Antioch Unified School District (PERB 0037E)

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STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
ANTIOCH UNIFIED SCHOOL DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
ANTIOCH CHAPTER 85,
Employee Organization,
and
AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, LOCAL 2575,
Employee Organization.
Case Nos. 	SF-R-146
SF-R-290
EERB Decision No. 	37
November 7, 	1977
Appearances: 	J. Michael Taggart, Attorney (Paterson & Taggart), for the Antioch
Unified School District; William D. Dobson, Attorney, for California School Employees
Association, Antioch Chapter 85; Hirsch Adell, Attorney (Reich, Adell & Crost), for
American Federation of State, County and Municipal Employees, Local 2575.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION AND ORDER
This case is before the Educational Employment Relations Board on the exceptions
of American Federation of State, County and Municipal Employees, Local 2575, to the
attached proposed hearing officer's decision finding an operations-support services unit,
including food services employees not requested by AFSCME, an appropriate unit. 	AFSCME
excepts to the hearing officer's decision in that (1) 	the hearing officer incorrectly
found that AFSCME failed to sustain its burden of proving that its proposed negotiating
unit of custodial and maintenance employees has a community of interest separate and
distinct from food services workers; 	(2) 	the hearing officer incorrectly found that
the evidence does not support the placement of food services workers in a residual
unit of office-clerical and technical personnel; and (3) 	the hearing officer incorrectly
concluded that the statutory unit criterion on "the extent to which . 	. 	. employees

belong to the same employee organization does not affect the outcome in this
matter."
The hearing officer's proposed decision is adopted as the decision of the
Educational Employment Relations Board, as modified by the matters noted in this
decision. 	The proposed order of the hearing officer is adopted as the order of
1
the Educational Employment Relations Board.
In the brief in support of its exceptions, AFSCME argues that "the task of
the EERB is to rule on whether a sought unit is appropriate", and, correlatively,
that "the [EERB] need not determine the ultimate unit or the most appropriate unit".
Therefore, AFSCME concludes, the EERB should determine that AFSCME's request for a
unit of custodians, groundsmen and gardeners, maintenance employees, bus drivers,
warehousemen and storekeepers, excluding food services employees, should be deemed an
appropriate unit, even though the requested unit plus the unrequested food services
employees, might be a more appropriate unit.
AFSCME places heavy reliance upon Alameda County Assistant Public Defenders
Association v. County of Alameda,2 a California Court of Appeal decision stating that
the unit criteria in the Meyers-Milias-Brown Act,3 like the unit criteria in the
National Labor Relations Act,4 require a determination that a requested representation
unit is an appropriate unit rather than the most appropriate unit. 	AFSCME did not
expressly make this argument at the hearing or in its post-hearing brief to the hearing
officer, whose proposed decision is for that reason understandably silent on the issue.
1AFSCME's request for oral argument before the Board itself is denied.
2 33 C A . 3d 825, 109 Cal. Rptr. 392 (1973).
3 Gov. Code Sec. 3500 et seq.
4 29 U.S.C. 151 at seq.
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We conclude that the unit-determination criteria in Government Code Section 3545
require a weighing and balancing in respect to each other in order to achieve
consistency of application and the general objectives of the Act.5 	For reasons
to be noted, 	this balancing and weighing of the Act's unit-determination criteria
preclude the Board from describing the methodology of unit determination with a
narrow choice between the labels "an" and "most".
That the Legislature fully intended to provide the EERB with general guidelines
and wide discretion in applying them is manifested by the presence of not one but
three statutory unit criteria and the rather amorphous nature of each one. 	Government
Code Section 3545 provides in part:
(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.
The Legislature did not state how each of the enumerated criteria should be
weighed in respect to the others. 	If given equal weight, they would tend to conflict
with each other in some cases. 	This presents a difficult challenge for the EERB in
considering the mass of detailed facts usually presented in unit determination cases.
For example, the application of community of interest criteria, alone, might
5The objectives of the Educational Employment Relations Act are stated in
Gov. Code Sec. 3540, which provides in part:
It is the purpose of this chapter to promote the
improvement of personnel management and employer-
employee relations within the public school systems
in the State of California by providing a uniform
basis for recognizing the right of public school
employees to join organizations of their own choice,
to be represented by such organizations in their
professional and employment relationships with public
school employers, to select one employee organization
as the exclusive representative of the employees in an
appropriate unit, and to afford certificated employees
a voice in the formulation of educational policy.
