Foothill-DeAnza Community College District (PERB 0079E)

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_________________ )
STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FOOTHILL-DeANZA COMMUNITY COLLEGE DISTRICT,
Employer,
and
SERVICE 	EMPLOYEES 	INTERNATIONAL UNION,
LOCAL 715,
Employee 	Organization,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES 	ASSOCIATION,
Employee 	Organization.
)
Case Nos. 	SF-R-20
SF-R-79
PERB Decision No. 	79
December 18, 	1978
Appearances: 	Donald H. 	Ewing, 	Director of Educational
Services, 	for 	Foothill-DeAnza Community College 	District;
Robert Bezemek, 	Attorney 	(Van Bourg, 	Allen, Weinberg & Rogers)
for 	Service Employees 	International Union, 	Local 	715;
Robert Boileau, 	Field Representative, 	for California School
Employees 	Association.
Before Gluck, 	Chairperson; 	Gonzales and Cossack Twohey, 	Members,
DECISION
In 	the 	initial 	Foothill-DeAnza Community College 	District
case,1 the Educational 	Employment Relations Board2
determined, 	despite 	the 	contentions 	of 	Service Employees
International Union, 	Local 715 	(hereafter SEIU), 	that the
1 (3/1/77) 	EERB Decision No. 	10.
2 On January 1, 	1978, 	the Educational 	Employment Relations
Board 	became 	the 	Public 	Employment 	Relations 	Board 	(hereafter
PERB or Board). 	Government Code section 3541, 	as amended by
Statutes 1977, 	chapter 	1159, 	section 7.

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positions of custodial 	foreman, 	construction foreman, 	and
grounds 	foreman 	were 	not 	supervisory 	and were 	specifically
included 	in 	a skilled 	crafts 	and 	trades 	unit. 	In 	this 	case,
SEIU 	is 	attempting 	to bring 	the 	same 	issue 	before 	the Board 	for
a 	second 	time. 	At 	the 	representation 	election 	in 	that 	unit,
SEIU 	challenged 	the 	ballots 	of 	four 	employees 	who occupy 	those
positions3 on 	the 	grounds 	that 	the positions were, 	in fact,
supervisory at 	the 	time 	of 	the 	election, 	notwithstanding 	the
Board's 	decision.4 After 	a 	hearing 	on 	the 	challenged 	ballots
in which 	testimony was 	taken on 	the 	supervisory 	issue, 	the
hearing 	officer 	concluded 	that 	SEIU 	could 	not 	relitigate 	the
status 	of 	these 	positions. 	SEIU has 	excepted 	to 	this
decision. 	The 	Board 	affirms 	the 	hearing 	officer's 	conclusion
and 	holds 	that 	employee 	organizations 	cannot 	use 	ballot
challenges 	to 	relitigate 	issues 	specifically 	decided 	in 	a
pre-election 	unit 	determination 	proceeding.
To 	allow 	relitigation 	in 	a case 	of 	this 	kind would 	permit
parties 	to delay 	certifications 	unreasonably, 	thereby depriving
employees 	of 	representation 	for 	meeting 	and 	negotiating.
Parties 	have 	the 	opportunity 	to 	litigate 	fully 	all 	issues
involving 	the 	status 	and 	unit 	placement 	of 	classifications 	at 	a
unit 	determination 	hearing 	before 	the 	election. 	This
job 	titles 	of 	these positions 	have 	been 	changed 	to
eliminate 	reference 	to gender. 	The 	new 	job 	titles 	are 	head
custodian, 	head carpenter, 	and head gardener.
4 The 	election was 	held on May 20, 	1977. 	The 	results
were: 	SEIU - 43, 	CSEA - 41, 	No Representation - 0, 	challenged
ballots 	- 	6. 	The 	challenged 	ballots 	are 	determinative 	of 	the
outcome, 	so no exclusive 	representative 	has been certified.

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opportunity 	is 	sufficient; 	they do not 	have the 	right 	to
litigate 	the 	same 	representation 	issues 	again 	by 	challenging
ballots. 	To 	allow this would make 	a mockery of 	the 	unit
determination 	hearing 	since 	no 	issue 	would 	be 	finally 	resolved
until 	after 	the 	election.
