Ventura County Community College District (PERB 0139E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
VENTURA COUNTY COMMUNITY COLLEGE DISTRICT,
Employer,
and
VENTURA COUNTY FEDERATION OF 	COLLEGE
TEACHERS, AFT Local 1828, AFL-CIO,
Employee 	Organization.
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) 	Case 	No. 	LA-R-759
LA-UM-92
PERB Decision No. 139
July 11, 	1980
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Appearances; 	Larry A. 	Curtis, Attorney 	(Musick, Peeler 	&
Garrett) 	for Ventura County Community College District; 	Richard
Quint, 	President 	for 	Ventura 	County Federation of 	College
Teachers, AFT Local 1828, AFL-CIO.
Before Gluck, Chairperson; Moore, Member.
DECISION
This 	case 	is 	before 	the Public 	Employment 	Relations Board
(hereafter 	Board) 	on exceptions 	taken 	by 	the Ventura County
Federation of 	College 	Teachers 	(hereafter 	Federation) 	to 	the
hearing 	officer's 	proposed 	decision. 	The Federation objects 	to
the 	hearing officer's 	conclusion 	that 	the position of
Affirmative Action Officer 	is 	a management 	position within 	the
meaning of Government Code 	section 	3540.l(g) 	and 	is, 	therefore,
excluded 	from 	the 	certificated 	unit.1
1 Government Code section 3540.1 (g) reads as follows:
(g) 	"Management employee" means 	any
employee 	in 	a position having 	significant
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The 	Ventura 	County 	Community 	College 	District 	(hereafter
District), 	in 	turn, objects 	to the Federation's Statement of
Exceptions, 	contending 	that 	the 	Federation 	did 	not 	comply with
the 	technical 	requirements 	of 	California Administrative 	Code,
title 	8, 	Part 	III, 	Section 	323002 in 	that 	the Federation
failed 	to 	state 	the 	grounds 	for 	each 	exception 	and 	to
responsibilities 	for 	formulating 	district
policies 	or 	administering 	district
programs. 	Management 	positions 	shall be
designated 	by 	the 	public 	school 	employer
subject 	to 	review 	by 	the 	Educational
Employment 	Relations 	Board.
2 PERB 	rules 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31000.
Section 	32300 	provides 	as 	follows:
Exceptions 	to Board 	Agent 	Decision.
(a) 	A party may 	file 	with 	the Board 	itself
an 	original 	and 	four 	copies of 	a 	statement
of 	exceptions 	to 	a Board 	agent's 	proposed
decision 	issued 	pursuant 	to 	section 	32215,
and 	supporting 	brief, 	within 	20 calendar
days 	following 	the 	date of 	service 	of 	the
decision. 	The 	statement 	of exceptions 	shall:
(1) 	State 	the 	specific 	issues of procedure,
fact, 	law or 	rationale 	to which 	each
exception 	is 	taken;
(2) 	Identify 	the 	page or 	part 	of 	the
decision 	to 	which 	each 	exception 	is 	taken;
(3) 	Where 	possible 	designate 	by page
citation 	or 	exhibit 	number 	the portions 	of
the 	record 	relied 	upon 	for 	each 	exception;
(4) 	State 	the 	grounds 	for 	each 	exception.
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"specifically urge" each exception. 	Thus, 	the District asserts,
the Federation waived 	its 	exceptions. 	The 	District also
asserts 	that 	the 	hearing officer's 	decision 	was 	correct.
California Administrative Code, 	title 8, Part III, 	section
32300 	requires a party 	to 	state 	its 	exceptions 	to a 	hearing
officer's 	proposed 	decision 	with 	sufficient 	specificity 	that
the 	opposing 	party 	and 	the 	Board 	are 	apprised 	on 	the 	contested
issues 	and 	the 	reasons 	for 	the 	exceptions.
