Washington Unified School District (PERB 0027E)

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STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
WASHINGTON UNIFIED SCHOOL DISTRICT,
Employer,
and
WASHINGTON ASSOCIATION OF PUPIL SERVICES
EMPLOYEES,
Employee Organization,
and
WASHINGTON EDUCATION ASSOCIATION, CTA/NEA,
Employee Organization.
Case No. S-R-93
EERB Decision No. 27
September 14, 1977
Appearances: 	0. H. Fifi Zeff, Deputy County Counsel, for Washington Unified
School District; George E. Dalton for Washington Association of Pupil Services
Employees; Richard Gilbert for Washington Education Association, CTA/NEA.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION AND ORDER
This case is before the Educational Employment Relations Board on
Washington Association of Pupil Services Employees' 	(WAPSE) single exception
to the hearing officer's attached proposed decision concluding that pupil
services employees are appropriately included in a unit with other certificated
employees. 	Other issues were decided by the hearing officer, but no party
filed exceptions in respect to them. 	The Board has considered the record and
the attached proposed decision in light of the exception.

On the matter excepted to , 	the hearing officer's decision is 	substantially
in accord wi th prior precedent of the Board. 	See Grossmont Union High School
1District. 	For that reason, 	the hearing officer's proposed order is adopted
as 	the order of the Educational Employment Relations Board.
~/Reginald Alleyne, 	Chairman r
Jerilou H. 	Cossack, Member, 	concurring :
A proposed .decision was 	issued by an Educational Employment Relations Board
(EERB) 	hearing officer on April 11, 	1977. 	Wash i ngton Association of Pupil
Services Employees 	(WAPSE ) 	thereafter filed exceptions to the hearing officer's
decision that pupil 	services employees are appropriately included i n a unit
with other certificated employees.
Having considered the record as a whole and the attached proposed decision
in light of the exceptions f i led, 	I affirm the hearing officer's order that pupil
services employees are appropriately included in a unit with other certificated
employees .1 Grossmont Union High School District, 	EERB Decision No. 	11, March 9,
1977 .
WAPSE contends 	that pupil services employees constitute an appropriate unit
and that to find otherwise is an abuse of the Board's discretion. 	WAPSE argues,
in effect, 	that failing to find appropri ate a separate unit of pupil services
employees 	is 	tantamount to applying a standard referred to as 11 the most appro-
pr i ate " unit , while the EERA mandates a standard commonly called "an appropriate 11
unit . 	I find no merit in this argument.
,.. 	----
1/EERB Decision No. 	11 , March 9, 1977. The Board's Grossmont dec i sion may
be appealed to the judi.ciary . 	The Board denies WA.PSE' s 11 motiori to delay 11
any action on its exceptions in this case, 	"or any further action on any aspect
of the Washington Unified School District case until a final resolution of the
Grossmont case is reached. 11
._,
1since guidance speci alists do not possess significant responsibilities
for formulating district policies within the meaning of Gov. 	Code Sec . 	3540.l (g)
as interpreted in Lompoc Unified School District, 	EERB Decisi on No. 	13, March 17,
1977, 	I 	find it unnecessary to determi ne whether Washington Education Association
(WEA) 	has standing to contest the di strict's failure to designate guidance
specialists as management.
-2-

Section 3541.3(a) of the EERA grants the Board broad discretion to fashion
appropriate negotiating units.
2
This discretion is limited by Section 3545(a),
3
which requires that we balance three equal criteria in determining appropriate
units: 	the community of interest between and among employees, 	the established
practices of employees, 	and the effect of the size of the unit on the efficient
operation of the school district. 	These criteria, while analogous to those of
other federal and state statutes, are unique to the EERA and our obligation is
to apply them to the facts of each case.
In the instant case, any differences between pupil services employees and
teachers are no greater than those which exist between various categories of
teachers and are not sufficient to outweigh the functional coherence and inter-
dependence of pupil services employees with the larger certificated unit. 	Any
separate identity of pupil services employees has been largely submerged in
their broader community of interest with other certificated employees and they do
not possess a community of interest separate and apart from the larger certificated
unit.
The criterion of the effect of the size of the unit on the efficient operation
of the school district is generally understood to reflect a concern in the4public
sector about the deleterious consequences of excessive unit fragmentation. 	In
2 Section 3541.3(a) of the EERA states: 	"The board shall have all of the
following powers and duties: 	(a) To determine in disputed cases, or otherwise
approve, appropriate units."
Section 3545(a) states:
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.
4See Shaw & Clark, Jr., Determination of Appropriate Bargaining Units in
the Public Sector: 	Legal and Practical Problems, 51 Oregon Law Review 152
(1971); Sweetwater Union High School District, EERB Decision No. 4, November 23,
1976, at pp. 11-12.
-3-

