Burlingame Elementary School District (PERB 1847E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
R
BURLINGAME ELEMENTARY SCHOOL
DISTRICT,
Employer,
and
CALIFORNI	CALIFORNIA	A SCHOO	SCHOOL	L EMPLOYEE	EMPLOYEESS
ASSOCIATION	ASSOCIATION,,
Exclusiv	Exclusivee Representative	Representative..
Case No. SF-UM-611-E
PERB Decision No. 	1847
J u n e 	1 3 , 	2006
Appearances: Miller, Brown & Dannis by Lawrence M. Schoenke, Attorney, for Burlingame
Elementary School District; Christina C. Bleuler, Attorney, for California School Employees
Association.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on exceptions filed by the Burlingame Elementary School District (District) to a
Board agent's proposed decision (attached) dismissing the unit modification petition filed by
the District to remove the classification of benefits/payroll specialist from the bargaining unit
and maintain it as a confidential position under Section 3540.l(c) of the Educational
Employment Relations Act (EERA).
The Board has reviewed the entire record in this case and finds the Board agent's
proposed decision to be free of prejudicial error. The Board adopts the proposed decision as
the decision of the Board itself.
EERA is codified at Government Code section 3540, et seq.

ORDER
It is hereby ORDERED that the request for unit modification in Case No. SF-UM-611-E
is hereby DENIED.
Members Shek and McKeag joined in this Decision.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD 	R
BURLINGAME ELEMENTARY SCHOOL
DISTRICT,
Employer,
And
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,
Exclusive Representative.
REPRESENTATION
CASE NO. SF-UM-611-E
PROPOSED DECISION
(April 5, 2005)
Appearances: 	Miller, Brown and Dannis, by Lawrence Schoenke, for Burlingame Elementary
School District: Christina Bleuler, Staff Attorney, for California School Employees
Association.
Before Roger Smith, Labor Relations Specialist.
PROCEDURAL HISTORY
On March 30, 2004, Burlingame Elementary School District (District or Employer)
filed a unit modification petition with the Public Employment Relations Board (PERB or
Board) pursuant to PERB Regulation 32781(b)(l) and (b)(4)(C).1 The petition sought to
PERB regulations are codified at California Code of Regulations, Title 8, section
31001 et seq. PERB Regulation 32781(b)(l) and (4)(C) provide:
(b) A recognized or certified employee organization, an
employer, or both jointly may file with the regional office a
petition for unit modification:
(1) To delete classifications or positions which by virtue of
change in circumstances are no longer appropriate to the
established unit because said classification(s) or position(s) are
management, supervisory, confidential, not covered by TEERA,
EERA, HEERA or Ralph C. Dills Act, or otherwise prohibited by
statute from inclusion in the unit;
(4) 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,

