Monterey Peninsula Community College District (PERB 0076E)

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STATE OF 	CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
MONTEREY 	PENINSULA 	COMMUNITY
COLLEGE 	DISTRICT,
Employer,
and
MONTEREY 	PENINSULA 	COLLEGE 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Employee 	Organization,
and
FACULTY ASSOCIATION 	OF MONTEREY
PENINSULA 	COLLEGE,
Employee 	Organization.
Case No. 	SF-R-481
PERB Decision No. 	76
October 16, 	1978
Appearances: 	Keith V. 	Breon, 	Attorney 	(Breon, 	Galgani & Godino)
for Monterey Peninsula Community College District; 	Duane 	B. 	Beeson,
Attorney 	(Brundage, 	Beeson, 	Tayer & Kovach) 	for Monterey Peninsula
College Teachers Association, 	CTA/NEA; 	Elliot Roberts 	and
Dr, 	Whitney Baines 	for 	Faculty Association 	of Monterey Peninsula
College.
Before Gluck, 	Chairperson; 	Cossack Twohey and Gonzales, 	Members.
DECISION
On November 	17, 	1977 	Public Employment Relations 	Board 	(here-
after PERB or 	Board) 	hearing officer Barbara 	Bardach 	issued a
proposed 	decision 	finding 	that 	division 	chairpersons 	in 	the Monterey
Peninsula 	Community College District 	(hereafter District) 	are not
supervisors within 	the meaning of 	section 	3540.1(m) 	of 	the Educa-
tional 	Employment 	Relations 	Act'1 (hereafter EERA) 	and 	that parks
1The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at 	Gov.
Code 	sec. 	3540 	et 	seq. 	All further 	statutory references 	are 	to 	the
Government 	Code unless 	otherwise 	indicated.

