Hartnell Community College District (PERB 0081E)

STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
e
HARTNELL 	COMMUNITY COLLEGE 	DISTRICT,
Employer,
and
HARTNELL COLLEGE FACULTY ASSOCIATION, 	CTA/NEA,
Employee 	Organization.
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) 	Case No. 	SF-R-312
PERB Decision No.81
January 2, 	1979
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Appearances: 	Andrew Church, 	Attorney 	(Abramson, 	Church & Stave)
for Hartnell Community College District; 	and Duane 	B. 	Beeson,
Attorney 	(Brundage, 	Beeson, 	Tayer and Kovach) 	for Hartnell
Faculty Association, 	CTA/NEA.
Before Gluck, 	Chairperson; 	Cossack Twohey and Gonzales, Members.
DECISION
On July 15, 	1977 hearing officer Ronald E. 	Blubaugh issued a
proposed 	decision 	finding 	that 	the unit 	appropriate 	for meeting 	and
negotiating 	included all 	full-time 	regular 	and 	contract 	certificated
employees 	and 	all 	part-time 	certificated 	employees who have 	taught
three 	semesters 	out 	of the 	last 	six semesters 	inclusive. 	The hear-
ing officer 	also 	concluded 	that 	department 	chairpersons were not
management 	employees 	and 	therefore
,	 included them in 	the negotiating
unit. 	Thereafter, 	Hartnell 	Community College District 	filed timely
exceptions 	to both 	conclusions 	of 	the hearing 	officer. 	We have
considered 	the 	record as 	a whole 	and 	the 	attached proposed 	decision
in 	light 	of 	the exceptions 	filed and affirm the rulings, 	findings
and conclusions 	of 	the hearing officer 	to 	the 	extent 	they 	are
consistent with 	this 	opinion.
.. .
The 	Part-Time 	Faculty
Hartnell Community College District 	(hereafter District) 	contends
that 	part-time 	faculty 	do not 	possess 	a 	sufficient 	community 	of
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interest with 	full-time 	faculty 	to warrant 	their 	inclusion 	in 	the
same negotiating unit. 	Conversely, 	Hartnell College Faculty Associa-
tion 	(hereafter Association) 	seeks 	to 	include 	full 	and part-time
faculty 	in 	a 	single negotiating unit. 	We 	find that 	part-time 	and
full-time 	faculty 	in 	this 	District 	possess 	a 	community 	of 	interest
which warrants 	their 	inclusion 	in 	the 	same negotiating unit. 	In
reaching 	this 	determination, 	however, 	we 	do not rely exclusively
on Los 	Rios 	Community College District, 1 since 	the 	determination as
to whether 	separate 	groups 	of employees 	do or do not possess 	a
community 	of 	interest with 	each 	other 	sufficient 	to 	require 	their
inclusion 	in 	one negotiating unit must be 	determined on 	the 	facts
of each case.
1
I
The District 	employs 	approximately 	113 	full-time 	faculty, 	166
part-time 	evening 	faculty2 and 	25 	part-time 	day 	faculty. 	Full-time
faculty are 	those 	persons 	hired 	to 	fill 	a vacant 	permanent 	position
and are either probationary 	(contract) 	or tenured 	(regular). 	Part-
time 	faculty 	are 	persons who 	teach 40 	percent 	or 	less 	of 	15 	equated
units.
While 	it would 	appear 	from a 	comparison 	of 	the District's
exhibits 	that 	at 	the 	time 	of 	the hearing none 	of the 	full-time 	faculty
was 	also 	employed as 	part-time 	faculty, 	there was 	testimony by
witnesses 	of both 	the 	District 	and 	the Association 	that 	full-time
faculty "moonlight" 	in the 	evening division. 	Furthermore, 	there 	is
1 (6/9/77) EERB Decision No. 	18.
2The evidence 	concerning 	the number 	of part-time 	instructors 	was
contradictory or at best 	incomplete. 	There was 	testimony that the, Dis-
trict 	employed 213 	part-time 	evening 	instructors 	and 	25 	part-time
day instructors. 	However, 	District Exhibits 	34 and 35, 	introduced
into 	evidence without 	objection 	as 	a 	compilation 	from District's
employment 	records 	of part-time 	evening 	instructors 	for 	the 	Fall
1976-77 	term, 	contain 166 names, 	exclusive of 10 persons 	listed
solely on District Exhibit 	35 	as 	employed at 	Fort Ord. 	We 	are
unable 	to 	determine 	on 	this 	record whether 	the 	discrepancy 	is 	the
result 	of 	a failure 	to 	include 	on the 	list 	of part-time 	instructors
those members 	of 	the 	full-time 	faculty who have 	assumed extra 	teach-
ing 	assignments 	or 	is 	caused by 	some 	other 	factor or 	error 	unknown
to us. -2-	-2-

