Stanislaus County Office of Education (PERB 1022E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STANISLAUS COUNTY OFFICE OF )

EDUCATION, )
)
Employer, ) Case No. S-UM-522
)
and ) PERB Decision No. 1022
)

STANISLAUS ASSOCIATION OF ) October 26, 1993
CERTIFICATED PERSONNEL, ) oo
)

Exclusive Representative. }

Appearances: Littler, Mendelson, Fastiff, Tichy & Mathiason by
Patricia P. White and Deanna Mouser, Attorneys, for Stanislaus
County Office of Education; California Teachers Association by
Diane Ross, Attorney, for Stanislaus Association of Certificated
Personnel.
Before Blair, Chair; Hesse and Caffrey, Members.
DECISION AND ORDER

HESSE, Member: This case is before the Public Employment
Relations Board (Board) based on exceptions filed by the
Stanislaus County Office of Education to the proposed decision of
a Board agent (attached hereto) granting a unit modification
petition filed by the Stanislaus Association of Certificated
Personnel (Association.) to add the classification of outdoor

education naturalist to the existing bargaining unit of

certificated employees.

The Board has reviewed the entire record in this case.
Finding the Board agent's proposed decision to be free of
prejudicial error, the Board adopts it as the decision of the
Board itself and directs that the Association's petition for unit

modification be GRANTED.

Chair Blair and Member Caffrey joined in this Decision.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STANISLAUS 	COUNTY OFFICE 	OF
EDUCATION,
Employer,
and
STANISLAUS 	ASSOCIATION OF
CERTIFICATED 	PERSONNEL,
Exclusive 	Representative.
)
)
)
) 	Representation
Case No. 	S-UM-522
(R-77A)
PROPOSED DECISION
(12/24/92)
)
)
)
)
)
)
)
Appearances; 	Littler, 	Mendelson, 	Fastiff 	& Tichy by Patricia P.
White 	for Stanislaus County Office of Education; 	Diane Ross,
Attorney, 	for Stanislaus Association of 	Certificated Personnel.
Before Charles F. 	McClamma, 	Hearing Officer.
PROCEDURAL 	HISTORY
On September 27, 	1991, 	the Stanislaus Association of
Certificated 	Personnel 	(Association 	or 	Petitioner) 	filed a unit
modification petition 	seeking 	to 	add 	the 	classification 	of
outdoor education naturalist1 to 	the 	existing unit 	of
certificated employees 	of 	the 	Stanislaus 	County Office 	of
Education 	(SCOE). 	The SCOE opposed the petition. 	A settlement
conference held on December 11, 	1991, 	failed to resolve the
dispute.
1 Although the 	petition described 	the 	classification as
"outdoor education naturalist," 	the 	job 	titles 	currently 	in use
by 	the 	Stanislaus 	County Office 	of 	Education are 	"certificated
naturalist" 	and 	"classified naturalist." 	These 	titles will 	be
used 	in 	this 	decision when necessary 	to 	distinguish between 	the
two; 	otherwise 	the position will 	simply be 	called 	"naturalist."
The 	Petitioner 	seeks 	to have 	only 	the 	certificated naturalists
added 	to 	the 	certificated unit. 	Classified naturalists 	are 	not
currently in a bargaining unit, 	although 	four classified
bargaining units are 	in place.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

A hearing was held on April 	7, 	1992; 	a transcript was
prepared and briefs were filed. 	On June 23, 	1992, 	the
Association 	filed a motion 	to 	reopen the 	record. 	Although
opposed by the SCOE, 	the motion was granted. 	Additional 	evidence
filed by the Association was 	admitted, 	as was 	rebuttal 	evidence
subsequently filed by the 	SCOE. 	Reply briefs were 	filed, 	and the
case was 	submitted for decision on August 	5, 	1992.
FINDINGS 	OF 	FACT
The 	SCOE provides 	special 	education and alternative
education 	services 	for school 	districts 	and 	students 	throughout
Stanislaus County. 	It operates a school, 	John F. 	Kennedy Center,
in Modesto, 	and the Neal Wade Outdoor Education Center 	(Outdoor
Center), 	located 50 miles west of Modesto in Tuolomne County.
The 	SCOE also 	owns 	classrooms 	at various 	school 	district 	sites,
and utilizes 	facilities 	belonging 	to 	the various 	school 	districts
and to the Modesto Junior College. 	The SCOE's 	funding 	is
provided 	from the Special 	Education Local 	Plan Area 	(SELPA);
school 	districts may elect 	to 	receive 	funds 	from the 	SELPA with
which 	to 	run their own programs 	or to contract with the 	SCOE 	to
run programs. 	A substantial 	number of 	the 	school 	districts
within Stanislaus 	County have at 	least 	some 	of 	their 	special
education 	services 	provided by the 	SCOE.
The Association was 	certified as 	exclusive 	representative 	on
March 10, 	1977.2 Certificated personnel 	in the 	following
2PERB 	records 	indicate 	the Association and 	the 	SCOE 	entered
into a Consent Election Agreement on February 9, 	1977, 	in which
they agreed 	to 	the unit 	described 	in 	the 	certification. 	Although
N
	2

