Chowchilla Union High School District (PERB 1040E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHOWCHILLA UNION HIGH SCHOOL
DISTRICT,
Employer,
and
CHOWCHILLA UNION HIGH SCHOOL
FACULTY ASSOCIATION/CTA/NEA,
Exclusive Representative.
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) 	Case Nos. 	S-UM-525
S-UM-552
PERB Decision No. 	1040
March 	10, 	1994
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Appearances: 	Stroup & de Goede by Daniel G. 	Stevenson, 	Attorney,
for Chowchilla Union High School 	District; 	California Teachers
Association by Diane Ross, 	Attorney, 	for Chowchilla Union High
School 	Faculty Association/CTA/NEA.
Before Caffrey, 	Carlyle and Garcia, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	Chowchilla Union
High School 	District 	(District) 	to 	the attached proposed decision
of a PERB hearing officer. 	In the proposed decision, 	the hearing
officer found that: 	(1) 	nine area coordinator positions are not
supervisory under 	the 	Educational 	Employment 	Relations 	Act
(EERA)1 and 	(2) 	the position of counselor/administrative
assistant 	(AA) 	is not a confidential position within the meaning
of 	EERA, 	and thus 	the unit modification petitions 	filed by the
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code.
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Chowchilla 	Union 	High 	School 	Faculty Association/CTA/NEA 	should
be 	granted.
The 	Board has 	reviewed the 	entire 	record in this 	case,
including the proposed decision, 	transcripts, 	exhibits,
exceptions, 	and responses 	thereto. 	We 	find the hearing officer's
conclusion 	to be 	supported by 	the 	testimony and 	evidence 	and
affirm and adopt 	it 	as 	the decision of 	the Board itself. 	With
respect 	to 	the 	confidential 	position issue, 	we affirm the hearing
officer's 	conclusion based 	on 	the 	expanded 	reasons 	discussed
below.
DISCUSSION
District's 	Exceptions
On appeal, 	the District disagrees with the 	conclusions drawn
by the hearing officer. 	The District argues 	that: 	(1) 	the area
coordinators are 	supervisory; 	and 	(2) 	the 	counselor/AA position
is 	confidential. 	With respect 	to the 	"supervisory" 	nature 	of
area coordinators, 	the hearing officer's 	conclusions are 	firmly
supported by the 	record. 	However, 	the 	issue of 	"confidential"
status 	warrants 	further discussion.
Counselor/Administrative 	Assistant
Maureen Riley 	(Riley) 	holds 	the dual position of
counselor/AA. 	She has held the AA position since 	the 	start 	of
the 	1989-90 	school year. 	To date, 	her duties as an AA only
comprise 	10-15 	percent 	of 	her 	time 	and have been 	limited 	to
writing 	grants 	and minimal 	involvement 	with 	collective 	bargaining
N	2

