Los Angeles Unified School District (United Teachers Los Angeles) (PERB 0005E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Employer
and
UNITED TEACHERS OF LOS ANGELES,
Employee Organization
and
PROFESSIONAL EDUCATORS OF LOS
LOS ANGELES, Employee Organization
and
LOS ANGELES SCHOOL COUNSELORS'
ASSOCIATION, Employee Organization
)
Case No. 	LA-R-687
EERB Decision No. 	5
November 24, 1976
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Appearances: 	O'Melveny and Myers by Charles G. Bakaly, Attorney,
for Los Angeles Unified School District; Geffner and Satzman by
Leo Geffner and Judy Rochlin, Attorneys, for United Teachers of
Los Angeles; David Freeman, Attorney, for Professional Educators
of Los Angeles; California Pupil Service Employment Corporation
by George Dalton, Attorney, and Tom Agin, Director, for Los
Angeles School Counselors' Association.
Before Alleyne, Chairman; Cossack and Gonzales, Members.
OPINION
PROCEDURAL HISTORY
On April 1, 1976, United Teachers of Los Angeles (UTLA) filed
a request for recognition with the Los Angeles Unified School
District (Employer) seeking a unit of all certificated personnel.
On April 1, 1976, the employer also received a request for
recognition from Los Angeles School Counselors' Assoiation
(LASCA) seeking a unit composed of a secondary school counselors.
On April 30, 1976, Professional Educators of Los Angeles (PELA)
intevened seeking to represent a unit of all certificated
personnel. 	PELA also filed a request for recognition on April
30, 1976, seeking a unit consisting of doctors and dentists. 	On
April 30, 1976, the employer notified the Educational Employer
Relations Board that it doubted the appropriateness of LASCA's
unit, contested the showing of majority support by LASCA, and

doubted the appropriateness of the certificated unit sought by
UTLA and PELA. 	On May 28, 1976, the employer notified the
Educational Employment Relations Board that it doubted the
appropriateness of the unit of doctors and dentists requested by
PELA. 	A hearing was held on September 1, 2, 9, and 10, 1976,
before a hearing officer of the Educational Employment Relations
Board for the purpose of resolving the unit questions in this
case.
During the course of the hearing, LASCA clarified its
position by stating that the unit it was seeking was confined to
the following persons:
Those persons employed by Los Angeles Unified School
District as secondary school counselors who work
three periods per day or more as members of the
counseling and guidance staff in secondary schools
to which they are assigned who possess a California
Teaching Credential and who possess a California
Pupil Personnel Services Credential authorizing services
in school counseling.
The Employer, UTLA and PELA stipulated the following job
classifications defined the cerificated unit sought;
Adult School Librarian; Adult Vocation Counselor;
Advisor, EMR Work Study Education; Advisor, Student
Occupational Placement; Audiometrist; Childern's Center
Teacher; Clinical Psychologist; Coorinating Audiometrist;
Coordinating Field Librarian; Coordinating Librarian;
Coordinating Training Teacher; Dental Hygenist; Develop-
ment Center Teacher;n Educational Audiologist; Elementary
School Librarian; Elementary Teacher;n Full-Time Adult
Education Teacher (20 hours or more per week); Instructor
and Senior Instructor; Long-Term Substitute Teacher; PSA
Counselor; Psychiatric Social Worker; School Nurse;
School Optometrist; School Psychologist; School Psycho-
metrist; Secondary School Librarian; Secondary Teacher;
Senior Educational Audiologist; Senior School
Psychologist; Special Education Counselor; Special
Education Librarian; Special Education Teacher; Staff
Librarian; Work Experience Advisor; and Young Adul
Counselor.
The Employer, UTLA, and PELA stipulated that the certificated
unit should also include all day-to-day substitute teachers who
are paid for 100 days or more during the preceding school year
and all part-time adult education teachers who work 10 hours or
more per week, including all ROC and SETA adult education
teachers who work ten hours or more per week.
The Employer, UTLA, and PELA also stipulated that the following
persons constitute a separate appropriate unit:

