Rio Hondo Community College District (PERB 0087E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RIO 	HONDO COMMUNITY COLLEGE DISTRICT,
Employer,
v.
RIO 	HONDO 	FACULTY ASSOCIATION, 	CTA,
Employee 	Organization.
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) 	Case 	No. 	LA-R-111
PERB 	Decision 	No. 	87
January 25, 	1979
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Appearances; 	John J. 	Wagner, 	Attorney 	(Wagner 	and Wagner) 	for
the 	Rio Hondo Community College District; 	Robert M. 	Dohrmann,
Attorney 	(Schwartz, 	Steinsapir, 	Dohrmann & Krepack) 	for
Rio 	Hondo Faculty Association, 	CTA.
Before Gluck, 	Chairperson; 	Cossack Twohey and Gonzales, 	Members.
DECISION
On April 	1, 	1976, 	the Rio Hondo College Faculty
Association, 	CTA 	(hereafter 	Association) 	requested 	recognition
as 	exclusive 	representative 	of 	a 	negotiating 	unit 	consisting 	of
all 	certificated 	employees 	in 	the 	Rio 	Hondo Community College
District 	(hereafter 	District), 	excluding 	supervisory,
management 	and 	confidential 	employees. 	The 	District 	doubted
the 	appropriateness of 	the 	requested 	unit, 	and 	took 	the
position 	that 	the 	unit 	should 	be 	limited 	to 	full-time
certificated 	employees.1l
1In 	this 	decision 	use 	of 	the 	term 	"part-time" 	instructor
or 	faculty 	refers 	to 	those 	employees 	who 	teach 	60 	percent 	or
less of a 	full-time 	teaching 	load 	(Ed. 	Code 	sec. 	8748 2
(formerly 	sec. 	13337.5)). 	The District 	referred 	to 	these as
"temporary" 	employees. 	About 10 	of 	the 	approximately 	547
instructors 	who 	teach 	fall 	and/or 	spring 	semester 	in 	the
District 	taught 	greater 	than 	a 	60 	percent 	load 	but 	were
employed 	for 	less 	than a 	full 	load. 	These 	instructors 	appear
from 	the 	record 	to 	be 	designated 	as 	"regular" 	or 	"contract"
employees. 	Instructors 	teaching a 	full 	load 	or 	greater 	than
60 	percent 	load 	are 	herein 	referred 	to 	as 	regular 	or 	full-time
faculty.

