Santa Clara County Office of Education (PERB 0839E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SANTA CLARA COUNTY OFFICE 	OF
EDUCATION,
Employer,
and
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 715, 	AFL-CIO/CLC,
Exclusive Representative.
Case No. 	SF-UM-442
PERB Decision No. 	839
September 17, 	1990
Appearances: 	Littler, 	Mendelson, 	Fastiff & Tichy by Patricia P.
White and Deanna Mouser, 	Attorneys, 	for Santa Clara County Office
of Education; 	Van Bourg, 	Weinberg, 	Roger and Rosenfeld by
Vincent A. 	Harrington, 	Jr., Attorney, 	for Service Employees
International Union, 	Local 715, AFL-CIO/CLC.
Before Hesse, 	Chairperson; 	Craib and Cunningham, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the 	Santa
Clara County Office 	of 	Education 	(SCCOE) 	to 	the 	attached proposed
decision of a PERB Administrative Law Judge 	(ALJ). 	The ALJ
granted 	the 	unit 	modification petition 	filed by 	Service 	Employees
International Union, 	Local 715, AFL-CIO/CLC 	(Local 715), which
sought 	to 	add 	substitute 	bus 	drivers 	to 	an existing bargaining
unit 	containing 	full-time bus 	drivers.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the proposed decision, 	SCCOE's 	exceptions, 	and Local
715's 	response thereto and, 	finding the ALJ's 	findings 	of 	fact
and conclusions 	of 	law to be 	free of prejudicial 	error, 	adopts
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the proposed decision as 	the decision of 	the Board 	itself. 	Below
is 	a brief discussion of 	SCCOE's 	exceptions.
DISCUSSION
While 	SCCOE has 	filed numerous 	exceptions, 	its 	main argument
is 	that 	the two groups 	of bus drivers do not 	share 	a 	community of
interest, 	but instead have 	serious 	conflicts of 	interest which
make 	it 	inappropriate to place them in the 	same unit. 	The
conflicts 	involve 	sub-differential pay1 and 	contract provisions
which 	establish a minimum number of 	float drivers2 and 	reflect
SCCOE's 	intent to avoid using 	substitutes. 	A recent 	grievance
protesting 	the 	assignment 	of 	a 	substitute 	instead 	of 	a 	regular
driver willing to work on a holiday 	is 	offered as 	an example 	of
the 	conflicting 	interests.
SCCOE 	made the 	same arguments 	before the ALJ. 	We 	find 	that
he 	correctly analyzed and rejected those arguments; 	therefore, 	it
is 	unnecessary to reiterate that analysis 	here. 	We agree with
the ALJ 	that 	the 	existing differences 	between 	substitute 	and
regular drivers 	are 	insufficient 	to 	negate 	other 	factors
demonstrating 	a 	community of 	interest 	and that 	such differences
are 	amenable to resolution through the process 	of 	negotiations.
However, 	we believe the 	issue of 	sub-differential pay requires
one 	further 	comment.
1Sub-differential pay refers 	to 	the practice of paying
employees, 	when their sick leave is 	exhausted, 	the difference
between 	their regular pay and 	the 	rate 	received by 	the 	substitute
taking their place.
2Float drivers 	are guaranteed 	full-time employment, 	but do
not 	have 	regularly 	assigned routes.
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Though not noted by the ALJ, 	sub-differential pay 	is
mandated by Education Code 	section 45196.3 Moreover, 	as 	noted by
the 	Board with 	regard to 	a 	similar provision applying 	to
certificated 	employees,4 the 	Education Code 	merely provides 	a
minimum 	salary 	in 	such 	circumstances 	and 	the parties 	are 	free 	to
negotiate a different formula. 	Therefore, 	a pay raise 	for
substitutes 	does 	not 	necessarily require 	a 	lowering of 	sub-
differential pay 	for the 	regular drivers.
SCCOE 	also urges 	that 	the 	Board take 	guidance 	from three
cases 	from other jurisdictions which, 	it asserts, 	supports the
exclusion of 	substitute drivers. 	The ALJ 	simply noted the
3 Education Code 	section 45196 	states, 	in pertinent part:
When a person 	employed 	in the 	classified
service 	is 	absent 	from his duties 	on account
of 	illness 	or accident 	for a period of 	five
months 	or less, 	whether or not the absence
arises 	out of or 	in the 	course of 	employment
of the employee, 	the amount deducted 	from the
salary due 	him 	for any month 	in which 	the
absence occurs 	shall 	not 	exceed the 	sum which
is 	actually paid 	a 	substitute 	employee
employed 	to 	fill 	his 	position during his
absence.
