Regents of the University of California (Non-Academic Senate Instructional/Research and Allied Professionals) (PERB 0270HA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
IN 	THE MATTER OF:
UNIT 	DETERMINATION 	FOR
PROFESSIONAL 	NON-ACADEMIC
SENATE 	INSTRUCTIONAL 	EMPLOYEES
{UNIT 18) 	OF THE
UNIVERSITY 	OF 	CALIFORNIA
PURSUANT 	TO CHAPTER 744 	OF
THE 	STATUTES 	OF 	1978 	(HIGHER
EDUCATION 	EMPLOYER-EMPLOYEE
RELATIONS 	ACT)
Case Nos. 	SF-PC-1001 et. al.
Requests 	for 	Reconsideration
PERB Decision No. 	270-H
PERB Decision No. 	270a-H
October 	24,1933
Appearances; 	Robert J. 	Bezemek, 	Attorney 	(Bennett 	& Bezemek)
for 	University Council, 	American Federation of Teachers;
Glenn Rothner, 	Attorney 	(Reich, 	Adell & Crost) 	for American
Federation of State, 	County and Municipal Employees, 	AFL/CIO;
Douglas H. 	Barton, 	Kent Jonas and Susan C. 	Paulsen, 	Attorneys
(Corbett, 	Kane, Berk & Barton) 	and James N. Odle, Associate
Counsel 	for 	the 	Regents 	of 	the 	University of 	California.
Before: Tovar, Jaeger, Morgenstern and Burt, Members*
DECISION
In PERB Decision No. 	270-H, 	issued on December 	28, 	1982,
the 	Public 	Employment 	Relations Board 	(PERB or 	Board) 	created
two 	separate 	bargaining 	units 	for 	non-academic 	senate
professional 	employees of 	the 	University of California 	(UC) .
These 	are 	the 	non-academic 	senate 	instructional 	unit
(instructional 	unit) 	and 	the 	research 	and 	allied 	professionals
unit 	(research 	unit). 	Thereafter 	the Board 	received 	requests
*Chairperson 	Gluck 	did 	not 	participate 	in 	this 	Decision.
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for 	reconsideration 	regarding 	these 	units 	from 	the 	University
of California; 	University Council, 	American Federation of
Teachers 	(AFT); 	and American Federation of 	State, 	County and
Municipal Employees. 	This 	decision 	concerns 	only 	that 	portion
of 	the 	parties' 	requests 	for 	reconsideration which 	relates 	to
the instructional unit.
PERB 	rule 	32410(a)1 pertains 	to 	reconsideration 	of 	Board
decisions 	and 	states:
Any 	party 	to 	a decision 	of 	the 	Board 	itself
may, 	because of extraordinary circumstances,
file 	a 	request 	to 	reconsider 	the 	decision
within 	20 	days 	following 	the 	date of 	service
of 	the decision. 	An original and 	5 copies
of 	the 	request 	for 	reconsideration shall 	be
filed 	with 	the 	Board 	itself 	in 	the
headquarters office 	and 	shall 	state 	with
specificity 	the 	grounds 	claimed 	and, 	where
applicable, 	shall 	specify 	the 	page of 	the
record 	relied 	on. 	Service 	and 	proof 	of
service 	of 	the 	request 	pursuant 	to Section
32140 	are 	required. 	The grounds 	for
requesting 	reconsideration 	are 	limited 	to
claims 	that 	the 	decision of 	the 	Board 	itself
contains prejudicial errors of 	fact, 	or
newly discovered 	evidence 	or 	law which 	was
not 	previously 	available 	and 	could 	not 	have
been 	discovered 	with 	the 	exercise 	of
reasonable 	diligence.
Portions 	of 	the 	requests 	have 	merely 	repeated 	arguments
previously 	raised 	and 	have 	failed 	to 	present 	any 	new 	legal 	or
factual 	issues. 	Other 	portions 	of 	the 	requests 	have 	brought 	to
the 	attention of 	the 	Board 	alleged 	errors 	or 	omissions 	from
1PERB 	rules 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 et seq.
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PERB Decision No. 	270-H which merit 	additional 	clarification.
Each 	request 	shall 	be 	addressed 	individually.
I. University 	of 	California; 	Request_£or 	Reconsideration
A. 	Division of Employees 	into 	Instructional 	and 	Research
Units
UC 	requests 	the 	Board 	to 	reconsider 	its 	decision 	to create
two 	separate 	units 	of 	non-academic 	senate 	professional
employees. 	UC argues 	that 	such 	a division not only 	ignores 	the
manner 	in which 	the 	university's 	mission of 	teaching, 	research,
and 	public 	service 	interconnect, 	but 	establishes 	an artificial
distinction 	between employees 	which 	is 	injurious 	to 	the
effective 	operation 	of 	the 	university.
