Modesto City School District (PERB 0884E)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
MODESTO CITY SCHOOL 	DISTRICT,
Employer,
and
MODESTO 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Exclusive 	Representative,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	LOCAL
CHAPTER 007,
Interested 	Party.
Case No. 	S-UM-465
(R-750)
PERB Decision No. 	884
June 3, 	1991
Appearances: 	Kronick, 	Moskovitz, 	Tiedemann & Girard by Robert A,
Galgani, 	Attorney, 	for the Modesto City School District; 	Ken
Burt, Attorney, 	for Modesto Teachers Association, 	CTA/NEA;
Michael 	Branham, 	Field Representative, 	for California School
Employees Association and 	its 	Local Chapter 007.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on 	exceptions 	filed by the
Modesto Teachers Association, 	CTA/NEA 	(MTA) 	to the attached
proposed decision of 	a 	Board 	agent 	granting the 	Modesto 	City
School 	District's 	(District) 	petition to modify the 	certificated
bargaining unit. 	The District 	sought removal of the 	school
board's 	newly 	adopted position 	classification of 	High 	School
Auditoriums 	Manager 	(HSAM) 	from the non-administrator
certificated 	employee 	bargaining 	unit 	and 	filed 	a 	petition
)
)
)
)
)
)
)
) 	"
)
)
)
)
)
)
)
)
)
)
______________ )

pursuant to PERB Regulation 32781(b)(I)1 Thereafter, 	the
petition was 	amended by the 	District 	and 	joined 	in by 	the
California 	School 	Employees Association a d 	its 	Local 	Chapter 	007
(CSEA), 	who sought placement of the classification into the
non-administrative 	classified bargaining unit. 	The 	HSAM
classification 	contains 	only one position.2
1PERB	ERB 	Regulations 	are 	codified at California 	Code 	of
Regulations, 	title 8, 	section 31001 	et 	seq. 	PERB Regulation
32781 provides, 	in pertinent part:
Petition. 	Absent agreement of the parties 	to
modify a unit, 	an exclusive representative,
an employer, 	or both must 	file a petition for
unit modification 	in accordance with 	this
section. 	Parties who wish to obtain Board
approval 	of a unit modification may 	file 	a
petition in accordance with the provisions 	of
this 	section.
(b) 	A recognized or 	certified 	employee
organization, 	an employer, 	or both jointly
may 	file with the regional 	office 	a petition
for unit modification:
(1) 	To delete classifications 	or positions
no 	longer 	in existence or which by virtue 	of
changes 	in circumstances 	are no 	longer
appropriate to the established unit 	. 	. 	.
2The 	Board 	in Alum 	Rock 	Union 	Elementary 	School 	District
(1983) 	PERB Decision No. 	322 	(Alum Rock) 	defined 	"position" 	as "
group 	of 	duties 	and responsibilities which are 	intended 	to 	be
performed by one employee." 	A 	"classification" 	or 	"class" 	was
defined 	as 	"any 	number of 	positions 	which 	are 	sufficiently
similar 	in duties 	and responsibilities 	that the 	same 	job 	title,
minimum qualifications, 	qualifying tests, 	and salary range are
appropriate for all positions 	in the class." 	(Id., 	pp.5-6.)
(Also see, 	Government Code 	section 45101(a).)
While we 	agree with the 	accuracy of 	these definitions, 	we note
that 	the 	HSAM classification consists 	of 	only one position 	and
that 	the parties 	occasionally use 	the 	terms 	classification 	and
position interchangeably. 	Since, 	in this case, 	there is no
significant 	factual 	distinction between what 	the 	terms 	are
.
n
P
a
N
"a
2

The 	Board 	agent 	granted 	the 	District's 	petition 	finding 	that
none 	of 	the duties 	of 	the 	HSAM require 	certification under
Education Code 	section 	440653 and 	therefore 	the 	classification
"is 	part 	of 	the 	classified 	service 	under 	Education Code 	section
44104."4
MTA 	filed 	nine 	exceptions 	to 	the decision 	and 	requested 	oral
argument. 	The request was 	granted and oral 	arguments were heard
by the Board itself on April 	30, 	1991.
We 	have 	considered 	the 	oral 	arguments 	and have 	carefully
reviewed the entire record, 	including the proposed decision, 	the
transcripts, 	MTA's 	exceptions 	and the District's 	response
thereto. 	Finding the Board agent's 	findings 	of 	fact and
conclusions 	of 	law to be 	substantially 	free of 	error, 	we 	adopt
them, 	consistent with the following discussion, 	as 	a decision of
intended to describe, 	we 	also will 	occasionally refer to 	the 	HSAM
classification as 	the HSAM position.
3Section 44065 provides, 	in pertinent part, 	that any person
employed by a 	school district 	in a position 	in which 	50 	percent
or more 	of 	his/her duties 	performed during 	the 	school 	year
consist of directing, 	coordinating, 	supervising or administering
any or all 	of 	the 	following 	functions 	shall 	hold a 	valid 	teaching
or 	service 	credential:
(3) 	School extracurricular activities
related to, 	and an outgrowth of, 	the
instructional 	and 	guidance 	program 	of
the school.
4The Board agent 	cites 	in her 	conclusion Education Code
section 	44104. 	After reviewing the 	text 	of 	that 	section and 	the
analysis 	contained 	in the body 	of 	the 	Board agent's 	decision
referring to Education Code 	section 45104, 	it is 	clear the
citation to 44104 	is a typographical error. 	(See p. 	16 	for text
of 	section 	45104.)
: . . "A
w	
3

the Board 	itself, 	but write 	separately to address 	MTA's
exceptions. 	.
FACTUAL 	SUMMARY
The 	following 	facts 	are 	summarized 	from the 	Board 	agent's
proposed decision, 	with 	some 	additional 	information drawn 	from
the 	record 	and 	added 	for 	clarification.
The dispute involves 	the duties 	of one individual, 	Paul
Tischer 	(Tischer), 	hired by the District in 1965 	as a teacher.
With the 	exception of one 	semester 	in 	1965, 	Tischer taught drama
for the District until 	the 	1984-85 	school year. 	During this 	same
period, 	he 	also 	assumed additional 	responsibilities 	related 	to
the "coordinating and maintenance 	of 	the 	District's 	auditorium 	and
stage 	facilities. 	These additional 	duties 	generally 	included
scheduling 	the 	use 	of the 	auditorium 	for 	school 	and 	community
performances; 	hiring and 	supervising a crew to assist 	in
productions; 	overseeing 	and assisting 	in the use 	and maintenance
of all equipment, 	such as 	lighting, 	sound equipment, 	and scenery;
and 	ensuring the 	safety of 	persons 	and property 	in the
auditorium.
A 	job description 	entitled 	"Stage 	Technician" 	was 	developed
and adopted by the 	District 	encompassing these 	duties 	in 	1975.
The 	job description was 	revised 	slightly 	in 	1979 	and 	renamed
"High School Stage Technician" 	(HSST). 	Neither position is
expressly 	identified 	in 	the 	certificated 	or 	classified 	collective
bargaining agreements. 	However, 	appearing on the face of the
HSST 	job description 	is 	the 	statement 	"Classified Unit 	Salary
4

