Cantua Elementary School District (PERB 0295E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CANTUA ELEMENTARY SCHOOL 	DISTRICT,
Petitioner/Employer,
and
CANTUA FEDERATION 	OF 	TEACHERS,
LOCAL 4032, CFT/AFT, AFL-CIO,
Appellant/Employee 	Organization.
Case Nos. 	S-R-371
S-UM-138
PERB Decision No. 	295
March 18, 	1983
Appearances: 	Mary Beth de Goede, 	Attorney 	(Finkle 	& Stroup)
for 	Cantua Elementary School District; 	Vincent A. 	Harrington,
Attorney 	(Van Bourg, Allen, Weinberg 	& Roger) 	for Cantua
Federation of Teachers Local 4032, CFT/AFT, AFL-CIO.
Before Gluck, Chairperson; 	Jaeger 	and Burt, Members.
DECISION
BURT, Member: 	This case 	is before 	the Public Employment
Relations Board 	(hereafter 	PERB or 	Board) 	on exceptions 	filed
by 	the Cantua Federation of Teachers, 	Local 4032, 	CFT/AFT,
AFL-CIO 	(hereafter 	Federation) 	to 	the 	hearing officer's
proposed 	decision 	granting 	a 	modification of 	the 	classified
employees 	unit. 	That modification would 	remove 	the 	job
classification 	"transportation 	supervisor/building 	and
groundsperson" 	(hereafter 	transportation supervisor) 	from 	the
unit on 	the 	grounds 	that 	it 	is 	supervisory. 	The petition 	in
question was 	filed 	by 	the 	Cantua Elementary School 	District
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(hereafter District) 	on September 	22, 	1981 	and opposed 	by 	the
Federation.1
FACTS
The 	Federation 	was 	certified 	as 	the 	exclusive
representative 	of 	a 	unit 	of 	classified 	employees 	of 	the
District on May 	7, 	1980, 	by 	the PERB.2
On March 	20, 	1980, 	the District 	school board 	approved 	the
creation of 	the 	transportation supervisor 	position. 	Sometime
soon 	thereafter, prior 	to April 14, 	1980, Glenn Chaffin was
appointed 	the 	incumbent 	by 	Superintendent Dilts.
1PERB's 	Rules 	and 	Regulations 	are 	codified 	at California
Administrative Code 	sections 	31001 	et 	seq. 	At 	the 	time 	the
instant petition was 	filed, 	PERB rule 33261(b)(l) 	provided, 	in
pertinent 	part:
(b) 	A recognized 	or 	certified 	employee
organization, 	an employer, 	or both jointly
may 	file with 	the 	regional office 	a petition
for change in unit determination . 	. 	. 	:
(1) 	To delete 	classifications no
longer 	in 	existence 	or 	which 	by virtue
of 	changes 	in circumstances are 	no
longer 	appropriate 	to 	the 	established
unit. 	[Emphasis 	added.]
2The 	unit 	description 	is 	as 	follows:
INCLUDED; 	Bus Driver-Maintenance, Bus Driver/
Custodian, Custodian, Cook Helper, Clerk Typist,
and all Aides.
EXCLUDED: 	All Management, 	Supervisory and Confidential
employees 	including: 	Financial Secretary,
Cafeteria Manager, 	and Head Custodian.
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It 	is 	clear 	from 	the 	record 	and 	not 	contested 	that Chaffin
has 	at 	all 	times 	material herein 	lacked 	the authority 	to 	hire,
transfer, suspend, lay off, recall, promote, discharge, reward,
or 	discipline employees, 	or 	adjust 	their 	grievances, 	or 	to
effectively 	recommend 	such 	action.
Chaffin 	voted 	without challenge 	in 	the 	election which 	led
to 	the May 7, 	1980 	certification of 	the classified 	unit. 	He
subsequently 	served 	on 	the 	Federation's 	negotiating 	team 	for
the 	initial 	contract between 	the 	parties, 	with 	no objection
from 	the District. 	His 	terms 	and 	conditions of 	employment 	are
and 	have 	been 	established 	pursuant 	to 	the 	collective 	bargaining
agreement. 	On January 17, 	1981, 	Chaffin was 	informed by Dilts
that, 	pursuant 	to 	the contract, 	he 	was 	required to verify
absence due 	to 	illness 	by means of a doctor's 	note.
