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the COE are funded based on grants or from billings for servicessuch as data processing.The funding of the COE is distinguished from the District inseveral ways.The ADA for ROP is based on hour by hourattendance records (actual "seat time"), while K-12 attendance isonly taken once per school day.The District receives additionalfunding from sources such as mentor teacher, school improvement(SIP), and incentive grants.Some years the ROP is treated as acategorical program and thus does not receive a cost of livingadjustment, even in years that the District does.The ROP isrestricted in terms of the amount of reserves it may carry.COE ProgramsThe ROP was established in the early 1970's as a COE programand was initially created as a three-county program includingPlumas, Sierra and Lassen.11Lassen County later formed its ownprogram, but the COE still provides the ROP for Plumas and Sierracounties, with the bulk of the attendance being in Plumas.Nurses training programs of the ROP are offered in Plumas,1Education Code section 52301 provides in part that thecounty superintendent of schools of eachcounty, with the consent of the State Boardof Education, may establish and maintain, orwith one or more counties may establish andmaintain, at least one regional occupationalcenter, or regional occupational program, inthe county to provide education and trainingin vocational courses. The governing boardsof any school districts maintaining highschools in the county may, with the consentof the State Board of Education and of thecounty superintendent of schools, cooperatein the establishment and maintenance of aregional occupational center or program[.]77

Sierra, Shasta and Nevada12 counties; school to work programs inPlumas, Modoc and Lassen counties; and various grant-fundedprograms, such as Computers in Our Future and AmeriCoach, inPlumas County.In addition to nursing programs, the ROP offers instructionin computer applications, administration of justice, computerassisted drawing, forestry, TV production, computer accounting,mechanical drawing, welding, bus driver training, andconstruction, automotive, food service, restaurant, agriculture,computer, medical and business occupations.Approximately 20 percent of the ROP students, including allin the nursing programs, are adult learners, and the balance areregular high school students (16 or older).Most regularstudents served by the ROP program attend a class at their schoolsite.Most ROP instruction, in fact, takes place in classroomslocated at high schools and continuation schools of the Districtor the Sierra-Plumas Joint Unified School District.The majorexceptions involve the nursing programs (classroom andclinical/hospital settings), construction occupations (job sitesand classroom) and bus driver training (maintenance yard).COE WorkforceInitially, the ROP hired all of its own teachers.However,in the early 1980's, the District laid off teachers and cut manyvocational programs.The ROP picked up some of the laid off12References to a certified nursing aid program in Truckeesometimes placed it in El Dorado County and other times in NevadaCounty. Truckee is located in Nevada County.88

teachers and the County Superintendent and District began apractice of sharing individual teacher contracts.Presently, several different employment arrangements areutilized for persons delivering instruction for the CountySuperintendent.13For example, the ROP has two instructorslocated at Loyalton High School in Sierra County.One is a full-time employee of the Sierra-Plumas Joint Unified School District.The County Superintendent contracts with that district to pay forhalf of the salary and other costs.The other is a full-timeemployee of the County Superintendent, and the Sierra-PlumasJoint Unified School District pays half of that cost.Many more such arrangements are found between the Districtand County Superintendent.While the status quo is fluid,approximately 11 bargaining unit members teach for both theDistrict and County Superintendent.Where an employee holdsmultiple positions with both the District and COE, the employeereceives a payroll warrant from each but is issued only oneemployment contract.The County Superintendent's agreement iswith the District in that case, not with the employee.Describing this type of arrangement, Larry Champion testified:At present we contract with the District fora portion of that time, but we do notcontract with the individual.13The COE projected filling the full-time equivalent (FTE)of 18.12 positions for 1998-1999, involving up to 42 separateappointments.99

