Sacramento City Unified School District (PERB 1773E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO CITY UNIFIED SCHOOL
DISTRICT,
Employer,
and
CLASSIFIED SUPERVISORS ASSOCIATION
Exclusive Representative.
,
Case No. SA-UM-704-E
PERB Decision No. 17 7 3
July 15, 2005
Appearances: Ruiz & Sperow by Eduard E. Erslovas, Attorney, for Sacramento City Unified
School District; Beeson, Tayer & Bodine by Jason Rabinowitz, Attorney, for Classified
Supervisors Association.
Before Duncan, Chairman; Whitehead, Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Classified Supervisors Association (CSA) to a
hearing officer's (HO) proposed decision (attached). The unit modification petition alleged
that the classifications of other supervisory positions in the Sacramento City Unified School
District (District) shared a community of interest with the Manager, Serna Center Restaurant
Operations, position created after the District moved to a new headquarters. CSA charged that
classifying the new position of Bistro Manager as a management position was a violation of
the Educational Employment Relations Act (EERA). 1
The Board has reviewed the entire record in this matter, including the unit modification
petition filed by CSA, the response filed by the District, the transcript of the hearing, post-
1EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

hearing briefs from both parties, the proposed decision, exceptions filed by CSA, and the
opposition filed by the District. The Board finds the HO's findings of fact and conclusions of
law to be free of prejudicial error and adopts the proposed decision as the decision of the Board
itself, subject to the discussion below.
DISCUSSION
The question in this case is whether the job of Bistro Manager is supervisorial with a
community of interest that is the same as the school site cafeteria managers in the District or
managerial where the person in the job exercises managerial prerogative and independent
thinking without communality of interests with supervisors in the District.
The District moved its headquarters from Capitol Mall in downtown Sacramento to the
Serna Center on 4 ih Street in early 2002. The old building had included a cafeteria and the
new building also had food facilities. CSA believes the facilities manager of the food part of
the new building should be classified in the same manner as the manager of the old facility
was. The District responded that the new position is different because the new facility is
different.
CSA acknowledges that the new facility is larger and provides a wider range of food
choices. It believes, however, that it is still a cafeteria. CSA also acknowledges that the
manager of the old facility was transferred to another cafeteria in the District because she did
not have the qualifications for the manager position at the new facility.
The District created two new positions for the new facility (named Serna Bistro). The
District created two new positions of Serna Center Executive Chef and Serna Center
Restaurant Operations Manager. These were identified as classified non-represented
supervisor and placed outside the bargaining unit.
2

The case was held in abeyance until the Serna Bistro became operational in May 2003.
After that time the parties continued the informal conference that had resulted in the case being
held in abeyance. 2
After the food facility became operational the two job descriptions noted above were
collapsed into one position -- that of Manager, Serna Center Restaurant Operations. The job
description was then revised to reflect the change. The CSA representative toured the facility
towards the end of 2003 and then the settlement conference was continued on February 6,
2004, without resolve. The case went to hearing March 30, 2004.
CSA'S POSITION
CSA cites EERA section 3545(b)(2) that states a negotiating unit of supervisory
employees shall not be appropriate unless it includes all supervisory employees employed by
the District. This is the basis for its position that this job at the Serna Center must be in the
supervisory employee unit.
It is CSA's position that these jobs are not managerial within the meaning of EERA and
therefore must be in the unit.
DISTRICT'S POSITION
The District maintains that the only community of interest among the other cafeteria
supervisors and the Serna Operations Manager/Executive Chef is that they all deal with food.
The hours of work, levels of supervision and interchange with other employees is all different,
according to the District. The District believes that there is no communality on negotiable
subjects.
2That informal conference started in June 2002.
3

The District cites Section 3540.1 (g) for its position that this is a managerial job. That
code section states that a management employee is any employee in a position having
significant responsibilities for formulating District policies or administering District programs.
The new Serna Bistro (which opened in May 2003) is a unique restaurant dining
operation not the same as the other District food operations which are school cafeterias. This
is, according to the District, a full service catering and restaurant operation.
The District indicated in its opposition to statement of exceptions that CSA has not
indicated what community of interest there is with the school site cafeteria managers and the
Serna Bistro Manager. The training and requirements of the Bistro Manager are not
comparable to the school site cafeteria supervisors and the duties of the Serna Bistro Manager
include the catering operation not addressed by CSA. This part of the Bistro Manager's duties
is an area where he has developed and modified the goals of the District. The Bistro Manager
reports to the Director of Nutritional Services, just like the five area supervisors who are
unrepresented and who oversee the school site cafeteria supervisors. He represents
management when he negotiates with and selects vendors.
The District maintains that the independent judgment and managerial skills of the
Bistro Manager have increased the District's revenue at the Bistro to five times more than what
was made at the cafeteria in the old administration building that preceded the Bistro. This is a
significant difference from the school site cafeteria supervisors.
HO'S POSITION
CSA claims this is a supervisor position and the District claims this is a manager
position, the HO cited the rule that "Since managerial employees are excluded from collective
bargaining rights under EERA, 'great care must be exercised in determining who shall be
4

considered a management employee.' (Oakland Unified School District (1977) EERB[3l
Decision No. 15.)"4
She also noted that "The facts must establish that the employee is clearly allied with
management. (Paramount Unified School District (1977) EERB Dec. No. 33.)" (Ibid.)
She found that evidence established the Bistro Manager has the discretion to "exercise
his discretion to develop and implement policies affecting District operations. He also uses his
independent judgment in administering Bistro operations and the catering department." She
found the Bistro Manager to be a management employee and excluded from the bargaining
unit because of his "significant responsibilities for formulating policies and administering
programs." (HO's proposed dee. at p. 13.)
CONCLUSION
The evidence that was put before the HO showed that the Bistro Manager, unlike the
school site cafeteria supervisors, had autonomy over Bistro operations and catering. He also
used his independent judgment to identify issues related to what food was selling well and
what needed to be replaced on the menu. He did not have to follow the federal and state
nutritional guidelines as the school cafeteria site supervisors did and he was responsible for
making a profit and selecting what vendors to use. He also was responsible for developing
policies for safety and use of kitchen equipment. He wrote manuals related to policies as
diverse as staff training and vendor purchasing. These policy manuals are in use at the Bistro
but not at other sites in the District.
3Prior to 1978, PERB was known as the Educational Employment Relations Board
(EERB).
4HO's proposed decision at p. 10.
5

There was also evidence that he interacts with the community and with people in the
District directly. This is in relation to use of the catering services and meetings at the facilities
for District and outside groups.
The HO found Unit Determination for Employees of the California State University and
Colleges (1981) PERB Decision No. 173-H to be on point. There, the Board found the
manager of the university educational television station to be a management employee. The
station manager was in charge of the overall development and direction of the campus station.
He, like the Bistro Manager, was responsible for the financial well-being, effectiveness of
operations and supervised staff in the implementation of policy. She also found the Berkeley
Unified School District (1979) PERB Decision No. 101 case to be on point with its holding
that "[t]he authority to use independent judgment to direct a change in practice and utilizing
surveys to identify issues and make resulting changes have been determined to be
characteristics of a management employee."
We agree with the HO that Franklin-McKinley School District (1979) PERB Decision
No. 108 is not on point. There, the manger of maintenance and operations for custodial
services, maintenance and grounds operations, transportation and warehousing, was found to
be in a non-managerial position. But in that case, he did not have final say over changes, they
were reviewed by a committee and adopted by the school board. He also did not have
authority related to accepting or rejecting bids.
In this case, contrary to the position of CSA, the Bistro Manager does have autonomy
over institutional policies related to the Bistro. These are different and apart from those of the
school cafeteria site supervisors.
6