on 	the District's behalf. 	The 	record and attached proposed
decision describe Riley's 	involvement 	in 	the 	types 	of 	activities
defined as 	"confidential" 	under EERA.2
To decide whether Riley's position is 	confidential, 	the
hearing 	officer applied 	the 	definition of 	"confidential 	employee"
from EERA section 3540.1(c)3 and PERB precedent, 	and concluded
that 	the position 	is 	not 	confidential 	largely because Riley did
not participate 	in contract 	negotiations.
Although we agree 	that 	Riley's position 	is 	not 	confidential,
we 	wish 	to 	emphasize 	the 	necessity 	of 	regularly 	functioning 	in
the 	employer-employee 	relations 	area 	in order to be 	considered a
confidential 	employee. 	Reviewing 	the 	section 3540.1(c)
definition of 	confidential 	employee, 	we note 	that 	it 	focuses 	on
the 	employee's 	access 	to a particular type 	of 	information:
"information relating to, 	his 	or her employer's 	employer-employee
relations."
"Employer-employee 	relations" 	includes 	negotiations 	and
grievance processing but 	not mere processing 	of 	personnel 	records
2See proposed decision, 	pp. 	20-22.
3EERA section 3540.l(c) 	defines 	confidential 	employee as:
. 	. 	. 	any employee who, 	in the regular course
of his or her duties, 	has access to, 	or
possesses 	information relating to, 	his 	or her
employer's 	employer-employee 	relations.
In citing 	this 	section in the proposed decision, 	the Hearing
Officer 	omitted 	the 	key word 	"regular."
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and evaluations.4 In addition, 	under PERB precedent, 	a
confidential 	employee must 	function as 	such 	in 	the 	regular 	course
of 	his 	or her duties meaning that more 	than a 	fraction of 	the
employee's 	time 	is 	spent 	on confidential matters 	dealing with
employer-employee 	relations.5
The 	proposed decision appropriately 	focuses 	on Riley's 	lack
of participation 	in 	contract 	negotiations. 	After discussing 	that
aspect 	of 	Riley's 	job, 	the hearing officer 	concludes by stating
that 	"ample 	opportunity had 	existed 	for Riley 	to 	become 	involved
in some aspect of 	the negotiations process," 	and, 	since this had
not occurred, 	the position was not confidential. 	However, 	a
review of 	the 	status 	of 	this 	position must 	also 	focus 	on the
regular 	functions 	assigned 	to 	it 	rather than merely 	its 	lack 	of
participation 	in 	contract 	negotiations 	to determine 	confidential
status.
At 	the hearing, 	Riley testified that 	she 	spends
approximately 	85-90 	percent 	of 	her 	time 	counseling 	students 	and
the 	remainder as 	an AA. 	In the AA job, 	Riley testified that 	her
duties 	had been limited to writing grants, 	that 	she had not been
involved 	in any negotiations, 	nor had she been 	formally trained
4See Upper Lake Union Elementary School 	District 	(1989) 	PERB
Decision No. 	736; 	Fremont Unified School District 	(1976) 	EERB
Decision No. 	6 	(PERB was known as 	the Educational 	Employment
Relations Board 	(EERB) 	prior to January 1, 	1978.); 	and Campbell
Union High School District 	(1978) 	PERB Decision No. 	66. 	See also
Los Rios 	Community College District 	(1977) 	EERB Decision No. 	18,
holding 	that 	tangential 	contact 	with 	confidential 	information 	is
insufficient 	to make an employee a 	confidential 	employee.
5Upper Lake, 	supra; 	Imperial Unified School District 	(19 87)
PERB Decision No. 	647.
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by the District in collective bargaining. 	. It is obvious that
very little, 	if any, 	of Riley's 	typical workday is 	spent on
matters 	that 	involve 	access 	to 	confidential 	information dealing
with employer-employee relations. 	Thus, 	she does not 	function as
a 	confidential 	employee 	and 	the 	hearing 	officer's 	conclusion 	is
correct.
ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law, 	and the entire record in this 	case, 	the responsibilities of
the 	area 	coordinators 	are 	not 	supervisory under 	the 	Educational
Employment Relations Act 	(EERA). 	Therefore, 	the unit
modification petition 	filed by 	the 	Chowchilla Union High 	School
Faculty Association/CTA/NEA in Case No. 	S-UM-525 	is 	hereby
GRANTED.
It 	is also determined, 	for the reasons stated above, 	that
the position 	of 	counselor/administrative 	assistant 	is 	not 	a
confidential position within the meaning of EERA. 	Therefore, 	the
unit 	modification petition 	filed by 	the 	Chowchilla Union High
School 	Faculty Association/CTA/NEA in Case No. 	S-UM-552 	is 	also
hereby GRANTED.
Member Caffrey 	joined 	in 	this 	Decision.
Member Carlyle's 	concurrence begins 	on page 	6.
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Carlyle, 	Member, 	concurring: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB) 	on appeal by the 	Chowchilla
Union High School 	District 	(District) 	to 	the attached proposed
decision 	of 	a 	PERB 	hearing 	officer.
I 	have 	reviewed 	said proposed decision, 	the District's
exceptions 	and brief, 	and all 	documents 	and pleadings 	filed 	in
connection therewith. 	I 	find 	the hearing officer's proposed
decision 	to be 	free 	of prejudicial 	error and adopt 	it 	as my
decision.
I 	write 	separately 	to 	distance 	and 	disassociate myself 	from
the 	three 	page 	DISCUSSION 	section 	contained 	in 	the 	majority
opinion.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHOWCHILLA 	UNION 	HIGH
SCHOOL DISTRICT,
Employer,
and
CHOWCHILLA UNION 	HIGH 	SCHOOL
FACULTY 	ASSOCIATION/CTA/NEA,
Exclusive 	Representative
Representation
Case Nos. 	S-UM-525
S-UM-552
PROPOSED 	DECISION
(8/30/93)
)
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Appearances: 	Stroupe and De Goede by Daniel G. 	Stevenson,
Attorney, 	for Chowchilla Union High School 	District; 	California
Teachers Association by Diane Ross, 	Attorney, 	for Chowchilla
Union 	High 	School 	Faculty Association/CTA/NEA.
Before Jerilyn Gelt, 	Hearing Officer.
PROCEDURAL 	HISTORY
On October 31, 	1991, 	the Chowchilla Union High School
Faculty Association/CTA/NEA 	(Association) 	filed a unit
modification petition with 	the 	Public 	Employment 	Relations 	Board
(PERB or Board) 	pursuant to PERB Regulation 32781(a)(I).1 The
petition 	sought 	to 	add area 	coordinators 	to 	the 	established
certificated bargaining unit 	in 	the 	Chowchilla Union High 	School
1PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	PERB Regulation
32781(a)(l) provides:
(a) 	A recognized or 	certified employee
organization may 	file with the 	regional 	office 	a
petition for modification of 	its unit(s):
(1) 	To add to the unit unrepresented
classifications 	or positions;
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.
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District 	(District). 	The District 	opposed the unit modification
based 	on 	the 	supervisory 	status 	of 	the 	area 	coordinators.
On December 17, 	1992, 	the Association 	filed a unit
modification 	petition with 	PERB 	pursuant 	to 	PERB 	Regulation
32781(b) (2) 	and 	(3) .2 The petition sought 	to include the
position 	of 	counselor/administrative 	assistant 	in 	the
certificated unit. 	The 	District 	opposed 	the 	inclusion based 	on
the 	confidential 	status 	of 	the position. 	Pursuant 	to 	the
agreement 	of 	the parties, 	the 	two unit modification petitions
were 	consolidated.
After 	an 	informal 	settlement 	conference 	conducted by 	PERB 	on
January 24, 	1992, 	a 	formal 	hearing was 	scheduled 	for June 	29
and 30, 	1992. 	Having been rescheduled on 	three 	separate
occasions, 	the 	hearing commenced on November 	12, 	1992 	and was
continued on 	February 	11 	and 	12, 	1993. 	Briefs 	and 	reply briefs
were 	timely 	filed, 	and 	the 	case 	was 	submitted 	for decision 	on
May 7, 	1993.
2PERB Regulation 32781(b)(2) 	and 	(3) 	provides:
(b) 	A recognized 	or 	certified 	employee
organization, 	an employer, 	or both jointly may
file 	with 	the 	regional 	office 	a petition 	for unit
modification:
(2) 	To make 	technical 	changes 	to
clarify 	or 	update 	the 	unit
description;
(3) 	To 	resolve a dispute as 	to
unit 	placement 	or 	designation 	of 	a
new 	classification 	or 	position;
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ISSUES
At 	the hearing, 	the parties 	entered into a stipulation in
which 	the 	following 	area 	coordinator positions 	were 	added 	to 	the
certificated unit: 	Fine Arts, 	Work Experience, 	Special 	Programs,
and Community Services.3 Thus, 	the 	remaining issues 	are as
follows:
1. 	Are 	the 	following area 	coordinator positions 	supervisory
within 	the meaning of 	the 	Educational 	Employment 	Relations Act4
(EERA or Act): 	Agriculture 	(Steve Obad); 	Humanities/Media
Director 	(Birt McKinzie); 	Industrial Arts 	(John McLaughlin);
Math/Science 	(David Pettit); 	Performing Arts 	(Donald Thissen);
Physical 	Education/Athletic Director5 (Mike Little); 	Social
Studies 	(Conrad Gaunt); 	Student Activities 	(Linda Veatch); 	and
Vocational 	Education 	(Leona 	Pistoresi)?
2. 	Is 	the position of 	counselor/administrative assistant
(Maureen Riley) 	confidential within the meaning of 	EERA?
FACTS
Chowchilla Union High School 	District 	consists 	of 	one 	high
school, 	one 	continuation high school 	and the District 	office.
During 	the 	1992-93 	school year, 	approximately 675 	students were
3A unit modification order effective 	as 	of 	the 	date 	of 	the
stipulation, 	November 12, 	1992, 	was issued by PERB on May 5,
1993.
4EERA is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
5Although 	the Athletic Director 	is 	listed on 	the
certificated 	management/supervisory 	salary 	schedule 	(District
Exhibit 	5) 	as 	a position 	separate and apart 	from that 	of 	Physical
Education Area Coordinator, 	the parties 	have 	treated the position
as 	one with dual 	responsibilities.
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enrolled 	in 	the 	District.6 The 	administration 	is 	headed by
Superintendent Ronald Moore. 	The next 	level 	of 	authority 	is 	the
principal 	of 	the high school, 	Bob Green. 	The other certificated
members 	of 	the management 	team are 	the principals 	of 	adult
education and the 	continuation high school, 	the director of
guidance, 	the dean of 	students, 	the counselor/administrative
assistant 	and the area 	coordinators 	(13 	at 	the 	time 	the unit
modification petition was 	filed), 	a total 	of 20 	individuals. 	All
area 	coordinators 	report 	directly 	to 	the principal.
In addition 	to 	the management/supervisory personnel 	listed
above, 	there were 22 	other certificated employees who taught 	in
the District 	at 	the 	time 	the petition was 	filed, 	4 	of whom are
employed by 	either Merced 	or Madera 	County Offices 	of 	Education.
Thus, 	there was a ratio of 20 management/supervisory personnel 	to
22 	bargaining unit personnel. 	This 	ratio was 	diminished with the
addition 	of 	four area 	coordinators 	to 	the bargaining unit 	at 	the
start 	of 	the hearing.
All 	area 	coordinators 	teach a 	full 	load of 	five 	classes 	with
the exception of Mike Little and Linda Veatch, 	each of whom
teaches 	four periods 	and receives 	one period 	of 	release 	time 	for
their 	responsibilities 	as 	athletic 	director 	and 	student
activities 	area 	coordinator,7 respectively. 	In addition to
6See 	the California Public School Directory. 	1992. 	prepared
by the Bureau of 	Publications, 	California Department 	of
Education.
7Veatch was 	also 	referred to as 	student 	activities 	director;
the 	titles 	appear to be 	interchangeable.
4

teaching 	in their own areas, 	some area coordinators 	also 	teach 	in
other areas.
All 	area 	coordinators 	work a 	longer year 	than other
certificated 	employees 	and are 	paid 	on 	the 	certificated
management/supervisory 	salary schedule. 	All 	area 	coordinators
make 	recommendations 	regarding 	curriculum and budget 	to 	the
principal 	and/or 	superintendent. 	These 	recommendations 	are
typically 	developed 	collaboratively 	with 	area 	staff 	and 	are 	not
always 	approved. 	Area 	coordinators 	sign all 	purchase 	orders 	for
their areas; 	however, 	they must be approved by the
superintendent.
Area 	coordinators 	evaluate 	the 	certificated 	staff 	in 	their
areas, 	if any. 	In addition, 	all teachers, 	including area
coordinators, 	are 	evaluated by the principal. 	The 	superintendent
testified 	that 	he 	gives 	these 	evaluations 	equivalent 	weight.
After 	the 	area 	coordinators 	perform 	classroom 	observations
but before 	the 	evaluations 	are written, 	they meet with the
principal 	to discuss 	their observations. 	The area 	coordinator
then writes 	up 	the 	evaluation and meets 	with 	the 	teacher 	to
review 	it. 	No 	evaluation has 	been 	signed or 	changed by 	the
principal 	after being 	signed by 	the 	area 	coordinator 	and 	the
teacher at 	the 	time 	of 	the 	evaluation meeting.
Generally, 	no 	formal 	district 	training 	in evaluation
technique has been given to the area coordinators; 	however, 	some
area 	coordinators 	have attended workshops, 	conferences 	and/or
taken 	classes 	in which evaluation 	techniques 	were 	discussed.
5

