State of California (Museum of Science and Industry) (PERB 1117S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA 	(MUSEUM OF
SCIENCE AND 	INDUSTRY),
Employer,
and
CALIFORNIA UNION 	OF 	SAFETY
EMPLOYEES,
Exclusive Representative.
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) 	Case No. 	S-UM-578-S
PERB Decision No. 	1117-S
September 	15, 	1995
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Appearances: 	State of California 	(Department 	of 	Personnel
Administration) 	by Roy J. 	Chastain, 	Labor Relations Counsel, 	for
State of 	California 	(Museum of Science and Industry); 	James 	P.
Whalen, 	Legal Representative, 	for California Union of Safety
Employees.
Before Garcia, 	Johnson and Caffrey, 	Members.
DECISION
GARCIA, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by 	the 	State
of 	California 	(Museum of 	Science and Industry) 	(State) 	to a
proposed 	decision 	(attached) 	by a hearing officer granting a unit
modification petition.1 After 	review of 	the 	entire 	record,
including the State's 	exceptions, 	the 	response 	to exceptions
filed by 	the 	California Union of 	Safety Employees 	(CAUSE),
transcripts, 	and briefs, 	the Board hereby adopts 	the proposed
decision.
1The petition was 	filed under 	PERB Regulation 	32781(a)(1).
(PERB Regulations are codified at Cal. 	Code Regs., 	tit. 	8, 	sec.
31001 	et 	seq.)

EXCEPTIONS 	FILED BY THE 	STATE
The 	State 	filed 	exceptions 	to 	the 	hearing 	officer's 	proposed
decision on several 	grounds. 	First, 	the State alleged that 	the
hearing 	officer made 	incorrect 	references 	to titles 	of 	the
affected 	employees, 	which 	" . . . 	tend 	to make 	one 	wonder whether
the 	hearing 	officer misread the 	evidentiary record." 	Second, 	the
State 	argued 	that 	the 	hearing 	officer 	failed to 	recognize 	the
amount 	of 	discretion that watch commanders 	have, 	and 	failed 	to
give 	them 	credit 	for 	instances 	where 	they 	"effectively 	recommend"
that 	certain actions be 	taken by the 	lieutenant 	or 	chief.2
Third, 	the 	State 	excepted to 	the 	finding 	that 	the work of 	the
watch 	commanders 	is 	"substantially similar" 	to 	that 	of 	their
officers, 	calling the hearing officer's 	statements 	"inaccurate"
and 	"misleading." 	The State 	claims 	that:
While 	it 	is 	true 	that 	the watch commanders
are 	in uniform, 	and 	spend a majority of 	the
time 	in the field, 	the nature of 	their
patrols are not 	the 	same as 	their officers.
(Exceptions, 	p. 	7.)
3
2The 	State 	identified examples 	of 	areas 	in which the watch
commanders 	exert 	such authority: 	transfer decisions; 	merit
salary adjustment 	recommendations; 	ordering overtime; 	writing
performance 	reports 	on officers; 	decisions 	on when an officer 	can
leave the museum grounds; 	assignment 	of officers 	on watch; 	and
"other 	supervisory 	indicia."
3Specific 	instances 	offered of 	how the 	"nature" 	of 	the
patrol 	differs 	between the 	watch 	commanders 	and others 	included
the 	following: 	statements 	regarding who does 	and who does 	not
drive what 	type or color of vehicle, 	with or without 	the 	"full
array of 	lights" 	on top; 	the 	fact 	that 	sometimes watch commanders
are dispatched 	first when a call 	comes 	in, 	but 	sometimes 	they are
not; 	the 	fact 	that 	sometimes watch commanders are 	the highest
ranking person on site, 	and hence 	"they exert 	complete authority
and make 	all 	judgment 	calls 	without 	conferring with 	the
lieutenant 	or the 	chief"; 	and finally, 	watch commanders 	earn more
than 	their subordinates.
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CAUSE'S 	RESPONSE 	TO 	EXCEPTIONS
In response 	to 	the 	State's 	first 	exception alleging 	that 	the
hearing 	officer made 	incorrect 	references 	to 	titles 	of 	the
affected employees, 	CAUSE 	responds 	that all 	parties 	to the
proceeding 	knew very well 	that 	witnesses 	who 	testified used 	the
various 	terms 	interchangeably. 	CAUSE 	states 	that 	this 	is an
attempt 	by the 	State 	to 	"confuse 	or distract" 	the 	Board and has
no bearing on 	the 	central 	issue 	in the 	case.
In 	response 	to 	the 	State's 	argument 	that 	the 	hearing 	officer
failed 	to 	credit 	the watch 	commanders 	(referring 	to 	them as
supervising museum security officers 	(SMSOs) 	in the 	response 	to
exceptions) 	with all 	the authority they do have, 	CAUSE points out
that the State's own witness, 	Chief Rudy Schultz 	(Schultz),
testified 	that 	"all 	of 	the 	essential 	decisions 	in his 	unit 	were
made 	exclusively by himself," 	with 	regular 	input 	from all 	members
of his unit 	(not just SMSOs, 	but officers as well). 	Testimony
from the 	personnel 	contributing 	such 	input 	established 	that 	Chief
Schultz makes 	the ultimate decisions 	in all 	the areas mentioned
by 	the 	State.
In response 	to 	the 	State's 	claim that 	the work of 	the 	SMSOs
is not 	substantially similar to that 	of 	their officers, 	CAUSE
disagrees, 	pointing 	to the 	"irrefutable 	testimony at 	hearing by
all 	of the witnesses."
Finally, 	CAUSE 	states 	that 	it 	is 	irrelevant 	that SMSOs 	earn
a 	higher 	salary 	than 	regular 	officers.
W	
3

