Arcadia Unified School District (PERB 0093E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
ARCADIA UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
ARCADIA 	TEACHERS
	ASSOCIATION, 	CTA/NEA,
Employee
	Organization,
and
ARCADIA 	PUPIL 	SUPPORT 	SERVICES
ASSOCIATION,
Employee
	Organization.
Case
	Nos. 	LA-R-278
LA-UC-17
PERB
	Decision
	No.
	93
May
	17,
	1979
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_______________________ )
Appearances: 	Daniel
	C.
	Cassidy, 	Attorney 	(Paterson	
&	
Taggart)for 	Arcadia Unified
	School
	District;
	Charles
	R.
	Gustafson,
Attorney 	for
	Arcadia 	Teachers
	Association,
	CTA/NEA;
Thomas
	C.
	Agin
	(California
	Pupil 	Services
	Employment
	Relations
Corp.)
	for
	Arcadia
	Pupil
	Support
	Services 	Association.
Before 	Gluck,
	Chairperson; 	Gonzales,
	Member.
DECISION
This 	case
	comes
	before 	the 	Public
	Employment
	Relations
Board
	(hereafter
	PERB
	or
	Board) 	on
	exceptions
	filed
	by
	the
Arcadia 	Unified	
School	
District
	(hereafter 	District) 	to	
the
attached 	hearing
	officer
	proposed
	decision.
	For
	the 	reasons
set 	forth
	below, 	the
	Board
	affirms	
the	
hearing
	officer
1 s
finding 	that
	a
	unit 	consisting 	of 	counselors, 	psychologists,
nurses,	
speech	
therapists,	
and	
reading
	specialists 	is
appropriate 	within 	the
	meaning 	of 	section
	3545(a) 	of 	the
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ARCADIA UNIFIED SCHOOL DISTRICT,
Employer , 	Case Nos. 	LA-R-278
and 	LA-UC-17
ARCADIA TEACHERS ASSOCIATION, CTA/NEA, 	PERB Decision No. 93
and
Employee Organization,
May 17, 1979
ARCADIA PUPIL SUPPORT SERVICES
ASSOCIATION,
Employee Organization.
Appearances: Daniel C. Cassidy, Attorney (Paterson & Taggart)
for Arcadia Unified School District; Charles R. Gustafson,
Attorney for Arcadia Teachers Association, CTA/NEA;
Thomas C. Agin (California Pupil Services Employment Relations
Corp.) for Arcadia Pupil Support Services Association.
Before Gluck, Chairperson; Gonzales, Member.
DECISION
This case comes before the Public Employment Relations
Board (hereafter PERB or Board) on exceptions filed by the
Arcadia Unified School District (hereafter District) to the
attached hearing officer proposed decision. For the reasons
set forth below, the Board affirms the hearing officer's
finding that a unit consisting of counselors, psychologists,
nurses, speech therapists, and reading specialists is
appropriate within the meaning of section 3545 (a) of the

Educational 	Employment 	Relations 	Act 	(hereafter 	EERA) .1 	The
Board 	also 	denies 	the 	District's 	request 	for 	oral 	argument 	and
reopening 	the 	record.
DISCUSSION
In 	this 	case, 	the 	Arcadia 	Pupil 	Support 	Services
Association 	(hereafter 	APSSA) 	filed 	a 	request 	for 	recognition
in 	a 	proposed 	unit 	of 	counselors, 	psychologists, 	nurses, 	speech
therapists, 	and 	reading 	specialists 	on April 	1, 	1976. 	No 	other
employee 	organization 	intervened, 	but 	the 	District 	contested
the 	appropriateness 	of 	APSSA's 	proposed 	unit. 	On 	September 	30,
1976, 	the 	District 	and 	the 	Arcadia 	Teachers 	Association
(hereafter 	ATA) 	jointly petitioned 	PERB 	for 	a 	unit
modification. 	The 	petition 	sought 	to 	add 	the 	classifications
of 	counselor, 	psychologist, 	nurse, 	speech 	therapist, 	and
reading 	specialist 	to 	the 	existing 	unit 	of 	full-time 	teachers,
librarians, 	and 	temporary 	teachers, 	in 	which 	ATA 	had 	been
voluntarily 	recognized 	as 	the 	exclusive 	representative 	by 	the
District 	on August 	2, 	1976. 	A hearing 	was 	held 	on March 	21 	and
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references 	are
to 	the 	Government 	Code. 	Section 	3545(a) 	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.
2
Educational Employment Relations Act (hereafter EERA) . 1 The
Board also denies the District's request for oral argument and
reopening the record.
DISCUSSION
In this case, the Arcadia Pupil Support Services
Association (hereafter APSSA) filed a request for recognition
in a proposed unit of counselors, psychologists, nurses, speech
therapists, and reading specialists on April 1, 1976. No other
employee organization intervened, but the District contested
the appropriateness of APSSA's proposed unit. On September 30,
1976, the District and the Arcadia Teachers Association
(hereafter ATA) jointly petitioned PERB for a unit
modification. 	The petition sought to add the classifications
of counselor, psychologist, nurse, speech therapist, and
reading specialist to the existing unit of full-time teachers,
librarians, and temporary teachers, in which ATA had been
voluntarily recognized as the exclusive representative by the
District on August 2, 1976. A hearing was held on March 21 and
The EERA is codified at Government Code section 3540 et
seq. 	Unless otherwise indicated, all statutory references are
to the Government Code. 	Section 3545 (a) 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.
2

30, 	1977, 	on 	APSSA's 	petition 	for 	recognition 	and 	the 	unit
modification 	petition 	filed 	jointly 	by ATA 	and 	the 	District, 	in
which 	all 	three 	parties 	participated.2
This 	case 	poses 	two 	issues. 	First, 	there 	is 	a 	threshold
question 	as 	to 	whether 	the 	unit 	modification 	petition 	filed 	by
the 	District 	and 	ATA, 	which 	seeks 	to 	add 	classifications
covered 	by 	APSSA 1 s 	request 	for 	recognition, 	should 	be
entertained 	by 	the 	Board. 	The 	Board must 	decide 	if, 	when 	one
employee 	organization 	has 	filed 	an 	original 	request 	for
recognition 	covering 	specific 	classifications 	pursuant 	to
section 	3544,3 	another 	organization 	can 	appropriately 	assist
a 	claim 	to 	represent 	those 	classifications 	by 	filing 	a 	unit
modification 	petition 	seeking 	to 	add 	them 	to 	its 	unit. 	The
2The 	procedural 	history of 	this 	case 	is 	more
fully 	set 	forth 	in 	the 	attached 	proposed 	decision 	of
the 	hearing 	officer. 	The 	Board 	hereby 	adopts 	that
procedural 	history.
3section 	3544 	provides 	in 	pertinent 	part:
An 	employee 	organization may 	become 	the
exclusive 	representative 	for 	the 	employees
of 	an 	appropriate 	unit 	for 	purposes 	of
meeting 	and 	negotiating 	by 	filing 	a 	request
with 	a 	public 	school 	employer 	alleging 	that
a 	majority of 	the 	employees 	in 	an
appropriate 	unit 	wish 	to 	be 	represented 	by
such 	organization 	and 	asking 	the 	public
school 	employer 	to 	recognize 	it 	as 	the
exclusive 	representative. 	The 	request 	shall
describe 	the 	grouping 	of 	jobs 	or 	positions
which 	constitute 	the 	unit 	claimed 	to 	be
appropriate 	and 	shall 	include 	proof 	of
majority 	support 	on 	the 	basis 	of 	current
dues 	deduction 	authorizations 	or 	other
evidence 	such 	as 	notarized 	membership 	lists,
or 	membership 	cards, 	or 	petitions
designating 	the 	organization 	as 	the
exclusive 	representative 	of 	the 	employees.
3
30, 1977, on APSSA's petition for recognition and the unit
modification petition filed jointly by ATA and the District, in
which all three parties participated. 2
This case poses two issues. 	First, there is a threshold
question as to whether the unit modification petition filed by
the District and ATA, which seeks to add classifications
covered by APSSA's request for recognition, should be
entertained by the Board. The Board must decide if, when one
employee organization has filed an original request for
recognition covering specific classifications pursuant to
section 3544,3 another organization can appropriately assist
a claim to represent those classifications by filing a unit
modification petition seeking to add them to its unit. The
2The procedural history of this case is more
fully set forth in the attached proposed decision of
the hearing officer. 	The Board hereby adopts that
procedural history.
3 Section 3544 provides in pertinent part:
An employee organization may become the
exclusive representative for the employees
of an appropriate unit for purposes of
meeting and negotiating by filing a request
with a public school employer alleging that
a majority of the employees in an
appropriate unit wish to be represented by
such organization and asking the public
school employer to recognize it as the
exclusive representative. The request shall
describe the grouping of jobs or positions
which constitute the unit claimed to be
appropriate and shall include proof of
majority support on the basis of current
dues deduction authorizations or other
evidence such as notarized membership lists,
or membership cards, or petitions
designating the organization as the
exclusive representative of the employees.
3

second 	issue 	is 	the 	unit 	placement 	of 	the 	counselors,
psychologists, 	nurses, 	speech 	therapists, 	and 	reading
specialists.
With 	respect 	to 	the 	first 	issue, 	although 	the 	applicable
statute4 	and 	PERB 	regulation5 	provide 	no 	explicit
4 section 	3541.3(e) 	provides 	that 	the 	Board 	shall 	have 	the
power 	and 	duty:
To 	establish 	by 	regulation 	appropriate
procedures 	for 	review 	of 	proposals 	to 	change
unit 	determinations.
5PERB 	rules 	are 	codified 	at 	California Administrative
Code, 	title 	8, 	section 	31000 	et 	seq.
Former 	PERB 	rule 	33260, applicable 	at 	the 	time 	the 	present
unit 	modification 	petition 	was 	filed, 	provides:
(a) 	An 	employee 	organization, 	an 	employer,
or 	both 	jointly, 	may 	file 	with 	the 	regional
office 	a 	petition 	for 	a 	change 	in 	unit
determination 	pursuant 	to 	Section 	3541.3(e)
of 	the 	Act.
(b) 	The 	petition 	shall 	contain 	the
f 	owing 	information:
(1) 	The 	name, 	address 	and 	county 	of
the 	employer;
(2) 	The 	name 	and 	address 	of 	the
employee 	organization, 	and 	the 	name,
address 	and 	telephone 	the 	agent 	to
be 	contacted;
(3) 	A 	scr 	ion 	of 	the 	es 	ished
unit;
(4) 	The 	approx 	number 	of
employees 	in 	the 	establis 	unit;
(5) 	e 	volunt 	r 	nition 	was
4
second issue is the unit placement of the counselors,
psychologists, nurses, speech therapists, and reading
specialists.
With respect to the first issue, although the applicable
statute4 and PERB regulations provide no explicit
Section 3541.3 (e) provides that the Board shall have the
power and duty:
To establish by regulation appropriate
procedures for review of proposals to change
unit determinations.
PERB rules are codified at California Administrative
Code, title 8, section 31000 et seq.
Former PERB rule 33260, applicable at the time the present
unit modification petition was filed, provides:
) An employee organization, an employer,
or both jointly, may file with the regional
office a petition for a change in unit
determination pursuant to Section 3541.3(e)
of the Act.
(b) The petition shall contain the
following information:
(1) 	The name, address and county of
the employer;
(2) The name and address of the
employee organization, and the name,
address and telephone of the agent to
be contacted;
(3) A description of the established
unit;
(4) The approximate number of
employees in the established unit;
(5) The date voluntary recognition was
4

limitations
	on
	unit
	modification
	procedures,6 	the
	Board
	finds
that
	such
	proceedings 	are
	implicitly
	limited
	by
	the
	statutory
and
	regulatory
	scheme
	for
	initial
	unit
	determination
proceedings.
	When
	an 	employee
	organization
	wishes
	to
	assert
	a
claim
	to 	represent
	employee
	classifications
	covered
	in
	another
extended 	or 	the
	existing
	certification
was
	issued;
(6) 	A
description
	of 	the
	proposed
	unit;
(7)
	The
	approximate
	number
	of
employees
	in
	the
	proposed
	unit;
(8)
	The 	name
	and
	address 	of
	any
	other
employee
	organization
	known
	to
	claim
	to
represent
	any 	employees
	affected
	by
	the
proposed
	change
	in
	the
	established 	unit;
(9) 	A
concise 	statement
	setting 	forth
the 	reasons 	for 	the 	request
	to
	change
the
	unit 	determination.
(c)
	A
copy
	of
	a
	petition 	filed
	by
	anemployee
	organization
	or
	an
	employer
	alone
shall
	be
	concurrently 	served
	on
	the 	other
party.	
A	
statement 	of
	service
	shall
	be
	sent
to
	the 	regional
	office
	with 	the
	petition.
(d)
	The
	employer
	shall
	post
	a
	copy
	of 	the
notice
	conspicuously
	on
	all
	employee
bulletin
	boards
	in
	each
	facility
	of 	the
employer
	in
	which
	members
	in 	the
	established
unit
	and
	in 	the
	unit
	claimed
	to
	be
appropriate 	are
	employed.
	The
	notice 	shall
remain
	posted 	for
	at 	least
	five
	workdays.
On
	January 	18, 	79,
	this
	rule
	was 	r
	aced 	by
	PERB
	rules
33260-32265.
6
1n
	contrast,
	the 	recent 	adopted
	PERB
	rules
	on
	unit
ifications 	set 	forth, 	in
	il,
	circumstances
	r
unit 	modification
	titians 	fil
	in 	rule 	3326l(a)
(
b)
:
(a) 	A	
recognized 	or
	certified
	employee
organization
	may
	file
	with 	the 	Regional
Office
	a
	petition 	for
	a 	change 	in 	unit
5
limitations on unit modification procedures, 6 the Board finds
that such proceedings are implicitly limited by the statutory
and regulatory scheme for initial unit determination
proceedings. 	When an employee organization wishes to assert a
claim to represent employee classifications covered in another
extended or the existing certification
was issued;
(6) A description of the proposed unit;
(7) The approximate number of
employees in the proposed unit;
(8) The name and address of any other
employee organization known to claim to
represent any employees affected by the
proposed change in the established unit;
(9) A concise statement setting forth
the reasons for the request to change
the unit determination.
(c) A copy of a petition filed by an
employee organization or an employer alone
shall be concurrently served on the other
party. A statement of service shall be sent
to the regional office with the petition.
(d) The employer shall post a copy of the
notice conspicuously on all employee
bulletin boards in each facility of the
employer in which members in the established
unit and in the unit claimed to be
appropriate are employed. The notice shall
remain posted for at least five workdays.
On January 18, 1979, this rule was replaced by PERB rules
33260-32265.
6 In contrast, the recently adopted PERB rules on unit
modifications set forth, in detail, the circumstances under
which unit modification petitions may be filed in rule 33261 (a)
and (b) :
(a) A recognized or certified employee
organization may file with the Regional
Office a petition for a change in unit
5