the instant case, 	even if the approximately 20 pupil services employees did
possess a separate and distinct community of interest, 	this criterion would
mandate their inclusion in the broader certificated unit .
ByrrJerilou ;, Cossack, Member 	-
Raymond J. 	Gonzales, Member, dissenting :
I 	respectfully dissent from the majority's decision to sustain the
hearing officer in this case on the question of whether there should be a
separate unit for pupil services employees .
I would refer the reader to my dissent in Grossmont Union High School
District1 and although the facts of this case are not totally identical, 	I
feel 	the community of interest standard that 	I required in my Grossmont
dissent would apply in this case- 	Therefore, 	I 	feel there is sufficient
evidence in the present case to allow for 	"an" 	appropriate bargaining unit
of pupil services employees.
- 	• 	• 	•
By : 	Raymond J. 	Gonzales, 	Member
Dated : September 14, 1977
1Grossmont Union Hi gh School District. , EERB Decision No .. 11, March 9, 	1977,
pages 11-24.
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_______________ )
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
WASHINGTON UNIFIED SCHOOL DISTRICT
Employer,
and
WASHINGTON ASSOCIATION OF PUPIL SERVICES
EMPLOYEES,
Employee Organization,
and
WASHINGTON EDUCATION ASSOCIATION, 	CTA/NEA,
Employee Organization.
Representation
Case No. 	S-R-93
PROPOSED DECISION
Appearances: 	0. H. Fifi Zeff, Deputy County Counsel, for Washington Unified
School District.
George E. Dalton, for Washington Association of Pupil Services Employees.
Richard L. Gilbert, for Washington Education Association, CTA/NEA.
Before Ronald E. Blubaugh, Hearing Officer.
PROCEDURAL HISTORY
This case presents a tangled procedural history.
On April 1, 1976, 	the Washington Association of Pupil Services Employees
(hereafter WAPSE) 	filed a petition with the Washington Unified School District
(hereafter District), asking for recognition as the exclusive representative of
a unit of certificated employees comprised of:
1.

Psychologists, guidance specialists, counselors,
nurses, librarians, work experience specialists.
On April 7, 1976 the Washington Education Association, CTA/NEA, 	(here-
after CTA), filed a petition with the District asking for recognition as the
exclusive representative of:
. . . 	a unit of all certificated employees excluding
superintendents, assistant superintendents, directors,
coordinators, principals, vice-principals, guidance
specialists, counselors, psychologists, psychometrists,
nurses and librarians.
An amendment on the bottom of the CTA petition reads:
In addition to the above named positions, exclude early
childhood specialists, work experience specialists.
At that point, therefore, 	the District had two non-competing petitions
before it. 	On April 8, 1976 the District posted the appropriate notices describing
the requests of the two organizations. 	1	1/On May 5, 1976, the CTA amended its petition so that the petitio
a request for a unit:
. . . 	of all certificated employees excluding superintendents,
assistant superintendents, directors, coordinators, principals
and vice-principals. 	Included in this unit but not limited to
are credentialed classroom teachers (K-12), specialist teachers,
children's center teachers, psychologists, guidance specialists,
counselors, nurses, librarians and work experience specialists
who deal directly with the education of children . . . 2 2	/
1. 	Government Code section 3544 requires a public school employer to
"immediately" post notice that an employee organization has requested recognition.
Under EERB emergency Rule 30026 which was in effect on April 1, 1976, the employer
was obligated to post the notice "not later than the end of the fifth workday"
following receipt of the petition. 	Government Code section 3544.1 requires the
employer to grant recognition to the organization except when certain conditions
exist. 	Among these exceptions is that "[a]nother employee organization either
files with the public school employer a challenge to the appropriateness of the
unit or submits a competing claim of representation within 15 workdays of the
posting of notice of the written request. . . ." Gov. Code, sec. 3544.l(b).
2. 	Excluding weekends, there were 20 days from April 8, 1976 when the
District posted the notice of the WAPSE request until the CTA amendment of May 5,
1976. 	No party has raised the issue of whether the amendment was filed within the
15 workdays required in Government Code section 3544.l(b). 	The hearing officer
notes that California school districts took a spring vacation of about five school
days during that time period. 	Because no party has contended that the CTA
2.

