State of California (Department of Personnel Administration) (California Union of Safety Employees) (PERB 0727S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA,
DEPARTMENT 	OF 	PERSONNEL
ADMINISTRATION,
Employer,
and
CALIFORNIA 	UNION OF 	SAFETY
EMPLOYEES,
Exclusive Representative.
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) 	Case No. S-UM-238-S
PERB Decision No. 	727-S
April 	3, 	1989
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Appearances: 	Michael P. 	White, 	General Counsel for California
Union of Safety Employees; 	Christine A. 	Bologna, 	Chief Counsel
for State of California, 	Department of Personnel Administration.
Before Porter, 	Craib, 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
California Union of Safety Employees 	(CAUSE) 	and the State 	of
California, 	Department of Personnel Administration 	(DPA) 	to the
proposed decision 	(attached hereto) 	of 	the 	PERB hearing officer.1
The hearing 	officer 	found 	that 	employees 	in the 	classification of
State Park Ranger II 	(Ranger II) 	who have 	subordinate 	employees
are properly 	excluded 	from 	the 	unit 	as 	supervisory under 	section
3522.1 of the Ralph C. 	Dills Act 	(Act).2 Accordingly, 	the unit
1 Donald Hoh, 	Sacramento Regional Director in 	1987, 	conducted
the hearing.
N2The Ralph C. 	Dills Act 	is 	codified at Government Code
section 3512, 	et seq. 	Government Code section 3522.1 	states:
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"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.
modification petition to 	add 	the 	classification of 	Ranger 	II 	to
State Bargaining Unit 	7 	(Unit 	7) 	was partially dismissed. 	The
hearing officer added employees 	in Ranger II positions, 	who did
not have 	subordinate employees, 	to Unit 	7.
The Board, 	after review of 	the 	entire record,adopts 	the
attached 	findings 	of 	facts 	and 	conclusions 	of 	the 	hearing
officer, 	and affirms his decision, 	consistent with the discussion
below.
PROCEDURAL 	HISTORY
In the 	original 	state 	bargaining unit determination made 	by
the Board itself 	in 	1979, 	the Board accepted a 	stipulation
between 	the 	DPA and the 	employee 	organizations 	involved 	in 	that
proceeding, 	which 	stipulation excluded 	the Ranger 	II
classification 	from the 	bargaining unit 	on the 	grounds 	that
employees 	in that 	classification were 	"supervisory 	employees"
within the meaning of 	section 	3522.1 	of 	the Act. 	The Board made
no 	specific 	findings 	regarding the 	"supervisory" 	duties 	of 	the
2
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classification, 	but rather merely accepted the parties'
stipulation. 	(State of California 	(1979) 	PERB Case No. 	ll0c-S,
at p. 	32.) 	CAUSE was not a party to the original unit
determination proceeding, 	nor to 	the 	stipulation which 	excluded
this 	classification 	from the bargaining unit. 	CAUSE was
certified as 	the 	exclusive representative 	for Unit 	7 	employees 	on
July 	13, 	1981, 	pursuant to a representation election held among
unit 	employees. 	CAUSE 	filed the 	instant petition on May 	2, 	1984,
seeking to 	add Ranger IIs to 	Unit 	7.
A hearing was held March 26, 	27, 	April 	1 and 	15, 	1986,
regarding disputed 	supervisory 	elements 	as 	defined 	by 	statute.
DISCUSSION
CAUSE 	excepts 	to the 	hearing 	officer's 	conclusion that
Ranger IIs were 	"supervisory 	employees" 	as 	defined 	in 	section
3522. 1 of the Act.
DPA excepts 	on the grounds 	that the appropriate 	legal
analysis 	is 	not one of res 	judicata but rather the 	showing
required 	to 	disturb 	a 	factual 	stipulation previously 	accepted 	by
the 	Board. 	DPA argues 	that 	the 	stipulation 	submitted by the
parties 	in the 	original 	unit determination which 	excluded 	the
Ranger 	II 	classification as 	"supervisory employees" 	is
conclusive.
The 	hearing officer, 	while 	recognizing that administrative
agencies 	like 	PERB 	"should be 	subject 	to 	a 	qualified 	or 	relaxed
w
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set 	of 	rules 	regarding 	res 	judicata,"3 found that 	the doctrine
did not apply to the 	instant 	case. 	The application of 	the
doctrine 	of 	res 	judicata 	requires 	that the 	issue decided 	in the
prior adjudication must be 	(1) 	identical with the one presented
in the action in question; 	(2) 	there must be a 	final 	judgment on
the merits; 	and 	(3) 	the party against whom the plea 	is 	asserted
must be 	a party or 	in privity with 	a party 	to 	the prior
adjudication. 	(Levy v.Cohen 	(1977) 	19 C.3d 	165 	[137 Cal.Rptr.
162] 	cert. 	den. 	434 U.S. 	833 	[54 L.Ed.2d 94, 	98 S.Ct. 	119].)
This 	Board 	engaged 	in original 	unit 	determination
proceedings 	whereby 	the 	original 	bargaining 	units 	were
determined, 	including the 	exclusion of 	certain classes 	of
employees 	from 	such units. 	These proceedings 	did not 	involve the
regular 	type of 	civil or administrative action brought 	against 	a
respondent-defendant party, 	and 	the 	judicial or administrative
adjudication of 	a 	disputed 	issue 	in 	such 	an action. 	The
determinations 	were 	based 	on various 	statutory 	criteria 	and
submitted 	information and data, 	including 	stipulations 	and
information 	obtained 	in 	unit 	determination hearings 	involving
various 	nonexclusive 	employee 	organizations. 	We do 	not view 	such
administrative proceedings 	as 	being 	similar to 	or 	equating with 	a
prior 	judicial 	adjudication of 	a disputed 	issue 	in an action
between two parties.
3Bank of America v. 	City of Long Beach 	(1975) 	50 Cal.App.3d.
882 	[124 Cal.Rptr. 256].
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. ..
Furthermore, 	CAUSE was 	neither a party nor 	in privity to a
party which was 	involved 	in the 	original 	stipulation.
Accordingly, 	we 	affirm the hearing 	officer's 	conclusion that 	the
criteria 	for a 	finding of res 	judicata was 	not met.
Regarding 	DPA's 	assertion that 	the 	stipulation 	is
conclusive, 	we note that in determining an appropriate unit, 	the
Board 	is 	statutorily 	obligated 	to 	consider the 	criteria 	set 	forth
in 	section 	352l(b) 	of the Act.4 The 	stipulation 	in the original
unit determination proceeding, 	standing alone, 	did not provide
enough 	information to 	adequately 	address 	CAUSE'S 	petition 	for
unit 	modification.
4Section 3521(b)(l) 	states:
(b) 	In determining an appropriate unit, 	the
board 	shall take 	into 	consideration all 	of
the 	following 	criteria:
(1) 	The 	internal and occupational
community of 	interest 	among the
employees, 	including, but not
limited to, 	the extent to which
they 	perform 	functionally 	related
services 	or work 	toward 	established
common goals; 	the history of
employee 	representation 	in 	state
government 	and 	in 	similar
employment; 	the extent to which the
employees 	have 	common 	skills,
working conditions, 	job duties, 	or
similar 	educational 	or 	training
requirements; 	and the extent to
which the 	employees 	have 	common
supervision.
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We 	affirm 	the 	hearing 	officer's 	conclusions 	and 	supporting
analysis 	that 	employees 	in the 	classification of 	Ranger 	II 	who
have 	subordinate 	employees 	are 	excluded 	from the 	unit 	as
supervisory employees pursuant to 	section 3522.1 	of the Act.
ORDER
Based on the 	foregoing, 	the unit modification petition 	is
DISMISSED with respect 	to 	the 	addition of 	those 	employees
classified as 	State 	Park Ranger 	II 	who have 	subordinate
employees. 	Any employees 	in the classification of 	State Park
Ranger 	II who do 	not have 	subordinate 	employees 	are hereby 	added
to State Unit 	7.
Members 	Porter and Camilli 	joined 	in this 	Decision.
Member Craib's 	concurrence and dissent begins 	on page 	7.
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Member Craib, 	concurring and dissenting: 	I 	concur in the
result reached by my colleagues 	that 	the 	Ranger 	II 	classification
must be 	excluded from Unit 	7. 	However, 	I must dissent 	from the
majority's 	refusal 	to apply res 	judicata principles 	to 	this 	case.
The 	original 	bargaining unit determination was 	made 	by 	the
Board 	itself 	in 	Unit 	Determination 	for 	the 	State 	of 	California
(SEERA) 	(1980) 	PERB Decision No. 	110c-S. 	In making its
determination to exclude 	the 	Ranger 	II 	classification, 	the 	Board
relied 	on a 	stipulation 	filed by the 	parties 	to 	the 	original 	unit
determination hearings. 	In the 	stipulation, 	the parties agreed
that 	specific 	classes 	of 	employees 	would be 	excluded 	from 	Unit 	7
as either managerial, 	confidential, 	or supervisory. 	The Ranger
II 	classification was 	specifically excluded as 	supervisory. 	In
its 	decision, 	the 	Board 	itself 	expressly 	adopted 	the 	stipulated
exclusions 	as 	to all 	classifications. 	"[U]ncontested
stipulations 	of 	fact 	submitted by the 	parties 	are 	accepted 	as
conclusive." 	(Ibid. 	at p. 	1) 	Additionally, 	in the portion of
the decision addressing Unit 	7, 	the 	Board 	stated:
[t]he parties 	stipulated to 	facts 	supporting
the 	exclusion of 	classifications 	set 	forth 	in
Appendix B. 	The 	Board accepts 	the
stipulation of 	the 	parties 	and holds 	that
those 	classifications 	are 	properly 	excluded
from the unit.
(Ibid. at p. 	32)1
1In Appendix B to the Board's decision, 	the Ranger 	II
classification was 	listed as 	excluded. 	(See Appendix B to 	State
of California, 	supra, 	at p. 	B-96.)
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Unit 	7 	employees were 	represented at 	the 	initial 	unit
determination hearings 	by the 	State 	Fire 	Marshall's Association,
the 	California 	State 	Police Association, 	and the 	California 	State
Employees' 	Association. 	CAUSE did not participate 	in the
original unit determination hearings. 	However, 	the California
State 	Police Association, 	which did participate 	in the 	1980
hearings, 	was 	a member organization of the Coalition of
Associations 	and 	Unions 	of 	State 	Employees 	(also known 	as
"CAUSE"),2 which was the current CAUSE'S predecessor in interest.
CAUSE was 	certified as 	the 	exclusive 	representative 	for 	Unit 	7 	in
July 	1981 	pursuant 	to 	a representation election.
The 	threshold issue which must be 	addressed 	in this 	case 	is
whether the 	Board's 	adoption of 	the parties' 	stipulations
regarding 	the 	excluded 	classifications 	should 	preclude
relitigation 	of 	the 	unit 	determination 	absent 	changed
circumstances. 	The 	hearing officer 	and the majority reject 	the
state's 	res 	judicata argument.3 As 	the majority 	correctly
states, 	the application of res 	judicata requires 	that the 	issue
decided 	in 	the 	prior adjudication be 	identical 	to 	the 	one
2 The 	Coalition of Associations 	and Unions 	of 	State 	Employees
filed 	a 	prior petition 	to 	reopen 	the 	exclusionary proceedings 	in
Unit 	7 	in order to present new and additional 	evidence 	regarding
excluded 	classifications. 	The 	Board rejected 	the 	petition 	and
held 	that 	"[a]11 	parties 	to 	this 	stage 	of 	the proceedings were
afforded a 	full 	and 	complete 	opportunity 	to participate 	and
present their case." 	(State 	Park Peace Officers 	(1980) 	PERB
Decision No. 	138-S.)
While	'while 	the 	State 	appears 	to have 	retreated 	from a 	strict 	res
judicata analysis, 	the 	substance of its 	exceptions 	is 	the
preclusive 	effect 	of 	the 	prior 	Board determination.
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presented 	in the 	current action; 	that there be 	a 	final 	judgment
on the merits; 	and that 	the party against whom the plea 	is
asserted be 	a party or 	in privity to a party 	in 	the prior
adjudication. 	(Majority decision at p. 	4.)
Res 	judicata has 	long been utilized by the 	courts 	to
preclude parties 	from relitigating the 	same 	issues where 	a 	final
determination has 	been made. 	The 	Board has 	not previously
expressly 	addressed 	the 	preclusive 	effects 	of 	prior 	Board
representation decisions 	on 	a 	subsequent 	petition 	for 	unit
modification. 	However, 	in a case 	in which an employer refused to
bargain with the 	certified representative, 	and defended 	its
actions 	with 	a 	claim that the 	unit was 	improperly 	constituted,
the 	Board held 	that:
[i]n the 	absence 	of 	the presentation of newly
discovered 	or 	previously 	unavailable 	evidence
or 	special 	circumstances 	relitigation of
PERB's 	unit determination 	is 	not warranted.
PERB's 	unit determination 	is 	therefore
binding precedent.
(Redondo Beach City School 	District 	(1980) 	PERB Decision No. 	140,
at p. 	3.) 	Cases have also arisen where 	original 	unit
determinations 	have 	not 	included 	particular 	employees 	and 	in 	a
subsequent petition for unit modification, 	the 	Board has
permitted 	the 	nonrepresented employees 	to be 	added 	to 	the 	unit.
In one 	such case, 	the Board reasoned that 	since 	the employee
organization 	did 	not 	originally 	seek 	to 	represent 	those
employees, 	the unrepresented employees 	should not be 	forever
barred 	from representation. 	To deny 	such 	representation would
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preclude 	those 	employees 	from 	exercising 	statutory rights.
(El Centro School District 	(1979) 	PERB Order No. 	Ad-51.)
The 	Board has 	also had 	occasion 	to 	grant 	unit modification
petitions where 	an 	initial 	unit determination by 	the 	Board placed
a particular 	classification of 	employees 	in a 	larger unit. 	On a
subsequent petition to modify and 	establish a 	separate 	unit, 	the
Board held 	that:
[t]he Board's 	previous decision is 	binding
only to the 	extent 	that 	circumstances 	and
Board precedent remain the 	same. 	Unit
determinations 	are 	not 	intended to be 	fixed
for 	all 	time 	and where no representative 	is
in place, 	it is appropriate to consider a
claim that 	circumstances 	have 	changed.
(Regents 	of the University of California 	(1986) 	PERB Decision
No. 	586-H, 	at p. 	6.) 	The Board, 	then, 	concluded that the
circumstances 	had 	changed 	and permitted modification.
The 	"relaxed" 	res 	judicata 	standard 	applied 	by 	the 	hearing
officer 	and referred to by 	the 	majority 	springs 	from 	Hollywood
Circle 	where 	the 	California 	Supreme 	Court 	stated:
The 	key to a 	sound 	solution of problems 	of
res 	judicata 	in administrative 	law is
recognition that 	the 	traditional 	principle 	of
res 	judicata 	as 	developed 	in the 	judicial
system 	should be 	fully applied 	to 	some
administrative action, 	that the principle
should not be 	applicable 	to other
administrative 	action, 	and that 	such
administrative 	action 	should be 	subject 	to 	a
qualified 	or relaxed 	set 	of 	rules 	concerning
res 	judicata.
(Hollywood Circle, 	Inc. 	v. 	Department of Alcohol 	Beverage Control
(1961) 	55 Cal. 	2d 728, 	732, quoting 2 Davis, Administrative Law,
568.) 	The 	Hollywood Circle 	court 	then addressed 	specific
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instances 	where 	agencies 	should refrain 	from 	applying 	or modify
res 	judicata principles. 	However, 	the 	court 	fully applied res
judicata because 	the 	function 	of 	the 	agency in 	that 	case was 	"the
purely 	judicial 	one 	of 	reviewing 	another 	agency's 	decision 	to
determine whether the 	decision conforms 	to the 	law and 	is
supported by 	substantial 	evidence." 	(Ibid.)
The 	court in Bank of America v. 	City of Long Beach 	(1975) 	50
Cal.App.3d 	882 	rejected 	the 	application 	of 	res 	judicata
principles to an 	"administrative" 	decision. 	However, 	in that
case, 	the prior 	"adjudication" 	was merely the 	continued renewal
of a 	license 	over 	22 	years. 	There had never been a 	formal
hearing 	or 	any 	"litigation." 	A more 	appropriate 	analysis 	under
those 	circumstances would have 	been 	the 	application 	of 	estoppel
to bar 	a challenge 	to the 	license renewal.
Professor 	Witkin 	has 	thoroughly 	addressed 	administrative 	res
judicata. 	His review of California case 	law indicates 	the
following exceptions 	to 	the 	full 	application 	of res 	judicata
principles: 	1) 	where the agency is 	acting in its 	regulatory
capacity; 	2) 	where the agency acts 	in excess of its 	jurisdiction;
3) 	where the agency has no 	subject matter 	jurisdiction; 	4) 	where
the 	agency 	seeks 	to apply res 	judicata 	to a prior decision; 	5)
where 	the 	agency decision is 	not 	intended as 	a 	final 	judgment 	on
the merits; 	6) 	where the 	agency never had the 	opportunity to
determine the 	legal 	issue; 	and 7) 	where the agency was not acting
in 	its 	quasi-judicial 	capacity and the 	decision 	is 	not 	a result
11

