State of California (Department of Transportation and Industrial Relations) (Professional Engineers in California Government) (PERB A136S)

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
STATE
	OF
	CALIFORNIA,
	(DEPARTMENTS
	OF
TRANSPORTATION	
&	
INDUSTRIAL
	RELATIONS
Employer,
and
PROFESSIONAL
	ENGINEERS
	IN CALIFORNIA
GQVERNMENT,
Employee
	Organization,
APPELLANT.
)
))
)
)
)
)
)
)
)
)
)
)
______________________
)
Case 	No.
	S-SR-9-1S
PERB
	Order
	No.
	Ad-136-S
Administrative
	Appeal
May
	16,
	1983
Appearances:	
Ba·rbara T.
	Stuart,
	Attorney 	for 	the
	State 	of
California
	(Departments
of Transportation
	and
	IndustrialRelations);
	Ernest
	F.
	Schulzke, 	Attorney 	for
	Professional
Engineers 	in
	California
	Government.
Before 	Tovar, 	Jaeger
	and
	Burt,
	Members.
DECISION
TqVAR, 	Member: 	The
	Professional
	Engineers 	in
	California
Government
	(PECG)
	appeal
	a
	determination
	by
	the
	Sacramento
regional 	director 	that
	it
	is
	not
	within 	the
	statutory
jurisdiction
	of 	the 	Public
	Employment
	Relations
	Board 	(PERE
	or
Board)
	to
	determine 	whether 	or 	not
	an 	employee
	is
	supervisory
as 	opposed
	to 	managerial 	or
	confidential.
	After 	considering
the
	entire
	record 	in
	light 	of
	the 	appeal, 	the
	Board
	affirms
	the
regional
	director's
	find~ngs
	and
	conclusions 	attached 	hereto,
and
	affirms
	her
	administrative 	determinations.
ORDER
The 	Board 	AFFIRMS
	the 	determinations 	of 	the 	Sacramento
regional 	director,
	and 	DENIES
	the 	appeal.
Members 	Jaeger 	and 	Burt 	joined 	in 	this 	Decision.

STATE
	OF
	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
STATE
	OF
	CALIFORNIA,
Employer,
a~
PROFESSIONAL	
ENGINEERS
	IN
	CALIFORNIA
~wm~~,
Employee
	Organizatioq.
)
)
)
)
}
)
)
)
)
)
	____________________
)
Case
	No.
	S-SR-9-1S
April
	28,
	1982
PROCEDURAL
	HISTORY
On
	December
	18, 	1981,
	the
	Professional
	Engineers
	in
California
	Government
	{hereafter
	PECG)
	filed
	with
	the
Sacramento
	regional
	office
	a
	request
	that
	the
	Public
Employment
Relations
	Board
	{hereafter
	PE.BB
	or
	Board)
	determine
	that
employees
	in
	the
	classification
	Regional
	Manager,
	Division
	of
Industrial
	Safety 	are 	supervisory
	employees 	as 	opposed
	to
managerial
	employees 	as
	defined	
by	
the
	State
	Employer-Employee
Relations
	Act
	(hereafter
	SEERA)
. l	
This
	filing
	incorporated
by	
reference
	an
	earlier 	letter
	to 	the 	regional
	office 	(tiled
December 	4, 	1981) 	which
	outlined
	PECG's
	position
	on
	this 	issue.
On
	January 	11, 	1982,
	I
	requested 	the
	state
	employer
	to
	file
a
	response 	to 	the
	PECG
	request	
by	
January
	26, 	1982.
	On
January 	25, 	1982,
	PECG
	filed
	with 	the 	Sacramento
	regional
1sEERA
	is 	codified 	at
	Government 	Code
	section
	3512
	et
	seq.