a 	District 	policy 	which 	prohibits 	full-time 	faculty 	from 	teaching
more 	than 	one 	class 	for 	extra pay 	(as 	part-time 	faculty) 	in 	addition
to 	their 	regular 	teaching 	load. 	Full-time 	faculty who 	teach 	an 	extra
class 	are 	paid 	at 	a 	set 	percentage 	of 	their 	regular 	salary, 	whereas
persons 	only 	employed 	as 	part-time 	faculty 	are 	paid 	according 	to
their 	placement 	on 	the 	salary 	schedule.
Full-time 	faculty 	are 	paid 	according 	to 	both 	their 	educational
attainment 	and 	their 	length of 	service with 	the 	District. 	Part-time
faculty 	are 	paid 	only 	according 	to 	their 	educational 	attainment.
In order 	for 	the 	District 	to 	maintain 	its 	accreditation, 	all
classes must 	be 	taught 	by 	credentialed 	faculty. 	There 	are, 	however,
several 	kinds 	of 	credentials. 	Some 	part-time 	faculty have 	only 	a
"special" 	credential 	which 	allows 	that 	person 	to 	teach 	a 	specific
course 	for which no 	other person 	is 	available. 	M o s t , 	if not 	a l l ,
full-time 	faculty 	have 	either 	a 	community 	college 	or 	a 	general
secondary 	credential. 	All 	credit 	courses, 	whether 	taught by 	full-
or 	part-time 	faculty, may 	be 	used without 	distinction 	for 	degree
credit. 	While 	the 	procedure 	for 	requesting 	textbooks 	differs
between 	full- 	and part-time 	faculty, 	an 	effort 	is made 	to 	have 	the
same 	textbooks 	used by 	both. 	Full-time 	faculty who 	teach 	in 	the
evening 	division 	discuss 	course 	content with 	part-time 	faculty 	so
that 	the 	same 	subject material 	is 	covered 	in 	the 	courses.
There 	was 	uncontradicted 	testimony 	that 	only 	the 	full-time
faculty 	evaluate 	probationary 	employees, 	evaluate 	temporary 	employees,
serve 	on 	screening 	committees 	for new 	full-time 	employees, 	assist 	in
"planning 	future 	facilities," 	are 	employed under 	a written 	contract,
are 	"responsible 	for 	institutional 	equipment," 	are 	involved 	in 	the
formulation 	and 	implementation 	of 	the 	affirmative 	action 	program,
are 	required 	to 	attend 	commencement 	exercises, 	serve 	on 	accreditation
teams 	for 	other 	community 	colleges, 	serve 	on 	committees 	for 	"develop-
ing 	institutional 	self-study 	for 	accreditation 	purposes," 	supervise
work-study 	students, 	are 	responsible 	for 	record keeping 	of 	equipment
for 	replacement 	purposes, 	are 	eligible 	to 	serve 	as 	department
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chairpersons, 	are 	required to have 	the 	approval of the District's
governing board for 	leaves 	of absence, 	are 	eligible 	for membership
in the Academic 	Senate, 	are required to belong 	to 	the 	State Teachers
Retirement 	System, 	are 	evaluated pursuant 	to 	a procedure 	set 	forth
in the Education Code, 	are 	eligible 	for "additional professional
growth 	increments" 	of salary, 	may have 	a reduced teaching 	load
while 	still 	maintaining 	State Teacher Retirement 	System status,
and are 	eligible 	for 	tenure. 	Full-time 	faculty participate 	as
members 	of committees 	in 	the 	selection of 	classified employees;
they 	also 	evaluate 	classified employees. 	When 	department 	chair-
persons 	delegate 	evaluation of part-time 	faculty, 	it 	is 	only 	to
full-time 	faculty.
Other 	testimony revealed 	that 	full-time 	faculty 	are 	requested
to 	do a number of things 	that part-time faculty are not, 	including
participate 	in 	such activities 	as 	dances 	and athletic 	events 	and
give 	speeches 	in 	the 	community on 	subjects within 	their 	area of
expertise.
While 	there 	is no 	policy requiring 	it, 	full-time 	faculty are
expected by custom to have office hours. 	Part-time 	faculty do 	so 	at
their 	own 	initiative. 	Part-time 	faculty are not 	required 	to 	attend
departmental meetings 	but may do 	so 	if they choose. 	Both full-
and 	part-time 	faculty may 	and do 	develop new courses 	of 	instruction.
With respect 	to 	fringe benefits, 	only full-time 	faculty receive
sabbatical 	leave, 	paid holidays 	and health and welfare 	coverage.
Both full- 	and part-time faculty receive 	sick leave, 	but 	it 	is not
cumulative 	for 	part-timers.
Finally, 	full- 	and part-time 	faculty share 	essentially 	common
supervision. 	As will be 	discussed more 	fully later, 	department
chairpersons 	play 	a 	critical 	role 	in hiring both 	full- 	and part-
time 	faculty. 	Department 	chairpersons 	determine 	the 	class 	assignment,
schedule 	and 	location 	for 	full-time 	faculty and 	establish 	the 	part-
time 	schedule 	in 	consultation with 	the Associate Dean of 	the Evening
Division.
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II
As we 	stated 	in 	Peralta 	Community 	College 	District,3 reading
sections 	3545(a)4 and 3545(b)(l)5 of the Educational Employment
Relations Act 	(hereafter EERA)6 together 	establishes 	a rebuttable
presumption 	that 	all 	classroom teachers 	of 	a public 	school 	employer
shall 	be 	included 	in 	a 	single negotiating unit 	unless 	a 	single
negotiating unit 	is 	rendered 	inappropriate because 	of 	a 	lack 	of
community 	of 	interest between 	and among 	employees, 	the past
practices 	of 	the 	employees, 	or 	the 	effect 	of the 	size 	of 	the unit
on 	the 	efficient 	operation of 	the 	district.
In 	determining whether employees 	share 	a community 	of 	interest,
superficial 	distinctions 	should not be 	permitted 	to 	obfuscate
underlying 	common 	interests. 	We have 	consistently held, 	in 	accordance
with other 	jurisdictions,7 that 	such 	things 	as 	qualifications,
training and skills, 	job 	function, 	compensation, 	hours 	of work,
fringe benefits, work-related contact, 	supervision, 	integration of
3 (1978) 	PERB Decision No. 	77
4Gov. Code sec. 	3545(a) provides:
3545. 	(a) 	In each 	case where the appropriate-
ness 	of 	the unit 	is 	an issue, 	the board shall 	decide
the 	question 	on 	the basis 	of 	the 	community 	of 	interest
between 	and 	among 	the 	employees 	and 	their 	established
practices 	including, 	among other things, 	the extent
to which 	such 	employees 	belong 	to 	the 	same 	employee
organization, 	and the 	effect of the 	size 	of the unit
on 	the 	efficient 	operation of 	the 	school 	district.
5 Gov. 	Code sec. 	3545(b)(l) provides:
(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, 	except management employees,
supervisory employees, 	and confidential 	employees.
6 The Educational 	Employment 	Relations Act 	is 	codified at
Government 	Code 	section 	3540 	et 	seq. 	All 	statutory references
are 	to 	the 	Government 	Code 	unless 	otherwise 	specified.
7 Sweetwater Union High 	Schoo	. . . l District 	(11/23/76) 	EERB 	Decision
No. 	4; 	Kalamazoo Paper Box Corp. 	(1962) 	136 NLRB 134 	[49 LRRM 1715].
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work 	functions, 	and interchange between 	employees 	are 	relevant 	in
determining community of interest. 	Where, 	as 	in the 	case of this
District, 	some 	factors 	point 	to 	a 	separate 	community of 	interest
between 	full- 	and part-time 	faculty 	and some 	to 	a 	common 	community
of interest, 	no 	single factor is 	controlling. 	Rather, 	all 	factors
must 	be 	weighed 	and balanced 	in 	their 	totality.8
The 	record before 	us 	establishes 	that 	full- 	and part-time
faculty share 	common qualifications, 	training and skills, 	job 	func-
tions, 	and integration of work 	function. 	Although 	in special
circumstances 	the 	credential 	requirements 	may be 	less 	stringent
for part-time 	faculty, 	no 	distinction 	is made between 	courses 	taught
by 	full-time 	faculty 	and 	those 	taught by part-time 	faculty; 	students
receive 	the 	same 	credit 	for both. 	Both 	full- 	and part-time 	faculty
participate 	in 	the 	initiation 	and 	development 	of new 	classes.
Division 	chairpersons 	play 	a 	central 	role 	in 	the 	hire 	and retention
of both.
While 	there 	are 	some 	distinctions 	between 	full- 	and part-time
faculty, 	their common 	characteristics 	are more persuasive. 	In
Los 	Rios 	Community College, 	the 	first 	case 	involving 	certificated
employees 	at 	the 	community 	colleges 	decided by the 	Board, 	it was
concluded 	that 	only 	those 	part-time 	employees 	who had 	taught 	three
of 	the 	last 	six 	semesters 	inclusive 	should be 	included in 	the negotiat-
ing 	unit. 	We 	have 	adhered 	to 	this 	policy 	in 	all 	subsequent 	decisions.10
In 	the 	instant 	case, 	the 	record establishes 	that 	as 	of the 	date of
the hearing, 	37 	of 	the 	166 part-time 	faculty were 	in 	their 	first
semester of employment with 	the District, 	112 had been previously
employed one 	or more 	continuous 	semesters, 	80 had been employed two
or more 	continuous 	semesters 	and 55 	had been 	employed 	three 	or more
continuous 	semesters. 	There 	is no 	evidence 	that 	either the 	duties
or 	terms 	and 	conditions 	of employment 	of part-time 	faculty 	are
8Office of 	the 	Santa Clara 	County 	Superintendent 	of Schools
(7/19/78) 	PERB Decision No. 	59.
9 (6/9/77) EERB Decision No. 	18, 	supra.
10 Shasta-Tehama-Trinity 	Joint 	Community 	College 	District 	(9/22/77)
EERB Decisio	10 _____	n No. 	31; 	Sa	::-:::::::::::::::::::::::::::::::::::::::-=-=-=-=-=-=-=-=-	n Joaquin Delta Community College District
(5/12/77) 	EERB Decision No. 	HO-R-5; 	Riverside Community College"
District 	(5/9/78) 	PERB Decision No. 	HO-R-66.
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affected 	in 	any material way by 	the 	length 	of 	their 	employment with
the District. 	Thus, 	the 	community of interest with 	full-time
faculty 	of 	part-time 	faculty who 	teach 	less 	than 	three 	of 	the 	last
six 	semesters 	and 	those who 	teach 	three 	or more 	of 	the 	last 	six
semesters 	is 	identical. 	Accordingly, 	there 	is no basis 	for excluding
part-time 	faculty who 	teach 	less 	than 	three 	of 	the 	last 	six semesters
from the negotiating unit. 	In fact, 	upon reflection 	such 	a distinc-
tion 	is 	potentially 	disruptive 	of 	the 	very 	stability 	and harmony 	in
employer-employee 	relations which 	the EERA, seeks 	to promote 	through
the 	collective negotiations 	process. 	We 	therefore 	conclude 	that
the 	unit 	appropriate 	for negotiations 	includes 	all 	full- 	and part-
time 	faculty. 	To 	the 	extent 	that Los Rios 	and its 	progeny 	are
inconsistent with 	this 	decision, 	they are 	expressly overruled.11	11
Department 	Chairpersons
The District 	contends 	that 	department 	chairpersons 	are managerial
employees within 	the meaning of 	section 3540.l(g) 	while 	the Associa-
tion 	contends 	that 	they are 	employees 	and 	should be 	included 	in 	the
negotiating unit. 	Both 	the District 	and 	the Association 	stipulated
at 	the hearing 	that 	department 	chairpersons 	are not 	supervisors within
the meaning of 	section 3540.l(m). 	The hearing officer adopted that
stipulation without 	inquiry, 	found that 	they were not management
employees, 	and included them in the negotiating unit. 	The
District 	has 	filed exceptions 	to 	that 	conclusion.
11	11 While 	our 	dissenting 	colleague 	is 	apparently 	of 	the 	opinion
that Los Rios Community College, 	supra, 	is 	a "precedential"
decision 	that may not be modified or 	disapproved 	in 	light 	of new
information or experience, 	our understanding 	of precedent 	differs
from his. 	Reverence 	for precedent 	is misplaced when 	it 	constrains
the Board to remain faithful 	to 	decisions, 	which, 	upon reconsidera-
tion, bear improving.
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I
It would 	appear 	that 	the hearing 	officer, 	in 	accepting 	the
stipulation of 	the 	parties 	that 	department 	chairpersons 	are not
supervisors, 	was 	relying on 	the 	Board's 	early policy of accepting
the 	stipulations 	of 	the parties without 	question 	so 	long 	as 	such
stipulations 	were not 	"inconsistent with 	the 	clear 	and 	specific
mandate 	in 	the 	unit 	criteria provisions" of 	the 	EERA.12 To 	the
extent 	that 	this 	policy 	authorized 	the 	acceptance 	of 	stipulations
of 	the 	parties 	as 	to 	the 	ultimate 	conclusion 	of 	law before 	the
Board, 	it 	is 	expressly overruled.
The 	instant 	case presents 	a 	classic example 	of 	the 	danger 	in
such 	a policy. 	The 	issue before 	the 	Board is 	the 	determination of
appropriate 	unit, 	including 	the 	question of whether 	department
chairpersons 	are 	appropriately 	included. 	While 	it 	is 	true 	that 	if
department 	chairpersons 	are 	found 	to 	be 	either 	supervisory 	or
managerial 	they would be 	excluded 	from 	the 	negotiating 	unit 	in
question, 	nonetheless 	the 	difference between 	the basis 	for 	their
exclusion 	is 	critical. 	Supervisors 	are 	accorded negotiating rights
under 	the 	EERA, 	while managerial 	employees 	are 	denied those 	rights.
Since 	the 	record 	in 	this 	case 	clearly establishes 	that 	depart-
ment 	chairpersons 	are 	supervisors, 	were we 	to 	accept 	the 	stipulation
of 	the parties 	in 	this 	regard, 	we would be 	in the 	anomalous 	position
of making 	a 	decision 	contrary 	to 	the 	express 	language 	of 	the EERA.
If we 	concluded 	that 	chairpersons were managerial, 	we would be
denying 	employees 	negotiating rights 	granted 	them by 	the EERA.
Conversely, 	if we 	concluded that 	chairpersons were not managerial,
12	12Tamalpais 	Union High 	School 	District 	(7/20/76) 	EERB Decision
No. 1.
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we would be placing 	supervisors 	in 	the 	same negotiating unit 	as
rank-and-file 	employees. 	Such 	a result 	is 	contrary 	to both 	common
sense 	and 	the 	express 	responsibility of 	the 	Board. 	The 	status 	of
the 	chairpersons 	is 	a question of 	law and fact requiring 	legal
conclusions 	to 	be 	drawn 	from the 	facts 	adduced at 	the hearing.
The 	rendering of 	the 	ultimate 	legal 	conclusion is 	the prerogative
of the 	Board, 	not 	the parties.13 Accordingly, 	we have 	examined 	the
facts 	of 	this 	case 	and 	conclude 	that 	department 	chairpersons 	are not
managerial 	employees, 	nor 	do 	they 	share 	a 	community of interest with
other unit 	employees, 	but 	rather are 	supervisory 	employees within
the meaning of section 3540.l(m).
II
There 	are 	11 	department 	chairpersons 	in dispute. 	Eight of the
chairpersons 	teach 	80 	percent 	of a 	full-time 	load,14 one 	teaches
70 percent of a full-time 	load 15	15' 	and two have no 	teaching responsi-
bilities.16	16 They 	are 	selected by 	recommendation 	from the 	department
faculty 	to 	the 	dean of 	instruction. 	The 	dean makes 	a 	recommendation
to 	the 	superintendent, 	who 	in turn makes 	a recommendation to 	the
Board of Trustees. 	The present 	dean of 	instruction has 	never 	rejected
13
See Leonard v. 	City of Los Angeles 	(1973) 	31 Cal.App.3d
473, 	476; 	Smith Alarm Systems 	(1974) 	214 NLRB 501, 	enfd. 	(5th
Cir. 	1975) 	524 F.2d 983 	[91 LRRM 2057]; 	and Willett Motor Coach
Co. 	(1977) 	227 NLRB 882.
14 Business, Fine Arts, Health/PE/Recreation, Language Arts,
Mathematics, 	Social Science, Technology, Director of Athletics.
15 Natural 	Science.
16	16 Director 	of Nursing 	and Director 	of Learning Resource
Center.
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14
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the 	faculty recommendation, 	nor have 	the 	superintendent or 	the Board
of Trustees 	rejected the 	dean's 	recommendation. 	All 	chairpersons
are 	tenured and on 	the same 	tenure 	track as 	regular 	faculty. 	Chair-
persons work 	longer 	than 	the academic 	year; 	how much 	longer varies
from department 	to 	department. 	They are paid five percent 	of 	their
contract 	salary 	for 	each 	two weeks worked beyond 	the academic 	year.
Chairpersons 	are 	prohibited 	from being members 	of 	the Academic
Senate. 	There 	is 	a 	chairperson meeting on Friday of each week,
also 	attended by 	the 	associate 	and assistant 	deans 	of 	instruction.
Chairpersons 	play a pivotal 	role 	in the hiring of 	full- 	and
part-time 	faculty, 	student 	assistants 	and 	laboratory assistants.
Chairpersons 	are responsible 	for 	the recruitment of 	full- 	and
part-time 	faculty. 	They prepare 	all 	job 	descriptions 	and 	determine
what credentials 	are 	required.
Recommendations 	for hire 	of full-time 	faculty 	are made by a
screening 	committee 	to 	the 	dean of 	instruction. 	Testimony was
unclear 	on whether 	chairpersons 	appoint 	the 	eight 	person 	screening
committee 	or whether 	five 	are 	appointed by 	the 	academic 	senate 	and
three, 	including the chairperson, 	are administration representatives.
The 	screening 	committee 	interviews 	job 	applicants 	and 	determines,
by majority vote 	of 	the 	committee, 	which 	applicant 	to 	recommend.
The 	dean may 	and has 	asked 	the 	chairperson 	for 	a personal 	recommenda-
tion 	in 	addition 	to 	that 	of the 	screening 	committee. 	The present
dean of 	instruction has 	followed 	the 	recommendation 	of 	the 	chair-
person 	in 	all but 	one or 	two 	circumstances. 	One 	department 	chairperson,
the 	only witness who 	testified on 	this 	point, 	testified 	that his
recommendations 	have 	always 	been 	the 	same 	as 	those 	of 	the 	screening
committee.
The 	chairperson may be 	the 	only one who 	interviews 	part-time
faculty applicants. 	The 	dean of the 	evening 	division must have 	the
chairperson's 	approval before 	hiring a part-time 	faculty member.
Chairpersons 	have 	complete 	control 	over 	the 	selection of 	student
assistants 	and 	determine 	to which faculty member 	they are 	assigned
They 	also 	select 	and obtain 	substitute 	faculty when a 	regular 	faculty
member 	is 	ill 	and "secure clerical help."
-10-

Proposals 	for new courses 	of 	instruction must 	be 	approved by
the 	chairperson before 	they are 	submitted 	to 	the 	curriculum committee;
no 	proposal 	for 	a 	course offered through 	the 	department will 	be
submitted without 	the 	chairperson's 	approval. 	Approval 	of chairpersons
is 	not 	required 	for 	courses 	offered 	through 	the 	community 	services
division. 	The 	chairperson recommends 	a new course 	to 	the 	dean of
instruction, 	who 	sends 	it 	to 	the curriculum committee. 	The curriculum
committee 	is 	composed of 17 	people: 	one representative, 	usually the
the chairperson, 	of each department, 	the administration, 	student body
and academic 	senate. 	Department representatives 	are 	selected by 	the
department 	faculty. 	If the 	curriculum committee 	agrees 	that 	the
proposed new course 	should be offered, 	the 	dean 	submits 	the 	recommenda-
tion to 	the Board of 	trustees. 	The Board of Trustees 	have never
rejected a 	course 	recommended by 	the 	curriculum committee. 	If 	the
curriculum committee rejects 	the proposed course, 	the 	department
chairperson has 	no 	recourse. 	A new course may be 	offered 	twice
without 	the 	approval 	of 	the 	curriculum committee 	at 	the 	discretion
of 	the 	chairperson. 	However, 	it must be reviewed after 	each offering.
The 	chairperson, 	without 	independent review by 	the 	dean, 	may authorize
special study 	courses. 	The chairperson decides which courses 	are 	to
be cancelled and when, 	based on enrollment, 	any given course 	is 	to
be offered. 	Chairpersons 	are 	solely responsible 	for 	the 	assignment
of classes; 	they determine who 	teaches what class, 	at what 	time and
where. 	The chairperson must 	approve all 	textbook requests but 	it 	is
highly unusual 	for 	a 	chairperson 	to 	deny a 	textbook request. 	Chair-
persons 	are 	also 	responsible 	for 	supervising 	evening 	courses 	and
faculty. 	The 	evening 	course 	schedule 	is 	set by the 	chairperson and
the 	associate 	dean of 	the 	evening 	division.
Departmental budgets 	generally contain 15 or 	16 accounts, 	such
as teacher salaries, 	classified salaries, 	student help, 	equipment
replacement, 	supplies, 	field trips and conferences. 	Chairpersons
submit 	draft budget 	requests 	to 	the 	dean of 	instruction. 	Individual
faculty members may 	submit 	requests 	for 	additional 	supplies 	and
capital 	equipment. 	The chairperson does not 	evaluate 	the necessity
-11-

for 	the requested material; 	the 	faculty member's 	professional 	judg-
ment 	is 	accepted. 	The 	dean of 	instruction reviews 	the budget
requests 	and modifies 	them. 	The 	extent 	and frequency of modifica-
tion varies 	from department 	to 	department. 	Salaries 	comprise 	the
largest percentage of 	each department's 	budget. 	Chairpersons 	have
no 	authority over 	faculty 	salaries; 	their 	control 	over 	classified
salaries 	is 	limited 	to 	expanding 	and 	contracting 	the number 	of
persons 	employed. 	Chairpersons 	frequently request 	budget 	changes
in mid-year. 	The Board of Trustees 	generally grants 	these requests,
if they are not exorbitant.
The 	chairperson's 	approval 	is 	required for all 	supply, 	equip-
ment, 	conference attendance and leave of absence requests. 	The
chairperson's review of faculty requests, 	however, 	is pro forma.
There 	is 	a District 	policy with respect 	to 	leaves 	of 	absence 	to
which 	the 	chairperson must 	conform; 	the rule 	is 	that 	the 	requested
leave 	generally 	should be 	granted. 	The 	chairperson's 	approval 	of
requests 	for 	sabbatical 	leave is 	required; 	however, 	the 	dean of
instruction 	testified 	that 	he knew of no 	instance where 	a 	chair-
person had 	rejected 	such 	a 	request.
While 	chairpersons 	conduct 	classroom observation, 	evaluation
of 	full-time faculty 	is 	done by committee. 	The members 	of 	the 	committee
must 	be mutually 	agreeable 	to 	the 	chairperson 	and 	the 	faculty member
to be 	evaluated. 	Each member of 	the committee has 	an 	equal 	voice
in the 	evaluation; 	the consensus 	of the committee 	is 	summarized by
the 	chairperson 	and given 	to 	the 	dean of 	instruction. 	Although rarely,
the 	dean has 	overturned the committee's 	recommendation. 	Chairpersons
discipline 	recalcitrant 	faculty 	by withholding 	conference 	approval
and 	class 	assignments. 	The 	chairperson delegates 	the 	evaluation of
part-time 	faculty 	to 	a regular 	faculty member with 	expertise 	in 	the
particular 	subject 	field.
Finally, 	chairpersons 	hold department meetings 	at 	least once
a month 	in which new courses 	are 	discussed 	and 	faculty 	comments 	and
criticism are 	solicited.
-12-

