Berkeley Unified School District (PERB 0101E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
BERKELEY UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
BERKELEY FEDERATION
	OF
	TEACHERS,
LOCAL
	1078,
	CFT/AFT,
Employee
	Organization.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BERKELEY UNIFIED SCHOOL DISTRICT,
Employer,
and
BERKELEY FEDERATION OF TEACHERS,
LOCAL 1078, CFT/AFT,
Employee Organization. 
Case
	No.
	SF-UC-32
PERB
	Decision
	No.
	101
August 	28, 	1979
Case No. SF-UC-32
PERB Decision No. 101
August 28, 1979
Appearances: 	Garry
	G.
	Mathiason
	and
	Harlan
	Van Wye,
(Littler,
	Mendelson,
	Fastiff
	and
	Tichy)
	for
School
	District;
	Robert
	J.
	Bezemek,
	Attorney
	(Van
Weinberg
	and
	Roger)
	for 	Berkeley
	Federation 	of
1078,
	CFT/AFT.
Appearances: 	Garry G. Mathiason and Harlan Van Wye, Attorneys	
Attorneys
(Littler, Mendelson, Fastiff and Tichy) for Berkeley Unified
Berkeley
	Unified
School District; Robert J. Bezemek, Attorney (Van Bourg, Allen,	
Bourg,
	Allen,
Weinberg and Roger ) for Berkeley Federation of Teachers, Local	
Teachers, 	Local
1078, CFT/AFT.
Before Gluck, Chairperson; and Gonzales, Member*	
Before
	Gluck,
	Chairperson;
	and
	Gonzales,
	Member*
DECISION
The present case arises in the context of a joint unit
clarification petition filed by the Berkeley Unified School
District (hereafter District) and the Berkeley Federation of
Teachers, Local 1078, CFT/AFT (hereafter Federation) to deter-
DECISION
The
	present 	case
	arises
	in
	the
	context 	of
	a
	joint 	unit
clarification 	petition 	filed
	by
	the 	Berkeley Unified
	School
District
	(hereafter
	District)
	and
	the 	Berkeley Federation 	of
Teachers,
	Local 	1078,
	CFT/AFT
	(hereafter
	Federation) 	to	
deter-
mine the management or supervisory status of various employees	
the
	management
	or
	supervisory
	status
	of 	various
	employees
within the District. 1
thin
	the
	District. 	The positions in question	
The
	positions 	in 	question
1
on June 	27, 	1977, 	pursuant 	to
	Government 	Code
	section3541.3(e), 	the
	District
	and
	Federation
	filed
	a
	joint 	petition
with 	the 	Public
	Employment
	Relations
	Board
	(hereafter
	PERB
	or
Board) for a change in unit determination. Previously, on	
Previous
March 9, 1977, pursuant to a directed election, the Federation
on June 27, 1977, pursuant to Government Code section
3541.3 (e), the District and Federation filed a joint petition
with the Public Employment Relations Board (hereafter PERB or
)
	for
	a
	change
	in 	unit
	de
	nation.
9, 	1977, 	suant 	to
	a
	direc 	tion,
Board Member Moore did not participate in this decision.	*
)
)
)
)
)
)
)
)
)
)
)
*Board 	Member 	Moore
	did 	not 	participate 	in 	this 	decision.

are : 	1)
	woman
	studies
	director/Title
	IX
	coordinator,
2)
	department
	chairperson,
	3)
	teacher
	director,
	4)
counselor, 5) grade coordinator, 6) junior high school dean,
and
	7)
	head
	teacher.
are: 	1) woman studies director/Title IX coordinator,
2) department chairperson, 3) teacher director, 4) head	
head
counselor,
	5)
	grade
	coordinator,
	6)
	junior
	high
	school 	dean,
and 7) head teacher.
The
positions
	in 	question 	to
	be
	management 	and
	all
	but
hearing
	officer's
	proposed
	decision
	found 	none
studies director/Title IX coordinator and junior high school
dean
	to
	be
	supervisory.
	Exceptions
	to 	the
	proposed
were
	taken
	by
	both
	parties.
	The
	District
	contends
	that
	each 	of
the
	above
	categories 	of
	employees
	fall
	within 	the
The hearing officer's proposed decision found none of the	
of
	the
positions in question to be management and all but the woman	
the
	woman
studies
	director/Title
	IX
	coordinator
	and
	junior
	high
	school
dean to be supervisory. Exceptions to the proposed decision
decision
were taken by both parties. 	The District contends that each of
the above categories of employees fall within the statutory	
statutory
definitions of "management employee" (section 3540.1(g) )	
3540.l(g))
employeespermanent
All certified employees, all probationary or
was certified as the exclusive representative for a
unit 	including:
certificated
	employees
	and
	hourly
working
	eighteen
	(18)
	hours 	or
otherwise excluded; and substitute certi-
more per week on a regular basis and not
definitions
	of
	"management
	employee"
	(section
2
was
	certified
	as
	the
	exclusive
	representative
	for
	a
unit including:
All
	certified
	employees,
	all
	probationary
	or
permanent certificated employees and hourly
employees working eighteen (18) hours or
more
	per
	week 	on 	a
	regular 	basis
	and
	not
otherwise 	excluded;
	and
	substitute	
certi-
ficated	ficated personnel serving forty-four (44)	
personnel 	serving
	forty-four
	(44)
consecutive days as a substitute teacher i	
tive
	days
	as
	a
	substitute
	teacher 	in
the
	District;
	and
	excluding:
	all n
the District; and excluding: all manage-
pervisory and confidential employees.
2 Gov. Code section 3540.1(g) reads as follows:
'Management employee' means any employee in
a position having significant responsi-
bilities 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.
2
by
the
Management
or
bilities
a
'Management
2 
consecu
manage-
ment,	ment, su
supervisory
	and
	confidential
	employees.
employee'
	means 	any
	in
position
	having
	significant 	responsi-for 	formulating
	district 	icies
administering
	district
	programs.
positions 	shall
	be
	designated
	by
public 	school 	employer
	subject 	to 	review
the 	Educational
	Employment
	Relations
Board.
2
Gov. 	Code
	section 	3540.l(g) 	reads	
as	
follows:

nd
should, therefore, be excluded from the certificated unit
pursuant to section 3545 (b) (1) ."
and "supervisory employee" (section 3540.1(m) ) , a	and 	"supervisory 	employee" 	(section 	3540 .1 (m)), 3 and
should, 	therefore, 	be 	excluded 	from 	the 	certificated 	unit
pursuant 	to 	section 	3545(b) (1) . 4 The Federation, on the
The Board concludes that the woman studies director/
remaining positions are all supervisory.
Title IX coordinator is a management position, and that the
in the certificated negotiating unit.
management nor supervisory, and should, therefore, be included
other hand, is of the view that these positions are neither
The 	Federation, 	on 	the
other 	hand, 	is 	of 	the 	view 	that 	these 	positions 	are 	neither
management 	nor 	supervisory, 	and 	should, 	therefore, 	be 	included
in 	the 	certificated 	negotiating 	unit.
The 	Board 	concludes 	that 	the 	woman 	studies 	director/
Title 	IX 	coordinator 	is 	a 	management 	position, 	and 	that 	the
remaining 	positions 	are 	all 	supervisory.
DISCUSSION	DISCUSSION
section 3540.1(g) as "any employee having significant responsi-
A "management employee" is defined in Government Code
Management Status of Employees	Management 	Status 	of 	Employees
A "management 	employee" 	is 	defined 	in 	Government 	Code
section 	3540.l(g) 	as 	"any 	employee 	having 	significant 	responsi-
bilities 	for	rmulating district policies or administering	formulating 	district 	policies 	or 	administering
district programs." Although the statute is written in the	district 	programs." 	Although 	the 	statute 	is 	written 	in 	the
o	bilities for f
10 of text, infra.
Gov. Code section 3540.1(m) is quoted in full at page	33Gov. 	Code 	section 	3540.l{m) 	is 	quoted 	in 	full 	at 	page
10 	of 	text, 	infra.
44Gov. Code section 3545 (b) (1) reads as follows:
(b) In all cases:
Gov. 	Code 	section 	3545(b) (1) 	reads 	as 	follows:
3
(1) A negotiating unit that includes
classroom teaches shall not be appropriate
unless it at least includes all of the
teachers 	employed 	by 	the 	ic
, 	except 	management
visory 	,
employees.
(b) 	In 	all 	cases:
(1) 	A negotiating 	unit 	that 	includes
classroom 	teaches 	shall 	not 	be 	appropriate
unless 	it 	at 	least 	includes 	all 	of 	the
classroom teachers employed by the public
school employer, except management
employees, supervisory employees, and
confidential employees.
3

disjunctive the Board has previously concluded that a manage-
ment employee must possess significant responsibilities for
both formulating district policies and administering district
programs." 	The "formulating of district policies" requires
that an employee possess discretionary authority to develop or
modify institutional goals and priorities. 	The
"administering of district programs" requires authority to
implement district programs through the exercise of independent
judgement.
Applying this standard the Board finds only the woman
studies director/Title IX coordinator to be a management
employee.
Woman Studies Director/Title IX Coordinator
The women studies director/Title IX coordinator is
appointed by the District administration. She fulfills two
roles for the District: 	one, as director of the woman studies
program, and another as Title IX coordinator. 	She devotes
approximately 50 percent of her time to each function, and has
no teaching responsibility in connection with either. 	The
essence of the incumbent's bifurcated position is that of
5Lomp
Decision No. 13, at 20-21.
Hartnell Community College District (January 2, 1979)
EERB Decision No. 81, at 13.
71d., at 13.
disjunctive
	the
	Board
	has
	previously
	concluded
	that
	a	
manage-
ment 	employee 	must
	possess
	significant 	responsibilities
	for
both 	formulating
	district
	policies
	and
	administering
	district
programs.
5 The
	"formulating 	of
	district
	policies" 	requires
that
	an 	employee
	possess
	discretionary 	authority
	to
	develop
	or
modify
	institutional
	goals
	and
	priorities.
6 The
"administering 	of
	district
	programs"
	requires 	authority 	to
implement
	district
	programs
	through
	the
	exercise 	of
	independent
. 	d
JU	
gement.
7
Applying
	this
	standard 	the
	Board
	finds
	only 	the
	woman
studies
	director/Title
	IX
	coordinator
	to
	be
	a 	management
employee.
Woman
	Studies
	Director/Title
	IX
	Coordinator
The 	women
	studies
	director/Title
	IX
	coordinator
	is
appointed
	by
	the
	District
	administration.
	She
	fulfills
	two
roles
	for 	the
	District:
	one, 	as
	director
	of 	the
	woman
	studies
program,
	and
	another
	as
	Title
	IX
	coordinator.
	She
	devotes
approximately
	50
	percent 	of
	her 	time
	to
	each
	function,
	and
	has
no
	teaching
	responsibility 	in
	connection 	with
	either.
	The
essence 	of 	the 	incumbent's
	bifurcated position 	is 	that
	of
5Lompococ Unified School District (March 17, 1977) EERB	
Unified 	School
	District
	(March
	17,
	1977)
	EERB
Decision
	No.
	13,
	at
	20-21.
6
Hartnell
	Community
	College
	District
	(January 	2,
	1979)
EERB
	Decision
	No. 	81,
	at
	13.
7
Id.,
	at 	13.
4

insuring a sexually unbiased environment within the District.
She is required to work more hours than regular teachers and is
compensated at a rate above that of certificated employees.
For purposes of organization, we analyze the incumbant's dual
responsibility separately.
A. Woman Studies Program Director
As director of the woman studies program, the incumbent is
responsible for developing and implementing an appropriate
woman studies program at all levels throughout the District.
She works closely with teachers and administrators at the
various school sites, providing them with instructional
materials and assisting them in preparation of activities
relating to women studies. The director of women studies main-
tains a women studies resource center. She is continually
looking for materials to bring into the District, and is fre-
quently called upon to assess the sex fair quality of textbooks
which the school district hopes to adopt. The director is also
responsible for preparing and conducting inservice training
programs designed to "heighten awareness of sex fair curriculum
and practices in the District."
The women studies director carries out her responsibilities
with the assistance of a part-time classified and a part-time
certificated employee. The director has authority to direct
the work of both employees during that portion of their time
delegated to women studies. 	In addition, she has authority to
5
insuring 	a 	sexually 	unbiased 	environment 	within 	the 	District.
She 	is 	required 	to 	work 	more 	hours 	than 	regular 	teachers 	and 	is
compensated 	at 	a 	rate 	above 	that 	of 	certificated 	employees.
For 	purposes 	of 	organization, 	we 	analyze 	the 	incumbant's 	dual
responsibility 	separately.
A. 	Woman 	Studies 	Program 	Director
As 	director 	of 	the 	woman 	studies 	program, 	the 	incumbent 	is
responsible 	for 	developing 	and 	implementing 	an 	appropriate
woman 	studies 	program 	at 	all 	levels 	throughout 	the 	District.
She 	works 	closely 	with 	teachers 	and 	administrators 	at 	the
various 	school 	sites, 	providing 	them 	with 	instructional
materials 	and 	assisting 	them 	in 	preparation 	of 	activities
relating 	to 	women 	studies. 	The 	director 	of 	women 	studies 	main-
tains 	a 	women 	studies 	resource 	center. 	She 	is 	continu~lly
looking 	for 	materials 	to 	bring 	into 	the 	District, 	and 	is 	fre-
quently 	called 	upon 	to 	assess 	the 	sex 	fair 	quality 	of 	textbooks
which 	the 	school 	district 	hopes 	to 	adopt. 	The 	director 	is 	also
responsible 	for 	preparing 	and 	conducting 	inservice 	training
programs 	designed 	to 	"heighten 	awareness 	of 	sex 	fair 	curriculum
and 	practices 	in 	the 	District."
The 	women 	studies 	director 	carries 	out 	her 	responsibilities
with 	the 	assistance 	of 	a 	part-time 	classified 	and 	a 	part-time
certificated 	employee. 	The 	director 	has 	authority 	to 	direct
the 	work 	of 	both 	employees 	ing 	that 	port 	of 	their 	time
delegated 	to 	women 	stud 	s. 	In 	addit 	, 	she 	has 	authority 	to
5

discipline, evaluate, and adjust the working grievances of the
classified secretary.
The Board finds the incumbent's responsibilities as woman
studies director do not raise the position to the status of a
"management employee. " Admittedly, the woman studies director
has considerable discretion in running the women studies
resource center, in making budgetary allocations, and in deter-
mining courses to be taught and material to be used in the
women studies program. Such responsibilities, however, do not
amount to the "formulation of institutional goals or
priorities. " The responsibilities involved in maintaining a
women studies program are limited in scope and more akin to the
implementation of district policy than the actual formulation
of such policy. As the Board stated in Hartnell, "Management
status is not conferred upon employees because they possess
some limited authority to determine within established limits,
curriculum, course content or budgetary allocations. "8
B. Title IX Coordinator
As a condition to receiving approximately six million
dollars of federal funds, the District is required to prepare
and submit to the Department of Health, Education and Welfare
6
discipline, 	evaluate, 	and 	adjust 	the 	working 	grievances 	of 	the
classified 	secretary.
The 	Board 	finds 	the 	incumbent's 	responsibilities 	as 	woman
studies 	director 	do 	not 	raise 	the 	position 	to 	the 	status 	of 	a
"management 	employee." 	Admittedly, 	the 	woman 	studies 	director
has 	considerable 	discretion 	in 	running 	the 	women 	studies
resource 	center, 	in 	making 	budgetary 	allocations, 	and 	in 	deter-
mining 	courses 	to 	be 	taught 	and 	material 	to 	be 	used 	in 	the
women 	studies 	program. 	Such 	responsibilities, 	however, 	do 	not
amount 	to 	the 	"formulation of 	institutional 	goals 	or
priorities." 	The 	responsibilities 	involved 	in 	maintaining 	a
women 	studies 	program 	are 	limited 	in 	scope 	and 	more 	akin 	to 	the
implementation 	of 	district 	policy 	than 	the 	actual 	formulation
of 	such 	policy. 	As 	the 	Board 	stated 	in 	Hartnell, 	"Management
status 	is 	not 	conferred 	upon 	employees 	because 	they 	possess
some 	limited 	authority 	to 	determine 	within 	established 	limits,
curriculum, 	course 	content 	or 	budgetary 	allocations. 118
6
B. 	Title 	IX 	Coordinator
As 	a 	condition 	to 	receiving 	approximately 	six 	million
dollars 	of 	federal 	funds, 	the 	District 	is 	required 	to 	prepare
and 	submit 	to 	the 	Department 	Health, 	Education 	and 	Welfare
8Id., at 13.