Schedule" 	apparently 	indicating 	the 	classification's 	salary was
fixed by the classified contract. 	On June 29, 	1989, 	the
District's 	board of 	education adopted 	a 	new 	job description
entitled 	"High 	School Auditoriums 	Manager," 	which 	incorporated
and 	expanded 	the duties 	and 	qualifications 	described 	in the prior
job descriptions. 	It is 	this 	latter 	job description and
respective position that 	is 	the 	subject 	of 	the unit modification
petition. 	Neither the 	1975, 	1979, 	nor the current 	19895 job
description of 	HSAM require 	that 	the 	incumbent possess 	a 	teaching
credential.
Although Tischer performed the duties 	of the HSST, 	the
record 	indicates 	that he has 	always 	been paid 	according to 	the
certificated 	salary 	schedule 	and 	that 	the 	HSST position was 	never
filled as 	a 	separate 	and distinct position. 	Tischer did not
teach any instructional 	courses 	for the 	District 	in 	1984-85,
1985-86, 	1987-88, 	and 1988-89.6 His 	sole responsibilities
consisted of 	the 	Stage Technician and HSST duties.
Prior to the 	1989-90 	school year, 	Tischer was 	responsible
only 	for the auditorium at Modesto 	High 	School. 	His
5At page 	6 	of 	the proposed decision, 	the Board agent
identifies 	the HSAM job description as 	the 	"1988" 	job
description. 	However, 	although the 	job description was 	first
proposed by the personnel department 	in 	1988, 	it was 	not adopted
until June 26, 	1989. 	Other references 	in the record also
identify the document as 	a 	1989 	job description. 	Therefore, 	to
remain consistent with the 	record we will 	refer to 	it as 	the 	1989
job description, 	the date 	it was 	officially adopted by the
District.
6 In 	1986-87, 	Tischer taught 	five English classes 	in addition
to his 	stage technician duties 	since 	the 	District was
understaffed by 	one 	instructor.
5

responsibilities 	expanded, 	in the fall of 	1989, 	to 	include Downey
High School. 	Tischer reports 	to the high 	school 	site
administrators 	or their designees 	and to 	the 	supervisor of
maintenance 	and operations.
The 	District 	filed 	the 	instant petition7 alleging 	Tischer's
responsibilities 	have 	shifted 	away 	from his 	teaching assignments
and 	now 	focus 	entirely on the use 	and maintenance 	of the
District's 	auditoriums 	for theatrical productions.
DISCUSSION
MTA's 	Exceptions
MTA asserts 	nine 	exceptions 	primarily 	arguing 	that 	the 	Board
agent 	erred in her 	legal 	analysis 	and conclusions 	of 	law. 	The
exceptions 	focus on four basic 	theories: 	(1) 	the Board agent
erred 	in holding 	PERB has 	jurisdiction to 	consider the petition;
(2) 	the Board agent 	erred by not 	concluding that 	the duty to
bargain 	should be 	imposed as 	a 	condition precedent 	to 	granting
the petition; 	(3) 	the Board agent 	erred by examining whether the
position 	(and therefore duties) 	were 	"certificated" 	or
"classified" 	under the Education Code, 	rather than examining the
7In the original petition, 	the District 	sought only the
removal 	of 	the 	HSAM position 	from 	the 	certificated 	bargaining
unit due to its classified status. 	Subsequently, 	the District
and CSEA 	jointly 	filed an 	amended petition requesting 	not 	only
the 	deletion of 	the position 	from the 	certificated bargaining
unit but 	that 	it 	also be 	added to 	the 	classified bargaining unit,
Noting that 	PERB regulations 	do not allow for the 	transfer of
classifications 	between bargaining units 	unless 	the petition 	is
filed 	jointly by 	the 	exclusive 	representative 	of 	both bargaining
units 	the 	Board 	agent 	concluded 	she 	could only 	act 	on the
petition insofar as 	it 	sought to delete the HSAM position 	from
the 	certificated unit.
66

issue as a transfer of bargaining unit work; 	and 	(4) 	the Board
agent's 	decision results 	in poor public 	policy because 	it 	allows
the 	employer to 	transfer bargaining unit work by 	simply
"rebundling" 	a 	set of duties 	into position classifications
established 	outside 	the 	bargaining unit.
Jurisdiction 	To 	Consider 	Petition
MTA"contends 	PERB 	is without 	jurisdiction to 	act on the unit
modification petition because 	the 	petition 	identifies 	a
classified bargaining unit 	position 	that was 	not 	authorized 	or
adopted by the District's 	board 	of 	education. 	MTA 	further 	argues
the Board agent 	erred 	in concluding that the 	intent 	of 	a 	unit
modification petition 	(i.e., 	identifying the position to be
deleted 	from a bargaining unit) 	is 	to be determined by the
content of the petition itself. 	According to MTA, 	the 	job
description attached to 	the petition describing 	the 	HSAM
classification 	is 	not the 	same position description adopted 	by
the Modesto City School's 	board of 	education at 	its 	June 	26, 	1989
meeting. 	MTA 	contends 	that 	the 	board only 	authorized 	the
creation of 	a 	classified management position which 	is 	an
unrepresented position. 	MTA then notes 	that the 	instant petition
is 	a 	joint petition in which 	the 	District 	and CSEA are requesting
that 	the 	HSAM 	classification be 	deleted 	from the 	certificated
bargaining unit 	and placed 	in the 	classified unit. 	Since 	all
actions 	authorized by a 	school 	board 	are 	required 	to 	take place
at public 	meetings, 	MTA asserts 	the District can only 	speak
through actions properly adopted at a public meeting, 	as
7

reflected in the board minutes. 	MTA contends 	that 	such properly
authorized 	actions 	are 	a 	jurisdictional 	requirement 	that 	PERB
must 	observe before 	considering the merits 	of 	a unit modification
petition.8
MTA's 	exception and 	supporting arguments 	are without 	merit.
The gravamen of MTA's 	argument 	is 	that 	the 	District's
representatives 	do 	not have authority to 	file 	the 	instant
petition because 	it does 	not describe 	the position officially
adopted by the board of education. 	MTA, 	however, 	has 	offered no
legal 	authority to 	support 	its 	theory that 	the District's
representatives 	have 	exceeded 	their 	authority 	in 	filing 	the
instant" petition. 	In: . contrast, 	we note that the California Court
of Appeal 	(3rd Dist.) 	stated in McGrath v. 	Burkhard 	(1955) 	131
Cal.App.2d 	367 	that:
"There 	is 	no necessity that all the rules,
orders 	and regulations 	for the discipline,
government and management 	of 	the 	school 	shall
be made 	a matter of public 	record by the
school board, 	or that every act, 	order or
direction affecting 	the 	conduct 	of 	such
schools 	shall 	be 	authorized 	or 	confirmed by 	a
formal vote."
(Id. 	at p. 	373; 	emphasis added.)
Accordingly, 	we 	agree with 	the 	Board agent's 	conclusion that
the petition was 	properly brought before PERB because 	the 	intent
of 	a petition, 	when 	signed by an authorized representative 	of 	the
filing party, 	is 	determined by the contents 	of 	the petition
8The 	District 	responds 	by 	stating 	the board 	of 	education
clearly 	indicated 	its 	intent 	to 	remove 	the position 	from the
certificated unit 	by 	its 	assignment 	of 	a 	salary 	for the position
from the 	classified 	management 	salary 	schedule.
8

itself. 	MTA's 	argument that PERB 	lacks 	jurisdiction to 	consider
the petition is 	therefore 	rejected.
Similarly without merit 	are 	MTA's 	related 	arguments 	that 	the
Board agent 	erred 	in acting on the 	amended 	(joint) 	petition
because, 	by removing the HSAM position from the 	certificated
bargaining unit, 	the incumbent, 	Tischer is 	left without
representation. 	Although the argument 	is 	not clearly 	stated, 	MTA
appears 	to 	contend that 	consideration of 	the petition 	is 	improper
because 	the 	joint petition 	seeks 	to 	remove 	the 	classification
from one unit 	and place 	it 	in another unit when the 	exclusive
representatives 	of 	each bargaining unit 	have 	not 	consented 	to 	the
transfer. 	However, 	since 	in the absence of 	such mutual
agreement, 	PERB 	regulations 	only permit 	the Board agent 	to delete
the 	classification 	from the certificated unit, 	Tischer has 	been
denied his 	right 	to 	representation.
These 	arguments 	are without merit because 	removing the 	HSAM
classification 	from the 	certificated unit 	does 	not 	mean Tischer
has 	been denied a 	right to 	collective representation. 	He 	can
remain 	in the 	certificated unit by 	taking a 	teaching position.
All 	that has 	occurred by the 	Board 	agent's 	consideration of 	the
joint petition is 	that the HSAM classification is 	unrepresented.
Nevertheless, 	once the classification is 	removed from the
certificated unit, 	CSEA can 	simply 	file 	a 	new petition to 	include
it 	in the 	classified bargaining unit.
99

