California State University (Statewide University Police Association) (PERB 0351H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
THE 	CALIFORNIA 	STATE 	UNIVERSITY,
Employer,
and
STATEWIDE 	UNIVERSITY POLICE
ASSOCIATION,
Employee 	Organization.
Case No. 	LA-UM-252-H
(LA-HR-8)
PERB Decision No. 	351-H
October 20, 	1983
Appearances; 	Robert A. 	Jones 	(Employee Relations Consulting)
for 	Statewide 	University Police Association;
William B. 	Haughton, 	Attorney 	for The California State
University.
Before Tovar, Morgenstern and Burt, Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before the Public
Employment Relations Board 	(PERB 	or Board) 	on exceptions 	to a
hearing 	officer's 	proposed 	decision.
On July 9, 	1981, 	the Statewide University Police
Association 	(SUPA) 	filed 	a 	unit modification petition
requesting 	that 	Supervising 	Public 	Safety Officers 	I
(sergeants) 	be 	added 	to 	the 	established 	bargaining 	unit
represented 	by SUPA. 	It 	is 	the 	position of The California
State University 	(CSU or 	University) 	that 	these 	employees
should 	not 	be 	included 	in 	the 	unit 	because of 	their 	supervisory
status.
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FACTUAL 	SUMMARY
The 	California 	State 	University 	employs 	approximately 	300
sworn personnel 	in 	its Department of Public Safety. 	There are
19 chiefs, 	approximately 18 	lieutenants, 	59 sergeants and 197
officers. 	There 	are 	statewide minimum classification and
qualification 	standards 	for 	sergeants. 	Individual 	campuses 	can
exceed 	the minimum 	standards 	established 	by CSU, 	but 	they
cannot 	fall below 	them. 	Sergeants 	are 	required 	to 	successfully
complete 	80 	hours 	of 	supervisory 	training 	as 	prescribed 	by 	the
California 	Commission 	on Peace Officer 	Standards 	and 	Training
within 	the 	first 	year 	of 	employment.
Although 	the 	parties 	stipulated 	to 	certain 	representative
campuses 	as 	examples 	of 	small, 	medium and 	large 	campuses,1
the 	duties 	of 	sergeants 	vary 	only 	slightly 	based 	on 	the 	size
and 	manner 	of 	administration of 	the 	particular 	campus
department.
Sergeants 	are 	the 	watch 	commanders 	for 	the 	different
shifts. 	They 	are 	generally 	responsible 	for 	deploying personnel
as 	needed 	for 	special events 	or overtime work. 	Particular 	work
assignments 	are 	frequently 	scheduled 	on a 	volunteer 	basis. 	If
no volunteers 	are 	available, 	sergeants 	have 	authority to assign
the 	tasks 	as 	they see 	fit. 	On some campuses, 	patrol areas or
beats 	are 	assigned 	to officers 	by sergeants. 	On other
1The 	San Bernardino 	and 	Bakersfield 	campuses 	were
selected 	to 	represent 	the 	small 	campuses, 	Pomona and Fresno,
the medium-sized campuses, 	and San Diego, 	Long Beach,
Los Angeles 	and San Francisco, 	the large campuses.
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campuses, 	because of 	size, 	there 	are no regular beats to
patrol. 	Sergeants 	are 	responsible 	for 	reviewing 	and 	correcting
all 	incident 	reports 	submitted 	by officers while 	in 	the 	field.
Testimony 	revealed 	that 	the 	majority 	of 	corrections 	on 	incident
reports 	involve 	grammatical or 	spelling 	errors. 	There was no
evidence 	that 	incident 	reports 	have 	ever 	been 	used 	as 	a 	basis
for 	disciplinary 	action.
Some 	sergeants 	perform duties 	substantially 	similar 	to 	those
of officers 	a 	large 	portion of 	their 	working 	time. 	This 	is 	true
especially on 	graveyard 	shifts 	when 	there 	are 	fewer 	employees 	on
duty. 	The 	amount 	of 	time 	spent on patrol 	duties 	decreases
during 	the 	day and 	swing 	shifts; 	however, 	sergeants perform
patrol duties 	in the field, make 	arrests, 	check buildings 	and
issue 	citations 	just as 	officers 	do. 	Additional duties 	are
often 	assigned 	to 	sergeants, 	which 	lessens 	their 	time 	spent on
patrol duties. 	For example, 	on the Los Angeles campus, 	a
sergeant 	working 	the 	swing 	shift 	has 	been 	assigned 	budgetary
tasks 	involving 	formulating 	budget 	items 	and 	management
objectives 	for 	the 	vice 	president of 	the 	campus.
At 	each 	of 	the 	campuses, 	minimum staffing 	requirements 	have
been 	established 	for 	the work 	shifts. 	In general, 	a sergeant
can decide, 	without prior 	approval, 	to call 	in an off-duty
officer 	if 	someone 	fails 	to 	report 	to work or 	to 	require
overtime 	in order 	to maintain 	the minimum 	staffing
requirements. 	Sergeants 	have 	authority 	to approve overtime 	and
require 	documentation of 	sick 	leave.
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Although 	sergeants 	are 	often 	the 	highest 	ranking 	public
safety officer 	on duty, 	during 	certain 	shifts 	a 	rank-and-file
officer 	will 	be 	designated 	lead 	officer.
Sergeants 	regularly 	attend 	management 	meetings 	where 	general
policy matters, 	the 	budget, 	grievances 	and 	other personnel
subjects 	are 	discussed.
Additional 	findings of 	fact 	relevant 	to each 	of 	the
statutorily 	enumerated 	criteria 	of 	supervisory 	status 	are
discussed, 	infra.
