Peralta Community College District (PERB 0077E)

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STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PERALTA 	COMMUNITY 	COLLEGE 	DISTRICT,
Employer,
and
PERALTA 	FEDERATION OF 	TEACHERS,
AFT 	LOCAL 	1603,
Employee 	Organization,
and
PERALTA 	HIGHER 	EDUCATION 	ASSOCIATION,
CTA/NEA,
Employee 	Organization,
and
PERALTA DISTRICT TEACHERS ASSOCIATION,
Employee 	Organization.
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) 	Case No. 	SF-R-501
PERB Decision No. 	77
November 17, 	1978
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Appearances; 	Lee T. 	Paterson, 	Attorney 	(Paterson & Taggart)
for 	Peralta 	Community College 	District; 	Stewart Weinberg,
Attorney 	(Van Bourg, 	Allen, Weinberg & Roger) 	for Peralta
Federation of Teachers, 	AFT Local 	1603; 	Francis R. 	Giambroni,
Attorney 	(White, 	Giambroni 	& Walters) 	for Peralta Higher
Education Association, 	CTA/NEA; 	Charles I. 	Eisner, Attorney
(Boornazian, 	King 	& 	Schulze) 	for Peralta District Teachers
Association.
Before: 	Gluck, 	Chairperson; 	Cossack Twohey and Gonzales,
Members.
DECISION
This 	case 	comes 	before 	the 	Public 	Employment 	Relations
Board 	(hereafter 	PERB or 	Board) 	on 	exceptions 	to 	the 	hearing
officer's 	proposed 	decision 	filed 	by 	the 	Peralta Federation 	of
Teachers, 	AFT Local 	1603 	(hereafter 	AFT) 	and 	the 	Peralta Higher

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Education Association, 	CTA/NEA 	(hereafter CTA). 	The sole 	issue
in the case 	is whether, 	as 	the hearing officer 	found, 	employees
of 	the 	East 	Bay 	Skills 	Center 	(hereafter 	Skills Center 	or
Center) 	component 	of 	the 	Peralta 	Community College District
(hereafter 	District) 	shall be 	excluded 	from 	the 	unit 	of 	all
certificated employees. 	The District 	supports 	the 	hearing
officer's decision, 	while 	the 	third employee organization, 	the
Peralta District 	Teachers Association, 	took 	no position on 	the
issue 	in 	this 	case. 	We 	affirm 	the 	finding of 	the 	hearing
officer.1
FACTS
The District 	has 	five 	colleges 	- Merritt 	and 	Laney Colleges
in Oakland, 	the College of Alameda 	in Alameda, 	the Peralta
College 	for Non-traditional Study 	in Berkeley, 	and Feather 	River
College 	in Quincy.
The 	Skills Center 	has 	approximately 	32 	certificated
employees who offer 	vocational 	training 	and guidance 	at 	a
location 	in Oakland 	five 	to 	eight miles 	from any of 	the
District's 	other 	facilities. 	The Center's operation depends 	on
its 	procurement 	of 	contracts 	from 	numerous 	government 	agencies
calling 	for 	the 	training 	of 	students 	in 	specified 	vocational
1An 	election was 	held 	on November 	1-3, 	1977 	pursuant 	to 	a
consent 	agreement 	allowing 	Skills 	Center 	employees 	to 	vote
challenged 	ballots 	pending 	the 	final 	decision 	of 	this 	case.
The 	results of 	the 	election 	have 	not 	been 	certified because 	the
19 	votes 	challenged 	here 	could 	have 	changed 	the 	result. 	The
Federation 	received 	300 	votes, 	the Peralta District Teachers
Association 	202 	and 	the Association 	194.

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areas. 	It 	is 	continuously making 	application 	for 	new contracts
and 	this 	results 	in 	variation 	in 	the 	amount of 	funding
available 	to the Center 	at 	any given 	time. 	At present, 	about
90 percent 	of 	the 	Center's 	funding 	originates 	from 	the 	federal
government 	under 	the 	Comprehensive 	Employment Training Act
(CETA) 	program 	and passes 	through 	various governmental
intermediaries 	which make 	the 	direct contract awards. 	The
remaining 	10 percent 	is 	derived 	from 	the 	state 	in 	average 	daily
attendance 	(ADA) 	funds.
The 	Center 	is 	in year-round 	operation 	and 	its 	classes 	have
highly variable 	lengths 	ranging 	from 	two weeks 	up. 	The 	classes
meet 	for 	at 	least 	six 	hours 	daily 	and 	instructors 	teach 	32
hours 	a week. 	In contrast 	to this 	intensive system, 	other
District 	instructors 	teach 	an 	average of 	15 	hours 	a week 	and
have 	five office 	hours 	a week 	during 	two 	18-week 	semesters 	or
three quarters, 	depending on 	the District 	college with which
they 	are 	affiliated.
Faculty members 	are 	hired 	to 	teach 	under 	specific
contracts. 	They can be 	terminated 	at 	the 	end of 	the contract
if 	no new contract 	requires 	their 	services. 	Employees 	are paid
on 	an hourly basis, 	ranging 	from $10.00 	to 	$11.50 	an hour.
This 	salary schedule 	is 	not 	related 	to 	the 	compensation 	of
other District personnel. 	Employees 	also 	receive dental,
medical 	and 	life 	insurance. 	They 	receive 	sick 	leave, 	but 	this
cannot be 	accumulated from year 	to year. 	Vacation 	time 	is
accumulated 	year-round. 	Some 	faculty pay 	into 	the 	Public
Employees Retirement 	System 	(PERS) 	while 	others 	are members of

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the 	State Teachers Retirement 	System 	(STRS). 	No sabbatical
leave 	is 	available.
Separate personnel policies 	exist 	for 	the 	Skills Center
including 	distinct 	grievance 	and 	evaluation procedures 	and 	a
different 	seniority system. 	Employees 	serve 	a 90-day
probationary period 	and 	do 	not 	receive 	tenure.2 The 	Skills
Center 	director 	supervises 	only 	Skills 	Center 	certificated
employees 	and 	reports 	to 	the 	president 	of Merritt College.
Skills 	Center 	faculty 	come 	in 	at 	least 	occasional 	contact
with other 	certificated 	staff 	of 	the 	District 	at meetings 	of
District 	faculty, 	of 	the Academic 	Senate 	and 	of 	District-wide
committees. 	Faculty only 	occasionally 	teach 	at 	another
District 	facility 	in 	addition 	to 	their 	work 	at 	the 	Skills
Center. 	They have 	no 	transfer 	rights 	to 	the 	other 	District
colleges. 	Courses 	similar 	to those 	taught 	at 	the 	Skills 	Center
are 	taught 	at other 	colleges 	in the District. 	However, 	the
Center's 	classes 	are much more 	intensive, 	designed 	to 	train 	a
student 	under 	industry conditions 	and 	to 	release 	them 	to 	find
employment 	as 	soon 	as 	they 	are 	able 	to meet 	the 	competency
specifications 	of 	the 	program.
Students 	are 	referred 	to 	the Center 	by 	various 	sponsoring
agencies 	and 	normally are 	not 	"walk-in" 	enrollees. 	Students
receive 	a stipend 	from sponsoring 	agencies 	in 	an 	amount
2The 	Federation 	has 	brought 	court 	challenges 	to 	the
employment 	policies 	of 	the 	District 	seeking 	equality with 	other
certificated 	staff. 	The 	cases 	are 	on 	appeal 	to the District
Court of Appeal. 	(Moore 	v. 	Peralta Community College District
and 	Robinson v. 	Peralta Community College District. 	(Super.
Ct., Alameda Co., Nos. 	487984-0 and 492190-9).)