UC's 	request 	for 	reconsideration on 	this 	issue 	is 	no more
than 	a 	restatement of 	arguments 	it made 	in previous 	briefs. 	In
PERB Decision No. 	270-H, 	the Board 	thoroughly explained 	its
rationale 	for 	finding 	an 	appropriate 	separate 	unit 	of
instructional 	employees 	based 	upon 	a 	finding 	that 	they 	have
separate 	and 	distinct 	communities 	of 	interest. 	There 	is 	no
reason 	to 	reiterate 	that 	reasoning 	here. 	Absent 	new 	issues of
fact or 	law, 	UC's 	request 	for 	reconsideration of 	this 	issue
lacks 	"extraordinary circumstances" 	within 	the meaning 	of 	PERB
rule 	32410(a) 	and 	is 	therefore 	denied.
B. 	clinical 	and Adjunct 	Faculty/Instructional 	Unit
UC 	requests 	the 	Board 	to 	reconsider 	its 	decision 	refusing
to place 	clinical 	and 	adjunct 	faculty 	in 	the 	instructional
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unit. 	UC argues 	that 	these 	employees 	play an 	integral 	role 	in
the 	university's 	teaching 	mission 	and 	share 	many 	key
characteristics 	with 	other 	academic 	employees 	in 	the 	unit.
UC's 	request 	is 	denied 	for 	failure 	to 	show 	extraordinary
circumstances 	since 	no 	new 	issues of 	fact 	or 	law 	are 	raised.
C. 	Exclusion 	of 	University 	Extension 	Teachers/
Instructional 	Unit
UC 	requests 	reconsideration 	of 	the 	Board's 	refusal 	to place
university extension 	teachers 	in 	the 	instructional 	unit. 	No
new 	issues 	of 	fact or 	law 	are 	raised. 	The 	request 	is denied
for 	failure 	to 	show extraordinary 	circumstances.
D. 	Request 	for 	Reconsideration of 	Unit 	Placement 	Errors
UC 	requests 	the 	Board 	to 	reconsider 	various 	alleged
technical 	errors 	regarding 	the 	placement 	and/or 	omission 	of
several 	title 	codes 	in 	the 	instructional 	unit. 	Among 	the
errors 	that 	UC cites are: 	(1) 	failure 	to place 	nursery school
teachers 	in the 	instructional unit; 	and 	(2) 	failure 	to place
employees 	who 	oversee 	the 	university's 	field 	work 	education
programs 	in 	the 	instructional 	unit.
Paragraph 	4 of 	the Order 	in PERB Decision No. 	270-H directs
the 	parties 	to present all 	technical 	errors 	to 	the director of
representation who 	shall 	take 	appropriate 	action 	thereon 	in
accordance 	with 	that 	decision. 	Consistent 	with 	that 	paragraph,
we 	refer 	the 	alleged 	technical 	errors 	to 	the 	director 	of
representation 	for 	correction.
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II. 	University Council, 	American Federation of Teachers;
Request 	for 	Reconsideration
A. 	Adjunct 	Lecturers/Instructional 	Unit
AFT requests 	that 	the 	Board 	correct 	any 	unit 	errors 	which
resulted 	from 	an 	alleged 	improper 	reclassification 	of 	certain
lecturers 	to adjunct 	lecturers 	by UC.
In PERB Decision No. 	270-H, 	the Board excluded 	all adjunct
lecturers, 	noting 	that 	the 	adjunct classifications 	are
generally 	designed 	for 	faculty 	who 	teach 	on occasion, 	but 	whose
primary position 	at 	the 	university 	is 	non-instructional. 	The
adjunct 	designation 	only 	indicates 	that 	they may 	be 	involved
for 	a 	time 	in classroom 	instruction. 	Consequently, 	their
occupational 	community of 	interest 	lies 	not 	with 	employees 	in
the 	instructional 	unit 	but 	with 	colleagues 	in 	their 	primary
position.
AFT claims 	that 	certain 	individuals 	in 	the 	adjunct
classifications 	have 	been 	improperly 	classified 	and 	in 	fact
belong 	in 	lecturer 	classifications 	included 	in 	the 	unit. 	The
AFT 	in 	its 	request 	for 	reconsideration 	states 	that, 	after 	the
unit 	determination 	process 	began, 	UC 	reclassified 	many 	lecturer
classifications 	to 	"adjunct" 	lecturer 	classifications.
This 	action 	became 	the 	subject 	of 	an 	unfair 	practice 	charge.
On December 	2, 	1982, 	the proposed decision was 	issued on 	that
charge. 	See 	Universit
------------------------y Council, 	American Federation of
Teachers 	(AFT), 	and AFT Local 	2199 v. 	Regent
--------------·---s of 	the 	University
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of California 	(Proposed Decision) 	(12/2/82) 	Case No. 	SF-CE-57-H,
The 	hearing 	officer 	found 	that 	the 	action 	violated 	AFT's 	rights
to meet 	and 	discuss 	the 	changes 	since 	the 	university 	failed 	to
show AFT had 	clear 	and 	unequivocal 	notice 	of 	the 	policy 	change
prior 	to 	its 	adoption. 	The proposed 	decision 	is 	now on 	appeal
to 	the 	Board 	itself.
