Palo Alto Unified School District/Jefferson Union High School District (PERB 0084E)

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STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PALO 	ALTO 	UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
SUBSTITUTE TEACHERS' 	SECTION,
PALO 	ALTO 	EDUCATORS 	ASSOCIATION,
Employee 	Organization.
JEFFERSON 	UNION 	HIGH 	SCHOOL 	DISTRICT,
Employer,
and
AMERICAN 	FEDERATION 	OF 	TEACHERS,
LOCAL 1481, AFL-CIO,
Employee 	Organization.
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) 	Case No. 	SF-R-497
PERB Decision No. 	84
January 9, 	1979
Case No. 	SF-R-550
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Appearances: 	Daniel C. 	Cassidy, 	Attorney 	(Paterson 	and
Taggart) 	for 	Palo Alto Unified 	School 	District; 	Byron 	Mellberg,
Attorney 	(Mellberg 	and 	Stearns) 	for 	Substitute 	Teachers'
Section, 	Palo Alto 	Educators Association; 	George Camerlengo,
Attorney 	(San Mateo 	District Attorney's 	Office) 	for 	the
Jefferson 	Union 	High 	School 	District; 	Stewart 	Weinberg,
Attorney 	(Van Bourg, 	Allen, 	Weinberg 	and 	Roger) 	for 	American
Federation of Teachers, 	Local 1481, 	AFL-CIO.
Before 	Gluck, 	Chairperson; 	Cossack Twohey and Gonzales, 	Members.
DECISION
These 	two 	cases 	are 	consolidated 	for 	decision 	by 	the
Public 	Employment 	Relations 	Board 	(hereafter 	PERB 	or 	Board)
because 	they 	raise 	two 	common 	issues. 	1) 	Whether 	substitute
teachers 	are 	public 	school 	employees 	within 	the 	meaning 	of

section 	3540.1 (j) 	of 	the Educational Employment Relations Act
(hereafter 	EERA)1 and 	2) 	whether 	a unit 	of 	substitute
teachers 	is 	an 	appropriate 	unit 	for 	negotiating 	pursuant 	to 	the
requirements 	set 	out 	by 	the Legislature 	in 	section 3545 	of 	the
EERA.
These 	cases 	are 	before 	the 	PERB on 	exceptions 	by 	the
Palo Alto Unified 	School 	District 	and 	by 	the 	Jefferson Union
High 	School 	District 	(hereafter 	the 	Palo Alto District 	and 	the
Jefferson District, 	respectively) 	to hearing officers' 	proposed
decisions, 	both 	issued 	simultaneously. 	Both decisions 	held
that 	substitute 	teachers 	are 	"employees" 	within 	the meaning of
section 3540.1 (j) 	and that 	a 	unit 	composed of 	substitute
teachers 	is 	an 	appropriate 	negotiating unit. 	The 	districts
contest 	these 	conclusions. 	The 	Jefferson District 	specifically
contends 	that 	its 	per 	diem 	substitutes 	do 	not 	hold 	"positions"
within 	the 	school 	district 	and 	therefore 	cannot 	form 	an
appropriate 	negotiating 	unit, 	and 	that 	negotiating 	with
substitutes 	on matters 	within 	the 	scope 	of 	representation
(section 	3543.2) 	would be 	a 	"practical 	impossibility."
* 	* * * *
Based 	on the 	entire 	record 	in each 	case, 	the 	findings 	of
fact 	regarding 	certificated 	employees 	contained 	in 	the 	attached
proposed 	decisions 	are 	adopted 	by 	the 	Board 	itself.
1 The 	EERA 	is 	codified 	at Government Code 	section 	3540
et 	seq. 	All 	section 	references 	are 	to the Government Code
unless 	otherwise 	indicated.
22

Substitute 	Teachers 	Are 	Employees Within 	the Meaning 	of
Section 3540.1 (j) 	of the EERA
The 	Jefferson District 	argues 	that 	its 	per 	diem 	substitute
teachers 	are 	not 	"employees" 	under 	the EERA because 	they have
no written contract. 	In support of 	this 	argument, 	it cites 	the
1935 	case of Wood v. 	Los Angeles 	City School District 	(1935) 	6
Cal.App.2d 	401.
The 	authority for 	the 	court's 	statement 	that 	a written
contract 	is 	required 	for 	employment 	is 	not 	determinable 	from
the 	decision 	itself.2 Furthermore, 	neither 	the 	question of
whether 	the 	teacher 	was 	an 	employee 	of 	the 	school 	district 	nor
the 	existence of 	a written contract was 	ever 	in 	issue, 	since
the 	teacher 	was 	in 	fact 	serving on 	a written contract 	as 	a
substitute. 	At 	any rate, 	we do 	not 	find 	the Wood case 	relevant
to 	the 	issues 	presented 	here. 	The 	authority of 	the 	PERB
derives 	from 	the EERA itself, 	which defines 	"employee" 	in
Section 3540.l(j):
"Public school 	employee" 	or 	"employee" 	means
any person 	employed 	by 	any 	public 	school
employer 	except 	persons 	elected 	by 	popular
vote, 	persons 	appointed 	by the Governor 	of
this State, management employees, and
confidential 	employees.
2 The 	Wood 	court 	cited 	the 	case of 	Gould 	v. 	Santa Ana High
School District 	(1933) 	131 Cal.App. 	346, 	in which 	it was held
that, 	as 	used 	in the school laws of California, 	the term
"employment" 	meant 	services 	to 	be 	rendered 	for 	compensation on
an 	express, 	rather 	than 	implied contract. 	In both 	the Wood 	and
Gould 	cases, 	the 	issue was 	not whether 	certain 	teachers were
employees 	of 	the 	school 	districts, 	but 	rather was 	limited to
whether 	the 	teacher 	in question 	had 	served 	in 	a probationary
capacity 	such 	that 	would 	qualify 	that 	teacher 	for 	permanent
status.
33

4
Thus, 	EERA excludes 	only 	four 	specific 	categories 	of 	persons
who 	would 	otherwise 	be 	deemed 	as 	employed 	by 	a 	public 	school
employer. 	"Substitutes" 	are 	not one 	of 	these 	four.
The 	districts 	contend 	that, 	even 	though 	the 	statute 	does
not 	specifically 	exclude 	substitutes, 	PERB 	should 	do 	so,
essentially because 	their 	employment 	is 	casual. 	"We 	believe"
the 	Palo Alto District 	states, 	"an employee's 	casual 	status 	is
first 	an 	employment 	issue 	and 	then 	a 	unit 	issue." 	It 	is 	argued
that 	substitute 	teachers 	are 	employed 	on 	an 	"as-needed" 	basis,
and 	a 	substitute 	does 	not 	enjoy 	an 	expectancy of 	continued
employment.
The 	Board 	disagrees 	with 	these 	arguments. 	An 	initial
consideration 	is 	that 	substitutes, 	who 	teach 	in 	the place 	of
absent 	regular 	teachers, 	as 	a class 	form an 	integral, 	essential
component 	of 	the 	instructional 	staffing 	program 	of 	the 	public
schools. 	Although 	the 	freguency with 	which 	any 	given
substitute 	will 	teach 	is 	on 	this 	record 	difficult 	to 	ascertain
with precision, 	it 	is clear 	that 	regular 	teachers, 	as a group,
are 	occasionally 	absent 	and 	that 	substitues 	will 	be 	employed 	to
teach 	in 	their 	place. 	In 	the Jefferson case, 	the hearing
officer 	estimated 	that 	the 	Jefferson 	District 	required 	over
2,500 	substitute 	days 	through April 	in 	the 	1967-77 	school
year. 	In 	the Palo Alto case, 	the 	total 	number 	of 	substitute
teacher 	days 	taught 	in 	1975-76 	was 	found 	to be 	5,132.5. 	To
characterize 	substitutes 	as 	a class 	as 	peripheral or 	ephemeral
employees 	is misleading 	and 	fails 	to 	reflect 	their 	central,
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continuing 	role 	in 	the 	staffing 	of public schools. 	Indeed,
this 	role provides 	affirmative, 	sound reasons why substitutes
should 	be 	considered 	employees 	within 	the meaning 	of 	EERA.
Second, 	exclusion 	from 	coverage 	under 	EERA would 	deny 	them
far more 	than 	negotiating 	rights. 	Section 	3543 	of EERA 	endows
public school 	employees with certain rights, 	including, 	among
others, 	those of 	forming, 	joining 	and participating 	in the
activities 	of 	employee organizations 	for 	the 	purpose 	of
representation on 	all matters 	of 	employer/employee 	relations.
Section 3543.5(a) 	prohibits, 	among other 	things, 	public school
employers 	from 	threatening 	reprisals 	on 	or 	discriminating
against 	employees 	for 	exercising 	any 	right 	granted 	to 	employees
by EERA. 	Thus, 	defining substitutes 	as 	"nonemployees" would
remove 	them 	from 	statutory 	protections 	against 	discrimination
and 	reprisals 	for 	engaging 	in 	organizational 	activity 	in
addition 	to denying 	them 	negotiation 	rights. 	Such 	protections
appear 	especially 	significant 	for 	substitutes 	since 	they 	are
not 	covered 	by 	tenure provisions 	of 	the 	Education Code 	and
exist 	on 	a substitute 	list 	at 	the 	discretion of 	the district.
Thus, 	substitutes 	who 	comprise such 	an 	important 	staffing
function 	in 	the 	districts 	should 	not 	be 	denied 	the 	fundamental
protections 	which 	EERA 	confers 	on 	public 	school 	employees.3
3The 	Board's 	position 	that 	the 	question of 	"casual"
status 	does 	not 	determine whether 	or 	not 	a worker 	is 	an
"employee" 	within 	the meaning 	of 	EERA 	accords 	with 	the
treatment 	of 	this 	issue 	by 	the National 	Labor 	Relations Board
(NLRB). 	The NLRB has 	consistently treated 	the 	intermittency or
irregularity of 	a worker's 	employment 	as 	a 	unit 	issue 	and 	has
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avoided 	denying 	"casual" employees coverage 	under 	the
National 	Labor 	Relations Act. 	In The 	Tamphon Trading 	Company,
Inc. 	(1950) 	88 NLRB 597 	which involved stevedores, 	the NLRB
indicated 	that 	it was 	"common 	knowledge" 	that 	the 	tenure of
stevedores 	in 	the 	shipping 	industry 	is of 	a casual 	nature. 	The
NLRB 	reasoned 	that 	"there 	is 	nothing 	in 	the NLRA that 	restricts
or 	limits 	the 	definition of 	an 	employee 	to one whose 	tenure of
employment must 	be 	fixed 	to 	a 	regular 	day 	to 	day or 	week 	to
week 	or 	month 	to month 	basis." 	Notwithstanding 	the 	"casual
nature" 	of 	their 	employment, 	the stevedores 	"have not been
deprived 	of 	the 	rights 	of 	employees 	under 	this 	act." 	See 	also
All Work, 	Inc. 	(1971) 	193 NLRB 918.
6
We 	believe 	that 	the 	Legislature 	intended 	the 	definition 	of
of 	"public school 	employee" 	to be 	inclusive, 	and extend broad
coverage 	for 	representation 	and 	negotiating 	rights 	for 	persons
who perform 	services 	for, 	and 	receive 	compensation 	from, 	public
school 	employers. 	The Board 	thus 	finds 	that substitutes 	are
public school 	employees 	within 	the meaning 	of 	the 	EERA.
Substitutes May Hold Positions 	in 	a 	School 	District
The Jefferson District 	contends 	that, 	pursuant 	to
section 	3544, 	substitutes may not 	be part of 	a negotiating 	unit
because 	they do 	not 	hold 	"positions" 	in 	a school 	district 	but
rather 	only 	replace persons 	employed 	in positions 	who 	are
absent. 	Section 3544 provides 	for, 	inter 	alia, 	the 	filing of 	a
representation 	petition 	by 	an 	employee 	organization 	seeking
exclusive 	recognition in an appropriate 	unit. 	It 	states 	in
part:
...the 	request 	[for 	recognition] 	shall
describe 	the 	grouping 	of 	jobs 	or 	positions
which 	constitute 	the 	unit 	claimed 	to 	be
appropriate....
(con't fn. 	3)
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We 	do 	not 	interpret 	the 	use 	of 	the 	words 	"jobs 	or
positions" 	to 	be 	a 	limitation 	on 	the 	eligibility of 	employees
who may 	be 	included 	in 	negotiating 	units 	or 	on 	the 	type 	of
classifications 	which may 	comprise 	an 	appropriate 	unit. 	The
function 	of 	the 	words 	"jobs 	or 	positions" 	used 	in 	section 	3544
is merely 	to describe 	or 	to 	identify, 	and 	not 	to 	limit, 	the
constituent 	occupational 	classifications 	in 	the 	unit 	sought 	by
the 	petitioner.
A Unit 	of 	Substitutes 	is 	an Appropriate 	Negotiating 	Unit
Having 	decided 	that 	substitutes 	are 	eligible 	to 	be 	included
in 	a negotiating 	unit, 	the 	question 	of 	the 	appropriateness 	of 	a
unit 	of 	substitutes must 	be 	examined. 	In Peralta Community
College District 	(11/17/78) 	PERB Decision No. 	77 	the Board
modified 	its 	earlier 	interpretation 	of 	the 	term 	"classroom
teacher" employed 	in 	section 	3545 (b), 	which 	indicated 	that
there 	exists 	a 	rebuttable 	presumption 	that 	all 	classroom
teachers 	share 	a 	community of 	interest. 	As 	the 	Board 	there
explained:
Reading 	subsection 	3545 (b) 	together 	with 	its
companion subsection 	(a) 	gives 	rise 	to 	the
presumption 	that 	all 	teachers 	are 	to 	be
placed 	in 	a 	single 	unit 	save 	where 	the
criteria 	of 	the 	latter 	section 	cannot 	be
met. 	In 	this way, 	the legislative
preference, 	as 	the Board perceives 	it, 	for
the 	largest possible 	viable 	unit 	of 	teachers
can 	be 	satisfied. 	Thus, 	we would place 	the
burden 	of 	proving 	the 	inapppropriateness 	of
a 	comprehensive 	teachers' 	unit 	on 	those
opposing 	it.
If 	this 	reasoning were 	applied 	to 	the cases before 	us, 	a
presumption 	would 	exist 	that 	substitute 	teachers 	shared 	a
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community of 	interest 	with 	the 	regular, 	full-time 	teachers, 	and
the 	unit 	of 	substitutes 	would 	be presumptively 	inappropriate.
However, 	the 	above 	described 	presumption 	will 	not 	be 	applied 	to
these 	cases. 	The modified 	interpretation of 	section 	3545(b),
the 	Board 	stated 	in 	Peralta, 	should 	only have 	prospective
effect 	in 	situations 	where 	a 	retrospective 	application 	would
cause 	disruption 	and 	instability. 	In Peralta, 	this 	Board
recognized 	the 	hazards 	to 	stable 	employer-employee 	relations 	of
retrospective 	application 	of 	the 	new 	unit 	appropriateness
guidelines 	established 	therein. 	It 	stated
[n]egotiations 	and 	certifications 	have 	been
granted, 	contracts 	have 	been executed 	and 	in
many 	units 	negotiations 	are 	even 	now 	in
progress. 	It would 	not 	serve 	the 	statutory
goal 	of 	the 	stablization 	of 	employer-
employee 	organization 	relations 	in 	the
public 	school 	system 	if we were 	to void, 	or
in 	any 	way 	interfere 	with 	units 	already
established 	under 	the 	guidelines 	of
Belmont [4] or 	Petaluma.[5]
In 	the cases 	before 	us, 	application of 	the Peralta
interpretation 	of 	section 	3545(b) 	would 	clearly 	carry with 	it
potential 	for 	disruption. 	Representation 	files of 	PERB, 	of
which 	official 	notice 	is 	taken, 	indicate 	that 	in 	both 	districts
there 	exist 	negotiating 	units 	of 	teachers 	which 	exclude
4Belmont Elementary 	School 	District 	(12/30/76) 	EERB
Decision No. 	7.
5Petaluma 	City 	Elementary 	and 	High 	School 	Districts,
(2/22/77) 	EERB Decision No. 	9.

