Campbell Union High School District (PERB 0066E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CAMPBELL UNION HIGH SCHOOL DISTRICT,

)
)
Employer, )
)
and )
)
CALIFORNIA SCHOOL EMPLOYEES
CHAPTER 266, ASSOCIATION, ) Case No. SF-UC-21
)
Employee Organization, ) PERB Decision No.66
)
and » August 17, 1978
SERVICE EMPLOYEES INTERNATIONAL UNION, )
LOCAL 715, )
)
Employee Organization. )
oo. }

Appearances: Daniel C. Cassidy, Attorney (Paterson & Taggart) for
Campbell Union High School District; Robert L. Blake, Attorney and
Harry Jaramillo, Field Representative for California School Employees
Association, Chapter 266; Robert J. Bezemek, Attorney (Van Bourg,
Allen, Weinberg & Roger) and John Tanner, Field Representative for
Service Employees International Union, Local 715.

Before: Gluck, Chairperson; Cossack Twohey and Gonzales, Members.
DECISION

On April 28, 1977, pursuant to consent election agreements,
elections were held in two Campbell Union High School District
(hereafter District) classified employee units. California School
Employees Association, Chapter 266 (hereafter CSEA) was certified
as exclusive representative for the"clerical, technical, and busi-
ness services unit" and Service Employees International Union, Local
715 (hereafter SEIU) was certified as exclusive representative for
the "operational support" unit. The parties had agreed that the

employees or lead custodians "supervisory" employees within the

meaning of 	the Educational Employment Relations Act 	(hereafter EERA)
would be 	settled in a subsequent unit 	clarification proceeding.2
The agreed upon unit clarification hearing was 	held and a pro-
posed decision 	issued. 	The confidential 	and 	supervisory 	employee
issues have reached the Public 	Employment Relations 	Board 	(hereafter
PERB or Board) 	on exceptions 	filed by CSEA3 and SEIU to 	the hearing
officer's proposed findings 	that principals' 	secretaries 	are confidential
employees 	and that 	lead custodians 	are 	supervisory employees.
These two 	issues will be treated separately. 	For reasons 	that appear
below, 	we affirm the hearing officer's 	findings on both questions.
Secretaries 	to 	School Principals
FACTS
District has 	eight high schools 	and one continuation school. 	In
each of these nine schools 	there is a principal 	(or director) 	and a
principal's 	secretary. 	The principals 	are actively 	involved 	in
employer-employee relations. 	Although they do not participate in
the actual meetings 	at 	the negotiation table. 	Since 	the 	inception
of the, EERA District has relied upon, school principals to provide input
regarding the needs of individual 	schools 	and to 	assess 	the potential
impact of employee organization proposals 	on school operations.
Regular meetings 	(three to five times per month) 	are held so 	that
principals 	and District personnel 	can review the negotiation positions
of the Board of Trustees 	and of employee organizations. 	Principals
direct 	site management 	team evaluations 	of 	employee 	organization
The Educational Employment Relations Act is 	codified at Gov.
Code sec. 	3540.et seq. 	All 	statutory references 	are to 	the Govern-
ment Code unless otherwise specified. 	See secs. 	3540.l(c) 	(confidential
employee defined) 	and 3540.l(m) 	(supervisory employee defined), which
are quoted in text accompanying notes 4 and 12, 	infra.
2 Cal. Admin. Code, tit. 8, 	sec. 33260 allows an employee organi-
zation, 	an employer, 	or both jointly, 	to file a petition for a change
in unit determination.
The actual 	date on the document received from CSEA is 	October 	19,
1977. 	District 	filed a motion to 	dismiss CSEA's 	exceptions 	as untimely
filed, 	contending that the deadline for filing was October 18, 	1977.
However, 	a timely copy of the CSEA document was 	received in PERB's
headquarters office on October 18, 	1977. 	Moreover, 	CSEA received
the proposed decision on October 12, 	1977, 	and thus 	exceptions were
not due until October 19, 	1977. 	Accordingly, 	the motion to dismiss
the 	exceptions 	filed by CSEA is 	denied.
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,4
proposals 	and 	are 	responsible 	for 	communicating 	recommended 	responses
to 	the negotiator 	for 	the 	Board of Trustees. 	Principals 	also 	pre-
pare and communicate 	to 	the negotiator recommendations concerning negotiation
strategies 	and priorities. 	These recommendations are 	a 	substantial
input 	into 	District's 	ultimate negotiating 	strategies 	and positions.
In addition to 	their 	active 	involvement 	in 	the negotiation process,
principals 	have 	a 	central 	role 	in 	the processing of employee
grievances.
A principal's 	secretary handles 	correspondence 	as 	well 	as
routine 	administrative 	and 	clerical 	detail work 	for 	the 	school
principal. 	Principals' 	secretaries 	are not 	directly involved 	in
the negotiation process, 	nor 	do 	they directly participate 	in the
evaluation 	of 	District 	positions 	or 	the 	formulation of 	recommendations
as 	to District 	negotiation priorities 	and 	strategies. 	The 	secretaries
do, 	however, 	type all 	correspondence 	concerning 	these matters 	that
the principals send to the negotiator. 	The secretaries are also responsible
for 	maintaining 	files 	containing 	the 	negotiating 	information 	and
they receive 	and collate negotiation 	material 	that 	is 	mailed 	to
the principals. 	Moreover, 	the 	secretaries 	sit in on and take
minutes 	at 	the 	site management-team meetings 	at which recommendations
are 	formulated regarding District 	negotiation positions, 	strategies,
and priorities.
