
of
the five-month period provided pursuant to Section
44977.	44977.
The ALJ found the statute's use
of
the term "reemployment" dispositive. According to
the proposed decision, "[i]f one is currently employed
...
there is no need for
'reemployment."' As the ALJ recognized, the term "reemployment" typically involves an
individual returning to service following a separation from employment. (See, e.g., Ed. Code
sec. 44931 [reemployment
of
former certificated employee who resigned]; Ed. Code sec.
45308 [reemployment
oflaid
off classified employee].) Thus,
as
the term is commonly used, a
"reemployment list" is a list
of
individuals whose employment has been terminated, usually by
lay off, but who are eligible for reemployment. 	(E.g., Ed. Code sec. 45298 [classified
employees "laid off because
of
lack
of
work or lack
of
funds are eligible to reemployment for a
period
of
3 9 months and shall be reemployed in preference to new applicants"].)	period of 39 months and shall be reemployed in preference to new applicants"].)
The typical operation
of
a reemployment list is demonstrated by Education Code
sections governing classified employees. Education Code section 45192 provides, in relevant
part:	part:
When all available leaves
of
absence, paid or unpaid, have been
exhausted and
if
the employee is not medically able to assume the
duties of the person's position, the person shall, if not placed in
another position, be placed on a reemployment list for a period of39 months. When available, during the 39-month period, the
person shall be employed in a vacant position in the class of the
person's previous assignment over all other available candidates
except for a reemployment list established because of lack ofwork or lack of funds, in which case the person shall be listed in
accordance with appropriate seniority regulations.
work or lack of funds, in which case the person shall be listed in
7	7
of the five-month period provided pursuant to Section
month or 39-month period shall commence at the expiration
which he or she is credentialed and qualified. The 24
employee shall be returned to employment in a position for
during the 24- or 39-month period, the certificated
permanent status. When the employee is medically able,
status, or for a period of 39 months if the employee is on
employees "laid off because of lack of work or lack of funds are eligible to reemployment for a
lay off, but who are eligible for reemployment. (E.g., Ed. Code sec. 45298 [classified
"reemployment list" is a list of individuals whose employment has been terminated, usually by
45308 [reemployment of laid off classified employee].) Thus, as the term is commonly used, a
sec. 44931 [reemployment of former certificated employee who resigned]; Ed. Code sec.
individual returning to service following a separation from employment. (See, e.g., Ed. Code
reemployment."" As the ALJ recognized, the term "reemployment" typically involves an
the proposed decision, "[iff one is currently employed . . . there is no need for
The ALJ found the statute's use of the term "reemployment" dispositive. According to
The typical operation of a reemployment list is demonstrated by Education Code
accordance with appropriate seniority regulations.
except for a reemployment list established because of lack of
person's previous assignment over all other available candidates
person shall be employed in a vacant position in the class of the
39 months. When available, during the 39-month period, the
another position, be placed on a reemployment list for a period of
duties of the person's position, the person shall, if not placed in
exhausted and if the employee is not medically able to assume the
When all available leaves of absence, paid or unpaid, have been
sections governing classified employees. Education Code section 45192 provides, in relevant

In short, this section provides that when a person on the reemployment list is medically
able to return to work and a vacant position exists, the person will have a rehire preference
over other candidates. Thus, the person is not guaranteed reinstatement when he or she is
cleared to return to work, but must apply for an open position,
if
one exists. Consistently with
this language, courts have held that placement
of
a classified employee on the section 45192
39-month reemployment list terminates the person's employment. (Trotter
v.
Los Angeles
County Bd.
of
Education (1985) 167 Cal.App.3d 891, 895 [213 Cal.Rptr. 841]; see Jones
v.