The Director of Nutrition, Marc Lemieux (Lemieux), testified that in terms of the
concept of operating a profitable restaurant and operation of the school site cafeterias there was
no comparison between them. He said:
[m] ost of the fiscal considerations that are done in the cafeteria
program are centralized in my office. And those decisions are
made in my office.
At the Bistro because it is so different from the cafeteria
programs, I wanted to hire a manager who had experience in the
fiscal -- not only fiscal effectiveness of a restaurant operation, but
be able to cost, analyze costs, spec products, establish and
generate bids. Everything that would ensure the profitability of
that -- operation. [R.T., p. 102.]
When asked about the terms of development of safety programs, how much
independence the Serna Bistro Manager had, the response from Lemieux was, "He has
complete autonomy." (R.T., p. 109.)
In its exceptions, CSA argues that the analogies drawn in the above cases are not close
enough. We disagree. We also note that there is no argument from CSA related to the
community of interests of the school cafeteria site supervisors and the Bistro Manager.
Lemieux's testimony was unrebutted.
We find the District has met its burden in establishing this as a management job without
the community of interest with the cafeteria site supervisors that would be necessary to put this
position in that classification. We adopt the HO's proposed decision as the decision of the
Board itself.
ORDER
Based upon the foregoing findings of fact, conclusions of law and the entire record in
this matter, the unit modification petition in Case No. SA-UM-704-E, Classified Supervisors
Association and Sacramento City Unified School District, to modify the bargaining unit to
7

·include the Manager, Serna Center Restaurant Operations, classification to the Operational
Support Supervisors unit is hereby DENIED.
Member McKeag joined in this Decision.
Member Whitehead's concurrence begins on page 9.
Member Shek's dissent begins on page 10.
8

WHITEHEAD, Member, concurring: Without further comment, I concur with the
result but not the rationale of the plurality opinion.
9

SHEK, Member, dissenting: I respectfully dissent from the majority opinion. I adopt
the Findings of Facts in the proposed decision insofar as it is consistent with the following.
FINDINGS OF FACT
This case involves the unit modification petition filed by the Classified Supervisors
Association (CSA) with the Public Employment Relations Board (PERB or Board) on April 9,
2002, to add two new and unrepresented classifications: Serna Center Food Production
Specialists and Serna Center Restaurant Operations Manager; to the Operational Support
Supervisors bargaining unit (OSS unit) within the Sacramento City Unified School District
(District). CSA amended its petition during the hearing on March 30, 2004, to substitute the
new and unrepresented classification of manager, Serna Center Restaurant Operations (the
manager), which is a consolidation of the two above-stated classifications.
In 2002, the District relocated its administration headquarters from the Capitol Mall
location to the newly constructed Serna Center, which was intended to be used not only as the
hub for school management, but also as a "community services" center. The District planned
to develop a full-scope restaurant dining operation at the Serna Center, commonly referred to
as the Bistro (Bistro), to provide dining services for the staff, community and public.
It was estimated that 600 employees would occupy the Serna Center during the day,
and many community-related events would be held in the evening. Subsequently, only 450
employees occupy the Serna Center; and all the meeting rooms have to be reserved for staff
personnel due to budget restraints. The District director, Nutrition Service (director) designed
the Bistro in a cafeteria format that offers very inexpensive meals. With the exception of hot
entrees and espresso, all food items such as the typical breakfast pastries, cold cuts for
sandwiches, and pizza, are laid out in servers, and on shelves, stands or counters for self-
serv1ce.
10

The Bistro began operating in May 2003. According to the District personnel officer,
the manager is responsible for looking at policy, working with the director, setting procedures
in place and managing the Bistro. The manager's basic function, as stated in the District
position description, is to "manage, plan, direct, organize, and control the overall operation and
administration of the Serna Center Restaurant and Catering Department." His representative
duties are specific to the Bistro, and does not include any reference to the formulation of
district policy, or administration of a District program.
The director testified that the manager has yet to "develop or administer sound business
policies that continually enhance program profitability." They "discuss guidelines to deal with
potential customers," but they do not set policies.
The director wants in a manager someone with expertise, experience and knowledge,
who can make independent sound judgments on food production and food production quality,
be held "highly accountable" professionally and financially, and be subject to review. In
exercising independent judgment and discretion in the operation of the Bistro, the manager
merely provides services to the superintendent, community groups, companies, and advocacy
groups that visit the Serna Center. The manager has surveyed the Bistro customers, consisting
of the 450 administrative employees who work at the Serna Center concerning their menu
preferences, and introduced "a take-home dinner program." He has also promoted catering to
all school sites which are not mandated to use the Bistro for catering, and to some outside
organizations. Revenues from the catering services have been inconsistent, and generate an
average of one-third of the overall Bistro income.
Fiscal responsibility for the Bistro's profitability is one of the manager's duties, but
both the director and the manager are responsible for the Bistro's business development. As a
stipulation for spending $250,000 of the District's nutrition budget on constructing the Bistro,
11

the director expects the Bistro to be operated profitably. To the director's disappointment, the
Bistro income is insufficient to cover the expenses, and there remains a daily deficit of $150.
The manager submits weekly financial reports on the total income of the Bistro and
catering services for the director's review, however, the manager does not have any
discretionary control over the Bistro budget. He has limited power in structuring the Bistro as
a community restaurant. He cannot set prices, open the Bistro to the public, put a sign in front
of the cafeteria, or advertise, because "several superiors" are opposed to letting the general
public into the building due to security risks. As a result, the walk-in traffic is "scant". After
obtaining the District officials' approval, the manager decided to close the Bistro at 4:00 p.m..
The manager has "complete autonomy" in the development of the menu and safety
programs. In addition to the standard cafeteria food, including breakfast pastries, cold cut
sandwiches and drinks, the Bistro offers four or five categories of food selections such as a
healthy category, a "Quick pick," special of the day, grill items and a large variety of coffees.
The 150-page food safety training manual he prepared based on a National Aeronautics and
Space Administration (NASA) system is not unique to the Bistro as it can be applicable to
other operations outside of the District. In developing the "commercial foods handling
hygiene manual," the manager conforms with the county code, state and federal guidelines, by
which the District operates its nutrition program. Neither manual has been adopted as a
District policy.
The District nutrition service, including the Bistro, follows the state guidelines in
developing its own policies on purchasing and selection of vendors. The manager has some
"latitude" in choosing "exclusive" vendors; but still has to follow the District and nutrition
service policies on purchasing and selection of vendors. His recommendation for a coffee
vendor, for instance, was subject to the director's approval and "ultimate decision."
12