With that amendment, 	the District was for the first time confronted with petitions
for conflicting units.
On May 17, 1976, the Board of Education of the Washington Unified School
District issued separate decisions about the requests for recognition from WAPSE
and the CTA. 	In its decision about the WAPSE petition the District found that the
organization had requested "an appropriate unit." 	It upheld the showing of interest
by WAPSE, determined that the intervention by the CTA was "invalid" and declared
that no representation election was desired. 3 The decision concludes as follows:
The Board of Education request 	(sic) 	that the Educational
Employment Relations Board certify [the] Washington Asso-
ciation of Pupil Services Employees to represent those
employees described in the unit for purposes of repre-
sentation under provisions of SB-160, Collective Bargaining.
On May 18, 1976, the Washington Education Association filed a petition with the
EERB seeking a hearing to resolve the unit question. 	The hearing was conducted
August 11-12, 1976.
ISSUES
The legal issues presented by this case are:
1. 	Is there a question of representation pending in the District over
the appropriateness of the unit proposed by WAPSE?
2. 	If there is a dispute, is the unit requested by WAPSE an appropriate
unit?
3. 	Are adult education instructors appropriately within the unit?
4. 	Are summer school teachers appropriately within the unit?
5. 	Are the guidance specialists excluded 	from the unit as being either
management or supervisory?
(Footnote 2 continued.)
amendment was not timely, the hearing officer assumes that the amendment was
timely filed and was thereby a valid intervention into the petition earlier filed
by WAPSE.
3. 	Determination of the appropriate unit and a resolution of conflicting
petitions from employee organizations is 	the responsibility of the EERB under
Government Code section 3545.
3.

4
JURISDICTION OF THE EERB
During the hearing the counsel for WAPSE took the position that there
was not a challenge to the appropriateness of the unit before the EERB.
At one point WAPSE's counsel said:
It would be my contention there has not been [a challenge]
and that these documents will show that and that, therefore, the
only issue that's before the Board is the question of competing
claims of representation.4
Subsequently, counsel objected to the further taking of evidence about
the appropriateness of the unit requested by WAPSE. 	Counsel described the question
as "jurisdictional" and argued that because, in counsel's view, the Washington
Education Association had not challenged the appropriateness of the unit and that all
testimony about that matter should be struck from the record. 5
The hearing officer called counsel's attention to the Washington
Education Association's May 5, 1976 amendment. 	Counsel for WAPSE, however, said
he could see "no distinction between that document and the earlier petitions"
and continued his insistence that there was no challenge to the appropriateness
of the unit. 6
In its brief, the District contends that the EERB does have jurisdiction
to consider the unit question. 	The District argues that by the amended petitions
it was confronted by conflicting requests from two rival employee organizations.
The District argues that although it agrees with the request of WAPSE it could not
and did not recognize that organization and that it had asked the EERB to resolve
the dispute.
4. 	Reporter's transcript on page 87 beginning at line 1.
5. 	Reporter's transcript on page 96, beginning at line 12.
6. 	Reporter's transcript on page 98, beginning at line 7. 	No brief was
submitted by WAPSE, but the hearing officer does consider the argument made on the
record.
4.

