California State University (Statewide University Police Association) (PERB 0351HA)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
THE CALIFORNIA STATE UNIVERSITY,
Employer,
and
STATEWIDE 	UNIVERSITY 	POLICE
ASSOCIATION,
Employee 	Organization.
) 	Case No. 	LA-UM-252-H
(LA-HR-8)
Requests 	for Reconsideration
and Judicial Review
PERB Decision No. 	351-H
PERB Decision No. 	351a-H
May 30, 	1984
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Appearances; 	William B. 	Haughton, 	Attorney for 	The California
State 	University.
Before Tovar, 	Morgenstern and Burt, Members.
DECISION
MORGENSTERN, 	Member: 	The California State University 	(CSU
or 	University) 	requests reconsideration of Decision No. 	351-H
of 	the Public Employment Relations Board 	(PERB or 	Board)
wherein 	the 	Board 	found 	the 	Supervising 	Public 	Safety
Officers 	I 	(sergeants) 	not to be supervisory employees 	under
section 	3580.3 	of 	the 	Higher 	Education Employer-Employee
Relations Act 	(HEERA).1l The University also requests 	that
the 	Board 	join 	in 	judicial 	review of 	its 	decision.
1HEERA 	is 	codified at Government 	Code 	section 	3560 	et
seq. 	Section 3580.3 	provides:
"Supervisory 	employee" 	means 	any 	individual,
regardless of 	the 	job description or 	title,
having authority, 	in the 	interest of the
employer to hire, 	transfer, 	suspend, 	lay
_____ )

off, recall, promote, discharge, assign,
reward, 	or discipline other employees, 	or
responsibility to direct 	them, 	or 	to adjust
their 	grievances, 	or effectively to
recommend such action, 	if, 	in connection
with 	the foregoing, 	the exercise of such
authority 	is 	not of a merely routine 	or
clerical nature, 	but requires the use of
independent 	judgment. 	With 	respect 	to
faculty or 	academic employees, 	any
department chair, 	head of 	a 	similar 	academic
unit or 	program, 	or 	other 	employee who
performs 	the 	foregoing duties primarily 	in
the 	interest of and on behalf of 	the members
of the academic department, 	unit or program,
shall 	not be deemed 	a 	supervisory employee
solely 	because 	of 	such 	duties 	. . . .
Employees whose 	duties 	are 	substantially
similar 	to 	those of their 	subordinates 	shall
not be 	considered 	to be 	supervisory
employees.
DISCUSSION
A. 	Request 	for 	Reconsideration
PERB rule 32410(a) 	provides 	that any party to a decision of
the Board may, 	because of extraordinary circumstances, 	file a
request 	to 	reconsider 	that 	decision.2 In 	making 	such 	a
request 	in the 	instant case, 	the University claims 	that 	the
Board 	reached 	erroneous 	conclusions 	from 	the 	evidence
presented, 	and 	that an agreement reached 	subsequent 	to 	the
Board's 	decision mandates 	the 	exclusion of 	sergeants 	from the
established 	unit.
We 	find 	each 	of 	the University's 	arguments 	to be 	without
merit.
2pERB 	rules 	are 	codified 	at California Administrative
Code, 	title 8, 	section 31001 et seq.
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As 	a preliminary 	issue, 	it 	is noted 	that CSU's
reconsideration 	request 	asks 	for 	"reconsideration 	by 	the 	full
Board of 	the decision made 	. . . 	by two members 	of 	a
three-member 	panel."
PERB rule 32410(a), 	which contemplates reconsideration,
directs only 	that 	"Any party to a decision of 	the 	Board 	itself
may, 	because of extraordinary circumstances, 	file a request to
reconsider 	the decision within 	20 	days 	following 	the date 	of
service of the decision." 	Since, 	considered 	in 	its common
vernacular, 	reconsider means to review a previous matter, 	the
implication 	is 	that 	the 	same body 	that 	first 	issued 	the
decision would 	review 	it 	and 	rule 	again.
