Franklin-McKinley School District (PERB 0108E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FRANKLIN-McKINLEY 	SCHOOL 	DISTRICT
Employer,
and
SAN 	FRANCISCO 	BAY AREA 	CERTIFICATED
EDUCATORS 	AND 	PROFESSIONAL
ASSOCIATES, 	TEAMSTERS LOCAL #856,
Employee 	Organization.
Case No. 	SF-R-604 A & B
PERB Decision No. 	108
October 26, 	1979
Appearances: 	Frank E. 	Mayo 	(Atwood and Hurst) 	Attorney for the
Franklin-McKinley 	School District; 	Mike McLaughlin and Wilma Rader,
Attorneys 	for 	San Francisco 	Bay Area 	Certified Educators 	and
Professional Associates, 	Teamsters #856.
Before Gluck, 	Chairperson; 	Gonzales and Moore, Members.
ORDER
The Franklin-McKinley 	School 	District 	excepts 	to 	the proposed
decision of 	the hearing 	officer 	in the above-captioned 	case. 	The
District 	excepts 	to 	the finding 	of the hearing officer 	that 	the
business 	office 	supervisor 	is 	not 	a 	confidential 	employee within
the meaning 	of 	the 	Educational 	Employment 	Relations 	Act 	and 	that
she 	should be 	included 	in a unit 	of 	classified 	employees. 	The
District 	also 	excepts 	to 	the hearing 	officer's 	finding 	that 	the
director 	of 	instruction 	is not 	a managerial 	employee and that he
should be 	included 	in a unit 	of 	certificated 	employees.
After 	considering the record 	as 	a whole 	and 	the 	attached
proposed decision 	in 	light of 	the 	exceptions 	filed, 	the proposed
order 	of 	the hearing officer 	is hereby adopted 	as 	the ORDER of
the 	Board 	itself.
PER 	CURIAM

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FRANKLIN-McKINLEY 	SCHOOL
DISTRICT,
Employer,
and
SAN 	FRANCISCO BAY AREA 	CERTIFICATED
EDUCATORS 	AND 	PROFESSIONAL 	ASSOCIATES,
TEAMSTERS # 856,
Employee 	Organization
Representation 	Case
No. 	SF-R-604 A & B
PROPOSED 	DECISION
(3/22/79)
Appearances; 	Frank 	E. 	Mayo 	(Atwood 	and Hurst) 	Attorney 	for 	the
Franklin-McKinley 	School 	District; 	Mike McLaughlin 	and Wilma Rader,
Attorneys 	for 	San Francisco Bay Area 	Certified 	Educators 	and
Professional Associates, Teamsters 	#856.
Before Fred 	D'Orazio, 	Hearing Officer.
PROCEDURAL 	HISTORY
On February 	28, 	1978, 	the 	San Francisco Bay Area Certificated
Educators 	and 	Professional Associates, 	Teamsters 	Local 856
(hereafter 	Local 	856 	or Teamsters 	or 	employee 	organization)
requested 	recognition 	as 	the 	exclusive 	representative 	of 	the
certificated 	supervisory 	employees 	in 	the 	Franklin-McKinley 	School
District 	(hereafter 	District). 	On March 7, 	1978, 	Local 856
requested 	recognition 	as 	the exclusive 	representative 	of 	the
classified 	supervisory 	employees 	in 	the District. 	Both requests were
denied 	by 	the District.
The 	cases 	were 	consolidated 	and 	a 	formal 	hearing 	was 	conducted
on June 	19, 	July 13, 	and July 14, 	1978 	by the Public Employment

Relations 	Board 	(hereafter 	PERB). 	At 	the 	hearing Local 	856 	amended
its 	requests 	so 	that 	the 	requested 	units 	are 	as 	follows:
Classified 	Supervisory 	Employees;
manager 	of maintenance 	and 	operations
business 	office 	supervisor
food 	service 	supervisor
custodial 	supervisor
transportation 	supervisor
Certificated 	Supervisory 	Employees;
administrative 	assistant
director 	of 	instruction
director 	of 	special 	services
coordinator 	of 	bilingual 	and 	cross-cultural 	education
principals
vice 	principals
With 	respect 	to 	the 	classified 	unit, 	the 	District contends 	the
manager 	of maintenance 	and 	operations 	is 	both managerial 	and
confidential. 	The District also contends 	that 	the 	business 	office
supervisor 	is a confidential employee. 	Therefore, 	these 	two
positions 	should 	be 	excluded 	from 	the 	unit. 	Finally, 	the 	District
argues 	that 	the 	requested 	classified 	unit 	is 	inappropriate 	because
of 	its 	size.
Regarding 	the 	certificated 	unit, 	the 	District contends 	the
administrative assistant, 	the director 	of 	instruction, 	the director
of 	special 	services 	and 	the 	coordinator 	of 	bilingual 	and
cross-cultural 	education 	are management 	employees. 	It 	further
contends 	that 	principals 	are 	confidential 	employees. 	Therefore,
they 	all 	should 	be 	excluded 	from 	the 	unit.
The 	parties 	stipulated 	that 	the 	following positions 	are
managerial 	and 	are 	therefore 	excluded 	from 	any 	supervisory 	unit:
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1superintendent, assistant superintendent, business manager.1
The 	parties 	further 	stipulated 	that 	vice 	principals 	were
properly 	included 	in 	a 	supervisory 	unit 	of 	certificated 	employees,
and 	the 	custodial 	supervisor, 	the 	food 	service 	supervisor, 	and 	the
transportation 	supervisor 	were 	properly 	included 	in 	the 	classified
supervisory 	unit.
ISSUES
1. 	The 	classified 	unit:
A. 	Whether 	the manager 	of maintenance 	and 	operations 	is 	a
management 	or 	confidential 	employee.
B. 	whether 	the 	business 	office manager 	is 	a confidential
employee.
2. 	The 	certificated 	unit:
A. 	Whether 	any of 	the 	following 	are 	management 	employees:
administrative 	assistant, 	director of 	instruction, 	director 	of
special 	services, 	coordinator 	of bilingual 	and 	cross 	cultural
education, 	and principals.
B. 	Whether 	principals 	are 	confidential employees.
3. 	Whether 	a 	single 	unit 	composed 	of 	both 	classified 	and
certificated 	employees 	is 	an 	appropriate 	unit 	under 	the 	Educational
Employment Relations Act 	(hereafter 	the Act or EERA). 	If 	so, 	is
such 	a 	unit 	appropriate 	in 	the 	present 	case.
DISCUSSION
The 	District 	has 	developed 	two 	groups 	of 	administrative
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1Testimony 	indicated 	that 	employees 	filling 	these 	positions
are 	also 	confidential employees, 	since 	they play a 	significant part
in 	the 	District's 	negotiations 	with 	non-supervisory employees.