SEIU 	argues 	that 	the 	supervisory 	issue 	was 	not 	fully
litigated 	at 	the 	unit 	determination 	hearing, 	noting 	that 	the
Board 	acknowledged 	in 	its 	decision 	in 	that 	case 	that 	the 	record
was 	scant. 	This 	argument misses 	the point. 	An 	issue 	is 	fully
litigated, 	not when every relevant 	fact 	is 	revealed, 	but when
every party 	has 	had 	an opportunity 	to present 	its 	case. 	SEIU
was 	a 	party 	to 	the 	unit 	determination 	hearing 	and 	could 	have
presented more 	evidence 	on 	the 	supervisory 	status 	of 	these
positions. 	It 	cannot 	now 	take 	advantage of 	the 	lack of
evidence 	at 	that 	hearing 	to 	delay 	certification 	after 	an
election 	has 	been 	held.
SEIU 	also 	appears 	to 	argue 	that 	since 	the 	hearing 	officer
allowed 	a new 	record on 	the 	supervisory 	issue 	to be made, 	the
Board 	should 	not 	disregard 	that 	record 	in making 	its 	decision.
However, 	the Board's 	decision on the 	legal 	question of whether
the 	status 	of 	these 	positions 	can 	be 	relitigated makes 	the
factual 	record 	irrelevant. 	In future 	cases, 	no record will 	be
made 	since 	PERB 	agents 	will 	know 	that 	challenges 	to ballots 	of
employees 	whose 	positions 	were 	specifically 	included 	in 	the
unit 	in 	unit 	determination proceedings 	should 	be 	dismissed
without 	an 	additional 	hearing. 	However, 	a 	hearing might 	be
appropriate 	if, 	for 	example, 	the 	challenging party can show

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that 	crucial 	evidence 	exists 	which was 	unavailable 	at 	the 	first
hearing 	or 	that 	the 	duties 	of 	the 	classification 	have 	been
dramatically 	altered.
SEIU 	also wishes 	to 	reopen 	the 	record 	in 	this 	case 	to
introduce 	evidence 	taken 	at 	an 	unfair 	practice 	hearing 	on 	the
supervisory 	status 	of 	a particular 	employee who 	cast 	one of 	the
challenged 	ballots. 	The Board 	denies 	this 	request. 	However,
the 	Board 	notes 	that 	a 	decision 	in a representation case, 	which
resolves 	the 	supervisory 	status 	of 	particular 	classifications,
is 	not 	binding 	in 	an 	unfair 	practice 	case which may 	involve 	the
supervisory 	status 	of 	specific 	individuals. 	It 	is 	possible 	to
show 	that 	an 	individual 	exercises 	greater 	authority 	than
his/her 	classification 	would 	indicate.
Since 	no party 	has 	filed 	exceptions 	to 	the 	hearing
officer's 	findings 	as 	to 	two positions 	which were 	not 	at 	issue
in 	the 	original 	unit 	determination hearing, 	the Board affirms
his 	decision 	that 	the 	head 	electrician 	is 	a 	supervisory
employee 	and 	the 	construction 	inspector 	is 	properly placed 	in
the 	residual 	unit 	rather 	than 	the 	skilled 	crafts 	and 	trades
unit.
ORDER
Based 	on 	the 	foregoing 	decision 	and 	the 	entire 	record 	in
this 	case, 	the 	Public Employment Relations Board ORDERS 	that
the 	Regional 	Director 	open 	the 	ballots 	of 	Harold 	Hayes,

George 	Kammersgard, 	Anton Mlasko, 	and John Wiles, 	and 	certify
an 	exclusive 	representative 	for 	the 	skilled 	crafts 	and 	trades
unit 	of 	the 	Foothill-DeAnza Community College 	District 	or 	hold
a 	runoff 	election 	as 	appropriate.
~ 	: 	Raymond 	J. 	Gonzales, 	Member 	Gluck, 	Chairperson
/ 	f 	' 	I
Jerilou 	Cossack 	Twohey, 	Member (I
I 	(
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.____________ )
EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	BOARD
OF THE 	STATE 	OF 	CALIFORNIA
FOOTHILL-DeANZA 	COMMUNITY
COLLEGE DISTRICT,
Employer,
and
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 715,
Employee 	Organization,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Employee 	Organization.
Case Nos. 	SF-R-20
SF-R-79
PROPOSED DECISION 	ON
CHALLENGED 	BALLOTS
(12/2/77)
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Appearances: 	Donald H. 	Ewing, 	Director of Educational
Services, 	for Foothill-DeAnza Community 	College District;
Robert Boileau, 	Field Representative, 	for California School
Employees 	Association; 	Robert Bezemek, 	Attorney 	(Van Bourg,
Allen, 	Weinberg & Roger) 	for Service Employees 	International
Union, 	Local 	715.