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and 	recreation 	instructors 	are 	appropriately 	included 	in 	a unit 	of
certificated personnel 	of 	the District. 	The District 	and 	the 	Faculty
Association of Monterey Peninsula 	College 	(hereafter FAMPC) 	filed
timely exceptions 	to 	the hearing officer's 	finding 	that parks 	and
recreation 	instructors 	share 	a 	community 	of 	interest with members
of 	the 	certificated unit 	for 	the District. 	Exceptions 	by 	the Monterey
Peninsula 	College Teachers Association, 	CTA/NEA 	(hereafter MPCTA)
to 	the 	finding of 	the hearing officer 	that division chairpersons 	are
not 	supervisors were 	rejected as 	being untimely 	filed.
On May 17, 	1977 	the District, 	MPCTA and FAMPC entered a consent
election agreement 	stipulating 	to 	the 	appropriateness 	of a unit 	of
all 	certificated positions 	but 	excluding 	specified positions, 	and
further 	stipulating 	that 	ballots 	cast by persons 	classified as
division chairpersons, 	parks and recreation instructors, 	and fire
science 	instructors would be 	challenged, 	and 	that 	if 	the 	challenged
ballots were 	sufficient 	in number 	to 	determine 	the 	outcome 	of 	the
election, 	a representation proceeding of 	the 	Board would be 	held
to resolve their status.
2For the 	reasons 	set 	forth in Monterey Peninsula Community
College District 	(5/16/78) 	PERB Order No. Ad-32, we rejected the
exceptions 	of MPCTA as untimely filed. 	Nonetheless, 	we have 	exercised
our 	power 	to 	sua 	sponte review 	the 	status 	of division 	chairpersons.
See section 3541.3(a), 	and Cal. Admin. Code, tit. 8, sec. 32320(a).
It 	is 	the 	responsibility of PERB 	to 	protect 	public policy by
ensuring 	the 	appropriateness 	of units 	for meeting 	and negotiating.
See 	sections 	3540 	and 3544.7. 	It 	is 	particularly important 	that 	the
Board 	ensure 	that 	positions 	which are 	specifically 	excluded 	from
certificated units by statute, 	such as 	supervisors, 	are not
improperly 	included in 	such units. 	A 	similar position 	is 	taken
by 	the National 	Labor 	Relations 	Board 	in holding 	that 	otherwise
binding 	"Norris-Thermador 	lists 	of 	employees 	eligible 	for 	certifi-
cation 	elections may be 	challenged 	for 	inclusion of persons 	holding
positions 	excluded 	from the unit by 	the National 	Labor Relations
Act 	itself, 	such as 	supervisors. 	See Norris-Thermador Corporation
(1958) 	119 NLRB 1301 	[41 LRRM 1283]; 	Lake Huron Broadcasting
Corporation (1961) 	130 NLRB 908, 	909 	[47 LRRM 1443, 	1444]; 	Fisher-
New Center Company 	(1970) 	184 NLRB 809, 	810 	[74 LRRM 1609, 	1610].
While 	a party's 	failure 	to 	submit 	an exception to 	a 	decision of
a hearing officer waives 	that party's 	right 	to 	assert 	that 	exception,
it 	is 	incumbent 	on 	the Board not 	only 	to 	review those portions 	of
unit 	determination cases 	properly appealed, 	but 	to 	examine 	appealed
cases 	fully, 	and, 	when appropriate, 	review findings which were not
appealed. 	See Cal. Admin. Code, 	tit. 	8, 	secs. 	32300(c) and 32320(a);
Rules 	and Regulations 	and Statement of Procedure, 	Series 	8 of the
National Labor Relations Board, 	sec. 	102.48(b).
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J
In the 	election of May 31 	and June 1, 	1977, nine ballots were
cast by 	division chairpersons, 	one ballot was 	cast by a parks 	and
recreation instructor, 	and no 	ballots were 	cast 	by fire Science
Instructors. 	The 	challenged ballots 	are 	sufficient 	in number 	to
determine the outcome of the election.3
The 	District 	and FAMPC 	urge 	the 	inclusion of division chair-
persons 	and 	exclusion 	of 	parks 	and recreation instructors while
MPCTA urges 	exclusion 	of division chairpersons 	and 	inclusion 	of
parks 	and recreation instructors. 	The 	parties 	stipulated 	that
the 	Board's 	determination of 	inclusion or 	exclusion 	of 	parks and
recreation 	instructors 	would 	apply 	to 	fire 	science Instructors 	as
well.
We 	affirm 	the 	hearing 	officer's 	decision 	including 	division
chairpersons except 	as modified herein and reverse 	the 	decision
including 	parks 	and 	recreation 	instructors. 	As 	no 	challenged
ballots were 	cast by 	fire 	science instructors, 	we 	express 	no
opinion 	on 	the 	appropriateness 	of 	including 	them 	in 	a unit 	of
certificated 	employees 	of 	the 	District.
FACTS 	.......
Division 	Chairpersons
The 	District 	has 	one 	official 	campus 	in Monterey 	and offers 	a
Community 	Education Program at various 	locations 	around 	the 	District.
The 	faculty 	is 	divided into 	10 	divisions. 	As 	one 	division 	is 	adminis-
tered by 	the 	director 	of 	continuing 	education who 	was 	excluded 	from
the unit by 	stipulation of the parties 	on May 17, 	1977, 	there are
nine 	division 	chairperson positions 	in 	dispute. 	Divisions 	(such
as Humanities, 	Life Sciences, 	and Social 	Science) 	contain one or
more departments 	(such as English, 	History, 	and Biology) 	and range
in 	size 	from two 	to 	27 	full-time 	faculty.
Division 	chairpersons 	chair 	the 	selection 	committee 	for 	hiring
of 	full-time 	faculty members 	within 	their 	division. 	The 	committee
3 The Tally 	of 	Ballots 	shows 	that 	there 	were 	412 	eligible 	voters,
no 	void ballots, 	176 	ballots 	cast 	for MPCTA, 	167 	ballots 	cast 	for
FAMPC, 	9 	ballots 	cast 	for no 	representation, 	and 	10 	challenged ballots,
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is 	composed of representatives 	from 	the 	administration 	and various
faculty groups. 	The precise nature of the 	faculty groups 	is not
apparent 	from the record; 	however 	the record 	indicates 	that 	the
division 	chairperson recommends a representative 	from each group,
and final 	selection of the members 	of 	the 	committee 	lies with 	the
members 	of 	the groups 	represented. 	Three 	candidates 	selected by
the 	selection committee are presented 	to 	the college president.
The 	president 	and 	selection 	committee 	then 	choose 	a 	single nominee
who 	is 	recommended 	for hire 	to 	the 	governing board of 	the 	district.
Division 	chairpersons 	forward 	department 	recommendations 	for
hiring 	of part-time 	faculty 	to 	the 	Office of 	Instruction. 	There
is 	some 	evidence 	that 	on 	those 	infrequent occasions when a part-
time 	position 	is 	available 	in 	the 	field of 	expertise of a chairperson,-
some 	chairpersons 	become 	actively 	involved 	in 	the 	selection of a
person 	for 	recommendation 	to 	the 	Office 	of 	Instruction 	for
hire.
Chairpersons 	have no 	authority 	to 	transfer 	or 	suspend 	employees,
nor 	do 	they 	independently recommend 	discharge 	of 	part-time 	faculty
though 	they may 	convey 	the 	recommendation 	of 	the 	involved 	department
to 	the administration.
Division chairpersons 	serve 	as 	advocates 	for 	those 	full-time
faculty members 	whose work 	is 	reviewed by 	an 	evaluation 	committee
when 	a biennial 	student 	evaluation reveals 	a 	problem with 	the
faculty member. 	They also 	chair 	the 	committee which 	evaluates newly
hired 	contract 	faculty who 	lack tenure, 	but 	they have no 	greater
voice 	in 	the 	recommendations 	of 	that 	committee 	than any other member
of the 	committee.
It 	is 	the responsibility of 	the 	division chairpersons 	to 	ensure
that 	the 	departments 	conduct 	evaluations 	of part-time 	faculty.
Part-time 	faculty 	are 	evaluated by 	a 	full-time 	faculty member 	selected
by 	their 	department 	chairperson. 	Division chairpersons 	themselves
are 	selected 	to 	evaluate part-time 	faculty members, 	but 	their
recommendations 	are 	accorded no more weight 	than 	those 	of 	other
faculty members. 	Chairpersons 	are 	themselves 	evaluated as 	teaching
faculty members.
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Though division chairpersons 	are 	shown 	in 	the 	Faculty Handbook
as 	the 	first 	step 	in 	the grievance procedure, 	the record reveals
that 	chairpersons 	are not 	in fact part of 	the grievance procedure.
One chairperson was 	not 	aware 	that 	she was 	listed as 	part 	of 	the
grievance procedure; 	another 	chairperson 	testified 	that 	he had
not known what 	to 	do on the one 	occasion when a grievant had come
before him. 	There 	is 	no 	evidence 	that 	a division chairperson has
ever 	exercised 	authority 	to 	resolve 	a 	grievance 	or has maintained
records 	of a 	grievance proceeding.
Chairpersons have no 	authority 	to 	impose 	discipline, though they
serve 	as 	a 	go-between when 	the administration has 	a 	complaint with
a 	faculty member. 	Although chairpersons 	are 	informed of 	faculty
absences 	and may 	investigate 	the 	reasons 	for 	prolonged or 	frequent
absences, 	they have never recommended 	loss 	of pay or 	other 	discipline
for unexcused absences. 	Nor 	is 	there evidence that division chair-
persons 	have 	ever 	denied 	travel 	and 	leave 	requests 	though 	their
approval 	and recommendation 	to 	the 	administration 	is 	required.
Chairpersons review budget, 	class assignment, 	class 	size and
curriculum recommendations 	of the 	departments, 	but 	these recommenda-
tions 	are never 	changed by chairpersons. 	Their 	review is 	largely
a 	clerical 	check 	for 	accuracy.
Division chairpersons 	receive 	from 20 	to 	50 percent 	release 	time
from teaching 	to 	perform the 	administrative 	duties 	discussed herein.
They are 	assigned an 	additional 	five 	days 	of work a year 	at 	the
beginning 	of 	the 	school 	year 	for 	administrative work 	for which 	they
receive 	additional pay, 	but 	they receive no 	stipend above 	their
faculty 	salary 	for 	their chairperson 	duties. 	Chairpersons 	are not
assigned 	special 	office 	space 	during 	their 	tenure 	as chairperson.
Division 	chairpersons 	are not 	required 	or requested 	to 	hold
an administrative 	or 	supervisory 	credential. 	They 	are not 	precluded
from serving on 	the Faculty 	Senate 	as 	are members 	of 	the 	administra-
tion, 	and at 	least 	one 	division chairperson was 	active on the Faculty
Senate 	in 	1977 	and one 	past division chairperson was 	simultaneously
President 	of 	the 	Faculty Senate.
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Chairpersons must 	be mutually 	acceptable 	to 	the 	faculty 	of
their 	division 	and 	the 	administration. 	Division 	full-time 	faculty
elect 	their 	choice 	for chairperson and 	the 	administration 	either
confirms 	or rejects 	that 	choice. 	Unlike other 	administration
officials, 	acceptance of a division chairperson 	is not voted on by
the District's 	governing board. 	Terms 	are 	for 	three years 	and
division chairpersons may be 	and have 	been reelected. 	Division
chairpersons 	are 	never hired 	from outside 	a 	division.
Evaluations 	of 	their 	performance 	as division chairpersons
are 	conducted by 	committees 	of 	faculty 	selected 	at 	division
faculty meetings. 	Evaluation 	forms 	are 	distributed 	to 	all 	part-
and 	full-time 	faculty 	in 	the 	division, 	and 	the administration 	is
informed of 	the 	results 	of 	the 	evaluation.
Both 	the 	administration 	and 	the 	faculty 	can remove 	a division
chairperson before 	completion of 	the 	three year 	term. 	No 	instance
of 	a mid-term removal 	by the 	administration has 	been revealed, 	but
on 	one 	occasion 	the mid-term resignation 	of 	a division chairperson
was 	eventually 	compelled 	subsequent 	to 	loss 	of 	a vote 	of 	confidence
at 	a 	division meeting.
From 12 	to 	15 	times 	a year 	the division chairperson Caucus
meets. 	It consists of the division chairpersons, 	the librarian,
the head counselor, 	several 	administrators 	and the dean of instruc-
tion who 	chairs 	the meetings. 	The meeting 	serves 	largely 	to 	dis-
seminate 	the 	administration's 	views 	and policies 	to 	the division
chairpersons, who 	in turn 	inform their 	divisions 	at 	division
faculty meetings 	and report back to 	the 	Caucus. 	Administration
policy 	is 	never 	formed or 	recommended by vote at 	the Caucus 	meetings.
Division 	faculty meetings 	are 	chaired by 	the chairpersons 	and
held 	at 	regular 	intervals 	which vary 	from weekly 	to monthly 	from
division 	to 	division. 	At 	these meetings 	the chairpersons 	convey
administration policies 	and 	solicit 	responses 	to be 	carried back 	to
the Caucus.
Two 	chairpersons 	testified 	that 	they viewed 	themselves 	as
faculty advocates 	in relations with 	the 	administration, 	and 	there
was 	evidence 	that chairpersons 	in 	the Division chairperson 	Caucus
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had been 	opposed 	to 	creating 	a 	stipend 	for chairpersons 	as 	they
felt 	it would 	tend 	to 	differentiate 	them 	from the 	remaining 	faculty.
Each 	division has 	a 	secretary who 	is 	primarily responsible 	for
division business 	but who 	also 	does work 	for 	division 	faculty.
Chairpersons 	supervise 	and direct 	the work of the 	division 	secre-
taries 	and 	formally evaluate 	them twice 	a year. 	Little 	evidence
on 	selection of 	the 	division 	secretaries was 	presented. 	In one
division 	the 	secretary was 	selected by 	a 	series 	of 	committees
involving 	the 	entire 	division 	faculty 	in which the 	vote 	of 	the
chairperson 	carried no 	more weight 	than 	that 	of other 	faculty
members. 	There was no 	evidence 	in 	the record on procedures 	for
termination of 	division 	secretaries.
DISCUSSION
EERA 	section 3540.l(m) 	defines 	a 	supervisory employee 	as:
...any employee, 	regardless of job descrip-
tion, 	having authority in the 	interest of
the employer to hire, 	transfer, 	suspend,
lay off, 	recall, promote, discharge, assign,
reward, 	or discipline other employees, 	or 	the
responsibility 	to 	assign work 	to 	and 	direct
them, 	or to adjust their grievances, 	or
effectively recommend such action, 	if, 	in
connection with 	the 	foregoing 	functions,
the 	exercise of 	such authority 	is not of 	a
merely routine or 	clerical nature, 	but 	requires
the use 	of 	independent 	judgment.
In Los 	Rios 	Community College District4 we 	determined 	that,
despite 	long-standing 	traditions 	of 	collegiality 	and 	shared 	authority
within 	institutes 	of higher 	education, 	division 	chairpersons
held 	an allegiance 	to 	the 	administration not 	required of
other 	faculty 	and 	exercised 	substantial 	independent 	control 	over
critical 	aspects 	of 	faculty responsibilities. 	In 	those 	circumstances
we 	concluded 	that 	division 	chairpersons 	were 	supervisory 	employees.
None 	of 	the 	indicia of allegiance 	to 	the administration present
in Los Rios 	are present in this 	case. 	Unlike Los Rios, 	no 	stipend
4 (6/9/77) 	EERB Decision No. 	18.
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in addition 	to 	their 	regular 	teaching 	salary 	is 	paid division
chairpersons,5 nor 	are division chairpersons 	requested or required
to 	hold 	supervisory or administrative 	credentials. 	In Los 	Rios
division chairpersons 	were 	selected by 	the 	administration, 	while
division chairpersons 	in this District must 	be mutually acceptable
to 	the 	faculty and 	the 	administration. 	They are 	selected by 	the
faculty and 	confirmed by 	the 	administration; 	they 	are 	evaluated by
the 	faculty; 	and 	they 	can be 	removed by either 	the administration
or 	faculty.6 Unlike Los Rios, 	the Faculty Senate 	is 	open 	to
division 	chairpersons 	in 	the District. 	There was 	testimony 	that
division chairpersons 	considered 	it 	their 	role 	to 	represent 	the
faculty rather 	than 	the 	administration.7
Nor 	do 	division chairpersons 	in 	the District 	exercise 	independ-
ent 	effective 	control 	of 	supervisory 	functions 	over 	the 	faculty.
Rather, 	they routinely facilitate 	and collegially participate 	in
hiring 	and 	evaluation of 	faculty. 8 When 	evaluations 	reveal 	pro-
blems, 	they 	serve as 	faculty advocates by attempting 	to justify
or 	explain 	the problems 	to 	the 	administration. 	They may 	independently
evaluate part-time 	instructors who are 	in 	their 	field, 	but 	their
evaluations 	are accorded no more weight 	than 	those of other 	full-
time 	faculty. 	Chairpersons 	in 	the District 	do not 	exercise 	the
authority to resolve grievances. 	Nor do they, 	as 	in Los Rios,
recommend 	loss 	of pay 	for 	unexcused 	absences.
5 See Fairleigh Dickinson Univ. 	(1976) 	227 NLRB 2391 	[94 LRRM
1044].
6 Northeastern University 	(1975) 	218 NLRB 247, 	250 	[89 LRRM
1862, 1867] .
7Northeastern University, 	supra, 	218 NLRB at 	251 	[89 LRRM at
1868].
8 Rosary Hill College 	(1973) 	202 NLRB 1137 	[82 LRRM 1768].
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10
They have no 	independent 	effective 	control 	of 	the proposed
department budgets; 	supply, 	travel, 	and leave requests; 	class
assignments, 	class 	size, 	or room assignments. 	Thus 	they have no
9ability to assign or direct 	faculty work.9
Their 	involvement 	in 	supervision of faculty 	is 	either 	of 	a
routine nature, 	or if it 	involves 	their judgment, 	is 	conducted
collegially with the 	other 	faculty members 	of 	the 	division.
The mere 	fact 	that 	division chairpersons have 	secretaries 	does
not make 	them supervisors.10 Moreover, 	division 	secretaries 	do 	the
work of 	all 	division 	faculty 	to 	the 	extent 	that 	there 	is 	time 	once
division work is 	completed, 	and the only evidence 	in 	the record
indicates 	that 	division 	secretaries 	are 	selected 	collegially. 	In
these 	circumstances, 	the 	fact 	that 	chairpersons 	supervise 	classified
personnel 	in 	their 	daily activities 	does 	not 	establish chairpersons
as 	supervisors,for 	purposes 	of 	exclusion 	from a 	unit 	of 	certificated
personnel.11
As 	division 	chairpersons 	exercise no 	supervisory 	control 	over
the members 	of 	the requested unit, 	and only minimal 	direction of
the work of personnel not 	in 	the requested unit, 	they are not
supervisors within the meaning 	of the EERA and may not, 	on 	that
basis, 	be 	excluded 	from the requested unit.
FACTS
Parks 	and Recreation 	Instructors.
The 	Basic Peace Officer Program 	(hereafter 	Basic 	POP) 	was 	begun
by the Parks 	Department 	in 	September, 	1973 	and an Advanced POP 	course
was 	begun 	subsequently. 	Both programs 	are 	conducted at 	the Parks
Department's 	Center 	for 	Continuous 	Learning 	in Pacific 	Grove,
California. 	Basic POP was 	begun to 	provide peace officer 	training
to 	Parks 	Department personnel with duties 	requiring 	designation 	as
a 	State Parks 	Peace 	Officer 	under 	the mandate of 	the 	state penal
code. 	Standards 	for 	the 	training are uniformly 	set by 	the California
9Fordham, supra, at 1182.
10Fordham, supra at 1183.
1111Washington Unified School District (6/27/78) PERB Decision No.56;
See Fordham, 	supra, 	at 	p. 	1183; 	Fairleigh Dickinson, 	supra 	at p. 	1047.
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Commission on Peace Officer 	Standards 	and Training 	(hereafter POST).
Advanced POP was 	designed 	as 	a 	refresher 	for 	personnel 	with 	several
years 	experience.
A course 	syllabus 	for Basic POP 	is 	issued by 	the Parks 	Depart-
ment. 	The 	Basic POP 	course 	consists 	of 	240 hours 	of 	class 	time 	in
six weeks 	typically 	from 8:00 	a.m. 	to 	5:45 	p.m. 	five 	days 	a week.
The 	program includes 	classes 	covering 	such topics 	as 	Criminal 	Law,
Search and Seizure, 	Narcotics, 	Defense Tactics, 	Crowd Control,
Sex Crimes, 	Law of Arrest, Vehicle Code and Traffic Control, 	Crime
Scene Reporting, 	Juvenile Law and Proceedings, 	Collection and
Identification of Evidence, 	Disaster Training, 	as well as 	28 hours
of physical 	fitness 	training 	and 	16 	hours 	of 	"[t]arget 	practice
at 	an authorized range 	to 	improve...ability with firearms." 	Each
topic 	takes 	from one 	to 21 hours 	of 	class 	time.
One hundred and 	twenty-seven of 	the 	240 	class 	hours 	of 	the
Basic POP 	course 	are 	taught by District 	personnel 	consisting of
.
one 	instructor 	of 	record 	(whom the 	parties 	specifically 	stipulated
out of 	the unit) 	and about 	11 	of 	the Parks 	and Recreation Instructors
in question 	(hereafter POP 	instructors. 	"POP 	instructors"
refers 	only to 	the 	instructors 	provided by the District). 	The
instructor of record teaches 	topics 	totalling 27 hours, 	the POP
instructors 	share 	80 hours 	of 	instruction. 	The remaining 	class
hours 	are 	instructed by personnel 	not 	employed by 	the 	District:
Parks Department personnel 	instruct 125 hours, 	and Federal Bureau
of 	Investigation personnel 	instruct 	eight hours.
The 	Basic 	and Advanced POP 	courses 	are 	administered by 	the
Parks 	Department. 	Both courses 	are 	scheduled at 	the 	convenience
of 	the Parks 	Department without regard 	to 	the District's 	semesters.
At 	least 	one 	course has been begun mid-semester, 	and there was
testimony 	that 	the Parks 	Department 	could 	schedule 	a 	course 	during
August when 	summer 	school would have 	ended 	and no 	other 	District
course would be 	active. 	The 	curriculum of Basic 	POP was 	established
by 	the Parks 	Department 	to meet 	the 	standards 	of 	the POST require-
ments. 	The 	curriculum of 	the Advanced POP 	course, 	consisting of
80 hours 	in two weeks, 	was 	established by the Parks Department.
-10-

