Oakland Unified School District (PERB 0050E)

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STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
OAKLAND UNIFIED 	SCHOOL DISTRICT,
Employer,
and
TEAMSTERS UNION, 	Local 853,
PUBLIC 	EMPLOYEES DIVISION, 	I.B.T.,
Employee 	Organization,
and
CHILDREN'S CENTER EMPLOYEES UNION, 	Local 	2,
Employee 	Organization,
and
OAKLAND 	SCHOOL EMPLOYEES 	ASSOCIATION,
Employee 	Organization,
and
OAKLAND, 	CALIFORNIA UNIFIED 	SCHOOL EMPLOYEES
UNION, Local 257, AFSCME, AFL-CIO,
Employee 	Organization,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES 	ASSOCIATION
OAKLAND 	CHAPTER #1,
Employee 	Organization,
and
OAKLAND 	PUBLIC 	SCHOOLS 	PEACE 	OFFICERS
ASSOCIATION,
Employee 	Organization,
and
UNITED TEACHERS 	OF 	OAKLAND,
AFT Local 	771, 	AFL-CIO
Employee 	Organization,
and
AFSCME, 	Local 2078, 	Oakland Unified School
District 	Cafeteria 	Employees 	Union,
Employee 	Organization.
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) 	Case Nos. 	SF-R-120
SF-R-258
SF-R-273
CONSOLIDATE
----D 	DECISION
PERB Decision No. 	50
April 14, 	1978
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Appearances; 	William E. Brown, Attorney (Brown and Conradi) for Oakland Unified
School District, John Allen for Oakland Public School District Peace Officers
Association, Robert J. Bezemek, Attorney (Van Bourg, Allen, Weinberg 	& Roger)
for United Teachers of Oakland/Aft Local 771, AFL-CIO; V. Roy Lefcourt, Attorney,
for Children's Center Employees Union, Local 2; Tom Sinclair, Attorney, for
Oakland School Employees Association; Arthur Levine, Attorney, for California
School Employees Association, Oakland Chapter #1; Hirsch Adell, Attorney (Reich,
Adell, and Crost) for Oakland, California Unified School Employees Union, Local
257, AFSCME, AFL-CIO.
Before Harry Gluck, Chairperson; Gonzales and Cossack Twohey, Members.
This case is before the Public Employment Relations Board on exceptions
filed by Oakland Unified School District (District), Oakland School Employees
Association (OSEA), and Oakland, California Unified School Employees Union,
1Local 257, AFSCME, AFL-CIO (AFSCME). 	OSEA and the District except to the
hearing officer's conclusion that children's center paraprofessional instructional
assistants constitute a separate appropriate unit. 	AFSCME excepts to the hearing
officer's conclusion that supervising custodians II through V are supervisors.
We sustain the hearing officer's conclusion that children's center para-
professional instructional assistants constitute a separate appropriate unit.
We reverse the hearing officer and find that supervising custodians II through V
are not supervisors within the meaning of the, EERA and are, therefore, 	included
in the stipulated building and grounds unit.
I
Both the District and OSEA except to the hearing officer's finding of
a separate unit of children's centers paraprofessionals appropriate based in
any way on distinctions between the regular school program and the children's
center program. 	We find no merit in this contention.
In finding appropriate a separate unit of children's center paraprofessional
instructional assistants, we have neither abandoned nor subordinated the importance
of job function in determining appropriate negotiating units. 	However, job func-
tion cannot be divorced from program intent in determining community of interest
between and among employees. 	It is axiomatic 	that the purpose of the program
1 Building and Construction Trades Council of Alameda withdrew its excep-
tions in Case No. SF-R-347. 	Accordingly, the Executive Assistant to the Board
issued a Decision with respect to that case on September 12, 	1977 pursuant to
which the District granted voluntary recognition on October 20, 	1977 in the
unit found appropriate by the hearing officer.
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dictates in large measure job content 2/.
In the instant case, major differences in the program goals of K through
12 schools and children's centers have resulted in substantially distinct job
functions, supervision, hours of work, work years, work locations, hiring
practices and certain fringe benefits, among other things. 	Cumulatively,
these differences require a unit of children's center instructional assistants
separate from K through 12 instructional assistants.
While the same job description is used to define both groups of parapro-
fessionals, 	children's center paraprofessionals perform only part of two of
the 13 enumerated duties contained in the common job description: 	they work
with the students individually or in small groups and supervise students at
lunch or on the school grounds. 	Since there is no formal curriculum or
instructional program, lesson plans or tests in the children's centers, with
the exception of Martin Luther King center, 	children's center paraprofessionals
obviously have no 	duties with respect to these matters.
The lines of supervision of children's center paraprofessionals are
entirely separate from those of K through 12 paraprofessionals 3/. Children's
center paraprofessionals are supervised by the children's center head teacher
and then the associate superintendent for support services; K through 12
paraprofessionals are supervised by the school principal and then the area
superintendent.
2/Member Cossack Twohey notes that the Board has consistently weighed
the relationship between job function and program intent when determining
appropriate negotiating units. 	Thus, 	in Grossmont Union High School District,
EERB Decision No. 11, 1 PERC 67 (March 9, 1977), a majority, finding that
pupil services employees should be included in an over-all certificated unit,
said
...teachers and the four disputed classifications share
common purposes and goals in their mutual interaction
with each other and the community they serve. 	(p. 	7)
In Los Rios Community College District, EERB Decision No. 18, 1 PERC
185 (June 9, 1977), a majority, finding that part-time instructors should be
included in the same unit as regular full-time instructors, 	stated
The responsibility of both full- and part-time instructors
is primarily teaching assigned classes. 	(p. 6)
3Member Cossack Twohey notes that in Grossmont, supra., unlike the
instant case, a majority of the Board concluded that all but three of the
disputed classifications were supervised by a school principal who also
supervised all other school certificated employees.
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Children's center paraprofessionals have different hours,4 work yearss
and work locations 6 than K through 12 paraprofessionals. 	Those paraprofessionals
employed in the children's centers work daily in two separate shifts, while
those employed in K through 12 schools do not. 	Those in the children's centers
work 12 months a year, while those in the K through 12 schools work 10 months
a year. 	Children's centers are geographically distinct from the regular schools.
Thus, while all but six of the children's centers are adjacent to the regular
schools, children's center paraprofessionals have little, if any, work-related
7contact with K through 12 personnel. 	There is little transfer of paraprofessionals
between the children's centers and regular schools.
Even though the minimum qualifications of both groups of paraprofessionals
are the same, 	those employed at the children's center are hired and evaluated
by the head teacher, while those employed at K through 12 schools are hired
by the principal and faculty 8/. In addition, 	children's centers are required
to employ substitute paraprofessionals when a regular employee is absent; no
such requirement exists in the K through 12 program.
Children's center paraprofessionals receive paid vacation based on length
of time employed; K through 12 paraprofessionals do not. 	Only children's center
4/ Member Cossack Twohey notes that in Grossmont, supra., unlike the instant
case, 	the disputed employees worked the same basic day but 15 minutes longer
each day than other certificated employees.
sMember Cossack Twohey notes that in Grossmont, supra., unlike the
instant case, 	the disputed employees worked the same basic year, although
between 6 and 10 days more each year, as other certificated employees.
6 Member Cossack Twohey notes that in Grossmont, 	supra., unlike the instant
case, all but three of the disputed employees worked at the same school site as
other certificated employees.
7Cf. Grossmont, supra.
u 8/ Member Cossack Twohey notes that in Grossmont, supra., unlike the instant
case, 	school principals had a determinative voice in hiring both those in the
disputed classifications and other on-site certificated employees.
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paraprofessionals are eligible for Social Security coverage. 	Finally, due to
separate funding sources, 	children's center personnel are not permitted to
share materials with K through 12 personnel.
Accordingly, we conclude that a separate unit of children's center
paraprofessionals is appropriate.
II
We agree with AFSCME that the supervising custodians II through V here,
9
unlike the head custodians in Sweetwater Union High School District 	and the
10
building services supervisors in San Diego Unified School District, 	are not
supervisors within the meaning of the EERA.
Section 3540.l(m) of the EERA defines supervisors as
...any employee, regardless of job description,
having authority in the interest of the employer
to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline
other employees, or the responsibility to assign
work to and direct them, or to adjust their
grievances, 	or effectively recommend such action,
if, 	in connection with the foregoing functions,
the exercise of such authority is not of a merely
routine or clerical nature, but requires the use
of independent judgment.
The Board, 	in its first two cases applying this section to classified employees,
Sweetwater and San Diego, 	concluded that head custodians and building service
supervisors, 	respectively, were supervisors within the meaning of the EERA.
In Sweetwater, head custodians were intimately involved in hiring; they
interviewed applicants and their recommendations were followed 99 percent of
the time. 	They prepared custodian work schedules at the beginning of each
regular school year, which were rarely if ever altered, and independently
altered regular assignments to assign specific tasks for special events. 	In
addition, 	each morning the head custodians inspected the work and specifically
directed correction of any deficiencies. 	Finally, 	during the summer session,
they assigned and directed work on a daily basis.
In San Diego, building service supervisors prepared work schedules, daily
inspected the work performed and instructed the correction of deficiencies.
9EERB Decision No. 4, 1 PERC 10 (November 23, 1976).
10 EERB Decision No. 8, 1 PERC 33 (February 18, 1977).
-5-

They prepared and approved overtime schedules, approved time sheets, and pre-
pared and signed formal evaluations. 	In addition, building service supervisors
recommended transfers, dismissals and suspensions; their recommendations were
followed.
In the instant case, supervising custodians II through V play no part
in the hiring process. 	Nor do they play any part in the transfer, lay off,
recall or promotion of employees; by District policy and practice, 	seniority
governs in each of these matters.
The acting director of building operations testified that he knew of no
circumstance where a supervising custodian had recommended discharge or
suspension of an employee. 	The one employee who testified, a supervising
custodian V, 	stated that he had recommended that the principal terminate an
employee once in his sixteen years as a supervising custodian.11
11
Q. 	Mr. Cordano, have you ever recommended that a custodian be
discharged?
A. 	Yes, I have, via the principal's office. 	I explain the
situation and I have to have his blessing before I go any
further. 	When we send a written form down to Mr. Pickens'
[acting director of building operations] office, we keep one
on 	file, but the principal's signature is on it.
******
Q. 	Are you testifying to only one instance where you've done
this? 	That is, made this kind of recommendation?
A. 	Yeah. 	I can recall three or four years ago I had what
you call a hard core person. 	The first hard core employee
I've ever had. 	And he proved to be just what he was called.
After we'd given him six months or so, he was found up here
and he was found up there and I went to the principal and
said, 	"I think we've given him enough chance. 	We'd better
go through with"—not recommending firing him, but getting
him out of Skyline High School.
We did this through channels, with the principal initiating
this, with his signature. 	Every once in a while I put mine down
and mine don't mean anything up against the principal's. 	And
they, after a certain amount of time, I would say about two
weeks after that letter—we'd already, by the way, sent
three letters before that—they started to move and they fired
this employee.
-6-