III
The District 	contends 	that 	department 	chairpersons 	are manage-
ment 	employees 	because 	the District 	"...looks 	to 	chairpersons 	and
holds 	them 	directly 	responsible 	for 	administration 	of DISTRICT
programs 	and 	also 	for 	suggestions 	in 	formation of DISTRICT 	policy."
We 	cannot 	agree 	that 	chairpersons 	possess 	the 	type 	of responsibility
contemplated by 	the 	legislature when 	it 	defined management 	employees
as 	those 	"having 	significant 	responsibilities" 	on behalf 	of 	the
District. 1 7
The 	Board has 	previously 	concluded 	that 	a 	"management 	employee"
within 	the meaning 	of 	section 	3540.1(g) 	of 	the EERA must 	possess
significant 	responsibilities 	both 	for 	the 	formulation 	of 	district
18
policy 	and 	the 	administration 	of 	district 	programs.18 The 	formula-
tion 	of policy 	contemplates 	the 	exercise 	of 	discretionary 	authority
to 	develop 	and modify 	institutional 	goals 	and priorities. 	The
administration 	of 	programs 	contemplates 	effective 	implementation
of 	the policy 	through 	the 	exercise of independent judgment. 	Thus,
managerial 	status 	contemplates 	those persons 	who have 	discretion
in 	the 	performance 	of 	their jobs 	beyond 	that which must 	conform
to 	an employer's 	established policy. 	The 	question 	as 	to whether
particular 	employees 	are managerial must 	be 	answered 	in 	terms 	of
the employees' 	actual job 	responsibilities, 	authority and relation-
ship 	to 	the 	employer. 	Managerial 	status 	is not necessarily 	conferred
upon 	employees 	because 	they possess 	some 	limited authority 	to
determine, within established limits, 	curriculum, 	course 	content
or budgetary 	allocations.
17LT
Gov. Code sec. 	3540.l(g) 	states:
"management 	employee" means 	any employee 	in a position
having 	significant 	responsibilities 	for 	formulating
district 	policies 	or 	administering 	district 	programs.
Management positions 	shall 	be 	designated by 	the public
school 	employer 	subject 	to 	review by 	the 	Educational
Employment 	Relations 	Board.
LU 18Lompoc Unified School District (3/17/77) EERB Decision No. 13;
Oakland Unified School District 	(3/28777) 	EERB Decision No. 	15.
-13-
nT

In the 	instant 	case, 	the 	evidence 	established that 	the 	authority
of 	the 	chairpersons was 	either 	collegial 	in nature 	and no 	greater
or 	lesser 	than 	that 	of other persons 	serving 	on various 	committees,
or 	substantially 	determined by 	established District 	policy. 	Those
areas 	in which 	chairpersons 	act 	autonomously 	concern matters which
provide 	the 	indicia of supervisory 	status.
Thus, 	chairpersons may recommend new courses, 	but 	their recom-
mendations 	are 	subject 	to 	the 	approval 	of 	the 	curriculum committee.
Their 	discretion 	to 	independently 	authorize 	courses 	is 	limited 	to
a specified 	length 	of 	time. 	Their 	fiscal 	responsibilities 	do not
require 	the exercise of discretion; 	rather, 	they generally 	involve
pro 	forma 	approval 	of 	faculty 	requests.
Conversely, 	chairpersons 	independently schedule both full-
and part-time 	faculty 	class 	assignments, 	effectively 	determine who
shall be hired to 	fill 	a part-time position, 	and discipline 	faculty
members. 	This authority is that of supervisory employees.19
CT
Accordingly, 	we 	find 	that 	department 	chairpersons 	are not
management 	employees 	but 	are 	supervisory 	employees 	within 	the
meaning 	of 	the 	EERA.
ORDER
On 	the 	foregoing 	decision 	and 	the 	entire 	record 	in 	this 	case,
the 	Public 	Employment 	Relations 	Board ORDERS 	that:
(1) 	The 	unit 	appropriate 	for negotiating 	shall 	include 	all
full-time 	regular 	and 	contract 	certificated 	employees 	and 	all 	part-
time 	employees 	and shall 	exclude 	all 	department 	chairpersons,
management, 	supervisory and 	confidential 	employees.
6T	61
Gov. Code sec. 	3540.l(m) 	states:
"Supervisory 	employee" means 	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 	fore-
going 	functions, 	the 	exercise of such authority
is 	not 	of a merely routine 	or 	clerical nature,
but 	requires 	the 	use 	of 	independent 	judgment.
-14-
£T

(2) Department chairpersons are supervisory employees.
Within 10 workdays after the employer posts the Notice of
Decision, the employee organization shall demonstrate to the regional
director at least 30 percent support in the negotiating unit.
The regional director shall conduct an election at the
end of the posting period if :
(1) More than one employee organization qualifies for the
ballot, or
(2) If only one employee organization qualifies for the
ballot and the employer does not grant voluntary recognition.
Voluntary recognition requires majority proof of support in all
cases. 	See Government Code section 3544 and 3544.1. The date
used to establish the number of employees in the above units
shall be the date of this decision unless another date is deemed
appropriate by the regional director and noticed to the "patties".
In the event another date is selected, the regional director may
extend the time for employee organizations to demonstrate at
least 30 percent support in the negotiating unit.
Jerilou Cossack Twohey, Member 	Harry Gluck, Chairperson
Raymond J. Gonzales, Member, dissenting in part:
This may appear to be a rather strange dissent; strange in that
I have included my original dissent signed November 16, 1978, which
is no longer valid since the majority, as a result of that dissent,
has re-drafted its original signed decision of October 18, 1978.
I include the first dissent here to give a chronology of events that
have led up to this "final" decision which, may, of course, be
changed again by the majority after they read my second dissent.
-15-
(2) 	Department 	chairpersons 	are 	supervisory 	empl o yees.
Within 	10 workdays 	after 	the 	employer posts 	the 	No tice 	o f
Decision , 	the 	employee 	organization 	shall 	demonstrate 	to 	the 	regi o nal
director 	at 	least 	3 0 	percent 	supp o rt 	in 	the 	neg o tiating unit.
The 	regional 	director shall 	conduct 	an 	election at 	the
end of 	the 	posting period 	if 	:
(1) 	More 	than one 	employee 	organization qualifies 	for 	the
ballot, 	or
(2) 	If 	only one 	employee 	organization 	qualifies 	for 	the
ballot 	and 	the 	employer 	does 	not 	grant 	voluntary 	recognition.
Voluntary 	recognition 	requires 	majority proof 	of 	support 	in 	all
cases . 	See 	Government 	Code 	section 	3544 	and 	3544.1 . 	The 	date
used 	to 	establish 	the 	number 	of 	employees 	in 	the 	above 	units
shall 	be 	the 	date 	of 	this 	decision unless 	another 	date 	is 	deemed
appropriate 	by 	the 	regional 	director 	and noti~~d 	to 	the "pattj..e_s i•
In 	the 	event 	another 	date 	is 	selected, 	the 	regional 	director may
extend 	the 	time 	for 	employee 	organizations 	to 	demonstrate 	at
least 	30 	percent 	support 	in 	the 	negotiating unit .
.. 	._
I 	I
I J e ril o u 	Cossack 	Twohey, 	Member 	Harry 	Gluck, 	Chairperson
Raymond J. 	Gonzales, 	Member, 	dissenting 	in part :
This 	may appear 	to be 	a 	rather 	strange 	dissent ; 	strange 	in 	that
I 	have 	included my original 	dissent 	signed November 	16, 	1978, 	which
is no 	longer valid 	since 	the majority, 	as 	a 	result 	of 	that 	dissent,
has 	re-drafted 	its 	original 	signed 	decision of 	October 	18, 	1978 .
I 	include 	the 	first 	dissent 	here 	to 	give 	a 	chronology of 	events 	that
have 	led up 	to 	this 	" final" 	decision which, 	may, 	of 	course , 	be
changed 	again 	by 	the 	majority 	after 	they 	read my 	second 	dissent.
- I 5-

The Hartnell 	case was 	originally 	decided by 	the 	Board 	in
Executive 	Session on May 	11, 	1978, 	nine months 	after the 	case was
placed on 	the Board's 	docket. 	Members 	Gluck and Cossack Twohey
were 	in the majority 	in 	the 	case, 	while 	I 	dissented 	for 	the reasons
expressed 	in my Los Rios 	Community College 	dissent. 	The 	case was
assigned 	to Member 	Cossack Twohey, 	who was 	to write an affirmance,
with minor modifications, 	of the hearing officer's 	decision.
Six months 	later, 	when 	the 	14-page majority 	draft 	appeared,
however, 	it 	included a major modification of 	the hearing officer's
decision. 	The 	Board decision rejected 	the Los 	Rios 	formula 	of
placing 	in 	the 	unit part-time 	teachers who 	had 	taught 	three 	semesters
in the 	last 	six semesters. 	Instead, 	as 	I 	discussed in my attached
first 	dissent, 	the majority 	included all part-time 	teachers 	in 	the
unit 	of 	certificated 	employees 	but 	gave 	voting rights 	only 	to 	those
part-time 	teachers who 	fitted the Los 	Rios 	formula 	for 	inclusion 	in
the unit.
Within 	the 	allotted 	ten 	day period of 	time 	for minority
decisions, 	I 	submitted my dissenting view attacking 	the majority's
formula for 	inclusion 	in the 	unit 	and 	the basic 	denial 	of voting
rights 	to members of the unit 	(see attached dissent). 	Thereupon
the majority withdrew its 	first 	signed opinion 	and 	spent 	another
five weeks preparing a 	second, 	even more ludicrous, 	majority opinion
to which 	I now dissent. 	I would not 	at all be surprised if the
majority now makes 	a 	third 	attempt 	at 	drafting 	a majority opinion 	in
-16-

the Hartnell 	case, 	if for no 	other reason 	than 	to vent 	their
displeasure with my approach to 	this 	case.1
So now we 	are at January 2, 	1979, 	the 	date of my 	second dissent
in response 	to 	the majority's 	second signed opinion. 	I 	give 	this
chronology 	to 	inform the 	parties why 	there 	appear 	to be 	frequent
delays 	in 	the 	issuance of Board decisions. 	In the 	Board's 	early
days, 	the backlog of cases was 	a result of the fact 	that many cases
hit 	the 	Board 	docket 	at 	approximately 	the 	same 	time 	due 	to 	the
newness 	of the EERA. 	Now the backlog is more 	a result, 	in my opinion,
of 	the 	judicial 	frivolity 	that 	this 	Board appears 	to be 	engaged in.
In an effort not 	to hold this 	case up 	any further, 	I will 	comment
only briefly 	on 	the majority's 	second 	signed opinion 	and 	include my
first 	dissent 	for 	the 	curious 	reader's 	enlightenment.
In 	the 	latest 	chapter of Hartnell, 	the majority has 	scrapped all
formulas 	for 	inclusion of 	some 	part-timers 	in 	the 	unit 	of 	certificated
employees, 	as 	in Los 	Rios, 	and has 	eliminated any formula for voting
requirements, 	as 	in their 	first 	signed opinion in this 	case. 	Now
every part-time 	teacher 	in 	the District 	is 	to be placed 	in 	the unit
of certificated employees 	and given the right 	to 	vote. 	As 	the
majority points 	out, 	there are 	approximately 	113 	full-time 	faculty
1 I 	have 	always 	opposed 	the 	continued 	exchange 	of majority 	and
minority opinions 	by 	the 	Board members 	because 	I 	have 	felt 	that 	they
served no 	real 	purpose other 	than 	to 	delay 	the 	issuance 	of an opinion
to the parties. 	In this case, 	for example, 	it has been two years,
eight months 	since 	the Association 	filed 	its 	first petition. 	My
colleagues, 	however, 	as 	in Peralta and other cases, 	seem to 	feel 	that
the 	majority 	should have 	the 	last word regardless 	of how 	long 	it 	takes
to 	issue a decision.
-17-
1
1

members, 	166 part-time 	evening faculty, 	and 25 part-time day 	faculty
members 	in 	the Hartnell 	District. 	That means 	there 	are more 	than
half again 	as 	many part-time 	faculty members 	as 	there 	are 	full-time
faculty members. 	Even the 	full-time 	faculty members 	of Hartnell,
Los Rios, 	and other 	community college 	districts 	in the 	state may
begin 	to have 	serious misgivings 	over a decision which 	is 	likely 	to
give 	control 	of 	the 	certificated unit 	to 	the 	part-time 	faculty of
any 	given 	district. 	Regular 	certificated 	employees will 	be hindered
in 	successfully negotiating a 	contract with their 	employers, 	since
they have 	little 	in common with 	the part-timers who now make 	up 	the
majority 	of 	the 	units. 	And given 	the Board's 	current position on
stipulated units, 	full-time 	teachers have no 	choice but 	to be
represented with 	part-time 	teachers.
This 	apparently 	does not bother 	the majority 	in 	this 	case 	for
it has 	rejected 	the 	option of allowing 	a 	separate unit 	of part-time
instructors 	as well 	as 	the 	option of 	declaring 	that 	some 	part-time
faculty who 	cannot 	demonstrate 	"an 	expectation of 	continued 	employ-
ment" 	could be excluded from the unit as 	casual 	employees. 	I
continue 	to believe 	that 	part-time 	teachers 	should not be 	included
in a unit with full-time 	faculty members, 	for the reasons 	stated in
my dissent 	in Los 	Rios.
In addition, 	I would note, 	as 	I 	suggested in my dissent 	in
Peralta and Pittsburg, 	that 	a majority of 	this 	Board has 	no 	intention
of 	ever 	leaving any 	school 	employees 	outside 	of a unit. 	Even the
2 ee my dissent in Los Rios, 	p. 	40.	S
-18-

