Oakland Unified School District (PERB 0015E)

STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
OAKLAND UNIFIED SCHOOL DISTRICT,
Employer
and
CHILDREN'S CENTER EMPLOYEES
UNION, LOCAL 2,
Employee Organization
and
OAKLAND EDUCATION ASSOCIATION, CTA/NEA,
Enployee Organization
and
UNITED TEACHERS OF OAKLAND,
AFT LOCAL 771, AFL-CIO
Employee Organization
and
OAKLAND PERSONNEL AND GUIDANCE
ASSOCIATION,
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) Case Nos. SF-R-119
SF R 400
EERB Decision No. 15
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Employee Organization )
Appearances: William E. Brown, Attorney, and Gerald A. Conradi, Attorney	)
(Brown and Conradi) for Oakland Unified School District; Sharrel J. Wyatt,
Attorney, for Oakland Education Association, CTA/NEA; Stewart Weinberg and
Wilma Rader, Attorneys (Van Bourg, Allen, Weinberg and Roger) for United
Teachers of Oakland, AFT Local 771, AFL-CIO; V. Roy Lefcourt, Attorney,
for Children's Center Employees Union, Local 2; Thomas C. Agin, Director,
California Pupil Services Labor Relations, Oakland Personnel and Guidance
Association.
Amici Curiae: Rubin Tepper, Attorney, Marin County Substitute Teacher
Association and Santa Clara County Substitute Teachers Association.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
I
On April 1, 1976, Oakland Education Association (OEA) and United Teachers
of Oakland (UTO) filed separate but similar requests for recognition as the exclusive
representative of almost all Oakland Unified School District certificated employees,
The Oakland Unified School District is composed of 99 school sites and has an
average daily attendance of 60,282 students. (Annual Report, Financial Transactions
Concerning School Districts of California, Fiscal Year 1975-76, published by the State
Controller, State of California, and the 1976 California Public School Directory,
published by the Superintendent of Public Instruction, State of California.)

including certificated employees of children's centers operated by the district.
Also on April 1, 1976, the Children's Center Employees Union (CCEU) filed a request
for recognition as the exclusive representative of the district's certificated
children's center employees.2 On April 9, 1976, the Oakland Personnel and Guidance
Association (OPGA) filed a request for recognition as the exclusive representative
of counselors employed by the district.
Subsequently, the district declined to recognize any of the employee
organizations seeking recognition, and took the position that an appropriate unit
would consist of all classroom teachers, including those employed in children's
centers, and all children's center teacher assistants; but excluding psychologists
and substitute teachers without a contract in both regular school and children's
centers. These conflicting unit contentions and other disputed unit matters raise
1The OEA describes its requested unit as follows: "All regular certificated
teachers who work full or part-time; teachers on special assignment (TSA); counselors,
psychologists, nurses, librarians, substitutes on contracts and long term substitutes
as defined as having worked 75% of the school days between September 4, 1975 and
April 1, 1976; children's center teachers and teacher assistants, contracted adult
day and evening teachers, excluding superintendent, deputy superintendent, assistant
superintendents, regional superintendents, directors, administrative assistants,
administrative aides, coordinators, instructional consultants, principals, and vice
principals."
The UTO describes its requested unit as follows: "All contracted certificated
employees who do not serve in management or confidential positions and who are
employed by the Oakland Public Schools on a half-time or more contract, and all
substitute teachers who have taught more than 75% of the teaching days in the Oakland
Public Schools during 1975-1976 school year prior to the date of the Collective
Bargaining election."
2The CCEU describes its requested unit as follows: "All certificated personnel
in positions of head teachers, senior teachers, teachers, teacher's assistants, and
certificated substitutes for the foregoing categories of employees employed in
Children's Centers located within and/or operated by said school district."
3The OPGA describes its requested unit as follows: "All employees holding a
valid Pupil Personnel Services Credential with Counseling Authorization currently
involved in on-site counseling (i.e., counselors) including all employees on special
assignment who are performing on-site counseling and who hold a valid Pupil Personnel
Services Credential with Counseling Authorization (i.e., teachers on special
assignment)."
We assume that, as required by the Act, all parties intend to exclude from
the requested unit confidential, supervisory, and management employees.
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the following issues for decision by the Board:
(1) Is a separate unit of children's center certificated employees
appropriate?
(2) Is a separate unit of counselors and TSA counselors (teachers on
special assignment) appropriate?
(3) Are psychologists management employees within the meaning of the
Educational Employment Relations Act (EERA)?
(4) If psychologists are not management employees within the meaning of
the EERA, what is the appropriate unit placement for psychologists?
(5) Should an appropriate unit of certificated employees include
substitutes who teach in the regular school for 75% or more of the school year?
(6) Should an appropriate unit of certificated employees include substitutes
in the children's centers who teach more than 50% of the school year?
(7) Are children's center assistant supervisors "supervisors" within the
meaning of the EERA?
The criteria for resolving the appropriate unit issues in this case 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, a case involving
certificated employees, we discussed the EERA's Section 3545(a) criteria. There
4EERB Decision No. 5, November 24, 1976.
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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 the above criteria, where applicable, in this case.
The Requested Counselors Unit
The district employs 92 counselors, of whom about 80-84 work full-time.
The district also employs approximately 12 TSA counselors (teachers on special
assignment). A counselor's primary duties are to assist in the placement of
children, course selection, career planning and personal adjustment.
OPGA seeks a separate unit of counselors; OEA and UTO would include counselors
in the regular certificated unit; the district and CCEU take no position on this
issue.
OPGA bases its argument for a separate counselors unit on differences between
the training and responsibilities of counselors and those of teachers. What is
critical, however, for community of interest purposes are not so much those factors
5 See Kalamazoo Paper Box Corp., 136 NLRB 134, 49 LRRM 1715 (1962).
In reliance on the California Supreme Court decision in Fire Fighters' Union
Local 1186, IAFF v. City of Vallejo, 12 Cal. 3d 608, 617, 87 LRRM 2453, 2457 (1974),
we said in our recent decision in Los Angeles Unified School District, EERB Decision
No. 5, November 24, 1976: "While we are not bound by NLRB decisions, we will take
cognizance 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 analagous California legislation."
A teacher on special assignment (TSA) is, as the name implies, a teacher on
special assignment for which he or she receives a special stipend. One of the duties
a TSA might be assigned is that of a counselor. The TSA position is a one year
assignment but may be renewed on an annual basis.
In addition, the district has TSA personnel, some of whom perform work identical
to that of counselors. Some TSAs hold Pupil Personnel Services Credentials with
Counseling Authorization and some do not. Those who do not hold Pupil Personnel Services
Credentials with Counseling Authorization would be excluded from OPGA's proposed
counselors unit. However, they perform the same work and enjoy the same wages, hours,
and other conditions of employment as TSAs with Pupil Personnel Services Credentials
with Counseling Authorization.
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but similarities or differences in the terms and conditions of teachers' and
counselors' employment, and the extent of their interaction with each other.
In our Los Angeles Unified School District decision, we found that counselors
and other certificated employees shared a community of interest and were properly
included in the same unit. Here, as in that case, we find that counselors and other
certificated employees have similar common employment interests.
Both counselors and teachers are paid on the same salary schedule, receive
the same fringe benefits and are governed by the same tenure standards.
9
Counselors
sometimes teach classes on career planning; they confer with teachers, nurses,
and psychologists on student-related matters. Counselors work 8 more days per year
than certificated teachers, 4 days before the teachers' school year begins and 4
days after the teachers' school year ends. They are compensated for these extra
8 days. While one can become a counselor for the district without being a teacher
or holding a teaching credential, the vast majority of counselors presently
employed with the district do hold teaching credentials and have teaching experience.
Counselors, like teachers, have a conference period, attend faculty meetings and
have extra duty assignments.
OPGA has represented counselors in the past, but never as an exclusive
representative and not even as part of the Certificated Employees Council (CEC), since
OPGA had no seat on the nine-member CEC which operated under the Winton Act.
Therefore, no established practice within the meaning of the Act's Section 3545(a)
criteria outweighs the conclusion we reach on the basis of community of interest
findings, to include counselors in the unit of certificated teachers and other
8
EERB Decision No. 5, November 24, 1976. See also Grossmont Union High School
District, EERB Decision No. 11, March 9, 1977.
9See Ed. Code Sections 13304, 13306 et seq.
Repealed 1975 Stats, Chap. 961, Section 1, effective July 1, 1976.

