Palomar Community College District (PERB 0947E)

STATE 	OP 	CALIFORNIA
DECISION OP 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
PALOMAR 	COMMUNITY 	COLLEGE
DISTRICT,
Employer,
and
PALOMAR 	COLLEGE 	FACULTY
ASSOCIATION/CCA/CTA/NEA,
Employee 	Organization.
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) 	Case No. 	LA-R-980
PERB Decision No. 	947
July 	14, 1992
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Appearances: 	Littler, 	Mendelson, 	Fastiff & Tichy, 	by Richard J.
Currier and C. 	Anne Hudson, 	Attorneys, 	for Palomar Community
College District; 	Reich, 	Adell & Crost, 	by Glenn Rothner and
Laurence S. 	Zakson, 	Attorneys, 	for Palomar College Faculty
Association/CCA/CTA/NEA.
Before Hesse, 	Chairperson, 	Caffrey and Carlyle, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the Palomar
Community College 	District 	(District) 	and 	the Palomar College
Faculty Association/CCA/CTA/NEA 	(Association) 	to 	a 	PERB 	regional
director's proposed decision 	(attached) 	of the 	formation of 	a
bargaining unit comprised of 	faculty. 	Essentially, 	the District
takes 	exception to the regional 	director's 	finding that
department 	chairpersons 	and directors 	are 	not 	supervisors 	and,
thus, 	are 	included in the proposed bargaining unit. 	The
Association objects 	to the 	regional 	director's 	denial 	of 	its
request 	to 	schedule 	an election prior to the 	issuance of 	a 	final
decision.
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The Board has 	reviewed the 	entire 	record 	in this 	case,
including the transcript, 	exhibits, 	proposed decision, 	exceptions
and 	the 	responses 	filed thereto. 	The 	Board 	finds 	the 	regional
director's 	findings 	of 	fact 	and 	conclusions 	of 	law to be 	free 	of
prejudicial 	error and adopts 	them as 	the decision of 	the 	Board
itself 	consistent with 	the 	following discussion.
DISCUSSION
Chairpersons/Directors
On appeal, 	the District contends 	the regional director
misconstrued the 	evidence 	in reaching his 	factual 	conclusions.
Specifically, 	the District contends 	the regional 	director erred
by 	finding 	that: 	1)adjunct 	faculty 	are 	interviewed 	and hired 	by
committee; 	2) 	chairpersons/directors have no authority to
terminate adjunct 	faculty; 	and 3) 	chairpersons/directors 	do not
exercise 	significant 	supervisory 	authority 	over 	classified
employees 	and 	full-time 	faculty. 	After a 	review of 	the 	record,
including the transcripts 	and exhibits, 	it is 	apparent there 	is
ample 	evidence to 	support the regional director's 	factual
findings 	concerning 	the 	authority 	and 	responsibility 	of 	the
chairpersons/directors. 	Therefore, 	these exceptions are
rejected.
The 	District 	also 	challenges 	the 	regional 	director's
application of 	Education Code 	section 87610.l(e).1 The District
1Education Code section 87610.l(e) 	states:
Any 	employees 	who 	are primarily 	engaged 	in 	faculty
or other bargaining unit duties, 	who perform
"supervisory" 	or 	"management" 	duties 	incidental 	to
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contends 	the 	regional director 	interpreted 	this 	section too
broadly. 	The District 	argues 	that 	this 	section 	"discourages
exclusion of 	faculty members 	as 	supervisory 	or management
employees 	solely 	if 	they perform 	'incidental' 	duties 	on
committees." 	The District also 	contends 	that the Ralph C. 	Dills
Act 	(Dills Act)2 and the Educational Employment Relations Act
(EERA)3 differ substantially in this 	area. 	The District asserts
the two-part test under Dills Act 	section 3513(g)4 is
their performance 	of 	primary professional 	duties
shall 	not 	be deemed 	supervisory or managerial
employees 	as 	those 	terms 	are defined 	in Section
3540.1 	of the Government Code, 	because of 	those
duties. 	These duties 	include, 	but are not limited
to, 	serving on hiring, 	selection, 	promotion,
evaluation, 	budget development, 	and affirmative
action committees, 	and making effective
recommendations 	in 	connection with these
activities. 	These 	employees whose duties 	are
substantially 	similar 	to 	those 	of 	their 	fellow
bargaining unit members 	shall 	not be 	considered
supervisory or management 	employees.
(Emphasis 	added.)
2Dills Act 	is 	codified at Government Code 	section 	3512 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	herein
are to the Government Code.
3EERA is 	codified at Government Code 	section 	3540 	et 	seq.
4Dills Act section 3513(g) 	states:
"Supervisory employee" 	means 	any 	individual,
regardless 	of the 	job description or title, 	having
authority, 	in the interest of the employer, 	to
hire, transfer, 	suspend, 	lay off, recall, promote,
discharge, 	assign, 	reward, 	or discipline other
employees, 	or responsibility to direct them, 	or to
adjust their grievances, 	or effectively to
recommend this action, 	if, 	in connection with the
foregoing, 	the exercise of this 	authority 	is 	not
of a merely routine or clerical nature, 	but
requires 	the use of 	independent 	judgment.
Employees whose 	duties 	are 	substantially 	similar
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inapplicable to EERA 	section 	3540.l(m)5 and the regional director
erred 	in utilizing 	it here.
The 	District 	urges 	an overly 	restrictive 	reading 	of
Education Code 	section 87610.l(e). 	This 	section provides that
incidental 	supervisory duties 	"include, 	but are not 	limited to."
serving on various 	committees. 	The 	language of 	this 	section does
not 	limit 	incidental 	supervisory duties 	solely 	to participation
on committees.
The Board has 	established that 	the 	supervisory 	status
factors 	set out 	in EERA 	section 	3540.l(m) 	are 	evaluated 	in the
disjunctive. 	The 	independent 	and 	effective 	exercise 	of 	any 	one
of 	the 	criteria 	is 	sufficient 	to 	establish 	supervisory 	status.
(Sweetwater Union High 	School 	District 	(1976) 	EERB 	Decision
No. 	4;6 Glendale Community College District 	(1979) 	PERB Decision
to 	those of their 	subordinates 	shall 	not be
---------	considered 	to be 	supervisor	----y 	employees	-- - 	--	.
(Emphasis 	added.)
5EERA section 3540.l(m) 	states:
"Supervisory employee" 	means 	any employee,
regardless of job description, 	having
authority 	in the 	interest of 	the 	employer to
hire, transfer, 	suspend, 	lay off, recall,
promote, discharge, assign, reward, or
discipline other employees, 	or the
responsibility 	to 	assign work to 	and 	direct
them, 	or to adjust their grievances, 	or
effectively recommend such action, 	if, 	in
connection with the 	foregoing functions, 	the
exercise of that authority is 	not of 	a merely
routine or clerical nature, 	but requires the
use of 	independent 	judgment.
6Prior to January 	1, 	1978, 	PERB was known as the
Educational 	Employment Relations 	Board 	(EERB).
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No. 	88.) 	The Board has 	also held, 	in regard to community college
•employees, 	that their actions 	"must be viewed 	in light of 	long-
standing 	traditions 	of 	collegiality 	and 	shared 	authority within
institutions 	of higher 	education." 	(Los 	Rios 	Community College
District 	(1977) 	EERB Decision No. 	18.)
Dills Act 	section 	3513(g) 	contains 	language 	similar to
Education Code 	section 87610.1(e), 	providing that employees with
duties 	substantially 	similar to 	those 	of 	their 	fellow bargaining
unit members 	should not be 	considered 	supervisory 	employees. 	The
two-part 	test 	applied under the Dills Act 	requires 	a 	finding of
whether 	the 	employee 	has 	independently 	and 	effectively 	exercised
any of 	the type of 	activities 	considered to be 	supervisory. 	The
finding of 	supervisory 	status 	is 	then tested against 	the
"substantial 	similarity" 	requirement. 	This 	requires 	exclusion
from the 	unit when the 	employee's 	duties 	reach 	that point where
the 	supervisory obligation to 	the 	employer outweighs 	the
entitlement 	to 	the rights 	afforded rank and 	file 	employees.
(Unit Determination for the State of California 	(1980) 	PERB
Decision No. 	ll0c-S.)
Here, 	the 	chairpersons/directors 	do not exercise 	independent
and 	effective 	authority 	over 	their 	fellow 	faculty 	members 	as
required by EERA section 3540.l(m). 	Many decisions 	concerning
personnel matters 	and 	selection of 	adjunct 	faculty, 	budget 	issues
and 	instructional 	scheduling are made 	in a 	collaborative,
collegial 	manner. 	Application of 	the 	substantial 	similarity
requirement bolsters 	the 	finding that 	their 	responsibilities 	to
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the 	District do not 	exceed their rights 	as 	rank and 	file
employees.
Posting
The District also 	excepts 	to 	the regional 	director's
decision not 	to require posting of 	the notice of 	the 	amended
petition. 	The 	amendment 	altered 	the proposed unit 	from one
consisting of 	only 	full-time 	faculty 	to 	also 	include part-time
faculty, 	increasing the 	size 	of 	the proposed bargaining unit 	from
264 	to more than 	1,000. 	The District argues that a majority of
employees 	in the amended unit were deprived 	of 	notice of 	the
Association's desire to represent them. 	Further, 	other 	employee
organizations were deprived of 	the 	opportunity to 	intervene 	in
the proceedings.
PERB Regulation 33100(c)7 provides discretion to a Board
agent 	to decide whether 	to 	require posting of proposed 	unit
amendments 	after notice of 	a 	representation hearing has 	been
7PERB 	Regulations 	are 	codified at California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	PERB Regulation
33100(c) states:
Amendments to correct technical 	errors, 	add
or delete 	job 	classifications 	or positions
from a party's 	proposed unit which are
requested after the 	issuance of 	the notice of
hearing are 	subject 	to approval 	by the 	Board
agent assigned to the hearing. 	The Board
agent may grant the requested amendment, 	if
it will not unduly impede the hearing, 	and 	if
sufficient proof 	of 	support 	is 	evidenced to
support 	any request 	for addition of 	job
classifications. 	Posting of any 	such
amendments 	shall 	be 	at the discretion of 	the
Board agent.
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issued. 	In this 	case, 	the regional director 	found that 	although
the 	amendment would 	add 	a 	large 	number 	of part-time 	faculty 	to
the proposed unit, 	it would not change 	its 	fundamental nature.
In 	fact, 	the 	District 	initially objected to 	the 	appropriateness
of 	this 	unit because 	it did not 	include part-time 	faculty. 	In
addition, 	the Association provided proof 	of 	majority 	support 	from
the 	larger proposed unit. 	Further, 	although other employee
organizations 	had 	several 	opportunities 	to 	seek 	intervention or
limited party status, 	none came 	forward. 	Refusal to require a
posting 	of 	the notice of 	the amended unit 	in this 	case did 	not
prejudice 	either the 	employees 	or other employee 	organizations.
Accordingly, 	this exception is rejected. 	.
Conflict 	of 	Interest
On appeal, 	the District alludes 	to a possible bias by the
regional 	director due to his 	personal 	friendship with 	the
Association's 	counsel. 	The regional 	director noted his
relationship with Association's 	counsel 	on the record 	in accord
with 	PERB Regulation 32155. 	No objection was 	raised by the
District 	until 	a proposed decision was 	issued which was 	contrary
to the District's position. 	Therefore, 	this contention is
rejected.
Election
The Association 	filed 	exceptions 	to 	the 	regional 	director's
denial of 	its 	request 	to 	schedule 	an election prior to 	issuance
of 	a 	final decision. 	The Association argues 	that public 	policy
and 	employee 	free 	choice would best be 	served 	if 	the 	election is
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allowed 	to 	go 	forward notwithstanding 	the pendency 	of 	any
exceptions. 	The Association urges 	that the 41 	chairperson/
director positions 	in dispute be 	allowed to vote 	subject 	to 	a
challenged ballot 	procedure.
EERA assigns 	broad powers 	and duties 	to the 	Board. 	EERA
