Mt. San Antonio Community College District (PERB 0334E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MOUNT 	SAN 	ANTONIO 	COLLEGE 	FACULTY
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
MOUNT 	SAN 	ANTONIO 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
_____________________ )
Case 	No. 	LA-CE-133
PERB 	Decision 	No. 	334
August 	18, 	1983
Appearances: 	Robert 	M. 	Dohrmann, 	Attorney 	(Schwartz,
Steinsapir, 	Dohrmann 	and 	Krepack) 	for 	Mount 	San 	Antonio 	College
Faculty Association, 	CTA/NEA; 	Patrick 	D. 	Sisneros, 	Attorney
(Wagner 	& Wagner) 	for 	Mount 	San 	Antonio 	Community 	College
District.
Before 	Gluck, 	Chairperson; 	Tovar, 	Jaeger, 	Morgenstern 	and 	Burt,
Members.
DECISION
JAEGER, 	Member: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	exceptions 	filed 	by 	the
Mount 	San 	Antonio 	College 	Faculty 	Association 	(Association) 	to
a 	hearing 	officer's 	proposed 	decision 	dismissing 	its 	charges
that 	the 	Mount 	San 	Antonio 	Community 	College 	District
(District) 	violated 	subsections 	3543 .5 (a), 	(b) 	and 	(c) 	of 	the
Educational 	Employment 	Relations 	Act 	(EERA 	or 	Act) ,1
1 The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	noted, 	all 	subsequent 	statutory 	references
are 	to 	the 	Government 	Code.
Section 	3543.5 	provides 	in 	relevant 	part:

In 	its 	charges, 	the 	Association 	alleged 	that 	the 	District
violated 	its 	duty 	to 	negotiate 	in 	good 	faith 	by 	unilaterally
implementing 	a 	staff 	reorganization 	plan. 	That 	plan 	created
the 	new 	position 	of 	"division 	chairperson" 	and 	transferred 	some
of 	the 	administrative 	duties 	previously 	performed 	by 	department
chairpersons 	to 	non-unit 	employees 	employed 	in 	the 	new
positions. 	As 	a 	result 	of 	the 	plan, 	department 	chairpersons,
some 	of 	whom 	were 	full-time 	administrators 	and 	some 	of 	whom
taught 	part-time 	and 	performed 	administrative 	duties 	part-time,
were 	assigned 	to 	teach 	full 	time. 	In 	addition, 	the 	District
modified 	the 	stipends 	that 	department 	chairpersons 	received.
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
(d) 	Dominate 	or 	interefere 	with 	the
formation 	or 	administration 	of 	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in 	any 	way 	encourage
employees 	to 	join 	any 	orga~ization 	in
preference 	to 	another.
2

The
	Association
	initially
	alleged
	that
	this
	conduct
constituted
	an
	unlawful
	unilateral
	change
	in
	violation
	of
subsections
	3543.S(c)
	and
	(b).
	In
	addition,
	it
	alleged
	that
the
	District's
	conduct
	independently
	violated
	subsections
3543.S(a)
	and
	(d).
	The
	hearing
	officer
	dismissed 	the
subsection
	3543.S(a)
	and 	(d)
	allegations 	prior
	to
	the
commencement
	of 	the
	hearing.
	The
	Association
	does
	not
	except
to
	the
	dismissal 	of
	those
	charges.
The
	hearing
	officer
	found
	that
	the
	District
	violated
subsection
	3543.S(c)
	when
	it
	refused 	to 	negotiate
	with
	the
Association
	concerning 	the
	change
	in 	the
	monthly
	stipend 	of
department
	chairpersons.2	
He
	dismissed
	all
	the
	other
allegations
	asserted
	by
	the 	Association 	to
	have
	constituted
unlawful
	unilateral
	changes.
The
	Association 	excepts 	to 	the
	proposed
	decision,
	arguing
that
	the
	unilateral
	change
	in
	the
	duties
	of 	department
2since
	no
	exception
	was
	taken
	to 	the 	hearing
	officer's
finding
	that
	the
	District
	unlawfully
	altered
	the 	stipends 	ofdepartment 	chairpersons 	in
	violation
	of 	subsection 	3543.S(c),
we
	adopt
	it
	as 	the 	finding 	of
	the 	Board.
	The
	hearing
	officer
declined 	to 	find
	that 	this
	conduct
	constituted
	a
	concurrent
violation
	of 	subsection 	3543.S(b),
	citing
	the 	Board's 	decision
in
	Magnolia 	School
	District
	(6/27/77)
	EERB
	Decision
	No.
	19.Subsequent 	to 	that 	decision, 	in
	San
	Francisco
	Community
	College
District
	(10/12/79)
	PERB
	Decision
	No.
	105, 	the
	Board
	held
	that
an
	unlawful
	unilateral
	change
	in
	violation 	of 	subsection3543.S(c) 	concurrently 	violates 	subsections 	3543.S(a) 	and
	(b).Accordingly,
	we
	find 	that
	the
	District's 	unilateralmodification 	of 	the 	stipends 	of 	department 	chairpersons
constitutes
	a
	concurrent 	violation 	of 	subsections 	3543.S(a)
	and
(
b)
•
3

chairpersons
	and
	their
	assignment
	to
	full-time
	teaching
	duties
constituted
	a
	violation
	of
	the 	duty
	to
	negotiate
	in
	good
faith.
	The
	Association
	further
	excepts 	to 	the 	hearing
officer's
	failure
	to 	order
	the
	District
	to 	negotiate
	the
	impact
of
	its
	reorganization
	plan
	on
	matters 	within
	the
	scope
	of
representation.
We
	affirm
	the 	hearing
	officer's
	decision
	in
	part
	and
reverse
	it
	in
	part 	consistent
	with
	the
	discussion
	below.
FACTS
During
	the
	fall
	and
	winter 	of 	the
	1976-77
	school
	year,
	the
parties
	commenced
	negotiations
	for
	an
	initial
	agreement.
	Each
of
	the
	parties
	submitted
	a
	comprehensive 	proposed
	faculty
master
	agreement. 	Included 	in 	the
	parties'
	proposals
	were
provisions
	which
	specifically
	concerned 	the
	selection
	of
department
	chairpersons,
	their 	salaries,
	monthly
	stipends,
	and
10b
	duties.
On
	February
	23, 	1977,
	the
	District
	submitted
	its 	initial
proposal 	to 	the 	Association.
	It
	also
	announced
	that, 	effective
fall
	1977,
	a
	college 	reorganization 	plan
	would 	be
	implemented.
Principally
	the 	plan
	called
	for 	the
	reorganization 	of 	the
college's 	instructional 	areas. 	Historically,
	the 	college
	had
been 	divided 	along 	department
	lines.
	Each
	of 	the
	27
departments
	was
	headed 	by
	a
	chairperson
	who 	was
	appointed 	for
	a
four-year 	term.3 	Chairpersons
	were 	recommended
	for
3The
	department 	chairpersons
	were 	included 	in 	the
4

