Imperial Unified School District (PERB 0647E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
IMPERIAL UNIFIED SCHOOL DISTRICT,
Employer,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	IMPERIAL
CHAPTER 	#565,
Exclusive Representative.
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) 	Case 	Nos. 	LA-UM-408
LA-UM-410
(R-330)
PERB 	Decision 	No. 	647
December 	18, 	1987
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Appearance; 	Jo Ann E. 	Ellis, 	Field Representative, 	for
California 	School 	Employees 	Association 	and 	its 	Imperial 	Chapter
#565.
Before Craib, 	Shank and Cordoba, 	Members.
DECISION
CRAIB, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	exceptions 	filed by 	the
California 	School 	Employees 	Association 	and 	its 	Imperial
Chapter 	#565 	(CSEA) 	to the attached proposed decision, 	in Case
No. 	LA-UM-408. 	In the proposed decision, 	a PERB hearing
officer 	found 	that 	the 	newly 	created position 	of
receptionist/clerk 	I 	is 	a 	"confidential" 	position within 	the
meaning of 	section 3540.l(c) 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA).1 The hearing 	officer 	thus 	denied
CSEA's 	petition 	to 	add 	the 	new position 	to 	the 	existing
wall-to-wall 	classified 	unit.
LEERA 	is 	codified at Government 	Code 	section 	3540 	et 	seq.
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We have 	reviewed 	the 	entire 	record, 	including 	the proposed
decision 	and 	the 	exceptions 	thereto 	and, 	finding 	the 	proposed
decision 	free of prejudicial 	error, 	we 	adopt 	it 	as 	the decision
of 	the 	Board 	itself.2
ORDER
The unit 	modification petition 	filed 	in Case 	No. 	LA-UM-408
to 	add 	the 	receptionist/clerk 	I position 	to 	the 	existing
wall-to-wall 	classified 	unit 	in 	the 	Imperial 	Unified 	School
District 	is hereby DENIED.
The 	unit 	modification petition 	filed 	in Case No. 	LA-UM-410
to 	add 	the 	attendance 	security 	supervisor 	to 	the 	wall-to-wall
classified 	unit 	in 	the 	Imperial 	Unified 	School 	District 	is
hereby 	GRANTED.
Members 	Shank 	and 	Cordoba 	joined 	in 	this 	Decision.
2In 	case No. 	LA-UM-410, 	the hearing officer granted
CSEA's 	petition 	to 	add 	the 	attendance 	security 	supervisor 	to
the 	existing wall-to-wall 	classified 	unit, 	rejecting 	the
Imperial 	Unified 	School 	District's 	contention 	that 	the 	position
was managerial within 	the meaning of EERA section 3540. K g ) .
As 	this 	finding was 	not excepted to, 	it 	is 	not properly before
us 	for 	consideration 	and we do not 	address 	it here.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
IMPERIAL UNIFIED SCHOOL DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION
AND ITS IMPERIAL CHAPTER #565,
Exclusive Representative.
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) 	Representation Case
Nos. LA-UM-408 and
LA-UM-410 (R-330)
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) 	PROPOSED DECISION
(6/30/87)	)
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Appearances; 	Horton, Knox, Carter and Foote by Frank A. Oswalt, II for
Imperial Unified School District; Jo Ann Ellis, Field Representative for
California School Employees and its Imperial Chapter #565.
Before Roger Smith, Hearing Officer
PROCEDURAL HISTORY
On December 24, 1986, California School Employees
Association and its Imperial Chapter #565 (CSEA) filed a unit
modification petition pursuant to PERB Regulation
32781(a)(2)1 with the Public Employment Relations Board (PERB
or Board) seeking to add the newly created position of
receptionist/clerk I to the wall-to wall classified unit it
1PERB 	Regulations are codified at California Administrative
Code, title 8, part III section 31001, et seq.
PERB Regulation 32781(a)(2) provides:
(a) 	A recognized or certified employee organization may
file with the regional office a petition for unit
modification:
(2) To add to the unit unrepresented classifications
or positions created since recognition or
certification of the current exclusive representative.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
(
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represents at Imperial Unified School District (District). 	The
District requested that the receptionist/clerk I position be
found to be confidential.
On January 29, 1987, CSEA filed another unit modification
petition with PERB pursuant to Regulation 32781(a)(2) which
sought to add the retitled position of attendance security
supervisor to the classified unit. 	The District designated the
attendance security supervisor as a management position
2
effective January 1, 1987.