As 	to 	the processing of employee grievances, 	principals'
secretaries maintain 	the 	files 	for 	such matters, 	are responsible
for 	getting 	appropriate correspondence 	out, 	and attend meetings 	of
management personnel 	to 	take minutes. 	On at 	least 	some occasions
a principal's 	secretary 	is 	present 	and 	taking minutes 	during 	the
actual 	grievance 	session,
DISCUSSION
A confidential 	employee 	is 	"any employee who, 	in 	the regular
course of his 	duties, 	has access 	to, 	or possesses 	information
relating to, 	his employer's employer-employee relations."4
We have 	said that 	"employer-employee 	relations" in 	this 	context
includes, 	at 	the minimum, 	employer-employee negotiations
4 Sec. 	3540.l(c).
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and the processing of employee grievances. 5 Principals' 	secretaries
maintain files 	and process 	correspondence 	containing 	information
relating to negotiations and employee grievances; 	they are present
at management meetings relating to these matters; 	they receive and
collate related material that is sent to the principals. 	Thus, 	on
the clear facts presented, 	principals' 	secretaries both have access
to and possess 	the sort of information that would warrant their
designation as confidential employees.6
The mere access 	to or possession of confidential 	information by
an employee will not, 	however, 	in and of itself result in that
employee's 	designation as 	confidential. 	A confidential employee
must function as 	such in the regular course of his or her duties
before the denial of representation rights 	that accompanies 	such
classification7 is justified. 	We have said that "more than a
'fraction' 	of the 	[employee's] 	time" must be spent in confidential
matters.8 The individual must, 	in other words, 	have access to or
possess 	sufficient information to warrant 	the conclusion that the
employer's 	ability to negotiate with employees 	from an equal posture
might be jeopardized, 	and the balance in employer-employee relations
sought to be achieved by the EERA thus distorted, 	if the information
was prematurely made public. 9 Principal's secretaries have an
involvement with employer-employee relations 	that more 	than satisfies
this requirement. 	Duties relating to employer-employee relations and
grievances 	take up a significant part of their time. 	One principal
estimated, 	in uncontradicted testimony, 	that his 	secretary spent
about 25 percent of her total time on confidential matters. 	This
5Fremont Unified School District (12/16/76) EERB Decision No. 6, at 11.
6See Sierra Sands Unified School District (10/14/76) EERB Decision No. 2.
7 Sec. 3 5 4 0 . l ( j ) 	declares 	t h a t 	c o n f i d e n t i a l 	employees 	a r e 	not
to be considered public school employees for the purpose of employer-employee
relations under the EERA.
8r.os Rios Community College District (6/9/77) EERB Decision No. 18, at 21.
9See Sierra Sands Unified School District (10/14/76) EERB Decision No. 	2,
at 2-3.
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and other testimony relating to their level of involvement convinces us that
principals' secretaries have 	sufficient 	involvement with confidential
matters 	to justify 	their 	designation as 	confidential 	employees.
In 	Sierra 	Sands 	Unified School District10 the 	Board proceeded
under 	the assumption 	that 	the 	employer 	should be 	allowed a 	"small
nucleus" of confidential 	employees 	so 	that 	an orderly and 	equitable
progress 	could be 	achieved 	in 	the 	development 	of 	employer-employee
relations.11 In addition to 	the nine principals' 	secretaries,
there 	are 	five other positions 	classified as 	confidential 	in District
superintendent's 	secretary, 	secretaries 	to 	the assistant 	superinten-
dents 	for 	instruction and 	for business 	services, 	and 	the 	secretaries
to 	the 	directors 	of certificated and classified personnel. 	This
total 	of 	14 	confidential 	employees 	represents 	4.5 	percent 	of 	the
total 	classified 	employees 	in District 	and 	12.8 	percent 	of the
employees in the clerical, 	technical, 	and business 	services unit,,
CSEA contends 	that 	this 	violates 	the 	"small 	nucleus" 	principle
and 	that 	to 	allow districts 	to 	so 	design 	their negotiation process
would 	circumvent 	the 	clear 	intent 	of 	the EERA.
Confidential 	employees 	typically become 	classified as 	such
because 	they are 	exposed 	to 	confidential matters 	in 	the normal
course of working with their 	immediate 	supervisor. 	In order 	to
remove principals' 	secretaries 	from the 	confidential 	category 	it
would be necessary 	for 	this 	Board 	either 	to 	require 	the 	principals
to perform their own secretarial 	services 	(e.g., 	typing, 	filing,
dictation, 	minutes) 	when engaged in confidential matters or to
remove 	the 	principals 	themselves 	from their 	current 	level 	of
participation 	in the negotiation and grievance process, 	a 	level
of participation 	that 	has 	been present 	since 	enactment 	of 	the EERA.