DISCUSSION
Regarding 	the State's 	first 	exception, 	in which 	it 	claims
that 	the 	hearing officer misstated 	the 	titles 	of 	various 	affected
employees 	in the proposed decision, 	the Board 	finds 	that 	even if
that 	occurred, 	there 	is no showing 	that 	this 	constituted
prejudicial 	error.
The 	State's 	second 	exception 	claimed 	that 	the 	hearing
officer 	failed 	to 	recognize 	the 	amount 	of 	discretion 	that 	watch
commanders 	have, 	and 	failed to give 	them credit 	for 	instances
where 	they 	"effectively 	recommend" 	that 	certain actions 	be 	taken
by 	the 	lieutenant 	or 	chief. 	This 	exception essentially 	conveys
the 	State's 	disagreement 	with 	the hearing officer's 	legal
conclusion. 	As 	the hearing officer made 	clear, 	PERB's 	approach
to interpreting the Ralph C. 	Dills Act 	(Dills Act) 	section
3513(g),4 defining supervisory criteria, 	is well established.
PERB 	focuses 	on whether the 	employee performs 	any of 	the powers
specified in the statute, 	or has 	the power to 	cause action
4The Dills Act 	is 	codified at Government 	Code 	section 	3512
et seq. 	Section 3513(g) 	states:
(g) 	"Supervisory employee" 	means any individual,
regardless 	of 	the job description or title, 	having
authority, 	in the interest of the employer, 	to hire,
transfer, 	suspend, 	lay off, 	recall, promote, 	discharge,
assign, 	reward, 	or discipline other employees, 	or
responsibility to direct 	them, 	or to adjust 	their
grievances, 	or effectively to 	recommend this action,
if, 	in connection with the 	foregoing, 	the exercise of
this 	authority 	is 	not 	of 	a merely routine 	or 	clerical
nature, 	but 	requires 	the use of 	independent 	judgment.
Employees 	whose duties 	are 	substantially similar 	to
those 	of 	their subordinates 	shall 	not be 	considered 	to
be 	supervisory 	employees.
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through 	recommendation and 	the use 	of 	independent 	judgment.
Merely being 	involved 	in 	the 	decision-making process 	does 	not
make an employee a 	supervisor.5
Review of 	the 	testimony of 	the various 	parties 	supports 	the
hearing 	officer's 	characterization 	of 	the watch 	commanders 	as
nonsupervisory 	for 	several 	reasons. 	Most 	decisions made by watch
commanders 	are done pursuant 	to established guidelines, 	and 	often
the 	lieutenant 	or chief makes 	the ultimate 	judgment. 	The 	fact
that 	others 	review 	their 	recommendations 	(and have 	the power 	to
overrule 	or disapprove those 	recommendations) 	weakens 	the
position 	that 	the 	watch 	commanders 	have 	authority and 	exercise
independent 	judgment. 	Therefore, 	the State's 	second exception is
not persuasive.
In 	its 	third exception, 	the State 	claims 	that 	the hearing
officer 	erroneously 	found 	the work of 	the 	watch 	commanders 	to be
"substantially similar" 	to that 	of 	their officers. 	In support 	of
this position, 	the State 	claims 	that although both groups 	"spend
a majority of 	the 	time 	in the 	field, 	the nature 	of 	their patrols
are not 	the 	same 	as 	their officers." 	Although the 	State 	offered
several 	examples 	of 	how it believes 	the 	"nature" 	of 	the patrol 	by
officers and watch commanders 	is different, 	the 	examples 	offer
only superficial 	distinctions 	(e.g., 	type of vehicle used on
patrol). 	Even if 	the watch commanders are occasionally the
5See, 	e.g., 	The California State University 	(1983) 	PERB
Decision No. 	351-H, 	where the employees made disciplinary
recommendations 	and were 	involved 	in processing 	employee
grievances, 	but were not 	supervisory.
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highest 	ranking person on 	site 	and, 	during 	those 	occasions, 	the
watch 	commanders 	"exert 	complete 	authority and make 	all 	judgment
calls 	without 	conferring with 	the 	lieutenant 	or 	the 	chief" 	such
action 	does 	not 	elevate 	them to 	supervisory 	status. 	The
testimony 	does 	not 	support 	that 	the 	watch 	commanders 	had 	ongoing,
independent 	authority. 	Furthermore, 	the 	hearing 	officer's
conclusion 	that 	the 	work 	of 	the 	watch 	commanders 	and 	officers 	is
substantially 	similar 	is 	supported 	by 	the 	record.
ORDER
For 	these 	reasons 	and based upon 	the 	entire 	record 	in 	this
case, 	it 	is 	ORDERED 	that 	the petition 	of 	the 	California Union of
Safety 	Employees 	to 	include 	the 	classification 	of 	Supervising
Museum Security 	Officer 	at 	the 	State 	of 	California 	(Museum of
Science and 	Industry) 	in State 	Employee Bargaining Unit No. 	7:
(1) 	Is 	granted 	for 	the positions 	of watch commanders.
(2) 	Is 	denied 	for 	the position of 	lieutenant.
Member 	Johnson 	joined 	in 	this 	Decision.
Member 	Caffrey's 	dissent 	begins 	on page 	7.
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CAFFREY, 	dissenting: 	I dissent. 	Employees 	in the
classification of 	Supervising Museum Security Officer 	(SMSO),
serving 	in 	the 	capacity of watch 	commander/sergeant, 	are
supervisory employees under the Ralph C. 	Dills Act 	(Dills Act).
Therefore, 	the petition of 	the California Union of 	Safety
Employees 	(CAUSE) 	to 	include 	that 	classification 	in State
Employee Bargaining Unit No. 	7 	should be denied in 	its 	entirety.1
The Dills Act 	defines 	"supervisory employee" 	at 	section
3513(g):
"Supervisory employee" 	means 	any 	individual,
regardless 	of 	the 	job description or title,
having authority, 	in the 	interest 	of 	the
employer, 	to hire, 	transfer, 	suspend, 	lay
off, recall, promote, discharge, assign,
reward, 	or discipline other employees, 	or
responsibility to direct 	them, 	or to adjust
their grievances, 	or effectively to 	recommend
this action, 	if, 	in connection with the
foregoing, 	the 	exercise of 	this 	authority is
not 	of 	a merely routine 	or 	clerical 	nature,
but 	requires 	the use 	of 	independent 	judgment.
Employees 	whose 	duties 	are 	substantially
similar to 	those 	of 	their subordinates 	shall
not 	be 	considered 	to be 	supervisory
employees.
In applying 	this 	definition, 	the Board has 	held that 	the various
indicators 	of 	supervisory 	status 	are 	to be 	evaluated 	in 	the
disjunctive; 	that 	is, 	supervisory status may be granted where an
employee 	is 	found to perform even one 	of 	the 	enumerated
functions. 	(Unit Determination for the State 	of 	California
(1980) 	PERB Decision No. 	110c-S.) 	However, 	sporadic or nominal
1The Board agent 	correctly denied 	the 	portion 	of 	the 	CAUSE
petition 	dealing 	with 	the 	lieutenant 	position within 	the 	SMSO
classification. 	No 	exception to 	this 	determination has been
filed with 	the 	Board.
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exercise 	of 	the 	statutory 	functions 	is 	insufficient 	to 	confer
supervisory status. 	Independent 	judgment 	in the 	exercise 	of 	the
supervisory 	function, 	demonstrated by 	significant 	autonomy and
control 	over decision making, 	is 	required. 	(Id.) 	For example,
the 	authority 	to assign work does 	not 	confer 	supervisory 	status
on an employee 	if 	the work assigned 	is 	"so 	routine and well-
structured as 	to 	render 	the 	act 	of 	assigning 	that 	work 	little
more 	than an exercise of ministerial 	options." 	(Id. 	at p. 	9.)
Similarly, 	the assignment 	of work does not meet 	the 	statutory
criterion where 	there 	is 	substantial 	review or prior approval
involved, 	or the assignment 	is merely an application of
established policy. 	(Id.)
Where 	employees 	are 	found to meet 	one 	or more 	of 	the
statutory criteria, 	Dills Act 	section 3513(g) 	requires 	that 	their
duties 	be 	evaluated 	to determine 	if 	they are 	substantially
similar to those of 	their subordinates. 	If not, 	supervisory
status will be 	conferred. 	If 	so, 	they will 	not be considered
supervisory employees 	for purposes 	of 	the Dills Act. 	In applying
the 	"substantial 	similarity" 	provision, 	the Board has not 	relied
on a quantitative, 	or percentage-of-duties approach, 	instead
finding 	that 	substantial 	similarity no 	longer 	exists 	when 	"the
employees' 	supervisory obligation to 	the 	employer outweighs 	their
entitlement 	to 	the 	rights 	afforded 	rank-and-file 	employees."
(Id. 	at p. 	7-8.)
Applying this precedent 	to the evidence in this 	case, 	I
conclude 	that 	SMSOs 	serving as 	watch 	commanders/sergeants 	have
8