We 	also note 	that Government Code 	subsection 	3541(c)
establishes 	that, 	while PERB may delegate 	its powers 	to any
group of three or more Board members, 	"Nothing 	shall preclude
any board 	member 	from participating 	in 	any case 	pending 	before
the 	board." 	Interpreting 	this 	statutory 	language 	as providing
that any Board member, 	on his or her own 	initiative, 	may well
have authority to enter 	into a 	reconsideration 	issue, 	we do not
find any reason 	to allow a party to 	override 	the 	Board's
decision 	to assign a particular 	case 	to a 	three-member 	panel.
We, 	therefore, 	rest on the Board's authority to panel 	its
decisions and find that the parties' 	right to petition for
reconsideration 	does 	not 	extend 	farther 	than 	reexamination 	by
the 	original panel.
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The main 	thrust of CSU's 	reconsideration request 	is 	to
reargue 	the 	significance of 	those 	facts 	appearing 	in 	the 	record
which 	support 	its position 	that 	the 	sergeants 	are 	supervisors.
However, 	the 	Board's decision 	is based on 	its consideration of
the 	totality 	of 	evidence presented. 	Notwithstanding 	specific
instances 	where 	a 	sergeant's 	disciplinary 	recommendation was
upheld, 	the record 	as a whole amply 	supports 	the Board's
finding 	that 	the 	process 	by which 	discipline was 	imposed did
not 	invest 	sergeants 	with 	the 	authority 	to discipline 	or 	to
effectively 	recommend 	the 	discipline 	of 	other 	employees.
Indeed, 	the decision 	refers 	to 	action 	taken within disciplinary
guidelines, 	a 	sergeant's discussion with a 	lieutenant before
issuing 	a 	reprimand, 	disciplinary decisions 	reached by
consensus 	and 	joint 	recommendations 	of discipline by 	the
sergeant 	and 	lieutenant.
The 	Board 	found 	from the evidence 	that 	sergeants 	did 	not
exercise 	independent 	judgment 	when 	administering 	disciplinary
action. 	Rather, 	discipline was ordered 	in accordance with a
sergeant's 	recommendation only to the extent 	that, 	upon 	review,
the 	sergeant's 	recommendation conformed 	to 	the 	superior's
opinion. 	We 	find 	lacking 	the 	critical 	element of 	autonomy and
control 	which 	the 	Board 	has 	consistently demanded 	to 	establish
supervisory status. 	Unit 	Determination 	for 	Professional
Scientists and Engineers, 	Lawrence Livermore National
Laboratory, 	of 	the 	University of California Pursuant 	to
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Chapter 	744 	of 	Statutes of 	1978 	(Higher 	Education
Employer-Employee 	Relations Act) 	(3/8/83) 	PERB Decision
No. 	246b-H. 	Having 	reached 	the ultimate 	factual conclusion
that 	the 	sergeants 	possess 	no effective disciplinary authority,
we 	find 	that 	the 	University has 	failed 	to 	demonstrate 	the 	sort
of 	extraordinary circumstances 	which 	justify 	the 	grant 	of
reconsideration. 	Rio Hondo Community College District
(5/16/83) 	PERB Decision No. 	279a.
The 	Board 	is 	not persuaded 	by CSU's 	citation 	to Eastern
Greyhound Lines v. 	NLRB 	(6th Cir. 	1964) 	337 F.2d 84 	[57 LRRM
2241] 	and 	its 	claim 	that 	the 	Board 	erred 	in 	regarding 	those
instances where 	sergeants' 	specific recommendations were
altered 	by 	their 	superiors 	as 	calling 	into question 	whether
sergeants were 	truly vested with disciplinary authority. 	The
Greyhound court 	found 	the disputed employees 	in 	that case 	to 	be
supervisors based, 	in part, 	on 	its view that the recommendation
remained effective 	if some discipline was meted out. 	However,
that 	conclusion 	has 	by no means 	been 	universally 	adopted.
