Sacramento City Unified School District (PERB 0030EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE 	EDUCATIONAL
EMPLOYMENT 	RELATIONS 	BOARD
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SACRAMENTO 	CITY 	UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
CALIFORNIA 	SCHOOL EMPLOYEES 	ASSOCIATION,
CAMELLIA 	CHAPTER 	560,
Employee 	Organization,
and
SACRAMENTO-SIERRA'S 	BUILDING AND
CONSTRUCTION TRADES 	COUNCIL,
Employee 	Organization,
and
SERVICE 	EMPLOYEES 	INTERNATIONAL 	UNION, 	LOCAL 	22,
AFL-CIO,
Employee 	Organization,
and
AMALGAMATED 	TRANSIT 	UNION, 	DIVISION 	NO. 	256,
Employee 	Organization,
and
SACRAMENTO 	ASSOCIATION 	OF 	CLASSIFIED EDUCATIONAL
EMPLOYEES,
Employee 	Organization,
and
AMERICAN 	FEDERATION 	OF 	STATE, 	COUNTY & MUNICIPAL
E.~LOYEES, LOCAL 	258,
Employee 	Organization.
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Case 	Nos. 	S-R-8
S-R-234
S-R-355
S-R-429
EERB 	Decision No. 	30A
October 	19, 	1977
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______________________ )

Appearances: 	William E. 	Brown, 	Attorney 	(Brown 	& Conradi) 	for
Sacramento 	City 	Unified 	School 	District; 	William D. 	Dobson, 	Attorney,
for 	California 	School 	Employees 	Association, 	Camellia 	Chapter 	560;
R. 	A. 	Caples 	for 	Sacramento-Sierra's 	Building and 	Construction 	Trades
Council; 	Stewart 	Weinberg 	and 	Robert 	J. 	Bezemek, 	Attorneys 	(Van 	Bourg,
Allen, 	Weinberg 	& Roger) 	for 	Service 	Employees 	International 	Union,
Local 	22, 	AFL-CIO; 	Peter 	Nussbaum, 	Attorney 	(Neyhart 	& Anderson) 	for
Amalgamated 	Transit 	Union, 	Division 	No. 	256; 	Wasle 	McKinty, 	President,
Sacramento 	Association 	of 	Classified 	Educational 	Employees; 	and
Hirsch 	Adell, 	Attorney 	(Reich, 	Adell 	& 	Crost) 	for 	American 	Federation
of 	State, 	County 	& Municipal 	Employees, 	Local 	258.
Before 	Alleyne, 	Chairman; 	Gonzales 	and 	Cossack, 	Members.
OPINION
By 	requests 	for 	recognition 	and 	interventions 	filed 	by 	the 	parties
on 	and 	after 	April 	1, 	1976 	with 	the 	Sacramento 	City 	Unified 	School
District 	(District), 	the 	parties 	sought 	at 	the 	extremes, 	a 	single
classified 	unit 	and 	eight 	distinct 	classified 	units. 	A security 	unit
was 	requested 	by 	the 	American 	Federation 	of 	State, 	County 	and 	Municipal
Employees, 	Local 	258 	(AFSCME) 	and 	Service 	Employees 	International 	Unior
Local 	22, 	AFL-CIO 	(SEIU). 	A skilled 	craft 	and 	construction 	unit 	was
sought 	by 	SEIU 	and 	Sacramento-Sierra's 	Building 	and 	Construction Trades
Council 	(Building 	Trades 	Council). 	The 	custodial 	and 	warehouse 	employees
were 	claimed 	by 	AFSCME 	and 	SEIU. 	The 	food 	services 	employees 	were 	sought
only 	by 	SEIU. 	A unit 	of 	professional/technical/reproduction 	employees
was 	sought 	by 	SEIU. 	A unit 	of 	instructional 	aides 	was 	sought 	by 	the
Sacramento 	Association 	of 	Classified 	Educational 	Employees 	(SACEE) 	and
SEIU. 	A clerical 	unit 	was 	sought 	by 	SACEE 	and 	SEID. 	Finally, 	the
transportation 	workers 	were 	sought 	as 	a 	unit 	by 	the 	Amalgamated 	Transit
Union, 	Division 	No. 	256 	(Transit 	Union) 	and 	SEID. 	CSEA 	seeks 	to
represent 	all 	classified 	employees 	described 	above 	in 	a 	single 	unit.
A hearing 	was 	held 	by 	a 	hearing 	officer 	of 	the 	Educational 	Employ-
ment 	Relations 	Board 	(EERB) 	to 	resolve 	the 	question 	of 	the 	appropriatE
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unit 	or 	units 	on 	October 	11-15 	and 	18, 	1976. 	On 	September 	20, 	1977
we 	issued 	a 	decision, 	EERB 	Decision 	No. 	30, 	finding 	the 	following
units 	to 	be 	appropriate: 	an 	instructional 	aide 	or 	paraprofessional
unit, 	an 	operations-support 	services 	unit, 	an 	office-technical 	and
business 	services 	unit, 	and 	a 	security 	officers 	unit. 	That 	decision
did 	not 	address 	numerous 	issues 	raised 	at 	the 	hearing 	regarding 	the
management, 	supervisory 	or 	confidential 	status 	of 	certain 	employees.
Subsequently, 	with 	the 	aid 	of 	an 	EERB 	agent, 	the 	parties 	entered
into 	consent 	election 	agreements 	in 	the 	instructional 	aide 	or 	para-
professional 	unit, 	the 	office-technical 	and 	business 	services 	unit,
and 	the 	security 	officers 	unit. 	In 	the 	office-technical 	and 	business
services 	unit 1and 	the 	security 	officers 2unit 	it 	was 	agreed 	among 	the
1The 	supervisory 	status 	of 	the 	following 	classifications 	is 	in
dispute: 	accounts 	payable 	supervisor, 	electronic 	data 	processing
operations 	supervisor, 	data 	control 	supervisor, 	general 	accounting
supervisor, 	key 	entry 	supervisor, 	payroll 	supervisor, 	purchasing
supervisor, 	supervisor 	of 	electronic 	data 	processing 	systems 	and
programming, 	and 	supervisor 	of 	special 	projects 	and 	program 	account-
ing. 	The 	confidential 	status 	of 	the 	following 	classifications 	is 	in
dispute: 	the 	elementary 	school 	secretary 	to 	a 	member 	of 	the 	certifi-
cated 	negotiating 	team, 	the-adult 	education 	secretary 	to 	a 	member 	of
the 	certificated negotiating 	team, 	the 	high 	school 	secretary 	to 	a
member 	of 	the 	certificated 	negotiating 	team, 	the 	junior 	high 	school
secretary 	to 	a 	member 	of 	the 	certificated negotiating 	team, 	the
elementary 	school 	secretary 	to 	a 	member 	of 	the 	classified 	negotiating
team, 	the 	junior 	high 	school 	secretary 	to 	a 	member 	of 	the 	classified
negotiating 	team, 	the 	registrar 	of 	the 	adult 	school, 	the 	high 	school
secretary 	to 	a 	member 	of 	the 	classified negotiating 	team, 	and 	the
secretary 	to 	the 	administrator 	of 	budget 	and 	special 	business 	services
who 	is 	a 	member 	of 	the 	classified negotiating 	team. 	The management
and/or 	supervisory 	status 	Of 	the 	budget 	analyst 	and 	research
specialist 	is 	in 	dispute.
2The 	supervisory 	status 	of 	th~ 	assistant 	supervisor 	of 	special
officers 	is 	in 	dispute.
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parties 	that 	persons 	whose 	supervisory, 	managerial 	or 	confidential
status 	is 	in 	dispute 	would 	vote 	subject 	to 	challenge. 	The 	parties
further 	agreed 	that 	if 	these 	challenged 	ballots 	affect 	the 	outcome
of 	the 	election, 	their 	status 	would 	be 	determined 	by 	the 	EERB 	based
on 	the 	record 	developed 	at 	the 	hearing 	held 	in 	this 	case.
The 	parties 	were 	unable 	to 	reach 	agreement 	in 	the 	operations-
support 	services 	unit 	as 	to 	those 	classifications 	which 	are 	supervi-
sory. 	Thus, 	we 	must 	determine 	the 	supervisory 	status 	of 	the 	following:
foremen, 	assistant 	foremen, 	school 	plant 	managers 	I, 	II 	and 	III, 	and
cafeteria 	managers 	I, 	II 	and 	III.
DISCUSSION
We 	have 	previously 	held 	that 	while 	the 	definition 	of 	a 	supervisor
contained 	in 	Section 	3540.l(m) 3of 	the 	Educational 	Employment 	Relations
Act 	(EERA) 	is 	virtually 	identical 	to 	that 	contained 	in 	Section 	2(11)
3Gov. 	Code 	Sec. 	3540.l(m) 	provides:
"Supervisory 	employee" 	means 	any 	employee,
regardless 	of 	job 	description, 	having
authority 	in 	the 	interest 	of 	the 	employer
to 	hire, 	transfer, 	suspend, 	lay 	off, 	recall,
promote, 	discharge, 	assign, 	reward, 	or 	dis-
cipline 	other 	employees, 	or 	the 	responsibility
to 	assign 	work 	to 	and 	direct 	them, 	or 	to 	adjust
their 	grievances, 	or 	effectively 	recommend
such 	action, 	if, 	in 	connection with 	the
foregoing 	functions, 	the 	exercise 	of 	such
authority 	is 	not 	of 	a 	merely 	routine 	or
clerical 	nature, 	but 	requires 	the 	use
of 	independent 	judgment.
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of 	the 	National 	Labor 	Relations 	Act 	(NLRA), 	the 	statutory 	scheme
of 	the 	EERA 	lends 	itself 	to 	a 	broader 	construction 	of 	the 	definition
of 	supervisor 	in 	this 	Act 	than 	the 	construction 	suggested 	by 	the
NLRA. 4 Unlike 	the 	NLRA, 	supervisors 	in 	California's 	public 	school
districts 	may 	be 	represented 	in 	negotiations 	with 	their 	employer 	so
long 	as 	they 	are 	represented 	in 	a 	unit 	separate 	from 	the 	rank 	and 	file
employees 	they 	supervise. 	We 	have 	also 	held 	that 	possession 	of 	any
one 	of 	the 	enumerated 	duties 	or 	the 	effective 	power 	to 	recommend 	such
action, 	if 	requiring 	the 	use 	of 	independent 	judgment, 	is 	sufficient
to 	make 	an 	employee 	a 	supervisor 	within 	the 	meaning 	of 	the 	EERA. 5
Finally, 	in 	applying 	this 	standard 	to 	other 	operations-support
services 	employees, 	we 	have 	held 	that 	the 	judgment 	required 	of 	an
individual 	is 	not 	rendered 	routine 	merely 	because 	much 	of 	the 	work
performed 	by 	subordinate 	employees 	is 	manual 	labor. 6 We 	conclude 	in
the 	instant 	case 	that 	the 	foremen, 	school 	plant 	managers 	I, 	II 	and 	III
and 	food 	service 	managers I, 	II 	and 	III 	are 	supervisors 	within 	the
meaning 	of 	the 	EERA. 	We 	further 	conclude 	that 	the 	assistant 	foremen
are 	not 	supervisors 	within 	the 	meaning 	of 	the 	EERA.
Skilled 	Crafts 	Foremen.
Unlike 	the 	employee 	organizations, 	the 	District 	contends 	that 	the
skilled 	crafts 	foremen 	are 	supervisors. 	We 	agree.
4sweetwater 	Union 	High 	School 	District, 	EERB 	Decision 	No. 	4,
November 	23, 	1976.
5san 	Diego 	Unified 	School 	District, 	EERB 	Decision 	No. 	8,
February 	18, 	1977.
6 Ibid.
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There 	are 	ten 	foremen 	in 	the 	District. 	The 	plumber 	foreman
supervises 	two 	job 	plumbers, 	two 	heating 	people, 	two 	plumbers, 	five
engineers 	and 	an 	assistant 	foreman. 	The 	electrical 	foreman 	supervises
five 	persons. 	The 	glazier 	foreman 	supervises 	four 	glaziers 	and 	one
apprentice 	glazier. 	The 	painter 	foreman 	supervises 	six 	painters 	and
one 	temporary 	painter. 	The 	three 	carpenter 	foremen, 	including 	the
shop 	foreman, 	supervise 	13 	carpenters, 	three 	temporary 	carpenters
and 	two 	welders. 	The 	laborer-gardener 	foremen 	supervise 	approximately
42 	laborer-gardeners 	and 	between 	six 	and 	eight 	CETA 	employees. 	The
foremen 	report 	to 	the 	coordinator 	of 	maintenance 	and 	operation, 	who
in 	turn 	reports 	to 	the 	director 	of maintenance, 	operations 	and
construction.
These 	foremen 	possess 	several 	of 	the 	indicia 	of 	supervisory 	status
enumerated 	in 	Section 	3540.l(m). 	Most 	significantly, 	their 	recommenda-
tions 	with 	respect 	to 	the 	hiring 	of 	employees 	are 	uniformly 	followed,
The 	director 	of maintenance, 	operations 	and 	construction 	testified
that 	he 	has 	"never 	hired 	a 	person 	against 	the 	recommendation 	of 	the
foreman." 	They 	assign 	employees 	and 	materials 	to 	jobs 	and 	transfer
employees 	from 	one 	site 	to 	another 	as 	needed. 	They 	schedule 	vacations.
They 	initiate 	disciplinary 	action 	and 	counsel 	the 	employee 	in 	question
with 	the 	approval 	of 	the 	director. 	Accordingl~ we 	conclude 	that 	skilled
crafts 	foremen 	are 	supervisors 	within 	the 	meaning 	of 	the 	EERA.
School 	Plant 	Managers 	I, 	II 	and 	III.
The 	District 	contends 	that 	plant 	managers 	are 	supervisors; 	the
employee 	organizations 	contend 	that 	they 	are 	not.
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There 	are 	63 	school 	plant 	managers 	I, 	12 	school 	plant 	managers 	II
and 	five 	school 	plant 	managers 	III 	in 	dispute. 	They 	supervise 	the
179 	full-time 	and 	regular 	part-time 	custodians, 	31 	night 	shift
custodians, 	four 	swimming 	pool 	custodians, 	nine 	floor 	maintenance
workers, 	two 	utility workers 	and 	eight 	grounds 	worker-movers. 	Of
the 	63 	plant 	managers 	I, 	five 	are 	employed 	at 	high 	schools 	and 	the
remaining 	58 	at 	elementary 	schools. 	Of 	the 	12 	plant 	managers 	II,
11 	are 	employed 	at 	junior 	high 	schools 	and 	one 	is 	employed 	at 	the
Skilled 	Center.
Plant 	managers 	develop 	work 	schedules. 	Generally, 	job 	assign-
ments 	change 	every 	six months 	or 	every 	year 	because 	of 	redistricting,
increase 	in 	students 	or 	moving 	of portable 	classrooms. 7 Plant 	managers
initiate 	disciplinary 	actions 	by 	initiating 	adverse 	disciplinary
evaluations. 	While 	there 	is 	some 	evidence 	that 	recommendations 	for
disciplinary 	action 	are 	independently 	reviewed, 	the 	record as 	a
whole 	indicates 	that 	the 	recommendations 	appear 	to 	be 	followed 	and
are 	rarely, 	if 	ever, 	altered 	by 	higher 	authority. 	Plant 	managers
participate 	in 	the 	hiring 	of 	custodians 	at 	individual 	schools. 	A
custodian 	is 	initially 	hired 	by 	the 	department 	of 	maintenance 	and
operations. 	The 	custodian 	is 	then 	placed 	on 	a 	floating 	assignment;
thus, 	the 	new 	custodian 	works 	at 	several 	schools 	as 	needed. 	When 	a
vacancy 	occurs 	at 	a 	particular 	school, 	the 	plant 	manager 	always
7The 	number 	of 	custodians 	assigned 	to 	a 	school 	is 	based 	on 	five
factors: 	the 	number 	of 	cl~ssrooms, 	the 	number 	of 	teachers, 	square
footage, 	the 	number 	of 	students 	and 	the 	square 	acreage 	of 	the 	individual
school 	site. 	When 	one 	factor 	in 	the 	formula 	changes, 	resulting 	in 	a
change 	in 	the 	number 	of 	custodians 	for 	the 	school 	site, 	the 	plant
manager 	revises 	the 	schedule,and 	thus 	the 	job 	assignments, 	of 	the
custodians.
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interviews 	the 	four 	or 	five 	candidates 	referred 	by 	the 	department 	of
maintenance 	and 	operations 	from 	the 	list 	of 	floating 	custodians;
school 	principals 	also 	sometimes 	participate 	in 	the 	interviews, 	The
plant manager 	and 	the 	principal 	select 	one 	candidate 	from 	among 	those
referred. 	Plant 	managers 	also 	prepare 	the 	formal 	evaluations 	of
employees. 	Even 	though 	they 	may 	not 	always 	sign 	the 	evaluations,
the 	evaluations 	they 	they 	prepare 	are 	never 	changed. 	Finally, 	plant
managers 	both 	initiate 	and 	approve 	transfer 	ot 	employees 	from 	one
school 	site 	to 	another. 	If 	an 	employee 	requests 	the 	transfer, 	the
plant 	managers 	at 	both 	the 	school 	from which 	and 	into 	which 	he 	seeks
to 	transfer 	must 	concur 	in 	recommending 	the 	transfer. 	Plant 	managers
may 	also 	initiate 	transfer 	of 	employees. 	Employees 	are 	not 	transferred
into 	the 	school 	under 	the 	jurisdiction 	of 	a 	plant 	manager 	over 	his
objections. 	Accordingly, 	we 	conclude 	that 	plant 	managers 	are 	super-
visors 	within 	the 	meaning 	of 	the 	EERA.
Food 	Service 	Managers 	I, 	II 	and 	III.
The 	District 	contends 	that 	food 	service 	(cafeteria) 	managers 	I,
II 	and 	III 	are 	supervisors; 	the 	employee 	organizations 	that 	they 	are
not.
There 	are 	24 	cafeteria 	managers 	I, 	one 	cafeteria 	manager 	II, 	and
15 	or 	16 	cafeteria 	managers 	III. 	Cafeteria managers 	report 	to 	one 	of
four 	area 	supervisors. 	The 	area 	supervisors 	report 	to 	the 	director
of 	food 	services, 	who 	in 	turn 	reports 	to 	the 	assistant 	superintendent
of 	business 	administration. 	The 	four 	area 	supervisors 	are 	located 	in
the 	District's 	administration 	building; 	the 	cafeteria managers 	are
located 	in 	the 	schools 	with 	full 	kitchens. 	Twenty-four 	of 	the 	58
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elementary 	schools 	as 	well 	as 	the 	15 	junior 	and 	senior 	high 	schools
have 	their 	own 	full 	kit~hens. 	Cafeteria managers 	I 	are 	employed 	in
the 	elementary 	schools; 	they 	are 	responsible 	solely 	for 	the 	food
prepared 	at 	the 	school. 	Cafeteria 	managers 	II 	and 	III 	are 	employed
in 	the 	junior 	and 	senior 	high 	schools 	and 	are 	responsible 	for 	the
food 	prepared 	for 	their 	own 	schools 	plus 	the 	food 	prepared 	for 	the
satellite 	schools. 	Cafeteria 	managers 	II 	and 	III 	are 	also 	responsible
for 	snack 	bars 	and 	a 	la 	carte 	services 	for 	students. 	Cafeteria
managers 	supervise 	115 	food 	service 	assistants 	I, 	69 	food 	service
assistants 	II 	and 	four 	children's 	center 	cooks.
The 	work 	assignment 	schedule 	in 	the 	secondary 	schools 	is 	changed
weekly; 	the 	cafeteria 	manager 	II 	or 	III 	determines 	for 	each 	week
which 	employee 	will 	be 	assigned which 	job. 	Cafeteria 	managers 	I,
particularly 	in 	the 	larger 	elementary 	schools, 	also 	change 	staff
assignments 	weekly. 	The 	purpose 	of 	this 	rotation 	is 	to 	make 	sure
that 	all 	employees 	can 	perform 	all 	tasks. 	Cafeteria managers 	initiate
promotion 	and 	discipline 	by 	preparing 	and 	signing 	evaluations 	of
employees; 	no 	one 	is 	permitted 	to 	change 	a 	signed 	evaluation. 	It
appears 	that 	their 	recommendations 	are 	uniformly 	followed. 	Cafeteria
managers 	keep 	the 	records 	of 	time 	worked 	by 	employees 	and 	prepare 	the
monthly 	payroll. 	They 	also 	determine 	if 	substitute 	employees 	are
needed 	and 	if 	overtime 	is 	required. 	Accordingly, 	we 	conclude 	that
cafeteria 	managers 	are 	supervisors 	within 	the 	meaning 	of 	the 	EERA.
Assistant 	Skilled 	Crafts 	Foremen.
The 	District 	contends 	that 	assistant 	skilled 	crafts 	foremen 	are
supervisors, 	while 	the 	employee 	organizations 	would 	include 	them 	in
the 	negotiating 	unit. -9-

