PERB Decision No. 1301H•The Regents of the University of California and Student Association of Graduate Employees, et al. (PERB 1301H)
The Regents of the University of California and Student Association of Graduate Employees, et al. (PERB 1301H)
PERB Decision No. 1301HCalperb11.12.1998
Gesamter Gesetzestext
STATE OF CALIFORNIA . DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD R THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Employer, and STUDENT ASSOCIATION OF GRADUATE EMPLOYEES, U.A.W., UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO, Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ___________________ ) Case No. SF-RR-813-H (UC Los Angeles) PERB Decision No. 1301-H December 11, 1998 Appearances: Proskauer, Rose, Goetz and Mendelsohn by Walter Cochran-Bond, Attorney, for The Regents of the University of California; Schwartz, steinsapir, Dohrmann & Sommers by Margo A. Feinberg, Attorney, for student Association of Graduate Employees, U.A.W., United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Before Caffrey, Chairman; Johnson and Dyer, Members. DECISION CAFFREY, Chairman: This case is before the Public Employment Relations Board (PERB or Board) on exceptions filed by The Regents of the University of California (University) to a proposed decision (attached) by a PERB administrative law judge (ALJ). In the proposed decision, the ALJ determined that student employees in graduate student instructor (GSI), reader, special reader, tutor, remedial tutor and part-time learning skills counselor 'positions at the University of California, Los Angeles campus (UCLA), as identified in the request for recognition petition filed by the Student Association of Graduate Empioyees, U.A.W., United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO (Petitioner) are employees under the ' Higher Education Employer-Employee Relations_Act (HEERA or Act). 1 The ALJ held that a bargaining unit composed of employees in these titles at UCLA is an appropriate bargaining unit, and he ordered that a representation election be conducted. The ALJ also found that student employees in graduate student researcher (GSR) and tutor supervisor positions are not employees under HEERA, and should be excluded from the bargaining unit. The Board has reviewed the entire record in this case, including the transcript and exhibits, the ALJ's proposed decision, the University's statement of exceptions and Petitioner's response thereto. Finding them to be free of prejudicial error, the Board hereby adopts the ALJ's findings of fact as the findings of the Board itself. The Board also adopts the ALJ's conclusions of law, as modified below, and finds that student employees in the GSI, reader, special reader, tutor, remedial tutor and part-time learning skills counselor positions at UCLA are employees under the HEERA. INTRODUCTION Procedural History Under HEERA, an employee organization may request that the University recognize it as the exclusive representative of the employees of a proposed bargaining unit for the purpose of 1HEERA is codified at Government Code section 3560 et seq. Unless otherwise indicated, all statutory references herein are to the Government code. 2
meeting and conferring with the University over terms and conditions of employment. (HEERA sec. 3573.) On March 31, 1994, the Petitioner led a request for recognition petition with PERB seeking to represent a proposed unit of readers, tutors, acting instructors, community teaching fellows, nursery school assistants, teaching assistants, associates, teaching fellows, and research assistants employed at UCLA. on May 6, 1994, the PERB San Francisco regional director determined that the proof of support submitted by the Petitioner with the request for recognition petition was sufficient to meet the requirements of HEERA. (PERB Reg. 51030(b).) 2 The Unive;r-sity will grant the employee organization's request to become the exclusive representative of the proposed unit, unless, among other reasons, the University reasonably doubts the appropriateness of the proposed unit. (HEERA sec. 3574.} On May 23, 1994, the University filed its response to the petition, asserting that the unit sought by the Petitioner was inappropriate because it included student employees who are not employees as defined in HEERA. The University also indicated that to the extent the petitioned-for titles included non-student employees, those employees should be placed in a separate 2PERB regulations are codified at California Code of Regulations, title 8, section 31001 et seq. 3
systemwide unit or accreted to the existing systemwide Non- Academic Senate Unit (Unit 18). On June 27, 1994, the Petitioner filed a request for a PERB investigation to determine the appropriateness of the unit. (PERB Reg. 51090.) The settlement conference on August 9, 1994, did not resolve the matter. On September 12, 1994, the Petitioner amended its request for recognition petition by adding the special reader and remedial tutor positions. On September·19, 1994, the PERB regional director determined that the amended request for recognition had sufficient proof of support. Also, on September 19, 1994, the University filed a response to the amended request for recognition disputing the appropriateness of the unit for the same reasons it opposed the original petition. Additionally, on September 19, 1994, the Petitioner filed a motion with the ALJ to consolidate the hearing in this case with hearings for related, but not identical, request for recognition petitions concerning the University's campuses at Davis (UCD), San Diego (UCSD), and Santa Barbara (UCSB). 3 The ALJ granted the motion in part on October 28, 1994. The ALJ ordered the consolidation of the records ih the four request for recognition cases. The Petitioner's request for a single formal hearing covering all four cases was denied. 3 The motion did not seek consolidation of the petitionsthemselves. At the time the motion was filed, the only petition set for formal hearing involved positions.at UCSD (CaseNo. SF-RR-8O5-H). 4
On December 22, 1994, the ALJ issued an order to show cause on Petitioner as to why GSis and GSRs should not be dismissed from the petition based upon Association of Graduate student Employees v. Public Employment Relations Bd. (1992) 6 Cal.App.4th 1133 [8 Cal.Rptr.2d 275] rev. den. August 13, 1992 (AGSE) . 4 On March 13, 1995, the ALJ determined that GSis and GSRs would not be dismissed from the petition, and that the parties would be given the opportunity to fully litigate those positions during the hearing. The University appealed the ALJ's ruling to the Board itself and on July 17, 1995, the Board affirmed the ALJ's ruling on the order to show cause.· (Regents of the University of California (1995} PERB Order No. Ad-269-H.) On October 16, 1995, Petitioner amended the request for recognition petition deleting certain tutor title codes, acting instructors, community teaching fellows, nursery school assistants and some GSR title codes. The amendment also added tutors in other title codes and part-time learning skills counselors. Another title code amendment was filed on October 30, 1995. As a result of these amendments, the titles at issue in this case are: GSR, GSI, readers, special readers, tutors, remedial tutors, part-time learning skills counselors and tutor supervisors at UCLA. The ALJ conducted thirty-nine days of formal hearing between October 18, 1995 and January 10, 1996. Briefs were filed and the 4 The Board's decision in the AGSE .case is Regents of the University of California (1989) PERB Decision No. 730-H (Regents(AGSE)). 5
case was submitted for decision on July 16, 1996. The ALJ's proposed decision was issued on September 13, 1996. Following extensions of time granted to the parties to file the University's exceptions and the Petitioner's response, the filings were completed January 10, i997. The Statutory Test The University asserts that the unit proposed by the Petitioner is inappropriate because it includes student employees who are not covered by HEERA. HEERA section 3562(f) (hereafter subsection (f)) defines an employee under HEERA: 'Employee' or 'higher education employee' means any employee of the Regents of theUniversity 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 servicesthey 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 B9ard must apply this definition to determine in this case whether students employed by the University at UCLA in the positions included in the request for recognition petition are employees under HEERA and, therefore~ are entitled to negotiate with the University over the terms and conditions of their employment. Subsection (f) sets out a three-part test to determine whether collective bargaining rights should be extended to student employees. 6
Under the first part of .. the test, the Board must determine whether employment of student employees is contingent on their status as students. If so, the Board must proceed to apply the subsection (f) test. If not, the student employees are employees under HEERA and the remainder of the subsection (f) test need not be applied. Under the second part of the test, the Board must determine whether the services provided by student employees are related to their educational objectives. If so, the Board must proceed to apply the third.part of the subsection (f) test. If the services provided by the student employees are unrelated to their educational objectives, they are employees under HEERA and the third part of the subsection (f) test need not be applied. The third part of the test has two prongs. Under the first prong, the Board must determine whether the educational objectives of student employees are subordinate to the services they perform. Under the second prong, the Board must determine whether coverage of the student employees under HEERA would further the purposes of the Act. In order for the Board to conclude that student employees are employees under HEERA, affirmative determinations must be made under both prongs. Prior Cases Involving the Application of the Statutory Test The issue of the application of the subsection (f) test to student academic employees at the University has come before PERB in three prior c~ses. In Regents of the University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601 7
[224 Cal.Rptr. 631] (Regents), the Supreme Court upheld the Board 1 s decision that housestaff (medical interns, residents and clinical fellows in residency programs at University hospitals) were employees under HEERA. In that case, the court considered the legislative history behind the enactment of HEERA. Initially the court noted that prior to final passage of the Act, the Legislature amended it to remove a specific work hour standard under which a student employee would be determined to be an employee for purposes of HEERA. Thus, the Legislature left the -determination of student employee status to PERB. The court concluded that subsection (f) requires PERB to make a 11 case-by- case assessment of the degree to which a student's employment is related to his or her educatidnal objectives. 11 (Regents at p. 607.) The court then considered whether the Legislature intended the language of subsection (f) to incorporate the precedent of the National Labor Relations Board (NLRB), which held that housestaff in the private sector were not employees under the National Labor Relations Act. In two NLRB decisions involving housestaff, a majority of the NLRB adopted a 11 primary purpose'' test which focused primarily on the students' motivation for participating in housestaff programs. The NLRB majority concluded that the students' interests in their own educational development by participating in residency programs, outweighed their interests in providing services. The dissent in these cases concluded that the student employees' motivation was 8
irrelevant,
believing
that
the
focus should
be
confined
to
the
services actually
performed
by
the student
employees.
Based
upon
its
review
of
these
NLRB
decisions,
a
majority
of
the court in
Regents concluded
that
the Legislature
intended
to
create
a n~w
standard in the
HEERA,
rather
than follow
NLRB
precedent.
The
court
found
that
subsection
{f)
represents
a
compromise
between
the
NLRB's
majority
and
dissenting
opinions,
requiring
that
both
factors,
a
student's
purpose
for
participating
in the position
and
the services
provided,
be
considered.
The
court
stated:
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 obligations.
[Regents
at
p.
614,
fn. omitted.]
The
court
instructs, therefore,
that
even
if
all
the student
employees
agreed
that their
purpose
in
seeking student
academic
employment was
to further their
educational objectives, the
Board
could determine
that
those educational objectives
were
subordinate
to the value of the services they provided
to the
University.
Applying
this
standard, the court in
Regents found
that
there
was
substantial evidence to support the Board's finding
9under prong one of the third part of the statutory test, that the educational objectives of housestaff were subordinate to the services they provided. There·was evidence that housestaff sought to participate in residency programs ·in order to obtain extensive medical training. However, these educational objectives were found to be subordinate to the valuable patient care services they provided. The court also found support for the Board's determination under prong two, that the purposes of HEERA would be furthered by extending collective bargaining rights to housestaff. · The Board found that there were substantial employment concerns which affect housestaff and that certain issues, such as salaries, vacation time, fringe benefits and hours, were "manifestly amenable to collective negotiations." (Regents at p. 622.) The Board also concluded that by providing housestaff with a mechanism for resolving disputes, harmonious and cooperative labor relations between the university and housestaff would be furthered. Accordingly, the court affirmed the Board 1 s determination that housestaff were employees for purposes of HEERA. PERB addressed the student employee issue a second time in Regents (AGSE). In this case, the Board considered whether graduate students appointed to GSI and GSR positions at the University's Berkeley campus were employees covered by HEERA. After reviewing the Regents decision, the Board concluded that there were significant factual differences between the housestaff 10
in Regents and the graduate student employees in this case. The Board noted the difficulty in balancing a seemingly subjective element (educational objectives) against an objective one (services performed). Based upon these considerations, the Board in Regents (AGSE} found it necessary to "recalibrate" the scale in the first prong of the statutory test set forth in Regents. Under this new approach, the ~oard focused on the apparent conflicts between the student employees' academic and employment interests. The Board concluded that the educational objectives of GSis and GSRs were not subordinate to the services they provided because where conflict existed between academic and economic considerations, academic considerations prevailed. Applying the second prong of the test, PERB also found that the purposes of HEERA would not be furthered by extending collective bargaining rights to GSis and GSRs for several reasons, including: (1) impact on the student/faculty mentor relationship; (2) the economic nature of collective bargaining would override academic goals; (3) impact on the academic nature of the selection process.; ( 4) instability resulting from the continuous movement of graduate students in and out of the unit; and (5) the impossibility of separating academic and economic matters. Accordingly, the Board concluded that graduate students appointed to GSI and GSR positions at the Berkeley campus were not employees for purposes of HEERA. On appeal, the court in AGSE found that the Board erred by ·establishing a new test which conflicted with the standard set 11
forth in Regents. The court held that the Board's "recalibration of the scales" had so distorted the first prong of the test that the Board's conclusion was suspect unless saved by its ruling under the second prong. The court stated the proper test under the first prong: 'Case-by-case analysis' would call upon PERB to consider all the ways in which GSI and GSR employment meet educational objectives of the students and all the ways in which the employment provides services and to compare the value and effectiveness of the employment in meeting the students' educational objectives with the value and effectiveness of the employment in providing services. PERB, with its expertise, would then make a judgment about whether the employment was more valuable and effective in meeting educational objectives or in providing service to the University: whether the'educational objectives are subordinate to the services' the students perform. [AGSE at p. 1143, emphasis in original.] Although the court rejected the Board's first prong test, it upheld the Board's conclusion that GSis and GSRs were not employees under HEERA, finding that there was substantial evidence to support the Board's determination that the purposes of HEERA would not be furthered by extending collective bargaining rights to GSis and GSRs. The Board recently applied the guidance contained in these two prior cases in determining whether HEERA coverage should be extended to certain student academic employees at UCSD. In Regents of the University of California (1998) PERB Decision 12
No. 1261-H (UC San Diego), the Board determined that students employed as readers, tutors and associates at UCSD are employees under HEERA. In UC San Diego, the Boar~ rejected the University's assertion under prong one of the third part of the subsection (f) test, that the educational objectives of the student academic employees at issue were not subordinate to the services they performed. Referring to the prior court decisions, the Board stated: The AGSE court instructs that 'the statute and Regents decision call for a value judgment about which is subordinate, not a scientific weighing ~rocess.' In making this value judgment, the Board must consider how vital employment as a reader, tutor or associate is to the achievement of students' educational objectives, and how vital the services provided by readers, tutors and associates are to the accomplishment of the educational mission of the University. In Regents, the court applied this part of the subsection (f) test by considering whether 'services must be performed without regard to whether they will provide any educational benefit' to the students performing them. (UC San Diego at p. 20.) The Board then concluded that, because the services provided by readers, tutors and associates were vital to the academic mission of the University, and were not vital to the accomplishment of educational objectives, the educational objectives of student employees in those positions were subordinate to the services they performed. The Board in UC San Diego also determined that coverage under HEERA of the student academic employees at issue would 13
further the purposes of the Act. In response to the University's arguments to the contrary., the Board noted the expressed purpose of HEERA, at section 3560(e), to provide for relations between the higher education employer and its employees which permit the fullest participation of employees in determining the conditions of their employment. The Board stated: It is axiomatic, therefore, that theextension of collective bargaining rights to University employees is consistent with, and in furtherance of, the expressed purpose of HEERA. To the extent that the University's position is based on the assertion that extending collective bargaining rights to student academic employees would fundamentally conflict with the University's educational mission, that position ignores and is inconsistent with HEERA1s expressed purpose. [UC San Diego at p. 28.] The· Board noted HEERA provisions which preserve and encourage academic freedom, shared governance and joint decisionmaking between the University and its faculty, and peer review and tenure systems for academic employees. The Board also cited HEERA provisions which exclude from the scope of representation subjects which could intrude in these academic areas. The Board stated: HEERA encourages the 11 pursuit of excellence" at the University. Harmonious and cooperative labor relations result from a system of collective bargaining between theUniversity and its employees which respects the concept of academic freedom. Under .HEERA~, .these,-,,Goneepts- -· •ooll·e·ctive bargainingand academic freedom - coexist and complement one another. They are not mutually exclusive, as much of the University's argument seems to suggest. (UC San Diego at p. 30.) 14
•
As
noted
above,
the
record
in
UC
San Diego and
the
case
at
bar
have been
consolidated. In
UC
San
Diego,
the
Board
applied
the
guidance
included
in the
prior
cases invplving
the
application
of
the
subsection
(f)
test
to
student
academic
employees
at
the
University,
and
concluded
that
the
student
employees
at
issue
were employees
under
HEERA.
The
Board
is
guided
by
its
reasoning
in
UC
San
Diego
in
the application of the
subsection (f)
test
here.
DISCUSSION
Petitioner offers
no
exceptions
to
the
ALJ's
finding
that
GSRs
are
not
employees
under
subsection
{f)
and,
therefore, are
not
covered under
HEERA.
Petitioner also offers
no
exceptions
to
the
ALJ's
finding
that tutor
supervisors are supervisory
employees
as defined in
HEERA
section
3580.3 and,
therefore, are
not
covered under
HEERA.
The Board.
adopts
these findings
by
the
ALJ
as
the
findings of the
Board
itself.·
As a
result,
the
following
discussion pertains to the positions of
GSis,
reader,
special reader,
tutor,
remedial
tutor
and
part-time learning
skills
counselor.
The
Constitutional Issue
In
its
exceptions
to the
ALJ's proposed
decision, the
University for the
first
time
raises
a
constitutional issue.