(See, 	for example, Bodolay Packaging Machinery, 	Inc. 	(1982) 	263
NLRB 320 	[111 LRRM 1180].) 	Indeed, 	this 	is so because 	the
factual 	determination 	of 	supervisory 	status 	involves 	the 	review
of a myriad of 	job duties 	that are never 	identical. 	In 	the
instant case, 	for example, 	including the 59 	sergeants 	in the
supervisory cadre would have 	resulted 	in 	approximately 	100
individuals 	directing 	a 	nonsupervisory 	work 	force 	numbering
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197. 	In contrast, 	the 121 dispatchers determined to be
supervisors 	in Greyhound directed 	the 	daily bus 	operation 	of
some 3,000 	drivers. 	That 	fact alone 	is 	sufficient 	to
distinguish Greyhound 	from the case before us and, 	thus, 	to
seriously 	limit 	its precedential value. 	As 	has 	been observed,
gradations 	in 	the degree of 	authority over 	fellow employees 	is
so 	infinite 	and 	subtle 	that a 	large measure of 	informed
discretion and 	expertise 	is 	necessarily 	involved 	in determining
supervisory status. 	Laborers 	& Hod Carriers v. 	NLRB 	(9th Cir.
1977) 	564 P.2d 838 	[97 LRRM 2287]; 	Mon River Towing, 	Inc. 	v.
NLRB 	(3rd Cir. 	1969) 	421 P.2d 1 	[73 LRRM 2081]; 	NLRB v. 	Swift &
Co. 	(1st Cir. 	1961) 	292 F.2d 561 	[48 LRRM 2695]. 	Based on the
facts 	in the 	instant case, 	the Board was well within 	its
authority 	to view the 	subsequent 	adjustment of 	the 	type 	of
discipline as 	"raising a question" 	as 	to 	the effectiveness 	of
the 	sergeants' 	recommendations.
Similarly, 	focusing 	in on 	the majority's 	opinion 	requiring
that 	sergeants' 	disciplinary authority be 	"sufficiently
autonomous," 	CSU contends 	that 	the chief's 	review of 	the
recommendations 	does 	not 	undercut 	the 	employee's 	supervisory
status. 	Again, 	cases cited 	in CSU's exceptions are not
controlling 	in 	that 	the 	factual circumstances vary greatly 	from
the 	instant case. 	Based on the facts 	in this case, 	the Board's
reference 	to 	instances where 	review of 	the 	recommendation was
undertaken 	simply 	indicates 	one 	factor 	that belies 	the
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assertion 	that 	sergeants mete out discipline. 	Reference 	to
review of 	disciplinary 	recommendations 	was 	considered 	along
with 	the references 	noted above 	to depict a process where
sergeants' recommendations were not, 	in effect, 	decisions
carrying with 	it 	authority 	to discipline.
CSU also 	contends 	that 	the 	Board 	erred 	in concluding 	that
the sergeants' 	authority to resolve 	informal disputes or
grievances did not 	satisfy 	the 	statutory directive 	to 	adjust
employee grievances 	in the 	interest of the employer. 	In 	its
request, 	CSU quotes at length 	from Warner 	Company v. 	NLRB
(3d Cir. 	1966) 	365 F.2d 435 	[63 LRRM 2189] 	wherein the court,
rejecting 	a distinction 	between 	processing minor 	complaints 	and
adjustment of grievances, 	found 	the 	employees 	in question 	"do
resolve 	disputes 	over 	working conditions 	on 	behalf of 	their
employer, 	exercising 	independent judgment, 	and thus 	'adjust
grievances' 	for 	the purposes of the Act."
Contrary 	to 	the 	argument presumably 	raised 	by citation 	to
this case, 	the Board's decision does not rest on a distinction
between 	informal 	and 	formal dispute 	resolution 	techniques.
Specifically, 	the 	Board 	reached 	the 	following conclusion:
We do not dispute 	the hearing 	officer's
finding 	that 	the 	sergeants 	frequently
resolve 	the 	informal disputes 	or 	grievances
of the officers. 	However, 	we do not view
this 	function as 	satisfying 	the 	statutory
directive 	to adjust employee 	grievances 	in
-	the 	interest of the employer. 	In 	other
words, 	the sergeants' 	adjustments of these
day-to-day work 	disputes 	are 	not 	based 	on 	an
obligation or 	allegiance 	to 	the 	employer.
