State Employer-Employee Relations Act - Governor's Office of Employee Relations (Phase III) (PERB A079S)

STATE	
OF	
CALIFORNIA
DECISION
	OF
	THE
·
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD	
,
IN
	RE 	THE
	STATE 	EMPLOYER-
EMPLOYEE 	RELATIONS 	ACT, 	PHASE
III
	UNIT 	DETERMINATION 	PROCEEDING.
)
)
)
)
)
)
)
___________________
)
Case
	No.
	S-R-l-56S
PERB
	Order
	No.
	Ad-79-S
Administrative
	Appeal
October
	18,
	1979
Appearances: 	Barbara
	T.
	Stuart,
	Attorney
	for
	Governor's.
Office
of
	Employee
	Relations;
	Gary
	P. 	Reynolds,
	Attorney
	for
	California
State
	Employees'
	Association; 	Russell
	L.
	Richeda,
	Attorney
(Carroll,
	Burdick	
&	
McDonough)
	for 	California
	Department
	ofForestry
	Employees 	and
	California 	Correctional 	OfficersAssociation.
Before
	Gluck,
	Chairperson;
	Gonzales
	and 	Moore, 	Members.
DECISION
AND
	ORDER
By
	letter
	dated 	July
	9, 	1979,
	the
	Governor's 	Office
	of
	Employee
Relations 	(hereafter
	GOER)
	requested
	that
	a
	declaration
	be
	issued
by
	the 	Public
	Employment
	Relations
	Board
	(hereafter
	PERB
	or
	the
Board)
	prior
	to 	the
	commencement
	of 	the
	Phase
	III
	subhearings 	to
be 	conducted
	in
	connection with
	unit
	determinations
	under
	the
1
State
	Employer-Employee
	Relations
	Act
	(hereafter
	SEERA).
	The
declaration 	requested
	was
	as 	follows:
..
1
The
	State
	Employer-Employee
	Relations 	Act
	is 	codified 	at
Government 	Code
	section
	3512.
	et
	seq.

In 	deciding 	issues 	presented 	at 	the 	State
Employer-Employee 	Relations 	Phase 	III 	Unit
Determination 	Proceedings, 	the 	Public
Employment 	Relations 	Board 	finds 	that 	it 	has
jurisdiction 	to 	determine 	only whether 	an
employee 	is 	or 	is 	not 	properly 	included 	in
an 	appropriate 	bargaining 	unit, 	and 	that 	it
does 	not 	have 	jurisdiction 	to 	determine 	the
proper 	managerial, 	supervisory or
confidential designation 	of 	an 	employee.
On August 	16, 	1979, 	PERB's 	General 	Counsel 	refused 	to 	issue
the 	declaratory 	relief 	requested 	by GOERo 	Viewing 	the 	issue 	as
one 	of 	the 	admissib±lity of 	evidence 	at 	Phase 	III 	subhearings,
the 	General 	Counsel 	indicated 	that 	all 	evidence 	relevant 	to 	any
exclusionary 	issue 	would 	be 	admitted. 	The 	Board 	affirms 	the
General Counsel's 	determination 	and, 	in 	accordance 	therewith, 	notes
that 	it 	likewise 	views 	the 	focus 	of 	the 	Phase 	III 	unit 	determina-
tion 	proceedings 	to 	be 	a 	determination of 	those 	rank and 	file
employees 	who 	are 	to 	be 	included 	in 	the 	designated 	appropriate
units. 	However, 	the 	burden 	is 	on 	the 	State--and 	any other 	party
which may 	seek 	to 	exclude 	employees 	from 	units 	because 	of 	alleged
managerial, 	supervisory 	or 	confidential 	status--to 	affirmatively
justify 	their 	exclusion. 	This 	can 	be 	done 	by 	showing 	evidence
of 	actual 	job 	requirements 	which 	would 	disqualify 	the 	subject
employees 	from 	placement 	in 	representation 	units 	irrespective 	of
which 	exclusionary 	category 	those 	employees 	may 	fit. 	It 	is
therefore 	unnecessary 	to 	respond 	to 	GOER 1 s 	contention 	that 	the
Board 	is 	without 	jurisdiction 	to 	specifically designate 	an
employee 	as 	managerial, 	confidential 	or 	supervisory 	in 	order 	to
formulate 	appropriate 	units. 	Such 	a 	response would 	concern 	a
"-
-2-

