Plumas Unified School District and Plumas County Superintendant of Schools and Plumas County Teachers Association, CTA/NEA (PERB 1332E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
PLUMAS 	UNIFIED 	SCHOOL 	DISTRICT 	and
PLUMAS 	COUNTY 	SUPERINTENDENT 	OF
SCHOOLS,
Employers,
and
PLUMAS 	COUNTY 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Exclusive Representative.
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) 	Representation
Case No. 	SA-UM-645
(SA-RR-563)
PERB 	Decision No. 	1332
June 	3, 	1999
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Appearances: 	Stroup 	& de Goede by Bryan G. 	Martin, 	Attorney, 	for
Plumas 	County Superintendent 	of 	Schools; 	California 	Teachers
Association by Ramon E. 	Romero, 	Attorney, 	for Plumas 	County
Teachers Association, 	CTA/NEA.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(Board) 	on 	exceptions 	filed by the 	Plumas 	County
Teachers Association, 	CTA/NEA 	(Association) 	to a Board hearing
officer's proposed decision 	(attached). 	In that proposed
decision, 	the 	hearing 	officer held that 	the 	Plumas 	County
Superintendent 	of 	Schools 	(County Superintendent) 	and the 	Plumas
Unified School 	District 	(District) 	constituted 	separate 	employers
within 	the meaning 	of 	the 	Educational 	Employment 	Relations Act
(EERA)1 and granted the 	County Superintendent's 	unit modification
petition.
The 	Board has 	reviewed the 	entire 	record in 	this 	case,
1EERA is 	codified at Government Code 	section 3540 	et 	seq.