Since nothing in the record warrants 	either action, 	we 	find 	that
secretaries 	to 	the principals 	are confidential 	employees.
10 (10/14/76) 	EERB Decision No.2.
11Id. 	at 	2.
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Lead 	Custodians
FACTS
At each of District's 	schools 	there 	is one 	school operations
foreman, 	one lead custodian, 	and four custodians. 	The lead custodians
are responsible for the direct 	supervision of the 	four custodians 	in
their crew. 	During the summer months 	and vacations when school 	is
not 	in session, 	all custodians work the same day shift and the opera-
tions foreman, when available, 	supervises 	the entire crew. 	As often
occurs, 	however, 	the operations 	foreman is not available because he
is 	involved in special tasks, or is on vacation or ill, 	and the lead
custodian must direct 	the custodians' work. 	During the regular
school year the operations 	foreman works 	the day shift and the lead
custodian and crew work the night shift. 	There is 	a half hour over-
lap 	in shifts 	and during 	this 	overlap period 	the operations 	foreman
may relay 	information 	to 	the 	lead custodian concerning 	special
arrangements 	for the evening. 	The operations 	foreman does not,
however, 	become 	involved in the direct 	supervision of the custodians
and the lead custodian is 	the only person available 	for direct
supervision.
The lead custodian cannot 	directly suspend, 	lay off, 	transfer,
or hire custodians. 	Lead custodians report directly to 	the school
operation foreman. 	In some schools 	lead custodians 	can take overtime
themselves or assign it to others, 	whereas in other schools 	the
operations 	foreman must be consulted before overtime 	is 	assigned.
The 	lead 	custodians 	assign work and establish priorities 	for 	its
completion. 	Once the work assignments have been made at 	the
beginning of 	the year 	further direction of 	the work 	tends 	to become
routine unless 	there are special events or circumstances, 	in which
case it 	is 	the 	lead custodian's responsibility to adjust 	the work
schedules 	and reassign people 	accordingly.
Lead custodians receive a seven percent pay differential and,
depending upon the school, 	may also have a reduction in the amount
of work 	they are responsible 	for 	in addition 	to 	their 	supervisory
chores. 	The 	lead custodian and operations 	foreman are not allowed
to 	schedule 	simultaneous vacations. 	If a teacher complains about
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the way a room 	was cleaned the complaint 	filters 	down 	through the
principal, 	operations foreman, 	and lead custodian, who is responsible
for discussing the problem with the 	custodian and making 	certain that
improvements are made. 	The lead custodian is responsible for dis-
ciplining employees; 	he has the authority to require a person to
correct unsatisfactory work and determine overtime assignments. 	The
lead custodian reassigns work schedules 	to accommodate changes 	in.
adult education classes; 	it is the lead custodian who 	is con-
tacted 	when class 	schedules 	are changed. 	New custodians 	are
trained and assigned to work areas 	by lead custodians. 	Although a
custodian who will be absent due to 	illness 	is 	instructed to con-
tact 	the district maintenance superintendent 	so 	that a replacement
may be 	sent, 	lead custodians may 	independently allow a custodian
to 	leave work early or 	to report 	late 	for valid personal 	reasons
and are responsible for reporting custodians who arrive late for work.
Entry-level 	custodians 	are hired almost 	exclusively from a
substitute custodian list and it 	is 	the principal who has 	the
final 	responsibility for hiring. 	Before 	these new permanent
custodians are hired, however, 	it is the practice to have several
of the substitute custodians work a shift at the school, 	following
which the 	lead custodian will make an evaluation of 	the 	individual
performances and then make a recommendation as 	to which person
should be hired. 	In one 	case 	the principal 	relied exclusively on
the lead custodian's recommendation to hire a replacement, 	not
interviewing 	the custodian personally. 	In another 	case 	the lead
custodian participated in the 	interview process, 	together with
the principal and operations 	foreman. 	In all 	cases 	the recommenua-
tion received from the 	lead custodians 	is 	given great weight.
District has 	a policy of evaluating 	its 	custodians 	on an annual
basis 	(bi-annual for probationary employees).. 	Three people
participate 	in 	this 	evaluation: 	the 	lead custodian and operations
foreman, 	who each fill out an evaluation form, 	and the school
principal, 	who prepares a composite evaluation relying 	largely on
the two other evaluations. 	All three forms are sent to District.
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The 	evaluations 	of 	the 	lead 	custodian are 	given 	considerable weight
by 	the 	principals. 	This 	is 	because 	the 	lead custodian has 	an
opportunity 	to make 	closer 	daily 	observations 	than 	the 	operations
foreman or 	principal. 	Such 	lead 	custodian 	evaluations 	affect 	a
custodian's 	retention 	or 	promotion and have been used as 	a basis 	for
the 	termination of 	incompetent 	employees. 	When 	the 	evaluation 	form
indicates 	"needs 	improvement" 	in a given category 	it 	is 	the 	lead
custodian's 	responsibility 	to 	discuss 	the 	evaluation with 	the 	employee,
to 	formulate a plan for improvement and, 	in serious 	cases, 	to
participate 	in joint 	conferences with the principal, 	operations
foreman, 	and the errant custodian.
