San Diego Unified School District (PERB 0008E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SAN DIEGO UNIFIED SCHOOL DISTRICT,
Employer

and
Case No. LA-R-6

SERVICE EMPLOYEES INTERNATIONAL LA-R-167
UNION, LOCAL 102, AFL/CIO, LA-R-168
Employee Organization LA-R-169
LA-R-170
LA-R-172

CLASSIFIED EMPLOYEES ASSOCIATION
OF THE SAN DIEGO UNIFIED SCHOOL
DISTRICT AND THE SAN DIEGO
COMMUNITY COLLEGE DISTRICT,
Employee Organization

EERB Decision No. 8

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) February 18,1977
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Appearances: Ralph D. Stern, Attorney, for San Diego Unified
School District; William J. Bauer, Attorney, for Classified
Employees Association; and Bob Anderson, for Service Employees
International Union, Local 102, AFL/CIO.

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

On April 1, 1976, Service Employees International Union,
Local 102, AFL/CIO (Local 102) filed a request for recognition
with the San Diego Unified School District for a custodial unit.*

On the same day, the Classified Employees Association (CEA)
filed requests for recognition for six separate units:
educational office personnel’; professional and technical’;

* The request for recognition by Local 102 for the

custodial unit included the following job classifications:
building services supervisor IV, building services supervisor
III, stadium attendant, building services supervisor II, senior
custodian crew leader, building services supervisor I, custodian
crew leader, locker room attendant, custodian, housekeeper,
custodian helper, and classroom assistant.

* The request for recognition by CEA for the educational
office personnel unit included the following job classification:
mail clerk, account clerk IV, insurance clerk, rentals clerk,

maintenance, warehouse and transportation4; food services5;
school clerk III, head telephone operator, senior personnel
clerk, intermediate clerk, account clerk (terminal), financial
clerk III, finanical clerk II, financial clerk I, senior
accounting clerk, senior clerk, stock analysis clerk, account
clerk III, accounting clerk, braille typist,information clerk,
intermediate personnel clerk (terminal), material control clerk,
school clerk II, account clerk II, clerk II, invoice clerk,
translator typist, account clerk, I, clerk (terminal), clerk
bookkeeper, data processing clerk II, telephone operator, junior
personnel clerk (terminal), school clerk I, school library
technician I, school library technician II, school clerical
assistant, data processing clerk I, junior clerk, department
aide, resource secretary, school secretary III, secretaray III,
secretary (terminal), school secretary II, secretary II, school
secretary I, secretary I, steno clerk, legislative secretary,
school general secretary III, school general secretary II, and
school general secretary I. 	At the hearing CEA amended its
request by deleting from the unit the secretary II who works in
the security office.
3 The request for recognition by CEA for the professional
and technical employeees unit included the following job
classifications: 	budget analyst, personnel analyst III,
assistant planning engineer, associate systems
analyst/programmer, associate budget analyst, community
activities coordinator, financial analyst I, civil engineering
draftsman II, architectural draftsman III, dietician I, landscape
draftsman, senior buyer, accountant, administrative assistant I,
assistant budget analyst, personnel analyst II, assistant
property agent, architectual draftsman II, buyer, EDP programmer,
occupational therapist, systems analyst/programmer, community
services specialist I, transportation specialist, dietetic
assistant, editorial assistant, personnel analyst I,
administrative aide, human relations assistant, editorial aide,
junior accountant, budget technician, architectual draftsman I,
assistant systems analyst/programmer, civil engineering draftsman
I, elementary school assistant, publications assistant,
jprincipal duplicating equipment operator, senior computer
operator, computer operator, supervising data entry operator,
duplicating equipment operator, junior computer operator, data
entry operator, junior duplicating equipment operator, data
processing aide, duplicating aide, media systems specialist,
artist illustrator II, photographer, instructional media
cataloger, television specialist, artist illustrator I, media
technician, film service technician, library clerk, assistant
photographer, television equipment operator, elementary library
technician, graphics aide, television production aide, booking
clerk, circulation clerk, art assistant, and film inspector.
4 The request for recognition by CEA for the maintenance,
warehousing and transportation employees unit including the
following job classifications: 	bus and mail driver, cafeteria

building services;6 on classified supervisor7.
van driver, truck driver, senior stock clerk, stock clerk, truck
driver helper, assistant stock clerk, building inspector leadman,
building inspector II, building inspector I, electrician leadman,
electronic equipment leadman, equipment repair foreman,
maintenance aide, plumber leadman, steamfitter leadman,
electrician, electronic equipment technician, office equipment
repair foreman, plasterer, plumber, refrigeration mechanic,
sheetmetal worker, steamfitter, military property custodian,
carpenter leadman, equipment repairman leadman, gs repairman
leadman, glazier leadman, locksmith leadman, painter leadman,
utility foreman, inventory clerk, carpenter, cement mason,
equipment repairman, gas repairman, glaizer, heavy equipment
operator, iron worker, locksmith, painter, piano technician,
roofer, spray painter, utility leadman II(terminal), automotive
mechanic helper, office equipment repairman, skilled trades
helper, typewriter and equipment repairman, fire equipment
serviceman, ROTC assistant, utility leadman I, utility man II
(terminal), shop assistant, utility man I, classroom equipment
repairman, automotive serviceman, laborer, automotive mechanic
leadman, ironworker leadman, asphalt machine operator, equipment
repair assistant, and automotive mechanic.
5 The request for recognition by CEA for the food services
association unit included the following job classifications:
area cafeteria manager, cafeteria manager I, senior cook, cook,
pastry cook, snack bar attendant, food service worker II, and
food service worker I.
6 The request for recognition by CEA for the building
services unit included the following job classifications:
stadium attendant, senior custodian crew leader, custodian crew
leader, classroom assistant, locker room attendant, custodian,
housekeeper, custodian helper, gardener, assistant gardener,
building services supervisor I, building services supervisor II,
building services supervisor III, and building services
supervisor IV.
7 The request for recognition by CEA for the classified
supervisory employees unit included the following job
classifications: 	supervising personnel clerk, testing clerk,
supervising library clerk, maintenance clerk, bus operations
supervisor, planning engineering, assistant architect,
administrative services supervisor, computer software specialist,
EDP operations supervisor, equipment and systems supervisor,
personnel operations supervisor II, senior budget analyst, senior
systems analyst, senior systems analyst/programmer, personnel
analyst IV, food service finance supervisor, financial analyst
II, public information specialist, bus operations inspector,
senior accountant, supervising buyer, architectural draftsman IV,
personnel operaions supervisor I, internal controlssupervisor,

