State Employer-Employee Relations Act Unit Determination Hearings (Association of Special Agents of the Department of Justice/California Department of Forestry Employees Association) (PERB A078S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
ASSOCIATION
	OF
	SPECIAL
	AGENTS 	OF
	THE
DEPARTMENT
	OF
	JUSTICE,
Employee
	Organization,
APPELLANT,
and
CALIFORNIA
	DEPARTMENT
	OF
	FORESTRY
EMPLOYEES
	ASSOCIATION,
Employee
	Organization,
APPELLANT.
State
	Employer-Employee
	Relations
	Act
Unit
	Determination 	Hearings.
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Case 	Nos. 	S-R-5-S
S-R-6-S
PERB
	Order
	No. 	Ad-78-~
ADMINISTRATIVE
	APPEAL
October
	17
1
	1979
)
)
)
)
)
)
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)
)
)
)
________________________
)
Appearances:	
Russell
	L.
	Richeda ,--Attorney
	(Carroll,
	Burdick	
&
McDonough)
	for 	Association 	of 	Special
	Agents
	of 	the
	Department
of 	Justice
	and
	California
	Department
	of 	Forestry
	Employees
Association;
	Rfchard 	T. 	Baker, 	Executive
	Assistant 	for
Professional
	Engineers 	in
	California
	Government
	(amicus);
Barbara
	T.
	Stuart, 	Assistant
	Chief 	Couniel, 	Governor's
	Office
of
	Employee
	Relations, 	for
	State 	of 	California
	(amicus).
Before 	Gluck,
	Chairperson;
	Gonzales 	and 	Moore, 	Members.
DECISION
The
	Association 	of 	Special
	Agents
	of 	the
	Department
	of
Justice
	and
	the
	California
	Department
	of 	Forestry
	Employees
Association 	(hereafter 	the 	Associations) 	appeal
	from 	a
determination
	by
	the 	Public
	Employment
	Relations
	Board
(hereafter
	Board)
	General 	Counsel
	that
	evidence 	relevant 	to
exclusions
	from
	representation 	units 	of 	classifications
	and

individuals 	asserted 	to
	be
	managerial, 	supervisory
	or
confidential
	must
	be
	presented 	in
	so-called
	Phase
	III
proceedings
	and
	that
	such
	evidence
	already 	in
	the
	Phase
	II
record
	is
	not
	admissible.l	
The
	Associations'
	position
	is
that
	evidence
	offered 	in
	Phase
	II
	is
	responsive
	to
	the
exclusionary
	claims
	of
	the 	Governor's
	Office 	of
	Employee
Relations 	(hereafter
	GOER)
	and
	that
	the 	requirement
	that
	such
evidence
	be
	produced
	anew
	is
	unnecessary
	and
	burdensome.
The
	general 	counsel's
	adverse
	ruling
	is
	predicated
	on
	his
assertion 	that
	allowing
	Phase
	II
	evidence 	in 	the
	Phase
	III
hearing
	would
	be
	harmful
	to 	the
	entire
	SEERA
	unit
	determination
process,
	cause
	additional
	problems
	in 	the
	future
	and 	would 	be
contradictory 	to 	the
	purpose
	of 	separating
	Phase
	II
	and
	Phase
III
	issues.
	The
	general 	counsel
	also 	indicates 	that 	his
procedure
	would
	provide 	to
	the
	Board
	itself
	a
	cleaner,
	more
compact
	and
	understandable 	record.
The 	Board
	sustains
	the 	Associa~ions' 	objections 	to 	the
lThe
	general 	counsel
	is
	conducting
	a
	single, 	consolidatedhearing
	emcompassing
	all
	unit 	petitions 	filed
	under
	the
	State
Employer-Employee
	Relations
	Act
	(hereafter
	SEERA,
	codified
	at
Gov. 	Code
	sec.
	3512
	et 	seq.).
	However,
	for
	his
	convenience 	in
dealing 	with 	the
	numerous 	and 	complex
	issues 	involved,
	he
divided 	the 	proceeding
	into 	consecutive 	"phases."
	Phase
	II,
now
	completed,
	dealt
	with 	the 	basic 	issues 	of 	appropriateness.Phase
	III,
	currently 	in 	progress, 	deals 	with 	the
	State's
	claim
that 	certain 	classifications
	and
	individual
	employees 	must 	be
excluded
	from
	representation 	units 	pursuant 	to
	SEERA
sections
	3513(c) 	and 	3522 	which
	bar 	managerial, 	supervisory
	and
confidential
	employees 	from 	placement 	in 	such
	units.
2

