Decision 1958E – Grossmont-Cuyamaca Community College District

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.

[Continued] The Student Services VPs are managerial positions because: (1) they are part of the college President’s cabinet whose members have significant responsibilities in formulating policy recommendations which the college Presidents take to the Chancellor; (2) they have significant responsibilities for implementing the student services program, a district program which entails working with six student services managers to insure all the different student services programs are well designed, planned, implemented and coordinated; and (3) they manage the division’s budget. The Administrative Deans are managerial positions because: (1) they report directly to the college Presidents and are members of the Presidents’ cabinets; (2) they are responsible for working with the college President in developing recommendations for District policies; (3) one Administrative Dean oversees all aspects of her college’s $23 million budget and has responsibility for all college facilities including maintenance and new construction; and (4) another college’s Administrative Dean is responsible for the operations of the business office, printing services, mailroom, maintenance facilities and custodial on-grounds and reviews all expenditures for the college. We find that the Legislature intended the term “district policies” in EERA section 3540.1(g) to mean policies which are adopted by the District or which are made at the District level regardless of whether they have “district-wide” application. The words of EERA section 3540.1(g) do not indicate that the word “district” is intended to mean “district-wide.” We decline to reevaluate the conjunctive versus disjunctive issue regarding EERA section 3540.1(g) because the Legislature has indicated that it agrees with Lompoc Unified School District (1977) EERB Decision No. 13’s (Lompoc) interpretation. In doing so we are guided by the fundamental rule in construing a statute that the court (or PERB) should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (North Orange County Regional Occupational Program (1990) PERB Decision No. 857 citing Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.) In Sonoma County Bd. of Education v. Public Employment Relations Bd. (1980) 102 Cal.App.3d 689, 700 (Sonoma) the reviewing court was tasked with interpreting the scope of a statute where the meaning and effect had earlier been analyzed in an opinion of the attorney general. Relevant to this case, the Sonoma court held that “the failure of the Legislature to amend the statute following publication of the Attorney General’s opinion supports an inference that the legislative intent therein was correctly construed [citations omitted] . . .” The Sonoma court noted with regard to opinions of the Attorney General that such an official interpretation is not controlling but it is nevertheless entitled to great weight. (Sonoma, supra, at p. 699.) We opine that the same is true, if not more so, of PERB opinions given courts have uniformly held that PERB’s construction is to be regarded with deference by a court performing the judicial function of statutory construction, and will generally be followed unless it is clearly erroneous. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856.) We therefore find that the same inference can be drawn from the Legislature’s failure to amend a statute after PERB has interpreted the Legislature’s intent as to such statutory language. For the same reason we find that there is an inference that the Legislature’s intent is properly expressed in Lompoc as to EERA section 3540.1(g). The language of Section 3540.1(g) is the same today as it was when enacted in 1975. (Stats. 1975, ch. 961, sec. 2, p. 2248.) The Legislature has not amended it to have a meaning different than that articulated in Lompoc in 1977. This inference becomes even stronger with the Legislature’s use of the same disjunctive word, “or”, in its definition of management employee in HEERA. Notably, HEERA’s statutory provision defining “management employee” was enacted after PERB interpreted EERA section 3540.1(g) in Lompoc.

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.)

Witness’ contradictory testimony not credited where other testimony by the witness shows a strong and negative bias.

In construing a statute, we begin with the fundamental rule that we should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 (Moyer); North Orange County Regional Occupational Program (1990) PERB Decision No. 857 (NOCROP.) “Where the language of a statute is clear and unambiguous, the construction intended by the Legislature is obvious from the language used.” (NOCROP and cases cited therein.) Additionally, statutes are to “be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers.” (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18; Inglewood Unified School District (1991) PERB Order No. Ad-222.) The reasonable and commonsense interpretation of the word “district” in the terms “district policies” and “district programs” in EERA section 3540.1(g) is that they are policies which have to be approved at the district level and programs which were created with district level approval. Moreover, we find there is no language in EERA which indicates the Legislature intended the words “district policies” to mean “district-wide policies.” The same is true under another well established cannon of judicial construction, that “every statute should be construed with reference to the whole system of which it is a part so that all may be harmonized and have effect.” (Joint Powers Board of Directors, Tulare County Organization for Vocational Education, Regional Occupational Center and Program (1978) PERB Decision No. 57 citing People v. Hacker Emporium, Inc. (1971) 15 Cal.App.3d 474, 477.) “Where the provisions of a statute are subject to two or more reasonable interpretations, that which will harmonize rather than conflict with other provisions thereof should be adopted.” (San Bernardino City Unified School District (1989) PERB Decision No. 723 citing People v. Kuhn (1963) 216 Cal.App.2d 695, 698.) As a matter of statutory construction, “a word or phrase repeated in a statute should be given the same meaning throughout. [Citation omitted.]” (People v. Nguyen (1999) 21 Cal.4th 197, 205.) Giving the same meaning to “district policies” in both EERA sections 3540 and 3540.1(g), we find that the Legislature intended the term “district policies” in EERA section 3540.1(g) to mean any policy decision by community college district boards whether the policies apply district-wide or to individual colleges. We decline to reevaluate the conjunctive versus disjunctive issue regarding EERA section 3540.1(g) because the Legislature has indicated that it agrees with Lompoc Unified School District (1977) EERB Decision No. 13’s (Lompoc) interpretation. In doing so we are guided by the fundamental rule in construing a statute that the court (of PERB) should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (NOCROP citing Moyer.) In Sonoma County Bd. of Education v. Public Employment Relations Bd. (1980) 102 Cal.App.3d 689, 700 (Sonoma), the reviewing court was tasked with interpreting the scope of a statute where the meaning and effect had earlier been analyzed in an opinion of the attorney general. Relevant to this case, the Sonoma court held that “the failure of the Legislature to amend the statute following publication of the Attorney General’s opinion supports an inference that the legislative intent therein was correctly construed [citations omitted] . . .” The Sonoma court noted with regard to opinions of the attorney general that such an official interpretation is not controlling but it is nevertheless entitled to great weight. (Sonoma, supra, at p. 699.) We opine that the same is true, if not more so, of PERB opinions given courts have uniformly held that PERB’s construction is to be regarded with deference by a court performing the judicial function of statutory construction, and will generally be followed unless it is clearly erroneous. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856.) We therefore find that the same inference can be drawn from the Legislature’s failure to amend a statute after PERB has interpreted the Legislature’s intent as to such statutory language. For the same reason we find that there is an inference that the Legislature’s intent is properly expressed in Lompoc as to EERA section 3540.1(g). The language of Section 3540.1(g) is the same today as it was when enacted in 1975. (Stats. 1975, ch. 961, sec. 2, p. 2248.) The Legislature has not amended it to have a meaning different than that articulated in Lompoc in 1977. This inference becomes even stronger with the Legislature’s use of the same disjunctive word, “or”, in its definition of management employee in HEERA. Notably, HEERA’s statutory provision defining “management employee” was enacted after PERB interpreted EERA section 3540.1(g) in Lompoc.