New Haven Unified School District (PERB 0014E)

STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
NEW HAVEN UNIFIED SCHOOL DISTRICT,
Employer
and
NEW HAVEN TEACHERS ASSOCIATION, CTA/NEA,
Employee Organization
and
NEW HAVEN FEDERATION OF TEACHERS,
LOCAL 1657, CFT/AFT, AFL/CIO,
Employee Organization
) Case No. SF-R-216
E E R B D e c i s l o n N o 1 4
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Appearances: Galgani, Breon and Godino, by John Hudak, Attorney, for New
Haven Unified School District; Brundage, Beeson, Tayer and Kovach by Duane
B. Beeson, Attorney, for New Haven Teachers Association, CTA/NEA; Van Bourg,
Allen, Weinberg and Roger, by Robert Bezemek, Attorney, for New Haven Federation
of Teachers, Local 1657, CFT/AFT, AFL/CIO.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
PROCEDURAL HISTORY
The New Haven Teachers Association (Association) filed a request for
recognition with the New Haven Unified School District (District) requesting
recognition as the exclusive representative of certain described certificated
employees. The New Haven Federation of Teachers (Federation) subsequently
filed an intervention. A hearing was conducted by a hearing officer of the
Educational Employment Relations Board for the purpose of resolving the unit
questions.
During the course of the hearing the parties stipulated that the certi-
ficated unit should include all regular full-time teachers, all regular
part-time teachers, lead teachers, counselors, psychologists, resource
teachers, curriculum specialists, media specialists, librarians, school
{nurses, speech and hearing specialists, substitutes on contract and middle
school department heads. The parties also stipulated that the unit should
1 exclude the Superintendent, Assistant Superintendent, district directors,
(district coordinators, principals, assistant principals, head counselor,
day-to-day substitutes, and management, supervisory and confidential

employees. The parties are in agreement that home teachers working 20 hours
or less per week should be excluded from the unit,
ISSUES
Several issues are presented by this case. Are the high school department
heads and curriculum team members supervisory employees? It is the position of
the Federation that these employees are supervisory, while the Association
and the District argue they are not supervisory. We find that they are not
supervisors.
Are the interns, certificated Comprehensive Employment Training Act
staff members, home instructors working more than 20 hours per week, adult
school teachers, and summer school teachers appropriately included in the
stipulated certificated unit? The Association and Federation urge their
inclusion in the unit, It is the position of the District that they should
be excluded from the unit because they are casual employees. We need not
and do not address the issue of whether they are casual employees because
we find that none of these employees are appropriately included in the unit.
DISCUSSION
The New Haven Unified School District has an average daily attendance
of approximately 8,615 students in grades kindergarten through 12 and adult
school. There are 10 sites on which are distributed six elementary schools,
two middle schools, one high school and one adult school. The district
employs approximately 390 certificated employees.
Government Code Section 3540.1 Cm) defines "supervisory employee,"2
This section is written in the disjunctive so that an employee need possess
Annual Report, Financial Transactions Concerning School Districts of
California, Fiscal Year 1975-76, published by the State Controller, State of
California, and the 1976 California Public School Directory, published by the
Superintendent of Public Instruction, State of California.
2Section 3540.l(m) provides:
"Supervisory employee" means any employee, regardless of job description,
having authority in the interest of the employer to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or the responsibility to assign work to and direct them, or to
adjust their grievances, or effectively recommend such action, if, in connection
with the foregoing functions, the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent judgment.

only one of the enumerated authorities or: functions to be considered a
supervisor,
Government Code Section 3545 relates to unit determinations. 4 In the
Belmont Elementary School District and Petaluma City Elementary and High School
District decisions, the Board discussed the effect of Section 3545(b)(l),
regarding classroom teachers, upon its unit decisions. We are required
to consider the criteria set forth in Section 3545(a) in this decision. No
evidence was presented on the criteria of established practices or efficiency
of operation with regard to any issues regarding the appropriateness of the
unit.
