Petaluma City Elementary and High School Districts (PERB 0009E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

PETALUMA CITY ELEMENTARY AND
HIGH SCHOOL DISTRICTS,
Employer

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and
) Case Nos. SF-R-31
ASSOCIATION OF PETALUMA AREA SF-R-265
TEACHERS, CTA/NEA,
Employee Organization EERB Decision No. 9
and
PETALUMA FEDERATION OF TEACHERS,
LOCAL 1881, CFT/AFT,

Employee Organization

February 22, 1977

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Appearances: Richard V. Godino, Attorney, for Petaluma City
Elementary and High School Districts; Sharrel Wyatt, Attorney,
for Association of Petaluma Area Teachers, CTA/NEA; David
Rosenfeld, Attorney, (Van Bourg, Allen, Weinberg and Roger) for
Petaluma Federation of Teachers, Local 1881, CFT/AFT.

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

In petitions submitted April 1, 1976, the Association of
Petaluma Area Teachers, CTA/NEA (APAT) and the Petaluma
Federation of Teachers, Local 189, (PFT) sought to represent
certain units of certificated employees of the Petaluma City
Elementary and High School Districts. Specifically, APAT sought
to represent all certificated employees except persons working
regularly less than three hours each day, and persons designated
as management. PFT's petition included all adult education
teachers within its proposed unit of certificated personnel,
excluding only management-designated positions and day-to-day
substitutes. The governing board’ of both Petaluma districts
subsequently filed a petition pursuant to Government Code Section
3544.5* claiming as an appropriate unit the following:

* The employer is a common administration district having

one Superintendent and one Board of Education.
* References to Government Code Section 3540 et seq. are
hereinafter noted as the Educational Employment Relations Act or

All certificated employees (except for casual employees,
substitutes, summer school teachers, home teachers, con-
sultants, and emergency employees) excluding those named
by the governing board as management or confidential
employees.
As a result of the foregoing, on August 3, 1976, a
representation hearing was conducted by a hearing officer of the
Educational Employment Relations Board. 	At the hearing the
parties stipulated to the exclusion of day-to-day substitutes and
the inclusionof temporary teahers as the term is used in
Education Code Section 13337, 13337.3, 13337.6. 	Additionally,
APAT clarified its position regarding exclusion of certificated
employees, noting that it sought to exclude adult education
teachers.
ISSUES
The parties dispute the status of summer school teachers,
long-term substitute teachers, home teachers, and adult education
teachers. 	In this regard, a two-fold analysis is presented.
First, this Board must determine whether or not these employees
are "classroom teachers" within the meaning of Government Code
Section 3545(b)(1) and, therefore, necessarily included within
the unit of other certificated personnel not in dispute. 	And
second, if these teahers are not classroom teachers within the
meaning of that section, do the criteria set forth in Government
Code Section 3545(a) nevertheless warrant their inclusion in the
negotiating unit. 	Both questions must be answered in the
negative for all disputed employees for the reasons set forth in
the following discussion.
DISCUSSION
In the Belmont Elementary School District3 decision, the
Board found it necessary to address to issue of "who is a
classroom teacher in all cases where the issue is logically
presented." 	Consequently, the Board agreed that the definition
of a classroom teacher for the purposes of the EERA is limited
"only to the regular full-time probationary and permanent
teachers empeloyed by the district...." 	Accordingly, with regard
to disputed status in this case of summer school teachers, long-
term substitute teachers, adult education teachers, and home
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
stipulated unit.
the EERA.
3 EERB Decision No. 	7, December 30, 1976.