exclude a benefits payroll specialist position from a wall-to-wall classified employee
bargaining unit represented by California School Employees Association and its Chapter 46
(CSEA) as a confidential position within the meaning of section 3540.l(c) of the Educational
Employment Relations Act (EERA).2
A determination was made that the petition was timely filed and two settlement
conferences were held on July 14 and September 8, 2004, in attempts to resolve the dispute.
Settlement efforts were unsuccessful and a hearing was conducted on January 7, 2005. 	After
the submission of post hearing briefs, the case was submitted for decision on March 16, 2005.
FINDINGS OF FACT
The District is a public school employer as defined at section 3540.l(k) of EERA and
CSEA is a recognized employee organization as defined at 3540.1(1). 	The District is composed
of five elementary schools, a middle school and a charter school. There are approximately
2370 students enrolled at the District. The District employs approximately 170 certificated
employees and 45 classified employees. 	The certificated employees are represented by the
Burlingame Education Association (BEA) and CSEA represents all classified employees.
The District management structure is headed by the Superintendent, Dr. Sonny Da
Marto (Da Marto). Two assistant superintendents report to Da Marto, one for curriculum and
one for business. Additionally, there are two other management positions, the director of
confidential, not covered by TEERA, EERA, HEERA or Ralph
C. Dills Act, or otherwise prohibited by statute from inclusion in
the unit, provided that:
(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, Section 40130
for Ralph C. Dills Act, Section 51026 for HEERA, or Section
71026 for TEERA.
2 EERA is codified at Government Code section 3540 et seq.
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special education and the accounting supervisor. Also working at the District office are three
confidential employees, one certificated employee and five classified employees.3
Assistant Superintendent for Business Jing-Jing Wang (Wang) has one confidential
secretary report to her as well as Accounting Supervisor Connie Ngo. Reporting to Ngo are an
accounting technician and a benefits/payroll specialist, the position in dispute in the instant
case currently held by Sally Padilla.
Da Marto acts as the District's personnel director in addition to his general role as
superintendent. Reporting directly to Da Marto are the two other confidential positions, his
Administrative Assistant, Eloise Freely (Freely), and Personnel Administrative Assistant,
Victoria Ouye (Ouye). Da Marto has served as superintendent since 2000. In those five years
he has set at the negotiating table several times with both CSEA and BEA. Assisting Da
Marto, and accompanying him to negotiations as the District's team, have been Wang and a
school site principal.
The District office is located away from all school sites. Upon entering the District
office, a receptionist desk greets the public. Immediately behind the receptionist's work space
is a central work area with six foot high partitions in modular furniture design dividing this
space into six individual cubicles. Three of the cubicles are used for general office work such
as space for printers, photocopiers and fax machines, mail boxes or space for testing. This
central work area is surrounded on three sides by nine private offices occupied by ten of the
fourteen employees at the District office. 	The desks in the central work area are six to ten feet
from the walls or doors of the nine private offices.
Sally Padilla's work location is in one of the cubicles just across from Assistant
Superintendent Wang's office. 	The confidential employee assigned to assist Wang, Pat De
The school sites each employ a site principal and the middle school also has a vice
principal.
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Moulin, works directly across from Padilla in another cubicle. 	The other two confidential
employees, Freely and Ouye, work in separate walled offices.
Padilla has been employed by the District for fourteen years. 	Her first assignment with
the District was as payroll technician. In 1994, the title of her job was changed to benefits
payroll specialist. The position was designated as confidential until October 2000. 	She
indicated that her duties have remained similar since she was given the benefits portion of her
assignment in 1994.
In January 2000, Da Marto became superintendent after moving over from San Mateo-
Foster City School District where he served as Associate Superintendent Human Resources. In
October 2000, following difficulty in finding suitable candidates to fill an accountant position
which had recently become vacant, Da Marto, on behalf of the District, reached an agreement
with CSEA to allow for the creation of a new classification of Accounting Supervisor that
would be an excluded position. 	(The accountant position had been a position within CSEA's
unit.) This allowed the District to increase the proposed salary and attract more qualified
candidates. In exchange, the District agreed that the position which Padilla held would be
assigned to CSEA's unit and become a non-confidential position.
It was shortly after this agreement was reached that Da Marto indicated he felt remorse
regarding having given up the benefits payroll specialist to CSEA's unit. He indicated he
checked with Padilla before agreeing to the switch and she indicated she was not concerned
with the agreement. 	It was the upcoming negotiations in 2001 which required additional staff
time that convinced Da Marto that he had made a mistake.
In 2001 the District was negotiating with both CSEA and BEA and in November of that
year an issue arose that prompted Da Marto to attempt to regain Padilla's position as a
confidential position. 	The background of this issue is somewhat muddled by the contradictory
A	
4