Duty 	to 	Bargain 	and 	Unit 	Modification 	Petitions
MTA contends 	that 	the duty to bargain 	should be 	imposed 	as 	a
condition precedent 	to 	granting 	a 	unit 	modification petition
since the practical 	effect 	of 	granting the petition is 	to 	remove
(transfer) 	work from the bargaining unit. 	MTA also 	contends 	that
the Board agent 	erred in holding that allegations 	of 	an unlawful
transfer of 	bargaining unit work are properly 	raised 	as 	an unfair
practice 	charge 	and not 	in a unit modification proceeding. 	To
restrict the transfer issue to unfair practice proceedings, 	MTA
contends, 	places 	it in a 	"Catch 22" 	if the petition is granted
and a 	"res 	judicata effect" 	is 	given to the modification.9 MTA
apparentl
. .
y believes 	it 	cannot 	file 	an unfair practice 	charge
until 	the work has 	actually been transferred, 	which 	in this 	case
will not occur until the petition is granted, 	and, 	by granting
the petition, 	the 	issue of whether work has been improperly
transferred 	out 	of 	the 	bargaining unit 	is 	automatically decided.
These arguments, 	however, 	are without merit 	for a variety of
reasons.
First, 	MTA misapplies the phrase 	"removal" 	and 	"transfer of
bargaining unit work" 	to the 	facts 	of this 	case. 	As 	a general
rule, 	charges 	that an employer has 	engaged in an unlawful
transfer of bargaining unit work arise 	in the 	context 	of 	an
9MTA does 	not 	clearly explain what 	is 	meant by the 	"Catch
22" 	effect or its 	statement that 	if the petition is 	granted 	it
should not be given 	"any res 	judicata 	effect." 	Presumably,
however, 	MTA is 	referring to an unfair practice proceeding
brought 	after the petition 	is 	granted and based 	on the 	employer's
alleged refusal 	to bargain the 	transfer of work.
10

unfair practice proceeding. 	In such cases, 	the employer, 	in
response to a request, 	is 	accused of 	refusing to bargain the
removal 	of 	duties 	from one bargaining unit 	and 	the 	assignment 	of
those duties 	to another bargaining unit. 	What 	is 	at 	issue 	in
this case, 	however, 	is the District's request to delete a
position 	from a bargaining unit by 	retitling or 	creating 	a 	new
classification. 	Such an action 	is 	expressly authorized by PERB
Regulation 32781(b)(l) which provides, 	in part:
A 	recognized 	or 	certified 	employee
organization, 	an employer, 	or both jointly
may 	file with the 	regional 	office 	a petition
for unit modification:
(1) 	To delete classifications 	or positions no
longer 	in existence 	or which by virtue 	of
changes 	in circumstances 	are no 	longer
appropriate 	to 	the 	established 	unit 	. . . .
Although the practical 	effect 	of 	modifying a unit under 	the
above provision may be to transfer work out of 	the unit, 	it 	is
not an unlawful 	transfer because 	it 	is 	done 	in accord with the
process 	PERB requires the employer to observe. 	Recognition of
this principle partially underlies 	the 	analysis 	in Regents 	of 	the
University of 	California 	(California Nurses Association) 	(1989)
PERB Decision No. 	722-H 	(Nurses). 	In Nurses. 	the employer
created 	an 	entirely 	new 	supervisory 	classification 	encompassing
the 	alleged 	supervisory duties 	of 	nurses 	represented by 	the
California Nurses Association 	(CNA). 	The university then
excluded 	the 	nurses 	from the 	existing bargaining unit 	by
reassigning 	them 	to 	the 	supervisory 	classification 	and 	refused
- 1.
11

to bargain with CNA 	contending 	it was 	not 	the 	exclusive
representative of 	the 	supervisor nurses. 	The university 	further
argued that PERB regulations 	permit an employer to 	engage 	in a
"technical refusal 	to bargain" 	as 	a means 	of 	securing PERB's
review of the disputed unit modification 	(i.e., 	testing 	the
"contours of the bargaining unit"). 	Responding to that argument,
the Board 	stated 	in relevant part:
. 	. 	. 	PERB statutes and regulations, 	as well
as decisional 	law under the NLRA, 	clearly
support the 	. 	. 	. 	conclusion that in disputed
cases 	the only method available to an
employer 	seeking 	to 	convert 	bargaining 	unit
positions 	to 	newly 	created 	supervisory
positions 	is 	through the 	filing of a timely
unit 	modification petition.
(Id. 	at p. 	9; 	emphasis added.)
Stating a 	similar rationale, 	the Board, 	in Mount San Antonio
Community College District 	(1983) 	PERB Decision No. 	334. 	rejected
the dissent's 	theory that the district, 	by creating new job
classifications, 	was 	legally permitted to 	remove 	supervisory work
from the 	bargaining unit 	because:
. 	. 	. 	management could effectively circumvent
the 	statutory unit 	modification procedure,
[which placed 	the 	burden 	on the 	employer 	to
prove the modification 	is 	appropriate by]
shifting the burden to 	the union to prove
that 	management 	had 	acted 	improperly.
(Id. 	at p. 	9, 	fn. 	7; 	emphasis added.)
In other words, 	once new classifications were created, 	filing a
unit modification petition was 	recognized by the 	majority 	as 	a
means 	of 	addressing the 	removal 	of work 	from the bargaining unit.
Together, 	these decisions 	indicate the 	removal of work 	from
a bargaining unit may lawfully occur as 	a 	collateral 	effect 	of 	a
12

unit 	modification when 	PERB's 	statutory 	and 	regulatory procedures
are 	followed.
Also without merit 	is 	MTA's 	contention that the Board 	should
not apply the doctrine of 	res 	judicata 	to 	the unit modification
determination, 	since it places MTA in a 	"Catch 22." 	However,
what MTA 	seeks 	through this 	argument 	amounts 	to 	"two bites 	at 	the
apple." 	That is, 	if it is unsuccessful 	in opposing modification
of the unit, 	MTA wants 	the opportunity to bargain over the
transfer of work 	issue 	or 	file 	an unfair practice 	charge 	in 	the
event the employer refuses 	to bargain. 	This 	approach 	is
rejected.
More significantly, 	however, 	it is not at all clear that MTA
is 	faced with a 	"Catch 22." 	MTA ignores 	the fact that, 	when the
District 	authorized 	the 	creation of 	the 	HSAM position by 	adopting
the 	job description at 	its June 	26, 	1989 meeting, 	MTA could have
requested to bargain over the 	alleged 	transfer.10 (See 	Regents
- -
of University of California 	(UC-AFT) 	(1990) 	PERB Decision No.
826-H.) 	Then, 	if the District refused to negotiate, 	MTA could
have 	filed a 	charge with PERB alleging an unfair practice. 	Had
MTA exercised this 	option, 	the unit modification petition might
have been held 	in abeyance pending resolution of 	the 	unfair
practice 	charge 	or 	consolidated with 	an unfair practice 	complaint
and both 	issues 	resolved 	in a 	single hearing. 	Accordingly, 	MTA's
10	10 It 	is 	not 	clear 	from the 	record 	exactly when MTA 	first
learned 	that 	the 	school 	board 	authorized 	the 	creation of 	the 	HSAM
position. 	Nevertheless, 	it cannot be disputed that MTA had
notice of 	its 	existence 	as 	of 	the date MTA was 	served with 	a 	copy
of 	the petition.
13

