Redwood City Elementary School District (PERB 0107E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
REDWOOD 	CITY 	ELEMENTARY 	SCHOOL 	DISTRICT,
Employer,
and
REDWOOD CITY 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Employee 	Organization
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Case 	No. 	SF-R-122(579)
PERB 	Decision 	No. 	107
October 	23, 	1979
Appearances: 	Daniel 	c. 	Cassidy, 	Attorney 	(Paterson 	& Taggart)
for 	Redwood 	City 	Elementary 	School 	District; 	Rubin 	Tepper,
Attorney 	for 	Redwood 	City Teachers 	Association, 	CTA/NEA.
Before 	Gluck, 	Chairperson; 	Moore 	and 	Gonzales, 	Members.
DECISION
The 	Redwood 	City 	Elementary 	School 	District 	(hereafter
District) 	has 	excepted 	from 	a 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	hearing 	officer's 	proposed 	decision
holding 	that 	summer 	school 	teachers 	are 	employees 	for 	the
purposes 	of 	the 	Educational 	Employment 	Relations 	Act 	(hereafter
EERA or 	Act) ,1 	and 	that 	they 	constitute 	an 	appropriate
negotiating 	unit. 	The 	Board 	affirms 	the 	hearing 	officer's
lThe 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
Government 	Code 	section 	3540 	et 	seq. 	All 	section 	references
herein 	are 	to 	the 	Government 	Code 	unless 	otherwise 	noted.

determination
	that
	summer
	school
	teachers 	are
	"employees"
	for
the
	purposes 	of 	the 	Act.2	
On
	the
	unique
	facts
	of
	this
	case,
however,
	we
	construe 	the
	Redwood
	City
	Teachers
	Association's
{hereafter
	Association)
	petition
	for 	recognition3 	as
	a
petition
	for
	unit
	modification4	
to
	add
	the 	described
	summer
school
	positions
	to
	the
	Association's 	existing
	certificated
unit.
	This
	petition
	we
	grant.
PROCEDURAL
	HISTORY
	AND
	FACTS
On 	May
	26, 	1976,
	the
	District
	recognized 	the
	Association
	as
the 	exclusive 	representative
	of 	"regular 	full-time
	certificated
and
	regular 	part-time
	certificated
	teachers.
11
5	
During
2section 	3540.l(j) 	defines
	"employee"
	as
	"any
	person
employed	
by	
any
	public
	school
	employer
	except 	persons
	elected
by
	popular 	vote, 	persons 	appointed 	by 	the
	Governor
	of
	this
state,
	management
	employees,
	and
	confidential
	employees."
3pursuant
	to 	section
	3544,
	the 	Association 	requested
recognition 	as 	the 	exclusive 	representative 	of
	a
	unit
	of
11
/r/egular 	full-time
	certificated
	and
	regular 	part-time
certificated
	summer
	school
	teachers."
48
	Cal.
	Admin. 	Code
	sec.
	33260.
5An
	administrative	
body 	may
	take
	official
	notice	
of	
its
records. 	California 	Administrative
	Code,
	title
	8,
section
	33190(a)
	provides
	that
	the 	employer
	shall 	file
	with 	the
Board 	a
	description 	of 	the
	unit
	it
	has
	voluntarily 	recognized.
The
	unit 	of
	academic 	year
	certificated
	personnel 	includes
"regular 	full-time 	certificated
	and
	regular 	part-time
certificated
	teachers" 	including 	the 	audiometrist, 	visually
handicapped 	teachers,
	home	
teachers, 	speech
	therapists, 	nurses,
children's 	center 	teachers, 	resource 	teachers, 	rapid 	learning
center 	teachers, 	preschool 	teachers, 	counselors, 	librarians,E.S.L. 	teachers, 	instrumental 	music
	teachers, 	hard 	of 	hearing
2

initial
	contract 	negotiations
	the
	parties
	discussed
	summer
school
	salaries.
	But
	after
	Belmont
	Elementary 	School
District6	
issued,
	holding
	that
	summer
	school
	teachers
	lacked
a
	community
	of
	interest
	with
	regular
	academic
	year
	teachers,
the
	District
	took
	the
	position 	that
	the
	Association 	did 	not
represent
	summer
	school
	teachers.
teachers, 	special
	education 	teachers,
	E.M.R.
	teachers,
	learni
disability
	teachers,
	and 	E.H.
	teachers,
	and
	excludes
management,
	supervisory,
	and
	confidential
	employees.
Specifically
	excluded
	from
	the
	unit 	are:
	the
	superintendent,
assistant
	superintendent 	for 	personnel,
	assistant
superintendent 	for
	instruction, 	director 	of 	pupil 	personnel
services,
	all
	full-time 	Distr
	t
	level 	positions
	having
ti
	of 	coordinator, 	director
	or 	area 	administrator,
	all
principa
	,
	all
	11-time 	vice 	princ
	ls,
	administrative
assistants, 	assistant
	superintendent 	for 	business, 	director	
of
building,
	grounds
	and
	transportation, 	supervisor 	of 	custodians,guidance
	consultant, 	welfare
	and
	attendance
	officer,
	and
psychologists.
On
	June
	28, 	1977,
	the 	Association
	filed
	the
	instant
petition
	requesting
	District
	recognition 	of
	a
	unit
	of
certificated
	summer
	school
	employees.
	The
	petition
	was
accompanied	
by proof 	of
	majority 	support. 	After
	a
	hearing
	on
October
	12,
	1977,
	the
	attached
	hearing
	officer's
	proposed
decision 	issued
	on
	January 	24,
	1978, 	awarding
	the 	Association
the
	unit
	it
	requested.
	In
	addition 	to
	the
	facts
	recounted
here, 	the
	Board
	adopts 	the 	hearing
	officer's
	findings 	of
	fact.
(FN.
	5	
can't.)
,.
0
(12/30/76)
	EERB
	Decision
	No.
	7.
3

The
	District
	filed
	timely 	exceptions 	to 	the
	hearing
	officer's
decision
	on
	February
	2, 	1978.
While
	this
	case
	was
	pending, 	the
	Board
	decided
	Peralta
Community
	College
	District
	(11/17/78)
	PERB
	Decision
	No.
	77,
holding
	that
	section
	3545(b) (1)7	
requires
	PERB
	to
	place
	all
instructional
	personnel 	in 	the
	same
	negotiating
	unit
	absent
	a
finding
	that
	they
	lack
	a
	community
	of
	interest.
DISCUSSION
From
	the 	record
	in
	this
	case,
	it
	appears
	that
	the
Association 	intended
	its
	original
	request 	for
	recognition
	to
cover
	summer
	school
	teachers
	as 	well 	as
	academic
	year
teachers.
	This
	is
	evident
	from
	the
	fact 	that
	the
	Association
and
	District's
	early 	negotiations
	included
	summer
	school
salaries.
	After 	the
	Belmont
	decision 	issued,
	however,
	the
District
	declined
	further 	negotiations
	on 	summer
	school
	issues.
The
	Association's 	options
	at 	that
	time
	were
	limited.
Challenging 	the
	District's
	refusal 	to 	negotiate
	summer
	school
salaries
	might
	have
	clarified
	the 	scope
	of 	the
	Association's
representation
	of
	academic
	year
	teachers, 	including 	those
?section
	3545
(b}
(1)
	provi 	s:
A
negotiating 	unit 	that 	includes 	classroom
teachers 	shall
	not
	be
	appropriate 	unless
	it
at 	least
	includes
	all
	of 	the 	classroom
te 	rs
	employed 	by 	the 	public 	school
employer, 	except
	management
	s,supervisory 	employees, 	and	
confidentialemployees.
4

teachers
	who
	also
	teach
	summer
	school,
	but
	would
	not
	have
resolved 	questions
	concerning 	the
	status
	and
	correct 	unit
placement
	of
	summer
	school
	teachers,
	including 	those
	teachers
who
	only 	teach
	summer
	school.
	In
	view
	of
	Belmont,
	a
	petition
for
	a
	change
	in
	unit
	determination
	(former
	Board
	rule
	33260)
probably
	would
	have 	been
	futile.
	Petitioning
	for
	a
	separate
unit
	undoubtedly
	seemed
	the
	surest
	way
	to
	gain
	representation
for
	certificated
	summer
	school
	personnel.
Were
	the
	Board
	to
	apply 	the
	policy 	established 	in
	Peralta
Community
	College
	School
	District
	(11/17/78)
	PERB
	Decision
No.
	77,
	there
	would 	be 	a
	rebuttable
	presumption
	that
	summer
school
	teachers
	would
	not
	belong
	in
	a
	unit
	separate
	from
	other
District 	instructional
	personnel.
	The
	Board
	has
	held,
	however,
that
	the
	Peralta
	presumption 	"should 	only
	have
	a
	prospective
effect
	in
	situations
	where 	a
	retrospective 	application
	would
cause
	disruption
	and
	instability."
	(Palo 	Alto 	Unified 	School
District
	(1/9/79)
	PERB
	Decision
	No. 	84
	at
	p. 	8.)
	For
	example,
in 	the 	consolidated 	cases 	of 	Palo Alto 	Unified
	School
	District
and
	Jefferson
	Union 	High
	School,
	supra, 	the
	Board
	declined 	to
apply 	the
	Peralta
	presumption
	when
	units 	already 	in 	place
	were
covered 	by 	negotiated
	agreements
	that 	specifically
	excluded 	the
employees 	sought 	for 	representation 	in
	a
	separate 	unit.
Instead, 	separate 	teacher 	units
	were 	awarded
	to
	employees 	who
were
	not 	previously 	represented.
	(But 	see 	Oakland
	Unified
School
	District
	(9
	/20/79)
	PERB
	Decision
	No. 	102 	,
	in 	which
the 	Board 	did 	not 	establish 	separate 	units.)
5

