San Diego Community College District (PERB 0028E)

STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
SAN DIEGO COMMUNITY COLLEGE DISTRICT,
Employer
and
CLASSIFIED EMPLOYEES ASSOCIATION OF
SAN DIEGO COMMUNITY COLLEGE DISTRICT,
Enployee Organization
and
SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 102, AFL-CIO,
Employee Organization
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Case Nos. 	LA-R-16
LA-R-17
LA-R-173
EERB Decision No. 28
September 16, 	1977
Appearances : 	TimothyK. Garfield, 	Deputy County Counsel, 	for San Diego Community
College District; 	WilliamJ. 	Bauer for Classified Employees Association of
San Diego Community College District; 	Michael J. 	Posner for Service Employees
International Union, Local 102, AFL-CIO.
Before Alleyne, 	Chairman; Gonzales and Cossack, Members.
OPINION AND ORDER
This case is before the Educational Employment Relations Board on exceptions
to the attached proposed hearing officer's decision. 	The exceptions by Service
Employees International Union, 	Local 102, 	are addressed to all aspects of the
hearing officer's proposed order. 	The Board has considered the record and the
proposed decision in light of the exceptions.
We are in substantial agreement with the hearing officer's proposed decision
and his use of precedents of this Board. 	Accordingly, 	the hearing officer's pro-
posed order is adopted as the order of the Educational Employment Relations Board .
By : 	ReginaldAlleyne, 	Chairman 	Raymond Gonzales, 	Member
' J; ~ilouH . Cossack, 	Member
Dated : 	September 16, 	1977

STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
SAN DIEGO COMMUNITY COLLEGE DISTRICT
Employer,
and
CLASSIFIED EMPLOYEES ASSOCIATION OF
SAN DIEGO COMMUNITY COLLEGE DISTRICT,
Employee Organization,
and
SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 102, AFL-CIO,
Employee Organization.
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) 	Case No. LA-R-16
LA-R-17
LA-R-173
EERB Decision No. 28
ORDER
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The Educational Employment Relations Board directs that:
1. 	The job classifications of administrative aides, systems analyst programmers,
accountants, junior accountants, and buyers are not eligible for self-
determination as a unit of "professional" employees.
2. 	The office-technical unit shall be amended to include administrative aides,
systems analyst programmers, accountants, junior accountants, and buyers.
3. 	The following employees are not either supervisory or confidential within
the meaning of Government Code Section 3540.l(c) and Section 3540.l(m) :
Administrative aides, systems analyst programmers, accountants, junior
accountants, and buyers.
4. 	Challenged voter Mary Davis was an employee on leave of absence on the
eligibility cutoff date and is an eligible voter,
5. 	The following employees casting challenged ballots are employees within the
unit eligible to vote and their ballots shall be counted:
Lewis Acord, Charles Alexander, Elizabeth Thunnell, Jacqueline Wilson,
Seodello Martinez, Leroy Culver, Ruby Liddle, William Mayne, Ruthy Ofina,
Marylou Sundstrom, Roland Villarba, Helen Robinson, Jake Hovland, Henry Little,
Robert Irwin, and Mary Davis.

The regional director is requested to open the following challenged
ballots 	stipulated to be counted by the parties :
Mary L. Richardson, 	Dorothy Smith, 	Enrique A. 	Rivera, 	Britta Lien,
Roberta Metcalfe, 	Gabie Jack.
Educational Employment Relations Board
by
CHARLES L. 	COLE
Executive Director
9/16/77
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EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
SAN DIEGO COMMUNITY COLLEGE DISTRICT,
Employer,
and
CLASSIFIED EMPLOYEES ASSOCIATION OF
SAN DIEGO COMMUNITY COLLEGE DISTRICT,
Employee Organization,
and
SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 102, AFL-CIO,
Employee Organization.
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) Representation Case No. LA-R-16
LA-R-17
LA-R-173
PROPOSED DECISION ON CHALLENGED
BALLOTS AND UNIT CLARIFICATION
ISSUED: 	April 	19, 1977
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Appearances: 	Timothy K. Garfield, Deputy County Counsel, for San Diego Community
College District.
William J. Bauer for Classified Employees Association of San Diego Community
College District.
Michael J. Posner for Service Employees International Union, Local 102, AFL-CIO.
Before Terry Filliman, Hearing Officer.
OPINION
PROCEDURAL HISTORY
Following the filing of requests for recognition and interventions,
the parties stipulated to four appropriate classified employee negotiating units:
(1) an operations unit, (2) an office-technical unit, (3) a security unit, and
(4) a food services unit. 	A representation election was held on December 1, 1976,
in each of the four units and a majority of validly cast votes was obtained in
1.

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all units except the office-technical unit. 	Prior to the election, 	the parties
had agreed that all voters holding certain job classifications within the office-
technical-unit would be challenged.1/ It was further stipulated that if the chal-
lenges were sufficient in number to determine the outcome of the election, a
hearing would be held to determine the eligibility status of the voters and to
further resolve the status of all persons in the job classifications for which
voters were challenged. 	At the conclusion of the election the tally of ballots
showed the following results:
San Diego Community College District - office-technical unit.
Approximate number of eligible voters 	- 	383
Void ballots 	- 	0
Votes cast for SEIU, Local 102 	- 	109
Votes cast for Classified Employees
Association 	- 	120
Votes cast for no representation 	- 	19
Valid votes counted 	- 	248
Challenged ballots 	- 	30
Valid votes counted plus challenged
ballots 	- 	278
No party to the election received a majority of the total number of
ballots counted and challenged in the office-technical unit. 	Therefore, 	the
challenged ballots were sufficient to affect the results of the election.
Prior to the date of this hearing the parties met and mutually reduced
the number of challenged ballots from 30 to 16. 	Of the 14 challenged ballots
resolved by the parties, eight ballots were excluded 2 and six ballots were stipu-
lated to be counted. 3
1. 	Joint Exhibit #41, Agreement entered into on August 6, 1976 and approved by
EERB.
2. 	The ballots agreed to be excluded: 	Susan Chappellet, Sandra Saldano,
Barbara L. Kahan, Antonio M. Fernando, Geraldine Wessberg, Phillip Prather, Joyce
Kohlhepp, Bonnie D. Scates.
3. 	The ballots agreed to be counted: 	Mary L. Richardson, Dorothy Smith,
Enrique A. Rivera, Britta Lien, Roberta Metcalfe, Gabie Jack.