The
University argues
that the application of
HEERA
to student
academic employees, such as those
at issue here,
would
violate
Article
IX,
Section
9
of the California Constitution,
which
states, in pertinent part:
15The University of California shall constitute a public trust, to be administered by the existing corporation known as 'The Regents of the University of California,' with full powers of organization and_government, subject only to such legislative control as may be necessary to insure the security of its funds and compliance with the terms of the endowments of the university and such competitive bidding procedures as may be made applicable to the university by statute for the letting of construction contracts, sales of real property, and purchasing of materials, goods, and services. The University asserts that HEERA coverage of student academic employees would interfere with certain central functions of the University, and thereby violate the constitutional restriction that the 11 full powers of organization and government" reserved to the Regents of the University may be subject only to limited ·legislative control. The University does not argue that HEERA coverage of any of its employees interferes with its central functions in violation of this constitutional restriction. Instead, the University asserts that the implications of this constitutional issue with regard to HEERA coverage of its employees are narrow - limited to student academic employees only. The University explains: The Legislature, at the time it was considering the enactment of a collectivebargaining statute that would be applicable to the University, was aware of the limitations imposed by article IX, section 9. It invited the University to participate in . --neg-Gtiating,-the-terms· ·Of 0 0 ' ~he··,st:atuteT and· the resulting statutory language reflected the extent to which the University was willing to become voluntarily subject to the collectivebargaining scheme created by the Act. As a result of this collaborative process, the constitutional issue of whether the 16
Legislature had the power to enact HEERA over the University's objection did not arise, because the University agreed to participate in the framework created by the statute. The extent of the University's agreement is reflected in the language of the statute. The text makes it clear that the Act intends that all of the University's non-academic emp.loyees and some of its academic employees will participate in its procedures~ Forexample, the statute clearly indicates an intention to cover tenured faculty. (Gov. Code, § 3579, subd. (e).) And the Universityhas consistently abided by these provisions. The same is not true with respect to student academic employees. Rather, the statute includes section 3562, subdivision (f) which expressly limits HEERA coverage to only certain student employees. The University points out that it has consistently argued in the prior cases cited ·above that the language of subsection (f) is sufficient to exclude student academic employees from HEERA coverage. Throughout this litigation, it was the University's position that the two-pronged test was intended to exclude student academic employees such as housestaff. Since theUniversity was confident that the two-pronged test sufficiently addressed its concerns, it was not necessary to raise the article IX, section 9 issue, and constitutional issues are to be avoided when a case can be resolved on other grounds. However, while the University's view prevailed in AGSE, the court in Regents and the PERB ALJ in the case at bar determined that certain- . .s.tudent vacade.miG- emp-le¥ees ~•are,.,entit·led to·,HEERA coverage. Thus, the University concludes: The ALJ's departure from Board precedent, and the decision of the Supreme Court in the housestaff case, in which the constitutionai 17
issue was not addressed, make it necessary now to appraise the Board of the constitutional issues we have sought to avoid, and to urge an interpretation of the statute which is consistent with the powers and duties assigned by the Constitution to the Legislature and the University respectively .. The Board declines to adopt the interpretation of HEERA with regard to this constitutional issue which the University advances. PERB is an administrative agency, established in Government Code section 3541, and expressly charged with the authority to· administer the HEERA (HEERA sec. 3563). Article III, section 3.5 of the California Constitution states: An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: (a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellatecourt has made a determination that such statute is unconstitutional; (b) To declare a statute unconstitutional; (c} To declare a statute unenforceable, or to refuse to enforce a statue on the basis that federal law or federal regulations prohibit the enforcement of such a statueunless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations. [New sec. adopted June 6, 1978.J While the University does not seek from PERB a ruling that the HEERA is unconstitutional, it asks the Board to conclude that student academic employees do not meet the subsection (f) test 18
because of the constitutional constraints imposed by Article IX, section 9. A Board decision adopting the University 1 s argument would represent a finding that the subsection (f) test is constitutionally unenforceable with regard to student academic employees. The issue of HEERA coverage of student academic employees has been before the appellate courts in two prior cases, but neither the University nor the court has raised this constitutional issue in the application of the subsection (f) test in those cases. As a result, there has been no appellate court determination on the issue. Prior to such a determination, PERB has no power, pursuant to Article III, section 3.5, to make the finding which the University urges it to make. At such time as this issue is presented to an appellate court, the court no doubt will consider HEERA's specific references to the University's constitutional status and responsibilities. Section 3560(c) states, in pertinent part: The people of the state of California have established a system of higher educationunder the Constitution of the State of California with the intention of providing anacademic community with full freedom of inquiry and insulation from political influence in the administration thereof. Section 3560(d} states: The people and the aforementioned higher education employers each have a fundamental interest in the preservation and promotion of . :the- :r:esponsib:il:it::ies-~grank:;ed,.by·~the pe·ople' of the State of California. Harmonious relations between each higher educationemployer and its employees are necessary to that endeavor. And Section 3560(e) states, in pertinent part: 19
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 conditionsof employment which affect them. It appears from these.references that the Legislature was well aware of the University's constitutional status, and intended that the system of collective bargaining which it established in enacting the HEERA would not interfere with the University's constitutional authority over its central functions. The University asserts that HEERA coverage of student academic employees interferes with several of those central functions, including the academic' aspects of the administration· of the University, the establishment of curriculum, and the establishment of patterns of internal governance. However, consistent with the Legislature's acknowledgment of the University's constitutional responsibilities, HEERA specifically excludes from the scope of representation 11 any service, activity or program established by law or resolution of the regents or the directors," as well as 11 the content and supervision of courses, curricula and research programs." (HEERA sec. 3562(q).) Further, HEERA seeks to preserve and encourage the.relationship between the University and its academic employees which is· 11 the long-accepted manner of governing institutions of higher learning. n (HEERA sec. 3561(b) .) 20
The University argues that HEERA interferes with its central functions in violation of the constitutional restrictions only with regard to student academic employees. When HEERA was being drafted, the University asserts, it voluntarily agreed to a system of collective bargaining without raising the constitutional issue, provided that subsection (f) was included in the statute to make clear that HEERA coverage does not extend to student academic employees. 5 The Regents court looked to the legislative history of the HEERA to determine whether the Act precluded the housestaff at issue in that case from being considered employees under subsection (f). The court noted that housestaff are clearly not eliminated from HEERA coverage by the language of subsection (f), and stated: Although the statute is silent on the subjectof housestaff, it clearly leaves open the possibility that such persons may come within it. As the words of the statute make clear,the Legislature intended that PERB determinewhether a particular student qualifies as anemployee under the Act. [Regents at p. 607.J Clearly, the ranguage of subsection (f) does not mandate that student academic employees be excluded from HEERA coverage. Rather, it establishes the test for determining whether coverage should be extended to them. PERB's primary right, power, duty and responsibility, as described in HEERA section 3563(a), is "To determine in disputed 5 Interestingly, the University has voluntarily extended HEERA collective bargaining rights to certain student academic employees at the Berkeley campus, including readers and tutors. 21
cases, or otherwise approve, appropriate units." It is PERB's duty and responsibility to apply the subsection (f) test to determine whether the proposed unit in this case, consisting of student academic employees, is_an appropriate unit. The Board rejects the University's argument that PERB should find the application of the test to student academic employees to be in violation of the constitutional restrictions of Article IX, section 9. Application of the Statutory Test In order to determine if the student academic employees at issue in this case are entitled to HEERA coverage, the Board applies the three-part subsection (f) test described above. Part One: Is Employment Contingent on Student Status? With regard to GSis, readers, special readers and tutors, the ALJ finds that employment in these positions is contingent on student status. The parties offer no exceptions to this finding, which the Board adopts as its own conclusion. The ALJ finds that since non-students serve in remedial tutor and part-time learning skills counselor positions, employment in these positions is not contingent on student status. Based on this finding alone, employees in these positions are covered under HEERA pursuant to the subsection (f) test. The Board addressed similar findings by the ALJ in the UC San Diego case. The Board states: ... part one of the subsection (f) testrequires PERB in this case to determine 22
whether the employment of students as readers, tutors and associates is contingent on their status as students. The fact that the University may employ non-students to perform some of the same functions as these student employees is irrelevant to the Board's determination. (UC San Diego at p. 14; emphasis in original; fn. omitted.) The Board also noted that the court in Regents ·observed that the employees at issue in that case lacked 11 most ~ndicia of student status. 11 (Regents at p. 620.) However, the court did not apply a requirement of current registration as a student in order to proceed to apply the subsection (f) test. It is clear from the record that students employed in remedial tutor and part-time learning skills counselor positions were given preference for e~ployment because of their student status. While some non-students may be placed in these positions, under the approach adopted by the Board in UC San Diego, the employment of students in these positions is clearly contingent on their status as students. The Board concludes that the employment of students in all of the positions at issue, is contingent on their status as students. Thus, we reverse the ALJ's contrary finding with regard to remedial tutors and part-time learning skills counselors. 6 6 Member Dyer agrees with the ALJ's determination that the employment of remedial tutors and part-time learning skills counse1ors is--not. c-ent4:ngent:"'On ·their status -as,.·students and that, consequently, they are employees under HEERA. Accordingly, Member Dyer does not join in the Board's analysis of Part One of the statutory test with respect to those positions. However,Member Dyer agrees that the application of the remainder of the statutory test also leads to the conclusion that student academic employees in all the disputed positions in this case are 23
Part Two: Are the Services Provided by the Student Employees Related to Their Educ~tional Objectives? The ALJ finds that the services provided by student employees in all the disputed positions are related to their educational objectives. The parties offer no exceptions to this finding, which the Board adopts as its own conclusion. Part Three - Prong One: Are the Educational Objectives of thestudent Employees Subordinate to the Services They Perform? The ALJ finds that the educational objectives of students employed as GSis, readers, special readers, tutors, remedial tutors and part-time learning skills counselors are subordinate to the services they perform. The University excepts to this finding, arguing that employment in these positions is of greater value and effectiveness in meeting the educational objectives of students than in providing services to the University. Employment in the positions at issue assists student employees in meeting their educational objectives. Those objectives include mastering a particular subject matter, and preparing the student to achieve educational and career goals. The University asserts that the services provided by student academic employees could be provided as well, if not better, by non-students at an equivalent or reduced overall cost to the University. Therefore, argues the University, under the AGSE court guidance, the value and effectiveness of the employment in meeting educational objectives employees under the HEERA. Therefore, Member Dyer specifically joins in the Board's analysis of Parts Two and Three of the statutory test. 24
is greater than its value and effectiveness in providing services. Thus, the educational objectives of these student academic employees are not subordinate to the services they perform, and they fail to meet the first prong of this part of the subsection (f) test. The Board disagrees. Under this prong of the subsection (f) test, the Board, on a case-by-case basis, must consider all the ways employment in the disputed positions meets the educational objectives of students, and all the ways it provides services to the University. PERB must then "make a value judgment about whether the employment was more valuable and effective in meeting educational objectives or in providing service to the University. 11 (AGSE at p. 1143.) The Board is not expected to engage in a scientific weighing process, but to exercise its judgment about which factor - service or educational objectives - is subordinate. In Regents, the court applied this part of the subsection (f) test by considering whether "services must be performed without regard to whether they will provide any educational benefit" to the students, performing them. The Board in UC San Diego exercis'ed its judgment and determined that the employment was not vital to students' ability to achieve their educational objectives, but that the services performed were vital to the University's ability to accomplish its mission. Here, the record establishes that while employment in the disputed positions contributes to the accomplishment of 25
educational objectives, it is not vital to achieving them. It can not be concluded from the evidence that students deprived of the opportunity for employment in these positions would fail to achieve their educational objectives. Instead, it is reasonable to conclude that affected students would find other means to accomplish those objectives, as do the many students who currently do not serve in the positions in· dispute in this case. Conversely, the services performed by the student academic employees in dispute are vital to the University and must be performed without regard to whether they provide any educational benefit to student employees. The University asserts that these services can be provided more efficiently and effectively by non- students, but does not suggest that they can be eliminated. The University implicitly acknowledges the need to maintain these services in order to achieve its mission, regardless of whether the services are performed by students. 7 The Board concludes that employment in the disputed positions is more valuable and effective in providing service to the University than in meeting the educational objectives of students. Therefore, the Board adopts the findings of the ALJ that the educational objectives of the student academic employees 7 Non-students performing the services provided by student employees •-in•••theM di-si;:.iu,t:.-e,d ···posit·:i:ons·"wou:ld·•be ~emp'l"oye·es entitled to HEERA coverage. The University's response to the request for recognition petition includes the assertion that any non-students in these positions should be placed in the existing systemwide non-academic senate instructor bargaining unit, or a separatesystemwide unit, for purposes of collective bargaining underHEERA. 26
at issue in this case are subordinate to the services they perform. Part Three - Prong Two: Would Coverage of the Student Employees Under HEERA Further the Purposes of the Act? The University excepts to the ALJ's finding that HEERA coverage of the student academic employees at issue would further the purposes of the Act. As in UC San Diego, the University asserts that since the Board in Regents (AGSE} found that HEERA coverage of GSis at the University's Berkeley campus would not further the purposes of the Act, the Petitioner in this case has 11 the burden to come forward with evidence of circumstances that did not exist in 1985 ••• and to show that these changed circumstances require a rejection of the Board's prior determinations." The University argues that the ALJ did not require the Petitioner to meet this burden and, therefore, applied the wrong legal standard under this part of the subsection (f) test. The University seeks to create a burden for the Petitioner beyond that which was intended by the Board. As noted in the procedural history above, the Board in Regents of the University of California (1995) PERB Order No. Ad-269-H affirmed the ALJ's Ruling on Order to Show Ca~se why GSis and GSRs should not be dismissed from the petition in this case in light of the court's AGSE decision.. -In .... bo,neluding·•that,the ·•p0s-i:ti"Ons ·should not be dismissed from the petition, the ALJ determined that the unique circumstances of each campus, as well as changes and developments occurring in the ten years since the AGSE record was developed, 27
should
be
considered.
It
was
not
the
Board's
intent
in
affirming
the
ALJ
1 s
ruling
to establish
a
burden under
which
the
Petitioner
would
be
required
to
present
a
detailed
comparison
to
the
AGSE
Berkeley
record
in
order
to
demonstrate
specific
changed
circumstances
at
UCLA.
Instead, the
Board
intended
that
the
circumstances
relating to
the
disputed
UCLA
positions
should
be
·
examined
in
detail
in
reference
to
the
prior
cases, including
AGSE.
However,
,the
application of the
subsection {f)
test
to
student
academic employees must
occur
on
a
case-by-case
basis,
based
primarily
on
the
unique circumstances
of
a
particular
campus
at
the
time
the
test is
applied.
Questions
of representation are inherently
dynamic.
As
a
result,
the
Board
has
long
held
that
representation matters
are
subject to
periodic
re-examination,
especially
where
no
representative
is
in place. Prior unit
determinations are
binding only nto
the extent
that
circumstances
are the
same
and
Board
precedent
remains
the
same.
11
{Regents
of the University of
California
{1986)
PERB
Decision
No.
586-H
at
pp. 6-7; see also,
State of California
(Department
of
Personnel Administration)
(1990)
PERB
Decision
No.
794-S.)
In
Regents
(AGSE),
the
Board
considered conditions
and
job
duties existing
at
the University's
Berkeley
campus
in
1984.
In
UC
San Diego,
conditions
and
job duties existing at the
San Diego
campus more
than ten years
later
were
considered.
As
noted
above,
these cases provide the
Board with guidance, but the
Board
1 s
responsibility remains
to apply the subsection {f)
test
28to determine the status under HEER.A of student academic employees in the disputed positions at UCLA based on the record in this case. The University offers extensive argument in support of its position that HEERA coverage of student academic employees will not further the purposes of the Act. The University points to HEERA section 3561(c), which states: It is the policy of the State of California to encourage the pursuit of excellence inteaching, 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 theUniversity of California, Hastings College of the Law, and the California StateUniversity. The University asserts that this section demonstrates that the extension of collective bargaining rights to student academic employees would not further the purposes of HEERA. According to the university, section 3561(c): ... is a legislative acknowledgement thatCalifornia's system of higher education has special and vital features that could be seriously damaged by the imposition of collective bargaining rights for student academic employees. The University misconstrues the meaning of section 3561(c) and misinterprets the purposes of HEERA. Those purposes are stated in HEERA sections 3560 and 3561. HEERA section 3560 states, in pertinent part: (a) The people of the State of Californiahave a fundamental interest in the 29
development of harmonious and cooperative labor relations between the public institutions of higher education and their employees. (d) The people and the aforementioned highereducation employers each have a fundamental interest in the preservation and promotion of the responsibilities granted by the people of the state of California. Harmonious relations between each higher education employer and its employees are necessary to that endeavor. (e) 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 theConstitution 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. HEERA section 3561 states, in pertinent part: (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. Thus, HEERA's expressed purpose is to foster harmonious and cooperative labor relations by providing for a system of collective bargaining between the University and its employees. 30
It is axiomatic that this purpose is furthered by the extension of collective bargaining rights to those employees determined by PERB to meet the subsection (f) test. The policy expressed within HEERA section 3561(c) 11 to encourage the pursuit of excellence in teaching, research and learning" is achieved 11 through the free exchange of ideas among the faculty, students, and staff of the University of California" and through a system which seeks 11 to preserve academic, freedom in the University of California." This is the very system established by HEERA. contrary to the University's contention, HEERA presents a framework under which the pursuit of academic excellence, the free exchange of ideas, the preservation of academic freedom, and collective bargaining all co-exist and complement one another. These purposes and policies do not inherently conflict with one another, and are not mutually exclusive, as much of the University's argument asserts. The University makes a number of specific assertions concerning the detrimental effects of extending HEERA coverage to student academic employees. Among them are: Collective bargaining would interfere withacademic policy because most subjects of bargaining have the potential to encroach on the academic domain. Collective bargaining could interfere with selection procedures for academic apprentice ... appo;i,,nt.meFtts, ••rep.J:aeing · aeadem±c considerations with economic considerations. Collective bargaining would interfere with the academic senate's role in making academic policy. 31
In considering similar arguments by the University, the court in Regents characterized the arguments as a 11 doomsday cry" which was 11 somewhat exaggerated 11 and 11 premature. 11 Moreover, the court held that "The argument basically concerns the appropriate scope of representation." (Regents at p. 623.) HEERA contains extensive guidance and specific restrictions on the scope of representation to ensure that providing collective bargaining coverage for employees will not interfere with the pursuit_of academic excellence and the academic policies and procedures which both the University and HEERA seek to preserve. For example, HEERA section 3562(q) (1) states that the scope of representation at the University shall not include: Consideration of the merits, necessity, ororganization 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. Therefore, the University retains the unfettered prerogative to determine what and how services, academic and non-academic, are to be offered and delivered. Thos.e services include those performed by student academic employees. Also, HEERA section 3562(q) (3) excludes from the scope of representation: Admission requirements for students, conditions for the award of certificates and degrees to students, and the content and supervision of courses, curricula, and. ---resea:r:-ch- 0 -pr-o(J£-amsr"'as bhos,e -terms •·are intended by _the standing orders of the regents or the directors. Therefore, any concern by the University that degree requirements and aspects of course work or research may become the subject of 32
collective bargaining with student academic employees is misplaced, as these subjects are outside of the HEERA scope of representation. Given these HEERA provisions, the University's assertions that collective bargaining for student academic employees would "encroach on the academic domain 11 or 11 interfere with selection procedures for academic apprentice appointments 11 are simply incorrect. Additionally, HEERA section 3652(q) (4) specifically excludes from the scope of representation: Procedures and policies to be used for the appointment, promotion, and tenure of members of the academic senate, the procedures to be used for the evaluation of the members of the academic senate, and the procedures for processing grievances of members of the academic senate. The exclusive representative of members of the academic senate shall have the right to consult and be consulted on matters excluded from the scope of representation pursuant to this paragraph. If the academic senate determines that any matter in this paragraph should be within the scope of representation, or if any matter in this paragraph is withdrawn from the responsibility of the academic senate, thematter shall be within the scope of representation. And HEERA section 3561(b) states: The Legislature recognizes that joint decisionmaking and consultation between administration and faculty or academic employees is the long-accepted manner ofgoverning institutions of higher learning and is essential to the performance of the .ed1,1ca.:tional--•mii:ssi0:ns -0·f:·-'these ·"1.nsti·tutions, and declares that it is the purpose of thischapter to both preserve and encourage thatprocess. 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 - 33
mechanisms
or
practices,
including
the
Academic
Senate
of
the
University of
California
..•
with
respect
to policies
on
academic
and
professional matters
•••
[t]he
principle
of
peer
review
of
appointment,
promotion,
retention,
and
tenure
for
academicemployees
shall
be
preserved.
Thus,
HEERA
specifically
provides
for the preservation
of
the
academic
senate's role
with
respect
to
academic
policy,
and
the
University
1 s
assertion
that
collective
bargaining
for student
academic employees would
interfere
with
that
role directly
contradicts the
statute.
To
the extent, despite
this
guidance,
that
disputes
arise
over whether
a
subject
is
within
the
scope
of representation,
HEERA
section
3563{b)
provides
that
PERB
shall
have
the
right,
power,
duty
and
responsibility:
To
determine
in
disputed cases
whether
a
particular
item
is
within or
without
the
scope
of representation.
Given
these specific
exclusions
and
safeguards, the
University
1 s
assertions that
HEERA
coverage
for student
academic
employees
will
not
further the pursuit of
academic
excellence
at
the University
because
it
will interfere
with
academic
policies,
selection
processes for
academic
apprentice positions,
and
the
role
of the
academic
senate, are
simply
incorrect.
As
the
Board
stated in
UC
San Diego
at
p.
31:
Coverage by
the
Act can not
and
will not
be
al
Lowed.,. t-o ,,under,cut·,.,bb.ese ~syst:~ms .
and
processes,
which
are singled out for
protection
and
preservation
by HEERA's own
terms.
34Based on this discussion, and the findings of the ALJ, the Board concludes that HEERA coverage of the student academic employees at issue in this case would further the purposes of the Act. SUMMARY The Board has applied the HEERA section 3562(f) test, and reached the following conclusions: - The employment of- students as graduate student instructors, readers, special readers, tutors, remedial tutors and part- time learning skills counselors is contingent on their status as students; · - the services provided by students employed in these positions are related to their educational objectives; - the educational objectives of students employed in these positions are subordinate to the services they perform; - coverage under HEERA of students employed in these positions would further the purposes of the Act. Based on these conclusions, the Board finds that students employed at UCLA as graduate student instructors, readers, special readers, tutors, remedial tutors and part-time learning skills counselors are employees under HEERA, and that a unit consisting of these positions is appropriate for negotiating with the Regents of the University of California at the Los Angeles campus, provided an emplqyee organization becomes the exclusive representative of that unit. 35
ORDER The following unit is found to be appropriate for meeting and negotiating at the University of California Los Angeles campus. The unit shall Include All: Graduate Student Instructors Readers Special Readers Tutors Remedial Tutors Part-Time Learning Skill Counselors The unit shall Exclude All: Graduate student Researchers Tutor Supervisors Managerial, Supervisorial and Confidential Employees, and All Other Employees. An election will be conducted by the PERB San Francisco Regional Director in accordance with PERB Regulation 51300 et seq. unless the University grants voluntary recognition pursuant to PERB Regulation 51330. The Board hereby ORDERS that this case be REMANDED to the San Francisco Regional Director consistent with the attached Notice of Decision and Notice of Intent to Conduct Election. Member Dyer joined in this Decision. Member Johnson's dissent begins on page 37. 36
JOHNSON, Member, dissenting: I dissent from the majority's conclusion that students at the University of California, Los Angeles campus serving as graduate student instructors, readers, special readers, tutors, remedial tutors and part-time learning skills counselors are employees for purposes of collective bargaining under the Higher Education Employer- Employee Relations Act (HEERA). I agree with the majority's treatment of the constitutional issue. I also agree that the record establishes that the employment of students in the disputed positions is contingent on their status as students, and that the services provided by these student employees are related to their educational objectives. I part company with the majority under the third, two-prong test in HEERA section 3562(f). In my view, the evidence clearly supports a determination under the third part of the statutory test that extending collective bargaining to student employees in the disputed positions would not further the purposes of HEERA and, therefore, the petition should be dismissed. My rationale for reaching this conclusion is the same as I explained in detail in Regents of the University of California (1998) PERB Decision No. 1261-H. Therefore, in the interest.of brevity I refer the parties to my dissent in that case. 37
PUBLIC EMPLOYMENT RELATIONS BOARD NOTICE OF DECISION AND NOTICE OF INTENT TO CONDUCT ELECTION R CASE: PERB Decision No. 1301-H (Case No. SF-RR-813-H) EMPLOYER: Regents of the University of California DESCRIPTION OF UNIT: The unit shall Include All: Graduate student Instructors Readers Special Readers Tutors Remedial TutorsPart-Time Learning Skill counselors The unit shall Exclude All: Graduate student Researchers Tutor SupervisorsManagerial, Supervisorial and Confidential Employees, and All Other Employees. ELECTION: A representation election will be conducted in the unit described above provided one or more employee organizations qualifies to appear on the ballot. However, pursuant to PERB Regulation 51330, if only one organization qualifies to appear on the ballot arid the organization has demonstrated proof of majority support in the unit found appropriate, the Regents of the University of California may grant voluntary recognition and notify the Board to cancel the election. INTERVENTION TO APPEAR ON BALLOT: ,J?u.r:;;;u.ant •. to,,PERB•,Regul-ation ·~id310, any· employee organization wishing to appear on the ballot in the representation election conducted in the unit listed on this Notice must file an intervention toappear on the ballot with the PERB San Francisco Regional Office within 15 workdays from the date
of this Notice. The intervention must be on a form provided by PERB and must be accompanied by proof of support of at least 10 percent of the employees in the unit. Proof of support is defined in PERB Regulation 32700. The last day to file an intervention to appear on the ballot in the unit described above is: January 5, 19990 This Notice of Decision is provided pursuant to PERB Regulation 51235. 2
STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD R THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Employer, and STUDENT ASSOCIATION OF GRADUATE EMPLOYEES, U.A.W., UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO, Petitioner. ) ) ) ) ) ) ) ) ) ) ) ) ) ) __________________ ) Representation Case No. SF-R-813-H PROPOSED DECISION (9/13/96) Appearances: Proskauer, Rose, Goetz and Mendelsohn, by Walter Cochran-Bond, Christopher M. Brock, Elizabeth J. Kruger and Maria E. Greckie, and Corbett and Kane by Sharon J. Grodin and Peter M. Chester, and Office of the General Counsel by James N. Odell, Attorneys, for the Regents of the University of California; Schwartz, Steinsapir, Norman and Summers by Margo A. Feinberg, Brenda Sutton and Stuart Libicki, Attorneys, for Student Association of Graduate Employees, U.A.W., United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Before JAMES W. TAMM, Administrative Law Judge.
