Sanger Unified School District (PERB 0752E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SANGER UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION CHAPTER #153,
Exclusive Representative.
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) 	Case No. 	S-UM-389
PERB Decision No. 	752
June 30, 	1989
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Appearances; 	Finkle & Stroup by Daniel G. 	Stevenson, 	Attorney,
for Sanger Unified School District; 	Douglas W. 	Kessler, 	Field
Representative, 	for California School 	Employees Association
Chapter 	153.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	Shank and Camilli,
Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(Board or PERB) 	on exceptions 	filed by the 	Sanger
Unified School 	District 	(District) 	to the proposed decision of 	a
PERB 	hearing 	officer. 	The hearing 	officer dismissed 	the
District's unit modification petition, 	holding that, 	although the
District did 	show a change 	in circumstances, 	those changes were
not 	sufficient 	to 	render the positions 	that the 	District 	sought
to 	exclude as 	supervisory. 	For the reasons 	set 	forth below, 	we
order 	that 	the 	unit modification petition be 	granted 	and 	the
positions 	of Food Service Supervisor I, 	II, 	and III 	be excluded
from the 	bargaining unit.1
1In the unit modification petition, 	the District 	also 	sought
to 	exclude the position of 	Lead Custodian-High 	School. 	CSEA
withdrew 	its 	opposition to 	the deletion of 	this 	position during 	a
PERB 	settlement conference on September 28, 	1987.
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FACTUAL 	SUMMARY
The 	California 	School 	Employees 	Association 	(Association)
was 	recognized 	as 	the 	exclusive 	representative 	of 	classified
employees 	in the District 	in 	1976. 	The unit 	included various
cafeteria workers, 	including Cafeteria Managers 	I, 	II, 	and III.
As 	a result of 	a reclassification study conducted 	in 	1986, 	the
cafeteria 	manager position was 	retitled 	Food 	Service 	Supervisor
I, 	II, 	and III.2 On June 9, 	1987, 	the District filed its unit
modification petition 	seeking to 	exclude 	all 	food 	service
supervisor positions 	from the bargaining unit. 	The 	District
argued that, 	pursuant to PERB Regulation 32781, 	subdivision
(b)(l),3 there had been a change 	in circumstances warranting the
exclusion of 	the positions 	as 	supervisory.
From 	1976 	until 	1987, 	the District's 	food 	service program
was 	supervised by the Director of 	Food Services 	(Director).
During that 	time 	the position was 	filled by 	two people: 	Anne
2In 	1986, 	a 	reclassification 	study was 	conducted by 	the
District. 	The titles 	and written 	job descriptions 	of 	food
service workers were 	changed. 	While 	evidence was 	introduced
regarding the change 	in job descriptions, 	the hearing officer did
not 	rely on that 	evidence 	in reaching her decision. 	The District
does 	not 	except to the 	failure to give weight to this 	evidence.
3Regulation 32781, 	subdivision (b)(l) provides:
(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 	or positions
no 	longer 	in existence 	or which by virtue 	of
changes 	in circumstances 	are no 	longer
appropriate 	to 	the 	established unit.
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Collins, 	from 1976 to 	1984, 	and Carol Wilkinson, 	from 	1984 to
1987. 	In 	1987, 	the District hired an outside agency to manage
its 	food 	services 	operations. 	Prior to 	contracting with 	the
outside 	agency, 	the District's 	chain of 	command 	in Food 	Services
flowed 	from 	the Assistant 	Superintendent 	for Business 	to 	the
Director,4 	the Food Service 	Supervisor, 	and the Food Service
Assistant.
At 	the time of the hearing, 	there were 	seven 	food 	service
supervisors 	in the 	District,5 and between two and 	eleven 	food
service assistants 	in each 	school 	site. 	The 	food 	service
supervisors 	oversee 	the 	food 	service 	operations 	at 	the 	assigned
site. 	In general, 	they prepare, 	serve and store food, 	maintain
kitchen equipment and supplies 	and, 	where appropriate, 	oversee
the 	transport 	of prepared 	food to 	the 	satellite 	operations.