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The six ballots stipulated as valid have been held by the regional
director pending the outcome of this decision. 	By including the six additional
ballots, a current tally of ballots would read as follows:
Valid votes counted 	- 	254
Challenged ballots 	- 	16
Valid votes counted
plus challenged ballots 	- 	270
Even if the six ballots are counted no party could receive a majority of the votes
cast. 	Thus a determination of the remaining challenges is necessary.
Of the 16 pending challenged ballots, 15 votes are challenged by all
parties on the basis of disputed job classifications mentioned earlier. 	They are:
Administrative Aides 	Acord, Lewis
Alexander, Charles
Thunnell, Elizabeth
Wilson, Jacqueline
Systems Analyst Programmers: 	Martinez, Seodello A.
Culver, Leroy
Accountants: 	Liddle, Ruby
Mayne, William
Ofina, Ruthy
Sundstrom, Marylou
Villarba, Rolando
Junior Accountant: 	Robinson, Helen
Buyers: 	Hovland, 	Jake
Little, Henry
Irwin, Robert
One voter, Mary Davis, was challenged based upon voter eligibility due to her
employment status.
Pursuant to agreements of the parties, this decision will address the
resolution of (1) whether the above challenged ballots should be counted; and 	(2)
whether the job classifications of administrative aide, 	systems
analyst programmer, accountant, junior accountant and buyer should be placed in
the office-technical unit.
3.

At the commencement of the hearing, 	Classified Employees Association
(hereinafter referred to as CEA) and the San Diego Community College District
(hereinafter referred to as District), moved that an additional determination
should be made as to the classifications of pupil accounting technician and
budget technician since all parties had stipulated that the ballots of any
employee holding these positions should be challenged and their status determined
in the same manner those persons holding positions in dispute at the hearing.
The hearing officer denied the motion on the basis that since no incumbents
exist in the two job classifications, and thus no employees cast a ballot, a
determination of their status in this hearing was inappropriate.
ISSUES
1. Does the Educational Employment Relations Act 4/ require a determi-
nation of whether certain employees are "professional employees" as that term is
defined by federal statute and case law; does the Act further mandate a self-
determination vote by "professional employees"? 	If so, are administrative aides,
accountants, junior accountants, systems analyst programmers, and buyers qualified
to be classified as "professional employees"?
2. 	Are administrative aides either confidential or supervisory
employees?
3. 	Are systems analyst programmers confidential employees?
4. 	Are accountants and junior accountants either confidential or super-
visory 	employees?
5. 	Are buyers either supervisory or confidential employees?
6. 	Are the persons in the above classifications who cast challenged
ballots eligible voters?
7. 	Was Mary Davis an eligible voter on the eligibility cutoff date
indicated in the directed election agreement?
4. 	Government Code section 3540 et seq., hereinafter referred to as EERA
or Act.
4.

DISCUSSION
I. 	PROFESSIONAL EMPLOYEES
Service Employees International Union, Local 20 (hereinafter SEIU),
contends that administrative aides, systems analyst programmers, accountants,
junior accountants, and buyers are "professional employees" as that term is
commonly used under the National Labor Relations Act and therefore are required
to be excluded from the office-technical unit until such time as they make a
self-determination vote. 	The District claims that the "professional employee"
distinction does not exist under the Educational Employment Relations Act, and
furthermore that such employees have no separate community of interest. 	CEA
takes the position that the employees do not meet the educational and other
requirements to be "professional employees."
Section 2, Subdivision 12, of the National Labor Relations Act (29
U . S . C , sec. 152(12) defines "professional employee" as:
Any employee engaged in work (1) predominantly intellectual
and varied in character as opposed to routine, mental, manual,
mechanical, or physical work; 	(2) involving the consistent exer-
cise of discretion and judgment in its performance; 	(3) of such
character that the output produced or the result accomplished
cannot be standardized in relation to a given period of time;
(4) 	requiring knowledge of an advanced type in the field of
science or learning customarily acquired by a prolonged course
of specialized intellectual instruction and study in an institu-
tion of higher learning or a hospital, as distinguished from a
general academic education or from an apprenticeship or from
training in the performance of routine mental, manual, or
physical processes; or (b) any employee who (1) has completed
the courses of specialized intellectual instruction and study
described in clause (4) of subdivision (a), and (2) is perform-
ing related work under the supervision of a professional person
to qualify himself to become a professional employee as defined
in paragraph (a).
Section 9 of the National Labor 	Relations 	Act (29 U . S . C , sec. 159(b),
relating to appropriate bargaining units provides in part:
5.