On November 	2, 	1977, 	a hearing officer of 	the Public
Employment Relations Board 	(hereafter 	Board) 	issued 	a proposed
decision which 	found 	the 	following 	unit 	to be 	appropriate:
...all 	certificated 	employees 	including 	all
full-time 	and 	part-time 	regular 	or 	contract
certificated 	plus 	part-time 	certificated
employees 	who have 	taught 	at 	least 	the
equivalent 	of 	three 	semesters 	of 	the 	last
six 	semesters 	inclusive 	and 	excluding 	all
management, 	supervisory 	and 	confidential
employees, 	substitutes 	and summer 	school
instructors.
The 	District 	excepted 	to 	that 	portion of 	the 	hearing
officer's 	proposed 	decision 	that 	included 	part-time 	certificated
instructors 	in 	the 	unit. 	It 	also objected to 	the 	fact 	that one
hearing 	officer 	conducted 	the 	hearing 	and 	a different 	hearing
officer 	issued 	the 	proposed 	decision.
While 	the 	exceptions 	to 	unit 	composition 	before 	the 	Board
relate 	only 	to 	the 	inclusion of 	part-time 	instructors 	in 	a 	unit
of 	all 	certificated 	employees, 	the Board 	has 	jurisdiction over
the 	question of 	appropriateness 	of 	the 	total 	unit.2
Therefore, 	while 	no exceptions 	to 	the exclusion of 	summer 	school
2 G O V . 	Code sec. 	3540 provides, 	in pertinent part:
It 	is 	the purpose of 	this 	chapter 	to promote
the 	improvement 	of personnel management 	and
employer-employee 	relations 	within 	the
public school 	systems 	in 	the State of
California 	by providing 	a 	uniform basis 	for
recognizing 	the 	right 	of 	public 	school
employees 	to 	join organizations 	of 	their 	own
choice, 	to be 	represented by such
organizations 	in 	their 	professional 	and
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instructors 	were 	presented, 	it 	is 	a proper 	subject 	of 	scrutiny
for 	the 	Board.3
employment 	relationships 	with 	public 	school
employers, 	to 	select 	one 	employee
organization 	as 	the 	exclusive 	representative
of 	the 	employees 	in 	an 	appropriate 	unit, 	and
to 	afford 	certificated 	employees 	a 	voice 	in
the 	formulation 	of 	educational 	policy.
(Emphasis 	added.)
Gov. 	Code sec. 	3541.3(a) 	states:
The 	board 	shall 	have 	all 	of 	the 	following
powers 	and 	duties:
(a) 	To determine 	in 	disputed 	cases, 	or
otherwise 	approve, 	appropriate 	units.
Gov. 	Code 	sec. 	3545(b)(1) 	states:
(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.
3While 	party's 	failure 	to 	except 	to 	an 	issue 	serves 	as 	a
waiver 	of 	that 	party's 	right 	to 	except, 	it 	does 	not 	preclude
the 	Board 	from 	reviewing 	unappealed matters. 	Cal. 	Admin. 	Code
tit. 	8, 	32320(a) 	provides:
(a) 	The 	Board 	itself may:
(1) 	Issue 	a 	decision 	based 	upon 	the 	record 	of
hearing, 	or
(2) 	Affirm, 	modify or 	reverse 	the 	proposed 	decision,
order 	the 	record 	reopened 	for 	the 	taking 	of 	further
evidence, 	or 	take 	such 	other 	action 	as 	it 	considers
proper.
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FACTS
Part-Time 	Instructors 	- 	Fall 	and 	Spring 	Semester
Rio Hondo College 	is 	a community college 	offering Associate
of Arts 	and Associate of Science 	degrees, 	and 	also has 	a
transfer 	program of 	lower 	division 	courses 	leading 	to 	a
Bachelor 	of Arts 	at 	other 	institutions 	of 	higher 	learning.
Average 	daily 	attendance 	was 	approximately 19,061 	in April
1976. 	The 	college operates 	both 	day and 	evening sessions, 	many
of 	the 	courses 	being offered at 	both, 	during fall, 	spring and
summer 	semesters.
The 	college 	employs 	244 	full-time, 	and 303 	part-time
instructors, 	exclusive of 	summer 	semester 	faculty. 	The
majority of 	the 	regular 	year 	day courses 	are 	taught 	by
full-time 	instructors 	and 	the majority of 	the 	evening 	courses
are 	taught by part-time 	instructors. 	However, 	part-time
instructors may 	teach 	in the 	day session, 	and 	full-time
instructors may 	teach 	in the 	evenings. 	Also, 	full-time and
part-time 	instructors may 	teach 	different 	sections 	of 	the 	same
course 	(each 	"section" 	of 	a course 	covers 	the 	same subject
material 	but 	is 	taught 	at a different 	time and place).
Photography 15-A, 	for 	example, 	was 	taught 	in three different
sections; 	two 	by full-time 	instructors 	and one 	by a part-time
instructor. 	Students 	enrolled 	in 	credit 	courses 	earn 	the 	same
credit 	irrespective of 	whether 	the 	course or 	section 	is 	taught
by a full-time or 	part-time faculty member, 	or whether 	it 	is
taught 	in 	the 	fall, 	spring or 	summer 	semester. 	Theoretically,
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it 	would 	be possible 	for 	a student 	to earn an Associate of Arts
or Associate 	of 	Science 	degree 	by 	taking 	courses 	only 	from
part-time 	instructors.
While 	only 	the 	full-time 	instructors 	are 	required 	to
maintain formal 	office 	hours, 	both 	full-time 	and part-time
instructors 	are 	available 	to confer 	with students 	upon request.
There 	are 	faculty meetings 	at 	both 	campus 	and 	departmental
levels. 	These 	are 	held during 	the 	day hours. 	There may be
only 	two or 	three 	campus-wide meetings 	a year. 	While 	part-time
instructors 	are 	not 	required 	to attend 	them, 	they are welcome.
Departmental 	meetings 	are 	held more 	often 	and 	part-time
instructors 	attend 	these 	"quite 	frequently."
While 	only 	full-time 	faculty 	serve 	on 	the 	college
curriculum committee, 	part-time faculty may, 	and do, make
comments 	and 	submit 	proposals 	to 	this 	committee 	in 	the 	same way
as 	do full-time 	instructors.
When 	a campus 	committee was 	established 	to develop a 	report
for 	an 	accreditation 	team 	reviewing 	the 	college programs, 	a
part-time 	instructor 	served on 	this 	committee.
At 	the 	time of 	the 	hearing, 	membership in the academic
senate was 	limited 	to full-time 	instructors. 	However, 	an
academic senate 	committee 	report, 	completed 	in spring 	1976,
recommended 	to 	the 	full 	academic senate 	that 	its 	constitution
be 	amended 	to provide 	for membership or 	representation of
part-time 	instructors. 	This 	recommendation was 	passed
unanimously 	by 	the 	academic 	senate.
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Part-time 	as 	well 	as 	full-time faculty appear 	to be
eligible 	for 	funds 	for 	participating 	in professional
activities. 	A part-time 	faculty member 	who 	attended 	a 	"field
trip" 	was 	authorized 	to receive 	expenses.
The 	evaluation 	procedures 	for 	full-time 	and 	part-time
instructors 	are similar, 	but not 	identical. 	There are two
basic 	phases 	of 	evaluation for 	a full-time 	instructor. 	During
the 	first 	two probationary years, 	the department 	chair plays 	an
active 	and substantial 	role 	in 	the 	evaluation process. 	After
successfully completing 	probation, 	full-time 	faculty 	are
generally 	evaluated 	under 	a 	self-evaluation format. 	Part-time
instructors 	are 	evaluated at 	least once 	a year. 	The
departmental 	chair 	also plays 	the principal 	role 	in 	these
evaluations.
The compensation of part-time faculty is, 	in effect, 	50
percent 	of 	the 	full-time 	instructors' 	compensation for 	any
given 	position on 	a salary schedule or 	any given 	assignment.
Both 	full-time 	and 	part-time 	instructors 	receive 	additional
compensation 	for 	additional 	academic 	degrees.
Hiring 	procedures 	for 	full-time 	and 	part-time 	instructors
generally differ. 	The 	selection of 	full-time 	instructors
involves 	a 	publicized 	search 	and 	a multi-level 	selection
process 	involving 	a 	screening committee 	and 	the 	ultimate
decision of 	the 	upper 	college 	hierarchy. 	Part-time 	instructors
are 	usually selected by 	the 	department 	chair 	alone, 	although 	a
search may 	be 	conducted 	for 	a 	part-time 	instructor 	with 	special
qualifications.
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Summer 	school. 	There 	is 	a 	six-week summer 	semester 	in
which 	both 	day 	and 	evening 	classes 	are 	offered. 	There may 	also
be 	a summer 	post-session 	following 	the 	six-week 	summer
session. 	Though 	the 	record 	is 	limited on these sessions, 	a
District 	witness 	testified 	that 	the 	course 	he 	taught 	during 	a
regular 	semester 	was 	also given 	in a post-summer 	session. 	Both
full-time 	and 	part-time 	instructors 	teach 	summer 	school
courses. 	The 	factors 	affecting who 	is 	assigned 	to 	teach 	summer
school 	are 	availability of 	the 	class, 	enrollment 	and 	the 	desire
to teach 	the 	class. 	At least some of 	the courses 	offered
during 	the 	summer 	session 	are 	also offered 	during 	the 	fall
and/or 	spring 	semesters. 	Students 	can 	earn the 	same 	degree
credit 	taking 	summer 	courses 	as 	by 	taking 	regular 	year 	courses.
A memorandum 	of 	understanding 	between 	the 	District 	and 	the
Association for 	the 1976-77 	fiscal year, 	entered 	into June 	30,
1976,4 	provided 	for 	faculty compensation 	and 	applied 	"to 	all
Rio Hondo College 	certificated 	employees, 	full 	and part 	time,
excluding management 	and 	executive 	positions." 	This 	agreement
provided 	for 	a 	6.1% 	salary 	increase 	for 	all 	the 	above-described
employees 	who 	continue 	employment 	from 	the 	1975-76 	to 	the
1976-77 	fiscal 	year. 	The 	three-page memorandum of
understanding made 	no 	specific 	exclusion other 	than 	the
above-mentioned.
4This 	agreement 	apparently was 	voluntarily 	entered 	into
as 	an 	"interim" 	measure pending 	resolution of 	the 	unit
dispute. 	The District 	states 	its 	purpose was 	to 	"preserve 	the
status quo."
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DISCUSSION
The 	Inclusion of 	Part-Time 	and Full-Time 	Instructors 	in 	the
Same 	Negotiating 	Unit
In 	fashioning 	an 	appropriate 	negotiating 	unit 	of
instructors, 	the Board 	is 	guided by section 3545 of 	the
Educational Employment Relations Act 	(hereafter 	EERA) .5
Section 3545(a) 	reads:
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.
Based 	on 	an 	examination of 	the 	evidence 	adduced 	at 	the
hearing, 	the Board determines 	that 	part-time 	instructors 	are
appropriately 	included 	in 	a 	negotiating 	unit 	with 	full-time
instructors. 	This 	conclusion 	is 	reached based on 	a finding
that 	both 	full-time 	and part-time 	instructors 	possess 	a
community 	of 	interest 	based on 	conditions 	of 	employment 	which
indicate 	that 	they 	share 	similar 	negotiating 	interests. 	In
Sweetwater 	Unified 	School District 	(11/23/76) 	EERB Decision
No. 	4, 	the 	Board 	indicated 	that 	community of 	interest must be
ascertained 	by 	analyzing 	a 	variety of 	interest factors, 	and
recognized 	that 	prominent 	among 	these 	is 	job 	function. 	In 	the
present 	case, 	the Board 	finds 	persuasive the 	fact 	that 	the
principal professional 	responsibility, 	or 	job function, 	of Rio
Hondo 	college 	instructors 	is 	to teach students 	at 	the 	community
college 	level 	in 	the 	classroom setting. 	Full-time 	and
5The 	Educational 	Employment 	Relations Act 	is 	codified 	at
Gov. Code sec. 	3540 	et seq. 	Hereafter, 	all statutory
references 	are 	to 	the Government Code 	unless 	otherwise
indicated. 0

