Regents of the University of California (Association of Graduate Student Employees) (PERB 0730H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
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ASSOCIATION OF 	GRADUATE 	STUDENT
EMPLOYEES,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Respondent.
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) 	Case No. 	SF-CE-17 9-H
PERB 	Decision No. 	730-H
April 	26, 	1989
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Appearances: 	Suzanne P. 	Marria, 	Attorney, 	for Association of
Graduate Student Employees; 	Claudia Cate and Edward M. 	Opton,
Jr., 	Attorneys, 	for the Regents of the University of California.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by both
parties 	to 	the proposed decision of 	the 	administrative 	law 	judge
(ALJ). 	The case arose out of an unfair practice charge 	filed by
the Association of Graduate 	Student Employees 	(AGSE) 	against the
University of 	California 	at 	Berkeley 	(University or UCB) 	alleging
violations of section 3571, 	subdivisions 	(a) 	and 	(b) 	of the
Higher Education Employer-Employee Relations Act 	(HEERA or Act).1
1HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
All 	references 	are 	to 	the Government Code 	unless 	otherwise
specified. 	Subdivisions 	(a) 	and 	(b) 	of section 3571 	state:
It 	shall 	be unlawful 	for the higher education
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
(

AGSE 	alleges 	that 	it 	attempted 	to 	negotiate with the 	University
on behalf 	of various 	classifications 	of 	graduate 	students
employed by the 	University regarding wages, 	hours 	and other terms
and conditions of employment, 	and that it 	sought to have dues
deductions 	implemented. 	AGSE 	further alleges 	that 	the 	University
refused 	to 	recognize 	graduate 	students 	employed by 	the 	University
as 	employees 	for purposes 	of the Act, 	and refused to 	implement
dues 	deductions 	for graduate 	student 	employees. 	A complaint
issued 	incorporating the 	allegations 	in the 	amended unfair
practice 	charge.2 The University asserts 	that 	the persons
represented by AGSE 	are 	not 	employees 	within the 	meaning of
HEERA3 and, 	thus, 	the University has 	no obligation to deal with
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by 	this 	chapter.
2The 	University's 	exception that 	the ALJ 	erroneously 	stated
on page 	2 	of 	his 	decision that 	the 	complaint 	incorporated 	the
original unfair practice charge has merit. 	Rather, 	the complaint
incorporated 	the 	amended unfair practice 	charge 	filed 	on
March 27, 	1984.
3HEERA section 3562(f) 	states:
"Employee" 	or 	"higher education employee"
means 	any employee of 	the 	Regents 	of 	the
University of California, 	the Directors 	of
Hastings College of the Law, 	or the Board of
Trustees 	of 	the California 	State 	University,
whose 	employment 	is principally within the
State of California. 	. 	. 	. 	The board may find
student 	employees whose 	employment 	is
contingent on their 	status 	as 	students 	are
employees 	only 	if the 	services 	they provide
are 	unrelated to 	their 	educational
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AGSE 	as 	an employee 	organization.4
objectives, 	or, 	that those educational
objectives 	are 	subordinate to the 	services
they perform 	and 	that 	coverage 	under 	this
chapter would 	further the purposes 	of 	this
chapter.
4Originally, 	the University and AGSE 	entered 	into 	a
stipulation wherein AGSE 	agreed 	to 	litigate 	fifteen designated
classifications. 	(See Joint Exhibit No. 	1, 	para. 	11.) 	Of these
classifications, 	only seven are before us; 	and are divided into
two groups: 	(1) 	Teaching Assistant 	(Title Code 2310), 	Associate
in 	- Graduate Student 	(Title Codes 	1501, 	1506, 	and 1511),
Teaching Fellow 	(Title Code 2300); 	and 	(2) 	Research Assistant
(Title Code 	3299), 	Junior Specialist - Graduate Student 	(Title
Code 	3331), 	Post-Graduate Research - Graduate Student 	(Title
Codes 3241, 	3244, 	and 3246), Assistant Specialist 	(Title Code
3320).
The 	remaining 	eight 	classifications 	were 	resolved 	as
follows: 	(1) 	Four classifications were withdrawn without
prejudice by AGSE 	during 	the hearing 	[Language Assistant 	(Title
Code 2340), 	Research Associate 	(Title Code 3298), 	Research Fellow
(Title Code 	3296), 	and Physical Activities Assistant 	(Title Code
2330)]; 	(2) 	two classifications were deleted from Joint Exhibit
No. 	1 pursuant to an oral 	stipulation 	[Reader 	(Title Code 2850)
and Tutor 	(Title Code 2860)]; 	(3) 	one classification was 	conceded
to 	be 	employees 	by 	the 	University 	in 	its 	post-hearing brief
[Acting Instructor 	(Title Codes 	1401, 	1407, 	and 1417)]; 	and 	(4)
two 	classifications, 	found by the ALJ to be 	employees 	under
HEERA, 	were 	not 	excepted to by 	either the 	University or AGSE
[Nursery School Assistant 	(Title Code 	2286) 	and Community
Teaching Fellow 	(Title Code 2305)].
With regard to 	the 	exceptions 	to 	the ALJ's 	failure 	to
include Readers, 	Tutors 	and Acting 	Instructors 	in his 	Order and
Notice, 	we 	find that the ALJ was 	correct 	in not 	including the
Readers 	and Tutors 	in the Order and Notice. 	The parties
stipulated 	that 	these 	two 	classifications 	were 	to be 	deleted 	from
paragraph 	11 	of Joint Exhibit No. 	1, 	which specifically lists
those 	classifications AGSE 	intended 	to 	litigate 	at 	the unfair
practice hearing. 	We find that the parties, 	in effect, 	agreed
not 	to 	litigate 	these two 	classifications.
As 	to the Acting 	Instructor classification, 	the University,
in its post-hearing brief, 	states 	that 	it 	"hereby withdraws 	its
opposition to 	the 	designation of Acting 	Instructor 	(Title 	Codes
1401, 	1407, 	and 	1417) 	as employees within the provisions of
section 3562, 	subdivision 	(f)." 	Since the parties did not
stipulate to 	exclude this 	classification, 	and it was 	fully
w
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The ALJ 	found 	that 	graduate 	students 	appointed 	to 	the
classifications 	of teaching assistant, 	teaching associate,
teaching 	fellow, 	community teaching 	fellow, 	nursery 	school
assistant 	and those 	research assistants 	paid hourly, 	are
employees 	for purposes 	of 	HEERA. 	The ALJ 	further found that 	the
graduate 	student 	classifications 	of 	nonhourly 	research 	assistant,
research assistant 	specialist, 	junior 	specialist 	and postgraduate
researcher are 	not 	employees. 	He 	concluded 	that 	the 	University
did 	not 	violate 	HEERA in 	its 	implementation of work-study 	funding
for the 	disputed classifications, 	but had violated HEERA by 	its
refusal 	to deduct dues 	from those 	graduate 	students 	found 	to be
employees.
The Board, 	after review of the entire record, 	affirms 	in
part 	and reverses 	in part the ALJ's proposed decision, 	in
accordance with the discussion below.
SUMMARY OF THE 	FACTS
The University of California 	is 	a public, 	state-supported
institution. 	This 	case 	involves only the Berkeley campus, 	one of
eight 	campuses 	within the 	system offering undergraduate 	and
graduate 	instruction and professional 	education.
By 	statute, 	the University of California is designated as
the primary 	state-supported 	academic 	agency 	for 	research with
exclusive 	jurisdiction in public 	higher 	education over
instruction in the professions of law, 	medicine, 	dentistry, 	and
litigated, 	we 	conclude that the classification of Acting
Instructor 	should be 	included 	in the 	Order and Notice.
A
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veterinary medicine. 	Additionally, 	the University of California
has 	sole authority to award doctoral 	degrees 	in all 	fields,
either alone 	or 	jointly with 	the 	California 	State 	University.
The 	University of 	California 	is 	also 	required to provide
undergraduate 	education to 	the 	top 	one-eighth of 	the 	high 	school
graduates 	in the 	state.
Consistent with its mission, 	UCB offers 	lower division,
upper division, 	graduate, 	professional, 	and post-doctoral
programs. 	The Graduate Division at UCB has 	101 programs, 	93
offering Masters 	(MA) 	and Doctor of Philosophy 	(Ph.D.) 	degrees,
and 	8 	offering only the MA degree. 	Generally, 	the MA degree
follows 	completion of a 	specified number of 	advanced 	courses 	and
either a thesis 	or a comprehensive examination. 	The Ph.D. 	degree
is primarily a research degree. 	The Ph.D. 	program trains
graduate 	students 	in how to 	conceptualize research, 	develop 	a
research problem, 	carry out the research project, 	and present the
results 	of 	the extensive 	research 	in a dissertation.
Generally, 	a graduate 	student 	seeking a Ph.D. 	degree will
complete 	a 	number of 	course 	requirements which vary among the
departments. 	Some departments 	require completion of a 	series 	of
predetermined courses, 	others direct 	students to courses 	to
solidify knowledge 	in particular areas, 	and still others 	gear
course requirements 	to the 	students' 	own particular interests.
At 	the departmental 	level, 	there may or may not be 	a required
written or 	oral 	examination preliminary 	to 	the Graduate 	Council's
qualifying 	examination for the doctorate. 	Once 	the department
Un
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signifies that the 	student 	is 	ready, 	the 	student 	is 	scheduled to
take 	and pass 	a 	series 	of qualifying 	examinations. 	Within one
year of passing the qualifying examinations, 	the 	student must
file an application for candidacy for the Ph.D. 	degree, 	complete
a 	dissertation and defend 	the 	dissertation 	in an oral
examination.
Graduate 	students 	are 	admitted to departments 	after a
. .
screening process 	in the Graduate 	Division 	and 	an intense 	review
by the particular department. 	In some departments, 	the
availability 	of 	positions 	in the disputed 	classifications 	within
the 	department 	is 	a major 	factor 	in the 	number of 	students 	to be
admitted. 	Competition with other 	institutions 	for the most-
qualified 	students 	has 	resulted 	in 	some 	departments 	virtually
guaranteeing 	financial 	support 	to 	admitted 	students 	by
appointment to these 	classifications 	for the duration, 	or a
portion of the duration, 	of their 	stay in the graduate program.
In such departments, 	the decisions 	on the number of 	students 	is
made 	only after 	available 	resources 	for teaching 	and 	research
positions 	are 	identified. 	Students who have their own means 	of
support, 	whether through a private source, 	a fellowship, 	or a
scholarship, 	may also be admitted to the graduate program,
aligned with an advisor, 	permitted to 	select their areas 	of
interest 	and undertake research 	in the 	same manner as 	students 	in
the 	disputed 	classifications.
I. 	GRADUATE 	STUDENT EMPLOYMENT
The 	disputed 	classifications 	are 	easily divided 	into 	two
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groups. 	The classifications 	of teaching assistant, 	teaching
associate, 	and teaching 	fellow require the 	graduate 	student 	to
act 	in the role of an 	"instructor." 	The 	classifications 	of
research assistant, 	junior specialist, 	assistant 	specialist and
postgraduate 	researcher 	require 	the 	graduate 	student 	to 	act 	in
the 	capacity of a 	"researcher." 	While the 	functions 	of 	the
graduate 	student 	instructor 	(GSI) 	and graduate 	student 	researcher
(GSR) 	may be different, 	as graduate 	student employees, 	they share
several 	characteristics. 	This decision will address 	the 	common
traits 	first, 	and then examine in more detail, 	the findings 	that
are 	specific 	to 	the researcher and 	instructor groups.
As 	a basic 	rule, 	graduate student employees 	are to be
employed, 	at a maximum, 	half-time. 	Some positions, 	however, 	are
quarter-time 	and the 	actual 	number of 	hours worked varies,
depending on a 	number of 	factors 	including 	the 	department 	and 	the
classification. 	The 	evidence reflects various 	reasons 	for the
half-time 	limitation. 	The University's witnesses 	testified that
the 	limitation 	is 	grounded in a policy that 	a graduate 	student 	is
a 	student 	first and foremost, 	and that employment 	in excess 	of
half-time would detract 	from 	the 	student's 	academic 	pursuits.
The 	record also 	reflects 	the 	fact 	that 	the 	University receives
state 	funding on the 	basis 	of 	full-time 	enrollment 	and 	that
students 	employed 	at 	the 	University more 	than half-time 	cannot be
counted as 	full-time 	students.
Once admitted to a 	graduate degree program, 	the 	student must
be 	continuously 	enrolled 	(registered) 	each 	semester until 	all
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requirements 	are 	completed. 	To meet 	"academic 	residence," 	a
graduate 	student must 	enroll 	for at 	least 	four units 	of 	upper
division undergraduate 	or graduate degree 	course work. 	While
some 	variation exists 	between departments 	and 	classifications,
graduate 	students working as 	GSIs 	and GSRs 	generally must
maintain full-time residency, 	eight units 	or more. 	Students 	not
currently registered while appointed, 	such as 	those 	appointed 	in
the 	summer term, 	are required to have been registered during 	the
terms 	preceding 	and 	following 	their 	appointment.
Students 	receive unit credit towards 	the residency
requirement 	not only 	for course work, 	but also 	for their work as
graduate student employees. 	Thus, 	for example, 	teaching
assistants 	(but 	not 	teaching 	associates 	or 	teaching 	fellows)
receive 	unit 	credit 	for teaching or 	for 	taking 	a pedagogy 	course
in conjunction with a teaching assistantship. 	Students working
as 	researchers 	receive unit 	credits 	towards 	residency 	for their
dissertation research work, 	whether or not 	they are 	employed 	in
the disputed classifications. 	In 	some cases, 	the unit credit
received 	may 	concurrently 	fulfill 	academic 	degree 	requirements.
In other cases, 	unit credit may be awarded 	solely to allow the
students 	to meet 	the residency requirement 	and does 	not 	count
toward fulfilling academic degree 	requirements. 	Generally, 	a
student 	receiving unit 	credit 	for 	graduate 	student 	employment
also 	receives 	a 	grade of 	satisfactory or unsatisfactory.
The 	evidence 	in the record reflects 	that 	graduate 	students
are 	treated 	as 	students 	in 	some 	respects 	and as 	employees 	in
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others. 	Graduate 	students 	employed in the disputed
classifications 	follow registration procedures 	and pay
registration fees, 	educational fees, 	UCB fees and, 	if
appropriate, 	nonresident tuition fees, 	on the 	same terms 	as other
students. 	They complete 	student 	forms 	such as 	class
matriculation forms, 	schedule request and change forms, 	and
petitions 	to change 	grade 	option.
On the other hand, 	graduate 	student employees 	are also
required 	to 	complete 	the 	same 	employment 	forms 	used by UCB 	for
other employees, 	including, 	inter alia, 	a personnel action form,
personal data form, 	State Oath of Allegiance, 	patent agreement,
Employee 	Federal-State Withholding Allowance Certificate,
academic 	biography personnel 	form, 	and ethnic 	identity 	form.
They 	receive 	an 	employee 	identification 	number 	and 	identification
card.
The 	employee 	benefits 	received by graduate 	student 	employees
are 	fairly 	limited 	in nature. 	The 	graduate 	students 	do 	not
participate 	in health benefits 	available 	to 	full-time 	UCB
employees, 	but rather are 	eligible 	for the out-patient 	treatment
available to all 	students. 	They do not 	receive 	UCB retirement
benefits, 	dental insurance, 	short-term disability insurance, 	or
paid 	life 	insurance. 	Social 	security payments 	are 	not deducted
from their paychecks. 	Graduate 	students 	do not get paid
vacation, 	nor do they formally accumulate 	sick leave, 	although
some 	evidence 	suggests 	that their pay 	is 	not docked 	for absences.
The 	students 	are 	exempt 	from unemployment 	insurance 	coverage 	but
9
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are, 	at least in some instances, 	covered by worker's
compensation.
Graduate 	students 	are 	not 	subject 	to 	the 	University's 	layoff
policy because, 	according to an Office of the President
memorandum:
Such 	student 	appointees 	are 	employed 	for
specific 	periods 	and 	failure 	to 	reappoint 	is
to be 	considered a 	termination rather than a
layoff. 	Separate considerations,
particularly relating 	to 	the 	quality 	of 	the
student's 	academic 	work and his 	progress
toward his 	degree 	objectives 	take precedence
over the 	considerations 	of 	layoff policy.
(UC Exhibit No. 	14.)
According 	to 	the 	University's 	Academic 	Personnel 	Policies
and Procedures Manual 	(APM), 	the grievance procedures 	applicable
to 	UCB 	employees5 generally are 	applicable 	to graduate 	student
employees 	only 	insofar as 	grievances 	that 	affect 	their 	status 	as
employees, 	as opposed to their status as 	students. 	Thus, 	for
example, 	terminations 	resulting 	from 	scholastic 	deficiencies 	are
not, 	according to the APM, 	subject to the grievance procedures.
A 	termination based 	solely 	on poor 	job performance would 	be
subject 	to the grievance procedures. 	Yet 	evidence adduced at the
hearing 	indicated that, 	in practice, 	graduate 	students do not use
these grievance procedures: 	graduate 	student grievances,
including those relating to GSI 	and GSR appointments, 	are dealt
with 	through a 	committee of 	the Graduate Council 	or through the
5The APM 	sets 	forth 	a 	three-step procedure 	overseen by 	the
chancellor, 	for resolution of grievances 	filed by academic
appointees who are 	not members 	of the Academic 	Senate 	(regular
faculty members).
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Dean of 	the Graduate 	Division and 	not by the administration.
Most 	graduate 	student 	employees 	are paid 	a 	set monthly 	rate
based upon the 	classification they hold 	and the 	number of 	months
they work annually. 	The 	University attempts 	to 	equalize 	the
amounts 	of pay 	accorded GSIs 	and GSRs 	to 	avoid one 	classification
being preferable 	over another.
In classifications with 	salary steps, 	such as 	junior
specialist, 	assistant specialist, 	and postgraduate researcher,
the 	graduate 	student 	appointees 	are appointed to 	the 	first 	steps
only, 	with the higher 	step positions 	being awarded to
nonstudents. 	UCB does 	not move 	graduate 	students 	through the
steps 	based upon length 	of 	time within the 	classification.
Graduate 	student 	salaries 	are 	based upon 	information
provided 	by 	a 	network of 	universities 	and 	research 	laboratories
and 	on results 	of 	consultations 	with 	the 	Coordinating Committee
on Graduate Affairs 	and 	the Graduate 	Division. 	The amount 	of
salary is 	also based on an assessment 	of the entire 	financial
requirements of graduate students, 	such as tuition, 	fees, 	and
stipends 	associated with 	research 	and 	teaching positions. 	Salary
increases 	for graduate 	student 	employees 	have been based on
increases 	in tuition and 	fees 	assessed by the 	University, 	and
have, 	at times, 	exceeded raises given to other UCB employees.
All 	graduate 	student 	employees 	are paid monthly 	from the
University's payroll 	office. 	With the 	exception of 	the hourly
employees, 	graduate 	students 	are paid the 	full 	amount 	each month
even though 	classrooms 	or 	laboratories 	may not be 	open because 	of
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vacations 	or holidays. 	Federal 	and 	state taxes 	are withheld 	from
pay warrants.6
The 	record 	supports 	the 	University's 	view that 	appointments
to 	the disputed 	classifications 	are 	in the nature 	of 	"stipends"
for the 	support of 	students 	during their graduate 	studies. 	Some
departments, 	notably the sciences, 	provide a commitment of
support 	through 	the use 	of 	teaching 	assistantships 	or research
assistantships, 	or a combination thereof, 	to students admitted.
Yet only, about 	30 percent of the departments take 	financial need
into 	consideration 	in making the 	appointments. 	Unlike
fellowships, 	or other forms 	of 	financial 	aid available to
graduate 	students, 	appointments 	to 	these disputed classifications
are 	made 	primarily 	on merit 	and 	continued 	adequate progress
towards 	a degree.
II. 	GRADUATE STUDENT INSTRUCTORS
A. 	GSI 	CLASSIFICATIONS
At 	issue herein are 	the GSI 	classifications 	of 	teaching
assistant, 	teaching associate, 	and teaching fellow. 	While the
use 	of 	different data bases 	by the 	University 	and AGSE produced
different results 	as 	to the number of GSIs 	in the various
classifications 	at 	issue, 	an averaging of the 	figures 	reveals
6 The record 	is 	unclear as 	to whether the graduate 	students
in 	th'e 	disputed 	classifications 	actually 	received 	tax 	exemptions
under the provision in the 	Internal 	Revenue Code 	(Section 	117)
that provides 	for 	exemptions 	for 	scholarships 	and 	fellowships.
Post-hearing 	198 6 	amendments 	to Section 	117 	specifically provide
that 	such income 	is not excludable. 	In any event, 	we do not 	find
the 	tax 	issue dispositive.
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that 	approximately 	1100 	GSIs were 	teaching assistants 	in 	1984,
570 were teaching associates, 	and 2 were teaching fellows.
1. 	Teaching Assistants 	(TAs)
TAs 	are 	used primarily 	in 	freshman 	and 	sophomore 	classes
with 	large 	enrollments. 	TAs 	attend the 	lecture 	sessions 	given by
a member of the 	faculty, 	up to four or five hours per week. 	They
meet up to three time a week with 	15 	to 	60 	students 	for an hour
discussion session. 	During the discussion sessions, 	the TA is
often called upon to 	answer 	students' 	questions 	regarding the
material 	presented during 	the 	course 	lectures 	and to 	expand 	on
materials 	referred to 	in the 	lectures. 	The TA may be 	responsible
for assigning, 	reading and grading 	student 	assignments.
Typically, 	the TA has 	office hours 	at 	set times during the week
for 	students 	to obtain additional help with course materials. 	In
courses with 	laboratory 	sessions, 	TAs will 	lead undergraduates
through 	the 	assigned 	experiments 	and the writing of 	reports. 	The
TA will 	also be 	involved to varying degrees 	in preparing, 	reading
and grading examinations, 	including mid-terms 	and finals.
Appointees 	to 	the TA positions 	are 	required to be 	registered
graduate 	students 	in 	full-time 	residence 	and 	serve 	under 	the
active 	tutelage 	and 	supervision of 	a 	faculty member. 	The 	faculty
member 	in charge of 	the 	course 	selects 	the 	textbook or materials
used 	in the course. 	In some courses, 	the 	supervising faculty
member will 	share 	in 	conducting the discussion 	sessions 	or
monitoring the progress 	of 	the 	laboratory operations, 	and will
participate 	in the 	reading 	and grading of 	examinations.
13