the 	authority and 	responsibility 	to assign and direct 	the 	work 	of
subordinate employees; 	and that 	the performance 	of 	these
supervisory 	functions 	is 	not 	sporadic 	or nominal 	and 	involves 	the
exercise 	of 	independent 	judgment.
Initially, 	it 	is 	critical 	to note that 	this 	case 	involves
law enforcement 	officers. 	The 	California Museum of 	Science and
Industry 	(Museum) 	employs 	its 	own police 	force which 	is
responsible 	for protecting 	the 	buildings 	and grounds 	located 	on
the 	140 	acres 	of 	Exposition Park in Los Angeles. 	Officers within
this force, 	including SMSOs, 	are armed peace officers, 	vested
with 	the power 	to enforce 	California 	law. 	The Museum police
force adheres 	to a strict 	chain of 	command. 	The 	chief 	of police
(chief) 	directs 	the entire force, 	consisting of 	five SMSOs 	(one
lieutenant 	and 	four watch commanders/sergeants) 	and 23 	officers.
Certain officers 	are 	designated as 	corporals 	and have 	the
authority to act 	as 	the watch 	commander/sergeant 	in the 	event 	of
his absence.
The Museum police 	force operates 	24 	hours per day, 	seven
days 	a week, 	with each day broken 	into 	three 	shifts 	or watches
which are 	supervised by the watch 	commanders/sergeants. 	The
chief 	and the 	lieutenant 	typically work the 	day shift. 	During
the 	16 	work 	shifts 	per week when 	the 	chief 	and 	lieutenant 	are
generally off duty, 	a watch commander/sergeant 	is 	the 	ranking on-
duty 	officer.
The 	record 	contains 	numerous 	references 	to 	the
responsibility 	of 	watch 	commanders/sergeants 	to 	assign and 	direct
9
9

the work of 	subordinate 	officers. 	Chief Rudy Schultz 	testified
that 	it 	is 	a 	fundamental 	function of watch commanders/sergeants
"to make 	sure 	that 	those 	officers 	under 	their 	command are
performing their duties and responsibilities." 	(R.T. 	p. 	127.)
Lieutenant Warner Meyers 	testified 	that 	the 	assignment 	of
officers 	is 	typically the 	responsibility of 	the watch
commanders/sergeants. 	(R.T. 	p. 	120.) 	Watch Commander/Sergeant
Benjamin Jones 	testified 	that 	he 	assigns 	subordinate 	officers 	to
patrol sectors and units 	(R.T. 	p. 	17.); 	and that he decides how
and where 	to assign 	the 	officers 	based on 	the 	events 	which are
occurring 	in the patrol 	area at any particular time. 	(R.T.
p. 	86-87.) 	The 	California State 	Personnel 	Board specification
for 	Supervising Museum Security Officer 	includes 	among 	the
typical 	tasks 	of 	the SMSO, 	"assigns Guards 	and Security Officers
to stations as 	scheduled." 	(State Exh. 	No. 	5.)
The 	assignment 	and direction 	of 	the work of 	subordinate
officers 	is not a sporadic or nominal duty. 	Rather, 	it 	is an
essential, 	daily 	function and 	responsibility of 	the watch
commander/sergeant. 	(R.T. 	p. 	17-18.) 	Watch Commander/Sergeant
Jones 	lists 	"Deployment 	of Dept 	of 	Public Safety officers" 	(sic)
as one of his daily functions. 	(CAUSE Exh. 	No. 	1.) 	In
evaluating 	these 	daily 	responsibilities 	the 	Board agent 	notes
that 	"officers 	are 	assigned 	to patrol 	based 	on 	the previous
night's activities." 	(Proposed Decision, 	p. 	14.) 	Noting this
responsibility, 	the Board agent 	concludes 	that 	SMSOs 	exercise
little 	independent 	discretion 	in the performance 	of 	their duties.
10

This method 	of 	determining 	officer assignments 	leads 	me 	to 	the
opposite 	conclusion. 	The 	authority and 	responsibility 	to
evaluate 	changing 	circumstances, 	such as varying 	event 	schedules
and recent patterns 	of 	law enforcement 	activity, 	and 	to determine
police 	officer assignments 	in accordance 	with 	these
considerations, 	clearly demonstrates 	the exercise 	of 	independent
judgment by SMSOs.
Accordingly, 	I 	conclude 	that SMSOs 	serving as watch
commanders/sergeants meet 	at 	least 	one 	of 	the 	statutory 	criteria
of 	a supervisory employee, 	they assign other employees.2
Therefore, 	the 	determination of whether supervisory status 	will
be 	conferred on 	these 	employees 	requires 	the application of 	the
"substantial 	similarity" 	standard 	included 	in Dills 	Act 	section
3513(g).
Noting 	that 	watch 	commanders/sergeants 	may 	spend as 	much as
75 	percent 	of 	their time 	on patrol, 	similar to their subordinate
officers, 	the Board agent 	concludes 	that 	"performance 	of 	this
extensive 	amount 	of 	bargaining unit 	work 	indicates 	that 	the watch
commanders' 	supervisory obligations 	do not 	outweigh 	their
entitlement 	to 	the 	rights 	of 	a 	rank and 	file employee."
(Proposed Decision, 	p. 	14.)
Based on the 	record, 	this 	conclusion is 	simply incorrect.
While 	watch 	commanders/sergeants 	may 	spend a 	significant 	amount
of 	their time on patrol, 	as do their subordinates, 	the nature of
2Because 	I 	find that 	at 	least 	one 	of 	the 	statutory 	criteria
for supervisory employee 	is met, 	it 	is unnecessary to review all
of 	the 	statutory 	factors 	considered by 	the 	Board agent.
11