V
A close examination of the various petitions, amended petitions and the
District's decisions reveals that the District's analysis of the situation is correct.
With the May 5, 1976 amendment, the CTA abandoned its earlier position which would
have allowed the District to recognize the two organizations in their mutually
exclusive units. 	With the amendment, the CTA in effect requested a wall-to-wall
unit of certificated employees. 	Presented with the two competing petitions, 	the
District stated a preference for the composition of the units. 	But it did not
and could not have recognized either group.
Thus, a hearing was properly scheduled by the EERB to resolve a matter
which was then in controversy. 	Counsel for WAPSE stated that he could see "no
difference" between the two CTA petitions. 	There was in fact a great difference
between the two. 	The amended CTA petition created a question of representation
in the 	District and under Government Code section 3544.7 the EERB was empowered
to conduct a hearing and resolve the dispute.
THE APPROPRIATE UNIT
The Washington Unified School District of Yolo County has an average
daily attendance of 4,720. 7 	It has nine schools with elementary grades, 	two
regular high schools and one continuation high school.
8
The District takes the position that there are appropriately two units
for certificated personnel who are not management or supervisory. 	One unit would
consist of approximately 225 employees comprised of all classroom teachers in
kindergarten, primary grades, intermediate grades, upper elementary grades, high
school, continuation high school, preschool, children center and specialist
7. Annual Report, 	Financial Transactions Concerning School Districts of
California, Fiscal Year 1975-76, published by the State Controller, State of
California.
8. 	1976 California Public School Directory, published by the Superintendent
of Public Instruction, State of California.
5.

teachers assigned to categorical programs. 	Excluded would be substitute teachers,
adult education teachers, summer school teachers.
The second unit proposed by the District would contain psychologists,
guidance specialists, counselors, school nurses, librarians, and work experience
specialists, a total of approximately 20 positions.
WAPSE would create a separate unit, 	identical to the District's second
unit, comprised of psychologists, guidance specialists, counselors, nurses,
librarians and work experience specialists.
CTA would create a single unit of all certificated employees, excluding
substitute teachers and certain kinds of temporary teachers. 	Included within the
CTA unit would be summer school and adult school teachers. 	CTA would exclude as
management all persons excluded by the District with the addition of the guidance
specialists whom CTA would exclude as being either management or supervisory.
CTA's contention that guidance specialists should be excluded was a change made at
the hearing from CTA's May 5, 1976 amendment. 	Thus, the unit sought by the CTA
would include all of the persons sought by WAPSE with the exception of the guidance
specialists.
The hearing officer will first address the question of the separate unit
of certificated employees which is proposed by the District and WAPSE.
The Educational Employment Relations Board considered this question in
Los Angeles Unified School District,
9
Grossmont Union High School District
10
and Oakland Unified School District.
11
Los Angeles Unified School District was unique in that the parties had
stipulated that nurses, 	librarians and pupil services and attendance counselors
should be in the same unit with the regular teachers. 	Applying community of
9. 	EERB Decision No. 5, November 24, 1976.
10. 	EERB Decision No. 11, March 9, 1977.
11. 	EERB Decision No, 15, March 28, 1977.
6.

interest criteria under Government Code section 3545(a), the EERB concluded that
the remaining counselors belonged in the unit with teachers and other certificated
personnel.
The complicating factor of the stipulation does not appear in Grossmont
and that case undisputedly serves as precedent. 	In Grossmont the Board placed
counselors, psychologists, school nurses and social workers into the same unit
as the teachers. 	In considering the community of interest question, the Board
found it significant that:
Fringe benefits paid to counselors, psychologists, nurses and social
workers were the same as those paid to teachers;
- — F o r the most part, school principals provided a common source of super-
vision for teachers and the other non-teaching certificated employees;
Salaries paid to the counselors, psychologists, nurses and social workers
were fixed in a definite relationship to the salaries paid to teachers;
All of those employees were evaluated under closely related systems.
Credential requirements of the non-teaching certificated employees were
highly similar to those of teachers.
- — A substantial interaction occurred between the counselors, psychologists,
nurses, social workers and the teachers.
The question of a separate unit for counselors 	arose again in Oakland
and the Board ruled once again that they belong in the same unit with the teachers.
Board precedent on this issue is clear.
The presumption must be, therefore, that the psychologists, guidance
specialists,12 counselors, nurses, librarians and work experience specialists
belong in the same unit with the teachers. 	The evidence in this case does not differ
12. 	Whether or not guidance specialists should be excluded as management
or supervisory is an issue apart from appropriateness of the unit and will be
considered later in this decision.
7.