purhcasing operations supervisor, administrative assistant I (M.
Hubbard only), landscapt architect, supervising library
catagloger, supervising accountant, community services specialist
II, audiovisual materials distribution supervisor, data
processing control coordinator, transportation supervisor, bus
dispatcher-scheduler, stores supervisor, supervising cafeteria
van driver, inventory supervisor, food services operations
supervisor, head stock clerk, duplicating supervisor, supervising
computer operator, mechanical engineer, assistant construction
supervisor, carpentry supervisor, eletrical supervisor, garage
supervisor, grounds maintenance supervisor, heating and plumbing
supervisor, painting supervisor, supervising building inspecor,
assistant carpentry supervisor, assistant electrical supervisor,
assistant grounds maintenance supervisor, assistant heating and
plumbing supervisor, assistant painting supervisor, supervising
maintenance aide, administrative assistant II (J. Pyle and W.
Woehler only), field supervising gardener, head gardener,
cafeteria field supervisor, dietician II, cafeteria manager II,
patrol supervisor, patrol officer leadman, and landscape
engineer.
On April 19, 1976, Local 102 filed an intervention for a
maintenance unit which, as amended, includes all the job
classifications in the maintenance, warehousing and
transportation unit requested by CEA and all "gardener"
classifications in the building services unit requested by CEA.
On May 4, 1976, Local 102, filed an intervention in the same food
services unit requested by CEA.
A hearing was conducted on September 15-17, 1976, by a
hearing officer of the Educational Employment Relations Board.
ISSUES
There are three issues in this case:
1) 	What unit or units are appropriate for classified
employees in the San Diego Unified School District?
2) 	Are the following job classification "supervisory":
Area cafeteria manager,
Cafeteria manager I,
Building services supervisor III,
Building services supervisor IV,
Head gardener?
3) 	Should the CEA petition for a supervisory unit be
dismissed as violative of Government Code section
3545(b) (2) which prohibits the same employee
organization from representing both supervisory and
rank-and-file employees of the same employer?

DISCUSSION
In 1975-76, the San Diego Unified School District had an
average daily attendance of approximately 125,815 students with
88,476 in elementary school and 37,339 in high school. 	There are
164 school sites. 	The District employs approximately 4200
classified employees and 5,800 certificated employees.8
Appropriate Units
At the hearing, the district and CEA proposed a unit of all
regular classified employees other than security employees,
paraprofessional employees, management, supervisory and
confidential employees. 	Although CEA originally petitioned for
five separate units of non-supervisory employees, it modified its
positionat the hearing to favor consolidation of the five non-
supervisory units for which it orginally petitioned. 	CEA
maintained as a secondary position, however, that if the Board
finds that the board consolidated unit is not an appropriate
unit, then the five separate units and appropriate.
At the hearing, Local 102 continued to proposed the
custodial unit, maintenance unit and food services unit
previously described. 	Local 102 does not seek to represent the
educational office personnel or professional and technical
employees for which CEA petitioned.
Government Code section 3545(a) provides:
In each case where the appropriateness of the 	unit
in 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 of which such employees belong to the
same employee organization, and the effect of
the size of the unit on the efficient operation
of the school district.
Apply the statutory unit determination criteria to the facts
of this case, we find, as we did in Sweetwater Union High School
District9 and Fremont Unified School District,10 that the
following units are appropriate:
(1) 	An "office technical and business services" unit,
8 We take official notice of the Annual Apportionments
Report, California State Department of Education (July 1976).
9 EERB Decision No. 4, November 23, 1976.
10 EERB Decision No. 	6, December 16, 1976.

consisting and the job classifications in the educational office
personnel and professional and technical units proposed by CEA,
and,
(2) 	An "operations-support services" unit, consisting of the
job classification in building services (except classroom
assistants); maintenance, warehousing and transportation; and
food services units proposed by CEA, which are identical to the
classification in the custodial, maintenance and food services
units proposed by Local 102.
The petitions of CEA for a unit of educational office
personnel and a unit of professional and technical employees
include a combined total of approximately 1200 employees. 	These
clerical, secretarial, professional and technical employees
constitute a separate appropriate unit based upon a separate and
distinct community of interest. 	The clerical, secretarial,
professional, and technical employees in the San Diego Unified
School District, like the "office-technical and business
services" employees in the Sweetwater and Fremont district, have
functions, skills, and training which are distinct from the other
classified employees in the district.
While evidence was offered concerning the question of whether
gardeners should be placed in a unit of custodial or maintenance
personnel, little evidence was offered concerning the separate
community of interest of the other non-supervisory units proposed
by CEA or Local 102. 	In the absence of a showing of a separate
and distinct community of interest which would distinguish food
service, maintenance, or custodial employees from other
classified employees, we find that these other proposed units are
not separate appropriate units. 	We find in this case, as in
Sweetwater and Fremont, that because none of the other proposed
units are separately appropriate these approximately 1700
employees are properly grouped in a single negotiating unit which
we shall refer to as an "operations-support services" unit.
CEA has requested that one classification of paraprofessional
employees, classroom assistants, be included in its building
services unit. 	However, neither employee organization has
petitioned for any of the other ten job classification listed
under the heading of "paraprofessional" employees on the
district's classified salary schedule.
Classroom assistants are distinguishable from the other
classified employees CEA and Local 102 seek to represent since
they work under the supervision of a classroom teacher and their
primary functions involve dealing directly with students at the
instructional level. 	We conclude, as we did in Pittsburg Unified
School District,11 that it is not appropriate to include
paraprofessionals in a unit of other classified employees.
11 EERB Decision No. 3, Ocotober 14, 1976.

