Sierra Sands Unified School District (PERB 0002E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SIERRA SANDS UNIFIED SCHOOL DISTRICT)
Employer
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION SIERRA SANDS CHAPTER
#188, Employee Organization
) 	Case No. 	LA-R-710
EERB Decision No. 	2
October 14, 1976
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Appearances: 	James S. Brian, Attorney (O'Melveny and Myers), for
Sierra Sands Unified School District; William D. Dobson, Attorney
(California School Employees Association), for California School
Employees Association.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
PROCEDURAL HISTORY
On April 1, 1976, California School Employees Association,
Chapter 188, filed with the Sierra Sands Unified School District
a request for recognition as the exclusive representative of a
unit of specified classified employees. 	It subsequently filed
an amended request for recognition as the exclusive
representative of a unit of "all classified employees excluding
noon duty supervisors and those positions which can lawfully be
declared management, confidential, and supervisory." 	The
district notified the Educational Employment Relations Board
that it doubted the appropriateness of the unit described by
CSEA, Chapter 188, filed a petition with the Board alleging that
it had filed a request for recognition with the district and that
the request had been denied, and requesting the Board to
investigate and to determine the appropriateness of the unit. 	On
August 11, 1976, a formal hearing was held before a Board agent
for the purpose of determining the appropriate bargaining unit.
This is the first case on "confidential" employees to come before
the Board.
ISSUE
The issue in this case is whether or not certain classified
employees of the Sierra Sands Unified School District are
"confidential employees" within the meaning the Act, Government
Code Section 3540.1(c). 	The employees and positions designated
as "confidential" by the district are the Senior Secretary to the

Assistant Superintendent for Educational Services, Senior Account
Clerk, Payroll Clerk, Bookkeeper and Account Clerk - Payroll.
With the exceptionof the five disputed employees, the
district and CSEA, Chapter 188, stipulated that the appropriate
unit is "all classified employees, excluding all management
employees as designated by the district, all supervisory
employees, all noon duty aides, all short term and emergency
employees and all confidential employees." 	Stipulated as
"confidential" are the following employees:
Superintendent Secretary
Secretarial Aide to the Superintendent
Senior Secretary to the Assistant Superintendent for Business
Senior Secretary to the Assistant Superintendent for
Persjonnel and Administrative Services
Personnel Technician
Research and Classified Personnel Technician
Secretary to the Assistant Business Manager
School Secretary for Burroughs High School
The Board adopts the stipulations of the parties without inquiry,
but is not required to make similar findings in contested cases.
DISCUSSION
Government Code Section 3540.1(c) states that "Confidential
employee' means any employee who, in the regular course of his
duties, has access to, or possesses information relating to, his
employer's employer-employee relations." 	It is noted further in
subsection (j) of the same section that "confidential employees"
are not to be considered public school employees for the purposes
of employer-employee relations within the meaning of the Act.
Presumably, the Legislature denied certain rights to
"confidential" employees for the sole purpose of guaranteeing
orderly and equitable progress in the development of employer-
employee relations.
The assumption is that the employer should be allowed a small
nucleus of individuals who would assist the employer in the
development of the employer's position for the purposes of
employer-employee relations. 	IAt is further assumed that this
nucleus of individuals would be required to keep confidential
those matters that if made public prematurely might jeopardize
the employer's ability to negotiate with employees from an equal
posture.
It is further assumed that the denial of representation
rights to the employees designated as "confidential" is
overshadowed by the greater benefit to be gained by the employer,
the employee organizations and the public when a fair balanced
approached to employer-employee relations is guaranteed.

The underlying assumption then, is that the employer, in
order to fulfill its statutory role in its employer-employee
relations, must be assured of the undivided loyalty of a nucleus
of staff designated as "confidential employees".
Senior Secretary
The first employee in issue is the Senior Secretary to the
Assistant Superintendent for Educational Services. 	We conclude
that she is a "confidential employee".
The specific duties of the Assistant Superintendent for
Educational Services are the development of curriculum and
instructional programs and educational pupil personnel services;
however, he also serves in three other capacities for the
district.
He is a member of the Superintendency Team; he is a member of
the Managemenet Team; and he is the chief representative of the
Board of Education and the Superintendent on the Consulting Team.
As a result of his participation in any one of these three
groups, he would be a crucial element in the employer's
negotiation strategy. 	Inasmuch as he serves not just in one
group, but in all three, there can be little doubt that his role
is vital in his employer's employer-employee relations process.
As a member of the Superintendency Team, composed of the
Superintendent and the other two Assistant Superintendents of the
district, he has been involved in developing recommendations of
the team to the Board of Education on negotiation matters for
both classified and certificated employees.
As a member of the Management Team, composed of all other
district administrators and the Board of Education, he also
participates in the development of positions to be taken in
negotiation matters.
And finally, as chief representative of the Board of
Education and the Superintendent on the Consulting Team, he
consults with the representatives of the teachers' employee
organization on the matters set forth in Section 3543.2 of the
Act.
The evidence clearly demonstrates that the Senior Secretary
to the Assistant Superintendent for Educational Services handles
most of the correspondence, dictation an appointments for the
Assistant Superintendent. 	Additionally, she maintains all of his
files and does research on projects the Assistant Superintendent
is developing. 	She frequently and as a routine matter has access
to and handles files which co tain materials relating to
classified and certificated employees. 	She also testified that
she was aware of the materials regarding classified employees
that originated in the Superintendent's office, and that such

