San Francisco Unified School District (PERB 0023E)

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STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
SAN FRANCISCO UNIFIED SCHOOL DISTRICT,
Employer,
and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 960, SAN FRANCISCO SCHOOL ADMINISTRATORS
DIVISION,
Employee Organization,
and
UNITED ADMINISTRATORS OF SAN FRANCISCO,
Employee Organization,
and
SAN FRANCISCO CLASSROOM TEACHERS ASSOCIATION,
CALIFORNIA TEACHERS ASSOCIATION,
Employee Organization,
and
SAN FRANCISCO FEDERATION OF TEACHERS,
AMERICAN FEDERATION OF TEACHERS, AFL-CIO,
Employee Organization.
Case No. SF-R-419
EERB Decision No. 23
September 8, 1977
Appearances: Keith V. Breon, Attorney, San Francisco Unified School District;
Rubin Tepper, Attorney, San Francisco Classroom Teachers Association; Tom Sinclair,
Attorney, Teamsters Local 960; Stewart Weinberg, Attorney, San Francisco Federation
of Teachers Local 61; Reynold Colvin, Attorney, United Administrators of San
Francisco; James E. Ballard, President, San Francisco Federation of Teachers
Local 61; Dennis Chew, Negotiations Consultant, California Teachers Association.
Before Alleyne, Chairman; 	Gonzales and Cossack Twohey, Members.
OPINION AND ORDER
This case is before the Educational Employment Relations Board on the
International Brotherhood of Teamsters, Local 960, San Francisco School
Administrators' 	exceptions to the hearing officer's decision concluding
that a unit is appropriate for the purpose of meeting and negotiating,
providing an employee organization becomes the exclusive representative:

Certificat~d Supervisory Unit, 	to include all
pos1t1ons desi gnated as Director, 	Supervisor,
Assistant Supervisor, 	Principal andAssistant
Principal, 	and exclude all members of the
Superintendent ' s Cabinet and the Legal Officer .
The Board has considered the record and the attached proposed decision in
light of the exceptions 	filed 	and adopts the proposed order .
7' 	/ 	1 	7 	/ 	I
By: 	Raymon.a J. Gonzales, Member 	Reginald Alleyne, 	Chairman
Dated : 	September 8, 	1977
Jerilou Cossack Twohey, 	dissenting :
I 	disagree with both the procedural and substantive ruling of the majority
in this case.
I
' 	' 	' 	' 	., Procedurally, 	the maJor1ty has apparently, 	although not expl1c1tly,1 sustained
the Executive Assistant's rejection of the District's exceptions 	to the Hearing
Officer ' s Proposed Decision. 	I would reverse the Executive Assistant and con-
sider the District's exceptions on the merits .
The. facts 	in this resp~ct . c3:re straightforw~rd . 	. 	The Hearing Officer issued
the Proposed Decision on June 10 , 	1977 . 	In the Proposed Decision the Hearing
Officer stated that, 	pursuant to EERB Rule 33380, 	the parties had seven calendar
days from receipt of the Proposed Decision within which to 	II file II exceptions .
,
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The District did file a bona fide appeal . 	The majority has not addressed
the appeal , 	it has simply ignored it. 	Such failure of the majority to inform
the District of the disposition of its appeal not only constitutes a denial of
due process 	(Lambert v. 	California, 	355 u. s. 	225, 	228 	(1957 ) ), 	but also may
render the majority order a nullity or may result 	in the remand of the entire
matter 	(Hadley v. 	City of Ontario, 	43 Cal.App.3d 121, 	128-129 	(1974 ) ; S.E.C. v.
Chenery Corp. , 	318 U.S. 	80 	(1943) ) .