High School Department Heads
The primary assignment of the 11 high school department heads is as a
classroom teacher. However, as department heads, they have additional respon-
sibilities for which they receive additional monetary compensation of from
$600 to $1800 per year, depending upon the size of the department. Although
3
Sweetwater Union High School District, EERB Decision No. 4, November 23,
1976. 4 Section 3545 provides:
(a) In each case where the appropriateness of the unit is an issue, the
board shall decide the question on the basis of the community of interest
between and among the employees and their established practices including,
among other things, the extent to which such employees belong to the same
employee organization, and the effect of the size of the unit on the efficient
operation of the school district.
(b) In all cases:
(1) 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.
(2) A negotiating unit of supervisory employees shall not be appropriate
unless it includes all supervisory employees employed by the district and shall
not be represented by the same employee organization as employees whom the
supervisory employees supervise.
(3) Classified employees and certificated employees shall not be included
in the same negotiating unit.
EERB Decision No. 7, December 30, 1976.
EERB Decision No. 9, February 22, 1977.

- department heads may work additional hours on personal time, they are not
allowed any release time for performing department head duties.
Department heads are responsible for leadership in the development of
the subject curriculum both within the department and in coordination with
the other departments. Department heads are also responsible for routine
administrative matters relating to the department.
Teachers chosen to be department heads are those who show qualities
such as being efficient and proficient in their discipline. They usually
have four or more years- of teaching experience. They are not required to
have a specialized credential.
The curriculum responsibilities of department heads involve ensuring
that the department's written curriculum is updated and consistent with
district policy, and coordinating the development of new courses in the
department. All department heads attend regular meetings of the Curriculum
Council at which they discuss curriculum matters. Department heads may
request teachers to give evidence of planning, pursuant to a district policy
requiring teachers to furnish, such evidence. In connection with their
curriculum duties, department heads must be familiar with instruction in
the classroom as well as the written curriculum and thus on occasion
they will informally visit a classroom to observe for five or ten minutes.
Such observation is optional, however, and some department heads seldom
observe teachers. No written observation reports are made.
In connection with their curriculum responsibilities, department
heads preside at regular department meetings and may call additional
department meetings. Curriculum matters discussed are grading policies,
the manner in which the curriculum and lesson plans are to be written, and
the manner and format for submitting testing materials to the administration.
In addition to curriculum responsibilities, department heads are
responsible for routine administrative matters relating to the department.
Such matters involve presiding at department meetings, monitoring the
department budget, keeping inventory of department supplies and equipment,
and coordinating the request of teachers for the assignment of classes
and classrooms.

Administrative matters discussed at department meetings include the
department budget, what to do at an open house, assignment of classes, classrooms
and department equipment, and administrative directives channeled from the
administration through the department head to the department members.
Department heads exercise merely an accounting function with regard to
the budget. At the beginning of each year;, each department is allocated a certain
amount of money. At department meetings, the teachers set spending priorities
through group discussion. Once priorities are set, department heads apply the
priorities. They keep track of how the money is spent, how much is left, and in
the spring warn the teachers to conserve supplies if money is running short.
Department heads are also responsible for keeping inventory of the department's
supplies and equipment.
Department heads coordinate teacher requests for the assignment of classes
and classrooms. The various departments generally make a group recommendation
for assignments based on a department consensus. These assignments are not
independent recommendations made by the department heads although they are
forwarded to the Principal through the department heads. The Principal assigns
teachers to specific classes. The Principal attempts to use, but is not bound
by, the department recommendations.
The scheduling of classes is determined primarily by the master schedule.
Classroom assignments are determined by the person in charge of the master
schedule and the Assistant Principal for Curriculum and Evaluation based
upon seniority and logistics such as classroom availability. The Principal
or Assistant Principal assigns extracurricular activities to teachers.