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justify multiple units of a number in conflict with the requirement that
excessive unit fragmentation not impair an employer's efficiency of operations. 	On
the other hand, evidence on efficiency of operations, viewed alone, might favor
decidedly fewer units than the number deemed appropriate if community of interest
criteria are alone applied. 	Application of the criterion of the extent to which
employees belong to the same employee organization, alone, or of efficiency of
operations, alone, could produce units lacking in the requisite community of interest.
These difficulties in avoiding internal inconsistency and conflict are compounded by
the fact that the community of interest criterion itself contains a number of elements
which the Board must weigh and balance in cases calling for their application.6
At present, unit-resolution problems are further compounded by the relative
newness of the EERA and the real possibility that the passing of time and the
accumulation of experience with structured units will prompt a shift in the assignment
of EERA unit-criteria priorities. 	The Board is currently giving more weight to
community of interest than it is to other EERA unit criteria.7 We have decided,
for example, 	that "[b]ecause of the unspecified and possibly unilateral
nature of the unit designation procedure which existed in this district
under the Winton Act, 	in determining appropriate negotiating units in
6 The EERA does not define community of interest, but the EERB follows the
National Labor Relations Act definition fashioned by the National Labor Relations
Board in Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962), in requiring consideration
of differences in job qualifications, training and skill, wages, methods of
compensation, hours of work, fringe benefits, supervision, frequency of contact with
other employees, integration with work functions of other employees, and interchange
with other employees. 	See Los Angeles Unified School District, EERB Decision No. 5,
November 24, 1976; Lompoc Unified School District, EERB Decision No. 13, March 17, 1977.
7E.g., Fremont Unified School District, EERB Decision No. 6, December 16, 1976.
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this case we give little weight to 'established practices' as they relate to the
composition of the unit represented under the authority of that Act." 	Another
year from now, 	the criterion of established practices might well be given more
weight than the EERB now gives community of interest, for once units are established
under the EERA and negotiating commences with an exclusive representative, 	followed
by a negotiated agreement covering employees in that unit, a new representation
petition seeking a different unit might well be decided with a greater reliance on
negotiating history under the Educational Employment Relations Act. 	The possibility
of a stable negotiating relationship in a given unit is the very characteristic
that the community-of-interest criterion is designed to measure.
8
Another shift in unit-criteria emphasis may take place with the passing of time.
In the absence of statutory units predating the EERA, it is difficult now for school
employers to offer convincing evidence that a requested unit or units will
impair efficiency of operations, but current and future experience with multiple units
may in some instances permit production of the required evidence.
We of course resolve none of these future cases at this time, nor do we suggest
what time frames might cause the Board to shift its emphasis from one unit criterion
to another or from one group of unit criteria to others. 	We cite these possibilities
only to illustrate how the Legislature has necessarily allowed the Board flexibility
in balancing and weighing the unit criteria contained in Government Code Section 3545,
and why we must reject a strict application of either "an" appropriate unit or a "most"
appropriate unit criterion as inconsistent with a fair and rational application of the
unit criteria.
Viewing the EERA's literal unit criteria terms, we have no difficulty in rejecting
a strict "most" appropriate unit standard, since the Act does not use the term "most"
appropriate unit. 	The language of the Act does not strictly suggest the "an
appropriate unit" standard. 	If the "an" standard were specified, it would logically
8
Sweetwater Union High School District, EERB Decision No. 4, November 23, 1976.
See Fremont Unified School District, EERB Decision No. 6, December 16, 1976; San Diego
Unified School District, EERB Decision No. 8, February 18, 1977.
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be found in Section 3545(a) or perhaps in Section 3541.3(b), quoted below.
Section 3545(a) provides:
In each case where the appropriateness of the unit is an
issue, 	the board shall decide the question on the basis
of . . .9 	[Emphasis added.]
Section 3545(a) does not provide:
In each case, 	the board shall determine whether a unit
is an appropriate unit on the basis of 	. . . 	[Emphasis added.]
Section 3541.3 provides in pertinent part:
The board shall have all of the following powers
and duties . . .
(b) To determine in disputed cases, or otherwise approve,
appropriate units. 	[Emphasis added.]
It does not provide:
(b) 	To determine in disputed cases, or otherwise approve,
an appropriate unit or units. 	[Emphasis added.]
In those sections of the Act where the words "an appropriate unit" do appear, 	the
use of the word "an" is the result of the grammatical context. 	It is not a command
of the Legislature to choose the standard of "an appropriate unit".10
Beginning with our threshold unit decision for classified employees, 	Sweetwater
Union High School District,11 and continuing thereafter with a line of cases similarly
9The entire text of Gov. Code Sec. 3545(a) is quoted supra in the text.