The District received the Proposed Decision on June 13, 1977. 	It deposited
its exceptions in the mail on June 20, 1977 and they were received on June 21,
1977. 	However, the Executive Assistant concluded that in order to be timely
pursuant to PERB Rule 33380, they must have been received on June 20, 1977.
The District appealed the Executive Assistant's rejection of its exceptions.
The appeal is based on two grounds: 	first, that the size and complexity of
the District made ascertaining the governing board's position on whether or
not to file exceptions nearly impossible within the time allowed; and second,
that United Administrator's response to the exceptions included a response to
both the District's and the Teamsters' exceptions.
Teamsters, who had filed timely exceptions of their own, join the District
in urging the Board to reverse the Executive Assistant and consider the District's
exceptions. 	The United Administrators urge that the Board sustain the Executive
Assistant and reject the District's exceptions.
2
Rule 33380 provides:
33380. 	Exceptions to Hearing Officer Decision.
(a) 	A party may file with the Board an original and
four copies of a statement of exceptions to the proposed
decision, and supporting brief, within seven calendar days
after receipt of the proposed decision. 	The statement of
exceptions shall:
(1) State the specific issues of procedure, fact,
law or policy to which each exception is taken;
(2) Identify the part of the recommended decision
to which each exception is taken;
(3) Designate by page citation the portions of
the record relied upon for each exception;
(4) State the grounds for each exception.
(b) 	No reference shall be made in the statement of
exceptions to any matter not contained in the record of the
case.
2Neither the San Francisco Classroom Teachers Association nor the San Francisco
Federation of Teachers have filed briefs with the Hearing Officer or the Board at
any stage of these proceedings. 	They became parties to this case by virtue of
their interest in representing a unit of non-supervisory, non-managerial certifi-
cated employees.
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(c) 	An exception not specifically urged shall be
waived.
(d) 	The party shall serve a copy of the statement and
supporting brief upon each party to the proceeding. 	A state-
ment of service shall be filed with the Board.
(e) 	The filing of the statement of exceptions submits
the case to the Board itself.
The majority has apparently sustained the Executive Assistant's interpretation
of this rule equating filing with physical receipt in the Board's offices.
This is an unreasonable and unwarranted interpretation.
It is well-established that an appellate body is generally reluctant
to permit minor procedural defects to preclude an examination of an actual
controversy.3 This is true in the California courts and even more so in an
administrative agency. 	In the instant case particularly, where United
Administrators, 	the only party whose position was opposite that of the District,
had in fact addressed the District's exceptions, 	the majority's rejection of
this sound and accepted principle is unfounded. 	Furthermore, 	the majority's
adoption of a rigid and inflexible interpretation of Rule 33380, whose time
requirements are at best severe, 	ignores the obligation of the Board to reconcile
the rights of the District and those of the United Administrators. 	In this
case the United Administrators had, 	in fact, 	themselves treated the District's
exceptions as timely filed; United Administrators responded to both the Teamster's
and the District's exceptions. 	In these circumstances and given the severe time
constraints of the Board's rules, 	I would have considered the District's exceptions.
3
See Pesce v. Department of Alcoholic Beverage 	Control, 51 Cal.2d 310,
313 	(1958):
See Gibson v. Unemployment Insurance Appeals Board, 9 Cal.3d 494, 108
Cal.Rptr. 1, 509 (1973) where the Supreme Court concluded that the agency and
the superior court had erred in denying consideration of the merits of an
appeal filed three days late. 	See also Flores v. Unemployment Appeals Board,
30 Cal.App.3d 681, 106 Cal.Rptr. 543 (1973).
See Gonzales v. State Personnel Board, 76 Cal.App.3d. 364, 	Cal.Rptr.
(1977).
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II
Substantively, 	I disagree with the majority's conclusion that the directors
and supervisors are not management employees.
The Teamsters urge that the Board reconsider the interpretation of the
definition of management employee contained in Section 3540.l(g) of the EERA as
enunciated in Lompoc Unified School District;6 United Administrators does not.
Supervisors, by definition, are those who have the authority to hire, fire,
transfer, 	discipline, assign work or effectively recommend any of these actions.
Supervisors, therefore, possess significant responsibilities for administering
district programs. 	Management employees are defined by Section 3540.l(g) as
those "...in a position having significant responsibilities for formulating
district policies or administering district programs." 	Applying this language
literally would mean that supervisors are management employees. 	Sections 3540.l(j)
and 3545(b)(2) grant negotiating rights to supervisors; Section 3543.4 denies
negotiating rights to management employees. 	In reconciliation of these apparently
conflicting sections of the EERA, Dr. Gonzales and I, as the majority, concluded
in Lompoc that in order to be considered a management employee within the meaning
of Section 3540.l(g), one must possess significant responsibility both for
administering district programs and for formulating district policies.
The record amply demonstrates, as the hearing officer documented, that
the directors and supervisors in the instant case possess great discretion
and responsibility for administering district programs. 	What is at issue
here is the discretion and responsibility of directors and supervisors in
formulating district policy. 	The hearing officer concluded, and the majority
agreed, that they have no role in formulating policy. 	I disagree; rather the
weight of the evidence establishes that they possess significant responsibility
for formulating district policy.
While we should not lightly deprive employees of the rights afforded them
by the EERA, neither should we lightly deprive school districts of a sufficient
core of management employees to administer its affairs free from any conflict
of interest which would arise if such person or persons negotiated as members
of an employee organization.
There are 132 schools in the District. 	The average daily attendance is
approximately 68,000. 	The District employs approximately 4,932 certificated
employees.
6 EERB Decision No. 13, March 17, 1977.
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The chief administrative officer of the district is the superintendent.
The District is divided along two separate functional lines: 	instruction and
business. 	Each division is under the direction of a deputy superintendent.
There is one associate superintendent who reports to the deputy superintendent
of business and one associate superintendent who reports to the deputy superintendent
of instruction. 	The instruction division is further divided into four geographic
areas, 	each under the authority of an assistant superintendent. 	Some of the
directors and supervisors at issue here report directly to the deputy superintendent
of instruction; some directly to the associate superintendent; and some to the
assistant superintendent. 	Some of the supervisors report to a director.
There are four areas in which the weight of the evidence establishes that
directors and supervisors are significantly involved in the formulation of district
policy. 	While not all of the directors and supervisors perform all of these
functions, 	it appears that most of them perform at least two. 	First is the
evaluation of existing programs. 	Evaluation includes modification of,
addition to or deletion from those programs for which the directors and supervisors
are responsible. 	Directors and supervisors regularly make recommendations about
these programs; their recommendations are followed in most cases. 	Thus, the
supervisor of the mentally handicapped testified that he decides that "a particular
thing" should be done in the instructional program and submits his recommendations
to his superior. 	He testified that his recommendations have been followed "in
most cases." 	The same supervisor further testified that in a program such as
that for the mentally handicapped, 	"the population is changing considerably" and
"therefore, 	the program direction has to be modified to meet the needs of those
children." 	Another supervisor testified that in the course of administering the
contract with an outside agency he independently determines the needs of students
and "reinterprets" the contract to procure the desired services. 	When asked if
he sought the approval of his superior before doing this, he testified, 	"I have
been doing this in the course of my job...until someone tells me not to, 	I will
continue to do it."
Second is the development of new policies and programs. 	A music supervisor
testified that he was under instruction from the superintendent to plan for a
magnet creative arts school. 	His responsibilities in this regard consist of
coordinating meetings with various interested faculty and community persons and
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synthesizing the suggestions and options into a single document which contains
recommendations. 	In other projects his recommendations have generally been
followed. 	Another person, the director of the integration 	department, testified
that she recommended that the current plan to redesign the school district did
not meet the requirements of the court-ordered integration plan under which the
District is presently operating. 	Her recommendation to reconsider the redesign
plan was not followed. 	However, 	she further testified that her recommendation
about how "this might be controlled" was adopted by the governing board. 	In
addition, 	she has taken an active part at governing board meetings on this
topic.
Third is the preparation and administration of the budget for various
programs. 	Several directors and supervisors prepare the budget of the programs
for which they are responsible, 	including the guidelines within which the budgets
are to be administered. 	Although once adopted the budget must be administered in
accordance with the guidelines approved by the governing board, 	the guidelines
are generally those articulated by the director or supervisor in the original
preparation. 	Thus, 	the supervisor of the mentally handicapped testified that
he prepares a recommended budget which set forth the specific needs of the
John L. Roberts Development Center. 	Once the budget is adopted, his approval
is required for the purchase of such items as instructional material, equipment,
maintenance and field trips. 	Another supervisor testified that he prepares
five program budgets which are rarely altered; 	in fact, he testified that
"[the budget] pops out of the computer pretty much exactly the way I put it in."
Finally, 	directors and supervisors prepare and disseminate policy directives.
There are at least three ways through which policy formally is articulated in
the District: 	through formal adoption by the governing board and incorporation
into a document called "Board Policies," through the regulation manual, and
through operational directives. 	The testimony was contradictory regarding the
role played by directors and supervisors in the formulation of "Board Policies"
and the regulation manual; however, it is clear from the record that they
prepare operational directives in their designated areas. 	The operational
directives may interpret policy, outline various options available under the
policy, or evaluate the impact of one policy on another. 	These directives are
used by others to explain a particular program or policy to on-site administrators
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and interested members of the community. 	For example, 	one supervisor testified
that he prepared a policy for the intermediate school program which outlines
the types of classes which may be offered and establishes priorities among
than.
In sun, 	directors and supervisors are at the heart of the District's policy
formulation. 	Essentially, 	their duties consist of making operative the broad
policy directives of the governing board and the superintendent . 	While the
governing board and the superintendent establish the skeleton of District policy,
directors and supervisors flesh out the detailed characteristics . 	Furthermore,
they generally speak with the authority of their superiors and are clearly
understood to do so. 	Where, 	as here, 	directors and supervisors exercise sub-
stantial discretion, 	the process by which broad policies are rendered operational
necessarily determines the limits of the policy. 	The directors and supervisors
occupy executive-type positions and are closely aligned with management as 	true
representatives of management . 	Accordingly, 	I find them to be management
employees within the meaning of Section 3540 .1 (g) 	.
r- 	-· - 	-
.iferilou Cossack Twohey, Member 	"
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_______________ )
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
SAN FRANCISCO UNIFIED SCHOOL DISTRICT,
Employer,
and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Local 960, San Francisco School
Administrators Division
Employee Organization,
and
UNITED ADMINISTRATORS OF SAN FRANCISCO
Employee Organization,
and
SAN FRANCISCO CLASSROOM TEACHERS
ASSOCIATION, CALIFORNIA TEACHERS
•ASSOCIATION
Employee Organization,
and
SAN FRANCISCO FEDERATION OF TEACHERS,
AMERICAN FEDERATION OF TEACHERS, AFL-CIO,
Employee Organization
Case No. SF-R-419
PROPOSED DECISION
Appearances: 	Keith V. Breon, Attorney, San Francisco USD; Rubin Tepper, Attorney,
San Francisco Classroom Teachers Association; Tom Sinclair, Attorney, Teamsters
Local 960; 	Stewart Weinberg, Attorney, San Francisco Federation of Teachers Local
61; Reynold Colvin, Attorney, United Administrators of San Francisco; James E. Ballard,
President, San Francisco Federation of Teachers Local 61; Dennis Chew, Negotiations
Consultant, California Teachers Association.
Jeff Paule, Hearing Officer
PROCEDURAL HISTORY
The United Administrators of San Francisco 	(hereinafter "United Administrators")
filed a request for exclusive representation with the San Francisco Unified School
District (SFUSD) on April 1, 1976 for a certificated supervisory unit comprised of

