Antioch Unified School District (PERB 0415E)

STATE OF CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
ANTIOCH UNIFIED SCHOOL DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION 	)
AND 	ITS ANTIOCH CHAPTER #85,
Employee 	Organization.
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) 	Case 	No. 	SF-UM-306
PERB 	Decision 	No. 	415
October 	12, 	1984
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Appearances; 	Michael Aidan, 	Field Representative for
California 	School Employees Association 	and 	its Antioch Chapter
#85; Janae H. Novotny, Attorney 	(Atkinson, Andelson, Loya, Ruud
& 	Romo) 	for Antioch Unified School District.
Before Tovar, 	Jaeger and Morgenstern, 	Members.
DECISION
MORGENSTERN, 	Member: 	California School Employees
Association and 	its Antioch Chapter 	#85 	(CSEA) 	appeals 	the
attached 	administrative determination 	by an 	agent 	of 	the 	Public
Employment Relations Board 	(PERB or Board). 	Finding 	that the
positions of Food Service Cook Managers 	I, 	II and III 	are
supervisory within the meaning 	of subsection 3540.l(m) 	of 	the
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Educational Employment Relations Act 	(EERA or Act), 	the
1EERA 	is codified 	at Government Code 	section 	3540 	et 	seq.
Subsection 3540.1(m) 	provides:
"Supervisory 	employee" 	means 	any employee,
regardless of job description, 	having
authority 	in 	the 	interest of 	the employer 	to
___)

Board 	agent 	granted 	the Antioch 	Unified 	School District's
(District) 	petition 	for 	unit modification and ordered 	the
positions 	deleted 	from the operations/support 	services 	unit
represented 	by 	CSEA.
The Board 	has 	reviewed 	the administrative determination 	in
light of CSEA's appeal and 	the entire 	record 	in 	this case.
Finding 	the Board 	agent's 	findings 	of 	fact and conclusions 	of
law 	free 	from prejudicial error, 	we adopt 	them as 	the 	findings
of the Board 	itself. 	In addition, 	for 	the reasons discussed
herein, 	we reject two grounds 	for 	appeal 	asserted by CSEA which
were 	not considered 	by the Board 	agent 	in her 	administrative
determination.
DISCUSSION
CSEA first argues 	that 	the 	District's 	unit modification
petition 	is 	invalid because 	it was originally filed pursuant 	to
a rule which 	"no 	longer 	exists," 	and because 	it was not 	filed
"on 	forms provided 	by 	the Board."
The District's 	unit modification petition was 	initially
filed on September 13, 	1982, 	pursuant to then-existing
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.
N	2

2
regulation 	33261(b)(1).2 Because 	PERB was 	then 	in 	the
process of revising 	its 	regulations, 	on November 	2, 	1982, 	the
petition 	was 	put 	in 	abeyance 	at 	the 	District's 	request 	"until
PERB's 	proposed 	unit 	modification 	rules 	go 	into 	effect."
PERB's 	revised 	regulations 	became 	effective February 	14, 	1983
and, 	on March 2 2 , 	1983, 	the District requested 	that 	its
3petition 	be 	reactivated 	"pursuant 	to 	the 	new PERB rules."33
2 PERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 	8, 	section 	31001 et seq.
At 	the 	time 	of 	the District's 	original 	filing, 	regulation
33261(b)(1) 	authorized an 	employer 	to 	file 	a 	petition 	for
change 	in 	unit 	determination:
To 	delete 	classifications 	no 	longer 	in
existence 	or 	which 	by virtue 	of 	changes 	in
circumstances 	are 	no 	longer 	appropriate 	to
the 	established 	unit.