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sufficient 	for 	livelihood 	during 	the 	training period. 	A
student 	must 	be present 	to 	receive 	a 	stipend 	for 	that 	day.
Occasionally 	a 	student 	from 	one 	of 	the 	other 	District 	colleges
will 	enroll 	at 	the 	Skills Center. 	Somewhat more 	frequently a
Skills 	Center 	student will 	take 	classes 	elsewhere, 	usually 	in
order 	to qualify 	for 	an Associate 	of Arts 	degree. 	Students
must petition 	to 	have 	Skills 	Center 	classes 	credited 	toward 	the
Associate 	of Arts 	degree.
DISCUSSION
I.
Both AFT 	and 	CTA 	are 	united 	in 	the 	view 	that 	certain 	Skills
Center 	teachers 	enjoy a 	sufficient 	community of 	interest 	to 	be
included 	in an 	"overall" 	unit 	of certificated personnel. 	In
addition, 	CTA makes 	an effort 	to breathe 	new 	life 	into an
argument 	laid 	to 	rest 	in Belmont 	Elementary School 	District3
and 	cemented 	over 	in 	Petaluma 	City 	Elementary 	and 	High 	School
Districts4 that 	all persons 	who 	teach 	in 	a 	classroom 	are
classroom 	teachers 	and must 	be 	in 	the 	same 	negotiating 	unit
under 	the provisions of section 3545(b)(I).5 Patently, 	it 	is
3(12/30/76) 	EERB Decision No. 	7.
4 (2/22/77) 	EERB Decision No. 	9.
5Unless 	otherwise 	indicated, 	all 	statutory references 	are
to 	the 	Educational 	Employment 	Relations 	Act 	(hereafter 	EERA)
and 	the Government 	Code. 	The EERA is 	codified 	at 	Government
Code 	section 3540 	et seq.
Section 3545(b)(l) 	is 	set out 	in the 	text below.

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CTA's position 	that 	the 	Skills 	Center 	teachers 	are 	classroom
teachers 	under 	the 	EERA.
The 	hearing 	officer 	has 	relied 	principally 	on New Haven
Unified 	School 	District,6 adopting, 	albeit 	somewhat
uncertainly, 	it seems, 	the Belmont and Petaluma concept that 	a
classroom teacher 	is one who is 	"regular, 	full-time, 	permanent
or 	probationary." 	Apparently 	finding 	this 	definition
inapplicable 	to 	the Skills Center 	teachers, 	he 	then proceeded
to 	find 	that 	these 	teachers 	lacked 	a 	sufficient 	community of
interest 	with 	employees 	in 	the 	"overall" 	certificated 	unit 	to
warrant 	their 	inclusion 	in 	that 	unit.
The 	proposed 	decision 	is 	examined 	here, 	not 	against 	the
edicts 	of prior 	Board holdings, 	but 	in 	light of 	the 	statutory
instructions 	given 	to 	this 	Board 	by 	the California Legislature.
* 	* 	*
Section 	3545 	has 	proven 	to 	be 	a 	troublesome 	scripture 	to
advocates 	and Board members 	alike. 	On 	its face, 	the provision
is 	alluringly 	ingenuous, 	clothed 	in 	the 	calico simplicity of
common words 	and phrases:
(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.
6(3/22/77) 	EERB Decision No. 	14,

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(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 	teachers 	employed 	by 	the 	public
school employer. 	. 	. 	(Quoted 	in pertinent
part.)
The 	term 	"classroom 	teacher" 	is 	not 	defined 	in 	the EERA.
In the Education Code, 	where 	the 	term 	is 	also used, 	no specific
definition 	is 	given, 	but particular 	uses 	of 	the 	term 	indicate
that 	it 	is 	applicable 	to all persons who 	teach 	in a 	classroom
for 	any period 	of 	time.7 If 	section 	3545(b) 	of 	the EERA
constituted 	the 	sole 	standard of unit 	determination, 	it 	is
possible 	that 	the 	Board 	would 	have 	placed 	all 	teachers 	in 	a
single 	unit, 	save possibly those 	deemed 	to be 	"casuals." 	But
sophisticated minds, 	burdened 	by private 	sector 	precedent 	and 	a
sensitivity 	to 	the 	dynamics of 	the 	negotiating 	unit, 	have 	found
themselves 	unable 	to whistle past 	the 	apparent 	contradiction
contained 	in section 	3545(a). 	Can 	the 	statutory criteria of
appropriateness 	be 	ignored? 	Should 	they 	be 	ignored?
After 	all, 	the statute must work. 	PERB, 	as the EERA
frequently reminds us, 	is 	obligated 	to see 	that 	it does.8
There 	can be 	no dispute 	that 	a primary purpose 	of 	the 	EERA 	is
to 	promote 	improved 	employer-employee 	relations 	through 	the
medium 	of 	collective 	negotiations.9 We 	believe 	it 	to 	be well
7 See, 	e.g., Education Code sections 41011, 	44897, 	44898,
54480, 84031, 87458, 87459.
8See 	sections 3540, 3541.3(f), 	(g), 	(i), (n), 3541.5,
3541.5(a), (c) .
9 Section 	3540.

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established 	that 	productive 	and 	stabilizing 	bilateral
decision-making 	is 	dependent, 	in part, 	on the essential
cohesiveness 	and 	compatibility of 	the 	various 	employee
constituents 	of 	the 	negotiating 	unit. 	While differences 	and
disagreements 	are 	unavoidable 	and 	are 	to be expected, 	they
cannot 	be 	so severe, 	so out of 	joint, 	as 	virtually to promise
disruption 	and 	final 	frustration of 	the 	negotiating process.
Certainly, 	this 	is 	the 	import 	of 	the 	statutory requirement 	of
community of 	interest 	and 	the 	reason 	for 	the preoccupation 	with
that 	criterion 	in 	the 	pertinent 	literature.
A literal 	interpretation of 	subsection 	(b)(1) 	is 	unlikely 	to
serve 	the 	statutory purpose 	if 	resulting 	units, 	designed 	to be
the 	vehicles 	for 	advancing 	the 	legislative 	aspiration, 	prove
instead 	to 	be 	the 	dissension-torn 	carriers 	of 	the 	system's
failures.10 Thus, 	other 	theories 	have 	been 	developed.
One 	theory 	simply turns 	its 	back 	on subsection 	(b)(1) 	and
would 	establish 	teacher 	units 	solely 	on 	the 	basis 	of 	the
statutory criteria in subsection 	(a). 	This approach,
unfortunately, 	ascribes 	to the Legislature, 	in creating
subsection 	(b)(1) , 	the commission of a meaningless act, 	a
conclusion 	abhorrent 	to 	standard 	principles 	of 	statutory
construction11 and 	devoutly 	to 	be 	avoided 	here.
10 Friends of Mammoth v. 	Mono County 	(1972) 	8 Cal.3d 	247;
Interinsurance Exchange v. Ohio Cas. 	Ins. Co. 	(1962) 	58 Cal. 	2d
142, 	152 	(sound public policy presumed 	to be preserved.).
1 1 See Moyer 	v. 	Workmen's 	Compensation Appeals 	Board 	(1974)
10 Cal.3d 222, 	230 	[514 P.2d 1224, 110 Cal.Rptr. 	144].