section 	3541.3(a) 	specifically 	empowers 	the Board 	"[t]o determine
in disputed cases, 	or otherwise approve, 	appropriate units," 	and
section 3541.3(g) 	gives the Board the power "[t]o adopt 	. 	. 	.
rules 	and regulations 	to 	carry 	out 	the provisions 	and 	effectuate
the purposes and policies" 	of EERA.
EERA also 	sets 	forth the procedure 	for 	conducting
representation elections. 	EERA 	section 	3544.1 	permits 	an
employee 	organization and a public 	school 	employer 	to 	mutually
agree on a proposed bargaining unit, 	allowing the 	employer to
grant voluntary recognition to 	the 	employee 	organization. 	Where
voluntary recognition is 	not granted and the nature 	of 	the
proposed bargaining unit 	is 	in dispute, 	the Board must determine
the 	appropriateness 	of 	the proposed unit.8 The 	Board then
8EERA section 3545(a) 	states, 	in pertinent part:
(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.
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conducts 	an election pursuant 	to 	section 3544.7. 	Section
3544. 7 (a) provides, in pertinent part:	1 . : 8 4
Upon receipt of 	a petition filed pursuant 	to
Section 3544.3 	or 3544.5, 	the board shall
conduct 	inquiries 	and 	investigations 	or hold
any hearings 	it deems 	necessary 	in order to
decide the questions 	raised by the petition.
The 	determination of 	the 	board may be based
upon the 	evidence 	adduced 	in the 	inquiries,
investigations, 	or hearing. 	However, 	if the
board 	finds 	on the basis 	of 	the 	evidence 	that
a question of representation exists, 	or a
question of 	representation 	exists 	pursuant 	to
subdivision (a) 	or 	(b) 	of Section 3544.1, 	it
shall 	order that 	an 	election be 	conducted by
secret ballot 	and 	it 	shall 	certify the
results 	of 	the 	election on the basis 	of which
ballot 	choice 	received 	a 	majority of 	the
valid votes 	cast.
The 	Board has 	exercised 	its 	broad 	authority 	in adopting
regulations 	governing the 	conduct 	of 	representation 	elections 	in
furtherance of 	the 	EERA, 	including regulations 	concerning
specific 	election procedure, 	representation hearings 	and
resolving questions 	of 	the 	appropriateness 	of 	the proposed
bargaining unit. 	In 	implementing the 	authority assigned 	to 	PERB
under EERA, 	the Board has 	adopted regulations which 	currently
require 	that a 	final 	Board decision be 	issued before 	a
representation election is 	conducted, 	unless 	the parties 	mutually
agree upon an appropriate unit and request 	a consent 	election.9
9EERA does 	not 	either 	expressly 	authorize 	or prohibit 	the
ordering of 	an election by the 	Board prior to a 	final 	Board
decision regarding the appropriateness 	of a bargaining unit. 	If
the Board concludes 	that 	the purposes 	of 	the EERA could be 	better
served 	under 	certain 	circumstances 	by 	conducting 	an 	election
prior to 	a 	final decision on appropriateness 	of 	a bargaining
unit, 	the Board 	is 	empowered by EERA to adopt rules 	and
regulations 	authorizing 	such an election process.
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Specifically, 	PERB Regulation 33460 provides:
Elections 	in Consent Units. 	At any time
prior to a final decision of 	the Board
regarding an appropriate unit, 	the parties
may 	mutually 	agree 	upon an appropriate 	unit
and request the 	Board to 	conduct a consent
election. 	The conduct of 	any election in a
consent unit 	should not be 	interpreted to
mean that 	the 	Board would 	find the unit 	in
question to be an appropriate unit 	in a
disputed 	case.
As 	PERB has 	exercised 	its 	authority under EERA by 	adopting
regulations 	which 	require 	the 	determination of 	the 	appropriate
bargaining unit before 	ordering an election, 	the Board rejects
the Association's 	exceptions.
The Association also 	notes 	that 	the National 	Labor Relations
Board 	(NLRB) 	has 	established 	a 	challenged ballot procedure which
requires 	that 	an 	election proceed pending 	review of 	challenges 	to
the regional director's 	decision, 	including questions 	of unit
determination.1 0 The Association 	argues 	such a procedure
eliminates 	election delay which 	interferes 	with 	employee 	free
choice.
The Association's 	reliance on NLRB 	law is 	inapplicable 	here.
PERB 	has 	no 	similar procedure 	requiring an 	election to 	be
conducted prior to the 	issuance of a 	final decision. 	Rather,
PERB 	Regulations 	require that 	a 	final 	decision be 	issued before 	a
representation election 	is 	conducted. 	(See PERB Regulations
33440, 	33450, 	33460, 	33470.) 	Therefore, 	the regional director
did 	not 	err when he 	concluded 	that 	PERB 	regulations 	prohibited
10N.L.R.B. 	Regulation 29 C.F.R. 	section 102.67(b).
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him 	from 	scheduling 	an 	election prior 	to 	resolution of 	any
challenges 	to 	the proposed decision,.
ORDER
For the reasons 	discussed above, 	the Board 	finds 	that a unit
comprised of 	all 	faculty, 	including 	specified department
chairpersons 	and directors, 	sought by the Palomar College Faculty
Association in its 	request for recognition petition, 	is
appropriate.
The 	Board 	finds 	the 	following unit 	is 	appropriate 	for
meeting 	and negotiating, 	provided 	an 	employee 	organization
becomes 	the 	exclusive representative:
Unit Title: 	Faculty
Shall Include: 	All faculty 	(full-time, 	part-time, 	adjunct,
contract or temporary), counselors, coaches, librarians,
child care center teachers, 	department chairpersons 	and
those 	directors 	not 	specifically 	excluded.
Shall Exclude: 	Classified employees, 	and the
superintendent/president, 	assistant 	superintendents/vice
presidents, 	deans, 	administrative interns, 	and the director,
athletics; 	director, 	institutional research and planning;
special assistant to the president; 	director, 	student
activities; 	director, 	library/media center; 	facility
planner; 	director, 	Escondido education center/extension
education; 	director, 	health services; 	director, 	extended
opportunity programs 	and 	services; 	director, 	extended day
services; 	director, auxiliary services; director,
facilities; 	director, 	human resources and affirmative
action; director, business services; 	director, 	financial
aid; 	contracts/special projects manager; 	director, 	disabled
student programs and services; 	director, 	matriculation;
director, 	Camp Pendleton/Fallbrook/Ramona 	education centers;
director, placement services; 	director, vocational programs;
director, admissions, records, and veterans' 	services;
director, 	Mt. 	Carmel/Poway education centers; 	director,
fiscal services; 	director, public information; 	director,
regional occupational programs; 	director, 	instructional
operations and services; 	director, 	information systems;
director, 	title III; 	chief advancement officer; 	director,
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child development 	instruction and 	services 	center; 	and
director, 	public 	services program.
Within 	10 days 	following 	issuance of 	the Notice of 	Decision,
the District 	shall post on all 	employee bulletin boards 	in each
facility of 	the 	employer 	in which members 	of 	the unit described
in the decision are employed, 	a copy of 	the Notice of 	Decision
attached hereto 	as 	an Appendix. 	The Notice of 	Decision 	shall
remain posted for a minimum of 	15 workdays. 	Reasonable 	steps
shall be taken to 	ensure that the Notice 	is 	not reduced 	in 	size,
altered, 	defaced or 	covered with 	any other material.
The regional 	director 	shall 	conduct 	an election at 	the 	end
of 	the posting period to determine whether the 	employees 	in 	the
appropriate 	unit wish to 	be 	represented by 	the Association,
unless 	the 	District 	chooses 	to grant voluntary recognition to 	the
employee 	organization.
The Board hereby ORDERS 	that 	this 	case be 	REMANDED to the
Los 	Angeles 	Regional 	Director 	for proceedings 	consistent with
this decision.
Member Carlyle 	joined 	in this 	Decision.
Chairperson Hesse's 	concurrence begins 	on page 	13.
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Hesse, 	Chairperson, 	concurring: 	With the exception of the
majority's 	discussion regarding 	the 	Palomar College 	Faculty
Association/CCA/CTA/NEA's 	(Association) 	request 	to 	schedule 	an
election prior to 	the 	issuance of 	a 	final 	Public 	Employment
Relations Board 	(PERB or Board) 	decision, 	I 	agree with the
majority's 	decision 	and 	PERB 	regional 	director's 	administrative
determination. 	I write 	separately to express 	my position
regarding 	the 	Board's 	authority 	and obligation to 	issue 	a 	final
Board decision determining 	an 	appropriate 	unit 	in disputed 	cases
prior 	to 	ordering 	an 	election.1
The preservation of 	the 	integrity of 	the 	statutory 	scheme 	of
the 	Educational 	Employment Relations Act 	(EERA) 	can best be
achieved by 	recognizing 	the paramount 	right 	of public 	school
employees 	to 	select an exclusive 	representative 	of 	their own
choice 	in an appropriate unit. 	The 	free 	choice of 	an exclusive
representative 	is 	a cornerstone of the EERA, 	as 	it 	is 	in all
analogous 	collective bargaining schemes. 	Specifically, 	EERA
begins by stating, 	at section 3540:
n
It 	is 	the purpose of this 	chapter to promote
the 	improvement of personnel 	management 	and
employer-employee 	relations within the public
school 	systems 	in the 	State of California by
The 	real 	issue 	in this 	case 	is 	the Board's 	ability to
process 	representational matters 	in a 	responsive 	fashion to
insure 	timely and meaningful 	elections. 	I 	share 	the Association's
concern regarding the dynamics 	of an election, 	particularly 	in a
school 	setting. 	In recognition of those dynamics, 	years 	ago,
PERB 	established that representational 	matters 	are 	cases 	of 	the
highest priority and therefore, 	those cases 	must be handled
expeditiously. 	Undoubtedly, 	employee free choice 	is best 	insured
by 	the 	expeditious 	handling 	of 	representational 	disputes 	and 	the
subsequent direction of 	a prompt election. 	For that reason, 	the
Board 	itself will 	continue 	to 	endeavor to 	resolve 	the
representational 	cases 	in a more 	timely manner.
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providing 	a uniform basis 	for 	recognizing 	the
right of public 	school 	employees 	to 	join
organizations 	of their own choice, 	to be
represented by the 	organizations 	in their
professional 	and 	employment 	relationships
with public 	school 	employers, 	to 	select one
employee 	organization as 	the 	exclusive
representative of 	the 	employees 	in an
appropriate unit, 	and to afford 	certificated
employees 	a voice 	in the 	formulation of
educational policy.
(Emphasis 	added.)
-
Not 	only 	is 	free 	choice 	crucial 	to protecting the 	individual
rights bestowed by the 	statute, 	but 	it 	is 	also 	critical 	to 	stable
and 	efficient 	labor relations. 	For collective bargaining to
work, 	an 	exclusive 	representative 	must 	fairly 	and 	effectively
represent the 	interests 	of the members 	of 	the bargaining unit.
The 	best 	guarantee 	of 	such a 	result 	is 	the 	free and democratic
selection of 	such representatives 	by unit members 	in an
appropriate unit. 	(See 	Peralta Community College 	District 	(1987)
PERB Order No. 	Ad-164.) 	Under the 	statutory language of 	EERA,
the 	Board has 	broad discretion 	in determining 	appropriate
bargaining units. 	(See EERA section 3 54 5.) 	The Board's
jurisdiction to make bargaining unit determinations 	is 	at 	the
heart 	of 	the 	collective bargaining 	system. 	The 	size 	and
composition of 	the 	bargaining unit will 	directly 	affect 	the
structure 	and 	composition of 	the 	exclusive 	representative 	and 	the
issues 	that will 	be 	addressed 	in collective bargaining.
The 	EERA 	sets 	forth the procedures 	for conducting
representation 	elections, 	and determining 	appropriate 	bargaining
units. 	EERA section 3541.3(a) 	specifically empowers 	the Board
"[t]o determine 	in disputed cases, 	or otherwise approved,
appropriate 	units." 	EERA 	section 	3544.1 	permits 	an 	employee
14

