Upper Lake Union Elementary School District (PERB 0736E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UPPER LAKE 	UNION ELEMENTARY SCHOOL
DISTRICT,
Employer,
and
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	UPPER LAKE
CHAPTER #42 7,
Exclusive Representative.
Case No. 	SF-R-689
PERB Decision No. 	735
May 4, 	1939
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Appearances: 	John A. 	Drummond, 	Attorney, 	for Upper Lake Union
Elementary School District; 	Michael Pirsch, 	Field Representative,
for California 	School 	Employees 	Association and 	its 	Upper 	Lake
Chapter #427.
Before Hesse, 	Chairperson; 	Porter and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
California 	School 	Employees 	Association and 	its 	Upper 	Lake
Chapter #42 7 	(CSEA or Union) 	and the Upper Lake Union Elementary
School 	District 	(District) 	to 	the 	attached proposed decision of
the 	Board agent 	insofar as 	it 	found 	that 	the District 	secretary
is 	a 	confidential 	employee under 	section 	3540.1 	of 	the
Educational 	Employment Relations Act 	(EERA),1 and therefore not
1The EERA 	is 	codified at Government Code 	section 	3540 	et
seq. 	All 	statutory references 	herein are to the Government Code
unless 	otherwise 	noted.
Section 3540.l(c) 	states:
As 	used 	in this 	chapter:

(c) 	"Confidential employee" 	means any
employee who, 	in the regular course of his 	or
her duties, 	has access to, 	or possesses
information relating to, 	his 	or her
employer's 	employer-employee 	relations.
2We 	note the 	Union's 	exception to 	the Board agent's 	factual
finding 	regarding 	the 	number 	of 	classified 	employees 	in the
District. 	The District affirms 	in its 	responsive brief 	that
there are 39 	classified employees, 	not 51, 	as 	found by the Board
agent.
'There 	is 	also an Upper Lake Union High School 	District,
which 	consists 	only of the 	Upper Lake 	Union High School.
an 	appropriate 	member of 	the 	collective 	bargaining unit 	to be
represented by CSEA. 	After a review of the 	entire record, 	the
Board affirms 	the 	findings 	of 	fact 	and 	conclusions 	of 	law of 	the
Board agent, 	consistent with the 	following discussion.2
FACTUAL 	SUMMARY
Pearl 	Elliston 	(Elliston) 	works 	for the Upper Lake 	Union
Elementary 	School 	District 	as 	a 	District 	secretary 	and her 	salary
is 	paid by the District. 	This 	District 	is made up of 	one 	school
3	only, 	the Upper Lake Elementary School.' Elliston has 	an office
in the 	elementary 	school 	next to the 	office of 	the principal,
Mr. 	Lombard. 	Mr. 	Detton, 	superintendent of both the Upper Lake
Union Elementary 	School 	District 	and 	the 	Upper Lake 	Union High
School District, 	maintains an office 	in the high school.
Elliston performs 	work 	for both 	Lombard 	and 	Detton.
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Lombard 	is 	involved 	in the 	evaluation 	and dismissal 	of
school 	employees 	and the processing of 	employee grievances.4 As
the 	secretary to Lombard, 	Elliston types 	employee 	evaluations 	and
other documentation relevant 	thereto. 	She 	has 	typed documents
regarding employee grievances, 	has participated in meetings 	as 	a
witness, 	and typed 	statements 	by Lombard regarding 	employee
grievances 	and 	employee terminations. 	Elliston also maintains
the personnel 	files, 	locking the 	file cabinet 	each night and
opening 	it each morning, 	as well 	as 	helping the bookkeeper who
calculates 	employment contracts, 	attendance records, 	and other
personnel documents.
Superintendent 	Detton 	is 	involved 	in 	labor 	negotiations 	for
the District. 	As District 	secretary, 	Elliston types 	the
Governing 	Board 	Information Packet 	(Board Packet) 	which 	is 	a
memorandum 	sent by Detton to 	each 	of 	the 	District 	board members
delineating 	employee proposals 	and 	outlining his 	recommendations
with 	regard 	to 	each, 	including 	counterproposals 	and 	negotiation
strategy.5 In addition, 	Elliston takes 	and transcribes 	the
4There 	is 	a 	formal 	grievance procedure available to
employees 	which 	is 	found 	in the 	board policy book which 	Elliston
maintains.
5We 	find CSEA's 	exception that 	the 	Board Packet 	is 	a public
record to be without merit. 	Just as 	negotiation meetings 	between
the 	District 	and 	its 	negotiator 	are 	exempt 	from the public
meeting 	laws 	under 	section 	3549.l(d) 	of 	EERA which reads 	as
follows:
All 	the proceedings 	set 	forth 	in 	subdivisions
(a) 	to (d), 	inclusive, 	shall be exempt from
the provisions 	of 	Sections 	965 	and 	966 	of 	the
Education Code, 	the Bagley Act 	[Article 	9
(commencing with Section 	11120) 	of Chapter 	1
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minutes 	of 	the board meetings. 	At the board meetings 	issues
discussed 	include 	responses 	to 	employee proposals 	regarding
wages, 	conditions of work, 	employment benefits, 	employee
terminations 	or dismissals, 	and other personnel 	and negotiation
issues.
of Part 	1 	of Division 3] 	and the Ralph M.