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Another 	approach 	to 	the dilemma of 	section 3545 	is 	to
concede 	that 	all 	classroom 	teachers must 	be 	in 	the 	same
unit—and 	then 	to 	define 	classroom 	teachers 	in 	a manner 	which
satisfies 	one's 	own 	view 	of 	which 	teachers 	should 	be 	included 	in
the unit. 	This, 	as we understand 	it, 	is the circular 	reasoning
of 	Belmont 	and 	Petaluma which 	has 	given 	us 	a parochial
definition 	limiting 	the 	statutory 	embrace 	to 	those 	considered 	to
be 	the 	"core" 	of 	the 	district's 	faculty.
As 	diverse 	as 	these 	interpretations 	are, 	they constitute
efforts 	to make 	the 	statute 	work 	and 	should not 	be 	faulted 	for
that 	effort. 	They 	demonstrate 	that persons of good 	intentions
can 	read 	different 	meanings 	into 	the 	words of 	another, 	no matter
how exact 	and 	uncomplicated 	they 	appear 	to be. 	Such 	is 	the
frailty of 	our 	multi-cellular 	intellectuality. 	It may well 	also
be 	the 	strength of 	our 	adjudicatory 	system 	in 	a world 	where
often 	"man 	takes 	the 	limits 	of 	his 	own 	field 	of 	vision 	for 	the
limits of 	the 	world."
Section 	3545 	remains 	a burdensome provision. 	Are 	Skills
Center 	teachers outside 	the pale of 	"core" 	personnel? 	Are 	they
classroom 	teachers? 	If 	so, 	are 	they 	to be 	included 	in or
excluded 	from 	the 	regular 	certificated 	unit?
There 	seems 	to 	be 	little 	doubt 	that 	the Legislature meant 	to
minimize 	the 	dispersion of 	school 	district 	faculty 	into
unnecessary negotiating 	units. 	It 	is 	apparent 	that 	unit
configurations based on geographical, 	or 	campus 	considerations,
or 	split 	along 	lines 	of 	academic 	disciplines 	and 	teaching
specializations 	are proscribed 	by subsection 	(b)(1). 	But 	that

is 	not 	to 	say 	that 	the 	Legislature 	rejected 	the 	possibility 	that
critical, 	negotiation-related differences between groups of
teachers 	might 	compel 	unit 	separation. 	We 	believe 	that 	to
reduce 	those possibilities 	the 	Legislature 	directed 	this 	Board
to 	combine 	all 	classroom 	teachers 	into 	a 	single 	unit 	except
where 	an 	issue 	of 	appropriateness 	is 	raised 	and 	the 	requirements
of 	subsection 	(a), 	which 	are 	then 	invoked, 	leave 	the Board with
no 	other 	option.
Reading 	subsection 3545 (b) 	together 	with 	its 	companion
subsection 	(a) 	gives 	rise 	to the presumption that 	all 	teachers
are 	to 	be placed 	in a single 	unit 	save where 	the 	criteria of 	the
latter 	section cannot be met. 	In this way, 	the legislative
preference, 	as 	the Board perceives 	it, 	for 	the 	largest possible
viable 	unit of 	teachers 	can be 	satisfied. 	Thus, 	we would place
the 	burden 	of proving 	the 	inappropriateness 	of 	a 	comprehensive
teachers' 	unit on those opposing 	it.
Three 	points 	raised 	in 	the 	concurring 	opinion merit
comment. 	First, 	the use of 	the word 	"shall" 	in section 3545(b)
precludes 	the 	exercise of 	discretion 	by 	this Board. 	The
majority's 	view 	is 	apparently misunderstood. 	The 	need 	for
interpretation 	here 	lies 	not 	solely 	in 	the 	words 	of
subsection 	(b), 	but 	in the 	apparent 	conflict posed by the 	entire
section 3545. 	Subsection 	(a) 	also employs 	the 	term "shall,"
mandating 	this 	Board 	to 	determine 	raised 	issues 	of
appropriateness 	according 	to 	specified 	criteria. 	No 	exception
to that 	clear directive, 	[such as 	"except 	for 	classroom
teachers,"] 	is 	expressed. 	The 	concurring opinion 	acknowledges
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that 	a 	legislative provision 	is 	not 	to be 	rendered meaningless
by an interpretation. 	What, 	then, 	is the meaning of
subsection 	(a) 	if 	this 	Board may only 	read 	and 	apply
subsection (b) .
Belmont 	avoided 	dealing 	with 	this 	problem by 	finding 	a
limited meaning for 	"classroom teacher." 	In so doing, 	it
attributed 	to 	the 	legislature 	a 	unique 	definition 	found 	nowhere
else. 	Even 	if 	that 	definition of 	classroom 	teacher 	were
acceptable, 	could 	subsection 	(a) 	really 	be 	ignored? 	The 	dissent
argues most 	eloquently 	that 	the 	legislature 	did 	not 	intend 	PERB
to 	establish 	units 	with 	disparate 	or 	conflicting 	interests 	or
which contain the potential 	for 	undesirable 	results. 	What, 	if
in 	fact, 	such would 	be 	the 	result of 	establishing 	a 	unit 	of
Belmont 	"classroom 	teachers?" 	Would 	subsection 	(a) 	then 	apply?
Of course, 	that 	too 	is 	a question 	that Belmont hopefully can
avoid, 	for 	in 	selecting 	a 	narrow band of 	teachers 	innately
cohesive 	in 	their 	interests Belmont 	really 	relies on 	an 	unstated
presumption of 	community 	of 	interest.
Second, 	the 	concurrence makes 	a similar 	point with 	respect
to the 	"in all cases" 	language. 	The majority 	is 	charged with
having 	eradicated 	that 	language. 	This 	argument 	is
inconsistent. 	To 	follow 	the preference 	expressed 	in 	the
concurring 	opinion 	would 	require 	this 	Board 	to make 	the 	words
"in 	each case" meaningless. 	Where 	the majority 	is 	attributed
with 	the 	reading: 	"in 	all 	cases 	- except 	in each 	case where 	an
issue 	arises," 	the concurrence 	interprets 	this 	section as 	'in
each 	case 	- 	except 	that 	in all 	cases 	..."
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Finally, 	the concurrence places 	some 	reliance on 	the 	fact
that 	certain 	amendments 	and 	proposed 	amendments 	to 	EERA did 	not
modify Belmont, 	concluding 	therefrom 	that 	the 	legislature
approved 	the 	Belmont 	interpretation. 	We 	view 	the 	failure 	of 	an
amendment 	as 	nothing more 	than 	the 	failure of 	the 	author's
individual preference 	to 	gain 	legislative 	support.12 This 	is
particularly 	true where 	the 	amendments 	are 	unrelated 	to 	the
issue 	supposedly 	being 	supported.13 SB 	1612 	would 	add 	a
subsection 	to section 3545 	as 	follows:
(2) 	A negotiating 	unit 	that 	includes
classroom 	teachers 	and 	pupil 	services
employees, 	as defined 	in subsection 	(e) 	of
section 33150 of 	the Education Code, 	shall
not 	be 	appropriate 	unless 	a majority of 	the
pupil 	services 	employees 	vote 	for 	inclusion
in the 	unit. 	If 	a majority of 	the pupil
services 	employees 	do 	not vote 	to be
included 	in 	a 	unit 	with 	classroom 	teachers,
a 	unit 	consisting 	of 	only 	pupil 	services
employees 	shall 	be 	appropriate.
Thus, 	if 	the 	failure 	to gain passage 	does 	have 	any 	special
significance, 	it 	would be countervailing 	to 	the point 	the
concurrence 	seeks 	to make. 	It 	is 	unlikely that 	the 	legislature
would 	be 	reticent 	in allowing 	non-teaching personnel 	to escape
from 	a 	certificated 	unit, 	but 	would 	condone 	the 	exclusion of
12Miles 	v. 	Worker's Compensation Appeals Board 	(1977) 	67
Cal.App.3d 	243, 	248 	fn 4 	(rejected 	bills 	have 	little 	value 	as
evidence of legislative 	intent) .
1 3 Stats. 	1977, ch. 	1159, 	sec. 	6, changed the name of the
Board 	from Educational 	to 	Public 	Employment Relations 	Board;
Stats. 	1977, ch. 	606, sec. 	3, made additions to the scope of
representation subject 	to meeting 	and 	negotiating; 	Stats. 	1977,
ch. 	1084, 	sec. 	3, 	specified new procedures pertaining to
decertification petitions.
12

