Beverly Hills Unified School District (PERB 0063E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

BEVERLY HILLS UNIFIED SCHOOL DISTRICT,
Employer,
and

CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
BEVERLY HILLS CHAPTER #328,

Case Nos. LA-R-196

LA-R-410
Employee Organization, PERB Decision No. 63
and August 8, 1978

SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 660, AFL-CIO,

Employee Organization.

tne Ne beeen tlie callin ali alien ellen cain nil allan calling “illinois scale “and

Appearances; Paul Grossman, Howard C. Hay and Eric H. Joss,
Attorneys (Paul, Hastings, Jonofsky and Walker) for Beverly
Hills Unified School District; Robert L. Blake and

Mary Ruth Gross, Attorneys for California School Employees
Association, Beverly Hills Chapter #328; Howard Z. Rosen,
Attorney (Geffner and Satzman) for Service Employees
International Union, Local 660, AFL-CIO.

Before Gonzales and Cossack Twohey, Members.1/.

DECISION
The attached hearing officer's proposed decision found an

operations-support services unit 2/ and a residual unit

1/Chairperson Gluck took no part in the decision of this
case.

2rhe parties agreed that instructional aides and noon
duty supervisors should be excluded from whatever unit or units
are found appropriate.

appropriate for the purpose of meeting and negotiating under
the Educational Employment Relations Act (hereafter EERA).3
California School Employees Association, Beverly Hills Chapter
#328 (hereafter CSEA) excepts to the proposed decision on the
basis that it improperly places food services employees in the
residual unit instead of the operations-support services
unit. 4/
FACTS
In terms of job function, the district's classified
employees in issue in this case are divided into three general
groups. The employees placed into the operations-support
services unit by the proposed decision perform job functions
which provide a proper physical environment for the students.
The clerical, accounting and other white collar employees
placed into the residual unit by the proposed decision work in
offices and do not perform physical labor. The food services
employees whose unit placement is in dispute prepare food in
the school kitchens, serve food to the students, and clean the
kitchens and cafeteria after food is served.
. Code sec. 3540 et seq.
4/ No party excepted to the proposed decision's inclusion
of CETA employees in the units. The Board has never ruled upon
the proper unit placement of classified CETA employees. Since
the inclusion of these employees is not inconsistent with the
EERA and established Board policies, the issue of their proper
unit placement is not addressed in this decision. See
Centinela Valley Union High School District (8/7/78) PERB
Decision No. 62 which enunciates a similar policy regarding
stipulations of parties.
2

The work locations of the three groups vary, with the
operations-support services employees working throughout the
school facilities, the residual white collar employees working
in offices, and the food services workers located in the
cafeterias.
Nevertheless, there is substantial contact, interchange and
interaction among district employees, most of which occurs
between the operations-support services and food services
employees. The custodians help the food services employees by
operating the cash register during the lunch hour. In
addition, they assist the food services employees with heavy
work, clean up the cafeterias when the lunch hour ends, and
help deliver food to the kitchens. Either a custodian or the
driver takes cafeteria monies to the bank for food services.
Maintenance employees, such as the head mechanic, electrician,
and air conditioning and refrigeration repair person spend
much time working on cafeteria equipment. In contrast, the
only evidence regarding the white collar employees is that the
clerical workers on occasion will operate the cafeteria cash
register.
In this case, community of interest factors such as work
hours, work year, educational requirements, supervision,
compensation and benefits do not align the food services
employees more with either the operations-support services or
white collar employees.
3

DISCUSSION
In Sweetwater Union High School District the Board
established three appropriate units: an instructional aides
unit, an office-technical and business services unit, and an
operations-support services unit. The operations-support
services unit consisted of employees in the job areas of
transportation, custodial, gardening, maintenance, food
services and warehouse. Similar operations-support services
units were established in Fremont Unified School District,6
San Diego Unified School District,
=--~11====~10~===
7 Norwalk-La Mirada Unified
8 9
School District, Sacramento City Unified School District,
Shasta Union High School District and Greenfield Union
School District.
5 (ll/23/76) EERB Decision No. 4.
6 (12/16/76) EERB Decision No. 6.
7 (2/18/77) EERB Decision No. 8.
8 (9/16/77) EERB Decision No. 29.
9 (9/20/77) EERB Decision No. 30.
10(10/25/77) EERB Decision No. 34.
11(10/25/77) EERB Decision No. 35.
4

In the present case the evidence indicates that the food
services employees should not be included in the residual white
collar unit, and based on the evidence the Board finds that the
operations-support services unit created by the proposed
decision is inappropriate because it does not include food
services employees.
The facts indicate that the job functions of the food
services workers are more akin to those of the employees placed
in the operations-support services unit than those of the other
employees placed in the residual unit. Also, there is
substantial contact, interchange and interaction among the food
services employees and the operations-support services
employees while there is comparatively little with the other
residual unit employees.
Therefore, following Sweetwater and the other cases cited
above, the Board finds that the proposed operations-support
services unit with the addition of the food services employees
is an appropriate unit, and the proposed residual unit with the
exclusion of the food services employees is an appropriate unit.
ORDER
Based upon the foregoing Decision and the entire record in
this case, the Public Employment Relations Board ORDERS that:
1. The following units are appropriate for the purposes
5