One isolated instance of arguable exercise of one of the indicia of supervisory
status does not warrant a conclusion that supervising custodians actually
effectively recommend discharge of employees, particularly where, as here,
the testimony indicates that on other occasions the same witness had made
recommendations to the principal which were not followed. 	Other testimony
indicates that this one instance was the exception rather than the rule.
The acting director of building operations testified that only he was
authorized to give verbal warnings and only his superior, 	the business manager,
was authorized to suspend employees.
With respect to the authority of supervising custodians to assign work
to and direct employees, 	the supervising custodian V testified that he prepares
work schedules, which must be approved by the principal. 	The principal sometimes
questions certain assignments, although he has not reversed any assignments. 	In
fact, those custodians who work days report directly to their work area; those
who work nights report to the supervising custodian's office where the super-
vising custodian tells the assistant head custodian of any special requests
by the principal. 	The assistant head custodian, not the supervising custodian,
decides who on the evening crew will perform the special assignments. 	There
was no evidence that the supervising custodians here regularly inspect work
performed and direct correction of deficiencies. 	They have no independent
authority to authorize overtime, nor do they sign custodian time sheets.
With respect to the adjustment of grievances, the record establishes that
supervising custodians are not involved in the resolution of written grievances.
Rather, both the acting director of building operations and the one testifying
supervising custodian described their involvement in grievances as "problem
solving." 	In fact, in recent years supervising custodians have, on behalf of
AFSCME, 	represented custodians in processing written grievances.
With respect to the evaluation of employees, 	the record discloses that
12
there are four types of evaluations: 	probationary, annual, 	promotional and
12
The transcript describes this as "manual"; however, in the context of
the discussion it is clear that the parties are discussing annual evaluations.
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13
change in site administrators. 	Supervising custodians are only involved in
probationary and annual evaluations. 	Each new employee receives three evalua-
tions during the six month probationary period. 	Since new employees are always
assigned a split shift at two different schools, two supervising custodians
prepare and sign each evaluation. 	The evaluations are also signed by either
a field supervisor or an assistant custodial operations supervisor and by the
director of building operations. 	These probationary evaluations, according
to a supervising custodian, are
...presented in total form to the employee to show his
progress or his shortcomings or whatever at the end of
the period. 	And then the director [of building operations]
signs it as a total example or illustration of knowing what
the problem is or what's going on.
They are then signed by the employee. 	The annual evaluations are prepared by
the supervising custodian and sent to the school principal. 	According to the
acting director of building operations,
...in a lot of cases [the principal] calls the custodian
in and at least discusses[.] 	[T]o what extent he involves
the supervising custodian in making out the...appraisal, I
couldn't tell you. 	Some are a lot more involved than others.
I'm talking about the 	[principal] now.
The supervising custodians' participation in the evaluation process is
hardly independent. 	Nor is there any evidence that the evaluations provide
them with any authority, routine or otherwise, to meaningfully reward excellent
employees or effectively reprimand substandard employees.
Since supervising 	custodians possess none of the indicia of supervisory
status, we conclude that they are employees and should be included in the
negotiating unit.
ORDER
The following units are appropriate for the purpose of meeting and
negotiating provided an employee organization is selected as the exclusive
representative:
13 The record is silent regarding the meaning of this type of evaluation.
A common sense explanation would be that it is an evaluation which occurs
when there is a new school principal.
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Parapro f essional Unit: 	Including all 	regular 	school 	instructional assis -
tants, 	community assistants and health assistants. 	Excluding children's center
instructional assistants, 	substitutes, 	management employees, 	supervisory
employees and confidential employees.
Children's Center Paraprofessional Unit: 	Including all 	children's center
instructional assistants. 	Excluding substitutes, 	management employees, 	super -
visory employees and confidential employees.
Custod i al and Bui l dings and Grounds Unit: 	Including all custodial and
buildings and grounds employees, 	including assistant 	supervising custodians
and supervising custodians 	I 	through V. 	Excluding all other employees,
management employees, 	supervisory employees and confidential employees .
Within 10 workdays a f ter the employer posts the Notice of Decision, 	the
employee organization shall demonstrate to the Regional Director at 	least 	30
percent 	support 	in the custodial unit 	stipulated 	to be appropriate by the
parties.
The Regional Director shall 	conduct an election 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 qualifies 	for the ballot and the
employer does not grant voluntary recognition. 	Voluntary
recognition requires majority proof of 	support 	in all 	cases. 	See
Sections 3544 and 3544.1.
The date used to establish the number of 	employees 	in the above units 	shall be
the date of 	this decision unless another date 	is deemed appropriate by the
Regional Director and noticed to the parties . 	In the event another date 	is
. 	. 	.
selected, 	the __ Re~ional Director may extend the time 	for employee organiz~tions
to demonstrate at least 30 percent 	support 	in the units.
By: 	Jerilou Cossack Twohey, 	Member
, ,
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Harry Gluck, 	Chairperson, 	concurring:
I 	did not participate 	in deliberations 	or 	the decision concerning the

e sta bli s hment of 	th e 	c hildren 's 	ce nt er p ar a pr of ess io n al 	unit . 	I 	did p a rti c ip a te
in a ll 	o th er as p ec ts 	and concur 	in the 	re aso nin g and d ec isio n 	re ached by
J\tfmm· Cossack T wohey.
'I 	I
Ha1~y Gluck, 	C hairperson
Rayrn.cnd 	J. 	Gonz a le s, 	di ss entin g 	in p a rt :
I 	di ss ent 	from 	the 	majority' s 	c onclu s ion 	th a t 	s uper v 1s 1n g
c u s todi a n s 	I I , 	I I I , 	IV 	and V 	are not 	s uper v i s ory 	employee s .
I 	w ould 	a ffirm 	the 	he a rin g 	officer' s 	findin g, 	b as ed 	on 	the
1
Bo a rd' s 	precedent s 	of 	Sw eetwater 	Union 	High 	School 	Di s trict
and 	S an 	Dieg o 	Unified_ S ch?ol_Di s trict 2 th a t 	the s e 	employee s 	are
s uper v i s or s.
The 	Bo a rd, 	m 	S weetwater , 	S an Dieg o 	and numerous 	s ub s equent
3
c a s e s, 	h as 	held 	that 	the 	po ss e ss ion 	of 	any 	one 	of 	the 	authoritie s
1:EERB Deci s ion No. 	4, 	Novei:nber 	2 3, 	19 7 6 .
2EERB Deci s ion No . 	8, 	Feb1u a ry 	1 8, 	19 77.
3 See , for 	example, 	Foothill-De Anza, 	EERB Decision No. 	10,
March 	1 , 	1977 	and Sacramento Cit y 	Unified School District ,
EERB Decision No. 	30A , 	October 19, 	1977.
- 1 0-

listed in Government Code Section 3540.l(m) 	is 	sufficient 	to make
an employee 	a supervisor within the meaning of that section of
the Educational Employment Relations Act. 	In the present case,
the 	supervising 	custodians 	II 	through V have 	several of the 	listed
authorities, 	including 	the 	authority 	to assign and direct 	the work
of other custodians, 	to adjust informal grievances 	of other
custodians 	and to recommend them for an opening on a more 	desirable
shift. 	Generally, 	the only distinction among the supervising
custodians 	II, 	III, 	IV and V is 	the level of school at which they
work and the number of employees 	they supervise. 	Based upon 	these
facts 	and the Board precedents 	cited above, 	I find, 	as 	did the
hearing officer, 	that 	the supervising custodians 	II 	through V are
supervisory employees.
In all 	cases 	coming before the Board, 	it is my policy to
thoroughly review the facts. 	However, 	there are issues 	such as
those 	presented by 	the 	supervisory 	question and others where 	the
facts 	of a given case 	are not 	the 	only 	compelling elements 	upon
which 	to base a decision. 	Questions 	of significant policy
considerations 	have been and will 	continue 	to be 	of great 	importance
-11-