"esteemed" NLRB 	excludes 	from a unit 	some 	"casual" 	employees who
do not work regularly. 	Yet 	the majority of 	this 	Board has 	included
noon-duty 	supervisors 	and will 	probably 	include 	day-to-day 	substi-
tutes, 	even those who 	teach only one day in the year. 	While 	I
would agree 	that 	employees whose primary place 	of 	employment 	is
with 	a particular 	school 	district 	should have 	the right 	to 	choose
an 	employee 	organization 	to 	represent 	them in negotiations 	with 	the
employer, 	I 	can never 	condone 	the 	inclusion in 	these units 	of every
individual who merely passes 	through 	the 	institution on his/her way
to work some place 	else. 	As 	I 	suggested in my original Los 	Rios
dissent, 	public 	employees 	in this 	situation will be 	given two bites
at the taxpayers' 	apple.
Regarding the 	issue of precedential Board decisions, 	I 	take
personal 	exception 	to 	the majority's 	self-serving comment 	in 	footnote
number 	11 	in 	their 	second Hartnell 	opinion 	in which 	they 	state,
"While 	our 	dissenting 	colleague 	is 	apparently of 	the 	opinion 	that
Los 	Rios 	Community College, 	supra is 	a "precedential" decision that
may not be modified or 	disapproved 	in 	light 	of new 	information or
experience, 	our understanding of precedent 	differs 	from his." 	I
am especially offended by 	the majority's 	comment 	in reference 	to
"new 	information or experience" 	as 	being 	the motivating 	factor 	for
changing 	their Los 	Rios 	decision and 	the 	first 	draft of Hartnell.
Their 	second majority opinion 	in Hartnell 	does 	nothing 	to 	amplify
on any 	"new information or 	experience"; 	rather what 	the majority
does 	is 	cover up what was 	initially a weak argument by presenting
to 	the parties 	an even more 	absurd solution
In this 	case, 	the Board almost 	casually overrules Los 	Rios 	and
its 	"progeny." 	Contrary 	to 	the majority's 	apparent belief expressed
-19-

in footnote 11, 	I acknowledge that previous Board decisions should
not bind the Board forever. 	I nevertheless think that a decision
to overturn a Board ruling should not be made lightly. 	The value
of precedent is 	too high—it enables Board agents to obtain settle-
ments on Board decisions; 	it speeds the litigation process by
eliminating the need to relitigate every issue; 	and it increases
respect for the Board as 	the purveyor of opinions based on law
rather than on the current make-up of the Board. 	The present
chairperson recognized the 	importance of precedent in his 	initial
comments upon taking office at the Board's public meeting on
March 7, 1978:
There has been some concern that as a new man
maybe I will tear things apart. 	Well, 	assuming
that as an individual Board member I had that
power, 	I assure you that is not why I'm here.
I believe in stability in employee relations,
and I believe, 	in a sense, 	that the Board must
set that example by consistency in its decision-
making and its 	rule-making. 	I'm certainly not
here to uproot the past in any sense of the word.
Despite this, 	virtually every precedential case of any signifi-
cance has been overturned by a new majority. C
These changes have
occurred as a result of a change in the membership of the Board.
Additional changes may occur in January 1979, December 1980, and
December 1981, 	resulting in a further re-working of Board precedent.
3 See, 	e.g., 	Sierra Sands Unified School District 	(10/14/76)
EERB Decision No. 	2, 	by Campbell Union High School District (8/17/78)
PERB Decision No. 	66; 	Sweetwater Union High School District 	(11/23/76)
EERB Decision No. 	4, by Washington Unified School District(6/27/78)
PERB Decision No. 	56; Belmont Elementary School District (12/30/76)
EERB Decision No. 	7, by Peralta Community College District (11/17/78)
PERB Decision No. 	77; Los Rios Community College District (6/9/77)
EERB Decision No. 	18, 	by Hartnell Community College District 	(1/2/79 )
PERB Decision No. 8.1.
-20-

When a Board decision is 	to be overruled, 	the reasons 	for
doing 	so 	should be very persuasive 	and 	clearly articulated. 	In
the present case, 	the majority intimated, 	in footnote 11, 	that it
would 	change 	a 	decision 	in 	light 	of 	"new information 	or 	experience."
Yet 	the 	rationale 	in 	the 	second majority 	decision 	does 	not rely on
any "new information or experience." 	No new facts 	or 	changes 	in
circumstances 	are put 	forth by 	the majority 	to 	justify 	their
departure 	from the Los Rios 	formulation. 	In fact, 	the record 	in
Hartnell was made at 	approximately 	the 	same 	time as 	the record 	in
Los Rios.4
The 	obligation of the majority 	to have 	strong reasons 	for over-
turning Los 	Rios 	is, 	if anything, 	increased by the history of 	that
case before 	the 	Board. 	As noted 	in my first 	dissent, 	the Board
itself 	specifically voted unanimously 	in 	a 	public meeting 	to 	retain
jurisdiction over 	Los 	Rios, 	while 	remanding other cases 	for hearing
officer decisions, 	on the 	grounds 	that 	it would be 	desirable 	for
the 	Board 	itself 	to 	establish a precedential 	case 	for 	the 	purpose
of 	guiding 	our hearing 	officers 	in 	dealing with 	community 	college
part-time 	faculty 	issues. 5UT Thus, 	Los 	Rios was 	decided with the
specific 	intention 	that 	it would 	guide 	future 	certificated unit
determination decisions. 	Presumably, 	much 	thought went 	into 	that
decision. 	Yet 	the majority has 	overruled 	it with very little
discussion.
44 The hearings 	in Los 	Rios were completed on September 	17, 	1976
and in Hartnell on September 	22, 	1976.
55Original Hartnell dissent 	(attached), pp. 	15-16.
-21-

To 	overturn 	such a 	decision without 	a very 	strong rationale
works 	basically 	to 	nullify 	the 	concept 	of precedential 	cases
established by 	the 	Board. 	Board agents will 	now find 	it 	difficult
to obtain 	informal 	agreements based on Board decisions; 	why should
a 	disadvantaged party 	settle when 	the 	chances 	are 	good 	that 	the
Board may 	change 	its 	opinion? 	Parties will 	appeal more hearing
officer 	decisions 	for 	the precedent 	guiding 	the hearing officers'
decisions 	may change. 	Stability in educational 	labor relations,
extolled by 	the Board's 	chairperson, 	has 	been undermined by 	the
overruling of 	a 	landmark 	case without 	carefully weighing 	the 	reasons
for doing 	so 	against 	the powerful 	considerations 	for not 	overturning
past decisions. 	I 	do not 	think that 	the Board has 	sufficiently
strong reasons 	for overruling Los Rios. 	There 	is no 	question 	in my
mind 	that 	that 	case 	"bears 	improving," 	since 	I 	dissented 	from the
majority decision. 	At 	least 	in that decision, 	however, 	the majority
made 	some 	effort 	to 	limit 	the number of part-time 	employees 	included
in 	the 	overall 	unit 	in acknowledgment 	that 	some 	part-time 	teachers
have 	a 	greater 	connection with 	the 	colleges 	and 	the 	faculty 	than
others. 	In the present 	decision, 	this 	distinction is 	thrown out 	the
window because 	it 	is 	"potentially disruptive." 	Needless 	to say, 	the
majority has 	no 	evidence 	from the 	districts which have 	followed Los
Rios 	that 	any disruption 	in 	employment relations 	has 	occurred. 	And,
in fact, 	the majority was willing in its 	first 	signed opinion 	to
tolerate 	the 	greater potential 	for 	disruption 	inherent 	in allowing a
minority of part-time 	teachers 	to vote 	for 	the representative 	for
all part-time 	teachers.
What 	the majority has 	done 	in Hartnell 	by 	stating 	that 	"to 	the
extent 	that Los 	Rios 	and 	its 	progeny are 	inconsistent with 	this
-22-

decision, 	they are expressly overruled," 	is 	to 	suggest 	that even
consent 	agreements, 	stipulated 	settlements 	and voluntary recogni-
tions 	are 	all 	susceptible 	to being overruled by 	the Board and 	its
agents.
As 	a result of this 	case, 	the 	situation has 	gone 	from bad 	to
worse. 	The 	Board has 	left 	the 	educational 	establishment 	of 	this
state 	a virtual 	battlefield 	scattered with 	landmines 	that 	have 	the
potential 	of destroying any unity, 	cohesiveness, 	and spirit of
cooperation 	that might have 	existed among 	the parties. 	They 	even
come 	close 	to 	destroying 	the 	collective 	bargaining 	statute 	that we
as 	a Board are 	duty-bound to uphold. 	What 	the majority has 	done 	in
this 	case, 	and I must 	confess 	that 	I joined with them in Centinela,
is 	to put 	ajar 	the 	door 	to 	total 	disruption of the 	collective
negotiations process. 	In the past our Board agents were often
successful 	in obtaining 	settlements 	among 	the parties 	by 	citing 	the
Board's 	precedential 	rulings; 	they are now handicapped 	in attempting
to 	convince 	the parties 	that 	formal 	and 	costly hearings 	are not
necessary. 	Why 	should any party 	settle when no 	decisions 	of 	the 	Board
appear 	to be precedential? 	In addition, 	hearing officers will now be
at 	a loss 	in writing 	decisions 	after 	formal hearings have been held.
The majority 	in 	this 	case basically 	instructed 	the hearing officer 	to
write Hartnell 	in accordance with 	the 	Los 	Rios 	precedent 	and 	then
overturned 	the 	same 	hearing officer 	for having applied 	the Los 	Rios
precedent 	in the Hartnell 	case. 	This 	can lead us 	to only one
conclusion and 	that 	is 	that 	this 	Board 	can never be 	relied upon for
any precedential 	decisions.
And 	finally, 	while 	the majority accuses me 	of being wedded 	to
PERB precedential 	cases, 	they should explain to 	the parties 	under
-23

our jurisdiction why the current majority is so often wedded to
the NLRB cases that govern the "private" sector.
All of this leads me to conclude that perhaps the entire case
by case process in the representation area might be a big mistake.
The parties may have perhaps been better served by a rule-making
process . 	It would seem that changing the rules would not be as
whimsical an activity as the case deliberation process in repre-
sentation matters has become. What can I say at this point but to
beg forgiveness from both employers and employees whom we have made
suffer under such a ridiculous, time-consuming and expensive process
that the PERB has established? If this law is eventually repealed
either by initiative or legislative action, I think it will be due
in great part to the continued reliance on the private sector model
and the lack of appreciation for the "public" nature of this Board's
jurisdiction. Our very neutrality is now even in question.
Raymond J. Gonzales, Member 	January 2, 1979
Raymond J. Gonzales, Member, dissenting in part:
I would have preferred in this case to refer to my dissent
on the part-time faculty question in Los Rios Community College
District rather than to engage in a lengthy discussion of the
{ (y/9111) EERB Decision No. 18, 31 (conc. and dis. opn. of
Gonzales) .
-24-
our 	jurisdiction why 	the 	current majority 	is 	so 	often wedded 	to
the NLRB 	cases 	that govern the 	"private" 	sector.
All 	of 	this 	leads me 	to 	conclude 	that perhaps 	the 	entire 	case
by case process 	in 	the 	representation area might be 	a 	big mistake .
The 	parties 	may have 	perhaps 	been better 	served by a 	rule-making
process. 	It would 	seem that 	changing 	the 	rules would not be 	as
whimsical 	an activity as 	the 	case 	deliberation process 	in repre-
sentation matters has 	become. 	What 	can 	I 	say at 	this 	point but 	to
beg 	forgiveness 	from both 	employers 	and employees 	whom we 	have made
suffer under 	such a 	ridiculous, 	time-consuming and expensive process
that 	the 	PERB has 	established? 	If 	this 	law 	is 	eventually repealed
either by 	initiative 	or 	legislative 	action, 	I 	think 	it will 	be 	due
in great 	part 	to 	the 	continued reliance 	on 	the 	private 	sector model
and 	the 	lack of 	appreciation 	for 	the 	"public" 	nature 	of 	this 	Board's
jurisdiction . 	Our very neutrality 	is now even 	in question.
Raymond J. 	Gonzales, 	Member 	January 	2, 	1979
Raymond J . 	Gonzales, 	Member, 	dissenting in part:
I 	would have preferred 	in 	this 	case 	to 	refer 	to my dissent
on 	the 	part-time 	faculty 	question 	in Los 	Rios 	Community 	College
District1 rather 	than 	to 	engage 	in a 	lengthy discussion of 	the
1 { (y/9111) 	EERB Decision No. 	18, 	31 	(cone . and dis . 	opn . 	of
Gonzales) 	.
-24-

