Oakland Unified School District (PERB 0102E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
Employer , 	Case No. SF-R-200X
and
PERB Decision No. 102
OAKLAND EDUCATION ASSOCIATION, CTA/NEA,
Employee Organization. 	September 20, 1979
Appearances: M
Oakland Education Association, CTA/NEA.
Before Gluck, Chairperson; Gonzales and Moore, Members.
DECISION
This case is before the Public Employment Relations Board
(hereafter PERB or Board) on exceptions filed by the Oakland
Unified School District (hereafter District) to the attached
hearing officer proposed decision. The District has excepted
to the hearing officer's decision that the following unit is
appropriate for meeting and negotiating:
All certified substitute teachers, who are
on the Oakland Unified School District's
current active list and who have worked in
It argues that per diem substituente not "employees"
STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OAKLAND
	UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
OAKLAND
	EDUCATION
	ASSOCIATION, 	CTA/NEA,
Employee
	Organization.
)
children's center substitutes.
This	the current year or the prior year.
)
)
)
)
)
)
)
)
)
OAKLAND UNIFIED SCHOOL DISTRICT,
ichael Sorgen, Legal Advisor for Oakland Unified School
District;
	Duane
	Beeson,
	Attornei
	(Beeson,
	Tayer,
	Kovach
unit includes K-12, adult education, and
Case
	No. 	SF-R-200X
PERB
	Decision
	No.	
102
September	
20,	
1979
Appearances: 	Michael 	Sorgen, 	Legal 	Advisor
	for
	Oakland
	Unified
	School
District; Duane Beeson, Attorney (Beeson, Tayer, Kovach and Bodine) for and
	Bodine)
	for
Oakland
	Education
	Association,
	CTA/NEA.
Before 	Gluck,
	Chairperson;
	Gonzales
	and 	Moore, 	Members.
DECISION
This 	case
	is
	before 	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board) 	on
	exceptions
	filed
	by
	the
	Oakland
Unified
	School
	District
	(hereafter 	District) 	to
	the 	attached
hearing
	officer
	proposed
	decision.
	The
	District
	has
	excepted
to 	the 	hearing
	officer's
	decision 	that
	the 	following
	unit 	is
appropriate 	for 	meeting
	and
	negotiating:
All
	certified 	substitute 	teachers,
	who
	are
on
	the
	Oakland
	Unified 	School
	District's
current 	active
	list	
and 	who
	have 	worked
	in
the 	current	
year 	or 	the
	prior
	year.
	This
unit 	includes
	K-12,
	adult 	education,
	and
children's 	center 	substitutes.
It
	argues
	that	
per 	diem
	substitues 	are 	not 	"employees" 	under
the 	Educational
	Employment	
Relations
	Act
	(hereafter	the Educational Employment Relations Act (hereafter
under

Thus, the issue before the Board is whether a separate unit
of substitute teachers is appropriate for meeting and
Based on the entire record in this case, the Board adopts
the procedural history and findings of fact contained in the
attached proposed decision.
DISCUSSION
I believe that the hearing officer was incorrect in finding
a unit of substitute teachers to be appropriate for meeting and
negotiating. I continue to adhere to my opinion, set forth in
my dissent in Palo Alto Unified School District/Jefferson Union
High School District (1/9/79) PERB Decision No. 84, that the
l
EERA) ,,	EERA)
l a
and
	that
	no
	appropriate
	unit
	of
	substitutes
	can
	be
established.
nd that no appropriate unit of substitutes can be
established.
N
Thus,
	the
	issue 	before 	the
	Board
	is
	whether
	a
	separate
	unit
of
	substitute
	teachers
	is
	appropriate 	for
	meeting
	and
negotiating. A majority of the Board finds, for different	
for
	different
reasons,
	that
	a
	separate 	unit
	of
	substitute
	teachers
	is
	not
	an
appropriate 	unit
	under
	the
	EERA.
Based
	on
	the
	entire
	record
	in
	this
	case,
	the
	Board
	adopts
the 	procedural
	history
	and
	findings 	of
	fact
	contained 	in 	the
attached
	proposed
	decision.
DISCUSSION
I
	believe
	that
	the 	hearing
	officer
	was
	incorrect
	in 	finding
a
	unit	
of	
substitute
	teachers 	to
	be
	appropriate	
for	
meeting
	and
negotiating.
	I
	continue 	to
	adhere
	to
	my
	opinion,
	set
	forth 	in
my
	dissent
	in 	Palo Alto 	Unified
	School
	District/Jefferson
	Union
High
	School
	District
	(1/9/79)
	PERB
	Decision
	No.
	84,
	that
	the
EERA
	does 	not
	require
	this
	Board
	to
	extend
	negotiating 	rights
to
	groups
	whose 	employment
	relationship
	with
	any
	particular
school
	district 	is
	as
	attenuated
	as
	that
	of 	per
	diem
substitutes.	
The	
facts 	in
	this
	case 	are 	not
	sufficiently
different	
from	
those 	in 	Palo
	Alto/Jefferson 	to 	require
	a
1The	The EERA is codified at Government Code section 3540 et	
EERA
	is 	codified 	at
	Government 	Code	
section
	3540
	et
seq.	
seq. 	All statutory references hereafter are to the Government	
All 	statutory 	references 	hereafter 	are 	to 	the
	Government
Code.	Code.
2
negot:i.ating.
EERA does not require this Board to extend negotiating rights
to groups whose employment relationship with any particular
school district is as attenuated as that of per diem
substitutes. 	The facts in this case are not sufficiently
different from those in Palo Alto/Jefferson to require a
appropriate unit under the EERA.
reasons, that a separate unit of substitute teachers is not an
.A
majority
	of
	the
	Board
	finds,

I additionally note, however, that in this case, the
alternatives of either placing substitutes in the same units
with regular teachers or placing all substitutes in one
separate unit would result in some substitutes being
represented in two negotiating units in the Oakland District,
since some full-time K-12 and children's center teachers work
In Palo Alto/Jefferson, I stated that because substitutes
often work in more than one district, the majority's decision
2
W
different analysis; I will not here repeat the arguments I made
in that case.
as substitutes in the adult education program and some adult
education substitutes are on the K-12 or children's center
substitute list. For example, under the first alternative unit
structure, a regular K-12 teacher who moonlighted as a
substitute in the adult education program would potentially be
in two units: a K-12 unit of regular and substitute teachers
and an adult education unit of regular and substitute
-
different
	analysis;
	I
	will
	not
	here
	repeat
	the
	arguments
	I 	made
in
	that
	case.
I
	additionally
	note,
	however,
	that
	in
	this
	case,
	the
alternatives	
of	
either
	placing
	substitutes
	in
	the
	same
	units
with
	regular 	teachers 	or 	placing
	all
	substitutes
	in
	one
separate
	unit
	would
	result
	in
	some
	substitutes
	being
represented 	in
	two
	negotiating
	units
	in 	the
	Oakland
	District,
since
	some
	full-time
	K-12
	and
	children's
	center 	teachers
	work
as
	substitutes
	in
	the
	adult
	education
	program
	and
	some
	adult
education
	substitutes
	are	
on	
the
	K-12
	or
	children's
	center
substitute
	list.
	For 	example, 	under
	the
	first
	alternative 	unit
structure,
	a
	regular
	K-12
	teacher
	who
	moonlighted
	as
	a
substitute
	in 	the
	adult
	education
	program
	would
	potentially
	be
in
	two
	units:
	a
	K-12
	unit 	of 	regular
	and
	substitute
	teachers
and 	an
	adult
	education
	unit 	of 	regular
	and
	substitute
teachers. U	
tea chers.
in the Oakland District. However, the United Teachers of
There is currently no unit of adult education teachers
substitute unit.
teacher would also be in two units: a K-12 unit and a
n d
er 	th
_e	
secon
d
	a_.erna
	lt	
t'
1ve
	s t
rue
t
ure,
	~h
	L.e
	same	n	
2	
U	der the second alternative structure, the same
teacher
	would
	also
	be
	in
	two
	units:
	a 	K-12
	unit
	and 	a
substitute 	unit.
In 	Palo
	Alto/Jefferson,
	I
	stated 	that
	because
	substitutes
often
	work
	in
	more
	than
	one
	district,
	the
	majority's 	decision
2There
	is 	currently
	no
	unit 	of 	adult 	education 	teachers
in 	the
	Oakland
	District.
	However,
	the 	United 	Teachers 	of
Oakland, AFT, Local 771 has requested recognition in a unit of
in
	a
	unit
	of
all 	certificated
	hourly, 	non-contracted 	adult 	educationemployees, 	while 	the 	Oakland 	Education 	Association 	has
requested 	recognition 	in
	a
	unit 	of 	all 	certificated
	hourlyemployees 	not 	included 	in 	the 	Units
	A 	(K-12) 	and 	B
	(children'scenter)
	and
	the 	substitute 	unit.
3
Oakland,
	.?\FT,
	Local 	771	
has	
requested 	recognition
all certificated hourly, non-contracted adult education
employees, while the Oakland Education Association has
requested recognition in a unit of all certificated hourly
employees not included in the Units A (K-12) and B (children's
center) and the substitute unit.

giving
	substitutes
	full
	negotiating
	rights
	would
	give
	them
"several
	bites 	at
	the
	taxpayers' 	apple."
	This
	is
	true 	in 	the
present
	case
	as
	well;
	many
	substitutes
	work
	in 	several
districts.
	But
	in
	this
	case,
	some
	substitutes
	would
	be
	in
	two
units
	in 	the
	same
	district
	and 	would
	be
	in
	a
	position
	to 	get
"two
	bites 	at
	the
	same
	taxpayers' 	apple."
	I
	believe
	that
	this
would
	be
	an
	absurd
	result
	and
	should
	be
	avoided
	by
	recognizing
that 	substitutes
	do
	not
	have
	a
	sufficiently
	substantial
	and
continuing
	relationship
	with
	a
	district
	to
	justify
	extending
negotiating
	rights
	to
	them.
districts.
"several bites at the taxpayers' apple. " This is true in the
present case as well; many substitutes work in several
But in this case, some substitutes would be in two
units in the same district and would be in a position to get
"two bites at the same taxpayers' apple. " I believe that this
would be an absurd result and should be avoided by recognizing
that substitutes do not have a sufficiently substantial and
continuing relationship with a district to justify extending
negotiating rights to them.
giving substitutes full negotiating rights would give them
In
	this
	case,
	a 	new
	issue
	is
	raised
	as
	to
	whether
substitutes
	and
	regularly
	employed
	teachers 	for
	whom
	they
substitute
	can 	be
	appropriately
	included 	in
	the
	same
	units.	substitute can be appropriately included in the same units. 3
substitutes and regularly employed teachers for whom they
In this case, a new issue is raised as to whether
3
In
	my
	opinion,
	substitutes
	are 	not 	"classroom
	teachers" 	within
the meaning of section 3545 (b) (1) . 4 (
In my opinion, substitutes are not "classroom teachers" within
P
3
eralta Community	
4 	(Peralta
	Community	
the
	meaning
	of 	section
	3545(b)
(1).
3Currently there are two units of certificated employees
in the Oakland Unified School District: K-12 and children's
center
	employees. 	Requests 	for 	recognition 	in
	a
	unit
	of
	adult
education 	teachers
	have 	been
	filed.
	See
	note 	2,
	ante.	education teachers have been filed. See note 2, ante.
Requests for recognition in a unit of adult	center employees.
in currently
4
section
	3545
(b) (1)	
states:	Section 3545 (b) (1) states:
In
	all
	cases:	In all cases:
A negotiating unit that includes classroom
teachers shall not be appropriate unless it
at least includes all of the classroom
teachers employed by the public school
employer, except management employees,
supervisory employees, and confidential
employees.
4 
A
negotiating 	unit 	that 	includes 	classroom
teachers 	shall
	not 	be
	appropriate 	unless
	it
at 	least
	includes	
all	
of 	the 	classroom
teachers
	employed 	by
	the 	public 	schoolemployer, 	except	
management 	employees,
supervisory 	employees, 	and	
confidentialemployees.
4
there 	are
	two
	units
	of
	certificated
	employees
the
	Oakland
	Unified
	School
	District:
	K-12 	and
	children's

College District (11/17/78) PERB Decision No. 77, concurring
opinion. ) However, even under the majority's theory in
Peralta, I would find that a unit of substitutes and regularly
employed teachers does not meet the criteria in section
3545 (a) . 5 	I believe that creation of such units would be
totally antithetical to the Legislature's command that the
Board consider community of interest in determining unit
appropriateness.
As I stated in my dissent in Rio Hondo Community College
District (1/25/79) PERB Decision No. 87, relative to community
of interest:
[T] he purpose of examining community of
interest in making unit determinations is to
group together employees with mutual
interests in terms and conditions of
employment so that conflicting interests do
not impede effective representation. (P. 18)
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
5
College
	District
	(11/17/78)
	PERB
	Decision
	No.
	77,
	concurring
opinion.)
	However,
	even 	under
	the
	majority's
	theory 	in
Peralta,
	I
	would
	find
	that
	a
	unit
	of
	substitutes
	and
	regularly
employed
	teachers
	does
	not
	meet
	the
	criteria
	in
	section
3545(a)
. 5 	I
	believe
	that 	creation
	of
	such
	units
	would 	be
totally 	antithetical
	to 	the
	Legislature's
	command
	that
	the
Board
	consider
	community	
of	
interest
	in 	determining
	unit
appropriateness.
As 	I
	stated
	in
	my
	dissent
	in
	Rio
	Hondo 	Community
	College
District	
(1/25/79)
	PERB
	Decision
	No.
	87,
	relative
	to
	community
of
	interest:
[T]he
	purpose 	of
	exam1n1ng 	community
	of
interest
	in
	making
	unit
	determinations
	is
	to
group
	together
	employees
	with 	mutual
interests
	in
	terms
	and
	conditions 	of
employment
	so
	that 	conflicting 	interests
	do
not
	impede
	effective 	representation.
	(P. 	18)
5Section 3545 (a) states:	
section	S
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.
5
and
	their
	es 	ished
	practices
	i
	ing,
among
	other
	thi 	s,
	the 	extent 	to
	which
employees 	belong
	to
	the
	same 	employee
organization,
	and
	the
	effect
	of 	the
	size 	of
the 	unit
	on
	the
	efficient 	eration
	oft
school
	district.
3545(a)
	states:

It seems clear to me that substitutes and regularly
I continue to believe that substitutes are not employees
employed teachers have sufficiently disparate interests arising
from their different employment conditions to make effective
representation of both groups in the same unit very difficult.
When two groups have completely different employment
conditions, their negotiating priorities are also likely to
differ significantly. For example, substitutes, who currently
receive no benefits, may want health insurance, while teachers
may place greater importance on a salary raise. 	While such
conflicts may arise in any unit, I do not believe that we
should create units in which severe conflicts in priorities are
almost assured.
In addition, the two groups have at least one diametrically
opposed interest--salaries. In the event that a teacher is
absent long enough to exhaust his/her sick leave, that teacher
is then paid the difference between a full-time teacher's
salary and the cost of a substitute for the next 100 days.
Clearly, teachers have a direct interest in keeping the costs
for substitutes as low as possible, while substitutes have an
interest in higher wages and benefits. Such a direct conflict
could cause severe divisiveness within a unit, thus rendering
an exclusive representative's task of fairly representing the
It
	seems
	clear
	to
	me
	that 	substitutes
	and
	regularly
employed
	teachers
	have
	sufficiently
	disparate
	interests
	arising
from
	their
	different
	employment
	conditions 	to
	make
	effective
representation
	of
	both 	groups
	in
	the
	same
	unit
	very
	difficult.
When
	two
	groups
	have
	completely
	different
	employment
conditions,
	their
	negotiating
	priorities
	are
	also
	likely 	to
differ 	significantly.
	For
	example,
	substitutes,
	who
	currently
receive
	no
	benefits,
	may
	want
	health
	insurance,
	while
	teachers
may
	place
	greater
	importance
	on
	a
	salary
	raise.
	While
	such
conflicts
	may
	arise
	in
	any
	unit,
	I 	do
	not
	believe
	that
	we
should
	create 	units
	in
	which
	severe
	conflicts
	in
	priorities
	are
almost
	assured.
In 	addition,
	the
	two
	groups
	have
	at 	least
	one
	diametrically
opposed
	interest--salaries.
	In
	the 	event
	that
	a
	teacher
	is
absent
	long 	enough
	to 	exhaust
	his/her 	sick 	leave,
	that
	teacher
is
	then paid 	the 	difference
	between
	a
	full-time 	teacher's
salary
	and
	the
	cost 	of
	a
	substitute
	for 	the 	next
	100
	days.
Clearly, 	teachers
	have
	a
	direct 	interest
	in
	keeping
	the
	costs
for
	substitutes
	as
	low
	as
	possible,
	while
	substitutes
	have 	an
interest
	in 	higher
	wages 	and	
benefits.
	Such 	a
	direct 	conflict
could 	cause 	severe 	divisiveness 	within
	a
	unit,
	thus 	rendering
an
	exclusive 	representative's 	task 	of
	fairly
	representing 	the
unit almost impossible.	
unit	
almost 	impossible.
I
	continue 	to 	believe 	that	
substitutes 	are 	not 	employees
entitled to negotiating rights under the EERA. 	However, since
6
entitled 	to 	negotiating 	rights
	under 	the
	EERA. 	However,
	since

the majority, in Palo Alto/Jefferson, has granted substitutes
such rights, I believe it is necessary to state that the way to
implement this decision is not to place substitutes and
teachers in the same unit, a solution which can only fail
"to promote the improvement of personnel management and
employer-employee relations within the public school
system . . .". (Gov. Code sec. 3540.)
The concurring opinion of Chairperson Gluck begins on page 8.
the
	majority, 	in
	Palo
	Alto/Jefferson,
	has
	granted
	substitutes
such
	rights,
	I
	believe
	it
	is
	necessary
	to
	state
	that
	the
	way
	to
implement
	this
	decision
	is
	not
	to 	place
	substitutes
	and
teachers 	in
	the
	same
	unit,
	a
	solution
	which
	can
	only
	fail
"to
	promote
	the
	improvement
	of 	personnel
	management 	and
employer-employee
	relations
	within
	the
	public
	school
system
	.•.
".
	(Gov. 	Code
	sec.
	3540.)
Raymond J. Gonzales, Membey
The
	concurring 	opinion
	of
	Chairperson
	Gluck
	begins
	on 	page
	8.
7

Harry Gluck, Chairperson, concurring in result:
I would dismiss the petition for a separate unit of
substitutes with leave to petitioner to file a request for unit
modification under Board rule 33260 et seq. 1
In the consolidated cases of Palo Alto Unified School
District and Jefferson Union High School District (1/9/79) PERB
Decision No. 84 the Board, by majority vote, established a
separate unit of substitute teachers. That decision was
principally founded on the conclusion that the authorization of
such units was essential to avoid "potential disruption" of
relationships between the District and the exclusive
representatives of existing units of "regular"
The facts here are somewhat different. CTA, the
petitioner, represents two existing units, one of regular,
full-time teachers (hereafter regular teachers) and another of
children's center teachers. The latter unit was established
upon a finding that regular teachers and children's center
Harry 	Gluck,
	Chairperson, 	concurring
in
	result:
I
	would
	dismiss 	the
	petition
	for
	a
	separate
	unit
	of
substitutes
	with
	leave 	to
	petitioner
	to
	file
	a
	request 	for
	unit
modification
	under 	Board
	rule
	33260
	et
	seq.I
In
	the 	consolidated 	cases
	of
	Palo 	Alto 	Unified
	School
District
	and
	Jefferson
	Union
	High
	School
	District
	(1/9/79)
	PERB
Decision
	No. 	84
	the
	Board,
	by
	majority 	vote,
	established
	a
separate 	unit
	of
	substitute
	teachers.
	That
	decision
	was
principally
	founded
	on
	the 	conclusion
	that
	the
	authorization 	of
such
	units
	was
	essential
	to
	avoid
	"potential
	disruption"
	of
relationships
	between
	the
	District
	and
	the
	exclusive
representatives
	of
	existing
	units 	of 	teachers. In	
"regular" 	teachers.
	In
Palo
	Alto,
	an 	employee
	organization 	other
	than 	the
	petitioner
represented
	the
	regular
	unit,
	though
	in
	Jefferson,
	the
petitioner
	also 	represented 	the 	regular
	unit.