TABLE OF CONTENTS P INTRO DUCT I ON 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PROCEDURAL HI STORY 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . JURISDICTION . 5 ..................... • ................. ·..... ISSUES 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . · FINDINGS OF FACT 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Background Regarding UC 6 LA......................... Common Factors 6 .......................... ·. . . . . . . . . . Graduate Student Researchers 7 Graduate Student Instructors 11 Special Readers 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Remedial Tutors/Part Time Learning Skills Counselor 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Readers 2 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tutors 26 ........................................ ·.... Educational Objectives of Student Employees 27 ....... Mentor Issues 31 Part-Time and Intermittent Employee Issues 34 . . ... .. . . . Grievance Issues 35 Information Flow 49 . . . . . . . " . . . . . . . . . . . . .. . . . . . " . . ": . . . . The Rhetoric of Conflict 50 . . . . . . ........ .. ..... ..... Other University Academic Units 52 . . . . ....... .. . ..... Credibility Findings 56 ... ............... ............ i
DISCUSSION 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indicia of Student vs. Employee Status 63 ........ .. .. UC Berkeley Precedent 63 ................... ;. ........ Analysis of Subsection (f) 65 First Test: Is Employment Contingent Upon Student Status? 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Second Test: Are Services Related to Educational Objectives? 68 .. . . . . . . . . . .. . . . . . . . . . . . . . . Third Test: Are Educational ObjectivesSubordinate to Services (Prong One) and Would Coverage Under the Act Further the Purposes of the Act (Prong Two)? 68 . .. .......... ...... Prong One: Are Educational ObjectivesSubordinate to Services? 76 ... . . .. ........... ........ GSRs 76 ............................ ·. . . . . . . . . . . . . GSis, Special Readers, Readers, RT /LS Cs and Tutors 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . Prong Two: Will Coverage Further the Purposes of the Act? 92 ..... ..... ... . . ............ ... GSRs 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . GSis, Special Readers, Readers, RT/LSCs, and Tutors 94 . . . . . . . . . . . . . . . . . . . . . . . . . . Freeflow of Information 96 .. . . . . . . . . . . . . . .. Mentor Issues 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . Work Stoppages 106 . . . . . . . . . . . .. ............. Academic vs. Economic Issues 1.09 . . . . . . . . . . . . ~·-· .. E.otenti.al.~Damage .. t,o, tbe~ .. statu-re of the University 113 . . . . . . . . . . . . . . . . . . . . . . . ii
Page Conflicts Between Services and Educat Objectives 113 ............. ..... Part-Time/Intermittent Employee Issues 116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limited Resources of the Universit 118 y..... Union Rhetoric 119 .......................... · Erosion Status Quo 120 .................. . Coverage Will Further the Purposes of the Act 121 . ,'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TUTOR SUPERVISORS 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Finding of Facts 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . scussion and Conclus 124 ion.......................... CONCLUSION 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PROPOSED ORDER 128 APPEAL PROCESS 128 iii
INTRODUCTION This decision is the second issued a series of representation cases which have been consolidated to avoid a duplication of records. The first decision (Regents of the University of California (10/20/95) SF-R-805-H (UCSD), involved coverage under the Higher Education Employer-Employee Relations Act 1 (HEERA or Act) for certain student employees at the University of California, San Diego campus (UCSD). This decision determines HEERA coverage for student employees in the classi cations of graduate student instructor (GSI), graduate student researcher (GSR), reader, special reader, tutor and remedial tutor/part time learning skills Counselor (RT/LSC) at the University of California, Los Angeles campus (UCLA). It also determines the supervisory status of tutor supervisors. In this decision, I first make factual findings about the positions and then apply HEERA section 3562(f). I conclude that GSRs are not employees as defined by HEERA, and that all other classifications in dispute are employees as defined by HEERA. I also find that tutor supervisors are supervisors as defined by the Act and therefore, should be excluded from the proposed bargaining unit. PROCEDURAL HISTORY On March 31, 1994, the Student Assoc ion of Graduate Employees, U.A.W., United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO (Petitioner or SAGE) filed 1 is codified at Government Code section 3560, et seq. PERB regulations are codified at California Code of Regulations, Title 8, section 31001, et seq.
this request for recognition seeking a unit readers, tutors, acting instructors, community teaching fellows, nursery school assistants,· teaching assistants, associates in ------ graduate student, teaching fellows, and research assistants employed at UCLA. On May 6, 1994, the San F~ancisco Regional Director of the. Public Employment Relations Board (PERB or Board) determined that the Petitioner had submitted proof of support sufficient to meet the requirements of HEERA. On May 23, 1994, the Regents of the University California (UC or University) filed its response to the Petitioner 1 s request for recognition asserting it was inappropriate because it included student employees who are not employees ·as defined by HEERA. The University also responded that to the extent the petition included non-student employees, those employees should be placed in a separate systemwide unit or accreted to the existing systemwide Non-Senate Academic Unit (Unit 18) . 2 On June 27, 1994, the Petitioner filed a request for a Board investigation pursuant to PERB Regulation 51090. 3 A settlement conference was held August 9, 1994, but the matter was not resolved. 2 The University offered no evidence or argument regarding the appropriateness of non-student employees being accre.ted intoUnit 18. 3PERB regulations are codified at California Code of Regulations, title 8, section 31001 et seq. 2
On September 12, 1994, Petitioner filed an amended request for recognition, which added the positions of special readers and remedial tutors. On September 19, 1994, regional director determined that the proof of support submitted with the original petition remained sufficient to cover the amendment. The University filed a new response to the amended request for recognition and denied for the same reasons it denied the original petition. On September 19, 1994, Pet~tioner filed a motion to consolidate the hearing this case with hearings for related, but not identical, requests for recognition at UCSD and the University's campuses at Davis and Santa Barbara. 4 At a prehearing conference on October 4, 1994, the parties made oral arguments regarding the Petitioner's motion to consolidate. The parties briefed the issue and on October 28, 1994, I granted the motion part, consolidating the records of the four requests for recognition. This assured that much the parties 1 cases offered at UCSD need not be duplicated in the other hearings. Petitioner's request for a single formal hearing for all four cases was denied. On December 22, 1994, I issued an order to show cause upon Petitioner as to why GSis and GSRs should not be dismissed from the petition based upon AGSE District 65 UAW, AFL-CIO v. PERB/Regents of the University of California (1992) 6 Cal.App.4th 4 The motion did not seek consolidation of the petitionsthemselves. At the time the motion was filed, the only petition set for formal hearing was UCSD (Case No. SF-R-805-H). 3
1133 [8 Cal.Rptr.2d 275] rev. den. August 13, 1992 (AGSE} . 5 The parties briefed the issue and on March 13, 1995, I ruled that GSis and GSRs would not be dismissed from the petition. and that the parties would be given the opportunity to fully litigate the positions during the representation hearing. 6 The University filed an interlocutory appeal, however, on July 17, 1995 ,. PERE. irmed the ruling on the order to show cause (Regents of the University of California (1995) PERB Order No. AD-269-H.) On October 16, 1995, after receiving additional information from the University about t le code usage, Petitioner amended the request deleting certain unused tutor title codes, acting instructors~ community teaching fellows, nursery school assistants and some unused GSR title codes. The amendment also added tutors in other various tit codes and part-time learning skills counselors. Another title code amendment was filed on October 30, 1995. Several prehearing conferences were conducted and 39 days of formal hearing were held between October 18, 1995 and January 10, 1996. Briefs were filed and the case was submitted for decision on July 16, 1996. 5 The Board's decision in the AGSE case is Regents of the .. .University .. of .. .Cali£Gr.n.ia e-(,1.9 . .a9) .. PERB •Beeisicm ~No. - 73 0-H(AGSE Bd Dec . } . . 6 The ruling was based upon two factors. The first was thatthe previous case only dealt with the UC Berkeley campus. The second was that circumstances m~y have changed since the UC Berkeley record had been developed. 4
JURISDICTION
The
University
is
an employer
within the
meaning
of
section
3562(h)
of
the
Act.
The
Petitioner
is
an employee
organization
within
the
meaning
section
3562(g)
of the
Act.
ISSUES
HEERA
section
3562(f)
(subsection (f)) provides:
11
Employee
11
or
"higher education
employee
11
means
any employee
of the
Regents
of the
University 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.
Thus,
the issues regarding
employee
status to
be
decided
this
dispute are:
{1)
Under
the
first test, is
employment
in the disputed
titles
contingent
upon
student status?
{2)
Under
the
second
test,
are the services
provided
by
the
student
employees
in
question unrelated to
their
educatioDal
objectives?
(3)
Under
the
third,
·two
prong
test,
are those educational
objectives subordinate to the services provided
(Prong One), and
does.
coverage under
..
HEER.A
..
.tu:r::tJ:J.e;r-
..
,t,he- ·pUFJ?K)Ses ·
of the
Act
(
Prong
Two)?
An
issue independent of
employee
status is
whether
tutor
supervisors are supervisors pursuant to
HEERA
section 3580.3.
5FINDINGS OF FACT Background Regarding UCLA The University is a public, state supported, higher education institution offering undergraduate and graduate instruction and.professional education. The University is. required to provide undergraduate education to the top one-eighth of California's high school graduates. It has exclusive jurisdiction in California public higher education over instruction the professions of law, medicine, dentistry and veterinary medicine. The University also has sole authority. to award doctoral degrees in all fields, either alone or jointly with the California State University system. The University has nine campuses. This decision concerns student employees on the UCLA campus. Common Factors While I make separate findings for each of the .disputed titles, there are some common facts among them. In addition to a salary, student employees in the disputed titles receive two significant benefits. First, they receive graduate student health insurance (GSHIP). Second, they are eligible for registration and educational fee remissions. Student employees in the disputed positions are required to perform all the same functions, complete 1 the paperwork and satisfy all coursi requirements as all other students. They also f 1 out employment forms, tax forms, timesheets, etc., like other employees. 6
Graduate Student Researchers GSRs generally are hired to perform research under the direction of a faculty member. GSRs are employed in two types of positions. One is on an hourly basis, typically working a limited number of hours for an individual faculty member who requires research for a book or other special project which the.·,: professor is working on. The GSRs in these positions are usually students in the field or discipline within which they are employed. The work they perform, however, is not tied to the student's own dissertation or course work. Faculty will often utilize GSRs to do hourly research such as computer work, library research, or data analysis. Some professors with substantial grants may simply hire GSRs as a means of funneling financial support to a student, asking for very little service in return. Some hourly GSRs, even though not working directly within their dissertation field, have been able to publish articles based upon hourly GSR work, and have learned valuable skills which may be helpful to them later their own research. Hourly GSRs constitute a very small perc~ntage of the total GSR funding. Funds for such employment usually come from faculty senate grants given to faculty members for the purpose funding their own research projects. The vast majority GSR funds are spent on the second type of GSR position, half-time positions attached to certain research grants. Most of these GSRs are in the sciences and engineering 7
fields. There are four levels of compensation for GSRs depending upon their experience and completion of academic milestones. The duties performed by GSRs in half-time positions vary greatly, depending upon the field of study and the experience of the GSR. A newly admitted graduate student might first be assigned to perform research of a very.basic nature. This has. two primary purposes. One purpose is to assist faculty members, post doctoral researchers (post docs) or other more advanced students with research grunt work. A second and more important reason, however, is to provide the student with an opportunity to learn basic laboratory research skills. Acquiring these skills is essential later success as a graduate student, and is done for the.education of the GSR more than for the smooth operation of the.lab. According to one professor, new GSRs "break more things than they fix." Once GSRs have picked up some basic skills and have a better idea of their field of interest, a mutual courting process occurs by which faculty and students select each other. Students seek a dissertation chair and committee members, while faculty members seek bright, energetic graduate students whose research interests are a match for the research conducted their laboratories. When the process works well, the faculty member becomes not only a dissertation chair, but a mentor to the student, assuming a certain responsibility for the success of that student. Along with the acceptance of a student into the faculty member's lab 8
comes a perceived, if not official, obligation to make efforts to secure financial support for the student. While some students bring their own funding source with them (e.g., National Science Foundation grants), most GSRs are funded through grants obtained by the faculty. Many grants .are obtained by faculty for the sole purpose of providing training funds for GSRs. Several faculty members testified that obtaining grants to provide for GSR funding was one of the most time consuming obligations inherent in accepting graduate students into their labs. Many agencies provide grants with sufficient flexibility to divert funds into the projects of graduate students which are only loosely related to the original line of inquiry. Most grants include some portion of funding for the principal investigator as well as for the graduate student. Approximately 40 percent of all research grants go directly to the University as overhead expenses. Typically all equipment purchased with grant funds also is retained as University property at the conclusion of any project. As part of their role as mentors, faculty will often co author scholarly research papers, assist and/or encourage GSRs attendance and presentation at conferences and meet regularly with students to supervise their research and dissertation efforts. The relationship between GSRs and their faculty mentors typically constitute a stronger bond and are more time consuming 9
than relationships between other student academic employees such as GSis and their supervising faculty members. Most GSRs have either jointly published research papers with their faculty supervisor or expressed a des to do so at some point during their educational .program. These.papers are.usually based upon research paid .for at least part by the GSR funding ... These papers not only help build the GSR's curriculum vitae, but sometimes may be reworked into their dissertation. To be appointed as a GSR, an individual must be an admitted and enrolled UCLA graduate student. While there is a great deal of overlap of job functions among GSRs and other university positions, such as post docs or a variety of staff research assistants, these other individuals are placed in distinctly different job classes, typically with different pay and responsibilities. While GSRs typically serve in 50 percent appointments, this time limitation has little practical meaning in most cases. Unlike all other disputed titles, in most cases it is virtually impossible to distinguish between the time a student performing paid work as a GSR from the time spent on non-paid status performing the student's own dissertation research. This is so simply because most GSRs are essentially paid by the University to perform their own research upon which they will base their dissertation. 10
Graduate Student Instructors In this decision, the term GSI refers to teaching as~istants, teaching associates and teaching fellows. Placement into these three titles depends upon the individual's teaching experience ·and completion of various educational milestones in• the student's degree program. Salaries also increase with experience through·several levels. The salary schedule has been determined by the University in an effort to remain compet ive with other major universities. An uncompetitive salary scale would result in the most promising graduate students seeking their degrees at other universities. Most GSI positions are 50 percent appointments, although some are at 25 percent. With 50 percent appointments, students may still be considered full-time students for funding purposes from the state. A 50 percent appointment.provides that GSis should be able to perform their duties within 20 hours per week, averaged over the course of the appointment. Because workloads vary a great deal from week to week depending upon factors such as exam schedules or major assignments, the workload may often greatly exceed 20 hours one week and be substantially below the next. Although several witnesses testified that it was impossible to do their job in a conscientious manner within the 20 hour average per week, a greater number testified that it was usually sufficient. Newer, less experienced GSis, or those teaching in unfamiliar subject areas would naturally need to put in more time than an experienced GSI teaching the same course for 11
the second, third or fourth time. 7 Some individuals apparently were simply given more work than could be accomplished within the 20-hour average, however, this seems to be more the exception than the rule. The duties of GSis 1 into two major categories: . teaching courses and leading discussion or lab sections. A great number of the GSis teaching courses are within language departments or English composition. For example, almost 1 Spanish I through V courses are taught by GSis. Thus, it not only possible, but extremely likely that an undergraduate student could be taught five days a week, one hour per day through this entire Spanish series and not have a single class meeting with a regular faculty, member. Sixty percent of English III (writing, composition, rhetoric and language) courses are taught by GSis. Ninety percent of English IV (critical reading and writing} are taught by GSis. In classes taught by a GSI, there is no distinction from the undergraduate student's point of view between the GSI and a regular faculty member. The course catalog does not distinguish them. Course credit and tuition are also the same. GSis teaching a course are responsible for each day's lessons, designing and grading homework and quizzes and holding office hours. If mid-term and final exams are part of the 7 In a 1993 survey conducted by the University, 41 percent of those responding stated that they had, at once, served as a GSI for a course that required an average work week of more than 20 hours. That number dropped to 23 percent when asked about courses taught after they had become a more experienced GSI. 12
course, they are sometimes jointly drafted with other GSis and/or the departmental supervisor in an fort to maintain consistency among the various sections of the course. In theory, GSis teaching a course are supervised and observed by a faculty member who sets the curriculum, writes the• syllabus and has final responsibility for grading. In practice, however, GSis teaching a course do not appear to receive much supervision or observation. A syllabus is often provided to GSis by the department to assist in some of the course planning. However, all of the actual teaching and grading of undergraduate students is done by the GSI. A very limited number of GSis also have the opportunity to teach a course through the Collegium program. To be igible, a GSI must have formally advanced to do.ctoral candidacy and had at least two years of GSI experience, or approved teaching experience at a comparable institution. Collegium courses are designed by the GSI and are typically related to the GSI's own dissertation research. Collegium GSis are selected through a highly competitive process and it is c9nsidered an honor to be given the opportunity to teach within the program. The Collegium provides for a weekly seminar prior to the actual teaching quarter, within which the GSI designs the course, develops a syllabus, selects instructional materials and determines pedagogical approaches. GSis receive course credit for this seminar and do not receive pay. Once they begin 13
teaching their courses, however, they receive pay and are responsible for literally every aspect' of the course. The second general category of GSI employees are those serving as instructors for discussion or lab sections attached to large undergraduate lecture . courses. A lecture course might, ;for example, have 250 students and 10 sections scheduled with approximately 25 students per section. Section or lab meetings are typically scheduled once or twice per week with GSis explaining and/or augmenting materials introduced during larger lecture classes conducted by faculty. GSis are required to hold regular office hours and will typically also hold review sessions· prior to midterm and final exams;- GS Is assign and grade homework., assignments and projects which are usually based upon general guidelines determined by the faculty member teaching the course. Supervision of section GSis varies a great deal depending upon the experience of the GSI and the inclination of the faculty member. Some faculty provide GSis with an opportunity to present a lecture to the large class undergraduate students and other faculty may choose to observe GSis leading a lab or discussion section. GSis can learn helpful teaching skills through discussions with the faculty supervisors. Issues such as teaching styles, presentation of course material and grading philosophy are sometimes discussed during faculty-GSI meetings. Although some faculty take a great interest in and meet regularly with GSis, offering pedagogical advice and support, this is not, however, the norm. Typically, GSis meet with the 14
faculty member at the start of the quarter to discuss strategies and expectations. They may also meet prior to major assignments or exams. Even in situations where regular meetings are held, they appear to be primarily for the purpose 'ensuring the quality of the education being delivered to undergraduate students rather than a method teaching pedagogy. The level of supervision provided by faculty to GSis does not, in most cases, rise to the level of a mentor/student relationship. This is primarily because the most significant graduate student-faculty relationship is between students and chairs dissertation committees. Faculty witnesses regularly refer to students for whom they were.the dissertation chair as "my student. 11 While faculty sometimes serve in both the roles of supervisor of the GSI as well as that GSis dissertation chair, it is more ·often not the case. The ationship between GSis and their faculty supervisors. is underscored by the contrast between GSis and GSRs. GSRs are supervised primarily, if not exclusively, by the same person overseeing their dissertation research. In most cases it is hard to tell when GSRs are being supervised in their role as GSR, as opposed to their role as students working on their dissertations. It is typically very easy to make a distinction between the teaching work of a GSI and that individual 1 s own educational program leading to their degree. It also typically easy to determine whether GSis are being supervised in their role as GSis or in their own research. 15
Prior to the fall quarter each year, the Office Instructional Development holds a one-day campus-wide orientation session for new GSis. GSis may attend a variety of presentations on issues such as office hours, motivating students, math anxiety, sexual harassment, meeting the first class, diversity within the classroom, etc. Most GSis are also required to take a quarter-long "495 course" prior to being employed as a GSI. The course varies depending upon the type of teaching the GSI will be doing. For example, a language department 1 s 495 course might cover issues such as second language acquisition, whereas a lab section 495 course might cover issues such as lab safety. GSis receive credit but no pay for the 495 course. In addition, some individual departments sponsor voluntary workshops dealing with the particular intricacies of their department. These workshops are also open to recently hired lecturers. GSI's also receive credit for taking a 11 375 course" teaching practicum while they are employed. No instruction is provided as part of receiving this credit. The 375 course counts only toward status as a full-time student and does not satisfy degree requirements. It is very rare for departments to require service as a GSI as part of their educational program. The staffing ratio of all GSI positions, ·except those teaching in the Collegium, is determined primarily by the needs of the department to staff undergraduate courses and the amount 16
of available funds. 8 As such, GSI staffing is enrollment driven, based upon the number of undergraduates to be educated, rather than the number of graduate students seeking teaching experience or pay. Funding for GSI pos ions comes from state revenues that are allocated to the campus by the Office of the President and then to departments by the chancellor and the academic deans. These funds come from the same source and are interchangeable wi funds used for other instructional employees such as lecturers. Selection methods vary among departments. Some departments with more graduate students than open positions use a highly competitive complex algorithm to select GSis based upon many factors including academic achievement. Other departments which have greater undergraduate needs and fewer graduate students advertise throughout related fields just to secure enough GSis to fill their open positions. All selection processes are merit based, however, as opposed to need based. Therefore, the financial need of the GSI is not a selection factor. The University does have a variety of financ aid services available to graduate students, some of which may include employment, but not in the titles disputed in this hearing. 8 Those participating in the Collegium are selected on a compet ive basis. This last year there were only eleven graduate students participating in the Collegium of UniversityTeaching Fellows (CUTF). Given the limited number of participants in the Collegium, their experience is only marginally helpful in deciding the GSI issue. 17