determinations 	pursuant 	to 	section
3541.3(e) 	of 	the 	Act.
(1) 	To 	add 	to 	the 	unit 	classifications
which 	existed 	prior 	to 	the 	recognition
or 	certification of 	the 	current
exclusive 	representative 	of 	the 	unit,
provided 	such 	petition 	is 	filed 	at 	least
12 	months 	after 	the 	date 	of 	said
recognition 	or 	certification;
(2) 	To 	add 	to 	the 	unit 	new
classifications 	created 	since
recognition 	or 	certification of 	the
current 	exclusive 	representative.
(3) 	To 	reflect 	changes 	in 	the 	identity
of 	the 	exclusive 	representative 	other
than 	a 	new 	or 	different 	representative.
(4) 	To 	divide 	an 	existing 	unit 	into 	two
or 	more 	appropriate 	units.
(b) 	A recognized 	or 	certified 	employee
organization, 	an 	employer, 	or 	both 	jointly
may 	file 	with 	the 	Regional 	Office 	a 	petition
of 	change 	in 	unit 	determination 	pursuant 	to
selection 	3541.3(e) 	of 	the 	Act.
(1) 	To 	delete 	classifications 	no 	longer
in 	existence 	or 	which 	by 	virtue 	of
changes 	in 	circumstances 	are 	no 	longer
appropriate 	to 	the 	established 	uniti
(2) 	To 	update 	classification 	titles
where 	the 	duties 	are 	not 	changed
sufficiently 	to 	cause 	deletion 	from 	the
established 	unit;
(3) 	To make 	technical 	changes 	to
clarify 	the 	unit 	description.
Also 	see 	Board 	Resolution 	No. 	6, 	adopted 	by 	PERB 	at 	its
July 	6, 	1976, 	public meeting 	and 	cited 	by 	the 	District 	and 	ATA
in 	filing 	their 	unit 	modification 	petition. 	It 	provides:
Petitions 	for 	changes 	in 	unit 	determinations 	pursuant
to 	Section 	3541.3(e) 	of 	the 	Act 	will 	be 	entertained 	by
the 	Educational 	Employment 	Relations 	Board 	under 	the
following 	circumstances:
1. 	Where 	both 	parties 	jointly 	file 	the 	petition; 	or
6
determinations pursuant to section
3541.3 (e) of the Act.
(1) To add to the unit classifications
which existed prior to the recognition
or certification of the current
exclusive representative of the unit,
provided such petition is filed at least
12 months after the date of said
recognition or certification;
(2) To add to the unit new
classifications created since
recognition or certification of the
current exclusive representative.
To reflect changes in the identity
of the exclusive representative other
than a new or different representative.
(4) To divide an existing unit into two
or more appropriate units.
(b) A recognized or certified employee
organization, an employer, or both jointly
may file with the Regional Office a petition
of change in unit determination pursuant to
selection 3541.3 (e) of the Act.
(1) To delete classifications no longer
in existence or which by virtue of
changes in circumstances are no longer
appropriate to the established unit;
(2) To update classification titles
where the duties are not changed
sufficiently to cause deletion from the
established unit;
(3) To make technical changes to
clarify the unit description.
Also see Board Resolution No. 6, adopted by PERB at its
July 6, 1976, public meeting and cited by the District and ATA
in filing their unit modification petition. 	It provides:
Petitions for changes in unit determinations pursuant
to Section 3541.3 (e) of the Act will be entertained by
the Educational Employment Relations Board under the
following circumstances:
1. Where both parties jointly file the petition; or
6

organization's 	original 	request 	for 	recognition, 	section
3544.l(b) 	provides 	that 	it 	may 	do 	so 	by 	submitting 	a 	competing
claim 	of 	representation 	within 	15 	workdays 	of 	the 	posting 	of
notice 	of 	the 	original 	request.7 	Or, 	if 	the 	organization 	has
already 	filed 	a 	request 	for 	recognition, 	it may, 	pursuant 	to
PERB 	rule 	33100(b), 	amend 	it 	to 	cover 	other 	classifications,
2. 	Where 	there 	has 	been 	a 	change 	in 	the 	circumstances
which 	existed 	at 	the 	time 	of 	the 	initial 	unit
determination.
This 	resolution 	does 	not 	bind 	the 	Board 	in 	deciding 	whether 	a
unit 	modification 	petition 	is 	appropriately 	filed. 	El 	Centro
School 	District 	(1/2/79) 	PERB 	Order 	No. 	Ad-51.
7section 	3544.l(b) 	provides:
The 	public 	school 	employer 	shall grant 	a 	request 	for
recognition 	filed 	pursuant 	to 	section 	3544 	unless:
Another 	employee 	organization 	either 	files
with 	the 	public 	school 	employer 	a 	challenge
to 	the 	appropriateness 	of 	the 	unit 	or
submits 	a 	competing 	claim 	of 	representation
within 	15 	workdays 	of 	the 	posting 	of 	notice
of 	the 	written 	request. 	The 	claim 	shall 	be
evidenced 	by 	current 	dues 	deductions
authorizations 	or 	other 	evidence 	such 	as
notarized membership 	lists, 	or 	membership
cards, 	or 	petitions 	signed 	by 	employees 	in
the 	unit 	indicating 	their 	desire 	to 	be
represented 	by 	the 	organization. 	If 	the
claim 	is 	evidenced 	by 	the 	support 	of 	at
least 	30 	percent 	the 	members 	of 	an
appropriate 	unit, 	a 	question 	of
representation 	shall 	be 	deemed 	to 	exist
the 	public 	school 	employer 	shall 	noti 	the
board 	which 	shall 	conduct 	a 	representation
election 	suant 	to 	Section 	3544.7, 	s
subdivisions 	(c) 	or 	(d) 	this 	section
app 	; * 	® 	®
7
organization's original request for recognition, section
3544. 1(b) provides that it may do so by submitting a competing
claim of representation within 15 workdays of the posting of
notice of the original request.7 Or, if the organization has
already filed a request for recognition, it may, pursuant to
PERB rule 33100 (b) , amend it to cover other classifications,
2 . 	Where there has been a change in the circumstances
which existed at the time of the initial unit
determination.
This resolution does not bind the Board in deciding whether a
unit modification petition is appropriately filed. El Centro
School District (1/2/79) PERB Order No. Ad-51.
7 Section 3544.1(b) provides:
The public school employer shall grant a request for
recognition filed pursuant to section 3544 unless:
Another employee organization either files
with the public school employer a challenge
to the appropriateness of the unit or
submits a competing claim of representation
within 15 workdays of the posting of notice
of the written request. The claim shall be
evidenced by current dues deductions
authorizations or other evidence such as
notarized membership lists, or membership
cards, or petitions signed by employees in
the unit indicating their desire to be
represented by the organization. 	If the
claim is evidenced by the support of at
least 30 percent of the members of an
appropriate unit, a question of
representation shall be deemed to exist and
the public school employer shall notify the
board which shall conduct a representation
election pursuant to Section 3544.7, unless
subdivisions (c) or (d) of this section
apply; . .
7

provided 	that 	it 	does 	so 	before 	it 	receives 	the 	employer's
decision 	on 	the 	original 	request.8
It 	is 	thus 	clear 	that 	under 	the 	EERA 	and 	applicable 	rules,
all 	claims 	to 	represent 	employees 	who 	have 	already 	been
petitioned 	for 	by 	another 	organization must 	be 	filed 	within 	a
limited 	period 	after 	the 	initial 	petition 	has 	been 	filed. 	This
indicates 	a 	basic 	intent 	to 	place 	a 	time 	limit 	on 	the 	filing 	of
competing 	petitions. 	Claims 	to 	represent 	the 	same 	employees
should 	be 	resolved 	simultaneously; 	the 	time 	limits 	imposed 	on
interventions 	preclude 	the 	possibility 	of 	litigating
conflicting 	claims 	at 	different 	times. 	This 	statutory 	scheme
would 	be 	thwarted 	if 	a 	competing 	organization 	could 	make 	a
formal 	claim 	of 	representation 	at 	a 	later 	time 	through 	some
other 	procedure.
In 	the 	present 	case, 	ATA 	used 	none 	of 	the 	available 	initial
representation 	procedures 	to 	indicate 	its 	interest 	in
representing 	the 	classifications 	requested 	in APSSA's 	initial
petition 	for 	recognition, 	although 	nothing 	prevented 	it 	from
doing 	so. 	Instead, 	weeks 	after 	it 	should 	have 	made 	its
purported 	competing 	claim 	of 	representation 	known, 	it 	joined
the 	District 	in 	filing 	a 	unit 	modification 	petition 	seeking 	to
those 	itions 	to 	its 	newly 	recogniz 	unit. 	In 	essence;
ATA 	attempted 	to 	intervene 	in APSSA's 	requested 	unit 	without
8 	33100(b) 	provi 	sin 	rtinent 	t:
A request 	for 	recognition 	or 	intervention may
amended 	to 	add 	new 	job 	descriptions 	to 	a 	proposed 	unit
at 	any 	time 	prior 	to 	receipt 	by 	the 	requesting 	party
of 	the 	employer 	decision 	served 	pursuant 	to 	section
33190 ..••
8
provided that it does so before it receives the employer's
decision on the original request. 8
It is thus clear that under the EERA and applicable rules,
all claims to represent employees who have already been
petitioned for by another organization must be filed within a
limited period after the initial petition has been filed. 	This
indicates a basic intent to place a time limit on the filing of
competing petitions. Claims to represent the same employees
should be resolved simultaneously; the time limits imposed on
interventions preclude the possibility of litigating
conflicting claims at different times. This statutory scheme
would be thwarted if a competing organization could make a
formal claim of representation at a later time through some
other procedure.
In the present case, ATA used none of the available initial
representation procedures to indicate its interest in
representing the classifications requested in APSSA's initial
petition for recognition, although nothing prevented it from
doing so. Instead, weeks after it should have made its
purported competing claim of representation known, it joined
the District in filing a unit modification petition seeking to
add those positions to its newly recognized unit. In essence,
ATA attempted to intervene in APSSA's requested unit without
Rule 33100 (b) provides in pertinent part:
A request for recognition or intervention may be
amended to add new job descriptions to a proposed unit
at any time prior to receipt by the requesting party
of the employer decision served pursuant to section
33190. .

following 	the 	intervention 	procedures 	set 	forth 	in 	the 	EERA 	and
the 	Board's 	rules.
If 	the 	Board 	allowed 	unit 	modification 	procedures 	to 	be
used 	in 	this 	way, 	an 	employee 	organization, 	with 	the
cooperation 	of 	the 	employer, 	could 	nullify 	the 	statutory 	15
workday 	time 	limit 	for 	filing 	competing 	claims 	of
representation. 	The 	Board 	will 	not 	allow 	this 	use 	of 	unit
modification 	procedures 	to 	circumvent 	the 	statutory
requirements 	for 	interventions.
The 	Board 	also 	notes 	that 	unit 	modification 	procedures,
under 	former 	PERB 	rule 	33260, 	do 	not 	provide 	for 	notice 	to 	or
participation 	by 	any 	employee 	organization 	other 	than 	the
exclusive 	representative. 	For 	example, 	in 	this 	case 	APSSA,
although 	vitally 	concerned 	with 	the 	representation 	of 	the
classifications 	it 	petitioned 	for, 	was 	not 	technically 	a 	party
to 	the 	procedure 	chosen 	by 	the 	District 	and ATA 	for 	resolving
the 	unit 	question. 	This 	significant 	omission 	in 	the 	rule
governing 	unit 	modification 	procedures 	provides 	an 	additional
indication 	that 	such 	procedures 	were 	not 	intended 	to 	be 	used 	to
add 	classifications 	which 	another 	employee 	organization
formally 	claims 	to 	represent 	through 	an 	original 	petition 	for
recognition. 	The 	procedures 	initiated 	by 	original 	recognition
petitions, 	which 	provide 	protection 	for 	all 	interested
parties,9 	were 	intended 	to 	and 	should 	be 	used 	to 	resolve
9 see 	PERB 	rules 	33050-33235. 	See 	specifically 	rules
33050 (c), 	33070 (c), 	33090, 	and 	33100 (h) , 	all 	of 	which 	require
that 	notice 	be 	given 	to 	all 	parties, 	and 	compare 	with 	former
PERB 	rule 	33260(c) 	which 	required 	that 	notice 	be 	given 	only 	to
"the 	other 	party."
9
following the intervention procedures set forth in the EERA and
the Board's rules.
If the Board allowed unit modification procedures to be
used in this way, an employee organization, with the
cooperation of the employer, could nullify the statutory 15
workday time limit for filing competing claims of
representation. The Board will not allow this use of unit
modification procedures to circumvent the statutory
requirements for interventions.
The Board also notes that unit modification procedures,
under former PERB rule 33260, do not provide for notice to or
participation by any employee organization other than the
exclusive representative. For example, in this case APSSA,
although vitally concerned with the representation of the
classifications it petitioned for, was not technically a party
to the procedure chosen by the District and ATA for resolving
the unit question. This significant omission in the rule
governing unit modification procedures provides an additional
indication that such procedures were not intended to be used to
add classifications which another employee organization
formally claims to represent through an original petition for
recognition. 	The procedures initiated by original recognition
petitions, which provide protection for all interested
parties,9 were intended to and should be used to resolve
9 See PERB rules 33050-33235. See specifically rules
33050 (c) , 33070 (c) , 33090, and 33100 (h) , all of which require
that notice be given to all parties, and compare with former
PERB rule 33260 (c) which required that notice be given only to
"the other party."

