Kings County Office of Education (PERB 0801E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KINGS COUNTY OFFICE 	OF 	EDUCATION,
Employer,
and
KINGS 	TEACHERS ASSOCIATION,
CTA/NEA,
Exclusive Representative.
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) 	Case No. 	S-UM-415
(S-R-491)
PERB Decision No. 	801
March 	29, 	1990
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Appearances: 	Lozano, 	Smith, 	Smith & Woliver by Ellen M. 	Jahn,
Attorney, 	for Kings County Office of Education; 	Kings 	Teachers
Association by Ramon E. 	Romero, 	Attorney, 	and Jeffrey M.
Jacobberger, 	Law Clerk, 	for Kings Teachers Association, 	CTA/NEA.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on 	exceptions 	filed by the 	Kings
County Office of Education 	(KCOE) 	to a proposed decision of 	a
PERB 	hearing 	officer 	granting 	a 	unit 	modification petition 	filed
by the Kings Teachers Association 	(KTA). 	The petition, 	filed
pursuant to Regulation 32781(a)(1),1 seeks to add the
1PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	Title 8, 	section 31001, 	et. 	seq. 	At the time the petition
was 	filed, 	PERB Regulation 32781(a)(l) 	provided:
(a) 	A recognized or certified 	employee
organization may 	file with the 	regional
office 	a petition for unit modification:
(1) 	To add to the unit unrepresented
classifications 	or positions 	which existed
prior to 	the 	recognition or 	certification of
the 	current 	exclusive 	representative 	of 	the
unit.
This 	regulation was 	subsequently 	amended, 	effective
February 	1, 	1989. 	The change had no impact on the disposition of
this case.
_____ )

classification of 	"nurse"- to an existing unit, 	already
represented by KTA. 	The 	existing unit 	includes 	speech
therapists, 	special 	education teachers, 	and part-time and 	summer
school 	employees 	in those positions, 	and excludes 	all other
certificated 	employees.
We have reviewed the entire record 	in this 	case, 	including
KCOE's 	exceptions 	to 	the proposed decision 	and 	KTA's 	response
thereto and, 	for the reasons 	set 	forth below, 	affirm the decision
of 	the 	hearing 	officer granting 	the 	unit 	modification.
STATEMENT OF 	FACTS
The 	responsibility of 	KCOE, 	as 	defined 	in 	its 	staff handbook
is to:
. 	. 	. promote and encourage maximum
educational 	opportunities 	for 	county
residents 	and 	to 	assure 	compliance with 	state
and 	federal 	laws 	as 	they apply to 	education
. 	. 	. 	to operate essential educational
programs 	and 	services 	when districts 	lack the
resources 	to 	provide 	them 	. . . .
(p. iii.)
To 	fulfill 	this 	responsibility, 	KCOE 	employs 	a number of people
of diverse occupations 	including, 	but not 	limited to,
psychologists, 	resource specialists, 	curriculum specialists,
program specialists, 	special education teachers, 	speech
therapists 	and nurses. 	These 	employees 	report to various work
sites 	at 	14 	different 	school districts 	in the 	county and/or to
county-operated programs 	and 	schools. 	The employees' 	salaries
are 	funded 	from various 	sources, 	including 	contracts with
outlying 	school districts, 	state and federal 	funds 	for 	special
education and general 	fund monies 	of 	the 	county.
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KCOE's 	personnel policies 	are 	set 	forth 	in a 	staff 	handbook
which 	contains 	personnel 	practices 	for 	all 	certificated
employees. 	The handbook is 	applicable to bargaining unit members
to 	the 	extent 	it 	is 	not 	inconsistent with the 	collective
bargaining 	agreement. 2
KTA was 	certified 	in 	1978 	as 	the 	exclusive 	representative
for 	the 	existing bargaining unit 	of 	speech 	therapists 	and 	special
education teachers, 	and specified 	summer 	school, 	temporary and
part-time teachers 	in those positions. 	The 	current collective
bargaining agreement between KTA and KCOE 	expires 	on June 	30,
1990. 	At the time of the hearing in this matter, 	the bargaining
unit 	consisted of 	approximately 	30 	special 	education teachers 	and
speech therapists. 	The 	special 	education teachers 	are assigned
to 	specific 	classrooms while 	the 	speech 	therapists 	generally
serve 	several districts 	and 	sites, 	moving from 	site to 	site.