AFT claims 	that 	the 	confusion 	rendered 	by 	the 	university's
reclassification scheme 	has 	led 	to 	errors 	in 	the 	unit
determination. 	Specifically, 	AFT states 	that 	the 	"adjunct"
classifications 	now consist of 	two 	types 	of 	employees. 	One
type, 	properly excluded 	by 	the Board 	from the 	unit, 	are 	those
adjunct 	lecturers 	who 	have 	another 	full-time 	university
position. 	The 	other 	type, 	whom AFT claims 	should 	be 	included
in 	the 	unit, 	are 	those 	former 	lecturers who do not have 	another
full-time 	university 	position 	and 	were 	allegedly 	improperly
reclassified 	as 	"adjunct."
AFT proposes 	that 	the 	Board 	remedy 	this 	problem by
including 	several 	adjunct 	classifications 	in 	the 	instructional
unit.2 However, 	this 	unit 	determination decision 	is 	not 	the
proper 	vehicle 	to 	remedy 	the 	alleged 	unfair 	practice. 	Before
the Board's 	final decision 	in 	the 	unfair 	practice charge, 	it 	is
2These 	classifications 	are: 	adjunct 	lecturer 	- 	9 months
(1630), 	adjunct lecturer - 9 months - l/9th 	(1632), 	adjunct
lecturer 	- 11 months 	(1634), 	senior 	adjunct lecturer 	- 9 months
(1640) , 	senior adjunct lecturer - 9 months - l/9th 	(1642), 	and
senior 	adjunct 	lecturer 	- 11 months 	(1644).
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premature 	to 	assume 	that 	certain 	adjunct 	lecturers 	have 	been
improperly 	reclassified. 	The 	Board 	in 	this 	reconsideration 	may
fashion 	appropriate 	units 	based 	only 	upon 	the 	record 	in 	the
instant 	case. 	Accordingly, 	AFT's 	request 	for 	reconsideration
is denied.
B. 	Exclusion 	of Acting 	Instructors/Instructional 	Unit
AFT, 	in 	its 	response 	to UC's 	request for 	reconsideration,
raises 	a previously 	unargued 	request 	that 	the 	Board 	include 	the
classifications of 	acting 	instructor 	(1401 	and 	1407) 	in 	the
instructional 	unit.
This 	request 	is 	rejected 	for 	two reasons. 	First, 	because
it 	is 	untimely. 	Second, 	because 	there 	is no showing 	that any
employee 	organization 	ever 	sought 	to 	represent 	these
employees. 	In sum, 	the decision as 	to whether 	acting
instructors 	should 	be placed 	in 	the 	instructional 	unit 	is
beyond 	the 	scope of 	this 	Decision.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public Employment 	Relations 	Board ORDERS 	that:
1. 	The 	University of 	California 	request 	for
reconsideration of 	the 	creation of 	two 	separate 	units 	of
non-academic 	senate 	professional 	employees 	is 	DENIED 	for
failure 	to 	show 	"extraordinary 	circumstances" 	within 	the
meaning of PERB rule 	32410(a).
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2. 	The 	University of 	California 	request 	for
reconsideration 	of 	the 	exclusion 	of 	clinical 	and 	adjunct
faculty 	from 	the 	instructional 	unit 	is 	DENIED 	for 	failure 	to
show 	extraordinary 	circumstances.
3. 	The 	University of 	California 	request 	for
reconsideration 	of 	the 	exclusion 	of 	university 	extension
teachers 	from 	the 	instructional 	unit 	is 	DENIED 	for 	failure 	to
show 	extraordinary 	circumstances.
4. 	The American Federation of 	Teachers 	request 	for
reconsideration 	of 	the 	unit 	placement 	of 	lecturers 	who 	have
allegedly 	been 	unlawfully 	reclassified 	to 	adjunct 	lecturers 	is
DENIED 	for 	failure 	to 	show 	extraordinary 	circumstances.
5. 	The American Federation of 	Teachers 	request 	for
reconsideration 	of 	the 	exclusion 	of 	acting 	instructors 	from 	the
instructional 	unit 	is DENIED because 	it 	is 	untimely 	and 	there
is 	no 	showing 	that 	any 	employee 	organization 	filed 	a petition
to 	represent 	acting 	instructors.
6. 	Any 	technical errors 	in 	the 	Order 	of PERB Decision No.
270-H shall 	be 	presented 	to 	the 	director 	of 	representation who
shall 	take 	appropriate 	action 	thereon 	in 	accordance 	with 	that
decision.
7. 	Any 	technical errors 	in 	this 	Order 	shall be presented
to 	the 	director 	of 	representation 	who 	shall 	take 	appropriate
action 	thereon 	in 	accordance 	with 	this 	Decision.
By 	the 	BOARD
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