Poway Unified School District (PERB 2441E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
POWAY UNIFIED SCHOOL DISTRICT,
Employer,
and
POWAY SCHOOL EMPLOYEES
ASSOCIATION,
Exclusive Representative.
Case No. LA-UM-867-E
PERB Decision No. 2441
June 29, 2015
Appearances: Atkinson, Andelson, Loya, Ruud & Romo by Gerald A. Conradi and Amy W.
Estrada, Attorneys, for Poway Unified School District; Ochoa Legal Group by Ricardo Ochoa
and Dovie Y oana King, Attorneys, for Poway School Employees Association.
Before Martinez, Chair; Huguenin and Gregersen, Members.
DECISION
GREGERSEN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Poway Unified School District (District) to the
proposed decision (attached) of a Hearing Officer. A unit modification petition (Petition) was
filed by the Poway School Employees Association (Association), the exclusive representative
of the District's Office/Technical and Paraprofessional Unit (Unit). A formal hearing was held
and the Hearing Officer issued a proposed decision concluding that 12 substitute classifications
occupied by substitute employees of the District shared a sufficient community of interest with
the employees in the existing Unit and therefore ordered that the substitutes be included in the
existing Unit.
The Board has reviewed the entire record in this case, including the proposed decision,
the District's exceptions, and the Association's response to the District's exceptions. Based on
this review, we find the Hearing Officer's findings of fact supported by the record and his

conclusions oflaw well-reasoned and in accordance with applicable law. We therefore affirm
the unit modification and adopt the proposed decision·aa ~ decision of the Board itself, subject
·to the discussion below of the District's exceptions.
PROPOSED DECISION
At issue before the Hearing Officer was the proposed inclusion of crossing gu~ds,
substitute crossing guards, and approximately 135 substitute classifications into the Unit.
With respect to the crossing.guard classification, the Hearing Officer determined that
while the parties stipulated to placing the classification into the existing Unit, the parties failed
¥ 	••• ·- • • 	• ••• • •• • • .. • -~ • • .. ' • ~ • •· .... ·- 	--~ 	••• ···-
to present any evidence that such a configuration would be appropriate. No facts were
presented establishing that the ·crossing guards shared a community of interest with Unit
empl<>yees, and therefore the Hearing Officer d~clined to add crqssing guards or the substitute
crossing guards to the existing Unit.1
With respect to the remaining ·substitute classifications, the H~aring Officer declh1ed to
address any classification that was not currently filled. Of the 135 Unit classifications
origmally petitioned for. only 12 classifications were filled by substitute employees at the time
of the filing of the Petition. Therefore, the Hearing Officer only looked at community of
interest factors with respect to the twelve filled posi!ions.
The Hearing Officer determined that the 12 petitio!led-for substitute classifications
shared mutual interests in _numerous areas, including: job duties, interaction and in~erchange
' 	. 	.
with other employees 1 qualifications, discipline, training 1 supervision> wages and work hours.
1 In support of his holding; the Hearing Officer cited Fremont Unified School District
(2014) PERB Decision No, 2397, citing Centinela Valley Union High School District (1978)
PERB Decision No. 62, which held that a Board agent should not accept parties' stipulated
units without scrutiny, which may include conducting a representation hearing and eliciting
evidence in support of the stipulated unit, in a unit modification case before PERB. Nothing
precludes parties from freely entering into an agreement to modify an existing unit without
participating in the PERB unit modification process, (PERB Reg. 32781.)
2

finding that substitutes are not CJ:\Sua.1 employees, the Hearing Officer determined that,
unlike casual ~mployees. substitutes had a reasonable expectation of continued employment
and therefore shared a sufficient community ofinterest with employees in the existing Unit.
DISCUSSION
· Generally, the District's exceptions focused on the Hearing Officer's fmding that the .12	Generally, the District's exceptions focused on the Hearing Officer's finding that the 12
substitute classifications at issue were not "casual" employees. PERB has long defined casual
emp~oyees as those who have a sporadic or intermittent relationship with the employer and
therefore lack a sufficient community of interest with regular employees to be included in the
regular unit. (Unit Determination for Employees of the California State University and
Colleges (19Sl) PERB'Decision No. 173-H, citing Mission Pak Co. (1960) 127 NLRB 1097.)
The. District urges the Board to adopt a test similar to the one used by the National Labor
Relati~ns Board (NLRB) for determining unit membership eligibility based on a minimum.
threshold μumber of hours worked within a specified time frame.
In support of its argwnent, the District contends that ·over 73 percent of the employees·
. 	.
in the petitioned~for :positions worked fewer than 20 days in an eightwmonth period preceding
the Pytition, and that the majority of them worked fewer than 10 days. The District is
essentially attempting to define a point at which an employee's relatio~hip with the District is
transformed from intermittent and sporadic to substantial and continuing. Such point would,
according to the District, represent a threshold test as to when an employee would be eligible
for bargaining unit membership. In support of its argument, the Distl}ct provided citations to
numerous NLRB cases wherein certain positions were excluded where such positions were
held by employees who did not regularly average four or more hours of work per week during
the quarter before a petition for unit modification was filed, (See Five Star Transportation Inc.
············..·········----------------------------------

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

Determination for Service Employees of the University of California (1983) PERB Decision
The District further argues that since the issuance of Dixie, supra, PER,B Decision
No. 171, changes in PERB precedent have required a different finding reg·arding the minimum
. 	.
employment relationship between a substitute and the employer to include an_ individual into a
bargaining unit. According to the District, since Dixie., PERB has used the ''established
interest formula" to determine when an employee is deemed sufficiently interested in
employment~related matters to allow him or her to vote on representation issues. The Di'strict
. . . 	•·, 	' 	......... ,
uses• Palo Alto Unifl.ed School District, et al. (1979) PBRB Decision No. 84 (Pa'to Alto) to
. 	.
articulate the "established interest forrmtla."3 In Palo Alto only the substitutes on the current
substitute list who had taught at least 10 percent of the pupil school days in the current or, 	.
previous school year were deemed eligible to vote in a-PERB conducted representation
election.
We disagree with the Dis1rict 1 s contention. There has been no change in applicable
PBRB precedent, Beginning with Palo Alto, supra; PERB Decisi~n No. 84, the Board
co:1cluded that all substitute employees should be included in the bargaining unit, but
established the ''established interest formula" as the threshold for vote1· eligibility in PBRB
cond1.1cted representation elections, In reaching its decision, the Board reasoned that while it is
presumed that salaries and other terms and conditions of employment affect all members of the
·unit, the choioei of a negotiating agent should be limited to those substitutes with an established
interest in employment relations with the employer. (Id, at p. 10.) PERB reaffitmed ibJ
distinction in Oaldand Unified School District (1988) PERB Order No. Ad-172 wherein it held
3 Despite the D~strict' s contention, the development of the Hestablished interest
fotmula" was not adopted after the Dixie decision, but in fact prewdates Dixie as is seen in the ·
District's citation to Palo Alto) supra, PERB Decision No, 84.
5

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

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

there is no dispute that these employees have a reasonable expectation of continuing
employment as substitutes for the District, in some cases for several years, we reject the
District's claim that these employees are "casual" for purposes of their exclusion.from the
bargaining unit,
Request for Stay of Activity
1n addition to its exceptions, the District simultaneously filed a Request for Stay of
Activity pending the issuance of this Board decision, According to the District, a stay of
f!.Ctivity is imperative b~cause PERB 1 s findings herein will seriously alter the administrative
time the District will expend in prepadn~ to address matters relative to negotiations regarding
-the e~ployees at issue. The Association did not respond t6 the District'a request.
As a threshold matter. PERB Regulation 32370> ''Request forStay of Activity/' appears
under Article 3, "Administrative Appeals." Under PERE Regulation 32350(a), an
administrati-ve decision does not include "(3) a decision which results from the conduct of a
formal hearing or from an investigation which results jn the submission of a stipulated record
and a proposed decision written pursuant to Section 32215 /, At issue herein is• precisely the
type of decision arising out of PERB Regulation 32350(a)(3) and exclud~d from the definiti'on
'of administrative decision, and therefore not subject to a stay.
As important, under PERB Regulation 32305, "Finality of Board Agent Decisions,"
"(a) Unless a party files a timely statement of exceptions to the proposed decision, the decision
shall become fm~ on the date specified. therein."· Unlike an administrative decision that is- 	.
final and effective i1pon issuance, a proposed decisiQn only·becomes final and effective if no
·exceptions are filed. Since ·exceptions were filed in this matter>.the proposed dec~sion did not
become final and the proposed order did not go into effect. As such:, the Distr~ct's Request for
Stay of Activity is not proper and is therefore denied.
8

ORDER
Based on the foregoing findings of fact, conclusior,is oflaw, and the entire record in this
case, the petition for unit modification by the Poway School Employees Association
(Association) in Case No. LA-UM~867-E is hereby GRAJ.'ITED, in part, consistent with the
_proposed decision.
Pμrsuant to the Education~! Employment Relations Act section 3545, subdivis~on (a),
and the Public Employment Relations Board (Board) Regulations, the Board adds the
following job classifications to the existing bargaining unit represented by the Association:
Office Assistant II, Li~rary Media Technician, LAN Administrator, Campus SecurityI 	.
Specialist, Health Services Technician, Program Aide ESS/ASES, Lead Middle School ASES -
Assistant, Instructional Assistant-Preschool, Instructional Assisfant ELL, Instructional
Assistant !~Special Education, Instructional Assistant fl-Special Education, and Athletic. 	' 	.
Trainer employed by Poway Unified·School District.
Chair Martinez and Member Hugueninjoined in this Decision,
·,
9

OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
POWAY UNIFIED SCHOOL DISTRICT,
Employer,
· and	and
POWAY SCHOOL EMPLOYEES
ASSOCtA TION, .
REPRESENTATION
CASE NO. LA-UM~867-E
PROPOSED DECISION
(February 13) 2015)
,Appearances: Atkinson. Andelson, Loya, Ruud & Romo by Gerald A. Conradi and Amy W.
Estrada, Attorneys, for Poway Unified School District; Ochoa Legal Group by Ricardo Ochoa
and ~ovie Yoana King, Attorneys. for Poway School Employees Association.
Before Yaron Partovi, Hearing Officer.
PROCEDURAL HISTORX:
The Poway School Employees Association (PSEA) is the exclusive repr~entative of
the employees at Poway Unified School District's (District) combined Office/Tec~ical and
Paraprofessional ~lassified bargaining unit (Unit). On March 25, 2013, PSEA filed a Petition
for Unit Modification (Petition), pursuant to the Educational Employment Relations Act
(BERA), 1 with the Public Employment Relt1tions. Board (PERB or Board) to add to the Unit:
(1) Crossing Guards and (2) Substitutes who fill-in for absent Unit n;iembers.
On April 29, 2013, the District asserJ;ed that the proposed unit modification is
inappropriate. During an October 10, 20 l3 settlement conference, the parties were unable to·
resolve this matter; however, the. parties stipulated to the submission of a joint statement of ·
1 EERA is codified at Government Code section 3540 et seq, All statutory references
are ta the Government Code, unless otherwise specified.
: 	i

facts and several exhibits. With the receipt of the parties• closing briefs on April 26, 2014. tlie
record was closed and the case w~s submitted for decision.2
·...
~~PULATED FACTS
The parties entered into a "Joint Stipulation of Relevant Facts" that pro~ides, in relevat!,t part:
1. The [District] is a public school district in San Diego and Poway, California.. ...
2. 	The [District]·is a "public school erpployer" pursuant to the provisions of
Government Code section 3540.l (k).
· · 3~ -- Tb:e [PSEA]'is tb:e·''exolusiverepresentativeu forth:e Office7Technrcal and ·· .
Pnraprofes.sional classified bargaining unit in the District pumiantto Government
Code section 3540.l(e) ..
4. 	Local _221 of the Service Employees International Union ("SEW") is the
"exclusive representative''. for the Operations Support Services clas•sified
bargaining unit in the District pursuant to Government Code section 3540.l(e).
SElU is not a party to the present Petition and has not sought to intervene in this
matter.
5. 	The description of PSBA bargaining unit members is currently set forth ·in Article
1 of the collective bargaining agreement ("CBA") between the District and PSEA,
at Section 1.1.7. That section states: · 	·
"Members of the unit" refers to all classified employees who are part of
a single unit which represents Office. Teclmical and Paraprofessional .
classified employees. All management, confidential, ·and supervisory · ·
employees anp all other classified employees are excluded from.the
above unit. Specific descriptions of this single unit of classifi~d
. employees are a~tached hereto marked as Appendix. A.
~ On June 17, 2014, PSEA filed an "Evidentiary Obj~tion to Respondent's Closing
Brief" asserting that the ·following facts contain~d in the District's closing brief were not part
of the eviden~iary record and are not relevant in this matter: "An employee is eligible to
become a PSEA member ifs/he remains current in dues owed to PSEA. • . . Voting may take
place at 'membership meetings, 1 and approval by a. majority of members is required to adopt,
~mend, or repeal any PSEA bylaw.... "· PERB advised the District that PSEA' s filing would
be treated as a motion under PERB Regulation 32190 and that the District could file a response
by no later than. July l, 2014. The District did not file any opposition to-the motion. Given
that the above facts are not contained in the stipulated facts, it is not proper to reference such
facts in this decision. (See e.g., Campbell Union High School District (1988) PERB Decision
No. 701.)
2

On March 25, 2013, PSEA filed a Petition for Unit Modification with [PERBJ;
The [P]etition sought to add the following unrepresented positions to PSEA's
bargain~ng unit:
_a. · Crossing guards; and
b. 	Substitutes in the following positions: substitute crossing guards, child care
substitutes, substitute clerks, substitute instructional assistaI!,tS, substitute classified
and campus security officers.
7. The District submitted its Response to the [Petition] on April 26; 2013. In its
response, the District argued.the necessity of presenting proof of majority support
and asserted there was an insufficient community of interest between the
petitioned~for ·cfassified substitutes and·cnrrent"bargaining uninnembets. Oi:t
June 26, 2013, the District withdrew its contention ihat the Petition required proof
of majority support. The District con:tinues to maintain that the petitionedwfor
classified substitutes lack a sufficient" community of interest with current
bargaining unit members.
a. 	The District does not oppose the inclusion of regular crossing guards in PSEA's
unit and PSEA and the District have agreed that regular crossing guards should
be included as paraprofessionals in the Classified Service.
9. 	The District has adopted the ' 1
merit system" which is codified in Education Code
section 45240 et seq. 	.
.10. Personnel Commission Director Deborah. Wulff oversees the·employrnent of both
·.. substitute and contract employees in the classified service.	substitute and contract employees in the classified servic~.
11. District Administrative Procedure ("AP") 4.301.1. .. exempts from the classified	District Administrative Procedure ("AP") 4.301. l. .. exempts from the classified
service:
3. Temporary (Limited Tenn) Employees!Position [sic]
a. Persons employed in temporaty (limited term) positions are exempt
from the classified service. These are persons employed to:
( 1) Perform a service of a temporary nature, the duration of
which shall not exceed six months (short term).
(2) Take the place· of an absent employee not to exceed the
period of absence of said employee (substitute).
12. Personnel Commission Rule"(''PC Rule") 10.100 defines ''limited term employee' 1
as:
· ·
3

An employee who is serving as a substitute for a regular member ~fthe
Classified Service or in a position established for a limited and specified
period of time, not to e:xceed six months.
13. The term "substitute," as used in the Petition and these stipulatio.ns, refers to
limited tenn employees as defined in AP 4.301.1 and PC Rule 10.100[.]
14. The CBA. at Section 1.1.9, de:flnes a ["]permanent employee" as a "regular
employee who has successfully completed an initial probationary period."
15. Th~ CBA, at Section 1. L 10, defines a ["}probationary employee" as: ·
[Al r~gular employee wlio will become permanent upon the successful
, completion of a prescnbed probationary period. 'Six months' as it relates to
· •probationary period' ~[sic] to be defi~ed as six months or 130 days of paid service 	· ·
whichever is longer.
16. PC Rule 10.100 defines a permanent employee as:
An employee who has completed a probatio.nary period in the class to which
assigned or who entered the class by transfert demotion, or
reinstatement/reemployment without serving a probationary period.
1?. PC Rule 10.100 defines a probationary ~ployee as ''[a]n .employee serving a
probationary period." Rule 10.100 further defi~es probationary period as:
A triai period ofBb:. months (or 130 working days, whichever is longer)
or one year (as determined by the Commission) before being advanced
into permanent status in the District. Immediately following an original
or promotional appointment to a permanent position from an eligibility
list AIL leaves, paid or m1paid, are excluded from the probationary
period.
18. The petitionedHfor classified substitute employees are not deemed probationary or
permanent 	·
19. In general, classified substit1.1te work in the.District is atwwill/on-call based on
District need. 	·
20. The petitioned-for classified substitutes may elect whether or not to accept a
substitute assignment. . 	·
21. Individuals may apply to the petitionedHfor classified substitute positions through
postings of the D~strict's Personnel Commission. 	·
·. 	.
22. In some cases, an individual work site may request that a particular individual be
hired as a petitioned-for classified substitute.
4

23. If an individual applies to be a petitioned-for classified substitute through a
Personnel Commission posting, the individual goes through a screening interview.
If the Personnel Commission observes no obvious concerns, deems the person
capable of communicating in English, and the individual has the minimal
certifications for the specific assignments· sought, the individual may be placed 011
the classified substitute list.
24. If an individual is recommended as a petitioned-for classified substitute by an
individual site, the PersonnelCommission will only verify if the individual has
the minimal qualifications for the specific assignments sought; tnere is no 	·
screening interview,
···'25-:PC Rule 30;200.4·relatesto·the·a:ppointmentof "substitute or limited term·
positions.'' PC Rule 30.200.4 states:
A. 	Whenever the appointing authority shall require the appointment of
a person to a limited tenn position in lieu of an employee on an
approved leave as defined in Chapter 65, the appointing authority
shall so notify the Commission office and indicate the probable 	·
duration of the appointment.
B. 	Whenever the appointing authority shall require the appointment of.
a person to a limited term position, the duration of which is not to
e:x:ceed six months, the Commission shall be so· notified, and
informed of the duration of the appointment.
C. 	All appointments to substitute or limited~tenn positions shall be
made from appropriate eligibility lists. Eligibles shall be certified
in accordance with their position on the appropriate employment
list and their willingness to accept appointment to such po_sition as
limited-term employees. 	·
D. 	Limited-term employees shall not earn seniority credit, nor be
granted benefits regularly given to the Classified Service, with the
following exceptions: 	·
1. Limited-term (substitute) employees whe work continuously for
more than six months shall be gra11ted sick leave benefits as
defined in Section 45191 of the Education Code.
2. Limited~tenri (substitute) employees whose assignment is for more
than six months shall be paid for those holidays occ1irring during
their assignment period.
5

26. The PC Rules which must be followed when selecting candidates for contract
classified employment are set forth in Chapters 40 and 50 of the PC Rules ....
These processes may include a competitive examination, ranking of
candidates, and the creation of eligibility lists to determine appointment.
Currently, all PSEA unit classifications are subject to PC Rule processes in
their sele~tion for employment.
27. Classified substitutes are not subject to the selection processes set forth in
Chapters 40 and 50 of the PC Rules to be placed on an eligibility list. .
28. The District's job postings for the petitioned-for substitute positions use the
same description of.the position and examples of duties as do the job postings
of the equivalent contracted positions in the existing unit. For example:
a. 	Exhibit 7 is a true and correct copy of a District job posting for an
1
'Instructional Assistant I-Special Education" in the existing unit,
whereas Exhibit 8 is a true and correct copy of a District job
posting for a "Substitute Instructional Assistant 1-
Speoial Education/' one of the petitioned-for titles;
b. ··Exhl"bit 9 is a tme and correct copy of a District job posting. for a
"ProgramAide-ASES,, in the existing unit, whereasExhibit 10 is
a true and correct copy of the District's current job posting for a
"Substitute Program Aide-A.SES," one of the petitioned-for·
titlest]
29. In addition to requiroo certifications Jtnd Jicenses, the applicable classification
descriptions require contract classified employees to possess· specified
education or experience to qualify on the PC eligibility list Based on
recruitment necessities, parts of th~se qualifie@.tions may be waived. Such
additional qualifications contained in the classification descriptions include,
but are not limited to:
a. 	An Administrative Assistant II must liave completed college"level
coursework in business, office management, or a related field and must
have four years of responsible secretarial or administrative assistance
experience involving public contac~.
b. 	A Library Media Tech11ician must have two years of experience working
in a library or media center.
c. 	A Health Services Technician must have two years of ex.perience
providing health services to children and/or working in a school office.
6

d. 	A Computer Resource Assistant must have received training in the use of
networks, computers, mobile devices, and software and must have two
years of experience working in an educational environment.
e. 	A School Administrative Specialist I must have completed two years of
college-level coursework in computer technology and must have two
years of experience in a highly computerized tecbnical office
environment,
. 	.
30. Although classified substitute.s must meet the minimum certifi~tion requirements
·of a given position to substitute in that pqsition, no classified substitutes are 	·
required to hold the education and/or experience qualifications called for in the
applicable classification description.
31. Candid~t~s for the petitioned-for substitute positions ar~ required to possess the
same CPR and First Aid certifications as employees in the existing unit, pass the
same fingerprint background check as employees in the existing unit, and
successfully complete the same functional physical exam as employees in the
existing unit.
32. When the District hires an individual in a petitioned-for substitute employee
position who has never previously worked for the District, that individual. is
required to attend the same District new employee orientation as are newly-hired
m.embers	. of the existing unit who have never	. 	previously worked	, 	for the District.
33. Individual.s hired as Substitute Program Aides in. the ESS orASES programs are
required to meet the same qualifications as are individuals hired as ESS/ASES
Program Aides within the existing unit
34; Individttals hired in the "substitute instructional assistant" position are required to
meet the.same qualifications under the federal No Cl:μld Left Behind ("NCLB..)
law as are individuals hired in Instructional Assistant positions within the existing
PSEA unit. 	, 	.
3.5. Both the Jnstmctional AssistantI•Special Education job dese'ription and the
substitute Instrnctional Assistant !"Special Education job description require
"coursewo1k in child development related to students with special needs" and
"one year experience working with students of various age levels requiring a
specialized learning environment" In practice however, these requirements are
waived for both positions. All applicants for any substitute instructional assistant
position must pass the NCLB examination and may no longer meet this
requirement with college/university credits.
36. In addition to the two~hour NCLB certification exanw:iation, contract Instrnctional
A~sistauts must successfully complete a qualifying examination to be, eligible to
work in the position.
7