Palo
	Alto/Jefferson
	did 	not
	establish
	the
	sole
	factual
situation
	in
	which
	the
	Board
	will
	decline 	to
	apply 	the
	Peralta
presumption.
	The
	instant
	case
	also 	presents
	facts
	on
	which
	it
would 	be
	inequitable 	to
	apply
	the
	Peralta
	presumption
	and
dismiss 	the
	Association's
	petition.
	It
	is
	clear 	that
	what
	the
Association
	has
	really
	wanted
	from
	the 	beginning
	is
	a
comprehensive
	unit
	of
	both
	summer
	school
	and
	academic
	year
teachers.
	It
	is
	further
	apparent
	that
	it
	is
	PERB's
	varied
policies--and
	not
	the
	Association's
	error--that
	has
	obstructed
it
	from
	reaching
	that
	goal.
Unit
	modification
	is
	the 	only
	means 	by
	which
	the
Association
	can
	now
	add 	summer
	school
	teachers 	to
	its
established 	unit
	of
	academic
	year
	teachers.
	But
	since 	the
Board's
	unit 	modification 	rules 	require
	a 	showing
	of
	majority
support 	to
	add 	new
	classifications
	to
	an
	existing 	unit,8	
and
since 	the
	signatures 	gathered 	in 	support 	of 	the 	Associaion'
s
8
eoard
	rule 	33030(c)
	(8
	Cal.
	Admin. 	Code
	sec. 	33030(c))provides:
(c) 	Each 	form
	of 	proof,
	excluding
	a
notarized
	membership
	list,
	shall 	indicatethe 	date
	on 	which 	each
	signature
	was
obtained.	
A	
signature	
which	
is
	undated
	or
which
	indicates 	that
	it
	was
	obtained
	earlier
than
	one
	calendar 	year
	prior 	to 	the
	filingof 	the 	request 	or 	intervention
	with 	theemployer	
shall
	be
	invalid 	for 	the 	purpose
	ofcalculating 	proof 	of 	support. 	In 	the 	case
of	
a
	notarized	
membership	
list,	
the	
list
shall
	be 	dated 	not
	earlier
	than
	one	
calendar
year 	prior 	to 	the 	date
	of 	filing
	and
	shall
be
	certificated
	as 	accurate.
6

petition
	herein 	are
	now
	stale,9	
if
	the
	Board
	were
	to 	dismiss
this
	case 	with 	leave
	to
	the 	Association
	to
	bring
	a
	unit
modification
	petition,
	the 	Association
	would
	have
	to 	gather
signatures
	a
	third
	time
	in
	order
	to
	become
	the
	representative
of
	the
	summer
	school
	teachers
	it
	thought
	were
	included 	in
	its
original
	request 	for
	recognition.
	This
	would 	be
	inequitable 	to
both 	the
	organization
	and
	to
	summer
	school
	certificated
personnel.
Just
	as 	the
	equities
	in
	the 	case 	before
	us
	preclude
dismissal,
	they
	demand
	that
	the
	Board
	resolve 	the
	questions
presented	
by 	the
	Distict's
	exceptions 	in
	a 	manner
	that
	gives
weight
	to 	the
	summer
	school
	teachers'
	interest
	in 	obtaining
representation 	rights
	and
	to
	the
	Association's
	interest
	in
avoiding
	further
	organizing
	hurdles.
	The
	Board
	therefore
construes
	the
	instant 	petition
	as
	a
	unit
	modification
	petition
to
	add 	summer
	school
	certificated
	personnel 	to 	the
	established
academic 	year
	unit.
	(See
	sections
	3541.3(a)and
	(n)
.)10
9section
	3545 (b) ( 1)
	is
	quoted 	supra
	at
	note 	5.
lOsection
	3541.3
	empowers	
the 	Board:
(a) 	To
	determine 	in 	disputed 	cases, 	or
otherwise 	approve, 	appropriate 	units.
(n) 	To
	take
	such
	other 	action 	as 	the 	boarddeems	
necessary 	to 	discharge
	its
	powers 	and
duties
	and
	otherwise 	to 	effectuate 	the
purposes	
of 	this 	chapter.
7

The
	parties
	did
	not
	specifically
	litigate
	the
appropriateness 	of
	a
	unit
	comprised
	of
	both
	summer
	school
	and
academic
	year
	certificated
	employees.
	Nevertheless, 	there
	is
ample
	evidence
	in
	the 	record
	to
	sustain
	our
	finding
	that
	these
employees
	appropriately
	belong
	in 	the
	same
	negotiating
	unit.
Both
	summer
	school
	and
	academic
	year
	teachers 	are
	credentialed
personnel
	who
	deal
	directly
	with
	and
	educate
	children.
	In
	the
summer
	session,
	as 	well 	as 	during 	the
	academic
	year,
	the
	class
schedule 	includes
	traditional
	academic
	subjects
	such
	as
reading,
	writing,
	and
	arithmetic.
	Summer
	school
	teachers
prepare 	lesson
	plans,
	instruct,
	and
	participate
	in
	extra
curricular
	activities
	such
	as
	back-to-school 	night.
	The
qualifications
	required 	of
	summer
	school
	teachers 	are 	the
	same
as 	those
	required 	of
	academic
	year
	teachers
	and,
	in
	fact,
	the
District
	hires
	the 	majority
	of
	its
	summer
	school
	teachers
	from
its
	academic
	year
	certificated 	staff.
	Disparities
	between
	the
wage
	rates
	and
	fringe 	benefits 	of	
summer
	school
	and
	academic
year 	teachers
	do
	not 	persuade
	us
	that
	they
	lack
	a 	community
	of
interest,
	since 	for
	all
	practical
	purposes 	the 	hours,
	wages,
and	
other 	terms
	and
	conditions 	of
	summer
	school
	employment
	are
wholly 	within 	the	
District's 	contro1.ll
11we	
note 	that 	the	
District	
has 	adopted 	the	
Association'ssuggestions
	on
	sick 	leave
	and 	wage
	increases 	for	
summer
	school
teachers.
8

The
	District
	argues
	that 	establishing
	a
	fourth 	negotiating
unit
	would
	impair 	the
	efficiency
	of
	its
	operations.
	While
	this
Board
	will
	not 	avoid
	establishing 	additional
	negotiating
	units
if
	that 	is
	necessary 	to
	extend
	representation
	to
	employees
	who
are 	properly
	excluded
	from
	existing
	units,
	in
	this
	case
	summer
school
	and
	academic
	year
	teachers
	belong
	in
	the
	same
	unit
	and
can
	be 	merged
	without
	upsetting
	an
	existing
	negotiating
relationship.
Because
	only
	one 	employee
	organization
	is
	involved,
	because
it
	has
	consistently
	pursued
	its
	quest 	to 	represent
	both
	summer
school
	and
	academic
	year
	teachers,
	and
	because
	it
	is
	PERB's
decision-making
	processes
	and
	not 	the
	Association's 	error
	that
caused
	it
	to
	petition
	for
	a
	separate 	unit
	of
	summer
	school
teachers,
	on
	the
	unique
	facts
	of
	this
	case
	we
	construe 	the
Association's
	petition
	as
	one
	to
	modify
	its
	existing 	unit 	to
add
	summer
	school
	teachers.
	(Board
	rule
	33260
	et
	seq.)	
2	1	
we
note
	that
	the
	Association's
	petition 	is
	in
	substantial
compliance 	with 	the 	Board's
	unit
	modification 	rules:
	it
	is
timely
	filed
	(Board
	rule
	33261
(a)
(1)) ,13	
and 	accompanied
	by
12
cal.
	Admin. 	Code	
sec.
	33260
	et
	seq.
13
cal.
	Admin. 	Code
	sec.
	33261 (a)
(1).
	Board
	rule
33261 (a) (1)
	provides:
(a)	
A	
recognized 	or
	certified	
employee
organization	
may	
file	
with 	the 	Regional
Office
	a
	petition	
for	
a 	change 	in 	unit
9