The manager supervises four full-time and four part-time employees, all of whom are
employed with the District, and have prior work experience at school sites. He is responsible
for setting their work schedules, implementing and applying collective bargaining provisions,
handling disputes, taking corrective action when employee performance is below standard,
including counseling, reprimand and/or disciplinary action.
The CSA introduced evidence on the actual duties and functions of a Site Supervisor I
(SSI) and a Site Supervisor III (SSIII), which classifications are included in the OSS unit. The
incumbent SSI was in charge of the Nutri Cafe (Cafe), formerly located in the District
administration headquarters on Capitol Mall. The SSIII is responsible for providing lunches
for a small program known as New Dimensions at the Sacramento High School (High School)
and four elementary school sites. During their twenty plus years of work experience in food
service, both the SSI and SSIII have operated the District catering services, prepared meals
from fresh ingredients, and cooked raw meat roasts in the school kitchens. The occurrence of
an unidentified "incident" caused the District to modify the cooking method from "scratch"
cooking and baking to more "heat and serve." They both have responsibilities for planning
menus, selecting vendors and placing purchasing orders with some "leeway," preparing daily
reports on the cash collected, food items used, purchases ordered, payroll and the quantity of
meals qualified for the government reimbursable programs. They have also supervised
employees that constitute the kitchen staff.
ISSUES
The issue in this case is whether or not the manager is a "management employee" or a
"supervisory employee" as defined under Section 3540.l(g) and (m) of the Education
13

Employment Relations Act (EERA); 1 and whether or not the OSS' petition for unit
modification should be granted or denied.
The CSA contends that the manager is not a managerial employee within the meaning
of EERA, because he does not have significant responsibilities for formulating District policy
and administering District programs. His job duties involve essentially the operation of a
cafeteria. The petition for unit modification should therefore be granted.
The District argues that the manager is a management position that falls outside the
ambit of CSA. The manager's duties are to manage, plan, direct, organize and control the
operation and administration of the Bistro and catering department. The manager is directly
responsible for the fiscal profitability of the operation; formulation of policies and the training
of employees in purchasing procedures, safety, development of menus; and development of
policies that are consistent with customer desires. The manager is therefore a management
employee, and the petition should be denied.
CONCLUSION OF LAW
Supervisors may be included in units consisting of all supervisory employees, but
excluded from any units of employees whom the supervisory employees supervise.
EERA section 3540.l(m) states:
'Supervisory employee' means any employee, regardless of job
description, having authority in the interest of the employer to
hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or the responsibility to
assign work to and direct them, or to adjust their grievances, or
effectively recommend that action, if, in connection with the
foregoing functions, the exercise of that authority is not a merely
routine or clerical nature, but requires the use of independent
judgment.
1EERA is codified at Government Code section 3540, et seq. All statutory references
herein are to the Government Code unless otherwise noted.
14

Section 3545(b)(2) states:
Except as provided in subdivision (c), a negotiating unit of
supervisory employees shall not be appropriate unless it includes
all supervisory employees employed by the district and shall not
be represented by the same employee organization as employees
whom the supervisory employees supervise.
Management employees are not employees within the meaning of the EERA, and may
not be included in any negotiating unit.
Section 3540.1 states, in part:
(g) 'Management employee' means any employee in a position
having significant responsibilities for formulating district policies
or administering district programs. Management positions shall
be designated by the public school employer subject to review by
the Public Employment Relations Board.
G) 'Public School employee' or 'employee' means any person
employed by any public school employer except persons elected
by popular vote, persons appointed by the Governor of this state,
management employees, and confidential employees.
Since management employees are not considered public school employees for purposes
of EERA and have no negotiating rights, "the definition of a 'management employee' should
be interpreted narrowly," (San Francisco Unified School District (1977) EERB2 Decision
No. 23, (San Francisco), at p. 8) and "great care must be exercised in determining who shall be
considered a management employee." (Oakland Unified School District (1977) EERB
Decision No. 15, (Oakland I), at p. 7.)
Accordingly, the Board has construed Section 3540.l(g) narrowly by ascribing "no
controlling significance" to the Legislature's use of the disjunctive in that section. The
reference to "significant responsibilities" in that section is made to both the "formulating [of]
2Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
15

district policies" and the "administering [of] district programs."3 (Lompoc Unified School
District (1977) EERB Decision No. 13 (Lompoc), at p. 20; Oakland I, at pp. 6-7;
San Francisco, at p. 8.)
The party arguing for exclusion of employees from inclusion in a supervisory
employees unit by designating them as management employees has the burdenof proving by a
preponderance of evidence that such employees are managerial. 	(San Francisco, at p. 9.)
The Board has developed the criteria for "managerial employee" in a series of cases
involving the appropriateness of bargaining units. 	In Hartnell Community College District
(1979) PERB Decision No. 81 (Hartnell), the Board concluded that department chairpersons
were not managerial employees based on the following rationale.
The Board has previously concluded that a 'management
employee' within the meaning of section 3540.l(g) of the EERA
must possess significant responsibilities both for the formulation of
district policy and the administration of district programs. [Fn.
omitted.] The formulation of policy contemplates the exercise of
discretionary authority to develop and modify institutional goals
and priorities. The administration of programs contemplates
effective implementation of the policy through the exercise of
independent judgment. Thus, managerial status contemplates
those persons who have discretion in the performance of their jobs
beyond that which must conform to an employer's established
3As stated in Member Gonzales' concurring opinion in Lompoc, which was concurred
by Member Cossack, the rationale for reading Section 3540.l(g) in the conjunctive was:
Clearly, a person who has supervisory status has significant
responsibility for administering a school district's personnel
program. [Fn. omitted.] Yet, nowhere in the definition of
'supervisory employee' as found in Government Code
section 3540.l(m) is there any indication that such a person also
has significant responsibility for formulating a school district's
personnel policy. Therefore, to read Section 3540.l(g) in the
disjunctive would qualify even supervisors as management
employees, which, in turn, would be inconsistent with the
legislative grant of negotiating rights to supervisors.
Applying the foregoing to the facts of this case, I find that none
of the subject coordinators are management employees.
(Lompoc, at pp. 20-21.)
16

policy. The question as to whether particular employees are
managerial must be answered in terms of the employees' actual job
responsibilities, authority and relationship to the employer.
Managerial status is not necessarily conferred upon employees
because they possess some limited authority to determine, within
established limits, curriculum, course content or budgetary
allocations. (Hartnell, at p. 13.)
In Berkeley Unified School District (1979) PERB Decision No. 101 (Berkeley), and
Ventura County Community College District (1980) PERB Decision No. 139 (Ventura), the
Board determined that the woman studies director/Title IX coordinator and the affirmative
action officer, respectively, were managerial employees.
In Berkeley, the district designated the woman studies director/Title IX coordinator to
gather information requested by the Department of Health, Education and Welfare, and to
insure the district's compliance with Title IX. She had the authority to use independent
judgment to investigate and identify various district-wide sexually discriminatory practices and
policies, and to implement changes to eradicate gender bias. She had discretionary control
over a $5,000 budget to effectuate her responsibilities relating to Title IX. The Board found
the woman studies director/Title IX coordinator to be a management employee since the record
demonstrated significant responsibilities for formulating and administering district policy with
respect to the equal treatment of the sexes. (Berkeley. at p. 10.) 	.
Relying on Berkeley. the Board decided that the position of affirmative action officer in
Ventura was similar to that of the woman studies director/Title IX coordinator. The affirmative
action offi_cer was primarily responsible for administering the district's affirmative action plan
and authorized to waive portions of the plan in order to achieve affirmative action. She
formulated and conducted district-wide surveys to determine the utilization, underutilization,
ethnicity and sex distribution of positions. She could direct the district superintendent to
implement changes in the district's affirmative action plan to meet legislative requirements. She
handled all inquiries from the district employees with regard to affirmative action and was the
17