37. In addition to the twoMhour NCLB certification examination, contract Library
Media classifications must successfully complete a. qualifying .examination testing
their library skills and knowledge.
38. Individuals substituting for absent Health Services Technicians in the existing
PSEA unit are required by the District to attend the same Health Services
orientation/training which the District requires newly-hired Health Services
Technic.ians in th~ existing unit to atteml
39. The petitioned~for substitute positions represent all the substitute positions which
substitute for absent members of, or temporarily fill vacancies in, the m,cisting 	·
unit. Except for substitute teacher, there are no other substitute positiqns at the
District whicfrsubstitute for absent members of; ·or temporarily fill vacancies in;
PSENs unit.
. 40. The District currently utilizes other substitute job 'titles, such as "Substitute
Custodi~» and "F 009 Service Substitute," which substitute for absent members
of, or temporarily fill vacancies in, the District's Operations Support Services
classified b'argaining unit represented by SEID Local 221. These substitute job
titles are not part of PSEA' spetition.
41. The District and PSEA agree that the petition.is not intended to bring confidential
substitutes into the PSEA unit and therefore, if PSEA's petition is granted, the
unit shall exclude substitutes for absent confidential employees.
42. With ex~ption of the substitn1e crossing guards, thepetitioned~for substitμte
positions only substitute for absent members of, or temporarily fill vacancies in,
the existing unit. With the exception of the substitute crossing guards, these
substitute positions do not substitute for absent employees o:t: or temporarily fill
vacancies in, the District that are outside PSEA's existing unit. The substitute
crossing guards only substitnte· for regular crossing guards who are absent, 'or
temporarily fill vacancies of regular crossing guards.
43. In some instances, individuals providing substitute services for the District may
alternate between working as a substitute fot abse_nt members of PSEA's unit,
absent members of SEIU's unit, and/or absent confidential employees. PSEA's
petition only seeks to represent these individuals when they are performing
services for absent members of; or temporarily filling vacancies in, PSEA 's
existing unit
44. When-a petitioned~for substimte employee is filling in for an absent unit member
or temporarily filling a vacant unit position, that substitute employee is supervised
by the same sup~rvisor as the absent unit member or the vacant position. The
,District does not have a separate supervision stmcture for substitute employees.
8

45. When a petltioned~for substitute employee is filling in for an absent unit member
or temporarily filling a vacant unit position, the substitute employee is perfonning
work at the same location as the absent unit inember or the vacant position. The
District does not have separate work spaces for substitute employees. Petitioned~
for substitute employees may also :share a physical workspace with members of
the District' certificated bargaining unit, the SEIU bargaining unit. and/or other
non-PSEA unit members ..
46. When a petitioned~for substitute employee is filling in for an absent unit member
or temporarily filling a vacant unit position, the substitute employee is interacting
with members of the existing unit, and·with teachers and administrators_, to the
same extent as the absent un.it member or vacant position would. The District
does not segregate or otherwise separate substitute employees from existing unit
· members. 	· · 	...
47. When a petitioned:-for substitute employee is filling iu'for an absent unit member
ortemporarily filling a vacant unit position, that substitute employee is .
perfonning.some of the same job 'functions as the absent unit member, ··or
employee in a vacant positon, would have performed that day. Supervisors assess
·the ability of a substitute to perform the duties of the position of the absent
employee and work assignments for substitutes will differ depending upon the
ability of the substitute to perform some or all of the duties of the absent
employee. The District does not have a separate job duties (sic] to be performed .
only by substitute·employe~s.
48. When a petitioned-for substitute employee is filling in fur an. absent unit member
or te111porarily :filling a vacant unit position, that substitute employee sometimes 	·
w,orks the,same houts as the absent unit :member, or vacant position, would have
worked that day. However, the substitutes occasionally perform substitute·
services for fewer hours than the regular employee: The District does not have a
separate work schedule for substihlte employees.
49. When a petitioned-for substitute employee is filling in for an absent unit merriber
or temporarily filling a vacant unit position, that substitute employee's
compensation is funded from the same.sources of revenue as the ab.sent unit
member, or vacant position, would have been paid from. The District does not
have separate funding sources for substitute employees.
50. Every individual wor}dng in the petitioned-for titles is paid an hourly rate which
conesponds to the hourly rate for positions within ilie existing PSEA unit, and
this rate of pay may differ daily based on the assignm,ent accepted by the
substitute. Mo st of the time, but not afways, the rate the substitute employee is
paid corresponds either to the specific position or the job family in which they are
substituting. For example:
9

a. 	The rate which the District pays individuals who are substituting for Senior
Infonnation Systems Support Analysts in PSEA• s unit is Step I of the current
salary range for PSEA unit members ,serving in •the position of Senior
Information Systems Support Analyst (Range 48).
b.. The rate which the Distdct pays individuals who are substituting for Career
Guidance Technicians in PSEA's unit is Step 1 of the current salary range for
PSEA unit members serving in the position of Career Guidance Technician I[
(Range27).
c. 	The rate which the District pays indiyiduals who are substituting for Health
Servjces Technicians in PSEA's unit is,Step 1 oftbe current salary range for
PSEA miit members serving in the position of Health Services Technicjan .
(Range·26). 	.. 	· 	· 	·
d. 	The rate which the District pays individu:als who are substituting for
Comput~r Resource Assistant II in PSEA •s unit is Step 1 of the current salary
range for PSEA 1:J]lit members serving ~n the position of Computer Resource
Assistant II (Range 26).
e. 	The rate which the District pays individuals who are substituting for Campus
Security Specialists in PSEA' s Unit is Step 1·of the current salary range fot
PSEA unit membeI$. serving in the positiofl: of Campus Security Specialist
(Range23).
f. 	At the time PSEA ftled its positjon [sic], the rate which the District paid
individuals who _were substituting for clerical employees in PSEA's unit was
Step 1 of the current salary range for the unfilled position of Office As~istant I
(Range 20). Since then, the Office Assistant I classification has been
•abolished. and the District anticipates that individuals substituting for clerical
. employees in PSENs unit will henceforth be paid at Step l of the current
salary range for PSEA unit members serving in the position of Office
A~sistant II (Range 22).
g. 	The rate which the District pays individuals who are substituting for Instruction
Assistant J~Special Education in PSEA 's unit' is Step 1 of the current salary range for
PSEA unit ine111bers serving in the position of Instructional Assistant I-Special
. Education (Range 20). 	·
h. 	The rate which the District pays individuals who are substituting for Preschool
Instructional Assistants in PSEA's unit is Step 1 of the current salary range. for PSBA
unit members serving in the position of Preschool Instructional Assistant (Range 20).
i. 	The rate which the District pays individuals who are substituting for Library Media
Assistants in PSEA I s unit is Step 1 of the current salary range for PSEA tmit
members serving in the position of Library Media Assistant (~nge 20).
10

J. 	The rate which the District pays indiYi.duals who are substituting for Program Aides
in the ESS or ASES programs inPSEA'sunit is Step 1 of the current salary range for
PSEJ\ unit members serving in the position of Program Aide in the ERR orASES
programs (Range 16). 	· 	·
51. The petitioned-for classified substitutes do not attain seniority and are not
considered to have. a seniority	. 	date. .
52. PSEA and the District have negotiated into their current [CBA] a provision that
allows employees who retire from the existing unit to count up to five (5) years of
. service as an hourly employee toward eligibility for ~ost-retirement health
insurance benefits.
53. Substitute·employees of the District participate in the same retir~meut plans
(either CalPERS. PARS or, less frequently. CalSTRS) as do classified employees.
in the existing PSEA unit. 	' 	·
54. The petitioned-for classified substitutes are not eligible for transfers ..
55. The petitioned"for classified substitutes do not accrue vacation.
56. The petitioned-for classified substitutes do not receive nor are they eligible for
health and welfare benefits, 	·
57. The petitioned-for classified substitutes do not earn sick leave or holiday pay,
unless they fall within the exception set forth in PC Rule 30.200.4 .. : .. Under the
PC Rules, only substitute employees "who work continuou.sly for more than six
months shall be granted sick leave benefits as defined in Section 54191 bf the
Education Cod~." Additionally, only substitute employees "whose assignment is
for more than sil( months shall be paid fot those holidays occurring during their
assignment period." 	·
58. With the exception of Health Services Technicians, neither employees in the
petitionedMfot substitute positions no.r those in the existing PSEA unit are required
to undergo any form of training as a condition of employment. Both groups of
employees are expected to bring to the job their prior skills, knowledge and
· experience and learn additional skills while on the job ..
59, The petitioned~for classified substitutes do not receive staff development training.
60, The petitioned-for classified substitutes are not provided District e~mail accounts.
61. To dismiss a current PSEA bargaining uniti:nember from employment 1 the
District must follow the procedures set forth·in District AP 4.313.~ ["reasonable·
cause" for disciplinary action against probationary employees; enumerated causes
11

for permanent employee~ with a right to appeal]. The District also must. in most
cases, adhere to a system of progressive discipline as set forth in District Board
Policy [sic] 4.313.
62. A classified ·substitute need not be "dismissed" or "laid off'; the District may
. si~ply elect not to contact the individual to offer him/her an assignment.
· 63.. When therc;i is a reduction in force, current PSEA bargaining unit members ma.y
only be laid off in accordance with Article 15 of the CBA .•. , Article 15
provides unit members with rights regarding notice, bumpiug, and reemployment.
64. PSEA unit members are evaluated by their designated supervisors in accordance
with Article 11 of the CBA. . . . According to Article 11, permanent employees
·are ·subject to a fotmal evaluatio:tfonce every one or fwo scKc,oI years; depending ·
on their length of service. In practice, however, such evaluations of PSEA unit
members .often do not occur with the frequency anticipated in _the CBA.
65. Classified substitute employees are not subject to any fix.ed method :of evaluation.
66. The District .maintains a list of available substitute employees, and employees on
this· list have a reasonable expectation of future employment as a substitute with
the District, absent any concerns about their work performance or their conduct.
The petitioned-for classified substitutes have no expectation of regular (i.e., non-
substitute) employment with the District[.]
67. In some cases, employees who are first employed as substitlltes for absent PSEA
unit members or in vacant unit pos1tlons are siibse4uently hired into a position in
the PSEA unit. For·ex.ample, of the 139 individuals who performed services for
the District as substitutes in the petitioned~for titles between July 2012 and March ·
2013, 11 of them (nearly 8%) were hired by the District into PSEA-represented
classified positions by February 2013.
68. Some employees who have retired from the District in a position within PSEA' s
unit return to wo,rk for the District in the petitioned-for substitute .employee
positions.
69. It is common for less-senior employees in the existing PSEA unit to move :fr9m
one job classification to another as they are laid off from their previous positions,
or as other positions become available. 	·
·70. The petitioned-for substitute classified employees have a higher turnover rate than
employees in the established PSEA unit. However, many substitute employees
have worked for the District in that capacity for a number of years.
71. Approximately three out of four substitute employees who perfonned services for
the District in the petltioned~for titles during_ the 20l,2w2013 school yea.I: worked as
···
:
12

