County of Santa Barbara (PERB 2181M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SHAWN TERRIS,
Charging Party, Case No. LA-CE-490-M
V. PERB Decision No. 2181-M
COUNTY OF SANTA BARBARA, May 26, 2011
Respondent.

Appearances: Bush, Gottlieb, Singer, Lopez, Kohanski, Adelstein & Dickenson by Ira L.
Gottlieb, Attorney, for Shawn Terris; Victoria Parks Tuttle, Deputy County Council, for
County of Santa Barbara.
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION

McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Shawn Terris (Terris) of a dismissal of her unfair practice
charge. The charge alleged that the County of Santa Barbara (County) violated the Meyers-
Milias-Brown Act (MMBA)! by retaliating against her for exercising her protected rights to
seek support for an employee organization. Terris alleged that this conduct constituted a
violation of MMBA section 3502 and PERB Regulation 32603(a).”

Terris is a program/business leader, a position designated by the County as a

management classification. According to Terris, the County discriminated against her in .

violation of the MMBA for attempting to organize lower level managers. The Board agent

‘ MMBA is codified at Government Code section 3500 et seq.

° PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

ruled that PERB lacked jurisdiction to investigate Terris' allegations because she was in a
management classification. Consequently, the Board agent dismissed the charge.
We have reviewed the entire record in this matter and find the dismissal well-reasoned,
adequately supported by the record and in accordance with applicable law. Accordingly, the
Board adopts the warning and dismissal letters (attached) as the decision
of
the Board itself,
subject to the following discussion.
DISCUSSION
In her appeal, Terris alleges the Board agent's decision wrongfully deprived her
of
meaningful access to PERB. However, in City
of
Beverly Hills (2004) PERB Decision
No. 1681-M (Beverly Hills), the Board held that challenges to employee designations are
properly conducted pursuant to the unit modification procedures set forth in the employer's
local rules. In this case, Terris alleges, among other things, that her position was wrongfully
designated by the County as a management classification. Thus, under Beverly Hills, Terris'
allegation regarding the mis-designation
of
her position must be asserted under the unit
modification procedures contained in the County's Employer-Employee Relations Policy.
The Board has held that parties may not utilize the unfair practice procedure to
circumvent the unit modification process. (Berkeley Unified School District (2005) PERB
Decision No. 1744.) Here, Terris is challenging the County's designation
of
her position as a
management classification without reference to the unit modification process. Therefore,
Terris' challenge is invalid and was properly dismissed.
2

ORDER
The unfair practice charge in Case No. LA-CE-490-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
3

ST ATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
f
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (8 I 8) 551-2809
Fax: (818) 551-2820
f
April 28, 2009
Ira L. Gottlieb, Attorney
Bush, Gottlieb, Singer, Lopez, Kohanski, Adelstein & Dickenson
500 North Central Ave., Suite 800
Glendale, CA 91203
Re: 	Shawn Terris v. County of Santa Barbara
Unfair Practice Charge No. LA-CE-490-M
DISMISSAL LETTER
Dear Mr. Gottlieb:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 20, 2008 and was amended on December 2 and 24, 2008
and on March 9, 2009. Shawn Terris (Ms. Terris or Charging Party) alleges that the County of
Santa Barbara (County) violated section 3502 of the Meyers-Milias-Brown Act (MMBA or
Act) 1 by retaliating against her for exercising her rights under the Act.
Ms. Terris was informed in the attached Warning Letter dated April 10, 2009, that the above-
referenced charge did not state a prima facie case. Ms. Terris was advised that, if there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in the
Warning Letter, she should amend the charge. Ms. Terris was further advised that, unless she
amended the charge to state a prima facie case or withdrew it prior to April 19, 2009, the
charge would be dismissed.
On April 16, 2009, Ms. Terris' attorney Pamela Chandran confirmed receipt of the April 10
Warning Letter. On April 20, 2009, Ms. Chandran requested an extension of time until April
27, 2009, to file an amended charge. Ms. Chandran's request was granted. However, on April
28, 2009, Ms. Chandran advised the undersigned that Ms. Terris decided not to file an
amended charge. 	Accordingly, the above-captioned charge is dismissed for the reasons
contained in the April 10 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,2 Ms. Terris may obtain a review of this dismissal of the charge
by filing an appeal to the Board itself within twenty (20) calendar days after service of this
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-490-M
April 28, 2009
Page 2
dismissal. (Cal. Code Regs, tit. 8, sec. 32635(a).) Any document filed with the Board must
contain the case name and number, and the original and five (5) copies
of
all documents must
be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit.
8,
secs. 32135(a) and 32130; see also Gov. Code, sec. l 1020(a).) A
document is also considered "filed" when received by facsimile transmission before the close
of
business together with a Facsimile Transmission Cover Sheet which meets the requirements
of
PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number
of
copies and proof
of
service, in the U.S. mail. 	(Cal. Code Regs, tit. 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit.
8,
secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If Ms. Terris files a timely appeal of the refusal to issue a complaint, any other party may file
with the Board an original and five copies of a statement in opposition within twenty (20)
calendar days following the date of service of the appeal. (Cal. Code Regs, tit. 8,
sec. 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, sec. 32140 for the required
contents.) The document ,vill be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. Adocument
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, sec. 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with 	Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.)