In my previous 	dissent 	in 	San Rafael 	City High 	School 	District,4
I 	expressed my 	concern about 	the 	Board's 	failure 	to 	reasonably 	deal
with 	the 	supervisory issues 	coming before 	it. 	I 	indicated that
"for this 	Board to 	continue 	'flip-flopping' 	as 	it has 	done 	on the
supervisory 	issue 	can 	only 	lead 	to 	continued confusion by 	the
parties." 	I am afraid that 	the Board is 	still wrestling with 	the
supervisory issue 	and is no 	firmer in its 	position than at 	the 	time
the 	San Rafael case came before us.
In the present 	case, 	the majority once again relies on whether
or not 	the 	record was 	"clear" 	and such 	conclusory 	and unsupported
statements 	as: 	"The supervisory custodians' 	participation in the
evaluation process 	is hardly independent" 	to reach the 	decision that
supervising 	custodians 	II 	through V are not supervisory. 	The
weakness 	of 	such 	conclusory 	statements 	and the 	constant 	reference
to 	"unclear records" and "unsupported statements" by 	the witnesses
have 	left us 	in 	the quagmire of 	confusing and directionless 	decisions
in supervisory questions.
Not wanting 	to mislead the parties 	as 	to my own 	firm convictions
on 	the 	supervisory 	issues 	arising 	from 	the 	language 	of 	the
Educational Employment Relations Act 	("EERA"), 	I feel I must
make 	a definitive statement 	in 	this 	dissent as 	to why 	I 	lean
very heavily 	in 	favor 	of 	establishing minimal 	requirements
within 	the 	language 	of 	the 	statute 	for 	the 	qualification of 	an
individual as 	a supervisor.
4EERB Decision No. 	32, October 3, 	19 77
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I must 	state here 	that 	in my 	opinion 	the 	supervisory
question in 	this 	and every case 	that has 	or will 	come 	to 	the
Board is 	one of basic educational philosophy, 	not merely a simple
question of labor relations. 	I believe it is 	to 	the benefit of
the taxpayers, 	educators, 	and most especially students, 	that a
significantly 	constituted unit 	of 	supervisory 	employees 	exists
in nearly every school 	district 	in 	the 	state whose 	size makes 	it
feasible. 	Such units will 	tend to 	assure 	the 	continued operation
of a school 	district 	in 	the 	event 	of a strike by 	the non-
supervisory employees. 	Further, such units will assure the 	.
supervisory employees 	that 	they have 	the 	full 	exercise 	of 	their
rights 	under 	the 	EERA 	through 	sufficient 	strength 	of numbers.
Under 	the National Labor Relations Act, 	as 	amended,5 which
regulates 	private sector collective bargaining, 	supervisors 	are
excluded from the 	definition of 	"employee" 	and 	therefore have no
bargaining 	rights.6 Because bargaining 	rights 	are 	denied
supervisors, 	employees 	under 	the NLRA are not 	lightly 	declared
supervisory 	and 	are 	therefore 	relatively 	few 	in number 	compared
to 	the nonsupervisory employees.
Because 	supervisors 	are not 	totally 	aligned with management,
it has been suggested that 	they, 	as well as 	the nonsupervisory
employees, 	should have negotiating rights. 	However, 	supervisors
also 	are not 	totally 	aligned with 	the 	employees 	they 	supervise.
529 	U.S.C. 	Section 151 et seq.
629 U.S.C. 	Section 152(3).
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This 	divided 	loyalty 	is 	acknowledged 	in 	the 	only 	legislative
history 	available 	on 	the 	EERA, 	the Final Report 	of 	the Assembly
Advisory Council 	on Public Employee 	Relations, 	issued on March 	15,
1973, 	in 	anticipation of 	a 	comprehensive 	collective bargaining
bill 	authored by 	then 	Speaker of 	the Assembly, 	Bob Moretti:
The 	chief 	argument 	of 	those who, 	although
advocating 	that 	supervisors 	be 	given 	the
statutory 	right 	to 	bargain 	collectively,
oppose 	allowing 	them either 	to 	be 	included
in 	a bargaining unit with nonsupervisory
employees, 	or 	to be represented by an
organization 	that 	also 	represents
nonsupervisory employees, 	is 	that when 	the
two 	groups 	are 	represented by 	the 	same
organization, 	an 	inevitable 	and irrecon-
cilable 	conflict 	of 	interest 	is 	created.
They 	contend 	that 	the 	supervisors' 	loyalty
thereby 	becomes 	divided between 	management
and 	the 	organization 	representing 	the
nonsupervisory employees 	(at p. 	95).
Were 	the Legislature 	to 	deny negotiating 	rights 	to 	supervisors
under 	the 	EERA, 	large units 	of nonsupervisory 	employees would be
created with 	few supervisors 	excepted, 	as 	under 	the 	NLRA. 	In 	the
event 	of 	a 	strike 	or 	other 	concerted activity, 	few 	employees would
remain 	to keep 	open the 	schools. 	Thus, 	I believe 	that 	the strong
policy 	reason underlying 	the 	Legislature's 	choice 	in 	establishing
supervisory units 	is 	that 	the Legislature wished 	to 	assure 	that 	in
the 	public 	sector 	the 	community 	at 	large would have 	some 	guarantee
that no 	single 	employee 	organization 	could 	exercise 	such 	power 	as
to virtually 	shut 	down 	an 	institution by means 	of 	a 	strike 	or 	other
concerted 	activity.'
7This 	opinion 	is 	not 	intended to 	address 	the 	question of 	the
legality 	or 	illegality 	of 	strikes.
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In an obvious 	decision 	to 	guarantee 	the 	integrity and
independence of 	the 	supervisory unit, 	the Legislature 	declared
in Government Code Section 3545(b)(2) 	that, 	"A negotiating unit
of supervisory 	employees 	... 	shall not be 	represented by 	the
same 	employee 	organization 	as 	employees whom the 	supervisory
employees 	supervise." 	Of course, 	there 	is no guarantee 	that
both units might not choose 	similar drastic action. 	This
probability, 	however, 	is much less 	likely when the 	two units
are 	separate 	and independent.
If a school 	district is 	to be protected from the possible
concerted activity of its nonsupervisory employees, 	then, 	the
unit of supervisors must be 	composed of more 	than a 	few
individuals. 	But it is 	also 	true 	that supervisors will 	in
practical effect have 	few rights 	under 	the EERA, if they do not
have 	sufficient numbers 	to negotiate 	effectively. 	If 	too 	small
in size, 	the employee organization representing the 	supervisory
unit may attempt 	to 	align 	itself with 	the 	employee 	organization
representing 	the nonsupervisory unit. 	Or 	the 	supervisory unit
might simply be 	incapable of exercising any influence. 	Thus,
the Legislature must have 	intended 	that 	supervisory units 	be
viable 	entities, 	with membership 	substantial 	enough 	to 	assure
themselves 	an effective voice 	in 	the negotiating process.
The 	language 	of 	the 	EERA 	allows 	the 	establishment of
supervisory units 	of viable 	size. 	Although 	the 	definition of
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"supervisor" under 	the 	EERA8 is 	nearly 	the 	same 	as 	under 	the
n
NLRA,9 the 	NLRA precedent 	on 	supervisors 	cannot be 	strictly
followed. 	Since 	supervisory units 	are 	authorized under 	the
EERA, 	the 	language 	of 	the 	EERA 	should be more broadly 	construed
to 	find more 	employees 	supervisory 	as 	compared 	to 	the 	NLRA. 	Such
broad construction 	is 	easily 	supported by 	the 	facts 	regarding 	the
supervisory hierarchy 	in 	the 	schools. 	Authority 	is more 	disbursed
vertically. 	As 	the 	Board stated 	in 	Sweetwater Union High School
District, EERB Decision No. 	4, November 23, 	19 76:
This 	statutory 	scheme 	recognizes 	that 	public 	and
private 	sector 	supervisors 	differ 	in 	the nature
of 	the 	authority 	they possess. 	In 	the public
school 	districts, 	decisions 	regarding hiring,
firing, 	discipline 	and salaries 	of employees 	are
generally 	ultimately 	reserved 	for 	decision-makers
far 	removed from 	the 	employee's 	immediate 	super-
vision. 	This 	type 	of authority 	and 	the 	different
California 	statutory 	scheme 	lend 	themselves 	to 	a
broader 	construction 	of 	the 	definition 	of 	super-
visor 	contained 	in 	the Act 	(at 	p.13).
u 8Government Code 	Section 3540.l(m): 	"Supervisory employee" means
any employee, 	regardless 	of job 	description, 	having authority
in the 	interest of the employer to hire, 	transfer, 	suspend, 	lay
off, 	recall, promote, 	discharge, 	assign, 	reward, or discipline
other employees, 	or the responsibility 	to assign work 	to 	and
direct 	them, 	or to adjust 	their grievances, 	or effectively
recommend such action, 	if, 	in 	connection with 	the 	foregoing
functions, 	the 	exercise 	of such 	authority is not 	of a merely
routine 	or 	clerical nature, 	but requires 	the use of independent
judgment.
929 U.S.C. Section 	152(11): 	The 	term "supervisor" means 	any
individual having authority, 	in 	the 	interest of 	the 	employer,
to hire, 	transfer, 	suspend, 	lay off, recall, promote, 	discharge,
assign, 	reward, 	or discipline other employees, 	or responsibly
to 	direct 	them, 	or 	to adjust 	their grievances, 	or effectively 	to
recommend such action, 	if 	in 	connection with 	the 	foregoing 	the
exercise 	of such 	authority 	is 	not 	of 	a merely 	routine 	or 	clerical
nature, 	but requires 	the use 	of independent judgment.
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Acknowledging 	the need 	for 	diffusion 	of power 	and 	a
large 	supervisory unit, 	the 	Board 	in Sweetwater 	employed 	the
test 	that, 	"The performance 	of any one 	of 	the 	enumerated actions
[in 	Section 	3540.l(m)] 	or 	the 	effective 	power 	to 	recommend such
action 	is 	sufficient 	to make 	one 	a supervisor within 	the meaning
of the Act."
In 	conclusion, 	it 	is 	because 	of 	the 	right of 	the public 	to
the 	educational 	services 	of 	the 	schools, 	guaranteed by 	the
California 	State 	Constitution, 	that 	the 	creation 	of 	substantial
and viable 	supervisory units 	in 	school 	districts 	is 	a 	desirable
goal. 	Article 	IX, 	Section 1 of the Constitution, 	on education,
in essence 	provides 	a mandate 	that 	the 	public 	schools 	shall
remain 	operative 	and provide 	an 	education 	to 	the 	children 	in 	the
state :
A 	general 	diffusion 	of knowledge 	and 	intelligence
being essential 	to 	the 	preservation of 	the 	rights
and liberties 	of 	the people, 	the Legislature
shall 	encourage by 	all 	suitable means 	the 	promotion
of intellectual, 	scientific, 	moral, 	and agricultural
improvement.
It 	is my belief 	that 	the Legislature 	recognized 	this, 	the 	school
boards 	recognized 	this, 	and 	the 	professional 	employee 	organizations
recognized 	this 	when 	the 	creation 	of 	supervisory units 	was 	negotiated
in 	the 	legislative 	process. 	The unique 	departure 	from the 	NLRA 	in
California 	is 	proof 	that 	this 	significant 	interest was 	at play
when 	the 	collective 	negotiating process 	was 	brought 	into 	the 	public
sector. 	The 	existence 	of 	independent 	and viable 	nonsupervisory
and 	supervisory units 	in 	the 	public 	sector 	is 	the best 	safeguard
contained 	in 	the 	EERA 	against 	disruption 	of 	the 	educational 	process
of a school 	district. 	If we hope 	to 	ensure 	a minimum of 	disruption
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in 	the 	school 	district 	in 	this 	particular 	case 	and 	indeed 	in
the 	entire ·system of 	education 	throughout 	the 	state, 	then 	this
Board must 	realize 	that 	it 	is 	not 	dealing 	only with 	simple
questions 	of 	employer-employee 	relations 	such 	as 	are 	found 	in
the 	private 	sector . 	Rather, 	it must 	recognize 	that 	there 	is 	a
greater 	social 	good 	that 	it must 	respond 	to. 	Consequently, 	it
is 	my belief 	that 	the 	existence 	of 	separate 	supervisory units
with 	significant 	membership 	is 	a 	necessity 	in most 	school
districts 	for 	the 	continued 	peaceful 	and 	uninterrupted 	educational
process 	that 	taxpayers, 	educators, 	parents 	and 	school 	children
have 	a 	right 	to 	expect.
Raymond J . 	Gonzales, 	Member
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STATE OF CALIFORNIA
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
In the Matter of:
OAKLAND UNIFIED SCHOOL DISTRICT,
Employer,
and
TEAMSTERS UNION, Local 853,
PUBLIC EMPLOYEES DIVISION, 	I.B.T.,
Employee Organization,
and
CHILDREN'S 	CENTER EMPLOYEES UNION,
L o c a l 	2,
Employee Organization,
and
OAKLAND SCHOOL EMPLOYEES ASSOCIATION,
Employee Organization,
and
OAKLAND, 	CALIFORNIA UNIFIED SCHOOL
EMPLOYEES UNION,
Local 257, AFSCME, AFL-CIO,
Employee Organization,
and
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
Oakland Chapter #1,
Employee Organization,
and
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) 	Case Nos. 	SF-R-120
SF-R-258
SF-R-273
DECISION'S
July 7, 	1977
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OAKLAND PUBLIC 	SCHOOLS 	PEACE 	OFFICERS
ASSOCIATION,
Employee 	Organization,
and
UNITED TEACHERS 	OF OAKLAND,
AFT Local 771, AFL-CIO,
Employee 	Organization,
and
BUILDING AND 	CONSTRUCTION TRADES 	COUNCIL
OF ALAMEDA COUNTY,
Employee 	Organization,
and
AFSCME, Local 2078,
Oakland Unified 	School 	District
Cafeteria Employees Union,
Employee 	Organization.
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Appearances: William E. 	Brown, Attorney (Brown and Conradi) 	for
Oakland Unified School District; 	John Allen 	for Oakland Public
School District Peace Officers Association; 	Stewart Weinberg,
Attorney 	(Van Bourg, 	Allen, Weinberg, 	& Roger) 	for Building
and Construction Trades 	Council of Alameda County; 	Robert J.
Bezemek, Attorney (Van Bourg, Allen, Weinberg, 	& Roger) 	for
United Teachers of Oakland/AFT Local 771, 	AFL-CIO; 	V. 	Roy
Lefcourt, 	Attorney, 	for Children's Center Employees Union,
Local 	2; 	Tom Sinclair, 	Attorney, 	for Oakland School Employees
Association; 	Arthur Levine, Attorney, 	for California School
Employees Association, 	Oakland Chapter #1; 	Hirsch Adell, 	Attorney
(Reich, Adell, 	and Crost) 	for Oakland, 	California Unified
School Employees Union, Local 257, AFSCME, AFL-CIO.
Before Terry Filliman, 	Hearing Officer.
OPINION
PROCEDURAL 	HISTORY
The Oakland Unified School District 	is 	composed of 	62
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elementary schools, 	14 junior high schools, 	8 senior high
schools, 	23 children's 	centers and has an average daily
1
attendance of 60,282 	students. 	The District employs 	approx-
imately 3500 classified employees 	excluding substitutes, 	short-
term and exempt 	employees. 	During 	the period of April 	to
October, 	1976, 	the above listed organizations filed 13 	separate
requests 	for recognition and interventions 	seeking 	to become
the 	exclusive representative 	in 11 	separate yet overlapping
negotiating 	units2. 	The organizational 	petitions 	are
summarized by 	the nature 	of the unit proposed therein.
On April 1, 	1976, 	the Teamsters Union, Local 853,
Public Employees Division, 	I.B.T. 	(Teamsters) 	filed a request
for recognition in a unit 	consisting of 15 warehousemen. 	On
April 12, 	1976, 	the Oakland School Employees Association 	(OSEA)
intervened for a unit of 8 	storeroom warehousemen in the
central office of the District warehouse.
On April 1, 	1976, 	Oakland, 	California Unified School
Employees Union, Local 257, AFSCME, AFL-CIO (AFSCME) 	filed a
request 	for recognition 	in a unit 	consisting of 280 	custodial
employees, 	including custodians, 	supervising custodians, 	and
aides 	to handicapped children. 	No 	interventions were 	filed.
1/Annual Report, Financial Transactions Concerning School
Districts of California, 	Fiscal Year 1975-76; 	1976 California
Public 	Schools Directory.
2While 	all parties of record to 	the original hearings 	are named
herein, 	several parties 	are not 	directly affected by the
consolidated decisions due to prior settlements. 	(Cases
SF-R-27, 252, 277, 292, and 528).
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On April 	13, 	1976, 	the Building and Construction Trades
Council 	of Alameda County 	(Trades 	Council) 	filed a request 	for
recognition 	in 	a unit 	consisting of 	approximately 	219 	craft,
gardening, 	and maintenance 	employees. 	The unit 	descriptions
included 	certain 	foremen 	and 	assistant 	foremen. 	No 	interventions
were 	filed.
On April 	1, 	1976, 	the Children's 	Center Employees Union,
Local 	2 	(CCEU) 	filed a request 	for recognition 	for a unit
consisting 	of 	220 	instructional 	assistants 	and 	substitutes 	in
children's 	centers. 	On April 	19, 	the Oakland School Employees
Association 	(OSEA) 	intervened, 	claiming that a unit of 1000
paraprofessionals 	covering 	all 	District 	facilities was
appropriate. 	On May 10, 	1976, 	the United Teachers 	of Oakland,
AFT Local 	771, 	(UTO) 	also 	intervened, 	claiming the broader unit
of paraprofessionals was 	appropriate.
On April 	13, 	1976, 	the Brotherhood of Teamsters 	and Auto,
Truck Drivers, 	Local 	70 	(Local 	70) 	filed a request 	for
recognition for 	a unit of 	11 	truck drivers. 	No 	interventions
were 	filed.
On April 	1, 	1976, 	California School Employees Association,
Oakland Chapter #1 	(CSEA) 	filed a request 	for 	recognition 	seeking
12 	peace officers within 	the 	security department. 	On April 	8,
1976, 	OSEA filed an 	intervention 	challenging 	the 	appropriateness
of 	the 	the peace 	officer unit 	and 	claiming an 	845 	person office
technical 	unit. 	The proposed unit 	consisted of all 	security
department members 	and additional 	employees 	in 	the 	following
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sections: community	. 	schools, clerical, fiscal, secretarial,
data processing, 	and technical professions. 	On April 19,
the Oakland Public 	Schools Peace Officers Association 	(POA)
filed a competing claim for the 12 peace officers.
On October 14, 	1976, 	OSEA filed a request for recognition
for a unit of 550 cafeteria workers. 	On November 8, 	1976,
AFSCME Local 2078, 	Oakland Unified School District Cafeteria
Employees Union 	(AFSCME, 	Local 2078) 	filed an intervention
claiming the cafeteria workers 	and all 	substitutes.
The hearing officer met with the parties in a pre-hearing
conference on October 13, 	1976, 	to seek resolution of the numerous
unit disputes. 	During the period of October 18-21 and 	.
December 6-8, 	1976, 	settlements were reached over many disputed
issues 	and testimony was 	taken regarding the remaining disputes.
During the course of the hearing, 	the District and the employee
organizations agreed to at least 8 appropriate units. 	Prior
to the issuance of this decision, 	the parties have agreed upon
action which has resulted in either voluntary recognition, 	a
consent election, 	or the conversion of the dispute into a unit
clarification 	following 	establishment 	of an exclusive representa-
tive in the following units: 	peace officer unit; 	office technical
unit; 	truck driver unit; 	warehouse unit; 	and a cafeteria unit.
As a result, 	only three unrelated issues remain. 	In two
instances, 	the parties have agreed upon an appropriate custodial
and buildings and grounds unit, 	but dispute certain supervisors.
In the third case, 	the parties dispute whether one or two para-
professional units 	are appropriate. 	These issues 	constitute
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separate cases with the District being the only common party. The
hearings, 	decisions and orders have been consolidated for ad-
ministrative 	convenience.
CASES 	SF-R-120, 	273
(Paraprofessionals)
Parties: United Teachers of Oakland, AFT Local 771, AFL-CIO
(AFT); Children's Center Employees Union, Local 2 (CCEU); Oakland
School Employees Association 	(OSEA); 	Oakland Unified School
District (District).
ISSUES
1. 	May a unit of children's 	center instructional assistants
appropriately be 	separated 	from a 	"public 	school" 	paraprofessional
unit?
2. 	If so, 	should the unit include substitute children's
center 	instructional 	assistants?
DISCUSSION
Unit Placement
All parties agreed 	that a paraprofessional unit 	should
include at least the following employees: 	instructional assistants,
community assistants 	and health assistants 	in "public 	schools"3/.
This 	stipulation is accepted without 	further 	inquiry. 	The
District, 	UTO and OSEA further 	contended 	that 	instructional
assistants 	in children's 	centers 	should be 	included within 	the
3A11 	parties 	agreed to 	describe paraprofessionals 	serving 	in
District 	classes 	other 	than children's 	centers 	as
instructional assistants 	in public 	schools.
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same unit. 	CCEU has 	petitioned 	to 	create 	a separate unit
consisting 	of 	instructional 	assistants 	and 	substitute
instructional 	assistants 	employed 	in 	children's 	centers.
The District 	employs 	approximately 	1000 	instructional
assistants 	including 	138 who work in 	23 	children's 	centers.
Of 	the 	approximately 	50 	community 	assistants 	and 	40 health
assistants 	employed in 	the District, 	none appear 	to be
claimed by 	CCEU 	for 	inclusion 	in 	the 	proposed 	children's
center unit.
1
The 	parties 	collectively called 	14 witnesses 	relating 	to
this 	issue. 	Of the 23 	children's 	centers, 	Martin Luther King
Center 	appears 	to 	operate under 	a philosophy more 	akin 	to 	a
regular 	elementary 	school 	than 	do 	the 	other 	22 	facilities.
Most witnesses 	called by the District, 	OSEA and UTO were
employed at 	the Martin Luther King 	school. 	Witnesses 	called
by 	CCEU were 	employed at 	other 	children's 	centers. 	Much of
the 	general 	testimony 	given was 	contradictory because 	of 	the
major 	distinction between 	two 	existent 	philosophies 	in 	the
operation of 	children's 	centers.
Children's 	centers 	are 	a 	separate, 	optional 	program which
may be 	offered by 	a 	school 	district which meets 	certain 	federal
and 	state requirements. 	The 	centers 	are 	open 	five 	days 	a week
year-round, 	or 	for approximately 	255 	days 	per year. 	They are
open 	from approximately 	6:30 	a.m. 	until 	6:00 	p.m. 	each 	day.
Children who 	attend the 	centers 	range 	in age 	from 6 months 	to
12 	years. 	The program is 	funded by 	specially earmarked
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federal 	and 	state 	funds, 	a 	local 	tax override which may be
imposed upon 	the 	community, 	and 	fees 	paid by parents.
Generally 	speaking, 	the programs 	are 	established to
provide 	child 	care 	including 	a 	loosely 	defined 	educational
component 	for 	parents who work 	or 	are undergoing 	training 	to
qualify 	for 	employment. 	The 	children 	engage 	in activities
designed to 	develop 	sensory, 	motor, 	perceptual 	discrimination
and language 	skills. 	Pre-school 	children are 	taught basic
developmental 	techniques. 	School-age 	children engage 	in
more 	progressively 	complex 	developmental 	activities 	when not
attending 	regular 	school 	classes.
II
Section 3545 	(a) 	of the EERA establishes 	criteria 	for
determination of appropriate negotiating units 	as 	follows:
(1)... community of interest between and among employees;
(2)...their 	established practices 	including 	(a) 	the 	extent
to 	which 	such 	employees 	belong 	to 	the 	same 	employee 	organiz-
tion and 	(b) 	the 	effect 	of 	the 	size of the unit upon 	the
efficient 	operation of 	the 	school 	district.
In 	interpreting 	the 	community of 	interest 	criteria, 	the
EERB 	has 	adopted 	several 	standards 	established by 	the National
Labor Relations 	Board 	to 	assist 	in making 	a 	specific
determination. 	They include 	qualifications, 	training and
skills, 	job functions, 	method of wages or pay schedule, 	hours
of work, 	fringe benefits, 	supervision, 	frequency of contact
with other 	employees, 	integration with work 	function of
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4	other employees, 	and interchange with other employees.4
In Pittsburg Unified 	School 	District,5 the Board 	found
that 	paraprofessional 	employees 	including 	all 	instructional
aides 	constituted 	an 	appropriate 	separate negotiating unit.
The 	unit 	was 	distinguished 	from other 	classified 	employees
based upon a 	finding 	that 	the 	primary 	function of para-
professionals 	involved working with 	students, 	either 	at 	an
instructional 	or 	disciplinary 	level.
Since 	the 	employer 	in Pittsburg 	did not 	operate 	any 	children's
centers 	and 	the 	Board 	found 	that 	all 	or 	almost 	all 	instructional
aides 	employed 	in 	that 	District worked 	an 	identical 	number 	of
hours 	per 	day ten months 	per year, 	and 	served under 	the 	direct
supervision of 	school 	principals 	at 	each 	school 	site, 	that
decision 	does not 	appear binding 	in 	the present 	case. 	Further-
6
more, 	in Sweetwater Unified School 	District 	the Board was not
presented 	an 	issue 	regarding 	children's 	center 	paraprofessionals
as 	distinguished 	from paraprofessional 	generally.
4see 	4 Los Angeles Unified School District, 	EERB Decision No. 	5,
November 24, 	1976.
5EERB Decision No. 	3, 	October 14, 	1976.
6EERB Decision No. 	4, 	November 23, 	1976
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Among 	the 	criteria 	considered 	in 	determining 	community
of interest 	in its 	early- decisions the EERB has placed primary
7
emphasis upon 	the job 	functions of the 	employees 	in question.
In its presumptively appropriate units, 	the Board has grouped
together 	employees who 	are paid 	from different 	funding 	sources,
who work varying hours, 	and who work both at 	school 	sites and
at central 	locations provided that 	the employees' mainline
service was broadly either related 	to 	one of 	the 	following
categories: 	students, 	record-keeping or physical environment.
Despite 	extensive 	testimony attempting 	to 	distinguish
the authority, 	functions and purposes 	of instructional 	aides
in children's 	centers 	from those in public schools, 	it 	is
found 	that 	the 	fundamental 	job 	function of all paraprofessionals
within both programs 	is 	nevertheless 	similar 	in providing
"assistance" 	to children. 	Just as 	the philosophical approach
within children's 	centers 	differs 	regarding 	an emphasis 	on academic
materials, 	the range of philosophies regarding traditional or
experimental 	approaches 	to 	instruction must 	differ within the
public 	schools 	of 	the District. 	A separate 	community of 	interest
cannot be 	established based upon job 	function 	alone.
Notwithstanding 	its 	prior decisions 	cited above, 	the Board
was 	impressed with 	factors 	regarding 	the 	Oakland 	Children's
Center 	system beyond job 	function of 	the 	employees when 	it 	created
a separate unit 	for 	certificated children's 	center 	teachers 	in
7See Pittsburg, 	Sweetwater, 	Fremont Unified School District,
EERB Decision No. 	6, 	December 16, 	1976, 	San Diego Unified School
District, EERB Decision No. 	8, February 18, 	1977.
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8
Oakland Unified School District. 	The Board stated "We 	find
compelling 	those 	facts which clearly 	indicate 	the 	separate 	and
distinct nature of the children's 	center program." 	(emphasis 	added)
It would appear based upon 	the 	facts which are virtually iden-
tical 	to 	the present 	case 	that 	the Board in Oakland moved away from
a determination based primarily upon job 	functions 	toward a
distinction based upon the nature of the programs 	in which the
employees 	served. 	The distinction was 	found in part 	to be
based upon the fact 	that 	the program "has 	a separate budget,
a 	separate administration, 	a separate average daily attendance
count, 	and the center sites 	are separate from the regular
school 	sites."..."if the program is 	so unique 	that 	separate
administration is considered more efficient, 	separate
negotiations would 	likewise appear more efficient."
Each of the 	factors 	listed above relating 	to 	the distinct
nature 	of 	the 	children's 	center program are recognized by 	the
hearing officer as 	a determination by the Board which apply to
this 	case. 	The Oakland decision provides 	a foundation for
finding 	a 	separate-community of 	interest by all 	children's 	center
employees 	in the Oakland Unified School District. 	In addition,
and equally important, 	notwithstanding 	the broad 	similarity
of job 	function, 	instructional assistants 	in children's 	centers
have had 	in practice a 	sufficiently distinguishable history of
employment 	conditions 	as 	to justify a community of 	interest
distinct 	from paraprofessionals 	in the public 	schools. 	The
8EERB Decision No. 	15, March 28, 	1977
-11-