appointment
	by
	their
	respective
	department
	faculty, 	subject
	to
the
	final
	approval 	of
	the
	District
	administration.
	Department
chairpersons
	were
	required
	to
	perform
	administrative
	duties
	in
lieu
	of
	full-time
	teaching
	responsibilities.4	
The
	proportion
of
	time
	chairpersons
	performed
	administrative 	duties
	~as
dependent
	upon
	the
	size
	of 	the 	department
	and
	the
administrative 	duties 	required.
	In
	the
	larger
	departments,
	the
chairpersons
	were
	relieved 	of
	all
	teaching
	duties.
certificated
	unit
	by
	mutual 	agreement
	of 	the
	parties
	without
benefit
	of
	PERB
	hearing 	to
	determine 	the
	appropriateness 	of
	the
unit.
	While
	the
	Board
	has 	had,
	since
	its
	inception,
	a
	policy
	of
approving
	bargaining
	units
	reached
	by
	mutual 	agreement, 	such
approval
	does
	not
	necessarily
	mean
	that
	the 	agreed-upon
	unit
would
	be
	found
	appropriate 	pursuant 	to
	a
	PERB
	hearing. 	(Section
3544.1.)
4The
	administrative 	duties
	of
	department
	chairpersonsincluded:
	"assisting"
	in 	interviewing
	and
	hiring
	of
certificated, 	classified,
	and
	student
	emloyees;
	supervising
	and
evaluatinq
	certificated, 	classified
	and
	student
	employees;
scheduling 	courses;
	making
	assignments 	to
	cover 	absences;
	budget
planning
	and
	implementation;
	ordering, 	storing,
	and
	maintaining
equipment
	and
	supplies; 	submitting
	time
	sheets 	of
	classified
	and
student
	employees;
	"leadership" 	within 	the 	department 	for
planning
	and
	developing 	curriculum; 	conducting
	monthly
department 	meetings
	and
	preparing 	minutes; 	planning, 	developing,
and 	implementing
	student 	recruitment 	procedures;
	assisting
students
	in
	class
	scheduling
	and
	student/teacher 	relations;
keeping 	the
	dean
	of 	faculty 	personnel
	informed
	of 	leaves 	of
absence
	and
	changes
	in 	teaching 	assignments; 	serving
	on
	advisory
committees;
	assisting
	with
	revision 	of 	the
	catalog; 	orientation
of
	new
	faculty
	members;
	conducting
	in-service 	training 	sessions;
evaluating
	and
	revising 	course
	offerings
	and
	outlines; 	helping
to 	select
	new
	textbooks; 	consulting 	with
	library,
	study
	skills,
and
	audio-visual 	personnel 	in 	developing 	learning 	center
resources; 	coordinating 	curricular 	offerings
	with 	other
departments; 	participating
	in 	annual
	projections 	for 	enrollment
and
	staffing;
	handling 	correspondence;
	and
	assisting
	with
development 	of 	building 	plans.
	(See 	Charging 	Party Exhibit
	12,
"Major 	Duties 	of 	Department 	Chairpersons.")
5

The 	chairpersons 	served 	a 	ten-month 	assignment 	and 	received
monthly 	stipends 	in 	addition 	to 	their 	regular 	faculty 	pay. 	The
amount 	of 	the 	stipends 	varied 	depending 	upon 	the 	nature 	of 	the
administrative 	duties 	they 	were 	required 	to 	perform.
The 	reorganization 	plan 	created 	a 	divisional 	structure,
with 	each 	of 	eight 	instructional 	divisions 	headed 	by 	a 	division
chairperson. 	The 	new 	division 	chairpersons 	would 	be 	on 	a 	level
comparable 	to 	that 	of 	associate 	dean 	and 	would 	therefore 	be
excluded 	from 	the 	certificated 	unit. 	They 	also 	had 	no 	teaching
responsibilities 	and 	worked 	a 	12-month 	year. 	Most 	of 	the
administrative 	duties 	previously 	performed 	by 	the 	department
chairpersons 	would 	be 	transferred 	to 	the 	division
chairpersons.5 	In 	addition, 	the 	division 	chairpersons 	would
exercise 	first-line 	management 	responsibility 	in 	collective
bargaining 	matters.
Subordinate 	to 	the 	division 	chairpersons 	would 	be 	four
"coordinators" 	who 	were 	assigned 	exclusively 	to 	non-teaching
administrative 	duties 	in 	certain 	specified 	departments 	of 	the
5charging 	Party Exhibit 	No. 	12, 	entitled, 	"Major 	Duties
of 	Department 	Chairpersons" 	lists 	26 	obligations 	of 	department
chairpersons. 	This 	list 	represents 	the 	duties 	delegated 	to 	the
department 	chairpersons 	prior 	to 	the 	reorganization. 	Charging
Party Exhibit 	No. 	13, 	entitled, 	"Reorganization 	of 	the
Instructional 	Areas," 	dated 	March 	28, 	1977, 	at 	p. 	15, 	lists 	the
responsibilities 	of 	division 	chairpersons. 	That 	list 	of 	some
34 	obligations 	of 	division 	chairpersons 	demonstrates 	a 	virtual
transposition 	of 	duties 	from 	the 	former 	department 	chairpersons
to 	the 	division 	chairpersons.
6

college.
	They
	would
	receive
	a
	$150
	monthly
	stipend
	in
	addition
to
	the
	salary 	established
	by
	the 	teacher
	salary
	schedule.
Subordinate
	to 	the
	coordinators
	would
	be
	28
	department
chairpersons
	who
	would
	receive
	a
	uniform
	monthly
	stipend 	of
$200
	and
	teach
	10
	months
	a
	year 	with
	a
	full
	courseload.
	They
were
	to
	continue 	to
	perform
	some
	of 	the
	administrative
	duties
previously
	assigned 	to
	them.
On
	March
	8
	and
	10,
	1977,
	the 	Association 	requested
	to
negotiate
	the
	reorganization 	plan.
	The
	District
	notified
incumbent
	department
	chairpersons
	that
	it
	intended
	to
	release
them 	from
	their
	chairmanships
	and
	assign
	them
	to 	teach
full-time 	effective
	February 	8,
	1978.
	The
	board,
	on 	March 	23,
1977
	rejected
	the
	Association's 	negotiating 	request,
characterizing
	the
	Association's
	demand
	as
	one
	to 	negotiate
	a
matter 	outside 	of 	the 	scope
	of
	representation.
On
	April
	7
	and
	11, 	the 	Association 	again
	demanded
	that
	the
District
	bargain
	over
	the
	proposed 	changes
	in 	the 	compensation
and
	iob
	duties 	of
	department
	chairpersons.
On
	April 	14, 	1977,
	the 	chairperson 	of 	the
	District
bargaining
	team
	again
	rejected 	negotiations
	on
	this 	subject,
informing 	the 	Association
	that
	assignments
	were
	not 	within 	the
scope 	of 	representation.
On May
	18, 	the
	District
	board
	of
	trustees
	approved
	the
proposed 	reorganization
	and
	a
	plan 	for
	its
	implementation
	was
approved
	on 	June 	22, 	1977.
7

