Belmont Elementary School District * * * OVERRULED IN PART by Peralta Community College District (1978) PERB Decision No. 77, pp. 13-15 * * * (PERB 0007E)

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

OCR transcription for search; preserved printed pages are authoritative

* * * OVERRULED IN PART by Peralta Community College District
(1978) PERB Decision No. 77, pp. 13-15 * * *

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

BELMONT ELEMENTARY SCHOOL DISTRICT,
Employer
Case No. SF-R-286

and
BELMONT FACULTY ASSOCIATION,
Employee Organization

EERB Decision No. 7

December 30, 1976

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Appearances: Brown and Conradi, by William E. Brown, Attorney,
for Belmont Elementary School District; Brundage, Beeson, Tayer
and Kovich, by Duane B. Beeson, Attorney, for Belmont Faculty
Association.

Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION

Acting under Government Code Section 3544, the Belmont
Faculty Association (Association) filed a request for recognition
with the Belmont Elementary School District, seeking
representation of employees in the following negotiating unit:

All certificated employees in the Belmont School District,
excluding day-to-day substitutes, management, supervisory
and confidential personnel.

Subsequently, the school district took the position that the
negotiating unit proposed by the Association was not appropriate
within the meaning of Government Code Section 3545, in that it
did not exclude long-term substitutes, temporary teachers, part-
time teachers teaching less than 51 percent of a full-time
assignment, and summer school teacher. A hearing on the unit
issues was conducted by a Board Hearing Officer.

In support of its position, the school district contends
that: (1) those employees the school district would exclude
from the negotiating unit "do not share a community of interest
in conditions of employment with regular employees;" (2) part-
time teachers who teach less than 51 percent of a full-time
assignment should be excluded from the unit because they are
casual employees; (3) the Association produced no evidence that

it had organized the employees it seeks to include in the unit;
(4) the Association offered no evidence that under the Winton
Acton the Association made an attempt to represent substitute,
part-time or temporary teachers; (5) evidence of an attempt by
the Certificated Employees Council (CEC) to represent summber
school teachers is unclear on the time the CEC made a proposal to
the school district, and the proposal was later abandoned by the
CEC.
On all classifications in issue, with the exception of summer
school teachers, the Association relies solely upon a community-
of-interest argument to support its position in favor of
including the disputed classes in the unit. 	In addition to a
community-of-interest argument in support of its position to
include summer school teachers, the Association contends that "on
more than one occasion" it made efforts to meet and confer with
the district on summer school teachers. 	Both parties agree to
the exclusive of day-to-day substitutes.
In determining the appropriateness of a negotiating unit, we
are required to consider the following standard contained in
Government Code Section 3545;
(a) 	In each case where the appropriateness of the unit is
an issue, the board shall decide the question on the
basis of the community of interest between and among
the employees and their established practices
including, among other things, the extent to which
such employees belong to the same employee
organiza- tion, and the effect of the size of the unit on the
efficient operation of the school district.
(b) 	In all cases: 	(1) A 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, except
management employees, supervisory employees, and
confidential employees; (2) A negotiating unit of
supervisory employees shall not be represented by the
same employee organization as employees whom the
supervisory employees supervise; (3) Classified
employees and certificated employees shall not be
included in the same negotiating unit.
No party argues that Government Code Section 3545(b)(1)
requires the inclusion of all classroom teachers in a single unit
without consideration of community-of-interest and other criteria
contained in Section 3545(a) of the Act. 	Therefore, not having
been briefed or argued, that question is not appropriately before
us for decision in this case.1
1The Association has done more thatn waive argument in favor
of literally interpreting Government Code Section 3545(b)(1), as