Employment as a Gsr·is limited to 12 quarters unless an exception is made based upon the educational advantage to the GSI. The University specifically prohibits granting exceptions to the 12-quarter rule based simply upon the need to staff courses. When teaching either a course or section meeting, the GSis play a vital role in the accomplishment of University's teaching mission. The evidence quite clear that without the services currently provided by GSis, the University would not be able to accommodate undergraduate programs. Professors would not be able to teach large lecture courses. Undergraduates would receive very little personal attention. Writing assignments would have to be curtailed and tests would need to be restructured utilizing easily graded questions such as multiple choice rather than essay exams. In short, the University's teaching mission would suf irreparable harm without the services currently provided by GSis. The University offered evidence that it could provide those same services in an economically feasible manner utilizing non students, without doing damage to the educational program. The University would simply hire non students such as post docs or local part-time community college instructors, high school teachers or unemployed aerospace engineers to fill the huge void if students were not utilized as GSis. To be appointed as a GSI, an individual must be admitted and enrolled as a UCLA graduate student. While there is a great deal 18
of overlap of job functions between some GSis and post docs, lecturers, or other regular UCLA faculty, these other non students are placed in distinctly different job classes typically with different pay and different responsibil ies. The.percentage of graduate students employed as. GSis varies. greatly among departments, depending upon several factors, such as the amount of alternative fellowship and GSR funding available, and the number of undergraduate students served by bhat department. For example, in language, biochemistry and chemistry, departments with large numbers of undergraduate students to educate, 100 percent graduate students receiving their degree this past year were employed as GSis at least once during the graduate programs. At the other extreme are departments without large undergraduate programs and with a significant amount of GSR funding. For example,· geophysics and space physics had only 13 percent of graduate students serving as GSis and nuclear engineering had only 20 percent. Special Readers The special reader class is used only on the UCLA campus. It was approved in the early 1980s in response to a need foF assistance which was more advanced than readers or GSis. The expectation was that providing a classification with a more advanced qualification and pay scale would stop use of GSis and readers advanced courses. Special readers usually function much the same as GSis except they work in upper division or graduate courses. They 19
teach sections, hold office hours, and assign and grade homework, exams and projects. Some special readers serve in unique appointments. For examp , one special reader in the advanced directing program within the film and sion department supervised film projects. In that role, she assigned,.crew members and organized, the scheduling of film shoots throughout the year. She not only scheduled use of equipment, but also organized how insurance would be obtained for the students. Appointments as special readers are made by the faculty member the department has allocated a position to a course. Appointments.are made on an.hourly bas.is and pay is equal to or greater than the pay received by typical GSis. Non-students have never been appointed as special readers. Remedial Tutors/Part-Time Learning Skills Counselors Prior to the summer of 1995, individuals staffing jobs were hired into the remedial tutor class. This created a problem because the program wanted to hire non-students into these positions and the remedial tutor class was reserved for students. In response, the UCLA personnel office suggested they use the learning skills counselor title code. From then on all new hires, both students and non-students, were hired as learning skills counselors. A few individuals who had already been hired remained in the remedial tutor title. Since individuals in both titles are currently performing the same duties, I will re to 20
them as remedial tutors/part time learning skills counselors (RT/LSC). RT/LSCs work for the Office of Student Support Services whose purpose is twofold. One is to provide academic and psychological personal support £or medical students~ The.second is for outreach and recruitment of under-represented minority. students into medical school. RT/LSCs are used in two major areas. The first is during the academic year where they are used to conduct review sessions, do one-on-one tutoring and work in small groups with first year medical students. The RT/LSCs used in this manner have in the past been advanced UCLA medical students. The RT/LSC's subject matter knowledge, ability to do the job and availability are the primary criteria for selection, according to Patricia Pratt, Director of Student Support Services for the School of Medicine. One witness who had been involved in recruitment of RT/LSCs stated that an interest teaching was something they looked for in candidates. Students who sought the job as a method of refreshing their knowledge for board exams tended to be rejected. The second area of employment for RT/LSCs is during the summer session, which has different programs. One is a three week pre-entry program where RT/LSCs run ·small group study sessions teaching pre-med students how to study the medical curriculum. Another is an eight-week program called UCLA Prep. It is a pre-medical school enrichment program to teach undergraduate students subjects which are prerequisites to 21
medical school. The program is funded by the U.S. Department of Health and Human Services and federal grants targeting both outreach and retention efforts. The summer program is not limited to UCLA pre-med undergraduate students, but rather is open to students throughout the United States. RT/LSCs are hired both instructor and GSI roles, teaching learning skills, communication skills, personal development and career development. With the assistance the learning skills director, they set the curriculum, develop a syllabus, develop, administer and grade assi$nments and examinations and evaluate the student's performance. Recruitment for the RT/LSC class is so broader than UCLA. Job announcements are distributed throughout the Los Ange area, although UCLA medical students are given a preference. Non students hired typically have a master's degree or doctorates in the subject area and often have teaching experience at either the community college or university level. RT/LSCs who are medical students benefit from occupying this pos ion by increasing their subject matter knowledge, and developing their teaching skills, as well as benefitting them economically. Readers The reader position at UCLA is virtually identical to the reader position at UCSD. Readers assist the University's teaching mission by reading and grading homework assignments, quizzes, midterm and final exams, and papers. Readers have some 22
regular ongoing responsibilities throughout the quarter, but more commonly, their duties involve sporadic activities usually concentrated in intense periods around midterm and final exams. The University's academic personnel manual (APM) 420.10 provides that readers will usually be graduate .or undergraduate students. However, it also provides that non-students may be employed to meet ·. needs of the University. While extremely rare at UCLA, non-students have been employed in the reader position. This appears only to have happened when an individual dropped out of school during a quarter and was allowed to remain employed for the remainder of the quarter. Readers at UCLA are typically selected by professors and are appointed by the department chair after the position is funded. Readers and the supervising faculty members typically meet prior to the start of the quarter to discuss expectations and assignments. Readers and faculty members also will typically meet during the quarter to discuss major writing and grading assignments, such as midterm and final exams. The time for which readers are paid is spent almost entirely performing grading duties as opposed to meeting with faculty discussing pedagogical issues. The amount of pedagogy discussed varies among faculty, though it does not appear to be substantial in most cases. Readers are sometimes requested to attend lectures, but it is not typically considered part of the job duties. Since readers have already typically taken the course or its equivalent, they usually are already familiar with the material. 23
Readers receive no course credit for the dut they.perform. The financial need reader applicants is typically not taken into consideration in either the application or selection process, nor are salary levels keyed in any way to financial needs of individual readers. Graduate students are paid more than undergraduates in recognition of their. additional,, expertise. Commitments fo~ reader positions are not included in letters of acceptance sent out by the University to students, which also details financial aid packages .. ' The reader staffing ratio is usually determined by departments based on a formula. Typically courses with a large number of writing assignments get more readers than those with assign~ents easier to grade. The most important factor in reader staffing, however, is the number students enrolled in the course. As such, reader ·staffing is enrollment driven and not a reflection of the employment needs readers. Readers have initial control over the extent of their employment. They are urged not to over commit by taking on more hours than they will have time to complete, given the academic schedule. By carefully considering the extent of a reader's commitment, is hoped-· 1' that conflicts between job dut and a , .. reader's own academic obligations will be avoided. · However, since job duties often intensify around the time of midterm and final exams, conflicts occasionally arise. When that happens, a reader's own studies may suffer because of the necessary priority of completing grades on time. 24
There is ample evidence in the record that readers are vital to the accomplishment of UCLA's teaching mission. Faculty hire readers because they are unable to grade all the papers and assignments themselves. Without the services provided by readers the educational program at UCLA (just like at UCSD) would have to be dramatically restructured with extremely negative pedagogica.L.,. results. Dr. Ellen Switkes, Assistant Vice President for Academic Advancement, Office of the President, testified that the University could manage without readers and tutors, but acknowledged that "it would be bad for the educational enterprise. 11 Dr. Switkes 's solution would be for faculty to read. more papers and assign fewer papers. Faculty who have already been required to increase their duties due to previous budget cuts would also.have to hold more office hours and either conduct tutorials in larger classes or eliminate them altogether. Dr. Switkes so indicated that GSis could perform more of these tasks. In other words, the University could eliminate work which has been highly valued or pass it on ,to other University· employees, including other student employees. There is evidence in the record that a large candidate pool exists outside the UCLA system which the University could tap into if it decided to replace .student employees with non-student replacement workers at competitive salaries. 25
Tutors The role of tutors at UCLA is also identical to that at UCSD, although the program organization varies somewhat. At UCLA there are two major tutoring programs. One is the College Tutorial Service (CTS) and the other is the Academic Advancement·· Program (AAP). Each of the programs offers individual and group, tutoring to UCLA students. The goal of the CTS is to assist students in becoming effective, independent learners. The CTS program has four distinct sub programs: English Composition, English as a Second Language, Math and Science and Athletic Tutorial. The first three provide basic tutoring and skill building in general subject areas rather than specific courses. They are open to UCLA undergraduate students (approximately 20,000); The Athletic Tutorial provides tutoring to UCLA athletes, tailored to specific courses they are taking. A vastly disproportionate larger number of CTS.tutors are assigned to the Athletic Tutorial program where they tutor UCLA's 400 athletes. The mission the AAP is the retention and graduation of students who come from historically under-represented communities. It has been an integral part of UCLA's affirmative action program. AAP also offers an intensive summer program designed to ass new and transferring students w.ith the transition into University life. The minimum qualifications to be hired as a tutor is an overall GPA of 3.0 and a GPA of 3.4 in their major. Tutors will 26 1
have typically received an A in the subject course they are tutoring. In the AAP, a selection criterion also includes the ability to work with AAP students. Many AAP tutors have themselves been former recipients of AAP tutoring. Tutors are hired on an hourly basis with a 50 percent maximum workload. Tutors are typically given itude in scheduling their tutoring sessions so that they do not interfere with their own coursework. Tutors receive training through a series workshops during their first quarter of tutoring. It includes roleplaying, video presentations, pedagogical discussions as well as various other issues ranging from tutoring ethics to logistics. When new tutors first start they are also assigned to a more experienced tutor to discuss issues which may arise. Once past the initial quarter, they tend to receive only a minimal amount of supervision and evaluation. An individual must a student to be initially.hired as a tutor. However, once hired, they may continue their employment for an additional three quarters after they no longer have student status, either by graduating or dropping out. Most tutors are undergraduates, although some continue on in the role as graduate students. Educational Objectives of Student Employees Individual educational objectives vary a great deal depending upon the student's history, current circumstances, progress in their degree program and vision of their future. 27
Testimony was wide ranging and sometimes diametrically opposed. Some students define the educational objectives as narrowly as getting.their degree and nothing else. Others seem to encompass every learning opportunity impacting both university related goals as well as future career and interpersonal goals.·· Educational objectives of undergraduate students· are often more,;,•'"'•· difficult to assess because their goals in general are more in flux and less defined at this stage of their academic life. Some witnesses also framed their testimony in terms of the student's motivation for seeking employment rather than their educational obj ecti ve_s. Several faculty members also testified about both the motivations and the general educational objectives of individuals seeking student employment. To the extent that faculty members were offering their own subjective views about the educational objectives and motivation about student employees, their testimony is speculative and not generally·persuasive. 9 Where faculty testimony is based upon objective factors such as 9 In determining the educational objectives of the student employees, the Supreme Court made it clear that PERB was to focuson the personally held subjective perceptions of the studentsthemselves . . . Moreover, nothing in the language of subdivision (f) even hints that the. Univ.e:r:s.ity' .. s .. suh~ecti:v:e,,percept4ons,. of,.the functions of housestaff dut should be taken into consideration. (Emphas in original; Regents of the University of California v. PERB (1986) 41 Cal.App.3d 601, 614 [224 Cal.Rptr.631](Regents) . ) . . 28
conversations with individual readers, that testimony is relevant. To the extent that faculty and staff have testified about discussions they have had with student employees, however, it is hearsay evidence and entitled to less weight than the direct testimony of student employees themselves, «which• was· subject to the scrutiny of cross-examination. While there exists great contradictions in some of the testimony offered about educational objectives, the educational. objectives of almost all the student employees at issue in this hearing can be summarized into two major objectives. The first is to complete their educational program and be awarded their degree. For undergraduate students this will encompass completion of course work. For graduate students, however, it encompasses much more. They must not only complete course work, but typically they must also learn research skills; select topics for their thesis or dissertation, form a dissertation committee, perform a substantial amount of original research; write a dissertation and defend it. The second major educational objective is to better position themselves for their next step after they receive their degree, whether that a career or an additional educational program. This educationel objective typically encompasses gaining demonstrable skills, building a strong curriculum vitae and building helpful relationships. The demonstrable skills typically sought include research, writing and teaching skills. Building a strong curriculum vitae typically includes publishing 29
papers, presenting research at conferences, being the recipient of prestigious awards and grants and gaining direct work experience· such as research and teaching. Building relationships typically encompasses mentor relationships within the university as well as professional relationships established-at conferences or through joint publication of research papers. There was also a wide variation about motivation for seeking employment within the classifications at issue. These can also be summarized into major categories. A motivation common to almost all student employees was that employment generated income and reduced the fees . 10 Although there were students who had other means of support or who would have sought the experience even if they had not been paid, they were quite rare and do not reflect an accurate cross section of student employees. Another rather universal motivation for seeking student employment was the desire to have a convenient job. These jobs are on campus and can typically be scheduled around the student's own academic program. Another common motivation for seeking this work is that it enhances one's resume or, in the case of undergraduate students, an application for graduate school. 10 Almost all student employees seek and accept student employment due to the money they receive. As the University correctly points out, however, the primary purpose test was ·rejected :by_.the .. Legisl.a.tur-e .... ,The,, t-.est:. ••not. ,to· decide whether the student's primary purpose taking the job was for educational or economib reasons. However, the student'smotivation for taking the job may shed some light on whether thevalue to the incumbent is educational or economic. If the student seeks the job for economic reasons, that may reflect lessvalue to the student employee's educational objectives. 30
Employment the contested positions is in many ways seen as a reflection of academic excellence and a way to distinguish one's self from the mass of other students. Other motivating factors for seeking employment which arose commonly, although not universally, were a desire-to gain teaching experience, to help other students, to interact with faculty and to gain subject matter knowledge. The desire to help other studen·ts seemed particularly strong in programs like AAP, where student employees have a strong personal identification with the goals of the program itself. The interest in interacting with faculty seemed more significant for those student employees attempting to organize their dissertation committee. Gaining subject matter expertise may be stronger motivation for student employees preparing for qualifying exams or entrance exams. 11 There was scattered evidence of other more individual motivations for seeking this employment. However, none seem as common as those listed above. Mentor Issues Mentoring is a well recognized aspect of graduate education programs in the United States. It generally reflects a relationship that is significantly more important than simply giving advice, answering questions or writing letters of 11 There is evidence, however, that the Office of StudentSupport Services actually screens out potential applicants who are interested in tutoring as a method of reviewing for their own board exams. 31
recommendation. In the context of this record, it denotes a relationship where a faculty member will take a graduate student or a junior colleague under his or her wing and offer intense collegial advice about issues including, but not limited to, the student's educational goals, research goals and. methods, . career objectives and opportunities, and the student's mastery of subject matter. Mentors will.often go well beyond writing letters of recommendation and will more actively help graduates in their search for employment. Mentors often remain available to the student for guidance long beyond the time period the two individuals are a mentor-student relationship. Numerous University witnesses testified about the importance of the mentor relationship for both graduate and undergraduate students and their fear that these relationships would be undermined by collective bargaining. UCLA's Interim Assistant Vice~Chancellor of Graduate Programs, Jim Turner, testified that graduate students without strong University mentors are greatly handicapped, tending to have greater difficulty getting strong ·1etters of recommendations, llowships and eventually jobs. Dean Duggan testified that mentor relationships exist primarily between Ph.D. candidates and their dissertation committee members, although some mentoring can take place within numerous other student faculty relationships. He stated that a good mentoring relationship is the most important factor for successful completion of a Ph.D. program. 32
Duggan believes that although not always the case, union representation of student employees could endanger the mentor relationship. An example he gave was when ·graduate students went out on strike in support of AGSE seeking recognition at the Berkeley campus in 1992. According to Duggan, many faculty .were very unhappy at having to take sides in the dispute. Some supported recognition·of,the union and others were against it. Some faculty were also quite upset at having to teach sections that had usually been taught by student employees. Duggan also believed was equally true that.many student employees felt resentment towards faculty for not supporting the strike. The bad feelings on both sides caused disillusionment and strain on the faculty student relationship. During the strike, Dugan, who was the University spokesperson at the time, was on the dissertation committee of Andy Kahl, an AGSE spokesperson. The strike created a strain in their ationship. However, their relationship resumed after the strike and Duggan continued reading Kahl's dissertation chapters. Duggan it was up to the two them to work through the strain created by the strike and that they were successful in doing so. According to Dr. Switkes, the mentor relationship could be disrupted if faculty were limited in any way in their hiring preferences of student academic employees. Switkes worries that collective bargaining "could disrupt the fluidity of the student 33
faculty mentor relationship by hardening the ways in which students and faculty work together. 11 Dr. Switkes testified further that it is very likely that a student's thesis adviser could also be that student's supervisor. This is very true for GSRs-, but typically not for. other disputed titles. A number of students have been supervised as GSis by faculty who have also been on their dissertation committee, and a few have even developed a strong mentor relationship primarily through the GSI-faculty supervisor setting. However, the depth of most student-mentor relationships seem to have developed more from the supervision of the students' dissertation research than from supervision of the GSI work. There are, of course, exceptions where GSis have developed mentor relationships only with their GSI supervisor and students who have not developed any mentor relationships within their dissertation committee. However, these are not the norm. Part-Time and Intermittent Employee Issues University experts testified that in their opinion, representation of part-time or intermittent. employees is difficult due to turnover and lack of continuity. Union witnesses, however, offered examples where part-time or intermittent employees such as grocery clerks have been successfully represented by unions. 34
Grievance Issues The vast majority of disputes involving student employees, both employment and academic related, are settled within departments through informal discussions. Student employees and faculty supervisors are encouraged to resolve matters at the lowest possible level through collaborative and informal efforts. Student employees may•· also ist advice and assistance of their faculty advisers, department chairs, provosts, and deans, if matters are not resolved between the student employee and the faculty member or supervisor. The University offered.evidence that conflicts at UCLA have been successfully resolved using informal methods. Dean Kathleen Komar testified that she has been able to resolve complaints on behalf students without having to reveal the identity of the student making the complaint. According to Komar, it is le.ss disruptive of student faculty relationships if complaints can be raised informally and confidentially within the department. Komar has found department ch~irs very cooperative when approached by peers, however, she fears a different reaction if they were faced with a more "legalistic" process. If employment related disputes are not resolved informally, a grievance may be filed. The grievance process for employment related grievances is set forth .APM 140. ,• l Student academic appointees are eligible togrieve a matter related to their assignments in the Teaching Assistant, Research Assistant, Reader and Tutor titles only. Student complaints pertaining to matters ofacademic standing or to non-academic matters 35
(e.g.,
discrimination) are
handled through
applicable student
grievance procedures.
The
grievance
procedure provides
a
multi-step
process
starting
with informal
review
and
proceeding through
a
formal
hearing process.
There
are specif timelines applicable
at
each
step of the process.
If
the grievance
is
not
resolved informally
at
Step
I
within
30
days,
it
can
be
appealed
to
Step
II,
where
the
grievance
is
reviewed
by
the appropriate
department head
or
dean,
and
a
written
response
is
issued
by
the University.
If
the grievance
is
not resolved
at
Step
II,
it
may
be
appealed
to
either
Step
III
.
(administrative consideration)
or
Step
IV
(hearing .consideration,).
but not both.
The
vice chancellor of
academic
fairs
determines
whether Step
III
or
Step
IV
is
the appropriate route for
appeal.
At
Step
III
(administrative appeal), the
grievance
is
reviewed by
the chancellor's
designee
and
a
written decision
is
issued.
If
the subject of the grievance
is
appropriate for
Step
IV,
the grievant
may
elect to
have
the grievance heard
by
either
a
University hearing
officer
(appointed
by
the chancellor's
designee),
a
three-member
University hearing
committee (each
side
selects
one
member
and
they,
in turn, select
a
third), or
a
non
University hearing
officer (selected
by
the
parties
from
lists
provided
.,by_. _the.
,American
...
A:rbJ..t..r~t•i:0n•Asse0iation·)
.
