Before Parrish and Parker, Commissioners

Although military JROTC instructors might have difficulty in obtaining permanent employee status because of lack of certification and qualifications should ROTC programs be terminated, military JROTC instructors partially funded by federal government were included in unit containing regularly-funded teachers because military instructors possessed sufficient expectancy of continued employment. Community of interest issue raised by partial federal funding was controlled by PERCs past decisions regarding CETA-funded employees. [See HILLSBOROUGH COUNTY BOARD OF COUNTY COMMISSIONERS, 5 FPER Para. 10019 (FLPERC 1979); CITY OF TAMARAC, 4 FPER Para. 4070 (FLPERC 1979)].

CETA counselors did not share community of interest with unit of regularly-funded instructional personnel after school board downgraded CETA counselor to noninstructional, non-certificated, support services classification. Absence of common supervision and fact that CETA counselors did not attend regular faculty meetings further evidenced lack of community of interest.

Jade T. Moore, Largo. representative for petitioner.

Dr. Ron Stone, Clearwater, representative for respondent.

ORDER

PER CURIAM. On October 9, 1979, the Pinellas Classroom Teachers Association filed a petition pursuant to Florida Administrative Code Rule 3813-13.10 seeking to have the Commission determine whether the job classifications of JROTC Instructors and CETA Counselors should be included or excluded from the certified bargaining unit represented by Petitioner. The parties have filed a joint stipulation of facts, including job descriptions of the positions concerned. Therefore, there being no disputed issues of material fact which would require an evidentiary hearing. the petition has been considered pursuant to Section 120-57(2), Florida Statutes (1979).

Petitioner takes the position that both job classifications should be included within the certified unit. Respondent opposes the inclusion of either.

FINDINGS OF FACT

1. The position of JROTC instructor was in existence when the bargaining unit was certified (February 24, 1976) and attendant duties have not changed since. However, there is no evidence that its unit placement was ever considered.

2. The six JROTC instructors are considered members of the instructional staff, are included on the School Board's instructional personnel list, and are provided the opportunity for full participation in faculty meetings and on faculty committees.

3. The Commission takes administrative notice of the fact that the acronym RESRVOL refers to a federal program for recruiting adult volunteers to help senior citizens; not the JROTC instructors. Pinellas American Federation Teachers and Pinellas Classroom Teachers Association and School Board (#'Pinellas CountY, PERC Order No. 76E-65-848 (February 24, 1976).

4. The employment contract between the sponsoring iilitary organizations and the School Board concerning the ROTC instructors specifies that they are to be minimally compensated in an amount equal to the difference between the pay and allowances they received while they were full-time, active duty members of the armed forces, and the pay they receive from the federal government as retired military personnel. The Board is reimbursed for one half of that amount by the respective military branch involved.

5. JROTC instructors perform instructional services for the Board under a contract (U.S. Code Title X, Section 2031) which is separate and distinct from those under which other teachers are employed.

6. JROTC instructors are eligible for sick leave benefits and receive annual leave in excess of that granted to other teachers. Their compensation has never been negotiated between the parties.

7. The Pinellas County Commission is the prime sponsor for CETA employees who are paid by the School Board of Pinellas County on a "draw" basis from funds appropriated through the CETA project.

8. In June of 1978, the position of CETA counselor was designated as a supporting service position and, with the exception of four certificated counselors in the CETA program at that time who were allowed to petition to return to instructional status. all CETA counselors employed after that date were designated as supporting service personnel by virtue of the tact that certification was no longer required for employment.

9. Unlike school-based secondary or elementary guidance counselors who are required to possess a state teaching certification and a masters degree in guidance and counseling, CETA counselors are not considered as members of the instructional staff nor are they paid according to the teacher's salarv schedule. They are employed on the basis of their history if work experience in vocational preparation and an ability to work compatibly with students and potential employers.