matter 	outside
	of 	the
	scope
	of
	the
	Phase
	III
	subhearings
	and,
for
	that
	reason,
	would
	confront
	an
	issue
	not
	currently
	in
controversy.
Based
	on
	the
	foregoing,
	the
	General
	Counsel's 	determination
is
	hereby
	AFFIRMED.
By:
	Barbara
	D. 	Moore, 	Member
i-fia
vrrii1bd
	J.
	Goni'a Ies,.,f' Member ,

WMUNO
G. Sll0WN
JII..,
~	
WMUNO
G. Sll0WN
JII..,
~
PUBUC:
	EMPt.OYMENT
RU.A
T10NS
	BOARD
Headqucrters
Offic:a
923 12th Street, Suite 201
Sacrt1mento,
Wllifornia 	95814.
(916) 322-~088
August: 	16, 	1979
Barbara
T. 	St:ua:t:, 	Esq.
Governor's
	Office 	of
	Employee
	Relat:ions
1230 	J	
Street,
	Room
	262
Sacramento,
	CA
	95814
In
	re:
	The
	State
	Employer-Employee
	Relations
	Act:
	Phase
	!II
Unit
	Det:e~at:ion
	Proceeding,
	Request:
	for 	Declaratory
Ruling
Dear
	Ms.
	Stuart::
GOElt
	in 	its
	Request:
	for
	Declaratory
	Ruling,
	dated
	July
	6,
	1979,has
	requested
	that
	the
	General 	Counsel
	declare
	that
	PER.B
	does
not:
	have
	jurisdiction
	in
	the
	SED'..A
	~ase 	III
	unit
	hear~ngs
to 	determine 	the 	proper managerial, 	supervisory or
	confidential
designation of
	an 	employee, 	but:
	only 	to 	determine whether
	the
employee
	is 	or
	is~not.
properly
	included
	in
	an
	appropriate
bargaining
	unit.
	PEGG
	and
	CSEA
	have
	filed
	opposition 	to
	thisrequest.
•
To
	the 	extent
	ehat
	this
	request 	?resents
	an
	issue 	of
	how
	a
hearing
	officer will
	rule
	on
	the
	admissibility of
	evidence
	at:
the
	Phase
	III
	subhearings,
	it
	has 	been ·and 	cont:inues 	to 	be
	my
opinion
	that: 	a:ny
	evidence
	offered
	by
	a:ny part:y which
	is 	relevant
to 	any 	exclusionary 	issue
	will
	be
	admitted.
	This
	is,
	of 	course,subject: 	to 	any
	other
	proper
	objection
	to 	such 	testimony.
	How-
ever, 	to 	the 	extent 	that
	GOER's
	request 	presents
	an
	issue 	of
what:
	questions 	the
	Board
	itself
	will
	address
	in
	its
	final 	decision,obviously
	that: 	depends 	upon
'the
	decisions 	of 	the
	individual
	Board
members, 	not:
1JU.ne. 	rn
	its
	decision 	tfo.	
86-S,
	CS"E.A
	v. 	Stace
	ofCalifoTnia,
	Oe~art:ment
	of
Health, 	the
	Board
	st~:
Since 	the
	statutory
	schene
	indicates
	an
	intention
	to
exclude 	supervisors
	from
	PERB
	jurisdiction,
	CSEA
must
	look
elsewhere 	to 	vindicate 	the
	rights
	granted 	supervisory 	employees.
!f	
the
	Board 	follo-ws 	t:hat 	:-ea.soning,
	it	
cay well
	det:ent.ine
	chat
if
	it: 	decides 	a 	oart:ic.ula::r 	emolovee ( s)
	is
	e:{cluded on
	;.:1v
	r:heorv,
t~e..~
	it
	has 	by	
that
	d~cision 	determined
	that
	such 	er::!'plo~~e(s)
	i~
outside 	ot 	its 	juris~i:ticn.
,. 	William. P. 	Smith
G.enera.l_Cot.:nsel