Examinations 	are 	conducted 	and 	graded 	solely by Parks 	Department
personnel. 	Examinations 	are 	devised by the District's 	instructor
of record 	in 	collaboration with Parks 	Department personnel. 	Sugges-
tions 	and 	inquiries 	of POP 	instructors 	are 	directed 	to 	the Parks
Department 	as well 	as 	to 	the District's 	instructor of record.
The 	District's 	instructor of record 	is 	responsible 	for hiring
and 	supervising 	the POP instructors 	of 	the District 	as well 	as 	for
registration of 	students 	and 	taking roll.
POP 	courses 	are open to 	the public, 	but were 	first 	listed 	in
the District 	catalog 	in 1976, 	and at most 	two or three non-Parks
Department 	students 	attend a 	course. 	Transferable 	institute 	credit
is given for the courses.
The District receives Average Daily Attendance 	(ADA) 	funds 	from
the 	state 	for attendance at POP 	courses 	as well 	as 	$15 per 	student
under 	a 	contract with 	the Parks 	Department. 	The District 	requires
the Parks 	Department 	to provide a minimum of 15 	students 	per 	course.
Typically 	25 	are provided.
Between January 1974 and June 1977, 11 Basic POP and 10
Advanced POP 	courses were 	given. 	Each POP instructor 	is 	responsible
for 	delivery of lectures 	and 	instruction on one 	or more 	of 	the 	topics
which make up 	the 	courses. 	They 	instruct 	a median 	of eight hours
per basic 	course 	and three hours 	per 	advanced 	course. 	Instruction
may amount 	to 	as 	little as 	a one hour lecture on one day, 	or 	as
much as 	40 	lecture hours on a number of days. 	This 	compares with the
48 	hours 	taught by other 	full- 	and part-time 	faculty 	in a 	three unit
course. 	In the 	11 	Basic POP 	courses 	given between 	1974 and 1977 	there
have been 	20 	POP 	instructors. 	Three have 	taught 	in 	each of 	the 	11
courses, 	two have taught 	in nine. 	The median number of courses
taught 	is 	four. 	The median total number of hours 	taught 	is 	20.5.
In the 	10 Advanced POP courses 	given between 1974 and 1977, 11
instructors have 	taught. 	Two 	have 	taught nine 	courses. 	The median
number of courses 	taught 	is 	3.5.
Unlike other 	full- and part-time 	instructors, 	POP instructors
do not take roll, 	keep attendance records, 	devise, 	administer or
-11-

grade examinations, 	or 	evaluate students 	in any way. 	They do 	turn
in a list 	of questions 	in 	their 	topic 	to 	the 	instructor of record
when first hired, 	and 	they devise their 	own 	lesson plan with the
approval 	of 	the District's 	instructor 	of record. 	They are required
to be credentialed. 	Unlike full-time 	instructors, 	they are not
required to provide conference 	time 	for 	students, 	and unlike 	other
part-time 	instructors 	they 	are not 	compensated 	if 	they 	do 	volunteer
conference time.
POP instructors 	are hired 	and 	fired 	on 	the 	independent 	judgment
of 	the District's 	instructor of record. 	His 	decision 	is not 	subject
to review by 	the District. 	Unlike other full- 	and part-time 	instructors,
POP instructors 	do not 	receive a 	"pink 	slip" 	notification of hire
from the District. 	Rather 	they are 	informed 	that 	they are hired by
the 	instructor 	of record 	first 	by phone 	and 	then by 	letter.
All 	POP instructors 	are 	employed 	full-time 	as 	peace 	officers 	in
local communities, 	several as 	the chief of police. 	In order 	to
teach, 	POP instructors must 	receive 	a 	release 	from their 	primary
employer 	although 	they 	are 	teaching 	on 	their 	own 	time.
POP instructors 	are 	evaluated by 	their 	students 	on Parks 	Depart-
ment 	forms which are 	turned 	into POST, 	not 	the District. 	The
District's 	instructor of 	record also 	evaluates 	the 	instructors 	by
sitting 	in on 	their 	classes. 	The 	instructor of record makes 	no
evaluation report, 	informs no one 	in the District of his 	conclusions,
and uses 	his 	evaluations 	in his 	absolute 	discretion on rehiring. 	No
other 	full- 	or part-time 	faculty members 	are 	evaluated 	in 	this
manner.
POP instructors 	are 	paid on 	the 	same 	"step 	and scale" calculations
of 	longevity and 	qualification 	as 	are other part-time 	instructors.
Sick 	leave 	is 	also 	available to POP instructors. 	POP instructors
have no District mailboxes, 	access 	to 	audio visual 	equipment,
access 	to District 	secretarial 	aid, 	have no 	contact with other
District 	faculty members 	unless 	they 	teach a 	course 	on 	the main
campus, 	and cannot 	select texts.
Unlike 	full-time 	faculty, 	POP 	Instructors 	do not 	participate
in the District's 	governance 	in any way. 	They do not participate
in the Academic 	Senate or 	serve on committees.
-12-

DISCUSSION
No 	evidence was 	presented 	on 	established practices 	of 	employees
or 	the 	effect of 	different 	units 	on 	the 	efficient 	operation of 	the
school 	district. 	We 	determine the appropriateness 	of 	the unit
solely by resolving 	the 	question of 	community of 	interest.12
The 	following 	criteria 	are 	considered by 	the 	Board 	in 	determin-
ing whether 	a 	community of 	interest 	exists 	between 	and 	among 	employees:
supervision, work functions, wages, method of compensation, 	hours,
employment benefits, 	qualifications, 	training and skills, 	contact
with other 	employees, 	integration with work 	functions 	of other
employees, 	and 	interchange with other 	employees.13 But 	community
of 	interest 	is 	not 	determined by going 	down a 	check 	list 	of 	these
factors. 	The point of the comparison is 	to reveal 	the 	interests
of 	employees 	and 	ascertain whether 	they 	share 	substantial mutual
interests in matters subject to meeting and negotiating.14
The 	interests 	of 	included 	employees must be mutual not 	distinct,
and substantial not 	tenuous. 	Thus, 	employees may be 	excluded from
12Sec. 3545(a) of the EERA provides:
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.
1 3 Kalamazoo Paper Box Corp.. 	(1962) 	136 NLRB 134 	[49 LRRM 1715];
Sae 	Sweetwater 	Union High School 	District 	(11/23/76) 	EERB Decision No. 	4
1 4 See Continental Baking Company 	(1952) 	99 NLRB 	777, 	782
[30 LRRM 1119J; 	Fifteenth Annual Report of NLRB, 	39 	(1950).
-13-