office
	a
	request
	that
	PERE
	determine
	that
	Mr.
	Jerry
	Drennan,
	a
Supervising 	Transportation
	Engineer,
	in
	Caltrans
	District
	2,
~is
a
	supervisory
	and
	not
	a
	managerial
	employee
	under
	SEERAe
	The
state
	~~player 	responded
	to
	both
	r~quests
	on
	February
	2, 	1982.
I
	then 	afforded
	PECG
	an
	opportunity
	to
	file
	a
	response	
to	
the
state
	employer's
	filing
	of 	February
	2,
	19~2.
	The
	PECG
	response
was
	received
	on March
	18,
	1982.
ISSUES
In
	letters
	received
	on
	December
	4,
	1981
	and
	March
	18,
	1982,
PECG
	raises
	the
	issue
	of
	an
	employee
	organization's 	right
	to
file
	an
	unfair
	practice
	charge
	alleging 	that
	its
	right
	to
represent
	its
	supervisory
	members
	has 	been
	denied.
	PECG
	asks
that
	PERE	
"reconsider
	its
	earlier
	ruling
11
to
	deny 	access 	to 	the
unfair 	practice
	procedures 	in
	such
	cases.
	The
	Board
	dealt
specifically
	and
	definitively
	with
	this
	issue 	in 	Professional
Engineers 	in
	California
	Government
	(PECG)
	v.
	State
	of
California,
	(3/19/80)
	PERS
	Decision
	No.
	118-S.
	A
petition
	for
a
	writ
	of
	extraordinary
	relief
	filed
	with 	the
	court
	of
	appeal
within
	30
	days
	after
	issuance 	of 	the 	Board's 	order 	in
	this
	case
would 	have 	been
	the 	only 	appropriate
	forum
	in
	which
	to
	seek
review 	of 	the
	decision.
	No
	such
	petition
	was
	tiled.
	This
issue 	is 	inappropriately 	raised
	with 	the 	regional 	director
	and
will
	not
	be
	addressed 	herein.
PECG
	requests
	PERS
	to
	make 	a
	finding 	that
	a
	particular
civil
	service 	classification
	(Regional 	Manager,
	Division 	of
2

Industrial Safety) 	and 	a 	particular 	civil 	service 	position
(that 	of 	Mr. 	Jerry 	Drennan, 	Supervising 	Transportation
Engineer) 	are 	supervisory 	and 	not 	managerial 	under 	SEERA. 	The
state 	employer 	contends 	that 	PERB 	does 	not 	have 	the 	authority
to 	determine· whether 	a 	state 	employee 	excluded 	from 	bargaining
units 	is 	managerial 	or 	supervisory.
Prior 	to 	rea~hing 	the 	questions 	raised 	by 	PECG, 	the 	issue
of 	whether 	or 	not 	PEBB 	has 	jurisdiction 	to 	resolve 	those
.
questions 	must 	be 	decided. 	As 	stated 	to 	the 	parties 	in 	my
·letter of 	March 	8, 	1982, 	this 	determination 	will 	be 	limited 	to
the 	jurisdictional 	issue.
DISCUSSION
PECG 	argues 	that _o_r:,.]:y :!?ERB 	has 	jurisdiction 	to 	resolve 	the
managerial 	versus 	supervisory 	status 	of 	employees 	excluded 	from
bar gaining 	uni ts 	under 	SEERA. 	To 	support 	its 	contention, 	PECG
points 	out 	that 	the 	Educational 	Employment 	Relations 	Act
(hereafter 	EEAA)2 	authorizes 	school 	district 	employers 	to
designate 	management 	positions, 	but 	that 	SEERA 	contains 	no 	such
authorization. 	They 	further 	argue 	that 	an 	earlier 	attempt 	by
the 	state 	employer 	to 	deny 	PERB 	its 	jurisdiction 	to 	make 	this
determination 	failed 	(citing 	In 	Re: 	The 	State 	Emolover-
Emoloyee 	Relations 	Act, 	Phase 	III 	Unit 	Determination 	Proceeding
{10/18/79) 	PERE 	Order 	No. 	Ad-79-S). 	PECG 	also 	contends 	that
2EEAA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
3