substitutes.6 In 	both 	units 	there 	are 	contracts 	between 	the
districts 	and 	an exclusive 	representative, 	and 	these contracts
contain 	recognition 	clauses 	for 	certificated 	units 	which 	also
exclude 	substitutes.
n
Since 	the 	interpretation of 	section 3545 (b) 	established 	in
Peralta 	is 	not 	being 	applied 	to 	this 	case, 	we turn 	to the
question of 	whether 	the 	substitutes 	in 	each 	district 	constitute
appropriate 	negotiating 	units. 	The Board 	agrees 	with 	the
hearing officers' 	findings 	that 	the 	substitutes 	in each
district 	share 	a 	community of 	interest 	among 	themselves 	based
on 	the 	fact 	that 	their 	principal 	responsibility 	is 	to 	teach
students 	in 	a 	classroom 	setting 	and 	that 	the 	terms 	and
conditions 	of 	their 	employment 	are 	sufficiently 	alike. 	The
Board 	also 	finds 	that 	considerations 	of 	efficiency of
operations 	of 	the 	school 	district 	and 	established 	practice 	do
not 	indicate 	that 	a 	unit 	of 	substitutes 	would 	be 	inappropriate
under 	the 	exceptional 	circumstances 	of 	this 	case. 	Therefore,
the Board 	approves 	the petitions 	for 	units 	of 	substitutes.
66Irn 	the Palo Alto District, 	a unit of 	certificated
employees 	which 	excluded 	substitutes 	was 	established 	on
May 	7, 	1976. 	The 	district 	voluntarily 	recognized 	the 	unit
sought 	by the 	Palo Alto Educators Association, 	which was
originally petitioned 	for 	on April 	5, 	1976, 	and 	amended 	to
exclude substitutes on April 8, 	1976. 	On January 17, 	1978, 	the
Palo Alto 	Educators 	Association 	and 	the 	Palo Alto Unified
School 	District 	entered 	into 	a 	collective 	bargaining 	agreement
for the term January 17, 	1978, 	to June 30, 	1980. 	This contract
contained 	a 	recognition 	agreement 	whereby 	the 	unit 	recognized
was 	that 	created 	by 	the 	above-mentioned 	voluntary 	recognition.
The 	request 	for 	recognition 	by 	the 	Substitute 	Teachers
99

Section/Palo Alto Educators Association 	for 	a 	unit 	of
substitutes was 	filed July 	28, 	1976.
In the Jefferson District, AFT, 	Local 1481, became
exclusive 	representative 	in 	a 	unit 	of 	teachers 	which excluded
per 	diem substitutes on May 26, 	1976, 	as 	a result of winning 	a
representation 	election. 	AFT had on April 	1, 	1976, 	originally
sought 	a unit of 	all 	teachers. 	But 	in the consent election
agreement 	prior 	to the election, 	per 	diem 	substitutes 	were
excluded 	from 	the 	agreed 	upon 	negotiating 	unit. 	AFT 	and 	the
district 	entered 	into 	a 	collective 	negotiating 	agreement 	on
March 29, 	1977, 	for 	the term September 1, 	1976, 	until June 30,
1978. 	The 	contract 	contained 	a 	recognition 	clause which
incorporated 	the 	exclusion of 	substitutes 	from 	the 	unit 	of
certificated teachers. 	On March 24, 	1977, AFT, 	Local 1481,
sought 	recognition 	as 	exclusive 	representative 	for 	a 	unit 	of
substitutes.
The 	Board 	also 	agrees 	with 	the 	hearing 	officers'
conclusions 	that 	the 	negotiating 	unit 	of 	substitutes 	should 	be
broadly 	defined 	and 	include 	all 	employees 	who work 	in 	the
position of 	substitute. 	Therefore, 	a proper 	unit description
is 	one which 	comprises 	all 	substitutes 	who 	are 	employed 	by 	each
district.
Voter 	Eligibility
While 	it 	is 	presumed 	that 	salaries 	and other 	terms 	and
conditions 	of 	employment 	will 	affect 	all members 	of 	the 	unit,
the 	choice 	of 	a 	negotiating 	agent 	should 	be 	limited 	to 	those
substitutes 	with 	an 	established 	interest 	in 	employment
relations 	with 	the 	district. 	We 	therefore 	determine 	that
substitute 	teachers 	on 	the 	current 	substitute 	teacher 	list 	who
have 	been 	employed 	for 	at 	least 	10 	percent 	of 	the pupil 	school
days 	during 	the 1977-78 	school 	year, 	or 	10 percent of 	the pupil
(con't fn. 	6)
10

school 	days 	of 	the 	current 	school 	year 	up 	until 	the 	election
cut-off 	date 	which 	is 	established 	by 	the 	regional 	director
shall 	be 	eligible 	to 	vote 	in 	that 	election.
ORDER
Upon 	the 	entire 	record 	in 	this 	case, 	the 	Public 	Employment
Relations 	Board 	ORDERS:
1) 	The 	following 	units 	are 	appropriate 	for 	meeting 	and
negotiating 	provided 	an 	employee 	organization 	becomes 	the
exclusive 	representative:
In 	the 	Palo Alto 	Unified 	School 	District:
all 	substitutes 	employed 	by 	the 	Palo Alto
Unified 	School 	District;
In 	the 	Jefferson 	Union 	High 	School
District: 	all 	per 	diem 	substitutes 	employed
by 	the 	Jefferson 	Union 	High 	School 	District.
2) 	It 	is 	further 	ORDERED 	that 	a 	substitute 	employee 	in 	the
Palo Alto 	Unified 	School 	District 	Substitute 	Unit 	shall 	be
eligible 	to 	vote 	in 	an 	election 	for 	exclusive 	representative 	if
the 	employee 	is 	on 	the 	current 	substitute 	teacher 	list 	and 	has
worked 	at 	least 	10 	percent 	of 	the 	pupil 	school 	days 	of 	the
1977-78 	school 	year, 	or 	at 	least 	10 	percent 	of 	the 	pupil 	school
days 	of 	the 	current 	school 	year 	up 	until 	the 	election 	cut-off
date 	which 	is 	established 	by 	the 	regional 	director.
It 	is 	further 	ORDERED 	that: 	because 	the 	composition 	of 	the
unit 	the 	Board 	has 	found 	appropriate 	is 	the 	same 	as 	that 	which
petitioner 	seeks, 	no 	new 	showing 	of 	support 	will 	be 	required.
It 	is 	further 	ORDERED 	that, in 	view of 	the 	time 	elapsed 	since
the 	filing 	of 	the 	petition 	and 	accompanying 	proof 	of 	support,
11

the	the employer is not required to grant voluntary recognition andogniti on 	and
may request an election. o n. 	Theref o re, 	pursuant 	to 	Cal . 	Adm .
Code, tit. 8, sections 33460 et seq. (Article 8, Representation8, 	Representation
Elections), the regional director shall conduct an election in an election 	in
the unit if the employer does not grant voluntary recognition. cognition .
elli>lo yer 	is 	not 	required 	t o 	gran t 	vo lunt a ry 	rec
may 	reques t 	an ele c ti 	Therefore, pursuant to Cal. Adm.
Code, 	tit . 	8, 	sections 	33460 	et 	seq. 	(Article
Elections), 	the 	regional 	director 	shall 	conduct
the 	unit 	if 	the 	employer 	does 	not 	grant 	voluntary 	re
3)	3) 	It 	is 	further 	ORDERED 	that 	a 	per 	diem substitute
employee 	in 	the 	Jefferson Union High 	School 	District 	shall 	be
eligible 	to vote 	in an election 	for 	exclusive 	representative 	if
the 	employee 	is 	on 	the 	current 	substitute 	teacher 	list 	and has
worked 	at 	least 	10 	percent 	of 	the 	pupil 	school 	days 	of 	the
1977-78 school year, or at least 10 percent of the pupil school
days 	of 	the 	current 	school 	year 	up 	until 	the 	election 	cut-off
date which is established by the regional director. 	director .
school	pil
It is further ORDERED that a per diem substitute
employee in the Jefferson Union High School District shall be
eligible to vote in an election for exclusive representative if
the employee is on the current substitute teacher list and has
worked at least 10 percent of the pupil school days of the
1977-78 	school 	year, 	or 	at 	least 	10 	percent 	of 	the 	pu
days of the current school year up until the election cut-off
date 	which 	is 	established 	by 	the 	regional
It is further ORDERED that: because the composition of the	It 	is 	further 	ORDERED 	that : 	because 	the 	composition of 	the
unit 	the 	Board 	has 	found 	appropriate 	is 	the 	same 	as 	that 	which
petitioner 	seeks, 	no 	new 	showing 	of 	support 	will 	be 	required .
It 	is 	further 	ORDERED 	that,in view of 	the 	time 	elapsed 	since
the 	filing 	of 	the 	petition 	and 	accompanying proof 	of 	support,
the 	employer 	is 	not 	required 	to 	grant 	voluntary 	recognition 	and
may 	request 	an election . 	Therefore, 	pursuant 	to Cal . 	Adm .
Code, 	tit . 	8, 	sections 	33460 	et 	seq. 	(Article 	8, 	Representation
Elections), 	the 	regional 	director 	shall 	conduct 	an election 	in
the unit if the employer does not grant voluntary recognition. cognition .
unit the Board has found appropriate is the same as that which
petitioner seeks, no new showing of support will be required.
It is further ORDERED that, in view of the time elapsed since
the filing of the petition and accompanying proof of support,
the employer is not required to grant voluntary recognition and
may request an election. Therefore, pursuant to Cal. Adm.
Code, tit. 8, sections 33460 et seq. (Article 8, Representation
Elections) , the regional director shall conduct an election in
the 	unit 	if 	the 	employer 	does 	not 	grant 	voluntary 	re
.....-,
/-----------------,,r--
By : 	Harry 	Gluck, 	Chairp 	Jerilou Cossack Twohey, 	Me
f
Raymond J . 	Gonzales, 	Member, 	diss
I 	dissent 	from the majority's 	decision 	to 	form a 	s
12
By: Harry Gluck, Chairperson erson 	Jerilou Cossack Twohey, Membermber
Raymond J. Gonzales, Member, dissentinenting :	g:
I dissent from the majority's decision to form a separate unit eparate 	unit
12

of 	substitute 	employees. 	I 	do not believe 	that per 	diem
substitutes 	should be 	considered 	employees 	within 	the meaning
of the EERA. 	As 	a 	group, 	their 	employment 	relationship with
any 	individual 	school 	district 	is 	too 	ephemeral 	to 	justify
granting 	them the 	right 	to 	engage 	in negotiations.
A 	substitute's 	employment 	relationship with a 	school 	district
involves 	being placed on a 	list. 	As 	the Palo 	Alto 	Unified 	School
District argues:
The 	existence 	of a 	substitute 	teachers 	list
does not 	create an employment 	status, 	yet 	the
hearing 	officer 	concludes 	that 	any 	substitute
teacher whose name 	appears 	on 	the 	current 	list,
who worked as 	little as 	one hour last year,
and who may not have worked at 	all 	this 	year,
is 	an employee of the 	district.
Both 	the majority 	and 	the 	hearing 	officer 	apparently believe 	that
being placed on a 	list 	is 	a 	sufficiently 	strong 	tie 	to 	a 	district
to 	justify 	an 	extension of all 	EERA rights 	to 	per 	diem substitutes,
They both attempt 	to 	concoct 	a unit 	and a voter 	eligibility
formula 	to 	satisfy 	their 	desire, 	apparent 	in so many majority
decisions, 	to 	guarantee coverage of the Act 	to 	everyone who 	simply
passes 	through a 	district 	on 	a very 	limited basis. 	The results
in both 	instances 	are 	so 	absurd that 	they are akin to 	a random
walk of 	an 	infinite number 	of monkeys 	across 	the keys 	of an
infinite number of 	typewriters 	in their 	effort 	to 	reproduce 	the
works 	of Shakespeare.
I 	do 	not believe 	that 	the EERA requires 	this 	Board 	to 	extend
negotiating rights 	to 	every person who 	receives 	money 	from a
school 	district, 	no matter how attenuated 	the 	employment 	relation-
ship 	is. 	The 	Board 	should exercise 	judgment 	and 	its 	supposed
knowledge of the 	educational process 	of 	this 	state 	to 	determine
13