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(b) 	The Board shall decide in each case whether . 	. 	. the
unit appropriate for the purposes of collective bargaining shall
be the employer unit, craft unit, plant unit, or subdivision
thereof: 	Provided that the Board shall not (1) decide that any
--------unit is appropriate for such purposes if-----such unit includes both
professional employees and employees who -------	are not professional
employees unless a -----majority --of ---such professiona	-- --	l -------	employees vote
for inclusion of such unit: . . . 	(Emphasi	-------------	s added.)
Further a line of National Labor Relations Board cases is cited listing qualifi-
cations necessary to become a professional employee under that statute. 	SEIU
cites other NLRB cases and one Myers-Milias-Brown Act case 5/ mandating separate
"professional units" in support of its claim. 	The argument continues that based
upon decisions of the California Supreme Court,6/ the EERB must look to the
federal law for guidance in order to correctly interpret the EERA.
While the Educational Employment Relations Board has indeed recognized
that in interpreting the EERA cognizance should be taken of the decisions of the
National Labor Relations Board interpreting identical or similar language in the
National Labor Relations Act,7/ the argument that it is bound by such precedent
to create a "per se" rule declaring that professional employees have a separate
community of interest and are entitled to a self-determination vote prior to
inclusion in any non-professional unit cannot prevail.
5. 	Alameda County Assistant Public Defenders Assoc. v. 	County of Alameda,
33 Cal.App.3d 825. 	The case does not appear to be persuasive as it interprets
Government Code section 3507.3 which authorizes professional employee separate
unit status. 	Additionally the court required an evaluation of community of
interest factors to grant a separate professional employee unit rather than
mandating such a unit.
6. 	The Firefighters Union v. City of Vallejo, 12 Cal.3d 608 (1974), and
Social Workers Union, Local 535 v. Alameda County Welfare Department, 11 Cal.3d
382 	(1973).
7. 	See, Los Angeles Unified School District, EERB Decision No. 5, November
24, 1976, fn. 1. "While we are not bound by NLRB decisions, we shall take cogni-
zance of them, where appropriate. 	Where provisions of California and federal
labor legislation are parallel, 	the California courts have sanctioned the use of
federal statutes and decisions arising thereunder, 	to aid in interpreting the
identical or analogous California legislation."
6.

A comparison of the two statutes reveals why. Section 3545 8/ of the Act
serves a role parallel to section 9 of the NLRA in providing statutory criteria
for determination of the appropriateness of bargaining units. 	Beyond this vague
similarity of purpose, 	the unit determination language of the two statutes clearly
cannot be construed as so similar as to require a mandatory reference to NLRB
unit determination case law. 	As an example, section 9, subdivision (b), provides
the NLRB with no statutory standard to determine the appropriateness of bargaining
units.9 	Section 3545 on the other hand established specific standards in sub-
division (a) including community of interest, established practices, extent of
organization, and effect of size of the unit of efficient operation of the employer.
Section 9, subdivision (b), specifically provides that the NLRB shall not
include within an employee unit any group of professional employees unless a
majority of such employees vote for inclusion in a unit. 	Similar exclusions are
provided for craft units, and units of guards. 	The term "professional employee"
is not included within the definitions of the EERA provided in Section 3540.1.
The only mandatory exclusions from the broad criteria for determination of appropri-
ate units set forth in section 354 5(a) appear to be the exclusion of certificated
employees from classified employee negotiations units and the exclusion of super-
visory 	units as provided in subsection 3545(b). 	No exclusion of professional
employees is mandated by section 3545 or any other provision of the Act.
A contention is raised that the absence of a definition of "professional
employee" and a mandatory exclusion provision in the Act resulted from a legislative
oversight. 	A decision to propose a mandatory restriction upon the power of the
Board to interpret unit criteria must rest upon the clear, unambiguous terms con-
tained in the statute. 	Therefore, this argument cannot be upheld.
8. 	All future references are to the Government Code, unless otherwise stated.
9. 	The NLRB has established community of interest standards by case inter-
pretation. 	These standards have, where applicable, been applied by the EERB.
See Oakland Unified School District, EERB Decision No. 15.
7.

This is not to say that a distinct unit of "professional employees"
could never exist under the EERA. 	In an appropriate future case, 	the Board
could, in the absence of a statutory mandate, determine that a certain group
of employees such as professionals, craft workers, or guards have such a com-
pelling "community of interest" by reason of common education, duties, or
skills as to create a presumption favoring an ongoing separate unit 	status or
a self-determination vote. 	Such a presumption would presumably be based upon
an evaluation of the unit criteria in Section 3534(a) 	in the same manner as
the three classified employee units 	(Office-Technical, Operations-Support,
Paraprofessional) 	have been determined to be presumptively appropriate by the
Board in Sweetwater Union High School District 10 and later cases.
A presumption favoring a professional employee unit cannot be found
in this case given the facts in the record and the arguments propounded by the
parties. 	Firstly, no employee organization has petitioned to represent a
separate unit of professional employees. 	No party requested such a unit at
either the original unit determination hearing in the present matter.
SEIU contends that the disputed employees should be excluded from the
office-technical unit on the basis that a "professional unit" should be deemed
to be appropriate and be separated until an organization demonstrates an interest
in representing the employees. 	After rejecting the contention that a professional
unit is mandated by federal law, 	the presumption could be created only by
evidence supporting separation under the "community of interest" or other unit
criteria.
Here the employees hold positions similar to those included in the
"office-technical unit" in Sweetwater.11 The Sweetwater established units for
8,
10. 	EERB Decision No. 4, November 23, 1976
11. 	Ibid.

classified employees remain presumptively appropriate. 	The office-technical
unit stipulated to by the parties in the present case including the disputed
positions is similar to other units found appropriate by the Board. 	In
rebuttal the record reveals that the challenged employees are placed in desig-
nated job classes not eligible for premium overtime pay extended to other
classified employees. 	The only other evidence presented details the educational
attainments of each employee. 	While the hearing officer need not now decide
whether administrative aides, buyers, programmers are "professionals" based
upon NLRB case law, 	it is questionable whether the facts presented could
support a finding that the employees possess sufficient required educational
background, 	specialized knowledge and perform technical work to be so
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characterized.12/In the absence of further evidence supporting a lack of community of
interest with the office-technical unit, no separate unit of employees may be
created. 	Furthermore, without a showing by an employee organization that it
proposed to represent a group of employees who because of their uniqueness should
have a right to self-determination and have expressed an interest in a choice,
this hearing officer could not consider proposing a presumption in favor of
self-determination by a separate "professional employee" unit.
12. 	No party contended that the employees, if not professionals, should be
characterized as "technical employees" entitled to a self-determination vote
under NLRB case decisions similar to the right of professional employees. 	It
should be noted that while the NLRB formerly took the position that all technical
employees should be automatically excluded from units of non-technical workers
upon objection, 	the current policy requires separation of technical employees
only upon a case-by-case analysis of "community of interest" factors. 	Sheffield
Corp., 134 NLRB 1101, 49 LRRM 1265 (1961); The Budd Company, 136 NLRB 1153, 49
LRRM 1956.
9.

