Fremont Unified School District (PERB 0006E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

FREMONT UNIFIED SCHOOL DISTRICT,

Employer
and Case Nos. SF-R-8
SF-R-9
CALIFORNIA SCHOOL EMPLOYEES SF-R-10
ASSOCIATION, Chapter 204, SF-R-385

Employee Organization
EERB Decision No. 6
and
December 16, 1976
UNITED PUBLIC EMPLOYEES, LOCAL 390,
SERVICE EMPLOYEEES INTERNATIONAL
UNION, AFL-CIO,

Employee Organization

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Appearances: Arthur J. Krannawitter, Staff Representative, for
Fremont Unified School District; William D. Dobson, Attorney, for
California School Employees Association, Cahpter 204; Stuart
Weinberg, Attorney (Vanbourg, Allen, Weinberg and Roger), for
United Public Employees, Local 390, Service Employees
International Union, AFL-CIO.

Before Alleyne, Chairman, Gonzales and Cossack, Members.
OPINION
PROCEDURAL HISTORY

On April 1, 1976, United Public Employees, Local 390, Service
Employees Internation Union, AFL-CIO (UPE), filed three requests
for recognition with the Fremont United School District. The
three units requestedn were a "school operations" unit,’ a
"Skilled trades and crafts" unit’ and a "transportation" unit.?

* The request for recognition for the school operations

unit included in the unit the job classifications of: head
custodian, custodian I, custodian II, matron, and substitute
custodian. At the hearing, UPE amended the request to also
include the job classifications of grounds helper, gardener, and
gardener foreman. The number of employees in this requested unit
is approximately 161.

* The request for recognition for the skilled trades and
crafts unit included in the unit the job classifications of:
fire safety communications specialist, maintenance electrician,

maintenance plumber, equipment mechanic, maintenance carpenter,
maintenance glazier, maintenance locksmith, maintenance painter,
zomne building maintenance mechanic and grounds equipment
mechanic. 	At the hearing, UPE amended the request to delete the
job classifications of grounds equipment mechanic and maintenance
glazier, and to include the job classifications of gardening
mechanic, equipment operator, and maintenance carpenter-glazier.
The number of employees in this requested unit is approximately
36.
On April 2, 1976, California School Employees Association,
Chapter 204 (CSEA), filed an intervention to the three units
alleging majority support in a unit of all classified employees.
UPE subsequently filed an intervention to the unit sought by
CSEA alleging at least 30 percent support in a "food services"
unit.4 A formal unit determination hearing was held before a
hearing officer of the Educational Employment Relations Board on
July 29 and 30, 1976.
ISSUES
The first issue presented in this case is the designation of
an appropriate negotiating unit or units for the classified
employees of the Fremont Unified School District.
The remaining three issues are whether the Classified
Personnel Office Assistant, Certificated Personnel Office
Assistant and Secretary to the Associate Superintendent are
"confidential employees" within the meaning of the Act.
DISCUSSION
Appropriate Units
The Fremont Unified School District has an average daily
attendance of approximately 20,971 students in the elementary
scool and 11,788 students in the high schools, continuation
schools and an adult school. 	There are 48 sites on which are
distributed 35 elementary schools, six junior high schools, four
3 The request for recognition for a transportation unit
included in the unit the job classifications of: 	bus driver and
substitute bus driver. 	The number of employees in this requested
unit is approximately 46.
4 The intervention for a food services unit included in the
unit the job classifications of: 	cook, baker, food service
assistant I, food service assistant II, and food service
assistant transport. 	At the hearing, UPE amended the request to
delete the job classification of food service assistant transport
and include the job classification of food service assistant I -
transport. 	The number of employees in this requested unit is
approximately 103.

