Jefferson Union High School District * * * VACATED by Order of the Board dated April 13, 1979 (PERB 0083E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFERSON UNION HIGH SCHOOL DISTRICT,
Employer, Case No. SF-R-573
and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 856, Case No. SF-R-573
83
Employee Organization. April 13, 1979
The employee organization's petition for recognition and the
employer's statement of exceptions to the hearing officer's
proposed decision having been withdrawn, and the Board being in
accord, PERB Decision No. 83 is hereby vacated.
Public Employment Relations Board
by
J. STEPHEN BARBER
Executive Assistant to the Board
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELAT I ONS 	BOARD
JEFFERSON UNION 	HIGH 	SCHOOL 	DISTRICT,
Employer,
and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 	856,
Employee 	Organization.
)
)
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)
Case No. 	SF-R-573
Case No . SF-R-573
19lillPb¥~r~IlN~o.	PERE Decision No. 	83
April 	13 , 	1979
)
> )
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---------------------
The 	employee 	organization's 	petition 	for 	recognition 	and 	the
employer's 	statement 	of 	exceptions 	to 	the 	hearing 	officer's
proposed 	decision having been withdrawn, 	and 	the 	Board being 	in
accord, 	PERB Decision No . 	83 	is 	hereby vacated.
Public 	Employment 	Relations 	Board
by
j
J. 	STEPHEN BARBER
Executive Assistant 	to 	the 	Board

VACATED by Order of the Board dated April 13, 1979
STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
JEFFERSON UNION HIGH SCHOOL 	DISTRICT,
Employer,
and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 	856,
Employee 	Organization.
)
)
) 	Case 	No. 	SF-R-573
PERB 	Decision 	No. 83
January 4, 	1979
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Appearances; 	Joseph H. 	Clasgens 	III 	(Deputy District Attorney
of San Mateo) 	for 	Jefferson Union High School District; 	and
Kenneth N. 	Silbert, Attorney 	(Brundage, Beeson, 	Tayer and
Kovach) 	for 	Freight Checkers, 	Clerical Employees and Helpers,
Local 	856, 	Bay Area Professional 	and Vocational Employees
Division, 	International Brotherhood of Teamsters.
Before 	Gluck, 	Chairperson; 	Cossack Twohey and Gonzales, 	Members
DECISION
Jefferson 	Union 	High 	School 	District 	(hereafter 	District)
excepts 	from 	the 	attached 	hearing 	officer's 	proposed 	decision
that 	five 	District 	building 	and 	grounds 	supervisors 	are
"supervisors" 	within 	the meaning of 	section 3540.l(m) 	of 	the
Educational 	Employment 	Relations 	Act 	(hereafter 	EERA or 	the
Act),1 and 	that 	they constitute 	an 	appropriate 	bargaining
unit 	for 	representation by Freight 	Checkers, 	Clerical Employees
and Helpers, 	Local 856, 	Bay Area Professional and Vocational
Employees 	Division, 	International 	Brotherhood 	of 	Teamsters
(hereafter Local 856).
1 The 	Educational Employment 	Relations Act 	is 	codified 	at
Government Code 	section 	3540 	et 	seq. 	All 	references 	are 	to 	the
Government 	Code 	unless 	otherwise 	specified.
)
_______ )
1

The 	Public 	Employment 	Relations 	Board 	(hereafter 	the 	Board)
adopts 	the 	hearing officer's 	findings of 	fact and 	law, 	and
affirms 	that 	decision 	insofar 	as 	it 	holds 	that 	building 	and
grounds 	supervisors 	meet 	the 	criteria 	of 	section 	3540.1(m)2
and 	are 	supervisors 	for 	the purposes of 	the Act. 	We 	find 	that
the 	record 	is 	inadequate 	to 	support 	the 	hearing officer's
determination 	that 	they 	constitute 	an 	appropriate 	negotiating
unit 	under 	section 	3545(b)(2),3 however. 	Accordingly, 	we
remand 	this 	case 	for 	further 	testimony on 	the 	issue 	of whether
certain 	other 	unrepresented 	employees 	that 	have 	been 	stipulated
to 	be management 	employees4 are 	actually 	section 	3540.l(m)
supervisors.
2Sec. 	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.
3Sec. 3545(b)(2) provides:
A 	negotiating 	unit 	of 	supervisory 	employees
shall not be 	appropriate 	unless 	it 	includes
all 	supervisory employees 	employed 	by 	the
district 	and 	shall 	not 	be 	represented 	by 	the
same 	employee 	organization 	as 	employees 	whom
the 	supervisory 	employees 	supervise.
4Sec. 	3540.l(g) 	defines 	"management employee" 	as:
...any employee 	in 	a position 	having
significant 	responsibilities 	for 	formulating
district 	policies 	or 	administering district
programs 	. . . .
2