substitutes for only one classification in the PSEA unit. Of the 139 people who
worked in the petitioned~for titles between July 2012 and March 2013, only 32
sttbstituted in more than one classification. Further, of those 32 individqals, 10
substituted exclusive-ly for paraprofessional classifications.
72. Individual employees in the existing PSEA unit work as little as one (1) hour per
day and as many as eight (8) h01.1~ per day, depending on how many hours per
day they have been. contracted for. Similarly, employees in the petitioned-for
substitute positions may be scheduled to work for the District as little as one (1)
hour in a day or as many as eight (8) hours in a day. 	.
73. The work year for 9.5 (9½) month employees in the PSEA bargaining unit is 185
days.
74. The work year for 10 month employees in the PSEA bargaining unit is 195 days.
75. The work year for 10.5 (101/z) month employees in the PSEA bargaining unit is
202 days.
76. The work year for 11 month employees in the PSEA bargaining unit is 20? days.
,77. The work yeai: for 11.5 (11 ½) month employees in the PSEA bargaining unit is
220 days. 	·
78. The work year for 1.2 month employees in the l'SEA bargaining unit is 245 days.. 	.
79. The payroll prior to the date PSEA filed the instant petition for unit inoclification
ended on February 25, 2013.
80. ~etweenJuly 1, 2012 and February 25, 2013, the District employed a total of q4
different indiyiduals as classified substitutes in the petitioned-for positions.
81. [Seventy five] of the individual classified substitutes worked a total of 1odays or
fewer between July 1, 2012 and February 25, 2013.
82. [Sixteen] of the individual classified substitutes worked between 11 and 20 days
in total between July 1, 2012 and February 25, 2013._
83. [Twenty five] of the individual classified substitutes worked between i l and 50
days in total between July l, 2012 and February 25, 2013.
' 84. Eight of the individual classified substitutes worked between 51 and 113 days
between July 1, 2q12 and Febmary 25, 2013.
13

ISSUE
Whether it is approp~iate to add the Crossing Guard and petitioned-for Substitute
classifications to the Office/Technical and Paraprofessional Unit represented by PSEA.
CONCLUSIONS OF LAW
I. 	Legal Status of Sllbstitutes
·Education Code section 45103 expressly exempts Substitute employees from the
classified service in school districts that have not adopted a merit system.3 (Ed. Code§ 45103,
¼ 	• 	•• 	~ 	• 	•• 	• • • •
subds. (b)(l) and (f).) Here, however, the District has adopted a merit system and ·established a
Personnel Comm1ssion (PC) pursuant to Education Code section 45240. As such, personnel
'
matters concerning classified employees are administered in accordance with the PC Rules.
Pursuant to j:he District's PC Rules and Administrative Procedure-which also delineate
exemptions for classified s~ic~a i;:lassified Substitttte serving as a "limited term employee>!
is not a classified employee and is not subject io the merit sys~em.
'Section 3540.1, subdivision.Ci) provides:
"Public school employee" or "employee" means a person
employed by a public school employer except persons elected by·
popular vote, persons appointed by the Governor of this state,
management employees, and confidential e~ployees.
In Center Unified SchoolDistriat (2014) PERB Decision No; 2379 (Center USD)," the .
Board held that employees excluded from _the Education Code definition of "classified service"'
(in that case, Noon Duty Aides) could nonetheless be considered "public school"employees"
under the EERA .. The Board explained that although "the Education: Code expressly ex.eludes
such employ~es from the definition of 'classifi'ed service,"' the employees fell within EERA's
3 Education Code section 45103, subdivision (b)(l) provides: ''Substitute and short~
term employees, employed and paid for less than 75 percent of a school year, shall not be a .
part of the classified se,rvice."
. 14

. 	.
broad definition of "public school employee." (Ibid,, citing Pittsburg Unified School District
· (1976) EERB4 Decision No .. 3 [Pittsburg] and Fontana Unified &hool District (2004) PERB
Decision No. 1623 [Fontana],) The Boa.rd noted that while section 3540.1, subdivision ( e)
formerly defined "exclusive representative" as the representative of"certificated or classified
. 	.
employees/' the Legislature changed the definition so that it now. defines the exclusive
representative as the representative of "public· school employees" as defined in subdivision
(j)."5 (Id., p. 5.) The broad definition of "public school employee" under BERA "is not
limited in any way to certificated employees or etnployees in the cla_ssified service." (Id.,
pp. 3-4.) Like the Noon Duty Aides hi Center USD, the Substitutes at issue-here are school
employees with representational rights under BERA:- "the Board bas long held that [Noon
' 	.
Duty Aides] are 'public ·school employees' within the meaning of section J54D.1, subdivisi~n
(j)1 and, that they may appropriately be included in a unit of classified employees for collective
bargaining purposes." (Id •• p. 3.) 'It is therefor~ well-settled un4er Center USD, that d~spite
the specific exclusion contained in the Education Code, employees falling within the broader
public scl1ool employee definition provided in BERA "should enjoy the same rights afforded
other public school employees to bargain collectively through a representative of their own
4 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
5 The Legislature enacted this change to the BERA in.light of the Board's issuance of
Castaic Union School District (20 I 0) PERE Order No. Adw3 84 in which a majority of the
Board interpreted the BERA to conchlde that Noon Duty Aides have no collective bargairiing
rights under the BERA because they are expressly excluded :from the definition of ' 1
classified
service" in the Education Code. In light of the ~egislature' s amenchnent to the EERA, the
Board overruled this J?-olding in Center USD, supra, PERB Decision No. 2379, p. 5.
15

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

An employtlce holding two positions with th.e same employer, e.g.,
part-time instrL1ctional aide and part-time bus driver, might well
be included in two separate bargaining units represented by two
different exclusive representatives. Such a situation might result
in the employe.e paying dues to two unions. and :might even result
in some confusion, but the result is not contrary to EERA's
genei:al provision of the right·of employees to have a single
exclusive representative. 	·
The Board has also held that substitute employment in other school districts is not an
impediment to 1he formation of a bargair;ing unit nor wquld it detract from substitutes'
·community ofinterestfothe terms and·con'dition.s· of employment with the··school districl w···
question. (Palo Alto Unified School District, et al.·(I 979) PERB Decision No. 84 ALJ
decision, p. 16 [Palo Alto USD].}
The BERA should be liberally interpreted so as 10 effecmate its purpose of affording
public school employees the right to organize and be represented in their employment relations
by an exclusive representative. (§ 354:0,) Therefore, in view oftlw foregoing discussion and
authorities, and absent contrary Board precedent, it is found that Substitutes who fill in for
absent Unit members are ~•public school employees" subject to section 3540.1, subdivision (i).
IL 	No Presumption of Appropriat§ Unit ·
In Sweetwater Union High School District (1976) EERB Decision No. 4 (Sweetwater},
PERB held that there are three appropriate classified units under BERA:. (I) an instructional
aides (paraprofessional) unit; (2) an office~technical and business services unit; and (3) an
' 	' 	.
operations-support services unit. InFoothi/l-DeAnza Community College District (1977)
EERB Decision No. 10, the Sweetwater units were made presumptively appropriate, thereby
creating what is commonly called the Sweetwater presumption. Although the Sweetwater unit
configuration is "preferred," such configurati'ons·are neither the only nor the most appropriate
units for classified employees as PERB has allowed a variety of.other classified units.
17

(Compton Unified School District ( 1979) PBRB Decision Na. 109.) Here. the unit represented
by PSEA is a combined unit comprised of Office-Technical employees and Paraprofessional
employees. PERB records-of which official notice is taken-show that in or about July
1996, California School Employees Association, Chapter 313 (CSEA) was the ·exclusive
representative of a.se:uarate Office~Technical Unit and Paraprofessional Unit. On July 22,
1996, PERB issued a Unit Modification Order granting.a petition to combine these units into
one, but warned ..Issuance of this Order shall not be in,,terpreted to mean that the Boa,rd woJJld. 	.. 	. 	. . 	.
find this Unit, as modified, to be an appropriate unit in a disputed case." Ih other words, no
. determination was made by PERB to find this consolidated unit to be appropriate.
The configuration of this unit""'--iwo combined Sweetwater units (i.e., Office-Technical
and Paraprofessional Unit)--shall not be disturbed by this decision. (Arclldia Unified School
Dkitrict (1979) PBRB Decision No. 93, p. 13 [''The Board will not disll.1rb an existing unit
when its composition is not at issu.e"]; see also, Santa Clara Unified School Di~trlct (2007)
PERE Decision No. 1911. p. 6 [PERB is also disinclined to disturb units that are "stable and in
existence for some time»].) Moreover, given that PSEN s consolidated Office-Technical
Paraprofessional unit has not.been found to be either appropriate or inappropriate by PBRB;
there is no presumption that the existing unit is appropriate. It logically follows that the
standard against which the requested unit (i.e., the Unit plus Substitute employees) is judged
shifts to whether it is an appropriate unit within the meaning of section 3545, subdivision (a).
(See Elk Grove Unffied School District (2004) PERB Decision No. 1688 (Elk Grove USD).)
18