part-time 	instructors 	teach 	identical 	courses 	awarding
identical 	course 	credit. 	A 	related 	element of 	the 	learning
process 	is 	the 	opportunity 	for 	students 	to confer 	with 	their
instructors 	individually, 	apart 	from the 	in-class 	lecture, 	and
it 	is 	noted 	that 	both 	full-time 	and 	part-time 	faculty 	are
available 	for 	student 	conferences. 	While 	the 	availability of
full-time 	instructors 	is 	more 	structured 	and 	perhaps 	greater
because 	they hold office 	hours, 	this 	is 	a distinction more of
degree 	than 	kind 	and 	is 	accordingly 	not 	controlling.
The 	evidence 	also 	indicates 	that 	part-time 	faculty
participate 	in 	non-instructional 	elements 	of 	the 	college's
academic program. 	They 	can 	and 	do 	attend 	faculty meetings,
especially at 	the 	departmental 	level. 	They also provide 	input
into 	the 	curriculum planning process 	and may, 	and 	on 	at 	least
one 	occasion did, 	serve 	on a course 	evaluation committee.
It 	is 	also 	significant 	that both 	part-time 	and probationary
full-time 	instructors 	are 	evaluated 	under 	a procedure 	in which
the 	department 	chair plays 	a 	substantial 	role 	in 	reviewing 	the
instructor's 	performance.
While 	the 	regular 	pay 	for 	part-time 	instructors 	differs
from that of 	full-time 	instructors, 	there 	is 	a direct
relationship between 	the 	two 	(one 	a percentage 	of 	the 	other)
and 	both 	are 	afforded 	additional 	compensation 	based 	on
acquisition 	of 	additional 	academic 	degrees.
The 	Board 	accords 	little 	weight 	to whether 	non-full-time
faculty 	are 	eligible 	for 	tenure. 	Evidence was 	presented 	that
the 	Superior 	Court 	(Superior 	Court 	for 	County of 	Los Angeles,
9
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Peremptory Writ of Mandamus No. 	CA 000 	307) 	held that part-time
instructors 	in 	this District may be 	eligible for 	permanent
status. 	This 	decision 	apparently has 	been 	appealed 	by 	the
District. 	As 	the Board 	noted 	in Los Rios Community College
District 	(6/9/77) 	EERB Decision No. 	18, 	there is conflicting
authority 	on 	this matter 	among California District Courts 	of
Appeal, 	and 	the 	issue 	is 	now before 	the California Supreme
Court.6 For 	this 	reason, 	the 	Board 	declined 	to 	assign
controlling 	weight 	to 	the 	factor 	of 	tenure 	in 	evaluating
community of 	interest.
Also 	in Los Rios, 	the 	Board decided 	that 	both full-time and
part-time 	instructors 	should 	be 	in 	the 	same negotiating 	unit.
There, 	as 	here, 	the evidence did not 	establish a precise or
total 	overlapping 	of 	interests. 	The Board 	considered 	and
balanced 	all 	community of 	interest 	factors, 	and 	reconciled 	them
in favor 	of 	not 	dividing 	the 	negotiating 	interest 	of 	the
part-time 	and 	full-time 	instructors 	by 	excluding 	part-time
instructors 	from the unit. 	The 	rationale of 	that part 	of 	the
Los 	Rios 	decision 	is generally applicable 	to 	the 	present 	case:
Finally, 	while differences 	do exist 	in the
working conditions 	of 	full- 	and part-time
instructors, 	their 	job duties 	and
responsibilities 	are 	virtually 	identical.
In many cases, 	both teach 	identical 	courses;
both 	counsel 	students 	in the 	same fashion.
Both 	are 	evaluated 	in 	a 	similar 	fashion,
6 See Fervner v. Harris 	(1975) 	45 Cal.App.3d, 	363, 	368;
Vittal v. 	Long 	Beach Unified 	School 	District 	(1970)
8 	Cal.App.3d 	112; 	Coffey v. 	Governing Board of 	San Francisco
Community College District 	(1977) 	66 	Cal.App.3d 	279; 	Peralta
Federation of 	Teachers 	v. 	Peralta Community College District,
(1977) 	California Supreme Court 	hearing 	granted 6/23/77.
1
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often 	by 	the 	same people, 	and 	enjoy many of
the 	same benefits 	and privileges. 	Many of
those 	fringe 	benefits 	not 	shared with
full-time 	instructors 	are 	legitimately 	the
subject of negotiations. 	Moreover, 	while
some of 	the part-time 	instructors 	have 	their
primary 	employment 	relationship 	elsewhere,
many 	have 	their 	primary 	employment 	with 	the
District 	either 	as 	full-time 	instructors 	or
solely as 	part-time 	instructors. 	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.
Section 	3545(a) 	also requires 	that 	the Board 	consider
efficiency of 	operations 	and 	established practices 	in
determining 	an 	appropriate 	unit. 	The only related 	evidence
found 	in 	the 	record 	is 	the 	opinion 	testimony of 	a District
witness.
If we pursue 	the Vogel 	decision 	[writ of
mandamus 	to 	reclassify 	part-time 	instructor
who 	taught 	a 	specified 	number 	and 	frequency
of 	semesters 	or 	quarters 	as 	either 	a
contract or 	regular 	employee] 	in reduction
of 	staff 	and 	in 	the opinion 	admittedly of,
of 	a hearing officer, 	it would have been,
this 	college 	would 	have 	been 	directed 	to
reassign 	an 	instructor 	who 	is 	currently 	a
full-time 	contract 	employee 	to 	a position
which 	although 	he 	is 	credentialed 	to 	teach
in our 	opinion 	is 	not qualified 	to teach
and, 	therefore, 	would be to the detriment of
the 	students, 	in order 	to retain the
part-time 	instructors. 	This would be one of
the 	administrative 	problems 	that we would
encounter 	if 	indeed we 	had 	essentially
competition 	between 	part-time 	temporaries
under 	1337.5(sic) 	and 	the 	full-time
instructors.
The 	Board 	finds 	no 	relevance 	in this 	testimony. 	The
possibility 	that 	acquisition 	of 	tenure 	rights may 	require 	the
District 	to effect 	assignments 	of 	unqualified 	instructors 	is,
11