personnel 	which meet 	regularly 	and 	consider 	a 	variety of 	subject
matter 	areas 	within 	the 	District.
The 	"Administrative 	Staff" 	is made 	up of 	site 	administrators 	and
principals, 	vice-principals, 	cafeteria managers, 	transportation
supervisors, 	and 	all 	the 	certificated 	staff who 	are 	not 	teachers.
The Administrative 	Staff meets 	once 	a month.
The 	"Management 	Team" 	(hereafter 	Team) 	is 	a smaller 	collection
of 	administrative 	personnel 	which meets 	twice a month. 	Except 	for
the 	business manager, 	all members 	of 	the Management Team work 	in 	the
District 	complex.
The 	manager 	of maintenance 	and 	operations, 	the 	administrative
assistant, 	the director of 	instruction, 	the director of 	special
services, 	and 	the coordinator of 	bilingual 	and 	cross 	cultural
education 	regularly 	attend 	Management 	Team meetings. 	Principals
sometimes 	attend 	Team meetings. 	In 	large measure, 	the 	District's
contention 	that 	these positions 	are managerial 	rests 	on 	the 	role
they play 	on 	the 	Team. 	The 	following 	represents 	a general
description of 	the operation 	of 	the Team.
The 	Management 	Team 	functions 	informally. 	The 	Team's 	input 	into
District policy 	can be 	triggered 	in a 	variety of 	ways. 	Sometimes
the 	board 	will 	ask 	the 	Team 	for 	a 	review 	of 	existing 	policy.
Sometimes 	the 	superintendent 	or 	the 	assistant 	superintendent will
ask 	the 	Team 	to consider 	a new policy. 	It 	is 	also possible 	for 	Team
members 	or 	other 	administrative 	personnel 	in 	the 	District 	to 	suggest
that 	a policy 	is 	needed 	in a certain area. 	Team members 	therefore
have 	the opportunity 	for 	input 	into District policy.
Team members 	sometimes 	receive 	proposed 	policy 	in 	writing 	prior
to 	the 	actual meeting 	so 	that 	they 	have 	the 	chance 	to 	review 	it 	and
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prepare 	comments 	for 	the meeting. 	Sometimes 	no written proposal 	is
given 	to 	them, 	and 	the 	policy 	is 	simply 	discussed 	at 	the 	meeting.
The Team usually operates 	on a 	consensus 	basis. 	After 	items 	are
presented 	and 	discussed, 	they 	are 	forwarded 	to 	the 	board 	as 	part 	of
the board's 	agenda 	if a consensus 	is 	reached. 	However, 	this
process 	is 	not 	always 	followed 	and 	an 	item can 	be 	forwarded 	to 	the
board 	as part of 	its 	agenda 	even when 	no consensus 	is 	reached.
Additionally, 	policy 	items 	may 	be 	presented 	to 	the 	board 	independent
of 	Team participation.
Sometimes 	a policy matter 	is 	discussed 	by 	the 	Team for 	the 	sole
purpose of 	determining 	whether 	the 	Team members 	could 	live 	with 	it,
as 	opposed 	to 	discussing 	it 	for 	the 	purpose 	of 	soliciting 	input 	into
the policy. 	Almost 	all 	items 	which go 	to 	the 	board 	do 	so 	via 	the
superintendent. 	The 	superintendent 	has 	the 	authority 	to 	block 	any
policy 	item 	from being 	sent 	to 	the 	board.
Other 	groups 	have 	a similar 	opportunity to offer 	input 	into
District policy. 	Administrators 	participate 	in 	the Administrative
Staff 	meetings 	in a manner 	not 	unlike 	that 	described 	for 	the 	members
of 	the 	Management Team.
Additionally, 	employee 	organizations, 	particularly the
Franklin-McKinley 	Education Association 	(hereafter 	FMEA) 	and 	the
California School Employees Association 	(hereafter 	CSEA), 	are 	given
the 	opportunity 	to 	submit 	input 	regarding 	District policy. 	These
organizations 	receive 	a copy 	of 	the 	District's 	proposed 	policy 	and
are 	given 	10 	days 	to 	comment before 	the policy 	is 	sent 	to 	the
Board. 	Their 	comments 	are 	sometimes 	meshed 	with 	those 	of 	the
Management Team, 	so 	that 	the 	proposed 	policy 	and 	the 	attached
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comments 	or 	recommendations 	which 	finally get 	to 	the 	board 	reflect
the 	positions 	of both. 	Management 	Team 	input 	is 	given 	no more
weight 	than 	the 	input of 	these 	other 	groups.
In 	addition 	to 	the 	Team, 	employee 	organizations 	and 	the
administrative 	staff, 	community groups 	and 	even 	individuals 	in 	the
District may 	recommend 	that 	a 	certain policy 	be 	developed 	in 	a 	given
area. 	Thus, 	input 	into the 	formulation of District policy comes
from 	a 	variety of 	sources.
In 	the 	final analysis, 	the 	board 	retains policy making
authority. 	The 	board 	and 	the 	superintendent 	use 	the 	team as 	a
consulting 	or 	advisory committee, 	with 	the 	superintendent 	serving 	as
the 	conduit 	through 	which 	the 	Team's 	input 	or 	recommendations may 	or
may 	not 	pass 	to 	the 	board.
Given 	the 	function of 	the 	Team, 	membership thereon, 	standing
alone, 	is 	not 	sufficient 	to qualify 	any position 	at 	issue 	as
managerial. 	The 	Team role 	of 	each 	employee 	whose 	position 	is 	at
issue 	herein 	will 	be 	specifically 	discussed 	below.A.
The 	Managerial 	Employees 	Issues
Government 	Code 	section 	3540.l(g) 	defines 	a management 	employee
as follows:
(g) 	'Management employee' 	means any
employee 	in 	a position 	having 	significant
responsibilities 	for 	formulating 	district
policies 	or 	administering 	district programs.
Management 	positions 	shall 	be 	designated 	by 	the
public 	school 	employer 	subject 	to 	review 	by 	the
Educational 	Employment 	Relations 	Board.
Each position 	at 	issue 	will 	be 	considered 	in 	view of 	the
criteria 	set 	forth 	in 	this 	section 	and 	applicable 	PERB 	and 	National
Labor 	Relations Board 	(hereafter 	NLRB) 	precedent.
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1. 	The Classified Unit
Manager 	of 	Maintenance 	and 	Operations
The manager 	of maintenance 	and operations 	(hereafter 	MMO) 	is
responsible 	for 	the 	custodial operation, 	the 	maintenance 	and 	grounds
operation, 	the 	transportation 	department 	and 	the 	warehousing
operation. 	At 	the 	time of 	the 	hearing, 	Mr. 	Anthony Mazzotti 	was 	the
MMO.
The 	MMO prepares 	a general budget 	for 	the 	areas 	under 	his
responsibility. 	It 	is 	then given 	to 	the 	business manager 	who
fashions 	a proposal 	to 	be presented 	to 	the 	superintendent 	or 	the
board of 	education. 	There 	are 	budget 	hearings 	conducted 	and 	the
board 	adopts 	a 	final budget 	which 	the 	MMO 	is 	compelled 	to 	accept.
As 	a member of 	the Management Team, 	Mr. 	Mazzotti 	attends 	and
participates 	in 	its 	regular 	meetings. 	He 	testified 	that 	he 	does 	not
effectively 	recommend 	or 	develop policy, 	and 	in 	fact 	could 	not
recall 	recommending 	any 	specific 	policy. 	Some 	areas 	in which 	Mr.
Mazzotti 	played a 	role, 	and 	the extent of 	that role, 	are as 	follows.
The Transportation Handbook; 	This 	document 	outlines 	the
responsibilities 	of 	school 	bus 	drivers 	and 	students when on 	school
buses. 	Prior 	to 	the 	development 	of 	the 	handbook, 	there 	existed 	a
loose, 	outdated collection of District policies 	. 	The District, 	the
bus 	drivers 	and 	the 	California School Employees Association, 	the
employee 	organization which 	represents 	the 	bus 	drivers, 	requested
new guidelines 	be developed 	in 	this 	area. 	A committee 	was 	formed 	of
bus 	drivers, 	the 	supervisor 	of 	transportation 	and 	the 	clerk-typist,
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who works 	in 	that 	department, 	for 	the 	purpose of developing a 	set 	of
guidelines 	which 	would 	be 	acceptable 	to 	the 	employees 	and 	the
District. 	The 	committee 	did 	so, 	and Mr. 	Mazzotti 	reviewed 	the 	rough
draft. 	After 	editing, 	the 	draft 	was brought 	to 	the 	attention of 	the
superintendent 	and 	then 	to 	the 	board, 	which 	adopted 	it 	after 	making
changes 	and 	clarifications 	during 	three 	separate meetings.
Mr. 	Mazzotti 	participated 	in 	the 	presentation 	of 	the 	handbook 	to 	the
board.
The 	relationship with outside contractors; 	Mr. 	Mazzotti 	is 	directed
by 	the 	superintendent 	or 	the 	business manager 	in his 	dealings 	with
outside 	contractors 	or 	architects. 	The 	outside 	firms 	submit 	their
bids 	directly 	to 	the 	board 	in 	accordance 	with 	the 	Education Code.
Mr. 	Mazzotti 	has 	no 	authority to 	reject or 	accept 	a bid on 	behalf of
the District. 	His 	relationship with 	these 	outsiders 	extends 	to
providing 	them access 	to District 	buildings when 	it 	becomes
necessary 	for 	them 	to 	visit 	a 	site 	where 	they may be 	working. 	Also,
the 	board 	may 	have 	him 	check 	out 	the 	reliability of 	a 	particular
contractor 	or 	architect 	in 	the 	community before making 	a 	decision 	on
whether 	to 	hire 	that 	particular 	individual 	or 	company.
The gas 	line 	at McKinley School: 	Mr. 	Mazzotti 	gathered 	information
in 	regard 	to 	the 	concern 	for 	a gas 	line 	at McKinley School. 	The
board 	had 	requested 	the 	information 	from the 	superintendent who, 	in
turn, 	asked Mr. 	Mazzotti 	to get 	it. 	Mazzotti 	relayed 	the
information 	to 	the 	superintendent, 	who 	then presented 	it 	to 	the
board.
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The 	walking 	distance 	policy; 	The 	District 	had 	a policy 	under 	which
it 	would 	provide 	transportation 	to 	students 	when 	they 	lived 	a
certain distance 	from 	school. 	The 	board 	requested 	that 	the 	policy
be 	revised 	and 	the 	superintendent 	passed 	the 	assignment 	on 	to
Mr. 	Mazzotti. 	He 	worked with 	the 	business manager 	and 	the
administrative 	assistant, 	and 	they 	developed 	a policy 	which 	would
meet 	the 	needs of 	the District 	and 	the 	equipment 	it 	had. 	The
proposed 	policy 	was 	then 	presented 	to 	the 	Management 	Team 	for
discussion, 	and 	ultimately 	to 	the 	board 	via 	the 	superintendent. 	The
board 	adopted 	the 	policy 	after 	making 	some 	changes.
Mr. 	Mazzotti's 	role 	in 	formulating 	the Transportation Handbook,
his 	dealings with 	outside 	contractors 	on 	behalf 	of 	the 	District, 	his
role 	in 	regard 	to 	the 	gas 	line 	at McKinley School 	and his
participation 	in 	developing 	the 	walking 	distance 	policy 	do 	not
support 	the 	District's 	contention 	that 	he possesses 	significant
responsibility 	for 	the 	formulation 	of 	District 	policy.
A 	draft of 	the 	transportation 	handbook 	was 	developed 	by 	a
committee 	under 	Mazzotti. 	After 	it 	was 	edited 	by 	the 	administrative
assistant, 	it 	was presented 	to 	the board 	through 	the
superintendent. 	The 	board 	considered 	it 	at 	three 	separate meetings
which Mazzotti 	attended 	and 	adopted 	it 	with 	some 	clarifications 	and
minor 	modifications. 	Mazzotti's 	role 	in 	the 	formulation 	of 	the
handbook 	is 	not 	significant 	since 	it 	had 	to be 	approved 	by at 	least
two 	levels of management, 	the 	superintendent 	and 	the 	board, 	before
it became 	final. 	Lompoc Unified School District 	(3/17/77) 	EERB
Decision No. 	13. 	This 	rationale 	is 	equally applicable 	to Mazzotti's
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role 	in 	the 	development of 	the 	District's 	walking 	distance 	policy.
Additionally, 	the 	handbook 	and 	walking 	distance 	projects 	were
not 	conceived 	or 	developed 	solely 	by Mazzotti. 	These 	projects
represented 	work 	assignments 	within 	his 	particular 	area 	of
responsibility 	and 	were 	accomplished 	in 	large 	part 	by 	others.
Similarly, 	Mazzotti's 	relationship with 	outside 	contractors 	does
not 	indicate 	that 	he possesses 	significant 	responsibility 	for
formulating District policy 	in 	this 	area. 	Bids 	are 	let 	to 	these
contractors 	by 	the board, 	and Mazzotti's 	role 	consists 	only of
providing 	access 	to District 	buildings 	and, 	at 	the 	direction of 	the
board, 	checking 	out 	their 	reliability 	in 	the 	community. 	Mazzotti
has 	no 	authority 	to 	bind 	the 	District 	in 	any way 	in his 	dealings
with 	these 	contractors. 	Therefore, 	this part of his 	job 	does 	not
make 	him 	a managerial 	employee.
In 	sum, 	the 	District did 	not 	present 	sufficient 	evidence 	to
support 	its 	position 	that 	the manager 	of maintenance 	and 	operations
administers 	District 	programs 	and 	formulates 	District 	policies.
Before 	an employee 	can be 	found 	to be managerial, 	it must be 	shown
that 	he 	or 	she 	has 	significant 	responsibility 	for 	both 	the
formulation of 	District policy 	and 	the 	administration of 	District
programs. 	Lompoc Unified School District, 	supra, 	EERB Decision No.
13. 	Therefore, 	it 	is concluded 	that 	the manager of maintenance 	and
operations 	is 	not 	a managerial 	employee 	within 	the 	meaning of
section 3540.l(g).
Mazzotti 	does 	direct 	the 	District's 	operation 	in 	the 	custodial,
maintenance 	and grounds, 	transportation 	and 	warehousing 	areas. 	In
doing 	so, 	he 	supervises 	about 40 	employees 	and has 	significant
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authority 	in 	their 	hiring, 	evaluation, 	and potential 	termination.
Also, 	as 	stated 	earlier, 	he 	prepares 	a 	recommended 	budget 	for 	his
area of 	responsibility, 	reports 	to 	the 	business manager 	and
superintendent, 	and 	is 	evaluated 	by 	the 	business manager.
Accordingly, 	it 	is 	concluded 	that his 	duties 	are more akin 	to 	those
of 	a 	supervisory employee. 	See 	San Rafael City High 	School District
(10/3/77) 	EERB Decision No. 	32.
2. 	The Certificated Unit:
Administrative 	Assistant
Mr. 	Roger 	Cryer 	has 	held 	the 	position 	of 	administrative
assistant 	for 	approximately 	five years. 	His 	duties 	are 	broken 	down
into 	four general areas: 	public 	information, 	research, 	planning and
supervision of 	the print 	shop.
With 	respect 	to 	the 	area 	of public 	information, 	Mr. 	Cryer 	edits
and 	publishes 	"Reach Out", 	a 	document directed 	to parents 	and 	the
community, 	and 	"Inside", 	a document 	directed 	to employees 	in the
District. 	The 	latter 	publication 	summarizes 	the 	happenings 	at 	board
meetings 	and 	includes 	other 	areas 	of personnel 	information 	in 	the
District. 	Additionally, 	the 	administrative 	assistant 	serves 	as 	the
District's 	liaison 	with 	the 	press 	and 	electronic media. 	In 	this
capacity 	he prepares press 	releases. 	These 	duties 	do 	not amount 	to
significant 	responsibilities 	for 	formulating 	policy 	or 	administering
programs 	in 	the 	District. 	See Marin Community College 	District,
(6/26/78) 	PERB Decision No. 	55.
Cryer 	also 	does 	a 	considerable 	amount 	of demographic 	research
and 	planning 	for 	the District. 	He 	gathers 	information about 	the
11