FACTS
The 	District 	is 	comprised 	of 	five 	high 	schools 	and 	one
continuation high 	school. 	With 	the 	exception of 	five 	building
and 	grounds 	supervisors, 	and 	ten5 	positions 	stipulated 	to be
confidential6 or management employees, 	all District
classified 	employees 	are 	represented 	by AFSCME 	(blue 	collar 	and
cafeteria) 	or CSEA 	(clericals).
Four 	employees 	were 	stipulated confidential, 	including
three 	secretaries 	who have 	access 	to 	all 	District 	negotiation
proposals 	and 	supporting 	materials 	and 	are 	responsible 	for
preparing materials 	for 	negotiations. 	The district 	accountant,
who 	is 	regularly 	consulted 	by District 	negotiators 	regarding
the 	budgetary 	impact of proposals, 	is 	similarly aware of
District 	negotiation proposals 	before 	they 	are 	made.
5 The 	hearing 	officer's 	recommended 	decision 	erroneously
states 	that 	11 positions 	were 	stipulated 	confidential or
management. 	Those 	in 	fact covered 	by 	stipulation are:
Confidential: 	secretary 	to 	the
superintendent, 	secretary 	to 	the deputy
superintendent 	for personnel, 	secretary 	to
the 	assistant 	superintendent 	for 	business,
district 	accountant;
Management: 	deputy 	superintendent 	for
personnel, 	assistant 	superintendent 	for
business, 	assistant superintendent for
educational 	services, 	director 	of pupil
personnel 	services, 	district 	supervisor of
buildings 	and grounds, 	director of food
service.
6Sec. 	3540.l(c) 	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.
33

Six 	positions were 	stipulated 	as management 	employees. 	The
deputy 	superintendent 	for 	personnel, 	second 	in 	the
administrative hierarchy, 	is 	the District's chief negotiator.
S/he 	has 	the 	authority 	to approve, 	modify or 	reject personnel
policy 	changes. 	The 	assistant 	superintendent 	for 	educational
services, 	who makes 	all policy decisions 	on curriculum changes,
also participates 	in negotiations. 	The 	assistant
superintendent 	for 	business, 	fourth 	in 	the administrative
hierarchy, 	participates 	in negotiations 	and District board
meetings. 	The person 	in 	this position 	is 	authorized 	to modify
recommended 	budget policy 	that 	affects 	the 	District's 	"physical
plan" 	and 	is on 	the 	"management 	team."
Also on 	the 	"management 	team" 	are 	the 	director 	of 	food
service 	and 	the 	District 	supervisor 	of 	building 	and 	grounds.
The 	director 	of 	food 	service oversees 	the 	District's 	food
service program and 	is 	responsible 	for 	menu planning, 	buying
food 	and 	equipment, 	and 	visiting 	the 	individual high 	school
cafeterias 	to check 	that 	the 	right 	amount of 	food 	is properly
served. 	The 	director 	of 	food 	service 	also works 	with 	cafeteria
managers 	to 	design 	routines 	for 	providing 	food 	at 	each
cafeteria.
The District 	supervisor of buildings and grounds, 	who 	is 	in
charge of maintenance 	and operations, 	handles 	the maintenance
budget. 	This 	individual participates 	in 	the 	interviewing 	and
hiring 	of 	new 	building 	and 	grounds 	crew members, 	supervises 	the
44

building 	and 	grounds 	supervisors7 and 	in 	some 	instances 	deals
directly 	with 	personnel problems 	upon 	being 	made 	aware 	of 	them
by 	the 	building 	and 	grounds 	supervisors.
Both 	the 	District 	supervisor 	of 	buildings 	and 	grounds 	and
the 	director 	of 	food 	service participate 	in 	negotiations 	with
respect 	to matters 	relevant 	to 	the programs 	they 	administer.
The 	director 	of pupil personnel 	services, 	who coordinates
District counselors 	and 	nurses, 	was 	also 	stipulated 	to be 	a
management 	employee. 	That 	individual 	formulates 	District
policy on pupil expulsions, 	and 	is 	in charge of all 	testing.
DISCUSSION
Under 	section 	3543.4,8 	individuals 	who hold 	confidential
or 	management posts 	would 	be 	barred 	from 	representation 	in
7We 	do 	not 	address 	at 	this 	juncture 	the problem of
representation 	of 	supervisors 	except 	to 	acknowledge 	the 	tension
created 	by 	section 	3545(b)(2)'s 	apparently 	contradictory
mandates 	that all District 	supervisors must be 	in one 	unit, 	but
that 	supervisors 	may 	not 	be 	represented 	by 	the 	same 	employee
organization 	that 	represents 	the 	employees 	they 	supervise.
8sec. 	3543.4 	provides 	that:
No person 	serving 	in 	a management position
or 	a 	confidential position 	shall 	be
represented 	by 	an 	exclusive 	representative.
Any person 	serving 	in 	such 	a position 	shall
have 	the 	right 	to 	represent himself
individually 	or 	by 	an 	employee 	organization
whose 	membership 	is 	composed 	entirely of
employees 	designated 	as 	holding 	such
positions, 	in his employment 	relationship
with 	the public school employer, 	but, 	in no
case, 	shall such 	an organization meet 	and
negotiate 	with 	the 	public 	school employer.
No 	representative 	shall 	be 	permitted 	by 	a
public 	school employer 	to meet 	and 	negotiate
on 	any benefit 	or 	compensation paid 	to
persons 	serving 	in 	a management position or
a 	confidential position.
55