'
principals, assistant principals, supervisors, assistant supervisors, directors and
administrative assistants, excluding those employees who are on the Superintendent's
Cabinet.
The International Brotherhood of Teamsters, Local 960, San Francisco School
Administrators Division (hereinafter "Teamsters") filed an intervention 	on April 20,
1976 and proposed a supervisory unit nearly identical to the United Administrator's.
The SFUSD filed its decision with respect to the request for recognition and
intervention on May 7, 1976 contending that all of the above-mentioned positions are
management employees as that term is defined by Government Code Section 3540.l(g).1/
A unit determination hearing in this matter was conducted during October through
December, 1976, by Board agent James Pinnell producing over 2,000 pages of transcript.2/
During the course of the hearing, several stipulations were agreed upon by the
parties, as follows:
1. 	That the United Administrators and the Teamsters are
employee organizations within the meaning of the
1/ The pertinent Government Code Sections are:
3540.l(g): "Management employee" means any employee in a position having
significant responsibilities for formulating district policies
or 	administering 	district programs. 	Management positions
shall be designated by the public school employer subject to
review by the Educational Employment Relations Board.
3540.l(m).: "Supervisory employee" means any employee, regardless of job
description, having authority in the interest of the employer
to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or the responsi-
bility to assign work to and direct them, or to adjust their
grievances, or effectively recommend such action, if, in con-
nection with the foregoing functions, the exercise of such
authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
3540.l(c): "Confidential employee" means any employee who, in the regular
course of his duties, has access to, or possesses information
relating to, his employer's employer-employee relations.
2/
-/ 	The San Francisco Classroom Teachers Association and the San Francisco
Federation of Teachers became parties to the hearing. 	Both organizations pri-
marily were interested in a unit of certificated classroom teachers. 	On
February 16, 1977, the San Francisco Federation of Teachers was certified as
the exclusive representative of an appropriate unit of classroom teachers
following a representation election.