classifications were 	included 	in the unit: 	audiologist,
audiometrist, 	teacher of 	the 	communicatively handicapped,
certificated 	developmentally 	delayed 	program 	classroom 	teacher,
certificated 	infant 	specialist, 	learning handicapped 	classroom
teacher, 	learning disorders 	classroom teacher, 	certificated
nurse, 	physically handicapped classroom teacher, 	remedial
physical 	education 	classroom teacher, 	resource 	specialist
classroom teacher, 	and speech therapist. 	Employees 	specifically
excluded were management, 	confidential, 	and non-certificated
employees, 	day-to-day substitutes, 	consultants, 	program
specialists, 	and school psychologists.
there 	is no mention of naturalists 	in that agreement, 	a letter
dated February 5, 	1977, 	from the Association's president 	to PERB
indicates 	the parties 	agreed 	to 	the 	exclusion of 	physical
therapists, 	occupational therapists, 	and naturalists.
The 	SCOE has 	approximately 	160 	certificated employees; 	their
job 	classifications 	reflect 	their diverse duties. 	These
certificated employees also work in a variety of 	settings. 	For
example, 	a special 	education teacher conducts a class 	for
students 	with 	severe 	language 	disorders 	in a 	classroom which 	is
owned by 	the 	SCOE, 	but 	located at 	a Modesto City Schools
elementary school. 	Home and hospital 	teachers visit 	students who
are unable 	to attend 	regular 	classes 	because 	they are 	confined 	to
a hospital 	or home. 	Audiologists provide hearing 	tests 	for
students 	at 	the SCOE's administrative 	offices 	in Modesto.
33

Naturalist 	Job 	Duties
The 	SCOE 	employs 	four 	certificated 	and 	two 	classified
naturalists, 	all 	of whom work at 	the Outdoor Center. 	In addition
to 	the primary 	responsibility 	of 	leading 	students 	on nature
hikes, 	the naturalists lead students 	in recreational activities,3
serve as 	evening naturalist, 	and serve as health coordinator.4
These 	tasks 	are 	rotated on a weekly basis. 	Naturalists 	also
supervise 	students 	at breakfast 	one day per week, 	may drive 	a bus
on field trips, 	and prepare evaluations 	of high school
counselors.5
Sixth graders 	from various 	school 	districts, 	primarily
within Stanislaus 	County,6 are brought 	to 	the Outdoor Center 	for
a 	five-day visit, 	Monday through Friday. 	They are housed 	in
dormitories 	at 	the Outdoor Center. 	During 	the day they hike and
go 	on 	field trips 	led by the naturalists, 	who 	impart 	information
about ecology, 	geology, 	native American history, 	and
conservation. 	Hikes 	are 	conducted 	from 9:00 	a.m. 	until 	3:30
p.m., 	with one half-hour break.
3The 	recreation program includes 	square dancing, 	camp 	fire,
and 	free 	play.
4As 	health 	coordinator they are 	in 	charge 	of 	health
services, 	which requires reviewing students' 	health forms,
administering medication, 	and working with students 	who are 	ill
or 	injured.
5These are high 	school 	students who serve as 	counselors 	in
the 	dormitories where 	the 	student visitors 	are housed.
6Some of 	the students, 	but not a majority, 	are enrolled at
the SCOE.
4

While naturalists 	are 	not 	required 	to prepare weekly 	lesson
plans, 	plans 	are a necessary part 	of 	their preparation for the
hikes. 	The 	students 	are assigned exercises which usually are 	to
be 	completed during 	the 	hike. 	They are 	not 	graded on 	their
performance by the naturalists. 	However, 	the naturalists monitor
the 	students' 	success 	in meeting the established goals and
objectives 	of 	the 	hikes 	through observation during 	the 	hikes 	and
a 	review of 	journals 	kept by the 	students.
A naturalist 	is 	assigned a 	group 	of 	students 	from different
classes 	and 	schools. 	One 	classroom teacher generally accompanies
the naturalist 	to provide support, 	as necessary, 	and to help with
discipline.7 These 	classroom teachers 	have 	no 	responsibility 	for
instruction during 	the hikes.
The naturalists' 	work week is 	40 hours, 	and their work year
is 	165 	days. 	They may receive 	compensatory time 	off 	for work 	in
excess 	of 	40 	hours per week. 	They do not work when the 	Outdoor
Center 	is 	closed from the 	last week of June 	through July, 	on
holidays, 	and an additional 	five weeks during the year.
Certificated naturalists 	are paid monthly 	on a 	12-month 	contract
and 	contribute 	to 	the 	State 	Teachers 	Retirement 	System.8
7Certificated naturalists may, 	and occasionally do, 	lead
hikes 	without 	a 	classroom teacher present; 	classified naturalists
are 	supposed 	to be 	accompanied by a 	classroom teacher 	on all
hikes. 	This 	is 	the 	sole distinction between the duties 	of 	the
certificated 	and 	the 	classified 	naturalists.
8The 	record does 	not 	indicate whether the 	same applies 	to
classified naturalists.
55