Brown Act 	(Chapter 	9 	commencing with 	Section
54950) 	of Part 	1 of Division 2 of Title 5,
unless 	the parties 	mutually agree 	otherwise:
(d) 	Any executive 	session of the public
school 	employer or between the 	public 	school
employer 	and 	its 	designated 	representative
-for the purpose of 	discussing 	its 	position
regarding 	any matter within the 	scope 	of
representation 	and 	instructing 	its 	designated
representatives.
(Emphasis 	added.)
so too, 	we believe the negotiation memoranda with respect thereto
are 	also 	exempt 	from disclosure 	under Government Code 	section
6254(a) 	of the Public Records Act of the State of California
(Gov. 	Code secs. 	6250 et seq.). 	The Board Packet, 	an internal
memorandum which 	contains 	negotiation 	strategy 	and 	suggestions
for upcoming board sessions, 	is, 	therefore, 	found to be exempt
from disclosure under the Public 	Records Act, 	inasmuch as 	the
public 	airing 	of 	such proposals 	and 	suggestions 	regarding 	future
labor relations 	issues would undermine the 	collective bargaining
process 	and render 	it 	ineffective, 	and would clearly be 	against
the public 	interest.
DISCUSSION
The only 	issue presented by the parties' 	exceptions 	to 	the
Board 	agent's 	decision 	is 	whether the 	District 	secretary 	should
be 	designated 	a 	confidential 	employee 	under 	section 	3540.1 	of
EERA, 	thereby 	excluding her 	from membership 	in 	the petitioned 	for
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bargaining unit.6 The 	District's 	exceptions 	concerning 	the
failure 	of 	the 	Board agent to 	include 	all possible 	facts 	in the
record 	supportive 	of 	the determination that 	Elliston 	is 	a
confidential 	employee have no merit. 	We 	find 	the 	Board 	agent
need not 	list 	each and 	every 	fact 	in 	support of 	the
determination. 	Rather, 	it 	is 	sufficient to 	identify the 	salient
and most 	important facts, 	so long as 	the record as 	a whole
substantiates 	the decision.
CSEA 	excepts 	to 	the 	Board 	agent's 	reliance 	on 	Sierra 	Sands
Unified School District 	(1976) 	EERB Decision No. 	2 	[1 PERC 3 ] , 7
which 	enunciated 	the policy that 	an 	employer 	should be 	allowed 	a
nucleus 	of 	employees 	upon which 	it 	could 	rely 	in 	formulating 	its
6If 	a District 	secretary is 	a confidential 	employee, 	she
cannot be 	represented by CSEA according to 	section 	3543.4, 	which
states:
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No person 	serving 	in a management position,
senior management position, 	or a confidential
position 	shall 	be 	represented by an 	exclusive
representative. 	Any person serving in 	such a
position may 	represent 	himself 	or 	herself
individually or 	by 	an 	employee 	organization
whose membership 	is 	composed 	entirely of
employees 	designated 	as 	holding 	such
positions, 	in his or her employment
relationship with 	the public 	school 	employer,
but, 	in no case, 	shall such an organization
meet 	and negotiate with 	the public 	school
employer. 	No representative 	shall be
permitted by a public 	school 	employer 	to 	meet
and 	negotiate 	on any benefit 	or 	compensation
paid to persons 	serving 	in a management
position, 	senior management position, 	or a
confidential position.
7Prior to January 	1, 	1978, 	PERB was 	know as the Educational
Employment Relations Board 	(EERB).
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labor relations 	policy. 	CSEA 	further argues 	that National 	Labor
Relations 	Board 	(NLRB) 	decisions 	stating the 	test 	for determining
who 	is 	a 	confidential 	employee 	are 	controlling on this 	particular
issue. 	We disagree, 	and will address 	those two issues.
The National Labor Relations Act 	(NLRA) 	does 	not 	contain any
specific 	statutory 	exclusion 	for 	confidential 	employees 	as 	does
EERA. 	The NLRA does 	not 	contain even an 	implied 	exclusion of
confidential 	employees. 	(See National 	Labor Relations 	Board v.
Hendricks City Rural Electric Corporation 	(1981) 	454 U.S. 	170,
102 	S.Ct. 	216.) 	Conversely, 	EERA has 	specific 	statutory language
defining 	confidential 	employees 	and 	excluding 	them 	from being
represented by an exclusive representative. 	Because 	the NLRA
contains 	no parallel provision or 	similar 	language to EERA, 	we
are 	not persuaded by NLRB decisions, 	and accordingly adhere 	to
our precedent decisions 	on this 	subject. 	(See Moreno Valley
Unified School District v. 	PERB 	(1983) 	142 Cal.App.3d 	191, 	196;
and Los Angeles 	Unified 	School 	District 	(1976) 	EERB 	Decision
No. 	5 	[1 PERC 18], 	at p. 	3, 	footnote 1.)
We reaffirm Sierra Sands. 	supra, 	which defines a
confidential 	employee as 	"any employee who, 	in the regular course
of his duties, 	has access to, 	or possesses information relating
to, 	his 	employer's 	employer-employee relations." 	In Fremont
Unified School District 	(1976) 	EERB Decision No. 	6 	[1 PERC 21],
p. 	11, 	the Board reaffirmed Sierra 	Sands 	and held that 	"employer-
employee relations" 	includes 	"at the least, 	employer-employee
negotiations 	and the processing of 	employee 	grievances."
