San Rafael City Schools (PERB 0032E)

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STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
SAN RAFAEL CITY SCHOOLS,
Employer,
and
CIVIL SERVICE ASSOCIATION,
LOCAL 400, SEIU,
Employee Organization,
and
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
CHAPTER #341,
Employee Organization.
Case Nos. SF-R-13
SF-R-128
EERB Decision No. 32
October 3, 1977
Appearances: 	Richard V. Godino, Attorney (Breon, Galgani and Godino) for San Rafael
City Schools; Robert J. Bezemek, Attorney (Van Bourg, Allen, Weinberg and Roger) for
Civil Service Association, Local 400, SEIU; Greg Dunn, Field Representative, for
California School Employees Association, Chapter #341.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
The questions presented for decision by the Educational Employment Relations
Board (EERB) are whether the hearing officer correctly concluded (1) 	that a maintenance
and operations field supervisor employed by the San Rafael City Schools is a supervisor
within the meaning of Government Code Section 3540.l(m); and (2) that the following
employees of the San Rafael City Schools are confidential employees within the meaning
of Government Code Section 3540.1(c): administrative secretary to the assistant
superintendent for business services, administrative secretary to the director of
instruction, intermediate clerk-typist - personnel office. 	California School Employees

Association (CSEA) filed exceptions to these findings and conclusions; Civil
Service Association, Local 400, Service Employees International Union (SEIU),
excepted only to the hearing officer's findings and conclusions concerning the
maintenance and operations field supervisor. 1 The District argues in favor of
rejecting the exceptions and sustaining the hearing officer in all respects. 	We
sustain the hearing officer's proposed confidential-employee decision and reverse
the hearing officer's proposed supervisory-employee decision.
The Confidential Employees Issue
Government Code Section 3540.l(c) provides:
"Confidential 	employee" 	means any employee who, in the
regular course of his duties, has access to, or possesses
information relating to, his employer's employer-employee
relations.
Administrative Secretary to Assistant Superintendent for Business Services
The assistant superintendent for business services is an active member of the
District's negotiating team, where he serves as an expert on District finances.
His administrative secretary, the disputed position, is responsible for preparing
financial projections used during negotiations. 	She thus has access to information
on the positions to be taken by the District at negotiating sessions. 	This is
confidential information relating to the "employer's employer-employee relations",
since it is information "that if made public prematurely might jeopardize the employer's
1Other issues decided by the hearing officer dealt with SEIU's standing to
intervene in the representation proceedings leading to the hearing officer's decision
and this appeal, 	the appropriateness of a unit of classified employees and the
confidential status of two other employees. 	No exceptions were filed by any party
in respect to these issues, which are fully discussed in the hearing officer's
proposed decision, dated April 1, 1977. 	The hearing officer's proposed decision
also provides the full background of events leading to the representation dispute
and its treatment by the EERB preliminary to the hearing.
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ability to negotiate with employees from an equal posture." 2
CSEA concedes that the administrative secretary to the assistant superintendent
for business services has access to the District's financial proposals, and does not
deny that this is confidential information. 	CSEA argues that she spends "only a
relatively small percentage of her time typing financial proposals which may be
used in negotiations."
Although the administrative secretary to the assistant superintendent for
business services spends only a small portion of her time typing financial proposals
to be used in negotiations, that is sufficient to make her a confidential employee.
Government Code Section 3540.l(c) only requires that an individual have access to
confidential matters "in the regular course" of one's duties or to "possess
information" relating to employer-employee relations. 	The frequency with which an
employee has access to or possesses information of a confidential nature is not
controlling; "possession" or "access" is sufficient if the "access" or "possession"
is in the regular course of the individual's duties and is more than a happenstance.
Administrative Secretary to the Director of Instruction
The director of instruction, like the assistant superintendent for business
services, is a member of the District's negotiating team. 	His administrative
secretary, whose position is in dispute, performs duties similar to those of the
administrative secretary to the assistant superintendent for business services.
In typing position papers for the director of instruction, she has access to
information concerning the District's position on various topics that arise during
the course of negotiations.
2Sierra Sands Unified School District, EERB Decision No. 2, October 14, 1976.
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CSEA argues that the confidential information to which she has access relates
to certificated and not classified employees. 	We think that is not controlling
since Government Code Section 3540.l(c), by its terms, makes no such distinction
but only establishes the criteria of "access" or "possession" in the regular course
of duties performed.
Intermediate Clerk-Typist - Personnel Office
The intermediate clerk-typist types and duplicates employer proposals.
Last year, she attended all certificated negotiating sessions, kept notes of those
sessions and, along with others, typed and collated both proposals and counter
proposals. 	'During the period that negotiations are conducted, most
of her time is occupied by these duties.
