Modesto City Schools (PERB 0384E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MODESTO 	CITY SCHOOLS,
Employer,
and
MODESTO 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Employee 	Organization.
Case No. 	S-UM-159
S-UM-160
S-UM-161
PERB Decision No. 	384
May 15, 	1984
Appearances; 	Ken Burt, 	Attorney 	and Executive Director 	for
Modesto Teachers Association, 	CTA/NEA; 	Louis T. 	Lozano,
Attorney 	(Breon, 	Galgani, 	Godino and O'Donnell) 	for Modesto
City Schools.
Before Jaeger, 	Morgenstern and Burt, Members.
DECISION
JAEGER, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB or Board) 	on exceptions 	filed 	by 	the
Modesto City Schools 	(District) 	to 	that portion of 	the 	hearing
officer's proposed 	decision, 	attached 	hereto, 	finding 	that 	the
existing 	certificated 	unit 	should 	be modified 	to 	include 	the
positions 	of 	Counselor-Assistant 	and 	Psychologist-Intern.1
1In 	its 	original 	unit modification petition, 	the Modesto
Teachers Association 	(Association) 	requested 	that 	the 	position
of Preformal/Permit Teacher 	be 	included 	in 	the 	certificated
unit. 	In his proposed 	decision, 	the 	hearing officer 	concluded
that 	this 	position 	should 	be 	included 	in 	the 	certificated
unit. 	The District 	filed 	no exceptions 	to 	this 	determination.
PERB 	rule 32300 (c), 	codified at title 8 of the California
Administrative Code, 	provides 	that 	"an exception 	not
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specifically 	urged 	shall 	be 	waived." 	Since 	no exceptions 	were
filed 	to 	the 	determination 	that Preformal/Permit Teachers
should 	be 	included 	in 	the 	certificated 	unit, 	that portion of
the 	hearing 	officer's 	determination 	is 	affirmed.
The 	Association 	also 	requested 	that 	the 	positions 	of Program
Specialist/Infant-Toddler 	and 	Children's 	Center 	Head 	Teacher
should 	be 	included 	in 	the 	unit. 	In his 	proposed 	decision, 	the
hearing 	officer 	found 	that 	the 	Program Specialist 	position
should 	be 	excluded 	from 	the 	unit 	as 	supervisory 	and 	that 	the
Head Teacher 	position 	should 	be 	placed 	in 	the 	unit. 	Both 	the
District 	and 	the Association 	originally excepted 	to 	the 	hearing
officer's 	findings with 	respect 	to 	these positions, 	but
thereafter 	reached 	a 	settlement 	agreement. 	This 	agreement
provided, 	inter 	alia, 	that 	the Association would withdraw 	its
exceptions 	to 	the 	hearing 	officer's 	proposed 	decision 	with
regard 	to 	the 	position 	of 	Program Specialist/Infant-Toddler,
and 	would 	withdraw 	altogether 	its 	unit 	modification 	request
with 	respect 	to 	the 	position of 	Children's 	Center 	Head Teacher.
Since 	the Association no 	longer 	excepts 	to 	the 	hearing
officer's 	finding 	that 	the 	position 	of Program Specialist
should 	be 	excluded 	from 	the 	certificated 	unit 	as 	supervisory,
we 	affirm 	that 	portion of 	the 	proposed 	decision.
With 	regard 	to 	the Association's 	request 	that 	it be 	permitted
to 	withdraw 	its 	unit 	modification 	petition 	concerning 	the
position 	of Children's 	Center 	Head Teacher, 	PERB 	rule 	33430
expressly permits 	withdrawal 	so 	long 	as 	a 	final Board 	decision
has 	not 	issued on the matter. 	That 	rule provides, 	in 	relevant
part:
Any 	petition 	requesting 	action 	to 	resolve 	a
representation dispute 	may 	be 	withdrawn 	by
the 	petitioner 	in writing 	at 	any 	time 	prior
to 	a 	final 	decision 	by 	the Board 	pursuant 	to
a 	voluntary 	agreement 	among 	the 	parties.
Since, 	at the 	time 	the parties' 	request was made, 	the Board had
not 	issued 	a 	final 	decision 	in 	this 	case, 	the 	unit modification
petition 	could 	be 	withdrawn 	as 	to 	the 	position of 	Children's
Center Head Teacher. 	Accordingly, 	that 	portion of 	the 	hearing
officer's 	proposed 	decision 	concerning 	the 	position 	of
Children's 	Center 	Head Teacher 	is 	vacated.
With 	respect 	to 	the 	position of Counselor Assistant, 	we
have 	reviewed 	the 	hearing 	officer's 	findings 	of 	fact 	and
N	
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conclusions 	of 	law 	and, 	finding 	them 	free 	from prejudicial
error, 	adopt 	them as 	the 	determination of 	the Board 	itself.
For 	the 	reasons 	which 	follow, 	we 	also 	affirm the 	hearing
officer's 	determination 	that 	the 	position 	of
Psychologist-Intern 	is 	appropriately 	placed 	in 	the 	certificated
unit.
FACTS
The Psychologist-Intern, Ms. 	Rogers, 	carries a full
caseload 	similar 	to 	that 	of other 	regular 	Psychologists. 	She
works 	full-time, 	performs 	the 	same duties as other
Psychologists, 	attends Psychologist staff meetings, 	and 	is
introduced 	to 	parents 	and 	staff 	as 	a 	regular 	School
Psychologist. 	She 	receives 	the 	same 	fringe 	benefits 	as other
certificated 	employees, 	but 	is paid 	50 percent of 	a
Psychologist's 	wage. 	She 	is 	a member 	of 	the Modesto Teachers
Association, 	and 	as 	a 	result of 	negotiations 	between 	the
Association 	and 	the 	District 	received 	a 	salary 	increase. 	While
interns 	have 	no 	guarantee 	of 	continued 	employment, 	the District
has 	hired 	former 	interns 	as 	regular 	Psychologists 	when 	openings
were 	available.
Ms. 	Rogers 	is 	a student 	in an 	internship program at
California State University 	at Stanislaus 	(University). 	The
position 	of Psychologist-Intern 	is 	provided 	by 	an 	agreement
between 	the District 	and 	the University. 	Ms. 	Rogers 	is 	in 	the
internship program 	in 	order 	to 	satisfy 	the 	state 	requirement
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that 	one must 	perform an 	internship 	in 	order 	to obtain 	a
credential 	as 	a School Psychologist. 	As 	a condition of
employment, 	Pychologist-Interns must possess 	a Pupil Personnel
Services 	credential, 	which 	certifies 	the 	intern has 	completed 	a
particular 	course 	of 	study 	and 	is 	ready 	to 	"go out 	into 	the
field." 	Ms. 	Rogers 	has 	the 	credential. 	She has no association
with 	the 	University 	other 	than 	attending 	monthly 	internship
meetings. 	She 	is 	not 	enrolled 	at 	the University and 	attends 	no
classes.
The 	Psychologist-Intern 	has 	an 	intern 	supervisor 	at 	the
University with 	whom 	she 	meets 	monthly 	and 	has 	two
"mentor-Psychologists" 	within 	the 	school 	district who 	review
and 	sign 	the 	reports 	she 	files. 	These mentors 	also 	evaluate
the 	intern's work, 	but most of 	the Psychologist-Intern's 	case
work 	is 	handled 	independently of 	either 	the 	supervisor 	or 	the
mentors, 	and 	there 	is 	no 	showing 	that 	they direct 	her 	work or
require 	her 	to 	get 	their 	approval 	before 	initiating 	activities.
DISCUSSION
Subsection 	3540.1(j) 	of 	the Educational Employment
Relations Act 	(EERA or 	Act)2 defines 	a 	public 	school 	employee
as 	"any person 	employed 	by 	any 	public 	school 	employer." 	PERB
has 	decided 	only one 	case 	under EERA 	in which 	the 	status of
2 The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	references 	are 	to 	the 	Government Code 	unless
otherwise 	indicated.
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interns 	as employees 	or 	students 	was 	at 	issue. 	New Haven
Unified 	School 	District 	(3/22/77) 	EERB 	Decision 	No. 	14.3 In
New Haven, 	supra, 	the Board held 	that where 	an 	intern's
employment 	is 	incidental 	to his/her 	educational 	concerns 	he/she
will 	not be 	considered 	an employee. 	Conversely, 	when 	the
intern's 	educational 	goals 	are 	secondary 	to his/her 	employment,
he/she 	will be 	an 	employee 	for 	the 	purposes of 	the Act. 	Under
the 	facts 	of New Haven, 	supra, 	the Board held 	that 	the Stanford
interns 	were 	not 	employees 	under EERA.
We 	find 	it 	appropriate 	to 	apply 	the 	test 	articulated 	in New
-
Haven, 	supra, 	to the 	facts 	in 	this 	case.4 The District
argues, 	however, 	that we 	should 	adopt 	the National Labor
Relations Board's 	(NLRB) 	test 	for 	determining whether 	interns
are 	employees 	under 	the National Labor 	Relations Act 	(NLRA) 	and
follow 	a 	long 	line 	of NLRB 	decisions 	which 	have 	excluded
medical 	interns 	from bargaining 	units. 	See St. 	Claire's
Hospital 	and Health Center 	(1977) 	229 NLRB 	1000 	[95 LRRM 1180];
3Prior 	to January 1, 	1978, 	PERB was 	known as 	the
Educational Employment Relations Board 	(EERB).
4In 	holding 	that 	the Psychologist-Intern was 	an 	employee
under EERA, 	the 	hearing officer 	relied 	in part 	on 	the 	test 	set
forth 	in Regents 	of 	the 	University of 	California 	(Physicians
National Housestaff Association) 	(2/14/83) 	PERB Decision No.
283-H 	for 	determining 	employee 	status 	under 	the Higher
Education Employer-Employee Relations Act 	(HEERA), 	Government
Code 	section 	3560 	et 	seq. 	He 	argued 	that, 	while EERA contains
no 	statutory 	section 	comparable 	to HEERA subsection 	3562(f),
the Housestaff 	test 	could 	be 	applied 	to 	cases 	arising 	under
EERA by 	analogy. 	Since 	we 	find 	this 	case 	to be 	governed 	by 	the
test 	articulated 	in New Haven, 	supra, 	we 	need not base our
finding 	on 	any 	analogy 	to 	the 	HEERA 	standard.
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Cedars-Sinai Medical Center 	(1976) 	223 NLRB 	251 	[91 LRRM 1398];
Buffalo General Hospital 	(1976) 	224 NLRB 	17 	[97 LRRM 1197];
Clark County Mental Health Center 	(1976) 	225 NLRB 	780 	[92 LRRM
1545].
Under 	the NLRA, 	a student 	is 	not 	an 	"employee" 	when his/her
employment 	interest 	is 	"predominantly 	academic 	rather 	than
economic 	in nature." 	St. 	Claire's Hospital & Health Center,
supra, 	229 NLRB 	at 1002. 	Contrary to the District's 	assertion,
we 	find 	that 	the 	test 	for 	determining 	whether 	interns 	are
employees 	under 	the NLRA does 	not 	diverge 	from 	the 	test 	adopted
by 	this 	agency. 	Both 	administrative 	bodies 	have 	found
particular 	students 	not 	to 	be 	employees 	when 	their 	employment
interests 	are 	predominantly 	academic 	rather 	than 	economic 	in
nature. 	Since 	the NLRB's 	test 	is 	essentially 	indistinguishable
from 	that 	articulated 	by 	this Board 	in New Haven, 	the 	federal
cases 	cited 	by 	the 	District merely 	reflect 	the 	application of
that 	test 	to a different 	factual 	record 	than 	that 	before 	us 	in
this 	case.5 We conclude, 	therefore, 	that 	since 	the
determination 	of 	whether 	the Psychologist-Intern 	in 	this 	case
is 	an employee 	under EERA must be 	based 	on 	the 	record 	before
5Applying 	similar 	tests, 	several other 	states have
rejected 	the NLRB's 	conclusion 	that 	interns 	are 	not 	"employees"
within 	the 	meaning of 	their 	respective 	statutes. 	See, 	e.g.,
House Officer's Association 	v. 	University 	of Nebraska Medical
Center 	(1977) 	198 Neb. 	697, 	225 N.W.2d 	[82 LRRM 2909]; 	Regents
of 	the University of Michigan 	v. 	Michigan Employment Relations
Commission 	(1973) 	389 Mich. 	96, 	204 N.W.2d 218 	[88 LRRM 2909];
City of 	Cambridge, 	Cambridge House Officer's Association 	(1976)
2 M.L.C. 	1450.
66