including the hearing transcript, 	the proposed decision, 	the
Association's 	exceptions, 	and the 	County Superintendent's
response 	thereto. 	The Board 	finds 	the 	hearing officer's 	findings
of 	fact 	and 	conclusions 	of 	law to be 	free 	from prejudicial 	error
and 	adopts 	them as 	the 	decision of 	the 	Board itself.2
ORDER
Upon the 	findings of 	fact, 	conclusions of law, 	and the
entire 	record in the 	case, 	it 	is hereby ORDERED that 	an
appropriate 	unit 	shall 	include 	only 	those 	certificated 	employees
who 	are 	employed by 	the 	Plumas 	County Superintendent 	of 	Schools.
Accordingly, 	the 	certificated bargaining unit 	of 	the 	Plumas
Unified School 	District 	shall 	include 	only 	those 	persons 	employed
in 	certificated positions 	by 	the 	District.
Chairman 	Caffrey 	and Member Amador 	joined 	in 	this 	Decision.
2In 	so 	doing, 	we hold that EERA section 	3540.1(k) 	does 	not
preclude 	the possibility of 	two 	entities 	acting as 	a 	single 	or 	a
joint 	employer within 	the meaning of 	the EERA. 	(See United
Public Employees v. 	Public Employment Relations 	Bd. 	(1989)
213 	Cal.App.3d 	1119 	[262 	Cal.Rptr. 	158] 	[holding that 	city and
school 	district 	acted as 	joint 	employer under EERA].) 	In 	this
case, 	however, 	the hearing officer properly found that 	the
District 	and 	the 	County 	Superintendent 	were 	separate 	employers.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PLUMAS 	UNIFIED 	SCHOOL DISTRICT and
PLUMAS 	COUNTY 	SUPERINTENDENT OF
SCHOOLS,
Employers,
and
PLUMAS 	COUNTY TEACHERS
ASSOCIATION, 	CTA/NEA,
Exclusive 	Representative.
Representation
Case No. 	SA-UM-645
(SA-RR-563)
PROPOSED 	DECISION
(1/14/99)
)
Appearances: 	Stroup & de Goede by Bryan G. 	Martin, 	Attorney, 	for
Plumas County Superintendent of Schools; 	Ramon E. 	Romero,
Attorney, 	for Plumas County Teachers Association, 	CTA/NEA.
Before Les 	Chisholm, 	Hearing Officer.
PROCEDURAL 	HISTORY
A bargaining 	unit 	established 	through voluntary 	agreement
includes 	certificated employees 	of 	both 	the 	Plumas 	Unified School
District 	(District) 	and the 	Plumas 	County Superintendent 	of
Schools 	(County Superintendent), 	and is 	represented by the 	Plumas
County Teachers Association, 	CTA/NEA 	(Association). 	On
November 24, 	1997, 	the County Superintendent 	filed the 	instant
unit 	modification petition with 	the 	Public 	Employment 	Relations
Board 	(PERB or Board). 	The petition seeks 	to modify the unit 	in
order 	to 	have 	those 	certificated employees 	employed by 	the 	County
Superintendent, 	most 	of whom are Regional 	Occupational 	Program
(ROP) 	teachers, 	included in a unit 	separate and apart 	from a unit
including District 	employees. 	The petition was 	filed pursuant 	to
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PERB Regulation 	32781 (b) (1).1 By letter dated December 	10,
1997, 	the Association opposed the petition.
A settlement 	conference was 	held with 	the parties 	on
January 30, 	1998, 	and a formal hearing was conducted on
August 18, 	1998. 	Upon the receipt of both parties' 	briefs on
October 5, 	1998, 	the case was submitted for decision.2
FINDINGS 	OF 	FACT
Governance 	and 	Structure
There 	is 	only one 	school 	district 	in 	Plumas 	County.3 The
County Superintendent 	has 	been established as 	a 	separate 	elected
office 	for at 	least 	as 	long as 	the District 	has been 	in
existence. 	The 	current 	County Superintendent, 	William J.
1PERB 	regulations are 	found at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 et 	seq. 	Section 32781(b)(1)
provides:
(b) 	A recognized or 	certified employee
organization, 	an employer, 	or both jointly
may 	file 	with the 	regional 	office 	a petition
for unit 	modification:
(1) 	To delete classifications or
positions 	no 	longer 	in existence 	or
which by virtue 	of 	change 	in
circumstances 	are 	no 	longer appropriate
to 	the 	established unit[.]
2While 	neither party 	formally 	sought 	to 	reopen 	the 	record,
the Association wrote on October 20, 	1998, 	concerning alleged
factual 	errors 	and omissions 	in the 	County Superintendent's
brief, 	and the 	County Superintendent 	responded to 	that 	letter on
October 26, 	1998. 	The undersigned has 	relied upon the hearing
record and PERB case files, 	not the parties' 	briefs, 	in
summarizing the 	facts 	of 	this 	case 	and 	finds 	it 	unnecessary to
address 	the 	factual 	accuracy of 	either party's 	brief.
3However, 	the 	Sierra-Plumas 	Joint Unified School 	District,
which is 	located 	in and includes 	all 	of 	Sierra County, 	also
includes 	a 	small 	portion of 	Plumas 	County within its boundaries.
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Cottini, 	was elected in 1990. 	Historically, 	the offices of
County 	Superintendent 	and 	District 	superintendent 	were 	held 	by
the 	same 	individual. 	However, 	when Cottini assumed office 	in
January 	1991, 	the District 	Governing Board did not 	name 	him as
the 	District 	superintendent.
The 	elected members 	of 	the 	District's 	Governing Board
automatically 	serve 	as members 	of 	the 	Board of 	Education 	(County
Board) 	of 	the Plumas 	County Office of Education 	(COE).4 The
County Board 	and Governing Board normally meet 	on 	the 	same 	day,
but 	the 	two boards 	convene 	separately, 	each with its own distinct
agenda.
The 	County Superintendent's 	powers 	include 	hiring and
discipline 	of 	COE 	staff; 	the 	County Board has 	no authority over
hiring or discipline.5 The 	County Board approves 	the 	COE 	budget
and 	the 	County Superintendent's 	salary.
The 	offices 	of 	the 	County Superintendent 	are 	housed 	in 	the
District's headquarters office 	in Quincy. 	In addition to 	the
instructional programs of 	the 	COE, 	the 	County Superintendent 	is
responsible 	for 	reviewing 	and 	submitting 	to 	the 	state 	the
attendance reports of the District, 	and prepares reports 	to the
State 	Teachers 	Retirement 	System 	and 	Public 	Employees 	Retirement
System for the 	COE, 	the District 	and the 	Feather River Community
College District 	(Community College).
4See 	Education Code 	section 	1000.
5Employer Exhibits 	1 	and 2; 	Education Code 	sections 	1240-
1271, 	1290-1295 and 1040-1110.
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The 	County 	Superintendent 	also 	administers 	data 	processing,
business, 	media center and print 	shop 	services. 	The District
utilizes 	the 	COE's 	media 	center 	and print 	shop 	and pays 	for use
of 	these 	services. 	The 	County Superintendent 	processes 	warrants
and payroll 	for both the District 	and Community College. 	The
District 	and 	Community College 	each pay the 	COE 	for 	these
services.
The 	County Superintendent 	likewise 	reimburses 	the 	District
for personnel 	services provided by the 	District's 	personnel
director. 	The District's personnel 	office handles 	the
advertising 	for open positions, 	helps 	establish the 	screening and
interview panels,6 schedules 	interviews, 	processes paperwork and
such requirements 	as 	finger printing 	for successful 	candidates,
and 	issues 	formal 	employment 	offers 	on behalf 	of 	the 	County
Superintendent. 	However, 	the District personnel director is not
involved 	in 	grievance 	administration 	or 	discipline 	issues
involving 	COE 	staff.
Bargaining
The County Superintendent, 	not the 	County Board, 	has 	the
authority to approve 	collective 	bargaining agreements, 	while 	the
Governing 	Board must 	ratify 	any 	agreement 	on behalf 	of 	the
District. 	The 	collective bargaining agreement 	(Agreement) 	for
the 	certificated unit 	is 	trilateral, 	identifying the Association,
the 	Governing Board and 	the 	County Superintendent 	as 	parties.
6The 	personnel 	director 	consults 	with 	Cottini 	on the
composition of 	panels. 	Screening panels 	involve 	only COE
personnel, 	but 	interview panels 	also often include District
employees.
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However, 	the Agreement 	refers 	to 	the 	Governing Board and County
Superintendent 	collectively therein 	as 	"Board." 	The 	signatories
to the 	agreement 	are 	the Association, 	the District
superintendent, 	the 	District's board president 	and the 	County
Superintendent.7
The 	County Superintendent 	has 	had a 	representative 	on 	the
District's 	bargaining team with 	the Association at 	least 	as 	long
as 	Cottini 	has 	held office. 	Cottini participated 	initially and
is 	now represented by Larry Champion, 	Assistant 	Superintendent/
ROP Director.
The 	County 	Superintendent 	also negotiates 	with 	COE
classified 	staff, 	who are 	represented by the 	California 	School
Employees Association 	(CSEA). 	The 	County Superintendent 	granted
voluntary recognition to CSEA in July 	1993 	(PERB 	Case No.
SA-RR-945). 	Previously, 	the classified staff of the District and
County Superintendent 	were 	included 	in a 	single 	bargaining unit.
The 	Established 	Certificated Unit
The 	most 	recent Agreement 	describes 	the 	recognized
bargaining unit 	as 	including
all 	certificated 	employees 	holding 	the
following 	job 	classifications: 	elementary and
secondary teachers; 	librarians; 	speech
therapists; 	music specialists; 	elementary and
secondary special 	education teachers; 	nurses;
continuation education teachers; 	counselors;
7The 	reference 	to 	the 	Governing Board and County
Superintendent 	collectively as 	employer 	in 	collective 	bargaining
agreements has been followed since at 	least 	1981. 	However, 	in
the agreement 	for July 1, 	1981 through June 30, 	1987, 	there were
only two 	signatories: 	One 	for the Association and one 	signing
for both employers.
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school psychologists; 	and R.O.P. 	instructors,
half-time or more . t8]
The 	certificated bargaining unit 	presently 	includes 	more 	than 	200
District 	employees 	and approximately 22 	COE employees.
The 	existing unit was 	first 	established when, 	by letter
dated May 7, 	1976, 	the District 	and County Superintendent
notified 	PERB 	of 	the voluntary recognition of 	the Association 	for
a unit 	of 	all 	certificated employees, 	excluding the District
management 	team, 	full-time vice principals, 	ROP instructors,
substitutes, 	and county schools.9 The ROP teachers were 	later
added to 	the 	unit 	through a 	joint 	unit 	modification petition
which, 	inter alia, 	sought 	the addition of ROP instructors.10
PERB approved that petition on December 	8, 	1980.
COE 	Budget
ROP 	funding 	is based on average daily attendance 	(ADA). 	The
COE 	also 	receives ADA-based 	funding 	for a 	court/community school,
and additional 	monies 	from 	forest 	reserves 	and 	from the 	county
superintendent 	service 	fund. 	Other programs 	and operations 	of
8An 	individual 	employee 	is 	considered 	included 	in 	the 	unit
when his 	or her cumulative 	appointment(s) 	with the 	District
and/or 	County Superintendent 	equals 	half-time 	(.50) 	or more.
Correspondence 	related to 	that 	petition 	(PERB 	Case No.
SA-RR-563) 	and the 	subsequent 	recognition 	sometimes 	referred only
to 	the District 	as 	employer but more 	often made 	reference 	to 	the
District 	and County Superintendent 	collectively as 	the 	employer.
10While 	the 	County Superintendent 	was 	not 	separately 	listed
as 	a petitioning party, 	the petition 	(PERB Case No. 	SA-UM-105)
did 	include 	references 	to 	the 	District 	and 	County 	Superintendent
collectively as employer. 	At that time, 	the positions of
District 	superintendent 	and 	County 	Superintendent 	were 	held by
the 	same person.
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the 	COE 	are 	funded based on grants 	or 	from billings 	for 	services
such as 	data processing.
The 	funding of 	the 	COE 	is 	distinguished from the 	District 	in
several 	ways. 	The ADA for ROP 	is 	based on hour by hour
attendance records 	(actual 	"seat 	time"), 	while K-12 	attendance 	is
only taken once per 	school 	day. 	The District 	receives 	additional
funding 	from sources 	such as 	mentor 	teacher, 	school 	improvement
(SIP), 	and incentive grants. 	Some years the ROP is treated as a
categorical 	program and thus 	does 	not 	receive 	a 	cost 	of 	living
adjustment, 	even in years 	that 	the District does. 	The ROP 	is
restricted 	in terms 	of 	the 	amount 	of 	reserves 	it may carry.
COE 	Programs
The 	ROP was 	established 	in the 	early 	1970's 	as 	a 	COE program
and was 	initially 	created 	as 	a 	three-county program 	including
Plumas, 	Sierra 	and Lassen.11 Lassen County later 	formed 	its 	own
program, 	but 	the 	COE 	still provides 	the ROP 	for Plumas 	and Sierra
counties, 	with the bulk of 	the 	attendance being in Plumas.
Nurses 	training programs 	of 	the 	ROP are 	offered 	in Plumas,
1Education Code 	section 	52301 	provides 	in part 	that 	the
county superintendent 	of 	schools 	of 	each
county, 	with the 	consent 	of 	the 	State Board
of Education, 	may establish and maintain, 	or
with one 	or more 	counties 	may establish and
maintain, 	at least one regional occupational
center, 	or regional occupational program, 	in
the 	county to provide 	education and 	training
in vocational 	courses. 	The governing boards
of 	any 	school 	districts 	maintaining high
schools 	in the 	county may, 	with the 	consent
of 	the 	State Board of 	Education and of 	the
county superintendent 	of 	schools, 	cooperate
in the 	establishment 	and maintenance 	of 	a
regional 	occupational 	center 	or program[.]
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Sierra, 	Shasta and Nevada12 counties; 	school to work programs 	in
Plumas, 	Modoc 	and Lassen counties; 	and various grant-funded
programs, 	such as Computers 	in Our Future and AmeriCoach, 	in
Plumas 	County.
In addition to nursing programs, 	the ROP offers 	instruction
in computer applications, 	administration of 	justice, 	computer
assisted drawing, 	forestry, 	TV production, 	computer accounting,
mechanical drawing, 	welding, 	bus driver training, 	and
construction, 	automotive, 	food service, 	restaurant, 	agriculture,
computer, 	medical 	and business occupations.
Approximately 20 percent 	of 	the ROP 	students, 	including all
in the nursing programs, 	are adult 	learners, 	and the balance are
regular high school 	students 	(16 or older). 	Most 	regular
students 	served by the 	ROP program 	attend a 	class 	at 	their 	school
site. 	Most ROP instruction, 	in fact, 	takes place 	in classrooms
located at 	high 	schools 	and continuation 	schools 	of 	the 	District
or 	the 	Sierra-Plumas 	Joint 	Unified School 	District. 	The major
exceptions 	involve 	the nursing programs 	(classroom and
clinical/hospital 	settings), 	construction occupations 	(job sites
and classroom) 	and bus driver training 	(maintenance yard).
COE 	Workforce
Initially, 	the ROP hired all 	of 	its own teachers. 	However,
in the early 1980's, 	the District 	laid off 	teachers 	and cut many
vocational 	programs. 	The 	ROP picked up 	some of 	the 	laid off
12References 	to 	a 	certified nursing 	aid program 	in 	Truckee
sometimes placed 	it 	in El 	Dorado County and other times 	in Nevada
County. 	Truckee 	is 	located in Nevada County.
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teachers 	and the 	County Superintendent 	and District 	began 	a
practice 	of 	sharing 	individual 	teacher contracts.
Presently, 	several 	different 	employment 	arrangements 	are
utilized 	for persons 	delivering 	instruction 	for 	the 	County
Superintendent.13 For example, 	the ROP has 	two 	instructors
located at 	Loyalton High School 	in Sierra County. 	One 	is 	a 	full-
time 	employee 	of 	the 	Sierra-Plumas 	Joint 	Unified School 	District.
The 	County Superintendent 	contracts 	with that 	district 	to pay 	for
half of 	the 	salary and other costs. 	The other 	is 	a 	full-time
employee 	of 	the 	County Superintendent, 	and the 	Sierra-Plumas
Joint 	Unified School 	District pays 	half 	of 	that 	cost.
Many more 	such arrangements 	are 	found between 	the 	District
and County Superintendent. 	While 	the 	status quo 	is 	fluid,
approximately 	11 	bargaining unit 	members 	teach 	for both 	the
District 	and County Superintendent. 	Where 	an 	employee 	holds
multiple 	positions with both the District 	and COE, 	the 	employee
receives 	a payroll 	warrant 	from each but 	is 	issued only one
employment 	contract. 	The 	County Superintendent's 	agreement 	is
with the District 	in that 	case, 	not with the employee.
Describing this 	type 	of 	arrangement, 	Larry Champion testified:
At 	present 	we 	contract 	with 	the 	District 	for
a portion of 	that 	time, 	but we do not
contract 	with the 	individual.
13The 	COE projected 	filling 	the 	full-time 	equivalent 	(FTE)
of 	18.12 positions 	for 1998-1999, 	involving up to 42 	separate
appointments.
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The 	County 	Superintendent 	directly 	employs 	approximately 	11
certificated 	employees who 	are 	not 	also 	employed by 	the
District.14
The 	credentialing requirements 	for ROP 	teachers 	differ 	from
those 	of 	most 	classroom 	teachers 	by emphasizing work 	experience
over academic 	achievement. 	However, 	many ROP teachers 	have been
or are regular classroom teachers and many, 	if not most, 	meet
both types 	of 	credential 	requirements.
Terms 	and 	Conditions 	of 	Employment
Under the Agreement, 	the 	type 	of 	credential 	held does not
affect placement on the 	salary schedule. 	In fact, 	the rights and
benefits 	of 	unit 	members 	generally apply equally to 	employees 	of
both the 	District 	and COE.15 The Agreement 	specifies 	that 	COE
and District 	employees 	can mutually donate 	sick 	leave 	hours 	for
catastrophic 	leave 	benefits. 	The Agreement 	further provides 	for
a 	common 	seniority pool 	for COE 	and District 	employees, 	based on
the 	employee's 	first 	date 	of paid service 	in a probationary
status with either employer. 	There was unrebutted hearing
testimony that 	ROP 	teachers 	cannot 	achieve 	tenure 	or permanent
status as ROP teachers and, 	thus, 	the process 	involved in any
disciplinary 	issue would be 	different 	for them. 	However, 	these
distinctions 	are 	not 	reflected in the Agreement.
14The 	numbers 	addressed 	in this 	paragraph concern only those
persons 	in positions 	included 	in the 	certificated bargaining unit
and not 	those working 	less 	than half-time.
15The Agreement, 	at 	Section 2.03, 	states that references to
"unit 	member" 	include 	all 	represented employees unless 	specified
otherwise.
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As 	noted previously, 	certain ROP 	teachers work 	in non-
classroom settings 	and their hours, 	particularly 	for 	those 	in
nursing programs, 	are quite different 	than those 	of 	classroom
teachers. 	Both the 	District 	and 	County Superintendent 	employ
individuals 	in 	itinerant 	teaching positions.
Whether 	employed 	solely by 	the 	County 	Superintendent 	or 	by
the District 	as well, 	the majority of 	ROP teachers 	are 	located at
District 	schools 	and are well 	integrated 	into 	the work
environment. 	For example, 	Wes 	Stoddard has been continuously
employed both as 	an ROP 	teacher 	and a 	"regular" 	teacher at 	Quincy
High School 	since 	1983. 	He 	currently teaches metal 	and wood 	shop
for the District 	and welding 	for the ROP, 	and uses 	the 	same
classroom for all 	courses. 	Stoddard and other ROP 	teachers 	at
Quincy, 	including two who are 	full-time employees of 	the 	County
Superintendent, 	attend faculty meetings 	at 	their 	school 	and 	in
the District; 	use 	the 	same 	faculty 	lounge 	and parking 	lot 	as
other teachers; 	are 	supervised and evaluated by the 	same 	site
administrator; 	and perform extra 	duty assignments 	such as 	class
advisor, 	coaching, 	and bus and dance duty. 	Stipends are paid for
extra duty assignments, 	just 	as 	the 	County Superintendent 	pays
extra 	duty 	stipends 	to 	certain District 	teachers 	who perform
duties 	under 	its AmeriCoach grant.
This 	seamless 	integration of 	ROP 	and 	regular 	teachers 	has
been 	accomplished by design. 	Larry Champion described 	the 	plan
as follows:
We 	have 	an agreement with the 	sites, 	and it
is one that has evolved, 	our intent 	is 	that
the ROP 	teacher be 	an 	inclusive part 	of 	every
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staff, 	that 	the part 	that 	they serve 	is
seamless, 	that no one knows the difference,
they're 	a 	teacher on the 	site 	and that 	is 	a
good 	thing.
Nevertheless, 	the County Superintendent has not 	ceded
control 	over his programs 	to the District. 	While 	the 	site
administrator evaluates ROP teachers, 	Champion would be 	involved
if 	there 	were problems 	identified by the 	evaluation 	and 	Cottini
must 	approve any adverse 	action or discipline. 	Also, 	in addition
to 	attending 	site 	staff 	meetings, 	ROP 	teachers 	attend ROP 	staff
meetings, 	including ones 	held 	in conjunction with District-wide
meetings. 	Champion meets with ROP 	teachers 	individually on a
regular basis as well. 	Finally, 	ROP teachers 	initiate 	contacts
to make 	requests 	for money and 	supplies 	for programs 	with both
their 	site 	administrators 	and Champion.
POSITIONS 	OF 	THE 	PARTIES
District
The District 	did not 	appear at 	the hearing, 	nor 	state a
position 	on 	the 	County Superintendent's 	petition at 	any time.
County 	Superintendent
The 	County Superintendent's 	argument 	is 	organized 	into 	three
parts: 	The 	separate 	and distinct 	status 	of 	the 	County
Superintendent 	as 	a public 	school 	employer, 	the 	adverse 	impact
that 	the 	established bargaining unit 	has 	on COE operations, 	and
community of 	interest 	considerations.
Concerning status 	as 	a 	separate 	employer, 	the 	County
Superintendent 	cites 	Education Code 	sections 	1240 	et 	seq., 	which
authorize 	the 	county superintendent 	of 	schools 	to 	conduct
12

