State of California (Department of Personnel Administration) (California State Employees Association) (PERB 0871S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE OF 	CALIFORNIA, 	DEPARTMENT
OF 	PERSONNEL ADMINISTRATION,
Employer,
and
CALIFORNIA STATE 	EMPLOYEES'
_________
ASSOCIATION,
Exclusive Representative.
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) 	Case Nos. 	S-UM-380-S
S-UM-383-S
(S-SR-15)
PERB Decision No. 	871-S
March 20, 	1991
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Appearances: 	Joan Branin, 	Labor Relations Counsel, 	for State of
California, 	Department of Personnel Administration; 	Howard
Schwartz, 	Attorney, 	for California State Employees Association.
Before Hesse, 	Chairperson; 	Shank, 	Camilli and Cunningham,
Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by 	the
California State Employees' 	Association 	(CSEA) 	and the Department
of Personnel Administration 	(DPA) 	to a proposed decision of 	a
hearing officer 	(Board agent), 	granting the unit modification
petitions 	filed by DPA. 	DPA 	sought to 	exclude 	Supervising Cook 	I
(SC 	I) 	and Food Service Supervisor I 	(FSS 	I) 	classifications 	from
Bargaining Unit 	15 	(Unit 	15) 	on the grounds 	that they were
supervisory classes 	under 	section 	3522.1 	of 	the Ralph C. 	Dills
Act 	(Dills Act or Act). 	The Board agent 	found that 	employees 	in
1 Ralph C. 	Dills Act 	is 	codified at Government Code 	section
3512 	et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory
references 	herein are to the Government Code. 	Section 	3522.1
provides:
_ )

the SC I 	classification at the Departments 	of 	Developmental
Services 	Mental Health, 	Education	
- 4	
, 	Veterans Affairs,
Rehabilitation, 	California Conservation Corps 	and 	employees 	in
the FSS 	I 	classification at 	the 	Departments 	of 	Developmental
Services, Mental Health, 	Education, 	and Veterans Affairs, 	are
supervisory, 	and therefore must be 	excluded 	from Unit 	15. 	The
Board agent denied DPA's 	request 	to 	exclude 	from Unit 	15 	those
employees 	in the 	SC 	I 	classification at 	the California 	Highway
Patrol, 	Department of Forestry, 	and the California Maritime
Academy.
The Board, 	after review of 	the 	entire record, 	including the
exceptions 	and responses 	filed by the parties, 	adopts 	the Board
agent's 	findings 	of 	fact 	and conclusions 	of 	law attached hereto,
and affirms 	the decision, 	consistent with the discussion below.
"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
this 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.
We note, 	however, 	that section 3522.1 was 	repealed by Statutes
1990, 	Chapter 1522 	(S.B. 	511), 	section 6 and added to section
3513 	as 	subdivision 	(g) 	without 	substantive changes 	by Statutes
1990, Chapter 1522, 	section 1.
N	
2

DISCUSSION
Findings 	of 	Fact
Although the 	Board agent's 	findings 	of 	fact 	are 	adopted by
the Board, 	there are two misstatements which need correction.
Concerning the 	S C I ' s 	at 	the 	Department of 	Education, 	the 	Board
agent 	stated:
The amount of time 	spent 	in 	"hands-on" 	food
preparation varies 	from 	site 	to 	site 	and 	is
largely a matter of 	individual 	style 	and
personality. . . .
(Proposed Decision, 	p. 	7.)
Gloria Cody, 	an SC I at the School 	for the Blind, 	testified,
however, 	that 	she personally takes 	the place of 	a worker 	in the
kitchen only in an emergency. 	Similarly, 	although Faye Randolph
(Randolph), 	an SC I 	at the School 	for the Deaf, 	testified a
majority of her day 	is 	spent 	in food preparation, 	her 	supervisor,
Lisa McGregor 	(McGregor), 	testified that Randolph rarely assists
in 	food preparation. 	The 	Board agent 	also 	found McGregor 	more
credible than Randolph 	in describing the 	scope 	of 	her duties.
(Proposed Decision, 	p. 	20.) 	Therefore, 	the Board finds, 	based
upon the record before us, 	that while 	some variance may exist, 	in
general, 	the S C I ' s 	for the Department of 	Education participate
in 	food preparation only on an occasional 	basis.
The 	Board 	agent 	also 	stated the 	S C I ' s with 	the 	California
Conservation Corps 	(CCC) 	". 	. 	. 	, unlike those in other
departments, 	spend a greater portion of 	the day 	in hands-on food
preparation." 	(Proposed Decision, 	p. 	10.) 	Neither Bill England,
an, area manager with the CCC, 	nor Angeline Juhl, 	an SC I 	in the
w	
3

Siskiyou Center, 	testified 	concerning what portion of 	the 	SC 	I's
work day 	is 	spent preparing 	food. 	Therefore, 	the 	finding that
SC 	I's 	at the CCC 	spend 	a 	greater portion of 	their day preparing
food than SC 	I's 	at 	other departments 	is 	not adopted.
Res 	Judicata
Prior to addressing the parties' 	exceptions, 	it is necessary
bo 	first resolve an issue 	concerning 	the doctrine 	of 	res 	judicata
raised by the petitions 	in this 	case.
DPA 	filed 	two 	unit 	modification petitions 	with 	PERB 	on
torch 30, 	1987, 	pursuant to PERB Regulation 32781(b)(5) 	The
2PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 	et seq. 	The Regulation in
affect at the time of the 	filing provided, 	in part:
(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:
(5) 	To delete classification(s) 	or
position(s) 	not subject to 	(1) 	above which
are 	not 	appropriate 	to 	the unit because 	said
classification(s) 	or position(s) 	are
management, 	supervisory, 	confidential, 	or not
covered by EERA, 	HEERA or SEERA 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 	as 	defined 	in
these 	regulations 	in 	section 	33020 	for EERA,
40130 	for SEERA or 	51026 	for HEERA.
This Regulation was 	renumbered as 	32781(b)(4) 	effective
4

petitions 	sought the removal 	of the SC 	I 	and FSS 	I
classifications 	from bargaining Unit 	15 	on the 	grounds 	that 	they
are 	supervisory within the meaning of 	section 	3522.1 	of 	the 	Dills
Act.
The SC 	I 	and FSS 	I 	classifications were placed in Unit 	15 by
the 	Board when the 	state bargaining units were 	initially
established. 	(See 	Unit 	Determination 	for the 	State 	of 	California
(SEERA) 	(1979) 	PERB Decision No. 	110-S.) 	DPA sought further
review of 	their placement 	in the 	Unit 	on the grounds 	that 	they
were, 	in fact, 	supervisory classifications. 	The Board in Unit
Determination for the State of California 	(SEERA) 	(1980) 	PERB
Decision No. 	110c-S 	specifically determined 	that 	they were 	not
supervisory and, 	therefore, 	should be 	included in the Unit.
Thus, 	the exclusion of 	these 	classifications 	on 	supervisory
grounds 	has 	been previously 	considered by 	the 	Board.
Furthermore, 	the 	instant petitions has 	been filed under PERB
Regulation 32781(b)(5), 	rather than on the basis of changed
circumstances under subsection 	(b)(l). 	As a result, 	an issue
arises 	as 	to whether DPA 	is 	precluded 	from relitigating 	the
exclusion of 	these 	classifications 	under the doctrine 	of 	res
judicata 	(collateral estoppel). 3
January 	1, 	1989, 	but no change was made in its 	substantive
provisions.
5
3The doctrine 	of 	res 	judicata 	involves 	two 	general 	concepts
addressing the relitigation of prior 	judgments. 	The 	Second
Restatement 	of 	Judgments 	uses 	the 	term 	"claim preclusion" 	for 	the
primary aspect of res 	judicata.' 	(Rest.2d Judgments, 	Chap. 	1,
p. 	4; 	7 Witkin, Cal. 	Procedure (3rd ed. 	1985) Judgments, 	sec.
190, 	p. 	623.) 	Collateral estoppel 	is the second aspect of res
5

We 	conclude 	that the petitions 	in this 	case may properly be
considered by the Board. 	In general, 	the doctrine of res
judicata precludes 	relitigation of 	an 	issue 	in a 	case when the
same 	issue(s) 	has 	been fully and 	fairly litigated and 	finally
decided 	in a prior action involving the 	same parties. 	(Pacific
Coast Medical 	Enterprises 	v. 	Department of Benefit Payments
(1983) 	140 Cal.App.3d 197, 	214 	[189 Cal.Rptr. 	558].) 	It has also
been generally 	recognized 	that 	res 	judicata 	applies 	in
administrative proceedings 	to 	decisions 	of 	an 	administrative
agency made pursuant to 	its 	quasi-judicial 	functions. 	(Ibid;
also 	see State of California, 	Department of Personnel
Administration 	(CAUSE) 	(1989) 	PERB Decision No. 	727-S.)
However, 	res 	judicata must be raised as 	an affirmative
defense. 	It is not jurisdictional, 	and, 	as 	such, 	may be waived
if 	not properly raised by the parties. 	(Barragan v. 	Banco BCH
(1986) 	188 Cal.App.3d 283, 	296 	[232 Cal.Rptr. 	758]; 	Sawyer v.
First City Financial Corporation 	(1981) 	124 Cal.App.3d 390, 	410
[177 Cal.Rptr. 398]; 2 Witkin, Cal. Procedure, supra,
- -
Jurisdiction, secs. 78, 79, pp. 447-449; 7 Witkin, Cal.
Procedure, supra. Judgment, 	sec. 	189, p. 	623.)
judicata and refers 	to 	"issue preclusion." 	(Rest.2d 	Judgments,
Chap. 1, p. 1; Rest.2d Judgments, secs. 2 7 et seq.; 7 Witkin,
Cal. Procedure, 	supra. Judgments, 	sec. 	253, p. 	691.) 	Under the
rule 	of 	issue preclusion a prior 	judgment 	"operates 	as 	an
estoppel 	or conclusive adjudication as 	to 	such 	issues 	in the
-second 	action 	as 	were 	actually 	litigated 	and determined 	in 	the
first action." 	(Todhunter v. 	Smith 	(1934) 	219 Cal. 	690, 	695
[28 P.2d 916]; 	emphasis added.)
It is the rule, of issue preclusion, 	under the doctrine of res
judicata, 	that we are presented with in this 	case.
66

Clearly 	the 	prior 	unit 	determination decision 	involving 	the
SC I 	and FSS 	I classifications was made pursuant to a quasi-
judicial 	function of PERB. 	(Unit Determination for State of
California 	(SEERA), 	supra. 	PERB Decision No. 	ll0c-S.)
Furthermore, 	CSEA has not asserted res 	judicata 	as 	a defense to
the petitions 	in this 	case. 	Accordingly, 	the 	Board may consider
the merits 	of 	the petitions 	and no 	showing of 	changed
circumstances 	is 	required.
Exceptions
CSEA 	filed 	eleven 	exceptions 	to 	the 	Board 	agent's 	proposed
decision. 	In its 	first two exceptions, 	CSEA objected to the
Board agent's 	conclusions 	that: 	(1) 	consideration of duties
actually performed by SC 	I's 	and FSS 	I's, 	regardless 	of 	job
description, 	is 	appropriate to determine whether they meet the
definition of 	supervisory employees; 	and 	(2) 	the Board agent was
not 	authorized to determine whether 	the 	duties 	have 	been 	lawfully
assigned. 	In its 	remaining exceptions, 	CSEA contends 	the 	Board
agent's 	findings 	of 	fact 	and 	conclusions 	of 	law were 	in error
with respect to the 	supervisory authority, 	responsibilities 	and
actual 	duties 	performed by the 	SC 	I's 	and 	FSS 	I's 	at 	the 	various
work 	locations 	identified 	in the petitions.
DPA excepts 	to 	the Board agent's 	conclusions 	that:
(1) 	there was 	insufficient evidence to 	exclude SC 	I's 	at 	the
Department of 	Forestry, 	California Maritime Academy and
California Highway Patrol 	from the bargaining unit; 	and 	(2)
members of the CCC 	(i.e. 	corpsmembers) 	are 	state employees.
77

