• Certificated Employees Placed On 39-Month Reemployment List under Education Code Section 44978.1 Remained Employees of School District While On That List
  • April 7, 2009 | Author: Diana D. Halpenny
  • Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
  • In Felicijan v. Santa Ana Educators Association, (PERB Decision No. 2008, March 10, 2009), the Public Employees Relations Board (“PERB”) considered whether a certificated employee who has been placed on a 39-month reemployment list under Education Code section 44978.1 is an “employee” for purposes of the duty of fair representation under the Educational Employment Relations Act (“EERA”). PERB held that a certificated employee placed on a reemployment list pursuant to section 44978.1 remains an employee of the school district throughout the 39-month period.

    Christine L. Felicijan and Wayne Hetman were certificated employees of the Santa Ana Unified School District (“District”) and members of a bargaining unit represented by the Santa Ana Educators Association (“Association”). District placed both Felicijan and Hetman on a 39-month reemployment list pursuant to Education Code section 44978.1 because both employees had exhausted their leave but they were still unable to perform their duties due to medical reasons.

    Felicijan and Hetman brought an unfair practice charge alleging that Association breached its duty of fair representation when it failed to represent them in a dispute with the District over inappropriate material in their personnel files. The administrative law judge ruled that for the period of time that Felicijan and Hetman were on the reemployment list, they were not “employees” under the EERA and Association had no duty to represent them at that time.

    The EERA provides at Government Code section 3544.9 that an employee organization that is certified as an exclusive bargaining representative must “fairly represent each and every employee in the appropriate unit.” “Employee” is defined under the EERA as “any person employed by a public school employer except persons elected by popular vote, persons appointed by the Governor of this state, management employees, and confidential employees.” The question before PERB was whether Felicijan and Hetman, who were on a 39-month reemployment list, where employees under the EERA while they were on that list, so that the union would owe them a duty of fair representation.

    Education Code section 44978.1 provides that when a certificated employee has exhausted all available sick leave, but “is not medically able to resume the duties of his or her position, the employee shall, if not placed in another position, be placed on a reemployment list for a period of 24 months if the employee is on probationary status, or for a period of 39 months if the employee is on permanent status.” When the employee becomes medically able to return to work “the certificated employee shall be returned to employment in a position for which he or she is credentialed and qualified.” Section 44978.1’s language is mandatory because it requires that the certificated employee shall be returned to a position and reinstatement is not conditioned on the availability of a vacant position. The legislative history of section 44978.1 “contains nothing to indicate the Legislature intended placement on the 39-month reemployment list to end the employment relationship between the certificated employee and the school district.”

    In contrast, under Education Code section 45192, when a classified employee is placed on a 39-month reemployment list because he or she is not medically able to assume the duties of his of her position, reinstatement is not guaranteed. Section 45192 provides, in part, “When available, during the 39-month period, the person shall be employed in a vacant position in the class of the person’s previous assignment over all other available candidates except for a reemployment list established because of lack of work or lack of funds, in which case the person shall be listed in accordance with appropriate seniority regulations.” Under section 45192, when a person on a 39-month reemployment list is able to return to work and a vacant position exist, that person will have a rehire preference over other candidates. However, that person is not guaranteed a reinstatement. A similar reemployment preference exists under Education Code section 45195 for a classified employee who has suffered a nonindustrial accident or illness. Under both section 45192 and 45195, placement of a classified employee on a 39-month reemployment list ends that person’s employment, according to PERB.

    PERB concluded that a school district’s placement of a certificated employee on a 39-month reemployment list pursuant to section 44978.1 does not constitute a separation from service and that a person placed on such a list remains an employee of that district throughout the 39-month period. Accordingly, PERB concluded that Felicijan and Hetman were District employees while they were on the reemployment list and that Association owed them a duty of fair representation while they were on the list. PERB reversed the decision of the administrative law judge and remanded the matter back to that judge to conduct a hearing on the merits of Felicijan’s and Hetman’s allegations.