Here, 	there 	is only one 	issue 	in dispute, 	the 	status of 	the
District Affirmative Action officer, 	In 	its 	statement 	of
exceptions, 	the Federation 	lists 	examples of 	evidence 	which
purportedly 	contradict 	the 	hearing 	officer's 	finding 	that 	the
Affirmative Action Officer 	is 	a management 	employee. 	Although
the 	Federation 	did 	not 	specifically 	state 	that 	the 	hearing
officer 	failed 	to weigh or incorrectly weighed 	this 	evidence, 	by
contending 	that 	the 	hearing 	officer 	erred 	in 	finding 	that 	the
incumbent 	is a management employee, 	and 	by 	listing 	contrary
(b) 	No 	reference 	shall be made 	in 	the
statement of 	exceptions 	to 	any matter 	not
contained 	in 	the 	record 	of 	the 	case.
(c) 	An 	exception 	not 	specifically 	urged
shall 	be waived.
(d) 	The party shall, 	concurrent with 	its
filing of 	the 	statement 	and 	supporting
brief, 	serve a copy of 	the 	same 	upon each
party 	to 	the proceeding. 	Proof of 	service
shall 	be 	filed 	with 	the Board 	itself.
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evidence, 	the 	Federation 	has given 	adequate 	notice 	to 	the Board
and 	to 	the District of 	its 	objections 	and 	has 	therefore
substantially 	complied 	with 	section 	32300.
The 	hearing 	officer's 	statement 	of 	facts 	and 	conclusions 	of
law 	are 	free 	from prejudicial 	error 	and 	are 	adopted 	by 	the
Board. 	We 	therefore 	affirm 	the 	hearing 	officer's 	finding 	that
the 	District's 	Affirmative 	Action Officer 	is 	a management
employee 	within 	the 	meaning 	of 	Government 	Code 	section
3540.l(g) 	and 	is, 	therefore, 	excluded 	from 	the certificated
unit.
ORDER
Upon 	the 	foregoing 	decision 	and 	the 	entire 	record 	in 	this
case, 	the Public Employment Relations Board ORDERS 	that:
The 	District 	Affirmative Action Officer 	is 	a management
employee 	within 	the 	meaning 	of Government 	Code 	section
3540.1(g) and 	is, 	therefore, 	excluded 	from 	the 	certificated
unit.
By: 	Barbara D. 	Moore, 	Member 	Harry Gluck, Chairperson	Har/y Glu¢R, 	chairpefson	0
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PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE 	OF CALIFORNIA
VENTURA COUNTY 	COMMUNITY 	COLLEGE
DISTRICT,
Employer,
and
VENTURA COUNTY 	FEDERATION 	OF
COLLEGE TEACHERS, 	AFT LOCAL 1828,
AFL-CIO,
Employee Organization.
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)
) 	Representation
Case 	No. 	LA-R-759
LA-UM-92
PROPOSED 	DECISION
(4/14/80)	(4/14/80)
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Appearances; 	Larry A. 	Curtis, 	Attorney 	(Musick, 	Peeler 	&
Garrett) 	for Ventura County Community College District; 	Richard
Quint, 	President 	for Ventura County Federation of 	College
Teachers, AFT Local 1828, AFL-CIO.
Before Dee Crippen, 	Hearing Officer.
INTRODUCTION
The 	Ventura County Community College 	District 	(hereafter
District) 	has 	a student 	enrollment 	of 	approximately 	25,451 	at
three 	college 	campuses, Moorpark, 	Oxnard and Ventura 	in the
County 	of Ventura.1
On May 	29, 	1979 	the District pursuant 	to section 	3541.3 (e)
of 	the Educational Employment Relations Act 	(hereafter EERA)2
l"California Public School Directory" 	(1979) 	State
Department of Education, 	at p. 	583.
2The EERA is 	codified 	at Gov. 	Code 	3540 et. 	seq. 	All
statutory 	references 	are 	to 	the Gov. 	Code 	unless 	otherwise
noted.
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filed 	a 	unit 	modification 	petition 	with 	the 	Public Employment
Relations Board 	(hereafter 	PERB) 	to exclude 	the 	position of
Affirmative 	Action 	Officer 	from 	the 	established 	certificated
unit. 	On June 	19, 	1979 	the Ventura County Federation of
College Teachers 	(hereafter 	Federation) 	filed 	its 	response 	in
opposition 	to 	the District's 	petition.