B.
significantly from what the Board considered in the above-cited cases.
Building principals in the Washington Unified School District supervise
the teachers, the counselors, the librarians and the guidance specialists. 	Of
those in the disputed positions only one psychologist and the nurse are supervised
by a district-level administrator. 	The salaries of all of the persons in the
proposed separate unit are different from those paid to teachers but the amount
is based directly on the teachers salary schedule. 	The method for setting the
salaries of persons in the disputed categories is quite similar to the method
described by the Board in its Grossmont decision.
The system of evaluation for all certificated employees is defined by
law
13
as are the credential requirements.
14
There was no evidence presented by
any party to the Washington hearing which suggests any differences from the
factors considered by the Board in Grossmont for credentialing and evaluation.
Evidence was produced to show a considerable interaction between teachers
and the other credentialed employees. 	Guidance specialists, counselors and nurses
all deal with students who were referred by teachers. 	Librarians work with
teachers in the preparation of bibliographies and in helping students do research
papers assigned by teachers. 	Guidance specialists, counselors and librarians
all are required to attend faculty meetings. 	Nurses have regular dealings with
teachers and psychologists.
There was no evidence elicited that the fringe benefits are different
for any of the employees in the disputed group than for teachers.
In addition to a, consideration of community of interest, Government Code
section 3545(a) also commands attention to established practices and the effect
of the size of the unit on the efficiency of operation.
The EERB has held that where there was no evidence that prior representation
occurred in a bilateral rather than a unilateral context it would give little weight
13. 	Education Code section 13485 et seq,
14. 	Education Code sections 13130-13136.

to established practices which precede the enactment of the Educational Employment
Relations Act.15 	Evidence elicited at the Washington Unified hearing provides
little comfort to the proposition that the positions claimed to be appropriately
separate by WAPSE have any history of separate representation.
In 1965, at the start of the Winton Act,16 there were nine seats on the
District Negotiating Council, all of which were held by the Washington Education
Association. 	There was no change in composition until 1970-71 when, after an
amendment in the Winton Act, the Washington Association for Better Education got
one seat on the Certificated Employees Council. 	The Washington Education Associa-
tion continued to hold the other eight. 	The Washington Association for Better
Education was comprised of principals, vice-principals, assistant superintendents,
counselors, psychologists, librarians and school nurses.
9,
In 1971-72, the Washington Education Association had seven seats on
the council. 	The Washington Association for Better Education had one seat and a
new organization called Discover had one seat. 	Discover was basically an organiza-
tion of teachers, other certificated persons and some residents of the community.
In 1972-73, the Washington Education Association had six seats. 	The
Washington Association for Better Education had one seat. 	Discover had one seat.
And a new organization, Professional Educators' Group of East Yolo, had one seat.
The Professional Educators' Group was comprised of managers, teachers and any
certificated person wishing to join it.
In 1973-74, the Washington Education Association had six seats, Discover
had one seat, 	the Professional Educators Group had one seat and the Washington
Federation of Teachers/AFT had one seat.
15. 	Grossmont Union High School District, EERB Decision No. 11 at page 8
citing Sweetwater Union High School District, EERB Decision No. 4, November 23, 1976.
16. 	Former Education Code section 13080 et seq.