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Confidential 	status 	is 	limited to 	(1) 	those 	employees who assist
and 	act 	in a 	confidential 	capacity to persons who 	formulate,
determine 	and 	effectuate 	management policies 	in 	the 	field 	of
labor relations; 	and 	(2) 	persons who, 	although not assisting
persons 	exercising managerial 	functions 	in the 	labor 	relations
area, 	regularly have access 	to confidential 	information
concerning 	anticipated 	changes 	which 	may 	result 	from 	collective
bargaining negotiations. 	(See 	Unit 	Determination 	for Professional
Librarians 	of 	the University of California 	(1983) 	PERB Decision
No. 	247b-H 	[7 PERC 	14107], 	p. 	21.) 	An employee must have
involvement 	substantial 	enough 	so 	that 	the 	employer's 	ability to
negotiate 	on an 	equal posture with 	the 	union would be 	jeopardized
if 	the 	information were made prematurely public. 	(See Campbell
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Union High School District 	(1978) 	PERB Decision No. 	66 	[2 	PERC
2166], 	p. 	4, 	where the Board held a principal's 	secretary who
maintained 	files 	and 	processed 	correspondence 	regarding
negotiations 	and 	employee 	grievances was 	a 	confidential
employee.) 	In Imperial Unified School District 	(1987) 	PERB
Decision No. 	647 	[12 PERC 	19013], 	"in the regular course of his
duties" 	was 	held to mean that more than a 	fraction of 	the
employee's 	time was 	spent on confidential matters, 	although the
frequency of access was 	not important.
As 	the 	District 	secretary, 	Elliston regularly types 	the
Board 	Packet 	which 	contains 	information 	regarding 	employer-
employee negotiations, 	including negotiation tactics 	and
strategy. 	If 	the Board Packets were made 	available publicly or
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to the Union, 	it would 	jeopardize the District's 	ability to
negotiate on an equal posture with 	regard to those 	issues.
Elliston also 	types 	employee 	evaluations 	and documentation
relating to 	employee grievances, 	as well 	as maintaining personnel
files 	and documents. 	She has 	attended employee grievance
meetings 	and has 	typed documents 	relating thereto.8
Based upon the above, 	we 	find that Elliston has 	access 	to or
possesses 	information relating 	to 	both 	employer-employee
negotiations 	and the processing of 	employee 	grievances. 	We 	hold
that her 	involvement with 	such 	employer-employee 	relations 	is
substantial 	enough 	so that 	the District's 	ability 	to 	negotiate 	on
an equal posture would, 	in fact, 	be 	jeopardized if 	such
information were made prematurely public.
ORDER
Based upon a 	review of the 	entire record, 	we 	affirm the
Board agent's 	finding that Elliston 	is 	a 	confidential 	employee
under 	section 3540.1 	of EERA and is, 	therefore, 	not a proper
member 	of 	the bargaining unit which CSEA petitioned 	to 	represent.
Chairperson 	Hesse 	and Member 	Porter 	joined 	in this 	Decision.
8It 	should be 	noted that 	although 	the 	Board affirms 	the
policy enunciated 	in Sierra Sands. 	supra, 	that an employer 	should
be 	allowed a 	small 	nucleus 	of 	individuals 	to assist him 	in
development 	of 	the 	employer's 	positions 	for the purposes 	of
employer-employee 	relations, 	we 	need not 	today decide the 	issue
of whether an employer must 	show that 	one 	is 	already performing
confidential 	duties 	even where 	a 	representation petition has
recently been filed. 	We 	find 	that 	Elliston 	is 	presently
performing 	sufficient 	confidential 	duties 	to warrant 	her
designation as 	a confidential 	employee.
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STATE OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
UPPER 	LAKE 	UNION 	ELEMENTARY
SCHOOL 	DISTRICT,
Employer,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	UPPER 	LAKE
CHAPTER 	#427,
Exclusive 	Representative.
Representation
Case No. 	SF-R-689
PROPOSED 	DECISION
(8/16/88)
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Appearances: 	John A. 	Drummond, 	Schools Attorney, 	for Upper
Lake Union Elementary School District; 	Michael Pirsch, 	Field
Representative, 	for California 	School 	Employees Association 	and
its Upper Lake Chapter 	#427.
PROCEDURAL 	HISTORY
On June 12, 	1987, 	the California School Employees
Association 	and 	its Upper Lake Chapter 	#427 	(CSEA) 	filed 	a
request 	for 	recognition 	as 	the 	exclusive 	representative 	of 	a
comprehensive 	unit 	of 	classified 	employees 	employed 	by 	the
Upper Lake Union Elementary School 	District 	(District). 	On
October 	7, 	1988, 	the District 	filed a denial of 	recognition
with 	the Public Employment Relations 	Board 	(PERB or 	Board),
doubting 	the 	appropriateness 	of 	the 	requested unit. 	An
investigation/settlement 	conference 	was 	conducted 	by 	PERB 	on
November 	10, 	1987, 	at which time the parties 	settled 	all 	issues
with 	the 	exception 	of 	the 	alleged 	confidential 	status 	of 	the
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
Before Jerilyn Gelt, 	Hearing Officer.
