Lompoc Unified School District (PERB 0013E)

STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
LOMPOC UNIFIED SCHOOL DISTRICT,
Employer
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LOMPOC EDUCATION ASSOCIATION, CTA/NEA,
Employee Organization
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LOMPOC FEDERATION OF TEACHERS, LOCAL 3151,
CFT/AFT, AFL-CIO,
Employee Organization
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) 	Case Nos. LA-R-38
LA-R-268
EERB Decision No. 13
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Appearances: 	J. Michael Taggart, Attorney (Paterson & Taggart), for the Lompoc
Unified School District; Charles Gustafson, Attorney, for the Lompoc Education
Association, CTA/NEA; Robert Bezemek, Attorney (Van Bourg, Allen, Weinberg &
Roger), for Lompoc Federation of Teachers, Local 3151, CFT/AFT, AFL-CIO.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
On April 1, 1976, Lompoc Education Association (LEA) and Lompoc Federation
of Teachers (LFT) 	filed with the Lompoc Unified School District separate requests
to be recognized as the exclusive representative of different groups of employees
in the district. 	Subsequently, the district declined to recognize either organi-
zation in the absence of certification by the Educational Employment Relations
Board as exclusive representative of an appropriate negotiating unit. 	A hearing
on negotiating unit issues was conducted by an EERB Hearing Officer in order
to make a record for original consideration by this Board. 	At that hearing
all parties entered into a stipulation describing the extent of their
agreement and their disagreement on the matter of an appropriate negotiating
unit. 	Specifically, 	they agreed to the following description of the negotiating
unit:
All regular, 	full-time and part-time, probationary and permanent certi-
ficated employees, 	special contract employees (Education Code Section 13329)
and those temporaries who are employed 75% or more of the days regular

school is in session, 	excluding the positions designated as Manage-
ment by the Governing Board on April 1, 	1976, 	and substitute teachers.
The parties agreed that the following positions are in dispute on the question of
their placement in or out of the negotiating unit: 	homebound teachers, adult
education teachers, subject coordinators, and supervisor of nurses.
The Lompoc Unified School District has an average daily attendance of
approximately 11,837 students in grades kindergarten through twelve and adult school.
There are 22 school sites on which are distributed 13 elementary schools, 	two
junior high schools, two high schools, three special education schools, one
adult high school, and one continuation high school. 	The district employs
approximately 670 certificated employees. 2 During the 1975-76 school year, 	the
district employed 17 homebound teachers, 56 adult education teachers, eight
subject coordinators, and one supervisor of nurses.
In respect to the adult education and homebound teachers, 	the issue for
decision is whether, within the meaning of the community of interest and
established practices criteria contained in the Government Code Section 3545(a),
they should be included in or excluded from the unit. 	On the subject coordinators
and the supervisor of nurses, 	the issue is whether they are management or supervisory
employees within the meaning of the Act. 	If they are either management or supervisory
employees, 	they are ineligible for inclusion in the unit. 	If the subject coordinators
and the supervisor of nurses are neither management nor supervisory employees, 	they
shall be included in the negotiating unit, 	since there is no other dispute concern-
ing their unit placement.
The parties have taken the following positions on the matters in dispute:
LEA would include in the unit adult education teachers, 	full-time and part-time
subject coordinators and the supervisor of nurses. 	LFT would include in the unit
adult education teachers, '.homebound teachers and part-time subject coordinators and,
exclude full-time coordinators from the unit.
1 	We assume that the parties also intend to exclude supervisory and confi-
dential employees from the unit, as required by the Act.
2 	This number is based on full-time equivalent positions as reported in the
Annual Apportionments Report, 	California State Department of Education (July 1976.)
The actual number of employees would depend upon the number of part-time certifi-
cated employees.
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The district would exclude from the unit adult education teachers, homebound
teachers, 	full-time and part-time subject coordinators and the supervisor of
nurses. 	LFT takes no position on the supervisor of nurses; LEA takes no
position on homebound teachers.
The criteria for resolving the unit issue concerning the adult education
and homebound teachers are contained in Government Code Section 3545(a), which
provides:
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.
In our decision in Los Angeles Unified School District,
3
a case involv-
ing certificated employees, we discussed the Act's Section 3545(a) 	criteria.
There we said:
In defining what constitutes a community of interest among and
between employees, 	there are several factors which have been established
by the National Labor Relations Board: 	qualifications, 	training and
skills, job functions, method of wages or pay schedule, hours of work,
fringe benefits, 	supervision, frequency of contact with other employees,
integration with,work functions of other employees, and interchange with
other employees.
We apply those criteria, where applicable here, 	first to adult education
teachers and then to homebound teachers.
I
Adult Education Teachers
Adult education teachers are hired by the district to teach evening courses
open to adults. 	An adult education course is offered when at least fifteen
persons express an interest in a subject and the district has instructor and
other necessary resources available for the course. 	Candidates for the position
3 	EERB Decision No. 5, November 24, 1976.
4 	See Kalamazoo Paper Box Corp., 	136 NLRB 134, 49 LRRM 1715 (1962)
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of adult education teacher are interviewed and selected by the adult school
principal, who also maintains records on requests for an adult education course.