high schools, two continuation schools and one adult school.5
Regarding the unit determination issue, both CSEA and the
district urge the establishment of a single comprehensive
negotiating unit for the classified employees. 	CSEA emphasizes
that the bargaining proposals of CSEA and UPE in pst years have
reprsented all classified employees and genenrally contained
provisions broadly applicable to all classified employees. 	The
district primarily argues that the efficient operation of the
school district demands a single unit.
UPE opposes a single unit and asserts that the four units for
which it petitioned are each appropriate based upon a separate
and distinct community of interest. 	In addition to representing
evidence regarding community of interest factors for the
employees in these four units, UPE submitted evidence regarding
community of interest factors for the remaining classified
employees who can be generally identified as "instructional aide"
employees and "office-technical and business services" employees.
With regard to the determination of appropriate negotiating
units, Government Code section 3545(a) provides:
In each case where the appropriateness of the unit is an
issue, the board shall decide the question on the basis of
the community of interest between and among the employees and
their established practices including, among other things,
the extent to which such employees belong to the same
employee organization, and the effect of the size of the unit
of the efficient operation of the school district.
Applying the statutory criteria to the facts of this case, we
conclude, as we did in Sweetwater Union High School District,6
that the following unitsare appropriate: 	(1) 	a unit, which for
ease of reference we shall describe as an operations-support
services unit, consisting of the job classifications for which
UPE petitioned in its school operations unit, skilled trades and
crafts unit, transportation unit and food services unit, (2) an
instructional aides (paraprofessional) unit, and (3) an office-
technical and business services unit. 	None of these units shall
include noon-duty supervisors, for which neither party
petitioned, nor managerial, supervisory or confidential
employees.
5 While the record presents no evidence with respect to
these facts, we take official notice of the information reported
in the Annual Apportionments Report, California State Department
of Education, Form J-19 (July, 1976).
6 EERB Decision No. 	4, November 23, 1976.
I

We first address the criterion of the community of interest
between and among the employees.
With regard to the community of interest of the comprehensive
unit, the district noted that it is a merit system district with
a Personnel Commission established according to the scheme set
forth in Education Code sections 13701 et seq. 	The district
argues that the merit system renders unnecesary separate units
because the Personnel Commission promulgates rules which apply to
all classified employees while recognizing the special interest
and needs of certain employees.
We find that the existence of the merit system in this
district does not mandate the establishment of a comprehensive
classified employee unit. 	The merit system was devdloped to
assist directs in personnel matters prior to the time when
employees were able to select or reject an exclusive
representative. 	The procedures under the merit system do not
control the development of the new meeting and negotiataing
system implemented by Government Code section 3540 et seq.
The fours units for which UPE petitioned are a school
operatons unit, a skilled trades and crafts unt, a transportation
unit, and a food serivces unit. 	No e of these foure requested
units has a separate and distinct community of interest, even
though each of the four groups has come characteristics which
distinguish it from the other classified employees.
The school operations employees are different from the other
classified employees in that approximately half of these
employees work the swingor graveyard shifts rather than the day
shift. 	They generally report to work at the maintenance or
custodial offices at particular school sites, a location separate
form the reporting sites of the other classified employees, with
the exception of 11 employes who report to the grounds
department. 	Eighty of these employees receive either a paid
half-hour ljnch or a five percent shift differential as a result
of working odd shifts.
The skilled trades and crafts employees are also different in
some respects from the other classified employees. 	For these
employees, a general qualification for employment, in addition to
the equivalent of an eighth grade education, is a year of
journeyman work experience. 	Each of the crafts and trades have a
separate and distinct seniority tat is not interchangeable with
other employees either within or without the requested unit.
The transportation employees are distinguished from the other
classified employees in that they are all required to possess a
class II driver's license, a first-aid certificate and a
California Highway Patrol bus driver's certificate.
Approximately half of their compensation is from the state
transportation reimbursement fund. 	Additionally, they are
assigned their choice of total work hours and bus routes based
-

upon their seniority as a bus driver.
The food service employees are required to wear uniform
dress. 	They work in the kitchen at the school site to which they
are assigned. 	They receive educational incentive pay for taking
certain work-related courses at the local community college.
They are compensated through the meals for the Needy Program
which is funded through a local property tax override, income
from cafeteria sales processed through the general fund, and a
federal government commodities reimbursement program.
With regard to each of the four units requested by UPE, we
find that the distinguishing characteristics, taken together, are
not sufficient to establish a separate community of interest and
therefore a separate appropriate unit because the distinguishing
characteristics do not substantially distinguish the employees in
the requested unit from the other classified employees.
An appropriate negotiating unit in this case, based upon a
community of interest, is a combination of the four units in a
single unit shich we shall term an operations-support services
unit.
The primary work functons of the operations-support services
employees all involve providing a proper physical environment and
suport services for students. 	They drive and repair school and
other district equipment, prepare meals for students, and perform
janitorial, gardening and general maintenance work at the
district facilities. 	As a prerequisite to employment, they are
all required to have the equivalent to completion of the eighth
grade educational level. 	Most of these employees work "full-
time", defined by the district as four or more hours daily
employment, which entitles them to employer-paid insurance
benefits, and most work the day shift. 	Generally the school
operations-support services employees report to work at a central
locatin at a school site or the corporation yard from which they
are dispatched to various other locations for the actual
performance of their work duties. 	Except as noted above, these
employees are compensated through work duties. 	Except as noted
above, these employees are compensated through the district's
general fund.
The school operations, skilled trades and crafts, and
transportation employees have overlapping lines of supervision.
Some school operations employees are supervised by the school
Principal and Administrative Assistant and some by the Grounds
Supervisor and Administrative Assistant. 	Of the skilled trades
and crafts employees, most are supervised by the Director of
Maintenance and Administrative Assistant, while others are
supervised by the Assistant Superintendent of Transportation and
Transportation Supervisor or the Grounds Supervisor and
Administrative Assistant. 	All of the transportation employees
report to the Assistant Superintendent of Transportation and
Transportation Supervisor. 	The food service employees are