part-time 	issue, 	because many of 	the 	considerations 	expressed 	in 	that
case are equally applicable to 	the present 	case. 	However, 	since
the majority has 	chosen 	to make 	even more 	confusing 	its 	resolution
of the part-time 	community college 	faculty 	issue, 	as 	I 	feel 	they
have 	done 	in the present 	case, 	I am compelled to point out 	the
grievous 	deficiencies 	in 	the majority's opinion.
First, 	the majority has 	chosen to alter, 	in a significant way,
the manner 	in which 	they will 	treat 	the part-time 	issue. 	The
majority, 	in this 	decision, 	has 	decided that:
In reaching this 	determination, 	however, 	we
do not rely exclusively on Los 	Rios 	Community
College District 	(citation 	omitted), since the
determination as 	to whether 	separate 	groups 	of
employees 	do 	or 	do not possess 	a 	community of
interest with 	each 	other 	sufficient 	to 	require
their 	inclusion 	in 	one negotiating unit must be
determined on 	the 	facts 	of 	each 	case.2
7.
What 	the majority has 	now concluded 	is 	that 	they will 	decide 	the
part-time 	question 	at 	community 	colleges 	on a 	case-by-case basis.
While 	this 	approach 	is 	obviously 	advantageous 	to my position 	and
while 	I 	acknowledge 	that 	factual 	distinctions 	do merit 	consideration
when 	evaluating 	a 	case 	independently, 	I 	am nevertheless 	disturbed by
the majority's 	new treatment 	of 	the part-time 	faculty 	issue because
of what 	it portends 	for other precedential 	rulings 	of 	this 	Board,
namely, 	a dilution of 	their value and purpose.
Los 	Rios was 	originally 	selected as 	a precedential 	case 	to
provide 	guidance 	to 	the hearing officers 	and to 	serve notice 	to
interested parties 	statewide 	regarding 	the 	Board's 	view of 	the
2Supra at p.2.
-25-

part-time 	faculty 	issue.3 Now, 	however, 	a new majority has
concluded 	that 	it will 	decide 	the part-time 	faculty question on 	a
case-by-case basis, 	apparently 	totally disregarding 	the need 	for
precedential 	decisions 	by 	this 	Board and at 	the 	same 	time 	demonstra-
ting 	its 	lack of understanding of 	the 	community 	college 	system of
this 	state. 	For 	this Board 	to 	assume 	that part-time 	teaching in
Hartnell 	is 	so 	different 	from the part-time 	teaching 	situation 	in
Los Rios 	is 	to 	disregard even the 	facts 	as presented in this 	case.
The 	role 	played by part-time 	faculty 	in 	a 	given 	community 	college
district 	certainly 	cannot be 	equated 	to 	that 	of 	supervisory
employees 	or 	confidential 	employees 	that may 	indeed 	change 	from
district 	to 	district. 	What we are 	considering here 	is 	a 	class 	of
employees 	whose working 	conditions 	are virtually 	identical 	throughout
the various 	community 	colleges 	of 	this 	state.
A second reason 	for 	dissenting 	in 	this 	case 	and which 	also
illustrates how 	little precedential value 	the Los 	Rios 	decision
apparently has held for 	the majority, 	is 	the 	fact 	that 	the Board
has 	substantially 	changed 	its 	definition of a part-time 	faculty
person eligible 	to 	be 	included 	in 	the 	overall 	unit 	of certificated
personnel 	and eligible 	to vote. 	The majority now finds 	that
3Minutes of the March 1, 	1977, 	public meeting of this Board
reflect 	the unanimous 	adoption of 	a resolution which remanded
certain cases, 	initially felt to have precedential 	impact, 	to the
General Counsel, 	but left other cases, 	considered to be of prece-
dential value, 	to 	initial determination by the Board. 	Los Rios
was 	among 	the 	cases 	retained 	for Board 	determination because 	it
was 	felt 	that 	the 	ruling 	on 	the part-time 	faculty 	issue presented
by 	that 	case would have 	statewide 	impact.
-26-

"[t]he unit 	appropriate 	for negotiating 	shall 	include 	all 	full-
time 	regular 	and 	contract 	certificated 	employees 	and all 	part-time
employees 	and shall 	exclude all 	department 	chairpersons, 	management,
supervisory 	and confidential 	employees." 4 (Emphasis 	added.) 	But
they have 	limited voting only 	to 	those 	part-time 	employees who 	have
-
worked 	three of 	the 	last 	six semesters. 55 Lest 	I be viewed as now
supporting the Los Rios holding, 	I merely wish to point out 	that
the majority has 	only 	compounded 	the problem of 	the 	ambiguity
existing in the Los Rios 	formula. 	Originally, 	in Los Rios, 	the
majority 	issued 	an 	order 	that 	read:
The 	following unit 	is 	appropriate 	for 	the
purpose 	of meeting and negotiating, 	provided
an 	employee 	organization becomes 	the 	exclusive
representative:
All 	certificated employees, 	including full-
time 	instructors, 	part-time 	instructors who
have 	taught 	at 	least 	the 	equivalent 	of 	three
semesters of the last six semesters inclusive, 	. 	. 	.
This 	original 	order by 	the majority 	in Los Rios 	caused 	so much
confusion 	among 	the 	community 	college 	personnel 	in 	the 	state 	that
the 	Board was 	required to 	issue 	an errata 	sheet 	explaining what
was meant by "inclusive." 	In addition, 	the parties had a great
deal 	of 	difficulty 	in understanding what was meant by 	the 	language
"the 	equivalent 	of 	three 	semesters."66
4 Supra at 13.
5 Supra at 6, 	7, 	and 14
66 Numerous 	calls were 	received by 	agents 	of 	this 	Board asking
them to 	explain what was meant by 	"the 	equivalent 	of 	three 	semesters"
of 	instruction by part-time 	teachers. 	Did 	it mean 45 weeks 	of
teaching? 	Did 	it mean 45 	semester units? 	Was 	it related 	to 	the
number of units? 	Or 	did 	it refer 	to 	the number of hours 	taught?
Neither 	the 	Board agents nor 	the majority 	in Los 	Rios 	could explain
-27-

Subsequently, 	on September 26, 	1977, 	the Executive Assistant
to the Board, 	as per Board direction, 	issued an order in Shasta-
Tehama 	-Trinity 	Joint 	Community 	College 	District7 in 	which 	the 	term
"inclusive" was 	defined:
As 	used 	in 	this 	proposed 	decision 	the word
'inclusive' 	means 	that an instructor who 	is
presently 	teaching 	for 	a 	third 	semester,
under 	this 	formula, 	would also be 	considered
eligible.
But while 	the 	definition of the 	term "inclusive" has 	apparently
been 	clarified by 	Shasta-Tehama 	and problems 	of 	determining how to
apply 	the Los 	Rios 	formula resolved, 	the majority has 	thrown 	the
parties 	another 	curve ball 	by 	introducing 	an eligibility 	to 	vote
requirement 	separate 	and apart 	from an 	eligibility 	to be 	in 	the
unit requirement. 	Not only 	does 	this 	leave 	the unit 	designation
of part-time 	faculty 	in 	the 	community 	college 	system in 	total
disarray, 	it 	is 	inconsistent with previous 	Board policy. 	In
Shasta-Tehama 	and 	all 	previous 	Board 	decisions 	establishing
appropriate units, 	being 	considered 	eligible meant being considered
eligible 	to be 	in the unit 	and 	to vote, 	assuming that one were an
employee 	at 	the 	time of 	the 	election. 	Even the hearing officer's
proposed decision 	in 	this 	case, in accordance with previous 	Board
decisions, 	took "inclusive" 	to mean both eligibility 	for 	inclusion
what was meant by 	its vague order. 	Ultimately, 	it was understood
that 	the purpose 	of 	including 	the word 	"equivalent" was 	to 	account
for 	those 	community 	college 	districts which maintained 	a 	quarter
rather 	than 	a 	semester 	system.
7(9/26/77) EERB Decision No. 	31.
-28-

in the unit and eligibility 	to vote, 	making no 	separate provision
for voting eligibility. 	I 	can only conclude 	that 	the Board has
gone 	from bad to worse 	in attempting 	to resolve 	the part-time
faculty issue, 	a matter of statewide concern.
But 	let 	us 	examine more 	fully 	the 	absurdity of 	the Board's
new position. 	By eliminating 	the 	single 	formula 	for part-time
faculty 	that 	included 	them in 	the unit 	and 	gave 	them the right 	to
vote, 	the majority has 	created an administrative nightmare. 	One
must now conclude 	that an 	individual who 	has 	a 	continued 	expecta-
tion of reemployment 	in a 	community 	college 	district 	as 	a part-
time 	instructor may or may not be 	in 	the unit or may or may not
have 	the right 	to vote. 	Some 	instructors may have a standing
commitment 	from the 	district 	to 	teach only 	spring 	semester 	courses
or 	fall 	semester 	courses 	but 	can 	demonstrate nevertheless 	expectancy
of reemployment. 	Nowhere in its order, 	however, 	does 	the majority
indicate whether 	or not 	the part-time 	instructor must 	be 	currently
employed by the District 	to be 	in the unit. 	Thus, 	what 	the majority
has 	done 	is 	to 	create 	three types 	of part-time 	faculty: 	those who
are 	in the unit but 	cannot vote; 	those who are 	in 	the unit and can
vote; 	and 	those who 	are 	in 	the unit 	every other 	semester and 	can
demonstrate 	continued reemployment but 	can vote only 	if 	they 	are
fortunate 	enough to be 	teaching when an 	election occurs. 	The
majority appears 	to 	have no 	concern 	for 	the 	efficiency of operation
criterion 	found 	in 	Section 3545(a) 	of the Educational 	Employment
Relations Act 	(EERA).9
8Hartnell 	Community College District 	(7/15/77) 	Case No. 	SF-R-312,
at 17.
9Government 	Code 	section 	3540 	et 	seq.
-29-

Adding 	to 	this 	confusion 	and 	clearly 	raising 	a 	fundamental
legal 	question, 	is 	the majority's 	order 	that limits voting. 	The
majority attempts 	to rationalize 	this 	conclusion. 	They 	state:
However, 	having determined 	that 	the unit
appropriate 	for 	meeting 	and negotiating 	includes
both full- 	and part-time 	faculty, 	we are not
satisfied 	that 	all 	part-time 	faculty possess
either 	a 	sufficient 	expectation 	of re-employment
with 	the 	District 	or 	a 	substantial 	continuing
interest 	in those matters within 	the 	scope of
representation 	to 	entitle 	them to vote 	in 	the
election. 	Therefore, 	only those part-time
faculty who have worked 	at 	least 	three 	of 	the
last 	six 	semesters 	inclusive 	shall be 	eligible
to 	vote.10
The 	precise 	concern here 	is 	the majority's 	total 	disregard
for 	the 	language 	of EERA found 	in Government 	Code 	sections 	3540
and 	3543. 	Section 	3540 	of EERA provides 	in pertinent part:
It 	is 	the purpose 	of 	this 	chapter 	to promote
the 	improvement 	of personnel management 	and
employer-employee 	relations 	within 	the 	public
school 	systems 	in 	the 	State 	of 	California by
providing 	a 	uniform basis 	for 	recognizing 	the
right 	of public 	school 	employees 	to join
organizations 	of 	their own 	choice, 	to 	be
represented by 	such 	organizations 	in 	their
professional 	and 	employment 	relationships 	with
public school 	employers, 	to select one employee
organization as 	the 	exclusive 	representative 	or
the 	employees 	in an appropriate unit. 	(Emphasis 	added.)
Similarly, 	section 	3543 	of EERA provides 	in pertinent part:
Public 	school 	employees 	shall have 	the right 	to
form, 	join, 	and participate 	in the activities 	of
employee 	organizations 	of 	their 	own 	choosing 	for
the 	purpose 	of representation 	on 	all matters 	of
employer-employee 	relations.
10 Supra at 	6, 	7.
-30-

We must 	ask whether 	or not 	every member 	of 	a negotiating unit
consisting of all 	part-time 	faculty members 	of a 	community 	college
and 	their 	full-time 	counterparts 	should be 	permitted 	to vote 	in 	a
representation election 	involving 	their unit. 	The 	answer must be
yes 	in view of 	the plain 	language 	of 	sections 	3540 	and 3543 	of
EERA which provides 	public 	school 	employees with 	the 	right 	to
select 	a negotiating representative 	and 	to participate 	in 	the
activities 	of 	their 	employee 	organization. 	To 	deny 	some part-time
faculty members 	the right 	to vote 	in 	a representation 	election
involving 	their negotiating unit 	contravenes 	the 	spirit 	of 	this
legislation.
In fact, 	it 	is 	interesting to note 	that in a brief recently
submitted to 	the California Supreme 	Court, 	San Diego Teachers
Association 	and Hugh P. 	Boyle v. 	Superior 	Court 	for 	the 	County of
San Diego, 	Case No. 	LA-30-977, 	the majority argued the rights of
employees 	to 	participate 	in 	the 	activities 	of 	their organization
as 	a basis 	for 	concluding 	that 	it 	is 	arguable 	that peaceful
strikes 	by public 	school 	employees 	are protected by the 	EERA.
I 	quote:
The EERA insures 	public 	school 	employees 	the
right 	'to form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of 	their
own choosing 	. 	, 	. 	.'11
11 Brief of the 	Public Employment Relations 	Board, 	San Diego
Teachers 	Association and Hugh P. 	Boyle v. 	Superior Court 	for 	the"
County of San Diego 	(11/1/78) 	L.A. 	No. 	30977 at 18.
11 	. . .
-31-