operations 	as 	a distinct 	employer, 	including the hiring and
discipline 	of 	both 	classified 	and certificated 	staff. 	The 	County
Superintendent 	also cites 	72 	Ops.Cal.Atty.Gen. 	25 	and Alameda
County Board of 	Education 	and County Superintendent 	of 	Schools 	of
Alameda County 	(1983) 	PERB Decision No. 	323 	(Alameda) .16
The 	County Superintendent 	further 	argues 	that 	separate
employer 	status 	is 	evidenced by the 	fact 	that 	the 	County
Superintendent 	has 	fewer 	and different 	funding 	sources 	than 	the
District. 	In addition, 	the 	County Superintendent 	operates under
a 	limitation not 	applicable 	to 	the 	District 	since 	the 	law 	allows
no more 	than a 	15 percent 	ROP 	reserve 	and requires 	that 	any 	funds
in a ROP 	reserve be used only 	for capital 	outlay.
The 	final 	point 	regarding 	separate 	employer 	status 	is 	that
the 	County Superintendent 	has 	authority to 	approve, 	or withhold
approval 	from, 	a collective bargaining agreement. 	This 	authority
is 	exercised on an equal 	basis with the District's 	Governing
Board.
The 	second 	argument 	made 	by the 	County Superintendent
concerns 	the 	adverse 	impact 	of 	the 	current 	unit 	configuration on
the 	COE, 	as 	evidenced by the 	effect 	of 	a retroactive 	salary
payment 	negotiated in a prior year. 	Night 	school programs 	of 	the
County Superintendent 	had to be 	reduced, 	as well 	as 	expenditures
for supplies 	and equipment, 	in order to meet 	the 	requirements 	of
the 	salary increase. 	The 	ability of 	the 	County Superintendent 	to
16Both 	the Attorney General's 	Opinion 	and Alameda 	addressed
the 	relative 	authority of 	the 	county 	superintendent 	and 	a 	county
board of 	education 	over 	employer-employee 	relations 	issues.
13