LA-CE-490-M
April 28, 2009
Page 3
Final Date
If no appeal
is
filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMIR.
BOGERT
General Counsel
Sean McKee
Regional Attorney
Attachment
cc: 	Victoria Parks Tuttle, Deputy County Counsel

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
s
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
f
April 10, 2009
Ira L. Gottlieb, Attorney
Bush, Gottlieb, Singer, Lopez, Kohanski, Adelstein & Dickenson
500 North Central Ave., Suite 800
Glendale, CA 91203
Re: 	Shawn Terris v. County of Santa Barbara
Unfair Practice Charge No. LA-CE-490-M
WARNING LETTER
Dear Mr. Gottlieb:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 20, 2008 and was amended on December 2 and 24, 2008
and on March 9, 2009. Shawn Terris (Ms. Terris or Charging Party) alleges that the County of
Santa Barbara (County) violated section 3502 of the Meyers-Milias-Brown Act (MMBA or
Act) 1 by retaliating against her for exercising her rights under the Act.
Background
The County is a "public agency" within the meaning of MMBA section 3501(c). Ms. Terris is
employed by the County as a "Program/Business Leader."
In August 2008, Ms. Terris, on behalf of herself and the Santa Barbara County Management
Association (SBCMA), contacted "lower level managers" via telephone and e-mail to discuss
forming an organization for the purpose of union representation. Subsequently, the County
suspended Ms. Terris for five days.
In 1975, the County adopted an Employer-Employee Relations Policy (EERP).2 EERP section
III, subsection J, defines management employee as "any employee being a Department Head or
Assistant Department Head, or having significant responsibilities for the formulation or
administration of County policies and programs, or who regularly renders management advice
to a Department Head or an Assistant Department Head, as designated by the Board of
Supervisors."
1 The MMBA is codified at Government Code section 3500 et seq. The text of
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 Nothing in PERB case law requires a Board agent to ignore facts provided by the
respondent and consider only the facts provided by the charging party. (Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M.)

LA-CE-490-M
April 10, 2009
Page 2
The County has classified the Program/Business Leader position as a "management
classification." The job description for the Program/Business Leader classification provides in
relevant part: 	"This management classification is responsible for a significant division within
a department or for managing a core business or service of the department." The job
description goes on to state: 	"PrograuJ/Business Leaders are senior-level managers in the civil
service system and report to executive management."
Discussion
Effective July 1, 2001, PERB acquired jurisdiction over most employers and employees under
the MMBA. However, unlike the Educational Employment Relations Act, the Higher
Education Employer-Employee Relations Act, and the Ralph C. Dills Act, most MMBA
representation issues are resolved purusant to local rules adopted by the public agency rather
than in accordance with PERB regulations. The MMBA specifically grants public agencies the
authority to adopt reasonable rules regarding employer-employee relations.
MMBA section 3507 states in pertinent part:
A public agency may adopt reasonable rules and regulations after
consultation in good faith with representatives of an employee
organization or organizations for the administration of employer
employee relations under this chapter.
MMBA section 3507.l(a) provides in relevant part:
Unit determinations and representation elections shall be
determined and processed in accordance with rules adopted by a
public agency in accordance with this chapter.
MMBA section 3507.5 provides:
In addition to those rules and regulations a public agency may
adopt pursuant to and in the same manner as in Section 3507, any
such agency may adopt reasonable rules and regulations
providing for designation of the management and confidential
employees of the public agency and restricting such employees
from representing any employee organization, which represents
other employees of the public agency, on matters within the
scope of representation. Except as specifically provided
otherwise in this chapter, this section does not otherwise limit the
right of employees to be members of and to hold office in an
employee organization.