In addition to duties regarding curriculum and department administrative
matters, department heads have occasional peripheral involvement in personnel
matters. Department heads do not, however, have authority to hire, transfer,
suspend, lay off, recall, promote, discharge, reward, discipline or adjust the
grievances of a classroom teacher, or to effectively recommend such action.
Department heads are involved to only a limited extent in the hiring of
teachers. The district establishes a screening and interviewing committee
consisting of the Principal and several teachers in the department having
the job vacancy. The committee includes the department head if available.
The department head may be unavailable during the summer months. After each
interview, each member of the committee completes a separate evaluation form

and gives it to the Principal. A group recommendation which the Principal
may accept or reject, is developed from the collective evaluations. The
Principal makes a recommendation to the Director of Personnel who makes a
recommendation to the Superintendent. The school board actually hires the
teachers upon the recommendation of the Superintendent. The department
head does not make a hiring recommendation apart from the evaluation submitted
as a member of the interviewing committee.
Transfers are made pursuant to recommendations by the Principal to the
district office. Within a school, only the Principal may transfer a teacher
from one department to another if the teacher is prepared for duties in the
new department. The high school Principal during the 1975-76 school year said
he has had comments from department heads that a teacher was not qualified to
teach in a particular department and recommending that the teacher be assigned
to the department in which he had his major preparation. He stated that he
takes new information into consideration no matter what its source. It was
not shown that such comments are made by department heads more often than by
other teachers.
Only the Superintendent and the school board have the authority to discharge
a teacher. Letters of reprimand come only from the Principal. The high school
Principal during the 1975^-76 school year stated that, as Principal, he recom-
mended the discharge or discipline of employees. When he was Principal, no
department head ever recommended the discipline of an employee.
Department heads have no authority regarding the grievances of teachers.
If a teacher has a complaint about the way a department is being run, as a
general practice and matter of professional courtesy, the complaint will be
discussed either at a department meeting or individually with the department
head. A teacher who is still dissatisfied will go to the Principal or Assistant
Principal for Curriculum and Evaluation. If a teacher has a complaint about
another teacher, the preferred way to handle it is by personal confrontation.
If the problem is not resolved, the teacher may suggest to the department
head that the problem be discussed at the next department meeting.
Promotions require school board action on the recommendation of the
Superintendent. However, the annual evaluation of a teacher is presumably
a basis for a promotion recommendation. The annual evaluation is based in
part upon written reports, termed classroom observations and general observa-
tions, which are placed in the teacher's evaluation file. Classroom

observations are completed by members of the curriculum, team and not by
department heads. General observations are voluntary and may be completed
by any teacher or administrator reporting on a teacher's activities outside
the classroom, A general observation may contain positive, negative, or
neutral comments. Of 130 general observations completed in the 1975-76 school
year, only 17 were completed by department heads. Of the remaining 113, one
was completed by a teacher and 112 by administrators. Of the 17 general
observations, eight were submitted by one department head, four by another,
and five department heads submitted no observations at all.
The Assistant Principal for Curriculum and Evaluation or another admin-
istrator, not a department head, will investigate to determine whether or not
a teacher has a teaching problem.. A department head may be asked to provide
assistance to a teacher once it is ascertained there is a problem.
On the basis of the foregoing, we note that department heads are selected
on the basis of expertise and experience in the departmental subject matter.
Making informal classroom observations, chairing meetings, participating in
the hiring process and assisting teachers with teaching problems are all duties
of department heads which result from the utilization of their special skills
in the departmental subject matter. These activities indicate that department
heads are merely more experienced teachers giving advice and assistance to
those less knowledgeable. The submission of 17 general observation reports
does not indicate department heads are supervisors because they are neither
required to submit such reports nor, as a matter of practice, do most department
heads regularly submit them.