certificated employees.
Psychologists
The district and OPGA contend that psychologists are management employees
and for that reason are not eligible for inclusion in any negotiating unit. They
argue in the alternative that if psychologists are not management employees, they
do not share a community of interest with regular certificated employees and for
that reason should not be included in the unit of certificated employees. OEA
and UTO argue that psychologists are not management employees and that on the basis
of their community of interest with other certificated employees should be included
in the certificated employees1 unit.
The district employs approximately 40 to 48 psychologists. They evaluate
and diagnose learning and behavior problems of district pupils, decide on a program
to meet the students' needs and then make a placement recommendation to an admissions
committee. They consult with administrators, teachers, parents, children, and act
as liaisons to various public and private agencies in the evaluation and treatment
of these problems. Some psychologists write and submit proposals to government
agencies for funding, but in doing so they do not have authority to independently
bind the district.
Management Status—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.
In determining whether an employee is a management employee we must take
cognizance of the fact that since managerial employees are not considered employees
OPGA would place psychologists in a unit with counselors.
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for purposes of the Act12
12
and have no negotiating rights,
13
great care must be
exercised in determining who shall be considered a management employee.
On the basis of the statutory criteria, we determine that psychologists
are not management employees within the meaning of the EERA. They exercise
discretion only within their areas of expertise, which is not the same as a
manager's authority to formulate district policy. While they have considerable
discretion in implementing the district's testing program, this is no more
administering policy than teachers administer policy because they have
considerable discretion in implementing a teaching program. The psychologists'
authority is exercised on a localized basis, not on a district-wide basis. And
finally, psychologists are part of a large group having no intimate relationship
with high level district officials.14
Unit Placement—Psychologists are compensated on a salary schedule different
from that of classroom teachers. Psychologists must have a Pupil Personnel
Services Credential with a specialty in psychology. This is the same credential
required of counselors, although counselors have a specialty in counseling not
psychology. Their work day is ten days longer than a teacher's regular school year.
However, they share the same fringe benefits as other certificated employees, and,
like other certificated employees, are evaluated under the Stull Act.16 Psychologists
12 Gov. Code Sec. 3540.
Gov. Code Sec. 3543.4.
14
See Lompoc Unified School District, EERB Decision No. 13, March 17, 1977.
The salary range for psychologists is $15,810 to $20,739; the salary range for
teachers is $8,773 to $17,481. Psychologists are compensated on the administrative
salary schedule but are not required to hold an administrative credential as defined in
Title V of the Administrative Code.
16 Ed. Code Sec. 13485 et seq.
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achieve tenure under the same statutory standards as do other certificated
employees. They constantly interact with other certificated employees in
their common concern for the welfare of students.
On the basis of the foregoing, we find a community of interest between
psychologists and other certificated employees. Since there was no evidence of
an established practice in favor of a separate unit of psychologists, we shall
include psychologists in the certificated unit.18
Substitutes
UTO seeks to include in the regular certificated unit substitutes who work
at least 75% of the school year. OEA seeks to include in the regular certificated
unit regular school substitutes who work at least 75% of the school year and
children's center substitutes who work at least 50% of the children's center school
year. CCEU argues that children's center substitutes who work more than 50% of
the school year should be included in a separate children's center unit. CCEU
takes no position in respect to K through 12 substitutes. The district seeks to
exclude all substitutes from the regular certificated unit.
A. Substitutes Who Teach In The Regular School For 75% Or More Of The School Year
K through 12 substitutes have no expectation of future employment. Further,
these substitutes do not accrue tenure •, they receive no sick leave or other
fringe benefits; they work without a contract and there is no district policy that
they attend faculty meetings. K through 12 substitutes may work for more than one
school district during the school year.
See Ed. Code Sec. 13306 et seq.
18
See Grossmont Union High School District, EERB Decision No. 11, March 9, 1977.
19Ed. Code Sec. 13445 provides that the governing board of the school
district may, at any time, dismiss a substitute teacher.
20 Ed. Code Sec. 13336.5.
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As in our Belmont Elementary School District21
decision, we decide here
that long-term substitutes in this district do not share a community of interest
with regular certificated employees and should, therefore, be excluded from the
unit of regular certificated employees. We find in the record no evidence of an
established practice that might alter this result.
B. Children's Center Substitutes Who Teach 50% Or More Of The Children's Center
-School Year
For the same reasons that we exclude K through 12 substitutes from the unit
of regular certificated employees, we also exclude children's center substitutes
from the K through 12 certificated unit and the children's center unit. The
conditions of employment of children's center substitutes are essentially the same
as those of K through 12 long-term substitutes.
Children's Center Assistant Supervisors
The district, CCEU and UTO argue that the 18 children's center assistant
supervisors are supervisory employees within the meaning of the EERA and should,
therefore, be excluded from any unit containing non-supervisory employees. OEA
claims that children's center assistant supervisors are not supervisors within the
meaning of the EERA and should be included in the regular unit of certificated
employees.
EERB Decision No. 7, December 30, 1976; accord, Petaluma City Elementary
and High School Districts, EERB Decision No. 9, February 22, 1977.
22There are some distinctions between K through 12 substitutes' and
children's center substitutes' conditions of employment. They are hired at
different sites; the substitute lists from which they are hired are
separately maintained; and there are differences in their pay structure. With
the exception of the differences in the pay structure, these distinctions
have little bearing on the statutory community of interest criteria. The
differences in the pay structure alone, are not determinative in light of our
other community of interest findings.
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Government Code Section 3540.1 (m) defines a supervisory enployee as:
any enployee, 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.
We have decided in previous decisions that the satisfaction of any one of
the criteria listed in Government Code Section 3540.1(m) is sufficient to make
an individual a supervisor under the EERA.23
Children's center assistant supervisors act as assistants to the children's
center supervisors.24 The children's center assistant supervisors assist the
children's center supervisors in such areas as curriculum, staff development,
and instruction. The children's center assistant supervisors have no regular
teaching duties.
Considering the criteria contained in Government Code Section 3540.1(m), the
record discloses that the children's center assistant supervisors have no
independently exercised authority to hire. They may participate on an interviewing
committee. The committee interviews applicants and then makes three recommendations
to the director of the center who then interviews and makes the final choice.
Thus, the children's center assistant supervisors, as members of an interviewing
committee, exercise no independent judgment in making a hiring decision.
23
Sweetwater Unified School District, EERB Decision No. 4, November 23, 1976;
San Diego Unified School District, EERB Decision No. 8, February 18, 1977.
24
Although the status of the children's center supervisor was contested
during the hearing, the parties have subsequently agreed that the children's
center supervisor is a supervisor within the meaning of the Act and should be
excluded from the certificated unit. All parties at the hearing also stipulated
that the only "management issue" was in respect to psychologists.
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The children's center assistant supervisors have no authority to transfer
employees. They do not evaluate employees, except when it is not possible for
the children's center supervisor to evaluate a substitute; and even in that case,
if the evaluation of the substitute is unsatisfactory, the children's center
supervisor must make another evaluation. It is undisputed that the children's
center assistant supervisors have no authority to discharge employees, assign
or direct the work of other certificated employees or to exercise any of the
other supervisory powers noted in Government Code Section 3540.1(m).
We conclude that children's center assistant supervisors are not supervisors
within the meaning of the EERA. We shall accordingly include the children's
center assistant supervisors in the unit of children's center certificated employees.
II
I dissent from the order in this case to the extent that it permits a
separate unit of children's center certificated employees. On this issue,
rather than delay further the issuance of an order directing an election, I reserve
the right to file a dissenting opinion at a later date.
Reginald Alleyne, Chairman
Raymond J. Gonzales, Member.
I am in accord with the order issued in this case in all respects except
as it relates to the inclusion in Unit A of counselors, psychologists, and
teachers on special assignment who are performing on-site counseling in the
Oakland Unified School District (District). I agree with Chairman Alleyne
(1) that psychologists are not management employees within the definition of
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Government Code Section 3540.l(g), (2) that substitutes employed in the regular
school program or the children's center program, or both, are to be excluded
from any negotiating unit, and (3) that children's center assistant supervisors
(senior teachers) are not supervisors within the meaning of Government Code
Section 3540.l(m). Member Cossack and I agree that a separate unit of children's
center non-classified personnel is appropriate for negotiating purposes. However,
unlike Member Cossack, I would not include substitute teachers in the children's
center unit.
Unit Placement of Children's Center Employees
Opposing a separate unit of children's center staff are the District,
the Oakland Education Association, CTA/NEA (OEA), and the United Teachers of
Oakland/AFT Local 771 (UTO).2 They argue that the children's center employees
are "classroom teachers" within the meaning of Government Code Section 3545 (b)(l).
At the March 1, 1977 public meeting of the Educational Employment Relations
Board (EERB), Ms. Barbara Bissel of the United Teachers of Oakland and Ms. Jan
Mendelson of the Oakland Education Association made statements to the Board
concerning the Oakland Unified School District case. At the time of the public
meeting I objected to their presentation on the grounds that I considered their
comments ex parte communications. I instructed the Board staff to serve all
parties to the case with copies of the statements by Ms. Bissel and Ms. Mendelson.
On March 11, 1977, the EERB served on all parties a verbatim transcript of the
meeting proceedings relating to the statements.
My position and action on this matter are determined by EERB Resolution 11
regarding ex parte communications. It states that an ex parte request "is any
communication by one party which may be expected to affect the interest of another
party to a case." I objected to any statements regarding this case since not all
parties were present at the public meeting nor had they been notified that the
statements would be presented at the meeting.
The District would exclude non-contract substitute teachers from its
proposed overall unit while OEA and UTO would include them.
3 Gov. Code Sec. 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.
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Further, they argue that even if children's center personnel are not classroom
teachers, they share a community of interest with the District's kindergarten
through grade 12 (K-12) certificated employees and should accordingly be
included in their unit. The children's center Employees Union, Local 2 (CCEU),
on the other hand, disagrees and claims that a separate unit for the children's
center employees, including substitutes, is appropriate.
There are 24 children's centers operating in the Oakland Unified School
District. The centers are open weekdays year-round, approximately 255 days,
11 hours per day. The approximate enrollment of children, who range in age
from six months to 12 years, is 2,000. Of these, 1,100 are of preschool age.
Children's centers are a separate program and not part of the regular
District educational program. Article IX, Section 5, of the California State
Constitution states;
The Legislature shall provide for a system of common schools
by which a free school shall be kept up and supported in each
district at least six months in every year, after the first
year in which a school has been established.
Further, Article IX, Section 6, provides in pertinent part:
The Public School System shall include all kindergarten
schools, elementary schools, secondary schools, technical
schools, and State colleges, established in accordance with
law and, in addition, the school districts and the other
agencies authorized to maintain them. No school or college
or any other part of the Public School System shall be,
directly or indirectly, transferred from the Public School
System or placed under the jurisdiction of any authority
other than one included within the Public School System.
Article IX, Section 6, does not include children's centers as part of the
state's public school system. That children's centers are not a part of this
state's public school system is also evident from the California Supreme Court's
recent Serrano v. Priest decision, which dealt with the constitutionality
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of the state's public school financing system. In that decision, the Court
stated, "the California public school financing system for public elementary
and secondary schools...is invalid as being in violation of...the equal
protection of the laws provisions of our state Constitution." Finally, the
separate treatment of children's centers in the Education Code highlights the
distinction between the children's center program and the District's regular
school program.
Children's centers are regulated by both federal and state law. The basic
purposes of the program are stated in 42 U.S.C. Section 1397 and Education Code
Section 16701. The purposes stated in these sections indicate that children's
centers are basically a social welfare rather than an educational program. The
basic purpose of children's centers is to provide child care services for parents
who are working or being trained for work. Education Code Section 16721 under-
scores the social welfare purpose of the children's center program by providing
4 18 Cal. 3d 728, 755-756 (1976).
Moretti-Lewis-Brown-Rodda Child Development Act, Ed. Code Sec.16700 et seq.
42 U.S.C. Sec. 1397 et seq. This citation is to Title 42 of the United
States Code, The Public Health and Welfare; Chapter 7, The Social Security Act;
Title XX, Grants to States for Services.
45 C.F.R. Sec. 228 et seq, set forth the federal regulations pertinent
to "Social Services Programs for Individuals and Families: Title XX of the
Social Security Act."
Ed. Code Sec, 16700 et seq_., the Moretti-Lewis-Brown-Rodda Child
Development Act.
22 Cal, Admin, Code Secs. 30019 and 31191 et seq_. These state regulations
were promulgated by the Department of Health, citing authority in Sections 10552,
10553, 10554, and 10604 of the Welfare and Institutions Code.
42 U.S.C. Sec. 1397 states in pertinent part:
For the purpose of encouraging each State, as far practicable
under the conditions in that State, to furnish services directed
at the goal of --
(1) achieving or maintaining economic self-support to prevent,
reduce, or eliminate dependency,
(2) achieving or maintaining self-sufficiency, including
reduction or prevention of dependency,
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job opportunities and training for recipients of public assistance.
8
It is
understood by both the federal government and the State Health and Welfare
(3) preventing or remedying neglect, abuse, or exploitation of
children and adults unable to protect their own interests, or
preserving, rehabilitating, or reuniting families,
(4) preventing or reducing inappropriate institutional care by
providing for community-based care, home-based care, or other
forms of less intensive care, or
(5) securing referral or admission for institutional care when
other forms of care are not appropriate, or providing services
to individuals in institutions,
there is authorized to be appropriated for each fiscal year a sum
sufficient to carry out the purposes of this subchapter...
Ed. Code Sec. 16701 provides:.
The purpose of this division is as follows:
(a) To provide as a concomitant part of the educational system an
integrated plan for the care and development of children in the
absence of their parents which places primary emphasis upon: 1) the
'preparation of preschool-age children for effective matriculation
in the educational programs of their community when they reach school
age, and 2) the improved educational performance of children of school
age with particular emphasis upon those children who require special
assistance including bilingual capabilities to attain their full
potential.
(b) To provide parents with an opportunity to: 1) attain the capacity
to provide support for their family through employment, 2) undertake
educational activities which will assist them in providing an improved
level of parental care and supervision of their children, and 3) par-
ticipate with the child development program in assisting in provision
of the full range of child development services contemplated by this
division. It is the intent of the Legislature that any parent who
enrolls his child in any child development program authorized by this
division shall be allowed to participate in the planning, evaluation,
and modification of child development programs.
(c) To provide a comprehensive system of child development services
for prekindergarten and school-age children and their parents that
includes a full range of education, supervision, health, and social
services through full- and part-time programs.
8 ED. Code Sec. 16721 provides;
The Department of Education shall assist the State Departments of
Employment Development, Benefit Payments, and Health by offering
training and job opportunities in local child development programs
for recipients of public assistance and to those persons who qualify
under federal regulations as former, current or potential recipients
of public assistance.
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Agency that child care programs are primarily social service programs with an
education component, rather than an education program solely. The fact that
the federal government insists on funding the program through the State Health
and Welfare Agency rather than through the Department of Education attests to
this conclusion. Numerous federal audits have also supported this position.
9Q
Funds for the children's center program are partially derived from the
federal government pursuant to 42 U.S.C. Section 1397 et seq. The funds are
received by the Department of Health, Health and Welfare Agency, which is the
single state agency responsible for the federal funds and social services.
Education Code Section 16700 et seq. further regulate; the spending of federal
monies to which the state adds its own funds. The federal funds are transferred
from the Department of Health to the State Department of Education which, under
state law, is assigned responsibility for regulating child care services in the
state.12 All children's center funds received by the District must be kept in
a separate fund.
13
The District cannot tap this money for support of its regular
kindergarten through 12 program. In addition to federal and state funds, a
9
Child Care: A Final Report, at 176, Office of Educational Liaison, Health
and Welfare Agency (December, 1975) .
These sections are a small part of the federal Social Security Act which
provides funding for numerous social welfare programs.
The federal statutes and regulations do not require a state to provide
child care services with the funds received, nor do they require an educational
component to the child care program. Rather, they require that the purpose of
the children's center program be consistent with certain national goals set by
Congress which are set forth in 42 U.S.C,Sec. 1397, supra note 6.
11See 42 U.S.C. Sec. 1397b(d)(l)(C) and (G); 45 CFR Sec. 228.6; Ed. Code
Secs. 16703-16705; Comprehensive Annual Services Program Plan for the State of
California, at 18, Department of Health (June 30, 1976).
Ed. Code Sec. 16703 provides:
The Department of Education is hereby designated as the single state
agency responsible for the promotion, development and provision of care
of children in the absence of their parents during the workday or while
engaged in other activities which require assistance of a third party
or parties.
13 Ed. Code Sec. 16749. _16_