Additionally, 	they typically discuss 	techniques 	with 	the
principal 	at 	the beginning 	of 	their 	tenure as 	area 	coordinator as
well 	as 	at 	the management meeting at 	the beginning of 	the 	school
year and during 	the year on an as-needed basis.
Area 	coordinators 	are 	involved 	in 	the paperscreening 	and
interviewing of applicants 	for hire. 	If 	there are 	several
applicants' for a position, 	the District normally uses a committee
for 	the 	interview process. 	The 	committee 	typically 	consists 	of
the area coordinator, 	the principal, 	the director of guidance,
and 	sometimes 	the 	dean of 	students 	and/or other 	teachers. 	The
committee 	is 	expected to 	reach a 	consensus 	recommendation, 	which
is 	given to 	the 	superintendent. 	There has been at 	least 	one
instance 	in which 	the 	area 	coordinator and principal 	did not
agree 	on a 	candidate; 	the 	superintendent 	referred the matter back
to 	them for 	further discussion.
When there are only one 	or two applicants, 	the 	committee may
consist 	of 	only 	the 	area 	coordinator and 	one 	other 	individual,
such as 	the 	director of 	guidance 	or another 	teacher. 	This
smaller 	committee 	is 	also 	expected 	to 	reach a 	consensus
recommendation to be 	forwarded 	to 	the 	superintendent. 	As
discussed below, 	the 	hiring process 	has varied 	from these models
in some 	instances. 	:
Area 	coordinators 	are 	designated 	in 	the 	collective
bargaining agreement 	to handle 	the 	first 	step of 	the grievance
procedure. 	However, 	no evidence was presented showing actual
adjustment 	of 	a 	formal 	grievance by an area 	coordinator.
6

In general, 	both Superintendent Moore and Principal 	Green
testified 	that 	they have 	consistently solicited, 	adopted and/or
given great 	weight 	to 	the 	recommendations 	of 	area 	coordinators.
Green described his 	relationship with 	the 	area 	coordinators 	as 	a
close 	one 	in which 	they 	function much 	like 	a team, 	discussing and
ultimately reaching agreement 	on personnel matters.8 Since 	the
testimony 	of 	both Moore 	and Green 	regarding 	specific 	personnel
actions was, 	for the most part, 	conclusory, 	it will be relied
upon 	only 	insofar as 	it 	is 	substantiated by 	the 	area 	coordinators
themselves.
Agriculture 	Area 	Coordinator
Steve 	Obad has 	worked 	in 	the District's 	agriculture 	area 	for
14 years; 	1992-93 was his 	first year as 	the area coordinator.
Obad 	is 	paid by 	the District 	for one period as 	area 	coordinator
and 	is 	also an employee 	of 	the Merced County Office 	of 	Education.
Obad meets 	with 	the 	four other teachers 	in the agriculture
area twice a month. 	At 	the 	time of 	the hearing, 	he had not had
an 	opportunity 	to perform any 	evaluations.
Obad's 	responsibilities 	include 	making 	recommendations
regarding 	the 	classes 	teachers 	are assigned; 	he generally
discusses 	these 	recommendations with Green. 	He has made 	one
assignment 	with which 	teacher Charles 	Holloway was 	unhappy. 	He
8When pressed by the Association's 	counsel, 	Green 	stated
that 	he would 	follow an area 	coordinator's 	recommendation 	in
matters 	such as 	transfer and 	tenure 	if 	it was 	in direct 	conflict
with his 	own. 	However, 	Green could not 	recall 	any situation 	in
which this had actually occurred. 	Therefore, 	his 	testimony in
this 	regard 	is 	speculative and given 	little weight.
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has 	also made 	recommendations 	which were 	followed 	regarding
curriculum 	(dropping 	two 	classes 	and adding 	a 	section 	to 	another)
and hiring one 	teacher 	(Bobby Downs). 	As 	is 	the usual practice
in the agriculture area, 	he discussed both matters with staff
members 	and attempted 	to 	reach a 	consensus.
Obad 	testified 	that 	he 	has 	corrected 	teachers 	in his 	area 	on
such matters 	as 	the processing 	of 	purchase 	order 	requests,
procedures 	in the 	classroom and at 	fairs, 	and the use 	of
vehicles.
Kenneth Tucker, 	area 	coordinator 	for agriculture 	for 2-1/2
years prior to Obad, 	also testified. 	Like Obad, 	he met with area
staff 	twice 	a month.
Tucker's 	experience with 	the 	hiring process 	involved 	Kim
Donaher, 	a student 	teacher under his predecessor, 	Lloyd McCabe,
who 	had 	recommended 	that 	she 	be 	retained as 	a 	regular 	teacher.
As McCabe's 	successor, 	Tucker's 	recommendation was 	solicited by
the 	superintendent; 	Tucker told Moore 	that he agreed with
McCabe's 	recommendation.
Tucker recommended that Abe 	Perez, 	an employee 	of Merced
County ROP, 	be 	dismissed 	from the agriculture area. 	A week or 	so
after he made 	this 	recommendation 	(at 	the 	end of 	the 	school
year), 	Perez was 	transferred by the 	county to another district.
Tucker also 	recommended 	that 	Jan Maddux, 	also an employee 	of
Merced County ROP who was 	working part-time 	for 	the 	District,
assume 	Perez's periods 	the 	following school year, 	which she did.
8
8

Tucker 	testified 	that 	he 	informally 	disciplined 	teachers 	in
his area. 	For example, 	he 	told one 	teacher not 	to 	let 	students
drive 	farm machinery 	or he 	would 	"write 	him up." 	He 	also 	issued
memoranda 	to 	the 	agriculture 	staff 	reminding 	them of 	such
responsibilities 	as 	utilizing 	their 	student 	project 	supervision
period and putting doors 	on a newly built 	storage 	shed. 	Tucker
also 	testified 	regarding his 	responsibility 	in monitoring 	of 	the
agriculture department budget, 	which is 	larger than other
district 	departmental budgets 	($30,000) 	due 	to a state grant.
Harry Maddux was agriculture area 	coordinator 	from 1977- 87.9
He 	received 	one 	period of 	release 	time 	for his 	area 	coordinator
responsibilities.
Maddux 	testified 	that 	five 	persons 	were 	hired 	during 	this
period. 	He stated that, 	although the applicants were 	interviewed
by the area staff and a 	consensus was 	reached, 	he made 	the
ultimate 	recommendation 	to 	the 	superintendent. 	These
recommendations were never rejected. 	In that 	same vein, 	Maddux
described 	the assignment 	of 	classes 	in his 	area as 	a
collaborative process, 	with the ultimate 	responsibility regarding
who 	to 	recommend 	to 	the 	superintendent 	for 	specific 	assignments
resting 	with 	him.
At 	some 	time prior 	to 	1991, 	Maddux also served as area
coordinator 	for vocational 	education and 	industrial 	arts. 	When
these 	areas were 	separated out, 	he 	recommended 	that 	Leona
9Lloyd McCabe, 	who did not 	testify, 	was 	agriculture area
coordinator from 1987 	until 	Tucker's 	tenure began.
99

Pistoresi 	and John McLaughlin be made 	the 	area 	coordinators; 	his
recommendations 	were 	followed. 	He 	recommended 	that 	Lloyd McCabe
be 	hired as 	his 	replacement, 	and also 	recommended subsequent
agriculture 	area 	coordinators 	Kenneth 	Tucker 	and 	Steve 	Obad.
Maddux stated 	that 	he 	recommended 	to Moore 	that 	Doug Thomas,
a probationary 	teacher not 	be 	retained; 	Thomas 	was 	not 	hired back
the 	following year. 	He also 	testified that 	two 	other
certificated 	employees 	resigned 	after he 	gave 	them negative
evaluations. 	Maddux verbally 	reprimanded 	employees 	regarding
such matters 	as 	not 	following 	through 	on 	their 	supervision of
student projects, 	i.e, 	not 	contacting parents when necessary and
not 	showing up at 	fair activities 	as 	required.
Humanities 	Area 	Coordinator
Birt 	McKinzie 	has been area 	coordinator 	for humanities
(English and Foreign Language) 	for approximately 11 years. 	In
addition 	to herself, 	there are 	four other 	instructors 	in her area
with whom she 	holds monthly meetings.
As part 	of her responsibilities, 	she 	testified that 	she
makes 	assignments 	regarding classes. 	For example, 	since speech
competitions 	are 	scheduled in the 	spring, 	she ensures 	that 	speech
units 	are 	taught 	in January. 	She also works with the 	area 	staff
to 	coordinate 	the assignment 	of 	research papers 	so as 	not 	to
overtax the 	library.
McKinzie 	testified that, 	several years ago, 	teacher Linda
Peterson was 	unhappy with 	some 	classes 	that McKinzie 	had assigned
to her. 	In an evaluation done 	in June 	1990, 	McKinzie recommended
10

