Oakland Unified School District (PERB 0320E)

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STATE OF CALIFORNIA
DECISION OF THE

PUBLIC EMPLOYMENT RELATIONS BOARD

OAKLAND UNIFIED SCHOOL DISTRICT,
Case No. SF-UM-154

Employer, (R-200A)
and PERB Decision No. 320
OAKLAND EDUCATION ASSOCIATION/CTA/NEA, June 20, 1983

Employee Organization.

Appearances: Ember Lee Shinn, Attorney for the Oakland
Unified School District; Kirsten L. Zerger, Attorney, ana
Michael J. Zaidel, Law Clerk, for the Oakland Education
Association, CTA/NEA.

Before Gluck, Chairperson; Tovar and Morgenstern, Members.
DECISION
TOVAR, Member: The Oakland Education Association, CTA/NEA
(Association) filed a unit modification petition with the
Public Employment Relations Board (PERB or Board) to add all
regular certificated substitute teachers who substitute for
Unit A members in the Oakland Unified School District

(District) into Unit A.1 The petition was accompanied by

1The description of Unit A as certified by PERB on
June 3, 1977 is as follows:

All certificated employees, including
counselors, psychologists, and teachers on
special assignments; excluding children's
center teachers, children's center teachers'
assistants, children's center assistant
supervisors, K-12 and children's center
substitute teachers, management, supervisory
and confidential employees.

proof of support by a majority of employees in the unit
requested. The District filed a statement of opposition to the
Association's petition on November 19, 1980.
After a hearing on the matter, the hearing officer granted
the petition and ordered that the certificated unit, Unit A, be
modified to include all substitute teachers who substitute for
teachers in Unit A. The District excepts to such a finding.
The Board has reviewed the record in this case and
concludes that the hearing officer's findings of fact as set
forth in the proposed decision, attached hereto, are free of
prejudicial error and are adopted by the Board itself.2 The
Board further affirms the hearing officer's conclusions of law
to the extent they are consistent with the discussion below.
DISCUSSION
In Palo Alto Unified School District/Jefferson Union High
School District (1/9/79) PERB Decision No. 84, the Board held
that substitute teachers are employees under the Educational
Employment Relations Act (EERA).3 Consequently, the main
issue which needs to be resolved in this case is whether
2The hearing officer incorrectly found that there were
approximately 6,000 certificated employees in the District. We
affirm the District's exception and find that there are
approximately 9,000 employees in the District: approximately
3,000 certificated and 6,000 classified.
3The EERA is codified at Government Code section 3540
et seq. All code references are to the Government Code unless
otherwise specified.

substitute teachers have a sufficient community of interest
with the certificated employees for whom they substitute to
warrant inclusion in the same unit.
Subsections 35 4 5 (a) and (b) of EERA set forth the standards
for determining the appropriateness of a units
(a) In each case where the appropriateness
of the unit is an issue, the board shall
decide the question on the basis of the
community of interest between and among the
employees and their established practices
including, among other things, the extent to
which such employees belong to the same
employee organization, and the effect of the
size of the unit on the efficient operation
of the school district.
(b) In all cases:
(1) A negotiating unit that includes
classroom teachers shall not be
appropriate unless it at least includes
all of the classroom teachers employed
by the public school employer, except
management employees, supervisory
employees, and confidential employees.
The Board has interpreted these provisions to create a
rebuttable presumption that all classroom teachers will be
contained in a single unit. Peralta Community College District
(11/17/78) PERB Decision No. 77. The District in this case
argues that the potential for disruption standard must be
considered before the application of the Peralta presumption.
The Peralta presumption favoring a comprehensive teacher unit
applies to the question of proper unit placement of substitute
teachers, and a single unit will be directed unless disparate