DISCUSSION
The
	Board
	has
	long
	held
	that
	an
	employer
	may
	violate
	its
autv
	to
	negotiate
	in
	good
	faith
	by 	making
	unilateral
	changes
	of
matters
	within
	the
	scope
	of
	representation.
	Pajaro 	Valley
Unified
	School
	District
	(5/22/78)
	PERB
	Decision
	No.
	51;
	Grant
Joint
	Union 	High
	School
	District
	(2/26/82)
	PERB
	Decision
	No.
196; 	accord
	NLRB
	v.
	Katz
	(1962) 	369
	U.S.
	736 	[50
	LRRM
	2177].
As
	noted 	above,
	the
	District's
	reorganization 	plan
	called
for
	the
	creation 	of
	the
	new
	non-bargaining-unit
	position
	of
"division" 	chairperson
	and
	the
	transfer
	of
	work
	previously
performed
	by
	bargaining
	unit
	members
	to
	those
	employees.
	In
addition,
	it
	eliminated
	the
	worktime
	alloted
	to 	''department"
chairpersons
	to
	perform
	administrative 	duties
	and
	assigned
	them
to 	full-time
	teaching
	duties.
	These
	actions,
	though
	part
	of
the
	same
	reorganization 	plan,
	are 	analyzed
	separately
	below.
The
	Creation 	of 	Division 	Chairpersons
In
	Alum 	Rock 	Union
	Elementary 	School
	District
	(6/27/83)
PERB
	Decision
	No.
	322,
	the 	Board, 	applying 	the
	test
	for
negotiability 	set 	forth 	in
	Anaheim 	Union 	High
	School
	District
(10/28/81)
	PERB
	Decision
	No.
	177,6	
found
	that
	"where
management
	seeks 	to 	create
	a 	new
	classification
	to 	perform
	a
function
	not
	previously
	performed
	•.•
	by
	employees
	•..
	it
6cited,
	with 	approval,
	by
	the 	California
	Supreme
	Court 	in
San 	Mateo
	City 	School
	District;
	Healdsburg 	Union 	High
	School
District 	et 	al 	v.
	PERB
	(1983) 	33
	Cal.3d 	850.
8

need
	not
	negotiate
	its
	decision."
	However,
	as 	the
	Board
indicated
	in
	Alum 	Rock,
	supra,
	at
	p.
	11,
	"those 	aspects
	of
	the
creation
	.
	of
	a
	classification
	which
	merely
	transfer
existing
	functions
	and
	duties
	from 	one
	classification
	to
another
	involve
	no
	overriding
	managerial
	prerogative,"
	and
	are,
therefore,
	negotiable.
	Thus,
	where
	the
	assignment
	of
	duties
	to
employees
	would
	transfer
	work
	previously
	performed
	by
bargaining
	unit
	members
	out
	of
	the 	bargaining
	unit,
	the
employer
	is
	obligated
	to
	negotiate. 	Rialto
	Unified
	School
District
	(4/30/82)
	PERB
	Decision
	No.
	209;
	Solano
	County
Community
	Colleqe
	District
	(6/30/82)
	PERB
	Decision
	No.
	219.7
7rn
	his
	dissent,
	Member
	Morgenstern
	argues
	that
	management
should
	be
	permitted 	to
	unilaterally
	remove
	what
	he
	terms
"supervisory
	work" 	from
	the 	bargaining
	unit.
	We
	find
	no
statutory
	or 	case
	authority
	whatsoever
	to 	support
	this
	theory.
The
	performance
	of 	"supervisory 	duties"
	is
	only
	relevant 	to
	a
determination 	of
	whether
	an 	employee
	should
	properly
	be
	excluded
from
	the 	bargaining
	unit
	as
	a
	"supervisory
	employee"
	within 	the
meaning
	of 	subsection 	3540.l(m).
	In 	the 	absence 	of
	a
determination
	by
	the
	Board
	that
	a
	particular
	employee
	issupervisory, 	that
	employee 	and
	that
	employee's
	duties
	belong
	to
the 	bargaining
	unit.
	This
	is
	true 	regardless 	of
	whether
	some
part
	of 	those
	duties
	may
	involve 	supervisory 	functions.
Under
	the 	theory
	set
	forth 	in 	the
	dissent,
	management
	could
effectively
	circumvent 	the
	statutory 	unit 	modification
procedure, 	while
	shifting
	the
	burden
	to 	the 	union
	to 	prove
	that
management 	had
	acted 	improperly.
	Thus,
	if
	management 	were
	to
unilaterally
	remove
	so-called 	"supervisory duties"
	from
	the
bargaining 	unit,
	the 	union's 	only 	recourse
	would 	be
	to
	file
	an
unfair 	practice 	charge, 	alleging 	that
management
	unlawfully
transferred 	bargaining 	unit
	work
	out 	of 	the
	unit.
	The
	burden 	of
proof
	would
	fall
	on
	the 	union
	to 	establish 	that 	the
	particularduties 	transferred
	were
	"non-supervisory." 	In
	contrast,
	under
the 	unit 	modification 	procedure,
	when 	management
	seeks 	toexclude
	an 	employee 	from
	the 	bargaining 	unit 	as 	supervisory, 	the
9

In
	this
	case,
	the 	record
	indicates
	that
	the
	reorganization
plan
	assigned
	specific
	administrative 	duties
	previously
performed
	by
	department
	chairpersons 	to
	division 	chairpersons.
Virtually
	the 	only 	duty 	assigned
	to
	division
	chairpersons
	that
was
	not
	previously
	performed
	by
	department
	chairpersons
involved
	first-line
	management
	responsibility
	in
	collective
bargaining
	matters.
	Thus,
	the
	District
	was
	free
	to
	create
	the
new
	position
	of
	division
	chairperson 	to
	perform 	the
	collective
bargaining 	function
	not
	previously
	performed.
	However,
	aside
from
	this
	one
	duty, 	the
	District's
	decision 	to
	create
	a 	new
position
	outside 	of
	the
	certificated
	bargaining
	unit
	had
	the
effect
	of
	transferring
	work
	previously
	performed
	by
	bargaining
unit
	members
	to
	employees
	outside 	of
	the
	unit.
	Prior 	to
	the
burden
	of 	proof
	rests
	on
	the
	employer
	to
	establish 	that
	an
employee
	possessed
	sufficient 	indicia
	of 	supervisory
	status.
Moreover,
	contrary 	to
	Member
	Morgenstern's
	assertions,
	the
record
	is
	not
	at
	all
	"clear" 	that
	the
	duties 	transferred
	from
the
	department
	chairpersons 	to 	the
	new
	management
	positions
	were
in
	fact 	supervisory.
	His
	conclusions 	are
	based
	largely
	on
	a
list
	of
	duties
	contained 	in
	a
	job
	description,
	without
	any
evidence 	of
	what
	duties
	those
	employees
	actually
	perform.
	Thus,
even
	were
	we
	persuaded 	to 	adopt
	Member
	Morgenstern's
	legal
theory,
	we
	could 	not
	join
	him
	in 	reaching 	the
	factual
conclusion,
	based
	on
	this
	record,
	that
	any
	of 	the
	duties
transferred
	from
	the 	department 	chairpersons
	were
	supervisory
	as
defined
	by
	the 	Act.
Finally,
	we
	note
	that,
	in
	this 	case,
	management 	and
	the
Association 	mutually 	agreed
	that 	these
	employees
	and
	theirduties
	should
	be
	in 	the 	bargaining 	unit
	(see 	footnote 	3,
supra).
	Under
	the 	theory 	offered
	by
	the
	dissent,
	management
	may
piecemeal,
	and
	without 	bargaining,
	undo 	what
	it
	has 	agreed 	to
respect.
	We
	can 	hardly 	conceive 	of
	a
	system
	less
	conducive 	to
cooperative 	labor 	relations.
10 	-