The district's Employee Relations Manager testified
concerning the criterion of "efficiency of operations". He stated
that, in his opinion, a number of small units would make it more
difficult for school principals to administer the educational
program, increase the costs of multiple fringe benefit programs,
increase the costs of administering negotiations, cause
administrative inefficiency, create jurisdictional disputes
between various bargaining units, promote instability in
employee-employer relations, and inhibit employee job mobility
and job security. 	This list of the possible adverse effects of
excessive fragmentation reflects the legitimate concerns of the
employer. 	We believe that our determination of two negotiating
units is responsive to thes concerns and strikes the proper
balance between excessive fragmentation units and the employees'
right to effective representation in appropriate units.
Evidence was offered showing that in past years both CEA and
SEIU submitted "meet and confer proposals" on behalf of all
classified employees. 	As in Sweetwater, supra, no evidence was
offered to indicate how the group of all classified employees was
selected by the employer and employee organizations as the "unit"
to be represented. 	Absent such evidence, the Board is unable to
conclude that a board unit is in fact established by past
practice as an appropriate unit for successful future
negotiating. 	Therefore, in the instant case, we give little
weight to the evidence of established practices offered by the
parties in determining appropriate negotiating units.
Supervisory Issues
Government Code section 3540.1(m) defines a supervisory
employee as follows:
Supervisory employee means any employee, regardless
of job description, having authority in the interest
of the employer to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci-
pline 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 exercisen of such
authority is not of a merely routine of clerical nature,
but requires the use of independent judgement.
This section is written in the disjunctive; therefore, an
employee need not possess all of the enumerated functions or
duties to be a supervisor. 	The possession of any one of the
enumerated duties or the effective power to recommend such action
through the use of independent judgement is sufficient to make
one a supervisor within the meaning of the Act.12
12 Ohio Power Co. v. NLRB, 176 F. wd 385, 23 LRRM 1242
(C.A. 6, 1949), cert. denied, 388 U.S. 899.

Area Cafeteria Manager
The employer and CEA, unlike Local 102, contend that the area
cafeteria managers are supervisors within the meaning of the Act.
We agree.
There are 20 area cafeteria manager. 	Each organizes and
manages a district area cluster feeding program, including the
operation of a cluster food preparation kitchen and six to eight
satellite serving kitchens. 	There are between 14 to 20 employees
at each cluster kitchen and each satellite serving facility.
Area cafeteria managers directly supervise those employed at the
satellite facilities; those employed at the cluster kitchens ar
first supervised by cafeteria manager I'm who in turn report to
an area cafeteria manager.
Area cafeteria managers have the authority to assign and
direct the work of the employees at the satellite sites and to
assign and direct, directly or through the cafeteria manager I's,
the employees to correct problems. 	Area cafeteria managers act
on their own authority to assign overtime. 	They personally
evaluate the work performance of all employees at the satellite
sites and review the evaluations prepared by the cafeteria
manager I's at the cluster kitchens. 	They resolve grievances and
complaints of employees in the cluster feeding programs. 	In at
least one instance an area cafeteria manager recommended the
transfer of an employee because of a personality conflict and the
recommendation was followed by the Food Service Director.
In view of the foregoing, we conclude that area cafeteria
managers are supervisors within the meaning of Section 3540.1(m)
of the Act.
Cafeteria Manager I
The employer and CEA, unlike Local 102, contend that the
cafeteria manager I's are supervisors within the meaning of the
Act. 	We agree.
There are 31 cafeteria manager I's; 20 serve in a cluster
food pereparation kitchen under the supervision of an area
cafeteria manager and oversee the work of 14 of 20 employees;
five serve under the direct supervision of one of two cafeteria
field supervision in an independent elementary school kitchen
staffed by four to seven employees; five serve under the direct
supervision of one of the two cafeteria field supervisors in an
independent high school kitchen staffed by 16 to 26 employees;
and one is in charge of a coffee shop.
The cafeteria manager I's assign and direct to work of
employees reporting to them. 	They prepare work schedules,
independently authorize overtime and coordinate vacation
schedules. 	They have the authority to recommend disciplinary