Before 	Franklin 	Silver, 	Hearing Officer.
PROCEDURAL 	HISTORY 	AND 	ISSUES
In this 	case 	it 	is 	necessary 	to resolve 	challenges
to 	the ballots 	of 	six 	classified 	employees 	of the Foothill-
DeAnza 	Community 	College 	District 	(District). 	The 	ballots
were 	challenged 	during 	a 	representation 	election 	on 	May 	20,
1977 	for a 	skilled 	crafts 	and 	trades 	unit 	which had been" deter-
mined 	to 	be 	appropriate 	by 	the 	Educational 	Employment 	Relations
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Board 	(EERB) in its Decision No. 	10 	(March 1, 	1977).1
In that 	decision, 	the 	EERB rejected the 	contention of the
Service Employees 	International Union, 	Local 	715, 	AFL-CIO,
(SEIU):, that 	employees 	in the positions of custodial 	foreman,
construction 	foreman, 	and 	grounds 	foreman were 	supervisory,
and 	those 	positions 	were 	specifically 	included 	in 	the 	skilled
crafts 	and trades 	unit. 2
Pour 	of the 	employees 	who 	cast 	challenged ballots
occupy positions 	determined 	in 	the 	original 	unit 	determina-
tion proceeding not 	to 	be 	supervisory. 	These 	four 	employees
were 	challenged 	by 	SEIU 	on 	the 	grounds 	that 	they 	were 	super-
visors 	at 	the time 	of the 	election notwithstanding the EERB
decision. 	California 	School 	Employees 	Association 	(CSEA)
and 	the 	District 	contend 	that 	the 	EERB 	decision 	controls
and that 	the 	challenges 	should 	be 	disallowed.
Two 	of the 	employees 	whose 	ballots 	were 	challenged
occupy 	positions 	which 	either 	had 	not 	been 	created 	or 	were
not 	in 	issue 	at 	the time 	of the 	original 	unit 	determination
hearing. 	Both 	of 	these 	employees 	— 	the 	head 	electrician
and 	the 	construction 	inspector 	— 	were 	challenged 	by 	the
EERB 	agent 	conducting 	the 	election because 	their 	names 	did
1 The results 	of the elections were: 	SEIU - 	43, 	CSEA - 	4l,
No Representation - 	0, 	challenged ballots 	- 	6. 	Because the
challenged 	ballots 	are 	determinative 	of the 	outcome, 	no
exclusive 	representative 	has 	been 	certified.
2The 	job 	titles 	for these 	positions 	have 	been 	changed 	to
eliminate reference 	to gender. 	The 	new job 	titles 	are
head custodian, 	head carpenter, 	and head gardener.
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not 	appear 	on the 	voter, eligibility list. 	SEIU contends
that 	the 	head 	electrician 	is 	a 	supervisor, 	while 	CSEA and
the 	District 	contend 	that 	he 	occupies 	a parallel 	position
to 	the 	positions 	previously 	determined by 	the 	EERB 	to 	be
non-supervisory. 	SEIU contends 	that 	the 	construction
inspector 	properly belongs 	in 	the 	second 	unit 	determined
by 	the 	EERB 	in 	its 	decision 	— 	a 	unit 	defined 	as 	including
all 	classified 	employees 	not 	included 	in the 	skilled 	crafts
and trades 	unit. 	CSEA 	contends 	that 	the 	construction
inspector belongs 	in the 	skilled crafts 	and 	trades 	unit,
and the District's 	position 	is 	unclear.
Thus, the issues are:
1. 	May the 	supervisory 	status 	of the
head custodian, 	head carpenter, 	and
head 	gardeners 	be 	relitigated 	in 	a
hearing on challenged ballots, 	and,
if so, 	were those positions 	super-
visory 	on 	the 	day 	of the 	election?
2. 	Is 	the position 	of head 	electrician
supervisory?
3. 	Should 	the 	position 	of 	construction
inspector 	be 	included 	in 	the 	skilled
crafts 	and 	trades 	unit?