of meeting and negotiating, provided that an employee
organization becomes the exclusive representative:
Operations-Support Services Unit consisting
of employees in the following job
classifications: carpenter (including head
carpenter); custodian (including athletic
custodian); deliveryman; electrician
(including head electrician); gardener
(including head gardener); journeyman
helper; locksmith and inspector;
mechanic-head; painter (including head
painter); plumber (including head plumber);
security guard; warehouseman; and food
services employees; excluding all other
employees and excluding those positions
agreed by the parties to be management,
supervisory or confidential.
Office-Technical and Business Services Unit
consisting of all employees not included in
the operations-support services unit;
excluding instructional aides and noon duty
supervisors and excluding those positions
agreed by the parties to be management,
supervisory or confidential.
2. CETA employees shall be included in either the
operations-support services unit or the office-technical and
business services unit according to their job classifications
or work function.
3. Within 10 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 in each unit 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.
6

The 	date 	used 	to establish 	the 	number 	of 	employees 	in 	the
above 	units 	shall 	be 	the 	date 	of 	this 	Decision 	unless 	another
date 	is 	deemed 	appropriate 	by 	the 	regional 	director 	and 	noticed
to 	the 	parties. 	In 	the 	event 	another 	date 	is 	selected, 	the
regional 	director may 	extend 	the 	time 	for 	employee
organizations 	to demonstrate 	at 	least 	30 	percent 	support 	in 	the
units.
By : 	~aymond J.Gonzales,Member 	Jerilou 	Cossack 	Towhey, 	Member
/
7

EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
BEVERLY HILLS UNIFIED SCHOOL,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, BEVERLY HILLS
CHAPTER NO. 328,
Employee Organization
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 660, AFL-CIO,
Employee Organization
Case No. LA-R-196
LA-R-410
Appearances: Paul Grossman and Howard Hay, Attorneys (Paul,
Hastings & Janofsky) for Beverly Hills Unified School District; Mary
Ruth Gross, Attorney for California School Employees Association;
Howard Z. Rosen, Attorney (Geffner & Satzman) for Service Employees
International Union, Local 660, AFL-CIO.
)
)
)
)
)
)
)
, )
)
)
. )
)
Proposed Decision by David Schlossberg, Hearing Officer.
PROCEDURAL HISTORY
The Beverly Hills Unified School District (District) is comprised
of one high school, one continuation school and four elementary schools
Total student enrollment numbers approximately 5,800. There are
approximately 200 classified employees in the District, including about
13 instructional aides.
On April 1, 1976, the California School Employees Association
Beverly Hills Chapter No. 328 (CSEA) filed a request for recognition
with the District as the exclusive representative for a unit
consisting of all classified employees in the following major groupings
of jobs: Food Services, Clerical and Secretarial, Operations and
1
)
)
)

Maintenance to include custodial/maintenance/gardeners; and excluding
instructional aides, noon duty supervisors and those positions which
could lawfully be declared management, supervisory or confidential.
On April 5, 1976, the District posted the notice of this request
for recognition.
On April 6, 1976, Service Employees International Union, Local 660,
AFL-CIO (SEIU) filed a request for recognition with the District as the
exclusive representative for a unit designated as a School Operations
Unit, to include the following positions: custodian, warehouseman
custodian-deliveryman, locker room attendant-custodian, gardener, head
custodian, head gardener, security guard and stock clerk.
On April 20, 1976, SEIU filed an intervention to CSEA's request
for recognition, seeking a unit designated as a Building Trades
Unit, to include: head journeyman carpenter, head journeyman
electrician, head journeyman mechanic, head journeyman painter, head
journeyman plumber, journeyman carpenter, journeyman helper, journeyman
mechanical/air conditioning, journeyman electrician, journeyman painter
and journeyman plumber.
On May 10, 1976, the District advised the Educational Employment
Relations Board (EERB or Board) that it doubted the appropriateness of
both units proposed by SEIU; that it agreed with CSEA's proposed unit;
and that it requested a hearing to determine the appropriateness of the
units. On May 28, 1976, SEIU also requested that EERB conduct a unit
determination hearing.
A hearing was held before Board Agent Frances A. Kreiling on
September 13, 1976, in Beverly Hills.
2

Positions of the parties at the hearing
All parties agreed that instructional aides and noon duty
supervisors should be excluded from whatever unit or units were found
to be appropriate. In addition, there was no dispute regarding who
should be excluded as management, supervisory or confidential employees.1
The District and CSEA maintained their original positions in
favor of a. single unit for classified employees other than instructional
aides, except the District wanted to exclude Comprehensive Employment
Training Act (CETA) employees from the negotiating unit, while CSEA
wanted to include them.
At the hearing, SEIU proposed three separate units: a "white
collar" unit2, a "blue collar" unit and a "food services" unit. The
District objected to the units proposed by SEIU at the hearing on the
basis that SEIU's showing of support consisted of employees who had
1Noncertificated positions which the parties have stipulated are
either management or supervisory are: director of food services,
accountant/office manager and supervisor of maintenance and
operations. Eight individuals which the parties stipulated by name as being
confidential employees (their positions were not stated): Julia Maggs,
Geraldine Reynolds, Bernice Skolnick, Hanna Slutsky, Virginia Carter,
Mary Ellen Ellis, Gerry Ellis and Donald Warner.
2District's Exhibit 2 lists the job classifications of all the
classified employees in the District. SEIU would include the following
positions in its "white collar" unit: clerical, accounting and
secretarial staff (including clerk, library assistant, bookkeeper,
account clerk, receptionist and purchasing secretary); data processing
and media technician; investigator; and musical accompanist. Included
in SEIU's proposed "blue collar" unit are: carpenter (including head
carpenter); custodian (including athletic custodian); deliveryman;
electrician (including head electrician); gardener (including head
gardener); journeyman helper; locksmith and inspector; mechanic-head;
painter (including head painter); plumber (including head plumber);
security guard; and warehouseman. The District represents that these
groups of employees, along with the food services and CETA employees,
constitute all of the classified employees whose unit placement is in
dispute.
3