their patrol 	responsibilities 	is 	fundamentally different 	than
that 	of 	the 	officers 	they 	supervise. 	Chief 	Schultz 	testified as
to 	the 	responsibilities 	of 	watch 	commanders/sergeants 	while 	on
patrol:
. 	. 	. 	their responsibilities when they're on
patrol 	is 	to make certain, 	to make sure 	that
those 	officers 	under 	their 	command are
performing 	their 	duties 	and 	responsibilities
as the Department sees 	- - 	would have it
performed. 	And 	the ultimate 	responsibility
of 	that particular watch is 	theirs. 	So 	in
other words, 	they have to be 	in a position to
be able to, 	not only to monitor, 	but to also
physically and visually be 	in 	those 	areas
that 	they need 	to be when 	those 	things 	are
happening. 	[R.T. 	p. 	127.]
Chief 	Schultz 	further 	testified 	that 	under normal 	circumstances 	a
watch 	commander/sergeant 	should 	not 	be 	dispatched 	first 	to 	handle
any 	incident:
The way 	it's 	supposed 	to work or 	should be
functioning is 	that, 	the officer is always
the 	one 	that 	is 	dispatched 	first 	to any
particular 	incident. 	Unless 	there's 	a major
incident, 	then 	they would ask 	for more units
or all units.
A supervisor, 	sergeant, 	watch commander,
whatever you choose 	to 	call 	that person,
should not be 	in a position that 	they get
tied up 	and 	that 	they 	can't 	respond 	somewhere
else. 	[R.T. p. 	128.]
This 	testimony describes 	employees 	whose primary obligation 	is 	to
be 	responsible 	on behalf 	of 	the 	employer 	for everything which
happens 	during 	their watch. 	In order to 	fulfill 	this
responsibility 	in a police 	agency, 	they must 	spend 	significant
amounts 	of 	time 	on patrol, 	observing and backing up 	the work of
subordinate 	officers 	while 	remaining 	free 	to 	respond 	to 	incidents
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which may 	require 	supervisory decision making. 	Chief 	Schultz
testified as 	to 	the 	potential 	magnitude 	of 	this 	responsibility 	in
a 	situation 	involving 	the 	supervision 	of 	armed 	law enforcement
officers:
Basically what happens, 	if 	the supervisor is
responding to a call, 	it means 	that 	it's a
situation 	that 	could be 	either dangerous 	or
it 	could be 	something 	that 	involves 	health 	or
safety. 	It's 	of a magnitude 	that 	could
create problems 	for someone 	if not a group of
people 	and 	liability 	factors 	are 	also higher.
When a 	supervisor 	responds 	to 	situations 	like
that, 	often he or she 	is placed in a position
of having to make a decision, 	what 	I 	call 	a
tactical 	field 	or 	command 	decision.
We 	also have 	occasions 	where we 	are 	involved
with LAPD 	on our property as 	well 	as 	around
the property. 	And a lot 	of 	times when we
have 	certain situations, 	whether it 	involves
a man with a gun or whatever it may be, 	LAPD
normally says, 	we're on State property, 	what
can we do 	for you. 	What 	do you want us 	to
do. 	You have 	to be 	in a position as 	a
supervisor to be 	in that 	area 	to make 	those
decisions, 	not 	involved in something that you
shouldn't 	have 	that you 	can't 	get 	out 	of.
So, 	in other words, 	there is going to be a
situation where 	this person has 	to be 	in a
position to make a decision and 	it has 	to be
a 	supervisor. 	Because when we're dealing
with outside agencies, 	that's what 	they'll
ask for; 	where's your sergeant. 	[R.T.
p. 	129.]
The 	record also 	reveals 	that 	under normal 	circumstances
watch 	commanders/sergeants 	are 	the 	ranking 	on-duty Museum police
officers more 	than 75 percent 	of 	the 	time 	(16 	of 	21 	shifts 	each
week). 	In fact, 	Sergeant Jones testified that, 	not only is he
the 	ranking on-duty officer for most 	of his 	shift, 	after hours he
13

actually becomes 	the 	acting director of 	the 	entire Museum as 	the
highest 	level 	on-duty employee. 	(R.T. 	p. 	25-26.)
The 	responsibility 	in a police agency of 	the 	ranking, 	on-
duty 	officer 	to make 	independent 	judgments 	concerning 	the
assignment 	and direction of 	subordinate 	officers 	in 	circumstances
involving the potential 	use of police powers, 	is a 	compelling and
unique duty. 	Watch 	commanders/sergeants 	are given 	that
responsibility on behalf 	of 	their employer, 	an obligation which
far outweighs 	their entitlement 	to 	the 	rights 	of 	rank and 	file
employees. 	Therefore, 	the 	"substantial 	similarity" 	standard
included in Dills Act 	section 3513(g) 	has not been met 	here.
Based on the 	foregoing, 	I 	conclude that SMSOs 	serving as
watch 	commanders/sergeants 	meet 	the 	definition 	of 	"supervisory
employee" 	contained in Dills Act section 3513(g). 	Therefore, 	I
would deny 	in 	its 	entirety 	the 	CAUSE petition 	seeking 	to 	include
the 	classification 	Supervising Museum Security 	Officer 	in 	State
Bargaining Unit No. 	7.
14

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA 	(MUSEUM OF
SCIENCE AND 	INDUSTRY),
Employer,
and
CALIFORNIA UNION OF 	SAFETY
EMPLOYEES,
Exclusive Representative.
)
)
)
) 	Representation
Case No. 	S-UM-578-S
PROPOSED DECISION
( 5 / 5 / 9 5 )
)
)
)
)
)
)
)
Appearances: 	Roy Chastain, 	Labor Relations Counsel, 	State of
California, 	Department of 	Personnel Administration, 	for the State
of 	California 	(Museum of Science and Industry); 	James P. 	Whalen,
Legal 	Representative, 	for the California Union of 	Safety
Employees.
Before Robert Thompson, 	Hearing Officer.
PROCEDURAL 	HISTORY
The 	California Union of 	Safety Employees 	(CAUSE) 	commenced
this action on June 9, 	1994, 	by filing a petition for unit
modification of State Employee Bargaining Unit No. 	7 	(Unit 	7 ) ,
Protective 	Services 	and 	Public 	Safety.1 The petition 	seeks 	the
inclusion 	of 	the 	classification 	of 	Supervising Museum Security
Officer 	(VC 	85) 	(sergeant) 	at 	the State of 	California 	(Museum of
Science and Industry) 	(State or Museum) 	in the bargaining unit.
The parties previously stipulated, 	and PERB accepted, 	that 	this
classification was 	supervisory 	in Unit 	Determination 	for 	the
State of 	California 	(1980) 	PERB Decision No. 	ll0c-S 	(State of
1 The petition was 	filed under Public 	Employment 	Relations
Board 	(PERB or Board) 	Regulation 32781(a)(1). 	(PERB regulations
are 	codified at 	California 	Code 	of 	Regulations, 	t i t l e 	8, 	section
31001 	et 	seq.)
1
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
___________________ )
1