The 	changes 	to which the District points, 	in support of 	its
petition to 	exclude 	the 	food 	service 	supervisors, 	took place 	upon
the 	arrival of Wilkinson as 	the Director. 	Wilkinson appears 	to
have had a 	less 	"hands-on" 	supervisorial 	style than her
predecessor, 	Collins. 	During her tenure, 	Wilkinson instituted
three 	significant changes. 	First, 	she only visited the 	school
sites 	once or twice a month, 	rather than the daily visits by her
4This 	position 	is 	no 	longer held by a 	District 	employee;
the 	outside 	agency 	oversees 	the 	food 	service operations 	and 	food
service workers 	report to this 	agency and to the 	District.
5The classifications of Food Service Supervisors 	I, 	II, 	and
III 	relate 	to 	the 	size of 	the 	school 	to which the 	food 	service
supervisor 	is 	assigned and whether the position requires
servicing 	satellite 	operations.
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predecessor. 	Second, 	unlike 	Collins, 	she did not 	sit 	in on the
evaluation 	sessions 	of 	the 	food 	service assistants 	(though 	they
were 	still sent to the Director for review); 	thus, 	though food
service 	supervisors 	had always 	been involved 	in evaluations, 	they
now have 	a more 	significant role. 	Third, 	she 	changed the
procedure 	for 	securing 	substitutes 	for the kitchen. 	During
Collins' 	tenure, 	the Director generally called substitutes 	from
the 	District's 	eligibility 	list, 	after being 	informed by the 	food
service 	supervisor of 	the 	need 	for a 	substitute. 	Wilkinson
turned 	this 	responsibility 	over 	to 	the 	food 	service 	supervisors. 6
The 	District 	also 	introduced evidence of 	the 	other duties 	of
the 	food 	service 	supervisors which 	it 	contends 	supports 	its
petition for unit modification. 	Primarily, 	it relies 	on the
participation of 	the 	food 	service 	supervisor 	in the 	hiring 	of
food 	service 	assistants. 	The 	food 	service 	supervisors
participate 	in 	interviewing potential 	food 	service 	assistants
and, 	on at 	least 	some occasions, 	recommend successful candidates
6The 	testimony 	from 	the 	District 	and 	the Association
differed as 	to the reason for this 	change. 	Wilkinson testified
that 	she 	turned 	the 	responsibility 	over 	to 	the 	food 	service
supervisors 	because 	they had 	complained 	about 	the 	Director's
selection of 	substitutes. 	The Association's witnesses 	testified
that 	the 	prior policy was 	changed because Wilkinson 	lived 	in
Fresno and calls 	to 	Sanger to 	secure 	substitutes was 	long
distance. 	Regardless of the reason, 	if the change affected the
supervisorial 	nature of 	the 	food 	service 	supervisor position,
such 	change 	should be 	considered 	as 	part 	of 	the 	circumstances
warranting 	exclusion.
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for hire.7 The 	interviews usually involve a panel 	of three: 	the
Director, 	another administrator and the 	food 	service 	supervisor.
The panel members 	ask a 	series 	of prepared questions. 	The 	food
service 	supervisor 	is 	then 	either 	asked 	for a 	recommendation 	or
requested 	to 	fill 	out 	an evaluation 	sheet 	ranking 	the 	candidates.
The 	evidence 	is 	conflicting on whether the 	recommendations 	are
always 	adopted. 	Wilkinson 	testified that 	she did 	not participate
in the 	selection process 	after her 	first year, 	that 	she 	left the
decision to the discretion of 	the 	food 	service 	supervisors;
however, 	the record reflects 	that the District did not hire 	any
food 	service assistants 	after 	1985. 	The testimony of 	the only
two 	food 	service 	supervisors 	called as witnesses 	indicated 	that
they had 	each participated 	in the 	selection of 	at 	least 	one 	food
service 	assistant. 	Joyce 	Hobson testified that 	approximately
five years prior to the hearing, 	she had participated on a panel,
made 	a recommendation, 	and the person 	she recommended had been
hired. 	Billie Deaver testified that 	she 	sat 	in on 	several
panels, 	that 	she was 	given an evaluation form to rank the
participants, 	and that her top choices were not always 	selected.8
The record reveals 	that, 	whatever the role the 	food 	service
7The most 	recent hiring of 	food 	service assistants was 	in
1985 	(1) 	and 1984 	(3).