competing
	representational
	claims
	such
	as
	that
	in 	the
	present
case.
El
	Centro
	School
	District,
	supra,
	PERB
	Order
	No.
	Ad-51,
PERB's
	most
	recent 	decision
	on
	unit 	modifications, 	provides
another
	indication
	that
	the
	situations
	in
	which
	a
	unit
modification
	petition
	seeking
	to
	add
	classifications 	is
appropriate 	are
	limited.
	Although
	the
	Board
	said
	that
	a
	unit
modification
	petition
	"must 	be
	entertained
	by
	the
	regional
director
	when
	the 	requirements
	of
	rule
	33260
	and
	those
	imposed
by
	statute
	have
	been
	satisfied,"
	it
	went 	on
	to
	state
	that
	the
fact 	that
	the
	employee
	organization
	"did 	not
	originally
	seek
	to
represent
	certain
	of 	the
	subject
	employees
	now
	sought
	in
	its
petition
	should 	not
	automatically
	bar 	the
	current
	petition,"
and
	continued 	with
	a
	careful 	analysis
	of
	the
	specific
	reasons
in 	the
	case 	for 	allowing 	the 	exclusive 	representative 	to
	add
classifications
	it
	could
	have
	requested 	in
	its
	original
petition
	for
	representation.
	Among
	them
	were
	that:
More
	than
	a
	year
	and 	a
	half
	has
	passed 	sincethe
	original
	voluntary 	recognition 	occurred
.••
	No
	other
	employee
	organization
	has
filed
	a
	petition
	to 	represent
	any
certificated
	employees
	in 	the
	District.
There
	is
	no
	evidence 	presented 	to
	the
	Board
that 	either
	the
	original petiton
	or 	the
instant 	petition
	for
	change
	was
	des 	ned
	toor
	does
	interfere
	th
	any
	employee's
	rightof
	self
	anization.10
The
	situation
	in 	the 	present 	case
	falls
	outside 	of 	those
limitations.
	Not
	only 	were
	untary
	r
	nition
lO	10El Centro School District, supra, PERB Order No. Ad-51,
at
	pp. 	6-7.
El 	Centro 	School
	District, 	supra,
	PERB 	Or
10
No. 	Ad-51,
competing representational claims such as that in the present
case.
El Centro School District, supra, PERB Order No. Ad-51,
PERB's most recent decision on unit modifications, provides
another indication that the situations in which a unit
modification petition seeking to add classifications is
appropriate are limited. Although the Board said that a unit
modification petition "must be entertained by the regional
director when the requirements of rule 33260 and those imposed
by statute have been satisfied," it went on to state that the
fact that the employee organization "did not originally seek to
represent certain of the subject employees now sought in its
petition should not automatically bar the current petition,"
and continued with a careful analysis of the specific reasons
in the case for allowing the exclusive representative to add
classifications it could have requested in its original
petition for representation. Among them were that:
More than a year and a half has passed since
the original voluntary recognition occurred
. No other employee organization has
filed a petition to represent any
certificated employees in the District.
There is no evidence presented to the Board
that either the original petiton or the
instant petition for change was designed to
or does interfere with any employee's right
of self organization. 10
The situation in the present case falls outside of those
limitations. Not only were the voluntary recognition and the
at pp. 6-7.
10

petition
	for
	unit
	modification
	almost
	simultaneous, 	but 	another
employee
	organization
	had
	already
	petitioned 	to
	represent 	the
very
	classifications
	sought
	to
	be
	added.
For
	the
	foregoing
	reasons, 	the
	Board
	finds
	that
	a
	unit
modification
	proceeding
	is
	not
	an
	appropriate
	means
	of
asserting
	a
	claim
	of
	representation 	in
	the 	face 	of
	an
outstanding
	petition
	for
	recognition.
	It
	therefore
	dismisses
the
	unit
	modification
	petition 	filed
	by
	the
	District
	and
	ATA.
II
There 	remains
	the
	issue 	raised
	by APSSA's
	original
	request
for 	recognition
	and
	the
	District's
	continued
	doubt
	of
	the
appropriateness 	of 	the
	unit.
	Since
	a
	record
	on
	the
classifications
	in 	question
	has 	been
	made
	and
	APSSA
	and
	the
District
	had 	a
	full
	opportunity
	to 	participate
	in 	the
hearing,11 	the
	Board
	will
	treat 	this
	case 	as
	a
	unit
determination
	proceeding
	on
	APSSA 1 s
	petition
	for
recognition.12
This 	case
	differs
	from 	many
	early 	unit
	determination 	cases
11
ATA
	was
	also 	represented
	at
	the 	hearing.
	However,
	since
	the
unit 	modification
	petition
	has 	been
	dismissed,
	and
	ATA
	did 	not
intervene 	in
	APSSA's
	petition
	for 	recognition,
	ATA
	was
	not
formally
	a
	party 	in 	the 	proceeding.
	Hence, 	under
	PERB
	rule
33480, 	which
	provides
	that
	any 	employee
	organization	
which	
was
a
	party 	to 	the 	representation 	hearing
	may
	appear
	on
	the
election 	ballot,
	ATA
	is
	not
	eligible 	to
	appear
	on	
the	
election
ballot
	in
	this 	unit.
12 The 	Board
	takes
	this 	action 	pursuant 	to
	PERB
	rule
32320(a)
(2),
	which
	provides	
that	
the
	Board
	itself	
may:
Affirm, 	modify 	or 	reverse 	the 	proposed
decision, 	order 	the 	record 	reopened 	for 	the
taking 	of 	further 	evidence, 	or 	take 	such
other 	action 	as
	it
	considers 	appropriate.
11
petition for unit modification almost simultaneous, but another
employee organization had already petitioned to represent the
very classifications sought to be added.
For the foregoing reasons, the Board finds that a unit
modification proceeding is not an appropriate means of
asserting a claim of representation in the face of an
outstanding petition for recognition. It therefore dismisses
the unit modification petition filed by the District and ATA.
II
There remains the issue raised by APSSA's original request
for recognition and the District's continued doubt of the
appropriateness of the unit. Since a record on the
classifications in question has been made and APSSA and the
District had a full opportunity to participate in the
hearing ,ll the Board will treat this case as a unit
determination proceeding on APSSA's petition for
recognition. 12
This case differs from many early unit determination cases
LATA was also represented at the hearing. However, since the
unit modification petition has been dismissed, and ATA did not
intervene in APSSA's petition for recognition, ATA was not
formally a party in the proceeding. Hence, under PERB rule
33480, which provides that any employee organization which was
a party to the representation hearing may appear on the
election ballot, ATA is not eligible to appear on the election
ballot in this unit.
12The Board takes this action pursuant to PERB rule
32320 (a) (2) , which provides that the Board itself may:
Affirm, modify or reverse the proposed
decision, order the record reopened for the
taking of further evidence, or take such
other action as it considers appropriate.
11

in 	that 	the 	Board 	is 	faced 	with 	an 	already 	existing 	unit,
created 	by 	the 	District's 	voluntary 	recognition 	of 	ATA. 	The
Board 	will 	not 	disturb 	an 	existing 	unit 	when 	its 	composition 	is
not 	at 	issue.13 	In 	this 	case, 	the 	composition 	of 	ATA's 	unit
is 	not 	before 	the 	Board 	at 	this 	time 	since 	the 	validity 	of 	the
voluntary 	recognition 	has 	not 	been 	placed 	at 	issue 	and 	the
petition 	for 	unit 	modification 	has 	been 	dismissed. 	Therefore,
the 	Board 	will 	not 	examine 	the 	make 	up 	of 	ATA's 	unit, 	nor 	will
it, 	on 	its 	own motion, 	add 	classifications 	to 	such 	an 	already
established 	unit.
Thus, 	the 	only 	issue 	before 	the 	Board 	at 	this 	time 	is
whether 	a 	unit 	consisting 	of 	counselors, 	psychologists, 	nurses,
speech 	therapists, 	and 	reading 	specialists 	is 	appropriate
within 	the 	meaning 	of 	section 	3545(a). 	In 	examining 	past 	Board
decisions 	on 	the 	unit 	placement 	of 	non-teaching 	certificated
employees, 	it 	is 	readily 	apparent 	that 	the 	majority 	of 	the
Board 	has 	consistently, 	when presented 	with 	a 	choice, 	found 	a
unit 	which 	includes 	both 	classroom 	teachers 	and 	pupil 	support
13see 	Palo Alto 	Unified 	School 	District 	(1/9/79) 	PERB
Decision 	No. 	84, 	in 	which 	the 	majority 	of 	the 	Board, 	although
acknowledging 	that 	an 	overall 	unit 	of 	classroom 	teachers 	and
substitutes 	would 	be 	appropriate, 	refused 	to 	interfere 	with 	the
already 	established 	unit 	of 	regular 	classroom 	teachers 	by
adding 	substitutes.
Member 	Gonzales 	notes 	that 	he 	dissented 	from 	the 	majority's
decision 	in 	Palo 	Alto 	that 	either 	an 	overall 	unit 	of 	teachers
including 	substitutes 	or 	a 	separate 	unit 	of 	substitutes 	is 	an
appropriate 	unit. 	However, 	he 	agrees 	that 	the 	Board 	should 	not
interfere 	with 	the 	composition 	of 	established 	units 	in 	the
absence 	of 	a 	unit 	modification 	petition 	or 	some 	allegation 	that
the 	unit 	was 	established 	unlawfully.
12
in that the Board is faced with an already existing unit,
created by the District's voluntary recognition of ATA. 	The
Board will not disturb an existing unit when its composition is
not at issue. 13 In this case, the composition of ATA's unit
is not before the Board at this time since the validity of the
voluntary recognition has not been placed at issue and the
petition for unit modification has been dismissed. Therefore,
the Board will not examine the make up of ATA's unit, nor will
it, on its own motion, add classifications to such an already
established unit.
Thus, the only issue before the Board at this time is
whether a unit consisting of counselors, psychologists, nurses,
speech therapists, and reading specialists is appropriate
within the meaning of section 3545 (a) . In examining past Board
decisions on the unit placement of non-teaching certificated
employees, it is readily apparent that the majority of the
Board has consistently, when presented with a choice, found a
unit which includes both classroom teachers and pupil support
13See Palo Alto Unified School District (1/9/79) PERB
Decision No. 84, in which the majority of the Board, although
acknowledging that an overall unit of classroom teachers and
substitutes would be appropriate, refused to interfere with the
already established unit of regular classroom teachers by
adding substitutes.
Member Gonzales notes that he dissented from the majority's
decision in Palo Alto that either an overall unit of teachers
including substitutes or a separate unit of substitutes is an
appropriate unit. However, he agrees that the Board should not
interfere with the composition of established units in the
absence of a unit modification petition or some allegation that
the unit was established unlawfully.
12

services 	personnel 	to 	be 	appropriate,14 	just 	as 	the 	Board,
when 	presented 	with 	a 	choice 	of 	more 	than 	one 	requested
grouping 	of 	employees, 	has 	generally 	tended 	to 	hold 	the 	larger
homogeneous 	group 	appropriate.15
But 	when 	the 	only 	issue 	before 	the 	Board 	is 	whether 	one
particular 	requested 	unit 	is 	appropriate, 	the 	Board must 	decide
whether 	that 	proposed 	unit, 	standing 	on 	its 	own, 	meets 	the
statutory 	criteria 	for 	an 	appropriate 	unit 	for 	negotiating.
This 	comports 	with 	the 	Board's 	procedure 	in 	Palo Alto 	Unified
School 	District, 	supra, 	PERB 	Decision 	No. 	84; 	after 	the
majority 	of 	the 	Board 	decided 	that 	it 	could 	not 	place 	the
14 see 	Los 	Angeles 	Unified 	School 	District 	(11/24/76) 	EERB
Decision 	No. 	5; 	Grossmont 	Union 	High 	School 	District 	(3/9/77)
EERB 	Decision 	No. 	11; 	Oakland 	Unified 	School 	District 	(3/28/77)
EERB 	Decision 	No. 	15; 	Pleasanton 	Joint 	Elementary 	School
District 	(9/12/77) 	EERB 	Decision 	No. 	24; 	Placer 	Union 	High
School 	District 	(9/12/77) 	EERB 	Decision 	No. 	25; 	Washington
Unified 	School 	District 	(9/14/77) 	EERB 	Decision 	No. 	27;
Paramount 	Unified 	School 	District 	(10/7/77) 	EERB 	Decision
No. 	33.
Member 	Gonzales 	notes 	that 	he 	has 	consistently 	dissented
from 	these 	decisions. 	He 	believes, 	as 	set 	forth 	in 	detail 	in
his 	dissent 	in 	Grossmont, 	supra, 	that 	pupil 	support 	service
employees 	have 	a 	separate 	community 	of 	interest 	from 	other
certificated 	employees 	which 	warrants 	their 	inclusion 	in 	a
separate 	unit. 	Therefore, 	he 	would 	find 	a 	separate 	unit
appropriate 	in 	this 	case 	even 	if 	the 	Board 	had 	the 	option 	of
including 	the 	disputed 	positions 	in 	the 	established 	unit.
15see 	Sacramento City 	Unified 	School 	District 	(9/20/77)
EERB 	Decision 	No. 	30, 	in 	which 	the 	Board 	stated:
A 	arate 	unit 	is 	not 	warr 	mer
because 	a 	group 	of 	employees 	ea
community 	of 	interest 	among 	themselves,
that 	homogeneous 	group 	forms 	only 	a 	part 	of
a 	larger 	essentially 	homogeneous 	group
sharing 	similar 	conditions 	of 	employment 	and
job 	functions.
13
services personnel to be appropriate, 14 just as the Board,
when presented with a choice of more than one requested
grouping of employees, has generally tended to hold the larger
homogeneous group appropriate. 15
But when the only issue before the Board is whether one
particular requested unit is appropriate, the Board must decide
whether that proposed unit, standing on its own, meets the
statutory criteria for an appropriate unit for negotiating.
This comports with the Board's procedure in Palo Alto Unified
School District, supra, PERB Decision No. 84; after the
majority of the Board decided that it could not place the
14See Los Angeles Unified School District (11/24/76) EERB
Decision No. 5; Grossmont Union High School District (3/9/77)
EERB Decision No. 11; Oakland Unified School District (3/28/77)
EERB Decision No. 15; Pleasanton Joint Elementary School
District (9/12/77) EERB Decision No. 24; Placer Union High
School District (9/12/77) EERB Decision No. 25; Washington
Unified School District (9/14/77) EERB Decision No. 27;
Paramount Unified School District (10/7/77) EERB Decision
No. 33.
Member Gonzales notes that he has consistently dissented
from these decisions. 	He believes, as set forth in detail in
his dissent in Grossmont, supra, that pupil support service
employees have a separate community of interest from other
certificated employees which warrants their inclusion in a
separate unit. Therefore, he would find a separate unit
appropriate in this case even if the Board had the option of
including the disputed positions in the established unit.
15See Sacramento City Unified School District (9/20/77)
EERB Decision No. 30, in which the Board stated:
A separate unit is not warranted merely
because a group of employee share a
community of interest among themselves, when
that homogeneous group forms only a part of
a larger essentially homogeneous group
sharing similar conditions of employment and
job functions.
13