Entitlement to 	sick 	leave provisions 	under
this 	section, 	if any, 	shall be considered
"entitlement to other 	sick leave" 	for the
purposes 	of 	computing benefits 	under the
provisions 	of 	Section 45192 	if 	the absence 	is
for 	industrial 	accident 	or 	illness 	and 	shall
be used after 	entitlement 	to 	all 	regular 	sick
leave, 	accumulated compensating time,
vacation or other 	available paid 	leave has
been 	exhausted.
4Palo Alto 	Unified School 	District 	(1983) 	PERB 	Decision
No. 	352, pp. 	10-11.
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existence 	of 	these 	cases 	and 	stated 	that 	they 	apparently differ
from PERB precedent. 	In fact, 	all three cases 	are 	inapposite
because 	the 	issue presented was 	whether 	substitutes 	were within
existing unit descriptions. 	None of 	these 	cases 	addressed the
appropriateness 	of placing 	substitutes 	in a unit 	consisting of
regular 	full-time bus drivers.
In Quick-Lahmann Express, 	Inc. 	(1982) 	262 NLRB 220 	[110 LRRM
1327], 	the National Labor Relations Board concluded that an on-
call 	extra 	roster driver who had worked a total 	of 	30 	hours 	over
his 	first 	four weeks 	of 	employment was 	not eligible to vote
because 	the 	stipulated 	bargaining 	unit 	description 	included 	only
full-time and regular part-time drivers, 	and expressly 	excluded
casual 	employees. 	In Patzwald v. 	PERB 	(1981) 	306 N.W.2d 	118 	[110
LRRM 3376], 	the Minnesota Supreme Court granted a 	joint petition
to 	clarify 	an 	existing unit 	to 	expressly 	exclude 	substitute 	bus
drivers. 	The 	court 	found that 	the 	original unit 	certification
was 	never 	intended by the parties 	to 	include 	substitutes. 	Though
the 	court 	found 	it unnecessary to decide the 	issue, 	there was
also 	a 	serious 	question of whether the 	substitute drivers 	fell
within the 	scope 	of 	the relevant 	collective bargaining 	law.5 In
Clay County School District 	(1986) 	12 FPER par. 	17279, 	the
Florida 	Public 	Employees 	Relations 	Commission 	excluded 	substitute
bus 	drivers 	in a unit clarification proceeding, 	finding that
5 The 	statute 	excludes 	from 	its 	coverage part-time 	employees
who work less 	than 	14 hours per week or 3 5 percent of the normal
work week, 	and temporary or 	seasonal 	employees who work 	less 	than
100 days a year. 	(Minn. 	Stat. 	sec. 	179.63, 	subd. 	7.)
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there was 	no 	substantial 	change 	in 	job duties 	since 	the 	original
certification which 	excluded 	such drivers. 	It 	is 	unclear on what
basis 	they were 	excluded 	originally.
ORDER
Based on the 	foregoing findings 	of 	fact, 	conclusions 	of 	law
and the 	entire record in this 	case, 	Local 	715's 	unit modification
petition is 	hereby GRANTED. 	It 	is 	therefore ORDERED that
substitute 	drivers 	be placed 	in 	the 	existing operations-support
services unit.
Chairperson Hesse 	and Member Cunningham 	joined 	in 	this 	Decision.
. . . .
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STATE 	OP 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SANTA CLARA COUNTY OFFICE 	OF
EDUCATION,
Employer,
-and-
LOCAL 	7 1 5 , 	SEIU, 	AFL-CIO/CLC,
Exclusive Representative.
Representation Case
No. 	SF-UM-442 	(R-24B)
PROPOSED DECISION
(2/9/90)
Appearances: 	Littler, 	Mendelson, 	Fastiff & Tichy by Patricia
White, 	Attorney, 	for Santa Clara County Office of Education; 	Van
Bourg, 	Weinberg, 	Roger and Rosenfeld by Vincent Harrington,
Attorney, 	for Local 715, 	SEIU, AFL-CIO/CLC.
