State Employer-Employee Relations Act - California State Employees Association (PERB A054S)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
In
	the 	matter
	of 	the
	administrativeappeal
CALIFORNIA
	STATE 	EMPLOYEES'
ASSOCIATION,
Employee
	Organization,
APPELLANT,
State
	Employer-Employee
Relations
	Act
	Unit 	Determination
Hearings.
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____________________
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Case
	Nos.
	S-R-23-S,
24-S, 	25-S,
	26-S,27-S, 	28-S,
	29-S,30-S, 	31-S,
	32-S,
33-S
PERB
	Order
	No. 	54-S
Administrative
	Appeal
January 18,
	1979
Appearances: 	William
	B. 	McLeod,
	Unit
	Services
	Manager
	for
California 	State
	Employees'
	Association;
	William
	Grimm,
Executive
	Director 	for
	California
	Association 	of
	Human
	ServicesTechnologists;
	Jeff
	Paule, 	Attorney
	(Geffner	
&	
Satzman)
	for
Administrative
	Law
	Judges' 	Council;
	Louis 	Burg,
	Attorney
	(Louis
Burg,
	A
Law
	Corporation) 	for
	Board
	of 	Equalization
	Tax
	Auditors
Association, 	California
	Association
	of 	State
	Auditors
	and 	Board
of 	Equalization
	Tax
	Auditors 	Association
	and
	CaliforniaAssociation 	of 	State
	Auditors;
	Dorothy
	Cannon
	for
	CaliforniaAssociation 	of 	State
	Hearing
	Reporters;
	Gary
	Robinson,
	Acting
Coordinator 	for
	Union
	of
	American
	Physicians
	and
	Dentists;
Frank 	Evans,
	President 	for 	Association 	of 	California 	StateAttorneys,
	Inc.;
	Norman 	E. 	Hayden,
	President
	for
	California
State
	Police 	Association; 	Valerie 	Tibbett, 	President
	for
California
	Welfare 	Hearing
	Officers 	Association.
Before:
	Gluck,
	Chairperson;
	Gonzales
	and
	Cossack
	Twohey,
Members.
DECISION
California 	State
	Employees'
	Association 	{hereafter
	CSEA)
appeals 	to 	the 	Public
	Employment
	Relations
	Board
	(hereafter
PERB
	or
	Board)
	to
	set 	aside 	certain 	procedures 	established
	by
the
	PERB
	general 	counsel 	for 	taking 	evidence
	and
	developing
	a
record 	covering 	54
	petitions 	for 	representation 	units 	in 	State
service 	filed
	by 	38 	employee 	organizations.
	Ten 	employee

organizations 	submitted 	responses. 	All 	opposed 	granting 	the
appeal.
DISCUSSION
At 	a 	series 	of 	public 	hearings 	conducted 	by 	PERB 	prior 	to
the 	development 	of 	the 	procedures 	in 	issue,l 	the 	various
parties 	of 	interest 	were 	virtually 	unanimous 	in 	their
preference 	for 	unit 	determination 	through 	case 	handling 	rather
than 	by 	PERB 	rule 	making. 	Nevertheless, 	considerable 	concern
was 	expressed 	over 	the 	prospect of 	long 	and 	protracted 	case
hearings 	and 	the 	possible 	need 	to 	be 	in 	attendance 	over 	months
of 	sessions 	in 	order 	to 	protect 	their 	interests. 	Though 	the
petitioning 	process 	had 	not 	yet 	started, 	there 	was 	widespread
conviction 	that 	a 	large 	number 	of 	petitions 	would 	be 	filed. 	A
purely 	sequential 	disposition 	of 	these 	anticipated 	petitions
was 	strongly 	opposed. 	There 	was 	a 	clear 	support 	for 	some
shortened 	procedure 	which 	would 	not 	reflect 	or 	create 	a 	bias 	in
favor 	of 	any 	particular 	unit 	configuration 	or 	improperly
restrict 	the 	parties' 	opportunity 	adequately 	to 	"make 	their
case." 	At 	the 	conclusion 	of 	the 	public 	hearings, 	the 	Board, 	by
unanimous 	vote, 	opted 	for 	unit 	determination 	by 	adjudication
lAuthority 	for 	the 	Board's 	and 	general 	counsel's 	actions
derive 	from 	section 	3520.S(b) 	of 	the 	State 	Employer 	Employee
Relations 	Act 	(codified 	at 	Gov. 	Code 	sec. 	3512 	et 	seq) 	and
California 	Administrative 	Code, 	title 	8, 	sections 	41120-41140.
2