12
···
·
nThe
following subjects are appropriate for
a
Step
IV
hearing: nondiscrimination, layoff
and
involuntary reduction in
time, personnel records/privacy, holidays, vacation, sick leave
corrective action {censure, suspension, demotion), dismissal,
36Both the grievant and the University may be represented throughout the process. A record of the hearing is either transcribed or recorded. Both sides.have the opportunity to call and cross-examine witnesses and present documentary evidence. A statement of findings and recommendations is issued by the. hearing off or hearing committee and is forwarded to the chancellor or chancellor's designee. The procedure limits the authority of the hearing officer or committee from exercising academic judgment. The chancellor may adopt, modify or reject the findings and recommendations. However, modified or rejected, reasons must be given. The process also specifically states that: The use this policy shall not be discouraged by the University by any means, either direct or indirect. That admonition is not heeded in some cases, however. University witnesses testified that they actively steer students away from using the grievance process and into the student 1 s academic· appeals process. For example, Dr. Switkes testified: . students are not excluded from using that process. In other words the process, unlike some other policies in the APM, does not say students may not use this policy. However, my office has for many years and continues to advise that we can't think of any appeals or grievances that should be allowed under that policy from studentemployees. We advise that all student .. ,griev.ances and~-appeal..s get ,~harn:il:Led·,~through · the student appeals mechanism and not through the employment appeals mechanism. reprisal, and procedural irregularity in the personnel review process. 37
Switkes urges that such a grievance procedure not be used by student employees because she fears that any process having the potential to formally find a wrongdoing by a faculty member, or one which could lead to an order against a faculty member, could lead toretribution by that faculty member against.the,student employee grievant. Thus, according to Switkes, even though the faculty member may have been completely in wrong and a terrible grievance might be redressed, it could ultimately be damaging to the student employee grievant because faculty advisers and students are tied together for their professional life, and professors can exercise great power over students. Dr. Judith Craig, Associate Dean at the University Wisconsin at Madison, supported Switkes' testimony that any grievance process for student employees is problematic because of the potential for academic retaliation by faculty. Craig also opposes representation for student employees because she feels union involvement creates a more adversarial relationship. Craig testified as follows: I think that it is much better, it's more productive and tends to resolve issues better and faster if the union not involved. When the union is involved, I think an adversarial tone comes into the situation that is counter-productive. Craig also fears that a grievance process is problemat becaus.e arbi.t.r.ators.~might ... invG1v:e .. t;rhemse.J:-ves •in·•academic issues. In addition, faculty members might avoid taking appropriate ion simply out of fear that a grievance might be filed. 38
Dean Littlefield of UCSD also testified that allowing students to be represented makes the process more formal and hampers the parties' ability to settle a dispute in a collaborative manner. Littlefield referred to two instances where students had been accused of academic dishonesty. They both chose to be represented and Littlefield felt the process did not work as well as a result. The student brought in an attorney, and as soon as that happened, the faculty and department sort of backed away and decided that they weren't that interested in collaborating because the student was legally represented in this endeavor. These two cases were, however, the only two such cases Littlefield had experienced since she came to UCSD in 1979. Littlefield has never been involved in a grievance filed pursuant to a collective bargaining agreement, and she acknowledges that the right to file a grievance does not limit ·the parties' ability to settle the dispute informally. lefield's experience is that most often disputes involving student employees are tied to academic issues. According to Littlefield, while disputes rarely_involve only employment issues, there are cases such as denial of sick leave or assignment of too many hours, that do seem strictly employment related . . The._,evidence_.regarding .,gr,i@vances•at•·•Gther··universities is mixed. Union witnesses generally testified that grievance procedures provide an effective mechanism for employees to address concerns. Many said that such procedures tend to 39
depersonalize the issues raised, attacking problems and not people. In contrast, practically every University witness who has been involved in grievance processing convincingly disputed the idea that a grievance process depersonalizes complaints raised by student employees. A number of witnesses testified.about grievance.experiences at UC Berkeley. Dean Duggan does not believe that formal procedures, regardless of the nature of the substantive issues, tend to depersonalize conflicts. He believes that any time individuals are challenged, called on the carpet, or embarrassed, they tend to become defensive. Duggan's experience at UC Berkeley leads him to believe that union representation tends to make students think of faculty as a monolithic institutional body rather than as individuals. Duggan believes that conciliation is more difficult because faculty see themselves being perceived by students as members of a class, rather than individuals. This, in turn, leads to faculty defensiveness. The same can be said of other processes available to students, however. In the graduate student appeal process at UC· Berkeley, where academic conflicts may be raised, students have the right to a hearing and may be represented. If the student is represented by a lawyer, then so is the University, and the adversarial nature of the dispute is often ratcheted up to another level. Duggan also testified about two cases at UC Berkeley where grievances were filed by student employees against their mentors. 40
In one case there was no erosion of the mentor relationship and in the second, the personal relationship deteriorated. Duggan clearly prefers to resolve disputes before they get to a formal appeals process, whether is academic or employment related. Approximately 80 percent of the sputes. coming.,to Duggan are resolved informally. According to Duggan, however, most cases that get to the formal appeals process are just too difficult to resolve any other way. Debra Harrington, Manager of Labor Relations at UC Berkeley, testified that other processes, such as bringing disputes before the Graduate Council in a manner similar to academic disputes, would be less confrontational because is not a standard evidentiary process and does not necessarily involve having a faculty member come in and testify. Harrington believes such a .process would be more fective because it is difficult to separate employment and academic issues and the G~aduate Council would have the ability to look at the total relationship. Mary Ann Massenburg, International Representative with the United Automobile Workers (UAW}, testified that the University's concerns about arbit~ators intruding into academic judgments via the grievance process can be dealt with in a manner similar to other universities and industries where related issues have arisen. Massenburg cited examples of the UAW representing attorneys where the parties have successfully dealt with employer concerns about arbitrators making judgements regarding legal expertise, or with writers where employers want to maintain sole 41
discretion over editorial content and competence matters, or artists where the concern is over creative differences. Massenburg also testified that employment disputes over payroll processing, workload, emergency loans, pay, classification, termination, and layoff have been resolved through the use of both informal and formal processes of APM 140 without any adverse impact on student· employees. In many instances, the outcomes the grievance process have been the resolution of conflicted situations which have been acceptable to both sides. Dr. Steadman Upham, Dean of the Graduate School and Vice Provost of'the University of Oregon, testified that under current leadership, they are experiencing relative labor peace. The labor management relationship, however, like any bargaining relationship, evolves depending upon the leadership of both parties; sometimes good, sometimes less so. Dean Upham expressed his concern that grievances are accelerated prior to negotiations as a pressure tactic and that grievances have not been settled at the lowest possible levels. He believes that the union uses individual grievances as a possible way to build solidarity for bargaining issues. It is of great concern to Upham that an arbitrator might assert binding authority over academic decisions. It appears, however, that the authority of arbitrators has not been that great of a problem to date. No grievances have gone to arbitration since Upham has been dean. In the history of the 42
bargaining unit, only two grievances have ever gone to arbitration; one on dues deductions which was decided in favor of. the union and one on severance pay which was decided in favor of the university. Upham cited solutions reached through the grievance process which were compromises designed to meet .the key interests of both parties. Upham also cited several grievances where the University prevailed by simply maintaining s pos ion that the grievance involved rights reserved to the University. Diane Rau, a union representative from the University of Oregon, testified that grievances were often settled informally at the lowest possible levels. She gave numerous specitic examples of employment related grievances being .settled. Issues involving personnel files, evaluation processes, assignment of pay levels, payroll issues, work environment, off equipment and supplies, .use of telephones, and safety were settled using both informal and formal grievance processes within the collective bargaining agreement. According to Rau, neither the•· processes used, nor the outcomes, had any negative effect on unit members' ability to operate freely within their academic environment. She testified that most disputes are resolved informally and typically very quickly. She may not even hear about them when they are resolved. · They are often 1 timate concerns which are addressed promptly, with no further action or discussion. Occasionally, however, grievances can damage the student faculty relationship. Dr. Paul Lehman, an Associate Dean at the 43
University of Michigan, gave an example where a student employee felt her grievance was against the University, a huge impersonal institution. When it came time to try to resolve the grievance, however, it became clear that the grievance was aimed at one particular faculty member I who happened to be a professor within·" the grievant's major. According to Lehman, the informal conversations at Step I of the grievance procedure were perceived as a casual inquiry by the professor rather than a grievance. When the professor received the written grievance, the professor became 11 an emotional basket case. 11 Lehman assured professor that the grievance was a routine procedure that the student employee had a right to file under the terms of the contract, and that the professor should not take it personally. Nevertheless, the professor was in Lehman's office several times in tears over the grievance. Lehman had no knowledge about the state of the relationship between the grievant and the professor prior to the grievance. After the grievance, deteriorated rapidly to the point where the student employee left the University of Michigan to finish·a degree program elsewhere. Dr. Judith Craig, from the ~niversity of Wisconsin, believes that contracts providing for grievance mechanisms escalated issues to the highest levels very rapidly. Craig believes there was very litt effort made to resolve issues informally. She also believed that the union would increase the number of 44
grievances in order to build support for negotiations when contracts were coming up for renewal. Dr. Alice Audie-Figueroa, Assistant Director of the Research Department of the UAW, was formerly a job steward for the Teaching Assistants Association at the University Wisconsin, Madison. While there, she processed a number grievances and found having a process for resolving disputes helpful. In contrast to the testimony of Dr. Craig, she feels representation was helpful to grievants. Most of the grievances she processed were resolved at the lowest levels within the department. In a few cases regarding workload, the information the parties had available was insufficient to make informed decisions. The union and the university agreed that for the next semester, teachers assistants would keep careful logs of their assignments and hours. The parties discovered there were clear inconsistencies among faculty about expectations and responsibilities which led -to inconsistent assignments. These collaborative forts helped to resolve the dispute. Nancy DeProsse is a UAW representative at the University of Massachusetts at Amhurst. Both the university and the union emphasize informal grievance resolution. During her tenure, approximately 30 to 40 grievances covering a wide range of issues have been resolved, almost all of them at the first informal step. Only one or two have gone to Step II and only one has gone to arbitration. Sometimes the parties will bring the grievant and the faculty member together to resolve the issue and 45
sometimes the parties will involve the department head. test ied that the grievance process has not had any detrimental effect on the relationships between student employees and faculty ·members. In only one instance were the parties unable to resolve a student employee faculty conflict. In that case, they were able to have the student employee's job moved to another location with a different faculty supervisor. The conflict between the student employee and original faculty member preceded the grievance and the process resolved rather than exacerbated the conflict. Dr. Daniel Julius, Associate Vice President for Academic Affairs and Director of the National Center for Employment Studies at the University of San Francisco, testified that grievances in a collective bargaining setting can be particularly troublesome because arbitrators may interfere with academic issues .. Julius believes it is likely that arbitrators may assert authority over issues such as tenure decisions or the awarding of grades. The following very briefly reflects some of the grievance processes included in other collective bargaining agreements involving student employees, which were offered into evidence at the hearing. They are 1 multi-step processes beginning with some form of informal resolution discussion and culminating in final and binding arbitration. Both parties have the right to be represented at all stages of the process. A record is usually 46
made of the proceedings and parties are entitled to both call and cross-examine witnesses as well as offer documentary evidence. The collective bargaining agreement between the University of Michigan and the Graduate Employees Organization, AFL-CIO Local 3550 includes informal discussions at Step I and ends in final and binding arbitration at Step IV. At the University of Wisconsin, Milwaukee, the collective bargaining agreement between the State of Wisconsin and the Milwaukee Graduate Assistants Association provides a grievance process beginning with informal discussions at Step I and ending in final and binding arbitration at Step IV. Allegations of retaliation based on the use the grievance process are specifically deferred to the Wisconsin Employment Relations Commission. The termination of probationary employees is a'lso not subject to the grievance process. The parties have agreed to meet whenever necessary-outside the grievance and collective bargaining procedures in order to share information and concerns, and to resolve matters concerning the administration of the contract. At the University of Wisconsin, Madison, the collective bargaining agreement between the State of Wisconsin and the Teaching Assistants Association is very similar to the University of Wisconsin, Milwaukee collective bargaining agreement, except that a grievance may be filed by either the union or the employer. When the grievance is denied entirely, the fees and expenses of the arbitrator are borne entirely by the party 47
initiating
the grievance.
When a
partial
decision
is
issued, the
arbitrator
allocates
expenses.
At
Madison,
union
management
meetings
are
regularly
scheduled each
month
in
an
effort to
share
information
and
concerns,
and
to
discuss administration of the
agreement.
The
collective
bargaining
agreement between
the
State
University
system
Florida
and
the
Graduate
Assistants
United.
(United
Faculty of Florida) provides
for
informal
discussions
prior to
a
grievance being
filed
and
leads
to
final
and
binding
arbitration at
Step
IV.
Arbitrators
are
specifically
precluded
from
reviewing
supervisory exercises
of
discretion.
The
collective
bargaining
agreement between
the University
of
Massachusetts
at
Amhurst
and
the
Graduate
Employee
Organization
Local
2322,
UAW,
includes
a
grievance procedure
starting
with pre-grievance informal
discussions
and
ending
in
final
and
binding
arbitration at
Step
III.
It
includes the
following
limitations to the
authority
of the
arbitrator:
Furthermore, the
arbitrator shall
be
without
authority to consider
or
render decisionsconcerning
any academic
matters or
any
aspectof
a
GEO
member's
status
as
a
student.
The memorandum
of understanding
between
the State of
New
York
and
the
Graduate Student
Employee Union, Communication
Workers
of
America, Local 1188,
provides for binding
arbitration
for.
f
i:ve
types
..
of
,gri.e:vances"
....
,It
•·S•peoi-f,:l,call-y
is·
not applicable
to actions
ta}{en
by
the
employer regarding academic
matters.
Fees and expenses are paid by the losing party.
48At the University of Oregon, the collective bargaining agreement with Graduate Teaching Fellows Federation (AFT Local 3544, AFL CIO) provides that grievances may be filed by individual employees, the union, or the University. The part also negotiated limitations on the arbitrator's authority regarding academic judgements, including the following: The arbitrator shall have no authority to hear or decide any issue or grievance relating to any academic decision or judgment concerning the member as a student . The arbitrator shall have no authority to make a dee ion which is contrary to the academic policies and academic regulations of the University. The parties also agreed that the union and the designee of the President of the University shall meet at the request of either party to discuss matters pertinent to the implementation or administration of the contract. Those meetings are not for negotiations, but rather for the purpose of discussing collective bargaining issues or any other issues that are of concern to the parties. Information Flow There are currently both campus and departmental committees upon which graduate students serve. Some student members are extended voting privileges while others are advisory only. Some student members are appointed by the Graduate Student Association and others are elected in departmental elections. Many of the committees deal with issues having economic and academic relevance to the disputed titles. 49
Several witnesses called by the Petitioner testified about how student employee unions gather information from members in their role as the exclusive representative. Typically, members are surveyed to determine issues and concerns. Bargaining notes are kept, in order to be available to and build continuity for successor bargaining teams. Bargaining teams are selected in an. effort to balance the interests of bargaining unit members .. Job. stewards are also selected in an fort to make representation available to unit members. Several collective bargaining agreements, such as those mentioned above from the University of Wisconsin at Madison and Milwaukee and the University of Oregon, also provide for special processes outside the grievance and collective bargaining procedures for mutually sharing information and concerns among the parties. There was testimony that these information sharing meetings were successful at heading off potential problems. The Rhetoric of Conflict The University offered a series of newspaper articles seeking to show that supporters of the Petitioner have demonstrated a tendency to vilify the University and its administrators. In one extensive article entitled UCLA and Sexual Harassment, published in SAGE NEWS, the Petitioner's newsletter, the union stated: Since sexual harassment is so prevalent on the UCLA campus, the system would be overloaded with the complaints if the victims are properly informed about the rights and the university's responsibility, This is 50
exactly what the administration does not want to occur. The article was also critical of complaint resolution officers who were trained and employed by the University. The Petitioner argued that they might have greater loyalty to the University than to the victims of sexual harassment. According to the University, these provocative statements could not have been made in good faith because there exists a. sexual harassment committee composed of student, faculty and administrators which addresses this issue. According to the University, there so has been much training and considerable efforts to inform the u1;1iversity community in general, and victims in particular, about their rights.· The University was also very critical two other SAGE articles appearing in the UCLA campus newspaper. One.claimed that AGSE played a role in obtaining benefits at the UC Berkeley campus which were later adopted at UCLA. The other warned of a potential loss of student employee benefits being considered by the UC Office of the President. In all three instances, however, it appears that the Petitioner was putting forth legitimately held views regarding issues of possible great concern to its current and potential membership. Additionally, the evidence strongly supports a finding. that. .. the Petit.ion.er, .wa-s ,muo-h ,li;)et t:er ··informed about the facts of the disputes than was the University spokesperson. For example, in the article regarding AGSE, much of the Petitioner's claim was based upon the UC Berkeley Interim Agreement. Even up 51
to the time of her testimony, Dean Komar had not read the Interim Agreement and apparently based her position upon second hand reports from individuals not involved in the negotiations over the agreement. Other University Academic Units Several other academic units exist within the University system. There is a faculty unit at UC Santa Cruz represented.by: the Santa Cruz Faculty Association, a systemwide unit of professional librarians (Unit 17) represented by the University Federation of Librarians, University Council-American Federation of Teachers, and a systemwide unit of lecturers in the non academic senate instructional unit (Unit 18) represented by University Council-American Fede.ration of Teachers, AFL-CIO. In each of these units, the parties have negotiated collective bargaining agreements. The collective bargaining agreements contain some unique provisions to accommodate the particular interests of the parties. For example, at UC Santa Cruz, the parties agreed to defer to a wide range of existing University policies as part of their contract. The librarian contract has similar provisions which defer issues to other longstanding University polic , thus excluding them from the grievance processes of the contract. During the pendency of the appeal in the AGSE case, the University and AGSE engaged in a non-HEERA representation process at UC Berkeley. In August 1989, in an effort to limit the University's potential remedial liability if the AGSE decision 52
were reversed on appeal and to avoid additional recognition strikes at the start of the school year, the University and AGSE entered into an agreement which beca~e known as the Interim Agreement. The Interim Agreement provided that the University would meet with AGSE in good faith, on a regular basis at reasonable times, to discuss issues related to terms and conditions of employment of AGSE's membership. As part of the agreement, the University agreed to provide AGSE with payroll dues deductions and an option for dependent health care coverage at the Berkeley campus. AGSE agreed to a no-strike clause for the duration of the agreement. The terms of the agreement also required ratification by the AGSE membership. The parties stated in the document that the agreement did not confer rights or obligations under HEERA and that the agreement expired upon final determination of the AGSE decision. There is conflicting testimony about the negotiating process and rights provided in the Interim Agreement. It is clear, however, that the parties did meet an effort to resolve problems of a collective bargaining nature which were of concern to the parties. Both sides had negotiating teams, exchanged proposals on various issues and reached agreements. Agreements were reduced to writing and became enforceable policy. These final agreements, however, were issued by the University as University policy and were not mutually signed as contract provisions. 53
AGSE currently the exclusive representative a unit of readers, tutors, acting instructors, nursery school attendants, and community teaching fellows at UC Berkeley. During the AGSE hearing in 1985, University stipulated that readers, tutors, and acting instructors.were employees as defined by the.Act,,.,and, therefore ent led to rights guaranteed by HEERA. AGSE and the University have been engaged in bargaining .for. an init contract at Berkeley since late 1993. The part have negotiat over a full range of bargaining subjects and have reached agreement on a number of issues. Progress toward a first contract, however, has been very slow. Negotiations have been stalled, to some extent, over disputes in unit makeup. 13 In April 1996, an impasse was determined to exist and a mediator was appointed by PERB.w The tone of negotiations has been described by both parties as mixed. Debra Harrington described negotiations as sometimes quite antagonistic, and sometimes fairly cordial. She said there have been times when both parties have taken strong positions in negotiations. Mary Ann Massenburg testified that the 13 After the representation hearing, but prior to the representation election, the University stopped using title acting instructor, and placed all such employees into the title of graduate student instructor (GSI} which had been excluded from coverage under the Act. There is also a dispute about whether learning skills counselors are "tutors" within the unit description. 14 The parties are currently in mediation. (Regents of the University of California Case No. SF-M-2137-H.) It isappropriate to take official notice of information in PERB casefiles. (California State University, Hayward (1982) PERB Decision No. 231-H.) 54
negotiations have basically the same atmosphere and tone as many other negotiations in which she has participated. She describes them as generally civil, sometimes humorous, and sometimes argumentative. Massenburg noted that the large University bureaucracy sometimes makes the decision-making process more. cumbersome for the employer, but otherwise negotiations are similar to other public sector bargaining experiences. On some issues, the University has taken a strong stand to avoid any infringement upon the University's academic judgement and discretion. For example, the parties have spent a great deal of time discussing issues regarding an arbitrator's authority to make academic judgments. The parties have reached part agreement on the arbitrability of some issues. While the parties differ on the progress of negotiations (management feeling less progress is being made and the union believing more progress has been made) they have reached some agreements, solved some problems., and hit other stumbling blocks which they are still working to resolve. Over the years, the University has been subjected to a number strikes from student employee groups. At UC Berkeley there have been strikes in May of 1989, and November and December 1992. At UC Santa Cruz there have been two student employee strikes. There have also been strikes at UCLA and UCSD. All.of these strikes have been recognition strikes. None occurred during a .formal bargaining relationship. 55
Credibility Findings In making these findings of. fact, I have weighed the contradictory testimony of many witnesses. Several experts were called to offer opinion testimony about the second prong of subsection (f). I generally find that those experts called .by the Petitioner were more credible, for purposes of this hearing, than those called by the University. The experience of Petitioner's experts seem to either have both more breadth and depth, or was more directly related to the issues in dispute in this case. Petitioner's expert, Dr. David Hecker, Assistant President of the Metro Detroit AFL CIO, had direct negotiating experience involving student employees, combined with extensive training and academic expert in the field. His testimony did not appear to be overstated.· He was able to support his opinions with specific facts and examples. His direct testimony and cross examination were also internally consistent. Dr. Alice Audi-Figueroa's expertise is strong in the area of contract analysis. She is assistant director of research for the UAW and is a resource for local bargaining units on a wide range of collective bargaining issues. She was able to clearly articulate the basis for her opinions and support them with numerous examples and helpful analysis. Her direct and cross examinations were also internally consistent. University witness Dr. Daniel Julius has tremendous credentials as an expert in collective bargaining higher 56
education.
He
has
negotiated
at least
25
collective
bargaining
agreements
in
higher education
and
has
authored
5
books and
numerous
articles
on
many
collective
bargaining
subjects.
However,
his
wealth of experience
does
not
include
any
negotiations
involving
units
of.
student
employees.
Most
of
his.
information regarding student
employee
negotiations
was
obtained•.
second
hand.
As
well
as,
being
primarily
hearsay,
his
testimony
suffers
from
excessive
generalities
and undermined by
inaccuracies in
specific
examples
cited.
For
example, Dr.
Julius'
testimony about
the University of
Oregon
was
inconsistent
with
that
of
Dean
Upham
from
the University of
Oregon.
Additionally,
Dr.
Julius stated
as
a
fact
that at
the University
of
Oregon,
the
parties
reached
agreement
to
limit
the
amount
of
time
one
could
be
a
graduate student to
seven
years.
This
was
offered
as
an
example
of
a
conflict
between
maintaining
bargaining
unit status
and
maintaining
good academic
standing.
On
cross
examination,
however, he
was
unable
to
find
that
provision in the
Oregon
collective
bargaining
agreement and
admitted
it
was
only
a
management
proposal.
Julius
was
incorrect
about
the
number
of
collective
bargaining
agreements
negotiated
at State University of
New
York
{SUNY)
and
admitted
on
cross-
examination
that
he
has not read
any
of the
SUNY
proposals or
given
SUNY
any
input.
His
discussions
have been
limited to
strategic issues.
Such examples undermine
the
credibility
of
this witness's opinion testimony.