material and minutes of the Superintendency Team meetings were
filed by her in the course of here duties. 	Since her supervisor
also participates in the Management Team and heads up the
Consulting Team, it can be concluded from her testimony that she
develops and handles materials relevant to meetings of these
groups as well. 	There appears to be no doubt that the Senior
Secretary to the Assistant Superintendent of Educational Services
regularly has access to or possesses information relating to her
employer's employer-employee relations.
Senior Account Clerk, Bookkeeper, Payrooll Technician, Account
Clerk - Payroll
The Senior Account Clerk, Bookkeeper, Payroll Technician and
Account Clerk - Payroll are all supervised by the Assistant
Business Manager who has been designated by the governing board
as "Management". 	In the 1975-76 school year, the Assistant
Business Manager served on the Meet-and-Confer Team for
classified employees. 	In the current year 1976-77, he is on the
Negotiations Team for both classified and certificated employees.
In both capacities he has sometimes been called upon to analyze
the cost of district and employee organization bargaining
proposals, including district proposals that were not yet placed
on the bargaining table.
The Assistant Business Manager indicated that at various
times he has asked one of the four individuals in dispute to
assist him analyzing the cost of proposals; however, it is
important to note that he can recall requesting the assistance of
only the Bookkeeper and the Account Clerk - Payroll in particular
instances. 	In response to a question by district counsel as to
whether or not he made a request of each and every one of them or
of one in particular, he responded:
It's hard to recall an looking back at last year's work,
I can 't really, I don't think I could really say
wheather 	I've asked all four of them at different
occasions to help
In another response to a question from the hearing officer on the
same general matter, he answered:
As I said, last year's meet-and-confer process - to be
honest, I can't recall who I have. 	I've, I had people
ask them for specific information or for their assistance.
And Further:
So you try to grab the people that are oh, know how to
use the calculator that can know how to read salary
schedules and you grab whoever is available.
The Assistant Business Manager did not provide any evidence
that convincingly showed tht any of the four employees in

question, during the regular course of their duties, have access
to or possess information relating to their employer's employer-
employee relations. 	Rather, it appears that the Assistant
Business Manager chose one or another interchangeably in the
preparation of his data for the employer. 	The mere fact that
these four employees are interchangeably called upon to do cost
calculatins duty because they are equally competent in the use of
a calculator hardly suggests that they perform cost evaluations
in the regular course of their duties.
Specifically, with reference to the Senior Account Clerk, the
Assistant Business Manager did no t recall a single instance of
requesting her to analyze to cost of proposals. 	He stated he
would have asked her but that she was on vacation at the time he
needed the work done. 	No evidence was provided that she has ever
done a cost evaluation. 	Further, the duty statementt for the
Senior Account Clerk indicates that her duties primarily involve
recording transactions that have already taken place. 	There was
no evidence presented that any of the work performed by this
individual was of a "confidential" nature under the meaning of
the statute.
With reference to the Bookkeeper, she stated that she had
done cost evaluations relating to certificated proposals. 	The
testimony of the Assistant Business Manager, however,
demonstrates the casual nature of any such assignments:
I grabbed the Bookkeeper as I said, the Senior Account
Clerk was gone and wasn't able to ask her, and the
Accounting Clerk, for the Account Clerk for Payroll to
help.
This hardly suggests that the Bookkeeper performed cost proposals
for the negotiations in the regular course of her duties. 	And
though there is some reference to the fact that she was told that
some of her work was of a confidential nature, counsel for the
district failed to demonstrate that "confidential" in this
circumstance meant "confidential" under the terms of the Act.
The situation of the Payroll Technician appears to be equally
as weak as that of the Senior Account Clerk and Bookkeeper. 	The
Assistant Business Manager ould not recall that he had requested
her to perform cost evaluations of proposals in the 1975-76
school year. 	He further stated that this year he did not ask her
assistance because she was too busy. 	Nothing in the record
suggests that in her role of Payroll Technician she regularly
performed duties that would be considered "confidential" under
the definition of the statute.
And finally, the Account Clerk - Payroll, who did not appear
as a witness, was not shown to have performed, in the regular
course of her duties, functions that related to her employer's
employer-employee relations. 	In fact, the opposite is true. 	The
Assistant Business Manager testified that he had asked her to do

