Dixie Elementary School District (PERB 0171E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
DIXIE
	ELEMENTARY SCHOOL
	DISTRICT,
Employer,
and
DIXIE
	TEACHERS 	ASSOCIATION, 	CTA/NEA,
Employee
	Organization.
Case
	No. 	SF-UM-87
(R-
	362)
PERB
	Decision
	No.
	171
August 	11,
	1981
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Appearances:	
Diana
	K.
	Smith,
	Attorney
	(Breon,
	Galgani
	and
Godino)
	for 	the
	Dixie 	Elementary 	School
	District;
	Kirsten
	L.
Zerger, 	Attorney 	for 	the 	Dixie 	Teachers
	Association,
	CTA/NEA.
Before
	Jaeger,
	Moore, 	and
	Tovarr
	Members.
DECISION
The	
Dixie	
Elementary	
School
	District
	(hereafter
	District)
has 	excepted
	to
	a
	Public
	Employment
	Relations	
Board	
(hereafter
PERB
	or
	Board)
	hearing
	officer's	
proposed	
decision
	holding
	a
unit 	containing
	full-time,
	temporary
	and
	substitute
	teachers
appropriate
	under
	the 	Educational	
Employment	
Relations
	Act
(hereafter
	EERA
	or Act).
1
The
	Board
	itself
	affirms 	the 	hearing
officer's
	decision.
1
Government 	Code
	sections
	3540
	et	
seq. 	All
	statutoryreferences 	are 	to	
the	
California
	Government 	Code
	unless
otherwise 	specified.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DIXIE ELEMENTARY SCHOOL DISTRICT,
Employer , 	Case No. SF-UM-87
(R- 362)
and
DIXIE TEACHERS ASSOCIATION, CTA/NEA, 	PERB Decision No. 171
August 11, 1981Employee Organization.
Appearances : 	Diana K. Smith, Attorney (Breon, Galgani and
Godino) for the Dixie Elementary School District; Kirsten L.
Zerger, Attorney for the Dixie Teachers Association, CTA/NEA.
Before Jaeger, Moore, and Tovar, Members.
DECISION
The Dixie Elementary School District (hereafter District)
has excepted to a Public Employment Relations Board (hereafter
PERB or Board) hearing officer's proposed decision holding a
unit containing full-time, temporary and substitute teachers
appropriate under the Educational Employment Relations Act
(hereafter EERA or Act) . 	The Board itself affirms the hearing
officer's decision.
Government Code sections 3540 et seq. All statutory
references are to the California Government Code unless
otherwise specified.

PROCEDURAL
	HISTORY
	AND
	FACTS
The
	hearing
	officer's
	statement 	of
	the
	procedural
	history
and
	findings 	of
	fact
	in
	this
	case, 	attached 	hereto,
	are
	free
from
	prejudicial 	error
	and
	are
	adopted
	by
	the
	Board
	itself.
DISCUSSION
This 	case 	involves
	an
	amended
	petition	
for	
unit
modification
	filed
	by
	the
	Dixie 	Teachers
	Association
	CTA/NEA
(hereafter
	DTA).
	The
	petition
	seeks
	to
	add
	certain
	day-to-day
substitute
	teachers	
and	
certain
	temporary
	teachers 	to
	DTA
1 s
existing 	unit
	of
	regular
	full-time, 	substitute
	and
	temporary
teachers.
2	
The
	unit
	has
	heretofore
	included
	all
	regular,
full-time 	teachers,
	temporary
	teachers
	employed	
for	
more
	than
75
	percent 	of 	the 	school
	year,
	substitute
	teachers
	employed
for
	more
	than
	75
	percent
	of 	the
	prior
	school
	year,
	and
temporary
	and
	substitute
	teachers
	on
	layoff
	with 	re-employment
rights.
2specifically,
	the
	August
	9,
	1979
	petition
	seeks:
	"The
addition 	to 	the
	existing 	unit
	of
	(all) 	substitute
	teachers 	inthe 	Dixie 	School
	District
	employed
	to
	fill
	positions 	of
regularly
	employed
	persons 	absent
	from
	service,
	except 	those
who
	serve
	75%
	or
	more
	of 	the 	days 	school
	was
	in 	session 	during
the 	preceding 	school 	year 	or
	who
	have 	re-employment
	rights
under
	the 	Education
	Code, 	and 	have 	worked
	for 	the
	District
	in
such
	capacity 	for
	at 	least
	two 	(2)
	days 	during
	any
	school
year."
	(Emphasis
	in
	original.)
	The
	Association
	amended
	this
petition
	by
	letter,
	on	
May	
23, 	1980,
	to 	include 	personneltermed 	"temporary."
PROCEDURAL HISTORY AND FACTS
The hearing officer's statement of the procedural history
and findings of fact in this case, attached hereto, are free
from prejudicial error and are adopted by the Board itself.
DISCUSSION
This case involves an amended petition for unit
modification filed by the Dixie Teachers Association CTA/NEA
(hereafter DTA) . The petition seeks to add certain day-to-day
substitute teachers and certain temporary teachers to DTA's
existing unit of regular full-time, substitute and temporary
teachers. 2 The unit has heretofore included all regular,
full-time teachers, temporary teachers employed for more than
75 percent of the school year, substitute teachers employed
for more than 75 percent of the prior school year, and
temporary and substitute teachers on layoff with re-employment
rights.
2Specifically, the August 9, 1979 petition seeks: "The
addition to the existing unit of (all) substitute teachers in
the Dixie School District employed to fill positions of
regularly employed persons absent from service, except those
who serve 758 or more of the days school was in session during
the preceding school year or who have re-employment rights
under the Education Code, and have worked for the District in
such capacity for at least two (2) days during any school
year . " 	(Emphasis in original. ) The Association amended this
petition by letter, on May 23, 1980, to include personnel
termed "temporary. "
22

The
	District
	has
	challenged
	the
	appropriateness 	of 	the
	unit
sought.
	It
	argues
	that
	no
	community
	of
	interest
	exists
	between
the
	petitioned-for 	substitutes
	and
	those
	other 	teachers
currently
	represented
	in 	the
	established 	unit
	and,
	further,
that
	such
	a
	configuration
	would 	be
	"disruptive
	to
	the
	efficient
operation 	of 	the
	District."
	The
	District
	does
	not
	take
exception
	to 	inclusion
	of 	temporaries 	in 	the
	existing
	unit.
The
	Board
	has
	interpreted
	the
	statutory
	provisions
concerning
	determination 	of 	appropriate 	units3 	to
	set	
up 	a
rebuttable
	presumption
	that
	all
	classroom
	teachers
	be
	contained
3sections
	3545(a)
	and 	(b)
	set
	forth
	the 	standards
	for
determination 	of
	an
	appropriate
	unit.
	Subsection
	(a)
	provides:
(a)
	In 	each
	case
	where
	the 	appropriateness
of
	the
	unit
	is
	an
	issue,
	the
	Board
shall
	decide 	the 	question
	on
	the
	basisof 	the
	community
	of
	interest
	betweenand
	among
	the
	employees
	and
	theirestablished 	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.
(Emphasis
	added.)
Subsection
	(b) (1)
	provides:
(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
	employedby
	the 	public 	school 	employer, 	except
management
	employees, 	supervisoryemployees,
	and	
confidential	
employees.
3
The District has challenged the appropriateness of the unit
sought. It argues that no community of interest exists between
the petitioned-for substitutes and those other teachers
currently represented in the established unit and, further,
that such a configuration would be "disruptive to the efficient
operation of the District. " The District does not take
exception to inclusion of temporaries in the existing unit.
The Board has interpreted the statutory provisions
concerning determination of appropriate units to set up a
rebuttable presumption that all classroom teachers be contained
3Sections 3545 (a) and (b) set forth the standards for
determination of an appropriate unit. Subsection (a) provides:
(a) 	In each case where the appropriateness
of the unit is an issue, the Board
shall decide the question on the basis
of the community of interest between
and among the employees and their
established practices including, among
other things, the extent to which such
employees belong to the same employee
organization, and the effect of the
size of the unit on the efficient
operation of the school district.
(Emphasis added.)
Subsection (b) (1) provides:
(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.
3