	In 	each
	case,
long-term 	negotiated
	agreements
	were
	in 	force 	in 	the
	previous
established units.	
establ
	hed
	units.
The
	facts
	here 	are
	somewhat
	different.
	CTA,
	the
petitioner,
	represents
	two
	existing 	units,
	one
	of 	regular,
full-time 	teachers 	(hereafter
	regu
	r
	teachers)
	and
	another
children's 	center 	teachers.
	latter
	unit
	was
	esta
	is
upon 	a	
fi
	ing
	that 	regular 	teachers	
and	
chi
	's
	center
8
Palo Alto, an employee organization other than the petitioner
represented the regular unit, though in Jefferson, the
petitioner also represented the regular unit. In each case,
long-term negotiated agreements were in force in the previously
lifornia 	nistrative
	,
	tit
	8, 	sections
33260-33266.
1California Administrative Code, title 8, sections
33260-33266.

teachers lacked sufficient community of interest to include
both groups in one unit. See Oakland Unified School District
(3/28/77) EERB Decision No. 15. Each of these units is covered
by an agreement expiring on June 30, 198
It is also relevant to note that the PERB order in
Palo Alto/Jefferson was dated January 9, 1979, prior to the
effective date of unit modification rules adopted by the
3
In the present case, three separate "categories" of
substitute teachers are identified in the record: regular
teacher substitutes, children's center substitutes and adult
education substitutes. Further, there is evidence that
2
adult e
employees other than those in the existing units and the
substitutes included in its current petition. No hearing has
yet been held on AFT's petition. The possibility is thus
raised that the District, should CTA's present petition be
granted, will eventually be obligated to negotiate substitute
and nonsubstitute teachers' issues, not only in separate units
but with separate employee organizations. Obviously, evidence
as to the impact of such an obligation on operational
efficiency is not before the Board. I do consider the question
as further justification for the conclusion reached and the
order I would recommend.
3
9
teachers
	lacked
	sufficient
	community
	of
	interest
	to
	include
both
	groups
	in
	one
	unit.
	See Oakland
	Unified
	School
	District
(3/28/77)
	EERB
	Decision
	No.
	15.
	Each
	of 	these
	units
	is
	covered
by
	an
	agreement
	expiring
	on
	June
	30,
	1980.	0.2	
2
It
	is
	also 	relevant 	to
	note
	that
	the
	PERB
	order 	in
Palo
	Alto/Jefferson
	was
	dated
	January
	9,
	1979,
	prior
	to
	the
effective
	date 	of
	unit
	modification
	rules
	adopted
	by
	the
Board.
3
In
	the
	present 	case, 	three 	separate 	"categories" 	of
substitute
	teachers 	are
	identified
	in 	the 	record: 	regular
teacher
	substitutes, 	children's
	center
	substitutes
	and
	adult
education
	substitutes.
	Further, 	there
	is
	evidence
	that
2Notice is taken of PERB's records which indicate that	
Notice
	is
	taken 	of
	PERB
1 s
	records
	which
	indicate 	that
the United Teachers of Oakland, AFT (hereafter AFT) has filed a	
the
	United 	Teachers
	of
	Oakland,
	AFT
	(hereafter
	AFT)
	has
	filed
	a
petition for a unit of "all certificated hourly, noncontracted	
petition
	for
	a
	unit
	of
	"all 	certificated
	hourly, 	noncontracted
adult ducation teachers", and that CTA has intervened for	
education
	teachers",
	and
	that
	CTA
	has
	intervened 	for
employees
	other
	than 	those 	in 	the
	existing 	units
	and
	the
substitutes
	included
	in
	its
	current
	petition.
	No
	hearing 	has
yet
	been 	held
	on AFT's
	petition.
	The
	possibility 	is
	thus
raised 	that
	the
	District,
	should
	CTA's
	present
	petition
	be
granted, 	will
	eventually
	be
	obligated 	to 	negotiate
	substitute
and
	nonsubstitute 	teachers' 	issues,
	not 	only
	in 	separate
	units
but 	with
	separate
	employee
	organizations.
	Obviously, 	evidence
as
	to 	the
	impact
	of
	such 	an
	obligation
	on
	operational
efficiency 	is
	not 	before 	the
	Board.
	I 	do
	consider 	the 	questionas
	further
	justification
	for 	the 	conclusion 	reached
	and
	theorder
	I 	would 	recommend.
3These rules have since been modified and adopted as	These
	rules
	have
	since
	been modified
	and
	adopted 	as
emergency measures effective on 6/14/79. California	
emergency 	measures
	effective
	on
	6/14/79. 	CaliforniaAdministrative	Administrative Code, title 8, sections 33260-33266, supra at	Code,
	tit
	8, 	sections
	33260-33266,	
~~~ 	at
fn.	fn. 1.
1.
9
Board.

regular teachers are also employed as substitutes from time to
time.
The hearing officer, in proposing a unit of all
substitutes, found a sufficient community of interest among the
three categories. In view of Oakland Unified School District,
supra, EERB Decision No. 15, two related questions are raised
by that finding: do substitutes assume the
community-of-interest characteristics enjoyed by those whom
they replace, or are their interests sufficiently disparate
from those of regular teachers to mandate unit segregation?
The hearing officer did not consider the question of
community between the various teachers and their substitutes,
since the parties did not pursue that issue. The record
nevertheless contains sufficient evidence to conclude that such
a community of interest does indeed exist. The District
described the duties and working conditions of substitutes in
considerable detail. Furthermore, exhibits in the record,
10
substitutes 	actually 	cross 	categorical 	lines 	and 	that 	some
regular 	teachers 	are 	also 	employed 	as 	substitutes 	from 	time 	to
time.
substitutes actually cross categorical lines and that some
The 	hearing 	officer, 	in 	proposing 	a 	unit 	of 	all
substitutes, 	found 	a 	sufficient 	community 	of 	interest 	among 	the
three 	categories. 	In 	view 	of 	Oakland 	Unified 	School 	District,
supra, 	EERB 	Decision 	No. 	15, 	two 	related 	questions 	are 	raised
by 	that 	finding: 	do 	substitutes 	assume 	the
community-of-interest 	characteristics 	enjoyed 	by 	those 	whom
they 	replace, 	or 	are 	their 	interests 	sufficiently 	disparate
from 	those 	of 	regular 	teachers 	to 	mandate 	unit 	segregation?
The 	hearing 	officer 	did 	not 	consider 	the 	question 	of
community 	between 	the 	various 	teachers 	and 	their 	substitutes,
since 	the 	parties 	did 	not 	pursue 	that 	issue. 	The 	record
nevertheless 	contains 	sufficient 	evidence 	to 	conclude 	that 	such
a 	community 	of 	interest 	does 	indeed 	exist. 	The 	District
described 	the 	duties 	and 	working 	conditions 	of 	substitutes 	in
considerable 	detail. 	Furthermore, 	exhibits 	in 	the 	record,
especially 	the 	substitutes' 	"handbook" 	published 	by 	the
District, 	support 	the 	conclusion 	that 	a 	community 	of 	interest
does 	exist. 	The 	facts 	in 	this 	case 	are 	comparable 	to 	those 	in
Palo Alto/Jefferson 	wherein 	the 	Board 	majority 	reached 	the
conclusion 	that 	substitutes 	are 	employees 	under 	the 	EERA. 	The	The
finding 	there, 	as 	I 	find 	here, 	is 	that 	substitutes 	are 	an
integral 	part 	of 	the 	instructional 	function 	of 	the 	District,
10
especially the substitutes' "handbook" published by the
District, support the conclusion that a community of interest
does exist. The facts in this case are comparable to those in
Palo Alto/Jefferson wherein the Board majority reached the
conclusion that substitutes are employees under the EERA.
finding there, as I find here, is that substitutes are an
integral part of the instructional function of the District,

performing the same work and under the same general conditions
as do the teachers they replace. They teach the same courses,
deal with the same students and perform, as circumstances
require, virtually all of the replaced teachers' duties. As
The primary question is whether an employee brought in to
fill the vacancy of an absent member of a bargaining unit
should be placed in a different unit. Only extraordinary
circumstances would justify creating a separate unit for those
substitute workers.
Even though the hearing officer's finding of community
among the various substitutes may be correct, it is not
inconsistent with a finding that a community of interest also
exists between substitutes and the teachers for whom they
substitute, making that combination a more appro
4 	and Wagnall's Standard College Dictionary (1973)
p. 1335.
11
performing
	the
	same 	work
	and
	under
	the
	same
	general
	conditions
as
	do
	the
	teachers
	they
	replace.
	They
	teach 	the
	same
	courses,
deal 	with 	the
	same
	students
	and
	perform,
	as
	circumstances
require,
	virtually
	all
	of
	the 	replaced
	teachers' 	duties.
	As
the 	hearing
	officer
	found,
	"fa]
	substitute 	is
	supposed
	to
assume
	the
	role
	of
	the 	absent
	regular 	teacher
	as 	completely 	as
possible."
	(Proposed
	decision, 	p. 	7.)
	The
	very
	word
"substitute",
	defined
	as
	"one
	who
	takes
	the
	place 	of
another",
4
es
A question remains as to whether inclusion of substitutes
tifies to such community.
the hearing officer found, "[al substitute is supposed to
assume the role of the absent regular teacher as completely as
possible. " (Proposed decision, p. 7.) The very word
"substitute", defined as "one who takes the place of
another",* t
basis, the most significant differences are the availability
On a day-to-day
and frequency of employment.
testifies
	to
	such
	community.
	On
	a
	day-to-day
basis,
	the
	most
	significant
	differences
	are 	the
	availability
and
	frequency
	of
	employment.
The
	primary
	question
	is
	whether
	an
	employee
	brought 	in
	to
fill
	the
	vacancy
	of
	an
	absent
	member
	of
	a
	bargaining
	unit
should
	be
	placed 	in
	a
	different 	unit.
	Only
	extraordinary
circumstances
	would
	justify
	creating
	a
	separate 	unit
	for 	those
substitute
	workers.
Even
	though
	the 	hearing
	officer's
	finding 	of
	community
among
	the 	various
	substitutes
	may
	be
	correct,
	it
	is
	not
inconsistent
	with
	a
	finding
	that
	a 	community
	of
	interest 	also
exists
	between
	substitutes
	and
	the 	teachers 	for
	whom
	they
substitute,
	making
	that
	combination
	a 	more	priate unit.	
app
	iate 	unit.
A
question
	remains 	as
	to
	whether
	inclusion 	of
	substitutes
in the existing units would create the "potential for
disruption" the Board was concerned with in
Palo Alto/Jefferson. 	There is no evidence here that such would
4Funk	Funk and 	Wagnall's 	Standard 	College 	Dictionary 	(1973)
p. 	1335. 
11
in 	the 	existing 	units
	wou
	create
	i
disr 	tion" 	the
	was
	concer 	with
	in
Palo 	Alto/Jefferson.
	There
	is
	no
	evidence 	here 	that
	such 	would

be the case. 	The collective agreements presently in effect
will expire in June 1980. Negotiation of supplementary
agreements covering substitutes would impose no greater burden
on the parties than would negotiating a separate agreement for
them should a comprehensive substitute unit be established.
Nor, in the future, would a single set of negotiations for
permanent employees in each of the existing units and their
substitutes present greater potential for disruption or have a
more adverse impact on operational efficiency than would
bifurcated negotiations based on unit segregation.
In this case the record reflects some crossing of categorical
lines by the substitutes and regular teachers who also act as
substitutes. 	Thus, a separate unit of substitutes would lead
to individual regular teachers being placed in two or more
negotiating units and being covered eventually by two or more
agreements. I do not see this possibility as beneficial to the
efficiency of District operations.5 While thi 	may still
occur if the substitutes are added to the existing units, there
is in such a possibility at least no greater potential for harm.
For these reasons, I would dismiss the petition for a
5
12
be
	the
	case.
	The
	collective
	agreements
	presently
	in
	effect
will
	expire 	in
	June
	1980.
	Negotiation 	of
	supplementary
agreements
	covering
	substitutes
	would 	impose 	no
	greater
	burden
on
	the
	parties
	than
	would
	negotiating
	a
	separate
	agreement
	for
them
	should
	a
	comprehensive
	substitute
	unit
	be
	established.
Nor,
	in
	the
	future,
	would
	a
	single
	set
	of
	negotiations
	for
permanent 	employees
	in
	each
	of
	the
	existing 	units
	and
	their
substitutes
	present 	greater 	potential
	for
	disruption
	or
	have
	a
more
	adverse
	impact
	on
	operational 	efficiency
	than
	would
bifurcated 	negotiations
	based
	on
	unit 	segregation.
In
	this
	case 	the 	record
	reflects
	some
	crossing 	of
	categorical
lines	
by	
the
	substitutes
	and
	regular 	teachers
	who
	also 	act
	as
substitutes.
	Thus,
	a
	separate 	unit 	of
	substitutes
	would
	lead
to 	individual 	regular 	teachers
	being 	placed 	in
	two
	or
	more
negotiating 	units
	and
	being 	covered
	eventually	
by	
two
	or
	more
agreements.
	I 	do
	not 	see
	this 	possibility
	as
	beneficial 	to
	the
efficiency
	of
	District
	operations.s
5	
While
	this
	may
	still
occur
	if
	the
	substitutes
	are
	added
	to 	the
	existing 	units, 	there
is
	in
	such
	a
	possibility 	at 	least
	no
	greater 	potential
	for
	harm.
For
	these 	reasons,
	I 	would
	dismiss 	the
	petition	
for	
a
separate 	substitute 	unit
	as
	inappropriate 	in
	light
	of	
the
5See Government Code section 3543.5 (a) which specifies
of 	operations 	as
	one
	criteria
	to
	be
	considered
	by
the
	Board	
in 	unit 	determinations.
see 	Government
12
separate substitute unit as inappropriate in light of the
Code
	section
	3543.S(a) 	which
	specifies
efficiency	efficiency of operations as one criteria to be considered by
the Board in unit determinations.

Board's previous holding in Oakland Unified School District,
supra, EERB Decision No. 15, the evidence of an existing
community of interest among substitutes and the employees for
whom they fill in, and the absence of evidence indicating that
such a separate unit is necessary to avoid disruption in
employee relations or to protect the efficiency of District
operations. Dismissal would be with leave to CTA to file
petitions for unit modification to include substitutes in the
appropriate comparable existing units. I would also direct the
general counsel to consolidate the hearings on such petitions,
if filed, with the hearing of AFT's petition, should he find
overlapping issues. 6
The dissenting opinion of Board Member Moore begins on page 14.
6
13
Board's 	previous
	holding
	in
	Oakland
	Unified
	School
	District,
supra,
	EERB
	Decision
	No.
	15,
	the
	evidence
	of
	an
	existing
community
	of
	interest
	among
	substitutes
	and
	the
	employees
	for
whom
	they
	fill
	in,
	and
	the
	absence
	of
	evidence
	indicating
	that
such
	a
	separate
	unit 	is
	necessary 	to
	avoid
	disruption
	in
employee
	relations
	or
	to
	protect
	the
	efficiency 	of
	District
operations.
	Dismissal
	would
	be
	with
	leave
	to
	CTA
	to
	file
petitions
	for
	unit
	modification 	to 	include
	substitutes
	in 	the
appropriate
	comparable
	existing 	units.
	I
	would
	also
	direct
	the
general
	counsel
	to 	consolidate
	the 	hearings
	on
	such
	petitions,
if 	filed,
	with
	the 	hearing 	of
	AFT's
	petition,
	should
	he
	find
overlapping
	issues.6
Harry Gluck, Chairperson	
Chair'person
/1
1122,
	sB
tr;-
l3SNc~
,"
a
	proposed
	amendment
	to
	EERA
	currently
	under
The
	dissenting 	opinion 	of
	Board
	Member 	Moore
	begins
	on
	page
	14.
6SB 1122, a proposed amendment to EERA currently under
consideration,
	would 	amend
	section
	3545
	to 	prohibit 	units 	ofonly
	substitutes.
	By
	noticing 	this 	matter,
	I 	do
	not 	imply
	that
a
	proposed
	amendment
	to
	an
	existing 	statute
	may 	be
	consideredas 	evidence 	of
	legislative 	intent.
	I 	do
	note,
	however,
	that
	on
the
	one 	hand
	the 	conclusion
	I
	reach 	here
	would 	conform
	to
legislative
	requirements 	should
	that
	amendment
	pass;
	on
	theother 	hand,
	that
	amendment's
	failure
	would
	not
	make
	thisconclusion 	inconsistent 	with 	current 	legislative 	direction.
13
consideration, would amend section 3545 to prohibit units of
only substitutes. By noticing this matter, I do not imply that
a proposed amendment to an existing statute may be considered
as evidence of legislative intent. 	I do note, however, that on
the one hand the conclusion I reach here would conform to
legislative requirements should that amendment pass; on the
other hand, that amendment's failure would not make this
conclusion inconsistent with current legislative direction.

I agree with the holding in Palo Alto/Jefferson, supra,
that substitutes are employees under the Educational Employment
Relations Act (hereafter the Ac 	at case,
the Board examined section 3540.1(j) of the Act which defines
the term "employee" as follows:
"Public school employee" or "employee" means
any person employed by any public school
employer except persons elected by popular
vote, appointed by the Governor of this
State, management employees, and
confidential employees.
Noting first that substitute teachers are not specifically
excluded from coverage under the section, the Board examined
cational Employment Relations Act is codified at
Govern 	ode section 3540, et seq. 	All section references
herein are to the Government Code.
-14-
Barbara
	D.
	Moore,
	Member, 	d
i.ssenting:	Barbara D. Moore, Member, dissenting:
I
	would
	affirm
	the 	hearing
	officer's
	decision 	to
	establish
a
	separate 	unit
	of
	substitutes
	as
	requested
	by
	the
	petitioner,
Oakland
	Education
	Association,
	CTA/NEA
	(hereafter
	OEA
	or
	CTA).
In 	reaching
	his 	decision,
	the 	hearing
	officer 	relied
	on
	the
consolidated 	cases 	of 	Palo 	Alto 	Unified
	School
	District
	and
Jefferson
	Union 	High
	School
	District
	(1/9/79),
	PERB
	Decision
No.
	84.
	I
	do
	not
	believe 	there
	are
	sufficient
	differences
between
	the
	facts
	in
	that
	decision
	and
	those 	in 	the
	instant
case 	to
	warrant
	a
	different
	conclusion.
I
	agree 	with 	the 	holding
	in
	Palo
	Alto/Jefferson. 	supra,
that 	substitutes
	are
	employees 	under
	the 	Educational
	Employment
Relations
	Act
	(hereafter
	the
	Act
	or
	EERA)
. 1	
In
	that 	case,
the
	Board 	examined
	section
	3540.l(j} 	of 	the
	Act 	which
	defines
the
	term 	"employee"
	as 	follows:
"Public 	school
	employee"
	or
	"employee" 	means
any
	person
	employed
	by 	any
	public
	school
employer
	except 	persons
	elected	
by	
popular
vote, 	appointed
	by
	the
	Governor
	of
	thisState,
	management
	employees,
	and
confidential
	employees.
Noting
	first
	that 	substitute	
teachers 	are 	not
	specifically
excluded
	from
	coverage 	under 	the
	section, 	the
	Board 	examined
1TThe	
Educational
	Employment
	Relations
	Act
	is 	codified 	at
Government 	Code	
section 	3540,
	et 	seq. 	All 	section 	references
herein 	are 	to 	the 	Government 	Code.
ment C
he Edu
-14-
t or EERA) . ! In th
I would affirm the hearing officer's decision to establish
a separate unit of substitutes as requested by the petitioner,
Oakland Education Association, CTA/NEA (hereafter OEA or CTA) .
In reaching his decision, the hearing officer relied on the
consolidated cases of Palo Alto Unified School District and
Jefferson Union High School District (1/9/79) , PERB Decision
No. 84. I do not believe there are sufficient differences
between the facts in that decision and those in the instant
case to warrant a different conclusion.

the role of substitutes and concluded that substitutes "as a
class form an integral, essential component of the
instructional staffing program. " The Board decided that the
"continuing role" and the "important staffing function"
performed by substitutes provided a substantial basis for
finding that the coverage and representational rights of the
EERA were meant to apply to these employees. I agree with that
result.
Having determined that substitutes are employees under the
Act, the next question is the appropriateness of the unit of
substitutes petitioned for herein. Were the Board to apply the
policy established in Peralta Community College School District
(11/17/78) PER
modification in the future implies that this option was
-15-
the
	role
	of
	substitutes
	and
	concluded
	that
	substitutes
	"as
	a
class
	form 	an
	integral, 	essential
	component
	of
	the
instructional 	staffing
	program."