general 	counsel's 	ruling.
	In
	doing
	so
	it
	is
	mindful
	of
	its
determination 	in
	California
	?tate
	Employees
	Association,
	et 	al
(3/5/79)
	PERB
	Order
	No.
	Ad
	59-S,
	that
	the 	conduct
	of 	the
	SEERA
unit
	determination 	hearings
	was
	within
	the
	discretion 	of 	the
general
	counsel
	and 	would
	not
	be
	interfered
	with
	by
	the
	Board
itself
	absent
	a 	showing
	of
	denial
	of
	due
	process 	or
	some
	other
indication 	that
	the
	parties
	may
	be
	denied
	a
	fair
	and
	impartial
proceeding.
Here,
	the
	general
	counsel
	has
	offered
	no
	specific
	grounds
for 	his
	finding
	that
	the
	SEERA
process
	would
	be
	harmed
	should
Phase
	II
	material
	be
	admitted
	in
	the
	Phase
	III
	hearing.
	While
the 	general 	counsel's
	concerns
	may
	be
	genuine, 	they 	should 	not
be
	supported
	at
	the
	expense
	of 	fegsible
	and
	economical
participation
	by
	the
	parties
	whose
	interests
	are
	likely 	to
	be
adversely 	affected
	by 	an
	unnecessarily
	burdensome
	procedure.
To
	require
	a
	party 	to 	introduce
	a
	second 	time
	evidence
	already
presented 	raises
	the 	strong
	likelihood 	that
	litigation
	costs
will
	increase
	and
	further 	presents 	the
	possibility 	that
witnesses
	used
	in
	Phase
	II
	may
	again
	be
	taken
	from
	their
employment
	duties
	with 	the
	State.2	
Absent 	any
	clear
	evidence
to 	the 	contrary 	providing
	an
	adequate
	basis 	for 	the 	general
2of 	course, 	the 	State
	or 	other
	parties
	may
	recall
	thePhase
	II
	witness 	as
	their
	own,
	to 	offer
	new
	evidence 	or
	torebut 	evidence 	given 	in
	Phase
	II
	which
	is 	relevant 	to 	Phase
	IIIissues
	and 	which
	it
	was
	precluded
	from
	offering 	in 	Phase
	II.
3

counsel's
	concerns,
	his
	requirement
	points 	to
	a
	procedure
	which
meets 	the
	Board's
	test
	of 	procedural
	bias
	announced
	in
California
	State
	Employees
	Association,
	et
	al,
	supra.
Moreover,
	the 	general
	counsel
I s	
ruling,
	absent
	specific
	support
in
	the 	record,
	appears
	contrary 	to
	the
	general
	administrative
law
	principle
	in
	favor
	of
	official
	notice 	of
	records 	of 	the
administrative
	agency.
	(See
	e~g.,
	Gov. 	Code
	section
	11515;
Witkin,
	California
	Evidence
	(1966)
	p.
	35.)
The
	general 	counsel's 	desire 	to
	provide 	the
	Board
	itself
with
	a
	separate
	and
	better
	organized 	record 	of
	Phase	
III
evidence
	is
	appreciated,
	but
	can 	be
	otherwise
	satisfiede
	The
Board's
	burden
	in
	coping 	with 	the
	Phase	
II	
transcripts
	can
	be
lightened
	to
	supportable
	levels
	QY
	requiring
	that
	a
	party
seeking
	to
	utilize
	Phase	
II	
evidence,
	make 	an
	appropriate
	offer
of
	proof 	by	
identifying
	the 	witnesses 	or
	physical
	evidence
relied
	upon 	and
	citing
	the
	specific
	page(s)
	of 	the
	Phase	
II
t~anscript
	where 	such
	evidence
	is
	to
	be
	founa.3 	This
procedure
	will 	also
	serve
	to 	place 	other
	parties
	to 	the 	hearing
on	
full
	notice 	of
	such
	reliance.
ORDER
The
	Public
	Employment
	Relations
	Boards
	ORDERS
	that 	the
appeal
	filed	
by 	the 	Association 	of 	Special
	Agents
	of 	the
3The 	Phase
	II
	record 	exceeds 	27,000 	pages 	and
	it
	would
otherwise 	be
	manifestly
	difficult
	to 	locate 	pertinentexclusionary 	evidence.
4