plan and administer programs 	would be 	enhanced 	if 	the 	County
Superintendent 	had 	autonomy 	to bargain based on 	the 	revenue
stream and budget 	of 	his 	office.
Finally, 	since 	the 	County Superintendent 	is 	a 	separate 	and
distinct 	employer, 	traditional 	community of 	interests 	factors
have 	limited application 	in this 	case. 	However, 	viewed in their
totality 	as 	required 	by Monterey 	Peninsula 	Community 	College
District 	(1978) 	PERB Decision No. 	76, 	these factors also support
approval 	of 	the 	requested unit 	modification. 	The 	geographical
area 	in which County Superintendent 	employees 	work 	is 	far broader
than 	Plumas 	County; 	the working 	sites 	and conditions 	for many
employees, 	especially those 	in nursing programs, 	are quite
different 	than those 	of 	regular classroom teachers; 	their
training 	and backgrounds 	are 	different 	than District 	teachers;
and 	the 	educational 	mission 	is 	directed toward vocational 	skills
rather than 	fundamental 	academic 	skills.
Association
The Association argues 	that 	the parties' 	stable bargaining
relationship 	(Los Angeles Unified School 	District 	(1998) 	PERB
Decision No. 	1267) 	and the 	community of 	interest 	shared by the
District's 	and 	County 	Superintendent's 	certificated 	staff 	require
finding the 	existing unit 	appropriate. 	The Association relies on
statutory criteria 	(EERA section 3545(a))17 and PERB precedent.
(Kings County Office of Education 	(1990) 	PERB Decision No. 	801.)
"The Educational 	Employment 	Relations Act 	(EERA) 	is
codified at 	Government 	Code 	section 	3540 	et 	seq.
14