CSEA takes the position that the intermediate clerk-typist is simply a note-
taker who is not "attached" to a member of the management team and that her functions
can be easily transferred to others. 	We find, however, that the statutory definition
of confidential employee does not make a confidential status hinge on whether an
employee's functions may be transferred to others, but rather on the single factual
basis of what a disputed individual's work actually entails.
The Supervisory Issue
Government Code Section 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 discipline 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
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functions, the exercise of such authority is not of a merely-
routine or clerical nature, but requires the use of indepen-
dent judgment.
In prior decisions, we have held that the satisfaction of any one of the
supervisory criteria enumerated in the statutory definition is sufficient to
make an individual a supervisor.4
The Maintenance and Operations Field Supervisor
The hearing officer found that "the record in support of a finding that the
maintenance and operations field supervisor is a supervisorial employee within the
meaning of Government Code [Section] 3540.l(m) is, indeed, weak." 	She further stated:
The job description indicates he 	'may assist in review of
job applicants,' but the testimony indicates that an
independent determination would be made by the director of
personnel. 	Thus, it cannot be said that his recommendations
are routinely followed. 	The record indicates that he could
participate in disciplining or recommending discipline of
employees, but not that he has done so in fact, or that it
was effective.
The maintenance and field supervisor does, however, replace
the director of maintenance and operations when the director
is on vacation or ill, he does direct the maintenance mechanics
3
As we have noted in prior decisions, the supervisory definition in Gov. Code
Sec. 3540.l(m) is an almost exact replica of the definition of supervisor found in
Section 2(11) of the National Labor Relations Act, 29 U.S.C. 152 (11). 	We accordingly
look to National Labor Relations Act precedents as an aid in interpreting Gov. Code
Sec. 3540.l(m). 	In our decision in 	Los Angeles Unified School District, EERB Decision
No. 5, November 23, 1976, we said:
While we are not bound by N.L.R.B. decisions, we will take
cognizance of them, where appropriate. 	Where provisions of
California and federal labor legislation are parallel, the
California courts have sanctioned the use of federal statutes
and decisions arising thereunder, to aid in interpreting the
identical or analogous California legislation. 	Alameda County
Assistant Public Defenders' Assn. v. County of Alameda, 33 C A .
3d 825, 829 (1973); Fire Fighters' Union v. City of Vallejo,
12 C. 3d 608, 615-616 (1974); Social Workers Union Local 535,
SEIU, AFL-CIO v. Alameda County Welfare Dept., 11 C. 3d 382, 391
(1974); American Federation of State, etc. Employees, Local 685 v.
County of Los Angeles, 58 C A . 3d 601, 605, 606 (1976.
4Sweetwater Union High School District, EERB Decision No. 4, November 23, 1976;
San Diego Unified School District, EERB Decision No. 8, February 18, 1977; Foothill-DeAnza
Community College District, EERB Decision No. 10, March 1, 1977; Lompoc Unified School
District, EERB Decision No. 13, March 17, 1977; Oakland Unified School District, EERB
Decision No. 15, March 28, 1977; Los Rios Community College District, EERB Decision No. 18,
June 9, 1977.

and ground crew, and make work assignments to them, and
he is responsible for inspecting conditions before and
after work has been completed. 	In addition, the main-
tenance and field supervisor is on an annual salary and
is excluded from overtime pay, a secondary indicia of
supervisory capacity.
We find that the maintenance and operations field supervisor does not use
independent judgment in exercising in a manner that is not routine any of the
supervisory criteria in Government Code Section 3540.1(m).
In response to the question whether the maintenance and operations field
supervisor recommended anyone for hiring or ever recommended the discharge of an
employee, the answer of the District's director of personnel on cross-examination was:
It is not inconceivable, although I don't have a specific
instance that he could have recommended a custodian for
hire.
Q. 	And you can't recall any specific instance of a field
supervisor recommending that an employee be fired,
can you?
A. 	In the — the answer is 	the same for hiring.
Q. 	No?
A. 	That is correct.
When asked whether the maintenance and operations field supervisor disciplined
employees or recommended discipline for employees, 	the director of personnel's
answer was: 	"He could, yes." 	But no examples were provided. 	In answer to the
question whether the field supervisor ever interviewed any job applicants within the
last year, the answer was:
I couldn't tell you without referring to our records.
To the limited extent that the field supervisor participated in interviews,the record
reflects that the principal, the assistant principal and the director of maintenance
and operations, who supervises the maintenance and operations field supervisor, also
participated in the interviews.