Local 	856's 	proposed 	supervisory 	unit.9
The Board 	agrees 	that 	the 	stipulated 	facts 	support 	the
conclusion 	that 	the 	district 	accountant 	and 	the 	three
secretaries 	in question are 	confidential employees. 	Each 	in
the 	course 	of duty has 	regular 	and 	early 	access 	to 	strategic
District 	negotiating 	information.10 Just 	as 	the 	Act 	reserves
to 	the 	employer 	a 	nucleus of 	individuals 	to assist 	in
employer-employee 	relations, 	it 	exempts 	these persons 	from
coverage 	by 	the 	Act.21
The 	stipulated 	facts 	similarly 	show 	that 	the 	deputy
superintendent 	for 	personnel, 	the 	assistant 	superintendent 	for
business, 	and 	the 	assistant 	superintendent 	for 	educational
services 	are management 	employees. 	In each case 	an attempt was
made 	to 	stipulate 	to 	the 	ultimate 	fact 	that 	"this 	individual
has 	significant 	responsibilities 	for 	formulating 	District
9 Sec. 	3545(b)(2) 	is cited at n. 3, 	supra.
1 0 See 	Sierra 	Sands 	Unified 	School 	District 	(10/14/76)
EERB Decision No. 	2, 	at 2-3; 	Fremont Unified "School District
(12/16/76) 	EERB Decision No. 	6, 	at 10.
11Sec. 	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.)
66

policies 	and 	administering 	District programs." 	But 	this 	is 	not
determinative.
The 	Board 	has 	an obligation 	to 	look 	into 	the 	entire 	record
and, 	in accord with California 	law, 	is not bound by 	the
parties' stipulations on 	the 	legal conclusions 	to 	be 	drawn 	from
stipulated 	facts.12 The 	parties 	cannot 	by 	their 	stipulations
divest 	the 	Board 	of 	its powers 	and 	duty 	to 	review designated
management 	positions13 and 	determine 	appropriate 	units.14
In 	this case, 	however, 	the 	evidence adduced at 	the hearing
reveals 	that 	the deputy 	superintendent 	for personnel, 	the
assistant 	superintendent 	for 	business, 	and 	the 	assistant
superintendent 	for 	educational 	services 	play 	significant 	and
autonomous 	roles 	in District policymaking; 	each has
"significant 	responsibilities 	for 	formulating 	district 	policies
or 	administering 	district 	programs,"15 and 	is 	not 	subject 	to
immediate 	supervision 	in 	this 	regard.16
12see 	e.g. 	Glade v. 	Superior Court 	(1978) 	76 Cal.App.3d
738, 	744; 	Estate of Burson 	(1975) 	51 Cal.App.3d 300, 	306 	[124
Cal.Rptr. 	105]; 	Leonard v. 	City of Los Angeles 	(1973) 	31
Cal.App.3d 473, 	476; 	People v. 	Southern Pacific Co. 	(1962) 	208
Cal.App.2d 745, 	747-748 	[25 Cal.Rptr. 	644]. 	See also Centinela
Valley Union High 	School District 	(8/7/78) 	PERB Decision No.
62 	at 2-4; 	Hartnell Community College District 	(1/2/79) 	PERB
Decision No. 	81.
13sec. 	3540.l(g).
14sec . 	3541.3(a).
15Sec. 	3540.1(g) .	1 (g) •
1 6 See 	Los 	Rios Community College 	District 	(6/9/77) 	EERB
Decision No. 18 	at 	18-19; 	Lompoc Unified 	School District
(3/17/77) 	EERB Decision No. 	13 at 19-21 and 22.
77

The Board will 	not 	normally question 	the 	managerial or
supervisorial 	status of employees 	unless 	exceptions 	are 	filed.
But 	when 	the 	record 	reveals 	a 	likelihood 	that 	the 	law has 	been
misinterpreted 	or 	misapplied, 	the Board 	has 	a duty 	to 	ascertain
whether 	an error 	has been made, 	and 	to correct 	it. 	Here, 	the
record 	does 	not 	support 	a 	finding 	that 	the director 	of pupil
personnel 	services, 	the director of 	food 	service, 	and 	the
District 	supervisor 	of 	buildings 	and 	grounds 	are 	management
employees. 	The 	evidence suggests, 	rather, 	that 	the work
responsibilities 	of 	these 	individuals 	bear 	at 	least 	some 	of 	the
hallmarks of 	supervisory 	status. 	While managerial employees
exercise 	discretion 	in 	formulating 	and 	administering 	district
policies 	and programs, 	supervisorial employees 	are 	those with
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.17
For 	example, 	the parties 	stipulated 	that 	the 	director 	of
pupil personnel services 	"coordinates counselors 	and 	nurses."
This 	description 	is 	as 	consonant with 	supervisory 	as with
management 	status. 	Although 	this 	individual also makes
recommendations 	concerning 	District 	policy 	on 	student
1 7 Sec. 	3540.l(m).
88

expulsions, 	it 	is not 	self-evident 	that 	this constitutes
"significant 	responsibility 	for 	formulating 	District 	policies
or 	administering 	District programs."
The 	testimony 	also 	suggests 	that 	the 	director 	of 	food
service 	may 	have 	supervisory 	responsibilities. 	Planning 	menus
and 	working 	with 	cafeteria managers 	to 	design 	food 	service
routines 	intimates 	that 	this 	individual has at 	least a modicum
of control over 	work assignment. 	It 	seems 	improbable 	that 	the
director 	of 	food 	service 	is 	charged 	with 	the 	duty 	to 	see 	that
the cafeterias 	run properly, 	without 	the 	authority 	to demand
change 	if 	they are 	not.
Mere 	input 	in District 	negotiations on cafeteria 	items 	is
insufficient 	to 	transmute 	an 	individual 	from employee 	to
management. 	The 	right of 	the 	District 	to obtain 	knowledgeable
information 	about discrete 	segments of 	its operations, 	and 	the
right 	of otherwise 	eligible 	workers 	to 	employee 	organization
representation are 	here 	coequal. 	The purposes of 	the Act 	are
not 	served 	by 	disqualifying 	all 	employees who aid 	the 	District
in preparing 	for 	negotiations 	from membership 	in 	an 	appropriate
negotiating 	unit.
Equally, 	participation 	in a management 	team does 	not per 	se
- .
preclude 	an 	individual 	from being 	an 	"employee" 	for 	the
purposes of 	the 	Act, 	especially when 	the management 	team 	is
described as 	nebulously as 	it 	is here:
Q. 	Are 	you part of 	the 	District management 	team?
A. 	Yes, 	I am.
99