requested representation from SEIU in substantially different units
(i.e., either in the School Operations Unit or the Building Trades Unit
described in the request for recognition and intervention,
respectively). This objection is discussed infra, at page 6.
SEIU's position on CETA employees was that their unit placement
should be according to their work function within one of the three
units it condended are appropriate.
In its posthearing brief, the District moved that the record be
reopened to allow submission of affidavits from the superintendent
and the assistant superintendent for business services pertaining to
the educational requirements for classified positions and the designa-
tion of appropriate units for the purpose of meeting and conferring
under the Winton Act. The ruling on this motion is discussed infra.
ISSUES
The issues are:
(1) What is or are the appropriate units for purposes of
meeting and negotiating?
(2) Should CETA employees be included in the unit(s)?
DISCUSSION
The Motion to Reopen the Record
Included as part of the District's posthearing brief were affi-
davits signed by the superintendent and the assistant superintendent,
business services attesting to the facts that (1) the District did not
have any minimum formal educational requirements as a prerequisite to
employment in any classified job classification and (2) the District
3 See former Ed.Code Secs. 13080-13090, repealed effective
July 1, 1976.
4

had not established rules of unit determination with which employee
organizations had to comply in order to be recognized under the Winton
Act. The basis of the motion was the Board's holding in certain deci-
sions rendered subsequent to the hearing in this matter which relied on
these factors. SEIU objected to the Motion to Reopen the Record.
No statutory or case law was cited by either party regarding the
propriety of reopening the record for additional evidence in an
administrative hearing prior to the hearing officer's decision.
However, reference can be made to Malibu Lake Mountain Club, Ltd. vs.
Robertson, 219 Cal.App. 2d 181, 185 (1963), which pertains to the
reopening of the record in a trial court:
The granting or denial of a motion to reopen lies in
the discretion of the trial court and will not be
reversed on appeal absent a clear showing of abuse of
discretion...No showing was made that the testimony
sought to be introduced was not known to plaintiff or
was unavailable during the trial. Such a showing is a
prerequisite to the granting of such a motion.
In the present case, there has been no showing that the evidence which
the District seeks to introduce was unavailable at the time of the hearing.
To allow the record to be reopened- several months after the hearing is
held4 in order to receive evidence which was not introduced because the
parties did not anticipate the nature of a subsequent Board decision
would delay the processing of decisions5 and create uncertainty
among parties and hearing officers as to whether a case was finally
submitted. Accordingly, the Motion to Reopen the Record is denied.
4The hearing was held on September 13, 1976; briefs were filed on
approximately March 21, 19 77.
5
If the affidavits were received into evidence, procedural due process
would require that SEIU be given an opportunity to cross-examine the
superintendent and the assistant superintendent, business services on the
matters discussed in the affidavits.
5

SEIU's right to seek the "blue collar" unit proposed at the hearing
The District's objection to the amended "blue collar" unit proposed
by SEIU is that this unit is a significantly different unit than those
on which the showing of support was based, as the employees who signed
SEIU's representation requests did so on the understanding that they
would be represented in a School Operations Unit or a Building Trades
Unit rather than together as a "blue collar" unit.
Nevertheless, it is found that the showing of support which formed
the basis for the request for recognition for the School Operations Unit
and the intervention for the Building Trades Unit can be used to maintain
a position for a single unit of the same employees covered by the
initially proposed units. In St. Louis Independent Packing Company, 169
NLRB 1106, 67 LRRM 1338 (1968), one union sought to represent a unit of
production and maintenance employees excluding machinists, while another
union sought to represent the machinists. These petitions were dismissed
by the regional director on the basis that the units sought were not
appropriate units. However, the National Labor Relations Board (NLRB)
permitted the filing of a first amended petition wherein both unions
sought certification as joint representatives of all the production and
maintenance employees in a single unit, and, further, held that the
authorization cards for each of the initially proposed units could be
pooled to determine the sufficiency of the support for the amended
proposed unit. The Board stated:
We are persuaded that when 30 percent of the employees
in a bargaining unit have indicated a desire to be
represented by one or the other of two unions, and the
two unions then offer themselves as joint representatives
of the employees, the petitioning unions have demon-
strated enough employee interest in their attaining
representative status to warrant holding an election.
6