DISCUSSION
Section 	3580.3 	of 	the Higher 	Education Employer-Employee
Relations Act 	(HEERA or Act),2 	in pertinent part, 	defines 	a
supervisory 	employee 	as 	follows:
"Supervisory 	employee" 	means 	any 	individual,
regardless 	of 	the 	job description or 	title,
having 	authority, 	in 	the 	interest of 	the
employer to hire, 	transfer, 	suspend, 	lay
off, recall, promote, discharge, assign,
reward, 	or discipline other employees, 	or
responsibility to direct 	them, 	or 	to adjust
their 	grievances, 	or 	effectively to
recommend 	such action, 	if, 	in connection
with 	the 	foregoing, 	the exercise of 	such
authority 	is 	not of 	a merely 	routine or
clerical 	nature, 	but 	requires 	the use of
independent judgment. 	. 	. 	. 	Employees whose
duties 	are 	substantially 	similar 	to 	those of
their 	subordinates 	shall 	not 	be 	considered
to be 	supervisory 	employees.
2HEERA 	is 	codified 	at Government 	Code 	section 	3560 	et
seq. 	All 	statutory 	references 	are 	to 	the Government Code
unless 	otherwise 	specified.
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In prior 	decisions, 	when 	called 	upon 	to 	interpret 	this 	and
other 	identical 	statutory 	language, 	the Board 	has 	rendered
various 	rules 	of 	construction 	designed 	to guide 	the 	parties 	in
their 	representation 	proceedings 	before 	the Board.
The Board 	has 	adopted 	the 	disjunctive 	interpretation 	of 	the
Act 	and 	will 	find 	an 	employee 	to 	be 	a 	supervisor 	where 	the
party 	seeking 	exclusion 	demonstrates 	that 	an 	employee 	meets 	one
of 	the 	specified 	criteria 	for 	exclusion 	and 	does 	no
rank-and-file work. 	Unit Determination 	for Employees 	of 	the
California State 	University 	and 	Colleges 	Pursuant 	to Chapter
744 	of 	the Statutes 	of 	1978 	(Higher Education Employer-Employee
Relations Act) 	(9/22/81) 	PERB Decision No. 	173-H. 	Most
circumstances, 	including 	the 	instant case, 	do not 	fit 	this
extreme 	configuration of 	duties.
It 	is 	incumbent 	on 	the 	party 	seeking 	to exclude 	employees
from 	statutory 	coverage 	to 	satisfy 	its 	burden of 	demonstrating
that 	the 	specific 	task 	is 	regularly performed 	and 	not 	a
sporadic or 	atypical exercise of duties. 	Additionally, 	it 	is
necessary 	to demonstrate 	that, 	in conjunction with 	those
duties, 	the 	individual exercises 	independent 	judgment 	rather
than 	routine 	or 	clerical 	decision-making. 	Unit Determination
for 	Employees 	of 	the 	California State 	University 	and 	Colleges
Pursuant 	to Chapter 	744 	of 	the Statutes 	of 	1978 	(Higher
Education Employer-Employee Relations Act) 	(11/17/81) 	PERB
Decision No. 	176-H.
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Supervisory 	authority 	will 	not 	be 	found 	where 	the 	actual
authority 	is 	limited 	to 	a choice 	between 	two or 	more 	tightly
directed 	and 	narrowly 	defined 	procedures. 	Independent 	judgment
is 	indicated where 	the 	performance 	of 	duties 	includes 	the
opportunity 	to make 	a 	clear 	choice 	between 	two or 	more
significant 	alternative 	courses 	of 	action 	and 	the 	power 	to make
that 	choice 	is 	without 	broad 	review 	and 	approval. 	Such
functions 	are 	characterized 	by 	significant 	autonomy 	and 	control
over 	the 	decision-making 	or 	recommending 	processes. 	Where
substantial 	review or 	prior 	approval 	is 	required, 	either 	by
specific 	action or 	existing 	policy, 	a 	finding 	of 	independent
judgment 	is 	precluded. 	Unit Determination 	for 	Professional
Scientists 	and Engineers, 	Lawrence Livermore National
Laboratory, 	of 	the University of 	California Pursuant 	to Chapter
744 	of 	the 	Statutes 	of 	1978 	(Higher Education Employer-Employee
Relations Act) 	(3/8/83) 	PERB Decision No. 	246b-H.
Since 	exclusions 	are 	designed 	to 	prevent 	a 	division of
supervisors' 	loyalties, 	the 	alleged 	supervisorial 	task must, 	by
statutory definition, 	be 	exercised 	in 	the 	interest of 	the
employer. 	In addition, 	the potential 	for 	this conflict of
interest 	lies 	in 	the 	authority 	to 	control or 	influence
personnel 	decisions. 	Evidence 	limited 	to a demonstration of
control 	over 	work 	processes 	does 	not 	support 	an exclusion.
Where 	the 	guidance 	of 	other 	employees 	is 	derived 	from greater
experience, 	technical 	expertise 	and 	knowledge 	of 	the 	employer's
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mission 	and 	tasks, 	such 	employees may appropriately 	be 	included
in the 	unit. 	Lawrence Livermore National Laboratory, 	supra.
Finally, 	the 	language of 	section 	3580.3 	specifically
directs 	that 	employees 	whose 	duties 	are 	substantially 	similar
to 	those of 	their 	subordinates 	shall 	not 	be 	considered
supervisory 	employees. 	As 	stated 	by 	the 	Board 	in Lawrence
Livermore National Laboratory, 	supra;
Section 	3580.3, 	like 	section 	3522.1 of
SEERA, 	clearly authorizes 	the Board 	to
include 	in 	representation 	units 	employees
who 	perform 	some 	supervisory 	functions.
These employees, despite titles, 	job
descriptions 	and 	even duties, 	may be
sufficiently 	invested 	with 	rank-and-file
interests 	to warrant 	their 	inclusion 	in
bargaining units. 	. 	. 	.