At the 	time of the hearing, 	KCOE 	employed three nurses;
Jeanne Russ 	(Russ), 	Irene Mendes 	(Mendes), 	and Sandra Case-
Jorgenson 	(Case). 	Case and Mendes were members 	of KTA's parent
organization, 	California 	Teachers Association and 	signed
authorization 	cards 	that were 	submitted 	to 	PERB 	by 	KTA with 	its
ZKCOE 	excepts 	to 	the hearing officer's 	finding that 	the
handbook 	and 	collective 	bargaining 	agreement 	explain 	the 	policies
and practices 	of 	the 	employer as 	they relate to personnel 	and
labor relations 	matters, 	arguing that the 	evidence 	shows 	that the
collective 	bargaining 	agreement 	pertained 	only 	to 	unit 	members
and the handbook to 	non-unit members. 	We 	find the 	hearing
officer's 	interpretation of 	the 	evidence 	to 	be 	supported by 	the
record.
w	
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unit modification petition as proof 	of 	support. 	Russ 	objects 	to
union membership based 	on personal 	belief.
Each of 	the 	three 	nurses possesses 	bachelor's 	degree 	in
nursing and 	school 	health 	credentials. 	The nurses 	are 	each
required 	to 	take 	continuing 	education 	courses 	to 	maintain their
nursing degrees, 	upon which the 	school health credential 	is
based. 	The bargaining unit members 	have 	comparable 	educational
backgrounds 	and must 	maintain active 	credentials 	in 	their
specialized 	subject 	areas.
The nurses' 	assignments vary. 	Russ 	has worked for KCOE
since 	1976 	and, 	at the time of the hearing, 	was 	assigned to work
in programs 	for the 	severely handicapped and pregnant minors. 	Of
the three nurses, 	Russ has the most contact with unit members.
She 	communicates with unit members 	on a daily basis, 	and attends
staff meetings 	and 	in-service training with them. 	She 	also 	takes
an 	active 	role 	in 	consulting with unit members 	regarding
medication, 	treatment and rehabilitation programs 	for 	individual
students 	in the 	special 	education and pregnant minors 	programs.
Mendes 	and Case 	are 	each assigned 	to 	several 	outlying 	school
districts 	and 	sites 	and, 	consequently, 	have 	less 	interaction with
unit members 	than does 	Russ. 	Their time 	is 	spent providing
nursing care to 	ill 	or injured 	students, 	administering 	state-
mandated screening tests 	(eg. 	vision, 	hearing, 	scoliosis) 	and
making referrals based on the results 	of 	the tests. 	Some of
those referrals 	are to unit members. 	The nurses do 	communicate
with 	special 	education teachers 	and 	speech 	therapists 	in 	the
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ordinary 	course of their work. 	Additionally, 	Mendes 	interacts
weekly with unit 	members 	through her 	assignment 	to 	the 	county-
operated 	infant care program and, 	on occasions, 	when she
substitutes 	for Russ. 	Mendes 	and Case are not required to, 	and
do 	not 	typically, 	attend 	staff meetings with 	special 	education
teachers 	and 	speech therapists.
The nurses basically have the 	same work year 	(183 	days) 	and
specified work hours per day 	(7 	hours) 	as 	the bargaining unit
members. 	They work 	from a 	salary 	schedule which 	specifies 	the
same 	entry-level 	salary 	as 	that 	specified 	on the 	salary 	schedule
for bargaining unit employees. 	The nurses, 	like all 	county
employees, 	are paid on a monthly basis 	by check from the 	county
office. 	Their benefit package 	is 	almost 	identical 	to that
provided bargaining unit members, 	except that unit members 	are
allotted, 	under the collective bargaining agreement, 	an extra
personal 	necessity 	leave day per year. 	Bargaining unit members
may attain tenure; 	nurses do not.
KCOE 	is 	organized into 	six departments. 	Each department 	is
headed by a director. 	The 	nurses 	report 	to and are 	supervised
and 	evaluated by the director of 	student 	services. 	The 	speech
therapists 	report 	to 	and 	are 	supervised 	and 	evaluated 	by 	the
director of 	alternative 	school. 	The 	special 	education teachers
report 	to 	and 	are 	supervised by 	their on-site 	school 	principal,
Barbara Sousa, 	who, 	in turn, 	reports to the director of special
education. 	All 	of 	the directors 	report to the associate
superintendent.
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All 	certificated 	employees 	are 	evaluated pursuant 	to 	the
Stull Act.3 The 	evaluation criteria 	and 	forms 	used to 	evaluate
the nurses 	and bargaining unit members differ, 	in that the 	form
used 	for 	instructional personnel 	places 	emphasis 	on pupil
progress, 	instructional techniques 	and other subjects 	that do not
directly 	relate 	to 	the typical duties 	or objectives 	of 	the
nurses. 	Each year, 	the nurses discuss with their 	supervisors
their objectives, 	which are tailored to their assignments. 	At
the 	end of 	the year, 	the nurses 	review their progress with their
supervisors.