3Specifically, 	previous 	rule 	33261 (b) 	was 	renumbered 	as
rule 32781(b); 	subsection 	(1) 	was retained without change, 	and
a 	new 	subsection 	(5) 	was 	added 	which 	provides 	an 	additional
basis 	for 	filing 	a petition 	for 	change 	in 	unit 	determination:
To 	delete 	classification(s) 	or 	position(s)
. 	. 	. 	which are not appropriate to 	the unit
because 	said 	classification(s) 	or 	position(s)
are management, 	supervisory or 	confidential,
provided 	that:
(A) 	The petition 	is 	filed 	jointly by 	the
employer 	and 	the 	recognized 	or 	certified
employee organization, 	or
(B) 	There 	is not 	in effect a 	lawful
written 	agreement 	or 	memorandum 	of
understanding, or
(C) 	The petition 	is 	filed during 	the
"window period" 	of 	a 	lawful 	written 	agreement
or 	memorandum 	of 	understanding 	. . . .
W3

Contrary 	to CSEA's contentions, 	the mere renumbering of a
rule does not affect either 	the 	"existence" 	of 	the rule or 	the
validity of actions commenced 	thereunder. 	Neither 	would we
find 	it necessary to 	require 	a formal amendment of 	a petition
to reflect a 	technical change 	in rule number. 	More to the
point, 	however, 	here the District clearly intended to change
the 	basis 	for 	its petition and 	to proceed 	under 	the more
liberal 	provisions of 	the rule as 	amended. 	This 	intention was
expressly 	indicated 	in the letters of November 	2, 	1982 	and
March 22, 	1983, 	both of which were properly served on CSEA.
Moreover, 	the 	facts 	to which 	both parties 	stipulated 	and 	the
briefs 	filed by both parties 	address 	the 	issue 	of 	supervisory
status, 	relevant to a determination under 	rule 32781(b)(5),
rather 	than the question of changes 	in circumstances, 	relevant
under rule 32781(b) (1) .
Thus, 	CSEA clearly knew and understood 	that 	the District's
petition would be decided under 	rule 32781(b)(5). 	In 	these
circumstances, 	no purpose would be served by requiring 	a 	formal
amendment of 	the petition, 	and we decline 	to 	impose 	such
requirement here.
Similarly, 	the fact that the petition was not filed 	"on
forms provided by the Board," 	as 	required under 	rule 32781(e),
does 	not 	render 	the petition 	invalid.
CSEA next 	argues 	that 	the 	District's 	unit modification
petition 	should 	be 	dismissed 	because 	it 	is 	allegedly motivated,
not by a genuine 	belief 	that 	the managers 	are supervisors, 	but
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as 	a 	union-busting 	tactic 	for 	the purpose 	of limiting 	the
impact of concerted 	activities.
In Los Gatos Joint Union High 	School District 	(11/14/83)
PERB Decision No. 	355, 	the district opposed a unit modification
request filed by an exclusive representative, 	arguing, 	inter
alia, 	that 	the association had unlawfully permitted 	a
supervisor 	to 	sign 	the association's proof 	of support
petition. 	The Board stated 	that, 	in opposing a unit
modification 	request, 	an employer may raise 	the 	argument 	that
the 	proof of 	support was 	inadequate 	or 	somehow 	"tainted 	by
- -	
fraud or 	illegality." 	Los Gatos, 	supra, 	p. 	3. 	The Board there
found no evidence 	that 	the proof of 	support was 	so 	tainted.
Applying 	that principle 	to the 	instant case, 	we 	find 	that
CSEA could 	prevail 	if 	it 	successfully argued 	that 	the 	District
had 	fraudulently misrepresented 	the 	duties 	performed 	by 	the
Food 	Service Cook Managers, 	illegally changed 	their 	duties 	so
as to give 	the appearance of supervisory 	status, 	or 	engaged 	in
some other 	fraudulent or 	illegal conduct. 	While motivation
might 	well 	be 	an 	important 	factor 	in determining whether 	the
District acted 	fraudulently or 	illegally, 	no argument or
allegation 	of 	such conduct 	is advanced here.
