Atascadero Unified School District (PERB 0191E)

STATE
	OF
	CALIFORNIA
DEC
IS
ION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
ATASCADERO
	UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
CALIFORNIA
	SCHOOL
	EMPLOYEES
ASSOCIATION
	AND
	ITS
	ATASCADERO
CHAPTER
	#124,
Employee
	Organization.
)
)
)	
Case
	LA-UM-146
LA-R-369
PERB
	Decision
	No. 	191
December
	30, 	1981
)
)
)
)
)
)
)
)
_____________________ )
Appearances: 	E.
	Luis 	Saenz, 	Attorney 	for 	the
	California
	School
Employees
	Association
	and
	its
	Atascadero 	Chapter
	#124.
Before
	Jaeger,
	Moore 	and
	Tovar,
	Members.
DECISION
The
	California
	School
	Employees
	Association
	(hereafter
CSEA)
	excepts 	to
	the 	attached 	hearing
	officer's
	proposed
decision.
	The
	hearing
	officer
	granted 	the 	Atascadero
	Unified
School
	District's
	(hereafter 	District) 	petition
	for 	unit
modification
	and
	excluded 	the
	positions
	of
	head
	custodians
	I
and
	II,
	and
	cook/kitchen
	managers 	from
	the
	existing
	classifi
unit,
	finding 	that
	changes 	in 	circumstances 	rendered 	the
classifications
	supervisory
	and
	thus 	inappropriate 	to 	the
established 	unit.
CSEA
	excepts 	to 	the 	following 	hearing
	officer's 	findings:

The
	District
	has
	met
	its
	burden
	of
	proving 	the
	required
change
	in 	circumstances
	(of 	the
	positions
	in 	question.)
The
	collective
	bargaining
	agreement 	between
	the
	parties
does 	not 	bar
	the
	employer
	from
	filing
	such
	a
	petition.
The
	District
	has 	not
	waived
	its
	right
	to
	rely
	upon
	the
claimed
	changes 	because
	it
	could
	have
	raised
	the
	issue
	earlier
but
	didn't.
After 	considering
	the
	entire
	record
	and
	the
	parties'
briefs,
	the
	Public
	Employment
	Relations
	Board
	(hereafter
	PERB
or
	Board)
	finds
	no
	prejudicial 	error
	and
	adopts 	the 	hearing
officer's
	findings 	of
	fact.
	The
	Board
	affirms
	her
	conclusions
of
	law
	in
	accordance 	with 	the 	following
	discussion.
DISCUSSION
The
	District 	filed
	its
	petition
	for
	unit 	modifications
pursuant 	to
	PERB
	regulation
	3326l(b) (1)1	
to
	exclude
	head
custodians
	I 	and
	II
	and
	cook/kitchen
	managers
	from
	the
	unit
	as
supervisory. 	Section
	3326l(b)
	provides:
(b) 	A
recognized 	or
	certified
	employee
organization,
	an 	employer, 	or 	both
	jointly
may
	file
	with 	the 	regional
	office
	a
	petition
for
	change
	in 	unit 	determination 	pursuant 	to
Government 	Code
	section 	3541.3(e):
lpERB
	rules 	are 	codified 	at 	California Administrative
Code,
	title
	8, 	section
	31000
	et
	seg.
2

(1) 	To 	delete 	classifications 	no 	longer
in 	existence 	or 	which 	by 	virtue 	of 	changes
in 	circumstances 	are 	no 	longer 	appropriate
to 	the 	established 	unit.
. 	. 	. 	. 	. 	. 	. . 	.. 	. 	. 	. 	. 	. 	. 	. 	. . 	. . 	. 	. 	"
The 	parties 	entered 	into 	a 	stipulation 	that 	the 	employee
classifications 	in 	question 	are 	supervisory. 	The 	hearing
officer 	found 	that 	there 	were 	sufficient 	facts 	on 	the 	record 	to
support 	the 	parties' 	stipulation, 	as 	required 	by Centinela
Valley 	Union High 	School District 	(8/7/78) 	PERB 	Decision
No. 	62. 	We 	agree 	with 	her 	finding. 	We 	also 	agree 	with 	her
assessment 	that 	the 	District 	has 	proven 	a 	change 	in
circumstances 	since 	the 	unit 	was 	recognized 	in 	1976. 	The
record 	indicates 	that, 	after 	the 	unit 	was 	recognized 	on
May 	21, 	1976, 	both 	the 	head 	custodians 	and 	the 	cook/kitchen
managers 	were 	given 	significantly more 	supervisory
responsibilities. 	Both 	head 	custodians 	and 	cook/kitchen
managers 	began 	to 	evaluate 	subordinate 	employees. 	Head
custodians 	took 	over 	this 	function 	from 	the 	school 	principals.
Cook/kitchen managers 	took 	over 	the 	function 	from 	a 	food
service 	manager. 	These 	evaluations 	were 	the 	only 	ones 	that 	the
subordinate 	custodians 	and 	food 	service 	workers 	received. 	Both
head 	custodians 	and 	cook/kitchen 	managers 	effectively 	hire
employees. 	Their 	decisions 	are 	not 	overturned 	by 	management.
Head 	custodians 	effectively 	recommend 	dismissal 	of 	employees.
There 	was 	no 	evidence 	of 	any 	food 	service 	worker 	being
terminated 	since 	1976; 	however, 	the 	District 	testified 	that
3