separate tax override may be imposed on the local community. Revenue derived
from this source may go only toward the purchase of real property and fixtures,
alterations or additions to existing buildings, or the purchase of furniture,
apparatus or equipment for children's center facilities.
In line with the separate and predominantly non-local funding scheme
supporting the children's center program, ultimate supervision over the program,
as with other child development services, is shared at the state level by the
Department of Health, the Department of Education, and the Superintendent of
Public Instruction, resulting in multidepartmental administration of the program.
Additionally, the Department of Employment Development and the Department of
Benefit Payments have an interest in local child development programs.
Children's centers are not located on any public school sites. Some are
located adjacent to the schools and some are located blocks away from the school.
Three centers are located outside District boundaries. These are a part of the
Peralta District Community College which has delegated to the District adminis-
trative authority to operate the centers.
14 Ed. Code Sec. 16750.
15 Id.
16 Ed. Code Secs. 16702, 16703, 16705, 16722, 16724, 16727, 16728.
The question as to whether or not children's centers are ultimately
supervised at the state level by the Department of Health or the Department of
Education has been the source of a longstanding feud between the Department of
Education and the federal Department of Health, Education and Welfare. Corres-
pondence between state Superintendent of Public Instruction, Wilson Riles, and
Caspar Weinberger, Secretary of Health, Education and Welfare, during the Nixon
Administration illustrates this point. Weinberger wrote that "any major violation
of the state plan requirements could jeopardize the total federal IV-A (now
Title XX) funding regardless of who was responsible and whether the plan was
administered by a single state agency or two state agencies under a waiver."
The waiver Weinberger refers to was the request by Riles to have the social
service funds for child care go directly to the Department of Education rather
than the Department of Health. This entire controversy is described in: Child
Care: The Final Report at 39-45, Office of Educational Liaison, Health an3
Welfare Agency (December, 1975).
17 Ed. Code Sec. 16721. -17-