organization and 	a public 	school 	employer to mutually agree 	on a
proposed bargaining unit, 	allowing the 	employer to grant
voluntary recognition to the 	employee 	organization. 	Where
voluntary recognition is 	not granted and the nature 	of 	the
proposed bargaining unit 	is 	in dispute, 	the Board must determine
the 	appropriateness 	of 	the proposed 	bargaining unit.
Specifically, 	EERA section 3545(a) 	provides:
*
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.
-1.1 4.4 AM
After determining an appropriate bargaining unit, 	the 	Board 	then
conducts 	an election pursuant to 	section 3544.7. 	Section
3544.7(a) provides, 	in pertinent part:
Upon receipt 	of 	a petition 	filed pursuant 	to
Section 3544.3 	or 3544.5, 	the board shall
conduct 	inquiries 	and 	investigations 	or hold
any hearings 	it deems 	necessary 	in order to
decide the questions raised by the petition. 	'
The 	determination of 	the board may be 	based
upon the 	evidence 	adduced 	in the 	inquiries,
investigations, 	or hearing. 	However, 	if the
board 	finds 	on the basis 	of 	the 	evidence 	that
a question of representation exists, 	or a
question of 	representation 	exists 	pursuant 	to
subdivision 	(a) 	or 	(b) 	of Section 3544.1, 	it
shall 	order that 	an 	election be 	conducted by
secret ballot 	and 	it 	shall 	certify the
results 	of 	the 	election on the basis 	of which
ballot 	choice 	received 	a 	majority of 	the
valid votes 	cast.
Although 	EERA does 	not 	expressly prohibit 	the 	Board 	from
ordering 	an election prior to 	a 	final 	Board decision regarding
the appropriateness 	of a bargaining unit, 	it is 	clear that the
15

EERA presumes 	that 	in disputed cases, 	the Board will 	issue a
final 	Board decision regarding 	the 	appropriateness 	of 	a
bargaining unit prior to 	ordering 	an election. 	This 	power 	is
fairly 	implied 	from EERA, 	because 	the determination of 	an
appropriate 	bargaining 	unit prior 	to 	conducting an 	election 	is
administratively 	efficient and 	furthers 	the purposes 	of 	EERA.
Such 	implied 	statutory power 	has 	been 	established 	under 	PERB
case 	law. 	In Washington Unified School 	District 	(1985) 	PERB
Decision No. 	549, 	the Board 	found that the 	lack of 	specific
authority 	for 	an 	administrative 	law 	judge's 	sua 	sponte 	dismissal
of 	a 	complaint was 	not 	fatal 	to 	the 	administrative 	law 	judge's
actions 	under the 	circumstances. 	The 	Board relied upon Rich
Vision Centers, 	Inc. 	v. 	Board of Medical Examiners 	(1983) 	144
Cal.App.3d 	110, 	where the court held that, 	although no 	statute
expressly 	authorized the 	Board 	of 	Medical 	Examiners 	to 	settle
licensing disputes, 	the Board did possess 	such power. 	In
reaching this 	conclusion, 	the court 	stated:
Administrative 	agencies 	only have 	the power
conferred 	upon them by 	statute 	and an act 	in
excess of these powers 	is void. 	[Citations
omitted.] 	However, 	an agency's powers are
not 	limited to 	those 	expressly 	granted 	in the
legislation; 	rather, 	"[i]t is well settled in
this 	state that 	[administrative] 	officials
may 	exercise 	such additional powers 	as 	are
necessary 	for 	the 	due 	and 	efficient
administration 	of 	powers 	expressly granted 	by
statute, 	or as 	may 	fairly be 	implied 	from the
statute granting the powers." 	[Citations
omitted.]
(Id. 	at p. 	114, 	emphasis in original.)
-" . . . 	In this 	case, 	the Board's determination of an appropriate
bargaining unit prior to ordering an election 	is 	a power
16

necessary 	for 	administrative 	efficiency 	and 	furtherance 	of 	EERA's
purposes 	and policies.
Consistent with EERA, 	PERB regulations 	require that a 	final
Board decision be 	issued before 	a 	representation election 	is
conducted, 	unless 	the parties 	mutually agree upon an appropriate
unit and election. 	Specifically, 	PERB Regulation 33460 provides:
Elections 	in Consent Units. 	At any time
prior to a 	final decision of 	the Board
regarding an appropriate unit, 	the parties
may mutually agree 	upon an appropriate 	unit
and request the 	Board to 	conduct 	a 	consent
election. 	The 	conduct of any election in a
consent 	unit 	should 	not 	be 	interpreted 	to
mean that 	the 	Board would 	find 	the unit 	in
question to be 	an appropriate unit 	in a
disputed 	case.
It 	should be noted, 	in adopting PERB regulations, 	it is not
within the 	Board's 	authority 	to 	adopt 	rules 	and regulations 	which
are 	inconsistent with the 	expressed 	language of 	the 	statute.
(Apple Valley Unified School 	District 	(1990) 	PERB Order No.
Ad-209; 	Cadiz v. 	Agricultura	- 	l Labor Relations Board 	(1979) 	92
Cal.App.3d 365, 	371-372; 	Service Employees International Union v.
City of 	Santa Barbara 	(1981) 	125 Cal.App.3d 459, 	467-468.)
Pursuant to EERA's 	statutory 	scheme, 	PERB regulations 	evidence
the 	requirement that a 	final 	decision be 	issued before 	a
representation election 	is 	conducted. 	(See 	PERB Regulations
33440, 	33450, 	33460, 	and 33470.) 	Based upon the language of EERA
and PERB 	regulations, 	the 	necessity 	for determining the
appropriate 	bargaining unit 	before 	ordering 	an 	election 	is
crucial 	to protecting the public 	school 	employees' 	rights 	under
section 	3540 	of EERA. 	Such rights 	include the public 	school
17

employees' 	selection of one employee organization as 	the
exclusive representative 	of 	the 	employees 	in an appropriate 	unit,
Accordingly, 	I 	affirm the 	regional 	director's proposed
decision and 	order 	finding 	an 	appropriate 	unit 	and 	ordering 	that
an 	election be 	conducted.
18

APPENDIX 	NOTICE 	OF 	DECISION
POSTED BY ORDER OP 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
CASE: 	PALOMAR COMMUNITY COLLEGE 	DISTRICT
Case No. 	LA-R-980
PERB Decision No. 	947
July 14, 	1992
EMPLOYER: 	Palomar Community College 	District
1140 West Mission Road
San Marcos, 	CA 	92069-1487
(619) 	744-1150
EMPLOYEE 	ORGANIZATION
PARTY 	TO 	PROCEEDING:
Palomar 	College 	Faculty Association/CCA/CTA/NEA
1140 West Mission Road
San Marcos, 	CA 	92069-1487
(619) 	744-1150
FINDINGS:
The 	Board 	finds 	the 	following unit 	is 	appropriate 	for
meeting 	and 	negotiating, 	provided an 	employee 	organization
becomes the exclusive representative: 	'
Unit Title: 	Faculty
Shall 	Include: 	All faculty 	(full-time, 	part-time, 	adjunct,
contract or temporary), counselors, coaches, librarians,
child 	care 	center teachers, 	department 	chairpersons 	and
those directors 	not 	specifically 	excluded.
Shall Exclude: 	Classified employees, 	and the
superintendent/president, 	assistant 	superintendents/vice
presidents, 	deans, 	administrative interns, 	and the director,
athletics; 	director, 	institutional research and planning;
special assistant to the president; 	director, 	student
activities; 	director, 	library/media center; 	facility
planner; 	director, 	Escondido education center/extension
education; 	director, health services; 	director, 	extended
opportunity programs 	and services; 	director, 	extended day
services; 	director, 	auxiliary services; director,
facilities; 	director, 	human resources and affirmative
action; director, business services; 	director, 	financial
aid; 	contracts/special projects manager; 	director, 	disabled
. . . .