The Association 	contends 	that 	the 	teachers 	at 	issue 	are 	on
the 	same 	salary schedule, 	receive the 	same benefits, 	share 	common
supervision, 	have 	frequent 	interaction, 	and often work on similar
extra 	duty assignments 	such as 	coaching or 	serving 	as 	class
advisor. 	The teachers also share many goals, 	as 	educators and as
employees, 	and belong to the 	same 	employee organization.
Further, 	the 	credentialing differences 	between ROP 	and
regular 	teachers 	are 	not 	significant 	and 	any difference 	is
rendered moot 	under 	Stanislaus 	County Office 	of 	Education 	(1993)
PERB Decision No. 	1022 	(Stanislaus). 	In Stanislaus, 	the Board
approved 	the 	addition of 	a 	certificated naturalist 	position 	to
the 	teachers 	unit 	despite 	differences 	in working conditions,
funding 	source 	and other 	community of 	interest 	indicia.
The 	second prong of 	the Association's 	argument 	relies 	on
National 	Labor Relations 	Board 	(NLRB) 	precedent 	for 	the 	concept
of 	a 	"single 	employer" 	relationship between the District 	and
County Superintendent. 	Under 	federal precedent, 	according to the
Association, 	two or more 	ostensibly separate 	entities may be
found to 	constitute 	a 	"single 	employer" 	for bargaining and
representation purposes 	based on 	consideration of 	four 	factors:
(1) 	Functional 	integration of operations; 	(2) 	centralized control
of labor relations; 	(3) 	common management; 	and 	(4) 	common
ownership or 	financial 	control. 	If 	the 	"single 	employer"
analysis 	is not 	found persuasive, 	the Association offers 	a 	"joint
employer" 	theory 	in the 	alternative.18 A 	"joint 	employer"
18The Association also suggests, 	alternatively, 	use of a
"dual" 	employer concept, 	but does not 	further define it. 	The
15

relationship 	can be 	found 	in 	the 	absence 	of 	common ownership
where 	two employers 	share 	in the 	control 	of 	labor 	relations 	and
working conditions of employees. 	(W.W. 	Grainger, 	Inc. 	v. 	NLRB
(1988) 	860 	F.2d 244 	[129 	LRRM 2718].) 	The bottom line 	for the
Association 	is 	that 	many 	COE 	employees 	are 	also 	employed by 	the
District 	and are, 	in both capacities, 	supervised by District
administrators.
Finally, 	the Association, 	relying 	on State of 	California
(Department of 	Personnel Administration) 	(1990) 	PERB Decision No.
794-S 	(State of California), 	argues that the County
Superintendent 	has 	failed 	to 	carry 	the 	requisite 	burden of
demonstrating 	the 	proposed unit 	modification 	is 	more 	appropriate
than 	the 	existing unit 	configuration.
ISSUE
Should 	the 	existing 	certificated bargaining 	unit 	be 	modified
to 	remove 	those 	employees 	employed by the 	County Superintendent?
If 	so, 	should those 	employees be placed 	in a separate unit with
continued 	representation 	by 	the 	Association?
DISCUSSION
Jurisdiction
Both 	the 	District 	and the 	County Superintendent 	are 	public
school 	employers within the meaning of 	the EERA, 	the Association
is 	a 	recognized employee 	organization within the meaning of 	the
Board, 	in San Francisco Community College District 	(1986) 	PERB
Order No. 	Ad-153, 	rejected adding a third concept 	to the 	"single
or 	joint" 	employer equation.
16

EERA, 	and the employees who are 	the 	subject 	of 	this petition are
employees within the meaning of 	the 	EERA..
Single v. 	Joint 	Employer
Both the Board19 and 	federal 	courts20 have 	observed that
the distinct 	concepts 	of 	"single employer" 	and 	"joint 	employer"
are 	often used 	incorrectly as 	interchangeable 	terms. 	In
Browning-Ferris, 	the court held:
[A]s 	the 	Supreme 	Court 	itself 	has 	recognized,
the 	two 	concepts 	approach the 	issue 	of 	"who
is 	the 	employer," 	from two different
viewpoints. 	As 	such, 	different 	standards are
required 	for 	each[.]
The Browning-Ferris 	court, 	citing Radio 	and Television Broadcast
Technicians Local Union 1264 v. 	Broadcast 	Service of Mobile, 	Inc.
(1965) 	380 U.S. 	255 	[58 LRRM 2545] 	(Broadcast Service). 	defined
the 	"single employer" 	concept 	as 	follows:
A 	"single 	employer" 	relationship 	exists where
two nominally 	separate 	entities 	are 	actually
part 	of 	a 	single 	integrated enterprise 	so
that, 	for all purposes, 	there is 	in fact only
a 	"single 	employer." 	The 	question 	in the
"single employer" 	situation, 	then, 	is whether
the 	two nominally independent 	enterprises, 	in
reality, 	constitute only one integrated
enterprise. 	[Italics 	in original.]
The Browning-Ferris 	court 	also noted that, 	under Broadcast
Service, 	four factors 	are 	examined to answer whether a 	"single
employer" 	relationship 	is present 	under the particular 	facts 	of 	a
case: 	(1) 	Functional integration of operations; 	(2) 	centralized
"Turlock School Districts 	(1977) 	EERB Order No. 	Ad-18
(Turlock). 	(Prior to January 1, 	1978, 	PERB was known as the
Educational 	Employment 	Relations 	Board 	(EERB).)
20NLRB v. 	Browning-Ferris 	Industries of 	Pennsylvania, 	Inc
(CA 3, 	1982) 	691 F.2d 1117 	[111 LRRM 2748] 	(Browning-Ferris).
17

control of labor relations; 	(3) 	common management; 	and 	(4) 	common
ownership or 	financial 	control.
Citing NLRB v. 	Greyhound Corp. 	(1964) 	376 U.S. 	473 	[55 LRRM
2694] 	as 	the 	lead case, 	the Browning-Ferris 	court 	held that 	the
"joint 	employer" 	concept
does 	not 	depend upon the 	existence of 	a
single 	integrated 	enterprise 	and 	therefore
the 	above-mentioned 	four 	factor 	standard 	is
inapposite. 	Rather, 	a 	finding that 	companies
are 	"joint 	employers" 	assumes 	in the 	first
instance 	that 	companies 	are 	"what 	they appear
to be" 	-- 	independent 	legal entities that
have 	merely 	"historically 	chosen 	to 	handle
jointly . 	. 	. 	important aspects of their
employer-employee 	relationship." 	NLRB v.
Checker Cab Co.. 	367 F.2d 692, 	698, 	63 LRRM
2243 	(6th Cir. 	1966).
In 	"joint 	employer" 	situations 	no 	finding of
a 	lack 	of 	arm's 	length transaction or unity
of control or ownership is required, 	. 	. 	.
"[i]t 	is 	rather a matter of 	determining which
of two, 	or whether both, 	[employers] 	control,
in the 	capacity of employer, 	the 	labor
relations of a given group of workers." 	NLRB
v. 	Condenser Corp. 	of America 	[128 F.2d 67].
. 	. 	. 	Thus, 	the "joint employer" concept
recognizes 	that 	the business 	entities
involved are 	in 	fact 	separate but 	that 	they
share or 	co-determine 	those 	matters 	governing
the 	essential 	terms 	and conditions 	of
employment. 	[Citations omitted; 	italics 	in
original.]
PERB 	Precedent
The 	Board has 	twice 	directly addressed 	the 	question of
whether two 	school 	districts 	could be 	considered, 	for purposes 	of
collective negotiations 	and representation, 	a 	"single 	employer."
In Turlock, 	the essential 	facts before 	the Board were 	as
follows. 	The 	Turlock Joint Union High School District 	and
Turlock 	Joint 	Union 	School 	District 	had operated 	for over 	10
18