In 	support of 	its 	first exception, 	CSEA contends:
. . . 	job descriptions 	are 	fully 	relevant 	to
the 	issues 	involved 	and that 	the 	Hearing
Officer 	committed prejudicial 	error 	by
refusing 	or 	failing 	to 	evaluate 	information
contained 	in these descriptions.
CSEA's 	contention that 	the 	job descriptions 	are relevant 	to
the issues 	involved has merit. 	We reject, 	however, 	CSEA's
contention that 	the 	Board agent 	refused 	or 	failed 	to 	evaluate 	the
information contained in them. 	Specifically, 	the Board agent
held:
At the hearing and through its 	brief, 	CSEA
argued 	that 	the 	Employer had 	unlawfully
assigned 	duties 	not 	specifically 	enumerated
in each employee's duties 	statement. 	It 	is
my role to 	consider the duties 	actually
performed by 	the 	SCIs 	and 	FSSIs 	regardless
of 	job description and determine whether they
meet 	the 	definition of 	supervisory employee.
[Fn. 	omitted.] 	It is not my role to
determine whether 	the duties 	have 	been
assigned 	lawfully 	or not.
(Proposed Decision, pp. 	3-4; 	emphasis in
original.)
After 	reviewing 	the 	administrative 	record 	and 	the 	above
statements 	in their full 	context, 	it does 	not appear the Board
agent 	concluded that he was 	to 	ignor- e 	the 	job descriptions.5
4The Board agent used the acronyms 	"SCI" 	and 	"FSSI" 	to 	refer
to 	the 	Supervising Cook 	I 	and 	Food Service 	Supervisor 	I
classifications, respectively.
5The terms 	"job description" 	and 	"duty 	statement" 	appear to
be 	used 	somewhat 	interchangeably by 	some 	of 	the witnesses 	and
occasionally by the parties. 	However, 	based upon the testimony
of Nancy Bither 	(Bither), 	an assistant 	section manager in the
Classifications 	and Compensation Division of the DPA, 	it 	is 	clear
that these terms 	are words 	of art used to describe more
specifically the 	duties 	and 	responsibilities 	demanded 	of 	the
(Classification at a particular work location. 	For example, 	a
duty 	statement 	for a SC 	I working at the Department of
8

Rather, 	we 	interpret the Board agent's 	statement to mean he 	is
not 	limited 	in his 	analysis 	to 	the 	express 	language 	contained 	in
the 	job 	descriptions 	when determining whether particular
classifications 	are 	supervisory, 	thus 	rejecting the 	analysis
sought by CSEA that 	the 	Board 	agent 	consider whether 	the 	duties
have 	been 	lawfully 	assigned.
Nevertheless, 	regardless of the Board agent's 	treatment of
the 	job descriptions, 	the Board considers 	them relevant to the
issue of whether the SC 	I 	and FSS 	I 	classifications 	are
Education's 	School 	for 	the 	Deaf-Riverside would 	identify 	certain
responsibilities, 	together with percent 	of 	time 	allocated to 	each
responsibility, 	that are unique to that location. 	Whereas, 	a
duty statement 	for a FSS 	I 	at the Diagnostic Center, 	Los Angeles,
would 	identify 	slightly different 	responsibilities, 	and possible
time allocations, 	unique to the needs 	of that work location.
Further, 	duty statements may, 	and do, 	vary slightly between
agencies as well. 	Thus, 	a FSS I 	(or SC I) 	assigned to a
Department of Education facility might, 	and 	indeed did, 	have duty
statements 	identifying 	responsibilities 	slightly different 	from 	a
FSS 	I 	(or SC I) 	assigned to the Departments 	of Veterans Affairs
or Developmental 	Services 	and Mental 	Health.
It must also be noted that 	job descriptions, 	duty 	statements 	and
classification specifications 	are distinct documents. 	As 	a
general 	rule, 	the 	specifications 	for a 	classification are
prepared by DPA, 	but ultimately 	subject 	to 	final 	approval 	by 	the
State Personnel Board 	(SPB). 	The 	specifications, 	while generally
comprehensive 	in their definitions 	of 	the 	class 	and duties
performed by 	incumbents, 	are typically not 	specific 	for
departments or work locations. 	Job descriptions, 	in contrast,
are 	generally developed by the 	individual 	agencies 	utilizing 	the
classification with the 	assistance 	of 	DPA. 	They tend to 	describe
more 	specifically the duties 	and tasks 	of 	the 	class 	for that
agency than do the class 	specifications. 	Similarly, 	duty
statements 	are more 	specific 	documents 	drawn from the 	job
description 	and 	generally prepared with 	specific 	work 	locations
in mind. 	The primary difference between the two documents 	is
that 	duty 	statements 	generally 	contain 	statements 	concerning 	the
allocation of 	time 	expected 	for certain responsibilities. 	Both
job descriptions and duty 	statements, 	however, 	are based on the
specification document and 	therefore 	are 	limited 	in 	their 	scope
to 	the 	responsibilities 	identified 	in the 	class 	specification.
96

supervisory for the following reasons. 	Article VII, 	section 3 	of
the California Constitution provides, 	in pertinent part, 	that:
(a) 	The 	[State Personnel] 	board shall 	enforce
the civil service statutes and, 	. 	. 	. 	shall
prescribe probationary periods 	and
classifications, 	adopt other rules authorized
by 	statute, 	and review disciplinary actions.
In accord with this 	constitutional 	mandate, 	the 	Legislature
adopted 	section 	18800 	of 	the 	Government 	Code which 	further
provides:
The 	[State Personnel] 	board 	shall 	create 	and
adjust classes 	of positions 	in the 	State
civil 	service. 	The classes 	adopted by the
board, 	shall be known as 	the Personnel
Classification Plan of 	the 	State of
California. 	The 	classification plan 	shall
include 	a descriptive 	title and a definition
outlining the 	scope 	of 	the duties 	and
responsibilities 	for each class 	of positions.
. ..
Thus, 	as a part of 	its 	constitutional responsibility, 	the State
Personnel 	Board 	(SPB)6 is 	required to develop descriptive titles
and definitions 	outlining the 	scope 	of 	the duties 	and
responsibilities for each class 	(i.e., 	class 	specifications).
Further, 	classification 	specifications 	are an integral 	and
6Recently, 	however, 	the Legislature transferred a portion of
the 	responsibilities 	for 	administering 	aspects 	of 	the 	Personnel
Classification Plan to DPA. 	(Government Code 	secs. 	19818;
19818.6; 	also 	see, 	Lund v. 	California State Employees Association
(1990) 	222 Cal.App.3d 174, 	188 	[271 Cal.Rptr. 	425].) 	In
particular, 	DPA is required to:
. 	. 	. 	assess the adequacy of the Personnel
Classification Plan and, 	as needed, 	recommend
changes 	in the plan to 	the 	State Personnel
Board. 	The recommendations 	shall 	include the
need 	for the 	establishment 	of 	additional
classes 	or the 	abolishment 	or alteration of
existing classes.
(Government Code 	sec. 	19818.10.)
10

significant 	component of 	the 	Personnel 	Classification Plan 	(Plan)
reflecting 	SPB's 	intent when 	creating 	classifications 	as 	well 	as
their status 	in the overall Plan. 	Therefore, 	neither the duty-
statement, 	job description, 	classification specifications, 	nor
the Plan itself, 	which the 	statements represent, 	should be
ignored 	by 	PERB when administering 	the 	statutes 	under 	its
jurisdiction. 	Moreover, 	recognition and accommodation of 	the
Plan 	is 	necessary 	in 	light of 	the California 	Supreme Court's
decision in Pacific 	Legal 	Foundation v. 	Brown 	(1981)
29 Cal.3d 168 	[172 Cal.Rptr. 	487] 	(PLF v. 	Brown).
In PLF v. 	Brown. 	supra. 	the court, 	responding to a challenge
that 	the Dills Act was 	unconstitutional 	on its 	face 	noted, 	inter
alia, that:
. 	. 	. 	the State Personnel Board's existing
classification 	structure 	is 	one 	of 	the
specific 	criteria 	PERB must 	consider 	in
determining the 	appropriate 	units 	for 	the
selection of 	an 	exclusive representative.
[Citation and fn. 	omitted.]
(Id. 	at p. 	187; 	emphasis added.)
Elsewhere, 	the court stated:
These numerous 	provisions 	[of 	the Act]
demonstrate . 	. 	. 	that the Legislature
drafted 	SEERA with 	the merit principle 	of
article VII 	[of 	the California Constitution]
firmly in mind, 	fashioning the 	statute
specifically 	to 	avoid 	any 	conflict with 	that
constitutional 	mandate.
(Id. 	at p. 	186; 	emphasis added.)
11

The Legislature's 	intent to avoid 	such conflicts 	is 	reflected, 	in
part, 	in section 3521 	of the Dills Act.7 In particular,
subsection 	(b)(2) 	of that 	section provides, 	in relevant part:
(b) 	In determining an appropriate unit, 	the
board 	shall 	take 	into 	consideration all 	of
the 	following 	criteria:
(2) 	The 	effect that the projected unit will
have on the meet 	and 	confer relationships,
emphasizing the 	availability 	and 	authority 	of
employer 	representatives 	to 	deal 	effectively
with 	employee 	organizations 	representing 	the
unit, 	and taking 	into account 	such factors 	as
. 	. 	. 	the effect on the existing
classification 	structure 	or 	existing
classification 	schematic 	of 	dividing 	a 	single
class 	or 	single 	classification 	schematic
among two or more units.
(Emphasis 	added.)
In 	light of the above, 	the Board 	finds 	that the Legislature
did not 	intend 	for PERB to 	ignore 	job descriptions, 	duty
statements, 	or the 	civil 	service 	classification 	structure
established by 	SPB 	in determining whether 	an employee 	or
classification is 	supervisory under the Act. 	Rather, 	it 	intended
that 	PERB 	consider the 	classification 	structure, 	together with
the duty statements, 	job descriptions, 	and class 	specifications,
77Our 	concurring 	colleagues 	misconstrue 	our 	reference 	to
PLF v. 	Brown. 	supra. 	They suggest our decision is based on the
mistaken perception that 	a 	conflict 	exists 	between PERB's 	role 	in
determining whether 	a 	classification 	is 	supervisory 	and 	SPB's
function 	in administering 	the 	civil 	service 	system 	(Hesse
concurrence, pp. 24-25; Cunningham concurrence, pp. 29-31), and,
further, 	that 	the obligation to harmonize PERB's 	role with SPB's
does 	not arise unless 	a conflict exists.
While there 	are many 	instances 	in which the 	function of 	SPB 	and
PERB may be 	in conflict, 	we disagree that 	such conflict 	is
required before 	PERB 	can or 	should 	act 	to harmonize 	our
respective,functions.
12

when modifying or determining 	"appropriate" 	bargaining units.
Such 	consideration 	extends 	to 	determining which 	classifications
or positions 	should be 	excluded or 	included 	in the 	bargaining
unit. 	Thus, 	the Board, 	in determining whether a particular
classification is 	"supervisory," 	may give 	some weight 	to 	the
scope of responsibilities, 	authority, 	and duties described in the
class 	specification and 	job description or duty 	statement 	created
by SPB.
The Board does not, 	however, 	find that the 	specifications,
job descriptions 	or duty 	statements 	create 	a 	rebuttable
presumption as to the status of the classification. 	Rather, 	such
documents 	should be 	considered 	in unit 	modification hearings,
along with 	the 	Board's 	analysis 	concerning 	supervisors 	contained
in Unit 	Determination 	for 	the 	State 	of 	California 	(SEERA), 	supra,
PERB 	Decision No. 	ll0c-S, 	to 	the 	extent 	they represent probative
evidence 	accurately 	describing 	the 	duties 	actually performed 	by
incumbents 	in the class(s). 	Further, 	the mere inclusion of the
word(s) 	"supervisor" 	or 	"supervisory" 	in the class title,
specification, 	job description, 	or duty statement is not
sufficient 	to 	support a 	finding by 	PERB 	that the 	class 	is
supervisory.
In addition, 	once there has been a determination that a
classification is, 	indeed, 	supervisory, 	subsequent exclusionary
challenges 	should be 	made 	on a position-by-position 	approach
based on the actual 	duties performed by the 	incumbent(s) 	in the
disputed positions. 	In such instances, 	however, 	PERB 	should	4 . ..
13

allow SPB, 	or its designee, 	the opportunity to review the
classification to assure 	that 	the positions 	in question are
properly 	allocated 	and 	classified 	under 	the 	Personnel
Classification 	Plan.
In the instant case, 	the evidence demonstrates 	that the
specifications, 	job descriptions, 	and duty statements 	accurately
reflect 	the 	supervisory nature 	of 	the 	duties 	actually performed
by the SC 	I 	and FSS 	I 	classifications 	at the various work
locations 	for which 	testimony 	or other 	evidence was 	presented.
The 	accuracy of 	the 	class 	specifications 	is 	supported 	in the
record by the testimony 	of 	Bither, 	the 	classification 	section
manager. 	There 	is 	also 	considerable testimony 	from other
witnesses, 	representing nearly all 	of 	the work locations 	in
question, 	concerning the duties 	actually performed by the
incumbents. 	Their testimony 	is 	consistent with 	the 	information
contained 	in the 	job descriptions 	and duty 	statements. 	Thus, 	the
Board 	agent's 	findings 	and 	conclusions 	concerning the 	supervisory
duties 	of the 	SC 	I 	and FSS 	I 	classifications 	at the various work
locations 	are 	adequately 	supported 	by 	the 	record 	and 	adopted 	by
the Board. 	Accordingly, 	the nine 	exceptions 	asserted by CSEA to
those 	findings 	are 	rejected.
With respect to the 	SC 	I positions 	at the Department 	of
Forestry, 	California Highway Patrol, 	and the California Maritime
Academy, 	the Board agent 	also 	correctly concluded there was
insufficient 	evidence 	from which 	to 	infer 	their 	supervisory
status. 	The burden of proving 	an exclusionary 	claim is 	on the
14