The minimum qualifications for an adult education teacher in the district
are four years of experience in the field taught in the adult education program
and a high school diploma, or a combination of experience and two years of
college. 	Adult education teachers are paid on an hourly basis and are not
entitled to fringe benefits. 	They may acquire tenure as adult teachers,
but no adult education teacher in the district has ever served in that capacity
long enough to achieve tenure. 	Service as an adult education teacher may not
be included in computing the service required to achieve tenure as a teacher
in the day school.
During the first pay period of the 1975-76 school year, 	the district
employed 56 adult education teachers, 	of whom 24 were regular full-time
teachers employed in the district day schools; 	the remainder were not regular
full-time teachers employed by the district. 	Of the 56 adult education
teachers, 50 taught no more than 25 percent of a regular full-time teaching
load.
In 1975-76, 	the school year in the adult education program was 152 days,
in comparison with the school year of 180 days in the day program. 	Classes in
the adult program are taught from 7:00 to 9:30 p.m., 	four days a week, 	in
comparison to 8:30 a.m. 	to 4:00 p.m., 	five days a week, 	in the regular day
school. 	Unlike regular day teachers, adult education teachers have no extra-
duty assignments such as chaperoning dances or supervising athletic events. 	They
are not covered by the layoff provisions of the Education Code. 	Adult teachers
are not evaluated.
8
They are supervised by the adult school principal, who is
not the regular day principal. 	If enrollment in a class drops and the district
is unable to support a class financially, the course is dropped and the adult
education teacher is given a verbal release notice.
5 	Education Code Section 13309 	(Deering, 	1976 Supp.)
6 	Education Code Section 13311 (Deering, 	1976 Supp.)
7 	Education Code Section 13447 	(Deering, 	1976 Supp.)
8 	See Education Code Section 13485 et seq.
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In contrast with the adult education teachers, 	the regular day teachers
in the negotiating unit generally teach a full-time or close to a full-time
teaching load. 	Regular day teachers receive fringe benefits; 	they are eligible
for tenure and in many instances have achieved tenure. 	Additionally, 	the day
program curriculum usually differs from that offered in the evening program.
The evening program is basically an enrichment program where the curriculum is
based on student interest. 	A proposed adult education class can be scheduled
in the day program. 	Finally, evening classes are separated into quarters
rather than semesters.
On the basis of these findings, we conclude that a community of interest
between adult education teachers and the employees in the stipulated negotiating
unit does not exist. 	Since, in addition, the record contains no evidence on
established practices, we shall exclude adult education teachers from the
negotiating unit.
Homebound Teachers
Homebound teachers teach students who are unable to attend classes
because of a physical disability which confines them to their home or a
hospital. 	Homebound teachers are selected and assigned by the Assistant
Superintendent of Personnel and Special Services from a list of applications
filed with the district. 	The minimum qualifications for a homebound teaching
position are a substitute credential, which requires 90 semester units of
college work. 	The five-year teaching credential required of day program
teachers is not required of homebound teachers. 	Their work brings them into
contact with regular day teachers through an effort to coordinate the confined
student's work with the work being done in the regular class at the confined
student's grade level. 	Homebound teachers teach without a contract. 	According
to the uncontradicted testimony of the Assistant Superintendent of Personnel
and Special Services, homebound teachers in the district are not eligible for
tenure and fringe benefits; and they are not evaluated.9 They are paid on an
9 	Education Code Section 13489 gives the governing board of a school district
the discretion not to evaluate hourly and temporary hourly certificated employees.
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hourly basis with funds from the State Master Plan Program, 	a source of funding
for all district special education teachers. 	When there are no homebound students
to teach, homebound teachers are not employed by the district.
During the 1975-76 school year, 	the 17 homebound teachers employed by the
district averaged 81 hours of homebound teaching assignments for the year.
Day program teachers worked a 7-1/2 hour day for the 180 day school year or
1350 hours for the year. 	The maximum number of hours that a homebound teacher
taught during the 1975-76 school year was 273.
On these facts, we conclude that homebound teachers do not have a community
of interest with employees in the negotiating unit.
LFT has represented homebound teachers in the past in grievances relating
to wages and relies on this as a factor in favor of including homebound teachers
in the negotiating unit. 	The grievances were filed during the period of
November and December of 1975 and January 1976. 	Through the grievances, LFT
sought pay and fringe benefits for homebound teachers equal to the pay and
fringe benefits of regular day teachers.
Government Code Section 3545(a) 	requires that we consider "established
practices" in considering the appropriateness of a unit, but prior representation
by LFT in a grievance procedure, alone, has little bearing on the question of
whether homebound teachers should be included in the negotiating unit. 	Under the
Winton Act, 	any employee organization could file a grievance for any certificated
employee. 	Homebound teachers could have been represented in a grievance procedure
as part of a negotiating unit or as a separate negotiating unit or as homebound
teachers not affiliated with a negotiating unit of any kind. 	There is no
evidence that the grievance procedure was a negotiated grievance procedure, with
an exclusive representative as a party, 	as distinguished from one unilaterally
promulgated by the district and open to any representative acceptable to the
grievants. 10
10 	The Winton Act, 	Education Code Section 13080 et seq., which formerly governed
employer-employee relations, 	contained no procedures for exclusive representation.
The Winton Act was repealed July 1, 1976, by Section 1, Chapter 961 of the
Government Code.
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On the basis of the foregoing, we shall exclude homebound teachers from
the negotiating unit.
II
Subject Coordinators
There are eight subject coordinators in the district, of which three work
full time as subject coordinators and five divide their time between subject
coordinating and teaching. 	The full-time coordinators are the vocational
education coordinator, 	the Title I, Early Childhood Education coordinator and
the migrant education coordinator; 	the part-time coordinators are the reading,
music, science, math and physical education coordinators.