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District 	secretary 	and 	the 	alleged 	supervisory 	status 	of 	the
maintenance 	supervisor 	and 	supervisor 	of 	food 	services. 	An
election was 	held on December 	17, 	1987 pursuant 	to 	a Directed
Election Order, 	and CSEA was 	certified 	as 	the 	exclusive
representative 	of 	the classified 	employees 	in 	the District 	on
January 2, 	1988. 	A formal 	hearing was 	held to 	resolve 	the
status 	of 	the classifications 	in dispute on December 	10, 	1987
and January 8, 	1988.
ISSUES
1. 	Is 	the District 	secretary a 	confidential 	employee
within 	the meaning 	of 	section 	3540.l(c) 	of 	the Educational
Employment 	Relations 	Act 	(EERA 	or 	Act)?1
2. 	Is 	the 	supervisor 	of 	food 	services 	a 	supervisory
employee within 	the meaning 	of 	section 	3540.l(m) 	of 	the EERA?
3. 	Is 	the maintenance 	supervisor 	a 	supervisory employee
within 	the meaning 	of 	section 3540.l(m) 	of 	the EERA?
DISCUSSION
The Upper 	Lake Union Elementary School 	District 	is 	a
one-school 	district with 	an 	average 	daily 	attendance 	of 	542
students. 	At 	the time of 	the hearing, 	it employed one
principal, 	25 teachers, 	and 51 classified employees. 	There are
no 	classified 	employees 	designated 	supervisory 	or 	confidential
in the District 	other 	than those 	in dispute 	in this 	case. 	The
1The EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	statutory 	references 	herein 	are 	to 	the 	Government
Code 	unless 	otherwise 	noted.
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teachers 	are 	not 	represented 	by 	an 	exclusive 	representative
under 	the EERA. 	The District 	shares 	a 	superintendent with 	the
Upper Lake Union High School 	District, 	also 	a 	one-school
district.
District 	Secretary
Pearl Elliston has 	been employed 	as 	a 	secretary 	in the
District 	since 	1973. 	She 	functions 	in a dual 	capacity as
school 	secretary, 	reporting to Principal Robert Lombard, 	and 	as
District 	secretary, 	reporting 	to 	Superintendent 	Richard
Detton. 	She 	is 	evaluated by Lombard. 	Her duties 	as 	school
secretary 	include 	typing 	evaluations 	of 	some 	classified 	and 	all
certificated employees, 	maintaining personnel 	files, 	answering
the 	telephone, 	and other 	clerical 	tasks 	required 	by Lombard.
In her 	capacity as 	District 	secretary, 	Elliston takes 	and 	types
minutes 	of 	school 	board meetings 	and 	types 	Governing 	Board
Information Packets 	prepared 	by Detton. 	These 	packets 	contain
such 	information 	as 	Detton"s 	responses 	to 	proposals 	presented
by 	both 	classified 	and 	certificated 	employees 	regarding 	salary
increases, 	health and welfare benefits, 	hours, 	and seniority.
The 	packets 	also 	include Detton's 	analyses 	of 	the 	impact 	of
these proposals 	on the District, 	as well 	as 	his 	recommendations
for 	negotiation 	strategy and 	board 	action. 	For 	example, 	in 	the
May 26, 	1987 packet,2 Detton 	recommended 	that 	the governing
2See 	District 	Exhibit 	C.
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board 	approve 	the 	concept 	of 	paid 	prescriptions 	proposed 	by 	the
teachers, 	but 	that 	the 	teachers 	be 	asked 	to 	trade-off 	one
percent 	of 	their 	salary 	for 	this 	item. 	In that 	same packet,
Detton 	advised 	the 	governing 	board 	not 	to 	grant 	the 	six 	percent
salary 	increase 	requested 	by the 	classified employees, 	but 	to
offer 	three 	percent 	instead.
Government 	Code 	section 	3540.l(c) 	provides:
"Confidential 	employee" 	means 	any employee
who, 	in the 	regular course of his 	or her
duties, 	has access to, 	or possesses
information relating 	to, 	his 	or her
employer's 	employer-employee 	relations.
In Sierra 	Sands Unified 	School 	District 	(1976) 	EERB
Decision No. 	2, 	the Board set 	forth its 	general 	policy
regarding 	confidential 	status, 	noting 	that 	Government 	Code
section 	3540.l(j) 	excludes 	confidential 	employees 	from coverage
under 	the Act. 	The Board held 	that 	an 	employer 	should 	be
allowed 	a 	small 	nucleus 	of 	individuals 	to 	assist 	the employer
in 	its 	employer-employee 	relations, 	and that 	the employer's
right 	to 	the 	undivided 	loyalty of 	its 	confidential 	employees
outweighs 	the 	denial 	of 	representation 	rights 	to 	those
employees. 	However, 	the mere access 	to or possession of
confidential 	information by an employee will 	not, 	by 	itself,
result 	in a 	confidential 	designation. 	The 	individual 	must 	have
access 	to 	or 	possess 	sufficient 	information to warrant 	the
3Prior to January 1, 	1978, 	PERB was 	known as 	the
Educational 	Employment 	Relations 	Board 	or 	EERB.
A	4

conclusion 	that 	the 	employer's 	ability 	to 	negotiate with
employees 	from 	an equal 	posture might 	be 	jeopardized 	if 	the
information was 	prematurely made 	public.
