Los Rios Community College District * * * OVERRULED IN PART by Hartnell Community College District (1979) PERB Decision No. 81 (PERB 0018E)

OVERRULED IN PART by Hartnell Community College
District (1979) PERB Decision No. 81
STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
LOS RIOS COMMUNITY COLLEGE DISTRICT,
Employer
and
LOS RIOS TEACHERS' ASSOCIATION, CTA/NEA,
Enployee Organization
and
LOS RIOS FEDERATION OF TEACHERS, LOCAL
2279, AFT/AFL-CIO,
Employee Organization
)
)
)
)
) 	Case No. 	S-R-438
EERB Decision No. 18
6/9/77
)
)
)
)
)
)
)
)
Appearances: 	Lee T. Paterson, Attorney (Paterson & Taggart) for Los Rios
Community College District; Coleman A. Blease, Attorney (Blease, Vanderlaan &
Rothschild)for Los Rios Teachers' Association, CTA/NEA; Stewart Weinberg,
Attorney (Van Bourg, Allen, Weinberg & Roger) for Los Rios Federation of
Teachers, Local 2279, AFT/AFL-CIO.
Amici Curiae: 	John L. Bukey, Attorney (Biddle and Walters) for Association of
California Community Colleges; Jeffrey L. Kerwin and Janette Golds, California
Association of Part-Time Instructors and Peralta Federation of Teachers;
Clifton B. Gordon, Chairman, Los Rios Community College District Division
Chairpersons' Association.
Before 	Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
On April 21, 1976, the Los Rios Teachers' Association, CTA/NEA (Associa-
tion) filed a request for recognition as the exclusive representative of all
certificated employees of Los Rios Community College District (District).1
11 The Association requested recognition for all certificated employees of
the District including, but not limited to the following: 	Colleges: 	instruc-
tors full-time and part-time, counselors, college nurses, librarians, division
chairpersons, department chairpersons, directors of athletics, financial aids
coordinators (ARC, CRC, SCC), coordinator of special programs - SCC, audio-
visual officer, work experience coordinator, college public information officer,
veterans affairs coordinator, coordinator-enabler for the handicapped, place-
ment specialist. -1-
________ ;

On May 5, 1976, the Los Rios College Federation of Teachers, Local 2279,
AFT/AFL-CIO (Federation) filed an intervention.
2
On June 7, 1976 the District notified the Educational Employment Relations
Board (EERB) that it doubted that the Association represented a majority of
employees in an appropriate unit, that the Federation had intervened, and
that a representation election was requested. 	Also on June 7, 1976 the Associa-
tion requested a representation hearing. 	A hearing was held on September 1, 2,
3 and 17, 1976.
ISSUES
There are several issues presented in this case: 	(1) whether part-time
instructors should be included in the same negotiating unit as full-time
instructors; 	(2) whether day-to-day substitutes should be included in the
negotiating unit; (3) whether division chairpersons are supervisors; (4)
whether athletic directors are managerial or supervisory employees; 	(5) whether
financial aids coordinators are management employees; (6) whether public infor-
mation officers are confidential employees; (7) whether summer school instructors
should be included in the negotiating unit; and (8) whether the coordinator of
special programs is a management or supervisory employee.
DISCUSSION
Los Rios Community College District consists of three separate colleges:
American River College with a total enrollment of approximately 16,000 students
(continued)
The Association's request for recognition specifically excluded the follow-
ing: 	District: 	chancellor/superintendent, assistant superintendents, director
of personnel, director of planning and construction, administrative assistant-
studies and insurance, administrative assistant-personnel, employer/employee
relations assistant, presidents, deans, associate deans, assistant deans,
director (head)-library services, admissions and records officer-CRC.
C'
2 T h e unit sought by the Federation included, but was not limited to, full-
time instructors, part-time instructors, counselors, librarians, financial aids
coordinators, placement specialists, division chairpersons, department chair-
persons, audiovisual officers, directors of athletics, college nurses, veterans'
affairs coordinators, work experience coordinators, coordinators of special
programs, college public information officers, and coordinators for the
handicapped.
-2-

at the main campus in Sacramento and 1,200 students at its Placerville location;
Sacramento City College with a total enrollment of approximately 12,000 students;
and Cosumnes River College with a total enrollment of approximately 8,000
students. 	The community college program includes a two year academic transfer
program into the university and state college systems, a vocational education
program and certain community services and non-credit courses.
Part-tim. .e Instructors
The District urges the exclusion of part-time instructors from the negotia-
ting unit. 	The District's argument is essentially three-fold: 	first, that the
language of Section 3545(b)(l)) 	which requires that all classroom teachers be
included in the same negotiating unit was not intended by the Legislature to
apply to community colleges since community college teachers are referred to as
"instructors" or "faculty" but not as "classroom teachers"; second, that part-
time instructors lack a sufficient community of interest with full-time instructors
to be included in the same negotiating unit; and third, that the inclusion of part-
time and full-time faculty in the same negotiating unit will impede the efficient
operation of the District because the inherently divergent interests of these
two groups of employees necessarily provoke internal instability and strife.
The Association and the Federation, conversely, urge that part-time faculty
be included with full-time faculty in a single unit. 	The Association argues that
reading the language of Sections 3545 (a) and 3545 (b) (1) together mandates that
the appropriate unit should be the "largest appropriate unit" and that part-time
instructors share a community of interest with full-time instructors. 	The
Federation argues that part- and full-time instructors share a community of
interest and further contends that both are "classroom teachers" within the
meaning of Section 3545(b)(l) because their functional relationship proscribes
any meaningful distinction.
We conclude that a single unit composed of both full-time instructors and
part-time instructors who have taught the equivalent of three or more of the last
six semesters is appropriate.
I
The District employs approximately 740 full-time day instructors, 48 part-
time day instructors and 1100 part-time evening instructors. 	Approximately 370
of the evening instructors are also full-time day instructors for the District.
All statutory references are to the Government Code unless otherwise noted.
-3-

Of the remaining 730 part-time evening faculty, 	200 teach full-time in another
school district and approximately 530 have no other employment or have additional
non-teaching employment.
A full-time teaching assignment is 15 formula hours of instruction. 	One
formula hour is defined as one lecture hour or one and one-half laboratory hours.
A full-time instructor must carry more than 60 percent of a full-time instructional
load (more than nine formula hours) and work at least 75 percent of the teaching
days in the school year. 	A part-time instructor is one who teaches not more than
60 percent of an instructional load 	or 	less than 75 percent of the days in a
school year.
The nomenclature applied to community college faculty is confusing and over-
lapping. 	In addition to the part-time/full-time distinction, community college
instructors are designated as either day or evening, contract, regular or
temporary.
A day instructor may be either part-time or full-time, 	contract, regular
or temporary. 	Day instructors normally teach between the hours of 8:00 a.m.
and 5:00 p.m. Monday through Friday, although some also teach during the evening
hours as part of their day assignment. 	There are approximately 48 part-time
day instructors; 	the remainder are full-time. 	The term "day instructor" appears
to be used most frequently to designate full-time contract or regular instructors.
An evening instructor also may be either part-time or full-time, contract, regular
or temporary. 	All but five or six of the evening instructors are part-time.
Evening instructors generally teach between the hours of 5:00 and 10:00 p.m.
Monday through Friday and anytime on Saturday.
A contract instructor is a probationary employee in the first two years of
employment with the district. 	A regular instructor is a permanent employee,
generally full-time. 	A temporary instructor is a full- or part-time employee
replacing an instructor who is on a long-term leave of absence, a long-term
substitute or a person employed in a special federally funded project. 	Temporary
instructor is also used by the District to designate evening division instructors.
With minor exceptions, all community college instructors are required to
hold a community college teaching credential. 	Approximately 80 to 90 percent of
the District's full- and part-time instructors have a master's degree.
There are somewhere between 300 and 500 applicants for each full-time posi-
tion in the district. 	Many full-time day instructors had originally been hired
as evening instructors. 	Each college's dean of instruction, the appropriate
-4-

division chairperson and perhaps division faculty representatives review the
applications and select those persons they wish to interview individually.
Apparently the division chairperson and faculty representatives interview the
applicants individually and compile a reduced list of the top applicant or
applicants. 	This list, which designates a recommended applicant, is forwarded
to the dean. 	The dean, in turn, interviews the top applicant or applicants
and makes a recommendation to the college president.
Hiring of full- and part-time evening instructors is also performed essentially
at the individual college level by the college assistant or associate evening
college dean. 	First preference for evening college instruction is given to day
instructors. 	All applicants for full-time day instructor positions are also
asked to indicate if they are interested in part-time, 	full-time substitute or
evening instruction. 	Those interested in evening instructor positions are
requested to apply to the evening dean at the individual college campus. 	It is
unclear on the record how various individual
. ' . .'
s are selected from among the applicants
for part-time evening positions. 	At least one part-time person was screened
and selected through the same process utilized in selecting full-time faculty.
Full-time day and part-time evening instructors sign different employment
contracts. 	The most significant distinction in the contracts signed by part-
time instructors is that the offer of employment is dependent upon an enrollment
of at least 20 students at the end of the registration period for each class
offered. 	However, both testimony elicited at the hearing and the District's
Administrative Regulation 7131 provide exceptions to this requirement. 	The
vice chancellor of personnel services testified that the 20 student requirement
was not rigidly followed. 	District Administrative Regulation 7131 governing
class size states, in pertinent part:
3.0 	Exceptions
3.1 	A class that meets any of the following exceptions
may be continued: 	courses required for graduation,
courses required in a major or in career subject
areas, courses offered irregularly based on enroll-
ment and need, combined courses meeting at the same
hour with the same instructor.
3.2 	Exceptions to minimum class size guidelines may also
be based upon the following: 	limited classroom or
laboratory facilities, campus size and geographical
location, experimental or pilot programs, and statutory
and state regulations mandating class size.
-5-

Many of the courses offered are taught in both the day and evening programs.
Equal credit is given the same course whether it is taught in the day or evening
divisions. 	All instructors are expected to be equally prepared.
The responsibility of both full- and part-time instructors is primarily
teaching assigned classes. 	In conjunction with this responsibility, both must
prepare for classes, write and grade exams, evaluate student projects, and
maintain and submit attendance records. 	Both are required to provide conference
time for students, although the requirement of one office hour per day does not
apply to part-time evening instructors.
Part-time day and evening instructors participate fully in the academic
senates at each college. 	Participation on faculty committees is expected but
not mandatory for full-time instructors. 	Part-time evening instructors may and
do serve on faculty committees; 	they have participated on advisory, affirmative
action, budget, curriculum, commencement, art exhibit, and evening college
advisory committees. 	Full-time faculty are required to attend division and
department meetings, but are not penalized for failing to attend. 	Part-time
evening faculty are encouraged to, and do, attend these division and department
meetings.
Full-time day instructors report to and are evaluated by the division chair-
person. 	They may also be evaluated by students and peers. 	At Cosumnes and
Sacramento City Colleges contract instructors are evaluated at least once a
year and regular instructors are evaluated at least once every two years. 	At
American River College contract and regular instructors are evaluated every
other year. 	Part-time evening instructors report to the assistant or associate
dean of the evening college. 	They are evaluated each semester during their
first year of teaching and annually thereafter. 	They are often evaluated by
the division chairperson on the same forms used to evaluate full- and part-time
day instructors; 	they may also be evaluated by a member of their department.
Part-time evening instructors who are also full-time day instructors are not
separately evaluated for their evening work.
While Education Code Section 87449 	delineates tenure rights, various
courts have rendered contradictory interpretations. 	The most definitive comment
-6-
44All references to the Education Code contained in this Decision are to the
Reorganized Education Code as enacted by Chapter 1010, and amended by Chapter 1011,
Laws of 1976, effective April 30, 1977.