the
	requisite
	showing
	of 	majority
	support
	among
	the
classifications
	to
	be
	added
	to
	the
	established
	unit.
	(Board
rule
	3326l(f) .)14	
No
	election 	is
	necessary
	in
	this
	case.
(Board
	rule
	33265(c)
.)15	
Therefore,
	Board
	certification
	of
(FN. 	13
	con't)
determinations 	pursuant 	to 	section
	3541.3(e)
of 	the
	Act.
(1)
	To
	add
	to
	the
	unit
	classifications
which
	existed 	prior
	to 	the
	recognitionor
	certification
	of
	the
	currentexclusive 	representative
	of 	the
	unit,
provided
	such
	petition 	is 	filed 	at 	least
12
	months
	after
	the 	date
	of 	saidrecognition
	or
	certification[.]
14
cal.
	Admin. 	Code
	sec. 	3326l(f).
	Board
	rule
	3326l(f)
provides: 
(f)
	If
	the
	petition
	requests
	the
	addition
of
	classification(s)
	or
	position(s)
	to
	an
established 	unit
	pursuant
	to 	section
	(a) (1)
above,
	it
	must 	be 	accompanied	
by proof 	of
majority 	support 	of 	persons
	employed
	in 	the
classification(s)
	or
	position(s) 	to
	be
added.
	Such
	support
	shall
	indicate 	desire
(1)
	to
	be
	included 	in 	the
	established 	unit
and 	(2)
	to
	be
	represented
	by
	the
	currentexclusive 	representative
	of 	the
	established
unit.
	[Emphasis
	in 	the
	original.]
15cal.
	Admin. 	Code
	sec. 	33265(c).
	Board
	r
	33
	5
(c)provi 	s:
(c) 	The
	Regional 	Director
	may
	request 	additional
	showing
support 	or 	order
	an
	election
	among
	unrepresented 	employees
to
	be 	added
	to
	a
	unit,
	if
	classifications 	found~ropriate
	to
be 	added
	to 	the 	unit
	do
	not 	include
	all
	classif1cat10ns
.2_Qginally
	petitioned 	for.
	[Emphasis 	added.]
10

the
	Association's
	modified
	unit
	shall
	issue
	forthwith.
	(Board
rule
	33265(d).)16
ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that:
(1) 	The
	hearing
	officer's
	determination
	that
	summer
	school
teachers 	are
	"employees"
	within 	the
	meaning
	of 	the 	Educational
Employment
	Relations
	Act
	is
	AFFIRMED;
(2) 	The
	petition
	of 	the
	Redwood
	City
	Teachers
	Association,
CTA/NEA,
	for 	recognition
	as 	the
	exclusive
	representative 	of
	a
unit
	of
	summer
	school
	certificated
	personnel,
	which
	we
	construe
as
	a
	petition
	to
	modify
	the
	existing
	certificated
	unit 	to
include
	summer
	school
	teachers,
	is
	granted:
(3)	
The
	Association
	shall
	be
	certified
	as 	the
	exclusive
representative
	of
	a
	unit
	including
	all
	regular
	full-time
certificated
	and
	regular 	part-time
	certificated
	teachers,
including
	summer
	school
	teachers,
	including
	visually
16
cal.
	Admin. 	Code
	sec.
	33265(d).
	Board
	rule
	33265(d)
provides:
(d)
	Board
	Certification
	of
	a
	Unit
Modification.
(1) 	The 	Board 	sha
	issue
	a	
certi-fication 	of 	unit 	modification
	whenever
the
	disposition 	of
	a
	petition 	filed
under
	this 	Article 	results
	in 	the
modification
	a
	unit.
(2)
	certification
	sha 	not
considered 	to
	a 	new
	certification
	for
the 	purpose 	of 	computing 	time
	limitspursuant 	to 	regulation 	33250(b).
11

12
handicapped
	teachers,
	home
	teachers,
	speech
	therapists,
	nurses,
children's
	center 	teachers,
	resource
	teachers,
	rapid
	learning
center 	teachers,
	preschool
	teachers, 	counselors,
	librarians,
E.S.L.
	teachers,
	instrumental
	music
	teachers,
	hard
	of 	hearing
teachers, 	special
	education
	teachers,
	E.M.R.
	teachers, 	learning
disability
	teachers,
	E.H.
	teachers,
	and
	excluding: 	only
	those
school
	District
	employees,
	considered
	management,
	supervisory
and
	confidential
	as
	excluded
	by
	the
	Act
	as
	outlined
	by 	PERB.
Certificated
	management
	positions
	are
	superintendent,
	assistant
superintendent
	for
	personnel,
	assistant
	superintendent 	for
instruction, 	director
	of
	pupil
	personnel
	services,
	all
full-time
	district
	level 	positions
	having
	the
	title
	of
coordinator,
	director,
	or 	area
	administrator,
	all
	principals,
all
	full-time
	vice
	principals,
	administrative
	assistants,
assistant
	superintendent 	for 	business,
	director
	of 	building,
grounds,
	and
	transportation,
	supervisor 	of
	custodians,
	and
further
	excluding:
	guidance
	consultant,
	welfare
	and
	attendance
officer,
	and
	psychologists.
By :
Barbara D. Moore, Member natty GIGEk, Chalyperson
Raymond
	J.
	Gonzales,
	Member,
	dissenting:
I
	dissent
	from 	the 	majority's 	decision 	to 	place
	summer
school 	certificated
	employees 	in 	the 	already 	established 	unit
12

of
	regular
	certificated
	employees.
	I
	continue
	to
	adhere
	to
	my
position,
	set
	forth
	in
	Belmont
	Elementary 	School
	District
(12/16/76)
	EERB
	Decision
	No.
	7,
	Petaluma
	City
	Elementary
	and
High
	School
	Districts
	(2/22/77)
	EERB
	Decision
	No.
	9,
	and
	New
Haven
	Unified
	School
	District
	(3/22/77)
	EERB
	Decision
	No.
	14,
that
	summer
	school
	teachers
	do
	not
	share
	a 	community
	of
interest
	with
	regular 	school-year
	teachers.
The 	summer
	school
	program
	is
	separate
	and
	distinct
	from
	the
regular
	program,
	and 	summer
	school
	teachers
	have
	different
terms
	of
	employment
	than
	regular 	teachers.
	Summer
	school
teachers
	have
	different 	salaries
	and
	fringe
	benefits, 	shorter
hours,
	and 	no
	formal
	evaluation procedures.
	They
	are 	not
entitled
	to
	a
	formal
	hearing
	if
	they 	are
	removed. 	Employment
as
	a 	summer
	school 	teacher
	is
	short-term
	and
	tenuous--teachers
have 	no
	guarantee 	of 	being
	rehired 	in
	subsequent
	summers.
Summer
	school
	teachers 	receive
	no
	credit
	towards
	retirement 	in
the
	State
	Teachers 	Retirement
	System
	and
	time
	spent 	teaching
summer
	school
	does
	not 	count 	towards
	achieving 	permanent
status.
1
lAs
	will	
be	
developed
	further
	below, 	the
	parties
	did 	not
litigate
	the 	issue 	of 	whether
	summer
	school 	teachers 	should 	be
included 	in 	the	
same
	unit
	with 	regular-year 	teachers.
Therefore, 	there 	are 	probably 	other 	significant 	differences
between 	the
	two
	groups 	which	
are 	not
	part
	of 	the 	record 	in
	thiscase.
13

