Fairfield-Suisun Unified School District (PERB 0370E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FAIRFIELD-SUISUN UNIFIED SCHOOL DISTRICT,
Employer,
and
FAIRFIELD-SUISUN UNIFIED TEACHERS
ASSOCIATION, CTA/NEA,
Employee 	Organization.
Case No. 	SF-UM-262
(SF-R-46A)
PERB Decision No. 	370
December 	27 	1983
Appearances: 	Gregory J. 	Dannis, Attorney 	(Breon, 	Galgani, Godino
& 	O'Donnell) 	for 	Fairfield-Suisun Unified 	School 	District;
Priscilla Winslow, 	Attorney 	for 	Fairfield-Suisun 	Unified 	Teachers
Association, CTA/NEA.
Before Tovar, 	Jaeger and Morgenstern, 	Members.
DECISION
MORGENSTERN, 	Member: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on an appeal 	filed 	by 	the
Fairfield-Suisun 	Unified School District 	(District). 	The
District 	disputes 	the decision 	of 	the 	Board Agent which 	granted
the petition 	filed 	by 	the 	Fairfield-Suisun 	Unified 	Teachers
Association, 	CTA/NEA, 	to modify the established unit of
certificated 	employees 	to 	include 	the 	District's 	hourly adult
education 	teachers.
We 	have 	reviewed 	the 	attached 	administrative 	determination
of 	the 	Board Agent 	in 	light of 	the 	District's 	appeal 	and 	the
entire 	record 	in 	this matter. 	Finding 	it 	to be 	free 	from
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prejudicial error, 	we adopt 	it as 	the decision of 	the Board
itself.
ORDER
Based upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and the entire 	record 	in this matter, 	it 	is hereby ORDERED
that 	the 	unit modification petition 	filed 	by 	the 	Fairfield-
Suisun Unified Teachers Association, 	CTA/NEA, 	is GRANTED,
thereby adding 	the hourly 	adult 	education 	teachers 	to 	the
established 	certificated 	unit.
Members 	Tovar 	and Jaeger 	joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FAIRFIELD-SUISUN 	UNIFIED 	SCHOOL
DISTRICT,
Employer,
and
FAIRFIELD-SUISUN 	UNIFIED 	TEACHERS
ASSOCIATION/C TA/NEA,
Exclusive 	Representative.
Case Nos. 	SF-UM-262
SF-R-46A
Administrative
Determination
(5/4/83)
PROCEDURAL 	HISTORY
The 	Fairfield-Suisun 	Unified 	Teachers 	Association/CTA/NEA
(Association) 	was 	recognized 	as 	the 	exclusive 	representative 	of
the 	established 	certificated 	unit 	in 	the 	Fairfield-Suisun
Unified 	School District 	(District) 	on August 	10, 	1977 1 On
July 	21, 	1982, 	the Association 	filed a unit modification
petition 	with 	the 	Public 	Employment 	Relations 	Board 	(PERB or
Board) 	to 	add 	to 	the 	unit all 	certificated 	employees 	paid 	on 	an
hourly basis, 	i.e., 	hourly adult 	education 	teachers.
On August 	18, 	1982, 	the District 	filed an opposition 	to 	the
unit modification petition, 	arguing 	that 	the 	employees 	in
question 	do 	not 	share 	a 	community 	of 	interest 	with 	regular
1The 	established 	unit 	includes 	all 	certificated 	employees
excluding 	designated 	management 	employees, 	temporary 	employees,
school psychologists, per 	diem substitute employees, 	summer
school 	teachers, 	and 	employees 	paid on an hourly basis.
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teachers, 	that 	they are 	not 	eligible 	for 	tenure 	under 	the
Education 	Code,2 and 	that 	prior 	PERB precedent 	dictates
exclusion of 	adult 	education 	teachers 	from 	the 	unit.
An 	investigation was 	held on November 	4, 	1982, 	at which
time 	the 	parties 	submitted 	joint 	exhibits 	and, 	subsequently,
entered 	into 	stipulations 	of 	fact 	which 	form 	the 	record 	in 	this
case.
