State Employer-Employee Relations Act - California State Employees Association, et al. (PERB A059S)

STATE 	OF 	CALIFORNIA
DECISION OF THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
In 	the 	Matter 	of 	the 	Administrative
Appeal 	of
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION, 	et 	al,
Employee 	Organizations,
APPELLANTS,
and
STATE 	OF 	CALIFORNIA,
Employer.
State 	Employer-Employee 	Relations
Act 	Unit 	Determination 	Hearings.
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____________________)
Case 	Nos. 	S-R-1-S
thru 	S-R-54-S
PERB 	Order 	No. 	Ad-59-S
Administrative 	Appeal
March 	5, 	1979
Appearances: 	William McLeod, 	Unit 	Services 	Manager 	for 	California
State 	Employees' 	Association; 	Ray 	Tharp, 	In~ernational 	Union
Representative 	for 	American 	Federation 	of 	State, 	County 	and
Municipal 	Employees, 	AFL/CIO; 	Ron 	Yank, 	Attorney 	(Carroll, 	Burdick
& McDonough) 	for £alifornia 	Department 	of 	Forestry 	Employees
Association, 	Association 	of 	Special 	Agents 	of 	the 	California
Department 	of 	Justice 	and 	California 	Correctional 	Officers
Association; 	Russell 	Richeda, 	Attorney 	(Carroll, 	Burdick &
McDonough) 	for 	California 	Correctional 	Officers 	Association;
Neil 	Bodine, 	Attorney 	(Beeson, 	Tayer 	& Kovach) 	for 	State 	Employees
Printing 	Trades 	Alliance, 	Teamsters 	Local 	960, 	Board 	of 	Equalization
Tax 	Auditors 	Association 	and 	California Association 	of 	State
Auditors; 	Richard 	T. 	Baker 	for 	Professional 	Engineers 	in 	California
Government, 	Association 	of 	California 	State Attorneys, 	California
Medical 	Technical 	Assistants 	Association 	and 	California 	State
Police Association; 	Morris 	R. 	Evenson 	for 	Painters 	Union 	Local 	#4,
I.B.D.A.T., 	AFL/CIO; 	Herbert A. 	Drosdat, 	President 	for 	California
Association 	of 	Planners; 	Martin Morgenstern, 	Director 	and 	Angela
Pickett 	and 	Barbara 	Stuart, 	Counsel 	for 	Governor's 	Office 	of
Employee 	Relations.
Before: 	Gluck, 	Chairperson; 	Gonzales, 	Member.
DECISION
This 	is 	an 	appeal 	from 	certain 	procedural 	determinations
made 	by 	the 	general 	counsel 	to 	the 	Public 	Employment 	Relations
Board 	(hereafter 	PERB 	or 	Board), 	applicable 	to 	unit 	hearings

under 	the
	State
	Employer-Employee
	Relations
	Act
	(hereafter
SEERA)
•1	
Fifteen
	employee
	organizations
	filed
	objections 	to
a
	determination
	by
	the
	general
	counsel 	as
	to
	the 	place
	in
	such
hearings
	for
	the
	presentation
	of
	the
	State's
	cases-in-chief.
Fifty-four
	petitions
	for
	negotiating
	units
	were
	filed
	by
thirty-eight
	employee
	organizations
	subsequent
	to
	the
implementation
	of
	SEERA
	on
	July 	1,
	1978.
	The
	State,
	through
the 	Governor's 	Office 	of
	Employee
	Relations,
	responded
	by
proposing
	that
	six 	units
	be
	established.
	The
	general 	counsel,
faced 	with 	the
	prospect 	of 	dealing
	with
	an
	extraordinary
	volume
of
	complex
	issues
	and
	conflicting
	evidence, 	designed
	a
	system
of 	subhearings 	intended
	to 	consider 	overlapping
	petitions
	in
reasonable
	continuity.
	These
	subhearings
	would
	deal
	with
	baaic
questions 	of 	appropriateness
	and 	were
	given 	the
	overall
designation 	of
	"~hase
	II
	hearings."
	Phase
	I
	hearings
	were
concerned 	with
	certain
	procedural 	matters
	and
	Phase
	III
hearings
	was
	the
	term
	assigned 	to
	specific
	exclusionary
	issues
based
	on
	managerial, 	supervisory
	or
	confidential 	status 	of
specific 	classifications
	or
	individuals.
The
	general 	counsel's 	plan
	called
	for 	the
	State 	to 	present
its
	cases-in-chief
	as 	to
	the 	appropriateness 	of
	its
	six 	units
at
	the 	conclusion 	of
	Phase
	III.
	The
	appeals 	here
	were
predicated
	on
	this 	latter
	decision 	of 	the 	general 	counsel.
Before 	these 	appeals
	were
	heard 	by 	the
	Board
	itself,
	the
general 	counsel 	modified 	his 	plan 	to 	require 	that 	the 	State
lThe 	State
	Employer-Employee 	Relations 	Act
	is 	codified 	at
Government 	Code
	section	
3512	
et 	seq.
2