number 	of 	school 	age 	children 	in 	the District, 	the 	number 	of 	school
age 	children 	projected 	for 	the 	District, 	the 	District's 	ethnic
population, 	and 	the 	number 	of 	students per 	household 	in 	the
District. 	At 	the 	direction of 	the 	superintendent, 	Cryer 	uses 	this
information 	to prepare 	the District's master 	plan, 	which 	includes
such 	subjects 	as 	student 	attendance, 	student population, 	student
placement, 	and District boundaries.
Based 	on 	this 	information, 	Cryer 	makes 	recommendations 	to 	the
board 	regarding 	the 	adoption of 	the master 	plan 	and 	ethnic
composition of the 	school. 	The 	board 	is 	free 	to accept, 	reject or
modify 	his 	recommendations.
Cryer's 	research 	and 	planning 	function 	do 	not 	make 	him a
managerial 	employee. 	The 	board 	retains 	the 	final 	decision making
authority 	in 	this 	area, 	and 	simply 	relies 	on Cryer's 	research 	and
expertise 	in 	reaching 	its 	decision. 	See Lompoc Unified 	School
District, 	supra, 	EERB Decision No. 	13, 	citing Flintkote Co. 	(1975)
217 NLRB No. 	85 	[89 LRRM 1295] 	with approval. 	Therefore, 	it 	is
concluded 	that 	Cryer's 	research 	and 	planning 	duties 	do 	not 	represent
significant 	responsibility 	for 	the 	formulating 	of 	District 	policy 	or
administering 	of 	District 	programs.
The 	administrative 	assistant 	also 	supervises 	the 	print 	shop. 	In
addition 	to publishing 	"Inside" 	and 	"Reach Out", 	the print 	shop
publishes 	requests 	from all 	departments 	in 	the 	District office,
including 	such 	items 	as 	school menus, 	curriculum 	and 	business 	forms.
Cryer 	prepares 	the 	yearly print 	shop budget, 	which 	is 	then
submitted 	to 	the 	business 	office 	for 	revision 	and 	then 	forwarded 	on
to 	the 	board 	for 	final 	approval. 	He 	is 	then 	told what his 	budget
12

will be 	and 	he 	is 	required 	to 	accept 	it.
Additionally, 	the 	administrative 	assistant 	serves 	as 	the
District's 	liaison 	to 	the 	San Jose 	Department of 	Parks 	and
Recreation. 	The 	District enters 	into 	an 	annual contract with 	the
Department 	of 	Parks 	and 	Recreation 	concerning 	the 	recreational
program. 	Cryer 	reviews 	the 	Department's 	proposal 	and 	gives 	his
analysis of 	its 	content 	to 	the 	business manager, 	the 	superintendent
and 	occasionally 	the 	board. 	He 	makes 	no 	recommendations 	regarding
the proposal.
At 	the 	request 	of 	the 	superintendent, 	he makes calls 	and
initiates 	contacts 	with 	those 	who 	are 	interested 	in 	purchasing
District property. 	This 	requires 	that 	he 	keep abreast 	of city,
county 	and 	other administrative regulations 	which may 	affect 	such 	a
transaction. 	Cryer 	has 	never 	determined 	if 	District 	land 	was 	to be
bought 	or 	sold.
There 	is 	insufficient 	evidence 	to 	show 	that 	the 	duties 	involving
his 	role 	in supervising 	the print 	shop, 	his 	role as 	the District's
liaison 	to 	the 	city's 	Department 	of Parks 	and Recreation, 	or 	his
contact 	with 	individuals 	desiring 	to 	purchase 	District 	property
involve 	significant 	responsibility 	for 	both 	formulating 	District
policy 	or 	administering District programs. 	Lompoc Unified 	School
District, supra.
Cryer 	testified 	as 	to 	the 	role 	of 	the 	Management 	Team 	in policy
making 	areas. 	He 	said 	that 	tentative policies 	are 	brought 	to 	the
Team for 	comment 	and 	there 	is 	some 	attempt 	to 	reach 	a consensus 	on
the matter. 	However, 	policy matters may be 	submitted 	to 	the board
and 	considered 	without 	involving 	the 	Team at 	all.
13

With 	respect 	to his 	participation 	on 	the 	Management Team, 	Cryer
gave 	the 	following 	examples: 	For 	purposes of 	style, 	he drafts
resolutions 	at 	the 	request of 	the 	board 	or 	the 	superintendent, 	but
has 	no 	input 	into 	the 	content 	of 	these 	resolutions. 	He 	also 	assists
others 	in drafting proposals, 	studies or projects. 	Once 	again, 	he
has 	no 	influence 	regarding 	the 	content 	of 	these 	documents. 	Rather,
his participation 	is more 	in 	the 	way of proofreading 	or 	editing 	in 	a
technical 	sense.
Cryer 	holds 	a Ph.D 	from Stanford 	University 	in 	the 	field 	of
sociology of 	education, 	a 	joint program 	in 	the 	schools of 	education
and 	business. 	His 	dissertation was 	in 	the 	area 	of decision making.
He 	testified 	that, 	in his opinion, 	the District's 	decision making
mechanism 	regarding 	policy matters 	was 	"hierarchical". 	In 	other
words, 	the 	superintendent 	tends 	to use 	individuals 	in a consultative
or 	advisory capacity, 	but he 	retains 	final decision making
authority. 	The 	board 	retains 	the 	ultimate 	responsibility 	for
establishing 	the 	basis 	for 	decision making. 	It 	establishes 	criteria
through 	its policy which 	are 	used 	in 	decision making.
Therefore, 	it 	is 	determined 	that 	neither 	the 	actual duties of
the 	administrative 	assistant, 	nor 	his 	role 	on 	the Management 	Team
make 	him 	a managerial 	employee 	within 	the 	meaning 	of 	section
3540.l(g).
Cryer 	directly 	supervises 	his 	executive 	secretary 	and 	the
supervisor of 	the print shop, 	as well 	as 	work 	study 	students. 	He
testified 	that 	he 	evaluates 	the 	executive 	secretary 	and 	the
duplicating people 	in the print shop. 	Therefore, 	it 	is concluded
that 	his 	duties 	are 	more 	akin 	to 	those 	of 	a 	supervisor 	under 	section
14

3540.l(m) .
Director 	of 	Instruction
Mr. 	James Cassini 	is presently 	the director of 	instruction. 	He
has 	the 	responsibility 	for 	assessing 	the 	District's 	instructional
needs 	and 	for 	recommending 	appropriate 	programs 	to meet 	these
needs. 	Cassini 	uses 	student 	test 	scores, 	parent 	input, 	staff 	input,
legislative mandate, 	and 	various 	committees 	in fulfilling his
responsibility.
The 	major 	responsibility of 	the 	director 	of 	instruction 	is 	the
development of 	the 	curriculum. 	Cassini 	chairs a 	curriculum
committee, 	which 	is 	made 	up of one 	teacher 	from each 	school 	and 	the
president 	of 	the 	employee 	organization 	which 	represents 	the
teachers. 	The 	individual 	schools 	select 	their 	representative. 	It
is 	the 	responsibility of 	the 	committee 	to 	develop a basic 	curriculum
for 	the District.
Once 	the 	committee 	has 	articulated 	a curriculum 	it 	is 	presented
to 	the 	administrative 	staff, 	the management 	team, 	the 	superintendent
and 	then 	to 	the 	board 	for 	final approval. 	However, 	under 	the
present decentralization of 	the District, 	schools may, 	at 	the 	local
level, 	establish 	their 	own 	curriculum 	in the 	basic 	skills 	area. 	In
other 	words, 	there exists 	some discretion at 	the 	local 	level 	to
deviate 	from 	the 	District's 	policy 	and 	determine 	the 	specific
content of 	curriculum in 	the basic 	skill 	areas, 	such as 	reading.
In 	regard 	to 	the 	selection 	of 	educational materials 	which 	are 	to
be 	used 	in classrooms 	and 	libraries, 	the 	following procedure 	is
15

used. 	The 	State 	Board 	of 	Education 	has 	a 	textbook 	review committee
which 	provides 	a 	catalog 	from which 	educational 	materials 	approved
by 	the 	state 	board may be 	selected 	by 	the 	local 	school district.
Local 	school 	districts 	are 	given 	a credit 	allocation 	from Sacramento
for 	the 	purchase 	of 	textbook materials 	from 	the 	catalog.
Each 	year 	Cassini 	establishes 	a committee, 	similar 	to 	the
curriculum committee, 	to 	review 	the 	approved materials. 	Each 	school
in 	the District 	is 	represented 	on 	the 	committee. 	Additionally, 	the
District provides 	other means 	by 	which 	staff members 	can 	review
educational materials 	and 	make 	recommendations 	as 	to which 	materials
should be 	selected. 	For 	example, 	the District 	held 	a 	science 	review
where 	teachers 	on 	the 	committee 	and 	others 	could 	review 	science
materials 	and make 	recommendations 	for 	selection 	based 	on 	the
students' 	reading level and content of the material. 	Also, 	there 	is
a 	county 	resource 	center 	where 	all 	state 	approved materials 	are
available 	for 	review, 	and 	the 	District provides 	substitute 	time 	for
staff members 	to 	review the materials 	and make 	recommendations. 	In
accordance 	with 	the 	District's 	decentralization policy, 	no one
particular 	series of materials 	is 	recommended, 	though 	the 	committee
may make 	recommendations 	as 	to 	basic materials.
The 	credit 	allocation 	for 	purchasing 	these materials 	is 	also
decentralized. 	It 	is 	based 	on 	enrollment, 	and 	each 	school 	receives
a 	set 	amount per 	child. 	The principals 	are made 	aware of 	this
amount 	and 	the 	individual 	school 	submits 	its 	order 	for 	materials 	to
Cassini, 	who consolidates 	the 	orders 	and 	forwards 	them 	to
Sacramento. 	Cassini's 	office 	then 	receives 	the materials 	and 	is
responsible 	for 	distribution. 	This 	decentralized 	process 	has 	been
16

used 	in 	the District 	for 	approximately 	five 	or 	six years. 	Under
this 	process, 	the 	selection 	for 	educational materials 	for 	classroom
use 	does 	not 	have 	to be 	approved 	by 	the 	board.
After 	policy 	has 	been 	adopted 	by 	the 	board, 	Cassini, 	as 	director
of 	instruction, 	has 	the 	responsibility 	for 	administering 	the
programs. 	He 	issues directives, 	meets with staff, 	and provides
interpretation 	for 	ambiguities 	which may 	arise 	in 	the 	program.
Although 	the 	director 	of 	instruction 	has 	general 	responsibility
for 	the 	development of 	curriculum, 	he 	alone 	does 	not establish
policy 	in 	that 	area. 	The 	curriculum committee, 	which 	is made 	up of
elected members 	from 	each 	school 	and 	chaired 	by Cassini, 	develops
the 	curriculum 	in 	the 	first 	instance. 	It 	is 	then presented 	to 	the
superintendent 	and 	then 	to 	the 	board 	for 	final 	approval. 	The
curriculum 	is 	also 	presented 	to 	the 	administrative 	staff 	and 	the
Management Team. 	This 	procedure 	places 	considerable 	emphasis 	on 	the
committee 	approach. 	Moreover, 	under 	the 	District's 	decentralization
program, 	even after 	the board 	adopts 	a 	general 	curriculum, 	schools
may, 	at 	their 	option, 	establish 	their 	own 	curriculum 	in 	the 	basic
skills 	area.
Thus, 	based on 	the 	foregoing, 	it 	is 	concluded 	that 	the 	director
of 	instruction 	does 	not possess 	significant 	responsibility 	for
formulating 	District 	policy 	in 	the 	area 	of 	curriculum development.
If 	anything, 	he 	is 	responsible 	for 	the overall 	administration of 	the
District's 	curriculum 	development 	program.
With 	respect 	to 	the 	selection of 	educational materials, 	the
committee 	approach 	is 	again used, 	and 	selections must 	come 	from an
approved 	list. 	Further, 	there 	exists 	considerable discretion with
17