15
a particular unit 	either because 	their 	interests 	are 	separate 	and
apart 	from those of the 	employees 	in 	that 	particular unit, 15 or
because 	their 	interest 	in negotiable matters 	subject 	to 	the 	control
of 	the employer 	is 	so 	insubstantial 	that 	they do not 	share mutual
interests with other 	unit 	employees.
In this 	case, 	POP 	instructors neither 	share a community of
interest with members 	of 	the 	requested unit nor 	do 	they 	constitute
a 	separate 	appropriate unit.
As 	POP 	courses 	are 	scheduled by 	the 	Parks 	Department when 	it
wishes without regard to 	the 	semester 	system of 	the District, 	POP
instructors 	serve 	in a 	form of on-call 	status 	not 	shared by other
full- 	and part-time 	faculty. 	When 	on 	the 	job 	their 	responsibilities
are, 	as 	those of guest lecturers, 	narrowly circumscribed to 	class
preparation and 	lecturing. 	They never 	engage 	in 	student 	grading
and evaluation, 	nor 	are 	they required to 	provide 	conference 	time
with students. 	And, 	as 	they are not compensated for conference
time which they volunteer, 	they are not 	financially 	encouraged 	to
meet with 	students outside class 	hours. 	POP instructors 	share
none of the 	classroom administrative responsibilities, 	such as
maintaining attendance records, 	held by the 	remainder 	of 	the 	faculty
of the District. 	Moreover, 	what 	interest POP instructors 	and other
employees may 	share 	in 	the purely 	instructional 	duties 	of 	employment
is 	altered 	and diluted by 	the 	fact 	that 	POP instructors 	teach relatively
few hours; 	while 	full- and part-time 	instructors 	teach 48 hours 	in a
three unit 	course 	in one 	semester, 	POP instructors 	teach a median
of 	eight 	and three 	hours 	respectively 	in 	Basic 	and Advanced POP
courses. 	Between 	1974 	and 	1977 	POP instructors taught 	a median
total number of hours (20.5), less 	than one-half 	the hours 	of one
three unit course 	(48).
Hiring, 	evaluation, 	and termination are conducted completely
differently for POP instructors 	than 	for 	the remainder of 	the
District's 	faculty. 	POP instructors 	are 	subject 	to 	the 	completely
independent judgment 	of the 	District's 	instructor 	of record, 	while
15 See Kalamazoo, supra, at p. 137; NLRB v. Campbell Sons' Corp.
(4th 	Cir. 	1969) 	407 	F.2d 969 	[70 	LRRM 	2886].
-14-

all 	other 	faculty 	are 	governed by 	formalized 	procedures 	featuring
collegially 	reached 	decisions 	and 	some 	participation by 	the 	faculty
member.
Though POP instructors 	are paid 	for 	class hours 	on the 	same
salary 	schedules 	as 	other part-time employees, 	as 	already noted,
they are not 	paid 	for 	their volunteered conference 	time with
students 	as are other part-time 	instructors. 	Conversely, 	POP
instructors 	are 	paid 	the 	same hourly wage 	as 	other part-time
instructors 	despite 	the 	fact 	that 	they do not have out-of-class
student 	evaluation 	and 	classroom administrative 	duties.
POP 	instructors 	are 	isolated 	from the rest 	of the 	faculty of
the District. 	They do not 	encounter other 	faculty members 	unless
they teach other 	courses 	on the main campus, 	they have no District
mailbox, 	and do not participate 	in governance of the District 	at
any level.
Moreover, 	the POP program is 	fundamentally the Parks 	Department's
The 	Parks 	Department needed 	the 	program and 	conceived 	the program.
Now the Parks 	Department 	administers 	the program, 	and provides
instructors 	for much of 	the program. 	Though POP 	instructors 	are
employed by the District, 	it 	is 	the Parks 	Department which determines
when they will 	teach a course, 	what 	topics 	they will 	teach, 	and
where courses will be 	taught. 	It 	is 	the Parks Department which
provides classrooms and administrative services, as well as the overwhelming
number 	of 	students 	for 	the 	courses. 	Instructors 	and 	students 	are
evaluated by the Parks 	Department, 	Any complaints 	or 	concerns 	of
the 	instructors which 	involve 	the 	above matters must be 	and are
taken up directly with the Parks Department, 	for Parks, 	and only
Parks, 	controls 	those aspects of the work place. 	There was no
testimony that 	the District attempts 	to 	influence Parks' 	decisions
on 	these matters. 	In 	these 	circumstances 	the 	employment relation-
ship between the POP 	instructors 	and the District 	is 	seriously
attenuated.
The 	employment 	relationship 	is 	even 	further attenuated by 	the
fact 	that 	every POP instructor 	is 	primarily 	employed 	full-time 	as
a peace officer, 	some as 	chiefs 	of police 	in their communities,
-15-

and must 	receive 	a release 	from their primary employer 	in order 	to
teach. 	We held 	in Los Rios 	that 	the mere 	fact that 	some part-time
employees were employed elsewhere 	to 	some extent would not, 	by
itself, 	negate 	the 	interest of 	the entire group of part-time
employees 	in those matters 	subject 	to negotiations. 	But 	in 	the
instant 	case we are 	asked 	to 	include 	a group 	of part-time 	employees,
none 	of whom has 	a primary 	employment 	relationship with 	the District
and whose 	interest 	in matters 	subject 	to 	negotiations with 	the
District 	is 	circumscribed by 	the 	District's 	limited 	control 	over
their working conditions. 	In particular, 	none of the 	conditions
which might 	influence 	their 	primary 	employer's willingness 	to
release 	them to 	teach are 	in the control 	of the District: 	the
Parks Department 	controls 	the dates, 	hours 	and location of 	employment,
No 	POP 	employee 	in 	question has 	a primary employment 	relationship
with 	the District 	and 	each POP 	instructor's 	employment 	relationship
with the District 	is 	itself of a 	seriously attenuated nature. 	Even
assuming that 	there 	is 	a substantial 	interest 	in matters 	subject 	to
meeting 	and negotiating, 	these matters 	cannot be 	resolved by 	the
District which 	exercises 	such limited responsibility over 	them.
Also 	in Los 	Rios we 	ascertained part-time 	employees with a
continuing 	interest 	in 	community 	college 	teaching 	by 	determining
those 	employees who 	continually 	sought 	or 	obtained 	employment with
the 	community 	college 	rather 	than by 	comparing 	the number 	of hours
taught 	by members 	of 	the unit with the number 	of hours 	taught by
the employees 	sought to be included. 	But, 	as 	in this 	case, 	when
the 	employment 	relationship with the District 	is of a 	seriously
attenuated nature, 	instructors who 	return and 	teach 	in POP 	course
after 	POP 	course may 	thereby demonstrate 	a 	continuing 	commitment 	to
the 	POP program but 	certainly do not 	demonstrate 	an 	interest 	in
the affairs 	of the District.. 	Continuing commitment 	to 	the POP
program 	simply 	does 	not 	entail 	commitment 	to 	teaching 	in Monterey
Peninsula Community College. 	As 	a 	consequence, 	we 	do not 	find 	the
-16-

fact 	that 	the 	20 	POP 	instructors 	have 	taught 	a 	median number 	of 	four
Basic 	and 	3.5 	Advanced 	courses 	apiece 	persuasive 	evidence 	of 	their
commitment 	to 	teaching 	in 	the 	District .
In 	sum, 	POP 	instructors 	are not 	appropriately 	included 	in
a 	unit 	with other 	District 	faculty 	as 	they perform distinctively
narrow work 	functions, 	for 	relatively 	few hours, 	on an on-call 	basis,
with unique 	supervision, 	and 	in 	isolation 	from 	the 	remaining 	faculty
of 	the 	District. 	POP 	instructors 	do 	not, 	given 	the 	currently
seriously 	attenuated nature 	of 	their 	employment 	relation with 	the
District, 	constitute 	part 	of 	any appropriate 	unit 	for 	purposes 	of
negotiating 	terms 	and 	conditions 	of 	employment 	with 	the 	District.
ORDER
The 	Public 	Employment 	Relations 	Board ORDERS 	that:
(1) 	Division 	chairpersons 	are 	not 	supervisory employees 	within
the 	meaning 	of 	section 	3540.l(m) 	of 	the 	Educational 	Employment
Relations Act.
(2) 	Parks 	and 	recreation 	instructors 	are 	excluded 	from a 	unit
appropriate 	for 	meeting 	and negotiating .
(3) 	The 	regional 	director 	shall 	open and 	count 	the 	ballots
of 	division 	chairpersons 	and 	shall 	issue 	a 	revised 	tally of 	ballots .
r-- ,
{Bij 	Jerilou 	Cossack 	Twohey, 	MemberV
Raymond J. 	Gonzales, 	Member, 	concurring:
I 	do 	not 	believe 	the 	majority 	should have 	addressed 	the 	issue
of 	whether 	or not 	the 	division 	chairpersons 	are 	supervisory 	employees
within 	the 	meaning 	of 	the 	EERA. 	While 	the 	Board may have 	the 	power
to 	review~ 	sponte 	issues 	on which no 	timely 	exceptions 	are 	filed,
I 	believe 	the 	Board 	should 	exercise 	that 	power 	rarely, 	if 	at 	all .
Otherwise, 	the 	parties 	may be 	reluctant 	to 	file 	exceptions 	to 	one
part 	of 	a 	hearing 	officer ' s 	decision 	for 	fear 	that 	the 	Board will
-17-

change another part which they may not want 	to appeal. 1 Also, 	the
Board will 	Be 	reviewing hearing officer's 	decisions without 	giving
the parties 	an opportunity 	to provide 	input on 	the 	issues not
excepted to which, 	in my opinion, 	deprives 	the Board of a potentially
valuable 	source of legal 	analysis.
The majority 	cites 	National 	Labor Relations 	Board 	cases 	to
support its position. 	However, 	these 	cases involve parties'
agreements 	as 	to voter eligibility; 	they do not 	involve 	situations
in which 	an NLRB 	administrative 	law judge has 	resolved an 	issue 	to
which no party has excepted. 	Thus, 	these 	cases 	are more akin 	to
Centinela Valley Union High School District, 2 in which 	the Board
decided 	to 	stop 	accepting without 	question 	stipulations 	between
the parties. 	The present 	case 	is 	distinguishable 	in that PERB,
through its hearing officer, 	has made 	a decision on the 	status 	of
division chairpersons. 	I would have assumed, 	since no 	timely
exceptions 	on 	that 	issue were 	filed, 	that 	the hearing officer has
followed 	the 	EERA and 	established Board policy 	in making 	that
decision.
Hearing officer 	decisions 	to which no 	exceptions 	are 	filed
become 	final.3 The only distinction 	I 	see 	between 	a 	case 	in which
no 	exceptions 	are 	filed and a 	case 	in which an exception 	to 	an
unrelated issue is filed is procedural — in the latter case, the
Board has 	access 	to all 	issues while in the former, 	it does not. 	I
do not 	find 	this 	distinction 	compelling 	and would not 	review issues
on which no 	exceptions 	are 	filed.
1 Cal. Admin. 	Code, 	tit. 	8, 	sec. 	32305 provides that a proposed
decision 	shall become 	final 	unless 	a party 	files 	timely exceptions.
California 	appellate 	courts 	accept partial 	appeals 	of 	trial
court 	decisions. 	The parts not appealed become final, 	and the
appellate 	court has no jurisdiction to review those parts. 	6 Witkin,
Cal. 	Procedure, 	p. 	4126. 	In this way, 	an appellant can seek relief
without jeopardizing 	the benefit of a non-appealed portion. 	See
Comment, 41 Cal. L. Rev. 277.
2 (8/7/78) 	PERB Decision No. 	62.
3 Cal. Admin. 	Code, 	tit. 	8, 	sec. 	32305.
-18-