regarding the tenure rights of part-time evening faculty at the moment is that
they are in a state of flux. 	All certificated employees are eligible for paid
industrial accident and illness leave. 	While both full- and part-time instructors
are eligible for research grant leave it is unclear whether part-time instructors
must be employed full-time when they are actually on grant leave. 	Full-time
instructors receive partially or fully paid sick, critical illness, exchange
teaching, sabbatical and conference attendance leaves. 	Part-time instructors
receive pro rata paid sick leave; some have received paid conference leave,
Unpaid long term personal, child care, educational improvement and foreign
educational employment leaves are available only to full-time instructors.
Medical and dental insurance valued at approximately $900 per year is
provided only for full-time day and part-time day instructors who teach more than
50 percent of a full-time load. 	However, at least one part-time evening instructor
who taught more than 50 percent of a full-time load has been awarded medical and
dental benefits. 	The District's grievance procedure is not available to part-
time evening faculty, nor are they entitled to a retention hearing.
The full-time day salary schedule has five classes based on educational
attainment un5 and 16 steps based on length of service with the District. 	The
part-time evening salary schedule contains the same five classes based on
educational attainment but only one step. 	Since 1968 the full- and part-time
salary schedules have been related; part-time instructors receive roughly 78
percent of the first step of the full-time salary schedule. 	Full-time instructors
are paid on the first of each month while part-time instructors are paid on the
fifteenth.
Both full- and part-time day and evening instructors have the same library
cards and privileges. 	They request and select textbooks in the same manner.
They have the same student assistance and supervise instructional assistants
in their classes in the same fashion. 	All have equal access to audiovisual
facilities. 	They enjoy the same parking facilities. 	Both have mailboxes,
although in different locations. 	Both have listed telephone numbers, although
in separate directories. 	Full-time day instructors are provided with office
space; part-time evening instructors generally are not.
55Class I (907o) : 	Those without a master's or equivalent degree.
Class I: 	BA or equivalent plus 30 hours.
Class II: 	MA or equivalent plus 24 hours.
Class III: 	MA or equivalent plus 48 hours.
Class III plus Doctorate: 	earned doctorate (appropriate Class III
step rate plus 10 percent of Step I, Class III).
- 7 -

Finally, the evening college curriculum and purposes at all three district
colleges are substantially in accord with those of the day colleges. 	Specifically,
the 1976-1977 catalog of American River 	College provides, in pertinent part,
Evening College is an integral part of the instructional
program of American River College, providing quality
educational services at hours convenient for adults working
toward certificates and degrees or looking for self-enrichment.
The certificate of achievement and associate degree may both
be earned by evening attendance
Similar sentiments are expressed in the Sacramento City and Cosumnes River
College catalogs. 	An examination of the 1975-1976 American River College class
schedules 	discloses that of the 67 departments offering courses, 52 departments
offered both day and evening courses. 	Four departments offered only evening
courses: 	administration housekeeping management, behavioral science, construction
supervision and inspection, and dactylology. 	Eleven departments offered only
day division courses: 	French, German, interdepartmental studies, interdisciplinary
studies, Italian, military science, nursing, physical education-women, respiratory,
therapy, Russian, and student government.
II
This is the first case involving community college certificated employees
to come before us.66 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.
66 We have previously debated the meaning of "classroom teachers" contained
in Gov. Code Sec. 3545(b)(1) of the Educational Employment Relations Act (EERA)
and the interplay between Secs. 3545(a) and 3545(b)(1). 	See Belmont Unified
School District, EERB Decision No. 7, December 30, 1976, at pp. 3, 9-12 and
13; Petaluma City Elementary and High School Districts, EERB Decision No. 9,
February 22, 1977, at pp. 2, 8-12 and 12-14; and Oakland Unified School District,
EERB Decision No. 15, March 28, 1977, at p. 24.
-8-

We have previously indicated that we will take cognizance of National Labor
Relations Board (NLRB) cases, where appropriate, in determining community of
interest between and among employees.7 The lead NLRB case 	dealing with the unit
placement of higher education faculty is New York University, 	205 NLRB 4, 	83 LRRM
1549 	(1973). 	In that case the NLRB reversed its prior position 	and excluded
part-time instructors who were not employed in "tenure track" positions. 	The
NLRB held that there were four factors which precluded any mutuality of interests
between part-time and full-time instructors: 	compensation; participation in
university government; eligibility for tenure; 	and working conditions.
The NLRB noted that most of the part-time instructors received their primary income elsewher
received no fringe benefits and were excluded from the faculty senate. 	They did
not participate in department decisions on appointments, promotions or tenure;
they were not consulted on curriculum development, 	degree requirements or depart-
ment chair selection. 	They had no voice in developing institutional policies,
nor were they obligated to engage in research, writing or other creative endeavors,
counsel students or participate in department and university affairs. 	Finally,
they could not achieve tenure under any circumstances.
The NLRB has strictly adhered to this approach in subsequent cases. 	See
University of San Francisco, 207 NLRB 12, 84 LRRM 1403 (1973); University of
Miami, 213 NLRB 634, 87 LRRM 1634 (1974); and University of Vermont, 223 NLRB
47, 91 LRRM 1507 (1976).
We do not find this approach applicable 	to the context of California's
community college system. 	The NLRB cases deal with four-year universities
77
Los Angeles Unified School District, EERB Decision No. 5, November 24,
1976.
8See University of New Haven, 190 NLRB 478, 77 LRRM 1273 (1971); and
Long Island University, 189 NLRB 904, 77 LRRM 1001 (1971).
9Thoughtful analysis of the policy implications of the effect of the unit
structure on institutions of higher education has been largely confined to
four-year private universities. 	See Kahn, 	The NLRB and Higher Education:
The Failure of Policy-Making Through Adjudication,21 U.C.L.A. L. Rev. 	63 	(1973)-- .. .
-9-

which place an emphasis on research and writing not found in the community college
system. 	The community colleges are primarily teaching institutions which offer
instruction through the second year of college.10	10 In fact, while the Education
Code specifically authorizes research components for both the state college and
university systems, there is no such authorization for the community colleges.111	1
We find significant distinctions between the facts in this case and those
in New York University. Unlike New York University, 	the compensation of part-
time faculty here is directly related to that of full-time faculty. 	While part-
time faculty do not receive additional compensation for longevity of service, they
do receive additional compensation for increased educational attainment in the
same way as full-time faculty. 	In addition, part-time faculty participate in
the faculty governance functions of the colleges in the same manner as full-
time instructors by serving in the faculty senates and on various advisory
committees.
The question of tenure rights of part-time community college instructors,
a factor heavily relied upon by the NLRB, is one which the California courts
will ultimately have to resolve. 	The most recent published decision, specifically
affecting Los Rios Community College District, accords -tenure to a part-time
instructor.12	12 	13	13
However, like Balen v. Peralta Junior College District, 	the
only case on the tenure issue to yet reach the California Supreme Court, the
1
Court held that the 1967 and 1972 amendments to the Education Code414 could not
be applied retroactively to deprive a part-time instructor of eligibility for
tenure. 	Other court decisions subsequent to Balen have both awarded and denied
1 0 See Ed Code Sec. 66701.
11	11 See Ed. Code Sec. 66000 et seq., known as the Donahoe Higher Education
Act.
12
Annette M. Deglow v. The Board of Trustees, Los Rios Community College
District 	et al., 69 Cal.App.3d (1977).
13 11 Cal.3d 821 (1974).
1 4 See Ed. Code Sec. 87482.
-10-

tenure to part-time 	instructors.-15 	The uncertainty presently existing on this
issue precludes us from according tenured status any controlling weight in reaching
our decision about the community of interest of these employees. 	If anything, 	the
viable possibility that part-time instructors may ultimately and unequivocally
attain tenure rights argues for their inclusion in the same unit as full-time
instructors. 	Moreover, tenure is but one factor for consideration in determining
community of interest.
Finally, while differences do exist in the working conditions of full-
and part-time instructors, their job duties and responsibilities are virtually
identical. 	In many cases, both teach identical courses; both counsel students
in the same fashion. 	Both are evaluated in a similar fashion, often by the
same people, and enjoy many of the same benefits and privileges. 	Many of those
fringe benefits not shared with full-time instructors are legitimately the
subject of negotiations. 	Moreover, while some of the part-time instructors
have their primary employment relationship elsewhere, many have their primary
employment with the District either as full-time instructors or solely as
part-time instructors. 16
16 We do not believe that the mere fact that some part-
time instructors are employed elsewhere, standing alone, negates their interest
in those matters within the scope of representation at this District for the
time they are employed by the District.
We are mindful, however, that including in the negotiating unit persons
with only a passing interest in community college teaching would likely be
disruptive. 	While most jurisdictions have approached this ticklish problem by
looking to the percentage of full-time hours taught by part-time faculty.1717	17
1115 Compare Ferner v. Harris, 45 Cal.App.3d 363 (1975); Coffey v. Governing Board
of San Francisco Community College District, 66 Cal.App.3d 279 (1977); California
Teachers Association v. Santa Monica Community College District, L.A. County
Superior Court, Case No. C 169 979, February 7, 1977; and Peralta Federation of
Teachers v. Peralta Community College District, 69 Cal.App.3d 281 (1977).
16	16 The record does not disclose how many of the approximately 530 part-time
instructors who have no other employment or have additional non-teaching employment
fall into which category.
17	17 See Community College of Philadelphia, 	7 Paper 116 (1976); OSEA v. Eastern
Oregon State College, 1 Ore PECBR 681 (1976).
-11-

it has not been a particularly satisfying solution. 	Rather, we think that
persons who continually, semester after semester, teach in the community
college have demonstrated their commitment to and interest in its objectives.
It seems unlikely that persons who have only a minimal interest in the community
college will continually seek or obtain employment there. 	Accordingly, we
include in the negotiating unit only those part-time instructors who have taught
-the equivalent of three or more semesters during the last six semesters
inclusive.118	8
While we have concluded that full-time and part-time instructors possess
a community of interest which mandates their inclusion in a single unit, we
must also consider whether either the established practices of these employees
or the efficient operation of the district would warrant a contrary conclusion.
Since the meet and confer sessions of the 1968-1969 school year, proposals
have been offered by the CEC on behalf of part-time instructors. 	Furthermore,
the salary of part-time faculty has historically been related to that of full-
time faculty. 	Thus, while we have previously held that we would give little
weight to the established practices of employees which antedated the passage of
the EERA. 19 that evidence offered supports the inclusion of part-time faculty
in a single unit with full-time faculty.
Finally, we find without merit the District's argument that a single unit
composed of both full- and part-time faculty would impair its efficient opera-
tion because of the inherently divergent interests of these two groups of
employees. 	As we have previously set forth, we think their similarities far
outweigh their differences. 	Moreover, the trend toward prescribing a unit
criterion which specifically countenances the efficient operation of an employer
is generally understood to be designed to avoid excessive fragmentation of
units. 20 No evidence was offered with respect to the inefficiency of a single
unit. 	The evidence offered related to community of interest, which we have
found supports the single unit.
TO
LO	.LQ
See Board of Trustees, University of Massachusetts, 3 Mass LC 1179 (1976)
19
Sweetwater Union High School District, EERB Decision No. 4, November 23,
1976.
20
See Shaw & Clark, Jr., 	Determination of Appropriate Bargaining Units in
the Public Sector: 	Legal and Practical Problems, 51 Ore. L. Rev. 152
(1971).
-12-