The District 	is 	accused not of having acted 	illegally 	in
seeking 	to modify the unit, 	only of 	improper motivation. 	But
the 	District's 	motives can have no bearing on our 	factual
determination 	of whether 	the 	employees 	are 	supervisory 	within
the meaning of 	the Act. 	Any claim which CSEA may have
UT	
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regarding 	District conduct which 	allegedly 	interferes 	with 	its
statutory 	rights 	or with 	the 	rights 	of employees which 	it
represents 	is properly brought as an unfair 	practice charge.
ORDER
Based on 	the 	foregoing, 	the unit modification petition
filed 	by 	the Antioch 	Unified 	School District 	is GRANTED.
Food 	Service Cook Managers 	I, 	II 	and III 	shall be excluded
from the operations/support 	services 	unit.
An amended 	unit 	certification will 	be 	issued 	in 	accordance
therewith.
Members 	Tovar 	and Jaeger 	joined 	in 	this Decision.
66

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
)
ANTIOCH UNIFIED SCHOOL 	DISTRICT,
Employer,
-and-
CALIFORNIA 	SCHOOL EMPLOYEES
ASSOCIATION AND 	ITS 	ANTIOCH
CHAPTER 	#85,
Employee Organization.
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) 	Case 	No.
SF-UM-306 	(R-145B)
Administrative 	Determination
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PROCEDURAL 	HISTORY
On September 	13, 	1982, 	the Antioch Unified 	School District
(District) 	filed 	with 	the 	Public Employment 	Relations Board
(PERB or 	Board) 	a 	unit modification petition 	to delete eight
positions 	as 	supervisory 	from 	the 	operations/support 	services
unit 	represented 	by 	the 	California 	School 	Employees 	Association
and 	its 	Antioch 	Chapter 	#85 	(Association).1 On 	November 	1,
1383, 	the District 	requested 	that 	its 	petition 	be put 	in
abeyance 	pending 	issuance 	of 	new 	proposed 	PERB 	Regulations.
The 	request was 	granted,2 and 	the 	petition 	was 	held 	in
1The 	Association was 	certified 	as 	the 	exclusive
representative 	of 	the 	operations/support 	services 	unit 	on
February 3, 	1978.
2 The 	Association 	was 	informed 	by 	letter 	of 	the 	request
for 	abeyance 	and 	did 	not 	file 	any 	objections.

abeyance 	until March 	23, 	1983 when 	it 	was 	reactivated pursuant
to 	the District's 	request.
On March 	31, 	1983 	an 	informal settlement 	conference was
held 	wherein 	a 	settlement 	agreement 	was 	reached 	regarding 	five
of 	the eight positions, 	leaving 	only 	the positions 	of 	Food
Service Cook Managers 	I, 	II 	and 	III 	in dispute.
An 	investigation was 	held 	regarding 	these 	positions 	on
September 	21, 	1983, 	and February 28, 	1984. 	During the
investigation, 	the parties 	submitted 	joint 	exhibits 	and 	entered
into 	stipulations 	of 	fact, 	and 	responses 	to specific questions
were 	elicited 	from 	representative 	employees 	in 	the 	disputed
classifications.
The 	issue 	to 	be decided 	herein 	is 	whether 	or 	not 	the
positions of 	Food 	Service Cook Managers 	I, 	II, 	and 	III 	are
supervisory within the meaning 	of 	section 	3540.1(m) 	of 	the
Educational Employment 	Relations 	Act 	(EERA)3 and 	should
therefore 	be 	deleted 	from 	the 	operations/support 	services 	unit.
DISCUSSION
Section 3540.1(m) 	states:
"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
3 The 	EERA 	is 	codified 	at Government Code 	section 	3540 	et
seq. 	All 	statutory 	references 	herein 	are 	to 	the Government
Code 	unless 	otherwise 	noted.
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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 merely of
a 	routine or 	clerical 	nature, 	but 	requires
the 	use 	of 	independent 	judgment.