The 	working 	relationship 	between the 	faculty 	member 	teaching
the 	course 	and 	the 	TA varies 	from 	one where weekly meetings 	occur
to review the substantive materials, 	schedules of exams, 	etc., 	to
one where virtually no meetings 	occur, 	save 	for an initial
orientation meeting of 	the 	instructor and all the TAs. 	Both the
faculty and the TAs, 	in almost all cases, 	are evaluated by the
students 	at the end of the course. 	In some departments, 	faculty
members 	evaluate the TA as well. 	The evaluations, 	in some cases,
are 	kept 	in the graduate 	student's 	academic 	file.
Teaching assistant 	appointments 	are made by a 	committee 	of
faculty members, 	by preference 	of 	an 	individual 	faculty member
who wishes 	a particular TA to 	assist him or her 	in teaching 	a
course, 	by an administrative aide within the department, 	or by a
head TA, 	another graduate 	student who 	is 	given administrative
responsibility 	for 	assigning 	TAs 	and 	insuring 	class 	schedules 	and
assignments are met.
Graduate 	students 	are 	often given a preference 	for 	classes
they wish to teach as a TA. 	Some departments 	secure 	lists 	of
preferences 	from 	students 	who 	rank 	courses 	they would 	accept 	for
assignment: 	the departments 	then attempt to align the 	students'
preferences with the departments' 	needs 	for staffing.
TAs 	may be 	appointed 	either quarter-time 	or half-time.
Those 	students 	appointed 	quarter-time work only 	ten hours 	per
week and 	receive 	one-half 	the 	compensation of 	the 	students
employed half-time. 	Appointments 	generally may not 	exceed half-
time. 	Exceptions 	to the half-time rule must be 	requested through
14

the 	student's 	graduate 	advisor, 	endorsed by the department head
and, 	if applicable, 	the dean of the 	school or college, 	and then
be 	submitted to the Graduate 	Division for approval. 	Typically,
the work hours 	for a half-time 	TA are 	fifteen to 	twenty hours 	per
week. 	Certain periods 	during the term may require more hours,
i.e., 	when the TAs 	are grading or reading examinations.
Unlike 	funding 	for 	the 	other 	teaching 	classifications 	in
dispute, 	the 	University receives 	funds 	directly 	from the 	state
for 	salaries 	of 	TAs 	based upon a ratio 	of 	TAs 	to undergraduate
enrollment. 	In recent years, 	the University has been attempting
to 	lower that ratio 	and has 	made budget proposals 	to 	increase
funding 	for 	additional 	TA positions.
2. 	Teaching Associates
The 	teaching associates 	are 	appointed 	temporarily, 	are 	not
under consideration 	for appointment 	in the professor 	series, 	and
provide, 	on a no more than half-time basis, 	independent
instruction 	in 	lower division courses. 	Minimum qualifications
are possession of 	a MA degree or equivalent training, 	and at
least one year of 	teaching experience. 	In 	some circumstances,
the Graduate 	Division waives 	the minimum qualifications. 	For
example, 	if there is 	insufficient funding for TA positions, 	then
the 	same 	graduate 	students 	can be 	appointed as 	teaching
associates.
The 	teaching 	associate 	classification 	is 	supposed 	to 	be 	used
for graduate 	students who 	are 	responsible 	for the 	entire
instruction of a 	lower division course, 	including 	lecturing,
15

holding office hours, 	leading discussion 	sections, 	and reading
and grading papers 	and 	exams. 	A teaching associate 	is 	not
assigned 	to 	teach 	an upper division or graduate 	course 	or 	course
section except with the 	approval 	of 	the Campus 	Committee 	on
Courses 	of 	Instruction.
In practice, 	use of the associate title varies. 	In some
departments, 	the appointment 	is 	a 	simple alternative to a TA
position, 	where a 	lack of 	sufficient TA positions 	exists. 	In
such cases, 	the duties 	of the teaching associate are 	exactly the
same as 	a TA's duties. 	Generally, 	graduate 	students have 	served
in TA positions 	before becoming 	teaching associates, 	although the
same 	students 	may at 	a 	later time be again assigned a 	TA
position.
Teaching associates 	earn a 	few dollars 	more per month 	than
is 	earned by the TAs. 	The departments 	receive no 	state 	funding
for 	these positions 	but 	must 	fund 	them 	from temporary academic
savings 	resulting 	from allocated 	salary positions 	that 	are
unfilled 	or 	for which the 	faculty member 	is 	on 	leave.
3. 	Teaching Fellows
The 	teaching 	fellow classification 	is 	for a 	registered
graduate 	student 	in 	full-time 	residence who 	has 	advanced 	to
candidacy for the doctorate degree, 	or otherwise has 	achieved
appropriate professional maturity, 	and who has 	been chosen,
because of competence, 	to 	conduct the 	entire instruction of 	a
group 	of 	students 	in a 	lower division course under the 	general
supervision of a regular faculty member. 	Appointment, 	as with
16

the other GSI 	classifications, 	is 	limited to half-time.
The term of 	appointment to a teaching assistant, 	teaching
associate, 	and teaching 	fellow position is 	for one year or 	less
and is 	self-terminating, 	unless 	the appointee 	is 	otherwise
notified. 	The University takes 	several 	factors 	into account when
it 	evaluates 	a graduate 	student's 	request 	to be reappointed 	to 	a
particular position, 	including whether: 	the GSI 	has provided
quality 	education to the undergraduates; 	the department 	needs 	the
position to 	recruit new 	students 	into 	the department's 	program;
the 	incumbent has alternative 	sources 	of 	support; 	the GSI will
receive 	a 	greater educational 	benefit by 	assisting 	in the 	same
course again, 	by assisting in a different course, 	or by
concentrating on other parts 	of his 	or her educational
experience; 	and the GSI 	is making appropriate progress 	towards 	a
graduate degree 	and 	is 	in good academic 	standing. 	The 	total
length of 	appointment 	may not 	exceed 	four years 	(including 	in the
aggregate, 	employment as reader on annual 	stipend, 	TA, 	teaching
fellow, 	and/or associate). 	As with the half-time rule, 	an
exception to 	the 	length of 	appointment rule may be 	requested
through 	the 	student's 	advisor, 	endorsed by the department head
and the dean of 	the 	school 	or college, 	and 	submitted 	for approval
by the Graduate Division. 	Even with 	such 	exceptions, 	appointment
cannot 	exceed a total 	of 	six years.
No more 	than a handful 	of 	GSIs 	are hired 	into 	faculty
positions 	at 	UCB 	after their degree work has 	been 	completed.
Thus, 	once they have reached the maximum number of years 	of
17

appointment, 	the great majority have no 	expectation of 	continued
employment.
B. 	SERVICES 	PROVIDED BY GSIs
The record reflects that, 	under the 	current arrangement, 	the
University 	relies 	heavily 	on GSIs 	in providing 	undergraduate
education at the UCB. 	The predominate work of GSIs 	is 	in the
"service" 	courses, 	which are courses 	offered by a department 	for
undergraduate 	students 	not 	enrolled 	in that department. 	The 	GSIs
are 	responsible 	for 	58 percent of 	the 	lower division class
meetings.
The 	number of 	TAs 	each department obtains 	is 	set by the
administration. 	The use of TAs within each department varies.
Departments 	with high undergraduate 	enrollments 	use 	over half
their graduate 	students 	as 	TAs 	in any particular 	semester. 	Some
departments 	have more 	students 	interested than there 	are 	TA
positions 	available. 	Some departments 	lack a 	sufficient number
of 	students 	to meet 	their needs 	and may 	appoint 	graduate 	students
from other departments 	to TA positions.
The 	Graduate 	Division does 	not require 	training 	for GSIs 	in
any department, 	yet 	some departments 	offer courses 	or 	seminars 	in
teaching methodology. 	The 	students 	receive unit 	credit 	for these
methodology 	courses, 	which usually 	last one 	semester, 	and are
often 	given 	simultaneously with 	the 	first 	teaching 	assignment.
Although the 	University's pervasive 	use of GSIs 	is
extensively documented in the 	record, 	the record 	also 	supports 	a
finding 	that 	the 	University 	could 	operate 	its 	undergraduate
18

program without 	them. 	Instead of 	specifically 	limiting GSI
positions 	to registered 	students, 	the record indicates 	the
University 	could 	replace 	GSIs 	with 	nonstudent 	instructors 	at 	a
lesser cost. 	Many 	institutions 	of 	higher 	learning run 	full
undergraduate programs without the use of GSIs.
C. 	RELATIONSHIP OF 	SERVICES 	TO EDUCATIONAL OBJECTIVES
Teaching as 	a 	formal requirement 	for the Ph.D. 	is 	set at the
departmental 	level. 	Sixteen departments 	require 	teaching 	for the
graduate degree. 	The record reveals 	several 	reasons why the
other departments 	have 	limited or no 	teaching requirements. 	Some
departments 	cannot provide 	all 	their graduate 	students 	teaching
opportunities 	because 	they have 	only 	a 	small 	undergraduate
program, 	no undergraduate program, 	or insufficient 	funds 	to
provide 	teaching opportunities 	for all 	graduate 	students. 	Some
graduate 	students 	have 	such 	limited 	fluency 	in the 	English
language 	that 	they cannot 	teach 	in English. 	Some departments
have 	such a 	tradition or policy of having graduate 	students 	teach
that 	they have 	felt 	no need to 	impose 	a 	teaching requirement.
Although 	teaching 	is 	required 	in only 	sixteen departments, 	nearly
three-fourths 	of 	all graduate 	students 	serve as GSIs 	some time
during 	their 	academic 	careers.
The 	reasons 	a 	student might apply for a GSI position, 	even
though teaching is 	not a degree requirement 	for that 	student, 	are
varied. 	Obviously, 	teaching experience 	is particularly valuable
to 	those 	students 	seeking a 	teaching career. 	While 	the 	record
evidences 	no 	exact 	figures 	as 	to the number of 	graduate 	students
19

pursuing careers 	in academia, 	the evidence does 	support a
conclusion that 	teaching 	figures 	prominently 	in the 	career
aspirations 	of 	a high proportion of graduate 	students. 	Job
listings 	for teaching appointments 	at 	colleges 	and 	universities
generally 	list teaching experience as 	a preference, 	if not a
requirement. 	Letters 	of 	recommendation virtually always 	discuss
teaching ability, 	either as the second topic, 	after research, 	or
sometimes 	as 	the primary topic, 	when the 	letter 	is 	addressed to 	a
non-research 	institution.
While many of 	the AGSE witnesses 	testified that 	their
teaching work was 	of 	little value 	to 	them or had no 	relation to
their dissertation or 	field of 	study, 	University witnesses
stressed 	the 	educational 	value 	of 	teaching 	for 	all 	graduate
students, 	whether or not they planned to pursue careers 	in
academia. 	Many of 	the professors who 	testified extolled 	the
benefits 	of the GSI 	experience 	in terms 	of 	its 	being a valuable
tool 	of preparation for initially, 	the oral 	qualifying
examinations and, 	later, 	the oral defense of the dissertation.
By teaching a course, 	the GSIs 	not only come away with a 	firmer
understanding of the basic 	course materials, 	but also with an
increased ability to think on their 	feet, 	organize their
thoughts, 	and communicate clearly and effectively, 	all 	skills
befitting a 	scholar no matter what 	career path 	is 	taken. 	These
skills 	are 	learned and then honed by: 	(1) 	attending 	lectures 	by
the 	faculty members 	that 	enable the 	GSI 	to answer 	students'
questions 	or to 	lead a discussion session; 	(2) 	the 	fielding of
20

questions 	in sessions or labs; 	and 	(3) 	the reading and grading of
student 	assignments 	and 	examinations.
The 	graduate 	students 	called by AGSE 	testified 	extensively
about 	conflicts 	that 	arose 	between the 	teaching duties 	and 	their
own graduate work. 	The hours 	of 	class 	or 	sessions with 	students,
laboratory duties, 	reading and grading papers, 	especially during
examination time, 	resulted 	in less 	time devoted to their own
course 	of 	study or research. 	They testified that while 	they
might have been encouraged to 	teach 	for two or three terms, 	they
were 	often discouraged by 	their 	faculty 	advisors 	who 	feared 	the
teaching would delay progress 	on their dissertations. 	The
evidence also 	shows, 	however, 	that the departments assess the
students 	own degree progress 	in making 	assignments 	and 	renew
appointments 	only 	if 	the 	graduate 	student 	is 	in good academic
standing 	and making 	satisfactory progress 	towards 	the degree.
III. 	GRADUATE 	STUDENT 	RESEARCHERS
A. 	GSR CLASSIFICATIONS
The 	second group of 	classifications 	in dispute 	are 	those of
research assistant, 	junior specialist, 	assistant 	specialist and
postgraduate researcher 	(GSRs). 	While the use of different data
bases 	by 	the 	University and AGSE produced different 	results 	as 	to
the number of GSRs 	in the various 	classifications 	at 	issue, 	an
averaging of 	the 	figures 	reveals 	that 	approximately 	1300 	GSRs
were research assistants 	in 	1984, 	64 were 	junior specialists, 	515
were assistant 	specialists, 	and 280 were postgraduate
researchers.
21

1. 	Research Assistants
A 	"research assistant" 	is 	defined 	in the Academic 	Personnel
Policies 	and Procedures 	Manual 	(APM) 	as 	a graduate 	student 	in the
University:
. 	. 	. 	with high scholarship standing who
serves 	with or without 	salary but whose
appointment must be part-time. 	The appointee
does 	research under the direction of 	a
faculty member 	and 	may 	or 	may 	not 	collaborate
in the publication of 	research 	as 	determined
by 	the 	faculty member directing the work.
2. 	Specialist Series
Assistant 	specialists 	and 	junior 	specialists 	are 	academic
appointees 	who 	are 	engaged 	in 	research 	in 	specialized 	areas 	and
who do 	not have 	teaching responsibilities. 	Criteria 	for
appointment 	are performance 	of 	research 	in 	specialized 	areas,
professional 	competence 	and 	activity, 	and University 	and public
service.
3. 	Postgraduate Researcher
Although 	the postgraduate 	researcher 	title 	is 	used 	for
students 	and nonstudents, 	the 	three title 	codes 	in dispute are
limited to registered graduate 	students, 	whose appointments 	are
limited to half-time. 	Appointments 	to these positions 	engage 	in
research.
B. 	RELATIONSHIP OF 	SERVICES 	PROVIDED BY GSRs 	TO EDUCATIONAL
OBJECTIVES
The 	University 	of 	California 	is 	the 	"primary 	State-supported
academic agency for research." 	It is also, 	however, 	a research-
educational 	institution: 	it exists 	also 	for the purpose of
22

producing researchers. 	The Ph.D. 	is 	essentially a research
degree, 	granted upon fulfilling the department's 	requirement 	that
the 	student demonstrates 	ability to 	conduct research. 	The degree
is 	awarded upon the 	student's 	completion, 	submission and approval
of 	a dissertation 	setting 	forth the 	student's 	identification of 	a
problem, 	methods 	of 	examination, 	and the conclusions drawn from
the research.
Research 	is 	funded by the 	University 	itself 	or by 	a 	grant
obtained 	by 	a 	faculty member's 	direct 	application to 	outside
agencies 	for extramural 	support. 	Extramural grants 	contain
conditions 	that must be adhered to by the 	faculty member.
Progress 	reports 	to 	the 	grantor are 	required periodically. 	The
evidence 	indicates 	the 	granting agencies 	are aware 	that 	a direct
by-product 	of 	these 	grants 	is 	the 	training of 	graduate 	students
to do research.
The 	University 	oversees 	the appropriateness 	of 	the 	research-
grant 	activity of 	the 	faculty. 	The 	University's 	regulations
provide 	that the 	University's 	participation is 	limited 	to
activities 	that 	lead to 	extension of 	knowledge or 	increase 	the
effectiveness 	of 	teaching.
Research done by the 	graduate 	student 	contributes 	to 	the
grant purposes 	and will 	often 	lead 	to 	interim publication that
the 	graduate 	student 	coauthors 	with 	the 	faculty member 	securing
the 	grant. 	The 	same 	research will 	often 	lead to discovery of 	and
constitute the 	core 	of 	the 	student's 	dissertation.
The 	record reveals 	a wide variety of practices 	in the
23

utilization of GSRs in the various departments; 	therefore, 	our
findings 	are 	limited to general 	observations. 	Generally,
research 	employment opportunities 	are 	apportioned as 	a means 	of
financial 	support to attract graduate 	students 	to UCB. 	A 	few
departments 	combine 	teaching 	and 	research 	employment
opportunities with a 	commitment of 	financial 	support. 	Such
departments 	admit 	students with a guarantee 	of 	support 	for a
period 	of 	time 	commensurate with 	the 	normative 	time 	identified by
the 	department. 	Other departments 	provide 	assurances 	that 	they
will do 	everything possible to provide 	support to the 	students,
either 	in the 	form of 	teaching assistantships 	or 	research
assistantships, 	but make no guarantee that 	such support will be
provided 	for the duration of the 	students' 	efforts 	towards 	their
degrees. 	Some departments 	make assurances 	of 	support to a
portion of the 	students who are admitted. 	For instance, 	the top
candidates, 	varying in number depending on the 	size of 	the
department, 	are given assurances 	of 	support 	for the duration of
their candidacy, 	while others 	are admitted with no 	such
assurances.
The 	amount 	of 	support varies 	among departments 	but 	are 	the
same within each department. 	Typically, 	departments use a mix of
grant 	funds, 	research assistantship 	funds, 	teaching assistantship
7Normative time 	is 	that number of years 	a department
establishes 	as 	the 	time within which a 	student 	should be 	able 	to
complete 	the degree 	requirement. 	It differs 	from department 	to
department. 	It insures that students will get their degrees
without 	undue 	delay and will 	enable 	the department 	to 	take 	in new
students.
24
7

