State of California (Department of Forestry and Fire Protection) (PERB 1216S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF FORESTRY AND FIRE PROTECTION),
Employer,
and
CALIFORNIA DEPARTMENT OF 	FORESTRY
EMPLOYEES ASSOCIATION, 	IAFF
LOCAL #2881,
Petitioner,
and
INTERNATIONAL 	UNION OF 	OPERATING
ENGINEERS,
Exclusive Representative.
Case No. 	SA-UM-595-S
(SA-SR-8 	& SA-SR-12)
PERB Decision No. 	1216-S
August 27, 	1997
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Appearances: 	State of California 	(Department 	of 	Personnel
Administration) 	by Gail T. 	Onodera, 	Labor Relations Counsel, 	for
State 	of 	California 	(Department of 	Forestry and Fire 	Protection);
Neyhart, 	Anderson, 	Reilly & Freitas by William J. 	Flynn,
Attorney, 	for California Department 	of 	Forestry Employees
Association, 	IAFF Local #2881.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on appeal 	by the State
of 	California 	(Department 	of 	Forestry and 	Fire 	Protection)
(Forestry or Department) 	to a Board agent's proposed decision.
The 	Board agent 	approved a unit modification petition, 	filed by
the California Department 	of 	Forestry Employees Association, 	IAFF
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Local 	#2881 	(CDFEA) 	under the Ralph C. 	Dills Act 	(Dills Act)
section 3521(b).1
1The Dills Act 	is 	codified at Government 	Code 	section 3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3521(b) 	provides, 	in
pertinent part:
(b) 	In determining an appropriate unit, 	the
board shall 	take 	into consideration all 	of
the 	following 	criteria:
(1) 	The 	internal 	and occupational 	community
of interest among the employees, 	including,
but not 	limited to, 	the extent 	to which they
perform 	functionally 	related 	services 	or work
toward established common goals; 	the history
of 	employee 	representation 	in state
government and 	in similar employment; 	the
extent 	to which the 	employees 	have 	common
skills, 	working conditions, 	job duties, 	or
similar educational 	or 	training 	requirements;
and 	the 	extent 	to which the 	employees 	have
common 	supervision.
(2) 	The effect 	that 	the projected unit will
have 	on the meet 	and confer relationships,
emphasizing 	the 	availability 	and 	authority 	of
employer 	representatives 	to 	deal 	effectively
with 	employee 	organizations 	representing 	the
unit, 	and taking into account 	such factors 	as
work location, 	the numerical 	size of 	the
unit, 	the relationship of 	the unit to
organizational 	patterns 	of 	the 	state
government, 	and the effect 	on the existing
classification 	structure 	or 	existing
classification 	schematic 	of 	dividing a 	single
class 	or 	single 	classification 	schematic
among 	two or more units.
(3) 	The effect 	of 	the proposed unit 	on
efficient 	operations 	of 	the 	employer and 	the
compatibility of 	the unit 	with 	the
responsibility of 	state 	government 	and 	its
employees 	to serve the public.
(4) 	The number of employees and
classifications 	in a proposed unit 	and 	its
effect 	on the operations 	of 	the employer, 	on
the 	objectives 	of 	providing 	the 	employees 	the
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right 	to effective 	representation, 	and on the
meet 	and 	confer 	relationship.
(5) 	The 	impact 	on the meet and confer
relationship 	created by 	fragmentation 	of
employees 	or any proliferation of 	units 	among
the 	employees 	of 	the 	employer.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including the proposed decision, 	Forestry's appeal 	and CDFEA's
response. 	Based on the 	following discussion, 	the Board grants
the portion of 	CDFEA's unit modification petition that 	requests
the placement 	of 	the 	Forestry Logistics 	Officer 	I 	(FLO 	I)
classification 	in State Bargaining Unit 	8. 	The Board 	finds 	the
Forestry Logistics Officer II 	(FLO 	II) 	classification to be
supervisory under Dills Act 	section 3513(g)2 and dismisses 	the
portion of 	CDFEA's petition 	that 	requests 	the placement 	of 	the
FLO 	II 	in State Bargaining Unit 	8.
2Dills Act 	section 3513 	states, 	in pertinent part:
(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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PROCEDURAL 	HISTORY
On April 	13, 	1995, 	CDFEA filed a unit modification petition
requesting 	that 	the 	FLO 	I and 	II 	classifications be placed 	in
State Bargaining Unit 	8. 	The 	FLO 	I 	is 	currently assigned to
State Bargaining Unit 	12, 	and the FLO II 	is a supervisory class
aligned with Unit 	12. 	The 	exclusive 	representative of Unit 	12,
the 	International 	Union of 	Operating Engineers, 	Craft Maintenance
Division, 	did not 	object 	to the 	transfer. 	Forestry opposed the
transfer. 	A 	PERB-conducted 	settlement 	conference 	on
May 31, 	1995, 	failed to resolve the issue. 	A PERB hearing
officer conducted a formal hearing on September 26, 	27, 	28 and
November 15, 	1995. 	On August 	6, 	1996, 	the case was transferred
to another Board agent 	for preparation of 	the proposed decision.