an evaluation three weeks previous to the hearing only because
her immediate supervisor, the Senior Account Clerk, was on
vacation. 	This hardly attests to the regular nature of her
duties or the confidentiality of her work.
The major duties of the four employees involved record
keeping. 	The Senior Account Clerk schedules, organizes and
performs the financial record keeping operations of the district.
The Bookkeeper works with the daily accounting processes of the
district's business department. 	The Payroll Technicians performs
clerical activities involved in the processing of payrolls. 	The
Account Clerk assists in preparing payroll registers for all
classified and certificated personnel and maintains all payroll
and employment records. 	The record did not demonstrate that
these regualr duties of the four employees related to the
employer's employer-employee relations in that the information
the employees handle does not expose the employer's positions in
negotiations or other matters of employer-employee relations.
Finally, the fact that the four employees may calculate the
cost of proposals hardly suggests that they perform cost
evaluations giving them information relating to their employer's
employer-employee relations. 	The evidence did notshow that any
of the four employees did more than simple mechanical cost
calculations. 	The mechanical act of calculating costs does not
necessarily provide clerical support personnelwith confidential
knowledge pertaining to the employer's position on bargaining
matters or other information relating to the employer's employer-
employee relations.
CONCLUSION
We have considered the cases mentioned by the parties in
their briefs. 	Although there is case history on similar issues
under other statutes, there appears to be little reason for the
Borad to rely on them inasmuch as the statutes to which thet
refer are not similar enough to our statute to have bearing on
this case. 	The Board finds that the Senior Secretary to the
Assistant Superintendent for Educational Services is a
"confidential employee" under the terms of the Act. 	It further
finds that the Senior Account Clerk, the Payroll Clerk, the
Bookkeeper and the Account Clerk - Payroll, are not "confidential
employees" under the terms of the Act, and shall be included in
the unit of classified employees petitioned for by CSEA, Chapter
188.
ORDER
The Educationala Employment Relations Board directs that:
1. 	The following unit appropriate for the purposes of meeting
and negotiating, providing an employee organization becomes the
exclusive representative of the unit:
Including: 	All classified employees

Excluding: 	All management employees as designated by the
district
All supervisory employees
All noon duty aides
All short term and emergency employees
All confidential employees
2. 	The following employee is "confidential" within the meaning
of Section 3540.1(c) of the Act:
Senior Secretary to the Assistant Superintendent for
Educational Services
3. 	The following employees are not "confidential" within the
meaning of Section 3540.1(c) of the Act:
Senior Account Clerk
Bookkeeper
Payroll Technician
Account Clerk - Payroll
4. 	If the district does not extend voluntary recognition to
CSEA, Chapter 188, within twenty-one (21) calendar days following
the date of this decision, the regional director shall conduct an
election to determine whether or not CSEA, Chapter 188, shall be
the exclusive representative of the appropriate unit.
by: 	Raymond J. Gonzales, Member 	Reginald Allyene, Chairman
Date: 	October 14, 1976
Jerilou H. Cossack, Member, dissenting in part.
I concur with the decision of my colleagues that the Senior
Secretary for Educational Services is a confidential employee
within the meaning of the Act. 	However, I disagree with the
implicit assumption of the majority that "employer-employee
relations" is limited to those matters within the area of
collective bargaining or labor relations. 	While I do not agree
with the majority's assumption, I do agree that the record in
this case does not provide a baisi 	for a broader finding. 	The
mere access to bare piecemeal statistical information, none of
which was established to relate to confidential employer-employee
relations matters, is insufficient to establish confidential
status. 	Assuming, however, that the definition is restricted as
in the majority opinion, I conclude that there is ample
justification to hold one of the remaining employees as
confidential. 	The record establishes that in prior years

management has relied on at least one of the four disputed
employees to actually perform the costing out of various
negotiating proposals. 	The fact that no one of these employees
regularly performed this function but rather than any one of them
might be called upon, in no way diminishes management's need to
have someone to perform this task. 	To preclude management from
this type of assistance because it has failed to confer the
function on one particular individual at a time when it had no
reason to do so, in my view, runs contrary to the obvious intent
of the legislature in carving out a category of confidential
persons. 	Given management's articulated preference for using the
Senior Account Clerk for this function, I would find that person
to be a confidential employee.
Jerilou H.Cossack, Member