California). 	There are five sergeants, 	all 	full-time employees.
Four are 	commonly 	referred 	to as 	watch 	commanders 	and 	one 	has 	the
working 	title 	of 	lieutenant.
In its 	opposition to the petition filed on June 27, 	1994,
the 	State 	asserts 	that 	the 	sergeants 	properly belong 	outside 	the
bargaining unit 	since 	they perform supervisory duties. 	The
parties met on September 20, 	1994, 	but were unable to resolve
their differences 	and the matter was 	heard 	in a 	formal 	hearing 	o
January 18, 	1995. 	Amended versions of Exhibit 	"1" 	and "4" were
provided by the State on January 26, 	1995. 	With the 	filing of
post-hearing briefs, 	the matter was 	submitted 	for decision on
March 21, 	1995.
n
FINDINGS 	OF 	FACT
The Museum employs 	a police 	force which includes 	23
officers, 	five 	sergeants 	(four watch commanders 	and one
lieutenant) 	and one 	chief 	of police. 	The police department 	is
responsible 	for protecting 	the buildings 	and grounds 	located 	on
the 	140 	acres 	of 	Exposition Park in Los Angeles. 	The 	employees
of 	the police 	department 	work primarily 	in 	three 	eight-hour
shifts or watches 	(first watch 	- 	11 p.m. 	to 7 a.m., 	second
watch 	- 	7 a.m. 	to 3 p.m., 	and third watch 	- 	3 p.m. 	to 11 p.m.)
The 	chief 	and 	the 	lieutenant 	work predominantly during 	regular
business hours, 	i.e., 	8 a.m. 	to 5 p.m.
22

The 	department 	has 	a 	chain of 	command which requires 	each
officer 	to 	report 	to 	the watch 	commander of 	his 	or her watch.2
These watch commanders 	report 	to the 	lieutenant who, 	in turn,
reports 	to the chief 	of police. 	In addition, 	one officer acts as
an 	investigator and 	reports 	directly 	to 	the 	chief 	regarding
investigations, 	one 	officer acts 	as 	a logistics person and one
officer acts 	as 	a 	training 	officer. 	The 	latter two 	individuals
report 	directly 	to 	the 	lieutenant 	with 	respect 	to 	those
specialized 	duties.
Of 	the 	five 	sergeants which are 	the 	subject 	of 	this
petition, 	three are watch commanders, 	one is a relief watch
commander and one 	serves 	in 	the working 	title 	of 	acting
lieutenant.
Watch 	Commanders
A watch 	consists 	of 	a 	sergeant 	and two 	to 	five 	officers.
One 	of 	the officers 	acts 	as 	a dispatcher and the 	remaining
officers 	are 	on patrol. 	The watch commander who 	testified has
worked 	for three years, 	predominantly during 	the 	third watch,
although he 	has 	been a watch 	commander 	on both 	the 	first 	and
second watch. 	He begins 	a 	typical 	work day at 	3:00 	p.m. 	by
briefly 	discussing with 	either 	the 	lieutenant 	or 	chief 	issues
such as 	strategy, 	morale, 	deployment and scheduling. 	The watch
commander 	then 	conducts 	a 	short briefing with 	the 	officers, 	holds
2Certain 	officers 	are 	designated 	corporals 	and 	have
authority to act 	as 	the watch commander 	in his 	absence. 	However,
unlike 	the watch commander, 	a 	corporal 	cannot authorize 	an
officer 	to 	leave 	the park 	to 	resolve a problem.
33

a 	ten-minute 	training discussion and assigns 	patrols. 	For 	the
remainder of 	the 	first 	two hours 	of 	the 	shift 	the watch 	commander
performs 	administrative 	work while 	the 	officers 	patrol 	the
buildings 	on foot. 	For the next 	5 	hours and 45 minutes 	the watch
commander patrols 	along with the officers, 	each in his 	or her own
car.3 While 	on patrol 	the watch 	commander drives 	a vehicle which
is 	identical 	to 	those used by the 	officers 	except 	that 	it 	is 	a
different 	color and does 	not 	have 	full 	police markings. 	The
officers 	and 	the watch commander do 	"figure 	eight" 	patrolling
which periodically puts 	them in visual 	contact. 	In addition, 	the
officers 	and watch 	commander use 	radio 	contact 	to monitor 	each
other's 	location. 	For the 	final 	15 minutes 	of 	the 	shift 	the
watch 	commander works 	in the 	office, 	signing off 	and 	logging
reports, 	and checking the officers' 	return of their keys, 	credit
cards and vehicle slips. 	Finally, 	he debriefs 	for the watch
commander 	coming on 	to 	the 	next watch.
When an 	incident 	is 	reported during a watch, 	the dispatcher
sends 	the 	closest vehicle, 	which may be 	the watch 	commander's
vehicle. 	If an officer is dispatched to an incident, 	the watch
commander also responds 	to the call. 	Typically, 	the watch
commander does 	not 	interject 	himself 	into 	the 	situation unless
requested to do 	so. 	If 	the officer is handling an 	incident 	in an
inappropriate manner, 	the watch commander may 	counsel 	the
officer. 	If 	counseling occurs, 	a written description of 	the
3In addition, 	patrolling 	is 	done 	on bicycles by officers who
have volunteered 	for 	that 	duty.
44

incident 	is 	then provided by 	the 	watch 	commander 	to 	the
lieutenant. 	The watch commander 	is 	responsible 	for deciding
whether an 	officer 	should 	leave 	the park 	to perform his 	or her
duties 	("break the boundaries 	of 	the park"). 	All 	incidents 	are
reported by 	the 	officers 	in a written 	report 	which 	is 	proofread
by 	the watch commander for elements 	of 	the 	crime, 	spelling and
structure. 	The 	officer makes 	corrections 	as 	required by the
watch 	commander.
Watch 	commanders 	neither hire 	nor 	fire 	officers. 	Watch
commanders 	write 	up performance 	reports 	and may discuss 	these
with the 	lieutenant, 	especially 	if 	the 	recipient 	employee 	is
going 	to be denied a merit 	salary adjustment 	(MSA). 	The watch
commander signs 	the performance 	report. 	The 	final 	decision on
whether a MSA is 	granted resides 	with the 	chief. 	Questions 	of
time 	off 	or vacation are 	typically 	scheduled with 	the watch
commander who will 	inform or 	consult 	with 	the 	lieutenant 	when a
conflict 	arises. 	The watch commander 	is 	responsible 	for the
officer's 	sign-in 	sheet 	and 	can 	find an 	officer AWOL 	(absent
without 	leave) 	if he/she 	fails 	to call 	in when absent. 	The watch
commander has 	authority to 	request 	officers 	to work overtime,
unless 	the 	lieutenant 	has 	dictated 	that 	a 	zero 	overtime 	situation
exists.
The 	watch 	commanders 	monitor 	sick 	leave usage 	and 	request
employees 	fill 	out 	the proper 	form or provide 	the 	required
documentation 	for sick leave usage. 	An officer 	cannot be put 	on
an attendance program by a watch commander, 	however, 	the watch
UT	
5