that 	Peterson not be retained. 	However, 	Peterson was 	retained
until 	August 	1991, 	when she 	requested and was 	granted a 	transfer
to 	the 	continuation high school.10
McKinzie 	testified 	regarding 	the 	hiring 	of 	seven 	instructors
in 	the humanities 	area during her tenure 	as 	area 	coordinator.
She 	interviewed four of 	these 	instructors with the principal, 	and
they jointly 	recommended them for hire 	to Moore. 	It 	is 	her
understanding 	that 	she and 	the 	principal 	must 	agree 	on a
candidate before 	forwarding a 	recommendation 	to Moore. 	However,
three 	of 	these 	teachers 	were 	hired without 	being 	interviewed by
McKinzie. 	Patty Pistoresi, 	an 	intern in the District whose work
was 	known 	to McKinzie and Green, 	was 	recommended to Green by
McKinzie 	and 	subsequently hired without 	an 	interview. 	Wendy
Cripe 	was 	recommended 	for 	interviewing by McKinzie 	based 	on a
review of 	her application. 	She was 	interviewed, 	along with other
applicants, 	without McKinzie's participation 	(she was 	out 	of
town) 	and subsequently hired. 	Another teacher, 	Tony Cabezut, 	was
hired without 	McKinzie's 	involvement.
McKinzie 	has 	issued memoranda 	to humanities 	staff 	advising
them of various matters. 	For example, 	she wrote memos 	reminding
them of 	due dates 	for submitting 	their course objectives, 	that no
further expenditures were 	to be made due 	to a depleted budget,
and 	that 	a meeting had been 	scheduled 	to 	discuss 	the 	budget
10Despite 	the 	District's 	assertion 	that 	teacher Dwight
Benafield was 	not 	retained based 	on McKinzie's 	evaluation and
recommendation, 	McKinzie's 	testimony 	regarding 	Benafield was
internally 	inconsistent 	and 	cannot 	be 	relied upon.
11

problem. 	She 	has 	also 	spoken to 	teacher Patty 	Pistoresi 	to
correct her behavior, 	i.e., 	once, 	to admonish her for using an
inappropriate 	expression 	in 	the 	classroom and another 	time 	to
tell 	her not 	to 	take a student 	home without making prior
arrangements with the 	office.
McKinzie also serves as media director, 	i.e., 	area
coordinator 	for the 	library. 	In that 	capacity, 	she oversees 	and
evaluates 	one 	classified library clerk, 	Kathy Chambers, 	who has
been employed in that position for eight years. 	In 1986, 	she
issued a 	letter of 	reprimand 	to 	Chambers 	reminding 	her 	of 	her
hours 	and duties.
Chambers 	also 	testified 	regarding 	a meeting 	she 	had with 	the
superintendent 	last 	year 	to 	complain about McKinzie's 	evaluation
of 	her. 	In that meeting, 	Moore 	offered to perform her evaluation
himself 	if 	it would make 	her more 	comfortable.
Industrial 	Arts 	Area 	Coordinator
John McLaughlin has 	been 	industrial 	arts 	area 	coordinator
for three years. 	There 	is one other teacher in his area, 	an auto
shop 	instructor, 	who also works 	part-time 	for Merced County ROP.
McLaughlin has 	monthly meetings 	with this 	employee. 	There have
been no hires 	in his 	area during his 	tenure 	as 	area 	coordinator.
McLaughlin has 	acted as 	a 	go-between 	for his 	area 	and 	the
maintenance 	and 	driver 	training 	areas 	when 	conflicts 	have 	arisen
between employees 	regarding 	the use 	of machines 	or vehicles.
Robert 	Hoffer was 	area 	coordinator 	for 	industrial 	arts,
drivers 	education, 	and business 	education 	from 19 73-74 	through
12

1987-88, 	when he retired. 	As area coordinator, 	he received one
period 	release 	time 	and 	held monthly meetings 	with 	area 	staff
members.
Hoffer 	recommended 	two 	employees 	who were 	hired 	into 	the
industrial arts area, 	one of whom, 	Pat Noian, 	was also
interviewed by 	the 	superintendent 	and the 	other, 	current 	area
coordinator McLaughlin, 	who was 	already a district 	employee 	in
another department. 	McLaughlin 	testified that 	he was 	also
interviewed 	for 	this 	teaching position by 	the 	superintendent, 	the
principal 	and the 	dean of 	students.
Hoffer 	testified 	that 	he 	considered 	it 	his 	responsibility as
area 	coordinator 	to 	inform 	instructors 	when 	they were violating
district policy, 	and, 	to that end, 	he 	issued written directives
to 	correct 	such 	inappropriate 	behavior as 	tardiness 	and
disrupting a 	class 	in 	session by walking 	through 	it 	and gesturing
to 	students.11 Although Hoffer 	testified 	that 	he 	assigned
teachers 	to either automobile 	or simulator 	instruction, 	he
explained 	that 	the 	schedule 	was 	worked 	out 	collaboratively with
the 	teachers, 	and that he merely reminded them of 	the 	schedule.
Math/Science 	Area 	Coordinator
David 	Pettit 	was 	hired by 	the District 	as math/science 	area
coordinator 	in August 	1989. 	There are 	four other 	instructors 	in
11In its brief, 	the District 	asserts 	that 	teacher John
Landgren was 	terminated as 	a 	result 	of 	an evaluation by Hoffer.
However, 	at 	the hearing, 	both parties 	stipulated that 	Landgren
was 	not 	dismissed 	from the 	District 	for 	cause.
13

this 	area, 	and Pettit 	receives 	release 	time 	on an as-needed basis
for 	evaluating 	them.
•Regarding his 	role 	in the grievance process, 	Pettit
testified 	that 	science 	teacher 	Jennifer Bredberg 	filed a
grievance 	with 	him concerning 	an 	evaluation 	she 	was 	given by 	the
principal; 	however, 	the grievance was 	referred to the principal
for action since, 	as area coordinator, 	Pettit does not have the
authority 	to undo actions 	taken by the principal.12
Pettit 	testified 	that 	he 	occasionally assigns 	work 	to 	the
staff 	in his area. 	For example, 	he divided an accreditation
study 	into portions 	which were 	assigned 	to 	each 	teacher and
collated 	by 	him.
There 	have been seven 	employees 	hired 	in 	the math/science
area since 	19 89; 	Pettit was 	not 	involved 	in the hiring process
for 	four 	of 	them. 	The 	other three were 	interviewed by himself
and Green, 	and 	they agreed to 	recommend 	them for hire. 	Pettit
and Green also 	had 	several 	discussions 	regarding 	Pettit's 	on-
going observation and evaluation of Margaret 	Thissen, 	a math
teacher whom he 	recommended not be 	retained; 	she 	was 	subsequently
reassigned 	to another 	department. 	Pettit 	also 	testified 	that 	he
recommended that 	teachers 	Gonzales 	and May not 	be 	retained. 	His
recommendation 	regarding 	Gonzales 	was 	made 	through 	the 	evaluation
process; 	Gonzales was 	not 	rehired. 	May left 	the District prior
to his 	formal 	evaluation. 	In his 	final 	evaluation of 	John Cho,
12See District Exhibit 	10.
14

Pettit 	recommended that 	Cho be 	retained; 	however, 	Cho was 	not
retained.13
Pettit 	has 	issued letters 	to area 	staff 	regarding 	such
issues 	as 	their 	lack 	of 	professional 	conduct 	around 	other
teachers 	and 	lack of 	attendance and 	tardiness 	at meetings. 	While
one 	of 	the 	letters 	regarding attendance/tardiness 	threatened
"administrative action" 	if 	the behavior continued, 	no evidence of
any such action was 	produced.
Charles 	Heimstra was 	the math/science 	area 	coordinator 	for
approximately 12 	years before he 	retired in 1989. 	He
received 	one period 	of 	release 	time 	as 	area 	coordinator.
Heimstra's 	testimony 	centered 	on his 	participation 	in 	the
hiring process 	when he was 	area 	coordinator. 	He 	stated that 	the
process 	was 	done by 	committee 	during 	the 	last 	several 	years 	of
his 	tenure. 	Previously, 	he 	conducted preliminary interviews with
the 	candidates, 	who were 	then also 	interviewed by the
superintendent 	or principal. 	He 	traveled out 	of 	state 	to
interview one 	candidate, 	whom Moore 	had 	interviewed by 	telephone.
The 	applicant 	was 	offered 	the position based upon his
recommendation; 	however, 	she was unable to relocate.
Heimstra evaluated teacher Edward Gray in 	19 82 	and 19 83 	and
recommended that 	Gray not be 	retained; 	he was 	transferred to 	the
continuation high 	school.
13Green 	testified 	that 	Pettit made 	a verbal 	recommendation 	to
dismiss 	Cho; 	however, 	since 	this 	testimony was unsubstantiated by
Pettit and in direct 	conflict with the written evaluation, 	it 	is
not 	credited.
15