"PERB
	policy"
	that
	employees
	are
	to
	be
	afforded
	maximum
representation 	rights
	unless
	it
	.is
	proven
	that
	lesser 	rights,·
are
	more
	appropriate
	is
	equally 	applicable
	to 	the
	determination
of
	supervisory 	versus
	managerial
	status.
The
	state
	employer,
	on
	the 	other 	hand, 	takes
	the
	position
that
	PERE
	does 	not 	have
	the
	authority 	to
	make 	a
	ruling
	on
	the
issue
	raiserl	
by	
PECG.
	The
	employer
	contends
	that
	P~CG's
request
	is,
	in
	reality,
	nothing
	more
	than
	a
	disguised
	unfair
practice
	charge
	that
	PECG
	is
	being
	denied
	its
	right
	to
represent
	supervisory
	employees.
	The
	employer
	argues
	that
	PERB
does
	not
	have
	the
	authority
	to 	determine
	appropriate
supervisory 	bargaining
	units,
	and 	did 	not,
	when
	excluding
employees
	f ram
	rank
	and
	file
	SEERA
	bargaining
	uni
ts
..
	focus
	on
the
	distinction
	between
	various
	reasons
	for 	exclusion.
	The
employer
	further
	maintains
	that
	PERB
	is 	prohibited	
by	
statute
from 	assuming
	jurisdiction
	to 	decide
	the
	issue
	of 	managerial
versus 	supervisory
	status
	of
	state
	.employees.
First,
	I
	reject
	the 	employer's
	argument
	that
	PECG's
	request
is
	simply
	an
	unfair 	practice
	charge
	relating
	to
	PECG's
	right
	to
represent 	supervisors.
	The
	determination 	that
	an 	employee
	is
or 	is 	not
	a
	supervisor,
	a 	manager 	or
	a
	confidential
	employee
involves 	application
	and
	perhaps
	interpretation
	of
	statutory
definitions
	of 	these 	categories.
	It
	is
	an
	entirely 	different
matter 	to 	allege
	a
	violation
	of 	a
	supervisory
	employee I s
4

rights,
	or
	violation
	of
	an
	organization's
	right
	to
	represent
supervisory
	employees.
	Such
	allegations 	actually
	presuppose'a
finding
	that
	tbe
	employees
	in
	question
	are, 	in
	fact,
supervisory
	employees.
Secondly, 	while
	it
	is
	true
	that
	the
	employer
	previously
raised
	the
	question 	of
	PERB's
	jurisdiction
	to
	specifically
designate
	an 	employee
	as
	managerial,
	supervisory or
confidential,
	it
	is
	not
	true,
	as
	PECG
	suggests,
	that
	the 	Board
rejected 	this
	argument
•.
	Rather,
	in
	its
	decision
	In
	Re:
	The
State
	EmQloyer-EmPloyee
	Relations
	Act,
	Phase
	III
	Unit
Determination 	Proceeding,
	supra, 	the
	Board 	found
	it
	unnecessary
to
	respond
·to
	the 	employer's 	contention
	that
	it
	(the	
Board)	
was
.
without
	jurisdiction
	to
	specifically
	designate·such
	~~ploye~s,
for
	to 	do 	so
	would
	confront
	an
	issue
	not 	in 	controversy.
It
	is
	relevant 	to
	this
	determination
	to
	examine 	more
closely
	the
	nPhase
	III"
	or
	exclusionary 	process
	recently
concluded
	Lmder 	SEERA.
	In
	its
	decision 	In
	Re: 	The
	State
Employer-Employee
	Relations
	Act, 	Phase
	III
	Unit 	Determination
Proceeding, 	supra,
	page 	2,
	the
	Board
	stated
• 	. 	.	
that
	it
	. 	. 	. 	views
	the 	focus 	of
	the
Phase
	III
	Lmit
	determination 	proceedings 	tobe 	a	
determination 	of 	those
	rank 	and
	file
employees
	who
	are 	to	
be	
included 	in
	thedesign_ated
	appropriate
	uni
ts.
	However,
	theburden
	is
	on 	the
	State--and
	any
	other 	party
which 	may
	seek 	to
	exclude 	e~ployees
	from
units
	because 	of 	alleged 	managerial,
supervisory 	or
	confidential 	status--to
affirmatively 	justify 	their 	exclusion. 	This
s