record 	indicates 	enough unique 	characteristics 	of 	the 	children's
center 	employees 	as 	to hazard 	them to 	an 	inequitable bargaining
relationship 	if merged 	into 	the much larger, 	overall para-
professional unit.
Without 	question, 	the 	similarities 	between all 	paraprofessional
employees 	cannot 	be 	overlooked. 	All 	instructional 	assistants
are 	included within one 	job 	classification by 	the 	District.
The 	employees 	are 	paid 	an hourly wage 	uniformly on 	the 	salary
schedule. 	Both public 	school 	and 	children's 	center 	assistants
must have identical educational requirements, 	e.g., 	"a
combination 	equivalent 	to 	graduation 	from high 	school 	and 	some
experience working with young people." 	All 	instructional
assistants 	are 	the 	only 	classified 	employees who 	receive 	salary
step 	increases 	as 	the 	result 	of 	completing 	additional 	college
courses. 	The 	employees 	uniformly receive 	the 	same medical
benefits, 	sick leave, 	occupational leave, 	jury duty leave, 	and
holidays 	as 	other 	classified employees. 	The benefits 	are
prorated based upon 	the number 	of hours worked. 	No 	credential
is 	required 	for 	employment 	as 	an 	instructional 	assistant 	in 	either
a 	children's 	center or 	a public 	school, 	although 	several
assistants 	in both programs 	have 	such certificates. 	Each
instructional 	assistant works 	in a 	classroom setting at 	a
school or a center.
-12-