various reports indicating their compliance with Title IX."
The Title IX coordinator is the individual designated by the
District to be responsible for gathering information requested
by HEW and insuring the District's compliance with Title IX
generally.
As Title IX coordinator, the incumbent has authority to
investigate various practices and policies of the District and
to implement changes where sex bias is found to exist. 	Her
authority to investigate is not limited to routine matters, but
may include such things as personnel policies, evaluation pro-
cedures, the letting of contracts, and the use of sexually
biased material. The Title IX coordinator has authority to
investigate such matters in great depth. Moreover, when she
finds a District policy or practice to be sexually discrimi
natory, the Title IX coordinator may bring it to the attention
of the appropriate administrator and direct that the practice
be changed.
The extent of the coordinator's authority to investigate
and institute changes is illustrated by testimony of the
director of instructional services, a District witness:
9Title IX of the Education Amendments of 1972, P. L.
92-318 (1972), as amended by P. L. 93-568 (1974) and P. L. 94-482
(1976) prohibits sex discrimination in federally assisted
education programs.
various 	reports 	indicating 	their 	compliance 	with 	Title 	rx. 9
The 	Title 	IX 	coordinator 	is 	the 	individual 	designated 	by 	the
District 	to 	be 	responsible 	for 	gathering 	information 	requested
by 	HEW 	and 	insuring 	the 	District's 	compliance 	with 	Title 	IX
generally.
As 	Title 	IX 	coordinator, 	the 	incumbent 	has 	authority 	to
investigate 	various 	practices 	and 	policies 	of 	the 	District 	and
to 	implement 	changes 	where 	sex 	bias 	is 	found 	to 	exist. 	Her
authority 	to 	investigate 	is 	not 	limited 	to 	routine 	matters, 	but
may 	include 	such 	things 	as 	personnel 	policies, 	evaluation 	pro-
cedures, 	the 	letting 	of 	contracts, 	and 	the 	use 	of 	sexually
biased 	material. 	The 	Title 	IX 	coordinator 	has 	authority 	to
investigate 	such 	matters 	in great 	depth. 	Moreover, 	when 	she
finds 	a 	District 	policy 	or 	practice 	to 	be 	sexually 	discrimi-
natory, 	the 	Title 	IX 	coordinator 	may 	bring 	it 	to 	the 	attention
of 	the 	appropriate 	administrator 	and 	direct 	that 	the 	practice
be 	changed.
The 	extent 	of 	the 	coordinator's 	authority 	to 	investigate
and 	institute 	changes 	is 	illustrated 	by 	testimony 	of 	the
director 	of 	instructional 	services, 	a 	District 	witness:
9Title 	IX 	of 	the 	Education 	Amendments 	of 	1972, 	P.L.
92-318 	(1972), 	as 	amended 	by 	P.L. 	93-568 	(1974) 	and 	P.L. 	94-482
(1976) 	prohibits 	sex 	discrimination 	in 	federally 	assisted
ion 	programs.
7

Question: In her review of the personnel policies of
the District, is her authority limited to superficial
matters of forms, such as changing names of job
titles, or does she have authority to go into matters
of more substance?
Answer: She has authority to go into matters in great
depth. For example, she had to review the entire set
of Board policies contained in two large volumes. 	And
her task then was to analyze and to assess to be
certain that the District would not be guilty of any
discriminatory practices.
Question: And where she found a practice that could
possibly be discriminatory, did she have the authority
to direct the change of that practice?
Answer : 	Yes.
The coordinator's power to seek out discriminatory practices
and effectively change those practices is, therefore, clearly
supported by the record.
In connection with her investigatory and reporting respons
sibilities, the Title IX coordinator develops surveys designed
to identify discriminatory policies and practices within the
District. A survey was conducted in the area of elementary
physical education, for example, and as a result of the survey,
and at the instigation of the Title IX coordinator, changes
were effectuated in the way junior high school girls were
required to dress for physical education.
The Title IX coordinator is also responsible for resolving
grievances relating to sex discrimination. Any person (parent
or District personnel) with a grievance related to sex discrim
ination may take it directly to the Title IX coordinator. 	In
8
Question:
	In 	her 	review
	of
	the 	personnel
	policies
	of
the
	District,
	is
	her
	authority
	limited 	to
	superficial
matters 	of
	forms, 	such
	as 	changing
	names
	of
	job
titles,
	or
	does
	she
	have
	authority 	to
	go
	into
	mattersof
	more
	substance?
Answer:
	She
	has
	authority
	to
	go
	into
	matters 	in
	great
depth.
	For
	example, 	she
	had
	to
	review
	the
	entire 	set
of
	Board
	policies
	contained 	in
	two
	large
	volumes.
	And
her
	task
	then
	was
	to
	analyze
	and
	to
	assess
	to
	be
certain 	that
	the
	District
	would
	not
	be
	guilty
	of
	any
discriminatory
	practices.
Question:
	And
	where
	she
	found
	a
	practice 	that
	could
possibly
	be
	discriminatory,
	did
	she
	have
	the
	authority
to
	direct
	the
	change
	of
	that 	practice?
Answer:
	Yes.
The
	coordinator's
	power
	to
	seek
	out 	discriminatory
	practices
and
	effectively
	change
	those
	practices
	is,
	therefore,
	clearly
supported	
by	
the 	record.
In 	connection 	with 	her
	investigatory
	and
	reporting 	respon-
sibilities,	
the
	Title
	IX
	coordinator
	develops 	surveys 	designed
to 	identify 	discriminatory
	policies
	and
	practices
	within 	the
District.
	A
survey
	was
	conducted
	in 	the 	area	
of	
elementary
physical 	education, 	for
	example,
	and
	as
	a
	result
	of 	the 	survey,
and
	at
	the
	instigation
	of 	the
	Title
	IX
	coordinator,
	changes
were
	effectuated 	in 	the
	way
	junior
	high 	school
	girls
	were
requir 	to 	dress
	ical
	education.
The
	Tit
	IX
	coordinator
	is
	also 	responsible 	for 	resolving
grievances 	relating 	to
	sex
	discrimination.
	Any
	person 	(parent
or
	District
	sonnel) 	with
	a
	grievance
	a
	to 	sex	
discr
ination	
may
	take
	it
	direct 	to 	the 	Title
	IX
	coordinator. 	In
8

one instance, a parent complained about a sexist statement in
one of the Districts' textbooks. The statement was brought to
the attention of the appropriate administrators and classroom
teachers, and now when the page containing the sexist statement
comes up, teachers will bring it to the attention of the
students and deal with it in the classroom.
Another primary responsibility of the Title IX coordinator
is to interpret Title IX policy for the District. When there
are Title IX matters to be considered, the coordinator partic-
ipates in meetings of the superintendent's administrative
cabinet. 	The coordinator also serves as a resource person for
the Board of Education, and may, on occasion, serve as the
District's spokesperson on Title IX matters.
To assist her in carrying out her responsibilities as both
woman studies director and Title IX coordinator, the incumbent
is granted discretionary control over a $5,000 budget. 	The
$5, 000 covers the cost of things such as questionnaires,
surveys, reproducing materials, and bringing consultants to
speak to groups of teachers. It also covers the cost of
developing and printing brochures related to Title IX, which
the incumbent is required to produce as part of her Title IX
responsibilities.
Upon the foregoing conclusions of fact relating to the
incumbent's role as Title IX coordinator, the Board finds the
woman studies director/Title IX coordinator to be a management
one
	instance,
	a
	parent
	complained
	about
	a
	sexist
	statement
	in
one
	of
	the
	Districts'
	textbooks.
	The
	statement
	was
	brought
	to
the
	attention
	of
	the
	appropriate 	administrators
	and
	classroom
teachers,
	and
	now
	when
	the
	page
	containing
	the
	sexist
	statement
comes
	up,
	teachers
	will
	bring
	it
	to 	the
	attention
	of 	the
students
	and
	deal
	with
	it
	in
	the 	classroom.
Another
	primary
	responsibility
	of 	the
	Title
	IX
	coordinator
is
	to
	interpret 	Title
	IX
	policy
	for 	the
	District.
	When
	there
are
	Title
	IX
	matters 	to
	be
	considered, 	the 	coordinator	
partic-
ipates	
in
	meetings
	of
	the
	superintendent's 	administrative
cabinet.
	The
	coordinator
	also
	serves 	as
	a
	resource 	person
	for
the
	Board
	of 	Education,
	and 	may, 	on
	occasion, 	serve
	as
	the
District's
	spokesperson
	on
	Title
	IX
	matters.
To
	assist
	her
	in 	carrying 	out
	her
	responsibilities
	as 	both
woman
	studies 	director
	and
	Title
	IX
	coordinator, 	the
	incumbent
is
	granted
	discretionary 	control
	over
	a
	$5,000 	budget.
	The
$5,000 	covers 	the
	cost 	of 	things
	such 	as
	questionnaires,
surveys, 	reproducing
	materials,
	and
	bringing 	consultants
	to
speak
	to
	groups
	of 	teachers.
	It
	also
	covers 	the 	cost 	of
developing
	and
	printing
	brochures
	related 	to
	Title
	IX,
	which
the
	incumbent
	is
	requir
	top
	as
	t
	of 	her
	Title
	IX
responsibilities.
Upon
	the 	foregoing 	conclusions 	of 	fact
	relati 	to 	the
incumbent's 	as
	Title
	IX
	coordinator,	
t 	Board
	finds	
t
woman
	studies 	director/Tit
	IX
	coordinator 	to
	be 	a 	management
9

employee. 	The Title IX coordinator, as noted above, has
This
authority to use independent judgement in identifying sexually
discriminatory practices and polices within the District.
authority to identify discriminatory practices is districtwide,
and not limited to routine matters. There is also evidence
that once a discriminatory practice has been identified the
Title IX coordinator has authority to direct a change in that
practice. Since the record demonstrates significant responsi-
bilities for formulating and administering District policy with
respect to the equal treatment of the sexes, the woman studies
director/Title IX coordinator is found to be a management
employee.
The Board finds it unnecessary to consider the supervisory
status of the woman studies director/Title IX coordinator
since, as noted above, the incumbent is excluded from the
certificated unit as a "management employee."
Supervisory Status of Employees
The supervisory status of an employee is governed by
section 3540.1(m) which reads as follows:
"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
adjust their grievances, or effectively
recomend such action, if in connection with
the foregoing functions, the exercise of
such authority is not of a merely routine or
10
employee.
	The
	Title
	IX
	coordinator,
	as
	noted 	above, 	has
authority
	to
	use
	independent
	judgement
	in 	identifying 	sexually
discriminatory
	practices
	and
	polices
	within
	the
	District.
	This
authority
	to
	identify
	discriminatory
	practices
	is 	districtwide,
and
	not
	limited 	to 	routine 	matters.
	There
	is
	also
	evidence
that
	once
	a
	discriminatory
	practice
	has 	been
	identified
	the
Title
	IX
	coordinator
	has
	authority 	to
	direct
	a
	change
	in
	that
practice.
	Since
	the
	record 	demonstrates
	significant	
responsi-
bilities	
for 	formulating
	and
	administering
	District
	policy
	with
respect 	to 	the
	equal 	treatment 	of 	the 	sexes, 	the
	woman
	studies
director/Title
	IX
	coordinator
	is
	found
	to
	be 	a 	management
employee.
The 	Board
	finds
	it
	unnecessary
	to 	consider 	the
	supervisory
status
	of 	the
	woman
	studies
	director/Title
	IX
	coordinator
since,
	as 	noted 	above,
	the
	incumbent
	is
	excluded
	from
	the
certificated
	unit
	as
	a 	"management
	employee."
Supervisory
	Status 	of
	Employees
The
	supervisory
	status
	of
	an 	employee
	is
	governed
	by
section
	3540.l(m) 	which
	reads 	as 	follows:
"Supervisory
	employee" 	means 	any
	employee,
regardless 	of 	job
	description,
	havi
aut
	ity
	int
	interest
	of 	the
	r
	to
hire, 	transfer,
	suspend,
	lay 	off, 	recall,
promote,
	discharge, 	assign,
	reward, 	or
discipline 	other
	employees, 	or 	the 	responsi-
bili	
to 	ass
	n 	work
	to 	direct
	them,
	or
just 	their 	grievances, 	or 	effectively
recomend 	such
	action,
	if
	in 	connection 	with
the 	foregoing 	functions, 	the 	exercise 	ofsuch
	authority 	is
	not 	of
	a 	merely 	routine 	or
10

clerical nature, but requires the use of
independent judgment.
It is well established that an employee need not possess
all of the enumerated functions to be a supervisor. 10
Rather the performance of any one of the enumerated actions or
the effective power to recommend such action, exercising inde-
pendent judgment, is sufficient to make one a supervisor within
the meaning of the Act. Il
Applying this standard, the Board finds each of the
remaining classifications in question to be supervisory.
Department Chairpersons
The department chairpersons are found to be supervisory
employees based upon their authority to assign classes, resolve
grievances, discipline department members, and complete formal
evaluation of department teachers. The facts are as follows:
Berkeley High School is divided into approximately fifteen
departments. 	These departments range in size from 4 to
23 teachers, and each is headed by a department chairperson.
Department chairpersons are selected by the principal of the
school from a list of candidates nominated by the department.
Each of the department chairpersons are released from some of
Sweetwater Union High School District (November 23,
1976) EERB Decision No. 4, at 12.
an Diego Unified School District
EERB Decision No. 8, at 9.
11
clerical
	nature,
	but
	requires
	the
	use
	of
independent
	judgment.
It
	is
	well
	established
	that
	an 	employee 	need
	not
	possess
all
	of 	the
	enumerated
	functions 	to
	be
	a
	supervisor.
10
Rather 	the
	performance
	of
	any 	one
	of
	the
	enumerated
	actions
	or
the
	effective
	power
	to
	recommend
	such
	action, 	exercising 	inde-
pendent	
judgment,
	is 	sufficient
	to
	make
	one
	a
	supervisor 	within
the
	meaning
	of
	the
	Act.
11
Applying
	this
	standard,
	the
	Board
	finds
	each
	of 	the
remaining
	classifications
	in 	question 	to
	be
	supervisory.
Department
	Chairpersons
The
	department
	chairpersons 	are
	found
	to
	be
	supervisory
employees 	based
	upon
	their 	authority 	to 	assign
	classes,
	resolve
grievances,
	discipline
	department
	members, 	and
	complete 	formal
evaluation 	of
	department
	teachers.
	The
	facts
	are 	as 	follows:
Berkeley
	High
	School
	is
	divided
	into
	approximately
	fifteen
departments.
	These
	departments 	range
	in
	size
	from 	4
	to
23
	teachers,
	and
	each
	is
	headed	
by	
a
	department
	chairperson.
Department
	chairpersons 	are 	selected
	by
	the
	principal 	of 	the
school
	from 	a
	list
	of 	candidates
	nominated 	by 	the 	department.
Each
	the 	department
	chairpersons 	are 	re
	ased
	om
	some
	of
10	
lOsweetwater 	Union 	High
	School
	District
	(November
	23,1976)
	EERB
	Dec1s1on 	No.
	4,
	at
	12.
1lsSan 	Diego
	Unified 	School
	District	(February 18, 1977)	( 	,
	1977)
EERB
	Dec1s1on 	No.
	8,
	at 	9.
11

their teaching duties to perform administrative duties outlined
below. 	They are each employed for a longer work year, and each
receives more compensation than that received by other teachers.
Department chairpersons are the instructional leaders of
their respective departments. The chairperson presides at
department staff meetings. They relay information from the
administration to the department and from the department back
to the administration. In conjunction with other members of
their department, the chairpersons prepare and submit to the
administration a schedule of classes to be taught and a list
matching teachers with classroom space. They submit orders for
supplies and recommend textbooks to be used within the
department.
Department chairpersons oversee the department with respect
to such things as punctuality, keeping classroom doors locked,
and proper utilization of conference hours. They have
authority to informally discipline department members for
breaches of department rules or procedures, and, if necessary,
may issue written reprimands or seek formal disciplinary
action. 	The chairpersons interview candidates seeking posi-
tions within the department. They coordinate interdisciplinary
programs with other department heads. They complete written
performance evaluations of teachers within their department and
are frequently called upon to resolve grievances of students
and staff.
12
their
	teaching
	duties
	to
	perform
	administrative 	duties 	outlined
below.
	They
	are
	each
	employed
	for
	a
	longer
	work
	year,
	and
	each
receives
	more
	compensation
	than
	that
	received 	by	
other
	teachers.
Department
	chairpersons 	are 	the
	instructional
	leaders
	of
their
	respective
	departments.
	The
	chairperson
	presides
	at
department
	staff
	meetings.
	They
	relay
	information
	from
	the
administration 	to
	the
	department
	and 	from
	the
	department 	back
to
	the
	administration.
	In
	conjunction
	with
	other
	members
	of
their
	department, 	the 	chairpersons 	prepare
	and
	submit
	to 	the
administration
	a
	schedule
	of
	classes 	to
	be
	taught
	and 	a
	list
matching
	teachers
	with 	classroom
	space.
	They
	submit
	orders 	for
supplies
	and 	recommend
	textbooks
	to
	be
	used
	within 	the
department.
Department
	chairpersons 	oversee 	the 	department 	with
	respect
to
	such
	things
	as
	punctuality,
	keeping
	classroom 	doors
	locked,
and
	proper
	utilization
	of 	conference 	hours.
	They 	have
authority 	to 	informally
	discipline
	department
	members
	for
breaches 	of
	department
	rules
	or 	procedures,
	and,
	if
	necessary,
may
	issue 	written
	reprimands 	or 	seek 	formal
	disciplinary
action.
	The
	chairpersons 	interview 	candidates 	seeking	
posi-
tions	
within 	the 	department.	
They	
coordinate
	interdisciplinary
programs 	with 	other 	department 	heads.
	They
	complete
	written
performance 	evaluations 	of	
teachers 	within 	their
	department 	and
are 	frequently 	called
	upon	
to 	resolve 	grievances 	of 	students
and
	staff.
12

The hearing officer found this position to be supervisory
based solely on the authority of the department chairperson to
effectively recommend disciplinary action. The department
chairpersons' authority to discipline department members is
clearly supported by the record. When a teacher breaches a
department rule or procedure, the chairpersons have authority
to meet with the teacher and request a correction of the
behavior. The department chairperson can also issue a written
reprimand and have it placed in the teacher's personnel file or
request formal disciplinary action for serious breaches.
The incumbents' role in assigning classes, evaluating
department members, and resolving grievances is also indic-
ative of the chairpersons' supervisory status.
Mr. Parker, principal of Berkeley High School, testified as
a District witness that the department chairpersons are
responsible for the assignment of classes and classrooms to
department members. This fact was verified by several
witnesses for the Federation. One Federation witness tes-
tified, for example, that as department chairperson he would
prepare a tentative schedule of classes to be taught and make
himself available to department members who wished to discuss
the courses they would like to teach or the times they would
like to teach it. The ultimate authority for assigning
13	13
The
	hearing
	officer
	found
	this
	position
	to
	be
	supervisory
based
	solely
	on
	the
	authority
	of
	the
	department
	chairperson
	to
effectively
	recommend
	disciplinary
	action.
	The
	department
chairpersons' 	authority 	to
	discipline
	department
	members
	is
clearly
	supported
	by
	the
	record.
	When 	a
	teacher
	breaches
	a
department
	rule
	or 	procedure, 	the 	chairpersons
	have
	authority
to
	meet
	with
	the 	teacher
	and
	request
	a
	correction
	of
	the
behavior.
	The
	department
	chairperson
	can
	also 	issue
	a
	written
reprimand
	and
	have
	it
	placed
	in
	the
	teacher's
	personnel
	file
	or
request
	formal
	disciplinary
	action
	for
	serious
	breaches.
The
	incumbents'
	role 	in 	assigning
	classes,
	evaluating
department
	members, 	and
	resolving 	grievances
	is
	also 	indic-
ative	
of 	the
	chairpersons' 	supervisory
	status.
Mr.
	Parker,
	principal 	of
	Berkeley
	High
	School,
	testified
	as
a
	District
	witness
	that
	the 	department
	chairpersons 	are
responsible 	for 	the
	assignment
	of 	classes
	and
	classrooms
	to
department
	members.
	This
	fact
	was
	verified
	by
	several
witnesses 	for 	the 	Federation.
	One
	Federation 	witness	
tes-
tified,	
for
	example,
	that
	as 	department
	chairperson
	he 	would
prepare
	a
	tentative
	schedule 	of 	classes 	to
	be
	taught
	and 	make
himself 	available 	to
	department
	members 	who
	wished
	to 	discuss
the 	courses 	they
	would
	like 	to 	teach 	or 	the 	times 	they
	would
like 	to 	teach
	it.	
The
	ultimate 	authority 	for 	assigning
classes,	classes, therefore, appears to rest with the department	
therefore,	
appears	
to 	rest
	with 	the 	department
chairperson.	
chairperson.