action; one cafeteria manager I testified that she recommended
disciplinary action to a cafeteria field supervisor and a
probationary employee was subsequently discharged in accordance
with her recommendation. 	Another testified that she had
recommended the transfer of an employee and the recommendation
was followed. 	Cafeteria manager I's have the first-line
authority to adjust employee grievances. 	Two cafeteria manager
I's testified that they had resolved employee complaints and
grievances, most frequently by revising work schedules.
Cafeteria manager I's recommend persons for promotion through
the preparation of employee work performance evaluations. 	Those
who work in the cluster kitchens prepare and submit the work
performance evaluations to the area cafeteria manager who may
make small changes. 	These recommendations are generally
followed. 	Those who work in the elementary and high school
kitchens sign and submit the evaluations directly to the
cafeteria field supervisor.
Since cafeteria manager I's possess several of the indicia of
supervisory status enumerated in Section 3540.1(m), we find them
to be supervisors within the meaning of the Act.
Building Services Supervisor III and IV
The employer, unlike CEA and Local 102, contends that
building services supervisors are supervisors within the meaning
of the Act. 	We conclude, as we did in Sweetwater, supra, that
they are supervisors.
Building services supervisor III and IV have nearly identical
duties. 	The building services supervisor III isassigned a
custodial crew of five to nine employees. 	The building services
supervisor IV is assigned 10 to 15 employees and oversees the
cleaning and maintenance of a larger plant than is overseen by
the building services supervisor III, Building services
supervisors work an 8 1/2 hour day from 6:00 or 7:00 a.m to 2:30
or 3:30 p.m.. 	Usually one custodian works the day shift,
concurrent with the building services supervisor, while the
remainder of the custodial crew works the evening shift under the
immediate direction of a crew leader who reports to the building
services supervisor. 	The evening shift is from 1:30 or 2:00 p.m.
to 10:00 or 10:30 p.m..
CEA argues that a building services supervisor may be
classified as a supervisor only if he is physically present to
observe the work as it is performed. 	We do not view physical
presence during the entire work shift as a condition precedent to
finding of supervisory status. 	One building services supervisor
testified that he spends five or six hours a day inspecting work
done by the custodians and preparing instructions for the crew
leader and custodians. 	The record discloses that building
services supervisors use various methods to communicate
instructions to the evening custodial crews. 	One building

service supervisor meets regularly with his crew leader each day
and relies on the crew leader to relay his instructions to the
remaining crew members; another meets daily with the crew leader
and the entire evening custodial staff. 	One building service
supervisor testified that he leaves specific written instructions
tio individual crew members on hooks bearing each crew member's
name. 	We conclude that each of thes methods of communicating
instructions is sufficient to constitute responsible and
effective direction of the custodial crew.
Building services supervisors prepare work schedules for crew
leaders and custodians. 	They prepare and approve overtime
schedules, approve time sheets, and prepare and sign formal work
performance evaluations of custodians and crew leaders report to
them. 	They have the authority to recommend the transfer of an
employee; two building services supervisors testified that they
have recommended to the Principal that an employee be transferred
and their recommendations were followed. 	They also have the
authority to effectively recommend that employees be dismissed.
One building services supervisor on two occasions recommended
that an employee be dismissed; his reocmmendations were followed
in both instances. 	On two occasions the same building services
supervisor recommended that an employee be suspended and his
recommendations were followed.
In our view, the judgement required of building services
supervisors in planning, scheduling, assigning, and directing the
work to be performed by custodians and crew leaders reporting to
them is not rendered routine merely because much of the work
performed by these subordinate employees is manual labor. 	The
evidence establishes that building services supervisors must
exercise independent judgement in the performance of their
duties.
We conclude that since building service supervisors possess
several of the indicia of supervisory status enumerated in
Section 3543.1(m), they are supervisors within the meaning of the
Act.
Head Gardener
CEA takes no position on this issue. 	The employer, contrary
to Local 102, contends that head gardeners are supervisors within
the meaning of the Act. 	We agree.
There are 15 head gardeners in the district, each of whom is
assigned a gardening crew of five to nine employees. 	Each crew
is responsible for eight to ten school sites.
The head gardeners independently develop work schedules for
their crews and on an ongoing basis assign crew members to
perform necessary work.
They supervise on-the-job training of crew members and direct

crew members in their performance of specific tasks. 	They expect
their instructions to be followed. 	They spend approximately two-
thirds of their time in the performance of supervisory functions
and the remaining one-third in the performance of gardening work.
They prepare and sign annual and probationary work performance
evaluations. 	One head gardener testified, when asked to
describe his duties, as follows: 	"Direct, train, evaluate, and
everything connected with it, I guess."
Head gardeners are the persons charged in the first instance
with adjusting grievances and complaints of crew members. 	Thet
are also the individuals to who administrators and teachers first
address complaints regarding the performance of gardening tasks.
The evidence establishes that head gardeners must exercise
independent judgement in the exercise of their duties.
Accordingly, since head gardeners possess several of the indicia
of supervisory status enumerated in Section 3540.1(m), we find
that they are supervisors within the meaning of the Act.
The Supervisory Unit
CEA petitions for a unit of approximately 175 supervisory
employees as well as for five units of non-supervisory employees.
The district takes the position that Government Code Section
3545(b)(2) does not permit an employee organization to
simultaneously file petitions on behalf of both supervisory and
non-supervisory employees and then subsequently elect which group
to represent. 	The district argues that the employee organization
must decide whether to seek to represent supervisory or non-
supervisory employees at the time it files any request for
recognition.
Section 3545(b)(2) states:
(b) 	In all cases:
(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
This section does not specifically mention or refer to
simultaneously filed petitions. 	However, it is clear that if CEA
becomes the exclusive representative of any of the units we find
to be appropriate, it could not become the exclusive
representative of the district's classified supervisory
employees. 	On the other hand, if CEA does not become the
exclusive representative of any of the non-sueprvisory employees
it would be entitled to represent supervisors.
In this case, after the resolution of the supervisory status
of several classifications of employees, no issues remain