The 	District 	contends 	that 	the Affirmative Action Officer
is 	a management 	employee 	and 	consequently 	the 	position 	should
be 	excluded 	from 	the 	certificated 	unit 	as 	required 	by 	section
3545(b) (1) .3
The 	Federation 	contends 	that 	the 	position 	is 	not 	a
management 	position 	as 	the 	incumbent 	does 	not 	possess
significant 	responsibilities 	for 	formulating 	district 	policies
and 	administering 	district 	programs 	and 	should 	remain 	part 	of
the 	overall 	certificated 	negotiating 	unit.
After 	an 	informal 	conference, 	at 	which no 	resolution was
reached, 	a 	formal 	hearing was 	held on October 	29, 	1979.
Thereafter, 	simultaneous 	briefs 	were 	filed 	by 	the 	parties 	on
January 28, 1980.
3Gov. 	Code section 3545(b)(1) 	reads 	as 	follows:
(b) 	In all cases:
(1) 	A negotiating 	unit 	that 	includes 	classroom
teacher's ballot not 	be 	appropriate 	unless 	it 	at
least 	includes 	all 	of 	the 	classroom 	teachers
employed by 	the 	public 	school 	employer, 	except
management employees, 	supervisory employees, 	and
confidential 	employees.
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ISSUE
Whether 	the 	position 	of Affirmative Action Officer 	is 	a
management 	employee 	within 	the 	meaning 	of 	Government 	Code
section 	3540.1(g) 	and 	therefore 	properly excluded 	from 	the 	unit,
FINDINGS 	OF 	FACT
On June 	2, 	1977 	pursuant 	to a consent 	election,
certification 	was 	granted 	to 	the Ventura County Federation 	of
Teachers, 	AFT Local 1828, 	AFL-CIO for 	a unit 	including:
All 	full-time 	and 	part-time 	certificated
employees, except management, supervisory
and 	confidential 	employees 	as 	defined 	by 	the
Act.
A 	negotiated 	agreement 	was 	signed 	between 	the 	District 	and
the Federation on March 	7, 	1978. 	In 	this 	negotiated 	agreement
the 	title 	of 	"Instructor/Affirmative Action Officer" 	was
deleted 	and 	replaced 	with 	the 	title 	of 	"Affirmative Action
Officer". 	The 	District 	requested 	the 	exclusion of 	the
Affirmative Action Officer 	designation, 	but 	the Federation 	did
not 	agree 	to delete 	the 	position 	as management.
A petition 	for 	change 	in 	unit 	determination was 	filed 	by
the District with 	the PERB on May 16, 	1978. 	The 	petition 	to
exclude 	the Affirmative Action Officer 	as 	a management 	employee
was 	the 	result 	of 	the 	governing 	board's 	action on April 	4, 	1978
approving 	the 	designation 	of 	Affirmative Action Officer 	in
concept 	as 	a management 	employee 	and 	directing 	the 	District
Superintendent 	to 	file 	the 	petition 	to 	remove 	the 	position 	from
the unit.
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The 	petition 	for 	unit 	determination 	was 	dismissed 	on
July 31, 	1978 	by 	the PERB 	as 	the 	petition did not meet 	the
criteria 	for 	filing 	under 	Board 	Resolution 	#6.4
On May 	29, 	1979 	the District 	filed 	a petition 	for 	unit
modification 	pursuant 	to PERB 	Rule 	332605 and 	section
4Resolution No. 	6 	(7/6/76) 	EERB reads as follows:
Petitions 	for 	changes 	in 	unit 	determinations
pursuant 	to Section 3541.3 (e) 	of 	the Act
will 	be 	entertained 	by 	the 	Educational
Employment 	Relations 	Board 	under 	the
following 	circumstances:
1. 	Where 	both 	parties 	jointly 	file 	the
petition; or
2. 	Where 	there 	has 	been 	a change 	in the
circumstances 	which 	existed 	at 	the 	time 	of
the 	initial 	unit 	determination.
5Section 33260 	provides 	as 	follows:
Policy. 	It 	is 	the policy of 	the Board 	to provide 	a
single mechanism which 	shall 	be 	utilized 	for 	the 	modification
of 	all 	established 	units. 	This 	system 	is 	designed 	to ensure
that 	all 	parties 	to 	a modification 	are 	afforded 	notice 	and
opportunity 	to express 	their 	views 	with 	regard 	to 	any 	proposed
modification, 	and 	to provide 	assistance 	in 	the 	resolution of
questions 	raised 	by 	the 	parties 	to 	a 	dispute 	regarding 	the
modification of 	a 	unit.