On January 7, 1987, the District filed a response opposing
CSEA's request to have PERB find the receptionist/clerk I
position non-confidential. 	On February 4, 1987, the District
filed a response opposing CSEA's request to have PERB determine
the attendance security supervisor to be non-management.
Informal discussions to resolve the disputed positions proved
unsuccessful. 	A formal hearing was conducted on March 11,
1987. 	Briefs were timely filed and the case was submitted on
June 8, 1987.
ISSUES	ISSUES
(1) 	Is the receptionist/clerk I a confidential position as
defined in the Educational Employment Relations Act (EERA)?3
(2) 	Is the attendance security supervisor a management
position as 	defined 	in 	the EERA?
2 The District throughout this proceeding has not contended
that the attendance security supervisor was supervisory.
3EERA is codified at section 3540 et seq. of the Government
Code.
2

DISCUSSION
There are approximately 136 employees in the District, 60
of whom are classified, 10 of whom are designated as
administrators or management and 4 of whom are confidential
employees. 	The disputed positions are included in the total
number of confidential and management employees listed. 	PERB
previously reviewed the confidential status of this District's
employees. 	(Imperial Unified School District. (1978) PERB
Decision No. HO-R-55). 	At that time, the parties stipulated
that the District secretary and bookkeeper were confidential
employees and the hearing officer found that the assistant
bookkeeper and the purchasing and billing clerk were
confidential employees. 	Since that time, the number of
confidential employees rose to five, and dropped to three prior
to the creation of the receptionist/clerk I position in August
1986.
A. 	Receptionist/Clerk I
The receptionist/clerk I works in the administration
building of the District with three confidential employees and
the superintendent. 	She works in a room with the
administrative assistant. 	The room is approximately 36 feet by
20 feet and divided by a clear glass partition with a large
center piece missing as if an open window. 	The reception area
for District business is immediately adjacent to the
administrative assistant's office and the superintendent's
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office. 	The superintendent's office is separated from the
reception area by a wooden door and wall. 	The remaining two
confidential employees (bookkeeper and assistant bookkeeper)
work in an office separated from the front reception area by a
15 foot long hallway which runs behind the superintendent's
office.
Jenifer Walker, the receptionist clerk I, Patti Kiser,
administrative assistant, and Adrianne Scott, bookkeeper,
stated that they worked together as a team, sharing assignments
and responsibilities and covering one another's duties in case
of absence or heavy workload. 	All three employees confirmed
that duties became somewhat interchangeable when workflow
mandated it. 	Walker verified calculations of bargaining
proposals for the District's negotiating team in recent
negotiations with CSEA. 	In the absence of the bookkeeper, she
was asked by her supervisor, the administrative assistant, to
assure that calculations on an economic proposal were accurate.
Walker is responsible for opening and screening all
incoming mail and, as the receptionist, receives all incoming
telephone calls. 	In addition, she is responsible for
maintaining personnel files by filing documents and retrieving
information from them. 	She has regular access to files which
maintain grievance and complaint materials.
4

Government Code Section 3540.l(c) states:
"Confidential employee" means any employee
who, in the regular course of his or her
duties, has access to, or possesses
information relating to, his or her
employer's employer-employee relations.
In Sierra Sands Unified School District (1976) EERB Dec.
No. 2,
4 the union questioned the designation of the senior
secretary to the assistant superintendent for personnel services
as a confidential position. 	The assistant superintendent was
responsible for the development of negotiating positions,
consulting with the exclusive representatives regarding matters
within the scope of representation, and developing
recommendations for the negotiating team to the governing board.
Because of her supervisor's activities, the senior secretary
frequently, and as a routine matter, handled correspondence and
files relating to classified and certificated employees. 	Because
of this, 	the Board found that the secretary had access or
possessed information relating to her employer's
employer-employee relations. 	It summarized the reasons for
finding confidential employee status:
Presumably, the Legislature denied certain
rights to "confidential" employees for the
sole purpose of guaranteeing orderly and
equitable progress in the development of
employer-employee relations.
The assumption is that the employer should
be allowed a small nucleus of individuals
who would assist the employer in the
4Prior to January 1, 1978, PERB was known as the
Educational Employment Relations Board.
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development of the employer's positions for
the purpose of employer-employee relations.
It is further assumed that this nucleus of
individuals would be required to keep
confidential those matters that if made
public prematurely might jeopardize the
employer's ability to negotiate with
employees from an equal posture.
The underlying assumption then, is that the
employer, in order to fulfill its statutory
role in its employer-employee relations,
must be assured of the undivided loyalty of
a nucleus of staff designated as
"confidential employees."