Day-to-Day Substitutes
The District seeks to exclude day-to-day substitutes from the negotiating
unit. 	The positions of the Association and Federation are unclear from the
record; neither offered any evidence to rebut the District's contention or any
post-hearing argument on this issue although they petitioned for "all certifi-
cated employees." 	We conclude that in this case day-to-day substitutes should
be excluded from the negotiating unit.
The testimony does not augment District Regulation 5162, which defines a
day-to-day substitute as "one who is employed to fill the position, on a day-
to-day basis, of a regular or contract or temporary employee who is absent from
service." 	Day-to-day substitutes do not receive any leave benefits, nor do they
receive retirement benefits. 	They are not assigned office space, are not pro-
vided secretarial assistance, are not required to keep office hours, and are
not required to attend division or department meetings. 	They are not formally
evaluated.
There was no evidence offered about the frequency of their employment
nor their interaction with any other unit personnel. 	In these circumstances,
there is no evidence which would support their inclusion in the negotiating unit.21
Division Chairpersons
The District contends that division chairpersons are supervisors and should
be excluded from the negotiating unit, while both the Association and the Federa-
tion would include them.
We agree with the District that division chairpersons are supervisors within
the meaning of the Act and should be excluded from the negotiating unit.
I
There are 31 division chairpersons in the District. 	Each college has one position
titled 	"division chairperson/counseling;" in addition, 	Sacramento City College has 11
teaching division chairpersons; American River College has 10 teaching division
chairpersons; and Cosumnes River College has seven teaching division chairpersons.
Chairpersons work approximately seven hours a day. 	Between 60 and 90 percent of
their time is assigned to performing administrative duties; the remainder is
spent teaching or counseling. 	They are paid on the regular faculty schedule plus
an annual stipend of between $1,957 and $2,260. 	They work five days a year more
than regular faculty.
21Cf. Belmont Elementary School District, supra; Petaluma City Elementary
and High School Districts, supra ; and Oakland Unified School District, supra.
-13-

Each college is headed by a president, 	to whom the dean of instruction and
the dean of student personnel services report. 	At American River College, the
10 teaching division chairpersons report directly to the dean of instruction;
the one chairperson/counseling reports to the associate dean of counseling and
admissions, who in turn reports to the dean of student personnel services. 	The
11 teaching chairpersons at Sacramento City College and the seven at Cosumnes
River College report to the associate dean of instruction, who reports to the
dean of instruction; the one counseling chairperson at each college reports
directly to the dean of student personnel services.
Division chairpersons are selected by the president of each college from a
list submitted by the division faculty. 	The president may reject all of the
nominees; at least one president has done so in one division. Chairpersons serve
for a three year term and may be reappointed. 	District policy does not require
that they hold a supervisory credential; however, Sacramento City requests that
they have a supervisory or administrative credential and American River requires
that all chairpersons except counseling have a supervisory credential.
Chairpersons are not permitted to belong to the faculty senates. 	They
belong to the college division council, composed of all division chairpersons
and chaired by the associate dean of instruction. 	The council meets at least
every two weeks to discuss the instructional programs.
Chairpersons participate on faculty selection committees. 	The committee
screens, interviews and recommends applicants to the dean of instruction. 	Chair-
persons may recommend termination or transfer of faculty; however, the recommendations
are not always followed. 	They are responsible for forwarding faculty evaluations
to the dean of instruction. 	Faculty may be evaluated by their peers, 	students,
department heads or division chairpersons. 	Chairpersons are responsible for
resolving disciplinary problems. 	Under the District's existing grievance procedure,
grievances are filed in the first instance with the chairpersons, who maintain
the records of the grievance process. 	Chairpersons are responsible for faculty
attendance and forward attendance forms to the dean of administration. 	They
may recommend loss of pay for unexcused faculty absences. 	They determine when
a substitute is required and select the substitute.
-14-

Chairpersons are responsible for coordinating the division's curriculum.
They assign classes through consultation with the faculty. 	They assign class-
room and laboratory facilities to instructors and determine the appropriate
class size. 	In conjunction with the dean or associate dean of instruction,
they determine the number of sections or classes to be offered. 	They meet with
evening faculty to assure that comparable day and evening courses correspond
in content.
Chairpersons are responsible for the preparation and disbursement of the
division's budget. 	While the recommended division budget may be reviewed and
modified, 	apparently by both the dean of instruction and the budget committee,
there is very little review of expenditures approved by chairpersons. 	Chair-
persons allocate funds for supplies, 	travel and equipment; they may transfer
funds from one category to another. 	While only the superintendent of the
District may authorize out-of-state travel and only the college president may
authorize travel more than 100 miles from the college, all travel requests
must be initially approved by the chairperson. 	Chairpersons also authorize
all purchase orders, supply requests, time sheets and pay vouchers.
II
This is the first case in which we have applied Section 3540.l(m) of the
Act,
22
which defines supervisors, to certificated community college employees.
This definition as applied to certificated college employees must be viewed
in light of long-standing traditions of collegiality and shared authority within
institutions of higher 	education.23 	In the instant case, however, it is clear
22Section 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 such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
23 Compare Rosemary Hill College, 202 NLRB 1137, 82 LRRM 1768 (1973);
Syracuse University, 204 NLRB 1144, 83 LRRM 1716 (1973); and New York University,
supra 	with Rensselaer Polytechnic Institute, 218 NLRB 1435, 89 LRRM 1844 (1975);
Fairleigh Dickinson University, 205 NLRB 673, 84 LRRM 1033 (1973) .
-15-

that their job duties require an allegiance with the administration not required
of other faculty. 	They are selected by the administration, rather than elected
by the faculty to serve as its spokesperson to the administration.
24
They are
paid a substantial stipend in addition to their regular salary.
Chairpersons exercise substantial control over critical aspects of faculty
teaching responsibilities. 	They alone determine class size and location. 	Their
approval is required for travel, supplies and absences from assigned duties.
They are the first step in the grievance procedure and responsible for maintain-
ing the records of grievances and attendance. 	They are precluded from participation
in the faculty senate. 25Under the meet and confer provisions of the Winton Act 	chairpersons were
represented by the Certificated Employees Council (CEC). 	Prior to the passage
o f t h e E E R A , 	n o c r i t e r i a o r p r o c e d u r e s 	f o r d e t e r m i n i n g a p p r o p r i a t e u n i t s 	e x i s t e d . 9ft
F u r t h e r m o r e , 	t h e E E R A e x p l i c i t l y d e f i n e s s u p e r v i s o r s , 	w h i c h t h e W i n t o n A c t d i d
n o t . 	T h u s , 	the r e l e v a n t s e c t i o n o f t h e E E R A t o b e a p p l i e d i n i n s t a n c e s w h e r e
s u p e r v i s o r y s t a t u s i s a t i s s u e i s S e c t i o n 3 5 4 0 . l ( m ) . 	I n t h e s e c i r c u m s t a n c e s a n d
g i v e n t h e c l e a r e x e r c i s e o f s u p e r v i s o r y a u t h o r i t y b y c h a i r p e r s o n s , 	w e d o n o t
v i e w t h e p r i o r r e p r e s e n t a t i o n o f c h a i r p e r s o n s b y t h e C E C a s 	d i s p o s i t i v e o f
t h e i r u n i t p l a c e m e n t .
A t h l e t i c 	D i r e c t o r
T h e D i s t r i c t a r g u e s 	that a t h l e t i c d i r e c t o r s 	a r e m a n a g e r i a l o r s u p e r v i s o r y
e m p l o y e e s a n d t h e r e f o r e seeks 	t o e x c l u d e t h e m f r o m t h e c e r t i f i c a t e d u n i t . 	B o t h
t h e A s s o c i a t i o n a n d F e d e r a t i o n s e e k t o i n c l u d e t h e m i n t h e u n i t . 	W e c o n c l u d e
t h a t a t h l e t i c d i r e c t o r s 	a r e s u p e r v i s o r s 	a n d s h o u l d b e 	e x c l u d e d f r o m t h e u n i t .
T h e r e a r e t h r e e a t h l e t i c d i r e c t o r s i n t h e D i s t r i c t . 	T h e a t h l e t i c d i r e c t o r
a t A m e r i c a n R i v e r C o l l e g e i s a f u l l - t i m e p o s i t i o n . 	A t S a c r a m e n t o C i t y a n d
C o s u m n e s R i v e r C o l l e g e s 	t h e p o s i t i o n o f a t h l e t i c d i r e c t o r i s 	c o m b i n e d w i t h t h a t
o f 	d i v i s i o n 	c h a i r p e r s o n / p h y s i c a l 	e d u c a t i o n .
A t h l e t i c d i r e c t o r s 	a r e r e s p o n s i b l e f o r 	t h e i n t e r c o l l e g i a t e a t h l e t i c p r o g r a m .
T h e y c o o r d i n a t e 	t h e 	sports p r o g r a m b y e s t a b l i s h i n g s c h e d u l e s 	for 	t h e v a r i o u s
s p o r t s , 	a s s i g n i n g f a c i l i t i e s , 	a s s i g n i n g t h e c o a c h i n g s t a f f , 	o r d e r i n g s u p p l i e s ,
-16-
24	24 S e e N e w Y o r k U n i v e r s i t y , 	s u p r a ; 	Y e s h i v a U n i v e r s i t y , 	2 2 1 N L R B 1 0 5 3 ,
91 LRRM 1017 (1975).
25	25Formerly, Ed. Code Secs. 13080 et seq., repealed by Stats 1975, Ch. 961,
Sec. 1.
26	26See Sweetwater Union High School District, supra; and Los Angeles Unified
School District, EERB Decision No. 5, November 24, 1976.

developing the budget, 	coordinating the campus program with the other colleges
in the state involved in the same sports league, enforcing the rules and
regulations of the athletic program, and making travel arrangements for students
involved in intercollegiate sports. 	Athletic directors allocate the budget to
the various sports activities and may make some direct purchases from outside
suppliers of their choice without review by others.
Athletic directors interview the candidates for coaching positions and
make recommendations regarding hiring to the dean; the recommendations are
generally followed. 	They may recommend termination of an employee through the
evaluation process or grievance procedure. 	The athletic director of American
River College may determine whether a coach should continue with a particular
sport, be transferred, be promoted or be relieved of his coaching duties.
These decisions are not generally independently reviewed. 	Athletic directors
at all three colleges are involved in the first step of the grievance procedure.
Athletic directors assign work to and develop the class and coaching
schedules of the coaches. 	Such assignments are generally adopted by the super-
vising dean without independent investigation. 	The athletic director also
schedules the extra coaching assignments of the coaching staff. 	In this
connection, 	the athletic director can allocate a fixed amount of overtime hours
among the various coaches.
Athletic directors attend supervisory meetings conducted by the dean of
student personnel services. 	They also meet together to set up rules and regula-
tions by which they operate the various athletic programs. 	In addition to
these meetings, 	the athletic director may require the coaches reporting to him
to attend special meetings he may call.
Athletic directors possess a standard teaching credential and do not have
an administrative credential. 	All three athletic directors are paid on the
faculty salary schedule plus the division chairperson stipend.
Athletic directors clearly act in a supervisory capacity. 	They effectively
recommend the hiring, 	firing and discipline of unit employees and are the first
step in the grievance procedure. 	They make coaching assignments which are
generally not subject to further review.
Accordingly, we conclude that athletic directors are supervisors within
the meaning of the EERA and should be excluded from the negotiating unit at issue.
-17-