District's 	assignment 	of 	those 	duties 	to 	the 	newly 	created
classification, 	it 	was 	obligated 	to 	negotiate 	with 	the
Association, 	upon 	demand, 	that 	transfer 	of 	unit 	work. 	The
District's 	refusal 	to 	negotiate 	constituted 	a 	violation 	of 	its
duty 	to 	negotiate 	in 	good 	faith.
The 	Change 	of 	Hours 	of 	Department 	Chairpersons
The 	hearing 	officer 	found 	that 	there 	was 	no 	evidence 	in 	the
record 	to 	support 	a 	finding 	that 	the 	District's 	planned
elimination 	of 	department 	chairpersons' 	non-teaching
administrative 	duty 	time 	and 	their 	assignment 	to 	full-time
teaching 	duties 	affected 	their 	hours 	of 	employment. 	We 	find,
to 	the 	contrary, 	that 	the 	evidence 	establishes 	that 	the 	change
in 	duties 	of 	department 	chairpersons 	caused 	an 	increase 	in
their 	hours 	of 	employment.
The 	District's 	reorganization 	plan, 	by 	its 	own 	terms,
expressly 	requires 	that 	department 	chairpersons 	perform 	many 	of
their 	preexisting 	administrative 	duties, 	despite 	the 	fact 	that
they 	are 	assigned 	to 	teach 	on 	a 	full-time 	basis. 	James
Simpson, 	the 	District's 	vice 	president 	of 	business 	services,
acknowledged 	in 	his 	testimony 	that 	the 	hours 	of 	department
chairpersons 	would 	be 	affected 	by 	the 	reorganization 	plan.
Moreover, 	in 	its 	communications 	with 	the 	District, 	the
Association 	specifically 	indicated 	that 	the 	reorganization 	plan
would 	increase 	the 	hours 	of 	employment 	of 	department
chairpersons, 	while 	simultaneously 	eliminating 	non-teaching
11

time 	formerly 	allotted 	to 	them 	to 	perform 	those 	duties. 	We
therefore 	conclude 	that 	the 	District's 	formal 	adoption 	of 	the
reorganization 	plan,8 	insofar 	as 	it 	effectively 	increased 	the
hours 	of 	employment 	of 	department 	chairpersons, 	constituted 	an
unlawful 	unilateral 	change 	of 	matters 	within 	the 	scope 	of
representation.
The 	record 	thus 	establishes 	that 	the 	reorganization 	plan,
as 	adopted 	by 	the 	District, 	affected 	the 	wages 	and 	hours 	of
cepartment 	chairpersons. 	In 	addition, 	it 	transferred 	unit 	work
to 	non-unit 	members. 	The 	District's 	unilateral 	adoption 	of
those 	portions 	of 	the 	plan 	found 	to 	affect 	matters 	within 	the
scope 	of 	representation 	therefore 	constitutes 	a 	breach 	of 	its
duty 	to 	negotiate 	in 	good 	faith 	in 	violation 	of 	subsection
3543.S(c) 	and, 	concurrently, 	subsections 	3543.S(a) 	and 	(b) 	of
the 	Act. 	San 	Francisco 	Community 	College 	District, 	supra.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law 	and 	the 	entire
record 	in 	this 	case, 	it 	is 	hereby 	ORDERED 	that 	the 	Mount
San 	Antonio 	Community 	College 	District 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Refusing 	and 	failing 	to 	negotiate 	in 	good 	faith
Bwe 	note 	that 	while 	the 	charges,in 	this 	case 	were 	filed
prior 	to 	the 	effective 	date 	of 	the 	reorganization 	plan, 	the
District 	had 	officially 	adopted 	the 	plan 	without 	negotiating,
and, 	as 	such, 	had 	acted 	in 	a 	manner 	inconsistent 	with 	its 	duty
to 	negotiate 	in 	good 	faith. 	See 	Anaheim 	Union 	High 	School
District 	(3/26/82) 	PERB 	Decision 	No. 	201; 	Newark 	Unified 	School
District 	(6/30/82) 	PERB 	Decision 	No. 	225.
12

with 	the 	Mount 	San 	Antonio 	College 	Faculty 	Association,
CTA/NEA, 	on 	all 	matters 	within 	the 	scope 	of 	representation
and, 	specifically, 	by 	unilaterally 	modifying 	the 	stipends 	of
department 	chairpersons, 	changing 	their 	hours 	of 	employment,
and 	transferring 	unit 	work 	to 	non-unit 	members.
2. 	Interfering 	with 	the 	rights 	of 	employees 	to 	be
represented 	by 	unilaterally 	modifying 	the 	stipends 	of
department 	chairpersons, 	changing 	their 	hours 	of 	employment,
and 	transferring 	unit 	work 	to 	non-unit 	members.
3. 	Denying 	the 	Association 	its 	rights 	to 	represent
unit 	members 	by 	failing 	and 	refusing 	to 	meet 	and 	negotiate 	on
all 	matters 	within 	the 	scope 	of 	representation 	and,
specifically, 	by 	unilaterally 	modifying 	the 	stipends 	of
department 	chairpersons, 	changing 	their 	hours 	of 	employment,
and 	transferring 	unit 	work 	to 	non-unit 	members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
1. 	Upon 	request 	of 	the 	Association, 	meet 	and
negotiate 	with 	the 	Association 	concerning 	the 	transferring 	of
unit 	work, 	the 	modification 	of 	department 	chairperson 	stipends,
and 	the 	change 	of 	hours 	of 	department 	chairpersons.
2. 	Pay 	to 	the 	affected 	employees 	the 	difference 	in
wages 	between 	that 	which 	they 	earne0 	and 	that 	which 	they 	should
have 	earned 	in 	the 	absence 	of 	the 	employer's 	unilateral 	action,
minus 	any 	mitigation, 	from 	May 	18, 	1977 	until 	the 	occurrence 	of
13

the
	earliest
	of 	the 	following
	conditions:
	(a)
	the
	date
	the
District
	negotiates
	an
	agreement
	with
	the
	Association
concerning 	the
	issues
	raised
	by
	this
	Decision;
	(b) 	a
	bona
	fide
impasse
	in
	bargaining 	occurs; 	or
	(c)
	failure
	of
	the
	Association
to 	request 	bargaining 	within
	5
	days
	of
	this
	Decision.
3.
	Within
	10
	days
	after
	issuance 	of
	this
	Decision,
prepare
	and
	post 	copies 	of
	the
	Notice
	to
	Employees,
	attached
hereto, 	at
	all
	school
	sites
	and
	all
	other
	work
	locations
	where
notices
	to
	certificated
	employees
	are 	customarily 	placed.
	Such
posting
	shall
	be
	maintained 	for
	a
	period 	of
	30
	consecutive
workdays. 	Reasonable
	steps
	shall
	be
	taken
	to
	ensure
	that
	the
Notice
	is
	not
	reduced
	in
	size, 	altered,
	defaced 	or 	covered
	by
any
	other
	material.
4.
	Notify 	the
	Los
	Angeles
	regional
	director 	of
	the
Public
	Employment
	Relations
	Board,
	in
	writing,
	within
	45
	days
of
	issuance 	of
	this
	Decision, 	of 	the
	steps
	the
	District
	has
taken 	to
	comply
	herewith.
This
	Order
	shall
	become
	effective
	immediately
	upon
	service
of
	a
	true
	copy
	thereof
	on
	the
	Mount 	San
	Antonio
	Community
College
	District.
Chairperson
	Gluck 	and 	Members 	Tovar 	and
	Burt 	joined 	in
	this
Decision.
See 	Member
	Morgenstern's 	concurrence
	and
	dissent
	and
Chairperson 	Gluck's 	concurrence.
14