	The
	Board
	decided
	that
	the
"continuing
	role"
	and
	the 	"important
	staffing
	function"
performed	
by	
substitutes
	provided
	a
	substantial
	basis
	for
finding
	that
	the 	coverage
	and
	representational
rights
	of 	the
EERA
	were 	meant
	to
	apply
	to 	these
	employees.
	I
	agree 	with
	that
result.
Having
	determined
	that 	substitutes
	are
	employees 	under
	the
Act,
	the 	next
	question
	is
	the 	appropriateness 	of 	the
	unit
	of
substitutes 	petitioned
	for
	herein.
	Were
	the
	Board
	to
	apply 	the
policy 	established 	in
	Peralta
	Community
	College
	School
	District
(11/17/78)
	PERBB Decision No. 77, there would be a rebuttable
presumption
	that 	substitutes
	would
	not
	be
	placed 	in
	a
	unit
separate
	from
	other
	teachers.
	However,
	based
	on
	the
	specific
factual
	circumstances 	in 	Palo
	Alto/Jefferson,
	the
	Board
declined 	to
	follow
	Peralta
	because
	it
	determined
	that
retroactive 	application 	of
	that
	decision
	would
	disrupt 	the
parties'
	existing 	relationships.
	In 	analyzing
	this
	case,
	I
find
	no
	reason
	to
	speculate
	whether
	a
	possi 	future 	unit 	of
stitutes
	and
	teachers 	they 	ace
	wou 	e 	a
	greater
potential
	for 	disruption
	than 	the 	separate 	unit 	of
	substitutes
as 	requested 	herein.2	Rather, the instant case arose in
2 Dismissing the petition with leave to request unit
modification 	in 	the 	future 	implies 	that 	this 	option
	was
D1sm1ss1ng	2
Rather, 	the 	instant
	case 	arose 	in
-15-
Decisi.on
	No.'
	77, 	there
	would
	be
	a
	rebuttable
presumption that substitutes would not be placed in a unit
separate from other teachers. However, based on the specific
factual circumstances in Palo Alto/Jefferson, the Board
declined to follow Peralta because it determined that
retroactive application of that decision would disrupt the
parties' existing relationships. In analyzing this case, I
find no reason to speculate whether a possible future unit of
substitutes and the teachers they replace would pose a greater
potential for disruption than the separate unit of substitutes
as requested herein. 2
· 	· 	. 	t h e
	pet1t1on
	. 	.
	wit.
	. 	h
	leave 	to 	request 	unit
	.

substantially the same factual context and warrants the same
analysis as Palo Alto/Jefferson where the factors considered by
the Board were: the existence of negotiating units which
specifically excluded substitutes, the existence of contracts
between the districts and the exclusive representatives, and
the existence of recognition clauses in those contracts that
specifically excluded substitutes.
The same factors are present in the instant case.
Negotiating units which exclude substitutes have been
established in the Oakland Unified School District. (See
Oakland Unified School District, 3/28/77 EERB Decision
No. 15.) Contracts are in existence covering employees
designated as units A and B. These contracts include
heretofore unavailable to petitioner. Although the specific
requirements have varied, there have been provisions for unit
changes as early as July 6, 1976. (See California
Administrative Code, tit. 8, section 33260, enacted in July
1976, and amended November 1978, February 1979 and July 1979.)
Without speculating as to how this Board would have treated a
request for unit modification from OEA, I find it persuasive
O
-16-
substantially
	the
	same
	factual
	context
	and
	warrants 	the
	same
analysis
	as
	Palo
	Alto/Jefferson
	where
	the
	factors
	considered
	by
the
	Board 	were:
	the
	existence
	of 	negotiating
	uni
ts
	which
specifically
	excluded
	substitutes,
	the 	existence 	of
	contracts
between
	the
	districts
	and
	the
	exclusive
	representatives,
	and
the 	existence 	of 	recognition 	clauses
	in 	those
	contracts
	that
specifically
	excluded
	substitutes.
heretofore 	unavailable 	to
	petitioner.
	Although
	the
	specific
requirements
	have
	varied, 	there
	have
	been
	provisions 	for
	unit
changes 	as
	early
	as
	July
	6,
	1976.
	(See
	CaliforniaAdministrative
	Code,
	tit.
	8,
	section
	33260,
	enacted
	in 	July
1976,
	and 	amended 	November
	1978, 	February
	1979 	and
	July
	1979.)Without
	speculating
	as
	to
	how
	this
	Board 	would 	have
	treated
	a
request
	for
	unit 	modification
	from
	OEA,
	I
	find
	it
	persuasive
that
	OEA
	did 	not 	submit 	such
	a
	request
	and
	as
late
as
	July,
1979,
	in
	its
	petition
	for
	intervention,
	appears 	to
	have
reaffirmed
	its
	desire 	for
	a
	separate 	unit 	of
	substitutes.
The 	same
	factors
	are
	present
	in 	the
	instant
	case.
Negotiating
	units
	which
	exclude
	substitutes
	have
	been
established
	in 	the
	Oakland
	Unified
	School
	District.
	(See
Oakland
	Unified
	School
	District,
	3/28/77
	EERB
	Decision
No.
	15.)
	Contracts 	are 	in 	existence
	covering
	employees
designated
	as
	units
	A and 	B. 3	
These
	contracts
	include
3oEA
	currently 	represents
	Unit
	A, 	which
	includes
	all
classroom teachers, teachers on special assignments,
counselors,
	librarians,
	nurses, 	psychologists
	and
	adulteducation 	teachers
	under
	contract.
	Unit
	A
specifically
substitutes.
	OEA
	so
	resents 	Unit
	B, 	whi
includes children's center teachers, teacher assistants and
This unit also specifically excludes
substitutes.
EA currently represents Unit A, which includes all
assroom
	teachers, 	teachers
	on
	special
	assignments,
counselors, librarians, nurses, psychologists and adult
education teachers under contract. Unit A specifically
excludes substitutes. OEA also represents Unit B, which
i
	children's 	center 	teachers, 	teacher
	assistants
	and
assistant	assistant supervisors.	
rvisors.
	This 	unit 	also 	ifica
	exc 	s
substitutes.
-16-
that OEA did not submit such a request and as late as July,
1979, in its petition for intervention, appears to have
reaffirmed its desire for a separate unit of substitutes.

recognition clauses that specifically exclude substitutes. 	The
agreements expire on June 30, 1980, the same date the contracts
expired in Palo Alto/Jefferson, supra.
In this case, the petitioner OEA represents the employees
in the units of regular classroom teachers (K-12) , adult
education teachers under contract and regular teachers in the
children's centers. The chairperson noted that in the Palo
Alto case an employee organization other than the petitioner
-17-
recognition 	clauses
	that
	specifically
	exclude
	substitutes.
	The
agreements
	expire
	on
	June 	30, 	1980,
	the
	same
	date 	the
	contracts
expired 	in 	Palo
	Alto/Jefferson,
	supra.
In
	this
	case,
	the
	petitioner
	OEA
	represents
	the
	employees
in
	the
	units
	of
	regular
	classroom
	teachers
	(K-12),
	adult
education 	teachers
	under
	contract
	and
	regular 	teachers 	in 	the
children's
	centers.
	The
	chairperson
	noted
	that
	in 	the 	Palo
Alto 	case
	an 	employee
	organization 	other
	than 	the
	petitioner
represented
	the
	employees
	in 	the
	regular 	teachers
	unit.
	While
the 	hearing
	officer
	in
	Palo 	Alto 	did 	find
	that
	the
	Substitute
Teachers' 	Section
	was 	an
	employee
	organization
	distinct
	from
the
	Palo 	Alto 	Educators
	Association
	with
	which
	it
	was
affiliated,
	the
	organizational
	identity
	of
	the
	petitioner
	was
not
	cited
	as
	an
	element
	in 	the 	Board's
	rationale
	for
	its
disposition
	of 	the 	case. 	Neither
	is
	it
	central
	to
	my
	analysis
here.
	It
	is
	the 	existence 	of
	units
	under
	contract 	that
	most
aptly
	foretells
	disruption,
	not
	whether
	the
	petitioner
represents 	those
	units.
--
represented the employees in the regular teachers unit. While
the hearing officer in Palo Alto did find that the Substitute
Teachers' Section was an employee organization distinct from
the Palo Alto Educators Association with which it was
affiliated, the organizational identity of the petitioner was
not cited as an element in the Board's rationale for its
disposition of the case. Neither is it central to my analysis
here. It is the existence of units under contract that most
aptly foretells disruption, not whether the petitioner
represents those units.
I
	join
	my
	colleagues 	in 	taking
	official
	notice 	of 	the
	fact
that 	recognition 	of
	a
	unit 	of
	certificated,
	non-contracted
adult
	school 	teachers
	was
	requested 	by 	the 	United 	Teachers 	of
Oakland,
	AFT
	Local 	777, 	on 	June 	11, 	1979.
	OEA
	intervened
	on
June 	21, 	1979, 	requesting
	a
	unit 	of
	certificated
	hourly
employees
	specifically
	excluding 	those 	employees
	in 	units
	A and
B
outlined
	above 	as 	well 	as 	the 	substitutes
	which 	comprise 	the
.
I join my colleagues in taking official notice of the fact
.
-17-
that recognition of a unit of certificated, non-contracted
adult school teachers was requested by the United Teachers of
Oakland, AFT Local 777, on June 11, 1979. OEA intervened on
June 21, 1979, requesting a unit of certificated hourly
employees specifically excluding those employees in units A and
B outlined above as well as the substitutes which comprise the

Following the Board's precedent in Palo Alto/Jefferson, I
find that the retroactive application of the Peralta
presumption is unwarranted in the instant case. It now remains
to determine if a unit of substitutes as petitioned for is
appropriate in light of the criteria set forth in sec-
tion 3545 (a) of the EERA. 4 I 	m in agreement with the
hearing officer's proposed decision which finds that regular
substitute teachers, children's center substitutes and adult
education substitutes share a community of interest. 	The
Government Code section 3545 (a) provides in pertinent
(a) In each case where the appropriateness
of the unit is an issue, the board shall
decide the question on the basis of the
community of interest between and among the
employees and their established practices
including, among other things, the extent to
which such employees belong to the same
employee organization, and the effect of the
size of the unit on the efficient operation
of the school district.
-18-
unit
	requested
	herein.
	I 	do
	not
	find,
	however,
	that
	the
	lack
of
	an
	established 	unit
	of 	non-contracted
	adult
	education
teachers
	is 	sufficient
	cause
	to
	reach
	a
	result 	different
	from
that
	in
	Palo
	Alto/Jefferson,
	since
	as
	to 	regular
	classroom
teachers
	(K-12),
	adult
	education
	teachers
	under
	contract
	and
children's
	center 	teachers,
	potential
	disruption
	is
	envisioned
because
	established,
	recognized
	units
	exclusive 	of
	substitutes
are 	in 	place
	and
	under
	contract.
unit requested herein. I do not find, however, that the lack
of an established unit of non-contracted adult education
teachers is sufficient cause to reach a result different from
that in Palo Alto/Jefferson, since as to regular classroom
teachers (K-12) , adult education teachers under contract and
children's center teachers, potential disruption is envisioned
because established, recognized units exclusive of substitutes
are in place and under contract.
Following
	the 	Board's 	precedent 	in
	Palo
	Alto/Jefferson,
	I
find
	that
	the
	retroactive 	application
	of 	the
	Peralta
presumption
	is
	unwarranted
	in
	the
	instant
	case.
	It
	now
	remains
to
	determine
	if
	a
	unit
	of
	substitutes
	as
	petitioned
	for
	is
appropriate 	in
	light
	of 	the
	criteria
	set
	forth 	in 	sec-
tion	
3545(a)
	of
	the
	EERA.
4a 	I
	am
	in
	agreement
	with 	the
hearing
	officer's
	proposed
	decision
	which
	finds
	that
	regular
substitute
	teachers,
	children's
	center
	substitutes
	and
	adult
education
	substitutes
	share
	a 	community
	of
	interest.
	The
4Government 	Code
	section
	3545(a)
	provides 	in
	pertinent
part:	
part:
(a)
	In 	each
	case
	where
	the 	appropriateness
of 	the 	unit 	is
	an
	issue, 	the 	board
	shall
decide 	the 	question
	on
	the
	basis 	of 	the
community
	of
	interest
	between 	and 	among
	theemployees 	and
	their 	established 	practicesincluding,	
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.
-18-

record shows similarities among substitutes with regard to
hiring procedures, working conditions, supervision,
qualifications, duties and responsibilities, and evaluation
procedures. The hearing officer's detailed analysis of
these factors, based on the testimony introduced at the
hearing, provides persuasive support for establishing a
separate unit of substitutes and is incorporated herein.
reject, as did the majority in Palo Alto/Jefferson, the
assertion that because of the alleged "casual" nature of the
substitutes' working relationship with the Oakland School
District, the petitioned-for unit should be denied. Consistent
with applicable decisions arising under the National Labor
Relations Act (hereafter the NLRA) , I find that, as a class,
substitutes have a reasonable expection of re-employment based
on the District's continuing need for the services of
substitutes. (Trans World Airlines, Inc. (1974) 211 NLRB 733
[86
"I
-19-
I
record
	shows
	similarities
	among
	substitutes
	with
	regard
	to
hiring
	procedures,
	working
	conditions, 	supervision,
qualifications,
	duties
	and
	responsibilities,
	and
	evaluation
procedures.
5 	The
	hearing
	officer's
	detailed
	analysis
	of
these
	factors,
	based
	on
	the
	testimony 	introduced
	at
	the
hearing,
	provides 	persuasive
	support 	for
	establishing
	a
separate 	unit
	of
	substitutes
	and
	is
	incorporated 	herein.
	I
reject,
	as
	did 	the
	majority 	in
	Palo
	Alto/Jefferson,the
assertion 	that
	because
	of 	the 	alleged 	"casual" 	nature 	of
	the
substitutes'
	working
	relationship
	with 	the
	Oakland 	School
District,
	the
	petitioned-for 	unit
	should
	be
	denied.
	Consistent
with
	applicable 	decisions 	arising
	under
	the 	National
	Labor
Relations
	Act
	(hereafter 	the
	NLRA), 	I
	find
	that,
	as
	a
	class,
substitutes
	have
	a
	reasonable 	expect ion
	of re-employment
	based
on
	the
	District's
	continuing
	need
	for 	the
	services 	of
substitutes.
	(Trans
	World
	Airlines,
	Inc.
	(1974) 	211 	NLRB 	733
[86
	LRRM
	1434);
	Wm.
	J.
	Keller,
	Inc.
	(1972)
	198
	NLRB
	1144 	[81
LRRM
	1048]
.)
	Moreover,
	I
	find
	that
	the
	flexibility
	and
irregularity
	of 	the
	substitutes'
	service 	for 	the
	district
characterizes
	common
	concerns 	not 	shared 	by 	regular 	teachers
and
	underscores 	the	
community
	of
	interest	
that 	they
	share.
5	
note
	that 	in 	excluding 	both
	children's 	center	
and 	K-12
substitutes
	from
	the 	unit 	of 	regular 	full-time 	certificated
employees 	in
	Oakland 	Unified 	School
	District,
	No.
	15, 	the 	Board
found
	that 	these
	two
	groups 	of
	substitutes'
	working
	conditions
were
	essentially 	the
	same.
note that in excluding both children's center and K-12
substitutes from the unit of regular full-time certificated
employees in Oakland Unified School District, No. 15, the Board
found that these two groups of substitutes' working conditions
were essentially the same.
r
-19-
LRRM 1434] ; Wm. J. Keller, Inc. (1972) 198 NLRB 1144 [81
LRRM 1048].) Moreover, I find that the flexibility and
irregularity of the substitutes' service for the district
characterizes common concerns not shared by regular teachers
and underscores the community of interest that they share.

Chairperson Gluck recognizes these common concerns since he
notes that "the most significant differences" between the
regular teachers and the substitute teachers are their
"availability and frequency of employment. " Likewise, were
Dr. Gonzales to grant substitute teachers coverage under the
EERA, his opinion advises that the substitutes' community of
interest warrants their placement in a separate unit.
With regard to the District's argument that establishment
of a unit of substitutes would impair the District's efficiency
of operations, I find that the District seems to object to any
action granting collective negotiating rights to substitutes
rather than offering factually supported evidence of
proliferated units. I note with approval the hearing officer's
finding that the comprehensive substitute unit, rather than
three separate units, may well work to further the efficiency
of the District's operations.
Finally, I do not find that the formation of the substitute
unit is impeded by the fact that some full-time teachers may
also act as substitutes and, as a result, may be members of two
units and eventually may be covered by two negotiated
agreements. Such an argument ignores the basic tenet of labor
law which focuses questions concerning appropriateness of units
on the employment classification or position, and the working
conditions which attach thereto, rather than on the specific
individual employees who occupy those positions. 	In
-20-
Chairperson
	Gluck
	recognizes 	these
	common
	concerns
	since
	he
notes
	that
	"the
	most
	significant
	differences"
	between
	the
regular 	teachers
	and
	the
	substitute
	teachers
	are
	their
"availability
	and
	frequency
	of
	employment."
	Likewise,
	were
Dr.
	Gonzales
	to
	grant
	substitute
	teachers
	coverage
	under
	the
EERA,
	his
	opinion 	advises
	that
	the
	substitutes'
	community
	of
interest
	warrants
	their
	placement
	in
	a
	separate
	unit.
With
	regard 	to
	the
	District's
	argument
	that
	establishment
of
	a
	unit
	of
	substitutes
	would
	impair
	the
	District's
	efficiency
of
	operations,
	I
	find
	that
	the
	District
	seems
	to
	object 	to
	any
action granting
	collective
	negotiating
	rights
	to
	substitutes
rather
	than
	offering 	factually
	supported 	evidence
	of
proliferated 	units.
	I
	note 	with 	approval 	the 	hearing
	officer's
finding
	that
	the
	comprehensive
	substitute 	unit, 	rather
	than
three 	separate
	units,
	may
	well
	work
	to 	further
	the
	efficiency
of 	the
	District's
	operations.
Finally,
	I 	do
	not 	find
	that
	the 	formation
	of 	the
	substitute
unit
	is
	impeded 	by
	the
	fact 	that
	some
	full-time 	teachers
	may
also 	act
	as
	substitutes
	and, 	as
	a
	result,
	may 	be 	members
	of
	two
units
	and
	eventually
	may
	be 	covered
	by 	two
	negotiated
agreements.
	Such 	an 	argument
	ignores 	the 	basic 	tenet 	of 	labor
law 	which
	focuses 	questions 	concerning 	appropriateness 	of 	units
on
	the
	employment
	classification
	or
	position,
	and 	the 	working
conditions	
which	
attach 	thereto,	
rather 	than
	on	
the	
specific
individual
	employees 	who 	occupy 	those 	positions. 	In
-20-

discussing appropriate bargaining units under the NLRA, Gorman
in Labor Law-Basic Text states:
Several important and sometimes
misunderstood features of this statutory
design should be noted. First, the unit is
comprised of jobs or job classifications and
not of the particular persons working at
those jobs at any given time. 	(P. 66)
The result in this case is consistent with this principle and
in accord with cases under the NLRA holding that individual
employees are appropriately included in a bargaining unit even
Based on the foregoing, I would affirm the hearing
officer's determination that the unit of subtitutes requested
by the petitioner is an appropriate unit based on the criteria
in the EERA and consistent with PERB precedent.
a D. Moore, Member
-21-
discussing 	appropriate
	bargaining
	units
	under
	the
	NLRA,
	Gorman
in
	Labor 	Law-Basic
	Text
	states:
Several
	important
	and
	sometimes
misunderstood
	features
	of
	this 	statutory
design
	should
	be
	noted.
	First,
	the
	unit
	is
comprised
	of 	jobs 	or 	job
	classifications
	and
not 	of
	the
	particular
	persons
	working
	at
those 	jobs
	at
	any
	given 	time.
	(p.
	66)
The
	result
	in
	this
	case
	is
	consistent
	with
	this 	principle
	and
in
	accord 	with
	cases
	under
	the
	NLRA
	holding
	that
	individual
employees
	are
	appropriately
	included 	in
	a
	bargaining
	unit
	even
where
	they 	are
	also
	employed
	by
	another
	employer. 	(Henry Lee	(Henry 	Lee
Co. 	(1972) 	194
	NLRB
	1107 	[79
	LRRM
	1159]; 	All-Work,
	Inc.