community of interest exists or such application would cause
disruption or instability within an already established unit.
Therefore, the question of disruption is part of the Peralta
test. See Palo Alto/Jefferson, supra, Oakland Unified School
District (9/20/79) PERB Decision No. 102.
Community of Interest
To determine whether a community of interest exists among
employees, the Board considers the following criteria: method
of compensation, wages, hours, employment benefits,
supervision, qualification, training and skills, contact and
interchange with other employees. Office of Santa Clara County
Superintendent of Schools (7/19/78) PERB Decision No. 59.
Also, prominent among the various interest factors is job
function. Rio Hondo Community College District (1/25/79) PERB
Decision No. 87.
The evidence shows that substitute teachers are called upon
to perform nearly all of the job functions of regular
teachers. A substitute might administer regular classroom
tests as well as standardized tests, grade papers and tests,
make lesson plans, provide resource materials, put up bulletin
boards, arrange and supervise field trips, participate in
extra-curricular activities, supervise aides, participate in
disciplinary conferences, participate in parent-teacher
conferences and open house, attend faculty meetings and
in-service workshops, offer input into the final semester

grades, fill out report cards and fill in information on the
cumulative folders. Substitutes teach the same subjects to the
same students in the classrooms. They have regular contact
with the teachers whom they replace, as well as with other
teachers in the school.
As noted in Oakland, supra:
"Substitutes are an integral part of the
instructional function of the District,
performing the same work and under the same
general conditions as do the teachers they
replace. They teach the same courses, deal
with the same students and perform as
circumstances require, virtually all of the
replaced teacher's duties. . . . The very
word 'substitute' defined as 'one who takes
the place of another,' testifies to such
community."
The District attempts to refute the presumption supporting
the inclusion of substitutes into Unit A by pointing to various
"differences between the regular and substitute teachers which
destroys any community of interest between them." These
include:
Wage and fringe benefit differences. PERB in the past has
not found this factor persuasive standing alone since for all
practical purposes the hours, wages and other terms and
conditions of employment are mainly within the District's
control. Consequently, differences in wages and hours do not
negate a finding of appropriateness because these are
conditions previously imposed unilaterally and may well be the
policies the employees wish to change through negotiations.

See, Redwood City Elementary School District (10/23/79) PERB
Decision No. 107.
No reasonable expectation of continued employment. The
Board has held that it is reasonable for substitute teachers as
a class to expect future employment given that the school
employer repeatedly employs substitutes as a regular and
integral part of the work force. See Dixie Elementary School
District (8/11/81) PERB Decision No. 171.
Potential conflict of interest between substitutes and
Unit A members. The District offers two examples: First, the
District made conclusory statements that there would be a
potential conflict between substitutes and regular teachers
because teachers who are ill and have exhausted their sick
leave receive the difference between their salary and the
salary paid to the substitute who was employed to replace
them. We have no evidence that this conflict in some
substantial way diminishes the community of interest between
the substitutes and regular teachers. There was testimony that
in practice this has never been a problem in the District
because the Association has obtained proportional wage
increases for teachers as well as substitutes.
Second, there also was no evidence presented to support the
allegation of a potential conflict between substitutes and
Unit A members due to the "evaluative"4 nature of the
4The District claims that, since Unit A members have the

teachers' right to request a substitute. Although the existing
contract permits teachers to request specific substitutes, that
request can be denied by the District administration.
Therefore, Unit A members do not have ultimate control over who
is selected as a substitute for their classrooms.
Differences in Credentialed Status
The District also asserts that somehow there is no
community of interest between substitutes and regular teachers
because currently a large percentage of substitutes hold
emergency credentials.5 The District claims that emergency-
credentialed substitutes do not share the same devotion to
right to request a substitute, this puts Unit A teachers in an
"evaluative" relationship with the substitute. This term may
be misleading, since it is the site administrators, such as
principals, who generally evaluate the substitutes.
5Education Code section 44254 provides:
Emergency credentials may be issued in
accordance with regulations adopted by the
commission.
The terms, reasons, and justification for
the issuance of such credentials shall be
regularly reported to the Legislature, as
well as their number, kind, and other
pertinent information. Emergency
credentials shall only be authorized when
insufficient certified teachers are
available.
An emergency credential may not be issued
unless the holder has completed at least 90
semester units of college work. Emergency
credentials for pupil personnel services
shall not be valid for the purpose of