Naturalists 	do 	not 	serve 	a probationary period nor do 	they
achieve permanent 	status.9
Job 	Qualifications
The 	SCOE 	required a 	credential 	for all 	naturalists 	from 	1979
until 	19 86, 	when it determined that 	its most highly qualified
applicants 	for the position were 	its naturalist 	interns, 	who
usually lacked 	credentials. 	Job descriptions 	prepared 	in June 	of
1988 	for 	"Classified Naturalist" 	and 	"Certificated Naturalist"
reflect 	that 	change 	in policy. 	Currently, 	four of 	the SCOE's 	six
naturalists possess credentials; 	of those four, 	two have a
multiple 	subject 	credential 	and 	two have 	a vocational
credential.10
The 	job 	description 	for 	the position of 	classified
naturalist requires a B.S. 	or B.A. 	degree, 	while that of the
certificated 	naturalist 	requires 	an 	"appropriate 	teaching
credential." 	As 	recently as 	late 	1991 	the SCOE promulgated a
9As 	noted previously, 	the 	record 	in this 	case was 	reopened
following 	the 	hearing at 	the 	request 	of 	the Association and 	over
the objection of 	the 	SCOE. 	The 	"new" 	evidence 	consisted of a
declaration 	from a 	certificated 	naturalist 	and 	two 	supporting
documents. 	One 	of 	the documents was 	a 	form received by the
naturalist 	from the 	SCOE 	entitled 	"Notice 	of 	Intention Relating
to 	Employment 	as 	a Certificated Naturalist," 	in which the 	signer
may agree 	to 	serve 	as 	a 	certificated employee 	for 	the 	ensuing
school 	year. 	The 	other was 	a memo 	from the SCOE 	requesting 	that
the aforementioned 	form be 	disregarded. 	I 	find this 	evidence 	to
be 	cumulative as 	to the 	issue of 	the status 	of 	certificated
naturalists, 	and I did not 	rely on it 	in reaching the decision in
this case.
10At 	hearing an 	issue was 	raised 	concerning whether 	the
vocational 	credential 	was 	legally sufficient 	to permit 	the
certificated naturalist 	to 	supervise 	students 	in the 	absence 	of 	a
classroom teacher. 	The 	issue was not 	resolved, 	and is not viewed
as dispositive of 	the 	central 	issue 	in the 	case.
66

"Position Announcement" 	which disclosed a 	job 	opening 	for either
a 	certificated 	or 	classified naturalist; 	the 	announcement
indicates 	the 	certificated position requires a B.S. 	or B.A.
degree and appropriate 	credential, 	while 	the 	classified position
requires 	a degree 	only. 	Other listed requirements 	for the 	two
classes, 	including 	"knowledge", 	"ability", 	and 	"experience", 	are
similar, 	but not 	identical. 	The announcement 	also 	indicates
certificated naturalists 	receive 	a higher hourly 	rate 	of 	pay.11
Evaluations
Naturalists 	are 	evaluated once 	each year by 	the Director of
Outdoor Education. 	Following observation of several hikes, 	the
director 	and naturalist 	discuss 	whether goals 	and 	objectives 	have
been met. 	The director also 	issues 	a written evaluation
utilizing a 	five 	page 	evaluation 	form which 	requires 	an appraisal
of 	a wide variety of 	performance 	factors 	grouped under 	the
following categories: 	hike management, 	instructional 	techniques,
interactions with students, 	personal goals, 	and overall
evaluation.12
11The SCOE's July 1, 	1991, 	"Hourly Positions" pay schedule
confirms 	this difference, 	and also reveals 	the 	following 	"career
ladder" 	for naturalists: 	Classified Naturalist 	(Phase I ) ;
Classified Naturalist/Bus Driver 	(Phase 	II); 	Certificated
Naturalist 	(Phase 	III); 	Certificated Naturalist/Bus Driver 	(Phase
IV); and Head Naturalist.
12Specific 	examples 	of 	factors 	evaluated are whether 	the
naturalist teaches at 	the students' 	level, 	uses 	interesting and
appropriate 	teaching 	techniques, 	and monitors 	students 	frequently
to ascertain the 	level 	of 	comprehension.
7

The 	Existing 	Certificated 	Bargaining 	Unit
Employees 	in 	the 	certificated unit 	are paid 	on a 	12-month
calendar, 	although 	individuals may request 	that 	the 	final 	two
salary warrants be 	issued 	in June. 	Most 	teachers 	in the unit
work a 	traditional 	182 	day year; 	the 	remainder are primarily
those who are 	assigned to 	sites 	with year-round programs.
Certificated 	staff 	evaluations 	begin with 	a meeting between 	the
supervisor to discuss goals and objectives, 	followed by the
supervisor's 	observation of the employee, 	an evaluation, 	and a
review 	thereof.
The 	SCOE's 	certificated bargaining unit positions 	are
grouped 	into 	four major 	categories: 	regular employees,
designated 	instructional 	services, 	special 	education classroom
teachers, 	and special 	education 	classroom teachers 	of 	the
severely handicapped. 	The 	four 	categories 	are 	further 	subdivided
into 	14 	"subgroups." 	When meetings 	of 	certificated staff 	occur,
they are most 	likely 	to be with staff 	"subgroups" 	rather than
with 	"categories" 	or with the 	entire 	certificated staff.
The 	"regular employee" 	subgroups are audiologist, 	school
nurse, 	resource specialist, 	and 	"alternative education programs,"
which 	includes 	juvenile hall 	teacher, 	and community classroom
teacher.
Audiologists 	perform student 	hearing assessments, 	primarily
at 	the 	SCOE's 	administrative 	office 	in Modesto. 	They are
required 	to have 	a master's 	degree 	in audiology and a 	California
State 	School Audiologist 	Credential. 	This 	credential 	does not
8