A. 	The positions 	previously 	determined not 	to 	be 	supervisory.
SEIU takes 	alternative 	positions 	with 	respect 	to
whether 	it 	is 	entitled to 	a 	new ruling on the 	three positions
previously determined not 	to be 	supervisory. 	First, 	it
argues 	that 	these 	employees 	were 	given additional 	supervisory
responsibilities 	during the 	period 	between 	the 	unit 	determina-
tion hearing on August 	26, 	1976 	and the 	election on May 20, 	1977
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Second, 	it 	argues 	that 	even if there were no additional
responsibilities 	given to these 	employees, 	if they were
in fact 	supervisors 	on the 	day 	of the 	election they must
be 	excluded from the 	unit. 	In 	support 	of the 	second
argument 	SEIU notes 	that 	EERB Decision No. 	10 	states 	that
there was 	little evidence 	introduced at 	the unit 	determina-
tion hearing upon which 	to 	determine whether the 	positions
were 	supervisory, 	and it 	is 	therefore argued that 	it 	is
proper to make 	a new determination 	on the more 	complete
record now available.3 It3 is concluded that SEIU may not through chal-
lenged ballots 	relitigate 	the 	supervisory 	status 	of the
four 	disputed positions 	under 	either 	of its 	theories.
It 	is 	quite apparent 	that 	to allow relitigation 	in a case
like 	this 	would 	create 	a means 	for parties 	to delay certi-
fications 	and 	impede meeting and 	negotiating. 	SEIU had 	a
full 	opportunity 	to present 	evidence 	at 	the unit 	determination
hearing and 	it 	cannot 	now claim that 	the EERB 	decision was
made on the basis 	of insufficient 	evidence. 	Furthermore,
the record 	of this 	case 	shows 	that 	SEIU made 	no 	effort 	to
bring 	any 	evidence 	of 	changed 	circumstances 	to 	the 	attention
3SEIU was 	allowed to 	make a record at 	the hearing on 	chal-
lenged ballots 	on the job 	duties 	of these three positions.
Because 	of the 	conclusions 	reached herein 	it 	is 	not
necessary to 	make 	findings 	of 	fact 	based upon that 	evidence,
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of the EERB prior to the 	election. 	In such circumstances,
it 	is 	inappropriate to allow a party to relitigate unit
issues by means 	of challenged ballots. 	Rockwell Mfg. 	Co.,
122 NLRB 798, 	43 LRRM 1202 	(1958); 	Stokely-Bordo, 	121 NLRB 937,
42 LRRM 1511 	(1958). 	Cf. 	NLRB v. 	Howard Johnson Co., 	398 P.2d
435, 68 LRRM 2 895 (3d Cir., 1968).
SEIU argues 	that 	there 	is 	federal precedent
indicating that 	supervisory 	issues 	determined 	in a 	prior
representation 	case may be 	relitigated 	in an unfair 	labor
practice proceeding. 	Eidal International Corp., 	224 NLRB
No. 	128, 	93 LRRM 1230 	(1976); 	Clothing Workers v. NLRB,
365 P.2d 898, 	62 LRRM 2431 	(D.C.Cir., 	1966). 	These cases,
however, 	recognize the normal rule which precludes reliti-
gation of an 	issue determined 	in a representation 	hearing 	in a
"related" 	unfair labor practice hearing. 	Thus, 	a party may
not make 	a new record on unit issues when an 	employer refuses
to bargain in order to 	challenge 	the validity 	of a prior
unit 	determination. 	As the cited cases establish, 	however,
the NLRB will at 	times 	reconsider unit 	issues 	in connection
with a totally unrelated unfair 	labor practice 	charge, 	such
as 	unlawful 	interference with protected 	employee 	rights.
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Since 	the issue in the present 	case, 	however, 	is 	the 	validity
of the 	original 	unit 	determination, 	the 	cases 	cited by 	SEIU
do not 	support 	its 	position.
Since 	the 	positions 	previously 	determined 	to 	be
supervisory may not 	be relitigated, 	the 	ballots 	of the 	four
employees 	occupying 	those 	positions 	— 	Anton 	Mlasko,4
George 	Kammersgard, 	Harold 	Hayes, 	and John 	Wiles 	— 	should
be 	opened 	and 	counted.
B. 	The head 	electrician.
In the 	fall 	of 	1976 	the 	District 	created 	the
position 	of 	head 	electrician 	and 	hired 	Derek Werrett 	to
fill the position. 	Mr. 	Werrett reports to the district
maintenance 	supervisor, 	George 	Parkhurst, 	who 	in turn reports
to the manager of plant 	services, 	Mr. 	Galipaux. 	The head
electrician 	position 	was 	created 	in part 	to relieve
Mr. 	Parkhurst 	of many 	of his 	responsibilities 	which resulted
from 	his 	being 	the 	only 	person 	with a 	sufficient 	technical
background 	to 	fully 	evaluate 	the 	various 	electrical 	systems
in 	district 	facilities 	for 	purposes 	of preventive 	maintenance
and 	to 	respond 	to 	frequent 	emergency 	situations. 	Because
4 There 	was 	testimony 	that 	Anton Mlasko 	had retired 	shortly
before the 	hearing on challenged ballots. 	It 	is 	not
contended 	that 	Mr. 	Mlasko was 	not 	employed 	on the 	day 	of
the 	election, 	and therefore his 	ballot 	is 	valid.