teaching as a profession as do regular certificated teachers
and are also less competent. First of all, the issue of
competency is not a criterion for proper unit placement. While
substitutes and regulars may have different credentials, this
does not overcome the community of interest we have found them
to have. In addition, emergency credentialed substitutes meet
the established statutory requirements, supra.
In reviewing the community of interest criteria, we note
that the Association has a history of representing the
substitute teachers. Since the enactment of EERA, the District
had informally recognized the Association as the de facto
representative of substitutes in informal grievances, salary
disputes, and other employer-employee problems. Substitutes
also participate within the Association through their
substitute caucus.
Interference with the Efficiency of Operations and Disruption
Issues.
The District argues that inclusion of substitutes in the
existing bargaining unit would be disruptive primarily because
the existing collective bargaining agreement will have to be
determining pupil eligibility for placement
in special education classes or programs.
With the exception of this chapter, any
reference in any law or regulation to a
"provisional credential" shall be deemed to
mean an "emergency credential."

substantially revised. The Board in El Monte Union High School
District (10/20/80) PERB Decision No. 142 approved the
inclusion of substitutes into the existing bargaining unit
stating:
. . . negotiation of a supplementary
agreement covering the petitioned for
employees imposes no greater burden on the
parties than would the negotiation of a
separate agreement. Nor, in the future, do
negotiations covering all employees in the
modified unit present any more potential for
disruption than bifurcated negotiations
covering two separate units. (At page 11)
In the instant case, the District would have an obligation
to negotiate regardless of whether substitutes were placed in a
separate unit or folded into the existing unit.
Thus, having to negotiate additional provisions of an
existing contract is not in and of itself disruptive. Oakland
Unified School District (9/20/79) PERB Decision No. 102.
Additionally, there is no disruption since the District is not
obligated to reopen matters applicable to regular teachers.
The Board rejected a similar disruption argument in Dixie
Elementary School District (8/11/81) PERB Decision No. 171,
indicating that: "while it may be that additional issues now
will have to be addressed as part of collective bargaining,
such a burden cannot be avoided under the Act."
While the diversity that already exists in the District in
terms of the types of employees that are covered and portions
of the contract that relate to different groups within

Unit a 6may lead to complex negotiations, it does not rise to
the level of disruption.
In addition, the District states there would be a
"potential for disruption" by including over 1,000 substitutes
into a unit of approximately 3,000 employees. Presumably, the
District implies that the inclusion of such a large number of
substitutes would disrupt the negotiation process. We reject
this conclusory assertion on the part of the District because
we have already found that there exists a community of interest
among substitutes and regular teachers.
Finally, although it doesn't specify the consequence of the
numerical variance, the District disputes the hearing officer's
figures on the exact number of active substitutes. We find
this argument irrelevant to the issues at hand. A sufficient
showing of support was demonstrated by the Association at the
appropriate time based on data provided by the District. The
District has admitted that the figures it advanced at the
hearing were inflated and contained overlap. In determining
units the Board deals with classifications, not overall number
of employees. We therefore find this argument irrelevant.
6 The current contract covering Unit A employees includes,
for example, different salary schedules for psychologists, a
ten-month work year for K-12 versus a twelve-month work year
for all other Unit A members, and fewer preparation periods for
some teachers.

Although the District argues that the crossover among
bargaining units will pose an added administrative burden in that
the pool of substitute teachers who substitute for Unit A
teachers also substitute for Unit B teachers and hourly adult
education teachers, it completely failed to demonstrate how this
crossover would pose an administrative burden on its operations.
Moveover, "crossover" employees are common in private sector
employment. The National Labor Relations Board (NLRB) considers
employees who perform two kinds of tasks to be "dual-function"
employees. NLRB policy is to include these employees in the
requested unit if they have sufficient interest in the unit's
conditions of employment, even if they spend less than 50 percent
of their time in unit work. Berea Publishing Co. (1963) 140 NLRB
516 [52 LRRM 1051]. Employees who perform functions tor more
than one unit are entitled to representation in both units if
necessary. Inconvenience to the employer is not a factor. As
the NLRB explained in Berea, supra;
[W]e can perceive no distinction between the
part-time employee who may work for more
than one employer, and the employer [sic]
who performs dual functions for the same
employer. We believe the policies of the
[NLRA] are best effectuated by according to
each the same rights and privileges in the
selection of the majority representative for
the unit in which he works. Id., at 1053.
Finally, the District excepts to the hearing officer' s proposed
order granting the unit modification to include "all substitute