	(1971)
193
	NLRB
	918 	[78
	LRRM
	1401]
.)
	To
	suggest
	that
	approving
separate 	negotiating 	units
	which
	may
	have
	individual
	employees
as
	common members 	would
	generate
	conflict
	minimizes
	the
	fact
that,
	even
	if
	placed 	in
	a
	single 	unit,
	any
	agreement 	must
address 	the
	potentially
	divergent
	interests
	urged
	by
	the
regular
	and
	the
	substitute 	unit
	members.
Based
	on
	the 	foregoing,
	I 	would
	affirm 	the 	hearing
officer's
	determination
	that
	the
	unit 	of
	subtitutes
	requested
by
	the
	petitioner 	is
	an
	appropriate 	unit
	based
	on
	the
	criteria
in 	the
	EERA
	and
	consistent
	with
	PERB
	precedent.
By: 	Barbara
	D. 	Moore, 	Member
-21-
By: Barbar
where they are also employed by another employer.
Co. (1972) 194 NLRB 1107 [79 LRRM 1159] ; All-Work, Inc. (1971)
193 NLRB 918 [78 LRRM 1401] .) To suggest that approving
separate negotiating units which may have individual employees
as common members would generate conflict minimizes the fact
that, even if placed in a single unit, any agreement must
address the potentially divergent interests urged by the
regular and the substitute unit members.

ORDER
RE: 	OAKLAND UNIFIED SCHOOL DISTRICT
CASE NO. SF-R-200X
The Public Employment Relations Board has determined and
ordered that:
1. 	The petition filed by the Oakland Education Association,
CTA/NEA, in the Oakland Unified School District,
Case No. SF-R-200X, for a separate unit of substitutes
as described below is hereby dismissed.
2. In the above-captioned case, the following unit is not
appropriate for the purpose of meeting and negotiating:
All certified substitute teachers, who are
on the Oakland Unified School District's
current active list and who have worked in the
current year or the prior year. 	This unit
includes K-12, adult education, and children's
center substitutes.
mployment Relations Board
22
ORDER
RE: 	OAKLAND 	UNIFIED 	SCHOOL 	DISTRICT
CASE 	NO. 	SF-R-200X
The 	Public 	Employment 	Relations 	Board 	has 	determined 	and
ordered 	that:
1. 	The 	petition 	filed 	by 	the 	Oakland 	Education Association,
CTA/NEA, 	in 	the 	Oakland 	Unified 	School 	District,
Case 	No. 	SF-R-200X, 	for 	a 	separate 	unit 	of 	substitutes
as 	described 	below 	is 	hereby 	dismissed.
2. 	In 	the 	above-captioned 	case, 	the 	following 	unit 	is 	not
appropriate 	for 	the 	purpose 	of meeting 	and negotiating:
All 	certified 	substitute 	teachers, 	who 	are
on 	the 	Oakland 	Unified 	School 	District's
current 	active 	list 	and who 	have 	worked 	in 	the
current 	year 	or 	the 	prior 	year. 	This 	unit
includes 	K-12, 	adult 	education, 	and 	children's
center 	substitutes.
Public 	Employment 	Relations 	Board
bw
J. STEPHEN BARBER	BARBER
Executive 	Assistant 	to 	the 	Board
9/25/79
Executive Assistant to the Board
9/25/79
Public E
_{) STEPHEN	J 1
22

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
OAKLAND UNIFIED SCHOOL DISTRICT,
Employer,
Case No. SF-R-588
and
PROPOSED REPRESENTATION
OAKLAND EDUCATION ASSOCIATION, 	DECISION
CTA/NEA ,
chael Sorgen, Legal Adviser for Oakland Unified
School District; Duane Beeson, Attorney (Brundage, Beeson,
Tayer and Kovach) , for Oakland Education Association, CTA/NEA.
Before Michael J. T
On September 1, 1977, the Oakland Education Association,
CTA/NEA (hereafter OEA) filed a request for recognition with
the Board of Education of the Oakland Unified School District
(hereafter District) . The request sought the following unit:
All regular certificated substitute teachers
who work day-to-day, part-time, or
long-term. (Long-term defined as having
worked 20 or more consecutive days.)
All substitutes in Children's Centers and
Adult Day and Evening Schools.
On October 3, 1977, the District filed with the Public
Employment Relations Board, formerly the Educational Employment
Relations Board (hereafter PERB) , its Petition for Board
Investigation asking the Board to determine the appropriateness
of the unit requested by OEA. A formal hearing was conducted
on Novem
STATE
	OF
	CALIFORNIA
PUBLIC	
EMPLOYMENT	
RELATIONS
	BOARD
OAKLAND	
UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
OAKLAND
	EDUCATION 	ASSOCIATION,
CTA/NEA,
Employee
	Organization.	Employee Organization.
)
)
)
)
)
)
)
)
)
)
___________________ ) 
Case
	No.
	SF-R-588
PROPOSED	
REPRESENTATION
DECISION
May 3, 1978	
May
3, 	1978
Appearances:	Appearances: Mi
ber 30, 1977.
PROCEDURAL HISTORY
onsing, Hearing Officer.
Michael 	Sorgen, 	Legal 	Adviser
	for
	Oakland
	Unified
School
	District;
	Duane
	Beeson,
	Attorney
	(Brundage, 	Beeson,
Tayer
	and
	Kovach),
	for
	Oakland
	Education
	Association,
	CTA/NEA.
Before 	Michael
	J.
	Tensing,
	Hearing
	Officer.
PROCEDURAL
	HISTORY
On
	September
	1,
	1977,
	the
	Oakland
	Education
	Association,
CTA/NEA	
(hereafter
	OEA)
	filed
	a
	request 	for 	recognition
	with
the
	Board
	of
	Education
	of
	the
	Oakland
	Unified
	School
	District
(hereafter
	District).
	The
	request
	sought 	the 	following
	unit:
A]J
	regular
	certificated 	substitute
	teachers
who
	work
	day-to-day,
	part-time,
	or
long-term.
	(Long-term
	defined 	as 	having
worked
	20
	or
	more
	consecutive 	days.)
All
	substitutes
	in 	Children's
	Centers
	and
Adult
	Day
	and 	Evening
	Schools.
On
	October 	3, 	1977, 	the
	District 	filed
	with 	the 	Public
Employment
	Relations 	Boara, 	formerly 	the 	Educational
	Employment
Relations
	Boara
	(hereafter
	PERB),
	its 	Petjtion
	for
	Board
Investigation 	asking 	the
	Board
	to 	determine 	the 	appropriateness
of 	the 	unit 	requested
	by 	OEA. 	A
	formal 	hearing
	was
	conducted
on 	November 	30, 	1977.

ISSUES
The parties stipulated that the following issues are in
dispute :
1 . 	Whether per diem substitute teachers are employees
within the meaning of the EERA with a right to negotiate with
the public school employer?
2. If so, can or should an appropriate unit be established?
3. If an appropriate unit can and should be formed, what
4. If there is an appropriate unit, which members are
eligible to vote for an exclusive representative?
As to the fourth issue the parties also stipulated that if
a separate unit is found appropriate, the test of eligibility
to vote for the exclusive representative shall be that the
substitute must be on the current active list of the District
and have actually worked a minimum of nine days between the
beginning of the 1976-77 school year and the date of the
election.
FINDINGS OF FACT
The District hires per diem substitutes other than contract
substitutes, from lists that are created annually. The
Contract substitutes are kept on a salary and are
available for work with the District during the school year.
These substitutes are in the District's present certificated
classroom teacher unit, which was created by Board decision in
Oakland Unified School District (3/28/77) EERB Decision
No. 15. 	The Board excluded only per diem substitutes from the
certificated classroom teacher unit in this decision.
2
ISSUES
The
	parties
	stipulated 	that
	the 	following
	issues 	are 	in
dispute:
1.
	Whether
	per
	diem
	substitute
	teachers 	are
	employees
within
	the
	meaning
	of
	the
	EERA
	with
	a
	right
	to
	negotiate
	with
the
	public
	school
	employer?
2.
	If
	so,
	can
	or 	should
	an
	appropriate
	unit
	be
	established?
3.
	If
	an
	appropriate 	unit
	can
	and
	should
	be
	formed, 	what
is
	the
	appropriate
	composition
	of 	that
	unit?	is the appropriate composition of that unit?
4.
	If
	there
	is
	an
	appropriate
	unit,
	which
	members
	are
eligible
	to
	vote
	for
	an
	exclusive
	representative?
As
	to 	the
	fourth 	issue
	the
	parties
	also 	stipulated 	that
	if
a
	separate 	unit
	is
	found
	appropriate,
	the
	test
	of
	eJigibility
to
	vote 	for 	the
	exclusive
	representative
	shall
	be
	that
	the
substitute
	must 	be 	on
	the
	current 	active
	list
	of
	the
	District
and 	have
	actually
	worked
	a 	minimum
	of 	nine
	days 	between
	the
beginning 	of 	the
	1976-77
	school 	year
	and
	the 	date
	of
	the
election.
FINDINGS
	OF
	FACT
The
	District 	hires
	per
	diem
	substitutes
	other
	than
	contract
substitutes,
1
from
	lists
	that 	are 	created 	annually.
	The
lcontract 	substitutes
	are 	kept
	on 	a
	salary
	and
	are
available 	for
	work
	with 	the
	District
	during 	the 	school 	year.
These
	substitutes 	are 	in 	the
	District's
	present 	certificated
classroom 	teacher 	unit,
	which 	was
	created
	by 	Board
	decision 	inOakland 	Unified 	School
	District
	(3/28/77)
	EERB
	Decision
No.
	15.
	The 	Board 	excluded 	only 	per
	diem
	substitutes
	from
	the
certificated
	cJassroom 	teacher 	unit 	in 	this 	decision.
2

lists are made up of credentialed teachers who have been
According to
Dr. William Weichert, coordinator of certificated personnel for
the District, the active K-12 list includes 481 substitutes,
the active Children's Center list includes 83 to 87 substitute
teachers and the active Adult Education Center (AEC) list
includes approximately 280 substitute teachers. Mrs. Georgia
Culbreth, the substitute teacher clerk, says that the
Children's Center list has only 25 teachers and the K-12 list
2
3
W
lists
	are
	made
	up
	of
	credentialed
	teachers
	who
	have 	been
approved
	for
	empJoyment
	after
	an
	interview.
2
According
	to
Dr.
	William
	Weichert,
	coordinator 	of
	certificated
	personnel 	for
the
	District,
	the
	active
	K-12
	list
	includes
	481
	substitutes,
the
	active 	Children's
	Center
	list
	includes
	83
	to
	87
	substitute
teachers
	and
	the
	active
	Adult 	Education 	Center
	(AEC)
	list
includes
	approximately
	280
	substitute
	teachers.
	Mrs.
	Georgia
Culbreth,
	the
	substitute
	teacher
	clerk,
	says
	that
	the
Children's
	Center
	list
	has
	only
	25
	teachers
	and
	the
	K-12
	list
has
	between
	400
	and
	500
	teachers.
3
The
	District 	recruits 	substitutes
	through 	placement
offices,
	employment
	offices,
	and
	the
	recommendation
	of 	teachers
and
	administrators.
	The 	K-12
	active
	list
	expands
	throughout
the 	school 	year
	by
	the
	addition 	of
	40
	to
	50
	persons
	each 	week,
offset
	by
	the
	deletion 	of
	approximately 	ten 	persons
	each
	week.
During
	the 	year
	this
	list
	may
	be
	built
	up
	to
	as
	many
	as
	700
substitutes.
	Substitutes
	are 	deleted
	from
	the
	list
	primarily
on
	their
	own
	initiative
	and
	are
	either
	put 	temporarily
	on
	the
inactive
	list
	or
	removed
	altogether. 	If
	a
	teacher 	refuses 	five
or
	six
	assignments 	in
	a
	row,
	the
	District
	will 	place
	that
substitute
	on
	the
	inactive
	list.
	In 	circumstances 	in
	which
	a
2The
	record
	is
	not
	clear
	as 	to
	who
	decides, 	ultimately,to 	hire
	or 	not 	to 	hire 	substitutes.
3This
	disparity
	can 	be
	explained
	by
	the 	testimony 	of 	both
witnesses 	that 	the 	size 	of 	the
	substitute
	lists
	changes
frequently.
	It 	is
	not 	necessary 	to
	make 	a
	conclusive 	findingabout 	the 	size 	of 	the
	lists
	because 	none
	of 	the
	disparitieswill 	affect 	the 	legal 	conclusions 	herein.
3
approved for employment after an interview.
has between 400 and 500 teachers.
This disparity can be explained by the testimony of both
The record is not clear as to who decides, ultimately,
The District recruits substitutes through placement
offices, employment offices, and the recommendation of teachers
and administrators. The K-12 active list expands throughout
the school year by the addition of 40 to 50 persons each week,
offset by the deletion of approximately ten persons each week.
During the year this list may be built up to as many as 700
substitutes. Substitutes are deleted from the list primarily
on their own initiative and are either put temporarily on the
inactive list or removed altogether. If a teacher refuses five
or six assignments in a row, the District will place that
substitute on the inactive list. In circumstances in which a
to hire or not to hire substitutes.
witnesses that the size of the substitute lists changes
frequently. It is not necessary to make a conclusive finding
about the size of the lists because none of the disparities
will affect the legal conclusions herein.

An entirely separate but apparently similar procedure is
used for the hiring of adult education substitutes and a
separate list is k
There is no way to specifically predict in advance what the
substitute needs will be on a particular day, but the demand
does follow a consistent pattern. Mrs. Georgia Culbreth, the
substitute clerk, gave testimony about the amount of time
4 	ollow-up interview with the substitute.
This sort of termination generally results from a complaint by
the principal of the school to which the substitute has been
assigned.
as containing 400-500 and 700 teachers. Apparently between
200-350 substitutes return the next year, with the core group
consisting of 200 reliable persons who return year after year.
substitute 	is
	considered
	incompetent
	or
	has
	allegedly
	broken
District
	rules,
	he
	or
	she
	may
	be
	terminated
	from
	the
	list
	for
that reason."	
that
	reason.
substitute is considered incompetent or has allegedly broken
District rules, he or she may be terminated from the list for
4
Substitute
	teachers 	are
	automatically
terminated
	at
	the
	end
	of
	each
	year.
	At
	the
	end
	of
	the 	school
year
	a
	letter
	is
	sent	
by	
the
	District
	to
	each
	substitute
telling
	them
	to
	submit
	a 	new
	form
	in 	order 	to
	be
	put
	on
	the
list
	the 	following
	year.
	If
	a
	substitute's
	credential
	needs
	to
be
	renewed,
	the
	substitute
	clerk
	makes
	sure
	they
	get
	the
	forms
to
	do
	this.
	Substitutes
	with
	valid
	credentials
	who
	ask
	to
	be
put
	on
	the 	next
	year's
	list
	will
	be
	put
	on
	that
	list.
Each
	year 	approximately
	one-half 	of 	the 	persons
	on
	the
	list
the 	year 	before
	return.
5
An
	entirely
	separate
	but
	apparently
	similar
	procedure
	is
used
	for 	the
	hiring
	of
	adult
	education
	substitutes
	and
	a
separate
	list
	js
	kept
	by
	the
	adult
	education
	office.
There
	is
	no
	way
	to
	specifically 	predict
	in
	advance 	what
	the
substitute
	needs
	will
	be 	on
	a
	particular
	day, 	but 	the
	demand
does
	follow
	a
	consistent 	pattern.
	Mrs.
	Georgia
	Culbreth, 	the
substitute 	clerk,
	gave
	testimony 	about 	the
	amount
	of
	time
4There
	is
	a
	follow-up 	interview 	with 	the
	substitute.
This
	sort
	of 	termination 	generally 	results
	from
	a
	complaint
	by
the
	principal 	of
	the 	school 	to
	which
	the
	substitute
	has 	been
assigned.
5TThe	he record is unclear on exactly how many substitutes	
record
	is
	unclear
	on
	exactly
	how many
	substitutes
come	come back. Mrs. Georgia Culbreth says "at least 200" and	
back. 	Mrs. 	Georgia 	Culbreth 	says
	"at 	least
	200" 	and
"about	"about one-half". The list of the year is variously described	
one-half".
	The
	list
	of 	the 	year
	is 	variously 	describedas 	containing
	400-500 	and 	700
	teachers. 	Apparently 	between
200-350
	substitutes 	return 	the 	next 	year, 	with 	the 	core 	group
consisting 	of
	200
	reliable 	persons	
who	
return 	year
	after 	year.
Substitute teachers are automatically
There is a f
4
terminated at the end of each year. At the end of the school
ept by the adult education office.
year a letter is sent by the District to each substitute
telling them to submit a new form in order to be put on the
Each year approximately one-half of the persons on the list
the year before return.
list the following year. If a substitute's credential needs to
be renewed, the substitute clerk makes sure they get the forms
to do this. Substitutes with valid credentials who ask to be
put on the next year's list will be put on that list.

250 to 300 calls must be made to fill all the assignments.
a result of this volume, approximately 200 individual
substitutes each work more than half of the school days during
the year. This is based on an active K-12 list of about 480
substitutes. Of the remaining 280 substitutes, most of these
individuals work twice a week or maybe three times a week if
they are available. But of this number, 100 or 150 will work
less than one-quarter of the school days. According to the
uncontradicted testimony of Mrs. Culbreth, when a substitute
works as few days as this, it is almost always because that
substitute has made himself or herself unavailable for various
periods during the school year. Furthermore, even though many
substitutes limit their availability, it is quite uncommon for
a substitute on the active list to serve fewer than ten days
during a year.
work more
th 	s that
Education Code section 13337.3 gives substitutes who work more
than 75 percent of the school days eligibility for permanent
positions that might become available the following year, and
the year in which they serve 75 percent or more of the school
days is considered a probation
establishing permanency in the f
typically
	worked
	by
	substitutes
	during
	a
	year.
	On
	an
	average
day,
	100
	to
	200
	substitute
	assignments
	are
	made.
	Typically,
250
	to
	300
	calls
	must 	be
	made
	to
	fill
	all
	the 	assignments.
	As
a
	result
	of
	this
	volume,
	approximately
	200
	individual
substitutes
	each
	work 	more
	than
	half
	of
	the 	school
	days
	during
the
	year.
	This
	is
	based
	on
	an
	active
	K-12
	list
	of
	about
	480
substitutes.
	Of
	the
	remaining
	280
	substitutes,
	most
	of 	these
individuals
	work
	twice
	a
	week
	or
	maybe
	three
	times
	a
	week
	if
they
	are
	available.
	But
	of
	this
	number,
	100
	or
	150
	will
	work
less
	than
	one-quarter 	of
	the 	school 	days.
	According
	to 	the
uncontradicted
	testimony
	of
	Mrs.
	Culbreth,
	when
	a
	substitute
works
	as
	few
	days
	as
	this,
	it
	is
	almost
	always 	because
	that
substitute
	has
	made
	himself 	or
	herself
	unavailable 	for 	various
periods
	during 	the 	school
	year.
	Furthermore,
	even 	though
	many
substitutes 	limit 	their 	availability,
	it
	is 	quite
	uncommon
	for
a
	substitute
	on
	the
	active
	list
	to 	serve
	fewer
	than 	ten 	days
during
	a
	year.
typically worked by substitutes during a year. On an average
day, 100 to 200 substitute assignments are made. Typically,
On
	the
	other
	hand,
	it
	is
	rare
	for
	a
	substitute
	to
	work 	more
than
	75
	percent 	of 	the 	time.
	The
	apparent 	reason
	is 	that
Education
	Code
	section
	13337.3
	gives
	substitutes
	who
	work 	more
than
	75
	percent 	of 	the 	school
	days
	eligibility
	for
	permanent
positions 	that
	might
	become
	available
	the 	following 	year,
	and
the 	year 	in
	which
	they 	serve
	75
	percent 	or
	more
	of 	the 	school
days
	is
	considered
	a
	probationary 	year 	for 	purposes 	of
establishing
	permanency 	in 	the 	full-time 	position.