Financial Aids Coordinator
The District seeks to exclude financial aids coordinators from the unit as
management employees. 	Both the Association and the Federation would include
this classification. 	We conclude that financial aids coordinators are not
managerial employees and should, therefore, be included in the negotiating unit.
There are three financial aids coordinators in the District, one at each
college. 	In addition, a District coordinator of financial aids and a vice
chancellor are responsible for the overall coordination of the various financial
aid programs. 	Financial aids coordinators are paid on the administrative salary
schedule. 	The financial aid program is funded through a combination of state,federal
and local funds. 	The annual financial aids budget is approximately one half
million dollars at Cosumnes River College and one million dollars at American
River College. 	Financial aids coordinators distribute these funds to eligible
students in accordance with the rules and regulations of the funding sources.
The financial aids coordinator initially prepares a budget which is subject
to several levels of review at the college level, first by the associate dean
of special programs, then by the dean of student personnel services, 	the
associate dean of administration and 	finally, 	the college president.
Financial aids coordinators must keep abreast of the various federal,
state and local programs which provide financial assistance funds in order to
ensure that proper application for available funds is timely made. 	They must
comply with extensive rules and regulations both in soliciting and distributing
funds. 	They meet regularly with the district coordinator of financial aids to
update the District's regulations. 	At these meetings individual coordinators
may recommend programs for adoption; 	they have no authority either individually
or collectively to adopt federal or state sponsored special programs.
27	27
In interpreting Section 3540.l(g) of the EERA 	which defines management
employee, we concluded that a person must possess both of the functions 	delineated
27
Gov. Code Sec. 3540.l(g) states:
'Management employee' means any employee in a position having
significant responsibilities for formulating district policies
or administering district programs. 	Management positions shall
be designated by the public school employer subject to review
by the Educational Employment Relations Board.
-18-

in that section in order to be excluded from negotiating rights as a management
employee.LO	LO
In the instant case, 	financial aids coordinators possess neither
function. 	We conclude that they are not management employees within the
meaning of Section 3540.1(g).
While the record establishes that financial aids coordinators participate
in discussions where policy alternatives are apparently aired, we do not view
such participation as equivalent to possessing "significant responsibilities
for formulating" that policy. 	Mere participation, even on a regular basis,
does not vest the participant with significant responsibility.
Neither do financial aids coordinators have significant responsibilities
for administering district programs within the meaning of the EERA. 	It appears
that their administrative duties consist primarily of assuring compliance with
voluminous and detailed instructions prepared by the various funding sources
and subject to regular and rigorous review. 	They apparently possess no dis-
cretion to deviate from District policy.29
Accordingly, we conclude that financial aids coordinators are not managerial
employees within the meaning of the EERA and should be included in the negotiating
unit.
Public Information Officer
The District seeks to exclude the campus public information officers from
the unit as confidential employees. 	The employee organizations seek their
inclusion in the unit. 	We find their responsibilities do not render them
confidential employees.
Each college employs a full-time public information officer who reports
directly to the college president. 	The district also employs an administrative
assistant/management information who reports directly to the chancellor and
serves as the public information officer for the district.
The campus public information officers act as each president's communica-
tions officer to the campus and community and assist with intercampus
communications necessary for the day-to-day operation of the colleges. 	Each
college public information officer is primarily responsible for releasing
"news events, coming events, accomplishments of students and staff, and other
30matters of interest on their respective campuses...."30
28Lompoc Unified School District, EERB Decision No. 13, March 17, 1977.
29See Eastern Camera and Photo Corp., 140 NLRB 569, 52 LRRM 1068 (1963).
30	30LOS	r,,s Rios Community College District Administrative Regulation 1111.
-19-

The public information officer attends administrative council meetings
with administrators and the admissions officer (at Cosumnes River College)
or the various deans (at American River and Sacramento City Colleges). 	The
primary purpose of these meetings is the dissemination of information from
the chancellor's meetings and discussion 	of campus regulations. 	On occasion
employer-employee relations of an unspecified nature are discussed. 	The campus
public information officer may also attend district-wide meetings chaired by
the chancellor, but nothing in the record indicates that matters concerning
employer-employee relations are discussed at these meetings.
At American River College, 	the president has on occasion discussed dis-
ciplinary actions with the public information officer in order to ascertain
his opinion of faculty reaction. 	The president has also discussed grievances
with the public information officer. 	The president of Cosumnes River College
intends to meet regularly with his public information officer to discuss such
matters as negotiations, grievances and strike plans. 	However, the president
was not at the time involved with District negotiations and testified that
such plans for his public information officer were for some time in the future
and had not yet become a regular practice. 	Through attendance at various
administrative meetings, and in service as an aide to the president, the public
information officers are sometimes privy to information which the District
would not want released to employee organizations.
Government Code Section 3540.l(c) defines a confidential employee as one
"...who, in the regular course of his duties, has access to, or possesses
information relating to, his employer's employer-employee relations." 	Confidential
employees are not employees within the meaning of the EERA and are thus precluded
from exercising the rights granted by the Act to other employees.31 Since exclusions
from a broad grant of rights by the legislature must be strictly construed,32	32
we view the language of Section 3540.l(c) narrowly.
31Gov. Code Sec. 3540.l(j).	1(j).
32City of National City v. Fritz, 33 Cal.2d 635 (1949); Valdez v. Federal
Mutual Insurance Co., 272 Cal.App. 2d 223, 77 Cal.Rptr. 411 (1969).-
- - -- -
-20-

In order to be designated as confidential, an employee must function in that
capacity for more than a "fraction" of the time.
33
Further, where an employee
is not presently engaged in duties warranting exclusion from the unit as
confidential, but merely faces that possibility in the future, the employee
will be included in the unit.34
There is no mention of any responsibility even arguably within the ambit
of employer-employee relations contained in the job description of public
information officer. 	The mere assertion that the president of one college has
elected to utilize the public information officer as a "sounding board" does
not invest the public information officer with job responsibilities of a
confidential nature. 	Moreover, since negotiations occur on a district-wide
basis, articulation of the District's position must necessarily be performed
at the District level rather than at the campus level by the public information
officer.
In sum, 	the evidence does not convince us that the public information
officers at the campus should be designated confidential employees. 	While at
times these individuals may have tangential contact with certain confidential
matters concerning employer-employee relations, 	the evidence suggests that the
bulk of the public information officer's time is spent on the accumulation,
preparation and dissemination of information to the public concerning campus
events at each of the colleges. 	We therefore include such persons in the
unit.
DISSENT
Summer School Instructors
I disagree with the majority's exclusion of the classification of summer
school instructors from the negotiating unit. 	The factors relied upon by the
majority to exclude summer faculty are almost uniformly true of those part-time
33See Meramec Mining Company. 134 NLRB 1675, 49 LRRM 1386 (1961); Swift &
Company, 129 NLRB 1391, 47 LRRM 1195 (1961) .
34	34Se	Seee America	Americann Radiator and Standard Sanitary Corp., 119 NLRB 1715, 1719,
41 LRRM 1416 	(1958).
-21-

faculty we have included in the unit. 	As the majority notes, summer faculty are
selected by the dean of the evening college, just as are part-time evening faculty.
Similarily, 	first preference is given to those who teach full-time during the
academic year. 	Second preference is given to "off-campus" (i.e. evening division)
faculty. 	In fact, when asked how summer session instructors were recruited, the
vice chancellor of personnel testified, "Very similar fashion as to the Evening
College instructors...."
The employment contract signed by summer session instructors is virtually
identical to that signed by part-time evening instructors. 	The district policy
regarding exceptions to the 20 student minimum contained in both contracts is
equally applicable to summer and evening courses. Like evening instructors,
summer faculty sign a new contract for each term employed. 	Further, 	the majority's
assertion that "summer session instructors have no expectation of future employment
as summer session instructors" is contradicted by the faculty manuals. 	The
American River College Faculty Manual cogently states:
...The [American River College] day instructor who has taught
summer session at least five hours a week (semester basis) in two
consecutive summer sessions drops to the lowest recruitment priority
for one summer.
A similar statement is contained in the Cosumnes River College Faculty Handbook.
Such statements are obviously unnecessary unless faculty regularly seek to teach
summer courses. 	Furthermore, a comparison of the regular day 1975-1976 faculty
directory with the 1976 summer session schedule at American River College reveals
that approximately 110 of the 203 summer session instructors were day faculty. 35
This leaves undocumented the number of summer session faculty drawn from the
group given second preference in employment, part-time evening faculty.
It is also true, as the majority notes, that the summer session salary is
related to the regular day salary schedule. 	In fact, summer faculty are paid
from the evening college salary schedule. 	They receive 93% percent of the first
step of the full-time salary schedule. 	Like part-time evening instructors, 	they
are paid on the 15th of each month.
35
I have taken official notice of the 1976 summer class schedule directory.
-22-

Like the evening program, sunnier school is an integral part of the District's
educational program. 	The Sacramento City College Catalog states, "A balanced
offering of Sunnier Session classes, both day and evening, enables students to
accelerate their academic programs or to satisfy course or curriculum prerequisites. "
Similar expressions are contained in the catalogs of the other two colleges. 	A
comparison of the 1975-1976 American River College class schedules with the 1976
summer school offerings discloses that of the 67 departments offering courses
during the regular academic year, 44 offer summer school classes. 	There was no
department which offered only summer school courses.
Accordingly, 	I would include the classification of summer school instructors
in the negotiating unit.JV	JU
Coordinator of Special Programs
I also disagree with the majority's finding that the coordinator of special
programs is a supervisory employee. 	I would find this person to be a managerial
employee.
The coordinator of special programs, a position which exists only at
Sacramento City College, is responsible for the Educational and Opportunity
Programs and Services (EOPS), which apparently include a College Awareness Program,
an Alpha or ex-felon Program, 	a tutorial program and an Oak Park Outreach Center.
EOPS are apparently funded primarily by the state pursuant to a 1969 statute;
however, 	the College Awareness Program is funded by the District. 	Although the
program is not district-wide, all students in the district may avail themselves
of EOPS funds. 	The program is designed to recruit and retain educationally and
financially disadvantaged students. 	Its annual budget is approximately $375,000.
The coordinator of special programs designs a program, prepares the applica-
tion for state funds in accordance with the objectives of the program, and
directs the expenditure of those funds.
While the dean of student personnel services, 	to whom the coordinator of
special programs reports, reviews both the programs and the budget, disagreements
between the dean and the coordinator are apparently resolved by the college
president. 	The coordinator of special programs apportions the budget between
payment to recruited students directly for books and subsistence, 	student tutors
and counselor-aides, and clerical support. 	There are state-wide financial
36.
See Belmont Elementary School District, supra at pp. 13-15.
-23-

eligibility requirements for recruited students. 	The coordinator of special
programs applies the eligibility requirements and selects from among possible
students; his selections are not reviewed.
The coordinator of special programs supervises eight classified employees:
one coordinator and assistant of the Alpha (ex-felon) Program, 	three student
personnel assistants, and three clerical employees. 	In addition, there are
approximately four part-time student employees who work about 15 hours a week
who report to the coordinator of special programs. 	While the coordinator of
special programs discusses the work performance and any problems of those who
report to him with the dean of student personnel services, the coordinator
ordinarily handles these matters, including disciplinary action, without prior
review by the dean. 	Other employees, such as the work experience and veteran
affairs coordinators, included by agreement of the parties in the unit, possess
similar authority over persons who report to them.
All of the non-student employees, not just the clerical employees, under
the authority of the coordinator of special programs are classified. 	There is
no evidence that this person exercises any supervisory authority over certificated
employees. 	I find it extremely disconcerting that the majority casually excludes
from the certificated unit as a supervisor a person whose only authority is over
classified employees. 	This is particularly true here where there is clear
evidence that the coordinator of special programs is a managerial employee.
The coordinator of special programs possesses both of the criteria enunciated
in Section 3540.l(g) of the EERA and should, therefore, be excluded from the
negotiating unit as a management employee. 	The coordinator of special programs
has significant responsibility for formulating the policy for the educationally
and financially disadvantaged program. 	He establishes the policy and articulates
its dimensions; his role is essential to the promulgation of the policy.
In addition, 	the coordinator of special programs has significant responsi-
bility for administering the program. 	He apportions the budget with little or
-24-