The County Superintendent directly employs approximately 11certificated employees who are not also employed by theDistrict.14The credentialing requirements for ROP teachers differ fromthose of most classroom teachers by emphasizing work experienceover academic achievement.However, many ROP teachers have beenor are regular classroom teachers and many, if not most, meetboth types of credential requirements.Terms and Conditions of EmploymentUnder the Agreement, the type of credential held does notaffect placement on the salary schedule.In fact, the rights andbenefits of unit members generally apply equally to employees ofboth the District and COE.15The Agreement specifies that COEand District employees can mutually donate sick leave hours forcatastrophic leave benefits.The Agreement further provides fora common seniority pool for COE and District employees, based onthe employee's first date of paid service in a probationarystatus with either employer.There was unrebutted hearingtestimony that ROP teachers cannot achieve tenure or permanentstatus as ROP teachers and, thus, the process involved in anydisciplinary issue would be different for them.However, thesedistinctions are not reflected in the Agreement.14The numbers addressed in this paragraph concern only thosepersons in positions included in the certificated bargaining unitand not those working less than half-time.15The Agreement, at Section 2.03, states that references to"unit member" include all represented employees unless specifiedotherwise.10

As noted previously, certain ROP teachers work in nonclassroom settings and their hours, particularly for those innursing programs, are quite different than those of classroomteachers.Both the District and County Superintendent employindividuals in itinerant teaching positions.Whether employed solely by the County Superintendent or bythe District as well, the majority of ROP teachers are located atDistrict schools and are well integrated into the workenvironment.For example, Wes Stoddard has been continuouslyemployed both as an ROP teacher and a "regular" teacher at QuincyHigh School since 1983.He currently teaches metal and wood shopfor the District and welding for the ROP, and uses the sameclassroom for all courses.Stoddard and other ROP teachers atQuincy, including two who are full-time employees of the CountySuperintendent, attend faculty meetings at their school and inthe District; use the same faculty lounge and parking lot asother teachers; are supervised and evaluated by the same siteadministrator; and perform extra duty assignments such as classadvisor, coaching, and bus and dance duty.Stipends are paid forextra duty assignments, just as the County Superintendent paysextra duty stipends to certain District teachers who performduties under its AmeriCoach grant.This seamless integration of ROP and regular teachers hasbeen accomplished by design.Larry Champion described the planas follows:We have an agreement with the sites, and itis one that has evolved, our intent is thatthe ROP teacher be an inclusive part of every11

staff, that the part that they serve isseamless, that no one knows the difference,they're a teacher on the site and that is agood thing.Nevertheless, the County Superintendent has not cededcontrol over his programs to the District.While the siteadministrator evaluates ROP teachers, Champion would be involvedif there were problems identified by the evaluation and Cottinimust approve any adverse action or discipline.Also, in additionto attending site staff meetings, ROP teachers attend ROP staffmeetings, including ones held in conjunction with District-widemeetings.Champion meets with ROP teachers individually on aregular basis as well.Finally, ROP teachers initiate contactsto make requests for money and supplies for programs with boththeir site administrators and Champion.POSITIONS OF THE PARTIESDistrictThe District did not appear at the hearing, nor state aposition on the County Superintendent's petition at any time.County SuperintendentThe County Superintendent's argument is organized into threeparts:The separate and distinct status of the CountySuperintendent as a public school employer, the adverse impactthat the established bargaining unit has on COE operations, andcommunity of interest considerations.Concerning status as a separate employer, the CountySuperintendent cites Education Code sections 1240 et seq., whichauthorize the county superintendent of schools to conduct12

