Modesto City Schools (PERB 0567E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MODESTO CITY 	SCHOOLS,
Employer,
and
MODESTO TEACHERS ASSOCIATION,
Employee 	Organization,
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Case 	No. 	S-R-750
PERB 	Decision 	No. 	567
April 	17, 	1986
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Appearances: 	Breon, 	Galgani, 	Godino & 	O'Donnell by Sharon M.
Keyworth 	for 	Modesto City Schools; 	Ken Burt, 	Attorney for
Modesto 	Teachers 	Association.
Before Hesse, 	Chairperson; 	Morgenstern and Burt, 	Members.
DECISION
HESSE, 	Chairperson: 	This case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by 	the 	Modesto City 	Schools 	(hereinafter 	District) 	to 	a
proposed 	decision 	of 	the 	Chief 	of 	the 	Division 	of
Representation. 	In 	the 	proposed 	decision, 	it was 	found 	that 	a
unit 	of 	all 	substitute 	teachers 	in 	the 	District 	is 	an
appropriate 	bargaining 	unit.
For 	the 	reasons 	discussed below, 	we 	reject 	the proposed
decision 	and 	remand 	the 	petition 	for 	representation 	to 	the
Chief 	of 	the 	Division 	of 	Representation, 	for 	further 	action
consistent 	with 	the 	following 	discussion.
PROCEDURAL 	HISTORY
The 	Modesto 	Teachers 	Association 	(Association) 	filed 	two
conflicting 	representational 	petitions 	on 	two 	consecutive
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days. 	On November 	3, 	1983, 	the Association requested
recognition 	as 	the 	exclusive 	representative 	for 	a 	unit 	of
substitute 	teachers who work 	one 	day or 	more 	per 	year 	in 	the
District. 	On 	the 	next 	day, 	the Association 	filed a 	unit
modification 	petition 	to 	add 	substitute 	teachers 	who 	work 	two
days 	or 	more 	per 	year 	to 	the 	regular 	certificated unit, 	which
was 	represented 	by 	the 	Association.
Initially, 	the 	District 	opposed 	the 	unit 	modification
petition. 	On November 	30, 	1983, 	the District 	filed its
Response 	to Petition 	for 	unit 	Modification. 	In 	it, 	the
District 	argued 	that 	no 	community 	of 	interest 	existed 	between
these 	groups, 	that 	the 	efficient operation of 	the District
would 	be 	impaired, 	and 	that 	a majority of 	the 	substitute
teachers 	did 	not 	support 	the 	unit 	modification.
On 	February 6, 	1984, 	the 	District 	requested 	that PERB
conduct 	an 	investigation 	to 	determine 	the 	appropriateness 	of
the 	proposed 	modifications 	to 	the 	existing 	certificated 	unit.
On March 	9, 	1984, 	the Association withdrew its unit
modification petition. 	On April 	3, 	the parties 	met with 	a
Board 	agent 	to 	discuss 	an 	election 	for 	the 	proposed 	unit 	of
substitute 	teachers. 	At 	this meeting, 	the 	District 	changed 	its
position 	and 	opposed 	a 	separate 	unit 	of 	substitutes. 	It
believed 	that 	a 	community 	of 	interest 	did 	exist 	between
substitute 	teachers 	and 	the 	regular 	classroom 	teachers. 	Thus,
it 	argued, 	substitutes 	should be 	included 	in 	the 	established
certificated 	unit.
N	
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A 	formal 	hearing was 	held 	by Board 	Agent 	Joe 	Basso 	on
September 	26, 	1984. 	After 	Basso 	resigned 	from PERB, 	the 	case
was 	reassigned 	to Janet 	Caraway, 	Chief 	of 	the 	Division 	of
Representation. 	Caraway 	issued 	a 	proposed 	decision 	on 	May 	8,
1985.
FACTS
The 	District 	employed 	approximately 	173 	substitute 	teachers
as of April 3, 	1984. 	Of the 173 	substitute teachers, 	63 were
placed 	on 	a 	preferred 	list. 	Placement 	on 	the 	list meant 	that
they were 	guaranteed 	at 	least 	one 	day's 	work 	by 	October 	31,
1984.
