Los Gatos Joint Union High School District (PERB 0355E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

LOS GATOS JOINT UNION HIGH SCHOOL
DISTRICT,

Case No. SF-UM-230
(SF-R-488)

Employer,

and
PERB Decision No. 355
LOS GATOS JOINT UNION HIGH SCHOOL

DISTRICT TEACHERS ASSOCIATION, CTA/NEA, November 14, 1983

Employee Organization.

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Appearances: Paul M. Loya, Attorney (Atkinson, Andelson, Loya,
Ruud and Romo) for Los Gatos Joint Union High School District;
Ramon E. Romero, Attorney for Los Gatos Joint Union High School
District Teachers Association, CTA/NEA.

Before Tovar, Jaeger, and Burt, Members.
DECISION

JAEGER, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed to the
attached proposed decision by both the employee organization,
Los Gatos Joint Union High School District Teachers
Association, CTA/NEA (Association) and the employer, the
Los Gatos Joint Union High School District (District). In his
proposed decision, the Administrative Law Judge (ALJ) granted
the Association's petition filed pursuant to former PERB rule

32261 (a) (1)1 to modify the existing certificated unit to

lat the time that this case arose, PERB rule 33261 (a) (1)
provided:

(a) A recognized or certified employee
organization may file with the regional

include driver training instructors and to exclude the position
of driver training coordinator from the unit as supervisory
within the meaning of section 3540.1 (m) of the Educational
Employment Relations Act (Act) . 2
We have reviewed the ALJ's proposed decision in light of
the parties' exceptions, and the entire record in this
office a petition for unit modification
pursuant to Government Code section
3541.3 (e) :
(1) To add to the unit unrepresented
classifications or positions which
existed prior to the recognition or
certification of the current exclusive
representative of the unit.
In his proposed decision, the ALJ inadvertently cited to
PERB rule 32781 (a) (1) , which was enacted after the unit
modification petition was filed in this case. This miscitation
was a harmless error and does not affect the outcome of the
case .
2section 3540.1 (m) provides:
As used in this Chapter:
(m) 	"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 foregoing functions, the
exercise of such authority is not of a
merely routine or clerical nature, but
requires the use of independent judgment.
N

matter, and finding it free from prejudicial error, adopt it as
the decision of the Board itself.
In its exceptions, the District asserts an argument made
for the first time in its post-hearing brief that the
Association violated subsection 3543.6 (b) when Driver Training
Coordinator "Lefty" Lefkowitz signed the Association's proof of
support petition to include the driver training instructors in
the certificated unit. The hearing officer refused to rule on
this contention, asserting that he had no jurisdiction to
adjudicate an unfair practice charge in the course of a unit
modification hearing. The District argues that the hearing
officer did have jurisdiction to hear this allegation and that
the Board should find that the unit modification was improper
because of Mr. Lefkowitz's "supervisory interference" in the
free choice of driver training instructors.
While the hearing officer is correct that a party may not
file an unfair practice charge by way of a post-hearing brief,
there is no question that an employer may raise by way of
affirmative defense to a unit modification request, the
argument that the proof of support was inadequate or somehow
tainted by fraud or illegality. However, in this case, the
District's argument that the Association's proof of support was
rendered ineffective by "supervisory interference" is
groundless. In the first place, Lefkowitz was not a
"supervisor" within the meaning of the Act when he signed the
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proof of support petition; rather, he was simply a
rank-and-file member of the unit. Therefore, at the time of
this allegedly unlawful conduct his actions could not have
constituted "supervisory" interference. At most, Lefkowitz, as
a rank-and-file member of the unit improperly signed a proof of
support and his signature could not be included in the
determination of whether a sufficient number of employees
supported the unit modification. There is no allegation,
however, that the proof of support was inadequate without
Lefkowitz's signature. Nor is there any substance to the
District's argument that by signing the proof of support,
Lefkowitz, a union member, unlawfully interfered with the "free
choice" of bargaining unit members. 	There is absolutely no
evidence in the record that other employees even knew that
Lefkowitz had signed the petition, let alone felt that their
free choice was affected by his conduct.
ORDER
Based upon the foregoing findings of fact, conclusions of
law and the entire record in this matter, it is hereby ORDERED
that:
1 . 	The petition for unit modification by the Los Gatos
Joint Union High School District Teachers Association, CTA/NEA
shall be granted, thereby adding driver training instructors to
the established unit represented by the Association.