The record contains no evidence on the extent-of-organization
criterion required by Government Code Section 3545(a). 	And since
neither party seeks more than a single unit, no one in this cse
has argued that the efficiency of operation in the school
district would be impaired if the unit sought by the other party
prevailed as th appropriate unt. 	In Sweetwater Union High School
District,2 we decided that "little weight" would be given to
established practices predating this Act. 	For all of these
reasons, the decision in this case will be based on the
community-of-interest standard provided in Government Code
Section 3545(a).
The Belmont Elementary School District has an average daily
attendance of approximately 3200 students in kindergarten through
the eighth grade. 	There are seven school sites, six elementary
schools and one intermediate school. 	In the 1975-76 school year
the district employed 130 to 140 regular full-time teachers. 	In
addition, there were 150 to 170 names on the substitute list, one
temporary teacher, 30 to 50 summer school teachers; and two part-
time certificated employees.
Part-time Teachers Teaching Less
Than 51 Percent of Full-time Assignment
Part-time teachers are employed on a yearly basis to teach
less than a full-time assignment. 	During the 1975-76 school
year, the district had one part-time learing-disability teacher
and one part-time nurse. 	During the last few years, the maximum
number of part-time teachers hired by the district was three.
In support of its position that part-time teachers less than
51 percent of a full-time assignment should be excluded from the
unit as casual employees, the district cites the NLRB's decision
in the New York University3 case. 	There, the NLRB held that
part-time faculty members of the university could not be included
it relates to "all... classroom teachers." 	The Association brief
urges a nonliteral interpretation of that language, consistent
with the desire of all parties in this case to exclude day-to-day
substitutes from the negotiating unit.
In consent argeements, we have approved mutually requested
negotiating units which do not include in the same unit all of
the classroom teachers in a district. 	If parties may properly so
agree with our approval, in the course of avoiding a hearing on
any disputed issue, they may also properly so agree when other
disputed issues require a hearing.
2EERB Decision No. 4 (November 23, 1976).
3205 NLRB 4, 83 LRRM 1549 (1973).

in a bargaining unit with full-time faculty members. 	The NLRB
found differences in the employment conditions of the two groups.
Full-time and part-time teachers differed in respect to
compensation, fringe benefits, eligibility for tenure, teaching
load and the level of responsibility beyond teaching and grading.
The NLRB reasoned that the grouping of full-time and part-time
teachers in the same unit would impede collective bargaining.
In New York University, the NLRB was not confronted with and
did not rule on the issue of whether part-time teachers were
casual employees. 	However, in this case the issue has been
raised and the answer is clear. 	Employees who work less than
full time but who, like the part-time teachers in this case, work
regularly, are not casual employees.4
Apart from the casual employee issue and in respect to the
community of interest criteria, we find significant distinctions
between this case and the NLRB's decision in New York University.
Here, unlike New York University, all part-time teachers receive
the same salary and benefits, on a pro rata basis, as do the
regular teachers; and because their employment is on a regular
basis, part-time teachers emjoy the same reemployment rights as
do the regular teachers; part-time teachers are required to
perform duties substantially similar to those of regular
teachers. 	Additionally, we note that New York University is a
case involving higher education, where conditions of employment
often differ greatly from those of an elementary school district.
For the above reasons, there is a community of interest
between regular and part-time teachers; part-time teachers are
therefore included in the unit with regular teachers.
Temporary Teachers
Temporary teachers are hired under contract to work regularly
for a specified period of time designated in their contract,
usually not less than a semester. 	During the 1975-76 school
year, the district employed one temporary sixth-grade teacher for
one semester. 	During the last few years, the number of temporary
teachers hired has varied from none to three. 	According to the
Superintendent of the school district, temporary teachers are not
hired to replaced a specific regular teacher. 	Rather, temporary
teachers are viewed as part of the regular faculty pool.
Temporary teachers and regular teachers are paid on the basis of
the same salary schedule. 	They receive the same fringe benefits
as regular teachers. 	Education Code Section 13336.5 provides
that they are eligible for reemployment rights after serving as a
temporary teacher for a specified time and also provides that
their service as a temporary teacher may be counted toward
completion of the probationary period leading to tenured status.
4See Miller Bros., Inc. 210 NLRB 127, 86 LRRM 1026 (1974);
The Developing Labor Law, p. 210 (C. Morris ed. 1971).