10 See, e.g., Gov. Code Sec. 3544.5(d), concerning the filing of representation
petitions rather than the determination of appropriate units: 	"A petition may be filed
with the board 	. . . by 	. . . . 	An employee organization alleging that the employees in
an appropriate unit no longer desire a particular employee organization as their
exclusive representative . . . . 	[Emphasis added.] 	See generally Gov. Code Sec. 3544,
3544.l(b), 3544.3, 3544.5. 	Gov. Code Sec. 3546(a), on "organizational security", uses
the words "the appropriate unit".
11 EERB Decision No. 4, November 23, 1976.
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decided,12 the Board, in applying the unit criteria as described here, has
determined that the two or three basic units found to be appropriate in those
cases reflect a proper balance between the harmful effects on an employer of
excessive unit fragmentation and the harmful effects on employees and the
organizations attempting to represent them of an insufficiently divided
negotiating unit or units. 	Applying these principles to the facts in the present
case and the matters excepted to, we conclude that the hearing officer correctly
relied on prior EERB precedents and the facts established in this record to find
the unit requested by AFSCME not appropriate without the inclusion of food services
employees. 	AFSCME argues that our decision in Foothill-DeAnza Community College
District13 dictates a different result. 	We disagree.
In the Foothill-DeAnza case, food services employees were not included in a
unit similar to the unit sought by AFSCME in this case, but only because no party
sought their inclusion in the operations-support services unit found to be appropriate
and no party argued that it would be inappropriate to include food services employees
in a residual unit.14 Here, in sharp contrast, the employer seeks to include food
12
Fremont Unified School District, EERB Decision No. 6, December 16, 1976; San
Diego Unified School District, EERB Decision No. 8, February 18, 1977; Foothill-DeAnza
Community College District, EERB Decision No. 10, March 1, 1977.
13 EERB Decision No. 10, March 1, 1977.
14
In Foothill-DeAnza, California School Employees Association at all times argued
in favor of a wall-to-wall unit. 	That position might be looked upon as creating a
dispute on the issue of the placement of food services employees, since an argument
in favor of a wall-to-wall unit appears to be inconsistent with an argument in favor of
the exclusion of food services employees from a unit of maintenance and custodial
employees. 	But a party seeking and failing to obtain a wall-to-wall unit must be
presumed, in the absence of evidence to the contrary, to have no position on the issue
of whether one classification of employees should be included or excluded from one of
several multi-classification units.
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services employees in an operations-support services unit and AFSCME seeks their
exclusion from that unit. 	Thus, in this case, the placement of food services
employees in or out of the operations-support services unit is a disputed issue
requiring resolution by this Board; 	the absence of a similar dispute in Foothill-
DeAnza only required that the EERB accept the agreed-upon placement of food services
employees so long as that disposition was "not inconsistent with a clear and specific
mandate in the unit-criteria provisions" of the EERA.15
AFSCME also places heavy reliance upon Alameda County Assistant Public
Defenders Association v. County of Alameda.16 In that case, the Court of Appeal
rejected an employer's contention that a proposed unit of public defenders should be
merged with an overall unit of all other professional employees in the county. 	In
addition to basing its decision on the rejection of a "most" appropriate unit standard
and its reliance on the "an" appropriate unit criterion, as specifically found in the
Meyers-Milias-Brown Act,17 which governed the case, 	the Court also stated that the
public defenders had no community of interest with other professional employees in the
county. 	Specifically, the Court held:
Certainly attorneys have a distinct function from
librarians, planners, etc. 	Public defenders have
separate supervision, place of work and hiring
procedures. 	There is very little if any interchange
between public defenders and the other professions
15 See Tamalpais Union High School District, EERB Decision No. 1, July 20, 1976.
1 6 3 3 C A . 	3d 825, 109 Cal. Rptr. 	392 	(1973).
17 Gov. Code Sec. 3507(d) provides:
Such rules and regulations 	[by a public agency] may include
provisions for *** (d) exclusive recognition or employee
organizations formally recognized pursuant to a vote of the
employees of the agency or an appropriate unit thereof . 	. 	.
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grouped together in [the unit proposed by the County].
It does seem incongruous that assistant public defenders
should be grouped in a bargaining unit with auditors,
planners, rodent and weed inspectors. 	The attorneys
in the public defender's office are sui generis, having
little community of interest with the other professional
groups which [the County] 	tries to place in one
8	organization18.
Thus, the Court placed as much, if not more, reliance on the absence of a
community of interest between attorneys in the public defenders office and the
other county professional employees, as it did on the "an" appropriate unit requirement.