In Fremont Unified 	School 	District 	(1976) 	EERB Decision
No. 	6, 	the Board 	interpreted 	"employer-employee 	relations" 	to
include, 	at 	least, 	negotiations 	and the processing of
grievances. 	The Board 	also 	noted 	that 	section 3540.l(c) 	does
not 	distinguish 	between 	information 	relating 	to 	certificated
employees 	and 	classified 	employees.
In this 	case, 	it 	is 	clear 	that 	the Governing Board
Information 	Packets 	prepared 	by 	the 	District 	secretary 	are
confidential 	in nature. 	The 	packets 	contain 	recommendations
for 	negotiation 	strategy proposed 	by 	the 	superintendent 	as 	well
as 	his 	analyses 	of 	the 	impact 	on the District 	of 	the proposals
put 	forth 	by 	both 	certificated 	and 	classified 	employee
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groups. 	Thus, 	the District 	secretary's preparation of 	these
packets 	relating 	to 	negotiations warrants 	designating 	her
position 	as 	confidential.
Furthermore, 	since 	there 	are currently no 	confidential
employees 	in the District, 	the designation of 	the District
secretary 	as 	confidential 	falls well within 	the 	"small 	nucleus"
guidelines 	established 	by the 	Board. 	It 	is 	highly probable
that 	the 	need 	for 	at 	least 	one 	confidential 	employee 	in 	the
4 The 	record 	does 	not 	support 	CSEA's 	claim 	that 	these
packets 	are public documents.
5

District will 	increase 	now 	that 	formal 	bargaining with 	an
exclusive 	representative under 	the Act 	has 	become 	a 	reality.
Supervisor 	of 	Food 	Services
At 	the 	time of 	this 	hearing, 	the 	incumbent 	supervisor 	of
food 	services, 	Chris Morrow, 	had been employed 	in that 	position
for 	nearly three 	and one-half 	years.55 Morrow 	is 	responsible
for 	the 	food 	service 	program 	in 	both 	the 	Elementary 	School
District 	and 	the High School 	District. 	She plans menus,
monitors 	food 	supplies, 	prepares 	state 	reports 	and monthly
budgets, 	assists 	in food preparation and, 	in general, 	oversees
the operation of 	the kitchens.
There 	are 	four 	other 	food 	service 	employees 	employed 	by 	the
District: 	one full-time cook, 	Paulette Mayette; 	two part-time
cook's 	helpers, 	JoAnn Dolan 	(at 	the elementary school) 	and
Terri 	Strong 	(at 	the high school), 	and a part-time bookkeeper,
Sandy Mankins. 	Morrow 	is 	paid 	at 	a 	higher 	rate 	than the other
food 	service 	employees.
Morrow has 	participated 	in 	the 	hiring 	process 	in varying
degrees. 	During 	the 1984-85 	school year, 	Morrow informed
Lombard 	that 	she 	needed 	another 	food 	service 	employee 	on 	an
on-call 	basis. 	Lombard 	instructed her 	to 	find 	someone 	for 	the
5Morrow's 	original 	title, 	cafeteria 	supervisor, 	was
changed 	to 	food 	service 	director 	at 	her 	request 	when 	the 	High
School 	District 	became 	an 	additional 	responsibility 	in
1986 	-87. 	Her 	title was 	changed to 	supervisor of 	food 	services
in the fall of 	1987.
6

job, 	which she did. 	She then hired that person, 	Donna
Allendorf, 	without Lombard's 	input or 	review. 	Allendorf
continued 	to work 	for 	the 	District 	through 	the 	1986-87 	school
year.
In the fall 	of 	1986, 	she 	screened applications 	for 	the
newly-created 	cook's 	helper 	position 	at 	the high 	school,
interviewed 	applicants, 	and 	recommended 	for 	hire 	one 	of 	the
applicants, 	Jacqueline Bind. 	Bind was 	hired by the District
based 	solely on Morrow's 	recommendation. 	No 	hiring 	panel was
convened due 	to 	a 	pressing 	need 	to 	fill 	the vacancy.
Morrow was 	also 	involved 	in hiring 	Dolan 	in 	late November,
1987. 	She 	screened 	approximately 30 	applications, 	selected 	the
applicants 	to 	be 	interviewed 	(including 	one 	by 	request 	of
Lombard), 	sat on the hiring panel with Lombard, 	a community
member 	and one other person, 	and, 	by her uncontested 	testimony,
was 	instrumental 	in persuading 	the panel 	to 	hire 	Dolan.
In early November, 	1987, 	Strong, 	who was working for the
District 	as 	an aide, 	was hired 	as 	a cook's helper over 	the
objections 	of Morrow, 	who 	felt 	that 	she was unqualified 	for 	the
position due 	to 	lack of 	experience.66
Morrow 	is 	responsible 	for 	training 	and 	evaluating 	the 	food
service 	employees. 	She 	has 	issued 	both oral 	and written
reprimands 	in her 	role 	as 	food 	service 	supervisor. 	For
6AS 	discussed 	below, 	Morrow's 	hiring 	responsibilities 	had
been 	taken 	away 	from her 	during 	this 	time.