Summer School Teachers
As in Belmont, supra, we decide that summer school teachers
shall be excluded from the unit of regular teachers. 	The
evidence in this case on established practices in regard to the
summer school teachers was minimal, and no party presented andy
evidence on the matter of efficiency of operation. 	Hence, the
community of interest criterion is the basis for our conclusion
that the summer school teachers should be excluded from the unit.
In contrast to the regular classroom teachers, summer school
teachers are not offered a written contract of employment. 	They
are paid on a weekly basis and according to a different salary
schedule than are the regular teachers. 	Summer school positions
are dependent on sufficient student signups. 	Additionally, the
summer school program is not a manadory program.4 Teachers in
the summer school, unlike regular teachers, do not receive
tenture nor do they receive any gaurantee of reemployment.5 With
the exception of a sick leave benefit, which is based on a
different formula than that of regular teachers, summer school
teachers do not receive any of the other fringe benefits
aaccorded regular teachers. 	And finally, summer school teachers
are not evaluated under prescribed method as are regular
teachers. 	Therefore, we exclude summer school teachers from the
unit of regular classroom teachers.
Long-Term Substitutes
We likewise find that the facts in this case, as in Belmont,
supra, warrant the exclusion of long-term substitutes from the
unit. 	In that regard, we again by any of the parties on the
other criteria set forth in Section 3545(a) of the EERA.
The record indicates that the primary distinction between the
day-to-day substitutes and the long-term substitutes is that the
long-term substitute replaces a teacher who is absent for more
than 10 	consecutive days. 	Consequently, as in Belmont, supra,
long-term substitutes receive a higher rate of pay than do day-
to-day substitutes. 	The substitute is advanced on the 11th day
of consecutive teaching at a single post to a daily rate that
would correspond to his or her placement on the regular salary
schedule, but not to exceed a maximum of $50 per day. 	There was
no evidence that the duties of the day-to-day substitutes changed
dramatically when they became long-term subsitutes. 	Also, as in
Belmont, supra, there is no job security for long-term
substitutes, since Education Code Section 13445 allows the
governing board of the district to dismiss substitutes at will.
Long-term substitutes, like per diem substitutes, receive no
benefits. 	On the basis of an insufficient community of interest
4 Education Code Sections 5208 (1976 Supp.) and 5554.
5 Education Code Section 13332 (1976 Supp.)

between long-term substitutes and nondisputed certificated
employees and in the absence of any testimony regarding
established practices or efficiency of operation criteria, we
would exclude long-term substitutes from the unit.
Home Teachers
We find that home teachers lack a sufficient community of
interest with regular classroom teachers and should therefore be
excluded from the overall unit of certificated employees. 	There
are four home teachers in the Petaluma School Districts. 	Like
regular classroom teachers, they are certificated employees.
Additionally, they must have a "special fitness" to perform the
duties of the home teacher according to Education Code Section
13286 and 13287. 	Home teaher instruct those students who are
unable to attend regular class because of hospitalization, long-
term illness or some other incapacitating factor.6
The community of interest standard as discussed and applied
in Belmont, supra, and in this case, for long-term substitutes
and summer school teachers, is also not sufficiently established
in this case for home teachers. 	Ususally home teachers teach
students on a one-to-one basis away from the school site. 	They
are not required to have any responsibility for extracurricular
activities. 	Home teachers are not on the regular classroom
teachers' pay schedule; they are paid on an hourly basis.
Further, home teachers do not have any job security in the
district. 	They do not enter into a written contract with the
district. 	Their employment is based upon the number of students
needing their services at any given time. 	Though their status
may not be viewed as entirely casual, it is dependent upon the
unpredictable needs of the district. 	Like day-to-day substitutes
and long-term substitutes, they are called upon by the district
on an as-needed basis and are not guaranteed any reemployment
rights. 	Additionally, they are not supervised by a school
principal as are regular teachers. 	Instead, they are supervised
by the Director of Instructional Services who is located at the
districts' main offices.
There was no evidence presented on the efficiency of
operation criterion. 	Regarding established past practices and
the extent of organization, the record indicates that home
teahers have not in the past been the subject of meet and confer
under the Certificated Employee Council (CEC) process.7 On the
basis of this lack of sufficient community of interest and the
absence of testimony on established practices and efficiency of
operation, we shall exclude home teachers from the unit of
regular classroom teachers.
6 See also Education Code Section 6152.
7 Education Code Section 13080, et seq., repealed July 1,
1976. 	- -

Adult Education Teachers
Adult education teachers shall not be included in the unit of
regular classroom teachers. 	There were 108 adult education
teachers teaching in the district in the beginning of the school
year 1975-76, and 98 at the end of the school year. 	Fifty-nine
of the 108 were employed solely as adult education teachers.
Forty-nine of the teachers were employed by the district in the
regular day program, only 44 of which were regular certificated
teachers. 	Five of the adult education teachers were classified
employees.
The evidence presented at the hearing on established
practices and the extent to which employees belong to the same
employee organization was of a limited nature. 	It showed the
negotiations between the teachers and the district have been
conducted via the Winton Act.8 No evidence was offered that
either of the employee organizations, PFT or APAT, negotiated on
behalf of adult education teachers in the past. 	However, the
President of the Petaluma Adult Educators Association, a separate
professional organization, was chairman of the Certificated
Employees Council in 1974-75. 	This Association has had one seat
on the CEC. 	No evidence was presented as to how many adult
education teachers are members of either of the employe
organizations involved in this case. 	There was some testimony,
however, that 102 adult educators are members of the Petaluma
Adult Educators Association. 	There is not sufficient evidence to
allow us to rely upon established practices.
Regarding the community of interest, adult education teachers
are easily distinguishable form regular classroom teachers. 	In
order to teach in adult school, persons are not required to have
a college education. 	At least four years of experience in the
area of instruction is sufficient for the purposes of teaching
certain courses in the adult program. 	The recruitment of adult
educations teachers varies somewhat from the reruitment process
of regular school teachers. 	For example, where a person who is
certificated or qualified to be certificated as an adult school
teacher approaches the adult school principal with a course
offering, that person may be asked to teach the course. 	Classes
taught by adult teachers are more vocationally oriented than
regular day school classes, although there are some courses
offered which may be applied toward credit for a high school
diploma. 	Consequently, adult school classes are not covered by
the same cost guidelines approved by the Board of Education for
regular day classes. 	For example, there are generally no
district funds available for materials in adult courses; students
are required to purchase their won supsplies. 	If there is not
sufficient signup in classes other than those classes leading to
a high school graduation or diploma, the teacher is not employed
8 Id

