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1 STATE OF CALIFORNIADECISION OF THEPUBLIC EMPLOYMENT RELATIONS BOARDPERALTA community college district ,Employer,andPERALTA FEDERATION OF TEACHERS,AFT LOCAL 1603,Employee Organization,andPERALTA HIGHER EDUCATION ASSOCIATION,CTA/NEA,Employee Organization,and)))))))) Case No. SF-R-501)) PERB Decision No. 77)November 17, 1978) peralta district TEACHERS ASSOCIATION, ))Employee Organization. )Appearances; Lee T. Paterson, Attorney (Paterson & Taggart)for peralta community college district ; Stewart Weinberg,Attorney (Van Bourg, Allen, Weinberg & Roger) for PeraltaFederation of Teachers, AFT Local 1603; Francis R. Giambroni,Attorney (White, Giambroni & Walters) for peralta HigherEducation Association, CTA/NEA; Charles I. Eisner, Attorney(Boornazian, King & Schulze) for peralta district : Gluck, Chairperson; Cossack Twohey and Gonzales, case comes before the Public Employment RelationsBoard (hereafter PERB or Board) on exceptions to the hearingofficer's proposed decision filed by the peralta Federation ofTeachers, AFT Local 1603 (hereafter AFT) and the peralta Higher, ) ) ) ) _____ ) Education Association, CTA/NEA (hereafter CTA).

2 The sole issuein the case is whether, as the hearing officer found, employeesof the East Bay Skills Center (hereafter Skills Center orCenter) component of the peralta community college district (hereafter district ) shall be excluded from the unit of allcertificated employees. The district supports the hearingofficer's decision, while the third employee organization, thePeralta district Teachers Association, took no position on theissue in this case. We affirm the finding of the district has five colleges - Merritt and Laney Collegesin Oakland, the college of Alameda in Alameda, the PeraltaCollege for Non-traditional Study in Berkeley, and Feather RiverCollege in Skills Center has approximately 32 certificatedemployees who offer vocational training and guidance at alocation in Oakland five to eight miles from any of theDistrict's other facilities.

3 The Center's operation depends onits procurement of contracts from numerous government agenciescalling for the training of students in specified vocational1An election was held on November 1-3, 1977 pursuant to aconsent agreement allowing Skills Center employees to votechallenged ballots pending the final decision of this results of the election have not been certified because the19 votes challenged here could have changed the result. TheFederation received 300 votes, the peralta district TeachersAssociation 202 and the Association areas. It is continuously making application for new contractsand this results in variation in the amount of fundingavailable to the Center at any given time. At present, about90 percent of the Center's funding originates from the federalgovernment under the Comprehensive Employment Training Act(CETA) program and passes through various governmentalintermediaries which make the direct contract awards.

4 Theremaining 10 percent is derived from the state in average dailyattendance (ADA) Center is in year-round operation and its classes havehighly variable lengths ranging from two weeks up. The classesmeet for at least six hours daily and instructors teach 32hours a week. In contrast to this intensive system, otherDistrict instructors teach an average of 15 hours a week andhave five office hours a week during two 18-week semesters orthree quarters, depending on the district college with whichthey are members are hired to teach under specificcontracts. They can be terminated at the end of the contractif no new contract requires their services. Employees are paidon an hourly basis, ranging from $ to $ an salary schedule is not related to the compensation ofother district personnel.

5 Employees also receive dental,medical and life insurance. They receive sick leave, but thiscannot be accumulated from year to year. Vacation time isaccumulated year-round. Some faculty pay into the PublicEmployees Retirement System (PERS) while others are members of3 the State Teachers Retirement System (STRS). No sabbaticalleave is personnel policies exist for the Skills Centerincluding distinct grievance and evaluation procedures and adifferent seniority system. Employees serve a 90-dayprobationary period and do not receive The SkillsCenter director supervises only Skills Center certificatedemployees and reports to the president of Merritt Center faculty come in at least occasional contactwith other certificated staff of the district at meetings ofDistrict faculty, of the Academic Senate and of district -widecommittees.