The incumbents' role in evaluating department members is
also indicative of their supervisory status. District policy
requires that teachers be evaluated at least once every two
years. The responsibility for carrying out these evaluations
falls on the department chairpersons, who receive some
assistance from grade coordinators. In evaluating classroom
teachers, the chairpersons must make at least two classroom
observations, each lasting at least twenty minutes. 	The chair-
persons carry out the evaluation utilizing standard evaluation
forms provided by the District. The chairpersons complete and
sign the evaluation forms and forward them to the principal for
review. The principal reviews the forms, but does not sign
them. He then forwards the evaluation forms to the personnel
director for retention. The chairpersons are the final
signatory on all teacher evaluation forms which they complete.
In recent years, there has been very little personnel turn-
over in the Berkeley Unified School District. As a result, the
District has had little opportunity to utilize teacher evalua
tions in its tenure or retention system. The infrequent
utilization of teacher evaluations, however, does not preclude
a finding of supervisory status. It is the authority to
perform or effectively recommend the functions enumerated in
section 3540.1(m), a
14
The
	incumbents'
	role
	in 	evaluating
	department
	members
	is
also 	indicative
	of
	their
	supervisory
	status. 	District
	policy
requires 	that
	teachers
	be
	evaluated
	at 	least
	once
	every
	two
years.
	The
	responsibility
	for 	carrying
	out
	these
	evaluations
falls
	on
	the
	department
	chairpersons,
	who
	receive
	some
assistance
	from
	grade
	coordinators.
	In
	evaluating
	classroom
teachers,
	the
	chairpersons
	must
	make
	at 	least
	two
	classroom
observations,
	each
	lasting 	at 	least
	twenty
	minutes.
	The	
chair-
persons	
carry
	out 	the 	evaluation
	utilizing
	standard
	evaluation
forms
	provided
	by
	the
	District.
	The
	chairpersons
	complete
	and
sign 	the
	evaluation
	forms
	and
	forward
	them
	to
	the
	principal
	for
review.
	The
	principal
	reviews
	the
	forms,
	but
	does
	not
	sign
them.
	He
	then 	forwards
	the
	evaluation
	forms
	to
	the 	personnel
director
	for
	retention.
	The
	chairpersons 	are 	the
	final
signatory
	on
	all
	teacher 	evaluation
	forms 	which
	they 	complete.
In
	recent 	years, 	there
	has 	been 	very
	little
	personnel	
turn-
over	
in 	the 	Berkeley Unified
	School
	District.
	As
	a
	result,
	the
District
	has
	had
	little
	opportunity 	to
	utilize
	teacher
14
evalua-
tions 	in
	its
	tenure 	or
	retention
	system.
	The
	infrequent
utilization
	of 	teacher 	evaluations,
	however, 	does
	not 	preclude
a
	finding 	supervi
	status.
	It
	is 	authority 	to
perform 	or
	effectively
	recommend
	the 	functions
	enumerated
	in
section 	3540.l(m),nd not the frequency of their exercise,	
not
	fr
	ir
	exercise,

which determines the supervisory status of employees. 	12 	In
this case, a District witness testified that the chairpersons'
evaluations are given great weight, almost controlling weight,
in determining whether a teacher will be granted tenure or
discharged. The Board finds the department chairpersons'
evaluation function, therefore, to be indicative of their
supervisory status.
Mr. Parker testified on direct examination that department
chairpersons have authority to informally adjust grievances at
the first level of the District's grievance procedure. This
authority was confirmed by Federation witness and department
chairperson, Mr. Choulette, who admitted to resolving
differences between two or more teachers on several occasions.
Another Federation witness, MS. Harrington, stated that she
just assumed that the grievance function was part of her job as
the head of a department. Evidence further indicates that the
chairpersons are frequently called upon to resolve grievances
related to such things as the assignment of classes or class-
rooms, and the availability of films or film projectors. Ample
evidence exists, therefore, to support the department chair-
persons' supervisory authority to resolve grievances.
12see, NLRB v. Pilot Freight Carriers, Inc. (4th Cir.
58 F. 2d. 205, Cert denied (1977) 434 U.S. 101.
15
which 	determines 	the 	supervisory 	status 	of 	employees. 12 In
this 	case, 	a 	District 	witness 	testified 	that 	the 	chairpersons'
evaluations 	are 	given 	great 	weight, 	almost 	controlling 	weight,
in 	determining 	whether 	a 	teacher 	will 	be 	granted 	tenure 	or
discharged. 	The 	Board 	finds 	the 	department 	chairpersons'
evaluation 	function, 	therefore, 	to 	be 	indicative 	of 	their
supervisory 	status.
Mr. 	Parker 	testified 	on 	direct 	examination 	that 	department
chairpersons 	have 	authority 	to 	informally 	adjust 	grievances 	at
the 	first 	level 	of 	the 	District's 	grievance 	procedure. 	This
authority 	was 	confirmed 	by 	Federation 	witness 	and 	department
chairperson, 	Mr. 	Choulette, 	who 	admitted 	to 	resolving
differences 	between 	two 	or 	more 	teachers 	on 	several 	occasions.
Another 	Federation 	witness, 	Ms. 	Harrington, 	stated 	that 	she
just 	assumed 	that 	the 	grievance 	function 	was 	part 	of 	her 	job 	as
the 	head 	of 	a 	department. 	Evidence 	further 	indicates 	that 	the
chairpersons 	are 	frequently 	called 	upon 	to 	resolve 	grievances
related 	to 	such 	things 	as 	the 	assignment 	of 	classes 	or 	class-
rooms, 	and 	the 	availability 	of 	films 	or 	film 	projectors. 	Ample
evidence 	exists, 	therefore, 	to 	support 	the 	department 	chair-
persons' 	supervisory 	authority 	to 	resolve 	grievances.
12see, 	NLRB 	v. 	Pilot 	Freight 	Carriers, 	Inc. 	(4th 	Cir.
1977) 5	77) 	558 	F.2d. 	205, 	Cert 	denied 	(1977) 	434 	U.S. 	101.
15

With respect to the hiring and transferring of employees,
the District claims that department chairpersons have the power
to veto any decision made by the principal. The chairpersons,
however, were never informed that they possessed such power ,
and since the District has hired only one teacher in the last
three years the chairpersons' authority in this respect remains
largely unclear. Evidence was presented of an instance in
which the chairperson of the science department vetoed a candi-
date who was hired by the District in a different department
and later transferred into the science department against the
wishes of the chairperson. In view of the above, the Board
finds the chairpersons' responsibilities with respect to the
hiring and transfer of employees do not fall within the purview
of section 3540.1 (m) , and are, in themselves, insufficient to
confer supervisory status.
In sum, the supervisory status of department chairpersons
is affirmed based upon their authority to assign classes,
resolve grievances, discipline department members, and effect
tively recommend tenure through the completion of formal
evaluations.
Teacher Director
There are three teacher director positions in the Berkeley
Unifie
a set
Kilimanjaro. " This teacher director is found to be supervisory
16
With
	respect
	to
	the
	hiring
	and
	transferring
	of
	employees,
the
	District
	claims
	that
	department
	chairpersons
	have
	the
	power
to
	veto
	any
	decision
	made
	by
	the
	principal.
	The
	chairpersons,
however,
	were
	never 	informed
	that
	they 	possessed
	such 	power,
and
	since
	the
	District
	has
	hired
	only
	one
	teacher 	in 	the
	last
three
	years 	the
	chairpersons' 	authority
	in
	this
	respect
	remains
largely
	unclear.
	Evidence
	was
	presented 	of
	an
	instance
	in
which
	the 	chairperson 	of 	the 	science
	department 	vetoed
	a	
candi-
date	
who 	was
	hired
	by
	the
	District
	in
	a
	different
	department
and
	later
	transferred 	into
	the 	science
	department
	against 	the
wishes
	of 	the 	chairperson.
	In
	view
	of 	the
	above,
	the
	Board
finds 	the
	chairpersons'
	responsibilities
	with
	respect 	to 	the
hiring
	and
	transfer
	of
	employees
	do
	not
	fall
	within 	the 	purview
of
	section
	3540.l(m),
	and
	are, 	in
	themselves,
	insufficient 	to
confer 	supervisory
	status.
In
	sum,
	the 	supervisory
	status
	of 	department
	chairpersons
is
	affirmed 	based
	upon
	their 	authority 	to 	assign
	classes,
resolve 	grievances,
	discipline
	department
	members, 	and	
effec-
tively	
recommend
	tenure 	through 	the 	completion 	of
	formal
evaluations. 
Teacher
	Director
There 	are 	three 	teacher 	director 	positions 	in 	the 	Berkeley
Unifi d School District. One of the directors is in charge of	
District.
	One
	directors 	is
	in
	e
a
	setof alternate schools (K-9) known as "Odyssey/	
alternates	
s 	9) 	known
	as	
s
Kilimanjaro." 	This 	teacher 	director 	is
	found
	to
	be
	supervisory
16

based upon his role in hiring staff for his school. The other
two teacher directors are employed in the District's high
school, and are found to be supervisory for reasons mentioned
in our discussion on department chairpersons.
The teacher director at Odyssey/Kilimanjaro was described
as performing functions very similar to those of a principal or
department chairperson. He presides at staff meetings,
administers the school's budget, evaluates staff, resolves
grievances, and has an important role in staffing his schools.
The director has ultimate responsibility for the development of
the curriculum and is responsible for implementing the total
program at the two sites.
The teacher director at Odyssey/Kilimanjaro, like most of
the District's administrative staff, was appointed by the
Superintendent. 	The appointment is for an indefinite period
and there is no rotation of this position among the school
staff. The director attends all meetings of the District's
principals and supervisors. The incumbent teaches only one or
two periods per day and devotes the rest of the time to admin-
istrative matters. He is employed for an eight-hour day as
opposed to a six and one-half hour day for the rest of the
teachers, and also receives twelve percent more pay than do the
other teachers.
The h 	und the teacher director at
Odyssey/Kilimanjaro to be a supervisory employee based upon the
17
based 	upon 	his 	role 	in 	hiring 	staff 	for 	his 	school. 	The 	other
two 	teacher 	directors 	are 	employed 	in 	the 	District's 	high
school, 	and 	are 	found 	to 	be 	supervisory 	for 	reasons 	mentioned
in 	our 	discussion 	on 	department 	chairpersons.
The 	teacher 	director 	at 	Odyssey/Kilimanjaro 	was 	described
as 	performing 	functions 	very 	similar 	to 	those 	of 	a 	principal 	or
department 	chairperson. 	He 	presides 	at 	staff 	meetings,
administers 	the 	school's 	budget, 	evaluates 	staff, 	resolves
grievances, 	and 	has 	an 	important 	role 	in 	staffing 	his 	schools.
The 	director 	has 	ultimate 	responsibility 	for 	the 	development 	of
the 	curriculum 	and 	is 	responsible 	for 	implementing 	the 	total
program 	at 	the 	two 	sites.
The 	teacher 	director 	at 	Odyssey/Kilimanjaro, 	like 	most 	of
the 	District's 	administrative 	staff, 	was 	appointed 	by 	the
Superintendent. 	The 	appointment 	is 	for 	an 	indefinite 	period
and 	there 	is 	no 	rotation 	of 	this 	position 	among 	the 	school
staff. 	The 	director 	attends 	all 	meetings 	of 	the 	District's
principals 	and 	supervisors. 	The 	incumbent 	teaches 	only 	one 	or
two 	periods 	per 	day 	and 	devotes 	the 	rest 	of 	the 	time 	to 	admin-
istrative 	matters. 	He 	is 	employed 	for 	an 	eight-hour 	day 	as
opposed 	to 	a 	six 	and 	one-half 	hour 	day 	for 	the 	rest 	the
teachers, 	and 	also 	receives 	twelve 	percent 	more 	pay 	than 	do 	the
other 	teachers.
The 	hear	earing officer fo	icer 	found 	the 	teacher 	director 	at
Odyssey/Kilimanjaro 	to 	be 	a 	supervisory 	employee 	based 	upon 	the
17

director's authority to effectively recommend the hiring of
certificated staff. The teacher director has the same role in
staffing his school as does a regular school principal. The
teacher director interviews all applicants for positions within
the school and makes recommendations to the director of certi-
ficated personnel. Although the ultimate authority in hiring
resides in the latter, the teacher director was described as
having "a very strong voice in selection of staff. " Based upon
the foregoing, the teacher director at Odyssey/Kilimanjaro is
found to be a "supervisory employee" within the meaning of
section 3540.1(m) .
Very little evidence was presented regarding the two
teacher director positions at Berkeley High School. Witnesses
for both the District and Federation agree, however, that they
have substantially the same job functions as department chair-
persons. 	Accordingly, the teacher directors at Berkeley High
School are found to be supervisory for reasons mentioned in the
discussion on department chairpersons.
Head Counselor
The position of head counselor is also very similar to that
of the department chairperson. 	The only major difference
between the two is that the former is in charge of counselors
rather than teachers. Like the chairperson, the head counselor
is appointed by the principal from a list of two counselors
submitted by the counseling staff. The appointment is for a
18
director's
	authority
	to
	effectively
	recommend
	the
	hiring 	of
certificated 	staff.
	The
	teacher
	director
	has
	the
	same
	role
	in
staffing
	his
	school 	as
	does
	a
	regular
	school
	principal.
	The
teacher
	director
	interviews
	all
	applicants
	for
	positions
	within
the
	school
	and 	makes
	recommendations
	to
	the
	director
	of	
certi-
ficated	
personnel.
	Although
	the
	ultimate 	authority
	in
	hiring
resides
	in
	the
	latter,
	the 	teacher
	director
	was
	described 	as
having
	"a
	very
	strong
	voice 	in
	selection
	of
	staff."
	Based
	upon
the 	foregoing,
	the
	teacher
	director
	at
	Odyssey/Kilimanjaro
	is
found
	to
	be 	a
	"supervisory
	employee"
	within
	the
	meaning
	of
section
	3540.l(m).
Very
	little
	evidence
	was
	presented 	regarding 	the
	two
teacher
	director 	positions
	at
	Berkeley
	High
	School. 	Witnesses
for
	both 	the
	District
	and
	Federation 	agree,
	however,
	that
	they
have
	substantially
	the
	same
	job
	functions 	as 	department	
chair-
persons.	
Accordingly, 	the 	teacher
	directors
	at
	Berkeley
	High
School
	are
	found
	to
	be
	supervisory 	for 	reasons
	mentioned
	in
	the
discussion
	on
	department
	chairpersons.
Head
	Counselor
The
	position 	of
	head
	counselor
	is
	also
	very
	similar 	to 	that
of 	the 	department
	chairperson.
	The
	major
	difference
between 	the
	two
	is 	that
	the
	former
	is
	in 	charge 	of 	counselors
rather 	than
	rs.
	Like
	chairperson, 	the 	head
	counselor
is
	appo
	ted 	the 	pr
	ipal
	om
	a
	list
	two
	counselors
submitted
	by
	the 	counseling
	staff.
	The 	appointment
	is
	a
18

two-year period. The head counselor works more hours than does
a regular counselor and receives greater pay. There is release
time for the performance of administrative duties. The head
counselor assigns students to his counselors. He evaluates the
counselors, adjusts their grievances, and has the authority to
discipline them or issue reprimands when necessary.
As with the department chairperson, the hearing officer
found this position to be supervisory on the sole basis of the
head counselor's authority to discipline staff and issue
written reprimands. The head counselor's authority in this
regard is similar to that of the department chairperson. 	The
supervisory status of the head counselor is therefore affirmed.
Grade Coordinator
The grade coordinators are found to be supervisory based
upon their authority direct the work of counselors in pupil
attendance and disciplinary matters, and their broad super-
visory authority over a large number of classified employees.
Grade coordinators are full-time administrators with no
teaching responsibilities. They are selected by the assistant
superintendent in charge of instruction for an indefinite
period of time. The grade coordinators work from 400 to 600
hours per year more than classroom teachers and are compensated
at a rate above the regular teacher.
One of the responsibilities of the grade coordinators is to
facilitate the entry of each new class into Berkeley High
19
two-year 	period. 	The 	head 	counselor 	works 	more 	hours 	than 	does
a 	regular 	counselor 	and 	receives 	greater 	pay. 	There 	is 	release
time 	for 	the 	performance 	of 	administrative 	duties. 	The 	head
counselor 	assigns 	students 	to 	his 	counselors. 	He 	evaluates 	the
counselors, 	adjusts 	their 	grievances, 	and 	has 	the 	authority 	to
discipline 	them or 	issue 	reprimands 	when 	necessary.
As 	with 	the 	department 	chairperson, 	the 	hearing 	officer
found 	this 	position 	to 	be 	supervisory 	on 	the 	sole 	basis 	of 	the
head 	counselor's 	authority 	to 	discipline 	staff 	and 	issue
written 	reprimands. 	The 	head 	counselor's 	authority 	in 	this
regard 	is 	similar 	to 	that 	of 	the 	department 	chairperson. 	The
supervisory 	status 	of 	the 	head 	counselor 	is 	therefore 	affirmed.
Grade 	Coordinator
The 	grade 	coordinators 	are 	found 	to 	be 	supervisory 	based
upon 	their 	authority 	direct 	the 	work 	of 	counselors 	in 	pupil
attendance 	and 	disciplinary 	matters, 	and 	their 	broad 	super-
visory 	authority 	over 	a 	large 	number 	of 	classified 	employees.
Grade 	coordinators 	are 	full-time 	administrators 	with 	no
teaching 	responsibilities. 	They 	are 	selected 	by 	the 	assistant
superintendent 	in 	charge 	of 	instruction 	for 	an 	indefinite
period 	of 	time. 	The 	grade 	coordinators 	work 	from 	400 	to 	600
hours 	per 	year 	more 	than 	classroom 	teachers 	and 	are 	compensated
at 	a 	rate 	above 	the 	regular 	teacher.
One 	of 	respons 	ilities 	of 	the 	ade 	coordinators 	is 	to
facilitate 	the 	entry 	of 	each 	new 	class 	into 	Berkeley 	High
19