Finally, 	we note 	that 	on at 	least one occasion an 	employee
organization has 	filed 	a 	grievance 	regarding 	a 	lead 	custodian's
evaluation 	of a 	custodian. 	The 	lead 	custodian has 	no 	authority 	to
adjust 	such 	formal 	grievances 	and 	in 	the 	particular matter 	referred
to, 	reevaluation 	took place pursuant 	to 	normal 	District policy but
after 	the 	employee 	organization had 	talked 	to 	an 	assistant
superintendent concerning 	the matter.
DISCUSSION
A 	supervisory 	employee 	is:
any employee, 	regardless 	of job 	description,
having 	authority 	in 	the 	interest 	of 	the
employer to hire, 	transfer, 	suspend, 	lay
off, recall, promote, discharge, assign,
reward, 	or discipline other employees, 	or
the responsibility 	to 	assign work 	to 	and
direct 	them, 	or to 	adjust 	their grievances,
or 	effectively recommend 	such action, 	if,
in 	connection with 	the 	foregoing 	functions,
the 	exercise of 	such authority is not 	of a
merely routine or 	clerical nature, 	but
requires the use of independent judgment.12
It is clear 	that 	the 	lead 	custodians 	here 	regularly perform several
of 	the enumerated functions. 	They 	effectively recommend 	the hire,
promotion 	and 	discipline of 	employees. 	They 	independently 	direct
employees 	in the performance of 	their work, alter work assignments,
12Sec. 	3540.l(m).
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and require corrections of 	faulty 	work to be made. 	The 	school
operations 	foremen also appear to have 	the authority to perform
many of these 	functions but 	they are frequently 	involved in other
chores, 	absent, 	or working a different shift and are unavailable
13
to 	exercise their 	supervisory authority. 	Thus, 	the 	status 	of
school operations 	foremen does not preclude a 	finding of supervisory
status as 	to lead custodians, 	who have substantial daily contact
and 	interaction with the 	custodians.
The Board has 	previously observed 	that 	in 	construing 	the
statutory definition of supervisor, 	recognition must be given to 	the
basic reality that 	in public 	school 	districts 	final 	decisions 	regard-
ing hiring, 	discipline, 	and salaries are traditionally reserved to
persons 	far removed from the 	employee's 	immediate 	supervision.14
Thus, 	the ability to 	indirectly but effectively effectuate 	these
changes 	in employment 	status 	is 	accorded great weight 	in the public
sector. 	In this same vein, 	the EERA directs us 	to find that an
employee 	is a supervisor if he or she has 	the authority to 	effectively
recommend the promotion, 	discharge, 	or hiring of other employees.
It 	is 	clear 	that District's 	lead custodians have 	such authority.
Principals 	assign considerable weight 	to 	the opinions 	expressed
by lead custodians 	in the annual 	evaluation of other 	employees
and 	in the 	evaluations 	and recommendations 	that 	accompany the
13
These facts alone, 	of course, 	do not preclude a finding of
supervisory status. 	Cf. 	San Diego Unified School District 	(2/18/77)
EERB Decision No. 	8 and Sweetwater Union High School District 	(11/23/76)
EERB Decision No. 	4. 	In San Diego 	and Sweetwater we held that physical
presence was not a necessary prerequisite 	to a 	finding of supervisory
status. 	The building 	services 	supervisors and head custodians 	in
those cases were 	found to be 	statutory supervisors 	despite 	their
presence for only a brief part of the custodians' 	shift because
there was 	an effective 	communications 	system whereby daily direction
could be given to 	the custodians and 	the exercise of supervisory
authority was 	complete. 	We do not at this 	time express 	an opinion
as 	to 	the possible 	supervisory or management 	status of district's
school operations 	foremen.
14Sweetwater Union High School District 	(11/23/76) 	EERB
Decision No. 4, at 13.
15Se e sec. 3540.l(m).
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hiring 	of 	new permanent 	custodians. 	In 	several 	instances 	principa l s
have 	acted, 	either 	favorably 	to 	hire 	or 	unfavorably 	to 	discipline
or 	fire, 	on 	the 	basis 	of 	the 	evaluations 	by 	lead 	custodians .
It 	would be 	difficu l t 	to 	find 	stronger 	indicia 	of 	supervisory
status 	than 	the 	ability 	to 	direct l y 	affect 	another ' s 	very 	employment
status. 	We note also 	that, 	in 	apparent 	recognition of 	the 	real
importance 	assigned 	to 	a 	l ead 	custodian's 	employee 	evaluation, 	an
emp l oyee 	organization 	has 	filed 	a 	grievance 	regarding what 	it
considered 	to 	be 	an 	unfair l y 	critical 	eval uation.
SE IU places 	heavy emphasis 	upon 	the 	fact 	that 	there 	would be
a 	supervisory 	ratio 	of 	one 	supervisor 	to 	two 	employees 	(one 	school
operations 	foreman 	and one 	l ead 	custodian 	for 	every 	four 	custodians)
if 	lead 	custodians 	are 	classified 	as 	supervisors. 	Their 	argument
is 	not 	persuasive. 	We 	rely upon 	supervisory 	functions, 	not 	ratios,
in making 	our 	determination 	and 	the 	record 	demonstrates 	that 	l ead
custodians 	possess 	several 	indicia 	of 	supervisory 	status. 	Accordingl y,
we 	find 	them 	to 	be 	supervisors 	within 	the 	meaning 	of 	the 	EERA.