no direction from his superiors; his selection of eligible participants in the
program is not reviewed.
Accordingly, 	I would exclude the coordinator of special programs from the
negotiating unit as a management employee.
Jerilou H. Cossack, Member
Coordinator of Special Programs
The District seeks to exclude the coordinator of special programs from the
unit as a management employee or, in the alternative, as a supervisory employee.
The Association and the Federation would include the position in the unit. 	We
conclude that the coordinator of special programs should be excluded from the
unit as a supervisory employee within the meaning of Government Code Section
3540. l(m). 	Having so concluded, we need not determine whether he is a management
employee within the meaning of the EERA.11
The position of coordinator of special programs exists only at Sacramento
City College. 	The coordinator of special programs develops educational opportunity
programs, prepares an application for program funds, submits the application for
funds and directs the expenditure of those funds. 	He reports to the Dean of
Student Personnel Services at Sacramento City College. 	Eight nonstudent employees
report to the coordinator of special programs, a coordinator and an assistant
coordinator of the ex-offender program, 	three student personnel assistants, and
11See Lompoc Unified School District, n. 24 and accompanying text, EERB
Decision No. 13, March 17, 1977.
-25-

three clerical employees. 	In addition, 	four student employees report to the
coordinator of special programs. 	They are student directors of tutorial
centers •who work about fifteen hours per week. 2
The coordinator of special programs directs all of these employees. 	In
respect to the nonstudent employees, 	the coordinator of special programs exercises
independent judgment in hiring by selecting from a list of qualified applicants
the name of a person to recommend to the President of the College. 	The four
student employees are finally selected by the coordinator of special programs
with the assistance of a student selection committee. 	He also has the authority
to reprimand and discharge student employees.
Government Code Section 3540.l(m) defines 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 the, or to
adjust their grievances, or effectively recommend such
action, if, in connection with the foregoing functions,
the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent
judgment.
We have decided in previous decisions that the satisfaction of any one of
the criteria listed in Government Code Section 3540.l(m) 	is sufficient to make
an individual a supervisor under the EERA.3
Since the coordinator of special programs directs employees, makes effective
recommendations on the hiring of employees and has the power to discharge some
employees, all of which authority is exercised "in the interest of the employer,"
more than one of the statutory criteria for supervisor is satisfied.44
In relying upon the extent to which the coordinator of special programs
directs employees, we do not rely upon his direction of clerical employees,
since the record does not indicate whether they receive any more than routine
clerical directions.
3Sweetwater Union High-School District, EERB Decision No. 4, November 23, 1976;
San Diego Unified School District, EERB Decision No. 8, February 8, 1977; Oakland
Unified School District, EERB Decision No. 15, March 28, 1977.
[,4 The fact that the coordinator of special programs is a certified employee
and the supervised employees are not, is immaterial. 	Gov. Code Sec. 3540.l(m)
only requires the supervision "in the interest of the employer" of "other employees.'
See Boston Herald-Traveler Corp., 70 NLRB 651, 657, 18 LRRM 1429, 1430 (1946).
-26-

Sunnier Session Instructors
Approximately 600 summer session instructors are hired by the District to
teach the sunnier session. 	The two enployee organizations seek to include summer
session instructors in the overall unit. 	The District opposes their inclusion.
Summer session instructors are recruited primarily from the regular full-
time staff and secondarily from what was described by a witness for the District
as "walk-ins." 	Summer session instructors are selected by the Evening College
Dean and report to the Associate or Assistant Dean of Evening and Summer Session.
They are hired on a one-summer basis and sign contracts with the District each
summer they work. 	Their positions are dependent on sufficient student enrollment.
If the enrollment in the sunnier session class is less than twenty, the class is
cancelled and the instructor is not paid. 	Thus, 	summer session instructors have
no expectation of future employment as summer session instructors.
The sunnier session salary schedule is related to the regular day salary
schedule, but unlike regular full-time instructors, who receive full fringe benefits
and part-time instructors, who receive some fringe benefits, summer school instruc-
tors receive no fringe benefits. 	Summer school instructors are not entitled to
use the District's grievance procedures.
To the extent that most sunnier session instructors are regular full-time or
part-time instructors who are in the negotiating unit deemed appropriate in this
decision and order, 	they are already eligible to vote for or against representa-
tion by an employee organization. 	Other sunnier session instructors have no other
employment with the District and would not even be eligible to vote in a repre-
sentation election, since the EERB normally conducts none during the sunnier, and
all eligible voters must at least be employees of the District at the time of the
representation election.
No evidence was presented on established practices or the effect of the unit
inclusion or exclusion of summer session instructors on efficiency of operations
in the District. 	We accordingly rely exclusively on the community of interest
criterion in resolving this issue. 	Accordingly, for the foregoing reasons, we
find lacking a community of interest between summer session instructors and
-27-

regular full-time and part-time instructors. 	We therefore exclude sunnier session
instructors from the unit.55
Reginald Alleyne, Chairman, concurring:
I concur in all aspects of the order.
In the principal opinion explaining the order, I agree with the analysis of
the following issues: 	division chairpersons, athletic directors, public informa-
tion officers, sunnier school instructors, coordinator of special programs, and
day-to-day substitutes.
Part- time/Full-Time
I do not agree with all of the part-time instructor portion of the opinion.
It does not come to grips with and reach a conclusion concerning the state of
current case law on the tenure issue.
I think it is undisputed that California law recognizes a part-time regular
status in community colleges.66 The circumstances under which one may acquire
that status is a matter very much in dispute, and on that issue court cases are
in conflict, as the principal opinion notes. 	But the fact that a part-time
regular status exists, apart from the question of how one achieves it is a
55In Belmont Elementary School District, EERB Decision No. 7, December 30,
1976, Petaluma City Elementary and High School District, EERB Decision No. 9,
February 22, 1977, and New Haven Unified School District, EERB Decision No. 14,
March 22, 1977, 	the Board excluded summer school teachers from units of regular,
full-time teachers in elementary and secondary schools. 	Nothing in the present
case 	suggests that the community of interest between sunnier session instructors
and regular instructors is any greater than it was in the foregoing decisions.
66See Ed. Code Sec. 87612; Peralta Federation of Teachers v. Peralta Community
College District, 69 CA3d 281, 285 (1977), Ferner v. Harris, 45 C.A.3d 363 (1975),
Vittal v. Long Beach Unified School District, 8 C.A.3d 112 (1970). 	I agree
generally with the analysis of the relevant judicial precedents on community
college tenure made by the hearing officer in San Joaquin Delta Community College
District, Case No. S-R-549, April 29, 1977, pp. 17-20 (unappealed proposed decision)
Los Rios Community College District Regulation No. 5231 provides that a
regular certificated employee may use the District's grievance procedure. 	Since
part-time instructors may be regular certificated employees, 	it is not apparent
to me that part-time instructors may not use the District's grievance procedure,
as the principal opinion states.
- 2 8 -

factor, among others, 	in favor of finding a community of interest between part-
time and full-time instructors in the District. 	I would so find, rather than
include this as an "uncertainty," as does the principal opinion.
Also, 	in reaching the conclusion described in the order, 	the opinion, after
first indicating that negotiating history pre-dating the EERA will be given little
weight, 	considers and gives weight to the fact that "proposals have been offered
by the 	[Certificated Employees Council] 	on behalf of the part-time instructors."
I would consider that evidence inconclusive, 	in accordance with our prior decisions.V7
Under the Winton Act, 	the CEC represented both part-time and full-time instructors
in no designated units, 	since the Winton Act contained no reference to units of
any kind. 	It follows that past Winton Act practice should continue to be regarded
as inconclusive in respect to present EERA unit issues.
. . Financial Aids Coordinato	. . 	r
I agree with most of the reasoning in support of the conclusion that the
financial aids coordinators are not management employees within the meaning of
the EERA. 	But I do not join my colleagues to the extent that they interpret the
word "or" in the definition of "management employee"
8V
to mean "and." 	No party
in this case argues that "or" should be read to mean "and" in the management-
employee definition.
The Legislature, 	in enacting that definition, 	surely knew the distinction
between the disjunctive and the conjunctive and the different consequences flowing
from the use of one over the other. 	Since the finding in this case is that the
financial aids coordinators "possess neither function" of formulating nor 	adminis-
tering with significant responsibility, 	it is not even necessary to consider
judicially amending the word "or" to mean "and."
77E.g., Los Angeles Unified School District, EERB Decision No. 5, n.5 and
accompanying text, November 24, 1976.
8
0
Gov. Code Sec. 3540.l(g) provides:
"Management employee" means any employee in a position having
significant responsibilities for formulating district policies
or administering district programs. 	Management positions shall
be designated by the public school employer subject to review
by the Educational Employment Relations Board.
-29-

In interpreting the word "or" to mean "and," the opinion cites the Board's
decision in Lompoc Unified School District.
8
In that case, the concurring opinion
1by Member Gonzales cites Houge v. Ford, 00 a California Supreme Court decision, for
the proposition that "the disjunctive particle 'or' should be construed as 'and'
in cases where such construction is necessary to carry out the obvious intent of
the Legislature." 	But that misinterprets what the Court said on the issue.
Actually, Houge v. Ford was a contract Interpretation case in which the
contract clause "protect or collect" was in dispute. 	The Court stated:
The cases cited by plaintiff to sustain his claim that
the word "or" should be construed here as meaning "and"
do not sustain his position. 	Resort to such unnatural
construction of the word "or" is sanctioned only when
such construction is found necessary to carry out the
obvious intent of the Legislature in a statute or the
obvious intent of the parties in a contract, when such
intent may be gleaned from the context in which the
word is used. 	. , 	In its ordinary sense, the function
of the word "or" is to mark an alternative such as
"either this or that". . . and such was the plain"
meaning of the word "or" as used by the parties here
in the phrase "protect or 	collect." 	[Emphasis added.]
Thus, the Board's interpretation of "or" to mean "and" is a departure from the
general rule and not the general rule, as the quote from the Lompoc decision
suggests.
To the unwary reader, it might appear that an argument over the distinction
between "or" and "and" is an example of a lawyer's exaggerated concern for
technicalities. Actually, 	the distinction holds important consequences for
those involved in disputes over the important and frequent question of who is a
management employee under Government Code Section 3540.l(g).
Some school and community college employees will be found to have significant
responsibilities for formulating district policies, but with no significant respon-
sibilities for administering district programs; others will be found to have
significant responsibilities for administering district programs 	but with no
responsibilities for formulating district policies. 	Reading "or" to mean "and"
9
EERB Decision No. 13, March 17, 1977. 	In a concurring opinion, Member Cossack
agreed with Member Gonzales' "rationale concerning the construction of 'management
employee'. 	. ." No party in the Lompoc case asked the EERB to interpret "or" to
mean "and."
1 0 44 C.2d 706, 	712 	(1955).
-30-