In 1974-75, the Washington Education Association had seven seats, the
Washington Federation of Teachers had one seat and the Professional Educators Group
had one seat.
In 1975-76, the Washington Education Association had seven seats. 	The
Washington Federation of Teachers had one seat. 	And the Washington Association of
Pupil Services Employees had one seat. 	WAPSE, from when it first was organized,
was limited to non-classroom certificated employees who were not managers.
Through all of those years, 	the various organizations had cross membership
and until WAPSE was formed no single organization represented only these employees
WAPSE now claims. 	Additionally, the evidence was clear that the Washington Educa-
tion Association had performed a key role in the negotiations which led to the
salary relationship under which counselors and others get a higher salary than
teachers.
Thus the established practices in the Washington Unified School District
show no clear history of the separate representation for the classes sought by
WAPSE.
The final criterion to be considered is efficiency of operations.
The superintendent said he sees no significant problems in negotiating with two
exclusive representatives. 	However, on cross-examination, he acknowledged that
dealing with two organizations which want different contracts could pose additional
administrative problems for the District.
Accordingly, 	in consideration of facts recited above and the record as
a whole, it is clear that Board precedent requires the inclusion of psychologists,
guidance specialists, counselors, nurses, librarians and work experience specialists
in the same unit with teachers.
10.

-------------------------------------------------------------------
ADULT EDUCATION TEACHERS
The CTA takes the position that adult education teachers are appro-
priately contained in the unit along with other certificated employees. 	The
District would exclude adult education teachers.
This question has been considered by the Board in Petaluma City Elemen-
tary and High School Districts,
17
Lompoc Unified School District,
18
and New Haven
Unified School District.19 In each of these cases the Board has found that adult
education teachers do not share a sufficient community of interest with regular
teachers to justify the inclusion of both within the same unit. 	The presumption,
therefore, must be that adult education teachers are excluded from the unit unless
a party seeking their inclusion can overcome the presumption.
No evidence was presented in the Washington hearing to overcome the
presumption.
An adult education teacher is hired once a sufficient number of students
have signed up for a particular class to make an opening class ADA of 17. 	Usually,
a class is closed if the enrollment drops below an ADA of 15. 	In the 1975-76
school year 13 of the planned adult classes were not opened because an insuffi-
cient number of students signed up and five classes were closed after they opened
because of a drop in enrollment. 	Thus 18 teachers had classes that did not open or
were closed because of inadequate enrollment. 	Adult school teachers are paid only
for the classes they actually teach.
In the fall semester of 1975-76, the District had 39 adult education
teachers. 	Of these, 22 were full-time teachers in the District's regular program.
17. 	EERB Decision No. 9, February 22, 1977.
18. 	EERB Decision No. 13, March 17, 1977.
19. 	EERB Decision No. 14, March 22, 1977.
11.

Two worked for the District full-time as classified employees, 	Six were employed
as teachers outside the District. 	Five were employed in non-teaching jobs outside
the District. 	The employment status of four was unknown. 	In the spring semester,
these statistics changed only slightly.
Adult school teachers are paid on an hourly basis. 	Although credentials
are required, experience counts as a qualification for a credential in a non-academic
subject and a degree is not necessary. 	There is no health plan for adult teachers
whereas other regular teachers are covered. 	Adult school teachers are not covered
by the District dental plan. 	Adult school teachers cannot receive tenure.
Teachers are not able to build up credit in the state teachers retirement program
by instructing adult classes.
The situation for adult teachers in the Washington Unified School District
is thus like that considered by the Board in the decisions listed above. 	Accordingly,
in consideration of these facts and the record as a whole, 	it is clear that Board
precedent prohibits the inclusion of adult education teachers in the same unit
with the regular, day-school teachers.
SUMMER SCHOOL TEACHERS
The CTA takes the position that summer school teachers are appropriately
contained within the same unit as other certificated employees. 	The District would
exclude summer school teachers from this unit.
This question has been considered by the Board in Petaluma City Elementary
and Hig
--h Schoo
----l District
-----s and in New Haven Unified School District. 	In both of
-
those cases the Board has found that summer school teachers do not have a sufficient
community of interest with regular teachers to justify the inclusion of both in
the same unit. 	The presumption, therefore, must be that summer school teachers are
excluded from the unit.
12.