3
Educational Employment Relations Act (EERA);
2. 	That all members of the Superintendent's Cabinet are
management employees; 3/ and
3. 	That the position of Legal Officer is managerial.
During the hearing, 	the Teamsters amended its intervention contending that
the principals and assistant principals alone constitute an appropriate unit. 	Also,
during the hearing, the SFUSD maintained that the Director of Administrative
Research; Supervisor of Position Control, Salary and Comparability Section; and
the Supervisor of Certificated Personnel are management or_ confidential employees.
ISSUES
1. 	Whether the International Brotherhood of Teamsters, Local 960,
San Francisco School Administrative Division, is an employee organization within
the meaning of Government Code Section 3540.l(d).
2. 	Whether all Principals, Assistant Principals, Directors
(excluding those Directors on the Superintendent's Cabinet), and Supervisors
(excluding those Supervisors on the Superintendent's cabinet) are management
employees within the meaning of Section 3540.l(m).
3. 	Whether the Director of Administrative Statistical Research; Supervisor
of Position Control, Salary and Comparability 	Section; and the Supervisor of Certi-
ficated Personnel, if found not to be management employees, are confidential
employees within the meaning of Government Code Section 3540.l(c).
4. 	Whether, if the positions stated in number two, above, are found
be supervisory, these positions constitute an appropriate supervisory unit, and if
not, what is an appropriate supervisory unit(s).
li 	The Superintendent's Cabinet consists of the Superintendent, Deputy
Superintendents, Associate Superintendents, Assistant Superintendents, Admini-
strative Assistants to the Superintendent, Director of Budget and Finance,
Director of Federal and State Programs, Director of Personnel, Director of
Budget and Planning, Supervisor of Human Relations, Employee Relations Officers
and the Supervisor of Public Information.

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DISCUSSION AND
DETERMINATION OF ISSUES
Structure and Organization of the San Francisco Unified School District
Inasmuch as the unit sought to be represented in this case consists of alleged
supervisory employees, it is helpful to discuss the structure of the SFUSD as it
relates to the positions in dispute herein.
The SFUSD is comprised of 132 schools of which 97 are elementary, 29 secondary
and 6 are "special" (i.e., Special Education for the Handicapped). 	The District has
an average daily attendance of approximately 68,000 and there are approximately
4,932 certificated employees of which approximately 280 are in dispute in this case.
The Superintendent of Schools is the highest employee position within the District.
The Superintendent works in conjunction with the Superintendent's Cabinet. 	The
Superintendent's Cabinet consists of the Superintendent, Deputy Superintendents,
Associate Superintendents, Associate Superintendents, Assistant Superintendents, Admini-
strative Assistants to the Superintendent, Director of Budget and Finance, Director
of Federal and State Programs, Director of Personnel, Director of Budget and Planning,
Supervisor of Human Relations, Employee Relations Officers and the Supervisor of
Public Information. 	The Superintendent's Cabinet formulates District policy, subject
to approval by the school board, on a wide variety of subject matters including but
not limited to organization of the District, budgeting of positions, vacation schedules,
assignments to various committees, formulation of a grievance procedure, summer school
programs and evaluation of special programs within the District.
Prior to the 1976-1977 school year, the District was organized on a city or
District-wide basis with separate divisions for elementary and secondary schools.
The special schools also operated on a city-wide basis. 	In 1976, the Superintendent
and the Superintendent's Cabinet drastically restructured the city-wide organizational