funds 	and departmental discretionary 	funds 	to 	bring 	each
supported 	student 	to 	the departmental 	level 	of 	support.
Generally, 	in the 	science and engineering departments,8
admission of 	students 	is 	based on the department's 	ability to
guarantee 	financial 	support 	for the 	students, 	and a determination
that 	the department's 	ongoing research will be of benefit 	to 	the
students. 	Upon admission, 	there is a 	systematic process of
aligning 	each 	student with 	a particular 	faculty member 	to
establish a 	one-on-one relationship. 	The alignment process
varies, 	but the concept is that, 	through contact with the
professors 	in the department, 	the 	student will 	select an area of
interest 	for his 	or her individual pursuit of 	research. 	The
student's preferences, 	along with the 	faculty member's
objectives, 	will bring the 	student 	and faculty member together to
work 	in 	a 	joint 	effort to 	accomplish both the 	faculty member's
research 	interest 	and 	the 	student's 	research project 	leading 	to
the dissertation.
The 	research undertaken by 	the 	student 	may be 	aligned with
an ongoing research project or the pursuit 	of 	a new undertaking
within the general 	area of 	the 	faculty member's 	research project.
In any event, 	the work of the 	graduate 	student may ultimately
constitute 	the 	essence of his 	or her own research 	leading to 	the
dissertation upon which the degree 	is 	granted. 	The hours worked
by 	the 	student bear no relationship 	to the percentage 	of 	the
88Approximately 	two-thirds 	of 	the GSR positions 	are 	in the
science 	and 	engineering departments.
25

appointment, 	and are 	left up to the 	student's 	own determination
to 	accomplish the research. 	The 	student receives 	unit 	credit 	for
the 	research work, 	which may 	satisfy the 	entire departmental
residency 	requirement.
The disputed 	classifications 	also 	include 	students 	engaged
in work 	that 	may 	or may 	not 	lead to 	their 	own dissertation work.
Testimony 	suggested that, 	at the beginning of 	graduate 	school,
students 	do 	not 	necessarily 	know what 	specific 	subject will
evolve 	into a dissertation subject. 	Rather, 	through the process
of 	study 	and discussion with 	faculty 	and with 	a 	research 	advisor,
topics 	of 	interest begin to emerge. 	Even then, 	a topic may alter
or 	change 	direction once 	undertaken.
A 	few research 	assistantships 	are 	also 	used 	for 	appointments
in nonscience departments where the duties 	are unrelated 	to 	the
graduate 	student's 	own research work. 	These appointments 	are on
an hourly basis, 	and unlike the general 	appointment term of 	one
academic year, 	are 	for less 	than a year or term. 	No academic
credit or 	credit 	towards 	residence 	is 	accorded 	for these
appointments.
Finally, 	some GSRs 	may be 	assigned to perform activities
clearly unrelated to dissertation research, 	such 	as 	clerical
tasks, 	manuscript reading, 	bibliography preparation, 	library
errands or even, 	in one instance, 	chauffeuring.
All 	graduate 	students within each department, 	whether
appointed to the disputed 	classifications 	or not, 	are 	treated
precisely the same. 	Admission, 	orientation, 	alignment with a
26

research 	advisor 	and 	undertaking 	research with 	a 	faculty 	member,
hours 	of work, 	and units 	of 	credit given are 	indistinguishable
between 	students 	supported by 	these 	classifications 	and 	those who
are not.
The record reflects 	several 	benefits 	to the University
accruing from its appointment of GSRs. 	For example, 	the GSRs'
contributions 	to 	the 	research projects 	in the 	form of 	actual
hands-on research 	enables 	the principal 	investigator 	to 	complete
the project 	and 	increases 	the 	likelihood that the 	faculty
member's 	research will 	be 	funded again. 	Faculty members 	may
include 	publications 	that were 	coauthored by graduate 	students 	on
their own 	curriculum vitae. 	The 	research 	accomplishments
themselves 	are a 	factor 	in the 	faculty members' 	own promotional
aspirations. 	Grants 	often fund not only 	salaries 	for lab
personnel, 	but the project 	equipment that 	is 	retained by the
University after the 	research project 	is 	completed. 	Furthermore,
grants 	generate 	income 	for the 	University 	in the 	form of 	overhead
fees. 	Finally, 	UCB's reputation is 	enhanced in the academic
community by the 	success 	it has 	in obtaining grants. 	UCB's
reputation attracts 	more graduate 	student 	applications 	and
potential 	faculty 	interest 	in a 	financially well-supported
institution. 	While the 	contribution of GSRs 	to the University
cannot be minimized, 	the 	faculty and University benefit 	in the
same way 	from the 	research of 	graduate 	students 	not 	in the
disputed 	classifications.
27

DISCUSSION
I. 	THE 	STATUTE AND CASE 	LAW
This 	is 	the 	first 	case before 	the 	Board considering the
status 	of 	graduate 	students 	at 	the University.9 The 	Board 	is
asked 	to 	determine 	whether 	the 	classifications 	litigated 	herein
are 	entitled 	to 	the protection accorded 	employees 	under 	HEERA.
Government Code 	section 	3562 	subdivision 	(f) 	of HEERA 	(hereafter
subdivision 	(f)), 	commands 	that we apply a two-prong balancing
test 	to 	determine 	if graduate 	student 	employees 	are 	covered under
9In New Haven Unified 	School 	District 	(1977) 	EERB 	Decision
No. 	14, 	the Board considered the 	status of 	student 	intern
teachers who were pursuing 	their 	education at the 	same time 	they
were hired as 	interns 	by 	the New Haven Unified 	School 	District.
The 	interns 	had baccalaureate 	degrees 	but 	no 	educational 	teaching
credentials. 	The 	interns performed all 	of the 	regular 	functions
of 	a 	teacher 	and had 	complete 	responsibility for the 	classes
taught, 	but were 	closely monitored by teachers. 	The Board held
that 	although 	they were paid at 	least 	a minimum wage 	and
functioned as 	teachers, 	the duties were incidental to their
status 	as 	students 	and they could not be 	included 	in a bargaining
unit.
In Modesto City Schools 	(1984) 	PERB Decision No. 	384, 	the
Board 	found 	the 	classification 	of 	a 	Psychologist-Intern was
appropriately placed 	in the 	certificated unit. 	The 	Psychologist-
Intern was 	not 	enrolled at 	the 	University, 	but worked 	full-time
for Modesto City 	Schools 	under minimal 	supervision; 	performed the
same duties 	as 	the other 	school psychologists; 	and received the
same benefits 	as 	other certificated 	employees, 	but was paid 	50
percent of 	a psychologist's wage. 	While 	interns 	had no guarantee
of 	continued 	employment, 	the district had hired 	former 	interns 	as
regular psychologists. 	The 	Board held that participation 	in an
internship 	required to qualify as 	a 	school psychologist was 	not,
in and of 	itself, 	determinative 	and 	found that 	the 	educational
concerns 	in this 	instance were 	secondary to 	the 	services
performed.
Both cases were decided under the 	Educational 	Employment
Relations Act, 	and are inapplicable to the present 	case due to
HEERA's 	unique 	statutory 	language 	in section 3562(f).
28

the Act. 	That provision reads 	as 	follows:
(f) 	"Employee" 	or 	"higher education
employee" 	means 	any employee of the Regents
of the University of California, 	the
Directors 	of Hastings College of the Law, 	or
the 	Board of Trustees 	of 	the California 	State
University, 	whose employment is principally
within the State of California. 	However,
managerial, 	and confidential 	employees 	shall
be 	excluded 	from 	coverage under this 	chapter.
The 	board may 	find 	student 	employees 	whose
employment 	is 	contingent 	on their 	status 	as
students 	are 	employees 	only 	if 	the 	services
they provide 	are 	unrelated 	to 	their
educational objectives, 	or. 	that those
educational 	objectives 	are 	subordinate 	to 	the
services 	they perform and 	that 	coverage 	under
this 	chapter would 	further the purposes 	of
this 	chapter. 	(Emphasis 	added.)
The ALJ 	found that GSIs, 	community teaching fellows, 	nursery
school assistants, 	and research assistants, 	when paid and
employed on an hourly basis,10 are 	employees 	under HEERA. 	The
ALJ 	further 	found that 	nonhourly GSRs 	are 	not 	employees.
The 	University 	excepts 	to 	the ALJ's 	interpretation of
subdivision 	(f) 	and application of 	The Regents 	of the University
of California v. 	Public 	Employment Relations Board 	(1986) 	41
Cal.3d 	601 	(Regents).11 The 	University argues 	that 	the ALJ
10These 	"hourly paid" 	research 	assistants 	can be 	further
identified as 	research assistants who 	(1) 	are paid hourly 	for
hours actually worked and reported; 	(2) 	average 	less 	than 20
hours per week; 	(3) 	are appointed for periods 	less 	than an
academic year; 	and 	(4) 	do not receive credit for their work.
11Specifically, 	the 	University 	asserts 	that 	the ALJ 	(1)
misinterpreted 	and 	misapplied 	the 	Board's 	position 	on 	the
quantity of time 	spent by GSIs providing 	services; 	(2) 	failed to
give proper weight 	to the 	evidence 	that 	learning to 	teach 	is
crucial 	to graduate 	student careers; 	(3) 	incorrectly assumed that
teaching 	lacked 	important 	educational 	value unless 	it was
required by the department; 	(4) 	incorrectly 	focused almost
exclusively 	on 	services 	performed while 	dismissing 	educational
29

shifted the burden of proof 	in this 	case to the University by-
engaging 	in the presumption that 	all 	graduate 	students 	are
employees 	unless 	the 	University 	establishes 	that 	the 	students
should be 	excluded 	from protection under the Act. 	Secondly, 	the
University 	contends 	the ALJ wrongly 	required 	educational
objectives 	to predominate 	over 	services 	provided 	in order 	for 	the
students 	to be 	excluded.12
AGSE 	refutes 	the University's 	arguments 	and urges 	the 	Board
to 	affirm the proposed decision on the 	graduate 	student
instructors 	and those 	graduate 	student 	researchers 	found 	to 	be
employees.1
w
Additionally, 	AGSE 	excepts 	to the ALJ's 	conclusions
that: 	(1) 	those graduate 	student researchers whose work is
objectives 	in a few paragraphs; 	(5) 	failed to accord appropriate
weight to the GSIs' 	status as 	students; 	(6) 	failed to consider
decisions 	of 	other 	jurisdictions; 	and 	(7) 	incorrectly relied on
only one of 	HEERA's purposes.
Additionally, 	with regard to the GSRs, 	the University argues
that 	the 	GSR classification 	should not be 	divided 	into 	two 	groups
with different 	status under HEERA. 	The 	University 	excepts 	to 	the
ALJ's 	finding 	that 	the 	group 	of 	hourly-paid 	research 	assistants
are 	employees 	under 	HEERA, 	and asserts 	that 	the ALJ 	erroneously
focused on the dissertation, 	rather than the total 	graduate
program, 	in concluding 	that 	services 	predominate over 	educational
objectives.
12To 	the 	extent 	that 	the ALJ's proposed decision can be
construed to 	impose 	a burden of proof upon the 	University, 	we
agree with the 	University's 	exceptions 	that the proper
construction of 	the 	statute 	requires 	the party 	seeking 	to
establish 	coverage under 	HEERA to 	show that 	the 	educational
objectives 	are 	subordinate to the 	services.
13We 	disagree with AGSE's 	contention 	that 	the ALJ 	decision
is 	inconsistent 	regarding 	employee benefits 	and 	incomplete
regarding 	indicia of 	employment. 	Any 	such 	inconsistencies 	or
omissions, 	if they exist, 	are inconsequential.
30
'

related 	to 	an academic 	discipline but does 	not 	contribute 	to
completion of a dissertation or degree are 	students; 	and 	(2)
those 	graduate 	students 	performing 	research 	services 	on 	sponsored
research projects which 	are 	directly related to 	the 	students'
degree 	or dissertation are 	students.
In construing a 	statute, 	we begin with the 	fundamental 	rule
that 	a 	court 	"should ascertain the 	intent of the Legislature 	so
as 	to effectuate the purpose of 	the 	law." 	(Moyer v. 	Workmen's
Compensation Appeals Board 	(1973) 	10 Cal.3d 222, 	230.) 	Further,
a 	fundamental maxim of 	statutory construction is 	that, 	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. 	In
other words, 	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. 	(Noroian v.
Department 	of Administration. 	Public 	Employees' 	Retirement 	System
(1970) 	11 Cal.App.3d 651, 	654, hg. 	den.; 	McQuillan v. 	Southern
Pacific Co. 	(1974) 	40 Cal.App.3d 802, 	805-806; 	Hoyme v. 	Board of
- -
Education 	(1980) 	107 Cal.App.3d 449, 	452; 	Great Lakes Properties,
Inc. 	v. 	City of El Secrundo 	(1977) 	19 Cal.3d 152, 	155; 	People v.
Boyd 	(1979) 	24 Cal.3d 285, 	294.)
To 	find that 	a 	student whose 	employment 	is 	contingent 	on his
or her status 	as 	a 	student 	is 	an 	"employee" 	and covered by HEERA,
the 	Board must 	find 	either that 	the 	services 	rendered 	are
unrelated to the 	student's 	educational 	objectives, 	or that those
31

educational 	objectives 	are 	subordinate 	to the 	services 	performed
and that 	coverage under this 	chapter would 	further the purposes
Of 	HEERA.
The 	only discussion of 	the 	legislative 	history of
subdivision 	(f) 	is 	contained 	in the Regents 	case decided by the
California 	Supreme Court. 	However, 	for the reasons 	stated below,
we 	find 	that the 	factual 	backdrop 	of 	Regents 	is 	so unique 	that 	it
severely 	limits 	Regents' 	application to 	the 	instant 	case. 	In
Regents, 	the 	California 	Supreme 	Court 	considered 	the 	status 	of
individuals 	who 	had 	graduated 	from medical 	school with 	a 	doctor
of 	medicine 	(M.D.) 	degree and who worked at hospitals 	owned or
operated by 	the 	University. 	The 	employees 	in question 	in
Regents, unlike here, 	worked 	full-time and engaged 	in no 	academic
course work. 	To qualify to practice medicine 	in California,
these 	individuals 	(housestaff) 	must participate 	in an approved
residency program. 	Generally, 	housestaff 	rotate 	through 	the
different hospital 	services 	relevant 	to 	their 	specialty. 	The
residency program requires 	extremely 	long hours, 	usually 	80 	to
100 hours per week, 	and lasts 	two to 	six years depending on the
specialty. 	From the 	first year of residency, 	housestaff are
involved 	in all 	aspects 	of direct patient 	care with 	little 	or no
supervision, 	and are even required to 	supervise other hospital
personnel, 	such as 	nurses 	and technicians. 	Housestaff 	salaries
vary, 	but 	they 	receive annual 	step 	and cost-of-living 	increases.
Housestaff 	also receive fringe benefits, 	including medical
coverage, 	medical malpractice insurance, workers' 	compensation
32

insurance 	and paid 	vacation.
In addressing the 	status 	of housestaff, 	the 	court 	engaged 	in
an extensive analysis of, 	and comparison to, 	National Labor
Relations 	Board 	(NLRB) 	precedent and found that, 	unlike the
National Labor Relations Act 	(NLRA), 	HEERA expressly permits 	PERB
to 	find 	that 	students who 	render 	services 	related 	or unrelated 	to
their 	educational 	objectives 	are 	entitled 	to 	collective
bargaining rights 	in appropriate circumstances. 4
In determining the 	status 	of housestaff, 	the 	Supreme Court
noted 	that 	the 	Legislature has 	not 	confined 	PERB 	to 	limit 	its
inquiry to the 	students' 	subjective 	state of mind. 	PERB must
look further, 	to 	services 	actually performed 	"to determine 	if 	the
students' 	educational objectives 	take a back seat to their
service obligations."15 (Regents. 	supra. 	41 Cal.3d 601 at
p. 	614.) 	In affirming the Board's decision that housestaff 	are
14The NLRB 	first 	addressed the 	issue of housestaff 	status 	in
Cedars-Sinai Medical Center 	(1976) 	223 NLRB 251 	[91 	LRRM 	1398]
and held that housestaff were not 	employees under the NLRA, 	since
they 	are primarily 	engaged 	in 	educational 	training 	and 	thus 	are
in an 	educational 	rather 	than 	employment 	relationship with 	the
hospital. 	The NLRB 	focused mainly on the purpose 	of housestaff
participation and paid 	little 	attention to 	the 	actual 	services
performed. 	In St. 	Clare's Hospital and Health Center 	(1977) 	22 9
NLRB 	1000 	[95 LRRM 	1180], 	the NLRB adopted a 	"primary purpose"
test which gave primary 	consideration to the 	students' 	subjective
intent 	in participating 	in the housestaff program. 	The NLRB
found 	that 	the 	individual's 	interest 	in 	rendering 	services 	is
more 	academic 	than 	economic 	and 	concluded 	that 	the 	students 	were
not 	covered by 	the 	NLRA.
15The 	court provides 	no 	reasonable 	guidance by which to
interpret the 	"back seat" 	test mentioned above, 	although a 	review
of 	the 	facts would indicate the 	court put 	emphasis 	on the
economic 	impact 	of 	the 	services 	rendered upon the 	operation of
the hospitals 	by the 	University.
33

employees 	under 	HEERA, 	the 	court placed 	considerable 	emphasis 	on
the degree 	to which the 	University must rely on housestaff 	in
order to 	operate the hospitals, 	concluding 	it would not be
possible to do 	so without their services.1 Furthermore, 	the
court 	acknowledged 	that 	PERB's 	determination of whether 	granting
collective 	bargaining rights 	would 	further 	the purposes 	of 	HEERA
involves 	questions 	of 	fact 	and policy 	and 	recognized 	PERB's
expertise 	in this 	area.
166
II. 	UCB'S 	GRADUATE 	STUDENT EMPLOYEE 	PROGRAM
In contrast to the 	facts 	in Regents, 	where the housestaff
- -
work at 	the hospital 	constituted 	100 percent of 	their 	studies,
the present 	case 	involves 	students who work as 	GSIs 	and GSRs 	in
addition to their own 	studies. 	Where 	as 	only those 	individuals
who 	have 	completed 	their 	studies 	and 	graduated 	from medical
school with a M.D. 	can participate in a residency program, 	those
individuals 	appointed to 	a 	GSI 	and GSR position must be
registered graduate 	students. 	To assure 	that 	the 	student's
academic progress 	is 	not 	impeded, 	the GSI 	and GSR positions 	are
generally 	limited to a maximum of half-time. 	Although 	the
supervision varies 	in each department, 	the emphasis 	is 	on the
one-on-one 	relationship between the 	faculty member 	and 	the 	GSI 	or
GSR. 	Significantly, 	appointment and reappointment to a
16Lucus, 	(Campbell) 	J., 	in his dissent, 	not unfairly
characterized 	the majority's 	conclusion as 	holding 	that 	the
"University has 	established 	its 	program as 	a device 	for procuring
a 	cheap 	source 	of 	skilled medical 	labor 	to work 	in 	its
hospitals." 	(Regents. 	supra. 	41 Cal.3d 601 at p. 	625)
34

particular GSI 	or GSR position is 	based on several 	factors,
including whether 	the graduate 	student 	is 	making 	appropriate
progress 	towards 	a graduate degree 	and 	is 	in good academic
standing.
In terms of 	salary, 	the GSIs 	and GSRs receive a 	fixed
stipend based 	on the 	financial 	requirements 	of 	the 	graduate
students 	and 	the 	amount 	of 	the 	stipends 	offered by 	competitive
universities 	and research 	laboratories. 	Step 	increases 	are 	not
available to the 	students 	in either the GSI 	or GSR positions, 	and
cost-of-living 	increases 	are 	not 	automatically 	granted 	each 	year.
The 	stipends 	are more 	in the 	nature of 	a 	living 	expense 	as
opposed 	to 	compensation 	for 	services 	rendered.
Although the GSIs 	and GSRs 	complete both 	student 	forms 	and
employment 	forms, 	the employment benefits 	received by the GSIs
and GSRs 	are 	limited. 	Unlike 	full-time UCB employees, 	the
students 	do 	no	
---	t receive 	retirement benefits, 	medical 	or dental
benefits, 	short-term disability insurance, 	paid life insurance,
paid vacation, 	or paid 	sick leave. 	The 	students 	are 	exempt 	from
unemployment 	insurance, 	and only 	in 	some 	instances 	are 	covered by
workers' 	compensation. 	Finally, 	unlike housestaff, 	who do not
pay tuition or 	student 	fees 	and do 	not receive grades 	or 	a degree
upon completion of 	the residency program, 	GSIs 	and GSRs 	do pay
the 	required tuition and 	student 	fees, 	receive 	credit 	for their
teaching and research positions, 	and receive a graduate degree
upon 	completion of 	their research dissertation.
35