There 	is 	one 	assistant 	plumber 	foreman, 	one 	assistant 	carpenter
foreman, 	and 	two 	assistant 	gardener/laborer 	foremen. 	The 	assistant
foremen 	assume 	the 	foremen's 	duties 	when 	foremen 	are 	on 	vacation 	or
leave; 	otherwise, 	they 	spend 	all 	of 	their 	time 	performing 	the 	same
work 	as 	other 	unit 	employees. 	There 	was 	no 	evidence 	regarding 	the
extent 	to 	which 	they 	assumed 	the 	foremen's 	authority. 	Such 	temporary
assumption 	is 	not 	sufficient 	to 	establish 	that 	assistant 	foremen 	are
supervisors 	within 	the 	meaning 	of 	the 	EERA. 8 All 	recommendations
for 	disciplinary 	action 	or 	concerning 	the 	quality 	of work 	are 	made
by 	the 	foremen. 	While 	ass is tan t 	foremen 	are 11 as surned" 	to 	make
recommendations 	to 	the 	foremen, 	there 	is 	no 	evidence 	that 	they 	in
fact 	do 	so. 	Assistant 	foremen 	do 	not 	participate 	in 	the 	hiring 	of
employees, 	nor 	do 	they 	participate 	in 	the 	written 	evaluation 	process.
There 	was 	some 	testimony 	that 	the 	assistant 	carpenter 	foremen
assign 	work 	to 	two 	carpenters. 	However, 	the 	record 	further 	discloses
that 	the 	determination 	as 	to 	what 	work 	is 	to 	be 	performed 	and by whom
is 	made 	by 	the 	director 	of 	maintenance 	and 	operations 	and 	that 	the
director 	reviews 	the 	prior 	day 1 s 	assignments 	each 	morning. 	Accordingly,
since 	they 	possess 	none 	of 	the 	criteria 	of 	supervisory 	status 	enumerated
in 	Section 	3540.l(m), 	we 	conclude 	the 	assistant 	skilled 	crafts 	foremen
are 	not 	supervisors 	within 	the 	meaning 	of 	the 	EERA.
8see 	U.S. 	Gypsum 	Co., 	116 	NLRB 	1771, 	39 	LRRM 	1091 	(1956).
-10-