Before 	Fred D'Orazio, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
On May 17, 	1989, 	Local 715, 	SEIU, AFL-CIO/CLC 	(hereafter
Union or Local 	715) 	filed a unit modification petition under
Public 	Employment 	Relations 	Board 	(hereafter PERB 	or Board)
regulation 	32781(a)(1).1 The petition seeks 	to add 	substitute
bus 	drivers 	to 	an operations-support 	services 	unit 	represented by
1PERB 	regulations 	are 	codified 	at California Administrative
Code, 	Title 8, 	section 31001, 	et. 	seq. 	Section 32781(a) provides
in part:
(a) 	A recognized or certified employee
organization may file with the regional
office 	a petition for modification of 	its
unit(s):
(1) 	To add to the unit
unrepresented 	classifications 	or
positions;
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
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the 	Union at 	the 	Santa Clara 	County Office of 	Education
(hereafter Employer or COE). 	On June 5, 	1989, 	the Employer filed
its 	opposition to the petition.
The 	informal 	conference on August 	15, 	1989 	did not 	resolve
the dispute. 	A 	formal 	hearing was 	conducted by the undersigned
on December 4, 	1989, 	in San Jose, 	California. 	The final brief
was received on January 29, 	1990.
FINDINGS 	OF 	FACT
Local 	715 	is 	the exclusive representative of 	an operations-
support 	services unit 	(OSS unit) 	within the County Office of
Education. 	There are three categories 	of bus drivers 	in the OSS
unit. 	Category 	"A" 	drivers 	are permanent drivers with 	fixed
routes. 	They 	start and end each day at home, 	where they keep
their vans. 	There are approximately 	147 	"A" 	drivers 	in the OSS
unit. 	Category 	"B" 	drivers 	are also permanent drivers with 	fixed
routes. 	Their days 	start 	and end at the 	transportation yard.
Their vans are kept at the yard. 	There are approximately 	10 	"B"
drivers 	in the OSS unit. 	"A" 	and 	"B" 	drivers are generally
referred to as permanent drivers. 	Category 	"C" 	drivers 	are known
as 	"float" 	drivers. 	They act as 	replacements 	for permanent
drivers 	and have 	no permanently assigned 	routes 	of 	their own.
Like 	"A" 	and 	"B" 	drivers, 	float drivers are full-time employees.
The number of 	float drivers 	is 	set by the 	collective bargaining
agreement. 	There are approximately 	22 	float drivers 	now in the
OSS unit.
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Local 	715 	seeks 	to 	add approximately 	11 	substitute drivers
to the OSS 	unit. 	Substitute drivers 	are called to drive 	only
after all 	float 	drivers 	have 	been 	assigned 	and 	open routes
remain. 	The 	substitute drivers 	are 	currently 	in no unit 	and 	are
thus 	unrepresented.
The 	qualifications 	for 	substitute drivers 	are 	the 	same 	as
those 	for permanent drivers. 	All drivers 	must possess 	a valid
California driver's 	license. 	They must 	maintain a California bus
driver's 	certificate, 	a medical certificate, 	and a Red Cross
certificate.
Bargaining 	unit 	drivers 	transport 	handicapped 	students 	in
minivans. 	The vans 	carry between 	six and twenty passengers.
Substitute drivers 	drive 	the 	same vans 	and 	transport 	the 	same
students 	over the 	same routes 	as unit drivers.
The COE 	maintains 	a 	list 	of 	approximately 	10-12 	substitute
drivers. 	The 	list 	is updated on a weekly basis. 	In the event a
substitute 	is 	needed, 	the transportation supervisor calls 	him/her
from the 	list. 	(The 	same procedure 	is used to assign float
drivers 	who 	replace permanent drivers.) 	These 	calls 	typically
come 	at 	approximately 	4:30 a.m., 	so 	the 	substitute 	driver 	must
remain available at that hour. 	The 	substitute 	is 	not obligated
to 	accept every assignment. 	However, 	to remain on the 	list, 	the
substitute 	cannot 	consistently reject assignments. 	Gary 	Slade,
director of 	transportation, 	testified that 	substitutes who 	are
repeatedly unavailable 	are dropped 	from the 	list, 	but 	substitutes
who 	are 	consistently available remain on the 	list. 	Assignments
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from the 	substitute 	list 	are 	not made 	in any particular order.