In any event, in respect to "an" and "most", the Meyers-Milias-Brown Act differs
materially from the Educational Employment Relations Act. 	The Meyers-Milias-Brown
Act contains no unit criteria defining "an appropriate unit". 	It does provide:
A public agency may adopt reasonable rules and
regulations after consultation in good faith with
representatives of an employee organization or
organizations for the administration of employer-
employee relations under this chapter.19
With only the use of the word "reasonable" to serve as a standard for unit determination
cases, 	the Court in Alameda County Assistant Public Defenders Association relied
on National Labor Relations Act precedents in determining that the "an"
standard in Government Code Section 3507(d) 	should be literally applied.20 We must
therefore compare EERB unit criteria with National Labor Relations Act unit criteria.
18
33 C A . 3d at 831-832.
19
Gov. Code Sec. 3507.
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The Court relied principally upon the NLRB's decision in Douglas Aircraft Co.,
157 NLRB 69, 61 LRRM 1434 (1966) for its finding that the County public defenders
lacked a community of interest with employees in the overall unit. 	In determining
that the National Labor Relations Act "requires only that a unit 	'be appropriate'",
and that the NLRB "need not determine the ultimate unit or the most appropriate unit",
the Court cited Morand Bros. Beverage Co., 91 NLRB 58, 26 LRRM 1501 (1950) enforced
(7th Cir. 1951), 190 F. 2d 576; Federal Electric Corp., 157 NLRB 89, 61 LRRM 1500
(1966); F.W. Woolworth Co., 144 NLRB 35, 54 LRRM 1043 (1963). 	See 33 C A . 3d at
830-831.

National Labor Relations Act unit criteria contained in the NLRA differ
from the unit criteria contained in the Educational Employment Relations Act.
NLRA unit criteria are set out in NLRA Section 9(b), which provides:
The Board shall decide in each case whether, in order
to assure to employees the fullest freedom in exercising
the rights guaranteed by this subchapter, 	the unit
appropriate for the purposes of collective bargaining
shall be the employer unit, craft unit, plant unit, or
subdivision thereof: 	Provided, That the Board shall not
(1) decide that any unit is appropriate for such purposes
if such unit includes both professional employees and
employees who are not professional employees unless a
majority of such professional employees vote for inclusion
in such unit; or (2) decide that any craft unit is inappro-
priate for such purposes on the ground that a different unit
has been established by a prior Board determination, unless
a majority of the employees in the proposed craft unit vote
against separate representation or (3) 	decide that any unit is
appropriate for such purposes if it includes, together with
other employees, any individual employed as a guard to enforce
against employees and other persons rules to protect property
of the employer or to protect the safety of persons on the
employer's premises; but no labor organization shall be certified
as the representative of employees in a bargaining unit of
guards if such organization admits to membership, employees other
than guards.
Examining Section 9(b) of the NLRA, it is evident that the general affirmative
criteria comparable to the general affirmative criteria contained in Government Code
Section 3545(a) are the first few lines before the proviso. 	The proviso contains
several specific negative commands, just as Government Code Section 3545(b) contains
several specific negative commands, but they have no bearing on the questions involved
here.
Examining the portion of National Labor Relations Act Section 9(b) 	that is
pertinent in this case and comparing that aspect of Section 9(b) with the relevant
criteria in the EERA, 	the differences between the two criteria become readily apparent.
The NLRA statutory criteria do not include an efficiency of operations test,
a community of interest test or an 	established practices 	test. 	It is
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true 	that 	in respect 	to community of 	interest and established practices 	(to 	the
extent that this means past bargaining history), 	the NLRB, 	through its decisions,
has 	fashioned 	the community of 	interest 	standard already noted in this decision as
having been relied upon by this Board. 21 The NLRB's Kalamazoo decision also
demonstrates 	that while the National Labor Relations Act 	is 	silent on the criterion
o f 	past b argaining 	istory, 	t 	e NLRB consi ers 	it a unit criterion.	. 	. 	h ' 	h 	' d 	. 	. 	. 	. 	22 	However, 	in
respect 	to the EERA criterion of efficiency of operations, 	not only is 	the National
Labor Relations Act 	silent, 	but 	the NLRB does not generally apply that criterion
in unit cases . 	In contrast, 	the California Legislature has commanded that the EERB
use 	that criterion in all unit cases. 	The silence of 	Congress on past bargaining
history and community of 	interest gives 	the NLRB more 	leeway to 	fashion and apply
unit criteria than the California Legislature, 	with mandated unit criteria, 	has given
the EERB.