various 	groups of 	teachers, 	and 	an expected proliferation of
teachers' 	units. 	But we 	are 	constrained 	to note 	that 	SB 	1612
has been 	referred 	to 	interim study. 	Thus, 	it may eventually
pass, 	fail, 	be amended or 	dropped. 	To cite so embryonic and
uncertain 	a proposal 	as 	evidence of 	legislative 	approval 	of
past 	Board 	decisions 	is 	astounding.
Similarly, 	the passage of 	amendments 	affecting 	sections 	of
EERA cannot 	be 	viewed 	as 	freezing 	interpretations 	of 	a 	totally
unrelated 	section. 	Indeed, 	even 	re-enactment of 	language will
not 	be 	construed 	to 	approve 	or 	condone 	an 	administrative
agency's prior 	erroneous 	interpretation of 	a 	statute.
(Louis Stores v. 	Dept. 	of Alcoholic Bev. 	Control 	(1962) 	57
Cal.2d 	749, 	759.) 	We 	firmly believe 	the Belmont definition of
classroom 	teacher 	is 	not 	condoned 	or 	approved 	by 	the 	enactment
of 	unrelated 	amendments. 	We 	firmly believe 	the 	Belmont
definition 	of 	classroom 	teacher 	to 	be 	erroneous.
In 	the 	last 	analysis 	there 	is 	irony 	in 	the 	fact 	that 	the
majority 	and 	concurring 	views 	are 	more 	alike 	than 	appear 	on 	the
surface. 	Certainly, 	it 	is Belmont's bottom line that only
those 	teachers 	who 	share 	a community of 	interest 	shall be 	in
the 	same 	unit 	(teachers who 	are 	"out of 	community" 	are 	to be
placed 	in different 	units 	or 	treated 	as 	casuals 	and 	excluded
altogether). 	The difference between the 	two views 	is 	thus 	less
philosophical 	than 	arithmetic. 	The majority of 	this 	Board
would 	subtract 	from a 	unit of 	all 	teachers 	only 	those groups
who fail 	to satisfy 	section 3545 (a) 	criteria; 	the concurring
member might 	add 	those 	teachers 	who 	do meet 	the 	criteria.
13

And 	here 	the 	significant 	difference 	between 	the 	two
approaches 	to 	the meaning of 	section 	3545 	is 	revealed. 	Under
Belmont, 	the Board would 	retain 	the 	right 	to exclude 	from a
unit 	of 	classroom 	teachers 	other 	teachers 	who 	share 	a community
of 	interest with 	those 	in 	the basic 	unit. 	This 	is 	simply
because 	the 	EERA does 	not mandate 	the most 	appropriate 	unit 	and
no 	such 	legislative preference 	is 	seen 	in 	the 	statutory
language. 	On 	the other 	hand, 	the Board under 	Peralta would be
obligated 	to combine 	different 	groups 	of 	instructional
personnel 	absent 	a 	finding 	that 	such 	community of 	interest 	does
not 	exist.14
All 	in all, 	it would appear 	that 	the majority is
substantially closer 	to a 	literal, 	but workable, 	interpretation
of 	section 	3545.
In 	construing 	section 	3545 	in 	harmony with 	the 	various
provisions of 	the 	EERA which 	admonish 	this Board 	to 	assist 	in
improving 	employer-employee 	relations 	through 	a 	viable 	system
of 	collective 	negotiations, 	the majority finds 	the 	concurring
member's 	own words 	appropriate:
A literal 	interpretation 	[of 	section 	3545]
would 	require 	the 	inclusion 	in 	the 	unit 	of
even 	the most 	casual 	employee who 	spends 	any
amount 	of 	time 	teaching 	in 	a classroom
regardless 	of 	the 	absence of 	a 	community of
interest 	of 	the 	employee 	with 	other 	members
of 	the 	unit. 	It 	is probable that employees
with 	greatly 	disparate 	or 	opposing 	interests
would be 	forced 	into the 	same 	unit. 	This
result 	could 	not 	have 	been contemplated by
the 	legislature because 	it 	would 	undermine
Board 	does 	not 	suggest 	that 	the 	other 	criteria
found 	in section 	3545(a) 	are 	to be disregarded. 	Nevertheless,
PERB 	case 	history 	indicates 	that 	"established 	past 	practices"
have 	actually 	had 	little 	or 	no 	impact 	on 	unit 	determination.
14

the 	smooth 	operation 	of 	the 	collective
negotiations process. 	The 	community of
interest 	and 	other 	unit 	determination
criteria 	have 	developed 	over 	time precisely
because 	they 	are 	useful 	in determining
reasonable, 	efficient 	and effective
negotiating 	units 	which 	serve 	to 	enhance 	the
collective 	negotiations 	relationship between
the 	employer 	and 	employee 	organization. 	A
mandated 	inappropriate 	unit 	which 	ignores
these 	criteria certainly was 	not 	the goal 	of
the 	legislature. 	[Concurring 	decision 	in
Belmont 	Elementary 	School 	District
(12/30/76) 	EERB Decision No. 	7, 	in support
of 	the 	classroom 	teacher 	theory. 	Emphasis
added 	throughout.]
II.
With 	this 	understanding of 	the 	statute, 	we 	find 	that 	the
Skills 	Center 	teachers 	are 	sufficiently 	lacking 	in 	community of
interest 	with 	other 	certificated 	employees 	to 	justify 	excluding
them from 	the 	overall 	certificated 	unit. 	Indeed, 	the 	interests
of 	the 	two groups 	are 	sufficiently disparate 	to 	raise 	the
possibility 	that 	the 	negotiating 	process 	would 	be 	seriously
impeded 	by 	internal 	disruption. 	In 	applying 	community of
interest 	factors 	to 	this 	case, 	we 	find 	the 	decisive
distinctions 	between 	Skills 	Center 	employees 	and 	other 	District
faculty 	to be 	the 	distinctive means 	of 	funding 	those positions,
lack of 	continuity of 	employment, 	differing 	instructional
practices 	and 	working conditions, 	differences 	in curriculum 	and
educational purpose, 	and 	a different method of 	compensation.
PERB's 	decision 	in New Haven Unified 	School 	District 	15
15 (3/22/77) 	Supra, 	EERB Decision No. 	14
15

and 	its 	two 	decisions 	in Oakland Unified 	School 	District16
are 	applicable 	to the 	facts 	here. 	In New Haven PERB excluded
CETA 	employees 	from 	a unit 	of 	regular 	instructors 	on 	the 	ground
that 	the groups 	did 	not 	share a community of 	interest. 	There,
the 	instructors 	were 	hired 	directly with CETA 	funds 	and 	taught
vocational 	skills 	to 	unemployed youths 	who 	received 	a 	stipend
for 	attendance. 	Classes 	were 	held year-round 	and 	instructors
taught between 18 	and 37 	1/2 	hours per 	week. 	The 	teachers 	held
adult 	vocational 	credentials 	and 	received 	health 	insurance 	if
they worked over 	30 	hours per 	week. 	In Oakland 	(PERB 	Decision
No. 	50), 	we found a classified unit of children's center
instructional 	assistants 	to be 	appropriate 	separately 	from 	a
unit 	of K-12 	instructional 	assistants. 	In Oakland 	(PERB
Decision No. 	1.5) 	a separate 	certificated unit 	for 	children's
center 	teachers, 	children's 	center 	teacher 	assistants 	and
children's 	center 	assistant 	supervisors 	was 	approved. 	Both
decisions 	were 	based 	on 	the 	differing 	job 	functions,
supervision, hours of work, work years, work locations, 	hiring
practices 	and 	certain 	fringe 	benefits 	in 	the 	children's 	center.
Here, 	unlike in New Haven, 	the Skills Center 	employees hold
community 	college 	credentials 	and 	receive 	benefits 	similar 	to
those of 	the 	regular 	faculty. 	But more 	importantly, 	as 	in
New Haven, 	the 	expectancy 	of 	continued 	employment 	by Skills
Center 	employees 	is 	significantly 	less 	than 	that 	of 	other
16(3/28/77) 	EERB Decision No. 	15; 	(4/14/78) 	PERB Decision
No. 50.
16