ORDER
The 	Pub l ic 	Employment 	Relations 	Board 	orders 	that :
(1) 	The 	motion 	to 	dismiss 	the 	exceptions 	fi l ed by 	Ca l ifornia
School 	Employees Association, 	Chapter 	266 	is 	dismissed.
(2) 	The 	position of 	principa l 's 	secretary 	and 	that 	of 	secretary
to 	the 	director 	of 	the 	continuation 	school 	are 	confidential 	within
the 	meaning 	of 	Government 	Code 	section 	3540 . l (c).
(3) 	The 	position 	of 	l ead 	custodian 	is 	supervisory within 	the
meaning of 	Government 	Code 	section 	3540.l(m).
11 	Jeri l ou Cossack Twohey, 	Member	7 	Ha:ifi'Y Glijtk , Chaifperson
IRaymond J. 	Gonzales, 	dissenting 	in part :
I 	dissent 	from 	the 	majority ' s 	conclusion 	that 	the 	secretaries
to 	the 	school 	principals 	and 	to 	the 	director 	of 	the 	continuation
school 	are 	confidentia l 	employees.
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1
---------
The 	definition 	set 	forth 	in 	Government 	Code 	section 	3540.l(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.
There 	is 	some 	question on 	the 	facts 	of 	this 	case as 	to whether 	the
secretaries 	to 	the 	school 	principals 	and 	to 	the 	director 	of 	the
continuation school 	do, 	in the regular 	course of their 	duties, 	have
access 	to 	and possess 	information relating 	to 	the 	Campbell 	Union
High 	School 	District's 	employer-employee 	relations 	in both 	the 	areas
of negotiations 	and 	employee 	grievances.
However, 	putting aside a discussion of these facts, 	further
inquiry 	is 	necessary based on 	the 	fundamental 	principles 	established
in 	Sierra 	Sands 	Unified 	School 	District 	and Centinela Valley Union
High 	School 	District.2 In Sierra Sands, 	the 	Board 	stated 	its 	policy
that:
the 	employer 	should be 	allowed a 	small 	nucleus
of 	individuals who would assist 	the 	employer 	in
the 	development 	of 	the 	employer's 	positions 	for
the purpose of 	employer-employee relations.
In Centinela Valley, 	the Board further 	specified 	that:
the 	small nucleus 	concept 	contemplates 	that 	only
a 	small number of 	employees necessary 	to 	the
employer 	to 	do 	the 	staff work needed 	to 	develop
its 	positions 	shall be 	given 	access 	to 	confidential
information. 	Employers 	cannot unnecessarily
distribute 	confidential 	information 	to 	large
numbers 	of 	employees 	and 	then 	claim them as
confidential.
The 	small nucleus 	concept 	is 	important because 	employees who
are 	designated 	confidential 	are 	denied representation 	rights 	under
1 (10/14/76) 	EERB Decision No. 	2.
2 (8/7/78) 	PERB Decision No. 	62.
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Educational 	Employment 	Relations 	Act 	section 	3540.l(j).3 Therefore,
an 	employer 	should not be 	allowed 	to 	design 	its negotiations 	and
grievance processing 	systems 	in 	a way 	that 	unnecessarily 	designates
a 	large number 	of 	employees 	as 	confidential.
In the present 	case, 	already 	stipulated as 	confidential 	are 	the
secretaries 	to 	the 	superintendent, 	assistant 	superintendent 	for
instruction, 	assistant 	superintendent 	for business 	services, 	director
of 	certificated personnel, 	and director of classified personnel. 	The
nine 	confidential 	employees 	the majority adds 	to 	these 	five 	gives 	the
District 	a total 	of 	14 confidential 	classified employees. 	This 	total
represents 	4.5 	percent 	of 	the 	total 	number 	of 	classified 	employees 	in
the District 	and 12.8 percent of 	the employees 	in 	the clerical,
technical 	and business 	services 	unit.
The majority 	decides 	that 	this 	large number 	of 	confidential
employees 	does not violate 	the 	small nucleus 	concept 	and 	decides 	that
the 	District need not 	change 	its negotiations 	system. 	Thus 	the
majority 	sacrifices 	the secretaries' 	right 	to representation under
the 	EERA 	to 	the 	employer's 	ability 	to 	design 	its negotiations 	system
in any way it desires. 	This 	is both unfair 	to 	the 	employees 	and a
mockery 	of 	good 	faith 	on 	the 	part of 	the 	employer.
I cannot 	support 	this. 	I believe 	this 	employer has 	involved more
employees 	than are necessary 	to 	do 	the 	staff work needed on
confidential matters. 	The number of confidential 	employees 	is 	so
excessive 	that 	the District 	should be 	required 	to 	revise 	its
negotiations 	system, 	as well 	as 	its 	grievance processing 	system if
necessary. 	I will not comment 	as 	to what 	changes will be required,
but 	leave 	such 	changes 	to 	the District's 	determination.