"Catch 22" 	situation appears 	to be more 	a problem of 	timing on
its part than a dilemma 	created by PERB's 	procedures.
Finally, 	MTA's 	contention that prior Board decisions 	have
imposed a duty to bargain 	in reclassification 	settings 	is
rejected. 	The decisions 	cited by MTA 	(Alum Rock, 	Lake 	Elsinore
School District 	(1986) 	PERB Decision No. 	563, 	and Muroc Unified
School District 	(1978) 	PERB Decision No. 	80) 	simply do not 	stand
for the proposition for which 	they are 	cited.11 While 	it 	is 	true
the Board 	in Alum Rock, 	held that 	the 	employer has 	a duty to
bargain over 	"those 	aspects 	of 	the 	creation or abolition of 	a
classification which merely transfer[s] 	existing 	functions 	and
duties from one classification to another" 	(Id. 	at p. 	11), 	there
is no violation unless 	the employer, 	in response to a request,
refuses 	to bargain. 	(Calistoga 	Joint Unified 	School 	District
(1989) 	PERB Decision No. 	744, 	p. 	10.) 	Furthermore, 	in each case
in which the Board 	imposed a duty to bargain, 	the 	transfer of
work 	issue was 	brought 	before 	the 	Board 	in an unfair practice
proceeding. 	There 	is 	no evidence 	in the 	instant 	case that MTA
made 	such a 	request or that 	the District 	refused to discuss 	the
alleged transfer. 	Accordingly, 	the duty to bargain is 	not a
condition precedent 	to a determination of 	a unit modification
petition.
11It is 	not 	clear from MTA's 	exceptions 	how the 	Board's
decision in Lake Elsinore; 	supra; 	and Muroc., 	supra, 	apply to
reclassification 	since 	neither 	case 	addressed 	the 	duty 	to
bargain 	in the 	"reclassification 	setting."
14

Education Code 	Governs 	Initial 	Classification of 	Position
A key determination made 	by the 	Board 	agent 	is 	that 	the 	HSAM
classification does 	not 	include duties 	for which a 	teaching
certificate 	may be 	required under 	Education Code 	section 	44065.
Furthermore, 	since the position was 	not a certificated position,
then, 	under Education Code section 45104, 	it must be designated
as 	a classified position. 	Finally, 	the Board agent held that
since the Educational Employment Relations Act 	(EERA) 	section
3545(b)(3)12 prohibits 	classified and 	certificated 	employees 	from
being included 	in the 	same bargaining unit, 	the HSAM
MTA 	contends 	the Board 	agent 	erred 	in resolving 	this 	case 	by
tracking 	the 	Education Code 	because 	that process 	ignores
significant 	labor law principles. 	According to MTA, 	EERA section
3545(a) 	requires unit determinations 	to be decided by examining
"community of 	interests" 	and bargaining history. 	MTA contends
the proper analysis 	should 	consider whether 	the duties 	belong 	in
the unit, 	not the 	status 	of the 	employee assigned to perform
them. 	MTA also argues 	that Education Code 	section 44065 	is 	not
the 	"touchstone" 	for determining which duties 	"belong" 	in the
certificated bargaining unit. 	Relying, 	in part, 	on Hartzell v.
Connell 	(1984) 	35 Cal.3d 899, 	909-911, 	MTA points out that many
duties 	performed by 	certificated personnel 	are 	not 	listed 	in
12EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.
classification must be 	removed 	from the 	certificated unit.
15

section 44065 	and, 	nonetheless, 	have been held to be a necessary
part of 	"education" 	in California.13
We do not 	find MTA's 	arguments persuasive. 	Education Code
section 45104 provides, 	in pertinent part, 	that:
Every position not defined by this 	code 	as 	a
position 	requiring 	certification
qualifications 	. 	. 	. 	shall be a part of the
classified 	service. 	Such positions 	may not
be designated as 	certificated 	nor 	shall 	the
assignment of 	a title 	to 	any 	such a position
remove 	the position 	from the 	classified
service, 	nor shall possession of a
certification document 	be 	made 	a 	requirement
for employment 	in any 	such position.
(Emphasis 	added.)
Similarly, 	Education Code 	section 45103 provides:
The 	governing board 	of 	any 	school 	district
shall 	employ persons 	for positions 	not
requiring 	certification qualifications. 	The
governing board shall 	. 	. 	. 	classify all such
employees 	and positions. 	The 	employees 	and
positions 	shall be known as 	the 	classified
service.
(Emphasis 	added.)
Additionally, 	Education Code 	section 44066 provides 	in part:
A governing board 	of 	any 	school 	district
shall not require an employee or
applicant to possess 	any 	certification,
license, 	or other credential unless 	the
possession of 	such 	. . . 	is 	required by
statute or 	is 	based upon a bona 	fide
occupational 	qualification.
(Emphasis 	added.)
13MTA's reliance on Hartzell v. 	Connell, 	supra, 	is
misplaced. 	The 	issue 	in Hartzell was whether 	school 	districts
could, 	in light of the passage of Proposition 	13, 	impose 	special
fees 	on 	students who 	elected to participate 	in after 	school,
voluntary, 	extracurricular activities. 	The 	court did not,
however, 	address 	credentialing qualifications 	or the 	status 	of 	an
employee required to 	"teach" 	extracurricular activities.
. 	• 	.
16

These 	sections 	clearly 	indicate 	that a 	school 	district must
designate a position as 	"classified" 	unless 	the duties 	to be
performed require 	certification, 	in which case the position must
be designated as 	certificated. 	Thus, 	when the district creates 	a
position it must, 	at least tentatively, 	designate it either
classified 	or 	certificated 	(Healdsburg 	Union 	High 	School
District, et al. 	(1984) PERB Decision No. 	375, p. 	46) and, 	is
prohibited 	from requiring 	certification unless 	it 	is 	required by
law or as 	an occupational 	qualification. 	(Education Code 	section
44066.) 	The District, 	in this 	case, 	designated the position as
part of 	the 	classified 	service, 	but because the duties 	that made
up 	the 	new 	classification had previously 	been performed 	by 	an
employee who also possessed a 	teaching credential, 	the 	District
petitioned 	for a 	unit modification 	in order 	to 	satisfy 	any
obligation 	concerning 	the 	transfer 	of work 	from 	the 	certificated
to the classified unit. 	Accordingly, 	we agree with the Board
agent's 	analysis 	and hold 	it 	is 	necessary to 	first determine 	the
status 	of 	the 	classification or position 	(and 	therefore 	the
duties) 	under the Education Code. 	Bargaining history and
community of 	interest 	criteria 	are 	then used to 	ascertain 	into
which 	classified 	or 	certificated 	bargaining 	unit 	the 	position
should be 	placed.
We 	also 	reject MTA's 	argument 	that 	Education Code 	section
44065 	is 	not the 	"touchstone" 	for determining whether 	certain
duties 	are 	certificated or 	classified. 	Although MTA attempts 	to
draw a distinction under 	this 	section and 	EERA 	section 	3545(a)
17