teachers who substitute for teachers in Unit A . "7 It argues
that it is unclear what the terra "regular" certificated
substitutes means. This exception is without merit.
Irrespective of the petition, the testimony and evidence
presented at the hearing by the Association and the District
pertained to all substitutes.8 The District produced no
evidence at the hearing to indicate that the term "regular"
substitutes would not include all of the substitutes. In fact,
the District's own post-hearing brief characterizes the
Association's petition as follows: "The Association has
petitioned for all those substitute teachers who perform Unit A
work." at p. 40 (emphasis supplied). The District's own
statement is an admission demonstrating it understood that all
substitutes were at issue in this proceeding. We, therefore,
find the hearing officer's proposed order appropriate since the
matter has been fully litigated, and find the District to have
waived any defect in the petition.
7The petition sought to include "all regular certificated
substitute teachers."
8The Association clearly intended to include all
substitutes in its petition. in the Association's post-hearing
brief, their statement of the case indicates they filed a
request to modify its Unit A "to include all certificated
substitute teachers." p. 3. (Emphasis supplied.)
The Association has consistently sought to represent all
certificated substitute teachers. See Oakland Unified School
District (3/28/77) EERB No. 15, and Oakland Unified School
District (9/20/79) PERB No. 102.

CONCLUSION
There is extensive evidence of an existing community of
interest among substitutes and the employees they replace, and
there is little or no evidence indicating that placing the
substitutes into Unit A would create disruption in employee
relations or interfere with the efficiency of the District's
operations. Consequently, we find the District did not
sufficiently rebut the Peralta presumption and, therefore,
grant the petition for unit modification.
ORDER
The unit modification petition filed by the Oakland
Education Association, CTA/NEA is hereby GRANTED. Unit A, the
certificated unit, is therefore modified to include all
substitute teachers who substitute for teachers in Unit A.
Member Morgenstern joined in this Decision.
Gluck, Chairperson, concurring: The community of interest
inherent in the comparability of the work and working
conditions of substitutes and those teachers whose places they
take is manifest. See Oakland Unified School District (9/20/79)
PERB Decision No. 102, pp. 10-11. The District has provided no
persuasive evidence of significant dissimilarities which would
preclude placing both groups in the same unit. Its contention
that substitutes are neither as loyal nor competent as regular
teachers even if relevant to the issues here, reflects an
unsubstantiated opinion. The issuance of credentials, even on

an emergency basis, establishes that the State considers the
recipients sufficiently competent to teach in place of regular
teachers. Assuming, without so finding, that the District's
"loyalty test" is pertinent, respondent has not shown how this
alleged shortcoming would preclude carrying on meaningful
negotiations.
The District's claim that inclusion of the substitutes
would tend to disrupt negotiations and interfere with the
efficiency of its own operations amounts, in light of the
evidence it offers, to the suggestion that it may have to
endure a certain amount of inconvenience if the petition is
granted.
I agree that wage differentials, by themselves, are of
little probative value in determining unit appropriateness.
Beyond the fact that they result from unilateral employer
action, and may be modified in subsequent negotiations, it is
not the differential itself which bears witness to the matter
of community of interest, but what the differential signifies.
In the private sector, distinctions in pay practices, such as
weekly salary compared to hourly wages, often reflect a lack of
operational interrelationship. The example of salaried office
workers and hourly-paid production and maintenance workers
comes to mind. Similar distinctions have been made between
exempt and covered employees. But, where pay differences, as
here, are based primarily, if not solely, on the permanent or

temporary status of employees who perform the same work for the
employer, they cannot prevail against explicit evidence of
community of interest.
The District has failed to overcome the Peralta
presumption and the petition should be granted.

