Calexico Unified School District (PERB 0800E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER
NO. 3 99,
Exclusive Representative,
and
CALEXICO UNIFIED SCHOOL 	DISTRICT,
Employer.
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) 	Case No. 	LA-UM-407
(R-461)
PERB Decision No. 	800
March 29, 	1990
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Appearance: 	Atkinson, 	Andelson, 	Loya, 	Ruud & Romo by James C.
Romo, 	Attorney, 	for Calexico Unified School District.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the 	Calexico 	Unified School 	District 	(District) 	to 	a 	PERB hearing
officer's proposed decision. 	Pursuant to 	PERB 	Regulation
32781(a)(2)1 the California 	School 	Employees Association and 	its
1PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 	et seq. 	PERB Regulation 32781
states, 	in pertinent part:
Parties who wish to 	obtain Board approval 	of
a 	unit 	modification may 	file 	a petition 	in
accordance with the provisions 	of 	this
section.
(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 	regulation was 	subsequently amended, 	effective 	February 	1,
1989. 	This 	change has no 	impact on the disposition of this 	case,
Chapter No. 	399 	(CSEA or Association) 	filed a unit modification
petition on December 	1, 	1986. 	In its petition, 	CSEA sought to
include 	the 	District's 	newly 	created Assistant 	Personnel 	Clerk
(APC) 	position within the 	existing wall-to-wall unit of
classified employees, 	of which CSEA is 	the exclusive
representative. 	The 	hearing 	officer rejected 	the 	District's
allegations 	that 	the APC position 	should be designated as 	a
"confidential 	employee," 	as 	defined under the Educational
Employment Relations Act 	(EERA) 	section 3540.l(c).2
Accordingly, 	the hearing officer granted the Association's 	unit
modification petition.
We 	have 	examined the 	record, 	including 	the proposed decision
and 	the 	District's 	exceptions, 	and reverse 	the hearing officer's
decision 	for the 	reasons 	discussed below.
2EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3540.1 	states, 	in pertinent
part:
As 	used 	in this 	chapter:
(c) 	"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.
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FACTUAL 	SUMMARY
Prior to 	September 	1986, 	the 	District 	employed approximately
475 	employees, 	4 of whom filled confidential positions. 	In
September 	1986, 	the District 	created a 	fifth confidential
position, 	the APC. 	The APC job description 	(Jt. 	Exh. 	No. 	1) 	has
two primary 	sections. 	One 	section 	lists 	the 	specific 	recruitment
and 	selection duties 	that 	only the APC would 	complete 	and be 	held
accountable 	for. 	The other 	section describes 	"other personnel
related duties" 	where the APC would assist 	the personnel 	clerk
(PC)3 in completing certain tasks. 	It is undisputed that a
majority of these tasks 	are confidential duties. 	Generally, 	the
confidential 	duties 	of 	the APC primarily 	involved maintaining
employee 	confidential 	files,4 collecting 	information necessary
for the 	formulation of bargaining unit 	contract proposals, 	and
gathering 	and 	investigating 	information 	regarding 	employee
grievances.
In September 	1986, 	the District hired Augustina Samaniego to
fill 	the 	newly created APC position. 	During the 	five months
3The 	PC position was 	one 	of 	the 	four original 	confidential
positions 	existing prior to 	the 	creation of 	the APC.
4The 	District maintained two 	sets 	of 	files 	for 	each
employee: 	(1) 	a public 	file 	containing personal data and work
history; 	and 	(2) 	a confidential 	file containing evaluations,
reprimands, 	and records 	of disciplinary actions. 	Both 	sets 	of
files 	had 	recently 	been 	transferred 	from 	the 	superintendent's
secretary to 	the office 	space 	occupied by the APC 	and PC. 	The
record 	shows 	that only the APC 	and PC had regular access 	to 	the
locked 	confidential 	files, 	even though employees 	could obtain a
limited 	supervised 	review.
w	3

prior to 	the hearing, 	Samaniego was 	trained and performed 	all
tasks 	assigned to her. 	However, 	very 	few of these tasks 	included
the 	confidential 	tasks 	listed 	in her 	job description. 	At 	the
time 	of 	the hearing, 	there had been no grievances 	filed during
her five months of 	service. 	Irene Gruenberg, 	personnel 	clerk and
Samaniego's 	supervisor, 	testified that the 	negotiation process
had 	been 	completed before 	Samaniego 	could 	"get 	her 	feet wet." 	No
negotiations 	were 	scheduled until 	the 	following 	spring.
Consequently, 	Samaniego had not 	investigated any 	grievances 	and
she 	had 	not 	been 	involved 	in any bargaining unit 	negotiations.
At the 	same time, 	however, 	there was 	evidence at the hearing that
she 	had 	contacted 	other 	school 	districts 	in the 	Imperial 	Valley
to 	obtain 	salary bus 	schedules 	for bus 	drivers, 	and that 	she had
taken notes 	at a District management meeting. 	Additionally, 	the
evidence 	indicated 	that 	she possessed more 	than mere 	access 	to
the 	confidential 	employee 	files 	as 	she had pulled 	information
from these 	files 	at the 	request 	of 	the assistant 	superintendent.