substitutes 	in 	the 	overall 	teachers 	unit, 	it 	examined 	the
substitutes 	as 	a 	group 	to 	determine 	whether 	they 	met 	the
statutory 	standards 	for 	an 	appropriate 	unit. 	Thus, 	the 	fact
that 	the 	majority 	has, 	in 	previous 	decisions, 	found 	an 	overall
certificated 	unit 	appropriate 	does 	not 	preclude 	the 	Board 	from
finding 	a 	separate 	unit 	of 	non-instructional 	certificated
employees 	appropriate 	under 	the 	circumstances 	of 	this 	case.
In 	the 	present 	case, 	the 	hearing 	officer 	found, 	and 	the
Board 	agrees, 	that 	the 	proposed 	unit 	of 	counselors,
psychologists, 	nurses, 	speech 	therapists, 	and 	reading
specialists 	is 	appropriate 	within 	the 	meaning 	of 	section
3545(a). 	This 	section 	sets 	forth 	three 	criteria 	for 	finding 	a
proposed 	unit 	appropriate: 	(1) 	community 	of 	interest, 	(2) 	past
practices, 	including 	the 	extent 	to 	which 	the 	employees 	belong
to 	the 	same 	employee 	organization, 	and 	(3) 	the 	effect 	of 	the
size 	of 	the 	unit 	on 	the 	efficient 	operation 	of 	the 	district.16
The 	hearing 	officer 	found 	that 	the 	classifications 	in
question 	share 	a 	community 	of 	interest 	among 	themselves, 	and
the 	Board 	affirms 	that 	finding.
The 	record 	contains 	little 	evidence 	on 	past 	practices 	and
there 	are 	no membership 	figures 	in 	the 	record. 	However, 	the
overwhelming 	majority 	of 	the 	employees 	in 	the 	disputed
classifications 	appear 	to 	support 	APSSA, 	as 	evidenced 	by
APSSA's 	80 	percent 	showing 	of 	interest. 	In 	addition, 	the
record 	i 	icates 	t 	majori 	of 	in 	each
classifications 	.in 	question 	support 	APSSA.
l6section 	3545(a) 	is 	quoted 	in 	full 	at 	note 	1, 	ante.
14
substitutes in the overall teachers unit, it examined the
substitutes as a group to determine whether they met the
statutory standards for an appropriate unit. 	Thus, the fact
that the majority has, in previous decisions, found an overall
certificated unit appropriate does not preclude the Board from
finding a separate unit of non-instructional certificated
employees appropriate under the circumstances of this case.
In the present case, the hearing officer found, and the
Board agrees, that the proposed unit of counselors,
psychologists, nurses, speech therapists, and reading
specialists is appropriate within the meaning of section
3545 (a) . This section sets forth three criteria for finding a
proposed unit appropriate: (1) community of interest, (2) past
practices, including the extent to which the employees belong
to the same employee organization, and (3) the effect of the
size of the unit on the efficient operation of the district. 16
The hearing officer found that the classifications in
question share a community of interest among themselves, and
the Board affirms that finding.
The record contains little evidence on past practices and
there are no membership figures in the record. However, the
overwhelming majority of the employees in the disputed
classifications appear to support APSSA, as evidenced by
APSSA's 80 percent showing of interest. In addition, the
record indicates that the majority of employees in each of the
classifications in question support APSSA.
16section 3545(a) is quoted in full at note 1, ante.
14

The 	District 	claims 	that 	its 	efficiency 	of 	operations 	will
be 	impaired 	if 	a 	separate 	unit 	is 	formed. 	However, 	given 	the
speculative 	nature 	of 	the 	District 	witness' 	testimony 	and 	the
fact 	that 	the 	record 	indicates 	that 	at 	one 	point 	the 	District
was 	willing 	to 	recognize 	APSSA 	if 	it 	would 	restrict 	its 	claim
to 	counselors 	and 	psychologists, 	the 	Board 	finds 	that 	the
proposed 	unit 	will 	not 	impair 	the 	District's 	efficiency 	of
operations. 	Negotiating 	with 	a 	unit 	of 	33 	employees 	is 	surely
not 	more 	burdensome 	to 	the 	District 	than 	negotiating 	with 	a
unit 	of 	18 	counselors 	and 	psychologists, 	which 	the 	District 	was
previously 	willing 	to 	do.
Given 	the 	community 	of 	interest 	among 	the 	employees 	in 	that
proposed 	unit 	and 	the 	fact 	that 	the 	evidence 	with 	respect 	to
the 	other 	two 	stationary 	criteria 	does 	not 	go 	against 	finding
the 	proposed 	unit 	appropriate, 	the 	Board 	finds 	that 	a 	unit
consisting 	of 	the 	classifications 	of 	counselor, 	psychologist,
nurse, 	speech 	therapist, 	and 	reading 	specialist 	is 	an
appropriate 	unit 	within 	the 	meaning 	of 	section 	3545(a).
The 	District 	argues 	that 	the 	pupil 	support 	services
employees 	should 	not 	be 	placed 	in 	a 	separate 	unit 	merely
because 	the 	District 	made 	a 	"procedural 	error" 	in 	recognizing
ATA 	be 	e 	the 	unit 	question 	was 	resolved. 	First, 	the
District's 	so-called 	"procedural" 	action 	had 	the 	substantive
feet 	resolvi 	the 	unit 	question 	with 	respect 	to 	those
employees 	in 	the 	voluntari 	r 	nized 	unit. 	A unit 	in 	ace
in 	a 	district 	cannot 	help 	but 	have 	an 	impact 	on 	the
configuration 	of 	remaining 	units 	in 	that 	district.
15
The District claims that its efficiency of operations will
be impaired if a separate unit is formed. However, given the
speculative nature of the District witness' testimony and the
fact that the record indicates that at one point the District
was willing to recognize APSSA if it would restrict its claim
to counselors and psychologists, the Board finds that the
proposed unit will not impair the District's efficiency of
operations. Negotiating with a unit of 33 employees is surely
not more burdensome to the District than negotiating with a
unit of 18 counselors and psychologists, which the District was
previously willing to do.
Given the community of interest among the employees in that
proposed unit and the fact that the evidence with respect to
the other two stationary criteria does not go against finding
the proposed unit appropriate, the Board finds that a unit
consisting of the classifications of counselor, psychologist,
nurse, speech therapist, and reading specialist is an
appropriate unit within the meaning of section 3545 (a) .
The District argues that the pupil support services
employees should not be placed in a separate unit merely
because the District made a "procedural error" in recognizing
ATA before the unit question was resolved. First, the
District's so-called "procedural" action had the substantive
effect of resolving the unit question with respect to those
employees in the voluntarily recognized unit. A unit in place
in a district cannot help but have an impact on the
configuration of remaining units in that district.
15

Further, 	the 	District 	does 	not 	sufficiently 	appreciate 	the
fact 	that 	the 	dispute 	in 	this 	case 	involved 	not 	merely 	the 	unit
placement 	of 	the 	five 	classifications 	in 	question 	but 	also 	the
question 	of 	who 	would 	represent 	them. 	When 	the 	only 	issue 	is 	a
dispute 	between 	one 	employee 	organization 	and 	an 	employer 	as 	to
the 	appropriate 	unit 	configuration, 	a 	consensual 	unit
modification 	procedure, 	following 	a 	voluntary 	recognition, 	may
be 	a 	reasonable means 	of 	expediting 	negotiations.17 	But 	when
more 	than 	one 	employee 	organization 	is 	competing 	to 	represent
the 	same 	employees, 	the 	statutory procedures 	designed 	for 	this
purpose 	and 	which 	protect 	the 	rights 	of 	all 	the 	employee
organizations 	should 	be 	used 	in 	the 	absence 	of 	an 	agreement
among 	all 	parties. 	The 	District's 	"procedural 	error" 	was 	made
in 	an 	effort 	to 	circumvent 	such 	procedures, 	and 	the 	Board, 	as
discussed 	above, 	will 	not 	condone 	such 	circumventions.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board ORDERS 	that:
1. 	A unit 	consisting 	of 	counselors, 	psychologists, 	nurses,
speech 	therapists, 	and 	reading 	specialists 	is 	appropriate 	for
negotiating 	in 	the 	Arcadia Unified 	School 	District 	provided
that 	an 	employee 	organization 	becomes 	the 	exclusive
representative.
17 	, 	e.g., 	Campbell 	Union 	High 	School 	District 	(8/17/78)
PERB 	Decision 	No. 	66, 	in 	which, 	pursuant 	to 	a 	consent 	election
agreement, 	disputes 	as 	to 	the 	supervisory 	and 	confidenti
status 	of 	certain 	classifications 	were 	resolved 	in 	a 	unit
modiification 	hearing. 	There 	was 	no 	dispute 	as 	to 	which
employee 	organization 	would 	represent 	the 	classifications 	if
they 	were 	not 	found 	to 	be 	confidential 	or 	supervisory.
16
Further, the District does not sufficiently appreciate the
fact that the dispute in this case involved not merely the unit
placement of the five classifications in question but also the
question of who would represent them. When the only issue is a
dispute between one employee organization and an employer as to
the appropriate unit configuration, a consensual unit
modification procedure, following a voluntary recognition, may
be a reasonable means of expediting negotiations. 17 But when
more than one employee organization is competing to represent
the same employees, the statutory procedures designed for this
purpose and which protect the rights of all the employee
organizations should be used in the absence of an agreement
among all parties. The District's "procedural error" was made
in an effort to circumvent such procedures, and the Board, as
discussed above, will not condone such circumventions.
ORDER
Upon the foregoing Decision and the entire record in this
case, the Public Employment Relations Board ORDERS that:
1. A unit consisting of counselors, psychologists, nurses,
speech therapists, and reading specialists is appropriate for
negotiating in the Arcadia Unified School District provided
that an employee organization becomes the exclusive
representative.
17see, e.g., Campbell Union High School District (8/17/78)
PERB Decision No. 66, in which, pursuant to a consent election
agreement, disputes as to the supervisory and confidential
status of certain classifications were resolved in a unit
modiification hearing. There was no dispute as to which
employee organization would represent the classifications if
they were not found to be confidential or supervisory.
16

2. 	If 	the 	Arcadia 	Unified 	School 	District 	does 	not 	grant
voluntary 	recognition 	to 	the 	Arcadia 	Pupil 	Support 	Services
Association, 	the 	regional 	director 	shall 	conduct 	a
representation 	election 	in 	the 	unit 	found 	appropriate 	in 	this
decision. 	Because 	the 	composition 	of 	the 	unit 	the 	Board 	has
found 	appropriate 	is 	the 	same 	as 	that 	which 	the 	Arcadia 	Pupil
Support 	Services 	Association 	seeks, 	no 	new 	showing 	of 	support
by 	that 	organization 	will 	be 	necessary.
r 	L. 	r 	r 	,
By 	Raymond 	J. 	Gonzales, 	Member 	Ha/ry Gluck, 	Chairperson
17
2. If the Arcadia Unified School District does not grant
voluntary recognition to the Arcadia Pupil Support Services
Association, the regional director shall conduct a
representation election in the unit found appropriate in this
decision. 	Because the composition of the unit the Board has
found appropriate is the same as that which the Arcadia Pupil
Support Services Association seeks, no new showing of support
by that organization will be necessary.
By Raymond J. Gonzales, Member 	Harry Gluck, Chairperson
17

PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF
	THE
	STATE
	OF
	CALIFORNIA
In
	the
	Matter
	of:
ARCADIA UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
ARCADIA
	TEACHERS
	ASSOCIATION, 	CTA/NEA,
Employee
	Organization,
and
ARCADIA 	PUPIL 	SUPPORT 	SERVICES 	ASSOCIATION,
Employee
	Organization.
CASE
	NOS.
	LA-R-278
LA-UC-17
PROPOSED
	DECISION
CONSOLIDATED
	UNIT
CLARIFICATION
	AND
REPRESENTATION
	DECISION
February
	24, 	1978
)
)
)
)
)
)
)
)
)
)
)
)
)
)
))
)
)
)
----------------------
Appearances: D	
_fil2Pearances:	
Daniel
	C.
	Cassidy, 	Attorney 	(Paterson
	&
Taggart)
,for
Arcadia 	Unified
	School
	District;
	Charles
	R.
	Gustafson, 	Attorney,
for
	Arcadia Teachers
	Association,
	CTA/NEA:
	Thomas
	C.
	Agin
	(CaliforniaPupil 	Services
	Employment
	Relations
	Corp.)
	for
	Arcadia 	Pupil
	Support
Services 	Association.
Proposed
	Decision
	by
	David
	Schlossberg,
	Hearing
	Officer.
PROCEDURAL
	HISTORY
Arcadia 	Unified 	School
	District
	(hereinafter 	"District")
	is
comprised 	of 	eight
	elementary 	schools, 	three 	junior
	high 	schools
and 	one 	high 	school
	and
	continuation 	school.
	The
	average
	daily
attendance 	is
	approximately 	10,000. 	There 	are 	approximately
	435
certificated
	employees, 	including
	14
	counselors, 	four
psychologists,
	two
	nurses, 	four 	speech
	therapists
	and
	nine 	reading
specialists.
l
PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
ARCADIA UNIFIED SCHOOL DISTRICT,
Employer ,
CASE NOS. 	LA-R-278
LA-UC-17
PROPOSED DECISIONand
CONSOLIDATED UNIT
ARCADIA TEACHERS ASSOCIATION, CTA/NEA, CLARIFICATION AND
REPRESENTATION DECISION
Employee Organization, )
and 	February 24, 1978
ARCADIA PUPIL SUPPORT SERVICES ASSOCIATION,)
Employee Organization.)
aniel C. Cassidy, Attorney (Paterson & Taggart) , for
Arcadia Unified School District; Charles R. Gustafson, Attorney,
for Arcadia Teachers Association, CTA/NEA: Thomas C. Agin (California
Pupil Services Employment Relations Corp. ) for Arcadia Pupil Support
Services Association.
Proposed Decision by David Schlossberg, Hearing Officer.
PROCEDURAL HISTORY
Arcadia Unified School District (hereinafter "District") is
comprised of eight elementary schools, three junior high schools
and one high school and continuation school. The average daily
attendance is approximately 10,000. There are approximately 435
certificated employees, including 14 counselors, four
psychologists, two nurses, four speech therapists and nine reading
specialists.
1