present
	its
	cases-in-chief
	at
	the
	conclusion 	of
	Phase
	II.
	The
appellants
	nevertheless
	continued
	their
	appeal
	and
	oral
argument
	was
	heard	
by	
the
	Board
	itself
	on
	February 	15, 	1979.2
The
	essence
	of
	their
	objections
	is 	that
	the
	State
	was
	given
unfair
	advantage
	in
	being
	afforded
	the
	extra
	time
	to 	prepare
its
	positions
	on
	units
	and 	by
	being
	able 	to
	withhold
	its
presentations
	until
	all
	other
	Phase
	II
	subhearings
	were
concluded,
	being
	able 	thereby
	to
	withhold
	the
	grounds
	for
	its
opposition 	to
	the
	individual 	units 	petitioned 	for,
	until
	all
the
	parties
	adverse
	to
	its
	interests
	had
	concluded
	their 	cases.
While
	the
	parties
	also
	raise
	other 	objections
	concerning
the 	negative
	effect
	of
	an
	apparent
	bias
	on
	the 	public
	attitude
toward
	the
	hearings,
	the
	potential
	for
	additional 	costs 	to
	the
parties
	and
	the 	question
	of
	Board
	convenience
	in
	reviewing
transcripts
	from-proceedings
	which
	are
	not 	contiguous 	in 	time,
it
	is
	not 	necessary 	to
	reach
	these 	matters 	in 	deciding
	this
appeal.
The
	State's
	response
	to 	these 	appeals
	is
	to
	emphasize
	the
reasoning
	used
	by
	this
	Board
	in
	the
	administrative
	appeal
	filed
2one
	of 	the
	appellants 	also 	objected 	to 	the 	general
counsel's 	decision 	to
	hold 	Phase
	III
	hearings,
	where
	possible,before 	the 	conclusion 	of
	all
	Phase
	II
	hearings.
	Phase
	III
hearings 	are 	limited 	to 	the 	determination 	of 	managerial,
supervisory
	and
	confidential 	status 	of 	specific 	classifications
and
	employees.
	The 	Board
	notes 	that
	the 	general 	counsel
actually
	had
	modified 	the 	procedure 	to 	provide
	that
	Phase
	III
hearings
	would 	be
	held
	after 	all
	Phase
	II
	hearings
	were
concluded.
	The 	Board
	agrees 	with
	this
	modified 	procedure
	and
will 	include
	it
	in 	the 	Order.
3

by
	the
	California 	State
	Employees
	Association
	(hereafter
	CSEA),
PERB
	Order
	No.
	54-S
	(January 	18,
	1979).
	That
	appeal
	dealt
	with
the
	decision	
to	
subdivide 	the
	unit
	hearing
	into
	seventeen
subhearings.
	In
	responding
	to
	that
	appeal, 	the
	Board
	indicated
that
	it
	would
	not
	override
	the
	general
	counsel
	simply
	for
	the
purpose
	of
	seeking
	a
	better
	or
	best
	procedure	
to	
deal
	with
	the
unit
	question,
	and
	that
	barring
	evidence 	of
	a
	denial 	of
	due
process
	or
	a
	violation
	of
	Board
	rule,
	the
	general
	counsel's
management
	of
	the 	hearing
	would
	not
	be
	interfered
	with.
	The
State
	acknowledged
	that
	it
	could
	accommodate
	itself
	to
	a
revised
	procedure, 	but
	doubted
	that
	any
	particular
	advantage
would 	be
	served.
	It
	suggested
	that
	adoption
	of
	a 	new
	procedure
would
	probably 	cause
	a
	delay 	in
	proceeding 	with
	Phase
	II
resulting
	from
	the
	State's
	need
	for
	time
	to 	prepare
	its
cases-in-chief.
DISCUSSION
A
bench
	decision
3 was
	issued 	sustaining
	the 	objections 	to
the 	General 	Counsel's 	procedures.
	The
	following
	discussion
	and
order 	memorializes
	that 	decision.
To
	warrant
	an
	order
	directing
	the 	general 	counsel 	to
	modify
his 	procedures,
	it
	is
	not 	necessary, 	in
	our 	view,
	to 	find
	that
those 	procedures
	actually
	deny 	due
	process 	in 	the
	strictest
	or
most 	commonly
	cited
	sense 	of 	that
	term
	of
	art. 	It
	would 	be
3At 	the 	time 	of 	oral
	argument 	and
	issuance 	of 	the 	bench
decision,
	Ms. 	Cossack 	Twohey 	was
	present
	and 	voted 	with 	the
majority.
	At 	the 	time
	this
	bench
	decision
	was 	memorialized
herein,
	Ms. 	Cossack 	Twohey 	was 	not 	a 	member
	of 	the 	Board 	and
did 	not 	participate 	in 	the 	written 	decision.
4