Similarly, it follows that when one employee organization attains 30
percent support of the employees in each of two units, and then the
organization offers to represent these employees in a single unit,
sufficiency of support can be based on that which was filed with the
units initially sought.
The only position included in SEIU's proposed "blue collar" unit
which was not included in either the request for recognition for the
School Operations Unit or the intervention for the Building Trades Unit
is locksmith and inspector (there is only one such employee in the
District). There are 826 persons employed in the job classifications
7	included in the proposed "blue collar" unit and 38 of these employees
signed SEIU's request for recognition or intervention. This is well
above the 30 percent showing of interest required for an intervention
(see discussion below). SEIU has standing to seek its proposed
"blue collar" unit.
SEIU's right to seek the "white collar" and food services units at the
hearing.
The first official concern which SEIU showed for any of the employees
who are not included in its proposed "blue collar" unit was at the
hearing, when it contended that the remaining employees should be placed
into two other units. There is no evidence that SEIU has the support of
any of the employees in its proposed "white collar" and food services
unit or even that SEIU desires to represent these employees.
As the following analysis will show, a serious question is raised
whether an employee organization can advocate a unit position at a hearing
without having at least 30 percent support, or demonstrating at least some
other kind of substantial interest, in the units it proposes.
6 7 The 82 and 38 figures do not include CETA employees. There
are nine CETA employees in various job classifications in the District,
and two of them signed SEIU's request for recognition or intervention.
'
7

The Educational Employment Relations Act (EERA) is somewhat
ambiguous as to whether an employee organization may contest the
appropriateness of a unit sought by another organization
without a 30 percent showing of support in the unit which it claims is
appropriate. Section 3544.1(b) of the EERA states as follows:
3544.1. The public school employer shall grant
a request for recognition filed pursuant to
Section 3544 unless:
* * *
(b) Another employee organization either
files with the public school employer a
challenge to the appropriateness of the unit or
submits a competing claim of representation
within 15 workdays of the posting of notice of
the written request ... If the claim is
evidenced by the support of at least 30 percent
of the members of an appropriate unit, ... the
,..board.,.shall conduct a representation
election .... (emphasis added)..
Since an election is to be held if a competing claim is evidenced
by 30 percent support, and since an election cannot be held if an
appropriate unit has not been determined, it would appear that the
words ''competing claim" refer only to the situation where another
employee organization desires to represent the same unit of employees
described in the request. It follows, then, that the words
"challenge to the appropriateness of the unit" includes the situation
where another employee organization desires to represent an
overlapping unit, that is, a unit which contains some, but not all,
of the employees in the unit described in the request for
recognition. Since the 30 percent support requirement does not
appear to apply to a challenge to the appropriateness of the unit, it
might be concluded that an employee organization seeking to represent
an overlapping unit is not required to have 30 percent support.
8Govt. Code Secs. 3540 et seq.
8

However, Section 3544.5 of the EERA describes those parties who
may initiate a petition with EERB to investigate and decide the
question of whether employees have selected or wish to select an
exclusive representative or to determine the appropriateness of a
unit. Among these parties are a public school employer alleging that
it doubts the appropriateness of the claimed unit and an employee
organization alleging that it has filed a competing claim of
representation pursuant to subdivision (b) of Section 3544.1. There
is no provision under Section 3544.5 for an employee organization to
petition EERB to determine the appropriateness of a unit solely on
the basis that the organization itself doubts the appropriateness of
the unit, unless the words "competing claim" as used in Sections
3544.1 (b) and 3544.5 refer to an organization seeking to represent an
overlapping unit. If the definition of "competing claim" is
expanded to include overlapping units, then the 30 percent support
requirement would also apply to overlapping units.
Thus, under the statute an organization seeking to represent an
overlapping unit either has no right to request the EERB to determine
the appropriateness of the unit, or it has this right only if it has 30
percent support in its own proposed unit.
While the EERA itself appears to be ambiguous as to the 30
percent requirement, the statute empowers the EERB to adopt rules and
regulations to carry out the provisions and effectuate the purposes
and policies of the EERA.
9
These regulations are not ambiguous.
9
See Gov. Code Sec. 3541.3(g).
9

Regulation 32070(a) defines "intervening organization" or
"intervenor" as an employee organization filing a competing claim of
representation or a challenge to the appropriateness of the unit
pursuant to Section 3544.1(b) of the EERA. Regulation 33070(b)
requires that 30 percent support in the unit claimed to be appropriate
shall be filed with the employer concurrent with the intervention.
Clearly, there is no regulation or administrative procedure which
permits an employee organization to intervene for an alternative unit
unless it submits 30 percent support for its own proposed unit.
Perhaps it might be argued that SEIU's proposed "blue collar,"
"white collar" and food services units constitute amendments to its
initial request for recognition and intervention under Regulation 33100.
10
However, if viewed in this manner, the amendments are untimely, as
they would have had to have been filed prior to the District's decision
11
not to grant recognition. In any event, it is difficult to perceive
SEIU's proposed "white collar" and food services unit as amendments to
its initial request for recognition and intervention, because they do
not add job descriptions to a proposed unit (i.e., the initially
proposed School Operations Unit and the Building Trades Unit).
10
The emergency regulations which were in effect prior to July 1,
1976 did not provide for amendments to a request for recognition or
intervention.
11
See Regulation 33100(b). The District's May 10, 1976 letter to
EERB effectively constituted the employer's decision in accordance with
Regulation 30022, which was then in effect.
10