and 	(b)(3) 	between the treatment of 	"duties" 	verses 	"categories
of employees," 	we do not find the argument persuasive. 	Thus,
when 	confronted with 	a position 	for which 	none 	of 	the duties
require a credential, 	the appropriate analysis 	is 	to evaluate the
position in light of Education Code 	sections 	44065, 	45103 	and
45104.
Similarly without merit 	is 	MTA's 	contention that 	the 	Board
agent misapplied the 	criteria 	set 	forth 	in Education Code 	section
44065. 	MTA contends 	that the duties 	and responsibilities 	of 	the
HSAM are 	instructional 	in nature 	and 	therefore 	fall 	within the
provisions of Education Code 	section 44065(a)(3) 	(i.e., 	"school
extracurricular activities 	related to, 	and an outgrowth of, 	the
instructional and guidance program of the 	school"). 	In support
of its argument, 	MTA points out that the incumbent, 	Tischer,
requested 	that 	the 	job description be 	revised 	to 	reflect 	his 	work
with 	students 	and 	the possibility 	that 	students 	might 	receive
high 	school 	graduation credit by working 	for him. 	MTA also
objects 	to 	the 	Board agent's 	determination that 	the position 	is
not 	governed by 	section 	44065 	because 	the 	duties 	performed by 	the
HSAM are not 	"core components" 	of 	extracurricular activities.
There is no evidence in the record, 	however, 	to support
MTA's 	argument that the HSAM duties 	include, 	or are an outgrowth
of, 	instructional program activities. 	The 	fact that a district
employee may have 	some 	supervisory 	or 	instructional
responsibility over 	students 	of 	the district does 	not
automatically require 	that 	the 	incumbent possess 	a 	teaching
18

credential. 	Several 	examples 	of 	non-certificated positions
consisting 	of 	this 	kind of 	responsibility 	include 	instructional
and noon-duty aides, 	bus drivers and, 	on occasion, 	cafeteria
staff. 	(See Education Code sections 44065, 	44066, 	45103, 	45104,
45342 et seq., 	44814, 	44815, 	and 39902.) 	Further, 	after
reviewing the 	job descriptions 	and 	the 	testimony 	of witnesses 	for
both parties, 	Tischer's proposal appears 	to be closer to that of
an on-the-job training work 	site 	such 	as 	those 	utilized 	in work
study and vocational 	education programs. 	Under 	either program,
students 	enroll 	in 	special work related courses 	at 	their 	school.
They 	also 	receive 	special 	instruction 	from a 	teacher-coordinator
at the 	school 	in preparation 	for placement at 	a work 	site
involving on-the-job 	training. 	While 	the 	teacher-coordinator
must be 	credentialed under Education Code 	section 	44065, 	the work
site 	supervisor or employer is 	not. 	(See California Code 	of
Regulations, 	title 5, 	section 10070 et. 	seq.) 	There is no
evidence 	in the record to 	indicate 	that Tischer's 	suggestion14
is 	anything more 	than a proposal 	that 	the 	HSAM act 	as 	an
14The 	evidence 	indicates 	that 	Tischer's 	suggestion 	is 	merely
an inquiry, 	and that the District did not 	incorporate his
suggestion 	into 	the duties 	identified 	in the 	job description. 	In
addition, 	none of the witnesses 	(Tischer and Assistant
Superintendent of 	Personnel 	David Mello 	(Mello)) 	testified 	that
the position would 	include 	instructional duties 	(i.e., 	provide
instruction in the 	skills, 	knowledges, 	and attitudes 	required of
a particular 	course of 	study 	along with 	the 	evaluation of
specific performance 	levels.) 	Although Mello 	states 	that 	section
44065(a)(3) might 	arguably apply, 	his 	full 	testimony on the
subject 	is 	that, 	"It really would depend on the activity".
Moreover , 	when asked on direct examination, 	"in your opinion,
does Mr. 	Tischer's position require 	certification credentials?"
Mello responded, 	"No."
1
19

employer/supervisor of 	students who 	enroll 	in a 	stagecraft 	course
at their respective 	schools. 	In 	such a 	case, 	the HSAM would not
be governed by the provisions 	of 	section 	44065. 	Accordingly,
MTA's 	arguments 	concerning 	the 	Board 	agent's 	misapplication 	of
the 	criteria 	under 	Education Code 	section 	44065 	are 	rejected.
Public 	Policy Considerations
MTA contends 	the 	Board 	agent 	misreads 	the proper
relationship between EERA section 3545(a) 	and 	(b)(3).15 The
proper analysis, 	MTA argues, 	is to first determine whether the
duties 	are properly 	considered as 	falling within 	the 	certificated
bargaining unit. 	This 	should be 	accomplished by utilizing 	the
community 	of 	interest 	and bargaining 	history 	criteria 	identified
in section 3545(a). 	Further, 	according to MTA, 	the Board agent's
analysis 	results 	in 	"poor public policy" 	because 	it permits 	and
encourages 	employers 	"to 	rebundle duties 	and responsibilities 	to
move 	. 	. 	. 	employees based on this rebundling to a different
15EERA section 3545(a) 	and 	(b)(3) 	provides:
(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:
(3) 	Classified employees 	and 	certificated
employees 	shall 	not be 	included 	in the 	same
negotiating unit.
20

bargaining unit 	. 	. . . " 	Noting 	that 	classified 	employees
generally receive a 	lower 	salary and benefits, 	MTA argues 	the
interchange between bargaining units 	has 	a 	significant 	and
negative 	impact upon individual 	employees' 	terms 	and conditions
of 	employment 	and has 	the potential 	to 	disrupt 	employer-employee
relations 	under EERA. 	MTA further 	contends 	that 	the Board agent
erred 	in concluding that 	the 	level 	of 	rights 	and benefits
afforded an employee 	as 	a 	result of unit placement 	is 	irrelevant
to the 	inquiry here.16
These 	arguments 	are 	rejected 	as 	highly 	speculative 	and
without any factual basis. 	There 	is 	no 	evidence that by
determining the 	appropriate 	designation 	of 	a position under 	the
Education Code as 	either certificated or 	classified, 	then
applying the 	unit 	determination 	standards 	identified 	in EERA
section 3545(a) 	and 	(b), 	that an employer will be encouraged to
transfer work out of 	the bargaining unit by 	"rebundling" 	duties.
16We agree with Board agent's 	conclusion that 	the 	level 	of
benefits 	afforded Tischer 	as 	a 	certificated 	employee when
compared to the benefits 	available to the HSAM, 	as 	a classified
position, 	is 	irrelevant to whether a unit modification 	should be
granted. 	MTA's 	insistence on considering these facts 	is, 	in
reality, 	an attempt to bootstrap a 	"community of 	interest"
argument into the analysis. 	That 	is, 	because Tischer currently
receives 	a 	salary based 	on the 	certificated 	salary 	schedule 	and
receives 	all 	the other benefits 	of 	a 	certificated employee, 	his
interests 	are 	similar to the certificated unit. 	The argument 	is
rejected. 	If 	PERB were 	to 	consider the 	community of 	interest
argument, 	the proper focus 	should 	involve a comparison between
the HSAM position, 	not the 	individual who has been doing the
work, 	with the certificated unit. 	However, 	even if Tischer's
rights, were to be considered, 	the District correctly points out
that his 	rights 	are protected under a number of 	the Education
Code 	provisions 	authorizing 	transfers 	between 	certificated 	and
classified positions, 	e.g., 	sections 44063, 	44064 and 22504.
21

Nevertheless 	if that did occur, 	as previously discussed, 	the
proper method 	for 	challenging 	the 	rebundling/transfer 	is 	to
request 	to bargain about 	the 	alleged 	transfer or 	file 	an unfair
practice charge 	at 	the 	time the District makes 	known 	its
intention to 	create 	the 	position allegedly 	encompassing 	the
bargaining unit work.
ORDER
For the reasons 	expressed above, 	we AFFIRM the 	Board agent's
proposed 	decision 	and ORDER that 	the 	unit 	modification petition
be GRANTED.
Chairperson Hesse 	and Member Shank 	joined 	in this 	Decision.
22