ORDER
The 	Educational 	Employment 	Relations 	Board 	finds 	that:
1. 	Skilled crafts 	foremen are 	supervisors 	within 	the 	meaning
of 	Section 	3540.l(m) 	of 	the 	EERA.
2. 	School 	plant managers 	I, 	II 	and 	III 	are 	supervisors 	within
the meaning 	of 	Section 	3540.l(m) 	of 	the 	EERA.
3. 	Food 	service managers 	I, 	II 	and 	III 	are 	supervisors 	within
the 	meaning 	of 	Section 	3540.l(m) 	of 	the 	EERA.
4. 	Assistant 	skilled 	crafts 	foremen 	are 	not 	supervisors 	within
the meaning of 	Section 	3540.l(m) 	of 	the 	EERA.
By:' ~rilo~ H. 	Cossack, 	Member
Raymond 	J. 	Gonzales, 	concurring 	in 	the 	Order.
Raymond 	J. 	Gon.zales, 	Member
Reginald Alleyne, 	Chairman, 	concurring 	in 	part, 	dissenting 	in 	part:
I 	dissent 	from 	the 	order 	finding 	that 	skilled 	crafts 	foremen,
school 	plant managers 	and 	food 	services 	managers 	are 	supervisors. with-
in 	the 	meaning 	of 	the 	Act. 	I 	concur 	in 	the 	order 	finding 	that
assistant 	skilled 	crafts 	foremen 	are not 	supervisors 	within 	the
-11-

meaning 	of 	the 	Act. 	Member 	Gonzales 	concurred 	only 	in 	the 	order 	and
joined 	in 	no 	part 	of 	the 	opinion 	by Member 	Cossack, 	thus 	providing 	nc
Board 	opinion 	but 	only 	a 	Board 	order. 	This 	dissenting 	opinion 	addresseE
the 	result 	reached 	by 	the 	Board~ 	as 	reflected 	in 	the 	order, 	and 	only
incidenta.lly 	considers 	the 	opinion 	of 	Member 	Cossack.
The 	result 	reached 	by 	the 	Board 	in 	this 	case, 	in 	conjunction with
other 	Board 	decisions 	on 	supervisory 	issues, 	places 	in 	total 	disarray
the 	status 	of 	the 	Board's 	policy 	on 	employees 	alleged 	to 	be 	supervisors.
What 	this 	opinion 	and 	other 	Board 	opinions 	on 	this 	issue 	fail 	to
analyze 	with 	any 	incisiveness 	are 	the 	following 	words 	in 	the 	Act's
definition 	of 	supervisor:
. 	if, 	in 	connection with 	the 	foregoing
functions, 	the 	exercise 	of 	such 	authority
is 	not 	of 	a 	merely 	routine 	or 	clerical
nature, 	b~t 	requires 	the 	use 	of 	independent
judgment.
As 	Senator 	Flanders 	noted 	when 	the 	National 	Labor 	Relations 	Act 	was
amended 	to 	adopt 	the 	NLRA 	Section 	2(11) 	definition 	of 	supervisor 	now
found 	in 	the 	EERA:
Such 	[supervisors] 	are 	above 	the 	grade 	of
straw 	bosses, 	lead men, 	set-up 	men, 	and
other 	minor 	supervisory 	employees 	..
Their 	essential 	managerial 	duties 	are
best 	defined 	by 	the 	words 	'direct
responsibly', 	which 	I 	am 	suggesting.2
1Gov. 	Code 	Sec. 	3540.l(m).
293 	Daily 	Cong. 	Rec. 	4804 	(May 	7, 	1947). 	The 	United 	States
Sμpreme 	Court 	has 	cited with 	approval 	Senator 	Flanders' 	statement
explaining 	NLRA 	Section 	2(11). 	See 	NLRB 	v. 	Textron, 	Inc., 	416 	U.S.
267, 	85 	LRRM 	2945 	(1974).
-12-

In 	this 	case, 	the 	Board 	fails 	to 	acknowledge 	and 	apply 	the 	distinction
between 	lead 	and 	supervisory 	functions.
This 	dissenting 	opinion 	might 	be 	best 	understood 	if 	the 	Board's
meandrous 	history 	on 	supervisors 	is 	traced 	before 	the 	facts 	in 	this
case 	are 	analyzed.
I
Head 	Custodians 	in 	the 	Sweetwater
Union 	High School 	District
In 	its 	decision 	in 	Sweetwater 	Union 	High 	School 	District, 3 the
first 	on 	the 	subject, 	the 	Board 	held· that 	head 	custodians 	in 	that
District 	are 	supervisors 	within 	t~e 	meaning 	of 	the 	Act, 	even 	though
the 	record 	in 	the 	case 	revealed 	that 	the 	head 	custodians 	perform
maintenance 	and 	repair 	work 	during 	most 	of 	their 	shift 	and 	have 	no
employees 	to 	supervise 	except 	during 	the 	shift's 	last 	thirty
minutes, 	at 	which 	time 	assignments 	are 	mechanically 	made 	from 	a
schedule 	prepared 	once 	a 	year 	on 	the 	basis 	of 	a 	manual 	prepared 	by 	the
District. 	Apart 	from 	quoting 	the 	statute 	verbatim, 	the 	opinion 	of
the 	Board 	in 	that 	case 	does 	not 	use 	the 	words 	"independent 	judgment."
Members 	Gonzales 	and 	Cossack wrote 	the 	decision 	on 	head 	custodians.
I 	dissented.
Building 	Services 	Supervisors 	and 	Head 	Gardeners
in 	the 	San 	Diego 	Unified 	School 	District
Building 	services 	supervisors 	in 	the 	San 	Diego 	Unified 	School
District 	are 	like 	head 	custodians 	in 	the 	Sweetwater 	Union 	High 	School
District, 	under 	another 	name. 	In 	its 	decision 	in 	San 	Diego 	Unified
School 	District, 4 the 	Board 	held 	that 	building 	services 	supervisors
3EERB 	Decision 	No. 	4, 	November 	23, 	1976.
-·--~~---
4EERB 	Decision 	No. 	8, 	February 	18, 	1977.

and 	head 	gardeners 	are 	supervisors 	within 	the meaning 	of 	the 	Act.
The 	decision 	relies 	on 	isolated 	instances 	of 	purported 	supervisory
duties, 	describes 	them 	in 	conclusory 	rather 	than 	factual 	terms,
and 	thus 	makes 	the 	isolated 	instance 	appear 	to 	be 	the 	common 	practice.
The 	record 	showed 	that 	the 	building 	services 	supervisors 	do
maintenance 	and 	custodial 	work most 	of 	the 	day; 	that, 	like 	the 	Sweetwate
Union 	High 	School 	District 	head 	custodians, 	their 	shifts 	and 	custodians'
shifts 	overlap 	for 	a 	half 	hour. 	During 	that 	time, 	the 	custodians
prepare 	to 	follow 	a 	schedule, described 	by 	the ~uilding 	services
supervisors' 	superior 	as 	too 	routine 	to 	require 	any 	independent
judgment 	in 	its 	application. 	When 	a 	building 	services 	supervisor
was 	asked 	whether 	he 	had 	the 	authority 	to 	hire, 	transfer, 	suspend,
lay 	off, 	promote 	or 	discharge 	employees, 	he 	answered:
I 	have 	no 	authority 	to 	hire 	or 	fire,
discipline 	or what 	have 	you.
Evidence 	of 	the 	head 	gardener's ;:;upervisory 	authority was 	similarly
weak. 	The 	head 	gardener 	did work 	such 	as 	mowing 	lawns 	and 	clearing
papers 	from 	lawns. 	The 	job 	qualifications 	for 	the 	head 	gardener
position 	require, 	among 	other 	things, 	"stamina 	and 	strength 	sufficient
to 	maintain 	a 	rigorous 	work 	schedule 	requiring 	continuous 	and 	heavy
physical 	exertion. 11
The 	record 	showed 	that 	it 	is 	the 	head 	gardener's
superior, 	the 	field 	supervisor, 	and 	not 	the 	head 	gardener 	who
recommends 	transfers, 	suspensions 	and 	other 	disciplinary 	action.
Members 	Cossack 	and 	Gonzales 	signed 	this 	opinion. 	I 	dissented.
Custodial 	Foremen 	in 	the
Foothill-DeAnza 	Community 	College 	District
In 	its 	decision 	in 	Foothill-DeAnza 	Commun~ty 	College 	District, 5
5EERB 	Decision 	No. 	10, 	March 	1, 	1977.
-14-

the 	Board 	found 	that 	custodial 	foremen 	are 	not 	supervisors 	within
the 	meaning 	of 	the 	Act. 	Few 	facts 	are 	set 	out 	in 	the 	Board's 	opinion,
but 	the 	record 	in 	the 	case 	shows 	that 	the 	custodial 	foremen 	have
duties 	like 	the 	head 	custodians 	in 	the 	Sweet:'W'ater 	Union 	High 	School
District. 	They 	prepare 	evaluations; 	they 	initiate 	recommendations 	for
termination; 	they make 	out work 	schedules; 	they 	may 	take 	what 	was
described 	as 	"minor 	disciplinary 	action" 	and 	issue 	"letters 	of
reprimand"; 	they 	interview 	applicants 	for 	employment.
But 	in 	all 	of 	these 	respects, 	the 	ostensibly 	supervisory 	powers
do 	not 	require 	the 	use 	of 	independent 	judgment. 	Evaluations 	are
reviewed 	"by 	the 	next 	level 	supervisor." 	There was 	no 	evidence
that 	independent 	evaluations 	by 	custodial 	foremen 	could 	lead 	to
disciplinary 	action. 	"Minor 	disciplinary 	action" 	was 	defined, 	by
example, 	as"making 	a man who 	left 	a 	spot 	on 	the 	carpet 	clean 	it 	again."
The 	evaluations 	made 	out 	by.the 	custodial 	foremen 	may 	not 	go 	into
an 	employee's 	personnel 	record without 	the 	approval 	of 	the 	custodial
foremen's 	superior, 	the 	manager 	of 	plant 	services; 	the 	manager 	of 	plant
services 	and 	the 	custodial 	foremen 	jointly 	interview 	candidates 	and
together 	decide who 	should 	be 	hired, 	but 	the 	manager 	of 	plant 	services
has 	a 	veto 	power. 	That 	it 	is 	rarely 	exercised 	tells 	more 	about 	the
routine 	nature 	of 	custodial work 	than 	it 	does 	the 	power 	of 	the
custodial 	foremen 	to 	make 	effective 	recommendations.
Similar 	"supervisorv"powers 	were 	revealed 	in 	the 	case 	of 	the 	head
custodians 	in 	the 	Sweetwater 	decision 	and 	similar 	evidence'of 	an
absence 	of 	the 	exercise 	of 	independent 	judgment 	appears 	in 	the 	Sweetwater
record. 6
6see 	the 	quotations 	from 	the 	record 	in 	the 	dissenting 	opinion 	in
Sweetwater 	Union 	High 	School 	District, 	EERB 	Decision 	No. 	4,
November 	23, 	1976, 	and 	transcript 	pages 	52, 	60, 	61, 	136, 	137, 	160-162
in 	the 	Foothill-DeAnza 	record.
-15-