district's chief spokesperson with the governmental agencies dealing with affirmative action.
She had discretionary control over the entire affirmative action budget, excluding salaries. As
the facts in the Ventura case are analogous to those in Berkeley. the Board concluded that the
position of the affirmative action officer is a management employee. (Ventura, at pp. 9-10.)
In determining the issue of"management employee," the majority of the PERB decisions
have found the employees to be non-managerial based on the following criteria.
Employees whose recommendations are subject to approval on at least two higher levels
cannot be said to formulate district policies. Employees may demonstrate a substantial
managerial discretion in the administration of their respective programs by not only exercising
independent judgment in the performance of their duties, but also having discretion or
authority that goes beyond the district's established policy. (Lompoc, at p. 14.)
Mere participation in regular discussions where policy alternatives are aired, does not
vest the employees with significant responsibilities for formulating district policies.
Administrative duties that are performed for the primary purpose of assuring compliance with
established district policy with no discretionary deviation, and are subject to regular and rigorous
review, do not suffice as significant responsibilities in administering district programs.
(Los Rios Community College District (1977) EERB Decision No. 18 (Los Rios), at p. 19.)
The exercise of discretion within the employees' areas of expertise, does not equate the
authority to formulate district policy. Employees who exercise their authority on a localized
basis, rather than a district-wide basis, and who have no "intimate relationship with high level
district officials" are not management employees. (Oakland I, at p. 7.)
Employees who merely make policy recommendations by serving on advisory
committees that play a role in formulating district policy, do not have any significant input in
formulating the school district's policies. Although they may be responsible for the general
management of a district program, such as a school, they are not management employees if
18

their exercise of authority in managing is limited to complying with or effectuating established
school district policies, which have been formulated by higher level district employees at the
board of education level. (San Francisco, at p. 9 of the adopted proposed dee.)
The facts must clearly establish that the employees are clearly "allied with
management," and that their decisions are made independent of, rather than "under the
direction and control of' the management team. (Paramount Unified School District (1977)
EERB Decision No. 33 (Paramount), at pp. 4 and 7.)
The Board has found that "management employees" do not encompass those who have
no discretion to deviate with the district policies which they are responsible to administer, no
final authority to approve their own proposals or those of the committees on which they serve,
and which proposals are subject to a multi-level review process. (Marin Community College
District (1978) PERB Decision No. 64 (Marin).) In Marin, the subject employees were college
coordinators who had participated in management group meetings concerning collective
bargaining, drafted district policies, approved requisitions for college expenditures, worked with
the president and superintendent on matters related to facilities planning, had preliminary
responsibilities with respect to developing the budgets of their colleges, and were responsible for
presenting recommendations and proposals of the college committees to the college council. In
addition, college coordinators made faculty assignments, evaluated certificated employees,
allocated teaching units, recommended disciplinary action, interviewed teaching candidates and
made recommendations as to whether they should be hired. Notwithstanding such extensive
administrative duties, the Board found that the record did not support the exclusion of college
coordinators from the negotiating unit on the basis of management status. (Marin, at pp. 21-22
of the adopted proposed dee.)
A manager of maintenance & operations was found not to be a management employee,
because he did not effectively recommend or develop policy, had no authority to bind the
19

district with outside contractors, or to reject or accept a bid on behalfof the district. A draft of
the transportation handbook developed by a committee under him was subject to approval by at
least two levels of management, the superintendent and the school board, before it became
final. 	(Franklin-McKinley School District (1979) PERB Decision No. 108 (Franklin-
McKinley), at pp. 7-10.)
The management status of an employee is not determined based on the competency of
work performance. In Holtville Unified School District (1981) PERB Decision No. 180
(Holtville), the Board found the incumbent not being responsible for the budget development
necessary to run her programs, because the district superintendent had the authority to approve or
disapprove all requests for appropriations. Training and supervision of an aide did not make an
employee management, if the final authority for hiring and firing lied with the superintendent.
(Holtville, at p. 8 of the adopted proposed dee.)
The Board has distinguished between managing and implementing a district-wide
policy and developing one. An employee who has no authority to modify and deviate from
established policy cannot be considered as a management employee. (Oakland Unified School
District (1981) PERB Decision No. 182 (Oakland II), at pp. 3-4.)
The Bistro manager does not have any significant responsibilities in formulating
District policies. The District's description of the manager's function and duties does not
withstand the test set forth in Hartnell, that "the formulation of policy contemplates the exercise
of discretionary authority to develop and modify institutional goals and priorities." (Hartnell, at
p. 13.) Nowhere in the District position description of the manager's representative duties is
the function "formulating of district policy" stated explicitly or implicitly.
The personnel officer's testimony states that the manager is responsible for looking at
policy, working with the director, setting procedures in place and managing the Bistro, which
is different from formulating District policy. "Looking at" can be defined as "examining," or
20

"directing one's attention towards something," but not developing or modifying. "Setting
procedures" does not imply setting policies. "Procedures" can be defined as" a particular way
of doing or of going about accomplishment of something," "a particular course of action," or
"an established way of conducting business." Institutional goals and priorities may be
achieved through procedures, but procedures are not the institutional goals and priorities
themselves. To manage can be defined as to "control," "direct," or "carry on business,"4 which
is distinguishable from formulating policies.
The director and the manager "discuss guidelines to deal with potential customers,"but
the manager has yet to "develop or administer sound business policies that continually enhance
program profitability." A manager of maintenance and operations who was found by the
Board not to be a managerial employee testified that he did not "effectively recommendor
develop policy, and in fact could not recall recommending any specific policy." (Franklin-
McKinley), at p. 7.) An affirmative action purchasing manager who testified that he had
"never been called upon to develop" a district-wide policy was likewise found by the Board t
be other than a management employee. (Oakland II, at p. 4.)
o
In accordance with Hartnell, the question as to whether the manager is managerial will
also be addressed in terms of the his actual job responsibilities, authority and relationship to the
employer. (Hartnell, at p. 13.)
During the planning phase for the Serna Center, the District envisioned the new
administration headquarters not only as the hub for school management, but also as a
"community services" center. The District planned to develop a full-scope restaurant dining
operation at the Serna Center, to provide dining services for the staff, community and public.
It was anticipated that the Serna Center would be occupied by 600 employees during the day,
4All definitions are extracted from Webster's Third New International Dictionary.
21