In 	the 	District, 	day-to-day substitute 	teachers 	generally
perform 	the 	same 	basic 	functions 	of 	the 	teachers 	whom 	they
replace 	in 	the 	classroom, 	In 	addition 	to 	teaching, 	they assign
and 	correct homework; 	prepare, 	administer 	and grade 	tests;
enter 	grades 	in 	the 	grade book; 	maintain control 	in 	the
classroom; 	and plan 	and 	coordinate 	the 	work 	of 	an 	instructional
aide when 	necessary. 	Also, 	substitute 	teachers may be 	required
to 	prepare 	bulletin 	boards 	and 	take 	bus 	and 	yard 	duty
assignments 	if 	these 	duties 	have 	been 	assigned 	to 	the 	teacher
for 	whom 	they are 	substituting. 	All 	substitute 	teachers 	and
regular 	teachers 	must 	have 	a 	B.A. 	degree 	and 	hold a 	valid
California 	teaching 	credential.
1Substitute 	teachers 	who 	have 	90 	units 	of 	university work
may 	obtain 	an 	emergency 	substitute 	teaching 	credential 	which 	is
valid 	for 	30 	days.
w
1
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In addition 	to 	the 	above 	basic work 	of 	the 	day-to-day
substitute 	teachers, 	long-term 	substitutes 	may 	supervise
students 	on 	field 	trips, 	conduct parent-teacher 	conferences,
enter 	grades 	on 	report 	cards 	and 	enter 	grades 	on 	student
cumulative 	folders.
Although 	substitute 	teachers 	may 	share 	the 	same 	interests
and 	concerns 	of 	all 	certificated 	employees, 	there 	are
differences 	between 	substitute 	teachers 	and 	regular 	classroom
teachers. 	Substitute 	teachers 	do 	not 	accumulate 	sick 	leave 	or
other 	types of 	leave, 	nor 	do 	they receive health 	benefits.
Day-to-day 	substitute 	teachers 	are 	not 	required 	to 	attend
faculty meetings 	or 	perform 	extra 	duty 	stipend 	activities;
i.e., 	coaching after-school 	sports, 	chaperoning after-school
dances, 	etc. 	They have no guarantee 	of 	employment 	and do not
enter 	into written 	employment 	contracts 	with 	the 	District.
Substitute 	teachers 	cannot 	acquire 	permanent 	status 	in 	the 	same
manner 	as 	regular 	classroom 	teachers. 	While 	regular 	classroom
teachers 	qualify 	for 	membership 	in 	the 	California 	state
Teachers' 	Retirement 	System as 	soon 	as 	they begin 	teaching 	in
the District, 	substitute 	teachers must 	teach 	100 	or 	more 	days
per 	year 	to become 	eligible.
DISCUSSION
In 	the 	proposed 	decision, 	the Board agent 	reviewed 	the 	unit
appropriateness 	criteria 	found 	in 	the 	Educational 	Employment
Relations Act 	(EERA) 	section 3545(a);2 i.e., 	community of
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
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interest, 	efficiency of operation, 	history of 	representation
and 	extent 	of 	organization. 	she 	found 	that, 	in 	the 	instant
case, 	the 	substitute 	teachers 	shared 	a 	community of 	interest
among 	themselves.3 Thus, 	the 	Board 	agent 	concluded 	that 	a
separate 	unit 	of 	substitutes 	is 	an 	appropriate 	unit 	and 	granted
the 	representation 	petition.
The 	District's 	exceptions 	fall 	into 	two main 	areas: 	(1)
that 	the 	proposed 	decision 	contains 	an 	inaccurate 	and
incomplete 	statement 	of 	facts; 	and 	(2) 	that 	the proposed
decision 	erroneously 	interprets 	and 	applies 	the 	mandate 	of 	EERA
seq. 	unless 	otherwise 	indicated, 	all 	statutory 	references
herein 	are 	to 	the Government 	Code.
EERA section 3545 	provides, 	in 	relevant part:
(a) 	In 	each 	case where 	the 	appropriateness
of 	the 	unit 	is 	an 	issue, 	the board shall
decide 	the question 	on 	the 	basis 	of 	the
community 	of 	interest 	between 	and 	among 	the
employees 	and 	their 	established 	practices
including, 	among other 	things, 	the extent to
which 	such 	employees 	belong 	to 	the 	same
employee 	organization, 	and 	the 	effect 	of 	the
size 	of 	the 	unit 	on 	the 	efficient 	operation
of 	the 	school 	district.
