Gilroy Unified School District (PERB 0098E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GILROY UNIFIED SCHOOL DISTRICT,
Employer,
and
GILROY TEACHERS' ASSOCIATION,
CTA/NEA,
Employee Organization,
and
GILROY FEDERATION OF TEACHERS,
AFT LOCAL 1921, AFL-CIO,
Employee Organization,
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS GILROY
CHAPTER #69,
Employee Organization.
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Case No. SF-UC-30
PERB Decision No. 98
July 20, 1979
Appearances: Dani C. Cassidy, Attorney (Paterson & Taggart)
for Gilroy Unified School District; Duane Beeson,
Attorney (Brundage, Beeson, Tayer & Kovach) for Gilroy
Teachers i Association, CTA/NEA; Robert J. Bezemek, Attorney
(Van Bourg, Allen, Weinberg & Roger) for Gilroy Federation of
Teachers, AFT Local 1921, AFL-CIO; Patrick McGovern, Attorney
ifornia School s Association its Gilrter #69.
Before Gluck, eha i son; Gonz
On Ap r ill, 1976, Gilroy
(hereafter Association) filed wi th the Gil
s Moore, Members.
s' Associ ation,
Unified
Distr ict (hereafter Distr ict) a request for recogni tion,

alleging majority support in a unit of "all certificated
employees", encompassing approximately 335 employees. The
Gilroy Federation of Teachers, AFT Local 1921, AFL-CIO
(hereafter Federation) thereafter filed an intervention,
claiming more than 30 percent support in a uni t of
approximately 300 nonmanagement certificated employees. 1 On
Apr ill, 1976, California School Employees Association and its
Gilroy Chapter #69 (hereafter CSEA) requested recogni tion in a
uni t compr ised of the Distr ict' s approximately 250 classified
employees. On Apr il 28, 1976, the Federation filed an
intervention to CSEA' s request for recogni tion, together wi th
more than 30 percent proof of support in a uni t of
approximately 100 nonmanagement classified instructional
lGovernment Code section 3544. 1 (b) states:
The public school employer sh 1 grant a
request for recogni tion filed pursuant to
Section 3544 unless:
. . 9 . . . . . . . . . . . . . . . . . .
(b) Another employee organization ei ther
files wi th the public school employer a
challenge to the appropriateness of the uni t
or submi ts a competing claim of
representation wi thin 15 workdays of the
posting of notice of the written request.
The claim shall be evidenced by current dues
deductions author izations or other evi
such as notariz membersh lists, or
membersh cards, or peti tions s ned
employees in the unit i icating their
sire to resented by the
anization. If is evi
support at t 30 cent
rs an riate unit, asentation shall deemed
and the public school employer s
the board which shall conduct a
representation election pursuant to Section
3544.7, unless subdivisions (c) or (d) of
this section apply . . . .
stion
to exist
noti
2

employees, which included preschool and children i s center
teachers.
On August ll, 1976, a hear ing was conducted by the Public
Employment Relations Board (formerly the Educational Emploìment
Relations Board and hereafter PERB or Board) 2 to determine an
appropriate unit of certificated employees in the District.
Because the parties had previously reached agreement regarding
the regular certificated teacher unit, the only remaining issue
dealt with the placement of children i s center and preschool
teachers. During the course of this hearing, CSEA appeared and
argued that it should be a party to the proceeding because an
issue existed as to whether children i s center teachers were
classified or certificated employees. The certificated
(No. SF-R-2l5) and classified (No. SF-R-384) cases were
thereafter consolidated and a hear ing was conducted on
September 8, 1976. Pursuant to EERB Resolution #iO, 3 on
2The Educational Employment Relations Board was renamed
the Public Employment Relations Board (hereafter PERB or Board)
on l/l/78.
3Board Resolution #iO, adopted by the Board at a ic
meeting on January 25, 1977, states in pertinent part:
ficers cases dafter
, t a isionpursuant to Rule 3 370 in each
representation case af ting classified
s unless the Board or record
forwar wit t s a ision.General is instruc to review
such case to r to Board
r or not the Board itself s
the case.
The Board hereby remands to the General
Couns the sified cases listed in
Attachment A heard ior to this date to be
3

January 25, 1977, this case was removed from the docket of
cases to be decided by the Board itself, and remanded to the
general counsel for decision.
All other classified questions were resolved through
consent ag reements between the parties. In order to expedi te
an election to select an exclusive representative, all parties
on May 6, 1977, ag reed to wi thdraw thei r representation
requests and jointly requested a unit clarification pursuant to
Board Resolution #6.4 The issues raised by the unit
clarification petition were (1) whether chi rents center
teachers (hereafter referred to as "permi t teachers") and
preschool teachers (hereafter referred to as "permit teachers")
were classified or certificated employees; (2) whether those
teachers should be included in the classified unit, a separate
decided in accordance wi th the published
decisions of the Board itself. The cases
remanded include those cases heard by a
Board member, Board counsel, region
director or ad hoc hear ing officer. The
General Couns is instructed to ass n
these cases to a hear ing officer staff
member for a proposed decision.
4Board Resolution #6, adopted at a public meeting on
6, 1976, states:
Petitions es in unit nations
pursuant to Section 3541.3 (e) of the Act
will be entertained by the Educational
Employment Relations Board under the
i circumstances:
l. eition; or
parties joint fi t
2. Where there has a change in
the circumstances which existed at the time
of the initial unit termination.
4