when a person has 	a 	sufficiently 	strong 	interest 	in his/her
employment with a 	school 	district 	to 	be 	entitled 	to 	compel 	the
district 	to negotiate 	the 	terms 	and conditions 	of 	that 	employment.
In my opinion, 	substitutes 	do not have 	such a 	substantial and
continuing 	employment 	relationship 	with 	individual 	school 	districts
that 	they 	should be 	given negotiating rights.
The 	attenuated nature 	of a 	substitute's 	employment 	is
demonstrated by 	the 	fact 	that being on 	the 	substitute 	list 	is 	no
guarantee 	that a 	substitute will 	ever be hired. 	Also, 	the
substitute 	is 	under no 	obligation 	to 	accept employment 	if offered.
Employment 	is 	on a 	day-to-day basis; 	the 	district 	can 	fire 	the
substitute 	at 	any 	time1 while 	the 	substitute 	can also 	refuse 	to
work at 	any time. 	Even the Board, 	in excluding both per 	diem and
long-term substitutes 	from certificated units, 	has 	consistently
noted that 	substitutes 	have no 	expectation of future 	employment.2
Although 	some 	substitutes 	work year after year, 	substitute
lists 	in general 	are subject 	to 	constant 	fluctuation; 	thus 	any
unit 	formed would 	tend 	to 	be unstable. 	In 	the Jefferson district,
for 	example, 	on a 	substitute 	list 	averaging approximately 	75
persons, 	in one year 	26 persons were 	dropped from the 	list 	and
41 were 	added.
I believe 	that 	these 	factors 	show that 	substitutes 	do not have
a 	substantial 	and 	continuing 	employment 	relationship 	with 	any
particular 	school 	district. 	I realize, this 	opinion is 	contrary to
1Education Code 	Section 44953.
2Belmont Elementary School 	District 	(12/30/76) 	EERB 	Decision
No. 	7; 	Petaluma City Elementary and High School Districts 	(2/22/77)
EERB Decision No. 	9; 	Oakland Unified School 	District 	(3/28/77)
EERB Decision No. 	15.
. .
14

NLRB 	decisions 	and to 	some decisions 	in other 	states. 	However,
I have never viewed 	those 	types 	of 	decisions 	as 	binding or 	even
particularly 	influential 	on 	this 	Board. 	The NLRB 	deals 	only
with private 	sector 	employees. 	None 	of 	the 	types 	of 	employees
covered by NLRB 	decisions relating to on-call, 	as-needed
employees 	(e.g., 	"stevedores," 	"day laborers") 	have roles 	that
are 	remotely related 	to 	those 	of 	substitute 	teachers 	in our
public 	school 	system. 	And, 	while 	a few other 	states have
decided 	that 	substitutes 	should be 	given negotiating rights, 	I
think California, 	being more 	similar 	to 	the State 	of New York in
its 	educational system, 	should, 	perhaps, 	take the course New York
has 	pursued 	in 	deciding 	that 	substitutes' 	employment 	relationship
with 	school 	districts 	is 	too 	ephemeral 	to 	extend 	them the
coverage 	of 	the 	EERA. 3
I 	think 	the 	insubstantial 	employment 	relationship 	that
substitutes 	have with a particular 	district 	is 	a 	sufficient
reason 	for 	excluding 	them from negotiating rights. 	However, 	I
also 	have 	strong policy reasons 	for my 	decision. 	In 	the 	first
place, 	many substitutes 	are on lists 	in two or more 	school
districts. 	To 	allow them full 	negotiating rights 	in 	every
district 	in which 	they are 	listed would 	give 	them several 	"bites
at 	the 	taxpayers' 	apple." 	In these 	times 	of shrinking school
budgets, 	such a result 	should be 	avoided.
In addition, 	giving substitutes negotiating rights 	enables
them to negotiate not only wages, 	but all 	of the other 	terms
33 East Ramapo Central 	School 	District 	(1973) 	6 New York PERB
4059; 	Bernard T. 	King (1973) 	6 New York PERB 3132.
15

and 	conditions 	of 	employment 	listed 	in 	section 	3543.2. 	For
example, 	to 	allow a 	separate unit of per diem substitutes 	the
right 	to bargain on 	class 	size while 	the 	district at 	the 	same
time must negotiate 	class 	size with 	the 	regular unit 	of 	certifi-
cated employees would 	in reality be 	a 	contradiction. 	How could
the 	district possibly establish two 	separate policies 	on 	class
size--one 	for 	the 	regular certificated 	teachers, 	and another 	for
the 	substitutes who 	are hired by 	the 	district 	on an 	as-needed
basis? 	What would 	the 	district 	do? 	Send 	some 	children home
when 	their 	teacher 	is 	absent 	so 	that 	the 	class 	size would be
the one negotiated 	for 	day-to-day 	substitutes? 	Hire 	two
substitutes 	to 	replace 	one regular 	teacher?
Another 	policy 	consideration 	is 	that 	the per 	diem substitutes
have 	in 	the 	course 	of 	the 	last 	few years 	allowed 	districts 	to
comply with 	their 	statutory mandate 	of 	providing 	a public 	school
education when 	some employees 	in 	the 	state have violated 	the 	law
by going on strike. 	The majority, 	on page 	5 of its 	decision,
cleverly disguises 	its 	intent 	in this 	same regard. 	It 	states:
Thus, 	defining substitutes as "non-employees"
would remove 	them 	from 	statutory 	protections
against 	discrimination 	and 	reprisals 	for
engaging 	in organizational 	activity 	in 	addition
to 	denying 	them negotiating rights.
What 	the majority has 	expressed 	in 	its 	brief 	to 	the 	Supreme Court
on 	strikes 	by public 	employees 	is 	that 	organizational 	activity
arguably 	includes 	the right 	to 	strike.4 The 	fact 	is 	that
44 Brief of 	the 	Public Employment Relations 	Board 	to 	the
Supreme 	Court 	of California, 	California Teachers 	Association v.
Superior Court for the County of San Diego, 	Case No. 	L.A. 	30977,
at p. 	18.
16

California 	courts 	have 	expressly 	prohibited 	strikes 	by public
school 	employees 	in the absence of legislative authorization. 5	5
The majority of this Board, 	on the other hand, 	appears 	to have
an opposite view. 	What 	they are 	doing by allowing 	for 	the
establishment 	of 	a unit 	of part-time per 	diem substitutes 	is
effectively 	eliminating 	the work 	force 	on which 	a 	district
depends 	to 	provide 	children an education when 	its 	regular
employees 	engage 	in an unlawful 	strike.
The 	problems 	that are 	raised by 	giving 	substitutes 	negotiating
rights 	are 	further 	demonstrated by 	the majority's 	efforts 	to 	limit
voting 	eligibility. 	They 	decide 	that voting eligibility 	should be
confined 	to 	substitutes 	"with 	an 	established 	interest 	in 	employment
relations with 	the 	district."
Assuming, 	arguendo, 	that 	substitutes 	should be 	given
negotiating rights, 	this 	standard makes no 	sense. 	What 	the Board
has 	done 	is 	conclude 	that 	some employees who have 	requested of 	the
district 	that 	they be placed on 	the 	per 	diem substitute 	teachers
list 	do not have 	"established 	interests 	in employment relations
with 	the 	district." 	Thus, 	we must assume 	that 	some per 	diem
substitute 	teachers' 	reason 	for putting 	their name on a list was
perhaps 	frivolous 	and 	could not 	in 	itself 	demonstrate 	an 	established
interest 	in employment relations.
Moreover, 	if some per diem substitutes 	do not 	share a
substantial 	interest 	in 	those matters within the 	scope 	of
representation, 	then they obviously do not 	share 	a community of
55 See, 	e.g., 	Pasadena Unified School District v. 	Pasadena
Federation of Teachers 	(1977) 	72 	Cal.App.3d 100.
17

interest with 	those 	per 	diem substitutes 	who 	qualify under 	the
majority's 	formula 	and 	should not 	be 	included 	in 	the 	same
negotiating unit. 	On the 	other hand, 	if 	they do 	share a community
of 	interest, 	then 	logically 	they must also 	share 	a mutual 	interest
in matters 	within 	the 	scope 	of representation 	and 	should 	thus
enjoy 	the 	equal 	right 	to vote 	and participate 	in 	the 	activities
of 	the 	employee organization of 	their 	own 	choosing 	as 	specified
in the Act.
I 	personally 	disagree with 	the 	idea 	that 	only 	some 	employees
should have 	the right 	to 	vote 	for 	the 	representative of all
employees 	in a unit. 	If a substitute has 	a significant 	enough
employment 	interest 	to 	be 	included 	in a unit, 	s/he 	should have
the right 	to 	cast 	a vote 	for or 	against 	exclusive representation.
I 	also 	think 	that 	creating 	a 	voting 	eligibility 	requirement
can lead 	to 	absurd results. 	Per 	diem substitutes who 	have been
designated by 	the majority as 	members 	of 	the 	regular unit 	of per
diem substitutes 	could 	sign proof 	of 	support 	cards 	or 	petitions
pursuant 	to 	Government 	Code 	section 	3544.6
66 Section 3544 provides 	in pertinent part:
An 	employee 	organization may 	become 	the 	exclusive
representative 	for 	the 	employees 	of an 	appropriate
unit 	for purposes 	of meeting 	and negotiating by
filing a 	request with a public 	school 	employer
alleging 	that 	a majority of 	the 	employees 	in an
appropriate unit wish to 	be 	represented by 	such
organization 	and 	asking 	the public 	school 	employer
to recognize 	it as 	the 	exclusive representative.
The request 	shall 	describe 	the 	grouping of jobs 	or
positions which constitute 	the 	unit 	claimed 	to be
appropriate 	and 	shall 	include 	proof of majority
support 	on the basis 	of current 	dues 	deduction
authorizations 	or 	other 	evidence 	such as 	notarized
membership lists, 	or membership cards, 	or petitions
designating 	the organization as 	the 	exclusive
representative 	of 	the 	employees 	. . . .
18

A 	district 	as 	the 	result 	of receiving a 	showing of majority-
support 	could 	grant voluntary recognition 	to 	an 	employee
organization. 	This 	would clearly undermine 	the majority's 	new
holding 	that not 	all 	per 	diem substitutes 	in the unit have 	the
right 	to vote. 	Any per 	diem substitute would, 	in effect, 	be
casting a vote by 	signature 	rather 	than by ballot, 	even 	though
that 	employee 	does 	not have what 	the majority would 	consider 	a
sufficiently 	substantial 	established 	interest 	in 	employment
relations 	to 	entitle 	them to vote 	in an election.
Equally 	absurd 	is 	that while 	any per 	diem employee's 	signature
can be 	used 	to 	establish 	an 	employee 	organization's 	proof 	of
support, 	because of the voting 	eligibility requirement 	established
by 	the majority, 	the very 	same per 	diem employee would be unable
to vote 	for 	the 	exclusive representative of his/her 	choice. 	This
is 	a 	fundamental 	flaw in 	the 	democratic right 	to vote 	for a
representative or 	in 	fact vote 	for 	"no 	representative," 	the 	latter
right being expressly mandated by 	the Legislature 	in 	the 	statute
when 	it 	declared 	that 	every ballot 	should have 	a place 	for 	"no
representative."77
Even assuming that 	it 	is 	appropriate 	to 	limit voting rights,
care must be 	taken to not 	do 	so 	arbitrarily. 	The majority has
not 	taken 	such care. 	Generally, 	the NLRB 	disenfranchises 	only
employees who have no reasonable 	expectations 	of 	future 	employment.
77 Government 	Code 	section 3544.7(a) 	provides 	in pertinent
part:
. 	. 	. 	There shall be printed on each ballot
the statement: 	"no representation." 	. 	. 	.
19

V
In making such a 	determination, 	the NLRB 	tries 	to 	develop 	a
rational 	basis 	for 	deciding when an employee 	does 	not have 	such
an 	expectancy.8 Despite 	its 	usual 	reverence 	for NLRB policies,
the majority provides no 	such basis 	for 	its 	decision 	that
substitutes 	"on 	the 	current 	substitute 	teacher 	list who 	have
been employed 	for 	at 	least 	10 	percent of 	the pupil 	school 	days
during 	the 	1977-78 	school 	year, 	or 	10 percent 	of the pupil 	school
days 	of 	the 	current 	school 	year 	. . . " 	have 	demonstrated 	a
sufficiently 	greater 	"established 	interest 	in 	employment 	relations'
than 	those who have worked 	less 	than 	that 	amount 	that would
justify 	disenfranchising 	the 	latter 	group 	of 	substitutes. 	The
10 percent 	figure 	is 	totally arbitrary. 	The majority 	is merely
trying 	to 	make 	its 	first 	unreasonable 	decision—that 	of 	giving
negotiating rights 	to 	substitutes—more 	palatable by making 	a
further 	unreasonable 	voting 	eligibility 	requirement.
Finally, 	I must 	conclude 	that we have 	in Jefferson and Palo
Alto 	another manifestation of 	the majority's 	inability 	to 	grasp
the 	significance of 	their 	action 	in respect 	to 	the 	totality 	of
the public 	education 	system of 	this 	state. 	Without 	entering 	into
a broad discussion of efficiency of operation, 	suffice 	it 	to 	say
that 	since 	the Legislature 	saw fit not 	to 	alter 	the 	designation
of per 	diem substitute 	in 	the 	Education 	Code 	and 	continued 	the
right of 	a 	governing board 	to 	hire 	and 	fire per 	diem substitutes
8See, e.g., 	the NLRB's 	discussions 	in Berlitz School of
Languages of America, 	Inc. 	(1977) 	231 NLRB No. 	116 	[96 LRRM 1644];
American Zoetrope Productions, 	Inc. 	(1973) 	207 NLRB 621 	[84 LRRM
1491].
20

