PARTIES; DEFINITIONS; WHO IS AN EMPLOYEE? (SEE 502 AND 1309) – Managerial and Confidential

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The determination of whether a position is managerial is a question of law and fact and must be answered in terms of the employees’ actual job responsibilities, authority and relationship to the employer. (Hartnell Community College District (1979) PERB Decision No. 81 (Hartnell).) EERA’s requirement that a management employee position must have “significant responsibilities for formulating district policies” has been held to mean that the position must entail discretionary authority to develop or modify institutional goals and priorities. (Hartnell.) The requirement that a managerial employee position must have significant responsibility for administering district programs involves the authority to implement district programs through the exercise of independent judgment and contemplates positions where the employee has discretion in performance of their job beyond that which must conform to an employer’s established policy. (Hartnell.) The facts must establish that the employee is clearly allied with management and that their decisions are made independent of, rather than under the direction and control of the management team. (Paramount Unified School District (1977) EERB Decision No. 33.) The statutory criteria for a management employee is whether the position has discretionary authority to develop and modify institutional goals and priorities. (Sacramento City Unified School District (2005) PERB Decision No. 1773.) Applying this criteria under the District’s decision making structure where only the District Board can modify policy results in responsibilities for “developing and modifying institutional goals and priorities” being the development of policies and priorities to recommend to the District Board and recommending modifications. The definition of a management employee should be interpreted narrowly and the party arguing for exclusion from a supervisory bargaining unit based on managerial status has the burden of proof by a preponderance of the evidence. (San Francisco Unified School District (1977) EERB Decision No. 23.) We note that if the word “district” is interpreted too narrowly, a district is left without a sufficient core of managers to make management decisions. In this regard we reference the Board’s conclusion in Unit Determination for Professional Scientists and Engineers, Lawrence Livermore National Laboratory, of the University of California (1983) PERB Decision No. 246b-H that an employer “has an interest in being assured of a cadre of employees whose loyalty will not be compromised by concurrent obligations to the interests of those employees who are entitled to negotiate wages, hours and terms and conditions of employment.” At the same time we take cognizance that applying this criteria too broadly results in wrongly depriving school employees of their collective bargaining rights under EERA. We have therefore endeavored to approach our above task very conservatively. The Senior Director position qualifies as a management position because the Senior Director: (1) is one of five members of the Chancellor’s cabinet which is charged with the responsibility of reviewing all of the policies which are forwarded to the District Board; (2) the Chancellor routinely accepts the Senior Director’s recommendations; and (3) the Senior Director has significant responsibilities in formulating district policy and is closely allied with management. The Senior Director also has significant responsibility to administer District programs as she works with the college Presidents the community and with governmental entities to develop grants and initiatives. Finally, in tracking and being responsible for legislative issues and taking the lead and initiative in developing the projects and/or programs that the District should be supporting and playing a role in, the Senior Director administers the District’s legislative program. The Associate Vice Chancellor’s position is managerial and has significant responsibilities both for the development of district policy and implementing District programs because: (1) he is closely allied with management; (2) takes the lead in formulating strategic plans at individual colleges and from them creates a District-wide plan; (3) developed a recommendation for a condensed calendar which changes the whole structure at each campus; and (4) plays a key role in planning of the environmental scan of the District’s community which is part of the District’s planning process.