J Government 	Code 	section 3540.l(j) 	states:
"Public 	school 	employee" or 	"employee" means 	any
person 	employed by 	any public 	school 	employer
except persons 	elected by popular vote, 	persons
appointed by 	the 	Governor of 	this 	state,
management employees, 	and confidential 	employees.
(Emphasis 	added.)
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Additionally, 	I 	note 	that 	the 	dictionary definition of
"confidential " 	which 	is 	pertinent 	to 	this 	case 	reads 	"known only
11	to 	a 	limited 	few. 	4 	Under 	this 	definition, 	none 	of 	the 	secretaries
could be 	designated 	confidential. 	There 	are 	so many 	so-called
confidential 	employees 	that 	any 	information 	concerning 	negotiations
would 	likely be 	public 	knowledge .
The 	small 	nucleus 	concept 	in 	fact 	protects 	the 	District. 	The
smaller 	the 	number 	of 	employees 	who 	know 	confidential 	information,
the 	less 	likely 	it 	will 	be 	made 	public 	prematurely.
For 	the 	foregoing 	reasons, 	I 	find 	the 	secretaries 	to 	the
school 	principals 	and 	to 	the 	director 	of 	the 	continuation 	school
are 	not 	confidential 	employees .
Raymond 	J. 	Gonzales,Member
/' 	I 	- 	- 	~
4Webster I s Third New International Dictionary, Unabridged (1976) page 4 76 ,
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______________ .)
STATE OF CALIFORNIA
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
In the matter of:
CAMPBELL UNION HIGH SCHOOL DISTRICT,
Employer,
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CALIFORNIA SCHOOL EMPLOYEES ASSOCIA-
TION,
Employee Organization,
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SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 715,
Employee Organization.
CASE No. 	SF-UC-21
Appearances: 	Daniel C. Cassidy, Attorney (Paterson and Taggart) for
Campbell Union High School District; Harry Jaramillo for California School
Employees Association; John Tanner for Service Employees International
Union, Local 715.
Before Gerald A. Becker, Hearing Officer.
PROCEDURAL HISTORY
The parties hereto entered into a consent election agreement for
elections in two classified employee units: an operational support unit,
and a clerical, technical, and business services unit. 	The parties further
agreed that the 	issues of whether lead custodians are supervisory or in
the former unit, and whether principals' 	secretaries 	are confidential or
in the latter unit, would be determined in the instant unit clarification
proceeding pursuant to EERB Regulation 	33260.l
The elections were held on April 28, 1977. 	Service Employees
International Union, Local 715 	(hereinafter "SEIU") was certified as
exclusive representative of the operational support unit and California
School Employees Association, Chapter 266 (hereinafter "CSEA") was certified
l Calif. Admin. Code, Title 8, Section 33260.
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as exclusive representative of the clerical, technical and business
services unit
The hearing in this matter was held on May 2, 1977 at the
offices of the Campbell Union High School District (hereinafter "District")
in San Jose, California. 	At the start of the hearing, SEIU requested leave
to amend the petition for unit clarification to include the positions of
cafeteria manager and school operations; foreman, both of which the District
designated management. 	SEIU claimed that the positions are supervisory.
The requested amendment was denied on two grounds. 	First, under EERB Reso-
lution 6, 	there was no showing of a change in circumstances since the opera-
tions 	support unit was first determined. 	Second, even if the two positions
in fact 	are supervisory, 	they would not be included in the unit represented
by SEIU and thus the issues were inappropriate in a unit clarification pro-
ceeding under EERB Regulation 33260, supra.
The parties stipulated that the average daily attendance in the
District is approximately 14,000 in eight high schools and one continuation
high school.
ISSUES
1. 	Is the position of lead custodian supervisory within the
meaning of Government Code §3540.l(m) 	or included in the 	operational
support unit?
2. 	Are the positions of principal's secretary and secretary
to the director of the continuation school confidential within the mean-
ing of Government Code §3540.1(c) or included in the 	clerical,
technical and business service unit?
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DISCUSSION AND CONCLUSIONS OF LAW
A. 	Lead Custodian
There is one school operations foreman and one lead custodian
at each of the District's schools. 	The lead custodian has a night crew of
four custodians and is responsible for custodial activities at his campus
from 3:30 p.m. 	until midnight. 	The lead custodian reports directly to the
school operations foreman who works the day shift.
Government Code §3540.l(m) defines supervisory employee as:
"... any employee, regardless of job description, having
authority in the interest of the employer to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or the
responsibility to assign work to and direct them, or
to adjust their grievances, or effectively recommend
such action, if, in connection with the foregoing functions,
the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent
judgment."
This section is written in the disjunctive, therefore, 	the
possession of any one of the enumerated duties or the effective power to
recommend such . action, if requiring independent judgment, is sufficient
to make an employee a supervisor within the meaning of §3540.1(m).