The 	issue 	to be decided 	herein 	is 	whether 	or 	not 	the
addition 	of 	hourly 	adult 	education 	teachers 	to 	the 	established
certificated 	unit 	is 	appropriate.3
DISCUSSION
PERB Regulation 	32781(a)(1) 	provides 	that 	a 	recognized 	or
certified 	employee 	organization may 	file 	with 	the 	regional
office 	a petition 	for 	unit 	modification:
(1) 	To add 	to 	the 	unit 	unrepresented
classifications 	or 	positions 	which 	existed
prior 	to 	the 	recognition 	or 	certification 	of
the 	current 	exclusive 	representative 	of 	the
unit.
Government 	Code 	section 	3545(a) 	and 	(b) 	sets 	forth 	the
standards 	for 	determinations 	of 	an 	appropriate 	unit:
(a) 	In each 	case 	where 	the 	appropriateness
of 	the 	unit 	is 	an 	issue, 	the 	board 	shall
decide 	the 	question 	on 	the 	basis 	of 	the
2The 	issue 	of 	tenure 	was 	not 	raised 	by 	the 	District 	in 	the
stipulations 	nor 	in 	its 	brief 	and 	is 	thus 	not 	addressed 	herein.
3Full-time 	certificated 	adult 	education 	teachers 	were
added 	to 	the 	unit pursuant 	to 	an 	agreement 	entered 	into 	by 	the
parties on February 22, 	1978.
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community 	of 	interest 	between 	and 	among 	the
employees 	and 	their 	established 	practices
including, 	among other 	things, 	the extent 	to
which 	such 	employees 	belong 	to 	the 	same
employee organization, 	and 	the effect 	of 	the
size 	of 	the 	unit 	on 	the 	efficient 	operation
of 	the 	school district.
(b) 	In all cases:
(1) 	A negotiating 	unit 	that 	includes
classroom 	teachers 	shall 	not 	be 	appropriate
unless 	it 	at least 	includes all of 	the
classroom 	teachers 	employed 	by 	the 	public
school 	employer, 	except management
employees, 	supervisory employees, and
confidential 	employees.
COMMUNITY 	OF 	INTEREST
The 	Board 	has 	interpreted 	section 	3545 	as 	establishing 	a
rebuttable 	presumption 	that 	all 	classroom 	teachers 	should 	be
contained 	in a single unit, 	absent 	a showing of a 	lack of
community of 	interest 	between 	the 	groups. 	In Peralta Community
College District 	(11/17/78) 	PERB Decision No. 	77, 	the Board
held 	that:
Reading 	subsection 	3545(b) 	together 	with 	its
companion 	subsection 	(a) 	gives 	rise 	to 	the
presumption 	that 	all 	teachers 	are 	to 	be
placed 	in a 	single 	unit 	save 	where 	the
criteria of 	[subsection 	(a)] 	cannot 	be met.
In 	this way, 	the legislative preference, 	as
the Board 	perceives 	it, 	for 	the 	largest
possible viable 	unit 	of 	teachers 	can 	be
satisfied. 	Thus, 	we would place 	the 	burden
of 	proving 	the 	inappropriateness 	of 	a
comprehensive 	teachers' 	unit 	on 	those
opposing 	it. 	(Id., 	at p. 	10.)
Although 	early 	PERB 	decisions 	excluded 	adult 	education
teachers 	from certificated 	units, 	recent precedent 	has placed
similar 	groups of 	employees 	in 	the 	comprehensive 	teacher 	unit.
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In Dixie Elementary 	School District 	(8/11/81) 	PERB Decision
No. 	171, 	the 	Board 	held 	that 	substitute 	teachers 	perform
substantially 	the 	same 	kind 	of 	work 	as 	regular 	teachers 	and
should 	be 	included 	in 	the 	same 	bargaining 	unit.
In El Monte 	Union High 	School 	District 	(10/20/80) 	PERB
Decision No. 	142, 	the Board 	found 	that 	home 	teachers,
enrichment 	teachers 	and 	evening 	continuation 	teachers 	shared 	a
community 	of 	interest 	with 	regular 	teachers 	despite 	such
differences 	as work location, 	work 	hours, 	courses 	taught and
lack 	of 	evaluation 	procedures.