School. They are also responsible for overseeing the atten-
dance and discipline of an assigned group of students. In
addition, they assist in the supervision of the school area,
and see to it that teachers comply with District and state
procedures requiring notification of parents whenever students
are having scholastic or attendance problems. As an incidental
function, they help the department chairpersons evaluate the
teachers and serve as a temporary principal in the absence of
the regular principal and vice principal.
The grade coordinator has the authority to direct
counselors in pupil attendance and disciplinary matters. 	The
coordinator also has broad supervisory powers over certain
classified employees such as grade center clerks, attendance
clerks and student supervisors. There is evidence that grade
coordinators have the authority to effectively recommend the
hiring, firing, lay off, promotion, and transfer of these
classified employees, and also to adjust their grievances.
The hearing officer found the grade coordinators to be
supervisory based upon their authority to direct counselors in
pupil attendance and disciplinary matters and to place written
reprimands in counselors' personnel files. This finding is
supported by the record and is affirmed.
The grade coordinator's broad supervisory authority over
classified emloyee
Government Code section 3540.1 (m) does not distinguish between
20
School. 	They 	are 	also 	responsible 	for 	overseeing 	the 	atten-
dance 	and 	discipline 	of 	an 	assigned 	group 	of 	students. 	In
addition, 	they 	assist 	in 	the 	supervision 	of 	the 	school 	area,
and 	see 	to 	it 	that 	teachers 	comply 	with 	District 	and 	state
procedures 	requiring 	notification 	of 	parents 	whenever 	students
are 	having 	scholastic 	or 	attendance 	problems. 	As 	an 	incidental
function, 	they 	help 	the 	department 	chairpersons 	evaluate 	the
teachers 	and 	serve 	as 	a 	temporary 	principal 	in 	the 	absence 	of
the 	regular 	principal 	and 	vice 	principal.
The 	grade 	coordinator 	has 	the 	authority 	to 	direct
counselors 	in 	pupil 	attendance 	and 	disciplinary 	matters. 	The
coordinator 	also 	has 	broad 	supervisory 	powers 	over 	certain
classified 	employees 	such 	as 	grade 	center 	clerks, 	attendance
clerks 	and 	student 	supervisors. 	There 	is 	evidence 	that 	grade
coordinators 	have 	the 	authority 	to 	effectively 	recommend 	the
hiring, 	firing, 	lay 	off, 	promotion, 	and 	transfer 	of 	these
classified 	employees, 	and 	also 	to 	adjust 	their 	grievances.
The 	hearing 	officer 	found 	the 	grade 	coordinators 	to 	be
supervisory 	based 	upon 	their 	authority 	to 	direct 	counselors 	in
pupil 	attendance 	and 	disciplinary 	matters 	and 	to 	place 	written
reprimands 	in 	counselors' 	personnel 	files. 	This 	finding 	is
supported 	by 	the 	record 	and 	is 	affirmed.
The 	grade 	coordinator's 	broad 	supervisory 	authority 	over
classified 	emloyees	s is also indicative of supervisory status.	is 	indicative 	supervi 	status.
Government 	Code 	section 	3540.l(m) 	does 	not 	distinguish 	between
20

the supervision of unit and non-unit employees, and the Board
will not read such a distinction into the provision. 	The
authority of the grade coordinator to supervise certain classi-
fied employees is clear and uncontradicted in the record. 	The
supervisory status of the grade coordinator is affirmed.
Junior High School Dean
The junior high school deans are found to be supervisory
based upon unrebutted evidence in the record that the dean
supervises the counseling staff and has authority to resolve
the working grievances of certificated faculty.
The only evidence presented with respect to the dean posi-
tions was the testimony of the director of instructional
services, a District witness, who attested to the job functions
outlined below. 	The Federation did not cross-examine this
witness nor did it present any evidence in opposition to her
testimony .
The basic function of the junior high school deans is to
assist the principal in the supervision of both students and
staff. 	The deans do written performance evaluations of certif-
icated staff. 	They oversee the work of the counseling staff.
They serve as a liaison between parents, students, teachers and
21
the 	supervision 	of 	unit 	and 	non-unit 	employees, 	and 	the 	Board
will 	not 	read 	such 	a 	distinction 	into 	the 	provision. 	The
authority 	of 	the 	grade 	coordinator 	to 	supervise 	certain 	classi-
fied 	employees 	is 	clear 	and 	uncontradicted 	in 	the 	record. 	The
supervisory 	status 	of 	the 	grade 	coordinator 	is 	affirmed.
Junior 	High 	School 	Dean
The 	junior 	high 	school 	deans 	are 	found 	to 	be 	supervisory
based 	upon 	unrebutted 	evidence 	in 	the 	record 	that 	the 	dean
supervises 	the 	counseling 	staff 	and 	has 	authority 	to 	resolve
the 	working 	grievances 	of 	certificated 	faculty.
The 	only 	evidence 	presented 	with 	respect 	to 	the 	dean 	posi-
tions 	was 	the 	testimony 	of 	the 	director 	of 	instructional
services, 	a 	District 	witness, 	who 	attested 	to 	the 	job 	functions
outlined 	below. 	The 	Federation 	did 	not 	cross-examine 	this
witness 	nor 	did 	it 	present 	any 	evidence 	in 	opposition 	to 	her
testimony.
The 	basic 	function 	of 	the 	junior 	high 	school 	deans 	is 	to
assist 	the 	principal 	in 	the 	supervision 	of 	both 	students 	and
staff. 	The 	deans 	do 	written 	performance 	evaluations 	of 	certif-
icated 	staff. 	They 	oversee 	the 	work 	of 	the 	counseling 	staff.
They 	serve 	as 	a 	liaison 	between 	parents, 	students, 	teachers 	and
counselors; and carry out individual projects as assigned by	counselors; 	and 	carry 	out 	individual 	projects 	as 	assigned
the principal. In addition, they resolve grievances and	the 	incipal. 	In 	ition, 	t 	grievances
replace the principal when he or she is absent. The dean	ace 	the 	inc 	when 	ors 	is 	absent. 	The
21

positions are considered by the District to be the junior high
school equivalent of the grade coordinator positions.
The junior high school deans are appointed by the adminis-
tration, not their peers. They are required to have an
administrative credential. They attend administrative staff
meetings, and like other supervisory employees, they are
required to work more hours and receive greater pay than the
regular faculty.
The hearing officer found this position not to be super-
visory. The record, however, indicates otherwise. 	Unrebutted
testimony was presented that the deans supervised counseling
staff, and that as first line supervisors they had authority to
adjust the grievances of members of the certificated faculty.
In the absence of contrary evidence, such evidence is found to
be sufficient to qualify the junior high school deans as
supervisory employees.
Head Teacher
Finally, the head teachers are found to be supervisory
based upon their authority to direct the work of their staff,
resolve their grievances, complete formal written evaluations,
and effectively recommend the dismissal of teachers.
The Berkeley Unified Schol District operates seven centers
for preschool children. The children's centers are for working
parents of low income. 	The centers are attended by at least 50
children and are staffed by between 13 and 20 classified and
22
positions
	are
	considered
	by
	the
	District
	to
	be
	the
	junior
	high
school
	equivalent
	of 	the
	grade
	coordinator
	positions.
The
	junior
	high
	school
	deans
	are
	appointed
	by
	the 	adminis-
tration,	
not
	their
	peers.
	They
	are 	required 	to
	have 	an
administrative
	credential.
	They
	attend 	administrative
	staff
meetings,
	and
	like
	other 	supervisory
	employees,
	they
	are
required 	to
	work 	more
	hours
	and
	receive
	greater
	pay
	than
	the
regular 	faculty.
The
	hearing
	officer
	found
	this
	position
	not
	to
	be	
super-
visory.	
The
	record,
	however,
	indicates
	otherwise.
	Unrebutted
testimony
	was
	presented
	that
	the
	deans
	supervised 	counseling
staff,
	and
	that
	as
	first
	line
	supervisors
	they
	had
	authority
	to
adjust
	the 	grievances 	of
	members
	of
	the
	certificated
	faculty.
In
	the 	absence
	of 	contrary
	evidence,
	such
	evidence
	is
	found
	to
be
	sufficient
	to 	qualify
	the 	junior
	high 	school 	deans 	as
supervisory
	employees. 
Head
	Teacher
Finally,
	the
	head
	teachers 	are
	found
	to
	be
	supervisory
based
	upon
	their 	authority 	to 	direct
	the
	work
	of
	their
	staff,
resolve
	their
	grievances,
	complete 	formal
	written 	evaluations,
and
	effectively
	recommend
	the 	dismissal 	of 	teachers.
The
	Berkeley 	Unified 	Schol
	District
	operates
	seven
	centers
for 	preschool 	children.
	The
	chi 	ren's 	centers 	are 	for 	working
parents 	of
	income. 	The
	centers 	are
	at 	at 	st
	50
chi 	ren 	and
	are 	staffed 	by 	between 	13 	and 	20
	classified
	and
22

certificated employees. Each center is directed by one head
teacher.
Head teachers are responsible for the day to day operation
of their respective centers. They are responsible for main-
taining a safe physical environment. They have authority to
assign classs and classroom space. They set up the center's
schedule. 	They have authority to formally discipline or
counsel persons on their staff. They resolve grievances. They
complete written evaluations of all members of the center's
staff. They have discretionary control over the centers'
budgets, and have a strong influence over staffing the centers.
Head teachers are appointed by the District. They have no
fixed daily hours. 	They receive extra compensation for their
additional duties and are required to work a slightly longer
work year than other teachers. Head teachers are required to
have only two and one-half hours of contact time per day with
the students. The remainder of the day is spent discharging
the special functions of head teacher.
The head teachers were found to be supervisory employees by
the hearing officer on the basis of their authority to assign
work, require correction of improperly performed work, and to
effectively recommend the dismissal of teachers. This con-
clusion is supported by the testimony of District and
Federation witnesses alike.
23
certificated 	employees. 	Each 	center 	is 	directed 	by 	one 	head
teacher.
Head 	teachers 	are 	responsible 	for 	the 	day 	to 	day 	operation
of 	their 	respective 	centers. 	They 	are 	responsible 	for 	main-
taining 	a 	safe 	physical 	environment. 	They 	have 	authority 	to
assign 	classs 	and 	classroom 	space. 	They 	set 	up 	the 	center's
schedule. 	They 	have 	authority 	to 	formally 	discipline 	or
counsel 	persons 	on 	their 	staff. 	They 	resolve 	grievances. 	They
complete 	written 	evaluations 	of 	all 	members 	of 	the 	center's
staff. 	They 	have 	discretionary 	control 	over 	the 	centers'
budgets, 	and 	have 	a 	strong 	influence 	over 	staffing 	the 	centers.
Head 	teachers 	are 	appointed 	by 	the 	District. 	They 	have 	no
fixed 	daily 	hours. 	They 	receive 	extra 	compensation 	for 	their
additional 	duties 	and 	are 	required 	to 	work 	a 	slightly 	longer
work 	year 	than 	other 	teachers. 	Head 	teachers 	are 	required 	to
have 	only 	two 	and 	one-half 	hours 	of 	contact 	time 	per 	day 	with
the 	students. 	The'remainder 	of 	the 	day 	is 	spent 	discharging
the 	special 	functions 	of 	head 	teacher.
The 	head 	teachers 	were 	found 	to 	be 	supervisory 	employees 	by
the 	hearing 	officer 	on 	the 	basis 	of 	their 	authority 	to 	assign
work, 	require 	correction 	of 	improperly 	performed 	work, 	and 	to
effectively 	recommend 	the 	dismissal of 	teachers. 	This 	con-
clusion 	is 	supported 	by 	the 	testimony 	of 	District 	and
Federation 	witnesses 	alike.
23

Evidence was presented of an instance in which a head
teacher effectively recommended the dismissal of a teacher at
her school. The dismissal occurred after an unsatisfactory
evaluation and several conferences between the head teacher and
the discharged employee.
Regarding the head teacher's authority to assign work, the
following exchange took place on direct examination of a
Federation witness who occupied the position of head teacher.
Q. 	Do you direct the work of any of the employees of
the children's center? . 	Do you give them work
assignments?
A. Yes.
Q. 	What type of assignments would you give them?
A. Well, it's a fairly large area to cover and because
there are such young children, you have to be sure that the
grounds are covered safely and you have to be sure that
there is adequate supervision at all times. That's some-
thing I think only one person with in concert with other
people can look at. 	There has to be a plan so that the
grounds are covered safely and the children are adequately
looked after at all times.
The supervisory status of the head teacher is affirmed.
ORDER
The Public Employment Relations Board ORDERS that:
1. The woman studies director/Title IX coordinator is a
management employee within the meaning of Government Code
section 3540.1(g) , and is, therefore, excluded from the
certificated unit.
24
Evidence 	was 	presented 	of 	an 	instance 	in 	which 	a 	head
teacher 	effectively 	recommended 	the 	dismissal 	of 	a 	teacher 	at
her 	school. 	The 	dismissal 	occurred 	after 	an 	unsatisfactory
evaluation 	and 	several 	conferences 	between 	the 	head 	teacher 	and
the 	discharged 	employee.
Regarding 	the 	head 	teacher's 	authority 	to 	assign 	work, 	the
following 	exchange 	took 	place 	on 	direct 	examination 	of 	a
Federation 	witness 	who 	occupied 	the 	position 	of 	head 	teacher.
Q •••• 	Do 	you 	direct 	the 	work 	of 	any 	of 	the 	employees 	of
the 	children's 	center? 	•.. 	Do 	you 	give 	them work
assignments?
A. 	Yes.
Q. 	What 	type 	of 	assignments 	would 	you 	give 	them?
A. 	Well, 	it's 	a 	fairly 	large 	area 	to 	cover 	and 	because
there 	are 	such 	young 	children, 	you 	have 	to 	be 	sure 	that 	the
grounds 	are 	covered 	safely 	and 	you 	have 	to 	be 	sure 	that
there 	is 	adequate 	supervision 	at 	all 	times. 	That's 	some-
thing 	I 	think 	only 	one 	person 	with 	in 	concert 	with 	other
people 	can 	look 	at. 	There 	has 	to 	be 	a 	plan 	so 	that 	the
grounds 	are 	covered 	safely 	and 	the 	children 	are 	adequately
looked 	after 	at 	all 	times.
The 	supervisory 	status 	of 	the 	head 	teacher 	is 	affirmed.
ORDER
The 	Public 	Employment 	Relations 	Board 	ORDERS 	that:
1. 	The 	woman 	stud 	s 	director/Title 	IX 	coordinator 	is 	a
management 	employee 	within 	the 	meaning 	of 	Government 	Code
section 	3540.l(g), 	and 	is, 	therefore, 	excluded 	from 	the
certif 	ted 	unit.
24

2. 	The department chairpersons, teacher directors, head
counselor, grade coordinators, junior high school deans, and
head teachers are supervisory employees within the meaning of
3540. 1 (m) and excluded from the certificated unit.
By: Raymond J. gonzales, Member
25
2. 	The 	department 	chairpersons, 	teacher 	directors, 	head
counselor, 	grade 	coordinators, 	junior 	high 	school 	deans, 	and
head 	teachers 	are 	supervisory 	employees 	within 	the 	meaning 	of
3540.l(m) 	and 	excluded 	from 	the 	certi.ficatea 	unit.
/
jy: 	R_f§rnond 	J. Jlonzitf..es, 	Mclnber 	Harry Gluck, Chairperson
25