The administrative activities of department heads regarding the balancing
of the budget, inventory of supplies and equipment, assignment of classes,
handling complaints about how the department is run, acting as a communication
liaison between department members and the administration, and holding meetings,
are not supervisory activities, and moreover are merely routine in nature and
require little, if any, exercise of independent judgment.
We find there is nothing in the record to demonstrate that high school
department heads fall within the Government Code Section 3540.l(m) definition
of "supervisory employee." They do not perform or effectively recommend
any of the actions listed in the definition. Instead, it is clear that
department heads are primarily classroom teachers, and in their assignment

as department heads function only as an experienced employee giving assistance
to those less experienced or as an administrative coordinator within a
department.
Curriculum Team Members
The curriculum team at the high school performs functions relating directly
to the implementation and assessment of the curriculum. The members of the
team in the 1975-76 school year were the high school Principal, Assistant
Principal for Curriculum and Evaluation, and six teachers. The six teacher
team members are selected yearly from the staff at large through an application
process. A teacher may reapply each year and continue serving if selected.
Curriculum team members receive release time for the performance of curriculum
team duties.
The responsibility of the curriculum team is to insure that the written
curriculum is translated into classroom instruction. In this regard, in 1975-76
two team members made formal written observations of teachers and four
.made informal unwritten classroom observations. The two, who were teachers,
were selected by the Principal and the Assistant Principal for Curriculum and
Evaluation.
The formal classroom observation is scheduled by the curriculum team
for a minimum of 20 minutes without warning to the teacher. It is for the
purpose of curriculum evaluation and results in a written classroom observation
report. Usually three classroom observations of each teacher are conducted each
year. The written reports are placed in the teacher's personnel file.
The formal classroom observation is also used in the teacher evaluation
process. At the end of the school year the Principal reviews the observations
when he evaluates a teacher. The Assistant Principal for Curriculum and
Evaluation may also review the observations if he has a specific concern about
a teacher.
In addition to conducting classroom observations, the members of the
curriculum team meet to discuss the written course of study to determine how
tests relate to it, determine the readability of books, visit classrooms to
observe how the curriculum is implemented in subject areas under intensive
review, and write interim and final reports. The team does not discuss the
techniques or problems of a particular teacher except as they relate to the
curriculum being considered.

We note that the duties of the curriculum team members relate only to
the development and implementation of the curriculum, This function is not
supervisorial because It does not involve any of the activities listed in
Government Code Section 3540,1(m).
The curriculum team members are arguably supervisory only because the
written classroom observation reports are used in the annual evaluation process.
Presumably, the evaluation process may be part of the basis for a promotion,
discharge or other personnel action. The observations, however, are only one
source of information for the evaluation, The classroom observation form
does not have a section titled "Recommendations," and recommendations
regarding the promotion, transfer, suspension, discharge, reward, discipline
or assignment of the observed teacher are not made by the observer. There
was no evidence regarding the extent to which the observations are relied
upon by those who review them as part of the evaluation process. This
limited involvement of the curriculum team members in the evaluation process
does not give them supervisory status.
Interns
Each year the district hires approximately five to seven interns. Interns
are hired when it is impossible to find a regular credentialed teacher with
the subject combination requirements needed by the district. They have
achieved a baccalaureate degree, but have not yet completed their education
leading to a teaching credential. They possess a temporary intern credential.
The district has an arrangement with Stanford University to obtain interns.
Interns employed by the district continue to attend college on a reduced load
basis. They are hired for a semester or full year, but not exceeding a full
year. Interns teach either two or three periods a day out of a normal five-
period day. While Interns are generally used only in the high school, on
occasion an intern has been hired at the elementary or middle school level
to work a full day.
An intern functions as a regular teacher, and performs all the extra
duties of a regular teacher, such as yard and hall duty. Interns have complete
responsibility for the classes taught, but are monitored more closely than
regular teachers.