cook/kitchen managers 	would 	also 	have 	the 	authority 	to
recommend 	dismissal 	of 	food 	service 	workers. 	There 	was 	no
evidence 	introduced 	to 	contradict 	this 	statement.
Analysis
Since 	the 	Board 	has 	not 	previously 	considered 	a 	case 	in
which 	a 	party 	has 	filed 	a 	petition 	pursuant 	to 	PERB 	Regulation
33261.(b) 	(1), 	the 	hearing 	officer 	turned 	to 	the 	Educational
Employment 	Relations 	Act 	(hereafter 	EERA)2 	and 	to 	a 	reading
of 	PERB 	regulations 	for 	guidance.
CSEA 	argues 	that 	the 	District 	should 	be 	estopped 	from
proceeding 	with 	the 	petition 	for 	unit 	modification 	because 	it
had 	two 	opportunities 	to 	bring 	up 	the 	issue: 	during 	the
negotiations 	for 	the 	collective 	agreement 	in 	1977 	and 	again 	in
1980.3 	The 	hearing 	officer 	correctly 	found 	that 	neither
section 	33260 	nor 	33261 	preclude 	the 	employer 	from 	filing 	a
petition 	because 	the 	changes 	took 	place 	years 	ago 	or 	because 	a
collective 	agreement 	between 	the 	parties 	includes 	the 	positions
in 	question 	in 	an 	established 	unit. 	Unlike 	other 	sections 	of
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	code 	references 	are 	to 	the 	Government 	Code 	ess
otherwise 	specified.
3Arguably 	not 	in 	1980 	because 	the 	parties 	had 	agreed 	to
over 	all 	the 	provisions 	of 	the 	previous 	collective
agreement 	except 	for 	wages.
4

the 	unit 	modification 	regulations,4 	where 	the 	time 	period 	for
the 	filing 	of 	a 	petition 	is 	clearly 	restricted, 	PERB 	regulation
3326l(b) 	(1) 	has 	no 	time 	limitations.
The 	hearing 	officer 	was 	correct 	in 	asserting 	that 	the
District 	had 	met 	its 	burden 	of 	proving 	that 	the 	positions 	were
no 	longer 	appropriate 	to 	the 	established 	unit 	by 	virtue 	of
changes 	in 	circumstances.
In 	addition 	to 	the 	fact 	that 	there 	are 	changed
circumstances, 	we 	would 	exclude 	the 	employee 	classifications 	in
question 	because 	it 	is 	clearly 	inappropriate 	to 	include
supervisory 	classifications 	within 	the 	established 	unit.
Subsection 	3545(b) 	of EERA 	provides:
(b) 	In 	all 	cases:
. 	. 	. 	. 	. . . 	. 	. 	. 	.
(2) 	A negotiating 	unit 	of 	supervisory
employees 	shall 	not 	be 	appropriate
unless 	it 	includes 	all 	supervisory
employees 	employed 	by 	the 	district 	and
shall 	not 	be 	represented 	by 	the 	same
employee 	organization 	as 	employees 	whom
the 	supervisory 	employees 	supervise.
Thus, 	the 	statute 	prohibits 	units 	such 	as 	the 	one 	at 	issue
in 	this 	case, 	and 	therefore 	we 	find 	the 	District 1 s 	petition 	is
appropriate.
4see 	regulation 	3326l(a) 	(5) 	to 	consolidate 	two 	or 	more
established 	units 	and 	3326l(c) 	to 	transfer 	classifications 	from
one 	unit 	to 	another.
5

ORDER
Based
	on
	the
	foregoing,
	the
	unit
	modification
	petition
filed
	by
	the
	Atascadero 	Unified
	School
	District 	is	
GRANTED.
Head
	custodians
	I 	and
	II
	and
	cook/kitchen
managers
	shall
	be
	excluded
	from
	the
	unit.
An
	amended
	unit
	certification
	will
	be
	issued 	in 	accordance
therewith.
I
	----
-
---·
--
By·:==
	Irene
	Tovar,
	Member	
Barbar
a 	D.
	Moore,
	Member
Joh'rl'
W.
	Jaeger,
	Membet
6

PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE OF 	CALIFORNIA
Atascadero 	Unified 	School 	District,
Employer,
-and-
California 	School 	Employees
Association 	and 	its
Atascadero 	Chapter 	#124,
Employee 	Organization.
)
)
)
)
)
)
)
)
)
)
)
___________________ )
Case 	No. 	LA-UM-146
LA-R-369
PROPOSED 	DECISION
(7 /22/81)
Appearances: 	Mr. 	Carl 	Lange 	III, 	Director 	of 	Labor 	Relations
(Schools 	Legal 	Service) 	for 	Atascadero 	Unified 	School 	District;
Mr. 	E. 	Luis 	Saenz, 	Attorney 	for 	the 	California 	School 	Employees
Association 	and 	its 	Atascadero 	Chapter 	#124.
Before 	Patricia 	Hernandez, 	Hearing 	Officer 0
PROCEDURAL 	HISTORY
On 	September 	10, 	1980, 	the 	Atascadero Unified 	School
District 	(hereafter 	District) 	filed 	a 	unit 	modification
petition 	pursuant 	to 	PERB 	Regulation 	33261(b) (1) 	•1 The.
petition 	requested 	the 	deletion 	of 	head 	custodians 	I 	and 	II 	and
133261. 	Petition.
(b) 	A recognized 	or 	certified 	employee 	organization, 	an
employer, 	or 	both 	jointly may 	file 	with 	the 	regional
office 	a 	petition 	for 	change 	in 	unit 	determination
pursuant 	to 	Government 	Code 	section 	3541.3(e):
(1) 	To 	delete 	classifications 	no 	longer 	in
existence 	or 	which 	by 	virtue 	changes 	in
circumstances 	are 	no 	longer 	appropriate 	to
the 	established 	unit; 	••• 	(Emphasis 	added.)

cook/kitchen
	managers
2	
from
	the
	existing
	classified
	unit
	on
the
	basis
	that
	changes
	in 	circumstances
	made
	the
classifications
	no
	longer
	appropriate 	to
	the
	established 	unit.
The
	petition
	stated
	the
	employees
	in
	question,
	''direct
subordinate
	employees,
	evaluate 	subordinate
	employees
	and
effectively
	recommend
	the
	granting 	of
	permanent
	status,
discipline
	and
	discharge 	of 	subordinate
	employees."
On
	September
	30,
	1980
	the
	California
	School
	Employees
Association
	and
	its
	Atascadero 	Chapter
	#124
	(hereafter
	CSEA)
filed
	a
	responding
	statement 	in
	which
	it
	opposed
	the
	petition.
On
	October 	23,
	1980 	an
	informal 	conference
	was
	held
	at
which
	no
	resolution
	was
	reached.
	The
	case
	was
	set
	for
	formal
hearing 	to
	be
	convened
	on 	December
	4,
	1980.
	On
	that 	date,
however,
	no
	hearing
	was
	held
	because
	the
	parties
	entered
	into
a
	joint 	stipulation 	that
	the 	disputed
	classifications
	were
supervisory
3	
employees
	as 	defined 	in 	the 	Educational
2The
	petition 	incorrectly
	showed
	the
	positions
	as
	head
custodians
	and
	kitchen
	managers.
	Both
	parties
	agree 	the
correct
	titles
	are
	head
	custodians
	I 	and
	II
	and
	cook/kitchenmanagers.
3"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 	ofsuch
	authority 	is
	not 	of
	a
	merely 	routine 	or
	clerical 	nature,but 	requires 	the 	use 	of 	independent 	judgment.
2

Employment 	Relations 	Act4 	(hereafter 	EERA or 	Act).
A hearing 	was 	rescheduled 	and 	held 	on March 	4, 	1981. 	At
the 	hearing 	and 	in 	its 	brief, 	CSEA maintained 	the 	positions
should 	remain 	in 	the 	unit 	because 	there 	have 	been 	no 	changes
which 	justify 	excluding 	them, 	i.e., 	any 	alleged 	changes 	are
only 	minor 	ones. 	This 	is 	argued 	despite 	the 	joint
stipulation. 	In 	the 	alternative, 	they 	contend 	that 	if 	changes
are 	found 	to 	have 	occurred, 	the 	District 	should 	be 	prohibited
from 	filing 	at 	this 	time 	because 	the 	alleged 	changes 	took 	place
several 	years 	ago.
Lastly, 	CSEA 	argues 	the 	District 	is 	precluded 	from 	filing 	a
petition 	because 	of 	the 	existence 	of 	a 	collective 	bargaining
agreement 	which 	includes 	the 	positions.
The 	District 	representative 	indicated 	he 	was 	employed 	by
the 	District 	in July 	or 	August 	1980. 	Thereafter 	he 	became
aware 	of 	the 	situation 	and 	advised 	the 	District 	to 	file 	the
instant 	unit 	modification 	petition.
Simultaneous 	post-hearing 	briefs 	were 	filed 	by 	the 	parties
on 	or 	before 	April 	30, 	1981.
4Government 	Code 	section 	3540 	et 	seq. 	All 	future
references 	are 	to 	the 	Government 	Code 	unless 	otherwise
indicated.
3