57Another University expert witness who did not suffer from lack of specific knowledge of student employee negotiations was Dr. Craig, an Associate Dean at the University of Wisconsin in Madison. She has had extensive experience with student employee bargaining at the University of Wisconsin, Madison since 1976. Her Ph.D. dissertation.studied the causes and conditions which led to initial recognition of a graduate student employee union. at the University of Wisconsin. Craig's credibility, however, suffers from a very shallow analysis and apparent lack of understanding of the bargaining process. For example, when asked about difficult which.arose .during the University of Wisconsin's early stages of the bargaining relationship from 1971 to 1976, responded as follows: Q. What activities w~re difficult that you are referring to? A. Well, there were - there were stewards and groups of teaching assistants who would requestmeetings, would challenge decisions, that kind of activity. Q. And what was difficult about that? A. Well, it interferes with - it interferes with the graduateprogram. It makes it difficult for people who used to get along well together, and used to work towards a common end to keep on working .towards -"tha,t eF.1:Gi. Craig also tended to make gross generalizations which she could not back up with specifics. When asked to give an example of harassment or a nuisance grievance, Craig testified: 58
. the [union]. filed.complaints, if not grievances, on behalf of teaching assistants in departments over classsize issues where the teaching assistants had no interest in grievancesbeing processed. I would characterize this as nuisance and hara~sment, and so did the departments. Q. And did the university feel that was that the [union] was being deliberately provocative? A. Yes, I did. When cross-examined on these harassment/nuisance grievances, it became clear that Craig based her conclusions on the comments two department chairs who had no knowledge of whether the teaching assistants had asked the union to look into the matter. Furthermore, in some of those grievances, adjustments were made because the University was, in fact, violating its own class size policy. Craig also gave several other examples of how she feels collective bargaining does not work in a university setting, which appear to be based entirely upon internal management disputes between the University and its chief negotiator. She so testified about the negative impact the union's maintenance of membership agreement might have on the University's recruitment of future graduate students. In doing so, it became clear she could not distinguish between maintenance of membership agreements , .. ,.agency .fe,e" agr.eement:.s • or a,uni0n shop. While these concepts can often confuse people, a witness presented as an expert in collective bargaining testifying about provisions of a contract she helped negotiate should know the difference. 59
The testimony of Julius and Craig is also less persuasive because their opinions about student employee coverage under HEERA are based upon beliefs that collective bargaining is detrimental to all higher education academic units. They painted their opinions with a very broad brush, thus contradicting.the California Legislature, which specifically determined that it was 11 advantageous and desirable" to provide coverage for faculty. When opinions are based upon a fundamental belief so at odds with the stated purposes of the Act, those opinions about coverage under the Act tend to be less compelling. Of course it is not appropriate to ect opinions of a witness simply'because they believe collective bargaining is destructive in academic settings. However, when combined with otQer credibility issues as well, their opinions were not helpful in making the necessary distinctions between student employee coverage, which is at issue in this case, and other academic bargaining, which is clearly sanctioned-by Legislature under HEERA. The credibility of another University witness, Provost Brian Copenhazer was also handic~pped by his inability to distinguish between collective bargaining rights for faculty (which have been deemed appropriate by the Legislature) and coverage for disputed titles. s testimony was also extremely vague, .consisting primarily of unqualified opinion testimony and broad generalizations, based upon very limited experience from the distant past. 60
Dr. Ellen Switkes' testimony was limited to mentoring issues and University processes . 15 To the extent that Switkes offered expert opinion testimony in other areas, that testimony is not credited. Her opinion testimony within her area of expertise is of limited value because it often seemed to be based on uninformed speculation. For example, she testified that the use of APM 140 was detrimental to the student's welfare when compared to 11 the student complaint policy." But, when she was asked to give a brief summary the difference between APM 140 and the student complaint policy, she was unable to do so, stating: "I can't because I don't know anything about the student complaint policy except to refer people to it. 11 The testimony of Dean Kathleen Komar was generally credible, except in one major area. Her credibility about the series of newspaper articles in which she sparred with Petitioner was damaged because.she was doing just what she was accusing the union of doing (i.e., taking reactionary and rigid positions without having all the facts}. Many student employee witnesses were asked a lengthy series of yes or no questions·about their educational objectives. For example: Q Is one of your educational objectives to learn whether or not you want to teach after you graduate with your Ph.D.? 15 Limitations regarding her area of expertise and opinion testimony did not limit her testimony in other areas as a percipient witness. 61
Q Is one of your educational objectives in the ------Ph.D. program to learn research methods and skills in your discipline? Q Is one of your educational objectives to develop your communication skills? Q Is one of your educational objectives in the Ph.D. program to establish mentor ionships with 0 one -or more faculty members? - --------.Q9 --~Ir=s one of your educational objectives in the Ph.D. program to have as much time as possible to spend on your graduate work? While these questions are appropriate, particularly on cross-examination, I found the answers somewhat less persuasive than those of individuals who were simply asked to formulate, in their own words, their educational objectives. were also a number of percipient witnesses whose testimony was particularly credible on aspects of issues in this dispute. They were Deans Duggan and Upham; Provost Wulbert; and UAW Representatives Massenburg and DeProsse. Finally, the University argues that Petitioner's portrayal of the evidence should be discounted because "a large percentage of the UAW' s student witnesses. are union activists as opposed to disinterested third part 11 It is not surprising that a union of student employees would call as witnesses a number of union activist students. It can hardly be said that the University 62
chose to call only third party disinterested administra_tors. That University argument rejected. DISCUSSION Indicia of Student vs. Employee Status Before discussing application subsection (f) to the facts this case, I want to dispose of three issues upon which, the parties offered argument. The first whether the facts are more an indicia of status as a student or as an employee. 16 It is clear that the individuals at issue are both. They possess all the attributes of both students and employees. The test is not whether they are more like students or employees, but rather a balancing of the value to educational objectives against the value of services rendered. My analysis, therefore, does not focus upon, nor do I try to decide, whether student employees are more 1 students or more like employees. UC Berkeley Precedent The second issue whether I should draw any significant conclusions from events at UC Berkeley. Both parties offered evidence and made substantial arguments about the significance of bargaining events and issues at UC Berkeley. Each side draws different conclusions from this evidence. Although the record reflects numerous similarities in the dut and terms and 16 In the UCSD hearing, the University argued that the s supported a finding of 11 studentness 11 among the individuals inquestion. It has now adopted the UCSD standard that indi a of student or employee status are relevant only to the extent they reflect upon educational objectives and service to the University. 63
conditions of employment between the UC Berkeley unit and the one sought at UCLA, I place little reliance upon the evidence presented regarding UC Berkeley. First, the University's stipulation that readers, tutors, and acting instructors at UC Berkeley are employees under the Act is not binding on the University at UCLA. I have previously ruled that absent a new stipulation to the contrary, each petition.should be judged by the record established at that location. The UC Berkeley stipulation was a tactical decision based upon the UC Berkeley record. It was not an admission, nor is it binding on petit Similarly, the UC Berkeley Interim Agreement is not an admission that collect bargaining is appropriate at UCLA or any other location. That agreement did not amount to collective bargaining under HEERA. It was also a tactical effort to limit liability in an unfair ice case and an effort to.avoid further strikes. · I so place litt weight on the bargaining occurring in the UC Berkeley readers, tutors and acting instructors unit. The bargaining there appears to be like many other new bargaining relationships. The part are struggling with their first contract and dealing with new issues. There are also unit description issues not yet resolved, which make bargaining particularly difficult. It is simply inappropriate to draw any conclusions from bargaining at UC Berkeley, other than the fact 64
that parties
are
engaged
in
a
difficult
first
negot
ions
and
are
currently in
mediation.
third
issue
is
that
both
part
make
incorrect
assumptions about
what
HEERA
presumes.
The
University
argues
that
HEERA's
subsection
(f)
starts
with
a
presumption
that
students are
not
employees.
The
Petitioner
argues
that
the
..
same
statutory
language
presumes
that
some
students
will
be
covered.
HEERA,
however,
makes
no
presumptions
one
way
or the
other.
The
Legislature
clearly
left
that
task to
PERB.
The
Act
simply
offers
criteria
to
be
applied
by
PERB
in
making
its
determination
about
student
employee
coverage.
Analysis
of
Subsection
(f)
Subsection
{f)
calls
for the
application
of
three
tests
to
determine coverage under
HEERA
of student
employees.
The
first
test is
whether
employment
is
contingent
upon
the
candidate's
status
as students.
If
employment
in
a
disputed
position
is
not
contingent
upon
status
as students, then the additional
requirements of subsection
{f) do
not apply
and
student
employees
are guaranteed
rights
under
HEERA.
The
second
test
provides
that
even
if
employment
in
a
disputed position
is
contingent
upon
status
as
a
student,
coverage under
HEERA
will
be .extended
services provided
to the
University
by
the student
employees
are unrelated to the
educational objectives of those student
employees.
The
third test
has
two
prongs.
Under
this test,
student
employees whose employment
is
contingent
upon
their status as
65students and whose educational objectives are related to the services they perform for the University may be extended coverage under HEERA if their educational objectives are subordinate to the services provided (Prong One) and coverage under HEERA would further the purposes of the Act (Prong Two). First Test: Is Employment Contingent Upon Student Status? With one exception I find that status as a student is a requirement for.employment in the disputed titles. That exception is the RT/LSC position. The best evidence reflecting whether employment in a disputed position is contingent upon "the status the students" is whether non-students are hired into the disputed position. RT/LSC positions are filled by both students and non-students. According to Patricia Pratt, Director of Student Support Services, the program stopped using the remedial tutor title specifically because it wanted to be able to hire non-students for the summer program. Although students may receive a hiring preference, this does not amount to a contingent requirement of student status. Therefore, the additional restrictions of subsection (f) do not· apply and all individuals (students and non-students) employed as RT/LSCs are employees under the Act. Petitioner also argues that all remaining classifications are also staffed by non-students. This argument is rejected. The evidence reflects a limited number of non-student readers serving in the position after they dropped out of school, but 66
prior to the paperwork catching up to them. Thus, they were never hired into the position as non-students. Tutors are allowed to remain in the position for a set length of time after they graduate or take a semester off. At that point, technically speaking, non-students may be serving in. the disputed positions. However, they would not be in the posit if they had not been students at the time they were hired. This evidence dramatically different from UCSD where individ~als who were not students and had never even been students were routinely hired into the disputed positions. Petitioner argues that non-students so perform GSI and GSR duties and cites the use of post docs, lecturers, and research assistants to fill in for the disputed titles when the need ses. There is, however, a long established overlapping of job responsibilities a:mong numerous Unive.rsity employees. Even other non-students perform duties similar to GSis and GSRs, they are doing so clearly employed in a different position, usually at a different rate of pay and with differing levels of responsibilities. The most obvious example of this pract is the use of faculty to perform grading, teach lab sections, and lead discussion sections in courses where enrollment is small. The record is clear that the University non-students such as post docs or lecturers to perform the functions of teachers assistants when students are not available to fill the University's needs. However, when such non-students are hired into those positions they are not hired as teachers assistants. 67
Second Test: Are Services Related to Educational Objectives? In contrast to the findings in UCSD, I find here that the services provided by employees in all the disputed titles are ated in some manner to the educational objectives student employees. In=-== I held that services provided by readers were unrelated to their educational objectives. Here, the record includes reader witnesses who used their positions to build relationships with faculty and incorporated their grading skills into future teaching plans to a greater extent than to UCSD. Although the relationship is very marginal, it cannot be said, based upon this record, that. employment as a reader at UCLA is unrelated to educational objectives. Third Test: Are Educational Objectives Subordinate to Services (Prong One) and Would Coverage Under the Act Further the Purposes of the Act (Prong Two)? In Regents, the Supreme Court reviewed HEERA legislative history, noting that the Legislature had created a new standard for determining this issue, rather than follow National Labor Relations Board (NLRB) precedent. The court believed that· subsection (f) was the Legislature 1 s attempt to craft a more comprehensive alternative to either a "primary purpose" test or a test focused instead on the value of the services performed. The court believed that in crafting HEERA, the Legislature did not focus solely on the primary purpose for the employment or on the value of services performed. Instead, subsection (f) requires that in cases where employment is contingent upon 68
student status and the student employee's educational objectives are related to the services performed, PERB ·must balance those educational objectives against the value of the services performed. In determining the educational objectives of the student employees, the court made it clear that PERB was to focus on the personally held subjective perceptions of the student themselves. Once the subjective educational goals of the student employees are determined, they are then weighed against the objective value of the services performed: ... to see if the students' educational objectives, however personally important, arenonetheless subordinate to the services they are required to perform. Thus, even if PERB finds that the students 1 motivation foraccepting employment was primarilyeducational, 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 obligations. [Fn. ommitted; Regents at p. 614.] Thus, even if all the student employees concurred that their purpose in taking the job was to further their educational objectives, the Board could determine that those educational objectives were subordinate to the value of the services provided. For example, in Regents there was evidence that the interns and residents chose those positions in order to best fulfill theil: per.sonal.,.educational:. -obje.ct-ive-s .17. Yet,· the Board 17 The Administrative Law Judge (ALJ) in that case noted: [A]ll housestaff witnesses testified [that] the educational objectives in choosing 69
still found that the educational objectives were subordinate to the valuable patient care services provided. Once the Board determined that the educational objectives .were subordinate to the services performed, the Board had to determine if it would further the purposes of the Act to extend coverage to housestaff. The Board.reviewed the purposes of the Act and concluded that the extension of collective bargaining rights to housestaff would give them a viable mechanism for resolving the differences, and coverage would, therefore, foster harmonious and cooperative labor relations between the University and housestaff. In upholding the Board decision, the court specifically rejected the University's claim that its mission would be undermined by bargaining on subjects tied to the educational aspects of the residency programs . . This "doomsday cry" seems somewhat exaggerated in light of the fact that the University engaged in meet-and-confer sessions with employee organizations representing housestaff prior to the effective date of HEERA. Moreover, the University 1 s argument is premature. The argument basically concerns the appropriate scope of representation under the Act. (See section 3562, subd. (q).) Such issues will undoubtedly arisespecific factual contexts in which one side wishes to bargain over a certain subject and the other side does not. These scope-of- and participating in a residency program are to receive the best medical training and qualify for specialty or subspecialty certification. [Regents at p. 640, fn. 14.] 70
representation issues may be resolved by the Board when they se, since it alone has the responsibility 11 [t]o determine in disputedcases whether a particular item is within or without the scope of representation." (Section 3563, subd. (b) .) [Regents at p. 623, emphasis in original, fn. omitted.] The court also rejected the University's claim that extending coverage could lead to strikes and was inappropriate due to the brief tenure of housestaff. The University also argues that permitting collective bargaining for housestaff may lead to strikes. However, it is widely recognized that collective bargaining is an alternative dispute resolution mechanism which diminishes the probability that vital services will be interrupted. (See San Diego Teachers Assn. v. Superior Court, supra, 24 Cal.3d at pp. 8-9, 13.) Finally, the University argues that the brief ·tenure housestaff's relationship with the University undermines the conclusion that coverage would further the purposes of the Act. The University acknowledges that many other individuals whose relationship with the University is of short duration have been accorded employee status with full bargaining rights. Housestaff should not be treated differently. [Regents at pp. 623-624.] In the AGSE case, originally filed in 1983, the petitioner sought to represent GSis and GSRs, among others. The Board had a difficult time applying the facts of the AGSE case to the test set forth in Regents. First, the Board redefined the definition of educational objectives. The Board minimized the $Ubjective view .. .the ._student. .empl.oy~eSr· ,,added ~t-ke -additional- opinions and objectives of professors, and analyzed them within the framework of the University's graduate program. Instead of weighing the personal educational objectives of the student employees against 71
the value of the services rendered, the Board stated the issue as follows: The issue in this case is how the academic considerations of student, faculty and administration, are to be weighed against thekind of services the student is performing within the context of the University's entire graduate student program. [AGSE Bd Dec. at p. 39.] The Board also noted that the test it was supposed to apply required the Board to balance a seemingly subjective element (personal educational objectives) against an objective one (the value of the services rendered). The Board therefore felt it was necessary to "recalibrate the scale. 11 Instead of looking at each side of the scale and weighing the interest (academic and employment) independently, a more helpful approach is to examine how the two interests inter-relate and determine which side ultimately prevails when the two interestsconflict ... by examining the balancing test from this perspective we avoid having to weigh subjective against objective factors in reaching a conclusion ... Weighing the facts of this case in our newly calibrated scale, we find that in cases of conflict between the 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. [Id. at pp. 47- 48.] The Board then reviewed the second prong of the test, i.e., whether granting employee status would further the purposes of the Act. It concluded: Thus, the academic nature of the GSI and GSR appointments, which promotes a free exchange 72
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 ... (AGSE Bd Dec. at p. 54.) The Board noted that while the ALJ focused upon the development of harmonious and cooperat labor relations between the University and its student empl'oyees, he did not address the academic nature of the professor student relationship. Citing the NLRB's discussion labor policy St. Clare Hospital and Health Center (1977) 229 NLRB 1000 [95 LRRM 1180], the Board held that the importance of the mentor relationship between professors and their students in the pursuit of educational excellence cannot be understated. The Board found: The record replete with testimony from both professors and graduate students which describe the professor-student assistantrelationship 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 others' written work. [AGSE Bd Dec. at p. 50.] The Board feared that: Collective bargaining would emphasize economics, which would become the primary goal at the expense of the academic goals of ... the,.GSL . .and .. ,,GS.R-,prc@grams.. [Id ;·-at ·•p. · 51.--] Focusing specifically on the GSis, the Board stated: Although it could be argued that includingGSis under the coverage of HEERA would promote harmonious and cooperative labor 73
relations among the GSis, there no evidence that collective bargaining would encourage the pursuit of excellence in teaching. [AGSE Bd Dec. at p. 52.] The selection process at Berkeley involves a mutual process of accommodating the choices of professors and GSis. The Board found that GSis based their choices on their desire: ... to learn a particular subject, refresh their background in fundamentals, or learn a different approach or perspect to a topic through a particular professor or course. This selection process emphasizes the academic nature of the GSI program. (Id. at p. 53.] The Board found col ive bargaining would not promote harmonious and cooperative labor relations among GSis and GSRs because the continuous movement among graduate students and out of these positions. The Board felt graduate students would be spl into two groups; those in bargaining unit positions and those who are not. Membership would change frequently, depending upon the availability of appointments, causing instability,. The final basis for the Board's decision was its bel that it is virtually impossible to'separate academics from economics, there , involving the parties in bargaining over current academic practices. On appeal, the court in AGSE held that the Board's "recalibration of the scales" had so distorted the first prong of subsect . .( fJ . that. the PERB's test contradicts Regents' test because it does not examine in aggregate the educational objectives of the students and compare them with the aggregate of the services rendered. Instead it extracts those 74
services which conflict with educational objectives and examines how conflicts areresolved. PERB lacks the authority to change the Regents test. [Citation.] PERB should have been looking for a better way to evaluate student's educational objectives and to compare them with the services they performed, not for an excuse to "avoid having to weigh subjective against objective factors." PERB's distortion of the first prong renders suspect its conclusion that GSI and GSR educational objectives are not subordinate toservices. . [AGSE at pp. 1142-1144.] Instead, the court laid out the proper test as follows: "Case-by-case analysis" would call upon PERB to consider all the ways in which GSI and GSR employment meet educational objectives of the students and all the ways in which the employment provides services and to compare the value and effectiveness of the employment in meeting the students' educational objectives with value and effectiveness of the employment in providing services. PERB, with its .expertise, would then make a judgment about whether the employment was more valuable and effective in meeting educational objectives or in providing service to the University: whether the "educational objectives are subordinate to the services" the students perform. (Id. at p. 1143, emphasis in original.) The court did uphold the Board's decision, however, because found that the Board appropriately applied the second prong of the. test,_ .. and ... that the .. .Boa.rd'"s.,de.c,isi0n«was··supported by substantial evidence. The court relied heavily on the testimony of Dr. Robert Bickel, that collective bargaining would interfere with complex 75
and fragile mentor-student relationships, could do serious damage to the stature of the itution and feet its ability to attract and retain the most able and productive faculty and graduate students. The Board's finding was also supported by testimony about collective bargaining by involving Dutch graduate students. Both the Supreme Court in Regents and the Court of Appeal in AGSE re erated that the application of subsection (f) requires a case-by-case analysis of the unique facts presented in each case. Prong One--Are Educational Objectives Subordinate to Services? In this next section I will discuss the first prong subsect (f), i.e., whether the educational objectives student employees are subordinate to the services provided to the University. I start with GSRs, then discuss all the other disputed titles (except tutor supervisors) as a single group. GSRs considering the ways in which GSR employment meets the educational objectives students compared to the ways the employment provides services to the University,. I find that the educational objectives GSRs are not subordinate to the services provided and therefore, coverage under the Act should be denied. Employment as a GSR meets practically every educational object that students possess. Most GSRs are being funded to perform virtually the same work that they would have to perform as students, regardless whether they were being paid. The 76
role of the faculty member in relation to the GSR is more like a patron than a typical supervisor. As GSRs, students are not simply learning skills that will be helpful to them in career choices. They are learning the very skills essential for them to complete their ssertation and obtain their degree. In contrast to all other academic apprentice appointments, it would be virtually impossible for an outside observer to determine whether the GSR is performing paid duties 11 0n clock" as a GSR or rather is simply performing scholarly research as an unpaid student. Nor would it even be possible for most GSRs to make the distinction in any way other than artificially for purposes of a time/pay voucher. Unl GSis who can easily distinguish between unpaid time as a student and paid time teaching a course or correcting papers, GSRs perform dut s leading directly to their dissertation and degree and receives pay as a means of support for a fungible portion of that work. Secondary educational objectives are also met perfectly through employment as a GSR. GSRs regularly co-author research papers with their faculty supervisors, are often sent to conferences, have the opportunity to establish networks with professional contacts and enhance both their curriculum vitae and future employment opportunities. Unlike all other academic apprentice appointments, the value of GSR positions accrue primarily to the GSRs and their educational objectives. The value of the services received by the University is not nearly as significant. 77
To the extent that hourly GSRs provide research support to faculty, they do provide service to the University. That is an extremely small portion of GSR funding, however, and it is not reflective of the value of GSR services to the University in this balancing test. Petitioner argues that GSRs are hired to fulfill the terms of research grants awarded to faculty and that these grants are essent to the University's research mission and the career of the principal investigator. While there is some support this argument, the weight of evidence in the sting record is that one of the primary purposes of seeking grants is to provide support for students and to create a vehicle for their dissertation research. At least one professor seemed to be baffled by questions about hiring non-students to perform GSR work, because the whole point of the GSR work is to benefit the GSRs. This contrasts with GSis, for example, where the main pur12ose of their employment is to assist in the undergraduate teaching mission of the University. Pet ioner also argues that the services provided by GSRs generate a substantial portion of the University's essent revenues. Research grants usually include several components, including a portion of principal investigator's salary and a huge portion for University overhead. According to the Petitioner, the intellectual labor of the GSRs fuels the grants. While the GSRs no doubt play an important role in University 78
research, that argument is akin to the tail that wags the dog. The weight of evidence in this record s~pports a conclusion that the research grants support the GSRs rather than vice versa. I therefore conclude that services provided to the University are subordinate to the educational objectives of most. GSRs. The only exceptions·to this conclusion might be the limited number of hourly GSRs not working in their field of research. For reasons articulated in the Prong II section of this decision, however, I exclude those individuals from coverage. as well. GSis, Special Readers, Readers, RT/LSCs and Tutors Although there are some major differences among the remaining classifications, there are also many similarities. On balance there are enough common factors to deal with them as a single group. Most individuals in these classifications are drawn to their jobs for economic reasons, seeking income and reduced fees. Most find the jobs significantly more convenient and ss disruptive to their educational program than other available employment off campus. The jobs typically so allow student employees the opportunity to better position themselves for whatever next steps they may seek. GSis gain valuable teaching skills which will be beneficial to them after they complete their degree programs, leave UCLA and seek employment elsewhere. While there was conflicting testimony about the value of teaching experience compared to research experience when seeking future employment in higher education, 79