and open to the public for events after hours. Due to unanticipated financial constraints and
lower staffing level, the District officials asked the director to re-design the restaurant
operation into a self-service cafeteria that serves "very inexpensive" meals. The manager was
originally hired as the executive chef, and later promoted to the manager position as the two
positions were merged into one. He neither participated in developing the vision of a full-
scope dining operation, nor was he involved in modifying the restaurant into a cafeteria. (See
Oakland II, at pp. 3-4.) He was put in charge of the Bistro after the director and higher District
officials had decided on the configuration of the Bistro. He did not have the authority to
deviate from the District's decision. (See Marin, at p. 21.) He cannot advertise the Bistro, or
change the District security policy and make the Bistro more accessible to "walk-in traffic."
His primary duties of managing the Bistro are performed for the purpose of complying with the
director's decision to operate the Bistro as a cafeteria. He therefore does not have any
significant responsibilities in developing or modifying institutional goals and priorities. (See
San Francisco, at p. 9 of the adopted proposed dee.)
The director holds the manager accountable professionally and financially, and expects
him to exercise independent sound judgments for food production and food production quality.
The manager has complete autonomy in menu development, however, he cannot go beyond the
District's established policy of operating a self-service cafeteria. All menu choices such as the
"healthy category," "quick pick," grill items, hot and cold sandwiches, pizza and the large
variety of coffees are all planned for a cafeteria-style food service. There may be more kitchen
equipment and menu choices provided by the Bistro than by the Cafe or the school site
cafeterias, however, the nature of meal preparation is generally the same. Fresh ingredients
have to be cleaned, cut and sliced, and certain meat entrees have to be cooked. The rest of the
menu consists of ready to serve items. Since the manager operates the Bistro within a cafeteria
format predetermined by the District, beyond which he does not have the discretion or
22

authority to modify or change, he cannot be considered to have the authority to formulate
District policies. (See Lompoc, at p. 14.)
The manager has complete autonomy in the development of the safety programs, which
lies within his area of expertise. The 150-page food safety training manual which is based on a
NASA system, and the "commercial foods handling hygiene manual" which is a guideline
applicable only to the Bistro, have not been adopted as District policies. The manager's
authority in developing food safety and handling programs that are unique to the Bistro
kitchen, is exercised on a localized basis, rather than a District-wide basis. The fact that the
Bistro clientele consists of District administrative employees, does not make the Bistro or the
catering service a District program. There are 450 employees, but most school sites have at
least that amount of students and teachers, if not more. The manager provides only services to
the superintendent, community groups, companies, advocacy groups, and public education
related organizations that are in the District office. He does not have an "intimate relationship
with high level district officials." (See Oakland I, at p. 7.)
The manager and the director have weekly report and discussion sessions concerning
the income totals for the Bistro and catering service. They then have a discussion about the
reports and any unmet goals. The director would give the manager "insight" that the Bistro
was moving in the right direction, however, the director was initially "disappointed" by the
manager's fiscal reports. The manager's participation in regular discussions with the director
does not vest the manager with any significant responsibilities for formulating District policies.
In being accountable to the director, the manager's performance of his duties are subject to the
director's regular and rigorous review. Although the contents of the reports prepared by the
SSI and SSIII differ from those prepared by the manager, they have similar reporting
23

obligations to their supervisors5• The manager is therefore not a management employee. (See
Los Rios, at p. 19.)
The manager has direct responsibility for the Bistro's fiscal profitability, but the
evidence shows that the manager has no discretionary control over the Bistro's fiscal budget,
which is a part of the District's nutrition budget. The manager has no authority to hire the
employees who work at the Bistro under his supervision, or determine their wages or benefits.
The manager does not set the prices of the menu items. The detailed weekly financial reports
prepared by the manager is subject to the director's review and scrutiny. The manager's fiscal
responsibility is minor as compared to that of the woman studies director/Title IX coordinator
in Berkeley, and the affirmative action officer in Ventura. The employees in both cited cases
had discretionary control over their entire budgets. The manager's authority is limited to
monitoring the Bistro's income to prevent deficit spending. There is no evidence that the
manager is ultimately responsible for the budget development necessary to operate the Bistro,
and that he does not require the director's approval for all appropriations. (See Holtville, at p.
8 of the adopted proposed dee.)
The manager's implementation of the District and food service purchasing and vendor
selection policies show that he cannot bind the District without prior approval. While the
manager has some "latitude" in choosing "exclusive" vendors; just as the SSI has some
"leeway" in choosing certain vendors, he still has to follow the policies on purchasing and
selection of vendors established by the District and the food service. When the Bistro
customers expressed a preference for expanded coffee offerings, the director introduced the
5The SSI kept written record of the food items used, ordering forms, daily attendance
and payroll reports; and prepared an analysis on the cost per serving for the specials upon the
director's request. The SSIII generates daily reports on the computer for the High School and
the other four school sites. The daily reports include records of the quantity of breakfast,
lunches and snacks that are qualified for the free reimbursable program and the "grandparent
programs," and the amount of cash collected.
24

coffee sales representatives to the manager, who interviewed the coffee vendors and selected a
vendor for the director's approval and "ultimate decision." (See Paramount, at pp. 4 and 7.)
The manager has no more authority than the manager of maintenance and operations in
Franklin-McKinley, who checked out the reliability of particular outside contractors, but had
no authority to reject or accept a bid on behalfof the District, or bind the District in any other
way. 	(Franklin-McKinley. at pp. 8 and 10.)
The director stated that the manager surveyed his customers as a means to "develop and
administer sound business policies." He made menu changes based on the survey results. The
surveyed customers consisted of only the Bistro customers. In Ventura, the affirmative action
officer conducted district-wide surveys to investigate possible violations of the district
affirmative action plan, and if violations were found, she could direct the district
superintendent to implement changes in the district policy on affirmative action. In the present
case, the survey was conducted to determine the culinary pleasures of a localized group of
customers. The survey results had no impact or effect on any District policy.
The manager has used fresh ingredients in preparing meals, initiated a number of
promotional programs, and promoted the catering program within the school district and to
outside organizations. However, the management status of an employee is not determined
based on work performance or competency. (See Holtville, at p. 8 of the adopted proposed
dee.) The catering program is not a new District program that the manager has initiatedor
developed. It was formerly operated out of the Cafe and the High School. The record shows
that notwithstanding the manager's effort, the catering program does not impact the entire
District, because school sites are not required to use the Bistro for catering. Catering revenues
are inconsistent and consist of only one-third of the entire Bistro income. There is little
evidence to show that the off-site catering is significant enough to be considered a District
program.
25