..
5
concept in favor of an "area" concept. 4/ Under the new organizational structure,
the District is divided into four areas 	(or "quads") designated simply as Area I,
Area II, Area III and Area IV. 	Each area contains approximately an equal number of
elementary and secondary schools and is supervised by an Assistant Superintendent
(commonly called an Area Superintendent). 	Each Area Superintendent has four Super-
visors who report directly to the Area Superintendent. 	All other Supervisors
employed by the District work in various departments of the District on a district-
wide basis. 	The various departments and their Directors 	(i.e., Department of Bi-
lingual Education, Children's Center Department, Creative Arts Department) also
operate on a district-wide basis. 	Although the Supervisors and Directors basically
operate on a district-wide basis, 	each is assigned to a particular Area and reports
to an Area Superintendent. 	Some departments operate on a district-wide basis and
come under the jurisdiction of an Associate Superintendent 	(i.e., Department of
Integration).
'
The positions of principal and assistant principal at each of the schools in
the District did not change in 1976. 	Persons holding these positions work at a
single school site.
Status of Teamsters, Local 960
On the 14th day of the hearing, 	the United Administrators first
raised the issue of the status of the Teamsters, Local 960, as an employee
organization within the meaning of the 	EERA.5/ 	The United Administrators'
4/ It 	is unclear from the record whether the Board of Education ever 	formally
approved this change. 	It seems clear, however, 	that at least at the time of
the hearing in this matter, the District was operating under the new "area" concept.
5/ Government 	Code 	Section 	3540.l(d) 	states:
"Employee organization" means any organization which includes employees of a
public school employer and which has as one of its primary purposes repre-
senting such employees in their relations with that public school employer.
"Employee organization" shall also include any person such an organization
authorizes to act on its behalf.

protest comes not only too late but is unconvincing.
The parties, on the first day of the hearing, stipulated that the Teamsters,
Local 960, qualified as an employee organization within the meaning of the EERA..
As stated by one leading commentator, "A stipulation is an agreement ... relating to
a matter involved in a judicial proceeding. 	It may relate to evidence or facts, and
if it is not in excess of the attorney's authority, and conforms to procedural
requirements, it results in a judicial admission removing the issue from the case."
(Witkin, California Evidence, Section 505.) 	(emphasis added)
Even assuming the United Administrator 	can be relieved from its stipulation,
its contention that the Teamsters, Local 960,does not qualify as an 	employee
organization 	within the definition of Section 3540.l(d) is without merit. 	The
simple fact that the Teamsters, Local 960, has members in the proposed unit and that
it filed an intervention in this case seeking to represent certain employees in the
SFUSD is evidence enough that the Teamsters, Local 960, has as one of its primary
purposes representing SFUSD employees in their employment relations with their employer.
The Teamsters, Local 960, is an employee organization within the meaning of
Section 3540.l(d).
Definition of Management Employee under the EERA
Government Code Section 3540.l(g) states as follows:
"Management employee" means any employee in a position
having significant responsibilities for formulating district
policies or administering district programs. 	Management
positions shall be designated by the public school employer
subject to review by the Educational Employment Relations
Board.
The District maintains that according to this statutory definition,
management employees include those who have significant responsibilities for
formulating district policy or administering district programs. 	The District
argues that the inclusion, in the disjunctive, of those who "administer district
programs" in the statute militates in favor of a finding that the positions in dispute
in this case are managerial.
_... 	6

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The Board considered, in Lompoc Unified School District, EERB Decision No. 13
(March 17, 1977), a decision in which each Board member wrote an opinion, the
EERA's unique definition of "management employee", and for different reasons, gave
little, if any, significance to the Legislature's use of the disjunctive in Section
3540.l(g). 	Chairman Alleyne, who wrote the lead opinion, followed National Labor
Relations Board precedent in finding that management employees are those "who are in
a position to formulate, determine and effectuate management policies." (citation
omitted). 	Member Gonzales, in concurrence, stated that he would consider NLRB and
federal case law as "supplemental only" inasmuch as the National Labor Relations
Act, as amended, does not define "management employee". 	He reaches the same con-
clusion as the Chairman however, by relying on "commonly accepted rules of statutory
construction". 	Member Gonzales stated: 	"No controlling significance can be
ascribed to the Legislature's use of the disjunctive in Section 3540.l(g). 	The
reference to significant responsibilities' in that section modifies both the formu-
lating [of] district policies' and the administering [of] district programs!"
(emphasis in original). 	Member Cossack concurred with Member Gonzales' rationale
concerning the construction of "management employee" as set forth in Section 3540. l(.g).
Accordingly, the construction to be given the statutory definition of "management
employee" is as follows:
A person must possess both of the functions delineated
in Section 3540.1 (g) to be found a management employee.
(See Oakland Unified School District, EERB Decision No. 15
March 28, 1977. 	Member Cossack at page 15.)6/
The closing comment by Member Gonzales in Lompoc, supra, is most apropos:
"Clearly, a person who has supervisory status has significant responsibility
for administering a school district's personnel program (footnote omitted).
Yet, nowhere in the definition of 'supervisory employee' as found in Section
3540.l(m) is there any indication 	that such a person also has significant
responsibility for formulating a school district's personnel policy. 	Therefore
to read Section 3540.l(g) in the disjunctive would qualify even supervisors
as management employees, which, in turn, would be inconsistent with the leg-
islative grant of negotiating rights to supervisors."

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Additionally, as the United Administrators argue, the definition of a "management
employee" should be interpreted narrowly. 	The overall scheme of the EERA
supports this construction. 	Negotiating rights are accorded supervisors under the
Act while management employees are not considered public employees (Section 3540.1(j)),
and they have no negotiating rights (Section 3543.4). 	Accordingly, "great care
must be exercised in determining who shall be considered a management employee".
Oakland, supra, at pages 6-7. 	See also Lompoc, supra, page 20.
Burden of Proof
In its post-hearing brief, the District devotes considerable attention
to the proposition that "the burden of proof is on the employee organization that
challenges the employer's designation of management positions". 	The District•
cites no cases in support of this argument, but simply contends that inasmuch
as Section 3540.l(g) places the authority in, and the responsibility on, the public
school employer to designate management positions (subject to review by the EERB), then
the employee organization challenging such designation must prove by a preponderance
of the evidence that the positions so designated are not management.
While the Board itself has not squarely confronted the question, of burden
of proof in representation cases the hearing officer is not without guidance on
this issue.
In Fremont Unified School District, EERB Decision No. 6 (December 16, 1976),
Chairman Alleyne, 	concurring in part, stated that he would require the party
alleging a confidential status the burden of proving it by a preponderance of
evidence. 	The same reasoning would apply to management employees since both
confidential and management employees are totally removed from the Act's coverage.
(Sections 3540.l(j) and 3543.4) 	In Oakland, supra, a three-opinion decision,
Member Cossack appears to indicate that the District was unable to show that psychol-
ogists who the District had designated as management were indeed management employees.