· 	The 	gratuitous 	nature 	of 	the majority ' s 	intervention 	is
particularly 	clear 	in 	this 	case. 	The . majority 	finds 	no 	substantive
error 	in 	the 	hearing officer's 	result 	or 	analysis; 	it merely 	rewrites
the 	facts 	and 	argument, 	while 	reaching 	the 	identical 	conclusion.
When 	the 	issue 	has 	not been appealed, 	this 	see ms 	to me 	to be 	a
meaningless 	exercise 	of 	the 	Board ' s 	power . 	I 	would 	therefore 	allow
the 	hearing officer's 	decision 	to 	stand . 	By 	this, 	I 	make no
state ment 	on 	the merits 	of 	the 	division 	chairperson 	issue; 	I 	simply
do 	not 	think 	the 	Board 	should have 	reviewed 	this 	issue.
I 	concur with 	the 	majority ' s 	decision 	to 	exclude 	the 	parks
and 	recreation 	instructors 	fro m the 	requested 	unit.
-19-

______________,)
STATE OF CALIFORNIA
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
In the Matter of:
MONTEREY PENINSULA COMMUNITY
COLLEGE DISTRICT,
Employer,
and
MONTEREY PENINSULA COLLEGE TEACHERS
ASSOCIATION, CTA/NEA,
Employee Organization,
and
FACULTY ASSOCIATION OF MONTEREY
PENINSULA COLLEGE,
Employee Organization.
)
)
)
)
)
)
)
)
)
)
)
)
)
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)
)
)
Case No. 	SF-R-481
CHALLENGED BALLOTS
Appearances: 	Keith V. Breon, Attorney (Breon, Galgani & Godino) for
Monterey Peninsula Community College District; Duane B. Beeson, Attorney
(Brundage, 	Beeson, Tayer & Kovach) for Monterey Peninsula College Teachers
Association, CTA/NEA; Elliot Roberts and Dr. Whitney Baines for Faculty
Association of Monterey Peninsula College.
Before Barbara C. Bardach, Hearing Officer.
PROCEDURAL HISTORY
Pursuant to a consent election agreement entered into by the Monterey
Peninsula Community College District 	(District), 	the Monterey Peninsula
College Teachers Association/CTA/NEA (MPCTA), and the Faculty Association
of Monterey Peninsula College (FAMPC) on May 17, 1977, a representation
election was conducted by the San Francisco Regional Office of the Educa-
tional Employment Relations Board (EERB) on May 31 and June 1, 	1977. 	The
parties stipulated that the following was an appropriate unit of certificated
employees:
- 1 -

The appropriate unit shall include all positions requiring
certification qualifications. 	Specifically excluding: 	Superintend-
ent/President, Administrative Deans of Student Personnel, Instruction,
Community Education, Associate Deans of Instruction, and Student Per-
sonnel, Assistant Dean of Student Personnel, Director of Continuing
Education, Director of Older Adults 	and Special Programs, Director
of Data Processing, Coordinator of Vol Ar, Hourly Coordinator of
Community Education, Fire Science Academy Coordinator, Coordinator
of Parks and Recreation, all classified supervisory, management, and
confidential employees. 	Also excluding Hidden Valley Music Seminar
Instructors, Apprenticeship Program Instructors, Part-time Work
Experience Coordinators, employees who teach only non-credit (900)
level courses, consultants and guest lecturers, Instructors of Admini-
stration of Justice courses 602, 606, 651 other than Instructor of Record.
and substitutes.
Prior to the election, and in the consent agreement, the parties stipulated
that all voters classified as Division Chairpersons, Fire Science Instructors
and Parks and Recreation Instructors at Asilomar would be challenged. 	It was
further stipulated that a unit clarification hearing would be held to
resolve the status of all persons in these job classifications should there
be insufficient challenges to affect the election. 	At the conclusion of
the election, the tally of ballots showed the following:
Approximate number of eligible voters 	412
Void ballots 	0
Votes cast for Monterey Peninsula
College Teachers Association
(MPCTA/CTA/NEA) 	176
Votes cast for Faculty Association
of Monterey Peninsula College
(FAMPC) 	167
Votes cast for no representation 	9_
Valid votes counted 	352
Challenged ballots 	10
Valid votes counted plus
challenged Ballots 	362
No party to the election received a majority of the total number of ballots
counted and challenged. 	Therefore, the challenged ballots were sufficient to
affect the results of the election and a hearing to determine the eligibility
status of the voters was scheduled to commence July 6, 1977.
— 2 —

The 10 votes 	challenged by all parties on the basis of disputed
positions mentioned earlier are:
Parks & Recreation 	Foster, 	Charles C.
Division Chairpersons 	Compton, 	B. 	Donald
Cummins, Lawrence W.
Jensen, Linley G.
Johnson, Dennis W.
Patrick, Owen G.
Revoir, Bernard C.
Stock, Morgan E.
Stevenson Sr., James C.
Trason, Winona B.
A hearing was held on July 6, 	13 and 22, 	1977 at which the parties
agreed that the hearing would serve to address the resolution of (1) whether
any of the above challenged ballots should be counted; 	(2) whether the job
classification of Division Chairperson is supervisory and therefore excluded
from the unit; and 	(3) whether the job classification of Parks and Recreation
Instructor at Asilomar should be included in the unit. 	At the commencement
of the second day of hearing on July 13, 1977, the parties further stipulated
that the decision resulting from this hearing on the classification of Parks
and Recreation Instructor at Asilomar would also apply to the classification
of Fire Science Instructor. 	This hearing officer accepts the agreement of
the parties to avoid a separate unit clarification hearing on this position
in this manner, despite the fact none of the Fire Science 	Instructors'1 cast
a challenged ballot.
ISSUES
1. 	Are division chairpersons supervisory employees?
2. 	Are parks and recreation instructors appropriately included in the
unit?
3. 	Are the persons in the above classifications who cast challenged
ballots eligible voters?
1This 	classification of part-time instructors has similar terms and conditions
of employment to the part-time instructors in Parks and Recreation.
- 3 -

DISCUSSION
The Monterey Peninsula Community College District is comprised of one
official campus in Monterey and a Community Education Program offered at
numerous 	locations in and around Monterey which includes evening, 	older
adult, summer, and community services programs, a special program at Ft. Ord
predominately for military personnel and their dependents, 	and a special
program at Asilomar predominately for State Parks and Recreation Department
personnel required to have peace officer status. 	The District employs
approximately 140 full-time certificated employees and from 270 to 320
part-time 	hourly temporary certificated employees. 	Approximately 125
certificated employees 	including regular full-time academic year instructors
and part-time hourly temporary instructors teach in the summer program.
The District also employes substitute employees.
DIVISION CHAIRPERSONS
FINDINGS OF FACT
There are nine formal divisions and one informal division. 	The informal
division is administered by the Director of Continuing Education, who was
excluded from the unit by agreement of the parties. 	The nine divisions
range in size from approximately 2 to 27 full-time faculty. 	It is the
position of the MPCTA that the nine division chairpersons, 	each of whom
cast a challenged ballot, are supervisory employees and should therefore
be excluded from the negotiating unit and thus have their challenged ballots
sustained. 	The District and the FAMPC maintain division chairpersons are
not supervisory and, as eligible voters, 	should have their challenged
ballots counted. 	The FAMPC also argued for inclusion on the basis of com-
munity of interest.
- 4 -

Division chairpersons receive from 20 to 50% release time to perform
administrative duties; the remainder is spent as a regular instructor.
They are paid on the regular faculty salary schedule and receive no extra
stipend. 	They are assigned to work an additional five days a year more
than the regular faculty to prepare for the new school year, as are foreign
student advisors and counselors. 	Like other faculty, 	they can teach an
overload or summer school for extra pay.
Chairpersons are 	elected by 	the faculty and confirmed by the super-
intendent/president. 	In almost every instance, only one name has been
forwarded for confirmation by the superintendent/president. 	Where more
than one name is submitted, 	the superintendent/president makes the selection.
Only one such instance was recalled, and in that case the two names submitted
were described as being equally acceptable to the faculty. 	Once, 	some years
ago, 	a nominee was rejected by the superintendent/president. 	No testimony
was presented showing a selection was made exclusively by the superintendent/
president.
Division chairpersons serve a three year term. 	They can be re-elected
to an unspecified number of terms or extended through lack of another
election. 	They are evaluated by the faculty. 	No administration representa-
tive participates in that evaluation, but the administration is apprised of
the results. 	They can and have been recalled by the faculty through a
no-confidence vote. 	It is unclear if the administration could also relieve
them of their duties since this has never happened. 	District policy does
not require division chairpersons to hold a supervisory or administrative
credential and none of those who testified holds one. 	Chairpersons have a
regular faculty office.
- 5 -

Chairpersons can and do belong to the Faculty Senate - in fact one
currently holds office and one has served as president. 	They also belong
to the Division Chairpersons' 	Caucus which is composed of the nine division
chairpersons, the head librarian, the head counselor, 	the dean of instruction
who chairs the meeting, and occasionally various other administrators. 	The
Caucus meets every other week unless cancelled due to lack of agenda. 	These
are primarily information sharing meetings and not involved in policy formu-
lation activities. 	The Caucus has not taken any formal vote on any administra-
tive matter.
Division chairpersons hold and chair division meetings, 	usually once
or twice a month. 	Information received by the chairperson at Caucus meetings
as well as divisional items such as the budget and curriculum matters are
discussed.
Chairpersons serve on faculty selection committees which include faculty
and administration representatives. 	Chairpersons coordinate and facilitate
the process: 	they chair the committee, suggest faculty or get volunteers
to serve on the committee, 	sometimes draft a preliminary job description,
receive applications, arrange the interview schedule and call the meetings.
The committee reviews applications and agrees on a screening process, 	the
rating scale to be used and the interview questions to be asked. 	The top
three candidates, selected on the basis of the consensus of the committees'
overall ratings, are then interviewed by the superintendent/president. 	The
final selection is made by agreement or vote of the committee and the
superintendent/president. 	Division chairpersons carry no more weight in
that process than any other committee member; 	in fact one division chairperson
testified that a candidate he strongly favored was not the one ultimately
selected by a screening committee he chaired.
- 6 -