the 	schools 	at 	the 	local 	level 	to make 	selections. 	Finally,
attending 	to 	the 	ordering, 	payment 	and 	distribution 	of 	these
materials 	is more 	in 	the 	nature 	of ministerial work 	than 	it 	is
policy 	making.
Based 	on 	the 	foregoing, 	it 	is 	concluded 	that 	the director of
instruction 	does 	not possess 	significant 	responsibility 	in 	the
formulating 	of 	District 	policy 	for 	selection 	of 	educational
materials. 	If 	anything, 	he 	is 	responsible for 	the overall
administration 	of 	the 	District's 	selection 	program.
Testimony 	also 	indicated 	that 	Cassini 	recommended 	increased
funding 	for 	mentally 	gifted 	minor 	students, 	and 	his 	recommendation
was 	favorably 	acted 	upon 	by 	the 	board. 	Cassini 	also 	drafted
guidelines 	for 	the 	superintendent's 	"new notions" 	program. 	These
duties 	are 	not 	sufficient 	to place 	him 	in 	the 	category of management
employee. 	The 	evidence 	presented 	by 	the 	District was 	not 	sufficient
to support 	its 	contention 	that 	these 	duties 	amount 	to 	significant
responsibility 	in 	the 	formulation 	of 	District 	policy.
Cassini 	testified 	in 	great 	detail 	regarding 	both 	the 	operation
of 	the 	administrative 	staff 	and 	Management 	Team meetings 	and 	his
role 	in each. 	He 	used examples of 	formulating District policy 	in
the 	areas of affirmative 	action, 	library selection policy, 	and
textbook 	selection policy 	to 	describe 	the 	process.
Cassini 	established 	a committee 	of parents 	and 	staff 	for 	the
purpose of 	developing 	an 	affirmative 	action policy. 	The 	committee,
which 	was 	functioning 	at 	the 	time of 	the 	hearing, 	is 	to draft 	a
tentative 	written policy 	and 	present 	it 	to 	the Management 	Team. 	The
Team will 	then 	recommend 	a policy, 	which 	is 	in compliance 	with
18

federal 	regulations, 	to the board.
In 	order 	to 	establish 	a 	tentative 	library 	selection 	policy
Cassini 	utilized 	a 	committee of 	librarians. 	To promulgate 	a
textbook 	selection 	policy Cassini 	used 	a 	committee 	of 	reading
resource 	specialists. 	There 	were 	discussions of 	these 	tentative
policies 	at Team meetings. 	Additionally, 	copies of 	the 	tentative
policies 	were distributed 	to 	the FMEA, 	CSEA, 	principals 	and 	other
administrative 	personnel 	in 	the 	District 	for 	input 	before 	the
proposals 	were 	finally 	forwarded 	to 	the 	board.
For 	example, 	the 	FMEA president 	and 	the 	FMEA board 	of 	Directors
met 	with 	the 	affirmative 	action 	committee 	and 	gave 	input 	to 	the
committee. 	That 	input was 	shared 	with 	the 	District's 	board 	of
education. 	Similarly, 	the 	committee met with a 	state 	consultant 	in
this 	field 	and 	solicited 	input, 	which 	will 	be meshed 	with 	other
information 	and 	ultimately 	sent 	to 	the 	board.
It 	is 	noteworthy 	that 	all 	of 	these 	tentative 	policies 	are
submitted 	to 	the 	administrative 	staff, 	as well as 	to 	the Management
Team, 	for 	input. 	Cassini 	said 	there 	is 	no difference 	between
tentative 	policy 	which may 	be 	developed 	in 	a 	Management 	Team meeting
and 	tentative 	policy 	which 	may 	be 	developed 	at 	an 	administrative
staff meeting. 	He 	said 	the Team 	has 	"the 	responsibility 	for 	getting
something 	down 	on paper". 	In conclusion, 	Cassini 	testified 	as 	to
the 	purpose 	behind 	getting 	input 	from 	these 	various 	sources
regarding 	any 	tentative 	policy.
So 	if 	someone 	isn't 	in a 	staff meeting 	they
have 	the 	opportunity 	to 	receive 	that 	tentative
policy 	and 	return 	it 	to 	the 	person who 	sort of 	has
the 	major 	responsibility 	for 	getting 	it moving.
19

And 	that person 	takes 	those 	items 	and 	brings,
incorporates 	that 	if 	they make 	sense 	or 	get
back 	to 	the person 	and discusses 	it 	with
them 	or 	the 	group 	of people 	and 	discusses
it, 	and 	then 	it gradually moves 	forward 	until
it comes 	to 	the board, 	at which time I have
felt 	an obligation 	and 	I 	know 	like 	Don 	(Don
Howlett, 	director 	of special services) 	and
others 	have 	felt 	the 	same obligation 	to be
able 	to point 	out 	to 	the 	board 	that 	not 	all
of 	the 	wording 	in 	this policy 	is mine 	but
that 	the 	teachers 	group 	felt 	that 	this 	needed
to be 	included, 	the 	classified 	staff 	felt
these 	things 	needed 	to be 	included, 	or 	the
administrative 	staff, 	you know, without
saying 	there 	was 	consensus 	of 	a whole 	staff
but 	there 	were members 	of 	that group 	that
felt 	this was 	important. 	Does 	that help?
f
Thus, 	the director of 	instruction, 	as a 	result of his 	role on
the 	Team, 	has 	the 	opportunity 	to 	have 	input 	into District policy 	and
to 	recommend 	tentative policy 	to 	the 	board. 	Since 	his 	substantive
input 	appears 	to be 	similar 	to 	that 	of employee 	organizations,
parents, 	and other 	administrative personnel, 	such as principals, 	it
is 	concluded 	that 	he 	does 	not 	possess 	significant 	responsibility 	for
formulation of 	policy.
Therefore, 	even 	if 	it 	is 	determined 	that 	the 	director 	of
instruction 	administers 	the 	District's 	program 	in 	the 	areas 	of
curriculum and 	selection 	of educational materials, 	it 	is 	concluded
that 	he 	is 	not 	a managerial employee 	because 	there 	is 	insufficient
evidence 	to 	show 	that, 	as a result of his 	overall duties or 	his 	role
on 	the 	Management Team, 	he 	has 	significant 	responsibility 	in
formulating District policy. 	In 	order 	to 	be 	a managerial 	employee,
one 	must 	have 	significant 	responsibilities 	for 	both 	the 	formulation
of 	District policy 	and 	administration 	of 	District 	programs. 	Lompoc
Unified School District, 	supra.
20

Cassini 	supervises 	traveling music 	teachers, 	librarians,
reading 	resource 	teachers, 	the 	coordinator 	of bilingual 	and 	cross
cultural 	education 	and 	his 	clerical 	staff. 	He 	has 	the 	authority 	to
effectively 	recommend 	termination of 	these 	employees, 	if 	necessary.
He 	also 	interviews 	applicants 	for 	these 	positions 	and 	evaluates 	the
employees who presently fill 	these positions. 	Therefore, 	it 	is
found 	that 	these 	duties 	are 	supervisory 	in 	nature 	and 	it 	is
concluded 	that 	he 	is 	a 	supervisory 	employee 	within 	the 	meaning 	of
section 3540.1(m).
Director 	of 	Special 	Services
At 	the 	time of 	the 	hearing 	this 	position 	was 	held 	by
Mr. 	Don Howlett. 	In general, 	the director 	of special 	services
administers 	federal 	or 	state 	programs 	for 	the 	education of mentally
or 	educationally handicapped 	students. 	This 	includes 	programs 	which
mainstream 	handicapped 	students 	into 	the 	District's 	regular
education 	program. 	The 	Director 	also 	administers 	categorically
funded programs, 	such 	as 	those 	for 	disadvantaged youth.
The 	specific 	categorically 	funded 	programs 	administered 	by Mr.
Howlett 	are as follows: 	(1) 	Title 	I, 	a 	federal program which
provides 	funds 	to 	areas 	with 	a 	high 	percentage 	of 	disadvantaged
youth, 	(2) 	Educationally Disadvantaged Youth 	(EDY), 	a 	state program
for 	educationally 	disadvantaged 	youth, 	and 	(3) 	Early Childhood
Education 	(ECE), 	another 	state 	educational program.
These 	programs 	all have 	mandated 	state 	or 	federal guidelines,
and 	they must 	be 	administered 	in 	accordance 	with 	these 	guidelines 	to
21

maintain 	funding. 	All 	categorically 	funded programs 	must 	go 	to 	the
board 	for 	approval.
Mr. 	Howlett 	also 	administers Public Law 94142, 	dealing with
handicapped 	students 	and personnel, 	and Assembly Bill 	65, 	which
concerns 	public 	school 	financing 	and 	consolidates 	programs 	like 	ECE
and 	aid 	for 	disadvantaged 	youth. 	The 	District 	has 	not 	yet 	adopted
any policies 	under 	Public Law 94142. 	In 	carrying out 	these
responsibilities, 	Mr. 	Howlett 	frequently works 	with parents 	and
staff 	committees.
Mr. 	Howlett's 	testimony 	in 	regard 	to 	the 	functioning of 	the
Management 	Team was 	essentially 	the 	same 	as 	that 	given 	by 	other
witnesses. 	He 	said 	the Team functioned 	in an 	informal manner, 	with
members 	being 	permitted 	to give 	input 	into 	the process 	in 	an 	attempt
to 	reach 	a consensus on any given 	issue. 	The 	fact 	that 	a consensus
could 	not be 	reached 	does 	not, 	however, 	prevent 	the board 	from
adopting 	a policy 	anyway. 	For 	example, 	Howlett 	said 	the 	Team could
not 	reach 	consensus 	on 	the 	extended 	day 	learning 	program 	(homework),
but 	the 	board 	adopted 	the 	program 	anyway.
Howlett 	also 	testified 	as 	to his 	role 	on 	the Team. 	He 	said 	that
the 	only 	policy 	he 	drafted 	and 	recommended 	to 	the 	Team concerned
programs 	which 	were 	state 	or 	federally 	funded, 	and 	the extent 	of his
recommendation 	was 	determined 	by 	the 	state 	or 	federal guidelines.
These 	were mandatory 	guidelines, 	which 	had 	to be 	followed 	if 	the
program was 	to 	receive 	continued 	funding. 	According 	to Howlett,
they did 	not 	afford 	him a great 	deal 	of 	flexibility 	in 	drafting 	a
program. 	Examples 	of areas 	in which 	he 	drafted 	such 	programs
include 	school 	site 	improvement 	councils, 	parent 	involvement
22

activities 	and 	special 	education programs.
Howlett 	believes 	he 	has 	input 	in 	the 	policy making machinery
within the District, 	but, 	according 	to his 	testimony, 	so do advisory
groups, 	board members 	and 	interested 	citizens.
In administering federal programs, 	state programs, 	or other
categorically 	funded 	programs, 	the 	director 	of 	special 	services'
main responsibility is 	to make 	sure 	that 	the programs operate 	within
federal and 	state guidelines. 	He 	is, 	therefore, 	required 	to
administer 	these 	various 	programs 	within 	the 	guidelines 	mandated 	by
the 	federal or 	state 	governments. 	By definition, 	then, 	he does not
possess 	significant 	responsibility 	in 	administering 	these 	programs;
his 	responsibility 	is 	considerably 	limited 	by 	the 	guidelines
themselves.
Even 	assuming 	that 	the 	director 	of 	special 	services 	possessed
significant 	responsibility 	for 	the 	administration of 	District
programs, 	he 	must 	also possess 	significant 	responsibility 	for 	the
formulation of 	District policy 	in 	order 	to 	fall 	within 	the 	section
3540.1(g) 	definition 	of management 	employee. 	The 	PERB has 	held 	that
an employee must 	do both 	in 	order 	to be 	a management employee.
Oakland 	Unified 	School District 	(3/28/77) 	EERB Decision No. 	15.
Since 	there 	is 	no 	indication 	that 	the 	director 	of 	special 	services
possessed 	significant 	responsibility 	for 	either 	the 	formulation 	of
District policy 	or 	the 	administration of 	District programs, 	he
cannot 	be 	considered 	a managerial 	employee.
Howlett supervises nurses, 	psychologists, 	speech therapists,
aides 	in special education classes, 	special education 	teachers, 	and
office 	staff. 	At 	least part of 	his 	supervisory 	duties 	involves 	the
23