if 	true, 	unrelated 	to the matter 	of placement 	in a particular
representation 	unit. 	Presumably, 	that 	legal 	obligation would
exist 	irrespective 	of 	whether 	part-time 	faculty 	are 	placed 	in
the same unit 	as 	full-time instructors, 	in a separate unit or
in no unit.
Furthermore, 	the opinion expressed by 	the witness 	is 	by his
own 	admission 	credited 	to 	have 	little weight. 	He 	also 	stated
regarding 	possible 	administrative 	problems 	in 	a combined 	full-
and 	part-time 	unit:
Again 	it's 	speculation. 	I'd 	rather 	not
answer 	anymore on 	that 	question.
Nothing 	in 	the 	record 	supports 	a finding 	that 	placing
part-time 	instructors 	in 	a 	unit 	with 	full-time 	instructors
would 	adversely 	impact 	on 	the 	efficiency of 	the District's
operations.
Recently, 	the 	Board 	in Hartnell Community College District
(1/2/79) 	PERB Decision No. 	81, 	revised its formula governing
inclusion of 	part-time 	employees 	in 	a 	unit.7 Since 	all
active members 	of 	the 	classification 	are 	affected 	by the
salaries, 	hours, 	and terms and conditions of 	employment 	that
are within the 	scope of 	negotiation, 	and 	by the terms 	of 	the
negotiated 	agreement, 	the 	Board 	decided 	to 	include 	all
employees 	on 	the 	payroll 	irrespective of 	previous 	periods 	of
employment. 	The 	Board will 	adhere 	to that policy 	in this 	case.
7Previously, only part-time 	employees 	who 	taught 	in 	three
of 	the past 	six semesters were 	included 	in the 	unit, 	Los Rios
Community College District 	(6/9/77) 	supra, 	EERB Decision No. 	18,
12

Summer 	Session 	Instructors
Application 	by 	the 	Board 	of 	the 	unit 	determination 	criteria
set forth 	in section 3545(a) 	also indicates 	that summer
semester 	instructors 	should 	be 	included 	in 	the 	unit 	with 	full
and 	part-time 	instructors. 	The 	hearing 	officer 	excluded 	summer
semester 	instructors 	in reliance on Los Rios. 	In that 	case,
the 	Board 	decided 	that 	summer 	school 	teachers 	lacked 	sufficient
community of 	interest 	with 	regular 	full-time 	instructors. 	To
the 	extent 	that Los Rios 	establishes 	a presumption that 	it 	is
inappropriate 	to include summer 	school 	teachers, 	it was
reversed 	in Hartnell. 	The proper 	test for 	the 	inclusion or
exclusion of 	certificated 	instructors 	is 	found 	in 	section
3543.5: 	community of interest, 	efficiency of operations 	and
representation 	history.
The 	evidence presented 	in 	this 	hearing 	indicates 	that 	the
principal 	job function of 	instructors 	who 	teach 	the summer
semester 	is 	to 	teach 	students 	who 	are 	enrolled 	in 	the
educational 	program of 	the 	college. 	Almost 	all 	of 	the
instructors 	who 	teach 	summer 	semester 	are 	also 	regular 	year
instructors. 	Summer school 	courses, 	like regular year 	courses,
are 	offered 	in 	both day 	and 	evening 	sessions 	and 	also 	like
regular 	year 	courses, 	are 	available for 	credit. 	Many of 	the
courses 	are, 	in fact, 	the same as 	regular year courses. 	In
sum, 	the 	summer 	semester 	is 	an 	integral part 	of Rio Hondo
Community College's 	educational 	program.
The 	Board 	recognizes 	that 	although 	the 	record 	in this 	case
fails 	to 	contain 	complete 	information 	regarding 	all 	community
13