The
	majority 	discounts 	these
	differences
	in
	terms
	and
conditions
	of
	employment
	by
	noting
	that
	they
	are 	within 	the
District's
	control.
	I
	fail
	to
	see
	the 	relevance 	of
	this.
	PERB
has
	consistently
	considered
	terms
	and
	conditions
	of
	employment
to
	be
	among
	the
	criteria
	used
	in
	determining
	community
	of
interest
	and 	making
	unit 	decisions.2	
The
	fact 	that
	before
units
	are 	in 	place
	and
	exclusive
	representatives 	selected,
terms
	and
	conditions
	of
	employment
	are
	generally 	within 	the
control
	of 	the
	employer, 	has
	not 	prevented
	us
	from
	according
significance
	to 	these
	criteria
	in 	other 	cases;
	it
	should 	not 	in
this
	case.
Thus,
	I
	continue 	to 	believe
	that
	summer
	school
	teachers
	do
not 	share
	a
	sufficient
	community	
of	
interest
	with
	regular-year
teachers
	and
	should 	not
	be
	included 	in 	the
	same
	unit.
Even
	if
	I
	agreed
	that
	summer
	school
	teachers
	should 	be
placed 	in 	the
	established 	unit
	of
	regular-year 	teachers,
	I
could 	not 	concur
	in
	this
	decision; 	the
	majority's 	action 	in
construing
	an 	unambiguous
	representation
	petition
	as
	a
	unit
modification
	petition 	stretches 	this
	Board's
	powers
	far
	beyond
what
	is
2PERB
	has
	consistently 	cited
	the
	community
	of
	interest
criteria
	used 	in
	Kalamazoo 	Paper
	Box
	Corp. 	(1962) 	136
	NLRB
	134
[49
	LRRM
	15]. 	See,
	e.g.,
	Antioch 	Unified
	strict
(11/7/77)
	EERB
	Decision
	No.
	37, 	Office 	of 	the 	Santa Clar.a
Countv 	Superintendent 	of 	Schools 	(7/19/78)
	PERB
	DecisionNo.
	59. 	se
	criteria 	includes
	terms 	employment
	asmethod 	of 	compensation, 	wages, 	hours,
	and 	employment
	benefits.
14

There
	is
	no
	basis
	for 	the
	majority's
	action
	in
	PERB
regulations
	or
	precedent;
	it
	seems
	to
	me
	to
	be
	a
	clear
	example
of
	result-oriented
	decisionmaking
	in
	which
	the
	end
	justifies
any
	necessary
	means.
	By
	switching 	procedures
	and
	thus
	changing
the
	entire
	focus
	of 	the
	case, 	the 	majority
	has
	demonstrated
that
	PERB
	procedures
	can
	be
	relied
	upon
	only 	so
	long
	as
	those
procedures 	enable
	a
	majority 	to
	reach 	the
	result
	it
	wants.
The
	majority
	justifies
	its
	unique
	interpretation
	of 	the
case 	before
	it
	by
	its
	claim
	to
	be
	helping 	the
	Association.
However,
	we
	do
	not
	know
	that
	the 	Association
	wishes
	to
represent
	summer
	school
	teachers 	in 	the
	same
	unit
	with
	regular
teachers;
	the 	majority
	has
	assumed
	this
	on
	the
	basis 	of 	events
from
	three 	years
	ago
	in 	order 	to
	justify
	its
	own
	wish
	to
combine
	the
	two
	groups.
	Even
	if
	the
	majority's
	decision
	does
aid 	the 	Assocation, 	the
	employee
	organization's
	interests
	are
not 	the 	only
	ones
	entitled
	to 	consideration 	in
	unit
	proceedings.
For 	example,
	the 	majority 	decision 	gives
	summer
	school
teachers
	no
	opportunity 	to
	state
	whether
	or 	not 	they
	wish
	to
	be
included 	in 	the
	overall 	unit.
	If 	this
	were 	a
	true 	unit
modification
	petition,
	the 	Association	
would 	have 	had
	to
	file
	a
showing
	of 	support 	indicating 	that	
the	
summer
	school 	teachers
not 	only
	wanted
	to
	be
	represented
	by
	the 	Association, 	but 	also
15

that 	they 	wanted 	to 	be 	included 	in 	the 	established 	unit.3
The 	majority, 	by 	construing 	a 	representation 	petition 	as 	a 	unit
modification 	petition, 	has 	avoided 	this 	requirement; 	summer
school 	teachers 	are 	to 	be 	placed 	in 	the 	established 	unit 	on 	the
basis 	of 	two 	to 	three-year-old 	signatures 	collected 	when 	there
was 	no 	indication 	that 	summer 	school 	teachers 	might 	be 	included
in 	a 	unit 	with 	regular-year 	teachers.
The 	majority's 	action 	also 	fails 	to 	take 	into 	account 	the
District's 	interests. 	If 	this 	were 	a 	true 	unit 	modification
proceeding, 	the 	District 	would 	have 	had 	an 	opportunity 	to
present 	evidence 	and 	argue 	against 	the 	proposed 	combined 	unit.
But 	at 	the 	time 	of 	the 	hearing 	two 	years 	ago, 	the 	District
could 	not 	have 	known 	that 	the 	Board's 	heretofore 	consistent
precedent 	excluding 	summer 	school 	teachers 	from 	regular-year
units 	would 	have 	changed 	by 	the 	time 	the 	Board 	made 	a 	decision
in 	this 	case. 	It 	therefore 	did 	not 	know 	that 	evidence
indicating 	that 	a 	combined 	unit 	of 	summer 	school 	and
3PERB 	rule 	3326l(f) 	provides:
If 	the 	petition 	requests 	the 	addition 	of
classification(s) 	or 	position(s) 	to 	an
established 	unit 	pursuant 	to 	section (a) (1)
above, 	it 	must 	be 	accompanied 	by proof 	of
majority 	support 	of 	persons 	employed 	in 	the
classification(s) 	or 	position(s) 	to 	be
added. 	Such 	support 	shall 	indicate 	desire
(1) 	to 	be 	included 	in 	the 	established 	unit
and 	(2) 	to 	be 	represented 	by 	the 	current
exclusive 	representative 	of 	the 	established
unit. 	[Emphasis 	added.]
16

regular-year 	teachers
	would 	be
	relevant
	and
	made
	no
	particular
effort
	to 	present
	such
	evidence.4	
By
	construing 	the
representation
	petition
	as
	a
	unit
	modification
	petition
	and
placing
	the
	summer
	school
	teachers
	in 	the
	regular
	certificated
unit
	without
	further
	proceedings, 	the
	majority
	has
	denied
	the
District
	any
	opportunity
	to
	rebut 	the
	Peralta 	"rebuttable
presumption"
	that
	all
	teachers
	should
	be
	in 	the
	same
	unit.
	It
appears
	that
	the
	District 	is
	being
	penalized
	and
	denied
	due
process
	merely 	because
	the
	majority
	in
	this
	case 	wishes
	to
change
	the 	precedent
	created
	by
	previous
	PERB
	members.5
I
	believe
	it
	is
	inappropriate 	for
	this
	Board
	to
	accord
	so
little
	weight
	to
	its
	rules
	and
	procedures.
	If
	changes
	in
precedent 	are 	necessary,
	it
	seems
	better
	to
	make
	them
	in
	cases
presenting
	a
	proper 	procedural 	posture 	rather
	than 	changing
	the
procedural 	posture 	of
	a
	case
	to
	fit
	the 	desired
	change
	in
precedent.
	Any
	possible
	inconvenience
	to
	the
	Association 	in
this
	case
	does
	not, 	in
	my
	view, 	outweigh
	the
	benefits 	to
	all
4The
	majority
	acknowledges
	that
	the
	parties
	did
	not
lit
	ate
	the 	appropriateness 	of
	a
	unit
	composed
	of
	both
	summer
school
	and
	regular-year 	teachers.
5rn
	Belmont, 	Petaluma,
	New
	Haven, 	Chai
	rson
Reginald 	Alleyne 	and
	I
	voted
	to 	exclude
	summer
	school 	teachers
from
	the 	regu
	-year 	unit,
	with
	Jerilou
	Cossack
	Twohey
dissenting.
	The
	composition
	t
	Board
	ed, 	leading
to
	sin
	nt.
17

parties
	of
	the
	Board's
	following
	standard 	procedures
	and
evaluating
	cases
	on
	the
	issues
	that
	the
	parties
	have
	addressed.
/Raym/"na
	J.
	Gon:f"ale~
	Member'
18

PUBLIC
	EMPLOYMENT
RELATIONS
BOARD
OF THE
	STATE
OF
CALIFORNIA
REDWOOD
CITY
	ELEMENTARY
SCHOOL
DISTRICT,
Employer,
and
REDWOOD
	CITY
TEACHERS
ASSOCIATION,
CTA/NEA,
Employee
Organization.
)
)
)	
Representation
Case
No.
	SF-R-579	)
)
)
)
)	
PROPOSED
DECISION
)
)	
(1/24/78)
)
Appearances:	
Daniel Cassidy, 	Attorney
	(Paterson
and
Taggart),
	for
Redwood
	City
Elementary School
District;
	Rubin Tepper,
	Attorney
	for
Redwood
	City
Teachers
	Association,
	CTA/NEA.
Before
	Ronald E. 	Blubaugh, 	Hearing
Officer.
PROCEDURAL
	HISTORY
This case
	presents the
	issue of
whether a
	separate
unit of
summer
school
	teachers
	is
	an
appropriate
unit.
On
June 28, 	1977,
	the
	Redwood
	City Teachers
Association,
	CTA/NEA,
1
filed
	a
	request
with
	the
	Redwood
	City
School
District
2
seeking
	recognition as 	the exclusive
1
Hereafter, 	the
Redwood 	Teachers Association,
	CTA/NEA,
will
be
	referred 	to as the "Association."
2
Hereafter, 	the Redwood City Elementary School
District willbe
	referred 	to as the 	"District.
11