~ 	I 	,r 	,r
Raymond J . 	Gonzales, 	Member
21
at will, it would be a contradiction for this Board to now	at will, 	it 	would be 	a 	contradiction 	for 	this 	Board 	to now
extend to per diem substitutes a right that the Legislature	extend 	to 	per 	diem substitutes 	a 	right 	that 	the 	Legislature
could easily have extended to them by eliminating in the EERA	could 	easily have 	extended 	to 	them by 	eliminating 	in 	the 	EERA
those sections of the Education Code referring to per diem	those 	sections 	of 	the 	Education 	Code 	referring 	to 	per 	diem
substitutes which are in conflict with the Act. It is my	substitutes 	which 	are 	in conflict with 	the Act. 	It 	is 	my
conclusion that the Legislature had no intention of extending	conclusion 	that 	the 	Legislature 	had no 	intention 	of 	extending
coverage to per diem substitutes for it could have easily made	coverage 	to 	per 	diem 	substitutes 	for 	it 	could have 	easily made
its intention clear by repealing those management prerogatives	its 	intention 	clear 	by 	repealing 	those 	management 	prerogatives
it granted to school district governing bodies in Education Code	it 	granted 	to 	school 	district 	governing bodies 	in 	Education 	Code
sections 44918, 44953, and 45030. This decision by the majority	sections 	44918, 	44953, 	and 45030 . 	This 	decision by 	the majority
once again flies in the face of the mandate of the statute to	once 	again 	flies 	in 	the 	face 	of 	the mandate 	of 	the 	statute 	to
promote good personnel management and good employee-employer	promote 	good personnel 	management 	and 	good 	employee-employer
relations. Instead, it would lead to chaos by requiring the	relations . 	Instead, 	it 	would 	lead 	to 	chaos 	by requiring 	the
district to locate, identify, and maintain records on such a	district 	to 	locate, 	identify, 	and maintain records 	on 	such a
casual group of employees as per diem substitute teachers.	casual 	group 	of 	employees 	as 	per 	diem substitute 	teachers.
While I must conclude that most districts in this state have	While 	I 	must 	conclude 	that most 	districts 	in 	this 	state 	have
failed to provide per diem substitutes with adequate compensation	failed 	to 	provide 	per 	diem 	substitutes 	with 	adequate 	compensation
for their very important service to education, I cannot see that	for 	their very 	important 	service 	to 	education, 	I 	cannot 	see 	that
granting them collective bargaining rights under the EERA is a	granting 	them 	collective 	bargaining 	rights 	under 	the 	EERA 	is 	a
reasonable remedy.	reasonable 	remedy. 	It would be perhaps more advisable for the	It 	would be 	perhaps 	more 	advisable 	for 	the
Legislature to reexamine the entire nature of substitute teaching	Legislature 	to 	reexamine 	the 	entire 	nature 	of 	substitute 	teaching
in our public schools and correct several discrepancies in a	in our public 	schools 	and 	correct 	several 	discrepancies 	in 	a
single act.	single 	act.
Raymond J. Gonzales, Member
21

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EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
PALO ALTO UNIFIED SCHOOL DISTRICT,
Employer,
and
SUBSTITUTE TEACHERS' SECTION,
PALO ALTO EDUCATORS ASSOCIATION,
Employee Organization.
)
) 	Case No. SF-R-497
PROPOSED DECISION
(9-7-77)
)
)
)
)
)
Appearances: Daniel C. Cassidy, Attorney (Paterson and Taggart) for Palo
Alto Unified School District; Byron Mellberg, Attorney (Mellberg and Stearns)
for Substitute Teachers' Section, Palo Alto Educators Association,
Before David W. Girard, Ad Hoc Hearing Officer.
PROCEDURAL HISTORY
On July 28, 1976, the Substitute Teachers' Section, Palo Alto
Educators Association (hereinafter "STS") filed a request for recognition
with the Governing Board of the Palo Alto Unified School District
(hereinafter "District"). 	The request sought a unit of all substitute
teachers, a unit comprising 180 employees of the District.
On October 1, 1976, the District notified the San Francisco Regional
Office of the Educational Employment Relations Board of its decision to
deny recognition to STS. 	A formal hearing was conducted on Nay 12, 1977.
-1-

- -
ISSUES
The parties stipulated that the following issues are in dispute:
1. Is STS an employee organization within the meaning of Section 3540.l(c)
of the Educational Employment Relations Act (EERA)1?
2. Do substitute teachers 	have negotiating rights under the EERA?
3. Are substitute teachers an appropriate unit?
FINDINGS OF FACT
The Palo Alto Unified School District has an enrollment of approximately
14,000 pupils in kindergarten through the twelfth grade.2 It has thirty
schools including twenty elementary schools, three junior high schools and
three special schools.3 The District employs approximately 925 certificated
personnel and some 455 classified personnel.444
There are approximately 200 substitutes on the District's active employ-
ment list, on the average, over the course of a year. 	At the time of this
hearing, the list included approximately 170 substitutes. 	Some 47 percent
of the substitutes on the District's active roster have employment dating
three years or less; 26 percent have employment dating four to five years; the
remaining substitutes have employment dating more than five years. 	The
average length of time substitutes have maintained placement on the District's
1Government Code Sections 3540 et seq.
2Selected Statistics: 1974-75 California Public Schools, (Sacramento:
California State Department of Education), 1976.
3California Public School Directory, 	(Sacramento: California State Department
of Education), 1975.
4Ratios of California Public School Nonteaching Employees to Classroom
Teachers (Sacramento: California State Department of Education), 1976.
-2-
'

list is three years and three months. 	Turnover on the substitute list
from year to year is between 25 and 30 percent. 	No evidence was presented
regarding frequency of individual assignments of those employees maintaining
placement on the District's roster. 	The total number of substitute
teacher days taught in 1975-76 was 5,132.5.
The District employs substitutes on either a day-to-day or long-term
basis. 	"Long-term" is defined as any assignment continuing for 21 days or
more. 	Long-term substitutes who teach for a full semester receive employ-
ment contracts. 	Day-to-day substitutes and substitutes teaching more than
20 days but less than a semester do not. 	Semester assignments are
infrequent. 	Day-to-day substitutes are not guaranteed any certain number
of days of work each year but, rather, are on-call. 	Substitute 	assignments
are made on a rotational basis from the substitute employment list. 	Regular
teachers can, however, request substitutes byname. 	Subject to substitute
availability such requests are routinely honored. 	Substitutes are free to
refuse an assignment without providing a detailed reason for such refusal.
Substitutes can and do substitute in other districts.
Substitutes do not have tenure rights. 	There are no mandatory
evaluation procedures for "short-term" substitute teachers. 	Substitutes
serving for ten days or more are subject to evaluation by the principal
of the school to which they were assigned. 	Substitutes are not entitled
to a hearing upon termination, but the District as a matter of practice
routinely notifies substitutes prior to eliminating them from the master
list.
The District follows a procedure in the employment of substitutes which
can be briefly described as having four steps. 	First, applicants for the
substitute list are required to complete an application form. 	Second,
-3-

application forms are screened for purposes of selecting interview candidates.
Third, 	interviews are conducted by- the 	assistant superintendent of personnel
services. 	Fourth, upon completion of the interview process, candidates
are selected by the assistant 	superintendent for placement on the substitute
roster or master list. 	This procedure differs from that used in the
employment of regular teachers basically in that substitute appointments
are not submitted to the District's 	Governing Board for final approval
Substitutes are required to hold a valid California teacher's
credential and take an oath of allegiance prior to employment. 	Substitutes
are placed on a salary schedule different from that of regular teachers.
They are not entitled to leave or health benefits. 	Substitutes are subject
to certain payroll deductions required by law such as federal and state
withholding taxes and contributions to the California State Teachers
Retirement System.
In the 1976-77 school year, substitutes working 20 consecutive days
or less are paid at a rate of $42.00 per day. 	Substitutes working 21
consecutive days or more but less than a semester are paid $63.00 per
day. 	The $63.00 rate is calculated from the base step of the regular
teachers' salary schedule. 	Semester substitutes are placed on the
regular teachers' 	salary schedule according to education and experience
and paid in accordance with that placement. 	In no case are semester
substitutes credited with more than 45 units beyond a bachelor degree
and eight years of experience on the salary schedule.
The primary duties and responsibilities of substitute teachers are
to conduct classes in conformance with absent teachers-' 	regular program lesson
plans and instructions. 	Substitutes are expected to maintain classroom
control as well. 	Substitutes are advised to maintain standby lesson plans
-4-

to be used when the. regular teachers 	lesson plans are mislaid or need to be
supplemented.
Substitutes are not required to attend faculty meetings or workshops
but are encouraged to do so. 	Substitutes are not required to supervise
student extracurricular activities but on at least one occasion a substitute
•was asked to volunteer for such duty.
STS is an organization affiliated with the Palo Alto Educators
Association (hereinafter "PAEA"). 	PAEA is the recognized representative of
regular contract teachers for the District. 	STS has representation on the
governing "Representative Council" of PAEA. 	STS members on the Representative
Council are permitted to vote on non-policy matters but are not permitted
to vote on policy matters. 	Policy matters include those items pertaining
to collective negotiations. 	Non-STS PAEA Representative Council members may,
however, vote on all matters affecting substitute teachers.
STS has been in existence for approximately five years. 	It has heretofore
not negotiated with the District. 	It is governed by its own set of by-laws.
Its members elect their own officers. 	It holds regular monthly meetings at
various school sites in the District. 	The official business address of STS
is the same as that of PAEA.
The purpose of STS is "to promote substitute teacher professional growth,
provide substitutes information about the District and promote self-esteem
and camaraderie among substitute teachers." STS has met with school faculties,
held substitute workshops and worked on school bond elections.
There are approximately 60 STS members. 	Membership in STS is open only
to persons accepted for employment as substitute teachers by the District.
STS members are required to pay dues. 	Dues are determined by and paid to PAEA.
There is no salary check-off for STS members.
-5-

DISCUSSION AND CONCLUSIONS
STS is an Employee Organization
The District concedes that STS is an "organization" according to common
dictionary usage but argues that STS need not and should not be found to be an
"enployee organization" within the meaning of the Educational Employment
Relations Act (EERA). Its argument is bottomed on the contention that STS is a
mere "puppet" of the parent affiliate PAEA. It is maintained that if STS is
found to be an employee organization, STS will be patently unable to meet its
obligation to meet and negotiate with the District in good faith.
The District's argument rests upon four bases: 	(1) STS does not
have the requisite power to establish negotiating priorities or reach
agreement; 	(2) STS cannot fairly represent its members; 	(3) there is an
inherent conflict of interest between the parent PAEA and its affiliate
STS, and finally (4) STS cannot ultimately be held accountable by the
District for any legal and contractual responsibilities which it attempts
to enter.
STS takes the position that two statutory requirements must be met in
order for it to be included under the provisions of the EERA as an employee
organization. 	First, the existence of an "organization" must be established.
Secondly, a defined organization must "include employees of a public school
employer."
On the first point, STS argues that the EERA is clear and unambiguous
in its definition of an employee organization and further that an expansive
statutory interpretation is to be preferred in any event. 	STS, it is proffered,
has all the necessary indicia of such a statutorily defined organization.
-6-

STS points out that, though it is affiliated with the larger PAEA, such
affiliation cannot be construed as tantamount to integration. 	On the
second point, STS contends that its members are employees of a public
school employer. 	Such contention is based on the relationship between
the District and substitutes whereby the substitutes "sell...services for a
wage or salary and undertake to perform a given function under supervision"
to the District, any lack of regularity of that relationship notwithstanding.
The definition of an "employee organization" is provided in Section
3540.l(d) of the EERA.;
"Enployee organization means any organization which includes
employees of a public school employer and which has as one of its
primary purposes representing such employees in their relations
with that public school employer."
In order to find that an employee organization exists under the
EERA., three requirements must be satisfied: 	(1) it must be an organization;
(2) it must include employees of a public school; and (3) one of the
primary purposes of the organization must be providing representation of
employees in relations with the public school enployee
Rules of statutory construction require that : 	"[s]tatutes must be given
a fair and reasonable interpretation with due regard to the language used
and the purpose sought to be accomplished. 	The language of an enactment
controls the construction, though extraneous aids may be resorted to where
the language is ambiguous and the legislative intent not clearly discernible."55
5 45 Cal. Jur. 2d 623-624. 	See also People v. Rodriguez (1963), 222 Cal. App. 2d 221
-7-

The term "enployee organization" is not ambiguous by definition or
context. 	Clearly an ordinary dictionary meaning of the word organization
would appear to be quite adequate. 	Had the Legislature intended a more
stringent requirement for EERA coverage—a requirement that the petitioner
be a legal entity, for example—it would have so provided. 	Here STS easily
falls within the dictionary definition of organization. 	It has been in
existence for five years, it has its own by-laws, it is led by duly elected
office holders and it holds meetings on a regular basis. 	In fact, the
District concedes in its post-hearing brief that STS is an organization
within the dictionary meaning of that word. 	The District nevertheless
urges that STS is not an organization within the meaning of the EERA.
While the precise legal theory of the District's claim goes unstated
the District apparently seeks to place its arguments on public policy
grounds. 	The District merely points out several potential public policy
problems and asks that the Board look beyond the plain meaning of the
statutory language.666
A finding that STS is an employee organization within the meaning of the
EERA does no injustice to common sense or injury to the underlying purpose of
the legislation taken as a whole. 	It is the stated purpose of the EERA
to "...recogniz[e] the right of public school employees to join organizations
of their own choice [and] ...to be represented by such organizations."'
6Holy Trinity Church v. U.S., (1892), 143 U.S. 457; See also Silver v. Brownt
(1966), 63 Cal 2d 841, 48 Cal Rptr 609. 	"The literal meaning of the words
of a statute may be disregarded to avoid absurd results or to give effect
to manifest purposes that, in light of the statutes legislative history
appear from its provisions considered as a whole."
7Government Code Section 3540.
- 8 -