sufficient
	to
	conclude
	that
	they
	raise 	substantial
	questions
	of
procedural
	bias.
We
	do
	conclude
	that
	inadvertent
	advantage 	has
	been
	gained
by
	the 	State
	both
	in 	the
	time
	it
	will
	have
	to 	prepare
	its
	cases
as
	well
	as
	in
	its
	ability
	to
	withhold
	its
	specific 	objections
to
	the
	units
	for
	which
	the
	parties
	have
	petitioned
	until
	some
indefinite
	date 	in
	the
	future,
	which
	in
	some
	cases
	at
	least
will
	be
	long
	after
	the
	petitioners'
	cases-in-chief
	have
	been
concluded.
	To
	maximize
	the
	fair
	and
	equitable 	nature 	of 	these
administrative
	proceedings, 	the
	State
	should
	present
	its
individual 	unit 	cases-in-chief
	during 	the
	Phase
	II
	hearings.
Further,
	each
	of
	its
	cases-in-chief
	should
	be
	presented 	in
conjunction
	with 	the
	appropriate
	subhearings
	grouped
	according
to 	overlapping
	classifications.
	The
	Board
	is
	mindful
	that
	the
State's
	timetable 	for
	preparation
	and
	presentation
	of
	its
	cases
will
	be
	affected
	by
	this
	decision
	and
	therefore 	finds
	that
	it
shall
	be
	entitled
	to 	present
	its
	applicable 	case-in-chief
	at
the 	conclusion 	of
	each
	of 	the 	group
	subhearings.
	Finally,
	the
Board
	takes 	cognizance
	of 	the
	State's
	position 	that
	an
important
	part 	of
	its
	total
	case 	involves
	argument 	with
	respect
to 	efficiency 	of
	government
	operations
	and
	other 	matters 	of
statewide 	implication
	which 	may
	well 	cut 	across
	all
	unit
issues
	and
	it
	agrees 	that
	it
	would 	be
	appropriate 	for 	such
argument
	to
	be 	made
	at
	the 	conclusion 	of
	all
	Phase
	II
presentations.
	The 	Board
	also
	acknowledges
	that 	similar 	issues
may 	be 	of 	interest 	to 	individual
	employee
	organizations
	which
therefore 	should 	have 	an
	opportunity 	at 	the 	conclusion 	of 	Phase
II 	hearings 	to 	present 	evidence 	and 	argument 	on 	those 	matters
which 	transcend 	individual 	unit 	considerations.
5

ORDER
The Public Employment Relations Board ORDERS that the
appeals filed by the California State Employees Association and
others from the general counsel's determination of the order in
which cases-in-chief are to be presented in the hearings under
the State Employer-Employee Rela�ions Act are sustained to the
extent reflected hereafter:
The Board ORDERS that the general counsel shall require the
State to present its individual cases on the appropriateness of
its proposed units during the course of the general couns�l's
"Phase II hearings;" and
It is further ORDERED that the State shall be entitled to
present its individual cases-in-chief at the conclusion of each
pertinent group 9f subhearingsi and
It is further ORDERED that the State and any employee
organization which is a party to said hearings may at the
conclusion of all Phase II hearings present evidence and
argument on matters relating to efficiency of government
operations and other considerations which transcend individual
unit matters.
It is further ORDERED that the general counsel shall
conduct "Phase III hearings" after all Phase II hearings have
been concluded.
This Order shall be effective February 15, 1979.
By: !arry Gluck, Chairperson
6
( ./ ,Raymtnd J. Gonzales, Member