The only basis, then, for SEIU's right to advocate a unit
position for employees it has not requested recognition of or inter-
vened for would accrue from its rights as a party to the unit deter-
mination hearing. Except for the basic due process rights provided
for in Regulation 32180, the regulations are silent with respect to
a party's substantive right of participation in the hearing. This
question is resolved by comparing the rights given to an organization
which seeks to join the hearing as a party. On this point Regulation
33340 states as follows:
33340. Application to Join Hearing As A Party.
The Board may allow an employee organization
which did not file a timely request for
recognition or intervention to join the hearing
as a party, provided:
(a) The employee organization files a written
application prior to the commencement of the
hearing stating facts showing that it has an
interest in the unit described in the request
for recognition or an intervention; and
(b) The application is accompanied by the proof
of the support of at least one employee in the
unit described by the request or intervention;
and
(c) The Board determines that the employee
organization has a substantial interest in the
case and will not unduly impede the proceeding.
This regulation is sometimes referred to as the "one card rule"
because an employee organization might become a party to the hearing with
as little support as one authorization card. However, subdivision (c)
also requires that the employee organization have a substantial interest
in the case. It seems incongruous that an employee organization can
become a party with only one card and yet also be required to have a
substantial interest. To interpret the one card rule as allowing an
employee organization to advocate a position regarding the unit(s) with
11

the support of only one authorization card in its proposed unit(s)
would be to ignore the "substantial interest" requirement of the
regulation.
The one card rule and the substantial interest requirement can be
harmonized when read together with Regulation 33480, which states
as follows:
33480. Eligibility to Appear on Ballot. Any
employee organization which was a party to the
representation may appear on the
election ballot provided that during the 10
workday posting period of the notice of Board
decision the regional director is satisfied that
the organization has evidenced at least 30
percent support in the unit found to be
appropriate by the Board. (emphasis added)
Thus, it is reasonable to interpret Regulation 33340 to mean:
1. An employee organization may become a party to the hearing
for the limited purpose of being allowed an opportunity to qualify
for the ballot by submitting proof of support of as little as one
employee in any of the units which are the subject of a request for
recognition or intervention.
•
2. An employee organization may become a party to the hearing
for other purposes only if it has a substantial interest in the case
and it will not unduly impede the proceeding.
Thus, it is concluded that SEIU did not have standing to main-
tain a different unit position unless it could have demonstrated a
substantial interest in the unit or units it advocated at the hearing.
It is not necessary for the hearing officer to determine what
kind of interest would amount to "substantial interest" in order for
SEIU to have standing to advocate the "white collar" and food services
units, because the fact is that SEIU demonstrated no interest in
either of these two units. Accordingly, SEIU did not have standing to
seek either a "white collar" or a food services unit at the hearing. 12
It might be argued that where the substantial interest is based
solely on the degree of support for the organization, "substantial
interest" should be interpreted to mean at least 30 percent support, as
this is what would be required for the organization to intervene in the
case during the initial posting period following the request for
recognition.
12
•

Hereinafter, the proposed "blue collar" unit will be referred to
as the "operations-support services" unit. Those classifications not
included in this operations-support services unit will be referred
to as the residual unit.
The presumptively appropriate units
Section 3545(a) of the EERA requires the determination of the
appropriateness of a negotiating unit to be based on three factors:
(1) the community of interest between and among the employees; (2) the
established practices of the employees, including the extent to which
they belong to the same employee organization; and (3) the effect of
the size of the unit on the efficient operation of the school district.
13
In a series of cases involving classified employees, the EERB,
relying on the community of interest criterion, has held that three
units are presumptively appropriate: (1) a unit of aides, except for
clerical aides; (2) an office-technical and business services unit;
and (3) an operations-support services unit (which includes food
13
See Sweetwater Union High School District, EERB Decision No. 4,
November 23, 19 76; Fremont Unified School District, EERB Decision No. 6,
December 16, 1976; San Diego Unified School District, EERB Decision No. 8,
February 8, 19 77; Foothill-DeAnza Community College District, EERB
Decision No. 10, March 1, 19 77; and Sacramento City Unified School District,
EERB Decision No. 30, September 20, 1977 (in this decision the Board
ruled that a fourth unit for security officers was also appropriate).
13

services employees). Since aides are not in dispute in this case, the
presumption as applied here would result in two units—a unit comprised
of operations-support services employees, including the food services
employees, and a unit consisting of the residual employees minus the
food services personnel.
The question presented is whether the presumption that these are
the two appropriate units has been rebutted in favor of either the
comprehensive unit sought by the District or by the operations-support
services unit proposed by SEIU.
The District's argument for a comprehensive unit
In its posthearing brief the District14 advances several arguments
relating to all three Section 3545(a) criteria to support its conten-
tion that a comprehensive unit is appropriate,
With respect to the community of interest criterion, the District
contends that there is a constant integration of work function among
employees in that all employees "pitch in" to do whatever job needs to
be done; that there are no restrictions regarding who can apply for
which positions; that there are no specific educational requirements
for any classified position; that there is a history of transfers
between classifications; that the positions are funded from the same
general fund (except for CETA employees); that there is a great deal of
uniformity among all employees in their hours of employment; that most
14
CSEA did not file a posthearing brief.
14