operations as a distinct employer, including the hiring anddiscipline of both classified and certificated staff.The CountySuperintendent also cites 72 Ops.Cal.Atty.Gen. 25 and AlamedaCounty Board of Education and County Superintendent of Schools ofAlameda County (1983) PERB Decision No. 323 (Alameda) .16The County Superintendent further argues that separateemployer status is evidenced by the fact that the CountySuperintendent has fewer and different funding sources than theDistrict.In addition, the County Superintendent operates undera limitation not applicable to the District since the law allowsno more than a 15 percent ROP reserve and requires that any fundsin a ROP reserve be used only for capital outlay.The final point regarding separate employer status is thatthe County Superintendent has authority to approve, or withholdapproval from, a collective bargaining agreement.This authorityis exercised on an equal basis with the District's GoverningBoard.The second argument made by the County Superintendentconcerns the adverse impact of the current unit configuration onthe COE, as evidenced by the effect of a retroactive salarypayment negotiated in a prior year.Night school programs of theCounty Superintendent had to be reduced, as well as expendituresfor supplies and equipment, in order to meet the requirements ofthe salary increase.The ability of the County Superintendent to16Both the Attorney General's Opinion and Alameda addressedthe relative authority of the county superintendent and a countyboard of education over employer-employee relations issues.13

plan and administer programs would be enhanced if the CountySuperintendent had autonomy to bargain based on the revenuestream and budget of his office.Finally, since the County Superintendent is a separate anddistinct employer, traditional community of interests factorshave limited application in this case.However, viewed in theirtotality as required by Monterey Peninsula Community CollegeDistrict (1978) PERB Decision No. 76, these factors also supportapproval of the requested unit modification.The geographicalarea in which County Superintendent employees work is far broaderthan Plumas County; the working sites and conditions for manyemployees, especially those in nursing programs, are quitedifferent than those of regular classroom teachers; theirtraining and backgrounds are different than District teachers;and the educational mission is directed toward vocational skillsrather than fundamental academic skills.AssociationThe Association argues that the parties' stable bargainingrelationship (Los Angeles Unified School District (1998) PERBDecision No. 1267) and the community of interest shared by theDistrict's and County Superintendent's certificated staff requirefinding the existing unit appropriate.The Association relies onstatutory criteria (EERA section 3545(a))17 and PERB precedent.(Kings County Office of Education (1990) PERB Decision No. 801.)"The Educational Employment Relations Act (EERA) iscodified at Government Code section 3540 et seq.14

The Association contends that the teachers at issue are onthe same salary schedule, receive the same benefits, share commonsupervision, have frequent interaction, and often work on similarextra duty assignments such as coaching or serving as classadvisor.The teachers also share many goals, as educators and asemployees, and belong to the same employee organization.Further, the credentialing differences between ROP andregular teachers are not significant and any difference isrendered moot under Stanislaus County Office of Education (1993)PERB Decision No. 1022 (Stanislaus).In Stanislaus, the Boardapproved the addition of a certificated naturalist position tothe teachers unit despite differences in working conditions,funding source and other community of interest indicia.The second prong of the Association's argument relies onNational Labor Relations Board (NLRB) precedent for the conceptof a "single employer" relationship between the District andCounty Superintendent.Under federal precedent, according to theAssociation, two or more ostensibly separate entities may befound to constitute a "single employer" for bargaining andrepresentation purposes based on consideration of four factors:(1) Functional integration of operations; (2) centralized controlof labor relations; (3) common management; and (4) commonownership or financial control.If the "single employer"analysis is not found persuasive, the Association offers a "jointemployer" theory in the alternative.1818A "joint employer"The Association also suggests, alternatively, use of a"dual" employer concept, but does not further define it. The15

relationship can be found in the absence of common ownershipwhere two employers share in the control of labor relations andworking conditions of employees.(W.W. Grainger, Inc. v. NLRB(1988) 860 F.2d 244 [129 LRRM 2718].)The bottom line for theAssociation is that many COE employees are also employed by theDistrict and are, in both capacities, supervised by Districtadministrators.Finally, the Association, relyingon State of California(Department of Personnel Administration) (1990) PERB Decision No.794-S (State of California), argues that the CountySuperintendent has failed to carry the requisite burden ofdemonstrating the proposed unit modification is more appropriatethan the existing unit configuration.ISSUEShould the existing certificated bargaining unit be modifiedto remove those employees employed by the County Superintendent?If so, should those employees be placed in a separate unit withcontinued representation by the Association?DISCUSSIONJurisdictionBoth the District and the County Superintendent are publicschool employers within the meaning of the EERA, the Associationis a recognized employee organization within the meaning of theBoard, in San Francisco Community College District (1986) PERBOrder No. Ad-153, rejected adding a third concept to the "singleor joint" employer equation.16