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emergency 	situations 	often 	occur 	outside 	of regular 	working
hours 	and it was 	contemplated 	that 	response 	to 	these
situations 	would be 	a major 	part 	of 	the 	job 	duties 	of the
head 	electrician, 	the position was 	created 	as 	being exempt
from receiving 	overtime 	and 	the 	salary 	was 	adjusted 	to
compensate 	for 	the irregular hours. 	There are no 	exempt
positions 	in the 	skilled 	trades 	and 	crafts 	unit 	found 	by
the EERB.
The District 	employs 	six 	electricians. 	Prior
to 	the 	time 	that 	Mr. 	Werrett 	was 	hired as head 	electrician,
all 	electrical 	work was 	performed 	under Mr. 	Parkhurst's
supervision. 	At that time, 	the leadman,. Fred Ferris,
cleared such matters as 	overtime, 	personal 	leaves, 	and job
assignments 	through Mr. 	Parkhurst. 	Because 	of those respon-
sibilities, 	Mr. 	Ferris did not 	spend all of his 	time working
with tools. 	After Mr. 	Werrett was hired, 	Mr. 	Ferris went
back to working with tools 	full-time, 	and Mr. 	Parkhurst
was 	relieved 	of the 	responsibility 	for 	supervising 	the 	day-
to-day 	operations 	of the 	electrical department. 	Werrett 	now
establishes 	the 	priorities 	in terms 	of the jobs 	that 	need
to 	be 	done 	and then 	leaves 	it 	to 	Ferris 	to make 	individual
job 	assignments 	among members 	of the 	crew. 	Werrett 	does
not 	work with the 	crew, 	and 	the 	one 	electrician who testified,
James 	Ayers, 	has never 	seen Werrett work with tools. 	Werrett,
however, 	does 	check the 	job 	site at 	least 	once a day 	to 	see
how the 	work 	is 	coming along.
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Mr. 	Werrett has a desk in the electrical shop.
He makes 	first 	level evaluations 	of the electricians, 	and
the evaluations 	are then approved 	at 	three 	successively
higher levels 	of management.
The 	job 	description 	for 	the 	head 	electrician
states 	that 	he has 	the 	responsibility 	under 	the 	general
direction of the maintenance 	supervisor 	"to plan, 	organize,
and 	supervise 	all 	related 	electrical 	work 	in the District
both maintenance 	and 	construction." 	In addition he
"(a)ssigns 	approved work 	orders 	for 	construction 	and
maintenance 	to appropriate personnel 	and 	inspects 	completed
work." 	Although job 	descriptions alone have not 	been
considered by the 	EERB as 	sufficient 	to 	establish 	supervisory
status,5 in this 	case the description supports 	the testimony
at 	the hearing with regard to Mr. 	Werrett's 	supervisory
responsibilities.
On the basis of the foregoing evidence, 	it 	is
concluded that 	the 	head 	electrician 	exercises 	independent
judgment 	in the assignment 	of work and 	the 	day-to-day 	super-
vision of the electrical department. 	Except 	for his 	response
to 	emergency situations, 	he does not work with tools. 	He plans
and assigns 	jobs 	related to preventive maintenance, 	and his
assignments 	are 	carried 	out 	through a 	leadman in 	charge 	of the
crew. 	For these reasons, 	Derek Werrett 	is a supervisor, 	and
his ballot 	should be 	disallowed.
5Foothill-DeAnza 	Community College District, 	supra, 	EERB
Decision No. 	10 at page 6; 	San Rafael City Schools, 	EERB
Decision No. 	32 	(October 3, 	1977) 	at page 7.
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C. 	The 	construction 	inspector.