of an adjudicatory proceeding. 	(7 Witkin, 	California Procedure
3d, 	Judgments, 	sec. 	209, 	at 646 	(Witkin).)
None of these exceptions are appropriate here. 	However, 	the
majority appears 	to be 	arguing 	that the 	Board was 	not 	acting 	in
its quasi-judicial, 	but rather in its regulatory, 	capacity when
it 	states 	that
[t]hese 	proceedings 	did not 	involve 	the
regular 	type 	of 	civil 	or 	administrative
action 	brought 	against 	a 	respondent-defendant
party, 	and the 	judicial 	or administrative
adjudication 	of 	a disputed 	issue 	in 	such an
action. 	The 	determinations were based on
various 	statutory 	criteria 	and 	submitted
information and data, 	including 	stipulations
and 	information 	obtained 	in 	unit
determination 	hearings 	involving 	various
nonexclusive 	representatives. 	We do not view
such 	administrative proceedings 	as 	being
similar 	to or equating with a prior 	judicial
adjudication 	of 	a disputed 	issue 	in an 	action
between two parties.
(Majority Decision at p. 	4.)
This 	analysis 	is 	erroneous 	in 	several regards. 	Most
disturbing 	is 	the 	incredible 	conclusion 	that unit 	determinations
by 	the 	Board 	after 	hearings 	before 	a 	hearing 	officer 	are 	not
similar to a prior adjudication. 	Unit determinations 	are
generally 	hotly 	contested 	and 	require 	the 	Board 	to 	resolve
numerous 	factual 	disputes 	concerning the 	appropriateness 	of
certain 	classifications 	of 	employees 	in a particular unit.
Indeed, 	in State of California, 	supra, 	PERB Decision No. 	ll0c-S,
in a 	92 	page decision, 	the Board itself was required to
adjudicate numerous 	disputed 	classifications 	in 	9 	units. 	Of
course 	the 	Board 	applied 	statutory 	criteria 	to 	information
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submitted in hearings, 	that 	is 	this 	Board's 	function not only in
representation cases but. in virtually all matters 	presented to
the 	Board. 	The majority's 	conclusion that these proceedings 	are
not 	similar 	to prior adjudications 	is 	not 	supported by any
authority 	whatsoever.
Therefore, 	we must address 	the propriety of 	stipulated
exclusions. 	The 	issue 	of 	stipulations must be 	analyzed under
that prong of 	the 	res 	judicata 	analysis which 	focuses 	on 	the
final 	judgment on the merits. 	The 	hearing officer 	rejected res
judicata because, 	in his view, 	the matter had not been fully
litigated. 	This 	reasoning 	ignores 	both the purpose 	of 	the
parties' 	stipulations 	and the Board's precedent on 	stipulations.
First, 	courts 	have always held that a 	judgment entered 	into
voluntarily by 	consent 	or 	stipulation 	is 	as 	conclusive 	and 	final
as a judgment rendered after trial. 	(7 Witkin, 	sec. 	219(c), 	at
p. 	656.) 	To do otherwise would 	seriously undermine 	the
conclusive 	effects 	of any 	judgment where 	a party consented. 	If 	a
party 	stipulates 	to 	facts 	supporting 	a 	particular 	legal
conclusion, 	that 	party 	should be 	barred 	from relitigating 	absent
a 	showing 	of 	improper 	conduct.
Furthermore, 	the 	Board has 	expressly delineated when
stipulations 	of 	fact will 	be 	adopted by the 	Board 	in 	support of
an order.
Henceforth, when 	[the Board] 	has 	jurisdiction
in a representation case, 	it will examine
stipulations 	between the 	parties 	to determine
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if 	the 	stipulations 	are 	consistent with 	the
EERA[4] 	or established Board policies.
(Centinela Valley Union High 	School 	District 	(1978) 	PERB 	Decision
No. 	62, 	at p. 	4.) 	This policy, 	which was in effect prior to the
unit determination hearings 	in 	1980, 	reversed prior 	Board policy
of 	automatically 	accepting 	stipulations 	in 	order 	to 	facilitate
representation determinations. 	(See 	also Atascadero 	Unified
School 	District 	(1981) 	PERB Decision No. 	191 	(Board affirms ALJ's
acceptance 	of 	stipulation 	as 	supported by 	sufficient 	facts).)
Given this 	charge 	of responsibility to 	inquire 	into 	the 	basis 	for
a 	stipulation 	to 	facts 	regarding 	appropriate 	unit 	determinations
and 	the 	fact 	that 	no 	evidence was 	introduced by CAUSE 	to 	indicate
that the 	Board neglected its 	duty, 	the 	stipulation as 	to 	facts
supporting the 	exclusion of 	the 	Ranger 	II 	classification 	should
be 	conclusive. 	The 	fact that 	the parties were willing to
stipulate 	to 	certain excluded 	classifications 	does 	not 	change 	the
adversarial 	nature 	of the proceedings.
The majority 	also 	implies 	that 	the 	decision 	should not 	be
conclusive 	because 	the various 	employee 	organizations 	at 	the 	unit
determination hearings were 	nonexclusive 	representatives. 	This
analysis 	ignores 	the 	statutory and regulatory requirements 	in
effect at 	the 	time 	of the 	initial 	unit determinations. 	There
were no 	certified exclusive representatives 	at 	the 	time 	of 	the
The 	Educational 	Employment Relations Act 	(EERA) 	is 	codified
at Government Code 	section 	3540 	et 	seq. 	and is 	a companion
statute 	to the Ralph C. 	Dills Act. 	There 	is no reason to hold
that 	the 	Board's 	policy 	regarding 	stipulations 	should be 	any
different under the 	Dills Act.
1. . . . . . .
14

original 	unit determinations. 	Elections 	for representation
purposes 	could not be 	held until 	appropriate 	units were
determined by the 	Board. 	(See 	PERB Regulations 	41000-41270
(repealed).)5 There 	are no longer regulations 	under the 	Ralph C.
Dills Act for initial unit determinations. 	Thus, 	the 20 units
approved by 	the 	Board 	itself 	during the 	initial 	unit
determinations 	appear 	to be 	all 	encompassing. 	Under EERA and the
Higher Educational 	Employer-Employee 	Relations Act6 , 	however,
unit 	determinations 	are 	still 	regularly made 	under 	regulations
similar to those 	formerly applicable to the Dills Act. 	(See,
e.g., 	PERB Regulations 	33050-33490, 	51030-51340.) 	Under the
majority's 	approach, 	since 	there 	is never an exclusive
representative 	certified at the 	time 	of unit determinations, 	a
Board determination would never be 	binding. 	Such 	an 	analysis
would always 	preclude 	the 	application of 	res 	judicata 	to 	initial
unit determinations, 	even to 	a 	subsequently certified exclusive
representative which participated 	in 	the 	unit 	determination
process.
In addition, 	the regulations which were 	in effect at the
time 	of 	these 	unit determinations 	provided 	that 	any 	employee
organization that 	obtained a 	30 	percent or more proof 	of 	support
of 	a proposed unit 	could petition 	for recognition. 	(See 	PERB
Regulation 41010, 	subd, 	(b) 	(repealed).) 	By allowing such
SPERB 	Regulations 	are 	codified 	in 	the 	California
Administrative Code, 	title 	8, 	section 31001 	et seq.
'HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
15
'PERB
HEERA