of 	interest 	factors, 	there 	is 	sufficient 	evidence 	to 	find 	a
fundamental 	community 	of 	employment 	and 	negotiating 	interests
between 	those 	who 	are 	Rio Hondo's 	instructors 	in 	the 	summer
semester 	and 	those 	who are 	the 	instructors 	in 	the 	fall 	and
spring 	semesters.
Similarly, 	there 	is 	no evidence 	indicating 	that 	efficiency
of 	operations 	or 	established practices 	argue 	for 	exclusion of
summer 	semester 	instructors. 	Furthermore, 	the 	inclusion of
those 	teaching 	summer 	school 	only 	with 	regular 	teachers 	who
also 	teach 	summer 	school may 	result 	in 	eliminating 	a
potentially major 	negotiations 	problem 	for 	the 	employer. 	If
summer 	school 	teachers 	are placed 	in a separate 	unit, 	the
following 	questions must 	inevitably 	arise:
1. 	Are 	regular 	teachers 	who 	teach 	summer 	school 	eligible
to 	negotiate 	their 	summer 	school wages, 	hours 	and employment
terms 	in the 	"regular" 	unit, 	the summer 	school unit, 	or both?
2. 	Would 	the 	District be obligated 	to negotiate 	with 	their
regular 	faculty 	in 	two 	separate 	units?
3. 	If 	the summer 	school 	issues are bifurcated, 	that 	is, 	if
summer 	school 	issues 	are 	negotiable 	in 	the 	regular 	unit 	for
regular 	teachers 	who 	teach 	summer 	school 	and 	also 	negotiable
for 	summer 	school 	"only" 	teachers 	in a separate 	unit, 	would 	the
District be 	required 	to bargain on a different basis, 	and
possibly with 	two different 	employee 	organizations, 	on 	the 	same
subjects?
While 	the Board 	does 	not 	intend 	by 	this 	decision 	to
indicate 	its 	answer 	to 	any of 	these questions, 	they suggest 	the
14

strong 	possibility 	that 	efficiency 	of 	District 	operations may
actually be 	advantaged 	by 	the 	inclusion of 	summer 	school
teachers 	in the 	"regular" 	certificated 	unit.
As 	noted 	in the 	statement of 	facts, 	the only evidence of
established practice 	is 	the 	existence 	of 	the 	agreement 	executed
in 1976 	which 	applied to all 	certificated employees, 	except
managerial personnel. 	If 	little or 	no weight 	is 	to be accorded
this agreement, 	as 	the District urges, 	it is nevertheless 	true
that 	no 	evidence 	of 	past 	practice was 	produced 	to 	contradict
the 	finding of 	sufficient 	community of 	interest.
The District 	has 	offered 	no 	evidence 	that 	its 	interests
have 	been prejudiced by 	the 	substitution of 	hearing officers.
The Board 	finds 	no reason 	to 	hold 	differently 	here 	than 	it 	did
in Fremont Unified School District 	(4/5/78) 	PERB Order 	No.
Ad-28, 	in which we 	concluded that 	the 	hearing officer who
renders 	the 	proposed decision need not 	be 	the 	same 	hearing
officer 	who 	heard 	the 	evidence.
ORDER
The 	Public Employment Relations Board ORDERS 	that:
(1) 	An 	appropriate unit for 	negotiation in the Rio Hondo
Community College District 	shall 	include 	all 	certificated
employees 	of 	the District who 	are 	regular 	full-time 	and
part-time 	teachers, 	including 	those who 	also teach summer
school, 	and all 	teachers 	who teach summer 	school 	only; 	except
management, 	supervisory 	and 	confidential 	employees 	shall 	not 	be
included 	in the 	unit.
Within 10 workdays 	after 	the 	employer 	posts 	the Notice of
15

Decision, 	the 	employee 	organization 	shall 	demonstrate 	to 	the
regional 	director 	at 	least 	30 	percent 	support 	in 	the
negotiating 	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.
Voluntary 	recognition 	requires 	majority 	proof 	of 	support 	in 	all
cases. 	See Government Code 	section 	3544 	and 	3544.1. 	The 	date
used 	to 	establish 	the 	number 	of 	employees 	in 	the 	above 	units
shall 	be 	the 	date 	of 	this 	decision 	unless 	another 	date 	is
deemed 	appropriate 	by 	the 	regional 	director 	and 	noticed 	to 	the
parties. 	In 	the 	event 	another 	date 	is 	selected, 	the 	regional
director 	may 	extend 	the 	time 	for 	employee 	organizations 	to
demonstrate 	at 	least 	30 	percent 	support 	in 	the 	negotiating 	unit.
By: 	Harry 	Gluck, 	Chairperson 	J e r i l o u Cossack 	Twohey, 	Member
Raymond J. 	Gonzales, 	Member, 	dissenting in part:
I 	dissent 	from 	the 	majority's 	decision 	to 	place 	all 	part-time
community 	college 	instructors 	in 	a 	unit 	with 	full-time 	instructors
16