for the course.
The adult school teachers are supervised by the Principal and
Vice-Principal of the adult whereas the day school principals
supervise the regular teachers . 	In contrast to the regular high
school program, the decision to approve or disapprove of adult
education classes depends on the needs of the communityl, the
availability of qualified instructors, the availability of
facilities, and the availability of funds. 	Though the adult
budget is considered part of a total budget for the high school
district, the adult school is supported in part by tuition
charged to the persons attending adult school. 	Support staff,
such as schoolnurses, school psychologists, and aides, are not
available in adult schools as compared to regular day school.
Testimony, however, by the Director of Personnel, indicated the
vocational counseling was available at the adult school.
Some job security does exist for adult education teachers.
The district's policy statement regarding adult teachers notes
the follows:
All adult education instructors shall be employed on an
hourly basis and shall be classified as probationary
adult education instructors. 	To be classified permanent
instructors, they would have to complete 75% of the
number of days the adult high schools of the district
are in session for three consecutive years and be employed
for the fourth year.9
Similarly, a probationary regular day school teacher may achieve
tenure after teaching three consecutive years and being employed
the following year.10 However, the achievement of tenure by
adult school teachers is separate from that for regular teachers.
Dual tenure is not achievable by the same employee in both adult
school and day school by reason of having served the required
probationary period in both systems. 	In such a case, the
employee must select between the two permanent classifications.11
In summary, evidence on the community of interest standard is
too lacking to allow the adult education teachers to be included
in the group of nondisputed certificated personnel.
ORDER
The Educational Employment Relations Board directs that the
9 See also Education Code Sections 13328 and 13309 (1976
Supp.).
10 Education Code Section 13304 (1976 Supp.).
11 Education Code Section 13311 (1976 Supp.)

following unit is appropriate for the purpose of meeting and
negotiating, provided an employee organization becomes the
exclusive representative:
All certificated employees, excluding adult education
teachers, home teachers, summer school teachers, day-to-
day and long-term substitute teachers, management
employees, supervisory employees, confidential
employees,
consultant employees and emergency employees.
Upon posting of the Notice of Decision, the employee
organizations have a 10 workday period in which to demonstrate to
the Regional Director at least 30 percent support in the above
unit. 	The Regional Director shall conduct an election at the end
of the posting period if: 	(1) more than one employee
organization qualifies for the ballot, or (2) if only one
employee organization qualifies for the ballot and the employer
does not grant voluntary recognition.
By: 	Raymond J. Gonzales, Member
Dated: 	February 22, 1977
Reginald Alleyne, Chairman, in concurrence.
I concur in the decision to exclude summer school teachers,
long-term substitutes, homebound and adult education teachers
from the stipulated unit of regular teachers and other
certificated employees. 	Unlike the principal opinion, however,
my reasoning is based solely on the community of interest
criterion contained in Section 3545(a) of the EERA. 	Little
evidence was offered on other Section 3545(a) criteria.
I disagree with the principal opinion to the extent that it
raises, considers and resolves an issue the parties in this case
were given no opportunity to address, either at the hearing or in
their post-hearing briefs.
In describing the issues in this case, the principal opinion
states:
First, the Board must determine whether or not
these employees are 'classroom teachers' within
the meaning of Government Code Section 3545(b)(1)
and, therefore, necessarily included within the
unit of other certificated personnel not in
dispute.
The opinion then defines a classroom teacher as "a regular full