authorize 	classroom teaching. 	They work a 	"traditional" 	year of
182 	days: 	September through June with the 	summer off.
Employees 	in the 	classification of 	school 	nurse are 	required
to have 	a 	registered nurse 	license 	and a 	credential 	authorizing
service as a school nurse. 	However, 	this 	credential does not
authorize 	classroom teaching. 	The 	SCOE also employs a non-
certificated nurse who 	is 	in a 	classified unit.13 Both 	the
certificated and 	classified nurses 	work at 	the 	JFK 	School 	and at
district 	sites, 	performing similar duties, 	including treatment of
children and 	in-service 	training 	of 	staff.
The 	resource 	specialist 	generally performs 	according 	to 	one
of 	two alternative models: 	pull-out 	or collaborative. 	Under the
former, 	when special 	remediation 	is 	required the 	specialist
"pulls" 	a student 	out 	of 	a 	classroom to a portable 	classroom
assigned to 	the 	resource 	specialist. 	Under the 	latter model, 	the
specialist 	goes 	into a 	classroom to provide 	specialized help 	or
to develop a 	lesson. 	Resource 	specialists 	generally have a work
year which follows 	that 	of 	the 	site at which they work, 	e.g., 	176
days at a year-round site, 	and 182 	days at a traditional 	site.
Their primary professional 	interaction 	is 	with 	the 	certificated
staffs 	of 	the districts, 	rather than the staff of 	the SCOE.
Both 	juvenile 	hall 	and 	community 	classroom teachers 	have 	a
rapid 	turnover 	in their students. 	Juvenile hall 	teachers 	oversee
13The 	record does 	not 	contain a 	job description 	for the non-
certificated nurse. 	The 	current 	classified 	collective bargaining
agreement 	(Employer Exhibit H) 	lists 	"Clinical Nurse" 	and 	"Nurse"
in the paraprofessional 	unit.
99

the 	educational 	programs 	for students 	in the 	juvenile hall
facility. 	The 	community 	classroom teacher 	teaches 	four hours 	per
day 	in a 	self-contained 	class 	of 	students 	who have 	disciplinary
problems but 	are not 	in the 	juvenile hall 	facility.
The 	second major category 	of 	certificated 	staff 	is 	that 	of
"designated 	instructional 	services," 	which includes 	the 	following
subgroups: 	adapted physical education, 	home and hospital, 	speech
therapist, 	and visually and mobility 	impaired. 	The adapted
physical 	education 	teachers 	travel 	from site 	to 	site working with
physically handicapped 	students 	and using 	the 	pull-out 	or
collaborative models 	utilized by 	resource 	specialists.
Home and hospital 	teachers 	are 	assigned to 	students 	who are
hospitalized or 	confined at 	home because 	of medical 	conditions.
They 	follow the 	curriculum of 	the 	school 	which 	the 	student 	would
otherwise 	attend.
Speech 	therapists work at 	a 	site 	like 	the JFK School 	or
travel 	from site 	to site. 	They teach language 	skills, 	and use
either the pull-out 	or collaborative model. 	Most 	of 	their
interaction 	is with district 	teachers, 	and they do not 	assign
grades.
The 	remaining 	two 	categories 	of 	certificated 	staff 	include
special 	education classroom teachers. 	They have 	a 	fairly
constant 	group of 	students 	for the school year, 	and in that
respect, 	are more 	like 	traditional 	classroom teachers 	than the
SCOE 	certificated 	staff 	discussed above. 	They have 	a variety 	of
student populations, 	such as 	students with severe learning
10

disabilities, 	students with severe behavioral problems, 	and
students with multiple handicaps.
ISSUE
Should 	the 	certificated naturalists 	be 	included 	in 	the
certificated 	unit?
POSITIONS 	OF THE 	PARTIES
The SCOE objects 	to the 	inclusion of naturalists 	in the
certificated bargaining unit, 	noting 	especially 	that 	a 	teaching
credential 	is not 	required for employment as a naturalist. 	It
asserts 	that naturalists are part 	of 	the 	classified service, 	and
that 	they 	share 	a greater 	community of 	interest 	with 	classified
employees. 	Finally, 	the SCOE argues 	that 	the efficiency of 	its
operations 	would be 	disrupted 	if 	naturalists were 	to be 	divided
between 	the 	certificated unit 	and a 	classified unit 	or
unrepresented 	group.
The Association emphasizes 	that 	it 	seeks 	to 	represent 	only
certificated naturalists, 	which, 	it argues, 	are required to hold
a 	credential 	pursuant 	to 	Education Code 	sections 	44065 	and 44066.
It 	further argues 	that 	certificated naturalists 	share 	a
substantial 	community of 	interest with other classifications 	in
the 	certificated bargaining unit 	which warrants 	their placement
in that unit. 	Because of this 	community of 	interest, 	rebuttal 	of
the 	Peralta14 presumption is not possible. 	Therefore,
14Peralta 	Community College District 	(1978) 	PERB Decision No.
77, 	is generally cited for the proposition that a single unit 	of
certificated personnel 	should be 	established unless 	community of
interest 	factors 	compel 	establishment 	of 	additional 	certificated
units.
11