and confusing testimony of Da Marto, Wang, Padilla and CSEA Labor Representative Diana
Hull. There is no dispute that Padilla was asked to assist then Personnel Assistant Mary Lycett
gathering information relative to the longevity of teachers' tenure with the District. 	Padilla
acknowledges that she did prepare a report for Lycett that demonstrated the longevity and
salary range, voluntary deductions, social security information, and District contributions to
State Teachers Retirement System and benefit plans. Padilla disputes that the District ever
explained the reasons given for her preparing a longevity list of teachers or that she had any
discussions about the assignment with Da Marto.
Da Marto contends that he called Lycett and Padilla into his office to discuss the
assignment and that he had subsequent conversations with Padilla and Lycett about the survey
which ended up as background material for a proposal to BEA. The District proposed
eliminating full-time benefits for part-time certificated employees in exchange for adding
longevity steps to the BEA agreement.
At almost the same time Padilla was sitting across the bargaining table from Da Marto
as a member of CSEA's negotiating team. 	CSEA and the District had reached a tentative
agreement on a new agreement. 	This agreement included language confirming the assignment
of a benefits payroll specialist to the unit. 	However, following news of BEA's settlement
CSEA through its then President, Mary Ann Mealhow, advised Da Marto that she was not sure
CSEA membership would ratify the agreement without some of the same longevity increases
that BEA had obtained. This infuriated Da Marto, both because he did not believe BEA's
agreement with the District was public information and because CSEA sounded like it was not
going to support ratification of the tentative agreement it had reached after many hours of
negotiating. Da Marto indicated that he believed Padilla, who had been selected to become the
5

new CSEA Chapter President in December 2001, was the source of CSEA's knowledge
regarding the BEA-District settlement.
Padilla indicated that she did not provide any information to CSEA regarding the
District's agreement with BEA to add longevity pay to the agreement because she had none.
She believed Mealhow learned of the BEA agreement through her receipt, as CSEA President,
of the District's Board packet prior to a Board meeting in November 2001. 	The upshot of the
Superintendent's remorse at agreeing to release the payroll/benefits specialist classification and
sense of betrayal by Padilla was the filing of an unfair practice charge against CSEA on
January 18, 2002. (Unfair Practice Charge No. SF-CO-601.) The charge asserted that CSEA
was violating EERA by representing Padilla and refusing to release her position from the
bargaining unit. On March 25, 2002, the charge was dismissed. The Board upheld the
dismissal in Burlingame Elementary School District (2003) PERB Decision No. 1510.
On a nearly simultaneous track was an unfair practice charge filed by CSEA on
February 21, 2002. (Unfair Practice Charge No. SF-CE-2249.) This charge alleged that the
District sought to have Padilla's position removed from CSEA's unit less than a month after
agreeing to the new contract. The charge further asserted that the District would not respond to
inquiries or requests from Padilla while acting as CSEA Chapter President, and refused to
grant her release time to deal with internal CSEA matters. The District was in effect
challenging Padilla's status to remain represented by CSEA.
A complaint issued in CSEA's charge and PERB conducted an informal settlement
conference. A settlement of the charge resulted. On September 3, 2002, the parties signed an
agreement that acknowledged that Padilla's position would stay in CSEA's unit and that
certain duties enumerated on the benefits payroll specialist duty statement would be removed.
66

The District according to Da Marto, left the settlement conference with the feeling that it had
"lived to fight another day." That day came when it filed the instant petition.
Benefits/Payroll Specialist
Padilla's duties as referenced earlier have not changed significantly over her fourteen
years with the District. There was no evidence provided by the District as to Padilla's duties
prior to 2000 other than a duty statement. Padilla testified that she did not assist the District in
preparing proposals for bargaining with either CSEA or the BEA. 	She further indicated that
she did not provide confidential materials to any other District staff in response to grievance
defenses.
The primary duties of the benefits/payroll specialist are to process the monthly payroll
of all District employees; make any changes to employees' pay, hours, classification,
withholding, or benefits plans; coordinating with Personnel Administrative Assistant, Ouye,
changes in status of employees whether on salary schedules, sick leave accrual, child support
withholding, income tax withholding, or other personnel related matters that would affect an
employee's pay; maintaining worker's compensation records; communications with County of
San Mateo and state agencies to clarify payroll and benefits procedures; and exchange
information and provide answers to employees with questions regarding their pay checks. In
exercising these duties, Padilla has access to two computers at her work station. One of the
computers, a PC, has a dedicated line with access to the county office, CalPERS in Sacramento
and the medical plan providers. Wang and Ngo also have dedicated lines in their offices with a
PC with the same connections. In addition, Padilla has the District-wide Macintosh used for
intra-District e-mails and file maintenance. 	All District staff and school site employees have a
Macintosh.
7