LA-CE-490-M
April 10, 2009
Page 3
MMBA section 3509 describes PERB's powers and duties, including investigating alleged
violations
of
the MMBA. MMBA section 3509 states in relevant part:
(b) A complaint alleging any violation
of
this chapter or
of
any
rules and regulations adopted by a public agency pursuant to
Section 3507 or 3507.5 shall be processed as an unfair practice
charge by the board. The initial determination as to whether the
charge of unfair practice is justified and, if so, the appropriate
remedy necessary to effectuate the purposes of this chapter, shall
be a matter within the exclusive jurisdiction
of
the board. The
board shall apply and interpret unfair labor practices consistent
with existing judicial interpretations
of
this chapter.
(f) 	This section shall not apply to employees designated as
management employees under Section 3507.5. 3
(Emphasis added.) In Coachella Valley Mosquito & Vector Control Dist.
v.
California Public
Employment Relations Bd. (2005) 35 Cal.4th 1072, 1078 (Coachella Valley), the Court, citing
MMBA sections 3511 and 3509, stated: "Exempt from the PERB's jurisdiction under the
MMBA are peace officers, management employees, the City
of
Los Angeles, and the County of
Los Angeles." (Emphasis added.)
The Board has held that when a statute is clear and unambiguous, the intent of the Legislature
is
reflected in the plain meaning of the statute (Barstow Unified School District (1996) PERB
Decision No. 1138 (Barstow)) and it is unnecessary to look at legislative history.4 (North
Orange County Regional Occupational Program (1990) PERB Decision No. 857 (NOCROP);
California Teachers Assn.
v.
San Diego Community College Dist. (1981) 28 Cal.3d 692, 698.)
As stated by the Board in NOCROP:
In construing a statute, ,ve begin with the fundamental rule that a
court "should ascertain the intent of the Legislature so as to
effectuate the purpose of the law." (Mover
v.
Workmen's
Compensation Appeals Board (1973) 10 Cal.3d 222, 230.)
Further, it is a fundamental maxim of statutory construction that,
3 When first enacted, the provision now found in MMBA section 3509(f) was set forth
as section 3509(e). This provision was re-designated as section 3509(f) by the enactment of a
new Section 3509(e), unrelated to this matter, in the Statutes of 2008, Chapter 712 (Senate Bill
1296).
4 Nonetheless, a review of the legislative history regarding MMBA section 3509(f) did
not reveal the Legislature's intent when it included subsection (f).

LA-CE-490-M
April 10, 2009
Page4
where no ambiguity exists, the intent of the Legislature in enacting
a law is to be gleaned from the words of the statute itself,
according to the usual and ordinary import of the language
employed. Thus, where the language of a statute is clear and
unambiguous, case law holds that the construction intended by the
Legislature is obvious from the language used.
(Citations omitted.)
Here, the County adopted an EERP pursuant to its authority under MMBA sections 3507 and
3507.5. Pursuant to EERP section III, subsection J, the County classified Ms. Terris' position
as a "management classification." PERB lacks jurisdiction and authority to investigate unfair
practice charges filed by or concerning "employees designated as management employees
under Section 3507.5." (Emphasis added.) Consequently, Ms. Terris does not have standing
before PERB because she is currently employed in a County position designated as a
management classification. (Gov. Code, § 3509, subd. (f).)
Charging Party argues that PERB has jurisdiction to investigate the allegations contained in
this unfair practice charge because the County improperly designated Ms. Terris as a
management employee. 	However, MMBA section 3509(f) is clear; PERB lacks jurisdiction
and authority to investigate unfair practice charges filed by or concerning "employees
designated as management employees under Section 3507.5." (Emphasis added.)
Consequently, this letter does not analyze whether the County properly designated Ms. Terris
as a management employee.
Charging Party also argues that MMBA section 3509(f) "does not eiiminate PERB jurisdiction
over all employees designated as 'managers' by a public employer, but only the relatively
limited few among all managers who are further designated under [section] 3507.5 as
disqualified because of potential conflicts of interest from representing any employee
organization ... and arguably, any manager seeking to represent an employee organization
including non-managers." (Emphasis in original.) No legal authority is cited in support of this
interpretation of MMRA~ section 3509(f) and the proffered interpretation is unpersuasive.
As previously stated, where the language of a statute is clear, "the intent of the Legislature in
enacting a law is to be gleaned from the words of the statute itself, according to the usual and
ordinary import of the language employed." (NOCROP, supra, PERB Decision No. 857.) A
reading of MMBA sections 3509(f) and 3507.5 together clearly express the intent of the
Legislature to remove employees designated as management employees by public agencies
from PERB's jurisdiction. Here, pursuant to MMBA section 3507.5, the County designated
Ms. Terris' position as a management classification. Consequently, PERB lacks jurisdiction to
investigate Ms. Terris' allegation that the County violated the MMBA. (Gov. Code,§ 3509,
subd. (f).)
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies

LA-CE-490-M
April 10, 2009
Page 5
explained above, Ms. Terris may amend the charge. The amended charge should be prepared
on a standard PERB unfair practice charge form, clearly labeled Fourth Amended Charge,
contain all the facts and allegations Ms. Terris wishes to make, and be signed under penalty
of
perjury by
an
authorized agent of Ms. Terris. The amended charge must have the case number
written on the top right hand comer
of
the charge form. 	The amended charge must be served
on the Respondent's representative and the original proof of service must be filed with PERB.
If
an amended charge or withdrawal is not filed on or before April 19, 2009,5 PERB will
dismiss the charge. 	Questions concerning this matter should be directed to me at the telephone
number listed above.
Sincerely,
~~~
Sean McKee
Regional Attorney
SM
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)