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Efforts 	to 	resolve problems 	in an 	informal
manner 	spring 	from the employees' common
goal of 	insuring a congenial, 	smooth
functioning work 	environment. 	The
sergeants' 	involvement in this process poses
no conflict with 	the officers' 	negotiating
relationship with management.
As 	to 	the University's 	established 	grievance
procedure 	which 	purports 	to 	invest 	sergeants
with 	first 	level 	authority 	to 	adjust certain
types of grievances, 	we 	find no evidence 	to
substantiate 	the 	claim 	that 	the 	sergeants
have 	so acted. 	We decline 	to conclude 	that
the 	University has 	satisfied 	its 	evidentiary
burden 	where 	no 	evidence 	establishes 	that
the 	sergeants 	regularly act 	in 	this
capacity. 	The mere potential to do so, 	like
a job description, 	is 	insufficient to remove
the 	sergeants 	from HEERA's 	collective
bargaining 	scheme. 	(Footnote 	omitted.)
(Emphasis 	added.)
While 	the 	Board 	admittedly discusses 	the 	informal
grievances 	separately 	from the 	formal 	grievances, 	the pertinent
factor 	was 	that 	the 	evidence 	indicated 	that 	the 	day-to-day
disputes were 	reconciled by sergeants, 	not as agents 	for 	the
employer, 	but as co-workers concerned with reducing disruption
of 	the work 	environment. 	The case 	upon which CSU relies 	cannot
be 	read 	to mean 	that 	all 	informal dispute 	resolution 	reveals
supervisory status. 	Warner 	merely 	requires 	that 	the 	Board not
automatically discount 	informal grievance procedures. 	The
Board's opinion conforms 	to 	this 	rule of 	law.
CSU's 	reconsideration 	request 	is 	also 	based 	on 	a 	memorandum
of understanding 	(MOU) 	which, 	it contends, 	requires that the
officers 	must 	exhaust 	the 	informal 	review procedure 	by
appealing 	to 	the 	immediate 	supervisor, 	the 	sergeant.
Co
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Specifically, 	CSU asserts 	that the 	sergeant has been designated
as the officers' 	"immediate supervisor" 	and, 	pursuant to
Article 	7.7 	of 	the MOU, 	resort 	to 	informal 	review by 	one's
"immediate 	supervisor" 	involves 	the 	sergeants 	in adjusting
disputes 	in the 	interest of management.
The parties' 	MOU 	indeed does 	establish an 	informal 	review
procedure 	involving 	presentation 	of complaints 	to 	the
"immediate 	supervisor." 	However, 	Article 	7.4 	defines 	immediate
supervisor 	as 	"the 	appropriate 	nonbargaining 	unit 	supervisory
or 	management person 	to whom the employee 	is 	accountable."
(Emphasis 	supplied.) 	Contrary to CSU's assertion, 	the parties'
agreement does 	not designate 	sergeants 	as 	immediate
supervisors. 	Moreover, 	we note that at level II, 	the formal
grievance 	level, 	the employee 	is directed to 	file 	the complaint
with 	the director 	of public safety or 	the chief. 	In 	this chain
of command, 	lieutenants are conspicuously absent.
In any event, 	the parties' 	MOU does not alter 	the Board's
determination 	that sergeants, 	whose duties were examined and
documented 	in 	the course 	of 	the 	instant 	proceeding which
predated 	the MOU's 	existence, 	are employees 	covered by HEERA.
Even 	if 	there has been a change 	in circumstance 	since 	the
Board's hearing, 	it 	is not pertinent to the decision already
rendered 	by 	the 	Board.