In University of California Unit Determination (1983) PERB
Dec. No. 247b-H the Board stated that, at the least, the
definition of confidential employee includes the processing of
employee grievances and negotiations. 	The Board continued by
finding:
The frequency with which an employee has
access to or possesses information of a
confidential nature is not controlling.
However, it must be in the regular course of
the employee's duties and more than a
happenstance.
In sum, more than a fraction of the
employees' time must be spent on
confidential matters. 	The individual must
have access to or possess sufficient
information to warrant the conclusion that
the employer's ability to negotiate with
employees from an equal posture might be
jeopardized, and the balance in
employer-employee relations distorted, if
the information was prematurely made public.
In Campbell Union High School District (1978) PERB Decision
No. 66, the Board found principals' secretaries to be
confidential employees. 	They maintained files and processed
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correspondence relating to negotiations and grievances, and
were present at management meetings relating to those matters.
In summary, PERB has found that a confidential employee is
one of a small nucleus of individuals who, in the regular
course of his/her duties, has access to information relating to
the employer's employer-employee relations. 	This primarily
means access to negotiating data, information relating to
grievances and other employer-employee relations materials.
The receptionist/clerk I maintains files and processes
correspondence relating to classified and certificated
negotiations in the regular course of her duties. 	She assists
the administrative assistant in researching those matters and
is involved in the stream of communication between District
school board members and the superintendent's office regarding
negotiations.
The receptionist/clerk I works in the District office which
is at a physical location relatively isolated from other
District facilities and employees. 	Only the superintendent,
the three acknowledged confidential employees and the
receptionist/clerk I are assigned to work in the District
office.
The performance of the duties relating to employer-employee
relations, the physical location of the employee's work station
and the nature of the shared assignments with the three
confidential employees warrant the receptionist/clerk I's being
7

00
designated a confidential employee. 	Addition of this
confidential position to the nucleus of three existing
assignments is not extraordinary, but consistent with PERB's
previous unit determination in this District. 	(Imperial USD.
supra.")
B. 	Attendance Security Supervisor
On December 9, 1986, the District created the position of
attendance security supervisor and, on January 1, 1987, filled
the position with the individual who formerly acted as
attendance officer/security chief, George Kemper. 	The position
of attendance officer/security chief remains a vacant
classified bargaining unit position. 	A comparison of the
attendance security supervisor and attendance office/security
chief duty statements indicates virtually identical duties.
The only difference is that the attendance security supervisor
is not required to check in at least twice weekly with each of
the five school site administrators to report attendance
problems and activities and to receive direction from each.5
Kemper acknowledged that his job remained the same after
the title change. 	The major difference has been that his
release from regularly reporting to the site administrators has
allowed him more time to visit students' homes to determine the
5See Joint Exhibit #1 and District's Exhibit #1.
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nature of their absences from school. 	The principle duties of
the attendance security supervisor are to ascertain and monitor
student absence patterns, to act as liaison between the school
and parents; to resolve student attendance problems; to act as
District security officer at school functions; to deal with
disturbances, emergencies, traffic infractions, and crimes; and
to patrol sites frequented by truants and apprehend and return
truants to their schools. 	Additional specific special
assignments include: 	coordinating law enforcement protection
with local authorities and preparing and presenting truancy
cases to the District's School Attendance Review Board (SARB).
Kemper also acknowledged that he recently acted as chief
author of a District drug policy. 	He began work on the draft
in November or December 1986. 	The policy was awaiting final
approval by the District school board at the time of hearing in
this case.
Kemper is also called upon to investigate allegations of
misconduct against all District employees. 	His review of any
allegations is preliminary to local law enforcement being
contacted. 	His reports have had no binding effect in
connection with disciplinary action or the filing of criminal
charges against any employee. 	He has conducted two
investigations against District employees since 1985.
Kemper is responsible for helping to complete a grant
proposal for $15,000 through a state-funded program managed
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by the Imperial County Probation Department. 	The money, if
approved, will be used for purchasing a computer to assist in
keeping accurate attendance records for students at all five
schools and a portable radio for the attendance security
supervisor's vehicle so that he could readily contact the
Imperial Police Department if the need arises. 	The proposal,
when finally completed, will be reviewed by the superintendent
and the District school board for their approval and submission.