The COE 	has 	complete discretion in this 	regard.
Once 	assigned, 	the 	substitute reports 	to the house of a
permanent driver or the 	transportation yard, 	depending 	on where
the van 	is 	kept. 	The 	substitute receives 	verbal 	or written
instructions 	from the permanent driver. 	Typical 	instructions
cover routes 	and care of particular 	students. 	Most of 	the time
these 	instructions 	are written and 	left on the 	seat 	or 	in the
overhead 	visor.
Like the permanent driver, 	the 	substitute driver 	is 	required
to check the oil, 	gas, motor, 	lights, 	emergency buzzer, 	etc.,
before beginning the route. 	During the route, 	the 	substitute
driver, 	like the permanent driver, 	is 	in contact with the
dispatcher. 	After the assignment 	is over, 	the 	substitute returns
the van to 	its 	original 	location. 	Both the 	substitute driver and
the permanent 	driver 	are 	required 	to 	complete 	mileage 	and 	other
forms 	during 	the 	course 	of 	an assignment.
Substitute 	and bargaining unit drivers 	receive 	the 	same 	in-
service 	training. 	All drivers 	are required to 	complete 	ten hours
of 	training 	for recertification each year. 	Substitute drivers
are paid 	for 	the 	time 	they participate 	in 	the 	in-service
training.
Substitute 	assignments 	vary 	in 	length. 	An assignment 	may be
for a half 	day or a whole day. 	A 	substitute may also drive 	the
same 	route 	for 	several 	consecutive days when the permanent 	driver
is 	on extended leave.
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Frank 	DelVillar 	and 	Sharlet 	Ramento 	are 	bargaining 	unit
drivers who 	served previously as 	substitute drivers. 	As
substitute drivers, 	they worked five days 	a week. 	Documents
introduced by 	the COE 	as 	representative 	examples 	of 	substitute
driver hours 	show 	substitute drivers 	work a 	substantial 	number 	of
hours 	each week.2 Substitute 	drivers 	are 	not 	guaranteed 	any work
days per year. 	Unit drivers 	are guaranteed 	193 	days 	of work per
year at 	eight hours per day.
Wages 	for bargaining unit drivers 	range 	from $10.17 	to
$12.08 	per hour. 	Bargaining unit drivers 	also receive 	a variety
of 	fringe benefits 	such as 	health and welfare, 	sick leave,
vacation and holidays. 	They also 	earn PERS 	credit 	and 	seniority
for purposes 	of 	layoff. 	They are 	covered by a 	comprehensive
2For example, 	records 	show that eight 	substitute drivers
worked during the pay period September 26 	to October 	25, 	1989.
Gilbert 	Uresti worked 	9 	days 	during 	this 	period, 	averaging 	6.6
hours per day. 	Virginia Olivo worked 	19 	days, 	averaging 	7.5
hours per day. 	Larry Hansford worked 	13 	days, 	averaging 	7.3
hours per day. 	Frances Munoz worked 5 days, 	averaging 8 	hours
per day. 	Sharlet Ramento worked 	19 	days, 	averaging 	7.8 	hours per
day. 	Rachel Hernandez worked 	14 days, 	averaging 7.6 hours per
day. 	Elizabeth Villa worked 	18 days, 	averaging 8.3 	hours per
day. 	Nancy Dove worked 	12 	days, 	averaging 7.3 	hours per day. 	In
addition, 	records 	for the periods 	February 6-10, 	1989 and May 22-
26, 	1989 	show that 	substitute drivers worked a 	substantial 	number
of days. 	For the February 6-10 period, 	10 	of 	18 	substitute
drivers worked 	5 	days, 	the remainder being 	largely unavailable.
For the period May 22-26, 	8 	of 	11 	substitute drivers worked 4 or
5 days; 	the remaining 3 drivers worked 2 or 3 days.