-14 25 0
student programs and services; 	director, 	matriculation;
director, 	Camp Pendleton/Fallbrook/Ramona education 	centers;
director, placement services; 	director, vocational programs;
director, admissions, records, and veterans' 	services;
director, 	Mt. 	Carmel/Poway education centers; 	director,
fiscal services; 	director, 	public information; 	director,
regional occupational programs; 	director, 	instructional
operations and services; 	director, 	information systems;
director, 	title III; 	chief advancement officer; 	director,
child development 	instruction and 	services 	center; 	and
director, 	public 	services program.
Pursuant to PERB Regulation section 33450, 	within 	10 days
following 	issuance of this 	Notice of 	Decision, 	the District 	shall
post 	on all 	employee bulletin boards 	in 	each 	facility of 	the
employer 	in which members 	of 	the unit described 	in the decision
are employed, 	a copy of the Notice of Decision. 	The Notice of
Decision 	shall 	remain posted 	for a minimum of 	15 workdays.
Reasonable 	steps 	shall 	be taken to 	ensure that the Notice 	is 	not
reduced 	in size, 	altered, 	defaced or covered with any other
material.
The 	regional 	director 	shall 	conduct 	an election at 	the 	end•
of 	the posting period to determine whether the 	employees 	in the
appropriate 	unit wish to be 	represented by 	the 	Palomar College
Faculty Association/CCA/CTA/NEA, 	unless 	the District 	chooses 	to
grant 	voluntary recognition to 	the 	employee 	organization.
Dated: 	PALOMAR 	COMMUNITY 	COLLEGE
DISTRICT
By
Authorized 	Agent
THIS 	IS AN OFFICIAL 	NOTICE. 	IT MUST REMAIN POSTED 	FOR A MINIMUM
OF 	FIFTEEN 	(15) 	WORKDAYS. 	REASONABLE 	STEPS 	SHALL 	BE 	TAKEN TO
ENSURE THAT THIS NOTICE 	IS NOT REDUCED IN SIZE, 	ALTERED, 	DEFACED
OR 	COVERED 	WITH 	ANY 	OTHER 	MATERIAL.
N	2

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PALOMAR 	COMMUNITY 	COLLEGE
DISTRICT,
Employer,
and
PALOMAR COLLEGE 	FACULTY
ASSOCIATION/CCA/CTA/NEA,
Employee 	O r g a n i z a t i o n .
)
)
)
) 	Representation
Case No. 	LA-R-980
PROPOSED 	DECISION
( 1 / 2 / 9 2 )
)
)
)
)
)
)
)
Appearances: 	Littler, 	Mendelson, 	Fastiff & Tichy, 	by Richard J.
Currier, 	C. 	Anne Hudson and Nicholas T. 	Calderon, Attorneys, 	for
Palomar Community College District; 	Reich, 	Adell & Crost, 	by
Glenn Rothner and Laurence S. 	Zakson, 	Attorneys, 	for Palomar
College 	Faculty 	Association/CCA/CTA/NEA.
Before Les Chisholm, 	Hearing Officer.
PROCEDURAL 	HISTORY
On April 	9, 	19911 the 	Palomar College 	Faculty Association/
CCA/CTA/NEA 	(Petitioner) 	filed a petition with the 	Los 	Angeles
Regional 	Office 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	seeking to represent a unit of 	full-time 	faculty,
counselors 	and 	librarians 	of 	the 	Palomar Community 	College
District 	(District). 	Notice of 	the petition was posted by the
District on April 	19. 	On May 	10, 	PERB 	issued a determination
indicating 	that 	the 	Petitioner 	had 	submitted 	evidence 	of 	majority
support 	in the unit 	claimed as 	appropriate, 	and that 	no 	timely
intervention had been 	filed.
__________________ )
d a t e s 	r e f e r e n c e d 	h e r e i n 	a r e 	i n 	t h e 	c a l e n d a r 	y e a r 	1 9 9 1 ,
unless specified otherwise.
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.

The District, 	by letter dated May 	14, 	declined to grant
voluntary 	recognition and 	contested 	the 	appropriateness 	of 	the
unit 	described by 	the Petitioner. 	The 	District 	specifically
objected 	to 	the 	exclusion of 	part-time 	and 	hourly 	academic
employees 	and 	child 	care 	center 	employees 	from 	the proposed 	unit,
and 	also 	contended 	that 	the 	proposed unit 	inappropriately 	failed
to 	exclude all management, 	supervisory and confidential
employees. 	The 	District 	submitted that 	an appropriate 	unit 	must
exclude the superintendent/president, 	vice-presidents, 	directors,
deans, 	administrative interns, 	and department chairpersons.
By 	letter dated May 	16, 	Petitioner requested 	PERB 	to 	conduct
an investigation pursuant to PERB regulation 33230(a)(1).2 A
settlement 	conference was 	held with the parties 	on July 	24, 	but
'no 	agreement was 	reached. 	A hearing was 	then conducted by 	the
undersigned on September 	19 	and 20, 	and October 21 	and 22.
2PERB's 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 	et 	seq. 	Section 33230(a)(1)
provides 	as 	follows:
(a) 	Not 	later than 	90 days 	following
the date 	an employer decision 	is 	filed 	or
required 	to be 	filed with 	the 	regional
office, 	whichever occurs 	first, 	an employee
organization may 	file 	a petition pursuant 	to
Government Code 	section 3544.5(b) 	or 	(c)
requesting 	the 	Board 	to 	investigate 	and
decide whether 	employees 	have 	selected 	or
wish 	to 	select 	an 	exclusive 	representative 	or
to determine the appropriateness 	of 	a unit.
The petition 	shall 	allege 	one 	of 	the
following grounds:
(1) 	The 	employer has 	filed a
decision 	not 	to 	recognize 	the 	employee
organization, 	but did not request a
Board 	investigation.
N	2

On the 	first day of hearing, 	Petitioner moved 	to 	amend 	its
petition to 	include 	"all 	faculty, 	including those 	employed at 	the
child care 	center." 	By 	letter dated October 7, 	the parties were
advised 	that 	PERB 	had determined 	that 	the 	Petitioner had
submitted evidence 	of majority 	support 	in the 	amended unit. 	On
October 	21, 	the undersigned granted the motion to amend, 	pursuant
to PERB regulation 331OO(c).3 On October 22, 	the parties were
advised 	on the 	record that posting 	of 	the 	amendment would 	not 	be
required 	in this 	case.
Prior to 	the 	conclusion of 	the hearing, 	the parties 	entered
into 	stipulations 	by which 	they 	agreed 	the 	following positions
should be 	excluded 	from 	the bargaining unit: 	director,
institutional 	research 	and planning; 	special 	assistant 	to 	the
president; 	director, 	student activities; 	director, 	library/media
3PERB regulation 3 3100 provides, 	in relevant part, 	as
follows:
33100. 	Amendment of Request or Intervention:
Posting Amendments.
(c) 	Amendments 	to correct technical
errors, 	add or delete 	job classifications 	or
positions 	from 	a party's 	proposed 	unit which
are requested 	after 	the 	issuance 	of 	the
notice of 	hearing are 	subject to 	approval 	by
the 	Board agent 	assigned to the hearing. 	The
Board 	agent 	may 	grant 	the 	requested
amendment, 	if 	it will not unduly impede the
hearing, 	and if 	sufficient proof of 	support
is 	evidenced to 	support any request 	for
addition of 	job classifications. 	Posting of
any 	such 	amendments 	shall 	be 	at 	the
discretion of 	the 	Board 	agent.
w	3

center; 	facility planner; 	director, 	Escondido education center/
extension education; 	director, 	health services; 	director,
extended opportunity programs 	and 	services; 	director, 	extended
day services; 	director, 	auxiliary services; 	director, 	facilities;
director, 	human resources 	and affirmative action; 	director,
business 	services; 	director, 	financial aid; 	contracts/special
projects 	manager; 	director, 	disabled 	student programs 	and
services; 	director, matriculation; 	director, Camp Pendleton/
Fallbrook/Ramona education centers; 	director, 	placement 	services;
director, vocational programs; director, admissions, records, and
veterans' 	services; 	director, 	Mt. 	Carmel/Poway education centers;
director, 	fiscal services; 	director, 	public information;
director, 	regional occupational programs; 	director, 	instructional
operations and services; 	director, 	information systems; 	director,
title III; 	chief advancement officer; 	director, 	child development
instruction and 	services 	center; 	and director, 	public 	services
program.
The 	positions 	whose 	status 	remained 	in dispute 	included 	all
department 	chairpersons 	and the director of 	athletics; 	director,
art gallery; 	director, 	dental assisting; 	director, 	reading
services; 	director, 	allied health; 	director, planetarium; 	and
director, multi-cultural studies. 	(IV: 	93, 	14-23.)4
Timely 	briefs were 	filed by both parties 	and 	the 	case was
submitted 	for decision 	on December 	3.
4Cites 	to 	the 	reporter's 	transcript 	include 	the volume
number 	followed by the 	applicable page 	and 	line 	numbers.
4

POSITIONS 	OF 	THE 	PARTIES
Based on applicable 	law and precedent, 	Petitioner argues
that 	all 	positions 	in dispute 	in this 	matter are properly
included 	in the 	faculty unit. 	In addition, 	the Petitioner cites
the 	"community 	college 	tradition of 	collective 	decision-making,
the 	District's 	expressed policy of 	collegiality, 	and 	the
Legislature's intention 	. 	. 	. 	that participatory and collegial
decision-making becomes 	an integral 	a 	[sic] 	part of 	the 	community
college 	system. 	. . . " 	(Petitioner's 	Brief 	at p. 	2.)
In 	support of 	its position, 	Petitioner relies 	on testimonial
and documentary evidence which 	shows 	that: 	1) 	department 	chairs
are 	selected by the 	faculty 	in their department, 	not the
administration; 	2) 	department chairs 	are eligible to participate
in the Faculty Senate; 	3) 	department chairs 	lack authority to
resolve grievances 	or disputes, 	or to discipline their
colleagues; 	4) 	scheduling and assigning classes 	is 	accomplished
collegially, 	and the department chairs' 	role is ministerial;
5) 	department chairs' 	budget authority is ministerial or routine;
6) 	department 	chairs 	function in a 	collegial 	capacity 	in the
hiring and 	evaluation of 	full-time 	faculty, 	adjunct 	faculty and
classified 	staff; 	7) 	department chairs 	spend a 	significant amount
of 	time 	teaching and only 	a 	small 	amount 	of 	time 	supervising 	non-
unit 	employees.
. . . . . ....
Petitioner also 	argues 	that 	the hearing officer 	should
direct 	an 	election which would proceed 	irrespective 	of 	any
exceptions 	filed to the 	instant decision, 	with a 	challenged
55