evaluation of 	these 	employees. 	He 	also prepares 	a 	budget 	for 	his
area 	of responsibility. 	Therefore, 	it 	is 	concluded 	that his 	duties
are 	supervisory 	in 	nature within 	the meaning of 	section 	3540.1(m).
Co-ordinator 	of Bilingual 	and 	Cross 	Cultural 	Education
At 	the 	time of 	the 	hearing 	this position was 	held 	by Ms.
Henrietta 	Dominguez. 	Her 	main 	job 	responsibilities 	include
coordinating 	the 	bilingual program 	for 	the District, 	supervising 	the
District's 	community 	liaison 	program 	and 	insuring 	District
compliance 	with 	Title 	IX. 	More 	specifically, 	she 	assists 	individual
schools 	in 	administering 	their 	bilingual program by 	providing
inservice 	staff 	development 	programs 	for 	aides 	and 	bilingual
teachers. 	Basically, 	bilingual programs 	are 	developed 	in accordance
with 	state 	requirements 	and 	federal 	guidelines.
Ms. 	Dominguez prepared 	a grant 	proposal 	for 	the 	Indochinese
program. 	The 	request 	to prepare 	the proposal 	was made 	by 	the
superintendent 	to 	the 	office 	of 	the 	administrative 	assistant, 	who,
in turn, 	assigned 	it 	to Dominguez 	to prepare.
The 	District 	is 	a member 	of 	the 	San Jose 	area 	bilingual
consortium, 	a 	federally 	funded program, 	which 	is 	apparently geared
toward 	developing 	bilingual 	programs 	in 	the 	participating 	school
districts. 	Dominguez 	coordinates 	this program within 	the District,
but 	the 	assistant 	superintendent 	sits 	on 	the 	consortium 	advisory
board 	.
There 	is 	no 	evidence 	that 	her 	discretion 	or 	authority 	in
administering 	these 	programs 	went 	beyond 	the 	District's 	established
24

policy or 	the 	state 	or 	federal guidelines 	applicable 	to 	these
programs. 	Thus, 	it 	is 	concluded 	that 	she 	does 	not possess
significant 	responsibility 	in 	administering 	these 	programs. 	See
Lompoc Unified School District, supra, 	Decision No. 	13, 	where 	the
PERB 	found 	subject 	coordinators 	not 	to be managerial 	employees.
Additionally, 	the 	coordinator 	of bilingual 	and 	cross 	cultural
education 	acts 	basically 	as 	an expert 	in 	her 	particular 	field.
There 	was 	no 	evidence 	presented 	that 	she 	actually 	formulated
District policy. 	Any 	recommendations 	she made 	would 	have 	to be
channeled 	through 	the 	superintendent 	to 	the 	board, 	with 	possible
preliminary 	discussion 	at 	the management 	team meeting.
Furthermore, 	Ms. 	Dominguez 	testified 	that 	she 	never 	presented 	a
policy proposal 	to 	the 	Management Team. 	She 	said 	that members 	of
the 	Team have 	input 	into District policy, 	but 	so do 	teacher
organizations, 	the 	community 	and 	anyone 	who wants 	to comment 	on 	a
proposed 	policy at 	a public meeting. 	In her 	opinion, 	the main
responsibility of 	the 	Team members 	is 	to provide 	leadership 	in 	a
given 	area, 	but 	the 	Team members 	do 	not 	have 	more 	influence 	than
these 	other 	groups.
Based 	on 	the 	foregoing, 	it 	is 	found 	that 	the 	coordinator 	of
Bilingual 	and 	Cross-Cultural 	Education 	does 	not 	possess 	significant
responsibility 	in 	either 	formulating 	District policy 	or
administering District programs. 	Therefore, 	it 	is concluded 	that
she 	is 	not 	a managerial 	employee 	within 	the 	meaning 	of 	section
3540.l(g).
As 	indicated, 	Ms. 	Dominguez supervises a secretary, 	the
District's 	bilingual 	resource 	teachers, 	a District English as 	a
25

Second 	Language 	resource 	teacher, 	and 	a 	clerk 	typist 	and 	four
instructional 	aides 	from 	the 	Indochinese 	program. 	She 	evaluates 	all
of 	these 	employees 	with 	the 	exception of 	teachers 	assigned 	to 	a
particular 	school 	site. 	She 	also 	formulates 	a proposed 	budget 	for
her 	area of 	responsibility. 	Therefore, 	it 	is concluded 	that 	she 	is
a 	supervisory employee 	within 	the 	meaning 	of 	section 	3540.1(m).
Principals
Mr. 	Cotrell, 	a principal, 	testified 	that principals sometimes
attend 	Management Team meetings, 	and 	he 	has 	attended meetings 	on
occasion. 	With 	respect 	to 	the 	role principals play, 	he 	said 	the
main 	purpose 	in 	attending 	a Team meeting 	is 	to afford 	the 	individual
the 	opportunity to give his 	or 	her 	input on 	a given 	subject. 	It 	is
not 	uncommon 	for principals 	to 	submit 	"impact 	statements" 	regarding
what 	effect 	a given 	proposal 	would 	have 	on 	their 	school.
The 	weight 	given 	to principal's 	input 	was 	also 	described 	by
Cotrell. 	His 	opinion, 	which 	was 	corroborated 	by 	several other
witnesses, 	indicates 	that 	the 	input of 	teachers, 	parents 	and 	the
entire 	school 	community has 	the 	same 	influence 	on 	policy 	as 	that
offered 	by 	administrators 	who 	sit 	on 	the Team.
Further, 	there 	were 	no 	specific 	examples 	offered 	which 	would
support 	the 	District's 	position 	that principals 	have 	a 	significant
responsibility 	in either 	the 	formulation 	of 	District policy 	or 	the
administration of District programs. 	Therefore, 	it 	is concluded
that 	principals 	are 	not 	managerial 	employees 	within 	the 	meaning 	of
section 3540.l(g).
26

B. 	The Confidential Employees 	Issues
Government 	Code 	section 	3540.1 (c) 	defines 	a confidential
employee as 	follows:
(c) 	'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.
Each 	position 	at 	issue 	will 	be 	considered 	in 	view of 	the
criteria 	set 	forth 	in 	this 	section 	and 	applicable 	PERB 	and 	NLRB
precedent.
1. 	The Certificated Unit
Principals
There 	are 	eleven principals 	in 	the 	District. 	Dr. 	Ralph McKay,
the assistant 	superintendent, 	is 	the District's 	chief 	negotiator.
Since 	1973 	he 	has 	used 	six 	principals 	on 	the 	District's 	team during
the 	meeting 	and 	conferring 	with 	non-supervisory 	certificated
employees. 	Those 	six 	principals 	and 	the 	meetings 	in which 	they
participated 	are 	as 	follows. 	John 	Jorgenson participated 	in 	about
25 	sessions 	in 	1973. 	Jim Abbott 	has 	been 	on 	the 	team every year
since 	1973, 	missing 	only a 	few 	sessions. 	The 	same 	is 	true of Ken
Van Otten. 	Ken Rice 	served 	on 	the 	team 	for 	the 	1976-77 meetings,
as 	well as 	on 	the 	current 	team. 	Ann Huddleston 	served 	on 	the 	team
during 	the 	1977 	summer 	meetings 	and 	continues 	to 	serve 	on 	the
current 	team.
The 	District's 	approach 	to 	conducting 	negotiations 	is 	as
follows. 	The 	board 	establishes 	guidelines 	in executive 	session 	as
27

to what 	the 	limitation will be 	in 	any given 	subject 	area. 	This
executive 	session 	is 	attended 	by 	board members, 	the 	superintendent,
the 	assistant 	superintendent, 	and 	sometimes 	the 	business manager.
The 	District's 	initial proposals 	are 	drafted 	by 	only 	the
superintendent 	and 	the 	assistant 	superintendent. 	No 	others 	are
involved 	in drafting 	the 	initial proposals. 	They 	are 	usually 	only
about 	one 	page 	in 	length 	and must 	be 	approved 	by 	the 	board.
During 	the 	course 	of negotiations, 	the 	assistant 	superintendent,
who 	is 	the chief 	negotiator 	for 	the District, 	has 	the 	sole 	authority
to modify proposals 	and make 	counterproposals, 	but 	he 	cannot 	go
beyond 	the 	Board's 	established 	guidelines. 	The 	board may modify 	its
guidelines 	as 	negotiations progress.
Other 	members of 	the 	District's 	negotiating 	team 	are 	not 	told
the 	extent 	of 	the 	Board's guidelines 	at 	the 	outset 	of 	negotiations.
However, 	they 	are 	told of 	the 	guidelines 	in a given 	area 	as
negotiations 	develop.
Dr. 	McKay 	testified 	as 	to 	the 	reasons 	he 	chose principals 	to 	sit
on 	the 	negotiating 	team, 	the 	criteria 	he 	used 	in 	selecting 	the
principals, 	and 	the 	role 	they played 	on 	the 	team.
With 	respect 	to 	the 	reasons 	he 	wanted 	principals 	on 	the 	team,
McKay 	said:
I 	was 	looking 	for 	input 	which 	would 	not 	erode
management 	prerogatives. 	I was 	looking 	for
assistance 	in 	drafting 	contract 	language 	that
would 	not 	adversely 	affect 	the 	principal's
administration 	of 	the 	school 	and 	really 	relying
on 	their 	general expertise 	to 	insure 	that 	we
didn't 	include 	something 	in 	the 	contract 	that
would 	have 	an 	adverse 	impact 	on 	the 	District.
In 	selecting 	the 	principals, 	McKay 	said 	he 	considered 	prior
experience 	in 	the District, 	experience 	in working with 	the
28

memorandum of 	understanding 	that 	the 	District 	had 	with 	employees
prior 	to 	the 	enactment 	of EERA, 	demonstrated 	success 	as 	a principal,
effective 	administration of 	current policies 	and 	contracts, 	and
-
insight 	into 	the 	collective 	bargaining 	processes.
McKay 	described 	the 	principals' 	participation 	as 	follows:
Participation 	includes 	drafting 	contract
language, participating in caucuses, presenting,
(sic) 	acting as 	spokesperson 	at 	the 	table. 	I
would 	say 	full participation.
McKay 	further 	described 	the 	process 	by 	which 	a principal 	would
be 	involved 	in 	drafting 	contract 	language:
Q. 	And 	then 	that 	person 	would 	draft 	it 	for 	you,
is 	that correct?
A. 	What 	has 	to be 	understood 	that 	it's 	a
collaborative 	effort 	in 	attempting 	to 	reach
agreement. 	We may put down 	some 	language 	on 	the
chalk 	board 	or 	we may write 	it 	down on paper 	and
then 	collaboratively 	work 	on 	the 	wording 	so 	that
it meets what our 	intent 	is.
Q. 	When you 	say collaborative 	effort, 	who do you
mean?
A. 	I mean 	the 	members 	of 	the 	negotiating 	team.
Robert Cotrell, 	a principal who 	serves on the District's
negotiating 	team, 	said 	the 	principals 	"filled 	in when 	others 	got
tired." 	By 	this 	he meant 	that 	the principals 	would 	watch 	people 	on
the 	other 	side 	of 	the 	table 	to determine 	what 	their 	reaction 	to
certain proposals 	or 	arguments might be. 	Also, 	he 	said 	the
principals 	would 	"brainstorm" 	on 	ideas 	which 	came 	up 	during 	the
course of 	negotiations, 	in 	addition 	to 	serving as a 	resource 	to
Dr. 	McKay 	regarding 	the 	impact 	certain 	teacher 	proposals might 	have
29