2. 	The position of driver training coordinator is a
supervisory position within the meaning of Government Code
section 3540.1(m) and is therefore excluded from the
established certificated unit.
Members Tovar and Burt joined in this Decision.

STATE OF CALL
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS GATOS JOINT UNION HIGH SCHOOL
DISTRICT,
Employer ,
and
LOS GATOS JOINT UNION HIGH SCHOOL
DISTRICT TEACHERS ASSOCIATION/CTA/NEA,
Exclusive Representative.
Representation Case
Case No. SF-UM-230
SF-R-488
PROPOSED DECISION
(3/9/83)
Appearances: Paul M. Loya, Attorney (Atkinson, Andelson, Ruud
and Romo ) for Los Gatos Joint Union High School District;
Diane Ross, Attorney for Los Gatos Joint Union High School
District Teachers Association/CTA/NEA.
Before Joseph C. Basso, Hearing Officer.
PROCEDURAL HISTORY
On January 20, 1982, the Los Gatos Joint Union High School
District Teachers Association/CTA/NEA (hereafter Association)
filed a unit modification petition with the Public Employment
Relations Board (hereafter PERB or Board). The petition sought
the addition of driver trainer instructors to a unit of
certificated employees represented by the Association. 1
1On June 14, 1976, the District recognized the
Association as the exclusive representative of a certificated
unit of regular daytime certificated staff, excluding the
superintendent, district directors, principals, assistant
principals, community education teachers, and substitutes.

The Association clarified its unit modification petition at
the hearing indicating that the petition did not seek to
include the driver training coordinator in the unit.
On February 9, 1982, the Los Gatos Joint Union High school
District (hereafter District) responded to the Association's
petition stating that: (1) driver training instructors should
not be included in the established certificated unit because
they allegedly do not share a community of interest with the
other certificateed employees; (2) driver training instructors
are "casual" employees; and (3) the petition should be
dismissed because of "supervisory interference."2
The District further contends that if the driver training
instructors are included in the established certificated unit,
the driver training coordinator should be excluded because of
his alleged supervisory duties.
The issues to be decided in this case are:
1 . 	Whether driver training instructors should be added to
the established certificated unit;
2. 	Assuming that driver training instructors should be
added to the unit, the status of the driver training
coordinator .
2The District contends that because the driver training
coordinator is allegedly a supervisor his signature on the
proof of support for the Association's petition violated
Government Code section 3543.6 (b).
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DISCUSS ION
I. 	Driver Training Instructors Shall be Included in the
Established Certificated Unit
PERB Regulation 32781 (a) (1)3 provides that a recognized
or certified employee organization may file with the regional
office a petition for change in unit determination:
(1) To add to the unit unrepresented
classifications or positions which existed
prior to the recognition or certification of
the current exclusive representative of the
unit .
Government Code section 3545 (a) and (b) sets forth the
standards for determination of an appropriate unit:
) 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.
3see California Administrative Code, title 8, Division I,
Chapter 6, Article 5, PERB Regulations, September 1982.
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A. 	Community of Interest
Section 3545 establishes a rebuttable presumption that all
classroom teachers should be contained in a single unit, absent
a showing of a lack of community of interest between the
groups. In Peralta Community College District (11/17/78) PERB
Decision No. 77, the Board held that:
Reading subsection 3543 (b) together with its
companion subsection (a) gives rise to the
presumption that all teachers are to be
placed in a single unit save where the
criteria of [subsection (a) ] cannot be met.
In this way, the legislative preference, as
the Board perceives it, for the largest
possible viable unit of teachers can be
satisfied. Thus, we would place the burden
of proving the inappropriateness of a
comprehensive teachers' unit on those
opposing it. (Id. , at p. 10.)
In El Monte Union High School District (10/20/80) PERB
Decision No. 142, the PERB concluded that driver training
teachers should be included in the established certificated
unit . 	The Board found that driver training teachers had a
community of interest with their regular teacher counterparts,
for they were all credentialed, performed their service in a
state mandated program, worked directly with students and were
recruited by the principals.
Board cases outside the driver training area are relevant
in the instant case. In Dixie Elementary School District
(8/11/81) PERB Decision No. 171, the PERB directed that all
substitute teachers be included in the established certificated