Q. 	Could you 	tell us what 	that 	is?
A. 	The management team, 	let's 	see 	if 	I can put 	it
right, 	are all 	the ones 	in management and we get
together 	and 	discuss policy 	and 	things 	that happen 	in
the District.
Q. 	As 	a 	result of 	those discussions are 	changes 	in
policy 	made?
A. 	Sometimes.
We discount, 	as well, 	the District building and grounds
supervisor's 	limited 	role 	in District 	negotiations, 	and decline
to 	stigmatize 	an employee 	who participates 	in 	a management 	team
as 	unstructured 	as 	that 	described 	here. 	Mere 	administration of
a District program, 	including budget responsibilities, 	is
inadequate 	to compel 	the 	conclusion 	that 	the 	District 	building
and grounds 	supervisor 	is 	a management employee. 	As 	the Board
majority observed 	in 	Lompoc Unified 	School 	District,18 the
"or" 	in 	section 3540(g) 	must be construed as 	"and" 	in order 	to
achieve 	the 	obvious purposes of 	the 	Act;19 otherwise 	the
Legislature 	has 	given 	supervisors 	negotiating 	rights 	with 	one
hand,20 and 	taken 	them 	away 	with 	the 	other.21
18EERB 	Decision No. 	13 	(3/17/77) 	at 19-21 and 22.
19See 	Houge v. 	Ford 	(1955) 	44 Cal.2d 706, 	712.
2 0 Sec. 	3545(b)(2). 	See also sec. 	3540.l(m).
21sec. 	3543.4. 	See also sec. 	3540.l(g).
10

Apart 	from 	the 	responsibilities 	discussed 	above, 	the
District 	building 	and 	grounds 	supervisor 	clearly 	has 	some 	of
the 	same 	enumerated 	indicia 	of 	supervisory 	employees 	possessed
by 	the 	high 	school 	building 	and 	grounds 	supervisors. 	It 	is
even 	possible 	that 	further 	testimony 	would 	reveal 	a 	community
of 	interest 	between 	these 	employees.
It 	is 	also possible 	that persons 	in 	the 	disputed 	job
classifications 	are 	disqualified 	from 	representation 	in 	the
supervisory 	unit 	on 	different 	grounds. 	While 	EERA 	section
3545(b)(2) 	requires 	all 	District 	supervisory 	employees 	to 	be 	in
the 	same 	unit, 	this 	provision 	may 	be 	qualified 	by 	section
3545(b)(3), 	which 	prohibits 	classified 	and 	certificated
employees 	from being 	included 	in 	the 	same 	unit. 	Therefore 	if
any 	of 	these 	positions 	require 	certification, 	the 	statute 	may
require 	that 	they 	be 	excluded 	from 	the 	classified 	supervisory
unit.22
ORDER
The 	Public 	Employment 	Relations 	Board 	ORDERS 	that:
(1) 	The 	position 	of 	building 	and 	grounds 	supervisor 	is
supervisorial 	within 	the 	meaning 	of 	section 	3540.l(m) 	of 	the
EERA.
(2) 	The 	positions 	of 	secretary 	to 	the 	superintendent,
secretary 	to 	the 	deputy 	superintendent 	for 	personnel, 	secretary
to 	the 	assistant 	superintendent 	for 	business
22	22
11
we	we 	note 	that 	the 	resolution 	of 	this 	precise 	question 	is
unnecessary 	to 	the 	Board's 	determination 	of 	the 	instant 	case.