The record also reflects that the field supervisor spends much, if
not the majority of his time doing non-supervisory work and functions
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"as an experienced employee giving assistance to those less experienced." 5
Concerning his purported power to assign or direct, 	the evidence on direct examination
of the District's 	personnel director is merely the conclusory assertion that he
"does direct the work of the ground crew" , 	and that he has the function "of
assigning work to employees." 	The only non-conclusory evidence of the
maintenance and operations field supervisor directing other employees revealed that
he directs other employees in the planting of trees; 	that he would receive
his instructions from the director of maintenance and operations, go out with a
ground crew, 	give directions and also assist them in the planting of trees.
The only evidence indicating supervisory power is the field supervisor's job des-
cription, but the Legislature recognized the well-established industrial practice
of inflating job descriptions by providing in the first sentence in the definition
of supervisor that "any employee, regardless of job description . . . " 	[Emphasis
added]. 	Counsel for the District was also aware of the unreliability
of job descriptions, 	for he began one sequence of his direct examination of the
District's director of personnel by stating:
Realizing the limitation which most job descriptions
have, could you perhaps tell us just from your own
personal knowledge, what it is that a [maintenance
and operations supervisor] really does?
With the exception of the assignment and direction of work, 	concerning which
we find no evidence of the use of independent judgment, there is no evidence that the
maintenance and operations field supervisor exercises any other supervisory functions
with or without the use of "independent judgment" within the meaning of Government
Code Section 3540.l(m).
The record reflects that it is the director of maintenance and operations
and not the maintenance and operations field supervisor who exercises some of the
5 See New Haven Unified School District, EERB Decision No. 14, pp. 7-8
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supervisory functions listed in Government Code Section 3540.l(m), including the
power to assign employees. 	For example, the director of personnel was asked:
And I take it the maintenance and operations field
supervisor has the authority, and would in fact
assign maintenance mechanics to do repair work.
The answer to the question was:
I question whether he actually does that. 	I think
the director [of maintenance and operations] is
involved in that•
The director of maintenance and operations also plans and administers the corrective
maintenance programs for District-owned equipment and vehicles, determines where
maintenance mechanics work, assigns maintenance mechanics to do plumbing, sprinkler
and hearting repair work at school sites.
Thus, it appears that the District failed to satisfy its burden of establishing
that the maintenance and operations field supervisor directs or assigns employees in a
non-routine manner and with the use of independent judgment.6
As the hearing officer noted, the maintenance and operations field supervisor
replaces the director of maintenance and operations when the director is on vacation
or ill. 	We find that the record says nothing more than that. 	There is no indication
of what he does when he replaces the director of maintenance and operations. 	The
mere substitution for a supervisor without the exercise of supervisory authority
does not confer supervisory status.7 One who spends most of the working day doing
non-supervisory work and who exercises supervisory authority only in the absence of
a superior is not a supervisor, as the NLRB has held.
8
6 See Foothill DeAnza Community College District, EERB Decision No. 10,
March 1, 1977, pp. 4-6.
7 Fred Rogers Co., 226 NLRB No. 175, 93 LRRM 1470 (1976); The Boston Store, 221
NLRB 1126, 91 LRRM 1076 (1975).
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V
8Green Brothers Lumber Corp., 158 NLRB 1642, 62 LRRM 1198 (1966); Muscle Shoals
Rubber Co., 157 NLRB 829, 61 LRRM 1460 (1966) decides that a maintenance employee who
performs manual work is not a supervisor within the meaning of the NLRA even though he
exercises supervisory authority when he substitutes for supervisors, attends supervisory
meetings, and his rate of pay is substantially higher than that of other employees.

The District did not 	sustain its burden of 	establishing the 	supervisory
status of 	the maintenance and operations 	field 	supervisor.
ORDER
(1) 	The 	following are 	"confidential employees" within the meaning of
Government Code Section 3540.l(c):
administrative 	secretary to the assistant superintendent
for business 	services
administrative 	secretary 	to the director of 	instruction
intermediate clerk-typist 	- 	personnel office
( 2) 	The maintenance and operations 	field supervisor is not a 	"supervisory
employee" within the meaning of Government Code Section 3540.l ( m).
> • 	I 	r
Reginald Alleyne, 	Chairman
Jerilou H. 	Cossack, 	Member, 	concurring:
I 	agree 	that 	the administrative 	secretary to the assistant 	superintendent
for business 	services, 	the administrative 	secretary to the director of 	instruction
and the 	intermediate 	clerk-typist - 	personnel office are confidential employees .
I 	also agree 	that 	in this 	case 	the maintenance and operations 	field 	supervisor 	is
not 	a 	supervisor within the meaning of 	the Educational Employment Relations Act
( EERA ) .