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MODESTO CITY SCHOOLS 	DISTRICT,
Employer,
and
MODESTO TEACHERS ASSOCIATION/
CTA/NEA,
Exclusive Representative,
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND I T S LOCAL
CHAPTER 0 0 7 ,
Interested Party.
Case No. 	S-UM-465
(R-750)
PROPOSED DECISION
(6/14/90)
Appearances: 	Kronick, 	Moskovitz, 	Tiedemann & Girard by Robert A.
Galgani, 	Attorney, 	for the Modesto City Schools District; 	Ken
Burt, 	Executive Director, 	for the Modesto Teachers
Association/CTA/NEA; 	Michael Branham, 	Field Representative, 	for
the California 	School 	Employees Association and 	its 	Local 	Chapter
007.
Before Jerilyn A. 	Gelt, 	Hearing Officer.
PROCEDURAL 	HISTORY
On July 	18, 	1989, 	the Modesto City Schools District
(District) 	filed a unit modification petition with the Public
Employment Relations 	Board 	(PERB or Board) 	pursuant to PERB
regulation 32781(b)(1)1. 	The petition sought to delete the
1
PERB regulation 32781 provides, 	in pertinent part:
Absent agreement of the parties to
modify a unit, 	an exclusive representative,
an employer, 	or both must file a petition for
unit modification in accordance with this
section. 	. 	. 	.
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
.
)
______ )

position of 	High 	School Auditoriums 	Manager 	from the 	certificated
bargaining 	unit 	represented 	by 	the 	Modesto 	Teachers
Association/CTA/NEA 	(CTA) 	due to 	its 	classified 	status. 	The
California 	School 	Employees Association and 	its 	Local 	Chapter 	007
(CSEA) 	was 	named as 	an interested party on the petition.
On August 	3, 	1990, 	CSEA filed a 	letter with PERB 	stating 	its
position: 	that 	the High School Auditoriums 	Manager 	should become
part 	of 	the 	classified bargaining 	unit 	represented by CSEA.
CTA 	filed 	a 	response 	opposing 	the 	requested 	deletion
on August 	7, 	1990. 	An informal 	settlement conference was 	held on
September 	l, 	1990, 	but the parties were unable to reach
agreement.
Subsequently, 	on September 25, 	1990, 	an amended unit
modification petition22 was 	jointly 	filed by 	the 	District 	and CSEA
(b) 	A recognized or 	certified employee
organization, an employer, 	or both jointly may
file with the regional 	office 	a petition for
unit modification:
(1) 	To delete classifications or
positions 	no 	longer 	in existence or
which by virtue of 	changes 	in
circumstances 	are 	no 	longer 	appropriate
to the established unit; 	. 	. 	.
2CTA argues 	that 	the 	amended unit modification petition 	is
not properly before 	PERB because 	it 	states 	a position other than
that which was 	initially 	authorized by 	the 	governing board 	of 	the
District, 	i.e., 	that the High School Auditoriums Manager should
be a 	classified management position. 	However, 	when a unit
modification petition 	is 	signed 	by 	an authorized 	representative
of the filing party, 	such as, 	in this case, 	the Assistant
Superintendent, 	the 	intent of 	the petition is determined by the
content of the petition itself. 	Thus, 	CTA's 	argument 	is without
merit.
22

to delete the position of 	High School Auditoriums 	Manager 	from
the 	certificated bargaining unit 	and 	add 	it 	to 	the 	classified
bargaining unit. 	Under PERB's 	unit modification regulations
(32781 et seq.)/ 	however, 	an exclusive representative may not
file 	a petition to 	add a position currently 	represented by
another exclusive representative to 	its 	bargaining unit. 	The
only exception to 	this 	is when a petition 	is 	jointly 	filed by the
exclusive representatives 	of 	both units 	to 	transfer a position
from one unit to another. 	Therefore, 	the request to add the
position 	in dispute to the 	classified unit 	is 	not properly before
the 	Board at this 	time, 	and this 	decision will 	only address 	the
issue 	of whether the position 	should be 	deleted 	from the
certificated 	unit.
A formal hearing was held on November 27, 	1989, 	briefs were
filed by 	the District and CTA, 	and the 	case was 	submitted 	for
decision on March 29, 	1990.
FACTS
Mr. 	Paul Tischer, 	the person currently performing the duties
of 	High School Auditoriums Manager3, 	has been employed as 	a
3On September 2, 	1975, 	the District Board of Education
approved 	a 	job description 	entitled 	"Stage 	Technician" 	developed
by Mr. 	Tischer encompassing his 	stage production duties. 	On
June 26, 	1989, 	the Board approved a 	job description entitled
"High School Auditoriums 	Manager," 	also developed 	in major part
by Mr. 	Tischer, 	encompassing these duties. 	Although neither of
these 	titles 	appear 	in the 	certificated bargaining unit
description, 	it is undisputed that it is this position, 	filled by
Mr. 	Tischer for the past 2 5 years, 	which is the subject of this
unit modification petition. 	For the purposes of this 	decision,
the 	titles 	of 	Stage 	Technician and High 	School Auditoriums
Manager will 	be 	used 	interchangeably.
33

certificated employee by the District 	since 	1965. 	In 	1968, 	he
founded 	a 	summer 	theater program 	called the 	Modesto 	Youth
Theater, 	later known as 	the Modesto Performing Arts Association
(MPAA). 	In 	1969, 	this program became part of the District's
summer 	school program where 	it 	continued until 	summer 	school was
eliminated 	statewide 	in 	1978 	due to the passage of 	Proposition
13. 	After that time, 	although it was 	no 	longer offered for
credit as part of 	the District curriculum, 	the program continued
and Mr. 	Tischer's 	responsibilities 	remained the 	same. 	The
program was 	funded by MPAA, 	which reimbursed the District 	for 	60%
of Mr. 	Tischer's salary.
Mr. 	Tischer has a B.A. 	degree 	in drama and speech, 	an M.A.
degree 	in drama 	instruction and curriculum, 	and a general
secondary teaching credential. 	Until 	the 	1984-85 	school year,
Mr. 	Tischer's 	assignment 	for the District 	consisted of both
teaching and 	stage 	technician duties. 	Except 	for a 	one-semester
assignment 	as 	a woodshop 	teacher 	in 	1965 	and a 	one-year
assignment as 	an English teacher in 	1986-87, 	his teaching
responsibilities 	have been in the drama program. 	His 	stage
technician duties 	generally 	include 	scheduling 	the 	use 	of 	the
auditorium 	for 	school 	and 	community performances; 	hiring and
supervising a crew to assist 	in productions; 	overseeing and
assisting 	in the use and maintenance of all 	equipment, 	such as
lighting, 	sound equipment, 	and scenery; 	and ensuring the 	safety
of persons 	and property in the auditorium. 	These duties 	remain
A
4

much the 	same 	today as 	they were when the program began, 	although
the 	scope of Mr. 	Tischer's 	responsibility has 	grown.
In 	1979, 	due to the expansion of his 	stage technician
responsibilities, 	Mr. 	Tischer began teaching three classes
instead of 	five. 	In 	1984-85 	and 	1985-86, 	he did not teach any
classes. 	In 1986-87, 	Mr. 	Tischer taught five English classes 	in
addition to his 	stage 	technician duties 	because 	the 	District was
short one 	instructor. 	He did not 	teach any 	classes 	in 	1987-88
and 	1988-89, 	and did not have a teaching assignment at the time
of this hearing.
Prior to the 	1989-90 	school year, 	Mr. 	Tischer was
responsible only 	for the auditorium at Modesto 	High 	School. 	In
the 	fall 	of 	1989, 	his 	responsibilities 	expanded to 	include Downey
High School. 	At the time of the hearing, 	he had an office at
Modesto High 	School 	and planned 	to have 	one 	at 	Downey 	High
School. 	Mr. 	Tischer reports to the high school 	site
administrators 	or their designees 	and to 	the 	supervisor of
maintenance 	and operations.
Mr. 	Tischer has 	always 	been paid according to the
certificated salary schedule. 	In 	1986-87, 	when he worked as a
full-time English teacher and 	stage technician, 	he was paid 	140%
of his 	salary as a certificated employee: 	100% 	for his 	teaching
duties and 40% 	for his 	stage technician duties. 	He is currently
at the top of the 	salary 	schedule, 	and receives 	additional
longevity compensation. 	He has 	taken one 	sabbatical 	leave 	and 	is
5
5