Member
	Morgenstern,
	concurring
	and
	dissenting:
	I
	concur
with 	the
	majority
	that
	the
	District's
	unilateral
	adoption
	of
	the
reorganization
	plan 	unlawfully
	changed
	the
	wages 	and
	hours
	of
department
	chairpersons.
	I
	further
	agree
	that,
	under
	the
authority
	of
	Rialto,
	supra,
	and
	Solano,
	supra, 	the
	District
violated
	the
	Act
	to 	the
	extent 	that
	it
	transferred
	bargai~ing
unit
	work
	to
	employees
	outside 	of 	the
	unit.
	However, 	I
	dissent
from
	my
	colleagues' 	characterization
	of
	the
	duties
	at
	issue
	here
as
	categorically
	bargaining
	unit
	work.
The
	record
	indicates 	that
	many
	of
	the
	duties 	transferred
from
	department
	chairs
	to
	division 	chairs
	were
	supervisory 	in
nature, 	that
	the
	decision 	to
	transfer 	duties
	was 	made
	not 	for
any
	discriminatory
	purpose 	but
	solely
	to
	improve
	supervision
	by
consolidating 	supervisory 	functions 	in 	supervisory 	personnel,
and
	that
	the
	transfer
	of
	duties
	did 	not 	eliminate 	or 	reduce 	the
number
	of
	department
	chairperson
	positions
	in 	the
	unit.
	In
these 	circumstances,
	I
	find
	that
	the
	District's
	assignment
	of
supervisory 	duties 	to 	supervisors
	(as 	opposed
	to 	the
	change
	in
wages
	and
	hours
	of
	department
	chairs)
	was 	a
	matter 	of 	managerial
prerogative,
	about
	which
	it
	had 	no
	duty 	to 	bargain.
Department
	chairs 	are
	members
	of 	the
	certificated 	staff
(faculty) 	unit
	whose
	primary 	function
	is
	teaching.
	According 	to
'
the
	District's
	rules
	and
	regulations,
	department
	chairs:
15

•.•
	are
	immediately
	responsible
	for 	the
maintenance
	and
	improvement
	of
	teaching
effectiveness.
	They
	are
	a
	very
	important
link
	in 	the 	chain 	of
	communication 	between
the 	Administration
	and
	the
	Faculty
	.•..
The
	Association's
	view
	of 	the
	role
	of
	department
	chairs
	is
reflected
	in
	its
	contract
	proposal
	on
	the
	subject,
	which
	states:
The
	Department
	Chairperson
	shall
	act
	as
	a
spokesperson 	for 	the
	faculty
	in 	thedepartment
	he
	represents.
	It
	is
	the
	duty
of
	the
	chairperson 	to
	.••
	forward
	all
department
	decisions
	and
	recommendations
	to
the
	appropriate
	College
	officer
	and
	to
speak
	for 	the
	faculty
	of
	the 	department 	in
dealing
	with
	the 	College.
That
	department
	chairs
	owe
	their
	primary
	allegiance 	to
	the
bargaining
	unit 	is 	further 	reflected
	in 	the
	fact 	that
	they 	are
effectively
	elected
	by
	the
	members
	of
	their
	department.
Nonetheless, 	department
	chairs
	had
	been
	assigned
	a
	variety
of
	duties
	which
	are 	supervisory 	in 	nature,
	and 	which
	are
acknowledged
	as
	such
	by
	both
	parties.l	
These
	duties 	are
among
	those
	listed
	in 	footnote
	4, 	page
	5, 	of 	the
	majority
decision.
lcharging 	Party Exhibit
	No. 	33
	is
	a
	"Notice 	of 	PossibleRelease
	from
	Administrative 	or 	Supervisory 	Position" 	sent 	to
all
	department
	chairs 	to
	inform
	them
	of 	the
	District's"intention
	to 	reassign
	you
	to 	classroom 	or 	other 	appropriatenon-supervisory
	certificated 	duties."
Charging
	Party Exhibit
	No. 	39
	is
	the 	Association'sresponse 	to 	the 	proposed
	reorganization 	in
	which
	it
acknowledges: 
•
	the 	possible 	alternative
	of
	a 	change
in 	the 	composition 	of 	the 	bargaining 	unit
in 	that 	the 	department 	chairpersons 	couldform 	a
	supervisory 	unit
	..•.
16

While
	the
	performance
	of
	supervisory
	duties 	incidental 	to
their
	primary
	teaching 	function
	does
	not
	necessarily
	render
	the
department
	chairs
	«supervisors,«2	
neither
	does
	the
performance
	of
	such
	duties
	by
	unit
	members
	convert
	supervisory
duties
	to 	bargaining
	unit
	work.
The
	majority
	would
	require
	that
	management
	negotiate
	with
the 	Association 	before
	removing
	this
	supervisory
	work
	from
	the
unit,
	while
	I 	would
	require 	negotiations
	only
	on
	the
	change
	in
wages, 	hours
	and
	working
	conditions 	of
	unit
	employees.
	I
reject
	the 	notion
	that
	nonsupervisors
	have 	any
	"right"
	to
perform
	work
	where, 	as
	here,
	it
	is
	clear 	that
	the
	work
	is
supervisory 	in 	nature.3
2subsection
	3540.l(m)
	provides:
(m)
	"Supervisory
	employee" 	means 	any
employee,
	regardless
	of 	job
	description,
having
	authority
	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 	exerciseof
	such
	authority 	is
	not 	of
	a
	merely
routine
	or
	clerical
	nature,
	but 	requiresthe 	use
	of 	independent 	judgment
..
And
	see
	New
	Haven
	Unified 	School
	District
	(3/22/77)
	EERB
Decision
	No.
	14, 	finding
	that
	high 	school 	department 	heads
	arenot 	supervisors 	within 	the
	meaning
	of'subsection 	3540.l(m).
(Prior 	to 	January
	1,
	1978,
	PERB
	was 	known 	as 	the 	Educational
Employment
	Relations 	Board.)
3The
	majority
	does 	not 	find
	it
	clear 	that 	the
	work
	issupervisory.
	It
	is 	true 	that 	the 	parties 	fail
	to 	deal
17