The 	proposed 	decision granting 	CDFEA's 	unit 	modification petition
was issued on October 21, 	1996.
FACTS
The 	Department 	contains 	two 	regional 	Emergency Command
Centers 	that 	are 	geographically divided 	into 22 	ranger units.
Each 	ranger unit 	includes 	at 	least 	one 	fire 	station and a 	service
center run by a 	FLO 	that 	provides 	the 	Department's 	with emergency
response 	equipment 	and supplies.
From 1977 	to 	1990, 	Forestry used the Unit 	12 	classification
series 	of Materials 	and Store 	Supervisor 	(MSS) 	and Business
Service Officer 	(BSO) 	to staff the service centers. 	In 1990, 	the
State 	Personnel 	Board 	(SPB) 	established the 	FLO 	series 	to 	replace
the 	service 	center MSS 	and BSO positions 	and recognize 	the
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uniqueness 	of 	logistics 	operations 	within 	Forestry.3 The 	SPB
found 	that 	the MSS 	and BSO 	classifications 	failed to adequately
encompass 	the 	emergency procurement 	and 	support 	functions 	these
positions performed. 	In addition, 	incumbents needed to
understand 	fire 	suppression 	terms 	and methodologies 	in 	order 	to
provide adequate 	support 	to 	fire 	suppression activities. 	The
Department 	of 	Personnel Administration 	(DPA) 	placed 	the 	FLO 	I
class 	in State Bargaining Unit 	12 	and designated 	the 	FLO 	II 	as 	a
supervisory 	class 	aligned with Unit 	12.
Unit 	12, 	the Crafts and Maintenance Unit, 	consists of 465
classifications. 	Forestry utilizes 	11 Unit 	12 	classifications:
Aircraft Mechanic, 	Carpenter I and II, 	Electrician I and II,
Groundskeeper, 	MSS, 	Warehouse Worker, 	Heavy Equipment Mechanic
Laborer and FLO 	I. 	Only the 	FLO'S 	and Heavy Equipment Mechanics
typically work at 	the 	ranger units. 	In the 	original 	state unit
determination, 	Unit Determination 	for the State of 	California
(1979) 	PERB Decision No. 	110-S, 	PERB found:
The employees 	included in this unit, 	for the
most part, 	share 	common concerns 	over job
safety 	including uniforms 	to be 	worn and
safety equipment, 	and because of 	the 	often
mobile 	nature 	of 	their work 	they 	share 	common
concerns 	over working 	conditions 	including
hours, 	the location they are to report 	to
work, 	and lunch facilities. 	[Id. 	at p. 	44.]
Unit 	8, 	the Firefighters Unit, 	includes only Forestry-
specific 	classifications. 	In the original 	state unit
3There 	is 	currently one MSS performing 	FLO duties 	at 	the
Sonoma Ranger Unit. 	The position will 	be 	reclassified to a 	FLO 	I
when vacated.
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determination, 	PERB 	found the 	Firefighters Unit appropriate
because 	firefighters 	receive 	special 	training at 	the 	Fire
Academy, 	are 	exposed to unique 	safety and health hazards 	in 	the
performance 	of 	their duties under emergency conditions, 	have
unique work schedules and housing arrangements, 	and 	fighting
fires 	requires special equipment. 	(Ibid.) 	The unit 	includes 	32
classifications, 	including: 	State Forest Ranger, 	Air Operations
Officer, 	Fire Prevention Officer, 	Forester, 	Fire Captain,
Firefighter, 	Fire Lookout, 	and Forestry Pilot. 	Many Unit 	8
classifications 	serve 	in strictly support 	roles, 	not direct 	fire
suppression. 	Most Unit 	8 	employees participate 	in the 	"Peace
Officer-Firefighter" 	retirement 	plan and work 	a 	72-hour 	rotating
schedule. 	However, 	many Unit 	8 	support 	classifications work 40
hour weeks.