unit. The PERB found that substitute teachers had a community
of interest with their regular teacher counterparts because
they all performed identical functions; including carrying out
lesson plans; administering tests; evaluating students and
participation in parent and children conferences; worked
closely together; shared work locations and shared common
responsibilities.
Through behind-the-wheel training, as well as simulator
instruction, 4 driver training instructors in the instant case
teach the fundamentals of automobile operation. Driver
training instructors work exclusively after the regular workday
of classroom teachers, on Saturdays, during summer and other
vacation periods.
Like regular teachers, the driver training instructors work
directly with students; generally have teaching credentials,
supplemented by 12 college units in driver training; prepare
lesson plans; administer and grade tests; assign homework; keep
records for each student; confer with parents when necessary;
correct student errors and evaluate student performance.
There are differences between driver training instructors
and regular teachers. Driver training instructors are paid on
an hourly basis while regular teachers are paid under a yearly
4simulators are mock-up automobiles that have a steering
wheel, gas pedal, brake, and speedometer. There are 16
students assigned to a simulator. 	No more than four students
are assigned to an automobile.
5

contract. Driver training instructors do not receive fringe
benefits and tenure, whereas regular teachers receive fringe
benefits and tenure. Driver training instructors do not have
reemployment rights and are not assigned extra duty
assignments, while regular teachers have reemployment rights
and are assigned extra duty assignments. The driver training
instructors have different dismissal and evaluation procedures
than regular teachers.
But analyzed in light of the Board precedents discussed
above, these differences do not counteract the basic
similarities between the driver training instructors and the
regular teachers. Indeed, the Board has noted that little
weight should be given to differences in fringe benefits and
payment procedures, for those matters are within the District's
sole control as to its unorganized work force. 	(Redwood City
Unified School District (10/12/79) PERB Decision No. 107.)
Differences in reemployment rights and tenure are plainly
insufficient to rebut the basic similarities between the
certificated employees here involved. Dixie, supra, reinforces
this conclusion, because it dictated that substitutes who might
have worked as few as one or two days per year be included in a
comprehensive unit with regular teachers.
B. 	Established Practices
As noted in Government Code section 3545 (a) above, in
addition to community of interest the PERB must also look to

established practices when making a determination of unit
appropriateness. 	Established practices that are relevant
include efficiency of operations and negotiating history.
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."
(Oakland Unified School District (9/20/79) PERB Decision
No. 102.) Future negotiations covering all employees in the
modified unit do not present any more potential for disruption
than bifurcated negotiations covering two separate units. 	(El
Monte, supra, Also see Rio Hondo Community College District
(1/25/79) PERB Decision No. 87, and Redwood City Unified School
District (10/23/79) PERB Decision No. 107 in which PERB
included summer school teachers in a comprehensive unit with
regular teachers.) PERB held in Livermore Valley Joint Unified
School District (6/22/81) PERB Decision No. 165, that the
efficiency of operations criteria is a factor militating
against fragmentation of units, for the greater number of units
for the District to negotiate with, the greater must be its use
of resources for administering and negotiating contracts.
In the instant case, District past practices, including
negotiating history, support a comprehensive unit. In previous
years, the Association informally represented driver training
instructors in separate, informal discussions with the