While it has no direct bearing on the 	"an" versus 	"most" 	issue, 	we also note that
Alameda County Assistant 	Public Defenders Association is a 	case 	in which a 	party sought
to represent the public defenders in a 	separate unit; 	here, 	no party seeks 	to represent .
food 	services employees as a 	separate unit consisting of 	food services 	employees alone.
Therefore, 	this Board has even more leeway to decide here that 	food services
employees 	should become part of 	the unit proposed by AFSCME.
...
For all of 	the reasons noted, 	we 	feel bound to weigh and balance 	the EERA unit
criteria mandated by the Legislature 	in the manner described 	in this decision rather
than be limited by a 	rigid 	"an" 	or 	"most" 	appropriate unit standard .
Reginald Alleyne, 	ChairmanRaymondJ . Gonzales,MemberJerilouH.Cossack,Member, concurring:
I 	agree with the result reached by the majority opinion in this case, 	but 	I
disagree with the 	distinctions 	it makes 	regarding our decisions 	in Sweetwater
21 see Kalamazoo Paper Box Corp., 	136 NLRB 134, 	137 	( 1962).
2 223nJb>id .
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Union High Schoo l 	District
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and Foothill - DeAnza Community College District.
2
The
majority claims 	that 	this case 	is more 	like Sweetwater than Foothill - DeAnza.
Upon re - examination of both, 	I 	believe 	that 	the outcome in Foothill - DeAnza is
in fact 	inconsistent with our earlier ruling 	in Sweetwater.
The distinctions drawn by the majority in the 	instant case are without
differences. 	Against AFSCME's argument 	that Footh ill- DeAnza should serve as
precedent 	to exclude 	food 	services employees 	from the operations - support unit, 	the
majority justifies the 	inclusion of these employees by noting that 	the District here has
requested it. 	The majority notes 	f urther that 	in Foothi ll- DeAnza, 	no one requested
representation of 	the 	food 	services employees alone. 	Because of this distinction,
my colleagues see reason not 	to apply F oo th 1 ll-b e Ari za to the f acts o f 	this case. 	I
contend that 	their approach is disingenuous.
This 	case ultimately involves a 	clarification of 	the 	result 	reached by us 	in
F' oo th 1!! - DeAn za. 	In Swee t wat er, 	this Board determined that three units are pre -
sumptively appropriate 	for 	classified employees . 	There SEIU had asked for a
custodial - gardening unit, 	and CSEA, 	for a wall - to - wall unit. 	No one asked to
represent 	food 	services 	employees alone. 	The appropriate unit was determined to be
an operations - support unit which included food 	services 	employees on community o f
interest grounds. 	In Foot h l ll - DeJU~ a, 	SEIU asked for a 	skilled trades and crafts
unit while the district and CSEA wanted a wall - to - wall unit. 	As 	in Swee t wat er, 	no
one 	in Fo ot hlll-DeAr i za asked to represent 	the cafeteria employees alone. 	However,
in contrast 	to Swee t wa ter, 	we held in P' oo t hill - DeAnza 	that the 	skilled cra f ts and
maintenance unit was appropriate without 	the 	food 	services employees. 	They were
instead placed 	in a 	residual unit with all 	remaining classi f ied employees on the
rationale 	that no party had asked to represent 	just them . 	Simply put, 	we misapplied
the presumption established in S ncc t wa t cr , 	and the 	result reached in Poothill BcAnza
was wrong. 	The majority here compounds 	the error by attempting to 	find distinctions
where none exist. 	This can only serve to f urther confuse the parties before us .
Jerilou H. 	Cossack, 	Member
/
1 EERB Decision No. 	4, 	November 23, 	1976 ,
2 EERB Decision No . 	10, 	March 1, 	1977.
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EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the natter of:
ANTIOCH UNIFIED SCHOOL DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, Antioch Chapter No. 85,
Employee Organization,
and
UNITED PUBLIC EMPLOYEES, Local 2575,
AFSCME,
Employee Organization.
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Case Nos. SF-R-146
SF-R-290
PROPOSED DECISION
(5/2/77)
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Appearances: 	Paterson & Taggart, by J. Michael Taggart, for the
Antioch Unified School District.
William D. Dobson for California School Employees Association,
Antioch Chapter No. 85.
Reich, Adell & Crost, by Hirsch Adell, for United Public Employees,
Local 2575, AFSCME.
Before Barbara Stuart, Hearing Officer.