Like regular teachers, district policy is that temporary
teachers are required to attend faculty meetings and prepared
assignments and lesson plans. 	These similarities with the
working conditions of regular teachers give temporary teachers a
community of interest with regular teachers. 	Therefore, they
shall be included in the unit with regular teachers.
Substitute Teachers
Education Code Section 13336 defines a substitute teacher as
one employed in the place of a regularly employed teacer who is
absent. 	That section speaks only in terms of substitute
teachers. 	It makes no distinction between "long-term
substitutes" and "day-to-day substitutes." 	The only distinction
the district makes between the two categories is that after the
twentieth consecutive day, the long-term substitute si
retroactively paid an increase from $30 per day to $34 per day.
Like the day-to-day substitutes whose exclusion from the unit is
agreed to by both parties and unlike regular teachers, long-term
substitute teachers have no expectancy of future employment.
Under Education Code Section 13336.5, they do not accrue tenure
while serving as long-term substitutes. 	In contrast, Education
Code Section 13304 et seq. provides that teachers are eligible
for tenure and accrue time towards eligibility for tenure while
serving as regular teachers. 	Unlike regular teachers, long-term
substitutes receive no sick leave or other fringe benefits; they
have no contract of employment, and there is no district policy
that they attend faculty meetings.
On the basis of these differences between the employment
conditions of regular teachers and those of long-term
substitutes, the community of interest required to include long-
term substitutes in the unit with regular teachers is lacking;
they are therefore excluded from the unit of regular teachers.
Summer School Teachers
Summer school teachers are hired by the district to teach a
five-week summer school program. 	The district hires
approximately 30 to 35 summer school teachers each year.
Approximately 80 percent of the summer school teachers are
employed from the regular pool of district teachers.
Approximately 80 percent of the classes taught in summer school
are specifically designed for summer school and have no
counterpart in the regular cirriculum.
Summer school teachers are hired on a one-summer basis.
Thus, a summer school teacher enjoys no expectation of future
employment as a summer school teacher. 	Education Code Section
13332 provides that summer employment does not count toward
eligibility or attainment of permanent status with a school
district. 	In addition, summer school teacher are paid on a
separate pay schedule which bears no relationships to the regular
compensation schedule in effect during the regular school year.

They are paid according to the same payroll account used for
substitute teachers and others whom the district believes will
have a short term relationship with the school district. 	Summer
school teachers are not entitled to any district fringe benefits
for their service as summer school teachers.
For the above reasons, we find laacking a community of
interest between summer school and regular teachers; therefore
summer school teachers shall be excluded from the unit of regular
teachers.
ORDER
The Educational Employment Relations Board directs that:
1. 	The following unit is appropriate for the purpose of
meeting and negotiating providing an employee organization
becomes the exclusive representative:
All certificated employees, including temporary teachers
and part-time teachers, but excluding summer school teachers,
substitute teachers, management, supervisory and confidential
employees.
2. 	The employee organization has the 10 workday posting
period of the Notice of Decision to demonstrate to the Regional
Director at least 30 percent support in the above unit. 	At the
end of the posting period, if the employee organization qualifies
for the ballot and the employer has not granted voluntary
recognition, the Regional Director shall conduct an election.
Reginald Alleyne, Chairman
Dated: 	December 30, 1976
Raymond J. Gonzales, Member, in concurrence.
I agree with the discussion and conclusions of the preceding
opinion on all issues presented in this case, with two
exceptions. 	I would address the question, avoided in the
opinion, of whether substitutes, part-time, temporary and summer
school teachers are "classroom teachers" within the meaning of
Government Code Section 3545(b)(1). 	Secondly, I will comment
upon the weight in Board accords evidence on established
practices predating the Act. 	The issue regarding "classroom
teachers" is first addressed.
Because the parties do not argue that Government Code Section
3545(b)(1) requires the inclusion of all "classroom teachers" in
a single unit, it is concluded in the preceding opinion that the
question is not properly presented to the Board for decision. 	I
disagree.