III. · U;oit Determinatieg
Given. that there is no presumption to rebut, PERE must weigh the evidence to
determine whether the propose~ unit modification is appropriate based on the factors in section
3545, subdivision (a) which provides:
In each case where the appropriateness of the unit is an issue, the
board shall decide the qt1estion on the basis of commtmity 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 ofthe·unit·on the ·efficient operation of the ·
school district.
·
·
Therefore, in determining whether a unit is an appropriate unit, PERB balances; (1) ·the .
community of interest of employees; (2) the establish~dpractices; and (3) the effect of the size
of the unit on the efficient operations bf the employer.
Where, as here; the unit represented by .PSEA is not a Sweetwater up.it, the proper
inquiry is whether the requested unit configuration is m;i appropriate unit-not whether it is
more appropriate than the existing unit configuration. (Long Beach Commzmity College
District (1999) PERB Decision No. 1315;ElkGrove USD, supra~ PERB Dec~ion No. 1688.)
A. Community of Interest
In determining whether there is a community of interest, PERB considers multiple
factors, including: (1) the extent to which employees share education and qualiffoations; (2)
training and skills; (3) job functions; ( 4) method of wages or pay schedule; (5) hours of work;
(6) fringe benefits; (7) supervision; (8) frequency of contact with other ~mployees; (9)
interchange with other employees; and other related factors. (See, e.g., Elk Grove USD, supra,
PERB Decision No. 1688.) Additional relevant criteria were ide11tified by PERB in Redondo
Beach City School District (1980) PBRB Decision.No. 114, including sources offunding,
19

purposes
of
various programs, evaluation procedures,
comp~rison
of layoff
[and dismissal]
provisions, different instructional practices
and
wotl<lng
conditions. (Id., citing
to
Peralta
Community
College District
(1978)
PERB
Decision
No, 77
(Peralta
CCD);
Oakland
Unified
School
District
(1977) EERB
Decision No.
15,)
The overriding ·consideration
is
whether the employees share substantial mutual
interests
in
matters subject to meeting
and
negotiating. (Fontana, supr~.
PERB
Decision
No. 16.23;.$an
Diego
Community College
District (2001) PERE
Decision
No.
1445;
Monterey
Peninsula Community College
District
(1978) PERB Decision
No.
76.) Unit detenninations
are based upon the actual work performed
by
the incumbents.
(Hemet Unified School
D_istrict
(1990) PERB
Decision No. 820.).
The
point of inquiry
ih~n
is whether the petitioned•for
·classificati9ns share substantial mutual interests ili consideration of the totality of ·
9ircmnstances presentedpere.
(Monterey
Peninsula
Community Coll~ge
District, supra, PERB
Decision No. 76.)
The
Board's treatment of unit detenninations
for
substitute employees under EERA has
evolved over the years. Early
PERB cases found that found s~bstitute certificated employees
lacked a community of interest with regular classroom
teach,ers.
(Belmont
Eleme,:itary
S<;hool
District (1976) EERB
Decision No,
7;
Petaluma City Efomentary and
High Schoof Districts
(1977) EERB Decision
No.
9;
Oakland Unified
School District, supra.
EE~
Decision
No. 15;
Los Rios Community College District (1977) EERB Decision
No. 18).
Subsequently,
. 	. in
Peralta
CCD, supra, PERB Decision No. 77, it
was
held that section
3545
6 esttblishes
~
rebuttable presumption that
all
classroom teachers sh0uld be placed in a single unit, absent a
6 Section 3545, subdivision (b)(l), provides in relevant part,
11
In all.cases.,
..
[aJ
negotiating unit that includes classroom teachers shall not be appropriate unless it at least
includes all of the classroom teachers employed by the public school employer.
...
"
20

showing of a lack of conum.toity of interest betwe~n the groups, Two month~ later, the Board
issued its decision in Palo Alto USD, s~pra. PERB Decision No. 84 finding that a separate unit
of substitute certificated employe~s share a community of interest amongst themselves.7
Subsequently, the Board issued several decisions excluding substitute employees from
certificated bargaining units. (Paso Rabies Union School District, etal. (197?) PERB
Decision No. 85; Berkeley Unified School District (I 979) PERB Decision No.101; Jefferson ..
. 	.
School Distrlci (1980) PERB Decision No. 133; El Monte Union High School Dtstri~t (1980)
PERE Decision No. 142.)
After these decisions, the Boarcl shifted from its treatment of placing substitute
employees·in separate units and adopted a line of cases th~t appli~d a mt>re nuanced framework
when considering whether to include substitutes with regular ·employees. In the seminal case
of Dixie Elementary School.District (1981) PERB Decision No .. 171 (Dixie I), the Board found
that a certificated unit which included Slibstitute eniployees was appropriate. In that case, the
Boara found that it was not.relevant that individual siibstitutes n:iay not have expectancy of
.
continued employment because substitutes, as a class, do expect future employment. That
decision was affirmed by the Board in Dixie Elementary School District (1983) PERB
Decision No. 298 (Dtxie II) where ·an unfair practice charge ha4 been filed because the district
refused to bargain with the certificated unit after substitutes and temporary employees had
been placed in that u~it pursuant to Dixie I. The Board found that the district failed to offer
either new facts or argL1ments of law supporting its contention that substitutes were not
properly placed in the unit of full-time classroom teachers. Subseq1..1ently. in Oakland Unified
7 Howeveri the Board determined that it would not apply the test formulated in Peralta
CCD, supra, PBRB Decision No. 77 where retroactive application of the test would cause
dismption and instability in the existing certificated unit. (Palo Alto USD, supra, PERB
Decision No. 84, p. 8.)
21

School District (1983) PERB Decision No. 320 (Oakland), the Board affirmed a hearing ·
officer's decision granting a petition to add all regular certificated substitute employees to the
certificated unit after finding a sufficient community of interest betwe.en these two groups of
employees. Similarly, in Palo Alto Unified School District (1983) PERB Decision No. 352,
PERB approved a unit comprised of both substitute teachers and regular teachers ..
_PERB 's unit determination of substitute classified·employees remains consistent with
Df.xie Elementary School District, s1;tpra, PERB D~cision No. 171,.and its progeny. For
example, in San~a _Clara County Qfflce of Education (1990) PERB Decision No. 839, the
·Board affirmed the hearing officer's decision to grant a imit modification petition filed by the
'union, which sought to add substitute bus drivers to an existh1.g bargaining unit containing full~
time bus drivers. In making the unit determination of classified substitutes, the hearing officer
utilized the same community of interest factors and principals applied to cases involving
certificated substitutes. (Id., pp. 4-5.) The hearing officer concluded that," ... the criteria
used to determine community of interest are the same for certificated and classified
employees/' (Ibid.; emphasi~ added)8 Thus, the ~o~unity of interest criteria applies here to
· detennine whether the proposed unit is appropriate.
1. 	Crossing Guards and Substitute Crossb1g GuarQ§
The parties have stipulated that the Crossing Guard classification be placed in the
existing Unit. However, the parties have not presented any evidence that such a configuration
would be appropriate. "In a unit modification hearing, the importance of live testimony from
8 Also relevant to thls matter is the Board.' s earlier decision in San Diego Urdjled
School District (1981) PERB Decision No. 170 where the ·Board denied the petitioner's request
to carve out a separate unit of substitute bus drivers from the existing unit gfven that both
_groups sham a strong community of μiterest and also to avoid the potential for a fragmented
work force among all other occ;upational groups in the ex,isting unit. 	·
22

7
incumbents in the disputed positions cannot be overstated.'' (Fremont Unified School District
(2014) PERB Decision No. 2397.) The Board has held that a Board agent should not accept
parties' stipulated units without scrutfoy, which may include conduct~g a representation
hearing and eliciting• evidence in support of the stipulated unit. (Ibid., citing to. Centinela
Valley Union High School District (1978) PERB Decision No. 62.) The record is devoid of
facts shQwing that Crossing Guards share a community of interest with Unit employee~. For
ex.ample, there is no showing that the Crossing Guards and Unit employees: share similar
wages hours and fringe benefits; perform functi_onally equiv~en~ work duties; share similar
. lines of supervision; or have similar education, certification or training. Accordingly, the
Crossing Guards shall not be added to the Unit. Given that the proposed unit does not include
Crossing G11ards, the Substitute Crossing Guards-who presumably perform the same
functions-are also .excluded giveu the lack of ~vidence showing community of interest among
qther classified staff in the Unit. ·.
2. 	Vacant Positions
The Petition seeks to add classified Substitute classifications to the existing Unit.9 The
record shows that there are approximately US classifications i~ the exi11ting Unit. The record
. 	.
does not support that there are Substitute classifications corresponding to each of the 135
classifications. PERB has long declined ta make a determination regarding the·appropriate
unit placement of a classification with no incumbent. (Marin Comm1:tnity College District
9 Some clarification may be needed to define the difference between a "position" and a
"classification." In.Alum Rock Union Elementary School District (1983) PE.RB Decision
No. 322, the Board defined "position" as «a group of duties and responsibilities which are
intended to be performed by one employee." A "classification" was defined as "any number of
positions which are sufficiently similar in duties and responsibilities that the same job title, 	·
minimum qualifications, qualifying tests, and salary range are appropriate for all positions in
the dass." (Ibid.)
23

(1978) PERB Decision No. 55.) This is true even when the parties have reached a stipulation
as to the appropriate unit placement of vacant positions. (Mendocino Community College
District (1981) PERB Decision No. 144a.}
Here, at the time of the filing of the Petition, only the-following Unit positions were
filled by Substitute employees: Office Assistant II; Library Media Technician; LAN
Administrator; Cam.pus Security Specialist; Health Services Technician; Program Aide
ESS/ASES; Lead Middle School ASES Assistant;Jnstructional Assisumt~Preschool;
Instructional Assistant ELL; Instructional
. Assistant I-Special Education; Instructional
Assistant II"Special Edu~ation; and Athletic Trainer. Excluding the ahovewreferenced
classifications, there is no evidence in the record to show that all the classified positions in the
Unit are currently filled by an incumbent. PERB also cannot speculate that Substitutes will fill
in for each type of absent classified position in the Unit. Thus, PERB cannot make a unit
detennination for the other.petitioned~for Substitute classifications since there is no evidence
that there are any employees occupying corresponding Unit positions.
3. 	Office Assistant II, Librm:y Media Technician: LAN Administrator: CamQYB
Security S;Qecialist: Health Services Technicia,g,; Program Aide ESS/ASES: Lead
Middle School ASES Assisfant: Athletic Trqiner; and Instructional Assistant~
In determining whether a community of interest exists pursuant to .section 3545, all
further references to VSubstitutes" shall be to the aforementioned classifications.
a. 	Job Functions and Duties
In Santa Clara County Offiae of Education, supra, PERB Decision No. 839, the Board
approved a unit modification petition to ada substitute drivers to a pennanent bus driver
bargaining unit finding that "[b]argaining unit drivers transport students in minivans ...
substitute drivers drive the same vans and transport the same students over the san.1e routes as
24