Medical Examiner, Psychiatrist, School Dentist, School
Physician, and Chest Specialist.
Subsequent to the close of the hearing, LASCA withdrew its
petition by letter dated October 22, 1976. 	However, while PELA
did not take a clear position on the status of counselors at the
hearing, it did argue for their exclusion in its post-hearing
brief.
DISCUSSION
The issue in this case is whether secondary school counselors
should by included in a unit certificated personnel as the
employer and UTLA contend, or whether they constitute a separate
appropriate unit, the position urged by PELA.
The District is comprised of 753 schools, including
Children's Centers. 	There are 670 elementary and secondary
schools. 	The school district encompassess an area of about 710
square miles. 	It has an average daily attendance of
approximately 676,000 students. 	There are approximately 30,400
certificated employees employed by the school district. 	Six
hundred and forty-nine of these certificated employees are
secondary school counselors whose unit placement is in dispute.
In determining the appropriateness of any unit, we are
required by Government Code section 3545(a) to base our decision
on three factors: 	(1) 	The community of interest between and
among the employees; (2) 	the established practices of the
employees, including, among other things, the extent to which
such employees belong to the same employee organization; and (3)
the effect of the size of the unit on the efficient operation of
the school district. 	By applying these criteria to the case at
hand, we conclude that secondary school counselors should be
included in the overall unit of certificated employees.
In defining what constitutes a community of interest among
and between employees, there are several factors which have been
established by the National Labor Relations Board:1
qualifications, training and skills, job functions, method of
1 While we are not bound by N.L.R.B. decisions, we will
take cognizance of them, where appropriate. 	Where provisions of
California and federal labor legislation are parallel, the
California courts have sanctioned the use of federal statutes and
decisions arising thereunder, to aid in interpreting the
identical or analogous California legislation. 	Alameda County
Assistant Public Defenders' Assn. v. County of Alameda, 33 C.A.
3d 825, 829 (1973); Fire Fighters' Union v. City of Vallejo, 12
C. 3d 608, 615-616 (1974); Social Workers Union Locall 535, SEIU,
AFL-CIO v. Alameda County Welfare Dept., 11 C. 3d 382, 391
(1974); American Federation of State, etc. Employees, Local 685
v. County of Los Angeles, 58 C.A. 3d 601, 605, 606 (1976).

wages or pay schedule, hours of work, fringe benefits,
supervision, frequency of contact with other employees,
integration with work functions of other employees, and
interchange with other employees.2
Since they are selected from the ranks of teachers,
counselors possess the same or similar qualifications, training,
and skills as teachers. 	Each counselor must be a permanent
certificated employee who has qualified for tenure as a secondary
teacher and must possess a California teaching credential at the
secondary level.
Counselors acquire seniority leading to tenure on the basis
of their status as teachers. 	There is no separate seniority
schedule of counselors. 	Personssssssssssssss assigned as
counselors are on leave from their teaching positions; their
teaching positions are filled by long-term substitutes or another
teacher. 	In other words, counselors have re-entry rights into
the ranks of teachers.
Counselors serve at least three periods per day as members of
the counseling guidance staff of the secondary school to which
they are assigned. 	During these periods counselors perform a
variety of functions, many of which are related to the functions
of other certificated personnel within the unit. 	Their
counseling duties, as reflected in the district's job
description, include the following:
- to provide individual and group counseling of students
about educational, emotional, physical, personal, social, and
vocational needs;
- to provide students with information concerning
graduation, college entrance requirements and scholarships;
- to advise parents and school personnel with regard to
education and peronnel problems that may be interfering with
students' learning and success in school;
- to assist in organization, administration, and
interpretation of standardized testing;
- to interpret the results of standardized group tests of
achievement in scholastic ability to administrators, parents, and
teachers;
- to assist in coordinating compilation of materials, in
cooperation with pupil services workers, for scheduled student
case conferences;
- to serve as resource persons to school personnel and
parents regarding the counseling guidance program;
- to assist in preparation of information for entry on
student cumulative records;
- to contribute data concerning student needs to assist in
the development of the total education plan of the school.
2 See Kalamazoo Paper Box Corp., 136 N.L.R.B. 134, 137
(1974).

Counselors and teachers are paid on the same salary schedule.
However, persons who occupy the full-time counseling positions 3
receive supplemental pay for the performance of their counseling
duties. 	Teachers and counselors are eligible for supplemental
pay for coaching, choir, and grade advisor, among other things.
A given individual may receive only one such supplement. 	Some
counselors are assigned supervision of students at various sport
and social events and during school hours on the same basis as
teachers.
Counselors enjoy fringe benefits identical to those of other
certificated personnel, including medical, dental, and life
insurance, holidays, illness pay leave, and other leaves of
absence. 	Counselors share the same lunch and parking facilities
as all other employees. 	Further, counselors are entitiled to
sabbatical leave on the same basis as teachers.
Counselors have frequent contact with other certificated
personnel, particularly teachers, in supervising students, both
during the course of a school day and in extracurricular
activities. 	Counselors spend some portion of their working day
discussing the educational development of students with other
certificated personnel. Some counselors also teach one period or
more per day. 	Conversely, other certificated personnel, such as
grade advisors, psychometrists, clinical psychologists, adult
vocational counselors, EMR (Educable Mentally Retarded) work
study advisors, student occupational advisors, school nurses, and
young adult counselors, perform related counseling functions.
Couselors are required to attend faculty meetings; they belong to
and hold office in faculty coordinating committes and faculty
associations.
There are some interest and working conditions shared among
secondary school counselors which distinguish them from teachers.
Counseling is performed in counseling centers, which are
generally facilities separate from classrooms. 	Counselors have
private offices and they do not have the preparation period
allotted to classroom teachers who teach two or more periods per
day. 	Counselors are required to have a pupil personnel servuces
credential with a specialization in pupil personnel services.
We take cognizance of the fact that the characteristicswhich
distinguish counselors from teachers still do not distinguish
counselors from other certificated employees included in the
unit. For example, while counselors are evaluated pursuant in the
3 The district allots a maximum of 3 full-time counseling
positions to each school. 	A principal may augment the counseling
staff by appointing additional counselors. 	The additional
counselors, however, do not receive the counseling supplemental
pay.