It is 	inconceivable 	that 	the majority would, 	in the present 	case,
disregard 	the 	language 	that 	they 	argued 	so 	forcefully 	for 	in 	their
brief 	in 	favor of 	granting public 	employees 	the right 	to 	strike,
and 	turn 	around 	in 	the 	present 	case 	and 	deny 	the 	same 	employees
the 	right 	to 	"participate 	in 	the 	activities 	of an employee
organization of 	their 	choosing" 	by 	denying 	them the most 	fundamental
right 	of voting 	for 	their negotiating representative.
Additionally, 	it 	is 	incongruous 	to claim on the one hand that
all 	part-time 	faculty have 	a 	sufficient 	community of 	interest with
full-time 	faculty 	to be 	included 	in 	the 	same negotiating unit 	and
then to assert, 	as 	does 	the majority in this case, 	that they do
not have 	a 	substantial 	continuing 	interest 	in 	those matters within
the 	scope 	of representation 	to 	entitle 	them to vote 	in 	the 	election.
The majority 	opinion 	is 	based on 	the reasoning 	that 	there 	is 	a
distinction 	to 	be made between 	employees who have 	an 	"expectation
of re-employment with 	the 	district 	or 	a 	substantial 	continuing
interest 	in 	those matters within 	the 	scope of representation 	to
entitle 	them to vote 	in 	the 	election" 	and those who 	do not. 	This
is 	pure 	speculation. 	How is 	it possible 	for the majority in 	this
case 	to 	conclude 	that one 	employee has 	a 	substantial 	continuing
interest while 	another 	does 	not? 	This 	cannot 	even be 	said of 	the
regularly 	employed 	faculty who might 	at 	any 	given 	time 	choose 	to
terminate 	their services with the district, 	or conversely, 	the
district may 	find 	it necessary 	to 	terminate 	their 	services.
Moreover, 	if some part-time 	faculty members 	do not 	share a
substantial 	interest 	in 	"those matters within 	the 	scope of
representation" 	then 	they obviously 	do not 	share 	a 	community of
interest with full-time 	faculty 	and 	should not be 	included 	in 	the
-32-

same negotiating unit. 	On the other hand, 	if they do 	share 	a
community 	of 	interest 	then 	logically 	they must 	also 	share 	a mutual
interest 	in 	"matters 	within 	the 	scope 	of representation" 	and 	should
thus 	be 	included 	in 	the 	same 	negotiating unit 	and 	enjoy 	the 	equal
right 	to vote 	and participate 	in 	the 	activities 	of 	employee
organizations 	of 	their own 	choosing.
The majority's 	formula 	as 	to voting eligibility 	is 	flawed 	in
another 	respect. 	Part-time 	employees who have been 	designated by
the majority 	as members 	of 	the 	overall 	certificated unit 	could
sign proof of 	support 	cards 	or petitions 	pursuant 	to 	Government
Code 	section 3544.12 A district, 	as 	a result of receiving a showing
of majority 	support,could 	grant voluntary 	recognition 	to 	the 	employee
organization. 	This 	would 	clearly undermine 	the majority's 	new
holding 	that not 	all 	part-timers 	in 	the unit have 	the 	right 	to vote
since 	any part-timer would 	in 	effect be 	casting 	a vote 	by 	signature
rather 	than by ballot 	even 	though 	that 	employee 	does 	not have 	a
"sufficient 	expectation of re-employment with 	the 	District 	or 	a
substantial 	continuing 	interest 	in those matters within 	the 	scope
of representation 	to 	entitle 	them to vote 	in 	the 	election."
12
Section 3544 provides 	in part:
An 	employee 	organization may become 	the 	exclusive
representative 	for 	the 	employees 	of 	an 	appropriate
unit 	for purposes 	of meeting 	and negotiating by
filing 	a request with 	a public 	school 	employer
alleging 	that 	a majority 	of 	the 	employees 	in an
appropriate unit wish 	to 	be 	represented by 	such
organization 	and 	asking 	the public 	school 	employer
to 	recognize 	it 	as 	the exclusive representative.
The request 	shall 	describe 	the 	grouping of jobs 	or
positions which 	constitute 	the unit 	claimed 	to 	be
appropriate 	and 	shall 	include 	proof 	of majority
support 	on 	the basis 	of 	current 	dues 	deduction
authorizations or other evidence . 	. 	. 	.
13Supra at 6.
-33-

Equally 	absurd 	is 	that while 	any part-time 	employee's 	signature
can be used 	to 	establish 	an employee 	organization proof of 	support,
because of 	the new voting eligibility requirement, 	the very 	same
part-time 	employees would be unable 	to 	select 	the 	exclusive
representative of 	their 	choice.
Finally, 	referring 	specifically to page 	3 of the majority
opinion wherein 	the majority presents 	a 	litany of areas, 	though
by no means 	exhaustive, 	where 	there 	exists no 	community of 	interest
between regular 	faculty 	and part-time 	faculty, 	I 	think 	it behooves
the Board 	to 	find a separate unit of part-timers 	if, 	indeed, 	the
majority 	intends 	to 	analyze 	the 	part-time 	issue 	on 	a 	case-by-case
basis. 	They state:
There was 	uncontradicted 	testimony 	that 	only 	the
full-time 	faculty 	evaluate 	probationary 	employees
. 	. 	. 	serve on screening committees for new full-
time employees 	. 	. 	. 	are employed under a written
contract 	. 	. 	. 	are involved in the formulation
and 	implementation 	of 	affirmative 	action 	programs
. 	. 	. 	serve on accreditation teams for community
colleges 	. 	. 	. 	are eligible to serve as department
chairpersons 	. 	. 	. 	are eligible for membership in
the academic senate 	. 	. 	. 	are required to belong
to the State Teachers Retirement System . 	. 	. 	are
evaluated pursuant 	to procedures 	set 	forth 	in 	the
Education Code 	. 	. 	. 	are eligible for 	'additional
professional increments' of salary . 	. 	. 	serve as
members 	of 	committees 	in 	the 	selection of 	classi-
fied employees 	. 	. 	. 	are expected by custom to have
office hours 	. 	. 	. receive sabbatical leave, paid
holidays, 	and health and welfare coverage 	. 	. 	.
In conclusion, 	I would only 	say that 	this 	decision surpasses
Los 	Rios 	in its 	absurdity, 	for not only does 	the majority now attempt
to 	include 	all part-time 	faculty members while 	denying 	some of 	them
their 	legal 	right 	to vote 	for 	a representative 	of 	their 	choosing,
but 	the majority also 	concludes 	that now it will 	attempt 	to 	resolve
the 	part-time 	question at 	the 	community college 	level 	on a 	case-by-
case basis, 	apparently leaving 	the precedential value of Los 	Rios
-34-

in abeyance. This "flip-flop" by the majority not only frustrates
the entire Board hearing process but clearly dampens any incentive
for settlement that the parties may have. Perhaps it would be
wiser to abandon the entire unit determination process as it now
exists and render these decisions in the form of rules to eliminate
the cost both to the districts and to the employee organizations.
For if this Board cannot assure the parties of consistent and
reasonable decisions, the entire process is frustrated and has the
potential of becoming too costly to be worth the effort. It is my
conclusion that this decision by the Board is another indication
of the majority's attempt to impose the private sector collective
bargaining attitudes, concepts, and traditions upon the public
sector, and I believe this is perhaps the greatest damage the PERB
can inflict on the public school system of this state.
Raymond J. Gonzales, Member 	November 16, 1978
-35-
in abeyance . 	This 	" flip-flop " 	by the majority not 	only frustrates
the 	entire 	Board hearing process 	but 	clearly dampens 	any 	incentive ·
for 	settlement 	that 	the 	parties may have . 	Perhaps 	it would be
wiser 	to 	abandon 	the 	entire unit 	determination process 	as 	it 	now
exists 	and render 	these 	decisions 	in 	the ·form of 	rules 	to 	eliminate ·
the 	cost 	both to 	the ' districts 	and to 	the 	employee 	organizations .
For 	if 	this 	Board cannot 	assure 	the parties 	of 	consistent 	and
reasonable 	decisions, 	the 	entire process 	is 	frustrated 	and has 	the
potential 	of becoming too 	costly 	to be worth 	the 	effort . 	It 	is 	my
conclusion 	that 	this 	decision by 	the 	Board 	is 	another 	indication
of 	the majority ' s 	attempt 	to 	impose 	the 	private 	sector 	collective
bargaining attitudes, 	concepts, 	and traditions upon the public
sector, 	and 	I 	believe 	this 	is perhaps 	the greatest 	damage 	the 	PERB
can 	inflict 	on 	the 	public 	school 	system of 	this 	state .
Raymond J . 	Gonzales, 	Member 	November 	16, 	1978
-35-

EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of
HARTNELL COMMUNITY COLLEGE DISTRICT,
Employer,
and
HARTNELL COLLEGE FACULTY
ASSOCIATION, CTA/NEA
Employee Organization	___:	.
)
)
)
) 	Case No. 	SF-R-312
)
)
)
)
) 	PROPOSED DECISION
) 	(7/15/71)
. . -- . . ..
Appearances: 	Andrew Church, Attorney (Abramson, 	Church and
Stave), for Hartnell Community College District; Duane B.
Beeson, Attorney (Brundage, Beeson, Tayer and Kovach), for
Hartnell College Faculty Association, 	CTA/NEA.
Proposed Decision by Ronald E. 	Blubaugh.
PROCEDURAL HISTORY
On April 1, 	1976, 	the Hartnell College Faculty
Association, 	CTA/NEA filed a request for recognition with
the Board of Trustees of the Hartnell Community College
District.H The request asked for recognition of the Associa-
tion as the representative of a unit of all certificated
l Throughout this opinion, 	the Hartnell College Faculty
Association, 	CTA/NEA will be referred to as the "Associa-
tion." 	The Hartnell Community College District will be
referred to as the "District."
-1-
1
)
)
)
_______________ 	_)
l
' 	. -- ... ,

employees with certain listed exclusions.2
The District posted a notice of the request on
April 9, 	1976, 	and at a special meeting on May 4, 	1976,
the governing board approved a resolution doubting the
appropriateness of the unit requested by the Association.
The District also requested an election. 	On June 11, 	1976,
the Association requested the Educational Employment Relations
Board (EERB) to conduct a hearing and resolve the dispute.3
A hearing was conducted by EERB member Raymond Gonzales 	in
Salinas on September 22, 1976.
At the hearing, the parties agreed that their .
dispute presents two issues for the EERB. 	The first issue
is whether part-time certificated employees should be included
in the same negotiating unit with the full-time certificated
employees. 	The Association argues that full-time and part-
time faculty members 	should be included in the same unit
because they share a community of interest. 	The District
contends 	that the part-time faculty should not be included
in the regular certificated unit because they do not share
a community of interest.
The Association proposed the exclusion of the superintendent,
the dean of instruction, 	the associate dean of instruction/
evening and summer, 	the associate dean of instruction of
careers, 	the dean of student personnel, 	the business manager,
the director of community services, 	the associate dean of
student personnel, 	the special student services officer, 	the
director of cooperative educational/occupational work expe-
rience, 	the director of learning resources, 	and the director
of applied health services.
The record does not reflect that the parties stipulated to
these exclusions. 	However, 	it would seem from the transcript
that the parties are not in disagreement about these positions.
Therefore, 	the author of this decision will not inquire further
about them.
3Government Code Section 3544.5 empowers the EERB to conduct
a hearing about the appropriateness of a disputed unit upon
the request of an employee organization.
-2-