in
	a
	single
	unit. 	Peralta
	Community
	College
	District
	(11/17/78)
PERB
	Decision
	No.
	77.
The
	District,
	in
	its
	attempt
	to 	rebut
	the
	Peralta
presumption,
	first
	asserts 	that 	substitutes	
do	
not
	perform
	the
same 	work
	as
	the
	regular
	classroom
	teachers.
	However,
	as
evidenced	
by	
the 	record
	herein,
	substitutes
	do
	perform
	many
	of
the
	same
	functions 	of 	the
	regular 	teachers.
	They
	carry 	out
lesson 	plans,
	administer
	tests,
	prepare
	bulletin
	boards,
evaluate 	students,
	participate
	in
	disciplinary
	conferences 	with
children
	and
	parents,
	accompany
	students
	on
	field
	trips,
	and
supervise
	instructional
	aides
	and
	parent 	volunteers.
	Although
they
	are
	not 	required 	to
	do
	so, 	they
	often 	attend
	open
	house,
participate
	in 	curriculum planning
	and
	attend 	faculty
	meetings.
Substitute
	and
	regular 	teachers 	frequently 	consult
	one
another 	regarding
	students,
	work
	closely 	together,
	share 	the
same 	work
	locations
	and
	perform
	basically
	the
	same
	job
functions.
	The
	substitute's
	primary
	responsibility 	is
	to 	carry
forth
	with 	the 	plans
	and
	goals 	of 	the 	teacher 	he/she
	is
replacing.
	Phone
	contact
	is 	often
	made
	on
	a
	daily 	basis
between
	the
	substitute
	and
	such
	teacher.
	We
	therefore
	conclude
that
	the
	petitioned-for 	substitutes
	do
	perform
	work
R11hRtRntially
	RimilRr 	to 	the 	regular 	classroom 	teachers.
The
	District 	also 	argues
	that 	day-to-day
	substitutes
	do
	not
have
	the
	requisite
	expectancy 	of 	continued
	employment. 	The
4
in a single unit. Peralta Community College District (11/17/78)
PERB Decision No. 77.
The District, in its attempt to rebut the Peralta
presumption, first asserts that substitutes do not perform the
same work as the regular classroom teachers. 	However , as
evidenced by the record herein, substitutes do perform many of
the same functions of the regular teachers. They carry out
lesson plans, administer tests, prepare bulletin boards,
evaluate students, participate in disciplinary conferences with
children and parents, accompany students on field trips, and
supervise instructional aides and parent volunteers. Although
they are not required to do so, they often attend open house,
participate in curriculum planning and attend faculty meetings.
Substitute and regular teachers frequently consult one
another regarding students, work closely together, share the
same work locations and perform basically the same job
functions. 	The substitute's primary responsibility is to carry
forth with the plans and goals of the teacher he/she is
replacing. Phone contact is often made on a daily basis
between the substitute and such teacher. We therefore conclude
that the petitioned-for substitutes do perform work
substantially similar to the regular classroom teachers.
The District also argues that day-to-day substitutes do not
have the requisite expectancy of continued employment. The

Board
	finds,
	however,
	that
	it
	is
	reasonable
	for
	substitute
teachers
	as
	a
	class
	to
	expect
	future
	employment
	given
	that
	the
school
	employer
	repeatedly
	employs
	substitutes
	as
	a
	.regular
	and
integral 	part
	of
	the
	work
	force.
	The
	record
	below
	reflects
that
	the
	District
	hires
	from
	a
	pool
	of
	substitutes
	who
	have
been
	listed
	as
	eligible
	and
	continually 	available
	for
	hire
	as
substitutes
	and
	have 	been 	employed
	in
	that
	capacity
	for
	over
three
	and,
	in
	some
	instances,
	as
	many
	as
	thirteen
	years.
The
	District
	characterizes
	the
	substitute
	who
	works
	as
	few
as
	two
	days
	a
	year 	as
	"casual"
	and
	asserts 	that
	no
	community
	of
interest 	exists
	between 	such
	a
	classroom
	teacher
	and
	a
	regular
teacher
	working	
the	
full
	school
	year.
	The
	District
	then
advances
	a
	related
	argument:
	that
	the 	proposed
	unit 	contains
employees
	whose
	number-of-days-employment
	vary
	and
	this
variation
	is
	so
	substantial
	as
	to
	undermine
	the 	existence 	of
	a
community
	of
	interest
	among
	them.
The
	Board
	notes,
	with 	regard 	to
	both
	these
	objections, 	that
the
	District 	is
	willing 	to 	recognize
	a
	separate 	unit 	of
substitute
	teachers
	and
	therefore,
	by
	implication,
	is 	willing
to 	admit
	that
	such
	a
	unit 	possesses
	a
	community
	of
	interest.
The
	District
	also
	does 	not 	question 	the 	existence 	of
	a
community
	of
	interest
	between
	those
	substitutes
	contained 	in
the 	existing 	unit
	and
	the 	regular 	full-time 	teachers 	in
	that
unit.
	Yet, 	both 	such
	unit 	configurations
	have 	two
5
Board finds, however, that it is reasonable for substitute
teachers as a class to expect future employment given that the
school employer repeatedly employs substitutes as a regular and
integral part of the work force. The record below reflects
that the District hires from a pool of substitutes who have
been listed as eligible and continually available for hire as
substitutes and have been employed in that capacity for over
three and, in some instances, as many as thirteen years.
The District characterizes the substitute who works as few
as two days a year as "casual" and asserts that no community of
interest exists between such a classroom teacher and a regular
teacher working the full school year. The District then
advances a related argument: that the proposed unit contains
employees whose number-of-days-employment vary and this
variation is so substantial as to undermine the existence of a
community of interest among them.
The Board notes, with regard to both these objections, that
the District is willing to recognize a separate unit of
substitute teachers and therefore, by implication, is willing
to admit that such a unit possesses a community of interest.
The District also does not question the existence of a
community of interest between those substitutes contained in
the existing unit and the regular full-time teachers in that
unit. Yet, both such unit configurations have two
5

characteristics
	in
	common
	with 	the
	petitioned-for 	unit:
	each
unit
	contains 	teachers
	who
	perform
	substitute
	work
	as 	seldom 	as
one
	or
	two
	days
	a
	year,and, 	there
	is
	a
	substantial 	variation
	within
each
	unit
	as
	to
	the
	number
	of
	days
	worked.
	A
separate
	unit
	of
substitutes
	could
	contain
	persons
	working
	as
	few
	as
	one
	or
	two
days
	or
	as
	much
	as
	74
	percent 	of
	the 	school
	year.
	The
	existing
unit
	could
	contain 	teachers
	on
	layoff
	performing
	substitute
work
	for
	as
	few
	as
	one
	or
	two
	days 	as
	well 	as
	regular 	teachers
working
	the
	total
	number
	of
	school
	days
	per
	year.4
The
	presence 	of
	teachers
	working
	as
	few
	as
	one
	or
	two
	days
per 	year
	and
	the
	variation
	as
	to
	number-of-days-employment 	has
not 	given
	rise
	to
	a
	breakdown
	within
	the
	existing 	unit,
	nor 	has
it
	given
	rise
	to
	an
	objection 	that
	no
	community
	of
	interest
exists
	within
	a
	separate 	unit
	of
	substitutes.
	This
	leads 	the
Board
	to
	conclude
	that
	such
	objections 	are 	of
	little
	or
	no
significance
	in 	determining 	the 	appropriateness 	of 	the 	proposed
unit.
	The
	National
	Labor
	Relations
	Board
	(NLRB)
	reached
	the
same
	conclusion. 	In 	Fresno
	Auto
	Auction, 	Inc.
	(1967) 	167
	NLRB
878 	[66
	LRRM
	1177], 	the
	employer
	objected 	to 	the
	petitioned-for
4As
	noted 	above,
	the 	existing 	unit
	is
	defined 	as
containing 	temporaries
	employed
	for
	more
	than
	75
	percent 	of 	theyear
	and
	substitutes	
who	
worked
	over
	75
	percent 	of 	the 	previous
year.
	A
	separate 	unit
	of
	substitutes
	would
	contain 	teachers
working
	less
	than
	75
	percent 	of 	the 	previous 	year.
	The
existing 	unit 	also 	contains 	teachers
	on
	layoff
	performing
substitute
	or 	temporary 	work, 	even 	though 	the 	annual
number-of-days-employment
	may
	fall
	considerably
	below75
	percent 	of 	the 	previous 	year.
	See 	page 	2, 	supra.
6
characteristics in common with the petitioned-for unit: each
unit contains teachers who perform substitute work as seldom as
one or two days a year, and, there is a substantial variation within
each unit as to the number of days worked. 	A separate unit of
substitutes could contain persons working as few as one or two
days or as much as 74 percent of the school year. The existing
unit could contain teachers on layoff performing substitute
work for as few as one or two days as well as regular teachers
working the total number of school days per year. 4
The presence of teachers working as few as one or two days
per year and the variation as to number-of-days-employment has
not given rise to a breakdown within the existing unit, nor has
it given rise to an objection that no community of interest
exists within a separate unit of substitutes. This leads the
Board to conclude that such objections are of little or no
significance in determining the appropriateness of the proposed
unit. 	The National Labor Relations Board (NLRB) reached the
same conclusion. In Fresno Auto Auction, Inc. (1967) 167 NLRB
878 [66 LRRM 1177] , the employer objected to the petitioned-for
4As noted above, the existing unit is defined as
containing temporaries employed for more than 75 percent of the
year and substitutes who worked over 75 percent of the previous
year . 	A separate unit of substitutes would contain teachers
working less than 75 percent of the previous year. 	The
existing unit also contains teachers on layoff performing
substitute or temporary work, even though the annual
number-of-days-employment may fall considerably below
75 percent of the previous year. See page 2, supra.
6