Subject coordinators work out of the district office under the supervision
of the Director of Curriculum. 	Subject coordinators develop and recommend
curriculum for the district in kindergarten through grade three and for each
of the subject areas for which they are responsible. 	Curriculum development
is based on a recommended state framework in the various subject areas. 	Subject
coordinators develop a plan to bring existing curriculum in line with the state
framework. 	The subject coordinators' 	recommendations are then made directly to
the Director of Curriculum, who makes recommendations to the Assistant Superin-
tendent, who then makes recommendations to the school board. 	In making
recommendations to the Assistant Superintendent, 	the Director of Curriculum
relies heavily upon the expertise of the subject coordinators.
Subject coordinators also participate in the development of secondary
curriculum. 	They sit on the curriculum council, which is composed of the
subject coordinators, two representatives from teachers' professional organiza-
tions, and secondary principals. 	This group studies, recommends, and approves
programs to be recommended to the Superintendent and to the school board.
Some coordinators also serve on screening panels which recommend teachers
for hiring, and have been used to observe teachers in their subject areas.
Coordinators also make recommendations concerning the purchase of books and
supplies and assist the Director of Curriculum in the development of those
portions of the budget in their area of responsibility. 	They are paid on the
teachers' 	salary schedule but receive an additional $738 stipend for their
services as coordinators. 	All subject coordinators, 	including full-time subject
coordinators, have been required to perform some teaching duties. 	There is one
11 	Our decision in Petaluma City Elementary and High School Districts, 	EERB
Decision No. 9, February 22, 1977, 	also excludes adult education teachers
and homebound teachers from a unit of certificated employees.
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clerk assigned to the Title I, 	Early Childhood Education coordinator and the
migrant education coordinator, and an unspecified number of aides assigned to
the migrant education coordinator.
We must decide whether in each of the. subject coordinator classifications
the individual is a supervisor within the meaning of the Act, and if not,
whether the individual is a management employee within the meaning of the Act.
Supervisors may not be included in nonsupervisory negotiating units, 	and
management employees may not be included in any negotiating unit. 12
A. 	Subject Coordinators' Supervisory Status
Government Code Section 3540.l(m) 	defines a supervisory employee as
follows:
(m) 	"Supervisory employee" means any employee, regardless of
job description, having authority in the interest of the employer
to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or the responsibility
to assign work to and direct them, or to adjust their grievances,
or effectively recommend such action, 	if, 	in connection with the
foregoing functions, 	the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent
judgment.
With the exception of the migrant education coordinator, 	there is little
evidence in the record that subject coordinators meet any of the supervisory
criteria contained in Government Code Section 3540.l(m). 	The record contains
uncontradicted testimony that no subject coordinators adjust grievances, 	grant
leaves of absence, grant time off or assign certificated teachers to teach
classes. 	The Director of Curriculum testified that only the migrant education
coordinator actually directs teachers in the sense that they are told how to
conduct classes. 	Other subject coordinators meet from time to time with
teachers and share with them information concerning the programs they administer
and coordinate their activities as they relate to the program. 	For example,
in response to a leading question, 	the Director of Curriculum testified that
the music coordinator tells music teachers how to give lessons. 	But the
witness quickly qualified his testimony as follows:
A. 	Well, 	I'd like to clarify something. 	Not systematically, is
there an observation of the music teachers going on but, they
frequently are having rehearsals and performances and the
music coordinator will observe and comment on them to the, 	to
the traveling music teachers and the test of any of the performing
arts is what kind of a product do you produce.
12 	See Government Code Section 3543.4. 	Government Code Section 3545(b)(2)
provides for separate supervisory units. 	Government Code Section 3540.l(j)
provides that management employees are not employees within the meaning of
the Act.
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Q. 	In other words, 	the — would you say they're just helpful
hints to enable the teachers to do their job better?
A. 	Yeah, how to... how to function better, more effectively.
This testimony reveals that the music coordinator does not tell teachers
how to teach but rather passes on to them suggestions about effective teaching.
There is no evidence that teachers are obligated to follow the music coordina-
tor's suggestions. 	On other subject coordinators, the evidence contains even
less evidence of authority to direct.
It is the Director of Curriculum who evaluates and signs evaluation reports
on reading teachers, 	although on occasion the reading coordinator assists in
the evaluation.
Only the migrant education coordinator possesses any of the supervisory
authority listed in Section 3540.l(m) of the Act. 	On the basis of the
undisputed evidence that he is solely responsible for the selection of aides
for the migrant education program and the teachers for the summer component of
that program, we conclude that he is a supervisor within the meaning of the
Act and for that reason is not eligible for inclusion in the negotiating unit.
However, none of the other subject coordinators shall be excluded from the
unit on that ground.
B. 	Subject Coordinators' Managerial Status
Government Code Section 3540.l(g) 	defines a management employee as
follows:
(g) 	"Management employee" means any employee in a position
having significant responsibilities for formulating district poli-
cies or administering district programs. 	Management positions shall
be designated by the public school employer subject to review by the
Educational Employment Relations Board.