The 	second 	issue 	is whether 	department 	chairpersons
are management employees. 	The Association argues 	that 	depart-
ment 	chairpersons 	should be 	included 	in 	the 	regular 	certifi-
cated unit because they are not management 	employees. 	The
District 	contends 	that 	department 	chairpersons 	are management
and 	should be 	excluded.
ISSUE
Should part-time 	certificated employees 	be 	included
in 	the 	same negotiating unit with 	full-time 	certificated
employees?
FINDINGS 	OF 	FACT
The 	Hartnell 	Community College 	District 	comprises
the entire 	Salinas Valley. 	Hartnell 	Community College 	is
accredited by 	the Western Association 	of 	Schools 	and Colleges.
It has 	the 	authority to 	confer Associates of Arts 	degrees,
and in programs 	that are 	shorter than two years, 	the
college has 	the 	authority to 	confer 	certificates 	of
completion. 	There 	are 	6,923 	students 	enrolled at Hartnell
Community College.
The Hartnell 	Community College 	District 	has
approximately 113 	full-time 	faculty members. 	Of these,
approximately 20-25 	are 	contract 	employees, 	and approximately
90-95 	are regular 	employees.4 There 	are 	213 	part-time 	faculty
members 	in the 	evening program, 	and 25 part-time 	faculty
4 Certificated employees 	in 	the 	community colleges must be
classified as 	either contract, 	regular or temporary.
Education 	Code 	Sections 	87476 	(formerly numbered 	13334)
and 87604 	(13346). 	The statutory scheme covering the
achievement 	of 	tenure by 	certificated employees 	envisions
the 	progression of 	a 	satisfactory employee 	from 	the pro-
bationary 	status 	of 	"contract" 	to 	the permanent 	status 	of
"regular" 	after 	two years. 	See Education Code Section
87600 	(13345) 	et seq.
-3-
4
I,

members in the day program. 	Instructors who teach 40 percent
or less of 15 credits 	(approximately two classes) 	are
designated by the District as part-time. 	Part-time teachers
are paid on an hourly basis. 	No evidence was presented as
to how many of the part-time teachers are designated regular
or contract.
Several full-time day instructors teach evening
classes. 	Some teach evening classes as part of their regular
assignment. 	Others teach in the evening as an addition to
their regular assignment, 	for which they are paid at an hourly
rate of 1/1150 of their annual contract salary.
While part-time faculty members do not receive
additional compensation for longevity of service, 	they do
receive additional compensation for increased educational
attainment, as do the full-time teachers.
The District applies the same standards of course
content and the same standards of quality of course offerings
for both the day and evening classes. 	An effort is made by
the department chairperson to have the part-time instructors
use the same textbooks as the full-time instructors. 	Students
can obtain credit toward degrees from either day or evening
classes, interchangeably.
The process for hiring full-time instructors begins
when the department chairperson assesses the needs of the
department. 	If another teacher is needed, 	the chairperson
asks the dean of instruction. 	The position is then advertised.
The chairperson reviews the applications, 	and appoints a
screening committee which the chairperson heads. 	The chair-
person is always one of the interviewers, however each member
of the committee has a voice in the decision about which
candidate is hired. 	In contrast, 	the interviewing and screening
of the part-time instructors is done solely by the department
chairperson. 	The recommendations for employment of both full-
time and part-time day instructors are reviewed by the dean of
-4-
•

instruction. 	Recommendations 	for 	the employment 	of an
evening 	instructor 	are 	reviewed by 	the 	dean 	of 	the 	evening
program.
The 	full-time 	instructors 	are 	evaluated by a
committee of 	three persons, 	one of whom is 	the department
chairperson. 	It 	is 	the responsibility of the 	chairperson
to write 	the committee's report. 	Evaluation of 	the part-
time 	instructors 	is 	done by the 	department 	chairperson, 	unless
the 	chairperson has 	delegated 	this 	duty. 	The recommendation
of either 	the 	committee 	or 	the 	department 	chairperson 	is
given to 	the 	dean of 	instruction.
The 	full-time 	instructors 	are not 	required by 	the
governing board to have office hours. 	However, 	it 	is
expected 	that 	all 	full-time 	instructors will 	have 	office
hours. 	One part-time 	instructor 	testified that 	she has 	an
office and maintains regular 	office hours. 	Only the 	full-
time 	instructors 	are required 	to 	attend 	faculty meetings,
however 	some part-time 	instructors 	do 	so voluntarily.
Membership 	in 	the academic 	senate 	is 	limited to
full-time 	contract 	or regular 	instructors. 	The 	full-time
instructors 	participate on 	such faculty bodies 	as 	the 	screening
committees, 	the accreditation committees, 	and the budget
committees. 	There was 	testimony by a part-time 	instructor
that 	she also belongs 	to 	such bodies.
There 	is 	some difference 	in the benefits received
by 	the 	part-time 	and 	the 	full-time 	certificated employees.
Full-time 	instructors 	are entitled to 	sabbatical 	leaves; 	part-
time 	faculty members 	are not. 	The 	full-time 	instructors
receive health benefits; 	part-time faculty do not. 	Sick
leave 	can be 	earned by both the part-time 	and 	the 	full-time
instructors. 	The 	full-time instructors participate 	in the
State Teachers' 	Retirement System.
-5-

The California Teachers Association (CTA) 	is the
only faculty organization that participated on the certificated
employees council under the Winton Act. 	A wage proposal
presented by the CTA included increased pay and benefits for
the part-time instructors. 	A part-time instructor has served
on the certificated employees council in the past. 	The
administration did not object to this.
CONCLUSIONS OF LAW
The issue presented in this case is essentially
identical to that considered by the EERB in Los Rios Community
College District.• 	In Los Rios, 	the EERB held that "part-time
instructors who have taught at least the equivalent of three
semesters of the last six semesters inclusive" should be in
the same unit with the full-time instructors.
After noting the Educational Employment Relations
Act's mandates for resolving unit 	questions,6 the EERB analyzed
5 EERB Decision No. 18, June 9, 1977.
6 Government Code Section 3545 reads as follows:
(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 teachers employed by the public school
employer, except management employees, supervisory
employees, and confidential employees.
(2) A negotiating unit of supervisory employees shall
not be appropriate unless it includes all supervisory
employees employed by the district and shall not be rep-
resented by the same employee organization as employees
whom the supervisory employees supervise.
(3) 	Classified employees and certificated employees shall
not be included in the same negotiating unit.
-6-
----------

New York University, 7 the 	leading National Labor Relations
Board 	case 	dealing with unit 	placement 	in private universities.
The EERB thus met 	its 	obligation to 	consider NLRB precedent.8 8
In New York University, 	the NLRB 	set 	forth four areas
in which 	it 	found 	"no real mutuality of interest" between 	the
part-time and full-time 	faculty members: 	1) 	compensation,
2) 	participation in university government, 	3) 	eligibility for
tenure, 	4) 	working conditions. 	The NLRB reversed its prior
position9 and 	excluded part-time 	instructors who were not
employed in 	"tenure track" positions.
The 	NLRB noted 	that most 	of 	the part-time 	instructors
received 	their 	primary 	income 	elsewhere 	and 	that 	their primary
work 	interest was 	elsewhere. 	They received no 	fringe benefits
and were 	excluded 	from the 	faculty 	senate. 	They 	did not
participate in department 	decisions 	on appointments, 	promotions
or 	tenure. 	They were not 	consulted on 	curriculum development,
degree requirements of department chair 	selection. 	They had
no voice 	in developing institutional policies, 	nor were 	they
obligated 	to 	engage in research, 	writing or other 	creative
endeavors, 	counsel 	students 	or participate 	in department and
university affairs. 	Finally, 	they could not 	achieve 	tenure
under 	any 	circumstances.
In Los Rios, 	the EERB found this analysis 	inapplicable
to 	the California Community Colleges. 	The EERB noted 	that 	the
7 205 NLRB 4 	(1973), 	83 LRRM 1549.
88 Fire Fighters Union, 	Local 1186 v. 	City of Vallejo, 	12 Cal.
3d 	606 	(1974).
9 In Long 	Island University, 	C.W. 	Post Center, 	189 NLRB 904
(1971), 	77 LRRM 1001, 	and in University of New Haven, 	190
NLRB 478 	(1971), 	77 LRRM 1273, 	the NLRB developed a formula
for 	including certain part-time 	instructors 	in the 	same unit
as 	full-time 	instructors.
-7-

NLRB cases 10
1 11
10 deal with four-year universities which place
emphasis on research and writing by faculty members. 	The
EERB noted that the California community colleges are primarily
teaching institutions which offer instruction through the
second year of 	college.
,, The University of California is
designated by law as 	"the primary state-supported academic
agency for research." 12	12 There is no authorization for
research in the community colleges.
Another major distinction the EERB considered between
the California community colleges and the private four-year
institutions is the whole question of tenure. 	It is clear from
the NLRB decisions that faculty members who can acquire tenure
are not excluded from the unit. 	This occurs because the
institutions considered by the NLRB link tenure directly with
the instructor's status as a full-time employee. 	Full-time
instructors are on the tenure track. 	Part-time instructors
are not.
In California, 	there is not such a fixed linkage
between tenure and the instructor's status as either part-time
or full-time. 	It is clear that part-time community college
instructors can obtain tenure in this state. 	Ferner v. Harris
(1975), 45 C.A.3d 363 at 368; Vittal v. Long Beach Unified
- 	-- . .. ..
School District (1970), 	8 CA.3d 112. 	There has been a great
deal of litigation about whether certain "temporary" instructors
can obtain tenure in the community colleges and the results are
10	10 For NLRB decisions applying the New York University rule
see University of San Francisco 207 NLRB 12 (1973), 84 LRRM
1403; Point Park College, 209 NLRB 1064 (1974), 85 LRRM 1542;
University of Miami, 213 NLRB No. 64 (1974), 87 LRRM 1634;
Goddard College, 216 NLRB No. 81 (1975), 88 LRRM 1228;
Rensselear Polytechnic Institute, 218 NLRB No. 220 (1975),
89 LRRM 1844; Yeshiva University, 221 NLRB No. 169 (1975),
91 LRRM 1017; University of Vermont, 223 NLRB No. 46 (1976),
91 LRRM 1570.
11 Education Code Section 66701 	(22651).
12 Education Code Section 66500 	(22550).
-8-

conflicting. 	Balen v. 	Peralta Junior College Dist. 	(1974),
11 C A . 3 d 821; 	Coffey v. 	Governing Bd. 	of S.F. 	Community
College Dist. 	(1977), 	66 C A . 3 d 279; 	Peralt	. . a Federation of
Teachers v. 	Peralta Community College District 	(1977),
69 	C A . 3 d 281. 	But however 	the California Supreme 	Court
ultimately unscrambles 	these cases, 	the mere possibility of
tenure 	for any part-time 	instructors marks 	a 	significant
distinction 	from 	the 	NLRB precedent.
. . . . . . 	. . . . ... . ... . ..
Consistent with what 	the EERB 	found in Los Rios,
there 	are 	these 	and other 	distinctions between Hartnell
Community College 	and New York University. 	It 	is 	true 	that
the 	part-time 	faculty 	at Hartnell 	College 	cannot become members
of the academic 	senate. 	However, 	both the part-time and full-
time 	instructors 	participate 	on 	such 	faculty 	committees 	as 	the
screening committees, 	accreditation committees, 	and budget
committees. 	Moreover, 	it 	seems 	doubtful 	that even full-time
faculty members 	at Hartnell 	College have 	anything 	like 	the
role 	in 	governance 	possessed by 	the 	New York 	University 	faculty.
At 	New York University, 	the 	full-time 	faculty has 	a 	significant
role 	in establishment 	of both 	admission 	standards 	for 	students
and degree requirements. 	In accord with the practice 	of 	shared
governance 	at major 	universities,13 the 	New York 	University
faculty has 	a key voice 	in 	the 	operation of that 	school.
In the California community colleges, 	many of these
matters 	are not 	subjects 	for 	faculty participation. 	By 	law,
admission 	in 	the 	community 	colleges 	is open to 	any person with
a high 	school 	diploma or 	its 	equivalent.14	14 By law, 	the 	district
governing board 	is 	to 	establish policies 	for 	and approve 	the
total 	educational program for 	the 	district. 15	15 No 	evidence 	sub-
mitted 	in 	the Hartnell 	College hearing 	indicates 	the 	faculty
13 See 	generally Kahn, 	"The 	NLRB 	and Higher Education: 	The
Failure of Policy-making 	through Adjudication," 	21 	UCLA L.R. 	63
14 Education 	Code 	Section 	7600 	(25503).
15 Education Code 	Section 	72283 	(1010.4).
-9-