On
	April 	1,
	1976,
	the 	Arcadia 	Teachers
	Association,
	CTA/NEA
	(herein-
after
	ATA),
	filed
	with 	the
	District
	a
	request 	for 	recognition
	as
	the
exclusive
	representative
	for
	a
	unit 	consisting
	of
	all
	certificated
employees
	excluding
	management,
	confidential
	and
	supervisory
employees, 	high
	school
	counselors, 	junior
	high
	counselors,
elementary
	counselors, 	psychologists, 	nurses,
	speech
	therapists
and
	reading
	specialists.
Also
	on
	April 	1,
	1976,
	the
	Arcadia
	Pupil
	Support
	Services
Association
	(hereinafter
	APSSA),
	filed
	with 	the
	District
	a
	request 	for
recognition
	as
	the
	exclusive
	representative
	for
	a
	unit 	consisting
of 	counselors, 	psychologists, 	nurses,
	speech
	therapists
	and
reading
	specialists.
On
	April
	12,
	1976,
	the
	District
	posted
	notices 	of
	both
requests.
On 	May
	3,
	1976,
	the
	District
	advised 	the 	Public
	Employment
Relations
	Board
	(hereinafter
	PERB,
	formerly
	known
	as 	the 	Educational
Employment
	Relations
	Board
	or
	EERB)
	that
	it
	doubted
	the 	appropriateness
of 	the
	units
	described 	in
	both
	petitions.
	The
	District
	has
	consistently
maintained
	that 	there
	is
	one
	appropriate
	unit, 	consisting 	of
	all
certificated
	employees
	except
	management,
	confidential
	and
	supervisory
employees.
On
	June 	29, 	1976,
	ATA
	petitioned
	PERB
	for
	a
	hearing 	to
determine 	th~
	appropriateness 	of
	its
	proposed
	unit.
	APSSA
	made
	a
similar 	request
	on
	July
	2, 	1976.
In
	a
	letter
	to 	the
	District
	dated 	July 	30, 	1976,
	ATA
	suggested
that
	an
	attached
	recommended
	resolution
	would
	enable 	the 	District
to 	grant
	ATA
	recognition 	while 	providing
	a 	means
	of 	resolving 	the
2
On April 1, 1976, the Arcadia Teachers Association, CTA/NEA (herein-
after ATA), filed with the District a request for recognition as the
exclusive representative for a unit consisting of all certificated
employees excluding management, confidential and supervisory
employees, high school counselors, junior high counselors,
elementary counselors, psychologists, nurses, speech therapists
and reading specialists.
Also on April 1, 1976, the Arcadia Pupil Support Services
Association (hereinafter APSSA) , filed with the District a request for
recognition as the exclusive representative for a unit consisting
of counselors, psychologists, nurses, speech therapists and
reading specialists.
On April 12, 1976, the District posted notices of both
requests.
On May 3, 1976, the District advised the Public Employment
Relations Board (hereinafter PERB, formerly known as the Educational
Employment Relations Board or EERB) that it doubted the appropriateness
of the units described in both petitions. The District has consistently
maintained that there is one appropriate unit, consisting of all
certificated employees except management, confidential and supervisory
employees .
On June 29, 1976, ATA petitioned PERB for a hearing to
determine the appropriateness of its proposed unit. APSSA made a
similar request on July 2, 1976.
In a letter to the District dated July 30, 1976, ATA suggested
that an attached recommended resolution would enable the District
to grant ATA recognition while providing a means of resolving the
2

dispute
	regarding 	the 	appropriateness 	of 	the
	units
	proposed
	by
	ATA
and
	APSSA.
	This
	recommended
	resolution
	provided
	that
	the
	District
would
	recognize
	ATA
	as 	the
	exclusive
	representative
	for 	the
contract
	certificated
	employees
	in 	the
	unit,
	including
	classroom
teachers,
	librarians
	and
	temporary
	teachers,
	and
	excluding
	certain
specified
	employees.
1 The
	resolution 	further
	provided
	that
	ATA
and
	the
	District
	agreed
	to
	jointly 	petition
	PERB
	for
	a
	unit
clarification
	hearing
	to
	determine
	if
	counselors,
	psychologists,
nurses,
	speech
	therapists
	and
	reading
	specialists
	should
	be
included 	in 	the
	unit
	with 	classroom
	teachers,
	librarians
	and
temporary
	teachers.
During
	its
	regular
	meeting
	on
	August
	2, 	1976,
	the
	District's
Board
	of
	Education,
	citing
	PERB's
	July
	6,
	1976
	resolution
regarding
	unit
	deterrnination;
2
voted
	to
	recognize
	ATA
	as 	the
1 The
	exclusions 	are: 	superintendent, 	associate 	super-
intendent;
	assistant
	superintendent,
	elementary 	education
	and
personnel;
	assistant
	superintendent, 	business
	services,
instructional 	consultant; 	instructional 	materials 	consultant;
elementary 	curriculum
	and
	MGM
	coordinator; 	special 	services
consultant;
	district
	librarian;
	school
	principals; 	assistant
school
	principals; 	director
	of
	child 	welfare
	and
	attendance;
director 	of 	accounting
	and
	budgeting;
	director
	of 	purchasing;
director 	of
	food
	services; 	director
	of 	operations; 	director 	of
maintenance;
	director
	of 	transportation;
	district
	music
coordinator; 	day-to-day
	substitutes;
	non-contract
	summer
	school
and
	extra
	curriculum 	employees;
	and
	non-contract 	hourly 	employees.
2
EERB
	Resolution
	No.
	6, 	adopted
	on
	July 	6, 	1976,
	states:
"Petitions
	for 	changes 	in 	unit 	determinations 	pursuant 	toSection 	354l(e) 	of 	the
	Act
	will
	be
	entertained
	by
	theEducational
	Employment	
Relations	
Board 	under
	the 	following
circumstances:
1.	
Where 	both
	parties 	jointly 	file
	the 	petition; 	or2. 	Where
	there 	has 	been 	a 	change 	in 	the 	circumstances 	which
existed 	at 	the 	time 	of 	the 	initial 	unit 	determination."
3
dispute regarding the appropriateness of the units proposed by ATA
and APSSA. This recommended resolution provided that the District
would recognize ATA as the exclusive representative for the
contract certificated employees in the unit, including classroom
teachers, librarians and temporary teachers, and excluding certain
specified employees. The resolution further provided that ATA
and the District agreed to jointly petition PERB for a unit
clarification hearing to determine if counselors, psychologists,
nurses, speech therapists and reading specialists should be
included in the unit with classroom teachers, librarians and
temporary teachers.
During its regular meeting on August 2, 1976, the District's
Board of Education, citing PERB's July 6, 1976 resolution
regarding unit determination, voted to recognize ATA as the
1 The exclusions are: superintendent, associate super-
intendent; assistant superintendent, elementary education and
personnel; assistant superintendent, business services,
instructional consultant; instructional materials consultant;
elementary curriculum and MGM coordinator; special services
consultant; district librarian; school principals; assistant
school principals; director of child welfare and attendance;
director of accounting and budgeting; director of purchasing;
director of food services; director of operations; director of
maintenance; director of transportation; district music
coordinator ; day-to-day substitutes; non-contract summer school
and extra curriculum employees; and non-contract hourly employees.
2 EERB Resolution No. 6, adopted on July 6, 1976, states:
"Petitions for changes in unit determinations pursuant to
Section 3541 (e) of the Act will be entertained by the
Educational Employment Relations Board under the following
circumstances :
1. 	Where both parties jointly file the petition; or
. Where there has been a change in the circumstances which
existed at the time of the initial unit determination."

exclusive
	representative
	and
	to
	continue
	to
	seek
	a 	PERB
determination 	of 	the 	appropriateness 	of
	APSSA's
	proposed
	unit,
	in
accordance 	with
	the
	July
	30,
	1976
	ATA
	letter.
In
	a
	letter
	dated
	August
	3,
	1976,
	the
	District, 	citing
	PERB's
July
	6,
	1976
	resolution,
	advised 	the
	PERB
	Regional
	Office 	of 	the
Board
	of 	Education's
	August
	2,
	1976
	action; 	petitioned
	PERB
	for
	a
unit
	clarification
	to
	determine
	whether
	counselors,
	psychologists,
nurses,
	speech
	therapists
	and
	reading
	specialists
	should
	be
included
	in 	the
	unit
	with 	the
	teachers;
	stated 	that
	it
	continued
to
	doubt
	the
	appropriateness 	of 	the
	unit
	requested
	by
	APSSA;
	and
indicated
	that
	it
	did 	not
	desire
	a
	representation
	election.
	This
letter
	included
	a
	copy
	of 	the
	Board
	of 	Education's
	August
	2,
	1976
motion
	and
	ATA's
	July
	30,
	1976
	letter
	(including 	the
	&ttached
recommended
	resolution).
In
	a
	letter
	dated
	August 	26,
	1976
	to
	the
	Board
	of 	Education,
APSSA
	objected 	to 	the
	District's
	August
	2,
	1976
	action
	on
	the
basis 	that
	PERB 1 s
	July
	6,
	1976
	resolution 	required 	the
	mutual
consent 	of
	all
	parties
	involved
	and
	APSSA
	had
	not
	been
	consulted.
This
	letter
	also 	indicated 	that
	APSSA
	would 	be
	willing 	to
	meet
with 	the
	District
	and
	ATA
	to 	attempt 	to 	reach
	an
	interim
	agreement
of
	mutual 	consent.
On
	September 	30, 	1976,
	the
	District
	and
	ATA
	jointly 	filed
	with
the
	PERB
	Regional 	Office
	a
	petition
	for 	unit
	clarification,
seeking
	a
	determination 	whether
	counselors, 	psychologists, 	nurses,
speech
	therapists
	and
	reading
	specialists
	should 	be 	included 	in
4
exclusive representative and to continue to seek a PERB
determination of the appropriateness of APSSA's proposed unit, in
accordance with the July 30, 1976 ATA letter.
In a letter dated August 3, 1976, the District, citing PERB's
July 6, 1976 resolution, advised the PERB Regional Office of the
Board of Education's August 2, 1976 action; petitioned PERB for a
unit clarification to determine whether counselors, psychologists,
nurses, speech therapists and reading specialists should be
included in the unit with the teachers; stated that it continued
to doubt the appropriateness of the unit requested by APSSA; and
indicated that it did not desire a representation election. This
letter included a copy of the Board of Education's August 2, 1976
motion and ATA's July 30, 1976 letter (including the attached
recommended resolution) .
In a letter dated August 26, 1976 to the Board of Education,
APSSA objected to the District's August 2, 1976 action on the
basis that PERB's July 6, 1976 resolution required the mutual
consent of all parties involved and APSSA had not been consulted.
This letter also indicated that APSSA would be willing to meet
with the District and ATA to attempt to reach an interim agreement
of mutual consent.
On September 30, 1976, the District and ATA jointly filed with
the PERB Regional Office a petition for unit clarification,
seeking a determination whether counselors, psychologists, nurses,
speech therapists and reading specialists should be included in

the
	established
	unit.
	The
	established 	unit
	as
	described 	in
	this
petition 	is
	the
	same
	unit
	described
	in
	ATA's
	July
	30,
	1976
recommended
	resolution,
	except
	that
	the
	director
	of
	data
processing
	is 	listed
	as
	an
	additional
	exclusion 	in 	the
	petition
for
	unit
	clarification.
This
	matter
	was
	heard
	by
	Hearing
	Officer
	Jim
	Romo
	on 	March
	21
and
	30, 	1977,
	in 	Arcadia,
	California.
At
	the 	hearing
	APSSA
	initially
	moved
	to
	set
	aside 	the 	hearing
on
	the
	basis
	that
	a
	hearing
	on
	the 	appropriateness 	of 	the
	unit
petitioned
	for
	by
	APSSA
	was
	out 	of 	order 	since
	the
	District
	had
previously
	recognized
	ATA
	as 	the
	exclusive
	representative 	of 	the
other
	employees
	not 	covered
	in
	APSSA's
	petition.
	In
	the
alternative,
	APSSA
	moved
	that
	if
	a
	hearing
	was
	to
	be
	held
	on
	the
appropriateness 	of 	the
	unit
	proposed
	by
	APSSA,
	then
	ATA
	should
	be
dismissed 	as
	a
	party 	to 	the 	hearing.
	Hearing
	Officer
	Romo
	denied
both 	motions.
At
	the
	start
	of 	the
	second 	day
	of 	hearing,
	APSSA
	indicated
agreement
	that
	the 	proceeding
	was
	properly
	classified
	as
	a
	unit
clarification
	hearing.
	It
	maintained,
	however,
	that
	when
	the
District
	recognized
	ATA
	as
	exclusive 	representative 	for 	the
teachers,
	it
	in 	essence
	established
	two
	separate 	units;
	and
whereas
	APSSA
	and
	the
	District
	had
	held 	discussions
	and
negotiations
	as
	well, 	there
	was 	no
	reason 	to 	collapse 	these
	two
presently 	separate 	units 	into
	one.
5
the established unit. The established unit as described in this
petition is the same unit described in ATA's July 30, 1976
recommended resolution, except that the director of data
processing is listed as an additional exclusion in the petition
for unit clarification.
This matter was heard by Hearing Officer Jim Romo on March 21
and 30, 1977, in Arcadia, California.
At the hearing APSSA initially moved to set aside the hearing
on the basis that a hearing on the appropriateness of the unit
petitioned for by APSSA was out of order since the District had
previously recognized ATA as the exclusive representative of the
other employees not covered in APSSA's petition. In the
alternative, APSSA moved that if a hearing was to be held on the
appropriateness of the unit proposed by APSSA, then ATA should be
dismissed as a party to the hearing. Hearing Officer Romo denied
both motions.
At the start of the second day of hearing, APSSA indicated
agreement that the proceeding was properly classified as a unit
clarification hearing. It maintained, however, that when the
District recognized ATA as exclusive representative for the
teachers, it in essence established two separate units; and
whereas APSSA and the District had held discussions and
negotiations as well, there was no reason to collapse these two
presently separate units into one.
5