PROCEDURAL HISTORY, BACKGROUND AND JURISDICTION
On April 1, 1976, California School Employees Association, Antioch
Chapter No. 85 (hereinafter "CSEA") filed with the Antioch Unified
School District (hereinafter "District") a request for recognition as
the exclusive representative of a unit of all classified employees1
1CSEA's unit included but was not limited to the following groupings:
food service, secretarial/clerical, operations and maintenance (inclu-
ding custodial, maintenance, and grounds) : instructional aides (para-
orofessionals) and transportation.
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excluding noon duty supervisors, and management, 	supervisory and
confidential employees.
On April 21, 1976, United Public Employees, Local 2575, AFSCME
(hereinafter "AFSCME") 	filed with the District a request for recognition
as the exclusive representative of a unit consisting of the following
classifications: 	custodial leadman, custodians, custodians 	S.S.B.,
head custodians I, II, and III, matrons, head groundsman, groundsman,
gardener, general maintenance man, maintenance craftsman, maintenance
helper, warehouseman/driver, bus drivers, storekeepers, and equipment
mechanic.
On May 17, 1976, the District filed with EERB its Employer Decision
in which it questioned the appropriateness of the unit requested by
AFSCME. 	A unit determination hearing was conducted by an Educational
Employment Relations Board hearing officer on September 13, 1976.
The Antioch Unified School District of Contra Costa has an average
daily attendance of approximately 9,029 in 8 elementary schools, 	two
junior high schools, one high school and one adult school.2 The District
employs approximately 300 classified employees under a merit system. 3
The District is an employer within the meaning of Section 3540.1 (k)
of the Act. 	At the hearing, the parties stipulated that CSEA and AFSCME
are employee organizations within the meaning of Section 3540.1 (d) of the
Act.
2Official notice is taken of these facts from the "California Public
School Directory," Cal. State Dept. of Education (1976) at 67.
3
Education Code Sections 13701 et seq., recodified as Sections 45240
et seq, effective 4/30/77.
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At the hearing, the parties also stipulated that there are no
issues regarding management, supervisory or confidential employees.
AFSCME consistently has maintained that the unit for which it
petitioned (termed "skilled trades and maintenance" in its post-hearing
brief) is appropriate for bargaining. 	Through the hearing, CSEA and
the District maintained that the "wall-to-wall" unit of classified
employees requested by CSEA was appropriate. 	In its post-hearing brief,
however, the District takes the position, pursuant to the Board's decisions
in Sweetwater Union High School District4 and Fremont Unified School
District,5 that two units are appropriate: 	an operations-support services
unit (consisting of the unit proposed by AFSCME with the addition of food
services personnel and the security aide), and an office-technical unit
consisting of the remaining classifications (including instructional aides).
CSEA waived filing a post-hearing brief.
ISSUE
What classified employee unit or Units are appropriate in this case
for negotiations under the Act?
DISCUSSION
A. 	The Appropriate Classified Units
In its post-hearing brief, AFSCME primarily relies on the Board's
Foothill-DeAnza Community College District decision6 in support of its
4EERB 	Decision No. 4, 11/23/76.
5 EERB Decision No. 6, 12/16/76.
6 EERB Decision No. 10, 3/1/77. -3-

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requested "skilled trades and maintenance" unit. 	In Foothill-DeAnza, the
Board found appropriate a "skilled crafts and maintenance" unit similar to
the "skilled trades and maintenance" unit requested by AFSCME in the
present case. 	Essentially, both these units are similar to the "operations-
support services" unit found to be "presumptively appropriate" in the
Sweetwater and Fremont decisions,7 except for the exclusion of food
services workers
8
from these units. 	In Foothill-DeAnza, the Board held
that a party may show that a unit which deviates from a presumptively
appropriate unit is also appropriate. 	In that case the employee organization
demonstrated a separate community of interest among employees in the
"skilled crafts and maintenance" unit and no party presented evidence to
show that the smaller unit was inappropriate without the inclusion of food
services workers. 	The Board also found the residual unit which included food
services workers appropriate in the absence of any contrary evidence.
9
The factors favoring a separate community of interest among the
employees of the proposed unit are as follows:
a. The employees in AFSCME's proposed unit are functionally related
in that they work primarily with their hands and with tools in various
forms of manual labor.
'Supra, footnotes 4 and 5.
8In this case, the food services classifications in issue are: 	cook (11);
food services assistant I and II (20); cook manager I, II, and III (9);
and cashier (8).
9See footnotes 4 and 5, supra.
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b. 	Most of the classifications in AFSCME's proposed unit require
an eighth grade education or its equivalent. 10 In contrast, office,
clerical and technical classifications generally require a twelfth grade
education •
c. 	All but one of the classifications in AFSCME's proposed unit
are supervised by the director of maintenance and operations who in turn
reports to the business manager. 	The warehouseman/driver and storekeeper
are supervised by the director of purchasing who also reports to the
business manager-
d. 	There have been no transfers or promotions between the classifications
in AFSCME's proposed unit and office, clerical and technical classifications.