Rejecting 	a 	quantitative 	analysis, 	the Board 	has 	interpreted
the 	language 	"substantially 	similar" 	to 	require 	exclusion when
the 	employees' 	duties 	reach 	that point 	where 	the 	supervisory
obligation 	to 	the 	employer 	outweighs 	the 	entitlement 	to 	the
rights 	afforded 	rank-and-file 	employees. 	See Unit
Determination 	for 	the 	State 	of 	California 	Pursuant 	to Chapter
1159 	of 	the Statutes 	of 	1977 	(State Employer-Employee Relations
Act) 	(12/31/80) 	PERB Decision No. 	110c-S.
After 	review of 	all 	the 	evidence 	presented 	in 	the 	instant
case, 	we 	conclude 	that 	the 	sergeants 	do not perform any of 	the
enumerated 	supervisory 	functions 	to 	a 	degree 	sufficient 	to
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justify 	relinquishment 	of 	their 	entitlement 	to 	the 	rights
afforded 	by 	HEERA.
The 	evidence 	fails 	to demonstrate 	that 	the 	sergeants
exercise 	hiring 	authority.3 At 	certain 	campuses, 	sergeants
sometimes 	sit 	on 	the 	panels 	which 	interview 	applicants 	after
the 	personnel 	office 	has 	screened 	the 	applicants 	to determine
their 	entrance 	qualifications. 	However, 	officers 	have also
been panel participants. 	The 	task of 	the panel 	is 	to 	forward
its 	collectively 	ranked 	recommendations 	to 	the 	chief 	who 	is
empowered 	to make 	the 	final 	hiring 	selection. 	The 	evidence
reveals 	that 	the 	chiefs' 	final 	selections 	are 	not 	restricted 	to
the 	candidate 	ranked 	highest 	by 	the panel. 	The 	chiefs
generally 	select 	from within 	the 	first 	five 	candidates. 	Thus,
while 	the 	sergeants 	who 	are 	panel participants 	have 	some
involvement 	in 	the hiring process, 	the 	sergeants do not
demonstrate 	any 	degree 	of 	autonomy or 	control over 	the 	hiring
decision. 	No 	finding 	of 	independent 	judgment 	in 	the hiring
decision 	can 	be 	sustained.
The University 	also argues 	that 	the 	sergeants 	assign 	and
direct work of 	the officers. 	The 	record 	demonstrates, 	however,
that 	the 	actual 	tasks 	undertaken 	by 	the 	sergeants 	resemble
routine 	or 	clerical 	decision-making 	rather 	than 	clear 	choices
3The 	record 	does 	not 	contain 	evidence 	referring 	to
sergeants' 	exercise of 	authority 	to 	transfer, 	lay off, 	recall
or 	promote 	employees.
I
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between 	two or more 	significant alternatives. 	Thus, 	while 	the
sergeants 	assign officers within 	their 	shifts, 	the 	assignment
is 	regulated 	by 	an 	established 	minimum 	staffing 	requirement.
Call-up of 	off-duty personnel 	or 	ordering 	of 	overtime 	is
undertaken 	to 	satisfy 	the 	established 	staffing 	requirements.
As 	to 	the 	assignment 	of personnel 	to a particular 	shift, 	the
testimony 	is unclear. 	In general, 	it 	is 	the lieutenants 	rather
than 	the 	sergeants who perform 	this 	function. 	The 	sporadic 	and
atypical performance 	of 	shift 	assignments 	is 	thus 	insufficient
in 	itself 	to warrant 	exclusion. 	Where 	the 	sergeant directs
officers 	to perform specific 	tasks, 	the 	nature of 	the 	function
is more 	akin 	to control over 	work processes 	by an employee with
greater 	experience 	and 	technical 	expertise 	rather 	than 	the
exercise 	of 	authority on management's 	behalf 	to control or
influence personnel decisions. 	In sum, 	we view the 	sergeants'
authority 	to 	assign 	and 	direct 	work 	as 	being 	exercised within
the 	narrow 	confines 	of 	established 	patterns 	of 	staffing 	and
devoid 	of 	any meaningful 	measure 	of 	independently 	exercised
control.
The 	sergeants' 	authority 	to adjust employee grievances 	is
alleged 	by 	the University 	as 	a 	basis 	for 	requiring 	the
supervisory exclusion. 	We 	disagree. 	We do not 	dispute 	the
hearing 	officer's 	finding 	that 	the 	sergeants 	frequently 	resolve
the 	informal disputes or grievances of 	the officers. 	However,
we 	do 	not 	view 	this 	function 	as 	satisfying 	the 	statutory
directive 	to adjust 	employee 	grievances 	in 	the 	interest of 	the
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employer. 	In other words, 	the sergeants' adjustments of 	these
day-to-day work 	disputes 	are 	not 	based 	on 	an obligation or
allegiance 	to 	the 	employer. 	Efforts 	to 	resolve problems 	in an
informal manner 	spring 	from the 	employees' 	common goal of
insuring 	a 	congenial, 	smooth 	functioning work environment. 	The
sergeants' 	involvement 	in this process poses no conflict with
the officers' 	negotiating 	relationship with management.
As 	to 	the 	University's 	established 	grievance 	procedure4
which 	purports 	to 	invest 	sergeants 	with 	first level 	authority
to adjust 	certain 	types of grievances, 	we 	find 	no evidence 	to
substantiate 	the 	claim 	that 	the 	sergeants 	have 	so 	acted. 	We
decline 	to conclude 	that 	the 	University has 	satisfied 	its
4Executive 	Order No. 	262, 	issued in 1977, 	established a
grievance 	procedure 	for 	non-academic 	and 	administrative
employees. 	According 	to C. 	Norman Lloyd, 	coordinator of public
safety, 	a grievance must 	be 	in writing 	to be cognizable 	under
the University's procedure. 	Section V defines 	the 	scope of 	the
procedure.