supevised by the Cafeteria Manager and Director of Food Service.
The positions of Director of Food Service, Transportation
Supervisor and Administrative Assistant, are parallel in
authority and all three report to the Business Manager who in
turn reports to the Superintendent and Board of Trustees.
The school operations, skilled trades and crafts,
transportation and food services employees have similar
characteristics relating to work function, educational
requirements, work hours, roving work location, compensation and
supervision which combine to establish to a combined unit is
appropriate.
In finding appropriate an operations-support services unit
consistng of a combination of the four units requested by UPE, we
note that several job classifications petitioned for by CSEA in
its intervention for a comprehensive unit were not included in
any request for recognition filed by UPE, yet they apper by job
title to possibly be appropriately included in the combined unit.
These are the job classifications of utilityman, delivery
driver, supply clerk-utilityman, warehouseman, instructional
materials deliveryman-technician, bus dispatcher-driver, bus
driver pep., delivery drivery- driver-utilityman, and maintenance
glazier. 	The evidence did not include job descriptions or other
information regarding community of interest factors of these
employees and we do not by this decision include themn in the
combined unit. 	They may vote subject to challenge in the
elections.
The classified employees who remain after the establishment
of the operations-support services unit are the subject of the
petition filed by CSEA for a comprehensive classified unit.
Based upon the community of interest criterion, these
employees are appropriately grouped into two negotiating units
which we shall term an instructional aides unit 7 and an office-
technical and business services unit.8 See Pittsburh Unified
7 From the employer's salary schedule, we include the
following job classifications: 	instructional aide, bilingual
aide, and community aide-adult school, totaling approximately 238
employees.
8 The following job classificatins are also from the
employer's salary schedule: 	duplicating services clerk, typist
clerk I, instructional materials clerk I, telephone o0erator,
telephone operator-typist clerk, typist clerk II, career
education clerk, instructional materials clerk II, key punch
operator, account clerk I,n data processing clerk, personnel
clerk I, school clerk-range A, school secretary I-range A, staff
secretary I, instructional materials clerk III, offset
duplicating machine operator, school clerk-range B, typist clerk
III, account clerk II, accounts payable clerk, purchasing clerk,
staff secretary II, lead key punch operator, personnel clerk II,

School District9 and Sweetwater Union High School District,
supra.
school secretaryI-range B, school secretary II, staff secretary
III, account clerk III, computer operator I, payroll bookkeeper,
duplications technician, staff secretary IV, computer operator
II, programmer, programmer analyst I, programmer analyst II,
library clerk I, library clerk fII, totaling approximately 247
employees.
In the present case, the duties of the instructional aide
employees involve assisting the certificated staff with the
supervision and training of students. 	The primary duties of
other classified employees do not involve direct interaction with
students and their education development. 	Additionally,
instructional aides are required to have an education equivalent
to the completion of the tenth grade plus some applicable
education, experience or training in the care and supervision of
children. 	Instructional aide employees are compensated by non-
district state and federal categorical funds. 	Their retention as
an employee depends upon the continuation of categorical funding.
Aides have little contact with other classified employees.
Customarily aides are assigned for a full school year to the
classroom of a particular teacher or teaching team. 	They have a
line of supervision distinct from other classified employees in
the they are directly supervised by a classroom teacher or
teachers, and ultimately by the Principal and the Business
Manger, Superintendent and Board of Trustees.
The distinguishing characteristics of the instructional aide
employees relating to work function, education and experience
requirements, compensation, lackof interaction with other
classified employees, work location, and supervision combined to
establish that a separate instructional aides unit, consisting of
the job classifications listed in footnote 7, supra, is
appropriate.
As in Sweetwater, supra, the office-technical and business
services employees constitute a separate appropriate unit based
upon a separate and distinct community of interest. 	The
functions of these employees are generally to perform clerical
and recordkeeping work. 	They are required to type, operate
business machines, maintain files and keep records. 	They are
required to have an education equivalent to the completion fo the
twelfth grade, sometimes supplemented with an associate of arts
degree in a particular subject area. 	All of these empoloyees
work in assigned offices in district facilities. 	There are
several lines of supervision for these employees. 	Generally,
they report to a person in the district office, a department
head, the Transportation Supervisor, Director of Maintenance or
Warehouse Supervisor, who each in turn reports to the Business
9 EERB Decision No. 	3, October 14, 1976.