Positions of the Parties
The District contends that its decision to redesignate the benefits/payroll specialist as a
regular classified employee in 2000 was a regrettable mistake, and urges that based on the
workload of the superintendent, assistant superintendent of business, and accounting
supervisor, the District needs to have an additional staff position available as a resource to
assist in preparing and analyzing bargaining proposals. The District argues that it entrusted
Padilla with information relative to a proposal made to BEA that impaired the District in
negotiations with CSEA. Based on that sense of betrayal, the District felt it could not rely on
Padilla.
The District also argues as in Imperial Unified School District (1987 PERB Decision
No. 647 (Imperial), it is a small district that requires the limited number of staff to take on a
variety of functions. 	The District, in arguing for the benefits payroll specialist position,
contends that "it is at a great hindrance to be unable to ask the position for advice regarding
how the District might approach negotiation .. ."
The District acknowledges that the benefits/payroll specialist has not been performing
"confidential duties" but argues that PERB must take a different look at the situation as it
exists in this District. 	The District urges rather than applying the standard review of tasks
performed, PERB analyze this position as it has in cases where the incumbent had yet to
perform the duties that would be assigned to the classification. 	The District relies in part on
Calexico Unified School District (1990) PERB Decision No. 800 (Calexico) and Hemet
Unified School District (1990) PERB Decision No. 820 (Hemet). Otherwise, the Employer is
placed in a "Catch-22" where it needs someone to perform confidential duties but can not
assign them because the duties are not currently in the duty statement.
008

CSEA argues that Padilla never has performed confidential duties either prior to 2000
or since the District's agreement to include the benefits payroll specialist in the CSEA unit.
CSEA asserts the assignment to calculate BEA longevity pay increments, if it was a
confidential assignment, should not have been given Padilla because the District had already
agreed that she no longer was a confidential employee. Further, CSEA contends that this case
is not like Calexico or Hemet in that those two cases represented fact situations dissimilar to
the instant one. Padilla has worked for fourteen years in ostensibly the same position and
unlike Calexico is not in a recently created position yet to face a round of bargaining or Hemet
where the secretary's supervisor was absent and she had yet to perform confidential duties.
CSEA stresses the District's repeated agreements to include the position in CSEA's unit
(2000), through contract language (2001), and resolution of unfair practice charges (2002),
culminating in the removal of any reference to confidential duties from the statement of work
duties. CSEA urges the petition be dismissed.
ISSUE
Is the benefits payroll specialist classification a confidential position as defined in
EERA section 3540.l(c)?
CONCLUSIONS OF LAW
In drafting the EERA, the Legislature denied confidential employees rights under the
Act for the purpose of guaranteeing the orderly and equitable development of employer-
employee relations. (Sierra Sands Unified School District (1976) EERB Decision No. 2
(Sierra Sands)4) EERA section 3543.4. provides, in pertinent part:
A person serving in a ... confidential position may not be
represented by an exclusive representative. . . . 	A representative
Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
99

may not be permitted by a public school employer to meet and
negotiate on any benefit or compensation paid to persons serving
in a . . . confidential position.
EERA section 3540.l(c) describes a "confidential employee" as:
[a]ny employee who is required to develop or present
management positions with respect to employer-employee
relations or whose duties normally require access to confidential
information that is used to contribute significantly to the
development of management positions.5
In interpreting section 3540, l(c), the Board has stated its assumption that the employer
should be allowed a "small nucleus" of loyal individuals to assist the employer in developing
the employer's positions in matters of employer-employee relations; that nucleus of individuals
must maintain the confidentiality of those matters because if they are made public, it would
jeopardize the employer's ability to negotiate from an equivalent position. (Sierra Sands.)
However, the designation of an employee as confidential is not done lightly, and
because of the serious impact of such a determination, an exclusion from a broad grant of
rights under EERA must be strictly construed. (Los Rios Community College District (1977)
PERB Decision No. 18 (Los Rios)). In Fremont Unified School District (1976) EERB
Decision No. 6 (Fremont), the Board established a standard requiring that confidential
employees have access to and possess information about the employer's employer-employee
relations, which includes, inter alia, negotiations and the processing of employee grievances.
Further clarifying this standard, the Board in San Rafael City Schools (1977) EERB Decision
No. 32, required the employee to have access to or possess confidential information in the
regular course of duties performed. Although the frequency of these duties is not controlling,
the access or possession must occur within the regular course of the employee's duties and be
more than a happenstance. (Id.) More than a fraction of the employee's time must be spent on
5 This revised definition of confidential employee became effective January 1, 2004.
10