on the 	schools.
Cotrell's 	testimony 	regarding 	his 	role 	is 	somewhat
contradictory. 	In 	regard 	to 	the 	1976 	negotiations 	in which 	he
participated, 	he 	said 	that 	McKay 	never 	told 	him what 	the 	District
had 	authorized 	him 	(McKay) 	to offer 	in 	the 	area of 	salary 	and 	fringe
benefits. 	He 	said 	the 	same 	thing 	about 	the 	1977 	reopener
negotiations 	on compensation 	and 	fringe benefits. 	Further, 	he
testified 	that 	he 	didn't 	feel McKay 	trusted 	the 	principals 	enough 	to
tell 	them 	anything 	that 	"might be 	dangerous." 	However, 	in 	response
to 	a question 	concerning 	the 	confidential 	nature 	of 	the 	information
he 	came 	in contact with 	during 	negotiations, 	he 	said:
I 	think we 	all 	knew by 	the 	nature 	of what 	we 	were
doing 	that 	we 	should 	not 	discuss 	what 	was 	going
on 	in 	the 	sessions 	with 	the 	people 	on 	the 	other
side of 	the 	table.
Thus, 	Cotrell's 	testimony 	indicates 	that, 	although 	he 	and other
principals 	who participated 	in 	the 	negotiations 	were 	not privy 	to
the 	District's 	position on 	these 	key 	issues, 	nevertheless 	they 	knew
they 	should 	not discuss 	the 	sessions 	with 	those 	on 	the 	other 	side 	of
the 	table.
McKay 	said 	principals 	were 	not 	privy 	to 	the 	District's 	position
on all 	types 	of compensation, 	leaving open the question of
exactly what 	types 	of 	compensation 	information 	the 	principals 	were
privy 	to. 	However, 	McKay also 	testified that principals 	on the
negotiating 	team were 	privy 	to 	information 	concerning 	the 	District's
position on grievance procedures, 	evaluations, 	discipline 	and 	"all
the 	terms 	of 	the 	collective 	bargaining 	agreement 	that might 	contain
confidential 	information."
30

Based 	on 	the 	foregoing, 	it 	is 	concluded 	that 	the principals who
presently 	sit 	on 	the 	District's 	negotiating 	team 	and 	participate 	in
the 	negotiations 	with 	nonsupervisory 	certificated 	employees 	are
confidential 	employees.
There 	is 	no doubt 	that 	the 	principals 	are 	not 	involved 	in 	the
negotiations 	to 	the 	same extent 	as 	the 	assistant 	superintendent.
Much 	less 	information 	is 	available 	to 	them, 	and 	they have 	no
authority 	to make 	or modify proposals 	or 	counter proposals.
However, 	these principals 	are 	an 	integral part of 	the 	District's
negotiating 	effort. 	They 	actually 	sit 	at 	the 	bargaining 	table 	and
participate 	in negotiations 	as well 	as 	in caucuses. 	Indeed, 	the
very 	purpose of 	a 	caucus 	is 	to 	enable 	one 	party 	to discuss matters
involving 	the 	negotiations 	away 	from 	the 	other. 	They 	assist 	in 	the
drafting 	of 	contract 	language 	for 	the 	purposes 	of 	developing
language 	which 	reflects 	the 	District's 	intent 	in 	a particular
proposal. 	Through 	all of 	this, 	the principals 	come 	in 	contact with
information 	which 	reflects 	the 	District's position 	on 	a number 	of
negotiable 	items.
These 	principals 	have 	substantial 	involvement 	in 	the 	negotiating
process. 	In 	fact, 	they 	are 	chosen 	to participate precisely because,
among other 	things, 	they have 	some 	insight 	into 	that process. 	It
seems 	impossible 	to play 	such a 	role 	in 	negotiations 	and 	not 	come
into 	contact with 	information 	which, 	if 	made 	public prematurely,
might 	jeopardize 	the 	District's 	ability 	to 	negotiate 	with 	employees
from an 	equal posture.
In conclusion, 	it 	is 	noted 	that principals who 	serve on 	the 	team
were 	not 	randomly 	selected. 	They were 	chosen because 	of 	their
31

performance, 	experience 	and 	insight 	into 	the 	collective 	bargaining
process. 	Jim Abbott 	and 	Ken Van Otten 	have 	been 	on 	the 	negotiating
team every year 	since 	1973. 	Bob Cotrell 	served 	on 	the 	team 	during
1976-77 	and 	is 	presently 	on 	the 	team. 	Ann Huddleston 	served 	on 	the
team for 	the 	1977 	summer 	negotiations 	and 	is presently 	on 	the 	team.
Since 	these 	four 	principals 	were 	specifically 	selected 	and 	are
presently 	on 	the District's 	team, 	and 	since 	their 	involvement 	in 	the
bargaining process 	as described 	above 	is 	substantial, 	not 	to 	find
them 	confidential 	employees 	would 	deny 	the 	District 	a 	small 	nucleus
of 	employees 	to assist 	in 	its 	employer-employee 	relations. 	Sierra
Sands Unified 	School District 	(10/14/76) 	EERB Decision No. 	2.
Therefore, 	these 	four 	principals 	are 	found 	to 	be 	confidential
employees 	within 	the meaning 	of 	section 	3540.l(c)
As 	stated, 	there 	are 	eleven principals 	in the 	District. 	Six
different 	principals 	have 	served 	on 	the 	negotiating 	team 	since
1973. 	Of 	these 	six, 	John Jorgenson 	served 	on 	the 	team 	for 	only 	the
1973 	negotiations, 	and Ken Rice 	served 	on 	the 	team for 	only 	the
1976-77 	negotiations. 	Since 	these 	two 	only 	served 	on 	the 	team 	for
one 	year 	and 	are 	not presently 	on 	the 	team, 	they 	are 	not 	found 	to be
confidential 	employees.
Since 	there 	was 	no 	evidence 	presented 	that 	the 	other 	five
principals 	ever 	served 	on 	the 	team, 	they 	are 	not 	found 	to 	be
confidential employees. 	Also, 	since 	there 	was 	no evidence 	presented
that Jorgenson, 	Rice or 	the other 	five principals otherwise 	have, 	in
the 	regular 	course 	of 	their 	duties, 	access 	to 	information dealing
with 	the 	District's 	employer-employee 	relations 	they 	are 	not 	found
to 	be confidential employees.
32

The Teamsters, 	in 	its brief, 	argue 	that 	the present 	case
presents 	the 	confidential 	employee 	issue 	in 	a context 	totally
different 	from 	that 	in 	which 	the 	PERB 	has 	previously 	considered 	the
issue. 	In 	the 	usual case, 	it 	is 	argued 	that 	an 	employee 	should 	be
excluded 	from a proposed 	unit because 	he 	or 	she 	has 	access 	to
confidential 	information 	concerning 	the 	District's 	employer-employee
relations 	with 	employees 	in 	the proposed 	unit, 	as 	opposed 	to 	having
access 	to 	confidential 	information 	concerning 	a 	unit 	other 	than 	the
proposed 	unit.
The 	union 	argues 	that 	an 	entirely 	different 	issue 	is 	presented
when 	the 	District maintains 	that 	a 	supervisory 	employee 	should 	be
excluded 	from 	a 	proposed 	unit 	of 	supervisory 	employees 	because 	that
supervisor 	has 	access 	to 	information 	which 	concerns
employer-employee 	relations 	with 	non-supervisory 	employees.
According 	to 	the 	union, 	the present 	case 	does 	not present 	the 	same
conflict 	of 	interests 	problems 	which 	would 	arise 	if 	a 	supervisory
employee 	had 	access 	to 	confidential 	information 	concerning 	the
employer-employee 	relations 	of 	employees 	in 	a proposed 	supervisory
unit.
In Fremont Unified 	School 	District 	(12/16/76) 	EERB Decision No.
6, 	the 	PERB discussed 	a 	similar 	situation. 	Fremont 	concerned 	a
situation 	where 	the 	certificated 	personnel 	office 	assistant 	was
declared 	a 	confidential 	employee, 	although 	the 	unit 	petitioned 	for
was 	a 	classified 	one. 	She 	worked 	for 	the 	assistant 	superintendent
of personnel, 	who 	had 	functions 	relating 	to both 	certificated 	and
classified 	negotiations 	and 	personnel 	matters. 	The 	PERB 	stated:
Even 	though 	the 	activities 	of 	the
Certificated 	Personnel 	Office 	Assistant
33

relate 	only 	to 	certificated 	employees,
we 	conclude 	that 	she 	is 	a confidential
employee. 	The 	language of Government
Code 	section 	3540.l(c) 	does 	not
distinguish 	between 	information
relating 	to 	certificated 	employees 	and
information 	relating 	to 	classified
employees. 	The 	employer 	cannot be
expected 	to 	rigidly 	segregate
negotiating 	information 	so 	that 	it 	is
applied 	in 	only 	one 	negotiating 	arena.
Information 	or 	data 	pertinent 	to one
series of 	negotiations 	will often 	be
applied 	in the 	other 	series, 	especially
in 	the 	area of 	the 	budget.
In 	support 	of 	this 	position 	the 	PERB 	said 	"we 	believe 	the
employer 	has 	the 	right 	to expect 	loyalty 	from a 	nucleus of 	employees
in 	matters 	of 	employer-employee 	relations 	without 	regard 	to whether
the 	classified 	employee 	works 	with 	information 	relating 	apparently
only 	to 	certificated 	or 	classified 	negotiations."
This 	reasoning 	is 	equally applicable 	to 	the present 	case. 	The
District 	cannot 	be 	expected 	to 	rigidly 	segregate 	negotiating
information 	so 	that 	it 	applies 	only 	to 	supervisory 	or 	nonsupervisory
negotiations. 	Further, 	the District 	is 	entitled 	to expect 	loyalty
from a 	small 	nucleus 	of 	employees 	on matters 	concerning
employer-employee 	relations. 	These 	principles 	would 	be 	severely
undermined 	if 	the positions 	at 	issue 	were 	not 	declared 	confidential
because 	they 	are 	supervisory 	employees 	who 	participate 	in 	the
District's 	negotiation 	with 	nonsupervisory employees. 	Therefore,
the 	union's 	argument 	that 	these 	employees 	should 	not 	be 	declared
confidential 	for 	this 	reason 	is 	rejected.
34