This is the first case in which a dispute over managerial status is
before us. 	We have considered federal cases in our recent decisions on the
supervisory issue.13 Here, we find the parallel between the Government Co
definition of management employee and the definition of management employee
13 	In partial reliance on federal cases interpreting the NLRA, we have
decided, 	for example that the use of the disjunctive in the Government Code
definition of supervisor means that satisfaction of only one of the enumerated
criteria in the definition is sufficient to make an individual a supervisor
under the Act. 	See Sweetwater Unified School District, EERB Decision No. 4»
November 23, 1976.
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used in NLRB decisions relevant to our decision, for as we said in our recent
decision in Los Angeles Unified School District: 14
While we are not bound by NLRB decisions, we will take cogni-
zance of them, where appropriate. 	Where provisions of California
and federal labor legislation are parallel, 	the California courts
have sanctioned the use of federal statutes and decisions arising
thereunder, 	to aid in interpreting the identical or analogous
California legislation.15
Although the NLRA itself contains no definition of management employee,
the National Labor Relations Board (NLRB), with the approval of the federal
courts, has defined management employees as those "who are in a position to
formulate, determine and effectuate management policies." 	That definition
is basically similar to the definition in Government Code Section 3540.l(g).
The single real difference appears to be the use of the conjunctive in the NRLB
definition and the disjunctive in the Government Code definition in demarcating
the formulation and administration of policy. 	The NLRB has expanded on the
phrase "formulate and effectuate management policies," as follows:
14 	EERB Decision No. 5, November 24, 1976.
15 	See Fire Fighters Union, Local 1186, IAFF v. City of Vallejo, 12 Cal.
3d 608, 616, 87 LRRM 2453, 2457, where the California Supreme Court
referred 	to federal precedents in interpreting parallel language in state
labor legislation. 	In Los Angeles Metropolitan Transit Authority v. Brotherhood
of Railroad Trainmen. 54 Cal. 2d 684, 46 LRRM 3065, 3066 (1960), the California
Supreme Court said: 	"When legislation has been judicially construed and a sub-
sequent statute on the same or an analagous subject is framed in the identical
language, 	it will ordinarily be presumed that the Legislature intended that
the language as used in the later enactment would be given a like interpreta-
tion. 	This rule is applicable to state statutes which are patterned after
federal statutes." 	California appellate courts have followed National Labor
Relations Act precedents involving language with a parallel in state labor
legislation 	in the following cases, among others, concerning appropriate unit
issues: 	Alameda County Assistant Public Defenders' Assn. v. County of Alameda,
33 C.A. 3d 825, 109 Cal. Rptr. 392, 84 LRRM 2237 (1973); Social Workers' Union.
Local 535 v. Alameda County Welfare Dept., 113 Cal Rptr. 461, 86 LRRM 2954;
Santa Clara County District Attorney Investigators Assn. v. 	County of Santa
Clara, 51 C.A. 3d 255, 124 Cal. Rptr. 115, 90 LRRM 3192 (1975).
16 	Ford Motor Co., 66 NLRB 1317 1322, 17 LRRM 394 (1946). 	See also NLRB
v. Bell Aerospace Co., 416 U.S. 267, 85 LRRM 2945 (1974), a United States
Supreme Court decision in which the history of the NLRB's treatment of manage-
ment employees is traced, and the legislative history of the supervisory issue
as well as its treatment by the NLRB and the federal courts is exhaustively
outlined.
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The Board defines managerial employees as 	those who 	formulate
and effectuate management policies by expressing and making operative
the decisions of their employer, 	and those w h o have discretion in the
performance of 	their jobs 	independent of 	their employer's established
policy.17
In Flintkote C o . ,
1 ft
the NLRB decided that project engineers w h o m a d e e n g i -
neering 	studies 	and 	recommendations 	concerning whether 	to automate various
manufacturing p r o c e s s e s , 	are not management employees, 	even though those making
the final decision on automation had 	to rely heavily on the discretion and
technical expertise of the project engineers. 	The NLRB explained its decision
as follows:
In the case at hand, 	engineering judgments do form the basis of
the critical decision of whether or not to automate a particular
p r o c e s s , 	b u t , 	"in every instance, management makes that policy d e c i -
sion, 	the effective decision whether to reject or pursue the results
of those technical j u d g m e n t s , 	all of which have been routinely
rendered on the basis of, 	and as a result o f , 	professional and/or
technical expertise and in accordance w i t h the task assigned• • • .Their
decisions are predicated solely on a technical b a s e , 	and culminate
in technical reports or recommendations to managerial superiors w h o ,
in turn d e t e r m i n e , 	establish, 	and carry out management direction,
i.e., 	'policy,' 	by approving or disapproving the recommendations
presented." 	In short, we conclude that the project engineers do not
formulate or effectuate management p o l i c i e s , 	since their recommenda-
tions must be approved by management o f f i c i a l s , 	and 	they do not have
discretion in 	their job performance independent 	of 	their Employer's
established policy. 	Therefore, 	we find that the project engineers
a r e n o t m a n a g e r i a l employees. 19 Other NLRB cases reveal that a management employee is one who has m
minor executive functions outside of policy making areas. 	For example, 	in
Eastern Camera & Photo Corp., 20 the NLRB held 	that the manager and assistant
17 	Flintkote C o . , 217 NLRB N o . 8 5 , 89 LRRM 1 2 9 5 , 1297 	( 1 9 7 5 ) .
18 	Ibid.
19 	The decision in Flintkote C o . , 	followed NLRB decisions in General Dynamics
Corporation, 	Convair Aerospace Division, 	San Diego Operations. 	213 NLRB 	851
87 LRRM 1705 	( 1 9 7 4 ) ; Palace Laundry Dry Cleaning Corporation. 	75 NLRB: 3 2 0 , 	21 LRRM
1039 	( 1 9 4 7 ) ; 	Eastern Camera and Photo C o r p . . 	140 NLRB 5 6 9 , 	52 LRRM 1068 	( 1 9 6 3 ) .