	For
	this
On the other hand, it is rare for a substitute to
an 75 percent of the time. The apparent reason i
ary year for purposes of
ull-time position. For this
5

reason, substitutes are generally not asked to work more than
75 percent of the time unless they are favored for employment
as a regular teacher. Approximately three substitutes in the
Substitutes are allowed to, and often do, work in other
districts. Approximately 50 percent of the substitutes are
also working in other districts. Adult education substitutes
may also have regular teaching jobs during the day, and,
consequently, some adult education substitutes are already in a
bargaining unit for full-time teachers. Adult education
substitutes may also be on the regular K-12, or children's
center substitute list.
Substitutes are assigned on either a long term or a
day-to-day basis. Particular substitutes are given particular
work assignments primarily on request of the classroom teacher
or the school administrator. If a specific substitute is not
requested, or the requested substitute is not available, the
substitute clerk and assistants make the assignment by matching
6M
6
reason,
	substitutes
	are
	generally
	not
	asked
	to
	work 	more
	than
75
	percent 	of
	the
	time
	unless
	they
	are
	favored
	for
	employment
as
	a
	regular 	teacher.
	Approximately
	three
	substitutes
	in 	the
K-12
	group
	worked
	more
	than
	75
	percent 	of
	the 	school
	days
	last
year .	
year.
Substitutes
	are
	allowed
	to,
	and
	often
	do,
	work
	in
	other
districts.	
Approximately	
50
	percent 	of	
the	
substitutes
	are
also
	working
	in
	other
	districts.
	Adult
	education
	substitutes
may
	also
	have
	regular	
teaching 	jobs 	during 	the	
day, 	and,
consequently,
	some
	adult
	education
	substitutes
	are 	already 	in
	a
bargaining
	unit	
for	
full-time 	teachers.
	Adult
	education
substitutes
	may
	also
	be 	on 	the	
regular	
K-12,	
or
	children's
center
	substitute
	list.
Substitutes
	are 	assigned
	on
	either
	a
	Jong
	term
6
or
	a
day-to-day
	basis. 	Particular 	substitutes
	are 	given
	particular
work
	assignments
	primarily
	on
	request 	of 	the 	classroom
	teacher
or 	the 	school
	administrator.
	If
	a
	specific 	substitute 	is
	not
requested, 	or 	the 	requested
	substitute 	is
	not
	available, 	the
substitute 	clerk
	and
	assistants
	make
	the 	assignment	
by	
matching
experience and background and teacher preferences for schools,
grades,
	and
	location
	as
	closely
	as
	possible.
	Separate
	lists
are
	used
	for 	secondary
	and
	elementary
	substitutes
	because, 	for
6More
	than 	twenty 	days 	in 	the
	same
	assignment
	is
	the
definition 	of 	long 	term.
	Long
	term
	substitutes 	are 	paid
	more
per 	day.
	A
regular 	day-to-day 	substitute 	receives
	$38.75
	per
day .	
day.
	A
long-term 	substitute 	receives
	an
	increase 	to 	$47.50 	per
day.	day . 	The
	testimony 	in 	this 	regard
	was
	not 	qualified 	to 	suggestany
	difference 	in
	payment 	among 	K-12,
	adult 	education,
	and
children's 	center 	substitutes. 
6
ore than twenty days in the same assignment is the
definition of long term. Long term substitutes are paid more
per day. A regular day-to-day substitute receives $38.75 per
A long-term substitute receives an increase to $47.50 per
The testimony in this regard was not qualified to suggest
any difference in payment among K-12, adult education, and
children's center substitutes.
K-12 group worked more than 75 percent of the school days last
experjence
	and
	background 	and
	teacher 	preferences 	for 	schools,
grades, and location as closely as possible. Separate lists
are used for secondary and elementary substitutes because, for

secondary substitutes, subject matter competence is a relevant
selection criterion, while for elementary substitutes it
usually is not. Substitutes have the right to refuse
assignments, including long term ones. Long term assignments
in particular are often made by request of the principal or the
regular teacher. Substitutes may or may not favor long term
assignments, depending on their personal circumstances.
itute is supposed to assume the role of the absent
regular teacher as completely as possible. Substitutes carry
on the program that the regular teacher has set up for the
class, following the lesson plan, if there is one. All
substitutes have the authority to give exams and grades. 	When
a substitute is in the same position for ten consecutive days,
an evaluation by a site administrator is required. Forms
similar to that one used for the regular teacher evaluations
are filled out. 	Substitutes may rebut the evaluation if they
wish. 	Evaluations are then placed in the substitute's
7
secondary 	substitutes, 	subject 	matter 	competence 	is 	a 	relevant
selection 	criterion, 	while 	for 	elementary 	substitutes 	it
usually 	is 	not. 	Substitutes 	have 	the 	right 	to 	refuse
assignments, 	including 	long 	term 	ones. 	Long 	term 	assignments
in 	particular 	are 	often 	made 	by 	request 	of 	the 	principal 	or 	the
regular 	teacher. 	Substitutes 	may 	or 	may 	not 	favor 	long 	term
assignments, 	depending 	on 	their 	personal 	circumstances.
A substitute 	is 	supposed 	to 	assume 	the 	role 	of 	the 	absent
regular 	teacher 	as 	completely 	as 	possible. 	Substitutes 	carry
on 	the 	program 	that 	the 	regular 	teacher 	has 	set 	up 	for 	the
class, 	folJowing 	the 	lesson 	plan, 	if 	there 	is 	one. 	All
substitutes 	have 	the 	authority 	to 	give 	exams 	and 	grades. 	When
a 	substitute 	is 	in 	the 	same 	position 	for 	ten 	consecutive 	days,
an 	evaluation 	by 	a 	site 	administrator 	is 	required. 	Forms
similar 	to 	that 	one 	used 	for 	the 	regular 	teacher 	evaluations
are 	filled 	out. 	Substitutes 	may 	rebut 	the 	evaluation 	if 	they
wish. 	Evaluations 	are 	then 	placed 	in 	the 	substitute's
personnel 	file. 	A bad 	evaluation may 	lead 	to 	an 	interview 	to
discuss 	the 	problem 	and, 	eventually, 	removal 	from 	the
substitute 	list. 	Good 	evaluations 	may 	lead 	to 	substitutes
being 	given 	preference 	when 	regular 	teaching 	vacancies 	occur.
Substitutes 	receive 	no 	fringe 	benefits 	(sick 	leave, 	health
benefits) 	but 	the 	teachers 	retirement 	system 	is 	availabl.e 	to
them.	them. 	Long 	term 	substitutes 	are 	responsible 	for 	developing 	a
teaching 	plan, 	attending 	school 	meetings, 	and 	involving
themselves 	in 	curriculum 	development. 	Day-to-day 	substitutes
have 	none 	of 	these 	responsibilities.
7
A subst
personnel file. A bad evaluation may lead to an interview to
discuss the problem and, eventually, removal from the
substitute list. Good evaluations may lead to substitutes
being given preference when regular teaching vacancies occur.
Substitutes receive no fringe benefits (sick leave, health
benefits) but the teachers retirement system is available to
Long term substitutes are responsible for developing a
teaching plan, attending school meetings, and involving
themselves in curriculum development. Day-to-day substitutes
have none of these responsibilities.

Records are kept for each substitute. The number of days
worked is recorded, and a record is kept of the locations at
which the substitute has worked, and the positions worked in at
each location. A regular personnel file is maintained.
record of the substitute's credential is kept, but not a
complete employment history 	All substitutes are paid two
times a month. All the usual legal deductions are made from
opinion of
nd
7 	omplete employment history is kept for regular
teachers.
B
Records
	are
	kept
	for
	each
	substitute.
	The 	number
	of
	days
worked
	is
	recorded,
	and
	a
	record
	is
	kept
	of
	the
	locations
	at
which
	the
	substitute
	has 	worked,
	and
	the
	positions
	worked
	in
	at
each
	location.
	A
	regular
	personnel
	file
	is
	maintained.
	A
record
	of
	the
	substitute's
	credential
	is
	kept,
	but 	not
	a
complete
	employment
	history.	.' 7
All
	substitutes
	are
	paid
	two
times
	a
	month.
	All 	the 	usual
	legal
	deductions 	are
	made
	from
the
	substitute's
	check,
	and
	substitutes
	can,
	and
	do,
	authorize
deductions 	for
	organizational
	dues. 	(This is the	
(This
	is
	the 	opinion
	of
Dr.
	William
	Weichert.)
There
	are 	occasions
	where
	the
	regular 	teacher,
	in
	effect,
"pays
	for" 	the
	substitute
	teacher.
	In
	the 	event
	that
	a
	teacher
has
	a
	prolonged
	illness
	and
	exhausts
	his
	or 	her
	sick 	leave,
that
	teacher
	is
	then 	paid 	the
	difference
	between
	a
	full-time
teacher's 	salary
	and
	the
	cost 	of
	the
	substitute
	for 	the
following
	100
	working 	days.
There are occasions where the regular teacher, in effect,
In the past, under the Winton Act's meet a	
In 	the
	past,
	under
	the
	Winton 	Act
1 s 8
meet	confer	
and
	confer
proceedings, 	the
	District
	discussed
	substitute
	issues
	with
	the
certificated
	employee's 	council
	(hereafter
	CEC).
	Some
	of 	the
organizations 	represented
	on
	the
	CEC
	had
	substitute
	teachers
among
	their
	membership.
	Among
	matters 	discussed
	was
	the
question 	of
	whether
	a
	preference 	should
	be
	given 	to 	qualified
substitutes
	in
	filling
	permanent
	vacancies, 	the 	question 	of
7A	
complete 	employment
	history 	is
	kept 	for 	regular
teachers.
8
A c
the substitute's check, and substitutes can, and do, authorize
proceedings, the District discussed substitute issues with the
certificated employee's council (hereafter CEC) . Some of the
organizations represented on the CEC had substitute teachers
among their membership. Among matters discussed was the
question of whether a preference should be given to qualified
substitutes in filling permanent vacancies, the question of
deductions for organizational dues.
Dr. William Weichert.)
8cal. Ed. Code section 13080 et seq. , repealed, Stats.
1975, 	ch. 	961, 	section 	1, 	effective 	July 	1, 	1976.
eal. 	Ed. 	Code
	section
	13080
	et 	seq., 	repealed, 	Stats.
1975, ch. 961, section 1, effective July 1, 1976.
"pays for" the substitute teacher. In the event that a teacher
has a prolonged illness and exhausts his or her sick leave,
that teacher is then paid the difference between a full-time
teacher's salary and the cost of the substitute for the
following 100 working days.

whether teachers should have the opportunity to request
particular substitutes, and whether the workload was to be
equitably distributed by calling substitutes on a rotation
basis. 	Substitute issues were included in the memorandum of
understanding between the District and the CEC. The present
negotiated agreements with the full-time teachers bargaining
units do not include any matters directly relating to
substitutes. 	Currently, substitutes do present "grievances" to
the most appropriate one of several different people.
Dr. Weichert resolves substitute grievances concerning disputes
over the exact number of days a substitute has worked,
complaints that someone else has been given preference though
the complainant is better qualified or had worked with the
District longer, and deals with questions as to why a
kland
District already has eleven
The record is silent on the question of whether this
"grieva
whether
	teachers
	should
	have
	the
	opportunity 	to 	request
particular 	substitutes,
	and
	whether
	the
	workload
	was
	to
	be
equitably
	distributed
	by
	calling 	substitutes
	on
	a
	rotation
basis.
	Substitute
	issues
	were
	included 	in 	the
	memorandum
	of
understanding
	between
	the
	District
	and
	the
	CEC.
	The
	present
negotiated
	agreements 	with 	the
	full-time
	teachers 	bargaining
units
	do
	not
	include
	any
	matters
	directly 	relating
	to
substitutes.
	Currently,
	substitutes
	do
	present
	"grievances"
	to
the
	most
	appropriate
	one
	of 	several
	different
	people.
Dr.
	Weichert
	resolves
	substitute
	grievances
	concerning
	disputes
over 	the
	exact
	number
	of
	days
	a
	substitute
	has 	worked,
complaints
	that
	someone
	else
	has
	been
	given
	preference
	though
the 	complainant
	is 	better 	qualified
	or
	had 	worked
	with
	the
District
	longer,
	and
	deals
	with
	questions
	as 	to	
why 	a
substitute
	has
	not
	been
	given
	a
	regular
	job 	in 	the
	Distrjct.
The
	most
	frequent 	complaints 	concern
	work
	evaluations
	made
	by
the
	sjte
	administrator.
	Dr.
	Weichert 	handles
	fifteen
	to
	twenty
such
	grievances
	a
	year.
	Mr.
	James
	R.
	Wilson, 	Coordinator
	of
Staff 	Relations,
	has
	handled,
	on
	behalf 	of 	the
	District
approximately 	three 	grievances
	from
	the
	certificated
substitutes
	in 	the
	last
	seven
	years.
	These
	grievances
	were
brought 	under
	a
	grievance 	procedure
	that
	was 	a
	consequence
	of
the
	Winton 	Act 	meet 	and
	confer 	process.
9
The
	Oakland
District
	already
	has 	eleven
	units,
	two
	of	
which	
are 	units 	of
9The
	record 	is 	sil.ent
	on 	the 	question 	of 	whether
	this"grievance 	procedure" 	has 	been 	informally 	retained 	or 	not.
9
substitute has not been given a regular job in the District.
nce procedure" has been informally retained or not.
units, two of which are units of
9
The most frequent complaints concern work evaluations made by
the site administrator. Dr. Weichert handles fifteen to twenty
such grievances a year. Mr. James R. Wilson, Coordinator of
Staff Relations, has handled, on behalf of the District
approximately three grievances from the certificated
substitutes in the last seven years. These grievances were
brought under a grievance procedure that was a consequence of
the Winton Act meet and confer process. The Oa

certificated employees. 10
The District will have a problem determining who is
being represented, due
b) Problems will be created because some unit members will
The District will be burdened by having to negotiate
with another unit;
The District will have to schedule additional clerical
time and keep additional records in order to accommodate
another unit;
Problems may be created for the District because of
uncertainty about the number of days substitutes will work;
There might be more grievances filed with the District;
The District will have great difficulties negotiating
health benefits;
udgetary uncertainty will be imposed on the District
due to uncertainty concerning the composition of the substitute
i) Budgetary uncertainty will be imposed on the District
due to the question of possible leaves for substitutes.
unit of K-12 teachers, (b) a unit of children's
center employees.
10
certificated
	employees.
10 None of the units include any	None
	of
	the
	units
	jnclude
	any
substitute employees. Some members of the K-12 unit also	
substitute
	employees.
	Some 	members
	of 	the
	K-12
	unit 	also
substitute from time to time. Mr. Wilson anticipates that if a	
substitute
	from
	time
	to
	time.
	Mr.
	Wilson
	anticipates 	that
	if
	a
substitute unit is certified the following problems will arise:	
substitute
	unit 	is
	certified
	the 	following
	problems
	will
	arise:
a)	
The
	District
	will
	have
	a
	problem
	determining
	who
	is
being	
represented,
	due
	to
	the
	transiency 	of	
the
	work
	force;
a)
to the transiency of the work force;
c)
b)
	Problems
	wiJl
	be
	created
	because
	some
	unit
	members
	will
not
	be
	"true"
	substitutes,
	in
	that
	they
	are
	regular
	full-time
teachers
	using
	substituting
	as
	a
	secondary 	source
	of
	income;
c)	
The
	District 	will
	be
	burdened
	by
	having
	to
	negotiate
with
	another
	unit;
d) 	The
	District
	will
	have
	to
	schedule
	additional
	clerical
time
	and
	keep
	additional
	records 	in 	order 	to
	accommodate
another
	unit;
d)
g)
f)
e}	e)	
Problems
	may
	be
	created 	for 	the
	District
	because
	of
uncertainty
	about 	the
	number
	of
	days
	substitutes 	will
	work;
f) 	There 	might
	be 	more
	grievances
	fi]ed
	with 	the
	Districti
g) 	The
	District 	will
	have
	great
	difficulties
	negotiating
health 	benefits;
h) B
Budgetary
	uncertainty 	will
	be 	imposed 	on
	the
	District
due
	to 	uncertainty
	concerning 	the 	composition 	of 	the
	substitute
unit ;	
unit;
h)
i) 	Budgetary
	uncertainty 	will
	be 	imposed 	on
	the
	District
due
	to 	the 	question 	of 	possible 	leaves 	for
	substitutes.
not be "true" substitutes, in that they are regular full-time
teachers using substituting as a secondary source of income;
10(a)
	a
	unit 	of
	K-12
	teachers,
	(b) 	a
	unit 	of 	children
1 s
center 	employees.
10
lO (a) a

DISCUSSION AND CONCLUSIONS OF LAW
Per diem sub	1 	stitute teachers are employees within the
meaning of the EERA with a right to negotiate with the public
school employer
The District argues that per diem substitutes are not
"employees" within the meaning of Government Code section
11
b
Government Code section 3540.1 (j) defines "employee" thusly:
"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.
On its face, this language seems to include per diem substitute
teachers. 	The role of substitutes has a number of commonly
accepted indicia of employee status. These substitutes perform
1s
the term "employed" as used in the California Education Code
implies the existence of a written contract.
11
.
DISCUSSION
	AND
	CONCLUSIONS
	OF
	LAW
1.
	Per
	diem
	substitute
	teachers 	are
	employees
	within 	the
meaning
	of
	the
	EERA
	with
	a
	right
	to 	negotiate
	with
	the
	public
school
	employer
The
	District
	argues
	that
	per
	diem
	substitutes
	are
	not
"employees"
	within 	the
	meaning
	of
	Government
	Code
	section
3540. 1 (j) , because they have no written contracts,
11 and	and
because 	they 	are
	not
	employed
	in
	"positions"
	within
	the
	meaning
of
	that
	term
	as
	it
	is
	used
	in 	the 	Education
	Code.
	The
	hearing
officer
	does
	not 	agree
	and
	finds
	instead
	that
	per
	diem
substitute
	teachers 	are
	employees
	within 	the
	meaning
	of 	the
EERA
	and
	therefore
	have
	a
	right
	to
	negotiate
	with
	the
	public
school
	employer.
o
E
s
ecause they are not employed in "positions" within the meaning
of that term as it is used in the Education Code. The hearing
fficer does not agree and finds instead that per diem
substitute teachers are employees within the meaning of the
ERA and therefore have a right to negotiate with the public
chool employer.
Government
	Code
	section 	3540.l(j) 	defines
	"employee"
	thusly:
"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.
On
	its
	face,
	this
	language
	seems
	to 	include 	per
	diem
	substitute
teachers.
	The
	role 	of
	substitutes
	has
	a
	number
	of
	commonly
accepted
	indicia
	of
	employee
	status.
	These
	substitutes
	perform
services
	for 	the
	District;
	they 	are
	on
	the 	public 	payroll;
deductions 	are
	made
	from
	their
	paychecks; 	they 	are 	formally
evaluated
	after
	10
	days
	of 	service;
	a
	personnel
	file 	is
	kept
for 	each 	one
	of
	them.
	Furthermore, 	the 	teachers 	retirement
llsee
	Wood
	v.
	Los 	Angeles 	City 	School
	District
	(1935)6
	Cal.App.2d400	
[44	
P.2d 	644]	
in 	which 	the 	court
	found
	thatthe 	term 	"employed" 	as 	used 	in 	the 	California 	Education 	Code
implies 	the 	existence 	of
	a
	written 	contract.
11
services for the District; they are on the public payroll;
3540.l(j),
	because 	they
	have
	no
	written 	contracts,
deductions are made from their paychecks; they are formally
evaluated after 10 days of service; a personnel file is kept
ee Wood v. Los Angeles City School District (1935)
6 Cal. App. 2d 400 [44 P. 2d 644] in which the court found that
for each one of them. Furthermore, the teachers retirement

system is available to them. In the past, substitutes have
brought grievances under a procedure adopted under the Winton
Act; they presently make complaints to Dr. William Weichert,
coordinator of certificated personnel in the District.
In light of these indicia of employment, to exclude per
diem substitutes from the coverage of the EERA would require
some basis in the language or intent of that statute. 1 	The
language of the statute, however, indicates no such intent.
Section 3540.1(j), contains explicit exclusions from the
statutory definition of "emp
Section 3540.1(j) , does not by its terms require a written
12 	te the Board has not excluded any employees from
coverag 	r the Act other than those excluded by the terms
thereof, i. e., management and confidential. In Pittsburg
Unified School District (10/14/76) EERB Decision No. 3, p. 6,
the Board refused to exclude noon duty supervisors from the
classified employees unit even though Ed. Code section 45103
(former sec. 13581) excludes noon duty supervisors from the
classified service. In Lompoc Unified School District
12
system
	is
	available
	to
	them.