unit, or, if found to be certificated, in the regular
certificated teacher unit; and (3) whether the children's
center supervisor was a supervisory employee wi thin the meaning
of section 3540.l (m) .5
On Apr il 28, 1978, the hear ing officer rendered a proposed
decision wherein he found that children's center and preschool
permi t teachers were certificated employees and were
appropriately included in the regular certificated unit. In
addition, he found the children's center supervisor to be a
nonsupervisory employee. No exceptions were taken to the
supervisory issue, and it is therefore not in issue before the
Board.
The Distr ict excepts to that portion of the hear ing
officer's proposed decision that includes "permit teachers" in
a uni t of certif icated employees. It is the Distr ict' s
posi tion that permi t teachers are classified employees; that
qualifications for permits are substantially different from
those for certification; that there is a lack of s nificant
5Government Code section 3540.l (m) states:
As used in this chapter:
...00.......9....6...(m) "Supervisory employee" means
employee, regard ss of job descr
having authority in the interest
employer to hire, transfer, su
off, recall, promote, dis
reward, or disc ine
t responsibili to ass
direct them, or to just ir grievances,
or effective recommend such action, if, in
connection wi th the foregoing functions, the
exercise of such authori ty is not of a
merely routine or cler ical nature, but
requi res the use independent judgment.
5

communi ty of interest between permi t teachers and certif icated
employees and that permit teachers have historically been
treated as classified employees. The Distr ict further contends
that the provisions of the Education Code relied upon by the
hearing officer to find that permit teachers are certificated
are designed for retirement eligibility purposes only and are
inapplicable for purposes of the Educational Employment
Relations Act (hereafter EERA). 6 The Distr ict also opposes
the establishment of a separate uni t of permi t teachers and
urges their inclusion in the existing classified unit.
The Gilroy Unified School District is located in Santa
Clara County and at the time of the hear ing had an average
daily attendance of approximately 5,743 students. The District
includes nine school sites on which are distributed six
elementary schools, one intermediate school, one high school
and one continuation school. One chi en's center and two
preschools are also included in the Distr ict' s operations. At
the date of the hearing herein, a total of 262 classified
employees, 314 certificated employees, and three children IS
center and three preschool rmi t teachers ~V'ere employed by the
Distr ict.
i en i S center provi scare 50 chi ren,
between the ages of two and twe The purpose of the center
6 ional t Re ions Act is ifi atGovernment Code sections 3540 et s Hereafter, all
references are to the Government Code unless otherwise
indicated.
6

is to provide education and care for children whose parents are
ei ther working or taking vocational courses.
The preschool program consists of three classes at each of
two school si tes, of which each class has 15 students. The
children range in age from three years, nine months to four
years, nine months. The preschool prog ram is designed to
prepare children who are economically, educational , socially
and developmentally depr i ved for entrance into regular
classroom education. The programs seek to improve motor
development skills and to increase social development. The
teachers wor k wi th small groups of children in such acti vi ties
as preparation of meals, cleaning, playing games, art, music
and story-telling. The preschool classes are conducted 3 l/2
hours per day. The teaching approach at the children's center
is similar to that of the preschool programs.
DISCUSSION
In this case the Board must determine the appropriate
placement of the preschool children's center permi t
teachers. In order to address this issue the Board must
determine whether permit teachers are classified or
certifi s thin t
3545 (b) . This section states in
In a cases:
. . . . . . . . . . . . .
( Classifi
employees sha not
otiati uni t.
meani of EERA, section
tinent t:
...$$5$0
If permi t teachers are assified employees, the heari
o icer must be revers On the other hand, if t are
7

certificated employees they cannot be placed in the CSEA
classified uni t or in the instructional aide uni t represented
by AFT since aides are indisputedly classified employees. 7
Permi t teachers have histor ically been treated as
classified employees. They are paid on a classified salary
schedule except that they earn certain increments based on the
acquisi tion of add i tional educational credi ts for which other
classified employees are not eligible. They also qualify for
classified employee longevi ty increments. They are subject to
the classified employee disciplinary procedures in the District
and have a probationary per iod which differs from that of
regular certificated teachers. In addition, while regular
teachers in the existing certificated uni t may not be laid off
for lack of funds, permit teachers may be. Further, while the
Distr ict does not dispute that the permi t teachers do engage in
instruction of the preschool children, it points out that such
duties are relatively marginal and that the primary function of
the subj ect employees is custodial day care in nature and
essentially similar to the functions of the instructional
aides. Bas on the foregoing, the District contends that the
permi ttees share a communi ty of interest wi th the class i f i ed
employees and are appropriately incl in ssifi uni t.
7 ion Code section 45347 (b) states, in re t:
Instructi ai s s 1 classifiemployees of the distr ict, and sha be
sect to all of the r hts, benefi ts,
burdens of the class i f i ed service. . . .
8

The Educational Employment Relations Act does not define
the term "certificated employee" or the term "permi t teacher".
The Education Code is, however, helpful in this regard.
Section 8366 reads in pertinent part:
Each person employed by a public or private
agency as defined in Section 8213 in a
position requiring a child development
permi t for the supervision and instruction
of children . . . or in the supervision of
the child development program, shall be
deemed to be employed in a posi tion
requiring certification qualifications.
Each other person employed by an agency in a
child development program under the
provisions of this chapter shall be deemed
for all purposes, including reti rement, to
be a person employed by the agency in a
position not requiring certification
qualifications.
It is this section which pr incipally led to the hear ing
officer's conclusion that permi t teachers are certificated
employees. A close scrutiny of other sections of the Education
Code reveals ample support for this proposition.
Education Code section 44006 states:
The term "certificated person" refers to a
person who holds one or more documents such
as a certificate, a credential, or a lire
diploma, which singly or in combination
license the holder to engage in the school
service designated in the document or
documents. (Emphasis . J
Education section 44002 defines "credential":
A "credential"
State Board
au z aservice specifi
(Emphasis added. J
9