Whenever 	an 	employee 	believes 	he/she 	has
been 	personally 	adversely 	affected 	by 	any
action 	taken 	by her/his 	appointing 	authority
in 	the 	following matters:
A. 	Violation of CSUC or 	campus policies
governing 	working 	conditions
B. 	Promotion
C. 	Retention
D. 	Layoff
E. 	Performance Evaluation
F. 	Merit Salary Adjustment
G. 	Discrimination Prohibited 	by Law
Lloyd 	testified 	that 	the 	sergeants 	have 	authority 	to 	adjust
grievances 	concerning 	evaluations 	and 	violations 	of 	University
policy 	like 	days 	off.
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evidentiary 	burden where 	no 	evidence 	establishes 	that 	the
sergeants 	regularly act 	in 	this 	capacity. 	The mere potential
to do so, 	like a job description, 	is 	insufficient to remove the
sergeants 	from HEERA's collective 	bargaining 	scheme.
In 	reaching 	our 	conclusion 	that 	the 	sergeants 	are 	not
supervisory employees, 	we have paid particular 	attention to the
testimony concerning 	the 	sergeants' 	authority to discipline,
suspend, 	discharge 	and 	reward officers. 	While we acknowledge
certain 	instances 	where 	a 	particular 	sergeant's 	disciplinary
recommendation has 	been 	followed, 	we 	also 	find 	that 	the 	record
contains 	evidence 	to 	the 	contrary. 	For 	example,
Sergeant 	Steven King, 	employed 	on 	the Long Beach 	campus,
testified 	that 	not 	all of 	his 	recommendations 	regarding 	written
reprimands have 	been 	followed. 	Chief John D. 	Schorle of
San Francisco discussed 	two 	recommendations 	by 	sergeants 	to
terminate probationary employees, 	neither 	of which was 	followed.
The 	evidence 	that 	sergeants 	are 	truly 	vested 	with
disciplinary 	authority and 	control 	is 	further 	called 	into
question 	by 	testimony 	referencing 	those 	instances 	where
sergeants' 	specific 	recommendations 	have 	been altered.
Sergeant 	King 	testified 	that 	his 	recommendation 	to 	suspend 	an
employee was 	not 	followed. 	Rather, 	a written reprimand was
imposed. 	Chief Schorle 	similarly described 	an 	instance where 	a
sergeant's 	recommended 	five-day 	suspension 	and 	orally
recommended 	termination was 	reduced 	to 	a 	two-day 	suspension.
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Chief Arthur 	Butler 	from 	the 	San Bernardino 	campus 	also
testified 	that 	on his 	campus 	one 	recommendation 	for 	discipline
was 	reduced 	to 	a 	lesser 	penalty. 	The 	case 	involved 	the chief's
determination 	that 	a probationary employee was 	"salvageable"
and 	would 	become 	a productive 	employee.
In addition 	to 	the 	instances 	noted 	above, 	other witnesses
offered 	testimony 	describing 	the 	typical procedure 	for 	imposing
discipline. 	Sergeant E. 	H. 	Henry from the Long Beach campus
testified 	that 	he 	operates 	within 	the 	disciplinary guidelines
and, 	prior 	to 	issuing 	a written 	reprimand, 	would discuss 	the
matter 	with 	the 	lieutenant. 	Chief Schorle 	described his 	role
in 	a particular 	disciplinary action 	as 	concurring with 	the
sergeant's 	and 	lieutenant's 	recommendation which 	the 	chief
forwarded 	to the Chancellor's office, 	the personnel office and
the 	University president.
Sergeant Michael Kolb, 	employed on the Los Angeles campus,
testified 	that 	officer 	evaluations 	and 	disciplinary matters
were 	reached 	by consensus or 	composite opinion. 	He 	referred 	to
one 	situation where 	he 	reviewed 	the 	employee's 	record 	with 	the
lieutenant.
From 	the Pomona 	campus, 	Chief Thomas Smith 	testified 	that
sergeants 	effectively 	recommended 	discipline. 	He 	also 	stated,
however, 	that 	the officers' 	evaluations were 	forwarded to the
chief 	prior 	to discussion 	with 	the 	employee 	and 	that
evaluations 	would 	not 	be 	accepted 	unless 	signed 	by both 	the
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sergeant 	and 	the 	lieutenant. 	In a 	recent 	case Smith described,
discipline was 	jointly 	recommended 	by 	the 	sergeants 	and
lieutenants.
The other 	witness 	from the Pomona campus,
Sergeant 	Luis Morales, 	corroborated Chief 	Smith's 	description
of the 	sergeants' 	role. 	Morales 	testified 	that he 	reviews an
officer's 	evaluation 	with 	the 	chief 	and 	lieutenant prior 	to
discussion with 	the 	individual employee. 	In one 	instance, 	the
lieutenant 	and 	three 	sergeants 	agreed 	to 	recommend
termination. 	Sergeant Morales 	also 	stated 	that 	the 	lieutenant
makes 	an 	independent 	evaluation of 	all probationary employees.
Chief Albert 	Zuniga, 	employed 	in Bakersfield, 	testified
that on a 	particular 	occasion, 	he assigned a 	sergeant 	to
investigate 	an 	incident 	and 	conferred with 	the 	sergeant
regarding 	the 	report 	he prepared.
In 	addition 	to these witnesses, 	testimony was 	received 	from
C. 	Norman Lloyd, 	coordinator 	of public 	safety for 	the
University. 	He stated 	that, 	when evaluating officers, 	the
lieutenants 	generally 	review 	the 	evaluation with 	the 	sergeant
"before 	reviewing 	it with 	a higher 	authority."
Q. 	You 	indicated 	that Sergeants 	are
involved 	in discipline of Officers, 	is that
correct?
A. 	In 	recommending 	discipline of Officers,
yes.