The 	Act 	mandates 	a 	clear 	distinction 	between 	supervisory
and 	nonsupervisory 	employees, 	requiring 	that 	they 	form 	separate
bargaining 	units, 	represented 	by 	different 	employee
organizations.4 	While 	this 	provision 	differs 	from 	the
specifically with 	the 	question 	of 	whether 	or 	not 	the
supervisory 	tasks 	performed 	by 	department 	chairs 	require 	the
use 	of 	independent 	judgment. 	However, 	the 	record 	shows 	that
the 	District 	asserted 	and 	the 	Association 	agreed 	that
department 	chairs 	performed 	numerous 	very 	specific 	supervisory
tasks. 	Moreover, 	in 	response 	to 	the 	District's 	desire 	to 	have
these 	tasks 	(including 	the 	evaluation 	and 	adjudication 	of
grievances) 	performed 	by 	non-unit 	employees, 	the 	Association
contended 	that 	department 	chairs 	did 	these 	supervisory 	tasks 	so
well 	that 	no 	change 	was 	called 	for. 	As 	noted, 	supra, 	the
Association 	also 	suggested 	the 	creation 	of 	a 	supervisors 	unit.
Thus, 	the 	majority 	assertions 	notwithstanding, 	the 	evidence
that 	the 	tasks 	being 	removed 	from 	the 	unit 	are 	supervisory 	is
uncontroverted 	in 	the 	record.
4section 	3545 	provides, 	in 	pertinent 	part, 	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.
(2) 	A negotiating 	unit 	of 	supervisory
employees 	shall 	not 	be 	appropriate
unless 	it 	includes 	all 	supervisory
employees 	employed 	by 	the 	district 	and
shall 	not 	be 	represented 	by 	the 	same
employee 	organization 	as 	employees 	whom
the 	supervisory 	employees 	supervise.
'
18

National
	Labor
	Relations
	Act,
	the
	Board
	has
	previously
	held
that
	the
	intent
	of 	the
	two
	Acts
	is
	the
	same:
••.
	to
	protect
	management's
	interest
	in
the 	undiluted
	loyalty
	of 	those
	employees
	to
whom
	it
	delegates 	supervisory
responsibilities
	and
	to
	guard
	against
potential 	conflicts
	of
	interest
	between
supervisors
	and
	the
	employees
	they
supervise.
	Sacramento
	City
	Unified
	School
District
	(3/25/80}
	PERB
	Decision
	No.
	122,
at
	p.
	13.
Consistent
	with
	this 	legislative 	intent,
	the
	federal 	labor
board
	has
	recognized
	that
	an
	employer
	"is 	entitled
	to
	make
	its
own
	decisions
	as
	to
	how
	best
	to 	supervise
	its
	operations"
(Hydro
	Conduit
	Corporation
	(1981} 	254
	NLRB
	433, 	441},
	including
the 	unfettered
	right
	to 	determine 	the
	size
	and
	composition
	of
its
	supervisory
	staff
	and
	the 	choice 	of 	supervisory 	personnel.
KONO-TV-Mission
	Telecasting 	Corporation
	(1967} 	163
	NLRB
	1005,
1008.
	In
	accord, 	see
	Camden
	Fire
	Department
	(1982} 	8 	NJPER
13137;
	Board
	of 	Education, 	City 	of
	New
	York 	(1972} 	5
	PERB
	3054.
As
	the 	majority 	points 	out,
	it
	is
	well
	established
	that
	an
employer 	exceeds
	its
	unilateral 	authority
	if
	it
	promotes
employees
	out 	of
	the 	bargaining
	unit 	into 	supervisory 	positions
with
	a
	resulting 	loss 	of 	bargaining
	unit 	jobs.
	Lutheran
	Home
of 	Kendallsville,
	Indiana
	(1982} 	264
	NLRB
	No. 	74~
	Tesoro
employees 	employed 	by
	the
	district
	and
shall
	not
	be
	represented 	by 	the
	same
employee
	organization 	as 	employees
	whom
the 	supervisory
	employees
	supervise.
19

Petroleum
	Corp. 	(1971) 	192
	NLRB
	354, 	359; 	Kendall 	College
(1977)
	228
	NLRB
	1083, 	1088; 	Oil
	Workers
	(OCAW)
	v.
	NLRB
	(1976)
92
	LRRM
	3059, 	3064;
	Bay
	State
	Gas
	(1980) 	253
	NLRB
	538;
	Pilot
Freight 	Carriers
	(1975)
	221
	NLRB
	1026;
	Central
	Cartage 	(1978)
236
	NLRB
	1232, 	1258; 	Northport
	Union
	Free 	School
	District
	(N.Y.
1976)
	9
	PERB
	3003.
	However,
	the
	reliance
	by
	the
	majority
	and
majority
	concurrence
	on
	this
	point
	is
	misplaced, 	as 	here
	the
District
	did 	not
	remove 	any
	employees
	from
	the
	unit;
	this
possible 	alternative
	was
	suggested 	only
	by
	the
	Association.
(See
	fn. 	1,
	supra,
	at
	p.
	16.) 	Rather, 	the 	course
	followed
	by
the
	District
	did 	not
	disturb
	the
	unit's
	composition.
	All
	27
department
	chairs
	remained
	in 	the
	unit
	and
	retained
	their
teaching,
	liaison
	and
	advocacy
	functions.
Further,
	I
	take 	issue
	with 	the
	majority's
	view
	of 	the
relevance
	and
	negotiability
	of 	supervisory
	duties.
	The
majority
	asserts
	(fn.
	6,
	p.
	9)
	that:
The
	performance
	of 	"supervisory 	duties 	is
only
	relevant
	to
	a
	determination 	of
	whetheran 	employee
	should
	properly
	be
	excluded
from
	the 	bargaining
	unit
	as
	a
	"supervisory
employee"
	within 	the
	meaning
	of 	subsection
3540.l(m). 	In 	the 	absence
	of
	a
determination
	by
	the
	Board
	that
	a
particular
	employee
	is
	supervisory, 	that
employee 	and
	that
	employee's
	duties
	belong
to 	the 	bargaining
	unit.
	This
	is 	true
regardless 	of 	whether
	some
	part
	of 	those
duties
	may
	involve 	supervi~ory 	functions.
(Emphasis
	in
	original.)
This 	severely 	restricted 	definition
	of 	supervisory 	duties 	will,
if 	it
	prevails, 	seriously 	limit
	management's
	ability
	to
supervise 	its 	operations.
20

In 	this 	case, 	the 	Association 	had 	sought 	a 	faculty 	unit
which 	included 	department 	chairs, 	and 	the 	District 	had 	agreed.
Later, 	when 	the 	District 	found 	that 	its 	reliance 	on 	unit
members 	for 	the 	completion 	of 	key 	supervisorial 	tasks
interfered 	with 	its 	ability 	to 	manage, 	a 	new 	supervisory 	class
was 	created 	and 	supervisory 	duties 	were 	assigned 	to 	the
employees 	in 	the 	new 	class.5
Management 	has 	the 	right 	to 	have 	supervision 	performed 	by
supervisors 	with 	"undiluted 	loyalty" 	and 	no 	"potential 	conflict
of 	interest." 	The 	majority 	suggest 	that 	the 	District 	could
SThe 	District's 	Reorganization 	Plan 	lists 	the 	following
among 	the 	advantages 	of 	the 	divisional 	structure:
1. 	A logical 	chain 	of 	command 	for 	the
processing 	of 	grievances 	would 	be
provided ....
2. 	Administrators 	(managers) 	would 	be
provided 	out 	of 	the 	instructional 	areas
for 	purposes 	of 	evaluation. 	At 	present,
all 	evaluators 	are 	in 	the 	faculty
bargaining 	unit 	and 	there 	is 	no 	effective
evaluation 	by 	management.
3. 	Division 	chairpersons 	would 	provide
the 	Board 	with 	more 	management 	manpower
in 	case 	of 	strikes, 	slowdowns, 	sick-ins,
or 	other 	concerted 	activities 	by 	employee
organizations.
4. 	Eight 	division 	chairpersons 	could 	be
better 	and 	more 	easily 	trained 	in
contract 	management 	to 	avoia 	formal
grievances 	and 	unfair 	labor 	practice
charges 	•...
21