8Both 	food 	service 	supervisors 	were 	quick to point 	out 	that
they did 	not 	feel 	that 	they had 	any 	authority 	in the 	hiring
process. 	Even though Hobson's 	selection was 	hired, 	she did not
believe 	that 	it was 	necessarily on the 	strength of 	her
recommendation. 	Deaver 	indicated that the 	reason that her top
candidates 	may not have been 	selected was 	because 	of 	the merit
system.
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supervisors 	had 	in hiring, 	their 	input remained the 	same 	through
both Directors' 	tenures.
The 	food 	service 	supervisors 	also maintain a 	monthly
employee 	absence 	record 	for the 	employees 	at the 	site 	and 	submit
it 	to the Director at the end of the month. 	All 	classified
employees 	fill 	out 	individual 	absence 	report 	forms 	and return
them to 	the 	District. 	Food 	service 	supervisors 	do 	not have 	the
authority to 	grant overtime. 	The 	food 	service 	supervisors 	are
responsible 	for 	receiving 	food deliveries 	and 	can order 	selected
items 	from 	District-authorized 	vendors 	on an as-needed basis.
They participate 	in an annual 	session to 	establish menus 	and 	have
some 	limited 	input 	to adjust 	the 	District-prepared menus 	for
their 	site. 	They have no 	input on the 	selection of vendors.
There was 	no 	evidence presented that 	any of 	these 	job duties 	were
a result of a change 	in District policy; 	rather, 	they appear to
have 	always 	been the 	responsibility of 	food 	service 	supervisors.
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THE 	PROPOSED 	DECISION
The 	hearing officer relied 	on the 	three 	areas 	in which 	the
food 	service 	supervisors 	duties 	changed as 	a result 	of
Wilkinson's 	change 	in policy. 	She concluded that, 	although a
change occurred, 	the 	changes were 	insufficient to warrant an
exclusion of 	food 	service 	supervisor 	from the 	classified unit.
She 	found 	that, 	although Wilkinson visited the 	sites 	far 	less
frequently than her predecessor, 	nothing was 	presented 	to
9Hobson 	testified that 	she had 	a 	nearly 	impossible 	time
removing an 	item 	from her menu despite 	repeated 	requests.
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indicate 	that 	this 	really 	resulted 	in more 	autonomy 	to 	the 	food
service 	supervisors. 	As 	to the hiring of 	substitutes, 	she held
that 	the 	exercise 	of 	this 	duty was 	"severely 	constrained 	due 	to
the 	fact 	that 	they must 	call 	only those persons 	on the District
eligibility 	list." 	She 	concluded that 	this 	duty was 	of 	a 	routine
clerical 	nature 	and did not 	require 	the use 	of 	independent
judgment. 	Finally, 	as to the evaluation process, 	she found that,
although Wilkinson did not personally participate 	in the process,
she 	continued to review the 	evaluations 	and, 	on at 	least 	one
occasion, 	modified an evaluation. 	She rejected the 	emphasis 	the
District placed on this 	duty. 	She held that the 	record did 	not
reflect 	that 	the 	District 	relied 	on the 	evaluations 	for any
purpose which affects 	the 	terms 	and 	conditions 	of 	employment 	for
food 	service 	employees.
THE 	EXCEPTIONS
The 	District 	excepts 	to the hearing officer's
findings/conclusions 	that: 	1) 	it is unclear what weight was 	to
be 	given to 	the 	recommendation of 	the 	food 	service 	supervisors 	in
the decision-making process; 	2) 	the District did not 	support 	its
assertion that, 	by visiting the 	kitchens 	less 	frequently 	than her
predecessor, 	Wilkinson gave 	the 	food 	service 	supervisors 	more
responsibility 	and 	opportunity 	to 	exercise 	independent 	judgment;
3) 	the record does 	not establish that the 	evaluations 	have been
relied upon by 	the 	District 	for 	any purpose which 	affects 	the
terms 	and conditions 	of 	employment of 	food 	service 	employees; 	and
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4) 	calling their own substitutes 	is 	clearly a routine 	clerical
task not 	requiring 	independent 	judgment. 	The 	District 	also
excepts 	to 	the ALJ's 	failure 	to 	find that the 	food 	service
supervisors 	were 	"statutory 	supervisors" 	based 	on their oversight
at 	the 	food 	service operations 	at 	their assigned 	sites,
preparation of various reports 	and records, 	overseeing
preparation and delivery of 	food to 	satellite 	locations, 	working
three more days per year than do 	food 	service assistants, 	and
being paid 	at 	a 	higher 	salary 	range 	on the 	salary 	schedule.