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collective bargaining agreement. 	Substitute drivers, 	on the
other hand, 	receive $8.85 per hour and no benefits.3
Bargaining unit 	drivers 	are 	evaluated under the 	collective
bargaining agreement. 	Although 	substitute drivers 	receive 	no
formal 	evaluation, 	they are evaluated on an informal 	level 	as 	to
promptness, 	treatment of children, 	safety, 	etc. 	Deficiencies in
these 	areas 	result 	in elimination from the 	substitute 	list. 	The
COE 	has 	complete discretion 	in removing 	substitutes 	from the 	list
in the 	event 	of 	unsatisfactory performance.
Substitute drivers who wish to become unit drivers 	must
compete 	for 	such positions 	under COE procedures 	and win placement
on an eligibility 	list. 	Once on the 	list, 	substitute drivers 	are
selected as 	vacancies 	arise. 	Permanent driver vacancies 	must be
filled 	from the 	list. 	Experience as 	a 	substitute driver 	is 	not
required 	for placement 	on the 	list 	or 	for appointment 	from the
list. 	Slade testified that 	5 	of the 	11 permanent drivers hired
for the 	1989-90 school year came 	from outside the COE. 	In
contrast, 	the 	list of bargaining unit drivers 	for the 	1989-90
school 	year 	indicates 	that 	every driver had previously worked 	as
a 	substitute driver.
3In addition, 	Slade described a 	sub-differential pay
concept. 	Sub-differential wages 	are paid to a permanent driver
when his/her 	sick 	leave 	is 	exhausted and a 	substitute 	is 	used.
The permanent driver 	receives 	the 	difference between the
contractual 	rate of 	pay 	and 	the 	rate 	received by 	the 	substitute
driver. 	As 	the 	substitute driver's hourly rate 	increases,
according to 	Slade, 	the permanent driver loses 	the equivalent
amount 	in 	calculating the 	sub-differential.
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Negotiations 	History
Substitute 	drivers 	have 	been 	excluded 	from 	the 	unit 	since
Local 	715 	became the 	exclusive representative 	in 	1977. 	Helen Kay
King has 	been a union steward and negotiator 	since 	1977. 	She
testified 	that 	Local 	715 	repeatedly tried 	to 	negotiate 	benefits
for substitute drivers, 	but COE refused. 	Eventually, 	COE agreed
to 	the 	float driver 	concept. 	Slade 	testified that most 	of 	the
negotiations 	on this 	topic 	centered 	on the 	number 	of 	float
drivers 	needed.
The 	agreement provides 	for a minimum of 	ten float drivers,
plus 	one 	additional 	float driver 	for 	every permanent 	driver 	on a
long-term leave of 	absence. 	At any given time, 	there are about
8-15 	permanent drivers 	on leave. 	The 	contract also 	contains 	a
statement of COE's 	"intent" 	to not use 	substitutes.
ISSUE
Should 	substitute drivers 	be placed 	in the 	operations-
support 	services 	unit?
DISCUSSION
Local 	715 	argues 	that 	the 	community of 	interest between
substitute 	drivers 	and bargaining unit drivers 	compels 	that 	the
substitutes be placed in the OSS unit. 	COE, 	on the other hand,
contends 	there 	is 	no 	community of 	interest and the bargaining
history 	supports 	excluding 	substitute drivers 	from the 	OSS 	unit.
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Community 	of 	Interest
The Educational Employment Relations Act 	(EERA), 	section
3545(a), 	sets out the following criteria to be used in
establishing 	appropriate units:
. 	. 	. 	[T]he 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.
These 	criteria 	have 	been applied 	in only 	one 	case 	dealing with
substitute bus 	drivers. 	In circumstances 	strikingly 	similar to
those presented here, 	the 	Board refused to 	establish a 	separate
unit 	of 	substitute drivers. 	The 	Board 	concluded that 	the
community 	of 	interest between unit 	drivers 	and 	substitute 	hourly,
temporary hourly and 	even trainee drivers was 	indisputable. 	All
drivers were paid the 	same rate, 	with the hourly drivers
receiving a percentage of 	full-time pay. 	The 	substitute drivers
received no 	fringe benefits, 	sick leave or vacations. 	Substitute
drivers 	were 	not 	covered by 	the 	district's 	merit 	system 	for
promotion or retention, 	although about one half of 	the unit
drivers 	had been promoted 	from the 	ranks 	of 	the 	substitute
drivers. 	Both groups of drivers worked at the 	same 	location,
received the 	same 	training, 	were under the 	same 	supervision and,
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most 	importantly, 	performed the 	same work. 	San Diego Unified
School District 	(1981) 	PERB Decision No. 	170.4
Nevertheless, 	COE argues 	that San Diego is 	not controlling,
since that case, 	unlike the present case, 	contains no conflicts
of 	interests 	between the two groups 	of drivers. 	In conclusory
fashion, 	COE argues 	that the 	contractual provisions 	setting the
number of float drivers, 	sub-differential pay, 	and the employer's
"intent" 	to 	not use 	substitute workers 	are 	conflicts which
preclude 	finding a 	community of 	interest.