time probationary and permanent teacher...employed by a
district..." 	The definition conveniently allowes the Board to
exclude some teachers from a negotiating unit without having to
interpret the word "all' in Section 3545(b)(1) of the Act. 	When
read literally and in isolation, that section requires the
placement of all classroom teachers in the same district-wide
negotiating unit, and does not permit the exclusion of any
teachers on community-of-interest or other grounds.
The definition of classroom teacher as an issue in this case
must come as a complete surprise to the parties. 	No party made a
contest over a definition of classroom teachers, and no party was
told at the hearing or at any other time that the Board would
take it upon itself to construct such a definition.
In enacting the EERA, the Legislature did not attempt to
define classroom teacher, probably because it is co clear that
anyone who teaches in a classroom in a district school is
performing the duties of a classroom teacher for whatever length
of time the duties are carried out. 	Yet, in this case, as in
Belmont Elementary School District, the Board has taken on the
legislative function of making up a definition for an ordinary
statutory term that ought to be given an ordinary meaning. 	This
is quite different from deciding, as we have many times in the
past, how the Legislature's definition of a term in the Act ought
to be interpreted.12
The principal opinion does not say why it is necessary for
this Board to make up a definition of "classroom teacher". 	All
parties in all of the certificated cases so far considered and
decided by the Board have presumably accepted the natural and
plain meaning of the term. 	The argument that all classroom
teachers must be in the same district-wide negotiating unit was
made by no one in the Belmont case and by no one in this case.
Every party in this case and both parties in the Belmont case
wanted to exclude at least one group of teachers from the
negotiating unit. 	This will not always be so, and we will have
ample opportunity to decide this issue in a contested case.
My disagreement with the Board's approach here is twofolded:
First, I believe that, with rare exceptions the Board should not
consider a matter unless it is disputed. 	It is the Board's
stated policy that the exceptions should be limited to those
instances in which parties reach an agreement in violation of one
of the few clear and specific provisions in the Act, not arguably
subject to a contest in respect to meaning.13 Second, the
12 Thirteen terms used in the Educational Employment
Relations Act are defined in Section 3540.1 of the Act.
13 In Tamalpais Union High School District (EERB Decision
#1, July 20, 1976), this Board stated:
In this case, the unit described as appropriate in
the consent-election agreement is not inconsistent with a clear

principal opinion, having improperly taken up this matter, has in
my view made the wrong decision. 	The problem with decisions on
subjects not raised by anyone is that parties in the case are
provided no opportunity to state their views on the subject in
advance of the decision. 	Further, a decision made in the absence
of conflicting viewpoints of the parties is more likely than
otherwise to be incorrect. 	Since our decisions are likely to
disappointment at least one of the parties, I think we should not
compound the disappointment of the decision-loser by basing a
decision on a theory the decision-loser never had the opportunity
to address. 	I think we should not risk an unsound decision that
would not have been made had the subject involved been argued and
briefed by the parties. 	I believe that the attempt to define the
term classroom teacher in a manner in conflict with its plain
meaning suffers in both respects.
The Board's novel definition of a classroom teacher is
arbitrarily tailored to support the desired result of permitting
the Board to exclude some classes of teachers from a negotiating
unit containing full time regular teachers. 	I think the Board
should avoid that kind of inverse reasoning. 	It oftens traps and
disrupts the reasoning process in subsequent cases.
The potential for mischief inherent in the Board's definition
of classroom teacher is illustrated by an isssue in one case now
before the Board. 	In the Oakland Unified School District14 case,
one issue, among others, is whether teachers in children's
centers may form a separate negotiating unit, apart from the unit
of regular kindergarten through grade 12 teachers and other
certificated employees. 	The facts in the case present a
and specific mandate in the unit criteria provisions in the
[EERA]. 	Accordingly, we decide that the consent-election
agreement is controlling in this case...
In addition on May 5, 1976, the EERB adopted the following
motion: The Executive Director is directed to approve all
consent-election agreements in accordance with the rules of case
deliberation meetings to be adopted by the Board, with the
exception of those that violate a specific mandate in a unit
criterion section of the Educational Employment Relations Act
(for example Section [3545(b)(3)] precludes the inclusion of
classified and certificated employees within the same unit).
In consent agreement, 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.
14 Case No. 	SF-R-119, 200, 400.