In 	further contrast to Regents, 	where there were 	substantial
employment concerns 	in the area of wages, 	hours, 	and working
conditions 	(i.e., 	salary, 	hours, 	fringe benefits and vacation
time) 	which had a direct impact on housestaff, 	those 	concerns 	are
of 	a 	more 	limited 	nature 	for 	students 	pursuing their 	graduate
degrees 	in a wholly academic 	environment. 	The GSI 	and GSR
positions 	enable 	the 	students 	to acquire 	and develop 	the
necessary 	educational 	skills 	to 	achieve 	their 	educational
objectives. 	The indicia of 	employment present in the housestaff
positions 	are 	lacking in the GSI 	and GSR positions. 	The 	focus 	of
the 	graduate 	student program 	is 	not on the 	amount 	of 	the 	stipend,
hours, 	or fringe benefits, 	but, 	rather, 	on the educational
program, 	which 	includes 	research and teaching. 	The 	students'
choice of graduate 	school 	is 	based on the quality of 	the
educational 	program, 	including the prestige 	of 	the 	educational
institution, 	the reputation of 	the 	individual 	faculty members,
the 	opportunity 	for research 	in a particular 	specialty, 	the
availability 	of 	financial 	support, 	and the 	opportunity 	for
extensive 	training 	in both 	research 	and 	teaching.
III. 	APPLICATION OF 	THE 	STATUTORY TEST
As 	the 	facts 	in our case 	are distinguishable 	from Regents.
the 	Board must 	exercise 	its 	jurisdiction and 	expertise 	to 	further
interpret 	subdivision 	(f) 	and the 	court's 	application of 	that
provision in Regents.
- -
Our analysis 	is 	consistent with the 	statutory 	language and
existing precedent. 	According the 	language 	of 	subdivision 	(f)
36

and 	the 	California 	Supreme 	Court's 	interpretation of 	that 	statute
in Regents. 	in determining whether graduate 	student 	employees 	are- -
entitled to 	HEERA protection, 	we must 	first 	examine 	the 	student's
educational 	objectives 	and the 	services 	they actually provide.
A. 	THE 	EDUCATIONAL OBJECTIVES
The phrase 	"educational 	objectives" 	is 	not defined 	in either
the 	statute or 	in the Regents 	case. 	AGSE argues 	that graduate-
degree 	requirements 	should be 	used 	to 	define 	"educational
objectives"; 	the University 	favors 	a broader definition that
encompasses 	career goals. 	As 	more 	fully explained below, 	we
believe 	that 	the term 	"educational 	objectives" 	encompasses 	more
than 	just the desire to get a degree, 	and even more than career
goals. 	Therefore, 	we reject the ALJ's 	conclusion that GSIs 	and
selected GSRs 	are 	entitled 	to 	collective 	bargaining under 	HEERA.
The 	record 	supports 	a 	conclusion 	that 	the 	students 	derive 	an
educational 	benefit 	from their appointments. 	Although the ALJ
and 	even AGSE do not 	deny that 	the 	teaching 	and research
experience is 	educational, 	they do not equate 	"educational" 	with
"educational 	objectives." 	Defining 	educational 	objectives 	to
mean attainment 	of 	a 	degree 	and 	focusing 	upon 	student 	testimony
that 	the 	teaching experience does 	not 	further, 	and may at 	times
interfere with, 	the students' 	own progress towards their degrees,
AGSE 	argues 	and the ALJ 	finds 	that 	educational 	objectives 	are
subordinate to 	services.
The California 	Supreme Court notes 	that: 	"The Legislature
has 	clearly not 	instructed 	PERB 	to 	confine 	its 	inquiry 	to 	the
37

students' 	state of mind." 	(Emphasis 	in original.) 	We agree that
in ascertaining 	"educational 	objectives," 	we 	cannot 	confine
ourselves 	to 	looking 	solely 	at 	subjective 	opinions. 	Graduate
students 	questioned 	on 	the 	subject 	expressed 	their personal
opinions 	as 	to whether the teaching 	experience 	or research
experience was valuable, 	meaningless, 	or repetitious. 	The many
professors 	questioned were 	also 	asked 	their personal 	opinions 	on
the 	same 	subject, 	and almost uniformly reached the 	conclusion
that 	the 	teaching and research 	experiences 	were 	valuable 	to 	the
students' 	educational objectives. 	While such subjective
evaluations 	have 	some value, 	to base a decision 	solely on
subjective 	judgments 	is 	to 	invite 	re-examination of 	the 	issue
each time the cast of characters 	changes. 	Thus, 	neither the
opinions 	of 	the 	students 	nor the opinions 	of 	the professors 	on
educational 	objectives, 	expressed over 	32 days of hearing and
memorialized 	in approximately 	7,000 pages 	of 	transcript, 	can be
considered 	in a vacuum, 	but must be 	analyzed within the 	framework
of what 	the 	University requires 	and provides.
17Taken to the extreme, 	a reliance on 	subjective 	judgments
of 	the 	individual would necessitate that the 	students 	be 	asked
individually whether 	they 	think 	their particular 	appointment
furthers 	their personal 	educational 	objectives—only 	then 	could 	a
determination be made as 	to whether that 	individual 	is 	an
employee 	or 	student. 	The 	Legislature 	surely could 	not 	have
intended 	such an absurd result. 	It 	is well 	settled that a
statute 	must 	be 	given reasonable 	and 	common 	sense 	interpretation
consistent with the 	apparent purpose 	and 	intention of 	the
lawmakers, 	practical 	rather than technical 	in nature, 	which upon
application will 	result 	in wise policy 	rather than mischief 	or
absurdity. 	DeYoung v. 	City of San Diego 	(1983) 	147 Cal.App.3d
11.
38
17	17

The 	issue 	in this 	case 	is 	how the academic 	considerations 	of
student, 	faculty, 	and administration are to be weighed against
the 	kind of 	services 	the 	student 	is 	performing within the 	context
of 	the University's 	entire graduate 	student program. 	For
example, 	a 	student 	aspiring to a 	career as 	a professor might want
to 	teach beyond the 	four year maximum. 	Although 	the 	student may
apply 	for an exception to 	the 	four-year rule, 	the 	University has
discretion to deny any extension. 	Similarly, 	a particular
student 	may plan 	to procure 	an 	industry 	or other 	non-teaching
research position: 	yet, 	if teaching happens to be a requirement
of 	obtaining his 	or her degree, 	that 	student must 	complete the
required number of terms 	as 	a GSI. 	In fact, 	some of the 	students
who 	testified 	stated 	that 	they 	considered 	teaching 	assignments 	an
"annoyance"; 	even so, 	they were bound to complete the assignment.
The 	record 	supports 	a 	conclusion that 	the University
structures 	the 	graduate program with 	an 	eye 	toward producing
"scholars" 	who will 	be able 	to use the knowledge they are
acquiring to 	further their own 	career aspirations 	and, 	at 	the
same time, 	the reputation of the University. 	Thus, 	the term
"educational 	objectives" 	encompasses 	far more than the 	attainment
of a degree. 	The GSRs, 	as they progress towards 	their own
degrees, 	bestow benefits 	upon the 	University by helping to
complete 	grant-funded projects 	which 	enhance 	the 	reputation 	of
the GSR, 	the faculty and the University. 	The GSIs, 	while
providing a 	service 	that helps 	the 	University 	fulfill 	its 	mission
to educate undergraduates, 	are, 	at the same time, 	acquiring
39

teaching 	experience 	and other benefits 	that 	accrue 	from 	that
experience 	and 	that will 	assist 	them 	in 	attaining 	their 	career
goals.
Thus, 	while the 	statutory 	language 	supports 	a 	conclusion
that it 	is the students' 	educational objectives that are to be
considered 	in applying the balancing test, 	in practical 	effect,
those objectives 	are 	the mutual 	objectives 	of 	UCB 	and the
students. 	To assure fulfillment of these mutual objectives, 	the
University provides 	the 	students 	with 	a 	mentor-apprentice
relationship, 	whether or not the 	students 	are 	in one of the
disputed 	classifications. 	In the 	case 	of 	the majority of 	the
GSRs, 	the 	student works 	closely with 	the 	faculty advisor on
either 	the 	faculty 	advisor's 	research project 	or 	the 	student's
dissertation research. 	In some cases, 	the faculty advisor's
project may yield a dissertation topic. 	In others, 	the research
experience may 	fulfill 	other educational 	objectives. 	This
process 	is 	excellently 	described 	in 	Leland 	Stanford 	Junior
University 	(1974) 	214 NLRB 621 	[87 LRRM 	1519], 	wherein the NLRB
held 	research 	assistants 	were 	not 	employees 	within 	section 	2(3)
of 	the NLRA 	since 	the 	salaries 	they received 	constituted 	a
stipend and not wages within the meaning of 	the NLRA. 	The 	NLRB
states at page 	622:
Each 	student's 	graduate 	career usually
involves 	progression 	from 	fairly 	carefully
supervised 	research problems 	designed 	to
acquaint him or her with 	research 	techniques,
through 	graduate-student 	classroom work 	where
a definite 	answer exists 	to 	the 	research 	. . .
project undertaken, 	and then to Ph.D.-thesis
research 	into problems where 	the 	answer 	is
40

unknown or uncertain or there may be 	no
answer at all. 	The 	exercises prepare the
student 	for selection of 	a topic 	for a
dissertation and 	serve 	as 	a 	trial period 	for
both 	the 	student 	and 	the 	faculty 	adviser 	to
determine 	the 	student's 	interest 	and 	ability.
The preliminary 	training 	and 	research 	may 	or
may not be 	related 	to 	or be 	included within
the 	topic 	ultimately 	selected 	for the
dissertation, 	and it appears 	that a candidate
may work on various 	projects 	before 	finding
one suitable for a thesis. 	Thus, 	the student
may work on a practice problem to 	acquaint
him with research, 	may 	start to research 	in
one direction and 	learn there 	is 	not 	enough
material 	for a thesis, 	or may 	find 	something
different that 	interests 	him or her more.
Or, 	the 	subject of 	the research may exceed
the capabilities 	of 	the 	student or of his
advisor to assist him; 	the 	early research may
not fit 	into the thesis; 	the 	subject may have
been treated by 	someone 	else; 	or there may be
no 	space 	or equipment 	available 	to
accommodate 	the project 	selected by 	the
student. 	It is clear, 	however, 	that all
steps 	lead 	to 	the 	thesis 	and are 	toward 	the
goal of obtaining the Ph.D. 	degree.
The 	GSIs 	also work under the 	general 	direction of 	a
prominent 	faculty member who, 	to a greater or 	lesser extent
depending 	on 	the particular 	classification 	and 	the 	individuals
involved, 	guides 	and 	supervises 	the 	course 	content and direction.
Thus, 	while the GSI might be given a great deal of 	independence
in preparing and presenting the educational materials, 	it 	is 	the
professor who 	selects 	the 	text 	and 	course materials.
Whether working as 	an instructor or a researcher, 	or both,
the graduate 	student is 	engaged in a professional, 	academic
relationship with a member of 	the 	faculty as 	he 	or 	she progresses
towards 	a 	graduate degree. 	The mutual goals of 	the 	individual
41

and the University can, 	in this way, 	be attained to the benefit
of 	all parties 	involved.
B. 	THE SERVICES PROVIDED
The 	Supreme Court 	in Regents 	instructs us 	that our 	inquiry
must 	not 	end upon reaching a 	conclusion as 	to 	educational
objectives—we 	must 	also 	examine 	the 	services 	actually performed.
Addressing 	first the 	quantity of 	services 	rendered, 	we 	note 	the
difficulty 	in generalizing. 	While 	the great majority of 	graduate
student 	employees 	are 	formally 	limited to half-time, 	the 	actual
time worked 	varies 	depending upon the 	individual 	classification,
the department, 	the time of the school year, 	etc. 	Thus, 	some
GSRs 	work 	far more 	than the 	allotted hours 	should 	their 	research
projects 	require 	it, 	while the workload of 	the GSIs 	varies
depending upon the 	course 	syllabus. 	Similarly, 	although the
general 	rule 	is 	that GSIs 	cannot 	serve 	in GSI 	classifications 	for
more than four years, 	the number of terms 	a 	student 	spends
teaching may depend upon: 	(1) 	the GSI's past performance 	as 	an
instructor; 	(2) 	whether the department needs the position to aid
in recruiting new students 	into the department's program; 	(3)
whether the 	incumbent has 	alternative 	sources 	of 	support; 	(4)
whether 	the 	GSI 	will 	benefit 	educationally by 	assisting 	in the
same course again, 	assisting in a different course, 	or
concentrating on other parts 	of 	his 	or her educational
experience; 	and, 	(5) 	most importantly, whether the GSI 	is making
appropriate progress 	towards 	a graduate degree 	and 	is 	in good
academic 	standing. 	Clearly, 	the quantity of 	services 	rendered 	is
42

dependent upon, 	and affected by, 	the climate of the graduate
student 	employee's 	academic 	environment. 	While the parties 	and
the ALJ 	seem to 	focus 	primarily 	upon the 	quantity 	of 	services
rendered 	in terms 	of hours 	of work and years 	of 	service, 	our
examination cannot 	end there. 	We must 	also 	examine 	the 	nature 	of
the 	services 	rendered and the 	context within which they 	are
provided. 	As 	to the nature of 	the 	services 	rendered, 	what GSIs
and GSRs 	actually do 	is 	not really in dispute: 	generally, 	the
GSIs 	perform teaching 	functions 	and 	the 	GSRs perform research
functions.
What we 	find persuasive 	is 	that 	the 	University 	framework
for provision of these 	services 	places 	great emphasis 	upon the
academic 	environment 	in which 	they 	are provided 	and 	de-emphasizes
the 	employment 	aspect of 	the 	relationship 	from the 	time 	of 	the
student's 	admission through graduation. 	Most 	obviously,
positions 	in the disputed 	classifications 	are 	reserved 	for
registered graduate 	students. 	During the 	admission process,
competition with 	other 	institutions 	for 	the most 	qualified people
results 	in 	some departments 	virtually 	guaranteeing 	financial
support 	to admitted 	students 	by appointments 	to 	these positions.
Compensation for the 	appointments 	is 	not based upon the market
value of the 	student's work, 	but 	instead 	is 	related to a number
of 	factors 	unconnected with the 	labor market as 	such. 	The
stipend or compensation 	is 	established at a 	level 	that will 	both
attract 	students 	who will 	make 	the 	greatest 	contribution
academically, 	and 	sustain those 	students without 	exhaustion of
43

the 	resources 	of the department. 	While the principle 	in the
market place 	is 	to 	accomplish the most work with the 	least
resources 	so as to maximize profit, 	the University attempts 	to
spread 	the 	available 	finances 	as 	far as 	possible 	to 	sustain as
many 	students 	as possible.
Once appointed as 	a GSI 	or GSR, 	the 	students 	are generally
limited 	to working a maximum of half-time. 	At 	least one 	reason
for this 	limitation is 	a 	concern on the part of 	the University
that the 	students' 	academics do not suffer. 	Similarly, 	one of
the purposes 	of 	the 	four-year 	limitation on GSI 	appointments 	is
to 	assure 	that the opportunity to teach 	is 	available to 	a 	large
number of 	graduate 	students. 	Each appointment 	is 	limited to 	one
year 	to 	allow for evaluation of 	the 	student's 	academic progress.
As 	noted above, 	reappointment to a 	specific 	classification is
based 	almost primarily 	on academic 	considerations.
Paramount 	concern 	for the 	student's 	academic 	progress 	is
further demonstrated by the 	fact 	that 	the 	layoff policy 	that
applies 	to 	other University 	employees 	is 	not applicable 	to 	the
graduate 	students working 	in the disputed 	classifications. 	As
was 	noted 	in a University memorandum 	(See 	Summary of the Facts),
considerations 	relating 	to 	the 	quality 	of 	the 	student's 	academic
work 	and progress 	toward degree 	objectives 	take precedence 	over
the 	considerations 	of 	layoff policy. 	Similarly, 	while 	formally
the APM's 	three-step 	grievance procedure 	applies 	to 	all
individuals 	employed at 	the 	University 	in any 	capacity, 	in
44

practice, 	graduate 	student grievances 	are resolved not through
the 	chancellor's 	office but 	through the 	graduate department.
Finally, 	we note that only a handful of graduate 	student
employees 	are 	hired 	to work at 	the 	University 	after having
received their degrees. 	The University is 	not, 	through
appointments 	to 	the disputed 	classifications, 	grooming these
students 	for 	employment within 	its 	own walls 	as 	does 	the 	typical
employer 	in the 	market place--the 	University 	is 	grooming 	scholars
who 	have 	only 	a 	transitory 	interest 	in the 	appointments
themselves.
C. 	INTERRELATIONSHIP 	OF 	EDUCATIONAL 	OBJECTIVES AND 	SERVICES
PROVIDED
Having 	examined the 	educational 	objectives 	of 	the 	graduate
student 	employees 	and the 	services 	actually performed, 	we 	are
next directed to 	ascertain whether the 	students' 	"educational
objectives 	are 	subordinate 	to 	the 	services 	they perform." 	The
test 	is 	not an easy one to apply in that 	it 	enjoins 	us 	to balance
a 	seemingly 	subjective 	element,18 educational objectives, 	against
an objective one, 	services. 	As 	the dissent 	in Regents 	aptly
- -
notes, 	"One cannot 	'balance' 	apples and oranges without
calibrating 	the 	scale." 	The majority 	in Regents 	answered the
- -
dissent 	by 	explaining 	its 	interpretation of 	the 	relevant
statutory language as 	follows:
18As 	explained above, 	we do not believe the 	"educational
objective" 	side of the scale is totally subjective - yet, 	much of
the 	record 	consists 	of 	testimony of 	students 	and professors
regarding their opinions 	of 	the 	educational value 	of 	the
appointments 	in question.
45