EERA, and the employees who are the subject of this petition areemployees within the meaning of the EERA.Single v. Joint EmployerBoth the Board19 and federal courts20 have observed thatthe distinct concepts of "single employer" and "joint employer"are often used incorrectly as interchangeable terms.InBrowning-Ferris, the court held:[A]s the Supreme Court itself has recognized,the two concepts approach the issue of "whois the employer," from two differentviewpoints. As such, different standards arerequired for each[.]The Browning-Ferris court, citing Radio and Television BroadcastTechnicians Local Union 1264 v. Broadcast Service of Mobile, Inc.(1965) 380 U.S. 255 [58 LRRM 2545] (Broadcast Service). definedthe "single employer" concept as follows:A "single employer" relationship exists wheretwo nominally separate entities are actuallypart of a single integrated enterprise sothat, for all purposes, there is in fact onlya "single employer." The question in the"single employer" situation, then, is whetherthe two nominally independent enterprises, inreality, constitute only one integratedenterprise.[Italics in original.]The Browning-Ferris court also noted that, under BroadcastService, four factors are examined to answer whether a "singleemployer" relationship is present under the particular facts of acase:(1) Functional integration of operations; (2) centralized"Turlock School Districts (1977) EERB Order No. Ad-18(Turlock). (Prior to January 1, 1978, PERB was known as theEducational Employment Relations Board (EERB).)20NLRB v. Browning-Ferris Industries of Pennsylvania, Inc(CA 3, 1982) 691 F.2d 1117 [111 LRRM 2748] (Browning-Ferris).17

control of labor relations; (3) common management; and (4) commonownership or financial control.Citing NLRB v. Greyhound Corp. (1964) 376 U.S. 473 [55 LRRM2694] as the lead case, the Browning-Ferris court held that the"joint employer" conceptdoes not depend upon the existence of asingle integrated enterprise and thereforethe above-mentioned four factor standard isinapposite. Rather, a finding that companiesare "joint employers" assumes in the firstinstance that companies are "what they appearto be" -- independent legal entities thathave merely "historically chosen to handlejointly . . . important aspects of theiremployer-employee relationship." NLRB v.Checker Cab Co. 367 F.2d 692, 698, 63 LRRM2243 (6th Cir. 1966).In "joint employer" situations no finding ofa lack of arm's length transaction or unityof control or ownership is required, . . ."[i]t is rather a matter of determining whichof two, or whether both, [employers] control,in the capacity of employer, the laborrelations of a given group of workers." NLRBv. Condenser Corp. of America [128 F.2d 67]. . . Thus, the "joint employer" conceptrecognizes that the business entitiesinvolved are in fact separate but that theyshare or co-determine those matters governingthe essential terms and conditions ofemployment. [Citations omitted; italics inoriginal.]PERB PrecedentThe Board has twice directly addressed the question ofwhether two school districts could be considered, for purposes ofcollective negotiations and representation, a "single employer."In Turlock, the essential facts before the Board were asfollows.The Turlock Joint Union High School D

PLUMAS COUNTY TEACHERS ASSOCIATION, CTA/NEA, Exclusive Representative. Representation Case No. SA-UM-645 (SA-RR-563) PROPOSED DECISION (1/14/99) ) Appearances: Stroup & de Goede by Bryan G. Martin, Attorney, for Plumas County Superintendent of Schools; Ramon E. Romero, Attorney, for Plumas County Teachers Association, CTA/NEA.