On February 	20, 	1981, 	Dilts 	counseled Chaffin 	regarding his
work 	schedule 	and 	duties, 	by memo. 	That memo set forth 	12
tasks 	which Chaffin 	had 	failed 	to 	perform. 	Each of 	these 	tasks
was 	a routine 	custodial or 	clerical 	function. 	In 	that 	same
memo, 	Dilts 	gave Chaffin 	the 	first of 	three 	detailed 	schedules,
each 	of 	which 	breaks 	Chaffin's 	entire 	workday 	into 	increments
and 	sets 	forth 	a given 	task 	for 	each 	such 	increment. 	None of
the duties 	described 	in 	the 	schedules 	is 	supervisory 	in
nature. 	The 	first 	six 	hours of 	his 	day 	are 	filled with
custodial 	tasks such as 	setting 	up cafeteria tables, 	with 	time
out 	to drive his 	regular 	bus 	route. 	The last 	three 	hours of
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his 	workday 	are 	taken 	up 	with 	general duties 	in 	the
transportation department such 	as maintaining, 	repairing, 	and
washing 	the 	buses 	and 	completing 	routine 	paperwork.
Thus, 	like 	the other 	employees 	who drive 	regular 	bus
routes, 	Chaffin performs custodial, 	grounds-keeping and
maintenance 	duties 	in 	addition 	to 	driving 	one 	regular 	route 	per
day.
The 	only 	possible 	indication of 	supervisory 	status 	on 	the
part of 	Chaffin 	is 	the 	limited 	extent 	to 	which 	he directs 	and
assigns 	work 	to 	the other 	drivers.
As 	noted 	above, 	each driver 	has 	a 	regular 	daily 	route. 	It
is 	clear 	that Chaffin does 	not 	have 	the 	authority 	to 	assign
these 	regular 	routes, 	which 	constitute 	the 	bulk of 	the 	drivers'
duties.
Although 	he does 	not 	assign drivers 	their 	regular 	routes,
Chaffin 	allegedly 	selects 	drivers 	for 	"extra-duty" 	assignments
such 	as 	field 	trips 	and 	athletic events. 	The 	evidence
indicates 	that Chaffin 	was 	told 	by Dilts 	to 	set 	up a system for
extra 	duty runs. 	It 	is 	not clear 	from 	the 	record whether 	Dilts
told Chaffin 	to 	establish 	a 	seniority system, 	or 	whether
Chaffin 	and 	the 	other 	drivers 	mutually 	agreed 	upon such 	a
system. 	Chaffin held a meeting 	of 	the 	drivers, 	told 	them 	that
extra 	duty 	assignments 	would 	be made 	on 	a 	rotational 	basis
according 	to seniority, and 	asked 	if 	there 	were 	any objections
to 	such 	a system. 	None of 	the drivers had any objection.
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It 	is 	not 	clear 	how often 	such 	extra 	duty 	assignments
arise. 	The 	record 	reflects 	that 	even 	the 	limited 	authority 	to
assign such 	extra work 	is 	subject 	to 	review 	by Dilts. 	On at
least 	one occasion, 	Dilts countermanded Chaffin's 	assignment of
an 	extra 	duty 	run.
Another 	incident 	allegedly 	establishing 	Chaffin's 	authority
to 	assign 	work 	involved a 	driver's 	request 	that 	she 	be 	allowed
to 	avoid 	driving 	on 	a particularly 	rough 	road 	on her 	regular
route. 	Upon her 	request, 	Chaffin 	told 	her 	not 	to drive 	the
road 	until 	it 	was 	repaired 	to 	her 	satisfaction, 	and 	to get his
permission 	before 	she 	resumed 	driving 	it. 	After 	parents of
children 	who 	lived 	on that 	road complained 	to 	the District, 	the
school board 	ordered 	that 	bus 	service 	be 	restored.
On one occasion, 	Chaffin 	instructed 	two drivers 	to 	switch
buses 	so 	that 	the 	driver 	with 	the 	greater 	number 	of 	students 	to
transport 	could drive 	the 	larger 	of 	two buses. 	Subsequently,
Dilts 	informed Chaffin 	that 	the 	driver 	who 	had 	been 	given 	the
smaller 	bus 	should not have 	to drive 	it. 	It 	is 	unclear 	whether
this 	resulted 	in negating 	the 	switch 	ordered 	by Chaffin, 	or
whether 	it 	was 	an admonition 	to 	avoid 	such 	reassignments 	in 	the
future.
The 	record 	further 	reflects 	that 	on one 	occasion Chaffin
instructed 	a 	driver 	to 	substitute 	on 	a 	regular 	route 	for
another 	driver 	who was 	unavailable 	that 	day.
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Chaffin 	prepared 	written 	performance 	evaluations 	on 	two
drivers 	in April of 	1980, 	prior 	to 	the certification of 	the
Federation 	as 	the exclusive 	representative. 	The 	record 	does
not 	establish 	whether 	such 	evaluations 	were 	relied 	upon by 	the
District 	for 	any 	purpose 	which 	affects 	the 	terms 	and 	conditions
of 	the 	drivers. 	The hearing 	officer 	held 	that 	evidence of
Chaffin's 	authority 	to 	evaluate drivers, 	without more, 	was 	not
itself 	an 	indicia 	of 	supervisory 	status. 	The 	District 	did 	not
except 	to 	this 	finding.