Performing Arts 	Area 	Coordinator
Donald Thissen 	has 	been 	the 	performing 	arts 	area 	coordinator
for 	four years. 	He 	oversees 	one non-certificated employee, 	Debby
Donahue, 	who has 	worked on a year-to-year basis as 	color guard14
advisor 	since before 	Thissen became 	area 	coordinator. 	Donahue
assists 	him, 	much like a 	coach, 	in teaching 	the 	color guard one
period a day, 	and some evenings and Saturdays. 	Thissen evaluates
Donahue, 	and 	testified that 	she would not 	be 	retained 	if 	he
recommended her dismissal.
Physical 	Education Area 	Coordinator
Mike 	Little 	has 	been 	the 	area 	coordinator 	for physical
education and athletic director since 	1989. 	Little's 	area
coordinator 	responsibilities 	include making 	suggestions 	regarding
curriculum and grading policy; 	making 	scheduling 	assignments
regarding which periods 	specific 	activities 	should 	occur;
ordering 	supplies 	and equipment; 	and evaluating 	the 	one 	full-time
physical 	education teacher. 	There are 	three 	instructors 	who 	each
teach one period of physical 	education whom he 	does 	not 	evaluate.
Little 	receives 	one period of 	release 	time 	as 	athletic
director. 	He 	testified 	that 	his 	athletic 	director duties 	include
coordinating the 	13 	member coaching 	staff, 	of whom 4 	are
certificated employees 	of 	the District 	and the 	others 	are 	"walk-
on" 	coaches; 	finding, 	selecting and interviewing coaches;
preparing the budget 	for athletics; 	arranging athletic 	schedules,
14The 	color guard is made up of 	letter girls 	and 	flag girls;
they are 	taught 	dance 	routines 	using 	flags 	or other equipment.
16

including 	ordering 	transportation, 	"ordering" 	and paying
officials; 	acting as a go-between for the 	coaches 	and
administration, 	and serving on the boards 	of 	directors 	of 	the
Booster 	Club 	and 	the 	Park and Recreation Department. 	Little
conducts 	the preliminary 	interviews 	for coaches; 	Green also
interviews 	the candidates, 	sometimes 	informally. 	Little's
recommendations 	for hire are 	typically 	followed; 	however, 	his
request 	that 	teacher Doug 	Espinola be 	hired as 	a 	coach was 	turned
down by Moore. 	Little has 	changed assignments 	of 	coaches, 	and
has made 	assignments 	about 	which 	the principal 	had 	expressed
reservations 	at 	least 	twice. 	He has 	also 	recommended 	the
promotion of 	individuals 	from assistant 	to head 	coach. 	This 	year
Little 	recommended 	to 	Green 	that 	instructor May be 	removed 	from
teaching a physical 	education 	class; 	this 	recommendation was
followed. 	In all 	of 	the 	examples given to 	illustrate his alleged
supervisory authority, 	Little 	testified 	that 	he 	consulted with
Green prior 	to making 	the 	recommendation.
While 	Little has 	never been 	involved 	in a 	formal 	grievance,
he 	has 	been 	involved 	informally 	in 	resolving problems 	between
coaches 	and staff. 	He has 	also admonished the 	coaches 	when he
felt 	they were 	lacking 	in professional 	demeanor.
Social 	Studies 	Area 	Coordinator
Conrad Gaunt 	has been employed by 	the District 	for 2 7 years,
and has 	been 	the 	social 	studies 	area 	coordinator 	for 	the 	past 	4-5
years. 	He 	receives 	release 	time upon request 	to evaluate 	the 	two
other teachers 	in his area, 	one of whom is Linda Veatch, 	the
17

student activities 	area coordinator. 	He 	conducts monthly
meetings 	with 	the 	social 	studies 	staff.
Some 	social 	studies 	class 	assignments 	are made by Gaunt 	in
collaboration with Green or Moore; 	some are made without Gaunt's
input. 	He did 	independently assign one 	class 	to a 	teacher
contrary 	to 	that 	teacher's wishes; 	the 	class 	constituted an extra
assignment 	which had 	to be 	taught 	either by 	that 	teacher 	or Gaunt
himself.
Gaunt's 	recommendation 	that 	Linda Veatch be 	hired as 	a 	full-
time 	social 	studies 	teacher when a position became 	available 	was
followed; 	Veatch was 	teaching 	three 	or 	four 	classes 	in the 	area
at 	the 	time. 	Two other teachers were assigned to his 	area
without 	his 	input 	or request.
Gaunt 	testified 	regarding 	two 	recommendations 	he made
concerning transfers 	of 	teachers 	into his 	area. 	In the 	first
instance, 	Moore 	informed him that 	a 	teacher was 	needed to 	fill 	a
position 	immediately, 	and that 	he 	should decide which of 	two
individuals 	already 	employed by 	the 	District 	should be 	selected.
Gaunt 	recommended 	that 	Ron Seals 	be 	transferred 	to 	the position
from the 	continuation high school; 	Seals was 	given the position.
In the 	second instance, 	he 	recommended that 	a teacher whose 	field
was math, 	not social 	studies, 	not be assigned to his area. 	The
teacher himself 	agreed and left 	the District 	at 	the 	end of 	the
school year.
18

Student 	Activities 	Area 	Coordinator
Linda Veatch has 	been 	student 	activities 	area 	coordinator
for the 	last 	three 	of 	her five years with the District. 	She also
teaches 	four periods 	in the social 	studies area, 	where she 	is
evaluated by Gaunt. 	Veatch 	is 	released one period 	for her
student 	activities 	responsibilities 	which 	include 	coordinating
all 	student 	activities 	as 	well 	as 	assisting 	the 	instructor
teaching 	the yearbook 	class 	with 	the 	financial 	aspects 	of 	the
yearbook. 	Veatch has 	issued memos 	to 	club advisors 	regarding 	the
proper District 	procedures 	for writing purchase 	orders.
Prior to 	this year, 	there was 	one probationary teacher 	in
Veatch's 	area whom she 	evaluated. 	That 	teacher 	is 	currently on
leave 	of 	absence, 	and Veatch has 	been 	instructed not 	to 	evaluate
her replacement, 	who 	is 	the principal 	of 	the adult 	school.
Vocational 	Education Area 	Coordinator
Leona 	Pistoresi 	has 	worked 	for 	the 	District 	for 	8-9 	years,
and 	had been 	the 	vocational 	education 	area 	coordinator 	for 	1-1/2
years 	at 	the 	time 	of 	the hearing. 	She 	testified that 	she
contracted 	for 	30 	days 	release 	time as 	area 	coordinator 	this
year; 	last year she 	received 	release 	time 	on an as-needed basis
for evaluating 	the 	teachers 	in her area.
There 	are 	two 	other vocational 	education 	instructors 	in
addition 	to 	Pistoresi 	whom she 	evaluates 	and with whom she 	holds
monthly meetings. 	Pistoresi 	has 	asked her area 	teachers 	to
gather 	information 	in preparation 	for writing 	grants 	and
developing 	ideas 	for 	career paths 	for students.
19

Administrative Assistant 	(to 	the 	Superintendent)
Maureen Riley has 	held the 	dual 	position of 	counselor/
administrative 	assistant 	since 	the beginning 	of 	the 	1990-91
school 	year. 	Riley 	carries 	a 	full 	counseling load and
testified 	that 	she 	spends 	approximately 	85-90 	percent 	of 	her 	time
as 	a 	counselor and 	the 	remainder as 	an administrative 	assistant.
To date, 	her duties 	as an administrative assistant 	have been
limited to writing grants; 	she has 	not participated 	in
negotiations 	and 	has 	had 	no bargaining-related 	training.
Testimony was 	unclear 	regarding 	the 	time 	frame 	for past
certificated negotiations, 	although 	it 	is uncontested that 	the
most 	recent 	collective bargaining 	agreement 	between 	the 	District
and 	the Association at 	the 	time 	of 	the 	hearing 	expired 	in June
1991. 	Both Riley and Moore 	testified that 	Riley was 	not prepared
to be 	brought 	into 	the 	certificated negotiations 	which were 	at 	an
impasse when 	she began as 	administrative 	assistant 	in the 	fall 	of
1990. 	PERB records, 	however, 	do not reflect the existence of an
impasse at 	this 	time.15
A request 	for 	impasse 	determination 	(PERB 	Case No. 	S-M-1818)
was 	filed with PERB on February 20, 	1992, 	over a successor
agreement, 	proposals 	for which were 	sunshined in June 	and July of
1991. 	According to that 	request, 	negotiations began in September
1991 	and 	six sessions were held prior to 	filing 	the 	request. 	The
15PERB 	records 	do 	reflect 	that 	an 	impasse 	(PERB 	Case
No. 	S-M-1635), 	apparently over reopeners, 	had been reached in the
certificated unit 	on February 26, 	1990; 	notification of
settlement was 	received in July 1990, 	prior to Riley's 	employment
as 	administrative assistant.
20