Finally, in Foothill-DeAnza Community College District, EERB Decision No. 10
(March 1, 1977), a unanimous decision, the Board held that the employer, who had
designated certain "grounds foremen" supervisory in order to exclude them from the
proposed rank and file unit, had not "sufficiently proven that the foremen exercise
any of the activities listed in Section 3540.l(m)...".
It seems clear that the party arguing for exclusion of employees from a proposed
unit by designating' employees as management so as to exclude them from a unit of
supervisory employees, has the burden of proving by a preponderance of evidence
that such employees possess the requisite authority and/or exercise the requisite
functions and duties to qualify them for exclusion from the proposed unit. 	In the
instant case, the burden of proof properly rests with the SFUSD to demonstrate that
the positions it has designated as management are indeed management.
Principals and Assistant Principals
The principals at the secondary and elementary school levels in the SFUSD
have no significant responsibilities for formulating district policy. 	The principals,
merely make policy recommendations with respect to the transfer and assignment of
personnel, staffing of schools and student-teacher ratios. 	Although principals often
serve on various committees which play a role in formulating district policy, the
committees include teachers and, moreover, are purely advisory (see Oakland, supra,
page 30). 	Finally, the principals did not have any significant input in formulating
the school district's policies as found in the"Board of Education Policy Manual".
The principals are responsible for the general management of the school.
such as supervising the first aid program at the school and setting priorities
with respect to custodial repairs. 	Additionally, the principals' decisions with
respect to the assignment of certificated and non-certificated personnel within the
school are generally not subject to review. 	This is the crucial difference: 	the
principals have the authority, and they exercise such authority, to make assignments
of personnel and to assign particular duties to employees as long as the principals
are complying with established school district policy—policies which have been
9

formulated by higher level district employees.
The SFUSD has not demonstrated that the principals have significant re-
sponsibilities for formulating district policies and accordingly, 	said positions
are not managerial, but are supervisory.
Having found the principals not to be management employees, 	it follows a
fortiori that the assistant principals are likewise not management employees.
The issue with respect to the assistant principals is whether they are supervisory.
The evidence adduced at the hearing indicates that the assistant principals
at both the secondary and elementary school levels participate in interviews of
prospective employees, 	recommend the transfer of employees, 	assign work to various
para-professionals employed at the school and evaluate teachers and non-certificated
employees.
As the Board indicated in Sweetwater, 	supra, the performance of only one of
the enumerated functions in Section 3540.l(m) 	is sufficient to find the disputed
position supervisory. 	It is found that the assistant principals are supervisors
within the meaning of the Act in that they assign work to employees, evaluate
teachers and effectively recommend the transfer of employees.
Directors
There are approximately 20 "Directors" employed by the SFUSD. 	As previously
stated, 	some Directors are in charge of departments which come under the jurisdiction
of a particular Area Superintendent, yet the department operates on a district-wide
basis. 	Other departments, such as the departments of Integration, Special Education
and Career Education, operate on a district-wide basis also, but the Directors of
these departments report to an Associate Superintendent.
Typical of the Directors' 	responsibilities is the administering and implementing
of district programs and policies. 	The Directors have no role in actually formulating
district policy. 	For instance, 	the Director of Integration does not determine
what the District's policy with respect to the integration of the SFUSD's
10

schools should be, but rather, the Director effectuates the policy which has been
formulated at the Board of Education level. 	The same is true for the Director of the
Bi-lingual Program. 	This Director does not formulate the bi-lingual program, but
does implement Board of Education policies with respect to this program.
The fact that some Directors report to an Area Superintendent and others report
to an Associate Superintendent is not significant. 	The various departments do
vary in size, and some Directors occupy "sensitive" positions, such as the Director
of Integration, but all Directors are responsible for the overall administration
of their particular departments. Dr. Lane DeLara, Associate Superintendent, who
has under his direct authority several departments, testified that 	he delegates
to the Directors of those departments the responsibility for the "functioning" of
the department. 	Clearly, this implies that the Directors are responsible for
carrying out and implementing the District's policies and programs.
A review of the entire record establishes that the Directors exercise supervisory
duties. 	Generally, the Directors have authority with respect to the assignment
transfer and selection of personnel within their departments. 	Additionally, Directors
make decisions regarding the directing and assigning of work to employees under their
supervision. 	When Dr. 	De Lara was asked whether the Directors under his jurisdiction
exercised their "independent judgment" with respect to making these decisions, he
answered, "Yes, very definitely."
It is found that Directors have no significant responsibility for formulating
district policy and are therefore not management employees within the meaning of
Section 3540.l(g). 	The Directors do exercise at least some of the functions
described in Section 3540.l(m) and are, therefore, supervisors within the meaning
of the Act.
11