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
BERKELEY UNIFIED SCHOOL DISTRICT,
Employer ,
REPRESENTATION
Case No. SF-UC-32
and
PROPOSED DECISION
BERKELEY FEDERATION OF TEACHERS,
LOCAL 1078, CFT/AFT, 	7/19/78
Employee Organization.
Appearances: Garry G. Mathiason and Harlan Van Wye, Attorneys
(Littler, Mendelson, Fastiff and Tichy) for Berkeley Unified
School District; Robert J. Bezemek, Attorney (Van Bourg, Allen,
Weinberg and Roger) for Berkeley Federation of Teachers, Local
1078, CFT/AFT.
Before Michael J. Tonsing, Hearing Officer.
PROCEDURAL HISTORY
The Berkeley Unified School district (hereafter District) has
a student enrollment of approximately 12,138 at 22 school sites in
the City of Berkeley.
On June 27, 1977, pursuant to Government Code section
3541.3 (c) , a joint petition for change in unit determination was
filed with the Public Employment Relations Board (hereafter PERB)
fficial notice is taken of these facts from the 1978
California Public School Directory (Cal. State Department of
Education) .
STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
BERKELEY
	UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
BERKELEY 	FEDERATION
	OF
	TEACHERS,
LOCAL
	1078,	
CFT/AFT,
Employee	
Organization.
)
)
)
)
)
)
)
)
)
)
)
)
__________________
)
REPRESENTA'rION
Case
	No.
	SF-UC-32
PROPOSED 	DECISION
7/19/78
Appearances:	
Garry
	G.
	Mathiason	
and	
Harlan
	Van	
Wye,	
Attorneys
(Littler,
	Mendelson,
	Fastiff
	and
	Tichy)
	for
	Berkeley
	Unified
School
	District;
	Robert
	,J. 	Bezemek,
	Attorney
	(Van
	Bourg,
	Allen,
Weinberg
	and 	Roger)
	for 	Berkeley
	Federation 	of 	Teachers,
	Local
1078,	
CFT/AFT.
Before
	Michael
	J.
	Tonsing, 	Hearing
	Officer.
PROCEDURAL	
HISTORY
The
	Berkeley Unified
	Schoo]
	district
	(hereafter
	District)
	has
a
	student 	enrollment 	of 	approximately 	12,138
	at
	22
	school
	sites
	in
the 	City 	of 	Berkeley.
1
On
	June 	27, 	1977, 	pursuant 	to
	Government 	Code
	section
3541.3(c),
	a
	joint 	petition
	for
	change
	in 	unit 	determination
	was
filed
	with 	the 	Public
	Employment
	Relations
	Board
	(hereafter
	PERB)
lo
official
	notice 	is 	taken 	of 	these 	facts
	from
	the
	1978
California 	Public 	School 	Directory 	(Cal. 	State 	Department 	of
Education).

by the District and the Berkeley Federation of Teachers, Local
1078, CFT/AFT (hereafter Federation) . Previously, on March 9,
1977 pursuant to a directed election, the Federation was certified
as the exclusive representative for a unit including:
All certificated employees, all probationary or
permanent certificated employees and hourly
employees working eighteen (18) hours or more
per week on a regular basis and not otherwise
excluded; and substitute certificated personnel
serving forty-four (44) consecutive days as a
substitute teacher in the District; and
excluding: All management, supervisory and
confidential employees.
A hearing was held on August 16, 17 and 23, 1977.
Subsequently, on April 10, 1978, more than seven months after the
close of the hearing, the Federation moved to reopen the record to
receive into evidence the minutes of the Board of Education
meeting on February 3, 1978, showing a proposed reduction or
discontinuance of services for the 1978-1979 school year,
including certain of the job categories at issue herein. 	Because
of the questionable relevancy and speculative nature of a possible
future reduction or discontinuance of these positions, the motion
to reopen is denied and the proffered exhibit is rejected. There
is no showing of their relevance to any matters presently at
issue. Rather, the minutes indicate possible future changes.
ISSUE
Are the positions of women's studies director/title IX
coordinator, department chairperson, head teacher, dean, teacher-
director, grade coordinator, and head counselor management or
supervisory within the meaning of Government Code section
3540.1(g) or (m) , respectively, and therefore excluded from the
by
	the
	District
	and
	the 	Berkeley
	Federation 	of 	Teachers,
	Local
1078,
	CFT/AFT
	(hereafter 	Federation). 	Previously,
	on March
	9,
1977
	pursuant
	to
	a
	directed
	election,
	the
	Federation
	was
	certified
as
	the
	exclusive
	representative
	for
	a
	unit
	including:
All
	certificated
	employees,
	all
	probationary
	or
permanent
	certificated
	employees
	and
	hourly
employees 	working
	eighteen
	(18)
	hours
	or
	more
per
	week
	on
	a
	regular
	basis
	and
	not
	otherwiseexcluded;
	and
	substitute 	certificated
	personnel
serving
	forty-four
	(44)
	consecutive
	days 	as
	a
substitute
	teacher 	in
	the
	District;
	and
excluding: 	All
	management,
	supervisory
	and
confidential
	employees.
A
	hearing
	was
	held
	on August
	16,
	17 	and
	23, 	1977.
Subsequently,
	on
	April 	10,
	1978,
	more
	than 	seven
	months
	after
	the
close
	of 	the 	hearing, 	the 	Federation
	moved
	to
	reopen
	the 	record 	to
receive 	into
	evidence
	the
	minutes
	of 	the
	Board
	of 	Education
meeting
	on
	February 	3, 	1978,
	showing
	a
	proposed
	reduction 	or
discontinuance 	of 	services
	for 	the
	1978-1979
	school
	year,
including
	certain
	of
	the
	job
	categories 	at
	issue 	herein.
	Because
of 	the 	questionable 	relevancy
	and
	speculative 	nature 	of
	a
	possible
future 	reduction
	or 	discontinuance 	of 	these
	positions,
	the
	motion
to
	reopen
	is
	denied
	and
	the 	proffered 	exhibit 	is 	rejected.
	There
is
	no
	showing
	of
	their
	relevance 	to
	any
	matters 	presently 	at
issue. 	Rather, 	the 	minutes
	indicate 	possible 	future 	changes.
ISSUE
Are
	the 	positions 	of
	women's
	studies
	director/title
	IX
coordinator, 	department 	chairperson,
	head
	teacher, 	dean, 	teacher-
director,	
grade 	coordinator,
	and 	head 	counselor
	management
	or
supervisory 	within 	the 	meaning 	of 	Government 	Code
	section
3540.l(g) 	or 	(m),
	respectively,
	and
	therefore 	excluded 	from 	the
2

unit or should they be in the certificated teachers' negotiating
unit?
DISCUSSION
The District contends that all of the positions in question
fall within the statutory definition of management employee (sec.
3540.1 (g) ) or supervisory employee (sec. 3540.1(m) ) . Thus,
these positions should be excluded from the certificated unit as
required by section 3545 (b) (1) ." 	The Federation claims
2Section 3540.1(g) reads 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.
3 Section 3540.1(m) reads as follows:
'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 responsibility to assign work
to and direct them, or to adjust their
grievances, or effectively recommend such
action, if, in connection 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.
4 Section 3545 (b) (1) reads as follows:
(b) In all cases:
(1) A negotiating unit that includes classroom
teachers shall not be appropriate unless it at
least includes all of the classroom teachers
employed by the public school employer, except
management employees, supervisory employees,
and confidential employees.
3
unit
	or 	should 	they
	be
	in
	the
	certificated
	teachers' 	negotiating
unit?
DISCUSSION
The
	District
	contends
	that
	all
	of 	the
	positions
	in
	question
fall
	within
	the
	statutory 	definition
	of
	management
	employee
	(sec.
3540.l(g))
2
or
	supervisory
	employee
	(sec.
	3540.l(m))
. 3
Thus,
these
	positions
	should
	be
	excluded
	from
	the
	certificated
	unit
	as
required
	by
	section
	3545 (b)
(1).
4
The
	Federation
	claims
2section
	3540.l(g)
	reads
	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 	publicschool
	employer
	subject 	to
	review
	by
	the
Educational
	Employment
	Relations
	Board.
3section
	3540.l(m)
	reads
	as
	follows:
'Supervisory
	employee'
	means 	any
	employee,
regardless
	of 	job
	description,
	having
	authorityin 	the
	interest
	of 	the
	employer
	to
	hire,
transfer,
	suspend, 	lay
	off, 	recall,
	promote,
discharge, 	assign,
	reward, 	or
	discipline
	other
employees, 	or 	the
	responsibility 	to 	assign
	work
to
	and
	direct
	them,
	or 	to 	adjust 	their
grievances, 	or
	effectively
	recommend
	such
action,
	if,
	in 	connection 	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.
4section
	3545 (b) (1)
	reads
	as
	follows:
(b)
	In 	all. 	cases:
(1) 	A
negotiating 	unit 	that 	includes 	classroom
teachers 	shall
	not 	be
	appropriate 	unless
	it
	at
least 	includes
	all
	of 	the 	classroom 	teachersemployed 	by
	the 	public 	school 	employer, 	exceptmanagement 	employees, 	supervisory 	employees,and
	confidential 	employees.
3

that none of these positions are management or supervisory, but
rather the incumbents merely possess additional administrative
responsibilities as a result of their professional expertise and
motivation, and are appropriately part of the certificated
negotiating unit.
Although the District raises the question of management
status for each of the job positions in dispute, there is very
little evidence that any of the positions, other than the women's
studies/title IX coordinator position, involve functions that
could be considered management.
For the reasons which follow, it is found that the positions
of women's studies/title IX coordinator and dean are neither
supervisory nor management within the meaning of the Educational
Employment Relations Act (hereafter EERA) and thus are included
within the unit. Further, it is found that the positions of
department chairperson, head teacher, teacher-director, grade
coordinator, and head counselor are supervisory within the meaning
of section 3540.1 (m) and thus are excluded from the negotiating
Women's Studies/Title IX Coordinator
unit.
The women's studies/title IX coordinator is found not to be a
management employee as defined in section 3540.1 (g) which provides
that "' [management employee' means any employee in a position
having significant responsibilities for formulating district
policies or administering district programs . .
that
	none
	of 	these
	positions
	are
	management
	or
	supervisory,
	but
rather
	the
	incumbents
	merely
	possess
	additional 	administrative
responsibilities
	as
	a
	result
	of
	their
	professional
	expertise
	ana
motivation,
	and
	are
	appropriately
	part
	of 	the
	certificated
negotiating
	unit.
Although
	the
	District
	raises
	the
	question 	of
	management
status
	for
	each 	of
	the
	job
	positions
	in
	dispute, 	there
	is
	very
little
	evidence
	that
	any
	of
	the
	positions,
	other
	than 	the
	women I s
studies/title
	IX
	coordinator
	position,
	involve
	functions
	that
could
	be
	considered
	management.
Fo:r
	the 	reasons
	which
	follow,
	it
	is
	found
	that
	the
	positions
of
	women's
	studies/title
	IX
	coordinator
	and
	dean
	are
	neither
supervisory
	nor
	management
	within 	the
	meaning
	of 	the 	Educational
Employment
	Relations
	Act
	(hereafter
	EERA)
	and
	thus 	are 	included
within 	the
	unit. 	Further,
	it
	is
	found
	that
	the
	positions
	of
department
	chairperson,
	head
	teacher, 	teacher-director,
	grade
coordinator,
	and 	head
	counselor 	are 	supervisory 	within 	the
	meaning
of
	section
	3540.l(m)
	and
	thus 	are 	excluded
	from
	the 	negotiating
unit.
Women's
	Studies/Title
	IX
	Coordinator
The 	women's
	studies/title
	IX
	coordinator 	is
	found 	not
	to
	be
	a
management 	employee 	as 	defined 	in 	section
	3540.1
(g)
	which
	provides
that"'
[m]anagement 	employee' 	means 	any 	employee
	in
	a
	position
having 	significant 	responsibilities 	for 	formulating
	district
policies 	or 	administering 	district
	programs 	.
4

The women's studies/title IX coordinator is appointed by the
District for an indefinite period and receives greater
compensation than other certificated employees. She has a role in
developing curriculum for inclusion in the regular instructional
program of the District. This curriculum is designed to create a
non-discriminatory environment. There was no evidence that this
role in developing curriculum rises to the level of independently
formulating District educational policy. Rather, the women's
studies/title IX coordinator merely recommends changes in
curriculum to the superintendent's office for consideration.
The women's studies/title IX coordinator's role in curriculum
is analogous to that of the project engineers in Flintkote Co.
(1975) 217 NLRB 497 [89 LRRM 1295] where it was found that
"management decision makers, must, as a practical matter, rely
heavily on the discretion and technical expertise of the project
engineers." In Flintkote, the NLRB concluded that project
engineers were not management "notwithstanding the fact that their
work may cause changes in company direction" in that "[their
discretions and decisions are predicated solely on a technical
base, and culminate in technical reports or recommendations to
superiors who, in turn, determine, establish, and carry out
management direction, i.e., 'policy, ' by approving or disapproving
the recommendations presente
The women's studies/title IX coordinator is the person in the
5Flintkote Co., ibid. , quoting General Dynamics Corporation,
(1974) 213 NLRB 851 [87 LRRM 1705] .
55
The
	women's
	studies/title
	IX
	coordinator
	is
	appointed
	by
	the
District
	for
	an
	indefinite
	period
	and
	receives
	greater
compensation 	than
	other
	certificated
	employees.
	She
	has
	a
	role
	in
developing 	curriculum
	for 	inclusion 	in
	the
	regular
	instructional
program
	of 	the
	District.
	This
	curriculum
	is
	designed
	to 	create
	a
non-discriminatory
	environment.
	There
	was 	no
	evidence
	that 	this
role
	in
	developing 	curriculum
	rises
	to
	the
	level
	of 	independently
formulating
	District
	educational 	policy.
	Rather, 	the
	women's
studies/title
	IX
	coordinator
	merely
	recommends
	changes
	in
curriculum
	to
	the
	superintendent's
	office
	for
	consideration.
The
	women's
	studies/title
	IX
	coordinator's 	role 	in
	curriculum
is
	analogous
	to
	that
	of 	the
	project
	engineers 	in
	Flintkote
	Co.
(1975)
	217
	NLRB
	497 	[89
	LRRM
	1295]
	where
	it
	was
	found
	that
"management
	decision
	makers, 	must, 	as
	a
	practical
	matter, 	rely
heavily
	on
	the
	discretion
	and
	technical 	expertise
	of 	the
	project
engineers."
	In
	Flintkote,
	the
	NLRB
	concluded
	that 	project
engineers
	were
	not
	management
	"notwithstanding 	the
	fact 	that 	their
work
	may
	cause 	changes
	in
	company
	direction" 	in
	that
	11
[t]heir
discretions
	and
	decisions 	are 	predicated 	solely
	on
	a
	technical
base,
	and
	culminate 	in 	technical 	reports
	or
	recommendations
	to
superiors
	who,
	in
	turn,
	determine,
	establish,
	and
	carry 	out
management
	direction,
	i.e.,
	'policy,'
	by
	approving 	or 	disapproving
11
	the 	recommendations
	presentea.	d. "
5
The 	women's
	studies/title
	IX
	coordinator 	is
	the 	person 	in 	the
5Flintkote 	Co., 	ibid.,	
quotinq 	General 	Dynamics
	Corporation,(1974) 	213
	NLRB
	851[87-LRRM 	1705].