And, in stating the personnel qualifications for child
development program personnel, Education Code section 8360
sta tes explici tly:
The governing board of a public agency . . .
shall employ in a child development program
only such persons who hold permi ts issued by
the Commission for Teacher Preparation and
Licensing. Any person holding a teaching
credential issued by the State Board of
Education or commission is deemed to hold a
regular child development permi t that will
author ize supervision and instruction of
children or supervision of a child
development program . . .. (Emphasis added)
It is apparent that the "permit teachers" herein must hold
either a permi t issued by the Commission for Teacher
Preparation and Licensing or a teaching credential, in order to
meet the hiring qualifications set forth in Education Code
section 8360. Thus, contrary to the contention of the
District, it follows that the required permit or credential is
a document encompassed in the defini tion of a "certificated
person" under Education Code section 44006. In addition, since
Education Code section 8366 (ante, at p. 9) specifically
states that persons employed in a position requiring a child
development permi t shall be deemed to be employed in a posi tion
requiring certification qualifications, such persons are
express excl from sifi service. ion
section 45104 states in pertinent part:
Every ition not fi this code as a
ition requiri certification
qualifications not ifical ex
from the classified service . . . shall
part of the assifi service....
10

Education Code section 45256 (a) 8 also specifically
excludes from the the classified service posi tions which
require certification qualifications. Since children center
positions are deemed to require certification qualifications
pursuant to Education Code section 8366 (ante, p. 9) they are
clearly not part of the classified service. In conclusion,
this Board finds that permi t teachers are certificated
employees.
The question remains as to whether the permi t teachers
should be placed in the existing certificated unit or should be
granted a unit of their own. The District's fixed position is
that a separate uni t would cause fragmentation and
proliferation of uni ts and impair operational efficiency.
In Oakland Unified School District (3/28/77) EERB Decision
No. 15, the Board established a separate unit of children's
center teachers, essentially because there was a lack of
communi ty of interest between those teachers and the "regular II
certificated unit.9 In that case the children's center unit
was compr ised of 200 employees in 24 centers. In the absence
8Education eode section 45256 (a) states:
The commission shall si 1
posi tions wi thin the jur isdiction of the
board or of the commission, except those
exempt from the classified service. The
itions shall as sifit from assif i service shall
governi
which are
employees
service.
(a) Posi tions which requi re cert i f ication
qualifications.
90ne member dissented and would have placed the
children's center teachers in their regular certificated unit.

of evidence to the contrary, the Board determined that a uni t
of 200 permi t teachers would not cause undue fragmentation of
the bargaining uni t, or otherwise impair the eff iciency of that
district's operations.
In the instant case, the size of the units in question is
substantially different than in Oakland. The District herein
has 262 classified employees, 314 certificated employees, and
only 6 preschool and children's center teachers. The Distr ict
argued that placing these permit teachers in a separate unit
would have a negative effect on the Distr ict' s operations and
cause undue fragmentation of the bargaining unit. The hear ing
officer was persuaded by this argument. This Board is also
persuaded that in this case, a uni t of six teachers would not
be appropriate, in that it would unduly fragment the bargaining
unit and impair the efficiency of the District's operations.
Further, there is no evidence that the interests of permi t
teachers are so disparate wi th the interests of the other
certificated employees as to create disruptions wi thin the
bargaining unit or preclude bargaining from taking place.
Thus, having concluded that permi t teachers are
certificated employees under the EERA, and that a separate unit
would be inappropriate in this case, the Board termines
preschool and children i s center teachers here in should
incl in unit with the ot r certifi s of
the Distr ict .lO For the for oing reasons we firm
lOSince CTA' s or ig inal peti tion, which included these
employees, was supported by an adequate showing of interest, no
new showing of interest is required.
12

hearing officer's Findings of Fact and Conclusions of Law
insofar as they are consistent with this decision. There
exists the possibility that, due to voluntary recognitions,
there may be bargaining units already in place in other districts
which include permit teachers in a classified unit. This decision
shall not operate to invalidate any such pre-existing units.
ORDER
Upon the foregoing decision and the entire record in this
case the Public Employment Relations Board ORDERS that:
I. The finding of the hearing officer, that the
children i s center supervisor is not a supervisory employee
within the meaning of section 3540. l(m) and is therefore
included in the certificated negotiating unit, is hereby
affirmed.
II. Persons employed as permit teachers in the
District i s children's center and preschool programs are
certificated employees within the meaning of Government Code
section 3545(b)(3).
l3

III. The permi t teachers employed in the children's
center and preschool programs should be included in the
existing certificated negotiating unit. Therefore, the
certification for exclusive representative shall be amended to
i ncl ude preschool teachers and ch i ldren' s cen ter teachers,
including the classification "supervisor!' employed in the
children's center and preschool programs, excluding
supervisory, management and confidential preschool and
children's center employees, as defined by EERA.
By: . \HV;r~y-blt1ck, Chaupers~ /' Rayrd J. Go~ir' Meîp;r -
"
-iarba~a Do Moore, Member
14