2
representative of
a
unit of
summer
school
	teachers.
3 The
District
posted the
	appropriate 	notice
	on
July
6, 	1977 and on
August
	2,
	1977
	the
District
denied
	the
	request,
	challenging
the appropriateness
of
	the
proposed
	summer
school
unit.
3
In
	its
	petition,
	the Association
asked
	to
be
recognized
	as
the exclusive
	representative for
	a
	unit
	of regular
	summer
school
employees
	including but not
	limited to:
Regular
	full-time
	certificated
	and
	regular part-time
certificated
	summer
	school
	teachers, 	including
audiometrist,
	visually
	handicapped
	teachers,
	home
teachers,
	speech
therapists,
	nurses,
	children's
center 	teachers, 	resource 	teachers, 	rapid learning
center teachers,
	preschool
	teachers, 	counselors,
librarians,
	E.S.L.
	teachers, 	instrumental
music
teachers,
	hard
	of
hearing teachers, 	special
education
teachers,
	E.M.R.
	teachers, 	learning
disability
teachers,
	E.H.
	teachers,
and
	excluding:only those school
District
	employees,
	considered
management,
	supervisory
and
	confidential
as
	excludedby
	the
Act
as
	outlined
by
EERB.
	Certificated
management
positions are superintendent,
	assistant
superintendent for personnel,
	assistant
superintendent for instruction, 	director of pupilpersonnel
services,
	all
	full-time
	district
	level
positions	
having	
the
	title
	of coordinator,
	director,
or area administrator,
	all
	principals,
	all
	full-timevice principals, 	administrative
assistants, 	assistant
superintendent for 	business,
	director of building,
grounds and	
transportation, 	supervisor
of custodians,
and
	further	
excluding:
guidance
consultant, 	welfare
and
attendance
officer,
and
psychologists.
2

A
hearing
	on
	the matter
was
held
at
	the
District
office
	on
October 12,
	1977 	by a
	hearing
officer
for
	the
Educational
Employment
Relations
Board.
4 At
	the
start
of
the hearing, 	the
District
moved
	to dismiss 	the request
	on
	the
grounds
of
mootness. 	The
District
	took
	the
position
that
by
the date
	of
the hearing the
	1977 summer
school
	session
had
been
	concluded
	and
	there
	no
	longer
were any summer
school
employees.
	This
motion was
	denied
	by
	the hearing
officer.
FINDINGS
OF
FACT
The Redwood
City
School
District
	is
located
	in
San
Mateo County. 	The
District
has
15
	schools
and
	offers classes
for 	students
from
kindergarten
	through
	the eighth grade.
During
	the
	1977 summer
	session there
were
approximately
4,200
students.
	The
District
	has
	approximately
390
	regular
certificated
	employees
	during the
academic
	school year. 	In
1977,
	there
were 139 summer
school
	teachers.
Since
May
26, 	1976,
	the Association
has
	been
recognized as 	the exclusive representative of the
	certificated
employees
who
	teach
	in
	the
District
during the regular
	school
4By
act of the 1977
Legislature, 	the Educational Employment
Relations Board has been renamed
as the Public Employment
Relations Board; 	Chapter 1159,
	Statutes of 1977.
3

4
year.
5
This
	is
	the
	only
negotiating
	unit
	for
	certificated
employees
	but
	the
District
also
	has
	two
units
	for
	its
classified
	employees.
In
	choosing
	its
	summer
school
	teachers,
	the
District
follows
	a
	detailed
policy
which was
	adopted
	on
April
30,
1970.
	Under
	the
policy
persons teaching within the
District
have
	the
highest
priority
for
	summer
school assignments.
Within
	this
	group, 	those with
no
previous
summer
school
experience
	have
	the
	first
	preference
	followed
	by
	those with
the
	least
	continuous
summer
school experience.
	The
preferences
	continue
as
	follows: 	teachers
under
contract
	to
begin teaching
	in
	the
District, 	substitute
	teachers, 	teachers
who
	have
	terminated
	their
	continuing
contracts
with
the
District
	as
	of
the
	end
	of
the
	current
	year
and
	teachers
who
work
	in
	other
districts.
5The
	unit
	during 	the
	regular
year includes regular full-time
certificated
	and
	regular part-time
	certificated
	teachers
including the audiometrist, 	visually
handicapped
	teachers,
home
	teachers,
	speech
therapists,
	nurses,
	children's
	center
teachers,
	resource 	teachers, 	rapid learning center teachers,preschool 	teachers, 	counselors,
	librarians,
	E.S.L.
	teachers,
instrumental
music
	teachers,
	hard
	of
hearing teachers,
special
	education 	teachers,
	E.M.R.
	teachers, 	learning
teachers,
	and E.H.
	teachers,
	and
	excludesmanagement,
	supervisory,
	and
	confidential
employees.
Specifically
excluded from
	the
unit are: 	the superintendent,
assistant
superintendent for personnel,
	assistantsuperintendent for
	instruction, 	director of pupil personnel
services,
	all
	full-time District level
	having the
title
	of coordinator, 	director or area administrator,
	all
,
	all
	full-time vice
	,
	administrative
assistants, 	assistant superintendent for business, 	director
of building,
	grounds and
	transportation, 	supervisor of
custodians, 	guidance consultant, 	welfar~ and attendance
officer,
	and psychologists.
4

5
In
practice,
	according
	to
	testimony
at
	the
hearing,
the
District
	first
	hires
members
of
the
	regular
	staff
who
want
summer
positions.
	Applicants
	for
	the
	remaining
positions
are
either substitutes,
	persons
	who
	teach elsewhere
	or
unemployed
teachers.
	Among
	those
	remaining
	applicants,
	the
principal
at
a
school
may
hire
	according 	to
a
	particular
need
	or
because
a
teacher
	has
	substituted in that
	school
and
	the
principal
is
familiar
with
	that substitute 	teacher's
abilities.
Of
	the
	139 	summer
	school
	teachers
	in
1977,
	77
	were
regular
	certificated
employees. 	Even
with
	the
District's
policy
	favoring
	non-repeaters
among summer
school
	staff,
	many
of
	the
1977 summer
school
	teachers
	had
	taught
	in
previous
years.
	Of
the
	139
	who
	taught
in
1977,
	68
	taught
	in
	the
	summer
of
1976, 	and 52
	taught
	in
	the
	summer
of
1975. 	Of
the
	139
summer
	school
	teachers
	who
	taught
	in
1977,
	eight
had
	taught
	in
five previous
	summer
sessions,
	nine
	had
	taught
	in
four
previous
summer
	sessions,
	17 had
	taught
	in three
previous
summer
sessions,
	21 had
	taught
	in
	two
previous
	summer
sessions
and 31 had
	taught
	in
one
previous
summer
session.
	The 1977
summer
school
lasted
24
	days.
The
	salary
paid to
	summer
school
instructors in
recent years
	was
as follows:
	$700
	in
1969; 	$770
	in
1970,
1971, 	and 1974; 	$877
	in
1975i 	$913
	in
1976; 	and
$1,
	in 	in
	1
	the
	summer school 	teachers
were given a percentage pay
	increase equivalent to the
percentage pay
increase given to the 	teachers in the 	regular
school year. 	The arrangement tying the rate of summer school
5

6
pay
	to
	that
	for
	the
	regular
program was
	the
product
of
meeting
and
	conferring
	in
1975 between
	the
District
	and
	the
certificated
	employees
	council
under
	the
Winton
Act.
6
Upon
	its
	recognition
as 	the exclusive
	representative
in
1976,
	the
Association
made
salary
proposals
about
	summer
school
	teachers.
	However,
	following
	the
Belmont7
decision,
the
District
	took
	the
position
that
	summer
school
	teachers
were
	not
	within the
	unit
	and
	the
District
refused to
	bargain
about
matters
	relating
	to
	summer
school.
	At
	that
	time,
	the
Association
	asked
	the
District
for
	a
	letter
reciting
	the
agreements about
	summer
school
which
already
had been
	reached
and 	committing
	the
District
	to
	continue
	them
in
effect.
	The
District
did not
write
	the
	letter
but
	adopted
a
	regulation
instead.
	The
	regulation,
	which was
	adopted
	on
May
5,
	1977,
set
	the
1977 summer
school
	rate
at
$1,006 and
	established
a
policy
	that in
	subsequent
years the
	summer
school
pay would be
increased
	"by
	the
	same
percentage figure" granted
	in
the
previous regular
year.
	The
policy also
	set
	the length
of
the
summer
session,
	provided
	that
all
	summer
school
	teachers
would
be
	eligible
	to
participate in
	the Social Security
program and
cumulative
	sick leave of
one day
per
full
	summer
session.
	Whereas
other provisions of
the policy
merely
recorded
	existing practice,
	the sick leave policy
was new.
6Former Education Code Section 13080
et
7
EERB
Decision No.
	7, 	December 30, 	1976.
6