Similarly, 	in 	Redwood 	City 	Unified 	School 	District
(10/23/79) 	PERB Decision No. 	107, 	the Board 	found 	ample
evidence 	to 	include 	summer 	school 	teachers 	in 	the 	same 	unit
with 	regular 	teachers 	since, 	among 	other 	things, 	they 	both 	hold
credentials, 	prepare lesson plans, 	and 	instruct 	students, 	often
in 	similar 	academic 	subjects, 	in Rio Hondo 	Community College
District 	(1/25/79) 	PERB Decision No. 	87, 	the Board also
included 	summer 	session 	teachers 	in 	a 	unit 	of 	full-time 	and
part-time 	teachers, 	noting 	that 	the 	summer 	courses, 	like
regular 	year 	courses, 	are 	offered 	in 	both 	day 	and 	evening
sessions 	and 	are 	both 	available 	for 	credit.
Of 	the 	estimated 	64 	hourly 	adult 	education 	teachers 	in 	this
District, 	approximately 	20 	of 	them 	teach 	both 	in 	the 	adult
education 	teachers 	program and 	the 	K-12 	program. 	In 	addition
to 	the 	hourly 	teachers, 	there 	are 	16 	full-time 	adult 	education
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teachers 	in 	the District 	who 	are already members 	of 	the 	regular
certificated 	unit 	and 	are 	covered 	by 	the 	same 	contract 	as 	the
regular 	teachers.
Hourly adult 	education 	teachers, 	like 	contract 	adult
education 	teachers 	and 	regular 	teachers, 	must 	hold 	a 	valid
California 	teaching 	credential. 	Over 	50 	percent 	of 	the 	hourly
adult 	teachers 	in 	the District 	hold 	standard 	or 	general
credentials; 	the 	remainder 	hold adult 	education 	credentials.
Hourly 	adult 	education 	teachers 	perform 	the 	same 	kind 	of 	work
as 	contract 	adult 	education 	and 	regular 	teachers, 	teaching many
of 	the 	same 	courses 	including 	such 	traditional 	academic
subjects as government, history, geography, mathematics and
English. 	Hourly 	adult 	education 	teachers, 	like 	contract 	adult
education 	and 	regular 	teachers, 	prepare 	lesson plans, 	give
tests 	and 	grade 	students. 	Both 	hourly 	and 	contract 	adult
education 	teachers 	are 	to 	be 	evaluated 	periodically 	by 	the
adult 	school principal 	and/or 	his 	assistants.
Adult 	education 	classes 	may 	be 	cancelled 	if 	a 	specified
number 	of 	students do not 	attend. 	However, 	it 	is 	reasonable
for 	adult 	education 	teachers 	as 	a class 	to expect continued
employment 	since 	the 	District 	has 	consistently 	employed 	adult
education 	teachers 	as 	an 	integral part 	of 	its 	work 	force.
(Dixie Unified School District, 	supra at p. 	5 ) .
There are differences, 	as 	the District states, 	between
hourly 	adult 	education 	teachers 	and 	contract 	adult 	education
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teachers 	and 	regular 	teachers. 	Hourly 	adult 	education 	teachers
are 	paid 	on 	a 	different 	salary 	schedule 	and 	they 	do 	not 	receive
fringe 	benefits 	(although 	they 	do 	accrue 	sick 	leave). 	Contract
adult 	education 	teachers 	are 	required 	to 	attend 	meetings
relating 	to 	developing 	scholarships 	and 	other 	academic 	matters,
while 	attendance 	by 	hourly 	adult 	education 	teachers 	is
voluntary. 	Sites 	for 	adult 	education classes 	are 	in 	locations
other 	than 	K-12 	school 	sites, 	and 	the 	adult 	education program
is 	funded 	separately 	from 	the 	general 	fund 	and 	the 	monies
cannot 	be 	commingled. 	The 	differences 	in 	sites 	and 	funding,
however, 	also 	exist 	between 	contract 	adult 	education 	teachers
and 	regular 	teachers, 	who 	are 	already 	included 	in 	the 	same
unit. 	Furthermore, 	in light of 	the PERB precedent previously
discussed 	herein, 	these 	differences 	are 	not 	substantial enough
to 	establish 	a 	lack 	of 	community 	of 	interest 	between 	the 	hourly
adult 	education 	teachers 	and 	the 	current 	bargaining 	unit
members.