In NLRB v. 	Bell Aerospace Company, 416 U . S . 	2 6 7 , 85 LRRM 2945 	( 1 9 7 4 ) , 	the U . S .
Supreme Court approved 	the NLRB's basic approach to 	the managerial 	issue and
its definition of managerial employee, 	except 	that 	it reversed the NLRB and held
that the definition of management employee is not limited 	in its application to
those w i t h a labor relations 	function.
20 	140 NLRB 5 6 9 , 	52 LRRM 1068 	( 1 9 6 3 ) .
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manager of a camera store are managers since they formulate and submit bids
and order equipment directly from a manufacturer, 	and in doing so commit the
credit of the employer. 	In Eljer Co.,21 the NLRB held that an individual
authorized to quote prices or grant discounts without supervision is not a
manager, 	since the individual's authority to quote prices and grant discounts
was limited.
No private sector cases involving the managerial status of employees of
primary and secondary level schools have been brought to our attention.
However, we note that in cases involving the managerial status of various
faculty members at the university level, 	the NLRB distinguishes between the
exercise of influence over decision making, 	and discretion exercised in the
interest of the employer.22 The NLRB has been especially reluctant to find
that a university employee is a management employee when the facts in the
record do not clearly establish that the employee is closely allied with
management. 23
In determining 	whether any of the subject coordinators are managerial
employees within the meaning of Section 3540.l(g), we first consider the full-
time subject coordinators, and then consider the part-time subject coordinators.
1. 	Full-time Subject Coordinators
Since we exclude the migrant education coordinator from the negotiating
unit because of a supervisory status, we need not determine whether he should
be excluded from the unit as a management employee.
24
We are therefore con-
cerned here with only the vocational education coordinator and the Title I,
Early Childhood Education coordinator.
21 	108 NLRB 1417, 34 LRRM 1226 (1954).
22 	New York University, 221 NLRB 1148, 91 LRRM 1165, 1169 (1975).
23 	Id. at 1171.
24 	The NLRB follows the accepted judicial practice of avoiding a decision
on both of two proposed theories when a decision on one decides the case in
favor of the party making the alternative arguments. 	See Aeronca, Inc., 	221
NLRB 326, 90 LRRM 1709, 1712 (1975), where, on finding a manaegerial status,
the NLRB said: 	"we need not, and do not, reach the issues raised as to whether
or not they are confidential or supervisory employees." 	And see New York Univer-
sity, 221 NLRB 1148, 91 LRRM 1165, 1172 (1975), where the NLRR determined that
division heads are supervisory employees, without determining their managerial
status, 	even though the employer argued that the division heads were supervisory
or managerial employees.
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The vocational education program offers specific vocational training
to students in junior and senior high school. 	It is funded by the federal
government and administered through the state. 	The program offers such
courses as industrial arts, home economics, business, electronics, graphic
arts and agriculture; 	they are designed to make students more employable upon
leaving high school. 	In addition to the general duties of a subject coordinator,
the vocational education coordinator writes the district's plan, which includes
a proposed budget and a description of the proposed allocation of resources,
for the program. 	After the plan is approved, it is submitted to the state
for funding. 	The vocational education coordinator represents the district in
communications with the state and federal government. 	However, 	final authority,
including any changes, would have to be approved and signed by the Director of
Curriculum, the Superintendent, or the school advisory committee chairman
when the application is consolidated with funding requests of other programs.
The Title I, Early Childhood Education program is governed by federal
law. 25 It is the duty of the Title I, 	Early Childhood Education coordinator
to see that the program complies with the applicable federal law. 	Toward this
end he develops comparability reports which indicate district expenditures of
federal funds and writes general evaluations of the program. 	These reports
are submitted to appropriate state or federal officers. 	The Title I, Early
Childhood Education coordinator is also the executive officer of the District
Advisory Committee, which develops district proposals and recommends appropriate
changes in the program. 	All such proposals, as well as expenditures of money
for workshops, consultants, books, materials, and equipment for the program,
require his signature before they can be recommended to the Director of
Curriculum.
Following the NLRB's reasoning in Flintkote, 26 ft
it is our view that the
vocational education coordinator and the Title I, 	Early Childhood Education
25 	20 U.S.C. 241(a) et seq.
26 	217 NLRB No. 85, 89 LRRM 1295, 1297 (1975); see note 19 supra and
accompanying text.
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coordinator act basically as experts in their particular field. 	According to
the testimony of the Director of Curriculum when asked about the nature of
recommendations made by subject coordinators:
. . . they go through to the Assistant Superintendent through
me, the Superintendent, to the board. 	They make recommendations
directly to me and frankly, 	it would be impossible for me to be
responsible for all those subject areas without their expertise
because no one could be that well informed about all the various
subject areas taught in the elementary and secondary schools.
These employees cannot be said to formulate district policies since their
recommendations usually have to be approved on at least two higher levels,
usually by the Director of Curriculum and the Superintendent.