Education Code Sections 133221 et "seq., the Teacher Education Intern Act
of 1967, provide for special supervisory help and guidance for interns by college
and university staff members and by the school district. Section 13236 provides
that the district may reduce the normal salary paid to an intern by up to one-
eighth in order to pay the salary of the supervisor, although an intern may
never be paid less than the minimum salary required to be paid by the state to
a regularly certificated teacher. Section 13241 provides that interns shall
not acquire tenure while serving on an internship credential, although each
year of service as an intern counts toward the achievement of tenure.
While the interns have duties similar to those of the regular teachers,
we note that their employment is merely incidental to their education. The
Education Code provisions regarding the supervision of interns highlight the
educational nature of their work experience. Their continued employment
necessarily depends upon satisfactory progress toward their regular teaching
credential and they have no expectancy of employment in the district after
completion of the credential. Because interns are primarily students, we find
they do not share a community of interest with the regular teachers and
therefore exclude them from the stipulated unit.
Certificated CETA Staff Members
In the 1975-76 school year, the district hired six Comprehensive Employment
Training Act (CETA) instructors. The CETA program operates year-round. CETA
instructors teach unemployed students between the ages of 18 and 23 who are
paid with federal funds to come to class to learn a trade. Students enrolled
in the CETA program are not counted as regular or adult students for the purpose
of the district's average daily attendance. None of the CETA students attends
the regular daily school sessions. The program is supervised by a CETA employee
who is not involved in supervising the regular school program,
CETA instructors teach sheetmetal, welding, clerical skills, and other
vocational subjects. The instructors hold an adult vocational credential,
which does not require a baccalaureate degree, as opposed to a regular teaching
A pertinent case dealing with medical interns, in Erie County, New
York PERB, 9-3029 (1976).
-10*

credential.
o
Classes are held at the high, school and an additional facility.
CETA instructors at the high school teach between the hours of 2:30 and 6:30 p.m.
while regular high school classes end at 2:30 p.m. They work as few as
18 hours a week and as many as 37% hours per week.
CETA instructors are paid on an hourly basis not related to the
regular teachers' wage schedule. They do not receive any vacation benefits
from the district but may receive regular health and dental benefits if they
work 30 or more hours a week. CETA instructors are paid from federal funds
which the district solicits on an annual basis. The funding received varies
yearly and the number of employees hired also varies yearly depending on the
amount received. CETA instructors are classified as temporary because there
is no guarantee that they will be reemployed in the succeeding school year.
There is no policy or practice of the district regarding the continued hiring
of such employees.
Education Code Section 13329 provides that the terms and conditions of
employment for employees working in categorically funded programs shall be
mutually agreed upon in writing by the employee and the governing board. The
section also states that such employees may be terminated at the expiration of
the contract or specially funded project without regard to other requirements
of the Education Code respecting the termination of probationary or permanent
employees.
8
Education Code Section 13132.
9Education Code Section 13329 provides:
The governing board of any school district may employ persons possessing an
appropriate credential as instructors in classes conducted under contract with
public or private agencies, or other categorically funded projects of indeter-
minate duration. The terms and conditions under which such persons are employed
shall be mutually agreed upon by the employee and the governing board and such
agreement shall be reduced to writing. Service pursuant to this section shall
not be included in computing the service required as a prerequisite to attainment
of, or eligibility to, classification as a permanent employee of a school district
unless (1) such person has served pursuant to this section, for at least 75 per-
cent of the number of days the regular schools of the district by which he is
employed are maintained, and (2) such person is subsequently employed as a
probationary employee in a position requiring certification qualifications.
Such persons may be employed for periods which are less than a full school year
and may be terminated at the expiration of the contract or specially funded
project without regard to other requirements of this code respecting the
termination of probationary or permanent employees.
This section shall not be construed to apply to any regularly credentialed teacher
who has been employed to teach in the regular educational programs of the school
district as a probationary employee before being subsequently assigned to any one
of these programs.