I 	do not agree with the underlying policy of 	the Chairman ' s 	opinion that
Section 3540.l ( m) 1 should be 	interpreted as 	identical with Section 2(11) 	of 	the
1Gov . 	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 discipline
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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National Labor Relations Act (NLRA). 	Rather, 	I adhere to the basic policy enunciated
by a majority of the Board in Sweetwater Union High School District 2 that supervisors
under the EERA must be treated differently than supervisors under the NLRA. 	The
EERA expressly allows supervisors to be represented in a negotiating unit separate
from those employees they supervise. 	The NLRA does not.
In the application of this policy, we must examine each case on its individual
merits. 	The mere fact that a person holds a job, 	the title of which designates him
as a supervisor, is not in and of itself determinative of his status. 	Furthermore,
the fact that a job title is analogous to the job titles of persons found in other
cases to be supervisors is also not determinative of his status. 	In the final
analysis, 	it is the duties which the person actually performs which must determine
whether or not he is a supervisor within the meaning of the EERA.
We have previously recognized that the nature of the authority held by public
sector supervisors differs considerably from that held by their private sector
3
counterparts. 	Supervisors in the public sector, in contrast to their counterparts
in the private sector, do not exercise ultimate authority. 	That authority is
retained by governing boards of districts. 	Since the field supervisor does not
retain ultimate power to exercise any of the indicia of supervisory status outlined
by Section 3540.l(m), 	the effectiveness of his recommendations and the regularity
with which they are followed become 	critical in determining his supervisory status.
In Sweetwater Union High School District the head custodians interviewed
applicants for hire; their recommendations were followed 99 percent of the time.
They also established the work assignments for crew members; 	these assignments
2
EERB Decision No. 4, November 23, 1976.
3
Sweetwater Union High School District, 	supra.
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rarely, 	if ever, 	were altered by higher authority . 	In San Diego Unified School
,District, 4 building service supervisors prepared work schedules, 	approved overtime
schedules, 	and approved timesheets. 	Moreover, 	their recommendations regarding
dismissal, 	transfer, 	and suspension of 	employees had uniformly been followed.
Conversely, 	in the 	instant case 	while 	there 	is 	testimony that 	the 	field
supervisor may recommend employees 	for hire, 	dismissal or disciplinary action,
there 	is no 	indication that 	in fact 	this authority has been exercised or, 	if
exercised, 	the extent 	to which the recommendations have been followed . 	Further,
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.
Accordingly, 	I 	conclude that 	the 	field supervisor in the 	instant case 	is
not a 	supervisor within the meaning of 	the EERA. s
,,~ 	efilou H. 	Cossack, 	Member
Raymond J . 	Gonzales, 	dissenting in part:
We have unanimously agreed 	that 	the exercise of only one of 	the enumerated
criteria set forth in Section 3540.1 (m) , 	if requiring the exercise of 	independent
4EERB Decision No. 	8, 	February 18, 	1977.
5The Chairman's opinion states 	that the District has not met 	its burden
of proof 	to establish the 	field supervisor as a 	supervisor . 	I 	do not think
that a 	discussion of burden of proof 	and its role 	in representation proceedings
is necessary to resolve the 	issue raised in this case . 	Further, 	no party raised
this as an issue here.
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judgment, is sufficient to render one a supervisor.1 While the record is "weak"
regarding various criteria mentioned in Section 3540.1(m) 	and which tend to be
focused on by my colleagues, there can be no doubt as to other parts of the
record. 	My colleagues conveniently discount that part of the record where it
is undisputedly clear regarding certain powers of the maintenance and field
supervisor. 	These are that the maintenance and field supervisor has the independent
authority to direct, assign, and inspect certain employees' work. 	In so doing,
he determines the order in which the work is to be performed and he possesses
the authority to tell a crew member to do additional work as needed, which in
my view, amply reflects supervisory status, since he has authority "in the
interest of the employer...to assign work to and direct" the members of his
crew. 	Thus, 	for the foregoing reasons essentially stated in the proposed
decision, I disagree with my colleagues that the maintenance and field supervisor
is not a supervisor within the meaning of Section 3540.1(m). 	Moreover, such
secondary indicia as the maintenance and field supervisor's receiving an annual
salary, unlike his colleagues, as well as not being entitled to overtime pay,
supports this conclusion.
I would like to add to this partial dissent a comment regarding the
inconsistency of the Board relative to the various supervisory issues that
have come before the Board. 	I feel Sweetwater Union High School District
clearly set forth the standard to be used in determining supervisor status,
namely the satisfaction of any one of the supervisory criteria enumerated in
the statutory definition as noted above. 	Thus far, both the Board and the Board's
hearing officers have been applying this language in a variety of ways based on
sometimes less than ideal records of a case. 	The resulting effect has been a
variety of decisions that have gone in many different directions.