unit
	on
	the
	ground
	that
	some
	of 	the
	employees
	worked
	too
	few
days
	and 	had
	a
	relationship
	to
	the
	employment
	that
	was
	too
attenuated,
	or
	"casual", 	to
	be
	allowed
	therein.
	The
	NLRB
decided
	that 	variations
	among
	the
	employees
	(inter
	alia,
	the
number-of-days-employment),
	did 	not
	undermine
	the
	evidence
	of
	a
community
	of
	interest
	within 	the
	unit.5	
In
	its
	words:
[The]
	fact 	that
	they
	are
	carried
	on
	the
payroll
	as
	part-time
	workers 	does
	not,
	in
our 	view,
	alter
	the
	character 	of 	the
	work
force
	as
	a
	cohesive
	group
	of
	individuals
with
	a
	strong
	mutual
	interest
	in
	their
working
	conditions.
	Fresno
	Auto
	Auction,
Inc~,
	supra,
	at
	p. 	879.
This
	Board
	finds
	no
	indication 	that
	the 	teachers
1
	interest
and
	commitment
	to,
	or
	empathy
	with, 	the
	concerns
	of 	others
within 	the 	bargaining
	unit, 	is
	proportional 	to
	their
number-of-days-·employment. 	Moreover,
	to
	impose
	a
	threshhold
requirement 	for
	inclusion
	in 	the
	unit
	based
	on
51n
	Fresno
	Auto
	Auction,
	Inc.,
	supra,
	relatively	
few
employees
	1n
	the
	proposed
	unit
	were 	empioyed
	full
	time.
	A
large
	number
	were
	free 	to 	determine
	their
	own 	work
	schedule	
and
to 	report
	for
	work
	intermittently.
	The
	irregularly
	employed
persons
	were
	recruited 	generally
	by
	telephone
	from
	lists
	ofpersons	
who	
either
	previously
	worked
	for 	the
	employer
	or
	had
applied
	at
	the 	employer's
	office.
	Approximately
	one-third 	ofthe
	employees 	worked
	in
	less
	than 	three
	weekly 	pay
	periodspreceding 	the 	date 	of 	the 	hearing.
	A
majority
	appeared
	more
	or
less 	regularly
	over
	a
	period 	of 	several
	weeks
	or
	months.
	Many
employees 	held 	regular 	full-time
	jobs 	elswhere.
	Many
	were
housewives
	attracted
	by
	the 	opportunity 	to
	supplement
	their
family
	income.
7
unit on the ground that some of the employees worked too few
days and had a relationship to the employment that was too
attenuated, or "casual", to be allowed therein. 	The NLRB
decided that variations among the employees (inter alia, the
number-of-days-employment) , did not undermine the evidence of a
community of interest within the unit. 5 In its words:
[The] fact that they are carried on the
payroll as part-time workers does not, in
our view, alter the character of the work
force as a cohesive group of individuals
with a strong mutual interest in their
working conditions. Fresno Auto Auction,
Inc., supra, at p. 879.
This Board finds no indication that the teachers' interest
and commitment to, or empathy with, the concerns of others
within the bargaining unit, is proportional to their
number-of-days-employment. Moreover, to impose a threshhold
requirement for inclusion in the unit based on
5In Fresno Auto Auction, Inc., supra, relatively few
employees in the proposed unit were employed full time. A
large number were free to determine their own work schedule and
to report for work intermittently. The irregularly employed
persons were recruited generally by telephone from lists of
persons who either previously worked for the employer or had
applied at the employer's office. Approximately one-third of
the employees worked in less than three weekly pay periods
preceding the date of the hearing. A majority appeared more or
less regularly over a period of several weeks or months. Many
employees held regular full-time jobs elswhere. Many were
housewives attracted by the opportunity to supplement their
family income.
7

number-of-days-employment
	would 	be
	inevitably
	arbitrary.6
There
	is
	no
	rationale 	instructing
	where
	the
	line 	establishing
the
	minimum
	should
	be
	drawn.
	Accordingly,
	this
	Board
	does
	not
require,
	as
	a
	condition
	of
	unit
	membership,
	that
	a
	classroom
teacher
	work
	for
	a
	specified
	number
	of
	days.
The
	District
	also
	argues
	that
	the
	inclusion
	of
	substitutes
in 	the
	exisiting
	unit
	would
	impair
	the
	efficiency
	of
	operations
of 	the
	District.
	In
	response,
	it
	is
	important
	to
	recognize
that 	substitutes
	are
	not
	new
	to
	the
	collective
	bargaining
	in
the
	District.7	
Moreover,
	while
	it
	may
	be
	that 	additional
issues
	now
	will
	have
	to
	be
	addressed 	as
	part 	of 	collective
bargaining,
	such
	a
	burden
	cannot
	be
	avoided 	under
	the 	Act.
Substitutes
	and
	temporary
	teachers 	are
	"employees" 	under
	the
EERA
	(Palo
	Alto 	Unified
	School
	District/Jefferson
	Union 	High
School	
District
	(1/9/79)
	PERB
	Decision
	No
	84);
	it
	would
facilitate
	the
	negotiating 	process 	to 	address 	the
	interests
	of
these 	teachers
	in
	a
	combined
	rather
	than
	a
	separate
	unit.
6see
	Eugene
	School
	District
	v.
	Substitute
	Teachers
Org
ani
za
tTon-(I977
)-
Ct.	
of	
App.
	[
97---r:;R'RM-26
25] 	1n
	which
	the
Oregon
	State
	Court 	of
	Appeals 	upheld
	the
	State
	Employment
Relations 	Board's 	finding 	that
	a 	community
	of
	interest 	existeddespite 	there
	being
	a
	variation
	among
	unit
	members
	with
	regard
to
	their
	number-of-days-employment.
	The
	Court 	concluded
	that
it
	would 	be
	arbitrary
	to 	condition 	unit
	membership
employed 	a
	specific
	number
	of 	days 	each
	year.
7see 	footnote 	4, 	supra.
8
number-of-days-employment would be inevitably arbitrary. 6
There is no rationale instructing where the line establishing
the minimum should be drawn. Accordingly, this Board does not
require, as a condition of unit membership, that a classroom
teacher work for a specified number of days.
The District also argues that the inclusion of substitutes
in the exisiting unit would impair the efficiency of operations
of the District. In response, it is important to recognize
that substitutes are not new to the collective bargaining in
the District. Moreover, while it may be that additional
issues now will have to be addressed as part of collective
bargaining, such a burden cannot be avoided under the Act.
Substitutes and temporary teachers are "employees" under the
EERA (Palo Alto Unified School District/Jefferson Union High
School District (1/9/79) PERB Decision No 84) ; it would
facilitate the negotiating process to address the interests of
these teachers in a combined rather than a separate unit.
6See Eugene School District v. Substitute Teachers
Organization (1977) Ct. of App. [97 LRRM 2625] in which the
Oregon State Court of Appeals upheld the State Employment
Relations Board's finding that a community of interest existed
despite there being a variation among unit members with regard
to their number-of-days-employment. The Court concluded that
it would be arbitrary to condition unit membership upon being
employed a specific number of days each year.
7see footnote 4, supra.
8