District's 	bargaining 	team for 	these 	negotiations 	consisted 	of
the director of guidance, 	the business manager and the District's
attorney. 	No 	evidence was 	presented 	that 	Riley was 	involved 	in
these negotiations beyond being 	"made aware" 	of 	them by Moore.
Moore 	testified 	that 	he 	intended 	to 	include 	Riley 	in
classified negotiations 	last 	year, 	but 	that 	they were 	concluded
at 	the 	initial 	meeting. 	No 	other negotiations 	have 	taken place
since 	that 	time. 	Moore 	stated 	that 	he plans 	to have Riley assist
him 	in 	formulating policy 	and developing 	strategy 	for bargaining,
as well as 	confer with him, 	and, 	when necessary, 	the Board of
Education, 	regarding the status of negotiations 	in the 	future.
According 	to Moore, 	previous 	administrative assistants 	have been
involved 	in the negotiations process. 	Lloyd McCabe,
administrative 	assistant 	from 1980-86, 	was 	involved 	in
formulating 	strategy 	for 	both 	certificated 	and 	classified
negotiations, 	and sat at 	the 	table during the 	classified
negotiations. 	Moore 	testified 	that 	the 	two 	subsequent
administrative assistants, 	Alberta Hargas 	(19 86-87) 	and Harry
Maddux 	(1987-89), 	were 	involved in formulating strategy and
consulting with Moore 	regarding negotiations, 	but 	had no 	role 	at
the 	table.16 Maddux testified that, 	in his 	role as
administrative 	assistant, 	he was 	asked his 	opinion regarding a
teacher 	salary 	increase and personnel 	projections, 	and 	that 	he
16Moore 	also 	testified 	regarding many 	other 	functions 	that
these 	employees 	performed while 	they were 	serving 	as 	his
administrative assistant. 	Since none 	of 	these duties 	are
relevant 	to a 	finding of 	confidential 	status, 	they are not
discussed 	herein.
21

met 	and discussed the progress 	of 	negotiations 	with 	the
management 	team. 	He also 	stated 	that 	he 	spent 	80 	percent 	of 	his
time 	while 	administrative 	assistant 	performing 	his 	counseling
responsibilities, 	in addition to which he 	taught 	a two period
class.
DISCUSSION
SUPERVISORY 	ISSUE
Government 	Code 	section 	3540.1(m) 	defines 	a 	supervisory
employee as 	follows:
"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.
Since 	the definition of 	a 	supervisor 	is written 	in the
disjunctive, 	the performance 	of 	any one 	of 	the 	enumerated actions
or 	the 	effective power to 	recommend 	such action 	is 	sufficient 	to
render an employee 	a 	supervisor under EERA. 	(Sweetwater Union
High School District 	(1976) 	EERB Decision No. 	4;17 Office of 	Kern
County Superintendent 	of 	Schools 	(1985) 	PERB Decision No. 	533.)
PERB has 	held 	that 	the 	party 	seeking 	to 	exclude 	an employee
from statutory 	coverage 	as 	a 	supervisor must 	satisfy a burden 	of
demonstrating 	that 	"the 	specific 	task 	is 	regularly performed and
17Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment Relations Board 	(EERB).
22

not 	a 	sporadic 	or atypical 	exercise 	of 	duties." 	(California State
University 	(1983) 	PERB Decision No. 	351-H.)
In New Haven Unified School 	District 	(1977) 	EERB Decision
No. 	14, 	the Board found that administrative activities 	such as
balancing a departmental 	budget, 	providing 	leadership 	in 	the
development 	of 	curriculum, 	and presiding at 	department meetings
were not 	supervisory activities. 	In that 	case, 	as here, 	those
activities 	were 	determined 	to be 	routine 	in nature 	and 	require
little 	exercise 	of 	independent 	judgement.
In 	San Diego 	Community College District 	(1977) 	EERB
Decision No. 	28, 	the Board cited National 	Labor Relations Board
precedent 	holding 	that, 	while 	the 	ratio of 	supervisors 	to 	rank-
and-file employees 	is not always determinative, 	in cases where
the 	ratio 	is 	unusually high and at 	sharp variance 	with 	the 	norm,
it 	is 	a highly persuasive 	factor militating 	toward 	inclusion 	of
the 	alleged supervisors 	in the bargaining unit. 	(Commercial
Fleet Wash, 	Inc. 	(1971) 	190 NLRB 326 	[77 LRRM 1156]. ) 1 8 The
Board found that, 	in such cases, 	a closer scrutiny of 	the
proposed 	supervisory positions 	is 	required. 	(San Diego 	Community
College District, 	supra) . 	In this case, 	the ratio of
supervisory/management personnel 	to 	rank-and-file 	employees 	is 	16
to 26, 	an unusually high ratio 	in a public 	school 	setting,
particularly 	one 	as 	small 	as 	the 	Chowchilla Union High School
18While 	the National 	Labor Relations Act, 	unlike EERA,
excludes 	supervisory employees 	from coverage, 	the 	test used 	to
determine 	the 	supervisory 	status 	of 	an 	employee 	is 	substantially
the same.
23

District.19 Thus, 	the alleged supervisory responsibilities 	of
the 	area 	coordinators will 	be 	considered 	in light 	of 	this 	factor.
The 	Board has 	held 	that 	performing 	evaluations 	alone 	is 	not
an indicia of 	supervisory status, 	but 	that 	it must 	also be 	shown
that 	the 	alleged 	supervisor 	effectively 	recommends 	the 	ultimate
outcome 	of 	that 	evaluation process. 	(Hemet Unified School
District 	(1990) 	PERB Decision No. 	820; 	Cantua Elementary School
District 	(1983) 	PERB Decision No. 	295.) 	In this case, 	the area
coordinators 	consult 	with 	the principal 	prior 	to writing an
evaluation and presenting 	it 	to a teacher. 	Furthermore, 	the
principal 	also 	evaluates 	all 	certificated employees, 	including
the area coordinators. 	In most, 	if not all, 	cases where a
personnel 	action 	is 	recommended 	to 	the 	superintendent 	based upon
these 	evaluations, 	the area 	coordinator and the principal 	first
discuss 	the 	recommendation and 	reach agreement 	thereon.
Therefore, 	any supervisory weight 	given 	to 	the 	role played by
area 	coordinators 	in the 	evaluation process 	is 	considerably
diminished.20
19In both 	San Diego 	Community 	College 	District 	and 	Commercial
Fleet Wash. 	Inc., 	supra. 	the ratio of management/supervisory to
bargaining unit 	personnel 	was 	approximately nine 	to 	eight.
20The Association argues 	that 	little 	or no 	significance
should be 	given 	to 	the 	evaluation 	responsibilities 	of 	the 	area
coordinators 	since 	the District 	has 	not 	complied with 	its 	own
policy and 	Education 	Code 	requirements 	for 	certification 	of
competency 	in the 	evaluation process. 	The District 	disputes 	this
assertion. 	In any event, 	compliance with these 	regulations 	is of
limited 	relevance 	and 	not 	persuasive.
24