The screening process for part-time faculty is done at 	the department
level. 	Some are one person departments. 	The division chairperson relies on
departmental expertise and merely rubber-stamps their recommendations to the
administration. 	Frequently a division chairperson may not even see the
candidate 	unless the vacancy exists in his/her own area of expertise. 	One
division chairperson testified he alone makes hiring recommendations 	in his
area of expertise, but indicated this would occur even if he were not the
division chairperson.
Division chairpersons serve on evaluation committees for contract
(non-tenured) instructors. The committee includes at least one,peer of the
evaluatee's choosing and an administrative representative. 	Division chair-
persons coordinate and facilitate the process by calling and chairing meetings,
making sure everything is done and deadlines are met. 	The committee agrees
on an evaluation procedure and makes recommendations to the evaluatee
through committee consensus.
Regular full-time (tenured) instructors are evaluated every other year.
A machine graded student evaluation is all that is required. 	A computer
print-out of the results goes to the dean of instruction, 	the division
chairperson and evaluatee. 	The individual then meets to discuss the evalua-
tion with the dean of instruction in the presence of the division chairperson
who functions as a faculty advocate in this process. 	Should suggestions for
improvement be made, 	the division chairperson has no responsibility to
follow-up on their application. 	Division chairpersons are also evaluated as
a faculty member.
Part-time 	(hourly temporary) 	instructors are evaluated by a full-time
faculty member who teaches the same course or by an administrator. 	All
faculty including division chairpersons are paid to conduct evening evalua-
tions. 	The written evaluations go directly to the community education
offices or 	to the dean of instruction's office.
- 7 -

Faculty members usually notify the division chairperson of absences.
They appoint their own substitutes. 	The division chairperson or, more
frequently, 	the division secretary notifies the administration of reported
absences. 	Chairpersons do not handle time cards or pay vouchers. 	These
and unexcused absences are handled by the dean of instruction's office.
No division chairperson who testified has ever recommended a loss of pay
for an unexcused absence, nor knew if they even had such authority. 	All
disciplinary problems are handled by 	the administration — none of 	those
testifying has ever issued a verbal or written warning or reprimand in a
supervisory 	capacity.
Chairpersons do not have the authority to transfer, 	suspend or ter-
minate an employee. 	Only the administration can take such actions. 	One
chairperson testified he has on several occasions effectively recommended
termination, but qualified this by saying he was merely supporting the
department recommendation in each instance and not 	independently recommending
such action.
The specific role of chairpersons in the grievance procedure, other
than to be informed at level one, 	is unclear. 	None testifying had ever
been involved in a formal grievance, 	though one was involved in an attempt
to resolve an apparent grievance. 	All contact in that instance was verbal
and no written records were maintained by that chairperson. 	All indicated
they felt it was their responsibility to attempt to resolve problems within
their divisions.
Division chairpersons are sometimes asked to approve leave requests, but
many faculty members go directly to the administration. 	One division chair-
person testified she routinely signs such requests and that one she signed
was once denied by the administration. 	Sabbatical leaves can and have also
been taken by division chairpersons.
- 8 -

The schedule is developed at the department level as are teaching load
and room/lab assignments. 	Division chairpersons are responsible for coordi-
nating, 	checking and forwarding these recommendations to the administration
which then carefully reviews and makes numerous changes in the recommenda-
tions. 	Instructors select their own texts and determine class size. 	If
there are problems, 	the division chairperson functions as a go-between with
the administration and faculty member to iron them out. 	Chairpersons
review and sign new course requests. 	Course proposals are reviewed by the
Curriculum Advisory Committee which is a faculty committee, 	then by the
Administrative Cabinet which consists of the superintendent/president
and the deans, and then by the Board if recommended by the Cabinet.
Irrespective of the division's or the Curriculum Committee's recommendations,
all requests still proceed to the Cabinet level for their review and possible
recommendation to the superintendent/president. 	One division chairperson
testified he alone effectively recommended a course expansion/staff addition
in his area of expertise. 	He indicated, however, that anyone with interests
and expertise in one particular subject area would push for changes 	in the
curriculum or additions in staff. 	In fact, faculty members have taken new
course proposals or schedule changes directly to the administration without;
even consulting him.
The budget is also developed at the department level. 	Division chair-
persons coordinate, check and forward these recommendations to the adminis-
tration which has the final say in all budget matters. 	The departments are
essentially responsible for their own supply budget, but purchase requi-
sitions and conference attendance request forms must be signed by the
division chairpersons. 	None who testified have ever refused to sign such
requests, viewing it as merely pro forma. 	All requests are subsequently
- 9 -

reviewed and occasionally denied by the chief accountant. 	Chairpersons
have the authority to transfer up to $100 from one fund to another.
There are a variety of classified positions within each division.
The division secretary who receives assignments from all division members
is supervised and evaluated by the division chairperson; 	all other classi-
fied personnel such as lab aides are supervised and evaluated by department
chairpersons. 	No testimony was presented showing division chairpersons
direct and assign work to other than the division secretary. 	In fact, 	from
all testimony received, 	it appears such authority is retained by the adminis-
tration, while division chairpersons possess only minor administrative
authority to request faculty members to perform already specified duties
and responsibilities.
CONCLUSIONS OF LAW
This is a question of supervisory status and not community of interest.
Government Code Section 3540.l(m) 	defines a supervisory employee as follows:
Supervisory employee means any employee regardless of job
description, having authority in the interest of the employer
to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or the responsibility
to assign work to and direct them, or to adjust their grievances, or
effectively recommend such action, if, 	in connection with the fore-
going functions, 	the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
Sweetwater Union High School District2 held that this section is written
in the disjunctive and that an employee need only possess one of the
enumerated functions or duties, or have the power to effectively recommend
such action, 	to be a supervisor within the meaning of the Act.
2 EERB Decision No. 4, November 23, 1976.
- 10 -

The Board has applied this section of the Act to certificated college
employees in only one previous case, Los Rios Community College District.3 J
In that case, 	the Board ruled that this supervisory definition as applied to
certificated community college employees must be viewed in light of long-
standing traditions of collegiality and shared authority within institutions
of higher education.4 	Based on the following, 	the Board found that the
division chairpersons' 	duties were clearly supervisory 	requiring an
allegiance with the administration not required of other faculty: 	selection
by the administration; 	payment of a substantial stipend; 	assignment of between
60 and 90% of their time to perform administrative duties; 	ineligibility to
participate in the faculty senate; responsibility for resolving disciplinary
problems and maintenance of grievance and attendance records; ability to
recommend a loss of pay for unexcused absences, termination or transfer;
appointment of substitutes; assignment of room/lab facilities; 	determination
of class size; 	and assignment of classes through consultation with the
faculty. 	In the instant case, a similar finding cannot be made.
There is no current job description for division chairpersons. 	Testi-
mony of current and past division chairpersons and the administration revealed
many distinctions from the role of division chairpersons in Los Rios. 	These
distinctions are compelling: 	election by the faculty to serve as spokesperson
to the administration; 	direct responsibility to the faculty who evaluates and
is able to recall them; 	lack of any additional stipend; release time of be-
tween 20 and 50% to perform administrative duties with the remainder of their
3EERB Decision No. 18, June 9, 1977,
4 Ibid, at p. 15,
- 11 -

time, between 50 and 80%, spent teaching; eligibility to participate in
the faculty senate; no exercise of substantial control over critical aspects
of faculty teaching responsibilities; no authority to determine class size and
location; and no responsibility for processing grievances or maintenance of
..·.:,
attendance records. 	In a somewhat similar case dealing with high school department
heads, administrative activities which were routine in nature and required little,
5	if any, exercise of independent judgment, were not deemed supervisory by the Board.5
In the instant case, the record did not reveal that the execution of any of the
following division chairpersons' activities involved the use of independent judgment
holding and chairing meetings, coordinating the hiring, evaluation, scheduling and
budgetary processes; signing new course proposals, leave requests and purchase
requisitions; and acting as a communication liaison between the faculty and
the administration. 	Similarly, serving as a conduit of administration infor-
mation and participating in the Chairpersons' 	Caucus which is chaired by an
administrator cannot be construed as making division chairpersons an arm of
6
the administration. 	In fact, each of the division chairpersons and adminis-
trators who testified agreed that division chairpersons function as faculty
advocates. 	In the words of one division chairperson:
"I have no authority. 	They (the faculty) can tell me to
go to hell, and some do..."
Based on all of the foregoing, 	it is clear that division chairpersons
handle their administrative duties in a routine manner without the use of
independent judgment, 	function as faculty advocates and not an arm of the
administration, and do not exercise or possess any supervisory authority
found in Section 3540.l(m).
5 See New Haven Unified School District, EERB Decision No. 14, March 22, 1977,
p. 7.
6 Ibid, at p. 7.
- 12 -