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
OAKLAND UNIFIED SCHOOL DISTRICT,
Employer,
-and-
OAKLAND EDUCATION ASSOCIATION/CTA/NEA,
Employee Organization.
Representation
Case No. SF-UM-154
(R-200A)
PROPOSED DECISION
(1/26/82)
Appearances: Ember Lee Shinn, Attorney for the Oakland Unified
School District; Kirsten L . Zerger, Attorney for the Oakland
Teachers Association/CTA/NEA.
Proposed Decision by Jerilyn A. Gelt.
PROCEDURAL HISTORY
On October 23, 1980, the Oakland Education
Association/CTA/NEA (hereafter Association) filed a unit
modification petition with the Public Employment Relations
Board (hereafter PERB or Board) to add all regular certificated
substitute teachers who substitute for Unit A members in the
Oakland Unified School District (hereafter District) to Unit
A . 1 The petition was accompanied by proof that a majority
1The description of Unit A as certified by the PERB on
June 3, 1977 is as follows:
All certificated employees, including
counselors, psychologists, and teachers on
special assignments; excluding children's
center teachers, children's center teachers'
assistants, children's center assistant
supervisors, K-12 and children's center
substitute teachers, management, supervisory
and confidential employees.

of the employees in the unit requested supported the petition.
On November 19, 1980, the District filed a statement of
opposition in response to the unit modification petition with
the PERB. The District based its opposition on two grounds:
first, on the grounds of res judicata, contending that the
matter had already been litigated and decided by the PERB in
Oakland Unified School District (9/25/79) PERB Decision No.
102;2 and, second, that there was not a community of interest
between substitutes and the regular teachers.
An informal conference was scheduled by the PERB to be held
on February 27, 1981. The conference was cancelled by the
parties because they had scheduled a meeting for March 12, 1981
to attempt to reach a settlement. No agreement was reached and
further numerous communications between the PERB and both
parties resulted in a determination that a formal hearing was
necessary to resolve the issue. The hearing was held on June
9th and 10th, 1981 at the District Office. Briefs were filed
and the case was submitted for decision on August 24, 1981.
FINDINGS OF FACT
The District has an enrollment of approximately 48,000
students in regular classes and approximately 14,000 students
in its adult education program. Approximately 6,000
2This position was apparently abandoned by the District,
as it was not raised either during the hearing or in its
post-hearing brief.

certificated employees are employed in the District and
constitute three separate bargaining units: (1) Unit A,
comprised of regular certificated employees; (2) Unit B,
comprised of certificated Children's Centers employees; and (3)
Unit C, comprised of certificated hourly adult education
employees. The Association is the exclusive representative of
both Units A and B , and the United Teachers of Oakland, AFT,
AFL-CIO represents the employees in Unit C.
The District maintains a card file of substitute teachers
numbering approximately 500-600 for the 1980-81 school year.
Testimony was vague and somewhat contradictory concerning the
exact composition of the files, i.e., whether cards for active
and inactive substitutes were kept separately, how frequently
the inactives were purged, and whether or not an indication was
made on a card when a substitute no longer wished to work for
the District. A new card file is created each year, and the
District sends letters to the active substitutes to remind them
to register for the new school year. Applications are also
taken from new substitutes each year.
Approximately 50 percent of the substitutes who work in the
District hold a valid California teaching credential, while the
rest hold an emergency credential.3
3Education Code section 44254 provides:
Emergency credentials may be issued in
accordance with regulations adopted by the

There are at least two types of emergency credentials, each
allowing the holder different employment opportunities. The
first type, which has, as a minimum requirement, completion of
90 hours of college coursework in any subject matter, allows
the substitute to work only 30 days in any one position. An
exception to this may occur when the teacher whom the
substitute is replacing is unable to return for the remainder
of the school year; then the assignment may be prolonged in
order to allow the substitute to finish out the school year. A
second type of emergency credential may be obtained by a person
commission.
The terms, reasons, and justification for
the issuance of such credentials shall be
regularly reported to the Legislature, as
well as their number, kind, and other
pertinent information. Emergency
credentials shall only be authorized when
insufficient certified teachers are
available.
An emergency credential may not be issued
unless the holder has completed at least 90
semester units of college work.
Emergency credentials for pupil personnel
services shall not be valid for the purpose
of determining pupil eligibility for
placement in special education classes or
programs.
With the exception of this chapter, any
reference in any law or regulation to a
"provisional credential" shall be deemed to
mean an "emergency credential".