District who completes the self-evaluation process required by the
federal Department of Health, Education and Welfare (HEW) and who
reports to HEW concerning the District's Title IX compliance. She
also conducts surveys monitoring District operations regarding
personnel policies, hiring procedures and evaluation procedures to
ensure that they are not sexually biased.
Specific changes in District programs have resulted from
these surveys. For example, changes were forthcoming in the
manner of dress in girls' physical education in the junior high
schools and changes were made relative to certain objectionable
language used in course descriptions in the high school. Although
the changes resulted from surveys by the women's studies/title IX
coordinator, she had no authority to require or independently
implement a change. The evidence is that if, for example, an
affected department chairperson does not voluntarily accept
recommended changes, the women's studies/title IX coordinator
cannot require the change. Rather, she can only recommend to the
chairperson's supervisor or to other District administrators that
the change be implemented.
Turning now to the issue of the women's studies/title IX
coordinator's supervisory status, the women's studies/title IX
coordinator is the individual who processes sex discrimination
grievances. During the one year period since appointment of the
women's studies/title IX coordinator, there was testimony that
there were three such grievances. Details of only one of the
grievances was presented by the District's director of
instructional services, which grievance concerned a complaint by a
District
	who
	completes
	the
	self-evaluation
	process 	required
	by
	the
federal
	Department
	of
	Health,
	Education
	and
	Welfare
	(HEW)
	and
	who
reports
	to
	HEW
	concerning 	the
	District's
	Title
	IX
	compliance.
	She
also
	conducts 	surveys 	monitoring
	District
	operations 	regarding
personnel
	policies,
	hiring
	procedures
	and
	evaluation
	procedures
	to
ensure
	that
	they 	are
	not
	sexually 	biased.
Specific
	changes
	in
	District
	programs
	have
	resulted
	from
these 	surveys.
	For
	example, 	changes
	were
	forthcoming
	in 	the
manner
	of
	dress
	in
	girls'
	physical
	education
	in
	the
	junior
	high
schools
	and
	changes
	were
	made
	relative
	to
	certain
	objectionable
language
	used
	in
	course
	descriptions
	in
	the
	high
	school.
	Although
the
	changes
	resulted
	from
	surveys
	by
	the
	women's
	studies/title
	IX
coordinator,
	she
	had
	no
	authority 	to 	require
	or 	independently
implement
	a
	change.
	The
	evidence
	is 	that
	if,
	for
	example,
	an
affected
	department
	chairperson
	does
	not
	voluntarily
	accept
recommended
	changes,
	the
	women's
	studies/title
	IX
	coordinator
cannot
	require
	the 	change.
	Rather,
	she 	can
	only
	recommend
	to
	the
chairperson's 	supervisor 	or
	to 	other
	District
	administrators 	that
the
	change
	be
	implemented.
Turning
	now
	to 	the 	issue 	of 	the
	women's
	studies/title
	IX
coordinator's 	supervisory
	status,
	the
	women's
	studies/title
	IX
coordinator 	is
	the 	individual
	who
	processes 	sex
	discrimination
grievances.
	During
	the
	one
	year 	period 	since 	appointment 	of 	the
women's
	studies/title
	IX
	coordinator, 	there
	was
	testimony
	that
there
	were
	three 	such 	grievances. 	Details 	of 	only 	one 	of 	the
grievances
	was
	presented
	by
	the
	District's 	director 	of
instructional 	services, 	which 	grievance 	concerned
	a
	complaint 	by 	a
6

parent that a textbook contained a sexist statement. There is no
evidence that the women's studies/title IX coordinator has
authority to adjust these grievances or that these grievances
relate to employer-employee relations. Rather, in the case of the
textbook, it was testified that the coordinator merely brought the
alleged sexist statement to the attention of the school
administration and classroom teachers. 	(This testimony itself was
uncorroborated hearsay and thus inadmissible. Cal. Admin. Code
title 8, sec. 35026.) 	Thus, there is no evidence that the
"grievances" dealt with are of a type commonly considered to be a
normal part of employer/employee relations or that the women's
studies/title IX coordinator has authority to adjust these
grievances.
The women's studies/title IX coordinator administers a budget
of $5,000. This money is utilized for purchasing supplies
routinely needed. There is only a limited exercise of discretion
in this area. Any purchase of over $300 must be approved by the
District administration.
The present women's studies/title IX coordinator has two
part-time employees who work with her, one is certificated and one
is a secretary, a classified employee. Regarding the certificated
employee the record is not clear as to whether the women's
studies/title IX coordinator supervises this employee. The
director of instructional services stated at one point that the
women's studies/title IX coordinator does not have the authority
to direct the work of the certificated employee. However, later,
she responded to the contrary. In light of this limited and
parent
	that
	a
	textbook
	contained
	a
	sexist
	statement.
	There
	is
	no
evidence
	that
	the
	women's
	studies/title
	IX
	coordinator
	has
authority 	to 	adjust
	these 	grievances
	or
	that
	these 	grievances
relate
	to
	employer-employee
	relations.
	Rather, 	in
	the 	case	
of 	the
textbook,
	it
	was
	testified
	that
	the
	coordinator
	merely 	brought 	the
alleged
	sexist
	statement 	to 	the
	attention
	of
	the 	school
administration	
and	
classroom
	teachers.
	(This
	testimony
	itself
	was
uncorroborated 	hearsay
	and
	thus
	inadmissible.
	Cal.
	Admin. 	Code
title
	8,
	sec.
	35026.) 	Thus,
	there
	is
	no
	evidence
	that
	the
"grievances"
	dealt
	with
	are 	of
	a
	type
	commonly
	considered
	to
	be
	a
normal
	part
	of
	employer/employee
	relations
	or
	that
	the
	women's
studies/title
	IX
	coordinator
	has
	authority 	to 	adjust 	these
grievances.
The
	women's
	studies/title
	IX
	coordinator 	administers
	a
	budget
of 	$5,000. 	This
	money
	is 	utilized
	for 	purchasing
	supplies
routinely
	needed. 	There
	is
	only
	a
	limited 	exercise
	of
	discretion
in
	this
	area.
	Any
	purchase
	"'-/.L	
r\'F	
ovor
	._
	"-".L. 	$30"
V
	must	
.!.!	
ha	
Iv\,..,..	
'-A.
=>pprrn,ed
	..t..'-.,,V	
;;..,,J.	
hu
	tho
	11..1;'-
District
	administration.
The
	present
	women's
	studies/title
	IX
	coordinator
	has
	two
part-time
	employees
	who
	work
	with
	her,
	one
	is 	certificated
	and 	one
is
	a
	secretary,
	a
	classified
	employee. 	Regarding 	the
	certificated
employee
	the 	record
	is
	not
	clear
	as
	to
	whether
	the
	women's
studies/title
	IX
	coordinator 	supervises 	this
	employee.
	The
director
	of
	instructional 	services 	stated 	at
	one
	point 	that 	the
women's
	studies/title
	IX
	coordinator 	does 	not 	have 	the 	authority
to 	direct 	the
	work
	of 	the 	certificated
	employee. 	However,
	later,
she 	responded 	to 	the 	contrary. 	In 	light 	of 	this 	limited 	and
7

equivocal testimony, the District has not met its burden of proof
that the women's studies/title IX coordinator supervises the
certificated employee. With respect to the secretary, a non-unit
classified employee, the mere fact that the women's studies/title
IX coordinator has a secretary does not make her a supervisor.
Washington Unified School District (6/27/78) PERB Decision No. 56;
Adelphi University (1972) 195 NLRB 639, 643-4 [79 LRRM 1545. ]
The evidence shows that the women's studies/title IX
coordinator monitors district programs and policies and makes some
recommendations regarding them, but this also does not, by itself,
result in supervisory or management status. It is found that the
women's studies/title IX coordinator is not a management or
supervisory employee.
Department Chairpersons
Berkeley High School is administratively divided into
approximately 15 departments. 	These departments vary in size from
four to twenty-three teachers. Each department has one
chairperson who is appointed by the principal for a term of two
years . 	The principal's selection is made from two candidates
nominated by the department's members. If the principal is not
satisfied with either nominee, he can return the names to the
department and ask for two additional names. The evidence
indicates that this first rejection is rare but has occurred on
occasion.
Department chairpersons receive release time from their
teaching responsibilities in order to carry out their duties as
chairpersons. The amount of release time varies with the size of
8
equivocal 	testimony,
	the
	District
	has
	not
	met
	its
	burden
	of
	proof
that
	the
	women's
	studies/title
	IX
	coordinator 	supervises 	the
certificated
	employee.
	With
	respect
	to
	the
	secretary,
	a
	non-unit
classified
	employee,
	the
	mere
	fact 	that
	the
	women's
	studies/title
IX
	coordinator
	has
	a
	secretary
	does
	not
	make
	her
	a
	supervisor.
Washington
	Unified
	School
	District
	(6/27/78)
	PERB
	Decision
	No.
	56;
Adelphi
	University
	(1972) 	195
	NLRB
	639,
	643-4
	[79
	LRRM
	1545.]
The
	evidence
	shows
	that
	the
	women's
	studies/title
	IX
coordinator
	monitors
	district
	programs
	and
	policies
	and 	makes
	some
recommendations
	regarding
	them,
	but
	this
	also
	does
	not,	
by	
itself,
result
	in 	supervisory
	or
	management
	status.
	It
	is
	found
	that
	the
women's
	studies/title
	IX
	coordinator
	is
	not
	a
	management
	or
supervisory
	employee.
Department
	Chairpersons
Berkeley
	High
	School
	is
	administratively
	divided
	into
approximately
	15
	departments.
	These
	departments 	vary
	in
	size
	from
four
	to 	twenty-three 	teachers.
	Each
	department
	has 	one
chairperson
	who
	is
	appointed
	by
	the
	principal
	for
	a
	term
	of
	two
years.
	The
	principal
1 s
	selection 	is
	made
	from
	two
	candidates
nominated
	by
	the 	department
1 s
	members.
	If
	the
	principal	
js	
not
satisfied
	with
	either
	nominee, 	he 	can
	return 	the
	names
	to 	the
department
	and
	ask
	for
	two
	additional
	names. 	The
	evidence
indicates 	that 	this
	first
	rejection 	is 	rare 	but 	has
	occurred
	on
occasion.
Department 	chairpersons 	receive 	release 	time 	from
	their
teaching 	responsibilities 	in 	order 	to 	carry 	out 	their 	duties 	as
chairpersons.
	The 	amount 	of 	release 	time 	varies 	with 	the 	size 	of
8

the departments, from 60 percent in the larger departments to
20 percent in the smaller. Also, they are required to work five
extra days per year and receive approximately $1,800 in additional
compensation.
Because department chairpersons have the authority to
reprimand department members concerning certain aspects of their
work performance, they are found to be supervisory.
The department chairperson is responsible for informally
disciplining, and reprimanding, if necessary, department members
concerning such matters as proper utilization of conference
periods, getting to school on time and keeping the doors to their
rooms locked. The school principal becomes involved only in cases
where the department chairperson has trouble resolving the problem
with a particular teacher. Sarah Harrington, a department
chairperson called as a Federation witness, testified on direct
examination that teachers have requested her, as department
chairperson, to work out problems between them and " . . . if
something is going wrong to reprimand."
Department chairpersons have issued written reprimands to
teachers. These are sent to the principal who, except on one
occasion, placed the reprimands in the teachers' personnel files.
Therefore, it is found that the chairpersons have the authority to
effectively recommend disciplinary action.
Unlike chairpersons' authority to effectively reprimand
department members, the following duties discussed do not indicate
supervisory status.
The District utilizes a four step grievance procedure; the
the 	departments,
	from
	60
	percent 	in
	the
	larger
	departments
	to
20
	percent 	in 	the
	smaller.
	Also, 	they 	are 	required
	to
	work
	five
extra
	days
	per 	year
	and
	receive
	approximately
	$1,800
	in
	additional
compensation.
Because
	department
	chairpersons
	have
	the
	authority
	to
reprimand 	department
	members
	concerning
	certain
	aspects 	of
	their
work
	performance, 	they
	are
	found
	to
	be
	supervisory.
The
	department
	chairperson
	is
	responsible 	for 	informally
disciplining,
	and
	reprimanding,
	if
	necessary,
	department
	members
concerning
	such
	matters
	as
	proper
	utilization
	of 	conference
periods, 	getting
	to
	school
	on
	time
	and
	keeping
	the
	doors
	to
	their
rooms
	locked.
	The
	school
	principal
	becomes
	involved 	only
	in 	cases
wherE>
	the
	department
	chairperson
	has
	trouble 	resolving 	the
	problem
with
	a
	particular
	teacher.
	Sarah
	Harrington,
	a
	department
chairperson 	called
	as
	a
Federation 	witness,
	testified
	on
	direct
examination
	that
	teachers
	have
	requested 	her,
	as
	department
chairperson, 	to
	work
	out
	problems 	between
	them
	and"
	•..
	if
something
	is
	going
	wrong
	to
	reprimand.
11
Department
	chairpersons
	have
	issued 	written
	reprimands
	to
teachers.
	These
	are 	sent 	to 	the
	principal
	who,
	except
	on
	one
occasion, 	placed 	the 	reprimands 	in 	the
	teachers' 	personnel
	files.
Therefore,
	it
	is
	found
	that 	the 	chairpersons
	have
	the
	authority 	to
effectively
	recommend
	disciplinary 	action.
Unlike 	chairpersons' 	authority 	to 	effectively
	reprimand
department 	members, 	the 	fol1owing 	duties 	discussed
	do
	not 	indicate
supervisory 	status.
The
	District 	utilizes
	a
	four 	step 	grievance 	procedure; 	the
9

initial step is informal resolution and the final step is an
appeal to the Board of Education. The grievance procedure defines
grievance as "a claim based upon the interpretation, meaning, or
application of any of the provisions of these policies, other
rules or policies of the district, or of applicable statutes."
(There is a separate contract grievance procedure which is not
involved here.) The evidence indicates that chairpersons
informally resolve some grievances at the first step of the
procedure.
The principal of Berkeley High School testified that between
50 and 100 grievances were taken through Step I. Because Step I
grievances are not reduced to writing, he was unaware of the exact
number. However, the principal testified that these grievances
related to such subjects as: room assignment, disproportionate use
of a movie projector, or ordered films not received regularly. He
added that they are ". . . not grievances as you might think of
them in terms of a professional organization grieving. " This was
the only specific evidence presented concerning the nature of the
kinds of grievances adjusted by the department chairpersons.
Thus, there is no evidence that department chairpersons
adjust grievances concerning employment relations matters as
opposed to the more mundane "housekeeping" types of complaints to
which the principal testified.
Department chairpersons are responsible for completing
written performance evaluations of the teachers in their
departments. District policy requires a minimum of one evaluation
every two years. In order to evaluate the teacher, the
10
initial
	step
	js
	informal
	resolution
	and
	the
	final
	step
	is
	an
appeal
	to
	the
	Board
	of
	Education.
	The
	grievance
	procedure
	defines
grievance
	as
	"a
	claim
	based
	upon
	the
	interpretation,
	meaning, 	or
application
	of
	any
	of 	the
	provisions
	of
	these
	policies,
	other
rules
	or
	policies
	of 	the
	district,
	or 	of
	applicable
	statutes."
(There
	is
	a
	separate 	contract
	grievance 	procedure
	which
	is
	not
involved
	here.)
	The
	evidence
	indicates 	that
	chairpersons
informally 	resolve
	some
	grievances
	at
	the
	first
	step
	of
	the
procedure.
The
	principal
	of 	Berkeley
	High
	School
	testified
	that
	between
50
	and 	100
	grievances
	were
	taken 	through 	Step
	I.
	Because
	Step
	I
grievances 	are
	not 	reduced
	to 	writing,
	he
	was
	unaware
	of 	the 	exact
number. 	However,
	the
	principal
	testified
	that
	these 	grievances
related
	to
	such
	subjects 	as:
	room
	assignment,
	disproportionate
	use
of
	a
	movie
	projector,
	or 	ordered 	films
	not
	received
	regularly.
	He
added
	that
	they
	are"
.••
	not 	grievances
	as
	you
	might
	think
	of
them
	in
	terms
	of
	a
	professional 	organization 	grieving.
0	
This
	was
the 	only
	specific
	evidence 	presented 	concerning 	the 	nature 	of 	the
kinds 	of 	grievances 	adjusted
	by
	the 	department
	chairpersons.
Thus,
	there
	is
	no
	evidence
	that
	department
	chairpersons
adjust 	grievances 	concerning
	employment
	relations 	matters 	as
opposed
	to 	the
	more 	mundane
	"housekeeping" 	types 	of 	complaints 	to
which
	the 	principal 	testified.
Department 	chairpersons 	are 	responsible 	for 	completing
written 	performance 	evaluations 	of 	the 	teachers 	in 	their
departments. 	District 	policy 	requires
	a 	minimum
	of 	one
	evaluation
every 	two
	years. 	In 	order 	to 	evaluate 	the 	teacher, 	the
10

chairperson makes a minimum of two classroom observations. Each
observation lasts at least 20 minutes. The chairperson completes
and signs the evaluation form and forwards it to the principal for
review. There is no evidence that the principal makes any
independent evaluation. The principal then forwards the
evaluation form to the District offices.
The District uses the performance evaluations of probationary
employees in determining whether to grant permanent tenured
status. While the decision to grant tenure rests with the school
principal, he or she is guided by the chairperson's performance
evaluations. Unfortunately, the evidence as to whether the
principal ever approves tenure if the evaluations are
unsatisfactory is not clear. The District claims that it does not
grant tenure to teachers receiving unsatisfactory evaluations.
But Judy Bodenhausen, the Federation president, testified that on
at least one occasion a teacher with unsatisfactory evaluations
was granted tenure. The issue is further clouded by the fact that
no teachers recently have been denied tenure. Thus, evidence
seeking to establish the supervisory status of the chairpersons
through the performance evaluation criterion is inconclusive.
The evidence does not show that the department chairpersons
make effective recommendations regarding hiring or transfers
within the District. Job applicants are referred to the school
principal by the District personnel office. They are interviewed
by the principal who then refers them to the department
chairperson for an interview. The chairperson and the principal
then meet to determine which candidate should be recommended to
11
chairperson
	makes
	a
	minimum
	of
	two
	classroom
	observations.
	Each
observation
	lasts
	at
	least
	20
	minutes.
	The
	chairperson
	completes
and
	signs
	the
	evaluation
	form
	and
	forwards
	it
	to
	the
	principal
	for
review.
	There
	is
	no
	evidence
	that
	the
	principal
	makes
	any
independent
	evaluation.
	The
	principal
	then 	forwards
	the
evaluation
	form
	to 	the
	District 	offices.
The
	District
	uses
	the
	performance
	evaluations
	of
	probationary
employees
	in
	determining
	whether
	to 	grant
	permanent
	tenured
status.
	While
	the
	decision 	to
	grant 	tenure
	rests
	with 	the 	school
principal,
	he
	or 	she
	is
	guided
	by
	the
	chairperson's
	performance
.
evaluations. 	Unfortunately,
	the 	evidence 	as
	to
	whether
	the
principal
	ever 	approves
	tenure
	if
	the 	evaluations 	are
unsatisfactory 	is
	not
	clear.
	The
	District
	claims
	that
	it
	does 	not
grant 	tenure 	to 	teachers 	receiving
	unsatisfactory 	evaluations.
But
	Judy 	Bodenhausen,
	the 	Federation
	president,
	testified
	that
	on
at
	least
	one
	occasion
	a
	teacher	
with	
unsatisfactory 	evaluations
was
	granted 	tenure.	
The	
issue
	is
	further	
clouded	
by	
the	
fact	
that
no
	teachers 	recently
	have 	been
	denied
	tenure.
	Thus,
	evidence
seeking
	to 	establish
	the 	supervisory
	status
	of 	the 	chairpersons
through 	the 	performance
	evaluation
	criterion 	is
	inconclusive.
The
	evidence 	does 	not
	show
	that
	the 	department 	chairpersons
make
	effective
	recommendations
	regarding 	hiring 	or
	transfers
within 	the
	District.
	Job
	applicants 	are 	referred 	to 	the 	school
principal	
by	
the
	District
	personnel
	office.
	They
	are 	interviewed
by
	the 	principal
	who
	then 	refers
	them
	to 	the 	department
chairperson 	for
	an
	interview.
	The
	chairperson
	and
	the 	principaJ.
then 	meet 	to 	determine 	which 	candidate 	should 	be 	recommended 	to
11