Manager, Superintendent and Board of Trustees. 	Others report to
the school Principal who in turn reports to the Associate
Superintendent, Superintendent and Board of Trustees.
The distinguishing characteristics of the office-technical
and business services employees relating to work function,
educational requirements, work location andsupervision combine to
establish that a separate office-techjnical and business services
unit, consisting of the job classifications listed in footnote 8,
supra, is appropriate.
II
On the evidence presented in this case, the two criteria of
established practices and theefficient operation of the school
district do not alter the unit determination suggested by the
community of interest criterion.
Regarding established practices, the evidence showed that for
eight years both CSEA and UPE have represented employees in the
district. 	In the years 1973/74 through 1976/77, both 	CSEA and
UPE presented to the employer salary and other proposals which
represented all the classified employees under the authority of
the Winton Act.10 Generally these proposals related broadly to
all classified employees; however, in the 1975/76 UPE proposal,
18 of 38 items pertained to specific groups of employees.
It is the position of CSEA that the established practice of
Winton Act proposals which generally benefited all classified
employees should persuade the Board to determine that a
comprehensive classified unit is appropriate. 	As we stated in
Sweetwater, supra, where the record, as in this case, does not
indicate whether the employer required an employee organization
to represent all classified employees as a preconditin to
becoming a designated representative under the Winton Act, We
give little weight to established practices as they relate to the
composition of the unit represented under the authority of the
Winton Act.
CSEA also presented evidence that it has approximately 350 or
375 of a possible 800 members among the classified employees.
Csea apparently argues that since CSEA "has serviced the needs of
all of the various positions in the classified service", and
since CSEA has a substantial number of members, therefore a
comprehensive unit should be established. 	We find that evidence
of the number of members of an employee organization is alone not
sufficient evidence of "the extent to which...employees belong to
the same organization". 	We do not know from the raw number
whether the comprehensive unt naturally evolved in this district
or whether it was mandated by the employer's rule and regulations
relating to recognition of employee organizations under the
10 Education Code sections 13080-13090.

Winton Act. 	It was not shown whether the member employees ar
representative af a cross-section of job classifications in the
district or whether they may be concentrated in certain job
classifications. 	A concentration of employees in instructional
aide classifications, for example, could indicate support for a
separate instructional aides unit rather than a comprehensive
unit. 	Further, we do not know how many of the member employees
are managerial, supervisory or confidential employees and thus
not eligible to be included in the rank and file unit determined
by this decision. 	Therefore, in this case we do not consider the
number of employees who are members of CSEA.
The criterion of established practices does not in this case
alter the units suggested by the community of interest criterion.
III
The district presented three witnesses regarding the
criterion of 'the effect of the size of the unit on the efficient
operation of the school district." 	The Assistant Superintendent
for Personnel gave his opinion that he would be better able to
administer the provisions of the Education Code relating to
classified employees if a single classified unit is established.
The Director of Maintenance testified that in the past neither
he nor any of his employees have used release time in the Winton
Act meet and confer process. 	It was his opinion that if
"numbers" of his employees "are off on bargaining", it would be a
"hardship" on his department and he would not be able to render
the same amount of service that he has in the past. 	However, he
agreed that he has no idea of what would consititute a reasonalbe
number of employees to be released to negotiate with the
employer. 	The Principal of a junior high school stated that he
efficiently operates his school under the present rules governing
all classified employees, he fears that negotiations with
multiple units would cause him to spend much time away from his
building because he is involved with the negotiating team, and he
believes that it would be difficult for him to operate his school
if his employees took time offn from work for negotiating.
However, he had no knowledge of how many meetings it would take
to conclude agreements for one unit as opposed to multiple units.
The three district witnesses thus expressed opinions and
fears regarding the impact of multiple units as opposed to a
single unit on the efficient ioperationof the school district.
However, none of these witnesses had any experience with multiple
units. 	And no concrete facts were presented by the person in
charge of negotiations regarding projected time requirements for
district personnel dealing with negotiations matters or regarding
the projected number of employees required to be released during
working hours for negotiations with single as opposed to multiple
units. 	We know that the opinion of the district regarding the
projected efficiency of operations with multiple units or past
experience with multiple as opposed to single units.