However, because pay scales and required skills are similar, lateral
transfers have taken place and are more likely to occur among the
classifications in AFSCME's proposed unit than between that proposed unit
and office, 	clerical and 	technical classifications.
e. 	In terms of work location, maintenance personnel, bus drivers,
equipment mechanics, 	the warehouseman/driver and storekeeper work out of
the maintenance yard, garage or warehouse, all of which share the same
geographic location. 	Custodial and presumably grounds personnel work at
the District's various building sites.
With respect to past practices, during the past 6 or 7 years in
which AFSCME has been active in the District, it has represented only
employees in the classifications of its proposed unit. 	About half of
the approximately 90 employees in the proposed unit were AFSCME members
drivers are required to have a tenth grade education and the
storekeeper is required to have a twelfth grade education but may
substitute experience on a year-for-year basis.
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11
f
at the time of the hearing.11
In the present case, however, unlike Foothill-DeAnza, AFSCME has
not demonstrated that its proposed "skilled trades & maintenance" unit
has a separate and distinct12 community of interest substantially dis-
tinguishing its members from food 	services workers so as to justify the
exclusion of the latter from the proposed unit. 	Unlike Foothill-DeAnza,
there is ample evidence in this record showing that food 	services workers
share a community of interest with the classifications in AFSCME's
proposed unit and conversely, are substantially distinguishable from
the remaining classifications in the residual unit.
Food service workers are functionally related to the classifica-
tions in AFSCME's proposed unit in that they provide "support services"
for students consisting of preparation, serving and clean-up of meals,13
as well as cleaning their kitchens and equipment.
Like most of the classifications in AFSCME's proposed unit, most
food service classifications require an eighth grade education or its
equivalent. 	The positions of crook manager I, II & III require a twelfth
grade education but experience may be substituted on a year-for-year
basis in the same manner as for the storekeeper in AFSCME's proposed
unit. 	By contrast, the remaining classifications in the residual unit
generally require a twelfth grade education or its equivalent, with no
experience substitution allowed.
1 1 A F S C M E 	never has entered into a memorandum of understanding with the
District under the Winton Act (repealed Education Code Secs. 13080 et
seq.) on behalf of any District employees, while CSEA represented and
reached agreement with the District during the past school year on
behalf of all classified employees.
12See Sweetwater, supra, at 8-9; Fremont, supra, at 7; San Diego Unified
School District, EERB Decision No. 8, 2/18/77, at 6-7.
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13
Sweetwater, supra, at 9; Fremont, supra, at 5.

Food services workers are supervised by the director of food
services who is parallel in authority to the director of maintenance and
operations and director of purchasing, all of whom report to the business
manager.14 Most office, clerical and technical employees have different
lines of supervision.
Food services workers work in cafeterias at each of the District's
9 regular school sites. 	They have frequent contact with custodial
personnel who assist food services workers with strenuous tasks such as
lifting heavy bags of sugar or flour. 	Custodians also are assigned to
the cafeterias during the lunch hours:
...[t]o stand by, to assist in anyway they can,
and in serving of the meals that the kids eat,
you know, spills and anything they get
called upon to do, 	...[l]ike setting up
b e n c h e s . . . . 15 If a custodian is not present in the cafeteria, a food services wor
will contact a custodian to take care of mopping 	and cleaning up spills
in the cafeteria. 	Food services workers also have frequent contact with
maintenance personnel who daily perform repair work on cafeteria
equipment at one of the District's locations.
Accordingly, upon review of the entire record in this matter, it is
the hearing officer's opinion that AFSCME has not sustained its burden
of proving that its proposed "skilled trades and maintenance" unit has a
separate and distinct community of interest justifying exclusion of food
14----Sweetwater, supra, at 10; Fremont, supra, at 5-6.
15Transcript, at 63:17-19, 21 — testimony of the custodial foreman.