77

example, 	she 	has 	orally 	reprimanded Mayette 	regarding 	tardiness
and 	her 	performance of 	her cleaning duties, 	although 	such
reprimands 	have 	occurred 	only 	twice 	in Mayette's 	approximately
ten years 	of 	employment. 	She has 	also 	orally reprimanded
cafeteria 	aides 	regarding 	their 	lack of 	proper 	attention 	both
to 	the 	students 	and 	to 	their cleaning 	responsibilities. 	During
the 	1986-87 	school year, 	she 	reprimanded Mankins, 	both orally
and 	in writing, 	regarding her 	record-keeping, 	tidiness 	and 	cash
management.
During 	the 	fall 	of 	1986, 	Morrow 	frequently visited 	the 	high
school 	to 	evaluate 	its 	new 	food 	service 	program. 	She 	became
unhappy with 	Bind's 	performance 	there 	and 	switched 	her
assignment, 	moving 	her 	to 	the elementary school 	for 	the 	second
half 	of 	the 	school year. 	Subsequently, 	she 	recommended 	that
Bind 	be 	dismissed. 	Bind 	resigned 	prior 	to 	any 	action 	being
taken 	regarding 	that 	recommendation.
Apparently due 	to 	employee 	complaints 	about Morrow, 	several
of 	her 	duties 	were 	removed 	from her 	during May 	1987 	and were
reinstated without 	explanation on or 	about 	November 	20, 	1988,
shortly 	after 	the 	PERB 	investigation/settlement 	conference.
Those duties 	included calling 	substitutes, 	approving 	overtime
and 	time off, 	assigning 	hours 	and work, 	and participating 	on
hiring 	panels. 	She was 	also 	informed by 	registered mail 	during
the 	summer 	vacation 	that 	her 	title 	had 	been changed 	to
supervisor 	of 	food 	services, 	a 	change which did not 	affect 	her
88

sa1ary.
In 	its 	brief, 	CSEA cites Antioch Unified 	School 	District
(1984), 	PERB Decision No. 	415 which held that 	an employee
organization 	could 	prevail 	in 	a 	unit 	modification 	case 	" . . .
if 	it 	successfully 	argued 	that 	the District 	had 	fraudulently
misrepresented 	the 	duties 	performed 	by 	the 	[employees 	in
dispute], 	illegally changed their duties 	so as 	to give the
appearance of 	supervisory status, 	or 	engaged 	in 	some other
fraudulent 	or 	illegal 	conduct." 	Although 	the 	exact 	nature 	of
CSEA's 	allegations 	against 	the District 	pursuant 	to Antioch 	is
unclear 	from its 	brief, 	it 	appears 	to 	be 	arguing 	that 	the
District 	should 	be 	precluded 	from 	seeking 	the 	exclusion 	of 	the
supervisor 	of 	food 	services 	from 	the unit 	based 	on 	its 	actions
in 	reinstating 	alleged 	supervisorial 	duties 	to Morrow
subsequent 	to 	the 	investigation/settlement 	conference 	.
However, 	while 	the 	timing 	of 	the District's 	actions might 	raise
some 	suspicions, 	the 	record contains 	no 	evidence which would
support 	the 	type 	of 	fraudulent 	or 	illegal 	activity envisioned
by Antioch. 	Therefore, 	a determination of 	supervisory status
will 	be made 	based 	on 	the 	facts 	stated 	above.
Government Code 	section 3540.l(m) 	states:
"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
9

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 	merely of
a 	routine or clerical 	nature, 	but 	requires
the use of 	independent 	judgment.
Section 3540.l(m) 	is written in the disjunctive; 	therefore,
an 	employee 	need 	perform or 	effectively 	recommend 	only one 	of
the enumerated 	functions 	or duties 	to 	be 	a 	supervisor.
Sweetwater Union High School 	District 	(1976) 	EERB Decision
No. 4.
The 	supervisor 	of 	food 	services 	possesses 	several
responsibilities 	which warrant 	a 	finding 	of 	supervisory
status. 	She 	has 	used 	independent 	judgement when 	screening
applications 	and 	selecting 	candidates 	for 	interviews; 	she has
hired 	employees 	without 	higher 	review 	and 	has 	also 	effectively
recommended 	employees 	for 	hire. 	Sacramento 	City Unified 	School
District 	(1977) 	EERB Decision No. 	30A; 	Campbell Union High
School District 	(1978) 	PERB Decision No. 	66.
The 	supervisor 	of 	food 	services 	has 	also 	exercised
supervisory 	authority by changing 	the 	assignments 	of 	food
service 	employees when necessary. 	She 	trains 	new employees 	and
determines 	if 	substitutes 	are needed. 	Sacramento City, 	supra.
In 	addition, 	she 	is 	the only authority on 	site 	and 	is 	solely
responsible 	for 	the 	day-to-day operations 	of 	the 	kitchens.
Antioch, 	supra. 	Thus, 	the supervisor of 	food services 	is 	found
to 	be 	a 	supervisory employee under 	the EERA.
.. . .