B. 	Request 	for 	Judicial 	Review
Subsection 	3564(a) 	of HEERA provides 	as 	to 	judicial 	review
of a 	unit determination as 	follows:
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(a) 	No employer 	or employee organization
shall have 	the 	right 	to 	judicial 	review of 	a
unit determination except: 	(1) 	when the
board 	. 	. 	. 	agrees that the case is one of
special 	importance and 	joins 	in 	the 	request
for 	such review; 	or 	(2) 	when the 	issue 	is
raised 	as 	a 	defense 	to an unfair 	practice
complaint.
PERB rule 32500(c) 	permits 	the Board 	to 	join 	in a 	request 	for
judicial review or 	to 	"decline to join, 	at 	its discretion."
Believing 	the majority's 	decision 	to be well-founded, 	we
find 	the 	University's 	request 	to 	be 	no more 	than 	disagreement
with 	the Board's 	exercise of 	its 	statutory 	authority. 	Thus,
CSU's 	request 	for 	judicial 	review 	is denied, 	there 	appearing 	no
ground 	for 	considering 	this 	case 	to be 	one 	of 	"special
importance." 	San 	Diego Unified 	School 	District 	(10/27/81) 	PERB
Order No. JR-10.
ORDER
The 	University's 	request 	for 	reconsideration 	and 	for
judicial review of PERB Decision No. 	351-H, 	Case
No. LA-UM-252-H, 	is hereby DENIED.
Member 	Burt 	joined 	in 	this Decision. 	Member 	Tovar's 	dissent
begins on page 11.
10

TOVAR, 	dissenting: 	As 	I 	did 	in the original decision 	in
this 	case, 	I 	again differ 	with my colleagues 	and 	would 	grant
the 	request 	for 	reconsideration 	filed 	by 	the California State
University 	(CSU or 	University). 	In my original dissent, 	which
I 	incorporate 	by 	reference 	herein, 	I 	concluded 	that Sergeants
were 	supervisors 	because 	the 	evidence 	indicated 	that 	they
performed 	important 	supervisory 	functions 	and 	exercised 	control
over 	work 	processes 	and 	administrative 	and 	personnel 	matters,
and 	that 	they 	did 	so on 	behalf 	of 	the 	employer.
Initially, 	I 	take exception 	to 	the majority's 	statement
that Board 	rule 	32410(a) 	implies 	that 	"the 	same 	body 	that 	first
issued 	the 	decision would 	review 	it 	and 	rule 	again" 	and 	their
conclusion 	that 	CSU's 	petition 	for 	reconsideration 	permits
reexamination onl
----y 	by 	the 	original panel. 	This 	interpretation
of 	the 	above-mentioned Board 	rule 	is 	inaccurate. 	In 	fact, 	the
Board 	adopted 	an 	informal policy 	to 	have 	the 	same 	panel 	that
participated 	in 	the 	initial 	case 	handle 	the 	request 	for
reconsideration 	for 	practical 	reasons 	— 	it 	would 	be 	more
expedient 	to 	assign 	the 	case 	to 	the 	panel most 	familiar 	with
the 	transcript 	and 	exhibits 	in 	the 	case. 	However, 	Government
Code 	subsection 	3541(c) 	establishes 	that 	nothing 	shall preclude
any Board member 	from participating 	in 	any 	case 	pending 	before
the Board. 	The Board's 	informal 	policy does 	not 	preclude 	the
full Board 	from examining 	the 	reconsideration 	or 	any 	one 	member
not 	in 	the 	original 	panel 	from participating 	therein 	as
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is 	his/her 	statutory 	right. 	Although 	I 	consider 	CSU's 	request
appropriate 	and 	one 	which 	the Board may 	consider, 	ultimately,
the Board 	is 	not obligated 	to 	adopt 	such 	a 	request 	since 	it 	is
still 	the Board's 	prerogative 	to determine 	how 	to panel 	a
particular 	case.
Reconsideration 	is 	appropriate 	in 	the 	instant 	case 	for 	two
principal 	reasons.