us, 	the NLRB's 	factual conclusions 	in other 	instances 	are of
minimal persuasive 	value.
Next, 	the District contends 	that 	the 	facts 	of 	this case 	are
indistinguishable 	from 	those of New Haven, 	supra, 	and 	therefore
we 	cannot 	find 	that 	the Psychologist-Intern 	is 	an 	employee
under EERA. 	It 	further 	argues 	that 	since 	the
Psychologist-Intern 	serves 	in 	the 	internship program as 	a
condition of qualifying 	for 	a 	regular School Psychologist, 	her
employment 	is 	secondary 	to her 	educational goals 	and 	she 	should
not 	be 	found 	to be 	an employee 	under 	the Act.
In New Haven, 	supra, 	the District had 	an arrangement with
Stanford University 	to obtain 	teaching 	interns. 	The 	interns
were 	hired 	for 	up to 	a 	full 	year, 	teaching 	two or 	three 	periods
a day 	(out of 	a 	normal 	five 	period 	day) 	and performing 	the
duties 	of 	a 	regular 	teacher. 	The 	interns 	were monitored more
closely 	than 	regular 	teachers, 	had 	no 	continued 	expectation of
employment, 	and 	had 	only 	temporary 	interim credentials. 	While
they did 	not 	achieve 	tenure while 	serving 	as 	interns, 	their
service 	as 	interns 	counted 	toward 	achieving 	tenure. 	They
continued 	to 	attend 	classes 	at 	Stanford 	during 	the 	internship.
Based 	on 	these 	factual 	circumstances, 	the Board 	concluded 	that
the 	interns' 	educational concerns predominated over 	their
employment 	interests.
We 	find 	that 	the 	record 	does 	not 	support 	the 	District's
contentions. 	Unlike 	the 	student/interns 	in New Haven, 	the
77

Psychologist-Intern here works 	a 	full 40-hour 	week, 	is
minimally supervised, 	and attends no classes. 	Indeed, 	she 	is
not 	even 	enrolled 	at 	the University. 	She 	performs 	essentially
the 	same duties 	as other 	School Psychologists, 	attends
Psychologist 	staff meetings, 	and 	is 	introduced 	to parents 	as 	a
School Psychologist, 	with no 	reference 	to her 	intern 	status.
Overall, 	in our view, 	the Psychologist-Intern 	is more like a
regular 	School Psychologist 	than 	the 	interns 	in New Haven were
like 	regular 	teachers. 	The mere 	fact 	that Ms. 	Rogers'
participation 	in 	the 	internship program 	is 	required 	for 	her 	to
qualify as 	a 	regular School Psychologist 	is 	not, 	in 	and of
itself, 	determinative of whether 	her 	employment 	is 	secondary 	to
her 	educational 	concerns. 	It 	is only one 	factor 	to be
considered 	along 	with 	the 	rest 	of 	the 	record. 	Weighing 	all 	the
evidence, 	we 	find 	that Ms. 	Rogers' 	educational concerns 	are
secondary 	to her 	employment 	interests.
The 	hearing 	officer, 	having 	determined 	that 	the
Psychologist-Intern 	was 	an 	employee 	within 	the 	meaning 	of 	the
Act, 	placed 	that 	position 	in 	the 	certificated 	unit without
separately 	applying 	the 	community 	of 	interest 	standard 	set
forth 	in 	subsection 	3545(a).6 Apparently, 	the 	hearing
officer 	concluded 	that 	the 	analysis 	required 	to 	determine
6Subsection 	3545 (a) 	provides:
In 	each 	case 	where 	the 	appropriateness 	of
the 	unit 	is 	an 	issue, 	the 	board shall decide
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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.
whether 	the Psychologist-Intern was 	an 	"employee" 	within 	the
meaning 	of 	the Act was 	sufficient 	to 	satisfy 	the 	community of
interest 	criteria of 	subsection 3545(a). 	At no time has 	the
District 	argued 	that, 	if 	the Psychologist-Intern were 	found 	to
be 	an employee, 	it would 	not be 	appropriate 	to place 	her 	in 	the
certificated 	unit 	or 	that 	she 	would 	be more 	appropriately
placed 	in 	another 	unit. 	Therefore, 	while we can 	foresee
circumstances 	where 	the 	analysis 	of 	employee 	status would 	not,
in 	and of 	itself, 	be 	sufficient 	to 	satisfy 	the distinct
community of 	interest 	standard, 	the 	factual 	record 	in 	this case
amply 	supports 	the 	hearing 	officer's 	conclusion 	that 	the
Psychologist-Intern 	indeed 	is 	appropriately 	placed 	in 	the
certificated 	unit.
ORDER
Based 	upon 	the 	foregoing 	and 	the 	entire 	record 	in 	this
case, 	the Public Employment Relations Board ORDERS 	that:
1. 	The 	petition 	to 	add Preformal/Permit Teachers,
Counselor-Assistants, 	and Psychologist-Interns 	to 	the
certificated 	unit 	is 	GRANTED.
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2. 	The Program Specialist/Infant-Toddler 	is 	a 	supervisory
employee 	and 	is, 	therefore, 	EXCLUDED 	from the unit.
Member Burt 	joined 	in 	this 	Decision.
Member Morgenstern's 	Concurrence 	and Dissent begins 	on page 	11,
•
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MORGENSTERN, 	Member, 	concurring 	in part and dissenting 	in
part: 	While 	I 	am in agreement with 	the majority's opinion
regarding 	the Psychologist-Intern, 	I 	am unable to join 	in their
summary affirmance of 	the hearing officer's 	conclusion 	as 	to
the Counselor-Assistant 	to the principal. 	My dispute with 	the
majority 	rests 	primarily on 	the 	undisputed 	fact 	that 	the 	two
individuals 	who 	occupy 	the Counselor-Assistant 	position
substitute 	for 	the 	absent 	principal 	at 	least 50 	and as much as
70 	percent of the time.
In 	contrast 	to 	those 	situations 	where 	an 	employee's
substitution 	for 	his/her 	superior 	is 	sporadic 	and 	irregular
(NLRB v. 	Stewart Oil Co. 	(5th Cir. 	1953) 	207 F.2d 8 	[32 LRRM
2651]; 	Nevada County Publishing Co. 	(1980) 	251 NLRB 1030 	[105
LRRM 1359]; 	Canonsburg General Hospital Association 	(1979) 	244
NLRB 899 	[102 	LRRM 1143]; 	The Boston Store 	(1975) 	221 NLRB 1126
[91 LRRM 1076]; 	Complete Auto Transit, 	Inc. 	(1974) 	214 NLRB 425
[87 LRRM 1352]), 	the National Labor 	Relations Board 	(NLRB) 	and
the courts 	have 	found 	indicia of 	supervisory 	status 	when 	the
employee's 	job 	includes 	substitution 	for 	the 	recurring 	and
substantial absences of superiors. 	NLRB v. 	Scoler's, 	Inc. 	(2nd
Cir. 	1972) 	466 F.2d 1289 	[81 LRRM 2299]; 	Best Products Co.,
Inc. 	(1981) 	259 NLRB 95 	[108 LRRM 1285]; 	Ajax Tool Works, 	Inc.
(1981) 	257 NLRB 825 	[108 LRRM 1013]; 	Bucyrus Foodland North &
South 	(1980) 	247 NLRB 284 	[103 LRRM 1219]; 	Kut Rate Kid & 	Shop
Kwik 	(1979) 	246 NLRB 106 	[102 LRRM 1633]; 	Osco Drug, 	Inc.
11