DISCUSSION
The 	hearing 	officer 	found, 	based 	upon Chaffin's 	authority
to 	assign extra 	duty runs, 	his 	order 	to 	two drivers 	to switch
buses, 	his 	assignment of 	a driver 	to substitute 	for 	another
driver, 	and 	his 	grant of permission to 	a driver 	to avoid a
rough 	road, 	that Chaffin 	had 	the 	authority 	to 	assign 	and direct
work within 	the meaning 	of 	subsection 3540.l(m), 	and 	thus 	that
he 	was 	a 	supervisor. 	He 	further 	held 	that 	while Chaffin 	had
the 	authority 	to 	perform 	such 	functions 	prior 	to 	the
Federation's 	certification, 	he didn't exercise 	that 	authority
until 	after 	the Federation's 	certification, 	and 	thus 	that
Chaffin's 	employment 	status 	changed 	after 	certification.
The 	Federation 	excepted 	essentially 	on 	three 	grounds:
1) 	Chaffin 	was 	not a supervisor 	at 	the 	time of 	the hearing, 	and
never 	has 	been a supervisor; 	2) 	if Chaffin was a supervisor 	at
the 	time of 	the 	hearing, 	he 	was 	a supervisor prior 	to
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certification as 	well, 	and 	thus 	the District 	has 	failed 	to show
changed 	circumstances 	as 	required 	by 	PERB's 	rules 	governing
unit modification; 	and 3) 	the 	collective 	bargaining 	agreement
between 	the Federation and 	the District, 	not due 	to 	expire
until June 	30, 	1982, 	constituted a 	bar 	to 	the 	filing of a unit
modification petition. 	Because 	we 	find 	that 	the District 	has
failed 	to demonstrate Chaffin's 	supervisory 	status, 	we 	shall
dismiss 	the 	instant petition on that ground, 	and 	thus 	find 	it
unnecessary 	to 	reach 	the Federation's 	additional 	arguments.
The 	record 	reflects 	that Chaffin, 	at 	all 	times 	pertinent
herein, 	has spent all of 	his workday either 	driving a bus,
maintaining 	and 	repairing 	the 	buses, 	or 	performing 	custodial
duties. 	In 	this 	regard, 	his 	job function 	is virtually
indistinguishable 	from 	that of 	the other 	drivers. 	He has
decided, 	on one 	occasion, 	which of 	two 	available drivers would
substitute 	for 	one who was unavailable, 	ordered 	two drivers 	to
switch 	buses 	to 	accommodate 	passenger 	load, 	acceded 	in a
driver's 	request 	that 	she 	refrain 	from driving 	a 	rough 	and
dangerous 	road, 	and 	established, 	with 	the mutual consent of 	all
other 	drivers, 	a seniority 	rotation 	for 	extra 	duty
assignments. 	Even as 	to 	these 	relatively 	insignificant
decisions, 	Chaffin 	has 	been 	countermanded 	by Dilts 	regarding
field 	trip 	assignments, 	told 	by Dilts 	that 	he 	should 	not 	have
ordered 	the 	bus 	switch, 	and 	overruled 	by 	the school board
regarding 	the 	cessation of 	bus 	service 	on a 	rough 	road.
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At 	the 	time 	the 	petition 	was 	filed, 	Chaffin 	had 	been 	in his
allegedly 	supervisory role 	for 	18 months. 	In all 	that 	time,
the 	above-discussed 	incidents 	are 	the 	only examples 	cited 	in
the 	record 	of 	even 	remotely 	supervisory 	conduct on his 	part.
Further, 	all of 	his 	terms 	and 	conditions of 	employment 	had 	been
set 	according 	to 	the 	collective 	bargaining 	agreement 	for 	some
17 	months 	prior 	to 	the 	filing 	of 	the 	petition.3 While not
dispositive of 	the 	issue 	by 	itself, 	this 	fact 	certainly
provides 	some 	indication 	that 	Chaffin 	remained 	a 	nonsupervisory
employee.