reasonable close question on the application of community of
interest criteria. 	If, on community of interest grounds,
children's center teachers are entitled to a separate negotiating
unit they will not receive one if the Board's new definition of
classroom teacher is followed. 	Children's center teachers are
regular "probationary" or 'permanent" teachers within the
following options open to the Board: 	(1) 	exclude the children's
center teachers on community of interest grounds and avoid
applying the new definition of classroom teacher since it does
not permit their exclusion; 	(2) 	include the children's center
teachers on the ground that they are classroom teachers within
the meaning of the Board's definition of classroom teacher; 	(3)
exclude children's center teacher on community of interest
grounds, and then make up a definition of classroom teacher that
does not cover them. 	I think there is a less oblique and less
arbitrary means of coping with the work "all" in Section
3545(b)(1).
In a subsequent case before the Board, if this issue is
presented as a contested matter; that is, if at least on party
seeks the inclusion of all teachers, and at least one other party
seeks to include some but not all teachers in the unit, I would
favor the following reasoning:
By reading Government Code Section 3545(a) and 3545(b)(1)
together and not in isolation, all classroom teachers with a
community of interest, and who satisfy other Section 3545(a)
criteria, must be in the same districtwide negotiating unit.15
This permits the exclusion of teachers who fail to meet the
criteria provided in Section 3545(a). 	Section 3545(a) requires
that the Board consider community-of-interest and other
enumerated criteria "[i]n each case." 	Section 3545(a) does not
exclude from its application the classroom teachers mentioned in
Government Code Section 3545(b). 	This interpretation is at least
based on language in the statute and not on language with not
statutory basis, as in the Board's definition of classroom
15 The pertinent portions of Government Code Section 3545
provides:
(a) 	In each case where the appropriateness of
the unit is an issue, the Board shall decide the question on the
basis of the community of interest between and among the
employees and their established practices including, among other
things, the extent to which such employees belong to the same
employee organization, and the effect of the size of the unit on
the efficient operation of the school district.
(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.

teacher. 	Reading Sections 3545(a) and 3545(b)(1) together also
avoids the absurd result of placing in the same unit teacher
groups with so clear an absence of a community of interest that
effective bargaining would be indisputably impeded. 	This
interpretation is also consistent with the obligation placed on
us by the courts of this state to interpret legislation in manner
consistent with its overall purpose and to avoid literal
interpretations in conflict with that overall purpose.16
Even with this fairly firm tentative view on teh
interpretation of the work "all" in Section 3545(b), I would not
favor imposing it on onyone without first providing all parties
involved in a case presenting the issue an oportunity to expose
error in this reasoning. 	At the very least, the parties in this
case should have been warned in advance of the filing of briefs
that the Board would consider a definition of classroom teacher
and the interpretation of the word "all" in Section 3545(b) of
the Act.
Reginald Alleyne, Chairman
Jerilou H. Cossack, Member, concurring in part and dissenting in
part.
I disagree with the conclusion of the majority to exclude the
classifications of summer school, home education and substitute
teachers from the overall certificated unit. 	I agree, but for
somewhat different reasons, that adult education teachers should
be excluded from the overall unit.
I
Before explaining why I dissent as to the three enumerated
classifications, I adress myself to the interplay between
subdivisions (a) and (b)(1) of Section 3545 of the Act.17 The
interpretative issue is discussed in two of the post-hearing
briefs in this case,18 a fact overlooked in the Chairman's
16 See Silver v. Brown, 63 Cal. 2d 841, 845, 48 Cal. Rptr.
609 (1966) "The literal meaning of the words of a statute may be
disregarded to avoid absurd results or to give effect to manifest
purposes that, in the light of the statute's legislative history
appear from its provisions considered as a whole."
17 Government Code Sections 3540 et seq.
18 The Brief on behalf of Petaluma Federation of Teachers,

Local 1881, CFT/AFT, AFL-CIO, Plainly addresses the definition of
"classroom teachers" in regard to several types of teachers. 	For
example:
"Government Code Section 3545(b)(1) does not require that
day-to-day substitutes be included in a unit of classroom
teachers. 	The Education Employment Relations Board will
of course be required to define what is meant by
'classroom teachers,' since the defintional portion of
the Rodda Act does not define the term. 	See Government
Code Section 3540.1. 	Just as the National Labor
Relations Board has interpreted the meaning of'employee'
to exclude certain individuals who might otherwise be
characterized as employees, the E.E.R.B. must now exclude
substitutes from the meaning of 'classroom teachers.'
Basically, just as the National..." At page 2 of the
brief.
"There is in fact no argument to exclude homebound
teachers do not perform their services in the
'classroom,' they perform all the functions of class-
room teachers; i.e., the Education Code does not
require that those teachers included in the classroom
teacher unit perform their services within the confines
of a particular classroom or building. 	The fact that
homebound teachers perform their services for the most
part in the homes of students is no basis for exclusion,
because such an exclusion would be based upon an
unreasonable reading of the word 'classroom.'" 	At pages
6-7 of the brief.
The brief of the Petaluma School District also discusses
3545(b)(1). 	The district argues that adult education teachers
are classroom teachers and "full clearly within the code
section," but that some teachers should be excluded from the
unit:
"It is the position of the District that home teachers
should be excluded from the Unit. 	Although such
employees do perform classroom functions, it is submitted
that, under Government Code Section 3545(b)(1), they are
not regular employees to be included in the unit but are
rather 'casual employees' who must be excluded." 	At page
5 of the brief.