Several other apparent 	similarities 	disappear when
scrutinized more 	closely. 	Most 	children 	center 	instructional
assistants work 3% hours per day. 	Generally, 	public 	school-
room assistants work 3-4 hours 	depending upon 	the needs 	of
the school. 	Children's 	centers are maintained up to 11 hours
per day in order to provide day care 	for 	the children of
working parents. 	This 	length of operation requires 	the employ-
ment of instructional assistants 	in two 	shifts on a daily basis,
While public 	school assistants may have 	staggered starting times,
no 	testimony revealed 	that 	they regularly work 	two 	distinct
shifts. 	A conflict regarding differential pay may arise 	if the
employees 	are 	lumped together.
Children's 	center instructional assistants work 12 months
per year, 	whereas public 	school assistants are employed for 10.
This 	difference alone does not indicate a separate 	community
of interest. 	On the other hand, 	the resulting effect upon the
employees' 	interest in paid vacation and seniority rights
may. 	Public 	school instructional aides 	do not work when schools
are closed, 	and their only paid time off is pre-established
by the 	school calendar 	for 	such times 	as 	Christmas 	and Easter
vacations. 	Children's 	center instructional aides receive
paid vacation based upon length of time 	in service. 	Whether
an employee is entitled to 2, 	3, 	or 4 weeks of paid
vacation for a given length of service applies 	only to
children's 	center instructional aides.
-13-

The 	testimony relating 	to 	job 	seniority 	and 	layoffs 	was
confusing at best. 	While 	the District 	contends 	that job
seniority 	is 	controlled by 	the 	Education 	Code 	and 	is 	identical
for 	all 	employees 	in 	the 	instructional 	assistant 	classifica-
tion, 	the 	fact remains 	that no 	children's 	center 	instructional
aides 	have 	ever been 	laid off, 	while public 	school 	instructional
aides 	have. 	This was 	explained on 	the basis 	that 	children's
center 	instructional 	assistants 	acquire more 	seniority while
working 	12 	months 	combined with 	a 	District uncertainty 	about 	the
date 	on which 	layoffs 	should have been 	considered 	to 	take 	place
for purposes 	of determining 	seniority 	in 	1974-75. 	While 	it
appears 	clear 	that 	the District 	does not maintain 	two 	seniority
lists, 	the practical 	effect 	of children's 	center 	instructional
assistants 	gaining more 	seniority 	each year 	than 	their 	counter-
parts 	places 	the 	two 	groups 	in conflict when 	the District 	is
faced with 	cutbacks.
Distinctions 	are apparent 	in 	the hiring process. 	Public
school 	instructional 	assistants 	are hired at 	the 	school 	site by
the 	principal 	and 	faculty but 	under 	criteria 	established by
a 	school 	advisory 	committee. 	The 	school 	advisory 	committee 	is
a 	committee 	of 	parents 	and 	community 	persons 	prescribed 	to
oversee 	specialized 	state 	and 	federal 	programs. 	The need 	for
additional 	instructional 	assistants 	depends 	upon 	the resources
and requirements 	of 	the 	particular 	program involved. 	Children's
center 	instructional 	assistants 	are 	hired only by 	the 	head
teacher of each center. 	On an 	informal basis, 	each center has
-14-

established a requirement 	for 	service 	as 	a 	substitute
instructional 	assistant 	during a 	"probation period" 	prior 	to
employment 	as 	a regular 	instructional 	assistant. 	No 	similar
substitute requirement was mentioned 	in 	the public 	schools.
Based upon 	federal 	adult-child 	ratios 	prescribed 	in 	children's
center programs, 	the 	substitute 	is always called to work to
replace an absent 	instructional 	assistant. 	No 	such 	general
requirement 	exists 	in the public 	schools. 	In summary, 	the
process 	of hiring an 	instructional 	assistant 	is 	different
and may be 	based upon 	different 	needs 	in 	the 	public 	schools
and 	the children's 	centers, 	dependent upon 	the funding and
regulatory 	requirements 	involved.
While 	all 	paraprofessionals 	receive 	similar 	fringe benefits,
only 	children's 	center 	employees 	are 	entitled 	to 	be 	covered by
Social Security, 	when they work less than the four hours per
day necessary 	to belong 	to 	the Public 	Employees 	Retirement
System. 	Normally only 	those 	employees 	eligible 	for 	the retire-
ment 	system are 	eligible 	for 	Social 	Security. 	The 	eligibility
for 	Social 	Security by one 	segment 	of part-time 	employees
that 	is 	denied 	to part-time 	assistants 	in public 	schools 	is
another 	incident 	of conflicting 	interests.
The 	lines 	of 	supervision and 	levels 	of grievance 	extending
beyond 	the 	site 	level 	are 	dissimilar. 	The 	children's 	center
instructional 	assistant 	would 	report 	through 	the 	head 	teacher 	up
to 	the 	autonomous 	director 	of 	children's 	centers who 	in 	turn
reports 	to 	the 	associate 	superintendent 	for 	support 	services.
The 	supervision 	of 	a 	public 	school 	instructional 	assistant
-15-

would be 	channeled 	through 	the 	school 	principal up 	to an
area 	superintendent. 	While 	the associate 	superintendent 	for
support 	services 	and the 	two 	area 	superintendents 	have 	equal
rank, 	they have 	differing responsibility and differing 	lines
of authority. 	The avenues 	for processing grievances 	also
follow the 	differing paths 	of the 	lines 	of supervision.
The 	interchange between the 	employees 	is 	infrequent.
Approximately 15-20 	public 	school 	instructional 	assistants
substitute 	in children's 	centers 	during 	the 	summer. 	On the
other hand, 	the District 	admitted that a prior experience 	in
allowing 	children's 	center 	assistants 	to 	simultaneously work
in the public 	schools proved disastrous. 	Since the job
description is 	identical 	for all 	instructional assistants,
transferring 	is 	undoubtedly 	legally possible 	on a permanent
basis. 	In practice, 	transfer from the public schools 	to the
children's 	centers occurs 	only infrequently. 	Whether 	this 	is
due 	to a hierarchial 	attitude by employees 	in 	the District or
due 	to a distinction 	in job 	function cannot be concluded.
The District 	presented witnesses 	establishing 	that 	the public
school 	and children's 	center 	instructional 	assistants 	visit
each other, 	participate in assemblies, 	and go on picnics or
excursions 	, 	attend staff meetings 	and parent meetings 	at 	the
public 	schools. 	Each of 	these witnesses 	related specifically
to 	the 	relationship between Martin Luther King 	children's
center and public 	school. 	At best, 	the 	testimony could be
expanded to 	3 of the 23 	children's 	centers. 	On the other hand,
CCEU presented 	testimony 	describing 	3 	other 	children's 	centers
where 	there was 	no 	contact between 	the 	center 	and 	its 	attendant
public 	schools.
-16-

Given 	the 	geographic 	distance between many 	centers 	and 	the
public 	schools, 	the different hours 	of operation of the 	centers,
and 	the 	fact 	that no 	organized 	program of 	interchange 	or
regular 	in-service 	training 	exists 	to 	provide 	interaction
between the 	two 	groups, 	it 	cannot be 	concluded that any
substantial 	amount 	of 	contact 	exists 	between 	the 	employees.
Based upon 	the 	finding 	of 	the 	Board 	regarding 	the
uniqueness 	of 	the 	children's 	center 	program and 	the 	additional
factors 	relating 	to 	the 	competing 	interests 	of 	the 	children's
center 	paraprofessional 	employees 	as 	against 	other 	instructional
assistants, 	it must be 	concluded 	that 	the 	inclusion of 	the
children's 	center 	employees 	in 	the 	larger 	unit would produce
conflicting bargaining 	interests 	and 	impede 	the 	bargaining
process 	for both groups 	in 	the 	absence 	of 	overwhelming
contrary 	conclusions 	about 	efficiency 	of 	operation 	and 	extent
of organization.
Instructional 	assistants 	in 	the 	children's 	centers 	have
indicated 	some 	support 	for 	each of 	the 	organizations 	a party
to 	the 	hearing. 	CCEU was 	recognized by 	the District 	in
October, 	1975, 	as representing children's 	center employees.
Because of 	its 	recent 	recognition, 	it 	did not participate 	in
meet/confer 	sessions 	in 	1975-76 	and has no history of
negotiating. 	Approximately 	54% of 	the 	children's 	center
instructional 	assistants 	are 	dues-paying members 	of 	CCEU.
The 	other 	organizations 	did not 	present membership 	testimony.
The 	result 	reached based upon 	community of 	interest 	is 	not

altered 	on 	the basis 	of 	the 	foregoing 	extent 	of membership 	and
history 	of 	bargaining 	testimony.
The District 	contends 	that 	the 	formation of a 	carve-out
children's 	center 	unit would be 	detrimental 	to 	its 	efficient
operation. 	The 	Board 	found 	in Oakland 	that 	the 	creation of 	a
separate 	certificated 	children's 	center 	unit would not
seriously 	impair 	the District's 	efficiency of operation.
In 	light 	of 	its 	size and 	the 	fact 	that 	the District has
previously 	agreed upon 	8 	appropriate 	classified negotiating
units, 	it 	is 	concluded that 	the District's 	operations will
not 	be 	seriously 	impaired.
Substitutes
CCEU has 	also 	requested 	the 	inclusion 	of 	substitute 	children's
center 	instructional 	assistants 	in 	its 	proposed negotiating
unit. 	It 	contends 	that 	all 	substitutes have 	a 	significant
community of 	interest with 	the 	regular 	employees 	in 	the 	proposed
unit. 	The 	contention 	is 	based upon 	the 	argument 	that 	substitute
children's 	center 	instructional 	assistants 	are not 	simply
replacing 	absent 	personnel 	but 	are 	in 	addition undergoing 	an
informal 	probationary period prior 	to 	being 	employed as 	a
regular 	instructional 	assistant. 	Unlike 	public 	school 	instructional
assistants who 	are 	replaced only based upon absence 	due 	to 	illness,
children's 	center 	instructional 	assistants 	receive 	paid vacation
and are 	absent 	on 	a regular 	continuing basis 	of 	several weeks 	per
year. 	Finally due 	to 	federal 	requirements 	of adult-student
-18-

ratios, 	the need for substitutes is mandatory on a continuing
basis. 	The director of children's 	center operations 	testified
that 	a 	substitute might be employed for more 	than one
consecutive month at a particular center.
To date, 	the Board has 	issued no decision considering
the community of interest of classified substitutes. 	Yet 	it 	is
apparent 	from cases 	affecting 	certificated employees 	that 	the
Board finds no 	community of interest 	in 	substitutes who have no
expectancy of future employment. 	In Belmont Elementary School
District (EERB Decision No. 	7, December 30, 	1976); Petaluma City
Elementary (EERB Decision No. 	9, February 22, 	1977); 	and Oakland
Unified School District (EERB Decision No. 	15, March 28, 	1977),
the 	Board excluded 	long-term certificated 	substitutes who worked
757o or more of the school year on the basis that 	they did not
accrue 	seniority, 	received no 	fringe benefits 	and worked without
a contract.
The record reveals 	only that 	each head teacher retains
approximately 3-6 	substitutes 	at a center 	to 	fill 	in for
employees 	absent 	from service. 	In the absence of any information
regarding the 	frequency of service by substitutes, 	the
probability 	that 	they would be 	employed as 	regular 	instructional
assistants, 	and their ability to receive fringe benefits,
substitutes 	cannot be determined 	to have 	a community of 	interest
with regular children's 	center 	instructional assistants.
Therefore, 	they are excluded from the unit.
-19-