	In
	the
	past, 	substitutes
	have
brought
	grievances
	under
	a
	procedure 	adopted
	under
	the
	Winton
Act; 	they
	presently
	make
	complaints
	to
	Dr.
	William
	Weichert,
coordinator 	of
	certificated
	personnel
	in
	the
	District.
In
	light
	of 	these
	indicia
	of
	employment,
	to
	exclude
	per
diem
	substitutes
	from
	the
	coverage
	of
	the
	EERA
	would
	require
some
	basis
	in 	the
	language
	or
	intent
	of
	that
	statute.
12
The
language
	of
	the
	statute,
	however,
	indicates
	no
	such
	intent.
Section
	3540.l(j),
	contains
	explicit
	exclusions
	from
	the
statutory 	definition
	of
	"employee",
	but 	"per
	diem
	substitutes"
is
	not
	among
	them.
	It
	must
	be 	presumed
	in 	the
	absence
	of 	other
information
	that
	the
	Legislature
	intended
	to
	exclude 	only 	those
categories
	specifically
	mentioned.
Section
	3540.l(j),
	does
	not
	by
	its
	terms
	require
	a
	written
contract,
	and
	case-law
	interpretations
	of
	the
	term 	"employee"
as
	used
	in 	the 	Education
	Code
	need
	not
	be
	read
	into
	the
	EERA.
The
	purposes
	of
	the
	two
	acts
	are
	quite 	different
	and
	their
12To
	date 	the
	Board
	has 	not 	excluded
	any 	employees 	from
coverage	e unde	
under
	the
	Act
	other
	than 	those 	excluded
	by
	the 	terms
thereof,
	i.e.,
	management 	and
	confidential.
	In
	PittsburgUnified 	School
	District
	(10/14/76)
	EERB
	Decision	
No.	
3, 	p. 	6,the
	Board
	refused 	to 	exclude
	noon
	dutv 	supervisors
	from
	the
classified
	employees
	unit
	even 	though 	Ed. 	Code
	section
	45103
(former
	sec.
	13581)
	excludes
	noon
	duty 	supervisors
	from
	the
classified 	service.
	In
	Lompoc
	Unified 	School
	District
(3/17/77)
	EERB
	Decision
	No.
	13.
	p.
	20,
	a
	concurrinq 	opinion
stated 	that
	the
	EERA
	11
indicates
	an
	intent 	to
	make
	neqotiatinq
rights 	broadly 	available."
	For
	this 	reason, 	the 	exclusion 	ofpersons
	from
	all 	rights
	as
	management 	employees
	was 	viewed
"narrowly."	
"narrowly." 	In 	excluding 	confidential
	employees 	the 	Board 	has
limited 	their
	number
	to
	a
	"small 	nucleus 	of 	individuals."
Sierra
	Sands 	Unified 	School
	District
	(10/4/76)
	EERB
	Decision
No. 2, p. 2.
12
To da
loyee", but "per diem substitutes"
(3/17/77) EERB Decision No. 13, p. 20, a concurring opinion
stated that the EERA "indicates an intent to make negotiating
rights broadly available." For this reason, the exclusion of
persons from all rights as management employees was viewed
In excluding confidential employees the Board has
limited their number to a "small nucleus of individuals."
Sierra Sands Unified School District (10/4/76) EERB Decision
No.
	2, 	p. 	2.
contract, and case-law interpretations of the term "employee"
as used in the Education Code need not be read into the EERA.
The purposes of the two acts are quite different and their
is not among them. It must be presumed in the absence of other
information that the Legislature intended to exclude only those
categories specifically mentioned.

respective definitions of "employee" diverge in other areas.
For example, section 3540.1 (j) specifically excludes
confidential employees, a class of persons who are
unquestionably "employees" within the meaning of that term as
In other states using similarly broad definitions of
"employee" in their public sector employee bargaining laws, the
majority in which applicable precedent has been found hold that
per diem substitutes are "employees." 	Eugene Substitute
Teachers Organization v. Eugene School District 4-J (Oregon
1976) 1 PECBR 716, aff'd. sub nom Eugene School District No. 4-J
v. Eugene Education Association (Oregon Ct. App. 1977) 572 P. 2d
13 	ny event a reading of Education Code section 44917
which states:
Except as provided in Sections 44888 and
44920, governing boards of school districts
shall classify as substitute employees those
persons employed in positions requiring
certification qualifications, to fill
positions of regularly employed persons
absent from service. [emphasis added]
shows that that section arguably includes per diem substitutes as
"employees". The District's other argument, that a person must
have a "position" to be employed is not persuasive, but if it
otherwise were, section 44917 refers to substitutes as being
"employed in positions". But, as mentioned above, the Education
13
respective 	definitions 	of 	"employee" 	diverge 	in 	other 	areas.
For 	example, 	section 	3540.l(j) 	specifically 	excludes
confidential 	employees, 	a 	class 	of 	persons 	who 	are
unquestionably 	"employees" 	within 	the 	meaning 	of 	that 	term 	as
used 	in 	the 	Education 	Code. 13
In 	other 	states 	using 	similarly 	broad 	definitions 	of
"employee" 	in 	their 	public 	sector 	employee 	bargaining 	laws, 	the
majority 	in 	which 	applicable 	precedent 	has 	been 	found 	hold 	that
per 	diem 	substitutes 	are 	"employees." 	Eugene 	Substitute
Teachers 	Organization 	v. 	Eugene 	School 	District 	4-J 	(Oregon
1976) 	1 	PECBR 	716, 	aff'd, sub 	nom 	Eugene 	School 	District 	No. 	4-J
v. 	Eugene 	Education 	Association 	(Oregon 	Ct. 	App. 	1977) 	572 	P.2d
13 In aany 	event 	a 	reading 	of 	Education 	Code 	section 	44917
which 	states:
rn
Except 	as 	provided 	in 	Sections 	44888 	and
44920, 	governing 	boards 	of 	school 	districts
shall 	classify 	as 	substitute 	employees 	those
persons 	employed 	in 	positions 	requiring
certification 	qualifications, 	to 	fill
positions 	of 	regularly 	employed 	persons
absent 	from 	service. 	remphasis 	added]
shows 	that 	that 	section 	arguably 	includes 	per 	diem 	substitutes 	as
"employees". 	The 	District's 	other 	argument, 	that 	a 	person 	must
have 	a 	"position" 	to 	employed 	is 	not 	persuasive, 	but 	if 	it
otherwise 	were, 	section 	44917 	refers 	to 	substitutes 	as 	being
"employed 	in 	positions". 	But, 	as 	mentioned 	above, 	the 	Education
Code 	use 	of 	t6e 	word 	"employee" 	is 	not 	ultimately 	determinative 	of
the 	issue 	under 	consideration 	- 	negotiation 	rights 	under 	the 	EERA,
since 	a 	person 	might 	well 	be 	considered 	an 	employee 	for 	one
purpose 	but 	not 	for 	another.
13
used in the Education Code. Is
Code use of the word "employee" is not ultimately determinative of
the issue under consideration - negotiation rights under the EERA,
since a person might well be considered an employee for one
purpose but not for another.

650; Philadelphia School District (Pa. 1975) 5 PPER 113; Milwaukee
Board of School Directors (Wisc. 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") . In New York,
however, per diem substitutes were held not to be "employees."
Bernard T. King, Esq. (N.Y. 1973) 6 PERB 3132. 	The King case
can be distinguished from the present one. There, over 40
percent of the per diem substitutes, worked less than ten days
during the year, and 70 percent worked less than one quarter of
the school days. Also, the New York Board has established a
minimum 60 percent return rate for seasonal employees to be
included in a unit, Matter of State of New York (1972) 5 PERB
3040, a seemingly arbitrary criterion with doubtful relevancy.
Under the National Labor Relations Act (hereafter
14 	"casual" employees who lack a sufficient interest
in conditions of employment may be excluded from the bargaining
unit of regular employees. Merkel & Sons (1977) 232 NLRB 12
[97 LRRM 1081]. But this exclusion is not based on a finding
that these individuals are not "employees", but rather on a
finding that they lack an adequate community of interest with
the other employees.
Having found that per diem substitutes are employees within
the meaning of section 3540.1(j), it follows necessarily that
14
14
650;
	Philadelphia
	School
	District
	(Pa.
	1975)
	5 	PPER
	113;
	Milwaukee
Board
	of
	School
	Directors
	(Wisc.
	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"). 	In
	New
	York,
however,
	per
	diem
	substitutes
	were
	held 	not
	to
	be
	"employees."
Bernard
	T.
	King, 	Esq.
	(N.Y.
	1973)
	6
	PERB
	3132.
	The 	King
	case
can
	be
	distinguished
	from
	the
	present
	one. 	There, 	over
	40
percent 	of
	the 	per
	diem
	substitutes,
	worked
	less
	than
	ten
	days
during 	the 	year,and
	70
	percent
	worked
	less
	than
	one
	quarter 	of
the 	school 	days. 	Also, 	the
	New
	York
	Board
	has
	established
	a
minimum 	60
	percent 	return 	rate
	for 	seasonal
	employees
	to
	be
included 	in
	a
	unit,
	Matter
	of
	State 	of
	New
	York 	(1972) 	5
	PERB
3040,
	a
	seemingly
	arbitrary 	criterion
	with
	doubtful 	relevancy.
Under
	the 	National
	Labor
	Relations
	Act
	(hereafter
NLRA) , 14
"casual"
	employees
	who
	lack
	a
	sufficient 	interest
in 	conditions 	of
	employment
	may 	be
	excluded
	from
	the
	bargaining
unit 	of 	regular
	employees. 	Merkel	
&	
Sons 	(1977) 	232
	NLRB
	12
[97
	LRRM
	1081).
	But
	this
	exclusion
	is
	not 	based
	on 	a
	finding
that
	these 	individuals 	are 	not 	"employees", 	but
	rather
	on 	a
finding
	that
	they 	lack
	an
	adequate
	communi
	of
	interest
	with
the 	other
	employees.
Having 	found
	that
	per
	diem
	substitutes
	are
	employees
	within
the
	meaning
	of 	section 	3540.l(j),
	it
	llows
	necessarily 	at
14It	
is 	well 	established 	that 	the 	Board
	will 	rely
	on
	NLRB
precedent 	where
	it
	is 	applicable. Firefighters v- City of
Vallejo
	(1974) 	12 	Cal.3d 	608 	r116
	Cal.Rptr. 	507, 	526 	P.2d 	971].
rtis well established that the Board will rely on NLRB
14
NLRA)
,
precedent where it is applicable.	
Firefighters
	v~
	City 	of
Vallejo (1974) 12 Cal. 3d 608 [116 Cal. Rptr. 507, 526 P. 2d 971].

these employees must have the same right to negotiate as do all
other public school employees under section 3543, assuming that
an appropriate unit can be identified.
2 . 	An appropriate unit can and sho
The District first argues that the lack of "continuing
relationship" between individual substitutes and the District
is a bar to forming a per diem substitute unit. The District
points to Government Code section 3540.1(h) and (d) , which
15
these
	employees
	must 	have
	the
	same
	right
	to
	negotiate
	as
	do
	all
other 	public
	school
	employees 	under
	section
	3543, 	assuming
	that
an
	appropriate
	unit
	can
	be
	identified.
2.
	An
	appropriate 	unit
	can uld be established	
and
	should
	be
	established
The
	District
	first
	argues
	that
	the
	lack 	of 	"continuing
relationship"
	between
	individual
	substitutes	
and	
the
	District
is
	a
	bar
	to
	forming
	a
	per
	diem
	substitute 	unit.
	The
	District
points
	to
	Government
	Code
	section
	3540.l(h)
	and
	(d),
	which
define
	"meeting
	and
	negotiating"
	and
	"employee
	organization"
	in
such
	a 	way
	as
	to 	manifest
	a
	legislative 	intent 	that
	only 	those
employees
	who
	have
	a
	regular
	and
	continuing
	employment
	relation
should
	be
	allowed
	to
	form
	or
	join
	a
	negotiating
	unit.
	The
District
	then 	argues
	that
	a
	unit
	of
	per
	diem
	substitutes
	would
not
	be
	in
	accord 	with 	the
	criteria
	of
	Government
	Code
	section
3545(a),
	due
	mainly
	to
	a
	lack 	of
	community
	of
	interest
	among
the 	per
	diem
	substitutes 	resulting
	from
	the
	different
	reasons
they
	may
	have
	for
	substituting
	and
	their
	lack 	of 	contact
	with
each
	other,
	and
	also
	because
	of
	the 	burden
	on
	the
	efficient
operation 	of 	the
	District 	that 	this 	unit
	would
	create.
The OEA argues that per diem substitutes are not "casual"
within the meaning of NLRB decisions that exclude "casual"
employees from units of regular employees, and argues that per
diem substitutes, therefore, have an employment relation
sufficient to warrant inclusion in a negotiating unit. They
contend that the fact that some individual substitutes may have
a casual employment history should not prevent formation of a
unit. The OEA also contends that per diem substitutes do have
15
define "meeting and negotiating" and "employee organization" in
such a way as to manifest a legislative intent that only those
employees who have a regular and continuing employment relation
should be allowed to form or join a negotiating unit. The
District then argues that a unit of per diem substitutes would
not be in accord with the criteria of Government Code section
3545 (a) , due mainly to a lack of community of interest among
the per diem substitutes resulting from the different reasons
they may have for substituting and their lack of contact with
each other, and also because of the burden on the efficient
operation of the District that this unit would create.
The
	OEA
	argues
	that
	per
	diem
	substitutes
	are 	not
	"casual"
within 	the
	meaning
	of
	NLRB
	decisions 	that
	exclude 	"casual"
employees 	from
	units 	of 	regular
	employees,
	and
	argues
	that
	per
diem
	substitutes, 	therefore,
	have 	an 	employment
	relation
sufficient 	to 	warrant 	inclusion 	in
	a
	negotiating 	unit.
	They
contend
	that 	the 	fact 	that
	some
	individual 	substitutes
	may
	have
a
	casual
	employment
	history 	should 	not 	prevent 	formation 	of
	a
unit.
	The
	OEA
	aJso 	contends 	that 	per 	diem
	substitutes
	do 	have

a community of interest among themselves, and that the
additional burdens caused to the District by the establishment
of this unit would be only those burdens necessarily incident
to any negotiating relationship and therefore not the sort of
burdens on the efficient operation of the District contemplated
by Government Code section 3545 (a) . Section 3545 (a) , argues
The choice presented here is whether to find a unit of per
diem substitutes to be appropriate, or whether to find no
appropriate unit and thereby in effect to exclude these
employees from all rights under the EERA. 	The Board has
decided already that per diem substitute teachers in Oakland
cannot appropriately be included in the unit of regular
classroom teachers. 	Having already found herein that per
diem substitutes are "em
6 	Absent strong reasons why the
proposed unit is inappropriate due t
15Oakland Unified School District (3/28/77) EERB Decision
No. 15.
Governme
16
a
	community
	of
	interest
	among
	themselves,
	and
	that
	the
additional
	burdens 	caused
	to 	the
	District
	by 	the	
establishment
of
	this
	unit
	would 	be
	only 	those
	burdens
	necessarily 	incident
to
	any
	negotiating
	relationship
	and
	therefore
	not
	the
	sort
	of
burdens
	on
	the
	efficient
	operation 	of
	the
	District
	contemplated
by 	Government
	Code
	section
	3545(a). 	Section 	3545(a), 	argues
the
	OEA,
	addresses
	itself
	only
	to	
the	
question 	of
	whether
particular
	employees
	should
	be
	put 	in
	a
	separate 	unit
	or
included 	in
	a
	larger
	unit,
	not
	to
	whether
	particular
	employees
should
	be
	allowed
	to
	negotiate
	at
	all.
The
	choice 	presented 	here
	is
	whether
	to 	find
	a
	unit 	of
	per
diem
	substitutes
	to
	be
	appropriate,
	or
	whether
	to
	find
	no
appropriate 	unit
	and
	thereby 	in
	effect
	to
	exclude 	these
employees
	from
	all
	rights
	under
	the
	EERA.
	The
	Board
	has
decided
	already
	that
	per
	diem
	substitute
	teachers 	in
	Oakland
cannot
	appropriately
	be
	included 	in 	the
	unit 	of 	regular
classroom
	teachers.
15
Having
	already
	found
	herein
	that
	per
diem
	substitutes
	are
	"employees"
	within 	the
	meaning
	of
Government
	Code
	section
	3540.l(j),
	the
	intent
	of 	the
	EERA
	will
be
	best
	served
	by
	attempting 	to 	find
	an
	appropriate 	unit
	and
thus
	protect
	the
	rights
	granted
	by
	this 	Jegislation
	to
	all
public 	school 	employees.
16
Absent
	strong 	reasons
	why
	the
proposed
	unit 	is 	inappropriate
	due
	to 	circumstances
	that
	would
15oakland 	Unified 	School
	District
	(3/28/77)
	EERB
	Decision
No.
	15.
16Government 	Code
	section
	3543
	et 	seq.
16
-
16
the OEA, addresses itself only to the question of whether
nt Code section 3543 et seq.
o circumstances that would
ployees" within the meaning of
Government Code section 3540.1 (j) , the intent of the EERA will
be best served by attempting to find an appropriate unit and
thus protect the rights granted by this legislation to all
public school employees. 1
particular employees should be put in a separate unit or
included in a larger unit, not to whether particular employees
should be allowed to negotiate at all.

cause the unit to collide with the directives of section
3545 (a) , this policy-based reasoning should prevail.
Gover
(a) In each case where the appropriateness
of the unit is an issue, the board shall
decide the question on the basis of the
community of interest between and among the
employees and their established practices
including, among other things, the extent to
which such employees belong to the same
employee organization, and the effect of the
size of the unit on the efficient operation
of the school district.
a) Established practices
There has been no PERB decision in which the facts have
demonstrated prior negotiating practices sufficient to form the
basis for a decision. The prior negotiation practices in this
case were unilateral in nature and therefore are given little
weight.
b) Community of interest
The facts show a community of interest among the per diem
substitutes in that they are all subject to the same hiring
procedures, working conditions and supervision, must meet the
same or similar qualifications, have the same basic duties, are
paid the same or similar amounts, and have the same benefits,
or lack of them. They are subject to the same evaluation
procedure, the same grievance procedure, and the same
re-employment procedure at the end of each year. The fact that
they may have different reasons for substituting and that they
have no contact with one another does not, when balanced
against the similarities, disturb this conclusion.
17
cause 	the
	unit
	to
	collide
	with 	the
	directives
	of
	section
3545(a),
	this
	policy-based
	reasoning
	should
	prevail.
Government
	Code
	section
	3545(a)
	requires
	that:	nment Code section 3545 (a) requires that:
(a)
	In
	each
	case
	where
	the
	appropriateness
of
	the
	unit
	is
	an
	issue,
	the
	board
	shall
decide 	the
	question
	on
	the
	basis
	of 	the
community
	of
	interest
	between
	and
	among
	the
employees
	and	
their	
established 	practices
including,
	among
	other
	things,
	the
	extent
	to
which
	such 	employees
	belong
	to 	the
	same
employee	
organization,	
and
	the
	effect
	of
	the
size
	of
	the
	unit
	on
	the
	efficient
	operation
of
	the 	school
	district.
a)
	Established
	practices
There 	has
	been
	no
	PERB
	decision
	in
	which
	the
	facts
	have
demonstrated
	prior 	negotiating 	practices
	sufficient
	to
	form
	the
basis
	for
	a
	decision.
	The
	prior 	negotiation 	practices
	in
	this
case
	were
	unilateral
	in 	nature
	and
	therefore
	are 	given
	little
weight.
b) 	Community
	of
	interest
The
	facts
	show
	a
	community
	of
	interest
	among
	the 	per
	diem
substitutes
	in
	that
	they 	are
	all
	subject
	to 	the
	same
	hiring
procedures,
	working
	conditions
	and
	supervision,
	must 	meet
	the
same
	or
	similar 	qualifications,
	have
	the
	same
	basic
	duties,
	are
paid 	the
	same
	or
	similar
	amounts, 	and 	have
	the
	same
	benefits,
or 	lack 	of
	them. 	They
	are 	subject 	to 	the
	same
	evaluation
procedure, 	the
	same
	grievance 	procedure,
	and
	the
	same
re-employment 	procedure
	at
	the
	end
	of 	each
	year.