commander who 	testified has 	effectively 	recommended 	such a
program. 	When an officer is 	requested, 	and 	fails 	to bring 	in a
doctor's 	note, 	the watch 	commander will 	not 	allow him to 	come
back to work. 	Rather, 	the officer is 	sent home 	to procure the
note. 	If a problem develops with an employee, 	the watch
commander typically alerts 	the 	lieutenant 	to the problem. 	A
written 	counseling memo prepared by 	the 	watch 	commander with 	the
approval 	of 	the 	lieutenant may 	follow.
On 	the 	20th day 	of 	each month 	the 	watch 	commander prepares
the monthly work schedule. 	At 	the beginning of 	each shift, 	the
watch 	commander assigns 	each 	officer 	to a 	car and a patrol
sector. 	In the watch commander's absence, 	the 	corporal assigns
officers 	to 	their duties. 	Officers 	are 	typically assigned duties
based 	on 	the previous 	night's 	activity. 	Officers will 	also have
input 	into 	this 	decision. 	An exception 	is 	the 	duty of 	escorting
the 	receipts 	from the 	IMAX Theater, 	which 	is assigned by 	the
dispatcher. 	An 	officer 	typically performs 	this 	duty although a
watch 	commander performed 	this 	duty approximately 	six 	times 	in an
eight 	week period.
Watch 	commanders 	attend 	the 	chief's 	quarterly 	supervisory
meeting 	during which 	the 	chief 	discusses 	developments 	in 	the
department 	as 	well 	as 	changes 	in the 	laws 	and any other matters
related to 	the 	employees 	of 	the department. 	These matters 	are
actively discussed by 	the watch 	commanders, 	lieutenant 	and 	chief
at 	this meeting. 	At 	least 	one watch commander has had 	80 	hours
6
6

of 	supervisory 	training 	through 	POST 	(Commission 	on 	Peace
Officers 	Standards and Training).
Shift 	assignments 	are 	determined 	on a yearly basis 	by a
seniority-based bidding 	system. 	The 	individual 	with 	the most
seniority 	is 	given the 	first 	opportunity 	to 	select 	the watch on
which he/she wishes 	to serve. 	Once his/her selection is made.,
the 	employee 	remains 	on that 	shift 	for the entire year. 	If 	an
officer requests 	a 	transfer 	in writing, 	the watch 	commander
determines whether 	there 	is 	anyone 	on 	the 	appropriate 	shift 	that
is 	willing 	to 	trade with 	the 	requesting 	officer. 	Watch
commanders 	have 	never 	forced an 	individual 	to 	transfer. 	Any
transfers 	required 	for 	training purposes 	are 	initiated by 	the
watch 	commander 	and proceed 	through 	the 	lieutenant 	making 	a
recommendation 	to 	the 	chief. 	The 	chief 	has 	the authority 	to
transfer 	the 	officer.
If 	an officer should be 	disciplined, 	typically the watch
commander will 	recommend 	the 	appropriate 	level 	of 	discipline 	to
the 	lieutenant 	who 	then discusses 	the matter with the 	chief. 	The
chief makes 	the 	final 	decision. 	If 	the discipline 	recommended is
an adverse action, 	the 	chief 	would typically investigate 	further
on his 	own if 	the 	information provided to him raises 	questions.
The 	chief maintains 	a working 	file 	for 	each 	employee 	in a 	locked
cabinet 	in his 	office. 	The 	lieutenant 	is 	the 	only other
individual 	having a key to 	this 	file 	cabinet. 	No disciplinary
document 	goes 	into 	the working 	files 	without 	the knowledge 	of 	the
7
7

chief. 	Watch 	commanders 	do not 	give 	an officer a verbal 	or
written warning without 	the 	knowledge 	of 	the 	lieutenant.
Watch 	commanders 	can 	resolve 	grievances 	during 	a verbal
discussion with 	the 	grievant 	only 	if 	the 	grievance 	does 	not
involve money, 	discrimination against 	the grievant, 	or a policy
change which would affect more 	than 	the 	individual 	grievant.
Once a grievance 	is 	reduced to writing, 	the grievance 	form is
presented 	to 	the 	chief who 	is 	the 	first 	level 	in 	the 	grievance
procedure.
New 	officers 	are 	trained by being 	assigned 	first 	to
dispatching, 	then riding with the watch commander 	in his 	car.
When the 	watch 	commander 	feels 	the 	officer 	is 	ready 	to patrol 	on
his 	own, 	he 	recommends 	that 	to the 	lieutenant who then makes 	the
decision. •
The 	Lieutenant
The 	lieutenant works primarily from 8 	a.m. 	to 5 p.m. 	and is
not 	required to be 	in uniform. 	He patrols 	in uniform, 	although
not 	on a 	daily basis 	and usually only when there 	is 	a 	shortage 	of
staff 	due 	to 	training or 	illness. 	In the absence 	of 	the 	chief,
he 	assumes 	that 	role.
If 	a watch 	commander 	recommends 	discipline 	for an 	officer,
the 	lieutenant 	conducts 	an 	independent 	investigation and makes 	a
recommendation to 	the 	chief. 	Vacation requests 	are presented 	to
the 	lieutenant 	only when the watch 	commander 	indicates 	there 	is 	a
disagreement 	or problem with 	the watch 	commander's 	decision. 	The
lieutenant 	takes 	such an 	issue 	to 	the 	chief 	only 	if 	there 	is 	a
8

major problem. 	The 	lieutenant 	signs 	off 	on the monthly 	schedule
of officers.
The 	lieutenant 	acts 	as 	the 	department 	liaison 	to 	sponsors 	of
special 	events. 	He ascertains 	what 	department 	resources 	are
needed for the event, 	informs 	the 	chief, 	and tells 	the watch
commanders 	to 	schedule officers 	for the 	event. 	The 	lieutenant
reviews 	any overtime 	slips which result 	from the 	event. 	He 	also
signs 	off 	on 	travel 	claims 	for 	training. 	He 	consults 	with the
chief 	to do the 	sergeants' 	performance 	reports. 	The lieutenant
is 	not 	involved 	in 	the grievance procedure.
When the bike patrol was 	instituted, 	officers 	were
transferred 	from one 	shift 	to another. 	Transfers 	were 	done by
seniority with 	the 	lieutenant 	and 	chief 	working 	it 	out.
LEGAL 	ISSUE
Should 	the 	classification 	of 	Supervising Museum Security
Officer 	remain 	excluded 	from Unit 	7 	as 	supervisory?
CONCLUSIONS 	OF 	LAW
The 	criteria 	required 	to 	establish 	the 	supervisory 	status 	of
an employee 	is 	set 	out 	in the Ralph C. 	Dills Act 	(Dills Act)4 at
section 3513(g) 	(formerly Govt. 	Code 	§ 3522.1, 	repealed 1990)
which reads:
(g) 	"Supervisory employee" means any
individual, 	regardless of 	the job description
or title, 	having authority, 	in the interest
of the employer, 	to hire, 	transfer, 	suspend,
lay off, 	recall, promote, discharge, assign,
4The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to 	the Government 	Code.
99