certificated 	employees 	of 	the 	District. 	The Center 	employees
must 	rely on short-term 	federal 	contracts 	for 	employment. 	The
District 	is 	seeking 	new 	awards 	continually, 	and 	the Center
budget 	is 	thus 	in a continuous 	state of 	flux.
The 	Federation 	and 	the Association 	contend 	that 	the 	Skills
Center 	employees 	have 	demonstrated 	continuity of 	employment 	in
much 	the 	same way 	as 	the 	part-time 	faculty 	found 	appropriate 	to
the 	overall 	unit 	in Los 	Rios Community College District.17
However, 	the 	fact 	that 	Skills 	Center 	employees may continue
their 	employment 	from year 	to 	year, 	though 	not 	guaranteed 	such
reemployment, 	is 	not controlling here. 	Their continued
employment 	is 	subject 	not 	to 	the 	availability of 	District 	funds
but of 	federal 	funds 	outside District 	control.
The 	separateness 	of 	the Skills Center 	is 	further 	shown by
its 	instructional practices. 	While 	regular 	faculty 	teach 	an
average 	of 	15 	hours 	a week 	and 	spend 	another 	five 	hours 	in
their 	offices 	during 	the 	course of 	two 	18-week 	semesters 	or
three quarters, 	the 	Skills Center 	instructors 	teach 	32 	hours 	a
week year-round. 	The 	Skills 	Center 	counselors 	deal 	with
personal 	adjustment 	problems 	of 	students 	as 	a primary function,
and 	do 	not 	do the 	course 	planning 	for 	students.
Personnel practices 	differ 	substantially. 	While 	they 	are
subject 	to negotiations, 	and 	hence modification, 	they do
reflect 	a history of 	distinctive 	treatment, 	and 	possibly
diverse 	interests. 	Skills 	Center 	employees 	do 	receive 	similar
17(6/9/77) 	EERB Decision No. 	18 •
17

health benefits, 	but 	their 	sick leave 	does 	not 	accumulate 	from
year 	to year 	like 	that of 	other 	employees. 	They 	receive
vacation 	based 	on 	their 	year-round 	work 	instead 	of 	according 	to
the 	shorter 	regular 	faculty work year. 	Regular 	faculty 	also can
take 	periodic 	sabbatical 	leaves 	not 	provided 	to 	Skills 	Center
employees. 	The 	Skills 	Center 	certificated 	employees 	also
presently 	have 	a 	separate 	grievance 	procedure 	and 	seniority
system, 	and 	they 	are 	supervised 	separately 	from 	other
certificated 	employees 	of 	the 	District. 	Historically, 	the
salaries of 	Skills Center 	employees, 	which 	are on an hourly
rate, 	have 	not 	been 	related 	to 	the 	compensation of 	other
certificated 	employees.
The 	other 	working conditions 	of 	instructors 	at 	the Center
also 	demonstrate 	their 	isolation 	from 	other 	certificated
employees. 	The 	Center 	is 	geographically 	removed 	not 	only 	from
other District 	facilities, 	but 	even from Merritt College, 	to
which 	it 	is 	attached 	administratively. 	Center 	students 	receive
a wage 	for 	full-time 	attendance 	in 	a work 	environment, 	compared
to 	the 	unpaid 	and much 	less 	intense 	normal 	academic 	organization
of 	the 	regular 	programs. 	While 	evidence was presented 	showing
interchange 	of 	students 	and 	faculty between 	the 	Skills 	Center
and 	other District 	colleges, 	this 	interchange 	is 	significantly
less 	than 	the 	interchange which 	is 	sanctioned 	as 	a matter 	of
course between 	the 	colleges.
The 	curriculum 	and 	educational 	purposes 	of 	the 	Center 	are
also 	indicative of 	the 	different 	community of 	interest 	of 	Center
employees. 	The Center 	offers 	very 	intensive programs 	to
18

students 	in 	need 	of 	job 	training 	who 	are 	referred 	by 	government
agencies. 	These programs 	are 	intended 	to make 	students
immediately 	employable 	upon 	their 	completion. 	While 	the 	other
colleges offer 	some vocational programs, 	these 	are 	uniformly 	at
a slower 	pace, 	less 	in depth, 	and part of a traditional, 	general
curriculum.
Based 	on 	these 	differences, 	we 	find 	that Skills Center
instructors 	do 	not 	share 	a 	community of 	interest 	with 	other
certificated 	employees 	of 	the 	District 	and 	that 	a 	single 	unit
including 	Skills 	Center 	instructors 	would 	be 	inappropriate. 	In
determining 	the 	appropriate 	unit, 	little weight 	is 	given 	to 	the
limited 	evidence of 	negotiating 	history prior 	to 	the EERA. 	It
is 	not 	sufficient 	to overcome 	the 	differing 	community of
interest. 	No 	evidence was 	introduced 	concerning 	the 	effect 	on
the 	efficiency 	of 	operation 	resulting 	from placement 	of 	Skills
Center 	employees. 	Therefore, 	we would exclude 	the Skills Center
employees 	from 	the 	unit 	and 	uphold 	the 	challenges 	to 	their
ballots.
III.
Finally, 	it 	should be made 	clear 	that 	the effect 	of 	this
reevaluation 	of 	the 	meaning 	of 	section 	3545 	should 	be
prospective 	only. 	As 	already indicated, 	PERB's prior 	holdings
were 	rendered 	soon 	after 	the 	implementation of 	the 	EERA on 	a
difficult 	and patently debatable question. 	Since 	then, 	many
districts 	and many employee organizations, 	and 	this Board, 	have
expended 	considerable 	time 	and 	effort 	in 	complying 	with 	the
19

dictates 	of 	those 	decisions. 	Negotiations 	and 	certi.fications
have 	been 	granted, 	contracts 	have 	been 	executed 	and 	in many
units 	negotiations 	are 	even now 	in progress. 	It 	would 	not 	serve
the 	statutory goal 	of 	the 	stabilization of 	employer - employee
organization 	relations 	in 	the 	public 	school 	system 	if 	we 	were 	to
void, 	or 	in 	any way 	interfere 	with units 	already 	established
under 	the 	guidelines 	of 	Belmont 	or 	Petaluma. 	Similarly, 	we
authorize 	the 	completion 	of 	pertinent 	representation 	elections
which 	have 	already been 	scheduled 	or 	which 	are 	now 	in progress.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board ORDERS 	that :
1 . 	The 	challenges 	to 	the 	19 	Skills 	Center
employee 	ballots 	are 	sustained 	and 	said
ballots 	shall 	not 	be 	included 	in 	determining
the 	outcome 	of 	the 	representation 	election
conducted 	by 	the 	Board 	in 	the 	certificated
negotiating 	unit 	of 	~he 	Peralta 	Community
College 	District;
2 . 	The 	19 	Skills 	Center 	employees 	are
excluded 	from 	the 	certificated 	negotiating
unit 	proposed 	by 	the 	regional 	director 	as 	an
appropriate 	negotiating 	unit 	and 	in 	which 	a
representation 	election 	has 	been 	held.
H a r ry 	G l uck , 	C h a irp erso n 	l"Jfilou 	Cossack Twohey, Memb~ -:;ij
I
Raymond J. 	Gonzales, 	Member, 	concurring:
I 	concur 	with 	the majority opinion 	in 	all 	respects 	except
its 	treatment 	of 	Government 	Code 	section 	3545(b) (1). 	On 	this
20