The 	Board 	will 	not 	allow 	a 	unit modification which 	is 	based
principally 	on 	employee 	dissatisfaction 	with 	the 	results 	of
negotiations or 	the exclusive 	representative; 	nor 	will 	the
Board 	permit 	a 	unit modification which 	impinges 	on 	the
integrity of 	another 	established 	unit 	in which 	there 	is 	a
different 	recognized 	or 	certified 	organization 	or 	which
compromises 	the 	exclusivity of 	such 	certification.
No 	unit 	modification may 	be made 	by 	any 	procedure 	other
than 	that 	contained 	in 	this Article. 	(Amended 	as 	of 	6/14/79)
A4

3541.3(e) 	of 	the EERA stating 	that 	a 	change 	in 	circumstances
had 	occurred 	and 	that 	the 	issue 	of 	voluntary 	removal 	of 	the
Affirmative Action Officer 	as 	a management 	employee 	could 	not
be 	effected.
The 	position 	of 	Deputy Affirmative 	Action Officer 	was
created 	in 	1976 	as 	a 	50 	percent 	affirmative 	action officer,
50 percent 	instructor, 	paid on 	an 11-month 	contract 	at 	an
instructor's 	salary 	and 	designated 	non-management. 	The
incumbent 	was 	appointed 	in 	the 	1976-1977 	school 	year.
In 	response 	to 	increased 	administrative 	duties 	and
responsibilities, 	the 	word 	"Deputy" 	was 	dropped 	from 	the 	title
and 	the 	Governing 	Board 	of 	the 	District 	took 	action 	on June 	7,
1977 	to 	increase 	the 	position 	to 	60 	percent 	affirmative 	action
and 	40 	percent 	teaching 	and/or 	inservice 	training 	with 	a
12-month 	contract.
The 	position 	was 	increased 	to 	80 	percent 	affirmative
action, 	20 	percent 	as 	an 	instructor 	during 	the 	1977-1978 	school
year 	and 	ultimately 	raised 	to 	its 	present 	level 	of 	100 	percent
in 	the 	spring of 	1978.
The 	Affirmative Action Officer 	is 	recommended 	for
appointment 	by 	the 	District 	Superintendent 	and 	appointed 	by 	the
governing 	board. 	In 	this 	capacity, 	the Affirmative Action
Officer 	reports 	directly 	to 	the District 	Superintendent. 	The
Affirmative Action Officer 	has 	the 	primary 	responsibility 	for
the 	administration of 	the District's 	affirmative 	action 	plan
and 	is 	responsible 	for 	assuring 	compliance 	of 	the 	affirmative
action plan on 	a District-wide 	basis. 	No 	teaching
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responsibilities 	are 	assigned 	to 	the position, 	as 	the 	position
of Affirmative Action Officer 	is 	a 	full-time 	one. 	The 	position
is 	compensated 	on 	a 	12-month 	contract 	basis 	as 	opposed 	to 	all
other 	certificated 	employees 	who 	are 	compensated 	on 	a 	10-month
contract 	basis.
The Affirmative Action Officer 	interprets 	all 	federal 	and
state 	legislation 	relating 	to 	equal 	employment 	and 	affirmative
action. 	She 	is 	responsible 	for 	preparing 	and 	filing 	any
required 	reports 	with 	the 	appropriate 	governmental 	agencies 	and
handles 	all 	inquiries 	from 	employees 	and 	all 	governmental
agencies 	regarding 	equal 	employment 	opportunities 	or
affirmative 	action. 	She 	acts 	as 	chief 	spokesperson 	for 	the
District 	on 	all 	affirmative 	action matters.