party 	asserting the 	claim—in this 	case 	DPA. 	(Unit 	Determination
for the State of California 	(SEERA). 	supra, 	PERB Decision
No. 	110c-S; 	In Re the State Employer-Employee Relations Act,
Phase 	III 	Unit Determination Proceeding 	(1979) 	PERB Order
No. 	Ad-79-S.) 	There were no 	job descriptions 	or duty 	statements
offered 	into 	evidence by 	DPA pertaining 	to 	the 	SC 	I's 	at 	these
three locations. 	In addition, 	no other evidence was 	offered
concerning the 	specific 	job duties 	of 	the positions 	at 	these
locations. 	Accordingly, 	no 	finding can be made with respect to
those positions. 	Moreover, 	while 	job descriptions 	or duty
statements 	describing duties 	performed 	at 	specific 	work 	locations
might constitute 	"some 	evidence" 	of 	their 	supervisory 	status,
they would 	not be 	sufficient 	by 	themselves 	to 	establish 	DPA's
exclusionary claim, 	particularly where 	the positions 	have been
previously placed in the bargaining unit. 	Accordingly, 	the SC 	I
positions 	at the Department of 	Forestry, 	California 	Highway
Patrol, 	and the California Maritime Academy are not 	excluded 	from
the Unit.
We 	also 	conclude that 	the 	Board agent was 	correct 	in 	stating
that 	PERB 	is 	not 	authorized to determine whether the 	supervisory
duties have been lawfully assigned. 	CSEA's 	argument 	is, 	in
effect, 	a request that PERB consider an out-of-class 	claim8 based
88 "Out-of-class 	claim" 	is 	a 	term generally used 	to describe
duties 	performed by 	an employee 	in one 	classification which 	are
outside the 	scope of 	the duties 	for that 	class. 	When 	such duties
are 	normally performed by 	employees 	in 	classes 	paid 	at 	a 	higher
rate. .. , 	the employee may file what 	is 	termed an 	"out-of-class
claim" 	for the difference 	in pay, 	in accord with the Government
Code, 	DPA regulations, 	and provisions of the collective
15

upon the unlawful 	assignment 	of 	certain duties 	outside 	the 	scope
of the SC I 	or FSS 	I.E. ..classifications. 	Clearly, 	the Legislature
left 	consideration of 	such 	claims 	to the 	jurisdiction of 	DPA.
(See Gov. 	Code secs. 	19818.8, 	19818.16.) 	CSEA's argument is,
therefore, rejected.
Finally, 	DPA excepts 	to the 	Board agent's 	finding that
Conservation 	corpsmembers 	are 	civil 	service 	employees 	within 	the
meaning of 	the Dills Act. 	In arriving at this 	conclusion the
Board 	agent 	stated:
The Corps members' 	[sic] 	lack of civil
service 	status 	might 	have 	impaired a 	finding
that the SCI, 	is a supervisor prior to the
Board's recent decision 	[fn. 	omitted] 	[in
State of California 	(DPA) 	(1990) 	PERB
Decision No. 	787-S]. 	Now, however, we must
look upon the Corps members 	[sic] 	as
employees 	and, 	based on the SCI's 	role 	in
transferring, 	demoting and recommending 	for
permanent 	status these Corps members 	[sic],
the 	SCI 	must be 	found to be 	supervisors 	based
on their roles 	in 	controlling personnel 	and
not 	just work processes.
(Proposed Decision, 	p. 	25; 	emphasis added.)
Although 	it 	is 	not entirely clear 	from its 	exception, 	DPA
appears 	to 	except primarily to 	any 	inference, 	based upon the
above finding, 	that corpsmembers have 	[full-merit 	system] 	civil
service 	status. 	DPA cites 	Bush v. 	California Conservation Corps
(1982) 	136 Cal.App.3d 	194 	[185 Cal.Rptr. 	892] 	in support of its
contention that 	corpsmembers 	are 	not public 	employees. 	Quoting
from the decision, 	DPA states:
bargaining agreement, 	if applicable. 	(See Gov. 	Code sec.
19818.16; 	California Code of Regulations, 	title 2, 	Regulation
599.608.)
16

Clearly, 	the Legislature 	never contemplated
the 	elevation of 	corpsmembers 	to 	the 	status
of civil 	service employees; 	employment is
relegated to 	a 	role 	secondary to 	the 	emphasis
on 	training 	and 	education,
fid, 	at p. 	201.)
This citation, 	however, 	is not presented in its 	full
context. 	The corpsmembers 	in Bush. 	supra. 	were challenging their
termination 	from CCC 	for disciplinary reasons. 	The 	corpsmembers
argued that 	they were 	entitled 	to 	the 	full procedural 	due process,
procedures 	promulgated 	in Skelly v. 	State 	Personnel 	Board 	(1975)
15 Cal.3d 	194 	[124 Cal.Rptr. 	14]. 	The CCC argued that
corpsmembers 	were 	not public 	employees 	nor possessed 	any 	other
property 	right 	in 	continued 	employment 	and 	consequently were 	not
entitled to due process protection. 	(Id. 	at p. 	200.) 	It was 	in
this 	context that the court arrived at 	its 	conclusion. 	Thus,
immediately 	following the 	statement 	above, 	the 	court 	also
concluded:
As a consequence, 	plaintiffs have no
statutory property 	interest 	as 	permanent
(nonprobationary) 	public 	employees per Skelly
v. 	State Personnel Bd., 	supra. 	15 Cal.3d 194.
(Ibid.)
Accordingly, 	when the court 	stated 	corpsmembers were not 	"civil
service 	employees," 	it used the term according to 	its 	traditional
meaning referring to 	corpsmembers' 	lack of permanent 	status 	and
selection 	for 	employment 	or promotion by 	competitive 	examination
under 	the 	merit 	system.
Furthermore, 	the court, 	in Bush, 	supra. 	did not address the
- - -
definition 	of 	a 	state 	employee under 	the 	California 	Constitution
nor under section 3513(c) 	of the Dills Act.
17

In 	contrast, 	that 	question was 	squarely 	addressed 	by 	the
Board 	in State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1990) 	PERB Decision No. 	787-S. 	In that decision
the Board noted that 	section 3513(c) 	defines 	a 	state 	employee as:
"any civil 	service employee of the 	state." 	(Id. 	at p. 	2.) 	The
... Board further noted that Article VII, 	section 	l(a) 	of the
California Constitute states: 	"Civil 	service 	includes 	every
officer and 	employee 	of 	the 	state 	except 	as 	otherwise provided 	in
this Constitution" 	(i.e., 	exempt under Article VII, 	section 4 ) .
(Id. 	at pp. 	3, 	11, 	14.) 	The Board concluded that:
[a]11 personnel 	appointments 	other than the
specific 	exempt 	appointments 	are 	therefore
. .part 	of 	the 	civil 	service 	system and have
some form of civil 	service 	status, 	whether it
be seasonal, 	limited term, permanent, 	part-
time, 	or any other type.
(Id. 	at p. 	14; 	emphasis added.)
.
In the 	instant 	case, 	corpsmembers 	are not 	listed under
Article VII, 	section 4, 	as one of the categories of employees
specifically exempt 	from civil 	service. 	Further, 	although their
relationship with the 	State 	is 	unique 	in that 	the primary
objective 	served by 	their 	employment 	is 	for 	education and work
experience opportunities 	(Public Resources Code 	sec. 	14000, 	et
seq.), corpsmember positions are, nonetheless, a "personnel
appointment 	. 	. 	. whether it be seasonal, 	limited term, 	. . . 	or
any other type." 	Accordingly, 	we 	find they are 	state 	civil
service 	(nonmerit 	system) 	employees 	for the purposes 	of 	the
18

Dills Act.9
. .. 	ORDER
Based on the 	foregoing, 	the 	unit modification petitions 	are
GRANTED. 	The positions 	of Supervising Cook I 	in the Departments
of Developmental Services, 	Mental Health, 	Education, 	Veterans
Affairs, 	Rehabilitation, 	and California Conservation Corps 	are
excluded 	from Unit 	15. 	The positions 	of 	Food 	Service 	Supervisor
I 	in the Departments of Developmental Services, 	Mental 	Health,
Education and Veterans Affairs 	are 	also 	excluded 	from Unit 	15.
9The 	Board does 	not 	adopt 	the 	Board 	agent's 	conclusion 	that
"The Corps 	members 	[sic] 	lack of 	civil 	service 	status 	might have
impaired a finding that the SCI, 	is a supervisor 	. 	. 	. 	." 	The
lack of 	actual 	employment 	status 	does 	not preclude 	the 	Board 	from
finding the SC I 	classification is 	supervisory. 	In State of
California, 	Department of Personnel Administration 	(CAUSE) 	(1989)
PERB Decision No. 	72 7-S 	the Board adopted portions 	of 	the
administrative 	law 	judge's 	(ALJ) 	proposed decision which 	found
that 	Park Ranger 	II's were 	supervisors 	even though 	they
supervised Park Aides who 	the ALJ 	stated did not 	meet 	the
"criteria of 	civil 	service employees 	in the hire and retention of
employment." 	(Proposed Decision, 	p. 	24.) 	The ALJ noted the Park
Aides meet all of the normal 	"employee" 	requirements. 	They work
for a 	state 	agency, 	they are paid 	on an hourly basis with 	state
funds, 	they represent the 	state 	in dealing with the public, 	they
work 	established hours 	on 	state 	property 	and are 	responsible 	to 	a
full-time state employee. 	Under such circumstances, 	the ALJ
concluded 	an 	employer-employee 	relationship 	is 	established 	during
the 	time 	they are 	functioning as 	seasonal park aides,
irrespective 	of whether their hiring 	and 	tenure 	rights 	qualifies
them as 	"civil 	service" 	employees.
Thus, 	the Board has 	recognized that 	it 	is 	not necessary that the
individuals 	supervised be 	civil 	service 	employees 	so 	long as
there 	exists 	the 	indicia 	of 	an employer-employee 	relationship.
The application of 	this 	analysis 	to the 	instant case 	is 	moot,
however, 	in light of 	the Board's 	holding 	in State 	of California
(Department of Personnel Administration). 	supra. 	PERB Decision
No. 	787-S.
19

The petitions 	are 	DENIED with regard to 	the 	SC 	I 	positions
at the Department 	of 	Forestry,: ... California 	Highway Patrol 	and
California 	Maritime Academy.
Member 	Shank 	joined 	in this 	Decision.
Chairperson Hesse's 	concurrence begins 	on page 	21.
Member Cunningham's 	concurrence begins 	on page 	26.
20

Hesse, 	Chairperson, 	concurring: 	I concur with Members
Camilli 	and 	Shank's 	findings 	and 	conclusions with one 	exception.
Like Member Cunningham, 	I 	disagree with the requirement 	that when
an 	employer 	or 	exclusive 	representative 	challenges 	a position's
supervisory status, 	"PERB should allow SPB, 	or its designee, 	the
to 	review the 	classification to assure 	that 	the positions 	in
question 	are 	properly 	allocated 	and 	classified 	under 	the
Personnel 	Classification Plan."
Pursuant to 	section 3522.11 of 	the Ralph C. 	Dills Act 	(Dills
Act), 	the Public Employment Relations Board 	(PERB or Board) 	has
the 	authority to determine whether a position 	is 	supervisory.
Section 	3522.1 	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.
The 	language 	in the above 	section allows 	the Board to 	look at 	the
duties 	as well 	as 	the 	job description or title 	in determining
1l At 	the 	time the unfair practice charge was 	filed, 	the
definition of 	"supervisory 	employee" 	appeared 	in 	section 	3522.1
of the Dills Act. 	In 	1990, 	section 3522.1 	of the Dills Act was
renumbered. 	The definition of 	"supervisory employee" 	now appears
in section 3513(g) 	of the Dills Act. 	Except for one minor word
change, 	former section 3522.1 	and section 3513(g) 	are 	identical.
21

whether an employee 	is 	a 	supervisor within the meaning of 	the
Dills Act. 	Generally. . .
, 	if the duties 	are consistent with the 	job
description or title, 	then there 	is 	no problem with the 	Board
considering both the 	actual 	job duties 	and 	job description or
title 	in making 	its 	determination. 	The determination of whether
an employee 	is 	a 	supervisor 	is 	more problematic when the duties
do not match the 	job description or title. 	In all cases, 	the
Board examines the entire record, 	including the duties, 	to
determine whether the position 	should be 	included 	in or 	excluded
from the bargaining unit.
Section 3540.l(m) 	of 	Educational Employment Relations Act
(EERA) is substantially similar to section 3522.1 of the Dills Act. Section 3540.l(m
"Supervisory employee" 	means 	any employee,
regardless of 	job description, 	having
authority 	in the 	interest of 	the 	employer to
hire, transfer, 	suspend, 	lay off, recall,
promote, discharge, assign, reward, or
discipline other employees, 	or the
responsibility 	to 	assign work 	to 	and 	direct
them, 	or to adjust their grievances, 	or
effectively recommend such action, 	if, 	in
connection with the 	foregoing 	functions, 	the
exercise of that authority 	is 	not of 	a merely
routine or clerical nature, 	but requires the
use of 	independent 	judgment.
Cases 	involving 	section 	3540.l(m) 	of 	EERA direct 	the 	Board
to 	look at 	all 	the 	evidence 	in the 	record to determine whether 	an
employee 	is 	a 	supervisor. 	In Sweetwater Union High School
District 	(1976) 	EERB Decision No. 	42 and San Diego Unified School
2Prior to January 1, 	1978, 	PERB was known as the Educational
Employment Relations Board 	(EERB).
22