II. 	CONFIDENTIAL AND SUPERVISORY ISSUES
SEIU additionally claims that the ballots of the fifteen persons in
the alleged "professional classes" who voted should be excluded on the basis that
those positions are either confidential, supervisory, or both. CEA counters that
all disputed employees are members of the unit and their ballots should be
counted. 	The District takes no position on this matter.
A discussion of individual challenged voters as confidential employees
is undertaken with the following precedent in mind.
Section 3540.l(c) of the Act defines confidential employee as:
Any employee who, in the regular course of his duties,
has access to, or possesses information relating to, his
employer's employer-employee relations.
In interpreting this section, 	the Board has stated that an employer
should be allowed a nucleus of individuals to assist the employer in its employer-
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employee relations. 	On the other hand, 	it must be considered that those
employees designated as "confidential employees" are exempted from coverage
under the Act and lose all rights and privileges of other "public school
employees."14/ Challenged voters and incumbents in the job classifications of
administrative aide, systems analyst programmer, accountant, junior accountant,
and buyer are alleged to be confidential employees. 	As set forth below, 	challenges
as to all individuals excepting Mr. Leroy Culver, systems analyst programmer, on
the basis of access to confidential information are clearly not supported by
the record. 	Mr. Culver, while presenting a closer case, is also determined not
to be a confidential employee.
A determination of the supervisory status of challenged voters is
made on an individual or job classification basis considering the following
factors.
13. 	Fremont Unified School District, EERB Decision No. 6, December 16, 1976.
14. 	Sierra Sands Unified School District, EERB Decision No. 2, October 4, 1976.
10.

Supervisory employees are defined by section 3540.l(m) as:
Any employee, regardless of job description, having authority
in the interest of the employer to hire, transfer, suspend, layoff,
recall, promote, discharge, assign, reward, or discipline other
employees, or the responsibility to assign work to and direct them,
or to adjust their grievances, or effectively recommend such action,
if, in connection with the foregoing functions, the exercise of such
authority is not of a merely routine or clerical nature, but requires
the use of independent judgment.
The Board has determined that this section is written in the disjunctive;
therefore an employee need not possess all enumerated functions or duties to be
a supervisor. 	The possession of any one of the duties or the effective power
to recommend such action through the use of independent judgment in the cases
presented thus far has been sufficient. 15 Voters in the job classifications of
administrative aide, accountant, and junior accountant and buyer were challenged as
supervisory employees.
ADMINISTRATIVE AIDES
The District employs seven administrative aides. 	One aide, Mr. Conrad
Garner, was stipulated to be included in the unit. 	Two administrative aides did
not vote in the election. 	The votes of four administrative aides were challenged.
No testimony indicated that the duties of the two nonvoting aides are substantially
different than those at issue. 	Administrative aides are employed in the District
to provide information and assistance to directors or administrative assistant II's
who serve in management positions and to administrative assistant, I's who serve in
supervisory positions. 	The aides in dispute are used generally as technical
writers, to provide legislative analysis to generate research analyses, and to
provide cost effectiveness studies. 	The position is an entry level one. 	Promotions
15. 	Sweetwater Unified School District, supra; San Diego Unified School
District, EERB Decision No. 8, February 18, 1977; Foothill DeAnza Community
College District, EERB Decision No. 9, March 1, 1977; Oakland Unified School
District, Decision No. 15, March 28, 1977.
11.

may be made to administrative assistant, personnel analyst, budget analyst, or
accountant dependent upon the department which the aide serves. 	Administrative
aide positions are transferable within the District. 	While the job description
states that an incumbent's responsibilities might include the training and evaluation
of work of other individuals, the record does not cite any instances of such
activity. 	No testimony reveals that any of the administrative aides hire, transfer,
suspend, layoff, recall, promote, discharge or discipline or recommend such action
with respect to other employees. 	The only apparent contention is that certain
employees may assign or direct the work of clericals sufficient to be
supervisory or have access to certain employer policies or other confidential
materials and are confidential.
Considering the individual aides challenged as voters, Lewis Acord
is a technical writer working for the director of administrative services. 	He
edits and drafts district policies and procedures which are ultimately adopted by
the administration and/or the governing board. 	He does not create the substantive
policy contained in his drafts. 	He shares one secretary with another administrative
aide. 	The secretary reports directly to an office supervisor. 	In the course of
drafting policies he does edit policies regarding personnel matters and the
behavior of employee organizations in the collective bargaining process.
Another aide, Elizabeth Thunnell, assists the director of administrative
services by preparing analyses of legislative bills pending in Congress and the
state legislature. 	While her analyses may deal with legislation affecting
negotiations, her summary is a factual one and does not include recommended action.
In addition she indexes opinions for the deputy county counsel retained by the
district. 	She shares a secretary with Mr. Acord.
12.

Charles Alexander prepares statistical analyses
of demographic data related to students and residents in the community college
district. 	He is not involved in assigning work to or hiring any clerical employees.
Jacqueline Wilson is employed in the business and accounting division
as a cost effectiveness analyst. 	She conducts time and motion studies funded
by grants to the District. 	While her studies classify the kinds and amount of
work that each job classification is expected to perform, 	the studies do not re-
late to the setting of salaries or other employee negotiations. 	She does not
directly give assignments to any clerical staff.
No administrative aide has been shown to have regular and direct access
to information used in the negotiation process. 	By its decisions, the Board
appears to have adopted a definition of "information used in employee-employer
relations" which is somewhat narrower than any information relating generally
to District policies or personnel matters. 	None of the administrative aides
possess any of the criteria necessary to be a supervisory employee. 	Therefore,
the position of administrative aide shall be included in the unit and Lewis
Acord, Elizabeth Thunnell, Charles Alexander, and Jacqueline Wilson are eligible
voters.
SYSTEMS ANALYST PROGRAMMERS
Two persons cast challenged ballots as systems analyst programmers
—Seodello Martinez and Leroy Culver. 	They are claimed to be confidential
employees. 	No testimony was introduced that other systems analyst programmers
performed duties substantially different than the two employees.
A systems analyst programmer is employed to rate programs and develop
systems in computer language. 	The position is an entry level one which may lead
13.