An expansive interpretation of the meaning of organization can be said to
be favored given a legislative intent having such wide parameters.8
Nevertheless, the District claims that due to the nature of STS'
affiliation with the parent PAEA, STS' organizational status is vitiated.
Ordinarily, affiliation has no bearing on organizational status. 	In
fact, it is not uncommon practice for a single labor organization to act as
the exclusive negotiating agent of more than one unit of a single employer.
So here—as under the NLRA—for example, if PAEA sought to represent
substitute teachers there is no reason why it could not qualify as an organiza-
tion within the meaning of the EERA and seek to do so. 	If PAEA can there-
fore directly seek to represent substitutes, there would appear to be no
reason why its affiliate STS could not. 	Mere affiliation does not
otherwise defeat organizational status under the EERA.
There is no California precedent for a claim that something more than
mere affiliation will defeat organizational status. 	There have been such
claims under the NLRA,99however, that organizational status should not be
granted on the basis that an organization was (1) a "front"; 	(2)was
receiving "administrative assistance"; or (3) was incapable of proper
representation.
8See NLRB v. Ampex Corp., (CA. 7 1971), 442 F. 2d 82, which is representative of the
federal courts 	view on such interpretation.
99 see
-9-
u
5ee Los Angeles Unified School District, EERB Decision No. 5, November 24,
1976, footnote #1, where the Board noted that, "While we are not bound by
NLRB decisions we will take cognizance of them where appropriate." 	It
should be noted that the language of the NLRA differs from that of the EERA.
NLRA Section 2(5) has been defined as including "...any organization of
any kind, or any agency or employee representation committee or plan..."
NLRB v. Cabot Carbon Co., (1959), 360 U.S. 203, 44 LRRM 2204; The Developing
Labor Law, p. 136 (C.Mbrris ed. 1971).
______
-9-

10
In General Dynamics Corp.,10 the employer claimed that the employee
group was a "paper organization" under the direct domination and
control of the international union and thus a "front." 	The NLRB stated:
"Petitioner is a labor organization within the meaning
of the Act, regardless of whether it is fronting for the
international union—an issue which may go to mis-
representation of the true bargaining representative but
has little to do with Petitioner's existence or status as
a labor organization."
Moreover, in Colonial Williamsburg Foundation,
17 the NLRB rejected a
contention that a petitioning local was not a labor organization because
(1) it was receiving "administrative assistance" from the international
union; 	(2) the filing of the petition and all other matters were handled
by an organizer from the international union; and (3) the local had no
regular officers. 	In the instant case, STS filed its own petition and has
its own officers. 	Other than the fact that STS has the same business address
as PAEA there is no evidence presented that PAEA was instrumental in
organizing substitutes.
Despite the difference in statutory language between the NLRA and the
EERA in defining employee organization, the NLRB view that "fronting" or
"administrative assistance" has little to do with organizational status should
be followed. 	There is little to commend a rule that organizational status
be predicated according to some formula of degree of affiliation. 	Not only
would standards be difficult to establish but such a rule would also serve
to erode the right of employees to select the organization of their
choice for purposes of representation.
10213 NLRB 851 	(1974).
11224 	NLRB 115 (1976).
-10-
,,

The District's public policy argument additionally embraces the
view that if STS is found to be an employee organization within the meaning
of the EERA, it will be unable to act responsibly toward either the District
or its members. 	The record is barren of any evidence to support such a
claim and it is not patent or necessarily inferred from mere affiliation.
Nevertheless, 	it should be noted that the NLRB in Alto Plastics12
stated that:
"For, it must be remembered that, initially, the Board merely provides
the machinery whereby the desires of the employees may be ascertained
and the employees may select a 	'good' 	labor organization, a 	'bad' 	labor
organization, or no labor organization, it being presupposed that
employees will intelligently exercise their right to select their
bargaining representative..."
Clearly the NLRB has rejected the notion that organizational status
be placed on a footing of representational effectiveness. 	The wisdom of such
an approach makes sense in this case as well. 	There are more appropriate
alternative means of dealing with problems of representational effectiveness.
The employer or an individual could, for example, bring an unfair practice
charge should it be felt that the employee organization is not meeting its
statutory 	obligations.13 Though the spectre of representational impropriety
can be raised, it should not be done in the context of organizational status
and it should never be presumed.14	14
12136 NLRB 850 at p.851-852 (1962); See also Hotel Properties	. . 	, 194 NLRB 139 (1972).
13
Government Code Section 3543.6.
14See Morris, Developing Labor Law Supp. 1971-75, at p. 73 where it is said,
"Consistent with its decision in Alto Plastic Mfg. Corp., the Board has
continued to refuse to inquire into the internal affairs of a union in
determining whether it is a statutory 'labor organization.' 	It chooses
instead to police the union's statutory obligation after certification."
-11-

For the above stated reasons, the District's claim on public policy
grounds must fail.
Next it is found that STS includes employees of the District within
its membership ranks. 	While the discussion, infra, concludes that substitutes
are "employees" it should be noted that Section 3540.l(d) only requires that
to be an employee organization it must "...include employees." 	A finding
that some members of the organization are not employees would not defeat
STS' standing as an employee organization.
The third and final statutory requirement necessary to find that STS
is an organization within the meaning of the EERA is to determine whether
one of its primary purposes is to represent employees in their relations with
the public school employer.
15
In Roytype15 , the NLRB found the requisite purpose of a labor
organization existed, saying:
"The applicable provision of Section 2(5) of the Act defines a
labor organization as 'any organization of any kind, or any agency
or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part,
of dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work.'
Clearly, Petitioner exists for statutory purposes, although its
purposes have not yet come to fruition; and employees have
participated in its organization and subsequent activities, although
the latter have been limited by the organization's lack of representation
rights. 	Accordingly, we find that Petitioner is a labor organiza-
tion 	within the meaning of the Act."
Here STS has not negotiated with the District but it seeks to do so.
To that end it has requested recognition as an exclusive representative. 	As
in Roytype, the requisite purpose should be found to exist despite the fact
that it has not yet come to fruition.
15199 NLRB 354 (1972).
-12-

Substitutes Have Negotiating Rights	. ..
The District takes the position that substitutes do not have
negotiating rights since they are not "employees" within the meaning of
the EERA. 	It is first pointed out that substitutes differ from regular
employees in statute and in fact. 	The District, further, takes the
position that mere placement on a substitute list does not in any event
necessarily constitute employment. 	The District argues 	that coverage
under the EERA does not automatically extend to all employees and suggests
that coverage only be provided to those persons meeting the burden of a
two-pronged test of employment continuity. 	First, substitutes must show
that as individuals they are used "frequently" by the District. 	Secondly,
they must show that they are used on a "predictably regular basis."
Presumably, persons not able to meet the test should be considered
"casual" employees and as such be excluded from coverage of the EERA.
STS 	first points out that exclusions from the EERA are not favored and
thus a presumption favors coverage. 	It contends that while there is
precedent for identifying certain employees as casual, it is inapposite for
purposes of EERA coverage here. 	Rather, it is argued that casual status
possibly bears on exclusion from a unit but not exclusion from the protection
of the EERA in its entirety. 	It is advanced, arguendo, that even if a showing
of casual employment status can defeat statutory coverage in some instances
it should not do so here. 	STS contends that the extant substantial
employment interest of substitutes here assures the occurrence of meaningful
negotiations. 	Finally, STS argues that while substitutes may work in
more than one district, this should not defeat the right to negotiate
in the Palo Alto Unified District because multiple district substituting
does not undermine the interest of substitutes in terms and conditions of
their employment in Palo Alto.
-13-

Substitute enployee status is an issue of first impression in
California. 	Consequently, it is useful and instructive to begin by
reviewing precedent established at the federal level under the NLRA as well
as decisions in other states. 	In doing so two distinct approaches tend to
emerge. 	First, under the NLRA employees are distinguished from non-employees
along traditional common-law standards governing the relationship between
employer and employee.16 The NLRB has found that the requisite employment
relationship did not exist because of explicit and implied statutory
exclusions,17 retiree status, 	and student 	status19 for example. 	But the
NLRB has never found that a person failed to qualify as an enployee
due to the casual nature of the person's employment relationship with the
2020employer. 	Instead, 	the NLRB has simply excluded such employees from the
unit. 	Although a group remains that is deemed "fringe" or "residual,"
they are nevertheless employees under the NLRA.
1 6 In C. W. Post Center of Long Island University, 	(1971) 189 NLRB 904
university faculty members were held to be employees since they had
the "usual incidents" of an enployee relationship with the University
employer.
17Bell Aerospace Co. Div., 	(1974) 416 U.S. 267, 85 LRRM 2945.
18Tusculum 	College, 	(1972) 199 NLRB 28.
19Evans Broadcasting Corp,, 	(1969) 179 NLRB 781.
2 0 All Work Inc., 	(1971) 193 NLRB 918, 78 LRRM 1401. 	The NLRB found
temporary unskilled workers hired on a voluntary referral system to be
employees despite the fact that the employer did not exercise control of
many aspects of their work including supervision.
-14-

In a recent case dealing with substitute teachers, the Oregon Employment
Relations Board followed the approach taken by the NLRB.21 The Board
found substitute teachers to be employees within the meaning of the Oregon
statute. 	In reaching its decision, the Board said:
"There is no valid issue about whether the substitute teachers
are 'public employees' when they are in fact hired, since the statutory
definition does not exclude them, and when hired, they are then on the
public payroll. 	The Act gives 'public employees' the 'right' to
engage in labor relations. 	Any prohibition or exclusion is required
to be plainly stated. 	Those excluded by the Act are plainly stated.
Others are included."
Both the NLRB and the Oregon Board view casual status as a unit
question, not one of employment status—no matter how casual that status
might be. 	New York, on the other hand, takes an opposite view. 	In
East Ramapo Central School District No. 222
, 	the Director of Public
Employment Practices and Representation concluded that per diem substitutes
were not "employees" covered under the Taylor Law based upon New York
precedent, saying:
"This Board has previously considered and rejected the argument that
the definition of 'public employee' is all inclusive. 	We ruled
that some persons holding positions of seasonal employment with New
York State might not be covered by the Taylor Law if the season was
too short, too few returned from year to year, or they worked too
few hours. 	We said, 	'In some instances, the employment relationship
is too ephemeral to carry with it Taylor Law rights and obligations.23	,7
21Eugene 	Substitute Teachers Organization v. Eugene School District, 	(1976)
1 PECBR 716.
22PERB Case No. C-0956, paragraph 6-4033, 3 CCH Labor Law Rptr, State
Laws, paragraph 49, 999B.49 (1973).
7	 23See In the Matter of State of New York (Department of Correctional
Services), 6 PERB 3067, 3069-70 (1973), for a discussion of the
argument that "public employee" status is not all inclusive.
-15-

In the East Ramapo case, the director pointed out that:
"Whether per diem employment is inherently 'ephemeral' is a question
I need not now decide, for I find that the employment relationship
of the per diem substitutes involved in this proceeding is of a
casual or temporary nature." (emphasis added)
It is clear, therefore, that East Ramapo is of limited precedential
value.
First, of course, the EERB need not follow New York and, secondly,
East Ramapo is limited by the facts. 	In East Ramapo, as well as here,
there were master lists of employees. 	But there existed in East Ramap	.. 	o
a more tenuous employment relationship than here. 	In East Ramapo it was
found that 38 to 40 percent of the substitutes had a de minimus employment
relationship, working no more than 10 days of the 	minimum 	180-day
school year. 	Further, at least 70 percent of the proposed unit saw
service for less than a quarter of the year. 	Here there was no evidence
of such a de minimus employment relationship. 	In fact, substitutes on the
average worked approximately 30 days each.
In New York, the court also placed great reliance on the element of
continuity from year to year and applied a standard of 60 percent rate
of return, as had been established for seasonal workers. 	Here there is no
such standard, but even if there were, there is greater than a 70 percent
continuity of substitute employees from 1976 to 1977.
Substitutes have a legitimate concern and interest in their employment
relationship. 	They are told when to be at work, whether to have lesson plans,
what they will be paid and if they will be evaluated. 	They have a right
to have those interests 	represented under the EERA..
-16-

On the issue of enployee status the line of reasoning articulated
by the NLRB and the Oregon Board should be followed here. 	There is no
reason to ignore statutory guidelines and read in enployee exclusions
beyond those specifically enumerated.24	24 The EERA should be read broadly
in defining enployee status in light of the legislative purpose with
which it was enacted.
Substitutes Constitute an Appropriate Unit
The District argues that the key to deciding the issue of unit
appropriateness where substitutes are concerned is "expectancy of future
employment." 	Apparently the District contends that unless there is a
showing of a substantial expectancy of future employment, 	substitutes
are not entitled to inclusion in the unit. 	To find otherwise, the argument
continues, would precipitate at least three problems: 	(1) unit instability
(substitutes, lacking a future with the District, would opt for short-term
negotiating gains), (2) indeterminate substitute status in that substitutes
would be difficult to identify for purposes of voting and representation
rights, and (3) District operational efficiency would be reduced because
it would be onerous if not futile to establish and maintain substitute
check-off, release time and collective negotiating contract provisions.
The impact of the District's position is that, at least in this case,
there can be no unit established which is an appropriate unit.
24Government Code Section 3540.l(j) provides that a "'public school enployee'
or 'enployee' means any person employed by any public school employer
except persons elected by popular vote, persons appointed by the
Governor of this state, management employees and confidential employees."
-17-