She 	reviews 	all 	job 	announcements 	for 	certificated 	and
classified 	employees 	for 	compliance 	with 	the 	District's
affirmative 	action 	plan 	and 	has 	the 	authority 	to 	require
changes 	or 	insertions 	in 	the 	content on 	all 	publications 	to
achieve 	compliance. 	She 	has 	the 	authority 	to direct 	the
superintendent 	to 	change 	resolutions 	of 	the District 	if 	the
resolution 	is 	in violation of 	the 	affirmative 	action plan. 	She
has 	the 	authority 	to waive 	or 	forego portions of 	the
affirmative 	action 	plan 	in order 	to 	achieve 	compliance.
She 	establishes 	screening 	committees 	to 	interview 	job
applicants 	and 	has 	the 	authority 	to modify or 	restructure 	the
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committee 	if 	it 	is 	not sufficiently 	representative 	in 	terms of
ethnicity or 	sex.
She 	conducts 	surveys 	to 	insure 	that 	the 	distribution of
positions 	within 	the District 	are 	in 	compliance 	with 	the
District's 	affirmative 	action 	goals 	and 	has 	the 	authority 	to
establish 	a 	calendar 	for 	inservice 	training 	of 	District
personnel 	and 	students.
She 	has 	discretionary control 	over 	the 	entire 	affirmative
action 	budget, 	excluding 	the 	salaries 	of 	herself 	and 	her
secretary.
CONCLUSIONS 	OF 	LAW
Government Code 	section 	3540.1(g) 	defines 	a 	"management
employee" 	as 	"any employee 	in 	a position 	having 	significant
responsibilities 	for 	formulating 	district 	policies 	or
administering 	district 	programs."
The 	PERB 	has 	previously 	concluded 	that 	a management
employee 	must 	possess 	significant 	responsibilities 	for 	both
formulating 	district 	policies 	and 	administering 	district
programs.6 	The 	EERA's 	requirement 	that 	a management 	employee
"formulate 	district policies" 	requires 	that 	an 	employee 	possess
discretionary 	authority 	to 	develop 	or 	modify 	institutional
6Lompoc Unified School District 	(March 	17, 	1977) 	EERB
Decision No. 	13, at 20-21.
V7

goals 	and 	priorities. 	"Administering 	district 	programs"
requires 	authority 	to 	implement 	district 	programs 	through 	the
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exercise 	of 	independent 	judgment.
This 	case 	is 	similar 	to 	that 	addressed 	by 	the 	PERB 	in
Berkeley Unified 	School 	District.8 	in 	Berkeley 	the 	PERB 	was
asked 	to 	determine 	whether 	the Title 	IX 	Coordinator9 	was 	a
management 	employee. 	The 	PERB 	ruled 	that 	the 	position was
management 	because 	the 	coordinator 	insures 	the 	District's
compliance 	with 	Title 	IX 	by 	preparing 	and 	submitting 	various
reports 	to the Department 	of Health, 	Education and Welfare.
The 	Title 	IX Coordinator 	has 	the 	authority 	to 	investigate
practices 	and 	policies 	of 	the District where 	sex 	bias 	is 	found
to exist 	and 	direct 	that 	the 	practice 	be 	changed. 	Her
authority 	is 	not 	limited 	to routine matters, 	but 	she 	can
investigate 	in 	great 	depth. 	She 	conducts 	surveys 	to 	identify
discriminatory 	practices 	within 	the 	District 	and 	handles
grievances 	relating 	to 	sex 	discrimination. 	She 	interprets
Title 	IX 	policy 	for 	the 	District 	and may 	serve 	as 	the
7Hartnell Community College 	District 	(January 	2, 	1979)
EERB Decision No. 	81, 	at 13.
-- ~ ------------
8Berkeley Unified School District 	(August 	28, 	1979) 	PERB
Decision No. 	101, 	at 9-10.
9Title IX of 	the Education Amendments 	of 	1972, 	P.L.
92-318 	(1972), 	as 	amended by P.L. 	93-568 	(1974) 	and P.L. 	94-482
(1976) 	prohibits 	sex 	discrimination 	in 	federally 	assisted
education 	programs.
CO	
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District's 	spokesperson on Title 	IX matters. 	She 	has
discretionary control 	over 	a 	$5,000 	budget 	to carry out 	her
responsibilities 	relating 	to 	Title 	IX.
The 	PERB concluded 	that 	the 	Title 	IX 	coordinator 	has
authority 	to 	use 	independent 	judgment 	in 	identifying
discriminatory practices 	within 	the District, 	that 	this
authority 	was District-wide 	and 	not 	limited 	to 	routine matters.