Section 3545(b)(1) states:
In all cases: 	(1) A negotiating unit that includes classroom
teachers shall not be appropriate unless it as least includes
all of the classroom teachers employed by the public school
employer, except management employees, supervisory employees,
and confidential employees.
This statute requires the Board to decide who is a "classroom
teacher" in all cases where the issue is logically presented.
The statute sets forth a mandate that binds the parties and the
Board and does not allow a waiver of the question of whether an
employee is a "classroom teacher" on the mere basis that the
parties fail to argue the issue.
Civil Code Section 3513 provides:
Anyone may waive the advantage of the law intended solely for
his benefit. 	But a law established for a public reason
cannot be contravened by a private agreement.
The cases relating to this section indicate that the term
"private agreement" includes an attempted waiver of a law
established for a public reason. 	The established rule is that
when a statute fixes a definite rule of action upon a public
official for the beneift of the general public, neither an
individual nor the public official may escape the rule by means
of a waiver because the right is public rather than private.5 A
law is established "for a public reason" if it has been enacted
for the protection of the public generally in that its tendency
is to promote the welfare of the general public rather than a
small percentage of citizens.6
It is my opinion that Section 3545(b)(1) is a section that
has been established "for a public reason" because the general
public has an interest in the proper determination of negotiating
units according to the standards specified by the legislature.
The legislature did not simply establish a private right, but a
standard to be applied "in all cases." 	The parties and the Board
cannot waive consideration of whether the employees in this case
are "classroom teachers" just as they cannot preclude
consideration of the unit determination criteria enumerated in
Section 3545(a).
5 Kline v. San Francisco Unified School District (1940) 40
Cal. App. 2d 174; Western Surgical Supply Co. v. Affleck (1952)
110 Cal. App. 2d 388. 	See also the cases cited in notes 10 and
29 following Civil Code section 3513, Deerings California Codes.
6 Benane v. International Harvester Co. (1956) 142 Cal.
App. 2d Supp 874.

I believe that the legislature limited the language
"classroom teachers' only to the regular full-time probationary
and permanent teachers employed by a district rather than to the
variety of types of employees who might literally be described as
classroom teachers. 	This conclusion is based upon my
understanding that the legislature intended that Section
3545(b)(1) should prevent the fragmentation of negotiating units
by precluding teachers from forming a unit smaller than a
district-wide unit, either on a school-by-school or departmental
basis (e.g., English department unit, physical education unit).
The language of Section 3545(b)(1) speaks to the establishment of
a district-wide unit by requiring that a negotiating unit
including classroom teachers must as least include "all of the
classroom teachers employed by the public school employer."
In focusing on the establishment of a district-wide unit and
the purpose of limiting the fragmentation of units, the
legislature limited the language "classroom teachers" to only the
regular full-time probationary and permanent teachers since they
are the core of the certificated staff of the district. 	The
issue of the exclusion or inclusion in the unit of the variety of
other certificated employees who are part of the educational
program did not present itself in this context. 	Thus, while
substitutes, part-time, temporary and summer school teachers are
classroom teachers in a literal sense, they are not "classroom
teachers" within the meaning of Section 3545(b)(1) because they
are not regular full-time probationary or permanent teachers.
The definition of "classroom teachers" is important because
Section 3545(b)(1) precludes our application of the unit
determination criteria set forth in Section 3545(a) to any unit
which includes "classroom teachers" must include "all of teh
classroom teachers." 	It is true that Section 3545(a) requires
the Board to consider the community of interest between and among
the employees, their established practices and the efficient
operation of the school district "in each case where the
appropriateness of the unit is an issue." 	But the
appropriateness of the unit, beyond the question of whether all
clasroom teachers are included in the unit, is not an issue in
the case of a unit that includes "classroom teaachers" because
Section 3545(b)(1) specifically provides that such a unit 'shall
not be appropriate unless it at least includes all of the
classroom teachers..." The unit is appropriate if the unit
includes all classroom teachers. 	And it is not appropriate if it
does not.
Under the narrow definition of "classroom teachers," Section
3545(b)(1) is a sensible provision because there will be no issue
regarding the appropriateness of the unit that includes all
classroom teachers in that all of the regular full-time
probationary and permanent teachers in a district certainly share
a community of interest and a single unit of such employees will
not burden the efficient operation of the employer. 	Thus the
inability of the Board to consider the Section 3545(a) criteria