eligible 	for another under the CTA contract. 	He 	is 	a member of
the 	State 	Teachers 	Retirement 	System.
Neither the 	1975 	job description of 	Stage 	Technician nor the
1988 	job description of 	High 	School Auditoriums 	Manager 	require
that 	the 	incumbent possess 	a 	teaching credential.
ISSUE
Whether the position of 	High 	School Auditoriums 	Manager
should 	be 	deleted 	from the 	certificated 	bargaining 	unit
represented 	by 	CTA.
DISCUSSION
As noted above, 	PERB regulation 32781(b)(l) 	requires a
showing of 	changed 	circumstances 	for 	the 	filing 	of 	the 	instant
petition. 	Although CTA claims 	that 	no 	such 	showing has 	been
made, 	the record reflects 	that a 	significant change has 	occurred
i.e., 	the elimination of teaching duties 	from Mr. 	Tischer's 	job.
From the time of his 	initial employment until 	1979, 	Mr. 	Tischer
consistently taught a full 	load of 	classes. 	In 	1979, 	this 	load
was 	reduced 	from 	five to 	three 	classes. 	He did not 	teach any
classes 	in 	1984-85, 	1985-86, 	1987-88 and from the fall of 	1989 to
the date of the hearing in this 	case.4 Therefore, 	it 	is 	found
that 	circumstances 	relating to 	the position of 	High 	School
Auditoriums 	Manager have 	sufficiently 	changed to 	meet 	the
requirements 	of PERB regulation 32781(b)(l).
4The 	record also 	indicated 	that 	there was 	no plan 	to 	assign
Mr. 	Tischer teaching duties 	in the 	spring of 	1990.
,
66

The definitions 	for 	"classified" 	and 	"certificated"
employees 	are 	found 	in the Education Code. 	Education Code
section 	44065 	provides 	that 	any 	school 	district 	employee who
works 	in a position 	in which 	50 	percent 	or more 	of his/her duties
performed 	during the 	school 	year 	consist 	of 	directing,
coordinating, 	supervising or administering any or all 	of 	the
following 	functions 	shall 	hold 	a 	valid 	teaching 	or 	service
credential:
(1) 	The work of 	instructors 	and the
instructional program 	for pupils.
(2) 	Educational or vocational 	counseling,
guidance 	and placement 	services.
(3) 	School 	extracurricular activities 	related to,
and an outgrowth of, 	the 	instructional 	and
guidance program of 	the 	school.
(4) 	Planning courses 	of 	study to be used 	in
the public 	schools 	of 	the 	state.
(5) 	The selection, 	collection, 	preparation,
classification 	or demonstration 	of
instructional 	materials 	of 	any course 	of
study 	for use 	in the 	development 	of 	the
instructional 	program 	in the 	schools 	of 	the
state.
(6) 	Research connected with the 	evaluation
and 	efficiency 	of 	the 	instructional
program.
(7) 	The 	school health program.
(8) 	Activities 	connected with the
enforcement 	of 	the 	laws 	relating 	to
compulsory education, 	coordination of
child welfare 	activities 	involving 	the
school 	and the home, 	and the 	school
adjustment of pupils.
(9) 	The 	school 	library services.
L

(10) 	The preparation and distribution of
instructional material.
(11) 	The in-service training of teachers,
principals, 	or other certificated
personnel.
(12) 	The 	interpretation and evaluation of the
school 	instructional 	program.
(13) The examination, 	selection, or
assignment of teachers, principals, 	or
other 	certificated personnel 	involved 	in
the 	instructional 	program.
Section 	45104 	of 	the Education Code provides 	that positions
not 	requiring 	certification 	qualifications 	and 	not 	specifically
exempted 	from 	the 	classified 	service 	according 	to 	the 	provisions
of 	Section 	45103 	or 	45256 	shall 	be part of 	the 	classified
service.
In San Bernardino City Unified 	School 	District 	(1989) 	PERB
Decision No. 	723, 	the Board stated that, 	while it is not
empowered to 	enforce the Education Code, 	it does have 	exclusive
jurisdiction to enforce the 	statutes 	it administers, 	i.e., 	the
Educational 	Employment Relations ACT 	(EERA). 	Citing 	San Mateo
City School District v. 	PERB 	(1983) 	33 Cal.3d 850, 	the Board held
that:
[w]here 	the 	EERA and 	the 	Education Code
address the 	same or similar subjects, 	the
Board properly 	seeks 	a 	resolution which
harmonizes 	the 	legislative 	intent 	underlying
the 	EERA with existing provisions 	of 	the
Education Code. 	Inherent 	in this process 	is
the 	need 	to 	interpret 	the 	Education Code
5See 	San Diego Teachers Association v. 	Superior Court 	(1979)
24 Cal.3d 	1.
5
88

(absent 	an antecedent 	court 	decision which
provides the necessary interpretation).
Id. at p.2.
Thus, 	the Board 	found that 	it 	is within PERB's 	jurisdiction to
interpret 	the provisions 	of 	the Education Code 	in order to 	carry
out 	its 	statutory duty to 	administer the 	EERA.6
EERA 	section 	3545(b)(3) 	provides 	that 	classified and
certificated 	employees 	shall 	not be 	included 	in the 	same
negotiating unit. 	Thus, 	if the High School Auditoriums Manager
is 	found to be a 	classified position, 	it must be removed from the
certificated 	bargaining 	unit.
The 	District argues 	that 	since the High School Auditoriums
Manager position has 	evolved 	into 	a 	non-teaching position and 	no
longer 	encompasses 	any of 	the 	functions 	listed 	in Education Code
Section 44065, 	it does not require certification. 	Therefore, 	it
is 	a classified position and, 	under EERA, 	no 	longer appropriately
in the 	certificated unit.
CTA argues 	that 	the position of 	the High School Auditoriums
Manager 	should 	remain 	in the 	certificated unit 	since 	it 	falls
under Education Code Section 44065(3): 	school 	extracurricular
activities 	(i.e., 	stage productions) 	related to, 	and an outgrowth
of, 	the instructional program of the 	school 	(e.g., 	drama and
music programs).
The record reflects 	that Mr. 	Tischer's 	relationship to the
instructional program of 	the 	school 	(i.e., 	the drama and music
6 See, 	e.g., 	Jefferson School District 	(1980) 	PERB Decision
No. 	133; 	Mammoth Unified School District 	(1983) 	PERB Decision No.
371.
99

programs), 	while important, 	has been peripheral for the past
several years. 	Although complex, 	his duties are not core
components 	of 	the 	"extracurricular" 	activities 	related to 	the
"instructional" 	program. 	They are more in the nature of 	support
services 	of 	such programs. 	The 	students who participate 	in
District productions participate not under Mr. 	Tischer's
direction, 	but under the direction of a teacher present. 	It is 	a
teacher who directs 	the 	substantive 	aspects 	of 	the drama/music
programs. 	Students 	receive no credit 	from Mr. 	Tischer. 	Although
he may hire 	students 	as 	crew members 	on a production, 	he 	is 	not
required to do so. 	Furthermore, 	Mr. 	Tischer spends a significant
amount of his 	time 	in non-District, 	community-related
productions, 	such as performances by the Oakland Ballet and MPAA
theater productions. 	Thus, 	his relationship to extracurricular
activities 	related to 	the 	instructional program of 	the 	school 	is
peripheral, 	and does 	not reasonably 	fall within the meaning of
Education Code Section 44065(3).
CTA asserts 	that there 	are many duties which teachers 	are
required 	to perform 	for which 	certification 	is 	not 	required.
This 	is undisputed; 	however, 	these duties are adjunct to their
primary teaching duties 	for which 	certification 	is 	required. 	The
duties 	of the High School Auditoriums Manager, 	however, 	no 	longer
include teaching duties. 	A certificate 	is 	not required 	to
10