The 	FLO 	I administers 	the 	service 	center located near a
ranger unit 	headquarters. 	The 	FLO 	I 	organizes 	each ranger unit's
logistical 	support 	operations 	under 	the 	supervision of 	a 	State
Forest Ranger II. 	The FLO 	I 	estimates demands 	for unit 	equipment
and materials, 	maintains property records, 	prepares purchase
orders and estimates, 	purchases supplies, 	and receives and
distributes goods 	to the 	fire stations within the unit. 	The
FLO 	I 	wears 	a 	Forestry uniform, 	works 	a 40-hour week and 	is
accessible by pager during 	emergencies. 	During a busy 	fire
season, 	the 	FLO 	I may work significant amounts 	of 	overtime.
Depending on specific 	training, 	the 	FLO I performs 	a number
of 	functions 	in the 	Incident Command System 	(ICS), 	Forestry's
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emergency response 	system. 	The FLO 	I 	receives 	ICS 	training at
the 	Fire Academy, 	and receives 	emergency orders 	directly 	from the
Emergency Command Officer. 	During a 	short duration 	fire, 	the
FLO 	I may deliver equipment 	and 	food 	to 	the 	incident base 	camp 	or
fire line. 	During extended fires, 	the 	FLO I usually provides
supplies 	from the 	service 	center. 	The 	FLO 	I may also be assigned
to 	extended out 	of 	county 	fires.
DPA specifications 	allow 	for 	two 	FLO 	II positions 	statewide,
one 	in the Riverside 	ranger unit 	and one 	in 	the 	San Bernardino
ranger unit. 	Due to departmental 	concerns over cutbacks, 	only
the Riverside 	ranger unit 	FLO 	II position 	is 	filled on a 	limited
term basis. 	The FLO II performs 	duties 	similar to those of 	the
FLO 	I, 	and spends 	one 	to 	two hours per day supervising one
Business Services Assistant 	(BSA), 	one Office Assistant, 	one
county-employed 	Supervising 	Storekeeper 	and 	two 	county-employed
Stock Clerks.4 The 	FLO 	II's 	supervisory duties 	are 	the 	same 	for
the 	state 	and 	county 	employees.
The 	FLO 	II 	completes performance 	evaluations 	for the BSA,
Office Assistant, 	Supervising Storekeeper and Stock Clerks 	and
signs 	them as 	the 	immediate 	supervisor. 	The 	ranger unit's
administrative 	officer and deputy 	chief 	of 	administration 	review
and sign the evaluations. 	Walter Andrews 	(Andrews), 	the
Riverside 	ranger unit's 	administrative 	officer, 	testified that
neither he 	or 	the 	deputy 	chief 	of 	administration 	changed a
performance 	evaluation completed by 	the 	current 	or previous
4The 	BSA position was vacant at 	the 	time of 	the hearing.
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FLO II.
Although all 	discipline 	requires 	the 	ranger unit 	chief's
approval, 	the 	FLO 	II 	could recommend transfer of 	a problem
employee 	and would be 	responsible 	for 	filling 	out 	the 	required
papers. 	The previous 	FLO 	II was 	involved in rejecting a 	county
employee 	on probation 	and 	completed 	a probationary 	employee
performance 	report 	for the Office Assistant. 	If 	a 	subordinate
filed a grievance, 	the FLO II would deal with it as 	the 	immediate
supervisor.
The 	FLO 	II 	sits 	on three-person 	interview panels 	as 	the
service 	center 	supervisor and acts 	as 	the 	lead panel 	member who
sets up the panel 	and develops 	questions. 	Each panel member's
score 	is 	given equal weight. 	The panel 	forwards 	the 	candidate
with the highest average score 	to the 	ranger unit 	chief. 	If 	the
scores are close, 	or there 	is a tie between two candidates, 	the
FLO 	II makes 	the panel 	recommendation. 	Only the 	ranger unit
chief possesses 	the authority to hire 	or 	fire 	employees. 	The
Riverside 	ranger unit 	chief 	has 	never 	rejected a panel's
recommendation.
The 	FLO 	II 	determines 	service 	center priorities 	and directs
subordinates' 	daily responsibilities. 	The Riverside FLO II has
made 	two 	requests 	to add positions 	to 	the 	service 	center based on
workload. 	The 	FLO 	II has 	the authority to 	change 	regular
assignments. 	For example, 	in emergency situations, 	the Emergency
Command Center contacts 	the 	FLO 	II, 	who organizes 	the 	service
center response, 	and contacts 	subordinates. 	Andrews 	testified
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that he never reviews 	the 	FLO 	II's work assignments. 	The 	FLO 	II
also 	organizes 	the 	service 	center annual 	inventory.