We 	find 	that 	the 	evidence 	appearing 	in 	the 	record 	fails 	to
demonstrate 	that 	sergeants' 	disciplinary authority 	is
13

sufficiently 	autonomous 	to 	be 	charged 	with 	independent
judgment. 	What 	emerges 	from 	the 	record 	is 	a process where
employee 	evaluations 	undergo 	substantial prior 	review by
lieutenants 	and 	chiefs. 	The 	alleged 	control 	over 	disciplinary
matters 	actually 	amounts 	to a 	recommendation 	that may be
accepted 	if 	superiors 	find 	it well-reasoned 	but may 	just 	as
well be 	ignored 	or 	rejected 	at 	the 	superior's option.
Moreover, 	we 	are 	unwilling 	to characterize 	the 	isolated
examples 	of 	adopted 	recommendations 	from 	sergeants 	as 	being
representative of 	the sergeants' 	typical 	duties. 	In balance,
the 	direct 	testimonial 	evidence 	cited 	above, 	coming 	from
sergeants 	and chiefs alike, 	persuades 	us 	to the contrary.
We note, 	in addition 	to 	the 	foregoing discussion, 	that 	the
testimony 	also 	firmly 	establishes 	that 	the 	sergeants 	perform
many duties 	substantially 	similar 	to 	their 	subordinates. 	In
the main, 	the 	record depicts 	sergeants who work 	side 	by side
with 	the 	officers 	and whose 	"supervising" 	consists 	of 	giving
direction 	as 	would 	a lead person. 	Consequently, 	we do not 	find
from 	the 	evidence 	the University presented 	that 	the 	sergeants'
obligation 	to 	the 	employer 	warrants 	their 	exclusion 	from 	the
unit. 	As 	required 	by the 	statute, 	we 	find 	that 	sergeants
perform duties 	substantially 	similar 	to 	their 	subordinates 	and
decline 	to 	find 	them to be 	supervisors.
ORDER
Having 	carefully 	examined 	all 	the 	evidence 	presented 	by 	the
14

parties, 	we 	find 	that 	the University has 	failed 	to 	satisfy 	its
burden 	of proof. 	We 	therefore 	reverse 	the 	hearing 	officer 	and
ORDER 	that 	Supervising Public 	Safety Officers 	I 	be 	added 	to 	the
established 	unit.
Member Burt 	joined 	in 	this Decision.
Member Tovar's dissent begins 	in page 	16.
15

Tovar, Member, dissenting:
I 	vehemently disagree 	with 	my 	colleagues 	and 	find 	ample
evidence 	on 	the 	record 	to 	support 	the 	finding 	that 	Supervisory
Public Safety Officer 	I 	(sergeants) 	are 	indeed 	supervisors
under 	HEERA.
The 	term 	"supervisory 	employee" 	is 	defined 	in 	section
3580.31 	of 	the 	Higher 	Education Employer-Employee 	Relations
Act 	(HEERA or Act). 	With 	respect 	to 	supervisory exclusionary
issues, 	the Board 	has continued 	to 	apply 	the disjunctive
interpretation of 	section 	3580.3. 	See 	Unit 	Determination 	for
Employees 	of 	the 	California 	State 	University 	and 	Colleges
pursuant 	to Chapter 	744 of 	the 	Statutes of 	1978 	Higher
Education 	Employer-Employee 	Re1ations 	Act 	(9/22/81) 	PERB
Decision No. 	173-H and 	(11/17/81) 	PERB Decision No. 	176-H.
1Section 	3580.3 	provides:
"Supervisory 	employee" 	means 	any 	individual,
regardless 	of 	the 	job description or 	title,
having 	authority, 	in 	the 	interest of 	the
employer to hire, transfer, suspend, lay
off, recall, promote, discharge, assign,
reward, or discipline other 	employees, or
responsibility 	to direct 	them, 	or 	to adjust
their grievances, 	or 	effectively 	to
recommend such action, 	if, 	in connection
with 	the 	foregoing, 	the 	exercise of such
authority 	is 	not of 	a merely 	routine 	or
clerical nature, 	but requires 	the 	use of
independent judgment. 	. 	. 	. 	Employees whose
duties 	are 	substantially 	similar 	to 	those 	of
their 	subordinates 	shall 	not 	be 	considered
to 	be 	supervisory employees.
16

If CSU demonstrates 	that 	an employee meets 	one of 	the
specified 	criteria 	for 	exclusion 	and 	does 	no 	rank-and-file
work, 	the 	employee 	will be excluded 	from the 	unit. 	Unit
Determination 	for 	Professional 	Scientists 	and 	Engineers,
Lawrence 	Livermore 	National 	Laboratory, 	of 	the 	University of
California 	Pursuant 	to Chapter 	744 	of the 	Statutes 	of 	1978
Higher 	Education 	Employer-Employee 	Relations Act 	(3/8/83) 	PERB
Decision No. 	246b-H.
Realizing 	that 	in most 	cases 	the 	duties 	include 	both
rank-and-file 	and 	supervisory elements, 	the 	Board 	developed
several guidelines 	in 	the 	Unit Determination 	246b-H, 	supra,
case.
Inclusion 	into 	the 	rank-and-file 	unit 	will 	occur 	where
control 	is 	demonstrated 	only 	over 	work 	processes 	and 	not 	when
personnel policies 	and 	practices 	are 	involved.2 The 	majority
attempts 	to characterize 	sergeants 	as 	lead 	employees. 	However,
sergeants 	have 	control over 	more 	than 	just 	the 	work process 	in
that 	they have 	supervisory 	responsibilities 	in 	personnel 	and
administrative matters 	such 	as evaluations, 	commendations,
reprimands, 	assignment of 	duties 	and 	approval of overtime 	and
shift 	assignments. 	These 	supervisory 	responsibilities 	of
sergeants 	in 	administrative 	and 	personnel matters dictate 	their
2These 	employees 	are 	often 	called 	"lead" 	employees: 	while
performing 	some 	supervisory personnel 	functions, 	the 	bulk of
their 	duties 	are 	substantially 	similar 	to 	those 	of 	their
subordinates.