Agriculture 	Area 	Coordinator
Steve 	Obad had been agriculture 	area 	coordinator 	for 	less
than six months 	at 	the time 	of 	the hearing, 	although he had been
an agriculture 	instructor 	for 	14 	years. 	He 	testified 	that
recommendations 	regarding 	curriculum and 	hiring 	are 	discussed
with 	the 	area 	staff 	in an attempt 	to 	reach a 	consensus 	before
being 	forwarded 	to 	the principal 	and/or 	superintendent. 	During
his 	limited tenure, 	Obad has 	corrected area teachers, 	but 	only
insofar 	as 	reminding 	them to 	follow 	established District
procedures.
Obad's predecessor, 	Kenneth Tucker, 	testified regarding a
hiring 	recommendation he made, 	but 	the 	record reveals 	that 	he was
merely passing 	on a 	recommendation 	of 	his predecessor, 	under whom
the 	applicant 	had been a 	student 	teacher. 	Tucker's
recommendations 	regarding 	transfer and assignment 	of 	classes 	(one
example each) 	were apparently followed. 	However, 	these 	instances
are 	simply 	too 	isolated 	to be 	indicative 	of 	supervisory
authority. 	Tucker 	issued daily memoranda 	to 	agriculture 	staff
reminding 	them of 	their 	departmental 	responsibilities 	and
occasionally 	admonished 	them 	regarding minor 	infractions 	of 	area
policy and procedures. 	In this 	role, 	he 	functioned as a
leadperson working 	to 	ensure 	the 	smooth operations 	of 	the
agriculture 	area.
Harry Maddux also 	testified 	regarding his 	duties 	as 	area
coordinator prior to 	1987. 	While his 	tenure 	is 	too 	remote 	to be
determinative of 	the 	status 	of 	the 	current area coordinator, 	it
25

is noted that, 	even were 	it given weight, 	his responsibilities
would 	fall 	short 	of 	supervisory.
For these 	reasons, 	the agriculture area coordinator is 	found
not 	to be 	a 	supervisor.
Humanities 	Area 	Coordinator
Birt 	McKinzie 	testified 	that 	she 	assigns 	work 	to 	the
humanities 	staff. 	However, 	the record reveals 	that 	the 	type of
assignments 	she makes 	are 	nothing more 	than 	the 	"routine
application 	of 	established policy 	or practice" 	and do not 	require
the use of 	independent judgement. 	(Cantua. 	supra.) 	Regarding
- -
tenure, 	she 	testified about 	one 	recommendation 	to 	release an
employee 	that was 	not 	followed.
During her tenure as 	area 	coordinator, 	McKinzie 	interviewed
four of 	the 	seven employees 	hired 	in her area with the principal;
she 	stated 	that 	she 	understood 	that 	they must 	reach agreement 	on
candidates 	to 	recommend to 	the 	superintendent. 	Three 	other
teachers 	were 	hired without 	her participation.
The memoranda 	that McKinzie 	has 	issued 	to 	the 	area 	staff
have been 	in the 	nature 	of 	reminders 	of District policy and
procedures, 	and her verbal 	admonishments 	have been in the nature
of 	counseling 	rather 	than disciplinary.
Testimony was 	also 	given 	regarding McKinzie's
responsibilities as media director. 	In that 	capacity, 	the only
evidence 	of 	her 	alleged 	supervisory 	authority proffered was 	that
she 	evaluates 	one 	classified employee 	(who was 	given 	the 	choice
of being 	evaluated by the 	superintendent 	only last year) 	and 	that
26

she 	issued that 	employee 	a 	letter of 	reprimand 	seven years 	ago.
These 	responsibilities 	over a non-unit 	employee 	are 	analogous 	to
those 	of 	a teacher's 	"supervision" 	of 	an instructional 	aide,
i.e., 	incidental 	to 	the performance 	of 	her professional 	duties
rather than in promotion of 	the employer's 	interest. 	(Redlands
Unified School District 	(1982) 	PERB Decision No. 	235; 	Glendale
Community College District 	(1979) 	PERB Decision No. 	88.)
For these 	reasons, 	it 	is 	determined that 	the humanities 	area
coordinator/media director 	is 	not 	a 	supervisory 	employee.
Industrial 	Arts 	Area 	Coordinator
No 	evidence 	was 	presented 	to 	conclude 	that 	John McLaughlin
has 	exercised any 	supervisory authority 	in his 	three 	years 	as
area coordinator. 	In fact, 	there 	is 	only one part-time
certificated employee 	in 	the 	industrial 	arts 	area beside himself.
While 	he 	has 	acted 	to 	resolve minor 	conflicts 	between his 	area
and others, 	his 	efforts appear to spring 	from a desire 	to
maintain a 	smooth 	functioning working 	environment, 	rather 	than
out 	of 	an obligation to the 	employer. 	(California State
University, 	supra.)
The 	recommendations 	for the hire 	of 	two 	employees by his
predecessor, 	Robert Hoffer, 	do not 	reach the level 	of 	supervisory
authority 	since 	both 	employees 	were 	also 	interviewed by 	the
superintendent 	and one by 	the principal 	and dean 	of 	students 	as
well. 	The assignment 	of work by Hoffer was 	not 	only routine but
also a 	result 	of 	collaboration with 	the 	area 	staff. 	(Monterey
Peninsula 	Community College District 	(1978) 	PERB Decision
27

No. 	76.) 	Finally, 	the 	issuance of memoranda regarding minor
infractions 	of District policy does 	not 	rise 	to 	the 	level 	of
disciplinary action and, 	therefore, 	is not 	indicative of
supervisory status. 	Thus, 	the 	industrial arts area coordinator
is 	not 	a 	supervisor within the meaning of 	the Act.
Math/Science 	Area 	Coordinator
David Pettit was 	not 	involved 	in the hiring 	of 	four 	of 	the
seven 	employees 	hired 	in 	the math/science 	area 	since 	he became
area 	coordinator; 	he 	collaborated with Green 	in hiring 	the 	other
three. 	Thus, 	his 	involvement 	in the hiring process 	is not
sufficient 	to 	render him a 	supervisor. 	The 	recommendation of 	his
predecessor, 	Heimstra, 	to hire one 	teacher whom he 	traveled out
of 	state 	to 	interview is 	diminished 	in light 	of 	the 	fact 	that 	she
was also 	interviewed, 	albeit by telephone, 	by the superintendent.
Furthermore, 	Heimstra 	testified that 	hiring was 	done by 	committee
during 	the 	last 	several 	years 	of 	his 	tenure as 	area 	coordinator.
Regarding 	reappointment, 	while 	Pettit's 	recommendations 	not
to 	retain 	two 	teachers may have been 	followed, 	his 	recommendation
to 	retain another was not. 	The 	evidence given by Heimstra 	in 	this
regard is 	so remote 	(19 82-83) 	as 	to be irrelevant.
Standing alone, 	the 	letters 	of 	reprimand issued to area
staff 	by 	Pettit 	can be 	characterized as 	counseling 	and 	reminders,
which, 	having resulted in no further action, 	fall 	short 	of 	the
type 	of 	"discipline" 	which may be 	considered 	supervisory.
For these 	reasons, 	the math/science area coordinator 	is 	not
a 	supervisory 	employee.
28

Performing Arts 	Area 	Coordinator
Donald 	Thissen 	oversees 	only 	one 	non-certificated 	employee
who assists 	him in 	teaching 	one 	class. 	While he 	is 	responsible
for 	evaluating her 	and 	testified 	that 	she 	would not 	be 	retained
if 	he 	so 	indicated, 	this 	testimony was purely speculative. 	No
evidence 	was 	presented 	regarding 	the 	exercise 	of 	any 	other
supervisory authority over this 	employee. 	Moreover, 	it appears
from the 	record 	that 	Thissen's 	"supervision" 	of 	this 	employee 	is
incidental 	to his 	"performance 	of professional 	duties 	rather 	than
in promotion of 	the 	employer's 	interests." 	(Redlands 	Unified
School District, 	supra: 	Glendale Community College District.
supra.) 	Thus, 	it 	is determined that 	the performing arts 	area
coordinator 	is 	not 	a 	supervisory employee.
Physical 	Education Area 	Coordinator/Athletics 	Director
Mike 	Little 	serves 	in a dual 	role as physical 	education area
coordinator and athletic 	director. 	The 	only duties 	he performs
which 	can arguably be 	considered 	supervisory are 	part 	of 	his
athletic director responsibilities. 	In this 	capacity, 	he has
played an 	significant 	role 	in hiring 	coaches, 	of 	which there were
four 	certificated 	individuals 	in the 	1991-92 	school 	year.
However, 	this 	responsibility, 	as well as 	those relating to
assignment 	(from girls to boys 	coach), 	promotion 	(from assistant
to head coach) 	and transfer, 	are diminished vis-a-vis 	their
supervisory effectiveness 	in light 	of 	the 	fact 	that 	all 	such
recommendations 	were made 	in 	collaboration with Green prior 	to
any action being taken. 	Furthermore, 	one 	recommendation made by
29