just about every GSI indicated they·were placing their GSI experience on their curriculum vitae, which indicates it given value in the search for employment. Undergraduates may gain the distinction of being selected for an academic apprentice position which may prove valuable in applying for graduate school. Readers may become more proficient at the grading proces~ and tutors can also improve their teaching and communication skills. All positions provide the opportunity to review academic material within a chosen eld and offer an opportunity to gain skill working with other students. Individuals in all the titles gain exposure to faculty in varying degrees. Although tutors, readers and GSis teaching a course have.only minimal exposure to faculty, section leader GSis and special readers typically interact with their supervisory faculty member weekly, not more often. For graduate students trying to assemble a dissertation committee, this provides an opportunity to relate to faculty members in .a manner unl other students. It not only distinguishes them in the eyes of the faculty, but it gives students insight into whether particular faculty members would make good committee members. Other than this potential help in assembling a dissertation committee, however, employment in the disputed titles does very little or nothing at all in meeting the most fundamental educational objective all student employees, which is to complete their degree program. In all but rare circumstances it 80
satisfies no coursework requirements. None the titles will significantly increase research skills, nor will they provide an opportunity for any original research. It is not the norm for student employees to develop mentor student relationships based solely upon employment·in these disputed titles~ That depth of relationship is usually reserved for a student's dissertation chairperson. Occasionally, .it involved other individuals on a dissertation committee. Student employees no doubt learn the subject matter better each time they teach it. Numerous witnesses, both faculty and student employees, testified that the best way to learn a subject thoroughly is to teach it to others. Student employees in these titles, however, are typically teaching, reading or tutoring subjects where they already have a great deal of expertise. Although there are some exceptions, in most situations the individuals would not have been selected without that expertise. The educational level at which they are teaching, reading, or tutoring, is also usually significantly less sophisticated than their own coursework and research. Individuals preparing for qualifying exams could, no doubt, benefit from teaching the subjects of their exams. In some cases, however, individuals with that motivation were actually screened out of employment possibil ies. The writing of a student employee's dissertation is not fostered at all by employment in these titles. Quite the opposite is true. Time spent teaching an undergraduate course is 81
time necessarily taken away from one's dissertation, as would any other employment. The extensive efforts made by the University to re ct GSI hours to 20, as compared to GSR hours which everyone acknowledges exceed ·20 per week, is an implicit admission that GSI employment cuts into the time available. for the student employee's own research and dissertation work. Employment in these titles does not develop or enhance writing skills, unles_s perhaps the student employee is teaching or tutoring a composition course. Nor does employment in the titles advance the publication of papers, either individually or with faculty. Witnesses did not fill the record with stories of joint publications between supervising faculty members and student employees in the titles, as was common with GSRs and their supervisors. Neither does such employment promote attendance at conferences for the presentation of papers. Such publications and presentations are usually reserved for student's dissertation and done jointly with a dissertation chair or research supervisor. inadequacy of employment in these titles to meet educational objectives is again vividly demonstrated by a comparison to employment as a GSR. GSRs are paid to complete their degree program. They learn research skills directly related to their body of original research for their dissertation. They select thei:r topic, do their research, form their committee, write their dissertation, and then deferid it, all within the aegis of GSR employment. As well as directly 82
supporting the completion of the GSR 1 s degree program, the employment also meets almost all other educational objectives. GSRs gain demonstrable skills of research and writing. Their curriculum vitaes are developed through the publishing of papers, both jointly with faculty supervisors and individually, as well as presentations of the research at conferences. Finally,· GSRs enjoy a greater opportunity to develop strong mentor/student relationships with faculty supervisors, who more often than not are also the GSRs dissertation chair. Almost 100 percent a student's educational objectives ca~ be met through employment as a GSR. In stark contrast, it is signi ly less than a 50 50 proposition, at best, for 1 other disputed titles. Since readers and tutors typically gain far less teaching experience and have less interaction with · faculty, employment in those titles provide even less opportunity for meeting educational objectives. While not true in every case, a fairly accurate generalization that GSRs are paid to educate themselves, while GSI (and other disputed titles) are paid to educate undergraduate students. The limited value that employment in these titles has in meeting educational objectives must be balanced against the great value services provided to the University by employees in these t les. The University could not continue in its current structure without the services of the disputed t The evidence is clear that there are simply too many undergraduate students and 83
too few faculty to provide a first class education without the services of GSis and readers, for example. The University could not accomplish its mission of undergraduate education without a course structure providing for a combination of large lecture classes and smaller section meetings. Similarly, faculty could not assign the same kinds of valuable written course assignments without readers to assist with the grading in larger courses. Assignments would have to be fewer and of a different type (e.g., multiple choice and graded mechanically). Undergraduates would also receive significantly less persona1 attention than they do now. GSis are one of the main sources of contact between the University and undergraduate students. In some significant fields they are literally the only contact between the University and the undergr~duate student. In almost all situations, it is the educational needs of undergraduate students which determine the staffing requirements for the disputed positions. The University does not determine how many graduate students need this experience offered through employment and then find positions for them. Rather, it determines the number undergraduate courses.that need to be staffed and then finds an .appropriate number of student employees to those vacant positions. It also appears that the value of providing graduate students with this rich training experience does not seem to be as high a priority in departments which are rich in GSR funding and which have small or non-existent undergraduate enrollments. 84
An exception to the practice of determining staffing by undergraduate needs is the Collegium program. There the motivation for the program is clearly to give teaching fellows the opportunity to develop and teach their own course. However, the Collegium is a good example for application of the Supreme Court's analysis in Regents. [E]ven 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 determinewhether the students' educational objectives take a back seat to their service obligations. [Regents at p. 614; fn. omitted.) . Here, the University argues that the value of services received by the University is not great. According to the University: There is no evidence that the undergraduateseminars provided by graduate students participating in one of Collegium programs are of any great value to the overall curriculum provided by the University. Or course, considering the thousands of courses offered each year, it could also be argued that no single course is of any great value to the overall curriculum provided by the University. That, however, would probably be hotly contested by the undergraduate students taking the course who have paid tuition and are counting .on the.,,QGUFSe.--eFedit •·-they ··receive· toward their own graduation. -Regardless of the motivation for teaching a Collegium course, the teaching fellow has responsibility for all aspects of 85
the course, including designing the curriculum, selecting textbooks, assigning coursework, grading assignments and developing and grading exams, with as much responsibility as any other new faculty member. While teaching in the Collegium may greater experience to the teaching fellow, and thus be of more value to the educational objectives than a typical GSI assignment, the service provided is also significantly more valuable to the University's teaching mission. There are few services that would be of greater value to the University 1 s teaching mission than having responsibility for teaching an entire course to undergraduate students. What could be of greater value to the University 1 s teaching mission? The University also specifically downplays the value of the tutoring services offered. According to the University: There is no showing that tutoring is essential to the University's educationalmission. The tutoring programs dQ not provide basic instruction,.but merely providesupplemental help to those who think they need it. This position is contrary to material published by CTS and AAP, which emphasize valuable role the programs meeting the needs of students. Furthermore, when an extremely .disproportionate number tutors are assigned to the special tutoring. ne.eds, .of .. 4.00 ... UCLA.. at-hletes;•" sd:.mp:l:y not credible to argue that services provided to the athletes are of less value than the educational benef s derived by the tutors themselves. The tutors, all top students in their field, assist the athletes 86
with their studies, notes for them when athletes are gone on sports trips, and even personally take steps to ensure that athletes do not miss the tutoring sessions. Clearly, the greater value is received by those delivering the services, rather than by those giving the service. This pro.gram was .not established to cater to the educational objectives of the tutors. It was established to foster the University's athletic program, particularly in large cash generating sports. Any benef derived by the tutors incidental to the services performed. 18 The same can be said of the AAP. No doubt AAP tutors reap benef from their jobs. They learn from their teaching and gain the satisfaction supporting a program they fundamentally believe in at a time the program's goals are being severely tested. But these tutors are not chosen -so they will benef educationally from the AAP. Quite the contrary is true. They are chosen as role models for AAP tutees because they have successfully navigated University environment. Any value they receive is clearly subordinate to the services they provide the AAP and UCLA's .affirmative action commitment. The University seeks to minimize the value of readers by pointing out that, 11 the instructor in charge of a course is 18 This should not be read as critic of UCLA's athletic tutorial. All the evidence indicated it is an effective and laudable .. progr.am."to .. ass,i-s.t -the :v:e-ry«raealist·ic.,special needs of athletes who are often traveling away from their courses on University sponsored sports events and otherwise devotingenormous personal time and energy to the University through its various sports programs. The University 1 s credibility vanishes,however, when it argues this is a program offering greater value to the tutors than to University. 87
responsible for determining the grade of each student in course," and that the services could be provided by other sources: To begin with, the course instructors could evaluate all their student's work. Just as graduate student's testified that their ability to evaluate or 11 grade 11 improved with experience [c ions] it would be expected that the course instructor would be significantly more. efficient in accomplishing these grading responsibilities. However, the University's argument that professors could suddenly handle all the grading because they are more efficient is totally devoid of credibility, and completely unsupported by .the record. The University's most consistent argument for all the disputed titles, however, is that it could replace student employees with non-student replacement workers in a more educationally effective and cost effic manner. In support of this argument, the University offered numerous witnesses who testi that there was a large candidate pool of potent workers in the Los Angeles area who would be available to perform the work currently done in the disputed t les. University argues that: (1) it would be cheaper to use non-students; (2) non-students would perform better as teachers because their primary focus would not be on completing their education. as.,is,.current ,.t,he--.oase--with g·raduate··s-tudents, but rather their primary focus would be on their teaching assignments; and (3) non-students could be selected based solely on demonstrated teaching skills rather than on academic standing. 88
Thus, the University argues that it could accomplish the work more cheaply and skillfully by not using student employees. According to the University, this shows that its main interest is not in obtaining these services in the most .effective and cost efficient manner. Rather, it is most sted in providing - important training experiences for graduate students. Therefore, the University claims it reaps little value from the current pract In this UCLA decision, I am dealing with this argument differently than I did the UCSD decision for two reasons. First, based on the UCSD record, I was unconvinced that a candidate pool existed from which UCSD could draw potent replacement workers. Thus, there was no need to deal with the University's claim in any greater depth. At UCLA, however, the University offered credible evidence that a candidate pool existed from which UCLA could recruit non-students into the disputed titles.w 1 9while I find credible the University's claim that a viablecandidate pool exists and that the cost of hiring from that pool could be competitive, I am not as convinced as the University isthat replacing current student employees with non-students would increase the educational benefits for undergraduates. For example, I do not believe that the University has dealt effectively with the potential loss of benefits from the concept of peer teaching., nor..-do.,T .. th.ink,,the--Univer:sity -has shown it is equipped to deal with the logistical problems of hiring so many new non-students. A candidate pool is not easily transformed into a viable workforce. However, in light of my rejection of the University's legal theory regarding non-student replacement workers, it is unnecessary for me to draw any conclusions regarding its educational fectiveness. 89
Second, the University has articulated its argument more clearly and more thoroughly explained s theory under the existing evidence. As a result, it is more apparent that the argument is incorrect. There are two major flaws. with the University's-argument on· this point; one legal and one factual. The argument is flawed legally because the University is seeking to have the Board once again ''recalibrate the scales" by adding an additional test to the balance. Instead of having me balance the value to the educational objectives the students with the value of services provided to the University, the University would have me also balance the value employing students in the jobs against the value of employing non-students. According to the University: The analysis of the "services provided" does not end with a finding that the services provided ·by GSis are or are not of some benefit to the University. Rather, there must be a further assessment the value and effectiveness of employing students to provide these services as compared to alternative means for securing the services. [Emphasis in original.] The additional step that the University seeks to add to the balancing test ·is not supported by the Supreme Court in by the Court of Appeal AGSE, by the Board in any of its decisions, nor by the statute itself. Clearly the Act, as interpreted by the courts, looks to the value of the services provided to the University. It does not require a balancing between the value of employing students to perform those services 90
against the value of employing non-students. My obligation is to determine whether the value of the services currently received by the University, as provided under the current structure, outweighs the value to the current ~ducational objectives of the existing students. It is no more helpful in this-task to weigh how the University might reinvent itself if chose to do things differently in the future by hiring non-students in the disputed titles, than to balance those alternative staf.fing decisions against the potential educational objectives of students if no jobs were available at UCLA and the only students applying to UCLA graduate schools were those with independent financ support. The possibility that the University could hire non-students to perform these essential services at a competitive cost does not in any way lead to the conclusion that the current use of student employees provides little value to the University. Quite the contrary is true. The fact that the University would have to either dramatically alter its teaching mission or hire a huge replacement workforce highlights just how important these services are to the University. The University's argument is also undermined by a factual issue. Clearly, both the University and the student employees value the learning experiences of work in the disputed titles. However, there is intense competition among top Universit for the best graduate students. Because one of the strongest motivating factors for students seeking these positions is 91
economic support, if the University did not offer employment to graduate students, a likely result is that UCLA graduate programs would be filled primarily with students who are either rich or mediocre. The best and the brightest students without independent financial support couldn't afford to go to UCLA. Only those with.an independent.means of .support or those who .had been ected by other universities offering better employment or better support packages would end up at UCLA. This leads me to conclude that the University is motivated to use student employees in the disputed titles at least as much, if not more, by a concern that a failure to provide economic support through employment :"'ould diminish the University 1 s ability to attract the best graduate students. I therefore conclude that while there is value to the educational objectives received by all the student employees in the remaining disputed t:i;.tles, the value received by the University is even greater. Thus, the educational object of student employees in these titles are subordinate to the services received by the University. Prong Two--Will Coverage Further the Purposes of the Act? University put on most of its Prong Two case during the UCSD portion of the hearing. Therefore, much of this discussion will re to evidence and arguments already rejected in the UCSD decision. 92
GSRs Having found that educational objectives of most GSRS are subordinate to the services provided, it is unnecessary to decide Prong Two issues except for those small number of GSRs doing hourly research faculty projects unr~lated to the dissertation topic. For those hourly GSRs, I do not believe under Prong Two of this test that it would further the purposes of the Act to split the ass and provide coverage for some hourly employed GSRs. Hourly GSRs account for a very small portion of expended GSR support funds. Thus, splitting class would impact only a limited number of students. There is also no practical method of determining which GSRs are performing research which may at some time overlap with their own dissertation research. Even some hourly funded GSRs are hired more to support the student than for the actual research they provide to the faculty. Thus, because there is no administratively practical method for the parties to clearly and easily determine on a person-by- person, hour-by-hour basis which hourly GSRs might be subject to coverage, and because this group constitutes a small portion of the expended GSR funds, I feel that it would not further the purposes of the Act to split the class and provide coverage to some hourly GSRs. I do so based upon the above listed reasons only and do not find necessary to address other University arguments under Prong Two of this test for GSRs. 93
GSis, Special Readers, Readers, RT/LSCs, Tutors The arguments applicable to the second prong are similar for the remaining positions dispute in this hearing~ I therefore do not distinguish between them in this portion of the decision. In creating HEERA, the Legislature believed that it would be "advantageous and desirable" to extend PERB 1 s jurisdiction to the University. The Legislature noted that the people of the State of California have a fundamental interest in the development of harmonious and cooperative labor relations between the University and its employees. A harmonious labor management relationship is necessary to preserve and promote the responsibilities granted to the University by the people of the State California. HEERA assures that those responsibilities will carried out in an atmosphere which permits the fullest participation by employees in the determination of conditions of employment which affect them. It is a purpose of the Act to create a system of col ive bargaining which includes impasse mechanisms and unfair practice processes. It is also.a purpose of the Act to preserve and encourage joint decision making in consultation between the administration and faculty or academic employees. The Legislature also reiterated the state's policy of encouraging the pursuit of excellence in teaching, research and learning through the free exchange of ideas among faculty, students and staff. It also provided that part subject to HEERA shall endeavor to preserve academic freedom. 94
Extending coverage to student employees at issue will create th~ opportunity for them to participate in collective bargaining. There are substantial employment concerns affecting student employees. These concerns such as wages, hours, benefits, disciplinary procedures~ and grievance processes, are.all amenable to collective negotiations and will have a direct and primary impact on the employment relationship between student employees and the University. The Legislature has already determined that collective bargaining is the best mechanism for allowing employees full participation in determination of employment conditions which affect them. Providing employees the opportunity for such full participation is also one of the most effective ways of building a harmonious and cooperative labor management relationship. Coverage under the Act will also extend to the University as well -as to the Petitioner, the policy prohibiting unfair labor practices which the Legislature has determined to be contrary to the public interest. Finally, coverage will institute a system for resolution of bargaining impasses which will help avoid the type of labor unrest that the University has experienced through the many recognition strikes by student employees. I therefore conclude that extending coverage will further the Act's purpose of establishing a system of collective bargaining which will foster a harmonious labor management relationship, and encourage joint decision making and consultation between administration and academic employees. 95
The University correctly argues that both PERB and the court in AGSE have recognized the state's policy of encouraging excellence in teaching, research, and learning through the free exchange of ideas among faculty, students and staff, as an additional purpose of Act. It is beyond my authority to reinterpret the purposes of the Act as found by PERB and the court in AGSE. In order to extend coverage to the disputed positions, I must find that coverage encourages excellence within the University. In determining that excellence within the University will be encouraged by extending coverage, I will review several factors such as the impact on the free flow of information, the student faculty mentor relationship, the disruption caused by work stoppages, problems separating.employment from academic issues, potent damage to the stature of the University, conflict rhetoric, issues of intermittent employees, resolution economic/academic conflict, and the potential strain on the University's limited resources. Freeflow of Information Collective bargaining, as envisioned under HEERA, will produce a greater flow information and free exchange of ideas than a tuation where employees are unrepresented. Union witnesses testified about the democratic participation of unit members in the development of issues and proposals to be brought to the table. Representative bargaining teams are selected. Surveys are taken among the membership to ensure that concerns of 96
student employees are voiced to management. Mutual bargaining obligat will ensure that the employment concerns of both parties have a forum for expression. This increase in the free flow of information through the bargaining process does not typically diminish communications between individual students and individual faculty members. The University has cited one instance where communication may be reduced among some student committees at UC Berkeley.w In that one instance, the University proposed to AGSE at the bargaining table that the University would continue to meet and discuss negotiable terms and conditions of employment with other committees which included bargaining unit members. AGSE rejected that proposal. It is a reasonable and legitimate concern on the part of any union that the employer bargain with the exclusive representative. If bypassing the union on negotiable issues were evidence of a restrict in the free flow of information under the Act, the Legislature would not have adopted the concept of exclusive representation, and bargaining throughout the University would not exist as we know it. In any event, the University's argument in this regard is somewhat misplaced. Collective bargaining with an exclusive representative does not 20 Both Dean Duggan and UAW International Representative MaryAnn Massenburg testified regarding this instance. Where theirtestimony conflicts, I credit Massenburg. This is not because Duggan's testimony is unreliable, but rather because Massenburg provided a more complete explanation. 97
prohibit ~he employer from communicating with employees. (Electromation, Inc. (1992) 309 NLRB No. 163 [142 LRRM 1001]; E.I. du Pont de Nemours & Co. (1993) 311 NLRB 893 [143 LRRM 1121] . ) University also argues that collective bargaining will eliminate broad participation throughout the University and instead centralize communications between small groups of students willing to expend time necessary to be on the bargaining team, the UAW agent and a small group of campus administrators. According to the University: The only new voice to be added to the. consultation and decision making process by the advent of a collective bargaining relationship would be the Union's voice. The University believes this would diminish the number of and variety of shared viewpoints. This ignores the fact that the union is given its voice by its members. Employee decisions regarding exclusive representation will no doubt be based in some part on what they feel will be the most fective· way of ing their views heard within the University system. I there reject these arguments and find that the collective bargaining process will increase freeflow of information. Mentor Issues A factor weighing heavily in the decision was potent .impact .oL co.lle.cti;v:e .. bargai,rHi.ng ,on ·the ·mentor relationship. The record in this case does not support a conclusion that collect bargaining will damage mentor relationships. 98
mentor relationship, which is crucial to education at the University and about which numerous University witnesses testif , is limited primarily to the ationship between a graduate student and a dissertation committee chair, or sometimes a commit te·e member. Any impact upon that relationship by HEERA coverage is virtually non-existent. While there were many examples of student employees seeking out certain faculty members for advice, guidance, specif knowledge or letters recommendation, most of these relatio.nships did not rise to the level a true mentor relationship. The University argues that the dec.ision adopted too narrow a definition of a mentor relationship, limiting it to the relationship "between a graduate student and a dissertation chair or sometimes a committee member. 11 - That finding was, however, simply reflective of testimony of many students as well as University witnesses. What was apparent was that a great many faculty and University administrators overestimated their impact as mentors upon students. While not always the case, a more accurate assessment of a mentor relationship usually comes from the individual receiving the mentoring rather than the person who believes the guidance they are giving is so valuable. Even if evidence indicated that a large number of mentor relationships overlapped with employment relationships, extending coverage would not damage those relationships. There is nothing inherent in collective bargaining that precludes a supervisor 99
from being a mentor or a mentor from being a supervisor. Conversely, denying coverage would not enhance the relationships. Potential conflict is a natural part of any relationship, be it employer employee, or faculty-student. As testified by Dr. Hecker: The problems that a contract addresses are not going to go away. If graduate assistants are overworked, if graduate assistants don 1 t have health insurance, if jobs are given arbitrarily, if graduate assistants are dismissed without just cause, you're going to have an angry bunch of graduate assistants ... graduate assistants who are less angry and less concerned because their issues [are] covered by a contract are probably more likely to be better teachers, more likely to be able to focus better on the research they do, whatever theirresponsibilit are. Problems aren 1 t going to go away just because there may not happen to be a collective bargaining agreement someplace. Those problems have to be resolved and this is the best way to resolve them. Having greater clarity about the parameters of the employment relationship, brought about by a collective bargaining agreement or open discourse between the University and an employee chosen representative, will tend to avoid potential conflict between students and faculty rather than create Numerous witnesses called by both the University and the Petitioner, testified that greater clarity of employment rules are ,extremely helpful in avoidance of conflict. While such guidelines might be accomplished through a good faculty handbook or personnel policy manual, providing employees with, greater input into the issues and decisions tends to make any such 100