reward, 	or discipline other employees, 	or
responsibility to direct 	them, 	or to adjust
their grievances, 	or effectively to 	recommend
this action, 	if, 	in connection with the
foregoing, 	the exercise of 	this authority is
not 	of 	a merely routine 	or 	clerical 	nature,
but 	requires 	the use 	of 	independent 	judgment.
Employees 	whose 	duties 	are 	substantially
similar to 	those 	of 	their 	subordinates 	shall
not 	be 	considered 	to be 	supervisory
employees.
Application 	of 	this 	statutory provision 	requires 	a 	two-step
process. 	First, 	the duties 	of 	the alleged supervisory employee
must be 	tested against 	the 	statutory criteria. 	Second, 	if 	the
employee performs 	supervisory duties, 	the duties must be 	tested
against 	the 	substantial 	similarity 	requirement.
The 	burden of 	proving 	an 	exclusionary 	claim 	is 	on 	the party
asserting 	it. 	"Absent 	that burden being met, 	the 	employees
involved are 	to be 	included 	in 	the unit." 	(State 	of 	California
at p. 	1.)5
In analyzing 	the 	statutory criteria, 	the 	Board 	in 	the 	State
of 	California 	reaffirmed previous 	holdings 	that 	the various
indicia 	of 	supervisory status 	are 	to be 	evaluated 	in 	the
disjunctive. 	"Where 	it 	is 	demonstrated that an employee meets
one 	of 	the 	specified 	criteria 	for exclusion and does 	none 	of 	the
rank-and-file work, 	he/she 	is 	to be 	excluded from the unit."
(Id. 	at p. 	6.) 	However, 	sporadic and atypical 	exercise of
supervisory duties 	is 	insufficient 	to qualify an employee as 	a
5This 	case 	interprets Dills Act 	section 3522.1 	which was
repealed 	in 	1990 	and replaced by section 3513(g). 	The 	case 	is
still 	applicable because 	the 	two 	sections 	are 	identical.
10

supervisor. 	(Id. 	at p. 	6; 	see also, 	Lawrence Livermore National
Laboratory 	(1983) 	PERB Decision No. 	241C-H.)
Nominal 	exercise 	of 	the 	statutory 	criteria 	is 	not 	enough 	to
qualify 	for 	supervisory 	status. 	The 	employee must 	demonstrate
independent 	judgment 	in the 	exercise of 	these 	functions. 	(State
of 	California at p. 	8.) 	Independent 	judgment 	is marked by 	"the
opportunity 	to make 	a 	clear 	choice 	between 	two 	or more
significant 	alternative 	courses 	of 	action and 	the 	power 	to make
that 	choice without broad review and approval." 	(Id. 	at p. 	9.)
An 	employee 	exercises 	independent 	judgment 	by 	demonstrating
significant 	autonomy and 	control 	over 	the 	decision making 	and
recommending processes.
The 	authority 	to 	assign work does 	not 	make 	an 	employee 	a
supervisor unless 	the 	purported 	supervisor has 	significant
control 	over the decision making process. 	This 	standard 	is 	not
met 	where 	the work assigned 	is 	"so 	routine 	and well 	structured as
to 	render 	the 	act 	of 	assigning 	that 	work 	little more 	than an
exercise 	of ministerial 	options." 	(Ibid.) 	The assignment 	of
work also 	fails 	to meet 	the 	supervisory 	criterion where 	there 	is
substantial 	review or prior approval 	of 	the 	supervisory act 	or
where 	the 	assignment 	is merely an application of 	policy. 	(Ibid.)
Routine 	transfers within 	the normal 	patterns 	of 	work
distribution or 	those made 	only upon 	the 	review and approval 	of
others 	do not meet 	the 	standard 	for exclusion. 	(Ibid.) 	The
statutory 	criteria 	are 	likewise 	not met 	where 	the purported
supervisor's power to suspend, 	discharge, 	reward or discipline 	is
11