participates 	in these matters.
There 	is 	some parallel between the 	salary 	structure
for 	the Hartnell 	College 	full-time 	contract 	and regular 	teachers
and that 	for 	the part-time 	certificated employees. 	They both
receive 	additional 	compensation 	for 	increased 	educational
attainment.
Most 	of 	the 	factors 	considered by 	the NLRB 	in 	its
decision 	to 	separate part-timers 	are 	thus 	distinguishable 	in
part 	or 	in full 	from the 	situation 	in 	the Hartnell 	Community
College District. 	When that rationale is 	set aside, 	as 	the
EERB 	found in Los Rios, 	the 	case becomes 	compelling for 	the
inclusion of at 	least 	some part-time 	instructors 	in 	the 	same
unit with 	full-time 	instructors. 	The most 	fundamental 	consid-
eration 	is 	that 	they do 	the 	same work. 	They 	teach. 	The
courses 	are 	the 	same. 	An effort 	is made by the 	department
chairperson 	to have 	the part-time 	teachers use 	the 	same 	text-
book as 	the regular 	certificated teachers. 	The grading 	is 	the
same. 	Students may complete 	their 	entire program in 	either
day or 	evening or 	a combination of both. 	There 	is no 	element
in 	community 	of 	interest 	considerations more 	basic 	than 	the
nature of the work. 	In 	some cases, 	there may be reasons 	to
place 	employees performing 	essentially 	identical work 	into 	separate
negotiating units. 	The NLRB has 	chosen this path for 	the
private universities 	under 	its jurisdiction. 	The EERB has
decided 	to 	the 	contrary 	in the California community 	colleges.
In Los Rios, 	the EERB decided that 	the 	length of
a part-time 	instructor's 	relationship with 	the 	district 	should
form the 	dividing line between those who 	are 	in the unit 	and
those who are not. 	The hearing officer will 	follow the 	same
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approach in this 	case.16 On the basis of the evidence recited
above and the whole record, 	the hearing officer finds that
part-time certificated employees shall be in the unit with
regular and contract instructors if those part-time employees
have taught at least the equivalent of three semesters out of
the last six semesters inclusive.
ISSUE
17
Are department chairpersons management employees? 17
16	16 Government Code Section 3545 commands that a negotiating
unit with classroom teachers shall contain all classroom
teachers. 	In Los Rios, 	the EERB considered whether that
section requires all part-time instructors to be placed
in the unit. 	Relying on its earlier reasoning in Belmont
Unified School District, EERB Decision No. 7, December 30,
1976, 	the EERB concluded all part-time instructors need
not be included in the unit.
In addition to community of interest considerations, 	Govern-
ment Code Section 3545 also commands that attention be paid
to established practices and efficiency of operation. 	The
EERB has decided it will give little weight to past represen-
tation practices under the Winton Act, when they occurred in
a unilateral context. 	Sweetwater Union High School District,
EERB Decision No. 	4, 	November 23, 	1976, and Grossmont Union
High School District, EERB Decision No. 11, March 9, 1977.
For whatever weight it does have, however, 	there was evidence
the formerly existing certificated employees 	council at
Hartnell College negotiated at least once on behalf of the
salaries and benefits for the part-time teachers. 	In addition
a part-time teacher has served on the certificated employees
council in the past, 	and the administration did not object to
this. 	Finally, 	there was no evidence suggesting it would be
inefficient for the part-time instructors to be placed in the
same unit as the full-time instructors.
17	17 In Los Rios, 	the EERB held that division chairpersons in the
community college were supervisors as 	defined by Government
Code Section 3540.l(m), and therefore they were not included
in the same negotiating unit with the certificated teachers.
In the present case, 	the District and the Association
stipulated that the department chairpersons are not supervisors
The hearing officer adopts that stipulation without inquiry.
Therefore, 	the only issue is whether department chairpersons
should be excluded from the 	certificated teacher negotiating
unit because they are management employees.
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FINDINGS 	OF FACT
There 	are nine 	departments 	at 	the Hartnell 	Community
College. 	The departments are: 	applied health services, 	fine
arts, 	health/physical education/recreation, natural science,
business, 	language arts, mathematics/engineering, 	social
science, 	and technology/agriculture. 	Each department has 	a
department 	chairperson. 	They are all 	tenured 	employees.
Candidates 	for 	department 	chairperson 	are nominated by
instructors 	in the various 	departments, 	and selected by the
board of trustees. 	The 	term of 	service 	is one year, 	although
as 	a practical matter 	elections 	are held about 	once 	every
three years. 	No particular 	credential 	is required beyond
that 	of a regular 	instructor. 	The job necessitates 	release
time 	from teaching. 	At 	least 	two 	department 	chairpersons
have 	100 percent 	release 	time because 	of their 	extensive 	duties.
The 	salary of the 	department 	chairpersons 	includes 	a 	3 percent
responsibility 	factor 	over 	the 	contract 	of 	the 	regular 	teachers,
and 	5 	percent 	of 	their 	contract 	salary for 	every two weeks 	of
extra 	service. 	Their benefits 	are 	the 	same as 	those 	of the
regular 	instructors.
Department 	chairpersons 	have 	several 	responsibilities
The chairperson 	is 	responsible 	for 	formulating 	the budget 	of
the particular department. 	Based upon faculty input, 	the
department 	chairperson recommends 	to 	the 	governing board 	the
amount 	of money which 	should be 	allocated 	to 	the particular
department. 	Some of the components of a budget are: 	the
teachers' 	salary account, 	the classified salary account, 	the
student help account, 	the replacement equipment account, 	and
the 	supplies 	account.
Determining 	the 	department 	curriculum 	is 	another
responsibility of 	the 	chairperson. 	Most 	suggestions 	concerning
the 	department 	curriculum originate with the 	faculty members.
If 	the 	department 	chairperson decides 	that 	something 	should
-12-

become part 	of the 	curriculum, 	the 	idea 	is 	submitted to 	the
dean of 	instruction, 	so 	that 	it 	can be put on the agenda of
the 	curriculum committee. 	Each 	department has 	a representative
on 	this 	committee. 	Usually the representative 	is 	the 	department
chairperson. 	The 	curriculum committee makes recommendations
to 	the 	governing board.
In 	determining 	the 	schedule 	of the 	classes 	in 	the
department, 	the 	chairperson takes suggestions 	from the 	faculty
members. 	The 	chairperson then makes recommendations 	to 	the
dean of 	instruction who has 	the power 	of review.
It 	is 	the responsibility of the 	department 	chairperson
to 	set 	up 	and head the 	screening 	committees which 	interview
people 	for 	full-time 	employment 	as 	instructors 	in 	the 	department.
The 	screening 	committees make recommendations 	to 	the 	dean 	of
instruction. 	In 	selecting part-time 	instructors, 	the department
chairperson has 	almost 	sole 	responsibility 	for 	screening 	and
interviewing 	the 	applicants. 	The 	chairperson 	then makes 	recom-
mendations 	to 	the 	dean of 	instruction, 	or 	for 	the 	evening program,
to 	the 	dean of the 	evening program.
The 	department 	chairperson has 	a role 	in recommending
personnel 	changes within 	the 	department. 	The 	full-time 	instructors
are 	evaluated by a committee 	of 	three persons. 	The 	department
chairperson 	sets up 	the evaluation 	committees 	and 	is 	one of 	the
three members. 	It 	is 	the 	department 	chairperson's responsibility
to write 	the report 	for the committee. 	Evaluation of the part-
time 	instructors 	is 	done by the 	department chairperson, 	unless
the chairperson has 	delegated 	this 	duty. 	The recommendation of
either 	the committee 	or 	the 	department 	chairperson 	is 	given 	to
the dean 	of instruction.
When district policy 	concerns 	an area of 	instruction,
the 	department 	chairperson 	and 	the 	dean 	of 	instruction 	administer
it. 	If the policy affects 	one department, 	just the department
chairperson administers 	it. 	It 	appears 	that 	the 	department
-13-

chairperson's 	responsibilities 	consist 	mainly 	of 	communicating
the 	district policy 	to 	the 	faculty 	in their 	department, 	and
seeing to 	it 	that 	the 	district 	policies 	are complied with.
CONCLUSIONS 	OF LAW
There 	is 	applicable precedent 	on 	this matter 	from
both 	the 	National 	Labor Relations 	Board and 	the 	Educational
Employment 	Relations 	Board. 	Even 	though 	the National Labor
Relations Act 	does not 	define 	"management 	employee," 	the NLRB
and 	the 	federal 	courts 	have 	characterized management 	employees
as:
Those who 	formulate 	and effectuate
management 	policies 	by 	expressing
and making 	operative 	the 	decisions
of their 	employer, 	and 	those who
have 	discretion 	in 	the 	performance
of 	their 	jobs 	independent 	of 	their
established 	policy.18
The 	California Legislature 	has 	by 	statute 	defined
"management 	employees." 	Government 	Code 	Section 	3540.l(g)
provides:
"Management 	employee" means 	any
employee 	in a position having
significant 	responsibilities 	for
formulating 	district 	policies 	or
administering 	district 	programs.
Management 	positions 	shall 	be
designated by 	the 	public 	school
employer 	subject 	to 	review by the
Educational 	Employment 	Relations
Board.
In NLRB v. 	Bell Aerospace Co., 	416 U.S. 	267, 	85 LRRM
2945 	(1974), 	the United States 	Supreme Court held that 	it was
the 	intention 	of 	Congress 	to 	exclude 	all managerial 	employees
18 NLRB v. 	Flintkote Co., 	217 NLRB No. 	85, 	89 LRRM 1295, 	1297
(1975)
-14-

from the ambit of the NLRA. 	Apparently, 	because of this, 	the
NLRB has been reluctant to find that an employee is a
management employee when the facts in the record do not
clearly establish that 	the employee is closely allied with
management.1919
In California, 	the EERA provides that managerial
employees are not considered employees for the purposes of the
Act,2020 and they do not have the same negotiating rights as 	do
the regular employees.21 Because of this, 	the EERB has held
that great 	care must be 	exercised in determining who 	shall be
considered a management employee. 22
The department chairpersons at Hartnell Community
College 	do not have significant responsibilities 	in forming
district policy. 	They are not part of the administration of
the District. 	All but two of them are instructors. 	The main
19 NLRB v. 	New York University, 	221 NLRB 1148, 	91 LRRM 1165,
TT7T 	(1975)
20
Government Code Section 3540.l(j) 	provides:
"Public school employee" or "employee" means any
person 	employed by any public 	school 	employer
except persons elected by popular vote, 	persons
appointed by the Governor of this state, manage-
ment employees, 	and confidential employees.
21
Government Code Section 3543.4 provides:
No person serving in a management position or a
confidential position shall be represented by
an exclusive representative. 	Any person serving
in such a position shall have the right to rep-
resent himself individually or by an employee
organization whose membership is 	composed entirely
of employees designated as holding such positions,
in his employment relationship with the public
school employee, but, 	in no case, 	shall such an
organization meet and negotiate with the public
school employer. 	No representative shall be
permitted by a public school employer to meet
and negotiate on any benefit or compensation paid
to persons 	serving in a management position or a
confidential position.
22 Oakland Unified School District, 	EERB Decision No. 	15,
March 28, 1977 at 7.
-15-

responsibilities 	of the 	department 	chairpersons 	are: 	determining
the 	department budget, 	formulating 	the 	department 	curriculum,
making a schedule 	of the 	classes 	in their 	departments, 	and
setting 	up 	and heading the 	committee 	for 	hiring 	and 	evaluating
instructors within 	their 	department. 	At 	department 	faculty
meetings, 	the 	chairperson 	solicits 	ideas 	on these matters 	from
the 	faculty members, 	thus 	acting primarily as 	an 	instrument of
the 	faculty. 	When 	decisions 	are made 	they must be 	approved by
the District.
On 	the 	other hand, 	proposals 	for 	district policy
are made by the academic 	senate, 	the 	associated 	student body,
and the president's 	advisory committee. 	The. department 	chair-
persons 	sit 	on the president's 	advisory committee, 	while 	they
do not 	sit 	on 	the 	academic 	senate nor 	do 	they 	sit 	on 	the
associated 	student body. 	The proposals 	of 	these 	committees
are presented 	to 	the 	governing board which makes 	the 	final
decision on most 	of 	the 	district 	policies.
In 	sum, 	the 	department chairpersons 	are as much
the voice 	of the 	faculty 	as 	they are 	of the District. 	They
do not have 	significant 	responsibilities 	for 	formulating
district 	policy.
The 	department 	chairpersons 	also 	do not have
significant 	responsibilities 	for administering 	district 	programs.
"Significant" 	can be 	defined as 	"having meaning," 	"full 	of
import," 	"having or 	likely to have 	influence 	or effect,"
"deserving to be 	considered," 	"important," 	"weighty," 	"notable."23
Because 	of 	the reluctance of 	the NLRB 	and 	the EERB 	to 	designate
employees as management employees, 	"significant responsibilities"
should apply to 	those responsibilities which are more 	than just
23
Webster's 	Third New 	International 	Dictionary.
-16-

routine and nondiscretionary. 	The EERB in Lbs Rios held that
an employee does not have significant responsibilities for
administering district programs when "the administrative duties
consist primarily of assuring compliance with the policy, 	and
there is no discretion to deviate from the policy.24	24
In Hartnell Community College, when the district
policy concerns an area of instruction, 	the dean of instruction
and the department chairperson administer it. 	If the policy
affects one department, 	just the department chairperson
administers it. 	It appears that the department chairperson's
responsibilities 	consist mainly of communicating the district
policy to the faculty in their department, 	and seeing to it
that the district policies are complied with. 	For purposes of
Government Code Section 3540.l(g), 	these are not significant
responsibilities for administering district programs.
The department chairpersons at Hartnell Community
College District perform neither of the 	functions delineated
in Government Code Section 3540.l(g). 	They are not management
employees. 	Therefore, 	the department chairpersons should be
included in the regular certificated negotiating unit.
PROPOSED DECISION
It is the proposed decision that:
The following unit is appropriate for the purpose
of meeting and negotiating, 	providing an employee organization
becomes the exclusive representative of the unit:
Certificated Employee Unit consisting of all 	full-
time regular and contract certificated employees, 	all part-time
certificated employees who have taught at least the equivalent
of three semesters out of the last six semesters inclusive,25
N 24	2' Los Rios at 19.
25 As used in this proposed decision the word "inclusive" means
that an instructor who is presently teaching for a third
semester, 	under this formula, would also be considered eligible
-17-
25
25

and all department chairpersons, and excluding all management,
supervisory and confidential employees.
The parties have seven (7) calendar days from
receipt of this proposed decision in which to file exceptions
in accordance with Section 33380 of the Board's Rules and
Regulations. If no party files timely exceptions, this proposed
decision will become a final order on July 26, 1977, and a
Notice of Decision will issue from the Board.
Within ten (10) workdays after the employer posts
the Notice of Decision, the employee organization shall demon-
strate to the Regional Director at least 30 percent support in
the above unit. The Regional Director shall conduct an election
at the end of the posting period if the employee organization
qualifies for the ballot and the employer does not grant voluntary
recognition.
Dated: July 15, 1977
Hearing Officer
-18-
and all 	department 	chairpersons, 	and excluding 	all management,
supervisory and 	confidential 	employees .
The parties have 	seven 	(7) 	calendar days 	from
receipt 	of 	this 	proposed decision 	in which 	to 	file 	exceptions
in accordance with Section 33380 	of 	the 	Board ' s 	Rules 	and
Regulations . 	If no party files 	timely exceptions, 	this 	proposed
decision will become a 	final 	order on July 26, 	1977, 	and a
Notice 	of 	Decision will 	issue 	from 	the 	Board.
Within 	ten 	(10) 	workdays 	after 	the 	employer posts
the Notice 	of Decision, 	the 	employee 	organization 	shall 	demon-
strate 	to 	the 	Regional 	Director 	at 	least 	30 	percent 	support 	in
the above 	unit . 	The 	Regional 	Director 	shall 	conduct 	an 	election
at 	the 	end of 	the 	posting period 	if 	the 	employee 	organization
qualifies 	for 	the 	ballot 	and 	the 	employer 	does 	not 	grant voluntary
recognition.
Dated : 	July 15, 	1977
Ronald E. Blubaugh
Hearing 	Officer
-18-
Ronald E. 	BlubaughT 	--- --