The 	two 	cases, 	Foothill-DeAnza 	and 	Sweetwater 	are 	in 	this
respect 	barely 	distinguishable. 	If 	anything, 	Foothill-DeAnza
presents 	a 	stronger 	case 	for 	finding 	a 	supervisory
status. 	In 	Sweetwater, 	the 	areas 	of 	apparent 	supervisory 	authority
(discounting 	the 	independent 	judgment 	element) 	were 	hiring, 	assigning
and 	directing. 	In 	Foothill-DeAnza, 	the 	areas 	of 	apparent 	supervisory
authority 	(discounting 	the 	independent 	judgment 	element) 	were 	hiring,
terminating, 	disciplinary 	action 	and 	assigning 	and 	directing. 	The
decision 	that 	the 	custodial 	foremen 	in 	Foothill-DeAnza 	are 	not
supervisors 	appears 	to 	be 	an 	unmistakable 	implied 	repudiation 	of 	the
Sweetwater 	supervisory 	doctrine. 	By 	any 	objective 	standard, 	it was.
No 	attempt 	was 	made 	to 	distinguish 	the 	Sweetwater 	decision 	on
supervisory 	employees; 	Sweetwater 	was 	not 	even 	cited 	in 	the 	supervisory-
issue 	section 	of 	the 	Foothill-DeAnza 	opinion.
Foothill-DeAnza 	is 	a 	unanimous 	decision 	of 	the 	Board 	on 	all
issues, 	including 	supervisory 	issues.
Department 	Heads 	in 	the 	New 	Haven 	Unified 	School 	District
Moving 	to 	the 	supervisory 	issue 	for 	certificated 	employees, 	the
Board's 	first 	decision 	was 	New Haven 	Unified 	School 	District, 7 holding,
among 	other 	things, 	that 	high 	school 	department 	heads 	are 	not 	supervisor
within 	the 	meaning 	of 	the 	Act. 	There, 	the 	Board 	for 	the 	first 	time
discussed 	the 	lead/supervisory 	distinction 	it 	had 	not 	discussed 	in
earlier 	cases 	involving 	nonprofessional 	employees. 	Citing 	a 	standard
description 	of 	a 	lead 	functiori, 	the 	Board 	stated:
[I]t 	is 	clear 	that 	department 	heads 	are
primarily 	classroom 	teachers, 	and 	in
their 	assignment 	as 	department 	heads
function 	only 	as 	an 	experienced 	employee
7EERB 	Decision 	No. 	14, 	March 	22, 	1977.

giving 	assistance 	to 	those 	less 	experienced
or 	as 	an 	administrative 	coordinator 	within
a 	department. [Emphasis 	added.]
On 	the 	supervisory 	status 	of 	department 	heads, 	the 	Board's
opinion 	is 	unanimous ..
The 	Maintenance 	and 	Operations 	Field 	Supervisor
in 	the 	San 	Rafael 	City 	High 	School 	District
In 	San 	Rafael 	City 	High 	School 	District, 9 the 	Board 	returned 	to
the 	supervisory 	issue 	in 	a 	classified 	employee 	case. 	It 	held 	that
the 	maintenance 	and 	operations 	field 	supervisor· (to 	whom 	head 	custodians
report) 	is 	not 	a 	supervisor 	within 	the meaning 	~f 	the 	Act, 	since
the 	evidence 	showed 	that 	he 	exercised 	no 	supervisory 	functions 	with
the 	use 	of 	independent 	judgment, 	and 	that 	he 	performed 	maintenance
work 	most 	of 	the 	time. 	The 	record 	disclosed 	that 	he 	occasionally
replaced 	a 	supervisor 	but 	no 	evidence 	showed what 	he 	did 	while
serving 	as 	a 	temporary 	replacement 	for 	a 	supervisor. 	The 	opinion
cites 	as 	authority 	for 	the 	lead/supervisory 	distinction 	our 	decisions
in 	New 	Haven 	Unified 	School 	District10 and 	Foothill-DeAnza 	Community
Co 11 ege 	District.. 	. 	11
8The 	example 	of 	an 	experienced 	person 	working 	with 	a 	less
experienced 	person 	is 	used 	by 	the 	National 	Labor 	Relations 	Board 	to
distinguish 	lead 	and 	supervisory 	functions. 	Teamsters, 	Local 	626
(Quality Meat 	Packing 	Co.), 	224 	NLRB 	No. 	40, 	92 	LRRM 	1295 	(1976);
House 	of Mosaics, 	Inc., 	215 	NLRB 	704, 	710, 	88 	LRRM 	1428 	(1974),
Fuqua 	Homes 	(Ohio), 	Inc., 	219 	NLRB 	No. 	162, 	90 	LRRM 	1157 	(1975). 	See
NLRB 	v. 	Monroe 	Tube 	Co., 	545 	F. 	2d 	1320, 	94 	LRRM 	2020 	(C.A. 	2, 	1976);
NLRB 	v. 	Dunkirk Motor 	Inn, 	524 	F. 	2d 	663, 	90 	LRRM 	2961 	(C.A. 	2, 	1976).
9EERB 	Decision 	No. 	32, 	October 	3, 	1977.
lOEERB 	Decision 	No. 	14, 	March 	22, 	1977.
11EERB 	Decision 	No. 	10, 	March 	1, 	1977.
-17-

I 	authored 	the 	San 	Rafael 	opinion. 	Member 	Cossack wrote 	a
separate 	concurring 	opinion 	agreeing 	that 	the 	maintenance 	and 	operati
field 	supervisor 	is 	not 	a 	supervisor 	within 	the 	meaning 	of 	the 	Act.
She 	said 	that 	"it 	appears 	from 	the 	record 	that 	the 	field 	supervisor
is 	merely 	a 	conduit 	from 	the 	director 	of maintenance 	and 	operations 	to
the 	employees 	in 	the 	assignment 	of work 	and 	the 	determination 	of
priorities 	among 	work 	projects" 	and 	that 11 there 	is 	no 	indication 	that 	in
fact 	[supervisory] 	authority 	has 	been 	exercised." 	The 	common 	ground
of 	the 	two 	separate 	opinions 	is 	the 	finding 	of 	insufficient 	evidence
that 	the 	maintenance 	and 	operations 	field 	supervisor 	is 	a 	supervisor
within 	the 	meaning 	of 	the 	Act. 12 On 	this 	issue, 	Member 	Gonzales
dissented. 13 He 	acknowledged 	that 	the 	Board 	is 	"flip-flopping" 	on
supervisory 	issues.
12At 	footnote 	5 	of Member 	Cossack's 	concurring 	opinion 	in 	the 	San
Rafael 	case, 	she 	rejects 	the 	principal 	opinion's 	statement 	that 	th-e~
District 	had 	not met 	its 	burden 	of 	proving 	the 	supervisory 	status 	of
maintenance 	and 	operations 	field 	supervisor. 	She 	concludes 	that 	"a
discussion 	of 	burden 	of 	proof 	and 	its 	role 	in 	representation 	proceedings
is 	[not] 	necessary 	to 	resolve 	the 	issue 	raised 	in 	this 	case." 	This 	con-
clusion 	is 	inconsistent 	with 	her 	finding 	that 	the 	evidence 	does 	not
support 	a 	supervisory 	status 	for 	the 	maintenance 	and 	operations 	field
supervisor. 	It 	is 	not 	possible 	to 	rule 	against 	a 	party 	on 	the 	ground
of 	insufficiency 	of 	evidence 	unless 	that 	party 	has 	the 	burden 	of 	proving
its 	case 	in 	respect 	to 	that 	evidence.
13 rn Member 	Gonzales' 	San 	Rafael 	dissenting 	opinion, 	he 	stated 	that
evidence 	that 	the 	maintenance 	and 	operations 	field 	supervisor 	had 	the
authority 	to 	direct 	and 	assign work was 	"not 	challenged 	by 	the 	other
parties 	to 	the 	hearing, 	nor 	was 	contradictory 	evidence 	presented 	on 	this
question. 11 Actually, 	the 	conclusory 	statement 	that 	the 	maintenance 	and
operations 	field 	supervisor 	could 	assign 	work was 	contradicted 	by 	no
less 	than 	the 	director 	of 	personnel 	for 	the 	District, 	who 	was 	asked:
(Continued)
-18-
And 	I 	take 	it 	the 	maintenance 	and 	operations
field 	supervisory 	has 	the 	authority, 	and
would 	in 	fact 	assign 	maintenance 	mechanics
to 	do 	repair 	work.

Summary 	of 	Precedents
on 	Supervisory 	Issues
On 	roughly 	similar 	lead/supervisory 	facts, 	the 	Board 	has
found 	a 	supervisory 	status 	in 	two 	cases, 	not 	including 	this 	one, 	and
a 	nonsupervisory 	status 	in 	three 	cases. 	The 	result 	in 	this 	case 	evens
out 	the 	count 	at 	3-3. 	Settlement 	rates 	in 	supervisory-issue 	cases
(Continued)
The 	response 	to 	the 	question 	was:
I 	question 	whether 	he 	actually 	does
that. 	I 	think 	the 	director 	[of
maintenance 	and 	operations] 	is 	involved
in 	that.
Based 	on 	his 	erroneous 	conclusion 	that 	evidence 	of 	the 	power 	to 	assign
work 	"went 	unchallenged 	at 	the 	hearing", 	Member 	Gonzales 	impliedly
criticized 	the 	hearing 	officer 	in 	the 	C?.-,Se 	for 	failing 	to 	"inquire
fully 	into 	all 	issues 	and 	obtain 	a 	complete 	record 	upon 	which 	a 	decision
can 	be 	rendered , " citing 	EERB 	Rule 	32170 (a) 	(incorrectly 	cited 	in 	the
opinion 	as 	39170(a)). 	The 	criticism was 	not 	justified. 	On 	the 	issue
of 	the 	maintenance 	and 	operations 	field 	supervisor's 	power 	to 	assign, 	th1
record 	became 	"complete" 	within 	the 	meaning 	of 	EERB 	Rule 	32170(a), 	when
the 	director 	of 	personnel 	admitted 	that 	the 	field 	supervisor's 	superior,
and 	not 	the 	field 	supervisor, 	had 	the 	power 	to 	assign. 	The 	hearing
officer 	did 	not 	even 	have 	to 	consider 	the 	sometimes 	subtle 	distinction
between 	a 	decision 	maker's 	taking 	steps 	to 	supple~ent • 	rechrd 	to 	claiif
ambiguities, 	correct 	mistaken 	testimony, 	etc., 	and 	a 	decision 	maker's
acting as 	an 	advocate 	for 	a 	partY.. 	E.g., 	the 	National 	Labor
Relations 	Board's 	Case-Handling 	Manual, 	after 	stating, 	as 	does 	EERB
Rule 	32170(a), 	that 	it 	is 	the 	hearing 	officer's 	primary 	duty 	to 	see 	that
a 	full 	record 	is 	developed/' 	also 	provides 	as 	follows:
(Continued).
-19-
It 	should 	be 	recognized 	that, 	occasionally,
the 	hearing 	officer's 	responsibility 	for 	the
development 	of 	a 	complete 	record 	may 	lead 	to
an 	appearance 	of 	undue 	assistance 	to 	a 	party
which 	does 	not 	itself 	introduce 	evidence 	in
support 	of 	its 	positions. 	In 	discharging 	his
obligation 	to 	develop 	a 	full 	record 	he 	must 	also
keep 	constantly 	in 	mind 	that 	to 	the 	parties 	he
is 	the 	representative 	of 	the 	Board 	and 	that 	they
expect 	objective 	and 	considerate 	regard 	both 	of
their 	interests 	and 	responsibilities. 	He 	should
exercise 	self-restraint, 	should 	give 	the 	parties
prior 	opportunity 	to 	develop 	points, 	and 	should
refrain 	from 	needlessly 	"taking 	over." 	2 	NLRB
Case 	Handling 	Manual 	(Representation 	Proceedings)
ITTI8Z+.I.