, unit drivers." Moreover, "like the permanent driver, the substitute driver is required to check
the oil, gas, motor, lights, emergency buzzer, etc ... before beginning the route." (Id., p. 3 of
the ALJ's Proposed Decision.) Similarly here, the relevant Subs1itutes are tasked with
performing the same work as Unit meu.1bers they temporarily replace. In reviewing the job ·
descriptions and examples of job duties of the Substitutes;the disputed positions perform
either the same job functions or a subset of th~se :functions. as would have been perfonned by
the absent Unit members. The work :function of Unit memb~rs varies on any given day;
however, the Substitutes are assigned to perform the duties the absent Unit member would
have performed that day. Accordingly, there are similar(if not identical) work duties and
functions between these Substitute~ and their classified counterparts.10
b. 	Qualifications and Educatiou
Individuals may apply to si1bstitute in classified District positions .either .through
postings by the District's Personnel Comrnission,(PC) or, upon a request from a specific school
site. If the individual applies through the PC, s/he undergoes a screening interview. but if a
site recommends a specific individual, the PC will assess whether the individual meets the
minimum qualifications. To be hired as a• probationary or .\'ennanent employee, an individual
must go through the PC's competitive examination process, which is more rigorous. I do not
.find these differences to be dispositive of whether both groups share a community of interest
given that the Board recently observed, ''the fact tha1 an employer has a more complicated or
lengthier hiring process for its classified employees whereas [the petitioned~for Noon-Duty
Aides] are hired 'infonnally' and more or less at the discretion of the individual school
10 The fact that substitutes do not have District e-mail accm.mts does not negate the
showing that substitutes perform essentially the same work functions as the absent Unit ·
me1hbers.
25

principals_, does not dictate that [Noon-Duty Aides] belong in a unit separate from the
classified employees. (Center USD, supra. PERB Decision No. 2379, pp. 5-6, citing to
Pittsburg, supra, EERB Decision No. 3.)
. 	'
The Substitute classified employees possess job qualifications similar to those
possessed by the employt;1es in the existing Unit. Generally, S_ubstitutes are required to pass
minimum qualifications that are also required of their classified c_ounterparts including, but not
limited to: first aid certifications; passing background ch~cks and physical exams; and
completing new employee orientation.
There is evidence that some Substitute classifications share similar qualifications with
other Unit members. Substitute Program Aides in the ESS/ASES programs must possess the
same qualifications as their regularly employed counterpart Program Aides in the same
programs. Individuals occupying the Substitute Instructional Assistant classificati_on share
similarities with Instructional Assistants in the Unit since they meet the same qualifications
requiring them to pass the No Child Left Behind (NCLB) ex~ination. The record also ·shows
that although the job description for the Instructional Assistant IMSpecial Education requires
specialized coursework in child development for special needs students~ pil.ls one year of
experience in a specialized work e11Yironment, tbis requirement 'is waived for the Substitμte
classification. Library Media Tec1micians are requirecl to complete a two 7hour NCLB_
. certification examination in addition to com]?leting_a qualifying examination relevant to library
skills. TI1e Library Media Technicians in the Unit mus~ also have at least two years of
experience working in a library or media center. It is unclear from the record whether
Substitute Library Media Technicians actually 1:iave sitnilai- qualifications; however, it i~
undisputed that Substitutes are not required to have the same level of education or experience
26

to perform the duties ofLibrary Media Technicians. The Health Services Technician and their
Substitutes are required to attend and complete a Health/Services orientation/training.
Although a Health Services Technician must have two years of experience providing health
sen,ices to children ancVor working in a school office, such experience is not required to qualify
as a Substitute Health Services Technician. As such, there is s01ne evidence that they have
similar qualifications.
No specific facts were provided concerning the work qualifications and education level
. 	.
of the Lead Middle S ~hool ASBS Assi~tant, ~AN Administrator, Campus Sectl!ity Specialist,
Office Assistant IT 11 and Athletic Trainer. Also lacking from the record was sitrtilar evidence
'
for their Substitute counterparts. However, the record shows that the Syibs~itutes are not
requir~d to meet the same minimum certification requb:ement or possess the same qualification
and education levels of the Substitutes' corresponding classifications. With the exception of
the Health Services Technicians, the above Substitutes are also not required to undergo any
form of training as a condition to employment.
c. 	Sources of Funding
The District funds a Substitute employee's compensation from 1he same revenue source
used to pay the incumbent in tb.e classified position. Notwithstanding, any differences in
funding for the Substitutes and Unit employees is :endered mo~t under Stanislaus County
Office of Education ( 1993) PERB Decision No. 1022, in which the Board approved a unit
modification petition despite diffei:ences in 1 9-mong other things, funding sources. (See also,
Fairfield-Suisim Unified School District (1983) PERB Decision No. 370 [differences in
ll However, the record provides that substitute "clerks" are not required to hold similar
educational or experience qualifications to fill the substitute positions presumably for either the
Office Assistants II or Administrative Assistants I.
27

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

pattern is applied for candidates substituting for either the Campus Security Specialist, Office
Assistant IT. lnstmctional Assistant, Library Media Assistant or Program Aide classifications.
Substittites and Unit members have similar working hours which can vary. between one
to eight hours. However, the hours of the Substitutes are based on an ·as-needed basis by. the
District. Unit members have different work year schedules. For example, 9 .5 month
employees work 185 days per year, while 12 month employees work as many as 245 days per
year .. Substitutes' work years also vary depending on their assignments. FQr example, in less. 	.
than one year, some Substitutes worked 10 or \ewer days while others wod,;:ed as many as 113
days. 	However, Substitutes do not have separate work schedules because their assignment is
transitory and dependent on the District's operational need during any particular time period.
The differences in wages, l1ours and other worlrlng conditions between ~e two groi.u,s of.
employees is not a persuasive argument for rejecting a proposed unit that includes both groups,
''since fpr all practical purposes the hours, wages and either terms and conditions of
employment are mainly within the [employer's] control" (Oakland, supra, J?BRB Decision
No. 320, p. 5), and therefore "would he negotiable if the unit modification petition is granted,"' 	.
(Fontana Unified School District, supra, PERB. Decision No. 1623; Redwood City Elementary
School Dittrict ( 1979) PERB Decision N:o. 197; El Monte Union High School District (19&2)
PERB Decision No. 220.)
Unlike Substitutes) Unit employe~s receive a number of statutory benents including:
heal1h and welfare, post-retirnment health instu-ance benefits, and accrual of vacation leave.
Substitutes designated as "limited~term employees" are barred from receiving similar
entitlements pursuant to the District's personnel rules. Specifi.cally, PC Rule 30.200.4(0)
states that limited~term employees "shall not earn seniority credit, nor be-granted benefits
29

regularly given to the Classified Service," unless'1hey are appointed to fill in for employees for
more than six months. Some Substitutes are entitled to earn sick leave or holiday pay provided
they work continuously for more than six months. (PG Rule 30.200.4.) However, of the 124
individuals that worked as Substitutes between July 1, 2012 and February 25, 2013, none
worked at least six months.
The District asserts that it is precluded under PC Rule 30.200.4 from assigning a
seniority date tq Substitutes~ or from awarding _them benefits regularly received by classified
employees unless the six month exception in PC Rule 30.200.4 is met. fdo not find this
concern sufficiently compelling to justify the exclusion of Substitutes from the Unit. Section
3540 states that:
This chapter shall not supersede other provisions of the Education
Code and the rules and regulations of public school employers
which establish and regulate tenure or a merit or civil service
system or which provide' for other methods of administering
employer-employee relations, so long as the rules and regulations
or other methods of the public school employer do.not conflict
with lawful collective agreements. 	.' 	.
This supersession provision is•construed in a limited fashion by the Courts andPERB.
In Sonoma County Bd, of Education v. Public Emplo)!ment Relations Board (1980) 102
Cal.App.3d. 689, the Court of Appeal discussed whether a local board of educ~tion was
required to negotiate over salaries to be paid to job classifications that were covered under the
Education Code's merit system provisions. The ·court rejected the Board of Education's
argument that the c9llective bargaining provisions of the BERA were subordinate to the
existing merit system rules, The court found that "the Legislature by clear implication
included the subject matter of compensation (or wages) within classification within the 'scope
of representation,"' thus indicating that bargaining under the BERA was required, subject to
30

limitations imposed by the Education Code. (Id., pp. 700w70 L) Although the issue before the
court involved the interac#on between the Education Code and the BERA, the court also stated
that the BERA was intended to "prevail over conflicting enactments and rules and regulations
of the public school merit or civil service system relating to the matter of wages or
compensation of its classified service." (Id., p. 702;) Similarly. PERB has held that an
employer's rules and regulations do not trump the BERA. (San Francisco. Unified School
District {2008) PERB Decisi.on No. 1948 [the "Legislature intended to requite parties to
bargain over compensation despite the existence of related merit system rules].) The Board
also noted that section.3540 should be !ead to allow IocaJ regulations that supplement the
EERA;s statutory scheme and do not conflict with the purpose of the Act, i.e., "providing a
uniform basis for recognizing the rightof public employees to join, organiza:tions_ of their own
choice, to be represented by" the organizations in their professional and employment relations
with public school employers .... " (!d., p. 11.) To the extent that there is any conflict
between the BERA and the PC Rules prohibition on negotfable subjects, the BERA trumps, and
the ' District's maintenance	. 	of rules that contradict the BERA, if any, does not warrant denying
organizational rights to Substitutes.
As previously noted,' seotion 3540.provides, in relevant part, that the BERA "shall.not
.supersede other provisions of the Education Code." In San Mateo City School Dist. v. Public
Employment Relations Bd. (1983) 33 Cal.3d 850, the Califomia Supreme Court held that, when
the Education Cpde "clearly evidences an intent to set an inflexible standard or insure
immutable provisions.i' the parties may not negotiate a collective bargaining provision that
would replace, set aside or annul the mandatory Education Code provision. (Id., pp. 864-865,
quoting Healdsburg Union High School District and Healdsburg Union School District (l 98~)
31

PERE Decision No. 132 (Healdsburg).) In other words, a subject governed by a mandatory
section of the Education Code does not fall within the scope of representation under the
EERA.12 Education Code section 45103 excludes Substitutes from classified service innonk
merit districts. In ~ontrast, Education Code section 45256 eontains no such exclusions for .
merit system districts as_is the case here. Indeed. Educatioh Code Section 45286 expressly
authorizes the personnel commission of amerit system •district to promulgate rules governing
· the employment of Substitute employees-and in fact, the District's Personn~l Commission
has ·adopted such ntles. including but not limited to PC Rule 30.200.4. There does not appear
to be a direct conflict betw~en the Education Code and the EERA given that there is no express
prohibition against the District from modifying such PC Rules to provide meaningful benefits
to Substitntes after engaging in the collective bargaining process with the exclusive
representative, subject to any limitations imposed by the Education Code. Alternatively, the
District has also not established that its ba~gal;llin~ obligations would be ex.~used based on any
immutable pi:ovisions in the Education Code pertaining to merit districts. Accordingly, the .
District ha.s not rebutted the principle enunciated in Oakland, supra, PERB Decision No. 320
. that such benefits are outside employer's co~tro1 if this petition were granted.
£, 	Supervision, E,va.luation, Disci!Jline and Layoff
'
The record provides that the District does not have a separate supervisory structure for
S.ubstitute employees. Spec~fically, the Substitutes who are filling in for their respective Unit
members are supervised by the same supervisor as the absent Unit member. As previously
discussed, the Substitutes perform the same Job functions on the day their respective Unit
12 The Board has held that there are subjects, such as layoff of classified employees,
and the causes and procedures leac\ing to disciplinary action, for which the Education Code has
e1fully occupied the field" such that collective negotiations on these subjects are prohibited.
(Healdsburg, supra, PERB Decision No. 132.)
32