The 	transportation function 	is 	quite 	routine 	in 	this 	small
unit of 	five 	employees 	who 	are 	only 	engaged 	in driving 	duties
for 	a 	limited 	portion of 	their 	workday. 	Each drives 	a
pre-ordained route, 	fills 	in mileage 	records, 	sweeps out his or
her 	bus, 	and 	turns 	it 	in. 	Chaffin 	is 	not even on duty 	in 	the
3The District 	argues 	that 	it 	would be 	unfair 	to 	view
Chaffin's 	treatment 	as 	a 	unit 	employee 	as 	an 	indication 	that he
is 	nonsupervisory. 	This 	is 	so, 	argues 	the District, 	because 	it
was 	obligated 	to 	treat 	him as 	a 	nonsupervisory employee,
entitled 	to 	the benefits 	and 	subject 	to 	the constraints 	of 	the
contract, 	until 	such 	time 	as 	the Board 	itself 	granted 	unit
modification. 	This 	argument might 	have 	some 	appeal 	had 	the
District 	filed 	its 	unit 	modification 	petition 	soon 	after
changing Chaffin's status, 	rather 	than waiting 	5 months 	after
expiration of 	the 	12-month election bar 	to do 	so. 	Had 	the
District 	filed 	in a more 	timely manner, 	it would have been on
record 	as 	to 	its 	contention as 	to Chaffin's 	supervisory 	status,
and 	could more 	reasonably 	contend 	that 	it 	was 	only 	treating 	him
as 	a 	rank 	and 	file 	employee 	until 	PERB officially 	acknowledged
the change 	in his 	status.
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transportation 	area 	when 	the 	other 	drivers 	report 	for 	work. 	He
does 	not observe 	their 	performance, 	nor 	does he have 	the
authority 	to 	correct 	their 	performance 	should 	it 	be 	deficient.
The 	only 	"direction of 	work" 	engaged 	in by 	him occurs
sporadically, 	and 	merely 	involves 	adherence 	to 	established
policy. 	Even so, 	on at least 	two occasions 	noted 	in 	the
record, 	Dilts 	countermanded Chaffin's directions.
The 	hearing 	officer 	correctly 	notes 	that 	this 	Board 	has
adhered 	to 	the principle 	that 	supervisory 	criteria 	are 	to 	be
viewed 	in 	the disjunctive 	and 	thus 	that proof 	that 	an
individual possesses 	any 	one 	of 	the 	enumerated 	indicia 	is
sufficient. 	Sweetwater 	Union School District 	(11/23/76) 	EERB
Decision No. 	4.4 	However, 	the statute dictates 	that we must
also 	analyze 	purported 	supervisory 	authority 	to 	determine
whether 	exercise 	of 	such 	authority 	is 	of 	a 	routine or 	clerical
nature, 	or 	whether 	it 	requires 	the 	use of 	independent
judgment. 	In 	this 	case, 	we 	find 	that 	the purported assignment
and direction of 	work 	engaged 	in 	by Chaffin 	is 	sporadic, 	that
it 	amounts 	to 	nothing more 	than 	the 	routine 	application of
established policy 	or practice, 	and 	hence 	that 	it does 	not
require 	the 	use 	of 	independent 	judgment. 	Like 	the direction of
work 	engaged 	in 	by 	the 	school 	secretary/office manager 	found
4Prior 	to January 1, 	1978, 	PERB was 	known 	as 	the
Educational 	Employment 	Relations Board 	(EERB).
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nonsupervisory 	in Sweetwater, 	supra, 	it 	is insufficient 	to
render 	Chaffin 	a supervisor. 	We 	have 	held 	employees 	with 	far
greater 	apparent 	supervisory 	authority 	than 	that possessed 	by
Chaffin 	to be nonsupervisory. 	For 	example, 	in Oakland 	Unified
School District 	(4/14/78) 	PERB Decision No. 	50, 	we held
"supervisory 	custodians 	II 	through V" 	to 	be 	rank-and-file 	lead
persons, 	despite 	their 	authority 	to prepare schedules, make
routine work assignments, 	and 	evaluate 	employees. 	In
Foothill-DeAnza Community College 	District 	(3/1/77) 	EERB
Decision No. 	10, 	custodial 	foremen were 	held nonsupervisory
despite 	evidence 	that 	they 	prepared 	evaluations, 	could 	initiate
termination proceedings, 	participated 	in hiring 	panels 	and made
hiring 	recommendations, 	recommended promotions, 	and 	could
direct 	employees 	to 	correct 	deficient 	job performance.
On 	the 	basis of 	the 	record 	as 	a whole, 	we 	conclude 	that
Chaffin 	does 	not 	exercise 	independent 	judgment 	in assignment of
work 	nor 	does 	he 	in 	any 	other 	manner 	exercise 	or 	possess 	the
authority 	to 	exercise 	any 	of 	the 	statutory 	supervisory 	power
set forth 	in subsection 3540.1(m), 	and 	thus 	that he 	is 	not a
supervisor 	within 	the meaning 	of EERA. 	On 	that basis, 	we 	will
dismiss 	the 	instant 	petition.
ORDER
Upon 	the 	foregoing 	findings of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	the Public Employment
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Relations Board 	hereby ORDERS 	that 	the 	petition 	filed 	by 	the
Cantua Elementary School District 	in Case No. 	S-R-371, 	S-UM-138
be DISMISSED.
Chairperson Gluck 	and 	Member 	Jaeger 	joined 	in 	this 	decision.
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