Los Angeles County Office
of
Education (2005) 134 Cal.App.4th 983, 990 [36 Cal.Rptr.3d
617] [stating that case about placement
of
employee on section 45192 reemployment list
"involves plaintiff's discharge and defendant's refusal to reemploy her"].) Similarly,
placement
of
a classified employee on a 39-month reemployment list pursuant to Education	placement of a classified employee on a 39-month reemployment list pursuant to Education
Code section 45195 ends the individual's employment.4 (Davis v. Los Angeles Unified School
Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1131 [62 Cal.Rptr.3d 69].)	Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1131 [62 Cal.Rptr.3d 69].)
"involves plaintiff's discharge and defendant's refusal to reemploy her"].) Similarly,
617] [stating that case about placement of employee on section 45192 reemployment list
Los Angeles County Office of Education (2005) 134 Cal.App.4th 983, 990 [36 Cal.Rptr.3d
County Bd. of Education (1985) 167 Cal.App.3d 891, 895 [213 Cal.Rptr. 841]; see Jones v.
39-month reemployment list terminates the person's employment. (Trotter v. Los Angeles
this language, courts have held that placement of a classified employee on the section 45192
cleared to return to work, but must apply for an open position, if one exists. Consistently with
over other candidates. Thus, the person is not guaranteed reinstatement when he or she is
able to return to work and a vacant position exists, the person will have a rehire preference
In short, this section provides that when a person on the reemployment list is medically
Code section 45195 ends the individual's employment." (Davis v. Los Angeles Unified School
The 39-month reemployment list established for certificated employees by Education
Code section 44978.1 differs in significant ways from those established under sections 45192
and 45195. Section 44978.1 provides that
if
an individual on the list becomes medically able	and 45195. Section 44978.1 provides that if an individual on the list becomes medically able
Education Code section 45195, which applies to classified employees who have
suffered a nonindustrial accident or illness, states in relevant part:	suffered a nonindustrial accident or illness, states in relevant part:
E
If
at the conclusion
of
all leaves
of
absence, paid or unpaid, the
employee is still unable to assume the duties
of
his or her
position, the employee shall be placed on a reemployment list for
a period
of
39 months.
position, the employee shall be placed on a reemployment list for
8
Code section 44978.1 differs in significant ways from those established under sections 45192
The 39-month reemployment list established for certificated employees by Education
ducation Code section 45195, which applies to classified employees who have
employee is still unable to assume the duties of his or her
If at the conclusion of all leaves of absence, paid or unpaid, the
a period of 39 months.
At any time, during the prescribed 39 months, the employee is
able to assume the duties of his or her position the employee shall
be reemployed in the first vacancy in the classification
of
his or
her previous assignment. The employee's reemployment will
take preference over all other applicants except for those laid off
for lack of work or funds under Section 45298 in which case the
employee shall be ranked according to his or her proper seniority.	employee shall be ranked according to his or her proper seniority.
for lack of work or funds under Section 45298 in which case the
take preference over all other applicants except for those laid off
her previous assignment. The employee's reemployment will
be reemployed in the first vacancy in the classification of his or
able to assume the duties of his or her position the employee shall
At any time, during the prescribed 39 months, the employee is
8

to work during the 39-month period, "the certificated employee shall be returned to
employment in a position for which he or she
is
credentialed and qualified." (Emphasis
added.) Unlike the sections for classified employees, section 44978.1 contains no language
about vacant positions or a preference in reemployment over other applicants or candidates. In
the only published court
of
appeal decision addressing section 44978.1,	the only published court of appeal decision addressing section 44978.1 5
,' VVeguez
v.
Governing
Bd.
of
the Long Beach Unified School Dist. (2005) 127 Cal.App.4th 406 [25 Cal.Rptr.3d 526],
the court interpreted the above-quoted language to mean that reinstatement
is
not conditioned
"on the availability
of
a position." (Id. at p. 423.) Rather, the court held that section 44978.1
guarantees a right to reinstatement during the 39-month period once the individual
is
cleared
by his or her doctor to return to work. 	(Ibid.) This strongly resembles a return from a leave
of
absence pursuant to Education Code section 44973, which provides that a certificated
employee returning from a leave
of
absence "be reinstated in the position held by him at the
time
of
the granting
of
the leave
of
absence." Thus, based on the language
of
the statute itself,
placing an individual on the 39-month reemployment list constitutes the beginning
of
an
unpaid medical leave
of
absence rather than a termination
of
the individual's employment.	unpaid medical leave of absence rather than a termination of the individual's employment.