The 	Legislature has 	clearly 	not 	instructed
PERB to confine 	its 	inquiry to 	the 	students'
state of mind. 	. 	. 	The Legislature has
instructed 	PERB 	to 	look not 	only at 	the
students' 	goals, 	but also at the services
they actually perform, 	to 	see 	if the
students' 	educational objectives, 	however
personally 	important, 	are nonetheless
subordinate to 	the 	services 	they are 	required
to perform. 	Thus, 	even if PERB finds that
the 	students' 	motivation for accepting
employment was primarily educational, 	the
inquiry does 	not 	end here. 	PERB must 	look
further—to 	the 	services 	actually performed--
to determine whether the 	students'
educational 	objectives 	take 	a back 	seat 	to
their 	service 	o b l i g a t i o n s . . . .
(41 Cal.3d at p. 	614.)
The 	"scale" 	was more easily read in Regents. 	however, 	than-
it is 	in the instant case. 	In Regents. 	the housestaff were no
longer 	students 	but were graduate M.D.s. 	They received no
grades, 	took no examinations, 	and did not obtain a degree at the
end of 	the residency. 	As 	the Supreme Court pointed out, 	indicia
of 	student 	status was 	almost completely 	lacking.
In contrast to Regents, 	in the 	instant case, 	as pointed out
above, 	the graduate 	student employees have 	indicia of both
employee 	and 	student 	status. 	While we believe 	indicia 	of 	student
status outweigh indicia of employee 	status, 	in fact, 	the 	students
are 	treated as 	students 	in 	some respects 	and as 	employees 	in
others. 	The 	services rendered, 	especially on the part of the
GSIs, 	are only one part of a varied educational program: 	the
students 	not only work on their dissertations, 	but may have 	their
own classes 	to attend as well. 	Additionally, 	the educational
objectives 	in this 	case 	are 	so 	entwined with the 	services
46

rendered, 	to 	evaluate 	fairly 	each 	interest and to 	reach a 	correct
result 	is 	an extremely 	frustrating endeavor. 	Thus, 	to apply the
balancing test to the facts of this 	case, 	the 	scale must be
recalibrated.
Instead of 	looking at 	each 	side 	of 	the 	scale and weighing
each 	interest 	(academic 	and employment) 	independently, 	a more
helpful 	approach 	is 	to 	examine how the 	two 	interests 	interrelate
and determine which 	side 	ultimately prevails when the 	two
interests 	conflict. 	The result of 	such an approach 	sheds 	light
on which of the two 	interests 	is 	"subordinate" 	or, 	in the words
of the Supreme Court, 	which 	"takes a back seat." 	Furthermore, 	by
examining the balancing test 	from this 	new perspective, 	we 	avoid
having 	to weigh 	subjective 	against 	objective 	factors 	in reaching
our 	conclusion.
For example, 	although the 	students 	testified that their
appointments 	sometimes 	interfered with 	their own courses 	or
research, 	the 	University's policy of 	not 	approving reappointments
in cases 	where 	the 	students were not making adequate progress
towards 	their 	own degrees 	assures 	that ultimately 	academic
interests prevail. 	Furthermore, 	the record reflects that the
faculty 	actually discouraged 	the 	students 	they were 	advising 	from
continuing 	to 	teach 	if 	the 	teaching 	appointment was 	substantially
slowing 	or 	interfering with 	their academic 	progress. 	Academics
also prevail 	over employment 	in the 	formulation, 	implementation
and/or application of 	the 	University's 	policies 	regarding
grievance resolution, 	layoff, 	admission and compensation.
47

Weighing the 	facts 	of 	this 	case 	on our newly calibrated
scale, 	we 	find that 	in cases 	of 	conflict between academic 	and
employment 	considerations, 	academic 	considerations 	ultimately
prevail. 	We therefore conclude, 	based upon the record as 	a
whole, 	that the 	students' 	educational objectives are not
subordinate 	to 	the 	services 	they actually perform as 	GSIs 	and
GSRs. 	As 	to the handful 	of GSRs who perform tasks 	that are
unrelated, 	or only peripherally related, 	to 	their educational
objectives 	and who 	have 	been 	identified by 	the ALJ 	in this 	case
as hourly employees, 	we are convinced that, 	as more 	fully 	set
forth below, 	the purposes 	of 	the Act would not be 	furthered by
severing 	them 	from 	the 	larger whole 	and 	granting 	them 	collective
bargaining 	rights.
IV. 	THE PURPOSES OF THE ACT
Even 	if 	the Board was 	to 	find 	that the 	services provided by
the GSIs 	and GSRs 	outweigh the 	educational objectives, 	under the
language of 	subdivision 	(f), 	the Board must 	still determine
whether 	finding 	these GSIs 	and GSRs 	to be 	employees 	under HEERA
would 	further the purposes 	of 	the Act.
Section 3561 	of 	HEERA states 	its purposes:
(a) 	It is 	the 	further purpose of 	this
chapter to provide 	orderly 	and 	clearly
defined procedures 	for 	meeting 	and 	conferring
and the resolution of 	impasses, 	and to define
and prohibit 	certain practices 	which 	are
inimical 	to the public 	interest.
(b) 	The Legislature recognizes 	that 	joint
decisionmaking 	and 	consultation 	between
administration 	and 	faculty 	or 	academic
employees 	is 	the 	long-accepted manner of
governing 	institutions 	of 	higher 	learning 	and
48

is 	essential 	to the performance of the
educational missions 	of 	these 	institutions,
and declares 	that 	it 	is 	the purpose 	of 	this
chapter to both preserve 	and 	encourage 	that
process. 	Nothing contained 	in this 	chapter
shall be construed to restrict, 	limit, 	or
prohibit 	the 	full 	exercise 	of 	the 	functions
of 	the 	faculty 	in any 	shared 	governance
mechanisms or practices, 	including the
Academic 	Senate 	of 	the 	University of
California and the divisions 	thereof, 	the
Academic 	Senates 	of 	the California 	State
University, 	and other faculty councils, 	with
respect to policies 	on academic 	and
professional 	matters 	affecting 	the 	California
State University, 	the University of
California, 	or Hastings College of the Law.
The principle 	of peer review of 	appointment,
promotion, 	retention, 	and tenure for academic
employees 	shall be preserved.
(c) 	It 	is 	the policy of the State of
California 	to 	encourage 	the pursuit of
excellence in teaching, 	research, 	and
learning through the 	free 	exchange 	of 	ideas
among the faculty, 	students, 	and staff of the
University of California, 	Hastings College of
the 	Law, 	and the California State University.
All parties 	subject to 	this 	chapter 	shall
respect 	and 	endeavor 	to 	preserve 	academic
freedom 	in the 	University of 	California,
Hastings 	College of the Law, 	and the
California 	State 	University.
In essence, 	the Act protects 	the academic 	or education process 	in
order to preserve and encourage 	excellence 	in research, 	teaching,
and 	learning. 	While 	the ALJ 	focused on the 	"development 	of
harmonious 	and 	cooperative 	labor relations 	between 	the public
institutions 	of higher education and 	their employees," 	he did not
address 	the 	academic 	nature 	of 	the professor-student
relationship.
While we 	abide by the 	Supreme Court's 	rejection of 	the NLRB
"primary purpose" 	test, 	we nonetheless 	find the NLRB's discussion
49

of 	labor policy pertinent to the present 	case. 	As 	the NLRB
adeptly 	stated in St. 	Clare's 	Hospital and Health Center, 	supra,
229 NLRB 	1000:
It 	is 	important to recognize that the
student-teacher relationship 	is 	not 	at 	all
analogous 	to 	the 	employee-employer
relationship. 	The 	former 	is predicated upon
a mutual 	interest 	in the 	advancement of the
student's 	education and 	is 	thus 	academic 	in
nature. 	The 	latter is 	largely predicated
upon conflicting 	interests 	of 	the 	employer 	to
minimize 	cost 	and the 	employees 	to maximize
wages and is thus economic 	in nature. 	This
is, 	in our judgment, 	an extremely important
distinction because 	the 	collective-bargaining
process 	is 	itself 	fundamentally an economic
process. 	From the 	standpoint of national
labor policy, 	subjecting academic 	decision-
making to 	collective bargaining 	is 	at best 	of
dubious 	value because 	academic 	concerns 	are
largely irrelevant to wages, 	hours, 	and terms
and conditions 	of 	employment. 	From the
standpoint of 	educational policy, 	the nature
of 	collective bargaining 	is 	such that 	it 	is
not 	particularly 	[sic] 	well 	suited to
academic 	decision making. 	The 	inevitable
change 	in 	emphasis 	from quality 	education to
economic 	concerns which would 	accompany
injection of 	collective 	bargaining 	into 	the
student-teacher relationship would, 	in our
judgment, 	prove detrimental to both labor and
educational policies.
The 	importance 	of 	the mentor 	relationship 	between 	the professors
and 	their 	students 	in the pursuit 	of 	educational 	excellence
cannot be 	understated. 	The record 	is 	replete with testimony 	from
both professors 	and 	graduate 	students 	which describe 	the
professor-student 	assistant 	relationship 	as 	including 	many 	more
hours 	than the required minimum, 	one-on-one 	interaction, 	mutual
collaboration on lectures 	and 	research papers, 	participation 	in
seminars, 	and constructive 	comments on each other's written work.
50

The 	testimony also 	establishes 	that 	the GSI 	and GSR
positions 	are part of the University's means 	of 	guaranteeing
financial 	support to 	its 	graduate 	students. 	The 	students'
purpose in applying for these positions 	is twofold: 	(1) 	to
acquire 	and 	develop 	the 	necessary 	educational 	skills 	to 	achieve
their educational objectives; 	and 	(2) 	to receive a living expense
to 	enable 	them to 	financially 	support 	themselves while 	they
continue 	their degree program. 	Stipends 	for these academic
appointments 	are not based upon the market value of 	the 	students'
work, 	but are 	established based on 	information provided by 	a
network 	of 	universities 	and research 	laboratories 	and 	an
assessment 	of 	the 	entire 	financial 	requirements 	of 	graduate
students 	(i.e., 	tuition, 	student fees). 	The stipend is set at a
level which will 	attract 	the 	most-qualified 	students 	and will
sustain as 	many 	students 	as 	possible without the 	exhaustion of
the department's 	resources. 	Unlike the 	employer-employee
relationship where 	salary and promotion are the major goals, 	the
graduate 	students' 	major goal 	is to 	secure a graduate level
education that will 	serve 	their career aspirations. 	Collective
bargaining would 	emphasize 	economics, 	which would become 	the
primary goal at the 	expense of 	the academic 	goals 	of the GSI 	and
GSR programs.
Regardless 	of whether a 	graduate 	student has 	financial
support 	in the form of a research assistantship, 	grant, 	or
fellowship, 	all graduate 	students pursuing their Ph.D. 	degree
engage in extensive research. 	In fact, 	the Ph.D. 	degree is
51

primarily a research degree. 	Often, 	it is 	impossible to
distinguish 	between 	those 	graduate 	students 	working 	on 	research
for 	the 	grant 	or 	fellowship 	and 	those 	engaging 	in 	their own
research 	for their dissertation. 	All work extensive hours 	on
research projects, 	and each have their own faculty advisor.
Consequently, 	it would be arbitrary to designate the GSRs 	as
employees 	and 	exclude 	all 	other graduate 	students 	performing
research 	under 	essentially 	the 	same 	conditions 	from 	coverage
under HEERA. 	Carving out 	some 	or all 	of 	the GSRs 	and designating
them as 	employees would not 	encourage 	the pursuit 	of 	excellence
in 	research 	or promote 	harmonious 	and 	cooperative 	labor relations
among all 	the 	graduate 	students 	and 	the 	University.
With regard to the GSIs, 	there are 	sixteen departments 	that
require 	their 	graduate 	students 	to 	be 	GSIs 	during 	their 	education
in order to complete the Ph.D. 	degree. 	In some departments,
there 	is 	a general policy that their graduate 	students 	serve 	as
GSIs. 	Even if no 	such policy exists, 	the record reveals 	that
most 	graduate 	students 	serve 	as 	GSIs 	at 	some time during their
graduate 	education. 	Although 	it 	could be argued that 	including
GSIs 	under 	the 	coverage 	of 	HEERA 	could promote harmonious 	and
cooperative 	labor relations among the GSIs, 	there 	is 	no evidence
that 	collective 	bargaining would 	encourage 	the pursuit 	of
excellence 	in teaching. 	Like the GSR program, 	the GSI program is
also 	a means 	of 	financial 	support 	necessary to 	enable 	the
graduate 	students 	to 	continue 	their graduate 	education.
Additionally, 	testimony demonstrates 	that the 	selection process
52

for GSIs 	is 	a mutual process whereby the departments 	try to
accommodate the professors' 	and graduate students' 	choices. 	GSI
choices 	are based on the 	graduate 	students' 	desire to 	learn a
particular 	subject, 	refresh their background in fundamentals, 	or
learn a 	different 	approach or perspective to a 	topic 	through 	a
particular professor or course. 	This 	selection process
emphasizes 	the academic 	nature of 	the GSI 	program. 	The GSI
program 	is 	an educational 	experience wherein the 	GSI 	learns 	from
the professors 	and the 	students. 	This 	type of relationship 	is
not 	analogous 	to an employer-employee relationship, 	but 	involves
the mutual 	goal of 	learning. 	Imposing the 	economic 	goals 	of
collective 	bargaining on the 	GSI 	program would not promote 	or
encourage 	the pursuit 	of 	excellence 	in teaching 	and 	learning.
Further consideration 	is 	the 	fact 	that graduate 	students 	may
serve as 	both GSIs 	and GSRs during their graduate 	education, 	and
sometimes 	serve 	in both capacities 	at the 	same time. 	The
continuous 	movement 	among graduate 	students 	in and out 	of 	the GSI
and GSR programs 	does 	not 	make 	collective bargaining 	a 	feasible
alternative. 	Instead of promoting harmonious 	and 	cooperative
labor relations 	among the GSIs 	and GSRs, 	finding that 	the GSIs
and GSRs 	are 	employees 	under 	HEERA would 	split 	the 	graduate
students 	into two groups, 	whose members would change 	each quarter
or 	semester depending on the 	current 	available GSI 	and GSR
appointments. 	Such 	instability does 	not promote harmonious 	or
cooperative 	labor relations.
53

Finally, 	in some instances, 	it is virtually impossible to
•separate academics 	from economics. 	For example, 	the overlapping
concerns 	in the 	selection and retention of GSIs 	and GSRs, 	hours
of work, 	salary, 	and 	job 	security would 	involve the parties
bargaining over the current academic practices. 	Thus, 	the
academic 	nature of 	the GSI 	and GSR appointments, 	which promotes
the 	free 	exchange of 	ideas 	necessary 	for the graduate 	students 	to
become 	scholars 	and achieve their educational 	objectives, 	would
be 	sacrificed 	for 	the 	economic 	nature 	of 	collective 	bargaining.
This 	result 	is 	contrary to 	the purpose 	of 	HEERA to 	encourage 	the
"pursuit of 	excellence 	in teaching, 	research, 	and learning
through the 	free exchange of 	ideas 	among the 	faculty, 	students,
and staff. 	. 	. 	."
CONCLUSION
For the reasons 	stated above, 	we 	find that 	subject 	to the
exceptions 	noted below, 	none of 	the disputed classifications 	are
employees 	for purposes 	of 	coverage 	under HEERA.1 9 Therefore, 	we
find 	that 	the 	University did 	not violate 	sections 	3571(a) 	and 	(b)
19As 	the Board 	finds 	that the GSIs 	and GSRs 	are not
employees under HEERA, 	the parties' 	exceptions 	regarding the
Order and Notice are no longer relevant. 	However, 	as this 	case
only 	involves the University of California, 	Berkeley, 	the
University's 	exception to 	limit 	the Order and Notice 	to 	the
Berkeley 	campus 	has 	merit.
Additionally, 	the exceptions 	to the ALJ's 	factual 	statements
on pages 	103, 	110-111, 	116, 	and 	120 and AGSE's exception that the
ALJ 	misstated 	and 	misunderstood AGSE's 	argument 	regarding 	the
services 	performed 	on grant-funded 	research projects 	do 	not 	need
to 	be 	considered by the 	Board as 	these 	exceptions 	do 	not 	affect
the 	Board's 	findings 	and conclusions.
54

of 	the Act by 	failing to 	recognize AGSE 	as 	an employee
organization or graduate 	student 	employees 	in the disputed
classifications; 	and by 	failing to 	implement dues 	deduction 	for
the 	disputed 	classifications.
As 	for the 	Community Teaching 	Fellow, 	Nursery School
Assistant, 	and Acting Instructor classifications, 	we 	find that
the 	employees 	in these 	classifications 	are 	entitled 	to 	coverage
under 	HEERA. 	We 	further 	find 	that 	the 	University violated
sections 	3571(a) 	and 	(b) 	of the Act by failing to recognize and
implement dues 	deductions 	for the 	graduate 	student 	employees 	in
these 	classifications 	and by 	failing 	to 	recognize AGSE 	as 	an
employee 	organization representing 	these 	employees.
ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the 	entire record 	in this 	case, 	we 	find that the Regents 	of 	the
University of California has 	violated 	sections 	3571(a) 	and 	(b) 	of
the 	Higher 	Education Employer-Employee 	Relations 	Act.
It 	is 	hereby ORDERED that 	the 	Regents 	and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to recognize graduate 	student employees
employed 	at 	the 	University of 	California 	at 	Berkeley 	in the
classifications 	of Community Teaching Fellow 	(Title Code 	2305),
Nursery School Assistant 	(Title Code 2286), 	and Acting Instructor
(Title Codes 	1401, 	1407, 	and 1417) 	as employees within the
meaning of 	section 3562(f) 	of HEERA; 	and Association of Graduate
55

Student 	Employees 	as 	an 	employee 	organization representing 	these
employees.
2. 	Refusing to 	implement payroll deductions 	of dues
for AGSE 	from such employees, 	upon request.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS ACT:
1. 	Implement payroll deduction of dues 	for the
Association of 	Graduate 	Student 	Employees 	upon request 	of 	the
above-mentioned 	employees within the meaning of 	section 	3562(f).
2. 	Within thirty-five 	(35) 	days 	following the date the
Decision is 	no 	longer subject to reconsideration, 	post at all
locations 	at 	the 	University of 	California, 	Berkeley where notices
to 	student employees 	are 	customarily placed, 	copies 	of 	the Notice
attached, 	signed by 	an authorized agent 	of 	the 	Regents 	of 	the
University of 	California. 	Such posting 	shall 	be maintained 	for a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall be taken to 	insure 	that this 	Notice 	is not reduced 	in 	size,
defaced, 	altered, 	or covered by any other material.
3. 	Written notification of 	the actions 	taken to 	comply
with this 	Order 	shall be made 	to 	the 	San Francisco 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with his/her 	instructions.
Chairperson Hesse 	joined 	in this 	Decision.
Member Craib's 	concurrence and dissent begins 	on page 	57.
56