17
-----------

exclusion 	from the 	rank-and-file 	unit. 	See, 	Unit Determination
246b-H, supra. 	Further, 	there 	is 	a category of officers
referred 	to 	as 	lead 	officers 	who 	are 	below 	the 	sergeants'
classification. 	Therefore, 	the majority's attempts 	to
analogize 	Supervisory 	Public 	Safety 	Officer 	I's 	to 	lead
officers 	is 	an 	attempt 	to mask 	the 	depth 	of 	their 	supervisory
duties.
The 	majority 	isn't 	really 	adhering 	to Board 	precedent 	but
has 	developed 	a 	new 	standard 	with 	no 	statutory 	basis. 	My
colleagues 	conclude 	that 	the 	sergeants 	do 	not 	perform 	any of
the 	enumerated 	supervisory 	functions 	to 	a degree 	sufficient 	to
justify 	relinquishment 	of 	their 	entitlement 	to 	the 	rights
afforded 	by HEERA. 	This 	"degree" 	test 	is 	inappropriate. 	The
guidelines 	outlined 	in 	the 	Unit 	Determination 	246b-H, 	supra,
case 	clearly 	indicate 	that 	the 	controlling 	factor 	in 	these
types 	of cases 	is 	the 	point 	at which 	the 	employees' 	supervisory
obligation 	to 	the 	employer 	outweighs 	their 	entitlement 	to 	the
rights 	afforded 	rank-and-file employees. 	This 	point 	is 	not
determined 	merely 	by 	quantitative 	analysis. 	The 	Board 	wants
to 	avoid 	a potential 	conflict 	of 	interest 	involving 	the
supervisors' 	loyalties which may occur 	as 	a 	result of 	the
negotiating 	relationship over 	issues 	such 	as wages, 	hours 	and
working 	conditions. 	Thus, 	even 	though 	the 	employees may spend
part 	of 	their 	time 	performing 	the 	work of 	subordinates, 	as 	they
do here, 	their 	involvement 	in one or more supervisory
---------
18

---
functions, 	not 	the degree of 	their 	involvement, 	may conflict
with 	their 	participation 	in 	rank-and-file 	unit 	activity. 	This
supervisory 	obligation precludes a 	finding 	that 	the 	disputed
employees' 	duties, overall, 	are "substantially similar" to
those 	of 	their 	subordinates. 	See 	Unit 	Determination 	246b-H.
This 	is 	the 	critical point my colleagues 	choose 	to 	ignore 	for
the 	expediency of 	their 	finding. 	The 	facts 	in 	this 	case
support 	the 	finding 	that 	sergeants 	are 	indeed 	supervisors 	with
control 	over 	work 	processes 	and 	administrative 	and 	personnel
matters.
Sergeants 	regard 	themselves 	as 	supervisors, 	and 	the
officers 	whom 	they 	supervise 	perceive 	them 	to 	be 	their
supervisors 	as well.
Sergeants 	are 	the 	first-line 	evaluators 	of 	the 	officers.
They 	fill 	out 	performance 	evaluations 	on 	patrol 	officers
assigned 	to 	them, 	both probationary and 	permanent. 	Sergeants
clearly 	have 	to 	utilize 	independent 	judgment 	in 	completing 	the
evaluations. 	The 	form provides 	guidelines 	but 	the 	sergeants
must 	independently 	analyze 	the 	actions 	and 	demeanor 	of 	the
officers 	and 	translate 	those 	perceptions/evaluations 	into 	a
qualitative 	analysis. 	There 	is nothing mechanical or
ministerial 	about 	such 	an 	intellectual process. 	In 	addition,
there 	are 	open-ended 	questions 	where 	sergeants 	write 	their 	own
opinion of 	the 	evaluatee. 	The 	evaluating 	sergeant 	must 	also
indicate 	whether 	or 	not 	s/he 	recommends 	the 	employee 	for
19

permanent 	status. 	The 	Performance 	Sheet 	for 	permanent
employees 	is 	even more 	open-ended, 	requiring more 	narrative 	and
independent 	analysis 	on 	the 	part of 	the 	evaluating 	sergeant
(See SUPA Exhibit No. 	4 ) . 	The majority claims 	that employee
evaluations 	undergo 	substantial prior 	review 	by 	lieutenants 	and
chiefs. 	The 	record 	reveals 	that 	their 	"review" 	in no way
negates 	the 	supervisory 	status of 	sergeants. 	The 	evaluations
are 	independently 	filled 	out 	by 	the 	sergeants 	on 	behalf 	of 	the
employer. 	The 	lieutenant 	and/or 	the 	chief 	confer 	with 	the
sergeant 	before 	discussing 	the 	evaluation with 	the 	officer 	in
question 	because 	s/he 	is 	the 	person most 	knowledgeable 	and
familiar 	with 	the 	evaluation 	and 	the 	evaluatee. 	The 	three 	are,
in effect, 	caucusing 	over 	a personnel matter 	before discussing
it with 	a rank 	and 	file member. 	This 	is 	evidence 	that
sergeants 	are 	an 	important 	part 	of 	management's 	team 	and 	have
effective 	input 	in 	the 	evaluation process.
Sergeants 	inspect 	the officer's 	incident 	reports 	to 	insure
all 	substantive 	aspects 	of 	the 	crime 	are 	included. 	They 	also
check 	for 	grammatical errors 	and 	the 	correctness of 	form. 	If
the 	report 	requires 	that 	some corrections 	be made, 	the 	sergeant
will 	instruct 	the 	officer 	to make 	the 	necessary 	corrections.