organizations 	to petition 	for recognition, 	subject to the
employer's 	objection, 	the 	Board authorized those 	organizations
with 	30 	percent 	or more 	support to represent those 	unit members
for purposes 	of unit determination proceedings.7 Thus, 	the 	fact
that 	the 	unit members were 	represented by nonexclusive
organizations 	is 	not determinative 	since 	the 	Board 	expressly
provided 	for 	such representation. 	Absent 	any 	showing 	that 	there
were 	actions 	which 	improperly 	excluded 	certain 	classifications,
we 	must 	assume 	that 	the 	regulations 	were 	properly 	applied.
Furthermore, 	there 	is nothing in the record to 	suggest that 	the
interests 	of 	those 	nonexclusive 	representatives 	differed 	from
that of CAUSE. 	In other words, 	the organizations representing
potential 	unit members 	at 	the unit determination hearings would
have 	had the 	same 	impetus 	as 	CAUSE 	to represent 	as 	many unit
members 	as possible.
Finally, 	the 	issue of privity must be 	addressed. 	In order
to bind CAUSE, 	it must have been a party or in privity to a party
to the 	initial 	unit determinations. 	The majority makes 	the 	bald,
unsupported 	statement that 	"CAUSE was 	neither 	a 	party 	nor 	in
privity 	to 	a 	party which was 	involved 	in 	the 	original
stipulation." 	(Majority decision at p. 	5.) 	While CAUSE was 	not
7It 	is 	unclear 	from the regulations whether 	each
organization which 	sought 	to 	be 	an 	exclusive 	representative 	had
to present proofs 	of 	support of 	30 	percent of 	the proposed unit.
It 	is 	my belief 	that a 	fair reading of 	the 	former regulations
would 	so require. 	The 	regulations 	do provide 	separately 	for
challenges 	to petitioning organizations. 	(See 	PERB 	Regulation
41071 	(repealed).)
16

a party to the original proceeding, 	in my estimation, 	it was 	in
privity with the 	parties 	to 	the 	unit determination. 	Professor
Witkin 	is 	instructive 	on when 	a 	subsequent 	party 	should 	be 	bound
by a prior decision. 	"In general, 	it may be 	said that 	such
privity 	[to warrant preclusion] 	involves 	a person 	so 	identified
in 	interest with another 	that he 	represents 	the 	same 	legal
right." 	(7 Witkin, 	sec. 	287, 	at p. 	724 	(emphasis in original,
citations omitted).) 	In the 	case before the Board, 	the employees
involved were 	represented by 	a 	number 	of 	employee 	organizations
at 	the 	unit determination hearings. 	These 	organizations 	had a
similar, 	if not identical, 	interest in assuring that employee
organizations 	represent 	the 	largest number 	of 	employees 	possible.
In this 	sense, 	they would have represented the 	"same 	legal 	right"
as 	CAUSE 	in assuring that 	the 	Ranger 	II 	classification was
included. 	Furthermore, 	as discussed earlier, 	member
organizations 	of 	CAUSE'S 	predecessor were parties 	to 	the 	original
determination. 	In addition, 	the term 	"party" 	is 	somewhat
inadequate when referring to 	unit determinations. 	The 	"real
party in interest" 	is really the employees 	affected, 	not the
employee 	organizations. 	In this regard, 	the employees were
parties 	to 	the 	original 	determination.
This 	is 	not to 	say that 	in all 	situations where 	a prior
organization 	represented 	employees 	that 	relitigation 	of 	unit
determinations will 	be barred. 	Due process rights must be
protected. 	The 	non-party must 	have 	had 	an 	"identity or 	community
of 	interest with, 	and adequate representation by" 	the party 	in
17

the prior litigation. 	(7 Witkin, 	sec. 	288, 	at p. 	725.)
Additionally, 	the 	non-party 	should reasonably have 	expected 	to 	be
bound by the prior adjudication. 	(Ibid.) 	Nothing in this 	record
suggests 	that 	the 	employee 	organizations 	inadequately represented
the employees 	in the Ranger 	II 	classification or that CAUSE, 	when
elected exclusive representative, 	if not earlier, 	should not have
expected to be 	bound by the 	Board's 	unit determination. 	Indeed,
with the 	Board's 	rejection of 	CAUSE'S 	predecessor's 	request 	to
reopen the modification hearings, 	CAUSE was 	on constructive
notice 	that 	it would be 	so bound. 	(See 	State 	Park Peace
Officers, 	supra, 	PERB Decision No. 	138-S and discussion supra at
footnote 	2.)
Even though a prior determination may be 	conclusive, 	unit
modification may be 	specifically 	allowed by regulation. 	The
Board's 	regulations 	expressly deal with the 	standards 	to be
applied when parties 	seek unit modification. 	(See 	PERB 	Regulation
32781.) 	Unfortunately, 	there is a gap in the regulations.
Regulation 	32781, 	subdivision 	(a)(l) 	provides 	that a petition to
modify may be 	filed 	"[t]o 	add 	to 	the 	unit 	unrepresented
classifications 	or positions 	which 	existed prior 	to 	the
recognition 	or 	certification 	of 	the 	current 	exclusive
representative 	of 	the unit." 	There 	is 	no requirement 	for 	changed
circumstances 	to modify the 	existing unit. 	Regulation 	32781,
subdivision 	(b)(l), 	on the other hand, 	provides 	for the 	filing of
a 	modification 	petition 	"[t]o 	delete 	classifications 	or 	positions
no 	longer 	in existence 	or which by virtue 	of 	changes 	in
18

circumstances 	are 	no 	longer appropriate 	to 	the 	established unit."
(Emphasis added.) 	Regulation 32781, 	subdivision 	(b)(5), which
was 	added 	later 	as 	a 	limited 	exception to the requirement 	of
changed 	circumstances, 	provides 	for the 	filing of a modification
petition:
[t]o delete 	classification(s) 	or position(s)
not 	subject to 	(1) 	above which are not
appropriate 	to 	the 	unit because 	said
classification(s) 	or position(s) 	are
management, 	supervisory, 	confidential, 	or not
covered by EERA, 	HEERA or 	SEERA provided
that:
(A) 	The petition is 	filed 	jointly
by the 	employer 	and 	the 	recognized
or 	certified 	employee 	organization,
or
(B) 	There is not in effect a lawful
written 	agreement 	or memorandum 	of
understanding, or
(C) 	The petition is 	filed during
the 	"window period" 	of 	a 	lawful
written 	agreement 	or memorandum 	of
understanding 	as 	defined 	in 	these
regulations 	. . . .
While Regulation 32781, 	subdivision 	(a)(l) 	contains no
express 	requirement of 	changed circumstances, 	such a broad
interpretation would 	permit 	unit 	modification 	petitions 	to 	be
filed even 	after 	express 	determinations 	by the 	Board 	that 	the
classification at 	issue 	should be 	excluded 	from 	the 	unit. 	A more
appropriate 	interpretation would be 	that 	additions 	are 	only
possible where 	the 	"unrepresented 	classifications 	or positions"
were 	not previously the 	subject 	of 	an express 	exclusion.
Therefore, 	when employees were never 	subject to consideration 	for
19

a 	particular 	bargaining unit, 	they 	could be 	added without 	a
showing of changed circumstances. 	(See, 	e.g., 	El Centro, 	supra,
PERB Decision No. 	Ad-51 	and discussion, 	supra, 	at p. 	9.) 	But
where 	there 	has 	been prior 	adjudication of 	a unit determination,
and express 	exclusion of 	a particular 	classification, 	the
appropriate 	standard 	should be 	one 	of 	changed 	circumstances, 	such
as 	that 	for deleting certain classifications 	from a unit. 	(See,
supra, 	Regulation 32781, 	subd. 	(b)(l).) 	PERB Regulation 32781,
subdivision 	(b)(5), 	the exception to the 	changed circumstances
requirement of Regulation 32781, 	subdivision 	(b)(1), 	is
appropriate because inclusion of managerial, 	supervisory, 	or
confidential 	employees 	is 	improper under 	the 	Dills Act.
Therefore 	a 	lower 	standard or 	showing is 	proper. 	The 	converse 	is
also 	appropriate. 	To add 	classifications which have 	previously
been 	determined 	to 	be 	supervisory potentially 	conflicts 	with 	the
Act, 	absent a changed circumstances 	standard.8 Therefore, 	since
CAUSE 	failed to 	introduce 	any evidence 	that the duties 	of 	the
Ranger 	II 	classification have 	changed 	since 	the 	original 	unit
determination or that there were 	inherent 	flaws 	in 	the 	initial
proceeding, 	the 	petition 	for unit modification 	should dismissed.
SThis 	analysis 	would not 	affect 	the 	recently 	proposed 	PERB
Regulation 32781, 	subdivision 	(g). 	This proposed regulation
provides 	for 	a 	one-time-only 	"window period" 	during which 	a 	state
employer may 	file 	a petition 	to 	transfer 	classifications 	or
positions 	from one 	represented established unit 	to 	another. 	Such
transfers would not be 	subject 	to a 	showing of 	changed
circumstances.
20
'This

I 	am quite troubled by the 	specter 	of 	relitigation of 	all
the 	initial 	state unit determinations. 	There were over two
hundred 	(200) 	stipulated exempt classifications, 	all 	subject to
unit modification petitions 	if 	the 	original 	unit determinations
are not considered final. 	Furthermore, 	the majority's 	analysis
is 	not restricted to the 	state unit determinations. 	Instead, 	its
broad 	rejection of 	res 	judicata principles 	to 	unit 	determinations
would permit 	unbridled 	relitigation 	of 	any 	unit 	determination by
the Board. 	Consequently, 	the majority's 	analysis 	is 	not only
legally indefensible but, 	in practical terms, 	extremely
shortsighted.
21

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
STATE OF CALIFORNIA, 	DEPARTMENT OF
PERSONNEL 	ADMINISTRATION,
Employer,
and
CALIFORNIA UNION 	OF 	SAFETY
EMPLOYEES,
Exclusive 	Representative.
)
Case No. 	S-UM-238-S
(S-SR-7)
PROPOSED 	DECISION
(3/30/87)
Appearances: 	William R. Williams, 	Jr., 	and Michael P. 	White,
for 	California Union of 	Safety Employees; 	Christine 	Bologna 	for
State of California, 	Department of 	Personnel Administration.
PROCEDURAL 	HISTORY
This 	case 	arises 	from 	a 	unit 	modification 	petition 	filed 	by
the California Union 	of 	Safety Employees 	(CAUSE) 	under 	section
32781(a)(l) 	of 	the Regulations 	of 	the Public Employment
Relations Board 	(Board).1 In its petition, 	CAUSE seeks 	to
add 	to 	State 	Bargaining 	Unit 	7 	(Protective 	Services 	and 	Public
1PERB 	Regulations 	can 	be 	found 	at 	California
Administrative Code, 	title 8, 	part 	III 	(section 31001
et seq.). 	Regulation 32781(a) 	reads 	in relevant part:
A 	recognized 	or 	certified 	employee
organization may 	file with 	the 	regional
office 	a 	petition 	for 	unit modification:
(1) 	To 	add 	to 	the unit unrepresented
classifications 	or 	positions 	which 	existed
prior 	to 	the 	recognition 	or 	certification of
the current 	exclusive 	representative 	of 	the
unit.
..
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
1
)
)
)
)
)
)
)
)
)
)
__ 	)