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The foregoing facts show that the CETA program is entirely separate
from the regular school program. Teacher qualifications, termination and
reemployment rights, supervision, the subjects taught, the students taught,
work hours, wages, benefits and funding are all unique in the CETA program.
On the basis of these substantial differences between the CETA instructors
and the regular district teachers, we find that the CETA instructors do not
share a community of interest with the regular teachers and therefore exclude
them from the stipulated unit. Home Instructors
Home instructors tutor ill students in the hospital or at home to keep
them abreast of the work being performed in the classes the students would
otherwise attend. Home instructors may work with the students' regular
teachers to coordinate the home instruction with the classroom instruction.
Home instructors; are supervised and evaluated by the school Principal, The
1975-76 high school Principal stated that there is no formal evaluation procedure
for home instructors and he merely informally solicited information from those
who worked with the home instructors. He said that evaluation actually occurs
only where a problem arises.
The district employed six home instructors in the 1975-76 school year.
The teachers on the home instruction list have expressed their willingness to work
on an as-needed basis. Work is assigned to home instructors depending upon their
subject specialization, the needs of the district, and the number of hours the
instructor wishes to work. Like regular classroom teachers, home instructors
hold a regular teaching credential. Additionally, they must have a "special
fitness" to perform the duties of a home teacher according to Education Code
Sections 13286 and 13287.
Home instructors do not enter into a written contract with the district
even if assigned for an entire year. The district classifies them as substitute
teachers. They do not receive fringe benefits and are paid on an hourly basis.
If a regular teaching position in the district opens, home instructors are not
given any preference for hiring. Two of the home instructors had been employed
by the district in the previous two school years while four were new in 1975-76.

Like day-to-day and long-term substitutes? home instructors are called
on an as-needed basis and they have no reemployment rights. Their working
conditions and the terms of their employment have little in common with those
of the regular teachers. We therefore conclude that the home instructors
lack a community- of interest with the regular teachers and exclude them from
the stipulated unit. The facts and result in this case are consistent with
the Petaluma decision,
Adult School Teachers
There were approximately 20 adult school teachers in the 1975-76 school
year. Most taught five or six hours per week. Approximately five of the 20
teachers were also employed by the district in the regular day program. The
selection committee for adult school teachers consists of the Superintendent
of the District, the Principal of the adult school, and adult school teachers.
Adult school teachers who teach vocational subjects need possess only a designated
subjects teaching credential which does not require a baccalaureate degree.
The adult school program is on a quarter system while the regular school
program is on a semester system. Adult school classes are conducted at a
school site, generally in the evening.
Adult school teachers are not considered by the district to be part of
the regular district staff. They are classified as substitutes called on an
as-needed basis. They do not receive fringe benefits and they are paid on an
(hourly basis. Adult school teachers do not have a written employment contract.
If an insufficient number of students enrolls in a class, the class is
cancelled. The class may even be cancelled three or four weeks into the
quarter and the teacher dismissed if the enrollment drops.
Education Code Sections 13328 and 13309, dealing with tenure, provide
a measure of job security for adult education teachers. Achievement of tenure
by adult school teachers is separate from that for regular teachers provided
in Education Code Section 13304, An employee cannot be tenured in both adult
school and day school as a result of having served the required probationary
period in each system. The employee must select between the two permanent
classifications.12
"'"Education Code Sections 13128 and 13132,
12
Education Code Section 13311.
-13-

The foregoing facts indicate that the adult school program is entirely
separate from the regular day school program. We therefore conclude that adult
school teachers lack a community of interest with the regular teachers and
exclude them from the stipulated unit, The facts and result in this
case are consistent with the Petaluma decision.
Summer School Teachers
There were 63 summer school teachers in the 1976 summer program. Sixty
of these were regular district teachers and three were hired from outside the
district. These numbers reflect the district's efforts to staff the summer
program first with regular district teachers.
The Director of Instruction Services is in charge of the summer school
program and responsible for its staffing. The summer school staff is selected
in April and its size depends upon student enrollment.