The 	FLO 	II 	trains the BSA, 	Office Assistant and Supervising
Storekeeper. 	The FLO II 	regularly inspects 	subordinates' 	work
and 	corrects 	improperly performed work. 	The 	service 	center
employees 	direct 	their work-related questions 	to 	the 	FLO 	II. 	The
FLO 	II 	holds 	monthly meetings 	with 	subordinates 	about 	problem
areas such as audits, 	inventory, 	back orders, 	etc. 	The Riverside
FLO 	II 	attends 	the Department's monthly management 	level 	staff
meeting and 	relays 	information back 	to 	subordinates.
The 	FLO 	II 	approves 	subordinates' 	sick leave and vacation
requests, 	and denies vacation requests based on departmental
needs. 	The FLO II has restructured subordinates' 	jobs 	to
accommodate an employee's 	temporary 	limited duty. 	The 	FLO 	II
authorizes 	overtime and compensatory time. 	The 	FLO 	II 	does 	not
check with anyone before 	acting 	on 	these 	requests.
CDFEA'S 	POSITION
CDFEA asserts 	that 	the 	FLO'S 	share 	an extensive 	community of
interest 	with Unit 	8 	employees. 	Both FLO'S 	and the 	Firefighters
spend the majority of 	their day at 	the 	ranger unit. 	The 	ICS
functions 	are part 	of 	the 	FLO job, 	even if 	they are voluntary.
Like the 	FLO classes, 	many Unit 	8 	classifications are not
involved 	in direct 	fire 	suppression. 	Like all Unit 	8
classifications, 	FLO'S are Forestry specific positions. 	The
FLO's 	provide 	direct 	support 	to 	Forestry's 	firefighting mission,
work 	long 	and 	irregular hours 	and wear 	Forestry uniforms. 	CDFEA
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argues 	that 	Forestry has 	failed to 	show that 	FLO's 	share a
greater 	community of 	interest 	with any other unit.
With regard to the 	FLO 	II, 	CDFEA argues 	that 	supervision of
county employees 	is not 	supervision under the Dills Act. 	The
current 	FLO II 	only supervises 	one 	state employee, 	the Office
Assistant, 	because 	the Riverside BSA position is vacant. 	Since
the FLO II duties 	only include 20 percent 	supervision, 	and only
one of 	five subordinates 	is a state employee, 	only 20 percent of
the supervisory time, 	or 4 percent of 	the FLO II's time, 	is 	spent
supervising a state 	employee. 	CDFEA argues 	that 	these 	duties 	are
insufficient 	to meet 	the Dills Act 	definition of 	a 	supervisory
position. 	Therefore, 	the 	FLO 	II 	classification should also be
placed 	in Unit 	8.
FORESTRY'S 	POSITION
Forestry 	contends 	that 	CDFEA has 	failed to 	rebut 	the
presumptive validity of 	the 	original 	state unit 	determination by
showing 	that 	its 	proposed unit modification 	is more 	appropriate.
(State 	of 	California 	(Department 	of 	Personnel Administration)
(1992) 	PERB Decision No. 	933-S.) 	The duties of the FLO I and II
were 	derived 	from the MSS 	and BSO 	classifications 	that 	were
originally placed or aligned with Unit 	12. 	The party requesting
unit modification bears 	the burden of 	demonstrating 	the proposed
unit placement 	is more appropriate 	than the 	original 	PERB unit
placement. 	(Ibid.)
Forestry also argues 	that 	the 	FLO 	I 	and II positions 	have
little 	community of 	interest with Unit 	8. 	FLO's perform a
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support 	function, 	but unlike all 	other Unit 	8 positions, 	they do
not perform any 	fire prevention or protection duties. 	Except 	for
the 	optional 	ICS 	training available 	to all 	Forestry employees,
FLO's and the Unit 	8 positions possess no common skills. 	The
promotional path for FLO's 	contains no Unit 	8 positions. 	FLO's
spend only 	10 	to 	20 	percent 	of 	their 	time 	on emergency logistical
support 	and 	the majority of 	their time 	is 	spent 	in 	the 	service
center, 	even during emergencies. 	FLO's are never in the danger
area and are not 	issued 	fire protection gear. 	The 	ranger units
include other non-unit 8 	employees. 	Unlike FLO's, 	who work
forty-hour weeks and are paid overtime, 	many of 	the Unit 	8
employees 	work extended weeks 	and 	95 	percent 	of 	them qualify 	for
the 	Fair Labor Standards Act 	(FLSA) 	fire 	suppression employee
overtime 	exemption.