In spite of the limited nature of the evidence regarding the
efficient operation of the school district, as the Sweetwater,
supra, we have been mindful of this criterion with regard to the
unit determination in this case. 	We conclude that in this case
the criterion of the efficient operation of the employee should
not preclude the establishment of the three units suggested by
the community of interest criterion.
Confidential Employee Issues
In Sierra Sands Unified School District,11 the Board set
forth its general commentary on Government Code section 3540.1(c)
which defines the term "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 summary, the Board's position on the
question of confidentiality is that, in nucleus of individuals to
assist the employer in its employer-employee relations. 	Further,
the employees who are designated as "confidential employees" are
not to be considered "public school employees" within the meaning
of the Act. 	Finally, the Board believes that the employer's
right to the undivided loyalty of a nucleus of staff designated
as "confidential" outweighs the inherent denial of representation
rights of those employees designated as "confidential".
The three alleged confidential employees in the present case
are the Classified Personnel Office Assistant, the Certificated
Personnel Office Assistant and the Secretrary to the Associate
Superintendent.
Classified Personnel Office Assistant
We conclude that the Classified Personnel Office Assistant is
a confidential employee. 	She is secretary to the district
administrator who serves in the dual capacities of Assistant
Superintendent of Personnel and Secretary to the Personnel
Commission. 	In her role as secretary to the Assistant
Superintendent of Personnel she has a close association with the
employer's employer-employee relations. 	She stated that for
negotiating purposes she gathers data regarding classified
employees such as number of employees and sources of funding. 	On
other occasions she see memoranda requesting other persons to
gather data for negotiating. 	She is involved in classified
employee grievances under the direction of the Assistant
Superintendent, including the typing of correspondence regarding
grievances.
On the basis of these activities, we conclude that the
Classified Personnel Office Assistant in the regular course of
her duties, has access to, or possesses information relating to,
her employer's employer-employee relations. 	"Employer-employee
11 EERB Decision No. 	2, October 14, 1976.

relations" includes, at the least, employer-employee negotiations
and the processing of employee grievances. 	This employee is
involved in both the gathering of data for negotiations and the
processing of employee grievances.
Other activities of the Classified Personnel Office Assistant
in her role as secretary to the Secretary of the Personnel
Commission are not a factor in our determination that the
Classified Personnel Office Assistant in a confidential employee.
They include secretarial, supervisory and technical personnel
work concerning the implementation of the Education Code and
district rules and regulations as they pertain to classified
personnel. 	She paprticipates in the testing procedure for
classified employees under the direction of the Assistant
Superintendent. 	She prepares examination announcements,
determines the types ofn test to be given, administers tests,
tabulates and results and establishes the employment eligibility
list. 	She also occasionally serves as an oral board member on
classified employee interview panels. 	The activities relate to
non-confidential personnel matters and not to the employer's
employer-employee relations.
In her role as secretary to the Secretary of the Personnel
Commission the Classified Personnel Office Assistant types the
minutes of the meetings of the Personnel Commission including the
minutes of occassional executive sessions. 	No evidence was
offered with regard to the confidentiality of the matters which
are the subject of the executive sessions. 	We note that among
the subjects of the executive sessions could be appeals by
permanent classified employees and commission investigations
regarding the suspension, demotin or dismissal of such employes
as authorized by Education Code section 13743 and 13744 and
Government Code section 54957. 	While in a future case we mayfind
that such matters relate to the employer's employer-employee
relations, we do not so find on the limited evidence in this
case.
Certificated Personnel Office Assistant
We conclude that the Certificated Personnel Office Assistant
is a confidential employee. 	She, like the Classified Personnel
Office Assistant, works under the immediate supervision of the
Assistant Superintendent of Personnel. 	Her duties regarding
certificated employees parallel those of the Classified Personnel
Office Assistant; however, she is not involved in the functions
of the Personnel Commission and does not work relating to
classified employees.
The Certificated Personnel Office Assistant handles data
relating to certificated employee negotiations and sometimes sees
proposals relating to such negotiations. 	She sees minutes of the
certificated negotiation meetings. 	She has gathered data
regarding the salaries of teacher substitutes, hourly and part-
time wages in other districts, and the plans of other districts