Member Craib, 	concurring and dissenting: 	I 	concur 	in the
majority's 	conclusion that 	graduate 	students 	in the 	disputed
research 	classifications 	are 	not 	"employees" 	within the meaning
of 	Higher Education Employer-Employee Relations Act 	(HEERA). 	As
explained below, 	I 	would reach that 	result without 	resorting to
the majority's 	flawed analysis. 	I 	must dissent 	from the
majority's 	holding 	that 	those 	in the 	disputed 	teaching
classifications 	are 	not 	"employees." 	The majority reaches 	that
result through two major means. 	One, 	it effectively refuses 	to
apply the analysis 	of HEERA section 3562, 	subdivision 	(f)
(hereafter 	subdivision 	(f)) 	set 	forth 	in The Regents 	of the
University of California v. 	Public 	Employment 	Relations 	Board
(1986) 	41 Cal.3d 601 	[224 Cal.Rptr. 	631] 	(hereafter Regents).
That case, 	of course, 	is binding upon this Board. 	Two, 	in order
to 	reach the conclusion it does, 	the majority presents 	a highly
distorted view of 	the 	record, 	essentially parroting 	the
University of California at Berkeley's 	(University) 	arguments 	in
its brief 	in support of 	its exceptions. 	In fact, 	I believe the
University presents 	a more 	evenhanded view of 	the 	record 	than
does 	the 	majority.
The 	Proper 	Statutory 	Test
Subdivision 	(f) 	states, 	in pertinent part:
. 	. 	. 	The board may find student employees
whose 	employment 	is 	contingent 	on their
status 	as 	students 	are employees 	only 	if 	the
services 	they provide 	are 	unrelated 	to 	their
educational objectives, 	or, 	that those
educational 	objectives 	are 	subordinate 	to 	the
services 	they perform and 	that 	coverage 	under
57

this 	chapter would 	further the purposes 	of
this 	chapter.
In a 	thorough 	and well-reasoned proposed decision,1 the
administrative 	law 	judge 	(ALJ) 	concluded that graduate 	student
researchers 	in the disputed classifications 	(GSRs) 	were not
"employees" 	within the meaning of 	subdivision 	(f), 	while he found
that graduate 	student instructors 	(GSIs) 	in the disputed
classifications were 	"employees." 	The ALJ's 	analysis 	is 	not 	only
true to 	the 	interpretation of 	subdivision 	(f) 	set out by the
California Supreme Court 	in Regents. 	but also 	implicitly
- -
recognizes 	that 	the 	language 	of 	the 	statute 	clearly reflects 	the
Legislature's 	intent 	that 	some 	student 	employees would be 	covered
and 	some would not. 	As will be 	explained later, 	the majority's
analysis 	effectively precludes 	the 	coverage 	of 	any group 	of
student 	employees.
In Regents, 	the court 	concluded that 	subdivision 	(f)
-
represents 	a 	compromise 	between the 	majority and dissenting
opinions 	expressed 	in 	seminal 	National 	Labor Relations 	Board
(NLRB) 	cases. 	(Cedars-Sinai Medical Center 	(1976) 	223 NLRB 251
[91 	LRRM 	13981: 	St. 	Clare's Hospital and Health Center 	(1977) 	229
NLRB 	1000 	[95 	LRRM 	1180].) 	The NLRB has 	adopted a 	"primary
purpose" 	test, 	in which the central 	focus 	is on the 	student
employees' 	motivation for performing the 	services 	at 	issue.
Thus, 	the NLRB has 	found that housestaff are not 	"employees"
1The ALJ's proposed decision can be 	found at 	11 	PERC 	18054.
It 	is 	a good example of a thoughtful, 	fair and impartial
decision.
58

because 	their primary motivation 	in 	entering a 	housestaff 	program
is 	educational 	rather than economic. 	The dissenting view of
Member 	Fanning 	focused 	instead 	on 	the 	services 	actually
performed and 	found the 	students' 	subjective motivation
irrelevant. 	The 	court 	in Regent
- - s 	found that the 	language of
subdivision 	(f) 	reflects 	the California Legislature's 	intent to
combine 	the NLRB's 	majority and minority 	approaches: 	"HEERA took
a middle 	road, 	requiring both 	factors 	to be 	considered."
(Regents, 	supra. 	41 Cal.3d at p. 	615.)
Thus, 	Regents 	instructs that the student employees'
educational objectives, 	or primary purpose, 	must be weighed
against the 	services provided. 	If 	the 	former are 	subordinate to
the 	latter, 	PERB may 	find that 	such 	individuals 	are 	covered by
HEERA. 	While admittedly not 	easy to apply, 	this 	test 	is
relatively 	straightforward. 	While 	the 	facts 	surrounding 	the
employment 	of 	GSIs 	and GSRs 	are very different 	than those
surrounding housestaff, 	the basic 	analytical 	framework remains
the 	same. 	Yet, 	the majority immediately goes 	awry 	in its
analysis 	by 	claiming that 	a 	different 	factual 	scenario 	requires
further interpretation of 	subdivision 	(f): 	"As 	the 	facts 	in our
case are distinguishable from Regents, 	the Board must 	. 	. 	.
- -
further 	interpret 	subdivision 	(f) 	and the 	court's 	application of
that provision in Regents." 	(Majority decision, 	at p. 	36.) 	This
-
is where 	the majority begins 	to 	reveal 	its 	thinly veiled
disagreement with 	the 	Regents 	decision and 	its 	consequent 	refusal
-
to 	apply 	it 	to the 	instant 	case without 	first 	twisting 	it beyond
59

recognition. 	The majority's 	antipathy toward the 	result 	in
Regents 	is 	apparent 	given 	its 	penchant 	for citing approvingly the
dissenting opinion in that case 	(see majority opinion at pp. 	33,
44) .
The 	following passages 	epitomize 	the 	majority's 	analytical
sleight of hand. 	At pp. 	37-38, 	the majority states:
The California 	Supreme Court 	notes 	that:
"The 	Legislature has 	clearly 	not 	instructed
PERB to 	confine 	its 	inquiry to the 	students'
state of mind." 	(Emphasis 	in original.) 	We
agree 	that 	in ascertaining 	"educational
objectives," 	we 	cannot confine ourselves 	to
looking 	solely at 	subjective 	opinions.
Having purportedly 	justified 	its 	diversion 	away 	from 	the
subjective views 	of 	the 	student 	employees,22 the majority goes 	on
to state, at p. 	39:
The 	issue 	in this 	case 	is how the academic
considerations of student, 	faculty, 	and
administration are 	to 	be weighed 	against 	the
kind of 	services 	the 	student 	is performing
2The majority's 	criticism of 	the use of 	subjective views 	of
witnesses 	in determining 	educational 	objectives 	is 	not without
some validity. 	That 	is 	one reason why the NLRB has 	been 	so
heavily 	criticized 	for 	its 	housestaff decisions. 	Nevertheless,
the 	use 	of 	such a 	subjective 	factor 	in determining the 	status 	of
student 	employees 	is 	not only widespread 	in other 	jurisdictions,
but we 	are 	bound by the 	Legislature's 	command 	that 	"their 	[the
student 	employees'] 	educational objectives" 	be one of the two
main 	factors 	to be weighed.
The majority's 	argument 	that 	the use 	of 	subjective 	criteria
would, 	if taken to the extreme, 	require that each employee be
questioned as 	to his 	or her educational 	objectives 	in order to
determine 	if 	he or 	she 	is 	covered by HEERA is 	grossly overstated
(majority opinion, 	fn. 	17). 	No court or board which has applied
some 	form of 	the primary purpose 	test has 	had any difficulty
recognizing that 	the 	test 	is 	applied 	in order to determine 	the
primary purpose 	(or educational objectives) 	of the 	student
employee classification a_s. a whole.
60

within the 	context of 	the 	University's 	entire
graduate 	student program.
First of all, 	the majority's 	quotation from Regents 	is 	taken
- -
out of 	context. 	The 	court's 	statement that the 	inquiry 	is 	not
limited to the 	students' 	state of mind 	is 	merely a prelude to 	its
notation that 	the 	services 	actually performed must 	also 	be
considered 	(see Regents, 	supra, 	41 Cal.3d at p. 	614). 	The court
was 	not, 	as 	implied by the majority, 	expanding the inquiry into
educational 	objectives 	beyond 	the parameters 	of 	the primary
purpose 	test as 	established by the NLRB. 	The 	two 	sentences 	which
directly 	follow the 	passage 	quoted 	by 	the 	majority 	demonstrate
vividly 	the majority's 	error:
Moreover, 	nothing in the language of
subdivision 	(f) 	even hints 	that the
University's 	subjective perceptions 	of 	the
functions 	of housestaff 	duties 	should be
taken 	into 	consideration.
The 	Legislature 	has 	instructed 	PERB 	to 	look not
only at the students' 	goals, 	but also at the
services 	they actually perform, 	to 	see 	if 	the
students' 	educational objectives, 	however
personally important, 	are nonetheless
subordinate to 	the 	services 	they are 	required
to perform.
(Emphasis in original.) 	(41 Cal.3d at p. 	614.) 	Thus, 	the
majority 	has 	ignored 	the 	clear 	command of 	the 	California 	Supreme
Court 	by 	considering 	the 	University's 	subjective 	view of 	the
students' 	educational objectives. 	Moreover, 	as will be explained
more 	fully 	below 	in 	discussing 	GSIs, 	the 	majority 	has focused
primarily on the 	University's 	subjective 	views 	and has 	given
61

little weight to those of the 	student employees. 	This 	flawed
view of 	Regents pervades 	the majority's 	analysis.	. ..
---
Another major 	analytical 	flaw the 	majority 	exploits 	on 	its
march to 	its 	desired result 	is 	its 	definition of 	"educational
objectives." 	While 	recognizing 	that 	employment 	in the disputed
classifications 	is 	of educational value, 	the ALJ correctly
concluded that 	the 	completion of degree 	requirements 	and, 	in
particular, 	the dissertation, 	was 	the primary educational
objective of those enrolled in doctorate 	(Ph.D.) 	programs. 	It 	is
important to remember that the Ph.D. 	is 	a research degree and the
dissertation is 	the necessary focus of each Ph.D. 	candidate. 	As
the majority states, 	at p. 	5:
The Ph.D. 	is primarily a research degree.
The Ph.D. 	program trains 	graduate 	students 	in
how to 	conceptualize research, 	develop a
research problem, 	carry out the 	research
project, 	and present the results of the
extensive 	research 	in a dissertation.
The 	majority adopts 	a 	definition of 	educational 	objectives
that 	is 	so broad 	that 	nearly 	any 	endeavor 	even remotely 	related
to an academic discipline would be included. 	That, 	in itself, 	is
not 	analytically 	incorrect 	as 	long as 	the primacy of 	degree
requirements 	is 	recognized within a 	hierarchy 	of 	"educational
objectives." 	However, 	the majority 	instead emphasizes 	the
purported value 	of 	more 	attenuated 	educational 	benefits 	and
attributes 	little 	importance to degree requirements. 	This
misdirected emphasis, 	as well as 	its 	importance to the majority's
62

analysis, 	is 	reflected by the 	following passage 	from p. 	37 	of the
majority 	decision:
. 	. 	. 	we believe that the term 	"educational
objectives" 	encompasses 	more than just the
desire to get a degree, 	and even more than
career goals. 	Therefore, 	we reject the ALJ's
conclusion 	that 	GSIs 	and 	selected GSRs 	are
entitled 	to 	collective 	bargaining 	under
HEERA.
Before 	applying 	the proper 	statutory 	test 	to 	the disputed
classifications, 	I believe a 	few reflections on the Regents
- -
decision are 	in order. 	At 	first glance, 	the instant 	case appears
to be a more difficult one. 	After all, 	in Regents 	the evidence
- -
in 	support 	of 	the 	service 	side 	of 	the balancing test was 	very
strong. 	80-100 	hour weeks 	serving 	ever-changing patient 	needs
with 	little 	supervision weighed 	heavily 	against 	the 	notion 	that
educational 	objectives 	predominated.
On the 	other hand, 	housestaff 	have 	an obvious 	and vital
educational 	objective because participation 	in a 	residency
program 	is 	a 	requirement 	for both 	the 	right 	to practice medicine
and 	certification 	in a 	specialty. 	At 	first glance 	it may appear
that 	if 	anybody 	is 	an 	"employee," 	a member of the housestaff
surely is. 	However, 	in reality, 	that case was more difficult
because 	the 	evidence 	in 	support 	of both prongs 	of 	the 	statutory
balancing test was 	strong. 	In contrast, 	the instant case does
not present 	such weighty evidence on both 	sides 	of 	the 	equation.
In fact, 	a 	comparison to the Regents 	case virtually dictates 	the
- -
result herein. 	As 	discussed below, 	that result 	is 	very different
depending on whether GSIs 	or GSRs 	are at 	issue.
63

Application of 	the 	Proper 	Test
GSRS
As 	noted above, 	I 	concur that GSRs 	are not covered by HEERA.
However, 	I would employ the analysis 	outlined above, 	which is
truer to both Regents 	and the 	language of 	subdivision 	(f) 	than is
- -
the majority's analysis. 	In other words, 	the result is not
preordained.
Turning first to the 	educational 	objectives 	of 	the GSRs,
there 	is 	one 	characteristic 	of 	the work in these 	classifications
which I 	believe 	is 	key. 	The vast majority of GSRs 	are 	either
working 	on a 	research project 	that 	is 	directly related 	to 	their
dissertation topics 	or 	they are doing 	research 	in their 	general
field of 	study 	in exploration of 	a dissertation topic. 	Even
where 	the 	research 	job turns 	out to be unrelated to 	the 	eventual
dissertation topic 	(which 	also 	may 	change 	based upon 	research
experiences), 	the GSRs are developing research skills 	that will
enable 	them 	to 	successfully pursue 	their 	dissertation 	research.
As 	the ALJ 	succinctly 	explained:
As 	the 	findings 	have 	expressed, 	the doctoral
candidate's 	research 	endeavor 	cannot 	be
depicted as 	a 	single 	concrete undertaking of
research pursuant 	to 	a prescribed 	topic.
Rather, 	there 	is 	exploration into areas under
the direction of 	the 	research 	advisor until
both 	the 	graduate 	student 	and 	the 	advisor 	are
satisfied 	of 	the 	feasibility 	and worthiness
of 	the research topic. 	That approach to
ascertaining a 	topic 	must 	entail
circumstances, 	such as presented by Friedman
and Wurl, 	where time is 	spent by the graduate
student as 	a research assistant 	in
identifying, 	pursuing, 	or changing topics 	for
a 	dissertation 	subject.
64

(Proposed dec. 	11 PERC at p. 	304.)
Thus, for the vast majority of the GSRs, 	their educational
objectives 	are 	heavily 	intertwined with 	their paid 	research 	work.
Unlike the 	situation in Regents, 	the work is 	not only a 	formal
- -
requirement of the educational program, 	but part and parcel 	of
it.3 This 	is 	further demonstrated by the 	fact that graduate
students 	often perform 	indistinguishable 	tasks, 	whether or not
they are 	in the disputed classifications. 	For example, 	within
any 	research group 	there may be 	one 	or more 	graduate 	students 	who
perform 	their 	research 	in a paid 	status 	through 	one 	of 	the
disputed classifications, 	while there are others 	in the group who
are 	not paid because 	they are recipients 	of 	grants 	or
fellowships. 	Having concluded that GSRs' 	educational 	objectives
are 	normally a 	central 	aspect of 	their work 	in the disputed
classifications, 	I now turn to the services themselves, 	as
required by subdivision 	(f).
It 	is 	undisputed that the 	University's 	research mission 	is
furthered by the work of GSRs. 	While 	the 	contribution of 	the
GSRs 	is 	substantial, 	as the ALJ pointed out, 	it is not readily
susceptible 	to measurement as 	are 	the 	contributions 	of 	the
housestaff 	in Regents or of the GSIs 	in the 	instant case.
Moreover, 	the evidence supports 	the University's position that
outside 	funding 	agencies 	(which 	fund much 	of 	the 	University's
3While 	service 	in one of 	the disputed classifications 	is 	not
formally a degree 	requirement, 	the 	research activity 	itself 	is
necessary to 	the 	completion of 	the 	dissertation.
65

research) 	are 	not 	securing a pre-described product 	from the
University, 	but 	rather are 	funding research primarily 	for the
expansion of knowledge 	in particular areas. 	Additionally, 	the
ALJ 	noted 	that various 	federal 	grant descriptions 	introduced 	into
evidence 	include 	explicit 	acknowledgment by 	the 	federal 	funding
agencies 	that 	research training of 	graduate 	students 	is 	a product
of the funding. 	Thus, 	unlike housestaff 	(or GSIs 	for that
matter), 	GSRs 	are for the most part not fulfilling quantifiable
service 	obligations 	on behalf 	of 	the 	University.
GSRs 	also differ from housestaff 	in the amount 	of
supervision they receive. 	While 	the 	record reflects 	that the
amount of 	supervision varies with the research project, 	research
advisor and previous 	research experience of the GSR, 	it 	is 	clear
that 	GSRs 	receive more 	supervision than did 	the 	housestaff 	in
Regents. 	Though the majority errs 	by 	lumping the GSIs with 	the
GSRs, 	GSRs 	and their faculty research advisors do have the kind
of 	mentor 	relationship 	that 	militates 	against 	characterizing 	the
work of 	a typical GSR as 	a 	"job."
---	-
In addition, 	though GSRs, 	like housestaff, 	often put in long
hours 	(up to 80 hours a week), 	this 	superficial similarity
actually 	reflects 	a profound distinction between the 	two 	kinds 	of
services. 	While housestaff put 	in the 	long hours 	because 	it 	is
required 	both 	by 	the 	residency program 	and 	by the 	unpredictable
demands 	of patient care, 	the evidence reveals that GSRs
voluntarily put 	in 	such hours 	in order to 	fulfill 	their personal
66

goals 	in the 	furtherance of the research project. 	As 	the ALJ
observed:
The nature of the service, 	unlike that of
residents 	in Regents. 	or graduate 	student
instructors 	i- -	n this case, 	is reflective more
of the 	individual 	student's pursuit of
his/her 	own research project 	and 	not
reflective of 	a 	20-hour-per-week 	job. 	The
hours 	served - up to 80 hours a week - are a
result 	of 	the graduate 	student's 	interest 	in
completing the research. 	Graduate 	students
who 	are 	not within the disputed
classifications 	devote 	the 	same 	number of
hours 	towards 	the research as 	the 	students
who receive this 	financial 	support. 	Very-
little 	evidence 	suggests 	that 	those hours 	are
delivered because 	of 	the principal
investigator's 	grant timelines.
(Proposed d e c , 	11 PERC at p. 	303.)
In sum, 	I 	have 	found that the 	educational objectives 	of GSRs
are 	significant, 	if 	not central 	to their entry into the disputed
research classifications. 	Moreover, 	I 	have concluded that the
nature 	of 	the 	services provided make 	it difficult 	to 	characterize
these positions 	as 	"jobs" 	in the normal 	sense of that term. 	In
any event, 	I 	do not believe the 	services provided compare at all
to those 	involved in Regents 	(or with the 	services 	of GSIs).
- -
Consequently, 	I 	cannot conclude that the GSRs' 	educational
objectives 	are 	subordinate 	to 	the 	services provided and 	I 	would,
therefore, 	exclude them from coverage of HEERA in accordance with
subdivision (f).
As 	is necessary in applying subdivision 	(f), 	I have made
several 	generalizations 	in characterizing the GSR
classifications. 	While those generalizations are, 	I believe,
67

accurate with regard to the vast majority of GSRs, 	some
particular positions 	do 	not 	fit 	neatly 	into 	that description.
Nevertheless, 	a 	system whereby each 	individual 	appointment 	is
examined to 	see 	if 	the work 	involved qualifies 	the 	incumbent 	for
employee 	status 	is unworkable. 	Though a 	small percentage of
GSRs, 	if viewed in isolation, 	would meet the 	statutory test 	for
coverage, 	it is 	necessary to 	"paint with a broad brush" 	so that
there 	is 	some predictability and certainty to 	the parameters 	of 	a
bargaining unit. 	For that reason, 	I would reverse the ALJ's
decision to 	carve 	out those research assistants who have been
found to 	be 	doing work unrelated 	to 	their 	educational 	objectives.
The ALJ 	concluded 	that 	it would be 	appropriate 	to 	split 	the
research 	assistant 	classification 	so as 	to provide 	coverage 	to
those whose work was 	found 	to 	be 	unrelated 	to 	their 	educational
objectives. 	The ALJ 	found that these 	individuals 	could be
described as 	those who are 	(1) 	assigned the position for less
than a year, 	(2) 	are paid hourly and on the basis 	of hours
actually worked, 	and 	(3) 	receive no academic 	recognition for 	such
work.
From my reading of the record, 	I 	am not as 	confident as 	the
ALJ that 	these people can be 	easily 	identified. 	The 	record 	shows
a 	great 	variety of practices 	among 	the 	various 	departments 	with
regard to employment of GSRs. 	After reviewing the record, 	I 	am
simply not 	convinced that 	the 	employment 	characteristics 	listed
by the ALJ will, 	in practice, 	accurately identify all those, 	and
only those, 	whose work is unrelated to their educational
68

objectives. 	Inevitably, 	I am afraid, 	their inclusion or
exclusion from the unit will 	be 	the 	subject 	of 	constant dispute
between the parties. 	Such a magnet 	for dispute 	cannot but
interfere with HEERA's 	stated goal 	of 	the development 	of
harmonious 	and cooperative 	labor relations 	(see 	HEERA 	section
3560).4 For that reason, 	I would not split the class and would
exclude 	all 	research assistants.
GSIs
The 	evidence 	concerning GSIs 	differs 	in many 	critical
respects 	from that concerning GSRs. 	These differences 	are 	so
significant 	that 	they 	compel 	the 	conclusion that 	GSIs 	are 	covered
by 	HEERA. 	The majority 	ignores 	these differences 	and 	repeatedly
makes 	broad assertions 	applying to 	all 	the disputed
classifications, 	when in fact they apply only to GSRs. 	I will
first outline what 	I 	believe 	to be the critical 	evidence with
respect to GSIs, 	then I will detail the majority's many
misstatements 	of 	the 	record.
4I 	note that 	subdivision 	(f) 	is not cast in mandatory terms;
therefore, 	I 	believe 	it is 	appropriate to consider the purposes
of 	the Act 	even where the work 	is 	found 	to be unrelated 	to
educational 	objectives.
5While 	I 	find the majority's 	discussion of why 	inclusion of
GSRs 	in general would not 	effectuate the purposes 	of 	the Act 	to
be vastly overstated, 	I 	do 	find 	some merit 	in the discussion of
the 	potential 	interference with 	the 	mentor relationship 	between
research advisors 	and GSRs. 	The 	entanglement of the research
work with 	the 	graduate 	students' 	dissertation work 	is 	another
reason why 	it might be 	inappropriate 	to 	include GSRs.
Nevertheless, 	I do not rely on these additional arguments 	in
deciding to 	exclude 	the GSRs 	the ALJ had 	carved out 	for 	coverage,
because 	those 	factors 	are 	of 	little or no 	relevance with regard
to 	those whose work 	is unrelated to 	their educational 	objectives.
69