All summer school teachers are required to have a regular teaching
credential. However, summer school teachers do not receive fringe benefits
and are paid on an hourly basis.
The summer school classes are held at district school sites. The
Principal is the primary evaluator of the summer school teachers at each school,
but there is no formal evaluation.
According to Education Code Section 13332, a teacher cannot obtain
tenure as a summer school teacher, and employment as a summer school teacher
is not counted in computing whether a teacher is classified as a permanent
employee of the district.
Because of the tenuous and short-term nature of the employment of summer
school teachers and because of the separate nature of the summer school program,
we find that the summer school teachers lack a community of interest with the
regular teachers and therefore exclude them from the stipulated unit. The
facts and result in this case are consistent with the Belmont and Petaluma
decisions.
ORDER
The Educational Employment Relations Board directs that:
1. The following unit is appropriate for the purpose of meeting and
negotiating, provided an employee organization becomes the exclusive representative:
All regular full-time teachers, all regular part-time teachers,
lead teachers, counselors, psychologists, resource teachers, curriculum
-14-

specialists, media specialists, librarians, school nurses, speech and hearing
specialists, substitutes on contract, middle school department heads, high
school department heads and curriculum team members; but excluding Superintendent,
Assistant Superintendent, district directors, district coordinators, principals,
assistant principals, head counselor, day-to-day substitutes, interns, certifi-
cated Comprehensive Employment Training Act staff members, home instructors
working more than 20 hours a week, adult school teachers, summer school teachers,
and management, supervisory and confidential employees.
2. 	Within 10 workdays after the employer posts the Notice of Decision,
the employee organizations may demonstrate to the Regional Director at least
30 percent support in the above units. 	The Regional Director shall conduct
an election in each unit at the end of the posting period if 	(1) more than
one employee organization qualifies for the ballot, or (2) only one employee
organization qualifies for the ballot and the employer does not grant voluntary
recognition.
/By: 	Raymond J. J^nzaLe's, Member 	Regiria^l Alleyne, 	Chairman
Date: 	March 22, 1977
Jerilou H. Cossack, Member, concurring in part and dissenting in part:
I agree with my colleagues that department heads and curriculum team mem-
bers are not supervisors within the meaning of Government Code Section 3540.1(m)
and that they should, 	therefore, be included in the negotiating unit. 	I also
agree that adult education and CETA instructors should be excluded from the
negotiating unit since they do not possess a sufficient community of interest
with those in the overall unit. 	I disagree with the majority, however, with
respect to their exclusion of the classifications of interns, 	summer school
teachers and home instructors.
Interns
The majority characterizes the employment relationship of interns as being
"...merely incidental to their education." 	I find the characterization to be
misleading, at best. 	In fact, 	there is little if any difference between the
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interns in the instant case and other classifications whom we have held to be
appropriately included in a certificated unit. In Belmont Elementary School
District we unanimously agreed that part-time teachers teaching less than
51 percent of a full-time assignment and temporary teachers should be included
in the certificated unit; in Grossmont Union High School District2 we unanimously
agreed that temporary teachers should be included in the certificated unit. In
the instant case, interns work on a contract for a semester or more, just as the
temporary teachers in Belmont and Grossmont, performing every function and
assuming every responsibility of a regular teacher not only for individual classes
but also for extra duty assignments such as yard and hall duty. Similar to the
part-time teachers included in the unit in Belmont, no intern teaches fewer than
two-fifths of a full-time load; some interns teach a full-time load. Interns
are evaluated by the principal, just as are regular teachers. They are paid
on the first step of the teachers' salary schedule. Full-time interns receive
fringe benefits. While the record is unclear about the extent to which interns
are employed as regular teachers after their internship is completed, it is
clear that at least some interns are so employed. In addition, time spent as
an intern counts toward the achievement of tenure.