During
	the 	hearing 	the
	District
	moved
	for
	"judgment
	on
	the
pleadings"
	on
	the
	basis
	that
	the
	facts
	in
	this
	matter 	did 	not
differ
	from
	those
	set
	out 	in
	Grossmont
	Union 	High
	School
	District,
EERB
	Decision
	No.
	11
	(March
	9,
	1977),
	in
	which
	the
	Board
	included
pupil 	services
	employees
	in 	the
	same
	unit
	with
	teachers.
	Hearing
Officer
	Romo
	deferred 	ruling
	on
	this
	motion. 	This
	motion
	is
hereby
	denied.
ISSUE
The
	issue
	is
	whether
	counselors, 	psychologists, 	nurses,
	speech
therapists
	and
	reading
	specialists
	should
	be
	included
	in 	the
	same
negotiating 	unit
	as
	teachers,
	or 	whether
	they 	should
	be
	placed
in
	a
	separate 	negotiating
	unit.
DISCUSSION
Counselors, 	psychologists
	and
	nurses 	are
	classified
	by
Education
	Code	
Section 	33150(3) 	as
	"pupil 	services
	employees."
The
	decisions
	rendered
	by
	the
	Board
	itself
	have
	consistently
	held
that 	pupil 	services
	employees
	should
	be
	placed 	in 	the
	same
negotiating 	unit
	as
	regular
	classroom 	teachers.
3
Speech
3
See 	Los
	Angeles 	Unified 	School
	District,
	EERB
	Decision
No.
	5,
	November
	24, 	1976;
	Grossmont 	Union 	High
	School
	District,
EERB
	Decision
	No.
	11,
	March
	9, 	1977;
	Oakland 	Un1f1ed 	School
District,
	EERB
	Decision
	No.
	15,
	March 	28, 	1977; 	Pleasanton
	Joint
Elementary 	School
	District,
	EERB
	Decision
	No. 	24, 	September
	12,
1977; 	Placer
	Union 	High 	School
	District,
	EERB
	Decision
	No.
	25,September
	12, 	1977; 	Washington 	Unified 	School
	District,
	EERB
Decision
	No. 	27, 	September 	14, 	1977; 	and 	Paramount 	Unified 	School
District,
	EERB
	Decision
	No. 	33, 	October 	7, 	1977.
6
During the hearing the District moved for "judgment on the
pleadings" on the basis that the facts in this matter did not
differ from those set out in Grossmont Union High School District,
EERB Decision No. 11 (March 9, 1977) , in which the Board included
pupil services employees in the same unit with teachers. Hearing
Officer Romo deferred ruling on this motion. This motion is
hereby denied.
ISSUE
The issue is whether counselors, psychologists, nurses, speech
therapists and reading specialists should be included in the same
negotiating unit as teachers, or whether they should be placed
in a separate negotiating unit.
DISCUSSION
Counselors, psychologists and nurses are classified by
Education Code Section 33150 (3) as "pupil services employees."
The decisions rendered by the Board itself have consistently held
that pupil services employees should be placed in the same
negotiating unit as regular classroom teachers. 	Speech
3 See Los Angeles Unified School District, EERB Decision
No. 5, November 24, 1976; Grossmont Union High School District,
EERB Decision No. 11, March 9, 1977; Oakland Unified School
District, EERB Decision No. 15, March 28, 1977; Pleasanton Joint
Elementary School District, EERB Decision No. 24, September 12,
1977; Placer Union High School District, EERB Decision No. 25,
September 12, 1977; Washington Unified School District, EERB
Decision No. 27, September 14, 1977; and Paramount Unified School
District, EERB Decision No. 33, October 7, 1977.
6

therapists
	and
	reading
	specialists
	are
	not
	pupil 	services
employees,
	but
	like
	such
	employees
	they
	work
	with
	teachers
	as 	well
as
	students 	in
	the
	overall
	educational
	development
	of
	students
outside
	of
	a
	typical
	classroom
	setting.
Nevertheless,
	for 	the
	reasons
	set
	out
	below,
	it
	is
	found
	that
the 	circumstances 	of
	this
	case 	warrant
	a
	conclusion
	that
	a
	separate
unit
	is
	also 	appropriate,
	and
	that
	the
	unit
	placement
	of
counselors, 	psychologists, 	nurses,
	speech
	therapists
	and
	reading
specialists
	should
	be
	determined
	by 	a
	vote
	of 	these
	employees
themselves.
The
	rights
	guaranteed 	by	
the 	Educational
	Employment
	Relations
	Act
(hereinafter
	EERA)
Under
	the
	statutory
	and
	regulatory
	scheme,
	an 	employee
organization 	has,
	among
	others,
	the 	following
	rights:
1.
	It	
may	
file
	a
	request 	for 	recognition
	and	
become	
the
exclusive 	representative
	of
	a
	negotiating 	unit
	if
	(1)	
the 	request
is
	accompanied
	by
	proof 	of
	at 	least
	majority 	support	
for	
the
organization;
	(2) 	no
	other
	employee
	organization
	has
	filed
	a
	timely
intervention	
for	
the
	same
	or
	an
	overlapping
	unit;
	and 	(3)
	the 	public
school
	employer	
desires 	to 	grant	
voluntary
	recognition.
2.
	It	
may	
file
	an
	intervention	
for 	the	
same
	or
an
	overlapping
unit 	described 	in
	a	
request 	for 	recognition	
if
	such
	intervention 	is
accompanied 	by
	at 	least	
30
	percent	
support 	for 	the 	organization.
4
4
See 	Section 	3544.l(b)	
and 	PERB	
Regulation 	33070.
7
therapists and reading specialists are not pupil services
employees, but like such employees they work with teachers as well
as students in the overall educational development of students
outside of a typical classroom setting.
Nevertheless, for the reasons set out below, it is found that
the circumstances of this case warrant a conclusion that a separate
unit is also appropriate, and that the unit placement of
counselors, psychologists, nurses, speech therapists and reading
specialists should be determined by a vote of these employees
themselves.
The rights guaranteed by the Educational Employment Relations Act
(hereinafter EERA)
Under the statutory and regulatory scheme, an employee
organization has, among others, the following rights:
1. It may file a request for recognition and become the
exclusive representative of a negotiating unit if (1) the request
is accompanied by proof of at least majority support for the
organization; (2) no other employee organization has filed a timely
intervention for the same or an overlapping unit; and (3) the public
school employer desires to grant voluntary recognition.
2. It may file an intervention for the same or an overlapping
unit described in a request for recognition if such intervention is
accompanied by at least 30 percent support for the organization."
4 See Section 3544. 1(b) and PERB Regulation 33070.
7

3. 	If 	it 	has 	filed 	a 	request 	for 	re~ognition 	or 	an
intervention, 	it 	may 	file 	a 	petition 	with 	the 	PERB 	to 	resolve 	a
dispute 	concerning 	the 	appropriate 	negotiating 	unit. 5
4. 	If 	it 	is 	a 	party 	to 	a 	unit 	determination 	hearing, 	its
representative 	may 	appear 	at 	the 	hearing, 	call, 	examine 	and
cross-examine 	witnesses, 	introduce 	documentary 	and 	other
evidence 	on 	the 	issues, 6 make 	oral 	argument 	and 	file 	a 	written
brief. 7
5. 	If 	it 	was 	a 	party 	to 	the 	hearing, 	and 	the 	decision 	directs
an 	election, 	it 	may 	appear 	on 	the 	ballot 	if 	it 	can 	demonstrate 	30
percent 	proof 	of 	support 	in 	the 	unit 	found 	to 	be 	appropriate. 8
APSSA, 	desiring 	to 	represent 	counselors, 	psychologists,
nurses, 	speech 	therapists 	and 	reading 	specialists, 	complied 	with
the 	PERB 	rules 	and 	regulations 	in 	filing 	a 	request 	for 	recognition
and 	later 	a 	petition 	for 	a 	unit 	determination 	hearing. 	There 	was
not~hing 	more 	at 	that 	point 	in 	time 	which 	it 	could 	have 	done 	to
protect 	its 	right 	to 	become 	the 	exclusive 	representative 	for 	these
employees.
Yet, 	if 	this 	decision 	places 	the 	counselors, 	psychologists,
nurses, 	speech 	therapists 	and 	reading 	specialists 	in 	the 	teacher
5 See 	Sections 	3544.5(b) 	and 	(c) 	of 	the 	EERA 	and 	PERB
Regulation 	33230.
6 See 	PERB 	Regulation 	32180.
7 See 	PERB 	Regulation 	33360.
8 See 	PERB 	Regulation 	33440(e).
8
3. 	If it has filed a request for recognition or an
intervention, it may file a petition with the PERB to resolve a
dispute concerning the appropriate negotiating unit.
4. If it is a party to a unit determination hearing, its
representative may appear at the hearing, call, examine and
cross-examine witnesses, introduce documentary and other
evidence on the issues, 	6 make oral argument and file a written
brief. '
5 . 	If it was a party to the hearing, and the decision directs
an election, it may appear on the ballot if it can demonstrate 30
percent proof of support in the unit found to be appropriate."
APSSA, desiring to represent counselors, psychologists,
nurses, speech therapists and reading specialists, complied with
the PERB rules and regulations in filing a request for recognition
and later a petition for a unit determination hearing. 	There was
nothing more at that point in time which it could have done to
protect its right to become the exclusive representative for these
employees.
Yet, if this decision places the counselors, psychologists,
nurses, speech therapists and reading specialists in the teacher
5 See Sections 3544.5 (b) and (c) of the EERA and PERB
Regulation 33230.
6 See PERB Regulation 32180.
7 See PERB Regulation 33360.
See PERB Regulation 33440(e) .
8

unit 	recognized 	by 	the 	District, 	the 	result 	will 	be 	that 	APSSA will
have 	been 	denied 	one 	of 	its 	important 	rights 	-- 	viz., 	the
opportunity 	to 	establish 	a 	showing 	of 	interest 	to 	appear 	on 	the
ballot 	in 	an 	appropriate 	unit.
Perhaps 	it might 	be 	argued 	that 	it 	was 	similar 	to 	mere 	"harmless
error" 	for 	the 	District 	to 	recognize ATA 	as 	exclusive 	representative
and 	then 	to 	petition, 	with ATA, 	for 	a 	unit 	clarification 	hearing.'
After 	all, 	only 	33 	of 	the 	approximately 	435 	certificated 	employees
are 	counselors, 	psychologists, 	nurses, 	speech 	therapists 	or 	reading
specialists, 	whereas 	ATA's 	request 	for 	recognition 	presumably 	was
supported 	by 	at 	least 	approximately 	218 	employees. 9
It 	may 	appear 	to 	be 	harmless 	in 	this 	case. 	However, 	the
situation 	could 	have 	just 	as 	easily 	been 	reversed. 	Hypothetically,
the 	District 	could 	have 	recognized 	APSSA 	as 	the 	exclusive 	repre-
sentative 	of 	the 	counselors, 	psychologists, 	nurses, 	speech
therapists 	and 	reading 	specialists; 	then 	the 	District 	and 	APSSA
could 	have 	petitioned 	PERB 	for 	a 	unit 	clarification 	hearing; 	and
then 	the 	District 	and 	APSSA 	could 	have 	entered 	into 	a 	three-year
written 	agreement. 10 Should 	it 	then 	be 	found 	that 	a 	single 	unit
9 ATA's 	request 	for 	recognition 	indicates 	that 	there 	were
324 	authorization 	signatures 	supporting 	the 	request.
lO 	See 	Section 	3540.l(h) 	of 	the 	EERA. 	The 	hearing 	officer
takes 	official 	notice 	of 	the 	written 	agreement 	executed 	by 	ATA
and 	the 	District 	on 	August 	1, 	1977 	and 	which 	is 	effective 	from
August 	1, 	1977 	through 	June 	30, 	1980.
9
unit recognized by the District, the result will be that APSSA will
have been denied one of its important rights -- viz. , the
opportunity to establish a showing of interest to appear on the
ballot in an appropriate unit.
Perhaps it might be argued that it was similar to mere "harmless
error" for the District to recognize ATA as exclusive representative
and then to petition, with ATA, for a unit clarification hearing.
After all, only 33 of the approximately 435 certificated employees
are counselors, psychologists, nurses, speech therapists or reading
specialists, whereas ATA's request for recognition presumably was
supported by at least approximately 218 employees.
It may appear to be harmless in this case. However, the
situation could have just as easily been reversed. Hypothetically,
the District could have recognized APSSA as the exclusive repre-
sentative of the counselors, psychologists, nurses, speech
therapists and reading specialists; then the District and APSSA
could have petitioned PERB for a unit clarification hearing; and
then the District and APSSA could have entered into a three-year
written agreement . to 	Should it then be found that a single unit
9 	ATA's request for recognition indicates that there were
324 authorization signatures supporting the request.
10 See Section 3540.1(h) of the EERA. The hearing officer
takes official notice of the written agreement executed by ATA
and the District on August 1, 1977 and which is effective from
August 1, 1977 through June 30, 1980.
9

is
	appropriate?
	rf
	so,
	then
	ATA
	would
	have
	to 	wait
	until
	120
	days
prior
	to 	the
	expiration
	of
	the
	written
	agreement
	in 	order 	to
initiate
	a
	decertification
	proceeding
	to
	become
	the
	exclusive
represen
t
at1ve.
11	
.
Hypothetically
	or
	in
	actuality, 	this
	kind
	of 	procedural
arrangement
	is
	difficult
	to
	accept
	because
	of
	its
	effect
	in
denying
	voting
	and
	election 	rights
	of
	employees
	and 	employee
organizations.
The
	meaning
	of
	EERB
	Resolution
	No. 	6
This
	resolution 	(set
	out 	in
	full
	in 	footnote
	2, 	supra)
provides
	that
	a
	petition
	for
	a
	change
	in
	unit
	determination
	will
be
	entertained
	by
	the
	PERB
	where
	both
	parties 	jointly
	file
	the
petition
	or
	where
	there
	has 	been
	a
	change
	in 	the 	circumstances
which
	existed
	at
	the
	time
	of 	the
	initial
	unit 	determination
Certainly,
	the
	basis 	of 	the
	filing
	of 	the
	petition
	for
	unit
clarification 	is
	not
	that 	there
	was 	a
	change
	of 	circumstances.
There
	is
	no
	evidence 	of
	a
	change
	of 	circumstances 	in 	the
	work
force 	since 	the 	date 	of 	voluntary 	recognition.
The
	basis 	for 	the
	unit
	clarification 	petition 	is
	apparently
that
	the
	District
	and
	ATA
	are 	the 	only
	parties
	who
	were
	involved
with 	the 	teacher
	unit,
	and,
	therefore, 	the 	only
	parties
	who
	were
required 	to 	join 	in 	the
	filing
	of 	the
	petition. 	If 	this
11 See
	Section 	3544.7(b) 	of 	the
	EERA.
10
is appropriate? If so, then ATA would have to wait until 120 days
prior to the expiration of the written agreement in order to
initiate a decertification proceeding to become the exclusive
representative. If
Hypothetically or in actuality, this kind of procedural
arrangement is difficult to accept because of its effect in
denying voting and election rights of employees and employee
organizations .
The meaning of EERB Resolution No. 6
This resolution (set out in full in footnote 2, supra)
provides that a petition for a change in unit determination will
be entertained by the PERB where both parties jointly file the
petition or where there has been a change in the circumstances
which existed at the time of the initial unit determination
Certainly, the basis of the filing of the petition for unit
clarification is not that there was a change of circumstances.
There is no evidence of a change of circumstances in the work
force since the date of voluntary recognition.
The basis for the unit clarification petition is apparently
that the District and ATA are the only parties who were involved
with the teacher unit, and, therefore, the only parties who were
required to join in the filing of the petition. If this
1 See Section 3544.7 (b) of the EERA.
10