In the present case we have again what appears to be a shift in position,
or perhaps more aptly stated, a contradiction of our enunciated policy in
Sweetwater Union High School District relative to the supervisory issue.
Member Cossack, 	though professing to support the 	Board's enunciation of supervisory
criteria in the Sweetwater Union High School District decision, actually does an
about-face. 	Member Cossack states in her concurrence that in Sweetwater Union
High School District we held that head custodians "established the work assignments
for crew members." 	This one factor alone would be sufficient to grant supervisory
status since the Board has agreed in previous cases that only one of the criteria
1
«
Supra note 4 	(Chairman Alleyne's concurring opinion).
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in the supervisory definition must be met. 	Member Cossack lightly dismisses
the "assigning work to employees" statement made by the District personnel
director in a single sentence of her concurrence when she states 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...." 	She adds nothing to support her argument that the field supervisor
is "merely a conduit". 	We have here in Member Cossack's statement the very
type of conclusory remark objected to by Chairman Alleyne in his separate
concurrence.
Regarding Chairman Alleyne's rejection of the District's personnel
director's testimony concerning the field supervisor's authority to "direct
the work of a ground crew" and responsibility "of assigning work to employees,"
it is my view that it is not in the province of this Board to conclude
that these statements are "conclusory assertions". 	The record indicates that
the statements were not challenged by the other parties to the hearing, nor was
contrary evidence presented on this question. 	It is my opinion that the statement
as to the supervisor's authority to "assign work" must be taken as fact unless
we, the Board, wish to challenge the credibility of the witness, since the
statement went unchallenged at the hearing. 2
It is my belief that the role of head custodians in Sweetwater Union High
School District and of the field supervisors in San Rafael is identical as it
relates to the assignment of work and supervision of the crews. 	For this 	Board
to continue "flip-flopping" as we have done on the supervisory issue, can only
lead to continued confusion for the parties. 	Either we must conclude that we
will always have nebulous details and "conclusory statements" on the record to
deal with or we must begin to give some guidance and direction to our hearing
officer's so they may prepare better records on which to render a decision.
2See e.g., In re Charyn, a recent California case which although clearly
distinguishable on the facts, provides some guidance in this area. 	There, the
Court held that "...before a court may disregard uncontradicted testimony either
of the following factors must appear: 	(1) A satisfaction on the part of the
factfinder that the witnesses are not telling the truth; or 	(2) 	a finding that
the testimony is inherently improbable due to inaccuracy, uncertainty, lapse
of time or interest or bias of the witness." 	71 Cal. App. 3d 355, 366 	(1977).
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I realize that some individuals may oppose a more vigorous role for EERB
hearing officer's at the hearings. 	I also realize the importance of maintaining
neutrality and that questions by the hearing officers may appear to some to
violate that neutrality. 	But I believe the language of our procedural rules
is sufficient to grant them the authority needed to prepare the best record
possible. 	Section 39170 	(a) of the Board's procedural rules states that the
hearing officer has the authority to "inquire fully into all issues and obtain
a complete record upon which a decision can be rendered." 	Unless the supervisory
issues arising in future hearings are dealt with in more detail by the parties
and the hearing officers, 	I am afraid the supervisory issues coming before the
Board will never lend themselves to precedential decisions by this 	Board.
Except for the supervisory issue, 	I concur with the majority in all other
aspects of this decision.
: 	Raymond J. Gonzales, Member
Dated: 	October 3, 1977
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STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
SAN RAFAEL CITY HIGH SCHOOL DISTRICT,
Employer,
and
CIVIL SERVICE ASSOCIATION,
LOCAL 4 00, 	SEIU,
and
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
CHAPTER #341,
Enployee Organization .
)
)
)
~
Case Nos . SF-R~1~8
S F-R- 128Employee Organization,
EERB Decision No . 	32
ORDER
) 	)
)
)
)
)
)
)
___________________,
The Educational Employment Relations Board directs that :
The following are "confidential employees" within the meaning of
Government Code Section 3540 . 1 (c) :
administrative secretary to the assistant superintendent
for business services
administrative secretary to the director of 	instruction
intermediate clerk-typist 	- personnel office
The maintenance and operations field supervisor is not a "supervisory
employee" within the meaning of Government Code Section 3540 . 1 (m) .
Educational Employment Relations Board
by
STEPHEN BARBER
Executive Assistant to the Board
10/3/77
() 	~	A 	"