STATE OF CALIFOfu~IA
PUBLIC EMPLOYMNT RELATIONS BOARD
GILROY UNIFIED SCHOOL DISTRICT
Employer,
and
GILROY TEACHERS ASSOCIATION,
CTA/NEA, Employee Organization,
GILROY FEDERATION OF TEACHERS,
AFT LOCAL 1921,
Employee Organization,
Case No. SF-UC-30
and
PROPOSED REPRESENTATION
DECISION
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, GILROY CHAPTER 69,
Employee Organization.
April 27, 1978
Appearances: Daniel C. Cassidy, Attorney (Paterson and Taggart)
for Gilroy Unif ied School Distr ict; Duane Beeson, Attorney
(Brundage, Beeson, Tayer and Kovach) for Gi lroy Teacher s
Association, CTA/NEA; Robert J. Bezemek, Attorney (Van Bourg,
Allen, Weinberg and Roger) for Gilroy Federation of Teachers, AFT
Local 1921; Patr ick McGovern, Attorney, for California School
Employees Association, Gilroy Chapter 69.
Proposed Decision by Joseph E. Wiley, Ad Hoc Hearing Officer
PROCEDURAL HISTORY
The procedural history in this case departs from the
ordinary course of events in representation cases: (1) a hearing
consolidating both classified and certificated unit determina-
tions was the basis for the record in this case; (2) the case was
or ig inally on the docket of the Board itself, bu t was remanded to
the Off ice of the Gener al Counsel for dec i s ion; (3) three of the
unit questions originally put in issue were decided by consent
agreements between the parties--the uni t placement of regular
certificated employees, and the appropriate units for classified
1

employees being one unit of classified instructional aides, and
one unit consisting of all other classified employees; (4) the
parties' or iginal representation requests were wi thdrawn and the
case was ultimately des igna ted for resolution under the uni t
clar if ica tion procedure, leav ing the issues of uni t placement of
ch ildren i s center teachers and preschool teacher s, and the
supervisory status of the children's center supervisor.
On April 1, 1976 the Gilroy Teachers Association,
CTA/NEA (hereafter Association) filed with the Gilroy Unified
School Distr ict (hereafter Distr ict) a request for recogni tion
alleging majority support in a unit of "all certificated
employees, ii encompassing approximately 335 employees.l The
Gilroy Federation of Teachers, AFT Local 1921 (hereafter
Federation) filed an intervention to the Association's request for
recognition as exclusive representative of a unit of certificated
employees on Apr il 28, 1976, claiming more than 30 percent support
in a unit of approximately 300 nonmanagement certificated
2
employees.
lThe Association's request specifically excluded the positions
superintendent, assistant superintendent, princi l, and
admin istr at i ve ass istan t.
2The peti tion specifically includes teachers, counselors,
language-speech hear ing specialists, school nurses, sc 1
psychologists, "instructional specialist-math," re i
ialist, resource te rs, li arians, "MGM teacher," "all
employees in the above described unit who are currently on
district approved leave."
Excluded from the uni t of certif icated employees in
which the Federation alleged support are the posi tions of
super intendent, assistant super intendent, pr incipal, assistant
principal, administrative assistant, the coordinators of migrant
education, bilingual education, and career education, district
psycholog i s t, di s tr ict nurse, di str ict speech-language therapi s t,
and day-to-day substitute teachers. 2

Also on April l, 1976, California School Employees
Association and its Gilroy Chapter #69 requested recogni tion in a
unit comprising the District's approximately 250 classified
3
employees. On April 28, 1976 the Federation filed an
intervention to CSEA' s request for recogni tion, claiming more than
30 percent support in a uni t of approximately lOO nonmanagement
classified instructional personnel including preschool and
children i S center teachers.
On August ll, 1976 a hear ing was conducted by an EERB
agent to determine the appropriate unit of certificated employees
in the Distr ict. Because the parties had previously reached
agreement regard ing the regular cer ti f icated teacher uni t, the
only remaining issues dealt with the unit placement of children's
center and preschool teachers. Du~ ing the course of this hea~ ing,
CSEA appeared and argued that it should be a party to the hearing
because an issue was presented as to whether children's center
teachers and preschool teachers were classified or certificated
employees. The certificated (No. SF-R-2l5) and classified
(No. SF-R-384) cases were thereafter consolidated in order to
allow CSEA to participate fully. The hearing was continued on
September 8, 1976.
3including: Food Services, clerical and secretarial rations
and maintenance, instructional aides and transportation.
Excluding: noon duty supervisor and management, confidential, and
supervisory employees.
3

Pursuant to EERB Resolution #lO, on January 25, 1977,
this case was removed from the docket of cases to be decided by
the Board itself, and remanded to the General Counsel for
decision.
All classified questions were resolved through consent
agreements between the parties. In order to expedi te an election
to select an exclusive representative all parties on May 6, 1977
agreed to wi thdraw their representation requests and jointly
requested a unit clarification pursuant to Board Resolution.4
ISSUES
The issues are:
(l) Whether children's center permi t teachers and
preschool teachers are classif ied employees or cer tif icated
employees? '
(2) Whether children's center permit teachers and
preschool permit teachers are appropriately a separate unit or if
found to be certificated, should they be included in the regular
certificated teacher unit?
4Resolution 6 provides that: "Petitions for changes in unit
determinations pursuant to Section 3541.3 (e) of the Act will be
entertained by EERB under the fol ing circumstances
l. Where both parties jointly file petition, or
2. Where there has been
whi exis at t
termination." See so
Board Rules and Regulations.
in the circumstances
initial unit
3, article 6 of e
4