can	
be	
done	
by 	showing
	evidence
	of
	actual
job
	requirements
	which 	would
	disqualify
	the
subject
	a~ployees
	from
	placement
	in
representation 	units
	irrespective
	of
	which
exclusionary
	category 	those
	employees
	may
fit.
In
	its
	actual 	decision
	outlining
	classifications
	and
	positions
excluded
	from
	SEERA
	units
	(In
	Re:
	1Jnit
Determination
	for 	the
State
	of
	California
	(12/31/80)
	PERB
	Decision
	No.
	ll0c-S,
page
	1)
	the
	Board
	reaffirmed
	this 	position.
That 	the
	Board
	chose
	to 	focus
	an
	inclusions
	as 	opposed
	to
exclusions,
	and
	when
	confronted
	with 	the
	precise
	jurisdictional
question
	of
	the
	instant
	case, 	declared
	it
	not
	to	
be	
an
	issue
	in
controversy, 	supports
	the 	employer's
	contention
	that
	PEBB's
findings
	in
	the
	Phase
	III
	unit
	determination
	were
	not
	absolute
as
	to
	management,
	supervisory
	or
	confidential 	status
	of
employees.
	It
	is
	further
	noted
	that
	both
	civil
	service
classifications
	covered	
by	
this
	case
	were
	included	
by	
the 	Soard
in
	its
	decision
	on 	a
	list
	entitled,
	"Excluded
	Supervisory/
Manager
i
al/Confidential
	Class
if
i
cati
ans."
3
The 	employer
	argues
	that
	PERB
	is
	not
	authorized	
by	
statute
to
	make 	a
	determination 	that
	an 	employee
	is
	supervisory 	as
opposed 	to
	management
	or 	confi
den
ti al.
	I
	find
	ample
justification
	to 	support 	the 	employer's 	claim.
3 rn 	Re:
	Unit 	Determination 	for 	the
	State
	of
	California(12/31/80)
	PERS
	Decision
	No.
	llOc-s,
	pages 	B-107 	through 	B-116.
,,.
0

Government
Code
	section
	3522
	provides:
Except
	as
	provided	
by	
Secti
ans
	3522
.1
	to
3522.
9,
	inclusive,
.supervisory
	employees
shall
	not
	have
	the
	rights
	or
	be
	covered
	bvany
	provision 	or
	definition
	established
	bv
this
	chapter.4	
(Emphasis.added.)
As
	discussed
	earlier,
	the
	Board
	has,
	in 	interpreting
	this
section,
	made 	a	
finding
	that
	the
	unfair
	practice	
mechanisms	
of
SE.ERAS	
are
	not
	available 	to
	supervisors
	or
	employee
organizations 	seeking
	to 	enforce
	a
	right 	solely
	related
	to
supervisors.6	
The 	Board
	discusses
	its
	powers 	and
	duties
	as
related
	to
	supervisors
	in
California
	State
	Employees
Association 	v. 	State
	of
	California,
	Department 	of
	Health
(l/10/79)
	PERS
	Decision
	No.
	86-S.
	On
	page
	4
	of
	this 	decision
the
	Board 	notes
	that
	Government 	Code
	section 	3513(g),
	in
pertinent 	part, 	states:
The 	powers 	and
	duties
	of
	the
	board
	described
in 	section
	3541.3
	shall
	also 	apply,	
I!§.
appropriate, 	to
	this 	chapter.
	(Emphasis
added.)
4Government 	Code
	sections
	3522.1 	through 	3522.9
	definethe
	term
	supervisory
	employee
	(section
	3522.1)
,•outline 	rights
and	
prohibitions 	related
	to 	supervisory
	employees
	(sections3522.2, 	3522.3, 	3522.4
	and
	3522.8)
	,
	define 	the 	scope
	of
representation
	and 	meet 	and
	confer
	rights
	and
	obligations
relating
	to 	supervisory
	employees
	(sections 	3522.5, 	3524.6,3522.65
	amd 	3522.
7),
	and
	grant 	authority· to 	the 	employer
	to
adopt
	rules
	and
	regulations 	for 	the 	administration
	of
supervisory
	employer-e.rnployee
	relations 	(section
	35
22.
9) .
SGovernment 	Code
	section
	3519.
6
Professional 	Engineers 	in California
	Government
	(PECG)
v. 	State 	of 	California,
	(3/19/80)
	PERB
	Decision
	No. 	118-.S.
7