6 Faculty only occasionally teach at anotherDistrict facility in addition to their work at the SkillsCenter. They have no transfer rights to the other Districtcolleges. Courses similar to those taught at the Skills Centerare taught at other colleges in the district . However, theCenter's classes are much more intensive, designed to train astudent under industry conditions and to release them to findemployment as soon as they are able to meet the competencyspecifications of the are referred to the Center by various sponsoringagencies and normally are not "walk-in" enrollees. Studentsreceive a stipend from sponsoring agencies in an amount2 The Federation has brought court challenges to theemployment policies of the district seeking equality with othercertificated staff. The cases are on appeal to the DistrictCourt of Appeal.

7 (Moore v. peralta community college Districtand Robinson v. peralta community college district . ( , Alameda Co., Nos. 487984-0 and 492190-9).)4 sufficient for livelihood during the training period. Astudent must be present to receive a stipend for that a student from one of the other district collegeswill enroll at the Skills Center. Somewhat more frequently aSkills Center student will take classes elsewhere, usually inorder to qualify for an Associate of Arts degree. Studentsmust petition to have Skills Center classes credited toward theAssociate of Arts AFT and CTA are united in the view that certain SkillsCenter teachers enjoy a sufficient community of interest to beincluded in an "overall" unit of certificated personnel. Inaddition, CTA makes an effort to breathe new life into anargument laid to rest in Belmont Elementary School District3and cemented over in Petaluma City Elementary and High SchoolDistricts4 that all persons who teach in a classroom areclassroom teachers and must be in the same negotiating unitunder the provisions of section 3545(b)(I).

8 5 Patently, it is3(12/30/76) EERB Decision No. (2/22/77) EERB Decision No. otherwise indicated, all statutory references areto the Educational Employment Relations Act (hereafter EERA)and the Government Code. The EERA is codified at GovernmentCode section 3540 et 3545(b)(l) is set out in the text CTA's position that the Skills Center teachers are classroomteachers under the hearing officer has relied principally on New HavenUnified School district ,6 adopting, albeit somewhatuncertainly, it seems, the Belmont and Petaluma concept that aclassroom teacher is one who is "regular, full-time, permanentor probationary." Apparently finding this definitioninapplicable to the Skills Center teachers, he then proceededto find that these teachers lacked a sufficient community ofinterest with employees in the "overall" certificated unit towarrant their inclusion in that proposed decision is examined here, not against theedicts of prior Board holdings, but in light of the statutoryinstructions given to this Board by the California Legislature.

9 * * *Section 3545 has proven to be a troublesome scripture toadvocates and Board members alike. On its face, the provisionis alluringly ingenuous, clothed in the calico simplicity ofcommon words and phrases:(a) In each case where the appropriatenessof the unit is an issue, the board shalldecide the question on the basis of thecommunity of interest between and among theemployees and their established practicesincluding, among other things, the extent towhich such employees belong to the sameemployee organization, and the effect of thesize of the unit on the efficient operationof the school (3/22/77) EERB Decision No. 14,6 (b) In all cases:(1) A negotiating unit that includesclassroom teachers shall not be appropriateunless it at least includes all of theclassroom teachers employed by the publicschool employer.

10 (Quoted in pertinentpart.)The term "classroom teacher" is not defined in the the Education Code, where the term is also used, no specificdefinition is given, but particular uses of the term indicatethat it is applicable to all persons who teach in a classroomfor any period of If section 3545(b) of the EERA constituted the sole standard of unit determination, it ispossible that the Board would have placed all teachers in asingle unit, save possibly those deemed to be "casuals." Butsophisticated minds, burdened by private sector precedent and asensitivity to the dynamics of the negotiating unit, have foundthemselves unable to whistle past the apparent contradictioncontained in section 3545(a). Can the statutory criteria ofappropriateness be ignored? Should they be ignored?