concerning salary increases.
While the duties of the Certificated Personnel Office
Assistant relate only to certificated negotiations and presumably
certificated personnel matters, her immediate supervisor has
functions relating to both certificated and classified
negotiations and personnel matters.
Even though the activities of the Certificated Personnel
Office Assistant relate only to certificated employees, we
conclude that she is a confidential employee. 	The language of
Government Code section 3540.1(c) does not distinguish between
information relating to certificated employees and information
relating to classified employees. 	The employer cannot be
expected to rigidly segregate negotiating information so that it
is applied in only one negotiating arena. 	Information or data
pertinent to one series of negotiations will often be applied in
the other series, especially in the area of the budget.
Segregation would be especially difficult in the present cas
where the same supervisor, the Assistant Superintendent of
Personnel, is responsible for overall policies in both the
certificated and classified negotiations and personnel matters.
We believe the employer has the right to expect loyalty from a
nucleus of employees in matters of employer-employee relations
without regard to whether the classified employees works with
information relating apparently only to certificated or
classified negotiations.
Secretary to the Associate Superintendent
We conclude the Secretary to the Associate Superintendent is
not a confidential employee. 	The duties of the Associate
Superintendent include instructional services, curriculum and
instructional support services. 	He has no responsibilities
relating to employee negotiations. 	He has no role in the
grievance procedure of classified employees. 	Further, he is not
involved in "any kind" of "personnel functions".
The secretary to the Associate Superintendent stated that she
has never had occasion to review any documents having to do with
proposals the district might be making to classified employees.
Sh also stated that although she has received calls from the
Superintendent's office summoning the Associate Superintendent to
caucuses of the employer's bargaining team, she has never seen
any of the material he brought back.
In view of the absence of any facts demstrating that this
employee, in the regular course of her duties, has access to, or
possesses information relating to, her employer's employer-
employee relations, we find that the Secretary to the Associate
Superintendent is not a confidential employee.
ORDER

The Educational Employment Relations Board directs that:
1. 	The following units are appropriate for the purpose of
meeting and negotiating, providing an employee organization
becomes the exclusive representative:
Operations-support services unit
Included: 	head custodian, custodian I, custodian II, matron,
substitute custodian, grounds helper, gardener, gardener foreman,
fire safety communications specialist, maintenance electrician,
maintenance plumber, equipment mechanic, maintenance carpenter,
maintenance locksmith, maintenance painter, zone building
maintenance mechanic, gardening mechanic, equipment operator,
maintenance carpenter-glazier, bus driver, substitute bus driver,
cook, baker, food service assistant I, food service assistant II,
and food service assistant I - transport.
Excluded: 	All other employees, including managerial,
supervisory and confidential employees.
Instructional aides (paraprofessional) unit
Included: 	instructional aide, bilingual aide, and community
aide-adult school.
Excluded: 	All other employees, including noon-duty
supervisors, managerial, supervisory, and confidential employees.
Office-technical and business services unit
Included: 	duplicating services clerk, typist clerk I,
instructional materials clerk I, telephone operator, telephone
operator-typist clerk, typist clerk II, career education clerk,
instructional materials clerk II, key punch operator, account
clerk I, data processing clerk, personnel clerk I, school clerk-
range A, school secretary I-range A, staff secretary I,
instructional materials clerk III, offsetduplicating machine
operator, school clerk-range B, typist clerk III, account clerk
II, accounts payable clerk, purchasing clerk, staff secretary II,
lead key punch operator, personnel clerk II, school secretary I-
range B, school secretary II, staff secretary III, account clerk
III, computer operator I, payroll bookkeeper, duplications
technician, staff secretary IV, computer operator II, programmer,
programmer analyst I, programmer analyst II, library clerk I, and
library clerk II.
Excluded: 	All other employees, including managerial,
supervisory and confidential employees.
2. 	The job classifications of utilityman, delivery driver,
supply clerk-utilityman, warehouseman, instructional materials
deliveryman-technician, bus dispatcher-driver, bus driver pep.,
delivery driver utilityman, and maintenance glazier are not