concurring opinion.19 Indeed, since the construction of the Act
presents a question of law, this Board's duty to apply the law to
the facts requires that we resolve all relevant issues of
statutory construction even where they have evoked no comment by
the parties. 	Cf. People v. Jones, 6 Cal. 2d 544 (1936).
I differ from the Chairman about the basic rules of statutory
construction. 	In my view, a general provision, such as Section
3545(a) of the Act, is controlled by one that is specific, such
as Sections 3545(b)(1), (2), and (3), with latter treated as an
exception to or qualification of the former. 	Rose v. State of
California, 19 Cal. 2d 713, 723 (1942). 	While it is true that
this rule of construction is merely an aid in determiing
legislative intent and should not be used to defeat the apparent
purpose of the statute,20 I cannot accept the Chairman's
contention that "classroom teachers" is a term of plain meaning.
"The 'plain meaning' rule rests upon the fallacy that so-called
clear and unambiguous words have independent existence and
meaning [citation.] 	Words take color from their context, and
language of fairly certain significance becomes equivocal in
relation to its surroundings. 	Sometimes plain meaning disappears
in the reflected light of the provision's objectives and policy."
Redevelopment Agency v. Malaki, 216 Cal. App 2d 480, 488 (1963);
cf. Pacific Gas & Co. v. G.W. Thomas Drayage etc., 69 Cal. 2d 33,
38-39 (1968). 	The legislative purpose apparent from the statute
as a whole will not be sacrificed to a literal construction of
part of the Act. 	Friends of Mammoth v. Board of Supervisors, 8
Cal 3d 247, 259 (1972); Select Base Materials v. Board of Equal.,
51 Cal. 2d 640, 645 (1959). 	I find it inconsistent for the
Chairman of argue that "classroom teachers" is unambiguous, while
at the same time advocating that "classroom teachers" are subject
to the criteria enunciated in Section 3545(a).21
II
As I indicated in Belmont, supra., the definition of the unit
is the cornerstone of the obligation to negotiate and further
determines the parameters of this obligation. 	Once having
concluded that the disputed classifications are not "classroom
19 The Chairman's concurring opinion also overlooks that
the same issue was raised at pages 9-10 of the post-hearing brief
filed by the Belmont Faculty Association in the Belmont
Elementary School District case (EERB Decision No. 	7, December
30, 1976).
20 California State Employees' Association v. Regents of
University of California, 267 C.A. 2d 667, 670 (1968).
21 I do not believe it is proper to prematurely debate the
merits of a case under submission to the Board. 	I reserve my
response to those portions of the Chairman's concurring opinion
regarding Oakland until we issue our formal opinion in that case.

teachers," we are required by the statute to consider three
criteria in determining an appropriate unit ia each case: 	(1)
The community of interest between and among the employees; (2)
the established practices of the employees, including, among
other things, the extent to which such employees belong to the
same employee organization; and (3) 	the effect of the size of
the unit on the efficient operation of the school district.
As I will more completely set forth, I believe that the
classifications of summer school, home education and substitute
teachers share a community of interest with other teachers.
Equally important, however, is the failure of the majority to
give any weight to the other enumerated criteria of the statute
in including that these classifications should be excluded from
the unit. 	Summer school, home education and substitute teahers,
as discrete classes of people, are certainly employees within the
meaning of the Act. 	As such, they are entitled to
representation, if not in the overall unit, then in separate unit
or units. 	Thus, excluding these three classifications from the
overall certificated unit encourages unnecessary proliferation of
units, which is detrimental to the efficient operation of the
school district. 	Further, with respect to the classification of
summer school teachers, a separate unit will compress the
formation of the employee organization, its recognition or
certification, and negotiation into the brief summer school
period. 	This would place a burden on the employees and the
employer which is likely to interfere with their more important
responsibilities to the students and the public in general.
Summer School Teachers
As in Belmont, the summer school teachers in Petaluma have
the same training, qualifications and skills as teachers in the
over unit. 	They teach the same children, in the same facility,
using the same materials, for a similar number of hours each day.
As with the teachers in the overall unit, summer school teachers
are required to prepare lesson plans, conduct examinations and
submit grades. 	Summer school teachers also confer with parents,
accept extra-duty assignments and are required to attend faculty
meetings, just like all other teachers.
The summer school program is part of an integrated, year-
round academic program.22 The district employs a high percentage
of its regular teachers as summer school teachers:23 in the 1976
summer school program, 62 percent of the elementary teachers and
90 percent of the high school teachers were also teachers during
the regular school year. 	Further, there is substantial
22 See Van Burden Public School, and Van Buren Education
Association, Case No. R73 F-258 (Michigan).
23 See Great Nect Board of Education, Union Free School
District No. 7, N.Y. PERB, 4-3017, Case No. C-0482 (1971).