achieve
	this
	goal
	through
	a
	unit
	modification.
	I
	find 	nothing
in 	the
	law
	that
	requires
	the
	District
	to
	pursue
	such
	a
potentially
	disruptive
	course.
	A
unit
	modification
	may
	be
looked
	upon
	by 	the
	District
	in
	this 	situation
	as
	harmful
	for
any
	number
	of 	reasons.
	It
	may
	find
	it
	disruptive
	of 	the
excellent 	collegial 	relationship
	between
	department
	chairs
	and
other 	faculty 	that
	seems
	to
	exist
	in
	this 	District,
	it
	may 	be
understandably
'
reluctant
	to
	argue
	that
	these
	elected
	department
chairs
	are
	or 	should
	be
	its 	first
	line
	of
	supervision,
	or
	the
District
	may
	simply
	believe
	that
	the
	establishment 	of 	higher
level
	first
	line
	supervisors 	(division 	chairs) 	represents
better
	management.
	The
	District
	should 	not
	be
	required
	to
	seek
5.
	Division 	chairpersons
	would 	be
	an
invaluable 	resource 	to 	the
	Board
	in
	all
present
	or
	future 	negotiations
	•...
6.
	Division 	chairpersons
	would
	greatly
improve
	our
	control 	of
	work
	hours,submission
	of 	required 	reports
	needed
	for
management, 	and
	control 	of 	leaves
	and
absences.
7. 	Division 	chairpersons
	would
	provide
District
	with
	more
	consistency
	and
uniformity 	of 	administration 	of
	Board 	Rulesand
	Regulations
	and
	administrative
procedures.
. . 	. 	. 	. 	. 	. 	. 	. . 	. . . 	. 	. 	. 	. 	. 	.
10. 	Division 	chairpersons
	would 	be
management
	personnel, 	not 	selected
	by
	their
constituents,
	not 	serving 	as 	the 	advocate
of
	and
	at 	the
	whim
	of 	the 	faculty,
	and
therefore
	would 	be 	much 	more
	responsive 	to
the 	Board 	and
	to
	Management
	policies
	and
procedures.
'
22

a 	unit 	modification 	that 	it 	finds 	contrary 	to 	its 	interest; 	yet
the 	majority 	decision 	leaves 	only 	that 	course 	open 	to 	it 	in 	its
efforts 	to 	achieve 	a 	legitimate 	managerial 	goal.
The 	majority 	concurrence 	asserts 	that" 	. 	nothing 	in
the 	Act 	... 	empowers 	an 	employer 	to 	partition 	an 	employee 	(or
classification) 	into 	excludable 	and 	includable 	halves." 	In
fact, 	partitioned 	classifications 	do 	exist. 	However, 	the
Chairperson's 	main 	point 	here 	is 	quite 	correct; 	halvin~ 	an
employee 	would 	seem 	to 	be 	at 	best 	impractical. 	It 	is
nevertheless 	true 	(perhaps 	especially 	true 	in 	the 	public
sector) 	that 	employees 	will 	often 	perform 	supervisory 	duties
and 	also 	spend 	a 	good 	deal 	of 	time 	doing 	the 	same 	work 	as
bargaining 	unit 	employees. 	Because 	you 	cannot 	divide 	an
employee 	in 	two, 	I 	believe 	a 	proper 	interpretation 	of
section 	3545 	would 	allow 	management 	to 	relieve 	employees 	in 	the
bargaining 	unit 	of 	their 	supervisory 	responsibilities.
I 	agree 	with 	the 	majority 	that 	the 	change 	in 	hours 	and
wages 	of 	department 	chairs 	is 	negotiable. 	The 	issue 	between 	us
is 	that 	the 	majority 	asserts 	that 	no 	work 	can 	be 	removed 	from
the 	unit 	unilaterally, 	while 	I 	find 	that 	this 	principle 	should
not 	apply 	with 	respect 	to 	duties 	that 	are 	truly 	supervisory 	in
nature. 	The 	majority 	incorrectly 	alleges 	that 	this 	approach
would 	put 	the 	burden 	on 	a 	union 	to 	prove 	that 	the 	duties
changed 	were 	not 	supervisory. 	The 	more 	logical 	and 	likely
approach 	is 	to 	view 	any 	unilateral 	change 	in 	duties 	as 	unfair
unless, 	as 	here, 	management's 	defense 	proves 	the 	changed 	duties
23

to 	be 	supervisory. 	Management 	can 	hardly 	exercise 	the 	right 	to
"make 	its 	own 	decisions 	as 	to 	how 	to 	best 	supervise 	its
operations" 	(Hydro 	Conduit, 	supra) 	if 	it 	must 	bargain 	over 	the
right 	to 	create 	a 	supervisory 	class 	or 	to 	assign 	supervisory
duties 	to 	supervisors. 	Unlike 	the 	unilateral 	change 	in 	wages
and 	hours, 	I 	find 	that 	the 	transfer 	of 	supervisory 	duties 	from
a 	unit 	of 	rank-and-file 	employees 	to 	supervisory 	employees 	is
not 	in 	itself 	conduct 	that 	violates 	either 	employee 	or
organizational 	rights 	guaranteed 	by 	the 	Act. 	I, 	therefore,
decline 	to 	join 	in 	the 	majority's 	unwarranted 	extension 	of 	the
rule 	stat~a 	in 	Rialto, 	supra, 	and 	Solano, 	supra, 	to 	the 	facts
of 	this 	case.
24

Gluck, 	Chairperson, 	concurring: 	The 	bargaining 	unit 	here
was 	established 	by 	agreement 	between 	the 	parties 	pursuant 	to
the 	authority 	for 	such 	arrangements 	found 	in EERA 	sections 	3544
and 	3544.1. 	Department 	chairpersons 	were 	included 	in 	the 	unit
by 	that 	agreement. 	The 	alleged 	supervisory 	duties 	were
performed 	by 	these 	employees 	at 	that 	time. 	Whether 	such 	an
agreement 	should 	have 	been 	made 	in 	light 	of 	the 	proscription 	of
mixed 	units 	by 	section 	3545 	cannot 	be 	determined 	from 	the
record. 	Despite 	the 	confident 	assertions 	in 	the 	dissenting
opinion, 	the 	record 	of 	supervisory 	duties 	is 	found 	only 	in 	job
specifications 	couched 	in 	general 	and 	inconclusive 	language.l
Subsection 	3540.l(m) 	clearly 	acknowledges 	that 	the 	mere
existence 	of 	duties 	which 	are 	apparently 	supervisory 	in 	nature
does 	not 	in 	itself 	require 	that 	employees 	charged 	with 	such
responsibilities 	be 	excluded 	from 	nonsupervisory 	employee
units. 	To 	the 	contrary, 	it 	includes 	in 	the 	definition 	of
supervisory 	employee 	only 	those 	who 	use 	independent 	judgment
and 	exercise 	their 	authority 	in 	other 	than 	routine 	manner.2
In 	deciding 	whether 	to 	issue 	a 	complaint 	based 	on 	unfair
practice 	charges, 	PERB 	has 	never 	considered 	whether 	the 	unit 	in
lThe 	Association's 	ambiguous 	references 	to 	the 	department
chairs' 	satisfactory 	performance 	or 	its 	suggestion 	that 	a
supervisory 	unit 	be 	established, 	do 	not 	convert 	this 	material
into 	"uncontroverted 	evidence" 	that 	the 	employees 	in 	question
are 	supervisors 	within 	the 	meaning 	of 	the 	Act.
2This 	section 	also 	makes 	it 	clear 	that 	"job 	descriptions"
are 	not 	to 	be 	controlling 	in 	the 	determination 	of 	supervisory
status.
25