The
	Board
	finds
	that
	the
	District
	has
	failed
	to
	rebut,
	by
	a
preponderance
	of 	evidence,
	the
	presumed
	appropriateness 	of
	the
requested
	unit.
	The
	Board,
	therefore,
	directs
	that
	the
	unit
	be
modified
	to 	include
	all
	substitutes
	in 	the
	existing 	unit.
ORDER
Upon
	the 	foregoing 	Decision
	and
	the 	record 	in
	this 	case,
the
	Public
	Employment
	Relations
	Board
	ORDERS
	that:
1.
	An
	appropriate 	unit
	for
	negotiation
	in 	the 	Dixie
Elementary 	School
	District 	shall
	include
	all
	full-time,
substitute
	and
	temporary
	classroom
	teachers.
2. 	Based
	on 	a
	finding
	that
	there
	has
	been
	a
	sufficient
showing
	of
	interest,
	the
	requisite
	number
	of
	authorization
cards
	being
	on
	file
	herein,
	the
	unitf
	as 	modified 	above,
	shall
be
	certified
	immediately.
By : John W. Jaeger, Member 	Irene Tovar , Member	By: '\'!.{rohn
	w:
	Jaeger,
	'}qemi}er	
Irene<:'.rovar, 	Member
Barbara
	D. 	Moore, 	Member
9
The Board finds that the District has failed to rebut, by a
preponderance of evidence, the presumed appropriateness of the
requested unit. The Board, therefore, directs that the unit be
modified to include all substitutes in the existing unit.
ORDER
Upon the foregoing Decision and the record in this case,
the Public Employment Relations Board ORDERS that:
1 . 	An appropriate unit for negotiation in the Dixie
Elementary School District shall include all full-time,
substitute and temporary classroom teachers.
2 . 	Based on a finding that there has been a sufficient
showing of interest, the requisite number of authorization
cards being on file herein, the unit, as modified above, shall
be certified immediately.
Barbara D. Moore, Member

STATE
	OF
	CALIFORNIAPUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
DIXIE
	ELEMENTARY 	SCHOOL
	DISTRICT,
Employer,
-and-
DIXIE
	TEACHERS
	ASSOCIATION,
	CTA/NEA
Employee
	Organization.
Case
	No. 	SF-UM-87
(R-
	36
2)
PROPOSED
	DECISION
(10/28/80)
Appearances:	
Diana
	K.
	Smith,
	Attorney
	(Breon,
	Galgani
	and
Godino)
	for 	the 	Dixie 	Elementary 	School
	District:
	Kirsten
	L.
Zerger, 	Attorney 	for 	the
	Dixie 	Teachers
	Association,
	CTA/NEA.
}
)
)
)
)
)
)
)
)
)
)
)
Proposed
	Decision
	by
	Jerilyn
	A.
	Gelt.
PROCEDURAL
	HISTORY
On
	April
	1,
	1976
	the 	Dixie 	Teachers
	Association,
	CTA/NEA
(hereafter
	DTA)
	requested 	recognition
	as
	the 	exclusive
representative
	for
	a
	unit 	of
	all
	certificated
	employees
excluding
	management,
	supervisory
	and
	day-to-day
	substitutes
	in
the 	Dixie 	Elementary 	School
	District
	(hereafter
	District).
	On
or 	about
	September
	8,
	1976,
	the
	District
	granted 	recognition 	to
DTA
	as 	the 	exclusive 	representative 	of	
the	
certificated 	unit,
subject 	to
	an
	Educational	
Employment
	Relations	
Board
determination 	regarding 	the
	disposition 	of 	certain	
disputed
positions.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
DIXIE ELEMENTARY SCHOOL DISTRICT,
Employer , 	Case No. SF-UM-87
(R- 362)
-and-
DIXIE TEACHERS ASSOCIATION, CTA/NEA 	PROPOSED DECISION
(10/28/80)Employee Organization.
Appearances: Diana K. Smith, Attorney (Breon, Galgani and
Godino) for the Dixie Elementary School District; Kirsten L.
Zerger, Attorney for the Dixie Teachers Association, CTA/NEA.
Proposed Decision by Jerilyn A. Gelt.
PROCEDURAL HISTORY
On April 1, 1976 the Dixie Teachers Association, CTA/NEA
(hereafter DTA) requested recognition as the exclusive
representative for a unit of all certificated employees
excluding management, supervisory and day-to-day substitutes in
the Dixie Elementary School District (hereafter District) .
or about September 8, 1976, the District granted recognition to
DTA as the exclusive representative of the certificated unit,
subject to an Educational Employment Relations Board
determination regarding the disposition of certain disputed
positions.

On
	December
	16,
	1976,
	the
	parties
	entered
	into
	a
	unit
clarification
	agreement
	which
	excluded
	from
	the
	regular
certificated
	unit
	temporary
	employees
	employed
	for
	less
	than
	75
percent
	of 	the 	school 	year
	and
	substitutes
	except 	for 	those
serving
	75
	percent
	or
	more
	of 	the
	days
	school
	was
	in
	session
the 	preceding 	school
	year,
	excepting 	those 	temporaries
	and
substitutes
	who
	have 	re-employment
	rights
	under
	the 	Education
Code.
On
	April
	14,
	1977
	the
	Marin 	County
	Substitute
	Teachers'
Association
	(hereafter
	MCSTA)
	filed
	a
	request 	for
	recognition
for
	a
	separate 	unit
	of
	substitutes.
	This
	petition
	was
subsequently 	dismissed
	by
	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board) 	due
	to
	a
	lack 	of 	majority 	support.
On
	August 	26,
	1977 	a 	new
	request 	for 	recognition
	for
	a
	separate
unit
	of
	substitutes
	was
	filed
	with 	the
	District
	and
	PERB
	by
	the
MCSTA. 	On
	October
	13,
	1977
	the
	District 	filed
	a
	Denial
	of
Recognition
	and
	requested
	that
	PERB
	conduct
	a
	hearing
	on
	the
appropriateness
	of
	the
	unit.
The
	petition
	was
	held 	in
	abeyance
	by 	an
	agreement
	of 	the
parties
	on 	December
	15,
	1977
	pending
	the
	outcome
	of 	other
substitute 	cases.
	On
	February 	2, 	1979, 	subsequent 	to 	the
issuance 	of 	Palo 	Alto 	Unified 	School
	District/Jefferson
	Union
High 	School
	District
	(1/9/79)
	PERB
	Decision
	No. 	84, 	and 	new
unit 	modification 	regulations,
	a
	PERB
	representative 	held
	an
2
On December 16, 1976, the parties entered into a unit
clarification agreement which excluded from the regular
certificated unit temporary employees employed for less than 75
percent of the school year and substitutes except for those
serving 75 percent or more of the days school was in session
the preceding school year, excepting those temporaries and
substitutes who have re-employment rights under the Education
Code .
On April 14, 1977 the Marin County Substitute Teachers'
Association (hereafter MCSTA) filed a request for recognition
for a separate unit of substitutes. This petition was
subsequently dismissed by the Public Employment Relations Board
(hereafter PERB or Board) due to a lack of majority support.
On August 26, 1977 a new request for recognition for a separate
unit of substitutes was filed with the District and PERB by the
MCSTA. On October 13, 1977 the District filed a Denial of
Recognition and requested that PERB conduct a hearing on the
appropriateness of the unit.
The petition was held in abeyance by an agreement of the
parties on December 15, 1977 pending the outcome of other
substitute cases. On February 2, 1979, subsequent to the
issuance of Palo Alto Unified School District/Jefferson Union
High School District (1/9/79) PERB Decision No. 84, and new
unit modification regulations, a PERB representative held an
2