District 	(1977) 	EERB Decision No. 	8, 	the Board held that the
.(Supervisory criteria 	in 	section 3540.1 (m) 	are to be viewed 	in the
disjunctive. 	Therefore, 	proof that the employee possesses 	any
one of the duties 	listed 	in section 	3540.l(m) 	is 	sufficient 	to
make an employee 	a 	supervisor within the meaning of 	EERA. 	In
Glendale Community College District 	(1979) 	PERB Decision No. 	88,
the 	Board 	stated 	that 	section 	3540.l(m) 	specifically 	abjures
reliance on job titles. 	In that case, 	the Board was 	faced with
determining whether 	certain division 	chairpersons 	were
supervisory 	employees. 	The 	Board 	further noted that 	in prior
cases, 	the Board had 	found 	some personnel with the title 	of
division chairperson to be 	supervisory 	(Los 	Rios 	Community
College District 	(1977) 	EERB Decision No. 	18), 	while others were
not 	supervisory 	(Monterey 	Peninsula 	Community 	College 	District
(1978) 	PERB Decision No. 	76). 	In Cantua Elementary School
District 	(1983) 	PERB Decision No. 	295, 	the Board looked to the
record as 	a whole to determine whether the 	employee was 	a
superviso	. . 	r pursuant to 	section 3540.l(m) 	of EERA.
Finally, 	in 	interpreting 	similar 	language 	in 	section 	3580.3
of 	the Higher Education Employment Relations Act 	(HEERA),3 the
3Section 3580.3 	of HEERA provides, 	in pertinent part:
"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
23

Board's 	determination of 	lack of 	supervisory 	status was 	based
upon the 	totality of 	evidence presented. 	(The California 	State
University 	(1983) 	PERB Decision No. 	351-H.)
As 	it 	is 	apparent 	from these 	cases 	in which the 	Board
interpreted 	similar 	statutory 	language, 	the 	Board 	examines 	all
the 	evidence 	in the 	record 	(including 	classification
specifications, 	job descriptions, 	duty statements, 	title and
actual duties performed) 	to determine whether an employee 	is 	a
supervisor. 	In the present case, 	I 	agree with my colleagues 	that
the classification 	specifications, 	job descriptions 	or duty
statements 	should be 	considered to 	the 	extent 	that 	they may
represent probative 	evidence 	of 	the 	job duties 	being performed by
the employees. 	Further, 	I 	also agree that the mere 	inclusion of
the word 	"supervisor" 	or 	"supervisory" 	in the title,
classification 	specification, 	job description or duty 	statement
is 	not 	sufficient, 	by itself, 	to 	support a finding by the Board
that 	the position 	is 	supervisory.
However, 	I 	strongly disagree with Members Camilli 	and
Shank's 	requirement 	that 	PERB 	allow the 	State 	Personnel 	Board
(SPB) 	the opportunity to review the classification. 	I 	believe
there 	is 	no reason to accord 	such deference to the 	SPB. 	Nor have
Members 	Camilli 	and 	Shank provided 	a 	reason 	for 	their position.
Their opinion cites 	Pacific 	Legal Foundation v. 	Brown 	(1981) 	29
Cal.3d 	168 	[172 Cal.Rptr. 	487] 	(PLF v. 	Brown) 	to support their-
. . . 	foregoing, 	the 	exercise of 	such authority 	is
not of 	a merely routine 	or clerical 	nature,
but requires 	the use of 	independent 	judgment.
24

position that 	PERB 	should 	recognize 	and 	accommodate 	SPB's
Personnel Classification Plan. 	However, 	PLF v. 	Brown is
inapposite. 	In PLF v. 	Brown, 	the court stated:
Because 	no 	actual 	jurisdictional 	conflict
between PERB 	and 	the 	State 	Personnel 	Board
confronts us 	in this proceeding, 	we have no
occasion to 	speculate 	on how 	some
hypothetical 	dispute 	that 	might 	be presented
for decision 	in the 	future 	should properly be
resolved. 	As 	numerous 	authorities 	in other
jurisdictions make clear, 	however, 	any
conflicts which may arise 	in this 	area 	can be
resolved 	either 	by 	administrative
accommodation between the 	two 	agencies
themselves 	[fn. 	omitted] 	or, 	failing that, 	by
sensitive 	application 	of 	evolving 	judicial
principles. 	[Citations.]
(Id, at p. 	200.)
In "the present case, 	there is no conflict. 	Accordingly,
Members 	Camilli 	and 	Shank's 	requirement 	that the parties 	ask SPB
to review the 	classification is 	superfluous. 	Regardless 	of 	SPB's
finding, 	PERB has 	the authority under the Dills Act to determine
whether the position 	is 	supervisory.
25

Cunningham, 	Member, 	concurring: 	I agree that the positions
of 	Supervising Cook I 	(SC 	I) 	and Food Service Supervisor 	I
(FSS 	I ) , 	within the 	state departments 	for which evidence was
presented 	in this 	proceeding, 	should be 	excluded 	from 	Bargaining
Unit 	15 	(Unit 	15) 	on the grounds 	that these classifications 	are
performing 	supervisory 	duties 	within the 	meaning 	of 	section
3522.1 of the Ralph C. 	Dills Act 	(Dills Act).1 However, 	I write
separately 	to present my views 	on one 	issue 	raised by 	the 	facts
of this 	case.
The California State Employees' 	Association 	(CSEA) 	argues
that 	the 	hearing officer 	(HO) 	improperly 	considered all 	the
duties performed by SC 	I's 	and FSS 	I's, 	whether or not 	assigned
lawfully 	and whether or 	not 	such duties 	are properly within 	the
state 	job description/specification. 	The Department 	of 	Personnel
Administration 	(DPA) 	argues 	in contrast that the HO does 	not have
the 	authority 	to 	rule on CSEA's 	claim that 	SC 	I's 	and 	FSS 	I's 	are
performing duties which were unlawfully assigned to 	them. 	Also,
DPA asserts 	there 	is 	no 	indication that 	the HO did not 	consider
the 	specifications 	and duty 	statements 	of 	these 	classifications,
and 	that 	the 	specifications 	allow all 	supervisory duties 	which
are performed.
We 	are 	guided 	in our 	inquiry as 	to 	the proper role of 	State
Personnel Board 	(SPB) 	classifications, 	specifications 	and duty
statements 	in unit 	modification procedures 	by the 	language of
section 3522.1. 	The scope of 	section 3522.1 	is 	clear; 	it 	states:
1see footnote 	1 	of the majority opinion.
26

"Supervisory employee" 	means 	any 	individual,
regardless 	of 	the 	nob 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. 	[Emphasis 	added.]
The 	language 	quoted above 	focuses 	on actual 	responsibilities
carried out by employees 	in their day-to-day work. 	The 	statutory
requirement that 	completion of 	the 	enumerated 	tasks 	involve 	the
use of 	independent 	judgment 	supports 	the 	conclusion that 	evidence
as 	to 	actual duties 	performed 	constitutes 	the primary
consideration 	in this proceeding. 	(See 	Unit Determination 	for
the State of California 	(1980) 	PERB Decision No. 	ll0c-S 	(Unit
Determination).) 	Stated 	simply, 	the relevant 	inquiry herein is
whethe
1r 	SC 	I's 	and 	FSS 	I's 	are 	actually performing 	supervisory
responsibilities 	on a regular basis. 	Unit modification cases
interpreting 	similar 	statutory 	language 	under 	the 	Educational
Employment 	Relations Act have 	reached this 	same 	conclusion. 	(See
Antioch Unified School District 	(1984) 	PERB Decision No. 	415.)
Additionally, 	although CSEA's 	claim that 	the 	SC 	I's 	and FSS 	I's
are being worked out of 	class 	is 	relevant 	to the duties 	actually
performed, 	insofar as 	evidence may be presented to 	show that
duties performed are 	not those 	of 	the 	specification or duty
statement, 	the Board and the HO have no 	jurisdiction under the
27

Dills Act 	to remedy any out-of-class 	claim. 	Such a 	claim is
properly within the 	jurisdiction of 	SPB, 	as 	administered by 	DPA.
(Gov. 	Code, 	secs. 	19818 	et seq.)
The 	above 	quoted 	statutory 	language 	of 	section 	3522.1
clearly 	forecloses 	the 	Board 	from 	looking 	solely 	to 	job
descriptions 	in making 	the 	determination 	that 	supervisory duties
are 	being performed. 	This 	statute would 	also 	logically 	apply 	to
job 	specifications 	as 	created by 	SPB 	and 	administered by 	DPA.
However, 	the 	language of 	section 3522.1 	does not appear to
foreclose 	the 	Board 	from reviewing 	job descriptions 	to 	the 	extent
that 	they represent probative 	evidence 	of 	the duties 	that 	are
actually being performed by 	the 	subject 	classifications. 	This
evidence would, 	of course, 	be considered in conjunction with the
factors 	inherent 	in 	supervisory duties 	which are 	discussed 	in
Unit 	Determination. 	My 	concurring 	colleagues 	acknowledge 	this
proposition, 	and I agree.
Next, 	however, 	my colleagues state:
In such instances, 	however, 	PERB 	should allow
SPB, 	or its designee, 	the opportunity to
review the 	classification 	to 	assure 	that 	the
positions 	in question are properly 	allocated
and 	classified 	under 	the 	Personnel
Classification 	Plan.
(Majority opn., pp. 	13-14.)
Initially, 	I 	fail to 	see any 	statutory mandate 	in the Dills
Act 	that 	this 	requirement be 	satisfied prior to bringing a
petition for unit modification. 	However, 	my colleagues 	appear
to 	advance 	another basis 	for this 	new requirement.
28

Apparently, 	my colleagues would 	impose 	this 	requirement 	on
parties 	bringing 	unit 	modification petitions 	based 	on 	language
contained in Pacific Legal Foundation v. 	Brown 	(1981) 	29 Cal.3d
168 	[172 Cal.Rptr. 	487] 	(PLF v. 	Brown). 	In PLF v. 	Brown. 	the
California 	Supreme 	Court 	rejected 	a 	challenge 	that 	the 	Dills 	Act
was 	facially 	unconstitutional 	based 	on 	conflict with 	the 	civil
service 	system of 	the California Constitution. 	Regarding 	the
possibility 	of 	a 	conflict with 	the 	Constitution 	in the
application of the Dills Act 	in a 	specific 	fact 	situation, 	the
court 	stated 	that 	resolution of 	such 	a 	conflict 	could 	occur
through 	accommodation among 	SPB 	and PERB 	or 	through 	the
"sensitive application of 	evolving 	judicial principles." 	(Id.
.. .
at p. 	200.) 	Thus, 	in the present case, 	the question is whether
there 	is 	a 	conflict with the 	constitutional mandate 	for
administration of 	the civil 	service 	system by 	SPB 	if 	this 	Board
initially 	looks 	to 	actual 	duties performed, 	demonstrated by duty
statements 	and witness 	testimony, 	as 	required by 	section 	3522.1,
rather than 	forbearing 	from doing 	so until 	SPB 	or DPA, 	its
designee, 	reaffirms 	its belief that the positions 	at 	issue are
accurately 	classified.
Under Government Code 	section 	18800 	et 	seq., 	SPB has 	the
responsibility 	to 	create 	and 	adjust 	classes 	of positions 	in
the 	state 	civil 	service 	system. 	Government Code 	section 	18802
specifically establishes 	SPB's prerogative 	to divide, 	add or
alter existing classes. 	This 	section also 	states 	that SPB
29