to associate systems analyst programmer and ultimately senior systems analyst
programmer. 	Data processing in the District is divided into two sections, the
key punching department and the systems analyst department. 	Each section is
headed by a senior systems analyst programmer who is a confidential employee.
The senior systems analyst programmer is the project leader who generally makes
direct contact with members of the administrative staff to determine the information
requested from a computer program or to interpret the results of the program.
The systems analyst section is further broken into two areas: 	(1) 	student per-
sonnel data and (2) payroll, personnel and financial data. 	Martinez serves in
the student personnel section and Culver in the financial area.
The financial data section of the systems analyst department has been
requested to provide information related to the salary structure and classifica-
tions of employees within the District. 	Such a request is generally referred
to the senior systems analyst programmer (confidential employee), but might be
referred by him to a systems analyst programmer. 	The programmer's function is
to write a program to extract statistical information regarding salaries and
classifications from 	the county office of education which operates the computer.
The evidence is vague as to the frequency of these requests and as to whether
the information obtained is public information and/or is no more than a compila-
tion of existing known facts.
In addition, 	the data processing manager testified that within the
past year the office in general has had access to confidential personnel payroll
information. 	Prior to the past year requests were made directly from the per-
sonnel office to the San Diego city schools which retained the information for
this District. 	No testimony indicated the frequency of access to this information
by any systems analyst programmer.
14.

SEIU contends that any access to budgetary information for salaries and
fringe benefits of classified employees by the systems analyst programmers is
synonymous to "access to information relating to his employer's employee relations"
within the definition of confidential employee. 	In Sierra Sands16 the Board stated:
The fact that the . 	. 	. 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 mechanical act of calculating costs
does not necessarily provide clerical support personnel with
confidential knowledge pertaining to the employer's position
on bargaining matters or other information regarding the
employer's employee relations.
In the present case the testimony has demonstrated generally that
systems analyst programmers have some contact with personnel information and
develop programs utilizing wage and fringe benefit information. 	Such a finding
does not lead to a designation as confidential employees for the following reasons:
(1) 	Access to personnel matters is not necessarily related to
"employer-employee relations";17
(2) 	The making of computer runs of prerequisite statistical information
without additional evidence appears closer to compiling data than evaluating
data; and
(3) 	No evidence has shown that the regular duties of the employees
include 	access to confidential employer-employee relations information.
It is concluded that the systems analyst programmers are not confidential
employees within the meaning of the Act. 	Soedello Martinez and Leroy Culver are
eligible voters.
16. 	Sierra Sands, supra, at p. 6.
17. 	Ibid, at p. 6.
15.

ACCOUNTANTS
Ruby Liddle, William Mayne, Ruthie Ofina, Marylou Sundstrom, and Rolando
Villarba cast challenged ballots as accountants. 	No other persons exist in the
job classification. 	They are challenged on the basis of either being confidential
or supervisory employees. 	The hearing officer finds that despite conflicting
testimony that none of the accountants are confidential or supervisory employees.
The accounting department consists of 17 classified employees. 	It is
one of three departments organized under the director of business services who is
a management employee. 	The department is headed by the accounting manager 	(senior
accountant) who is also a management employee. 	The department is divided into four
sections: 	internal audits, general accounting, special projects accounting and
A.B.S.O. accounting. 	Each section is headed by an accountant and, with the ex-
ception of internal audits, contains one to two additional account clerks.
General accounting and special projects accounting are further subdivided into two
specialty areas, each containing one accountant and one to two additional employees.
The business services director also oversees the purchasing department 	(including
buyers in dispute) and the budget department. 	The secretary to the business
services director and the budget analysts within the budget department are desig-
nated confidential employees.
In general the accountants keep daily records regarding the business
operations of the District, including ledgers, worksheets, and other necessary
data. 	The accountant heading the general accounting section is Ruby Liddle.
Mrs. Liddle is a general accountant who maintains the District ledger including
the receipts journal, the disbursements journal and subsidiary worksheets.
Working with Mrs. Liddle is a payroll clerk who handles payroll distribution and
assists with general accounting duties. 	Ruthie Ofina is the accountant in charge
of one subdivison of special projects. 	Her responsibility covers financial aids,
16.

grants and loans to students. 	Two clerks are assigned to Mrs. Ofina to maintain
approximately 3,325 student accounts. 	The clerks maintain the accounts and process
documents which support the payment of funds to students. 	Marylou Sundstrom is
also an accountant in special projects responsible for processing payments by
the Veterans Administration to students enrolled in the community college.
Mrs. 	Sundstrom is assisted by an account clerk whose duties include the posting
and recordkeeping of checks received from the federal government and contacting
eligible students to receive endorsements for their grant funds. 	William Mayne
serves as the internal auditor who audits District accounts. 	He works independently
and is the only member of the internal audit section.
The testimony indicates that Rolando Villarba in operating the A.B.S.O.
account section operates a program independent of all other District accounting
functions. 	His duties are performed for an independent Auxiliary Business Services
Organization which makes policy decisions relating to the operation of college
book stores and food service operations. 	He performs a commercial accounting service
unlike the governmental accounting duties performed by the other accountants.
He is assisted by two clerical employees who process claims from commercial vendors
and verify other banking statements. 	All accountants are eligible for straight
time overtime pay as are other "exempt" employees, some of whom are classified as
management or supervisory.
In the broad sense all accountants do have access to information regard"
ing wages, fringe benefits, cost of District programs and other financial data
which could be described as information relating to employer-employee relations.
It is clear, however, that the accountants do not make projections as to future
costs which relate to employer or employee negotiations proposals. 	Such work is
17.