is not harmful to an appropriate unit determination. 	Where the
issue in a case involves the appropriateness of a unit including
certificated employees other than regular full-time probationary
and permanent employees, the Board will consider the criteria set
forth in Section 3545(a).
The narrow definition of "classroom teacher" is further
supported by the logic that an absurd result would follow a
literal interpretation of the language. 	A literal interpretation
would require the inclusion in the unit of even the most casual
employee who spends any amount of time teaching in a classroom
regardless of the absence of a community of interest of the
employee with other members of the unit. 	It is probable that
employees with greatly disparate or opposing interests would be
forced into the same unit. 	This result could not have been
contemplated by the legislature because it would undermine the
smooth operation of the collective negotiations process. 	The
community of interest and other unit determination criteria have
developed over time precisely because they are useful in
determining reasonable, efficient and effective negotiating units
which serve to enhance the collective negotiations relationship
between the employer and employee organization. 	A mandated
inappropriate unit whic ignores these criteria certainly was not
the goal of the legislature. 	Therefore, the legislature must
have used the language "classroom teachers" in only the narrow
sense of regular full-time probationary and permanent teachers.
Thus, with regard to the substitute, part-time, temporary and
summer school teachers, the Board is free to look to the
community of interest, established practices and efficiency of
operation criteria in determining whether or not they are
appropriately included in the same unit as the regular full-time
teachers. 	These criteria have been addressed in the preceding
opinion.
I agree with the discussion of the Section 3545(a) criteria
in the opinion except the statement: 	"In Sweetwater Union High
School, we decided that little weight would be given to
established practices predating this Act." 	Such a board holding
was not made in that case. 	Instead, it was stated only that
"...in this case we give little weight to 'established
practices..'" (emphasis added). 	It is my intention to be open to
consider in each case the facts relating to the established
practices of the employees whether or not such practices predate
the Act.
In this case the evidence on established practices showed
that under the Winton Act the Association did not make any
proposals regarding substitute teachers, did meet and confer
regarding part-time employees, and did make a proposal in the
1974/75 school year regarding summer school employees wyich was
discussed and rejected by the district. 	These facts, however, do
not cause me to alter my conclusions whihc are based upon the
entire record.