7
Whether
or
	not
	to
	conduct
a summer
	school
program
in
any
given
year
	is
	up
	to
	the
wishes
	of the
District
board
of
education
	because
	summer
	school
	is
not
	a
	state-mandated
program.
	The
	decision
whether or not
	to operate
a summer
program
is
	made
	each
year
	in
February,
	March
or
April.
	It
has
been
	the
	ongoing
practice of
the
District
	to
	offer
a summer
program and
	there
	was no
	evidence
presented
	to indicate
	that
the
District
contemplates
abandoning
	its
	summer program.
During summer
school the
District
offers
many
	courses
which
are
	taught during
	the 	regular
	academic
year.
	It
also
offers
more
	outdoor
programs and more
arts
	and
	crafts.
	The
summer
session
course
of
	study
	is
	less rigidly
	defined than
that
	of
the
	regular
year.
	About 50
	percent of
the
	summer
offerings
	are
	traditional
	academic
	subjects
	such
as 	reading,
writing
	and
	arithmetic.
	The
remainder
are
	in
	the
	arts,
crafts,
	music and
	similar subjects.
	There
	is
	no
	fixed
	class
size
for
	summer
	school.
Summer
	school
	teachers
must
hold
	valid
state
	teaching
credentials.
	Summer
school 	teachers are required to
	complete
lesson plans
	and
	to
	participate in
an
extracurricular
back-to-school
	activity.
	There
	is
	no formal
	evaluation
process for
	summer
	school teachers
	and
	they
are
	entitled
	to
no
formal hearing
	if
	they are 	to
be removed. 	Summer
school
teachers get
	no
	credit
	toward
	retirement in the
state
	teachers
retirement system and summer teaching provides no
credit
toward 	tenure.
	Summer school teachers are not
	eligible for
health insurance.
7

The
	District's
	deputy
superintendent
of
personnel
testified
	that
	it
would be
inefficient
for
	the
District
	to
negotiate
	and
	administer
a
	separate
	summer
school
unit
	because
of
the
short
length of
the
	summer
session.
	He
predicted
	that
the
	addition
	of
a summer
school
unit
	would
require
	the
hiring
of additional
clerical
employees and
	the
	devotion
of
more
	time
to
	negotiations
	by
District
administrators.
In
	addition
	to the
	evidence about
	summer
school,
	the
District
also
	presented
	testimony about
substitute
	teachers.
It
	was
	demonstrated
	in
this
	testimony
	that
	the
District
has
	no
formal
	evaluation process
	for
	substitutes.
	The
	transfer
policy
does
	not apply
	to
substitutes.
	A
substitute
	teacher
can
	be removed from
	the
	list
	of substitutes
without
a
hearing,
	Substitute
	teachers
may
qualify for
	the 	teachers
retirement
	system
after
	they
have
	taught
	for
	more
	than
100
days.
	Substitute
	teachers are
	not required 	to prepare lesson
plans.
	During
	the
regular year, 	there are
approximately
125
persons
	on
	the
District substitute
	teachers
	list.
LEGAL
	ISSUE
Is
a
	unit of
summer
school 	teachers
	an
appropriate
unit?
8

CONCLUSIONS
OF
LAW
There
are
	no
	comfortable
	solutions
	to the
	problems
presented
	by
	this
	case.
	If
a
	separate
	summer
school
unit
	is
to
be
created,
	the
parties will
	incur
numerous
difficulties
in
attempting to
	conduct
an
	election
and
	bargain
on an
artifically
short
	timetable.
	If
a
	separate
	summer
school
unit
is
	not to
	be
created,
	summer
school
	teachers
will effectively
be removed from
	the
	central rights
promised by
	the Educational
Employment
Relations
Act~	
The
	third alternative,
	merger
	of
summer
school
	teachers within the
unit
	of regular teachers,
	is
precluded
	by
EERB
decisions.
Before
any
	effort
is
made
	to
	choose which
of
the
	two
viable
alternatives
	is
	the
	least
bad,
	it
	is
	helpful to
analyze
precedent
	from
	the National
Labor
Relations
Board and
other
state
public
employment
	relations
boards.
The
	private sector
employees
with 	job
	tenure
most
closely
comparable
	to
	summer
school
	teachers are the seasonal
workers. 	Seasonal
workers
	are often
employed
in
	the
canning
and
	entertainment
industries.
	The
	nature of
those
	industries
requires
	a
	large
	buildup
	in
	the
work
force
	at certain
times
	of
the year.
	Employees
	are hired 	the
	work
and
	then dismissed 	the slack seasons. 	This
	build
up
	in
work
	is
predictable
	and
	follows
	established patterns year
after
year.
8 Gov. 	Code Sec. 	3540
	et
seq.
9

In
its
	decisions,
	the
NLRB
does
not
always make
clear
distinctions
between
	seasonal
	and 	temporary employees.
However,
	it
	would
	appear
	that in
determining
	the
unit
placement
of
seasonal
	employees,
	the
NLRB
	focuses
	first
	on
whether
	the seasonal
employees have any
reasonable expectation
of
	reemployment
	in
subsequent seasons.
	If
the seasonal
employees
	do
not
	have a
high
rate
	of return
and have no
reasonable
	expectation of
	reemployment,
	the
	NLRB
	holds
	that
they
	are casual
	employees and
are not
	covered
	by
	the
	federal
law.
	Children's
Hospital
	of Pittsburgh
222
	NLRB
	588,
	91
LRRM
1440 	(1976);
	Aquacultural
	Research Corp. 	215
NLRB
1,
	87
LRRM
1496 	(1974);
	See's
Candy Shops,
	Inc.
	202
NLRB
538, 	82
LRRM
1575 	(1973).
	In
reaching 	the
decision
about whether
certain
seasonal
employees
are casual, 	the
NLRB
	sometimes draws what
appear to
	be
arbitrary lines
	based
solely
upon
regularity
of
work and
	length of service.
	Trans World
Airlines, 	Inc.
	211
NLRB
	733, 	86
LRRM
1434 	(1974);
	See's
Candy Shops,
	Inc.,
supra.
9
If
the seasonal
	employees
are held not to
	be
casual
because they have a
	reasonable expectation of
reemployment,
the
NLRB
next determines whether
	to place
	them
within the
unit
of
year-round employees
	or in
a
	separate unit of seasonal
workers. 	This decision appears 	to
be made
	largely
on such
9A
court of
appeal once
	that 	the
	test actually
usedby
	the
NLRB
	is
	not whether the seasonal employees have a
reasonable expectation of
reemployment but whether or not theunion wants them within the unit.
	Maine Sugar
Industries,
Inc. 	425 F.2d 924, 	74
LRRM
2197 	(C.A. 	1, 	1970).
10

11
traditional
	community
of
interest
	criteria
as
	commonality
of
job
	duties
	and
supervision,
	Millbrook,
	Inc.
	204
	NLRB
1148, 	83
LRRM
1482
	(1973),
	Baumer Foods,
	Inc.
	190
NLRB
690,
	77
LRRM
1270
	(1971);
	commonality
of
work and
benefits,
	Sprague,
	C.H. 	&
Son Co. 	428
	F.2d
938
	(enf.
	as modif'd
	175
NLRB
378),
	74
LRRM
2641 	(C.A.
	1,
	1970).
	Where
	the seasonal
workers have
specialized duties
	which
	differ
	from
	the
year-round
workers,
the seasonal
workers
	are
placed
in
	their
	own
unit.
	Six Flags
Over
Georgia,
	Inc.
	215
NLRB
809,
	88
	LRRM
1057
	(1974).
The
precedent
from
	the public
	sector in
other
	states
favors
	inclusion of
summer employees
	in
	the
	same
unit
	as
year-round
	employees.
	In
Massachusetts, 	the
	labor
	relations
commission concluded
	that
	the deadlines for
	local
government
budgeting
would
	not permit the
	creation of
a
	separate unit for
a
	city's
	summer employees. 	The commission
held
	that
	summer
employees could be
	represented
	only
in
	the
	same
unit
as
full-time
	employees.
	City
of
Gloucester
and
Gloucester
Summer
Employees
Assn.,
	l
	MLC
1170 	(1974). 	Oregon
also
has
	included
summer employees
	in
	the
	same
unit
with year-round workers.
International
Union
of
Operating Engineers,
	Local 701
	v.
Klamath
Irrigation District,
	2
PECBR
894 	(1976).
	In
New
York,
the
	state director of representation placed
a group
	of
summer
school teachers in
a
	separate unit
	from
	the regular-year
teachers. 	Great Neck Board
of Education, 	Union Free School
District
No. 	7,
	Town
of
Hempstead and Great Neck Teachers
Association, 	3
PERE
	4022 	(1970). 	Subsequently, 	however, 	the
Public Employment Relations Board reversed 	the director and
11