- . 	-
-----
should 	be 	exceptionally 	low now, 	since 	a 	losing 	party 	on 	that 	issue,
no 	matter what 	the 	hearing 	officer's 	decision, 	apparently 	has 	a 	50-50
chance 	of winning 	on 	appeal 	to 	the 	Board. 	In 	this 	case, 	as 	the
remainder 	of 	this 	opinion notes, 	the 	record 	does 	not 	support 	the 	Board's
order. 	II
Skilled 	Crafts 	Foremen 	in 	the 	Sacramento
City 	Unified .School 	District
General 	Duties 	-
	--------·-
---- 	- 	-----	-----~------""--------
' - 	- 	- -- -
---·----
~:.- ___
(Continued)
-20-
Like 	their 	counterparts 	in 	other 	districts 	in 	the 	state, 	the
foremen 	in 	the 	Sacramento 	City Unified 	SchooL District
spend most 	of 	their 	time 	doing 	the 	same work 	as 	those 	they 	purportedly
supervise. 	To 	the 	extent 	that 	their work 	does_ no.t 	parallel 	that.. of
other 	rank 	and 	file 	employees, 	it 	consists 	largely 	of minor 	recordkeeping
:.The 	director 	of maintenance, 	operations 	and 	C:Onstr.:uction 	(dire:c:.tor}±s
·in _charge· of maintenance, 	operations 	and 	cons:.ttucti.on: r:ela::tirrg: :to::.- ·
-per.s:onne-1 	within: the 	District' s 	maintenance 	s:e.c.tinrr. .: 	He:. re-ports 	to 	the _
_ Assistant 	Superintendent, 	Business 	Services. 	- A .c·oordinator- of main-
_tenance 	and 	operations 	reports 	to 	the 	director~.:- · The 	direc.tor 	testified
at 	the 	hearing 	and 	described 	the 	duties 	of 	the 	foremen whose 	supervis-ory
status 	is 	in 	dispute.
_· The_ omission 	of 	the 	latter 	half 	of 	the 	fo·rmul:a, _ as- -Jl:LS.t 	quote·d·, 	from:.:~-
EERB_ Rule 	3-2170 (:a) 	cannot 	alter 	a 	balancing 	prlnciple 	so 	firmly 	imbedded.
in 	the 	law 	and 	so 	thoroughly 	grounded 	in 	fairness 	to 	all 	parties 	that
even 	in 	civil 	cases 	where 	a 	party 	is 	not 	represented 	by 	counsel, 	a
judge 	"is 	not 	required 	to 	act 	as 	counsel 	for 	a 	litigant 	in 	the 	presen-
tation 	of 	his 	evidence." 	Lombardi 	v. 	Citizens 	Nat. 	Trust 	and 	Savings,
137 	C.A. 	2d 	206, 	209 	(1955). 	In 	the 	San 	Rafael 	case, 	the 	District, 	in
arguing, 	among 	other 	things, 	that 	the 	building 	and 	maintenance 	field_
supervisor 	is 	a 	supervisor within 	the.meaning 	of.the 	Act, 	was 	repre-
sented 	by 	counsel 	experienced 	in 	school 	labor-management 	litigation.

-- 	- 	- -
The 	amount 	and 	nature 	of 	the 	rank 	and 	file 	work 	performed 	by
the 	foremen 	varies. 	The 	director 	testified, 	for 	example, 	that 	a
foreman 	in 	a 	carpenter 	unit 	"does 	do 	a 	great 	deal 	of work 	with 	his
hands, 	because 	he 	is 	only 	supervising 	three 	men," 	that 	the 	shop
foreman who 	is 	in 	essence 	a 	carpenter 	foreman 	"has 	four 	carpenters
with 	him and 	two 	welders 	but he 	does 	all 	of 	the 	scheduling.:..::£0:r::_: __
deliveries 	. 	programs 	all 	of 	the 	trucks 	. 	records 	all 	of 	our
inventory 	. 	. 	. 	and 	takes 	care 	of 	the 	repairs· t6·- att···District equipment.'
The 	painter 	foreman, 	who 	performs 	manual 	labor 	60 	percent 	of 	the 	time,
does 	all 	of 	the 	"sign work." 	It 	may 	take 	him 	a week.to 	paint 	all 	of
the 	required 	signs; 	"he 	gets 	it 	done 	when 	he 	can," 	according 	to 	the
testimony 	of 	the 	director. 	Similarly, 	the 	roofing 	foreman 	"spends 	90
percent 	of 	his 	time 	working 	because 	he 	only has 	one 	man 	under 	him." 	The
director. testified 	that 	the 	plumber 	foreman 	only -spends. less .. Efian
ten 	percent 	of 	his 	time 	engaged 	in 	"physical --labcrr ~ ,~, - 	But 	:it 	is 	clear
from 	the 	record 	that 	the 	rest 	of 	his 	time 	is 	spent" on 	nonsupervisory
matters 	like 	providing 	material 	that 	has 	to 	be 	requested 	through 	the
director.
:_:~-~--=---_:_
- 	- ·- - ~-
-
" " -
"
Even 	in 	respect 	to 	the 	percentage 	of 	time 	purportedly 	spent
supervising 	employees, 	the 	testimony 	of 	the 	director, 	while 	using 	the
conclusory 	expression 	"supervise", 	never 	realty-sp~lled 	out 	what
superyisory 	duties 	are 	performed 	by 	the 	fore~en. =:-:-I?!:.. ta~ampl~_, =h~
testified.that 	the 	electrical 	foreman, 	who 	h~s 	rive-individuals 	under 	,_
him, 	spends 	25 	percent 	of 	his 	time 	performing manual 	labor'; 	then 	he 	said
that 	the 	electrical 	foreman 	spends 	the 	remainder 	of 	his 	time 	"supervisini
ordering materials, 	·answering requests 	for 	help· from Various 	s.chool
principals, 	maybe 	getting 	estimates 	from me." 	In 	an 	effort 	to 	further
delineate 	the working 	day 	of 	the 	electrical 	foreman, 	the 	witness 	was
asked 	what 	percentage 	of 	that 	foreman's 	time 	was 	spent 	"acquiring
- 	- 	- 	.. -
""
""
_
-21-

materials 	and 	answering 	requests 	for 	help 	and 	things 	of 	that 	nature,
as 	opposed 	to 	supervision." 	The 	answer 	was, n20 percent. " 	When 	the
interrogator 	then 	attempted 	to 	zero 	in 	on 	exactly 	what 	kind 	of
supervisory 	duties 	were 	performed 	during 	the 	remainder 	of 	the 	time,
the 	testimony 	was 	as 	follows:
A 	In 	relation 	to 	the 	plumber 	-- 	or 	the
electrician 	foreman?
Q 	Yes.
A 	Well, 	if 	he 	is 	changing 	an 	electrical
panel 	or 	putting 	in 	ten 	rooms 	of 	lights
whatever, 	there 	are 	all 	kinds 	of 	things
he 	would 	be 	supervising 	on. 	He 	lays 	out
the 	wiring. 	He 	does 	his 	own 	design 	work.
Q 	Would 	he 	be 	out 	on 	the 	job 	site 	doing
these 	things?
A 	Oh, 	yes.
Q 	And 	sometimes
A 	A great 	deal 	of 	it.
Q 	-- 	he 	would 	be 	doing 	these 	with 	other
electricians 	and 	sometimes 	on 	his 	own?
A 	Yes.
While 	the 	ordering 	of 	supplies 	and 	the 	purchasing 	of 	supplies 	is
not 	a 	supervisory 	function 	under 	the 	Act's 	definition 	of 	supervisor,
not 	even 	that 	function 	of 	foremen 	in 	the 	Sacramento 	City 	Unified 	School
District 	is 	exercised with 	the 	use 	of 	independent 	judgment. 	For 	example,
the 	director 	testified 	that 	the 	glazier 	foreman 	orders 	and 	purchases
supplies 	through 	the 	director 	and 	not 	independently. 	The 	director
determines 	whether 	the 	District 	can 	afford 	the 	supplies 	and 	whether 	they
are 	really 	needed.
Hiring 	Authority
The 	foremen 	participate 	in 	the 	hiring 	process. 	But 	mere 	participati
does 	not 	answer 	the 	question 	of whether 	an 	individual 	has 	hiring
authority 	that 11 requires 	the 	use 	of 	independent 	judgment." 	The 	director
testified 	that 	the 	personnel 	department 	of 	the 	District 	certifies 	a

certain 	number 	of 	applicants 	to 	be 	interviewed 	jointly 	by 	the
director 	and 	the 	appropriate 	foreman. 	Following 	the 	interview, 	the
director 	and 	foreman 	discuss 	the 	qualifications 	of 	the 	applicants
until 	they 	"can 	agree 	upon 	whom 	they 	think 	would 	be 	the 	best
candidate." 	Although 	the 	director 	testified 	that 	he 	had 	never 	hired
anyone 	against 	the 	recommendation 	of 	the 	foreman, 	it 	is 	clear 	from 	the
joint 	nature 	of 	the 	job 	interview 	that 	no 	foreman 	is 	able 	to
hire 	anyone 	against 	the wishes 	of 	the 	director. 	The 	joint 	interview
is 	similar 	to 	the 	interviews 	conducted 	by 	custodial 	foremen 	and 	their
supervisors	. 	in	. 	th e 	F oot h i. 11 - De Anza 	Community	. 	Co 11 ege 	District	· 	· 14 case,
noted 	earlier.
Authority 	to 	Assign
The 	record 	makes 	clear 	that 	the 	effective 	power 	to 	assign 	is
held 	by 	the 	director 	and 	not 	by 	the 	foremen. 	In 	support 	of 	this 	view,
CSEA 	called 	as 	a 	witness 	a 	plumber 	in 	the 	District's 	maintenance
department. 	He 	testified 	that 	when 	he 	arrives 	at 	work 	in 	the
morning, 	he 	picks 	up 	work 	orders 	that 	had 	been 	placed 	in 	a
---- 	.. ·-- -
mailbox 	by 	the 	foreman 	and 	that 	he 	(the 	plumber) 	makes
the 	decision 	on what 	job 	he 	will 	do. 	The 	director 	testified 	that 	he 	and
the 	coordinator 	each morning 	evaluate 	and 	formulate 	plans 	for 	the 	day
and 	give 	them 	to 	the 	foremen 	for 	execution. 	On 	the 	record 	as 	a 	whole,
it 	is 	evident 	that 	by 	the 	time 	the 	director's 	instructions 	are 	filtered
through 	the 	foremen 	to 	the 	journeymen, 	the 	"execution" 	duties 	by 	the
foremen 	are 	quite 	routine 	and 	nominal. 	The 	director 	explicitly 	stated
14Note 	5 	supra.
-23-