Enrollment in the children's center program is predicated on certain parent
financial requirements which are not applicable to enrollment in the regular
public schools of the District. 18 To qualify for the program, parents of children
in the program must be recipients of Aid to Families with Dependent Children or
Supplemental Security Income/State Supplemental Program, qualify on the basis of
a family income below the median income for a family of four in the state, or
qualify based on a prorated payment schedule that reflects economic need.19
Waiting lists exist at all the centers.
Children's centers are staffed, in total, by 111 fully-credentialed teachers,
11 partially-credentialed teachers, 60 teacher assistants, 24 children's center
supervisors (head teachers) and 18 children's center assistant supervisors
(senior teachers). Additionally, there are seven members of the staff who are
located in a central office.20 State law does not require that a person hold
a standard teaching credential in order to be employed at a children's center
while a valid teaching credential is required to teach in the K-12 program.21
The unique position of teacher assistant exists at the children's center
because no teaching credential is required of center staff. These employees
hold permits issued by the Commission for Teacher Preparation and Licensing.
No such position exists in the K-12 program. This is the position which was
created to serve as a job opportunity for persons receiving public assistance
18 42 U.S.C. Sec. 1397a; Ed. Code Secs. 16702, 16728, 16729; Comprehensive
Annual Services Program Plan, for the State of California, Department of health
(1976). See also Ed. Code Secs. 16702 and 16729.
19 Id.
These are the director of the children's center, two assistants to the
director, a research assistant, a consultant, a nursing supervisor, and a head
teacher on special assignment.
21 Ed. Code Sec. 13055.
-18-

who need employment.22 Teacher assistants are not actually assistants to
teachers. They have greater responsibility and autonomy. In a typical center
the teacher and assistant work together as a team. They are jointly assigned
a group of children, one taking full responsibility for the group during the
early shift, and the other taking full responsibility for the second shift.
Despite the degree of autonomy teacher assistants exercise in the performance
of their duties, they are not eligible for a public school teaching position
because they do not possess the requisite teaching credential.
Hiring in the District for positions in the children's centers is separate
from hiring in the K-12 program. An interview committee consisting of at least
three staff members from the children's center central office and a head teacher
or senior teacher, or both, interview and make recommendations to the director
of the children's center program. The director then interviews the recommended
applicants and makes the final choice. The number of adults hired per child
is higher than that found in the regular public school program.23
Children's centers employees are required to supervise and instruct children
enrolled in the program. One aspect of the program is to teach preschool-age
children some degree of independence, Sometimes members of the staff act as
surrogate parents to the preschool-age children. They ensure that the children
eat and nap at the center. The children engage in activities to develop sensori-
motor, perceptual discrimination and language skills. School-age children are
similarly engaged in developmental activities when they are not attending regular
school classes. The children may choose to garden, cook, do a science project, or
interact with adults and other children in game activities. The staff, however,
22 Ed. Code Sec. 16721.
23
In the K-12 program the approximate adult-child ratio is one adult to 27
children, (California Public Schools Selected Statistics, California Department
of Education (1976)). In the children's center program, the ratio varies from
one adult to four children for the youngest enrollees to one adult to 20 children
for the oldest enrollees. 42 U.S.C. Sec. 1397a (a) (9) (A) (ii) and 22 Cal. Admin.
Code Sec. 31243. -19-

attempts to encourage and aid this age group with school work, provided the
children are receptive to this additional educational service. No specific
course guidelines or specific academic material are required by the federal
government or the state to be taught these children as in the regular public
school classes. Some centers operate on an "open classroom" concept. This
means that the children are not separated according to age.
As noted previously, children's centers are open 11 hours a day from
7:00 a.m. to 6:00 p.m. approximately 255 days per year. Center employees work
one of two seven-hour overlapping shifts each day, from approximately 7:00 a.m.
to 2;00 p,m. or from 10:00 a.,m. to 6:00 p.m. Included in this seven-hour shift
is a half-hour duty-free period, and a half-hour preparation period. These
hours are different from the hours of a teacher in the K-12 program, which are
approximately 9:00 a.m. to 3:00 p,m, Excluding weekends and seven national
holidays, children's centers are open on days when the regular public school
is not in session. For example, the children's centers are open throughout
the sunnier vacation, Christmas vacation, and Easter vacation. Fully-credentialed
teachers work 180 days just as the regular school teaching staff, but the 180
days are generally not the same 180 days that the K-12 schools are open. Center
teachers with partial credentials work approximately 220 days, and teacher assis-
tants work year-round with 25 days of paid vacation each year and eight additional
days off to compensate for state or local holidays when they are required to work.
42 U.S.C. Sec. 1397a(a)(9)(ii) specifically provides in pertinent part;
No payment may be made under this section with respect to
any expenditure in connection with the provision of any child
day care service, unless -- ... (ii) in the case of care
provided outside the child's home, the care meets the Federal
Interagency day care requirements as approved by the Department
of Health, Education and Welfare and the Office of Economic
Opportunity on September 23, 1968; except that (I) subdivision
III of such requirements with respect to educational services
shall be recommended to the States and not required....
-20-