10

Maintenance 	Supervisor
The 	incumbent maintenance 	supervisor, 	Bob Clouse, 	had been
employed 	in 	that 	position 	for 	three years 	at 	the 	time 	of 	the
hearing. 	Clouse 	reports 	directly to Lombard. 	His 	regular work
shift 	is 	6:30 	a.m. 	to 	3:00 	p.m., 	although 	he occasionally
reports 	to work at 	6:00 	a.m. 	in order 	to make 	repairs 	in 	the
classrooms 	prior 	to 	the beginning 	of 	the 	school 	day. 	In
general, 	his 	responsibilities 	include maintaining District
property 	and 	overseeing 	the work of 	two 	full-time 	custodians,
Ben Biter 	and Gary Winters, 	and two 	part-time custodians,
Sidney Fabish 	and Carolyn Hoover. 	Clouse 	is 	paid 	at 	a 	higher
rate 	than the custodians.
All 	of 	the custodians were 	hired while Clouse 	has 	been 	in
his 	present 	position. 	Clouse 	participated 	on 	the 	committee
which 	interviewed 	both 	Biter 	and Winters. 	The 	committee which
interviewed Biter consisted of Clouse, 	Lombard, 	a board member,
a 	teacher 	and 	a 	community member. 	That 	panel's 	first 	choice
resigned 	after 	one year, 	and 	Biter was 	then hired 	from the 	list
without 	another 	interview. 	He 	had 	been working 	for 	the
District 	part 	time when he was 	offered 	the 	full-time 	position.
Winters was 	hired by the 	concurrence 	of 	an 	interview
committee consisting of Clouse, 	Lombard, 	a teacher 	and a
community member. 	Fabish was 	hired without 	going 	through 	the
formal 	interview process, 	although the 	facts 	surrounding 	the
method 	of 	his 	employment 	are unclear.
11

Hoover was 	hired 	as 	a 	custodian by Lombard 	after 	her
custodial 	experience was 	revealed 	during 	an 	interview by 	a
panel 	convened 	to 	fill 	a 	food 	service vacancy. 	Clouse did 	not
participate 	on 	the 	panel 	and 	objected 	to 	his 	lack of
involvement. 	However, 	he agreed to 	"give her 	a try," 	and
subsequently 	agreed with 	Detton's 	suggestion 	that 	she 	be 	made
permanent.
The 	duties 	of 	the custodians 	are well-established. 	Any
special 	instructions 	are 	communicated 	by Clouse 	to 	the
custodians 	either 	in person 	or 	by messages 	left 	in 	the
custodians' 	room or with Winters. 	Clouse makes 	changes 	in
assignments when 	the 	addition of 	new classrooms 	creates 	an
inequitable distribution of work. 	Clouse 	checks 	on 	the 	rooms
on 	an 	irregular 	basis 	and 	informs 	the 	custodians 	of 	any
concerns 	regarding 	the performance of 	their duties. 	He
testified 	that Winters, 	who works 	the day shift with him, 	needs
little supervision. 	However, 	if Winters neglects 	to do
something, 	Clouse will bring 	it to his 	attention. 	If 	a
custodian 	is 	ill, 	Clouse will discuss with Lombard whether 	to
ask Fabish 	to work extra 	hours 	or 	to 	have 	the 	custodians 	work 	a
minimum 	cleaning 	day.
Clouse evaluates 	the custodians, 	turns 	the evaluations 	in
to 	Lombard 	for 	his 	review, 	and 	then discusses 	the 	evaluations
with 	the 	employees. 	Lombard 	has 	discussed 	evaluations with
Clouse 	on 	at 	least 	two 	occassions. 	Clouse 	testified 	that 	he
12

has 	never 	recommended dismissal 	for 	an employee. 	One
probationary employee, 	Austin Davis, 	was 	terminated by the
governing 	board 	two weeks 	after 	receiving 	a 	negative 	evaluation
from Clouse. 	However, 	Clouse did not 	expressly 	recommend 	that
Davis 	be dismissed 	and was 	not 	informed 	of 	the 	dismissal 	until
he 	returned 	from sick 	leave.
Biter was 	also 	dismissed 	(by Lombard) 	while Clouse was 	on
sick 	leave. 	He was 	rehired 	by Lombard 	and 	Detton 	shortly
thereafter. 	The dismissal 	took place without 	Clouse's
knowledge.
Clouse 	testified 	that 	he has 	issued written 	reprimands, 	to
Biter, 	Davis 	and probably one other 	custodian. 	Detton
testified 	that 	Clouse was 	not 	the 	only person who 	has 	issued
written 	reprimands 	to 	the 	custodians.
Clouse 	is 	responsible 	for 	insuring 	that 	adequate 	supplies
are 	available. 	However, 	Lombard must 	co-sign 	any purchase
orders 	Clouse 	issues 	for 	cleaning 	supplies 	and 	tools.
If 	a 	teacher 	has 	a 	complaint 	regarding 	the custodial
service, 	he or 	she usually takes 	that complaint 	to Lombard, 	who
then 	informs 	Clouse. 	The 	teacher may 	inform Clouse directly 	if
s/he 	happens 	to 	see 	him.
As 	noted 	above, 	an employee must use 	independent 	judgement
in 	performing 	or 	effectively 	recommending 	at 	least 	one 	of 	the
actions 	enumerated 	in Government Code 	section 3540.l(m) 	to 	be
found a 	supervisor. 	In this 	case, 	the 	record does 	not 	support
such 	a 	finding.