12
placed 	the
	summer
school
	teachers
	in
	the
unit
with
regular-year
	teachers.
	Great
Neck Board
of
Education,
	Union
Free
School
District
No.
	7,
	Town
of
North
Hempstead and
Great
Neck
Teachers
Association,
	4
PERB
	3017
	(1971).
	The
New
York
board
	similarly
included seasonal
	state
	employees
	in
a
	unit
with year-round
	state
workers.
	State
of
New
York and
New
York
State
Employees
Council 50,
	AFSCME,
	AFL-CIO
and
	Civil
Service
Employees
Association,
	Inc.
	5
PERB
	3022
	(1972).
	In
State
of
New
York,
	the
New
York board adopted
	the following
	standards
for distinguishing
	those seasonal
	employees
who
are
	covered
	by
the
New
York law from
	those
	who
are "casual"
and
	thus not
covered:
....
The
	standards are
	that
	employment
	is
casual
	if
	1
(1)
	the
	season
	is
shorter
	than
six
weeks a
year;
	or
	(2)
	the
	employees
arerequired 	to
work fewer
	than
20
	hours
	a week
(the
Board
	recognized
	that
	this
	standard
might
not apply to
	teachers, 	especially
in
institutions
	of
higher education); 	or
	(3)
fewer
	than
60
	percent of the
	employees
	in
the
	title
return for
	at least
	two
	sucessive
seasons.'
	5
PERE
	3042.
There
	is
no
California
precedent about
a
	separate unit for
summer
school teachers.
	The
	Public
Employment
Relations
	Board
has,
	however,
	considered whether summer
	school teachers
	shall
	be
	in
the
	same
	unit
as 	regular-year 	teachers
	and has concluded they should
not.
	Belmont,
	footnote
	No.
	7. 	supra; 	Petaluma
City Elementary and
High School
Districts,
	EERB
Decision
No. 	9, 	22,
Haven Unified School
District,
	EERB
Decision
No. 	14, March 22, 	1977.
12

13
In
Belmont,
	the
Board
	noted
	that
because
	summer
school
teachers are hired
	on a one-summer
basis,
	"a
	summer
school
	teacher
enjoys
no
	expectation
of future
	employment
as
a summer
school
teacher."
	The Board
also
	cited
	the
differences
between pay and
fringe benefits
	between summer
	school
and
	regular
year
	teachers
	and
observed
	that
	summer
school provides
	no
	accrual of
rights
	toward
tenure
	or
	permanent
	status.
	In
stating
	its
	holding,
	the
principal
decision
	concludes:
For
	the
	above
	reasons,
	we
	find lacking
a
community
of
interest
between summer
school
and
	regular teachers; 	therefore
	summer
school
	teachers
	shall
be
	excluded
from
	the
unit of regular teachers.
In
Petaluma,
	the
Board
	considered
	evidence about
pay and
benefits
	and
	the
	different
nature
	of
the
	summer
school
program. 	The
Board
	again declined 	to put
	summer
school
	teachers
	in
	the
	same
unit
as regular 	teachers
	and
	stated that
	its
	decision
was based upon
	the
community
of
interest criterion.
In
New
Haven,
	the
Board once more
	considered evidence about
pay and
benefits
and
	the
differing
nature of the
	summer
school
program.
	In
holding
	that
	summer
	school teachers
	do
not belong
in
the
	same
	unit
with the 	regular-year 	teachers, 	the
Board
	explained:
Because
of
	the tenuous and
	short-term
nature of the
	employment
of
summer
school
teachers
	and because
of the separate nature
of the
	summer
school
program,
	we
	find 	thatthe
	summer school teachers lack
a community
of interest
with the 	teachers
	and
therefore exclude them from the stipulated
unit.
13

14
It
	is
	significant that
	even though
	the
Board
	considered
	the
expectation of
	reemployment
	in
Belmont and
	the
short-term
nature
	of
the
	summer program
in
Petaluma and
New
Haven,
	it
	specifically
based
its
	decisions
	in
all
	three
	cases
	upon community
of
interest
criteria.
	The Board
	did not
	find
	summer
school
employees
	to
	be
"casual.
11	
It
did not exclude
	them from
protections
under
	the
Educational
Employment
Relations
Act.
In the present case, 	the Association
argues
	that
	summer
school
	teachers are
	employees
as
	that
	term
is
	used
	in
Government
Code
Section 3540.1(j)
10 and
	are 	thus
covered
by
	the Educational
Employment
Relations
Act.
	The
Association reasons
	that
	exclusions
of
persons
	from
protection of
the
	statute
must be
kept
	to
minimum
and
	it
	argues
	that
	summer
school
	teachers are
	not
	"casual"
	employees
as
	that
	term
is
	defined by	
the
NLRB.
	Finally,
	the Association
concludes
	that
summer
school
	teachers
	do
	share
a community
of
interest
	and
	thus
comprise an
appropriate
unit.
The
District
	first
	argues
	that
	summer
school
	teachers are
"casual"
and
	thus cannot be
placed
into
a
negotiating unit.
	In the
alternative,
	the
District
	contends
	that
	if
summer
school
	teachers
10 Gov. 	Code Sec. 	3540.1(j) 	reads as follows:
"Public school employee"
	or
	"employee" means
any person employed by any
public schoolemployer 	persons elected
	by popular
vote, 	persons appointed by the Governor of
this 	state,
	management employees, 	and
confidential
employees.
14

15
are
	"employees"
as
	that
	term
is
	used
	in
the
	statute,
	they
	do
not
comprise
	an
appropriate
	unit
	by
	themselves.
	In support
of
its
	first
position,
	the
District
argues
	that
	summer
school
	teachers "lack
a
substantial
	and
	continuing
employment
	relationship"
	with
	the
District.
	Citing
precedent
	from
New
York,
	the
District
reasons
	that
the
	definition
in
Government Code
Section 3540.1(j)
	cannot
	be
all
inclusive.
	The
District
factually distinguishes
	the
Great
Neck
decision.
	As
	to
	its
alternative
position,
	the
District
argues
	that
since
	the
Association's
petition
seeks
	representation
only
of
summer
school
	teachers
	any
discussion
about
	other
groupings
	of
employees
would be
irrelevant. 	Finally,
	the
District
argues
	that
	the
	creation
of
a summer
school
unit
would
hinder the
	efficiency
of the
District's
operations.
Initially,
	it
	is
	concluded
	that
	summer
school
	teachers
are
employees
as
	that
	term
is
	defined
	under Government Code
Section
3540.1(j).
	The
	PERB
has
not
yet
	excluded
any
	school
employees
as
"casual." 	In
fact,
	the
	PERB
has
	hesitated in
	removing any group
	of
employees from
	the coverage
of the Educational
Employment
Relations
Act.
11
11
In Pittsburg
Unified School
District,
	EERB
Decision
No. 	3,
October 14, 	1976,
	the
Board
	refused 	to exclude noon duty
supervisors
	from
	the
	classified
	employees
unit
	even though
Education Code Sec. 	45103 	(former Sec. 	13581)
	excludes
	noon
duty supervisors
	from
	the
	classified service. 	In
Lompoc
Unified School
District,
	EERB
Decision
No.
	13, 	March 17,
1977, Member Gonzalez wrote
	in
a
	opinion
	that
	the
EERA
	"indicates
an
	intent 	to
make
	negotiating rights
broadly
available."
	For
	this
	reason,
	he expressed
	intent to
view
"narrowly" 	the exclusion of persons from
all
	rights asmanagement employees.
	In excluding confidential
	employees
the
Board has 	limited their
number 	to a "small nucleus of
individuals." 	Sierra
Sands Unified School
District,
	EERB
Decision No. 	2, 	October 14, 	1976.
15

