Decision 2397E – Fremont Unified School District

SF-UM-721-E

Decision Date: November 14, 2014

Decision Type: PERB Decision

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Perc Vol: 39
Perc Index: 63

Decision Headnotes

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.01000 – In General/Definition of Appropriate Unit

The threshold question in bargaining unit cases under EERA will always be whether the positions in question are certificated or classified within the definitions of those terms found in the Education Code. The rebuttable presumption described in Peralta Community College District (1978) PERB Decision No. 77 that all classroom teachers are appropriately placed in the same bargaining unit comes into play only after it is determined the positions are certificated. (EERA, § 3545(b)(3).

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.08000 – Classroom Teachers

Behavioral intervention specialists were not “certificated employees” within the meaning of section 3545(b)(3) of the EERA, and therefore could not be added to the certificated unit. The default classification for school district employees is “classified service,” and there must be strong evidence of the legislative intent for the position to be considered certificated before PERB will include that position in the certificated bargaining unit. In order for a position to be certificated, it must require certification as defined by the Education Code. A Board Certified Behavior Analyst license was not intended to substitute for a credential issued by the State. “Certificated person” is one who possesses a credential or certificate issued by some arm of the state, not a non-state actor. The behavior intervention and assessment functions of the behavioral intervention specialist may be provided by professionals who do not possess a California Commission on Teacher Credentialing or county-issued credential or certificate. Education Code section 44065 provides appropriate guidance in determining whether job functions are to be considered “certificated.” The threshold question in bargaining unit cases under EERA will always be whether the positions in question are certificated or classified within the definitions of those terms found in the Education Code. The rebuttable presumption described in Peralta Community College District (1978) PERB Decision No. 77 that all classroom teachers are appropriately placed in the same bargaining unit comes into play only after it is determined the positions are certificated. (EERA, § 3545(b)(3).

1500.00000 – MISCELLANEOUS ISSUES; EDUCATION CODE
1500.02000 – Education Code Sections Considered by PERB (By Number)

Education Code section 44065 provides appropriate guidance in determining whether job functions are to be considered “certificated.”

1500.00000 – MISCELLANEOUS ISSUES; EDUCATION CODE
1500.03000 – Education Code Sections Considered by PERB (By Subject)

In order for a position to be certificated, it must require certification as defined by the Education Code. A Board Certified Behavior Analyst license was not intended to substitute for a credential issued by the State. “Certificated person” is one who possesses a credential or certificate issued by some arm of the state, not a non-state actor. The behavior intervention and assessment functions of the behavioral intervention specialist may be provided by professionals who do not possess a California Commission on Teacher Credentialing or county-issued credential or certificate.