informal 	conference 	with 	the 	parties 	to 	explore 	settlement
possibilities. 	No 	settlement 	was 	reached.
On 	June 	25, 	1979 	the 	MCSTA 	asked 	that 	the 	matter 	again 	be
held 	in 	abeyance 	in 	order 	that 	the 	DTA might 	seek 	a 	unit
modification 	to 	include 	the 	substitutes 	in 	the 	regular 	unit.
The 	MCSTA withdrew 	its 	request 	for 	recognition 	on 	August 	8,
1979 	"contingent 	upon 	and 	in 	support 	of" 	the 	unit 	modification
petition 	accompanied 	by 	proof 	of 	majority 	support 	filed 	the
following 	day 	by 	the 	DTA 	requesting 	the 	following:
The 	addition 	to 	the 	existing 	unit 	of 	all
substitute 	teachers 	in 	the"Dixie 	School
District 	employed 	to 	fill 	positions 	of
regularly 	employed 	persons 	absent 	from
service 	except 	those 	who 	serve 	75% 	or 	more
of 	the 	days 	school 	was 	in 	session 	during 	the
preceding 	year 	or 	who 	have 	re-employment
rights 	under 	the 	Education 	Code 	and 	have
worked 	for 	the 	District 	in 	such 	capacity 	for
at 	least 	two 	(2) 	days 	during 	any 	school 	year.
The 	District 	filed 	its 	response 	in 	opposition 	to 	the
petition 	on 	September 	14, 	1979.
On 	October 	25, 	1979 	an 	informal 	conference 	was 	held 	by 	the
PERB 	in 	an 	attempt 	to 	settle 	the 	unit 	dispute. 	At 	this 	meeting
and 	through 	a 	subsequent 	letter 	from 	the 	District 	received 	by
the 	PERB 	on 	November 	5, 	1979, 	the 	District 	indicated 	its
willingness 	to 	g:rant 	voluntary 	recognition 	to 	DTA 	in 	"a
separate 	unit 	composed 	of 	all 	substitute 	certificated 	employees
who 	work 	more 	than 	three 	days 	during 	the 	school 	year. 11
However, 	the 	District 	also 	stated 	that 	it 	was 	"not 	willing 	to
agree 	to 	joint 	negotiations 	with 	the 	regular 	certificated 	unit."
3
informal conference with the parties to explore settlement
possibilities. No settlement was reached.
On June 25, 1979 the MCSTA asked that the matter again be
held in abeyance in order that the DTA might seek a unit
mod ification to include the substitutes in the regular unit.
The MCSTA withdrew its request for recognition on August 8,
1979 "contingent upon and in support of" the unit modification
petition accompanied by proof of majority support filed the
following day by the DTA requesting the following:
The addition to the existing unit of all
substitute teachers in the Dixie School
District employed to fill positions of
regularly employed persons absent from
service except those who serve 758 or more
of the days school was in session during the
preceding year or who have re-employment
rights under the Education Code and have
worked for the District in such capacity for
at least two (2) days during any school year.
The District filed its response in opposition to the
petition on September 14, 1979.
On October 25, 1979 an informal conference was held by the
PERB in an attempt to settle the unit dispute. At this meeting
and through a subsequent letter from the District received by
the PERB on November 5, 1979, the District indicated its
willingness to grant voluntary recognition to DTA in "a
separate unit composed of all substitute certificated employees
who work more than three days during the school year."
However, the District also stated that it was "not willing to
agree to joint negotiations with the regular certificated unit."
W

On
	November
	10,
	1979
	a
	letter
	was
	received
	by
	the
	PERB
	in
which
	the
	DTA
	indicated
	that
	the
	District's
	offer
	was
unacceptable
	and
	requested
	that
	the
	PERB
	proceed 	with
	the
	unit
modification
	petition.
On
	November
	16,
	1979, 	the
	Regional
	Director
	sent
	a
	letter
to
	both
	parties
	in
	which 	he
	requested
	that
	they 	submit
	briefs
supporting
	their
	positions
	and,
	specifically,
	addressing
	the
difference
	between
	the
	situation
	at
	issue 	in
	Dixie
	School
District
	and
	the
	situation
	in
	Oakland
	Unified
	School
	District
(9/20/79),
	PERB
	Decision
	No.
	102.
	The 	DTA's
	brief
	was
	received
at
	the
	PERB
	office
	on 	November
	29,
	1979
	and
	the
	District's
brief
	was
	received
	on 	November
	30, 	1979.
The
	parties
	entered
	into
	a
	set
	of
	stipulations
	as
	to 	the
history
	of
	the 	case
	on
	February
	26, 	1980.
	On 	May
	23, 	1980,
subsequent
	to 	the 	scheduling 	of
	a
	formal
	hearing,
	DTA
	amended
its
	unit
	modification
	petition
	to
	specifically
	include 	those
temporary
	teachers
	not 	already 	included	
in	
the 	regular
certificated 	unit.
A
formal 	hearing
	was
	held
	on
	June
	4
	and
	6,
	1980
	before
Michael 	Tonsing,
	a
	hearing
	officer 	of 	the
	PERB.
	This
	matter
was
	reassigned	
for
	decision 	pursuant 	to 	California
Administrative	
Code,	
title
	8, 	section 	32168(b).
1	
Briefs	
were
filed	
by 	both
	parties
	with 	the
	PERB
	on 	August 	12, 	1980.
1
california 	Administrative	
Code,	
title
	8,
section
	32168(b)
	states:
A Board 	agent
	may 	be
	substituted 	for 	another
4
On November 10, 1979 a letter was received by the PERB in
which the DTA indicated that the District's offer was
unacceptable and requested that the PERB proceed with the unit
mod ification petition.
On November 16, 1979, the Regional Director sent a letter
to both parties in which he requested that they submit briefs
supporting their positions and, specifically, addressing the
difference between the situation at issue in Dixie School
District and the situation in Oakland Unified School District
(9/20/79), PERB Decision No. 102. The DTA's brief was received
at the PERB office on November 29, 1979 and the District's
brief was received on November 30, 1979.
The parties entered into a set of stipulations as to the
history of the case on February 26, 1980. On May 23, 1980,
subsequent to the scheduling of a formal hearing, DTA amended
its unit modification petition to specifically include those
temporary teachers not already included in the regular
certificated unit.
A formal hearing was held on June 4 and 6, 1980 before
Michael Tonsing, a hearing officer of the PERB. This matter
was reassigned for decision pursuant to California
Administrative Code, title 8, section 32168 (b) .! Briefs were
filed by both parties with the PERB on August 12, 1980.
California Administrative Code, title 8,
section 32168 (b) states:
A Board agent may be substituted for another