The 	contract 	negotiations 	between KCOE 	and 	KTA 	for 	the
collective 	bargaining agreement 	now 	in effect 	lasted
approximately 20 	hours. 	KTA is 	the only employee organization
with which KCOE has 	an obligation to negotiate.
DISCUSSION
The Educational Employment Relations Act 	(EERA)4 section
3545(a) 	sets 	forth the criteria to be used in determining the
appropriateness 	of units:
. 	. 	. 	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.
Education Code Article 	11, 	sections 	44660 	through 	44665.
4EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code.
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The 	Board has 	applied these 	criteria 	in other 	cases 	where
the 	question arose 	as 	to 	the 	appropriateness 	of 	including pupil
services 	personnel 	in a unit 	of 	certificated 	instructional
personnel. 	(Grossmont Union High School District 	(1977) 	EERB
Decision No. 	11, 	and Los Angeles 	Unified School 	District 	(1976)
EERB Decision No. 	5.)5 In each case, 	the Board found that, 	due
to the similarities in education, 	training, 	salaries, 	fringe
benefits, 	assignments, Stull Act evaluations, 	credentials,
supervision, 	interaction with other certificated employees, 	and
the 	sharing of 	common goals, 	a unit 	including pupil 	services
employees 	together with 	certificated 	instructional 	personnel 	was
warranted.
Community 	of 	Interest
We 	agree with 	the hearing 	officer's 	conclusion 	that 	the
facts 	of 	this 	case do not warrant 	a 	result different 	than that
reached 	in the 	earlier cases 	as 	to 	community of 	interest.
Credential 	requirements 	for nurses 	and bargaining unit members
are more 	similar 	than dissimilar—employees 	in both 	groups 	have
bachelors' 	degrees 	or higher degrees plus 	specialized training.
Although 	some 	differences 	in 	salary 	exist between nurses 	and
bargaining unit members, 	entry-level 	salaries 	are the 	same and
salary ranges 	are 	comparable. 	With the 	exception of 	the benefit
of 	an extra personal 	leave day 	for unit members, 	fringe benefits
for the 	nurses 	are 	identical 	to 	those 	afforded unit members.
5PERB was 	known as 	Educational 	Employment 	Relations 	Board
prior to January 	1, 	1978.
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Like 	the unit members, 	nurses 	are evaluated pursuant 	to the 	Stull
Act. 	Although differences 	in 	format 	and 	evaluation 	criteria
differ, 	such differences 	are 	insignificant according to the
rationale in Grossmont, 	supra. 	EERB Decision No. 	11. 	We find
that distinction 	in the 	lines 	of 	supervision between the 	nurses
and unit members 	not 	so 	significant 	as 	to be a determining 	factor
in 	assessing 	community of 	interest.
KCOE 	excepts 	to 	several 	of 	the hearing officer's
determinations 	regarding 	the 	existence 	of 	a 	community 	of 	interest
between the nurses 	and the bargaining unit members. 	First, 	KCOE
argues 	that 	the hearing officer 	erred 	in 	finding 	that 	the 	nurses
work the 	same number of hours 	as 	the bargaining unit members,
since 	the nurses 	are 	allotted one hour 	for 	lunch and the
bargaining unit 	members 	have 	only 	a 	one-half hour 	lunch period.
Although there 	is 	some conflict 	in the evidence, 	the weight of
the 	evidence 	supports 	the 	factual 	finding of 	the hearing officer.
Furthermore, 	even assuming an error on the part of the hearing
officer 	in this 	regard, 	we do not 	find 	such an error to be
prejudicial.
Second, 	KCOE 	excepts 	to the hearing officer's 	finding of
fact 	that bargaining unit members work at 	all 	sites 	where 	nurses
work, 	noting that two of 	the three nurses 	are assigned to
outlying districts which have no county employees. 	Thus, 	KCOE
reasons, 	at 	least two of the three nurses have no 	interaction
with bargaining unit members. 	Consequently, 	KCOE concludes, 	the
interaction prong 	of 	the 	community-of-interest 	test 	set 	forth 	in
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Grossmont 	is 	not 	satisfied. 	KTA concedes, 	in its 	response to
KCOE's 	exceptions, 	that 	the hearing 	officer erred 	in 	finding 	that
unit members work at all 	sites where the nurses work. 	KTA
-
argues, 	however, 	that the hearing officer's misstatement was
slight as 	unit members work at 	"nearly all" 	of 	the 	sites 	to which
the 	nurses 	are assigned. 	Again, 	we must 	find that the 	error made
by 	the 	hearing officer was 	slight 	and 	nonprejudicial 	to 	the
ultimate decision in this 	case.
While there 	is 	not 	a great deal of 	interaction between two
of the three nurses 	and the unit members 	in this 	case, 	there 	is
some 	interaction between two 	of 	the 	nurses 	and the unit members,
and 	daily 	interaction between the 	third 	nurse 	and unit 	members.