The cooking method cannot be used as a yardstick in determining the management status
of an employee. The District-wide cooking methods have evolved throughout the years.
Preparing meals with fresh ingredients was the norm until the occurrence of an unidentified
"incident." In comparison, most of the food items at the Bistro are self-serve, except for the hot
entrees. The question is therefore not how the meals are prepared, but whether or not the
manager has the discretion to go beyond the cafeteria format. (See Oakland II, at pp. 3-4.) In
the present case, the facts show that the manager lacks such an authority.
In sum, the District has not sustained its burden of proving by a preponderance of the
evidence that the manager has significant responsibilities in formulating District policy and
administrating District programs. The position of manager is not "management employee"
within the meaning of Section 3540.l(g) ofEERA.
In Sweetwater Union High School District (1976) EERB Decision No. 4, the Board
held that the performance of any one of the enumeration factors in Section 3540.1 (m) is
sufficient to establish a supervisory employee within the meaning of EERA. The manager is
responsible for implementing and applying collective bargaining provisions, handling disputes,
taking corrective action when employee performance is below standard, including counseling,
reprimand and/or disciplinary action. He supervises about eight employees, all of whom are
District employees. The manager should therefore be included in the OSS unit.
26

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO CITY UNIFIED SCHOOL
DISTRICT,
Employer,
and
CLASSIFIED SUPERVISORS ASSOCIATION,
Exclusive Re resentative.
REPRESENTATION
CASE NO. SA-UM-704-E
PROPOSED DECISION
(12/13/04)
Appearances: Martin Fine, General Counsel, for Sacramento City Unified School District;
Beeson, Tayer & Bodine by Jason Rabinowitz, Attorney, for Classified Supervisors
Association.
Before Robin W. Wesley, Hearing Officer.
PROCEDURAL HISTORY
On April 9, 2002, the Classified Supervisors Association (CSA or Petitioner) filed a
unit modification petition with the Public Employment Relations Board (PERB or Board). The
petition sought to modify the bargaining unit represented by CSA by adding two
classifications: Serna Center Food Production Specialist and Serna Center Restaurant
Operations Manager. These positions were established to operate the Serna Center Bistro
(Bistro) located within the new Sacramento City Unified School District (District)
administrative office building.
A settlement conference was held on June 21, 2002, during which the parties agreed to
place the petition in abeyance because the Bistro was not yet in operation. The Bistro opened
in May 2003. CSA Representative Ruth Holbrook toured the Bistro in November or early
December 2003. Thereafter, she requested that the unit modification petition be processed.

A second settlement conference was held on February 6, 2004, but the matter was not
resolved. A formal hearing was held on March 30, 2004. 1 After receipt of post-hearing briefs,
the matter was submitted for decision on June 8, 2004.
FINDINGS OF FACT
The District is a public employer within the meaning of Educational Employment
Relations Act (EERA or Act)2 section 3540.l(k). CSA is an exclusive representative within
the meaning ofEERA section 3540.l(e). CSA represents three types of supervisors in the
Operational Support Supervisors (OSS) bargaining unit: maintenance, transportation and
cafeteria supervisors.
The District's previous administrative office included a cafeteria for building staff and
visitors. The Nutri Cafe was supervised by Sue Ellen Garcia (Garcia), Site Supervisor I, a
classification included in the OSS bargaining unit.
The Nutri Cafe provided breakfast, lunch and snacks, and some catering services for
meetings held in the building. Breakfast foods included pastries, muffins, toast, croissants,
cereal, yogurt, coffee and juice. Lunch consisted of a salad bar, soup, sandwiches and a daily
special, typically a hot entree. The daily special was prepared elsewhere and was heated in the
cafe. Snacks included potato chips, candy and pastries. Catering was limited to pastries,
coffee, sandwiches and salad. The Nutri Cafe had a microwave, soup pots and a counter
warmer, but did not include a stove, vents, oven or a deep fryer. 	Cafe receipts averaged $300
per day.
1As plans for the Bistro continued to evolve, the new job classifications were also
modified. On February 5, 2004, the District adopted a revised classification of Manager, Serna
Center Restaurant Operations, after consolidating the duties of the two classifications at issue
in the unit modification petition. At the commencement of the hearing, the Petitioner moved to
amend the petition to substitute the classification of Manager, Serna Center Restaurant
Operations, for the two classifications identified in the petition. The motion was granted.
2EERA is codified at Government Code section 3540, et seq.
2

The daily menus were developed jointly by Garcia, Marc Lemieux (Lemieux), Director
of Nutrition Services, and the area supervisor.3 The Nutri Cafe supervisor had a little more
latitude in selecting food vendors than school cafeteria supervisors. Lemieux and the area
supervisor assisted Garcia in choosing food product vendors. Most vendors were selected from
those used by the District to provide food products to the school cafeterias. Garcia had no
independent authority to select a vendor. No formal staff training was performed in the Nutri
Cafe. At one time, Garcia supervised three classified employees, but Nutri Cafe staff was
reduced to two employees.
Before the new District office building was completed, Garcia was told that she would
transfer to the new facility. 	Later, Garcia was informed that the District planned to operate a
restaurant facility and would need a chef and operations manager.
Garcia currently works as the cafeteria site supervisor at Father Keith B. Kenny
Elementary School (Kenny Elementary School). She is also responsible for preparing the
paperwork and cafeteria cash deposits for three other elementary schools and five pre-
school/childcare sites. The daily report tracks student meals in the reimbursable meal program.
Other paperwork includes reports on production, inventory and temperature logs. Meals and
snacks for the pre-school/childcare sites are delivered by van from Kenny Elementary School.
The cafeterias at the other elementary schools prepare student meals at those sites.
Strict federal and state guidelines govern nutritional requirements. School menus are
determined by nutritionists in the Nutrition Services office. Most of the food is delivered to
the school sites frozen where it is heated and served. Other food items are packaged ready to
serve. The cafeteria kitchen includes an oven, stove, walk-in refrigerator and walk-in freezer.
3There are five area supervisors who report directly to Mr. Lemieux. They are
unrepresented and supervise the school cafeteria site supervisors.
3

The elementary school cafeteria is open twice a day for breakfast and lunch. For
breakfast, Kenny Elementary School serves cereal, yogurt and a hot item, either pancakes,
french toast sticks or sausage on a stick. Lunch choices may include macaroni and cheese, hot
dogs, chicken nuggets, teriyaki beef clunkers, deli sandwiches, salad bar, fruit and vegetables.
Some of the vegetables arrive precut, while other vegetables, such as cucumbers, must be
peeled and sliced.
Garcia supervises five employees at Kenny Elementary School, including the person
who drives the van and delivers food to the preschool/child care sites. Garcia counsels
employees if there is a problem, but employee discipline is handled by the area supervisor.
Garcia writes evaluations and provides input to the area supervisor in hiring decisions.
Deanna Mitchell (Mitchell) is employed by the District as a Site Supervisor III at
Sacramento High School. This classification is also included in the OSS bargaining unit.
Mitchell is responsible for meals at the high school and lunches for a small program known as
New Dimensions. She also prepares the paperwork and deposits for four elementary schools.
There are more food choices for students at the high school, but menus must still meet
federal and state guidelines. The high school cafeteria is also open twice a day. The breakfast
menu consists of heat and serve items including breakfast burritos, french toast, waffles, as
well as cereal, yogurt and bagels. Lunch choices include three hot entrees each day, such as
rice bowls, wraps, turkey and gravy, meatloaf, burgers, french dip and Philly steak sandwiches.
Deli sandwiches are assembled by cafeteria staff. At each station where meals are assembled
there are posted directions and lists of ingredients. Cafeteria staff must strictly adhere to the
posted directions when assembling meals.
Pizza is made in the District's central kitchen and arrives frozen or refrigerated.
Cafeteria staff heat and slice the pizza before it is served. 	Cafeteria workers steam rice and
4