interpretation 	is
	correct,
	then 	the
	arrangement
	between
	the
District
	and
	ATA
	would 	be
	technically
	proper.
	Such 	an
interpretation,
	however,
	is
	simply
	not
	reasonable.
Unit
	clarification
	hearings 	involve
	a
	situation
	where
there
	is
	only
	one 	employee
	organization
	(i.e.,
	the
	exclusive
representative)
	seeking
	to
	include 	within 	the
	unit
	job
	classifi-
cations
	the
	status
	of
	which
	is
	uncertain. 	Certainly,
	it
	would
	be
unreasonable 	to
	apply
	EERB
	Resolution
	No.
	6
	in
	a
	manner
	which
would
	deprive
	employees
	of
	their 	right
	to
	participate
	in 	the
selection
	of
	an
	exclusive
	representative
	and
	employee
organizations
	of
	their
	opportunity 	to
	appear
	on
	the
	ballot.
Based
	upon
	the 	foregoing
	discussion,
	while 	the
	employer 	and
ATA
	contend
	that
	the
	unit
	clarification petition 	is
	appropriate,
such
	a
	proceeding
	limited
	to
	clarification
	of
	the
	existing 	unit
would 	be
	clearly
	inappropriate
	because
	there
	is
	in 	fact
	an
	out-
standing
	petition
	concerning
	representation
	(see
	LA-
R-278)
	covering
the
	same
	pupil 	services
	employees
	sought 	to
	be 	added
	to 	the
	existing
unit.
	Nevertheless 	because
	a
	complete
	record
	has 	been
	made,
	in
lieu of
	dismissing 	the
	unit 	clarification 	petition
	as 	being
inappropriate, 	the
	unit 	clarification
	proceeding
	will
	be
	considered
as 	having 	been
	necessarily 	consolidated with 	the 	outstanding
representation 	petition.
	This
	consolidation
	is
	required
	so
	that
all
	necessary
	parties
	can
	participate 	in 	the 	disposition 	of 	the
interrelated 	issues 	herein.
This 	procedure
	is
	used 	only 	in 	extraordinary 	circumstances 	to
avoid 	the 	potentially 	inequitable 	results 	that 	the 	interpretation
11
interpretation is correct, then the arrangement between the
District and ATA would be technically proper. Such an
interpretation, however, is simply not reasonable.
Unit clarification hearings involve a situation where
there is only one employee organization (i.e. , the exclusive
representative) seeking to include within the unit job classifi-
cations the status of which is uncertain. Certainly, it would be
unreasonable to apply EERB Resolution No. 6 in a manner which
would deprive employees of their right to participate in the
selection of an exclusive representative and employee
organizations of their opportunity to appear on the ballot.
Based upon the foregoing discussion, while the employer and
ATA contend that the unit clarification petition is appropriate,
such a proceeding limited to clarification of the existing unit
would be clearly inappropriate because there is in fact an out-
standing petition concerning representation (see LA- R-278) covering
the same pupil services employees sought to be added to the existing
unit. Nevertheless because a complete record has been made, in
lieu of dismissing the unit clarification petition as being
inappropriate, the unit clarification proceeding will be considered
as having been necessarily consolidated with the outstanding
representation petition. 	This consolidation is required so that
all necessary parties can participate in the disposition of the
interrelated issues herein.
This procedure is used only in extraordinary circumstances to
avoid the potentially inequitable results that the interpretation
11

of
	EERB
	Resolution
	No.
	6,
	urged
	by
	the
	employer
	and
	the
	exclusive
representative 	herein,
	would
	cause.
This
	decision
	is
	not 	intended
	to
	impute 	bad
	faith
	to 	the
	District
or
	ATA,
	but
	only
	to
	stress
	the
	inequitable
	result
	of
	the
	interpretation
they
	would
	place
	on
	EERB
	Resolution
	No.
	6.
12
Criteria
	for
	unit
	determination
Section
	3545(a)
	of 	the
	EERA
	states:
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.
A
review
	of 	the 	cases
	cited
	in 	footnote
	3
	discloses 	that
	the
Board 	has
	relied
	on
	the
	similarities
	between
	pupil 	services
employees
	and
	regular-classroom 	teachers 	in 	reaching 	the
conclusion
	that
	they
	all
	belonged
	in 	the
	same
	unit.
	They
	were
	all
required 	to 	attend 	faculty
	and
	staff
	meetings.
	They
	received 	the
same
	fringe 	benefits.
	They 	were 	compensated
	in 	accordance 	with
the
	same
	salary
	schedule, 	with
	pupil 	services
	employees
	receiving
pro-rata 	greater
	pay
	for
	extra
	days 	worked. 	For
	the
	most
	part
they
	were
	supervised
	by
	the 	school
	principal.
	They 	were
	evaluated
under
	closely 	related
	systems 	under
	the
	Stull
	Act. 	Their
credential
	requirements, 	although
	different,
	were
	substantially
similar.
12
The
	District
	advised
	PERB
	in 	writing 	of
	its
	August 	2,1976
	action 	in 	granting 	recognition 	to
	ATA,
	attaching 	to 	this
letter
	a
	copy
	of
	ATA's
	July
	30, 	1976
	letter
	and 	accompanying
resolution.
	The
	District's 	notice 	to
	PERB
	in 	this
	manner
	issupportive 	of
	a
	finding 	that 	there
	was 	no 	bad
	faith.
	The
	hearing
officer 	also 	takes 	official 	notice 	of
	an
	unfair 	practice 	charge
filed
	by 	APSSA
	against 	the 	District
	(LA-CE-29)
	in 	which 	there 	are
allegations 	which,
	if 	proved, 	would 	support
	a
	conclusion 	that 	the
District 	acted 	in 	bad
	faith.
	However, 	the 	hearing 	on 	that 	charge
is 	being 	held 	in 	abeyance 	pending 	the 	decision 	of 	this 	hearing.
12
of EERB Resolution No. 6, urged by the employer and the exclusive
representative herein, would cause.
This decision is not intended to impute bad faith to the District
or ATA, but only to stress the inequitable result of the interpretation
they would place on EERB Resolution No. 6. 12
Criteria for unit determination
Section 3545 (a) of the EERA states:
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.
A review of the cases cited in footnote 3 discloses that the
Board has relied on the similarities between pupil services
employees and regular classroom teachers in reaching the
conclusion that they all belonged in the same unit. They were all
required to attend faculty and staff meetings. They received the
same fringe benefits. They were compensated in accordance with
the same salary schedule, with pupil services employees receiving
pro-rata greater pay for extra days worked. For the most part
they were supervised by the school principal. They were evaluated
under closely related systems under the Stull Act. Their
credential requirements, although different, were substantially
similar .
12 The District advised PERB in writing of its August 2,
1976 action in granting recognition to ATA, attaching to this
letter a copy of ATA's July 30, 1976 letter and accompanying
resolution. The District's notice to PERB in this manner is
supportive of a finding that there was no bad faith. 	The hearing
officer also takes official notice of an unfair practice charge
filed by APSSA against the District (LA-CE-29) in which there are
allegations which, if proved, would support a conclusion that the
District acted in bad faith. However, the hearing on that charge
is being held in abeyance pending the decision of this hearing.
12

An
	examination
	of 	the
	facts
	in
	this
	case
	would
	reveal
essentially
	the
	same
	similarities.
	Certainly,
	a
	comprehensive
unit
	of
	regular
	teachers,
	counselors, 	psychologists, 	nurses,
speech
	therapists
	and
	reading
	specialists
	would,
	based
	on
	the
Board's 	precedent,
	be
	the 	presumptively
	appropriate
	unit.
Yet, 	the
	Board
	has
	specifically
	rejected
	the
	strict
application
	of
	either
	"an"
	appropriate 	unit
	or
	a
	"most"
appropriate 	unit
	test
	as 	being
	inconsistent
	with
	a
	fair
	and
rational
	application
	of 	the
	unit
	criteria.
13
Rather, 	the
	Board
has 	been
	concerned 	with
	striking
	the
	proper 	balance
	between
	the
harmful
	effects
	on 	an
	employer
	of 	excessive
	unit
	fragmentation
	and
the
	protection
	of 	the
	employees'
	right
	to
	effective 	representation
in 	appropriate
	units.
14
It
	is
	not 	unreasonable
	to
	assume
	that
the
	Board 	would
	apply
	this 	flexible
	approach
	in 	order 	to
	protect
other
	important
	rights
	of
	employees
	and 	employee
	organizations.
This
	flexible
	approach
	would
	permit
	a
	finding
	that
	a
	separate
unit
	of 	counselors, 	psychologists, 	nurses,
	speech
	therapists
	and
reading
	specialists 	is
	appropriate.
	The
	essence
	of
	the 	Board's
decisions 	placing 	pupil 	services
	employees
	in 	the
	same
	unit
	as
regular 	teachers
	is
	not 	the
	absence
	of
	a
	community
	of
	interest
among
	the
	pupil 	services
	employees
	themselves, 	but
	rather
	its
placement
	of
	a
	higher
	priority
	on
	the
	additional 	interests
	which
they 	have
	in
	common
	with 	regular 	school 	teachers.
	As
	the
	Board
stated 	in
	Grossmont,
	at
	7-8:
Therefore, 	the 	record 	as
	a
	whole
	establishes 	that
teachers
	and
	the 	four 	disputed 	classifications
13 See 	Antioch 	Unified 	School
	District,
	EERB
	Decision 	No. 	37,
at 	pp. 	5-8, 	November 	7, 	1977.
14 See 	San 	Diego, 	at 	p. 	8, 	and 	Antioch, 	at 	p. 	7.
13
An examination of the facts in this case would reveal
essentially the same similarities. Certainly, a comprehensive
unit of regular teachers, counselors, psychologists, nurses,
speech therapists and reading specialists would, based on the
Board's precedent, be the presumptively appropriate unit.
Yet, the Board has specifically rejected the strict
application of either "an" appropriate unit or a "most"
appropriate unit test as being inconsistent with a fair and
Rather , the Board	rational application of the unit criteria. Is
has been concerned with striking the proper balance between the
harmful effects on an employer of excessive unit fragmentation and
the protection of the employees' right to effective representation
in appropriate units. * It is not unreasonable to assume that
the Board would apply this flexible approach in order to protect
other important rights of employees and employee organizations.
This flexible approach would permit a finding that a separate
unit of counselors, psychologists, nurses, speech therapists and
reading specialists is appropriate. The essence of the Board's
decisions placing pupil services employees in the same unit as
regular teachers is not the absence of a community of interest
among the pupil services employees themselves, but rather its
placement of a higher priority on the additional interests which
they have in common with regular school teachers. As the Board
stated in Grossmont, at 7-8:
Therefore, the record as a whole establishes that
teachers and the four disputed classifications
13 See Antioch Unified School District, EERB Decision No. 37,
at pp. 5-8, November 7, 1977.
14 See San Diego, at p. 8, and Antioch, at p. 7.
13

(counselors,
	psychologists,
	nurses
	and
	social
workers]
	share
	common
	purposes
	and
	goals 	in
	their
mutual
	interaction
	with
	each
	other
	and
	the
community
	they
	serve.
	We
	are
	mindful
	that
	there
are
	some
	minor
	differences
	between
	teachers
	and
the
	four
	disputed
	classifications,
	such 	as
	the
length 	of
	their
	work
	day
	and
	work
	year.
	However,
we
	do
	not
	view
	these
	differences
	as
	sufficient
	to
establish
	a
	separate
	community
	of
	interest.
nurses,
	speech
	The
	fact
	remains
	that
	counselors, 	psychologists,
therapists
	and
	reading
	specialists
	do
	have
	a
	community
	of
	interest
among
	themselves
	when
	viewed
	aside
	from
	their 	relationship
	with
regular 	teachers.
	They
	are 	required
	or 	expected
	to 	attend
	faculty
meetings.
	Except
	for 	the
	psychologists,
	they
	are
	on
	the
	same
	salary
schedule.
	They
	receive 	the
	same
	fringe
	benefits.
	They
	all
	obtain
tenure.
	They
	are
	all
	subject 	to
	the
	same
	personnel
	policies.
Although
	psychologists
	and
	speech
	therapists
	are 	evaluated
	by
	the
consultant, 	special 	services,
	and
	counselors, 	nurses
	and
	reading
specialists
	are 	evaluated
	by
	the
	principal,
	they 	are
	all
	evaluated
under
	the
	same
	procedure.
	In
	addition,
	the
	involvement
	which
	all
	of
these
	employees 	have
	with
	students
	is
	outside 	the
	typical
	classroom
setting.
	Together 	they 	are
	concerned 	with 	the 	educational
of 	students 	in
	ways
	other
	than
	direct 	instruction
	in
	development
specific
	academic
	subjects.
	They 	do
	not 	assign 	grades.
	They
consult 	with 	teachers
	about 	the 	progress 	of 	the 	students 	with
	whom
have
	contact.
	Also,
	when
	one
	of 	these
	employees
	is 	absent,
	no
	they
substitute 	is 	hired 	for 	that
	employee. 	While
	these 	factors
	might
not 	in
	a
	normal
	setting
	be
	sufficient 	to
	meet
	the 	Board's
precedential 	criteria
	for
	a
	separate 	unit,
	they 	are 	sufficient 	to
meet 	the 	statutory 	criteria
	for 	an
	appropriate 	unit.
context
	The 	Board 	has 	not 	had 	occasion 	to 	examine, 	in 	the 	of
	a
unit 	determination 	proceeding, 	the 	situation 	where 	employees 	have
14
[counselors, psychologists, nurses and social
workers ] share common purposes and goals in their
mutual interaction with each other and the
community they serve. We are mindful that there
are some minor differences between teachers and
the four disputed classifications, such as the
length of their work day and work year. However,
we do not view these differences as sufficient to
establish a separate community of interest.
The fact remains that counselors, psychologists, nurses, speech
therapists and reading specialists do have a community of interest
among themselves when viewed aside from their relationship with
regular teachers. They are required or expected to attend faculty
meetings. Except for the psychologists, they are on the same salary
schedule. 	They receive the same fringe benefits. They all obtain
tenure. 	They are all subject to the same personnel policies.
Although psychologists and speech therapists are evaluated by the
consultant, special services, and counselors, nurses and reading
specialists are evaluated by the principal, they are all evaluated
under the same procedure. In addition, the involvement which all of
these employees have with students is outside the typical classroom
setting. Together they are concerned with the educational
development of students in ways other than direct instruction in
Theyspecific academic subjects. They do not assign grades.
consult with teachers about the progress of the students with whom
they have contact. Also, when one of these employees is absent, no
substitute is hired for that employee. While these factors might
not in a normal setting be sufficient to meet the Board's
precedential criteria for a separate unit, they are sufficient to
meet the statutory criteria for an appropriate unit.
The Board has not had occasion to examine, in the context of a
unit determination proceeding, the situation where employees have
14