DISCUSSION
The 	District 	contends 	that 	the 	food 	service 	supervisors 	are
no 	longer 	appropriate 	to 	the 	classified unit because 	they 	are
"supervisors" 	within the meaning of 	the 	Educational 	Employment
Relations Act 	(EERA or Act).1 0 Section 3540.1, 	subdivision 	(m)
of the Act provides:
"Supervisory employee" 	means 	any employee,
regardless of 	job description, 	having
authority 	in the 	interest 	of 	the 	employer to
hire, transfer, 	suspend, 	lay off, recall,
promote, discharge, assign, reward, or
discipline other employees, 	or the
responsibility 	to 	assign work 	to 	and 	direct
them, 	or to adjust their grievances, 	or
effectively recommend such action, 	if, 	in
connection with the 	foregoing functions, 	the
exercise of 	that authority 	is 	not of 	a merely
routine or clerical nature, 	but requires 	the
use of 	independent 	judgment.
The Board has held that, 	since 	section 3540.1, 	subdivision
(m) 	is written in the disjunctive, 	an employee need only perform
10EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to the
Government Code.
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or 	effectively 	recommend 	one 	of 	the 	enumerated 	functions 	or
duties 	to be 	found to be 	a 	supervisor. 	(Sweetwater Union High
School District 	(1976) 	EERB Decision No. 	4, 	at p. 	12.)11
The Board has, 	through regulation, 	afforded the parties 	two
opportunities 	to delete 	classifications 	or positions 	which 	are
inappropriate to the unit. 	The first, 	Regulation 32 781,
subdivision 	(b)(l), 	permits the exclusions of inappropriate
classifications where 	the party 	can 	show changed 	circumstances.12
The second, 	Regulation 32781, 	subdivision 	(b)(4),13	13 provides 	for
11Prior to January 	1, 	1978, 	PERB was known as the
Educational Employment Relations 	Board 	(EERB).
12See 	footnote 	2 	for complete text of 	Regulation 	32781,
subdivision 	(b)(l).
13Regulation 32781, 	subdivision 	(b)(4) provides:
(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:
(4) 	To 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, not
covered by EERA, 	HEERA or Ralph C. 	Dills Act,
or otherwise prohibited by 	statute 	from
inclusion in the unit, 	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
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unit modification, 	absent changed circumstances, 	under limited
conditions. 	The 	facts of 	this 	case are appropriately analyzed
under Regulation 32781, 	subdivision 	(b)(l).
In Atascadero 	Unified 	School 	District 	(1981) 	PERB 	Decision
No. 	191, 	at p. 	5, 	the Board's first case dealing with changed
circumstances 	which warrant 	exclusion of 	supervisory positions,14
the 	Board affirmed 	the ALJ's 	finding that 	head 	custodians 	and
kitchen managers were no 	longer appropriate 	to 	the 	unit.
Atascadero 	involved rather unique 	circumstances. 	The district
and 	the 	union 	stipulated that 	the positions 	involved 	in 	the 	unit
modification petition were 	supervisory. 	Thus, 	the only question
before 	the 	Board was 	whether 	there were 	changed 	circumstances 	to
warrant modification. 	The 	Board 	found that: 	both positions
began evaluating 	subordinate 	employees, 	and that 	such 	evaluations
were 	the 	only ones 	received by the 	employees; 	both positions
effectively hired 	employees; 	head 	custodians 	effectively
recommended dismissal 	of 	employees 	and 	that 	kitchen managers 	had
the authority to dismiss. 	On the basis 	of these changes, 	the
Board granted the 	unit modification petition. 	One 	comment by 	the
memorandum of 	understanding 	as 	defined 	in
these 	regulations 	in 	section 	33020 	for EERA,
40130 	for Ralph C. 	Dills Act or 51026 	for
HEERA.
(As amended, 	February 1, 	1989)
14PERB's 	regulations were revised, 	effective February 	14,
1983. 	Regulation 32781, 	subdivision 	(b)(l) 	was 	formerly numbered
at 32761, 	subdivision 	(b). 	There were no substantive changes to
the 	regulation. 	The 	regulations 	have been recently revised,
effective February 	1, 	1989. 	Regulation 32781, 	subdivision 	(b)(l)
was 	not 	substantively 	changed.