STS takes the position that a unit determination inquiry should focus on the
"community of interest" between and among substitutes. 	STS argues that the
community of interest standard has been met by all persons on the District's
substitute list as evidenced by examining the following indicia: 	(1) qualifica-
tions, training and skills, 	(2) manner of assignment, 	(3) amount and method
of pay, and (4) job function. 	While STS argues that all persons on the
District's substitute list should be included in the unit, nevertheless
only those who have worked 10 days in the preceding 12 school months or one
day in the preceding 30 days should be eligible to vote.
The standard to be applied in deciding unit determination issues is now
fairly well settled under the EERA. 	Government Code Section 3545(a) provides
that:
"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 Board has also considered other factors in determining issues
involving community of interest. 	In determining that long-term substitutes.
should not be included in a unit with regular classroom teachers, 	the
25
Board identified the criteria of "expectancy of future employment,"
" job security and tenure," "leave," "fringe benefits " and "employment
contracts."26 Also considered in community of interest cases have been
job description, pay schedule, who selects employees for employment,
commonness of purpose and goals, 	length of work day and work year,
inter alia.2727
25Petaluma City Elementary and High School District, EERB Decision No. 9,
February 22, 1977; Belmont Elementary School District, EERB Decision No. 7,
December 30, 1976.
26 Lompoc unified School District, EERB Decision No. 13, March 17, 1977.
27Grossmont Union High School District, EERB Decision No. 11, March 9, 1977.
-18-

The nub of the issue at hand is to determine whether such differences
warrant concluding that all substitutes do not share a similar community
of interest. 	Again NLRB precedent provides some guidelines. 	Generally the
issue of community of interest relative to "part-time," "day-to-day" and
"on-call" workers has come up in the context of whether or not such
employees should be included in a particular negotiating unit or
excluded as "casual employees."
The notion of "casual employee status" is a concept long employed in
unit determination cases decided by the NLRB. 	Its origin is found in
cases interpreting the NLRA rather than in the language of the statute
itself. 	It is reasoned that casual employees do not share a community of
interest with other employees. 	The NLRB determines the existence of casual
status on a case-by-case basis, balancing such factors as expectation of
continued employment, work patterns and history, inter alia.
The NLRB has held employees to be casual if their employment is
"intermittent,"28 "sporadic,"29 "too few hours per week,"30 and if they
have no demonstrable expectation of being rehired,31
28Murphy G.C. Co., (1968) 1171 NLRB 45; 68 LRRM 1108.
29Glynn Campbell, dba Piggly Wiggly El Dorado Co., (1965) 154 NLRB No. 32,
59 LRRM 1759.
30NLRB v. Greenfield Components Corp., (CA 1 1963), 53 LRRM 2145, enforcing
49 LRRM 1532:
31Maine Sugar Industries, Inc., (1968) 169 NLRB 186, 67 LRRM 1142.
In finding casual status the NLRB has also considered such factors as
attending school as an indication of employment expectancy, manner of pay,
manner of hire and whether the employee is employed elsewhere.32 32
32George Groh and Sons, (CA 10, 1964) 329 F 2d 265, 55 LRRM 2729; enforcing
52" 	LRRM 1424; Bowman Transportation, op. cit.; Georgia Highway
Express (1965) 150 NLRB 164y.
-19-

In some cases if employees are found not to be "casual" under the NLRA
they are considered "regular part-time employees" and included in the unit
along with regular employees.~JJ
In finding part-time status as contrasted with casual status,
the NLRB has also found that turnover was not determinative where work
is not irregular, intermittent, sporadic or occasional;,;54 that a unit
included "on-call" employees who averaged four hours work or more per
week;35 that lack of fringe benefits alone will not be cause for
exclusion from the 	unit;36 and that expectancy of recall standing alone will
not defeat inclusion in the 	unit.37 The NLRB in deciding between casual
or part-time status does not focus on one particular factor. 	Rather it
balances a number of factors and decides on the basis of the case as a
whole. 	It is clear, however, that a major factor in NLRB reasoning is
regularity and continuity of employment. 38
33See generally: Baumer Foods. . , Inc., (1971) 190 NLRB 690, 77 LRRM 1270;
Knapp-Scherril Co., (1972) 196 NLRB 1072, 80 LRRM 1467; William J. Keller,
(1972) 198 NLRB 1144, 81 LRRM 1048; NLRB v. Broyhill Co.(CA 8 1976),
91 LRRM 2109; Perm Truck Painting and Lettering Corp. 	(1974)
215 NLRB 147, 88 LRRM 1092; Sears, Roebuck and Co., (1971) 193 NLRB 330,
78 LRRM 1249; Stockham Valve and Fittings 	(1976) 222 NLRB No. 19, 91 LRRM
1263; Daniel Ornamental Co. (1972) 195 NLRB 334, 79 LRRM 1343.
3 4 A.S. Able Co. (1970), 185 NLRB 144; W. Horace Williams Co. (1961) 130 NLRB 223.
35O'Niel, M. Co., (1969) 175 NLRB 514.
36Quigly Industries (1969) 180 NLRB 487.
37Westchester Plastics of Ohio (1968) 69 LRRM 2507.
38Tol Pac Inc., 	(1960) 128 NLRB 1439.
-20-

It should also be mentioned that, following the NLRB approach, the
Pennsylvania Labor Relations Board in School District of Radnor Township3939
decided that certain bus drivers were not part of the regular bus driver
unit due to the fact that they did not work full-time. 	Consequently such
drivers were put in a separate part-time unit based on community of
interest. 	The Pennsylvania Board further split off some employees from
the part-time unit due to the casual nature of their employment.
It can be seen that the case-by-case approach followed by the NLRB is
not a model of clarity. 	The balancing act which takes into consideration a
variety of competing factors therefore presents no small difficulty in
ascertaining touchstones and principles useful in application here. 	However,
from a review of the NLRB and state cases dealing with casual status two
threads are discernible. 	First there are those cases that deal with the issue
of separating or carving out a part-time work force from a regular work force,
as in the retail trade. 	If the part-timers are found to be casual they are
carved out. 	If not, they are called "regular part-timers" and included in
the full-time unit. 	The NLRB decides each case by balancing the factors
mentioned above. There is a second line of cases which also emerges in
which casual status comes up but in a somewhat different context. 	In these
cases there is not a question of splitting off, or carving out, employees
from a full-time unit. 	Rather casual status is used as a general broadside
to question the integrity of intermittent employees as a whole.
39Case No. PENA-R-5375E, January 13, 1975.
-21-

That is, do the employees in the unit sought have a sufficient community
of interest among them to comprise a cohesive work force? 	The issue here is
not so much one of division; it is one of diffusion. 	Casual status of
this genre typically arises in the day labor or construction worker cases.
Under this second line of cases the NLRB has shown a greater
reluctance to identify employees as casual. 	There would appear to be two
reasons for such a result. 	First, where all employees in the unit sought
are intermittent, it is difficult to eliminate some as casual based
upon the amount of work performed. 	It is not so difficult, however,
where the issue is merely one of splitting off certain employees from a
full-time unit. 	Secondly and in the same vein, drawing lines in such
cases could lead to excessive unit fragmentation.
In the instant fact situation there are elements of each line of NLRB
cases. 	There is a regular work force with which to compare substitutes as in
the retail trade cases. 	Also substitutes perform essentially the same tasks
as the regular work force. 	On the other hand, substitutes are not seeking
to be part of the regular unit. 	They are seeking a separate unit. 	Thus
a finding of casual status goes to the cohesiveness of the substitutes as
a whole. 	This is similar to the second line of NLRB cases dealing with
day labor. 	The issue here is whether any or all substitutes share a
community of interest among themselves.
Any distinction to be made between substitute teachers should be made
along the line of NLRB cases dealing with day labor or the construction
industry. 	Those cases do not involve community of interest between part-
time and full-time employees. 	Rather they dealt with community of interest
among and between intermittently scheduled workers. 	As in such cases
-22-

41	41
a line should not be drawn differentiating some employees as casual unless
there are reasonable standards by which to do so.
The Oregon PERB 	has recently dealt with the precise question faced
here. 	In deciding whether or not substitute teachers are so casual as to
have a community of interest that Board took the view that:
"It is not logical to draw an artificial line somewhere between the
one-half day per year hired substitute teacher and the 182 days per
year hired substitute, where each has some reasonable expectation of
reemployment. 	Any division based on number of days among those
actually hired is wholly arbitrary. 	To say that the two-day per year
substitute has a community of interest with others who are teaching, while
the one-day or one and one-half day per year substitute does not,
cannot be supported."
"The only real yardstick should be whether or not substitute teachers
have a reasonable claim to expectation of reemployment."40
In the Oregon case there was no evidence which would have allowed the
Board to distinguish between substitutes.
In some cases it may be possible to establish that a differing community
of interest exists between substitutes. 	For example there might be a
standard where there can be little argument that only a de minimus
expectancy of employment exists. 	Substitutes falling below such a standard
could be considered casual and not within the unit. 	A number of possible
lines of demarcation suggest themselves. 	Twenty-one days of work could be the
cutoff since the District provides a different level of pay for substitutes
serving 21 days or more. 	The only problem, however, is that such payment
applies only to substitutes employed for consecutive days in the same
assignment. 	Another possibility is to select average days worked.
-23-
41	41
40Eugene 	Substitute Teachers Organization, 1 PECBR 716, August 1976.
41 In the Matter of the Employees of School District of Philadelphia,
5 PPER 113, December 11, 1974, where "median" rather than average was
used as a line of separation.

But such lines, as is argued in the Oregon case, are unquestionably arbitrary
In the instant case there was no evidence presented which compels a line to be
drawn between categories of substitutes. 	Certainly it is not necessary to
shy away from drawing lines when there is some supporting rationale. 	Here
there is none.
The cogency of deciding casual status on a case-by-case basis and concluding
that all substitutes should be placed in the unit is perhaps best demonstrated
by Fresno Auto Auction.42	42In that case, the NLRB included all "drivers" in
a unit. 	Drivers were recruited by telephone from a list of drivers who had
previously worked or applied. 	A majority worked more or less regularly but
about one-third worked less than three weeks in the previous six months.
Drivers were on-call as needed. 	The number of hours worked ranged from
one or two hours per week to 35. They were paid hourly and received no fringe
benefits, 	Many 	held regular full-time jobs elsewhere. 	The NLRB did not
distinguish between the drivers because it balanced work "pattern" with
other considerations saying:
"The record clearly demonstrates that, while the number and
identity of the drivers, deliverymen and detail shop employees
fluctuates from week to week, a substantial number of the group
have reported and worked fairly regularly over a period of several
months preceding the hearing..."
"In determining the relative permanence or regularity of the employ-
ment in the proposed unit, we believe this fact outweighs those
considerations having to do with the individual's freedom to determine
his own work schedule or to report for work intermittently.
Similarly, the fact that they are carried on the payroll as part-time
workers does not, in our view, alter the character of the work force
as a cohesive group of individuals with a strong mutual interest in
their working 	conditions."43
42167 NLRB 878 (1967).
4 3 Id. at 879.
-24-
-

Simply put, Fresno Auto Auction stands for the proposition that
employees, no matter how few days they work, 	should not be distinguished
from other employees solely on that basis.
From the findings of fact it must be concluded that substitute
teachers have a separate community of interest. 	They are hired, evaluated,
paid and have standards of performance which are generally the same. 	They
have no guarantee of employment, have no tenure rights and are offered no
written contracts.
Furthermore, 	given the facts that on the average employee substitutes
serve approximately five weeks per annum, 	the low turnover of persons on
the substitute list, 	and the similarity of working conditions among
substitutes, no arbitrary division between substitutes with the view to
excluding some as "casual" is justified.
Another criterion to be considered by the EERA in unit determination
decisions is the extent to which members of the unit belong to the same
employee organization. 	STS membership rolls contain approximately 30 percent
of the District's substitutes. 	It is logical to infer that individual
membership in STS is in part determined by a substitute's expectancy of
future employment with the employer. 	This, however, does not outweigh the
community of interest shared by all substitutes and require anything other
than an all exclusive unit. 	No evidence was offered regarding past practices
or efficiency of operations in the context of community of interest and thus
such factors play no part in the Proposed Decision.
-25-

Eligibility to Vote
Although all of the employees in a unit are affected by negotiations,
,,
under NLRA 	precedent,44 voter eligibility has been limited to those
employees with a substantial employment interest based on having worked a
sufficient period of time to reflect a continuing interest in working
conditions and the outcome of the election.
Those restricted from voting are deemed not to have the same
significant interest in selecting an exclusive representative as the
other employees in the unit. 	Eligibility herein is determined by balancing
a number of factors such as length of time, 	regularity and currency of
employment.
PROPOSED DECISION
It is the Proposed Decision that:
1. 	The following unit is appropriate for meeting and negotiating,
provided an employee organization becomes the exclusive representative:
A unit of all substitute teachers on the most current
substitute teaching list who have worked in the
District during the previous or current school year.
It is further proposed that members of the unit are eligible to vote
in an election for exclusive representative if:
(a) 	They are on the list as of the established election cut-off
date, and
(b) 	Have continuously been on the substitute teaching list for
three, consecutive semesters (excluding summer sessions) including the one
in which the election is held, and
(c) 	Have actually worked in any two of the three consecutive
semesters listed.
4 4 D a n i e l Ornamental Iron Co., (1972) 195 NLRB 334; Julliard School, (1974)
208 NLRB 153.
-26-