Fully-credentialed teachers are paid according to the regular public school
teachers' salary schedule. Partially-credentialed teachers and teacher
assistants are paid according to a separate salary schedule, and receive less
than the fully-credentialed teachers.
Children's centers are administered separately from other parts of the
District's educational program. The public school teachers report to their
on-site principal, who in turn reports to either an area A or area B super-
intendent. Children's center employees report to an on-site head teacher, who
in turn reports to the children's center director. The director reports to the
associate superintendent for support services. The associate superintendent
is on the same administrative level as the area superintendents.
Regular District teachers and fully-credentialed children's center teachers
achieve tenure on the same basis. Partially-credentialed teachers working in
the public schools must work 75 percent of the 180-day school year to earn a
year's credit toward tenure while partially-credentialed center teachers must
work 75 percent of a 220-day school year to earn a year's credit toward tenure.
No evidence was presented regarding whether or not teacher assistants are eligible
for a similar job security provision.
Separate layoff procedures exist for the children's center employees as
compared to the regular school teachers. In 1974-75, public school teachers
were laid off by the District, The District's regular public school teachers
attempted unsuccessfully to have children's center employees included in the
layoffs on the basis of seniority. The District's director of certificated
personnel testified that he had been advised by a Deputy County Counsel of
Alameda County that center teachers were in a separate program and their
seniority could not be considered in laying off public school teachers. He
25 Ed. Code Sees. 16766 and 13447.
-21-

cited the separate funding of the program and the fact that average daily attendance
is calculated separately for the children's centers. In each year the issue was
taken to a hearing examiner who ruled that children's center employees could not
be laid off based upon a reduction in the District's average daily attendance.
There is some contact between the children's center staff and regular
District teachers concerning school-age children. The evidence was conflicting
as to the degree of interaction, but in only one children's center, the Martin
Luther King children's center, did there appear to be considerable contact
between center employees and K-12 employees. Children's center employees are
not given release time to attend faculty meetings at the companion school sites.
They hold their own faculty meetings. Two children's center teachers testified as
to "conflicts" with the regular school teachers who do not consider children's
center teachers to be professional. The "elitism" of the regular teachers was
expressed by one of the witnesses:
Those of my friends who are public school teachers always
give me the run-around and 'when are you going to come
back to the regular classroom - to a classroom,' and I say,
'Well, I'm in a classroom,' and they say, 'Well, you know
what I mean.'
Fully-credentialed teachers in the children's center program, unlike other
center staff, may teach in the K-12 program. Fully-credentialed teachers have
transferred from a children's center to a regular District school and from a
regular District school to a children's center. However, the director of the
District's certificated personnel testified that it was not "common practice"
for a person to voluntarily transfer from the public schools to the children's
centers or vice versa. He could recall only one person who had applied for
such a transfer in the 1975-76 school year. Additionally, fully-credentialed
This center also was the only program with a particularly strong
academic focus as compared to other centers.
-22-

teachers who are "consolidated," meaning their position has been cut due to
either declining enrollment or a reduction of certain services by the District,
cannot be assigned to a children's center program without proper notification
since such a change could constitute an adjustment in their work year.
Children's center employees are entitled to the same fringe benefits as
the District's K-12 staff, including certificated, classified, management or
non-management. Further, both fully-credentialed and partially-credentialed
teachers in children's centers and regular certificated teachers in the regular
District public schools are evaluated under the same procedures.27
Evidence on established practices showed that organizational representation
via the Certificated Employee Council under the former Winton Act28 existed in
the District beginning in the 1970-71 school year. The CCEU has never held a
seat on the nine-member council. Proposals on behalf of the children's center
employees were the subject of the meet and confer process through OEA and UTO
who were members of the Council. The CCEU has handled grievances concerning
compensation and time-off matters on behalf of center employees, both before
and after July 1, 1976. The record is silent as to the extent of children's
center staff membership in any of the employee organizations.
No evidence was submitted relating to the effect of one or two units on
the efficient operation of the District. However, the facts show that the
District presently separately administers the children's center program.
On the basis of the foregoing facts, a separate unit of children's center
personnel is clearly appropriate.
Children's center teachers are not classroom teachers under the majority
27 Ed. Code Sec. 13484 et seq.
28 Former Ed. Code Sec. 13080 et seq., repealed July 1, 1976. See
particularly former Ed. Code Sec. 13085.
-23-

interpretation of Section 3545(b)(1)
29
in Belmont Elementary School District.
30
As the Belmont majority viewed this code section, "the legislature limited
the language 'classroom teachers' to only the regular full-time probationary
and permanent teachers employed by a district" who comprise "the core of the
certificated staff of the district,"31 i.e., those who teach full-time in the
regular K-12 program. The Belmont majority expressly pointed out that employees
thus included within the statutory meaning of "classroom teachers" would, as
among themselves, invariably share a community of interest and their joinder
in a single unit would invariably not burden the efficient operation of the
employer.32 Teachers not employed on a regular full-time probationary or
permanent basis in the core of a district's certificated staff cannot in all
cases be said to share a community of interest with the core group and to be
employees whose joinder with that group would never burden the employer's
efficient operation.33 Therefore, we are free to address the criteria set forth
in Government Code Section 3545(a) in determining whether or not a separate unit
of children's center employees is appropriate.34
Supra note 3.
30^EEBR Decision No. 7, December 30, 1976.
3ID . at 10.
Id. at 11. See Gov. Code Sec. 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.
References to "classroom teacher(s)" in the Education Code neither
reinforce nor detract from the construction accorded that term in Belmont.
(See, e.g., Ed. Code Secs. 321, 6481, 13315, 13315.1, 17200, 1750375
34 Supra note 32.
-24-