ballot 	mechanism provided 	to 	handle 	any 	disputes 	over 	the
i n c l u s i o n 	o r 	e x c l u s i o n 	o f 	e m p l o y e e s . 5
The 	District 	argues 	for the 	exclusion of 	department
chairpersons 	and program directors 	from a 	unit which 	it 	concedes
is 	otherwise appropriate. 	The District 	contends 	that the record
"clearly 	establishes 	that 	all 	department 	chairs 	and 	directors 	at
issue 	are 	given 	supervisory 	authority 	over 	full-time 	faculty,
adjunct 	faculty 	and 	classified 	staff." 	(District's 	Brief 	at
p. 	1.)
As 	to 	adjunct 	faculty, 	the District 	cites 	evidence that 	the
department 	chairs 	and directors 	are 	responsible 	for hiring 	and
assigning classes 	to adjunct 	faculty, 	determining whether 	to
rehire 	them and being 	involved 	in 	their performance 	evaluation.
The 	District 	contends 	that 	department 	chairs 	and 	directors
exercise 	similar 	authority 	over 	classified 	staff.
The 	District 	also 	argues 	that department 	chairs 	and
directors 	exercise 	general 	supervisory 	authority 	over 	their
respective department or program, 	including 	such matters 	as
assigning classes, 	setting class times 	and locations, 	and 	setting
up 	and 	monitoring 	the 	department/program budget.
•
The 	District 	emphasizes 	that 	department 	chairs 	and directors
are 	in a 	"position of 	allegiance 	to 	the 	District because 	they are
paid a 	stipend, 	are given release time to accomplish their
supervisory 	duties 	and 	are 	given discretion 	and 	independent
5The 	Petitioner 	notes 	that 	a 	challenged ballot 	mechanism
need 	involve only 	30 	to 	32 	employees, 	in a voting unit of 	1,000
or more 	employees.
66

judgment 	as 	to 	the managerial 	styles 	and methods 	they use 	to
accomplish their supervisory duties." 	(id., 	at pp. 	3-4.) 	The
District dismisses 	as unimportant, 	under Board precedent,
evidence 	concerning 	collegial-style 	decision-making 	and whether
the 	employees 	supervised are 	non-unit 	employees.
On procedural 	issues, 	the District 	contends 	that the hearing
officer 	lacks 	authority 	to 	order 	an 	election prior 	to 	issuance 	of
a 	final decision in this 	matter, 	and argues 	that the hearing
officer 	erred 	in not 	ordering posting 	of 	the 	amendment 	to 	the
petition 	granted 	during 	the 	hearing.
FINDINGS 	OF 	FACT
Palomar College, 	with a 	student enrollment 	in excess 	of
25,000, 	serves 	a population of approximately 500,000 	in northern
San Diego County. 	The main campus 	is 	located in San Marcos, 	but
courses 	are 	also offered at nine 	off-campus 	education centers 	and
nearly 	100 other locations, 	including numerous high 	schools, 	rest
homes, 	and shopping malls 	and centers.
The main campus 	includes more than 50 buildings, 	a theater,
art gallery, 	planetarium, 	library, 	student union, 	children's
development 	center 	and 	laboratories.
The 	District 	employs 	approximately 	350 	classified 	employees,
and 	an 	established bargaining unit 	of 	classified 	employees 	is
represented 	by 	the 	Council 	of 	Classified 	Employees/AFT 	Local
4522.
The 	District 	currently 	employs 	fewer 	than 	300 	full-time
faculty, 	approximately 800 	adjunct 	faculty and 	5 	child care
7

center 	teachers.6 "Full-time" 	faculty may actually be 	employed
less 	than 	100%-time; 	adjunct 	faculty are 	limited to 	no more 	than
60% 	of 	a 	full-time 	load 	(and thus 	are often referred to 	as 	part-
time) .
The 	District 	is 	governed 	by 	a 	five-member 	Governing 	Board,
which delegates 	authority to 	the 	superintendent/president. 	The
superintendent/president 	is 	assisted 	by 	three 	assistant
superintendents/vice presidents, 	who are responsible 	for
instruction, 	student 	services, 	and 	finance and administrative
services. 	The deans 	of arts and languages; 	human arts 	and
sciences; 	mathematics and the natural and health 	sciences; 	media,
business 	and community 	services; 	and vocational 	technology, 	and
the director, 	library/media 	center, 	report to the vice president
for 	instruction. 	The dean of 	counseling guidance 	and 	career
development, 	the dean of 	student 	support 	services 	and the
director of 	student 	activities 	report 	to 	the vice president 	for
student 	services.
. ... "
The 	organizational 	units 	headed by 	these deans 	and 	directors
include 	various 	academic 	and 	student 	support departments 	and
programs. 	Academic 	departments 	are 	generally headed by 	a
6The term 	"faculty", 	as used herein, 	refers 	unless 	otherwise
specified 	to 	employment 	categories 	including probationary 	faculty
(contract), 	tenured faculty 	(regular), 	adjunct faculty
(instructors), 	librarians, 	counselors and child care center
teachers. 	The 	term 	"faculty" 	also generally 	includes 	department
chairpersons 	and directors, 	except directors who are 	100%
educational administrators. 	The parties' 	agreed-upon exclusions
applied to 	all 	of 	the 	100% 	educational 	administrators.
8

department 	chairperson, 	and academic programs 	by a director.77
For purposes 	of this decision, 	the directors whose 	status 	is 	in
dispute 	are 	considered 	the 	functional 	equivalent 	of 	department
chairpersons.8 Department 	chairpersons/directors 	are 	most 	often
elected 	by 	faculty 	in the department, 	or 	selected by 	some 	other
procedure 	(e.g., 	rotation) 	decided upon by the 	faculty. 	Only
full-time 	(or 	contract) 	faculty members 	are 	eligible 	to be a
department 	chairperson/director. 	Each program and department 	is
required 	to 	adopt 	a procedure which 	is 	kept on 	file 	in the vice
president's 	office. 	Procedures 	must also provide 	for a recall
mechanism, 	and the term of office 	is 	two years. 	There 	is 	no
evidence 	that 	the 	District 	administration has 	to 	approve 	the
selection of 	a 	chairperson or director, 	or that the
administration may remove 	a 	chairperson/director. 	The 	only
exception to 	this 	general 	rule concerns 	the director of
athletics; 	the department recommends 	two 	candidates 	to the
director 	of 	student 	activities 	and 	the 	vice president 	for 	student
services 	for final 	selection of 	a 	candidate.
9
7The 	"Palomar College Governance 	Structure" 	specifies 	that
"[t]his 	plan does 	not address 	or 	interfere with department/
division organization or managerial 	structure. 	(Petitioner's
Exhibit No. 	8, 	Section II, 	at p. 	1.)
8While 	there 	is 	evidence 	in the record to 	support 	the view
that 	directors 	have 	somewhat 	less 	authority 	and 	responsibility,
any difference 	is 	held 	to 	lack 	significance 	to 	the 	instant
decision. 	The 	confusion 	is 	created 	in part by the District's 	use
of 	the term 	"director" 	to denote quite different 	levels 	of
authority. 	For example, 	the math center director reports 	to 	the
chairperson of 	the mathematics 	department, 	while the 	library
technology 	department 	chairperson reports 	to 	the 	director,
library/media 	center, 	and the director of athletics 	reports 	to
the director of 	student activities.

The 	District has 	a 	Faculty Senate, 	in which department
chairpersons/directors 	are 	eligible to 	-- 	and do 	-- 	participate.
There are, 	currently, 	individuals who 	serve both as 	a department
chairperson or director and 	in the 	Senate. 	Deans 	are not
eligible 	to participate 	in the 	Faculty Senate.9
The 	Faculty 	Senate's 	duties 	include 	considering problems,
'procedures 	and policies 	in 	such areas 	as 	academic 	standards, 	the
"status 	and morale of the professional 	teaching 	staff," 	health
and welfare issues 	such as retirement, 	leave, 	salary and
benefits,10 making recommendations 	in 	such areas, 	and acting as
the 	liaison 	for 	the 	faculty with 	the 	administration 	and Governing
Board. 	(Petitioner's 	Exhibit No. 	4.)
Department 	chairpersons/directors 	are 	compensated 	both 	by 	a
salary 	stipend 	(8% 	for most)1111 and 	"assigned time." 	Assigned
time 	(sometimes 	referred 	to 	as 	released 	time 	or reassigned 	time)
is 	intended 	to provide 	compensated 	time 	from other 	instructional
duties 	in recognition of 	the 	time 	needed 	for the 	various
administrative 	and 	supervisory duties 	that 	go with 	the 	position.
The 	amount of 	assigned time varies 	from 0% 	to 	80%: 	12 positions
9The 	record 	is 	not 	clear on whether the deans 	are 	eligible
to participate 	in the Administrative Association, 	but 	it 	is 	clear
that 	department 	chairpersons/directors 	are 	not.
10One 	standing 	committee 	of 	the 	Faculty 	Senate 	is 	the 	Salary
and 	Benefits 	Committee.
n All department chairpersons 	receive 	8%, 	as 	do directors 	at
level 	3 	or 4. 	Directors at level 	1 	or 2 	receive no stipend. 	A
director at 	level 	5 would receive 	10%. 	The only directors 	at
issue receiving other than 8% 	are the director, 	planetarium;
director, 	reading 	services 	and director, 	dental assisting 	(all at
0%) .
10

receive 20%; 	13 receive 40%; 	2 - 0%; 	2 - 60%; 	1 - 25%; 	1 - 66%
and 	1 	- 	80%. 	The director of athletics 	is the only position
currently at 80% assigned time. 	(District's Exhibit No. 	4.)1 2
The 	"Behavioral 	Sciences 	Departmental 	Structure 	and 	Operation"
policy 	allows 	for 	the 	sharing 	of 	the 	assigned 	time provided 	to
the 	department 	chairperson with 	other department 	members 	who
perform duties 	which would 	otherwise 	be 	performed 	by 	the
chairperson. 	(Petitioner's Exhibit No. 	10.)
According 	to 	District 	Governing 	Board policy, 	department
chairpersons/directors 	have 	certain responsibilities, 	the 	first
listed 	of which 	is 	to 	"[r]epresent 	department 	faculty 	to 	the
administration." 	(Petitioner's Exhibit No. 	8, 	Section I, 	at
p. 	58.) 	They are also responsible 	for coordinating curricula,
approving texts, 	screening budget 	requests 	and approving
requisitions, 	maintaining current 	syllabi, 	preparing job
descriptions 	for 	new positions 	(with 	the 	dean and vice
president), 	providing support 	for compliance with the District's
affirmative 	action program, 	arranging 	for 	screening and
interviewing of 	job candidates, 	participating 	in the 	evaluation
and 	improvement of 	instruction, 	transmitting evaluations 	of
12The 	District 	also 	introduced 	documentary 	and 	testimonial
evidence 	concerning various 	requests 	for 	increases 	in assigned
time, 	and a 	general 	recommendation made by the District's 	Staff
Priorities Committee, 	to increase it by 20% 	for all affected
positions. 	For purposes 	of this decision, 	and to the extent that
specific percentages 	of 	assigned time 	are given weight, 	the
actual percentages 	of 	assigned time 	in effect 	are what 	the
hearing 	officer 	considers 	relevant.
11