ESTABLISHED 	PRACTICES
As noted 	in Government 	Code 	section 	3545(a) 	above, 	in
addition 	to 	community of 	interest, 	the 	Board must 	also look 	to
established 	practices 	when 	making 	a determination 	of 	unit
appropriateness. 	Relevant 	established 	practices 	include
efficiency 	of 	operations 	and 	negotiating 	history.4
4Based 	on 	the 	stipulated 	facts 	of 	this 	case, 	no 	history
of 	collective 	negotiating 	exists 	for 	adult 	education 	hourly
employees.
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In 	Livermore 	valley 	Joint 	Unified 	School 	District 	(6/21/81)
PERB Decision No. 	165, 	the Board 	held 	that 	the 	efficiency of
operations 	criterion 	is 	a 	factor 	militating 	against
fragmentation of units, 	for 	the 	larger 	the 	number 	of units 	over
which 	a district 	is 	obliged 	to negotiate, 	the 	greater must 	be
its 	allocation of 	resources. 	The 	Board 	has 	also held 	that
there 	exists 	no more 	potential 	for 	disruption 	in 	negotiations
over 	a 	unit 	modified 	to 	include 	a category of 	teachers
(substitutes) 	than 	in negotiations 	covering 	two 	separate
units. 	Oakland 	Unified 	School District 	(9/20/79) 	PERB Decision
No. 102.
In 	the 	instant 	case, 	the 	District contends 	that 	the
proposed 	unit 	modification 	would 	have 	a 	deleterious 	effect 	on
timely 	settlements 	and 	therefore 	on 	its 	efficiency 	of
operations. 	However, 	such 	an argument 	is highly speculative.
Furthermore, 	logic dictates 	that 	the 	addition of hourly adult
education 	teachers 	to 	the 	established 	certificated 	unit 	would
reduce, 	rather 	than 	increase, 	the number 	of negotiation
sessions 	which would 	be 	required 	between 	the 	District 	and 	the
Association 	if 	two 	separate 	units 	existed.5
5The 	District 	contends 	that 	a 	separate 	unit 	of hourly
adult 	education 	teachers 	would 	be 	more 	efficient 	than 	the
proposed 	modification. 	However, 	there 	has 	been 	no petition
filed 	for 	such a 	unit. 	Therefore, 	the 	issue of 	a 	second 	unit
is 	not 	before 	the 	Board 	in 	this 	case.
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Considering 	the 	community 	of 	interest 	criteria 	between 	and
among 	hourly 	adult 	education 	teachers, 	contract 	adult 	education
teachers 	and 	regular 	teachers, 	and 	the 	efficient operation of
the 	District, 	it 	is 	concluded 	that 	the 	hourly adult education
teachers 	should 	be 	included 	in 	the 	established 	certificated
unit.
CONCLUSION
Based 	upon 	the 	foregoing 	and 	the 	entire 	record 	in 	this
matter, 	the 	unit 	modification 	petition 	filed 	by 	the
Fairfield-Suisun 	Unified 	Teachers 	Association/CTA/NEA 	is
granted, 	thereby 	adding 	hourly 	adult 	education 	teachers 	to 	the
established 	certificated 	unit 	represented 	by 	the 	Association.
An 	appeal of 	this 	decision pursuant 	to 	PERB Regulations
32350 	through 	3238 0 may 	be made 	within 	10 calendar 	days
following 	the 	date 	of 	service 	of 	this 	decision 	by 	filing 	an
original 	and 	5 	copies 	of 	a 	statement 	of 	the 	facts 	upon which
the 	appeal 	is 	based 	with 	the 	Board 	itself 	at 	1031 	18th 	Street,
Suite 	200, 	Sacramento, 	California 95814. 	Copies of any appeal
must 	be 	concurrently 	served 	upon 	all 	parties 	and 	the
San Francisco Regional Office. 	Proof 	of 	service 	pursuant 	to
Regulation 	32140 	is 	required.
DATED: 	May 4, 	1983 	Janet 	Caraway
Director 	of 	Representation
By:
Jerilyn 	Gelt
Board 	Agent
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