1. 	The Classified Unit
Manager 	of 	Maintenance 	and 	Operations
Mr. 	Mazzotti 	sits 	on 	the 	District's 	negotiating 	team which
negotiates 	with 	non-supervisory 	classified 	employees 	because 	he 	has
a 	considerable 	working 	knowledge 	of 	District 	policies 	as 	they 	affect
classified 	employees. 	He 	has 	participated 	in 	these 	negotiations 	for
the past 	two years.
The 	assistant 	superintendent, 	the 	superintendent, 	and 	the 	board
are 	the parties who 	actually prepare 	the District's proposals, 	and
Mazzotti 	doesn't get 	a copy 	until 	they 	are 	made 	public. 	His 	role 	is
limited 	to 	reacting 	to proposals made 	by 	non-supervisory classified
employees. 	Even 	after 	the 	negotiations 	begin, 	Mazzotti 	has 	no
significant 	role 	in modifying 	the proposals. 	Although 	he 	has 	been
told what 	the 	District's 	compensation package 	is, 	he 	learns 	this
late 	in 	negotiations.
If 	this 	were 	the 	extent 	of Mazzotti's 	participation 	in 	the
bargaining process, 	there 	would 	be 	considerable 	doubt 	that 	he 	was 	a
confidential employee. 	There 	is minimal chance 	that 	this 	role 	and
the 	information 	he 	received 	as 	a 	bargaining 	team member 	would 	in 	any
way 	jeopardize 	the 	District's 	ability 	to 	negotiate 	with 	employees
from an equal posture. 	Moreover, 	since Mazzotti 	does 	not 	receive
copies 	of 	the 	District's 	proposals 	until 	they 	are 	made 	public 	and
since 	he 	does 	not 	become 	aware 	of 	the 	District's 	compensation
package 	until 	late 	in the 	negotiations, 	there 	is 	little 	chance 	that
the District's 	position could have been made public 	prematurely. 	Also
he 	participates 	in 	the 	District's 	caucuses 	during 	the bargaining
process 	and actually 	assists 	in 	the 	drafting of 	contract 	language
35

during 	these 	caucuses. 	It 	would be 	virtually 	impossible 	for 	an
individual 	to participate 	in 	the 	bargaining 	process 	on 	behalf 	of 	the
employer 	in 	such 	a manner 	without 	becoming 	aware 	of 	the 	employer's
position 	on certain 	issues 	early 	in 	the 	negotiations, 	or 	at 	a
crucial point 	in 	the 	negotiations. 	For 	example, 	the 	very purpose of
a caucus 	is 	to 	enable 	each 	team 	to 	discuss matters 	relating 	to 	the
negotiations 	away 	from 	the 	other. 	In 	fact, 	Mazzotti 	did 	testify
that 	he 	became 	aware 	of 	the 	District's 	position 	on 	binding
arbitration 	early 	in 	one 	set of 	negotiations.
Given 	the 	extent 	of Mazzotti's 	involvement 	in 	the 	bargaining
process, 	not 	to 	find 	him a 	confidential 	employee 	would 	effectively
deprive 	the 	District 	of 	the 	nucleus 	of 	individuals 	needed 	to 	assist
it 	in 	its 	program of 	employer-employee 	relations. 	Fremont Unified
School District 	(12/16/76) 	EERB Decision No. 	6.
Therefore, 	it 	is 	found 	that 	the manager of maintenance 	and
operations 	is 	a confidential 	employee 	within 	the 	meaning 	of 	section
3540.1(c) 	of 	the EERA because he participates 	in 	negotiations 	to 	the
extent 	described 	above.
Business 	Office 	Supervisor
Since 	March of 	1978, 	the position of business office 	supervisor
has been 	held by Ms. 	Glenys Struzan. 	The 	business 	office 	includes
the 	payroll 	department, 	the 	accounts payable 	department 	and 	the
special projects 	department. 	Ms. 	Struzan 	supervises 	approximately
eight 	clerical employees who work 	in 	the 	business office. 	She
evaluates 	them and 	plays 	a 	significant 	role 	in hiring 	and
36

discharging 	these 	employees.
There 	have 	been 	no 	negotiations 	since 	Ms. 	Struzan 	took over 	the
position of 	business 	office 	supervisor. 	Her 	testimony 	regarding 	her
role 	in negotiations 	refers 	to 	a period 	of 	time when 	she 	was 	an
account 	clerk 	III 	in 	the 	business office 	and 	there 	was 	only 	an
acting 	business 	manager 	with 	no 	business 	office 	supervisor. 	The
negotiations 	in which Ms. 	Struzan 	said 	she participated 	occurred
between 	the 	District 	and 	the 	non-supervisory 	certificated 	and
classified 	employees 	in 	the 	District. 	Even 	assuming 	Struzen's
account clerk 	III duties, 	as 	they relate 	to negotiations, 	are
continued 	in 	her 	present position of 	business office 	supervisor, 	she
is 	not 	a confidential employee.
The 	business 	office 	supervisor 	is 	involved 	in 	the 	costing 	out of
proposals 	for 	negotiations, 	including 	those which 	deal 	with
salaries, 	medical and 	other 	fringe 	benefits, 	and 	reclassification of
employees. 	The 	computations 	are based 	on 	the percentage 	figure
given 	to her 	by 	the 	assistant 	superintendent, 	and 	involve 	the 	use of
the District's 	budget. 	Anyone 	who has 	access 	to 	the 	District's
budget, 	a public document, 	can 	compute 	the 	same 	figures 	at 	any given
percentage 	with 	reasonable 	accuracy.
The 	business 	office 	supervisor 	also prepares 	scattergrams, 	which
show 	the 	number 	of 	certificated 	employees 	on 	each 	range 	and 	step of
the 	salary 	scale. 	She 	uses 	the 	salary 	scale 	and 	payroll 	records 	to
prepare 	a 	scattergram.
The 	evidence 	did 	not 	show 	that 	the 	business 	office 	supervisor
did 	any more 	than 	this 	simple mechanical 	cost 	calculation. 	"The
mechanical 	act 	of 	calculating 	costs 	does 	not 	necessarily 	provide
37

clerical 	support 	personnel 	with 	confidential 	knowledge 	pertaining 	to
the 	employer's position on 	bargaining matters 	or 	other 	information
relating 	to 	the 	employer's 	employer-employee 	relations." 	Sierra
Sands Unified School District, 	supra. 	The 	business office
supervisor 	appears 	to 	compile 	existing data, 	rather 	than 	evaluate 	or
analyze 	the 	data 	for 	negotiations. 	Since 	the 	compilation of 	this
data 	can 	be 	accomplished 	by 	other 	employees 	under 	the 	business
office 	supervisor's 	supervision 	by use of public 	documents, 	this
does 	not 	make 	the 	business 	office 	supervisor 	a confidential
employee. 	San Diego Community College District, 	(9/16/77) 	EERB
Decision No. 	28.
The 	business 	office 	supervisor 	also 	testified 	that 	she 	comes 	in
contact with personnel 	information 	relating 	to 	salaries, 	fringe
benefits 	and 	budget. 	Regular 	contact with 	this 	type 	of personnel
information, 	standing 	alone, 	does 	not 	necessarily 	relate 	to the
employer's 	employer-employee 	relations. 	San Diego Community College
District, supra.
Therefore, 	it 	is 	found 	that 	the 	business 	office 	supervisor 	is
not 	a 	confidential 	employee 	within 	the meaning of 	section 	3540.1(c)
of 	the 	EERA.
The 	business 	office 	supervisor 	supervises 	approximately 	eight
clerical employees 	who work 	in 	the 	business office. 	She 	evaluates
them and 	is 	involved 	in 	the 	hiring 	and 	discharge 	process.
Therefore 	it 	is 	concluded 	that 	she 	is 	a 	supervisor 	within 	the
meaning of section 3540.l(m).
C. 	The Appropriate 	Supervisory Unit:
The union 	requested 	recognition 	for 	a 	unit 	of 	supervisory
38

certificated 	employees 	and 	a 	separate 	unit 	of 	supervisory 	classified
employees. 	The 	District 	denied 	recognition 	in both petitions,
asserting 	that 	several 	positions 	were 	either 	managerial 	or
confidential. 	Additionally, 	the 	District 	asserted 	that 	the
classified 	unit 	was 	not 	appropriate 	because 	it 	was 	too 	small. 	The
petitioned 	for 	classified 	supervisory 	unit 	included 	four 	employees.
The 	petitioned 	for 	supervisory 	certificated 	unit 	included
approximately 	eighteen 	employees.
The 	union 	takes 	the 	position 	that 	both 	of 	the 	petitioned 	for
units 	are 	appropriate 	separate 	units. 	Alternatively, 	the 	union
takes 	the 	position 	that 	the 	EERA does 	not 	preclude 	a 	single 	unit
including 	both 	certificated 	and 	classified 	supervisory 	units. 	This
latter 	position 	will 	be 	addressed 	first.
Section 3545(b) 	(2) 	and 	(3) 	provide:
(2) 	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.
(3) 	Classified 	employees 	and 	certificated
employees 	shall 	not 	be 	included 	in 	the 	same
negotiating 	unit.
These 	subdivisions 	raise 	the 	question 	of 	whether 	an 	appropriate
unit 	for 	supervisory 	employees 	can 	include 	both 	certificated 	and
classified 	supervisors, 	under 	subdivision 	(b) 	(2), 	or, 	on the other
hand, 	whether 	subdivision 	(b) 	(3) 	prohibits 	an appropriate 	unit 	from
including 	both 	certificated 	and 	classified 	employees. 	The 	PERB 	has
yet 	to directly 	address 	these 	questions. 	See 	Jefferson Union 	High
Schoo1 	District 	(1/4/79) 	PERB Decision No. 	83.
39

The 	basic 	purpose 	of 	the 	EERA and 	the 	scope 	of 	representation
under 	the 	EERA, 	as 	set 	forth 	in 	sections 	35402 and 3543.23
2section 	3540 	states 	in 	relevant 	part:
3540. 	It 	is 	the 	purpose of 	this
chapter 	to 	promote 	the 	improvement 	of
personnel 	management 	and 	employer-employee
relations 	within 	the 	public 	school 	systems
in 	the 	State 	of 	California 	by providing 	a
uniform 	basis 	for 	recognizing 	the 	right 	of
public 	school 	employees 	to 	join
organizations of 	their own choice, 	to be
represented 	by 	such 	organizations 	in 	their
professional 	and 	employment 	relationships
with public 	school employers, 	to 	select 	one
employee 	organization 	as 	the 	exclusive
representative of 	the 	employees 	in 	an
appropriate 	unit, 	and 	to 	afford 	certificated
employees 	a voice 	in 	the 	formulation of
educational 	policy.
3Section 	3543.2 	states:
3543.2 	The 	scope of 	representation
shall 	be 	limited 	to matters 	relating 	to
wages, 	hours of employment, 	and other 	terms
and 	conditions 	of employment. 	"Terms 	and
conditions of employment" 	mean 	health 	and
welfare 	benefits 	as 	defined 	by 	Section
53200, 	leave, 	transfer 	and 	reassignment
policies, 	safety conditions of employment,
class 	size, 	procedures 	to be used 	for 	the
evaluation of employees, 	organizational
security pursuant 	to Section 	3546, 	and
procedures 	for 	processing 	grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 3548.8. 	In addition, 	the exclusive
representative 	of 	certificated 	personnel 	has
the 	right 	to 	consult on 	the 	definition 	of
educational objectives, 	the 	determination of
the 	content 	of courses 	and 	curriculum, 	and
the 	selection of 	textbooks 	to 	the extent
such 	matters 	are 	within 	the 	discretion 	of
the 	public 	school 	employer 	under 	the 	law.
All 	matters 	not 	specifically 	enumerated 	are
reserved 	to 	the 	public 	school 	employer 	and
may 	not 	be 	a 	subject of meeting 	and
negotiating, 	provided 	that 	nothing 	herein
may 	be 	construed 	to 	limit 	the 	right of 	the
public 	school 	employer 	to consult 	with 	any
employees 	or 	employee 	organization 	on 	any
matter 	outside 	the 	scope of 	representation.
40

respectively, 	when considered 	in 	conjunction 	with 	the 	appropriate
unit 	criteria 	in 	section 	3545(a)4 requires 	a 	determination 	that
the 	supervisory 	units 	in question be 	separate.
Section 	3540 	sets 	forth 	the 	basic purpose of 	the 	EERA,
recognizing 	the 	right of public 	employees 	to 	join 	and 	be 	represented
by 	the 	employee 	organization of 	their 	choice. 	"Implicit 	in 	this
statement 	of 	legislative 	intention 	is 	the 	notion 	that 	the 	employees
will 	have 	the 	ability 	to 	choose 	an 	organization 	which 	is 	an
effective 	representative. 	An 	effective 	representative 	will
generally 	be 	one 	largely 	determined 	by 	the 	community 	of 	interest 	and
established 	practices 	of 	the 	employees 	rather 	than 	the 	efficient
operation 	of 	the 	school district." 	Sweetwater 	Union High 	School
District, 	(11/23/76) 	EERB Decision No. 	4.
In order 	to meet 	this 	legislative 	intent, 	the PERB has
repeatedly 	given 	the 	community of 	interest 	criterion 	great 	weight 	in
determining 	the 	appropriateness 	of 	a 	unit. 	See 	Sweetwater 	Union
High School District, 	supra, 	and San Mateo Union High School
District 	(3/22/78) 	PERB Decision No. 	49 	, 	involving classified
employees; 	Los Angeles Unified School District 	(11/14/76) 	EERB
Decision No. 	5 	and 	Palo Alto Unified 	School District 	(1/9/79) 	PERB
4Section 	3545(a) 	states:
3545. 	(a) 	In each case where 	the
appropriateness 	of 	the 	unit 	is 	an 	issue, 	the
board 	shall 	decide 	the 	question 	on 	the 	basis
of 	the 	community of 	interest 	between 	and
among 	the 	employees 	and 	their 	established
practices 	including, 	among other 	things, 	the
extent 	to which 	such 	employees 	belong 	to 	the
same employee organization, 	and the effect of
the 	size of 	the 	unit 	on 	the 	efficient
operation 	of 	the 	school district.
41

