Regents of the University of California Service (Lawrence Livermore National Laboratory) (PERB 0245HB)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
IN THE MATTER OF:
UNIT 	DETERMINATION 	FOR SERVICE
EMPLOYEES, 	LAWRENCE LIVERMOR
. . E
NATIONAL LABORATORY, 	OF THE
UNIVERSITY OF 	CALIFORNIA
PURSUANT TO CHAPTER 744 	OF THE
STATUTES OF 	1978 	(HIGHER
EDUCATION EMPLOYER-EMPLOYEE
RELATIONS 	ACT)
Case Nos.
SF-RR-1002-H et 	al.
PERB Decision No. 	245b-H
March 8, 	1983
Appearances; 	Philip E. 	Callis, Attorney for California State
Employees Association; 	Patrick J. 	Szymanski, 	Attorney 	(Beeson,
Tayer, 	Kovach 	& Silbert) 	for Brotherhood of Teamsters 	and Auto
Truck Drivers, Local No. 	70; 	Thomas E. Rankin, Attorney for
Laborers 	International Union, 	Local 1276; 	Jerrold C. 	Schaefer
and Judith Droz Keyes, Attorneys 	(Corbett, 	Kane, 	Berk & Barton)
and James N. 	Odle, 	Associate Counsel for 	the Regents of 	the
University 	of 	California.
Before: 	Tovar, Jaeger, Morgenstern and Burt, Members.*
DECISION
On September 	30, 	1982, 	the Public Employment Relations
Board 	(PERB or 	Board) 	issued 	a decision1 under 	the Higher
*Chairperson Gluck 	did 	not 	participate 	in 	this 	decision.
llunit	nit 	Determination 	for 	Service 	Employees 	of 	the
University 	of 	California 	Pursuant 	to Chapter 	744 	of 	the 	Statutes
of 	1978 	(Higher 	Education Employer-Employee 	Relations 	Act)
(9/30/82) 	PERB Decision No. 	245-H. 	See also 	the decision
concerning 	requests 	for 	reconsideration 	and 	judicial 	review,
Unit Determination 	for 	Technical Employees; 	Clerical Employees;
Service Employees; 	Professional Scientists 	and Engineers,
Lawrence Livermore 	National Laboratory; 	Professional Librarians;
and 	Professional 	Patient 	Care 	Employees 	of 	the 	University of
California 	Pursuant 	to Chapter 	744 	of 	the 	Statutes 	of 	1978
(Higher 	Education Employer-Employee Relations Act) 	(2/4/83) 	PERB
Decision Nos. 	241a-H and 	244a-H 	through 	248a-H.
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Education 	Employer-Employee 	Relations 	Act 	(HEERA)2 creating
two 	bargaining 	units of 	service 	employees 	at 	the University of
California 	(UC). 	One 	unit consisted of 	the 	service 	employees
at 	the Lawrence Livermore National Laboratory 	(LLNL), 	and 	the
second 	consisted 	of 	all 	other 	service 	employees 	throughout 	the
UC system. 	A hearing was 	held 	to 	determine which 	employees 	or
classifications 	should 	be 	excluded 	from 	the 	LLNL 	service 	unit
as 	supervisory.
In 	the 	LLNL 	service unit, 	the parties have 	stipulated 	to
the 	exclusion 	of 	the classification 	of 	Protective Service
Sergeant 	(Class Code 	655.2) 	as 	supervisory. 	This 	stipulation
is 	approved 	by 	the Board 	based 	upon 	the 	facts 	presented 	by 	the
parties 	in 	their 	stipulation dated July 	7, 	1982.3
2 The 	HEERA 	is 	codified 	at Government 	Code 	section 	3560
et 	seq. 	All 	statutory references 	are 	to 	the Government Code
unless 	otherwise 	indicated.
3 The 	Board 	does 	not 	specifically designate 	as 	supervisory
the 	employees 	the 	parties 	have 	agreed 	to exclude. 	In 	the State
Employer-Employee Relations Act, 	Phase 	III, 	Unit Determination
Proceeding 	(10/18/79) 	PERB Order No. 	Ad-79-S, 	the Board stated
that 	it:
. 	. 	. 	views the 	focus of the Phase III unit
determination proceedings 	to 	be a
determination 	of 	those 	rank 	and 	file
employees 	who 	are 	to 	be 	included 	in 	the
designated appropriate units. 	However, 	the
burden is on the 	. 	. 	. 	party which may seek
to 	exclude 	employees 	from units 	because 	of
alleged managerial, 	supervisory or
confidential 	status—to 	affirmatively 	justify
their 	exclusion. 	This 	can be done 	by 	showing
evidence 	of 	actual 	job requirements which
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Only one 	exclusionary 	issue 	remains 	to 	be 	addressed 	in 	the
LLNL 	service 	unit. 	This 	is 	the 	claimed 	supervisory status of
Vehicle 	Dispatcher 	Laurel 	Taylor.