regarding the supervisory unit. 	No purpose would be served by a
finding that the sueprvisory petition should be dismissed at this
time. 	Further, it would case considerable delay and
inconvenience if CEA were required to initiate a new petition for
a supervisory unit should it fail to win any of the non-
supervisory elections.
Accordingly, we conclude the CEA's simultaneously filed
petition does not contravene any section of the Act, particularly
Section 3545(b)(2), which nowhere mentions simultaneous
petitions. 	However, no election shall be conducted in the
classified supervisory unit until the results of the non-
supervisory elections are final and certification has issued. 	If
CEA is selected as the exclusive representative of any non-
supervisory classified unit, its petition for a supervisory unit
shall be dismissed. 	If CEA is not selected as the exclusive
representative of any non-supervisory classified unit, the
Regional Director shall conduct an election in the supervisory
unit in accordance with the rules and regulations of the Board.
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:
Office-technical and business services unit
Included: 	educational office personnel; professional and
technical employees.
Excluded: 	all other employees, including managerial,
supervisory, and confidential employees.
Operations-support unit
Included: 	maintenance, warehousing and transportation
employees; food services employees; building services
employees.
Excluded: 	classroom assistants and all other employees,
including managerial, supervisory, and confidential
employees.
2. 	The employee organizations have the ten workday posting
period of the Notice of Decision in which to demonstrate to
the Regional Director at least 30 percent support in the non-
supervisory units. 	The Regional Director shall conduct an
election in the non-supervisory units at the end of the
posting period if (1)more than one employee organization
qualifies for the ballot, or (2) if only one employee
organization qualified for the ballot and the employer does

not grant voluntary recognition.
3. 	The following unit is appropriate for the purpose of the
meeting and negotiating, providing an employee organization
becomes the exclusive representative:
Supervisory unit
Included: 	all classified supervisory employees,
including head gardeners, cafeteria managers I, area
cafeteria managers, building services supervisors III, and
building services supevisors IV.
Excluded: 	all other employees, including managerial and
confidential employees.
4. 	After the question of representation for all non-
supervisory units has beenfinally resolved, and if CEA is not
selected as the exclusive representative of any of the non-
supervisory units, the Regional Director shall direct an
election in the classified supervisory unit if (1) more than
one employee organization qualifies for the ballot, or (2) if
only one employee organization qualifies for the ballot and
the employer does not grant voluntary recognition.
5. 	The following employees are "supervisors" within the
meaning of Section 3540.1(m) of the Act.
Area cafeteria manager
Cafeteria manager I
Building services supervisor III
Building services supervisor IV
Head gardener
By Jerilou H. Cossack, Member 	Raymond J. Gonzales, Member
Dated: 	February 18, 1977
Reginald Alleyne, Chairman, concurring in part, dissenting in
part:
I agree that the disputed negotiating units described in the
Board's order are appropriate, that the petition for the
supervisory unit should not be dismissed, and that the area
cafeteria manager and the cafeteria manager I are supervisors
within the meaning of the act. 	I dissent from the conclusion
that the building services supervisors and the head gardeners are
supervisors within the meaning of the Act and therefore

ineligible for inclusion in the unit of nonsupervisory employees.
In this case, as in Sweetwater Unified School District,13 the
majority opinion ignores the statutory mandate that routine
leadership duties not requiring the exercise of independent
judgment are not supervisory duties within the meaning of the
Act; it relies on isolated instances of purported supervisory
duties, describes them in conclusory rather than factual terms,
and thus makes the isolated instance appear to be the common
practice; it entirely ignores a compelling fact militating
against a supervisory status; the indisputably nonsupervisory
maintenance, gardening and custodial work the head gardeners and
the building services supervisors perform.
I
Building Services Supervisors
Building services supervisors generally work from 6:30 a.m.
to 3;00 p.m. Custodians work from 2:00 p.m. to 10:00 p.m. 	The
two shifts actually overlap for only 30 minutes. 	A single
custodian known as a "day man" works the same shift as the
building services supervisor. 	A "few" building services
supervisors III work without another custodian on duty. 	The
record reflects that the relationship between the building
services supervisor and the day man is not that of supervisor-
subordinate so much as it is one of co-workers.
Building services supervisors report to a field supervisor,
who in turn is supervised by the Director of the Custodial and
Gardening Department. 	At the hearing, this is how the Custodial
and Gardening Director described the daily work of the building
services supervisors:
Q: 	Do the Building Services Supervisor IV do any
custodial work themselves during the day?
A: 	They do quite a lot of work. 	It is not scheduled in
work. 	They usually have some duties that they take on
themselves on a fairly regular basis, but, if it came to
readjusting a room, moving furniture, moving audio-visual
materials, putting up supply orders, taking supplies to
the room, setting up the cafeterias, they do these
things.
Q: 	You mentioned there is what? One Custodian, generally
at one of these sites.
A: 	For the most part, they have, at varying hours, a day
13 EERB decision No. 	4, November 23, 1976.

man.
Q: 	So, between the Building Services Supervisor IV or
III and one Custodian, any work that needs to be done is
shared between those two.
A: 	That is right.
Q: 	What about during the vacation times? 	Does the
Building Services Supervisor IV or III do any custodial
work?
A: 	They do quite a bit in the summer cleaning portion.
The first half of most summers is summer school, and then
they have a real major cleaning job. 	While they have
some work to do, they feel that it helps them, in getting
their work done and in working with their crew, and they,
quite frequently will work along with one of the crews.
Q: 	This would explain Exhibits 2 and 3, where for both
both III and the IV, the primary sentence opens with,
"Act as working supervisor?"
A: 	Yes, they are available during the day: they and that
day man. 	If there is work to be done, they do it.
The Custodial and Gardening Director who thus described the
duties of a building services supervisor, described his own
duties as follows:
To provide direct supervision for a staff of gardeners
who do the maintenance gardening for the District, and
to provide technical supervision, budget control and
management for the custodial forces of the District.
No other witness at the hearing was in a better position to
describe the general duties of building services supervisors
throughout the district.
The Custodial and Gardening Director described the
approximately one-half hour overlap of the building services
supervisors' and custodians' shifts. 	His testimony shows how
routine the building services supervisors' scheduling of
custodial work is.
Q: 	Of that half-hour, where the workers overlap, what
percentage of that half-hour is spent in supervising the
other workers?
A: 	The general practice is that they have a place where
they assemble, and that would be the time when they would
come in, hopefully a few minutes ahead of the time that
they actually have to start in their route, and they
would sit down and have a cup a coffee. 	That would be