Forestry asserts 	that 	the 	record shows 	that 	the 	FLO 	II
performs 	several 	supervisory 	functions 	enumerated 	in Dills Act
section 3513(g). 	The FLO II 	effectively recommends 	hiring and
promotion, 	exercises 	independent 	judgment 	in preparing
evaluations 	and approving 	sick and vacation 	leave, 	rejects
probationary employees, 	and disciplines employees. 	FLO II duties
are not 	substantially similar to 	subordinate duties. 	The 	FLO 	II
requires 	an 	increased 	level 	of 	knowledge and responsibility,
coordinates multiple government activities, 	and hires 	and
supervises 	several 	subordinate 	staff.
The 	Department 	also 	objects 	to 	the proposed decision being
written by a Board agent 	who did not 	conduct 	the hearing 	in 	the
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case. 	Additionally, 	the Department asserts 	that PERB has 	failed
to 	ensure 	against 	internal 	conflicts 	of 	interest 	by establishing
guidelines 	to 	screen 	the 	attorneys 	who advise 	the 	Board 	from
PERB's advocacy, 	investigative and adjudicative 	functions.
DISCUSSION
Forestry maintains 	that 	CDFEA has 	failed 	to 	rebut 	the
presumption of validity of 	the 	original 	unit 	determination. 	To
rebut 	the presumptive validity of 	the 	original 	PERB 	state unit
determination, 	the petitioning party must 	show that 	the proposed
modification is more appropriate. 	(State of California
(Department of 	Personnel Administration) 	(1990) 	PERB Decision
No. 	794-S.) 	However, 	while PERB considered the MSS and BSO
classifications 	in the original 	state unit determination, 	it 	did
not 	consider the 	FLO 	classifications. 	To recognize 	the unique
functions 	the MSS 	and BSO 	classifications 	performed 	in 	Forestry,
the 	SPB 	created the new FLO 	classifications 	in 	1990. 	DPA placed
or aligned the new FLO classifications 	in Unit 	12. 	Under these
circumstances, 	it 	is 	clear that 	PERB has not determined the
appropriate placement 	of 	the 	FLO series, 	and the presumptive
validity of 	PERB's 	original 	placement 	of 	the MSS 	and BSO
classifications 	in Unit 	12 	does 	not 	carry over to DPA's placement
and alignment 	of 	the new FLO 	I and II 	classifications 	in Unit 	12.
Dills Act 	section 3521(b) 	lists 	the 	criteria 	for determining
the appropriate unit 	for state employees, 	including: 	community of
interest among the employees; 	common skills, 	working conditions,
duties, 	supervision, 	or educational and training requirements;
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effect 	on 	the meet 	and 	confer 	relationship 	and 	efficiency 	of
operation; 	the 	size 	of 	the appropriate unit and its 	effect 	on
representational 	rights. 	(State of 	California 	(Department 	of
Personnel Administration). 	supra, 	PERB Decision No. 	933-S.)
The 	FLO 	I 	clearly shares 	a community of 	interest with Unit 	8
employees. 	The 	FLO 	I 	is 	a Forestry-specific 	classification and
provides 	crucial 	logistical 	support 	to 	Forestry's 	firefighting
mission. 	This 	community of 	interest was 	acknowledged when 	the
SPB established 	the 	FLO 	series 	to 	recognize 	the uniqueness 	of
logistics 	operations within Forestry, 	and the 	requirement 	that
incumbents 	understand 	fire 	suppression methodologies 	to
adequately 	support 	Forestry activities.
The 	record also shows 	that 	the 	FLO I 	shares 	common skills,
supervision and working conditions with Unit 	8 	employees. 	Unit 	8
employees 	supervise the FLO I. 	Like Unit 	8 	employees, 	the FLO I
wears 	Forestry uniforms, 	is 	stationed at 	the ranger units, 	works
irregular hours during the 	fire 	season, 	is 	on call 	in emergency
situations 	and receives 	ICS 	training at 	the 	Fire Academy.
Although 	the 	FLO 	I 	does 	not 	perform direct 	fire prevention or
protection duties, 	other existing Unit 	8 	classifications also
serve 	in strictly support 	roles.
The 	record 	is 	devoid of 	any evidence 	indicating 	that 	the
inclusion of 	the 	FLO 	I 	in Unit 	8 would negatively 	impact 	the
Unit 	8 meet 	and 	confer relationship 	or 	employee 	representational
rights. 	Forestry contends 	that 	the 	small 	number of 	FLO 	I
positions 	(20-26) 	means 	that 	their concerns will be 	lost among
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the needs 	of 	other Unit 	8 	classes. 	Forestry also asserts 	that
since 	the 	FLO 	I 	falls 	outside 	the 	FLSA fire 	suppression employee
overtime 	exemption, 	its 	inclusion in Unit 	8 would complicate
negotiations. 	These arguments are unpersuasive, 	however, 	because
Unit 	8 	currently contains 	other classes 	that have 	fewer positions
than the 	FLO 	I 	class, 	and/or fail 	to qualify for the 	FLSA
overtime 	exemption.