No evidence was presented in the Washington hearing to overcome the
presumption.
Summer school teachers are employed by contract to teach classes during
a summer session. 	In the summer session of the 1975-76 school year, the District
employed 15 elementary school teachers. 	Of these, nine were regular full-time
teachers in the District. 	One was a person hired part-time by the District as a
classified employee. 	Three were persons who work as substitute teachers during the
regular year. 	Two were persons who are unemployed. 	At the high school level,
the District employed 21 summer school teachers. 	Of these, 18 were full-time
District teachers. 	Two were persons who work as substitute teachers during the
regular year. 	One was otherwise unemployed.
As with adult education classes, summer school classes are dropped
when the enrollment falls below acceptable levels. 	In the summer programs, the
minimum enrollment is about 10. 	When a summer class is dropped the teacher is no
longer paid. 	Summer school teachers receive no health and welfare benefits.
They receive no credit toward retirement programs. 	They receive only one day of
sick leave.
The situation for summer school teachers in the Washington Unified School
District is thus like that considered by the Board in the cases cited above.
Accordingly, in consideration of these facts and the record as a whole, it is clear
that Board precedent prohibits the inclusion of summer school teachers in the
same unit with the regular, day-school teachers.
TEMPORARY AND SUBSTITUTE TEACHERS
The District and the CTA entered the following agreement at the hearing:
13.

It is stipulated that the unit determined to be appropriate
for classroom teachers shall include those temporary employees
hired pursuant to the provisions of Education Code 	[sec] 13337.3,
employed to fill positions of certificated employees on leaves of
absence or experiencing long term illness for one semester or more
and those temporaries hired pursuant to Education Code section
13329, hired pursuant to contract in categorically funded or
specially contracted programs. 	Temporary employees hired under
Education Code Sec. 	13337 and 13337.6 and all substitute employees
are excluded.
The hearing officer adopts the stipulation without inquiry.
GUIDANCE SPECIALISTS
It was stipulated by the District, WAPSE and CTA that the following
positions be excluded from the unit as management:
superintendent, assistant superintendents, directors, coordinators,
principals, vice principals and child development specialist.
The hearing officer adopts the stipulation without inquiry.
The only disputed position is that of guidance specialist. 	CTA contends
that this position should be excluded as management or supervisory. 	The District
and WAPSE contend that the position should not be excluded.
The position of guidance specialist exists only at the seventh and eighth
grade schools. 	Guidance specialists work with students in relation to their academic
pursuits and with behavioral problems they experience at school. 	The guidance
specialists work primarily through the principal and for the principal. 	They
consult with parents and classroom teachers and use tests to design programs for
students with any special problems. 	Between 75 and 90 per cent of their time
is spent in counseling students. 	They do not formulate policies except under the
supervision and direction of a principal.
In the absence of the principal, guidance specialists are placed in charge
of the schools where they are assigned. 	Vice principals serve this function at
the high school level. 	A teacher designated by the principal performs this service
at the elementary school level.
14.

Guidance specialists assist in the evaluation of teachers involved in
programs for the educable mentally retarded and the educationally handicapped.
However, the role of the guidance specialist is advisory because the principal
carries the full responsibility for the evaluation of all personnel. 	Guidance
specialists do not attend administrative meetings.
The position of guidance specialist was created approximately three
years ago. 	Prior to that time there was a vice principal at the seventh and eighth
grade levels. 	After the position of vice principal was removed from the seventh
and eighth grade schools it initially was replaced by the position of counselor.
After that, the position was redesignated as guidance specialist. 	There is much
similarity between the job description of vice principal and that of guidance
specialist.
Initially, it is necessary to examine the CTA contention that the guidance
specialists are management employees. 	Government Code section 3540.1(g) reads as
follows:
"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.
The District argues in its brief that the guidance specialists cannot be
considered management employees because the District has not designated them as
management in accord with the requirements of the code. 	The District's argument
follows the plain meaning of the statute. 	Under a literal interpretation of the
statute the EERB is not even entitled to pass on the question of whether some employee
is management unless that person holds a job which the employer has designated as
management. 	Case law supports this literal interpretation. 	In interpreting the
meaning of a statute the initial place to look is at the words of the statute itself.
15.

