August 2, 2010
Reversing a 34-year-old decision, the Public Employment Relations Board (PERB) held this week that employees working solely in positions excluded by the Education Code from the classified service are not “public school employees” under the Educational Employment Relations Act (EERA) and therefore have no representation rights under the Act. PERB rejected a request by a union to add a district’s part-time playground positions (frequently referred to as “noon duty aides”) to the group of classified employees included within the bargaining unit, but gave its decision prospective effect only. Thus the decision does not change the status of existing bargaining units that include such positions.
In Castaic Union School District (8/9/10) PERB Order No. Ad- 384, California School Employees Association (CSEA) fi led a unit modification petition seeking to add noon duty aides to the classified bargaining unit. It based its petition on a 1976 decision holding that such employees have representational rights under EERA and a “community of interest” with classified employees. Castaic challenged the petition, arguing EERA did not extend rights to such employees, and that they did not have a community of interest because such employees were not “classified.” The PERB agent rejected the district’s arguments, and without taking formal evidence, found that noon duty aides were covered by EERA, and had a community of interest with classified employees and thus placed them in the classified bargaining unit.
The district appealed to PERB, which overturned prior decisions granting such employees representation rights, and concluded instead they are not entitled to representation under EERA.
Education Code section 45103(b)(4) provides that “part-time playground positions shall not be part of the classified service” unless the employee also holds a regular classified position, in which case both assignments are treated as classified. (In Castaic, none of the noon aides also holds a classified position.) In Pittsburg Unified School District (1976) EERB Dec. No. 3, PERB held that even though noon duty aides were not “classified,” they were entitled to representation and placement in a regular classified bargaining unit. In Fontana Unified School District (2004) PERB Dec. No. 1623, PERB upheld a Board agent’s decision that noon duty aides had a suffi cient community of interest to be placed in the classified bargaining unit.
EERA extends representational rights to “public school employees,” which are defined as “any person employed by a public school employer.” While noon duty aides are “employed” by a public school employer, they are neither classified nor certificated. EERA provides that an “exclusive representative” is a representative of “certificated or classified employees.” Based on this language, an exclusive representative “may only represent a bargaining unit of certifi cated or classified employees and, therefore, cannot represent employees who do not fall into one of those two categories.” Further, an “appropriate” bargaining unit contains only certificated or classified employees. Because noon duty aides fall into neither category, they cannot be represented.
PERB analogized noon duty aides to “short-term employees,” which are also excluded from the classified service under the Education Code. A 1984 PERB decision concluded “shortterm employees” are not entitled to representation under EERA. PERB noted the Legislature intended to treat excluded employees (such as shortterm and noon duty aides) differently than, and not guarantee them the same rights as, classified employees.
PERB then held that even if noon aides were entitled to representation, the record in Castaic did not establish the necessary “community of interest” between the noon duty aides and the classified employees. CSEA made only a summary statement that the groups shared a community of interest, while the district set forth the numerous ways in which noon duty aides are treated differently than classified employees, including differences in supervision, hiring practices, hours of work, salary, benefits, education, experience, reemployment rights and disciplinary actions. This holding provided an alternative ground for denying the unit modification petition.
While this decision is a victory for school employers, PERB held that “Because of the potential disruption to stable employer-employee relations that would result from the application of this decision to such units, PERB will only apply this decision prospectively.” Thus, districts that already have noon duty aides in bargaining units are not entitled to now remove them from the units.
The decision applies only to noon duty aides who do not also hold regular classified positions. Employees who work in regular classified positions in addition to their noon duty aide assignments are considered classified employees and are entitled to representation for both.