shall 	consider recommendations 	by DPA in 	so altering classes.
Finally, 	testimony 	in the 	hearing 	on this 	matter 	indicated
that 	DPA 	is 	vested by 	SPB with 	the 	authority to 	review existing
classifications 	for accuracy, 	as well as 	to determine if an
employee 	is performing duties 	outside his 	or her 	classification.
(See Lund v. 	California State Employees Association 	(1990) 	222
Cal.App.3d 	174, 	188 	[271 Cal.Rptr. 	425] 	cited in the lead opinion
at p, 	10, 	fn. 	6.)
What 	this portion of 	the Government 	Code 	does 	not 	contain
is 	a definition of 	supervisor 	for purposes 	of 	the 	classification
system which SPB is to govern. 	Nancy Bither 	(Bither), 	in her
testimony, 	stated that, 	to her knowledge, 	there was no written
definition of 	supervisor, 	as 	that term is 	used 	in SPB
specifications. 	She 	further 	stated 	she would 	judge 	supervisory
status 	for purposes 	of 	the 	classification 	system on a 	case by
case basis. 	Because SPB does 	not utilize a 	constitutionally
or 	legislatively 	imposed 	definition 	of 	supervisor within 	its
classification system, 	I 	fail 	to 	see any real or potential
conflict with the 	administration of 	the 	civil 	service 	system 	if
this 	Board 	fulfills 	its 	statutory mandate to 	judge 	supervisory
status 	according to the provisions 	of 	section 	3522.1. 	Most
importantly, 	my 	concurring 	colleagues 	are unable 	to 	enunciate
any 	such 	conflict.
Based on the 	lack of 	a definition of 	the 	term 	supervisor,
as 	employed by SPB, 	and the 	failure of my colleagues 	to 	enunciate
any conflict with the constitutional mandate of SPB, 	I 	see no
30

legal 	or practical 	basis 	for requiring 	some 	sort 	of preliminary
showing 	that a petitioning party 	in a 	unit modification has
sought 	SPB's 	or DPA's 	reaffirmation of 	the 	correctness 	of 	a
position's 	classification within the 	civil 	service 	system. 	The
classification 	system and 	the 	collective 	bargaining 	apparatus
created by 	the 	Dills Act have 	acted 	independently 	since 	the 	Dills
Act's 	inception. 	Absent a conflict with 	some 	function of 	SPB,
the rule requiring 	accommodation and harmonizing, 	expressed 	in
PLF v. 	Brown, 	does 	not apply.2 If no actual conflict 	exists,
there is 	no need to 	enmesh the two 	systems. 	Regarding the
subject 	specifications, 	I 	further see no conflict by looking
primarily to actual duties performed, 	as 	has been the practice
of 	this 	Board 	since 	Unit 	Determination. 3
Finally, 	although my colleagues 	enunciate what appears 	to
be 	a 	new evidentiary 	showing of 	some 	sort 	to be utilized 	in unit
modification procedures, 	there is 	a noticeable 	failure to
properly define the parameters 	of this 	new showing. 	I 	find this
22My concurring colleagues 	assert 	that 	conflict 	is 	not
required before 	PERB 	should 	act 	to 	harmonize 	its 	functions 	with
those of SPB. 	(Majority Opn., 	p. 	12, 	fn. 	7.) 	There is no
support for this proposition in PLF v. 	Brown. 	Nevertheless, 	my
colleagues 	fail 	to 	explain why 	such accommodation 	is 	either
required or advisable 	in the 	absence of 	a 	conflict.
3There is no conflict inherent 	in the fact that, 	by
looking at 	actual duties 	performed, 	an employee 	could be deemed
a 	supervisor 	for 	collective bargaining purposes, 	but 	not viewed
as 	a 	supervisor by the classification 	system. 	The purpose 	of
each 	system of 	laws 	is 	different 	and 	each 	serves 	varying goals.
Similar variations 	occur 	in other areas 	of 	employment 	law.
One 	example 	is 	found 	in the 	treatment 	of volunteers 	under the
Education Code. 	Volunteers 	are deemed not to be employees 	of
school 	districts 	for any purposes 	except 	insurance 	coverage
and workers' 	compensation issues. 	(See Ed. 	Code, 	sec. 	35021.)
31

lack of 	clarity to be very troubling. 	In the present proceeding,
my 	colleagues 	indicate 	that 	this 	showing 	is 	satisfied because 	DPA
presented testimony from Bither, 	one of 	its 	own employees, 	which
indicated 	that 	these positions 	are 	"accurately" 	classified.
However, 	no guidance 	is 	offered as 	to proper procedures 	to meet
this 	showing 	in cases where the moving party is 	not 	the 	employer.
However, 	I 	agree that the remaining exceptions brought by
CSEA lack merit and that all positions 	of 	SC 	I 	and FSS 	I 	at the
subject 	departments 	where 	evidence was 	presented must 	be 	excluded
from the unit 	as 	supervisory, 	based on the 	testimony presented 	as
to the 	actual 	duties 	performed by persons 	in these positions.
Also,DPA's 	assertion that 	corpsmembers 	are 	not 	civil
service 	employees 	for purposes 	of 	the 	Dills Act 	lacks 	merit 	for
the reasons 	stated 	in the 	opinion of 	my 	colleagues.
On the 	facts presented before us, 	I 	concur that the 	SC 	I's
in the Departments of Education, 	Developmental Services, 	Mental
Health, 	Veterans Affairs, 	Rehabilitation and Conservation Corps
and the FSS 	I's 	in the Departments 	of 	Education, 	Developmental
Services, 	Mental Health, 	and Veterans Affairs 	should be excluded
from Unit 	15 	based on the 	evidence 	that 	these positions 	are
performing 	supervisory duties 	within the 	meaning 	of 	section
3522.1. 	Finally, 	I 	further concur that the SC 	I's 	at the
Department 	of 	Forestry, 	California 	Highway Patrol 	and the
California Maritime Academy must remain in Unit 	15 	because 	DPA
failed to present 	evidence 	as 	to 	the 	actual 	duties 	being
performed by the persons 	in these positions.
32

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
STATE OF CALIFORNIA, 	DEPARTMENT OF
PERSONNEL 	ADMINISTRATION,
Employer,
and
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Exclusive Representative.
Representation
Case Nos. 	S-UM-380-S
S-UM-383-S
(S-SR-15)
PROPOSED 	DECISION
(02/02/90)
)
)
)
Appearances: 	Bruce Notareus 	and Joan Branin for State of
California, 	Department of Personnel Administration; 	Howard
Schwartz 	and Virginia 	Guadiana 	for California 	State 	Employees
Association.
Before: 	Roger Smith, 	Hearing Officer
PROCEDURAL 	HISTORY
On March 30, 	1987, 	the State of California, 	Department of
Personnel Administration 	(hereafter DPA or Employer), 	filed two
unit 	modification petitions 	with 	the 	Public 	Employment 	Relations
Board 	(PERB or Board) 	pursuant to regulation 32781(b)(5).1 The
1The regulation 	in effect 	at the 	time of the 	filing provided
in part:
(b) 	A recognized or certified employee
organization, 	an employer or both jointly may
file with 	the 	regional 	office 	a petition 	for
unit 	modification:
(5) 	To delete classification(s) 	or
position(s) 	not 	subject to 	(1)
above which are not appropriate to
the unit because 	said
classification(s) 	or position(s)
are management, 	supervisory,
confidential, 	or not covered by
EERA, HEERA or SEERA provided that:
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
)
)
)
)
)
}
)
)
)
}
_______________ )

petitions 	seek to 	have 	the positions 	of 	Supervising Cook 	I
(hereafter SCI) 	and Food 	Service 	Supervisor 	I 	(hereafter FSSI)
deemed 	supervisory 	employees 	within 	the 	meaning 	of 	section 	3522.1
of 	the 	Dills Act,2 and thus 	removed 	from Bargaining Unit 	15 which
(A) 	The petition is 	filed
jointly by 	the 	employer 	and
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 	as
defined 	in these 	regulations 	in
section 33020.
This 	regulation was 	renumbered 	(as 	32781(b)(4)) 	effective 	January
1, 	1989, 	but no change was made in its 	substantive provisions.
2 The 	Dills 	Act 	is 	codified 	at Government Code 	section 	3512
et 	seq. 	Section 	3522.1 	defines 	supervisory 	employee 	as:
. 	. 	. 	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
judgement. 	Employees whose duties
are 	substantially 	similar 	to 	those
of 	their 	subordinates 	shall 	not be
considered 	to 	be 	supervisory
employees.
N2

is 	currently 	represented 	by 	California 	State 	Employees
Association 	(hereafter CSEA or Union.)3
The 	SCI 	and FSSI 	classifications 	were placed 	in the 	unit by
the 	Board 	in the 	initial 	creation of 	the 	State bargaining units.
(See Unit Determination for the 	State of California 	(1979) 	PERB
Decision No. 	110-S.) 	DPA requested 	further review of 	certain
exclusionary 	issues 	including the 	status 	of 	SCI 	and FSSI 	as
supervisors, 	and 	in Unit Determination for the State of
California 	(1980) 	PERB Decision No. 	ll0c-S, 	the Board
specifically 	included both positions 	in Unit 	15. 	These positions
have 	remained 	in the unit 	through the 	instant 	filing.
After 	several 	attempts 	to resolve 	the dispute 	as 	to 	the
designation of 	the 	SCI 	and FSSI 	proved unsuccessful, 	a hearing
was 	conducted. 	The 	formal 	hearing 	in this 	matter was 	held 	on
November 15, 	16 and 18, 	1988, February 6, 	7, 	8, 	9, 	10 and 14,
1989, 	and concluded on March 	17, 	1989. 	The parties briefed their
respective positions and on June 	12, 	1989, 	the case was 	submitted
for decision.
At the hearing and through 	its 	brief, 	CSEA argued that 	the
Employer 	had 	unlawfully 	assigned duties 	not 	specifically
enumerated in each employee's 	duties 	statement. 	It 	is 	my role to
consider 	the duties 	actually performed 	by 	SCIs 	and 	FSSIs
regardless 	of job description 	and 	determine whether 	they 	meet 	the
3CSEA was 	certified 	as 	the 	exclusive 	representative 	for
Unit 	15 on July 	10, 	1981, 	and was a party with DPA to a written
agreement in effect July 	1, 	1985 through June 30, 	1987.
3

definition of 	supervisory 	employee.4 It 	is 	not my 	role 	to
determine whether 	the duties 	have 	been assigned 	lawfully 	or 	not.
ISSUE
1. 	Should the 	SCI 	and FSSI 	classifications be deemed
supervisory 	and 	thus 	removed 	from Unit 	15?
FINDINGS 	OF 	FACT
There were 	65 	SCIs 	employed at the time of the hearing: 	18
were 	employed by the Department of 	Developmental 	Services, 	16 	by
Mental Health, 	16 by Conservation Corps, 	7 by Education, 	3 by
Veterans Affairs, 	2 by the Highway Patrol, 	1 by Forestry, 	1 by
Rehabilitation and 	1 	by the Maritime Academy. 	Fifty 	four 	(54)
FSSIs 	were 	employed at the 	time 	of 	the hearing: 	Developmental
Services 	employed 25, 	Mental Health 21, 	Veterans Affairs 	4 and
Education 	4. 	There was 	testimony which related to 	the
assignments 	of 	these positions 	in all departments 	but 	Forestry,
Highway 	Patrol 	and 	the Maritime Academy.
The 	testimony 	of witnesses 	called by 	the parties
demonstrated 	contradictory views 	of 	the 	assignments 	of 	FSSIs 	and
SCIs, 	much as 	the Board had already reviewed 	in Unit
Determination for the State of California, 	supra, 	PERB Decision
No. 	ll0c-S. 	The 	Board dealt with a 	review of the duties 	of 	these
two 	classification 	in two pages. 	The 	testimony and argument
elicited 	through 	this 	proceeding produced well 	over 	two 	thousand
pages 	with 	results 	which 	can be 	similarly 	summarized.
4See 	footnote 	2 	above. 	See also, 	San Rafael City Schools
(1977) EERB Decision No. 	32, 	at p. 	7.
44

Supervising 	Cook 	I
Department 	of 	Rehabilitation
The one SCI, 	Betty Hightower, 	oversees 	five full-time
employees 	and 	one part-time 	employee 	at 	the 	Orientation Center
for 	the 	Blind. 	Work 	schedules 	are well 	established and 	routine
but 	for accommodations made 	for absences. 	The 	SCI 	has 	the
responsibility 	and 	authority 	to 	assure 	complete 	coverage 	for 	the
preparation, 	serving and clean-up of meals 	at the Center.
Hightower had 	an active 	role 	in recommending 	for hire 	a 	Cook 	II
and 	has 	completed probationary 	reports 	and performance
evaluations 	for other employees.
The SCI 	estimates that approximately 2 5% 	of her time 	is
spent 	in 	the 	kitchen actually 	involved 	in the preparation of
breakfast or 	lunch meals. 	The remainder of her time 	is 	spent
processing 	food and 	supply orders, 	overseeing the work of 	other
employees, 	and generally 	administering the 	functioning of 	the
kitchen and 	food 	serving 	areas 	of 	the Center.
Veterans 	Affairs
The 	SCIs 	oversee 	approximately 	twelve 	employees 	per 	shift 	at
the Veterans 	Home 	in Yountville. 	Work schedules 	are regular and
only need adjustment 	for absences. 	The 	SCI 	has 	authority to
approve 	sick leave, 	vacation or overtime. 	Assignment 	schedules
are prepared by 	SCIs 	two days 	in advance. 	Cooks 	and Food 	Service
Workers 	(FSW) 	are given different assignments to break up the
monotony of 	the work and to 	keep 	them 	fresh 	in their 	jobs.
5