First, 	the 	majority 	reached 	erroneous 	conclusions 	from 	the
evidence 	presented. 	My 	colleagues 	claim 	to 	base 	their 	decision
on 	a 	"totality" 	of 	the 	evidence 	presented, 	yet 	they 	focus
almost exclusively on 	the 	issue of 	the Sergeants' 	ability 	to
effectively 	recommend 	disciplinary 	action, 	and 	totally
disregard 	the 	evidence 	indicating 	indicia 	of 	supervisory
status. 	It 	is well 	established 	that 	the 	language of
section 	3580.3 	is 	to be 	read 	in 	the disjunctive, 	with 	the
existence 	of 	any one of 	the 	statutory powers, 	regardless 	of 	the
-
frequency of 	its 	exercise, 	being 	sufficient 	to 	confer
supervisory 	status 	upon 	the 	employee. 	Pacific 	Intermountain
Express Co. 	v. NLRB 	(1969) 	174 NLRB No. 	68 	[71 LRRM 2551, 	2552].
The 	majority 	has 	simply 	and 	erroneously 	ignored 	the
testimony 	contrary 	to 	its 	conclusion.
The 	evidence 	in 	the 	instant 	case 	demonstrating 	supervisory
status 	includes 	the 	fact 	that Sergeants make 	performance
evaluations 	of 	the 	officers 	they 	supervise 	which 	are 	considered
in personnel 	and promotional matters. 	The 	performance
evaluations 	made 	by 	the Sergeants 	of 	the officers 	are 	rarely,
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if 	ever, 	changed when 	reviewed 	by 	the Lieutenant or 	Chief.
There 	was 	testimony 	that Sergeants 	have 	access 	to personnel
files 	and 	have 	traveled 	to 	other 	jurisdictions 	on 	behalf 	of
management 	to make 	inquiries 	and 	an 	assessment 	of whether 	an
officer 	candidate 	should 	be 	hired. 	The 	testimony 	indicated
that 	the Sergeants' 	recommendation not 	to hire 	a particular
candidate was 	followed 	by 	the Chief. 	Sergeants 	write
commendations 	and 	place 	them 	in 	the 	personnel 	files 	of 	the
officers 	they 	feel 	are 	deserving. 	They 	attend management-staff
meetings 	along 	with Lieutenants 	and Chiefs 	where 	budget 	and
personnel 	policies 	and 	practices 	are 	discussed.1 In 	short,
in 	every way 	they 	are 	seen 	as 	part of 	the management 	team by
themselves, 	the officers 	they supervise, 	and their 	superiors.
Thus, 	any one of 	these 	duties 	vests Sergeants 	with 	supervisory
status which, 	of necessity, 	precludes 	their participation 	in
the 	rank 	and 	file 	unit.
Even 	when you examine 	the 	disciplinary 	issue, 	the 	record
indicates 	that 	there 	were 	at 	least 	36 	separate 	disciplinary
1See 	for 	example, 	Pacific Intermountain Express Co. 	v.
NLRB, 	supra, 	where 	the Court of Appeals held 	that 	the NLRB was
not 	warranted 	in 	finding 	that 	the 	employer 	violated 	the LMRA
when 	it 	refused 	to 	bargain 	with 	the 	union 	certified 	for 	the
unit 	of 	line 	dispatchers 	since 	line 	dispatchers 	are 	supervisors
within 	the meaning 	of 	the LMRA. 	The 	dispatchers 	participated
in managerial 	supervisory meetings, 	they 	assigned 	drivers 	and
scheduled 	departures 	and 	they 	approved 	driver 	pay 	claims,
granted 	drivers 	time 	off 	and 	suspended 	intoxicated 	or 	otherwise
unfit drivers.
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recommendations 	ranging 	from discharge 	to 	suspensions 	to
written 	and oral 	reprimand which, 	in my opinion, 	constitute
significant 	evidence 	of 	the 	Sergeants' 	authority 	to 	effectively
recommend 	discipline. 	It 	seems 	the majority would 	have 	the
Sergeants 	make 	the 	sole 	and 	final 	decision on what 	discipline
to 	impose 	before 	accepting 	the 	fact 	that 	they 	are
supervisors.2
I 	agree 	with CSU 	that Eastern Greyhound Lines v. 	NLRB 	(6th
Cir. 	1964) 	337 F.2d 84 	[57 LRRM 2241] 	is viable precedent which
is 	applicable 	to the 	facts 	in this case. 	I 	believe 	that 	the
Sergeant's 	recommendation 	for 	discipline 	remains 	effective 	if
some 	discipline 	is meted 	out 	even 	though 	it might 	not 	be
exactly 	the 	recommendation made 	by 	the 	Sergeant.