years 	as 	a common administration 	school 	district; 	shared seven
high level 	administrators, 	including the 	superintendent;
maintained 	largely common 	terms 	and 	conditions 	of 	employment,
including 	salary 	and policies 	facilitating 	interdistrict 	hiring
for certificated staff; 	shared some 	facilities, 	equipment 	and
student 	transportation arrangements; 	had a 	common 	telephone
number, 	letterhead and post 	office 	box; 	and had acted 	jointly 	in
employer-employee 	relations matters prior to EERA's 	enactment.
However, 	the Turlock districts 	had different boundaries,
separately elected boards 	of 	trustees 	which 	acted 	independently
of 	one another, 	and separate budgets 	and tax bases.
Applying the 	facts 	of 	the 	case 	to the 	federal 	doctrines 	of
"single 	employer" 	and 	"joint 	employer," 	the Board held that
neither concept 	was 	applicable 	in Turlock. 	Even more 	important,
though, 	was 	the Board's discussion of 	the 	applicability of NLRB
precedent 	to the 	issues 	in that 	case:
This 	case warrants 	the 	[Board's]
consideration of 	a 	system of 	personnel
management that, 	it 	is argued, 	would favor a
holding 	that 	the 	Turlock 	School 	Districts 	are
one 	employer. 	Yet 	by simply applying
controlling 	language 	found 	in 	Government 	Code
Section 3540.1(k) 	. 	. 	. 	the Turlock School
Districts cannot be viewed as one employer. 	.
. 	. 	[Id.]
Following 	a 	review of 	both the 	definition of 	"public 	school
employer" 	found at 	EERA section 3540.1(k) 	and Education 	Code
provisions defining 	"governing board" 	of 	a 	school 	district, 	the
Board's 	decision continues:
Thus 	it 	is 	obvious 	that both the Turlock
Joint 	Union High 	School 	District 	and the
Turlock Joint 	Union 	School 	District 	must 	be
19

viewed as 	separate 	employers 	under 	the plain
meaning of 	the Act. 	Where 	the 	language 	of 	a
statute 	is 	clear, 	there 	is no room for
interpretation; 	it must be 	followed and
effect must be given its plain meaning. 	The
Turlock 	School 	Districts 	are 	clearly 	separate
legal 	entities with separate 	governing
boards. 	The 	fact 	that 	they have 	chosen to
share 	some 	administrators 	and a 	small 	number
of 	certificated 	and 	classified personnel 	can
hardly lead one 	to 	conclude 	that 	they are 	one
employer. 	In fact, 	since the certificated
and 	classified 	employees 	customarily 	receive
separate 	checks 	from each 	school 	district,
that 	is 	evidence of the 	separate 	status of
each governing board. 	Any other 	arrangements
made 	mutually 	and 	cooperatively by 	the 	two
boards 	seem more 	a matter of 	convenience 	than
the 	result 	of 	any compelling 	legal 	authority
to do so. 	[Id.; 	fn. omitted. ] [21]
In Paso Robles Union School District, 	et al. 	(1979) 	PERB
Decision No. 	85 	(Paso Robles), 	the 	"central 	issue before the
Board" 	was whether two school 	districts 	constituted 	"a 	single
public 	school 	employer or two 	separate 	employers." 	The 	Board
held that 	each district 	was 	a 	separate 	employer within the
meaning of 	EERA:
We 	are mindful 	that 	[NLRB] 	case 	law would
favor 	finding 	these 	districts 	to be 	a 	single
employer in both cases. 	However, 	we do not
view NLRB 	decisions 	as 	appropriate 	guidelines
in this area. 	. 	. 	.
21The 	Board 	similarly 	relied on 	the 	"clear 	and unambiguous"
language 	of 	EERA's 	definition of 	"public 	school 	employer" 	in
North Orange 	County Regional 	Occupational 	Program 	(1990) 	PERB
Decision No. 	857 	(NOCROP). 	In NOCROP, 	the Board determined that
a 	joint 	powers 	agency 	is 	not 	a public 	school 	employer and that
PERB 	lacks 	jurisdiction under EERA where 	several 	school 	districts
form a 	joint 	powers 	authority 	in order to operate 	a 	regional
occupational 	program, 	even 	though each participating entity 	is
itself a public 	school employer. 	In doing so, 	the Board
specifically 	overruled 	an 	earlier 	contrary 	ruling 	found 	in 	Joint
Powers Board of 	Directors, 	Tulare 	County Organization 	for
Vocational 	Education, 	Regional 	Occupational 	Center and Program
(1978) 	PERB Decision No. 	57.
20

In 	determining 	appropriate 	negotiating 	units
we must 	always 	bear 	in mind the 	stated
purpose 	of 	the 	EERA to 	foster harmonious
employee-employer 	relations 	through
collective negotiations. 	Meaningful
negotiation can only occur where 	the 	employer
has 	the 	authority and ability to 	reach
agreement 	with 	the 	duly 	selected
representative 	of 	its 	employees 	about 	those
matters within the 	scope 	of 	representation.
In the instant cases, 	each district 	is
confined to 	the 	framework of 	its 	own tax
base, 	budget and revenue 	limits. 	The budgets
of 	each district 	are 	kept 	strictly separate
and there 	is no commingling of 	funds. 	In
each case, 	where 	the districts 	share 	staff,
facilities or equipment, 	there is a strict
apportionment 	of 	the 	expense 	between 	them.
Each governing board 	is 	a 	separate policy-
making body 	responsible 	to 	different
constituencies. 	Moreover, 	and while not
dispositive, 	voters 	in both cases have
repeatedly 	rejected unification 	of 	the
districts.
In the 	final analysis 	it 	is 	this 	separate
economic 	status 	of 	each district 	coupled with
the 	exclusive 	policy-making authority of 	each
district 	which determines 	its 	ability to
negotiate 	about 	those 	matters 	within 	the
scope of negotiations. . . . 	[.Id.; fn.
omitted. ]
The 	Board has 	also 	considered the 	"single 	employer" 	concept
in 	the 	context 	of 	determining whether an employer 	falls 	under the
Board's 	jurisdiction. 	In Fresno Unified School 	District 	and
Abbey Transportation System, 	Inc. 	(1979) 	PERB Decision No. 	82,
the Board held that Abbey Transportation System, 	Inc., 	a
privately 	held 	corporation 	which 	relied 	upon 	Fresno 	Unified
School 	District 	for nearly half 	of 	its business, 	was not 	a public
school 	employer 	and not 	covered by EERA even 	if 	the 	single 	and
joint 	employer 	definitions 	were 	applied.
21