and District accountant are confidential within the meaning of
section 3540.1 (c) of the EERA.
(3) The positions of deputy superintendent for personnel,
assistant superintendent for business and assistant
superintendent for educational services are managerial within
the meaning of section 3540.1(g) of the EERA.
(4) The case is remanded for further testimony on the
issue of whether the positions of director of pupil personnel
services, District supervisor of building and grounds and
director of food service are managerial or supervisorial.
(Byy Jerilou Cossack Twohey, Member Harry Gluck Chairperson
Raymond J. Gonzales, Member, concurring:
I concur in the affirmance of the hearing officer's decision
that the position of building and grounds supervisor is supervisory.
I also concur in the majority's decision to remand this case for
further evidence on the positions of the director of personnel
services, director of food service, and the District supervisor
of building and grounds. Parties can stipulate to facts, and
should be encouraged to do so; such stipulations should be binding
on the Board. Parties can also stipulate to the status of
positions. However, these stipulations, which go to the legal
conclusions to be drawn from facts, are not binding on the
12
and 	District 	accountant 	are 	confidential 	within 	the 	meaning 	of
section 	3540.l(c) 	of 	the 	EERA.
(3) 	The 	positions 	of 	deputy 	superintendent 	for 	personnel,
assistant 	superintendent 	for 	business 	and 	assistant
superintendent 	for 	educational 	services 	are 	managerial 	within
the 	meaning 	of 	section 	3540.l(g) 	of 	the 	EERA .
(4) 	The 	case 	is 	remanded 	for 	further 	testimony 	on 	the
issue 	of 	whether 	the 	positions 	of 	director 	of 	pupil 	personnel
services , 	District 	supervisor 	of 	building 	and grounds and
director 	of 	food 	service 	are 	managerial 	or 	supervisorial .
(B7Jerilou 	Cossack 	Twohey, 	Member 	Harry 	Gluck 	Chairperson
Raymond J. 	Gonzales, 	Member, 	concurring:
I 	concur 	in 	the 	affirmance 	of 	the 	hearing 	officer's 	decision
that 	the 	position 	of 	building 	and grounds 	supervisor 	is 	supervisory .
I 	also 	concur 	in 	the 	majority's 	decision 	to 	remand 	this 	case 	for
further 	evidence 	on 	the 	positions 	of 	the 	director 	of 	personnel
services, 	director 	of 	food 	service, 	and 	the 	District 	supervisor
of building 	and grounds. 	Parties 	can 	stipulate 	to 	facts , 	and
should be 	encouraged 	to 	do 	so; 	such 	stipulations 	should be 	binding
on 	the 	Board . 	Parties 	can 	also 	stipulate 	to 	the 	status 	of
positions . 	However, 	these 	stipulations, 	which go 	to 	the 	legal
conclusions 	to 	be 	drawn from 	facts, 	are 	not 	binding 	on 	the
I
12

Board.1 The question is how closely should these 	stipulations
be 	scrutinized and when should they be overturned.
Board rule 330002 provides:
It is 	the policy of the Board to encourage the
persons covered by the Act to resolve questions
of representation by agreement among themselves,
provided such agreement is not inconsistent with
the purposes 	and policies of the Act and the Board.
2
This policy will be thwarted if parties' 	stipulations are too
easily overturned; 	the parties will be less 	inclined to make
agreements 	if the issues must be litigated anyway.
On the other hand, 	the Board should be reticent in allowing
parties 	to stipulate away fundamental employee rights. 	I believe
that a purpose of the EERA is 	to make negotiating rights broadly
available 	to 	full-time 	district 	employees.3 An agreement between
the parties 	that certain employees are management deprives 	those
employees of any protection under the EERA. 	Thus, 	such agreements
should be 	carefully scrutinized. 	If the stipulated facts 	do not
clearly support a finding that the 	employees are managerial within
the meaning of section 3540.l(g), 	the agreement should not be
accepted. 	As 	the majority opinion sets 	forth, 	the facts on the
director of personnel services, 	the director of food service, 	and
the District supervisor of building and grounds, 	obtained through
stipulation and testimony, 	are not indicative of managerial 	status.
1See, 	e.g., 	Glade v. 	Superior Court (1978) 	76 Cal.App.3d 738,
744; Leonard v. City of Los Angeles (1973) 31 Cal.App. 3d 473, 476.
2California Administrative Code, title 8, section 33000.
3Lompoc Unified School District 	(3/17/77) 	EERB Decision No. 	13,
p. 20.
13

While I agree with the majority in this case, I am uneasy
about the majority's increasing tendency to examine all issues,
disputed or not, in every case that comes before us. It is my
preference that parties be encouraged to agree through stipula-
tions, as long as those stipulations are not improper. 	Giving
the parties leeway in settling disputes themselves, even if such
settlements differ from how the Board would have resolved the
issues, expedites administrative proceedings and enhances the
relationship between the parties. Also, a party should not be
deterred from appealing an issue to the Board for fear that other
aspects of the case, satisfactorily resolved, will be overturned
or modified. 	Therefore, I will let stipulations stand unless
they clearly contravene the EERA or consistent policies established
by the Board. 	Stipulations between employers and employee organi-
zations which deprive entitled employees of all statutory rights
contravene the EERA and should not stand.
Raymond J. Gonzales , Member
*See my dissent in Monterey Peninsula Community College
District (10/16/78) PERB Decision No. 76, pp. 17-18.
Centinela Valley Union High School District (8/7/78)
PERB Decision No. 62.
14
While 	I 	agree with the majority 	in this 	case, 	I 	am uneasy
about 	the majority ' s 	increasing 	tendency 	to 	examine 	all 	issues,
disputed or not, 	in every case 	that 	comes 	before us. 	It 	is 	my
preference 	that 	parties 	be 	encouraged 	to 	agree 	through 	stipula-
tions, 	as 	long as 	those 	stipulations 	are not 	improper. 	Giving
the parties 	leeway 	in 	settling 	disputes 	themselves, 	even 	if 	such
settlements 	differ 	from how 	the 	Board would have 	resolved 	the
issues, 	expedites 	administrative proceedings 	and enhances 	the
relationship between 	the 	parties. 	Also, 	a 	party 	should not be
deterred 	from 	appealing 	an 	issue 	to 	the 	Board 	for 	fear 	that 	other
aspects 	of 	the 	case, 	satisfactorily resolved, 	will 	be 	overturned
or modified . 4 Therefore, 	I 	will 	let 	stipulations 	stand unless
they 	clearly 	contravene 	the 	EERA or 	consistent policies 	established
by 	the 	Board. 5 Stipulations 	between 	employers 	and 	employee 	organi-
zations 	which 	deprive 	entitled 	employees 	of 	all 	statutory 	rights
contravene 	the 	EERA and 	should not 	stand .
Raymond J. 	Gonzales, 	Member
4 see my 	dissent 	in Monterey Peninsula 	Community 	College
District 	(10/16/78) 	PERB Decision No . 	76, 	pp . 	17-18.
5 Centinela Valley Union High School 	District 	(8/7 /78)
PERB Decision No. 	62 .
14

PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF THE 	STATE OF 	CALIFORNIA
In 	the Matter of:
JEFFERSON UNION HIGH 	SCHOOL 	DISTRICT,
Employer	Employer
and
INTERNATIONAL 	BROTHERHOOD 	OF
TEAMSTERS, 	LOCAL 856,
Employee Organization.
)
)
)
> 	Case No. 	SF-R-573
Proposed 	Decision
January 20, 	1978
)
)
)
)
)
Appearances: 	Joseph H. 	Clasgens, 	Attorney, 	for Jefferson Union High
School District; 	Kenneth N. 	Silbert, 	Attorney, 	for International
Brotherhood of Teamsters, 	Local 	856.
Before Jeff Paule, 	Hearing Officer.
PROCEDURAL 	HISTORY
On May 13, 	1977, 	the San Francisco Bay Area Professional 	and
Vocational 	Employees 	Division, 	Teamsters Union Local 	856 	filed a
request 	for 	recognition with 	the 	Board of 	Trustees 	of 	the 	Jefferson
Union High 	School 	District 	(District) 	seeking 	exclusive 	representation
of 	a 	classified 	supervisory personnel 	unit 	consisting 	of 	five 	employees
who hold 	the positions 	of building 	and grounds 	supervisors 	in 	the
District.
On May 19, 	1977, 	the Jefferson Union High School District
requested 	that 	the Public Employment 	Relations 	Board 	(PERB) 	hold 	a
unit 	determination hearing 	to 	determine whether 	the 	five 	employees
are 	supervisors within 	the meaning 	of Government 	Code 	Section 	3540.l(m)
)
)
)
_________ )

and 	also 	to 	determine 	the 	appropriateness 	of 	the 	requested
unit.
On August 18, 	1977 and January 13, 	1978, 	a formal unit
determination hearing was 	held before 	a hearing 	officer 	of 	the
PERB.
ISSUES
1. 	Whether building 	and 	grounds 	supervisors 	are 	supervisory
employees within 	the meaning 	of 	the 	Educational 	Employment Relations
Act 	(EERA).
2. 	If 	they are 	found to be 	supervisory employees, 	whether
they 	constitute 	an appropriate unit.
FINDINGS 	OF FACT AND DISCUSSION
Government Code Section 3540.l(m) 	states:
"Supervisory employee" means 	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 responsi-
bility 	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 	PERB 	stated in 	Sweetwater Union High School 	District,
EERB Decision No. 	4, 	November 23, 	1976, 	that "this 	section of the
EERA is written in 	the disjunctive; 	therefore, 	an employee need not
possess 	all 	of 	the 	enumerated functions 	or 	duties 	to be 	a 	supervisor.
The 	performance of 	any one 	of 	the 	enumerated action or 	the 	effective
power 	to recommend such action is 	sufficient 	to make 	one 	a 	supervisor
within the meaning of the EERA. 1"11
1see 	also 	San Diego Unified School District, 	EERB Decision No. 	8,
February 18, 	1977.
-2-

The 	employee organization 	in 	the 	present 	case 	describes
various 	instances 	in which 	the building 	and grounds 	supervisors
are 	involved in job assignment, 	training, 	day-to-day supervision,
coordination of overtime assignments, 	hiring, 	disciplining and
evaluation of 	employees.
The 	employer, 	though acknowledging 	these 	involvements, 	argues
that 	the nature 	of 	the 	responsibility 	and 	authority 	exercised by 	the
building 	and grounds 	supervisors 	is 	such 	that 	the 	duties 	are 	actually
clerical 	and/or 	advisory 	in nature, 	requiring no 	independent judgment.
The 	employer 	argues 	that 	the 	distinctions made 	in 	several 	Board
decisions, 	i.e., 	Lompoc Unified School District, 	EERB Decision No. 	13,
March 17, 	1977, 	where 	the Board found part-time 	subject coordinators
not 	to be 	supervisors; 	New Haven Unified School District, 	EERB
Decision No. 	14, 	March 22, 	1977, 	where the Board found high school
department heads not 	to be 	supervisors; 	and Foothill-DeAnza Community
College District, 	EERB Decision No. 	10, March 1, 	1977, where the Board
found 	that 	custodial 	foremen were not 	supervisors within 	the meaning 	of
Section 3540.l(m), 	are 	similar 	to 	those which should be applied herein.
It has 	been 	acknowledged by 	the 	PERB 	that 	the 	statutory
scheme 	recognizes 	that public 	and private 	sector 	supervisors 	differ
in 	the nature 	of 	the 	authority 	they possess 	in 	that public 	school
districts 	ultimately reserve 	decisions 	regarding hiring, 	discipline
and 	salaries 	of 	employees 	for 	decision-makers 	far 	removed 	from 	the
employees' 	immediate 	supervision. 	Based on this recognition, 	the
California 	statutory 	scheme 	lends 	itself 	to 	a broader 	construction of
the definition of supervisor 	contained in the EERA.2
2See Sweetwater Union High School District, 	supra at p. 	14.
-3-