of the employees are invited to participate in various social
activities; that the principal is the common supervisor of all
employees who work at a particular school site; that all classified
employees are on the same salary schedule, with various pay grades
cutting across all different job classifications; that all classified
employees receive the same fringe benefits; and that they all have
the same grievance procedure.
The hearing officer makes the following observations about these
contentions:
1. For the most part, the interchange of job functions
among the employees occurs among those who would be in the pre-
sumptively appropriate operations-support services unit—that is,
gardeners assisting custodians, custodians assisting food services
workers, etc. However, at some of the elementary schools, some of
the secretarial staff will regularly serve food during the nutrition
breaks and work at the cash register during the lunch hour; at the
high school two or three clerical personnel work in the cafeteria
during the lunch hour. The District's driver or a custodian frequently
makes bank runs for the accounting department. At fund raising
activities such as carnivals the employees work together to make the
activity a success.
2. Almost all of the job transfers among classifications have
been between positions which would be included in the presumptively
appropriate operations-support services unit. Thus, while there have
been several job changes from custodial to maintenance, gardener to
custodial, food services to custodial, etc., there is only one current
employee who moved from an operations-support services position to an
office-technical and business services classification (this was a food
services worker who became a clerical employee).
15

3, Most of the employees in both the proposed operations-
support services and residual classifications have the same work hours
(7:30 a.m. to 4:00 p.m.). However, work hours also vary within the
same job classification (e.g., there are day and night custodians),
and some food services employees work only part-time. Those in the
proposed operations-support services unit are 12-month employees, as
are those clerical employees who work at the District office, the high
school and one of the elementary schools. Other clerical employees
are 10-month employees, and food services workers are nine-month
employees. Overall, the situation in Beverly Hills is not significantly
different from that noted by the Board in Sweetwater.
4. The school principal is the primary supervisor of almost
all of the employees who work at one school site. He or she routinely
gives instructions to custodians, gardeners and office workers,
completes written evaluations, and has the authority to effectively
recommend transfers or promotions of classified employees. However, in
Fremont, the Board noted that some of the custodians, gardeners,
grounds helpers and office-technical and business services employees
reported to the principal. Thus, it is not too significant that the
principal supervises those who work at his or her school site. Others
who are employed at the District office and the craftsmen (carpenters,
painters, electricians, mechanics, plumbers and the locksmith and
inspector) have different lines of supervision. The first common
supervisor of all classified employees in terms of the District's
organizational chart is the assistant superintendent, business
services. The fact that most of the employees work at one particular
16
'

school site has not been a significant factor in the Board's
precedential decisions.
5. Some of the other factors brought out by the District
do not carry much weight in establishing a community of interest
among all the employees. The social activities consist of the annual
Christmas breakfast for all classified employees and the two parties
held at the District office each year. The all-classified-employee
meetings occur one or two times a year to discuss such things as the
installation of the telephone system or health benefits.
With respect to the established practices of the employees, the
evidence establishes that CSEA has represented classified employees
in the District as a comprehensive unit since 1965 and that its
membership has consisted of a broad cross-section of job classification,
Since 1972, the CSEA Salary Committee and the District have met and
conferred under provisions of the Winton Act on the committee's
salary and fringe benefits proposals. Although most the CSEA members
who signed the proposals were employed in classifications which would
be included in the presumptively appropriate operations-support
services unit, there have been at least two secretaries and one library
clerk who signed these proposals. The salary proposals related to all
classified employees in the District.
The District contends that the employees desire to be represented
in a comprehensive unit. In support of this contention, the District
prepared a summary of the expression of employee interest, which was
admitted into evidence as District's Exhibit 2. The summary illus-
trates, by job classification, the number of persons employed as of
17

the time of the hearing who had authorized a CSEA dues deduction, the
number who had signed CSEA's request for recognition and the number
who had signed SEIU's request for recognition or intervention. The
impact of this summary, in light of other testimony, is discussed
infra, at page 20.
With respect to the efficiency of operations criterion, the
evidence contained in the record established that the District has
the fifth lowest number of administrators statewide in terms of the
ratio between administrators and teachers. The assistant superinten-
dent, business services' characterization is that the District is
operating "with a bare bones staff." He foresees the possible need
for an additional staff member if there is a fragmentation of employees
into more than one unit, as well as a general increase in workload and
expense if there is more than one unit.
Hearing officer's conclusion regarding the appropriateness of a
comprehensive unit.
Certainly, there is a stronger basis for finding a comprehensive
unit to be appropriate in this case than there was in the Board's
precedential decisions. All the classified employees are on the same
salary schedule, with pay grades cutting across various job classifi-
cations in both the proposed operations-support services and residual
units; the employees all receive the same fringe benefits; and they
have the same grievance procedure (sometimes the Board's precedential
decisions are silent on these points). There is a degree of interchange
18