ISSUES
(1) 	Whether 	the 	Atascadero 	Unified 	School 	District 	satisfied
PERB 	Regulation 	3326l(b) (1) 	by 	demonstrating 	a 	change 	in
circumstances 	which 	would 	make 	head 	custodians 	I 	and 	II 	and 	cook/
kitchen 	managers 	no 	longer 	appropriate 	to 	the 	established 	unit,
and 	if 	so,
(2) 	Whether 	the 	District 	should 	be 	prohibited 	from 	filing 	at
this 	time 	because 	the 	changes 	took 	place 	several 	years 	ago.
(3) 	Whether 	the 	District 	is 	precluded 	from 	filing 	a 	petition
because 	of 	the 	existence 	of 	a 	collective 	bargaining 	agreement
which 	includes 	the 	positions.
FINDINGS 	OF 	FACT
The 	Atascadero 	Unified 	School 	District 	has 	a 	total 	K-12
enrollment 	of.3,831 	students. 	There 	are 	lb 	educational 	facilities
including 	6 	elementarv- 	l 	junior 	high, 	1 	senior 	high, 	1 	adult 	and
1 	continuation 	school•5 There 	are 	approximately 	100 	classified
employees.
At 	the 	hearing 	the 	parties 	stipulated 	that 	CSEA 	is 	an 	employee
organization 	within 	the 	meani 	of 	section 	3540.l(d) 	and 	the
District 	is 	an 	employer 	within 	the 	meaning 	of 	section 	3540.l(k).
They 	also 	stipulated 	that 	CSEA was 	voluntarily 	recognized 	as 	the
exclusive 	representative 	of 	the 	classified 	employees 	of 	the
5california 	Public 	School 	Directory, 	1980, 	p. 	458.
4

District 	on 	May 	21, 	1976, 	and 	that 	the 	classifications 	in
question 	were 	included 	in 	the 	unit 	at 	the 	time 	of
recognition•6 They 	re-affirmed 	their 	stipulation 	that
cook/kitchen managers 	and 	head 	custodians 	I 	and 	II 	are
supervisorial 	employees 	within 	the 	meaning 	of 	the 	Act. 	This
stipulation 	is 	accepted 	because 	it 	is 	adequately 	supported 	by
the 	facts 	as 	noted 	hereafter. 	(Centinela Valley Union High
School 	District 	(8/7/78) 	PERB 	Decision 	No. 	62.)
The 	parties 	further 	stipulated 	to 	and 	entered 	into 	evidence,
the 	collective 	bargaining 	agreement 	between 	the 	parties 	for 	the
period 	July 	1, 	1977 	until 	June 	30, 	1979. 	This 	agreement
included 	the 	disputed 	classes. 	The 	parties 	stipulated 	that 	at
the 	expiration 	of 	said 	contract 	they 	agreed 	to 	extend 	the
6The 	District 	voluntarily 	recognized 	CSEA 	as 	the
exclusive 	representative 	for 	the 	following 	unit:
Shall 	INCLUDE 	but 	not 	be 	limited 	to 	the
following 	major 	groupings 	of 	jobs: 	Food
Services, 	Clerical 	and 	Secretarial,
Operations 	and Maintenance 	to 	include
custodial/maintenance/grounds, 	Instructional
Aides 	(paraprofessional), 	and 	Transportation.
The 	unit 	EXCLUDES 	noon 	duty 	supervisors 	(by
whatever 	name) 	when 	the 	job 	description 	does
not 	authorize 	or 	require 	the 	performance 	of
duties 	other 	than 	playground 	supervision 	of
students 	for 	the 	purpose 	of 	providing
certificated 	personnel 	with 	a 	duty-free
lunch 	period, 	AND 	those 	positions 	which 	can
lawfully 	be 	declared 	management,
confidential, 	and 	supervisory.
5

contract 	for 	the 	period 	July 	1, 	1979 	to 	and 	including 	June 	30,
1980, 	with 	negotiations 	to 	be 	conducted 	solely 	on 	the 	issue 	of
wages. 	The 	current 	collective 	bargaining 	agreement 	dated
September 	1, 	1980 	to 	June 	30, 	1983 	was 	also 	entered 	into
evidence. 	This 	agreement 	includes 	the 	positions 	in 	question.
Head 	Custodians 	I 	and 	II
The 	classifications 	of 	head 	custodian 	I 	and 	II 	are
distinguishable 	from 	each 	other 	in 	that 	a 	head 	custodian 	I 	is
assigned 	responsibility 	for 	supervising 	the 	smaller 	schools 	and
a 	smaller 	staff 	while 	the 	head 	custodian 	II 	supervises 	the
operation 	at 	a 	larger 	school 	or 	two 	medium-sized 	schools.7
The 	record 	reveals 	that 	in mid-1976, 	there 	were 	three 	head
custodians 	II 	located 	at 	the 	larger 	or mid-sized 	schools.
Mr. 	Brazzi 	was 	at 	Lewis 	Avenue 	supervising -approximately 	two
employeest 	Mr. 	James 	Williams 	was 	at 	the 	Jr. 	High 	School
supervising 	approximately 	two 	or 	three 	employees; 	and 	another
individual 	was 	at 	the 	High 	School. 	The 	name 	or 	the 	number 	of
employees 	this 	person 	supervised 	failed 	to 	be 	demonstrated 	on
the 	record.
7see 	"Head 	Custodian-Series 	Specification" 	for
distinguishing 	characteristics 	between 	head 	custodians 	I 	and
II. 	At 	the 	hearing 	the 	parties 	inadvertently 	confused 	the 	two.
6