perform these non-instructional duties, 	nor 	is 	it required by the
job description.7
In its brief, 	CTA correctly 	states 	that bargaining history
and 	community of 	interest 	are 	factors 	to 	be 	used 	in determining
the appropriateness 	of a bargaining unit 	or the unit placement 	of
a position. 	However, 	these 	factors 	are not appropriate
guidelines 	for determining 	the 	classified 	or 	certificated 	status
of a position. 	Rather, 	once that status has been determined
pursuant 	to 	the 	relevant 	Education Code provisions 	stated 	above,
bargaining history 	and 	community 	of 	interest 	criteria 	are 	used 	in
ascertaining 	the 	appropriate 	bargaining 	units 	for 	classified 	and
certificated 	employees 	or 	in which 	of 	the 	district's 	established
bargaining units 	a 	disputed position 	should be placed.
CTA alleges 	that 	the 	District 	filed the 	instant petition 	in
an attempt 	to transfer bargaining unit work out 	of 	the
certificated unit without negotiating and, 	in the process,
negotiated directly with Mr. 	Tischer regarding the 	terms 	and
conditions 	of his 	employment. 	Such actions 	have been 	found to be
unfair practices by PERB. 	Therefore8 , 	such allegations 	are
7Although Mr. 	Tischer testified that he 	felt a B.A. 	degree
in Theater was 	necessary to perform this 	job adequately, 	he did
not 	state 	that a 	teaching 	credential was 	also necessary.
Furthermore, 	the 	job description requires 	as 	a minimum
requirement, 	"[g]raduation from high 	school 	or 	equivalent
combination of 	education and 	experience 	in the 	specific 	area 	of
assignment."
8 See, 	e.g., 	Alum Rock Union Elementary School 	District
(1983) 	PERB Decision No. 	322; 	Lake Elsinore School District
(1986) 	PERB Decision No. 	563; 	Muroc Unified School District
(1978) 	PERB Decision No. 	80.
11

properly brought before 	PERB by the 	filing of 	an unfair practice
charge, 	not 	in a unit modification proceeding.9
CTA argues 	that the deletion of 	this position 	from the
certificated unit would result 	in a 	loss 	of 	rights 	and benefits
guaranteed under the 	certificated contract by Mr. 	Tischer. 	The
District 	counters 	this 	argument by 	citing 	Education Code 	sections
44063, 44064 	and 225O410, 	which provide protection for employees
9PERB records 	reflect 	that 	no 	charges were 	filed by CTA
regarding these 	allegations.
10Education Code 	Section 	44063 	provides:
If an employee of a 	school district, 	including a
district having the merit 	system as 	outlined 	in Article
6 	(commencing with Section 45240) 	of Chapter 	5,
employed 	in a 	position requiring 	certification
qualifications 	is 	assigned to a position in the
classified 	service of the 	same district, 	the employee
shall retain all 	sickness 	and injury, 	sabbatical 	leave,
and other rights 	and benefits. 	All 	seniority and
tenure rights 	accumulated by 	the 	employee 	at 	the 	time
of 	assignment 	to 	the position 	in the 	classified 	service
shall be 	secured to 	the 	employee during the period of
time he or 	she occupies 	a position in the 	classified
service. 	The 	employee's 	return to 	certificated 	service
at any time 	shall be 	treated as 	if 	there had not been
an 	interruption 	in his 	or her 	certificated 	service.
Education Code 	Section 	44064 	provides:
If an employee of a 	school district, 	including a
district having 	the 	merit 	system as 	outlined 	in Article
6 	(commencing with Section 45250) 	of Chapter 5,
employed 	in a position in the 	classified 	service 	is
assigned to 	a position 	in the 	same 	district 	requiring
certification qualifications, 	the employee 	shall 	retain
all 	sick leave, 	vacation, 	and other rights 	and benefits
accumulated by the employee at the time he 	or 	she 	is
assigned 	to 	a position 	requiring 	certification
qualifications. 	All 	seniority and permanency rights
shall be 	secured to the 	employee during the period of
time he 	or 	she 	occupies 	a position 	in the 	certificated
service. 	The 	employee's 	return to the 	classified
service 	at any time 	shall 	be treated as 	if 	there had
12

who move 	from 	certificated 	to 	classified 	employment 	and vice-
versa. 	Both arguments miss 	the mark. 	The unit placement of 	the
High School Auditoriums Manager may very well affect Mr. 	Tischer.
However, 	the 	level 	of rights 	and benefits based on unit placement
is 	largely 	irrelevant to the 	inquiry here. 	What 	is 	relevant 	is
whether the position of 	High 	School Auditoriums 	Manager belongs
in the certificated unit. 	It 	is the duties of the position, 	not
the person or the attendant rights 	and benefits 	under the
certificated collective bargaining agreement, 	which are
determinative here. 	If the position is 	found to be classified,
it 	cannot be 	in the 	certificated unit under 	section 	3545(b)(3) 	of
the 	EERA.
CONCLUSION
The position of 	High School Auditoriums 	Manager does 	not
require 	certification under 	Education Code 	Section 	44065 	and 	is
therefore part 	of 	the 	classified 	service under 	Education Code
Section 44104. 	For this reason, 	in addition to those stated
not been an 	interruption 	in his 	or her classified
service.
Education Code 	Section 	22504 provides:
Any person who 	is 	a member who 	subsequently 	is 	employed
by the 	same or a different 	school district 	or by a
county 	superintendent, 	to perform duties which 	require
membership 	in a different public 	retirement 	system 	in
this 	state, 	shall continue to a member, 	unless he
elects, 	in writing and files 	in the office of this
system, 	within 90 days after such entry, 	not to
continue as 	a member in his 	new position. 	This 	section
shall 	also 	apply to 	changes 	in employment on or after
January 	1, 	1976, 	if an election is made or before April
1, 1977.
13

above, 	the High School Auditoriums 	Manager must be removed 	from
the 	certificated bargaining 	unit pursuant 	to 	EERA 	Section
3545(b)(3).
ORDER
For the reasons 	stated above, 	it 	is hereby ORDERED that the
instant unit 	modification petition be GRANTED. 	A unit
modification ORDER reflecting 	the deletion of 	the position of
High 	School 	Auditoriums 	Manager 	from 	the 	certificated 	bargaining
will 	be 	issued by 	the 	Sacramento 	Regional 	Director upon 	issuance
of 	a 	final decision in this 	matter.
Pursuant to California Administrative Code, 	title 	8,
section 32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement of 	exceptions with the
Board 	itself 	at the 	headquarters 	office 	in 	Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the record, 	if 	any,
relied upon for 	such exceptions. 	See California Administrative
Code, 	title 8, 	section 32300. 	A document is considered 	"filed"
when actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.)
on the last day set 	for filing 	". 	. 	. o r when sent by telegraph
or 	certified or Express 	United States 	mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	See California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of 	exceptions
and 	supporting brief 	must 	be 	served 	concurrently with 	its 	filing
14

upon each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany 	each 	copy 	served 	on a party 	or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	sections
32300, 	32305 and 32140.
Dated: 	June 	14, 	1990
Jerilyn 	Gelt
Hearing 	Hearing Officer
15
Hearing,