instructors 	to 	the dean and vice president, 	and accepting other
responsibilities 	from the dean 	(Ibid. )
It was 	also 	established that 	the department 	chairpersons/
directors 	are 	charged by 	the 	administration with 	responsibilities
in 	such areas 	as 	the District's 	sexual harassment policy, 	safety
and health, 	evaluation of 	classified 	staff, 	compliance with the
collective 	bargaining 	agreement 	in 	the 	classified bargaining
unit, 	overtime and attendance policies, 	drug and alcohol
awareness, 	and the hiring of 	substitute 	and 	short-term
(classified) 	employees. 	Training in these areas has been
provided 	for and offered to managers 	and 	supervisors, 	including
department chairpersons/directors, 	but attendance at the 	training
has 	only 	once 	been required.
Department 	chairpersons/directors 	have 	never been 	required
to 	have 	or 	obtain an administrator's 	or 	supervisory 	credential
(or any functional equivalent). 	The District, 	through various
policies 	and procedures, 	encourages 	and/or requires 	the use of
collaborative decision-making and collegiality. 	(See, 	for
example, 	II: 	163, 	15-20; 	166, 	1-6; 	and Petitioner's Exhibits
Nos. 	1 and 5.)
Testimony was 	given by the department 	chairpersons 	of
English as a 	second language, 	mathematics, 	and child development;
a 	former 	chairperson of 	the physics 	and 	engineering 	department;
the directors 	of 	library/media 	center, 	dental 	assisting and
athletics; 	the deans of the arts 	and languages division, 	and the
mathematics 	and the 	natural 	and health 	sciences 	division; 	and the
12

director of 	human resources 	and affirmative 	action. 	The parties
stipulated 	that 	these witnesses 	testimon	i. . . 	y was 	representative 	of
any 	testimony 	that 	might 	be 	given 	on the 	subject 	of 	the 	duties
and 	responsibilities 	of 	department 	chairpersons 	and directors.
(IV: 	95, 	1-19; 	109, 	18-28; 	and 	110, 	1-3.)
Consistent with 	formal policy, 	department 	chairpersons/
directors 	most 	often 	self-identify as 	"facilitators" 	and/or
advocates 	for their department, 	and not as 	representatives 	of 	the
administration to 	the 	faculty. 	Among those testifying, 	only the
director 	of 	athletics 	gave 	significantly different 	testimony 	in
this 	regard, 	and even he 	characterized his 	role as 	"liaison" 	for
both the coaches and the administration. 	(IV: 	53, 	20-26. )
The 	department 	chairpersons/directors 	exercise 	no 	real
authority over other 	full-time 	faculty. 	In hiring, 	interviewing
is 	conducted 	and 	the 	effective 	recommendation made 	by 	a 	selection
committee which does 	not 	necessarily 	include the 	chairperson, 	and
the 	chairperson has 	no 	special 	status 	even if 	a participant. 	The
tenure 	evaluation process 	of 	a probationary 	faculty member 	(a
four-year process) 	is 	accomplished by a 	five-person committee,
which 	includes 	the 	department 	chairperson or designee.13
- -
(Petitioner's 	Exhibit No. 	6.) 	The department chairpersons/
directors 	have 	no 	authority 	to 	adjust 	grievances 	for 	full-time 	or
adjunct 	faculty. 	To 	the 	extent 	the 	chairperson gets 	involved 	in
conflict or dispute resolution, 	the role 	is 	dependent more on
. .
13If 	a department chairperson does 	serve on a 	committee,
that 	individual 	continues 	on the 	committee 	even 	if 	no 	longer 	the
chairperson.
13

seniority or personality than formal position. 	(See, 	e.g., 	I:
.161, 13-16.)
The hiring of adjunct 	faculty, 	also, 	is accomplished by a
committee process. 	Formal policy requires 	that 	screening 	and
selection 	involve 	the department 	chairperson/director, 	discipline
expert, 	or designee and at 	least one other faculty member.
(District's 	Exhibit No. 	6.) 	While the department 	chairperson/
director most typically 	is 	involved, 	there 	is 	no 	evidence 	that
this 	individual 	carries 	any 	added 	authority 	over 	the 	final
selection decision, 	except that it 	is 	the department chairperson/
director who 	must 	complete 	the paperwork 	and 	sign the 	notice 	of
employment 	in order 	for 	final 	approval 	to be given by the
District. 	While 	there was 	testimony regarding a 	chairperson
acting alone to 	fill 	a vacancy 	in an emergency, 	there were also
instances 	cited 	of 	chairpersons 	who 	routinely defer 	to 	another
faculty member 	(especially where 	the department 	is 	multi-
disciplinary) .
Evaluation 	of 	adjunct 	faculty 	is 	performed by 	the 	department
chair 	or discipline 	designee 	or a 	designee 	appointed by 	the
-
tenure review coordinator. 	(Petitioner's 	Exhibit No. 	6 	at
p. 	20.) 	Testimony 	revealed varied practices 	by department
chairpersons/directors 	regarding 	evaluation 	of 	adjunct 	faculty,
with 	some 	doing 	first-hand 	observation and 	evaluation, 	and 	others
doing 	nothing more 	than reviewing 	the 	contents 	of 	a 	standardized
evaluation 	instrument with 	the 	individual 	(based 	on data
collection and/or observation conducted by others).
14

According 	to 	the 	"Handbook 	for Adjunct 	Faculty," 	an
instructor is 	to 	consult 	with 	the 	department 	chairperson/director
and division dean to decide whether 	a 	missed 	class 	should be
cancelled or made up. 	(District's Exhibit No. 	7 at p. 	32.) 	The
instructor's 	initial reporting 	is 	made, 	not to the designated
supervisor, 	but to the department 	secretary 	(a 	classified 	staff
employee), 	who is responsible for posting notice 	for the class
and preparing an absence 	form. 	(id., 	at p. 	33.)
Hiring of 	classified 	staff 	is 	also done by committee, 	and 	it
is 	up to the department chairperson/director what role, 	if any,
s/he will play 	in the process. 	Department 	chairpersons/directors
do 	generally 	give work assignments 	to 	classified 	staff,14
especially a department 	secretary, 	but 	so do other 	faculty
members. 	Department 	chairpersons/directors 	are 	responsible 	for
the 	probationary 	and performance 	evaluations 	of 	classified 	staff
in their department or program, 	but at 	least 	some do 	so with
extensive 	input 	from 	(or 	even collegially with) 	other 	faculty
members. 	While most 	classified 	staff 	evaluations will 	be
routinely approved by the dean, 	the dean's 	review can be 	and has
been on occasion more 	substantive than cursory. 	(II: 	125, 	1-4.)
Department 	chairpersons/directors 	are 	generally 	responsible 	for
. .
.. ....
14Exceptions 	would 	clearly 	include 	the 	directors 	of 	the 	art
gallery, 	multi-cultural 	studies 	and planetarium, 	where 	there 	are
currently 	no 	classified 	staff 	employed. 	(District's 	Exhibit
No. 	4.)
15

approval of 	such matters 	as 	overtime, 	vacation and other absences
requiring 	approval.1515
The 	contractual 	grievance procedure 	for 	classified 	staff
provides 	for a 	grievance to be 	taken to 	an employee's 	immediate
supervisor at 	step one and, 	in most 	instances, 	the department
chairperson/director would 	be 	considered 	to 	be 	the 	immediate
supervisor 	for this 	purpose. 	There was 	no evidence given,
however, 	to 	show any actual application of this process, 	nor any
other 	evidence 	to 	show what 	authority 	the department 	chairperson/
director would have 	to 	adjust 	a 	grievance.
While 	it 	is 	the department 	chairperson/director who 	signs
off 	on numerous 	other documents 	concerning 	the 	operation of 	the
department/program, 	including 	such matters 	as 	budget requests,
requisitions, 	class schedules, 	textbooks, 	and class assignments,
'the 	record 	is 	replete with 	examples 	of 	these 	functions 	being
performed within 	specific 	guidelines 	and/or 	based 	on 	a 	collegial
discussion and department decision. 	Class 	schedules 	is 	another
area where 	the dean's 	review of 	the department 	chairperson/
director's 	"decision" 	is 	neither cursory or routine, 	and where
the 	department 	chairperson/director 	is 	on occasion 	overruled.
(III: 105, 1-15.)
Where 	department 	chairpersons/directors 	have 	leeway 	under
District policies, 	they tend to act only on the basis 	of 	a
15The dean's 	approval 	is 	also 	required 	for overtime before
it 	is worked. 	One absence 	form used 	(the 	"Academic Absence
Report") 	has 	signature 	lines 	for the employee and the vice
president, 	but 	not the department 	chairperson or director 	(or
dean). 	(Petitioner's Exhibit No. 	11.)
16

consensus 	decision; 	where 	they 	act 	unilaterally, 	it 	tends 	to 	be
within 	such 	limited 	parameter	. . s 	that 	the 	decision 	is 	more
ministerial 	and 	routine 	than 	an 	exercise 	of 	real 	authority 	over
the department. 	Again, 	in each 	case, 	the department
chairperson/director 	functions 	within 	a 	role 	definition 	(both 	in
policy 	and practice) 	of 	acting 	as 	a 	representative 	of 	the
department. 	One 	exception 	to 	this 	general 	finding 	involves 	the
director 	of 	athletics, 	who 	testified 	that 	he 	could 	interpret 	some
District 	rules 	for 	application 	in 	his 	area, 	and 	that 	he 	has 	acted
unilaterally 	on 	some 	occasions 	to 	order 	equipment 	and 	on 	issues
concerning non-faculty 	staffing. 	(III: 	54, 	15-19 	and 	55, 	21-
26. )
LEGAL 	ISSUES
1) 	Is 	a unit 	of 	all 	faculty, 	excluding only managerial,
supervisory 	and 	confidential 	employees, 	an 	appropriate 	bargaining
unit?
2) 	Should 	department 	chairpersons 	and 	the 	positions 	of
director of athletics; 	director, 	art gallery; 	director, 	dental
assisting; 	director, 	reading 	services; 	director, 	allied health;
director, 	planetarium; 	and director, 	multi-cultural 	studies 	be
excluded 	from 	the 	unit 	as 	supervisory 	employees?
3) 	Should 	the 	amended 	petition 	be 	ordered 	posted?
4) 	Can 	the 	hearing 	officer 	order 	that 	an 	election 	be
conducted 	irrespective 	of 	any 	exceptions 	to 	this 	decision?
17

DISCUSSION
U n i t 	A p p r o p r i a t e n e s s
The 	statutory 	criteria 	relevant 	to 	this 	case 	are 	set 	forth
in the Educational Employment Relations Act 	(EERA)16 at 	section
3545, 	subsections 	(a) 	and 	(b)(l):
(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.
(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.
In Peralta Community College District 	(1978) 	PERB Decision No.
77, 	the Board determined that these provisions, 	read together,
establish 	a 	rebuttable presumption 	that 	all 	classroom 	teachers
(or 	faculty) 	should be placed 	in a 	single bargaining unit. 	In
this 	case, 	neither party seeks to rebut the presumption, 	and the
record 	supports 	a 	finding that 	a unit 	including all 	faculty 	is 	an
appropriate 	bargaining unit.
16The 	EERA 	is 	codified at Government Code 	section 	3540 	et
seq. 	All 	sections 	referenced, 	unless otherwise noted, 	are to the
Government Code.
18