(1978) 	237 NLRB 231 	[99 LRRM 1150]. 	This same distinction has
been 	utilized 	in 	other 	public 	sector 	jurisdictions 	specifically
as 	to assistant principals. 	Ridgewood 	Board 	of Education 	(N.J.
1979) 	5 NJPER para. 	10183; 	Garrison Union Free School District
(N.Y. 	1979) 	12 PERB para. 	3050. 	Borrowing from the rationale
expressed by the NLRB in Ajax, 	supra, 	failure to recognize 	the
supervisory 	status 	of these 	two employees means 	that all
bargaining 	unit 	employees 	at 	the 	two continuation 	high 	schools
are without 	supervision 	of 	any 	kind during 	the 	substantial 	and
repeated periods when 	the 	principal 	is 	absent.
12

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MODESTO 	CITY 	SCHOOLS,
Employer,
and
MODESTO TEACHERS ASSOCIATION, CTA/NEA
Exclusive 	Representative.
Representation
Case No. 	S-UM-159
S-UM-160
S-UM-161
Proposed 	Decision
(4/26/83)
)
)
)
)
)
)
, 	)
)
)
Appearances; 	Kenneth W. Burt 	II, Attorney 	and 	Executive
Director 	for 	Modesto Teachers Association, CTA/NEA;
Louis T. 	Lozano, Attorney 	(Breon, 	Galgani, Godino and
O'Donnell) 	for 	Modesto City Schools.
Before Terrell J. 	Lindsey, 	Hearing Officer.
PROCEDURAL 	HISTORY
The Modesto Teachers Association, 	CTA/NEA 	(MTA) 	is 	the
exclusive 	representative 	for 	a 	comprehensive 	unit1 of
certificated 	employees 	in 	the 	Modesto City 	and 	High 	School
District (District).
In 	three 	unit 	modification 	petitions 	consolidated 	for
hearing 	in 	this 	case, 	MTA has moved 	to add 	to 	the 	certificated
unit 	three classifications of employees: 	(1) 	preformal or
permit 	teachers, 	(2) 	the 	counselor-assistant to the principal
1The 	District 	has 	an 	enrollment 	of 	approximately 	19,000
to 	20,000 	students. 	The 	existing 	certificated 	unit 	contains
around 	950 	employees. 	This 	comprehensive 	certificated 	unit
encompasses 	a 	large 	grouping 	of 	certificated 	classifications,
For 	an 	exhaustive 	listing 	of 	these 	classifications 	refer 	to
PERB 	case 	file 	S-R-365.
- 	- - -
Q

at 	the 	continuation 	high 	schools, 	(3) 	the 	psychologist-intern.
The 	District 	opposes 	the 	petitions, 	arguing 	that:
(1) 	preformal/permit 	teachers 	have 	no 	community 	of 	interest
with 	certificated 	employees 	or, 	in 	the 	alternative 	that 	a
separate 	unit 	of 	preformal 	teachers 	would 	be 	appropriate;
(2) 	that 	the 	counselor-assistant 	to 	the 	principal 	is 	either 	a
management 	or 	supervisory 	classification2 (3) 	the
psychologist-intern 	does 	not 	share 	a 	community 	of 	interest 	with
other 	certificated 	employees.
ISSUES
A. 	Should 	permit 	or 	preformal 	teachers 	be 	placed 	in 	the
certificated 	unit?
B. 	Are 	child 	care 	center 	head 	teachers 	and 	the
counselor-assistant 	to 	the 	principal 	at 	the 	continuation 	high
schools 	management 	or 	supervisory 	employees?
C. 	Should 	the 	psychologist-intern 	be 	placed 	in 	the
certificated 	unit?
2The 	District 	did 	not 	raise 	the 	supervisory 	issue 	in 	its
response 	to 	the 	addition 	of 	these 	classifications. 	However,
the 	District 	did 	present 	evidence 	on 	the 	record 	and 	raised 	in
its 	post-hearing 	arguments 	supervisory 	issues. 	Accordingly,
the 	issue 	will 	be 	addressed 	in 	this 	case.
It 	is 	clear 	from 	the 	record 	that, 	absent 	supervisory 	or
managerial 	status, 	these 	classifications 	do 	have 	a 	community 	of
interest 	with 	other 	certificated 	employees. 	No 	party 	argued
that 	the 	counselor-assistant 	to 	the 	principal 	lacks 	a 	community
of 	interest 	with 	other 	certificated 	employees, 	absent 	a 	finding
that 	the 	position 	is 	managerial or 	supervisory. 	Similarly, 	no
party 	argued 	that 	child 	care 	center 	head 	teachers 	lacked 	a
community 	of 	interest 	with 	other 	preformal 	teachers, 	absent 	a
finding 	of 	managerial 	or 	supervisory 	status.
N2

DISCUSSION
PERB 	regulation 	32781(a)(1) 	allows 	a 	recognized 	or
certified 	employee 	organization 	to 	file 	with 	the 	regional
office 	a 	unit 	modification 	petition:
(1) 	To add 	to 	the 	unit 	unrepresented
classifications 	or 	positions 	which 	existed
prior 	to 	the 	recognition 	or 	certification 	of
the exclusive 	representative of 	the 	unit.
Government 	Code 	section 	3545(a) 	and 	(b),3 in pertinent
part, 	sets 	forth 	the general criteria 	for 	determining
appropriate 	units:
(a) 	In each 	case where 	the 	appropriateness
of 	the 	unit 	is 	an 	issue, 	the board shall
decide 	the 	question on 	the 	basis 	of 	the
community of 	interest 	between 	and 	among 	the
employees 	and 	their 	established 	practices
including, 	among other 	things, 	the extent to
which 	such 	employees 	belong 	to 	the 	same
employee organization, 	and 	the effect of 	the
size of 	the 	unit 	on 	the 	efficient operation
of 	the 	school district.
(b) 	In all cases:
(1) 	A negotiating 	unit 	that 	includes
classroom 	teachers 	shall 	not 	be
appropriate 	unless 	it 	at 	least 	includes
all 	of 	the 	classroom 	teacher	
. . .	
s 	employed
by 	the public 	school employer, 	except
management employees, 	supervisory
employees, 	and confidential employees.
I. 	PERMIT TEACHERS
A. 	Community 	of 	Interest
The 	Board 	has 	held 	that 	section 	3545 	establishes 	a
3A11 	section 	references will 	be 	to 	the 	Government 	Cod
unless 	otherwise 	noted. e
W	
3

rebuttable presumption 	that 	all 	classroom 	teachers 	should 	be
placed 	in 	a 	single 	unit 	unless 	community of 	interest 	factors
dictate 	otherwise.
In 	Peralta 	Community College 	District 	(11/17/78) 	PERB
Decision No. 	77 	the Board 	interpreted 	section 	3545 as 	follows:
Reading 	subsection 	3545(b) 	together 	with 	its
companion subsection 	(a) 	gives 	rise 	to 	the
presumption 	that 	all 	teachers 	are 	to 	be
placed 	in a 	single 	unit 	save 	where 	the
criteria of 	[subsection 	(a)] 	cannot be met.
In this way, 	the 	legislative preference, 	as
the Board 	perceives 	it, 	for 	the 	largest
possible 	viable 	unit of 	teachers 	can 	be
satisfied. 	Thus, 	we would place 	the 	burden
of proving 	the 	inappropriateness 	of 	a
comprehensive 	teachers' 	unit 	on 	those
opposing 	it.
Consistent with 	the 	Peralta presumption, 	the Board 	has
included 	some 	permit 	teachers 	in 	comprehensive 	units with
regular 	teachers. 	In Gilroy 	Unified 	School District 	(7/20/79)
PERB Decision No. 	98, 	the Board 	included permit 	teachers 	in 	a
comprehensive 	unit 	of 	teachers, 	holding 	that permit 	teachers'
interests 	were 	not 	so dissimilar 	from 	those of 	other 	teachers
so 	as 	to preclude 	joining 	them 	in 	the 	same 	unit, 	and 	that
efficiency of 	operations 	criteria 	(discussed 	below) 	further
mandated 	creation 	of 	a 	single 	consolidated 	unit.4
4The	The 	employer 	relies, 	inter 	alia, 	on 	two other PERB
decisions 	in 	arguing 	that permit 	teachers 	do not 	share 	a
community 	of 	interest 	with 	the 	regular 	certificated 	staff.
Oakland 	Unified School District 	(3/28/77) 	EERB Decision No. 	15;
Redondo 	Beach 	City Unified 	School 	District 	(1/17/80) 	PERB
Decision No. 	114. 	(PERB previously was called 	the Educational
A
4
4