Decision No. 	84, 	involving certificated employees; 	Los Rios
Community College District 	(6/9/77) 	EERB Decision No. 	18 	and
Hartnell Community College District 	(1/2/79) 	PERB Decision No. 	81,
involving 	community 	college 	employees.
In 	defining 	what 	constitutes 	a 	community of 	interest 	between 	and
among 	employees, 	there 	are 	several 	factors 	which 	have 	been
established 	by 	the National 	Labor 	Relations Board: 	qualifications,
training and 	skills, 	job functions, 	method 	of wages or 	pay
schedules, 	hours of work, 	fringe benefits, 	supervision, 	frequency of
contact with other 	employees, 	integration with work 	functions 	of
other 	employees, 	and 	interchange with 	other 	employees. 	Kalamazoo
Paper Box Corp. 	(1962) 	136 NLRB 134, 	[49 LRRM 1715] 	cited
approvingly 	by 	the 	PERB 	in 	Los Angeles Unified 	School 	District
(11/24/76) 	EERB Decision No. 	5.
In 	the 	present case, 	the 	weight of 	the 	evidence 	indicates 	that
certificated 	and 	classified 	supervisory employees 	have 	few, 	if 	any,
of 	these 	factors 	in common. 	Therefore, 	the 	certificated 	and
classified 	employees 	do 	not 	share 	the 	requisite 	community 	of
interest 	which 	would 	permit 	a 	determination 	that 	together 	they
constitute 	an appropriate bargaining 	unit, 	which, 	if certified,
could 	serve 	to 	represent 	supervisory 	employees 	in 	a manner
consistent 	with 	the 	purpose 	of 	the 	EERA as 	set 	forth 	in 	section 	3540
and 	recognized 	by 	PERB 	in 	Sweetwater.
This point 	is 	underscored 	by 	the 	scope of 	representation
permitted 	under 	the 	EERA. 	Given 	the 	lack 	of 	community of 	interest
between 	and 	among 	certificated 	and 	classified employees, 	scope 	and
substance 	of bargaining 	proposals 	for 	one 	group 	would 	often 	be
42

substantially 	different 	than proposals 	for 	the 	other 	group. 	Thus,
this 	dissimilarity of 	interests 	may 	present 	a 	serious 	impediment 	to
the 	negotiating 	process 	if 	certificated 	and 	classified 	supervisory
employees 	were 	to 	be 	included 	in 	the 	same 	unit.
In 	addition 	to 	consideration of 	the 	criterion of 	community of
interest 	in deciding 	the 	appropriateness 	of 	negotiating 	units,
section 	3545(a) 	requires 	consideration of:
...established 	practices 	including, 	among 	other
things, 	the extent 	to which...employees belong 	to
the 	same employee 	organization, 	and 	the 	effect of
the 	size of 	the 	unit 	on 	the 	efficient operation
of 	the 	school district.
Consideration of 	these 	two 	criteria 	does not 	affect 	the
determination 	that 	the 	supervisory 	units 	in question 	should 	be
separate. 	With 	respect 	to past 	representation history, 	the 	fact
that 	all 	supervisory employees 	in 	the 	District once 	belonged 	to 	the
Association of 	District Administrators means 	little. 	That
representation was 	under 	the Winton Act, 	not 	the 	EERA, 	and 	the PERB
has 	stated 	that 	it 	will give 	little 	weight 	to established 	practices
as 	they 	relate 	to 	the 	composition 	of 	the 	unit 	represented 	under 	that
Act. 	Antioch Unified School District 	(11/7/77) 	EERB Decision No. 	37,
The 	fact 	that 	the 	classified 	unit 	is 	made 	up of only 	four
employees 	presents 	the 	potential problem of 	unnecessary
fragmentation 	of units. 	This 	raises 	the 	further 	question 	of whether
classified 	employees 	should 	be 	included 	in 	a 	unit 	with 	certificated
employees 	for 	the 	sole 	purpose 	of 	avoiding 	fragmentation 	and 	the
potential 	disruption of 	the 	efficiency of 	operations 	in 	the
District. 	In Shasta Union High 	School District 	(10/25/77) 	EERB
43

Decision No. 	34, 	the PERB considered 	the question of whether 	the
small 	number 	of employees, 	standing alone, 	is a basis 	for 	concluding
that a wall-to-wall 	unit 	is 	appropriate. 	It concluded 	that 	it 	is
not.
We 	note 	that 	the 	number 	of 	employees
(however small) 	is not, 	alone, a basis for
concluding 	that 	a wall-to-wall 	unit 	is
appropriate. 	However, 	the 	number of employees 	in
a district may be 	so 	small 	that 	a district, 	as 	a
consequence, 	may 	have 	assigned 	to employees
interchangeable 	functions 	and 	parallel 	working
conditions 	that 	are 	consistent 	with 	the 	community
of 	interest 	required 	to 	find 	appropriate 	a
wall-to-wall 	unit 	under 	the Act's 	unit 	criteria.
Additionally, 	there 	may be 	a 	situation where 	the
number of employees 	is 	so 	small 	that 	to 	find
other 	than 	a wall-to-wall 	unit 	may 	adversely
affect 	the 	efficient operations of 	the 	school
district. 	While 	future 	cases 	reaching 	the 	board
may present 	facts of 	the 	kind quoted 	herein, 	this
case, does not. 	(Emphasis in original).
In 	the present case, 	the 	evidence 	does 	not 	show 	that 	the 	number
of 	employees 	in 	the 	classified 	unit 	has 	resulted 	in 	the 	District
assigning 	to employees 	interchangeable 	functions 	or 	parallel 	working
conditions 	which 	are 	consistent 	with 	the 	community 	of 	interest
criterion. 	Likewise, 	there was 	no evidence presented 	that 	the 	size
of 	the 	classified 	unit 	would 	adversely 	affect 	the 	efficient
operations of 	the District. 	Therefore, 	the 	size of 	the 	classified
unit, 	standing alone, 	is 	insufficient 	to 	support 	the 	determination
that a 	wall-to-wall 	unit of 	supervisory employees 	is 	appropriate.
See 	also, 	Greenfield Union High 	School District 	(10/25/77) 	EERB
Decision No. 	35.
This 	District's 	argument 	that 	no 	classified 	unit 	is 	appropriate
because of 	its 	size 	is dismissed. 	To 	find 	a 	unit of 	four
44

supervisory 	classified employees inappropriate 	based 	on 	size 	alone
would 	serve 	to 	deprive 	these 	employees 	of 	all 	rights 	under 	the
EERA. 	Such 	a 	finding 	would 	be 	inconsistent 	with 	the 	purpose 	and
intent 	of 	the 	EERA.
ORDER
1. 	It 	is 	the proposed order 	that:
A. 	The 	following 	unit 	is 	appropriate 	for 	the 	purpose 	of
meeting 	and 	negotiating, 	providing 	an 	employee 	organization 	becomes
the 	exclusive 	representative 	of 	the 	unit:
Certificated 	Supervisory 	Employee 	Unit 	including
all 	supervisory certificated 	employees, 	and
excluding 	all 	managerial 	and 	confidential
employees.
B. 	The 	following 	principals 	be 	excluded 	from 	the
Certificated 	Supervisory 	Employee 	Unit 	as 	confidential 	employees 	in
accordance 	with 	this 	recommended 	decision: 	Jim Abbot, 	Ken Van
Otten, 	Bob Cotrell, 	and Ann Huddleston.
2. 	It 	is 	further 	proposed 	that:
A. 	The 	following 	unit 	is 	appropriate 	for 	the 	purpose 	of
meeting 	and 	negotiating, 	providing 	an 	employee 	organization 	becomes
the 	exclusive 	representative of 	the 	unit:
Classified 	Supervisory 	Employee 	Unit 	including
all 	supervisory 	classified 	employees, 	and
excluding 	all 	managerial 	and 	confidential
employees.
B. 	The 	manager 	of maintenance 	and 	operations 	be
excluded 	from 	the 	Classified 	Supervisory 	Employee 	Unit 	as 	a
confidential 	employee.
45

Pursuant 	to California Administrative 	Code 	title 	8, 	part 	III,
section 	32305, 	this 	Proposed 	Decision 	and Order 	shall 	become 	final
on 	April 13, 1979 unless a party 	files a 	timely 	statement of
exceptions 	within 	twenty 	(20) 	calendar 	days 	following 	the 	date 	of
service of 	the 	decision. 	Such 	statement of exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	executive
assistant 	to 	the Board 	at 	the 	headquarters 	office 	in 	Sacramento
before 	the 	close 	of business 	(5:00 	p.m.) 	on 	April 	11, 	1979 	in
order 	to be 	timely 	filed. 	(See 	California Administrative 	Code,
title 8, 	part 	III, 	section 32135.) 	Any statement of exceptions 	and
supporting 	brief must 	be 	served 	concurrently 	with 	its 	filing 	upon
each 	party 	to 	this 	proceeding. 	Proof of 	service 	shall 	be 	filed with
the Board 	itself. 	(See California Administrative Code, 	title 8, 	part III,
sections 	32300 	and 	32305, 	as amended.)
Upon 	notice 	that 	this 	Proposed 	Decision 	has 	become 	final 	and
subsequent 	notice 	by 	the 	Regional 	Director 	that 	an 	election 	is 	being
called, 	the employee 	organizations 	shall 	demonstrate 	to 	the Regional
Director 	at 	least 	thirty 	(30) 	percent 	support 	in 	the 	Certificated
Supervisory Employees 	unit 	and 	thirty 	(30) 	percent 	support 	in 	the
Classified 	Supervisory Employees 	Unit 	within 	ten 	days 	of 	posting.
After 	a 	determination of 	sufficiency 	of 	the 	showings 	of 	support 	have
been made, 	the 	Regional Director 	shall conduct 	an 	election 	in 	the
units 	if 	the 	employer 	does 	not grant 	voluntary 	recognition. 	If 	one
unit 	is 	granted 	voluntary 	recognition 	and 	the 	other 	unit 	is 	not,
there 	will be 	an 	election 	for 	the 	one 	unit which 	has 	not 	been
46

granted 	voluntary 	recognition. 	Voluntary 	recognition 	requires
majority proof 	of 	support 	in all 	cases. 	Se
. e 	Government 	Code
sections 	3544 	and 	3544.1.
Dated: 	March 22, 	1979
Fred 	D'Orazio"
Hearing 	Officer
47