(3) Whether the children's center supervisor is a
supervisory employee within the meaning of Section 3540. l(m) .5
POSITIONS OF THE PARTIES
The Association claims that children i s center permi t
teachers and preschool permit teachers are certificated employees
and, as such, should be included in the cer t i fica ted teache r s i
uni t agreed to by the parties. 6 Both the Distr ict and CSEA
argue that these teachers are classified employees and should be
included in a negotiating unit with other classified employees.
The Federation does not take an unequivocal posi tion on whether . ..
i L.
deems these employees to be classified. Claiming that said
5Aii section references are to the Government Code, unless
otherwise specified. Section 3540.l(mj provides that,
"Supervisory employee" means any employee, regardless
of job description, having authority in the interest
of the employer to hi r e, tr ans f er, suspend, lay of f ,
recall, promote, d i scha rge, ass i gn, rewar d, or
discipline other employees, or the responsibili ty to
assign work to and direct them, or to adjust their
grievances, or effectively recommend such action, if,
in connection wi th the foregoing functions, the
exercise of such author i ty is not of a merely routine
or cler ical nature, but requires t use of
independent judgment.
6The agreed upon unit includes all "regular full-time
certificated and part-time certificated.. .permanent, probationary
or temporary teachers including f but not limi ted to the
following: 1 ibrar ians r counselors, school nurse, language-
speech-hearing specialists, school psychologists, MGM teacher r
reading specialists, reading resource teachers, resource teachers,
special education teachers, E.H. teachers, LDG teachers,
instructional specialists-math, curriculum associates, teachers on
leave, summer school teachers, CETA teachers."
5

employees should not be included in the regular certificated
teachers uni t (wi thout assert ing that they are not cer t if ica ted) ,
the Federation in its post-hearing brief seeks their inclusion in
either of two units: "a separate preschool/children's center
unit," or, alternatively, within a unit of classified
instructional aides. It is nowhere specified whether the
"separate" unit is to be certificated or classified. The
Federation's statement of the position at the hearing is
instructive: "we believe they're instructional employees and as
such they may be entitled to representation in either the
certified unit or the classified unit."
As regards the supervisory employee status of the
children's center supervisor, the Assoc iation and the Federation
contend that this employee is a supervisor wi thin the meaning of
the Act, and therefore is subject to exclusion from a uni t
including other children's center employees. CSEA argues that the
employee is not a supervisor wi thin the meaning of the Act. The
District did not take a position in the supervisory issue.
DISCUSSION
The Gilroy Unified School District is located in Santa
Clara County and has an average daily attendance of approximately
5,743 students. 7 The Distr ict includes nine school sites on
which are distributed six e tary schools f one inte iate
school, one high school one continuation i.8 One
7State Department of Education Annual Apportionment Report,
Of f ice of the Con trolle r .
81977 California Public School Directory, State Department
of Education.
6

children's center and two preschools also compr ise part of the
Distr ict' s operation. 9 At the date of the hear ing conducted in
this matter, a total of 262 classified employees and 314
certificated employees were employed by the District. Six
teachers are employed in the children's center and preschool
programs.
The children i s center provides care for 50 children,
between the ages of two and twelve. The purpose of the Center is
to provide care for children whose parents are either working or
taking vocational instruction courses.
Wi th respect to the preschool program, a total of
three classes are conducted at the two si tes, each of which has l5
students. The children range in age from three years, nine months
to four years, nine months. The preschool programs are .des igned
to help prepare children who are economically, educationally,
socially, and developmentally depr ived for entrance into regular
classroom education. The programs seek to improve motor
development and skills and to increase social development. The
teachers wor k wi th small groups of ch ildren in such act i vi ties as
preparation of meals, cleaning, playing games, art, music, and
story-telling. preschool classes are uc 3 l/2 hours
per day. The teaching approach at the children's center is very
similar to that of the eschool ograms, allowi for
differences in e.
9The children's center and one preschool are located at regular
elementary school si tes and one preschool is located at a church.
7

I. Per sons employed as permi t teachers in the Distr ict i s
children i s center and preschool programs-are certif icatea=
employees wiEhin tñe meaning of Section 3545(6) (3~ ---
Section 3545 (b) (3) provides that "classified and
certificated employees shall not be included in the same
negotiating unit." (Emphasis added.) No definition of
"certificated employee" is provided by the Educational Employment
Relations Act. However, Education Code Section 44006 defines
"certificated person" as a person who holds one or more documents
such as a certificate, a credential, or a life diploma, which
singly or in combination license the holder to engage in the
school service designated in the document or documents."
Of the Distr ict i s six permi t teachers employed in the
children's center and two preschools, five are holders of child
care permits (one of these holds a ""supervision" child care
permit), and one holds a general elementary credential instead of
a permi t. In order to obtain said permi ts, each of these teachers
was required to complete 60 uni ts of college wor k--the teacher who
possesses a general elementary credential has a B.S. degree plus
53-1/3 hours, permi t holders have completed varying numbers of
units (66 l/3 units, 69 5/6 units, 75 l/3 units, 75 2/3 units, and
93 units).
The Education Code prov ides ample bas i s for the
conclusion that the six teachers employed in the children's center
and pres ls are "certificated" shou excl from
negot iating uni t composed of class if ied employees. Quali f ications
8