DISCUSSION
The 	term 	"supervisory 	employee" 	is 	defined 	in 	section
3580.3.4 The 	language 	of 	this 	section 	essentially parallels
the definition of 	supervisory 	employee 	found 	in 	the 	State
would 	disqualify 	the 	subject 	employees 	from
placement 	in 	representation 	units
irrespective 	of 	which 	exclusionary 	category
those 	employees may fit.
Thus, 	the Board only approves 	the 	exclusion of 	the 	classification
from 	the 	unit, 	and not 	the specific 	basis 	for 	the exclusion.
4 Section 	3580.3 	provides:
"Supervisory 	employee" 	means 	any 	individual,
regardless 	of 	the 	job description or 	title,
having authority, 	in 	the 	interest of 	the
employer to hire, transfer, suspend, lay
off, recall, promote, discharge, assign,
reward, or discipline other employees, or
responsibility 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. 	With 	respect 	to
faculty or 	academic employees, 	any
department 	chair, 	head 	of 	a 	similar 	academic
unit or 	program, 	or 	other 	employee who
performs 	the 	foregoing 	duties 	primarily 	in
the 	interest 	of 	and 	on 	behalf 	of 	the members
of 	the 	academic department, 	unit or 	program,
shall 	not 	be 	deemed 	a 	supervisory 	employee
solely 	because of 	such duties; 	provided,
that 	with 	respect 	to 	the 	University of
California 	and Hastings College 	of 	the 	Law,
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Employer-Employee 	Relations 	Act 	(SEERA).5 In 	resolving 	the
exclusionary 	issue 	in dispute, 	we 	find 	no 	reason 	to depart 	from
the Board's 	conclusions 	regarding 	exclusionary 	issues 	set 	forth
in Unit 	Determination 	for 	the 	State 	of 	California 	Pursuant 	to
Chapter 	1159 	of 	the Statutes 	of 	1977 	(State 	Employer-Employee
Relations Act) 	(12/31/80) 	PERB Decision No. 	110c-S.6 	Thus,
there 	shall 	be 	a 	rebuttable 	presumption 	that
such 	an 	individual 	appointed 	by 	the employer
to 	an 	indefinite 	term 	shall 	be deemed 	to 	be
a supervisor. 	Employees 	whose 	duties 	are
substantially 	similar 	to 	those 	of 	their
subordinates 	shall 	not be 	considered 	to be
supervisory 	employees.
Supervisory 	employees 	have 	limited 	rights 	under 	HEERA as 	set
forth 	in 	section 	3580 	et 	seq.
5The SEERA is 	codified 	at 	section 	3512 	et 	seq.
"Supervisory employee," 	as 	defined 	in 	section 	3522.1 of
SEERA, 	does 	not 	contain 	the department 	chairperson 	language 	of
HEERA. 	Section 	3522.1 provides:
"Supervisory employee" 	means 	any 	individual,
regardless of 	the 	job description or 	title,
having 	authority, 	in 	the 	interest of 	the
employer, 	to hire, 	transfer, suspend, lay
off, recall, promote, discharge, assign,
reward, 	or discipline other employees, 	or
responsibility 	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. 	Employees whose 	duties 	are
substantially 	similar 	to 	those of 	their
subordinates 	shall 	not 	be 	considered 	to 	be
supervisory 	employees.
6Unit 	Determination 	for 	Employees 	of 	the 	California State
University 	and 	Colleges 	Pursuant 	to Chapter 	744 of 	the 	Statutes 	of
1978 	(Higher 	Education Employer-Employee 	Relations Act) 	(9/22/81)
PERB Decision No. 	173-H and 	(11/17/81) 	PERB Decision No. 	176-H.
4

we 	conclude 	that 	the 	burden of 	proving 	the 	exclusionary claim
at 	issue 	herein 	rests 	with 	the 	party 	asserting 	it.7
Stipulations of 	fact 	submitted 	by 	the 	parties 	are 	accepted as
conclusive. 	See 	additionally 	the 	detailed 	discussion 	regarding
the 	definition of 	supervisory employee 	and 	the 	functions of 	the
laboratory 	in 	Unit 	Determination 	for 	Professional Scientists
and Engineers, 	Lawrence Livermore National Laboratory, 	of 	the
University of California Pursuant 	to 	Chapter 	744 	of 	Statutes 	of
1978 	(Higher 	Education Employer-Employee 	Relations 	Act)
(3/8/83) 	PERB Decision No. 	246a-H, 	at p. 	8 et seq.
DISPUTED 	SUPERVISORY 	POSITION
UC contends 	that 	Laurel Taylor, 	a Vehicle Dispatcher 	(Class
Code 831.4) 	in 	the LLNL service 	unit, 	is a supervisor 	and
should 	therefore 	be 	excluded 	from 	the 	unit.