	The
	fact 	that
they
	may
	have
	different
	reasons 	for 	substituting
	and
	that
	they
have 	no
	contact 	with 	one 	another 	does
	not,
	when
	balanced
against 	the 	similarities, 	disturb 	this 	conclusion.
17

titutes, there is little question
regarding their community of interest. Long-term and
short-term substitutes have some different duties, but the
similarities in their employment situation override this
difference. As for the adult education and children's center
substitutes, the parties offered little helpful information
regarding community of interest. In the absence of testimony
as to differences, the hearing officer assumes that the
evidence presented generally about substitutes' working
conditions applies equally to the adult education and
children's center substitutes. There is testimony that the
adult education substitute list is kept at a different
location by someone other than the clerk who keeps the K-12 and
the children's center lists. 	Presumably, calls for these
substitutes are made at a different time of day. This is the
only difference adverted to in the record between the adult
education substitutes and the other substitutes and the hearing
officer finds it to be insufficient to overcome the community
of interest otherwise found to exist.
18
Among
	the
	K-12
	substitutes,
	there
	is
	little
	question
regarding
	their
	community
	of
	interest.
	Long-term
	and
short-term
	substitutes
	have
	some
	different 	duties,
	but 	the
similarities
	in
	their
	employment
	situation
	override
	this
difference.
	As
	for 	the
	adult
	education
	and
	children's
	center
substitutes,
	the
	parties
	offered
	little
	helpful
	information
regarding
	community
	of
	interest.
	In
	the
	absence
	of
	testimony
as
	to
	differences,
	the
	hearing
	officer
	assumes
	that
	the
evidence
	presented
	generally
	about
	substitutes'
	working
conditions 	applies 	equally 	to
	the
	adult
	education
	and
children's
	center
	substitutes.
	There
	is
	testimony
	that
	the
adult
	education
	substitute
	list
	is
	kept
	at
	a
	different
location
	by
	someone
	other
	than 	the
	clerk
	who
	keeps
	the
	K-12
	and
the
	children's
	center
	lists.
	Presumably,
	calls
	for 	these
substitutes
	are
	made
	at
	a
	different
	time
	of
	day. 	This
	is
	the
only
	difference
	adverted 	to
	in 	the 	record
	between
	the
	adult
education
	substitutes
	and
	the 	other
	substitutes
	and
	the 	hearing
officer
	finds
	it
	to
	be
	insufficient
	to
	overcome
	the
	community
of
	interest
	otherwise
	found
	to
	exist.
Among the K-12 subs
The
	children's 	center 	substitute
	list
	on
	the 	other
	hand
	is
kept
	at
	the
	same
	location
	as 	the
	K-12
	list,
	but 	there
	is
	little
other 	information 	reqardinq 	the
	children's 	center 	substitutes
in 	the 	record. 	In 	Oakland
	Unified 	School
	District
	{3/28/77)
EERB
	Decision
	No.
	15, 	the 	Board, 	in 	excludinq 	both
	children's
center
	and 	K-12
	substitutes
	from
	the 	unit 	of 	reqular 	full-time
certificated
	employees, 	found
	that 	these
	two 	qroups 	of
substitutes'
workinq 	conditions 	are 	essentially 	the 	same.
18
The children's center substitute list on the other hand is
kept at the same location as the K-12 list, but there is little
other information regarding the children's center substitutes
in the record. In Oakland Unified School District (3/28/77)
EERB Decision No. 15, the Board, in excluding both children's
center and K-12 substitutes from the unit of reqular full-time
certificated employees, found that these two groups of
substitutes' working conditions are essentially the same.

This term "casual employees" is a term of art used by the
NLRB in unit determinations. The NLRB excludes employees who
are too "casual" from participation in bargaining units. 	The
extensive NLRB precedent on this issue makes this "casualness"
analysis a useful reference point for determination of this
issue.
19
Official
	notice
	is
	taken
	of
	the
	finainq 	there
	that
	althouqh
there
	are
	some
	differences
	in
	pay
	structure
	between
	K-12
	and
chilaren's
	center
	employees,
	these
	differences
	were
	not
determinative
	considered 	in
	light
	of
	the
	community
	of
interest
	otherwise
	found
	to
	exist.
	(Id.,
	at
	p.
	9.)
	The
	fact
that
	separate
	lists
	are
	kept
	is
	not,	
by	
itself.
	siqnificant.
Separate
	lists
	are 	kept 	for
	primary
	and
	secondary
	teachers
within 	the
	K-12
	qroup, 	as
	well.
Thus,
	it
	is
	found
	that
	these
	three
	qroups
	have
	a
	sufficient
community
	of
	interest
	to
	be
	included 	in 	the
	same
	unit.
The
	maier
	issue 	to
	be
	resolved 	here
	is
	whether
	oer
	diem
substitutes
	have
	a
	sufficient
	onqoinq
	interest
	in 	their
employment	
to
	warrant
	their
	being
	in
	a
	negotiating 	unit
	at
all.
	In	
this
	regard	
the
	District
	argues	
that 	per
	diem
substitutes	
do	
not	
have 	such 	an
	interest,	
but	
are 	"casual
employees. "	
employees."
Thus, it is found that these three groups have a sufficient
Official notice is taken of the finding there that although
there are some differences in pay structure between K-12 and
children's center employees, these differences were not
determinative considered in light of the community of
interest otherwise found to exist. (Id. , at p. 9.) The fact
that separate lists are kept is not, by itself, significant.
Separate lists are kept for primary and secondary teachers
within the K-12 group, as well.
The major issue to be resolved here is whether per diem
community of interest to be included in the same unit.
substitutes have a sufficient ongoing interest in their
employment to warrant their being in a negotiating unit at
all. In this regard the District arques that per diem
substitutes do not have such an interest, but are "casual
This
	term
	"casual
	employees"
	is
	a
	term
	of
	art
	used
	by
	the
NLRB
	in
	unit 	determinations.
	The
	NLRB
	excludes
	employees	
who
are
	too 	"casual"
	from
	participation
	in 	bargaining
	units.
	The
extensive
	NLRB
	precedent
	on
	this
	issue
	makes
	this
	"casualness"
analysis
	a
	useful 	reference 	point 	for 	determination 	of
	this
issue.
In making unit determinations the NLRB has identified a	
identified
	a
class of employees whose employment relation is too "casual" to	
s
	too 	"casual" 	to
In
	making
	unit 	determinations 	the
	NLRB
	has
class 	of
	employees
	whose 	employment
	relation 	i
19

justify inclusion in a negotiating unit. These 	ual
employees" are often seasonal or temporary workers who do not
have a reasonable expectation of re-employment. Aside from
the employee's expectation of re-employment, the NLRB has
relied upon regularity of work and length of service in
determining whether an employee 	This
determination is made on a case by case basis.
The above mentioned rules are most commonly applied in
situations where a unit is sought that will include arguably
20 the ruling in
1
LRRM
1434] ; S
20 	ployer here had a regular, predictable, seasonal
demand for temporary workers.
20
justify
	inclusion
	in
	a
	negotiating
	unit.	"cas
17
These
	"casual
employees"
	are
	often
	seasonal 	or
	temporary 	workers
	who
	do
	not
have
	a
	reasonable
	expectation 	of
	re-employment.
18
Aside
	from
the 	employee's
	expectation 	of
	re-employment,
	the
	NLRB
	has
relied
	upon
	regularity
	of
	work
	and
	length 	of
	service
	in
determining
	whether
	an 	employee is "casual".
is
	"casual".
19
This
determination
	is	
made	
on
	a
	case
	by
	case
	basis.
The
	above
	mentioned
	rules
	are
	most
	commonly
	applied 	in
situations
	where
	a
	unit
	is
	sought
	that 	will
	include 	arguably
"casual" 	seasonal 	or
	temporary
	employees 	in
	a
	unit
	of 	regular
full-time
	or
	part-time
	employees.
	At
	issue
	along 	with
	the
question 	of
	an
	expectation 	of 	future
	employment
	for 	the
seasonal 	or
	temporary 	workers
	is
	the
	question 	of
	a
	community
	of
interest
	between
	the 	seasonal 	or
	temporary 	employees
	on
	the
	one
hand 	and
	the
	regular
	employees
	on
	the
	other.
	The
	standard 	for
inclusion
	varies.
	Typical 	are 	the
	ruling
	in
	Trans
	World
Airlines,
	supra,
	211
	NLRB
	733,
	including 	seasonal
	workers
	who
had 	worked
	a
	minimum
	of 	three 	prior
	seasons,
20
the
	ruling 	in
7	17
e.g.
	Merkel	
&	
Sons 	(]977)
	232
	NLRB
	12 	r97
	LRRM
	1081];
Maine
	Sugar
	Industries 	Inc.
	(1968) 	169
	NLRB
	186 	[67
	LRRM
	1142];
Glynn 	Campbell 	dba
	Piggly
	Wiggly 	El
	Dorado 	Co. 	(1965) 	154
	NLRB
32 [59 LRRM 1759] .
l8Children's Hospital of Pittsburgh (1976) 222 NLRB 588	
588
[91 LRRM 1440]; Aquacultural Research Corp. (1974) 215 NLRB 1	
215
	NLRB 	1
[87
	LRRM
	1496]; 	See's
	Candy
	Shops,
	Inc.
	(1973) 	202
	NLRB
	538 	[82
LRRM 1575] .
19Transworld	
Airlines 	Inc.
	(1974) 	211
	NLRB
	733 	[86
	LRRM
1434]; 	See's
	Candy 	Shops,
	Inc., 	supra, 	fn. 	18.
2 0The 	emp]oyer 	here 	had
	a
	regular, 	predictable, 	seasonal
demand
	for 	temporary 	workers.
20
The em
Transworld Airlines Inc. (1974) 211 NLRB 733 [86
e.g. Merkel & Sons (1977) 232 NLRB 12 [97 LRRM 1081] ;
19 
children
1 s
	Hospital 	of 	Pittsburgh
	(]976)
	222
	NLRB
[91
	LRRM
	1440]; 	Aquacultural 	Research 	Corp.
	(1974)
[87 LRRM 1496] ; See's Candy Shops, Inc. (1973) 202 NLRB 538 [82LRRM
	1575].
1
8
"casual" seasonal or temporary employees in a unit of regular
full-time or part-time employees. At issue along with the
question of an expectation of future employment for the
seasonal or temporary workers is the question of a community of
interest between the seasonal or temporary employees on the one
hand and the regular employees on the other. The standard for
inclusion varies. Typical are the ruling in Trans World
Airlines, supra, 211 NLRB 733, including seasonal workers who
had worked a minimum of three prior seasons,
Maine Sugar Industries Inc. (1968) 169 NLRB 186 [67 LRRM 1142] ;
Glynn Campbell dba Piggly Wiggly El Dorado Co. (1965) 154 NLRB
32(59-·LRRM
	17
59]
.
ee's Candy Shops, Inc., supra, fn. 18.

RB 538, that only those
saleswomen who had worked 350 hours and in more than the peak
sales periods would be included in the unit, " and the ruling
in G. C. Murphy, Co. (1968) 171 NLRB 45 [68 LRRM 1108]
excluding a part-time employee who worked only intermittently,
when regular employees were absent or ill.
However, those cases in which a unit is sought which is
composed entirely of temporary or seasonal workers, as is the
unit sought here, present a different problem. In these cases
the irregularity of employment and variation in time worked is
less important because it need not be measured against the
working conditions of regular full-time employees. 	In such
cases, the standard applied by the NLRB seems to require less
regularity of employment.
A recent NLRB unit determination case, Berlitz School of
Languages (1977) 231 NLRB 116 [96 LRRM 1644], has many factual
similarities to the case at hand. There, the employer hired
language teachers on an "on call" basis. There was a much
greater demand for some languages taught by the employer than
for others and, as a consequence, there was a wide variation
among the teachers in the number of hours worked. Teachers
were free to refuse assignments, and this fact added to the
variation. If a teacher refused all assignments for six
months, that teacher was declared "inactive", but if a teacher
ployer here had five peak sales periods annually
offering a maximum of 320-400 hours for purely seasonal
employees.
21
See's
	Candy
	Shops,
	Inc.,
	~upra,
	202
	NLRB
	538,
	that
	only 	those
saleswomen
	who
	had 	worked
	350
	hours
	and
	in
	more
	than 	the
	peak
sales
	periods
	would 	be
	included 	in 	the
	unit,
See's_Candy Shops, Inc., supra, 202 NL
21
and
	the
	ruling
in
	G.
	C. 	Murphy, 	Co. 	(1968) 	171
	NLRB
	45
	[68
	LRRM
	1108]
excluding
	a
	part-time
	employee
	who
	worked
	only
	intermittently,
when
	regular
	employees
	were
	absent 	or
	ill.
However,
	those
	cases 	in
	which
	a
	unit
	is
	sought
	which
	is
composed
	entirely
	of
	temporary
	or
	seasonal
	workers, 	as
	is
	the
unit
	sought
	here, 	present
	a
	different
	problem. 	In
	these 	cases
the
	irregularity
	of
	employment 	and
	variation
	in
	time
	worked
	is
less
	important
	because
	it
	need
	not
	be
	measured
	against
	the
working
	conditions 	of 	regular
	full-time
	employees. 	In 	such
cases,
	the
	standard 	applied
	by
	the
	NLRB
	seems
	to 	require
	less
regularity
	of
	employment.
A
	recent
	NLRB
	unit
	determination
	case,
	Berlitz
	School
	of
Languages
	(1977)
	231
	NLRB
	116 	[96
	LRRM
	1644],
	has
	many
	factual
similarities
	to
	the 	case
	at
	hand.
	There, 	the
	employer
	hired
language
	teachers
	on 	an 	"on
	call" 	basis.
	There
	was
	a 	much
greater
	demand
	for
	some
	languages 	taught
	by
	the
	employer
	than
for 	others
	and, 	as
	a
	consequence,
	there
	was 	a
	wide
	variation
among
	the 	teachers 	in 	the
	number
	of 	hours 	worked.
	Teachers
were
	free 	to 	refuse 	assignments,
	and
	this 	fact
	added
	to 	the
variation. 	If
	a
	teacher 	refused
	all
	assignments 	for 	six
months,
	that 	teacher
	was
	declared 	"inactive", 	but
	if
	a
	teacher
21The
	employer 	here 	had
	five 	peak
	sales 	periods 	annually
offering
	a 	maximum
	of 	320-400 	hours 	for 	purely 	seasonalemployees.
~, The em	~L
21

NLRB Regional Director decided that the appropriate unit
included all teachers who had taught in the last six months and
who had not quit voluntarily, been dismissed for cause, or
expressed their unavailability to teach. The NLRB reversed
this determination, finding that it was too limiting because it
excluded some employees who had a reasonable expectation of
re-employment. Some teachers who taught languages for which
there was not much demand had not taught in the last six months
but could reasonably expect to be called in the future when a
demand for their language eventually occurred. The Board held
that the correct unit included all those teachers who had
taught on more than one occasion within the last year. Thus, a
teacher who had taught for as little as two hours in the
previous year could be included in the unit and would be
eligible to vote in the representation election.
The NLRB has exhibited a similar emphasis on the practical
question of expectation of future employment in unit
determinations of film industry employees. In this industry,
employees are hired for a particular production and then their
employment is terminated without any promise of re-employment.
Employment for some individuals may be only for one day per
production. As a practical matter film industry employees who
perform satisfactory work have a reasonable expectation of
being employed on future productions. Because of this the NLRB
in American Zoetrope Productions, Inc. (
22
did 	not
	work
	for
	more
	than
	six
	months
	because
	of
	Jack
	of
demand,
	then
	that
	teacher
	remained
	on
	the
	active
	list.
	The
NLRB
	Regional
	Director
	decided
	that
	the
	appropriate
	unit
included
	all
	teachers
	who
	had
	taught 	in 	the
	last
	six
	months 	and
who
	had
	not
	quit 	voluntarily,
	been
	dismissed 	for 	cause, 	or
expressed
	their 	unavailability
	to 	teach.
	The
	NLRB
	reversed
this
	determination, 	finding
	that
	it
	was
	too
	limiting
	because
	it
excluded
	some
	employees
	who 	had 	a
	reasonable
	expectation 	of
re-employment.
	Some
	teachers
	who
	taught
	languages 	for
	which
there
	was
	not
	much
	demand
	had
	not
	taught 	in 	the
	last
	six
	months
but 	could 	reasonably 	expect 	to
	be
	called
	in 	the
	future
	when
	a
demand
	for
	their
	language
	eventually 	occurred.
	The
	Board
	held
that
	the
	correct
	unit
	included
	all
	those
	teachers
	who
	had
taught
	on 	more
	than
	one
	occasion 	within 	the
	last
	year.
	Thus,
	a
teacher
	who
	had
	taught 	for 	as
	little
	as
	two
	hours 	in 	the
previous 	year 	could
	be
	included 	in 	the
	unit
	and 	would 	be
eligible
	to
	vote 	in 	the
	representation 	election.
The
	NLRB
	has
	exhibited
	a
	similar
	emphasis
	on
	the
	practical
question 	of 	expectation 	of 	future
	employment
	in 	unit
determinations 	of 	film 	industry
	employees. 	In
	this 	industry,
employees
	are 	hired 	for
	a
	particular
	production
	and
	then
	their
employment
	is
	terminated 	without
	any
	promise
	of 	re-employment.
Employment
	for
	some
	individuals
	may
	be
	only 	for
	one 	day
	per
production.
	As 	a
	practical 	matter 	film 	industry
	employees
	who
perform
	satisfactory
	work 	have
	a
	reasonable 	expectation 	of
being 	employed 	on
	future 	productions. 	Because 	of 	this 	the
	NLRB
in American 	Zoe
trope 	Product ions, 	Inc.	1973) 207 NLRB 102 [84
22
did not work for more than six months because of lack of
(l
97 3) 	207 	NLRB 	102 	[ 84
demand, then that teacher remained on the active list. The

LRRM 1491], gave voting eligibility within a group of film
editorial workers to all such workers who had been employed on
at least two productions during the prior year, even if only
for one d 	2
substitutes can indeed be formed. As a practical matter, these
substitutes have a reasonable expectation of re-employment.
The District has a predictable and stable need for the services
of many substitutes. Once on the substitute list, substitutes
can be assured of being called often. The substitute clerk's
testimony establishes that substitutes who work less than one
quarter of the school days must have made themselves to some
degree unavailable, and that it is highly unusual for a
substitute to work less than ten days during the year. 	A
substitute who has performed satisfactorily is assured of an
invitation to sign up for the next year's list. Obviously, the
individuals in any unit of per diem substitutes in this
District will have an expectation of future employment.
This expectation, coupled with the regularity of their
employment and the amount of time worked far exceed the
standard required by the NLRB when it made favorable unit
determinations in Berlitz, supra, 231 NLRB 116, and American
Zoetrope Production
22 Accord Medion, Inc. (1972) 200 NLRB 1013 [82 LRRM
1037] .
23
LRRM 	1491], 	gave 	voting 	eligibility 	within 	a 	group 	of 	film
editorial 	workers 	to 	all 	such 	workers 	who 	had 	been 	employed 	on
at 	least 	two 	productions 	during 	the 	prior 	year, 	even 	if 	only
for 	one 	day 	on 	each 	production. 22
The 	reasoning 	of 	these 	decisions, 	if 	applied 	to 	the 	present
case, 	leads 	to 	the 	conclusion 	that 	a 	unit 	of 	per 	diem
substitutes 	can 	indeed 	be 	formed. 	As 	a 	practical 	matter, 	these
substitutes 	have 	a 	reasonable 	expectation 	of 	re-employment.
The 	District 	has 	a 	predictable 	and 	stable 	need 	for 	the 	services
of 	many 	substitutes. 	Once 	on 	the 	substitute 	list, 	substitutes
can 	be 	assured 	of 	being 	called 	often. 	The 	substitute 	clerk's
testimony 	establishes 	that 	substitutes 	who 	work 	less 	than 	one
quarter 	of 	the 	school 	days 	must 	have 	made 	themselves 	to 	some
degree 	unavailable, 	and 	that 	it 	is 	highly 	unusual 	for 	a
substitute 	to 	work 	less 	than 	ten 	days 	during 	the 	year. 	A
substitute 	who 	has 	performed 	satisfactorily 	is 	assured 	of 	an
invitation 	to 	sign 	up 	for 	the 	next 	year's 	list. 	Obviously, 	the
individuals 	in 	any 	unit 	of 	per 	diem 	substitutes 	in 	this
District 	will 	have 	an 	expectation 	of 	future 	employment,
This 	expectation, 	coupled 	with 	the 	regularity 	of 	their
employment 	and 	the 	amount 	of 	time 	worked 	far 	exceed 	the
standard 	required 	by 	the 	NLRB 	when 	it 	made 	favorable 	unit
determinations 	in 	Berlitz, 	supra, 	231 	NLRB 	116, 	and 	American
Zoetrope 	Productions,	s, supra, 207 NLRB 102. Therefore, it is
concluded 	that 	all 	the 	per 	diem 	substitutes 	in 	the 	requested
22 	Accord 	Median, 	Inc. 	(1972) 	200 	NLRB 	1013 	[82 	LRRM
1037].