Likewise, 	in San Diego Community College District 	(1988)
PERB Decision No. 	662, 	the Board determined the San Diego
Community College District 	Foundation, 	Inc., 	a non-profit
corporation, 	was not 	itself an EERA-covered employer, 	nor an
alter ego of 	the 	district. 	The Board also held that 	"because 	of
the 	lack of 	common ownership," 	the 	district 	and 	foundation could
not be 	considered a 	single 	employer. 	(Id., 	citing Broadcast
Service.)
The 	Board has 	relied upon a 	finding of 	"joint 	employer"
status 	in the 	context 	of 	determining 	its 	jurisdiction over an
employer. 	In San Francisco 	Community College 	District 	(1989)
PERB Decision No. 	688b, 	the Board held, 	pursuant 	to United Public
Employees v. 	PERB 	(1989) 	213 Cal.App.3d 1119 	[262 Cal.Rptr. 	158],
it 	has 	jurisdiction over 	a 	community college 	district 	and 	its
employees 	where 	the 	district 	and 	the 	City of 	San 	Francisco
operate 	as 	joint 	employers 	of 	classified employees 	of 	the
district. 	In addition, 	in a case 	involving a dispute over the
designation of 	confidential positions of 	the employer, 	the Board
let 	stand without 	comment 	a 	stipulation that 	the 	two 	school
districts 	involved had chosen 	to operate 	as 	a 	"joint 	employer"
for 	"the purpose of negotiations" 	with classified employees.
(Dinuba Public Schools 	(1979) 	PERB Decision No. 	91.)22
Analysis
If 	the 	certificated employees 	of 	the 	District 	and County
Superintendent 	are 	held to be 	employed by a 	single 	employer, 	the
22The 	"single 	employer" 	concept, 	as used both by PERB 	and
the NLRB, 	may have been more 	apt under the 	facts of 	that 	case.
22

rationale 	for their 	inclusion 	in a 	single unit 	would be well-
founded 	and 	in accord with 	PERB precedent. 	(Peralta 	Community
College District 	(1978) 	PERB Decision No. 	77 	(Peralta).23
The 	County Superintendent's 	employees 	share 	a 	community of
interest 	in many respects with District 	employees, 	including
common supervision, 	teaching mission, 	salary and benefits, 	work-
related 	interaction and 	extra 	duty assignments. 	The 	differences
highlighted by 	the 	County 	Superintendent 	(including 	funding,
credentialing, 	geographic 	location and, 	for some, 	hours of work)
are not 	sufficient 	to rebut 	the 	Peralta presumption. 	Nor is 	the
"adverse 	impact" 	argument 	of 	the 	County Superintendent 	sufficient
to overcome 	the 	community of 	interest 	finding 	in this 	case. 	All
that being said, 	a 	finding of 	community of 	interest 	is 	not
determinative 	of 	this matter.
Reading Turlock 	and Paso Robles 	together, 	the 	inescapable
conclusion 	is 	that 	the 	District 	and 	County Superintendent 	are 	two
separate public 	school 	employers 	and do not 	constitute 	a 	single
employer 	for purposes 	of 	representation under EERA. 	As 	in
Turlock, 	the 	District 	and County Superintendent 	are 	separate
legal 	entities 	with 	separate 	governing boards 	or authority who
23In 	Peralta, 	the Board held that 	EERA sections 	3545(a) 	and
3545(b), 	read together, 	form a rebuttable presumption that all
certificated 	employees 	should be 	included 	in a 	single
representation unit. 	See, 	for example, 	Hartnell Community
College District 	(1979) 	PERB Decision No. 	81 	(part-time faculty),
Rio Hondo Community College District 	(1979) 	PERB Decision No. 	87
(summer session teachers), 	Glendale 	Community College District
(1979) 	PERB Decision No. 	88 	(adult education teachers), 	Dixie
Elementary School District 	(1981) 	PERB Decision No. 	171
(substitute 	teachers), 	Kings 	County Office of Education 	(1990)
PERB Decision No. 	801 	(nurses), 	and Stanislaus County Office of
Education 	(1993) 	PERB Decision No. 	1022 	(naturalist).)
23

have 	chosen to share 	some personnel, 	but 	shared personnel 	receive
separate 	checks 	from each entity. 	As 	in 	Paso Robles, the 	two
governing 	authorities 	(Governing 	Board 	and 	County 	Superintendent)
have 	separate 	and 	exclusive 	policy-making 	authority 	and 	the
funding 	sources 	and budgets 	of 	the 	two 	entities 	are 	separate,
distinct 	and not 	commingled. 	These 	factors, 	under Turlock and
Paso Robles, 	require 	finding that 	the District 	and County
Superintendent 	do not 	constitute 	a 	single 	employer.
Further, 	application of 	the 	four 	factors 	utilized by the
NLRB does not 	result 	in a 	finding of 	single 	employer status.
While 	there 	is 	some 	evidence 	of 	functional 	integration of
operations, 	it 	is 	also true 	that 	at 	least 	half of 	the programs of
the 	County Superintendent 	take 	place 	separate 	and apart 	from
operations of 	the District. 	More 	importantly, 	the 	separate and
exclusive 	policy-making 	authority of 	the 	District's 	Governing
Board and 	the 	County Superintendent, 	combined with the 	separately
maintained budgets 	of 	the 	two, 	defeat 	a 	finding of 	the other
three 	factors 	(centralized control 	of 	labor relations, 	common
management 	and common financial 	control).
The Association's urging of 	application of 	the 	joint
employer concept 	is 	also unpersuasive. 	While 	it 	is 	clear that
the District, 	through its 	site administrators, 	exercises some
control 	over 	approximately one-half 	of 	the 	County
Superintendent's 	certificated work 	force, 	this 	factor is
insufficient 	to 	find a 	single 	representation unit 	of 	the
District's 	and County Superintendent's 	employees 	appropriate. 	In
Jewish Hospital Association of 	Cincinnati 	(1976) 	223 	NLRB 	614 	[91
24

LRRM 1499] 	(Jewish Hospital), 	the NLRB rejected a hospital
employer's 	argument 	that 	employees 	of 	an 	auxiliary gift 	shop
should be 	included 	in the 	same 	unit 	as 	hospital 	employees because
the 	hospital 	and gift 	shop 	shared premises 	and the 	hospital 	had
"substantial 	authority in determining 	labor 	relations 	policy."
In that 	case, 	the NLRB 	found that 	auxiliary employees were on the
hospital 	payroll, 	were 	recruited and 	screened by the 	hospital
personnel 	office, 	went 	through the 	same 	orientation and security
check as 	hospital 	employees, 	were 	included in hospital 	insurance
plans, 	and used the 	same 	cafeteria and parking lot 	as 	hospital
employees. 	(ID.) 	However, 	the NLRB 	ruled the hospital 	and
auxiliary gift 	shop were 	not 	joint 	employers 	of 	the 	gift 	shop
employees 	because 	the 	auxiliary 	"independently 	and 	autonomously
determines wages 	and terms 	and conditions 	of 	employment" 	for 	its
employees. 	(Id.) 	Likewise, 	in the instant case, 	the County
-
Superintendent 	and 	District 	each 	"independently 	and 	autonomously"
control 	their own 	labor and employee 	relations policies.
In light of Turlock. 	Paso Robles and Jewish Hospital, 	the
Association's 	community of 	interest 	argument 	is 	unpersuasive.
Since 	the 	employees 	of 	the District 	and County Superintendent 	are
found to be 	employees 	of 	two 	separate public 	school 	employers,
not 	a 	single or joint 	employer, 	it 	is not possible 	to 	find that
they comprise 	a 	single 	appropriate 	bargaining unit. 	(Paso
Robles.)
The 	remaining argument 	offered by the Association, 	that 	the
District 	failed 	to 	demonstrate 	its 	proposed unit 	modification 	is
more 	appropriate 	than the 	existing unit 	configuration, 	misstates
25