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17
services workers therefrom. 	Similarly, the evidence does not support
addition of food services workers to a residual unit consisting largely
of office, clerical and technical personnel. 	Therefore, it is the hearing
officer's decision that an "operations-support services" unit is
presumptively appropriate in this case, to include all the classifications
in AFSCME's proposed "skilled trades and maintenance" unit16 plus all
food services worker classifications.17
Since no party presented evidence that it would be inappropriate,
the remaining classified employees in the District, except for the
positions of garage utilityman, head groundsman II, library assistant I
and security aide,18 and those designated management, supervisory, or
confidential by the District, are found to comprise an appropriate second
negotiating unit.19 Instructional aides are included in this second unit
because no party presented any evidence that it would be inappropriate
to do so. 	Moreover, the District's job description for instructional
aides indicates that a twelfth grade education or equivalent is required,
the same as other classifications in the unit. 	The job description also
indicates some functional relationship between instructional aides and
the other classifications in the unit in that instructional aides (with
the exception of those in the bi-lingual program) are required to perform
clerical work, do arithmetic computations and type at a speed of 40 words
per minute.
16 See p. 2, ante.
17 Supra, footnote 8
18See p. 9, infra.
19Foothill-DeAnza, supra, at 4.
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The positions of garage utilityman, head groundsman II, library
assistant I 	and security aide are not included in either unit because
from the District's classified employee list by job description, 	it
appears that these positions are unoccupied. 	There was no evidence as to
whether these positions were to have been filled or will be filled in the
future, or as to the required duties and lines of supervision (except for
the job descriptions). 	Thus, there is insufficient evidence to decide
their proper unit placement at this time. 	If one or more of these
positions is subsequently filled, 	their proper unit placement may be
decided by stipulation of the parties or by a petition for unit clarifica-
tion under EERB Regulation 33260.
B. 	Other Criteria
In addition to consideration of the criterion of community of interest
in deciding the appropriateness of negotiating units, Government Code
Section 3545 (a) also requires consideration of:
... established practices including, among
other things, the extent to which...employees
belong to the same employee organization, and
the effect of the size of the unit on the
efficient operation of the school district.
Consideration of these two criteria does not affect the outcome in this
matter. 	With respect to past representation history, it already has been
indicated that about half of AFSCME's proposed unit are AFSCME members,20
but that last year CSEA entered into a memorandum of understanding with
the District on behalf of all classified employees. 21 In addition, CSEA
has represented all classifications, 	including those in AFSCME's proposed
20The record indicates that there may be some dual CSEA-AFSCME memberships,
and also that CSEA has approximately the same number of members as AFSCME
in the latter's proposed unit.
21
See p. 5, ante.
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unit, in grievance proceedings. 	Thus, the evidence on past representation
history is inconclusive.
With respect to efficiency of operations, the only evidence is
testimony from the District's Business Manager to the effect that it
would be more efficient to negotiate with only one, rather than two units,
although the business manager also testified that the District already
has been negotiating with both CSEA and AFSCME in past years. 	Thus, the
testimony with respect to efficient operation is insufficient to change
the outcome of this decision.
PROPOSED DECISION
It is the proposed decision that the following classified employee
units are appropriate for meeting and negotiating, provided an employee
organization becomes the exclusive representative:
Unit A - An operations-support services unit, including
custodial leadman, custodians, custodian S.S.B.,
head custodians I, II, and III, matrons, head
groundsman, groundsman, gardener, general
maintenance man, maintenance craftsman,
maintenance helper, warehouseman/driver, bus
drivers, storekeeper, equipment mechanic,
cook, food services assistant I and II, cook
manager I, II and III, and cashier, excluding
all other employees and management, supervisory
and confidential employees.
Unit B - All classified employees not included in Unit A,
excluding all employees in Unit A, noon-duty
supervisors, garage utilityman, head groundsman II,
library assistant I, security aide, and management,
supervisory and confidential employees.
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The parties have seven calendar days 	from receipt of this proposed
decision in which to file exceptions 	in accordance with Section 33380 of
the Rules and Regulations. 	If no party files timely exceptions, 	this
proposed decision will become rhe final order of the Board on May 14,
1977, 	and a Notice of Decision will 	issue from the Board.
Within ten workdays after the employer posts the Notice of Decision,
the employee organizations 	shall demonstrate to the Regional Director
at 	least 30 percent support in the above units. 	The Regional Director
shall conduct an election at the end of the posting period, 	if: 	1) 	more
than one employee organization qualifies for the ballot, 	or 2) 	only one
employee organization qualifies 	for the ballot and the employer does not
grant voluntary recognition.
The date used to establish the number o f 	employees 	in the above units
shall be the date of 	this 	decision unless another date 	is deemed appropriate
by the Regiona l 	Director and noticed to the parties. 	In the event another
date 	is 	selected, 	the Regional Director may extend the time 	for emp l oyee
organizations 	to demonstrate at least 30 percent 	support 	in the units.
Dated: 	May 2, 	1977
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EDUCATIONAL EMPLOYMENT RELATIONS BOARD
By Gerald A. 	Becker, 	Board Agent
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