The District argues that the lead custodians are supervisors
within the meaning of Government Code §3540.l(m). 	The lead custodians,
it contends, are actively involved in hiring new employees, periodically
complete performance evaluations of employees in their crew and direct and
2 Sweetwater Union High School District, EERB Decision No. 4, November 23,
1976; San Diego Unified School District, EERB Decision No. 8, February
8, 1977; Oakland Unified School District, EERB Decision No. 15, March
28, 1977; Los Rios Community College District, EERB Decision No. 18,
June 9, 1977.
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assign the work of the night custodians. SEIU claims that the lead
custodians are not supervisors.
For the reasons which follow, 	it is found that the lead
custodians are supervisors within the meaning of §3540.l(m).
The lead custodian directs and assigns the work of the night
custodial crew. 	Each school is divided into work areas. 	It is the lead
custodian's responsibility to assign each member of his crew a particular
work area. 	Whenever a special evening event occurs, 	the lead custodian
makes the necessary adjustments in work assignments. 	Although at times
he consults with the school operations foreman before making changes, 	this
is a matter of courtesy 	and not required. 	The lead custodian also has
the authority to decide at what time his crew will break for coffee and
dinner.
Whenever there are special activities on the weekend, 	the lead
custodian is responsible for assigning the overtime work. 	The lead custodian
has authority to determine which member of his crew will have the opportunity
to work overtime.
The lead custodian regularly inspects his crew members' work,
and has required them to correct improperly performed work. 	Furthermore,
if a teacher has a complaint about the cleaning of his classroom, 	the teacher
talks to the school principal. 	The principal relays the complaint to the
lead custodian who in turn talks to the assigned night custodian and sees
that the problem is corrected. 	"... The authority to regularly inspect
the work of others and to direct others to correct improperly performed
work constitutes responsible direction of other employees in the performance
of their work." 	Sweetwater, supra,at 15.
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The lead custodian makes effective recommendations to the
school principal regarding the hiring of new employees. 	The parties
stipulated that vacancies in the 	night custodian classification usually
are not filled from outside the District. 	Rather, the replacement is chosen
from a pool of substitute 	custodians. 	Several substitutes each work for a
few days. 	Then the lead custodian recommends to the principal which of
the substitutes should be hired on a full-time basis. 	The principal at
Del Mar High School stated that in the two previous years he had hired
two custodians from the substitute pool. 	He did not interview either
candidate, but instead relied on the recommendation of the lead custodian.
In both instances the individual hired was the one recommended by the lead
custodian.
The lead custodian prepares performance evaluations of 	the
night custodians on his crew. 	Two performance evaluations are completed
annually for each member of the night crew: one by the lead custodian, 	the
other by the school operations foreman. 	The lead custodian bases his eval-
uation on actual on-the-site observations of the employees in his crew.
The school operations foreman bases his evaluation on more limited observations
made during the summer months when all custodians work during the day.
The school principal receives the two evaluations. 	If there is a wide
discrepancy, 	the principal discusses the evaluations with both the foreman
and lead custodian, and tries to reach a consensus. 	In any event, 	the
principal then prepares and signs a composite evaluation summary based on
the two performance evaluations.
Performance evaluations are utilized by the District in making
personnel decisions that relate to the criteria set forth in §3540.l(m) .
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A poor evaluation may prevent an employee from obtaining an incremental
pay increase. 	Also, it is the District's policy not to grant permanent
status to probationary employees who receive unsatisfactory evaluations.
On at least one occasion, a probationary night custodian at Blackford
High School was terminated after a series of low performance evaluations
by the lead custodian. 	While the lead custodian's evaluations did not
specifically recommend dismissal of the employee, 	the principal relied
on the unsatisfactory evaluations by the lead custodian in deciding to
recommend the employee's termination. 	Thus, on at least one occasion, a
lead custodian, 	through the performance evaluation, had direct and subs-
tantial input in the discharge of an employee. 	The importance of the lead
custodian's evaluations in personnel decisions is further underlined by
the fact that SEIU filed a grievance to remove an unsatisfactory evaluation
from a night custodian's personnel file 	.
It is found that the position of lead custodian is supervisory
within the meaning of Government Code §3540.l(m). 	Through the performance
evaluation process he has substantial input in rewarding and firing employees.
He directs and assigns work to his crew. 	Finally, he makes effective re-
commendations on hiring new employees.
B. 	Principal's Secretary
Government Code §3540.l(c) defines a 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 Sierra Sands Unified School District, 3 at 2, the Board
stated that:
3 EERB Decision No. 2, October 4 , 1976.
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"(T)he employer should be allowed a small nucleus of
individuals who would assist the employer in the de-
velopment of the employer's positions for the purposes
of employer-employee relations. 	It 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."
In Fremont Unified School District, 4 at 11, the Board stated
that employer-employee relations at least include 	negotiations and the
processing of employee grievances.
In the present case, 	principals and their site management
teams5 are actively involved in the negotiations process. 	Although they
do not actually negotiate, principals participate in establishing negotiation
priorities and model negotiation outcomes 	(the desired end results of negotiations
from the District's point of view) 	and in recommending District negotiation
positions and strategies. 	The stated purpose of involving principals in the
negotiation process is to give the District input on the effect of possible
negotiation outcomes on the individual schools' operations.