(b) In all cases:
(1) 	A negotiating unit 	that 	includes
classroom 	teachers 	shall 	not 	be 	appropriate
unless 	it 	at 	least 	includes 	all 	of 	the
classroom 	teachers 	employed 	by 	the 	public
school 	employer, 	except management
employees, 	supervisory employees, 	and
confidential 	employees.
3Because 	there 	was 	no 	unit 	modification 	petition 	before
the PERB, 	the 	Board 	agent 	did 	not make 	any 	findings 	regarding
what 	community 	of 	interest 	substitutes 	and 	regular 	teachers 	may
have.
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section 3545(a) 	and 	(b)(l), 	as well as applicable PERB
precedent.
The 	District 	states 	that 	certain 	facts 	were 	stipulated 	to
or 	presented 	to 	the 	hearing officer 	which were 	not 	reflected 	in
the 	proposed 	decision. 	These pertain 	to 	the 	number 	of
substitutes 	in 	the 	District, 	and 	certain 	duties 	they perform.
The 	District 	also 	finds 	it 	relevant 	that 	there 	are 	three
categories 	of 	substitutes, 	that 	regular 	classroom teachers
sometimes 	serve 	as 	substitute 	teachers, 	and 	that 	the 	regular
classroom 	teachers 	and 	substitutes 	evaluate 	each 	other.
Additionally, 	the Association has 	a 	history 	of 	representing
substitutes 	and 	of 	adding other 	groups 	to 	the 	unit 	(e.g.,
psychologists 	and preformal 	teachers).
The 	facts 	that 	the 	District 	argues 	were 	left 	out 	of 	the
proposed 	decision 	are 	not 	essential 	to 	the 	case. 	While 	they
were part 	of 	the 	evidence 	presented, 	and 	thus part 	of 	the
record, 	they are 	not 	pivotal. 	It 	is 	not 	germane 	to the 	issues
presented 	in 	this 	case 	that 	there 	are 	three 	categories 	of
substitute 	teachers 	and 	that 	other 	employees 	were 	added 	to 	the
certificated 	unit. 	We 	find 	no 	prejudicial 	error 	in 	those
omissions. 	Further, 	nothing 	indicates 	that 	these 	facts were
not 	considered 	by 	the 	Board 	agent.
The 	District 	also 	argues 	that 	EERA 	section 	3545 	establishes
a 	rebuttable 	presumption 	that 	all 	classroom 	teachers 	should 	be
placed 	in 	a 	single bargaining unit, 	unless 	such 	a 	unit 	is 	shown
to 	be 	inappropriate, 	and 	that PERB has 	recognized 	this
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presumption 	in 	Los 	Gatos 	Joint 	Union 	High 	School 	District
(1983) 	PERB Decision No. 	355 	and Peralta Community College
District 	(1978) 	PERB Decision No. 	77. 	Under 	this 	presumption,
the 	burden 	of 	proving 	the appropriateness 	of 	a 	separate 	unit 	of
substitute 	teachers 	rests 	squarely 	on 	those 	who 	oppose 	a
comprehensive teachers' unit; 	i.e., 	the Association. 	Instead,
the 	proposed 	decision 	shifts 	the 	burden 	to 	the 	District 	and
requires 	it 	to 	prove 	the 	inappropriateness 	of 	a 	separate 	unit
of 	substitute 	teachers. 	The 	District 	asserts 	that 	although 	the
Peralta 	decision was 	not 	to have 	retrospective application, 	it
was 	to 	apply 	to all 	subsequent 	representation 	cases. 	Since 	the
representation 	petition 	in 	the 	instant 	case was 	filed 	four
years 	after 	Peralta was 	decided, 	it 	is 	prospective and the
Peralta 	presumption 	must 	be 	applied 	to 	this 	case.