Similarly, we find that these two subject coordinators lack 	sub-
stantial 	managerial discretion in the administration of their respective
programs. 	Although the Director of Curriculum testified at the hearing that
they exercise independent judgment in the performance of their duties, we find
no evidence that their discretion or authority went beyond the district's
established policy. 	For example, although the vocational education coordinator
actually writes proposals to be submitted to state and federal agencies for
funding, and often represents the district at funding negotiations, he does not
have direct authority to bind the district. 	All proposals or changes must be
approved by the Director of Curriculum, the district, or an appropriate
committee. 	Supplies, books, or materials requested or recommended for purchase
usually require the signature of the Director of Curriculum, 	Superintendent or
other higher level official in addition to the signature of the vocational
education coordinator or the Title I, 	Early Childhood Education coordinator.
Since the vocational education coordinator and the Title I, Early
Childhood Education coordinator are neither supervisory nor managerial
employees, 	they shall be included in the negotiating unit.
2. 	Part-time Subject Coordinators
The remaining subject coordinators are coordinators of specific academic
subjects. 	They spend half their working time as subject coordinators. 	The
other half is spent as classroom teachers. 	As classroom teachers, they report
directly to the Principal as would any other teacher. 	As subject coordinators,
however, 	they work out of the curriculum office under the supervision of the
Director of Curriculum.
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The reading coordinator helps, to develop a program for reading instruction
at all levels. 	She compiles and evaluates information to be submitted to the
state for funding of an elementary level reading program conducted by teachers
who are reading specialists. 	The reading coordinator meets with the reading
specialists on a monthly basis to share curriculum information. 	She assists
the Director of Curriculum in the evaluation of the teachers in a remedial
reading program for grades four, 	five and 	SIX. 	She also conducts workshops
to inform the staff of new or promising programs. The music coordinator writes the description of the
program in grades kindergarten through twelve. 	She recommends and helps
develop bidding requirements for musical instruments and makes recommendations
to the purchasing department on items to be purchased. 	She conducts workshops
and is responsible for setting up areas where students can work independently
to improve their musical skills.
The music coordinator also coordinates activities of traveling music
teachers and develops equitable time schedules for the school receiving their
services. 	On occasion she observes these teachers during rehearsals and
performances and makes comments and suggestions. 	These comments, however, are
not made in the form of an evaluation. 	The music coordinator also coordinates
and organizes a music fair, which gives local merchants a chance to meet with
parents and teachers of prospective students.
The science coordinator develops a description of the science program for
kindergarten through the twelfth grade. 	He also recommends materials for pur-
chase by the Teachers' Resource Center for use in the elementary schools and
trains teachers in the use of these materials. 	He also recommends the replace-
ment of worn and obsolete science equipment used at all levels.
During the 1975-76 school year, the science coordinator developed a
program for environmental camping. 	Although the science coordinator discussed
the lease arrangements with personnel from Vandenberg Air Force Base, 	the.
program has not been implemented because of insufficient funding. 	The science
coordinator also coordinates the marine biology program, which affords teachers
and high school students the opportunity to study fauna and flora from the ocean
and tide pools.
The mathematics coordinator develops course descriptions for mathematics
and a chart of objectives for teachers to use in implementing the mathematics
-15-

program. 	He is also responsible for developing special programs in mathe-
matics.
The physical educational coordinator develops a description of the physical
education program at the elementary school level. 	He is also responsible for
composing guidelines to insure that all district physical education programs
comply with the sex discrimination portions of Title IX of the Education
Amendments of 1972.
None of the duties mentioned above indicates that the academic subject
coordinators are any more involved in the formulation of district policies or
the administration of district programs than are the vocational education
coordinator or the Title I, Early Childhood Education coordinator. 	In each
case the final work product of the academic coordinators must be reviewed and
approved by the Director of Curriculum. 	In many cases the academic subject
coordinators act merely as repositories of information and expertise upon
which both management and staff can draw.
In summary, 	these academic subject coordinators possess only minor executive
functions and generally implement policies already formulated or determined by
the school board, the Superintendent, or the Director of Curriculum. 	Accordingly,
we conclude that they 	are not "management employees" within the meaning of
Government Code Section 3540.l(g). 	Since the part-time academic subject
coordinators are neither supervisory nor managerial employees, 	they shall be
included in the negotiating unit.
Ill
Supervisor of Nurses 28
Eight nurses and a supervisor of nurses are employed by the district.
The supervisor of nurses is both the nurse at Lompoc Senior High School and the
27 	20 U.S.C. 	1681.
28 	The Lompoc Unified School District job description for this position
describes it by the title 	"Coordinator of Nurses." 	Throughout the hearing,
the position title used was "Supervisor of Nurses."
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supervisor of the entire nursing program in the district. 	She evaluates,
assigns and schedules the work day for the eight nurses in the district. 	She
determines what is the best time allotment for nurses in the district. 	Evi-
dence to that effect, while sparing, was uncontradicted. 	Accordingly, we
find that the record supports the district's contention that the supervisor of
nurses is a supervisor within the meaning of the Act. 	Having found that the
supervisor of nurses is a supervisor, we need not consider whether she is; a"
manager within the meaning of the Act. 29
ORDER
The Educational Employment Relations Board directs that:
1. 	The following unit is appropriate for the purpose of meeting
and negotiating, providing an employee organization becomes the exclusive
representative:
All regular, 	full-time and part-time probationary and
permanent certificated employees, all special contract
employees within the meaning of Education Code Section
13329, 	temporary certificated employees who are employed
75% or more of the days regular school is in session,
and all subject coordinators except the migrant education
coordinator; but excluding adult education teachers, home-
bound teachers, migrant education coordinator, supervisor
of nurses, all other employees, management, supervisory and
confidential employees.