for the required permi ts are prescr ibed by the State Commiss ion
f T h P t. d' . lO	or eac ers repara ion an Licensing.
Education Code Section 8366 provides as follows:
Each person employed by a school distr ict or communi ty
college district in a position requiring a children's
center permi t for the supervision and instruction of
children.. .or in the supervision of the children's
center program, shall be deemed to be employed in a
position requiring certltication quaiirications.
Each other person employed by a distr ict in a
children's center under the provisions of this
division shall be deemed for all purposes, including
retirement, to be a perso~mpIoyed by the school
district or community college district in a position
not requiring certification qualifications."
(Emphasis added.)
Further, Education Code Section 8360 provides that:
. . .Any person holding a teaching credential issued by
the State Board of Education or commission is deemed
to hold a regular children i s center permit that will
authorize supervision and instruction of children or
supervision of a children's program.
The District 'urges that these employees should be
considered "classified employees" for purposes of collective
negotiating because they are not required to have the "level of
'professional' training required of other' certificated'
Lull If' h . . l'	emp oyees. n support 0 its argument, t e District c aims
lOEducation Code Sections 8363 and 8370.
llThe Distr ict compares the requirements for the permi ts
required for instruction in the children i s centers e Is
wi th requirements the teaching credential, the ialist
instruction cr ntial and services cr ntial with a
specialization in pupil personnel services.
9

that Section 3545 (b) (3) must be read as analogous to Section 9 (b) (l)
of the Labor Management Relations Act (Ll1R) which section prohibits
the National Labor Relations Board from establishing a negotiating
uni t wh ich includes both profess ional employees "and employees who
are not profess ional employees." 12 "Profess ional employee" is
defined by Section 2 (12) l3 of the LMRA as,
(a) any employee engaged in wor k ( i ) pr edom i nan t ly
intellectual and var ied in character as opposed to
routine mental, manual, mechanical, or phys ical wor k;
(i i ) involving the cons i s tent exerc ise of di scre t ion
and judgment in its performance; (iii) of such a
character that the output produced or the result
accomplished cannot be standardized in relation to a
given period of time; (iv) requiring knowledge of an
advanced type in a field of science or learning
customar ily acquired by a prolonged course of
specialized intellectual instruction and study in an
inst i tution of higher learning or a hospi tal as
distinguished from a general academic education or
from an apprenticeship or from training in the
performance of routine mental, manual, or physical
processes; or
(b) any employee, who (i) has completed the cour ses of
specialized intellectual instruction and study
described in clause (iv) of paragraph (a), and (ii) is
performing related work under the supervision of a
prOfessional person to qualify himself to become a
professional employee as defined in paragraph (a).
Finally, the District argues that the Legislature's intent in
prohibiting inclusion of certificated and classified employees in
the same negotiating unit, was to "separate the highly trained and
educa ted i ofess ional ' s from s not
possess i ese qual i fica t ions, rather than dr aw i line
1229 USC 159 (b) (1)
1329 USC 152 (12)
10

between those employees who hold any type of credential and
those who hold no credential. ii
The District's view of legislative intent embodied
in Section 3545 (b) (3) proscription against classified and
certificated employees being in the same unit is not borne out.
The 1976 amendment of the Education Code, which is the predecessor
to Education Code Section 8366, establishes an intent that permit
teachers working along side other certificated staff be accorded
"certificated" status:
Each per son employed by a public or pr i vate agency as
defined in Section 16712 in a position requiring a
child development permi t for the supervision and
instruction of children, or for service as a
physician, dentist, or nurse, or in the supervision of
the child development program, shall be deemed to be
employed in a position requiring certification
qualifications. .
Each other person employed by an agency in a child
development program under the provisions of this
chapter shall be deemed for all purposes, including
retirement, to be a person employed by the agency in a
position not requiring certification qualifications. 14
It should be noted that the language "each other
per son. . . shall be deemed for all purposes, i nclud i ng ret ir emen t ,
to a person employed.. .in a ition not requiring certifi-
cation requirements," was maintained by the Legislature in
Education Code Section 8366, supra, which became effective on
i1 30,1977. "(FJor all rposes" incl s rpose
collective bargaining.
l4Former Sect ion 16766 of the Education Code.
II

Permi t teachers employed in the Distr ict i s children's
center and preschool programs are certificated as a matter of law
and therefore may not be included in a negotiating unit with
classified employees.
II. The Permi t Teachers Employed in the Ch ildren i s Center and
Preschool Program should be Included in the Regular êertificated
Employees Negot iating Uni t.
Permit teachers employed in the District's children IS
center and preschool programs are not classroom teachers within
the meaning of Section 3545 (b) (1): '" regular full-time probationary
and permanent teachers employed by a district' who comprise 'the
core of the certificated staff of the district,' i. e., those' who
teach full-time in the regular k-12 program. ,,is Therefore, the
appropr iate uni t placement of these employees is governed by
Section 3545 (a) which required t~e appropriateness 'çf ~
negotiating uni t to be based on the following factors: (l) The
communi ty of interest between and among the employees; (2) The
established practices of the employees, including the extent to
which they belong to.the same employee organization; and (3) The
effect of the size of the uni t on the eff ic ient operation of the
school district.
The Board itself has found that there is a separate
communi ty of interest between children i s center teachers and
lSOakland Unified School District (3-28-77) EERB Decision No. 15
at page 24.
Section 3545 (b) (1) states:
(b) In all cases:
Cl) A negotiating unit that includes classroom teachers
shall not be appropriate unless it at least includes all
of the classroom teachers employed by the public school
employer, except management employees, supervisory
employees, and confidential employees.
12