me~ber classification is absent. Supervisors assess whether the Substitutes can perform the
duties. of the absent Unit member and assign them work accordingly. The District asserts an
individual serving as a Substitute may report to various other supervisors depending ·on their
assignments. However, when a Substitute fills in for the incumbent absent Unit member, the. 	.
Substitutes still retain common supervision as their absent counterparts in the Unit.
Evaluations are done by designated supervisors of Unit i.neinl:iers in accordance with the
CBA which mandates that Unit employees receive a formal evaluation annually or every other
year. While the Substitute ~mployees do not receive any fixed method of evaluation, the ·
record shows that the District does not strict_ly adhere to the frequency of evaluations required
in
. the CBA.· Thus, it appears that Unit employees do not consistently receive an evaluation at' 	'
least every year. Section 3543.2 expressly enumerates evaluation procedures as a negotiable
matter. In Center USD, supra. PERB	'
	Decision No. 2379, the Board did not find persuasive	. the
.argument that a community of interest does not exist	. between Noon Duty Aides a.nd classified
employees due to differences in evaluation standards because such topics would be subject to
labor negotiations-. Similarly, 1 find that any difference in the D.istdct's evaluation procedures
(or lack thereof) does not detr~ct from Substitutes' community of interest with Unit members,
The District has adopted disciplinary procedures that require that there be <!cause" for
tiling disciplinary action against Unit members. (.AP 4.313.1.) The District also adheres to a
system of progressive discipline. (AP 4.313.) It is unclear from the record whether such
disciplinary procedures are applicable to Substitutes; ~owever, .it should be noted the District
may' terminate a Substltute,s employment.by simply electing not to contact the individual for
future assignments. Additionally, (!nit members must be laid off in accordance with the CBA
which provides members with rights regarding notice, bumping and l'eemployment. No such
33

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

Substitute. The tumo:ver of Substitutes is higher than for employees in the Unit. There are a ·
number of Substitutes who have worked for the District in such capacity for several years.
There fa evidence in th_e .tecord to show that some Substitute employees work as many .
as 113 days during an elght month period, while others work fewer than LO days in the same
time period. The Board has not established a cutoff date for the number of days that an
employee must w~rk before being considered a "casual" employee,13 and therefore. excluded
from a,, bargaining	. 	unit. Further, this Board has refused ta adopt a standard for finding that
teachers hav,e an expectation of reemployment based on the on the numbe; of days they work
. 	.
as distinguished from other employees who work more days. (Palo.Alta USD, .,upra, PBRB
Decision ~o. 84, adopting ALJ's decision, Jl. 12.) Her~. the parties have offered no arguments
to show that the Substitutes-are "casual" employees and I cannot infer that Substitutes maintain·
such sta'tus. However, there is sufficient evidence to conclude that Substitutes have a
continued expectation of employment. Extrapolating from the evidence, it appears the District
utilized at least 1184 Substitute workdays from July 1, 2012 thtoughFebnup:y 25, 2013. As
such. Substitutes appear to be an integral part of the Districes operatio11s; witllout them, it is
doubtful that the District could manage its school operations effectively,
For the above reasons, it is found that the above group ofSubstitute classifications·
· sh~r~s a cohesive community of interest with the exfating Unit.
13 Casual employees are those who, due to their sporadic or intermittent relationship
with the employer, lack a sufficient commu:nity of interest with regular employees·to be
incltided in the regular ·t1nit. (Unit Determination for Employees of the California State
University and Colleges (1981) PERB Decision No. l 73-H, citing Mission Pak Co. (1960) 127
NLRB 1097.).
35

·B. Efficiency of Operation
The adverse impact of accreting classifications to an existing unit is typically an
argument promulgated by an employer concerned about its resources. PERB must consider the
. 	' 	.
effect of a proposed 1.mit on an employer's ability to operate efficiently. (§ 3545, subd. (a);
San Francisco Community College District (1994) PERB De~ision No. 1068) PERB balances
. 	.
any impact on efficiency with the "etnployees' right to effective representation in appropriate •
units:~ (San Diego Unified School District (1977) EBRB Decis~on No. 8.) Although the
impact of a unit detennination or modification clecision on the efficiency of a sch?ol districf,s
operations is one of the statutory criteria, which PERB is required to consider when weighing
the various factors, PERB precedent points to the community of interest as a weightier factor
than the efficiency of the employer's operations as determining the effectiveness of the
representative. (Sweetwaier, sztpra, EERB Decision No. 4; Fontana, supra, PERB Decision
No. 1623.) Indeed, in situations in which employees perform functions for more than one unit.
PERB has held that they ar~ entitled to representation in both units if necessary to effectuate.
their statutory rights to bargain collectiv~ly through a _representative of their own choosing.
(Oakland, supra, PERB Decision No. 320, p .. 11 and private~sector aiithority cited therein.)
The District's argument that additional negotiations concerning Sμbstil'!,ltes will affect
the efficiency of the District's operation is unavailing. The District acknowledges that the
disputed classifications have a utheoretioal right to representation" under the EERA; however,
the District advances numerous arguments for why the proposed addition to the Unit would be
unworkable. The District asserts that the addition of Substitutes to the existing Unit would
cause disruptions to the Districf s operation that outweigh any gains tha:r could be achieved
through collective bargaining because S~ibstitutes are not eligible for benefits, cannot acquire
36

,.'
'
seniority, and a majority of them perform work on an infrequent basis. Further, argues the
District, PSEA and the District have negotiated a CBA that is set to expire on June 30, 2016,
with limited reopeners, and the District will be burdened by additional negotiations regarding
S·ubstitutes during the life of the contract.
In Center USD, supra, PERB Decision No. 2379 1 the employer similarly accepted that
Noon-Duty Aides are entitled to collective bargaining rights, but made an inefficiency
argument against their inclusidn in the classified unit because Noon-Duty Aides do not share a
. 	.
community of interest and this would require the employer· to conduct two separate bargaining
sessions at one table. (Id., p. 12.) The Board found such argument withou{ merit given that it
was difficult to· discern the btuden imposed on the employer if thr, parties negotiated separately
or at the same table with the classified unit. (I.bid.) The Board also acknowledged that siQiilar
efficiency arguments ,vere rejected in El Monte Union. High School Di.'ltrict, supra, PBRB'
Decision No. 142, where the employer had similar concerns about.the inclusion of substitute
teachers in the same unit as regular teachers reasoning that "negotiation of a supplementary
agreement covering the petitioned for employees imposes no greater burden on the parties than
would the negotiation of a separate:agreement." (Citation omitted; Center USD, supra, PERB
Decision No. 2379, p. 12.)
As discussed above, pursuant to Oakland, supra, PERB ;Decision No. 320 and Fontana,
t:1upra1 PERB Decision No. 1623', differences in terms and co11dition.s of employment could be
negotiated. Additionally, there are no immutable provisions under the Education Code that
prevent the District from incorporating into an agreement terms and conditions of employment
that are of mutual benefit to Substitutes and unit members provided such ter~s do not conflict
with the Education Code-to which the District has not argued any conflict exists. (Berkeley
37

Unified School District (2012) PERB Decision No. 2268, p. 9,) To the extent the District
argues a conflict exists with the	. 	PC Rules, .
this does not forestall the parties from engaging in
the collective bargaining process to negotiate terms which replace, set aside, or nullify any
p·urported inflexible provisions of the external law referenced in the PC Rules established
under the Education. Code. (San Mateo City School Dist. v: Public Employment Relations Bd., .
supra, 33 Cal.3d 850,864). As previously discussed, there is no evidence that there exists
"~mutable provisions'' or an "inflexible standard" against adopting rnles that provide benefits.
and seniority rights. to Substitute employees.
The District's assertion that it will be presented with additional burdens of negotiating an
agreement prior to the June 30, 2016 expiration of the current CBA does not se.em plausible.
·The parties are always free to mutually agree to engage in the collective bargaining process
absent any reopener provisions. (Inglewood Unified School District {2012) PERB Decision
No. 2290 [each party is not _obligated to engage in collective bargaining pursuant to a zipper
clause unless there is mutual agreement to do so or a reopener clause·permits bargaining during
the life of the agreement].) To the extent tha~ this may cause additional burdens on-the District,
this arg~unent has been previousiy considered and disfavored by the Board. (See e.g., Liverm~re
Valley Joint Unified School Di.strict (1981) PERB Decision No; 165 ["The fact that negotiating
may impose a burden on the ~mployer was undoubtedly considered by the Legislature 1:iut found
not to outweigh the benefits of an overall scheme of collective negotiation."];.Antelope Valley
Community College District (1981) PERB Decision No. 168 [The Legislature found that «the
potential loss of time spent in negotiations does not outweigh the benefits of an overall scheme
of collective bargaining"].)
38

The District asserts that Substitutes filling in for Unit employees could "potentially" fill
,.
in as Substitutes for confidential classified employees at a later ~ppointment period. The
District asserts this is not administratively feasible because sporadically employing unit
members as confidential employees could compromise the District's private information
maintained by confidential employees.
~ection 3540.1, subdivision (c) defines a confidential em.pioyee as:
an employee who is required to develop or present management'
positions with respect to employer~employee relations or whose
duties normally require access to confidential information that is
used to contribute significantly to the development of
management positions.
· PERB and its predecessor, the EERB. have long recognized that a public school
employer is:
allowed a small nucleus of individuals who would assist the
employer in the development of the employer's position for the
purposes of empldyer~employee relations ... [\vhoJ would be
required to keep confidential those matters that if made public
prematurely might Jeopardize the employer's ability to negotiate
with employees from an equal posture.
(Sierra Sa'f!d.S Unified School District (1976) EERB Decision No. ~' at Pi 2. [Sierra Sands].)
. 	.
In Fremont Unified School District (1976) EERB Decision No. 6, the Board held that
employer~e1;11ployee relation; includes "atthe least~ employer~eri1ployee negotiations and the
process of employee grievances." Not all involvement in such areas, however. has been
deemed substantial enough to warrant a confidential designation. (See, e.g., Franklin-
McKinley School District (1979) PERE Decision No. 108, where a business office supervisor ·
was foU;nd not to be confidential despite having costed out negotiations proposals.) In
addition, confidential status does not turn on wheth.er the individual's functions may ·be
transferreμ to others; instead, the Board must look to what the work actually entails.
39