Stull Act 4 by different criteria than classroom teachers, they
are evaluated according to the same criteria as other
certificated personnel agreed to be in a single certificated
unit, including nurses, librarians, PSA(pupil services and
attendance) counselors and teachers assisting in the assistant
principals office. 	We find that these several distinguishing
characteristics are not sufficient to establish a separate
community of interest or separate appropriate unit for the
counselors, because, taken together, they do not substantially
distinguish counselors from the other certificated employees
included in the unit.
In defining the established practices of the employees, the
extent to which they have belonged to one organization or another
is one criterion. 	In this case, counselors have historically
belonged to both UTLA and LASCA. 	The record is silent with
respect to their membership in PELA. 	UTLA and PELA have
represented counselors along with all other certificated
employees in this unit as members of the Certificated Employees'
Council established pursuant to the Winton Act.5 It is clear
that the past practices of the counselors and other certificated
personnel shed little light on the question of their unit
placement.
Finally, there was no evidence submitted nor argument offered
on the efffect of the size of the unit on the efficient operation
of the school district. 	Therefore, we give this criterion little
weight in determining the appropriate negotiating unit in this
case.
CONCLUSION
We conclude that secondary school counselors in this case
share a community of interest with other certificated employees
and should be included in the overall certificated unit.
ORDER
4 The Stull Act, Section 13485 of the Education Code,
requires that each school district in the state develop and adopt
a system guidelines for the objecive evaluation and assessment of
the performance of all certificated personnel. Section 13487
outlines the manner in which the governing board of each school
district is required to implement this mandate.
5 The Winton Act, Education Code Sections 13080-13090,
governed employer-employee relations in public schools prior to
the passage of Government Code Sections 3545 et. seq. 	It enabled
such employee organizations as the school district "may
designate" pursuant to "reasonable rules and regulations" to meet
and confer" with the school district. 	No unit criteria or
procedures for determining appropriate units existed. 	See
Sweetwater Union High School District, EERB Decision No. 4.

The Educational Employment Relations Board directs that:
1. 	The followingn units are appropriate for the purpose of
meeting and negotiating, provided an employeen organization
becomes the exclusive representative:
UNIT A
Included: 	All certificated employees, including secondary
school counselors.
Excluded: 	All other employees, including medical examiners,
psychiatrists, school dentists, school physicians, chest
specialists, managerial employees, supervisory employees, and
confidential employees.
UNIT B
Included: 	All medical examiners, psychiatrists, school
dentists, school physicians, and chest specialist.
Excluded: 	All other employees, including managerial
employees, supervisory employees, and confidential
employees.
2. 	The employee organization have a 10-workday posting period of
the Notice of Decision to demonstrate to the Regional Director at
least 30 percent support in the above units. 	The Regional
Director shall condu an election at the end of the posting period
if: 	(1) 	more than one employee organization qualifies for the
ballot, or (2) if only one employee organization qualifies for
the ballot and the employer does not grant voluntary recognition.
by: 	Jeraaou H. Cossack, Member
Alleyne,Chairman Reginald
Date: 	November 24, 1976
Raymond J. Gonzales, Member, in concurrance:
The result reached by my colleagues rests on an analysisn of
the facts presented at the time of hearing in this case in light
Government Code Section 3545(a). 	I do not totally dismiss the
nature of the facts which argue for inclusion of the counselors
in this case. 	However, unlike my colleagues, I find more
significant the procedural developments of this case.
Specifically, I refer to the board certificated unit stipulation
entered into by the parties at the time of the hearing. 	Further
LASCA's subsequent withdrawalnof its petition for a separate

counselors ' unit, and the failure of PELA to present an
affirmative case, instead relying on its post-hearing brief to
argue for the counselors exclusion,give reason for even greater
concern.
However, it hardly seems consistent,m at this point, to
exclude counselors from the stipulated unit which includes such
certificated employees as school psychologists, school
psychometrists, psychiatric social workers, PSA counselors, and
other personnel similarly involved in some aspect of counseling
for the student. 	Were such variety of individuals not stipulated
to as part of the unit, I might have been less than inclined to
include counselors in a unit predominantly composed of teachers.
LASCA's withdrawl of its petitionafater the close of the
hearing further influences my concern herin. 	Only LASCA's
petition sought the exclusion of counselors as a separate unit.
None of the petitions filed by the other employee organizations
in this case sought their exclusion. 	LASCA's withdrawal coupled
with the failure of PELA to present any evidence or effective
rebuttal testimony hardly warrants the exclusion of counselors in
this case.
On the basis of the foregoing and taking into consideration
the size and other unique demongraphic characteristics of the Los
Angeles Unified School District noted at the outset of the
majority opinion, I would limit this case to its facts such as
they are, giving it little precedential value.
Raymond J. Gonzales, Member