certificated 	naturalists 	must 	be 	included 	in 	the 	certificated
unit.
DISCUSSION
Certificated 	Naturalist 	as 	a Distinct 	Classification
Analysis 	of 	this 	case must begin with the 	resolution of
whether 	"certificated naturalist" 	is 	a distinct 	classification.
The 	essence 	of 	the 	SCOE's 	argument 	concerning 	this 	question 	is
that 	there 	is 	only one classification, 	naturalist, 	and the 	fact
that 	some 	incumbents 	in the 	class possess 	credentials 	is
incidental 	and basically 	irrelevant. 	The 	SCOE 	asserts 	and places
considerable 	reliance 	on 	two 	facts: 	that 	neither the 	Education
Code nor 	the 	SCOE 	requires 	a naturalist 	to possess 	a 	certificate
or credential. 	It 	is perhaps more accurate 	to 	say that a
credential 	is not 	required of all 	naturalists.
In Alum Rock Union Elementary School 	District 	(1983) 	PERB
Decision No. 	322, 	the Board defined 	"position" 	as 	"a group of
duties 	and 	responsibilities 	which are 	intended 	to be 	performed by
one 	employee." 	A 	"classification" 	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.
Those 	criteria and the 	evidence 	support 	the 	conclusion that
the 	certificated naturalist 	exists 	as 	a distinct 	classification
at 	the SCOE. 	The most persuasive evidence 	consists 	of 	the
specific 	references 	to such a 	class 	in a 	job description and 	in
job announcements, 	which 	identify the position as 	"certificated
12

naturalist" 	and specify that 	a credential 	is 	required.
Additional 	support 	is provided by 	the 	existence 	of 	a 	job
description and 	announcement 	for 	"classified naturalist," 	which
differ 	from those 	of 	certificated naturalists 	in key respects.
Finally, 	the 	classification appears as a distinct 	"title" 	on the
SCOE's 	"Hourly Positions" 	pay schedule.
The 	fact 	that 	not all 	naturalists 	are 	required to have
credentials 	is more 	supportive 	of 	a 	conclusion that 	the
classification of 	"classified naturalist" 	exists 	as 	a 	separate
class 	than of 	the 	SCOE's 	position 	that 	"certificated naturalist"
does 	not 	exist. 	Notwithstanding 	its 	right 	to have 	established
only a non-credentialed naturalist 	class, 	the 	SCOE 	in 	fact
established15 and 	filled 	a 	classification 	expressly 	requiring
credentials, 	and called it 	"certificated naturalist."
Status 	of 	Classification
The 	SCOE argues 	that naturalists 	are not 	required to have
certification qualifications, 	therefore, 	naturalists are part of
the 	classified service. 	In support 	of 	this argument 	the SCOE
cites Modesto City School District 	(1991) 	PERB Decision No. 	884,
where 	the 	Board 	considered a unit 	modification petition 	in which
the 	employer 	sought 	removal 	of 	a position 	from a 	certificated
bargaining unit. 	The position, 	high school auditoriums manager,
had been newly 	created by 	the 	employer as 	a 	classified position,
15As noted previously, 	the SCOE's 	early practice was 	to
require 	credentials 	for all 	naturalists. 	It was not until 	1986
that 	the District 	also began hiring naturalists 	without
credentials.
13

but because 	the 	incumbent 	in the position held a 	teaching
credential 	and had been 	employed 	as 	a 	certificated 	employee 	for a
number of years, 	both the status 	and the unit placement 	of 	the
position were 	in dispute. 	The Board held 	it was 	necessary
initially 	"to determine 	the 	status 	of 	the 	classification or
position 	(and therefore the duties) 	under the Education Code."
The 	Board agreed with the 	finding of 	the 	Board agent 	that 	the
duties 	of 	the position did not 	require 	certification under
Education Code 	section 44065,16 and was 	thus 	a part 	of 	the
classified 	service.
The 	facts 	in this 	case distinguish 	it 	from Modesto 	in
significant 	respects. 	The 	Board 	in Modesto 	expressly 	found 	there
was no evidence 	that 	the duties 	of 	the auditoriums manager
included, 	or were an outgrowth of, 	instructional program
activities. 	This 	is 	in marked contrast 	to the 	evidence 	in the
instant 	case, 	which discloses 	that much of 	the naturalists' 	work
"Section 44065 provides, 	in pertinent part, 	that any person
employed by a 	county superintendent 	of 	schools 	in a position 	in
which 	50 	percent 	or more 	of 	the 	employee's 	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.
(3) 	School 	extracurricular activities 	related
to, 	and an outgrowth of, 	the instructional
and guidance program of 	the 	school.
14
.............................................