that 	he 	or 	the 	coordinator 	"shifted men 	around, 	moved men 	back 	and
1
forth. 115
Vacations
Scheduling 	of 	vacations 	is 	not 	a 	statutory 	supervisory 	criterion.
At 	that, 	vacations 	in 	the 	Sacramento 	City 	Unified 	School 	District 	are
scheduled 	"within 	the 	framework 	as 	defined 	in 	the 	negotiations 	with 	the
building 	trades." 	This 	means 	that 	a 	foreman 	really 	acts 	as 	a
coordinator 	in 	following 	a 	vacation 	schedule 	agreed 	upon 	by 	the 	District
and 	the 	building 	trades.
Disciplinary 	Action
The 	only 	discipline 	described 	in 	the 	record 	consists 	of 	oral
warnings 	by 	foremen. 	Foremen 	have 	no 	authority 	to 	send 	anyone 	home and
authority 	to 	suspend 	an 	employee. 	If 	a 	foreman 	files 	an 	evaluation
calling 	for 	possible 	discipline, 	the 	evaluation 	is 	filed 	with 	the
director; 	the 	director 	reviews 	the 	reGommendation 	and 	meets 	with 	the
foreman; 	next 	a 	meeting 	is 	held 	among 	the 	director, 	the 	foreman 	and 	the
employee. 	If 	the 	director 	decides 	that 	discipline 	is 	warranted, 	it 	is
·1
15Wb en 	t h e 	d irector	· 	o f 	maintenance,	. 	operations	. 	an d 	construction	.
was 	asked 	the 	question 	whether 	foremen 	regularly 	and 	effectively 	assign
work 	to 	the 	group 	that 	is 	under 	them, 	the 	hearing 	officer 	sustained
an 	objection 	to 	the 	question 	on 	the 	ground 	that 	it was 	compound, 	leading
and 	called 	for 	a 	conclusion. 	This 	was 	the 	correct 	ruling 	by 	the
hearing 	officer, 	in 	that 	the 	question 	attempted 	to 	elicit 	from 	the
witness 	a 	simple 	yes 	or 	no 	answer 	to 	a 	question 	calling 	for 	a
conclusion 	on 	the 	very 	issue 	before 	the 	Board.
At 	hearings, 	the 	perennial 	problem with 	questions 	calling 	for
a 	conclusion 	is 	that 	on 	the 	present 	issue, 	for 	example, 	a 	witness'
understanding 	of who 	is 	a 	supervisor 	and 	the 	statutory 	definition 	of 	whc
is 	a 	supervisor 	may 	be 	in 	conflict. 	Thus, 	the 	question, 	"Is 	Mr. 	X a
supervisor"? 	or 	the ·response 	that 	"I 	supervise 	five 	people," 	are 	of 	no
value 	in 	attempting 	to 	resolve 	the 	question 	of whether 	one 	is 	a 	super-
visor 	under 	the 	Act. 	At 	the 	other 	extreme, 	on 	the 	supervisory 	issue,
the 	most 	valuable 	question 	asked 	at 	the 	hearing 	in 	this 	case 	was 	a
question 	asked 	a 	cafeteria 	manager: 11 .Would 	you 	describe 	for 	us
your 	typical 	day's 	work?"
-24-

handled 	through 	his 	office 	and not 	by 	the 	foreman. 	The 	foremen's
recommendations 	for 	discipline 	are 	evaluated 	by 	others 	at 	different
levels 	and 	independently 	evaluated 	by 	the 	director 	before 	discipline
is 	invoked. 	This 	fails 	to 	demonstrate 	the 	exercise 	of 	independent
judgment by 	foremen.
Grievance-Handling 	Authority
On 	grievance-handling, 	the 	director 	testified 	as 	follows:
Q 	Okay. 	Do 	any 	of 	the 	foremen 	or 	assistant
foremen 	have 	any 	responsibility 	in 	the 	area
of 	resolving 	formal 	written 	grievances?
A 	We 	never 	had 	any, 	I 	don't 	know. 	I 	haven't
gone 	through 	it 	yet. 	Have 	we? 	Not 	in 	our
area.
MR. 	CAPLES: 	We 	don't 	operate 	that 	way .
... ,... ...1.... ••..r...	
#... 	#... 	"'
School 	Plant Managers 	in 	the
Sacramento 	City 	UriTtied 	School 	District1 6
. 	17
School 	plant 	managers 	have 	a 	custodial 	function. 	They 	are
very 	much 	like 	the 	custodialforemen 	in 	the 	Foothill-DeAnza
Community 	College 	District, 	the 	building 	and 	operations 	maintenance
supervisors in 	the 	San 	Rafael 	City 	School 	District, 	and 	the 	head
custodians 	in 	the 	Sweetwater 	Union 	High 	School 	District. 	The 	assistant
supervisor 	of 	operations 	services 	described 	managers 	I 	as 	"working
custodians 11 	and 	said 	that 	a 	manager 	I 	primarily 	performs 	the 	same 	tasks
as 	a 	regu 1 ar 	custo d ian.
16The 	proper 	title 	of 	the 	position 	is 	school 	plant 	operations
manager.
17using 	the 	figures 	provided 	by 	Member 	Cossack, 	if 	plant 	managers
are 	superivsors, -it 	would 	mean 	that 	there 	is 	one 	supervisor 	for
every 	three 	custodial 	employees 	in 	the 	District. 	There 	are 	80 	plant
managers 	and 	approximately 	210 	custodians 	and 	30 	other 	custodial
employees.
-25-

As 	described 	by 	the 	District's 	assistant 	supervisor 	of
operations 	services, 	a 	school 	plant manager 	I:
is 	responsible 	tc 	the 	administrator 	in
charge. 	He 	develops 	custodial work
schedules, 	performs 	minor 	maintenance,
orders 	custodial 	supplies, 	warehouses 	all
his 	supplies, 	he 	sets 	up 	for 	special 	Civic
Center 	permits, 	school 	functions, 	some
manager 	I's 	in 	an 	elementary 	school 	supervis~-
children at 	noontime 	in 	the 	cafeteria.
- 	_
::- :.. =:
He 	writes 	requisitions 	for 	maintenance 	and
repairs. 	Some 	plant manager 	I's also
supervise 	children 	in 	the 	yard.
Hiring 	Authority
When 	a 	vacancy 	occurs 	at 	a 	school 	site, 	the 	plant manager 	inter-
views 	four 	or 	f1ve 	candidates 	referred by 	the 	department 	of 	maintenance
and 	operations. 	These 	names 	are 	derived 	from 	a 	list 	of 	"floating
custodians" 	who 	operate 	throughout 	the 	District .. _S~hool 	p-rincipaJs
·s.ome times 	participate 	in 	the 	interviews . 	The: p-lan.:t-:- JD.anage:_r_ a;p4- -the_-·
princip-al 	select 	one 	candidate 	from 	among 	thos_e: :-r_e_f~.:re4,. 	J3eca:u_se- 9:f~
the 	principal' s 	involvement 	and 	the 	fact 	that 	these -ca_ndidates 	are 	·-
already 	custodial 	employees 	of 	the 	District, 	it 	cannot__be 	s,;1id 	that 	th_e
plant 	manager, 	in making 	a 	selection, 	exercises 	independent 	judgment.
-:-...
-- 	-=: 	___ _
Authority 	to 	Discipline
Like 	skilled 	crafts 	foremen 	in 	the 	District, 	pJap.t 	managers'
recormnendations 	for 	disciplinary 	action 	are 	ipdep~dently -reviewed by
-hi-gher 	a:utho'ri ty . 	For 	example, 	a 	custodial 	ma.:tiage_r 	JJ.·I- te:_stifie-d: -tru;t.~::--
the 	principal makes 	an 	independent 	determination 	of whether 	the 	pr-incipaJ
will 	wri·te a 	letter 	of 	reprimand 	or 	take 	other 	disciplinary 	action.
Another 	custodial 	manager 	III 	testified 	that 	when 	a 	di_sciplinary 	problem
arises, 	he 	contacts 	the 	principal 	or 	some 	other- superior 	for 	guidance.·
The 	assistant 	supervisor 	of 	operations 	services 	testified 	that 	if 	a
custodian 	performs 	in 	an 	unsatisfactory manner, 	a 	manager may 	give 	an 	ora
warning 	followed 	by 	a 	written 	reprimand 	and 	an 	evaluation recommending
: . _

terminqtion, 	but 	this 	authority 	is 	performed 	in 	conference with
the 	building 	administrator 	of 	the maintenance 	and 	operations 	department.
A manager 	I 	stated 	that 	if 	a 	custodian's 	work was 	unsatisfactory,
the 	manager 	would 	fill 	out 	an 	evaluation 	and 	give 	it 	to 	the 	principal
but 	that 	he 	had 	no 	idea what 	happened 	to 	the 	evaluation 	after 	it-was
gj.v_~_r:i __to 	the 	principal. 	The 	same 	manager 	testified 	that 	the 	pr·incip·ar-
on 	one 	occasion 	changed 	the 	manager's 	evaluation 	of 	a 	custodiah aga~nst
the 	manager's 	wishes. 	Even 	as 	used 	in 	the 	promotional 	rather 	than· the~
disciplinary 	context, 	the 	evaluation 	is 	completed 	"under 	the 	direction
and 	with 	the 	approval 	of 	the 	principal, 11
acco.r.ding. to 	a 	custodial
manager 	II.
. 	. .
·
Transfer 	Authorit~
On 	cross-examination, 	the 	assistant 	supervisor 	of 	operations
services· admitted 	that 	plant 	managers 	have 	no ··power to 	transfer·. 	A
custodial 	manager 	III 	testified 	that 	if 	a 	custodianc::desit~d= ~ transfer,"'
he' 	the 	manager' 	would 	talk 	to 	the 	principal "if lie 	felt~ that 	the t"rarfsfe
request 	had 	merit.
-
-- 	- 	~~-.~.---
Authority 	to 	Assign
Like 	their 	counterparts 	in 	other 	districts, 	plant 	managersr
assignment 	of work 	is 	routine 	and 	does 	not 	require·"the·exercise of
independent 	judgment. 	Scheduling 	takes 	place 	at 	the 	beginning 	of-the
school 	year 	and 	involves 	such 	matters 	as 	how ·many rooms 	an 	indiv1.dual 	.. -
will 	clean. 	The 	schedule 	remains 	basically 	the 	same 	throughout 	the-·schc
year.
-
Food 	Service 	(Cafeteria) 	Managers 	in 	the 	Sacramento
City 	Unified 	School 	District
General 	Duties
Cafeteria 	managers 	work 	under 	the 	supervision 	of 	area 	supervisors.
who 	spend 	"70 	percent 	of 	their 	time 	in 	the 	schools," 	even 	though 	their
-27-

offices 	are 	located 	at 	District 	headquarters. 	The 	area 	supervisors
are 	"responsible 	for 	the 	overall 	food 	service 	work 	force 	within
their 	scope 	. 	about 	75 	employees 	to 	each 	supervisor.n 	The 	day 	of
a 	cafeteria 	manager 	I 	typically 	begins 	at 	a 	school 	site 	at 	7:00 	a.m.
The 	cafeteria 	manager 	works 	from 	7:00 	a.m. 	to 	about 	9:00 	a.m., 	alone,
preparing 	food 	and 	otherwise 	preparing 	for 	the 	day's 	activities. 	If
the 	cashier 	is 	absent, 	the 	cafeteria 	manager 	serves 	as 	the 	cashier.
At 	approximately 	9:00 	a.m., 	a 	part-time 	student 	employee 	arrives 	on
the 	scene 	to 	help 	the 	cafeteria 	manager. 	Later 	in 	the 	day, 	part-time
food 	service 	assistants 	(the 	number 	averages 	three 	and 	depends 	upon
the 	size 	of 	the 	school), 	who 	work 	a 	four-hour 	day, 	report 	and 	assist 	the
cafeteria 	manager. 	When 	all 	meals 	have 	been 	served, 	the 	cafeteria
manager 	and 	the 	food 	service 	assistants 	clean 	the 	kitchen 	and 	servinf
area. 18 Other 	cafeteria manager 	duties, 	like 	ordering 	food 	and 	preparir,
reports 	and 	the 	payroll, 	are 	purely 	administrative 	and 	are 	not
supervisory within 	the 	meaning 	of 	the 	statutory 	definition. 19
18 rn 	the 	Sacramento 	City 	Unified 	School 	District, 	there 	are
cafeteria 	managers 	I, 	II, 	and 	III. 	Managers 	II 	and 	III 	have 	similar
duties. 	The 	difference 	between 	a 	manager 	I 	and 	managers 	II 	and 	III 	was
described 	by 	the 	food 	services 	director 	as 	follows:
A 	The 	manager 	I 	is 	responsible 	for 	the 	food 	preparation
in 	the 	immediate 	school 	for 	consumption 	by 	the 	students
in 	that 	school. 	There 	are 	no 	-- 	we 	have 	one 	isolated 	case
where 	we 	do 	have 	a 	satellite 	coming 	out 	of 	an 	elementary
school 	for 	a 	preschool, 	but 	the 	other 	23 	elementary kitchens
for 	the 	manager 	I's 	prepare 	food 	solely 	for 	that 	school, 	the
difference 	being 	for 	the 	manager 	II's 	and 	III's 	is 	that 	they
prepare 	food 	for 	their 	own 	schools 	plus 	their 	satellite 	school
Also, 	the 	manager 	II's 	and 	III's 	have 	snack 	bars, 	and 	they
have 	ala 	carte 	services 	for 	the 	students, 	which 	they 	don't 	ha~
in 	the 	elementary 	schools.
19 In Member 	Cossack's 	opinion, 	she 	states: 	"Cafeteria 	managers 	keef
the 	records 	of 	time 	worked 	by 	employees 	and 	prepare 	the 	monthly 	payroll.
She 	apparently 	believes 	that 	these 	are 	supervisory 	functions 	within
meaning 	of 	the 	Act. 	But 	a 	plain-meaning 	reading 	of 	the 	statutory 	de~
tion 	contained 	in 	Gov. 	Code 	Sec. 	3540.l(m) 	reveals 	that 	these 	are 	not
supervisory 	functions, 	as 	they 	are 	not 	part 	of 	the 	enumerated 	criteria.
t~~
-28-