Except for the statement on "established practices" and the
failure to address the "classroom teachers" issue, I agree with
the discussion and conclusion of the preceding opinion.
Raymond J. Gonzales, Member
Jerilou H. Cossack, Member, concurring in part, dissenting in
part.
I concur in part and dissent in part with the results reached
by the majority. 	As I will more fully explicate, I would include
both the classifications of summer school teachers and long-term
substitutes in the unit. 	I share completely the viewpoint
expressedn by Dr. Gonzales in his concurring opinion, except as
it relates to summer school and long-term substitute teachers,
and join him in the rationale as the majority opinion of the
Board.
The majority exclusion of the classifications of summer
school and long-term substitute teachers from the negotiating
unit demonstrates a total disregard of the fundamental role unit
determination plays in the implementation of the declared
purposes of SB 160.
Certain provisions of the Act establish the obligation of the
employer and the exclusive representative to negotiate
collectively. 	This obligation extends only to the matters within
the scope of representation of the employees in the unit
appropriate for such purposes.
Section 3540 if the Act declares it to be the purposes of
this Act"...to promote the improvement of personnel management
and employer-employee relations...by providing a uniform basis
for recognizing the right to public school employees...to select
one employee organization as the exclusive representative of the
employee in an appropriate unit,..." To effectuate this policy
Sections 3543.5(c) and 3543.6(c) of the Act impose a mutual
obligation on an employer and an employee organization
respectively to meet and negotiate in good faith. 	Section
3540.1(h) of the Act in turn defines meeting and negotiating as
"...meeting, conferring, negotiating, and discussing by the
exclusive representative and the public school employer in a good
faith effort to reach agreement on matters within the scope of
representation..." Section 3540.1(e) defines exclusive
representative as"...the employee organization recognized or
certified as the exclusive negotiating representative of...
employees in an appropriate unit..." Finally, Section 3543.2 of
the Act defines those matters within the scope of representation.

A unit is comprised of groupings of certain job
classifications. 	In the normal course of events there are
several persons in each job classification. 	Some individuals who
occupy these job classifications, for one reason or another, may
have only a tenuous employment relationship with the district
while others may have a substantial employment relationship.
While a classification may be included in the negotiating unit,
based on application of community of interest, established
practices of employees and the efficient operation of the school
district, certain individuals who sporadically occupy that
classification may be ineligible to vote in an election because
their employment relationship is so incidential that they have no
legitimate concern about those matters defined in Section 3543.2
of the Act as within the schop of representation. 	The majority
in the instant case fails to distinguish between the exclusion of
an entire classification, a unit determination, as contrasted
with the exclusion of certain persons within a classification, an
eligibility determination.
Since the unit determination is the cornerstone of the
obligation to negotiate and further determines the parameters of
this obligation, the majority's exclusion of the classifications
of summer school and long-term substitute teachers from the
negotiating unit in this case forecloses any obligation of the
parties, in the event the Association is selected as th exclusive
representative, to negotiate about the application of those
matters within the scope of representation to any syummer school
or long-term substitute teachers. 	I find this result repugnant
to the declared purpose of the Act, particularly since I find no
basis for concluding that all summer and long-term substitute
teachers are not employees within the meaning of the Act. 	As
employees they have the right to organize and the consequent
right to negotiate with their employer over those matters within
the scope of representation.
Summer School Teachers
I believe that the classification of summer school teacher
shares a substantial community of interest with those
certificated persons included in the unit, particularly since 80
percent of the district's summer school teachers are regular
district teachers. 	They have the same qualification, training
and skills to teach a summer school course as do those who teach
during the regular school year. 	They are employed for a set
period of time on a contract basis, as are others included in the
unit. 	The record reflects two discrete types of persons employed
by the district in the classification of summern school teachers:
the district's regular teachers and persons whose sole
employment relationship with the district is as summer school
teachers. 	Thus, although there is no formal policy regarding
first preference for summer school employment, the fact that 80
percent of the district's summer school teachers are regular
teachers indicates that the districtobviously first looks to its
regular teachers who are experienced in the district and who have