2. 	STS is an employee organization within the meaning of the EERA .
3.. Substitute teachers on the most current substitute teaching list whowho
have worked in the District during the previous or current school year aree
found to be employees within the meaning of the EERA.
3 	Substitute teachers on the most current substitute teaching list
have worked in the District during the previous or current school year ar
found to be employees within the meaning of the EERA .
The parties have seven 	(7) 	calendar days from the receipt of this	The parties have seven (7) calendar days from the receipt of this
Proposed Decision in which to file exceptions in accordance with Section 33380
of the Board's Rules and Regulations. 	If no party files timely exceptions,
this Proposed Decision will become final on September 19, 1977, and a Notice
of Decision will issue from the Board. .
Proposed Decision in which to file exceptions in accordance with Section 33380
this Proposed Decision will become final on September 19, 	1977, 	and a Notice
of Decision will issue from the Board
Within ten 	(10 ) workdays after the employer posts the Notice of Decision,	Within ten (10) workdays after the employer posts the Notice of Decision,
the employee organization shall demonstrate to the Regional Director at
least 30 percent support in the above unit. The Regional Director shallll
conduct an election at the end of the posting period if the employer does
not grant voluntary recognition. .
the employee organization shall demonstrate to the Regional Director at
least 30 percent support in the above unit. 	The Regional Director sha
conduct an election at the end of the posting period if the employer does
not grant voluntary recogn i tion
Dated: 	September 7, 	1977.
I David w. 	Girard
Ad Hoc Hearing Officer
-27-
2. STS is an employee organization within the meaning of the EERA.
of the Board's Rules and Regulations. If no party files timely exceptions,
Dated: September 7, 1977.
David W. Girard
Ad Hoc Hearing Officer
-27-

J
_____________ )
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
JEFFERSON UNION HIGH SCHOOL DISTRICT,
Employer,
- and -
AMERICAN FEDERATION OF TEACHERS,
LOCAL 1481, AFL-CIO,
Employee Organization.
)
)
)
)
) 	CASE NO. 	SF-R-550
)
)
)
)
Appearances: 	George Camerlengo, Attorney (San Mateo District Attorney's
Office) for the Jefferson Union High School District; Stewart Weinberg,
Attorney (Van Bourg} Allen, Weinberg and Roger) for American Federation
of Teachers, Local 1481, AFL-CIO.
Before Gerald A. Becker, Hearing Officer.
PROCEDURAL HISTORY
On March 24, 1977, the American Federation of Teachers, Local 1481,
AFL-CIO (hereinafter "Federation"), filed with the Jefferson Union High
School District (hereinafter "District") a request for recognition as
the exclusive representative of a unit of all certificated per diem
substitutes in the District.
On April 21, 1977, the District filed with the EERB its Employer
Decision in which it questioned the appropriateness of the unit requested
by the Federation. 	A unit determination hearing was conducted on
June 6, 1977.
FINDINGS OF FACT
The District has a student enrollment of approximately 7,604 in six
high 	schools.1 The negotiating unit of "regular" certificated employees,
- 1 -
1l 1977 California Public School Directory, at 467.

including substitutes employed for a semester or more on contract, numbers
approximately 400. 	The number of teachers on the per diem substitute
teaching list is approximately 75.
Applicants for per diem substitute jobs are interviewed by the District.
The same criteria used in hiring probationary teachers are applied, but the
preemployment interview process is not as rigorous. 	The District governing
board takes official action to place successful applicants on the substitute
list. 	The list, as periodically updated, is distributed to the six high
schools. 	Substitute arrangments are made at the individual school site.
Many times the regular teacher requests a particular substitute to serve
during his or her absence.
Substitutes generally perform the same teaching duties as the absent
regular teacher including assigning homework, 	giving examinations and
grading the students. 	However, 	they are not expected to perform allied,
non-teaching duties such as supervision of games, dances, or student
activities. 	Some schools have substitute teacher handbooks. 	Although
substitutes are not formally evaluated, school administrators, department
heads or the absent teacher report on a substitute's performance. 	This
report influences the decision to use the substitute again at the parti-
cular school. 	Quite a few new probationary teachers in the District have
been hired from the substitute teacher ranks, but substitute teachers as
such have no guarantee of future employment. 	See Education Code §44953.
Per diem substitute teachers receive $7.50 an hour or $37.50 for a
full day (five periods). 	These rates reflect the first raise in about
ten years and are contained in the current negotiated agreement between the
District and the Federation for the "regular" certificated negotiated unit.2
2Under the current agreement, regular teachers may receive extra pay for
substituting during their preparation periods. 	When the budgeted funds for
substitutes run out, regular teachers and administrators substitute free of
charge on a rotating basis.
- 2 -

After 20 consecutive days of substituting for one absent teacher, the
substitute is classified "long term" and receives retroactive, pro-rated
pay based on the entry level probationary salary step on the District's
salary schedule.3 Per diem substitutes receive pro rata sick leave,
workers compensation coverage, and coverage under the District's blanket
liability policy. 	They do not receive the remaining benefits given to
regular employees and substitutes on contract.
Of the approximately 75 persons on the substitute teaching list,
about 20 to 25 form a "core" who work for the District from year to year
and generally serve more than 50 percent of a school year. 	The remainder of
the substitute list is subject to fluctuation and change. 	Evidence
was presented that during the 1976-77 school year there were 41 additions
to, and 26 deletions from, the list. 	Some of these persons work as little
as once a month on an irregular basis. 	A person may be deleted from the
substitute list for one of two reasons: 	upon the person's request, or upon
the District's discovery that the person either has another job or has left
the area. 	Some of the persons on the substitute teaching list also are on
substitute lists in other school districts.
The only specific evidence as to problems which may arise in negoti-
ations with per diem substitutes was the deputy superintendent's testimony
that the District is not wealthy and that surplus monies usually go into
regular teachers' salaries and benefits, the implication being that
The parties agreed that both "per diem" and "long-term" substitutes
are included in the Federation's proposed unit. 	In this Proposed Decision,
unless the context indicates otherwise, the terms "per diem substitute"
or "substitute" are used interchangeably to include both per diem and
long term substitutes.
- 3 -

negotiations with substitutes will 	impose a greater financial burden on
the District. 	The deputy superintendent also testified that based on
past experience with teachers' 	absences the District would be able to
project the cost of a salary increase proposal made on behalf of per diem
substitute teachers.
Per diem substitutes have utilized 	the District's grievance procedure.
In the past the Federation has brought grievances on behalf of substitutes
without contracts; 	three such grievances were brought in the 1976-7 7 school
year.
ISSUES
1. 	Are per diem substitute employees entitled to exclusive representation
under the EERA?
a. 	Are per diem substitute teachers without contracts "employees"
within the meaning of Government Code 	§3540.l(j)?
b. 	Is a unit of per diem substitute teachers appropriate for
negotiating under the EERA?
2. 	What is the appropriate composition of a unit of per diem substitute
teachers?
3. 	Which per diem substitutes are eligible to vote in an election for an
exclusive 	representative?
DISCUSSION AND
CONCLUSIONS OF LAW
1. 	Per diem substitute teachers are entitled to exclusive representation
under the EERA.
a. 	Per diem substitute teachers are "employees" under the EERA.
The District first argues 	that the substitutes in issue are not
"employees" under Government Code §3540.l(j) 	since they have no written
- 6 -

employment contracts. 	See Wood v. 	Los Angeles City School District
(1935) 6 C.A.2d 400, 403, 44 P.2d 644; Main v. Claremont Unified School
District 	(1958) 161 C.A.2d 189, 195, 	326 P.2d 573; Gould v. 	Santa Ana High
School District (1933) 131 C A . 345, 	348-9, 21 P.2d 623.
The hearing officer cannot agree. 	Government Code §3540.1 (j), defining
"employee," does not require a written employment contract; by its terms it
requires only that a person be "employed" by a public school employer. 	Edu-
cation Code §44917 clearly states 	that "substitute employees 	[are] 	those
persons employed in positions requiring certification qualifications... 	."
(emphasis added). 	See also, Education Code §§44830, 44831.
. . . ."
Government Code §3540.l(j) defines "public school employee" or
"employee" as 	"any person employed by any public school employer," subject
to four specific exclusions. 	It must be presumed that the Legislature in-
tended to exclude only these four 	categories.4 	There is no reason 	for
grafting onto Government Code 	§3540.l(j) 	a case law definition of 	"employee"
under the Education Code. 	The purposes of the EERA are distinct 	from those
of the employment provisions of the Education Code. 	Accordingly, 	the defi-
nitions of "employee" need not be the same. 	In fact, 	they are not. 	The
EERA's 	definition excludes management and confidential employees who 	certainly
can be school district employees under the Education Code. 	Similarly, 	even
if a written contract were required for employee status under 	the Education
Code, 	it does not follow that it is also required under the EERA.
The District's position also could lead to absurd results. 	For example,
because essential terms of employment are governed by statute or school
44 "Mention of one thing implies exclusion of another." 	Black's Law
Dictionary (Rev. 	4th Ed. 	1968), at 692.
- 5 -

district policy, tenured teachers do not need a written contract. 	See
Gerritt v. Fullerton Union High School District (1938) 24 C.A.2d 482,
75 P.2d 627; 45 Ops. Cal. Atty. Gen. 131, 134 (1965). 	It would be absurd
to exclude full-time, tenured teachers from a certificated negotiating
unit for not having written contracts. 	Furthermore, a school district
may give written contracts to all its employees, including per diem sub-
stitutes. 	Since it is within the District's power to grant or withhold
written contracts to its substitutes, it would be unfair to include or
exclude substitutes from a negotiating unit on this arbitrary basis.
The District next argues that substitutes do not hold "positions"
and therefore may not be in a negotiating unit which, under Government
Code §3544, consists of a grouping of "jobs or positions." 	(The District
contends that "job" has the same meaning as "position.") 	But Education
Code §44917 plainly states that substitutes are "employed in positions
requiring certification qualifications... 	." 	(emphasis added). 	On the
other hand, Education Code §§44919 and 	44920, governing employment of
temporary teachers, do not mention the term "position." 	Nevertheless,
the Board has determined that temporary teachers are properly includable
in a unit of certificated employees. 	Belmont Elementary School District,
EERB Decision No. 7, December 30, 1976; Grossmont Union High School District,
EERB Decision No. 11, March 9, 1977.
Under the National Labor Relations Act (NLRA), "casual" employees
may be excluded from negotiating units. 	Casual employees are those who
lack a sufficient interest in conditions of employment to be included in
the bargaining unit. 	Mission Pak Co. (1960) 127 NLRB 1097, 46 LRRM 1181.
However, no NLRA case has been found in which casual employees were held
not to be "employees" within the meaning of §2(3) 	of the NLRA.
- 6 -

In other states with broad definitions of "employee" similar to
that in Government Code §3540.l(j), the majority in which applicable
precedent has been found hold that per diem substitutes are "employees."
Eugene Substitute Teacher Organization v. Eugene School District 4-J
(Oregon 1976) 1 PECBR 716; Philadelphia School District (Pa. 1975) 5 PPER
113; Milwaukee Board of School Directors (Wise. 1969), Decision No. 8901;
Reese Public School District (Mich. 1969) 1969 MERC Lab. Op. 253. 	Cf.
Roncocas Valley Regional High School (N. J. 1976) 2 NJPER 68 (evening
teachers are "employees"); Town of Lincoln (Mass. 1975) 1 MLC 1422 ("call
firefighters" are "employees"). 	In New York per diem substitutes were
held not to be "employees." 	Bernard T. King, Esq. (N.Y. 1973) 6 PERB 3083.
In Belmont, supra, at 6-7, Petaluma City Elementary and High School
Districts, EERB Decision No. 9, February 22, 1977, at 3-4, and Oakland
Unified School District, EERB Decision No. 15, March 28, 1977, at 8-9,
"long-term" substitutes were excluded from certificated negotiating units
based on their lack of a community of interest with "regular" certificated
employees. 	Likewise, in Los Rios Community College District, EERB Decision
No. 18, June 9, 1977, at 13, day-to-day substitutes similarly were excluded.
The Board did not hold in any of these cases that the substitutes
were excluded from the unit because they are not employees.
The EERA should be liberally interpreted so as to effectuate its
purpose of affording public school employees the right to organize and be
represented in their employment relations by an exclusive representative.
Government Code §3540. 	Therefore, in view of the foregoing discussion
and authorities, and absent contrary Board precedent, it is found that
per diem substitutes on the District's substitute teaching list who 	have
taught in the District are "employees" within the meaning of Government
Code §3540.l(j).
- 7 -

- 	8 -
b. 	A unit of per diem substitute teachers Is appropriate.
The District argues that it would be impossible or impractical to
negotiate with a per diem substitute teacher unit on most matters within
the scope of representation (Government Code §3543.2), and therefore such
a unit is inappropriate.
However, even the District admits in its brief that substitute wages
can be negotiated. 	They in fact were negotiated this past year by the
"regular" certificated unit.5 Because of the importance of wages in
negotiations, this factor alone rebuts the District's argument. 	Neverthe-
less, 	there is no showing that other items within the scope of representation
cannot also be negotiated. 	For example, there was no evidence presented
to show that health and welfare benefits could not be negotiated for
substitutes. 	It has been done in Pennsylvania (see GERR No. 668, 8/2/76
at B-16). 	The same is true of evaluation procedures. 	The informal evalua-
tion of a substitute teacher's performance is an important factor in the
decision to use the substitute again. 	Also, many new probationary teachers
come from the substitute ranks and these informal evaluations could play
a part in this hiring decision as well. 	Assuming, without deciding, that
an evaluation procedure for per diem substitutes is negotiable,-under the
circumstances per diem substitutes may want to negotiate 	on the
evaluation procedure.
The fact that some persons on the substitute list also are on sub-
stitute lists in other school districts is not an impediment to formation
of a substitute teachers unit. 	Under the NLRA, employees have been included
5This fact also militates in favor of finding a substitute unit appropriate
for another reason. 	Under Ed. Code §44977, 	absent, ill or injured teachers
receive their regular pay, less that paid to their substitute, for a speci-
fied five-month period. 	Because an increase in substitute pay reduces such
"difference pay," regular teachers have an inherent conflict of interest
when negotiating substitute pay.
8 -
5