Safety) 	the position of State Park Ranger 	II 	(Ranger 	II).
CAUSE 	alleges 	that 	the 	91 	positions 	in 	this 	classification
should 	not 	be 	excluded 	from the 	coverage 	of 	the Ralph C. 	Dills
Act 	(Act)2 as 	supervisory employees, 	and 	that 	those 	positions
are 	thus 	appropriately 	included 	in 	State Unit 	7. 	The 	State 	of
California, 	Department 	of 	Personnel 	Administration 	(State)
opposes 	the petition, 	contending 	that 	the 	classification of
Ranger 	II 	is 	appropriately excluded 	from the unit 	as
supervisory under 	section 	3522.1 	of 	the Act.
Previously, 	in the original 	state bargaining 	unit
determinations made by the Board 	itself 	in 	1979, 	the 	Board
accepted 	a 	stipulation 	between 	the 	State 	and 	the 	employee
organizations 	involved 	in 	that 	proceeding, 	which 	excluded 	the
Ranger 	II 	classification 	from the 	bargaining 	unit 	on 	the
grounds 	that 	employees 	in 	that 	classification were 	"supervisory
employees" 	within the meaning 	of 	section 3522.1 	of 	the Act.
The 	Board 	made 	no 	specific 	findings 	regarding 	the"supervisory"
duties 	of 	the 	classification, 	but 	rather merely 	accepted 	the
parties' 	stipulation. 	State of California 	(1979) 	PERB Case
No. 	ll0c-S, 	at page 32. 	CAUSE was 	not 	a 	party to 	the original
unit determination proceeding, 	nor 	to 	the 	stipulation which
excluded 	this 	classification 	from the 	bargaining 	unit. 	CAUSE
was 	certified 	as 	the 	exclusive 	representative 	for Unit 	7
2 The Ralph C. 	Dills Act 	is 	codified 	at 	section 3512,
et 	seq., 	of 	the Government Code.
22

employees 	on July 13, 	1981 pursuant 	to 	a 	representation
election 	held 	among 	unit 	employees.
Extensive 	investigation was 	conducted 	in this 	case 	prior 	to
hearing. 	Each 	party produced 	numerous 	and 	lengthy declarations
and 	related materials 	in support 	of 	its 	position. 	The 	record
prior 	to 	hearing 	contained 	nearly 	2,000 	pages 	of 	materials,
including declarations, 	job descriptions, 	organizational
charts, 	job specifications 	and qualifications, 	and excerpts
from 	administrative 	and 	operations 	manuals 	from the 	State
Department 	of 	Parks 	and Recreation. 	From those materials, 	the
undersigned 	determined 	that 	the 	record 	contained 	sufficient
facts 	essentially not 	in dispute 	for 	a determination 	of 	the
section 3522.1 	supervisory elements 	of 	"hire", 	"transfer",
"suspend", 	"layoff", 	"recall", 	"promote", 	"discharge", 	"reward"
and 	"discipline".
However, 	with 	regard 	to 	the 	statutory criteria 	of 	"assign,"
"direct," 	"adjust 	grievances," 	and 	"substantially 	similar
duties," 	as well 	as 	the statutory modifiers 	of 	"effective
recommendation" 	and 	the 	requirement 	of 	"use 	of 	independent
judgment" 	regarding 	those 	criteria, 	the undersigned 	found 	that
the 	evidence 	contained 	substantial 	questions 	of 	fact which
could 	be 	resolved 	only by 	an 	evidentiary 	hearing.
A 	hearing 	regarding 	these 	supervisory 	elements 	was 	held 	on
March 26, 	27, 	April 	1 and 15, 	1986. 	At hearing, 	the parties
stipulated 	that 	the 	testimony 	of 	the 	limited 	number 	of
3

witnesses who 	testified was 	representative of 	the duties 	of 	all
91 	of 	the positions 	at 	issue herein.
After numerous delays, 	including 	a 	change 	in CAUSE 	legal
representatives 	in this matter, 	briefs were 	filed by both
parties 	in 	late October, 	1986, 	and the case went under
submission 	at 	that 	time.
FINDINGS 	OF 	FACT
The 	employees 	at 	issue 	are employed 	by the Department 	of
Parks 	and Recreation 	(DPR), 	and generally work in one or more
of 	the 	102 	State parks 	or 	state 	recreation areas 	in
geographically 	separated 	and 	diverse 	areas 	throughout 	the
state. 	Organizationally, 	the DPR's 	state park system is
geographically divided 	into 	six 	regional 	areas, 	which 	are
further 	subdivided 	into 	51 	districts, 	each headed 	by 	a 	district
superintendent. 	Those districts 	are 	further 	divided 	into 	areas
headed 	by 	an Area Manager. 	The 	positions 	at 	issue 	here 	provide
the next 	organizational 	level 	Generally, 	Ranger 	II's 	are 	the
highest 	level 	on-site DPR 	employee 	in 	a 	particular 	park 	sector
or 	recreation area. 	Among the 91 positions, 	5 possess 	a
working title of Chief Ranger, 	63 	are sector supervisors, 	16
are shift 	supervisors, 	and 7 	are program supervisors. 	The
variances 	in working 	titles 	generally 	relate 	either 	to 	the 	size
or 	the 	function of 	the particular 	park or 	recreation 	area
involved.
With 	limited exception, 	each Ranger 	II 	has 	a 	varying 	number
of 	subordinates 	reporting 	to 	him/her. 	These employees
44

generally 	are 	classified 	as 	State 	Park Ranger 	I 	(Ranger 	I)
State 	Park Ranger 	Intermittent, 	State 	Park Technician, 	and
seasonal 	employees. 	The 	number 	of 	subordinates 	reporting 	to
the Ranger 	II 	varies 	both 	by 	the 	size 	of 	the 	park(s)
administered 	by 	that 	Ranger 	II, 	and 	by 	the 	season 	of 	the 	year,
since 	park use 	is 	generally 	greater 	from April 	through 	October
than 	it 	is 	the 	remainder 	of 	the year.
Each 	Ranger 	II 	is 	generally 	responsible 	for 	the 	daily
administration, 	control, 	and coordination of 	the 	functions 	and
services 	provided 	in 	the park(s) 	under 	that 	Ranger's
jurisdiction. 	Direction of 	these 	activities 	is 	guided 	by
general 	policies 	contained 	in 	both 	district 	and 	departmental
administrative 	and 	procedural 	manuals. 	Because 	of 	the 	small
staffs 	and 	hours 	of 	necessary coverage 	at 	the 	parks, 	both
Ranger 	II's 	and 	their 	immediate 	subordinate 	Ranger 	I's 	are
often 	expected 	to 	work 	independently 	under 	the 	departmental
guidelines 	contained 	in 	the manuals, described 	above. 	Normally,
Ranger 	II's 	work 	the 	day 	shift, 	and 	those 	Ranger 	I's 	who 	work
the 	night 	shift 	usually do 	so without 	any 	superior 	officer 	on
duty 	at 	the 	same 	time.
Ranger 	II's 	may 	participate 	in 	an 	interview panel 	and 	may
make 	recommendations 	for 	the 	hiring 	of 	permanent 	subordinate
employees, 	but 	any 	such 	recommendations 	are 	reviewed 	and 	hiring
decisions 	for 	permanent 	employees 	are 	made 	at 	organizational
levels 	well 	above 	that 	of 	the 	Ranger 	II. 	They may 	similarly
make 	recommendations 	for 	the discipline, 	suspension, 	or
5
5

discharge of 	permanent 	subordinates, 	but 	normally their 	role 	is
limited 	to 	serving 	as 	an 	investigator 	to 	gather 	facts 	for 	any-
subsequent 	discipline 	or 	discharge 	decision made 	by higher
authority. 	The 	results 	of 	such 	investigations 	are
independently 	reviewed 	and 	investigated 	by 	higher 	level
department 	employees, 	and 	disciplinary decisions 	are 	made 	by
departmental 	employees 	in positions 	no 	lower 	than 	that 	of
District 	Superintendent. 	Ranger 	II's 	do 	"counsel" 	permanent
subordinate 	employees 	for 	minor 	infractions 	of 	departmental
regulations, 	but 	such 	"counseling" 	is 	normally first discussed
with 	the 	Ranger 	II's 	immediate 	supervisor, 	who may determine
whether 	such 	counseling 	is 	necessary.
Ranger 	II's 	have 	no 	role 	in 	layoff 	and 	recall 	of 	permanent
subordinate 	employees. 	Determinations 	in those 	areas 	are made
by 	higher 	authority 	based 	upon 	departmental 	guidelines.
Likewise, 	permanent 	transfer 	decisions 	are made 	by either 	the
Regional 	Director 	or District 	Superintendent, in 	accordance with
the provisions 	of 	the parties' 	collective bargaining 	agreement
and departmental 	policies. 	However, 	Ranger 	II's may be
consulted 	by 	higher 	authority 	before 	permanent 	transfer
decisions 	are made, 	to 	ascertain the effect 	of 	any transfer
decision upon 	the 	operations 	of 	a 	particular 	park.
In the 	areas 	of 	promotion 	and 	reward, 	the Ranger 	II 	serves
as 	the 	first-line 	evaluator 	for 	all 	of 	his/her 	subordinate
employees. 	Employee 	evaluations 	may 	address 	job 	performance
and development, 	promotional 	readiness, 	and training needs.
. . . . . . . .. 40
6

Evaluations 	completed 	by Ranger 	II's 	are 	reviewed 	and 	signed 	by
the Area Manager, 	who may 	add 	information 	and 	comments 	to 	the
evaluation. 	Ranger 	II's 	may 	also 	approve merit 	salary
increases 	consistent 	with 	procedures 	outlined 	in 	department
administrative manuals. 	Ultimate 	promotional 	decisions 	are
made 	by higher 	departmental 	authority, 	and 	are 	based 	only 	in
part 	upon 	the 	employee 	evaluations 	initiated by Ranger 	II's.
The parties' 	collective 	bargaining 	agreement 	calls 	for
employees 	to 	go 	to 	their 	"immediate 	supervisor" 	at 	the
"informal" 	step of 	the grievance procedure, 	and the DPR has
designated 	the 	Ranger 	II 	as 	that 	"immediate 	supervisor." 	The
role of 	the Ranger 	II 	is 	to 	attempt 	to deal with the problem
involved 	before 	it 	becomes 	a 	formal 	grievance. 	The Ranger 	II
may recommend 	or make 	adjustments 	in 	employees' 	complaints 	at
this 	level, 	if 	such 	adjustment 	is 	previously approved 	by higher
level 	department management. 	Any disagreements 	at 	this 	level
a r e 	referred 	to 	the 	District 	Superintendent, 	the 	departmental
representative 	at 	the 	first 	formal 	level 	of 	the 	grievance
procedure. 	There has 	been 	little 	actual 	involvement 	of
Ranger 	II's 	in 	the 	informal 	step 	of 	the 	grievance procedure.
Ranger 	II's 	prepare 	the monthly work 	shift 	schedules 	for
their 	subordinates 	and 	coordinate 	the work 	functions 	in 	the
various 	parks 	under 	their 	jurisdiction. 	Their 	determinations
of 	shifts 	to 	be 	filled 	are 	based upon 	such 	known 	factors 	as
past 	visit 	use 	patterns 	and 	staff 	level 	changes. 	Ranger 	I's
and 	other 	permanent 	employees 	then bid 	upon 	the 	available
'
7
7