The reasoning of these decisions, if applied to the present
ay on each production. 2
23
case, leads to the conclusion that a unit of per diem
~upra, 	207 	NLRB 	102. 	Therefore, 	it 	is
concluded that all the per diem substitutes in the requested

unit have a sufficient community of interest and that the
formation of an appropriate unit of per diem substitutes is not
prevented by any "casualness" of employment.
(c) Effect of the size of the unit on the efficient operation
of the school district
The hearing officer finds that the size of the proposed
unit may well work to the advantage of the District with
respect to efficiency of operations in that it includes all of
the District's per diem substitutes. 23 	The District has many
objections to the unit in terms of its efficiency of operation,
as outlined in the Findings of Fact, supra. But, there is
nothing in the record substantial enough to support a finding
that efficiency of operations will be significantly impaired.
Possible membership in other units
Finally, the fact that some persons on the substitute list
are also on the substitute lists in other districts, or are
members of another unit within the same district does not
impede the formation of a unit here. Under the NLRA, employees
There is no reason not to do
the same here. Some conflict may be created for individuals
who also belong to the regular certificated unit, "but this
ernative, which would arguably work to the
District's 	dvantage, would be to divide up the per diem
substitutes into separate units of K-12, adult education, and
children's center substitutes.
24
some
occasio 24
unit
	have
	a
	sufficient
	community
	of
	interest
	and
	that
	the
formation
	of
	an
	appropriate
	unit 	of
	per
	diem
	substitutes
	is
	not
prevented 	by	
any
	"casualness"
	of
	employment.
(c)
	Effect
	of 	the
	size
	of
	the
	unit
	on
	the
	efficient
	operationof 	the 	school
	district
The
	hearing
	officer
	finds
	that
	the
	size
	of
	the
	proposed
unit	
may	
well
	work
	to
	the 	advantage
	of
	the
	District
	with
respect
	to
	efficiency
	of 	operations
	in
	that
	it
	includes
	all
	of
the
	District's
	per
	diem
	substitutes.
23 The
	District
	has
	many
objections
	to
	the
	unit
	in
	terms
	of
	its
	efficiency
	of
	operation,
as
	outlined
	in 	the 	Findings
	of 	Fact, 	supra.
	But,
	there
	is
nothing 	in 	the 	record
	substantial
	enough
	to 	support
	a
	finding
that 	efficiency
	of 	operations
	will
	be
	significantly
	impaired.
(d)	
(d)
	Possible
	membership
	in
	other 	units
Finally,
	the
	fact 	that
	some
	persons	
on	
the
	substitute
	list
are
	also
	on
	the
	substitute
	lists
	in 	other
	districts,
	or 	are
members
	of
	another
	unit
	within 	the
	same
	district
	does
	not
impede
	the 	formation 	of
	a
	unit 	here.
	Under
	the
	NLRA,
	employees
have 	been
	included 	in 	bargaining
	units
	even 	though
	they
	also
may 	work
	for 	other
	employers.
24
have been included in bargaining units even though they also
There
	is
	no
	reason 	not 	to
	do
the
	same
	here.
	Some
	conflict
	may 	be
	created 	for 	individuals
who
	also
	belong
	to 	the 	regular
	certificated 	unit,
25
but
	this
23	23An
	alternative,
	which 	would
	arguably
	work
	to 	the
District's	disa	
disadvantage,
	would 	be
	to 	divide
	up
	the 	per
	diem
substitutes 	into 	separate 	units 	of
	K-12, 	adult 	education,
	and
children's 	center 	substitutes.
24E.g. Henry Lee Co. (1972) 194 NLRB 1107 [79 LRRM
1159]; 	All
	Work,
	Inc.
	(1971) 	193
	NLRB
	918 	[78
	LRRM
	1401].
25Regarding 	the 	fact 	that 	regular 	teachers 	on 	some
occasions 	must 	"pay 	for" 	the 	substitute.
25
An alt
Regarding the fact that regular teachers on
E.
24
g.
	Henry 	Lee 	Co.
	(
197 2) 	194 	NLRB
	1107 	[79
	LRRM
1159]; All Work, Inc. (1971) 193 NLRB 918 [78 LRRM 1401] .
ns must "pay for" the substitute.
may work for other employers.

is not of a nature that would tend to destroy the community of
interest within a substitute unit.
In the light of the above analysis, it is found that an
appropriate unit of per diem substitutes can and should
3 . 	The unit should be composed of all substitutes on the
current active list who have worked in the current year or the
prior year .
26Eugene Substitute Teachers Organization V. Eugene
School District 4-J (Oregon 1976) 1 PECBR 716 aff'd. sub nom
25
is
	not
	of
	a
	nature
	that
	would
	tend
	to 	destroy
	the
	community
	of
interest
	within
	a
	substitute 	unit.
In
	the
	light
	of
	the
	above
	analysis,
	it
	is
	found
	that
	an
appropriate 	unit
	of
	per
	diem
	substitutes
	can	be
and
	should
	be
established.
	It
	should
	be
	noted
	in
	this
	regard
	that
	among
other
	states
	with
	similar
	public
	employment
	statutes,
	of 	those
who
	have
	considered
	this
	same
	issue,
	many
	have 	found
	that
	per
diem
	substitute
	units
	are
	appropriate.
26
3.
	The
	unit
	should
	be 	composed
	of
	all
	substitutes
	on
	the
current 	active
	list
	who
	have
	worked
	in 	the
	current
	year
	or 	the
prior
	year.
Using the reasoning of Berlitz, supra, 231 NLRB 116, and
American
	Zoetrope
	Productions,
	Inc.,
	supra,
	207
	NLRB
	102,
	that
all
	those
	employees
	with
	a
	reasonable 	expectation 	of
	employment
should
	be
	included 	in 	the
	unit,
	the
	hearing
	officer
	concludes
that
	all
	those 	persons
	on
	the
	District's
	current 	active
	list
who
	taught
	last
	year 	or
	this
	year 	should
	be
	within 	the
	unit.
By
	"on
	the
	active
	list"
	is
	meant
	all
	those
	substitutes
	who
	have
not
	made
	themselves 	completely 	unavailable 	for
	an
	indefinite
period of time.	
period 	of 	time. 	Included	
in 	the
	unit
	are 	those
	substitutes
	who
·
have
	partially
	limited 	their 	availability 	(e.g.,
	as 	to 	schools
26
Eugene
	Substitute
	Teachers 	Organization
	v. 	Eugene
School
	District 	4-J
	(Oregon
	1976) 	1 PECBR 	716
	aff'd.
	sub
	nom
Eugene 	School
	District
	No.
	4-J
	v. 	Eugene
	Education Association
(Oregon 	Ct.
	App. 	1977) 	572
	P.2d
	650;
	Philadelphia
	School
District
	(Pa.
	1975) 	5 	PPER 	113;
	Milwaukee 	Board
	of
	School
Directors
	(Wisc.
	1969)
	Decision
	No. 	8901;
	Reese
	Public 	School
District
	(Mich. 	1969) 	1969
	MERC
	Lab.
	Op. 	253.
Using
25
established. It should be noted in this regard that among
Eugene School District No. 4-J v. Eugene Education Association
(Oregon Ct. App. 1977) 572 P. 2d 650; Philadelphia School
District (Pa. 1975) 5 PPER 113; Milwaukee Board of School
Directors (Wisc. 1969) Decision No. 8901; Reese Public School
District (Mich. 1969) 1969 MERC Lab. Op. 253.
other states with similar public employment statutes, of those
who have considered this same issue, many have found that per
diem substitute units are appropriate.
the 	reasoning
	of~Berlitz,
	supra,
	231
	NLRB
	116,
	and
American Zoetrope Productions, Inc. , supra, 207 NLRB 102, that
all those employees with a reasonable expectation of employment
should be included in the unit, the hearing officer concludes
that all those persons on the District's current active list
who taught last year or this year should be within the unit.
By "on the active list" is meant all those substitutes who have
not made themselves completely unavailable for an indefinite
Included in the unit are those substitutes who
have partially limited their availability (e.g., as to schools

That board had decided that there was no
logical place to draw a line between a substitute who has
worked one half day per year and one who has worked 182 days,
when both have a reasonable expectation of re-employment.
Other state boards have shown no more persuasive analysis in
27
26
at
	which
	they
	are
	willing
	to
	teach),
	or
	who
	have
	made
themselves
	unavailable 	for
	a
	determinate 	period
	(e.g.,
	a
	week,
a
	month,
	Fridays).
	Not
	included 	in 	the
	unit
	are
	those
substitutes
	who
	have
	made
	themselves
	unavailable
	until
	further
notice,
	or
	who	
have	
been
	declared 	to
	be
	"inactive"
	by
	the
District
	because 	they
	have
	refused
	too
	many 	work
	calls.
	Also
not 	included
	are
	substitutes
	who
	have 	been	
removed	
from
	the
list
	by
	the
	District
	for 	cause.
Once 	a
	substitute 	is
	on
	the
	District's
	"active"
	list
	that
substitute
	has 	every
	expectation 	of
	being
	called
	to
	work, 	and
is
	assured
	of
	being
	invited 	to 	re-apply 	for
	placement
	on
	the
list
	the 	following 	years
	if
	he
	or
	she 	has 	performed
satisfactorily
	and
	has
	up-to-date
	credentials.
	For
	this
reason,
	whether
	and
	how
	often
	a
	substitute
	has
	worked
	for 	the
District
	in 	the
	past
	has
	no
	bearing
	on
	inclusion 	in 	the
	unit.
It
	should
	be
	noted
	that
	in
	a
	recent 	decision 	the
	Court
	of
Appeals
	of
	Oregon
	affirmed 	the 	determination
	by
	that
	state's
Employment
	Relations
	Board
	that
	a
	unit 	of
	per
	diem
	substitutes
was
	appropriate,
	without
	any
	unit 	delineation
	based
	upon 	number
of
	days 	employed.
27
That 	board
	had
	decided
	that 	there
	was 	no
logical
	place 	to
	draw 	a
	line
	between
	a
	substitute
	who
	has
worked 	one
	half
	day
	per 	year
	and 	one
	who
	has
	worked 	182
	days,
when
	both 	have
	a
	reasonable 	expectation 	of
	re-employment.
Other
	state
	boards 	have
	shown 	no 	more
	persuasive 	analysis 	in
2 7Eugene 	School	
District
	No.
	4-J 	v.
	Eugene 	Education
Association
	(Oregon
	Ct.
	App. 	1977) 	572 	P.2d 	650.
26
at which they are willing to teach) , or who have made
Eugene School District No. 4-J v. Eugene Education
Association (Oregon Ct. App. 1977) 572 P. 2d 650.
Once a substitute is on the District's "active" list that
substitute has every expectation of being called to work, and
is assured of being invited to re-apply for placement on the
list the following years if he or she has performed
satisfactorily and has up-to-date credentials. For this
reason, whether and how often a substitute has worked for the
District in the past has no bearing on inclusion in the unit.
It should be noted that in a recent decision the Court of
Appeals of Oregon affirmed the determination by that state's
Employment Relations Board that a unit of per diem substitutes
was appropriate, without any unit delineation based upon number
of days employed. "
themselves unavailable for a determinate period (e.g., a week,
a month, Fridays) . Not included in the unit are those
substitutes who have made themselves unavailable until further
notice, or who have been declared to be "inactive" by the
District because they have refused too many work calls. Also
not included are substitutes who have been removed from the
list by the District for cause.

t
In li
(4) Voting eligibility
The parties have stipulated as to the eligibility of unit
members to vote in the representation election and this
stipulation is adopted. All per diem substitutes who are on
the District's current active list and who worked a minimum of
nine days between the beginning of the 1976-1977 school year
and the date of the election are found eligible to vote. The
record shows that it is highly unlikely that substitutes on the
active list will serve less than ten days in a given year.
Therefore, this limitation is reasonable in that it excludes
28
27
th	heir unit determinations. 28
28
The
	NLRB
	also
	has 	followed
	a
	practice
	of
	including
	all
temporary
	and
	seasonal
	workers
	in
	a
	unit
	of
	those 	workers,
without
	drawing
	a
	line
	based
	on
	the
	number
	of
	days
	served 	in
previous
	years,
	at
	least
	when
	there
	is
	some
	other 	basis
	for
	a
conclusion
	that
	the
	employees 	have
	a
	reasonable
	expectation 	of
re-employment.
e1r
	·
ght of the above analysis, it is found
The NLRB also has followed a practice of including all
temporary and seasonal workers in a unit of those workers,
without drawing a line based on the number of days served in
previous years, at least when there is some other basis for a
conclusion that the employees have a reasonable expectation of
re-employment. "
that the unit should include all active substitutes who have
worked at any time in the current or prior year, without regard
to the amount of time worked.
uni
· t 	d e t
erm1na
	· 	t
ions.	
·
29
In
	light
	of
	the
	above
	analysis,
	it
	is
	found
that
	the
	unit
	should
	include
	all
	active
	substitutes
	who
	have
worked
	at
	any
	time
	in 	the
	current
	or
	prior
	year,
	without 	regard
to 	the
	amount
	of
	time 	worked.
(4)
	Voting
	eligibility
The
	parties
	have
	stipulated
	as
	to
	the
	eligibility
	of 	unit
members
	to
	vote 	in 	the
	representation 	election
	and
	this
stipulation 	is
	adopted. 	All 	per
	diem
	substitutes
	who
	are
	on
the
	District's
	current 	active
	list
	and
	who
	worked
	a 	minimum
	of
nine	
days 	between	
the 	beginning	
of	
the 	1976-1977 	school
	year
and
	the	
date 	of
	the
	election	
are	
found
	eligible	
to 	vote.	
The
record
	shows
	that	
it
	is	
highly 	unlikely 	that	
substitutes
	on	
the
active
	list
	will
	serve	
less
	than	
ten
	days
	in
	a
	given 	year.
Therefore,
	this 	limjtation	
is	
reasonable	
in	
that	
it
	excludes
those 	persons 	without	
an	
ongoing	
interest
	in
	substitute
employment.
28see, 	e.g.	
Philadelphia 	School	
District,	
.§_Upra, 	5 	PPER
113,	
(per 	diem	
substitutes
	who 	worked
	less
	than 	the 	median,	
22
days, were excluded from the unit) ; Milwaukees Board of School
Directors,	
supra, 	Decision
	No.
	8901,
	(all
	included 	in 	unit 	butonly 	those	
who 	had 	taught	
30 	days 	the 	previous 	year 	were
eligible 	to 	vote).
29
see, e.g. Philadelphia School District, supra, 5 PPER
27
those persons without an ongoing interest in substitute
employment.
113, (per diem substitutes who worked less than the median, 22
days, 	were 	excluded	
from 	the	
unit);	
Milwaukee~	
Board	
of 	School
Directors, supra, Decision No. 8901, (all included in unit but
only those who had taught 30 days the previous year were
eligible to vote) .
29Berlitz 	School 	of 	Languages, 	supra, 	231 	NLRB
	116;American 	Zoetrope 	Productions, 	Inc.~supra,
	207
	NLRB
	102: 	R.B.
Butler 	Inc. 	(1966) 	160 	NLRB 	1595 	[63
	LRRM
	1733] 	(construction
industry) ; Trammel Construction Co. , Inc. (1960) 126 NLRB 1365	126 	NLRB 	1365
[45 	LRRM 	14 	9 	.
Berlitz School of Languages, supra, 231 NLRB 116;
American Zoetrope Productions, Inc., supra, 207 NLRB 102; R.B.
Butler Inc. (1966) 160 NLRB 1595 [63 LRRM 1733] (construction
industry)~ 	Trammel 	Construction 	Co., 	Inc. 	(1960)
[45 LRRM 1489].

Proposed Order
It is the Proposed Order that the following unit is
Within ten (10) workdays after the District posts the
Notice of Decision, the OEA shall demonstrate to the Regional
Director at least thirty (30) percent support in the above
unit. 	The Regional Director shall conduct an election at the
end of the posting period if the OEA qualifies for the ballot
and the employer does not grant voluntary recognition.
Voluntary recognition requires majority proof in all cases.
Government Code sections 3544 and 3544.1.
28
Proposed 	Order
It 	is 	the 	Proposed 	Order 	that 	the 	following 	unit 	is
appropriate 	for 	meeting 	and 	negotiating, 	provided 	an 	employee
organization 	becomes 	the 	exclusive 	representative:
All certificated substitute teachers, who
are 	on 	the 	Oakland 	Unified 	School 	District's
current 	active 	list 	and 	who 	have 	worked 	in
the 	current 	year 	or 	the 	prior 	year. 	This
unit 	jncludes 	K-12, 	adult 	education, 	and
children's 	center 	substitutes.
Members 	of 	the 	unit 	are 	eligible 	to 	vote 	in 	an 	election 	for
exclusive 	representative 	if 	they 	have 	worked 	a 	minimum 	of 	nine
(9) 	days 	between 	the 	beginning 	of 	the 	1976-1977 	school 	year 	and
the 	date 	of 	the 	election.
The 	parties 	have 	twenty 	(20) 	calendar 	days 	following 	the
date 	of 	service 	of 	this 	Proposed 	Decision 	in 	which 	to 	file
exceptions 	in 	accordance 	with 	sectjon 	32300 	of 	the 	Board's
rules 	and 	regulations.
If 	no 	party 	files 	timely 	exceptions, 	this 	Proposed 	Decision
will 	become 	final 	on 	May 26, 1978 	and 	a 	Notice 	of
Decision 	wi]l 	issue 	from 	the 	Board.
Within 	ten 	(10) 	workdays 	after 	the 	District 	posts 	the
Notice 	of 	Decision, 	the 	OEA 	shall 	demonstrate 	to 	the 	Regional
Director 	at 	least 	thirty 	(30) 	percent 	support 	in 	the 	above
unit. 	The 	Regional 	Director 	shall 	conduct 	an 	election 	at 	the
end 	of 	the 	posting 	period 	if 	the 	OEA 	qualifies 	for 	the 	ballot
and 	the 	employer 	does 	not 	grant 	voluntary 	recognition.
Voluntary 	recognition 	requires 	majority 	proof 	in 	all 	cases.
Government 	Code 	sections 	3544 	and 	3544.1.
28
appropriate for meeting and negotiating, provided an employee
If no party files timely exceptions, this Proposed Decision
will become final on 	:tvr.ay 26, 1978 	and a Notice of
Decision will issue from the Board.
The parties have twenty (20) calendar days following the
date of service of this Proposed Decision in which to file
exceptions in accordance with section 32300 of the Board's
rules and regulations.
Members of the unit are eligible to vote in an election for
exclusive representative if they have worked a minimum of nine
(9) days between the beginning of the 1976-1977 school year and
the date of the election.
AlJ 	certificated 	substitute 	teachers, 	who
are on the Oakland Unified School District's
current active list and who have worked in
the current year or the prior year. This
unit includes K-12, adult education, and
children's center substitutes.
organization becomes the exclusive representative:

to establish the number of employees in the
above unit will be the date of this decision unless another
date is deemed appropriate by the Regional Director and noticed
to the parties. In the event another date is selected, the
Regional Director may extend the time for the OEA to
demonstrate at least thirty (30) percent support in the unit.
Dated : 	May 3, 1978
The
	date
	used
	to
	establish
	the
	number
	of
	employees
	in
	the
above
	unit 	will
	be
	the
	date 	of
	this
	decision
	unless 	another
date
	is
	deemed
	appropriate
	by
	the 	Regional
	Director
	and
	noticed
to
	the
	parties.
	In
	the 	event 	another 	date
	is
	selected,
	the
Regional
	Director
	may
	extend 	the
	time
	for
	the
	OEA
	to
demonstrate
	at 	least 	thirty
	(30)
	percent 	support 	in 	the
	unit.
The date used
29
Dated:	
May 3, 	1978
MICHAEL J. TONSING
Hearing Officer
29