process
	and
	further
	decided
	to 	consolidate
	all
	petitions 	filed
into
	a
	single
	case.2
However,
	in 	recognition 	of
	the
	extraordinary
	volume
	of
complex
	issues
	and
	conflicting
	evidence
	that
	would
	probably
	be
presented,
	and
	mindful
	of
	the 	concerns 	expressed
	by
	the
parties,
	the
	Board
	provided 	the
	general
	counsel
	with
	the
flexibility
	in
	conducting
	the 	hearing
	that
	was 	deemed
	necessary
for 	reasonable 	expedition
	of
	the
	total
	uniting 	process.3
Ultimately,
	54
	petitions
	were
	timely
	filed.
	Proposed
	units
varied
	in
	many
	respects;
	some 	were
	departmental 	in
	scope,
others
	were
	based
	on
	allegedly 	related
	classifications
	or
related
	functions.
	The 	number
	of
	employees
	covered
	by
individual
	petitions
	ranged
	from 	21
	to
	30,340
	in
	some
	3,500
classifications.-
Eventually, 	the 	general 	counsel,
	after
	meetings 	with
	the
interested 	parties,
	decided
	to 	subdivide 	the
	consolidated
hearing 	into
	17
	subhearings.
	Essentially,
	each
	of 	these
subhearings
	encompasses
	a
	group
	of
	employment
	classifications
covered
	by
	overlapping
	petitions.
	In
	some
	instances,
	the
	same
issues
	may
	nevertheless 	arise
	in
	two
	or
	more
	subhearings.
Though
	the
	17
	subhearings 	are 	obviously 	not 	congruent 	with 	the
54
	petitions,
	4
	of
	them 	do
	square 	with
	specific 	petitions.
2Public 	hearings
	on
	the 	development
	of 	rules 	covering 	the
unit 	determination 	process
	were 	held
	on
	January 	3, 	February 	7,
March
	7, 	April 	4, 	April 	19, 	June 	21 	and 	22, 	and 	June 	28 	and 	29,
1978.
	PERB
	adopted 	the 	current 	rules
	on 	June 	29, 	1978. 	They
became
	effective 	July 	1, 	1978.
3cal.
	Admin. 	Code,
	tit.
	8, 	sec. 	41140, 	supra.
3

There
	is
	no
	doubt
	that
	copi~g
	with
	the 	requirement
	of
providing
	the
	parties
	with 	adequate
	opportunity 	to
	present
their
	cases 	in
	full
	and
	arriving
	at
	a
	final
	resolution 	of
	the
uniting
	process 	in 	reasonable 	time, 	in 	the
	face
	of
	the
complexity
	of
	the
	problem
	already
	mentioned,
	will
	result
	in
some
	inconvenience
	to
	some
	groups.
However,
	the
	Board
	will
	not 	consider
	whether
	the
	system
developed
	by
	the
	general
	counsel
	is
	the
	best 	possible
	one
	under
the 	circumstances.
	The
	Board
	will
	not
	interfere
	with 	the
general 	counsel's
	management
	of
	cases
	which
	does
	not
	violate
Board
	regulation
	or
	due
	process.
	Here,
	the 	general 	counsel 	has
established
	a
	procedure
	which
	appears
	to 	guarantee
	to
	each
party
	the
	right
	to
	examine
	witnesses
	and
	otherwise
	produce
relevant
	evidence, 	as 	well
	as
	to
	make
	its
	case-in-chief
	before
the 	conclusion 	of
	the
	consolidated 	hearing.
	Open 	and
	closing
arguments
	are 	likewise 	authorized.
	A
review
	of 	the
	general
counsel's
	plan 	reveals 	to
	this
	Board 	no
	failure
	of
	due
	process
nor 	any
	discernible 	bias
	towards
	predisposition 	of 	uniting
issues.
	The 	Board
	considers 	the
	acknowledged
	inconvenience 	as
an
	acceptable 	price 	for 	the
	realization
	of
	the 	mutual
objectives
	sought
	by
	the
	parties
	and 	PERB.
Analysis 	of
	CSEA's
	objections
	on
	appeal
	fails
	to
	modify
this
	conclusion.
	Those
	objections
	may 	be 	summarized
	as 	follows:
1.	
Because
	its
	proposed
	units 	are 	broader 	than
the 	scope 	of 	certain 	subhearings 	(for 	example,
	its
4