limited to informal, 	oral 	counseling. 	(State of 	California.)
Nor are 	the 	criteria 	established where 	the 	employee's
responsibility 	is 	only 	to gather 	information and 	refer 	it 	to
others 	for action. 	(Id. 	at p. 	13.)
Evidence 	that 	an employee had a 	role 	in the preparation 	of
evaluations 	does 	not 	establish supervisory 	status where 	it 	is 	not
marked by 	independent 	judgment. 	Thus, 	supervisory status 	does
not 	exist 	where preparation of 	the 	evaluation 	"is 	subject 	to
substantial 	review and approval 	or where 	it 	follows 	a 	routine
course prescribed by past practice 	or existing policy." 	(Id. 	at
p. 	14.)
Similarly, 	no 	supervisory status 	is 	found where 	the
scheduling 	of vacations 	was 	"essentially ministerial, 	following a
seniority system or other defined policy." 	(Ibid.) 	Nor 	is 	there
supervisory 	status 	where 	the 	authority to approve 	or disapprove
sick 	leave 	is 	based 	on articulated departmental 	or 	state
standards. 	(Ibid.) 	Supervisory status 	likewise 	is not 	found
where 	an employee's 	role 	in the approval 	of merit 	increases 	is
the 	routine 	administration 	of 	a well 	articulated 	system.
If 	a purported 	supervisor meets 	at 	least 	one 	of 	the
statutory 	criteria, 	the 	claim of 	supervisory status must 	then be
tested against 	the 	substantial 	similarity 	requirement. 	Under
section 3513(g), 	"[e]mployees whose duties are substantially
similar 	to 	those 	of 	their 	subordinates 	shall 	not be 	considered 	to
be 	supervisory employees." 	The 	Board has 	not 	applied a 	standard
of percentages 	in interpreting this 	section. 	Rather, 	the Board
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has 	concluded 	that 	substantial 	similarity occurs 	at 	"the 	point 	at
which the 	employees' 	supervisory obligation 	to 	the 	employer
outweighs 	their 	entitlement 	to 	the 	rights 	afforded 	rank-and-file
employees." 	(State 	of California at pp. 	7-8.) 	Where 	supervisory
obligations 	exist 	to 	the 	degree 	that 	they outweigh 	rights 	to
organize, 	an employee no longer performs 	duties 	substantially
similar 	to his/her 	subordinates.
Finally, 	in evaluation of any claim of 	supervisory status,
it 	is 	important 	to keep 	in mind the purpose behind the 	statutory
exclusion of 	supervisors. 	"[E]xclusions 	are designed 	to prevent
a division of 	supervisors' 	loyalties 	that might 	occur because 	of
the negotiating relationship of 	the parties, 	concerned as 	it 	is
with wages, 	hours, 	and working conditions." 	(Id. 	at pp. 	9-10.)
The potential 	for 	the 	conflict 	of 	interest 	lies 	in the 	authority
to 	control personnel 	decisions, 	as 	distinguished from control
over work processes, 	that 	lies at 	the 	core of 	supervisory status.
Watch 	Commanders
In State of California, 	p. 	90, 	B-98, 	the Board approved a
stipulation of 	the parties 	that 	the 	classification of 	Supervising
Museum Security 	Officer was 	supervisory. 	Continued 	supervisory
designation of 	the 	four watch 	commanders 	who 	function 	in 	this
classification 	appears 	unwarranted.
There 	is 	little 	evidence 	that watch 	commanders 	are
supervisors under Dills Act 	section 3513(g). 	They do not hire,
fire, 	discipline, 	involuntarily transfer officers, 	or resolve
written grievances 	under 	the 	contract 	between 	CAUSE 	and 	the
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State. 	At most, 	they prepare evaluations of performance, 	assign
work, 	resolve 	relatively minor issues 	(vacation scheduling, 	sick
leave verification), 	and back up officers when situations
develop. 	Much of 	this work 	is 	performed according 	to guidelines
that 	leave 	little 	to 	the 	independent 	discretion of 	the watch
commanders. 	For example, 	officers are assigned to patrol based
on the previous night's activities. 	And, 	whenever there 	is a
dispute over minor issues 	(e.g., 	vacation scheduling), 	the
problem is 	referred 	to 	the 	lieutenant 	for 	resolution.
The 	closest 	these positions 	come 	to being 	supervisory 	is 	in
the preparation of performance 	reports. 	These documents 	are
based 	on 	the 	watch 	commander's 	observation 	of 	the 	officer and are
signed by 	the watch 	commander. 	In 	cases 	where 	an officer 	is
going 	to be 	denied a MSA, 	the watch 	commander discusses 	the
report with the 	lieutenant. 	The 	chief 	testified that 	he had 	the
final 	say as 	to who 	received a MSA.
These 	facts 	are not 	demonstrative 	of 	a 	clear exercise 	of
supervisory 	functions by 	the watch 	commanders. 	Even 	if 	they
were, 	the work of 	the watch commander 	is 	"substantially similar"
to 	that 	of 	their officers. 	During the third watch, 	the watch
commander spends 	almost 	75 	percent 	of 	his 	time 	in uniform,
patrolling and responding to 	calls, 	the 	same as 	his 	officers.
Although there 	is 	not 	a strict percentage 	test, 	performance 	of
this 	extensive amount 	of 	bargaining unit work 	indicates 	that 	the
watch 	commanders' 	supervisory obligations 	do not 	outweigh 	their
entitlement 	to the 	rights 	of 	a 	rank and 	file employee. 	(State 	of
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California at p. 	1.) 	Accordingly, 	I 	find that 	the 	four
Supervising Museum Security 	Officers 	who 	are performing 	as 	watch
commanders 	are not 	supervisors.
Lieutenant
The 	lieutenant 	does 	exercise 	independent 	judgement 	on behalf
of 	the employer. 	He directs 	the department 	in the absence 	of 	the
chief. 	Only 	the 	chief and 	the 	lieutenant 	have 	keys 	to 	the 	locked
cabinet 	containing the officers' 	"working" 	personnel 	files. 	Both
the 	logistics 	officer and 	the 	training 	officer 	report 	directly 	to
him regarding 	these 	assignments. 	The 	lieutenant 	signs 	off 	on 	the
monthly 	schedule. 	He 	resolves problems 	which arise between 	the
watch 	commanders 	and 	the 	officers 	regarding work 	schedules,
performance reports, 	and attendance.
The 	lieutenant 	represents 	the police 	force 	in meetings 	with
other 	departments 	of 	the park 	regarding 	the 	scheduling 	of 	special
events. 	He directs 	the watch commanders 	to 	schedule a sufficient
number of 	officers 	for the 	event 	and approves 	the 	resulting
overtime.
Some 	of 	the 	lieutenant's work 	is 	based on application of
established guidelines. 	The bike patrol 	was begun with
volunteers whose 	regular assignments 	then became vacant. 	He
oversaw the 	transfer of 	officers 	to fill 	these vacancies, 	but 	it
was 	accomplished by using 	seniority 	to 	determine 	which 	officers
were 	affected.
There 	is 	little 	evidence 	that 	the 	lieutenant performs 	the
work of 	either 	the watch 	commanders 	or the 	officers. 	He 	rarely
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wears 	a uniform and patrols 	only 	in unusual 	circumstances. 	He
does 	not 	attend 	the 	watch meetings. 	Based 	on 	this 	evidence, 	I
find 	the 	one 	Supervising 	Museum 	Security 	Officer 	who 	is
performing 	as 	the 	lieutenant 	to 	be 	supervisory.
PROPOSED 	ORDER
For 	these 	reasons 	and based upon 	the 	entire 	record 	in 	this
case, 	it 	is 	ORDERED 	that 	the 	petition of 	the 	California Union 	of
Safety 	Employees 	to 	include 	the 	classification 	of 	Supervising
Museum Security 	Officer 	at 	the 	State 	of 	California 	(Museum of
Science 	and 	Industry) 	in 	State 	Employee 	Bargaining Unit 	No. 	7:
1) 	Is 	granted 	for 	the positions 	of 	watch 	commanders.
2) 	Is 	denied 	for 	the position 	of 	lieutenant.
Pursuant 	to 	California 	Code 	of 	Regulations, 	title 	8,
section 	323 05, 	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
20 	days 	of 	service 	of 	this 	Decision. 	In accordance 	with 	PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation 	or 	exhibit 	number 	the 	portions 	of 	the 	record, 	if 	any,
relied upon 	for 	such exceptions. 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32300.) 	A document 	is 	considered 	"filed" 	when
actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.) 	on 	the
last 	day 	set 	for 	filing 	". 	. 	. o r when 	sent 	by 	telegraph 	or
certified 	or 	Express 	United 	States 	mail, 	postmarked 	not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 	shall apply.) 	Any
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statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently with 	its 	filing upon each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany 	each 	copy 	served 	on a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Robert 	Thompson
Hearing 	Officer
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