The 	District 	also 	argues 	that 	there 	is 	nothing 	in 	the
record 	in 	the 	instant 	case, 	save 	the existence of a 	contract
between 	the 	District 	and 	the 	Association, 	which 	would 	indicate
that 	inclusion 	of 	substitutes 	in 	the 	certificated 	bargaining
unit would 	cause 	disruption and/or 	instability. 	Indeed, 	the
Association 	offered 	no 	evidence, 	nor 	was 	any finding made 	in
the 	proposed 	decision, 	that 	inclusion 	of 	substitutes within 	the
regular 	certificated 	unit 	would 	cause 	disruption 	or 	instability
in 	the 	existing unit. 	The District 	asserts 	that 	there 	is 	no
evidence 	showing a 	lack 	of 	community of 	interest, 	but 	that,
instead, 	the 	evidence 	of 	community of 	interest 	between 	the
groups 	"is 	overwhelming."
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The 	primary 	issue 	before 	us 	is 	what 	effect 	the 	Peralta
presumption 	has 	on 	the 	instant 	case. 	In 	Peralta, 	the 	Board
found 	that 	EERA 	section 	3545 	establishes 	a 	rebuttable
presumption 	that 	all 	classroom teachers 	should 	be 	placed 	in 	a
single unit, 	absent 	a 	showing of 	a 	lack 	of 	community of
interest 	between 	the 	groups.
But 	because 	its 	decision would 	be 	disruptive 	to 	existing
units 	if 	it 	had 	retroactive 	effect, 	the 	Peralta 	Board held 	that
its 	decision would 	be 	applied 	prospectively only. 	Relying 	on
that 	rationale, 	the 	Board 	agent 	found 	it 	inappropriate 	to 	apply
the Peralta presumption 	to 	the 	instant 	case.
Prospective 	Application 	of 	Peralta
In 	Palo 	Alto 	Unified 	School 	District/Jefferson 	union 	High
School 	District 	(1979) 	PERB Decision No. 	84, 	the Board
determined 	that 	it 	would 	not 	apply the 	test 	formulated 	in
Peralta 	where 	retroactive 	application 	of 	the 	test 	would 	cause
disruption 	and 	instability 	in 	the 	existing 	certificated 	unit.
Not 	only was 	there 	a 	pre-existing 	unit which 	excluded
substitute 	teachers, 	that 	case was 	already on 	the 	Board's
docket. 	Indeed, 	Palo Alto/Jefferson, 	supra, 	was 	issued 	just
two months 	after 	Peralta. 	There, 	the Board 	reasonably believed
that 	application 	of 	Peralta 	to 	a 	case 	already 	in 	the 	"pipeline"
would 	disrupt 	the 	existing 	relationships.
The 	instant 	case 	arose 	long 	after 	Peralta was 	issued and
affects 	a 	group 	of 	classroom 	teachers 	— 	substitutes. 	While
the 	representation petition, 	on 	its 	face, 	applies only to
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substitute employees, 	it 	necessarily affects 	the existing
certificated 	unit. 	Although 	substitutes 	were 	not 	originally
included 	in 	the 	certificated 	bargaining 	unit, 	they now 	seek
representation. 	Their 	placement 	now 	becomes 	relevant 	and 	the
Peralta 	presumption 	does 	apply.
Effect 	of 	the 	Peralta 	Presumption
Early 	PERB 	cases 	either 	ignored 	the 	status 	of 	substitute
employees,4 or 	found 	they 	lacked 	a 	community 	of 	interest 	with
regular 	classroom 	teachers.5 Even 	after 	Peralta, 	substitute
employees 	were 	excluded 	from 	certificated 	bargaining
units.6
In 	1981, 	the Board's 	treatment of 	substitute teachers
changed. 	In 	Dixie 	Elementary 	School 	District 	(1981) 	PERB
Decision 	No. 	171, 	the 	Board 	found that 	a 	certificated unit
4Tamalpais 	Union High 	School 	District 	(1976) 	EERB
Decision No. 	1; 	Lompoc Unified School 	District 	(1977) 	EERB
Decision 	No. 	13; 	Shasta-Tehama-Trinity Joint Community college
District 	(1977) 	EERB Decision No. 	31; 	Carlsbad Unified School
District 	(1977) 	EERB Decision No. 	41; 	Monterey Peninsula
Community College 	District 	(1978) 	PERB Decision No. 	76. 	(Prior
to January 	1, 	1978, 	PERB was 	known as 	the Educational
Employment 	Relations 	Board 	or 	EERB.)