10

Board deserves 	mention. 	Relying on 	section 	3545, 	subdivision
(b), the Board stated:
[i]n addition to 	the 	fact 	that there 	are
changed 	circumstances, 	we would 	exclude the
employee 	classifications 	in question because
it 	is 	clearly 	inappropriate to 	include
supervisory 	classifications 	within 	the
established unit.
(Ibid, 	at p. 	5, 	emphasis added.)
Another decision 	in which 	the 	Board 	granted 	a petition 	for
unit modification to 	exclude 	supervisory 	employees, 	and the
decision relied upon by the District, 	is Antioch 	Unified 	School
District 	(1984) 	PERB Decision No. 	415. 	In Antioch, 	the Board
adopted 	the 	findings 	of 	fact 	and conclusions 	of 	law of 	the ALJ.
(Ibid, 	at p. 	2.) 	Although there was 	significant discussion
regarding the 	effect 	of 	the revision of 	PERB's 	regulations15 in
the Board's decision, 	there was 	no discussion of the 	changes 	in
-
the duties 	of 	the 	food 	service 	cook managers warranting 	an
exclusion of that position under Regulation 32781, 	subdivision
(b)(l). 	Even though the decision clearly rests 	on Regulation
32781, 	subdivision 	(b)(l), 	the analysis focuses on all of the
duties 	of 	food 	service cook managers, 	not merely those which
changed 	following the 	initial 	unit determination. 	The 	Board
considered 	the 	following 	factors when 	it determined 	that 	food
service 	cook managers 	were 	supervisory: 	they used 	independent
judgment 	to 	choose a 	candidate to 	fill 	vacant 	food 	service
15The union argued, 	inter alia, 	that, 	because the petition
was 	filed under the previous regulation 	(see supra fn. 	13), 	the
petition was 	invalid.
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assistant positions 	(the 	manager 	independently 	selected 	from the
top three ranks 	on the eligibility list); 	they exercised
supervisory 	authority by 	assigning work 	to 	employees 	in 	their
kitchens; 	they determined whether 	substitute 	employees 	were
needed and 	if 	extra hours were 	required; 	they 	exercised the 	only
authority 	on 	site 	and were 	not 	subject 	to 	substantial 	review or
prior approval 	to 	carry out day-to-day operations 	and; 	finally,
the 	Board 	found 	that 	evaluating 	employees 	was 	indicative 	of
supervisory 	status. 	(Ibid, 	at pp. 	8-9 of attached ALJ Proposed
Decision.) 	The Board noted, 	however, 	that participation on a
promotional 	interview panel 	does 	not 	"achieve 	a dimension of
'hiring' 	or 	'effectively recommending' 	hiring under Board
precedent." 	(Ibid, 	at pp. 	9-10.)
The 	District 	argues 	that 	its 	food 	service 	supervisors
perform many, 	if not all, 	of the tasks that the Board approved of
in Antioch. 	First, 	it argues that, 	like the food service cook
managers 	in Antioch, 	the 	food 	service 	supervisors participate 	on
an 	interview panel 	where 	they 	effectively 	recommend 	hiring 	of
assistants. 	On this 	issue, 	the District misreads 	the 	facts 	in
Antioch. 	The discussion of 	interview panels 	in Antioch pertained
only to promotional 	interviews 	for assistants 	and the 	Board
expressly held 	that 	such participation did 	not 	amount 	to hiring
or effectively recommending hiring. 	The Board, 	in Antioch.
instead 	relied upon the 	food 	service 	cook manager's 	selection of
substitutes 	from the top 	three 	ranks 	of 	an established
eligibility 	list; 	since all 	food 	service assistants 	had
12

originally been hired as 	substitutes, 	the Board considered this
as 	effectively recommending hiring. 	Furthermore, 	the testimony
was 	conflicting 	as 	to whether 	the 	hiring 	recommendations 	were
always 	accepted by the 	District. 	(See discussion 	supr- - a 	at
pp. 	3-4.)