•
in bargaining units even though they also may work for other employers.
E.g., Henry Lee Co. (1972) 194 NLRB 1107, 79 LRRM 1159; All-Work Inc. (1971)
193 NLRB 918, 78 LRRM 1401. 	In Fresno Auto Auction, Inc. 	(1967) 167 NLRB
878, 66 LRRM 1177, employees working on an "as-needed" basis, many of whom
held regular, full-time jobs elsewhere, nevertheless were included in the
unit. 	In this case, 	there is no evidence that substitute employment in
other school districts would detract from the substitutes' community of
interest in the terms and conditions of their employment in 	this district.
See Los Rios Community College District, EERB Decision No. 18, June 9, 1977,
at 11.
It is apparent from the Findings of Fact that a unit of per diem sub-
stitute teachers would have a separate and distinct community of interest
in terms and conditions of employment. 	Their salary, benefits, method of
employment and selection for service are the same. 	Their duties when sub-
stitute 6
teaching are similar. 	They have no guarantee of future employment,
6
earn no tenure and have no written contracts. 	These same factors distin-
guish them from the unit of regular, certificated employees.
Per diem substitute teachers are an integral part of the District's
operations. 	Extrapolating from the evidence it appears that the District
required over 2500 substitute days through April in the 1976-77 school
year.
77 Without these substitutes, it is doubtful that the District could
66The deputy superintendent testified that no per diem substitutes serve
75% of a school year so as to be assured future employment under Ed-,
Code §44918.
77The $95,000 substitute budget was exhausted in April. 	At $37.50 per day,
the approximate number of substitute days was determined. 	If substitutes
were paid at the previous lower rate, the number of substitute days of
course would be increased.
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operate an effective instructional program. 	Per diem substitutes thus
are an important and presumably permanent component of the District's
instructional program.
For the above reasons, it is found that per diem substitute teachers
constitute a separate but homogeneous group with a separate and distinct
community of interest justifying formation of a negotiating unit.
2. 	All per diem substitute teachers who have worked during the previous
school year or the current school year and who are on the most current
substitute teaching list, are included in the unit.
Having found that per diem substitute teachers are employees under
the EERA and that they possess a sufficient community of interest to
justify formation of a negotiating unit, there still remains the question
of the composition of an appropriate unit. 	In the cases previously cited
from other states in which substitutes were found to be employees within
the meaning of their respective statutes, there is no uniformity as to
which employees were included in the unit.
In Pennsylvania (Philadelphia School District, supra), per diem
substitutes who served less than the median number of days (22) served
by all per diem substitutes in the last school year were excluded from
the unit. 	In Wisconsin (Milwaukee Board of School Directors, supra), all
per diem substitutes were included in the unit; however, only those who
had taught at least 30 days in the year preceding the election were
found to have sufficient interest in the outcome of the election to be
eligible to vote. 	The result in Michigan (Reese Public School District,
supra) was similar. 	In Oregon (Eugene Substitute Teacher Organization,
et al., supra), all substitutes who taught at all during the past school
year or thereafter and who were on the current substitute list were
included in the unit and also were eligible to vote.
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Under the NLRA, there is a line of cases originating in the con-
struction industry with results generally the same as reached in Milwaukee
Board of School Directors and Reese Public School District, supra, and
which provides a useful analogy to the per diem substitute teacher
situation. 	The NLRB stated in R. B. Butler Inc. 	(1966) 160 NLRB 1595,
1602, 63 LRRM 1173:
"Because of the nature of the construction industry, many
construction employees may be employed by several different
employers during the course of the year. 	Also, many such
employees experience intermittent employment and may work
for short periods of time on different projects. 	However,
...these factors in no way detract from such employees'
continuing interest in working conditions."
In Trammell Construction Co., Inc. (1960) 126 NLRB 1365, 45 LRRM
1489, 	the employer engaged in various construction projects in a particular
geographic area. 	The employer had about five regular employees who acted
as a "nucleus" for the formation of construction crews at new projects.
Since the employer had a nucleus of regular employees and continually
embarked upon new construction projects requiring construction crews,
the NLRB placed all construction employees at the employer's various
projects in the unit. 	Eligibility to vote in the representation election,
however, was limited to those who during the past year had worked the
average number of days worked by members 	of the unit. 	These persons
were determined to have sufficient continuing interest in working con-
ditions to entitle them to vote. 	To similar effect, see W. Horace
Williams Co. (1961) 130 NLRB 223, 47 LRRM 1337; Daniel Construction Co., Inc.
(1961) 133 NLRB 264, 48 LRRM 1636; Broomall Construction Co., Inc.(1962)
137 NLRB 344, 50 LRRM 1150; Queen City Railroad Construction Co., Inc.(1965)
150 NLRB 1679, 58 LRRM 1307.
-
- 11 -

The NLRB also has applied similar reasoning in other contexts with
similar results. 	In Fresno Auto Auction, Inc., supra, the NLRB found
appropriate a unit consisting entirely of employees who worked on an
"as needed" basis. 	The position of "driver" is illustrative. 	An
average of 12 to 15 drivers out of a fluctuating pool of approximately
120 were employed weekly, ranging from one to 35 hours a week. 	They were
paid on an hourly basis and received no fringe benefits. 	Many held full-
time jobs elsewhere. 	There was no commitment to work any particular
number of hours or days. 	During one forty-week period, a majority worked
three or more consecutive weekly pay periods; 	"many" of this majority
worked ten or more consecutive weekly pay periods. 	As stated above, 	the
NLRB included all drivers, regardless of hours worked, in the unit.
Eligibility to vote in the election, however, was limited to those who had
worked a certain minimum amount.
In Julliard School (1974) 208 NLRB 153, 85 LRRM 1129, a unit of mostly
"per diem" stage hands, employed under conditions similar to those in
Fresno Auto Auction, was found appropriate. 	See also Newton-Wellesley
Hospital (1975) 219 NLRB 699, 90 LRRM 1090 (on-call nurses);
Daniel Ornamental Iron Co., Inc. 	(1972) 195 NLRB 334, 79 LRRM 1343
(intermittently employed welders); Cavendish Record Manufacturing Co.
(1959) 124 NLRB 1161, 44 LRRM 1622 (studio musicians).
The underlying rationale of the above NLRB cases seems to be that so
long as there is a "nucleus" of employees who work fairly regularly and
on a continuing basis, all employees in the job classification, regardless
of hours worked by the remainder, will be included in the unit. 	Amount
and continuity of employment are taken into account in determining the
voting eligibility formula.
-
- 12 -

Essentially the same situation exists with per diem substitute
teachers in the District. 	Out of a fluctuating pool of 75 persons
employed as needed and without regular fringe benefits, 	20-25 substitutes
form a "core" by returning from year to year and regularly working more
than 50 percent of a school year.
It has been said that drawing lines is a tricky business. 	The
hearing officer agrees with the statement in Eugene Substitute Teacher
Organization et al., supra, on this point:
"Any division based on number of days among those actually
hired is wholly arbitrary. 	...The only real yardstick should
be whether or not a substitute teacher was in fact hired at
all during the previous school year or thereafter." 	(1 PECBR
718, at 726)
Furthermore, 	"community of interest" should not be an inflexible
standard. 	Rather, as the term itself implies, it should be defined by
the particular "community" to which it is applied. 	While the Board has
determined that it is not appropriate to put substitutes in a unit with
regular, full-time teachers, an entirely different situation is presented
when considering, as here, a unit solely of per diem substitutes. 	In the
latter case, 	even though the "core" of the unit works on a more regular
basis than the rest, all unit members 	have virtually identical terms and
conditions of employment, which, in the judgment of the hearing officer,
outweigh the variances in length of employment.
Therefore, 	following the NLRB precedent discussed above, and as held
by the public employment relations boards in Oregon, Wisconsin and Michigan,
it is found that an appropriate negotiating unit for per diem substitute
teachers in the District consists of all per diem substitute teachers on
the most current substitute teaching list who have actually taught in the
District during the previous or current school year 	(excluding summer
sessions).
- 13 -

The two remaining criteria set forth in Government Code §3545(a),
established practices and efficiency of operations, do not change the
proposed unit determination based on community of interest. 	The evidence
pertaining to representation of per diem substitutes in the past is
inconclusive. 	If anything, 	the fact that the Federation represented
substitute teachers in grievances lends some support to finding a
substitute unit appropriate.
The evidence on efficiency of operations also is inconclusive. 	The
deputy superintendent's testimony, 	that increased salary and benefits for
per diem substitutes as a result of negotiations will impose a greater
financial burden on the District, is unpersuasive. 	This is a normal and
expected concomitant of collective negotiations. 	The deputy superinten-
dent's testimony also is belied by the fact that substitute wages already
have been negotiated and increased in the current agreement with the
regular certificated unit.
It may well be that negotiating, obtaining or administering a fringe
benefit program for per diem substitutes who work on an irregular and
infrequent basis will present administrative difficulties for the District.
Thus an efficiency of operations argument could be made to exclude from
the unit per diem substitutes who work on a less regular basis. 	However,
while such an argument certainly would be entitled to consideration in an
appropriate case, there is no evidence in this record to support such an
argument.
- 14 -

3. 	Per diem substitute teachers (1) on the substitute teaching list as of
the established cut off date, 	(2) who have been on the list continuously for
three consecutive semesters including the one in which the election is held,
and (3) who actually worked in any two of the three semesters listed, are
eligible to vote in the election.
As indicated in the previous discussion, in most of the cases cited
above, even where all employees in particular job classifications were
included in a unit, the NLRB nevertheless restricted voter eligibility
to those unit members who worked a specified period of time and thus were
judged to have a sufficient, continuing interest in working conditions
and the election outcome to vote in the representation election.
The reason for this distinction between unit membership and voter
eligibility in certain industries appears to be that once it has been
determined that an appropriate unit exists, all employees with a com-
munity of interest performing work within the unit description (subject
to certain exclusions not relevant here) are entitled to representation
in their employment relations. 	Certainly, as a practical matter, all
employees' terms and conditions of employment are likely to be affected
by the unit's negotiations with the employer. 	On the other hand, only
those employees who have worked a particular amount during a specified
time period are deemed to have a sufficient interest in the outcome of
the election (i.e., a reasonable expectancy of future employment) to
participate in the election and thereby influence the result.
The NLRB tailors the voter eligibility formula to fit the peculiar
characteristics of the unit and to reach the unit "nucleus." 	"Selection
of 	an eligibility formula...depends upon a careful balancing of the
- 15 -

factors of length, 	regularity and currency of employment giving due
regard to the industry involved." 	Daniel Ornamental Iron Co., 334, supra.
For example, in Daniel Construction Co.. Inc., supra, responsive to the
intermittent employment conditions and layoffs characteristic of the
construction industry, eligible voters included, in addition to those
employed in the payroll period preceding the election, 	employees who worked
30 days within the last 12 months, or 45 days within 24 months including
some within the past 12 months. 	In Julliard School, supra, all stagehands
employed for five days in a two-year period were eligible to vote.
Even though neither party has addressed the issue, 	in light of the
fluctuating, 	irregular employment pattern of per diem substitutes other
than the "core," in the present case it likewise is found necessary to devise
a voting eligibility formula to include those employees who have a sufficient,
continuing interest in their conditions of employment and a reasonable ex-
pectancy of future employment. 	Accordingly, 	per diem substitutes who
meet all the following criteria are found to be eligible to vote in an
election for an exclusive representative:
(1) 	Are on the District's substitute teaching list 	as of the
established cut off date.
(2) 	Have continuously been on the substitute teaching list
for three 	consecutive semesters 	(excluding summer sessions) 	including
the one in which the election is held; and
(3) 	Have actually worked in any two of the three consecutive
semesters listed.
Proposed Decision
It is 	the Proposed Decision that the following unit is appropriate
for meeting and negotiating, 	provided an employee organization becomes 	the
exclusive representative:
- 16 -

A unit of all substitute teachers on the most current
substitute teaching list who have worked in the in the
District during the previous or current 	school year.
A unit of all substitute teachers on the most current
substitute teaching list who have worked
District during the previous or current school year.
It is further proposed that members of the unit are eligible to vote in te in
an election for exclusive representative if: if:
It 	is 	further proposed. that members of the unit are eligible to vo
'an election for exclusive representative
(a) They are on the list as of the established election cut-off ut-off
date, andd
(b) Have continuously been on the substitute teaching list for three r 	three
consecutive semesters (excluding summer sessions) including the one in which ich
the election is held, and and
They are on the list as of the established election c
date, an
(b) 	Have continuously been on the 	substitute 	teaching list 	fo
consecutive semesters 	(excluding summer sessions) 	including the one 	in wh
the election is held,
(c) Have actually worked in any two of the three consecutive semesters semesters
listed.d.
Have actually worked in any two of the three consecutive
liste
The parties have 	seven 	(7) 	calendar days 	from the receipt of 	this Pro
Decision in which to 	file exceptions 	in accordance with Section 33380
Board's Rules and Regulations. 	If no party files timely exceptio
Proposed Decision will become final on September 19, 	1977, 	and a Notice of
Decision will 	issue from the B
Within ten 	(10) 	workdays after the employer posts 	the Not i ce of De
the employee organization shall demonstrate to the Regional Direct
least 	30 percent 	support 	in the above unit. 	The Regional Di
conduct an election at 	the end of 	the posting period if the employer do
not 	grant voluntary recogniti
Dated: 	September 7, 	1977
- 	17 -
Gerald A. 	Becker
Hearing Office
(a)
(c)
The parties have seven (7) calendar days from the receipt of this Proposed posed
Decision in which to file exceptions in accordance with Section 33380 of the of the
Board's Rules and Regulations. If no party files timely exceptions, this ns, 	this
Proposed Decision will become final on September 19, 1977, and a Notice of
Decision will issue from the Board. oard.
Within ten (10) workdays after the employer posts the Notice of Decision,cision,
the employee organization shall demonstrate to the Regional Director at or at
least 30 percent support in the above unit. The Regional Director shall rector shall
conduct an election at the end of the posting period if the employer does es
not grant voluntary recognition. on.
Dated: September 7, 1977. .
Gerald A. Becker
Hearing Officer. r.
17 -