This participation occurs in essentially three ways. 	First,
all employee organizations' proposals are sent to the individual schools
to be critiqued by the principal and his staff. 	Their respective recommen-
dations for the District's response are sent back to the District for for-
mulation of a consensus document which is again reviewed by the local schools
and eventually presented to the governing board for consideration as its
initial counter-proposal. 	Thereafter, once actual negotiations commence,
proposed District negotiations positions and strategies, 	along with the
cumulative inputs from other schools on these items, will be sent back and
4EERB Decision No. 6, December 16, 1976.
5 The management teams include the vice-principal, the director of activities,
two deans, and usually four counselors. 	All are designated management
by the District. 	In this opinion, "school principal" includes the director
of the continuation school.
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forth between the District and the schools for review and rewriting until
a consensus position is reached.
The second method of involving the principals is that they and
their staffs review model negotiation outcomes for the effect on their
schools' operations. 	Draft model outcomes are initially formulated by
the director of certificated personnel based on the organization's
initial proposal, the District's counterproposal, and what he perceives
to be the organization's negotiations objectives. 	The drafts then are
sent to the principals for review with their management staffs. 	Depending
upon the recommendations made at the school level, the draft model out-
comes are rewritten. 	Finally, principals and their staffs assist in
drafting contract language to implement the finalized model outcomes.
Third, essentially the same back and forth process will be
used "to establish the District's negotiations priorities and to determine
which model outcomes will be emphasized in negotiations. 	These priorities
are part of the District's strategy to effectuate its model outcomes.
Two school principals testified as to their secretaries'
involvement in these processes. 	The District and CSEA stipulated that,
if called, 	the testimony of three other principals would be substantially
the same.
The principal of Campbell High School testified that at his
school, his management team meets to discuss negotiations priorities,
review organization proposals and suggest counterproposals and
negotiations strategies. 	His school's input has been reflected in the
District's negotiations proposals or positions. 	The principal's secretary
sits in on all these meetings and takes minutes. 	The secretary is

responsible 	for all materials and correspondence passing between the
management 	team and the District. 	This includes receipt and 	dissemina-
tion to team members of negotiations materials received from the District
(including model outcomes, the cumulative negotiations strategies, posi-
tions and priorities and the input thereon from other schools) 	typing up the
principal's composite of the team members' 	input and sending it to the
District, 	and maintaining a confidential file for negotiation 	materials.
The principal of Westmont High School testified similarly.
He added that his secretary performed similar duties under the Winton Act 6
and that he estimated that 	these duties concerning negotiations 	take up
to approximately 25 percent of his secretary's time.
In addition, the two principals' secretaries are involved in
employee grievances. 	Both principals testified that their secretaries
are privy to strategy discussions involved in the processing of grievances
at the school level.
Thus, principals' secretaries assist the District in the development
of its negotiations positions. 	They also have access to negotiations
strategies, positions and priorities, as well as the District's model
negotiations outcomes, which if made public prematurely might jeopardize
the District's negotiations posture. 	See Sierra Sands Unified School
District, supra, Note 3, quoted above at p. 6 and 7. 	This especially is true
in the case of the model outcomes which if known to the exclusive repre-
sentative, would severely restrict the District's negotiating ability
at the table.
Since the principals' 	secretaries have access to confidential
information regarding employer-employee relations in the regular course
of their duties, 	the 	sole remaining question is whether the consequent
6Repealed, former Ed. Code §13080, et seq.
- 9 -
(

number of confidential employees is so large as to violate the principle
that only a "small nucleus" of confidential employees is permitted.
In addition to the nine principal's secretaries in issue in this
proceeding, five other positions, making a total of 14, are designated
confidential: 	the superintendent's secretary,and the secretaries to the
assistant superintendents for instruction and for business services, and
the secretaries to the directors of certificated and classified personnel.
Fourteen confidential positions constitute more than 12 percent of the
clerical, technical, 	and business services unit and approximately
4 percent of the total number of classified employees.
Although 14 is a fairly large number of confidential employees
for a district of this size, 	the hearing officer does not believe
that it is so excessive in this case as to require, in effect, a drastic
revision by the District of its negotiations procedures. 	Factoring the
input from individual schools in the District into the process surely is
an acceptable negotiations technique. 	Even if similar input could be
obtained without involving the principals' 	secretaries, the District's
present procedure certainly is reasonably calculated to accomplish this end.
Accordingly, since principals' secretaries have access to confidential
information, they are found to be confidential employees within the
meaning of Government Code §3540.l(c).
PROPOSED ORDER
It is the proposed decision that:
1. 	The position of lead custodian is supervisory within the
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meaning of Government Code §3540 . l(m);
2 . 	The positions . of principal ' s 	secretary and secretary to the
director of the continuation school are confidential within the meaning of
Government Code §3540.1 	(c).
The parties have seven calendar days 	from receipt of this
proposed decision in which to 	file 	exceptions 	in accordance with EERB
Regulation 	33380. 	If no party files 	timely exceptions, 	this proposed
decision will be a 	final order on October 20, 	1977 and a notice of decision
will 	issue 	from the Board .
Dated: 	O~ c_t _o_b_e_r ~ B~,~ 1_9_7_7
GERALD A . 	BECKER
Hearing Officer
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