Section 	3540.1(m) 	is written 	in 	the disjunctive; 	therefore,
an 	employee 	need 	perform 	or 	effectively 	recommend 	only one 	of
the 	enumerated 	functions 	or 	duties 	to 	be 	a 	supervisor.
Sweetwater 	Union High 	School 	District 	(11/23/76) 	EERB 	Decision
No. 4, at p. 12.4
There 	are 	nine Food 	Service 	Cook Managers 	in 	the 	District:
six 	Food 	Service Cook Managers 	I, 	each 	of 	whom maintains 	an
elementary school 	kitchen; 	one Food 	Service Cook Manager 	II,
who maintains 	an 	elementary 	school 	kitchen 	which 	prepares 	its
own meals 	as well 	as meals 	for 	another 	elementary 	school; 	and
three 	Food 	Service Cook Managers 	III, 	two 	of 	whom maintain 	the
two 	junior 	high 	school 	kitchens 	and 	one who maintains 	the 	high
school 	kitchen. 	All 	Food 	Service Cook Managers 	report directly
to 	the Director 	of 	Food 	Services.
The 	number 	of 	food 	service 	employees 	in 	each 	kitchen
varies. 	The Food. Service Cook Managers 	I 	oversee 	the work of
three employees: 	one 	food service assistant 	I, 	one food service
assistant 	III 	and 	one 	cashier. 	The 	Food 	Service 	Cook Manager
II 	oversees 	the work of 	eight 	employees: 	four 	food 	service
4Prior 	to January 	1, 	1978, 	the PERB was 	known 	as 	the
Educational Employment 	Relations Board 	(EERB).
33

assistants 	I, 	two 	food 	service 	assistants 	III, 	and 	two
cashiers. 	The Food 	Service Cook Managers 	III 	oversee 	the 	work
of 	seven 	to eight 	employees: 	three 	to 	four 	food 	service
assistants 	I, 	three 	food 	service 	assistants 	II 	and 	one 	food
service 	assistant 	III.
The Food 	Service 	Cook Managers 	all 	work 	either 	a 	seven 	or
seven 	and 	one-half 	hour 	day, 	while 	the 	cashiers 	and 	food
service 	assistants 	work 	in hourly 	slots 	of 	varying 	lengths,
i.e., 	food 	service 	assistants 	III 	work 	6 	to 7 	1/2 	hour 	shifts,
food 	service assistants 	II 	work 	5 	1/2 hour 	shifts, 	and 	food
service 	assistants 	I 	work 	2 	to 	3 	1/2 	hour 	shifts. 	Food Service
Cook Managers 	are 	paid 	at 	a 	higher 	range 	on 	the 	salary 	schedule
than 	other 	food 	service 	employees.
Food 	Service 	Cook 	Managers 	assign 	food 	service 	employees
food preparation, 	serving, 	and cleanup 	tasks 	according 	to 	the
number 	of hours 	they work, 	their 	abilities, 	and 	the 	needs 	of
the 	kitchen. 	If 	the 	assistants 	or 	the 	cashiers 	complete 	their
duties 	early, 	or 	if 	the workload 	is 	heavy, 	the Manager will
direct 	them 	to help out with 	other 	tasks 	as 	needed. 	The Food
Service 	Cook Managers 	train 	new 	substitutes 	and 	food 	service
assistants 	transferred into 	their kitchens. 	If 	time 	allows,
they 	try 	to cross-train 	the 	employees.
The 	Food 	Service 	Cook Managers 	spend 	the 	majority 	of 	their
time 	preparing, 	serving 	and 	ordering 	food. 	Some 	Food 	Service
Cook Managers 	have offices 	with 	a 	desk 	and 	a 	telephone. 	They
4

attend 	monthly meetings 	with 	the 	Director 	of 	Food 	Service 	to
discuss 	their 	operations. 	The Director 	occasionally 	visits 	the
kitchens, 	both 	formally 	(for 	the purpose of 	inspection) 	and
5
informally 	(to make deliveries).