Employment Relations Board, 	or EERB.) 	These cases, 	however,
are not controlling. 	First, 	while Board determined, 	in
Oakland 	USD, 	that 	the 	separate 	unit 	of children's 	center
teachers 	is 	an 	"appropriate" 	unit, 	it 	relied 	in substantial
part 	on 	the 	theory 	that 	children's 	center 	teachers 	were 	not
"classroom 	teachers" 	under 	the 	EERA. 	This 	theory was
specifically overruled 	in Peralta, 	supra, 	which 	characterized
the Board's previous 	definition of 	"classroom 	teacher" 	as
"parochial." 	Peralta USD, 	supra, 	at p. 	9. 	Second, 	as
discussed 	infra, 	the Board's decision 	in Redondo Beach, 	supra,
rested 	on 	elements 	that 	are 	distinguishable 	from 	the 	instant
case. 	Third, 	in Redondo 	the exclusive 	representative of 	the
unit 	from which 	permit 	teachers 	were 	severed 	did 	not 	oppose 	a
separate 	permit 	teacher 	unit.
Clearly 	the 	Board 	since 	Peralta 	has 	expressed 	a 	preference
for 	certificated 	units 	which 	contain 	all 	of a 	school district's
certificated 	employees 	absent 	community 	of 	interest 	factors
which dictate 	otherwise. 	Part-time 	teachers 	share 	units 	with
regular 	teachers. 	Hartnell Community College 	District
(11/2/79) 	PERB Decision No. 	81. 	In Dixie Unified School
District 	(8/11/81) 	PERB Decision No. 	171, 	the Board placed
substitute 	and 	regular 	teachers 	in 	the 	same unit. 	Driver
education 	teachers 	were 	included 	in 	an overall 	certificated
unit 	by 	the 	Board 	in El Monte 	Union High 	School District
(10/20/80) 	PERB Decision No. 	142. 	Summer 	school and 	adult
education 	teachers 	have 	also 	been 	united 	with 	other
certificated 	staff 	by 	the 	Board 	in 	Redwood 	City 	Unified 	School
District 	(10/23/79) 	PERB Decision No. 	107 	and 	Glendale
Community College District 	(1/30/79) 	PERB Decision No. 	88
respectively. 	In 	the 	aforementioned 	cases 	those 	employees 	were
certificated, 	prepared 	lesson plans, 	shared work 	locations, 	and
55

many 	worked 	similar 	hours. 	Not 	all 	shared 	the 	same 	salary
schedules, 	fringe 	benefits 	or 	evaluation procedures with other
teachers 	in all cases. 	However, 	the Board 	resolved 	these 	unit
disputes 	despite 	those 	differences 	among 	certificated 	employees,
In all of 	these 	cases, 	teachers who were 	not year 	round,
regular 	teachers 	were 	included 	in 	overall 	certificated 	units
with 	regular 	teachers, 	principally 	because 	they 	all 	shared 	the
same 	job 	function 	and 	many 	common 	characteristics 	- 	including
teacher 	certificates, 	an obligation 	to prepare 	lesson plans,
shared work 	locations, 	and 	similar 	hours. 	The 	fact 	that 	not
all 	teachers 	in 	a given district 	shared 	the 	same 	salary
schedules, 	fringe 	benefits 	or 	evaluation procedure 	with 	other
teachers did 	not 	affect 	the Board's 	determination 	to 	include
them 	in 	light 	of 	the mandates 	of EERA section 	3545(a).
In 	the 	instant 	case 	the District employs 	34 	teachers 	in 	its
preformal programs. 	These 	programs 	provide 	child 	development
services5 	to pre-kindergarten 	children 	to 	prepare 	them 	for
matriculation 	through 	the 	formal 	educational programs 	of 	the
District. 	The 	District's preformal programs 	are 	Head 	Start,
preschool, 	child 	care, 	school 	age parenting/infant 	development
and 	pregnant minors 	program. 	All 	of 	these 	programs 	are 	located
at 	various 	District 	elementary 	schools 	except 	for 	the 	school
age 	parenting/infant 	development 	and 	pregnant 	minors 	program
5Education 	Code 	section 	8201 et 	seq.
66

which 	is 	located 	at 	Downey High 	School. 	All 	these programs 	are
funded 	from a variety of 	federal, 	state 	and 	local 	funding
sources.
Under 	Education 	Code 	section 	8360 	the 	teachers 	in 	these
programs 	are 	required 	to 	hold 	teaching 	permits 	issued 	by 	the
Commission 	for 	Teacher 	Preparation 	and 	Licensing. 	Education
Code 	section 	83666 	specifies 	that 	permit 	teachers 	are
certificated 	employees.
Like 	the 	teachers 	in 	the 	unit, 	all preformal 	teachers work
in 	a classroom 	setting. 	Preformal 	teachers 	are 	required 	to
work 	the 	same 	number 	of hours 	(approximately 6 	to 7 	hours) 	and
days 	(180) 	as 	teachers 	in grades 	kindergarten 	through 	sixth
(K-6). 	All K-6 	teachers are within the existing unit.
Preformal 	teachers, 	like K-6 	teachers, 	prepare 	lesson plans
as 	a part 	of 	their 	instructional duties. 	They also
periodically 	assess 	the 	progress 	of 	each 	child 	against program
standards 	to 	achieve 	specific goals. 	Like K-6 	teachers,
preformal 	teachers 	hold 	parent-teacher 	conferences 	as 	a 	part of
their 	required 	duties.
6Section 	8366 	states 	in pertinent part:
Each 	person employed 	by a public 	or private
agency 	as 	defined 	in 	section 8213 	in 	a
position 	requiring 	a 	child 	development
permit 	for 	the 	supervision 	and 	instruction
of children 	. 	. 	. 	or 	in the supervision of
the 	child development program, 	shall 	be
deemed 	to be employed 	in a position
requiring 	certification 	qualifications.
77

The 	school principal 	evaluates preformal 	as 	well 	as 	K-6
teachers, 	He/she 	uses 	the 	same 	evaluation procedure 	for 	both.
Like K-6, 	the principal visits preformal programs 	and 	is
responsible 	for 	the 	program's 	efforts.
Head 	Start 	and 	preschool program classroom 	activities 	are
similar 	to 	those 	done 	in 	kindergarten. 	Education Code 	section
37042, 	for 	instance, 	authorizes school employers 	to combine
preschool 	and 	kindergarten 	classes. 	Preschool 	and 	Head 	Start
teachers 	have 	substituted 	for 	kindergarten 	teachers 	in 	the
District.
Children 	in 	the 	preformal programs 	use 	the 	same playground,
materials, 	and 	restrooms 	as 	the other 	children at 	the 	school.
All 	teachers 	at 	the 	school are 	encouraged 	to have 	their
children 	interact 	with 	other 	children 	at 	the 	school 	site
regardless 	of grade 	level.
Children 	in 	the 	preschool 	and 	Head 	Start 	programs 	and
kindergarten 	are 	at 	times 	interchanged. 	For 	instance, 	a child
whose 	abilities 	are 	advanced 	beyond 	the 	preformal 	context may
be placed 	in 	a 	kindergarten class 	temporarily. 	On occasion
kindergarten 	children 	are 	put 	in 	a preformal class 	for 	the
opposite 	reason.
Handicapped 	children 	and 	those 	with 	other 	unique
educational 	needs 	are part of 	the 	student population 	in 	the
preformal programs. 	The 	District 	assigns 	special education
teachers 	to work 	with preformal 	teachers. 	Using 	a 	team
8
8

teaching 	approach, 	they provide 	instruction 	to a 	child
utilizing 	their 	different 	abilities 	to 	achieve 	a 	developmental
goal 	for 	the 	student. 	Special 	education 	teachers 	are part of
the 	existing 	unit.
Preformal 	teachers 	are 	considered 	to 	be part 	of 	the
certificated 	staff 	at 	the 	schools 	where 	they work. 	They 	attend
faculty meetings, 	participate 	in open house 	and 	are 	involved 	in
various 	social 	activities 	sponsored 	by 	the 	school 	for 	all
certificated 	staff. 	Preformal 	teachers 	have mailboxes 	like 	the
other 	teachers 	and 	use 	the 	same 	faculty 	rooms 	and 	other
conveniences 	provided 	for 	teachers.
Teacher 	aides 	are provided 	to preformal 	teachers 	to 	assist
in 	the 	classroom. 	The 	preformal 	teacher 	evaluates her 	aide 	in
concert 	with 	the 	school principal. 	K-6 	teachers 	also 	have
aides 	and 	use 	the 	same 	evaluation 	procedure 	as 	do preformal
teachers.
In 	Gilroy 	the 	Board 	acknowledged 	differing 	community 	of
interest 	factors 	between 	permit 	teachers 	and 	other 	classroom
teachers, 	but 	included 	these 	employees 	in 	the 	same unit. 	In
the 	instant case no less a commonality exists. 	Here, 	as 	in
Gilroy, 	permit 	teachers 	interact with 	other 	teachers who 	are 	in
the 	unit, 	attend 	faculty meetings 	and provide 	instruction
similar 	to 	that offered 	by elementary 	teachers. 	But here, 	the
case 	for 	a 	community of 	interest 	is 	even 	stronger 	than Gilroy,
for 	permit 	teachers 	and 	elementary 	teachers 	in 	this 	case 	have
99

common 	supervision, 	similar 	work 	hours 	and 	school year,
facilities 	and 	all 	assisted 	in 	the 	classroom of 	teacher
aides.7
There 	are, 	of course, 	differences between preformal and
regular 	teachers. 	Under 	the Education Code, 	K-12 	teachers 	have
more 	protection 	in 	layoff 	proceedings 	than 	preformal 	teachers.
Preformal 	teachers 	are 	paid 	from a different 	salary 	schedule
than 	other 	certificated 	employees. 	Preformal programs 	are
funded 	in 	an 	entirely different 	way 	than other 	programs 	in
which 	certificated 	employees 	work. 	The 	funding 	for 	the 	program
is a 	combination of 	federal, 	state 	and parent 	fee monies used
solely 	to 	run preformal programs. 	Enrollment 	in 	these 	various
preformal programs 	is 	contingent 	on 	the 	child's 	parent 	not
exceeding 	certain 	income 	levels. 	No 	such 	restrictions 	exist 	in
the 	K-12 	program.
These differences, 	however, 	are not persuasive. 	The
existing 	certificated 	unit 	is 	composed of 	classifications 	with
various 	terms 	and 	conditions 	of employment. 	Employees 	in 	the
existing 	certificated 	unit 	have 	different 	student 	staff 	ratios,
7The 	facts 	in 	the 	instant 	case 	are 	thus clearly
distinguishable 	from those 	in Redondo Beach, 	supra. 	In
Redondo, 	permit 	teachers 	performed 	different work 	functions
than 	regular 	teachers, 	worked different hours, 	and otherwise
had 	"little contact" with 	regular 	teachers, 	"even on an
informal basis." 	(Redondo, 	supra
- , 	at pp. 	6-8.) 	In the 	instant
case, 	as 	noted 	above, 	the work 	functions 	and hours of permit
teachers 	are 	similar 	to 	those of 	regular 	teachers, 	there 	is
considerable 	contact 	between 	the 	two groups, 	and 	there 	are
other 	substantial 	similarities 	between 	them.
10