Supervisors and Assistant Supervisors
The positions of Supervisor and Assistant Supervisor in the SFUSD function
either as an "Area Supervisor", who is subordinate to an Area Superintendent,
or as a "Supervisor," who is subordinate to a Director of a department. 	There
is only one Assistant Supervisor in the District, who is one of the four Supervisors
in the Children's Center 	Department, and any determination with respect to the
status of the other Supervisors in the various departments also applies to the
Assistant Supervisor.
There are four Supervisors in each of the four Areas or Quads in the District,
and these sixteen Supervisors report directly to their respective Area
Superintendent. 	The "Area Supervisors", as they are sometimes called, function
basically the same as department Directors. 	In fact, one of the "Supervisors" in
Area I is designated as a "Director" on the SFUSD's organization chart. 	The
individual who holds this particular position testified that he was not sure
whether he was a "Supervisor" or a "Director".
Each Supervisor in each Area has a particular area of responsibility involving
either the elementary schools in the Area, or the 	secondary schools, or one or
more of the "special" schools or programs. 	Common to all Area Supervisors is the
assistance they give the Area Superintendents in administering the operational
and instructional program of their particular Area. 	This includes visiting the
schools in the Area, making effective recommendations to the Area Superintendent
regarding the hiring, transferring and 	disciplining of employees. 	The Area
Supervisors also evaluate the work of the classroom teachers, assign and direct
the work of the employees, and recommend changes in the scheduling of employees.
The sixteen "Area Supervisors" exercise several of the functions enumerated in
Section 3540.l(m) and are thus supervisory employees within the meaning of the Act.
12

In addition to the Area Supervisors discussed above, there are
approximately 20 additional "Supervisors" within the District who work in
specific departments on a district-wide basis. 	Having found the Directors
of the various departments not to be management employees it follows that
the Supervisors, who are subordinate to the Directors, also are not manage-
ment employees. 	The issue with respect to the Supervisors is 	whether they
are supervisory employees within the meaning of Section 3540.1 (m). The
structure and organization of the various departments within the district
varies depending upon the size of the Department and the particular programs the
department administers. 	For instance, the Department of Education has in addition
to the Director, three Supervisors. 	Each Supervisor has a particular area of
responsibility, such as Supervisor of Programs for the Mentally Handicapped,
Supervisor of Programs for Speech, Hearing and Visually Handicapped and
Supervisor of Programs for Educationally Handicapped Youngsters. 	In other
•
departments the Supervisors are responsible for a particular function within
the department. 	For instance, in the Children's Center Department, one Supervisor
handles personnel functions for the department, another Supervisor is in charge
of nutrition education, and there is a Supervisor who is in charge of the
pre-kindergarten classes.
All Supervisors, however, have the authority to effectively recommend
the hiring, assignment and transfer of employees within the Supervisor's
particular area of responsibility. 	Also, many Supervisors evaluate the performance
of employees under their jurisdiction and in some instances recommend dismissal
or promotion of employees.
The Supervisors employed in the various departments exercise many of the
functions listed in Section 3540.l(m) of the Act and are therefore supervisory
employees.
13

Confidential Employees
The SFUSD contends that the positions of Director of Administrative Statistical
Research, Supervisor of Position Control, Salary and Comparability Section and
Supervisor of Certificated Personnel, if not found to be management, are confidential
employees within the meaning of Section 3540.l(c). 	Government Code Section 3540.l(c)
defines a confidential employee to be:
Any employee who, in the regular course of
his duties, has access to, or possesses
information relating to, his employer's
employer-employee relations.
The evidence with respect to the confidentiality of the above positions
was scant. 	The Director of Administrative Statistical Research performs duties
relating to projections of enrollment and this data is subsequently used in
negotiations. 	The Supervisor of Position Control provides records of employees
in the District and positions which are available to be filled, and this information
•
is then used in negotiations. 	The Supervisor of Certificated 	Personnel's primary
responsibility relates to the staffing of the elementary and secondary schools in
the district and of the federal and state funded programs. 	In addition, this
Supervisor prepares personnel reports which indicate the number of employees in
a given position. 	None of the three individuals is on the District's negotiating
team.
In Sierra Sands Unified School District, EERB Decision No. 2 (October 2, 1976),
the Board indicated that a confidential employee is one who has access to or
possesses information relating to the employer's employer-employee relations
which, "if made public prematurely might jeopardize the employer's ability to
negotiate with employees from an equal posture." 	The mechanical preparation of
data and information that is performed by the three individuals in the instant
case is even less than the work performed by employees in Sierra Sands, who were
14

found not to be confidential employees. 	Nothing in the record demonstrates
that the three employees perform duties considered confidential within the
meaning of the Act.
Appropriate Unit
The SFUSD contends, in arguendo, 	that the proposed units are not appropriate
because both principals and assistant principals are included in both the
United Administrator's and the Teamsters' 	proposed units.
The Teamsters' 	proposed unit consists of principals and assistant
principals only. 	It is unclear from the record whether the Teamsters feel
that Directors and Supervisors are management employees, or whether Directors and
Supervisors are supervisory employees but should be in a separate unit.
Government Code Section 3545(b) 	(2) disposes of both the District's and
the Teamsters' position. 	This section states that,
A negotiating unit of supervisory employees
shall not be appropriate unless it includes
all supervisory employees employed by the
district and shall not be represented by the
same employee organization as employees whom
the supervisory employees supervise.
The 	statute is clear and this issue requires no further 	discussion.7/ 	Having
found the Supervisors, Directors, Principals and Assistant Principals to be
supervisory employees within the meaning of Section 3540.l(m), a unit comprised
of all these employees is the only appropriate unit permitted by Section 3545(b) 	(2)
7/— 	What is unclear from the statute, but is not an issue in this case, 	is
whether a supervisory unit must include certificated and classified
supervisory employees. 	See Section 3545(b) 	(3). 	Both the United Adminis-
trators and the Teamsters requested only certificated supervisory
employee units.
15