When 	asked whether 	she 	gave 	directions, 	a 	cafeteria 	manager
testified 	at 	the 	hearing 	as 	follows:
I 	have 	suggestions 	and 	they 	are 	at
liberty 	to 	find 	their 	way 	of 	doing
[it] 	if 	it 	feels 	comfortable 	and
they 	are 	more 	efficient 	at 	it, 	but
I 	do 	suggest.
Hiring 	Au thor-i ty
Cafeteria 	managers 	do 	not 	have 	the 	authority 	to 	hire 	food
service 	assistants. 	Instead, 	the 	food 	service 	assistants 	are 	selected
from 	a 	pool 	of 	substitute 	food 	service 	workers. 	The 	process 	used 	to
select 	food 	service 	assistants 	is 	based 	upon 	a 	mechanical 	application
of 	seniority. 	The 	director's 	testimony 	in 	that 	respect was 	as 	follows:
Our 	pool 	of 	new 	employees 	is 	from 	our
substitute 	list 	where 	they 	have 	worked
as 	a 	sub 	in 	an 	elementary 	school, 	a 	junior
high, 	a 	senior 	high, 	and 	to 	possibly
working 	in 	ten 	or 	12 	different 	schools 	for
a 	period 	of 	time, 	and 	the 	managers 	in 	these
schools 	who 	have 	had 	occasion 	to 	have 	subs
make 	a 	mental 	note 	possibly 	of 	the 	subs
that 	fit 	in 	well 	with 	their 	crew 	and who
actually 	perform well.
And when 	the 	manager 	has, 	through 	attrition
or 	retirement, 	loses 	a, 	say 	a 	permanent 	four-
hour 	lady, 	and 	the manager 	will 	call 	the 	area
supervisor 	and 	say, 	"The 	sub 	that 	I 	had 	about
two 	weeks 	ago," 	and 	possibly 	give 	her 	name, 	nr
thought 	was 	an 	excellent 	worker. 	Would 	there
be 	any 	chance 	of 	getting 	her 	to 	fill 	this
position 	that 	I 	have 	open?" 	Then 	the 	area
supervisor 	will 	check 	the 	seniority 	status 	of
the 	particular 	sub 	that 	the 	manager 	requested,
and 	if 	she 	in 	fact, 	say, 	is 	No. 	2 	or 	3 	on 	the
seniority 	list, 	the 	area 	supervisor 	will 	say,
"I 	have 	to 	contact 	the 	other 	two 	subs 	who 	are
ahead 	of 	you 	to 	see 	if 	they 	would be 	interested
in 	taking 	this 	job."
If 	the 	other 	two 	subs 	say 	they 	don't 	care 	to
work 	permanently, 	that 	they 	just 	want 	to 	stay
on 	the 	sub 	list, 	or 	if 	they 	say 	that, 	"Where 	is
the 	job," 	and we 	say 	it's 	at 	a 	school, 	say, 	in
the 	South 	Area 	and 	they 	live 	in 	the 	East 	Area,
they 	may 	say, 	"No, 	I'll 	take 	my 	chances 	on 	the
next 	school 	being 	in my 	geographic 	area 	where 	I
live.
-29-

Then 	the 	supervisor, 	the 	area· supervisor
has 	now 	cleared 	the 	way 	for 	the 	sub 	who
has 	third 	ranking 	in 	seniority 	as 	to 	date
of 	hiring, 	and 	she 	will 	call 	the manager
and 	say, 	"Yes, 	you 	can have 	that 	sub 	as 	a
permanent 	employee, 	and 	I 	will 	ask 	her 	if
she 	is 	willing 	to 	accept 	the 	position."
This 	is 	how 	the 	manager 	I, 	II, 	or 	III 	has 	a
voice 	in 	the 	selection 	of 	her 	people.
Member ·-cossack' s 	opinion 	states 	that 	cafeteria managers 	"determin€
if substitute 	employees 	are 	needed 	. 	" 	Thi.s: merely means 	that,
the 	cafeteria manager 	takes 	note 	of 	a 	regular 	food 	service
assistant's 	absence. 	The 	cafeteria 	manager 	does 	not 	determine what
substitute 	employees 	to 	use. 	In 	any 	event, 	the 	selection 	of
substitutes 	is 	a 	mechanical 	process 	based 	upon_ seniority 	on 	a 	list
of 	substitutes. 	The 	record 	does 	not 	indicate .that 	cafeteria
managers 	have 	anything 	to 	do 	with 	the 	placement 	of names 	on 	that
list.
Authority 	to 	Grant 	Overtime 	-	---·-------·--·--,--···------
Member 	Cossack's 	opinion 	states: 	" [ Cafeteria managers] 	also
determine 	. 	. 	if 	overtime 	is 	required. 11
This 	gives 	the 	impressioff _
that 	a 	cafeteria manager may 	unilaterally 	approve 	overtime. 	But 	the
director 	of 	food 	services 	stated:
The 	area 	supervisor 	are 	responsible 	for
the 	menu 	planning, 	proper 	usage 	of 	food,
the 	insurance 	of 	safety 	and 	sanitation
programs 	on 	their 	daily 	visits 	to 	the
schools. 	They 	are 	to 	sample 	the 	food
that 	is 	prepared 	in 	the 	schools. 	They
are 	to 	assure 	timely 	delivery 	of 	foodstuffs
to 	the 	schools. 	They 	are 	responsible 	for'
granting 	overtime 	to 	the 	managers 	in 	the
schools 	who 	may 	have 	occasion 	to 	need 	over-
time. 	They must 	get 	approval 	from 	the 	area
supervisors, 	because 	I 	charge 	them 	each 	with
the 	fiscal 	integrity 	of 	the. schools 	assigned_
to 	them. 	[ Emphas i_s 	added. ]
-30-

And 	later, 	to 	clarify whose 	overtime 	the 	field 	supervisor 	approved,
the 	director 	testified:
Q 	Okay. 	You 	testified 	that 	the 	area
supervisors 	have 	responsibility 	for
granting 	overtime. 	Who 	did 	you mean
that 	to 	refer 	to, 	to 	which 	employees
may 	they 	grant 	overtime?
A 	Any 	of 	the 	FSA- 20 s 	or 	FSA-II's 	assigned
to 	the 	manager.
III
On 	supervisory 	issues, 	EERB 	decisions 	in 	the 	Sweetwater-San 	Diego-
Sacramento 	line 	of 	cases 	and 	the 	Foothill-DeAnza-San 	Rafael-New Haven
line 	of 	cases, 	are 	irreconcilable. 	New 	Haven 	applies 	the 	National 	Labor
Relations 	Board's 	well-established 	lead/super~isoiy 	disiinction 	to -
professional 	department 	heads 	and 	concludes 	that 	they 	are 	not 	supervisor
under 	the 	Educational 	Employment 	Relations 	Act. 	Sweetwater 	and 	San 	Dieg
and 	now 	Sacramento, 	fail 	to 	apply 	the 	lead/supervisory 	distinction 	in
cases 	concerning 	nonprof es s ion al 	employees; =-the-y--eon-e:Fttd~t-ha-t-..:...trte--=---
dispute·d employees 	are 	supervisors 	and 	are 	thus 	ex-:_cluded 	from 	the 	uriit:s.
determined 	to 	be 	appropriate. 	Nothing 	in 	the 	EERA 	justifies 	this 	dual
standard. 	It 	strips 	bare 	and 	exposes 	as 	a 	fallacy 	the 	reasonfng 	in
Sweetwater, 	and 	this 	case, 	that 	the 	EERA 	"reco'gnizes 	that 	public 	and
private 	sector 	supervisors 	differ 	in 	the 	nature 	of 	the 	autho~ity -they
20 In 	San Diego 	Unified 	School 	District, 	EERB 	Decision 	No. 	8,
February 	18, 	1977, 	the 	Board 	unanimously 	held 	that 	area 	cafeteria mariage
and 	cafeteria managers 	I 	are 	supervisors. 	The 	two 	cases 	are 	distin-
guishable. 	Unlike 	San 	Diego, 	cafeteria 	managers 	in 	this 	case 	do 	not
independently 	assign 	overtime, 	do 	not 	have 	the 	authority 	to 	recomrneru:L ____ _
discipline, 	and 	are 	"responsible" 	for 	substantially 	smaller 	sta££s...
Additionally, 	there 	is 	no 	evidence 	in 	this 	case 	that 	cafeteria managers
can -effectively 	reconrrnend 	transfers. 	In 	any 	event, 	I 	regard 	Sari ~Diego
a 	close 	case 	on 	the 	issue 	of 	the 	supervisory 	status 	of 	area 	cafete~ia
managers 	and 	cafeteria 	managers.
.. 	---------- ..
. E
-31-