The potential 	for 	conflict based on these 	subjects 	is
somewhat 	exaggerated by COE. 	These matters 	more 	realistically
represent 	legitimate negotiating topics, 	not conflicts which
destroy 	community of 	interest. 	While 	such 	subjects 	may 	create
difficult 	issues 	to be 	addressed as 	part 	of 	the 	collective
bargaining process, 	such a burden cannot be 	avoided under the
Act. 	As 	the Board indicated by its 	San Diego decision, 	it
facilitates 	the negotiating process 	to address 	the 	interests 	of
all bus 	drivers 	in a combined rather than a 	separate unit.
Relying primarily 	on New Haven 	Unified 	School 	District 	(1977)
EERB Decision No. 	14, 	the COE next argues that differences 	in
terms 	and 	conditions 	of 	employment preclude 	finding 	a 	community
4As COE points 	out in its brief, 	other 	jurisdictions have
taken a different view. 	See Quick-Lahmann Express. 	Inc. 	(1982)
262 NLRB 220 	[110 LRRM 1327]; 	Patzwald v. 	PERB 	(Minn. 	1981) 	306
N.W.2d 	118 	[110 LRRM 3376].
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of 	interest.5 In New Haven the Board excluded home 	instructors
from a unit 	of 	regular certificated 	teachers. 	Home 	instructors
tutor ill 	students 	in the hospital 	or at home 	to keep 	them
abreast 	of 	the work being performed 	in the 	classes 	the 	students
would otherwise 	attend. 	The home 	instructors 	possessed 	the 	same
credentials 	as 	regular teachers. 	Their 	contact with regular
teachers 	consisted 	of 	coordinating 	the 	tutoring with 	the
classroom 	instruction. 	They were 	assigned work on an as-needed
basis, 	were not 	formally evaluated, 	had no written contract,
received no 	fringe benefits, 	and were paid on an hourly basis.
Home 	instructors were 	given no preference 	for vacancies 	in the
certificated 	unit.
New Haven, 	an early PERB decision, 	is not controlling here.
In a 	subsequent 	case, 	under 	facts 	almost 	identical 	to those 	in
New Haven, 	the 	Board placed home 	instructors 	in a unit with
regular teachers. 	El Monte Union High School 	District 	(1980)
PERB Decision No. 	142. 	Thus, 	the continuing validity of New
Haven is 	questionable.
However, 	even if New Haven is good case law, 	it is 	easily
distinguished. 	While there 	are many 	similarities 	between the
home 	instructors 	in New Haven and 	the 	substitute drivers 	here,
there are also 	significant differences. 	Unlike the home
instructors, 	substitute drivers work at the 	same 	location as 	the
unit drivers 	and they do precisely the 	same work. 	Because
5Prior to January 	1, 	1978, 	PERB was known as the Educational
Employment 	Relations 	Board.
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tutoring 	ill 	students 	on a one-on-one 	level 	at home or 	in a
hospital 	is 	very different 	from teaching 	consecutive 	classes 	of
students, 	it 	follows 	that teachers 	in both groups have equally
different 	interests. 	Community of 	interest 	is 	found only when
employees 	"share a 	substantial mutual 	interest 	in matters 	subject
to 	meeting 	and 	negotiating." 	Monterey 	Peninsula 	Community
College District 	(1978) 	PERB Decision No. 	76, 	p. 	13.