The 	interaction that 	occurs 	between 	the 	nurses 	and unit 	members
cannot 	be 	fairly 	compared with 	that which 	occurs 	between
employees who work together 	in one 	location. 	The 	fact 	that 	two
of 	the nurses' 	assignments 	take them to a number of outlying
areas 	naturally 	limits 	their 	interaction with 	fellow employees.
Notably, 	the 	speech therapists 	are 	similarly 	isolated and do 	not
appear 	to 	have 	any 	greater 	contact with 	fellow unit members 	than
do the nurses. 	Thus, 	we 	find the 	interaction criteria of 	the
community-of-interest prong of 	the 	appropriateness 	of 	unit 	test
satisfied.
Third, 	KCOE 	argues 	that the nurses do not 	share a 	common
goal with unit members and, 	therefore, 	cannot be 	found to 	share a
community of 	interest with them. 	KCOE 	reasons 	that 	the 	fact 	that
speech 	therapists 	and 	special 	education teachers 	provide
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instruction to 	special 	education students, 	while nurses provide
health 	services 	to the general 	student population, 	demonstrates 	a
lack of common purpose. 	Significantly, 	the nurses' 	job
descriptions 	indicate 	that 	they do participate 	in 	special
education programs. 	Russ 	is 	indeed assigned to the 	special
education program. 	Furthermore, 	as noted above, 	PERB has 	already
decided 	that pupil 	services 	employees 	may be 	appropriately placed
in a unit with 	instructional personnel. 	(See Grossmont 	Union
High School District, 	supra. 	EERB Decision No. 	11 and Los Angeles
Unified School District, 	supra, 	EERB Decision No. 	5.) 	In our
view, 	the nurses 	share with the unit members 	the common goal 	of
providing 	services 	to Kings 	County 	school 	districts 	which 	lack
the 	resources 	to provide 	such 	services 	on their own.
Effect of 	Size 	of 	Unit on Efficient Operation of 	District
KCOE 	took the position during 	the 	hearing 	that 	it would
prefer, 	over the proposed unit modification, 	either a 	separate
unit of 	nurses 	or a 	separate unit of pupil 	services personnel. 	A
separate unit would necessitate 	separate 	contracts. 	KCOE 	has
failed 	to 	demonstrate how 	separate 	contracts 	would 	increase 	its
efficiency of operations. 	Furthermore, 	PERB precedent 	supports
the 	combining of pupil 	services personnel 	in a 	single unit with
instructional employees. 	(Id. )
Extent 	to Which 	Employees 	Belong 	to 	Same 	Employee Organization
At 	the time of the hearing, 	two of the three nurses 	belonged
to KTA's 	parent organization, 	the California Teachers
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Association. 	The third nurse, 	Russ, 	objected to union membership
based 	on personal 	belief.
Propriety of 	KCOE's 	Request 	for 	Dismissal 	Based 	on Lack of
Support
In its 	exceptions, 	KCOE argues 	that the unit modification
petition 	should 	now be dismissed 	for 	lack of 	majority 	support,
since 	one 	of 	the two 	nurses who 	supported the petition resigned
her position 	shortly before 	a proposed decision was 	issued 	in
this case. 	This argument is meritless. 	First, 	this argument is
not based upon anything 	in the record 	in this 	case, 	but 	is 	based
upon copies 	of 	a 	letter of 	resignation attached to KCOE's
exceptions. 	PERB Regulation 32300(b) 	provides 	that 	"[r]eference
shall 	be made 	in the 	statement of 	exceptions 	only 	to matters
contained 	in the 	record 	of 	the 	case."
Second, 	even assuming 	KCOE 	could 	overcome 	its 	evidentiary
problem, 	a review of PERB regulations 	reveals 	that the adequacy
of 	the proof 	of 	support 	is 	determined at the time 	the petition is
filed. 	(See PERB Regulations 	32700, 	32781, 	and 32786.) 	Thus,
since 	KTA 	submitted 	a valid proof 	of 	support when 	it 	filed 	the
petition, 	we decline to dismiss 	the petition on the 	grounds 	that
support 	may be 	lacking 	now.
ORDER
Based upon the 	entire 	record 	in this 	case, 	the 	Board hereby
GRANTS 	Kings 	Teachers Association's 	unit 	modification petition,
and ORDERS 	that 	the 	nurse 	classification be 	added 	to 	the 	existing
certificated unit 	represented by 	Kings 	Teachers Association. 	The
Board 	further ORDERS 	that 	this 	case 	be 	REMANDED 	to 	the 	Sacramento
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Regional Director, 	who 	shall 	take appropriate action consistent
with this 	decision.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
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