With regard to 	educational objectives, 	the 	critical
distinction between GSIs 	and GSRs 	is 	that 	the work of 	the GSIs 	is
(with the exception of a 	small percentage of departments) 	not
related 	to 	their dissertations 	or 	other required degree work.
The 	16 	departments 	that 	require 	some 	teaching 	experience 	require
only 2 	or 3 	semesters, 	while the evidence 	shows that many GSIs 	in
those departments 	teach 	in excess 	of 	that requirement. 	The GSIs
themselves 	consistently 	testified 	that 	they 	sought 	the 	teaching
positions primarily for economic reasons. 	In short, 	they needed
the money to 	support 	themselves 	so 	that 	they could 	remain 	in
school. 	If the teaching positions were not available, 	they would
instead have 	to 	seek 	employment 	elsewhere.
Moreover, 	the 	testimony revealed that most 	students 	would
not 	teach 	(or would teach very 	little) 	if not 	for economic
considerations 	and would 	instead use 	the 	extra 	time 	to work on
their dissertations. 	The record reflects 	that those with other
sources of income 	(grants, 	fellowships, 	savings, 	support from
parents, 	etc.) 	do not often seek GSI positions. 	Testimony also
consistently revealed that, 	though the GSIs 	saw 	some 	educational
benefit 	in the 	teaching positions, 	they 	found that the work
sometimes 	interfered with 	their dissertation work, 	which 	is
clearly the educational 	focus 	of anyone 	seeking a Ph.D. 	In
addition, 	the value of the teaching experience 	from the graduate
students' 	perspective was 	restricted to the teaching experience
itself, 	because the 	subject matter was 	inevitably basic 	in nature
and had 	already been mastered by that point 	in their 	academic
70

careers. 	The 	level 	of knowledge 	involved in their dissertation
research was 	by definition 	far more 	advanced 	than 	the 	material
they were required to teach as 	GSIs.
I 	feel 	it 	important to note at this point 	in my discussion
that 	it 	is 	beyond dispute 	that being exposed to 	teaching 	furthers
the 	educational 	goals 	of 	those 	graduate 	students who 	seek careers
in academia. 	That, 	of course, 	does not end the analysis. 	First,
it must be remembered that the Ph.D. 	is 	a research degree and
that 	the dissertation is 	the 	educational 	focus 	of 	every Ph.D.
candidate. 	Those who testified that 	they 	seek academic 	careers
almost 	universally aspire to 	a professorial position at 	a
research 	institution like 	the 	University of 	California, 	Berkeley.
This 	is 	consistent with 	University 	testimony that 	the 	departments
seek to 	groom their graduates 	for 	such positions.
While 	the 	emphasis 	on research as 	opposed to 	teaching at
such 	institutions 	is 	the 	subject of 	some 	criticism, 	the record
clearly 	establishes 	that 	the 	subject 	and 	quality of 	a 	graduate
student's 	research 	is 	by 	far the most 	important measure 	of 	future
employability. 	The 	evidence 	established that, 	though
universities 	are 	not 	disinterested 	in 	teaching 	experience
(particularly 	if 	the 	student had 	complete 	responsibility 	for
teaching the course, 	which few GSIs have), 	their primary concern
is 	the dissertation research. 	And once hired, 	it is 	the
professors' 	continued research which is 	the major factor 	in their
career advancement.
71

While 	the educational value of the GSI 	positions 	cannot be
•denied, 	it 	simply pales 	in comparison to the dissertation and
other required degree work 	in terms 	of 	the 	students' 	educational
objectives. 	The evidence 	is 	overwhelming that the 	students'
motivation in taking these positions 	is primarily economic. 	To
them, 	it 	is 	a 	job. 	These 	jobs do have the added benefit of
providing 	some 	relevant 	training 	(as 	would 	any 	job 	related to 	the
subject matter of their field of 	study), 	but also have the
convenience of being on campus 	and half-time 	(obviously, 	full-
time work would make 	degree progress 	very difficult 	and 	off-
campus half-time work is 	certainly not readily available).
When properly focussing on the 	students' 	objectives, 	and
recognizing 	that 	in accordance with 	Regents 	the 	first prong 	of
the 	required balancing test 	is 	akin to 	the 	NLRB's 	primary purpose
test, 	it 	is 	abundantly clear that the evidence 	in 	favor of 	the
predominance of 	educational 	objectives 	is weak. 	In comparison,
the evidence of educational objectives 	in Regents. 	where
- -.
housestaff were 	found to be covered, 	was 	stronger 	in two
fundamental respects. 	One, 	the residency program was required,
whereas 	GSI positions are normally voluntary. 	Two, 	the 	services
provided by housestaff were 	more directly 	related 	to 	their 	future
careers 	as doctors 	than the 	services provided by GSIs. 	Not all
GSIs will 	seek academic positions 	that will require teaching, 	and
of those who do, 	for most, 	their research will be the focus 	of
their careers.
72

Since the students' 	primary purpose is not educational, 	but
economic, 	it 	is questionable whether it 	is 	even necessary to
address 	the 	services 	side 	of 	the 	equation before 	concluding 	that
GSIs 	meet 	the 	statutory test 	for 	inclusion under HEERA 	(subject
to considerations of 	effectuating the purposes 	of the Act).
Nevertheless, 	I 	now turn to the 	services performed.
There 	is 	no dispute that the 	contribution of GSIs 	to
undergraduate teaching 	is 	substantial. 	As 	the majority notes,
GSIs 	are 	responsible 	for 	58 	percent 	of 	the 	lower division class
meetings 	and are 	also 	involved 	in the 	teaching of 	some upper
division courses. 	While the majority makes 	a point of 	stating
that 	the 	University 	could 	instead hire 	nonstudent 	instructors, 	I
fail 	to 	see what particular relevance that has. 	The 	fact is 	that
the 	University has 	structured 	its 	provision of 	undergraduate
teaching to 	rely heavily on GSIs 	and the 	testimony of both
Association of Graduate 	Student Employees 	(AGSE) 	and 	University
witnesses 	confirms 	that 	a 	major restructuring of 	the 	University's
undergraduate program would be 	necessary 	if 	GSIs 	were 	no 	longer
utilized. 	Thus, 	as now structured, 	GSIs are critical to the
fulfillment 	of 	the 	University's 	undergraduate 	teaching mission.
As 	the ALJ noted, 	the Graduate 	Division dean's 	introduction to
the 	Handbook on Teaching 	acknowledges 	that 	undergraduates 	have
more 	contact with GSIs 	than with regular 	faculty 	and 	states 	that
teaching assistants 	are 	the 	"single most 	important 	link the
undergraduates 	have to Berkeley 	in the 	first years."
73

The 	critical 	nature 	of 	the GSIs 	contribution to
undergraduate 	teaching 	is 	not unlike 	that 	of 	the housestaff's
contribution to patient 	services. 	Both provide a 	significant
amount 	of 	the 	services 	required 	to 	be provided by 	the
institution, 	with little 	supervision. 	While housestaff work many
more hours 	than do GSIs, 	as the ALJ astutely observed, 	when
comparing hours 	one must 	consider the nature of 	the 	underlying
mission. 	Housestaff 	are 	contributing to 	the operation of
hospitals where patient care 	is provided 	24 	hours 	a day 	7 	days 	a
week. 	The 	teaching mission of 	the 	University 	in this 	case does
not 	involve 	such hours 	of 	coverage. 	Thus, 	measured against that
educational mission 	(or, 	in other words, 	once the 	scale is
recalibrated), 	the contribution of GSIs 	is 	comparable to that of
housestaff.
In 	sum, 	when the proper test 	is used and the relevant
factors 	considered, 	the 	educational 	objectives 	of GSIs 	in their
work 	in the disputed 	classifications 	are 	of 	lesser magnitude 	than
those 	found 	in Regents	,·,--- ----·. 	and 	certainly pale 	in comparison to 	those
of GSRs'. 	When viewed in terms of the GSIs' 	primary motivation,
it 	is 	clear that economic considerations 	control. 	This, 	coupled
with 	the 	undisputed 	evidence 	of 	the 	vital 	contribution GSIs 	make
to 	the provision of undergraduate 	education, 	makes 	it rather easy
to 	conclude 	that the 	educational 	objectives 	of 	the 	GSIs 	are
subordinate to the 	services they perform. 	In fact, 	a comparison
of 	the 	findings 	in Regents with the 	evidence 	in this 	case 	compels
-
74

the conclusion that, 	if housestaff are covered by HEERA, 	then
GSIs must be as well.
Before 	addressing 	the 	issue 	of whether 	inclusion of 	GSIs
would effectuate the purposes 	of HEERA, 	I will 	comment on the
factors 	the majority has 	relied on 	in excluding GSIs. 	In my
discussion above, 	I 	have addressed only the key factors 	that 	I
consider to be dispositive. 	In examining the majority's 	view of
the record, 	I will discuss 	how various 	other factors 	either 	fail
to 	support 	the majority's 	view or 	in fact 	support mine.
The Majority's View of 	the 	Record
In 	concluding that the 	educational 	objectives 	of 	GSIs
predominate 	over the 	services 	provided, 	the majority relies 	on
the 	following major findings: 	(1) 	the educational objectives 	(of
the students, 	faculty and administration) 	are substantial; 	(2)
GSIs 	are 	closely 	supervised 	by 	faculty members 	with whom 	they
have a mentor relationship; 	(3) 	the indicia of 	student 	status
outweigh the 	indicia of 	employee 	status; 	(4) 	the money paid to
GSIs 	is 	really a 	stipend or a 	form of 	financial 	aid, 	and not 	a
salary; 	and 	(5) 	when there is a conflict, 	academic 	interests
ultimately prevail over employment 	interests. 	I will 	address
each in order.
As 	discussed 	above, 	the 	majority 	improperly 	focuses 	on 	the
University's 	subjective view of 	the 	educational 	objectives 	of
GSIs 	rather 	than putting 	the 	required 	emphasis 	on the 	views 	of
the GSIs. 	I 	have also previously pointed out the danger of
applying 	the 	majority's 	expansive 	definition of 	educational
75

objectives 	without 	recognizing the 	relative 	importance 	of
different objectives. 	After noting briefly that most 	of 	the GSIs
testified 	that 	their teaching work was 	of 	little 	value 	to 	them
and 	in 	fact 	interfered with their dissertation work, 	the majority
then goes on to recount, 	at length, 	the testimony of University
witnesses who 	extolled the virtues 	of the GSI 	experience. 	Thus,
rather than giving 	credence to 	the GSIs' 	testimony 	concerning
their main 	educational 	and 	career 	goals 	(in which 	teaching was 	a
small part), 	the majority instead relies on others' 	opinions of
the value of the GSI 	experience.
The majority 	summarized the non-GSI 	testimony at p. 	20:
Many 	of 	the professors who 	testified 	extolled
the benefits 	of the GSI 	experience 	in terms
of 	its 	being a valuable 	tool 	of preparation
for initially, 	the oral qualifying
examinations and, 	later, 	the oral defense of
the dissertation. 	By teaching a course, 	the
GSIs 	not 	only come 	away with a 	firmer
understanding of 	the basic 	course materials,
but 	also with 	an 	increased 	ability to 	think
on their feet, 	organize their thoughts, 	and
communicate clearly and 	effectively, 	all
skills 	befitting a 	scholar no matter what
career path is 	taken.
This 	testimony not 	only 	fails 	to reflect 	objectives 	of 	the GSIs	
----·,
but 	merely 	concerns 	the 	kind of 	peripheral 	benefits 	that 	accrue
from any 	expressive 	activity. 	The 	only benefit 	of 	any
significance 	is 	the 	exposure to teaching. 	While that benefit 	is
undeniable, 	the record clearly reflects 	that that 	is 	not what
76

- -
usually motivates 	students 	to 	take GSI 	positions.6 Therefore,
under the analysis 	of Regents, 	it cannot be given great weight.
The 	majority makes 	much of 	the mentor relationship 	that
purportedly arises 	in the 	supervision of 	GSIs 	by 	faculty members.
This 	is 	a 	classic 	example of 	the majority's habit of 	attributing
to 	all 	classifications 	characteristics 	that 	apply only to GSRs.
GSRs, 	it 	is 	true, 	have a close working relationship with their
research 	advisor and/or principal 	investigator that 	can be 	fairly
termed a mentor relationship. 	The 	supervision of 	GSIs 	by 	faculty
is, 	however, 	of a very different nature.
The 	supervision of GSIs 	varies, 	depending on the 	faculty
member and the course. 	In a 	few cases, 	weekly meetings 	are held
where 	the professor and the GSIs 	discuss 	the progress 	of 	the
course. 	In other cases, 	no meetings 	are held except for an
initial 	orientation meeting at 	the beginning of 	the 	term. 	In
most 	instances, 	the 	interactions between GSIs 	and 	faculty arise
in response 	to 	a particular problem or 	issue that may
surface during the term. 	Some 	faculty members will 	also 	sit 	in
on a GSIs 	discussion or 	lab 	section if 	invited to do 	so. 	GSIs
who 	teach 	language 	courses 	are 	provided with 	standard 	course
materials, 	but are otherwise 	fully responsible 	for the teaching
of the course, 	with essentially no 	supervision. 	It 	is 	also
important 	to 	note 	that 	teaching associates 	and teaching 	fellows,
6The predominance of 	research over teaching, 	both 	in the
graduate 	students' 	pursuit of a Ph.D. 	and in their pursuit and
furtherance of academic 	careers, 	is 	discussed above 	in my
analysis 	of the 	educational 	objectives 	of GSIs.
77

as 	opposed to teaching assistants, 	are often responsible 	for an
entire course, 	including both 	its 	instruction and 	its
content. 	These GSIs 	also receive 	little or no 	supervision.
Unlike GSRs, 	whose paid research 	is 	often coextensive 	or
related to 	their dissertation work, 	GSIs 	are merely aiding 	in the
instruction of material which 	is 	to 	them very basic 	(and 	in most
cases, 	long since mastered). 	Their supervisor is not their
research advisor 	(nor a pedagogical analog), 	but 	simply the
faculty member who has 	overall 	responsibility 	for the 	course.
The 	evidence clearly demonstrates 	that the 	faculty's, 	as well 	as
the University's, 	primary aim in the use of GSIs 	is 	the provision
of undergraduate education, 	not the training of 	graduate
students. 	To 	say that the 	infrequent contacts 	between GSIs 	and
faculty, 	which do not often directly touch on the development 	of
the GSIs' 	teaching prowess, 	create a 	"mentor" 	relationship is a
gross 	mischaracterization of 	the record. 	In reality, 	faculty
members' 	relationship to GSIs 	is much more akin to that of a
supervisor 	and 	an 	employee.
The 	majority also puts 	great 	emphasis 	on the 	indicia 	of
student 	status 	in the present 	case that were not present 	in
Regents. 	While 	it 	is 	true that 	in Regents 	indicia of 	student
- -
status were mostly lacking, 	that was 	an unusual 	case 	in the
context of subdivision (f). 	Subdivision (f), by its terms, 	only
applies to students. 	Therefore, 	in the typical case there will,
by definition, 	be 	substantial 	indicia of 	student 	status. 	That,
in itself, 	is 	not very probative of the issue at hand. 	As 	in
78

most cases 	arising under subdivision 	(f), 	there are also
significant 	indicia 	of 	employment.
GSIs 	fill 	out 	the 	same 	array of 	employment 	forms 	as 	other
employees. 	Like other employees, 	their salaries 	are administered
by the 	administration's 	payroll 	office 	(and not 	through the
financial aid office, 	as are true sources of financial aid).
They 	are 	also 	covered by 	the 	grievance procedure 	applicable 	to
other 	employees 	(though there 	is 	evidence 	that the University has
mistakenly 	routed 	some 	grievances 	through the 	Dean of 	the
Graduate Division).
Appointments 	are limited to half-time, 	but unlike the
majority 	I 	find little or no 	significance 	in this 	fact. 	While
the limit is designed, 	in part, 	to accommodate graduate 	students'
need to 	also complete their degree work, 	this 	again is 	the type
of 	characteristic 	that is a virtual given under subdivision 	(f),
which applies 	only to 	"student 	employees whose 	employment 	is
contingent on their status as 	students." 	Moreover, 	the evidence
also 	shows 	that the half-time 	limit 	is 	also motivated by the 	fact
that 	those who work more 	than half-time 	cannot be 	counted 	as
full-time 	students 	(which has 	an impact on state funding).
Similarly, 	the University's 	four-year limit on GSI 	services 	is 	of
no 	great 	significance. 	Not 	only are 	such 	limits 	commonplace
among non-tenured academic 	employees, 	but 	readers 	and 	tutors 	are
subject to the 	same rule; 	yet, 	the University has 	conceded that
they 	are 	covered by HEERA.
79