Board
	agent
	at
	any 	time	
during 	theproceeding
	at
	the
	discretion of	
the 	Chief
Administrative
	Law
	Judge 	in	
unfair 	practicecases 	or 	the 	Executive 	Director 	in
representation 	matters.
FINDINGS
	OF
	FACT
The
	Dixie
	Elementary 	School
	District
	has
	an
	enrollment
	of
approximately
	2,252
	students 	in	
4	
elementary
	and	
2	
intermediate
schools.
The
	District
	employs
	approximately
	125
	regular
	certificated
personnel
	and
	maintains
	an
	active
	substitute
	list
	numbering
close
	to
	80,
	8
	of
	whom
	are
	laid-off
	teachers
	with
	re-employment
rights
	under
	the 	Education
	Code.
	This
	substitute
	list
	is
gleaned
	from 	a
	larger
	list
	maintained
	by
	the
	Marin 	County
Office 	of 	Education.
	No
	one
	is
	hired
	by
	the
	District
	as
	a
substitute
	unless
	they
	have
	first
	registered
	with 	the
	County.
All
	substitute
	and
	temporary 	employees 	must
	hold
	a
	valid
California
	teaching
	credential.
	There
	is
	no
	subsequent
interview of
	the
	substitute 	at
	the
	District 	level.
	Over
	the
past
	13
	years,
	a
	core
	group
	of
	8-10
	substitutes
	has 	emerged,
upon
	whom
Ms.
	Elizabeth 	Ireland,	
the	
clerk
	who
	has 	been
	in
charge 	of
	calling 	substitutes
	for
	that 	entire
	period,
	relies.
The
	substitutes
	in
	this
	group 	have
	substituted
	in 	the
	District
for
	3
	to
	6
	years,
	and 	3
	or
	4
	of
	them
	have 	subbed
	there
	at 	least
13
	years.
	There
	is
	another 	group
	of	
15-20	
substitutes	
beyond
5
FINDINGS OF FACT
The Dixie Elementary School District has an enrollment of
approximately 2, 252 students in 4 elementary and 2 intermediate
schools.
The District employs approximately 125 regular certificated
personnel and maintains an active substitute list numbering
close to 80, 8 of whom are laid-off teachers with re-employment
rights under the Education Code. This substitute list is
gleaned from a larger list maintained by the Marin County
Office of Education. No one is hired by the District as a
substitute unless they have first registered with the County.
All substitute and temporary employees must hold a valid
California teaching credential. There is no subsequent
interview of the substitute at the District level. Over the
past 13 years, a core group of 8-10 substitutes has emerged,
upon whom Ms. Elizabeth Ireland, the clerk who has been in
charge of calling substitutes for that entire period, relies.
The substitutes in this group have substituted in the District
for 3 to 6 years, and 3 or 4 of them have subbed there at least
13 years. 	There is another group of 15-20 substitutes beyond
Board agent at any time during the
proceeding at the discretion of the Chief
Administrative Law Judge in unfair practice
cases or the Executive Director in
representation matters.
un

that
	core
	who
	consistently
	remain 	on
	the
	list
	from
	one
	year
	to
th€
	next.
	They
	differ
	from
	the 	core
	group
	in
	that
	they
	may
	not
remain
	on
	the
	list
	over
	several
	years 	or
	may
	not
	be
	as
	readily
available
	as
	those 	in
	the 	core
	group.
When
	filling
	a
	request 	for
	a
	substitute,
	Ms.
	Ireland
	first
goes
	to
	the
	list
	of	
8	
laid-off
	teachers,
	then
	to
	the 	core
	group
of 	8-10,
	then 	to 	the
	remaining
	substitutes
	on
	her
	active
	list,
next 	to 	the
	group
	of
	15-20
	who
	have 	had
	some
	continuous
experience
	with 	the
	District,
	and,
	as
	a
	last
	resort,
	to 	the
county
	list.
	Occasionally,
	she
	will
	also 	refer
	to 	the
	county
list
	if
	a
	teacher 	with
	a
	specific 	specialty
	is
	needed.
	If
	an
absent 	teacher 	requests
	a
	certain 	substitute
	as
	his/her
replacement,
	that
	request
	will
	be
	honored,
	if
	possible.
Day-to-day
	substitutes
	are 	paid
	$42.50
	per 	day. 	Long-term
substitutes
	(those
	who 	work 	21
	days
	or
	more
	on 	one
	assignment)
are 	placed
	on
	the 	regular
	certificated
	salary
	schedule
	on
	the
21st	
day	
of
	substitution
	or
	at
	the
	outset 	of 	the 	assignment
	if
it
	is
	known
	at 	that
	time
	that
	it
	will
	be
	for
	a
	duration 	of
	21
days 	or
	more.
Day-to-day
	and
	long 	term
	substitutes
	receive
	no
	sick 	leave
or 	health
	and	
welfare
	benefits.
	Separate 	personnel	
files
	are
not 	maintained	
for 	each
	individual	
substitute,	
although 	one
general
	file 	is
	maintained 	for 	information 	pertaining 	to
	all
substitutes.
6
that core who consistently remain on the list from one year to
the next. They differ from the core group in that they may not
remain on the list over several years or may not be as readily
available as those in the core group.
When filling a request for a substitute, Ms. Ireland first
goes to the list of 8 laid-off teachers, then to the core group
of 8-10, then to the remaining substitutes on her active list,
next to the group of 15-20 who have had some continuous
experience with the District, and, as a last resort, to the
county list. 	Occasionally, she will also refer to the county
list if a teacher with a specific specialty is needed. If an
absent teacher requests a certain substitute as his/her
replacement, that request will be honored, if possible.
Day-to-day substitutes are paid $42.50 per day. Long-term
substitutes (those who work 21 days or more on one assignment)
are placed on the regular certificated salary schedule on the
21st day of substitution or at the outset of the assignment if
it is known at that time that it will be for a duration of 21
days or more.
Day-to-day and long term substitutes receive no sick leave
or health and welfare benefits. Separate personnel files are
not maintained for each individual substitute, although one
general file is maintained for information pertaining to all
substitutes.
6

Day-to
	day
	and
	long-term
	substitutes
	are 	evaluated
infor-mally,
	usually
	by
	the 	observation 	of
	a
	principal
	or
assistant 	principal.
	If
	a
	substitute
	is
	given
	a
	negative
evaluation,
	that
	information
	is
	forwarded
	either 	orally
	or
	by
memo
	to
	Ms.
	Ireland.
	She
	will
	then
	attempt
	to 	successfully
place
	the
	substitute
	in 	another 	school.
	The
	substitute
	is
usually
	not
	removed 	from
	the
	active
	list
	until
	three
	or
	four
negative 	evaluations 	are 	received
	pertaining 	to
	him/her.
Substitutes
	perform
	basically
	the
	same
	functions 	in 	the
classroom 	as
	the 	teacher
	they
	replace.
	They
	carry 	out 	lesson
plans,
	administer
	tests,
	prepare
	bulletin
	boards, 	evaluate
students,
	participate
	in
	disciplinary
	conferences
	with
	children
and
	parents,
	accompany
	students
	on
	field
	trips,
	and
	supervise
instructional
	aides
	and
	parent 	volunteers.
	Although
	they
	are
not
	required 	to
	do
	so, 	they
	often 	attend
	open
	house,
participate
	in 	curriculum planning
	and
	attend 	faculty
meetings.
	Phone
	contact
	is 	often
	made 	on 	a
	daily 	basis
	between
the
	substitute
	and
	the 	teacher 	he/she
	is
	replacing.
Temporary 	employees
	are 	hired 	to 	replace
	an
	absent 	teacher
who
	is
	on 	an 	unpaid
	leave.
	Temporaries
	are
	under
	contract
	with
the
	District	
and	
are 	hired
	after
	a
	screening 	process	
and
interview.
	If	
the
	temporary 	has	
worked
	as
	a
	substitute	
in 	the
District
	before,
	however,
	the 	interview
may 	be 	waived.
Laid-off 	teachers 	with 	re-employment	
rights 	receive priority
for	
temporary
	positions.	
Temporaries 	are 	paid 	on
	the 	regular
7
Day-to day and long-term substitutes are evaluated
informally, usually by the observation of a principal or
assistant principal. If a substitute is given a negative
evaluation, that information is forwarded either orally or by
memo to Ms. Ireland. She will then attempt to successfully
place the substitute in another school. 	The substitute is
usually not removed from the active list until three or four
negative evaluations are received pertaining to him/her.
Substitutes perform basically the same functions in the
classroom as the teacher they replace. They carry out lesson
plans, administer tests, prepare bulletin boards, evaluate
students, participate in disciplinary conferences with children
and parents, accompany students on field trips, and supervise
instructional aides and parent volunteers. Although they are
not required to do so, they often attend open house,
participate in curriculum planning and attend faculty
meetings. Phone contact is often made on a daily basis between
the substitute and the teacher he/she is replacing.
Temporary employees are hired to replace an absent teacher
who is on an unpaid leave. Temporaries are under contract with
the District and are hired after a screening process and
interview. If the temporary has worked as a substitute in the
District before, however, the interview may be waived.
Laid-off teachers with re-employment rights receive priority
for temporary positions. Temporaries are paid on the regular
7