performed by budget analysts who are designated confidential employees. 	It has
also not been shown that accountants as a regular part of their duties provide
information other than documentation of current computations all of which would
be public records under the State Public Records Act.
Testimony given by the director of business services inferred that Mr.
Villarba might be required to report information regarding the book stores or food
services used in negotiations. 	The senior accountant, Mr. Villarba's
direct supervisor, clarified that the information relating to the auxiliary business
services was not confidential, but was instead data subject to public inspection.
Without more evidence none of the accountants can be designated confidential
employees.
The issue of whether a technical or "quasi-professional" employee such
as an accountant, who performs complex work alongside of a trained assistant who
is delegated more routine work, is a supervisor is one of first impression under
the Act. 	Prior supervisory decisions by the Board have related to either certi-
ficated employees or to operations employees who have exercised direction over five
18/
to ten or more subordinates.
Further complicating the matter in this case is the rather broad use of
the term "supervising" in concept by District policy and through testimony by
management employees. 	While testimony by both the wage and salary administrator
and the director of business services indicated that they considered all accountants
to be in charge of their assigned clerks, 	the hearing officer relies more heavily
upon the testimony of Mr. Dexter Lacy, the accounting manager, who appears to be
the direct supervisor of the employees. 	Mr. Lacy by way of clarification refuted
18. 	Head custodians, school secretaries - Sweetwater UHSD, supra;
area cafeteria manager, cafeteria manager 1, building services supervisor,
head gardener - San Diego USD, supra; department heads, curriculum specialists
- Lompoc USD, EERB Decision No. 13, March 17, 1977.
18.

earlier testimony that the accountants possessed authority to hire, discipline,
grant leaves of absences, and formally approve overtime.
A review of each of the job descriptions of professional-technical
employees listed in the District salary schedule19 reveals that every employee
is expected in some sense to supervise or to be called upon to supervise clerical
or trainee assistants. 	In fact the class description of many clerical employees
including account clerks II, III and IV mention the supervision of other clerical
employees. 	Only a small percentage of the employees with job descriptions listing
duties including supervision have been stipulated to be supervisors under the Act.
All accountants act as reviewers in filling out evaluations for the
account clerks serving in their section. 	Evaluations are forwarded to the director
of business services for approval. 	No evidence was presented indicating whether
any disciplinary or promotional action resulted from the evaluation. 	The record
indicates that other nonsupervisory employees in the District also fill out
evaluations for other employees. 	While the authority to grant sick leave and
overtime rests with the director of business services, such authority has been
informally passed through the accounting manager to each individual accountant.
The accounting manager explained that the accountant did not actually approve sick
leave but merely was the person to whom the clerical called in to report an absence
In addition, overtime could be proposed for clericals by an accountant but was
independently approved by the manager. 	The District is a merit employer and
accountants individually have no authority to hire, transfer, suspend, layoff,
promote, recall, discharge or discipline clerical employees. 	No witness indicated
that the accountants have ever recommended such action. 	The accountants do not
adjust grievances of the clerks. 	The director of business services appoints
a three to five person committee to fill a vacant position. 	The committee need
19. 	Joint Exhibits #7-24A.
19.

not necessarily include the accountant in the section where the vacancy exists.
A final employment decision is made by the director of business services.
The closer question must address whether each accountant assigns or
directs the work of a clerical employee to an extent that and of the nature that
his or her authority requires the use of independent judgment. 	The accounting
manager testified that Ruby Liddle spends approximately five percent of her time
assigning work to the payroll clerk. 	The remaining work performed by the clerk
appears to be of a routine nature. 	The clerks serving with Ruthie Ofina work
independently processing a high volume flow of grants and aids documents. 	Mrs.
Ofina has a separate set of duties and spends approximately ten percent of her
time directing the work of the clerks. 	The duties performed by the clerks assisting
Marylou Sundstrom also involve routine high-volume operations. 	Mrs. 	Sundstrom
performs separate duties and evaluates individual items of work approximately
five percent of the time.
The testimony of the wage and salary administrator, 	the director of
business services, and the accounting manager attempted to distinguish the authority
of Mr. Villarba from the other accountants. 	While he receives no pay differential,
a proposed organization chart identifies Mr. Villarba at least informally as an
accounting supervisor. 	Due to the nature of the commercial accounting program in-
volved, much of the work differs from other general accounting functions. 	Much of
the weight given to his implied supervisory status is summarized by the following
testimony of the accounting manager:
[A] 	I would say that his duties are strongly supervisory for the
reason that he receives very minimal supervision from me . 	. 	. 	.20
20. 	Transcript volume II, p. 57, line 17,
20.

The hearing officer finds that the nature of Mr, Villarba's relationship
with his own supervisor is not compelling in the view of other evidence that his
assignment of duties to clericals appears no less routine than assignments made by
other accountants. 	It appears that each of the clericals in question, once
trained, perform their duties independently a vast majority of their work time.
They consult with the accountant only in exceptional situations. 	Policy issues
requiring a substantial degree of independent judgment would be referred to either
the accounting manager or the director of business services,
A literal reading of the supervisory statutory criteria could require
that each technical employee who is assisted by a secretary or works as a team
with other clericals be designated supervisory on the basis that they effectively
recommend one of the following: 	(1) assignment or direction of work based on the
delegation of any duty more complex than simple typing or filing; 	(2) authorization
of time off if the clerical calls in sick to them; or (3) discharge if they file
a first evaluation on the employee's performance.
In Sweetwater, 	the Board declined to designate a school secretary as
supervisory in part because "day to day operation does not require the school
secretary to make specific work assignments," 21 In the present case there is no
question but that accountants have some responsibility to direct other employees.
Yet, the accountants spend 90 percent of their time performing independent duties.
No showing was made that the salary range of the accountants reflected any addi-
tional compensation for supervisory duties. 	The accountant appears to be more akin
to a skilled worker who provides assistance when a question arises by a paraprofessional
who is otherwise doing high volume routine work. 	The testimony of the wage and
salary administrator seems to best describe the so-called "supervisory" relationship
of the accountants. 22
21. 	Sweetwater UHSD, supra, at p. 16.
22. 	Transcript volume I, p. 80, lines 5-25.
21.