Our decision to allow a separate unit of children's center employees
is determined primarily by the community of interest criterion. We find
compelling those facts which clearly indicate the separate and distinct
nature of the children's center program.
Specifically, we find persuasive that the basic purpose of the children's
center program is to provide child care for parents who are working or being
trained for work rather than to provide education for the children. This is
indicated by the federal and state statutes and regulations which emphasize the
separate and social service nature of the program and give no direction as to
the specifics of any educational component of the program, by the federal
government's insistence on providing funding through the State Health and
Welfare Agency, by the long hours and year-round operation of the centers which
accommodate parents' work schedules, by the lack of a requirement that children's
center employees be fully credentialed as regular public school teachers must
be, by the low-income requirements for parent eligibility for the program, by
the low-income requirements for employment eligibility for some center employees,
and by the fact that the District is not required to operate children's centers
as part of its educational program.
And, while the developmental education of low-income children is one aspect
of the children's center program, the type of education varies substantially
from that offered in the regular District schools. The education provided is
geared to the six month to 12 year age level of the children enrolled in
children's centers. Preschool-age children are engaged in a variety of activities
aimed toward their total development. School-age children are kept at the
children's center both before and after their regular school day. There are no
tests, grades or structured curriculum, as there are in the formal school setting.
Further, the program has a separate budget, a separate administration, a
separate average daily attendance count, and the center sites are separate from
-25-

the regular school sites. The staff is separate from the regular District
staff as indicated by a separate hiring process, few transfers between programs,
little contact between the staff of the two programs, a different adult-child
ratio, separate faculty meetings, different hours of work, the year-round program
which does not coincide in length or holidays with the regular school calendar,
the unique qualifications required of center teacher assistants, a different
salary schedule for teacher assistants and partially-credentialed teachers, and
a separate seniority and lay-off system.
The community of interest criterion indicates that a separate unit of
children's center employees is appropriate. This determination is not altered
by the sparse evidence on established practices, nor does it appear that the
existence of two units will place a burden on the efficient operation of the
school district. Regarding the latter criterion, it is notable that the District
apparently has already found that separate administration of the children's
center program is more efficient than an administration combined with the regular
District program.. Undoubtedly, this is the result of the required separate
budget and the statutes, rules and regulations of both the federal and state
governments which apply to children's centers and not to the public schools.
If the program is so unique that separate administration is considered more
efficient, separate negotiations would likewise appear more efficient.
The result in this case is consistent with our decisions in Petaluma City
Elementary and High School Districts, Lompoc Unified High School District,
and New Haven Unified School District,37 where we found that adult education
teachers were not appropriately placed in a unit of regular classroom teachers
because of their unique status.
35 EERB Decision No. 9, February 22, 1977.
36 EERB Decision No. 13, March 17, 1977.
37 EERB Decision No. 14, March 22, 1977.
-26-

I dissent from the majority opinion in this case concerning the
disposition of counselors, teachers on special assignment who are performing
on-site counseling (TSA's) and psychologists. I shall not enter into a lengthy
discussion regarding these issues here. I refer the parties to my extensive
dissent in Grossmont Union High School District.38 In that dissent I relied
on the community of interest and established practices criteria. In this case
I base my decision primarily on the community of interest standard.
I state here, as I did in Grossmont, that:
I also find it curious that the majority opinion completely
ignores the fact that, unlike in_Los Angeles Unified, there
is a complete separation of job functions between teachers
and PPS employees /.in this case counselors, TSA's and
psychologists/; this omission is important especially
because distinctions in job function have bee n considered
important in previous decisions of this Board. For example,
in Pittsburg Unified School District, we allowed a separate
unit for instructional aides 'since their primary functions
involve dealing directly with students either at the
instructional or disciplinary level, whereas other classified
employees are primarily charged with providing a physical
environment for students.
I recognize the slight factual differences between this case and Grossmont;
nonetheless, I am compelled by the argument that significantly dissimilar job
functions clearly demonstrate an absence of a community of interest between the
counselors/psychologists and the other certificated employees in the overall
unit described by the majority.
In reference to the Chairman's statement that, "I reserve the right to file
a dissenting opinion at a later date," I respectfully object. Section 33440 of
the EERB rules on the issuance of decisions makes no provision for the issuance
of any document after the final decision is issued.39 To allow for a belated
dissent would leave all parties in limbo as to what the final thinking of the
Board might be. A situation could occur where two members issued tardy dissents
EERB Decision No. 11, March 9, 1977 (Gonzales dissenting in part).
398 Cal. Admin, Code Sec. 33440.
-27-

and in their dissents agree upon the same rationale which would then become
the majority rationale of the Board and would thus alter and make confusing
the entire decision. Additionally, any member issuing a tardy dissent could
conceivably receive input on the case from the parties on the losing side of
the issue, thus violating the rights of the parties who argued the majority
side of the decision. Finally, the issuance of a tardy dissent would result
in two EERB decisions on the same case having to be dealt with by various
publications that print the official EERB decisions.
/^aymond/J. Gonzal^e,
Jerilou H. Cossack, Member.
I agree with Chairman Alleyne that counselors, psychologists and teachers
on special assignment should be included in the K through 12 certificated unit.
I agree with Member Gonzales that children's center teachers and assistant
teachers constitute a separate appropriate unit for the reasons he has articu-
lated. I disagree with the majority on the following issues: the exclusion
from the K through 12 certificated unit of regular K through 12 substitute
teachers who teach 75 percent or more of the school year; the exclusion from
the children's center certificated unit of children's center substitute teachers
who teach 50 percent or more of the children's center school year; and the
conclusion that children's center assistant supervisors are not supervisors
within the meaning of the Act.
While I agree that psychologists are not management employees within
the meaning of Government Code Section 3540. l(g), Chairman Alleyne's opinion
requires further amplification.
-28-

In interpreting Government Code Section 3540.l(g), the Board concluded
in Lompoc Unified School District that a person must possess both of the func-
tions delineated in that section in order to be excluded as a management
employee from negotiating rights otherwise accorded employees by the Act. In
the instant case, psychologists possess neither of these functions.
The district contends that psychologists formulate district policy by
participating in processes which result in the making of policy. In support
of its management designation, the district relies on the psychologists' draft-
ing of grant proposals and their participation in the placement of a child in
an educational environment in which the child will best realize learning
potential. The record, however, discloses that psychologists participate
largely at the individual school site level drafting proposals as part of a
team also composed of teachers and other persons included in the certificated
unit. These proposals are drafted in conformance with guidelines established
by the funding agency. The Consultant in Pupil Services for Area B, a district
witness, testified as follows:
Q. As a general rule, is the function of the psychologist
any different from the role of a classroom teacher in the
drafting of a proposal or the formulation of a proposal?
A. I can see several teachers writing the classroom com-
ponent, the curriculum component. The psychologist would
be more apt to write the guidance, motivation, behavioral
objectives component.
Q. Do you know of any role which is played by psychologists
in formulating District policies?...
A. In Oakland, I'd say only as part of a team....
1EERB Decision No. 13, March 17, 1977.
-29-

The Board concluded in Lompoc that the language defining a management
employee should be narrowly construed. It is clear that the psychologists'
participation in policy formulation is, at most, advisory and almost solely as
part of a team which includes teachers and others in the certificated unit.
The district also contends that psychologists have significant respon-
sibilities for administering district policies. The district relies on the
psychologists' role in the testing and placement of students in special educa-
tion programs, their maintenance of confidential student files, and their role
in liaison with various local governmental agencies. The record, however,
discloses that their testing and placement of children is in conformance with
established district policies and most often in conjunction with other unit
certificated personnel as part of a committee or team. Their participation is
no greater than that of unit members of the comnittee. No one urges that
teachers or other clearly unit personnel who participate in these committees
are therefore management employees. Further, the record discloses that the
confidentiality of student files is mandated by district policy and that psy-
chologists possess little, if any, discretion in this area. Teachers and
nurses, classifications clearly within the certificated unit, also occasionally
review the student files either in whole or in part. Finally, the evidence of
the extent of psychologists' interaction with local governmental agencies was
very sparse. Their function appears to be that of relaying information.
In determining that psychologists should be included in the overall
certificated unit, the Chairman's opinion ignores two of the three criteria
enumerated in Government Code Section 3545(a) as providing the basis for this
Board's decisions on unit placement: established practices of the employees and
the effect of the size of the unit on the efficient operation of the school
district.
-30-