A SCI 	has 	effectively recommended the dismissals 	of 	at 	least
four 	employees 	due 	to 	absenteeism 	and/or poor work performance.
SCIs 	are 	responsible 	for 	completing performance 	evaluations 	and
probationary 	reports 	which 	are 	effectively 	acted 	upon by
management. 	SCIs 	also participate 	in panel 	interviews 	for
promotion 	and 	recruitment with 	an 	equal 	voice 	in recommendation.
SCIs 	spend a 	small portion of 	their time actually 	involved
in the preparation, 	storage or 	shipment of 	food. 	Most of 	their
time 	is 	spent 	assuring quality 	control 	of 	food preparation,
ordering 	supplies, 	preparing 	schedules 	and overseeing their 	shift
of employees.
Education
The 	Department 	of 	Education maintains 	six 	schools 	at which
food 	services 	are provided. 	The California 	Schools 	for the 	Deaf
in 	Riverside 	and 	Fremont 	are 	larger 	facilities 	with 	student
capacities 	of 	over 	500. 	Each of 	these 	schools has 	a kitchen with
two 	SCIs, 	each working on a different 	shift.
The 	California 	School 	for 	the 	Blind 	in Fremont with 	just
over 	100 	students 	has 	one SCI. 	Three diagnostic 	centers 	in San
Francisco, 	Fresno and Los Angeles 	each have one SCI 	on 	staff.
Each of 	the 	schools 	for the Deaf used to employ a
Supervising Cook 	II 	but 	those positions were downgraded to 	SCI.
The 	downgrading was 	completed as 	the 	result 	of 	a 	1981 	study 	to
determine what 	improvements, 	if any, 	were needed in the 	food
services 	arrangement area at the 	six 	schools. 	Since 	1982-1983 	no
SCIIs 	have been employed at 	any of 	the 	six 	schools.
6

Exhaustive 	testimony 	and 	documentary 	evidence 	indicates 	that
SCIs 	effectively 	recommend 	for hiring, 	promotion and probationary
status, 	Cooks 	I 	and II and Food Services Workers. 	SCIs 	approve
overtime, 	CTO, 	and sick leave usage; 	monitor time sheets; 	conduct
employee 	orientation and 	training; 	organize and 	call 	staff
meetings; 	and monitor and occasionally assist in the preparation
of meals. 	Recommendations 	of 	SCIs 	relating to employee
counseling 	and 	discipline 	are 	substantially 	followed 	although
occasional written memos 	are altered 	for 	style 	or tone. 	The
amount 	of 	time 	spent 	in 	"hands-on" 	food preparation varies 	from
site 	to 	site 	and 	is 	largely a matter of 	individual 	style 	and
personality. 	The differences 	in 	style 	are well 	evidenced by 	the
testimony 	of 	Gloria 	Lee 	Cody 	and Faye 	Randolph.
Ms. 	Cody, 	a SCI 	at the School 	for the Blind, 	and a witness
called by 	DPA, 	evidenced her method 	of 	correcting 	and/or pointing
out problems 	to employees 	in her charge, 	through counseling
session memos.5 Ms. 	Randolph, 	a witness 	for CSEA and a SCI 	at
the 	School 	for the 	Deaf, 	indicated her method 	for dealing with
on-the-job problems 	with 	the 	employees 	assigned 	to her 	kitchen
was 	through 	informal meetings 	at 	the 	end of 	the workday. 	Th	6 	e
methods 	of 	the two 	SCIs 	differ but 	their reasons 	for meeting with
employees 	to review work progress 	is 	the 	same: 	to correct
mistakes, 	improve work performance and guarantee a 	safe and
healthy 	environment.
: . . . . ;
5TR Vol. 	V, 	pp. 	53-54 and Employer exhibits 	66 A, 	B 	C.
6TR Vol. 	IX, 	pp. 	31-32.
77

Developmental 	Services 	and Mental 	Health
An 	Interagency 	agreement 	between 	these 	two 	departments
creates 	a 	functional 	administration 	and 	supervision of 	both 	food
services programs by Ms. 	Lucille Peterson. 	Ms. 	Peterson is
employed 	as 	the 	departmental 	food 	administrator 	and has 	been 	in
her position 	for twelve years. 	Her testimony and the 	testimony
of 	SCIs who work 	for 	each department 	reflect a 	similar
description of duties 	for the 	SCIs. 	There are 	seven
developmental 	centers/state hospitals where 	SCIs work. 	At 	each
facility 	there 	are 	approximately three 	SCIs, 	each working 	either
an a.m. 	assignment, 	p.m. 	assignment or a weekend and relief
assignment. 	The SCIs 	report to a SCII who works mid-shift,
Monday - 	Friday. 	Approximately 	10 	to 	15 production cooks 	and
food 	service workers 	report 	to the 	SCI 	on any given 	shift. 	The
SCII 	does 	not have hands-on 	supervision of meals. 	That
responsibility 	lies 	with 	the 	Cook 	Is 	or 	IIs. 	Each 	facility 	has 	a
central 	kitchen which 	services 	and prepares 	food 	for 	the 	clients
for 	the 	entire 	center/hospital 	and 	several 	have 	satellite
kitchens.
Again, 	there 	is 	conflicting testimony regarding the 	amount
of 	time 	actually 	spent by 	SCIs 	overseeing 	the 	food production
workers 	versus 	actual 	involvement 	in food production. 	SCIs
expend 	substantial time 	completing time 	sheets, 	reviewing
assignments, 	attempting to 	locate 	substitutes 	for employees who
are 	absent 	and processing work orders 	for daily 	menu preparation.
88

SCIs vary 	in their roles 	as 	disciplinary agents. 	Michael
Hedgpeth, 	a SCI 	at Lanterman Developmental Center, 	testified on
behalf 	of 	CSEA that he did 	not 	concur with 	all 	the 	disciplinary
decisions 	made by the management of Developmental 	Services, 	but
indeed 	instigated action on his 	own, 	to 	improve 	employee work
habits. 	He 	further conceded that as a SCI, 	he had effectively
made 	recommendations 	that 	an 	employee 	be 	rejected prior 	to
passing 	probation.
Conservation 	Corps
There 	are 	16 	SCIs working 	for the California Conservation
Corps 	(CCC or Corps). 	Each is 	in charge of a kitchen at one of
17 	centers 	throughout California. 	Each center may have 	satellite
centers 	at which, 	if there 	is 	a 	functioning kitchen being
operated, 	it is run either by Corps members, 	or a Cook CCC. 	Each
center has 	an area manager, 	who acts 	as 	the 	site administrator,
and 	either a Business 	Services Officer 	(BSO) 	or Business 	Services
Assistant 	(BSA), 	as an administrative assistant, 	and a SCI 	as
kitchen 	supervisor. 	A Cook CCC may also be 	assigned 	each 	center.
The 	number of Corps 	members 	at 	each 	center varies 	depending 	on
the 	season and nature of assignments, 	but runs 	at approximately
100.
Corps 	members 	may 	serve 	as 	cook specialists 	or on KP duty as
part of 	their assignment. 	Corps 	members 	are non-civil 	service
employees 	who 	are 	on one 	year 	training 	and 	educational 	contracts
99

,7
with 	CCC. 	Corps 	members 	can be 	and have 	been promoted 	into
civil 	service positions 	including, Cook CCC. 	The Cook CCC
position 	is 	used at various 	centers 	as 	an assistant 	kitchen
manager. 	Often times 	the Cook CCC works 	an 	independent 	schedule
from the 	SCI 	in order to provide 	shift relief 	and 	cover vacation,
holiday and other absence periods 	for the SCI. 	In the absence of
the SCI 	the Cook CCC 	is 	the kitchen's 	on-site manager, 	subject to
the review of 	either the BSO, 	BSA or area manager. 	The official
duties 	statements 	of Cook CCC, 	SCI 	Siskiyou and Cook are 	nearly
identical. 	The 	testimony 	elicited by DPA witnesses 	confirms 	the
duties 	assigned 	Cook CCC 	and 	SCI 	are 	substantially 	the 	same 	but
for the 	role of 	SCI 	in serving on interview panels, 	and
completing yearly 	evaluations 	and monthly 	time 	sheets.
The 	SCI 	is 	responsible 	for ordering and 	storing 	food
supplies, 	preparing meals, 	maintaining a 	safe and clean work
environment, 	and 	serving nutritious 	meals 	to the 	staff 	assigned
the 	center. 	SCIs do prepare meals 	and 	set menus 	as part of 	their
regular duties. 	CCC SCIs, 	unlike those in other departments,
spend 	a 	greater portion of 	the day 	in hands-on 	food preparation.
Food 	Services 	Supervisor 	I
Developmental 	Services 	and 	Mental 	Health
The 	46 	FSSIs 	assigned 	these 	two departments 	use 	the 	lion's
share of 	the FSSI 	classifications 	statewide. 	Again, 	these two
7At 	the time of the hearing, 	the 	employee 	status 	of Corps
member was 	not at 	issue. 	In light of the recent decision in
State of California 	(1990) 	PERB Decision No. 	787-S, 	Corps members
are 	treated 	for purposes 	of 	this 	decision as 	employees within the
meaning of 	the Dills Act.
10

departments 	operate 	their 	food 	services 	through 	an 	interagency
agreement.
The principal duties 	of 	a FSSI 	are 	to 	schedule and maintain
adequate personnel 	for daily 	cafeteria 	food 	service, 	assuring
quality 	and 	quantity 	control 	of 	food portions 	in the 	cafeteria,
assuring 	special dietary needs 	of 	clients 	are met, 	maintaining a
safe 	and 	sanitary 	serving 	and dining 	area 	and monitoring 	the
functioning 	of 	serving 	staff 	assigned 	to 	a particular work 	area.
In addition, 	attending and calling 	staff meetings, 	completing
personnel 	forms 	and providing 	staff 	training take up 	a portion of
the FSSI's 	day.
Meals 	are prepared at 	the 	center's 	and hospital's 	kitchens,
and 	shipped 	to 	serving 	cafeterias 	throughout 	various 	buildings
and 	floors 	on the grounds. 	FSSIs 	must guarantee 	that 	food has
arrived 	and 	is 	ready 	to be 	served 	according 	to 	a very 	strict
schedule. 	In order to guarantee 	adequate 	staffing 	for the
service 	of meals, 	FSSIs 	create and maintain work schedules 	to
assure 	sufficient 	staff 	coverage 	for all meal times. 	FSSIs 	have
used 	their authority to 	call 	for 	substitute help 	if 	a 	FSWI 	or
FSWII 	is 	absent unexpectedly.
Between roughly 	12-20 	FSWIs 	and IIs work under 	the 	direction
of 	the FSSI. 	The FSSIs 	cover various 	shift 	changes 	needed to
provide 	3 	meals per day 	7 days per week. 	The FSSIs 	report to a
FSSII who works 	a 	straight 	8:00 	a.m. 	- 	5:00 p.m. 	shift, 	Monday 	-
Friday. 	The FSSII 	reports 	to a director of dietetics who 	is 	the
on-site 	food 	services 	manager 	at 	each 	center-hospital.
11

The FSSI 	approves monthly time 	sheets 	for FSWs 	assigned
their 	shift. 	Merit Salary Adjustments 	(MSAs) 	are 	completed by
the FSSIs 	for employees on their shift. 	In addition, 	FSWs'
probationary 	reports 	and 	annual 	evaluations 	are 	reviewed 	and
prepared by the 	FSSIs 	on their 	shifts. 	FSSIs 	have 	effectively
recommended 	that 	employees 	not 	be passed while 	on probationary
status.
Veterans 	Affairs
The 	four 	FSSIs 	assigned 	to 	the veterans 	home work at 	three
different work 	sites. 	Two work in the hospital 	kitchen where
food 	trays 	are prepared 	in an 	assembly 	line 	style 	for 	shipment
throughout the 	13 wards of the hospital. 	One works in the main
dining room 	cafeteria 	and 	the 	other FSSI 	works 	at 	an annex within
a 	ten minute walk of 	the hospital. 	They report to one of 	two
FSSIIs who 	in turn report 	to 	an assistant director of 	dietetics.
The 	assembly 	line 	food 	tray preparation 	in 	the 	hospital
employs 	seven or eight Food Service Workers. 	As part of 	the
FSSIs' 	duties, 	they act as 	inspectors 	of the quantity and quality
of portions 	served. 	Based on their 	evaluations 	of 	the work
performed by 	the 	FSWIs 	and IIs, the 	FSSIs 	complete probationary
reports, 	merit salary adjustment reviews, 	annual performance
evaluations 	and disciplinary notices 	if 	needed. 	The FSSI 	is
responsible 	for 	creating 	and 	maintaining work 	schedules 	to 	insure
FSWIs 	and IIs cover the 	seven-day, 	three-meals-per-day 	food
service to the hundreds 	of patients 	at the 	facility.
12