The 	evidence 	indicates 	that 	the 	FLO 	I promotional path
contains no Unit 	8 positions, 	that 	FLO I 	ICS 	training and duties
are optional, 	and that 	the 	FLO 	I 	spends 	the majority of work time
at the service center, 	not 	in fire danger areas. 	However, 	these
factors 	do not 	outweigh 	the 	substantial 	community of 	interest 	and
commonality of purpose 	that 	the 	FLO 	I 	shares with Unit 	8
positions.
In making 	its 	initial unit determination decisions, 	PERB's
task 	is 	to determine an appropriate unit. 	(Antioch Unified
School District 	(1977) 	EERB Decision No. 	37.)5 CDFEA has
presented evidence 	demonstrating 	that 	Unit 	8 	is 	an appropriate
unit 	for the 	FLO I 	classification. 	In response, 	Forestry asserts
the presumptive validity of 	the 	original 	unit 	determination 	for
the MSS and BSO positions. 	As noted above, 	that presumption of
validity does 	not 	apply to 	the 	FLO 	I 	classification. 	Forestry
has 	failed to provide 	evidence 	establishing 	that Unit 	12 	is 	an
appropriate unit 	for the 	FLO 	I 	classification. 	In consideration
5Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment 	Relations 	Board or EERB.
14

of 	the entire record, 	the Board concludes 	that Unit 	8 	is an
appropriate 	unit 	and grants 	CDFEA's 	unit modification petition
requesting 	that 	the 	FLO 	I 	classification be placed 	in State
Bargaining Unit 	8.
Turning to the 	FLO 	II 	classification, 	CDFEA maintains 	that
supervision 	of 	county employees 	is 	not 	supervision under 	the
Dills Act. 	When an employee 	supervises non-bargaining unit, 	or
non-civil 	service, 	employees 	on a regular recurring basis 	in the
employer's 	interest, 	PERB has 	considered those duties 	in
determining 	whether 	the 	employee meets 	the 	supervisory 	criteria
of 	the Dills Act. 	(State of California. 	Department of 	Personnel
Administration 	(1989) 	PERB Decision No. 	727-S.) 	The FLO 	II
regularly 	supervises 	county employees 	on behalf 	of 	the
Department, 	and those 	employees work established hours 	at 	state
facilities 	and are 	responsible 	to a 	full-time 	state 	employee.
Therefore, 	it 	is appropriate 	in this 	case to consider the
FLO 	II's 	supervision of 	county employees 	to determine 	whether 	the
FLO 	II meets 	the 	supervisory criteria.
Forestry contends 	that 	the 	record shows 	that 	the 	FLO 	II
performs 	several 	of 	the 	supervisory 	functions 	enumerated 	in Dills
Act 	section 3513(g). 	The performance of any one of 	the 	functions
enumerated 	in 	section 	3513(g) 	may 	render an employee 	supervisory.
(Unit Determination for the State of California, 	supra. 	PERB
Decision No. 	ll00-S.) 	However, 	the performance of 	supervisory
duties must 	involve 	independent 	judgment. 	Independent 	judgment
is 	the 	opportunity to make a 	clear 	choice between two or more
15

significant 	alternative 	courses 	of 	action without 	broad 	review or
approval. 	Routine 	or clerical 	decision making precludes 	a
finding of 	supervisory status. 	(Ibid.)
-
The use 	of 	independent 	judgment 	in the assignment 	and
direction of work 	is 	an indication of 	supervisory status.
Allocating 	regular work assignments, 	altering 	regular
assignments, 	assigning specific additional 	tasks, 	and reviewing
and 	correcting work demonstrate 	supervisory 	status. 	(Sweetwater
Union High School District 	(1976) 	EERB Decision No. 	4; 	Campbell
Union High School District 	(1978) 	PERB Decision No. 	66.) 	The
authority 	to assign work does 	not 	indicate 	supervisory 	status 	if
the work 	is 	so 	routine 	or 	structured 	that 	assigning 	the work 	is
ministerial. 	(Unit Determination for State of California, 	supra,
PERB Decision No. 	ll0c-S.)
6
The 	FLO 	II uses 	discretion to direct 	subordinates' 	daily
responsibilities based on service 	center priorities. 	The 	FLO 	II
trains 	the BSA, 	Office Assistant 	and Supervising Storekeeper and
regularly inspects and corrects 	subordinates' 	work. 	The 	service
center employees 	bring any work-related questions 	to 	the 	FLO 	II.