District; 5 the District ultimately signed an agreement with
the Association covering driver training instructor salaries.
A comprehensive unit would improve efficiency of operations by
enabling employment conditions of driver training instructors
and regular teachers to be determined in one series of
negotiations rather than two. Livermore, supra. 6 Thus,
considering community of interest criteria and established
practices, it is concluded that the driver training instructors
should be included in the established certificated unit.
II. Driver Training Coordinator
Neither the Association nor the District disputes that the
position of driver training coordinator is a supervisory
position within the meaning of Government Code section
3540. 1 (m) .7 The driver training instructors report directly
Only one district representative had negotiated with the
Association concerning employment conditions for the current
unit.
6The District provided no other convincing evidence
showing that stable labor relations or efficiency of operations
would be impaired by creating a comprehensive unit. 	Further ,
it should be noted that no party has petitioned for a separate
unit of driver training instructors, nor for a separate unit
comprised of all casual employees of the District. Thus the
issue of creation of a second unit is not before the Board in
this case. Additionally, the Board is not required by the EERA
to find "the most appropriate" unit, but rather, "an
appropriate unit." (Compton Unified School District (10/26/79)
PERB Decision No. 109.) 	As discussed herein, the established
certificated unit, with the addition of the driver training
instructors, is an appropriate unit.
7section 3540.1 (m) provides:
"Supervisory employee" means any employee
regardless of job description, having

to the driver training coordinator. The driver training
coordinator spends four-fifths of his workday in the regular
classroom teaching driver education. One-fifth of his workday
is spent coordinating the driver training program for the
District. 	The District employs approximately 12 driver
training instructors in their driver training program.
The driver training coordinator assigns work on a regular
basis to the driver training instructors. He oversees standing
assignments which must be completed by a specific time and date.
He has recommended that an employee be suspended from his
driver training assignment. He has effectively recommended
that a driver training instructor be dismissed. The driver
training coordinator has the authority to effectively recommend
the hiring, suspension, dismissal and disciplining of employees.
Since the driver training coordinator possesses several of
the supervisory indicia enumerated in section 3540.1(m), it is
found that the position of driver training coordinator is a
supervisory position within the meaning of EERA.
authority in the interest of the employer to
hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward or
discipline other employees, or the
responsibility to assign work to and direct
them, or to adjust their grievances, or
effectively recommend such action, if, in
connection with the foregoing functions, the
exercise of such authority is not of a
merely routine or clerical nature, but
requires the use of independent judgment.

The District has alleged "that the driver training
coordinator who signed the proof of support petition for the
Association's unit modification petition violated Government
Code section 3543.6 (b) because of his alleged supervisory
status. " This hearing officer cannot act on the District
allegation regarding the alleged "supervisory interference" by
the driver training coordinator. The proper forum for raising
an alleged violation of Government Code section 3543.6 (b)
because of supervisory interference" is found in PERB rule
32600 (California Administrative Code, title 8, section 32600,
Unfair Practice Poceedings). However, in light of the
undisputed supervisory nature of the driver training
coordinator it is excluded from the established certificated
unit.
PROPOSED ORDER
Based upon the foregoing findings of fact, conclusions of
law and the entire record in this matter, it is the proposed
order that:
1 . 	The petition for unit modification by the Los Gatos
Joint Union High School District Teachers Association/CTA/NEA
shall be granted, thereby adding driver training instructors to
the established unit represented by the Association.
2. 	The position of driver training coordinator is a
supervisory position within the meaning of Government Code
section 3540.1(m) and is therefore excluded from the
established certificated unit.
10

Pursuant to California Administrative Code, title 8,
part III section 32305, this Proposed Decision and Order shall
become final on March 29, 1983, unless a party files a timely
statement of exception. In accordance with the rules, the
statement of exceptions should identify by page citation or
exhibit number the portions of the record relied upon for such
exceptions. See California Administrative Code, title 8,
part III, section 32300. Such statement of exceptions and
supporting brief must be actually received by the Public
Employment Relations Board itself at the headquarters office of
the Public Employment Relations Board in Sacramento before the
close of business (5:00 p.m. ) on March 29, 1983, or sent by
telegraph or certified United States mail postmarked not later
than the last day set for filing in order to be timely filed.
See California Administrative Code, title 8, part III, section
32135. Any statement of exceptions and supporting brief must
be served concurrently with its filing upon each party to this
proceeding. Proof of service shall be filed with the Board
itself. See California Administrative Code, title 8, part III,
sections 32300 and 32305.
Dated: March 9, 1983
11
Joseph C. Basso
Hearing Officer