salary schedules, 	qualifications, 	funding 	sources, 	work 	sites
and 	duty 	assignments. 	The 	preformal 	teachers 	seem 	to 	share
most of 	the 	similarities 	found 	among 	the 	employees 	in 	the
certificated 	unit 	and 	the 	differences 	as well.
Also 	in 	support of 	its 	argument 	against placing 	preformal
teachers 	in 	the 	unit, 	the District 	says preformal programs 	are
not part of 	the 	regular 	District 	educational program. 	The
District 	cites 	the 	California 	State 	Constitution 	at Article 	IX
sections 	5 	and 	6 	and 	a celebrated 	court 	case8 to 	reinforce
this point.
It 	is 	true 	that 	the 	District 	is 	not 	legally 	required 	to
offer preformal programs. 	However, 	the 	unit 	status of a
programs' employees 	does 	not 	turn on 	such 	distinctions. 	The
programs purpose 	is 	a 	factor 	in 	unit 	determination matters,
though 	not 	controlling. 	It 	is 	a guide 	toward 	establishing 	the
work of 	the 	employee 	which 	actually 	determines 	unit questions.
A weighing 	and 	balancing 	of 	the 	facts 	in 	this 	case 	supports
the view 	that preformal 	teachers 	share 	a 	community of 	interest
with 	other 	certificated 	employees.
B. 	Established 	Practices
In 	Livermore 	Valley 	Joint 	Unified 	School District 	(6/22/81)
PERB 	Decision No. 	165 	the Board 	held 	that 	the 	efficiency of
operations 	criterion 	argues 	against 	the 	proliferation 	of
8Serrano v. Priest, 	18 C.3rd 728, 755-756; 	Cal.Rptr. 	345 •
11

units. 	An excessive 	number 	of 	units places 	an 	inordinate
strain 	on 	the 	resources 	of a 	district which 	must 	bargain with
each unit. 	In Gilroy, 	supra, 	the Board determined 	that a unit
of 	6 	employees 	in 	a district with 	units 	of 	262 	classified 	and
314 	certificated 	employees 	"would 	unduly 	fragment 	units 	and
impair 	the 	efficiency 	of 	the 	District's 	operations."
As 	earlier 	stated, 	the District 	herein would 	support 	a
separate 	unit 	for 	its 	34 	preformal 	teachers. 	Presently 	the
District 	has 	the 	responsibility 	to bargain with 	two 	units
covering 	860 	classified 	and 	950 	certificated 	employees. 	In
light of Board precedent, 	a 	third 	unit of 	only 	34 	employees
might well 	impair 	this 	District's operations. 	In any event,
the 	District's 	argument 	that 	a 	consolidated 	unit 	including 	the
34 	permit 	teachers 	would 	hinder 	the 	efficiency 	of 	its
operations 	is 	unsupported by 	the 	record.
C. 	Conclusion
In 	this 	case 	the 	District's 	efforts 	to overcome 	the 	Peralta
presumption do 	not 	succeed. 	Placing 	preformal 	teachers 	in 	the
existing 	certificated 	unit 	is 	appropriate 	given 	the 	community
of 	interest 	and efficiency of operation mandate. 	Therefore,
the 	petition 	to 	add 	preformal 	teachers 	to 	the 	unit 	is 	granted.
II. 	Child 	Care 	Center 	Head 	Teachers 	and 	Program Specialist,
Infant-Toddler
The 	District 	argues 	that 	three 	child 	care 	center 	head
teachers 	and 	one program 	specialist, 	infant-toddler 	employed 	in
12

the 	District's 	child 	care 	centers 	are 	either managers 	or
supervisors.
Section 	3541.l(g) 	defines 	a management 	employee 	as
" . . . 	any 	employee 	in 	a position 	having 	significant
responsibilities 	for 	formulating 	district 	policies 	or
administering district programs." 	When 	interpreting 	this
statutory 	instruction 	the 	Board 	created 	a 	test 	that 	an 	employee
must 	have 	"significant 	responsibilities 	for 	formulating 	and
administering" District policies and programs. 	. 	. 	. 	(Emphasis
added.) 	Lompoc Unified 	School District 	(3/17/77) 	EERB Decision
No. 	13, 	Hartnell Community College District 	(1/2/79) 	EERB
Decision No. 	81, 	Oakland Unified School District 	(11/25/81)
PERB No. 	182.
Section 	3540.l(m) 	of 	the Act defines 	a supervisory employee
as:
. 	. 	. 	any employee, 	regardless of job
description, 	having 	authority 	in 	the
interest of the 	employer 	to hire, 	transfer,
suspend, lay off, 	recall, promote,
discharge, 	assign, 	reward, or discipline
other employees, 	or 	the 	responsibility 	to
assign work 	to and direct 	them, 	or 	to adjust
their grievances, 	or effectively 	recommend
such action, 	if, 	in connection with the
foregoing 	functions, 	the exercise of 	such
authority 	is 	not of a merely 	routine 	or
clerical nature, 	but 	requires 	the use of
independent 	judgment.
In Sweetwater 	Unified School District 	(11/13/76) 	EERB
Decision No. 	4, 	the Board 	interpreted 	section 	3540.l(n) 	to be
written 	in 	the disjunctive. 	Therefore, 	to be a supervisor 	an
13

employee 	need 	only perform, 	or 	effectively 	recommend 	one of 	the
enumerated 	actions.
While 	the 	authority 	to 	"assign" 	work may 	be 	an 	indicator 	of
supervisory 	status, 	a 	sporadic 	assignment of 	work 	which 	amounts
to 	nothing 	more 	than 	the 	"routine 	application 	of 	established
policy or practice" 	does 	not 	require 	the use of 	independent
judgment, 	and therefore 	is 	insufficient, 	standing alone, 	to
support 	a 	finding of 	supervisory 	status. 	Cantua Elementary
School District 	(3/18/83) 	PERB Decision No. 	295.
A, 	Head 	Teacher
1. 	Managerial 	Issue
Child 	care 	center 	head 	teachers 	have 	an 	administrative
role, 	and do 	not 	have 	as much 	contact with 	students 	as do 	child
care 	center 	teachers. 	Head 	teacher 	administrative 	duties
include 	determining 	the 	eligibility of 	families 	and 	children
for 	the 	program, 	assisting 	the 	coordinator 	of preformal
programs 	in 	developing program plans 	and goals, 	maintaining
program 	records 	and 	implementing 	policies 	received 	from 	the
school principal or 	the program coordinator.
Head 	teachers 	follow prearranged 	guidelines 	in 	certifying
entrants. 	Their 	input 	to 	the 	coordinator of preformal programs
is 	shared with 	three 	other 	head 	teachers. 	Above 	head 	teachers
in 	the 	administrative 	hierarchy 	are 	at 	least 	the 	school
principal, 	the 	program coordinator 	and 	the 	director 	of
educational 	services. 	Head 	teachers 	were 	not 	shown 	to 	interact
14

at 	any of 	these 	levels 	where 	true managerial 	responsibility may
arguably 	lie. 	For 	these 	reasons 	it must 	be concluded 	that 	head
teachers 	are 	not managerial employees.
2. 	Supervisory 	Issue
The 	District has 	three 	children's centers, 	each 	has 	a head
teacher. 	The 	head 	teachers 	at 	these 	centers 	are
Suzanne 	Nelson, 	Judith 	Spencer 	and 	Ella Temple. 	One 	children's
center 	has 	three 	teachers, 	one 	has 	two and 	another 	has one
teacher 	on 	the 	staff. 	The centers 	also have aides, 	volunteers,
parents 	and 	students 	in 	their 	operations. 	Because 	the 	teachers
and 	the 	rest of 	the 	staff 	report 	to 	the 	head 	teachers, 	head
teachers 	are 	alleged 	to be 	supervisors.
Head 	teachers 	are 	supervised 	by 	the 	principal of 	the
elementary 	school 	where 	the center 	is 	located. 	They also
report 	to Mrs. 	Rita Roberts, 	supervisor 	of Curriculum Support
Services, 	Preformal and K-6. 	The children's centers, 	and other
preformal programs 	have 	this 	dual 	supervision. 	Mrs. 	Roberts
oversees 	the program areas of 	the centers. 	For 	instance, 	if
either 	the 	nutritional or 	budgetary 	components 	of 	a program are
not 	in compliance with program guidelines, 	Mrs. 	Roberts has 	the
authority 	to correct 	the problem. 	Mrs. 	Roberts 	does not have
daily contact with 	the centers. 	However, 	in non-program areas,
such 	as personnel administration, 	the principal 	is 	ultimately
responsible 	for 	what goes on 	at his/her 	school 	site. 	The
15