proven their capacity to perform the job of teaching children.
While the record is largely silent regarding th re-employment
patterns of the remaining 20 percent of summer school teachers,
as least on of th approximately seven persons who are not regular
district teachers testified that she had taught summer school two
consecutive years.
Clearly the summer school program is an adjunct of the
regular school curriculum. 	In fact, some of the courses taught
are exactly the same as those offered in the normal school year.
The central fact is that all the faculty, both during the
regular school year and during summer school, are teachers. 	As
such, they are professionals who share the common goal of
educating children. 	Summer school teachers are expected, as are
regular teachers during the normal school year, to be at school
during the full day. 	Moreover, while the salary schedule for
summer school teachers is different than that of regular
teachers, it does contain three ranges based on years of teaching
experience. 	It has historically been determined by"...discussion
between teachers and administrators..." even though the extent to
which summer school salaries were the subject of the meet and
confer process of the Winton Act is unclear.
For the reasons set forth above, I would include the
classification of summer school teacher in the negotiating unit.
Since regular teachers are eligible to vote as regular teachers,
the remaining question raised is the voting eligibility of those
persons whose sole relationship with the district is as summer
school teachers. 	As I have elsewhere indicated, the record is
largely silent regarding the re-employment patterns of these
persons. 	The record is also silent regarding the time that
summer school appointments are made by the district. 	In these
circumstances, it is impossible to determine whether some or all
of those persons whose sole relationship with the school district
is as summer school teachers possess either a sufficient
expectation of re-employment or a substantial continuing interest
in those matters within the scope of representation to entitle
them to be eligible to vote in the election. 	Accordingly, I make
no finding with respect to these persons but rather would permit
them to vote subject to challenge, absent agreement of the
parties on their eligibility.
Long-term Substitutes
Turning to the issue of long-term substitutes, the only
substitute classification in dispute in this case, I believe the
majority has failed to distinguish between those persons whose
employment relationship with the district is so tenuous that they
have no legitimate concern about matters within the scope of
representation and those persons whose employment relationship
with the district is substantial. 	I believe that some of the
long-term substitutes share a sufficient commnity of interest
with other certificated persons to warrant their inclusion in the

negotiating unit. 	The majority relies on the assertion that as a
class of people, long-term substitutes are excluded from certain
fringe benefits, salary benefits and tenure rights. 	However,
there are several sections of the Education Code which bestow
certain of these benefits upon other than full-time certification
persons:
Section 13963 entitles substitutes who work 100 days
or more during a school year to retirement benefits. 	Section
13964.1 permits substitutes working less than 100 days in a
school year to elect membership in the retirement system at
any time while employed in a substitute or part-time
capacity.
Section 13336.5 grants certain re-employment rights to
substitute or temporary persons who service during one school
year for at least 75 percent of the school year and counts
such service as a complete school year as a probationary
employee.
Sections 13520 and 13520.1 provide that persons filling
certificated positions for a semester or more shall be paid
on a pro-rata basis the same as those certificated persons
who work a full year.
Section 13468 entitles other than full-time persons to
pro-rata sick leave benefits.
While the school district may fail to extend certain fringe
benefits to long-term substitutes, nothing in the Education Code
precludes the district from doing so. 	The lack of fringe
benefits does not demonstrate a separate community of interest
since they may properly be the subject of collective
negotiations. 	Thus the mutuality of interest between some long-
term classroom substitutes and regular full-time teachers rests
fundamentally on their virtually identical job functions. 	Long-
term substitutes teach the same subjects in the same manner as
regular full-time teachers. 	They perform similar supervision of
students and must turn in lesson plans just as regular teachers.
They work the same hours and are supervised by the same persons
as other teachers. 	They have access to the same facilities as
other teachers and have similar contacts with other school
employees. 	At any given point in time a long-term substitute may
have to work with students in conjunction with other members of
the school staff such as counselors, deans, psychologists,
principals, or other teachers. 	The work these long-term
substitutes perform is therefore an integral element in the on-
going education process. 	While there may be differences in
salary, benefits and permanency of the long-term substitutes, I
believe these differences are minimal in contrast to the ommon
integrated nature of their employment relationship.
I believe that those substitutes who have a substantial and
continuing employment relationship are entitled to representation

within the unit of other certificated employees. 	I also favor
including day-to-day substitutes who have similar substantial
relationships. 	Although, in this case, the parties have
stipulated day-to-day substitutes should be excluded from the
unit, I would in future cases favor application of a formula
whereby any substitute working a substantial portion of the
school year would be included within the unit enabling them to
bargain with the employer as a member of a larger certificated
unit.
Jerilou H. Cossack, Member