If 	one 	compares 	substitute drivers with certificated
employees, 	it is 	clear that the drivers 	are more like 	substitute
classroom teachers 	than they 	are 	like home 	instructors.6 For
example, 	in Dixie Elementary School District 	(1981) 	PERB Decision
No. 	171, 	the Board found a community of 	interest between regular
teachers 	and 	substitute 	teachers 	who 	performed 	"basically 	the
same 	job functions." 	Like 	substitute drivers, 	the 	substitute
teacher's primary responsibility was 	to 	carry 	out 	the plans 	and
goals 	of 	the 	absent unit 	employee. 	The 	Board rejected 	arguments
that substitute teachers, 	like the substitute drivers here, 	were
hired on an as-needed basis 	from an available pool, 	had no
expectancy 	of 	continued 	employment, 	and worked widely differing
numbers 	of days per year.
6COE 	contends 	that 	Board decisions 	including 	substitute
teachers 	in bargaining units 	with 	regular 	classroom teachers 	are
not 	applicable here because the Act 	creates 	a presumption that
all 	classroom teachers 	should be 	in the 	same unit. 	See Peralta
Community College District 	(1978) 	PERB Decision No. 	77. 	This
contention is 	not persuasive. 	Although the presumption exists,
it 	merely relates 	to 	the burden of proof 	in certificated 	cases.
In the 	final 	analysis, 	the 	criteria used to determine 	community
of 	interest 	are 	the 	same 	for 	certificated 	and 	classified
employees.
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The Board has 	also rejected the argument, 	advanced here by
COE, 	that disparities 	in wages 	and fringe benefits point to a
lack of 	community of 	interest. 	In certificated and
noncertificated 	cases, 	the Board has 	held that 	these 	factors 	are
not controlling. 	Wages, 	hours 	and other terms 	and conditions 	of
employment 	are 	legitimate 	subjects 	for negotiations 	and
disparities 	frequently exist 	largely because, 	absent exclusive
representation, 	working 	conditions 	are unilaterally 	set by the
employer. 	See Los 	Rios Community College District 	(1977) 	EERB
Decision No. 	18, 	p. 	11; 	Long Beach Community College District.
supra. 	p. 	14; 	Unit Determination for Technical, 	Skilled Crafts.
Service 	and 	Professional 	Employees 	of 	the 	University of
California 	(1983) 	PERB Decision No. 	290-H, p. 	8.
COE 	next argues 	that a 	community of 	interest 	cannot 	exist
because the 	substitute drivers 	are 	"casual" 	employees. 	Casual
employees 	are those who, 	due to their 	sporadic 	or 	intermittent
relationship with the 	employer, 	lack a 	sufficient 	community 	of
interest with 	regular 	employees 	to 	be 	included 	in 	the 	regular
unit. 	Unit Determination for Employees 	of 	the California 	State
University and Colleges 	(1981) 	PERB Decision No. 	173-H, 	citing
Mission Pak Co. 	(1960) 	127 NLRB 	1097 	[46 LRRM 1161]. 	The
substitute drivers here do not 	fall under this definition. 	The
testimony 	of 	DelVillar and 	Ramento 	indicates 	that 	at 	least 	some
substitute drivers 	frequently work 	five days 	a week. 	And the
representative 	examples 	of 	substitute driver work records 	confirm
that 	the majority of 	substitute drivers 	have more 	than a mere
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- -
- -
"sporadic 	or intermittent" 	relationship with COE. 	See page 	5,
footnote 2, 	supra.
In addition, 	the Board has 	refused to 	find casual 	status 	in
situations 	similar to that presented here. 	For example, 	the
Board 	found 	a 	community 	of 	interest between 	full 	time 	employees
of 	the 	University 	of 	California 	and 	employees 	of 	"short 	or
intermittent 	duration" 	in circumstances 	the 	Board described 	as
"roughly analogous" 	to those of the 	substitute drivers 	in San
Diego Unified School 	District, 	supra. 	Unit Determination 	for
Technical, 	Skilled Crafts. 	Service and Professional 	Employees 	of
the University of California, 	supra. 	PERB Decision No. 	290-H, 	pp.
7-8. 	See 	also 	Unit 	Determination 	for Service 	Employees 	of 	the
University of California 	(1983) 	PERB Decision No. 	245c-H, 	p. 	16
(part-time 	drivers 	who 	transport passengers 	or 	supplies 	and 	have
no 	expectation of 	continued employment not excluded as 	casual).