She 	has 	authority 	to direct 	a change 	in 	a discriminatory
practice. 	She 	has 	significant 	responsibilities 	for 	formulating
and 	administering District 	policy 	with 	respect 	to 	equal
treatment 	of 	the 	sexes. 	Therefore, 	the PERB concluded 	that 	the
Title 	IX Coordinator 	was 	found 	to be 	a management 	employee.
The 	position of Affirmative Action Officer 	in Ventura 	is
similar 	to 	the Title 	IX Coordinator 	in Berkeley as 	the
Affirmative Action Officer 	has 	the 	primary 	responsibility 	for
the 	administration 	of 	the 	District's 	affirmative 	action 	plan
and, 	if 	necessary, 	has 	authority to waive or 	forego portions 	of
the 	plan 	in order 	to 	achieve 	affirmative 	action.
She 	formulates 	surveys 	to 	be 	conducted 	on 	a 	district-wide
basis 	to determine 	the utilization, 	underutilization, 	ethnicity
and 	sex 	distribution 	of 	positions 	and 	can 	direct 	changes 	to 	be
made 	in 	the 	District's 	affirmative 	action plan 	to meet
legislative 	requirements.
She 	handles 	all 	inquiries 	from 	the 	District 	employees 	with
regard 	to 	affirmative 	action 	and 	is 	the District's 	chief
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spokesperson 	with 	the 	governmental 	agencies 	dealing 	with
affirmative 	action. 	In this 	context, 	she 	prepares 	and 	files
all 	appropriate 	reports 	with 	these 	governmental 	agencies.
She 	has 	discretionary 	control 	over 	the 	entire 	affirmative
action budget, 	excluding 	salaries.
She 	can 	advise 	a change 	in 	the 	affirmative 	action plan 	if
any discriminatory 	practice 	is 	found on 	a 	district-wide 	basis.
She 	may 	authorize 	the 	District 	Superintendent 	to 	implement
these 	changes 	and 	has 	the 	responsibility 	for 	the 	total
administration 	of 	the 	affirmative 	action 	plan 	for 	the 	District.
As 	this 	case 	shows 	similar 	facts 	to the Berkeley case, 	it
is 	concluded 	that 	the 	position 	of Affirmative Action Officer 	is
a management 	employee 	and 	therefore 	is 	properly 	excluded 	from
the unit.
PROPOSED 	DECISION
Based 	on 	the 	foregoing 	findings 	of 	fact, 	conclusions of 	law
and 	the 	entire 	record 	in 	this matter, 	it 	is 	the 	proposed
decision 	and 	order 	that:
The 	position 	of Affirmative Action Officer 	is 	a management
position 	within 	the meaning 	of 	Government 	Code 	section
3540.1(g) 	and 	is, 	therefore, 	excluded 	from the certificated
unit.
Pursuant 	to California Administrative Code, 	title 	8, 	part
III, 	section 	32305, 	this Proposed Decision 	and Order 	shall
10

become 	final 	on 	May 	5, 	1980 	unless 	a 	party 	files 	a 	timely
statement 	of 	exceptions 	and 	supporting 	brief 	within 	twenty 	(20)
calendar 	days 	following 	the 	date 	of 	service of 	this 	decision.
Such 	statement 	of 	exceptions 	and 	supporting 	brief 	must 	be
actually 	received 	by 	the 	Executive Assistant 	to 	the 	Board 	at
the 	headquarters 	office 	in Sacramento 	before 	the 	close 	of
business 	(5:00 p.m.) 	on 	May 	5, 	1980 	in order 	to 	be 	timely
filed. 	(See California Administrative Code, 	title 8, 	part III,
section 	32135.) 	Any 	statement 	of 	exceptions 	and 	supporting
brief 	must 	be 	served 	concurrently 	with 	its 	filing 	upon 	each
party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	be 	filed 	with
the Board 	itself. 	(See California Administrative Code, 	title
8, part III, 	sections 32300 and 32305, 	as amended.).
DATED: 	April 	14, 	1980
Dee 	Crippen
Hearing 	Officer
11
I
\