principal and Mrs. 	Roberts 	jointly 	supervise 	the 	children's
centers.
Head 	teachers 	oversee 	the 	daily 	operation 	of 	the 	children's
centers. 	However, 	the extent of 	their 	"supervisory"
responsibility 	is dictated, 	in 	substantial part, 	by 	the 	role
that 	the 	school principal has 	at 	the 	school 	site.
The 	record 	does 	not 	show 	that 	the 	children's 	centers
program operation 	require 	constant direction. 	Neither 	are
there opportunities, 	typically, 	for 	a head 	teacher 	to exercise
any 	supervisory 	authority.
One 	area 	that 	head 	teachers 	may 	arguably 	have 	supervisory
authority 	is 	in 	assigning 	and directing 	the 	work 	of 	teachers.
Upon 	entering 	the 	center 	a child 	is 	assessed 	for 	need, 	and
goals 	are 	established 	for 	that 	child's 	development. 	The 	head
teacher 	makes 	that 	assessment 	and 	assigns 	the 	teacher 	who
implements 	the plan. 	However, 	this process 	is well established
almost 	routine 	in 	its existence and, 	therefore, 	provides
little, 	if any, 	discretion to head teachers. 	As a result, 	one
head 	teacher 	spends most 	of her 	time 	in 	a 	kindergarten 	class
while 	another 	works 	mostly as 	a 	children's 	center 	teacher
herself. 	Additionally, 	it 	is 	the principal who receives and
reviews 	the 	lesson plans of 	the 	teachers.
Head 	teachers 	have 	little 	involvement 	in promoting,
rewarding, 	discharging 	or 	otherwise 	affecting 	the 	employment
conditions 	of 	teachers 	through 	the 	evaluation process. 	The
16

school principal 	evaluates 	head 	teachers 	and 	teachers. 	The
principal may 	ask 	a 	head 	teacher's 	opinion 	about 	a 	teacher's
performance 	but 	usually after 	the principal has 	written 	the
evaluation. 	Conversely, 	no 	facts 	are 	present 	in 	the 	record 	to
show 	what 	weight 	a principal gives 	to 	a 	head 	teacher's 	comments
when 	such 	comments 	are 	sought.
The 	school principal usually 	intervenes 	whenever 	a
personnel matter 	occurs. 	For 	instance, 	it 	is 	alleged 	that head
teachers 	reprimand 	teachers. 	Head 	teachers may 	informally
reprimand 	a 	teacher 	but 	quickly defer 	to 	the 	school principal
in 	situations 	which may 	lead 	to 	formal discipline.
Vacation 	schedules 	typically 	are 	worked 	out 	informally
between 	the 	teachers. 	Therefore 	head 	teachers 	are 	faced with 	a
fait 	accompli 	with 	any potential conflict 	and, 	therefore, 	a
decision 	by 	the 	head 	teacher 	is 	eliminated.
Regular 	teachers 	work 	around 	194 	days 	in 	the 	school year.
Head 	teachers 	typically work 	230 	days 	in 	the year. 	They also
are 	paid 	10 	percent 	over 	what 	regular 	teachers 	receive 	which
well may 	be 	compensation 	for 	the 	administrative
responsibilities 	head 	teachers 	have 	in 	addition 	to 	any 	student
contact 	time.
Head 	teachers 	do 	not 	make 	effective 	recommendations 	with
regard 	to hiring 	teachers. 	They 	screen 	applicants 	for
interviewing. 	However, 	a panel with 	the principal, 	head
teacher, 	regular 	teacher, 	parent or aide participates 	in the
17

interview. 	The principal makes 	the 	ultimate 	recommendation
about hiring. 	Further, 	the head 	teachers' 	role 	in hiring 	is no
more 	substantial 	than 	that of 	the 	other 	non-supervisory 	panel
members.
3. 	Conclusion
Head 	teachers 	do 	not 	possess 	supervisory 	authority 	as
prescribed 	by 	section 	3540.l(m) 	of 	the Act. 	Head 	teachers 	have
an 	administrative 	role 	in 	the 	children's 	centers 	and 	generally
less 	student contact 	than do 	teachers. 	Yet, 	relative 	to 	the
role played 	by 	the 	school principal at 	the 	school site, 	head
teachers 	have 	no 	real 	supervisory 	authority 	in 	the 	interest of
the 	public 	school employer.
B. 	Program Specialist, 	Infant-Toddler
1. 	Managerial 	Issue
Ms. 	Phyllis 	York 	is 	employed 	in 	this 	position which 	in 	some
respects 	is 	like 	the 	head 	teacher 	in 	the 	children's centers.
An obvious difference 	is 	that 	the children 	in Ms. 	York's
program are 	from six weeks 	to 	two years old. 	Ms. 	York 	is also
under 	the 	joint 	supervision 	of Ms. 	Roberts 	and 	the 	school
principal as 	are 	head 	teachers.
Her 	involvement 	in 	formulating 	or 	administering 	District
programs 	is 	not 	sufficient 	enough 	to 	establish managerial
status. 	Ms. 	York's responsibilities are outlined 	in
prearranged policies. 	She 	said 	that 	when 	it 	is 	necessary 	to
deviate 	from 	these 	policies 	she 	must 	gain 	approval 	from either
18

Ms. 	Roberts or 	the school principal. 	Like head 	teachers,
Ms. 	York does 	interact with 	her 	superiors. 	The purpose,
though, 	is 	to 	further 	her 	ability 	to 	implement District
policy. 	For 	these 	reasons 	the 	conclusion 	is 	that 	the program
specialist, 	infant-toddler 	is 	not a managerial employee.
2. 	Supervisory 	Issue
The District alleges, 	in the alternative, 	that Ms. 	York 	is
a 	supervisory employee. 	The 	record 	supports 	this 	allegation.
Ms. 	York has 	effectively 	recommended 	the 	hiring 	of 	two 	teachers
in her program: 	she 	initiated 	the 	request 	for 	a 	teacher, 	had
the 	position 	advertised, 	secured 	the 	principal's 	approval of
the 	request, 	and 	screened 	and 	selected 	candidates. 	She 	then
selected 	an 	interview panel 	among 	her 	staff 	and 	interviewed 	the
candidates. 	Ms. 	York made 	recommendations 	to the school
principal, 	which he 	followed.
Ms. 	York 	also 	has 	the 	authority 	to 	assign 	and 	direct 	the
work of 	teachers, 	in 	that 	she meets with 	the 	teachers weekly,
discusses 	what 	activities 	will 	occur 	during 	the 	week,
structures 	the work 	week, 	and gives 	out work 	assignments.
Unlike head 	teachers, 	it 	is Ms. 	York who receives her 	teachers'
lesson plans. 	She 	determines 	at 	the 	outset 	what 	a 	teacher 	will
be doing 	from day 	to 	day. 	She 	will 	also 	vary 	teacher
responsibilities 	during 	the 	school year 	based 	upon
student-staff 	ratios 	and 	the 	abilities 	of 	the 	children 	enrolled
in 	the program.
19

Ms. 	York 	is alleged 	to have 	the 	authority 	to 	reprimand
teachers. 	However, 	the 	record 	is 	devoid of 	facts 	to support
this 	contention. 	During 	her 	tenure 	as 	the program specialist,
infant-toddler, 	no 	teacher 	has 	needed 	to be disciplined 	in any
form.
3. 	Conclusion
On 	the 	basis 	of 	the 	record 	it 	is 	concluded 	that Ms. 	York
does 	exercise 	independent 	judgment 	in 	the 	assignment of work
and 	has 	effectively 	recommended 	the 	hiring 	of 	two 	teachers.
Therefore 	she 	is 	a 	supervisor 	within 	the meaning of 	the Act.
1III. 	Psychologist-Intern
In New Haven 	Unified 	School District 	(3/22/77) 	EERB
Decision No. 	14 	the Board 	considered 	the question whether
"interns" 	should 	be placed 	in 	a unit 	of 	regular 	certificated
personnel.9 The 	interns 	in New Haven worked 	under 	an
internship 	agreement10 which 	enabled 	interns 	to 	have
on-the-job 	training 	and 	experience 	that 	were 	necessary 	to
qualify 	them as 	credentialed 	teachers. 	While 	functioning
"as 	. 	. 	. 	regular 	teacher[s]," New Haven interns were closely
monitored, 	had 	no continued 	expectation of employment, 	and 	had
1
9The 	definition of 	"employee" 	in 	the EERA does 	not
specifically 	indicate 	the 	circumstances 	under 	which 	"students"
may 	be 	considered 	"employees." 	Government 	Code 	section
3540.l(j).
10 The 	internship 	agreement 	was 	in 	accordance 	with
Education 	Code provisions 	authorizing 	school districts 	to 	enter
into 	internship 	agreements 	with 	state 	colleges 	and 	universities,
20

temporary 	interim credentials. 	While 	interns 	did 	not 	achieve
tenure 	while 	serving 	as 	an 	intern, 	their 	service 	as 	interns
counted 	towards 	achieving 	tenure.
Under 	these 	facts, 	the Board 	held:
While 	the 	interns 	have 	duties 	similar 	to
those 	of 	the 	regular 	teachers, 	we 	note 	that
their 	employment 	is merely 	incidental 	to
their 	education. 	The 	Education Code
provisions 	regarding 	the 	supervision of
interns 	highlight 	the 	educational nature 	of
their 	work 	experience. 	Their 	continued
employment 	necessarily 	depends 	upon
satisfactory progress 	toward 	their 	regular
teaching 	credential 	and 	they 	have 	no
expectancy of 	employment 	in 	the 	district
after 	completion of 	the 	credential. 	Because
interns are primarily 	students, 	we 	find 	they
do 	not 	share 	a community of 	interest 	with
the 	regular 	teachers 	and 	therefore 	exclude
them 	from 	the 	stipulated 	unit. 	(New Haven,
supra, 	at p. 	10.)
In the 	instant case, 	unlike New Haven, 	the 	intern,
Mrs. 	Rogers, 	is primarily an employee who shares a community of
interest 	with 	her 	fellow employees. 	Unlike 	the 	interns 	in
New Haven, 	Rogers 	(here 	the 	intern) 	carries a 	full caseload
similar 	to 	that of 	regular 	school psychologists, 	works
full-time, 	receives 	the 	same 	fringe benefits as other
certificated 	employees 	(although 	she 	is 	only paid 	50 	percent of
a psychologist's wage), 	attends psychologist staff meetings,
and 	basically performs 	the 	work 	of 	a 	full-time psychologist 	for
the District. 	Further, 	the 	intern here 	involved 	received a
salary 	increase 	as 	a 	result 	of 	a 	negotiated 	agreement 	affecting
psychologists. 	In addition, 	Mrs. 	Rogers works a 	full day, 	8:00
21