With respect to the established practices of employees, the record
discloses that tinder the "meet and confer" process of the Winton Act,2
psychologists were among the certificated employees represented by the Certi-
ficated Employees Council (CEC) in their employment relationship with the
school district. The CEC also represented all others included in the certifi-
cated unit. Such history, although of little weight,3 serves only to reinforce
other evidence supporting their integral relationship with the larger unit.
In April 1976, coincidental with the effective date of the representation por-
tions of the Act, the district designated psychologists as management employees.
At some uncertain time, apparently subsequent to the effective date of this
Act, at a meeting of the Oakland School Psychologists Association attended by
approximately 19 of the 45 district psychologists, a majority of the 19 attend-
ing psychologists voted to align themselves with the Administrators Association.
The recent vote of a minority of the psychologists to align themselves with the
Administrators Association in no way nullifies the functional cohesiveness of
psychologists with those included in the overall certificated unit.
With respect to the effect of the size of the unit on the efficient
operation of the school district, the district argues merely that psychologists
possess interests adverse to those of persons in the overall unit because the
psychologists' salary range is higher. I do not find the salary differential,
standing alone, sufficient to outweigh the common goals which the psychologists
share with the overall certificated unit. Nor do I find that the salary differ-
ential is relevant to the criterion of size of the unit.
2Education Code Sections 13080-13090, repealed July 1, 1976 by Section 1,
Chapter 961 of the Statutes of 1975.
3
Grossmont Union High School District, EERB Decision No. 11, March 9,
1977. -31-

For the reasons set forth in my dissent with respect to the exclusion
of substitute teachers from the certificated unit in Belmont Elementary School
District
4
and Petaluma City Elementary and High School Districts,
5
I would
include K through 12 substitutes who teach 75 percent or more of the school
year in the K through 12 certificated unit. For the same reasons, I would
include children's center substitutes who teach 50 percent or more of the
children's center year in the children's center certificated unit. No useful
purpose would be served by further belaboring the issue here.
With respect to the supervisory status of children's center assistant
supervisors, the majority has failed to analyze the statutory requirements and
to consider fully the facts elicited at the hearing. While National Labor
Relations Board (NLRB) decisions are not controlling, we will take cognizance
of them where appropriate. The NLRB has long held that persons who perform
supervisory duties for a fixed and substantial period of time during the course
of their weekly employment are excluded from units of non-supervisory employees.
The NLRB has further held that persons who exercise supervisory authority full-
time for a portion of the year and perform unit work for the remainder of the
4EERB Decision No. 7, December 30, 1976.
5EERB Decision No. 9, February 22, 1977.
6Los Angeles Unified School District, EERB Decision No. 5, November 24,
1976.
7
The Texas Company, 85 NLRB 1211, 24 LRRM 1540 (1949); United States
Gypsum Company, 127 NLRB 134, 45 LRRM 1529 (1960).
-32-

year are excluded from the unit for the portion of time they perform supervisory
work.
8
In adopting this approach both the NLRB and the approving courts have
recognized that under the scheme of the Labor Management Relations Act (LMRA)
...the [NLRB] has a duty to employees to be alert not
to construe supervisory status too broadly because the
employee who is deemed a supervisor is denied rights
which the [LMRA] is intended to protect.9/
In the instant case, children's center assistant supervisors assume all
of the duties and responsibilities of children's center supervisors full-time
for three months out of each year and for four hours each day during the rest
of the year. In this respect, the testimony of the Longfellow Children's
Center Supervisor is illuminating:
THE HEARING OFFICER: .. .for at least three periods of a
month at a time you're away from the center totally, and
during that time the [assistant supervisor] would be
serving in your capacity making the decisions you make?
THE WITNESS: Yes.
This same witness also testified:
THE HEARING OFFICER: .. .Now, you had testified,.. .that
you worked a seven hour day. At what time would you
report for work in the morning?
THE WITNESS: My schedule varies from day to day. Normally,
Monday, and Tuesday, and Wednesday, I come in at quarter
of seven, and leave when I can, anytime after quarter of
two, which is usually later.
8The Great Western Sugar Company, 137 NLRB 551, 50 LRRM 1186 (1962);
Westinghouse Electric Corporation, 163 NLRB 723, 64 LRRM 1440 (1967), enf'd
424 F.2d 1151, 74 LRRM 2070 (C.A. 7 ) , cert. denied 400 U.S. 831, 75 LRRM
2379 (1970).
9
Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 74 LRRM 2070 (C.A.
7 1970).
-33-

THE HEARING OFFICER: And on those days, we'll take those
as an example —
THE WITNESS: Yes.
THE HEARING OFFICER: — what time would the childrens center
close?
THE WITNESS: At quarter of six.
THE HEARING OFFICER: Okay, and between sometime around
2:00 o'clock, or thereafter, until 6:00 o'clock, who
would have responsibility for the operation of the
childrens center?
THE WITNESS: When I leave the childrens center, the
[assistant supervisor] has responsibility for what
happens.
All of the parties have agreed that children's center supervisors are
supervisors within the meaning of Government Code Section 3540. l(m) and thus
excluded from any negotiating unit at issue here. Based on the above testi-
mony, assistant supervisors are also supervisors within the meaning of Govern-
ment Code Section 3540.l(m) for three months a year and approximately four
hours a day during the remainder. This Board has recognized that the Act
requires a broader construction of the definition of supervisors than that of
the LMRA since, unlike the LMRA, the Act extends its protection to supervisors
and allows them to be represented in negotiating units separate from employees
they supervise. Even under the more restricted LMRA standard, however,
children's center assistant supervisors are supervisors.
10The parties are in disagreement as to whether children's center
supervisors are management employees within the meaning of Government Code
Section 3540.l(g). While I would prefer to do so, it is unnecessary to
resolve the question of their management status.
11Sweetwater Union High School District, EERB Decision No. 4, November 23,
1976.
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Independent of their assumption of the responsibilities of children's
center supervisors, assistant supervisors possess some of the indicia of
supervisory status enumerated in Government Code Section 3540.l(m). The
testimony of the Director of Children's Centers and Preschool Programs, while
admittedly conclusionary, is illuminating on these points:
Q. Does the Assistant Supervisor have any authority
in regard to directing the work of persons who work
in Children's Centers?
A. Yes.
Q. Do [assistant supervisors] assign persons to do
tasks within the scope of their employment?
A. This is a staff matter. I mean, I believe that
the Center Supervisor, the Assistant Supervisor and
staff have their goals and objectives for the children
in that Center and together they decide how the day
in that Center is organized, the lesson plans, the
learning experiences of the children. I just — I
think it's a cooperative effort in the Centers and
then the Supervisor and the Assistant Supervisor help
facilitate reaching these goals and objectives.
Q. In the absence of the supervisor, would the Assistant
Supervisor in the Children's Center have any part to
play in adjusting the grievances of employees that
work in the Children's Center, and by that, I don't mean
formal written grievances. I mean complaints or friction
or — I don't mean the filing of...formal written grievances,
but I mean, would they have some part to play in adjusting
the complaints or gripes or grievances?
A. Yes.
Thus, the majority misstates the evidence adduced at the hearing when it says,
"It is undisputed that the children's center assistant supervisors have no
authority to...assign or direct the work of other certificated employees or
to exercise any of the other supervisory powers noted in Government Code
Section 3540.l(m)." The fact of the matter is that for a substantial portion
of each workday, at times when no one of higher authority is present, the
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assistant supervisor is the only person with authority at the children's center.
He or she performs no assigned teaching function at any time and is, 	like the
supervisor, paid an additional stipend. 	Accordingly, I conclude that children's
center assistant supervisors are supervisors within the meaning of the Act.
Finally, 	Chairman Alleyne's proposed belated dissenting opinion is
unauthorized. 	I object to it.
Oerifl.ou H. Cossack, Board Member
ORDER
The Educational Employment Relations Board directs that:
1. 	The following units are appropriate for the purpose of meeting and
negotiating providing an employee organization becomes the exclusive representative:
Unit A 	All certificated employees, 	including counselors, psychologists,
and teachers on special assignment; 	excluding children's center teachers,
children's center teacher assistants, children's center assistant
supervisors, K-12 and children's center substitute teachers, management,
supervisory and confidential employees.
Unit B 	Children's center teachers, 	children's center teacher assistants,
children's center assistant supervisors; 	excluding K-12 and children's
center substitute teachers, management, supervisory, confidential and
all other employees.
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2. 	Children's center assistant supervisors are not supervisors within the
meaning of Government Code Section 3540.l(a).
3. 	Psychologists are not management employees within the meaning of
Government Code Section 3540.l(g).
4. 	Within 10 workdays after the employer posts the Notice of Decision,
the employee organizations shall demonstrate to the Regional Director at least
30 percent support in the above units. 	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.
Educational Employment Relations Board
by
Stephen Barber
Executive Assistant to the Board
Dated
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STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
OAKLAND UNIFIED SCHOOL DISTRICT,
Employer,
and
CHILDREN'S CENTER EMPLOYEES
UNION, LOCAL 2,
Employee Organization
and
OAKLAND EDUCATION ASSOCIATION, CTA/NEA,
Employee Organization
and
UNITED TEACHERS OF OAKLAND,
AFT LOCAL 771, AFL-CIO
Employee Organization
and
OAKLAND PERSONNEL AND GUIDANCE
ASSOCIATION,
Employee Organization
)
)
)
)
)
)
)
)
)
)
) Case Nos. SF-R-119
SF-R-200
SF-R-400
EERB Decision No. 15
)
)
)
)
)
)
)
)
)
)
)
)
)
DISSENTING OPINION
Reginald Alleyne, Chairman, dissenting in part:
In this case, the Board decides that children's center teaching personnel should
not be included in a unit with teaching personnel and other certificated employees in
the Oakland public schools. In the recent Grossmont1 case, the Board decided that pupil
services employees, consisting of counselors, psychologists, school nurses, and social
workers, must be included in a unit with teachers and other certificated employees.2
Decision No. 11, March 9, 1977.
2See also Los Angeles Unified School District, EERB Decision No. 5, November 24, 1976,
where counselors were included in a unit with other certificated employees.
,
____ )