The 	record indicates 	that 	the 	building 	and 	grounds 	supervisor
assigns 	the members 	of 	the building 	and grounds 	crew to 	tasks 	that need
to be done and 	sees 	that 	the work is 	done 	according 	to 	schedule, 	as
well 	as 	assigning 	overtime hours 	and granting 	time 	off when 	it 	is
necessary. 	The building 	and grounds 	supervisor 	also rearranges 	work
assignments when 	there 	is 	a 	shortage of personnel. 	See Carlsbad
Unified School District, EERB Decision No. 	41, November 29, 	1977.
Though 	a building 	and grounds 	supervisor 	serves merely as 	one of
three 	individuals 	on a hiring 	committee, 	he 	is responsible 	for
ongoing 	evaluation of 	the 	custodial 	staff, 	submitting his written
evaluations 	to 	the District building 	and grounds 	supervisor. 	He 	also
has 	authority 	to 	place 	a letter 	of reprimand 	in 	an employee's 	file.
The building 	and grounds 	supervisor 	is 	also 	responsible 	for 	training
all 	new employees 	along with handling 	day-to-day problems 	that may
arise 	in 	terms 	of 	performance 	of work 	and providing 	any 	instruction
necessary.
The 	evidence 	is 	somewhat 	contradictory as 	to whether 	the building
and grounds 	supervisor has 	the 	authority 	to 	transfer 	and/or 	take
direct disciplinary action against employees, 	but 	there 	is, 	however,
evidence 	in the record 	as 	to 	at 	least one 	instance 	in which a building
and 	grounds 	supervisor 	removed 	an 	employee 	from his 	job because 	of his
alcoholic 	condition.
In addition 	to 	these 	duties, 	the building and grounds 	supervisor
spends 	approximately 	two-thirds 	of his 	time 	doing 	actual maintenance
work. 	The 	fact 	that building 	and grounds 	supervisors 	do 	spend 	this
amount of 	time 	doing maintenance work does not, 	however, 	detract 	from
the 	fact 	that 	they 	also 	perform 	the 	supervisory 	functions 	listed above.
-4-

The part-time subject coordinators 	in Lompoc, 	supra, 	were 	found
not 	to 	be 	supervisors 	because 	the record 	contained uncontradicted
evidence 	that no 	subject coordinators 	adjusted grievances, 	granted
leaves 	of absence, 	granted time off or assigned work. 	That 	is not
the 	case here. 	The New Haven decision, 	supra
- - . 	involved department
heads whose 	roles 	are 	fundamentally 	different 	than 	those 	of 	the
building 	and grounds 	supervisors 	in 	question here 	in 	that 	they neither
perform nor 	recommend 	any 	of 	the 	actions 	listed 	in 	the 	definition 	of
"supervisory 	employee" 	and 	function rather 	as 	administrative
coordinators 	giving 	assistance 	to 	less 	experienced 	teachers. 	In
Foothill-DeAnza, 	supra, 	the evidence was 	scant and what evidence 	there
was 	showed 	that 	the 	custodial 	foremen 	did not 	schedule work hours,
did not 	regularly 	inspect work 	of 	others 	and had 	only very 	limited
input 	into 	the hiring process. 	What 	these 	cases 	all 	share 	is 	that 	the
persons who were 	alleged 	to be 	supervisors were 	actually acting 	in 	the
capacity of 	administrative 	coordinators 	and 	did not possess 	the
functions 	enumerated in Section 3540.l(m).
It 	is 	found 	that 	the 	situation of 	the building and grounds
supervisors 	in the 	instant 	case 	is more 	akin 	to 	that of 	the
building 	services 	supervisors 	in 	San Diego Unified School 	District,
EERB Decision No. 	8, 	February 18, 	1977, 	or the head custodians 	in
Sweetwater, 	supra. 	In San Diego, 	supra, 	the PERB found that since
the building 	services 	supervisors 	prepare work schedules, 	approve
time 	sheets, 	and prepare 	and 	sign formal work performance 	evaluations
of 	custodians 	reporting 	to 	them and have 	the effective power 	to
recommend 	transfer or 	discharge, 	they were 	supervisors within 	the
-5 -

meaning 	of 	the 	EERA. 	In 	finding 	that 	the head 	custodians were
supervisors 	in Sweetwater, 	supra, 	the PERB stated:
The NLRB 	and other 	state public 	employment
relations 	boards 	have 	consistently held
that 	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.
In view of 	the 	evidence of 	the building 	and grounds 	supervisors'
independent 	authority 	in 	the 	areas 	of 	assignment 	and 	direction 	of
work, 	it 	is 	found that 	the building 	and grounds 	supervisors 	are
supervisors within 	the meaning of 	the 	EERA. 	The 	fact 	that 	they play
an important 	role 	in 	evaluating 	employees 	and 	in 	the hiring process
serves 	to bolster 	this 	conclusion.
Having 	found 	that 	the 	employees 	in question are 	supervisors
within 	the meaning of 	the EERA, 	the next 	inquiry is whether 	the 	five
building 	and grounds 	supervisors 	constitute 	an 	appropriate 	unit.
Section 3545(b)(2) 	requires 	that:
A negotiating 	unit 	of 	supervisory 	employees
shall not be 	appropriate unless 	it 	includes
all 	supervisory 	employees 	employed by 	the
district 	and 	shall 	not be 	represented by
the 	same 	employee 	organization 	as 	employees
whom 	the 	supervisory 	employees 	supervise.
The 	record 	indicates 	that 	there 	are presently 	two 	classified units
in 	the 	School 	District. 	The California 	School Employees Association
(CSEA) 	represents 	the 	clerical 	and business 	employees 	and the
American Federation of 	State, 	County and Municipal Employees 	(AFSCME)
represents 	the 	"blue 	collar positions plus 	the cafeteria 	[positions]."
Neither 	of 	these 	employee 	organizations 	has 	sought 	to 	represent 	the
proposed 	supervisory 	unit 	herein.
The 	record 	further 	indicates 	that 	there 	are 	eleven positions
which have been 	stipulated 	to be 	either management 	or 	confidential.
-6-