the superintendent. The District contends that a chairperson can
veto any candidate he or she thinks is unfit for a position in the
department . 	The evidence in this area was limited, in that the
District has hired only one teacher in the past three years.
However, there was one specific instance when the chairperson of
the science department vetoed a candidate who then was hired by
the District, but not in the science department. Later, the
teacher was transferred into the science department against the
express wishes of the chairperson. Likewise, the history
department chairperson testified that she has had no control over
transfers into her department.
Although the District's procedures indicate that the
chairpersons may have had authority over the areas of assigning
work, assigning classrooms and establishing budget priorities, it
is concluded on the basis of the testimony adduced at the hearing
that, whatever the case historically, they are not currently
exercising this authority independently. The evidence clearly
demonstrates that in these areas the decisions made by the
department chairpersons are done on a collegial basis only after
lengthy consultation with fellow department members. In the only
specific instance cited of a teacher being forced to teach a
course against her wishes, it was the vice principal and not the
chairperson who made the assignment.
Further, although it is contended that chairpersons monitor
attendance at department meetings, the chairpersons who testified
stated that they did not perform this function.
In Sweetwater Union High School District (11/23/76) EERB
12
the
	superintendent.
	The
	District
	contends
	that
	a
	chairperson
	can
veto
	any
	candidate
	he
	or 	she
	thinks
	is
	unfit
	for
	a
	position
	in 	the
department.
	The
	evidence
	in
	this
	area
	was
	limited,
	in
	that
	the
District
	has
	hired
	only
	one
	teacher 	in
	the
	past 	three 	years.
However,
	there
	was
	one
	specific
	instance
	when
	the
	chairperson
	of
the 	science
	department 	vetoed
	a
	candidate
	who
	then
	was
	hired
	by
the
	District,
	but
	not
	in
	the
	science
	department.
	Later,
	the
teacher
	was
	transferred 	into
	the 	science
	department
	against
	the
express
	wishes
	of 	the
	chairperson.
	Likewise, 	the
	history
department
	chairperson
	testified
	that
	she
	has
	had
	no
	control
	over
transfers 	into
	her
	department.
Although
	the
	District's
	procedures
	indicate 	that
	the
chairpersons
	may
	have
	had
	authority
	over 	the 	areas 	of 	assigning
work,
	assigning
	classrooms
	and
	establishing
	budget
	priorities,
	it
is
	concluded
	on
	the
	basis
	of 	the 	testimony
	adduced
	at
	the 	hearing
that,
	whatever
	the 	case
	historically,
	they 	are
	not
	currently
exercising
	this
	authority
	independently.
	The
	evidence
	clearly
demonstrates
	that
	in 	these 	areas 	the 	decisions
	made
	by
	the
department 	chairpersons 	are
	done 	on
	a
	collegial 	basis
	only
	after
lengthy 	consultaU
on
	with 	fellow 	department
	members.
	In 	the
	only
specific
	instance 	cited
	of
	a
	teacher 	being 	forced 	to 	teach
	a
course 	against
	her 	wishes,
	it
	was
	the 	vice 	principal
	and
	not 	the
chairperson
	who 	made
	the 	assignment.
Further, 	although
	it
	is
	contended
	that 	chairpersons 	monitor
attendance 	at 	department 	meetings, 	the 	chairpersons
	who
	testified
stated 	that 	they 	did 	not 	perform
	this 	function.
In 	Sweetwater 	Union 	High 	School 	District 	(11/23/76) 	EERB
12

Decision No. 4, the EERB considered the meaning of Government Code
section 3540.1(m) . It was determined that because this section is
written in the disjunctive an employee need not possess all of the
enumerated functions to be found a supervisor within the meaning
of the EERA, rather "the performance of any one of the enumerated
actions or the effective power to recommend such action is
sufficient to make one a supervisor within the meaning of the Act."
Thus, in the present case, despite the inconclusive testimony
regarding other indicia of supervisory status, inasmuch as
department chairpersons have the authority to effectively
reprimand department members, it is found that they are
supervisory employees within the meaning of the EERA.
Children's Center - Head Teacher
The District operates seven children's centers for preschool
age children. The centers open at 7:30 a.m. and remain open until
6:00 p.m. 	The centers are attended by at least 50 children and
are staffed by between 13 and 20 classified and certificated
employees. Because the centers are open long hours, they require
two shifts of employees. However, each center has only one site
administrator , the head teacher.
Head teachers are appointed by the District. 	They have no
fixed daily hours, receive extra compensation for their additional
duties and are required to work a slightly longer work year than
other teachers. Head teachers are required to have only two and
one-half hours of contact time per day with the students. 	The
remainder of the day is spent discharging the special functions of
head teacher.
13
Decision
	No.
	4, 	the
	EERB
	considered 	the
	meaning
	of
	Government
	Code
section
	3540.l(m).
	It
	was
	determined
	that
	because
	this
	section
	is
written
	in
	the
	disjunctive
	an
	employee 	need
	not 	possess
	all
	of 	the
enumerated
	functions 	to
	be 	found
	a
	supervisor 	within 	the
	meaning
of 	the
	EERA,
	rather
	"the
	performance
	of
	any
	one
	of
	the
	enumerated
actions
	or
	the
	effective
	power
	to
	recommend
	such
	action
	is
sufficient
	to
	make
	one
	a
	supervisor 	within 	the
	meaning
	of 	the 	Act."
Thus,
	in 	the
	present 	case, 	despite 	the 	inconclusive
	testimony
regarding 	other
	indicia
	of 	supervisory
	status,
	inasmuch
	as
department
	chairpersons
	have
	the
	authority 	to
	effectively
reprimand 	department
	members,
	it
	is
	found
	that
	they
	are
supervisory
	employees
	within 	the
	meaning
	of
	the
	EERA.
Children's
	Center
	-
	Head
	Teacher
The
	District
	operates
	seven
	children's
	centers
	for 	preschool
age
	children.
	The
	centers
	open
	at
	7:30 	a.m.
	and
	remain 	open
	until
6:00 	p.m.
	The
	centers 	are 	attended
	by
	at 	least
	50
	children
	and
are
	staffed
	by
	between
	13 	and
	20
	classified
	and
	certificated
employees. 	Because
	the
	centers 	are
	open
	long
	hours, 	they
	require
two
	shifts
	of
	employees.
	However, 	each
	center
	has
	only
	one
	site
administrator,
	the
	head
	teacher.
Head
	teachers 	are 	appointed
	by
	the
	District.
	They
	have
	no
fixed 	daily 	hours, 	receive 	extra
	compensation 	for
	their 	additional
duties
	and
	are 	required 	to
	work
	a
	slightly
	longer
	work
	year 	than
other 	teachers.
	Head
	teachers 	are 	required 	to
	have
	only 	two 	and
one-half 	hours 	of 	contact 	time 	per 	day 	with 	the 	students.
	The
remainder 	of 	the 	day
	is 	spent 	discharging 	the 	special 	functions 	of
head 	teacher.
1 -:i	
.J.J

The head teacher schedules the work assignments of the
personnel at the center and has authority to require an employee
to correct or improve his or her work performance.
The head teacher is responsible for completing performance
evaluations for employees in the children's center.
On at least one occasion, a head teacher has effectively
recommended the discharge of a teacher at her school. It was the
result, in part, of an unsatisfactory evaluation and several
conferences between the head teacher and the employee involved.
With respect to transfer of teachers into their centers, head
teachers make requests to the director of prekindergarten and
elementary instruction for specific personnel from a pool of
teachers who have requested transfers into the children's center.
However, sometimes their requests are honored and other times they
are not. 	The evidence demonstrates that head teachers' requests
do not rise to the level of effectively recommending transfers.
Although the director of prekindergarten and elementary
education asserted that the head teachers adjust grievances, no
specific testimony was elicited, e.g. , how many or what issues
were involved in these grievances.
In the absence of more specific evidence it is not found that
the head teacher has the authority to adjust grievances.
However, because the head teachers make effective
recommendations regarding dismissal of teachers, and also have
authority to assign work and to require correction of improperly
performed work, this position is found to be supervisory and thus
excluded from the certificated negotiating unit.
14
The
	head
	teacher 	schedules 	the
	work
	assignments
	of 	the
personnel
	at
	the
	center
	and
	has
	authority
	to 	require
	an
	employee
to
	correct
	or
	improve
	his
	or 	her
	work
	performance.
The
	head
	teacher
	is
	responsible 	for
	completing 	performance
evaluations 	for
	employees
	in 	the
	children's
	centero
On
	at 	least
	one
	occasion,
	a
	head
	teacher
	has
	effectively
recommended
	the 	discharge
	of
	a
	teacher
	at
	her
	schoolo
	It
	was
	the
result,
	in
	part,
	of
	an
	unsatisfactory
	evaluation
	and
	several
conferences
	between
	the
	head
	teacher
	and
	the
	employee
	involved.
With
	respect
	to
	transfer
	of 	teachers 	into
	their
	centers,
	head
teachers
	make
	requests 	to
	the
	director
	of
	prekindergarten
	and
elementary
	instruction
	for
	specific
	personnel
	from
	a
	pool 	of
teachers
	who
	have
	requested
	transfers 	into
	the
	children's 	center.
However, 	sometimes
	their
	requests 	are
	honored
	and
	other
	times 	they
are 	not.
	The
	evidence 	demonstrates
	that
	head
	teachers' 	requests
do
	not
	rise
	to 	the
	level 	of
	effectively
	recommending
	transfers.
Although
	the
	director
	of 	prekindergarten
	and
	elementary
education 	asserted 	that
	the
	head
	teachers 	adjust 	grievances,
	no
specific
	testimony
	was
	elicited, 	e.g.,
	how
	many
	or
	what
	issues
were
	involved 	in 	these 	grievances.
In 	the 	absence
	of
	more
	specific
	evi
	nee
	it
	is
	not 	found
	t 	t
the
	head 	has
	the 	aut
	ity
	to 	ust 	grievances.
However, 	use	
t
	head
	te 	rs
	make
	effective
recommendations 	regardi 	dismissal 	teachers,
	and
	also
authority 	to 	assign
	work 	and 	to 	require 	correction 	of 	improperly
performed work,
	this 	position 	is
	found 	to 	be 	supervisory 	and 	thus
excluded 	from 	the 	certificated negotiating 	unit.
14

Deans
There are three dean positions in the District's junior high
schools. Although each of the deans has a slightly different job
indefinite period. They are required to possess an administrative
title, their duties are similar. Unlike department chairpersons,
deans are directly appointed by the District administration for an
credential. While teachers work a six and one-half hour day ,
deans work a straight eight-hour day. Deans also receive a 13
percent pay differential over and above the amount paid to
teachers. Further, deans have no teaching responsibilities.
The District director of instructional services testified
that deans have the first-line authority to adjust grievances
brought by teachers and counselors pursuant to the District's
grievance procedure. This function was previously performed by
the junior high school department chairpersons who now are in the
negotiating unit.
Unlike department chairpersons, there was no evidence
presented by the District as to the kinds of grievances adjusted
by deans. Thus, since the District has the burden of proof to
show that deans have supervisory status exempting them from the
negotiating unit, for purposes of this decision it must be
presumed that deans adjust the same sort of "housekeeping
grievances" as department chairpersons and do not adjust
grievances involving employment relations matters.
Although the evidence indicates that the deans are required
15
Deans
There
	are
	three
	dean
	positions 	in
	the
	District's
	junior
	high
schools.
	Although 	each
	of 	the
	deans
	has
	a
	slightly 	different
	job
title,
	their
	duties
	are
	similar.
	Unlike 	department
	chairpersons,
deans
	are
	directly
	appointed
	by
	the
	District
	administration
	for
	an
indefinite
	period.
	They
	are 	required
	to
	possess
	an
	administrative
credential.
	While
	teachers
	work
	a
	six
	and
	one-half
	hour
	day,
deans
	work
	a
	straight
	eight-hour
	day.
	Deans
	also 	receive
	a
	13
percent
	pay
	differential
	over
	and
	above
	the
	amount
	paid
	to
teachers. 	Further,
	deans
	have
	no
	teaching
	responsibilities.
The
	District
	director
	of
	instructional
	services
	testified
that
	deans
	have
	the
	first-line
	authority 	to 	adjust
	grievances
brought
	by
	teachers
	and
	counselors 	pursuant
	to 	the
	District's
grievance 	procedure. 	This
	function
	was
	previously
	performed	
by
the 	junior
	hi.gh 	scl1ool	
department 	chairpers•ons	
who 	now
	are 	in 	the
negotiating 	unit.
Unlike 	department
	chairpersons, 	there
	was 	no
	evidence
presented	
by	
the
	District
	as
	to
	the 	kinds 	of 	grievances 	adjusted
by
	deans. 	Thus,
	since 	the
	District
	has
	the 	burden
	of 	proof 	to
show
	that
	deans 	have
	supervisory 	status
	exempting 	them 	from
	the
negotiating 	unit,
	for 	purposes 	of
	this 	decision
	it
	must 	be
presumed
	that
	deans
	adjust 	the
	same
	sort 	of 	"housekeeping
grievances" 	as 	department 	chairpersons
	and 	do
	not 	adjust
grievances 	involving 	employment
	relations 	matters.
Although 	the 	evidence 	indicates 	that 	the 	deans 	are 	required
15

to complete performance evaluations beginning in the 1977-1978
school year (in a manner previously set forth with respect to
]6
department chairpersons at page 11) , because junior high school
department chairpersons who previously did the evaluations now are
in the negotiating unit, there is no evidence that these
evaluations will be used as effective recommendations as to
matters set forth in section 3540.1 (m) .
There was testimony that the dean serves as acting principal
in the absence of both the principal and vice principal, but there
was no evidence that this occurs with any frequency. Occasional
substitution for a superior does not make an employee
supervisory. (See San Rafael City Schools (10/3/77) EERB Decision
No. 32 at p. 8.)
Therefore, it is found that deans are not supervisory
employees but rather are in the certificated negotiating unit.
Teacher-Directors
The District has three teacher-directors, two at Berkeley
High School and one at off-site schools known as
"Odyssey/Kilimanjaro." The Odyssey/Kilimanjaro schools are
alternative schools designed, respectively, for students from
kindergarten to grade six and from grade seven through nine. 	The
other two teacher-director positions are at Berkeley High School,
one denominated "College Prep" and the other "Model School A."
The authority possessed by the teacher-director at
Odyssey/Kilimanjaro differs from that of the teacher-directors a
College Prep and Model School A and will be treated separately.
Odyssey/Kilimanjaro. The teacher-director at
16
to
	complete 	performance
	evaluations
	beginning
	in
	the
	1977-1978
school
	year 	(in
	a
	manner
	previously
	set
	forth
	with
	respect 	to
department
	chairpersons
	at
	page
	11),
	because
	junior
	high
	school
department
	chairpersons	
who	
previously
	did 	the
	evaluations
	now
	are
in
	the
	negotiating
	unit,
	there
	is
	no
	evidence
	that
	these
evaluations
	will
	be
	used 	as
	effective
	recommendations
	as
	to
matters
	set
	forth
	in 	section
	3540.l(m).
There
	was
	testimony
	that
	the
	dean
	serves
	as
	acting
	principal
in 	the
	absence
	of
	both
	the
	principal
	and
	vice
	principal,
	but
	there
was 	no
	evidence
	that 	this
	occurs	
with 	any
	frequency. 	Occasional
substitution
	for
	a
	superior
	does
	not
	make
	an
	employee
supervisory.
	(See 	San
	Rafael 	City
	Schools 	(10/3/77)
	EERB
	Decision
No.
	32
	at 	p.8.)
Therefore,
	it
	is
	found
	that
	deans
	are
	not
	supervisory
employees
	but
	rather
	are 	in 	the
	certificated
	negotiating
	unit.
Teacher-Directors
The
	District
	has
	three 	teacher-directors,
	two
	at
	Berkeley
High
	School
	and 	one
	at
	off-site
	schools
	known
	as
"Odyssey/Kilimanjaro."
	The
	Odyssey/Kilimanjaro 	schools 	are
alternative
	schools 	designed,
	respectively, 	for 	students
	from
kindergarten 	to
	gracle
	six
	and 	from
	grade 	seven 	through
	nine.
	The
other
	two
	teacher-director 	positions 	are
	at
	Berkeley
	High
	School,
one 	denominated 	"College 	Prep"
	and
	the 	other
	"Model
	School 	A."
The
	authority 	possessed
	by
	the 	teacher-director 	at
Odyssey/Kilimanjaro
	differs
	from
	that 	of 	the 	teacher-directors 	at
College 	Prep 	and Model 	School
	A and
	will
	be
	treated 	separately.
Odyssey/Kilimanjaro. 	The
	teacher-director 	at