There 	was 	testimony 	that 	if 	the 	officer 	did 	not obey, 	the
sergeant would 	make 	a 	recommendation 	for 	disciplinary 	action.
Although 	the 	lieutenants 	subsequently 	review 	the 	sergeants'
evaluations, 	this 	review 	is more 	informational 	and perfunctory
20

than 	substantive 	since 	lieutenants 	do 	not 	have 	the 	necessary
first-hand 	information/observation 	to 	allow 	them 	to make 	an
independent 	evaluation of 	the 	officers 	as do 	the 	sergeants.
There was also testimony, which I 	feel 	is significant, 	that the
recommendation 	of 	sergeants 	to 	permanently 	appoint 	probationary
employees 	is 	generally 	followed 	by 	the 	sergeants' 	superiors.
Sergeants 	make 	recommendations 	to discipline 	or 	discharge
officers. 	Although 	there 	weren't many 	instances 	where 	there
was 	a need 	to discharge, 	there 	was 	testimony 	that 	following
particularly 	egregious 	conduct 	on 	the 	part of 	one 	officer
(Benson) 	and one 	dispatcher 	(Molina) 	the 	recommendation 	by the
sergeants 	to discharge 	these 	employees 	were 	effectively
followed. 	Even 	when 	the 	chiefs 	have 	not 	completely 	followed
the 	termination 	recommendation 	by 	the 	sergeant 	because, 	among
other 	things, 	the 	chief 	thought 	the 	recommended 	discipline 	too
severe, 	it 	is clear 	that 	the 	chief 	has 	responded 	to 	the
sergeant's 	concerns 	and 	taken 	certain disciplinary 	steps 	short
of 	the 	termination. 	For example, 	changing 	the officer 	in
question 	from one 	shift 	to 	another 	where 	he 	could 	cause 	fewer
problems, 	or 	giving him verbal 	reprimands.
Sergeants 	can 	and 	do 	assign officers 	within 	their 	shifts 	as
my colleagues 	admit. 	This 	assignment 	is 	not 	routine or
clerical 	but 	involves 	choices 	on 	the 	part 	of 	the 	sergeants
between 	two or 	more 	alternative 	courses of 	action. 	For
example, 	sergeants 	in charge will decide which officer 	under
21

their 	supervision 	to 	assign 	to 	what 	task 	depending 	on 	the
circumstances 	and 	ability of 	the 	personnel on duty. 	If 	the
shift 	is 	short of 	personnel, 	the 	sergeant 	can and 	does 	call
off-duty officers 	to 	come 	in 	and/or 	can 	require 	officers 	to
work 	overtime. 	The 	sergeants 	have 	complete discretion 	to
decide whom to call. 	In 	that 	respect, 	sergeants 	approve
reports 	authorizing 	overtime 	without 	the 	approval of 	the
lieutenant. 	Sergeants 	also have 	the 	authority 	to grant 	days
off.
During 	special 	events, 	while 	lieutenants 	have 	overall
responsibility 	for 	the 	entire 	special 	event, 	sergeants 	have 	the
responsibility 	for 	particular 	areas 	and 	will 	direct 	those
officers 	who 	have 	been 	assigned 	to 	them, 	including 	assigning
one 	officer 	rather 	than 	another 	who, 	in 	the 	sergeant's
judgment, 	is better 	able to deal with, 	for example, 	crowd
control.
Sergeants 	have 	authority 	to 	recommend 	that 	officers 	be
commended 	for 	exemplary work. 	The 	commendation 	is 	placed 	in
the 	officer's personnel 	file. 	The 	evidence 	indicates 	that
sergeants 	exercised 	such 	authority.
Sergeants 	typically 	handle 	day-to-day 	"gripes 	and 	bitches"
or 	complaints 	from 	the 	officers 	on 	behalf of 	their 	employer 	and
try 	to 	resolve 	them 	informally. 	Merely 	because 	they 	have 	not
had 	the 	occasion 	to 	adjust 	a 	formal 	grievance 	does 	not mean
they do not 	have 	the 	authority 	to do 	so, 	but 	indicates 	that
22

sergeants 	have 	been effective 	in 	settling 	the 	grievances 	at 	the
informal 	level.
The 	minimum qualifications 	and 	requirements 	for 	sergeants
indicate 	that 	a higher 	level 	of 	education 	is 	necessary 	for 	them
than 	for 	officers, 	as well as 	the 	successful completion of
Peace Officer 	Standards 	and Training 	(POST) 	certified
supervisory 	training 	course. 	POST 	Supervisory 	course
curriculum 	details 	the 	supervisory 	nature 	of 	sergeant's
required 	training 	(See CSU Exhibit No. 	2 and No. 	3 ) . 	Course
objectives 	include: 	a) 	identification and explanation by
sergeant 	of 	all 	items 	a 	supervisor 	must 	consider 	when 	preparing
a 	shift duty 	schedule; 	b) 	preparation of 	a week's duty schedule
for 	that 	shift; 	c) 	identification and discussion of methods 	for
identifying 	needs 	and 	gathering 	and 	interpreting 	data, 	etc.;
d) 	management expectations of 	first-line 	supervisors; 	and
e) 	ability 	to 	respond 	to media 	and 	the 	public on behalf 	of
management 	regarding 	departmental policies. 	The 	course 	outline
of 	a pilot 	presentation of 	a 	POST supervisory 	course 	given
January 10, 	1977 - January 21, 1977, (see CSU Exhibit No. 	3),
indicates 	that 	sergeants 	received 	training 	in 	the 	following
areas:
a) 	Management 	skills, 	comprising of:
1. 	Theories of management
2. 	Handling 	complaints 	and 	grievances
3. 	Problem solving 	and 	decision making, 	and
4. 	Media 	relations
23

b) 	Training 	skills
1. 	Sergeant 	as 	trainer
c) 	Supervision skills, 	including:
1. 	Personnel performance 	appraisal
2. 	Supervisory 	styles
3. 	Morale 	and discipline
This 	comprehensive 	supervisory 	training 	sergeants 	receive
demonstrates 	they 	are more 	than 	"lead" 	employees 	in 	that 	they
play 	an 	important 	role 	on 	behalf 	of management 	over 	work
processes, 	personnel and 	administrative matters.