the time before they actually hit their route that they
would talk over any problems.
Q: 	Other than talking, what else would they be doing at
that time, than haing a cup of coffee?
A: 	Before they went on their route?
Q: 	Right.
A: 	There wouldn't be anything else happening. 	The men
have a schedule that has been prepared that they have
been doing each day, and at the appropriate time, why,
they would start out their schedule.
Q: 	So basically, they work against the schedule. 	Is
that correct?
A: 	Certainly.
Q: 	That schedule is basically a routine thing. 	Is that
correct?
A: 	It is routine insofar as that man is there, and there
are no problems or changes at the site.
Q: 	But, as you indicate, there is a schedule, and it is
routine work that has to be done every day. 	Thet
basically go ahead and just do that, correct, without
somebody telling them some specific thing?
A: 	That is correct.
Q: 	I was asking about the routine work that they had to
do, and, you can tell me: 	Is it not a fact that they do
not have to exercise independent judgement on that parti-
cular day to assign work to be done?
A: 	For most days, the schedule is followed. 	The men
come in and they pick up their tools and do their
schedule.
Q: 	You could answer that question, "Yes", then--
A: 	Yes
Q: 	--that they do not have to use independent judgement.
A: 	The men do not.
***
***

Q: 	As to the actions necessary by the III or the IV,
does he have to exercise some completely independent
judgement to tell the worker what to do that day, or is
he going to follow a routine?
A: 	He is going to follow a routine.
The majority opinion does not comment on this evidence;
instead, it refutes an argument made by no one. 	The majority
opinion states:
...the work to be performed by custodians and crew
leaders reporting to them is not rendered routine
merely because much of the work performed by these
subordinate employees is manual labor.
Actually, no one has argued that manual labor is routine.
Plumbing is manual labor, but it is not routine work. 	The work
of the custodians and the limited direction they are given was
argued to be routine and is routine because the record contains
uncontradicted evidence by a district official, and by others,
that the direction and scheduling of that work, to the limited
extent that it requires scheduling and direction, is routine.
In addition to the testimony, the building services
supervisor at La Jolla High School gave testimony on the routine
nature of scheduling custodial work:
Q: 	Is the work that is done by the crew that comes in
the afternoon of a routine nature?
A: 	Generally it is a routine nature, depending on the
time of the year. 	Like at this time of the year there
are a lot of changes to be done. 	They have to work into
their schedules shifting furniture and the last part of
the year it is fairly routine.
Q: 	And the routine consists of sweeping so many
classrooms and dusting so many classrooms and this kind
of thing?
A: 	That is correct.
***
Q: 	Who makes up the schedule?
A: 	I do.
Q: 	And after it is made up doees it generally stay or it
is changed?
A: 	For several years it has stayed static. 	There was no
need of changes, but then we got cutbacks and because of

budget reductions the cutback--first I think seven
percent and then another five percent in your custodial
time was allowed. 	And then we proceeded to have to
change schedules. 	Right now since we are in the
buildingprogram getting new buildings we are having to make up
new schedules. 	If you have an established plan with no
changes, schedules can pretty well remain static for
several years.
Q: 	Year aftere year?
A: 	Yes.
The majority opinion takes out of context the testimony of
one building services supervisor, by stating:
One building services supervisor testified that he
spends five or six hours a day inspecting work done
by the custodians and preparing instructions to the
evening custodial crews.
The majority opinion then describes how building services
supervisors relay instructions in writing to their crews.
First, it makes little difference how often building services
supervisors relay instructions, if the instructions are routinely
given for routine work, if the building services supervisors have
no effective power to discipline employees who fail to perform
satisfactorily, and if the building services supervisors' powers
in that respect amount to nothing more than relaying to higher
authority a reoport on what problems exist. 	Second, the "five or
six hours a day inspecting work," as mentioned in the majority
opinion, is not five or six hours of inspection of the work
performed by custodians. 	Read as a whole, the witness' testimony
reveals that what he regards as inspection is not only the
routine work of custodians but his own individual maintenance
work as well. 	He described his duties as follows:
Q: 	When you get school ready, besides opening
the doors, what else would you be doing?
A: 	Well, in the cool times I have to check the
boilers to make sure that they are all operating.
They are supposed to be automatic, but they are
not necessarily automatic. 	Sometimes they do
malfunction. 	Turn off the alarm system. 	Turn
off the light system. 	Open the windows in the
office in the warm weather and things of that
sort.
The witness subsequently testified that he spends five or six
hours a day inspecting and talking to the crew leaders. 	But
still later, he testified:

