Decision 0884E – Modesto City School District

Although the practical effect of modifying a unit under PERB Regulation 32781(b)(1) may be to transfer work out of the unit, it is not an unlawful transfer because it is done in accord with the process PERB requires the employer to observe; p. 11. [The Board's decisions in Regents of the University of California (California Nurses Association) (1989) PERB Decision No. 722-H and Mt. San Antonio Community College District (1983) PERB Decision No. 334] indicate the removal of work from a bargaining unit may lawfully occur as a collateral affect of a unit modification when PERB's statutory and regulatory procedures are followed; pp. 12-13.

Although the practical effect of modifying a unit under PERB Regulation 32781(b)(1) may be to transfer work out of the unit, it is not an unlawful transfer because it is done in accord with the process PERB requires the employer to observe; p. 11. [The Board's decisions in Regents of the University of California (California Nurses Association) (1989) PERB Decision No. 722-H and Mt. San Antonio Community College District (1983) PERB Decision No. 334] indicate the removal of work from a bargaining unit may lawfully occur as a collateral affect of a unit modification when PERB's statutory and regulatory procedures are followed; pp. 12-13.

Although the practical effect of modifying a unit under PERB Regulation 32781(b)(1) may be to transfer work out of the unit, it is not an unlawful transfer because it is done in accord with the process PERB requires the employer to observe; p. 11. [The Board's decisions in Regents of the University of California (California Nurses Association) (1989) PERB Decision No. 722-H and Mt. San Antonio Community College District (1983) PERB Decision No. 334] indicate the removal of work from a bargaining unit may lawfully occur as a collateral affect of a unit modification when PERB's statutory and regulatory procedures are followed; pp. 12-13.

[Education Code sections 45104, 45103 and 44066] indicate that a school district must designate a position as "classified" unless the duties to be performed require certification in which case the position must be designated as certificated. Thus, when the District creates a position it must, at least tentatively, designate it either classified or certificated (Healdsburg Union High School District (1984) PERB Decision No. 375) and is prohibited from requiring certification unless it is required by law or is an occupational qualification; p. 17.

It is necessary to first determine the status of the petitioned for position and the duties under the Education Code. Bargaining history and community of interest criteria are then used to ascertain into which classified or certificated bargaining unit the position should be placed; p. 17. Intent of a petition is determined by the content of the petition; p. 8. Duty to bargain over transfer of bargaining unit work is not a condition precedent to a determination of a unit modification petition; p. 14. Level of benefits afforded employee in position before and after proposed unit modification is irrelevant to whether unit modification should be granted. should be granted.

Allegations of an unlawful transfer of bargaining unit work are properly raised as an unfair practice charge and not in a unit modification proceeding; p. 10; pp. 11-12, proposed dec.

[Education Code sections 45104, 45103 and 44066] indicate that a school district must designate a position as "classified" unless the duties to be performed require certification, in which case the position must be designated as certificated. Thus, when the District creates a position it must, at least tentatively, designate it either classified or certificated (Healdsburg Union High School District (1984) PERB Decision No. 375) and is prohibited from requiring certification unless it is required by law or is an occupational qualification; p. 17.

32781(b)(1) The removal of work from a bargaining unit may lawfully occur as a collateral affect of a unit modification petition when PERB statutory and regulatory procedures are followed, pp. 12-13. Board rejected MTA's contention that the duty to bargain should be imposed as a condition precedent to granting a unit modification petition under PERB Regulation 32781(b)(1); pp. 10-13.