Leo 	Holm was 	hired 	as 	construction 	inspector
in August, 	1976. 	The primary 	function 	of that 	position
is 	to 	satisfy 	the 	California 	Office 	of Architecture 	and
Construction 	(OAC) 	that 	the requirements 	of the Field Act
have 	been met 	in 	construction 	projects 	undertaken by 	the
District. 	Although he 	reports 	to the 	staff architect-
planner, 	the 	inspector works 	primarily with 	consulting
architects 	on 	construction projects 	which 	are 	contracted
out. 	There 	were 	three 	such 	contracts 	being performed at
the time 	of the 	hearing. 	The 	inspector has 	the 	responsi-
bility 	of determining whether the architects' 	specifications
are being met. 	In this 	connection, 	he makes 	daily 	inspec-
tions 	and 	reports 	on the progress being made. 	In addition,
he 	is 	responsible 	to 	the 	OAC 	for testing concrete which 	is
poured 	and 	for making monthly 	reports 	for 	purposes 	of
compliance 	with 	the 	Field 	Act.
Small 	projects 	which 	do 	not 	require 	an 	outside
contract 	are 	performed 	by 	the 	District's 	own building 	trades
employees, 	and 	inspection 	is 	performed by the manager 	of
plant 	services, 	Mr. 	Galipaux. 	Since the construction
inspector 	has 	no 	responsibility 	with respect 	to 	these
internal 	projects, 	he has 	no work-related contact with
employees 	in the 	skilled 	crafts 	and trades 	unit. 	The 	con-
struction 	inspector 	reports 	to 	the 	architect-planner who
in turn 	reports 	to the 	director 	of business 	services.
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The 	District's 	building 	trades 	employees 	are responsible
to Mr. 	Galipaux who 	in turn is 	also responsible to the
director 	of business 	services. 	The 	staff architect-planner
is 	considered to be 	a member 	of the 	District's 	"residual"
unit, 	which 	includes 	all 	employees 	of the 	District 	who 	are
not 	part 	of the 	skilled 	crafts 	and 	trades 	unit 	and are 	not
management, 	confidential, 	or supervisory employees.6
To perform his 	job, 	the construction 	inspector
must 	be 	approved by 	the 	OAC 	and must 	have 	the 	necessary
technical 	competence. 	He 	is 	salaried 	and 	is 	exempt 	from
receiving overtime. 	In general, 	exempt 	positions 	in the
District 	fall 	into the 	"special 	services" 	category and
include management positions, 	programmers, 	executive
secretaries, 	the architect-planner, 	and the 	construction
inspector.
From the 	above, 	it 	is 	concluded that 	the con-
struction 	inspector 	has 	no 	work-related 	contacts 	with
members 	of the 	skilled 	crafts 	and 	trades 	unit 	and has
similar 	working 	conditions 	to 	certain 	employees 	within 	the
"residual" unit. 	For these reasons, 	he more properly
belongs 	in the 	"residual" 	unit, 	and his ballot 	should be
disallowed.
6 The 	"residual" 	unit 	was 	formally 	designated by 	the 	EERB 	in
its 	unit 	determination 	decision as 	"unit 	B."
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PROPOSED 	DECISION
It 	is 	the 	proposed 	decision that :
1. 	The 	non-supervisory 	status 	of 	the head
custodian, 	the 	head 	carpenter, 	and the head gardeners 	was
previously 	determined by 	the 	EERB 	and may not 	be 	re-litigated
by means 	of 	challenged ballots.
2 . 	The head 	electrician 	is 	a 	supervisor within
the 	meaning of 	Government 	Code 	Section 	3540 . lCm) .
3 . 	The 	construction 	inspector 	is 	a 	member of
unit 	Bas 	previously 	determined by 	the 	EERB .
4. 	The 	following 	employees 	casting 	challenged
ballots 	are 	employees 	within 	the 	skilled 	crafts 	and 	trades
unit 	eligible 	to 	vote 	and 	their ballots 	shall 	be 	counted :
Anton Mlasko, 	George 	Kammersgard, 	Harold Hayes, 	and
John Wiles .
The 	parties 	have 	seven 	(:n 	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 	become
final 	on December 	16, 	1977, 	and a 	Notice 	of Decision will
issue 	fro m the 	Board . 	At 	that 	ti me 	the 	Regional 	Director
is 	further 	instructed 	to 	open 	each of 	the 	challenged ballots
consistent 	with this 	decision, 	and 	to 	certify 	an 	exclusive
representative 	of 	the 	employees 	in 	the 	skilled 	crafts 	and
trades 	unit 	or 	to 	conduct 	a 	runoff 	election as 	appropriate .
Dated: 	December 2, 	1977
Franklin 	Silver, 	Hearing Officer
( -- l.(?' ~ (4,,	; 	b
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