10. All certificated personnel are recommended and approved for employment on an annual basis by the Board based on the superintendent*s recom mend ations considering program need. appropriate certification, and satisfactory performan6e evaluations. All employee positions within the bargaining unit have a reasonable expectancy of continued employment on an annual basis. Those employees holding tenure continuing contract employment) are guaranteed placement in some capacity unless dismissed with cause. Not all positions within the bargaining unit are eligible for tenure.

11. All contracts for CETA counselors are annually renewable and, because they are designated as a supporting service position, they are non instructional personnel and therefore not entitled to continuing contract under the provisions of Section 231.30. Florida Statutes.

12. CETA counselors would only be considered for a position within the instructional bargaining unit if they were able to meet the certification required in the applicable academic or vocational field and, if they intended to seek an academic guidance counselor position. would additionally have to meet the necessary teaching requirements and possess a masters degree.

13. The functions of CETA counselors concern extraschool interaction with employers or training agencies preparing students in a work experience environment. This contrasts with the work done by guidance counselors which is primarily intraschool involving structuring the academic and/or vocational schedules for students, administering and interpreting standardized tests, college placement counseling and reference, and personal crisis counseling.

14. Academic guidance counselors work on a day-to-day basis with parents, teachers and administrators within the school to enhance the prospects of student success. CETA coun%elots rely upon teachers. guidance personnel. and administrators to provide feedback on the success of participants in work programs and academic classes. CETA counselors are involved with only a small segment of the total counseling function and are expected to refer students to the guidance counselors when problems arise.

15. The programs of the CETA counselors are not supervised by the Division of Student Personnel Services as are those of tile guidance counselors, but rather by CETA supervisors in the Division of Vocational Technical Education.

16. CETA counselors generally do not attend regular faculty inectings although they are informed of any procedural decision which may affect them. Separate faculty meetings for CFTA counselors and their supervisors are held independently of school faculty meetings.

ANALYSIS

Inasmuch as the facts in this case reveal that the position ofJR0TC instructor was not specifically treated at the time of unit certification, and that the position of CETA counselor has been substantially changed since unit clarification, the Commission determines that the petition is properly filed. The public employer contends that CETA counselors should be excluded from the bargaining unit because:

(1) Their job responsibilities cannot be considered comparable to the role expectations of certified guidance counselors currently included in the bargaining unit;

(2) On June 5, 1978, an agreement was signed between tile parties which allowed fully certified CETA counselors the option ofbeing placed on the teacher's salary schedule with the understanding that all future CETA counselors would not be eligible for inclusion in the bargaining unit in light of their supporting services status;

(3) The annually renewable nature of CETA employment increases tile likelihood of termination at the close of funding periods resulting in the absence of a reasonable expectancy of continued employment and, therefore, the CETA counselors should not be afforded the same securities and benefits of regularly appointed instructors.

The public employer contends that the JROTC instructors should be excluded from the bargaining unit because their affiliation with the federal government presents complex salary issues destroying the community of interest enjoyed by members of tile bargaining unit.

Petitioner contends that both job classifications should be included within the bargaining unit. Specifically, the employee organization asserts that CETA counselors belong in the unit because : (1) They perform duties identical to those positions within th e unit. (2) Employees holding identical job titles are included within the unit; (3) They are neither managerial nor supportive in function.

Preliminary to discussion.of the inclusion or exclusion of tile two employee classifications in issue, it should be recognized that job classifications cannot be added or deleted from all existing certified bargaining unit through the arbitration process or by agreement among the parties. Definition of bargaining units is the sole province of the Commission. §447.307, Fla. Stat. (1979).

The facts reveal that the JROTC instructors: (1) Are included on the instructional personnel list. (2) Receive fringe benefits front tile board as part compensation for their instructional services, (3) Are treated as instructional staff and given opportunity for full participation on faculty committees; (4) Have a reasonable expectancy of continued employment from year to year: (5) Receive a salary for their instructional services which is funded jointly by the School Board and the military on all equal basis.