Moyer v. Workmen's Compensation Appeals Board, 	(1973) 10 Cal.3d 222 at 230.
And interpreting the words of a statute, 	the language is to be construed in
accordance with the 	original 	meaning of the words used. 	People v. Rodriguez,
(1963) 222 Cal.App.2d 221.
A literal interpretation of the statute in this situation produces a
logical result. 	Management employees are the persons in whom the employer
entrusts the highest authority. 	They are the employer's inner circle, 	the persons
who make the decisions and plot the strategy. 	No employer can be compelled
to take someone into this category on the motion of someone outside. 	The employer
must have confidence in its managerial employees. 	This confidence arises from the
employer's original decision to designate someone as management.
The CTA, therefore, does not have standing to raise the issue that
the District failed to designate the guidance specialists as management.
In its brief, the CTA takes a fall back position that the guidance
specialists are at least supervisory employees and are thus excluded from the
unit. 	Government Code section 3540.l(m) reads as follows:
"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.
The EERB has ruled that the definition of supervisory employee is
written in the disjunctive so that an employee need possess only one of the enumer-
ated authorities or functions to be considered a supervisor. 20
20. 	Sweetwater Union High School District, EERB Decision No. 4, November 23,
1976.
16.

There is no Board decision which involves the position of guidance
specialist. 	The Board has ruled that subject coordinators are not supervisory 21
and that high school department heads and curriculum team members are not super-
visory.22
There was no evidence submitted at the hearing to indicate that the
guidance specialists are supervisory employees. 	Their job description, upon
which CTA places much reliance, recites numerous duties they have with students.
They counsel, consult with staff and parents, study the character of the student
population, perform liaison with community groups and so forth. 	No evidence
was presented that they have the authority to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward or discipline other employees. 	There
was no evidence they can assign work to other employees or direct them or to
adjust their grievances or to effectively recommend such action. 	The only
testimony remotely supportive of the proposition that they are supervisory is
that they have some limited, advisory role to the principal about the operation
of programs for handicapped students. 	But they do not rate the employees.
Counsel for CTA seems to place some reliance on the concept that the
work of the guidance specialists appears quite similar to the work of the high
school vice principals. 	The hearing officer makes no judgment about whether
the District's designation of vice principals as management would have been upheld
had the matter been disputed and testimony been taken. 	The hearing officer accepts
the stipulation of the parties. 	However, acceptance of that stipulation provides
no support for the proposition that guidance counselors also should be excluded
as supervisory because they appear to have duties similar to vice principals.
21. Lompoc Unified School District, EERB Decision No. 	13, March 17, 1977.
22. 	New Haven Unified School District, EERB Decision No. 14, March 22, 1977.
17.

On the basis of the evidence recited above and the whole record, 	the
hearing officer determines that guidance specialists are not excluded from the
unit as being supervisory. 	The hearing officer further rules that the CTA has
no standing to contend that the guidance specialists are management. 	They are
therefore to be included within the unit.
PROPOSED DECISION
It is the Proposed Decision that:
1. 	The following unit is appropriate for the purpose of meeting and
negotiating, providing an employee organization becomes the exclusive representa-
tive of the unit:
Certificated Employee Unit consisting of all regular, 	full-time
teachers, specialist teachers, children's center teachers, psychologists, guidance
specialists, counselors, nurses, librarians and work-experience teachers and those
temporary teachers covered by the stipulation between the District and the CTA;
but excluding the superintendent, assistant superintendents, directors, coor-
dinators, principals, vice principals and child development specialist, substitute
teachers, adult education teachers, summer school teachers and management, super-
visory and confidential employees.
2. 	The position of guidance specialist is not supervisory and the CTA
does not have standing to contend that it is management.
The parties have seven calendar days from receipt of this proposed
decision in which to file exceptions in accordance with section 33380 of the
Board's rules and regulations. 	If no party files timely exceptions, this proposed
decision will become a final order of the Board on April 20, 1977
and a Notice of Decision will issue from the Board.
18.

Within ten workdays after the employer posts 	the Notice of Decision,
the employee organizations 	shall demonstrate to the Regional Director at 	least
30 per cent 	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 organi --
zation qualifies 	for 	the ballot, 	or 	(2) 	if only one employee organization
qualifies 	for 	the ballot and the employer does not grant voluntary recognition.
Dated: 	April 11, 	1977
--·-----:r-- - .. -
Ronald Blubaugh
Hearing Officer
t7
19.