Also
	in
	mid-1976
	the
	District
	employed
	Mr. 	Tony
	Diaz,
	head
custodian
	I,
	who 	was
	responsible
	for 	the
	three
	small 	schools
	of
the
	District
	(Santa
	Margarita,
	Creston
	and
	Carissa
	Plains).	
So
in
	mid-1976
	the
	District
	employed
	three
	head
	custodians
	II
	and
one 	head
	custodian
	I
	for
	a
	total
	of 	four
	head
	custodians.
Currently
	the
	District
	employs
	only
	three
	head
	custodians.
It
	appears 	the
	position 	at
	Lewis
	Avenue 	was
	abolished
	sometime
in
	1976.
	Mr.
	Brazzi
	is
	now
	at
	the 	high 	school
	and
	is
responsible 	for 	the
	oversight
	of 	custodians
	at
	that
	site
	as
	well
as
	at
	Monterey
	Road 	and 	Oak
	Hills
	continuation
	school.
	He
supervises 	five
	and
	one
	half
	employees.
	Mr. 	James
	Williams
	is
still
	at
	the
	junior
	highr
	however,
	now
	he
	is
	also 	responsible
for 	custodians
	at
	the
	District 	office
	for
	a
	total
	of
	five
subordinate
	employees.
	The
	three
	small 	schools 	are
	currently
overseen
	by Mr.
	David
	Carreiro
	who
	has 	under
	his 	supervision
	two
custodians.
	Thus,
	the
	District
	currently
	employs
	two
	head
custodians
	II
	and 	one 	head
	custodian
	I.
At
	the
	time
	CSEA
	was
	recognized 	in
	May
	1976
	head
	custodians
with 	the 	exception 	of 	one, 	did 	not 	evaluate 	subordinate
employees.
	The
	exception
	was 	Mr.
	Brazzi,
	head
	custodian
	II,
	who
was
	given 	evaluation 	duties 	in
	1967
	or
	1968 	and
	has 	continued
	to
the 	present.
	The
	District 	indicated,
	and
	it
	is
	found,
	that 	this
was 	an
	exception.
	Mr.
	Brazzi 	has 	been 	employed
	with 	the
District
	for 	over
	25
	years.
7

All
	other
	head
	custodians
	I
	and
	II
	began
	evaluating
employees
	in
	mid-1976
	or
	early
	1977.
	Prior
	to
	this,
	school
principals
	evaluated
	all
	custodial
	personnel.
It
	was
	the 	uncontroverted 	testimony 	of 	of
	Mr.
	Theron
McCarty,
	assistant
	superintendent 	for
	instruction
	and
	personnel,
that
	custodians
	have 	been
	dismissed 	for
	incompetency, 	based
	upon
the
	recommendations
	of
	head
	custodians
	I
	and
	II.
	He
	testified
that
	a
	custodian
	was
	dismissed
	within
	the
	last
	calendar
	year
based
	on
	the
	recommendation
	of
	a
	head
	custodian.
Head
	custodians
	I
	and
	II
	participated
	on
	hiring
	panels
	prior
to
	1976 	and
	have
	continued
	to
	the
	present.
	At
	present
	the
hiring
	panel
	consists
	of 	the 	school
	principal,
	head
	custodian
and
	the
	maintenance
	operation
	director.
	No
	evidence
	was
presented
	on 	what
	weight,
	if
	any,
	was
	given
	to
	the
recommendations
	of 	the
	head
	custodians
	prior 	to
	1976. 	Both
	the
District
	and
	CSEA
	agree
	that 	at
	present
	head
	custodians
	I 	and
	II
effectively
	recommend
	the
	hiring
	of
	employees.
Cook/Kitchen
	Managers
The
	District
	currently
	employs
	three 	cook/kitchen 	managers.
It
	appears
	that 	in 	the 	early 	1970's 	cook/kitchen
	managers
evaluated
	their
	subordinate 	employees. 	This
	practice
	was
discontinued 	after
	a
	director 	of
	food
	services
	was
	hired
	some
time 	in
	1975
	or 	early
	1976. 	At
	that
	time 	a
	central 	kitchen
8