CASE·. S:F-R• 258
(Supervising 	Custodians)
Parties: 	Oakland, 	California School Employees Union, Local 257,
AFSCME, AFL-CIO 	(AFSCME); 	Oakland Unified School District
(District).
ISSUE
1. 	Are the following custodial job classifications
"supervisory employees" within the meaning of the EERA: 	assistant
supervising custodian; 	supervising custodian I; 	supervising
custodian IV; supervising custodian III; supervising custodian IV 5
and 	supervising 	custodian V.
DISCUSSION
I
A 	supervisory employee 	is 	defined by Government 	Code
Section 3540.l(m) 	as one"having authority in the interest of the
employer to hire, transfer, suspend, layoff, recall, promote,
discharge, assign, reward, or discipline other employees, 	or
the responsibility to assign work to and direct 	them, 	or to
adjust their grievances, 	or to effectively recommend such
action, 	if, 	in connection with the foregoing functions, 	the
exercise of such authority is not of a merely routine or
clerical nature, 	but requires 	the use of independent judgment"
The Board has 	determined that 	the possession of any one of the
above 	enumerated duties 	or 	the effective authority 	to recommend
such action through the use of independent judgment 	is
sufficient 	to make one a 	supervisor within the meaning of the
Act.
-20-

A most 	difficult 	determination 	is 	required when 	the
employee 	in question serves 	as 	a 	"working 	foreman" 	or 	"leadman",
In these 	cases, 	a differentiation must be made between 	the
exercise 	of 	independent 	judgment 	in directing 	other 	employees
and 	the 	routine 	passing 	on 	of 	orders 	issued by a 	superior.
A 	determination 	of 	the 	authority 	to 	assign 	and 	direct
employees 	is made 	even more 	important under 	the Act 	due 	to 	the
general proposition that 	few, 	if any, 	supervisors have the
effective authority to hire, 	promote, 	discharge, 	reward, 	or
discipline 	other 	employees 	in 	the 	context 	of 	the 	public 	school
setting.
II
AFSCME 	filed a request 	for recognition 	to 	represent 	a
unit 	of 	314 	custodial 	employees. 	The organization and 	the
District 	agree 	that 	the unit 	should 	consist 	of at 	least 	211
employees 	in the following classifications: 	custodian 	(107);
custodian children's center 	(21); 	custodian II 	(matron) 	(5);
leadman 	(12); 	aide to handicapped children 	(55); 	and substitute
custodian 	(11). 	This 	stipulation is 	accepted without 	further
inquiry. 	The District has 	designated 	the 	additional 	103
employees 	in 	the 	job 	classifications 	of 	assistant 	supervising
custodian 	and 	supervising 	custodian 	I-V 	as 	supervisory
employees. 	These positions 	are 	in dispute.
Each of 	the 	five 	classifications 	of 	supervising 	custodians
has 	a virtually identical 	job 	description. 	Five 	of 	the 	six
classifications 	are 	differentiated by 	the 	size 	of 	the 	school
-21-

9
I .
I ..
'
.
where the custodial crew assisting the "supervisor" works.9
The sixth classification, 	assistant supervising custodian, was
established as 	a 	training position and the incumbents work
at 	the high schools under the direction of supervising
custodian V's.
The positions 	are compensated in direct relationship 	to
the number of employees assigned and the percentage of time
the 	incumbent 	spends 	in actually performing his 	own work as
indicated by the following table: 	(Custodian salary - 	$841).
s
Employee
n
e
Titl
fo
Custodia
u
, cfl
CO O	.
-cos
s
Custodian
d
Assigne
s
g
e
Tim
%
Workin
h Tool
Wit
d
e
'	Tim
	Worke
6 Asst.Supvr.
Custodian $ 863 Under 	direction
of Supvr.
Custodian V
100% 	Night
33 Supvr.
Custodian I $ 886 Supervises 	0-%
people 100% 	Day
20 Supvr.
Custodian II $ 935 Supervises 	1-2
people 90% 	Day
17 Supvr. Cus-
todian III $ 	981 Supervises 	1-2
people 90% 	Day
21 Supvr.
Custodian IV $1026 Supervises ~~
people 80% 	Day
6 Supvr.
Custodian V $1073 Supervises up to
10.5 people
-- 	Day
9 Supervising custodian I's work at 	small 	elementary schools; 	II's
and 	Ill's 	serve 	at medium and large 	elementary schools 	and other
District 	facilities; 	supervising custodian IV's are assigned to
jr. 	high schools and large elementary schools; 	supervising custodian
V's work at 	the six high schools.
-22-

Considering 	the number 	of job 	classes 	in 	dispute 	and
the number 	of individuals 	to be 	affected, 	the 	testimony given
by 	the 	director 	of buildings 	and 	grounds 	and one 	supervising
custodian V was 	extremely broad and non-specific. 	In 	general,
the custodian 	supervisors work a 	7-% hour day shift, 	either
alone 	or 	in conjunction with one or more 	custodial 	employees.
The main 	custodial 	crew reports 	to work during 	the 	last 	half
hour 	or 	following 	the work 	day of 	the 	supervisor.
In 	its 	precedent 	Sweetwater 	decision, 	the Board 	found head
custodians 	to 	be 	supervisory employees 	based upon 	their
authority 	to 	recommend 	the hiring of 	custodians, 	authority
to 	assign and direct 	the work of 	custodians 	serving under 	them,
and authority 	to 	correct work 	improperly performed. 	In
10
San Diego Unified School 	District, 	custodial building 	services
supervisors 	III-IV were 	determined 	to 	be 	supervisory 	following
the precedent 	of 	Sweetwater.
10 EERB Decision No. 	8, 	February 18, 	1977. 	In that case,
the 	District 	had 	four 	classifications 	of 	custodial 	super-
visors 	based upon 	school 	size 	analogous 	to 	the present
situation. 	The 	custodial building 	services 	supervisors 	I
and 	II were 	stipulated as 	part 	of 	the 	custodial unit. 	The
supervisors 	III 	and 	IV were 	assigned between 	5-15 	employees
each. 	The Board clarified 	its view of 	the power 	to 	assign
work by 	stating 	"We 	do not 	view physical 	presence 	during 	the
entire work 	shift 	as 	a condition precedent 	to 	the 	finding of
supervisory 	status." 	New 	criteria upholding 	supervision
were 	found 	including 	the 	authority 	to 	prepare work 	schedules
for crew leaders, 	approval of overtime 	schedules, 	approval
of 	time 	sheets, 	authority to recommend 	transfer 	and dismissal,
and 	the preparation of work performance 	evaluations. 	The
Board 	stated 	"The judgment 	required by 	such work 	is 	not
routine merely because 	the work performed by 	these 	subordinate
employees 	is manual 	labor."
-23-

In 	a 	later 	decision,'11' 	the 	Board 	found 	custodial 	foremen
not 	to 	be 	supervisors 	based upon 	an 	apparent 	distinguishing
of 	the 	facts 	from the 	Sweetwater 	and San Diego 	cases.
In the present 	case, 	all 	supervising 	custodians 	except
assistant 	supervising 	custodian 	and 	supervising 	custodian 	I
are 	found 	to be 	"supervisory employees" within 	the meaning
of 	the Act 	and 	are 	excluded 	from the 	custodial unit.
Each of 	the 	supervising 	custodians 	II-V 	is 	responsible
for 	from 1-10 	full-time 	custodians. 	Each prepares 	a regular
work 	schedule 	and makes 	adjustments 	in 	the work 	schedule 	to
compensate 	for 	emergencies 	or 	for 	special meetings 	or 	functions
conducted at 	the particular 	school. 	The 	supervising 	custodian
V who 	testified 	stated 	that 	special 	assignments 	at 	the 	secondary
level 	occur 	on 	the 	average 	of 	three 	times 	per week 	due 	to
special 	group meetings 	under 	the 	Civic 	Center Act.
The 	supervising 	custodians 	formally 	evaluate 	each new
assistant 	custodian. 	A new custodian 	is 	required 	to be
evaluated 	three 	times 	during his 	initial 	six months 	of 	employment,
The 	evaluation 	is 	completed by 	the 	supervising 	custodian 	and 	is
signed by 	a 	field 	supervisor 	and 	the 	director 	of 	the 	department.
While 	each 	supervising 	custodian 	discusses 	each evaluation
with 	the 	principal, 	no 	testimony 	showed 	that 	a principal 	has
ever made 	any 	changes 	in 	the 	evaluations.
11Foothill-DeAnza 	Community College District, 	EERB Decision
No. 	10, March 1, 1977.
-24-

While promotion 	is 	based 	strictly on 	seniority, 	positive
recommendations 	by 	supervising 	custodians 	have 	been 	placed 	in
the workmen's 	personnel 	files. 	A 	supervising 	custodian may
recommend a 	change 	from the night 	shift 	to 	the 	day 	shift 	for a
particular 	custodian because 	of his 	good performance. 	The
recommendation has 	normally been 	accepted.
Supervising 	custodians 	adjust 	informal 	grievances 	prior
to 	the 	filing of a 	formal written grievance. 	The 	director of
buildings 	and 	grounds 	testified 	that 	he 	becomes 	involved
with 	the 	grievance 	only 	if 	the 	supervising 	custodian 	is
unsuccessful 	at resolving 	the problem. 	When 	automatic 	overtime
is 	authorized due 	to 	an absence, 	the 	supervising custodian
may assign 	individuals 	to perform the work.
Unlike 	Sweetwater, 	the 	supervisory 	custodian plays no 	role
in recommending 	the hiring 	of new employees. 	Regular positions
are 	filled by 	substitute 	custodians who 	gain 	that 	position
on 	the basis 	of 	examination 	and 	selection by 	the 	assistant
supervisor 	of building operations. 	Substitute 	custodians work
full-time 	and 	are 	assigned a regular 	position 	on 	a 	seniority
basis.
Nevertheless, 	based upon their 	authority 	to 	assign and
direct work, 	to adjust grievances, 	to evaluate employees, 	and
to 	recommend an 	employee 	for 	an opening on a more 	desirable
shift, 	supervisory custodians II-V are 	determined to be
supervisory 	employees 	under 	the precedent 	of 	Sweetwater 	and
San Diego.
-25-