. 16	regular classroom teachers. The Board based its decis ion, in
par t, upon the following factor s: the s taf f ing of the chi ldren i s
centers was separate from the k-12 program, there were separate
faculty meetings, different working hours and a different salary
schedule.
The factors that distinguish the children i s center in
Oakland are similar, in many respects, to the present case. Here,
the children i s center and preschool programs do not share
facilities with other District schools. The workday of a
children's center teacher is eight hours, all of it contact time.
Preschool teachers work five hours with three and one-half hours
of contact time, the remainder of their time is spent wi th
preparatory work, meetings wi th parents and other act i vi ties
associated with. the instructional program. Classroom teachers
work a seven and one-half hour day, wi th five hours of studen t
contact. Children's center teachers work on a l2-month schedule
while other teachers work 10 months. The assistant super intendent
provides supervision for the children's center and preschool
teachers, while the school principal is responsible for the
supervision c ssroom teachers. Also, ch ildren i s center and
preschool teachers are paid on the classified employees pay
schedule, wh ile classroom teacher s are paid on the certi fica ted
sca
However, there are some common elements of communi ty
of interest wh ich were not present in Oakland. Both ch i ren i S
160akland Unified School District, supra, (3~28-77) EERB Decision
No. 15. 13

center and preschool teachers are required to attend pre-service,
and an in-service training course along with regular classroom
teachers. Addi tionally, there is some degree of interchange
between the preschool teachers and the psycholog ist, speech
therapist and kindergarten teachers, all of whom are included in
the certificated negotiating unit. Also, there is evidence that
the learning activities conducted by children's center and
preschool teacher s are simi lar to those of the pr imary gr ade
classroom teacher.
Al though there are some common elements of communi ty
of interest shared between the permi t teachers and the classroom
teachers, the differences are more numerous and in light of the
Board's decision in Oakland, it must be concluded that the
children.' s center and preschool teachers i communi ty of interest
can be distinguished from that of the existing certificated unit.
Little weight will be given to the past practices
criterion because prior to this time, these certificated children's
center and preschool teachers were viewed by the parties as
classified employees.
The effect of the size of the unit on the efficient
oper a t ion of District requires a finding that a separate
negotiating unit for children's center and preschool teachers is
not app riate. In Sweetwaterl7 a San Di l8 e Board
l7Sweetwater Unified School District Cll-23-76)EERB Decision
NO.4.
l8San Diego Unified School Dis trict (2- l8-77) EERB Decision NO.8.
14

clearly recognized the importance of finding the proper balance
between excessive fragmentation of negotiating unit and the
employees 1 right to effective representation in appropriate
units. Also, many commentators have voiced their strong
opposition to excessive proliferation of bargaining units and the
problems it creates. 19
In the present case, the proposed uni t of six
employees would cause excessive fragmentation of negotiating units
wi th the Distr ict. In Oakland, there were 200 employees in the
proposed children i s center uni t. Also, there were 24 centers and
approximately 2,000 students attending the centers. Here, there
are only ~ employees in the proposed uni t, one center and fifty
students. In balanc ing the add i tional time and expense
necessar ily incurred by the Distr ict if it were forced to
negotiate with another certificated unit, and that these
additional outlays would result from negotiating with a unit of
only six employees, against the fact that, while there are some
differences in the communi ty of interest, there is no evidence
that the dissimilar ities are sufficiently substantial as to create
a conflict of interest, or discourage mean ful and
19"The history of collective bargaining teaches that fragmenting
bargaining units are a principal cause of industrial unrest,
consequently, in every instance we avoid the creation of
fragment ing barga in ing uni ts if at all poss i "D. Bok, J.
Dun , Labor and the American Community, p. 325; E. Rock, II
Appropr iate~ñTt Question in the PuBiic Service", 67 Mich. L. Rev.
lOll, lOl3 (1969).
l5

effective negotiations,20 it is concluded that the creation of a
separate uni t for children's center and preschool teachers would
cause excessive fragmentation and have a detrimental effect on the
eff ic ient oper at ion of the Distr ict.
Therefore, after cons ider ing both communi ty of
interest and eff iciency of operation, it is found that the permi t
teachers employed in the Distr ict' s children's center and
preschool program should be included in the regular certificated
employees negotiating uni t.
III. The children's center supervisor is not a supervisory
posi tion wi thin the meaning or the Educationar= Employment_
Relations Act.
Section 3540.l(m) of the EERA defines supervisory
employe~ as II any employèe, regardless of job descr ipt~on having
author i ty in the interest of the employer to hire f transfer,
suspend flay 0 f f, recall, promote f discharge, ass ign, reward or
discipline other employees or the responsibility to assign work to
and direct them, or to adjust their grievances, or effectively to
recommend such action, if, in connection with the foregoing
functions f the exercise of such author i ty is not of a merely
routine or clerical nature, but requires the use of independent
judgment. II
20The National Labor Relations Board, in consider ing the
appropriateness of units in Health Care ustry, has said
that a unit may be appropriate if the application of the
tradi tional standards, viewed against strong congressional
warnings of excessive fragmentation of units, establishes that the
employees have a sufficiently separate community of interest.
(Emphasis added.)--Jewish HõSpital Association of Cincinnati (19ì6)
223 NLRB 6l4; Mercy Hospital of Sacramento (19ì5) 21ì NLRB ì65.
16