[Hearing officer] 	Q. 	Would you estimate the amount of time that
an accountant who does supervise clerical personnel spends in that
supervisory 	function?
[Manges] 	A. 	It's difficult to estimate, but it's a relatively
small portion of time compared to an individual whose primary
responsibility is supervision or office management. 	In this
case, an Accountant who supervised other people typically
would have one or two at the most other clerical staff working
for him or her who did fiscal clerical activity such as posting
ledgers and maintaining records. 	Their activities are self-
generating in that they have a — they would have an ongoing
responsibility to keep a certain set of records and to process
a certain kind of document and the responsibility of the
Accountant in that area, let's say, accounts receivable,
would be to train new individuals coming into the position
and to provide leadership and to answer technical questions
of — where a person was unsure as what to do and to do the
types of things like, you know, you're coming in late and you're
not taking as many breaks as you should or you're taking too many
and that type of thing.
A final factor to be considered is the supervisor-employee ratio within
the accounting department which would result from designating the accountants
"supervisory." 	The department would consist of two management employees, five to
seven supervisors, 	and six to eight employees. 	While not a controlling factor,
NLRB precedent appears to require a closer scrutiny of positions when the number
of proposed supervisors is disproportionately large.
In the face of the recognition that designation as a supervisor does
not deprive a worker of all rights as an "employee" under the Act, the hearing
officer nevertheless determines on the basis of all testimony presented that
all the accountants are not supervisors based upon the following factors:
1. 	The inconclusive evidence supporting authority to
effectively evaluate clericals;
23. 	Two additional non-accountants hold positions in subdivisions of the
department with identical responsibilities with respect to other clericals.
24. 	Commercial Fleet Wash., 77 LRRM 1156 (1971).
22.

2. 	The insignificant percentage of time spent in assigning and di-
recting work;
3. 	The high volume and routine nature of the duties performed by
the clericals, and
4. 	The disportionately large number of supervisors which would result
from the designation.
JUNIOR ACCOUNTANT
The District employs one junior accountant--Helen Robinson. 	The job
description for junior accountant 25 states "under immediate supervision, performs
beginning level professional accounting duties 	. . . . 	Unlike the descriptions
of a majority of other technical employees, 	the junior accountant description
nowhere mentions any supervisory duties.
The junior accountant does not work in the accounting department. 	She
is employed in the office of student personnel services and is paid at a level
equivalent to an administrative aide. 	The office is divided into three high
volume recordkeeping functions—admissions, veterans records, and attendance
accounting and special reports. 	Mrs. Robinson heads up the attendance accounting
functions. 	Staff heading the other functions are designated management or super-
visory and are paid at 20 percent to 40 percent higher salary levels. 	In a manner
similar to the accountants, Mrs. Robinson is assisted by a clerk II. 	An evaluation
sheet is filed with the director by Mrs. 	Robinson regarding the performance of
the clerk. 	Because of the volume of work and understaffing, each of the three de-
partments appears to have carte blanche authority to authorize overtime for clericals
and to grant routine absences in the absence of the coordinator. 	The coordinator
of student personnel services gave rather confusing testimony regarding the fre-
quency and nature of supervision give by Mrs, Robinson to the attendance clerk.
25. 	Joint Exhibit #12.
23.

Regarding the percentage of Mrs. Robinson's time spent in supervising, on one
occasion he stated "really shooting off the top about 40 percent of the time.
They work that closely that you would have to be at least 40 	. . . . 26
On another occasion the testimony related:
[Hearing officer] 	Q. 	Can you estimate what percentage of Mrs.
Robinson's time she would spend in assigning work or evaluating
the work of Mrs. Cravens?
A. 	Right now, it's very little, . . . they work so closely.
I'm sure it's very much a self-evaluation.
The analogy of a skilled worker working in conjunction with a parapro-
fessional must be applied to the junior accountant as well. 	Assignment of the
duties of "typing, checking residency cards, . . 	. typing and filling out reports"
28
performed by the clerk are in a broad sense routine. 	The actual direction and
special instructions given by the junior accountant are on an exception basis.
While it is troublesome that the other two section heads designated
management and supervisory employees by the District appear to have responsibilities
similar to Mrs. Robinson, no testimony was offered relating to their duties.
It was mentioned that the management employee would be in charge of the entire
office in the coordinator's absence.
No evidence indicates that the junior clerk is a confidential employee.
The testimony taken as a whole does not require her exclusion from the unit as
a supervisor.
BUYERS
Each of the buyers casting ballots were challenged as being supervisory
or confidential employees. 29/ They are Henry Little, Jacob Hovland and James Irwin.
26. 	Transcript volume II, p. 148.
27. 	Transcript volume II, p. 147, lines 22-23.
28. 	Transcript volume II, p. 143, lines 8-10.
29. 	At the hearing SEIU sought to exclude buyers solely based upon a
"supervisory" claim. 	The SEIU brief discusses exclusion based solely upon an
alleged "confidential" status. 	This decision will address both grounds.
24.

Buyers procure equipment and goods from private vendors on behalf of
the District. 	The purchasing unit consists of 11 employees: 	the manager, three
buyers, and seven clericals. 	While the District job description for buyer states
they might be called upon to interview, evaluate and "supervise" clerical employees,
in practice they do not. 	The clericals perform independent jobs related to pur-
chasing, and are not assigned to individual buyers. 	They report directly to the
clerical supervisor, 	the secretary to the purchasing manager. 	Any illness or time
off is reported to the clerical supervisor.
None of the buyers have, in practice authority to hire, transfer, layoff,
promote or direct the work of other employees or effectively recommend such action.
The buyers are not supervisory employees. 	The director of business services testi-
fied that buyers have never been requested to provide cost data to the district
negotiator. 	The buyers could not be excluded as confidential employees based upon
hypothetical access to information used in negotiations.
III. 	ELIGIBLE VOTER
The ballot of Mary Davis was challenged based upon a question as to
her eligibility as a voter. 	The parties stipulated that Ms. Davis was employed
by the District as an intermediate clerk. 	She was granted a long-term leave
of absence effective July 18, 1975 to extend until July 6, 1976. 	At the end of
the leave of absence she notified the District of her request for reinstatement.
A position was offered as an intermediate clerk in the purchasing department and
Mrs. Davis rejected the reinstatement thereby waiving her right to bump a junior
employee. 	Ms. Davis was finally reinstated on November 1, 1976.
In order to be eligible to vote, an employee, including those who did
not work because they were ill, on vacation, leave of absence, sabbatical or tem-
porarily laid off or in the military service, must be employed on eligibility cutoff
25.