PERB precedent. 	In State of 	California, 	the Board held that
"presumptive 	validity" 	attached to 	units 	established by 	its
earlier unit 	determination decision 	(Unit 	Determination 	for 	the
State of California 	(1979) 	PERB Decision No. 	110-S) 	and, 	thus,
the 	petitioner was 	required 	to 	show that 	its proposed unit
modification was more appropriate. 	However, 	no 	such 	"presumptive
validity" 	attaches 	to voluntary units. 	For example, 	in Livermore
Valley Joint Unified School District 	(1981) 	PERB Decision No. 	165
(Livermore), 	it was the parties defending the established wall-
to-wall 	classified unit 	against 	the proposed severance 	of
operations 	and 	support 	employees 	who were 	required to 	overcome
the 	presumption 	favoring 	such a proposed unit 	under 	Sweetwater
Union High School 	District 	(1976) 	EERB Decision No. 	4.24 As
previously discussed, 	the established unit 	in the 	instant 	case
was 	created through mutual 	agreement 	of 	the parties. 	Therefore,
no 	"presumptive validity" 	attaches 	to 	the 	existing unit 	and the
Association's 	contention 	regarding 	the 	burden of 	proof 	in 	this
matter 	is 	rejected.
Effect 	of Approval 	of 	the 	Requested Unit 	Modification
As noted, 	this petition comes before 	PERB under section
32781 (b) (1) 	of PERB's regulations. 	This section allows
consideration 	of 	petitions 	to 	delete 	positions 	or 	classifications
where 	the positions 	are 	"no 	longer appropriate 	to 	the 	established
unit." 	This 	regulation 	section 	is 	most 	often used concerning
24In Livermore, 	the petition seeking the 	severance 	of 	a
Board-preferred operations 	and 	support 	unit 	from 	the 	established
wall-to-wall 	unit 	was 	approved.
26

positions 	which are 	alleged to 	involve 	confidential 	or
supervisory duties 	(see, 	e.g., 	Chowchilla Union High School
District 	(1994) 	PERB Decision No. 	1040), 	or are otherwise
prohibited by statute 	from inclusion 	in the 	same 	unit. 	(Modesto
City Schools 	(1991) 	PERB Decision No. 	884 	(Modesto).) 	The
"normal" 	outcome of 	approval 	of 	such a petition results 	in the
employees 	at 	issue no longer being represented. 	For example, 	in
Modesto, 	the 	district 	sought 	removal 	of 	a non-certificated
position 	from the 	certificated bargaining unit, 	and 	its 	inclusion
in the 	classified unit, 	where 	the 	classified and certificated
units 	were 	represented by different 	employee 	organizations. 	The
Board held 	in that 	case 	that 	the 	question before 	it 	was 	limited
to 	whether 	the 	position 	should be 	excluded 	from 	the 	certificated
unit. 	However, 	the 	instant 	case 	is 	distinguished from the 	facts
in Modesto, 	in part, 	by the 	fact 	that 	the Association currently
represents 	both groups 	of 	employees 	at 	issue 	and would have
standing 	to 	request 	division of 	the 	existing unit. 	(See 	PERB
Regulation 	32781(a)(2).)
The 	instant 	case 	involves 	the 	question of whether 	two groups
of 	employees, 	employed by two different 	employers but 	currently
represented by the 	same 	employee 	organization, 	form a 	single
appropriate 	unit. 	While 	an employer 	lacks 	standing under 	PERB
regulations 	to petition 	for 	the 	division of 	a bargaining unit,
the 	County Superintendent 	does 	not 	seek 	a 	result 	where 	his
employees would 	lose 	their 	current, 	lawfully-obtained
representation, 	nor has 	the Association indicated it would
27

disclaim 	interest 	in representing the 	employees 	if placed 	in
separate units.
PERB 	regulations 	provide 	extensively 	for procedures 	whereby
a 	group 	of 	employees 	may 	seek 	to 	remove 	or 	change 	their 	current
representative. 	(See 	PERB Regulations 	32770 et 	seq.) 	The record
here 	is 	devoid of 	any indication 	that 	such an outcome 	is 	desired
by the affected employees 	in this case. 	Thus, 	it would be
inconsistent 	with 	PERB 	regulations 	and precedent 	to 	hold 	that
approval 	of 	the 	County Superintendent's 	unit 	modification
petition 	removes 	the 	County Superintendent's 	employees 	from
representation by 	the 	Association.
CONCLUSION AND 	ORDER
Having 	concluded 	that 	the 	Plumas 	Unified 	School 	District 	and
the 	Plumas 	County Superintendent 	of 	Schools 	do not 	constitute 	a
single or 	joint 	employer, 	it 	is necessary to 	find that 	inclusion
of 	the employees of both employers 	in a single unit 	is 	not
appropriate 	under the 	Educational 	Employment 	Relations Act. 	The
unit 	modification 	requested by 	the 	County 	Superintendent,
removing 	the 	certificated 	employees 	of 	the 	County 	Superintendent
from the unit 	of District 	employees, 	therefore 	is APPROVED.
For the 	reasons 	discussed above, 	and in consideration of 	the
entire 	record of 	this proceeding, 	it 	is hereby ORDERED that 	an
appropriate 	unit 	shall 	include 	only 	those 	certificated 	employees
who 	are 	employed by the 	Plumas 	County Superintendent 	of 	Schools.
The 	certificated bargaining unit 	of 	the 	Plumas 	Unified 	School
28

District 	shall 	thus 	include 	only those 	persons 	employed 	in
certificated positions 	by the 	District.25
Right 	of Appeal
Pursuant to California Code of Regulations, 	title 	8,
section 323 05, 	this 	Proposed Decision and Order shall become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within
2 0 	days of 	service of 	this Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions 	of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	323 00.) 	A document 	is 	considered 	"filed" 	when actually
received before the 	close of business 	(5 p.m.) 	on the 	last day
set 	for 	filing 	". 	. 	. o r when sent by telegraph or certified or
Express United States mail, 	postmarked not 	later than the 	last
day set for filing 	. 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32135; 	Code Civ. 	Proc., 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must 	be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each copy served on 	a party or
25It 	is 	recognized that 	this order results 	in a number of
individual 	employees 	occupying positions 	in 	two 	represented
bargaining units. 	Such dual 	representation 	in separate
bargaining units 	of 	separate 	employers 	is 	in accord with EERA and
PERB precedent. 	(See 	San Francisco 	Community College District
(1994) 	PERB Decision No. 	1068.)
29

filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs,
32300, 	32305 and 32140.)
Les 	Chisholm
Hearing 	Officer
30