certificated
	salary
	schedule.
	They
	receive 	the
	same
	health
	and
welfare
	benefits
	and
	sick
	leave
	(on 	a
	pro
	rata
	basis)
	as
regular
	certificated
	personnel.
	Temporaries
	are 	evaluated 	in
the
	same
	manner
	as
	substitutes,
	although
	dismissal 	of
	a
temporary
	requires
	a
	written 	evaluation 	since
	he/she
	is
	under
contract.
	Separate 	personnel
	files
	are
	kept
	for
	each
	temporary.
Temporaries 	perform
	all
	of 	the 	functions 	of 	the
	regular
classroom
	teachers
	they
	replace.
ISSUES
Should
	all
	substitute
	and
	temporary
	teachers
	be 	added
	to
the 	regular
	certificated
	unit?
DISCUSSION
The
	question 	of 	the
	employee
	status 	of 	substitutes
	has
already
	been
	dealt
	with 	in 	previous
	PERB
	decisions
2	
and 	was
not
	raised
	as
	an
	issue 	in
	this
	case.
	In
	fact,
	temporary 	and
substitute
	teachers
	who 	work 	more
	than
	75
	percent 	of 	the 	school
year 	and/or
	are
	laid-off	
teachers 	with
	re-employment
	rights
	are
already 	included 	in 	the 	regular
	certificated
	bargaining
	unit.
Rather, 	the 	issue
	is
	whether 	or 	not
	it
	is
	appropriate 	to
	add
all	
substitutes
	and
	temporaries 	to 	the 	regular
	certificated
unit
	in	
light 	of
	the 	standards	
set 	forth	
in	
Government 	Code
section 	3545(a):
2	
Palo 	Alto 	Unified 	School
	District/Jefferson	
Union 	High
School
	District
	(1/9/79)
	PERB
	Decision
	No.
	84, 	supra
	and
Oakland
	Unif'ed 	School	
District	
(9/20/79)	
PERB
	Decision
	No.
	102.
8
certificated salary schedule. They receive the same health and
welfare benefits and sick leave (on a pro rata basis) as
regular certificated personnel. Temporaries are evaluated in
the same manner as substitutes, although dismissal of a
temporary requires a written evaluation since he/she is under
contract. 	Separate personnel files are kept for each temporary.
Temporaries perform all of the functions of the regular
classroom teachers they replace.
ISSUES
Should all substitute and temporary teachers be added to
the regular certificated unit?
DISCUSSION
The question of the employee status of substitutes has
already been dealt with in previous PERB decisions and was
not raised as an issue in this case. In fact, temporary and
substitute teachers who work more than 75 percent of the school
year and/or are laid-off teachers with re-employment rights are
already included in the regular certificated bargaining unit.
Rather, the issue is whether or not it is appropriate to add
all substitutes and temporaries to the regular certificated
unit in light of the standards set forth in Government Code
section 3545 (a) :
2 Palo Alto Unified School District/Jefferson Union High
School District (1/9/79) PERB Decision No. 84, supra and
Oakland Unified School District (9/20/79) PERB Decision No. 102.
CO

In
	each
	case
	where
	the
	appropriateness 	ofthe
	unit
	is
	an
	issue,
	the
	board
	shall
	decidethe
	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
	suchemployees
	belong
	to
	the
	same
	employee
organization,
	and
	the
	effect
	of 	the
	size
	ofthe
	unit
	on
	the
	efficient
	operation 	of
	the
school
	district.
The
	Board,
	in
	Peralta
	Community
	College
	District
	(11/17/78)
PERB
	Decision
	No.
	77,
	interpreted
	the
	legislative
	intent 	of
section
	3545
	to
	mean
	that
	it
	would
	"minimize
	the
	dispersion
	of
school
	district
	faculty 	into
	unnecessary
	negotiating
	units."
Furthermore,
	in 	order 	to
	reduce
	the
	possibilities
	that
"critical
	negotiation-related differences
	between
	groups
	of
teachers
	might
	compel
	unit 	separation,"
	the
	Board
	felt
	directed
by
	the
	Legislature 	"to
	combine
	all
	classroom
	teachers
	into
	a
single 	unit
	except
	where 	an
	issue
	of 	appropriateness
	is
	raised
and
	the 	requirements
	of 	subsection
	(a),
	which
	are
	then
	invalid,
leave 	the
	Board
	with
	no
	other 	option."
	The 	Board 	went 	on
	to
place 	the
	burden
	of
	proving 	the
	inappropriateness 	of
	a
comprehensive
	unit
	on
	those 	opposing
	it,
	in
	this
	case 	the 	Dixie
Elementary School
	District.
The
	District
	argues
	that
	temporaries
	and
	substitutes
	do
	not
share
	a
	sufficient
	community
	of
	interest
	with 	the 	regular
teachers 	to 	warrant
	their 	inclusion 	in 	the
	same
	unit.
Day-to-day
	substitutes
	and
	long-term
	substitutes 	are 	paid
	on
different	
pay	
scales
	from	
regular	
certificated
	personnel,	
and
receive
	no
	fringe 	benefits. 	Further, 	the
	District 	argues,
9
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.
The Board, in Peralta Community College District (11/17/78)
PERB Decision No. 77, interpreted the legislative intent of
section 3545 to mean that it would "minimize the dispersion of
school district faculty into unnecessary negotiating units."
Furthermore, in order to reduce the possibilities that
"critical negotiation-related differences between groups of
teachers might compel unit separation, " the Board felt directed
by the Legislature "to combine all classroom teachers into a
single unit except where an issue of appropriateness is raised
and the requirements of subsection (a) , which are then invalid,
leave the Board with no other option. " The Board went on to
place the burden of proving the inappropriateness of a
comprehensive unit on those opposing it, in this case the Dixie
Elementary School District.
The District argues that temporaries and substitutes do not
share a sufficient community of interest with the regular
teachers to warrant their inclusion in the same unit.
Day-to-day substitutes and long-term substitutes are paid on
different pay scales from regular certificated personnel, and
receive no fringe benefits. Further, the District argues,

their 	scope 	of 	responsibility 	is 	more 	limited 	than 	that 	of 	a
regular 	teacher 	who 	is 	responsible 	for 	the 	student's 	progress
during 	the 	entire 	school 	year. 	However, 	testimony 	indicated
that 	subs 	and 	regular 	teachers 	do, 	in 	fact, 	regularly 	consult
each 	other 	regarding 	students, 	work 	closely 	together, 	share 	the
same 	work 	locations 	and 	perform 	basically 	the 	same 	job
functions. 	The 	substitute's 	primary 	responsibility 	is 	to 	carry
forth 	with 	the 	plans 	and 	goals 	of 	the 	teacher 	she 	is
replacing. 	There 	is 	a 	great 	deal 	of 	contact 	between 	the 	two
groups 	on 	a 	day-to-day 	basis 	as 	well 	as 	through 	involvement 	in
long-range 	planning 	and 	projects.
Expectancy 	of 	continued 	employment 	is 	another 	criteria
which 	the 	District 	argues 	that 	the 	substitutes 	fail 	to 	meet.
In 	this 	District, 	however, 	such 	is 	not 	the 	case. 	The 	8-10
substitutes 	in 	the 	"core" 	group 	have, 	for 	the 	most 	part,
substituted 	in 	the 	District 	for 	over 	3 	years, 	and, 	in 	several
cases, 	for 	as 	many 	as 	13 	years. 	One 	substitute, 	who 	was
subsequently 	hired 	as 	a 	temporary, 	worked 	as 	a 	substitute 	in
the 	District 	for 	16 	years. 	An 	additional 	group of 	15-20
consistently 	carry 	over 	from 	one 	year 	to 	the 	next. 	While 	one
cannot 	deny 	that 	substitutes 	do 	not 	have 	the 	expectancy 	of
employment 	afforded 	those 	personnel 	under 	contract, 	it 	appears
evident 	that 	the 	District 	repeatedly 	employs 	substitutes 	as 	an
integral 	part 	of 	its 	work 	force 	and 	that 	those 	substitutes 	it
10
their scope of responsibility is more limited than that of a
regular teacher who is responsible for the student's progress
during the entire school year. However, testimony indicated
that subs and regular teachers do, in fact, regularly consult
each other regarding students, work closely together, share the
same work locations and perform basically the same job
functions. The substitute's primary responsibility is to carry
forth with the plans and goals of the teacher she is
replacing. There is a great deal of contact between the two
groups on a day-to-day basis as well as through involvement in
long-range planning and projects.
Expectancy of continued employment is another criteria
which the District argues that the substitutes fail to meet.
In this District, however, such is not the case. 	The 8-10
substitutes in the "core" group have, for the most part,
substituted in the District for over 3 years, and, in several
cases, for as many as 13 years. One substitute, who was
subsequently hired as a temporary, worked as a substitute in
the District for 16 years. An additional group of 15-20
consistently carry over from one year to the next. 	While one
cannot deny that substitutes do not have the expectancy of
employment afforded those personnel under contract, it appears
evident that the District repeatedly employs substitutes as an
integral part of its work force and that those substitutes it
10