The majority's reliance on County of Erie,3 a New York case dealing with
the unit placement of medical interns, is inapposite. Unlike the instant case,
medical interns there worked under different supervision with different work
schedules and were required to serve at hospitals in order to obtain the desired
license or certification. Their program was controlled and designed by regulatory
bodies beyond the hospital administration. In fact, their only similarity with
the interns in the instant case is the terminology.4
1 EERB Decision No. 7, December 30, 1976.
2 EERB Decision No. 11, March 9, 1977.
3 9 NY PERB 3029 (1976).
4 See The Juilliard School, 208 NLRB 153, 85 LRRM 1129 (1974), in which
"per diem" employees who worked only on a "need basis" were included in a unit
of stage department employees employed at a nonprofit music, drama and dance
school. See also Rensselaer Polytechnic Institute, 218 NLRB No. 220, 89 LRRM
1844 (1975), in which a university's terminal contract faculty members who had
been notified that they would be terminated at the end of the contract period
were included in a unit with other faculty. See also Echerd's Market, Inc.,
183 NLRB 337, 74 LRRM 1319 (1970) in which two student employees were included
in a unit of all retail store employees since they were temporary workers hired
for a definite term.
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Accordingly, I would include interns in the overall certificated unit.
Summer School Teachers
The majority's exclusion of the entire classification of summer school
teachers is a travesty. At the hearing, the parties to this proceeding agreed
that the unit would include summer school teachers who were also full-time and
part-time teachers. The only summer school teachers about whom there was a
dispute were those who were solely employed as summer school teachers. The
majority has ignored the precedent established by this Board in Tamalpais Union
High School District and Pittsburg Unified School District that we do not
intend to look behind the stipulations of the parties unless such stipulations
are clearly contrary to the provisions of the Act or clearly contravene the
rights guaranteed by the Act. Yet without comment or acknowledging the parties'
agreement, the majority blithly excludes the entire classification of summer
school teachers. No post-hearing brief seeks to disregard the stipulation.
The stipulation is not as to a matter of law, nor is it incompatible with the
Act or any policy of this Board. Accordingly, we as well as the parties are
bound by it.
The majority's characterization of the status of summer school teachers as
"tenuous and short-lived" is absurd, since 60 of the 63 summer school teachers
are regular district teachers. The only result of specifically excluding the
classification of summer school teachers from the negotiating unit is to fore-
close negotiations about those matters within the scope of representation with
respect to all summer school teachers in the event either the Association or
the Federation is certified as the exclusive representative of the certificated
unit. For the reasons set forth in Belmont, and Petaluma, I would include the
classification of summer school teachers in the negotiating unit. I therefore
find it unnecessary to determine whether some or all of those persons employed
solely as summer school teachers are eligible to vote in the election.
5 EERB Decision No. 1, July 20, 1976.
EERB Decision No. 4, November 23, 1976.
7 See International Kitchens, 189 NLRB 79, 76 LRRM 1567 (1971); cf. Estate
of Burson, 51 Cal. App. 3d 300, 306 (1975); People v. Southern Pacific Co.,
208 Cal. App. 2d 745, 747-748 (1962); Barendregt v. Downing, 175 Cal. App. 2d
733, 736 (1959).
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Home Instructors
Finally, 	I take exception to the majority's exclusion of the classification
of home instructors from the unit and would find here, as in Petaluma, that
they share a sufficient community of interest with regular teachers to be
included in the overall certificated unit. 	In the instant case, no party sought
to include home instructors who taught less than 20 hours per week. 	Unlike the
situation in Lompoc Unified School District,
8
the home instructors sought to be
included in the unit in the instant case are those whose employment relation-
ship with the district is substantial. 	They are required to be credentialed;
some home teachers are also regular teachers; and some persons are employed as
home instructors year after year. 	Accordingly, 	I would include home instructors
in the overall unit.
Je/ilou H. Cossack, Member
8EERB Decision No. 13, March 17, 1977.
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