5Belmont 	Elementary 	School 	District 	(1976) 	EERB Decision
No. 	7; 	Petaluma 	Elementary and High 	School 	District 	(1977) 	EERB
Decision No. 	9; 	Oakland Unified School District 	(1977) 	EERB
Decision No. 	15; 	Los Rio Community College District 	(1977) 	EERB
Decision No. 	18.
6Palo 	Alto 	Unified 	School 	District/Jefferson 	Union 	High
School 	District 	(1979) 	PERB Decision No. 	84; 	Paso Robles Union
School District, 	et al 	(1979) PERB Decision No. 	85; 	Berkeley
Unified School 	District 	(1979) 	PERB Decision No. 	101; 	Jefferson
School District 	(1980) 	PERB Decision No. 	133; 	El Monte union
High 	School 	District 	(1980) 	PERB Decision No. 	142.
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which 	included 	substitute 	employees 	was 	appropriate. 	In 	that
case, 	the 	Board 	found 	that 	it was 	not 	relevant 	that 	individual
substitutes 	may 	not 	have 	expectancy 	of 	continued 	employment
because substitutes, 	as a class, 	do expect 	future employment.
That 	decision 	was 	affirmed 	by 	the 	Board 	in 	Dixie 	Elementary
School District 	(1983) 	PERB Decision No. 	298, 	where an unfair
practice 	charge 	had 	been 	filed 	because 	the 	district 	refused 	to
bargain 	with 	the 	certificated 	unit 	after 	substitutes 	and
temporary 	employees 	had been 	placed 	in 	that 	unit 	pursuant 	to
PERB Decision No. 	171. 	The 	Board found 	that 	the 	district
failed 	to 	offer 	either 	new 	facts 	or 	arguments 	of 	law 	supporting
its 	contention 	that 	substitutes 	were 	not 	properly placed 	in 	the
unit 	of 	full-time 	classroom 	teachers.
In 	Oakland 	Unified 	School 	District 	(1983) 	PERB 	Decision
No. 	320, 	the Board affirmed the hearing officer's 	decision
granting 	a 	petition 	to 	add 	all 	regular 	certificated 	substitute
employees 	to 	the 	certificated 	unit. 	The 	hearing 	officer 	found
sufficient 	community 	of 	interest 	between 	these 	two 	groups 	of
employees.
The 	Board 	has 	previously 	discussed 	whether 	a 	community 	of
interest 	exists 	between 	substitutes 	and 	regular 	classroom
teachers, 	and what 	effect a 	combined unit, 	or 	separate units,
would 	have 	on 	the 	efficient 	operation 	of 	the 	District. 	Factors
that 	have 	been 	considered 	include: 	qualifications, 	training
and skills, 	job 	functions, 	method of 	determining wages or 	pay
schedule, 	hours of work, 	fringe benefits, 	supervision,
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frequency 	of 	contact with 	other 	employees, 	integration with
work 	functions 	of 	other 	employees, 	interchange with 	other
employees, 	and 	acquisition 	of 	seniority;7 whether 	employees
enjoy 	the 	same 	re-employment 	rights, 	required 	to attend 	same
faculty meetings, 	prepare assignments and 	lesson plans, 	and
perform 	other 	similar 	duties;8 and 	whether 	they 	shared 	common
purposes and goals.9
These 	criteria 	were 	reviewed 	in 	later 	cases 	as 	well. 	In
applying 	these 	criteria 	to 	differing 	factual 	situations, 	the
Board 	has 	reached 	various 	and 	often 	conflicting 	decisions.
Each 	case must 	be 	considered on 	its 	own 	facts.
In 	the 	instant 	case, 	the 	issue before 	the hearing officer
was 	whether 	a 	separate 	bargaining 	unit 	of 	substitute 	employees
is 	appropriate. 	Because 	this 	issue was 	so 	limited, 	evidence
was 	not 	presented 	regarding whether 	a 	community 	of 	interest
existed 	between 	regular 	classroom 	teachers 	and 	substitute
teachers. 	The 	only community of 	interest 	evidence 	presented
and 	argued 	at 	the 	hearing 	was 	whether 	substitute 	employees
shared 	a 	community 	of 	interest 	among 	themselves.