involves 	giving 	students 	special 	knowledge 	or 	information
concerning ecology, 	geology, 	history and conservation.17
That 	these 	duties 	are 	instructional 	is 	corroborated by 	two
additional 	facts. 	Even 	if 	accompanied on a hike by a 	classroom
teacher, 	the 	classroom teacher 	is 	responsible 	only 	for assisting
with discipline, 	leaving the naturalist 	as 	the 	only person
responsible 	for making 	the 	hike an 	educational 	experience.
Secondly, 	the naturalist 	job evaluation 	form requires 	an
appraisal 	of 	the 	naturalist's 	instructional 	and 	teaching
techniques.
In support 	of 	its position that 	naturalists 	are not
performing 	instruction, 	the SCOE notes 	that naturalists are not
required 	to 	assign grades 	or to 	leave 	lesson plans 	for
substitutes. 	While 	these are 	tasks 	associated with traditional
teaching duties, 	their absence does 	not 	detract 	from the
instructional nature of the naturalists' 	primary duties.
The SCOE asserts that Education Code section 8760 (b)18
17To 	"instruct" 	is 	"to give special knowledge 	or information
to." 	Webster's 	Third New International 	Dictionary 	(1976) 	page
1172.
18Section 8760 provides, 	in part, 	as follows:
(a) 	The governing board of any school
district may do 	the 	following:
(1) 	Conduct programs and classes 	in outdoor
science 	education 	and 	conservation 	education
within or without 	the boundaries 	of 	the
district 	and 	for 	that 	purpose 	employ
instructors, 	supervisors, 	and other personnel
and provide 	necessary 	equipment 	and 	supplies.
. . . . . . . . . . ..
15
...............................................

"makes 	it 	clear that 	naturalists are 	classified employees" 	by
requiring 	that 	they be 	supervised by a 	certificated 	teacher.
Section 	8760(b) 	authorizes 	the governing board of 	a 	school
district 	or a 	county superintendent 	of 	schools19 to 	contract 	with
an outside provider for the 	services 	of 	naturalists, 	and requires
such naturalists 	to be 	supervised by a 	certificated 	employee.
However, 	the 	SCOE has not 	contracted with an 	"outside provider"
for the services of naturalists;20 rather, 	it has, 	pursuant to
section 8760(a), 	conducted programs 	in outdoor science education
"and 	for that purpose employ[ed] 	instructors." 	To impose 	the
requirements 	of 	section 	8760(b) 	on the SCOE's naturalists
requires 	an unreasonable 	statutory 	interpretation.21 Further,
(b) 	The governing board of any school 	district may
contract 	with an outside provider 	for the 	services 	of
naturalists. 	. 	. 	. 	Any naturalist under contract with
the 	governing board of 	a 	school 	district 	pursuant 	to
this 	section and all 	services 	provided by a 	naturalist
shall 	be under 	the 	supervision 	of 	a 	certificated
employee of the school district. 	. 	. 	.
19Education Code 	section 	8765 makes 	section 	8760 	also
applicable 	to 	county superintendents.
20The 	fact 	that 	school 	districts within Stanislaus 	County
have 	contracted with 	the 	SCOE 	to 	furnish naturalists 	does 	not
convert 	the 	SCOE 	employees 	into 	employees 	of an outside provider.
21The 	requirement 	of 	section 8760 (b) 	relied upon by the 	SCOE
actually provides 	support 	for a contrary conclusion, 	i.e., 	that
the SCOE's 	naturalists are 	certificated. 	The 	requirement 	in
section 	(b) 	that naturalists 	"under contract" 	be 	supervised by
certificated employees appears 	to 	relate 	to 	"outside providers"
only. 	No similar requirement 	is present 	in section 	(a), 	which
pertains 	to 	instructors 	who are 	employed 	rather 	than under
contract. 	One 	reasonable 	interpretation of 	the 	legislative
intent 	is 	that 	"employed" 	naturalist 	instructors 	should be
certificated, 	and, 	therefore, 	do not require certificated
supervision.
16

even assuming 	that 	both 	"employed" 	and 	"contracted" 	naturalists
must be 	supervised by a 	certificated employee, 	it 	does 	not
necessarily 	follow 	that 	the 	supervised employee 	is 	classified.
Accordingly, 	at 	least half 	of 	the duties 	of 	certificated
naturalists 	are 	concluded 	to be 	instructional 	services.
Therefore, 	pursuant 	to Education Code section 44065, 	they are in
a position 	requiring 	certification 	credentials 	and 	are
certificated 	employees.22
Unit 	Placement
The unit modification petition, 	filed pursuant 	to PERB
Regulation 32781 (a) (I),23 seeks to add certificated naturalists
to 	the existing unit. 	A determination of 	the appropriateness 	of
22A1though the 	issue need not be decided in this 	case, 	it
would appear 	that 	even if 	certificated naturalists 	were 	deemed
not 	to require 	certification qualifications pursuant 	to Ed. 	Code
section 44065, 	because 	the 	SCOE designated the position as
certificated, 	persons 	in such positions would be 	deemed to be
certificated pursuant 	to section 44066. 	Section 44066 provides,
in pertinent part, 	that any person who had served 	in a position
for which 	certification not 	necessitated by 	statute 	had been
required and which was 	designated by 	the 	governing board as 	a
position 	requiring 	certification 	qualifications
shall 	be 	deemed to be 	an employee 	in
a 	position 	requiring 	certification
qualifications 	for as 	long as 	he 	or
she 	holds 	such 	position 	. . . .
23That 	regulation provides as 	follows:
(a) 	A recognized or 	certified employee
organization may 	file 	with 	the 	regional
office 	a petition 	for modification of 	its
unit(s):
(1) 	To add to the unit
unrepresented 	classifications 	or
positions;
17