Food 	Service 	Cook 	Managers 	participate 	in 	the 	promotion 	of
food 	service 	assistants 	by 	serving 	on 	an 	interview 	panel
composed 	of 	three 	Food 	Service Cook Managers 	and 	the 	Director
of 	Food 	Service. 	The 	interviews 	are 	limited 	to 	the 	top three
applicants 	on 	an 	eligibility 	list 	established 	pursuant 	to
Personnel Commission 	rules. 	Seniority 	is 	an 	important 	factor
in 	the 	selection of 	a 	candidate.6 Final 	selection 	is 	made 	by
consensus 	of 	the panel. 	The Director 	of 	Food 	Service 	has 	never
overruled 	the 	panel's 	choice 	of 	a 	candidate.
5At 	the 	time 	of 	the 	second 	day of 	investigation 	(February
28, 	1984), 	the Food Service Cook Manager 	II 	and one Food
Service Cook Manager 	I 	stated 	that 	the 	Director 	had 	not 	visited
their 	kitchens 	at 	all 	this 	year. 	The Food Service Cook 	.
Managers 	III 	and 	two Food 	Service 	Cook Managers 	II 	stated 	that
the 	Director 	had 	visited 	their 	kitchens 	from 	2 - 6 	times 	to
date.
6Article 	15.3.4 of 	the 	current 	collective 	bargaining
agreement 	between 	the 	Association 	and 	the District 	states,
regarding 	promotion:
If 	two 	or more 	applicants 	are 	equally qualified,
the 	employee with 	the 	greatest 	hire 	date
seniority 	shall 	be 	offered 	the 	position. 	If 	the
list 	is 	insufficient 	(less 	than 	three
applicants), 	then additional names 	shall be 	taken
from 	the 	open 	list 	pursuant 	to 	the 	Personnel
Commission Rules. 	If 	two or 	more applicants 	are
equally qualified, 	the 	employee with 	the 	greatest
hire-date 	seniority 	shall 	be offered 	the 	position.
5

To 	the 	best 	recollection of 	both 	parties, 	every Food
Service Assistant 	I 	currently 	employed 	by 	the 	District 	was
initially 	a 	substitute 	employee. 	When 	a 	vacancy 	for 	this
position occurs, 	it 	is 	first posted 	to allow for 	transfers
within 	the District. 	If 	there 	are 	no 	applications 	for
transfer, 	the Director 	of 	Food 	Service 	screens 	those
.. . .
substitutes 	in 	the 	top 	three 	ranks 	on 	the 	open 	eligibility 	list
for 	their 	availability. 	She 	then 	asks 	the Food 	Service Cook
Manager 	of 	the 	kitchen with 	the 	vacant 	position 	to 	choose 	from
those 	substitutes 	available 	in 	the 	top 	three 	ranks. 	If 	the
Food 	Service 	Cook Manager 	is 	unfamiliar 	with 	the 	available
candidates, 	she may 	try 	them out 	in her 	kitchen prior 	to making
a 	decision. 	Based 	on 	her 	knowledge 	and/or 	on-site 	observation
of 	the 	candidates, 	the Manager 	decides 	which 	individual 	to
hire. 	These 	decisions 	have 	never 	been overruled 	by 	the
Director.