Odyssey/Kilimanjaro performs functions very similar to those
performed by both school principals and department chairpersons.
The teacher-director is appointed by the superintendent and
serves for an indefinite period. There is no rotation of this
position among the staff at Odyssey/Kilimanjaro.
The teacher-director works an eight-hour day compared to the
other teachers' six and one-half hour day, receiving additional
compensation for the duties of teacher-director amounting to
approximately 12 percent of a teacher's salary.
The teacher-director has a reduced teaching load and teaches
only one or two periods per day. The remainder of the day is
release time used to perform administrative functions.
The teacher-director also completes performance evaluations
for teachers at Odyssey/Kilimanjaro (in a manner similar to that
previously discussed with respect to department chairpersons at
page 11) . However, there is no evidence that these evaluations
are utilized as effective recommendations for the matters set
forth in section 3540.1 (m) . The completion of performance
evaluations is not one of the enumerated indicia of supervisory
status; hence, performing evaluations does not by itself make one
a supervisory employee within the meaning of the EERA.
The teacher-director at Odyssey/Kilimanjaro has significant
authority to hire new teachers. While other teachers may
participate in the interview process, it is the teacher-director
who makes the recommendation to the certificated personnel
director. In this capacity the teacher-director performs the same
function as school principals in staffing their schools. This
17
Odyssey/Kilimanjaro
	performs
	functions
	very
	similar 	to
	those
performed	
by	
both 	school
	principals
	and
	department
	chairpersons.
The
	teacher-director
	is
	appointed
	by
	the
	superintendent
	and
serves
	for
	an
	indefinite
	period.
	There
	is
	no
	rotation
	of
	this
position
	among
	the
	staff
	at
	Odyssey/Kilimanjaro.
The
	teacher-director
	works
	an
	eight-hour
	day 	compared
	to
	the
other 	teachers' 	six
	and
	one-half
	hour
	day,
	receiving 	additional
compensation
	for
	the
	duties
	of
	teacher-director
	amounting
	to
approximately
	12
	percent
	of
	a
	teacher's 	salary.
The
	teacher-director
	has
	a
	reduced
	teaching 	load
	and
	teaches
only
	one
	or
	two
	periods
	per 	day.
	The
	remainder 	of 	the
	day
	is
release
	time 	used
	to
	perform
	administrative 	functions.
The
	teacher-director 	also
	completes 	performance
	evaluations
for 	teachers
	at
	Odyssey/Kilimanjaro	
(in	
a
	manner
	similar 	to
	that
previously 	discussed 	with
	respect
	to
	department
	chairpersons 	at
page
	11).
	However,
	there
	is
	no
	evidence
	that
	these 	evaluations
are
	utilized
	as
	effective
	recommendations
	for 	the 	matters
	set
forth
	in 	sectjon
	3540.l(m).
	The
	completion 	of 	performance
evaluations
	is
	not
	one
	of 	the 	enumerated
	indicia
	of 	supervisory
status;
	hence, 	performing
	evaluations
	does 	not
	by
	itself
	make 	one
a
	supervisory
	employee
	within 	the
	meaning
	of 	the
	EERA.
The
	teacher-director 	at
	Odyssey/Kilimanjaro 	has
	significant
authority 	to 	hire
	new
	teachers.
	While
	other 	teachers
	may
participate 	in 	the 	interview 	process,
	it
	is 	the 	teacher-director
who 	makes
	the 	recommendation
	to 	the 	certificated 	personnel
director. 	In 	this 	capacity 	the 	teacher-director 	performs 	the
	same
function 	as 	school 	principals 	in 	staffing 	their 	schools. 	This
17

effective power to recommend the hiring of certificated personnel
is sufficient to give the teacher-director at Odyssey/Kilimanjaro
supervisory status.
Berkeley High School. Very little evidence was introduced
regarding the two teacher-directors at Berkeley High School.
However, witnesses for both the District and Federation
characterized these teacher-directors as having substantially the
same job functions as a department chairperson in that they direct
teachers in combined programs including subjects such as history,
English, reading and science. Hence, the job title represents a
distinction without a functional difference. Thus, based upon the
evidence presented that the high school department chairpersons
have the authority to reprimand department members, and are thus
supervisory, it likewise is found that the teacher-directors of
"College Prep" and "Model School A" are supervisors within the
meaning of section 3540.1 (m) .
Grade Coordinators
Grade coordinators are selected by the assistant
superintendent in charge of instruction and serve for an
indefinite period. The District expects them to work from 400 to
500 hours more per year than classroom teachers. They are
compensated at a rate above that of teachers.
Grade coordinators have no teaching responsibilities. 	Their
job function is entirely administrative. They are responsible for
attendance and discipline of an assigned group of students, along
with a team of three or four counselors. They have the authority
to direct the counselors in pupil attendance and disciplinary
18
effective
	power
	to
	recommend
	the
	hiring
	of
	certificated
	personnel
is 	sufficient
	to 	give 	the
	teacher-director 	at
	Odyssey/Kilimanjaro
supervisory
	status.
Berkeley
	High
	School.
	Very
	little
	evidence
	was
	introduced
regarding 	the
	two
	teacher-directors 	at
	Berkeley
	High
	School.
However,
	witnesses 	for
	both 	the
	District
	and
	Federation
characterized
	these
	teacher-directors	
as	
having
	substantially
	the
same
	job
	functions
	as
	a
	department
	chairperson 	in
	that
	they
	direct
teachers 	in
	combined
	programs
	including
	subjects
	such 	as
	history,
English,
	reading
	and
	science.
	Hence,
	the 	job
	title
	represents
	a
distinction
	without
	a
	functional 	difference.
	Thus, 	based
	upon
	the
evidence 	presented
	that
	the
	high
	school 	department
	chairpersons
have
	the
	authority 	to
	reprimand 	department
	members,	
and	
are 	thus
supervisory,
	it
	likewise
	is
	found
	that
	the
	teacher-directors 	of
"College 	Prep"
	and 	"Model
	School
	A"
	are 	supervisors 	within 	the
meaning
	of
	section
	3540.l(m).
18
Grade
	Coordinators
Grade	
coordinators 	are 	selected	
by
	the	
assistant
superintendent 	in	
charge
	of	
instruction	
and	
serve
	for
	an
indefinite
	period.
	The
	District
	expects
	them
	to
	work 	from 	400
	to
600 	hours
	more
	per 	year 	than 	classroom 	teachers.
	They
	are
compensated	
at
	a
	rate	
above
	that 	of 	teachers.
Grade
	coordinators
	have 	no 	teaching
	responsibilities.
	Their
job 	function
	is 	entirely 	administrative.
	They
	are 	responsible 	for
attendance
	and	
discipline	
of	
an	
assigned 	group 	of 	students, 	along
with	
a
	team 	of 	three 	or 	four 	counselors.
	They	
have 	the 	authority
to 	direct	
the 	counselors 	in 	pupil 	attendance	
and	
disciplinary

matters and to place written reprimands in counselors' personnel
files. They assist in the supervision of the school area and are
also responsible to see that teachers comply with District and
state procedures requiring notification of parents whenever
students are having scholastic or attendance problems.
Pursuant to the District's grievance procedure, the grade
coordinators are responsible for adjusting grievances at Step I.
Their role is to resolve disciplinary disputes between parents or
students on the one hand, and teachers on the other. If the
grievance proceeds to the higher, formal levels, the grade
coordinator usually is the person against whom the teacher files
the grievance.
Although the grade coordinators have limited responsibility
for some performance evaluations, the evidence is that their role
is advisory only.
Grade coordinators also supervise classified employees
such as: grade center clerks, attendance clerks and student
supervisors . 	The grade coordinators have the authority to
effectively recommend the hiring, firing, lay off, promotion,
transfer and adjust the grievances of these classified employees.
However, there is no evidence that grade coordinators spend a
substantial amount of time in supervising these non-unit
employees, thus such supervision is not a factor in finding grade
coordinators to be supervisory. Washington Unified School
District, supra at 2; Westinghouse Electric Corp. (1967) 163 NLRB
723, 726-27 [64 LRRM 1440.]
Because grade coordinators direct counselors in pupil
19
matters
	and
	to
	place
	written
	reprimands
	in 	counselors' 	personnel
files.
	They
	assist
	in 	the 	supervision
	of
	the
	school
	area
	and
	are
also 	responsible 	to
	see
	that
	teachers
	comply
	with
	District
	and
state
	procedures
	requiring
	notification
	of
	parents
	whenever
students
	are
	having
	scholastic
	or
	attendance
	problems.
Pursuant
	to 	the
	District's
	grievance 	procedure, 	the 	grade
coordinators 	are 	responsible 	for
	adjusting
	grievances
	at
	Step
	I.
Their
	role 	is
	to 	resolve
	disciplinary
	disputes
	between
	parents
	or
students
	on
	the
	one 	hand,
	and
	teachers
	on
	the
	other.
	If
	the
grievance
	proceeds
	to
	the 	higher,
	formal
	levels,
	the 	grade
coordinator 	usually
	is
	the 	person
	against
	whom
	the
	teacher
	files
the 	grievance.
Although
	the 	grade
	coordinators
	have
	limited
	responsibility
for
	some
	performance
	evaluations,
	the 	evidence
	is 	that
	their
	role
is
	advisory 	only.
Grade
	coordinators 	also 	supervise
	classified
	employees
such
	as:
	grade
	center 	clerks,
	attendance 	clerks
	and
	student
supervisors.
	The
	grade
	coordinators
	have
	the
	authority 	to
effectively
	recommend
	the
	hiring, 	firing,
	lay
	off,
	promotion,
transfer
	and
	adjust
	the 	grievances 	of 	these
	classified
	employees.
However,
	there 	is
	no
	evidence
	that
	grade 	coordinators
	spend
	a
substantial
	amount
	of 	time 	in 	supervising 	these 	non-unit
employees, 	thus 	such
	supervision 	is
	not
	a
	factor 	in 	finding 	grade
coordinators 	to
	be
	supervisory.
	Washington 	Unified 	School
District,
	supra 	at
	2; 	Westinghouse
	Electric
	Corp. 	(1967) 	163
	NLRB
7 2 3 , 	7 2 6 - 2 7 	[ 6 4 	LRRM
	14
4 0 • ]
Because 	grade 	coordinators 	direct 	counselors 	in 	pupil
19

attendance and disciplinary matters, and have the authority to
place written reprimands in counselors' personnel files, they are
found to be supervisory employees within the meaning of section
3540. 1 (m) .
Head Counselor
The head counselor is appointed by the high school principal
from a list of two counselors submitted by the counselling staff.
The appointment is for two years and is not rotational. 	The head
counselor receives approximately 6 percent more pay than other
counselors and 17 percent more than classroom teachers. 	Head
counselors are expected to work approximately 400 hours more than
other counselors. Also, head counselors receive release time to
perform their additional job functions. Generally, counselors are
assigned 300 students; however, the head counselor is assigned
only 75 students.
The principal of Berkeley High School testified that the
duties of the head counselor are very similar to those of
department chairpersons. 	He coordinates counseling services at
the high school, evaluates the counselling staff, has the
authority to adjust the number of students assigned to each
counselor, approves counselors' attendance at conferences, and has
the authority to adjust grievances at the first level.
The head counselor has authority to place written reprimands
in counselors' personnel files. As with department chairpersons,
this makes the position supervisory under section 3540.1 (m) .
The other duties of the head counselor are found not to be
supervisory in nature. Although the head counselor nominally
20
attendance
	and
	disciplinary
	matters,
	and 	have
	the
	authority 	to
place
	written
	reprimands
	in 	counselors'
	personnel
	files,
	they 	are
found
	to
	be
	supervisory
	employees
	within 	the
	meaning
	of
	section
3540.l(m).
Head
	Counselor
The
	head
	counselor
	is
	appointed
	by
	the
	high
	school
	principal
from
	a
	list
	of
	two
	counselors 	submitted
	by
	the
	counselling
	staff.
The
	appointment
	is
	for
	two
	years
	and
	is
	not
	rotational.
	The
	head
counselor
	receives
	approximately
	6
	percent
	more
	pay
	than
	other
counselors
	and
	17
	percent
	more
	than 	classroom
	teachers.
	Head
counselors 	are 	expected
	to
	work
	approximately
	400
	hours
	more
	than
other 	counselors.
	Also,
	head
	counselors 	receive
	release
	time
	to
perform
	their
	additional
	job
	functions. 	Generally, 	counselors 	are
assigned
	300
	students;
	however,
	the
	head
	counselor
	is
	assigned
only
	75
	students.
The
	principal
	of 	Berkeley
	High
	School
	testified
	that
	the
duties
	of 	the
	head
	counselor 	are 	very
	similar 	to
	those 	of
department
	chairpersons.
	He
	coordinates 	counseling
	services 	at
the
	high
	school, 	evaluates 	the 	counselling
	staff,
	has
	the
authority 	to 	adjust
	the
	number
	of
	students 	assigned
	to
	each
counselor,
	approves
	counselors' 	attendance 	at 	conferences,
	and
	has
the 	authority 	to 	adjust 	grievances 	at 	the
	first
	level.
The 	head
	counselor 	has
	authority 	to 	place 	written
	reprimands
in 	counselors' 	personnel
	files.
	As
	with 	department 	chairpersons,
this
	makes
	the 	position 	supervisory 	under
	section 	3540.l(m).
The
	other 	duties 	of 	the 	head 	counselor 	are 	found 	not 	to
	be
supervisory 	in 	nature. 	Although 	the 	head 	counselor 	nominally
20

assigns work to other counselors, this is done in a routine,
nondiscretionary fashion. On a rotational basis, counselors are
assigned to a group of students upon their entering the high
school and usually remain assigned to those students until they
are graduated.
The head counselor adjusts counselors' grievances at Step I
in the same manner as do department chairpersons for teachers in
their department (see pages 9-10 supra) . As with department
chairpersons, there is no evidence that the head counselor adjusts
grievances regarding employment relations matters.
The head counselor is responsible for evaluating the other
counselors. However, there is no conclusive evidence as to how
these evaluations are utilized.
The budget for conferences is only $200-$300 and there was no
evidence that the head counselor exercised any great degree of
discretion in approving counselors' conference attendance.
Based on the authority to effectively reprimand, head
counselors are found to be supervisory within the meaning of
section 3540.1 (m) .
21
assigns
	work
	to 	other 	counselors,
	this 	is
	done
	in
	a
	routine,
nondiscretionary 	fashion.
	On
	a
	rotational 	basis,
	counselors 	are
assigned
	to
	a
	group
	of 	students
	upon
	their
	entering 	the
	high
school
	and
	usually
	remain
	assigned
	to
	those
	students
	until
	they
are 	graduated.
The
	head
	counselor
	adjusts 	counselors'
	grievances
	at
	Step
	I
in 	the
	same
	manner
	as
	do
	department
	chairpersons 	for 	teachers 	in
their
	department 	(see 	pages
	9-10
	supra).
	As
	with 	department
chairpersons, 	there 	is
	no
	evidence
	that
	the
	head
	counselor
	adjusts
grievances 	regarding
	employment
	relations 	matters.
The
	head
	counselor
	is
	responsible 	for 	evaluating 	the 	other
counselors.
	However,
	there
	is
	no
	conclusive
	evidence 	as
	to
	how
these 	evaluations
	are
	utilized.
The
	budget
	for 	conferences
	is
	only
	$200-$300 	and
	there
	was
	no
evidence
	that
	the
	head
	counselor
	exercised
	any
	great
	degree 	of
discretion
	in
	approving
	counselors'
	conference 	attendance.
Based 	on
	the
	authority
	to
	effectively
	reprimand,
	head
counselors 	are	
found	
to	
be	
supervisory within	
the 	meaning	
of
section
	3540.l(m).
21

PROPOSED DECISION
Based on the foregoing findings of fact, conclusion of law
and the entire record in this matter, it is the proposed decision
that:
The positions of women's studies/title IX coordinator and
dean is neither management nor supervisory within the meaning of
Government Code section 3540.1 (g) or (m) , respectively, and are
therefore included in the certificated negotiating unit.
The positions of department chairperson, head teacher,
The parties have twenty (20) calendar days following the date
of service of this Proposed Decision in which to file exceptions
in accordance with section 32300 of the Board's rules and
regulations.
If no party files timely exceptions, this Proposed Decision
will become final on August 11, 1978
Decision will issue from the Board.
22
PROPOSED 	DECISION
Based 	on 	the 	foregoing 	findings 	of 	fact, 	conclusion 	of 	law
and 	the 	entire 	record 	in 	this 	matter, 	it 	is 	the 	proposed 	decision
that:
The 	positions 	of 	women's 	studies/title 	IX 	coordinator 	and
dean 	is 	neither 	management 	nor 	supervisory 	within 	the 	meaning 	of
Government 	Code 	section 	3540.l(g) 	or 	(m), 	respectively, 	and 	are
therefore 	included 	in 	the 	certificated 	negotiating 	unit.
The 	positions 	of 	department 	chairperson, 	head 	teacher,
teacher-director, grade coordinator, and head counselor are	teacher-director, 	grade 	coordinator, 	and 	head 	counselor 	are
supervisory within the meaning of Government Code section	supervisory 	within 	the 	meaning 	of 	Government 	Code 	section
3540.1 (m) and thus are excluded from the certificated negotiating	3540.l(m) 	and 	thus 	are 	excluded 	from 	the 	certificated 	negotiating
unit.	unit.
The 	parties 	have 	twenty 	(20) 	calendar 	days 	following 	the 	date
of 	service 	of 	this 	Proposed 	Decision 	in 	which 	to 	file 	exceptions
in 	accordance 	with 	section 	32300 	of 	the 	Board's 	rules 	and
regulations.
If 	no 	party 	files 	timely 	exceptions, 	this 	Proposed 	Decision
will 	become 	final 	on 	August 	11, 	1978 	and a Notice of	and 	a 	Notice 	of
Decision 	will 	issue 	from 	the 	Board.
Dated: July 19, 1978	Dated: 	July 	19, 	1978
MICHAEL /J/ TONSING
Hearing Officer
22