The 	FLO 	II alters 	subordinates' 	work assignments 	to respond to
emergency situations 	or meet departmental 	needs. 	For instance,
the 	FLO 	II 	organizes 	the annual 	service 	center 	inventory and
6The 	Educational 	Employment Relations Act 	(EERA) 	and the
Dills 	Act 	contain almost 	identical 	criteria 	for determining
supervisory status. 	Therefore, 	the Board considers 	EERA cases
when determining whether an employee meets 	the Dills Act
criteria. 	(Unit Determination for the State of 	California.
supra. 	PERB Decision No. 	ll0c-S.)
16

service 	center 	emergency 	response 	and has 	restructured
assignments 	to 	accommodate 	an 	employee's 	temporary 	limited duty.
No one 	reviews 	the work assignments made by the 	FLO 	II. 	The use
of 	independent 	judgment 	by 	the 	FLO 	II 	in assigning and 	reviewing
work 	establishes 	supervisory 	status.
The 	authority 	to authorize 	overtime 	and grant 	time 	off
without prior approval 	is 	an 	indication of 	supervisory status.
(Lincoln Unified School District 	(1997) 	PERB Decision No. 	1194.)
However, 	an employee does 	not 	exercise 	independent 	judgment when
the 	scheduling 	of vacations 	and approval 	of 	sick leave 	follows 	a
defined policy. 	(Unit Determination 	for the State 	of 	California.
supra. 	PERB Decision No. 	ll0c-S.) 	The FLO II determines whether
to grant 	overtime and vacation based on departmental 	needs, 	not
by 	following a defined policy. 	No one 	reviews 	the 	overtime,
vacation or sick leave decisions made by the 	FLO 	II. 	The use 	of
independent 	judgment by the 	FLO 	II 	in granting 	overtime 	and 	time
off 	also 	establishes 	supervisory 	status.
The 	authority 	to 	effectively 	recommend 	the 	promotion,
discharge, 	or hiring of 	other employees 	indicates 	supervisory
status. 	(Campbell Union High School District, 	supra. 	PERB
Decision No. 	66.) 	The final hiring, 	discipline and salary
decision 	is 	often 	reserved 	to persons 	far removed 	from an
employee's 	immediate supervisor. 	Therefore, 	the ability to
indirectly, 	but 	effectively, 	bring about 	changes 	in employment
status 	is accorded great weight. 	(Ibid.)
The 	record shows 	that 	the 	FLO 	II 	has 	the ability to bring
17

about 	changes 	in subordinates' 	employment 	status. 	Conducting
evaluations, 	or effectively recommending 	the outcome 	of 	the
evaluation process, 	indicates 	supervisory status because
evaluations profoundly effect personnel 	decisions. 	(Hemet
Unified School District 	(1990) 	PERB Decision No. 	820.)
Evaluations 	subject 	to substantial 	review or approval, 	or
following 	a 	routine 	course 	prescribed by past 	practice 	or
existing policy, 	are 	insufficient 	to establish supervisory
status. 	(Unit Determination for the State of California, 	supra,
PERB Decision No. 	ll0c-S.) 	The 	FLO 	II 	completes 	subordinates'
performance 	evaluations 	and 	signs 	them as 	the 	immediate
supervisor. 	Although the evaluations are 	subject 	to review, 	the
reviewers 	never 	changed a performance 	evaluation 	completed by 	the
FLO II. 	Therefore, 	the record establishes 	that 	the FLO II
effectively 	recommends 	the 	outcome 	of 	the 	evaluation process 	and
indicates 	supervisory status.
The 	record 	shows 	that 	the 	FLO 	II's 	involvement 	in the hiring
process 	is 	insufficient 	to establish supervisory status. 	Equally
weighted participation on 	interview panels 	does 	not 	demonstrate
that 	the 	FLO 	II 	effectively recommends 	the outcome. 	(Unit
Determination for the State of California, 	supra. 	PERB Decision
No. 	ll0c-S; 	Sanger Unified School District 	(1989) 	PERB Decision
No. 	752.) 	Similarly, 	although the record indicates 	that the
FLO 	II participated 	in the probationary process, 	insufficient
evidence was 	presented to 	establish 	that 	the 	FLO 	II 	effectively
recommended 	the 	outcome.