about vacant positions or a preference in reemployment over other applicants or candidates. In
added.) Unlike the sections for classified employees, section 44978.1 contains no language
employment in a position for which he or she is credentialed and qualified." (Emphasis
to work during the 39-month period, "the certificated employee shall be returned to
placing an individual on the 39-month reemployment list constitutes the beginning of an
time of the granting of the leave of absence." Thus, based on the language of the statute itself,
employee returning from a leave of absence "be reinstated in the position held by him at the
absence pursuant to Education Code section 44973, which provides that a certificated
by his or her doctor to return to work. (Ibid.) This strongly resembles a return from a leave of
guarantees a right to reinstatement during the 39-month period once the individual is cleared
"on the availability of a position." (Id. at p. 423.) Rather, the court held that section 44978.1
the court interpreted the above-quoted language to mean that reinstatement is not conditioned
Bd. of the Long Beach Unified School Dist. (2005) 127 Cal.App.4th 406 [25 Cal.Rptr.3d 526],
eguez v. Governing
The legislative history
of
Education Code section 44978.1 further sheds light on the
unique nature
of
the section's 39-month reemployment list. 	Section 44978.1 was added to the
Education Code in 1998 as part
of
S.B. 1019. (27B West's Ann. Ed. Code (2006 ed.) foll. sec.
44978.1, p. 557.) That bill sought to end the potential for abuse
of
sick leave by certificated	44978.1, p. 557.) That bill sought to end the potential for abuse of sick leave by certificated
Education Code in 1998 as part of S.B. 1019. (27B West's Ann. Ed. Code (2006 ed.) foll. sec.
unique nature of the section's 39-month reemployment list. Section 44978.1 was added to the
The legislative history of Education Code section 44978.1 further sheds light on the
5Two non-precedential decisions have addressed the employment status
of
an individual
on a section 44978. l reemployment list. In an unpublished decision, the Second District Court
of Appeal stated that placement of an employee on the section 44978.1 reemployment list was
not a dismissal and thus the employee "retained his status as permanent employee."
(Hackenberg v. Inglewood Unified School District (Apr. 6, 2005, B 172453, pp. 29-30)
[nonpub. opn.].) More recently, a superior court observed that "[n]othing in section 44978.l
indicates that an employee's placement on a reemployment list is a resignation or other
separation from his or her employment." (California Teachers Association v. Elk Grove
Unified School District (Super. Ct. Sacramento County, 2008, 06CS01190, p. 19).)	Unified School District (Super. Ct. Sacramento County, 2008, 06CS01 190, p. 19).)
9
separation from his or her employment." (California Teachers Association v. Elk Grove
indicates that an employee's placement on a reemployment list is a resignation or other
[nonpub. opn.].) More recently, a superior court observed that "[njothing in section 44978.1
Hockenberg v. Inglewood Unified School District (Apr. 6, 2005, B172453, pp. 29-30)
not a dismissal and thus the employee "retained his status as permanent employee."
of Appeal stated that placement of an employee on the section 44978.1 reemployment list was
on a section 44978.1 reemployment list. In an unpublished decision, the Second District Court
Two non-precedential decisions have addressed the employment status of an individual

employees. (Assem. Com. on Education, Analysis
of
Sen. Bill No. 1019 (1997-1998 Reg.
Sess.) as amended January 20, 1998, p. 3.) Prior to S.B. 1019, "each year an employee would
be able to collect another
10
days
of
full-pay sick leave and another five months
of
differential
pay, without ever returning to work." (Id., at
p.