to 5:00, 	195 days per year 	as do 	the 	regular psychologists.
Similarly, 	she 	receives 	fringe 	benefits 	and 	attends
psychologist 	staff meetings. 	Mrs. 	Rogers 	is a member of 	the
Modesto Teachers Association. 	And, 	while 	interns 	have 	no
guarantee of 	continued employment 	(internships, 	by 	their 	terms,
last 	for 	only one 	year) 	the 	District has hired 	former 	interns
as 	regular 	psychologists 	when openings 	were 	available.
It 	is 	true 	that, 	as a condition of her 	internship, 	the
intern 	has 	an 	intern 	supervisor 	with 	whom 	she meets 	monthly.
In 	addition 	she 	has 	two mentors-psychologists 	within 	the 	school
district 	who 	review 	the 	reports 	she 	files 	and 	signs off 	on
them. 	These 	mentors 	also 	evaluate 	the 	intern's work. 	However,
the 	functions performed 	by 	the 	intern 	supervisor 	and 	the
mentors 	do not 	rise 	to 	the 	level of 	supervision given 	the
teacher 	intern 	in New Haven. 	Most of 	the psychologist 	intern's
case 	work 	is 	handled 	independently 	of 	either 	the 	supervisor 	or
the mentors; 	there 	is no showing 	that 	they direct her 	work 	or
require 	her 	to 	get 	their 	approval before 	initiating 	any
activities.
Thus, 	with 	the 	exception 	that 	she 	is paid 	less 	and 	that 	her
reports 	are 	reviewed 	by others 	(not 	an 	uncommon 	experience 	for
a new employee 	either), 	the 	psychology 	intern performs
essentially 	the 	same 	functions 	as 	the 	regular 	psychologist. 	In
light of 	the 	foregoing, 	the 	intern's 	employment 	is 	certainly
22

not 	"secondary" 	to her 	educational concerns, 	and 	she 	shares 	a
clear 	community 	of 	interest 	with 	other 	unit 	employees.
The 	instant 	case 	is 	analogous 	to Physicians National
Housestaff Association v. 	Regents 	(2/14/83) 	PERB Decision
No. 	283-H 	(Housestaff), 	in which 	the Board 	found 	that 	the
housestaff 	of 	the 	University 	of 	California 	medical center 	were
"employees" 	under 	the 	Higher 	Education Employer-Employee
Relations Act 	(HEERA, Government Code 	section 3560 et seq.).
In Housestaff, 	the Board 	found 	that 	the 	amount of 	time hospital
housestaff 	spent 	on 	direct clinical care, 	the 	nature 	of 	their
work, 	the 	lack of direct 	supervision 	and 	the emphasis 	on
providing 	services 	to 	clients 	as 	opposed 	to 	education 	of 	the
housestaff 	required 	a 	conclusion 	that 	the 	housestaff's
educational objectives 	were 	secondary 	to 	their 	job of providing
services.
This 	conclusion, 	the Board 	held, 	was 	amply 	supported 	by
policy 	considerations. 	Inclusion of 	housestaff 	as 	employees
would provide 	them an 	opportunity 	to 	participate 	fully 	in 	the
determination of 	their 	working 	conditions, 	the proper
facilities 	for 	treatment of patients, 	and 	diagnostic 	testing
and 	evaluation. 	This opportunity, 	the Board held, 	provides
housestaff 	with 	a mechanism 	for 	resolving 	disputes 	which 	will
have 	"a 	salutary effect 	on 	the 	nature of 	the 	relationship
between housestaff, 	the hospitals, 	and 	the University." 	(Board
decision, 	at pp. 	16-18.)
23

In 	the 	instant case, 	as 	in Housestaff, 	the educational
objectives 	of 	the 	psychologist 	intern 	are 	secondary 	to her 	job
of providing 	counselling 	services 	for 	the District. 	Further, 	as
with 	UC housestaff, 	the 	purposes 	of 	the Act will 	be 	served 	by
providing 	interns 	with 	a mechanism 	for 	participating 	fully 	in
determinations 	about 	their 	working 	conditions. 	Thus,
Housestaff 	counsels 	in 	favor 	of 	including 	the 	intern 	in 	the
unit 	herein.11
llrt	t 	might 	be 	argued 	that 	Housestaff 	is 	inapplicable 	to
the 	instant dispute because 	the HEERA, 	unlike 	the 	EERA,
specifically 	indicates 	that, 	under 	prescribed 	circumstances,
students 	will be 	considered 	"employees" 	under 	the HEERA. 	HEERA
section 3562(f) 	states:
"Employee" 	. 	. 	. means any employee of the
Regents 	of 	the 	University 	of 	California
. 	. 	. 	The Board may 	find 	student employees
whose employment 	is 	contingent on 	their
status 	as 	students 	are 	employees 	only 	if 	the
services 	they provide 	are 	unrelated 	to 	their
educational objectives, 	or, 	that those
educational objectives 	ar	- e 	subordinate 	to
the 	services 	they 	perform 	and 	that 	coverage
under 	this 	chapter 	would 	further 	the
purposes 	of 	this 	chapter. 	(Emphasis 	added.)
The 	treatment, 	in HEERA, 	of 	"students" does 	not mean that
the 	test 	articulated 	in Housestaff 	is 	simply 	inapplicable 	under
the EERA, 	much 	less 	that 	students 	never 	can be held 	to be
"employees" 	under 	the EERA. 	HEERA specifically 	allows PERB 	to
determine 	that 	students 	are 	also 	employees 	when 	their 	education
is 	subordinate 	to 	their 	employment activities. 	But 	the EERA
does 	not prohibit 	a 	determination 	that 	students 	are 	employees;
rather, 	the power 	to determine 	whether 	students 	are 	employees
is 	implicit 	in 	the power 	granted 	PERB. 	(See EERA section
3543.1.) 	It 	is 	likely 	that 	the HEERA includes 	specific
language 	concerning 	students 	because 	the 	Legislature 	was 	aware
that 	students 	frequently 	were 	employed 	to 	work 	in 	institutions
of higher 	learning: 	student employees 	are 	far 	less 	common 	in
24
1li

Relying 	heavily on NLRB precedent, 	the District 	argues 	that
the 	intern 	should 	not 	be 	included 	in 	the 	unit 	because 	of 	the
educational 	aspect of her 	work. 	The NLRB 	has 	consistently
refused 	to 	confer 	"employee" 	status on 	interns 	whose 	work 	was
closely 	related 	to, 	or 	required 	for, 	their 	course of 	study.
Cedars-Sinai Medical Center 	91 LRRM 1398. 	Housestaff, 	however,
indicates 	that 	significant 	California public 	sector 	labor
relations 	policies 	require 	conferring 	"employee" 	status on
interns 	whose 	employment 	is 	not 	subordinate 	to 	their
educational objectives. 	(See 	discussion 	supra.) 	While
Housestaff, 	by 	its 	terms, 	addressed 	student employees under 	the
HEERA, 	there 	is 	no 	significant 	distinction 	between 	appropriate
labor policies 	in 	the 	higher 	education 	setting 	and 	those
governing 	other 	California public 	schools. 	The 	Housestaff
policies 	thus 	are 	equally 	applicable 	under 	the 	EERA. 	The
District's 	reliance 	on NLRB precedent 	is 	accordingly misplaced.
Conclusion
1
The 	record 	establishes 	that 	the 	intern 	psychologist 	shares
a 	community of 	interest 	with 	regular 	psychologists 	who 	are 	in
the 	certificated 	unit. 	Accordingly, 	the 	petition 	to add 	the
intern psychologist 	to 	the 	unit 	is granted.
elementary and 	high 	schools. 	However, 	the purposes of both
acts 	can be 	best effectuated 	by a 	finding 	that 	students 	are
also 	employees 	in cases 	in which 	the 	educational aspect of
their 	employment 	is clearly 	secondary 	to 	the 	services 	they
provide. 	New Haven 	and 	Housestaff 	both 	articulate 	this
essential 	test.
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IV. 	Counselor-Assistant 	to 	the Principal
The 	District 	contends 	that 	the 	counselor-assistants 	to 	the
principal 	at 	each of 	its 	two 	continuation 	high 	schools 	are
either 	management 	or 	supervisory 	employees. 	The 	MTA maintains
that 	the positions 	are 	neither 	management 	nor 	supervisory 	and
therefore 	should 	be 	included 	within 	the 	certificated 	unit.
1. 	Managerial 	Issue
As 	discussed 	earlier, 	the Board 	has 	interpreted 	section
3541.l(g) 	to mean 	that 	an employee must possess 	significant
responsibilities 	for 	formulating 	and 	administering 	District
policies 	and programs 	to be 	considered management. 	With 	regard
to 	the 	counselor-assistant 	to 	the 	principal 	the 	record 	reveals
no 	facts 	to 	support a contention 	that 	the position 	is
managerial.
Mr. 	William Hampel and 	Mr. 	Jack Henry occupy 	the positions
at 	issue 	at 	Frontier 	and 	Pioneer 	High 	Schools 	respectively.
Mr. 	Eugene Mould 	is principal 	for 	both 	high 	schools.
Mr. 	Hampel and Mr. 	Henry assist Mr. 	Mould 	in the administration
and 	supervision of 	their 	respective 	high 	schools. 	There 	is 	no
evidence 	that 	either 	employee 	is 	involved 	in 	any 	activities
leading 	toward 	establishing 	District policy 	or 	programs 	in
their 	employment 	role. 	Most 	certainly 	no 	evidence 	was offered
to 	show 	that 	either 	gentlemen 	is 	vested 	by 	the 	District with
significant 	responsibility 	to 	formulate 	and 	administer 	polices
and 	programs.
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2. 	Supervisory 	Issue
Neither 	does 	the 	record 	support 	the 	view 	that 	as
counselor-assistants 	to 	the principal, 	both Mr. 	Henry and
Mr. 	Hampel have 	supervisory authority. 	The Board 	has 	decided
that 	an 	employee 	need only 	have 	the 	authority 	to 	exercise 	one
of 	the 	statutorily 	enumerated 	job dutiesl2 	to 	be 	a
supervisor. 	The only areas 	in which Mr. 	Henry 	and Mr. 	Hampel
appear 	to 	exercise 	supervisory 	authority 	are 	in 	assigning 	work
to 	and directing 	teachers 	in 	the performance of 	their 	jobs.
The 	assistant 	principals 	are 	alleged 	to 	perform 	these 	duties 	by
granting 	time 	off 	to 	teachers 	and 	monitoring 	them 	in 	the
classroom or 	doing 	special projects.
It was 	established 	that, 	as principal of 	two high 	schools,
Mr. 	Mould 	is 	absent 	from the 	schools 	at 	least 	half of 	the
normal workday. 	Mr. 	Hampel 	said 	that 	at Frontier 	High 	School
Mr. 	Mould 	is 	absent 	from 60 	to 70 percent of 	the workday.
During Mr. 	Mould's absence Mr. 	Hampel and Mr. 	Henry are
responsible 	for 	what 	goes 	on 	at 	their 	particular 	school.
Despite Mr. 	Mould's prolonged 	absences, 	Mould 	said he can be
reached 	by 	either 	assistant 	principal 	should 	the 	need 	arise.
The 	counselor-assistant 	to 	the principal 	is 	an
administrative 	position. 	The 	classification 	is 	paid 	from 	the
management 	salary 	schedule. 	Assistant principals/counselors
12Section 	3540.l(m) 	et 	seq.
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are paid 	at 	a 	significantly higher 	rate 	than 	teachers. 	Both
incumbents 	must 	possess 	an 	administrative 	services 	credential.
As 	counselors 	they 	work 	with 	students 	on graduation progress,
attitudes, 	citizenship and 	behavior. 	Neither 	has 	any classroom
duty. 	Along 	with 	counseling, 	each 	has 	a host of 	administrative
duties, 	which 	Hampel and Henry consider 	their 	primary 	tasks.
Mr. 	Mould 	testified 	that Mr. 	Hampel and Mr. 	Henry have 	the
authority 	to 	approve 	a 	request 	from a 	teacher 	for 	time off 	in
his absence. 	Mr. 	Mould 	said 	that his 	rule 	is 	if a 	teacher
wants 	one 	hour 	off 	as 	a matter 	of personal necessity 	then
generally 	the 	time off 	is granted. 	Thus 	the 	assistant
principal's 	action of granting 	an 	hour 	off 	is 	routine. 	But
beyond 	one 	hour 	the 	assistant principal may 	decide 	whether 	the
reason 	justifies 	additional time off. 	Mr. 	Henry 	said 	that 	if 	a
teacher 	wanted 	only 	two 	hours 	off 	he 	expects 	justification 	from
the 	teacher 	before 	granting 	the 	absence. 	However, 	personal
necessity 	leave 	generally 	for 	one 	day, 	which 	typically 	involve
medical appointments, 	are 	routinely granted. 	Henry pointed 	out
that 	actually he 	never 	has 	had 	to use 	any discretion 	when
granting 	time off. 	Therefore, 	at best, 	the exercise of such
authority 	is 	a 	sporadic 	occurrence 	and of 	little value 	to
determine 	an 	employee 	supervisory. 	Adelphi University 	(197 2)
195 NLRB 639, 	79 LRRM 1545.
If Mr. 	Henry 	should grant 	the 	time off, 	he might 	select
another 	teacher 	who was off duty, 	bring 	in a 	substitute 	or
28