I think that the Board's decisions in Grossmont and this case cannot be reconciled.
Indeed, this case is a stronger case than Grossmont in favor of a single integrated
unit.
Here, unlike in Grossmont, the disputed classifications are all teacher
classifications. I do not believe that teachers and non-teachers (Grossmont) can
have a community of interest greater than the community of interest among regularly
employed full-time teachers (Oakland). I think that, generally, the employment
conditions used in applying the statutory community of interest criterion should
be those having an effect on bargaining relationships. That is what the community
of interest standard was intended to enhance. The Board so determined in the
Sweetwater 3case, and so applied that standard in the Grossmont case, but departs from
both the rule and its application in this case.
In Grossmont, the Board focused on those criteria having a bearing on the
quality of the bargaining relationship, stating in part:
The four disputed personnel services classi+fications have many
things in common with teachers and other certificated persons
included in the overall unit. All are required to attend
faculty and staff meetings. All receive the same fringe benefits,
including sick leave, vacation and sabbatical leave, holidays,
retirement benefits, life, medical and dental insurance, vision
care and accidental death and disability insurance. All are
entitled to tenure.
All of these similarities in employment conditions of pupil services employees and
other certificated personnel in the Grossmont Union High School District exist in
respect to children's center certificated employees and other certificated unit
personnel in the Oakland Unified School District.
In finding a community of interest between pupil services employees and other
certificated employees in Grossmont, the Board also relied on the fact that the same
certificated salary schedule existed for the two groups; that "all certificated
employees are evaluated pursuant to the Stull Act"; and that "while the credential
3See Sweetwater Union High School District, EERB Decision No. 4,
November 23, 1976, pp. 11-12.
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requirements for teachers are different than those of other non-teacher certificated
employees, . . . they possess more similar than dissimilar components." The
conclusion reached was that "any credential differences between teachers and other
certificated personnel are no greater than those between teachers themselves or
between the various pupil services classifications themselves." In this case, as in
Grossmont, the disputed classifications are paid on the same salary schedule (with the
exception of children's center teacher assistants who are paid on a different but
similar salary schedule). Here, as in Grossmont, all disputed employees are evaluated
pursuant to the Stull Act. Of the 122 teachers in children's centers, 111, or 91%,
have the same teaching credential as K-12 teachers in district schools. The credential
requirements for children's center teacher assistants are different than those of
regular teachers, but children's center teacher assistants possess a credential which
entitles them to give instruction and supervision to students in children's centers.4
In Grossmont, the Board relied heavily on interaction between the pupil services
employees and other certificated personnel in ordering a single integrated unit. In
this case, interaction is not as important a factor since substantially different
employee classifications are not involved, as they were in Grossmont. In any case,
the record discloses that children's center teachers utilize the services of psychologists
and nurses employed in the regular district schools and consult with regular teachers
on matters relating to the educational development of the children's center students.
Many children's center students attend class in regular elementary school.
In this case, there is evidence of interchange between children's center employees
and their counterparts in other district schools. Fully credentialled teachers have
transferred from children's centers to regular schools and from regular schools to
children's centers. Some regular certificated teachers teach in children's centers
4Pursuant to Ed. Code Section 16766, a teacher assistant is considered
to be employed in a position requiring certification qualifications.
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during the summer.
The decision of the Board, in favor of a separate unit of children's center
certificated employees, is based chiefly on its contention that children's centers
are primarily child care centers and for that reason children's center teachers
do not share a community of interest with certificated personnel in the regular
schools, where the primary mission is not child care but the education of children.
I think this argument is refuted by the record. There are few, if any, distinctions
between the educational component of a kindergarten class in the regular public
schools and the educational component of the children's centers; and there is even
less of a distinction between the educational component in the children's centers
and the pre-school classrooms in the other district schools. For example, when
asked to describe the distinction between K-12 teachers and the children's center
teachers, the director of the children's center replied that:
The only difference I see is that the children's center
teacher, by and large, sees each parent at least once a
day . . . has the opportunity to see the total child
develop . . . has more help to provide this kind of service
to children because of our staffing structure.
Further, in this same line of questioning:
Q Are children's center teachers expected basically
to perform a different function than the function
performed by teachers in grades K-12?
A I don't believe so.
It is undisputed that like kindergarten and pre-school children in other district
schools, the children enrolled in children's centers engage in activities to develop
sensorimotor, perceptual discrimination and language skills.
The majority opinion also relies on the fact of federal government funding for
the children's center programs. I think that, in and of itself, federal aid has no
bearing on community of interest. The majority opinion does not state what
conclusions ought to follow from the fact that there is federal funding for
children's center programs.
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I also fail to see how the fact that the "children's center program is
predicated on certain parent financial requirements which are not applicable to
enrollment in the regular public schools of the district", relates to employment
conditions and, consequently, the EERA's community of interest standard.
Finally, 	the majority opinion states that children's centers are not located
on any public school sites. 	I find this fact irrelevant since it is unusual to
find any two or more public schools located on the same site. 	And, as the majority
concedes, some children's centers are located adjacent to regular district schools.
In sum, 	I believe that not all differences in employment conditions have a
bearing on the EERA's community of interest standard and that among those that do,
some have a more direct bearing than others. 	This is because of the differing
effect that different employment-conditions factors are likely to have on the
success of a bargaining relationship. 	Those employment conditions having a close
effect on the quality of collective bargaining—like the criteria used in Grossmont
and Los Angeles Unified—should be properly weighted as factors for consideration
in applying the community of interest criteria. 	Here, I think the Board uses
inappropriate criteria to reach an incorrect result.
Reginald Alleyne, Chairman
Dated: 	April 19, 1977
EERB Decision No. 5, November 24, 1976. 	In Los Angeles Unified, the
community of interest factors considered relevant were: 	"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."
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