The 	majority 	attempts 	to 	limit 	the 	precedential 	value 	of
this 	decision 	by pointing 	to 	the 	differences 	in 	ratio of
supervisor 	to employees 	between 	the 	two cases. 	However, 	the
majority 	fails 	to 	state 	how 	the 	ratio differential 	alone 	is
sufficient 	to distinguish 	these 	two 	cases.
The majority 	seems 	to 	feel 	that Sergeants 	undertake 	to
resolve 	daily gripes 	in order 	to 	foster 	some 	sort 	of
2See, 	for 	example, 	Maine Yankee Atomic Power Company v.
National Labor 	Relations Board 	(1980) 	79 NLRB 	1311 	[104 LRRM
2903] 	where 	shift operating 	supervisors 	were 	found 	to be
supervisors 	within 	the meaning 	of Section 	2(11) 	of 	the LMRA
despite 	the 	fact 	that 	they didn't 	sufficiently possess 	the
power to hire, 	transfer, suspend, 	layoff, 	recall, promote,
discharge, 	reward 	and discipline other 	employees 	or
"effectively" 	to 	recommend 	such 	action.
14

camaraderie, 	and 	have 	taken 	it 	upon 	themselves 	to perform these
tasks, 	sua sponte, 	for 	their own benefit. 	In fact, 	Sergeants
attempt 	to 	informally 	resolve 	these 	disputes 	on 	behalf 	of 	the
employer, 	and must 	take 	special 	supervisory courses 	in order 	to
play 	that 	role. 	Sergeants 	are 	required 	to 	successfully
complete 	80 	hours 	of 	supervisory 	training 	as 	prescribed 	by 	the
California 	Commission 	on Peace 	Officers 	Standards 	and Training
within 	the 	first 	year 	of 	employment. 	Sergeants 	specifically
receive 	training 	in 	"handling 	complaints 	and 	grievances,"
"theories 	of management," 	"supervisory styles," 	and 	"personnel
performance 	appraisal," 	among other 	categories. 	Further,
Sergeants 	are 	paid more 	than officers 	as 	a 	result of 	the
additional 	supervisory duties 	they 	have. 	The 	initial 	dissent
and 	the 	record 	also details 	the Sergeants' 	responsibility 	to
assign 	duties, 	approve 	overtime 	duty 	and 	pay 	and make 	shift
assignments. 	These 	same duties 	have 	been 	found 	sufficient 	to
vest 	other 	employees 	with 	supervisory 	status.
In Maine Yankee Atomic Powers Co. 	v. NLRB, 	supra, 	the U.S.
Court 	of Appeals 	reversed 	the NLRB 	and 	found 	shift 	operating
supervisors 	to be 	supervisors 	because 	they
. 	. 	. 	have 	the authority to direct control
room 	operators 	with 	whom 	they 	work
face-to-face 	and 	other 	operators 	who
manipulate 	auxiliary 	controls 	in plant 	on
directions 	from, 	and 	in 	coordination with,
actions being taken 	in control room, 	(2) 	is
"directly 	responsible" 	for 	performance 	of
his 	department 	and 	is 	held 	"fully
15

accountable 	and 	responsible" 	for 	performance
and 	work 	product of 	other 	employees,
(3) 	ensures 	that numerous gauges 	in control
room 	are monitored 	accurately, 	responding
efficiently 	to many warning 	signals 	and
alarms, 	(4) 	is responsible for taking, on
his own 	initiative, 	proper 	corrective
measures 	in 	event 	of 	emergency where 	prior
consultation 	with 	plant 	shift 	superintendent
is not possible, 	(5) 	is placed frequently in
charge of work crews 	on spare 	shift, 	and
(6) 	is 	salaried 	at 	rate 	approximately
17 	percent 	higher 	than 	straight-time
operators 	and 	is 	invited 	to 	attend
management meetings.