who is enrolled in a specific college program which leads to a
regular teaching credential. In this case, according to
testimony by Dr. Robert Rottman, Director of Personnel, the
substitute would not be limited to 30 day assignments. There
are also emergency credentialed substitutes who hold college
degrees.
Substitutes are expected to carry on the work of the
teacher whom they are replacing in the classroom. If the
teacher has left a lesson plan, the substitute is expected to
follow it. If there are no lesson plans, the substitute will
make his/her own lesson plans. Substitutes administer tests,
both standardized and those developed from their own material.
They correct and grade tests and day-to-day assignments, and
record grades on report cards. Substitutes maintain bulletin
boards, keep attendance records, perform yard-duty, accompany
students on field trips and participate in extra-curricular
student activities. Substitutes are expected to attend faculty
meetings, especially when their assignment is long-term. They
attend parent-teacher conferences and discipline students when
necessary. It is a regular practice for substitutes to leave a
note for the returning teacher regarding what has taken place
in the classroom in his/her absence.
Substitutes perform the same tasks as regular teachers when
opening the classroom at the beginning of the school year and
closing it at the end of the school year. They fill out

cumulative folders for students, including recommendations
therein as to whether or not to pass students. Substitutes
supervise instructional aides and assign work to them as do
regular teachers.
Substitutes may develop instructional materials to aid them
in the classroom. One substitute, who had taught as a regular
teacher for over 30 years, served on a curriculum development
committee while employed as a substitute in the District.
Day-to-day substitutes are paid $47.00 per day; long-term
substitutes are paid $57.00 per day; and adult education
substitutes are paid at an hourly rate of $15.53. Substitutes
receive no fringe benefits, leaves or District-sponsored
retirement.
Both substitute teachers and regular teachers are
supervised and evaluated by the same on-site administrators.
Although District policy requires that a substitute be
evaluated after 5-10 days in one assignment,4 actual practice
has been to evaluate them only after they have served 20 days
in the same assignment, thus becoming long-term and eligible
for a higher rate of pay.
4D istrict Exhibit #1, Administrative Bulletin 8080, calls
for evaluation of substitutes after 10 days in one assignment.
District Exhibit #4, Substitute Teacher Handbook, published
more recently by the Personnel Office, calls for evaluation
after 5 days.

DISCUSSION
The District argues that substitutes should not be placed
in the same bargaining unit as regular teachers for reasons
stated below, but that they should be placed in a separate
bargaining unit. The Association filed a petition to represent
a separate unit of substitutes on September 1, 1977. The
District argued against the appropriateness of the proposed
unit, contending that substitutes were not "employees" within
the meaning of section 3540.1(j) of the Educational Employment
Relations Act (hereafter the Act or EERA),5 because they had
no written contracts and were not employed in "positions" as
that term is used in the Education Code. Citing Palo Alto
Unified School District/ Jefferson Union High School District
(1/9/79) PERB Decision No. 84, the Board held that the
substitute teachers are employees under the EERA. However, a
majority of the Board did not agree that the substitute
teachers constituted an appropriate separate unit and the
5The Educational Employment Relations Act is codified at
Government Code section 3540, et. seq. All section references
herein are to the Government Code unless otherwise stated.
Section 3540.1 (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, management employees, and
confidential employees.

Association's petition was rejected. Oakland Unified School
District (9/20/79) PERB Decision No. 102.
There have been no appreciable changes in the nature of
duties performed by substitute teachers nor their community of
interest with regular classroom teachers since the separate
unit petition was rejected in 1979.
Hence, the only issue to be determined in this case is the
appropriateness of adding substitutes to the regular
certificated unit (Unit A).
Sections 3 5 4 5 (a) and (b) of the EERA set forth the
standards for determining the appropriateness of a unit:
(a) In each case where the appropriateness
of the un it 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 ex tent 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) (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.
In interpreting these provisions, the Board has set up a
rebuttable presumption that all classroom teachers be contained