of work function cutting across the presumptively appropriate units.
The hours of employment are more nearly the same than was the situation
in the precedential cases. Most significantly, the size of the District
in this case is much smaller than those school districts under consider-
ation by the Board. 15
Nevertheless, a review of the Board's precedential decisions
indicates that the primary factor relied on by the Board in establishing
the presumptively appropriate units is the job function of the employees.
Office technical and business services employees have a community of
interest among themselves primarily because they perform clerical and
recordkeeping work rather than physical labor. Operations-support
services employees have a community of interest among themselves primarily
because they all are involved in providing a proper physical environment
and support services for students. This is not to say that the other
factors are not important. But without further guidance from the Board,
the other factors cited by the District—some of which may or may not be
significantly different from the situation in the Board's precedential
decisions--taken together, are not sufficient to warrant a finding that
there is a community of interest among all the employees in dispute.
The District is small in size, but not so small that the size itself
suggests a single community of interest, as it would if there were only
one work site and a substantially lesser number of employees.
15In Sweetwater, there were 11 sites, 29,227 students and 672
classified employees; in Fremont, there were 48 sites, 32,759 students
and approximately 346 classified employees; in San Diego, there were
164 sites, 4,220 classified employees and an average daily attendance
of 125,815; in Foothill-DeAnza, there were approximately 576 classified
employees; and in Sacramento, there were 76 sites, approximately 42,642
students and 1,995 classified employees. In Beverly Hills, there are
six sites, 5,800 students and approximately 200 classified employees.
19

The evidence regarding representation practices predating the
EERA and current employee preference in representation is inconclusive.
With respect to the former, the Board has given little weight to
representation practices under the Winton Act because of the unspeci-
fied and possibly unilateral nature of the unit designation procedure
which existed in the school district (see Sweetwater, at p. 4 ) . The
evidence in the record is no different in this case.
Although the summary submitted as District's Exhibit 2 establishes
that 124 of the 187 employees signed CSEA's request for recognition,
it can hardly be concluded that these 124 persons have actually stated
a preference for representation by CSEA in a comprehensive unit rather
than in two units. The record is lacking regarding the
employees' preference for a single unit. The evidence regarding the
extent of actual membership in CSEA is difficult to evaluate. The
president of the CSEA chapter testified that there were approximately
120 members in CSEA, of whom perhaps 90 percent had authorized dues
deductions from their paychecks. In fact, 91 employees had authorized
dues deductions as of the time of the hearing (according to District's
Exhibit 2 ) , which is either 75.8 percent of 120 members or is 90 percent
of 101 members. If there are as few as 101 members in CSEA, this
would be only 54 percent of the total number of employees whose unit
placement is in dispute. The 54 percent figure would be lower if part
of CSEA's membership consisted of instructional aides (this point was
not clarified on the record).
Overall, the evidence produced on established representation
practices is not, in the hearing officer's opinion, a significant
factor in this case.
20

The inference to be drawn from the testimony regarding the low
ratio of administrators to teachers is that the increased administrative
time spent on negotiations will have a greater impact in this district
than it would in other school districts. The Board has recognized
that there are legitimate concerns which a public school employer might
have about excessive fragmentation of units. However, the Board has
consistently held that the three presumptively appropriate units strike
the proper balance between effective representation and the effect on
the school district's operations. Although the Board has indicated
that the number of employees in a school district may be so small that
a finding of anything other than a comprehensive unit would itself
adversely affect the efficient operations of the district, the number
of employees in the presumptively appropriate units in this case, or
even in the operations-support services unit proposed by SEIU, is not
so small as to be a consideration.16
The hearing officer concludes that the facts pertaining to the
community of interest, established representation practices and
efficiency of operations criteria do not rebut the presumption of
separate operations-support services and office-technical and business
services units in favor of a single unit for these classified employees.
16
See Greenfield Union High School District, EERB Decision No. 35,
October 25, 19 77. In that case there were 110 classified employees.
The Board upheld the hearing officer's finding that an operations-support
services unit of 4 8 employees and a residual unit of 6 2 employees were
appropriate. In Beverly Hills, there are 82 employees in SEIU's pro-
posed operations-support services unit, 9 6 in the residual unit
(including 32 food services employees) and nine CETA employees whose
job classifications are not reflected in the case record.
21

The appropriateness of SEIU's proposed operations-support services unit
The next question raised is whether the operations-support services
unit proposed by SEIU is an appropriate unit. It differs from the
presumptively appropriate unit in that it does not include food
services employees.
In Foothill-DeAnza the Board found a "skilled crafts and maintenance"
unit to be appropriate. This unit included those kinds of classifica-
tions which had been included in the operations-support services unit
established by the Board in Sweetwater. However, the unit did not
include food services employees because they were not sought to be
included in "skilled crafts and maintenance" unit. The Board stated:
The remaining classified employees in Foothill-
DeAnza Community College District shall constitute
a second negotiating unit. No party presented
evidence indicating that the residual unit was
inappropriate and we therefore do not find it to
be inappropriate.17
Although this case differs from Foothill-DeAnza in that SEIU did
present evidence to show that food services employees should not be
included in the same unit as the office-technical and business services
employees, it has previously been found that SEIU does not have standing
to advocate a position about their unit placement. The District and
CSEA are presumed not to object to the inclusion of the food services
employees in a residual unit with office-technical and business services
employees because it did not maintain a backup position to their
proposed comprehensive unit.18
17 Foothill-DeAnza, at p. 4. Also see Antioch Unified School District,
EERB Decision No. 37,at p. 7, November 7, 1977
18 See Antioch, fn. 14, at p. 7.
22