Another argument offered by the COE 	is 	that 	substitute
drivers 	do 	not have 	substantial 	interaction with bargaining 	unit
drivers. 	This may be so, 	but neither do bargaining unit drivers
have 	substantial 	interaction among themselves. 	Both groups 	of
drivers 	transport 	students 	and 	interact with other drivers 	at 	the
various 	schools, 	in the transportation yard or at 	in-service
training 	sessions. 	The 	substitute drivers have the 	same
interaction with unit drivers 	as 	unit drivers 	have 	among
themselves. 	Under these circumstances, 	the lack of 	interaction
argument 	is 	unconvincing. 	San Diego Unified School 	District.
supra.
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Bargaining 	History
COE's 	contention that the 	Union's 	practice 	of 	negotiating
for 	additional 	float drivers 	runs 	counter to 	its 	current 	request
to represent substitute drivers, 	even if true, 	is not a good
reason to 	exclude 	substitute drivers 	from the OSS unit. 	There 	is
nothing 	inconsistent 	in Local 	715's 	negotiating 	efforts 	on behalf
of 	float drivers 	and 	its 	current attempt 	to 	represent 	substitute
drivers. 	Local 	715 	attempted to negotiate 	for 	substitute
drivers, 	but the COE refused. 	Local 	715 	then concentrated on
float drivers 	only because 	it 	represented 	float drivers 	and was
precluded 	from representing 	substitute drivers. 	This 	scenario 	of
events 	does 	not 	suggest that 	it 	is 	now inappropriate 	for Local
715 	to 	represent 	substitute drivers 	and 	float drivers 	in the 	same
unit.
The 	limited 	evidence 	of 	negotiating history does 	not 	support
the 	conclusion that 	irreconcilable 	conflicts 	exist which would
disrupt 	negotiations 	or the 	efficiency of 	the COE 	if 	substitute
drivers 	are placed in the OSS unit. 	As mentioned earlier, 	the
types 	of 	"conflicts" 	raised by COE are more akin to problems 	or
issues which 	should be 	addressed at 	the bargaining 	table. 	Even
if 	substitute drivers 	and permanent drivers 	have different
interests, 	this does 	not necessarily argue 	in favor of 	excluding
substitutes 	from the unit. 	While different 	interests 	among
divergent 	groups 	within the 	bargaining unit 	may 	result 	in more
complex 	negotiations, 	they do not 	automatically translate 	into
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disruption. 	Oakland Unified School District 	(1983) 	PERB Decision
No. 	320; 	Palo Alto Unified School District 	(1983) 	PERB Decision
No. 352.
CONCLUSION
Based on the 	findings 	of 	fact, 	conclusions 	of 	law and the
entire record herein, 	Local 	715's 	unit modification petition 	is
granted. 	It 	is 	hereby ORDERED that 	substitute bus 	drivers 	be
placed 	in the 	operations-support 	services 	unit.
Pursuant to California Administrative Code, 	title 	8, 	section
32305, 	this 	Proposed Decision and Order 	shall become 	final unless
a 	party 	files 	a 	timely 	statement of 	exceptions 	with 	the 	Board
itself 	at 	the headquarters 	office 	in Sacramento within 	20 days 	of
service 	of 	this 	Decision. 	In accordance with PERB Regulations,
the 	statement 	of 	exceptions 	should 	identify by page 	citation 	or
exhibit number the portions 	of the record, 	if any, 	relied upon
for 	such exceptions. 	See California Administrative Code 	title 	8,
section 	32300. 	A document 	is 	considered 	"filed" 	when actually
received before the 	close of business 	(5:00 p.m.) 	on the 	last day
set 	for 	filing" 	. . . 	or when 	sent by telegraph 	or 	certified 	or
Express 	United States mail, 	postmarked not 	later than the 	last
day 	set 	for 	filing. 	. . . " 	See California Administrative 	Code,
title 	8, 	section 32135. 	Code of Civil Procedure 	section 	1013
shall 	apply. 	Any 	statement of 	exceptions 	and 	supporting brief
must 	be 	served 	concurrently with 	its 	filing upon 	each party 	to
this proceeding. 	Proof 	of 	service 	shall 	accompany 	each 	copy
15

served on a party or 	filed with 	the 	Board 	itself. 	See California
Administrative Code, 	title 8, 	sections 32300, 	32305, 	and 32140.
DATED: 	February 	9, 	1990 Fred 	D'Orazio
Administrative Law Judge
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