general
	medical
	unit
	overlaps
	subhearings
	on
registered
	nurses, 	doctors
	and
	dentists,
	technicians,
other
	patient
	care 	personnel),
	CSEA
	is
	reduced
	to 	the
status
	of
	an
	"intervenor."
2.	
CSEA
	must
	decide
	where
	to 	put
	on
	its
case-in-chief; 	different
	hearing
	officers
	in
	different
subhearings
	may
	hear
	the
	same
	issues.
3.	
The 	17
	subhearings
	constitute
	"back-door
	rule
making"
	since
	the
	structure
	implies
	that
	17
	units 	will
be
	determined
	and
	some
	of 	the
	parties
	so
	believe.
The
	fact 	that
	the 	general 	counsel
	has
	provided 	for
subhearings
	should 	not 	obscure 	the
	fact 	that
	only
	a
	single
hearing
	is
	being 	conducted.
	Only 	one
	final
	record
	will
	be
established
	for
	review
	by
	the
	Board
	itself
	which
	will
	determine
units 	directly
	from
	that
	record.
	That
	single
	record
	will
	be
	a
compilation 	of
	the 	separate
	transcripts
	developed
	at
	the
subhearings.
	While
	it
	is
	possible 	that 	individual
	parties
	may
choose 	to 	see 	in 	the 	subhearing 	system
	a
	prediction 	of
	the
final
	uniting
	outcome,
	that
	would
	apparently
	be
	true
	as 	well
	if
the 	general 	counsel 	conducted 	only
	5
	subhearings, 	as
	CSEA
requests 	in
	its
	appeal.
	At 	any
	rate,
	the
	Board
	cannot 	take
responsibility
	for 	the 	speculations 	of 	individual
	parties,
assuming
	that
	they
	do
	in 	fact 	exist.
	Furthermore, 	the
	Board
considers 	the 	implication 	in 	the 	appeal 	language:
	"
.•.
the
structure
	presumes
	that
	17
	units 	are 	appropriate
...
" 	and
	that
5

CSEA 	is 	concerned 	" ... that 	17 	units 	will 	be 	forthcoming 	when
all 	is 	said 	and 	done" 	to 	be 	unworthy 	of 	consideration.
Inasmuch 	as 	all 	petitions 	are 	merged 	into 	a 	single
consolidated 	case, 	subdivided 	procedurally 	to 	facilitate 	the
presentation 	of 	evidence, 	it 	is 	difficult 	to 	follow 	the
argument 	that 	CSEA 	is 	reduced 	to 	"intervenor" 	status. 	All
parties 	are 	full 	participants. 	All 	may 	participate 	in 	any
portion 	of 	the 	presentations 	which 	touch 	their 	own 	interests,
whether 	by 	cross-examination 	or 	rebuttal. 	All 	parties 	will 	be
provided, 	if 	they 	so 	desire, 	with 	the 	opportunity 	to 	make 	their
own 	case-in-chief, 	before 	the 	conclusion 	of 	the 	process.
Finally, 	as 	to 	the 	point 	that 	different 	hearing 	officers
may 	hear 	the 	same 	evidence 	because 	of 	overlapping 	issues, 	the
Board 	will 	not 	presume 	to 	instruct 	the 	parties 	on 	the
management 	of 	their 	cases. 	It 	is 	sufficient 	to 	point 	out 	again
that 	under 	the 	general 	counsel's 	procedure 	there 	will 	be 	a
single 	record 	and 	duplication 	may 	be 	avoided 	by 	reference 	in 	a
particular 	subhearing 	to 	evidence 	already 	produced 	in 	a
different 	subhearing. 	Further, 	a 	party's 	total 	case 	can 	be
made 	both 	in 	its 	case-in-chief 	and 	final 	argument 	and 	briefs.
In 	summary, 	the 	central 	problem 	faced 	by 	the 	general
counsel 	was 	the 	control 	of 	the 	flow 	of 	anticipated 	evidentiary
material. 	If 	the 	waters 	occasionally 	become 	choppy, 	the 	Board
and 	apparently 	the 	other 	parties, 	consider 	them 	nevertheless
navigable.
For 	the 	reasons 	stated 	above, 	CSEA's 	appeal 	is 	hereby
dismissed.
6

ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that
	the
appeal
	filed
	by
	California
	School 	Employees'
	Association
	to 	set
aside
	the
	PERB
	general
	counsel's
	hearing
	procedure
	is
	hereby
dismissed.
By: 	,,H:r~'y/&iuck,
	Cha1.rperson	
Rayμ(ond
	J.
	Gorlzales
/'Memb
e-i?'
.
	\n----.--
Je?i?5u
	Cossack
	Twoney,
	Membei:V
7