I 	see no 	reason 	to 	repeat
11 in 	detail my reasons 	for believing
that part- 	and 	full-time 	teachers 	not only 	do not 	share a
community of interest, 	but have conflicting 	interests. 	The
facts 	in 	this 	case 	do not 	differ 	significantly 	from those 	in
Los Rios, and 	I 	adhere 	to my dissent 	in 	that 	case 	and to my
elaboration of 	that position 	in Hartnell.
The majority places 	great weight 	on 	the 	fact 	that part-
and 	full-time 	instructors have a 	common job 	function. 	While 	I
agree 	that job 	function 	is 	important 	in 	determining 	community
of interest, 	I 	disagree with the majority's 	almost 	total 	reliance
on this 	single 	factor. 2
First, 	the job 	functions 	of part- 	and full-time 	faculty 	do
differ. 	While both groups 	teach courses, 	full-time 	instructors
are 	also 	expected 	to 	take 	an active 	role 	in academic 	governance;
they are 	expected 	to 	attend 	faculty meetings 	and participate 	on
committees. 	These 	activities 	are part 	of 	their job. 	Part-time
instructors, 	on the other hand, 	are not expected to play any
role 	in academic 	governance. 	While 	they are not prohibited 	from
some 	participation and 	some 	do 	participate voluntarily, 	involve-
ment 	in academic 	governance 	is 	not 	a job 	function of part-time
teachers.
1See Los 	Rios 	Community College District 	(6/9/77) 	EERB
Decision No. 	18, 	dissenting opinion; 	Hartnell 	Community College
District 	(1/2/79) 	PERB Decision No. 	81, 	dissenting opinion.
2The majority 	decision 	also 	mentions 	wages 	and 	evaluation
procedures. 	However, 	these 	factors may also be used to 	illustrate
the 	dissimilar interests 	of the 	two 	groups. 	Thus, 	while the wage
rates may be 	related, 	part-time 	instructors 	receive much less 	pay.
Also, 	part-time 	faculty are paid on an hourly basis, 	while 	full-
time 	faculty 	are 	salaried. 	Evaluation procedures 	differ 	radically
for 	part-time 	and regular 	full-time 	instructors.
17

Second, 	the 	purpose of examining 	community of 	interest 	in
making unit 	determinations 	is 	to 	group 	together 	employees with
mutual 	interests 	in 	terms 	and 	conditions 	of employment 	so 	that
conflicting 	interests 	do 	not 	impede 	effective 	representation.
Job 	function has 	been 	considered 	a 	factor 	in 	determining
community of 	interest because 	it 	is 	often 	indicative 	of 	such
mutual 	interests. 	But job 	function 	is 	only one 	factor among
several. 	In this 	case, 	any 	similarity of interests 	stemming
from a 	common job 	function 	is 	outweighed by 	disparate 	interests
arising 	from the 	differences 	in 	employment 	conditions 	of part-
and 	full-time 	instructors.
Such 	differences 	are 	likely 	to 	cause 	part- 	and 	full-time
instructors 	to have 	different negotiating priorities, 	especially
with respect 	to economic 	issues. 	As 	an example, 	part-time
3
teachers who work 	full-time 	elsewhere 	may not 	be 	interested 	in
receiving fringe benefits, 	such as health plans, 	from the
District 	since 	they may 	already receive 	such benefits 	at 	their
regular place of employment. 	Thus, 	they may push for putting
more money 	into wages 	at 	the 	expense 	of additional 	fringe
benefits. 	Full-time instructors, 	on the other hand, 	may place
a much higher priority on 	fringe benefits.
These 	differences 	may 	cause 	an elected exclusive 	representa-
tive 	difficulties 	in attempting 	to 	represent 	the 	unit 	fairly.
J The record indicates 	that 	at 	least 	two-thirds 	of 	the 	part-
time 	instructors 	are 	employed 	full-time 	elsewhere.
18

Such 	difficulties 	may be 	exacerbated by 	the 	fact 	that 	full-time
teachers, 	those 	whose primary employment relationship 	is with
the 	District 	and who 	thus 	have 	the 	largest 	stake 	in 	collective
negotiations with the District, 	are 	in the minority 	in the unit
4created by 	the majority 	decision. 	Obviously, 	any 	exclusive
representative 	is 	going 	to 	give high priority 	to 	the 	concerns
of the majority part-time 	teachers; 	failure 	to 	do 	so would be
to risk 	decertification. 	Of necessity, 	different 	concerns 	of
full-time 	instructors will be 	given 	lesser 	emphasis.
Employment relations 	cannot 	be 	enhanced by 	creating 	a unit
in which 	the 	economic 	concerns 	of a 	core 	group of 	employees 	are
likely 	to 	be 	subordinated 	to 	the 	substantially 	different 	concerns
of a more peripherally employed group 	of 	employees. 	Yet 	the
majority has 	created such a unit. 	I believe 	that 	a unit 	including
both part- 	and 	full-time 	instructors 	is 	contrary 	to 	the overall
purpose 	of 	the EERA 	in 	that 	it 	does 	not 	"promote 	the 	improvement
of personnel 	management 	and 	employer-employee 	relations."55
I 	also 	dissent 	from the majority's 	decision 	to 	include
summer 	school 	teachers 	in the unit with full-time 	teachers. 	In
the 	first place, 	no party excepted 	to 	the hearing officer's
decision 	that 	summer 	school 	teachers 	should be 	excluded 	from the
unit. 	While 	the Board may have 	the power 	to examine 	all 	aspects
4 At 	the 	time of the hearing, 	there were 	244 	full-time 	and
303 part-time 	instructors.
4
55 Government Code 	section 	3540.
19

of a 	case before 	it, 	including 	findings 	to which no 	exceptions
have been 	filed, 	I believe 	the Board should exercise a 	great
deal 	of restraint 	in making determinations 	on 	such matters
unless 	such 	findings 	clearly 	contravene 	the EERA. 	See Monterey
Peninsula 	Community College 	District 	(10/16/78) 	PERB 	Decision
No. 	76, 	dissenting opinion. 	The majority in this 	case 	treads
on 	dangerous 	ground by 	going behind 	findings 	that 	are not
excepted to by 	the parties. 	This 	same majority has 	shown a
penchant 	for 	going behind 	stipulations 	that 	are not 	contrary 	to
the EERA. 	My 	colleagues 	contradict 	their role 	as 	arbiters 	of
employee-employer relations 	disputes 	by 	in effect 	creating
disputed 	issues where 	there 	are none.
Secondly, 	the majority places 	summer 	school 	instructors 	in
the 	unit based on 	almost no 	information with respect 	to
community of 	interest 	factors. 	The 	record contains 	no 	facts 	on
summer school instructors' 	method of compensation, 	wages, 	hours,
employment benefits, 	supervision, 	qualifications and skills, 	and
contact with other 	employees. 	The record does 	indicate 	that both
summer 	school 	and 	full-time 	instructors 	teach 	courses 	for 	credit
and 	that 	some 	of 	these 	courses 	are 	identical. 	The majority
apparently believes 	that 	this 	similarity 	of job 	function, 	by
itself, 	is 	sufficient 	to overrule 	the hearing officer and find
a 	community of 	interest between 	summer 	school 	and other 	certifi-
cated employees. 	I 	disagree, 	and in the absence of any relevant
evidence, 	would 	sustain 	the hearing officer's 	uncontested
decision.
20