in Government Code Section 3540.l(g) will mean that those employees are not
management employees; only employees found to formulate district policies and
administer district programs will qualify as management employees.
That is not what the Legislature intended, as nothing in the EERA, remotely
suggests that the word "or" in Government Code Section 3540.l(g) should be given
any meaning other than its ordinary meaning. 	Indeed, the legislative history
on the general subject of collective bargaining in public employment demonstrates
that the use of "or" in the EERA definition of management employee followed
attempts to use "and" rather than "or" in bills preceding the bill that became
the EERA.11
Finally, the opinion offers no reason why the word "or" is given its ordinary
meaning in the EERA definition of supervisor12 but not in the EERA definition
of management employee.
We should follow legislative commands.
Reginald Alleyne, Chairman
Raymond J. Gonzales, dissenting in part:
I am in accord with the order in this case and supporting analysis in
all respects except that pertaining to part-time evening faculty. 	I agree
with both my colleagues that the division chairpersons are supervisors, that
11E.g. AB No. 1243 (1973) and AB No. 119 (1974), as introduced, using "and"
rather than "or" in the definition of management employee. 	See Final Report:
Assembly Advisory Council on Public Employee Relations (March 15, 1973), p.90,
recommending the use of "and" rather than 	or" in the management definition. 	The
use of "or" was thus not a word accident but a conscious choice of the Legislature.
12
Sweetwater Unified School District, EERB Decision No. 4, November 23, 1976;
San Diego Unified School District, EERB Decision No. 8, February 8, 1977; Oakland
Unified School District, EERB Decision No. 15, March 28, 1977; and the majority
opinion in this case on coordinator of special programs.
-31-

the athletic directors are supervisors, that the financial aids coordinator
is not a management employee, that the public information officer is a non-
confidential employee, and that day-to-day substitutes should be excluded
from the unit. 	I agree with Chairman Alleyne that the coordinator of special
programs is a supervisor and that summer school instructors should be excluded
from the overall unit.
Part-Time Faculty
I continue to subscribe to the majority definition of "classroom
teacher" put forth in the Belmont Elementary School District, decision. 	In
that decision I wrote for the majority that:
...the legislature limited the language "classroom
teachers" only to the regular full-time probationary
and permanent teachers employed by a district rather
than to the variety of types of employees who might
literally be described as classroom teachers.
No one disputes the fact that the primary function of part-time evening
instructors is to teach, but just as in Belmont Elementary School District,2
,.
Lompoc Unified School District, 	New Haven Unified School District, 	and
Petaluma Elementary and High School District, 	where long-term substitutes,
adult education teachers, home bound teachers and summer school teachers
also taught, we nevertheless excluded them from the overall unit of class-
room teachers on the basis of the community of interest standard because
they were not "classroom teachers" within the meaning of the Act.
On this point, community of interest, I find the position of the
majority concerning the part-time evening instructors in the Los Rios
Community College District to be totally inconsistent with the Board's
application of this standard in previous cases. 	Such factors as different
salary schedule, different hours, different teaching load, no fringe benefits,
different recruitment procedure, hourly as contrasted to salaried compensation,
employment contingent on sufficient student enrollment, different supervision,
LEERB Decision No. 7, December 30, 1976.
2Id.
3FERB Decision No. 13, March 17, 1977.
4DERE Decision No. 14, March 22, 1977.
SEERB Decision No. 9, February 22, 1977.
-32-

little or no job security and no required performance of extracurricular
activities have been the bases for this Board's previous exclusion of summer
and adult school staff from units composed primarily of full-time regular
teachers.
In Belmont, 	the majority found that summer school teachers should not
be included in the unit because they were hired on a one-summer basis. 	Also
they were on a separate salary schedule and received no fringe benefits. 	In
Petaluma, sunnier school teachers were excluded because they had no written
contracts; 	they were on a different salary schedule; their employment was
dependent upon sufficient student sign-up; and they received no fringe
benefits.
Adult education teachers in Lompoc were excluded because they had differ-
ent hours and teaching loads; they received no fringe benefits; they possessed
a different tenure system; 	they performed no extracurricular assignments;
they were not covered by layoff provisions; and their employment was conditioned
on sufficient student enrollment. 	In New Haven, the Board found that adult
education teachers were excluded because they received no fringe benefits;
they were paid on an hourly basis; 	they received no written contract; and
their employment was contingent on student sign-ups. 	In Petaluma, adult
education teachers were excluded because they were recruited differently;
they were dependent upon sufficient student enrollment for their employment;
they were under different supervision; 	and they had only a modicum of job
security. 	All of these factors cited by the majority in Belmont, Petaluma,
Lompoc and New Haven, as they relate to the exclusion of summer school and
adult education teachers exist to an equal or even greater degree in the
Los Rios Community College District in respect to the part-time evening
school instructors.
For example, in the Los Rios District, part-time evening school instructors
are under a separate recruitment and hiring procedure, 	including the fact
that they fill out separate application forms which are filed only with the
Office of the Evening College Dean and that they are screened separate and
apart from full-time applicants and in a different manner by the District;6
66The Faculty Manual of Sacramento City College for the 1976-77 school
year describes the selection of evening college instructors as follows:
(continued)
-33-

they are not given a regular contract, as they are dependent on sufficient
student enrollment for employment; 	they work different and comparatively
fewer hours; 	they do not receive major fringe benefits;7 they are paid on an
1. 	Based on the recommendation of Division Chairs and/or
authorized designee in consultation with the Associate
Dean and/or Assistant Dean, 	theI . . . . .
most qualified instructor
will be assigne	. .. 	d to teach the class. 	Final approval of
staff will be recommended by the Associate Dean of the
Evening College and Summer Session to the Dean of
Instruction and the President of the College.
2. Regular Sacramento City College day instructors will
have first consideration in filling vacant teaching
positions.
3. A Sacramento City College instructor will be assigned
to teach a class outside his regular teaching field and
division only upon recommendation of the Division Chairs
of both divisions involved. 	Exception: 	Assignment will
be made by the Associate Dean of Evening College and
Summer Session when Division Chairs are not available.
4. As a rule, regular day instructors NEW to Sacramento City
College will not be considered for extra service teaching
assignments in the Evening College until they have com-
pleted at least one semester of satisfactory teaching
service. 	Exceptions may be recommended by the President
or the Dean of Instruction.
5. 	Factors considered for employment of off-campus instructors
will include, but will not be limited to: 	educational
qualifications, recommendations, teaching experience, and
evaluations of prior service in the Evening College when
available.
In sum, 	there is no faculty participation in the interviewing and screening
process as with full-time faculty and, apparently, 	if any day administrative
staff is involved in the general selection of evening staff it is only vis-
a-vis the Associate Evening College Dean.
Thus, 	the fact that the majority finds that "one part-time person was screened
and selected through the same process utilized in selecting full-time faculty"
hardly demonstrates that this has been the District policy applied to the other
1,099 part-time instructors.
7All that is clear by way of fringe benefits is that part-time evening
instructors get pro rata sick leave. 	They do not get medical and dental
benefits which amount to approximately a $900-per-year value to the full-time
instructors. 	Industrial accident and illness leave is mandatory under state
law (Ed. Code Secs.1 87042 and 87781, formerly 13010 and 13468 respectively).
Impressive testimony regarding fringe benefits for evening part-time instructors
was given by Bernard Flanagan, Vice-Chancellor, Personnel Services. 	He testified
as follows:
(continued)
(continued) -34-

hourly basis which is substantially less than pro rata pay; they are not
expected to engage in extracurricular activities with students; they have
different supervision, reporting to the assistant or associate dean of the
Evening College; and quite significantly, they are not on a tenure track.
In addition to these aforementioned facts that they share with summer
school teachers and adult education teachers whose status was at issue in
previous Board cases, the part-time evening teachers in Los Rios have
different working conditions. 	They have no grievance procedure; they are
provided no office space; they are subject to a different evaluation procedure;
Q. Okay. 	And you've defined full-time employees, the
question now is if a part-time Evening Division instructor
taught more than 50% of a full load, 50% of 15, but less
than 60% of a full load, 15, would he receive any fringe
benefits?
A. No.
Q. And by fringe benefits what do you mean?
A. The medical and dental program and any other insurance
program that is available to day, regular day instructors.
Q. All right. 	Are part-time Evening Division instructors
entitled to Critical Illness Leave?
A. No.
Q. Are part-time Evening Division instructors entitled to
Exchange Teaching Leave?
A. No.
Q. Are part-time Evening Division instructors entitled to
Educational Improvement Leave?
A. No.
Q. Are 	part-time Evening Division instructors entitled
to take Research Grant Leave?
A. No.
Q. Are part-time Evening Division instructors entitled to
take Long Term Personal Leave?
A. No.
Q. Are part-time Evening Division instructors entitled to
take Conference and Meeting Attendance Leave?
A. No.
Q. Are part-time Evening Division instructors entitled to
use the District grievance procedure?
A. No.
(continued)
-35-

they have no guarantee of reemployment nor rights to a retention hearing;
they are not required to hold specific office hours; they have no expected
role in faculty government; they are not required to attend regular faculty
meetings; 
C	8
and they are not required or expected to participate on the college
advisory committees. 	For these reasons their exclusion from the regular unit
of day school teachers is as compelling, if not more so, than it was for
summer school and adult education teachers in Petaluma, Belmont, Lompoc,
and New Haven.
And while it is true that in our prior Belmont decision we included two
part-timers within a unit of other certificated staff, there existed dis-
tinguishable bases for doing so. 	In that case the record showed that
part-timers received pro rata salary and fringe benefits and enjoyed the
same reemployment rights as did the regular teachers. 	I think that it is
also significant to note that in Belmont the two part-timers constituted less
I
than 1.3% of the teachers while in the Los Rios District they constitute more
I
than 60% of the instructors in the District. 	At this rate, the appropriate
question should really be whether or not full-time teachers should be included
in a unit of part-time evening instructors.
Even more ludicrous is the fact that one member of the majority in
this case agrees with me as to the exclusion of summer school teachers, as
8 The extent to which part-time evening instructors are involved in
meetings with other faculty, I think, is best captured by the testimony of
one part-time evening instructor:
Q. Do you attend any division or departmental meetings?
A. I have.
Q. What, under what circumstances do you attend those
meetings?
A. In the spring of 1972 I attended a departmental meeting
on request of the departmental chairman or the division
meeting on the request of the division chairman. 	And
since then it's been on a drop-in basis. 	I don't get
announcements of their meetings.
Q. Are there department meetings?
A. Occasionally, once or twice a year.
Q. Do you attend such meetings?
A. No.
-36-
,I

this member has previously done in Belmont and Petaluma. 	I find it incon-
ceivable that a Board member would, in the same decision, exclude summer
school teachers while including part-time evening instructors since the
record in this case clearly shows that the employment relationship between
summer school instructors and the District is basically the same as that
between the part-time evening instructors and the District; 	As the record
shows, summer session instructors are hired along with evening college
instructors through the Evening College and Summer Session program. 	They
are recruited like the evening instructors, chosen first from day instructors,
second from walk-ins, and then from District files. And the actual selection is ultimately made
They receive no fringe benefits. 	They are evaluated in a manner similar to
the evening part-time instructors both as to the frequency of evaluation and
as to the designated evaluators. 	They are not entitled to use the grievance
procedure. 	And lastly, like the evening part-time faculty, summer school
instructors receive no monetary credit for length of service which on the
day faculty schedule amounts to 16 automatic steps of salary increment.
Further, 	like the part-timers, they are paid on an hourly basis only. 	It
seems, therefore, inconsistent under these circumstances that a Board member
would vote to include in the same unit one and not the other classification
of instructors in dispute in this case.
A further inconsistency concerns the matter of remuneration for part-time
evening instructors as contrasted to full-time instructional staff. 	The
majority attempts to overcome the significant difference in compensation between
the two groups by arguing that a relationship between the day faculty pay
schedule and the evening faculty pay schedule exists. 	This so-called rela-
tionship exists by virtue of the fact that the part-time evening instructor's
pay schedule relates to the summer faculty pay schedule and the summer faculty
pay schedule, in turn, relates to the day faculty pay schedule. 	Therefore,
the evening faculty pay schedule relates to the day faculty pay schedule.
This simplistic syllogism fails, not only because it is far-reaching but
because the Board has determined that summer school staff are to be excluded
in this case. 	Similar though less compelling reasoning applies regarding
the division chairpersons' stipend. 	The record shows that it is also "tied"
to the day schedule. 	Yet the Board has determined that these individuals
-37-