These 	include: 	superintendent, 	deputy 	superintendent of personnel,
assistant 	superintendent 	for business, 	assistant 	superintendent 	for
educational 	services, 	director of pupil personnel services, 	director
of 	food services 	and director of buildings 	and grounds 	(management);
secretary 	to 	the 	superintendent, 	secretary 	to 	the 	deputy 	superintendent,
secretary 	to 	the 	assistant 	superintendent 	for business 	and 	accountant
(confidential).
The parties 	presented evidence 	in 	support of 	the 	above
stipulation. 	After 	considering 	the 	evidence 	in 	light 	of PERB
decisions with respect 	to management 	designations 	(see 	San Francisco
Unified School District, 	EERB Decision No. 	23, 	September 8, 	1977 and
cases 	cited 	therein)and 	confidential 	employees 	(see 	Sierra 	Sands
Unified School District, EERB Decision No. 	2, October 14, 	1976), 	the
hearing officer hereby accepts 	the parties' 	stipulation.
Thus, 	having 	found 	that 	the 	five building and grounds 	supervisors
are 	the only 	supervisory employees 	in 	the District, 	a unit of 	these
employees 	is 	the only appropriate unit permitted by Section 	3545(b)(2).
See 	San Francisco Unified School District, 	supra.
PROPOSED 	DECISION
It 	is 	the proposed decision 	that:
1. 	The 	five building 	and grounds 	supervisors 	are 	supervisors
within 	the meaning of Section 3540.l(m).
2. 	A 	classified 	supervisory unit 	consisting 	of all 	building
and grounds 	supervisors 	is 	found 	to be 	appropriate 	for 	the purpose
of meeting 	and negotiating, 	providing 	an 	employee organization becomes
the 	exclusive 	representative 	of 	the unit.
-7-

The parties have seven (7) calendar days from receipt of the
proposed decision in which to file exceptions, in accordance with
Section 33380 of the PERB Rules and Regulations. If no party files
timely exceptions, this proposed decision will become final on
February 1, 1978 and a Notice of Decision will issue from the Board.
Within ten (10) workdays after the employer posts the Notice
of Decision, the employee organization shall demonstrate to the
Regional Director at least 30 percent support in the above unit.
The Regional Director shall conduct an election at the end of the
posting period if the employee organization qualifies for the ballot
and the employer does not grant voluntary recognition. Voluntary
recognition can only be granted to an employee organization which
demonstrates a majority showing of interest in the appropriate unit.
See Government Code Section 3544 and 3544.1.
The date used to establish the number of employees in the
above unit shall be the date this decision becomes final unless
another date is deemed proper by the Regional Director and notice is
given to the parties. 	In the event another date is selected, the
Regional Director may extend the time for employee organizations to
demonstrate at least 30 percent support in the unit.
Dated: 	January 20, 1978
Jeff Paule
Hearing Officer
- 8-
The 	parties 	have 	seven 	(7) 	calendar 	days 	from receipt 	of 	the
proposed 	decision 	in which 	to 	file 	exceptions . in 	accordance 	with
Section 	33380 	of 	the 	PERB 	Rules 	and Regulations . 	If no 	party 	files
timely 	exceptions, 	this 	proposed 	decision will 	become 	final 	on
February 	1, 	1978 	and 	a 	Notice 	of 	Decision will 	issue 	from 	the 	Board .
Within 	ten 	(10) 	workdays 	after 	the 	employer posts 	the 	Notice
of 	Decision, 	the 	employee 	organization 	shall 	demonstrate 	to 	the
Regional 	Director 	at 	least 	30 	percent 	support 	in 	the 	above 	unit .
The 	Regional 	Director 	shall 	conduct 	an 	election 	at 	the 	end of 	the
posting period 	if 	the 	employee 	organization 	qualifies 	for 	the 	ballot
and 	the 	employer 	does 	not 	grant 	voluntary 	recognition . 	Voluntary
recognition 	can 	only be 	granted 	to 	an 	employee 	organization which
demonstrates 	a 	majority 	showing 	of 	interest 	in 	the 	appropriate 	unit.
See 	Government 	Code 	Section 	3544 	and 	3544.1 .
The 	date 	used 	to 	establish 	the 	number 	of 	employees 	in 	the
above 	unit 	shall 	be 	the 	date 	this 	decision becomes 	final 	unless
another 	date 	is 	deemed proper by 	the 	Regional 	Director 	and notice 	is
given 	to 	the 	parties. 	In 	the 	event 	another 	date 	is 	selected , 	the
Regional 	Director may 	extend 	the 	time 	for 	employee 	organizations 	to
demonstrate 	at 	least 	30 	percent 	support 	in 	the 	unit.
Dated : 	January 20, 	1978
Jeff 	Paule
Hearing 	Officer
-8-