reemployment of previous summer school teachers: 	62 percent of
the 1976 summer school teachers had taught summer school in 1975
and 49 percent in 1974. 	In fact, the district sends notices each
spring to its regular teachers and those previously employed ass
summer school teachers requesting a synopsis of the course that
each proposes for the coming summer school session.
Finally, three schools in this district operate on a "45-15"
schedule in which school is in session for 45 days and in recess
for 15 days. 	During the 15 day recess period, the district
offers students in thes schools the opportunity to take special
remedial or enrichment classes. 	Teachers of these intersession,
or recess, courses are identical in every respect to summer
school teachers except that they teach at different times of the
year. 	Notwithstanding 	this close indentity of interest, the
majority includes these intersession teachers in the overall unit
but excludes summer school teachers. 	I find the dissimilar
treatment of these two nearly identical groups of employees
perplexing at best.
I would, accordingly, include the classification of summer
school teachers in the overall unit.
Home Teachers
My colleagues find that a community of interest is not
sufficiently established between home teachers and other regular
classroom teachers in Petaluma district. 	I disagree.
The majority opinion studiously avoids mentioning the
multitude of interests and working conditions which home teachers
share with classroom teachers. 	Four certificated teachers work
exclusively as home teachers. 	In addition, the district
supplements the home instruction program by also assigning,
whenever possible, regular classroom teachers to provide home
instruction. 	Teachers providing home instruction are all fully
certificated personnel who teach the same curriculum, and perform
vitually all the same duties performed by regular classroom
teachers. 	They also often teach as many as six students at the
same time. 	Home teachers share common supervision with many of
the teachers in the overall unit, and are fully integrated with
the remainer of the certificated staff in the day to day
performance fo their duties. 	They rely on such persons included
in the overall unit as librarians, reading teachers, nurses and
school psychologists. 	Although home teachers, whether regular
classroom teachers who perform this work as extra duty or persons
who are employed only as home teachers, are paid on an hourly
basis, all home teachers are entitled to the same fringe benefits
on a pro rata basis as regular classroom teachers.
Some of the characteristics cited by the majority as
allegedly distinguishing home teachers from other certificated
teachers in the overall unit are misleading. 	My colleagues claim
that home teachers "are not supervised by a school principal as

are regular teachers. 	Instead, they are supervised by the
Director of Instructional Services who is located at the
district's main offices". 	This statement is correct as far as it
goes. 	What the majority fails to disclose is that the Director
of Instructional Services also supervises the entire spectrum of
special education teachers, all of who are included in the
overall unit.
The majority also alleges that home teachers do not have job
security in the district. 	To the contrary, home teachers may
qualify for tenure on the same basis as all other certificated
teachers. Although, home teachers perform "as needed," the fact
is that are needed daily, over extended periods of time. 	At
least one home teacher works full time in the home instruction
program.
In the final analysis, there is really very little which
distinguishes home teachers from other certificated teachers
included in the overall unit. 	Even the fact that home teachers
interact with children on a one-to-one ratio and work outside the
classroom are conditions common to persons included within the
unit. 	And where my colleagues are able to identify minor
differences between home teachers and other certificated
teachers, there is no suggestion that any of these difference
will result in conflicts of interest adverse to effective
representation in a negotiating unit.
As in Great Neck Board of Education, Union Free School
District No. 7, supra., where the New York PERB held that some
bound teachers should be included in an existing teachers unit,
the weight of the evidence in this case clearly favors inclusion
of home teachers in the overall unit of certificated personnel.
In Petaluma, the home teachers share a strong community of
interest with the members of the negotiating unit and no conflict
of interest is apparent which would disturb such a relationship.
On the other hand, the majority's decision to exclude the
classification of home teachers from the overall unit leads to
unnecessary fragmentation, and denies these admittedly non-casual
employees effective representation in a unit of reasonable size.
Long-Term Substitutes
As I stated in Belmont, supra., I favor including in the
overall unit those substitutes who have a substantial and
continuing employment relationship with the district while
excluding those whose employment relationship is so tenuous that
they have no legitimate concern about those matters within the
scope of representation.
All substitutes must possess the appropriate credential, just
like regular teachers. 	They teach in the classroom, just like
regular teachers. 	They are supervised by the principal, just
like regular teachers. 	Long-term substitutes receive a daily
rate of pay that corresponds to their placement on the regular