cook some of the meat for the hot entrees such as turkey roasts and roast beef. The high school
kitchen has several ovens, a stovetop, warmers, walk-in freezers and walk-in refrigerators.
Mitchell supervises five employees who assemble the food, set up for breakfast and
lunch, serve and cleanup. Mitchell can counsel employees, but does not have the authority to
impose discipline. She does not conduct training for the staff.
When the District designed the new administrative office building it envisioned that the
Serna Center would also serve as a community center at night. It planned to replace the Nutri
Cafe with a restaurant that would serve employees, visitors and the general public. The
District estimated that the new office building would contain 600 employees during the day
and facilitate many community events at night.
The Serna Center Bistro was expected to make a profit. While school cafeteria fiscal
decisions were made in the Nutrition Services office, the District sought a Bistro manager
experienced in restaurant operations who could analyze costs, spec products, develop and
generate bids, and ensure the profitability of a restaurant and catering department.
On September 10, 2001, the District School Board adopted two classifications to be
assigned to the Bistro: Serna Center Restaurant Operations Manager and Serna Center Food
Production Specialist. Before the Serna Center was completed, and as plans for the Bistro
continued to evolve, these positions were modified. On May 20, 2002, the duties of the Food
Production Specialist were revised and the position was re-titled Executive Chef. In addition,
the operations manager classification was revised and re-titled Manager, Serna Center
Restaurant Operations.
In June 2003, shortly after the Bistro opened, the manager suffered a heart attack and
was out on extended medical leave. The Executive Chef, Andrew Morris (Morris), stepped in
5

as acting manager. Several months later, the manager informed the District that he did not
intend to return to work.
At this time, the District was facing some budget constraints and the Serna Center did
not have the staff as originally projected. Rather than 600 employees in the building,
approximately 450 employees staffed the administrative office. In addition, as a result of
increased security requirements following September 11, the plans to advertise the Bistro to
the general public were not being pursued.
Morris, operating the Bistro as both executive chef and acting manager, recommended
that the positions be combined to facilitate the profitability of the restaurant. The District
agreed and on February 5, 2004, the School Board adopted the final revision to the Manager,
Serna Center Restaurant Operations classification. As previously stated, this is the
classification at issue in the unit modification petition.
Originally hired as the executive chef, Morris was appointed manager in August 2003.
He was educated in Australia in culinary and hospitality fields. Before he was hired by the
District, Morris worked as an executive chef in restaurants and hotels in Australia, England
and California.
The Bistro is open continuously throughout the day and operates as a cafeteria style
restaurant. Customers pick up a tray and select food items from different stations. Menu items
are cooked from scratch and some items are cooked to order per customer requests. Cafeteria
workers serve the hot food entrees. The hot breakfast choices may include scrambled eggs,
blueberry pancakes, french toast, ham and cheese frittata, quiche, biscuits and gravy, sausages,
bacon and a daily selection of potatoes served as hash brown potatoes, crispy potatoes with
onions and peppers or scalloped potatoes. Customers may also select muffins, pastries, bagels,
toast, juices and hot beverages.
6

An extensive lunch menu offers a salad bar with two soup options and a sandwich bar.
Hamburgers, garden burgers, turkey burgers, hot dogs, chicken sandwiches, french dip and
grilled cheese sandwiches are made to order. A healthy choice selection is available daily, as
are two rice bowl options. The chefs feature is prepared fresh daily and has included roast
beef, chicken chow mein, barbecue spare ribs, chicken and mushroom pot pie, roast turkey,
baked cod, Thai chicken and coconut curry, roast tri tip and chicken fried steak. Other items
may be selected from self-serve stations such as deli sandwiches, chips, pastries, desserts and
drinks.
Morris is responsible for the profitability of the Bistro. He tracks purchases and
prepares a monthly inventory so he can determine food costs. He developed fiscal reporting
forms and graphs from which he determines his business projections. Morris negotiates with
vendors on a daily basis, pushing them to provide quality products at the best price. Bistro
receipts have continually increased and the Bistro currently takes in approximately $1500 per
day.
The Bistro's menus are not limited by federal and state guidelines as are those in the
school cafeterias. Morris develops his menu selections based on sales. If an item is popular
and provides a value for the money, it stays on the menu. Morris has surveyed his customers
and based on the results made changes in menu selections and Bistro operations.
Morris follows some of the District's purchasing procedures and policies, but he has
been given the authority to interview and select any vendor. He developed his own vendor
purchasing guidelines which emphasize price, quality and quantity. When Bistro customers
expressed a preference for expanded coffee offerings, Morris interviewed coffee vendors and
selected a vendor to provide coffee for an espresso island. Morris' recommendation was
7

approved by Lemieux and the Bistro now offers customers approximately 20 different types of
coffee.
Morris works at least 60 hours per week and represents the Bistro in the District and the
community. He deals with everyone from the superintendent on down, including companies,
community and advocacy groups, and educational organizations. Lemieux testified that Morris
performs the same functions in operating the Bistro that he does in overseeing Nutrition
Services, but "in microcosm."
Morris has implemented a number of programs in Bistro operations and catering. He
initiated a take-home dinner service to rival grocery store takeout, but determined that the
service was not meeting expectations. Originally open until 5:30 p.m., Morris decided based
on sales to close the Bistro at 4:00 p.m.
School sites are not required to use the Bistro for their catering needs. Morris began
promoting catering to the school sites and the community. Morris deals with community and
advocacy groups on a daily basis and oversees the use of one meeting room. Catering services
have continued to grow and now Morris caters events for groups outside the building.
Nutrition Services has a written safety policy and administers a training program for
cafeteria workers covering safety, sanitation and food-born illnesses. These policies are not
applied to Bistro employees. Lemieux testified that Morris has "complete autonomy" in
operating the Bistro. Morris is responsible for training Bistro employees. After he was hired,
Morris wrote and copyrighted a 150-page food safety training manual based on a system
developed by NASA for the space program. The manual covers food handling, preparation,
storage and serving; personal hygiene standards; food contamination; and cleaning and
sanitation. While Lemieux is responsible for health inspection issues in school cafeterias,
Morris is personally responsible for compliance with local health department regulations.
8