shifts 	by 	seniority 	in 	accordance with 	procedures 	outlined 	in
the parties' 	collective bargaining 	agreement. 	The Ranger 	II
may 	thereafter 	fill-in 	or 	rearrange 	the monthly 	schedule 	if
there 	are 	gaps 	in park coverages 	needed. 	Any disputes 	over
monthly 	scheduling 	are 	normally 	resolved 	by 	the 	Chief 	Ranger.
Functional duties, 	such as 	resource, 	administrative or
interpretative duties, 	are generally 	rotated on 	a yearly basis
among 	the 	subordinate Ranger 	I's. 	Assignment 	of 	individual
tasks 	by the Ranger 	II 	to 	his 	subordinates 	is 	normally
controlled 	by 	the 	functional 	area which 	the 	task 	involves.
Normally, 	Ranger 	II's 	do 	not meet with 	their 	subordinates
on 	a daily basis 	to make 	assignments. 	Rather, 	Ranger 	I's 	are
assigned 	projects within 	their 	functional 	areas 	and 	given
deadlines 	for 	completion of 	those projects. 	However,
Ranger 	II's 	may 	assign 	additional 	tasks 	to 	Ranger 	I's 	without
prior 	approval 	of 	higher 	authority, 	unless 	such 	assignments
would 	have 	a manpower 	or 	budgetary 	impact. 	Requests 	for
short-term 	additional 	manpower 	are 	channeled 	through 	the 	Chief
Ranger, 	who 	also 	makes 	training 	assignments which may 	impact
upon 	the 	availability of 	Ranger 	I's 	in 	a 	particular 	park.
Ranger 	I's 	normally 	perform 	their 	daily work 	functions
without 	specific 	direction 	from Ranger 	II's. 	Indeed,
Ranger 	II's 	often do not 	communicate daily with Ranger 	I's, 	who
may work different 	shifts 	or 	at 	different work 	locations 	than
the Ranger 	II. 	Ranger 	II's 	review daily 	logs 	and 	incident
reports 	of 	Ranger 	I's, 	and check to 	determine 	the Ranger 	I's
8

compliance with work deadlines. 	Generally, 	however, 	Ranger 	I's
are expected 	to work 	independently, 	and 	little 	time 	is 	spent 	by
the Ranger 	II's 	in 	observing 	their 	performance.
Ranger 	II's 	are 	not 	involved 	in 	approval 	of 	long-term
vacation 	requests 	for 	their 	subordinates. 	Such vacation
scheduling 	is 	determined 	by 	seniority under 	the 	shift 	bidding
system previously described. 	Short-term 	leave 	requests 	for
periods 	of 	one or 	two days, 	however, 	may be granted or denied
by the 	Ranger 	II's 	based 	upon 	their 	judgment 	regarding whether
operational 	needs 	can withstand 	the manpower 	shortage 	such
time-off 	creates. 	Ranger 	II's 	may 	also 	approve 	sick 	leave 	and
require doctor's 	excuses without 	checking, 	but 	any decision 	to
deny 	sick 	leave 	or 	to 	require employees 	to 	go 	onto 	the DPR's
sick 	leave 	reporting 	system 	is 	made 	only 	after 	consultation
with 	the Area Manager.
Ranger 	II's 	may 	also 	authorize 	overtime without 	prior
approval, 	based upon 	their view of 	the necessity for 	overtime
work. 	Such decisions may be cleared with 	the Area Manager, 	if
he/she 	is 	available, 	but 	in his/her 	absence, 	Ranger 	II's
approve 	overtime 	based upon 	their 	own 	assessment 	of 	its
necessity. 	Ranger 	II's 	may 	also 	allow 	subordinates 	to 	report
extra hours worked 	as overtime, 	or 	to 	take such hours 	as
compensatory time off 	(CTO). 	Like 	short-term vacation
requests, 	the decision of 	the Ranger 	II 	concerning 	an employee
request 	to 	take CTO 	is 	based upon his/her 	determination 	of
operational 	needs. 	Ranger 	II's 	may also 	require 	subordinates
EST.. ...'
9

to 	take 	CTO 	time when upper 	limits 	on 	accumulated CTO 	time 	set
by higher 	authority 	are 	reached. 	These decisions 	are 	generally
made 	by Ranger 	II's 	without 	prior 	consultation with 	higher
authority.
Ranger 	II's 	may 	also 	call 	out 	employees 	from off-duty 	based
upon 	their view of 	the necessity of 	such 	callout. 	Decisions 	on
whether 	to 	call 	out 	employees 	are 	normally made 	by the
Ranger 	II 	based upon his/her 	experience 	and 	expertise, 	and 	are
made without 	prior 	approval 	from the Area Manager. 	Once 	that
decision 	is made, 	the decision on who 	to call 	out 	is usually
pre-set, 	and 	actual 	callouts 	may be made 	by County Sheriff
dispatchers 	or 	by Ranger 	I's.
Ranger 	II's 	have 	input 	into 	the 	amount 	of 	budget 	allotted
to 	the 	parks within 	their 	jurisdiction. 	They 	suggest 	the
budgetary 	amount 	needed 	for 	their 	operation 	to 	the Area
Manager, 	who 	then makes 	a 	recommendation to 	the District
Superintendent. 	Once the budget 	for his/her 	area 	is
determined, 	the Ranger 	II 	administers 	that budget 	and
determines 	the 	level 	of 	coverage to 	be provided. 	The budgeted
amount 	includes 	both 	full-time 	and 	seasonal 	costs. 	The 	amount
of 	cost 	incurred 	by Ranger 	I's 	overtime work 	lessens 	the 	budget
amount 	available 	for 	seasonal 	employee utilization, 	and 	the
Ranger 	II 	is 	required to 	balance 	those competing 	needs. 	The
Ranger 	II 	may also 	increase 	the number 	of 	seasonal 	employees 	if
the 	budgeted 	amount 	can 	absorb 	those 	costs.
10

Ranger 	II's 	are paid 	at 	a 	level 	approximately 	10 	percent
higher 	than Ranger 	I's, 	and 	receive 	fringe 	benefit 	amounts
above 	those 	earned 	by Ranger 	I's 	in 	the 	amounts 	received 	by
employees 	classified 	by the 	state 	as 	supervisors. 	They 	also
attend 	regular 	supervisory meetings 	on 	a 	district-wide 	basis.
Ranger 	II's 	have 	full 	supervisory 	authority 	over 	seasonal
employees. 	They determine 	the need for 	seasonals 	and, 	if 	the
need exists, 	recruit, 	interview and hire them. 	Similarly, 	they
may evaluate, 	discipline 	and/or discharge 	seasonal 	employees.
Ranger 	II's 	also 	establish 	schedules 	and 	assign work 	to
seasonals, 	and often delegate 	the 	actual 	direction of 	their
work to 	their 	subordinate Ranger 	I's. 	These decisions
concerning 	seasonals 	are made 	by Ranger 	II's without 	any 	review
by 	or 	consultation with 	higher 	authority.
Seasonal 	park 	aides 	employed 	by DPR 	and 	supervised 	by 	the
Ranger 	II's, 	however, 	have been found by the Board 	to be
excluded 	from the 	coverage 	of 	the Act 	because 	they 	are 	not
"civil 	service employees." 	State of 	California 	(1981) 	PERB
Decision 	ll0d-S 	(Attachment 	1 	- 	Recommendation 	on Remand 	Re
Board's Order, 	Paragraph 4, 	PERB Decision No. 	ll0c-S).
The 	record 	contains 	wide variations 	in 	the Ranger 	II's
estimates 	of 	the 	proportion of work time 	spent 	in duties which
are 	"substantially 	similar" 	to 	those 	of 	their 	subordinate
Ranger 	I's. 	Those estimates 	range 	from 0 	percent 	to 	85 	percent
of 	that work 	time. 	Based upon examination 	of 	the 	entire
record, 	I 	find 	that 	the 	average Ranger 	II 	generally spends
•
11

between 45 	and 	55 	percent 	of 	his work time 	in 	such
"substantially 	similar" 	duties. 	These 	duties 	normally 	include
front 	line 	law enforcement, 	citation writing, 	occasional 	park
patrol shifts, 	public interaction, 	medical emergencies, 	mutual
aid 	to 	other 	public 	agencies, 	and 	service 	as 	backup 	to 	the
Ranger 	I 	in 	arrest 	situations. 	Both 	administrative 	and 	front
line 	law enforcement 	duties 	increase 	during 	the 	park's 	peak
season, 	and Ranger 	II's 	are more 	likely to 	perform patrol
duties 	in manpower 	shortage 	situations. 	Additionally, 	Ranger 	I
and 	II 	positions 	require 	the 	same minimum qualifications. 	The
only difference 	in Ranger 	II 	qualifications 	is 	that 	that
position 	requires 	two years 	of 	experience 	performing 	the 	duties
of 	a Ranger 	I.
Unlike the Ranger 	II, 	Ranger 	IVs do not, 	inter 	alia, 	review
reports 	of 	subordinates, 	administer 	the 	allotted budget, 	grant
time off, 	complete monthly work schedules, 	or 	attend
supervisory meetings 	with 	higher 	level 	DPR 	employees.
Additionally, 	Ranger 	II's 	do 	not 	normally perform the 	rotated
functional 	duties 	described 	above which 	are 	part 	of 	the 	duties
of 	the Ranger 	I 	classification.
ISSUES
1. 	Is 	the 	Board's 	decision 	in State of 	California 	(1980)
PERB 	Decision No. 	ll0c-S, 	which 	approved 	the parties'
stipulation 	to 	exclude Ranger 	II's 	from State Unit 	7 	as
supervisory employees, 	res 	judicata 	for 	the 	instant 	proceeding,
requiring 	dismissal 	of 	the 	petition?
12
'

2. 	If not, 	do the duties 	of 	the Ranger 	II 	classification
exclude 	that 	classification 	from the 	coverage 	of 	the Act 	as
supervisory employees 	under 	section 	3522.1 	of 	the Act?
DISCUSSION
I. 	THE RES JUDICATA 	ISSUE
In the original 	State unit determination, 	State of
California 	(1980) 	PERB Decision No. 	ll0c-S, 	the Board
determined that 	the position of Ranger 	II, 	inter 	alia, 	should
be 	excluded 	from State Unit 	7 	as 	supervisory based upon 	a
stipulation 	reached 	by the 	State 	and 	employee 	organizations
involved 	in 	that 	proceeding. 	The Ranger 	II 	classification was
one 	of 	several 	excluded 	from Unit 	7 	in Appendix B 	of 	that
decision. 	With 	regard to 	those exclusions, 	the Board 	stated:
The 	parties 	stipulated 	to 	facts
supporting 	the 	exclusion 	of 	classifications
set 	forth 	in Appendix B. 	The 	Board 	accepts
the 	stipulations 	of 	the 	parties 	and holds
that 	those 	classifications 	are 	properly
excluded 	from the 	unit.3
In 	accepting 	the 	stipulations, 	the 	Board 	approved 	the
exclusion of 	those classifications 	from the unit, 	but made no
specific 	findings 	regarding 	the 	supervisory duties 	of 	the
classifications 	excluded, 	including 	that 	of Ranger 	II.
The 	common 	law principle 	behind 	res 	judicata 	is 	that 	a
particular 	dispute 	has 	been 	litigated 	and decided, 	and 	the
interests 	of 	finality 	and 	consistency 	require 	that 	the matter
3 State of California 	(1980) 	PERB Decision No. 	ll0c-S 	at
page 32.
13