prepared 	and 	prepacked 	all 	meals 	then 	transported 	them 	to 	the
various 	school 	sites. 	This 	operation 	was 	disbanded 	some 	time
between 	February 	and 	September 	of 	1977 	in 	favor 	of 	a 	hot 	lunch
program 	at 	each 	site.
In 	February 	1977 	concurrent 	with 	the 	reorganization 	the
District 	abolished 	the 	position 	of 	director 	of 	food 	services 	and
replaced 	it 	with 	the 	position 	of 	administrative 	assistant/
business. 	Mr. 	Paul 	Monn 	filled 	that 	position 	in 	February 	1977
and 	has 	continued 	to 	the 	present. 	In 	this 	capacity Mr. 	Monn's
responsibilities 	include 	overseeing 	transportation, 	purchasing
and 	food 	services. 	When 	he 	took 	over 	in 	1977 	he 	recommended
that 	cook/kitchen managers 	be 	given 	evaluation 	duties.
Mrs. 	Mary Anderson, 	cook/kitchen 	manager 	since 	February
1976, 	testified 	that 	she 	started 	evaluating 	subordinates 	in
February 	1977 	when 	Mr. 	Monn 	took 	over.
There 	has 	not 	been 	a 	dismissal 	of 	a 	food 	service 	worker 	in
the 	past 	several 	years. 	The 	same 	procedure 	is 	followed 	when 	a
cook/kitchen manager 	recommends 	dismissal 	as 	when 	a 	head
custodian 	does.
Cook/kitchen 	managers 	sit 	on 	hiring 	panels 	which 	consist 	of
the 	cook/kit 	r 	who 	wills 	rvise 	new 	employee 	and
Mr. 	Monn. 	The 	assistant 	superintendent 	for 	instruction 	and
personnel 	acts 	on 	the 	recommendation 	of 	the 	panel 	to 	issue
offers 	of 	employment. 	His 	function 	is 	ministerial 	in 	nature.
9

Cook/kitchen managers 	began 	to 	participate 	in 	hiring 	panels 	on
or 	about 	February 	1977. 	Cook/kitchen 	managers 	effectively
recommend 	the 	hiring 	of 	subordinate 	employees.
CONCLUSIONS
As 	previously 	indicated, 	CSEA 	contends 	the 	positions 	should
remain 	in 	the 	unit 	based 	on 	several 	arguments. 	They 	indicate
there 	have 	been 	no 	changes 	which 	justify 	excluding 	the
positions, 	i.e., 	any 	alleged 	changes 	are 	only 	minor 	ones. 	In
the 	alternative, 	they 	argue 	the 	District 	should 	be 	prohibited
from 	filing 	a 	petition 	at 	this 	time 	because 	the 	changes 	took
place 	several 	years 	ago. 	They 	maintain 	the 	employer 	has 	in
effect 	acquiesced 	to 	the 	continued 	inclusion 	of 	the 	disputed
classifications 	in 	the 	bargaining 	unit. 	It 	is 	also 	argued 	that
the 	current 	collective 	bargaining 	agreement 	precludes 	the
employer 	from 	filing 	a 	petition.
Lastly, 	CSEA 	feels 	that 	PERB 	should 	not 	disturb 	a 	bargaining
unit 	which 	has 	been 	in 	place 	since May 	1976 	and 	which 	has 	been
reaffirmed 	by 	the 	parties 	through 	collective 	bargaining
agreements.
Unfortunately 	t 	re 	is 	no Board 	precedent 	to 	look 	to 	for
guidance 	on 	unit 	modifications 	of 	this 	nature. 	I 	turn 	ther 	re
first 	to 	the 	Act 	itself 	and 	then 	to 	the 	regulations.
Section 	3541.3(e) 	of 	the 	EERA provi 	st 	Board 	shall 	have
the 	power 	and 	duty:
10

To 	establish 	by 	regulation 	appropriate
procedures 	for 	review 	of 	proposals 	to 	change
unit 	determinations.
In 	fulfilling 	its 	duty 	the 	Board 	promulgated 	PERB
regulations 	33260 	et 	seq. 	These 	regulations 	read, 	in 	pertinent
part, 	as 	follows:
33260. 	Policy. 	It 	is 	the 	policy 	of 	the 	Board 	to
provide 	a 	single mechanism which 	shall 	be 	utilized 	for
the 	modification 	of 	all 	established 	units. 	This
system 	is 	designed 	to 	ensure 	that 	all 	parties 	to 	a
modification 	are 	afforded 	notice 	and 	opportunity 	to
express 	their 	views 	with 	regard 	to 	any 	proposed
modification, 	and 	to 	provide 	assistance 	in 	the
resolution 	of 	questions 	raised 	by 	the 	parties 	to 	a
dispute 	regarding 	the 	modification 	of 	a 	unit.
(Emphasis 	added.)
* * * * * * * * * * * * * * * * * * * * * * *
No 	unit 	modification may 	be 	made 	by 	any
procedure 	other 	than 	that 	contained 	in 	this
Article. 	(Emphasis 	added.)
33261. 	Petition.
* * * * * * * * 	* * * * * * * 	* * 	* * * * * *
(b) 	A recognized 	or 	certified 	employee
organization, 	an 	employer, 	or 	both 	jointly
may 	file 	with 	the 	regional 	office 	a 	petition
for 	change 	in 	uriit 	determination 	pursuant 	to
Government 	Code 	section 	3541.3(e);
(1) 	To 	delete 	classifications 	no
longer 	in 	existence 	or 	which 	by 	virtue
of 	changes 	in 	circumstances 	are 	no
longer 	appropriate 	to 	the 	established
unit: 	.•• 	(Emphasis 	added.)
Sections 	33260 	and 	33261 	neither 	prohibit 	nor 	preclude 	the
employer 	from 	filing 	a 	petition 	because 	changes 	took 	ace
years 	ago 	or 	because 	a 	collective 	bargaining 	agreement 	includes
the 	positions. 	Unlike 	other 	sections 	of 	the 	unit 	modification
11