does
	employ
	constitute
	a
	loyal
	group
	who
	return 	to
	the
	District
year
	after
	year.
The
	District
	argues
	that
	the
	conflict
	of
	interest
	between
substitutes
	and
	regular 	teachers
	is
	such
	that
	it
	would
	cause
unresolvable 	discord 	within 	the
	unit.
	No
	evidence
	was
	offered
to 	support
	such
	speculation
	beyond
	the
	fact 	that
	a
	teacher
	who
has
	exhausted
	his/her
	sick
	leave 	receives
	the
	difference
between
	his/her
	salary
	and
	the
	substitute's
	daily
	rate.
That
	granting
	the
	petition
	would
	impair
	the
	efficiency 	of
operations
	of
	the
	District
	by
	complicating
	an
	already
	long
	and
difficult
	bargaining
	relationship
	was
	another
	argument
proffered 	against
	the
	proposed
	unit 	modification.
	However,
	the
current 	contract
	already 	includes
	some
	temporaries
	and
substitutes.
	Further,
	proposals
	were 	made 	by
	DTA
	covering
substitutes
	during
	recent 	negotiations,
	although 	not 	included
in
	the
	final
	agreement
	which
	expires
	in
	June
	of
	1981. 	While
granting 	the
	petition
	would 	add
	another 	area 	to	
the 	scope	
of
negotiations,
	it
	would
	not
	sufficiently
	impair 	the
	efficiency
of 	operations 	of 	the
	District
	to 	warrant
	denying
	substitutes
bargaining
	rights.
Given
	the 	history
	regarding
	substitutes	
in	
the
	District,
denying 	the
	petition
	would	
leave	
them	
without 	representation 	in
a
	District
	which
	has 	already 	denied
	them 	a
	separate 	unit.
	As
was	
the 	case 	in
	Oakland, 	"the	
District
	seems
	to 	object 	to	
any
action 	granting 	collective 	negotiating 	rights 	to	
subs	
rather
11
does employ constitute a loyal group who return to the District
year after year.
The District argues that the conflict of interest between
substitutes and regular teachers is such that it would cause
unresolvable discord within the unit. No evidence was offered
to support such speculation beyond the fact that a teacher who
has exhausted his/her sick leave receives the difference
between his/her salary and the substitute's daily rate.
That granting the petition would impair the efficiency of
operations of the District by complicating an already long and
difficult bargaining relationship was another argument
proffered against the proposed unit modification. However, the
current contract already includes some temporaries and
substitutes. Further, proposals were made by DTA covering
substitutes during recent negotiations, although not included
in the final agreement which expires in June of 1981. While
granting the petition would add another area to the scope of
negotiations, it would not sufficiently impair the efficiency
of operations of the District to warrant denying substitutes
bargaining rights.
Given the history regarding substitutes in the District,
denying the petition would leave them without representation in
a District which has already denied them a separate unit. As
was the case in Oakland, "the District seems to object to any
action granting collective negotiating rights to subs rather
11

than 	offering 	factually 	supported 	evidence 	of 	proliferated
units" 	or 	of 	the 	impairment 	to 	its 	efficiency 	of 	operations 	by
one 	overall 	unit.
The 	District 	has 	failed 	to 	present 	sufficient 	evidence 	to
warrant 	excluding 	substitute 	and 	temporary 	teachers 	from 	the
regular 	certificated 	unit. 	Furthermore, 	no 	evidence 	was
presented 	to 	rebut 	the 	threshold 	minimum of 	two 	days 	employment
proposed 	in 	the 	unit 	modification 	petition.
PROPOSED ORDER
It 	is 	the 	Proposed 	Order 	that 	the 	unit 	modification
petition 	filed 	by 	the 	Dixie 	Teachers 	Association, 	CTA/NEA 	in
the 	Dixie 	Elementary 	School 	District 	be 	granted.
The 	modified 	unit 	description 	shall 	include 	all 	substitute
and 	temporary 	teachers 	in 	the 	Dixie 	Elementary 	School 	District
employed 	for 	at 	least 	two 	days 	in 	any 	school 	year.
Pursuant 	to 	California 	Administrative 	Code, 	title 	8, 	part
III, 	section 	32305, 	this 	sed 	Decision 	and 	Order 	shall
become 	final 	on 	November 	1 7
.L I ' 	1980 	unless 	a 	party 	files 	a
timely 	statement of 	exceptions 	within 	twenty 	(20) 	calendar 	days
following 	the 	date 	of 	service 	of 	the 	decision. 	Such 	statement
of 	exceptions 	and 	supporting 	brief 	must 	be 	actually 	received 	by
the 	executive 	assistant 	to 	the 	Board 	at uarte headquarters 	office
Sacramento before the	Sacramento 	before 	close 	of 	business 	(5:00 	p.m.) 	on
November 	17, 	1980 	in 	order 	to 	be 	timely 	filed. 	(See
California Administrative 	Code, 	title 	8, 	part 	III,
12
than offering factually supported evidence of proliferated
units" or of the impairment to its efficiency of operations by
one overall unit.
The District has failed to present sufficient evidence to
warrant excluding substitute and temporary teachers from the
regular certificated unit. Furthermore, no evidence was
presented to rebut the threshold minimum of two days employment
proposed in the unit modification petition.
PROPOSED ORDER
It is the Proposed Order that the unit modification
petition filed by the Dixie Teachers Association, CTA/NEA in
the Dixie Elementary School District be granted.
The modified unit description shall include all substitute
and temporary teachers in the Dixie Elementary School District
employed for at least two days in any school year.
Pursuant to California Administrative Code, title 8, part
III, section 32305, this Proposed Decision and Order shall
become final on November 17, 1980 unless a party files a
timely statement of exceptions within twenty (20) calendar days
following the date of service of the decision. Such statement
of exceptions and supporting brief must be actually received by
the executive assistant to the Board at the headq 	rs office
in 	close of business (5:00 p.m. ) on
November 17, 1980 	order to be timely filed. (See
California Administrative Code, title 8, part III,
12

section
	32135.)
	Any
	statement
	of
	exceptions
	and
	supporting
brief
	must 	be
	served
	concurrently
	with
	its
	filing
	upon
	each
party
	to
	this
	proceeding.
	Proof
	of 	service
	shall
	be
	filed
	with
the
	Board
	itself.
	(See
	Administrative
	Code,
	title
	8,
	part
	III,
sections
	32300 	and
	32305,
	as
	amended.)
DATED:	
October
	28,
	1980
FOR
	THE
	REGIONAL
	DIRECTOR
13
By
Jeril
vt/cel
t 	U
Hearih'g
Officer
section 32135.) Any statement of exceptions and supporting
brief must be served concurrently with its filing upon each
party to this proceeding. Proof of service shall be filed with
the Board itself. (See Administrative Code, title 8, part III,
sections 32300 and 32305, as amended. )
DATED : 	October 28 , 1980
FOR THE REGIONAL DIRECTOR
By
Jerilyn Gelt U
Hearing Officer
13