not 	be 	litigated 	again, 	but 	that 	the prior decision be
followed.4 However, 	determination of 	the 	appropriate
application 	of 	that 	doctrine 	to 	any 	subsequent 	case 	requires
affirmative answers 	to three questions: 	1) 	was 	the issue
decided 	in 	the 	prior 	adjudication 	identical 	with 	the 	one
presented 	in the 	action in question; 	2) 	was 	there 	a 	final
judgment 	on the merits; 	and 	3) 	was 	the party against whom the
plea 	is 	asserted 	a 	party or 	in privity with 	a 	party to 	the
prior 	adjudication.Un	5
In 	addition, 	while 	the 	Board has 	not 	previously 	addressed
with 	specificity 	the 	elements 	necessary 	for 	a 	res 	judicata
finding, 	California 	courts 	have 	indicated 	that 	many of 	the
actions 	of 	administrative 	agencies 	like 	PERB 	"should 	be 	subject
to 	a 	qualified 	or 	relaxed 	set 	of 	rules 	concerning 	res
judicata. 6
Based upon 	the 	record, 	and 	after 	taking 	official 	notice 	of
the documents 	contained 	in 	the 	Board's 	decisions 	in 	PERB
Decision Nos. 	110(c) 	and 110(d) 	and their attachments, 	it 	is
4 See University of 	California 	(1986) 	PERB Decision No.
586-H; 	Los Angeles Unified School 	District 	(1984) 	PERB Decision
No. 405.
5 Pacific Maritime Association v. 	California 	Unemployment
Insurance Appeals Board 	(1965) 	236 Cal. 	App.2d 325 	[45 Cal.
Rptr. 	892]; 	Bernhard v. 	Bank of America 	(1942) 	19 Cal.2d 807,
813 	[122 P.2d 892].
6 Bank of America v. 	City of 	Long 	Beach 	(1975) 	50 	Cal.3rd
882, 	124 Cal.Rptr. 	256; Hollywood Circle. 	Inc. v. Dept, 	of
Alcoholic Beverage Control 	(1961) 	55 Cal.2d 728, 	732; 	13
Cal.Rptr. 	104; 	361 P.2d 712.
"6
. . .. . ..
14

apparent 	that 	CAUSE was 	neither 	a 	party nor 	in privity to 	a
party which was 	involved 	in 	the 	original 	stipulation. 	Neither
CAUSE 	nor 	its 	predecessor, 	the Coalition of Associations 	and
Unions 	of 	State Employees, 	are 	listed 	in the extensive
appearance 	sheets 	which precede 	the 	Board's 	actual 	decisions 	in
PERB Decision Nos. 	110(c) 	and 110(d). 	Additionally, 	no CAUSE
petition 	to 	represent 	any State employees was 	on 	file with 	the
Board 	at 	the 	time of 	the hearing 	in those 	cases. 	That
organization was 	not, 	therefore, 	involved 	in the hearing which
resulted 	in 	the 	stipulation 	in 	question.
The 	State 	argues 	that 	since CAUSE 	representatives 	were
included 	on 	a 	list 	of 	parties 	receiving 	service 	of 	the 	Board's
state unit determinations, 	CAUSE had 	full 	notice 	of 	those
proceedings 	and participated 	in 	them. 	In 	support 	of 	its
position, 	the 	State 	attached 	to 	its 	brief 	copies 	of 	service
sheets 	in matters 	relating 	to 	those unit 	determinations,
showing 	that 	CAUSE 	had 	received 	the 	Board 	decisions 	in. . .those
cases. 	However, 	careful 	review of 	those documents 	shows 	that
CAUSE was 	served with Board 	decisions 	relating 	to 	State 	unit
determinations 	only 	after 	the 	Board 	issued 	its 	ll0c-S
exclusionary decision on December 	31, 	1980. 	Curiously, 	the
State's 	documentation not 	only 	fails 	to 	include 	service 	upon
CAUSE of 	the 	Board decision 	in PERB Decision No. 	ll0c-S, 	it
completely 	ignores 	the 	fact 	that 	the 	exclusionary hearings
themselves were concluded 	in January of 	1980, 	and 	fails 	to
specifically 	address 	whether 	CAUSE was 	involved 	in 	those
15

hearings, 	which occurred 	nearly 	a year 	before 	the documentary
evidence 	of 	service 	upon 	CAUSE 	provided 	by 	the 	State.
In 	addition, 	under 	the court 	findings 	that 	the 	technical
rules 	of 	res 	judicata 	should 	be 	"relaxed" 	in 	administrative
proceedings, 	it would be 	inappropriate 	to 	apply those 	rules 	"to
the 	letter" 	under 	the facts 	of 	this 	case. 	It 	is 	obvious 	that
the 	Board's 	1979 	decision did 	not 	involve 	full 	litigation 	and
reasoned 	determination of 	the 	supervisory 	status 	of
Ranger 	II's, 	since no 	specific 	findings were made 	concerning
the 	actual 	supervisory duties 	of 	the classification. 	Arguably,
the Board's decision, 	in the absence of 	full 	litigation, 	does
not 	constitute 	"final 	judgment 	on 	the merits" 	under 	those
technical 	criteria.
Based upon the 	above, 	I 	find 	that CAUSE was 	not 	a party to
the 	original 	stipulation which 	excluded 	Ranger 	II's 	from 	State
Unit 	7, 	and 	that 	the Board's 	decision on 	the Ranger 	II's
supervisory 	status 	was 	not 	"fully 	litigated." 	For 	both 	of
these 	reasons, 	the 	technical 	criteria 	necessary for 	a 	finding
of 	res 	judicata 	do 	not exist, 	and 	the original 	Board decision
is 	not 	dispositive 	for 	the 	instant 	case. 	The 	State's Motion to
Dismiss 	on this 	basis 	is 	therefore denied.
II. 	THE 	SUPERVISORY ISSUE
A. 	THE 	GENERAL LEGAL 	FRAMEWORK
Section 3522.1 	of 	the Act 	provides 	as 	follows:
"Supervisory employee" 	means 	any 	individual,
regardless 	of 	the 	job description or 	title,
having 	authority, 	in the 	interest 	of 	the
. . . . ."
16

employer, 	to hire, 	transfer, 	suspend,
layoff, 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.
In 	its 	initial 	State unit determination decision, 	State of
California 	(1980) 	PERB Decision No. 	ll0c-S, 	the Board
formulated 	certain 	general 	standards 	for 	the determination 	of
supervisory 	status 	under 	the 	above 	definition, 	and 	then 	applied
those 	standards 	to 	numerous positions 	at 	issue 	in 	that 	case.
Under 	the Act, 	the burden of 	proving 	that 	a 	certain
classification 	should 	be 	excluded 	from the 	unit 	is 	on 	the 	party
asserting 	that 	claim.7 Additionally, 	the 	supervisory 	indicia
of 	section 3522.1 	are to be 	read 	in the disjunctive. 	Where 	an
employee meets 	one 	of 	the 	specific 	criteria 	of 	that 	section,
and performs 	no 	bargaining unit work, 	that 	employee 	is 	to 	be
excluded from the unit.8
Supervisory 	authority will 	not 	be 	found where 	actual
authority 	is 	limited 	to 	a 	choice between 	two 	or more 	tightly
directed 	or 	narrowly defined 	procedures. 	"Independent
judgment" 	in the performance 	of 	duties 	includes 	the 	opportunity
7 State of California, 	supra, 	note 3, 	at page 1 .
8 Id. 	at page 6.
17
7
---------- - 	- 	1.

to make 	a 	clear 	choice 	between 	two 	or more 	significant
alternative 	courses 	of 	action, 	without 	broad 	review or
approval.g
Since 	statutory exclusions 	are designed 	to 	prevent 	a
division of 	supervisors' 	loyalty, 	the 	alleged 	supervisory
activity must 	be 	exercised 	in 	the 	interest 	of 	the 	employer. 	In
addition, 	the potential 	for 	this 	conflict of 	interest 	lies 	in
the 	authority to 	control 	personnel 	decisions. 	The
demonstration 	of 	control 	over work processes 	alone 	does 	not
support 	an exclusion.10
Finally, 	the 	language of 	section 3522.1 	specifically
provides 	that 	employees whose 	duties 	are 	"substantially
similar" 	to 	those 	of 	their 	subordinates 	shall 	not 	be 	considered
supervisory employees. 	The 	Board 	has 	rejected 	a 	quantitative
analysis 	of 	this 	phrase, 	and has 	interpreted 	"substantially
similar" 	to 	require 	exclusion when 	the 	employee's 	duties 	reach
the 	point 	at which 	the 	supervisory obligation 	to 	the 	employer
outweighs 	that 	employee's 	entitlement 	to 	the 	rights 	afforded
rank-and-file employees. 	At 	that point, 	the existence of 	such
supervisory obligations 	precludes 	a 	finding 	that 	the 	employee's
duties, 	overall, 	are substantially similar to 	those of his/her
subordinates.1111
9Id, 	at 	page 	9.
1 0 Id, 	at page 10
1 1 Id, 	at page 8.
18
11

B. 	THE ALLEGED 	SUPERVISION OF 	SEASONAL 	EMPLOYEES
The 	duties 	and 	responsibilities 	exercised 	by Ranger 	II's
regarding 	seasonal 	park 	aides 	are markedly different 	than 	their
duties 	vis-a-vis 	their 	full-time 	bargaining 	unit 	subordinates.
Additionally, 	there 	is 	conflicting 	case 	precedent 	regarding
whether 	supervision 	of 	non-unit 	employees 	constitutes
supervision 	"in 	the 	interest 	of 	the 	employer" 	under 	the
statute. 	As 	a 	result, 	the 	law and 	analysis 	regarding
supervision 	of 	seasonal 	employees 	has 	been 	specifically
separated 	for 	discussion 	in 	this 	opinion.
Specifically, 	the 	issue 	is whether 	the Ranger 	II's
supervision of 	seasonal 	park aides, 	who 	are not 	only 	1: ' -.
nonbargaining 	unit 	employees, 	but 	are 	also 	excluded 	from the
coverage 	of 	the Act 	as 	"non civil 	service employees,"
constitutes 	supervision 	"in 	the 	interest 	of 	the 	employer" 	under
section 	3522.1 	of 	the Act.
There 	is 	a 	conflict 	in the Board's 	case precedent when
applied 	to 	supervision of 	nonbargaining 	unit 	employees. 	One
line 	of 	cases 	generally holds 	that 	"sporadic" 12 or
"minimal" 13 supervision 	of 	non-unit 	employees 	"incidental 	to
the 	performance 	of 	[the 	alleged 	supervisor's] 	own professional
.. .
12 Washington Unified 	School 	District 	(1978) 	PERB 	Decision
No. 	56; 	State of California 	(1979) 	PERB Decision No. 	ll0c-S 	at
page 43 	(Fire Captains).
13 Monterey 	Peninsula 	Community 	College 	District 	(1978)
PERB Decision No. 	76.
19
13Monterev

duties"14 does 	not 	require 	a 	supervisory finding. 	Another
case 	summarily 	finds 	that 	supervising 	library 	assistants 	are
included 	in 	the 	unit 	because 	"their 	supervisory 	functions 	are
exercised 	only with 	respect 	to 	clerical 	employees 	and 	student
assistants." 15 Additionally, 	that 	case 	includes 	supervising
librarians 	in 	the unit despite 	the 	one 	sentence 	finding 	that
they 	"work 	at 	reference 	desks 	and 	supervise 	non-unit
employees."16
On 	the 	other 	hand, 	other 	Board decisions 	have 	excluded
employees 	from units 	as 	supervisors 	both 	because 	they 	supervise
non-unit 	employees 	and 	because 	they 	supervise 	persons 	who 	are
not 	"employees" 	under the Act. 	For example, 	in Berkeley
Unified 	School 	District, 	grade coordinators were 	found to 	be
supervisory based upon, 	inter 	alia, 	their 	broad 	supervisory
authority over 	large 	numbers 	of 	non-unit 	classified 	employees.
In 	that 	case, 	the 	Board 	stated 	that 	the 	supervisory definition
contained 	in 	the 	Educational 	Employment 	Relations 	Act 	(EERA)
. 	. 	. 	does not distinguish between the
supervision of 	unit 	and 	non-unit 	employees,
and 	the 	Board will 	not 	read 	such 	a
distinction 	into 	the provision. 	The
F 1 :
1 . .
14 Redlands 	Unified 	School 	District 	(1982) 	PERB Decision
No. 	235; 	University of California 	(1983) 	PERB Decision No.
247b-H, 	at page 15.
15 California 	State University 	(1981) 	PERB Case No. 	173-H,
at page 55.
1 6 Id, 	at page 44.
20
16