regulations
9	
where
	the
	filing
	of
	a
	petition 	is
	clearly
restricted
	to
	a 	"window"
	period,
	PERB
	regulation
	3326l(b)
(1)
has
	no
	such
	restrictions.
The
	National
	Labor
	Relations
	Board
	(hereafter
	NLRB
	or
Board)
	has
	different
	unit
	clarification
	regulations
	than
	does
the
	PERB. 	They
	are
	brief
	and
	essentially
	non-definitive.
	They
give
	no
	time 	frames
	in
	which
	to
	file.
	Yet
	the
	NLRB
	has
	on
occasion
	denied
	petitions
	as 	untimely
	when
	filed
	during 	the
term
	of
	a
	contract.
In
	Logan
	Memorial
	Hospital
	(1977) 	231
	NLRB
	119 	[96
	LRRM
1063],
	the
	NLRB
	found
	that
	the
	employer 	knowingly
	executed
	an
agreement
	and
	immediately
	thereafter 	petitioned
	the
	Board
	to
exclude
	classifications
	covered
	by
	the
	agreement.
	Both
	parties
were 	aware
	during
	negotiations
	of 	the
	uncertainty
	surrounding
the
	unit
	placement 	of 	the 	disputed 	supervisory
	status
	of
certain 	positions.
	The
	NLRB
	reasoned
	that 	to
	permit 	the
petition 	at
	the
	time
	filed
	would
	tend
	to
	undermine
	the
bargaining
	relationship 	of 	the
	parties.
	Since 	the
	employer
knew
	of 	the
	dispute,
	he
	should
	have
	filed
	before 	contract-end.
9see
	regulation
	33261 (a) (5)
	to
	consolidate
	two
	or
	more
established 	units
	and
	3326l(c)
	to 	transfer 	classifications
	from
one
	unit 	to 	another.
12

Yet 	the 	NLRB 	in 	numerous 	earlier 	cases 	clarified 	units
during 	the 	term 	of 	a 	contract. 	See 	Pacific Coast 	Shipbuilders
Association 	(1966), 	157 	NLRB 	384, 	386 	[61 	LRRM 	1362], 	where 	the
Board 	indicated 	there 	was 	no 	limitation 	upon 	the 	right 	of 	a
party 	to 	request 	clarification 	of 	a 	unit. 	See 	also
Westinghouse 	Air 	Brake Company, 	Union 	Switch 	and 	Signal
Division 	(1959) 	129 	NLRB 	859 	860 	[44 	LRRM 	1008], 	where 	the
NLRB 	proceeded 	to 	clarify 	a 	unit 	one 	month 	after 	the 	collective
bargaining 	agreement 	was 	executed.
Thus 	through 	case 	law 	the 	NLRB 	has 	defined 	its 	brief 	unit
clarification 	regulations: 	first, 	to 	process 	petitions 	filed
during 	the 	term 	of 	a 	contract, 	and 	more 	recently, 	to 	deny 	them
as 	untimely 	based 	on 	the 	facts 	of 	the 	case.
The 	PERB 	has 	rather 	extensive 	unit 	modification 	regulations
spelling 	out 	precise 	time-frames 	in many 	instances. 	For 	filing
the 	instant 	petition 	there 	are 	no 	specified 	time-frames. 	The
employer 	is 	obliged 	only 	to 	demonstrate 	changes 	in 	circumstances
which 	make 	the 	positions 	no 	longer 	appropriate 	to 	the 	unit. 	The
Board 	itself 	may 	in 	the 	future 	either 	by 	case 	law 	or 	by 	revised
regulations 	choose 	to 	place 	restrictions 	on 	such 	filings. 	At
this 	time, 	however, 	there 	are 	no 	restrictions.
In 	this 	case, 	there 	is 	no 	evidence 	that 	CSEA was 	misled 	or
harmed 	during 	recent 	negotiations. 	Moreover, 	there 	is 	no
evidence 	that 	processing 	the 	petition 	at 	this 	time 	would 	be
disruptive 	of 	the 	collective 	bargaining 	relationship 	between 	the
13