PROPOSED DECISION
It is the Proposed Decision that:
The following unit 	is appropriate for the purpose of meeting and negotiating,
providing an employee organization becomes 	the exclusive representative:
Certificated Supervisory Unit, 	to include all positions
designated as Director, 	Supervisor, 	Assistant Supervisor,
Principal and Assistant Principal, 	and exclude all
members of the Superintendent's Cabinet and the Legal
Officer.
The parties have seveμ calendar days 	from receipt of this proposed decision
in which to file exceptions in accordance with Section 33380 of 8 California Admin-
istrative Code. 	If no party files 	timely exceptions, 	this proposed decision will
become a 	final order of the Board on June 22, 	1977 and a Notice of Decision will
issue from the Board.
Within ten workdays after the employer posts the Notice of Decision the employee
organizations shall demonstrate to the Regional Director at least 	30 percent support
in the above unit. 	The Regional Director shall conduct an election at 	the end of 	the
posting period if: 	(1) 	more than one employee organization qualifies 	for the ballot
or 	(2) 	only one employee organization qualifies 	for the ballot and the employer does not
grant voluntary recognition.
Dated: 	June 10, 	1977
Jeff Paule
Hearing Officer
16

)
_______________ )
STATE OP CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
SAW FRANCISCO UNIFIED SCHOOL DISTRICT,
Employer
and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 960, SAN FRANCISCO SCHOOL ADMINISTRATORS
DIVISION,
Enployee Organization
and
UNITED ADMINISTRATORS OF SAN FRANCISCO,
Enployee Organization
and
SAN FRANCISCO CLASSROOM TEACHERS ASSOCIATION,
CALIFORNIA TEACHERS ASSOCIATION,
Enployee Organization
and
SAN FRANCISCO FEDERATION OF TEACHERS,
AMERICAN FEDERATION OF TEACHERS, AFL-CIO,
Enployee Organization
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 	SF-R-419
EERB Decision No. 	23
ORDER
The Educational Employment Relations Board directs that:
The following unit is appropriate for the purpose of meeting and negotiating,
providing an employee organization becomes the exclusive representative:
Certificated Supervisory Unit, to include all positions designated
as Director, Supervisor, Assistant Supervisor, Principal and
Assistant Principal, and exclude all members of the Superintendent's
Cabinet and the Legal Officer.
Within ten workdays after the employer posts the Notice of Decision, the
employee organizations shall demonstrate to the Regional Director at least 30 percent
support in the above unit. 	The Regional Director shall conduct an election at the

end of the posting period if : 	(1) more than one enployee organi zation qualifies
for the ballot or 	(2 ) 	only one enployee organizati on qual i fies 	for the ballot
and the employer does not grant voluntary recognition.
Educational Employment Relati ons Board
by
I
Stephen Barber
Executive Assistant to the Board
9/ 8/ 77

STAlE OF CALIFORNIA 	EDMU ND G. BROWN JR., Govemor
EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
923 12th Street, Suite 201
Sacramento, Ca li fornia 	95814
(916) 322-3088
September 9, 	1977
San Francisco Unified School District
135 Van Ness Avenue
San Francisco CA 	94104
International 	Brotherhood of 	Teamsters
Local 960
43 Lansing Street
San Francisco CA 	94101
United Administrators 	of San Francisco
P . 	0. 	Box 890
San Francisco CA 	94101
San Franci sco 	Classroom Teac hers Ass' n .
701 T arava l 	Street
San Fra nci sco CA 	94116
San F ra n cisco 	Federatio n 	of Teache rs
AFT, AFL-CIO
655 14th Street
San Francisco CA 	94114
RE: 	Case No. 	SF-R - 419
Enclosed 	is a 	copy of 	the Order portion of 	the decision adopted by the Educa-
tional Employment 	Relations Board concerning the 	San Francisco Unified School
District's exception to the hearing officer's proposed decision dated June 10, 	1977.
Upon completion, 	the 	full 	text of 	the decision will be forwarded 	to the
parties .
Sincerelv.
Charles L . 	Cole
Executive 	Director
Enclosure
CLC/tz
cc 	Keith Breon, 	Esq.
Breon, 	Galgani & Godino
100 Bush Street, 	Suite 428
San Francisco CA 	94104
Rubin Tepper, 	Esq.
845 Page Mill Road
Palo Alto CA 	93404
Tom Sinclair, 	Esq.
100 Bush Street
San Francisco CA 	94104
Stewart Weinberg, 	Esq .
Van Bourg, 	Allen, 	Weinberg, 	Williams & Roger
45 Polk Street
San Francisco CA 	94102
Reynold Colvin, 	Esq .
Robert Links, 	Esq.
Jacobs, 	Blanckenburg, 	May & Colvin
111 Sutter Street, 	Suite 1800
San Francisco CA 	94104
James Ballard
655 Fourteenth Street
San Francisco CA 	94114