confidential matters. (Campbell Union High School District (1978) PERB Decision No. 66,
(Campbell) citing Los Rios.)
While I note the change in the definition of confidential employee under EERA has not
yet been thoroughly reviewed by the Board, cases decided under the Higher Education
Employer-Employee Relations Act (HEERA),6 which contains a definition of confidential
employee virtually identical to that in the new EERA section, have applied the same principles.
In In the Matter of Unit Determination for Technical Employees, Lawrence Livermore
National Laboratory, of the University of California Pursuant to Chapter 744 of the Statutes of
1978 (Higher Education Employer-Employee Relations Act) (1983) PERB Decision No.
241b-H, e.g., the Board quoted much of the language from Sierra Sands and cited Fremont and
Campbell with approval.
In Mendocino County Office of Education (2002) PERB Decision No. 1505
(Mendocino), the Board found that a confidential employee is any employee who "in the
regular course of his or her duties, has access to, or possesses information relating to, his or her
employer's employer-employee relations." PERB found the positions in that case were not
confidential because the employees did not have access to or possess information concerning
the county's employer-employee relations in the regular course of their normal duties. Here,
other than the one time in 2001, for which there is disputed testimony, the testimony shows
that Padilla did not have access to and possession of information concerning the District's
employer-employee relations in the regular course of her duties.
The Board in Mendocino as well as the District in its argument in this case cited
Calexico. In Calexico, the employer had created a new position of assistant personnel clerk
(APC). The APC was supervised by a confidential employee. The APC was not actually
HEERA is codified at section 3560, et seq.
11

involved in grievances or bargaining because she had only been an employee for five months
and no grievances had been filed and no bargaining had yet occurred. 	She maintained the
employee personnel files and some of her duties were shared with her supervisor. Because of
the interchangeability of duties, the duty statement of the APC and the likelihood based on the
undisputed testimony that her duties eventually would perform confidential duties, the Board
found her position was confidential.
The District also cited Hemet. 	The position at issue there was secretary to the director
of special education. 	She was to maintain grievance files, take correspondence related to
grievances, gather information relating to grievances and type grievance responses. The Board
noted:
She is also required to handle, as part of her routine duties,
confidential administrative materials that pertain to collective
bargaining, including reports and memos about bargaining
proposals. 	She has not performed these duties during her tenure,
only because there have been no grievances and because her
supervisor's medical problems preclude him from participating in
the District's bargaining team during his regular rotation.
The Board found the secretary to be confidential because she and her supervisor were the only
employees with access to confidential files.
In those cases, the classifications at issue did not have the same access and place in the
flow of information as Padilla does here. However, in the only circumstance during her
fourteen year career that the District could reasonably assert she had access to confidential
information that was used to contribute significantly to the development of management
positions, there is a dispute as to what Padilla knew. I do not find it necessary to resolve the
dispute as to the 2001 assignment involving longevity calculations for a proposal to BEA, as
the classification at that time was not a confidential position.
12
'

As to the District's argument that small districts require all hands to help, unlike
Imperial where there was evidence of the interchange of assignments in that small office that
-.
warranted the designation of the receptionist position as confidential, there is no evidence in
this case of what other support staff do, or that they share duties or responsibilities. 	The fact
that the management team is overworked and an additional confidential position is needed does
not, no matter how compelling the argument, warrant a finding that this classification should
be designated as confidential. There is no evidence that the benefits payroll specialist meets
the definition of confidential employee as delineated in EERA section 3540.l(c).
PROPOSED ORDER
For the reasons stated above, the Petitioner has failed to demonstrate that the
classification of benefits/payroll specialist meets the definition as defined at Government Code
section 3540.1 (c). Therefore the petition is HEREBY DISMISSED.
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
Public Employment Relations Board (PERB or 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
13

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).)
By
Roger 	Smith
Hearing 	Officer
14
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