2. 	Subject coordinators, with the exception of the migrant education
coordinator, are neither "supervisors" within the meaning of Section 3540.l(m)
of the Act nor "managers" within the meaning of Section 3540.l(g) of the Act.
3. 	The migrant education coordinator is a "supervisor" within the
meaning of Section 3540.l(m) of the Act.
4. 	The supervisor of nurses is a "supervisor" within the meaning of
Section 3540.l(m) of the Act.
29 	See note 24 supra and accompanying text.
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Upon posting the Notice of Decision, the employee organizations have a
10 workday period in which to demonstrate to the Regional Director at least
30 percent support in the above unit. 	The Regional Director shall conduct
an election at the end of the posting period if; 	(.1) more than one employee
organization qualifies for the ballot, or (2) if only one employee organization
qualifies for the ballot and the employer does not grant voluntary recognition.
By; Reginald Alleyne, Chairman
Dated: 	March 17, 1977
Raymond J. Gonzales, Member, in concurrence.
I agree with the result reached by my colleague, Chairman Alleyne, 	on all
the issues presented in this case. 	These are (1) the unit placement of adult
education and homebound teachers, 	(2) the supervisory status of subject
coordinators, and (.3) the managerial status of the subject coordinators. 	I
differ with his analysis, however, concerning adult education and homebound
teachers. 	Further, I would approach the question of whether or not certain
subject coordinators are management employees under Government Code section
3540.l(g) differently.
Regarding Chairman Alleyne's conclusion that adult education teacher and
homebound teachers are excluded from the overall unit, 	I disagree with the
analysis therein to the extent that it fails to consider language set forth in
Government Code section 3545(b)(1) 	concerning the unit placement of "classroom
teachers." 	We dealt with this issue previously in Belmont Elementary School
District
2
and Petaluma City Elementary and High School Districts.
3
In both
decisions, while one member and I disagreed on the unit placement of several
Government Code Section 3545(b)(l) provides:
(b) In all cases:
(1) A negotiating unit that includes classroom teachers
shall not be appropriate unless it at least includes all
of the classroom teachers employed by the public school
employer, except management employees, supervisory
employees and confidential employees.
2EERB Decision No. 7, December 30, 1976.
3EERB Decision No. 9, February 22, 1977.
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categories of certificated staff, we agreed on the application and interpretation
to be given Section 3545(b)'(l) 	in unit determination disputes.4 We found this
section to be a Legislative mandate requiring the Board to consider its applica-
bility in all cases where unit designation of instructional staff is at issue.
Further, we found that the language "classroom teachers" includes only "the
regular full-time probationary and permanent teachers." 	As such, there is no
need to apply to them the criteria set forth, in Section 3545(a). 	Accordingly,
in this case I would first find, as in Petaluma, that neither the adult education
nor homebound teachers are "classroom teachers" within the meaning of Section
3545(b)(l) and that a resolution of the case therefore rests on an analysis of
the criteria set forth in Section 3545(a),
I disagree with that portion of the Chairman's opinion concerning represen-
tation of homebound teachers in past grievance procedures. 	I would accord such
evidence little weight for reasons other than those expressed therein.
Specifically, 	I would balance the thrust of eft's evidence relating to the
employees 1 established practices, which is relatively sparse, against the
wealth of evidence demonstrating that homebound teachers lack a community of
interest with those employees in the negotiated unit.
Lastly, 	concerning the question of whether or not two of the full-time and
all of the part-time subject coordinators are management employees within the
meaning of Government Code section 	3540.l(g),
8
I concur in the finding that
they are not. 	However, I would consider federal case law as supplemental
only. 	The National Labor Relations Act 	(NLRA)9 does not define management
employees. 	Definitions of such employees under National Labor Relations Board
case law evolve on a case—by—case basis, 	are therefore imprecise, and to
date contain language obviously different from that used in the California
Supra note 2, 	(Gonzales, concurring, and Cossack, concurring in part)
and supra note 3, 	(Cossack, concurring in part).
Supra note 2, at 10, 11, 13 and supra note 3, at 2.
Supra note 2, at 8-10, and supra note 3, at 2, 12-15,
See also Grossmont Union High School District, EERB Decision No. 11,
(Gonzales, dissenting in part).
8
California Government Code section 3540.1(g) defines a management
employee as "...any employee in a position having significant responsibilities
for formulating district policies or administering district programs."
9 29 U.S.C. 	Section 141 et seq.
10North Ark. Electric Corp., 185 NLRB 550, 75 LRRM 1068 (1970), enforcement
denied in 446 F. 2d, 602, 77 LRRM 3114 (8th Cir. 1971).
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statutory definition, 	Accordingly, 	I prefer to rely on commonly accepted
rules of statutory construction for interpreting the definition of management
employees under Section 3540.l(g),
I narrowly view the language defining a management employee as set forth
in 3540,l(g). 	First, the overall scheme of the Educational Employment Relations
Act 	(EERA or Act)12 indicates an intent to make negotiating rights broadly
available - even more so than under the NLRA. 	The fact that supervisors are
accorded negotiating rights under our Act 13 and not under the NLRA demonstrates
this. 	Second, our Act limits management employees to those with "significant"
described responsibilities and excludes such personnel from its definition of
employees entitled to negotiating rights 	(Government Code sections 3540.l(g),
3540.l(j), 3543,4). 	In view of the aforesaid intent of the Act, as well as
the general rule that exceptions in a statute are to be strictly construed,
we must interpret the language in Section 3540,l(g) narrowly.