Finally, Kemper indicated that he acted independently in
most of his assignments. 	He has no support staff to supervise
and no other security officers to assist him in securing safe
school sites. 	He stated that he runs a one-person department
that is occasionally understaffed, yet he attempts to perform
his job in a professional but not formal manner befitting a
small rural town's schools. 	He will be expected to supervise
any employee hired to fill the vacancy of attendance
officer/security chief.6
Government Code Section 3540.l(g) states:
"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 Public Employment Relations
Board.
6Kemper clearly indicated that he has no supervisory duties
at the present time.
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In applying this definition PERB has relied on National Labor
Relations Board (NLRB) case law to support its findings. 	See
Lompoc Unified School District (1977) EERB Decision No. 13 citing
Flintkote Co. (1975) 217 NLRB No. 85 [LRRM 1295, 1297]; General
Dynamics Corporation. Convair Aerospace San Diego Operations
(1974) 213 NLRB 851 [87 LRRM 1705]; Palace Laundry Dry Cleaning
Corp. (1947) 75 NLRB 320 [21 LRRM 1039]; Eastern Camera and Photo
Corp. (1963) 140 NLRB 569 [52 LRRM 1068]; and NLRB v. Bell
Aerospace Company (1974) 416 U.S. 267 [85 LRRM 2945]. 	The NLRB
in Flintkote Co.. supra, defines managerial employees:
. . . 	as those who formulate and effectuate
management policies by expressing and making
operative the decisions of their employer,
and those who have discretion in the
performance of their jobs independent of
their employer's established policies.
In applying the NLRB finding to the public school sector the
Board in Lompoc USD, supra, 	found that a vocational education
coordinator and a Title I, Early Childhood Education Coordinator
acted as "experts in their particular field", rather than as
managers, and determined that, due to the fact their
recommendations needed the approval of at least two higher
levels, they were not managers. 	This conclusion was reached in
spite of the fact that the vocational education coordinator wrote
proposals and represented the employer at funding negotiations.
Thus, in order to be designated a management position, the
employee must have significant responsibility for formulating and
administering the employer's program. 	(See Los Rios Community
College District 1977 EERB Decision No. 18).
11

In Marin Community College District (1978) PERB Decision No.
55, and Franklin-McKinlev School District (1979) PERB Decision
No. 108, the Board held that the authority to implement the
employer's policy, not the ability to draft and/or create policy,
is the test of management employee status.
When the Board's rationale is applied to the instant case, it
cannot be found that the attendance security supervisor is a
management employee. 	It is clear that the incumbent acts as an
expert in his field but that his policy recommendations and
policy plans are reviewed by the superintendent and the District
school board before any action is taken.
The attendance security supervisor's recommendations on
truancy problems go to the school principal before going to the
SARB, a panel of 13 community members, for action. 	The SARB has
met five times during Kemper's tenure, first as truant
officer/security chief, 	then as attendance officer/security chief
and finally as attendance security supervisor, 	from March 1985
through the time of the hearing.
Kemper's recommendations on the purchase of radio equipment
and a computer will require the approval of the superintendent
and school board before action can be taken. 	The drug policy,
which Kemper has been working on with a committee, will be
reviewed by the superintendent and school board before it will be
implemented.
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CONCLUSION
Based on the entire record in this case, it is found that the
position of receptionist/clerk I is confidential as defined
within the meaning of EERA and the attendance security supervisor
is not a management employee as defined within the meaning of
EERA.
1
PROPOSED ORDER
The unit modification petition filed by CSEA to add the
receptionist/clerk I to the classified unit is hereby DENIED due
to her confidential status.
The unit modification petition filed by CSEA to add the
attendance security supervisor to the classified unit is hereby
GRANTED.
Pursuant to California Administrative Code, title 8, part III
section 32305, 	this proposed Decision and Order shall become
final unless a party files a statement of exceptions with the
Board itself at the headquarters office in Sacramento within 20
days of service of this decision. 	In accordance with PERB
Regulations, 	the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any
relied upon for such exceptions. 	See California Administration
Code, title 8, part III, section 32300. 	A document is considered
"filed" when actually received before the close of business
(5:00 p.m.) on the last day set for filing, 	. . . or when sent by
telegraph or certified or Express United States mail, postmarked
not later than the last day set for filing 	. . . " 	See
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California Administrative Code, title 8, part III, section 32135.
Code of Civil Procedure section 1013 shall apply. 	Any statement
of exceptions and supporting brief must be served concurrently
with its filing upon each party to this proceeding. 	Proof of
service shall accompany each copy served on a party or filed with
the Board itself. See California Administrative Code, title 8,
part III, sections 32300, 32305 and 32140.
DATED: 	June 30. 1987
Roger Smith
Hearing 	Officer
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