parties.
	It
	is
	found
	therefore 	that
	the
	collective
	bargaining
agreement
	does
	not
	preclude
	the
	employer
	from
	filing
	the
instant
	petition.
The
	Atascadero
	Unified
	School
	District,
	as
	stated
	earlier,
has
	the
	obligation
	of 	demonstrating
	that
	the
	positions
	are
	no
longer
	appropriate 	to 	the
	established 	unit
	by
	virtue
	of
changes
	in 	circumstances.
	For
	the 	reasons
	noted
	below
	it
	is
concluded
	that
	the
	District
	has
	demonstrated 	changes
	which
	make
the
	positions
	no
	longer
	appropriate 	to
	the
	unit.
	Head
custodians
	I
	and
	II
	and
	cook/kitchen
	managers 	have
	experienced
substantial
	changes
	in 	job
	duties.
	Most
	significantly,
	the
assignment 	of
	evaluation 	duties
	and,
	secondarily, 	the
responsibility
	of
	sitting
	on
	hiring 	panels.
Although
	one 	head
	custodian
	was
	evaluating
	employees
	in
1976,
	it
	is
	unclear
	what
	weight,
	if
	any,
	his
	recommendations
were
	given
	at
	the 	time.
	Head
	custodians
	I
	and
	II
	as
	a
	class
were
	not 	given
	evaluation 	duties
	until 	after
	CSEA
	was
recognized.
	The
	weight 	given 	these 	evaluations
	is
	apparent
	and
undisputed 	as
	reflected
	in 	the
	joint 	stipulation
	by
	the
	parties
as 	well 	as 	in 	the
	facts
	of
	this
	case.
	Head
	custodians
	I 	and
	II
are
	clearly
	s
	rvisory
	employees.
	The
	evaluation 	duties 	given
them
	constitute
	a
	change
	in 	circumstances. 	Other 	changes 	have
occurred 	with 	respect 	to 	the
	number
	of
	sites
	and 	employees
	the
head
	custodians 	supervise.
	These 	changes 	are 	noteworthy,
however, 	the
	critical
	change
	is
	the 	assignment 	of 	evaluation
duties. 
14

Like 	the 	head 	custodians, 	cook/kitchen managers 	began
evaluating 	subordinates 	after 	CSEA was 	voluntarily 	recognized.
They 	were 	given 	the 	duty 	in 	connection 	with 	the 	reorganization
of 	food 	services 	in February 	1977. 	They 	also 	began 	to 	sit 	on
hiring 	panels 	at 	about 	the 	same 	time. 	These 	two 	additional
duties 	constitute 	a 	change 	in 	circumstances 	which 	make 	the
positions 	no 	longer 	appropriate 	to 	the 	established 	unit.
These 	changes 	are 	not 	minor 	ones 	as 	CSEA 	argues. 	They 	are,
in 	fact, 	the 	basis 	for 	the 	supervisorial 	status 	of 	the
employees.
It 	is 	incumbent 	upon 	the 	Public 	Employment 	Relations 	Board
to 	process 	and 	grant 	unit 	modification 	petitions 	which 	are
found 	to 	be 	properly 	filed 	and 	in 	compliance 	with 	all
provisions 	of 	the 	EERA 	and 	regulations.
It 	is 	concluded 	that 	the 	instant 	petition 	was 	so 	filed. 	It
is 	the 	proposed 	decision, 	therefore, 	that 	the 	petition 	be
granted. 	The 	District 	met 	its 	obligation 	to 	show 	changes 	in
circumstances 	and 	in 	so 	doing 	brought 	to 	light 	the
supervisorial 	nature 	of 	the 	positions. 	Positions 	which 	can
lawfully 	be 	found 	to 	be 	management, 	confidential 	or 	supervisory
do 	not 	belong 	in 	a 	unit 	of 	regular 	employees.
15

PROPOSED 	ORDER
It 	is 	the 	Proposed 	Order 	that 	the 	unit 	modification
petition 	filed 	by 	the 	Atascadero 	Unified 	School 	District 	be 	grantedo
. Head 	custodians 	I 	and 	II 	and 	cook/kitchen
managers 	shall 	be 	excluded 	from 	the 	unit.
An 	amended 	unit 	certification will 	be 	issued 	in 	accordance
therewith.
Pursuant 	to California Aaministrative 	Code, 	title 	8, 	part
III, 	section 	32305, 	this 	Proposea 	Decision 	ana 	oraer 	shall
become 	final 	on 	August 	17, 	1981 	unless 	a 	party 	files 	a 	timely
statement 	of 	exceptions 	within 	twenty 	(20) 	calenaar 	days
following 	the 	aate 	of 	service 	of 	the 	decision. 	Such 	statement
..
of 	exceptions 	and 	supporting 	brief 	must 	be 	actually 	received 	by
the 	executive 	assistant 	to 	the 	Boara 	at 	the 	headquarters 	office
in 	Sacramento 	before 	the 	close 	of 	business 	(5:00 	p.m.)
on 	August 	17, 	1981 	in 	oraer 	to 	be 	timely 	filed. 	(See
California Administrative 	Code, 	title 	8, 	part 	III, 	section
32135.) 	Any 	statement 	of 	exceptions 	and 	supporting 	brief 	must
be 	servea 	concurrently 	with 	its 	filing 	upon 	each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	be 	filed 	with 	the 	Board
itself. 	(See 	Aaministrative 	coae, 	title 	8, 	part 	III, 	sections
32300 	ana 	32305, 	as 	amenaea.)
DATED: 	July 	22, 	1981
16
FOR THE 	REGIONAL 	DIRECTOR
By
Patricia -Hernandez
Hearing 	Officer