No controlling significance can be ascribed to the Legislature's use of
the disjunctive in Section 3540,l(g). 	The reference to "significant respon-
sibilities" in that section modifies both the "formulating /of/ district
policies" and the "administering /of/ district programs." 	It is settled that
the disjunctive particle "or" should be construed as "and" in cases where such
construction is necessary to carry out the obvious intent of the Legislature.
Clearly, a person who has supervisory status has significant responsibility for
administering a school district's personnel program. 	Yet, nowhere in the
1 1 See e.g. Ford Motor Co., 66 NLRB 1317, 17 LRRM 394 (1946); Palace Laundry
Dry Cleaning Corp., 75 NLRB 320, 21 LRRM 1039 (1947); Retail Clerks v. NLRB, 366
F. 2nd 642, 153 NLRB 204, 62 LRRM 2837 (1966).
Government Code section 3540 et seq.
13
Government Code sections 3543.4 and 3545(b) (2),
14City of National City v. Fritz, 33 Cal, 2d 635, 636 (1949); Valdez v.
Federal Mut. Ins. Co., 272 Cal. App. 2d 223, 227 (1969),
1 5 Houge v. Ford, 44 Cal, 2d, 706, 712 (1955),
Government Code section 3540.l(m) succinctly lists various areas of
personnel management in which a supervisor may exercise independent judgment
in administering district personnel matters. 	In Sweetwater Union High School
District, EERB Decision No, 4, November 23, 1976, we held that the definition
of "supervisory employee" in Section 3540,l(m) is to be broadly construed.
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definition of "supervisory employee" as found in Government Code section
3540.l(m) 	is there any indication that such a person also has significant
responsibility for formulating a school district's personnel policy.
Therefore, to read Section 3540,l(g) in the disjunctive would qualify even
supervisors as management employees, which/ in turn, would be inconsistent
with the legislative grant of negotiating rights to supervisors.
Applying the foregoing to the facts of this case, I find that none of
the subject coordinators are management employees.
Raymond 	J. 	Gonzales,/Member
Raymond Jerilou H. Cossack, Member, in concurrence:
I note, 	consistent with my opinions in Belmont Elementary School District
and Petaluma City Elementary and High School Districts, 2 that neither adult
education nor homebound teachers are classroom teacher classifications within
the meaning of Government Code section 3545(b)(1) 	since none are regular full-
time probationary or permanent teacher positions. 	We are therefore free to
apply the criteria of Government Code section 3545(a).
In this context, Chairman Alleyne's failure to consider whether section
3545(b)(1) 	is applicable in no way saps the continued vitality of the Belmont
majority interpretation of "classroom teachers." 	The latter interpretation—
jointly arrived at by Dr. Gonzales and myself—constitutes a holding of this
Board. 	(Gov. Code secs. 3541(a), 3541.3(k); see Ursino v. Superior Court,
39 Cal.App. 3d 611, 620 (1974).) 	When the same question arises in cases
subsequent to Belmont (as it does here), the Chairman is as much bound by
that prior holding as are Dr. Gonzales and I. 	(Cf. Jensen v. Reno Central
Trades & Labor Council, 68 Nev. 269, 229 P.2d 908, 914 (1951).) 	"It is an
elementary tenet of administrative law that an agency must either conform
1
EERB Decision No. 7, December 30, 1976.
2
EERB Decision No. 9, February 22, 1977.
- 2 1 -

to its own precedents or explain its departure from them." 	(International
Union (UAW) v. N.L.R.B., 459 F.2d 1329, 1341, 79 LRRM 2332, 2340 (D.C. Cir.
1972); see also Davis, Administrative Law of the Seventies, sec. 17.07-4,
pp. 413-416 (1976).) 	In the instant case, Chairman Alleyne elects neither
course. 	His sub silentio rejection of this aspect of Belmont is as incom-
patible with majority rule as was his reargument concerning "classroom
teachers" in Petaluma. 	Such repeated attempts to resurrect a recently settled
issue create unwarranted uncertainty in the public as to whether Board
decisions have any precedential value.
I agree that in this case, unlike Petaluma, homebound teachers should be
excluded from the negotiating unit, 	since in this case homebound teachers have
only a de minimis employment relationship with the district. 	In Petaluma at
least one homebound teacher taught full-time. 	In the instant case, 	the 17
homebound teachers teach an average of six percent of a full-time schedule and
no homebound teacher taught more than 21 percent of a full-time schedule.
Unlike Petaluma, homebound teachers here are not required to have the same
teaching credential as regular teachers nor does the district employ its
regular teachers as homebound teachers. 	Further, again unlike Petaluma,
homebound teachers in this district are not entitled to any leave benefits,
pro rata or otherwise, 	and their homebound teaching time does not count toward
attaining tenure.
Finally, 	in reaching the conclusion that subject coordinators are not
management employees, I agree with Dr. Gonzales' rationale concerning the
construction of "management employee" set forth in Government Code section
3540.l(g) and reject the Chairman's total reliance on federal precedent.
Jerilou H. Cossack, Member
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