2.) S.B. 1019 eliminated a certificated
employee's ability to receive a new allotment
of
sick leave and differential pay each year by
declaring that once those benefits have been exhausted in a single school year, an employee
who remains medically unable to return to work because
of
the same injury or illness must be
placed on a 39-month reemployment list. (Ibid.) Thus, it appears the Legislature intended
section 44978.1 to create an unpaid leave status for such employees in lieu
of
earning new paid
leave each school year when they continued to be absent due to the same injury or illness.
Importantly, the legislative history contains nothing to indicate the Legislature intended
placement on the 39-month reemployment list to end the employment relationship between the
certificated employee and the school district.certificated employee and the school district.
For the above reasons, we conclude that placement
of
an employee on a 39-month
reemployment list pursuant to Education Code section 44978.1 does not constitute a separation
from service. Thus, a person on that list remains an employee
of
the school district throughout
the 39-month period. As noted, the parties stipulated that Hetman was on a section 44978.1
reemployment list at all times relevant to the allegations in the complaint. Further, Felicijan
was on the same reemployment list as
of
June 27, 2006 and it is undisputed that she was an
employee of the District at all relevant times prior to that date. 	Accordingly, Charging Parties
were "employees" of the District, as defined in EERA section 3540.lG), at all times relevant to	were "employees" of the District, as defined in EERA section 3540.1(j), at all times relevant to
10	10
placement on the 39-month reemployment list to end the employment relationship between the
Importantly, the legislative history contains nothing to indicate the Legislature intended
leave each school year when they continued to be absent due to the same injury or illness.
section 44978.1 to create an unpaid leave status for such employees in lieu of earning new paid
placed on a 39-month reemployment list. (Ibid.) Thus, it appears the Legislature intended
who remains medically unable to return to work because of the same injury or illness must be
declaring that once those benefits have been exhausted in a single school year, an employee
employee's ability to receive a new allotment of sick leave and differential pay each year by
pay, without ever returning to work." (Id., at p. 2.) S.B. 1019 eliminated a certificated
be able to collect another 10 days of full-pay sick leave and another five months of differential
Sess.) as amended January 20, 1998, p. 3.) Prior to S.B. 1019, "each year an employee would
employees. (Assem. Com. on Education, Analysis of Sen. Bill No. 1019 (1997-1998 Reg.
employee of the District at all relevant times prior to that date. Accordingly, Charging Parties
was on the same reemployment list as of June 27, 2006 and it is undisputed that she was an
reemployment list at all times relevant to the allegations in the complaint. Further, Felicijan
the 39-month period. As noted, the parties stipulated that Hetman was on a section 44978.1
from service. Thus, a person on that list remains an employee of the school district throughout
reemployment list pursuant to Education Code section 44978.1 does not constitute a separation
For the above reasons, we conclude that placement of an employee on a 39-month

the allegations in the complaint.6 For this reason, the Association owed Charging Parties a
duty
of
fair representation at those times.	duty of fair representation at those times.
ORDER	ORDER
The Board hereby REVERSES the ALJ's proposed decision and REMANDS this
matter to the ALJ to conduct a hearing for the purpose
of
taking additional evidence on the
merits
of
the allegations in the complaint, and, upon completion
of
the hearing, make
recommended findings
of
fact and conclusions
of
law in consideration
of
the additional
evidence and the existing record.	evidence and the existing record.
Members McKeag and Neuwald joined in this Decision.	embers Mckeag and Neuwald joined in this Decision.
6In light of this ruling, we need not address Charging Parties' exceptions to the ALJ's
procedural rulings at the hearing.	procedural rulings at the hearing.
11
M
11
the allegations in the complaint." For this reason, the Association owed Charging Parties a
recommended findings of fact and conclusions of law in consideration of the additional
merits of the allegations in the complaint, and, upon completion of the hearing, make
matter to the ALJ to conduct a hearing for the purpose of taking additional evidence on the
The Board hereby REVERSES the ALJ's proposed decision and REMANDS this
'In light of this ruling, we need not address Charging Parties' exceptions to the ALJ's