should not be part of the overall unit.
In addition to the factual justifications for excluding the part-time
evening instructors from the regular unit of classroom instructors, 	there
are other compelling reasons of a broad policy nature for doing so.
The majority has adopted a formula with a view towards including
"persons who continually, semester after semester, teach in the community
college [because they] have demonstrated their commitment to and interest
in its objectives." 	In fact, the majority's formula is inconsistent with
this purpose. 	There is nothing in the majority's formula that guarantees
a part-time evening teacher's "commitment to and interest in [the] objectives"
of the community college. 	The formula does not require teaching "semester
after semester." 	Rather the formula would permit a part-time instructor
to be absent from the campus for three consecutive semesters and still be
in the unit with full-time instructors, since the formula only requires
that the part-time instructor be teaching in the current semester and to
have taught for two semesters in the previous 2% years.
Also under the formula established by the majority that would allow
part-time instructors who taught any number of units during three semesters
of the previous three years, it is conceivable that an individual could
teach as few as nine (9) units in the three-year period and be allowed in
the same certificated unit as a regular teacher who would be required to
teach ninety (90) units during the same period of time. 	Additionally,
full-time instructors are required to spend five hours per day on campus
five days a week. 	Over a three year period this equals 2,550 hours on
campus,
9
while the instructor teaching only nine units during the three
year period would be require	10	10 	d to spend only 153 hours on campus during this
same three year period. 	On the basis of documentary evidence, this
These calculations are determined by multiplying twenty-five hours per
week times the total number of weeks of instructional time over a six semes-
ter period (102 weeks). 	While a semester is considered to be 18 weeks, I
have excluded from these calculations one week per semester allowed for final
examinations and grading. 	The five hours per day requirement is established
by Governing Board policy presented in the record.
10	10The part-time teaching load in this example is determined by multiplying
the three hours per week times the total number of weeks of instructional
time over a three semester period (51 weeks). 	Again weeks of final examina-
tions and grading are excluded.
-38-

observation is all the more impressive when one considers that during the
1975-76 semesters at American River College and Sacramento City College,
between 55 to 60 percent of the evening instructors taught one to three
units which is generally equivalent to one to three formula hours.11	11
Further, 	if the number of units in the above illustration were translated
into dollars paid for teaching, 	even taking the highest possible amount paid
to part-time instructors ($426.24 per unit) and to full-time instructors
($833.33 per unit),12 the result would be that those part-time instructors
who are paid a total of $3,836 by the district in a three year period would
be placed in the same unit as the full-time instructors who are paid
$74,999 during the same three year period. 	This does not include an
estimated 11.7% of additional salary costs that the District pays in
traditional fringe benefits to full-time teachers beyond their regular
salaries.
To allow part-time evening teachers equal status in a unit with regular
day instructors is the grossest exaggeration of the community of interest
standard established by this Board in previous decisions. 	It is an exaggera-
tion not because salary alone should be used as a standard for determining
who should be in a given unit, but because teaching is clearly a full-time
employment interest of one set of individuals and is obviously only a supplemental activity for t
Only six of the 1,100 evening division instructors teach full time.
Conceivably these instructors would not be eligible to be in the unit if
they had not taught at Los Rios for at least two semesters within the
previous three years, but were teaching full time in the evening school at
the time of the election. 	Two hundred instructors are full-time teachers
in other districts and 370 are full-time day instructors in the Los Rios
Community College District. 	A total of 570 (51.8%) are regularly employed
Class schedules from this time period did not differentiate between
evening instructors per se and day instructors teaching evenings as part of
their full-time assignment. 	A statewide survey which did effectively do so,
however, produced similar results, namely that part-time instructors teach
approximately 4.5 hours per week. 	California Community and Junior Colleges
A s s o c , Report on a Statewide Survey About Part-time Faculty in California
Community Colleges 11 (March 1976).
IZ Calculations are based on the current District salary schedule for
certificated employees.
-39-

as teachers and are "moonlighting" for extra pay in the evening program at
Los Rios Community College District. 	The remaining 530 have no connection
with any educational institution other than the Los Rios Community College
District and are quite likely employed full time at other jobs or may depend
only on their part-time pay at Los Rios Community College District.
The fact that 200 part-time evening instructors are regularly employed
as full-time teachers in other districts can lead one to conclude that they
are most likely already in a certificated unit in those districts. 	It is
fair to assume that these teachers are employed in those districts that are
generally coterminous or contiguous with the boundaries of Los Rios Community
College District.13 What the majority position does in this case is to allow
these 200 individuals potential inclusion in units covering all regular
teachers in two districts. 	This results in an inequitable situation that
would permit these teachers to have "two full bites" at the taxpayers'
apple, 	since the same taxpayers are being assessed for the K-12 districts
and then separately for the Los Rios Community College District.
The ramifications of this go far beyond the Los Rios case. 	Statewide
there are approximately 27,532 part-time community college positions as
contrasted with 14,273 full-time teachers.14	14 It would appear that the per-
centage of those individuals teaching full time in one district and
"moonlighting" in a community college district is elsewhere about the same
percentage as the figure cited in this case.15	15 In addition, many of the
other individuals employed part time may also be employed by government
entities other than teaching institutions. 	Given the emergence of employee
unions in the public sector, it hardly seems fair that the taxpayer should
be forced to go to two separate negotiating tables for the same individual.
13 As demonstrated in the EERB files, of the 31 feeder districts that are
contiguous or coterminous with the Los Rios Community College District
boundaries, 28 have certificated units in place. 	The three districts that
do not have a certificated unit are Indian Diggings Elementary, Latrobe
Elementary and Silver Fork Elementary. 	These three districts together have
an average daily attendance of only 76 and constitute basically the "one
room school house."
14	14Supra note 11, at 5.
15	15The percentage of part-time teachers that are employed full time in
other teaching positions and are "moonlighting" at Los Rios is 51.8%. 	The
statewide figure is 47.8% of teachers "moonlighting" in community college
districts. 	Id. at 8. -40-

This is not to say that public employees should not have full collective
negotiating rights; rather it seems that the public should not be required
to give them full negotiating rights twice.
An equally significant point is the location of instruction done during
the evening program in the Los Rios Community College District and by extension in the other dist
are taught off the main campuses at such places as Mather Air Force Base,
Davis, Oak Park, El Dorado High School, South Tahoe High School, Placerville
High School and other off campus locations. 	This hardly leads to the
conclusion that there is significant interaction between the full-time day
faculty and the evening faculty.
In addition, I feel we would do well to profit from the experience of
other jurisdictions, both federal and state, in dealing with the problem of
part-time faculty in higher education. 	Preliminarily, I note the total
reversal of the National Labor Relations Board (NLRB) in New York University
from. . . . .	
its own precedents, the ultimate result being the exclusion of part-timers
from a unit composed of full-time and other professional staff, 	Critical
of the NLRB's initial approach to the part-time faculty issue, one writer
observed:
16	16
A detailed analysis of the part-time issue by the
Board in University of New Haven, Inc., where the
Board began its precedent of including part-time
faculty in the bargaining unit, might have lead
to 	a different 	conclusion, 	e.g., 	the 	creation 17
'of a separate unit for regular part-time faculty.
In a comprehensive recitation of NLRB case law, the same writer noted the
details:
Superficially, adjunct faculty perform the same
work as full-time faculty classroom teachers.
However, upon closer examination, there are sub-
stantial differences between the two groups which
include wages, fringe benefits, duties, education,
working conditions, bargaining history, extent
of participation in institutional governance,
and organizational treatment by the university.
16205 NLRB No. 16, 83 LRRM 1549 (1973).
17	17Kahn, The NLRB and Higher Education; 	the Failure of Policymaking
through Adjudication, 21 U.C.L.A. L. Rev. 63, 114 (1973).
-41-

These differences could be sufficient to allow the
NLRB to exclude adjunct faculty from a full-time unit.
Moreover, 	the salary schedules of the part-time and
full-time faculty are quite disparate. 	The full-time
professor receives substantially more remuneration for
teaching the same course than an adjunct professor.
See University of New Haven, Inc., 190 NLRB No. 102,
at 3 (1971). 	In the vast majority of institutions,
part-time faculty are not eligible for fringe benefits
accorded the full-timers. 	Fordham Univ., 193 NLRB
No. 23, at 21 (1971); University of New Haven, Inc.,
190 NLRB No. 102, at 3 (1971). 	A similar disparity
in wages and fringe benefits has contributed to Board
findings that part-timers should not be included in
a full-time unit. 	See NLRB v. WGOK Inc., 384 F2d 500
(5th Cir. 1967); Bowma	
- 	n Transp., Inc., 166 NLRB 982 (1967);
Central Mut. Tel. Co., 116 NLRB 1663 (1956). 	In Mon-
Clair Grain & Supply Co., 131 NLRB 1096 (1961), the
Board found an insufficient community of interest with
respect to a part-time worker on the sole basis of a
disparity in fringe benefits.
Although the full- and part-time faculty both perform
the same basic teaching and grading function, full-
time faculty are generally expected to perform
additional duties which may include counseling,
advising, and registering majors in their department;
participating in departmental and school meetings;
serving on committees; proctoring examination;
maintaining fixed office hours; 	and recommending
candidates for degrees. 	See Record at 51, 53,
Fairleigh Dickinson Univ.,205 NLRB No. 101 (1973);
Record at 67, 70, 75, 77, 113, 138. 	University of
New Haven, Inc., 190 NLRB No. 102 (1971).
There can be no reasonable expectation of permanent
employment by the vast majority of part-time faculty.
Their employment is expressly conditioned upon the
momentary need for their services and they have no
reasonable expectation of being continued from
semester to semester. 	If enrollment in a course
taught by a part-time faculty member falls below
a university's minimum standard, the course is
usually dropped. 	See Record at 69-70, Fairleigh
Dickinson Univ., 205 NLRB No. 101 (1973). 	The
general experience in higher education is that
the turnover rate among part-timers is signifi-
cantly greater than full-time faculty. 	In
Central Mut. Tel. Co., 116 NLRB 1663 (1956),
the Board excluded a part-time employee from the
unit as a "temporary or casual" employee because
he lacked such reasonable expectancy, 	even though
-42-

he had continuously worked in his part-time capacity for
three years. 	See also NLRB v. W30K, Inc., 384 F2d 500
(5th 	Cir. 	1967).
In addition, the working conditions for part-time and
full-time faculty usually differ substantially. 	This
difference ranges from the workload and the availability
of secretarial help and office space to the availability
of tenure and the expectancy of permanent employment.
The NLRB has, in the past, noted that one indication of
a separate community of interest is that "the Employer
treats this group both in its organizational framework
and in fact as a separate group." 	ITT Fed. Elec. Corp.,
167 NLRB 350, 351 (1967). 	A college or university
clearly distinguishes between full-time and part-time
faculty. 	For one, the hiring procedure is completely
different for part-time and full-time applicants.
Compare the description of full-time hiring in
T. Caplow and R. McGee, the Academic Marketplace,
(1965) with Adelphi Univ., 195 NLRB No. 107, at
10-11 (1972). 	There are also differences in contract
handling, salary increases and promotions and salary
payments.
When all of the differences between part-time and full-
time faculty are considered and the percentage of the
unit constituted by part-timers is examined, 	there appears
a substantial conflict of interest between the two
groups which was not adequately considered by the NLRB.LO
Similarly, several public employee relations boards or commissions have
excluded or approved exclusions of part-time faculty from a unit of full-time
faculty. 	In the Board of Higher Education of the City of New York, in which
the jurisdiction of the employer extended to seven senior colleges and to
six community colleges, New York's Public Employee Relations Board upheld
the original decision of its Director of Representation which separated the
permanent instructional staff from the nonannual lecturers for purposes of
collective negotiations.19 The PERB reasoned as follows:
18
LU
Id. 	Decisions subsequent to New York University reflect continuing
adherence by the NLRB to its ruling in that case. 	See e.g. University of
San Francisco, 207 NLRB 12, 84 LRRM 1403 (1973); Point Park College, 209
NLRB 1064, 85 LRRM 1542 (1974); University of Miami, 213 NLRB 634, 87 LRRM
1634 (1974); Remsselear Polytechnic Institute, 219 NLRB 712, 89 LRRM 1879
(1975); Yeshiva University, 221 NLRB 64, 91 LRRM 1017 (1975.
19PERB Case No. £-0008, 2 PERB 3467 (N.Y. 1968).
-43-