18

Since 	the 	record establishes 	that 	the 	FLO 	II 	exercises
independent 	judgment 	in performing 	several 	of 	section 	3513(g)'s
indicia of 	supervisory status, 	the 	remaining issue 	is whether
FLO 	II duties 	are 	"substantially similar" 	to those of
subordinates. 	When the 	employee's 	duties 	reach the point 	that
the 	involvement 	in 	supervisory 	functions 	outweighs 	the 	right 	to
participate 	in rank and 	file unit 	activity, 	the 	employee's
supervisory 	obligations 	preclude 	a 	finding 	that 	the 	employee's
duties are 	substantially similar to 	those 	of 	subordinates.
(State of California. 	Department 	of 	Personnel Administration.
supra. 	PERB Decision No. 	727-S.) 	The FLO II exercises unfettered
supervisory duties 	over many of 	the 	elements 	of 	subordinates'
employment by 	setting 	service 	center priorities, 	participating 	in
ranger unit management meetings, 	organizing 	the 	service 	center's
emergency response, 	preparing performance evaluations, 	approving
vacation, 	overtime and compensatory time, 	and scheduling and
assigning 	subordinate work based on departmental 	needs. 	While
these 	functions may account 	for only 20 	percent 	of 	the work time
of 	the FLO 	II, 	they 	involve a level 	of 	responsibility which is
markedly greater than 	that 	of 	subordinates. 	In consideration of
these 	responsibilities, 	the Board concludes 	that 	the duties 	of
the 	FLO 	II 	are not 	substantially similar to 	those 	of
subordinates, 	and the 	FLO 	II meets 	the definition of 	supervisory
employee 	established in Dills Act 	section 3513(g).
Based on the 	foregoing, 	the Board dismisses 	CDFEA's unit
modification petition 	requesting 	the placement 	of 	the 	FLO 	II
19

classification 	in State Bargaining Unit 	8. 	The 	FLO 	II will
remain a 	supervisory 	classification, 	and be 	aligned with State
Bargaining Unit 	8.
Forestry asserts 	that 	PERB 	erred 	in 	substituting a Board
agent 	who did not 	conduct 	the 	hearing 	to prepare 	the proposed
decision. 	PERB Regulation 32168(b) 	allows 	substitution of Board
agents 	at 	the General 	Counsel's 	discretion 	in 	representation
matters.7 PERB's 	substitution of 	the Board agent was 	in
accordance with this 	section, 	and Forestry's 	objection is without
merit.
Finally, 	Forestry asserts 	that 	PERB 	failed to 	ensure against
internal 	conflicts 	of 	interest by establishing guidelines 	to
screen 	the 	attorneys 	who 	advise 	the Board 	from PERB's 	advocacy,
investigative 	and adjudicative 	functions. 	PERB Regulation 	32155
expressly addresses 	the 	need 	to avoid even 	the 	appearance 	of
impartiality, 	and describes 	the means 	a party may use 	to 	request
disqualification 	of 	any Board agent 	or Board member based 	on an
7PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	Regulation 32168
provides, 	in pertinent part:
(b) 	A Board agent may be 	substituted 	for
another Board agent 	at 	any 	time 	during 	the
proceeding at 	the discretion of 	the Chief
Administrative 	Law Judge 	in unfair practice
cases 	or the General 	Counsel 	in
representation matters. 	Prior 	to ordering a
substitution the parties 	shall 	be 	notified
and provided an 	opportunity 	to 	state
objections 	to 	the proposed 	substitution.
Substitutions 	of 	Board agents 	shall 	be
appealable 	only 	in accordance 	with Sections
32220 or 32300.
20

alleged 	conflict 	of 	interest 	or lack of neutrality. 	The
Department 	failed 	to utilize 	the procedures 	described 	in 	PERB
Regulation 	32155, 	and provided no 	evidence 	indicating how PERB's
organizational 	structure biases 	the Board or any of 	its 	agents.
Therefore, 	the Department's assertion is rejected.8
ORDER
The unit modification petition 	requesting placement 	of 	the
Forestry 	Logistics 	Officer 	I 	classification 	in State Bargaining
Unit 	8 	is GRANTED.
The 	unit modification petition requesting placement 	of 	the
Forestry Logistics 	Officer 	II 	classification 	in State 	Bargaining
Unit 	8 	is DISMISSED.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
8The 	fundamental 	component 	of 	PERB's 	role 	in administering
the Dills Act 	and the 	other 	collective bargaining 	statutes 	that
PERB oversees, 	is 	its neutrality. 	Evidence of bias or any lack
of 	neutrality by 	PERB 	or any of 	its 	agents 	should be brought 	to
the attention of 	the Board 	immediately. 	Conversely,
unsubstantiated and 	self-serving 	suggestions 	of 	bias 	by a party
displeased with the outcome of a case, 	do a disservice 	to PERB
and bring 	discredit 	to 	the party offering 	the unfounded
suggestions.
21