Q: 	In some of your early morning inspection done to
check the school to see if it is secure, to see if any
vandalism has occurred or if there have been any
break-ins or anything of that nature?
A: 	That is part of it. 	I would probably find it at
that time if it has occurred, yes.
Q: 	Are you looking for that?
A: 	Yes.
If this witness had the power to do something effective about
a cusotdian's unsatisfactory performance, the cse for his
supervisory status would be enhanced. 	But he testified to the
contrary, as follows:
Q: 	You have never recommended anybody be suspended or
laid off or terminated on your crew, or have you? 	Let
me put it that way. 	Have you ever recommended that any
member of your crew when you were a III be suspended,
laid off or discharged?
A: 	Not as a Head III.
Q: 	Have you ever given a man a less than satisfactory
evaluation?
A: 	Not as Head III.
The majority opinion says that "two building services
supervisors testified that they have recommended to the Principal
that an employee be transferred and their recommendations were
followed." 	The majority opinion does not state, but the record
does demonstrate, that once in 5 years one building services
supervisor recommended one transfer to another school and that
the recommendation was followed. 	The record does not show
whether this was a disciplinary transfer or whether the employee
involved in the transfer had simply requested a transfer. 	In the
second instance, one transfer recommendation was made by one
building services supervisor, but only after building services
supervisor "talked it over with the Principal" was the matter
discussed with the Custodial and Gardening Director. 	The record
does not indicate what kind of transfer was involved.
I think that these two isolated and vague references to
transfers and the intervention of the Principal in one before it
was discussed with the Custodial and Gardening Director, hardly
demonstrate an effective power to use independent judgement in
respect to the transfer of employees.
On suspensions and dismissals, the majority opinion cites one
building services supervisor as having effectively recommended

the suspension of two employees on two occasions and the
dismissal of employees on two occasions. 	In fact, the record
contains no evidence that any building services supervisor
recommended the suspension of any employees;14 the record does
reveal that on two occasions, one building services supervisor
played a limited role in the dismissal of an employee. 	In one
instance, a teacher complained about the dismissed employee's
work, but not to the building services supervisor; the complaint
was made to an administrative assistant, who discussed the matter
with the building services supervisor; then the building services
supervisor, and the administrative assistant and the crew leader
discussed the matter with the principal. 	The building services
supervisor made out the recommendation, the principal signed it
and the employee was eventually dismissed. 	In the second
dismissal recommendation, the administrative assistant discussed
the employee's shortcomings with the building services
supervisor; the administrative assistant discussed the case with
the principal. 	The building services supervisor did not
discussed the case with the principal. 	Both the building
services supervisor and the administrative assistant signed the
"discharge statement".
I believe that in these two isolated instances, the evidence
demonstrates that the building services supervisor was little
more than one of several people looking into a charge of
unsatisfactory work and reporting it to the principal; that the
building services supervisor in neither case independently made a
recommendation for dismissal, but had to rely on the
recommendation of the administrative assistant to make an
effective recommendation to the principal, who in turn made a
recommendation to the district. 	To hold that this is evidence of
a supervisory status runs contrary to the words "independent
judgement" as used in the Act's definition of supervisor.
Further, these two isolated instances of dismissals not involving
the use of independent judgment on the part of the building
services suupervisor, should be considered with the testimony of
another building services supervisor at La Jolla High School, as
follows:
Q: 	Would you agree with the prior testimony that
generally you do not have authority to hire, transfer,
suspend or lay off or promote or discharge?
A: 	I have no authority to hire or fire, discipline or
what have you.
Q: 	Any of those things? 	You have no authority to do any
14 A building services supervisor first testified that he
recommended the suspension of employees on two occasions; then he
changed his testimony and said that he confused suspensions and
dismissals and had recommended dismissals on two occasions but
not suspensions.

of those items I mentioned?
A: 	That is right.
What really concludess the case against effective dismissal
or other disciplinary powers by the building services supervisors
is the testimony of the Wage and Salary Administrator got the
district. 	He testified that the Custodial and Gardening Director
would generally make "any recommendation as to any substantial
disciplinary action involving any custodian." 	He also testified
that the Custodial and Gardening Director's recommendation would
be based on the recommendation of the principal. 	When asked
whether the principal's recommendation was always followed by the
superintendent's office, he answered, "No". 	When asked whether
at the district level the Custodial and Gardening Director's
recommendation was always followed, he answered, "I would say a
higher percentage of time, but maybe not always then, either."
With one sweeping conclusory sentence, the majority opinion
states that the building services supervisors "prepare and
approve overtime schedules, approve time sheets and prepare and
sign formal work performance evaluations of custodians and crew
leaders reporting to them." 	The opinion does not elaborate. 	But
the record demonstrates that these duties are not performed in a
manner suggesting a supervisory status as defined in the Act.
One building services supervisor said he only evaluated 3 out
of 10 custodians. 	At that, the evaluation of employees is not,
alone, indicative of a supervisory status. 	In some cases it
might suggest the power to discipline employees. 	But not in this
case. 	Here, the Custodial and Gardening Director testified that
the performance evaluation is not a disciplinary device but a
counseling device. 	Further, the evaluation is signed not only by
the building services supervisor, but also by the principal
before it is forwarded to the Custodial and Gardening Director.
Evidence of authority to authorize overtime is not only
lacking, it is plainly contradicted by the record, which reveals
that overtime is authorized by the principal or by the Custodial
and Gardening Director in the district office. 	One building
services supervisor testified that he could only authorize
overtime in an emergency situation arising at night. 	But then he
testified that he never worked at night. 	The assignment of
authorized overtime is so routine that the custodians "sork tht
out themselves" with a rotation system.
Head Gardener
It is unnecessary to describe in detail all aspects of the
record which shows that the district did not prove the
supervisory status of head gardeners. 	A few highlights will
suffice.
First, the work of the assistant gardener, who works under