DISCUSSION
The 	issue before the Board 	is 	to what 	extent must 	an
employer, 	in a unit modification petition hearing where the
petition 	seeks 	to 	include 	the 	employer's 	newly 	created
confidential position in the bargaining unit, 	provide 	evidence
that 	confidential 	duties 	have 	actually been performed. 	Because
the 	District 	failed 	to 	show that 	Samaniego 	had 	actually performed
her expected 	confidential duties by the time of 	the hearing, 	the
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hearing 	officer 	granted 	the Association's 	unit 	modification
petition.
In Sierra 	Sands 	Unified School 	District 	(1976) 	EERB Decision
No. 	2,5 the 	Board 	stated that 	an employer 	"should be 	allowed a
small 	nucleus 	of 	the 	employer's positions 	for purposes 	of
employer-employee 	relations." 	PERB 	has 	typically determined 	a
position to be 	confidential, 	as defined by EERA section
3540.l(c), 	by looking to the job description, 	the immediate
supervisor, 	the relationship of 	the position to the 	supervisor,
the 	expected role that the position is 	intended to 	serve, 	and
past performance. 	(See 	Sierra 	Sands 	Unified School 	District.
supra: 	Fremont Unified School District 	(1976) 	EERB Decision
No. 	6; 	Campbell Union High School District 	(1978) 	PERB Decision
No. 	66; 	and Unit Determination for Professional Librarians 	of the
University of California 	(1983) 	PERB Decision No. 	247b-H.)
Here, 	the position met the definition of a confidential
employee as 	set 	forth in section 3540.l(c). 	The APC's 	immediate
supervisor 	is 	a 	confidential 	employee who 	the APC will 	assist 	in
a 	number of 	confidential matters, 	as 	listed 	in the 	job
description. 	Moreover, 	the testimony at the hearing 	indicated
that 	both 	Samaniego 	and Gruenberg 	regard their positions 	as
interchangeable 	and 	closely connected. 	Despite 	these 	factors,
the 	hearing 	officer 	found 	the 	confidential 	classification 	too
speculative 	because 	Samaniego 	had 	not 	yet performed most 	of 	the
5Prior to January 	1, 	1978, 	PERB was known as the Educational
Employment 	Relations 	Board.
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confidential 	tasks 	listed 	in the 	job description during her 	first
five months 	of 	employment 	in the APC position.
In deciding whether a position is 	confidential, 	the Board
usually has 	had 	the benefit 	of 	examining positions 	that have
existed 	for a number of years. 	(See 	Sierra 	Sands 	Unified 	School
District, 	supra, 	EERB Decision No. 	2; 	Fremont Unified School
District. 	supra, 	PERB Decision No. 	66; 	and Unit Determination for
Professional 	Librarians 	of 	the University of California, 	supra,
PERB Decision No. 	247b-H.) 	However, 	where an employer creates a
new position and classifies 	it as 	confidential, 	evidence of
actually performed 	confidential 	duties 	may not 	always 	exist. 	The
APC's 	confidential 	duties 	primarily 	involve 	the 	area 	of
grievances, 	bargaining unit negotiations, 	and confidential
personnel 	files. 	Although there was 	evidence 	that 	Samaniego 	had
pulled 	information 	from 	employee 	confidential 	files 	for 	the
deputy 	superintendent, 	the 	record contained no 	evidence 	of 	her
performing 	confidential 	duties 	relating to 	grievances 	and
negotiations. 	On the other hand, 	no grievances were 	filed during
the 	five-month period 	in which Samaniego worked as 	the APC, 	and
negotiations were not 	expected to begin until 	spring. 	The 	Board
has 	found 	that 	the 	frequency with which an 	employee 	has 	access 	to
or possesses 	confidential 	information 	is 	not 	controlling 	if 	such
access 	or possession 	is 	in the 	regular course 	of 	an employee's
duties 	and more 	than a happenstance. 	(Imperial 	Unified 	School
District 	(1987) 	PERB Decision No. 	647; 	Unit Determination for
Professional 	Librarians 	of 	the University of California, 	supra,
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PERB Decision No. 	247b-H.) 	The Board finds 	that 	the undisputed
testimony, 	coupled with the APC 	job description, 	confidential
status 	of 	the APC's 	supervisor, 	and interchangeable duties
between the APC 	and the 	supervisor, 	constitutes 	sufficient
evidence 	that 	the APC position 	is 	confidential 	as 	defined 	in
EERA, 	and, 	therefore, 	properly excluded from the bargaining
unit.6
ORDER
For the reasons 	discussed above, 	the request 	for the unit
modification petition in Case No. 	LA-UM-407 	is hereby DENIED.
Members 	Craib 	and 	Shank 	joined 	in this 	Decision.
66 It is, 	however, 	important to note the hearing officer's
concern 	that 	employers 	may 	attempt 	to 	create 	so-called
"confidential" 	positions 	in order to 	exclude employees 	from 	the
bargaining unit. 	An employer's 	ability to 	circumvent 	the
bargaining unit 	remains 	limited by 	the 	Sierra 	Sands 	"small
nucleus" 	test. 	Here, 	the APC position did not exceed the Sierra
Sands 	"small 	nucleus" 	limitation, 	since it 	left the District with
5 	confidential positions 	from the total 	475 	employees.
Additionally, 	an association can, 	at any time, 	challenge whether
a 	district's 	confidential 	position 	actually performs 	confidential
tasks.
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