We believe that differences between faculty-rank-status
employees and non-annual lecturers - whether they teach
more or less than six hours a week - are of sufficient
magnitude to preclude their being placed in the same
negotiating unit. 	Faculty-rank-status personnel are
all permanent staff in that they are tenured or hold
positions leading to tenure. 	Non-annual lecturers, on
the other hand, are appointed and reappointed for only
one semester at a time. 	Faculty-rank-status employees
receive many and various fringe benefits, the cost and
value of which are considerable. 	Non-annual lecturers,
on the other hand, do not receive these fringe benefits.
Faculty-rank-status personnel exercise important res-
ponsibilities regarding the operation of the University
by their service on departmental committees. 	Non-annual
lecturers on the other hand, rarely serve on departmental
committees. 	Faculty-rank-status personnel have their
primary personal commitment to the City university:
non-annual lecturers, on the other hand, are likely
to be full-time high school teachers working at the
University at night, or businessmen, accountants, lawyers,
or graudate students whose primary professional commit-
ments 	are 	elsewhere.20
Focusing on primary commitment, 	the New Jersey Public Employees Relation
Commission affirmed a hearing officer's recommendation regarding exclusion
20Id. 	Subsequent to the formal hearing, the Director of Representation
summarized his reasons for excluding part-time faculty as follows:
At the formal hearing it was made clear that, whereas
the permanent staff had tenure, 	temporary staff do not
and thus may be "dropped" for any reason. 	Much of the
temporary staff has full-time employment elsewhere and,
generally, considers employment at universities as a
secondary source of income. 	Thus, only the permanent
staff is expected to participate in committee work,
conferences, research and writing, and in the develop-
ment and administration of teaching policies. 	Further,
the wages of the permanent staff are determined in a
different manner than the wages of a temporary staff,
and fringe benefits for the two groups are quite
different with much of the temporary staff not being
entitled to most of them. 	The desire of many of the
temporary staff to initiate fringe benefits seems
to me to create a clear conflict with the desire of
the permanent staff to improve them, in terms of
competition for available funds. 	While these two
groups, as teachers, have some interests in common,
I felt that the major differences in important
terms and conditions of employment create a sharp
(continued) 	- 44	-44-

of part-time Instructors in State Colleges of New Jersey;
In my opinion, the part-time teachers should be
excluded. 	Those who are also full-time teachers,
will have their interests represented in the
full-time unit. 	The others have a less vital
interest in representation. 	Their earnings as
part-time teachers are usually not the principal
source of their livelihood and those who are
adjunct appointees have only a temporary inter-
est. 	It would be unfair to the full-time teachers
if part-time or temporary employees have an equal
voice 	in choosing a representative.21
And in other jurisdictions, the overseeing boards or commissions of public
employer-employee relations have approved stipulations to exclude part-time
faculty.22	22
In sum, while the majority might point to some factors which distinguish
other jurisdictional case law, primarily NLRB precedent, from the present
case, those distinctions do not outweigh the many factual similarities between
such cases and the one we decide today. 	New York University23 and its progeny
as well as public sector case law have primarily focused on tenure, benefits,
governance, primary work commitment, compensation, and general work conditions.
Los Rios is distinguishable only on the question of governance where the facts
(continued)
conflict of interest which mandate separate representation.
Klein, Unit Determinations in New York State under the Public
Employees Fair Employment Law, in Proceedings of New York
University 21st Annual Conference on Labor 495 (Christensen
ed. 1968) as cited by Kahn, supra, note 17, at 113.
21	21 Report and recommendations of the Hearing Officer at 8, State Colleges
of New Jersey, PERC No. 1 (New Jersey PERC, April 9, 1969). 	See also South-
western Community College, PERB Case No. 308 (Iowa 1975) and Northwest Iowa
Vocational-Technical School, PERB Case No. 228 (Iowa 1975) in which part-time
faculty in both districts were excluded.
22	22 See e.g. Community College of Philadelphia, 7 PPER 116, Case No.
PERA-R-7258-1 (Penn., 1976), where the PERB in that state approved a stipulation
to exclude all part-time faculty teaching less than nine hours; Bucks County
Community College; 1 PPER 91, Case No. PERA-R-943-E (Penn., 1971), where the
PERB approved the exclusion of all part-time faculty; State University System,
Case No. 8H-RC-745-0002 (Fla., 1975), where the Florida Public Employee Relations
Commission approved the exclusion of all part-time instructors who had not
been employed at least half-time in three of the preceding four quarters.
23
Supra note 16. -45-

show some measure of participation by part-time faculty in committee-work
and college governance. 	Query, however, as to the comparative significance
of this factor in view of various Education Code provisions which preclude
faculty participation in matters deemed important in New York University?
Similarly, in view of the fact that the parties have failed to present us
with sufficient evidence to allow us to ascertain the extent to which the
faculty senate and committees play a key role in ultimate policymaking and
to ascertain the degree of involvement by the overall faculty let alone the
part-time faculty, in such matters, I place little weight on this factor.
Further, while several cases have been filed with the courts of this
state concerning the issue of part-time tenure in community colleges relative
to Education Code Section 87482 (formerly Section 13337.5), in which the
results have been conflicting,25 I feel that we are compelled to follow the
facts as they exist in this case.26 Therefore, we should not presume the
ultimate resolution of this issue by either the Judiciary or Legislature.
Conclusion
Public education and its administration will be ill-served by allowing
part-time evening instructors in the same unit with regular full-time staff.
First, the grouping together of employees with such disparate interests
is contrary to the overall purpose of this Act as stated in Government Code
Section 3540, namely "to promote the improvement of personnel management and
employer-employee relations," in that it jeopardizes the possibility of smooth
collective negotiations for all concerned parties. 	It is quite likely that
in comparison to the 740 full-time instructors, the part-time staff will
constitute the voting majority and thus dominate the unit. 	Thus, in contrast
to Belmont where two part-time teachers in the day school were granted
inclusion in the unit of certificated employees on the basis of different
and compelling facts, 	the significant number of 1,100 part-time evening
teachers in Los Rios cannot easily be overlooked.
24Ed. Code Secs. 72285 (1010.6) and 72283 (1010.4).
25See e.g. Ferner v. Harris, 45 Cal. App. 3d 363 (1975); Coffey V. Governing
Board of San Francisco Community College District, 66 Cal. App. 3d 279 (1977);
Peralta Federation of Teachers v. Peralta Community College District, 1 Civil
38508 (April 25, 1977).
Lu	LU See Ed. Code Sec. 87742 with reference to part-time employees as temporary
instructors. 	It states:
Governing boards of community college districts may
dismiss temporary employees at any time at the pleasure
of the board.
-46-

Second, because of the different employment interests of these two
groups, 	I would not so easily dismiss the argument that to include both
groups of employees in the same unit would impair the efficiency of the
District's operation, 	Clearly, the District has seen fit in the past to
administer two separate programs which almost totally correspond to the
employment conditions of both groups, 	the day program employing the full-
time faculty and the evening program employing the part-time faculty.
The majority's reference to excessive fragmentation is misplaced.
No separate unit of part-time teachers is being sought here. 	But even
if it were, 	it would hardly seem consistent to argue excessive fragemen-
tation here, 	in light of our decision in Sweetwater Unio. . .
n High School
District
g7
26	26
where we established three ...units from a group of 672 employees.
In this vein I note that, in one case, Oakland Unified School District,
the Board not only excluded children center teachers from the unit on the
basis of their not being "classroom teachers," but it also allowed for a
separate unit of children center teachers. 	The majority in that case held;
27
Our decision to allow a separate unit of children's
center employees is determined primarily by the
community of interest criterion. 	We find compelling
those facts which clearly indicate the separate and
distinct nature of the children's center program. 28
Thus, 	if the part-time faculty in this case had been separately sought, 	there
is no assurance that the Board would not find a sufficient and distinct
community of interest among the part-time faculty to justify a separate unit.
On this basis alone, 	I think this case is distinguishable from future cases
concerning part-time faculty in California's community colleges that may have
occasion to be reviewed by this Board. 	Consequently, while I oppose the
inclusion of part-time faculty in the overall unit of certificated employees
and reject their legal definition as "classroom teachers," I do feel that
a case might be made for a separate unit of part-time evening employees.
26FERB ffi133gz	 Decision No. 4, November 23, 1976.
27EER	EER	BBDecision No. 	15, March 28, 	1977.
28,Id. 	a t 25.
-47-

Lastly, while it is true that community college districts throughout
the state have in recent years seemingly conducted questionable employment
practices regarding part-time teachers in order to meet their own fiscal
needs, resulting in a 150 percent increase of part-time teachers over the
last four years, in my view, the elimination of this problem does not lie
in including part-time faculty in an overall unit with full-time faculty.
I have indicated that the taxpayers should not be placed in the position
of having to give public employees "two full bites" of the apple, 	I do
not, however, reject the possibility of giving employees perhaps a "bite-
and-a-half." 	Or to put it in less simplistic terms, commensurate with
their status, part-time employees could conceivably be granted the right
to negotiate with the employer over strictly part-time issues. 	But to
allow, as the majority has done in this case, part-time faculty to parti-
cipate equally with the regular full-time faculty of the District, is to
totally disregard the community of interest standard so well established
in our previous decisions.
RaymondI J. 	Gonzales Member 	V
-48-
/

ORDER
The Educational Employment Relations Board directs that:
1. 	The following unit is appropriate for the purpose of meeting and
negotiating, provided an employee organization becomes the exclusive
representative:
All certificated employees, including full-time instructors,
part-time instructors who have taught at least 	the
equivalent of three semesters of the last six semesters inclusive,
financial aids coordinators and campus public information
officers; excluding day-to-day substitutes, division chair-
persons, athletic directors, the coordinator of special
programs, and summer school instructors.
2. 	Division chairpersons are supervisory employees within the meaning
of Section 3540.l(m) of the EERA.
3. 	Athletic directors are supervisory employees within the meaning of
Section 3540.l(m) of the EERA.
4. 	Financial aids coordinators are not management employees within the
meaning of Section 3540.l(g) of the EERA.
5. 	Campus public information officers are not confidential employees
within the meaning of Section 3540. l(c) of the EERA.
6. 	The coordinator of special programs is a supervisory employee within
the meaning of Section 3540.l(m) of the EERA.
7. 	Within 10 workdays after the employer posts the Notice of Decision,
the employee organizations shall demonstrate to the Regional Director at
least 30 percent support in the above unit. 	The Regional Director shall
conduct 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.
Educational Employment Relations Board
by
Stephen Barber
Executive Assistant to the Board
6/9/77
Dated