The 	assistant 	supervising 	custodian 	is 	the 	first 	promotional
position beyond 	custodian. 	Each of 	the 	six employees 	in 	this
job 	are 	assigned 	to 	the night 	shift 	at 	a high 	school working
with 	the 	custodial 	crew. 	The position was 	originally conceived
as 	a 	temporary 	training 	assignment 	for persons who would 	then
promote 	into 	the 	regular 	supervisory I-V positions. 	Due 	to
a 	cutback 	of 	approximately 85 	positions 	within 	the 	custodial
department during the past 	8 years, 	the position appears 	to
be 	a 	full-time working assignment now. 	While 	the 	director 	of
buildings 	and grounds 	testified 	that 	the 	assistant 	supervising
custodian 	is 	responsible 	for 	five men 	including 	the 	direction
and assignment 	of 	their work, 	it must be 	concluded 	that 	this
responsibility 	is 	conducted under 	the 	direction of 	the
supervising custodian V at 	the 	site.
The 	assistant 	supervising 	custodian 	earns 	only 	$22 	per
month more 	than 	the 	top 	salary of a custodian 	($863-$841).
He 	does not make 	out 	an 	evaluation 	form for 	the 	custodians.
The 	evaluation 	is 	filled out 	and 	signed by 	the 	supervising
custodian V. 	The 	supervising 	custodian V normally makes
assignments 	to 	the 	assistant 	and 	the 	custodial 	crew at 	the
commencement 	of 	their 	shifts. 	While 	the 	supervising 	custodian V
testified 	that 	the 	assistant might 	choose 	the men 	to 	carry out
a 	specific 	assignment 	or 	call 	the police 	in an 	emergency situation,
it 	cannot be concluded, 	based upon these facts 	alone, 	that
these 	duties 	require 	independent 	judgment 	in 	light 	of 	the 	entry-
level nature 	of 	the position and 	its 	placement 	on 	the 	salary
-26-

schedule below 	that 	of 	a 	supervising 	custodian 	I which has
also 	been 	determined not 	to be a 	supervisory position.
The 	supervising 	custodian 	I's 	attend 	custodial 	duties
at 	33 	small 	elementary schools. 	They normally work alone
during the day shift. 	In some schools, 	they receive no
assistance 	and 	in 	other 	schools 	they are 	helped by a 	part-
time 	employee who works 	anywhere up 	to 	20 hours 	per week 	in
the 	evening cleaning 	the 	classrooms.
As mentioned earlier, 	the 	size of 	the 	custodial 	crew
has 	decreased 	significantly over 	the past 	eight 	years.
The District 	raises 	two 	contentions 	as 	to why 	these 	custodians
are 	supervisory although 	it 	is 	evident 	that 	they are 	currently
not 	directing employees. 	First, 	it 	is 	argued that 	Section
3540.l(m) 	speaks 	in terms 	of the 	"authority" 	to perform one
or more of 	the 	listed duties 	of a 	supervisor. 	This 	contention
is 	intended to 	show that 	in the 	future, the size of the custodial
staff 	at 	small 	elementary 	schools 	may increase 	again requiring
direction of a 	crew of men. 	The 	second contention 	is 	that
since 	at 	a majority of 	these 	elementary 	schools 	at 	least 	a
part-time 	employee 	is 	"supervised" 	that 	the job 	classification
should be 	treated as 	a whole.
It must be noted 	that 	the 	size 	of 	the 	custodial 	staff has
decreased 	over 	an 	extended period of 	time 	and 	there 	are no
facts 	to 	indicate 	a future 	increase 	of custodians 	at 	the 	small
elementary schools. 	Furthermore, 	no 	testimony was 	addressed
at 	supervising 	custodian 	I's 	except 	for 	the 	two 	statements 	by
-27-

the 	director 	of buildings 	and grounds. 	His 	testimony revealed
that 	they 	spend 	"almost 	100% 	of 	their 	time working with 	the
tools 	of 	their 	trade" and that 	part-time help 	comes 	in either
as 	the 	supervising custodian 	I 	is 	leaving or 	after he has 	left,
In 	the 	absence of a 	showing 	that 	the work of at 	least 	one
employee 	is 	actually directed, 	an evaluation performed, 	a
grievance processed, 	or an 	inspection made, 	supervising 	custodian 	I ! s
cannot be 	found to be 	"supervisory employees."
In 	considering 	the 	supervisory 	status 	of 	the 	assistant
supervising 	custodian and 	supervising 	custodian 	I, 	the highly
disproportionate 	ratio 	of 	custodial 	supervisors 	claimed by 	the
District was 	taken 	into 	consideration. 	Of the 	314 employees
proposed 	in the unit, 	55 	are aides 	to handicapped children.
These 	employees 	appear 	to have no 	line 	of direct 	supervision
with other 	custodial 	employees. 	Excluding 	them, 	the number of
custodial 	employees 	is 	259. 	If each of 	the 	supervisory job
classifications 	proposed by the 	District 	are 	accepted, 	156
custodians 	and matrons 	would be 	supervised by 	103 	custodial
supervisors. 	Following 	the 	exclusion of 	these 	two 	classifica-
tions, 	the remaining 	three-to-one ratio 	is 	a rank and 	file
employee 	to 	supervisory employee breakdown.
CASE 	SF-R-347
(Buildings 	and 	Grounds 	Supervisors)
Parties; 	Building 	and 	Construction Trades 	Council 	of Alameda
County 	(Trades 	Council) 	and Oakland Unified 	School 	District
(District).
-28-

ISSUE
1. 	Are 	the 	following buildings 	and 	grounds 	unit 	employees
"supervisory" 	employees within 	the meaning 	of 	the Educational
Employment Relations Act: 	glazier 	foreman; 	carpenter 	assistant
foreman; 	locksmith assistant 	foreman; 	gardener 	assistant
foreman; 	electrician assistant 	foreman; 	painter assistant
foreman; 	furniture refinisher; 	furniture refinisher foreman;
roofer 	foreman; 	and mill 	foreman.
DISCUSSION
The 	Trades 	Council 	and 	the 	District 	stipulated 	to 	an
appropriate 	buildings 	and 	grounds 	unit 	excepting 	certain
disputed 	supervisory 	positions.12 This 	stipulation 	is 	accepted
without 	further 	inquiry.
The 	classifications 	disputed as 	supervisory 	are:
carpenter 	assistant 	foreman 	(including 	locksmith); 	glazier
foreman; 	gardener assistant 	foreman; 	electrician assistant
foreman; 	furniture refinisher foreman; 	roofer 	foreman; 	mill
foreman; 	and painter assistant 	foreman.
The 	director 	of buildings 	and 	grounds 	and 	the 	assistant
director 	are management 	employees who 	oversee 	the 	craft
operations. 	Within the buildings 	and grounds 	department, 	there
are 	seven 	crafts which have 	foremen who 	are 	also 	designated
unit consists of the following job classifications:
carpenter; electrician; equipment operator; furniture
refinisher; gardener; glazier; laborer, skilled; locksmith;
millwright; mechanic; painter; plasterer; plumber; roofer;
sheet metal worker I; sheet metal worker II; steamfitter;
and truck driver II.
-29-

"management". 	They are: 	carpenter, 	electrician, 	steamfitter,
plumber, 	gardener, 	laborer and painter. 	These foremen are
paid monthly, 	report 	for work in 	suits 	and ties, 	and work
with 	tools 	only 	in an emergency. 	In 	three 	crafts 	(electrician,
gardener, 	and painter) 	the 	foreman is 	aided by one or more
assistant 	foremen. 	The 	carpenter 	craft 	is 	subdivided 	into
four 	specialities. 	In the general 	carpentry area, 	the
general 	foreman 	is 	assisted by 	an 	outside 	carpenter 	assistant
foreman. 	The other 	three areas 	are headed up by 	three 	sub-
foremen: 	furniture refinisher 	foreman, 	mill 	foreman, 	and roofer
foreman. 	The glazier and locksmith crafts, 	because of 	their
small 	size, 	do not have regular 	foremen comparable 	to 	the
other 	crafts. 	These 	disputed positions 	are paid an hourly wage
on a basis 	equivalent 	to 	assistant 	foremen within 	the other
crafts. 	Whether 	a particular 	craft 	or 	specialty area has 	an
assistant 	foreman 	is 	dependent upon 	the 	size 	of 	the 	crew and
the 	skill 	required by 	that 	craft. 	Irrespective of 	the 	title,
the above positions 	are 	disputed.
DISCUSSION
I
A 	supervisory 	employee 	is 	defined by 	Government 	Code
Section 	3540.l(m) 	as 	one having authority in 	the 	interest 	of 	the
employer to hire, 	transfer, 	suspend, 	layoff, recall, 	promote,
discharge, 	assign, 	reward, 	or discipline other employees, 	or
the responsibility 	to 	assign work to 	and direct 	them, 	or 	to
adjust 	their 	grievances, 	or 	to 	effectively recommend 	such action.
-30-

if, 	in connection with the 	foregoing functions, 	the 	exercise
of 	such 	authority 	is 	not 	of a merely routine or 	clerical
nature, 	but 	requires 	the use of 	independent judgment. 	Possession
of 	any one 	of 	the 	above 	enumerated 	duties 	or 	the 	effective 	power
to 	recommend 	such 	action 	through 	the 	use 	of 	independent
judgment 	is 	sufficient 	to make 	one 	a 	supervisor within 	the
meaning of 	the Act.
None 	of 	the 	assistant 	foremen13 have 	the 	authority 	to
hire 	or 	fire 	or 	effectively 	recommend 	hiring 	and 	firing 	of
crafts 	employees. 	These 	functions 	are 	effectively initiated
and 	carried out 	by 	either 	foremen 	in 	each craft 	by 	the
director 	of buildings 	and grounds. 	Generally, 	the 	craft 	foremen
prepare written 	evaluations 	and 	sign 	them. 	An 	assistant 	foreman
may 	informally 	counsel 	an 	employee 	but 	any 	report 	recommending
disciplinary action is made by 	the 	foreman, 	who 	is 	expected
to 	have made 	an 	independent 	evaluation prior 	to 	reporting
to 	the 	director. 	No 	assistant 	foreman may authorize a 	leave
of absence, 	issue a written reprimand, 	grant 	time off, 	or
authorize 	overtime.
Schedules 	for 	craft 	employees 	except 	for 	the 	glaziers 	are
prepared by 	the 	craft 	foreman. 	Employees 	in 	the 	disputed
positions 	are 	paid 	for 	overtime work.
13For purposes 	of 	this 	discussion, 	all 	of 	the 	disputed 	super-
visors will be 	called 	assistant 	foremen, 	notwithstanding
the 	official 	designation of the 	glazier, 	furniture
refinisher, 	mill 	and roofer personnel 	as 	foremen.
-31-

Each of the assistant 	foremen 	in some manner 	instructs
journeymen on 	the job 	and reviews, their work in conjunction
with regular 	inspections by the 	foremen. 	This 	duty taken alone
in view of 	the 	final 	responsibility of 	the 	foreman 	for
assignment 	and 	inspection 	is not 	sufficient 	to 	establish
supervisory status. 	The glazier 	foreman, 	carpenter assistant
foreman, 	locksmith 	assistant 	foreman, 	and 	furniture
refinisher 	foreman have 	in practice been 	delegated 	additional
authorities 	with respect 	to 	their 	journeymen 	to 	require
a 	finding 	of 	supervisory 	status.
A specific 	determination for 	each job 	classification
is 	treated 	separately as 	follows:
Glazier Foreman
The glazier foreman is responsible for distributing work orders and
assigning glaziers to jobs replacing glass, shades, drapes, and Venetian
blinds within the District. 	Unlike other foremen, he is not paid a
monthly salary and is not aided by an assistant foreman. 	He is responsible
for seven glaziers, who generally perform their duties in pairs. 	On a
daily basis, he receives work orders from the director of buildings and
grounds, determines the materials and time necessary to do each job and
assigns a team of glaziers to perform the job. 	He spends approximately
three hours per day using the tools of the trade in taking measurements for
-future jobs. 	Generally, he remains at the shop, ordering material and making
out time cards. 	He meets with principals and site administrators to determine
the nature of their requests for work. 	He has the authority to decide which
jobs will be done on a particular day and which men will be assigned to
the job. 	He schedules vacations determining according to the workload
whether more, than one glazier should be absent at any one time. 	He files
a formal evaluation on each glazier, which is passed on to the director.
- 3 2 -