possess," 21 and 	that 	the 	EERA 	"lends 	itself 	to 	a 	broader 	construction
of 	the 	definition 	of 	supervisor 	... 	than 	the 	construction 	suggestec
1the 	National 	Labor 	Relations 	Act. 122 For 	the 	rejection 	by 	the 	EERB
of 	the 	California 	Supreme 	Court's 	command 	of 	parallel 	construction 	for
California 	and 	federal 	labor 	legislation with 	parallel 	language 	is
itself 	a 	rejection 	unevenly 	applied 	by 	the 	EERB. 23 The 	EERB 	"broader
21 sweetwater 	Union 	High 	School 	District, 	EERB 	Decision 	No. 	4,
November 	23, 	1976.
22 see 	opinion 	of Member 	Cossack 	in 	the 	present 	case. 	Member 	Gonzale
as 	noted 	earlier, 	has 	neither 	joined nor 	written 	an 	opinion 	in 	this 	casE
But 	he 	expressed 	similar 	views 	in 	Sweetwater 	and 	recently 	in 	his 	dis-
senting 	opinion 	in 	the 	San 	Rafael 	case.
23 This 	follows 	from 	a 	reading 	of 	two 	decisions 	of 	the 	California
Supreme 	Court, 	Firefighters 	Union 	v. 	City 	of 	Vallejo, 	12 	Cal. 	3d 	608, 	61
87 	LRRM 	2453 	(1974) 	holding 	that 	it 	is 	appropriate 	to 	use 	National 	Labor
Relations 	Act 	precedents 	as 	a 	guide 	in 	interpreting 	analogous 	or 	identic
language 	in 	state 	labor 	legislation; 	Los 	Angeles 	Metrotolitan 	Transit
Authority 	v. 	Brotherhood 	of 	R.R. 	Trainmen, 	54 	Cal. 	2d 	84, 	46 	LRRM 	3065,
3066 	(1960), 	holding 	that 	when 	a 	later 	statute- confains 	language"fder
to 	that 	found 	in 	an 	earlier 	statute, 	"it 	will 	ordinarily 	be 	presumed
the 	Legislature··intended that 	the 	language 	as 	used 	in 	the 	later 	enactmer
would 	be 	given 	a .like 	interpretation,n 	and 	that 	this 	rule 	"is 	applicable
to 	state 	statutes 	which 	are 	patterned 	after 	federal 	statutes 	... " 	In
reliance 	upon 	this 	doctrine, 	California 	appellate 	courts 	have 	consistent
relied 	on 	National 	Labor 	Relations 	Board 	precedents 	in 	unit-determinatic
cases 	arising 	under 	the 	Meyers-Milias-Brown 	Act, 	Gov. 	Code 	Sec. 	3500
et. 	seq. 	See 	Alameda 	County 	Assistant 	Public 	Defenders 	Association 	v.
County 	of 	Alameda, 	33 	C.A. 	3d 	825, 	109 	Cal.Rptr. 	392, 	84 	LRRM 	2237 	(197~
Santa 	Clara 	County 	District 	Attorney 	Investigators 	Association 	v. 	Count)
of 	Santa 	Clara, 	51 	C.A. 	3d 	255, 	124 	Cal.Rptr. 	115, 	90 	LRRM 	3129 	(1975).
..
~
-32-
In 	many 	EERB 	unit 	cases, 	the 	use 	of 	NLRB 	precedents 	is 	prefaced
with 	the 	notation 	that 	the 	EERB 	will 	consider 	NLRA 	precedents 	where 	NLRJ
and 	F.ERA 	language 	are 	parallel. 	See 	Sweetwater 	Union 	Hi 	h 	School 	Distrj
EERB 	Decislon 	No. 	4, 	November 	23, 	197 	, 	citing 	Fire 	ig 	ters 	Union 	v.
City 	of 	Vallejo, 	supra; 	Los 	Angeles 	Unified 	School 	District, 	EERB 	Decisj
No. 	5, 	November 	24, 	1976, 	n. 	1, 	and 	California 	cases 	cited 	therein;
Oakland 	Unified 	School 	District, 	EERB 	Decision 	No. 	15, 	March 	28, 	1977,
n. 	6, 	and 	cases 	cited 	therein; 	San 	Rafael 	Cit 	Hi 	h 	School 	District, 	EEr
Decision 	No. 	32, 	October 	3, 	1977, 	n. 	, 	an 	cases 	cite 	t 	erein. 	In 	hiE
dissenting 	opinion 	in 	Los 	Rios 	Community 	College 	District, 	EERB 	Decisior
No. 	18, 	June 	9, 	1977, 	Member 	Gonzales 	relied 	upon 	approximately 	a 	dozen
National 	Labor 	Relations 	Board 	cases 	in 	articulating 	his 	views 	in 	favor
of 	the 	exclusion 	of 	part-time 	faculty 	from 	a 	unit 	of 	full-time 	facult·
in 	a 	community 	college 	district.

.cons true tion" 	principle 	did 	not 	prevent 	the 	EERB 	from 	applying 	the
NLRB's 	lead/supervisory 	distinction 	to 	white-collar 	professional
employees 	in 	the 	New Haven 	case.
The 	EERB 	is 	also 	uneven 	in 	its 	acceptance 	of 	some 	interpretations
of 	the 	National 	Labor 	Relations 	Act, 	while 	at 	the 	same 	time 	rejecting
the 	interpreted 	NLRA's 	lead/supervisory 	dichotomy. 	The 	Board 	cites
with 	approval 	and 	applies 	to 	EERB 	cases 	NLRB 	and 	federal 	cases 	inter-
preting 	the 	National 	Labor 	Relations 	Act's 	definition 	of 	supervisor
to 	mean 	that 	if 	only 	one 	of 	the 	enumerated 	supervisory 	criteria 	is
applicable, 	the 	individual 	in 	dispute 	is 	a 	supervisor 	under 	the 	Act. 24
Since 	the 	two 	statutes, 	EERA 	and 	NLRA, 	contain' the 	same 	supervisory
definition, 25 the 	EERB 	should 	accept 	the 	uniform 	application 	of 	NLRA
case 	precedents 	on 	the 	supervisory 	issue. 	The 	EERB 	should 	not 	follow
------··--------- 	·.·
24The 	case 	consistently 	cited 	for 	this 	proposition 	in 	EERB
cases 	is 	Ohio 	Power 	Co. 	v. 	NLRB, 	176 	F. 	2d 	385, 	24 LRRM 	2350 	(6th 	Cir.
1949); 	cert. 	denied, 	338 	U.~99 	(1949).
25 The 	single 	difference 	between 	the 	two 	statutory 	definitions
actually 	supports 	an 	EERB 	interpretation 	that 	should make 	it
slightly harder 	to 	find 	an 	individual 	a 	supervisor 	under 	the 	Educational
Employment 	Relations 	Act. 	The 	EERA definit:io"n~ 	n. 	3 	in Member 	Cossack's
opinion, 	contains 	the 	words 	"regardless 	of 	job 	description." 	This 	does
not 	appear 	in 	the 	National 	Labor 	Relations 	Act 	definition, 	29 	U.S.C.
~152(11). 	The 	California Legislature 	apparently 	recognized 	that 	many
job 	description 	are 	inflated 	and 	do 	not 	accurately 	reflect 	the 	work
actually 	performed 	by 	an 	individual. -
-33-
The 	Board 	implies 	that 	the 	EERA 	definition 	of 	supervisor 	should
be 	given 	a 	broader meaning 	than 	the 	NLRA's 	definition 	because 	NLRA
supervisors 	may 	not 	be 	included 	in 	any bargaining 	units 	while 	EERA
supervisors 	may 	form 	supervisory 	units. 	This 	overlooks 	(1) 	the
narrow 	circumstances 	under which 	supervisors 	may 	form 	units. under
the 	EERA 	(only when no 	one 	in 	the 	supervisory 	unit 	represented 	by
Union 	X supervises 	employees 	in 	a 	nonsupervisory 	unit 	represented
by Union 	X), 	and 	(2) 	the 	distinction 	between 	coverage 	and 	consequences
of 	coverage. 	The 	NLRA and 	EERA 	differ 	in 	respect 	to 	the 	consequences
of 	a 	supervisory 	status 	but 	not 	materially 	in 	respect 	to 	coverage 	by 	the
definition. 	Only 	11 	supervisory 	units 	have 	been 	formed 	out 	of more
than 	1,000 	units 	set 	up 	in 	EERB 	prQceedings.

NLRA precedents 	on 	one 	aspect 	of 	a 	superviso -ry -iss.ue 	and, 	at 	the 	same
time, 	reject 	NLRA precedents 	bearing 	on 	the 	same 	issue 	in 	the 	same 	case .
The 	piecemeal 	acceptance 	of 	federal 	case 	law 	seriously 	subtracts 	from
a 	singular 	advantage 	provided by 	t he 	California Legis la ture 	in :i,.ts
adoption o f 	National 	Labor 	Relations 	Act 	lang_u~ge-_Jn 	some---_b'.ut 	by .no
means- a11·:..~-port ·ions 	of 	the EERA : 	parties 	in :4:J.§.'p_ut~_s _.a.r-isipg_ under -~he
~	EERA n-e-ed: not 	atempt 	to 	predict 	in 	a 	vacuum wJr_g;.-i;. th_e:, EERB wi:11· do y7ith;-
cases- · cal-ling 	for 	interpretation of 	EERA 	sect :ipns 	h_~yj.n_g parall.el-_. ··-
language 	in 	the 	National Labor 	Relations 	Act. 	In 	such 	case_s, 	parties
should be 	able 	to 	predict with 	some 	degree 	of -aS$).lrance what 	the EERB
will 	-do 	by noting 	how , 	during 	the 	last 	42 	year_s ,. t.he 	National 	Labor
Relations 	Board 	and 	the 	federal 	courts 	have 	tnt _e_rp_re-ted -the 	Nfl,tional
Labor 	Relations 	Act. 	It 	is 	true 	that 	the 	National Labor 	Relations
Board 	is 	not 	always 	consistent 	and 	that 	some _o:f:. :i _ts ___decisi_o_ns · and _ tho§ _e
of · the 	f:e:dera.-r 	courts 	are 	and will 	continue 	t .o~ ~ ---;.5upj ~ -t - ..to _ _dj:f.:f:er~i:ng
in-t-etj>retation. 	But many will 	not 	be. 	Inst.e-_a4:., ~:m.a.:p;.y-_w-;i.).-1- be :-... -~
T-ike 	ae ·cision-s · describing 	the 	lead/supervisorY::.·d:).sJ:.ip.:ct_;i.on; 	they y1-i}l
be 	se-ttled behind years 	of 	almost 	uniformly 	a_-ppl,~ _p;r_ece,4e.nts 	tjlat
cause 	problems 	of 	interpretation 	only 	in 	the J":@.r_e., cl_o-se . case . fal _l -i~-g _ .: ·::
nearly 	at 	mid-spectrum.
/
.. 	- --- 	:.: :::
= 	- : .
·_ 	-
-·- •
-. ::. -
..
··· ·
>
·'. ·: ·. 	.: "'·.: :.
>'
- 34-
The 	key measure 	of 	the 	EERB' s 	success 	is 	the ]:"a_te 	of 	se ttlemen _t
of ·. -c ·ases 	or..iginaclly 	filed. 	In 	sum, 	the 	se ttl~en:t : J:'.~te__- -p.j.;pg_~s . -prii;1.c,,ipall
ore th e:: EERB •-s- degree 	of 	decision predic tabi li::t;Y. :: }Ji:-tJr. :_i ~s 	.<L.:9.i.§ion:s
in 	the 	·cases 	noted here 	and 	its 	dec~sion 	in 	tjl--is-__c.ase ,· ,:t:h e- Board 	q_efeats
that 	objec -tive 	in respect 	to 	the 	important 	is -s-ue- of: who 	is . a 	supervJsor·
within 	the 	meaning 	of 	the 	Educational 	Employment 	Relations 	Act .
R~ginala' Alleyne, 	Chairman

srATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS :OOARD
In the Matter of:
SACRAMENTO CITY UNIFIED SQfOOL DISI'RICT,
E.mployei;:,
and
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
CAf1EI.LIA CHAPTER 560,
Employee Organization,
and
SACRAMENTO-SIERRA'S BUILDING AND
CONSTRUCTION TRADES COUNCIL,
Employee Organization,
and
_SERVI~ -~YEES INI'ERNATIONAL UNION, IDCAL 22,
AFL-CIO,
-~loyee Organization,
-and
AMALGAMATED TRANSIT UNION, 	DIVISION NO. 	256,
Employee Organization,
and
SACRAMENTO ASSOCIATION OF CLASSIFIED EDUCATIONAL
EMPLOYEES,
Employee Organization,
and
AMERICAN FEDERATION OF srATE, 	COUNTY & MUNICIPAL
EMPLOYEES
Employee Organization.
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____ _.;. _____________
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Case Nos. 	s:.R-8
s.,.R-234
S-R.:.355
S-R-429
EERB- ~~;i~i?tl No_. 	30A
October 19, 1977
ORDER

The Educational Employment Relations Board finds 	that:
1. 	Skilled crafts 	forerren are superviso rs wi.thin the rrean.L,g of
Section 3540 . l(m) of the EERA.
2. 	School plant managers I, 	II and III are supervisors within the
neaning of Section 3540 .l(m) 	of the EERA .
. 	3. 	Food service managers I, 	II and III are supervisors within the
meaning of Section 3540 .1 (m) 	of the EERA.
4. 	Assistant skilled crafts foreIIED. are not supervisors within the
meaning of Section 3540 .l(m) 	of the EERA.
Educational Employment Relations Board
by
Stephen Barber
Executive Assistant to the Board
10/19/77
)