Taylor 	is 	one of 	two dispatchers 	in 	the Automotive Fleet
Division of LLNL. 	The 	supervisor 	of 	the 	entire 	division 	is
Robert Ynunza. 	Under 	him are 	the 	two dispatchers, 	six
full-time drivers 	and 	four 	part-time drivers. 	Taylor 	has 	the
same 	job classification as 	the 	other 	dispatcher. 	She 	receives
the 	same wages 	and 	benefits. 	She 	does work 	similar 	to 	the
other 	dispatcher 	part of 	the 	day 	and 	work 	similar 	to 	the
Facility Driver 	II 	classification 	another 	part 	of 	the 	day. 	She
7 See 	also 	In Re; 	The State 	Employer-Employee 	Relations
Act, 	Phase 	III, 	Unit Determination Proceeding 	(10/18/79) 	PERB
Order No. Ad-79-S.
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has 	additional 	responsibilities 	of 	record 	keeping 	and 	other
administrative 	functions. 	She 	testified 	that 	she 	spends 	six
hours 	a 	day 	either 	dispatching or 	driving 	and 	two hours 	tending
to her 	office duties.
The 	record 	indicates 	that Taylor 	has 	participated 	in 	the
hiring of 	two 	employees 	since 	she 	became dispatcher. 	She
reviewed 	applications, 	was 	present 	at 	the 	interviews 	conducted
by 	division 	supervisor 	Ynunza, 	and 	discussed 	the 	applicants 	with
Ynunza after 	the 	interview. 	Ynunza made 	the 	hiring 	decision.
Taylor 	writes 	performance 	evaluations 	and 	discusses 	these
evaluations 	with 	the 	employees 	of 	the 	division, 	but 	they 	are
reviewed, 	approved 	and 	signed 	by 	supervisor 	Ynunza. 	On 	at 	least
one 	occasion 	he 	changed 	an 	evaluation 	she 	prepared.
Taylor 	has 	the 	authority 	to 	issue 	oral 	warnings. 	However
these 	warnings 	are 	in 	the 	nature 	of 	corrective 	counseling 	and 	do
not 	constitute 	disciplinary 	action.
Work 	assignment 	and 	vacation 	scheduling 	are 	routine
functions 	based 	upon 	simple 	common 	sense 	guidelines. 	The 	record
does 	not 	indicate 	that 	the 	distribution of overtime 	is done 	in
other 	than 	a 	routine 	and 	clerical manner. 	Each driver 	may work
16 	hours 	a week overtime. 	If Taylor 	needed 	to ask 	someone 	to
work 	over 	16 	hours 	she would 	have 	to 	check 	with 	supervisor
Ynunza.
In 	the 	SEERA unit 	determination decision, 	the Board 	declined
to afford 	supervisory 	status 	to 	employees 	who 	participate 	in
hiring 	interviews 	and 	make 	recommendations 	where 	the 	ultimate
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decision 	to 	hire 	remains 	with 	their 	superiors.8 The
preparation 	of performance 	evaluations 	was 	not 	found 	to 	be
evidence 	of 	supervisory 	status where 	the 	disputed 	employee's
participation 	is 	subject 	to 	substantial 	review 	and
approval.9 The 	counseling 	function, 	though 	it 	involves
criticism 	and 	corrective 	effort, 	does 	not 	require 	exclusion
where 	it 	is conducted on an 	informal oral basis, 	since 	it does
not 	amount 	to 	the 	effective 	recommendation 	of 	discipline.10
Taylor's 	remaining 	duties 	do 	not 	qualify 	her 	for 	exclusion
as 	a 	supervisor 	because 	they 	are 	merely 	routine 	and 	clerical,
and 	do 	not 	require 	the 	use 	of 	independent 	judgment.11
Additionally, 	Taylor 	performs duties 	similar 	to 	those of 	her
subordinates 	for 	the 	great 	portion 	of 	her 	working 	day.1 2
Based on 	the 	foregoing 	facts 	and discussion, 	it must 	be
concluded 	that Taylor 	is 	not 	a 	supervisor 	whose 	obligation 	to
the 	employer 	outweighs 	her 	entitlement 	to 	the 	rights 	afforded
rank-and-file employees. 	Thus, 	employee Taylor 	should 	be
included 	in 	the LLNL service 	unit.
8 Unit Determination 	for 	the 	State 	of California, 	supra,
PERB D 	, 	at 	p. 	11.
9 Id., at p. 	14.
1 0 Id., at p. 12.
11Id., 	at pp. 	8-9.
12 Id., at pp. 	6-8.	.
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ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public Employment 	Relations Board ORDERS 	that:
(1) 	The 	classification of Protective 	Service 	Sergeant
(Class Code 	655.2) 	is 	excluded 	from 	the 	Lawrence 	Livermore
National 	Laboratory 	(LLNL) 	service 	unit 	according 	to 	the
stipulation 	of 	the 	parties 	and 	based 	upon 	the 	facts 	and 	reasons
stated 	therein.
(2) 	Vehicle Dispatcher 	Laurel Taylor 	(Class 	Code
831.4) 	is 	included 	in 	the 	LLNL 	service 	unit 	for 	the 	reasons
stated 	in 	the 	foregoing 	Decision.
(3) 	Any 	technical 	errors 	in 	this Order 	shall 	be
presented 	to 	the 	director 	of 	representation 	who 	shall 	take
appropriate 	action 	thereon 	in 	accordance 	with 	this 	Decision.
By 	the 	BOARD
CO	
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