in a single unit.6
The District, in the instant case, argues that substitutes
do not share a community of interest with the regular teachers,
that established past practices indicate that the proposed
modification would be disruptive to employer-employee relations
in the District, and that the modification would adversely
affect the efficiency of the District's operations.
The District's contention that substitutes do not share a
sufficient community of interest with the regular teachers to
be included in the same unit is based on evidence that
substitutes are paid different wages by different methods than
the teachers, that they have different hours of employment
(e.g., days worked per year, discretionary preparatory
periods), that they receive no benefits, and that they are
supervised by different administrators regarding grievances and
termination. The Board has held, however, that compensation
and fringe benefits are within the control of the District a n d ,
by themselves, do not warrant a finding of a lack of community
of interest El Monte Union High School District (10/20/80) PERB
Decision No. 142. Furthermore, testimony was given that some
or all of these differences exist for other categories of
employees already contained in Unit A. As to the similarity in
6Peralta Community College District (11/17/78) PERB
Decision No. 77.

job function between substitutes and regular teachers, the
facts indicate that they are required to carry out almost all
of the same duties and responsibilities that a regular teacher
performs. They teach the same subjects to the same students in
the same classrooms. They have regular contact with the
teachers whom they replace, as well as with other teachers in
the school. They form an integral part of the work force in
the District and, as such, share a well-established community
of interest with the other members of Unit A.
One premise upon which the District opposes the unit
modification petition is that the majority of its substitute
pool holds emergency credentials rather than full teaching
credentials and would thus be ineligible to work in the
capacity of a regular teacher. However, there is no
distinction made between the work that an emergency
credentialed substitute is expected to perform and the work
that a fully credentialed substitute is expected to perform as
discussed above. The District's argument, then, is without
merit.
In advancing established past practices as an argument
against the proposed modification, the District refers to the
lengthy and complicated negotiations between the Association
and the District over the Un it A contract. No evidence was
given, however, that the addition of substitutes would create
any more complications than those created by any of the diverse

categories of employees already contained in the unit. In
Dixie Elementary School District (8/11/81) PERB Decision No.
171, the Board addressed this argument as follows:
Moreover, while it may be that additional
issues now will have to be addressed as part
of collective bargaining, such a burden
cannot be avoided under the Act.
Substitutes and temporary teachers are
"employees" under the EERA (Palo
Alto/Jefferson); it would facilitate the
negotiation process to address the interests
of these teachers in a combined rather than
a separate unit.
Furthermore, the District has, in the past, informally
recognized the Association as a representative of substitutes
in informal grievances, salary disputes and other problems
involving employer-employee relations.
Arguing that the proposed modification would adversely
affect its efficiency of operations, the District contends that
conflicting interests between the substitutes and teachers
would pose serious problems in areas such as salary, the right
of teachers to request particular substitutes and leaves of
absence. T h is argument was not supported by evidence and is
purely speculative.
CONCLUSION
Sufficient evidence has been produced to conclude that
substitute and regular teachers constitute an appropriate
unit. They share a sufficient comm unity of interest and the
evidence did not indicate that the proposed modification would

be disruptive or have a negative effect on the District's
efficiency of operations. To deny the instant petition would
deny representation rights to these employees, especially in
light of the fact that a separate unit of substitutes has been
petitioned for and denied.7 Therefore, the addition of
substitute teachers to the regular certificated unit is found
to be appropriate.
PROPOSED ORDER
The unit modification petition filed by the Oakland
Education Association/CTA/NEA is hereby granted. Unit A, the
certificated unit, is therefore modified to include all
substitute teachers who substitute for teachers in Unit A.
Pursuant to California Administrative Code, title 8, part
I I I , section 32305, this Proposed Decision and Order shall
become final on February 15, 1982, unless a party files a
timely statement of exceptions. See California Administrative
Code, title 8, part III, section 32300. Such statement of
exceptions and supporting brief must be actually received by
the executive assistant to the board itself at the headquarters
off ice in Sacramento before the close of business (5:00p.m.) on
February 15, 1982, in order to be timely filed. See California
Administrative Code, title 8, part I I I , section 32135. Any
statement of exceptions and supporting brief must be served
7Oakland, supra.

concurrently with its filing upon each party to this
proceeding. Proof of service shall be filed with the PERB
itself. See California Administrative Code, title 8, sections
32300 and 32305, as amended.
Dated: January 26, 1982
Jerilyn G elt
Hearings Officer