When a food 	service employee 	is 	absent, 	the 	employee
reports 	her 	absence 	to 	the district office, 	and 	a 	secretary
routinely 	calls 	a 	substitute. 	The 	Food 	Service 	Cook Manager
may 	ask 	that 	a particular 	substitute 	not 	be 	assigned 	to her
kitchen 	if 	she 	feels 	that 	the 	substitute's 	performance has
previously 	been 	unsatisfactory. 	If 	the 	absentee 	is 	a 	food
service 	assistant, 	the 	other 	food 	service 	assistants 	move 	up
(by 	seniority) 	to 	fill 	her 	slot, 	leaving 	the 	lowest position 	to
6
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be 	filled 	by 	the 	substitute.7 If 	the Food 	Service 	Cook
Manager 	has prior 	knowledge 	of 	an absence, 	or 	if 	she 	knows 	that
her 	workload will 	be 	light 	that 	day, 	she may 	decide 	to 	ask
another 	food 	service 	assistant 	to 	cover 	the 	absence 	rather 	than
employ a 	substitute. 	When 	the position 	for 	which 	the 	employee
is. filling, in 	is paid 	at a higher 	range on the 	salary schedule,
the 	employee will 	receive 	the 	higher 	rate of 	pay. 	The Food
Service Cook Managers 	have 	the 	authority 	to 	assign 	extra 	hours
to 	food 	service employees, 	although 	this 	is 	done 	on 	a voluntary
basis 	by seniority.
Food 	Service 	Cook 	Managers 	evaluate 	the 	permanent 	employees
in 	their 	kitchens 	at 	least 	once 	a 	year. 	They 	fill 	out 	a
standard 	evaluation 	form 	and 	discuss 	it 	with 	the 	employee.
They 	both 	sign 	the 	form 	and 	send 	it 	to 	the Director 	of 	Food
Service, 	who reviews 	the 	form, 	signs 	it and 	returns a copy to
the 	employee. 	The Director 	of 	Food 	Services 	has 	never 	changed
an 	evaluation. 	No 	employee 	has 	ever 	been 	terminated pursuant
to 	these evaluations.
The 	Food 	Service 	Cook 	Managers 	also 	evaluate 	probationary
employees. 	They 	have 	always 	recommended 	permanent 	status 	For
7An 	exception 	to 	this 	occurs 	in 	the 	Food 	Service 	Cook
Manager's 	II 	kitchen, 	where 	the 	seniority 	rule 	is 	apparently
not 	followed. 	The Manager 	II 	assigns 	the most 	qualified 	food
service 	assistant 	to 	fill 	the 	absentee's 	position 	and 	assigns
the 	other 	assistants 	to 	the 	remaining 	slots 	according 	to 	their
ability.
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probationary 	employees, 	and 	the 	Director 	of 	Food 	Service 	has
never 	overturned 	these 	recommendations.
The 	Food 	Service 	Cook Managers 	possess 	several
responsibilities 	which 	warrant 	a 	finding 	of 	supervisory
status.8 They 	use 	independent 	judgement 	when 	called 	upon 	to
choose 	a 	candidate 	from 	those 	eligible 	to 	fill 	vacant 	food
service 	assistant 	I 	slots. 	Their 	recommendations 	are 	always
followed, 	and, 	thus, 	achieve a dimension of 	"effectively
recommending" 	hiring 	under 	Board precedent. 	Sacramento City
Unified School District 	(10/19/77) 	EERB Decision No. 	30A, 	at p.
7-8; 	and Campbell Union High School District 	(8/17/78) 	PERB
Decision No. 	66, 	at p. 	9-10.
The 	Food 	Service 	Cook Managers 	also 	exercise 	supervisory
authority 	by 	assigning 	work 	to 	employees 	in 	their 	kitchens.
They 	determine 	which 	duties 	will 	be 	performed 	by 	the 	employees
within 	each 	classification, 	direct 	the 	employees 	to other 	tasks
when 	their 	regular 	assignments 	are 	completed, 	and 	change
assignments 	when 	necessary 	to 	cover 	absences. 	This 	assignment
and 	direction of 	work 	engaged 	in by 	the Managers 	occurs 	on 	an
ongoing basis 	and 	involves 	the use 	of 	independent judgement,
not merely 	the 	adherence 	to 	established 	District 	policy.
Cantua Elementary 	School 	District 	(3/18/83) 	PERB Decision Wo.