13

While 	the maintenance 	supervisor 	evaluates 	the 	custodians,
there 	is 	no 	evidence 	that 	he 	has 	effectively 	recommended 	that 	a
custodian be 	given permanent 	status, 	disciplined 	or 	dismissed
pursuant 	to 	those 	evaluations. 	Although the District 	strongly
emphasizes 	the 	role 	of 	the maintenance 	supervisor 	in 	the
evaluation procedure, 	Government Code section 3540.l(m) 	nowhere
indicates 	that 	evaluation of 	employees 	by itself 	is 	a
supervisory 	criterion.
The maintenance 	supervisor 	has 	participated 	in 	the 	hiring
process; 	however, 	his 	involvement 	is 	as part of a 	selection
committee and 	it 	is 	the committee, 	not 	the 	individual members,
that 	makes 	the 	recommendation 	regarding 	job 	applicants. 	In
fact, 	one custodian was 	interviewed by 	a 	panel which did not
include 	the maintenance 	supervisor. 	Such 	a 	limited 	role 	in
hiring does 	not 	achieve 	a dimension of 	"hiring" 	or 	"effectively
recommending" 	hiring under 	Board 	precedent. 	Foothill-DeAnza
Community College District 	(1977) 	EERB Decision No. 	10; 	Unit
Determination 	for 	the 	State 	of 	California 	(1980) 	PERB Decision
No. 	110c. 	See also Saxon Theatre 	(1981) 	259 NLRB 	1366, 	where
an employee's 	involvement 	in 	the 	hiring 	process 	is 	found 	to 	be
nonsupervisory when his 	role 	is 	that 	of 	a 	skilled 	craftsman
with 	knowledge 	of 	qualified 	applicants.
The 	record 	reflects 	that 	the maintenance 	supervisor 	acts 	as
an 	experienced 	leadperson 	rather 	than 	a 	supervisor 	in 	assigning
and directing 	the work of 	the custodians. 	New Haven Unified
. . .
14

School District 	(1977) 	EERB Decision No. 	14. 	While he makes
occasional changes 	in 	assignments, 	such 	changes 	require 	only
minor decisional 	authority and 	are, 	therefore, 	not 	indicative
of 	supervisory status. 	Cantua Elementary School 	District
(1983) 	PERB Decision No. 	295.
In previous 	cases, 	the Board has 	found 	employees with 	far
greater 	authority 	than 	that 	possessed 	by The 	maintenance
supervisor 	to be nonsupervisory. 	For example, 	in Oakland
Unified School District 	(1978) 	PERB Decision No. 	50, 	PERB held
supervisory 	custodians 	II-V 	to 	be 	rank-and-file 	leadpersons
despite 	their 	authority to 	prepare 	schedules, 	make 	routine work
assignments 	and 	evaluate 	employees. 	In Foothill-DeAnza 	CCD,
supra, 	custodial 	foremen were 	held 	nonsupervisory despite
evidence 	that 	they prepared 	evaluations, 	could 	initiate
termination 	proceedings, 	make 	hiring 	and promotion
recommendations 	and 	could 	direct 	employees 	to 	correct 	deficient
job performance. 	In 	light 	of 	these cases 	and based on the
evidence herein, 	the maintenance 	supervisor 	is 	found not 	to 	be
a 	supervisor 	under 	the 	EERA.
. .
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	and 	the 	entire 	record 	in 	this
matter, 	it is found that:
1. 	The District 	secretary is 	a confidential 	employee
within the meaning 	of 	Government 	Code 	section
3540.l(c), 	and, 	therefore, 	is not a part of the
classified 	bargaining 	unit.
15

2. 	The 	supervisor 	of 	food 	services 	is 	a 	supervisor
within 	the meaning 	of 	Government 	Code 	section
3540.l(m), 	and, 	therefore, 	is not a part of the
classified 	bargaining 	unit.
3. 	The maintenance 	supervisor 	is 	not 	a 	supervisor
within Government Code section 3540.l(m), 	and,
therefore, 	is 	a part of 	the classified bargaining
unit.
Right 	of 	Appeal
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this 	Proposed Decision and Order 	shall
become 	final 	unless 	a party files 	a 	statement 	of 	exceptions
with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento
within 20 days 	of 	service of 	this 	Decision. 	In 	accordance with
PERB Regulations, 	the 	statement 	of 	exceptions 	should 	identify
by page 	citation or 	exhibit 	number 	the 	portions 	of 	the 	record,
if 	any, 	relied upon for 	such exceptions. 	See California
Administrative Code, 	title 8, 	part III, 	section 32300. 	A
document 	is 	considered 	"filed" 	when 	actually 	received 	before
the close of 	business 	(5:00 	p.m.) 	on the 	last day set 	for
filing, 	". 	. 	. o r when sent 	by telegraph or certified or
Express 	United 	States mail, 	postmarked 	not 	later 	than 	the 	last
day 	set 	for 	filing 	. . . " 	See 	California 	Administrative 	Code,
title 8, 	part 	III, 	section 32135. 	Code of Civil 	Procedure
section 	1013 	shall 	apply. 	Any statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany each 	copy 	served 	on 	a 	party or 	filed with 	the 	Board
16

itself. 	See California Administrative Code, 	title 8, 	part 	III,
sections 32300, 	32305 and 32140.
Dated: 	August 16, 	1988
Jerilyn 	Gelt
Hearing 	Officer
17
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