Department
	of
	Justice
	and
	the
	California
	Department
	of
	Forestry
Employees
	Association
	from
	the
	general
	counsel's
	determination
that
	evidence
	relating
	to 	exclusionary matters 	presented
	in
Phase
	II
	of 	the
	State
	Employer-Employee
	Relations
	Act
	unit
determination
	hearing
	is
	inadmissible 	in
	Phase
	III
	hearings
	is
sustained
	as
	reflected 	hereafter:
The
	Board
	ORDERS
	that
	the
	general
	counsel
	shall,
	upon
request,
	admit
	into
	evidence 	testimony,
	documents
	and
	such
other
	evidence 	introduced
	in
	Phase
	II
	of
	the
	SEERA
	hearings
that
	is
	properly 	admissible
	and
	relevant 	to 	issues 	raised 	in
Phase
	III
	thereof:
	parties
	who
	have
	completed 	Phase
	III
proceedings 	as 	of
	this
	date
	and
	who
	wish
	to
	introduce
	Phase
	II
evidence
	may
	submit
	to
	the
	general
	counsel
	an
	appropriate
motion, 	supported
	by 	good
	cause,
	to
	re-open
	that 	part
	of 	the
proceeding1
	and
It
	is 	further
	ORDERED
	that
	the
	general
	counsel
	shall
require
	each
	party, 	prior
	to
	seeking
	introduction 	of
	Phase
	II
evidence 	in 	the
	Phase
	III
	hearings, 	to 	identify
	the 	witnesses
and/or 	the 	other 	evidence
	offered 	in 	proof
	and
	the
	specific
page(s) 	of 	the
	Phase
	II 	transcript
	wherein 	such 	evidence
	may 	be
locatedi
	and
5

It
	is
	further
	ORDERED
	that
	the
	general
	counsel
	shall
	assure
that
	any
	other
	parties
	to
	the
	Phase
	III
	hearings
	affected
	by
such 	order
	of
	proof
	shall
	have
	notice
	thereof.
This
	order
	shall
	be
	effective
	the
	17th
	day
	of
	October·,
	1979.
Ra¥d
·J
.-
Go.¢"al~?,
Membef
Barbara
	D.
	Moore, 	Member
6

Memcrcndum
Ja:a:
	August 	22, 	1979
william
P.
	Smith, 	General 	Counsel
!:o::
	:rn!.IC
~!.O~iT
:.z?.A!!ONS	
aoAfi.!l
9ZJ
	ll:h
S~=asc,
	S~:a
	201
Sac=3mtmcc	
~	
958l4
(916)
	323-2.S.31
in
la:	
Mot:ion
	to
	Use
	Phase
·II
Evidence
	P:i.a.se. :CI! Rea.rings
of
	Toe
motion
	of
	the Association
	Soecial
	A~ents
	of 	the 	Depart•
ment
	of Justice
	and
	t.i.~e
	California·
Depart:ment
	of
	Fo:-est:i:-;r•
Employees
	Association
	that
	Phase
	II
	evidence
	be
	considered
	in
Phase
	!II
	is
	denied.
of
Upon
	the
	authorities
	considering
	arg,.mients 	and
	all
	par~ies,
it
	is
	found
	that
	allowing 	admissi~n
	of
	Phase
	II
	evidence
	in
process 	to
Phase
	III
	would be
	harmful
	to 	the 	enti=e
	sn:u ~he
date
	and would
	additional
	unnecessary
	oroblems
	in
cause
basic
	pur?ose
future.
	!t
would
	also
	be
	contradicto-ey
	to.the
of 	se~arating 	out 	the 	exclusionary 	issues 	in
	the
	first
	?lace,
expedite
	and
	si.mpli:y
	the 	process
	by 	allowi:lgwhich
was
	to
the 	parties
	to
	concent::.-ate 	on
	the
	uniting:
	crite:-ia
	wit:hou:
then
	having 	to
	be
	concerned with 	the 	exclusionary
	issues.
procedure
Tne 	pu...-pose 	apri.ma..-y
	of
	pe:::rti.c~ing
	such
	would
	be
to 	pTevent
	duplic:at:ion ,and
	therecy
	shor,:en
	the
	Pha.se
	!Il
procedu:.-e 	would
hearings.
	It
	is
	fotmd 	that: 	such 	a
	proposed
creat:e
more 	problems
	than 	it:
would
	solve.
	This
	is
	due 	eo 	t:he
to
fact 	that
	the 	par~ies
	would 	be 	atteti:rpt:ing
	incorporate, 	rebut
wi::nesses 	and
	evidence 	by 	taking 	previous
and/or
	u:rpeach
era11scrip~ 	language 	out 	of
	its
	or~ginal
	cont.ext.
	Should 	any
party
wish 	to
	recall
	a 	Phase	
!I	
wioes~
	and
	address 	the
	same
questions
	to 	such
witness
	they 	are 	free
	to
	do
	so.
	!e 	is
	felt
that 	this
	orocedure
	creates
	a
	cleaner,
	more 	comcact 	and
understandable 	record
	u~on 	which
	the
	Board
	itself
	can
	base
its
	Phase	
!II	
decisions: 
however,
	Phase!
	evidence
	and 	:est:imony,
	.:l2.Y
	be 	=efer=ed 	to
in
	Phase
	III
	subhearings 	as 	was
	the 	original 	intention.
Barbara
	D.
	Moore, 	Member