point, 	I 	retain 	those views 	as 	expressed 	by a majority of 	the
,
Board 	in Belmont 	Elementary School 	District.1 In 	that
decision, 	as author of the majority position, 	I considered, 	as I
still do, 	section 3545(b)(l) 	to be a limitation on 	the Board's
discretion 	in 	structuring 	certificated 	units 	which 	include
instructional personnel of a school district. 	Hence, 	while
section 	3545(a) 	sets 	forth basic 	criteria 	by which 	the Board
might 	exercise 	considerable 	discretion 	in 	determining
appropriate 	units,2 	that 	discretion 	is 	affected 	by 	the
patently 	restrictive 	language of 	section 	3545(b)(l) 	given 	to us
by 	the Legislature. 	It 	is 	clear 	that 	the Legislature
purposefully 	adopted 	this 	section 	in 	pursuit 	of 	certain 	values,
namely, 	ease of administration 	in 	the 	area of collective
negotiations 	and 	a 	coherent 	voice 	for 	all 	the District's
teachers. 	This 	section reads:
In 	all 	cases
A 	negotiating 	unit 	that 	includes 	classroom
teachers 	shall 	not be 	appropriate 	unless 	it
at 	least 	includes 	all 	the 	classroom 	teachers
employed 	by 	the 	public 	school 	employer
except management 	employees, 	supervisory
employees, 	and confidential employees.
(Emphasis 	added).
Accepting 	such 	language 	as 	a 	limitation 	placed 	on 	this
Board, 	I nevertheless acknowledge, 	as I did in Belmont, 	that
the 	directive of 	this 	subdivision, 	if 	applied 	literally, 	has
the potential 	for 	results many would 	find 	undesirable. 	For
1 (12/30/76) 	EERB Decision No. 	7.
2Antioch Unified 	School 	District 	(11/7/77) 	EERB Decision
No. 37.
2.1

\
example, 	instructional 	staff 	who 	have 	substantially 	disparate
or 	conflicting interests or who, 	on an historical basis, 	have
had 	demonstrably 	difficult 	group 	negotiations, 	would 	be 	forced
to 	join 	hands 	in the negotiating process. 	Such 	an 	amalgamation
of 	employees 	would 	be 	disruptive 	to 	the 	process 	of 	collective
negotiations, 	hardly 	enhancing 	stability 	in 	employer-employee
relations. 	Given 	the potential 	for 	such disruption, 	it was 	the
opinion of 	a majority of 	this 	Board 	that 	an 	appropriate
solution 	lay 	in 	the 	Board's 	exercising 	its 	authority 	and 	duty
as 	an 	administrative 	body 	by 	narrowly 	interpreting 	the
undefined 	term,3 "classroom 	teachers" 	found 	in
section 	3545(b)(1), 	a 	term which 	is 	clearly 	ambiguous.4 By
doing 	this, 	the Board 	could 	continue 	to 	acknowledge 	section
3545(b)(1) 	as 	a 	legislative mandate 	to be 	applied 	"in 	all
cases" 	and 	at 	the 	same 	time 	assure 	that 	its 	impact 	would 	be
consistent 	with 	the 	goals 	of 	smooth 	collective 	negotiations 	and
3Sacramento 	Typographical Union v. 	State 	(1971) 	18
Cal.App.3d 	634. 	The construction of 	a 	statute 	by 	an
administrative 	board 	cannot 	change 	its 	clear 	language 	or 	alter
its 	plain meaning; 	such 	construction 	can only be 	resorted 	to 	in
order 	to 	clear 	up 	uncertainties 	and 	ambiguities.
4Some 	would 	dispute 	whether 	or 	not 	the 	term 	"classroom
teachers" 	is ambiguous. 	"Ambiguous" 	is defined as 	"[c]apable
of being 	understood 	in more 	senses 	than one; 	having 	a double
meaning." 	(Standard College Dict. [1963] 	page 46). 	In the
context of 	section 3545, 	it 	is 	highly doubtful 	that 	the
Legislature 	intended 	"classroom 	teachers" 	to mean 	only 	those
persons 	who 	teach 	in a 	classroom 	to 	the 	exclusion 	of 	teachers
who perform their 	services 	in a home, 	in a gym, 	on a playing
field, 	in a workshop, 	or 	in an automobile. 	I do not 	know of
anybody, 	including 	the members of 	this Board, 	who would 	so
favor 	that 	interpretation. 	On 	the 	other 	hand, 	the 	Legislature
did 	use 	the 	term 	"classroom 	teachers" 	rather 	than 	"teachers,"
and 	it 	certainly 	is 	arguable that 	the 	term does 	have 	a limited
meaning.
22

stability of 	employer-employee 	relations, 	goals which 	section
3545 (a) 	criteria seek to 	foster.5 Thus, 	the Board
interpreted 	"classroom 	teachers" 	to mean 	"all 	of 	the 	regular
full-time probationary 	and 	permanent 	teachers 	in 	a 	district,"
since 	teachers meeting 	this 	description 	comprise 	the 	largest
homogeneous 	unit 	of certificated 	employees 	within 	a district.
But while 	the 	Legislature 	has 	left 	us 	room 	to 	specify 	the
scope of 	the 	limitation 	imposed 	by 	section 3545(b)(1) 	by
defining 	the 	statute's 	undefined 	terms, 	it 	has 	not 	invited 	us
to, 	in effect, 	repeal 	a duly-enacted 	statute 	by 	ignoring 	its
clear 	language 	and 	purpose 	as 	the majority does 	now 	in 	this
case.
Without 	any 	statutory 	authority whatsoever, 	the majority
somehow manages 	to 	ignore what 	is 	a 	clear 	substantive 	rule 	of
law given 	to us by the Legislature, 	section 3545(b)(1), 	which
this 	Board 	is 	obligated 	to 	follow.6 Instead 	they
conveniently 	and 	casually 	conclude 	that 	a 	rebuttable
presumption 	is 	created 	by 	reading 	subdivision 3545 (a) 	together
5See 	Anderson Union High 	School 	District 	v. 	Schreder
(1976) 	56 	Cal.App.3d 453, 	where the court held 	that 	in
interpreting 	a 	statutory word, 	the 	objective 	of 	the 	statute 	is
a prime 	consideration 	and 	where 	a word 	has 	several meanings,
the 	court 	must 	adopt 	the meaning 	which 	will 	best 	achieve 	the
statute's 	purpose.
6A 	legislative mandate, 	made 	obvious by 	the 	use of 	the
term 	"shall," 	has 	the 	invariable 	significance 	of 	excluding 	the
idea of discretion. 	(Gov. Code sec. 	14).
23