authority of 	the 	grade 	coordinator 	to
supervise 	certain 	classified 	employees 	is
clear 	and 	uncontradicted 	in 	the 	record.17
Similarly, 	the 	Board 	in University of 	California 	found 	that
supervision 	of 	only non-unit 	employees 	did 	not 	preclude
designation 	of 	certain 	library employees 	as 	supervisory.18
Moreover, 	the Board has 	found classifications 	to 	be
supervisory based, 	inter 	alia, 	upon 	their 	authority 	to 	hire
seasonal 	and 	limited 	term employees. 19 Particularly
significant 	is 	the 	Board's 	decision 	regarding 	the
classification of 	Park Maintenance Supervisor 	I 	(PMS 	I) 	in
State of 	California 	(1979) 	PERB Decision No. 	ll0c-S. 	That
position, 	like the Ranger 	II 	an employee of DPR, 	also had
subordinate 	seasonal 	aides who were 	not 	"civil 	service
employees" 	under 	the Board's 	prior 	decision. 	In 	addition to
their 	ability 	to 	authorize 	overtime 	and 	reassign 	personnel 	as
necessary, 	the 	PMS 	I 	classification was 	found 	to 	be 	supervisory
due to 	that position's 	"total discretion 	as 	to 	the hiring 	of
seasonals."20
In the 	instant 	case, 	there 	is 	no 	real 	dispute concerning
the 	authority of 	Ranger 	II's 	over 	seasonal 	employees 	during 	the
17 Berkeley Unified 	School 	District 	(1979) 	PERB 	Decision
No. 	101, 	at page 20.
18 University of California, 	supra, 	note 14, 	at page 13.
19 State of California, 	supra, 	note 3, 	at pages 44-46.
2 0 Id, 	at pages 66-67.
21

time 	period when 	the 	seasonals 	are working. 	Ranger 	II's 	have
discretion 	not 	only 	to 	recruit, 	interview and hire 	seasonals,
but 	also 	to 	determine 	the underlying 	need 	for 	such personnel.
They are 	empowered 	to 	evaluate, 	discipline 	and/or 	discharge
seasonals, 	establish their work schedules, 	and 	assign them
work. 	These decisions 	by Ranger 	II's 	are made without 	any
review by or 	consultation with 	higher 	authority. 	Ranger 	II's
are 	clearly exercising 	"independent 	judgment" 	on 	"personnel
decisions" 	concerning 	seasonal 	employees.
CAUSE 	argues 	that 	the 	previously cited 	decisions 	in
Washington, Monterey, 	Redlands 	and California 	State University
are 	controlling 	on this 	issue, 	since 	those cases 	necessitate 	a
finding 	of 	supervision of 	bargaining 	unit 	employees 	as 	a
prerequisite 	for 	exclusion 	from the unit. 	In my view, 	however,
each of 	those 	cases 	is 	distinguishable 	from the 	instant
situation. 	Both 	the Washington 	and Monterey decisions 	found
that 	"minimal" 	or 	"sporadic" 	supervision of 	non-unit 	employees
did not 	disqualify employees 	from the unit 	as 	supervisors. 	In
this case, 	however, 	there 	is no evidence of mere sporadic or
minimal 	supervision of 	seasonals. 	Here, 	Ranger 	II's 	perform
these 	supervisory 	functions 	for 	their 	seasonal 	employees 	on 	a
regular, 	recurring 	basis 	during 	the 	time 	period when 	the
seasonals 	are working. 	That 	authority 	and the 	exercise 	of 	it
is 	clear 	and uncontradicted 	in the 	record.
Nor 	is 	the 	exercise 	of 	such 	supervision by Ranger 	II's
"incidental 	to 	the performance of 	[the Ranger 	II's] 	own
22

professional duties" 	as 	in Redlands. 	In that case, 	the Board
rejected 	exclusion 	of 	teachers 	from the 	unit 	because 	they
"supervised" 	their 	teachers' 	aides, 	on the 	grounds 	that 	any
"independent 	judgment" 	and 	"supervisory" 	functions 	exercised 	by
teachers 	in 	assigning 	tasks 	to 	aides 	stemmed 	from the mission
of 	both 	teacher 	and 	aide 	to 	improve 	the 	quality of 	the
education 	provided. 21 While 	all 	park employees, 	including
both Ranger 	II's 	and 	seasonal 	employees, 	maintain 	a 	common goal
of 	providing 	a 	safe 	and 	enjoyable park for 	its 	visitors, 	only
the Ranger 	II 	is 	responsible 	overall 	for 	the daily
administration, 	control, 	and coordination of 	the 	functions 	and
Services 	provided 	into 	the 	parks 	under 	that 	Ranger's
jurisdiction. 	In carrying out 	those duties, 	the Ranger 	II
relies 	upon his/her 	subordinates, 	including 	seasonal 	employees,
to 	perform their 	specific 	functions 	or 	services. 	The Ranger 	II
is 	responsible 	to 	higher DPR 	authority to 	assure 	that 	those
functions 	are carried out 	by subordinate 	employees, 	and 	is 	held
accountable 	if 	they are not. 	As 	such, 	the Ranger 	II's
supervisory 	authority 	is 	clearly 	"in 	the 	interest 	of 	the
employer," 	the Department 	of 	Parks 	and Recreation, 	rather 	than
"incidental 	to 	the performance of 	[his/her] 	professional
duties." 	Rather 	than being 	incidental, 	those duties 	constitute
an 	integral 	part 	of 	the Ranger 	II's 	responsibility to 	control
and 	coordinate 	the 	park's 	functions 	and 	services.
21 Redlands Unified School District, 	supra, 	note 14, 	at
page 13.
23

The 	Board's 	decision 	in California 	State University 	is
likewise distinguishable. 	Both of the findings cited above in
that 	case 	are 	clearly based 	upon 	an 	extremely 	limited 	amount 	of
evidence provided by the University, 	in the context 	of
University claims 	that 	numerous 	classifications 	systemwide
should be excluded 	from units 	as 	supervisory. 	As 	such, 	it 	is
apparent 	that 	the 	Board's 	finding 	of 	nonsupervisory 	status 	was
based 	largely upon 	the University's 	failure 	to 	meet 	its 	burden
of 	proof 	that 	the 	positions 	in question 	performed 	supervisory
functions 	sufficient 	to 	require 	their 	exclusion 	from 	statutory
coverage.
Although 	it was 	not 	specifically 	raised 	by 	the Union 	in 	its
brief, 	the undersigned believes 	it 	necessary to 	address 	the
potential 	contention 	that 	supervision 	of 	seasonal 	Park Aides
cannot 	constitute 	"supervision" 	under 	section 	3522.1 	of 	the
Act, 	since 	that 	section 	requires 	a 	supervisory employee 	to
exercise 	the enumerated 	functions 	over 	"other 	employees," 	and
park aides 	are not 	"employees" 	within the meaning 	of 	the Act.
Although 	park 	aides 	are 	not 	employees 	under 	the Act 	because
they do 	not meet 	"the criteria 	of 	civil 	service 	employees 	in
the hire 	and 	retention of 	employment," 	the 	undersigned 	cannot
escape the 	fact 	that, 	while 	they are 	functioning 	as 	Park Aides,
they meet 	all 	of 	the normal 	"employee" 	requirements. 	They work
for 	the Department 	of 	Parks 	and Recreation, 	they 	are 	paid on 	an
hourly basis with State 	funds, 	they serve 	as 	representatives 	of
the 	State 	in meeting 	and 	dealing with 	the 	public, 	they work
24

established 	hours 	at 	State 	facilities 	on State property, 	and
they are 	responsible to 	a 	full-time State employee, 	the
Ranger 	II. 	Under 	such circumstances, 	an employer-employee
relationship 	is 	established 	during 	the 	time 	they 	are
functioning 	as 	seasonal 	park aides, 	irrespective 	of whether
their 	hiring 	and 	tenure 	rights 	qualify 	them 	as 	"civil 	service
employees."
Based upon the 	above, 	I 	find 	that 	the Ranger 	II's 	exercise
of 	supervisory 	functions 	over 	seasonal 	Park Aides 	constitutes
supervision 	"in 	the 	interest 	of 	the 	employer" 	of 	"other
employees" 	within the meaning 	of 	section 	3522.1 	of 	the Act. 	As
such, 	those duties 	must 	be 	strongly considered 	in determining
whether 	the 	Ranger 	II's 	supervisory obligations 	are
substantially 	similar 	to 	those 	of 	their 	subordinates.
C. 	THE ALLEGED 	SUPERVISION OF 	PERMANENT EMPLOYEES
Turning 	to 	the 	question of 	the 	Ranger 	II's 	alleged
supervision of 	permanent 	subordinate 	employees, 	the 	evidence
indicates 	that 	Ranger 	II's 	do 	not 	have 	the 	authority 	to 	hire,
suspend, 	layoff, 	recall, promote, discharge, reward, or
discipline permanent 	DPR employees, 	or 	effectively 	to 	recommend
such 	action. 	Although Ranger 	II's 	may participate 	in 	interview
panels 	and make 	recommendations 	for 	the 	hiring 	of 	permanent
subordinates, 	the ultimate hiring decision 	is made 	by higher
DPR 	authority. 	The 	Board 	has 	not 	afforded 	supervisory 	status
to 	employees 	who merely participate 	on 	a 	hiring 	panel 	unless
the 	record demonstrates 	that 	they - 	rather 	than 	the 	panel 	-
25

make 	the 	effective 	recommendation. 22 There 	is 	no 	such
evidence 	in the 	record here. 	Likewise, 	the Ranger 	II's
participation 	in employee 	evaluations 	under 	the 	facts 	of 	this
case 	is 	not 	an 	indicator 	of 	supervisory 	status. 	Where 	an
employee's 	participation 	in 	the 	evaluation procedure 	is 	subject
to 	substantial 	review and 	approval, 	or where 	it 	follows 	a
routine 	course 	prescribed 	by existing 	policy, 	the 	Board 	has
refused 	to 	find grounds 	for exclusion. 23 Moreover, 	authority
to 	evaluate 	is 	not 	one of 	the 	statutorily enumerated
supervisory 	criteria.
In addition, 	participation by the Ranger 	II 	in the
counseling 	function, 	though 	it 	involves 	criticism and
corrective effort, 	is 	not 	one 	requiring 	exclusion where 	that
function 	is conducted on an informal basis, 	as 	it 	is here.
Such 	informal 	counseling 	does 	not 	amount 	to 	effective
recommendation 	for 	discipline.24 Nor 	does 	the 	responsibility
to 	gather 	information and 	refer 	it 	to 	others 	for 	action
constitute 	authority 	to 	discipline within 	the meaning 	of 	the
Act.2 5
22 Foothill-DeAnza 	Community College 	District 	(1977) 	EERB
Decision No. 	10; 	California State University (1983) 	PERB
Decision No. 	351-H.
23 State of California, 	supra, 	note 3, 	at page 14.
24 Marin Community College District 	(1978) 	PERB 	Decision
No. 55.
25 State of California, 	supra, 	note 3, 	at page 13.
Dunkirk Motor 	Inn 524 	F.2d. 	663; 	90 LRRM 2961 	(2nd Cir. 	1975)
26