cover 	himself. 	Covering 	the 	absent 	teacher's 	class 	himself 	or
arranging 	for 	another 	teacher 	to 	cover 	the 	class 	seems 	a
routine 	reaction. 	This 	well may be 	the 	case 	where 	no more 	than
18 	teachers 	are 	available 	and 	therefore 	alternatives 	would
inherently be 	limited. 	However, 	as Mr. 	Mould 	indicated
opportunities 	for 	the 	assistant 	principal 	to 	grant 	time 	off
don't often 	occur. 	Mr. 	Mould also pointed 	out 	that 	when 	a
teacher 	calls 	in absent 	the 	call 	is 	to 	the 	school 	secretary not
the 	assistant principal. 	The 	school 	secretary will 	arrange 	for
a 	substitute 	teacher. 	From all 	the 	facts 	presented 	the
assistant principal's 	role 	in granting 	time off 	seems
perfunctory, 	a matter 	of common 	school practice 	and 	not 	enough
to establish supervisory authority, 	Cantua, 	supra.
Mr. 	Hampel 	said 	that 	he 	spends 	around 	70 percent of his
time 	overseeing 	the 	school's operation. 	He 	said 	that 	it 	is 	his
responsibility 	to 	deal with 	problems 	as he observes 	them. 	He
has, 	for 	instance, 	noticed 	that a 	teacher 	was 	having difficulty
maintaining 	discipline 	in 	the 	classroom. 	Hampel 	said 	that 	he
brought 	the 	teacher 	to his office 	and 	counseled 	the 	teacher
about her 	performance. 	Mr. 	Hampel says 	that 	in his 	judgment 	if
any 	teacher 	is 	not performing 	adequately 	it 	is his 	job 	to keep
the 	principal 	informed. 	The 	record 	does 	not 	support 	the
conclusion 	that 	any of 	Hampel's 	observations 	of 	a 	teacher's
performance 	somehow 	affect 	that 	teacher's 	employment. 	For
instance, 	no 	facts 	were offered 	to 	show how Mould 	used 	the
29

information 	supplied 	by Hampel. 	Whether 	Hampel's 	observations
have 	meaning 	in 	teacher 	evaluations 	are 	not 	in 	themselves
persuasive, 	as discussed 	infra.
An 	incident 	allegedly 	establishing 	Henry's 	authority 	to
assign 	work 	involves 	the principal 	telling 	Henry 	to 	have 	the
teachers 	do 	a 	book 	inventory. 	It 	is 	not 	evident 	from the
record 	how Henry's 	involvement 	was 	required 	to 	insure 	the
inventory 	was 	done 	or 	that 	Henry provided 	any 	direction 	to
teachers doing 	the work. 	Further, 	the principal's use of Henry
to 	assign work 	compels 	the 	view 	that 	only 	the 	principal holds
the 	authority 	to assign work 	since 	it 	was 	the principal who
ordered 	the 	book 	inventory, 	not Henry.
With 	regard 	to 	teacher 	evaluations 	the 	evidence 	does 	not
support 	the 	view 	that 	either 	Hampel or 	Henry 	play 	a meaningful
role 	in 	that process. 	Mr. 	Mould 	indicated 	that he discusses
the 	evaluations with 	both 	but 	it 	is 	not 	clear 	what 	reliance
Mould places on 	these discussions. 	Also, 	the power 	to evaluate
itself 	is 	not 	an 	indication 	of 	supervisory 	authority 	unless
tied 	to 	a 	result 	somehow affecting 	an 	employee's 	employment
condition.
The 	role 	that Mr. 	Henry and Mr. 	Hampel have 	in granting
time off 	to 	teachers 	and 	monitoring 	them 	in 	their 	job
performance 	does 	not 	compel 	the 	view 	that 	either 	assigns 	work
to or directs 	teachers 	in 	the 	interest of 	the 	school employer.
30

One 	needs 	look 	to 	the 	school principal 	to 	find 	true 	supervisory
authority at both 	schools 	in 	this 	case.
3. 	Conclusion
The 	counselor-assistants 	to 	the 	principal at 	the
continuation high 	schools 	are 	not management 	or 	supervisory
employees. 	The 	petition 	to 	add 	this 	classification 	to 	the
certificated 	unit 	is granted.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	and 	the 	entire 	record 	in 	this
case, 	it 	is 	the proposed decision 	that:
1. 	The petition 	to 	add permit/preformal 	teachers 	and 	the
children's 	center 	head 	teachers 	to 	the 	certificated 	unit 	is
granted. 	The program specialist, 	infant-toddler 	is 	a
supervisory employee 	and 	is, 	therefore, 	excluded 	from the 	unit.
2. 	The 	petition 	to 	add 	the 	intern psychologist 	to 	the
certificated 	unit 	is 	granted.
3. 	The 	counselor-assistants 	to 	the 	principal are 	neither
management 	nor 	supervisory. 	The 	petition 	to 	add 	this
classification 	to 	the 	certificated 	unit 	is 	granted.
Pursuant 	to California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed Decision 	and Order 	shall
become 	final on May 16, 	1983, 	unless a party 	files a timely
statement of exceptions. 	In accordance with 	the 	rules, 	the
statement of 	exceptions 	should 	identify 	by 	page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
31

exceptions. 	See California Administrative Code, 	title 8,
part 	III, 	section 	32300. 	Such 	statement of exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the Board 	itself
at 	the 	headquarters 	office 	of 	the 	Public Employment 	Relations
Board 	in Sacramento before 	the close of business 	(5:00 	p.m.) 	on
May 	16, 	198 3, 	in order 	to be timely 	filed. 	When exceptions 	are
sent 	by 	telegraph 	or 	certified 	United 	States mail postmarked
not 	later 	than 	the 	last 	day 	set 	for 	filing, 	said 	document 	shall
also be 	considered 	filed. 	See 	California Administrative 	Code,
title 8, 	part 	III, 	section 32135. 	Any 	statement of exceptions
and 	supporting 	brief 	must be 	served 	concurrently 	with 	its
filing 	upon 	each 	party 	to 	this 	proceeding. 	Proof of 	service
shall be 	filed 	with 	the Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part 	III, 	section 32300 	and 32305.'
Dated: 	April 26, 	1983 Terrell J. Lindsey
Hearing 	Officer
32