Morris also wrote a kitchen equipment training manual to train staff on effective and
safe procedures for assembling, operating and cleaning all of the equipment in the Bistro. The
equipment manual was developed after researching manufacturer's equipment specification
manuals and based on Morris' own experience in using commercial kitchen equipment. The
equipment in the Bistro kitchen includes a rotisserie, Hobart mixer/doughpress, meat slicer,
deep-fry unit, braising charbroiler, full burner range, flat-top grill, cheese melter, ovens,
combination steamer, braising unit, food holding warmer units, walk-in refrigerator and walk-
in freezer. Morris determines whether Bistro employees have satisfactorily completed training
under both his food safety and equipment training policies.
Morris supervises nine classified employees, including at least one cook/baker. He
handles disputes and takes corrective action including counseling, reprimand and disciplinary
action. Morris prepares a staff schedule each week primarily in response to catering demands.
He has often adjusted shift start and end times and has added hours to part-time employees and
authorized overtime. Morris recently changed the shift start time for a full-time employee by
using the procedures set out in the classified collective bargaining agreement.
POSITIONS OF THE PARTIES
Petitioner asserts that the Bistro manager classification is a supervisor, not a manager,
and should be included in the OSS bargaining unit. CSA contends that like other school
cafeteria supervisors this position operates a cafeteria. This classification does not have the
authority to formulate policies and administer programs. Rather, the duties of the position
involve the application of professional skills and training in accordance with established
policies of the District and standard practice.
The District asserts that the position meets the definition of a management employee
under EERA. The District contends that the Bistro manager's duties are fundamentally
9

different than those of school cafeteria supervisors who follow proscribed menus and serve
pre-packaged, pre-cooked and frozen entrees. Further, school cafeteria supervisors have no
catering responsibilities. The Serna Center Bistro manager is completely responsible for the
success of the Bistro and has complete autonomy in operating the restaurant. This extends to
formulating policies and administering programs such as developing and implementing
training programs, designing business and fiscal reports, generating menus, creating and
expanding a catering department and developing vendor purchasing guidelines.4
CONCLUSIONS OF LAW
EERA section 3540.l(g) defines a management employee for purposes of the Act as
"any employee in a position having significant responsibilities for formulating district policies
or administering district programs." Since managerial employees are excluded from collective
bargaining rights under EERA, "great care must be exercised in determining who shall be
considered a management employee." (Oakland Unified School District (1977) EERB
Decision No. 15.)5 The facts must establish that the employee is clearly allied with
management. (Paramout Unified School District (1977) EERB Decision No. 33.)
t the commencement of the hearing, the District moved to dismiss the unit	A
modification petition on the grounds that the petition had not been timely pursued; CSA had
not amended the petition prior to the hearing to identify the proper classification; and
Petitioner did not provide proof of majority support. The motion to dismiss, taken under
submission at the hearing, is denied. The parties agreed to place the petition in abeyance until
the Bistro began to operate and the incumbent actually performed the prescribed duties.
Further, the District did not show that the substitution of classifications at the hearing
prejudiced the District. Finally, the Board has the discretion to determine whether proof of
majority support is required under PERB Regulation 32781(e). (PERB regulations are codified
at Cal. Code Regs., tit. 8, sec. 31001, et seq.) The Board typically requires such a showing
when a unit modification petition seeks to add a substantial number of employees to an
established bargaining unit. (State of California, Department of Personnel Administration
(1989) PERB Decision No. 776-S.) In the present case, the Board did not require Petitioner to
provide proof of majority support.
5Prior to 1978, PERB was known as the Educational Employment Relations Board
(EERB).
10

Consequently, although EERA's definition of a manager is written in the disjunctive,
the Board determined that an employee must both formulate district policies and administer
district programs to be excluded as a manager. (Lompoc Unified School District (1977) EERB
Decision No. 13; Hartnell Community College District (1979) PERB Decision No. 81
(Hartnell CCD).) In Hartnell CCD, the Board held:
The formulation of policy contemplates the exercise of
discretionary authority to develop and modify institutional goals
and priorities. The administration of programs contemplates
effective implementation of the policy through the exercise of
independent judgment.
In Unit Determination for Employees of the California State University and Colleges
(1981) PERB Decision No. 173-H, the Board found the university's education television
station manager to be a management employee. The station manager was responsible for the
overall development and direction of a campus public television station. The manager
coordinated and supervised the financial affairs of the station; recommended station policies
and procedures; evaluated the effectiveness of the station operations in light of university
policy; supervised staff in the technical aspects of programming; and developed policies and
procedures to ensure satisfactory student access to the station.
Similarly, the Bistro manager has autonomy over Bistro operations and the catering
department. Morris has altered the Bistro's hours of operations and implemented a take-out
dinner service. He has expanded catering services within the District and extended catering to
private events offsite.
The authority to use independent judgment to direct a change in practice and utilizing
surveys to identify issues and make resulting changes have been determined to be
characteristics of a management employee. (Berkeley Unified School District (1979) PERB
11

Decision No. 101 (Berkeley USD); Ventura County Community College District (1980) PERB
Decision No. 139 (Ventura Co. CCD).)
Morris is responsible for the profitability of the Bistro and fiscal considerations
influence many of the decisions he makes in Bistro operations and catering services. Morris
negotiates with vendors on a daily basis following his own vendor purchasing guidelines to
ensure the best price, quality and quantity. He uses his independent judgment to develop
menus based on sales and popularity of a particular food selection. He has also surveyed his
customers and based on the results made changes in menu selections and Bistro operations.
The Bistro now operates an espresso island in response to customer interest.
Petitioner likened the Bistro manager to the manager of maintenance and operations in
Franklin-McKinley School District (1979) PERB Decision No. 108. Despite responsibility for
custodial services, maintenance and grounds operations, the transportation department and
warehousing operations, the Board found this classification was not a management employee.
Although the manager assisted in the preparation of the transportation handbook and drafted a
walking distance policy, these policies were reviewed by committee and adopted by the school
board. Further, the manager had no authority to accept or reject a bid. His relationship with
outside contractors was limited to providing them access to school facilities and obtaining
information on a contractor's reliability in the community and providing the information to his
supervisors.
In contrast, Morris has independently developed and implemented policies concerning
safety and use of kitchen equipment. He uses these policy manuals to train Bistro staff and
ensures they have satisfactorily completed training. Morris also wrote and utilizes his own
vendor purchasing guidelines.
12

Furthermore, Morris has the authority to discipline employees, change employee
schedules in response to workload demand, authorize overtime, and apply the provisions of the
classified collective bargaining agreement to alter a full-time employee's hours of work.
Evidence that an employee serves as a spokesperson also demonstrates qualities of a
management employee. (Berkeley USD; Ventura Co. CCD.) Morris represents the Bistro in
the District and the community. He deals directly with individuals from the superintendent on
down. He meets with representatives from companies, community and advocacy groups, and
educational representatives on a daily basis. He is also responsible for coordinating
community use of a meeting room and any requested catering services.
The evidence demonstrates that the Bistro manager has the authority to exercise his
discretion to develop and implement policies affecting District operations. He also uses his
independent judgment in administering Bistro operations and the catering department. As the
Bistro manager has significant responsibilities for formulating policies and administering
programs, the position is found to be a management employee and is excluded from the
bargaining unit.
PROPOSED ORDER
Based on the foregoing findings of fact, conclusions of law and the entire record in this
matter, the unit modification petition in Case No. SA-UM-704-E, Classified Supervisors
Association and Sacramento City Unified School District, to modify the bargaining unit to
include the Manager, Serna Center Restaurant Operations classification in the Operational
Support Supervisors unit is hereby DENIED.
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Right of Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Board itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
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 Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Hearing Officer
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