PARKS AND RECREATION
FINDINGS OF FACT
The challenged ballot is that of Charles Foster, a part-time hourly
temporary instructor in Parks and Recreation. 	The MPCTA urges the inclusion
in the negotiating unit of Mr. Foster and other Parks and Recreation
instructors like him based on a community of interest. 	It is the position
of the District that Parks and Recreation instructors should be excluded from
the unit based on a lack of community of interest, their similarity to other
stipulated excluded categories such as substitutes and summer school employees,
and because of the separate and unique nature of the Parks and Recreation
program. 	The FAMPC originally took no position, but, upon the enlargement
of this issue the second day of hearing to include Fire Science instructors
in the outcome7, subsequently joined the position espoused by the District.
The Parks and Recreation program at Asilomar was established in 1972
under the auspices of the Monterey Peninsula Community College District at the
request of the State Parks and Recreation Department. 	The program provides
peace officer training which is mandated by the State for all Parks and
Recreation personnel required to have peace officer status, such as park
rangers. 	It is administered jointly by the District and the Parks and
Recreation Department: 	a coordinator/instructor of record employed by the
District and a training director and three coordinators employed by the
Parks and Recreation Department. 	A contract calls for payment of approxi-
mately $5.00 per student by the Parks and Recreation Department to the
District for academic and accreditation responsibilities.
There are two major programs offered on a fiscal year rather than
semester basis: 	a Basic Program for ranger trainees and an Advanced Program
of refresher courses for those with 3-4 years of job experience. 	They are
7 See above p. 3.
- 13 -

numbered Administration of Justice 607 and 608 respectively. 	Ordinarily
these would be included in the Social Sciences Division where other Adminis-
tration of Justice courses are found. 	However, the faculty in that division
showed no interest in the program and thus it is included in the one informal
division under the direction of the Director of Continuing Education. 	This
informal division is a collection of largely technical-vocational courses
and programs offered only in the evening division and not in other divisions.
There are numerous 	600 level courses in almost every division of the
College District. 	These are credit institute courses which are developed by
divisions within the District. 	The Parks and Recreation program, however,
was not developed in this manner.
The Basic Program consists of 240 clock hours of instruction over two
three week periods of 40 hours per week. 	The curriculum is established by
POST, 	the California Commission on Peace Officer Standards and Training.
The Commission was established in 1957 to standardize the training and require-
ments for law enforcement agencies throughout the State of California. 	The
Advanced Program consists of 80 clock hours of instruction over a two week
period. 	It is not certified by POST and its curriculum is determined by Parks
and Recreation personnel. 	A State Parks and Recreation Department training
syllabus containing rules and regulations, course outlines and objectives,
an agenda and expectations is provided to each student. 	The College District
has no involvement with its preparation.
Each program is offered on a year-to-year basis depending upon the needs
of the Parks and Recreation Department. 	The courses appear in the published
schedule of District courses and is open to the public, 	though few attend.
Class size ranges between 35 and 40. 	There is no question of cancellation
since the Parks and Recreation Department controls the assignment of students.
- 14 -

The caliber of the students is higher than usual since most already possess
a B.A. or B.S. degree and intend 	to fulfill employment requirements. 	Eight
units of credit are offered by the College District for the Basic Program
and three units for the Advanced Program. 	Testimony revealed that the
program has continued on a year-to-year basis since 1972. 	Continuation of
the program is planned for the fall of 1977 and expansion of the program
is currently contemplated.
Three separately funded groups provide instruction in the Basic Program:
Parks and Recreation personnel are responsible for 113 hours; the Federal
Bureau of Investigation provides 20 hours; and the Monterey Peninsula Community
College District handles the remaining 107 hours of instruction. 	The Monterey
Peninsula Community College District coordinator/instructor of record who is
excluded from the unit as a supervisor, is responsible for 27 hours of lecture
himself and hires approximately 11 local law enforcement experts to assist
him with the remaining portion provided by the District. 	These part-time
hourly temporary instructors are all fully employed elsewhere and must be
released by their employer to teach on their own time. 	They are required to
hold a community college credential and two witnesses indicated they hold a
special or designated subject credential.
A similar program was begun earlier at Fort Ord in 1969 to provide POST
training for military personnel interested in law enforcement careers. 	The
curriculum was essentially the same but with a different emphasis. 	Many of
the instructors with the current Parks and Recreation program also taught at
Fort Ord under the same instructor of record as at Asilomar. 	The POST program
was part of a larger program of various community college offerings for
military personnel and their dependents. 	It was deleted in 1974 due to the
arrival of the Seventh Army and a shift in the basic training to permanent
party situation; other courses from several Monterey Peninsula Community
College District divisions continue to be offered at Fort Ord.
- 15 -

CONCLUSIONS OF LAW
Government Code Section 3545(a) provides:
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.
.
In Los Angeles Unified School District,8 the Board adopted several
standards established by the National Labor Relations Board to assist in
interpreting community of interest criteria. 	They include qualifications,
training and skills, job functions, method of wages or pay schedule, hours
of work, fringe benefits, supervision, frequency of contact with other
employees, integration with work functions of other employees, and
interchange with other employees.9
In Los Rios Community College District
10 the Board considered the
question 	of whether full- and part-time instructors shared a sufficient
community of interest to be included in the same negotiating unit.
Part-time instructors in Los Rios performed essentially the same duties
and had the same skills, working conditions and rights as full-time
instructors. 	The curriculum was also substantially in accord with that
taught by full-time instructors. 	In addition, their level of compensation
was directly related to that of full-time instructors. 	Detailed analysis
of the roles and responsibilities of the two groups caused the Board to
8EERB Decision No. 5, November 24, 1976.
9See Kalamazoo Paper Box Corporation, 136 NLRB 134, 49 LRRM 1715 (1962).
10EERB Decision No. 18, June 9, 1977.
- 16 -

conclude that full- and part-time instructors were appropriately members
of the same unit. 	A key factor in that decision was continuity of employment
which the Board felt demonstrated commitment to and interest in the community
college's objectives.
In the instant case, 	the parties established a unit consisting of all
positions 	(part- and full-time) requiring certification qualifications with
various enumerated exclusions and three disputed categories.
11 At the hearing, much
testimony centered around the District's attempt to prove exclusion of
part-time Parks and Recreation instructors based on the "unique" nature of
the Parks and Recreation program in that it provides specialized, 	State
mandated training to students who, 	for the most part already possess a
Bachelor's degree and who must attend the training to fulfill an employment
requirement. 	Parallels between the stipulated exclusions of substitute,
summer school and guest lecturer (casual) 	employees were also argued by the
District.
Numerous decisions of the: Board have held that substitute and. summer school
employees along with adult education, 	CETA and home teachers are appropriately
excluded from a regular certificated unit based on the separate and unique
nature of their program, a lack of re-employment rights, 	employment on an
as-needed basis, or the tenuous and short-term nature of such employment.
12
The criteria the Board found to be determinative and which led to the
characterization of "separate nature" included the following: 	separate
administration, funding, hiring process, and purpose from the regular program;
no expectation of continued employment; different credential requirements,
hours of work, benefits and salary schedules; unique job qualifications,
11 11See above p. 2.
12
Belmont Elementary School District, EERB Decision No. 7, December 30, 1976;
Petaluma City Elementary and High School District, 	EERB Decision No. 9,
March 1, 1977; Lompoc Unified School District, EERB Decision No. 13, March 17,
1977; and New Haven Unified School District, EERB Decision No. 14, March 22,
1977.
- 17 -

subjects, and students taught; few if any transfer opportunities; and little
contact with the regular program staff.
A close look at the work functions of the included part-time instructors
and those in question must be made to make an appropriate unit determination.
They need not be compared to those exclusions stipulated to by the parties
since such agreements may not necessarily reflect the precedents of the Board
and thus carry no weight in determining a community of interest. 	A comparison
of the included and disputed part-time instructors based on the Board adopted
NLRB standards follows:
Qualifications
Both groups are expected to have expertise in their area of instruction.
Credentials are required of these as well as of summer school and substitute
employees.
Training Skills
Part-time instructors are selected primarily on the basis of expertise.
Outside employment often provides them with the expertise required to teach
in a specialized program in a community college.13 All of the Parks and
13Section 87275 of the Education Code (as reorganized, April 30, 1977) and Title V
of the California Administrative Code set out the various academic requirements
for attaining community college credentials. 	(1) Teachers who teach in excess
of 12 units must hold a Master's degree. 	(2) Two distinct credentials are
available for those seeking to teach less than 12 units of community college
classes. 	The prerequisites for obtaining a temporary("Special Limited Services")
credential are (a) 	graduation from high school or possession of a General
Education Development Diploma, and 6 years of appropriate occupational
experience, or (b) possession of an A.A. degree, or completion of 60 semester
units of course work, and four years of appropriate occupational experience
For a non-temporary ("Limited Service") 	credential, 	the requirements are
(a) 	graduation from high school, and six years of appropriate occupational
experience, plus 60 clock hours or four semester units of teacher training;
(b) possession of an A.A. degree, or completion of 60 semester units of course
work, and four years of appropriate educational experience, plus 60 clock hours
or four semester units of teacher training; 	(c) possession of a B.A. degree,
plus two years appropriate occupational experience; or (d) four years of higher
education, plus certification by the district in each subject in which the
applicant has adequate training and experience to teach. Cal. Admin. Code, Title
5, Sections 52572-73, 52560-64. (3) For non-credit instructors, the prerequisites
for obtaining a credential 	("Certificate of Qualification") 	are four years of
higher education (120 semester units), or four years of occupational experience,
plus certification by the district that the applicant has adequate training and
experience to teach the classes for "which the 	applicant 	to be employed.
Cal. Admin. Code, Title 5, Section 52600.
- 18 -