The fact that JROTC instructors are partially federally funded makes the Commission's past decisions regarding CETA-funded employees applicable to a consideration of what impact this should have in determining the status of the military instructors. As explained in District Council No. 66, IBPAT. AFL-CIO v. Hillsborough County v Board of County Commissioners, v Hillsborough County Employees Association, AFSCME, Local No. 167. AFL-CIO, 5 FPER ¶ 10019 (1979):

"The Commission has consistently rejected the assertion that the fact that the ultimate source of funding for employee salaries is federal funds mandates the exclusion of such employees from units of regularly funded employees. Amalgamated Transit Union v. City of Tampa, 4 FPER ¶ 4042 (1978). Instead, the Commission has examined the evidentiary record to determine whether federally funded employees, including CETA employees, share a community of interest with regularly funded employees. Federation of Public Employees v. City of Tamarac, 4 FPER ¶ 4070 (1978). This inquiry is analogous to that which must be made in any representation case to determine the appropriate unit placement of any disputed classification of employees."

In Federation of Public Employees v. City of Tamarac, supra, the Commission stated:

"A factor to which the Commission gives prime consideration in determining the unit placement of CETA employees is the reasonable expectancy of continued employment which may culminate in permanent employee status....

Where the evidence discloses that CETA participants, such as Title VI project employees. are employed for a definite, limited period of time without the possibility of re-employment, such employees will be excluded from bargaining units composed of regular employees. But where the evidence discloses that CETA participants who share similar duties, benefits, and super. vision with regular employees are employed in positions the duration of which is limited only by the availability of CETA funds, such employees will be included in units of regular employees.

Therefore, even though the JROTC instructors may have difficulty in obtaining permanent employee status because of the lack of certification and qualifications necessary for employment as a civilian instructor should the ROTC programs be terminated, the Commission finds the JROTC instructors to possess an expectancy of continued employment sufficient to negate federal funding as an exclusionary factor in determining their unit placement.

Accordingly, in light of the facts of this case, the Commission finds the JROTC instructors to share a community of interest with other bargaining unit members and to be encompassed by the unit description.

The Commission finds no need to resolve the issue of whether the CETA counselors have a reasonable expectancy of continued employment because it concludes that, by the School Board's decision in 1978 to downgrade the CETA counselor to a non instructional, non-certificated, support services classification. it effectively eliminated the vital occupational thread tying this position to others included within the certified instructional unit.

The absence of common supervision and the fact that CETA counselors do not attend regular faculty meetings are further evidence of the lack of community of interest between the CETA counselors and other bargaining unit members.

Accordingly, the Commission determines that the job classification of CETA counselor is not appropriate for inclusion within the certified instructional unit represented by Petitioner.

The Commission ORDERS that the unit defined in Case Nos. 8H-RC-754-1130 and 8H-RC-754-1214. certification number 207 (February 24, 1976), be clarified to include the JROTC instructors and to exclude the CETA-funded counselors. Since the JROTC instructors are encompassed by the existing unit description of those included; to wit, "other personnel included on the instructional list" it will not be necessary to alter that portion of the unit definition. The clarified unit description is as follows:

INCLUDED:

All full-time certified instructional personnel, including but not limited to itinerant instructional personnel, librarians. psychologists, classroom teachers, guidance counselors, occupational specialists, social workers, curriculum assistants, curriculum coordinators, learning disability specialists, diversified education coordinators, vocational teacher coordinator, health coordinator, secondary education coordinator, self renewal personnel, enhanced learning personnel, work experience teacher, adult home economics teacher and other personnel included on the instructional personnel list who do not effectively recommend hiring and firing or effectuate budget policy (or reasonably influence the budget procedure.)

EXCLUDED:

All managerial/confidential personnel and all supervisory persons, including but not limited to: superintendents, associate superintendents, assistant superintendents, principals, directors, assistant or associate directors, registrars and deans, attendance officers, RESRVOL personnel, substitute and part-time teachers, and CETA-funded counselors.

It is so ordered.