been
	denied
	the 	opportunity 	to
	vote
	for
	an
	exclusive
	representative
and 	an 	employee
	organization,
	having 	complied
	with 	the
	rules
	and
regulations
	governing
	the
	selection
	of
	an
	exclusive
	representative,
has
	been
	denied
	the
	opportunity
	of
	qualifying
	for 	the
	ballot.
However,
	the
	National
	Labor
	Relations
	Board
	(NLRB)
	has 	under
	certain
circumstances 	placed
	a
	lesser
	emphasis
	on
	unit
	criteria
	in 	order 	to
protect
	important
	interests
	of
	employees
	and
	employee
	organizations.
In
	The
	Zia
	Company, 	108
	NLRB
	1134,
	34
	LRRM
	1133
	(1954),
	a
	union
sought
	an
	election
	and
	certification
	in
	a
	unit
	which
	not 	only 	included
the
	employees
	in 	the
	unit
	of
	which
	it
	was
	the 	exclusive
representative,
	but
	also
	included
	other
	employees
	who
	had
	previously
been
	omitted
	from
	the
	existing 	unit.
	The
	NLRB
	noted
	that
	the
	group
	of
employees 	which 	had
	been
	omitted
	from
	the
	existing 	unit
	did 	not
constitute
	an
	appropriate 	bargaining
	unit
	under
	the 	Board's
	established
precedent. 	Nevertheless, 	the
	NLRB
	ruled
	that
	these
	employees
	should
not
	be
	placed
	into 	the
	established
	bargaining 	unit
	without
	first
	being
extended 	the 	opportunity 	to
	vote 	as
	to
	whether
	or 	not 	they
	desired 	to
be
	represented
	by
	the 	current
	bargaining 	agent 	of 	the
	existing
unit.
15
In
	Felix
	Half	
&	
Brother, 	Inc.
	132
	NLRB
	1523,
	48
	LRRM
	1528
	(1961),
the 	existing 	unit 	consisted 	of
	11
	office-clerical
	employees.
	The
exclusive 	representative 	desired 	to 	represent 	these
	11
	employees
	only,
while
	a
	competing 	union 	wished
	to 	include
	two
	additional
	employees.
The
	NLRB
	found
	that 	the 	additional
	employees 	would
	normally 	be
	placed
15
While 	The
	Zia 	Company,was
	subsequently modified
	by 	D.V.
Displays 	Corp.,
	134
	NLRB
	568,
	49
	LRRM
	1199 	(1961), 	the 	holding 	in
that 	case 	is 	not 	applicable 	to 	the 	facts 	in 	Arcadia 	Unified 	School
District. 
15
been denied the opportunity to vote for an exclusive representative
and an employee organization, having complied with the rules and
regulations governing the selection of an exclusive representative,
has been denied the opportunity of qualifying for the ballot.
However, the National Labor Relations Board (NLRB) has under certain
circumstances placed a lesser emphasis on unit criteria in order to
protect important interests of employees and employee organizations.
In The Zia Company, 108 NLRB 1134, 34 LRRM 1133 (1954) , a union
sought an election and certification in a unit which not only included
the employees in the unit of which it was the exclusive
representative, but also included other employees who had previously
been omitted from the existing unit. The NLRB noted that the group of
employees which had been omitted from the existing unit did not
constitute an appropriate bargaining unit under the Board's established
precedent. Nevertheless, the NLRB ruled that these employees should
not be placed into the established bargaining unit without first being
extended the opportunity to vote as to whether or not they desired to
be represented by the current bargaining agent of the existing
unit . 15
In Felix Half & Brother, Inc. 132 NLRB 1523, 48 LRRM 1528
the existing unit consisted of 11 office-clerical employees.
(1961) ,
The
exclusive representative desired to represent these ll employees only,
while a competing union wished to include two additional employees.
The NLRB found that the additional employees would normally be placed
15While The Zia Company was subsequently modified by D.V.
Displays Corp., 134 NLRB 568, 49 LRRM 1199 (1961) , the holding in
that case is not applicable to the facts in Arcadia Unified School
District.
15

in 	the
	established
	unit.
	However,
	the
	Board
	directed
	that
	two
elections
	be
	held
	in 	order 	to
	permit
	the
	current
	exclusive
representative
	the 	opportunity 	of
	retaining
	its
	representative
status
	as
	to 	the
	11
	employees
	in 	the
	existing 	unit.
If
	the
	NLRB
	has
	deviated
	from
	its
	established
	precedents
	in
order 	to 	afford
	employees
	an
	opportunity 	to
	select
	or
	reject
	an
exclusive
	representative
	or 	to
	allow
	an 	employee
	organization 	the
opportunity
	of
	retaining
	its
	existing 	unit
	composition, 	then
certainly
	PERB's
	flexible
	approach
	to 	unit
	determination
	emphasized
in
	Antioch 	should
	be
	applicable 	to 	the
	facts
	of
	this
	case,
	where
employees
	have 	been
	denied
	the 	opportunity 	to
	vote
	and 	an
	employee
organization
	has 	been
	denied
	the 	opportunity 	of 	qualifying 	for 	the
ballot.
Accordingly,
	under
	the 	circumstances 	of
	this
	case,
	it
	is
	found
that
	a
	separate 	unit 	of 	counselors, 	psychologists, 	nurses,
	speech
therapists
	and
	reading
	specialists 	is
	appropriate
	and
	that
	a
comprehensive
	unit 	including 	these
	employees
	and
	regular 	teachers
	is
also 	appropriate.
	The
	determination 	of 	the
	unit
	placement
	of
counselors, 	psychologists, 	nurses,
	speech
	therapists
	and
	reading
specialists 	will
	be
	determined
	by
	a
	vote 	of 	these
	employees
themselves, 	as 	described
	below.
The
	election
Under
	the 	doctrine
	long 	ago
	established	
by	
the
	NLRB
	in
	Globe
Machine 	and 	Stamping 	Co.,
	3 	NLRB
	294, 	1-A
	LRRM
	122 	(1937), 	where
16
in the established unit. However, the Board directed that two
elections be held in order to permit the current exclusive
representative the opportunity of retaining its representative
status as to the 11 employees in the existing unit.
If the NLRB has deviated from its established precedents in
order to afford employees an opportunity to select or reject an
exclusive representative or to allow an employee organization the
opportunity of retaining its existing unit composition, then
certainly PERB's flexible approach to unit determination emphasized
in Antioch should be applicable to the facts of this case, where
employees have been denied the opportunity to vote and an employee
organization has been denied the opportunity of qualifying for the
ballot.
Accordingly, under the circumstances of this case, it is found
that a separate unit of counselors, psychologists, nurses, speech
therapists and reading specialists is appropriate and that a
comprehensive unit including these employees and regular teachers is
also appropriate. The determination of the unit placement of
counselors, psychologists, nurses, speech therapists and reading
specialists will be determined by a vote of these employees
themselves, as described below.
The election
Under the doctrine long ago established by the NLRB in Globe
Machine and Stamping Co. , 3 NLRB 294, 1-A LRRM 122 (1937) , where
16

certain
	employees
	are
	found
	to
	be
	appropriate
	as
	either
	a
	unit
	of
themselves 	or 	as
	part
	of
	a
	larger
	unit,
	an
	election
	is
	held
	among
the
	employees
	and
	the
	unit
	determination
	is
	dependent
	upon
	their
selection
	of
	which
	union,
	if
	any,
	is
	to
	be
	their
	exclusive
representative.
As
	applied
	to
	the
	situation
	in
	Arcadia
	Unified
	School
	District,
the
	procedure
	and
	certification
	of
	a
	Globe-type
	self-determination
election
	would 	be
	as
	follows:
	A
voting
	group
	is
	established,
consisting
	of 	counselors, 	psychologists, 	nurses,
	speech
	therapists
and
	reading
	specialists
	(but 	not
	including
	management,
	supervisory
or
	confidential
	employees).
	Because
	of 	the
	unique
	procedural
history
	in
	this
	case
	and
	in 	order
	to 	protect 	to 	the
	fullest
	extent
possible 	the
	right
	of 	the 	unrepresented
	employees
	to
	participate
	in
the
	selection
	of
	their
	exclusive
	representative,
	if
	any, 	both
	APSSA
and
	ATA
	are
	deemed
	to
	be
	qualified 	to
	appear
	on
	the
	ballot
	and
participate
	in 	the
	election.
	If
	APSSA
	is
	selected
	as 	the 	exclusive
representative,
	then
	counselors, 	psychologists, 	nurses,
	speech
therapists
	and
	reading
	specialists 	will
	be
	represented
	by APSSA
	in
	a
unit 	separate
	from
	teachers.
	If
	ATA
	is
	chosen 	as
	the 	exclusive
representative,
	then 	the 	counselors, 	psychologists, 	nurses,
	speech
therapists
	and
	reading
	specialists 	will
	be
	considered 	to
	have
indicated 	their 	desire 	to
	be
	represented
	by
	ATA
	in 	the
	same
	unit
with 	the 	other
	certificated
	employees
	already 	represented
	by 	ATA.
17
certain employees are found to be appropriate as either a unit of
themselves or as part of a larger unit, an election is held among
the employees and the unit determination is dependent upon their
selection of which union, if any, is to be their exclusive
representative.
As applied to the situation in Arcadia Unified School District,
the procedure and certification of a Globe-type self-determination
election would be as follows: A voting group is established,
consisting of counselors, psychologists, nurses, speech therapists
and reading specialists (but not including management, supervisory
or confidential employees) . Because of the unique procedural
history in this case and in order to protect to the fullest extent
possible the right of the unrepresented employees to participate in
the selection of their exclusive representative, if any, both APSSA
and ATA are deemed to be qualified to appear on the ballot and
participate in the election. If APSSA is selected as the exclusive
representative, then counselors, psychologists, nurses, speech
therapists and reading specialists will be represented by APSSA in a
unit separate from teachers. If ATA is chosen as the exclusive
representative, then the counselors, psychologists, nurses, speech
therapists and reading specialists will be considered to have
indicated their desire to be represented by ATA in the same unit
with the other certificated employees already represented by ATA.
17

If
	the 	voting
	group
	selects
	"no
	representation,"
	then
	the
	counselors,
psychologists, 	nurses,
	speech
	therapists
	and
	reading
	specialists
	will
not
	be
	represented
	by
	an
	exclusive
	representative.
PROPOSED
	DECISION
It
	is
	the
	Proposed
	Decision
	that:
1.
	The
	voting
	group
	for 	the
	purpose
	of
	holding
	an
	election
consists
	of
	counselors, 	psychologists, 	nurses,
	speech
	therapists
	and
reading
	specialists;
	and
	excludes
	management,
	supervisory
	and
confidential
	employees.
2. 	There
	shall
	be 	an
	election
	of 	the 	voting
	group
	at
	a
	time
	and
place
	determined
	by
	the
	Regional
	Director.
3.
	If
	APSSA
	is
	selected
	by
	the 	voting 	group, 	then
	APSSA
	will
	be
the 	exclusive
	representative 	of
	a
	separate 	"pupil 	services
	employees"
unit
	(excluding
	management,
	supervisory 	or 	confidential
	employees),
for 	the 	purposes
	of
	meeting
	and
	negotiating.
4.
	If
	ATA
	is 	selected
	by
	the 	voting 	group, 	then
	ATA
	will
	be
	the
exclusive 	representative 	of
	a
	comprehensive
	certificated 	unit,
including 	counselors, 	psychologists, 	nurses,
	speech
	therapists,
reading
	specialists
	and
	those
	employees
	in 	the
	certificated
negotiating 	unit 	in
	which
	the
	District
	has
	previously 	recognized
	ATA
as 	the 	exclusive 	representative;
	and
	excluding
	management,
supervisory
	and
	confidential
	employees.
18
If the voting group selects "no representation," then the counselors,
psychologists, nurses, speech therapists and reading specialists will
not be represented by an exclusive representative.
PROPOSED DECISION
It is the Proposed Decision that:
1. The voting group for the purpose of holding an election
consists of counselors, psychologists, nurses, speech therapists and
reading specialists; and excludes management, supervisory and
confidential employees.
2. There shall be an election of the voting group at a time and
place determined by the Regional Director.
3. If APSSA is selected by the voting group, then APSSA will be
the exclusive representative of a separate "pupil services employees"
unit (excluding management, supervisory or confidential employees),
for the purposes of meeting and negotiating.
4. 	If ATA is selected by the voting group, then ATA will be the
exclusive representative of a comprehensive certificated unit,
including counselors, psychologists, nurses, speech therapists,
reading specialists and those employees in the certificated
negotiating unit in which the District has previously recognized ATA
as the exclusive representative; and excluding management,
supervisory and confidential employees.
18

5.
	If
	the 	voting
	group
	selects
	"no
	representation,"
	then 	the
counselors, 	psychologists,
	nurses,
	speech
	therapists
	and
	reading
specialists 	shall
	not
	be
	represented
	by
	an
	exclusive
	representative.
The
	parties
	have
	seven
	(7)
	calendar
	days
	from
	receipt
	of
	this
Proposed
	Decision 	in
	which
	to
	file
	exceptions 	in
	accordance
	with
PERB
	Regulation
	33380.
	If
	no
	party
	files
	timely
	exceptions,
	this
Proposed
	Decision
	will
	become
	final
	on
	March
	10,
	1978
	and
	a
	Notice
of
	Decision
	will
	issue
	from
	the
	Board.
DATED:
	February
	24,
	1978
David Schiessberg 	g
Hearing Officer
19
5 . If the voting group selects "no representation," then the
counselors, psychologists, nurses, speech therapists and reading
specialists shall not be represented by an exclusive representative.
The parties have seven (7) calendar days from receipt of this
Proposed Decision in which to file exceptions in accordance with
PERB Regulation 33380. If no party files timely exceptions, this
Proposed Decision will become final on March 10, 1978 and a Notice
of Decision will issue from the Board.
DATED: February 24, 1978
19