a unit 	is made based upon 	criteria 	set 	forth 	in 	the 	Educational
Employment Relations Act 	(EERA) 	section 3545(a):
. 	. 	. 	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.
Community of 	interest 	is not 	the 	only 	factor to be
considered, 	but 	it 	is an important 	one. 	The certificated
naturalists 	share 	a 	community of 	interest 	with unit members 	which
is 	derived 	fundamentally 	from the 	fact 	that 	both groups 	are
credentialed, 	deal 	directly with children, 	and share a common
goal 	of providing services 	to 	the 	school 	districts 	in Stanislaus
County.24 While 	certificated naturalists 	differ 	in 	significant
respects 	from some 	classifications 	in 	the 	certificated unit,
emphasis 	on those differences 	is unwarranted in light 	of 	the
great 	diversity of 	the existing unit, 	which includes 	a variety of
instructional 	personnel 	working 	in different 	settings 	ranging
from classrooms 	to hospital 	rooms, 	and which also 	includes 	such
non-instructional 	personnel 	as 	audiologists 	and nurses.25
.. .
24In Kings 	County Office 	of 	Education 	(1990) 	PERB Decision
No. 	801, 	the Board approved a unit modification which sought 	to
add nurses 	to an existing 	certificated unit, 	finding 	their 	common
goal 	to be 	"providing 	service 	to 	. . . 	school 	districts 	which
lack the 	resources 	to provide 	such services 	on their own."
25The 	diversity of 	the 	existing unit 	is 	the primary reason
for the 	failure 	of 	the SCOE 	to 	rebut 	the 	Peralta presumption.
Several 	of 	the 	"decisive distinctions" 	in Peralta between
certificated 	Skills 	Center 	employees 	and 	the 	other 	college
faculty which were 	found 	to 	rebut 	the presumption 	in 	that 	case
are absent here. 	For example, 	in Peralta the Board identified
two of 	these 	"distinctions" 	to be 	"differing 	instructional
18

Further, 	differences in wages, 	hours, 	and other terms and
conditions 	of 	employment 	are 	subject 	to 	collective bargaining.
Disparities 	frequently 	exist 	between 	represented 	and
unrepresented 	classifications 	largely as 	a 	result 	of 	collective
bargaining. 	(Los Rios 	Community College District 	(1977) 	EERB
Decision No. 	18.)26 Moreover, 	even if such differences were to
continue, 	they are not 	sufficient 	to disrupt 	the 	fundamental
community of 	interest which exists.
The 	SCOE 	argues 	that 	the 	certificated naturalists 	do not
share 	a 	community of 	interest 	with employees 	in 	the 	existing
unit. 	In support of this 	conclusion, 	the SCOE asserts a number
of 	differences 	exist 	between naturalists 	and certificated unit
employees, 	including the source of 	salary monies, 	the right 	to
earn tenure, 	the extent 	of 	interaction between the 	two groups,
and the 	need to possess 	a 	credential. 	For reasons previously
stated, 	this 	last 	asserted fact 	is 	rejected as 	not 	supported by
the 	record; 	the 	SCOE does 	require 	its 	certificated naturalists 	to
have a 	credential. 	The 	remaining differences 	either are
unsupported by 	record 	evidence 	or unpersuasive.
The 	SCOE asserts 	that 	the 	source 	of 	the 	funding 	for
naturalists 	is 	the 	fee paid by 	students 	attending 	the 	Outdoor
Center. 	The SCOE states 	that 	this 	funding 	is dependent upon the
practices 	and working 	conditions" 	and 	"differences 	in 	curriculum
and educational 	purpose." 	Such distinctions 	already 	exist 	among
the 	classifications 	in the 	SCOE's 	established certificated unit.
26Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment 	Relations 	Board.
19

continued willingness of 	students' 	families 	to pay the 	fee, 	and
thus, 	the viability of 	the program is 	outside 	the 	control 	of 	the
SCOE.27 However, 	the 	record evidence 	for this assertion is
insubstantial. 	There was no 	testimony on this 	issue; 	documentary
evidence 	exists 	in the 	form of a 	sample 	of 	the 	"Agreement 	for
Outdoor 	Education" 	entered 	into by 	the 	SCOE 	and 	school 	districts
(Employer Exhibit A ) , 	which lists the costs 	for the five-day
visit 	to 	the 	Outdoor Center and provides 	for a 	transfer 	of 	funds
from a district 	to 	the SCOE upon completion of 	the attendance 	of
the district's 	students. 	Section D.2 	of 	this agreement provides
that 	"[r]efunds 	shall 	not be granted to any pupil 	sent 	home 	for
disciplinary reasons." 	This 	is 	insufficient upon which to base 	a
finding 	that 	funding 	for naturalists 	is 	dependant 	upon 	student
fees. 	Perhaps more 	important, 	even if 	funding for the
naturalists were dependent on student 	fees, 	this appears 	to be
scarcely more uncertain a 	funding 	source 	than 	that 	of 	the 	other
SCOE programs, 	which are dependent upon districts 	choosing 	to
utilize 	the 	SCOE 	rather 	than providing 	special 	education programs
themselves.
The 	record does 	support 	the SCOE's 	assertion that
naturalists 	have not been extended tenure. 	However, 	this 	fact
does 	not 	provide meaningful 	evidence 	of 	a difference 	in the
absence 	of 	evidence 	of 	the 	extent 	to which tenure has been
27This, 	according to the SCOE, 	is analogous to the facts 	in
Peralta where 	the 	Skills 	Center 	teachers 	were 	federally 	funded.
20