included in any unit. 	The employees in these job classifications
may vote subject to challenge in the elections.
3. 	The following employees are "confidential" within the meaning
of Section 3540.1(c) of the Act:
Classified Personnel Office Assistant
Certificated Personnel Office Assistant
4. 	The following employee is not "confidential" within the
meaning of Section 3540.1(c) of the Act:
Secretary to the Associate Superintendent
5. 	The employee organizations have the 10 workday posting period
of the Notice of Decision in which to demonstrate to the Regional
Director at least 30 percent support in the above units. 	The
Regional Director shall conduct an election in each unit at the
end of the posting period if (1) more than one employee
organization qualifies for the ballot, or (2) only one employee
organization qualifies for the ballot and the employer does not
grant voluntary recognition.
By: 	Raymond J. Gonzales, Member 	Jerilou H. Cossack, Member
Reginald Alleyne, Chairman, concurring in part, dissenting in
part.
I agree with the majority result on the appropriate units for
bargaining. 	The facts in this case do not differ materially from
those in Sweetwater Union High School District,12 where we
reached a similar conclusion on the appropriate unit issue.
Cases with similar facts must be decided in a similar manner. 	I
also agree with the majority decision that the Secretary to the
Associate Superintendent is not a confidential employee within
the meaning of the Act.
I do not agree with the conclusion of the majority that on
this record we can properly find that the Classified Personnel
Office Assistant and the Certificated Personnel Ofice Assistant
are confidential employeesn within the meaning of Government Code
Section 3540.1(c). 	Government Code Section 3540.1(j) provides
that a confidential employee is not a "public school employee",
or an "employee". 	Thus confidential employees, as defined in the
Act, along with "persons appointed by the Governor", "persons
elected by popular vote" and "management employees", are totally
removed from the Act's coverage in respect to both eligibility
12 EERB Decision No. 	4, November 23, 1976.

for inclusion in negotiating units of any kind of protection from
unfair practices as defined in Section 3543.5 of the Act.
With that, I would require a more stringent standard of proof
of a confidential status than that apparently required by my
colleagues. 	The party alleging a confidential status has the
burden of proving it with a preponderance of evidence. 	Also, I
believe that the standard proof required of the District should
be applied to determined whether a person is confidential within
the meaning of our decision in Sierra Sands Unified School
District.13 In that decision, we said:
Presumably, the Legislature denied certain
rights to confidential employees for the sole
purpose of guaranteeing orderly and equitable
progress in the development of the employer-employee
relations.
The assumption is that the employer should be
allowed a small nucleus of individuals who would
assist the employer in the development of the
employer's positions for the purposes of employer-
employee relations. 	It is further assumed that
this nucleus of individuals would be required to
keep confidential those matters that it made
public prematurely might jeopardize the employer's
ability to negotiate with employees from an equal
posture. 	(Emphasis added.)
Without question, that statement relates to the labor-
management relations activities of the parties and necessarily
limits confidential information to labor-management relations
matters. 	It does not extend confidentiality to other personnel
matters.
On reading this record, I find that the District has not
established by a preponderance of the evidence that the
Certificated Personnel Office Assistant and the Classified
Personnel Office Assistant had access to matters that "if made
public prematurely might jeopardize the employer's ability to
negotiate with employees from an equal posture."
The Classified Personnel Office Assistant
The Classified Personnel Office Assistant described her
duties as "secretarial, supervisory and technical personnel work
concerning the implementation of the Education Code and rules and
regulations as they pertain to classified personnel." 	W 	hen
asked whether she handled any materials concerning "classified
personnel salary or employee negotiations", she answered, "No".
She also testified that the District's Employee Relations Staff
13 EERB Decision No. 	2, October 14, 1976.