..
The 	glazier 	foreman 	inspects 	work performed by 	the 	glaziers
to make 	sure 	it 	is 	being properly undertaken and brings 	any
deficiencies to the workers' 	attention.
The 	glazier 	foreman possesses 	several 	of 	the 	criteria
listed 	in Section 3540.1 (m) 	sufficient 	to make him a 	supervisor
under 	the Act.
Gardener 	Assistant 	Foreman
The 	gardening 	department 	consists 	of 	one 	gardener 	foreman,
one assistant 	foreman, 	and 27 	gardeners.
The permanent 	assistant 	gardener 	is 	injured and on 	dis-
ability 	and 	the 	acting 	assistant 	spents 100%o of 	the 	time working
with 	the 	tools. 	The 	director 	of buildings and grounds 	testified
as 	to 	the normal 	duties 	of the 	assistant 	gardener. 	Approximately
657o of his 	time 	is 	spent preceding 	the 	gardening crew at 	each
District 	site 	to 	determine beforehand what 	additional 	pruning,
trimming, 	watering or 	lawn maintenance needs 	to be 	done 	or
whether 	the use of 	insecticides 	is necessary. 	This 	information
is 	passed back 	to 	the 	foreman not 	directly to 	the 	crew.
He 	also makes 	contacts with 	school 	principals 	to 	determine
whether work 	they request 	to be 	done 	is 	feasible 	or not. 	This
is 	reported 	to 	the 	foreman. 	The 	assistant 	foreman job
description requires 	maintenance 	of 	the 	District 	greenhouse
as 	an additional 	duty.
While 	the 	assistant 	foreman may assume 	the 	duties 	of 	the
foreman when absent, 	no 	evidence 	showed 	the 	frequency of 	such
an occasion. 	It 	is apparent 	that his 	primary responsibilities
-33-

are 	independent 	of 	the 	gardening 	crew. 	Only 	on 	r a r e 	occasions
in 	the 	absence 	of 	the 	foreman 	does 	he 	d i r e c t 	or 	assign work.
He 	does 	not 	evaluate 	other 	employees, 	s e t 	work 	schedules 	or 	vaca-
t i o n 	schedules, 	process 	grievances 	or 	perform 	any 	other
supervisory 	d u t i e s 	on 	a 	r e g u l a r 	b a s i s . 	The 	a s s i s t a n t 	foreman
gardener 	is 	not 	a 	supervisory 	employee.
Assistant Foreman Electrician
The electrician section consists of one foreman, 	two acting assistant
foremen, and 11 electricians. 	One assistant electrician foreman
testified that he worked either alone or as part of a two-man crew
actually performing electrician's work five hours per day. 	In the
remaining three hours he performs paperwork, keeps records and makes
material requisitions. 	From the paperwork, 	approximately one hour per day
is spent determining how much time is spent on each job. 	The assistant
foreman does not assign men to a particular job. 	At a job site, 	if he is
working with a crew, he may determine how the job is to be done, but he does
not determine which jobs to do nor which men should be assigned to a
particular job. 	The assistant foreman does not f i l l out an evaluation
of employees, 	does not assign overtime without the foreman's approval.
In general, he assists the foreman as a skilled leadworker and performs
certain paperwork which is unrelated to supervising the electricians.
He is not a supervisor.
- 3 4 -

Assistant Foreman Painter
The painting department consists of one foreman, four assistant
foremen, and 17 painters. 	The 	assistant foremen work with the crew
90% of the time using the tools of the trade. 	They mix paint, match
colors, check safety equipment, check progress of the job, and make minor
decisions on job requests given by principals. 	Work assignments are
made by the foreman and the assistant foremen assign a particular man
to a task while on the job. 	For example, some men are assigned to trim
windows because of their speed, while others paint walls.
The assistant foreman does not evaluate the individual job or
overall performance of other painters. 	He does not adjust grievances
as part of his job. 	He is not involved in purchasing equipment or
making major repairs.
It must be concluded that the direction of work by an assistant painter
is purely of a routine nature. 	He must be considered as a leadman rather
than as a supervisor. 	His 	power to recommend is limited to an ability
to pass on information to the general foreman. 	The assistant painter
foreman is not a supervisory position.
Carpenter Assistant Foreman-Locksmith Assistant Foreman
The carpenter assistant foreman job classification actually includes
two separate positions: the general carpenter assistant foreman and
locksmith assistant foreman. 	These two positions, in addition to the
furniture refinisher foreman, the mill foreman, and the roofer foreman,
serve under the authority of the general carpenter foreman. 	The general
carpenter assistant foreman receives job assignments from the carpenter
foreman, orders materials, tools, and equipment needed for a particular
-35-

job, and assigns carpenters to a particular project. 	In conjunction with
the foreman, the assistant foreman determines priority to be assigned
various requests for repairs and small jobs that come in from school
sites. 	The general carpenter assistant foreman does not work with the
tools of the trade; rather his function is to see to it that jobs are
properly set up and scheduled. 	He may inspect the site to check job
progress. 	In addition, he checks time cards to allocate the time spent
on a particular job to the appropriate financial category.
The carpentry crew consists of 27 men with 	a variety of
s k i l l s . 	Because 	the 	assistant 	carpenter 	foreman works more
closely with the crew than does 	the 	foreman, 	he plays 	an
important 	role 	in making recommendations 	and 	informally
adjusting 	grievances.
It 	is 	found 	that 	the 	assistant 	carpenter 	foreman 	has 	the
authority 	to 	recommend 	evaluations 	and 	adjust 	grievances 	in
addition 	to making regular 	inspections 	of work performed.
He is a supervisory employee.
The second assistant carpenter foreman specializes in locksmith work.
He is responsible for five locksmiths to repair the breakage of locks
and 	lockers throughout the school district, change combinations on
lockers, and repair safes. The locksmith assistant foreman signs
the formal evaluations. 	The locksmith assistant foreman is not supervised
by the carpenter foreman. 	He reports directly to the director of
buildings and grounds. 	He schedules employees to various sites in the
District to perform their work, but does not assign overtime. 	He does
not adjust grievances nor make reprimands. 	In the past, he has been
involved in interviewing apprentice locksmiths, but the final employment
decision was made by the director.
36-

Based upon 	his 	authority 	to 	schedule 	and 	evaluate 	employees,
the locksmith assistant is a supervisor.
Roofer Foreman
The roofer foreman works in conjunction with the general carpenter
foreman to repair, replace, reseal and plan the work on roofs of District
facilities. 	The director of buildings and grounds establishes the
priorities for roofing jobs and priorities cannot be altered without his
consent. 	Once the priorities are established, the job information is
given to the general carpenter foreman, who then relays it to the roofer
foreman. 	The roofer foreman works with two roofers approximately 65% of
his work week. 	In addition, he orders materials for roofing and for tile
floors. 	While he might be questioned about the skills of a person or
a potential job applicant, the final decision would be made by the
director with consultation from the carpenter foreman. 	Because the roofing
section is a part of the carpentry department, the evaluation for the roofers
is actually made by the carpentry foreman. 	The director testified that
any recommendation for discharge would require an independent investigation
prior to being put into effect. 	Given the percentage of time he performs
routine work, his hourly pay, the fact that he is supervised by the
carpenter foreman, and the small size of the roofing crew, it must be
concluded that the roofing foreman is not a supervisor under the Act.
Furniture Refinisher Foreman
The furniture refinisher foreman is actually a specialized assistant
foreman who reports directly to the director of buildings and
grounds. 	He is responsible for the finishing of furniture, small
carpenter jobs, and repairs to upholstery and sandblasting of furniture.
According to the director, "...the maximum he could spend (actually working
with the tools) would be about 30% because the supervisory duties would
- 37 -

preclude his doing any more..." 	Because the furniture refinisher foreman
works directly for a management employee rather than another crafts
supervisor, he initiates and makes recommendations regarding the
evaluation of furniture refinishers. 	While the director has the authority
to change the foreman's evaluations, he has never done so. 	Unlike 	other
assistant foreman who work under a foreman, he is solely responsible for
inspecting completed jobs. 	Based upon his authority to effectively
recommend the evaluation of employees and the authority to inspect the
work of his crew, the furniture refinisher foreman is a supervisory
employee.
Mill Foreman
The mill foreman is a speciality sub-foreman under the jurisdiction
of the general carpenter foreman. 	He spends no time working with a
hammer or other tools of the trade, but his work relates to getting
ready for a carpentry job and does not primarily involve supervising
carpenters. 	He is required to obtain an inventory of carpentry material,
including lumber and plywood. 	In addition, he 	determines the amount of
material used for a job and distributes the material list to each
carpenter performing a particular job. 	He also dispatches two truckdrivers
within the carpentry department to deliver materials to various jobs.
He makes sketches and interprets blueprints for cabinetry and shelves
commonly used within the District. 	Evaluations are signed by the general
carpentry foreman and no testimony shows that the mill foreman makes an
effective recommendation. 	No testimony demonstrated that the mill foreman
actually assigns or inspects work of carpenters beyond his job
description, which was placed into evidence. 	On the basis of the above facts
the mill foreman is found not to specifically possess any of the supervisory
criteria.
- 3 8 -

CASES 	SF-R-120,273
PROPOSED 	DECISION
As 	relating 	to 	the 	representation 	dispute between 	the
UNITED TEACHERS OF OAKLAND, 	AFT Local 	771, 	AFL-CIO; 	CHILDREN'S
CENTER EMPLOYEES UNION, 	Local 	2; 	OAKLAND SCHOOL EMPLOYEES
ASSOCIATION: 	and OAKLAND UNIFIED SCHOOL DISTRICT, 	it 	is 	the
proposed 	decision 	that:
1. 	The 	following units 	are appropriate 	for 	the purpose of
meeting 	and negotiating 	providing 	an 	employee 	organization
becomes 	the 	exclusive representative:
Paraprofessional 	Unit - All 	instructional 	assistants,
community assistants, 	and health assistants 	in public 	schools;
excluding 	instructional 	assistants 	in 	children's 	centers,
substitutes, management, 	supervisory, 	and confidential employees.
Children's 	Center 	Instructional Assistants Unit 	- All
instructional 	assistants 	in 	children's 	centers 	excluding 	substi-
tutes, 	management, 	supervisory, 	and confidential employees.
The 	parties 	have 	seven 	calendar 	days 	from the 	receipt 	of
this 	proposed 	decision 	in which 	to 	file 	exceptions 	in 	accordance
with Section 33580 of the Board's Rules 	and Regulations. 	If no
party 	files 	timely 	exceptions, 	this 	proposed 	decision will 	become
a final order on 	July 19, 1977 and a Notice of Decision will
issue 	from the 	Board.
Within 	10 workdays 	after 	the 	employer posts 	the Notice 	of
Decision, 	the 	employee organization 	shall 	demonstrate 	to 	the Region-
al Director at 	least 	30 percent 	support 	in the above units. 	The
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Regional Director 	shall 	conduct 	an 	election 	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 qualifies 	for 	the
ballot 	and 	the 	employer 	does 	not 	grant 	voluntary recognition.
Date: 	July 7, 	1977
CASE 	SF-R-258
PROPOSED 	DECISION
As 	relating 	to 	the 	representation 	dispute between
OAKLAND, 	CALIFORNIA UNITED SCHOOL EMPLOYEES 	UNION, 	Local 	257
AFSCME, 	AFL-CIO and OAKLAND UNIFIED SCHOOL DISTRICT, 	it 	is
the proposed 	decision 	that:
1. 	The 	employees 	in 	the 	following job positions 	are
"supervisors" within the meaning of Section 	3540.l(m) 	of 	the
Act 	and 	are 	excluded 	from the 	custodial 	unit 	stipulated 	to 	be
appropriate by the parties: 	supervising custodian II,
supervising custodian III, 	supervising custodian IV, 	and
supervising 	custodian 	V.
2. 	The employees 	in the job positions 	of assistant 	super-
vising 	custodian 	and 	supervising 	custodian 	1 	are not 	"super-
visors" 	and 	shall be 	included 	in the 	custodial unit.
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The 	parties 	have 	seven 	calendar 	days 	from 	the 	receipt 	of 	this
proposed 	decision 	in which 	to 	file 	exceptions 	in 	accordance with
Section 33580 	of 	the 	Board's 	Rules 	and Regulations. 	If no
party 	files 	timely 	exceptions, 	this 	proposed decision will 	become
a 	final 	order on July 19, 	1977, 	and a 	Notice 	of Decision will
issue 	from 	the 	Board.
Within 	10 workdays 	after 	the ·employer posts 	the 	Notice 	of
Decision, 	the 	employee 	organization 	shall 	demonstrate 	to 	the
Regional 	Director 	at 	least 	30 percent 	support 	in 	the 	custodial
unit 	stipulated 	to be 	appropriate by 	the 	parties .
The 	Regional 	Director 	shall 	conduct 	an 	election 	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 qualifies 	for 	the
ballot 	and 	the 	employer 	does 	not 	grant 	voluntary 	recognition .
Voluntary 	recognition 	requires 	majority proof 	of 	support 	in
all 	cases . 	See "sections 	3544 	and 3544.1 .
Date : 	July 	7, 	1977 ----------~-
Terry 	Filliman
Hearing Officer
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