(San
Rafael
City High
School District (1977) EERB Decision
No.
32,
p.
4.) No evidence
was
presented here to show that any Substitutes
who
fill in for absent confidential employees ·
actually perform confidential duties, such
as
preparing mauagem~t proposals for labor
negotia1ions or processing employee grievances.
As
such,
there is insufficient evidence
to
conclude that Substitutes
actually
per.formed
or will perform the confidential duties of their
absent counterparts. Additionally,
the
District's efficiency· argument must also
fail
since
the
parties have stipulated
~t
if the unit modification petition
is
granted, Substitutes.
in
the
U?1t
must not also include
1hose
substituting in confidential positions.
14
The District contends that pursuant to section 3546,
a:;i
employer
must
deduct a "fair
sha:re
service fee" from employees in the Unit, but if Substitutes
are
added, this would affect
the District's efficiency for the following reasons:
(1)
the District
is
uncertain
whether.
it will
_be
required
to
deduct
some
fraction of
dues
from Substitute paychecks each time the Substitute
is
appointed
to
a Unit position; and
(2)
requiring fair shares
fees
of the petitioned-for
Substitutes.but not of other substitute employees, would make it difficult
for
the.District to
fill
those positions requiring dues payment
. 	.
Under the EERA, the permissible organizat.ional security arrangements are
"maintenance of membership" and
11
agency fee.',
(§
3540.1, subd. (i)(l)(2).) Under the
"maintenance of membership" arrangement, a public. school.employee may·decide whether
to
join an employee oi:ganization, but if the employee does join, he or
she must, as a condition of
continued employment, maintain
his or her membership
in
good standing
for
the duration of
. 	. 	.
. 	.
~	
-
14
The District has not presented convincing arguments (or supporting legal authority)
that would show, for example, tbat the District is ·constrained from establishing a screening
process for appointing individuals who would actually perform confidential duties to avoid
potential conflicts and
to·
ensure that the District maintains the "small nucleus" envisioned in
Sierra Sands,
{'Jtipra,
EERB Decision No. 2.
40

the labor agreement. (§ 3540.1. subd. (i)(l).) The employee may, however, tenninate his or
her obligation to the employee organization within 30 days following the expiration of the
labor agreement. (Ibid,) Under the "agency foe" arrangement, the employee, as a condition of
continued employment must either (1) join the recognized or certified employee organization,
or (2) pay a service fee to the organization that may not exceed the standard initiation fee,
periodic dues, and general a~sessmetits of the organization for either (a) the du.ration of the
labor agreement, or (b) a period of three years from the effective date of the agreement,
whichever comes first. (§ 3540.l(i)(2).)
.. Organizational security is expressly within the scope of representation under section
3543.~, subdivision (a), and thus may be subject to negotiations. The amount of the fee is
governed under section 3546, subdivision (a), which provides that, upon notice to the employer
by the exclusive representative, the amount of the fee shall be deducted by the employer from .
the wages or salary of the employees and p·aid to the employee organizat~on. Accordingly, the
amount of the fee charged by the employee organization is not negotiable because the amount
of the fee is nowhere listed as a negotiable subject and there is "no relationship of agency fees
to an enumerated subject of negotiation'." (Fresno Unified SchoQ! District (1982) PERB
Decision No. 208'.) PERE stated in one case that the employer's interest i.n n~gotiating an
agency fee is "limited to its ·willingness.to impose on its nommion employees an agency fee
requirement and, if so, whether an authorization· election is desirable," and limited to seeking
·soine provisions that ,provide the employer protection against liability in the event of a dispute
over the appropriateness of the fees withheld. (Ibid.)
. The District's concern that its operational e~ciency will be affected by not knowing
·the service foe deduction amount for Substitutes does not support denying the instant petition..
41

Any logistical aspects concerning organizational security arrangements are proper for
bargaining per section 3543.2, subdivision (a)15; while the specific fee to he deducted from the
wages or salaries of Substitute employees rhay be ascertained at PSEA's request pursuant to
section 3546, subdivision (a). However, there is no requirement that all Unit members and
Substitutes be charged the same fees. (See e.g., Los Rios College Federation of Teachers,
·AFTICIO (Barth) (1991) PERB Decision No. 882 [holding that unde~ the standards set forth in
Chicago Teachers Union v. Hudson (1968) 475 U.S. 292 (Hudson) foi the collection of agency
fees, there is no require~ent that all nonunion members must be charged the same agency
fee].) As such, fees may also be deducted based on the percentage of the Substitute's salary or
wages. (Los Rios College Federation of Teachers,, 4.FTICIO (Bart~), supra, PERE Decision
No. 882.) Because the District has not yet received P$EA's request forthe amount of service
fee to be deducted, I find that the District's efficiency argument unconvincing.
,'1'.he District also has concerns that requiring Substitutes for Unit positions t·o pay fair
shares fees while not requiring fair share fees for non•Unit employees would make it difficult
for the District to fill those positions requiring fair share fee payment. However, I discern no
·ev1dence in the record that would support the assertion that individ1.ials would be discouraged
from filling Substitute positions in the Unit.
Under section 3546, subdivision (t), the District is required to provide the home
.addresses of Unit employees to PSEA so that PSEA could comply wi\h the notification
requirements in Hudson, supra, 475 U.S. 292. The District questions whether th~ District
would need to provide PSEA with the names and addresses for Substitutes who work
15 Any District operational burdens associated with negotiations concerning
organizational security is not sufficient justification for finding the proposed unit
inappropriate. (Livermore Valley Joint Unified School District, supra, PERE Decision
No. 165.)
42

temporarily for the District in such classification. The District also ass~rts it.will be unable to
provide the hotne addresses in advance \mtil the Substitute accepts an assignme11t in a
petitioned-for position. Under section 3546, subdivision (f), the D~strict is required to provide
the names and addresses of each member of the Unit, including those· who l1ave accepted a
temporary Substitute assignment. There is no evidence that this places any burden o.n the
District sufficient to outweigh the representational rights of Substitutes.15
The District argues that the addition of the Substitutes to the Unit presents a number of
administrative impracticalities and implicates legal dilemmas affec~ng PSEA. In particular,
the District questions whether PSEA will be required to send notic~s under section 3546,
subdivision (f), to each individual who Substitutes in· a petitioned-for position, even ifhe or·
she only Subs~tutes for one work day and never rem:ns to District employment. These
·concerns are not relevant for d~termining whether the proposed unit is appropriate. In
San Ramon Valley Unified School District (1989) PERB Decision No. 751, the Board held that
the District is not liable for the exclusive representative's alleged failure to comply.with the
dictates of the United States Supreme Court's decision in Hudson, supra, 475 U.S. 292. Thus,
there is no affirmative duty upon the District to police PSEA's compliance with the notice
requirements	. 	set. forth in Hudson. (San Ramon Valley Unified School District, supra, PERB
Decision No. 751, p. 2.)
16 There is nothing precluding the parties from mutually agreeing to update· their
records to reflect which employees or individuals actually belong i.tr the PSEA unit. This can
be negotiated into language as part of the organizational security provision. Additionally, it is
not unusual for the organizational security provision to include language requiring the
exclusive representative to illdemni:fy the employer from any lawsuits or claims arising out of
the organizational security provision. (Sweetwater Union Hlgh School Distn·ct (2001) PERB
Depision No. 1417; section 3546, subd (e).)
43

Simil~ly, the District questions whether PSEA could comply with its legal obligations
to its iμembers under Section 3546,5 ·which rel1uires unions to make available financial records
to its members: For example, the District questions whether any Substitute can petition to,
view PSEA's financial records after the conclusion of their Substitute assignment to aPSEA
position. Section 3546.5 specifically provides: 'To the event of failure of compliance with this. 	. 	'
section, any employee within the organization may petition the board for an order compelling
such compliance, or the board may issue such compliance order on its motion." (Emphasis
added.) Viewed in this context, there is no independent af:finnative duty upon the employer
(here, pl\blic school employer) to ensure the exclusive representative complies with its legal
obligations to disclose financial reports to employees under section 3546.5. Rather, it is the
Board that must first determine if a union•s actions are violative of the EERA. Further. only
affected employees have standing to mo~on this Board for alleged noncompliance with sectlon
3546.5. Accordingly, there is no evidence to discern that the District would be burdened by
potential liability to ensure the adeq_uacy of PSEA's proc~dures.
. The District asserts that if the instant petition is granted, it would be unclear howPSEA
would ha:ve its Substitute members vote on contract tenns that do not.affect them and given
1hat the identity of the Substitute positions change on a day~to--day basis. The District also
points out that it remains "unspecified how Substitutes fliling :in for absent PSEA unit
members will be pe11nitted	'
	to exercise their right to vote on PSEA matters.,. This argument,
, 	'
again, is not relevant.for making a unit detennination in that it has no impact on the District's
operating efficiency. PBRB 's role in this proceeding is not to evaluate. whether PSEA will be
able to negotiate favorable tenns and conditions of employment on behalf of its members who
may potenti,ally have·different interests. (Santa Ana Unified School District (20 l 0) PERB
44

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

At the time the unit modification petition was filed, there were incuru.bents in the
following Substitute classifications: Office Assistant II. Library Media Technician; LAN
Administrator; Campus Security Specialist; Health Services Technician; Program Aide
ESS/ASES; Lead Middle School ASES Assistant; Athletic Trainer; and Instructional .
Assistants. Comparing the cotntnun!ty of interest factors with the above Substitute
classifications	. 	and those .
in the Unit, I find that both	. 	groups share mutual interests 	numerous	, 	in
areas, including: job duties, interaction arid interchange with other employees, qualifications,
discipline, training; supervision, wages, and work hours.·
Additionally, the District has not evidenced meritable concerns thatthe proposed.
accretion: _of Substitutes to the Unit would imp\;lde the efficiency of its operations .. Finally, no
evidence was offered regarding established practices at the District in the context of
negotiating with these employees, and thus, this factor plays no part in this Proposed Decision.
PROPOSED ORDER
Based on the findings of fact, conclusions of law and the entire record herein, PSEA' s
unit modification petition is GRANTED, in part. It is hereby ORDERED that the following
Substitute classifications be placed in the Office/Technical and Paraprofessional Unit: Office
Assistant II, Library Media Technician; LAN Administrator; Campus Security Specialist;
Heahh Services Technician; Pro1,rram Aide ESS/ ASES; Lead Middle School ASES Assistant;
Athletic Trainer; :md Instruetional Assistant.
RIGHT OF APPEAL
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party :files a statement of exceptions with the Public
Employment Relations Board (PERB or Boar_d) itself within 20 days of service of this Decision. The ·
Board's address is:
.
46 ·

Public Employment Relations Board
• Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327~7960
B~FILE: PERBe-file.Appeals@perb.oa.gov
In accordance with PERB regulations, the statement of exceptions should identify by page
citation cir exhibit number the portions of the record, if any, relied upon for such exceptions. (Cal.
Code Regs., tit. 8, § 32300.)
A document i.s considered "filed" when actually received during a regular PERB business
day. (Cal. Code Regs,, tit. 8, §§ 32135,, subd. (a) and 32130; see also Oov. Code.§ 11020, subd. (a).)
A document is also consider(ld "filed"..wben received by facsimile transmission before 'the close of
business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close of business, which meets the requirQments ofPBRB Regulation 32135; subdivision (d),
provided the filing party also places.the original, together with the required number of copies ~nd
proofofservice, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also
Cat Code Regs., tit. 8, §§ 32090, 32091 and 32130.)
· 	Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to tlrls proceeding. Proof of service shall accompany each copy served on a
party or filed with.the Board itself. (See Cal Code Regs., tit. 8, §§ 32300, 32305, 32140, and
32135, subd. (c),)
47