16
Although the District is under no obligation to operate a
summer school program, 12 the Redwood City summer school is an
on-going operation and there was no evidence presented 	to indicate
it may be terminated. 	In spite of the District's effort to spread
the summer school work around among the 	teaching staff, 	nearly half
of the 1977 summer school teachers had 	taught also during the 1976
summer session. 	More than half of the District's 1977 summer school
teachers 	(86 	of 139) 	had 	taught in at least one previous summer
session. 	From these statistics, 	it would seem that Redwood City
summer school teachers have a reasonable expectation of reemployment.
Because Redwood City summer school 	teachers have a
reasonable expectation of reemployment, 	it is held that the
District's summer school 	teachers are employees within the meaning
of Government Code Section 3540.1(j).
This conclusion leads 	to the ultimate issue in the case,
whether the proposed unit of summer school teachers is an
appropriate unit.
The criteria for determination of the appropriateness of a
unit are spelled out in Government Code Section 3545. 13 It seems
12summer school is not a mandatory program. 	Education Code
Sections 37229 and 37250 .
. 	Code Sec. 	as follows:
(a) 	In each case where the 	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. 	(continued)
16

17
apparent
	that
	summer
school
	teachers
	comprise
a community
of
interest.
	Although
	some
	teach
	academic
	courses
while
others
	teach
recreational
	courses, 	the
	work
of
all
	summer
school
	teachers
	is
	to
offer instruction
	to
	students.
	All
	must be
	certificated.
	All
summer
	school
	techers
	share
	common
	benefits
and have
	the
	common
limitations
of
not
	receiving
	credit
	toward
	tenure or
participation
in
	the
	state
	teachers retirement
	system.
(b)
	In
all
	cases:(1) 	A
negotiating unit 	that includes classroom
teachers
shall
not
be
appropriate unless
	it
	at least
	includes
all
	ofthe classroom teachers
	employed by
	the public schoolemployer, 	except
management employees,
	supervisoryemployees, 	and
	confidential
	employees.
(2) A
	unit of 	shall notbe
appropriate unless
	it
	includes
all
	supervisory employees
employed by
	the
district
	and
shall
not be
	represented
by 	thesame employee
	organization as employees
whom
the
supervisory employees supervise.(3) 	Classified
	employees and
	certificated
	employees
shallnot be included in the same negotiating unit.
The
District
	contends
	that
	even
	if
summer
school
	teachers
are
	employees
	they
	do
not
	constitute
an
appropriate
unit.
	At
	the
hearing, 	the
District
suggested
	that
perhaps
all
	temporary employees
might be an
appropriate
	unit.
	Apparently
in
support
of
this
argument,
	the
District
introduced
	some
	evidence about
	substitute
teachers. 	In
certain
respects
	substitute
	teachers
	do have a
relationship
with
	the
District that
	is
	similar	
to	
that
	of
summer
school
	teachers. 	Neither
has
	the
	right
	to
a
	hearing
prior
	to
dismissal.
	Neither
	is
	subject
	to the
District's
	formal
	evaluation
process.
	There
are,
	however, 	some
differences.
	For
one
	thing,
substitutes
	teach
primarily
	during the 	regular year.
	Summer
school
teachers
	teach only
in
the
	summer.
	Substitutes typically are
on-call
employees.
	All
	summer
school 	teachers teach
	for
a
	fixed
17

18
length
of
time.
	Substitutes
are
	eligible
	for
	the
State
Teachers'
Retirement
System.
	Summer
school
	teachers
	are
eligible
for Social
Security
but not 	the
	teachers'
	retirement
	system.
It
	is
	not
	necessary
	in
	the
present
	case
	to
	decide
whether
these differences
	between summer
school
	teachers
	and
substitute
teachers
	would
preclude
placement
of
both
groups
	in
	the
	same
	unit.
It
might
	well
	be
	that
	a
proper
residual unit
	could
	be formed
	with
summer
school
	teachers,
	substitutes
and
	other
certificated
	employees
not 	included
in
	the
	regular-year
unit.
	But
	that
	issue
	is
not
presented
	here
because
	the Association
has
	requested
	only
a
	unit of
summer
school
	teachers.
	Under
	the Board's decision
in
Antioch
14
Unified
School
District
	a
	unit 	that
	is
appropriate for
	meeting
and
	negotiating
need
	not
be
	the
most
	appropriate
unit.
	The Board
envisions
	a
balancing process
	among
	the various
	criteria
in
the
statute.
	The
District
must
	fail,
	therefore, 	in
	its
apparent
argument
	that
	the
	summer
	school
unit
must be
denied because
some
other possible unit
might be more
appropriate.
The second
	statutory criterion
--
	established practices
is
	not easy to apply
	in the present case.
	Under
	the
Winton
Act,
	the
interests
	of
summer
school teachers
	were
	represented
by
	the
certificated
	council
which
also represented the
	interests
of regular-year 	teachers.
	While
	this
might
	otherwise support the
argument
	that
	summer school 	teachers should be
in
	the
	same
unit as
teachers, 	the
Board has 	such a
unit in
14EERB
Decision No. 	37, November 7, 	1977,
18

Belmont,
	Petaluma
and
New
Haven. 	Moreover,
	the
Board
has
consistently
held
	that
past practices
under
	the
Winton Act
are
	to
be
given
	little
weight.
15
Under
	this
	precedent, 	the hearing
officer
therefore
	accords
	little
weight
	to the
history
of
summer
school
representation
	under
	the
	Winton
Act.
The
	final criterion
--
efficiency of
operation
--
presents
serious
problems.
	The
	District's
1977 summer
session
lasted
24
days.
	That
	is
a
	very
short
period of
	time
	for
	an
election
	to
be
held,
	an
	exclusive
	representative
	to
	be
certified
	(if
one
is
successful)
	and a
	contract
	to
be
	negotiated.
	If
	the
parties
are 	to
negotiate
	the
	agreement
during
	that short
period
of
time, 	they
will
be on a
	tightly
	compressed
	timetable
which
	is
	hardly
	conducive
	to
the
	kind
	of give-and-take
necessary
for
	fruitful
	negotiations.
	If
the
	parties
	cannot
	negotiate
	that
quickly,
	it
	is
unclear
what
happens
	next.
	There
	are
numerous unanswered
	questions
about
what
rights
	the
parties
would have
after
	the
	completion
of
summer
school
in
any
given year.
The
	alternative,
	however,
	is
	to
	deny
	the
creation of
a
summer
school
unit
	and
	thereby
	deny
all
	the protections
	and
	rights
of the Educational
Employment
Relations
Act
	to
	summer
school
teachers.
	The
parties
	have
	cited
	no
precedent
which would
allow
the
denial of rights
	to
	employees because
	inefficiencies inherent in the
unit.
15The Board's rationale is
	explained fully in Antioch
Unified School
Distrit, 	footnote No. 	14, 	supra.
19

20
Therefore,
	for
	the reasons
	stated
here
	and on
	the
basis of
the
	entire
	record
	in
	this
	case,
	a
	separate
unit
	of
summer
school
teachers
	is
	held
	to
	be an
appropriate
unit.
PROPOSED
ORDER
It
	is
	the
	proposed
	order
	that
	summer
school
	teachers are
employees
as
	that
	term
	is
	defined
	in
Government Code
Section
3540.1(j)
	and
	that
	the following
	unit
	is
	appropriate for
meeting
and
negotiating,
	provided
	that
	an employee
	organization
becomes
	the
exclusive
	representative:
Regular
	full-time
	certificated
and
regular
part-time
	certificated
summer
school
	teachers,including audiometrist,
	visually
handicapped
teachers,
	home
	teachers,
	speech
	therapists,
nurses,
	children's
	center teachers,
	resource
teachers, 	rapid learning center teachers,preschool
	teachers,
	counselors,
	librarians,
E.S.L.
	teachers, 	instrumental
music
	teachers,
hard
	of
hearing
	teachers, 	special
	education
teachers,
	E.M.R.
	teachers, 	learning
disability
teachers,
	and E.H.
	teachers,
	and
	excluding
	the
superintendent,
	assistant
	superintendent forpersonnel,
	assistant
	superintendent for
instruction, 	director of pupil
personnel
services,
	all
	full-time
District
level
positions
having
	the
	title
of coordinator,
director
	or area administrator,
	all
principals,
all
	full-time
	vice
principals, 	administrative
assistants, 	assistant
	superintendent forbusiness,
	director of building,
	grounds and
,
	of custodians,guidance
	consultant, 	welfare
and
	attendance
officer,
	psychologists
and
all
management,
supervisory
and
	confidential
	employees.
20

21
The
	parties
	have seven 	(7)
	calendar
days from
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
February 6,
	1978, 	and a
Notice
of
Decision
will
	issue
	from
	the
Board.
Dated: 	January
24, 	1978
Ronald E. 	Blubaugh
Hearing
Officer
21