Complaints 	by 	nursing 	staff, 	medical 	staff 	and patients
relating to timeliness, 	temperature, 	portions or quality of 	food
are handled by FSSIs. 	Only 	if problems 	are not resolved at 	this
stage would a FSSII, 	or the director or assistant director of
dietetics 	be 	contacted. 	FSSIIs 	have no day-to-day 	contact with
the 	FSWIs 	and IIs as 	it 	relates 	to 	the 	assignment 	of duties 	or
problems 	on the 	job. 	FSSIs 	are 	given broad authority to 	resolve
problems with staffing, 	assignments, 	and complaints.
FSSIs 	also 	serve 	on 	screening 	committees 	for hiring 	and
promotional 	exams. 	Their role 	is 	that as 	an equal participant
with two 	other employees, 	generally a FSSII 	and the director or
assistant director of dietetics. 	The testimony of 	Inez
Crouse, 	a FSSI, 	indicates that decisions on hiring were made by
consensus 	with her 	role being no more 	or 	less 	influential 	than
that of 	two 	other panel 	members 	in the 	interview and hiring
process. 	Ms. 	Crouse advised that 	she had effectively recommended
the promotion of 	at 	least 	one 	employee 	and had been 	asked 	for her
opinions 	and advice 	on others.
Education
As 	a 	result 	of 	the 	aforementioned 	reclassification 	study 	in
the department 	conducted 	in 	1981-1982, 	the department 	created
FSSI positions 	at the two 	larger schools; 	the 	schools 	for the
deaf 	in Fremont and Riverside. 	Eac8 h 	school 	employs 	two FSSIs.
Each FSSI 	works 	a 	separate 	shift 	in the 	5-day 	school week. 	They
report to a director of dietetics. 	The FSSI works with between
88 See pp. 	6 - 7 	relating 	to 	SCI 	in 	Education.
13

11-15 	FSWs 	in the presentation, 	serving and clean-up ,of meals 	at
the schools.
Christine Gonzales, 	a FSSI at the Fremont school, 	estimated
that between 75-80% 	of her workday 	is 	spent overseeing and
supervising the FSWs on her shift. 	In this 	time, 	she assigns
duties, 	makes schedules, 	orders supplies, 	maintains order in the
cafeteria 	and 	food 	serving areas, 	approves 	leave requests 	and
CTO, 	participates 	in interviewing FSW candidates, 	reports 	time
keeping problems 	to her personnel 	office, 	and completes 	necessary
personnel 	forms. 	She estimates 	that approximately 	20-30% 	of her
day 	is 	relief 	help 	in the 	food 	serving and cleanup 	area.
The 	FSWs 	have 	no other daily 	contact with 	supervisors 	or
managers 	but when the director of dietetics 	may visit. 	FSSIs 	are
responsible 	for assuring meals 	are 	ready 	to be 	served 	in a
timely, 	clean and orderly manner. 	FSSIs 	respond to 	initial
complaints 	or grievances which FSWs 	or 	students 	may raise. 	In
the absence of the FSSI, 	the SCI may act as 	a 	supervisor 	in
assuring 	food 	is 	served properly by 	the 	FSW.
DISCUSSION
The 	Board, 	in its 	initial 	consideration of 	supervisory
exclusions 	under the 	Dills 	Act,9 approved 	a disjunctive
interpretation of the language of 	section 3522.1; 	that is, 	an
employee 	found to meet even one 	of 	the 	criteria 	for exclusion
would be held to be 	exercising 	supervisory duties. 	The 	Board
9Unit Determination for the State of California, 	supra. 	PERB
Decision No. 	ll0c-S.
14

also 	considered, 	however, 	the 	necessary 	interrelationship of 	the
disjunctive 	interpretation with 	the 	statutory directive 	that
employees 	"whose duties 	are 	substantially 	similar to 	those 	of
their 	subordinates 	shall 	not 	be 	considered to be 	supervisory
employees." 	(Emphasis added.) 	The Board reasoned that 	its
"burden" 	was 	the determination of an employee's 	status 	"where the
evidence 	indicates 	that 	that 	employee performs 	one 	or more
supervisory duties 	with 	some 	regularity but 	also performs 	duties
of 	his/her 	subordinates."10 The 	Board 	determined 	to 	meet 	its
"burden" 	by 	first holding that an employee must be 	engaged 	in the
"regular and 	continuous performance 	of 	subordinate duties" 	in
order 	for the 	"substantially 	similar" 	test to be 	arguably met,
and then weighing another measure: 	"the point at which the
employees' 	supervisory obligation to 	the 	employer outweighs 	their
entitlement 	to 	the rights 	afforded rank-and-file 	employees."1
The 	Board 	rejected the 	notion that 	this 	measure 	could 	be 	arrived
at 	through quantitative 	analysis, 	rather holding that 	the 	regular
performance 	of 	supervisory 	functions 	could 	itself 	preclude 	a
finding 	that 	the disputed 	employee's 	duties 	are 	"substantially
similar" 	to that of 	subordinates.
Within this 	framework, 	the 	Board reviewed and applied 	the
statutory criteria; 	namely, 	use of independent judgment, 	hiring,
authority to transfer, 	power to 	suspend, 	discharge, 	reward or
discipline, 	authority to lay off, 	authority to promote,
1OId., p. 	6.
1 1	". rd	I.i ., 	pp. 	7 - 8 .
15

preparation of personnel 	evaluations, 	vacations 	and 	sick 	leave,
merit 	increases and 	"other factors" 	(e.g., 	the disputed
employee's 	self-perception of role). 	In considering the use of
independent 	judgment, 	the 	Board distinguished between the mere
exercise 	of 	supervisory 	functions, 	which would not 	justify an
exclusion, 	and the 	exercise of 	supervisory functions with
independent 	judgment, 	which would. 	The Board also 	emphasized
that the potential 	for conflict between a 	"supervisor's" 	duty to
the 	employer and 	the 	same 	employee's 	rights 	under the Act 	lies 	in
the 	"authority to 	'control' 	or 	influence personnel
decisions 	. 	. 	.," 	not the mere 	"demonstration of control over
work processes 	. 	. 	." 	(Emphasis in original.)12 	This analysis
is 	reviewed and applied to each Department as 	follows.
Departments 	of 	Developmental 	Services 	and Mental 	Health
Due 	to 	the unique 	arrangement 	for 	food 	services 	between
these two departments, 	they are analyzed together. 	In reviewing
the 	criteria 	established 	for determining 	supervisory 	status 	of
FSSIs 	and SCIs 	in these departments, 	there 	is no 	indication of
supervisory 	status 	in the area 	of hiring, 	authority to 	lay off,
approval 	of vacations 	and 	sick leave, 	and authority to transfer.
The 	evidence 	indicates 	that 	SCIs 	and FSSIs 	sit 	on 	interview
panels of 	2 	or 	3, 	make recommendations which to a 	large extent
12 Id. pp. 9-10
16

are 	followed, 	but the ultimate decision to hire remains with the
site manager, 	or director of dietetics.13
Layoffs 	have not 	occurred. 	Sick 	leave and vacation
scheduling 	is 	an 	essentially ministerial 	function based 	on
established 	seniority 	and other defined policies. 	FSSIs 	and 	SCIs
were 	not 	demonstrated 	to 	have 	any 	additional 	authority 	to 	adjust
these procedures, 	be they contractual or administrative.
Likewise 	for transfers, 	the disputed classes 	may 	suggest 	a
different 	shift 	or building but do 	not possess 	authority 	to
independently 	transfer an 	employee 	to 	another 	facility.
In Sanger Unified School 	District 	(1989) 	PERB Decision No.
752, 	the Board held that 	food 	services 	supervisors who are
involved 	in the 	selection of 	substitute 	employees 	to 	cover 	normal
work assignments 	evidence 	a degree of 	supervisory 	status 	due 	to
the 	fact 	that 	some 	independent 	judgement must be used 	in
determining which potential 	substitute 	employee 	to 	contact.
Additionally, 	the Board 	found 	that 	the 	completion of 	kitchen
employees 	evaluations 	and work performance 	forms 	by 	a 	food
service 	supervisor, 	even though reviewed by a manager,
established 	further 	indicia 	of 	supervisory 	status.
The 	FSSIs 	and SCIs 	in these 	two departments 	have 	similar
responsibilities 	as 	those 	in Sanger Unified 	School 	District.
supra. 	The FSSIs 	and 	SCIs 	at Developmental 	Services 	and Mental
Health are 	responsible 	for 	arranging 	for 	substitute 	employees 	in
13See Foothill-DeAnza 	Community College 	District 	(1977) 	EERB
Decision No. 	10 	and San Rafael City Schools 	(1977) 	EERB Decision
No. 	32 for discussion.
17

case 	of 	absence 	and 	appear 	to 	have 	broad discretion 	in whom 	they
may 	call. 	They are 	also 	given 	latitude 	in the preparation of
probationary 	and 	yearly 	evaluation 	forms 	and 	merit 	salary
adjustment forms. 	Certain FSSIs' 	and SCIs' 	evaluations are
reviewed 	for writing 	style 	and grammar, 	but 	the 	content 	of 	the
evaluations 	remains 	the 	responsibility of 	the FSSI 	or 	SCI
assigned the 	shift of the FSW or Cook I 	or 	II.
As to the authority to promote, 	suspend, 	discipline,
discharge 	or reward, 	the 	Employer and Union witnesses 	each
testified 	to 	their 	self-perceived 	authority. 	Even 	SCI 	Michael
Hedgpeth, 	a CSEA witness, 	reluctantly acknowledged the 	authority
he 	might 	and did 	exercise 	to 	recommend 	the 	continued 	service 	of
individual 	employees.14 All 	the 	evidence presented 	indicated
that 	FSSIs 	and 	SCIs 	in these 	two 	departments 	effectively 	complete
'all 	personnel 	documents 	for employees who work on the 	shifts 	for
which they are responsible. 	The personnel 	forms 	to 	a 	large
extent 	are 	perfunctory 	and 	routine 	but 	employee 	promotional
opportunities, 	continued 	employment 	and merit 	salary 	adjustments
are determined to a 	large 	extent by the decision of 	the 	SCI 	or
FSSI 	that works with them.
As 	to the other 	factors 	mentioned by the Board, 	several
FSSIs 	and 	SCIs 	testified 	that 	they viewed their placement 	in 	the
bargaining unit 	as 	detrimental 	to 	the 	smooth 	functioning 	of 	their
assignment. 	Grievances which might arise between a FSWI 	or 	II, 	a
Cook I 	or II 	and the FSSI 	might not be resolved due to their
14TR Vol. 	IX pp. 	119-121, 	134-135 and 151-152.
18

inclusion in the 	same unit. 	Several 	of 	the FSSIs 	and SCIs
advised 	that 	their 	loyalties 	did 	not 	lie with the 	Union but
rather with the 	Employer. 	Training 	in 	supervisory 	skills 	has
been provided 	to 	all 	FSSIs 	and SCIs 	through the 	Department 	of
Personnel Administration. 	SCIs 	and FSSIs 	attend regular 	facility
management 	meetings 	to discuss 	department-wide 	and 	site-wide
problems. 	The evidence 	indicates 	that the SCIs 	and FSSIs 	do
sporadically perform unit work but 	not 	to 	the 	extent 	necessary 	to
find that 	the 	"line" 	has 	been crossed. 	Most of the regular
duties 	performed 	are 	supervisory.
Department 	of 	Education
When applying 	the 	supervisory 	criteria 	to 	the 	FSSIs 	and 	SCIs
working 	for Education, 	the 	record 	established 	is 	similar to 	that
of 	Developmental 	Services/Mental Health. 	There 	is 	no evidence 	to
show 	layoffs 	have 	ever been 	implemented. 	Vacation and 	sick 	leave
requests 	and 	the 	requisite 	search 	for 	substitutes 	are 	handled
similarly through a 	simple ministerial 	function, 	although due 	to
the 	fact that 	the 	schools 	are on a 	10-month 	schedule, 	vacations
are 	not 	normally 	scheduled during the 	school 	year. 	There was 	no
indication that 	either FSSIs 	or 	SCIs 	could or did make 	effective
transfers 	of 	employees 	or had made 	independent decisions 	or
recommendations 	on any employee 	to be hired. 	FSSIs 	and 	SCIs 	have
sat on panels 	for hire and promotional 	lists 	and acted as 	equal
participants with one or two other department 	employees. 	Judy
Pinegar, 	departmental 	Food Administrator, 	testified that 	in the
over ten years 	she has worked 	in the department, 	she has 	afforded
19