The Board held in Sweetwater Union~igh School
Di ~tr ict 21 that an employee need only per form one of the
enumerated actions to be considered a supervisor. The test,
however, is a functional one and distinguishes those who actually
supervise from those who carry the ti tle but do not perform
. d' 22	supervisory uties.
Applying this functional test to the evidence provided
in this particular case, the hearing officer determines that
Rojean Wilson is not a supervisor wi thin the meaning of the EERA.
Mrs. Wilson's role in hiring is inconclusive according
to the evidence presented. After an ini tial screening by other
parties, Mrs. Wilson and her supervisor, Assistant Super intendent
Downing, conduct the final interview. They discuss the interview
and come to an- agreement; however the extent of her influence on
hiring cannot be determined from this sparse evidence.
The evidence regarding Mrs. Wilson's role in the
preparation of performance evaluations is not conclusive.
Although she apparently assists in their preparation, her exact
contribution is not clear. Assistant Superintendent Downing, not
Mrs. Wilson, signs the completed evaluations. Mrs. Wilson does
discuss the results of the evaluation with i ividual
teachers, however, she does not keep a copy of the evaluation for
her fi s. In addition, re is scant evidence as to what role
21 Sweetwater Union High School District, supra (11-23-76) EERB
Decision No.4.
22 S Dee . J. Overmeyer Co. Inc., (1972) 196 NLRB 789, 90 LRRM
1356 e
17

the evaluations have in the Distr ict' s personnel decisions.
Mrs. Wilson did testify that she has not participated in a
performance evaluation that resulted in a teacher being fired or
demoted, but she did not state whether these evaluations had been
utili zed for other purposes.
The assignment of work is done on a volunteer basis
with teachers choosing which age group they wish to handle.
Instructions to the staff are rarely given because there is a
posted schedule and set routine. The teachers set their own
routines originally and Mr. Downing and Mrs. Wilson went over them.
Vacation requests go through Mrs. Wilson, and she
apparently assists in filling out the forms which are sent to the
District. She testified that if there were two requests for the
same time that she would make the decision but such a situation
has .never occurred. In reality, the teachers informally discuss
vacation plans and settle on dates which do not conflict.
Mrs. Wilson does not approve extended absences but does approve
absences of less than four days.
The gr ievance procedure is another area in wh ich the
evidence is unclear. Mrs. Wilson testified that she is the first
person to go to wi th gr ievances, although, in t, no formal
grievances have ever been filed with her. While she was herself
once the subject of a gr ievance, these ts, wi thout further
evi nce, not r ire a fi i that s is a supervisory
employee. She testified that the staff bring conflicts to her.
n It I S never been anything that hasn't been minor enough that we
couldn't handle because normally we don't get any gr ievances of
l8

tha t sor t . " (p. 159) No job descr ipt ion was placed in ev idence and
the Distr ict Handbook (Distr ict exhibi t #c) which descr ibes the
gr ievance procedure does not provide information which
distinguishes her pos i tion in any s igni f icant way.
Mrs. Wilson's duties include learning and enforcing
state regulations, determining which children are eligible for the
program, and checking whether it is time to recertify parents.
These duties do not involve independent judgment. Eligibili ty for
the program is based on established criteria. The time spent in
these dut ies requi res about one hour of her 8-hour day. The res t
of her time is spent in teaching. When asked whether these were
really administrative rather than supervisory düties, Mrs. Wilson
agreed that they were administrative.
Mrs. Wilsòn directs the weekly meeting óf the
ch ildren i s cen ter teacher s. In add i t ion, she is respons i ble to
the administration for accounting for the budget for the
children's center.
The Board concluded, in New Haven Uni f ied School
. t . t 23 h t h' h h 1 d t t h d h f	~~s r lC, t a ig sc 00 epar men ea s w 0 account or
budgets and who preside at regular department meetings were not
supervisors under the EERA. Furthermore, it was held in Oakl
Unified School Distr ict, sÜpr~l that children's center assistant
supervisors had no te i duties spent four hours each
in supervisory activities were not s rvisors.
23New Haven Unif ied School Distr ict (3-22-77) EERB Decis ion No. " i
L4.
19

In summary, it is apparent that Mrs. Wilson spends a
minimal part of her day in administrative activities. The extent
of her influence in hiring, termination, transfer, or promotion is
unclear as is the extent to which she acts for management in the
gr ievance procedure. In conclus ion, the evidence does not
demonstrate that Mrs. Wilson performs any of the activities
enumerated in Government Code Section 3540. 1 (m) and is therefore
not a supervisor wi thin the meaning of the EERA.
PROPOSED ORDER
It is the Proposed Decision that:
I. Persons employed as permi t teachers in the
Distr ict i s children's center and preschool programs are
certi f icated employees wi thin the meaning of Gòvernment Code
Section 3545 (b) (3) .
II. The permi t teachers employed in the children i s
center and preschool programs should be included in the existing
certificated negotiating unit. Therefore, the certification for
exclus i ve representative will be amended to read:
The unit includes the following certificated employees:
Regular full-time cer t i fica ted and par t-t ime
certifica classifi as rmanent, pr tionaryor
temporary te rs includi ,but not limi ted to the
following
20

librarians
counselors
school nurses
school pshchologists
MGM teachers
reading specialists
reading resource
teachers
rasource teachers
1 anguage- sp eec h-hea rin g
specialists
special education teachers
E. H. teachers
L.D.G. teachers
instructional specialists-math
curriculum associates
teachers on leave
summer school teachers
CETA teachers
and also including permit teachers and children's
center supervisors employed in the children i s
center and preschool programs; and, the unit
excludes all management, supervisory and confidential
employees.
III. The children's center supervisor is not a
supervisory employee within the meaning of Section 3540.1 (m)
and therefore shall be included in the certificated negotiating
unit.
The parties have twenty (20) calendar days after
service of this Proposed Decision in which to file exceptions
in accor~ance with California Administrat'ive Code, Title 8,
Section 32300.
If no party files timely exceptions, this Proposed
Decision will become final on May 22, 1978 and a Notice of
Decision will issue from the Board.
Dated: April 27, 1978.
21
Ll ¡ JÕSE'PH E. WIL¡t'T. ~...f.rA'd Ho c	~ Hear ing Off ic