Recreation part-time instructors are employed elsewhere. 	In Los Rios the
Board held: 	"We do not believe that the mere fact that some part-time
instructors are employed elsewhere, standing alone, negates their interest
in those matters within the scope of representation at this District for the
time they are employed by the District."
Job Functions
Essentially, the primary job function of both groups is similar: 	to
provide instruction in an area of expertise. 	The difference, if indeed it
is one, lies in the purpose of the program in which instruction is given
and the student population receiving that instruction.
Numerous 	600 	level credit institute courses exist in almost every division
of the College District. 	The two courses in question, Administration of
Justice 607 and 608, are found in the informal division of mainly technical-
vocational courses and programs administered by the Director of Continuing
Education under the supervision of the Dean of Community Education.
The Dean of Community Education estimated that between 10 and 20%, perhaps
more, of the total community education program consists of short-term graded
courses. 	He indicated that there are any number of courses whose format is
such that they are designed to meet the needs of the specific audiences or
target groups that the college works with. 	The 600 level programs, which are
not required to go through the same curriculum development process as other
district programs, are predominantly taken from existing curriculum and
expanded on, or gone into in some depth, to meet those specialized community
needs. 	Some of the subject matter taught in Administration of Justice 607
and 608 is found in the on-campus Administration of Justice courses numbered
602, 606 and 657 which are included in the Social Sciences Division. 	Each
is a three unit course with a minimum of 48 hours of instruction. 	All
three courses are under an instructor of record who has used approximately
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fourteen instructors to assist him in a manner similar to that of those
part-time instructors in dispute. 	The instructor of record is responsible
for class rolls, exams and grades. 	He was included in the unit by consent
of the parties and the instructors excluded as guest lecturers.
Method of Wages
There are two pay schedules for part-time hourly temporary employees.
All part-time instructors including substitutes and summer school instructors
are paid on one or the other depending upon their qualifications.
Hours of Work
Generally, part-time instructors teach one three unit course per semester
which meets for three hours a week per semester totalling a minimum of 48 hours
of instruction. 	Those in the Parks and Recreation category teach anywhere from
1 	to 21 hours per eight unit Basic Program course and between 3 and 5
hours each per three unit Advanced Program course. 	In the 1976-77 academic
year two Basic Programs were offered between 	February 1977 and May 1977 and
three Advanced Programs between October 1976 and May 1977. 	Thus the total
number of hours per instructor ranged between 8 and 54 hours for all
five courses. 	Admittedly, the average total number of hours taught by the
group in question is less than those of most part-time instructors.
Most District courses are offered on a semester basis, but some overlap.
The Parks and Recreation courses are taught on a fiscal year basis and offered
only when requested by the Parks and Recreation Department.
Notices of employment also differ. 	All part-time instructors in the
unit receive a "pink slip" from the District which serves as a written
confirmation of employment. 	A letter from the coordinator/instructor of
record is received by the part-time instructors in question.
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Fringe Benefits
All part-time instructors are eligible for pro-rata sick leave, 	including
those in dispute.
Supervision
Part-time instructors are included in one of the nine formal divisions
or the informal division headed by the Director of Continuing Education.
Evaluations are required of all part-time instructors by a full-time faculty
division member. 	However, those in the Parks and Recreation group 	are not
evaluated on behalf of the District, but for the State Parks and Recreation
Department and POST. 	The coordinator/instructor of record testified that,
although he makes no evaluation for the District, retention of his instructors
is 	somewhat based on the other evaluations he makes.
The hiring process for these two groups appears to differ: 	the part-time
instructors in question are exclusively hired by the coordinator/instructor
of record; 	other part-time instructors are usually hired after divisional
interviews and an interview with an administrator, although at Fort Ord, the
coordinator sometimes exclusively hires instructors himself.
Frequency of Contact with Other Employees
Because of their off-campus location, only those part-time Parks and
Recreation instructors who also teach elsewhere for the District have any
contact with other unit employees.
Integration with Work Functions of Other Employees
As shown, both groups have essentially the same job function. 	Numerous
duties and responsibilities are inherent to the performance of that function.
These responsibilities must be analyzed as they compare with those of part-time
instructors appropriately included in the unit.
a) 	Registration and Attendance - All but part-time instructors in the Parks
and Recreation category have this responsibility.
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b) 	Lesson Plans - Both groups of part-time instructors are responsible for
lesson plans. 	The curriculum for the group in question, however, is not
established by the District.
c) 	Exams - Part-time instructors in the unit are responsible for exam
preparation and grading. 	The part-time instructors in question are
only responsible for submitting a set of questions on their particular
specialty 	to 	the coordinator/instructor of record. 	There is no
requirement that these questions be used in an exam.
d) 	Grades - Unlike other part-time instructors, 	the group in question does not
issue grades.
e) 	Class Size - District policy requires a minimum enrollment of 15 for a
class to be held which applies to the group in question as well. 	However,
classes in the Parks and Recreation Department are controlled through
assignment to the class by the department and none are cancelled.
f) 	Tenure - In Los Rios the Board held that, 	since tenure rights for
part-time evening faculty are in a state of flux, no controlling weight
would be accorded tenured status in reaching a decision about community
of interest.
14 Thus no determination will be made on this item.
g) 	Office Hours - The instructors in question are not required to hold
nor eligible to be paid for office hours. 	Other part-time instructors
are also not required to hold office hours, but can be paid to do so.
h) 	Office Space - Neither category of part-time instructors has assigned
office 	space.
i) 	Committees/Meetings - Neither group is eligible to participate on faculty
committees nor required to attend division/department meetings.
14Supra, at page 10
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j) 	Student Conference Time - Part-time instructors are not required to
provide 	this.
k) 	Mailbox - All but the Parks and Recreation part-time instructors have
mailboxes.
1) 	Administration Bulletins and Memorandums - All but the part-time group
in question receive these.
m) 	Support-Services - These are available to the instructors in question
through the coordinator/instructor of record. 	All other part-time
instructors have direct access to clerical, 	copying and printing services.
n) 	Audio-Visual Services - The District provides these services to all but
the group in question which is provided such services by the Parks and
Recreation Department.
Interchange with other employees
This 	occurred only to the extent some Parks and Recreation instructors are
also part-time instructors in other District courses.
In its decisions, 	the Board has shown that it places primary emphasis on
the job functions 	of the employees in question and on an expectation of continued
employment.15 	The above detailed comparison based on NLRB standards yields
two main distinctions between the included part-time instructors and those in
question: 	the required record keeping and class administration responsibilities;
and the number of hours of instruction. 	Neither of these factors alone substantiates
the argument for exclusion. 	In addition to these factors, the District and the
FAMPC argue that the part-time instructors in question have a short-term tenuous
15Pittsburgh 	Unified School District, EERB Decision No. 3, October 14, 1976;
Sweetwater Unified School District, EERB Decision No. 4, November 23, 1976; Los
Angeles; and Belmont Elementary School District, EERB Decision No. 	7,
December 30, 1976.
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employment relationship similar to substitutes and summer school employees.
Further similarities to other programs such as CETA, adult school, and summer
school were also argued on the basis of the separate nature of the program.
Thus, a review of Board decisions which have excluded those groups of employees
on the basis of community of interest should provide a resolution to the
question at hand.
In Belmont, Petaluma, Oakland Unified School District,16 and Los Rios the
Board considered the unit placement of both long and short-term substitutes.
On the basis of differences in the employment conditions and no expectancy of
future employment, 	the Board concluded a community of interest did not exist
between regular and substitute employees. 	In Belmont, Petaluma and New Haven
the Board held that summer school teachers should be excluded from the regular
unit because of the short-term and tenuous nature of their employment and because
of the separate nature of the summer school program. 	In the instant case, all
part-time instructors have essentially similar working conditions, 	though somewhat
different job functions. 	They 	do, 	however, have a reasonable expectation of
continued employment. 	Although no re-employment rights are guaranteed these
instructors, past practice reveals steady and continued employment of a small
nucleus of instructors, many of whom are from the Ford Ord program which began
in 1969.
In New Haven, Petaluma and Lompoc the Board considered the CETA, adult
school and home teacher programs. 	The Board found in New Haven that CETA
instructors shared no community of interest with the regular certificated staff.
They teach a very specialized program for unemployed students with separate
funding and supervision; have different pay and benefits; and have no guarantee,
practice or policy regarding re-employment. 	Adult school teachers in Petaluma
16 EERB Decision No. 15, March 28, 1977.
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and New Haven were 	found by the Board to be similar to substitute employees;
to have different credential requirements, pay structure and fringe benefits; 	to
be supervised separately from the regular staff; 	and to have different tenure
rights. 	All these factors again led the Board to conclude that these instructors
were part of an entirely separate program from the regular day school program.
Home teachers in Petaluma and New Haven were also found by the Board to be similar
to substitutes in that they are called on an as-needed basis and have no re-
employment rights. 	Their working conditions and terms of employment were found
to have little in common with regular instructors and thus were excluded from
the regular unit.
Each of these cases dealt with the "separate nature"criterion. 	The instructors
in the instant case, however, differ from these employees in several significant
areas: 	their employment is not short-term or tenuous; their credential requirements,
fringe benefits, and method of pay are similar to other part-time instructors; their
working conditions and terms of employment, 	though not as formalized as those of
other part-time instructors, 	are related; and their continued expectation of
employment is not dissimilar to that of other part-time instructors in the unit.
They do teach specialized courses, but so do many other part-time instructors.17
Their line of supervision is separate though not entirely different from that of
other part-time instructors,as evidenced by the Fort Ord program where the co-
ordinator functions in a similar manner to that of the supervisor at the Asilomar
program.
In light of their similarities to other part-time instructors, 	the reasonable
expectation of continued employment, and the continuing nature of the Parks and
17Testimony 	and exhibits revealed that a large variety of special interest courses
are offered such as "Photography and Film Production," "In Search of Self,"
"Real Estate License Preparation" and "What Every Child Needs for Good Mental
Health."
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Recreation program, 	these part-time instructors do share a community of
interest with other part-time instructors in the unit. 	As in Los Rios,
however, because of their minimal hours, only those part-time instructors who
continually, semester after semester, teach in a community college, thereby
demonstrating their commitment to and interest in its objectives, are
appropriately included in the unit. 	Therefore, those part-time instructors
who taught the equivalent of three or more semesters during the last six
semesters inclusive are included in the negotiating unit. 	No evidence was
offered with respect to the "efficient operation" or "established practices"
criteria and thus no determination will be made on these issues.
PROPOSED ORDER
It is the Proposed Decision that:
1. Division Chairpersons are not supervisory within the meaning of
Government Code Section 3540.l(m) of the EERA.
2. Part-time hourly temporary Parks and Recreation Instructors who have
taught at least the equivalent of three semesters of the last six semesters
i n c l u s i v e 1 8 a r e a p p r o p r i a t e l y i n c l u d e d i n t h e unit.1 9
3 . 	T h e f o l l o w i n g e m p l o y e e s 	c a s t i n g c h a l l e n g e d b a l l o t s a r e e m p l o y e e s
w i t h i n t h e u n i t e l i g i b l e 	t o v o t e and 	t h e i r b a l l o t s 	s h a l l b e c o u n t e d :
Donald B. Compton, Lawrence W. Cummins, Linley G. Jensen, Dennis W. Johnson,
Owin G. Patrick, Bernard C. Revoir, Morgan E. Stock, James C. Stevenson Sr.,
Winona B. Trason.
18 18As used in this Order, the word "inclusive" means that an instructor who is.
presently teaching for a third semester, under this formula, would also be
considered eligible.
19 19By stipulation of the parties, Fire Science Instructors who meet this criteria
are also included in the unit.
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4. 	Challenged voter Charles C. 	Foster is an eligible voter if he taught
at least 	the equivalent of three semesters of 	the last six inclusive.
The parties have seven 	(7) 	calendar days 	from rece~pt of 	this proposed
decision in which to file exceptions 	in accordance with section 33380 of the
Rules and Regulations. 	If no party files 	timely exceptions, 	this proposed de -
cision will become a 	final order of the Board on November 29, 	1977 and a notice
of decision will issue from the Board. 	At 	that 	time the regional director is
further instructed to open each of 	the challenged ballots determined to be valid
herein, 	to file a 	revised tally of ballots consistent with this decision, 	and
to certify an exclusive representative of 	the employees 	in the office - technical
unit or to conduct a 	runoff election as appropriate ..
Dated: 	November 17, 	1977
Barbara C. 	Bardach
Hearing Officer
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