date and be employed on the date of election. 29 In the present case the eligibility
cutoff date was October 31, 1976 and the election date was December 1, 1976.
The contention proposed by SEIU is that Mary Davis had not requested
an extension of her leave of absence beyond August 6, 1976 as was required by
District policies. 	Further that by her rejection of a prior position she waived
her right to bump a junior employee and therefore had no status with the District
on the voter eligibility cutoff date.
Ms. Davis was a permanent employee who requested a leave of absence
pursuant to District policy based upon health reasons. 	The leave was granted by
the director of personnel services and she was extended seniority credit until
July 18, 1976. 	District policy gave the employer the option of placing an
individual on an authorized leave of absence back into their identical former
position or the right to bump the least senior position person in their former
job classification. 	Prior to the conclusion of her leave of absence, Ms. Davis
requested reinstatement but at the suggestion of the District that new positions
were being created which would not entail bumping another employee, 	did not
exercise her bumping rights at that time. 	Through discussions with the director
of personnel services Ms. Davis' leave of absence was informally extended until
a mutually satisfactory position could be found for her within the District.
While District policy required a written extension of a leave of absence,
Ms. 	Davis was entitled to rely upon the representations of the administrator
authorized to grant such extensions. 	It was clearly represented that her employ-
ment status remained in good standing. 	The representation was confirmed by the
District's continuing to allow seniority credit during the period of July 18 until
November 1 when Ms. Davis was actually re-employed. 	The fact that Ms. Davis was
offered a position in the purchasing department and rejected the position during
the interim period does not overturn all other evidence that in the minds of the
29. 	EERB consent election agreement form.
26.

parties she was on an extended authorized leave of absence. 	Mary Davis was an
employee with the District on a leave of absence on the voter eligibility date
and was an employee actually working on the election date. 	She is an eligible
voter.
PROPOSED DECISION
It is the proposed decision that:
1. 	The job classifications of administrative aides, systems analyst
programmers, accountants, junior accountants, and buyers are not eligible for self-
determination as a unit of "professional" employees.
2. 	The office-technical unit shall be amended to include administrative
aides, systems analyst programmers, accountants, junior accountants, and buyers.
3. 	The following employees are not either supervisory or confidential
within the meaning of Government Code section 3540.l(c) and section 3540.l(m):
Administrative aides, systems analyst programmers, accountants, junior accountants,
and buyers.
4. 	Challenged voter Mary Davis was an employee on leave of absence
on the eligibility cutoff date and is an eligible voter.
5. 	The following employees casting challenged ballots are employees
within the unit eligible to vote and their ballots shall be counted:
Lewis Acord, Charles Alexander, Elizabeth Thunnell, Jacqueline Wilson, Seodello
Martinez, Leroy Culver, Ruby Liddle, William Mayne, Ruthy Ofina, Marylou Sundstrom,
Roland Villarba, Helen Robinson, Jake Hovland, Henry Little, Robert Irwin, and
Mary Davis.
The regional director is requested to open the following challenged
ballots stipulated to be counted by the parties:
27.

Mary L. 	Richardson, 	Dorothy Smith, 	Enrique A. 	Rivera, 	Britta Lien,
Roberta Metcalfe, 	Gabie Jack .
The parties have seven 	(7 ) 	calendar days 	from receipt of 	this proposed
decision in which to 	file exceptions 	in accordance with section 33380 of 	the
Rules and Regulations. 	If no party files 	timely exceptions, 	this proposed de-
cision will become a 	final order of 	the Board on April 29, 	1977 and a notice of
decision will 	issue from the Board . 	At 	that 	time the regional director 	is 	further
instructed to open each of 	the challenged ballots determined to be valid herein,
to 	file a 	revised tally of ballots 	consistent with this decision, 	and to certify
an exclusive representative of 	the employees 	in the office-technical unit or
to conduct a 	runoff election as appropriate.
Dated: 	April 19, 	1977 .
28.
Ter:pr 	Filliman
Hearing Officer

STAlE OF CALIFORNIA
EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
923 12th Street , SUite 2o1
Sacramento, 	califomia 	95814
( 916 ) 322-3 088
September 16, 	1977
William J. 	Bauer, 	Esq.
4190 Bonita Road, 	Suite 205
Bonita, 	CA 	92002
Michael F . 	Posner, 	Esq.
3055 Wilshire Bl vd., 	Suite 900
Los Ange l es, 	CA 	90010
EDMUND G. BROWN JR~ Govemor
RE : 	San Diego Community Co ll ege District, 	LA-R-16, 	17, 	173, 	EERB Decision No. 	28
Enclosed 	is a 	copy o f 	the Order adopted by the Educationa l 	Emp l oyment Relations
Board concerning the Service Employees 	International Union, 	Local 102, 	AFL- CIO's
exception to the hearing officer's proposed decision dated April 	15, 	1977.
Sincere l y,
CHARLES L . 	COLE
Executive Director
Enc l osure
CLC:dd
cc : 	Ceci l 	J . 	Hannan
Director-Administrative 	Services
& Chie f 	Negotiator
Attention : 	Timothy Gar f ie l d
San Diego Community College District
3375 Camino de l 	Rio South
San Diego, 	CA 	92180
Classi f ied Emp l oyees Association
Dodge H. 	Dean, 	Field Representative
4406 	Park Blvd.
San Diego, 	CA 	92116
Service Employee 	Internationa l 	Union
AFL-CIO
James 	Hawes
732 	"F" 	Street
San Diego, 	CA 	92101