In
	looking
	at
	the
	specifically
	enl.lmerated
	powers
	of
	section
3541.3, 	the
	Board
	selects
	perhaps
	the
	broadest
	one,
	section
3541.3(n)
	which
	allows
	PERB
	to
	take
	such
	other
	action
	dea~ed
necessary
	to
	effectuate
	the
	purposes 	of 	the
	statute,
	and
decJ..ares
	that 	this
	section
	is
	inapplicable
	to
	supervisors.
	The
decision
	goes
	on
	to
	say
	that
	nthe
	statutory
	scheme
	indicates
	an
intention
	to
	exclude
	supervisors
	from
	PERB
	ju:risdiction.
111
{Page
	6.)
.-
In 	reviewing 	the
	powers
	arid
	duties
	of 	the 	Board,
	and-all
sections
	of
	SEERA
	relating
	to
	supervisors,
	I
	can
	find
	no
provision
	which 	would
	arguably
	authorize
	PE.RB
	to
	assume
jurisdiction
	for
	deciding
	that
	an
	employee
	is
	a
	supervisor
	as
opposed 	t?	
a
	manager.
	R?ther,
	section
	3522.9 	of
	SEE.AA
	g~ants
to
	the
	emoloyer
	the
	authority
	to
	adopt 	rules
	and
	regulations
for
	the
	administration
	of
	supervisory
	employee
	relations.
	The
sections 	of
	SEERA
	over
	which
	the
	employer
	is
	granted
	rule
making
	authority
	(sections 	3522.1
	to
	3522.9
	inclusive) 	include
the 	sec
ti
on 	which
	defines
	the
	term
	s upe.!:'v
isory
·employee
..
Although
	it
	is
	true
	that
	the 	Board,
	in
	the
	SEERA
	Phase
	III
exclusionary 	process, 	interpreted
	Go~1ernment 	Code
	section
3522.l
	which
	defines
	a
	supervisory
	employee,
	it
	is 	clear,
	as
discussed
	earlier,
	that
	any
	findings
	made
	pursuant 	to 	this
definition
	were
	for 	the 	purpose 	of
	exercising
	the 	Board's
	power
"to 	determine 	in 	disputed 	cases, 	or 	otherwise 	approve,
appropriate 	units."
	(Government
	Code
	section 	3541.J(a) .)
8

PECG
	points
	out
	that,
	unlike
	the
	EERA,
	SEER.A
	does
	not
contain
	a
	provision 	authorizing
	the
	employer
	to
	designate
management
	positions.
	They
	argue
	that
	only
	PERB,
	therefore,
has
	the
	authority
	to
	do
	so,
	and
	th~s 	to
	distinguish
	between
management
	and
	supervisory
	employees.
	I
	disagree.
	Government
Code
	section
	3534
	provides
	that:
.	
the
	state
	may
	adopt 	reasonable
	rules
and
	regulations
	providing 	for
	designation
	of
the
	management 	and
	confidential
	employees
	of
the
	state.	
• 	. 	.
This
	section
	of
	the
	Government
	Code
	is
	not
	within
	SEE.RA,
	or
any
	other
	statute
	which
	PERE
	administers.
	Its
	separate
existence 	is
	further 	substantiation
	of
	PERB's
	lack 	of
jurisdiction
	in
	the
	instant
	case.
Finally,
	PECG
	expresses
	the
	idea
	that,
	in 	essence, 	the
concept
	adopted 	by	
the
	Board
	in
	its
	Phase
	III
	dealings
	that
employees
	were
	to
	be
	included
	in
	rank
	and
	file
	units 	unless
	an
exclusionary
	claim
	~as
	proven, 	can
	be
	stretched
	to
	mean
	that
all
	employees
	excluded
	from
	rank
	and
	file
	units
	as
	"excluded
supervisory/managerial/confidential 	classifications"
	are 	to
	be
afforded
	the
	rights
	of 	supervisors
	until
	proven 	to
	be
managerial
	or
	confidential.
	Since
	I 	have 	concluded
	that
	PERE
does 	not
	have
	jurisdiction 	in 	this
	matter,
	I 	make 	no
	finding
regarding 	this
	argument.
9

ORDER
For
	the 	reasons
	enumerated 	above,
	the
	requests
	that
	PERE•
determine
	that
	the
	classification
	of 	Regional
	Manager,
	Division
of
	Industrial
	Safety,
	and
	the
	position
	of
	Mr.
	Jerry
	Drennan,
Supervising 	Transportation
	Engineer,
	CALTRANS
	are
	supervisory
are
	hereby
	dismissed.
An
	appeal 	of
	this
	decision
	may
	be 	made
	to 	the
	Board
	itself
within
	10
	calendar
	days
	of
	service
	of
	this
	decision
	by
	fiiing
	a
-statement
	of 	the
	facts
	upon
	which
	the
	appeal
	is
	based
	with
	the
Executive
	Assistant
	to 	the
	Board
	at
	1031
	18th
	Street,
Sacramento,
	California,
	95814.
	Copies 	of
	any
	appeal
	must
	be
concurrently
	served
	upon
	all
	parties
	and
	the
	Sacramento
regional
	office.
	Proof
	of
	service 	of
	the 	appeal 	must	
be
	filed
with 	the 	Ex~cutive
	Assistant.
~~t-E.
	Caraway
~ional
	Director
l.
0
...,
u