I 	concur 	in the majority's 	decision that the 	substitution
of hearing officers was not improper in this case.
Raymond' J. Gonzales, Member
21

STATE OF CALIFORNIA
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
In the Matter of:
RIO HONDO COMMUNITY COLLEGE DISTRICT,
Employer,
- and -
RIO HONDO FACULTY ASSOCIATION, CTA,
Employee Organization.
)
)
)
)
)
)
) 	Case No. 	LA-R-111
PROPOSED DECISION
November 2, 	1977
)
)
)
)
)
Appearances; 	John J. Wagner, Attorney (Wagner and Wagner), for the Rio Hondo
College Community College District; Robert M. Dohrmann, Attorney for the Rio
Hondo College Faculty Association, CTA.
Decided by: 	Carol Ann Webster, Hearing Officer.
PROCEDURAL HISTORY
On April 1, 1976, the Rio Hondo College Faculty Association,
California Teachers Association (Association) requested recognition as
exclusive representative of a unit consisting of all certificated
employees in the Rio Hondo Community College District (District),
excluding supervisory, management and confidential employees.
On May 5, 1976, at a special meeting of the Rio Hondo Community
College District a resolution was adopted doubting the appropriateness of
the unit as requested and specifically requiring that the certificated
employees unit be limited to only full-time employees. 	The District also
expressed doubt that CTA had majority support and requested an election
in a response filed on May 6, 1976. 	The District advised CTA and the
Educational Employment Relations Board (EERB) accordingly.
N1

1
On Thursday, June 3, 1977, a hearing was conducted by EERB Ad Hoc Hearing
Officer Philip Tamoush at the Rio Hondo Community College District office. 	At
the hearing the parties entered into the following stipulations:
1. 	That the District is a public employer under Section 3540.1 of
the Educational Employment Relations Act (EERA).
2. 	That the Rio Hondo College Faculty Association is an employee
organization under Section 3540.1 of EERA.
ISSUES
1. 	Whether part-time1 certificated employees should be included in a unit of
regular or contract full-time and part-time certificated employees.
2. 	Whether summer school instructors are appropriate in the unit.
FINDINGS OF FACT
Part-Time 	Certificated Employees
There is no exclusive division of part-time instructors teaching only at
night and full-time instructors teaching only daytime classes. 	Over half of
the teaching staff in the District is made up of part-time instructors teaching
60 percent or less of a full load. 	Part-time instructors are paid 50 percent
of full-time faculty pay pro rata and do not receive fringe benefits or
participate in the State Teachers Retirement System as do their full-time
counterparts. 	In the past, job security for part-time teachers has been tied
to enrollment and they could be terminated whenever class size decreased
beyond a certain point. 	Evaluation procedures are somewhat different between
part-time and full-time instructors.
Previously established practices between the District and the part-time
instructors have differed from practices between the District and full-time
1 "Part-time" as used herein refers to non-contract or non-regular employees
teaching 60 percent or less of a full teaching load. 	(These employees are
also referred to as "temporary" in the record.)
N	2

teachers, but the evidence shows that some of these differences are beginning
to blur. 	An example of such established practices include the exclusion of
part-time instructors from the Faculty Senate. 	The full-time faculty has
recently voted to include part-timers in the Senate.
Both part-time and full-time instructors are charged with the
responsibility for educating the District's students. 	The students are
generally unaware of the status of the instructors and receive the same
value of instruction irrespective of the status of their instructor.
The evidence shows that in the past the District has 	selected
representatives of more than one employee organization in accordance with
provisions of the Winton Act. 	The evidence and arguments that
consolidation of the two teaching classifications will 	interfere with
efficiency of operation are unconvincing and address themselves to
activities of the California courts relating to tenure for part-time
instructors, an issue on which California Courts of Appeal are in
conflict.
Summer School Teachers
Summer school teachers are either hired from the outside solely for
the summer with no guarantee of future employment with the District, 	or
they are regular instructors seeking to supplement their income. 	In
either case, there is no promise on the part of the District that the
teacher will be given special consideration for further assignments
either in the regular school year or subsequent summer school sessions.
The evidence on this category of certificated employees is sparse as
concerns pay scales and supervision. 	Regarding tenure, Education Code
Section 87474 provides that summer school employment does not count
toward eligibility for permanent status with the District.
33

DISCUSSION AND CONCLUSIONS
The question of whether or not part-time evening instructors should
belong to the same unit as full-time day instructors, 	full-time evening
instructors, 	and part-time day instructors was answered affirmatively in
the Board Decision Los Rios Community College 	District.2 	The one
limitation on inclusion in the unit was 	that part-time instructors must
have "taught at least the equivalent of three semesters of the last six
semesters inclusive"33 in order to be included in the unit with
full-time instructors. 	Because the Board has established the precedent
to include part-time instructors in the unit, 	so long as they meet the
additional requirement, 	the burden is on the District to show that the
facts in Rio Hondo justify a departure from the general rule. 	The
District has not met this burden.
In Los Rios, 	the Board analyzed the legislative mandate put forth in
Government Code Section 3545(a)4
,. in conjunction with NLRB
2 EERB Decision No. 18, June 9, 1977.
3In 	the Los Rios decision considerable attention was given to the
question of whether or not part-time instructors would have the necessary
continuity of employment to warrant inclusion in the unit. 	The Board held
that "we think that persons who continually, 	semester after semester, teach
in the community college have demonstrated their commitment to and interest
in its objectives. 	It seems unlikely that persons who have only a minimal
interest in the community college will continually seek or obtain employment
there." 	In the absence of testimony or argument offering a different measure
of continuity we adopt the measure established in Los Rios. 	See Decision
No. 18, at page 12.
4 The Government Code Section 3545(a) reads as follows: 	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.
44