While 	GSRs 	normally 	receive 	residency units7 for 	their paid
research, 	GSIs 	receive 	that 	credit 	only where 	fulfilling 	the
teaching requirement 	(in one of the 	16 	departments 	that require
some 	teaching) 	or 	for taking the pedagogy 	course offered by 	some
departments. 	Thus, 	as a general rule, 	GSIs receive no unit
credit 	for their 	services. 	While the 	University's 	layoff policy
does 	not apply to GSIs, 	ostensibly because academic
considerations 	are viewed as 	taking precedence, 	it 	is 	also true
that GSI 	appointments 	are made on a 	limited-term basis, 	which
would make 	"layoffs" 	inapplicable 	anyway 	(the 	University may
instead 	simply not reappoint the GSI).
-
GSIs 	do not 	receive the 	same 	array of benefits 	as 	do 	other
employees. 	They are 	not provided health benefits 	(they already
receive 	limited coverage through their status 	as 	students),
vacation, 	sick leave, 	retirement benefits, 	short-term disability
insurance or life 	insurance. 	It 	is 	not clear from the record 	if
this 	is 	true only of the disputed classifications, 	or is 	also
typical 	of 	other part-time 	or 	limited-term appointments.
Moreover, 	this 	is 	an issue on which the GSIs may appropriately
seek to 	bargain.
The 	majority 	concludes 	that 	the 	salary 	received by GSIs 	is
really 	just a 	stipend 	(or a form of 	financial aid). 	This
characterization is 	used as 	a buzzword throughout 	the majority
7Residency units 	count 	only toward 	the 	12-unit 	requirement
for 	full-time 	student 	status 	and do 	not 	count 	toward degree
requirements.
80

opinion in an attempt to bolster the analysis. 	The majority
bases 	its 	characterization on three main factors: 	(1) 	the use of
GSI positions as a recruitment tool; 	(2) 	the basis 	for fixing
salary levels; 	and 	(3) 	the criteria used 	for appointment and
reappointment.
A few departments, 	particularly the 	sciences, 	use
appointments 	to 	the disputed 	classifications 	as 	a 	recruitment
tool 	to 	attract highly 	sought after 	students. 	While mostly 	it 	is
done with GSR positions, 	which 	I 	have agreed 	should be 	excluded
from coverage, 	it is 	sometimes done with GSI positions as well.
Unlike the majority, 	I 	fail to 	see any 	significance 	in this
occasional practice. 	Most graduate 	students do not have the
necessary 	independent wealth 	or 	grants 	or 	fellowships 	to 	allow
them to 	avoid at 	least part-time work while 	enrolled. 	A
guarantee 	of 	such a 	job would 	certainly be 	attractive 	to 	such a
prospective student. 	However, 	this hiring practice, 	which
applies, 	in any event, 	to only a tiny fraction of GSIs, 	does 	not
transfor- .. . . m what 	is 	otherwise 	a 	job 	into a 	form of 	financial 	aid.
The 	majority also goes 	to great 	lengths 	to 	establish that
GSI 	salary 	levels 	are 	set 	in a manner 	inconsistent with 	the
notion of 	compensation for 	services. 	This 	argument 	is 	based on
the 	assertion that 	non-market 	factors 	are 	used 	in 	setting 	the
salary levels. 	Yet, 	the majority admits 	that the major criterion
is what competing institutions 	are paying. 	Is 	that not a
"market"-related 	criterion? 	The majority also 	notes 	that 	the
University considers 	the 	cost of 	living 	in the area, 	including
81

the cost of tuition and fees. 	Moreover, 	the majority finds 	it
significant 	that 	the 	University does 	not 	operate 	from a profit
motive, 	but 	seeks 	to efficiently direct 	its 	resources 	so as 	to
attract the best candidates while, 	at the 	same time, 	spread those
resources 	around so as to maximize the number it can employ. 	Are
these not 	the 	same 	kinds 	of 	considerations 	that go 	into 	any
academic 	employment 	at 	a public 	institution? 	The 	majority's
attempt 	to 	draw distinctions 	with 	employment 	in the private
sector 	is 	simply misplaced.
Lastly, 	the majority puts 	great weight on its 	assertion that
the manner 	in which GSIs 	are hired militates 	against 	calling
their 	salary a 	salary. 	The record 	shows 	that 	only 	30 percent of
departments 	take 	financial need into account at all. 	By far, 	the
two most 	significant 	criteria 	are 	merit 	(the 	applicant's
familiarity with the 	subject matter and prior 	experience) 	and the
department's 	staffing needs. 	In characteristic 	fashion, 	the
majority 	lists 	all 	the 	criteria 	mentioned by all witnesses
without 	bothering 	to distinguish which are 	the 	most 	important.
It 	is 	critical 	to remember that not all those who apply
receive GSI 	positions. 	Reappointment 	is 	also based primarily on
merit, 	with consideration given to the 	evaluations 	GSIs 	receive
from the students. 	While, 	in theory, 	graduate students'
continued 	satisfactory progress 	toward 	their degree 	is 	also 	taken
88The majority also relies 	on the 	fact that the 	level 	of
compensation does 	not 	relate 	neatly to 	the number hours worked.
This, 	of course, 	is true of most kinds of professional
employment.
82
8

into account, 	the record established that this 	criterion is
rarely applied. 	I 	do not want to overstate my point. 	Academic
considerations do 	sometimes 	come 	into play in hiring GSIs, 	but
the 	record reflects 	that 	this 	happens 	primarily 	in extreme 	cases.
Several 	GSIs 	testified that 	they 	continued to 	teach 	on 	a 	regular
basis 	despite 	cautions 	from their research advisors 	that 	it was
interfering with their dissertation work, 	yet 	there was 	no
evidence 	that 	these 	individuals 	had 	any difficulty 	getting
reappointed.
Relying on 	its 	view of 	the use 	of 	academic 	criteria 	in
appointing GSIs, 	the majority asserts 	that this demonstrates
that, 	when in conflict, 	academic 	interests prevail over
employment interests. 	This 	inquiry, 	the result of the majority's
"recalibration of 	the 	scale," 	is 	purported to hold the 	key 	to
determining whether 	educational 	objectives 	or 	the 	services
provided predominate. 	Assuming, 	for the 	sake of argument, 	that
this 	approach 	accurately 	reflects 	the 	interpretation of
subdivision 	(f) 	set out in Regents. 	the majority's 	application of
- -
this 	approach 	is 	seriously 	flawed.
When comparing 	educational 	and 	employment 	interests, 	the
majority 	mistakenly 	focuses 	its 	inquiry 	on a 	theoretical
conflict between the graduate 	students' 	degree progress 	and their
application for employment as 	a GSI. 	No one would dispute 	that
graduate 	students' 	primary aim while 	enrolled at 	the 	University
is 	to get their degree. 	If push came to 	shove between completing
83

degree work and 	seeking or accepting a GSI position, 	there 	is 	no
question that the degree would come 	first.9
The proper 	comparison would be 	to 	examine what would happen
when a 	conflict 	arose between degree work and 	the duties 	of 	a 	GSI
who 	is 	already in that position. 	The record contains 	abundant
evidence relevant to this 	inquiry. 	It 	is 	undisputed that GSIs
are 	expected 	to 	competently 	complete 	their duties 	in a 	timely
manner. 	It is also undisputed that, 	where there is a conflict
between degree work and GSI 	duties, 	the GSI 	duties 	take
precedence. 	Testimony revealed that, 	when faced with 	such a
conflict, 	GSIs put off 	their degree work temporarily. 	This was
the very basis 	for 	the 	overwhelming body 	of 	testimony 	that 	GSI
work 	interfered with 	degree work.
In 	fact, 	the evidence 	shows 	that when GSIs 	are 	faced with
strict deadlines 	for both types of work, 	they go to their
professors 	(from whom they are 	taking 	classes) 	or their research
advisors 	and 	seek an extension of 	time to 	complete 	their work.
The deadlines 	for GSI work 	(for example, 	the 	submitting of
grades) 	are, 	in contrast, 	viewed as immutable. 	It is rather
obvious 	that GSIs 	must prepare 	for and teach their 	classes 	at 	the
scheduled time and cannot put 	off 	these duties 	if 	it will
interfere with degree work. 	Thus, 	assuming that the majority's
"recalibrated" 	balancing test 	is probative of 	the 	issue before
90f 	course, 	if the 	student 	could not afford to 	stay 	in
school without working, 	what would probably happen would be 	that
he or 	she would drop out temporarily, 	in the hope of working and
saving 	enough money to return at 	a 	later date.
84

us, 	a proper application of the test unequivocally results 	in the
conclusion that 	educational 	objectives 	of GSIs 	are 	subordinate 	to
the 	services provided.
The Purposes 	of the Act
Lastly, 	having found that the GSIs' 	educational objectives
are 	subordinate to the 	services provided, 	I 	now turn to the 	final
inquiry: 	whether 	coverage of 	GSIs would 	effectuate 	the purposes
of the Act. 	I 	conclude that it would. 	I 	find the majority's
rationale 	for 	concluding 	otherwise 	to 	be without 	foundation.
First, 	the majority asserts 	that 	collective bargaining will
interfere with 	the 	purported 	mentor 	relationship 	between 	faculty
and graduate 	student employees. 	As 	I 	explained above, 	this
argument has 	some validity with regard to GSRs, 	but no 	such
relationship 	is 	created by 	the 	limited nature 	of 	the 	contacts
between 	faculty and GSIs. 	The majority also repeats 	its 	strained
characterization of GSI 	and GSR salaries 	as 	stipends. 	I 	will 	not
repeat my discussion above 	as 	to why this 	characterization 	is
inaccurate; 	however, 	there is an additional comment the majority
has 	added that requires 	a response. 	The majority 	states, 	at page
51, 	that, 	because 	"the graduate students' 	major goal is to secure
a 	graduate 	level 	education 	that will 	serve 	their 	career
aspirations," 	the 	focus 	of 	collective bargaining on economic
issues would 	interfere with those goals. 	As 	the 	record 	clearly
demonstrates, 	GSI work 	(unlike most GSR work) 	is usually
unrelated to degree work. 	Therefore, 	it is difficult to 	see how
the GSIs' 	goal 	of 	completing their degree work will 	conflict with
85

collective 	bargaining restricted 	to 	issues 	involving GSI 	work.
In other words, 	this 	is but another example of the majority
mixing apples 	and oranges 	(GSIs being the apples 	and GSRs 	being
the 	oranges).
In attempting to 	stress 	the academic 	nature of GSI
employment, 	the majority badly misstates 	the record by claiming
that GSIs apply for these positions, 	generally, 	to acquire and
develop 	the 	necessary educational 	skills 	to 	achieve 	their
educational objectives and, 	specifically, 	to learn a particular
subject, 	refresh one's background in fundamentals, 	or learn a
different 	approach 	or perspective 	to 	a 	topic 	through 	a particular
professor or course. 	These motivations were not 	expressed by GSI
witnesses, 	but 	instead represent the 	subjective views 	of
University witnesses. 	The record is 	clear that the GSIs
- ' 	primary
motivation is 	economic, 	i.e., 	they need a part-time 	job in order
to 	stay in school. 	Moreover, 	the record shows 	that the
substantive material of 	the courses 	taught 	is 	of a very basic
character 	that has 	already been mastered by 	the 	GSIs 	by 	the 	time
they are 	graduate 	students. 	Consistent with this 	basic 	truth 	is
the 	evidence which 	shows 	that 	a 	factor considered 	in hiring GSIs
is 	their 	familiarity with the 	subject.
The majority 	claims 	that 	"continuous 	movement" 	among
graduate 	students 	in and out of 	the disputed 	classifications
would make 	collective 	bargaining 	unfeasible 	due 	to 	the
instability 	it would cause. 	Though the majority does 	not 	explain
itself 	fully on this point, 	two 	simple observations 	should
86

- -
dispose of this argument. 	One, 	the majority fails to recognize
that most GSIs 	appointments 	are 	for a 	full 	academic 	year 	and that
other limited term employees 	are 	covered by the Act. 	Two, 	as 	the
ALJ 	so 	cogently observed, 	the 	same 	argument would apply 	to
readers 	and tutors, 	who the University concedes 	are covered by
the Act.
Lastly, 	the majority 	warns 	of 	the 	interference with
educational policy matters 	that would 	result 	from the 	injection
of 	collective bargaining 	into the GSI 	program. 	This 	is 	the 	same
"Chicken Little"-type 	argument 	that 	the California 	Supreme Court
so resoundingly rejected 	in Regents:
Moreover, 	the University's argument is
premature. 	The argument basically concerns
the 	appropriate 	scope 	of 	representation under
the Act. 	(See sec. 	3562, 	subd. 	(q).) 	Such
issues 	will 	undoubtedly 	arise 	in 	specific
factual 	contexts 	in which one 	side wishes 	to
bargain over 	a 	certain 	subject 	and the 	other
side does 	not. 	These 	scope-of-representation
issues 	may be 	resolved by 	the 	Board when they
arise, 	since it alone has 	the responsibility
"[t]o determine 	in disputed cases whether a
particular 	item 	is within or without the
scope of representation." 	(sec. 	3563, 	subd,
(b).)
(41 	Cal.3d at p. 	623.)
The key point made by the 	court 	in Regents 	is 	that the
University 	is 	not 	obligated to bargain over matters 	of
educational policy, 	thus, 	collective bargaining need not cause
any 	interference with those matters. 	HEERA contains 	very
specific 	limitations 	upon 	scope which 	address 	much 	of what 	the
87

majority claims 	to be concerned about. 	Section 3562, 	subdivision
(q) 	states, 	in pertinent part:
For purposes 	of 	the University of California
only, 	"scope of representation" means, 	and is
limited to, wages, 	hours of employment, 	and
other terms 	and 	conditions 	of 	employment.
The 	scope 	of 	representation 	shall 	not
include:
(1) 	Consideration of the merits, 	necessity,
or organization of any service, 	activity, 	or
program 	established 	by 	law or 	resolution 	of
the regents or the directors, 	except for the
terms 	and 	conditions 	of 	employment of
employees 	who may be 	affected 	thereby.
(2) 	The amount of any fees which are not a
term or 	condition of 	employment.
(3) 	Admission requirements 	for students,
conditions 	for the 	award of 	certificates 	and
degrees 	to 	students, 	and the content and
supervision of courses, 	curricula, 	and
research programs, 	as those terms are
intended by the 	standing 	orders 	of 	the
regents 	or the directors.
All matters not within the 	scope of
representation are 	reserved 	to 	the 	employer
and may 	not be 	subject 	to 	meeting 	and
conferring, 	provided that nothing herein may
be 	construed to 	limit the right of 	the
employer to 	consult with any 	employees 	or
employee 	organization on 	any matter 	outside
the 	scope of representation.
As 	the majority points 	out, 	HEERA expressly 	states 	that 	"it
is 	the policy of 	the 	State of 	California 	to 	encourage 	the pursuit
of 	excellence 	in teaching, 	research, 	and 	learning through the
free exchange of 	ideas 	. . . " 	(HEERA sec. 	3561, 	subd. 	(c)).
However, 	the majority fails 	to mention that 	HEERA also reflects
the 	Legislature's 	finding 	that 	collective 	bargaining 	in higher
88

education is 	consistent with that policy. 	HEERA 	section 	3560,
subdivision 	(e) 	states:
It 	is 	the purpose of 	this 	chapter to provide
the means 	by which relations 	between each
higher 	education 	employer and 	its 	employees
may 	assure 	that 	the 	responsibilities 	and
authorities 	granted 	to 	the 	separate
institutions 	under 	the Constitution 	and by
statute 	are 	carried 	out 	in an atmosphere
which permits 	the 	fullest participation by
employees 	in the determination of 	conditions
of 	employment which affect them. 	It 	is 	the
intent 	of 	this 	chapter to 	accomplish this
purpose 	by providing 	a 	uniform basis 	for
recognizing the right of 	the 	employees 	of
these 	systems 	to 	full 	freedom of 	association,
self-organization, 	and designation of
representatives 	of 	their own choosing 	for 	the
purpose 	of 	representation 	in their 	employment
relationships with 	their 	employers 	and 	to
select one of these organizations 	as 	their
exclusive 	representative 	for the purpose 	of
meeting 	and 	conferring.
While the majority may disagree, 	the Legislature has 	found
that 	collective 	bargaining 	for 	academic 	employees 	is 	consistent
with the 	educational policies 	of 	this 	state. 	Nevertheless,
subdivision 	(f) 	of 	section 	3562 	does provide the Board with the
authority 	to 	exclude 	from 	coverage 	those 	student 	employees 	whose
employment 	is 	of 	a particular nature 	that makes 	collective
bargaining 	inappropriate despite 	the 	Legislature's 	findings.
However, 	as pointed out above, 	the majority has 	failed to cite
legitimate reasons why GSI 	employment 	is 	of 	such a nature. 	Since
my review of the record has 	revealed no additional reasons, 	the
inescapable 	conclusion 	is 	that 	coverage 	of 	GSIs would 	effectuate
the purposes 	of the Act.
89

Conclusion
In 	sum, 	I would affirm the ALJ's 	conclusion that GSRs 	should
be 	excluded 	from coverage due 	to 	the 	strong 	evidence 	that
educational 	objectives predominate 	in the vast majority of 	such
positions. 	I would not, 	however, 	carve out those whose work has
been 	shown to be unrelated to their educational objectives, 	due
to 	the 	infeasibility 	of 	accurately 	and 	consistently 	identifying
such 	individuals.
I 	would also 	affirm the ALJ's 	finding that 	GSIs 	are 	covered
by the Act. 	The 	evidence 	showed unequivocally that 	the GSIs'
motivations 	(which 	is 	the proper 	inquiry pursuant 	to 	Regents)
were primarily 	economic 	and 	that 	educational 	objectives 	played 	a
small part 	in their GSI work. 	This, 	coupled with the undisputed
evidence of the substantial, 	if not critical, 	contribution of
GSIs 	to the provision of undergraduate education, 	dictates 	the
conclusion that the GSIs' 	educational 	objectives 	are 	subordinate
to the 	services provided. 	In fact, 	the evidence 	in favor of this
conclusion is 	even stronger than that in Regents. 	Thus, 	if
- -
housestaff are 	covered by the Act, 	then GSIs must be as well.
The majority reaches 	a different 	conclusion as 	to 	GSIs
through 	several basic analytical 	flaws. 	First, 	the majority
misconstrues 	Regents 	and 	improperly 	emphasizes 	the 	University's
- -
subjective views of the purposes of the GSI work. 	Secondly, 	the
majority badly misstates 	the 	record, 	often citing evidence 	in
support of 	its 	conclusion concerning GSIs which, 	in fact,
pertains 	only to GSRs. 	Ironically, 	a more logical application of
90

the 	majority's 	own analysis 	concerning the 	need 	to 	"recalibrate
the 	scale" 	and examine which duties prevail when there 	is 	a
conflict 	emphatically demonstrates 	the predominance 	of 	the 	GSI
duties 	(over degree work).
Lastly, 	the majority warns 	of 	the danger to 	educational
interests 	that would 	result 	from 	collective bargaining. 	As
discussed above, 	these are 	essentially arguments 	about 	the 	scope
of 	representation that 	are 	not 	only premature 	and unfounded
(given the specific 	scope language in the statute), 	but were
rejected 	in Regents. 	The majority's 	analysis 	is 	so broad that 	it
would 	encompass 	all 	conceivable 	student 	employees. 	This 	simply
does 	not 	comport with the plain language of 	subdivision 	(f),
which reflects 	the 	Legislature's 	view that 	some 	such 	employees
would be 	covered 	and 	some would 	not. 	The ALJ 	struck the proper
balance, 	but the majority rejects 	his proposed decision. 	The
majority's 	hostility to the 	result 	in Regents 	is 	only thinly-
disguised. 	The majority's 	opinion clearly 	sends 	the 	signal 	that
the 	Board 	is 	drawing the 	line 	on the 	coverage 	of 	student
employees. 	Given the abundant 	evidence 	that the 	educational
objectives 	of GSIs 	are 	subordinate 	to the 	services provided, 	one
must ask the question, 	if they are not covered, 	then who would
be? 	The answer is, 	clearly, 	no one. 	The majority has 	thus
frustrated 	legislative 	intent 	as 	found by 	the 	court 	in Regents
-
and has 	effectively rewritten 	subdivision 	(f) 	to prohibit
coverage 	of 	student 	employees whose 	employment has 	any relation
to 	their 	educational 	objectives.
91

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-179-H,
Association of Graduate 	Student Employees 	v. 	Regents 	of 	the-
University of 	California, 	in which 	all parties 	had the 	right 	to
participate, 	it has 	been found that the Regents 	of 	the University
of California has violated 	sections 	3571(a) 	and 	(b) 	of 	the Higher
Education Employer-Employee Relations Act 	(HEERA) 	by refusing to
recognize 	certain classifications 	of 	graduate 	student 	employees
at 	the 	University 	of 	California 	at 	Berkeley 	as 	employees 	for
purposes 	of 	HEERA, 	and by refusing to provide payroll 	deductions
for union dues 	for 	such 	employees.
As 	a 	result 	of 	this 	conduct, 	we have been ordered to post
this 	Notice, 	and will abide by the 	following, 	we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to 	recognize 	graduate 	student 	employees
employed 	at 	the 	University of 	California 	at 	Berkeley 	in the
classifications 	of Community Teaching Fellow 	(Title Code 	2305),
Nursery School Assistant 	(Title Code 	2286), 	and Acting 	Instructor
(Title Codes 	1401, 	1407, 	and 	1417) 	as employees within the
meaning of 	section 3562(f) 	of 	HEERA; 	and Association of Graduate
Student 	Employees 	as 	an 	employee 	organization representing 	these
employees.
2. 	Refusing to 	implement payroll deductions 	of dues
for AGSE 	for 	such employees, 	upon request.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEE 	RELATIONS ACT:
1. 	Implement payroll deduction of dues 	for the
Association of 	Graduate 	Student 	Employees 	upon request 	of 	the
above-mentioned 	employees within the meaning of 	section 	3562(f).
Dated: 	THE 	REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA
By:.
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST NOT
BE 	REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED BY ANY MATERIAL.