Supervisory 	Designation 	of 	Department 	Chairpersons 	and 	Directors
The EERA defines; in section 3540.1, 	subsection (m), 	a
"supervisory employee" 	as
any employee, 	regardless 	of 	job description,
having authority 	in 	the 	interest 	of 	the
employer to hire, 	transfer, 	suspend, 	lay off,
recall, promote, discharge, assign, reward,
or discipline other employees, 	or the
responsibility 	to 	assign work to 	and direct
them, 	or to adjust their grievances, 	or
effectively recommend such action, 	if, 	in
connection with the 	foregoing 	functions, 	the
exercise of that authority is 	not of 	a merely
routine or clerical nature, 	but requires 	the
use 	of 	independent 	judgment.
'These various 	indicia of 	supervisory 	status 	are 	to be 	evaluated
in the disjunctive. 	The 	independent 	and 	effective 	exercise 	of
any 	one 	of 	the 	criteria 	is 	sufficient to 	establish 	supervisory
status under 	section 	3540.l(m). 	(Sweetwater Union High School
District 	(1976) 	EERB17 Decision No. 	4; 	Glendale Community College
District 	(1979) 	PERB Decision No. 	88.) 	"It is 	the authority to
perform 	or 	effectively recommend 	the 	functions 	enumerated 	in
section 3540.l(m), 	and not the frequency of their exercise, 	which
determines 	the 	supervisory 	status 	of 	employees." 	(Berkeley
Unified School District 	(1979) 	PERB Decision No. 	101; 	footnote
omitted.)
The Board has held, 	however, 	that this 	"definition as
applied 	to 	certificated 	community 	college 	employees 	must 	be
viewed 	in 	light 	of 	long-standing 	traditions 	of 	collegiality 	and
shared 	authority within 	institutions 	of 	higher 	education." 	(Los
17Prior to 	1978, 	PERB was 	known as 	the Educational
Employment Relations Board 	(EERB).
19

Rios Community College District 	(1977) 	EERB Decision No. 	18;
footnote omitted. )
Department 	chairpersons 	were 	held 	to be 	supervisors 	in 	Los-
Rios 	based 	on 	findings 	that 	their 	allegiance was 	with 	the
administration, 	that 	they 	exercised 	"substantial 	control 	over
critical 	aspects 	of 	faculty teaching responsibilities," 	and 	their
ineligibility to participate 	in the 	faculty 	senate. 	(Ibid.) 	The
"allegiance" 	finding was 	premised on both the payment 	of 	a
"substantial 	stipend" 	and the 	chairpersons' 	selection by the
administration. 	(Ibid.)
In Monterey Peninsula Community College District 	(1978) 	PERB
Decision No. 	78, 	division chairpersons were not excluded from the
bargaining unit. 	The Board 	relied here 	on 	findings 	that 	the
chairpersons 	were 	selected 	by 	faculty 	and 	confirmed 	by 	the
administration; 	could be 	removed by the 	faculty or
administration; 	were 	eligible 	for the 	faculty 	senate; 	and did not
"exercise 	independent 	effective 	control 	of 	supervisory 	functions
over 	the 	faculty." 	(Ibid.) 	The 	Board noted that 	supervisory
functions were 	generally of 	a 	routine 	nature or conducted
collegially, 	and 	stated that 	the 	"fact 	that 	chairpersons
supervise 	classified personnel 	in 	their daily 	activities 	does
not" 	support 	their exclusion from a 	faculty unit. 	(Ibid.)
Department chairpersons, 	despite the 	fact that a majority
carried an 80% 	teaching 	load, 	were 	found to be 	supervisors 	in
Hartnell Community College District 	(1979) 	PERB Decision No. 	81.
This 	conclusion was 	based 	on 	findings 	that 	"chairpersons 	schedule
20

both 	full- 	and part-time 	faculty class 	assignments, 	effectively
determine who 	shall be hired to 	fill 	a part-time position, 	and
discipline 	faculty members." 	(Ibid.)
In Glendale Community College 	District 	(1979) 	PERB 	Decision
No. 	88, 	the Board held that the division chairpersons were
appropriately 	included 	in the 	unit. 	The 	Board 	considered 	the
following 	factors 	in reaching this 	decision: 	chairpersons 	were
selected, 	and could be removed, 	by the 	faculty; 	viewed themselves
as 	representatives 	of the 	faculty; 	were paid only a minor
stipend; 	most had between 	20 	and 45% 	released time 	for their
chairperson duties; 	were 	eligible to participate 	in the 	faculty
senate; 	and their authority 	in other areas 	of 	supervisory
function, 	including over non-unit personnel, 	was 	not 	sufficient
to warrant their exclusion. 	(Ibid.)
Citing Washington Unified 	School 	District 	(1978) 	PERB
Decision No. 	56, 	the Board held 	"the 	sporadic 	exercise of
supervisory 	authority over 	non-unit personnel 	had 	not 	so 	allied
the 	employees 	with management 	that 	a 	generalized 	conflict 	of
interest was 	created." 	(Glendale 	Community 	College 	District,
supra. 	PERB Decision No. 	88.) 	The Board also considered whether
the 	supervision 	of 	classified personnel 	made 	classroom 	teachers
supervisors 	under 	EERA 	in 	Redlands 	Unified 	School 	District 	(1982)
PERB Decision No. 	235a. 	In Redlands 	the Board 	said that teachers
do 	perform 	supervisory 	functions 	as 	outlined by 	section 	3540.l(m)
but 	still 	found
. .'
that 	such 	authority was 	exercised
incidentally to 	the performance 	of 	teachers'
21

professional duties, 	and not as 	agents 	of the
employer. 	Thus, 	as a matter of law, we
[hold] 	teachers 	not to be supervisors of
aides, 	based upon our review and 	endorsement
of 	a well-established 	line 	of 	cases 	decided
by 	the National 	Labor Relations 	Board.
(Ibid.)
-
All 	of 	the decisions 	cited above were 	made prior to 	the
enactment of Education Code 	section 87610.1(e),18 which reads 	as
follows:
Any 	employees 	who 	are primarily 	engaged 	in
faculty or other bargaining unit duties, 	who
perform 	"supervisory" 	or 	"management" 	duties
incidental 	to 	their performance 	of primary
professional 	duties 	shall 	not be deemed
supervisory or managerial 	employees 	as 	those
terms 	are defined 	in 	section 	3540.1 	of 	the
Government Code, 	because of those duties.
These duties 	include, 	but are not 	limited to,
serving on hiring, 	selection, 	promotion,
evaluation, budget development, 	and
affirmative action committees, 	and making
effective 	recommendations 	in 	connection with
these activities. 	These 	employees whose
duties 	are 	substantially 	similar 	to those 	of
their 	fellow bargaining 	unit 	members 	shall
not 	be 	considered 	supervisory 	or 	management
employees.
The 	Board has 	not previously 	been 	called upon to 	interpret 	and
apply this 	language. 	Guidance is provided, 	however, 	by the
Board's 	past 	interpretations 	of 	similar 	language 	found 	in the
Ralph C. 	Dills Act 	(Dills Act) 	at 	section 3513(g).19 Under the
'" This 	section was 	adopted 	by 	the 	L e g i s l a t u r e 	in 	1 9 8 8 , 	b u t
did 	not 	take 	effect 	until 	July 	1, 	1991.
19Section	Section 	3513(g) 	d e f i n e s 	a 	"supervisory 	e m p l o y e e " 	as
m e a n i n g
. 	. 	. 	any 	i n d i v i d u a l , 	regardless 	of 	the 	job
d e s c r i p t i o n 	o r 	t i t l e , 	h a v i n g 	a u t h o r i t y , 	i n
the 	interest 	of 	the 	e m p l o y e r , 	to 	h i r e ,
t r a n s f e r , 	suspend, 	lay o f f , 	r e c a l l , 	p r o m o t e ,
1 9
22

Dills Act, 	if a purported 	supervisor meets 	at 	least one of the
statutory 	criteria, 	the claim of 	supervisory 	status 	must 	then be
tested 	against 	the 	substantial 	similarity 	requirement.
In applying this 	test, 	the 	Board has 	not relied upon
quantitative 	analysis 	or the 	rote 	application of percentages.
Instead, 	the 	Board has 	concluded that 	substantial 	similarity
occurs 	at 	"the point at which the 	employees' 	supervisory
obligations 	to 	the 	employer outweighs 	their 	entitlement 	to 	the
rights 	afforded 	rank-and-file 	employees." 	(Unit 	Determination
for the State of California 	(1980) 	PERB Decision No. 	ll0c-S.)
Where 	supervisory 	obligations 	exist 	to 	the 	degree 	that 	they
outweigh rights 	to 	organize under the Dills Act, 	an employee 	no
longer performs 	duties 	substantially 	similar to 	his/her
subordinates.
Under the EERA, 	of course, 	supervisors who are 	so designated
do not 	lose the right to organize, 	only the 	"right" 	to be
included 	in the 	same bargaining unit 	as 	those 	they 	supervise.
Education Code 	section 	87610.l(e) 	seems 	clearly 	intended 	to
minimize this 	occurrence, 	however, 	for community college 	faculty.
discharge, 	assign, 	reward, 	or discipline
other employees, 	or responsibility to direct
them, 	or to adjust their grievances, 	or
effectively to recommend this action, 	if, 	in
connection with the 	foregoing, 	the exercise
of 	this 	authority 	is 	not of a merely routine
or clerical nature, 	but requires the use of
independent 	judgment. 	Employees whose duties
are 	substantially 	similar to 	those of 	their
subordinates 	shall 	not be 	considered to be
supervisory employees. 	(Emphasis 	added.)
23

Despite the different 	statutory 	frameworks, 	the Board's
discussion 	of 	the purpose 	behind 	the 	exclusion of 	supervisors 	is
still 	relevant. 	"[E]xclusions 	are designed 	to prevent 	a division
of 	supervisors' 	loyalties 	that might occur because 	of 	the
negotiating relationship of the parties, 	concerned as 	it 	is with
wages, 	hours 	and working conditions." 	(Unit Determination 	for
the State of California, 	supra, 	PERB Decision No. 	ll0c-S.) 	The
potential 	for the 	conflict 	of 	interest 	lies 	in the 	authority 	to
control personnel decisions. 	It 	is 	this 	authority over personnel
decisions, 	as 	distinguished 	from control 	over work processes,
that 	lies 	at the core of 	supervisory 	status.
For the 	reasons 	discussed below, 	department 	chairpersons 	and
those directors whose 	status 	is 	in dispute, 	with the exception of
the director of 	athletics, 	are 	found not to be 	supervisors 	and
are properly 	included 	in the unit. 	It 	is 	further held that 	there
are 	sufficient 	facts 	in the 	record 	to warrant 	approval 	of 	the
exclusions 	stipulated to by the parties, 	as 	those positions 	are
sufficiently distinguishable 	from those 	in dispute. 	(See
Centinela Valley Union High 	School 	District 	(1978) 	PERB 	Decision
No. 	62.)
As 	in prior 	cases where 	the 	Board has 	included department 	or
division chairpersons 	in a 	faculty unit, 	the department
chairpersons/directors 	here 	are 	eligible 	to 	and do participate 	in
the 	affairs 	of 	the 	Faculty 	Senate; 	they are 	selected by 	and may
only be 	removed by their departmental 	colleagues; 	they operate
and make decisions, 	concerning personnel matters, 	instructional
24