the 	SCI 	and FSSI 	great 	latitude 	in hiring whomever they 	feel 	most
'•competent; 	Ms- 4.
. 	Pinegar stated that 	she was 	aware of an instance
where 	a 	SCI 	at the Diagnostic 	School 	in Los Angeles 	actually
hired 	a 	cook 	in an 	emergency 	situation to 	fill 	a vacancy without
going 	through 	a 	normal 	second 	stage 	interview in which 	she or a
school-site manager would 	serve 	as 	a panelist along with a 	SCI.15
As 	to the other 	factors, 	the 	evidence established that 	SCI
and FSSI 	review of 	individual 	employee performance was 	not
second-guessed or over-ridden. 	FSSIs 	and 	SCIs 	used their
judgement 	in authorizing 	extra 	hours 	or 	selection of 	employees
for particular chores. 	Their 	judgement, 	and the personnel 	forms
which they complete, 	has 	significant 	impact on the 	continued
employment 	status 	of 	employees 	assigned 	their 	shift. 	Training 	is
provided 	to 	FSSIs 	and 	SCIs 	in 	supervisory 	skills 	and 	they 	attend
school 	site management meetings. 	Witnesses 	Christine Gonzales
and 	Gloria 	Lee 	Cody 	evidenced 	a 	sympathy 	for their roles 	as 	team
leaders 	and demonstrated 	a 	kinship with 	supervisors. 	Faye
Randolph downplayed her 	functions 	but 	the 	credible 	testimony 	of
Lisa McGregor, 	Ms. 	Randolph's supervisor, 	the director of
dietetics, 	demonstrated the 	extent to which 	she relied upon Ms.
Randolph's 	decisions 	to permit employees 	to pass probation, 	be
granted 	merit 	adjustments, 	work overtime 	and 	interview candidates
15The 	filling 	of 	this 	vacancy was 	actually 	completed by
allowing 	an employee hired as 	an emergency 	fill-in to become 	a
permanent employee. 	(TR Vol. 	IV P. 	49)
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for hire or promotion.16 Again, 	the FSSIs 	and SCIs 	demonstrated
that 	they do perform 	supervisory duties 	on a 	regular basis 	and
only perform unit work on an irregular basis. 	Therefore, 	these
positions 	must be held to 	fall within the definition of
supervisory 	employees 	whose 	exclusion 	from the 	unit 	is 	required
by the Act.
Veterans 	Affairs
Transfer, 	layoff, 	hiring and authority to grant vacation or
sick 	leave 	remain either non-issues 	or of 	such a 	nature 	to
require 	no use of 	independent 	judgement by the 	FSSIs 	or 	SCIs 	at
the Yountville Veterans 	Home.17	17 Independent 	judgement 	had been
and 	is 	regularly 	exercised 	in making assignments, 	approving
overtime, 	reviewing employee evaluations, 	approving merit
adjustments, 	and recommending promotion and discipline.
Robert Anderson, 	a SCI, 	testified that he had effectively
recommended the dismissal of at 	least one 	employee, 	and that he
initiated 	the 	documentation 	necessary 	for 	both 	formal 	and
informal reprimands of his co-workers.18 Inez Crouse, 	a FSSI,
advised that 	she 	completes 	employee 	time 	sheets, 	rates potential
employees, 	signs accident report forms, 	drafts reprimand notices,
and 	counsels 	employees 	on work related problems. 	She does 	not
16TR Vol. 	X pp. 	27-31.
17The veterans 	home 	is 	the only 	facility maintained by 	the
department 	that provides 	food 	services.
18TR Vol. 	VI pp. 	11-13.
21

consult with higher 	ranking 	supervisors 	or managers 	to 	complete
her duties.
The 	additional 	factors 	which may demonstrate 	supervisory-
status, 	such as training in resolving employee grievances,
conducting 	staff 	meetings, 	attending 	supervisory 	staff 	meetings,
and self perception, 	are all present here, 	as testified to by
Anderson, 	Crouse and the director of dietetics, 	Jean Tolentino.
The presence of 	SCIs 	and FSSIs 	as 	shift 	leaders 	at the different
work 	stations 	effectively 	limits 	the 	roles 	of the 	assistant
director 	of 	dietetics 	and the 	two FSSIIs 	to more 	administrative
functions 	at 	other 	locations. 	The day-to-day assignments 	are
issued by FSSIs 	and 	SCIs, 	and 	these 	assignments 	do 	vary based on
menu, 	skill, 	time and number of 	staff. 	Normally 	10 	employees per
shift report to a SCI, 	and 	12 	to 	14 work with a FSSI's 	shift,
thus 	creating 	a 	significant role 	in monitoring the hours worked
and 	assuring 	the 	quality 	and 	speed 	of 	food 	service 	is 	adequate.
The percentage 	of 	time performing unit work 	is 	not 	substantial 	or
on a 	regular or continual basis 	compared to 	the 	time 	expended
performing 	supervisory duties. 	The balance of duties performed
and 	loyalties 	toward management 	dictate 	a 	finding 	that 	these
employees 	be 	excluded.
Department 	of 	Rehabilitation
The 	sole 	SCI 	at the Orientation Center 	for 	the 	Blind has
full 	responsibility 	for the 	food 	services 	operation. 	Ms.
Hightower's 	direct 	supervisor 	is 	the business 	services 	officer
who has 	no direct" contact with the 	five 	food 	service workers who
22

work at 	the 	center. 	The 	SCI 	has 	the day-to-day responsibility of
assuring 	a 	functioning 	and 	orderly 	kitchen 	and 	cafeteria 	for 	the
center. 	Ms. 	Hightower's 	over 20 years of 	service at the center
have 	given her an expertise 	in being able 	to run the 	kitchen and
food 	services 	section without 	the 	normal 	training 	and 	development
a 	new 	employee might 	need.
Several 	of 	the 	supervisory 	criteria do not 	apply 	in Ms.
Hightower's 	assignment. 	There are no opportunities 	to transfer
employees 	since 	it 	is 	a 	single 	site 	facility. 	No 	layoffs have
occurred. 	Vacation and 	sick 	leave 	usage 	are perfunctory 	duties
which 	the 	SCI 	monitors. 	Hightower's 	testimony 	indicated 	that 	she
effectively chose 	for hire one of her current co-workers, 	a Cook
II, 	Eddie Manio. 	Manio acts as 	the 	lead worker for the remainder
of a p.m. 	shift after Hightower's 	shift is over. 	Hightower, 	in
addition to her recommendation to hire Manio, 	exercises
independent 	judgement 	in the 	completion of 	performance
evaluations, 	probationary reports, 	letters of commendation and
decisions 	to call 	substitutes 	for absent 	employees. 	She also
authorizes 	the use 	of 	CTO and approves 	overtime hours 	if 	needed.
The 	assignments 	of 	FSWs 	and cooks 	are 	fairly routine but
adjusting 	schedules 	to accommodate 	leave 	requests 	requires
Hightower to make decisions 	on who would act 	as 	a replacement
worker. 	Although Hightower estimates 	that 	25% 	of her assignment
involves 	actual 	kitchen work, 	she 	suggests 	that oversight 	and
training 	of 	employees 	occurs 	on these hours 	she 	spends 	in the
kitchen. 	So, 	she does not remove herself 	from her role as 	a
23

loyal 	supervisor 	even as 	she performs 	bargaining unit work.
There 	is 	no basis 	for 	finding her duties 	"substantially 	similar"
to her 	subordinates, 	and her position must be 	excluded 	from 	the
unit.
Conservation 	Corps
The 	statutory 	criteria 	and 	relevant 	case 	law expounded upon
in Unit Determination for The State of California, 	supra, 	PERB
Decision No. 	ll0c-S, 	when applied to the 	evidence of 	SCI 	duties
at CCC, 	reveals 	that a number of the 	criteria are not met and
others 	are quite 	limited as 	they relate to CCC 	staff. 	This 	is
due 	in part to the nature of the assignment, 	at remote 	facilities
with a 	seasonal 	influx of 	employees. 	The 	evidence demonstrates
that 	at 	CCC 	kitchen 	facilities 	there may be 	at most one 	other
permanent 	civil 	service 	employee who 	reports 	to 	the 	SCI 	for
assignments. 	However, 	Corps members 	are assigned KP and certain
Corps 	members 	are 	assigned positions 	as 	cook 	specialists. 	CCC
also 	employs 	Cooks 	I 	and 	II who work with the SCI 	but they are
often on relief 	shift 	for the SCI 	so no 	"hands-on" 	supervision
occurs 	during these 	extended times. 	SCIs work a 	regular kitchen
shift 	in addition to performing 	some 	supervisory duties.
The 	SCI 	does prepare work 	schedules, 	probationary reports
and merit adjustments; 	signs 	time 	sheets 	and accident 	reports;
and 	sits 	on QAP panels 	and hiring committees, 	but these are 	all
sporadic 	assignments 	that 	evidence 	limited use 	of 	independent
24

judgement.19 The 	chief 	assignment 	is 	as 	the 	lead 	cook of 	Corps
members 	and, 	at most, 	one other cook. 	The evidence that does
point 	to 	use 	of 	independent 	judgement 	centers 	around 	the 	SCI's
ability to have Corps members 	reassigned, 	transferred, 	or
relieved. 	The Corps members' 	lack of civil 	service 	status might
have 	impaired a 	finding that the 	SCI, 	is 	a 	supervisor prior to
the Board's recent decision 	(See f.n. 	7, 	above). 	Now, 	however,
we must 	look upon the Corps 	members 	as 	employees 	and, 	based on
the 	SCI's 	role 	in transferring, 	demoting and 	recommending 	for
permanent 	status 	these Corps 	members, 	the 	SCI 	must be 	found to be
supervisors 	based 	on their roles 	in 	controlling personnel 	and 	not
just work processes.
CONCLUSION
Based on a 	review of 	the 	evidence 	and 	case 	law discussed
above, 	the 	Employer has 	established 	that 	the 	following positions
are 	supervisory:
Supervising 	Cook 	I 	Developmental 	Services
Mental 	Health
Education
Veterans 	Affairs
Rehabilitation
Conservation 	Corps
and all 	current 	Food 	Services 	Supervisor 	Is.
The 	Employer presented 	no 	evidence 	as 	it relates 	to 	the 	SCI
classification at California 	Highway Patrol, 	Forestry or the
Maritime Academy. 	No 	inferences 	can be drawn by the 	testimony of
19Commercial Fleet Wash. 	Inc. 	(1971) 	190 NLRB 326 	[77 LRRM
1156]; 	Indiana Refrigerator Times. 	Inc. 	(1966) 	157 NLRB 539 	[61
LRRM 1401]; 	Meijer 	Supermarkets. 	Inc. 	(1963) 	142 NLRB 513 	[53
LRRM 	1081].
25

witnesses 	from other departments 	as 	it 	relates 	to 	these
classifications. 	The Board has, held that the burden of proving
an 	exclusionary 	claim 	is 	on the party asserting 	it.20 Therefore,
SCI 	positions 	in those three departments 	remain in the unit.
PROPOSED 	ORDER
Based upon the record, 	it 	is hereby ORDERED that:
The positions 	of 	Supervising Cook 	I 	in the departments 	of:
Developmental 	Services
Mental 	Health
Education
Veterans 	Affairs
Rehabilitation
Conservation 	Corps
and the positions 	of 	Food Services 	Supervisor 	I 	in the
departments 	of:
Developmental 	Services
Mental 	Health
Education
Veterans 	Affairs
are 	excluded 	from Unit 	15, 	and that the petition 	is denied with
regard to 	all 	remaining positions.
Pursuant to California Administrative Code, 	title 	8, 	section
32305, 	this 	Proposed Decision and Order 	shall become 	final,
unless 	a party 	files 	a timely 	statement 	of 	exceptions with 	the
board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page
20Unit Determination for the State of California, supra.
PERB Decision No. 	ll0c-S, 	citing In Re: 	The State Employer-
Employee Act Phase III. 	Unit Determination Proceeding 	(1979) 	PERB
Order No. Ad-79-S.
26

citation or exhibit number the portions 	of 	the record, 	if 	any,
relied upon 	for 	such 	exceptions. 	See 	California Administrative
Code title 	8, 	section 32300. 	A document is 	considered 	"filed"
when actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.)
on 	the 	last 	day 	set 	for 	filing 	" . . . 	or when 	sent 	by 	telegraph
or 	certified or Express 	United 	States 	mail, 	postmarked not 	later
than the 	last 	day 	set 	for 	filing. 	. . . " 	See California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of 	exceptions
and 	supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany 	each 	copy 	served 	on a party 	or 	filed with 	the 	board
itself. 	See California Administrative Code., 	title 8, 	sections
32300, 	32305, 	and 32140.
Dated: 	February 2, 	1990 Roger 	Smith
Hearing 	Officer
27