extended 	to all 	other classifications 	within the 	certificated
unit.
The 	record also 	supports 	the 	SCOE's 	assertion 	that 	the
naturalists 	have minimal 	contact 	with other 	certificated 	SCOE
employees. 	The 	limited 	interaction which does 	occur 	is primarily
a 	result 	of 	SCOE 	teachers bringing SCOE 	students 	to 	the Outdoor
Center. 	I conclude, 	however, 	that this 	is entitled to little
weight 	here because 	it 	is 	also 	characteristic 	of 	other unit
employees who work at sites 	such as hospitals, 	student homes, 	and
the SCOE administrative 	offices.
Another 	factor which 	is 	often 	considered 	in evaluating unit
modification requests 	is 	the 	effect 	the modification will 	have 	on
the 	collective bargaining process. 	The 	SCOE 	contends bargaining
will 	be 	impeded 	if 	naturalists were 	in the 	certificated unit.
This 	argument 	is 	supported only by 	the bare 	assertion of 	the
SCOE's Assistant 	Superintendent 	for Human Resources 	that
it would 	impede 	the 	efficiency of 	the
operation of 	this 	office 	to have 	two groups
represented by 	two 	different 	units 	when 	they
essentially 	-- 	they do exactly the 	same work.
(Hearing transcript, 	p. 	117)
This 	conclusion lacks 	sufficient 	detail 	to be persuasive.
Further, 	the 	certificated and 	classified units 	both 	currently
include nurses, 	yet no evidence was presented indicating
bargaining has 	been 	impeded as 	a 	result 	of 	this 	splitting 	of
similar 	classifications 	between 	two units.
There 	is 	no 	evidence 	indicating 	certificated naturalists
have 	interests 	so 	separate 	from current 	certificated unit
21

employees 	that 	bargaining 	would be 	adversely affected by 	their
addition 	to 	the unit. 	To 	the 	extent 	that 	their 	interests 	are
different, 	these differences 	are 	insufficient 	to negate 	the
community 	of 	interest 	and do 	not 	require 	excluding 	them 	from the
unit. 	(See Santa Clara County Office of 	Education 	(1990) 	PERB
Decision No. 	839.)
Finally, 	the 	remaining 	factor which is 	relevant 	to this unit
determination 	is 	what 	likely effect 	the 	decision will 	have upon
employee bargaining rights. 	In this 	case, 	the certificated
naturalists may not be placed 	in one 	of 	the 	existing 	classified
units. 	Not 	only 	is 	there a statutory proscription against
including 	classified and 	certificated 	employees 	in 	the 	same
unit,28 PERB also 	lacks 	the authority 	"to 	force an employee
organization to 	represent 	employees 	against 	its will." 	(Long
Beach Community College District 	(1989) 	PERB Decision No. 	765.)
Further, 	there 	is 	only one 	existing 	certificated bargaining unit,
and 	excluding 	the 	certificated naturalists 	from that 	unit 	would
leave 	them unrepresented.29 Granting 	the 	unit 	modification not
28Government 	code section 3545 (b) 	states 	in pertinent part:
In all cases:
. . . . . . . .
(3) 	Classified employees 	and 	certificated
employees 	shall 	not 	be 	included 	in the 	same
negotiating unit.
29The possibility of 	a 	second 	certificated unit 	consisting
solely of 	certificated naturalists 	presents 	a more 	serious 	threat
to 	the SCOE's 	efficient 	operation than does 	the 	instant unit
modification. 	In Gilroy Unified School District 	(1979) 	PERB
Decision No. 	98, 	the Board observed that placing six pre-school
22

only is 	consistent with other unit appropriateness 	criteria, 	it
preserves 	the 	certificated naturalists' 	collective bargaining
rights.
and permit 	teachers 	in a 	separate unit 	"would not 	be appropriate,
in 	that 	it would 	fragment 	the bargaining unit 	and 	impair 	the
efficiency of 	the 	[employer's] 	operations."
CONCLUSION
Based on the 	findings of 	fact, 	conclusions of 	law, 	and the
entire 	record, 	the Association's unit modification petition 	is
GRANTED.
Pursuant 	to California Code of Regulations, 	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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must be 	served
concurrently with 	its 	filing upon each party to 	this proceeding.
23

Proof 	of 	service 	shall 	accompany each 	copy 	served 	on a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Charles F. 	McClamma
Hearing 	Officer
24
(