The District argues, 	however, 	that there is sufficient
evidence 	to 	show 	that 	inclusion 	of 	substitute 	teachers 	into 	the
7Los 	Angeles 	Unified 	School 	District 	(1976) 	EERB Decision
No. 5.
8Belmont 	Elementary 	School 	District 	(1976) 	EERB 	Decision
No. 7.
9Grossmont 	union High 	School 	District 	(1977) 	EERB
Decision No. 	11.
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existing 	certificated 	unit 	would 	be 	less 	disruptive 	than 	a
separate 	unit 	of 	substitute 	teachers. 	It 	bases 	this 	argument
mainly on 	the 	role 	the Association 	has 	played 	in 	representing
substitutes 	in 	adjusting 	grievances 	and 	in 	claims 	before 	the
California 	Unemployment 	Insurance 	Appeals 	Board.
The 	District 	then 	asserts 	that 	the 	evidence 	shows 	that
placing 	substitutes 	in 	a 	separate 	unit 	would 	impair 	the
effective 	operation 	of 	the 	District. 	It 	states 	that 	there 	are
a 	number 	of 	areas 	which 	could pose 	potential 	conflict 	between
substitutes 	and 	regular 	teachers 	should 	they be 	in 	separate
bargaining units. 	Because of this, 	there 	is a 	great potential
for 	"whipsawing" 	the 	District. 	It 	argues 	that 	these 	"potential
areas 	of 	conflict 	can 	best 	be 	resolved 	in 	a 	combined 	unit."
The 	Board 	agent 	incorrectly 	determined 	that 	the 	Peralta
presumption 	did 	not 	apply 	to 	the 	instant 	case. 	Because 	of 	this
error, 	the proposed decision 	fails 	to 	recognize that, 	in order
to 	make 	a 	determination 	that 	a 	separate 	unit 	of 	substitutes 	is
an appropriate 	unit, 	there must 	be a 	showing and a 	finding of
lack 	of 	community 	of 	interest 	between 	substitutes 	and 	regular
teachers 	sufficient 	to 	overcome 	the 	presumption 	against 	a
separate 	unit 	of 	substitutes. 	The 	proposed 	decision 	highlights
certain 	factors 	which 	distinguish 	substitutes 	from 	regular
classroom 	teachers, 	but 	fails 	to 	discuss whether 	these 	factors
affect 	their 	community 	of 	interest. 	instead, 	the 	proposed
decision 	holds 	that 	evidence 	of 	a 	community of 	interest 	between
these 	groups 	has 	no 	relevance 	to a 	representation petition.
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For 	the 	reasons 	stated above, 	we disagree. 	Nevertheless,
there 	is 	inadequate 	evidence 	on 	the 	record 	to 	determine whether
a 	community of 	interest 	does 	or 	does 	not 	exist 	between 	these
groups. 	Therefore, 	we remand this 	case 	to the 	Chief of 	the
Division 	of 	Representation 	to 	reopen 	the 	record 	and 	allow 	the
parties 	to 	present 	evidence 	on 	the 	EERA 	section 	3545(a)
criteria; 	i.e., 	whether a 	community of 	interest 	exists between
these 	groups, 	how 	the 	prior 	negotiating history 	in 	the 	District
should 	bear 	on 	the 	issue, 	and 	the 	effect 	on 	the 	efficiency of
operation 	if 	these 	employees 	are 	included with 	the 	regular 	unit.
ORDER
Based on 	the 	foregoing findings 	of 	fact, 	conclusions 	of
law, 	and the entire 	record in this matter, 	it 	is hereby ORDERED
that:
The 	petition 	for 	representation 	by 	the 	Modesto 	Teachers
Association 	be 	REMANDED 	to 	the 	Chief 	of 	the 	Division 	of
Representation 	for 	further 	proceedings 	consistent 	with 	this
Decision.
Members 	Morgenstern 	and 	Burt 	joined 	in 	this 	Decision.
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