precedent.5 	The Board found that, 	in general, NLRB analysis on the
subject of unit placement is not applicable to the California community
colleges whose emphasis is on teaching rather than research and
publication.
Furthermore, the NLRB gave great weight to tenure as an indication of
community of 	interest.6 	Conversely, the EERB in Los Rios elected to
give little weight to tenure because in California the court has yet to
decide the relationship between the right to tenure and employment status
as part-time. 77	7
Another factual distinction between New York University and Los Rios
was that the faculty participation in the operation of the college was
much greater at New York University due to the practice of shared
governance. 	Shared governance is limited by law in California as
concerns admissions8 and academic standards for probation, dismissal,
5The leading NLRB case dealing with unit placement is New York
University, (1973), 205 NLRB 4, 83 LRRM 1549, which did not include
part-time instructors in the unit unless they were in "tenure track"
positions.
6 New York University, at 1552.
7 In fact, part-time community college instructors have been found
to be eligible for tenure in many districts. 	See Fervner vs. Harris
(1975) 45 CA 3d, 363, at 368, Vittal vs. Long Beach Unified School
District (1970) 8 CA 3d. 	There has also been conflicting authority in
California on temporary instructor's ability to achieve tenure. 	See
Balen vs. Peralta Junior College District (1974) 11 CA 3d 821; Coffey vs.
Governing Board of San Francisco Community College District (1977) 66 CA
3d 279; Peralta Federation of Teachers vs. Peralta Community College
District, (1977) 69 CA 3d 281.
8 Education Code Section 76000 (25503) provides that any person
possessing a high school diploma or the equivalent may attend the
community college.
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readmission and graduation.8 u
It can, therefore, be said that the EERB has considered NLRB
precedent and rejected it as inapplicable to California Community College
Districts.
In Los Rios the Board established criteria by which we can determine
whether or not a community of interest exists between part-time evening
and other certificated personnel. 	These criteria include whether or not
there is a relationship between the pay scales of the two classifications
of teachers. 	In Rio Hondo, part-time teachers are paid 50 	percent of full-
pay pro rata. 	This is undeniably a relationship and we find that this
requirement has been met.
Another criterion in Los Rios was supervision. 	While it appears that
the supervision of part-time teachers is different from that of regular
teachers there is so little evidence on the matter that it is impossible
to determine whether or not this difference is sufficiently great to
defeat the community of interest presumed in light of the Los Rios
decision.
Finally there was the criterion of job function.9 There is no
doubt that the purpose served by part-time faculty is equally important
to District students as that purpose served by the daytime instructors.
Instructing students is, in fact, the primary reason for the existence of
the District.
8Education Code Section 72285 (1010.6)1.
9In Sacramento City Unified School District, EERB Decision No. 30,
September 20, 1977, at page 9, the Board held: "A separate unit is not
warranted merely because a group of employees share a community of
interest among themselves, when that homogeneous group forms only a part of a
larger essentially homogeneous group sharing similar conditions of employment
and job functions."
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SUMMER SCHOOL INSTRUCTORS
In Los Rios the Board considered the question of whether or not
summer school instructors should be included in the unit of regular
instructors. 	There, 	the facts indicate that the hiring procedures were
similar to those in Rio Hondo. 	Instructors included both regular year
instructors and teachers from the outside. 	The Board found that there
was not a sufficient community of interest between the summer session and
regular year teachers due to separate pay scales, 	lack of assurance of
continued employment and legal prohibitions 	on accumulation of tenure,
and excluded them from the unit. 	This then sets up a presumption that
summer school teachers are inappropriate in the unit and the burden of
proof is on the party seeking to include them in a unit of regular
teachers. 	This burden was not met.
The only argument put forth regarding appropriateness of summer
school teachers in the unit was that since summer school teachers include
regular year teachers, they should be included. 	The fact that some of the
summer school teachers are also regular year faculty does not support a
finding of a common community of interest per se. 	No additional facts have
been presented to demonstrate a relationship between salary, benefits, super-
vision or evaluation procedures, which could establish a common community of
interest between the two groups. 	Since no evidence was offered as to why
these teachers share a community of interest with regular teachers, the
presumption remains and summer school teachers shall be excluded..
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PROPOSED ORDER
It is proposed that the following unit is appropriate for the purpose
of meeting and negotiating provided that an employee organization becomes
the exclusive representative of the unit;
A unit consisting of all certificated employees
including all full-time and part-time regular or
contract certificated plus part-time certificated
employees who have taught at least the equivalent
of three semesters of the last six semesters
inclusive and excluding all management, 	supervisory
and confidential employees, 	substitutes and summer
school instructors.
The parties have seven 	(7) 	calendar days from the receipt of this
Proposed Decision in which to file exceptions in accordance with
Section 33380 of the Board's Rules and Regulations. 	If no party files
timely exceptions, this Proposed Decision will become final on November 14,
1977, and a Notice of Decision will issue from the Board.
Within ten (10) workdays after the employer posts the Notice of
Decision, 	the employee organizations may demonstrate to the Regional Director
at least 30 percent support in the above units. 	The Regional Director shall
conduct an election in each unit at the end of the posting period if
(1) more than one employee organization qualifies for the ballot, or
(2) 	only one employee organization qualifies for the ballot and the employer
does not grant voluntary recognition.
The date used to establish the number of employees in the above units
shall be the date of this decision unless another date is deemed appropriate
by the Regional Director and noticed to the parties. 	In the event another
date is selected, 	the Regional Director may extend the time for employee
organizations to demonstrate at least 30 percent support in the units.
Dated: 	November 2, 1977.
Carol Ann Webster, Hearing Officer
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