Second, 	the District argues that, 	because Wilkinson limited
her visits 	to once or twice a month, 	the 	food 	service 	supervisors
effectively manage 	the day-to-day operations 	of 	the 	kitchens. 	To
support 	this 	assertion, 	the District relies 	on the 	following
facts: 	food 	service 	supervisors 	are allowed to vary the hours 	of
assistants 	(but not assign overtime); 	they are responsible 	for
deliveries 	and ordering bread, 	candy, 	milk, 	and popcorn from
District-approved vendors; 	they assign assistants 	food
preparation, 	serving and cleanup tasks; 	and they have 	input 	into
the 	creation of 	the menus 	for their 	site. 	They correctly argue
that these 	are very 	similar to 	the 	factors 	relied upon by the
Board 	in Antioch.
Third, 	the District asserts 	that the 	evaluation process 	is
similar to 	the 	criteria 	in Antioch. 	We 	find that 	the procedure
is 	markedly 	similar. 	The only difference 	is 	the 	finding 	in
Antioch that the director never changed an evaluation. 	In the
present 	case, 	Wilkinson did amend one 	evaluation to 	include
information received 	subsequent to 	the 	evaluation. 	We do 	not
consider this 	a 	substantial 	difference. 	Wilkinson testified that
the 	food 	service 	supervisors 	recommend permanent 	status 	for
probationary 	employees 	and 	those 	recommendations 	were 	never
13

overruled. 	The Association presented no rebuttal 	to 	this
testimony.
Finally, 	the District contends 	that the ALJ 	erred 	in
concluding 	that 	the 	food 	service 	supervisors 	only perform a
clerical 	function when they 	call 	substitutes 	from the 	District's
eligibility 	list. 	Wilkinson testified that 	the 	list was 	only a
starting place, 	and that the 	food 	service 	supervisors 	can call
whomever they chose. 	That testimony 	is 	corroborated only by a
single 	incident 	testified to by Hobson. 	Hobson 	stated 	that 	once,
when 	she 	could not obtain a 	substitute 	from the 	list, 	she was
given permission by Wilkinson to 	call 	someone 	she 	knew. 	Hobson
and 	Deaver both 	testified 	that 	they were 	expected 	to 	call 	off 	the
eligibility 	list. 	There 	is 	nothing 	in the record to 	indicate
whether 	the 	food 	service 	assistants 	have 	all been 	substitutes,
thus, 	satisfying the criteria 	set 	forth in Antioch.
The 	Board 	is presented with a very close 	case here. 	We 	are
called upon to determine whether the 	changes 	in circumstances,
since the 	initial 	establishment of 	the unit, 	are 	sufficient 	to
change the 	status 	of the 	food 	service 	supervisors 	and exclude
them from the unit. 	In other words, 	are the changes which
resulted 	from Wilkinson's 	management 	style, 	coupled with the
preexisting duties 	of the food service 	supervisors, 	sufficient to
warrant 	exclusion 	from the 	unit?
The 	District's primary argument 	is 	that the 	food 	service
supervisors 	utilize 	independent 	judgment 	in effectively
recommending hiring. 	A close 	review of Antioch reveals 	that 	the
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Board has 	rejected 	mere participation on an 	interview panel 	as
evidence of 	"hiring" 	or 	"effectively recommending" 	hiring.
Although Wilkinson 	contends 	that 	she 	no 	longer participated 	on
interview panels 	and that 	the decision was 	left to 	the 	food
service 	supervisor, 	the record reveals 	that there have been no
hiring decisions 	since 	1985. 	The 	only testimony 	indicated that
food 	service 	supervisors 	participated 	on panels 	and made
recommendations. 	This argument must, 	therefore, 	be rejected.
However, 	the other arguments put 	forth by the District 	are
persuasive. 	The District's 	remaining evidence 	in 	support 	of
supervisory 	status 	is 	the on-site 	authority: 	assigning and
directing work, 	making 	emergency 	substitutions 	on the menu,
receiving deliveries, 	ordering 	some 	foodstuffs 	from District-
approved vendors, 	participating in meetings 	to 	establish menus,
determining when 	substitutes 	are 	needed 	and 	calling 	from the
District's 	list, 	and evaluating employees.
Although there was 	a 	lack of 	specific 	evidence 	as 	to 	the
increased autonomy 	of 	the 	food 	service 	supervisors 	due 	to
Wilkinson's 	infrequent presence 	on 	site, 	such 	increased autonomy
is 	self-evident, 	given the 	fact that the 	food 	service 	supervisors
are 	indisputably 	in charge 	in the 	absence 	of 	the 	Director.