8Neither 	party 	argued 	that 	there 	is 	any distinction 	in
the 	duties 	performed 	by 	the Food 	Service Cook Managers 	I, 	IT
and 	III, 	nor 	that 	any of 	the 	Food 	Service Cook Managers 	I, 	II
and 	III 	is more 	or 	less 	a supervisor 	than 	any other.
Co	
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295; 	and California State 	University 	(10/20/83) 	PERB 	Decision
No. 	351-H. 	The Managers 	train 	new 	employees 	and 	rotate
assignments when possible 	to make 	sure 	that 	all 	employees 	can
perform 	all 	tasks. 	They determine 	if 	substitute 	employees 	are
needed 	and 	if 	extra hours 	are 	required. 	Sacramento City USD,
supra. 	In 	addition, 	they 	are 	the 	only 	authority on-site 	and. . . .. .
neither 	substantial 	review 	nor 	prior 	approval 	is 	required 	for
them 	to 	carry out 	day-to-day operations 	of 	their 	kitchens.
California State University, 	supra.
Furthermore, 	the Food 	Service Cook Manager's 	role 	in
evaluating 	employees 	is 	also 	indicative 	of 	their 	supervisory
status. 	The 	agreement 	between 	the 	parties 	requires 	that 	all
regular 	classified 	employees 	be 	evaluated 	by 	their 	immediate
supervisor 	twice 	during 	their 	probationary 	period 	and 	once 	a
year 	after 	achieving 	permanent 	status. 	Recommendations 	that
probationary 	employees 	be 	granted 	permanent 	status 	pursuant 	to
these 	evaluations 	are given great weight, 	as 	evidenced by 	the
fact 	that 	the Director 	of 	Food 	Service 	has 	never 	changed 	an
evaluation. 	Therefore, 	the 	evaluation 	function 	is 	found 	to 	be
indicative 	of 	supervisory 	status. 	Berkeley Unified School
District 	(8/28/79) 	PERB Decision No. 	101.
No 	evidence 	was 	introduced 	to 	support 	the 	District's
contention 	that 	the 	Food 	Service 	Cook 	Managers 	possess 	the
authority 	to 	transfer, 	layoff 	or 	discharge 	employees 	working
under 	them. 	Nor 	does 	their 	participation 	on 	a 	promotional
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interview 	panel 	achieve 	a dimension 	of 	"hiring" 	or 	"effectively
recommending" 	hiring 	under 	Board 	precedent. 	Foothill-DeAnza
Community College District 	(3/1/77) 	EERB Decision No. 	10; 	Unit
Determination 	for 	the 	State of California 	(12/31/80) 	PERB
Decision No. 	110c.
CONCLUSION
In 	sum, 	the 	supervisory 	status 	of 	the 	Food 	Service Cook
Managers 	is 	affirmed 	based 	on 	their 	authority 	to 	hire
employees, 	assign 	and 	direct work, 	and 	effectively 	recommend
permanent 	status 	through 	completion 	of 	formal 	evaluations.
Therefore, 	the 	unit modification petition 	filed 	by 	the District
is granted, 	and 	the Food Service Cook Managers 	I, 	II 	and 	III
are 	deleted 	from 	the 	operations/support 	services 	unit.
An 	appeal 	of 	this 	decision pursuant 	to PERB 	Regulations
32350 	through 	32380 may 	be made 	within 	10 	calendar 	days
following 	the 	date 	of 	service 	of 	this 	decision 	by 	filing 	an
original 	and 	5 	copies 	of 	a 	statement 	of 	the 	facts 	upon which
the 	appeal 	is 	based 	with 	the 	Board 	itself 	at 	1031 	18th 	Street,
Suite 	200, 	Sacramento, 	California 95814. 	Copies of 	any appeal
must 	be 	concurrently 	served 	upon 	all 	parties 	and 	the 	San
Francisco 	Regional Office. 	Proof 	of 	service pursuant 	to
Regulation 	32140 	is 	required.
Dated: 	April 	5, 	1984
Jer	Jer 	Jerilyn Gelt, Board Agent
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