which 	the 	dispute 	arose 	is 	"appropriate." 	Possibly, 	in 	light
of 	the 	prevalence 	of 	long-existing, 	voluntarily created 	units,
the 	Board 	has 	been 	sensitive 	to 	the 	enormous 	potential 	for
disruption 	of 	established 	bargaining 	relationships 	throughout
the 	public 	school 	system 	if 	it 	were 	to 	first 	test 	the
appropriateness 	of 	such 	units 	against 	the 	criteria 	it 	must
apply 	when 	dealing 	with 	a 	petition 	for 	the 	establishment 	of 	a
unit. 	(See 	section 	3545, 	supra.) 	To 	permit 	a 	modification 	of
the 	unit 	here 	by 	its 	decision 	in 	this 	unfair 	practice 	case,
could 	open 	the 	door 	to 	just 	such 	mischief 	in 	the 	future.
The 	Board 	has 	not 	been 	insensitive 	to 	the 	possibility 	that
circumstances 	may 	require 	the 	adjustment 	of 	existing 	units. 	It
has 	provided 	a 	liberal 	regulation 	which 	authorizes 	the 	parties
to 	agree 	to 	unit 	modifications 	without 	PERB 	approval, 	a 	policy
in 	harmony 	with 	sections 	3544 	and 	3544.1. 	Where 	agreement 	is
not 	reached, 	its 	regulation 	327813 	authorizes 	an 	employer 	to
petition 	the 	Board 	for 	appropriate 	relief.4
3PERB's 	rules 	and 	regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31001, 	et 	seq.
4The 	dissent's 	concern 	for 	the 	District's 	possible
reluctance 	to 	upset 	its 	collegial 	relationships 	if 	it 	were 	to
seek 	unit 	modification 	is 	laudable 	but 	does 	not 	change 	the 	fact
that 	the 	District's 	other 	option 	is 	to 	sit 	down 	with 	the
employees' 	representative 	and 	reason put 	a 	solution 	to 	its
problem, 	a 	process 	most 	suitable 	to 	the 	maintenance 	of
satisfactory 	employee 	relationships. 	In 	any 	event, 	nothing 	in
the 	majority 	decision 	suggests 	that 	the 	District's 	interests
are 	beyond 	redemption, 	as 	the 	dissent 	seems 	to 	imply.
26

These
	considerations 	aside,
	it
	is
	my
	belief 	that
	the
dissent
	overlooks 	the
	full
	meaning
	of
	section
	3545.
	An
employee
	who
	performs
	truly
	supervisory
	duties
	is
	a
	supervisory
employee.
	This
	is
	true
	even 	though
	he
	or
	she
	also
	performs
non-supervisory 	functions.
	I
	find 	nothing
	in
	the
	Act 	which
empowers 	an
	employer
	to
	partition
	an 	employee 	(or
classification)
	into
	excludable
	and
	includable 	halves.
Nor
	do
	I
	think
	that
	the
	issue
	here
	is
	whether
	the
performance
	of 	supervisory
	duties
	converts
	such
	duties 	into
bargaining 	unit
	work.
	Rather,
	it
	is
	whether
	an
	employer,
	who
bv
	his
	voluntary
	agreement 	with
	a
	recognized
	employee
organization
	has
	himself 	defined 	the
	unit
	and
	the
	work
	to
	be
performed
	therein,
	should
	be
	allowed
	to
	unilaterally
	make
	the
kind 	of
	changes
	made
	here.
	In
	Alum
	Rock,
	supra,
	we
	held, 	as
	we
do
	here, 	that
	reclassification 	is
	subject 	to 	negotiation.
	It
is
	no
	less
	important
	that
	the
	alteration
	of
	an
	existing
bargaining 	unit
	not
	be
	left
	to 	the
	unilateral
	determination 	of
a
	party
	to
	the 	bargaining
	relationship.
27

APPENDIX
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of
	the
	State 	of
	California
After
	a
	hearing 	in
	Case
	No.
	LA-CE-133,
	Mount
	San
	Antonio 	College
Faculty 	Association,
	CTA/NEA
	v.
	Mount
	San
	Antonio
	Community
	College
District,
	in
	which
	all
	parties
	had
	a
	right
	to
	participate,
	it
	has
been
	found
	that
	the
	Mount
	San
	Antonio
	Community
	College
	District
violated
	subsections 	3543.S(a),
	(b)
	and 	(c)
	of
	the
	Educational
Employment
	Relations
	Act
	when
	it
	unilaterally
	modified
	the 	stipends
of
	department
	chairpersons,
	changed
	their
	hours
	of
	employment,
	and
transferred 	unit
	work
	to 	non-unit
	members.
	As 	a
	result
	of
	this
conduct,
	we
	have 	been
	ordered 	to 	post
	this
	Notice
	and
	will:
A.
	CEASE
	AND
	DESIST
	FROM:
1. 	Refusing
	and
	failing
	to 	negotiate
	in
	good
	faith
	with
the
	Mount
	San
	Antonio
	College 	Faculty 	Association,
	CTA/NEA, 	by
engaging 	in
	the
	above
	conduct.
2.
	Interfering
	with 	the
	rights
	of
	employees
	to
	be
represented
	by
	engaging
	in 	the
	above
	conduct.
3. 	Denying
	the 	Association
	its
	rights
	to
	represent 	unit
members	
by 	engaging
	in 	the
	above
	conduct.
B.
	TAKE 	THE
	FOLLOWING
	AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE
	ACT:
1.
	Upon
	request 	of 	the
	Association,
	meet 	and
	negotiatewith 	the 	Association 	concerning 	the
	transferring 	of 	unit
	work,
	the
modification 	of
	department
	chairperson 	stipends,
	and
	the
	change
	in
hours
	of
	department
	chairpersons.
2. 	Pay
	to 	the 	affected
	employees
	the
	difference
	in
	wages
between
	that
	which
	they 	earned
	and
	that
	which
	they 	should
	have
earned 	in 	the 	absence
	of 	the
	employer
	unilateral 	action,
	minus 	any
mitigation,
	from
	May
	18,
	1977
	until
	the 	occurrence 	of 	the
	earliest
of 	the 	following
	conditions:
	(a)
	the 	date 	the
	District
	negotiates
an 	agreement 	with 	the 	Association 	concerning 	the 	issues 	raised
	by
this
	Decision;
	(b) 	a 	bona
	fide
	impasse 	in 	bargaining 	occurs;
	or
(c) 	the 	Association
	fails
	to 	reques~ 	bargaining 	within 	five
	days
	of
this
	Decision.
MOUNT 	SAN
	ANTONIO
	COtvllviUNITY
	COLLEGE
DISTRICT
Dated:
--------
By
Authorized 	Representative
THIS 	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN 	POSTED 	FOR 	THIRTY 	(30)
CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING 	AND MUST 	NOT 	BE
REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED 	OR COVERED BY 	ANY MATERIAL.