Furthermore, 	as 	noted above, 	their duties 	are very 	similar to
those 	found 	significant 	in Antioch.
We 	also 	find the 	change 	in the 	evaluation process
significant. 	As 	the Board 	found 	in Antioch, 	conducting
evaluations 	is 	indicative of 	supervisory 	status, 	it obviously can
15

have 	a profound effect upon promotion and 	firing, 	two 	factors
expressly mentioned in section 3540.1, 	subdivision 	(m).16 While
being on an evaluation panel 	is 	of 	no 	greater 	import 	than being
on a hiring panel, 	the 	food 	service 	supervisors 	now do 	the
evaluations themselves, 	subject to the review of the Director.
Thus, 	their role has been greatly expanded.
The 	food service 	supervisors' 	involvement 	in 	selecting
substitutes 	is 	also of 	some 	significance. 	Choosing 	someone 	from
an eligibility 	list 	is 	not 	just a 	clerical 	function; 	some
independent 	judgment 	is 	required as 	long as 	a 	choice must be made
among several 	eligible candidates. 	After all, 	the 	same type of
action is 	all 	that 	is 	required to hire a permanent 	employee.
While the 	food 	service 	supervisors' 	independent 	judgment 	is
confined 	to 	the 	arguably 	less 	important 	realm of 	hiring
substitutes, 	it is nevertheless hiring of a sort and, 	thus, 	is
some 	indication of 	supervisory 	status.
We 	conclude that the 	food 	service 	supervisors' 	increased on-
site 	authority 	and 	greater 	involvement 	in evaluations 	and 	the
hiring 	of 	substitutes 	constitute 	changed 	circumstances 	sufficient
to 	make 	their 	continued 	inclusion 	in the 	rank and 	file 	unit
inappropriate.
16For complete text of section 3540.1, 	subdivision 	(m), 	see
page 8.
16

ORDER
The 	unit 	modification petition 	filed by the 	Sanger Unified
School District is GRANTED. 	Food Service Supervisors 	I, 	II, 	and
III 	shall be 	excluded from the unit. 	Accordingly, 	an amended
unit 	certification will 	be 	issued.
Members 	Shank and Camilli 	joined 	in this 	Decision.
Member Porter's 	concurrence begins 	on p. 	18.
17

Porter, 	Member, 	concurring: 	I 	concur that the unit
modification petition 	should be 	granted with 	respect 	to 	the
Food 	Service 	Supervisor I, 	II 	and 	III 	classes 	in that the record
demonstrates 	that 	there has 	been a 	change 	in circumstances 	and
that 	said 	classes 	are 	now 	supervisory 	and 	no 	longer 	appropriate
to 	the bargaining unit.
The unit modification petition before us 	seeks 	not 	only
the 	deletion of 	the 	food 	service 	supervisor 	classes 	from the
bargaining unit 	on the basis 	of 	change 	in circumstances 	and
supervisory 	status, 	but also that of the Lead Custodian-High
School 	class. 	The record before us 	shows 	that, 	in responding
to 	the unit modification petition, 	the 	exclusive 	representative
opposed 	deletion of 	the 	Lead Custodian-High 	School 	class 	on 	the
grounds 	that there had been no 	change 	in circumstances 	and that
the 	class was 	still 	appropriate to the bargaining unit. 	The
proposed decision also 	indicates 	that, 	prior to the hearing 	on
this 	unit modification petition, 	the 	employer and the 	exclusive
representative 	"informally 	stipulated" 	that 	the 	Lead Custodian-
High 	School 	class 	could be deleted 	from the unit. 	The record
shows 	no determination by 	the 	Public 	Employment 	Relations 	Board
(Board) 	agent 	on the petition regarding the 	Lead Custodian-High
School 	class, 	nor does 	the record before us 	contain any evidence
or 	stipulated 	facts 	with 	respect 	to 	any 	changed 	circumstances
and 	supervisory 	status 	of 	the 	Lead Custodian-High 	School 	class
whereby 	this 	Board 	can make 	any 	such determination. 	Accordingly,
I 	would 	remand 	that portion of 	the 	unit 	modification petition
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concerning 	the 	Lead Custodian-High 	School 	class 	to 	the 	Board
agent 	for 	further 	investigation and/or hearing 	in order that 	such
a 	determination may be made.
Chairperson Hesse 	joined 	in this 	Concurrence.
19