with 	subdivision 	3545(b)(I).7 That presumption 	is 	"that 	all
teachers 	are 	to be 	placed 	in a 	single 	unit 	save where 	the
criteria of 	subdivision 	3545 (a) 	cannot 	be 	met."8 My
colleagues 	fail 	to 	appreciate 	the 	exactness 	of 	language 	that
the Legislature uses 	in creating presumptions. 	In some cases,
the 	Legislature 	will 	expressly 	create presumptions 	by 	using 	the
7 For 	purposes 	of 	historical 	perspective 	and 	to
demonstrate 	just 	how casual 	the majority's 	approach 	to 	the
issue 	of 	classroom 	teacher 	has 	been, 	I would point out 	that 	the
majority's 	initial 	and 	presumably 	solid position 	on 	this 	issue
was 	that 	"subsection 	(b)(1) 	creates 	a statutory presumption
that 	all 	classroom 	teachers 	share 	a 	community of 	interest."
They 	so 	expressed 	that 	view 	in 	an 	opinion 	signed 	by 	them on
October 	3, 	1978. 	As per Board 	internal procedure, 	the opinion
was 	then 	due 	for 	publication within 	ten 	days, 	allowing 	this
board member 	that 	time 	to submit 	a concurrence. 	However, 	after
receiving 	the 	concurrence 	which 	pointed 	out 	numerous
infirmities 	in 	the majority decision, 	the majority 	immediately
withdrew 	their 	opinion, 	indulging 	themselves 	time 	for 	an
attempted 	revision. 	It 	seems 	to me 	that 	on such 	a momentous
occasion, 	namely 	the 	overruling 	of 	a precedent 	almost 	as old 	as
this 	agency, 	and 	considering 	the amount of 	time 	that 	has 	lapsed
since 	the 	initial 	deliberations 	in this 	case, 	almost 	five
months, 	the majority would 	have 	subjected 	their 	new holding 	and
supporting 	rationale 	to 	a 	higher 	standard 	of 	scrutiny 	then 	was
apparently 	employed. 	But 	given 	the majority's 	historical
treatment 	of 	this 	issue, 	I 	can only 	conclude 	that my colleagues
were 	far more 	interested 	in 	achieving 	a particular 	result, 	the
overruling of 	Belmont, 	than 	they were 	in utilizing 	a reasoned
process 	to 	arrive 	at 	a 	logical 	and 	legitimate 	alternative 	to
Belmont, 	if 	indeed one 	exists. 	This 	is not 	the 	first 	time that
my 	two 	colleagues 	have 	reached 	a 	decision before 	finding 	a
basis 	for 	that 	decision 	that 	would meet 	even 	their 	criteria 	for
persuasiveness. 	I object 	to this 	result-oriented procedure 	as
a 	substitute 	for 	deliberations.
majority never 	uses 	the 	term 	"rebuttable
presumption," 	but 	it 	is 	clear 	from the majority's 	discussion
that 	the 	presumption 	found by 	reading 	subdivisions 	3545 (a) 	and
3545(b)(1) 	together operates 	as a 	rebuttable presumption. 	A
rebuttable presumption 	is 	defined 	as 	a 	"species 	of 	legal
presumption which 	holds 	good 	until 	disproved." 	(Black's 	Law
Dictionary 	(4th 	ed.) 	p. 	1432).
24

•
term 	"presumption" 	or 	"presumed."9 Alternatively, 	statutes
which 	use 	the phrase 	"prima 	facie 	evidence" 	rather 	than 	the
more 	precise 	term 	"presumption" 	are 	also 	treated 	as 	rebuttable
presumptions.10
Interestingly, 	apropos 	examples 	of 	the Legislature's
purposefulness 	in 	this 	area 	can 	be 	found 	in 	recently-enacted
legislation 	which 	this 	very Board 	is 	charged 	with
implementing. 	I 	refer 	specifically 	to Senate Bill No. 	839 	and
Assembly Bill 	No. 	1091 	which 	relate 	to 	employer-employee
relations 	for 	state 	employees 	and 	higher 	education 	employees,
respectively. 	In Senate Bill No. 	839, 	the Legislature created
a 	rebuttable 	presumption 	regarding 	unit 	designation 	for
professional 	and 	non-professional 	employees 	in 	state 	service.
Government Code 	section 	3521(c) 	states:
There 	shall 	be 	a presumption 	that
professional 	employees 	and 	nonprofessional
employees 	should 	not 	be 	included 	in 	the 	same
unit. 	However, 	the presumption shall be
rebuttable, 	depending 	upon what 	the 	evidence
pertinent 	to 	the 	criteria 	set 	forth 	in
subdivision 	(b) 	establishes.11
9The 	Evidence Code 	is 	replete 	with 	such 	presumptions.
See generally, 	Ev. 	Code sec. 	600 et seq.
. 	Code 	sec. 	602, 	which states "A statute providing
that a 	fact or 	group of 	facts 	is 	prima 	facie 	evidence of
another 	fact 	establishes 	a 	rebuttable 	presumption." 	See 	also
Witkin, Cal. Evidence 	(2d Ed. 1966) 	sec. 	253, pp. 	215-216.
llGov . Code sec. 	3521 (c) 	added by Stats. 	1977, ch. 	1159,
sec. 4, p.
25

Assembly Bill 	No. 	1091 	creates 	a 	rebuttable presumption 	similar
to 	that 	above-quoted.12 Additionally, 	it 	creates a
rebuttable 	presumption 	regarding 	unit 	designation 	of
occupational groups. 	Government Code 	section 3579 (c) 	provides:
There 	shall 	be 	a presumption 	that 	all
employees 	within 	an 	occupational 	group or
groups 	shall 	be 	included within a 	single
representation unit. 	However, 	the
presumption shall be 	rebutted 	if 	there 	is 	a
preponderance 	of 	evidence 	that 	a 	single
representation 	unit 	is 	inconsistent with 	the
criteria 	set 	forth 	in subdivision 	(a) 	or 	the
purposes 	of 	this 	chapter.13
That 	the Legislature 	acts 	deliberately 	in 	its 	creation 	of
presumptions 	is 	unquestionable. 	Where 	the Legislature 	has
purposefully 	chosen 	presumption 	language 	to 	create 	presumptions
in other 	statutes 	we 	are 	charged 	with 	enforcing, 	it 	simply
cannot 	be 	contended 	that 	the 	Legislature 	misspoke 	its 	intention
in writing 	section 3545(b)(1). 	I 	find 	it difficult 	to
understand 	how 	the majority 	can 	so 	easily 	dismiss 	section
3545(b)(1), 	a clear 	legislative mandate. 	In finding a
presumption, 	the majority 	is 	not 	interpreting 	legislative
intent 	but 	rather 	usurping 	legislative 	power.
1 2 Gov. Code sec. 	3579(b) 	added by Stats. 	1978, ch. 	744,
sec. 	3, 	p. 	. 	This section states:
There 	shall 	be 	a presumption 	that
professional 	employees 	and 	nonprofessional
employees 	shall 	not 	be 	included 	in 	the 	same
representation unit. 	However, 	the
presumption 	shall 	be 	rebuttable, 	depending
upon what 	the 	evidence pertinent 	to 	the
criteria 	set 	forth 	in 	subdivision 	(a)
establishes.
1 3 Gov. Code sec. 	3579(c) 	added by Stats, 	1978, ch. 	744,
Sec. 3, p
26

The 	majority 	furthermore 	has 	ignored 	both 	the 	structure 	and
careful wording of 	section 3545 as a whole. 	Subdivision 	(a),
which 	specifies 	the 	general 	criteria we 	are 	to 	follow 	in unit
determination 	cases, 	is 	to be 	applied 	"[i]n 	each 	case where 	the
appropriateness 	of a unit 	is 	at 	issue..."; 	the limits 	on this
Board's 	discretion contained 	in 	subdivision 	(b)(1) 	are 	to apply
"[i]n all cases...." 	(Emphasis added). 	In other words, 	by
including subdivision 	(b)(1), 	the Legislature 	has 	specifically
declared 	an 	exception 	to 	the 	general 	provision 	of 	subdivision
(a), 	and 	in so doing has made the phrase 	"in each case," 	(found
in 	subdivision 	(a)) 	a virtual nullity where 	the 	unit
designation 	of 	classroom 	teachers 	is 	an 	issue.14 However,
through 	interpretive 	alchemy 	the majority 	has 	done 	the 	reverse,
causing 	the 	language 	"[i]n 	all 	cases" 	to 	disappear 	from 	section
3545. 	In effect 	they have 	translated 	"[i]n all 	cases" 	into
"[i]n 	all 	cases 	[except 	in 	each 	case where 	the 	appropriateness
of 	the unit 	is at 	issue]." 	Consequently, 	to the majority,
subdivision 	3545(b)(1) 	takes 	on 	a binding quality only 	in 	the
absence of 	any 	issue as 	to appropriateness of 	the 	unit.
By 	so 	ignoring 	the 	simple 	language 	"in all 	cases" 	the
majority 	violates 	the 	very 	canon 	of 	statutory 	construction 	they
felt predisposed 	to cite; 	namely, 	that 	statutory construction
which makes 	some 	words 	surplusage 	is 	to be 	avoided because 	to
14As 	discussed 	earlier, 	however, 	consistent with 	the
Legislative mandate set forth 	in section 3545(b)(1), 	the Board
may 	properly 	exercise 	its 	interpretive 	powers 	where 	language
given us by the Legislature 	is ambiguous. 	In this way, 	the
apparent 	tension between subdivisions 	3545 (a) 	and 	(b) (1) 	can be
resolved.
27