As 	Chief 	Schorle 	testified 	on 	the 	differences 	between 	an
officer 	and 	a 	sergeant.
One 	basic difference 	might 	be 	that 	an
officer 	does 	and 	a 	sergeant 	supervises.
Certainly, 	the sergeants direct, 	coordinate,
control, 	train, discipline, 	and in all
facets 	of police operation on my campus, 	the
sergeants 	are 	the 	linking 	pin 	between my
directions 	and 	policy 	and 	the 	officer's
implementation of 	appropriate 	procedures.
(Tr. p. 300.)
Chief 	Schorle's 	statement 	that 	sergeants 	play 	a 	key
"linking 	pin" 	role 	between management 	and 	the 	rank 	and 	file 	on
behalf of management 	is demonstrated 	by CSU's 	Exhibit 	No. 	12.
The 	exhibit 	is 	a memo 	from Sergeant Kolb 	to 	the 	chief 	reporting
on 	the 	qualifications 	and 	status 	of 	a police 	applicant.
Sergeant 	Kolb 	went 	to 	the 	Los 	Angeles 	Police 	Department
Personnel Division, 	Background 	Investigators Office, 	on behalf
of 	his 	employer 	to 	review 	the 	record of 	the 	applicant who 	had
24

served 	with 	the 	Los 	Angeles 	City Police 	Department. 	After 	a
detailed 	analysis 	Sergeant 	Kolb concludes 	"I 	believe 	that 	[the
applicant] 	would 	need 	more 	supervision 	than 	this 	department 	can
provide." 	Thus, 	sergeants 	perform 	important 	personnel
functions 	on 	behalf 	of 	the 	employer 	which 	could 	potentially
pose 	a conflict 	if 	they were 	to 	be 	included 	in 	the 	rank 	and
file 	unit.
Another 	example 	of 	a 	sergeant 	performing 	a 	supervisory
function on 	behalf 	of management 	is 	a memo 	from Sergeant 	Kolb
to 	the 	chief 	reporting 	on 	concerns 	which 	the 	sergeant 	had
ascertained 	from 	the 	officers 	and 	notifying 	the 	chief 	which 	of
these 	concerns 	the 	sergeant 	was 	planning 	to address. 	(CSU
Exhibit No. 	14)
----------Conclusion
The Board 	precedent 	is 	clear 	that 	the 	important 	factor 	in
this 	type of 	case 	is 	the point 	at which 	the employees'
supervisory 	obligation 	to 	the 	employer 	outweighs 	their
entitlement 	to 	the 	rights 	afforded 	rank-and-file 	employees.
Unit 	Determination 	246b-H, 	supra.
I 	think 	that, 	in 	the 	instant case, 	the performance of
important 	personnel 	and 	administrative 	supervisory 	functions 	by
sergeants 	clearly 	requires 	their 	exclusion 	from 	the 	rank 	and
file 	unit. 	There 	is 	a great potential 	for 	conflict as 	a result
of 	including 	sergeants 	in 	the 	rank-and-file 	unit 	due 	to 	the
negotiating 	relationship over 	issues 	such 	as wages, 	hours 	and
25

working 	conditions 	and 	the 	role 	that 	sergeants 	play 	in
representing 	management's 	interests 	on 	such 	issues 	as
evaluations, 	assignments, 	discipline and public relations.
Sergeants 	receive 	a higher 	salary 	than 	officers 	due 	to
their 	supervisory 	responsibilities. 	Sergeants must 	undertake 	a
POST supervisory 	course 	curriculum as 	a 	condition 	of
POST-certification. 	Many 	sergeants 	have 	received 	a 	waiver 	to
take 	a middle management 	training 	course. 	Most 	important,
sergeants 	along 	with 	lieutenants 	attend 	staff 	meetings 	on 	an
ongoing 	basis 	called 	by 	the 	chief of 	each 	campus. 	The
following may 	be 	discussed 	at 	these meetings: 	performance
evaluations 	prepared 	by 	the 	sergeants 	on patrol officers;
formulation 	of 	budget 	where 	sergeants 	are 	given 	specific
assignments 	to prepare 	implementation 	material 	for 	the 	budget;
and 	department 	policies 	and 	other 	personnel 	matters.
Even 	though 	the 	sergeants 	in 	the 	instant 	case 	spend 	a
majority of 	their 	time 	performing 	the 	work 	of 	subordinates,
their 	involvement 	in 	the 	various 	supervisory 	functions 	outlined
above, 	including 	their 	participation 	in 	the management 	staff
meetings 	and 	the 	evaluative 	nature 	of 	their 	relationship with
the 	officers, 	will conflict 	with 	their 	participation 	in 	the
rank-and-file 	unit 	activity. 	Ultimately, 	the majority has
disregarded 	the 	activities 	that 	indicate 	supervisory 	indicia
and 	focused 	on 	a 	few 	nonsupervisory 	activities, 	distorting
their 	importance. 	Sergeants 	owe 	their 	undivided 	loyalty 	to 	the
26

employer 	in making 	decisions 	that 	affect 	personnel matters 	of
the 	employees 	they 	supervise. 	CSU has met 	its 	burden of proof,
I would 	therefore 	deem 	sergeants 	to 	be 	supervisors 	under 	HEERA
and 	exclude 	them 	from 	the 	rank-and-file 	unit.
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.