the head gardener, and the work of custodians, are transferrable,
as the following testimony by a head gardener reveals:
Q: 	You heard the custodial and gardening director's
testimony that the Assistant Gardener and the Custodian
are considered transferrable skills between those two
classes. 	Do you agree with his testimony?
A: 	I would have to say that the Assistant Gardener and
the Custodian are transferrable. 	Yes.
Q: 	And you indicated that, unfortunately, a portion of
your work does have to do with picking papers and stuff
before you can mow the lawns.
A: 	Unfortunately.
Second, it is the head gardener's field supervisor, and not
the head gardener, who effectively recommends transfers,
suspensions and disciplinary action. 	The following testimony by
a head gardener is illustrative:
Q: 	You mentioned that you recommend transfers--or, the
question was asked, and I don't know if you answered it
or not, whether or not you recommend transfer,
suspensions or disciplinary action.
A: 	No. 	In the past, I have brought up with my Field
Supervisor a point of dissatisfaction with a particular
employee, and it eventually has resulted in his being
transferred to another crew for further evaluation from
a different Head Gardener.
Q: 	Who made the decision to transfer him to another
crew?
A: 	My Field Supervisor.
Q: 	This is one of the two Field Supervisors in the
District?
A: 	Yes.
Q: 	You have never made another recommendation then, for
any member of your crew to be suspended or disciplined in
any other fashion?
A: 	No.
Third, the head gardener is required to do so much physical
work that the distric's job description requires a qualification
for the head gardener position: 	"stamina and strength sufficient
to maintain a rigorous work schedule requiring continuous and
heavy physical exertion."

In all other respects, the head gardeners' direction and
assignment of work and their evaluation of employees, is slightly
less routine, and requires virtually no more independent
judgement than that required of building services supervisors.
II
In concluding, as does the majority opinion, that building
services supervisors and head gardeners are supervisors within
the meaning of the Act, I think that the governing case law has
been improperly ignored. 	The combination of two California
Supreme Court decisions requires that we follow federal
precedents in determining how to resolve a disputed supervisory
issue.15
When the definition of supervisor was included in the NLRA by
amendment, the sponsor of the amendment stated:
Such [supervisor] are above the grade of
straw bosses, lead men, set-up men, and
other minor supervisory employees...Their
essential managerial duties are best defined
by the words 'direct responsibly', which
I am suggesting.16
This interpretation of the NLRA definition was recently cited
with approval by the United States Supreme Court.17 It has been
followed by National Labor Relations Board decisions holding that
the performance of rank and file work is a leading indicator of a
nonsupervisory status,18 and by NLRB decisions holding that
15 See Fire Fighters Union v. Cith of Vallejo, 12 Cal. 3d
608, 617, 87 LRRM 2453 (1974) and Los Angeles Metropolitan
Transit Authority v. Brotherhood of R.R. Trainmen, 54 Cal. 2d
684, 46 LRRM 3065, 3066 (1960). 	The latter case states: 	"When
legislation has been judically construed and a subsequent statute
on the same or an analogous subject is framed in the identical
language, it will ordinarily be presumed that the Legislature
intended that the language as used in the later enactment would
be given a like interpretation. 	This rule is applicable to state
statutes which are patteerned after federal statutes..."
16 93 Daily Congressional Record 4804 (May 7, 1947).
17 NLRB v. Textron, Inc., 416 U.S. 267, 85 LRRM 2945
(1974).
18 NLRB v. Swift and Company, 240 f. 2d 65, 39 LRRM 2278
(C.A. 9, 1957); Teamsters Local 626 (Quality Meat Packing
Company), 224 NLRB No. 	40, 92 LRRM 1295 (1976) (directions
involved no more than "a more experienced employee overseeing and

supervisory duties less routine than those involved in this
dispute are not supervisory duties within the meaning of the
Act.19 In rare cases, when the NLRB fails to apply in
independent judgment aspect of the definition, the federal courts
have reversed the NLRB.20
facilitating the work of less experienced employees"); Laborers
and Hod Carriers Local No. 341, 223 NLRB No. 143, 92 LRRM 1112
(1976).
III
As in Sweetwater, where I dissented on a similar issue, there
is a policy reason why the building services supervisors and the
head gardeners should not be deemed supervisors on this record.
The majority opinion may effectively deny the building services
supervisors and the head gardeners bargaining rights under the
Act. 	Here all parties agreed upon a unit of all supervisors in
the district. 	The head gardener and the building services
superisors might be represented in the unit. 	If, however, any of
the employees in the nonsupervisory unit are supervised by anyone
in the supervisory unit, the employee organization that
represents the nonsupervisory employees may not represent the
supervisory employees. 	Thus, depending upon the results of the
election and the options exercised by the employee organizations,
the head gardeners and the building services supervisors may not
be represented by anyone. 	I think there is a presumption against
this and that the employer should carry the burden of proving a
supervisory status. 	I think that burden was not met.
19 Ibid.
20 NLRB v. Dunkirk Motor Inn, 524 F. 2d 663, 90 LRRM 2961
(C.A. 2, 1975), stating in part: 	"And while [the Assistant
Housekeeper] possessed the 'aughority to order maids to take
corrective action,' that authority was sparingly exercised. 	More
frequently, Hancock would herself remedy any deficiencies which
she found... 	Furthermore, Hancock lacked the power to discipline
an individual maid 	whose performance was unsatisfactory. 	Her
sole remedy...was to relay the information to the
housekeeper...Such referral decisions hardly suggest a finding of
supervisory status."
NLRB v. Monroe Co., 	F. 2d 	, 94 LRRM 2020 (1976), holding in
part: 	"Thus, when -the Board exercises its special function of	-
applying the general provisions of the Act to the complexities of
industrial life ...and determines that an individual possesses
supervisory status, the Board's determination stands if it has
warranted in the record and a reasonable basis in the statute...
However, the Act expressly requires that the authority exercised
by the employee in question be of a non-routine nature."

Reginald Alleyne, Chairman