salary schedule, provided they do not earn more than $50 per day.
The duties of long-term substitutes increase as the number of
days teaching increases. 	Instead of following the lesson plans
prepared by the regular teacher, long-term substitutes are
expected to prepare their own lesson plans; they are expected to
take over extra duty assignments, prepare grades, meet with
parents if necessary, and consult with other certificated
employees regarding students. 	Occasionally a long-term
substitute has become a temporary teacher.
During the 1975/76 school year elementary school long-term
substitutes taught between two and 52 consecutive days beyond the
ten consecutive days required to be classified as a long-term
substitute and high school long-term substitutes taught between
four and 63 consecutive days beyond the ten day requirement.
Thus, long-term substitutes taught between 14 and 73 consecutive
days during the 1975/76 school year. 	It is clear in this case
whether any of all of these people also taught as day-to-day
substitutes. 	However, since all substitute, both day-to-day and
long-term, are selected from the same list, it stands to reason
that at least some of the long-term substitutes also taught as
day-to-day substitutes.24
We have included in the overall certificated unit part-time
teachers who teach less than 51 percent of a full-time assignment
and temporary teachers hired under a contract. 	Belmont, supra.
If we could include these people in the overall unit in Belmont,
I see very little reason to exclude substitutes who teach a
semester or more; I see no meaningful distinction between those
persons on a contract and those not on a contract who work the
same or equivalent amounts of time performing the same duties.
As I stated in Belmont, I favor devising a formula which would
permit those substitutes with a substantial and continuing
employment relationship to be represented in the overall
certificated unit. 	Perhaps an appropriate line of demarcation
and one consistent with 	our holdings on other part-time teachers
would be to include in the overall unit those substitute teachers
who teach a semester or more.
Adult Education Teachers
While I agree with the majority that the classification of
adult education teachers should be excluded from the overall
certificated unit, it failed to discuss several critical factors.
24 Thirty-eight substitutes worked between one and ten non-
consecutive days during the 1975/76 school year; eight between
ten and 20 days; three between 20 and 30 days; two between 30 and
40 days; three between 40 and 50 days; and five worked over 50
non-consecutive days. 	Fifty-four high school substitutes worked
between one and ten non-consecutive days; 21 between ten and 20
days; nine between 20 and 50 days; and 13 worked over 50 non-
consecutive days during 1975/76 school year.

The graveman of my disagreement rests with the majority's
failure to distinguish the adult education program from the
regular K-12 program. 	Unlike the summer school program, the
adult education program is not integrated with the regular K-12
program. 	Adult education teachers do not attend faculty
meetings, either their own or those of the regular teachers. 	Nor
do they interact in any formal way with regulr teachers. 	They
are required to give grades only when a course is being taken for
credit toward a high school diploma; even here, however, the
adult education teachers are not required to follow the same
course guidelines established for the same course taught in the
regular program. 	Adult education teachers are not evaluated
pursuant to the Stull Act. 	Unlike regular teachers, the salaray
schedule for adult education teachers does not allow for
increased compensation for post graduate education.
The interests and concerns of adult education teachers are
quite different from those of other certificated personnel with
respect to several matters within the scope of representation --
wages, hours of employment, class size and evaluation procedures.
Thus, although there is come overlap between regular
certificated employees and adult education teachers, I do not
think this overlap, unlike that of summer school teachers, is
substantial enough to protect the discrete rights and interests
of adult education teachers. 	Rather, I view their differences as
more significant than their common characterics and conclude that
these differences , taken together, indicate the strong
possibility of conflicting employment interests adverse to effect
representation.
The distinct argues strenuously against a separate unit for
adult education teachers, claiming that"...there are serious and
perhaps disastrous, consequences if EERB begins to fragment ther
certificated and classified employees into small groups." 	Yet
the district offers little evidence on the actual consequences of
fragmentation. 	It concern for the consequences of over-
fragmentation apparently vanishes when it concurrently argues
against inclusion of summer school, home education and long-term
substitute teachers.
Jerilou H. Cossack, Member