Based on Foothi11-DeAnza, then, the operations-support services
unit sought by SEIU is found to be an appropriate unit. Those employed
in the classifications included in the unit (see footnote 2, supra) have
a community of interest among themselves in that they all are responsible
for providing a proper physical environment and support services for
students. The unit does not include employees who would be placed in
the other presumptively appropriate units.
The residual unit includes all other classified employees whose
unit placement is in dispute at this hearing, including the food services
employees.
CETA employees
The only evidence presented at the hearing about CETA employees is
that there are nine of them employed in various job classifications and
that they are funded by the federal government, and if such funding
ceases the CETA employees would be terminated by the District.
There are no Board decisions pertaining to the unit placement of
CETA classified employees. The Board has held that CETA Program teachers
do not have a community of interest with and therefore should be
excluded from the unit of regular classroom teachers.
19
The basis of
this ruling was that the CETA Program was an entirely separate program
from the regular school program, as evidenced by the difference in
teacher qualifications, termination and reemployment rights, supervision,
the subjects taught, the students taught, work hours, wages, benefits
and funding.
20
19
New Haven Unified School District, EERB Decision No. 14,
March 22, 1977.
20 Ibid, at 12.
23

In this case, however, there is no evidence that the CETA
employees are distinguishable from the other classified employees in
any way other than the fact that funding for their positions is by
the federal government. The sole basis for the District's position to
exclude CETA employees from the units appears to be that their employ-
ment is of indeterminate duration. However, the Board has held that
the fact that employees may only be temporary is not itself sufficient
to exclude them from the unit with which they otherwise share a
community of interest.
21
The hearing officer is aware of the NLRB decisions which have
excluded CETA employees from an otherwise appropriate unit,
22
but
without a more developed record and argument (there is none in the
District's brief on this issue) it is inappropriate to establish a per
se rule that CETA employees should be excluded from units of other
classified employees.
Accordingly, the CETA employees are included in either the
operations-support services unit or the residual unit, depending upon
their job classifications or work functions.
21 Belmont Elementary School District, EERB Decision No. 7 at
5-6, December 30, 1976; Grossmont Union High School District, EERB
Decision No. 11 at 10, March 9, 19 77.
22See Clark County Mental Health Center, 225 NLRB No. 105, 92
LRRM 1545 (19 76); Kent County Association, 227 NLRB No. 222, 94 LRRM
1655 (1976). But cf. Monroe County Board of Commissioners, XI MERC
L.O. 817 (Mich. 1976) and Town of Pepperell, 3 MLC 1164 (Mass. 1976),
which rejected the NLRB analysis and included CETA employees in the
unit.
24

PROPOSED DECISION
It is the Proposed Decision that:
1. The following units are appropriate for the purpose of meeting
and negotiating, provided that an employee organization becomes the
exclusive representative of the units:
(1) Operations-Support Services Unit consisting of employees in
the following job classifications: carpenter (including head carpenter);
custodian (including athletic custodian); deliveryman; electrician
(including head electrician); gardener (including head gardener);
journeyman helper; locksmith and inspector; mechanic-head; painter
(including head painter); plumber (including head plumber); security
guard; and warehouseman; excluding all other employees and excluding
those positions agreed by the parties to be management, supervisory
or confidential.
(2) Residual Unit consisting of all employees not included in
the operations-support services unit; excluding instructional aides and
noon duty supervisors and excluding those positions agreed by the
parties to be management, supervisory or confidential.
2. CETA employees shall be included in either the operations-
support services unit or the residual unit according to their job
classifications or work function.
The parties have seven (7) calendar days from receipt of this
Proposed Decision in which to file exceptions in accordance with
Section 33380 of the EERB's Rules and Regulations. If no party files
timely exceptions, this Proposed Decision will become final on
December 7, 1977.
25

Within 	ten 	(10) 	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 	posti~g period 	in
each unit 	if 	(1) 	not more 	than one 	e~ployee 	organization qualifies 	for
the 	ballot, 	or 	J2) 	only one 	employee 	organization qualifies 	for 	the
ballot 	and 	the 	employer 	does 	not 	grant 	voluntary 	recognition.	. . 	*
The 	date used 	to 	establish 	the 	number 	of 	employees 	in 	the 	above
units 	shall 	be 	the 	date 	of 	this 	decision unless 	another 	date 	is
deemed appropriate by 	the 	Regional 	Director 	and noticed 	to 	the 	parties,
In the 	event 	another 	date 	is 	selected, 	the 	R~gional 	Director may
extend 	the 	time 	for 	employee 	organizations 	to 	demonstrate 	at 	least
30 percent 	support 	in 	the 	units.
DATED : 	November 	25, 	1977
--David 	Schlossbe~,-
Hearing Offi~	.... ~..-·
*Voluntary 	recognition 	requires 	majority proof 	of 	support 	in 	all
cases . 	See Gov . 	Code 	Sec. 	3544 	and 	3544.1.
26