Similarly, 	the 	role of 	the Ranger 	II 	in 	recommendations 	for
transfers 	is 	limited 	to 	consultation by higher 	authority 	as 	to
the 	impact 	any 	such 	transfer would 	have 	upon 	the 	operation of 	a
particular 	park. 	The 	transfer 	decision 	itself 	is 	made 	by
higher 	authority 	after 	review of 	the 	factors 	involved. 	The
Ranger 	II's 	role 	in 	this 	process 	does 	not 	constitute 	"effective
recommendation."
Ranger 	II's 	are designated 	as 	the 	"informal" 	step of 	the
DPR 	grievance 	procedure, 	and may occasionally 	resolve 	informal
disputes 	or 	grievances 	of 	their 	subordinates. 	The Board 	has
dealt with 	this 	precise 	situation 	in California 	State
University, 	as follows:
The 	sergeants' 	authority to 	adjust 	employee
grievances 	is 	alleged by the University as 	a
basis 	for 	requiring 	the 	supervisory
exclusion. 	We disagree. 	We do not dispute
the 	hearing 	officer's 	finding 	that 	the
sergeants 	frequently 	resolve 	the 	informal
disputes 	or 	grievances 	of 	the officers.
However, 	we do not view this 	function as
satisfying 	the 	statutory directive 	to 	adjust
employee 	grievances 	in 	the 	interest 	of 	the
employer. 	In other words, 	the sergeants'
adjustments 	of 	these 	day-to-day work
disputes 	are not 	based 	on 	an obligation or
allegiance to the employer. 	Efforts 	to
resolve problems 	in 	an 	informal manner
spring 	from the employees' 	common goal 	of
insuring 	a congenial, 	smooth functioning
work environment. 	The 	sergeants'
involvement 	in 	this 	process 	poses 	no
conflict with the officers' 	negotiating
relationship 	with management.
As 	to 	the University's 	established
grievance 	procedure which purports 	to 	invest
sergeants 	with 	first 	level 	authority to
adjust 	certain types of grievances, 	we 	find
no 	evidence 	to 	substantiate 	the 	claim that
the 	sergeants 	have 	so 	acted. 	We decline 	to
conduct 	that 	the University has 	satisfied
. . .' M !... '7 :
27

its 	evidentiary burden where 	no 	evidence
establishes 	that 	the 	sergeants 	regularly 	act
in this 	capacity. 	The mere potential 	to do
so, 	like a job description, 	is 	insufficient
to 	remove 	the 	sergeants 	from HEERA's
collective 	bargaining 	scheme.26
Like 	the 	sergeants 	above, 	the Ranger 	II's 	role 	in 	resolving
informal 	problems 	poses 	no 	conflict with 	[their] 	negotiating
relationship with management. 	Furthermore, 	there 	is no
evidence 	that 	they 	exercise 	any 	independent 	judgment 	when 	those
informal 	"problems" 	become actual grievances, 	since 	any
adjustments 	to 	complaints 	must 	be 	previously approved 	by higher
management, 	and 	any disputes 	in these matters 	are 	referred 	to
the District 	Superintendent. 	For 	the 	reasons 	set 	forth 	in the
above decision, 	the 	role of 	the Ranger 	II 	in the departmental
grievance 	procedure 	does 	not 	require 	their 	exclusion 	from 	the
unit.
Ranger 	II's 	are 	involved 	to 	some degree 	in 	the 	assignment
of 	work. 	Although 	they 	are 	responsible 	for 	compiling 	the
monthly work schedule, 	any judgments 	as 	to what 	shifts 	to 	fill
are based upon 	such 	known 	factors 	as 	visitor use 	patterns 	and
staff 	availability. 	Once established, 	the 	shifts 	themselves
are 	subject 	to 	bids 	by Unit 	7 	subordinates 	on 	a 	seniority
basis, and 	any 	scheduling 	disputes 	are 	resolved 	by higher
authority than the Ranger 	II. 	Likewise, 	since Ranger 	I's
rotate 	among 	functional 	duty 	assignments 	on 	an 	annual 	basis,
any 	specific work 	assignment 	decisions 	among 	subordinates 	are
26 California State University, 	supra, 	note 22, 	at pages
9-11.
28

largely 	controlled 	by the 	particular 	functional 	area 	which 	the
task involves. 	Under these circumstances, 	those 	assignments
are 	routine, 	and 	are more 	akin to 	control 	over work processes
by 	an employee with greater 	experience, 	rather 	than exercise 	of
authority to 	control 	or 	influence 	personnel 	decisions.27
Similarly, 	Ranger 	II's 	spend 	little 	time 	in observing
actual 	subordinate 	performance 	or 	directing 	their work.
Indeed, 	there 	is 	often 	little 	or no daily communication between
Ranger 	II's 	and 	their 	permanent 	subordinates, 	since 	they may
work different 	shifts 	and 	have 	different 	reporting 	locations.
The nature of 	the 	park service provided, 	with 	its 	small 	staffs,
large geographical 	areas, 	and extensive hours 	of 	coverage,
inherently 	requires 	that 	employees 	be 	capable 	of 	working
independently under 	general 	departmental 	guidelines. 	The
minimal 	direction 	of 	work exercised 	by Ranger 	II's 	therefore
does 	not 	require 	the use 	of 	independent 	judgment 	contemplated
by the Act.
Ranger 	II's 	do 	have 	a 	significant 	role 	in the granting 	of
certain categories 	of 	time 	off 	and 	in decisions 	concerning 	call
out 	of 	off-duty employees 	and 	the 	necessity of 	overtime work.
Although 	not 	involved 	in 	long 	term vacation 	requests,
Ranger 	II's 	may 	allow 	subordinates 	to 	take 	short-term vacations
and 	to 	use 	accumulated compensatory time. 	Determinations 	in
these 	areas 	are made without 	checking with higher 	authority,
2 7 Id. 	See 	also Oakland Unified 	School 	District 	(1978)
PERB Decision No. 	50.
29

based 	upon 	the 	Ranger 	II's 	own perception 	of 	operational
needs. 	The Ranger 	II's 	decisions 	on the necessity to 	call 	out
an off-duty employee 	or 	to 	authorize 	overtime 	are 	similarly
based 	upon 	their 	own 	perception 	of 	the 	necessity 	for 	such
action. 	The Ranger 	II's decisions 	in these 	areas, 	based only
upon 	their 	perception of 	need 	or 	effect 	upon 	the 	overall
operation of 	the park, 	constitute 	"independent 	judgment" 	on
behalf 	of 	the 	employer with 	respect 	to 	personnel 	decisions,
within 	the meaning 	of 	the 	Board's 	prior 	decisions 	cited
above.
28
In a 	like manner, 	the Ranger 	II's 	control 	over 	the
allocation of 	the 	amount 	budgeted 	to 	a 	particular 	park 	is
further 	indicia 	of 	his/her 	authority 	to 	hire 	seasonal 	employees
and 	assign overtime 	to permanent 	subordinates. 	The Ranger 	II
determines, 	without higher 	authority authorization, 	not only
the 	level 	of 	coverage possible within 	the 	given 	amount 	but 	also
how that 	amount will 	be 	allocated. 	In doing 	so, 	the Ranger 	II
exercises 	judgment 	in balancing 	the 	amount 	of 	overtime work 	for
permanent 	subordinates with 	the 	availability of work 	itself 	for
seasonal 	employees. 	Those 	judgments 	based upon Ranger 	II's
2 8 O n these 	subjects, 	the 	facts 	of 	this 	case 	are
distinguishable 	from 	those 	under which 	the 	Board 	found
sergeants 	nonsupervisory 	in California 	State University,
supra. 	In that case, 	sergeants could decide, 	without prior
- -	approval, 	to 	call 	in off-duty officers 	or 	to 	require overtime
in 	order 	to 	maintain 	certain 	preestablished 	minimum 	staffing
levels. 	Here, 	in contrast, 	decisions made by Ranger 	II's 	on
these 	subjects 	are made 	independently based 	upon 	that 	Ranger's
perception of 	the 	need 	for 	such 	action, 	rather 	than upon
establishing 	minimum manpower 	requirements.
. . .
30
}
	'

perception 	of 	the 	proper 	mix 	between 	overtime 	and 	seasonal 	work
availability, 	also 	constitute 	"independent 	judgment" 	within 	the
meaning 	of 	the Act.
D. 	THE 	ISSUE OF 	"SUBSTANTIALLY SIMILAR DUTIES"
There 	can be 	little 	question that 	the duties 	of 	the
Ranger 	II 	classification 	are 	in many ways 	similar 	to 	those
functions 	performed 	by 	their 	subordinate 	Ranger 	I's. 	Under 	the
"substantially 	similar" 	language of 	section 	3522.1 	of 	the Act,
the 	Board 	has 	refused 	to 	automatically exclude 	an 	employee 	from
the unit 	simply because 	one 	or more 	of 	the 	listed 	supervisory
duties 	is 	included 	among his/her 	functions. 	Rather, 	the
question 	is 	whether 	their 	involvement 	in 	supervisory 	functions
outweighs 	or 	conflicts with their 	participation 	in 	and
entitlement 	to 	rank 	and 	file unit 	activity.29
Based upon 	the 	entire 	record, 	the Ranger 	II's 	supervisory
duties 	toward 	both 	permanent 	and 	seasonal 	subordinate
employees, 	when taken as 	a whole, 	"outweigh their entitlement
to 	the 	rights 	afforded 	rank-and-file 	employees." 	Those
supervisory duties 	therefore 	preclude 	a 	finding 	that
Ranger 	II's 	overall 	duties 	are 	"substantially 	similar" 	to 	those
of 	Ranger 	I's. 	While 	the 	limited 	supervisory 	functions
exercised 	by Ranger 	II's 	over 	permanent 	subordinates 	would
likely be 	insufficient 	to 	overcome 	the 	statutory 	"substantially
similar" 	criterion, 	their 	overall 	supervisory duties 	vis-a-vis
all 	of 	their 	subordinates 	easily surpass 	"the 	point 	at which
29 State of California, 	supra, 	note 3, 	at pages 	6 	and 8.
t

their 	supervisory obligation 	to 	the 	employer 	outweighs 	their
entitlement 	to 	the 	rights 	afforded 	rank-and-file 	employees."
The 	Ranger 	II's 	unfettered 	supervisory duties 	over 	seasonal
employees 	encompass 	virtually 	every element 	of 	the 	seasonal's
employment 	and 	of 	the 	supervisory criteria 	of 	section 	3522.1 	of
the Act, 	all 	the way to 	the point of deciding whether 	a
seasonal 	position 	itself will 	be 	created 	and 	filled. 	Under
such circumstances, 	the overall duties 	of Ranger 	II's 	are not
"substantially similar" 	to 	those of 	Ranger 	I's, 	and 	they
therefore meet 	the 	criteria 	for definition of 	a 	"supervisory
employee" 	under 	section 3522.1 of 	the Act.
CONCLUSION AND 	PROPOSED 	ORDER
Based upon the 	entire 	record, 	including 	the 	foregoing
findings 	of 	fact 	and conclusions 	of 	law, 	I 	find that 	employees
in 	the 	classification of 	State Park Ranger 	II 	who 	have
subordinate 	employees 30 are 	excluded 	from the 	unit 	as
supervisory employees under 	section 3522.1 	of 	the Act. 	With
respect 	to 	those employees, 	the unit modification petition to
add 	them to 	State Unit 	7 	is 	hereby DISMISSED. 	Any State Park
Ranger 	II 	positions without 	subordinate 	employees 	are 	hereby
added 	to 	State Unit 	7.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this 	Proposed Decision 	and Order 	shall
3 0 The 	evidence 	shows 	that 	a 	few employees 	in 	this
classification work 	at 	the 	DPR headquarters 	office 	in
Sacramento 	and 	have 	no 	subordinates 	reporting 	to 	them. 	Those
employees 	are 	not 	supervisors 	and 	are 	appropriately 	included 	in
the unit.
32

become 	final 	unless 	a party files 	a 	statement 	of 	exceptions
with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento
within 20 	days 	of 	service of 	this 	Decision. 	In 	accordance with
PERB Regulations, 	the 	statement 	of 	exceptions 	should 	identify
by page 	citation or 	exhibit 	number 	the portions 	of 	the 	record,
if 	any, 	relied upon for 	such exceptions. 	See California
Administrative Code, 	title 8, 	part 	III, 	section 32300. 	A
document 	is 	considered 	"filed" 	when 	actually 	received 	before
the close of 	business 	(5:00 	p.m.) 	on 	the 	last 	day set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or
Express 	United 	States mail, 	postmarked not 	later 	than 	the 	last
day 	for 	filing 	. . . " 	See 	California 	Administrative 	Code,
title 8, 	part 	III, 	sections 32135. 	Code of Civil Procedure
section 	1013 	shall 	apply. 	Any statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon 	each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany each 	copy 	served 	on 	a 	party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	part 	III,
sections 32300, 	32305 and 32140.
Dated: 	March 30, 	1987
RONALD 	HOH
Hearing 	Officer
33