Little 	that 	a District 	teacher be 	hired as 	a 	coach was 	turned
down by Moore. 	Thus, 	it 	is 	found that 	the physical 	education
area 	coordinator/athletic 	director does 	not 	possess 	the 	authority
to warrant 	designating 	the position 	supervisory.
Social 	Studies Area 	Coordinator
Conrad Gaunt's 	successful 	recommendation that 	a 	teacher be
hired 	is 	countermanded by 	the 	fact 	that 	two 	other 	teachers 	were
assigned 	to his 	area without 	his 	input 	or 	request. 	Similarly,
while Gaunt 	has 	assigned 	classes 	to 	social 	studies 	teachers,
assignments 	have also been made without 	his 	input. 	The
assignment 	he made with which a 	teacher was 	unhappy was 	within
the 	narrow confines 	of 	a 	choice between 	that 	teacher and himself
and does 	not 	demonstrate 	a meaningful 	measure 	of 	independently
exercised 	control.
The 	significance 	of 	Gaunt's 	successful 	recommendation 	that 	a
teacher be 	transferred to his 	area 	is 	diminished 	in light 	of 	the
fact 	that Moore 	gave 	him two 	choices 	from which 	to make 	a
recommendation. 	(California State University, 	supra.) 	Thus, 	the
record does 	not 	support 	a 	finding 	that 	the 	social 	studies 	area
coordinator 	is 	a 	supervisor.
Student 	Activities 	Area 	Coordinator
Linda Veatch's 	alleged 	supervisory authority 	is 	limited 	to
two 	factors: 	(1) 	that she has 	issued memos 	to student 	club
advisors 	regarding proper District 	procedures 	for writing
purchase orders, 	and 	(2) 	that, 	in the past, 	she evaluated the
30

instructor teaching the yearbook class. 	In the 	first 	instance,
it must be noted that 	club advisors 	are District 	employees who
are members of other areas, 	and, 	furthermore, 	such memos are
merely reminders 	of 	established District policy. 	Secondly, 	no
evidence 	was 	presented of 	any action 	resulting 	from her
evaluation of 	the yearbook teacher. 	In fact, 	that teacher, 	who
was probationary for two years prior to 	the 	current year, 	was 	on
leave 	of 	absence 	and 	replaced by 	the principal 	of 	the
continuation high school, 	who Veatch was 	instructed not 	to
evaluate. 	For these reasons, 	it 	is 	found that 	the student
activities 	area 	coordinator 	is 	not 	a 	supervisory employee.
Vocational 	Education Area 	Coordinator
Leona 	Pistoresi 	had been 	area 	coordinator 	for vocational
education 	for 	1-1/2 	years 	at 	the 	time 	of 	the 	hearing. 	The 	only
alleged 	supervisory 	activities 	she 	testified 	about 	were
evaluating 	the 	two 	other 	teachers 	in her area and asking 	them to
gather 	information 	to help her write 	grants 	and develop 	career
paths 	for students. 	Neither of 	these activities 	is 	sufficient 	to
render 	this 	position 	supervisory.
CONFIDENTIAL 	ISSUE
Government 	Code section 3540.1 (c) 	defines a confidential
employee 	as 	one
who, 	in the course of his or her duties, 	has
access 	to, 	or possesses 	information relating to,
his 	or her employer's 	employer-employee 	relations.
31

"Employer-employee relations" 	includes, 	at least, 	employer-
employee 	negotiations 	and the processing of 	grievances.21
(Fremont Unified School District 	(1976) 	EERB Decision No. 	6.)
The mere 	access 	to 	or possession 	of 	confidential 	information by
an employee 	is 	insufficient, 	by itself, 	to designate an employee
as 	confidential. 	(Campbell Union High School District 	(1978) 	PERB
Decision No. 	66.) 	A confidential 	employee must 	function as 	such
in the 	regular 	course of his 	or her duties, 	meaning that more
than a 	fraction of 	the 	employee's 	time 	is 	spent 	on 	confidential
matters, 	although the 	frequency of access 	to confidential
information 	is 	not 	important. 	(Upper Lake Union Elementary
School District 	(1989) 	PERB Decision No. 	736; 	Imperial Unified
School District 	(1987) 	PERB Decision No. 	647.) 	The 	individual
must 	have 	access 	to 	or possess 	sufficient 	information to warrant
the 	conclusion 	that 	the 	employer's 	ability to negotiate with
employees 	from an equal 	posture might be 	jeopardized, 	and 	the
balance 	in 	employer-employee 	relations 	sought 	to be 	achieved by
EERA thus 	distorted, 	if 	the 	information was 	prematurely made
public. 	(Campbell Union High School District, 	supra.)
Because 	employees 	who are 	designated 	confidential 	are 	denied
representation 	rights under 	the 	EERA, 	PERB has 	held that 	the
number of 	confidential 	employees 	should consist 	of 	only 	"a 	small
nucleus 	of 	individuals" 	who assist 	the 	employer 	in developing
employer positions 	in the 	employer-employee 	relations 	arena.
21The District 	does 	not 	claim that 	the 	counselor/
administrative 	assistant 	has 	any 	role 	in grievance processing.
32

(Centinela Valley Union High School 	District 	(1978) 	PERB Decision
No. 	62, 	citing Sierra Sands Unified School District 	(1976) 	EERB
Decision No. 	2.) 	Hence, 	the exclusion of 	confidential 	employees
from statutory 	coverage dictates 	that 	section 3540.1(c) 	be
narrowly 	construed. 	(Los Rios 	Community College District 	(19 77)
EERB Decision No. 	18.)
In this case, 	the incumbent, 	Maureen Riley, 	has not
participated 	in any aspect 	of 	the 	negotiations 	process 	since
assuming 	the position of 	counselor/administrative 	assistant 	in
the 	fall 	of 	1990.22 The 	record reveals 	that proposals 	for both
the 	classified 	and 	certificated units 	have 	been developed 	during
that 	time, 	and at 	least 	some negotiation sessions have 	taken
place, 	all without her involvement. 	The assertion that 	she was
unable 	to participate 	in 	certificated negotiations 	because 	they
were at an impasse 	is without merit. 	Even if 	the 	record
supported the existence 	of an impasse at 	that 	time, 	impasse and
mediation are 	integral 	parts 	of 	the 	negotiation process.
According 	to Moore's 	testimony, 	Riley's predecessors were
involved 	in 	formulating 	strategy 	and 	consulting 	with 	him
regarding negotiations. 	Harry Maddux, 	administrative assistant
from 1987-89, 	testified that 	his 	opinion was 	solicited regarding
a 	certificated 	salary 	increase 	and personnel 	projections, 	and
that 	he met 	and discussed 	the progress 	of 	negotiations 	with 	the
management 	team. 	However, 	while Maddux may arguably have
22In 	its 	reply brief, 	the District 	states 	that 	Riley began
her tenure in mid-year 1990-91. 	However, 	as discussed above, 	she
testified that 	she began in the 	fall 	of 	1990.
33

performed 	confidential 	duties 	during his 	tenure 	as
counselor/administrative assistant, 	the 	incumbent has not.
The District, 	relying on Calexico Unified School 	District
(199 0) 	PERB Decision No. 	800, 	argues that the counselor/
administrative 	assistant 	should 	remain 	confidential 	based 	on 	her
job description, 	the status of her supervisor 	(Moore), 	and the
fact 	that 	she 	simply has 	not 	had 	the 	opportunity 	to perform
confidential 	duties. 	In Calexico, 	the alleged confidential
employee 	had 	occupied her 	newly-created 	position 	for 	only 	five
months 	at 	the 	time 	of 	the hearing, 	during which time no
negotiations 	had 	taken place 	and no 	grievances 	had been 	filed.
In this 	case, 	the position in question is not newly created, 	and
ample 	opportunity had 	existed 	for 	Riley 	to 	become 	involved 	in
some aspect 	of 	the negotiations process, 	e.g., 	development 	of
initial proposals.
For 	the 	reasons 	stated above, 	the position of 	counselor/
administrative assistant 	is 	found not 	to be 	confidential.
CONCLUSION AND 	ORDER
Viewed 	in the 	context 	of 	the unusually high ratio 	of
supervisory/management 	to bargaining unit 	personnel 	in 	the
District 	and for the 	reasons 	discussed above, 	it 	is 	found that
the 	responsibilities 	of 	the 	area 	coordinators 	are not 	supervisory
under the Educational 	Employment Relations Act. 	Therefore, 	the
unit 	modification petition 	filed by 	the 	Chowchilla Union 	High
School 	Faculty Association/CTA/NEA in Case No. 	S-UM-525 	is 	hereby
GRANTED.
34

It 	is also determined, 	for the reasons 	stated above, 	that
the 	position 	of 	counselor/administrative 	assistant 	is 	not 	a
confidential 	position within 	the meaning 	of 	the 	Educational
Employment Relations Act. 	Therefore, 	the unit modification
petition 	filed by 	the 	Chowchilla Union High 	School 	Faculty
Association/CTA/NEA in Case No. 	S-UM-552 	is 	also hereby GRANTED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with 	the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within
2 0 	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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	323 00.) 	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 set 	for 	filing 	. . . " 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	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
35

filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Jerilyn	Jer547, 	Jerilyn Gelt
Hearing 	Officer
36