Similarly, 	in the 	instant case, 	Sergeants are 	the watch
commanders 	for 	the 	different 	shifts. 	They 	are 	generally
responsible 	for 	deploying 	personnel 	as 	needed 	for 	special
events 	or 	overtime 	work. 	Particular 	work 	assignments 	are
frequently 	scheduled 	on 	a volunteer 	basis. 	If 	no volunteers
are 	available, 	Sergeants 	have 	authority 	to assign 	the 	tasks 	as
they see 	fit. 	On some campuses, 	patrol areas or 	beats 	are
assigned 	to officers 	by Sergeants.
At 	each 	of 	the 	campuses, 	minimum 	staffing 	requirements 	have
been 	established 	for 	the work 	shifts. 	In general, 	a Sergeant
can decide, 	without prior approval, 	to call 	in an off-duty
officer 	if 	someone 	fails 	to 	report 	to work or 	to 	require
overtime 	in order 	to maintain 	the 	minimum 	staffing
requirements. 	Sergeants 	have 	authority 	to 	approve 	overtime 	and
require 	documentation of 	sick 	leave. 	They 	are 	paid 	at 	a higher
level 	than 	the 	officers 	whom 	they 	supervise 	and 	they 	attend
management 	staff meetings.
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Again, 	it 	is 	these 	supervisory duties of Sergeants
involving 	control 	over 	the 	work 	processes 	and 	administrative
and 	personnel matters which 	preclude 	a 	finding 	that 	the
disputed 	employees' 	duties 	are 	"substantially 	similar" 	to 	those
of 	their 	subordinates. 	See Unit Determination 	for Professional
Scientists 	and Engineers, 	Lawrence Livermore National
Laboratory 	of 	the University 	of 	California Pursuant 	to Chapter
744 	of 	the 	Statutes 	of 	1978 	(Higher Education Employer-Employee
Relations Act) 	(3/8/83) 	PERB Decision No. 	246b-H.
The 	second 	reason I 	would 	grant 	the 	request 	for
reconsideration 	is 	that 	the 	Memorandum of 	Understanding 	(MOU)
subsequently entered 	into 	by 	the 	parties 	does 	not 	apply 	to
Sergeants. 	Article 	22.1 	of 	the MOU 	specifies 	in pertinent 	part
that 	"the 	salary 	schedule 	that 	pertains 	to 	the 	bargaining 	unit
employees 	and 	this Agreement 	shall be 	found 	in Appendix A 	and
incorporated 	in 	this Agreement 	by 	reference." 	The 	salary
schedule 	(Appendix A) 	covering 	those 	employees 	in 	the 	unit
include 	only 	the 	investigator 	and 	public 	safety officer
titles. 	Sergeants 	are 	neither; 	they are Public Safety
Officers 	I 	clearly demonstrating 	that 	they 	are 	not 	in 	the 	rank
and 	file 	unit. 	The MOU 	thereby 	codifies 	the 	established 	past
practice 	of Sergeants 	being 	viewed 	by 	all 	concerned 	as 	being
higher-paid members of 	the management 	team, 	who 	have 	not 	been
and 	continue 	not 	to be 	considered 	part 	of 	the 	rank 	and 	file
unit.
17

The majority 	suggests 	that 	judicial 	review is not
appropriate 	because 	CSU 	could ultimately 	appeal 	the 	Board's
decision by making 	a technical 	refusal 	to bargain. 	I would
join CSU 	in 	its 	request 	for judicial 	review because 	I 	don't
think 	the 	Board 	should encourage 	any of the parties 	to 	refuse
to negotiate 	in 	good 	faith as 	a means 	of 	challenging 	the
Board's 	decision. 	If 	the majority's decision is well 	reasoned
or well 	founded as 	they 	claim, 	they 	should welcome 	judicial
review.
18