do 	otherwise 	is 	to 	ascribe 	to the Legislature 	a meaningless
act.1 5 Could 	it 	really 	be 	that 	the 	Legislature 	intended
section 3545(b)(1) 	to take on a 	chameleon 	character,
engendering 	a presumption when 	there 	exists 	an 	issue 	of
appropriateness, 	but disappearing when there 	is 	no 	issue of
appropriateness? 	I 	am baffled 	by 	the majority's 	intuition.
Would 	the 	Legislature 	bother 	to 	adopt mandatory 	language 	and
have 	it apply only 	in circumstances where, 	in actuality, 	the
Board 	does 	not 	get 	involved? 	We 	only become 	aware 	of 	the
inappropriateness 	of a unit 	when 	an 	issue 	is 	raised 	on 	appeal
to 	this 	Board. 	Are my 	colleagues 	going 	to go 	through 	the
Board's 	files 	at 	night 	in search 	of misaligned 	units 	in order
to meet 	the obligation 	of 	placing 	all 	classroom 	teachers 	in 	the
same 	unit? 	I 	hardly 	think 	that 	the 	Legislature 	intended 	to
create 	an 	illusory limitation 	in section 3545(b)(l).
Additionally, 	it 	seems 	to me that 	the 	very result 	that 	the
majority seeks 	to 	avoid, 	a proliferation of 	negotiating 	units,
is 	actually promoted 	by 	their 	new 	holding. 	Because 	section
3545(b)(1) 	is 	viewed as merely 	invoking 	a presumption, 	the only
relevant 	law 	for 	determining 	the 	appropriateness 	of 	the 	unit 	is
section 3545(a). 	The 	language of 	section 3545(b)(1) 	which was
obviously 	intended 	to 	be comprehensive, 	including 	in all 	cases
all 	the District's 	teachers 	in one 	unit, 	is 	no longer 	treated
as 	binding. 	Thus 	it 	is 	conceivable, 	given a set of 	facts
appealing 	to 	the majority, 	that 	the 	community of 	interest
15 Moyer v. 	Workmen's Comp. 	Appeals Bd. 	(1973) 	10 Cal.3d
222, 230.
28

criterion would make 	units 	based 	on 	subject 	area, 	work
location, 	or 	grade 	level 	appropriate 	since 	the 	only operative
language to be applied, 	section 3545(a), 	is 	that which gives
the 	Board 	broad 	discretion.16
Given my approach 	to subdivision 3545(b)(1), 	however, 	the
comprehensiveness of a 	unit 	is 	guaranteed 	since 	a 	unit of 	the
District's 	instructional 	staff must, 	at 	the very least, 	include
"... 	all 	of 	the 	regular 	full-time probationary 	and permanent
teachers 	in a 	district."17 Additions 	to 	the 	core 	unit 	would
then 	depend 	on 	the 	application of 	section 	3545(a) 	criteria 	to
the 	facts 	of 	a particular 	case. 	If 	the 	facts 	show 	(1) 	that
other 	instructional 	staff, 	indeed 	other 	certificated 	staff,
share 	a community of 	interest with 	the 	core 	staff, 	(2) 	that 	the
established practices 	of 	the 	employees 	support 	a 	combination 	of
such 	employees 	or, 	alternatively, 	do not 	outweigh 	the community
of 	interest 	and efficiency of 	operations 	considerations, 	and
(3) 	that 	the 	efficient 	operation of 	the 	school district 	is
promoted, 	not 	encumbered, 	then the 	inclusion of 	such 	staff 	in
an 	overall 	unit 	is 	warranted. 	To determine 	otherwise would 	be
an abuse of discretion. 	Consequently, 	if 	the majority feels
that 	the 	difference 	between 	their 	view 	and my 	view 	of
section 	3545(b)(l) 	is 	"less philosophical 	than 	arithmetic,"
majority comments 	otherwise 	on 	this 	point. 	But
they, 	as well 	as 	I, 	are surely aware 	that 	the EERA lacks 	any
legislative 	history which 	would 	support 	the 	statement 	that 	the
Legislature 	specifically 	intended 	to 	avoid 	unit 	configurations
based, 	for 	example, 	on geographic lines. 	It has simply been
assumed 	by many 	that 	this 	is 	an 	unspoken 	legislative 	intent.
17Belmont, 	supra at 	11.
29

then 	either 	they 	do 	not 	understand 	Bel mont 	or 	they 	do 	not
understand 	arithmetic.
Finally, 	I 	would point 	out 	that 	in 	the 	almost 	two 	years
since 	the 	Board ' s 	issuance 	of 	Belmont, 	the 	Legislature 	has 	had
numerous opportunities 	to 	amend 	section 	3545 (b) 	(1) 	if 	it 	felt
that 	the 	Board's 	interpretation of 	that 	section was 	erroneous .
Amendments 	to 	the 	Educational 	Employment 	Relations 	Act 	(Gov .
Code 	3540 	et~ . ) 	have 	been 	introduced 	and passed 	upon by 	the
Legislature 	on 	several 	occasions . 18 A 	recently 	introduced
amendment, 	in 	fact, 	focused 	on 	the 	language 	of 	section
3545 {b) (1) 19 That 	bill 	has 	been 	referred 	to 	an 	interim
committee 	for 	further 	study 	regarding 	the 	issue 	of
non-instructional 	certificated 	staff . 	The 	failure 	of 	the
Legislature 	to 	change 	the 	law 	in 	a 	particular 	respect 	when 	the
subject 	is 	generally before 	it 	and 	changes 	in other 	respects
are made 	is 	indicative 	of 	an 	intent 	to 	leave 	the 	law as 	it
stands 	in 	the 	aspects 	not 	amended. 20
By 	ignoring 	the 	mandate 	of 	subsection 	3545(b) (1) 	and
instead 	creating 	a 	rebuttable 	presumption, 	my 	colleagues 	ignore
the 	legislative 	will 	and 	far 	exceed 	their 	discretionary
authority .
R ay m o nd J . 	G on zal es, 	Member:
I
18 E . g. 	Gov . 	Code 	sec . 	3540 . 1 	as 	amended by Stats . 	1977,
ch. 	1159, 	sec. 	6, 	p . 	; 	Gov . 	Code 	sec. 	3543 . 2 	as 	a mended by
Stats . 	1977, 	ch. 	606, 	sec . 	3, 	p . 	; 	Gov . 	Code 	sec . 	3544 . 5 	as
amended by Stats . 	1977, 	ch . 	1084, 	sec . 	3, 	p. 	•
19 Senate 	Bill 	No. 	1612 	(1977-1978 	Reg . 	Session) 	sec . 	1 .
20 Place v. 	Trent 	(1972) 	27 	Cal . App . 3d 	526 .
30