. . . .
matters 	and financial matters, 	in a collaborative, 	collegial
environment; 	and they have 	little 	or no 	independent 	effective
supervisory 	authority over 	other 	faculty members. 	The 	department
chairpersons/directors' 	authority over non-unit personnel 	is
largely delimited by District policies 	and procedures, 	often
exercised only 	in 	collaboration with 	and 	on behalf 	of 	the 	faculty
as 	a 	group, 	and 	subject to 	effective review and approval 	by
higher 	levels 	of 	authority. 	(See Monterey Peninsula 	Community
College District, 	supra. 	PERB Decision No. 	78, 	and Glendale
Community College District, 	supra. 	PERB Decision No. 	88.)
It 	is 	true 	that most department 	chairpersons/directors
'receive 	a 	"substantial 	stipend" 	(Los 	Rios 	Community College
District, supra. 	EERB Decision No. 	18), 	but the record as a whole
does 	not 	support 	the view that the department 	chairpersons/
directors 	have 	an allegiance 	to 	the 	administration 	any 	different
than other 	faculty members, 	and to 	the 	extent 	they have 	and
exercise 	supervisory authority, 	they function more 	as 	agents 	of
their departments/programs 	than of 	the 	administration.
These 	findings 	are 	made 	even more 	necessary when 	the
language 	of 	Education Code 	section 87610.l(e) 	is 	considered.
Department 	chairpersons/directors 	are 	and 	remain 	faculty 	members
while performing this 	function, 	and carry a 	substantial
instructional 	or teaching 	load. 	Being a 	faculty member remains
their 	"primary" 	engagement, 	and their duties may not be
characterized 	as 	other than 	"substantially 	similar" 	to 	other
25

faculty. 	(See 	language 	and discussion of 	Education Code 	section
87610. l(e) ,ante., pp. 22-23. )
A different 	conclusion 	is 	reached with 	regard 	only 	to 	the
director of 	athletics. 	The 	factors which require 	a different
result 	are 	the different 	selection process 	for this 	position
(final 	control 	rests with the director of 	student 	activities 	and
the vice president of 	student 	services), 	the higher level of
assigned time 	(with 	80% 	assigned time 	and only 	20% 	instructional
time, 	the director duties 	cannot 	fairly be 	characterized as
"incidental") 	and 	the 	incumbent's 	own credited testimony
concerning his 	role perception and 	actual 	authority 	over matters
of policy, 	finances and personnel.
Posting 	of 	the Amendment
In 	its 	brief, 	the District restates 	arguments 	already made
on the 	record 	favoring 	a 	ruling ordering posting 	of 	Petitioner's
amended petition. 	The District's 	request must be denied here 	for
the 	same reasons 	given at the time. 	(See reporter's 	transcript
at Volume I, 	from line 	12 	of page 	14 	through line 	18 	of page 	16,
and Volume 	IV, 	from line 	8 	of page 	90 	through line 	13 	of page
93. )
To 	summarize, 	the District asserts 	that the number of
employees 	added by the amendment, 	and the possibility that 	there
may 	have 	been 	a 	non-intervening 	employee 	organization which would
have 	sought 	to 	intervene had 	it 	known that part-time 	faculty
would be 	sought by 	Petitioner, 	requires 	both posting and 	an
intervention period 	based 	on 	the 	amendment.
26

The 	District's 	argument 	is 	unpersuasive 	in light of 	several
factors, 	including first the fact that the amendment, 	while 	it
added a 	large number of 	employees 	to the proposed unit, 	did not
change 	the 	fundamental 	nature 	of 	the unit 	sought.20 In this
case, 	the 	Petitioner 	filed 	initially 	for a unit 	including only
full-time 	faculty, 	and the 	District 	filed an employer decision
(PERB 	regulation 	33190) 	arguing 	that 	only a unit 	including 	all
faculty 	could be 	found 	appropriate. 	No 	employee 	organization
came 	forward to 	file 	an 	intervention 	for the 	same 	or 	an
overlapping 	-- 	or different 	-- unit, 	and no 	such organization
sought 	status 	as 	a 	limited party under PERB 	regulations 	32165 	or
32166.
If 	the Petitioner 	in this 	case had not amended, 	and an
election had later been ordered 	in a unit of all 	faculty, 	only
the Petitioner could have 	sought to qualify 	for the ballot, 	and
would only have had to demonstrate 	30% 	support. 	(PERB 	regulation
33470.) 	Instead, 	the Petitioner offered an amendment which
required demonstration of 	majority 	support, 	and which had 	the
effect 	of 	expediting 	completion of 	the 	hearing 	(by 	removing 	the
unit appropriateness question as one in dispute).
Granting the District's posting request, 	at the time or now,
would 	have 	had 	an 	effect 	contrary 	to 	the 	standard 	imposed 	by 	PERB
A different 	ruling may 	indeed have 	been made 	by 	this 	Board
agent 	if, 	for example, 	a petitioner first 	filed for a unit of bus
drivers 	and 	later 	tried 	to 	add 	instructional 	aides 	to 	the
proposed 	unit.
27

regulation 33100(c),21 and 	for 	all 	the 	reasons 	discussed 	above,
must 	again be 	denied.
Directing 	Election Prior 	to 	Issuance 	of 	Final 	Decision
Petitioner argues, 	in the 	interest of 	expediting the
resolution 	of 	the 	question 	concerning 	representation 	raised 	by
its petition, 	and because of 	election scheduling difficulties
unique 	to 	community college 	faculty units, 	that the hearing
officer 	should 	direct 	that 	an 	election be 	conducted 	based 	on 	his
decision, 	regardless of exceptions 	filed, 	with positions 	in
dispute voting by 	challenged ballot. 	Petitioner relies 	on PERB's
statutory authority, 	National 	Labor Relations 	Board policy 	and
precedent, 	and California 	State University 	(1981) 	PERB Decision
No. 	JR-ll-H 	in support of 	its position.
The District opposes 	the request, 	contending that PERB 	lacks
such 	authority 	and 	arguing 	that 	the 	employer has 	a 	right 	to 	know
who 	its 	supervisors 	are before a 	representation 	election 	is
conducted.
For the reasons which 	follow, 	the Petitioner's 	request must
be 	denied. 	Even assuming that 	PERB has 	authority under 	EERA to
order 	such 	a procedure, 	the 	regulations 	adopted by the 	Board do
not 	allow a 	Board agent to order 	same. 	Under EERA, 	unless 	the
parties 	agree 	on an appropriate unit prior to 	a 	final 	Board
decision 	(see PERB regulation 33460), 	the Board will direct an
election only 	following 	issuance of 	a 	final 	decision and 	a period
21Ante. fn. 3.
28

of posting of 	a notice of decision 	(PERB regulations 	33440, 	33450
and 3 3470) .
The 	case precedent 	cited by Petitioner, 	including California
State University, 	supra. 	PERB Decision No. 	JR-ll-H, 	is neither
instructive 	nor 	controlling 	in this 	matter. 	In California 	State
University 	(1981) 	PERB Decision No. 	173-H, 	the Board itself had
found department 	chairpersons 	to 	be properly 	included 	in 	the
bargaining unit. 	Upon consideration of 	a 	request 	for
reconsideration, 	the Board did not reverse 	its decision, 	but did
agree 	to 	review the proper designation of 	department 	chairpersons
de 	novo, 	based on any 	challenges which any party 	filed to 	the
voter 	eligibility 	of 	department 	chairpersons 	in 	the 	course 	of 	the
election. 	(California State University, 	supra, 	PERB Decision No.
JR-ll-H.)
In the 	instant case, 	obviously, 	the Board itself has 	not
ruled on the 	status 	of 	department 	chairpersons/directors.
PROPOSED 	ORDER
Accordingly, 	the 	following unit 	is 	found to be appropriate
for 	meeting 	and 	negotiating provided 	an 	employee 	organization
becomes 	the 	exclusive representative:
Unit Title: 	Faculty
Shall 	INCLUDE: 	All 	faculty 	(full-time, 	part-time,
adjunct, contract or temporary), counselors, coaches,
librarians, 	child care center teachers, 	department
chairpersons 	and 	those directors 	not 	specifically
excluded.
Shall 	EXCLUDE: 	Classified employees, 	and the
superintendent/president, 	assistant 	superintendents/
vice presidents, 	deans, 	administrative interns, 	and the
director, 	athletics; 	director, 	institutional research
29

and planning; 	special 	assistant to the president;
director, 	student activities; 	director, 	library/media
center; 	facility planner; 	director, 	Escondido education
center/extension education; 	director, 	health services;
director, 	extended opportunity programs 	and 	services;
director, 	extended day services; 	director, 	auxiliary
services; director, facilities; director, human
resources and affirmative action; 	director, 	business
services; 	director, 	financial aid; 	contracts/special
projects 	manager; 	director, 	disabled student programs
and services; 	director, 	matriculation; 	director, 	Camp
Pendleton/Fallbrook/Ramona 	education centers; 	director,
placement services; 	director, 	vocational programs;
director, admissions, records, and veterans' 	services;
director, 	Mt. 	Carmel/Poway education centers; 	director,
fiscal services; 	director, 	public information;
director, 	regional occupational programs; 	director,
instructional 	operations 	and 	services; 	director,
information systems; 	director, 	title III; 	chief
advancement officer; 	director, 	child development
instruction and 	services 	center; 	and director, 	public
services 	program.
An 	election 	shall 	be 	conducted 	to 	determine whether 	the
employees 	in the 	above 	unit wish 	to be 	represented by the 	Palomar
College 	Faculty Association/CCA/CTA/NEA, 	unless 	the 	Palomar
Community College 	District 	chooses 	to grant 	voluntary
recognition.22 A Board 	agent will 	contact 	the parties 	upon
issuance of 	a 	final decision in this matter to discuss 	the
further processing of this 	case.
Right 	of Appeal
Pursuant to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement of 	exceptions 	with the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
Pursuant to 	the EERA and PERB regulations, 	the 	employer
may 	forego 	an 	election 	since 	the 	Petitioner 	evidenced 	majority
support 	and 	no 	timely 	intervention was 	filed.
30

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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	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 	". 	. 	. o r when sent by telegraph or
certified or Express 	United 	States 	mail, 	postmarked not 	later
than the 	last day 	set 	for 	filing 	. . . " 	(See Cal. 	Code of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	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 	served 	on 	a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	January 2, 	1992
Les 	Chisholm
Hearing 	Officer
31