Representative and his Secretary handle all employee negotiations
documents. 	At the hearing in this case, the Employee Relations
Staff Representative conducted the direct examination of the
Classified Personnel Office Assistant, and he agreed with her
testimony that he and his secretary handled classified employee
negotiations.
The Classified Personnel Office Assistant testified that she
typed minutes of Personnel Commission meetings and typed
correspondence concerning employee grievances and that she
gathered data on numbers of classified employees for bargaining.
I believe that these duties do not provide Classified
Personnel Office Assistant with information that "if made public
prematurely might jeopardize the employer's ability to negotiate
with employees."
I agree with the reasoning of the majority that in this case
the role of secretary for the Secretary of the Personnel
Commission and the typing of minutes of Personnel Commission
executive sessions does not make this person a confidential
employee as defined in the Act. 	Despite that conclusion by the
majority, they also conclude that the employee's access to
information on the number of employees and how they are funded,
and the typing of grievance corespondence maker her a
confidential employee.
I think this is not consistent reasoning. 	If the Personnel
Commission matters are not confidential, I fail to see how the
collection of data on the number of classified employees and how
they are funded can possibly lead to a confidential status. 	The
number of classified employees is easily obtainable by anyone,
and once obtained by an employee organization that data could not
possibly jeopardize the District's ability to negotiate;
likewise, data on the source of classified employee funding.
This is all public information under the California Public
Disclosure Act.14 Every citizen is entitled to see it on proper
demand.
Evidence of involvement with grievances is limited to a
single statement concerning correspondence on employee
grievances. 	There was no evidence to show that the typed
correspondence dealt with anything more than routine information
on routine procedural matters; there was no testimony suggested
that the District's ability to handle grievances might be
jeopardized by the information she typed.15
14 Government Code Section 6250 et. seq.
15 The NLRB has taken the position that involvement in
grievance procedures does not make an employee confidential
within the meaning of the National Labor Relations Act. 	B.F.
Goodrich Company, 115 NLRB No. 103, 37 LRRM 1383 (1956). 	In B.F.
Goodrich Company, the NLRB limited the term "Confidential" to

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. 	I equate employer-
employee relations, as used in our Act, with labor relations, as
used in the NLRA context.
The majority opinion states: 	"She is involved in classified
employee grievances under the direction of the Assistant
Superintendent, including the typing of correspondence regarding
grievances. 	Actually, the only evidence on the record of her
involvement in grievances relates to the typing of correspondence
regarding grievances.
The Certificated Personnel Office Assistant
The Certificated Personnel Office Assistant testified that
she is a member of the California School Employees Association
and has held every elected office in the local CSEA chapter, as
well as some CSEA committee chairman positions by appointment.
She served on a CSEA salary committee and wasa chairman of that
committee for two years. 	In that capacityshe made wage proposals
to the District. 	As a member of the CSEA's negotiating team, she
signed a 1975-76 strike settlement agreement between CSEA and the
District School Board.
My colleagues find that this active member of CSEA, whose
negotiating activities for her local CSEA chapter had to be well
kmnown to the District's employee relations management personnel,
has been placed in a position giving her access to information
"that if made public prematurely might jeopardize the employer's
ability to negotiate with employees." 	I think it is most
unlikely that the District would place her in such a position.
And the evidence fails to demonstrate that she was so placed.
The Certificated Personnel Office Assistant testified that
occasionally she saw certificated employee organization proposals
but that she did not shee proposals or counterproposals of
management. 	She said that she occasionally had access to
negotiation meetings minutes, and that tshe had access to the
District budget. 	She testified further that she once gathered
data on salarites and raises in other districts; and that she
planned to gather data on the number of certificated employees
and how many of them are categorically funded.
Surely these duties do not provide the Certificated Personnel
Office Assistant with access to material which, "if made public
prematurely might jeopardize the employer's ability to
negotiate". 	All of it was either known to the employee
organization with which the District negotiated or was easily and
legitimately ascertained by an employee organization. 	The
employee organizations know of their own proposals; minutes of
negotiations would reveal nothing not known to the employee

organization participating in the negotiations; the District
budget is a public document available to any citizen; salaries
and raises in other school districts are often listed in daily
newspapers, and the data from which the total number of
certificated employees may be ascertained is available to the
general public under the California Public Disclosure Act.16
The majority decision, in making the Certificated Personnel
Assistatn a confidential employee, and, as a result, a
nonemployee under the Act, has a paradoxical consequence.
Without violating the unfair practice provisions contained in
Section 3543.5 of the Act, the District could discharge the
Certificated Personnel Office Assistant because of her prominent
role in negotiations and other activities for the CSEA. 	Given
the constitutional and other statutory protection that school and
other public employees have from arbitrary employment
discrimination, it is unlikely that this will happen. 	And
nothing in this case suggests tat the District would take that
action. 	I mention what to me is that unsettling theoretical
possiblity merely to highlight its corollary; namely, that
despite her well-known involvement in negotiations and other
activities for CSEA, she maintained the Certificated Personnel
Office position now regarding by this Board as confidential
within the meaning of the Act.17
Reginald Alleyne,
Chairman
16 Government Code Section 6250 et. seq.
17 The employer's brief contains no argument on
confidential employees.