document more effective and more accepted than one unilaterally developed. The dialogue of collective bargaining can help develop a better roadmap for problem avoidance between faculty mentors and student employees. Most academic or employment disputes between faculty and student are settled informally at early stages where it. is to the advantage of both part to avoid escalation. This is true regarding all of the other bargaining re ionships examined at the hearing. Only a minute number of disputes ever reached the final stages of whichever conflict resolution process was being utilized. This hardly supports the University's argument that one of the most fundamental aspects of graduate education, the student faculty mentor relationship, will be damaged because student employees will have the opportunity to negotiate with faculty members and administrators at the bargaining table, and possibly confront them through a negotiated grievance procedure. University states that UCLA's experience has been that student complaints are most effectively resolved through informal channels. However, there is nothing inherent in collective bargaining which precludes informal resolution of disputes. Quite the contrary true. Every negotiated grievance procedure offered into this record provides for informal conflict resolution stages. It is only if informal methods fail to lead to a mutually agreeable solution that more formal procedures are available. 101
Student employees are no doubt aware of the potentially precarious nature of their relationship with faculty, and the tremendous advantage of maintaining a pos ive relationship with someone on whom they may rely for entrance into graduate school or in establishing their careers. Regardless of the nature of any col ive bargaining grievance process ultimately agreed upon, is unlikely that coverage under HEERA will unleash a frenzy grievances by student employees against their highly valued mentors. unsupported that collective bargaining could unduly restrict the hiring process and therefore negatively impact the mentor relationship does not justify denying coverage. There currently exists many restrictions in the hiring process do not damage those relationships. For example, students must have a 3.0 GPA. They must have taken the course and received an A. Graduate students have priority over undergraduate students. They cannot work more than 50 percent, etc. Moreover, that collective bargaining would lead to student faculty mentor relationships based upon seniority are unjustified. That has not been the result at any other university where bargaining has occurred, nor does HEERA compel the University to agree to this or any other proposal. The University expressed concern that "the apparent need for unions to use the grievance process to justify their continued existence" will generate conflict between faculty and students. Both parties cited a particular workload grievance filed by a GSI 102
in the earth and space science department in support of their positions on this issue. While I make no findings whatsoever about the underlying merits of the grievance, I do conclude that the process used only marginally fostered the free flow of information. For example, a special ad hoc committee established by the department to investigate the matter seemed to make its findings and draw conclusions without ever even talking to the grievant. No doubt some unions have filed grievances and both employers and unions have filed unfair practice charges for tactical reasons. In most cases, however, as stated by several witnesses, it is the conflict which generates the grievance, not the grievance which generates the conflict. This is particularly true in conflict~ involving individual students and individual faculty members, where the organizational impact is less than it would be with larger group grievances. Thus, in situations where grievances are increased and the rhetoric is ratcheted up in an effort to build solidarity for upcoming bargaining, those disputes typically are not the sort of activities which will directly impact individual faculty student mentor relationships. The University offered the testimony of Dean Duggan to show how collective bargaining at UC Berkeley strained the relationship between Duggan, a University spokesperson during one of the previous student employee strikes, and Andy Kahl, a spokesperson for AGSE when they were out on strike. This obviously created strain in their relationship. However, this 103
example does not support the University's position for two reasons. First, Duggan and Kahl were able to re-establish their relationship after the strike. Duggan continued as a member of Kahl's committee and continued reading his dissertation, eventually leading to Kahl' s Ph.D. Even more fundamentally, .. however, the conflict that situation (the student employee strike) was not a result of collective bargaining. Exactly the oppos was true. The strike occurred because the University was refusing to recognize AGSE and engage in collective bargaining. The strike and the resulting strain on the Duggan/Kahl relationship was a direct result of the lack of collective bargaining, not the existence collective bargaining. Finally, several University witnesses expressed fears that collective bargaining in general, and a formal grievance process in particular, would ultimately damage the student faculty relationship because faculty members might retaliate against students if they filed grievances. Witnesses suggested that students would ultimately be better served if disputes were resolved informally within the academic family. If a formal determination was made or a decision issued by an arbitrator that concluded a faculty member had acted inappropriately, illegally, or contrary to provisions in a contract, that faculty member might retaliate academically against the student. Since faculty members play such a vi role in the success of students, the 104
student would ultimately be the loser, according to these witnesses. The argument that rights should be denied to individuals because those in power, when confronted ~ith their alleged misdeeds, might retaliate against those not in power, is unpersuasive. At best, this argument is paternalistic and is based upon a fear of confrontation, rather than a realistic assessment of the impact of collective bargaining. It may be more comfortable for faculty members to avoid being confronted with alleged misdeeds or to avoid final determinations made against them. However, some discomfort and education may be necessary to fairly resolve contested issues. There is no justification for denying individuals rights in order to avoid an improper or illegal overreaction by other individuals opposed to those rights. Such actions are typically counterproductive and are an ineffective method of resolving disputes regardless of their nature. To the extent that the fears expressed are realistic, however, and faculty might actually retaliate against student employees, that dramatically underscores the rather superficial nature of the relationship to begin with. It also vividly demonstrates the potential need for representation and greater protection. After 71 days of formal hearing, involving approximately 200 witnesses, there is simply no credible evidence in this record to support a finding that mentor relationships will deteriorate if 105
the students in question are found to be employees under the Act. Work Stoppages The occurrence of strikes and the potential for strikes was raised by several witnesses. While strikes among student employees in a recognized bargaining unit have occurred as a negotiation pressure tactic (at the University of Michigan for example) they are rare. Most of the strikes referred to by witnesses in this hearing occurred as a demand for recognition. Recognition strikes have occurred at UC Berkeley at least twice, at UC Santa Cruz twice and at UCLA and UCSD. Work stoppages are, by the accounts of most witnesses, one of the most disruptive and adversarial aspects of the ·1abor management relationship. They not only have the potential to strain relationships between an employee and a supervisor, but in a University setting, they have crucial additional negative impacts. Student employee strikes can pit faculty against faculty and can drive a wedge between some faculty and the administration. Strikes can also disrupt the educational process of members of the bargaining unit, whether or not they honor the strike by pitting student against student. Strikes can also draw harsh reaction from the public at large. At a time when the University is continually under siege reg·arding budget issues and under intense public scrutiny for a myriad of other reasons, strikes send a decidedly wrong message to segments of the community. 106
Finally and most important, strikes are enormously disruptive to the educational process of other university students. Most students, and particularly undergraduate students because of the tremendous cost of their education, are faced with a very limited window opportunity completing the coursework. One quarter is a very short period of time for students to absorb a ,huge volume of information. Even a strike of short duration, causing the loss of only a few section meetings, can amount to a major setback students and may have ramifications beyond that particular quarter. While perhaps not as important to many students, delays in submission of grades can also be crucial to students ready to graduate or dealing with prerequisite requirements. Strikes are a breakdown in the labor management relationship and can result in a fundamental disruption of the educational process. Probably more than any other aspect of the labor management relationship, they disrupt the "pursuit of excellence in teaching, research, and learning through the free exchange of ideas among the faculty, students, and staff .... " While the record is not completely clear, it appears that there have been more student employee strikes at the University than the combined total of all the other universities from which witnesses testified at hearing. Given the fact that student employee unions do not have the opportunity to negotiate over academic issues, providing a mechanism for the avoidance 107
strikes .is a significant and effective way to encourage excellence within the University 1 s mission. Legislature recognized how damaging strikes can be to the excellence of the University and its mission. It included a multi-step dispute resolution process which involves the assistance of mediation, a factfinding process, and post factfinding mediation. The Supreme Court recognized the value of that process in San Diego Teachers Association 21 and Regents, where it stated: The University also argues that permitting collective bargaining for housestaff may lead to strikes. However, it is widely recognized that collective •bargaining is an alternative dispute resolution mechanism which diminishes the probability that vital services will be interrupted. [Citation; Regents at p. 623.] The University urges in its brief that extending coverage to student employees will not guarantee the absence of strikes. That absolutely true. As recognized by the Supreme Court 1 it will, however, reduce the likelihood of strikes. Furthermore, the University 1 s denial bargaining rights to student employees has over the.past decade almost guaranteed the presence of strikes. As a policy to avoid the disruption of work stoppages, denying collective bargaining rights to student employees has failed. The University also argues that Petitioner's greatest bargaining power comes from a strike, and that exercise of that 21 San Diego Teachers Association v. Superior Court (1979) 24 Cal. 3d 1 [154 Cal. Rptr. 893] . 108
power would not further excellence in the University because it would hurt other students. That, of course, is the same bargaining power that all the other University unions have as well and the Legislature has not decided that existence of that power destroys excellence in the University. And, as stated above, it is well established in California law that collective bargaining is seen as a method of reducing the risk of strikes. I therefore conclude that extending coverage to the employees in question diminishes the likelihood of strikes. Obligating the parties to participate the mediatory luence of the HEERA impasse procedures will not only help develop a harmonious and cooperative labor management relationship, but will encourage the pursuit of excellence in teaching, research, and learning through the free exchange of ideas among the faculty, students, and staff. Academic vs. Economic Issues The belief that it impossible to successfully separate academic from economic issues is no longer accurate based on the record this case. Witnesses for the Pet ioner testified that parties have been able to separate academic from employment disputes and offered examples. University witnesses testified that is difficult to separate academic from employment issues. conclusion I draw from this record is that although it may be hard work, it is possible to distinguish between the two, and therefore exaggerated fears of overlap between academic and 109
employment issues are not a legitimate reason for denying coverage under HEERA. Many of the collective bargaining agreements entered into evidence in this hearing, along with the negotiating proposals for the AGSE unit at UC Berkeley, contain either explic limitations on the authority of arbitrators regarding academic issues or express reservation of University authority regarding academic matters. Even the University's own conflict resolution process (APM 140) and University proposals at the UC Berkeley bargaining table draw a distinction between academic and employment issues. Other university employers passionately defend their exercise of academic discretion. For them it appears to be the line drawn in the sand. The University Oregon is a good example. There, Dean Upham clearly takes a collaborative approach to collective bargaining. Of the approximately 35 formal grievances filed during his tenure as dean, not a single one has gone to arbitrat His philosophy is that confrontations are not anyone's best interest. His exception to this philosophy, however, concerns issues fundamental to the University's exercise of academic discretion. When such issues arise, University becomes intractable, refusing to inquish these rights. Dr. Julius testified that universit s would probably be even more resistant to giving in to student employee unions than they would with faculty units. Even Dr. Craig, clearly one of 110
the most anti-union, anti-collective bargaining witnesses to testify the hearing 1 acknowledged that there were no provisions in their collective bargaining agreement that felt infringed upon or negatively impacted the academic program at the University of Wisconsin. University of Michigan refused to bargain over an issue that it felt infringed upon its academic discretion. It spent several years litigating the issue and ultimately prevailed. That not only demonstrates how universit shave been able to identi academic issues, but shows they have not rolled over and played dead when their academic discretion is threatened. It also demonstrates that if and when the parties are unable to resolve their differences regarding which issues are bargainable, there are other appropriate forums for resolving such disputes. As noted in Regents: These scope- -representation issues may be resolved by the Board when they arise., since it alone has the responsibility 11 [t]o determine in disputed cases whether a particular item is within or without the scope of representation." . [Regents at p. 623.] Disputes over the scope of representation are manageable issues. PERB and the courts have resolved literally hundreds of scope representation disputes since collective bargaining obligations were extended to California's more than 1100 public school employers-twenty years ago. Numerous scope of representation issues have also been decided under HEERA and the Dills Act. Thus a large, well settled body of law exists this 111
area. The mere potential for scope of representation disputes is not a reason to deny coverage, given the dispute resolution mechanisms available to the parties. As well as believing it is impossible to separate academic from economic issues, the University argues that Petitioner will not attempt to avoid academic issues. It cites as one example of the Petitioner's intrusion into a "purely academic concern," the Petitioner's involvement along with other unions in the UCLA Affirmative Action Coalition, which has organized numerous campus activities in support of affirmative action policies. If a union is eventually certified as an exclusive representative, its membership will be made up of UCLA employees. In joining the union, those individuals do not give up their basic free speech rights to take positions on issues of concern within the academic community. If one wants to speak out either for or against affirmative action policies, either individually or organizationally, for example, one should be free to do so whether one is an undergraduate tutor or chancellor of UCLA. That freedom of expression goes hand in hand with an increased "free exchange of ideas among the faculty, students and staff". It is a separate issue, however, whether the University must bargain with the union over issues which may be outside the scope of negotiation. As discussed earlier, provisions of the Act provide the parties with other procedures fo~ resolving such scope issues. Thus, fear of the union's political advocacy does not form a legitimate basis.for denying rights under the Act. 112
Potential Damage to Stature of the University Another issue relied upon in the AGSE decision was the fear that collective bargaining would damage the stature of the institution and affect its ability to attract and retain the most able and productive faculty and graduate Btudents. There is no credible evidence whatsoever in this record that would support such a finding. The only such evidence offered was from Dr. Craig who repeated second hand speculation that $9.00 per month union dues might dissuade graduate students from choosing the University of Wisconsin. Her fears are undermined by her other testimony that the University of Wisconsin was the first University in the country to negotiate a collective bargaining agreement with graduate student employees and that it remains to this day a world class university with an outstanding reputation. A mature bargaining relationship providing a collective bargaining agreeme~t with clarity over terms and conditions of employment would probably be an enhancement to potential student employees, rather than a deterrent. There is nothing in the record supporting a finding that granting coverage to student employees in this case would affect the University's ability to attract and retain the most able and productive faculty. This is particularly true in light of the fact that faculty themselves are covered under HEERA. Conflicts Between Services and Educational Objectives The University argues that it sacrifices lower labor costs in order to give adequate financial support to student employees. 113
As suggested earl , this argument overlooks the competitive nature recruiting top students. If the Uaiversity did not give adequate financial support to its students would not have the same outstanding students that it now has. Resolving this conflict in any other way would be as detrimental to the University's graduate program as it would to student employees. The University also argues that it gives these positions to the top students rather than to those with the best teaching ability, thus sacrificing its interest in obtaining the best teachers in favor of the student's educational objectives. First, the claim that it gives these positions to the best students rather than the best teachers is not entirely supported by the record. There are numerous methods of selecting student employees, from complex algorithms ·taking much more than academic standing into account, to a mad scramble to find anyone willing to teach the course. Furthermore, the very best students are often supported by fellowships, requiring no work in return. In some cases, more difficult courses are only given to more experienced and better qualified GSis. This does not appear to create any great conflict which is resolved in favor of the student's educational objectives. According to the University, policies applicable to GSI appointments encourage students to make progress toward their degree rather than enable the University to obtain services from the best teachers. Policies limiting appointments to 12 114
quarters, requiring a 3.0 GPA, and limiting hours to 20 per week are all designed to make sure that precedence is given to the GSI's progress toward their degree. Also, significant ef is taken to ensure that departments and individual instructors adhere to the workload hours limit. This, however, is a hollow argument when compared to University's efforts'to encourage GSRs to make progres.s toward their degrees. GSRs are paid to complete their own research and write their dissertation. If the same standards were applied to GSis the University would not be worrying about enforcing the 20 hour work load limit. It is notewor~hy that complaints involving workload seemed to only arise in GSI type of employment and were unheard of from GSRs, whose employment directly supported their educational objectives rather than took time away from them. No one complained that they needed to cut down on_ their GSR hours because it was interfering with dissertation research. The fact that the University makes such an effort to enforce these limits with respect to GSis supports the Petitioner 1 s claim that the work takes time away from pursuit of the degree, rather than encouraging it. Ensuring that only half of GSis' time is devoted to something other than their degree program is not the same thing as encouraging them to make progress on their degree. Furthermore, when the University hires an individual to work 20 hours per week and then discovers that the job takes 25 hours per week because of larger than expected enrollment for example, it is hard for me to see how reducing workload back to 20 115
.hours per week damages interests of the University, unless it claims some entitlement to that extra time. A fair resolution of a legitimate workload dispute can hardly be seen as sacrificing University services for the educational objectives of the GS!. Another example offered by the University is that scheduling conflicts are resolved favor of the student's academic interests rather than the employment responsibilities. Flexible schedules is the nature of the beast when employing students. This is so whether they are employed in the cafeteria, on a grounds crew, or in the disputed t les. The University seems to be able to cope with this issue without any great detriment to the University. In fact given the nature of the jobs student employees perform and the clientele they serve· (other students), a flexible work schedule may actually work to the University's advantage. Overall, given the way potential conflicts are resolved, I do not conclude that service considerations are sacrificed to educational objectives. Part-time/Intermittent Employee Issues There was some testimony by University witnesses that representation of part-time or intermittent employees will be ineffectual and create scontinuity. This was rebutted by union witnesses who gave examples in other industries where such representation can be very effective. Furthermore, there are ample examples within the field of education where part-time or 116
intermittent employees have been represented in a successful manner. In Unit Determination for Employees of the California State University and Colleges (1981) PERB Decision No. 173-H, PERB found a comprehensive unit of faculty, including all full-time and part time instructors, tenured and non-tenured; as well as coaches and librarians, to be appropriate for meeting and conferring under HEERA. PERB has also established separate units of part time faculty in Mendocino Community College District (1981) PERB Decision No. 144 and Long Beach Community College District ( 1989) PERB Decision No. 765. 22 Additionally, in at three districts, the Board found a separate bargaining unit of per diem substitute teachers appropriate under EERA. (Oakland Unified School District (1979) PERB Decision No. 102 and Palo Alto Unified School District/Jefferson Union High School District (1979") PERB Decision No. 84.) Finally, substitute, temporary, hourly, adult education and summer school employees have been consistently included by PERB within bargaining units. 23 22 Part-time faculty were included by PERB in units with full- time faculty in Hartnell Community College District (1979) PERB Decision No. 81 and Marin Community College District (1978) PERB Decision No. 64; adult education teachers were included in the faculty unit in Glendale Community College District (1979) PERB Decision No. 88; and summer school faculty were included in the faculty .unit ... in *Mt ... San .. Anton,io,.-C0mraurni.ty ·Colle:!Je District (1983)PERB Decision No. 292. , e.g., Redwood City School District (1979) PERB Decision No. 107; El Monte Unified School District (1980) PERB Dec ion No. 142; Dixie Unified School District (1981) PERB Decision No. 171; Palo Alto Unified School District (1983) PERB 117
One other issue regarding intermittent employment was the concern that establishment of a bargaining unit might create two classes of employees, one covered and one not covered. The University cites the UCLA practice of using undergraduate students inGSI positions when the University cannot hire enough graduate students to fill all the vacant "GSI opportunities." This, according to the University,. supports the Board's conclusion in AGSE that collective bargaining could create arbitrary distinctions between paid and unpaid students. However, this record is clear that collective bargaining has not created those arbitrary distinctions. The University has already done that. For example, some students have GSHIP, others do not. Some have fee remissions, others do not. Some receive fellowships, others have to work for their paychecks. Some receive pay for educating themselves, others get paid for educating others. These differences do not seem to have created insurmountable problems for the University or its student employees, otherwise it is safe to assume that the University would not have done it. Furthermore, the most inconsistency between paid and unpaid status falls within the GSR ranks, which have already been excluded from coverage for other reasons. Limited Resources of the University Another reason advanced by the University for denying coverage was that bargaining would put increased strain on the Decision No. 352; Fairfield-Suisun Unified School District (1983) PERB Decision No. 370. 118
limited resources of the University. This strain would be caused by the increased staff time necessary to engage in collective. bargaining and contract administration. It would, according to University witnesses, also result from the demands of the Petitioner for better wages and benefits. Any increases granted to unit members would have to be taken from other academic programs, according to University. If this were a legitimate reason for denying collective bargaining rights to employees, there would not be a single unit in existence, in either the public or private sectors. Arguments that union demands will create a financial burden upon the University are entirely appropriate in an election campaign or at the bargaining table, but are not reasons to deny coverage under HEERA. Union Rhetoric University argues that the rhetoric used by unions is counterproductive to a University environment. According to the University: In a collegial·environment, there are sharedassumptions about how colleagues address one another when attempting to resolve a conflict. The rhetoric traditionally employed by unions is antithetical to thiscollegial tradition, and the clash is likethe proverbial fingernail on a chalkboard. It cites the Petitioner's treatment of the sexual harassment issue in the SAGE NEWS as an example of Petitioner's demonstrated tendency to vilify the University and its administrators, and asserts that such rhetoric can diminish a collegial atmosphere. 119
For
an
institution
that
prides
itself
on academic freedom
and
the
benefits
of diverse
viewpoints,
the University
has
rather
thin
skin in
this
area
and
seems
rather intolerant
of the
viewpoints of the
union,
particularly
when
they are
critical
of
the
University administration.
The
record
reflects
that
University's rhetoric
can
be
just
as
positional
and
closed
minded
as
any
of
that
of the
Petitioner.
If
anything,
this
evidence
supports
a
finding
that
the
University's actions
have
decreased
the
exchange
of information.
Erosion
of the Status
Quo
Another
University
argument
is
that
public pressure
and
a
strong
desire to
resolve
conflict
with
s
students
will
lead the
University to
give
in
on
crucial issues
which
may
erode
academic and
administrative
status
quo which
currently
supports
excellence
at
the University.
This
argument
is
a
bit
like
asking
PERB
to
deny
coverage
to
employees
in
order
to protect
the
University
from
its
own
lack of
will,
bargaining
strength or
persuasive
ability at
bargaining
table.
This
is
a
weak
argument
for several reasons.
There
is
ample
evidence
in the
record
that other universities
have been
able to
maintain
their
interests
while bargaining with student
employees. There
also
ample
evidenc{;l
in
the record
that the University has adamantly
and
successfully maintained
its
interests to date during
collective bargaining with student
employees
at
UC
Berkeley.
Finally, there is
nothing in the record suggesting that
a
change
in the status
quo
will
undermine excel at the University.
120Any status quo .at the University of California is clearly a dynamic status quo subject to change at any given time. Coverage Will Further the Purposes of the Act An examination of these second prong issues leads me to conclude that extending coverage to the disputed positions will not only help develop a more harmonious and cooperative labor management relationship, but it will affirmatively encourage excellence within the University. Mutual bargaining obligations will result in a greater flow of information rather than a lessening of information and ideas. Clarity over employment issues provided through collective bargaining agreements will . help avoid disputes which may endanger student faculty relationships. If disputes do arise, a mutually negotiated dispute resolution process can assist the parties with their employment dispute by ensuring some protections .for ·the complainant and a sense of fairness for both parties. Impasse procedures built into the Act will also minimize the possibility of one of the most disruptive aspects of collective bargaining, the work stoppage. These affirmative encouragements of excellence will be gained without other significant negative impacts. A good portion of the University's Prong Two arguments seem to be based upon a distaste for collective bargaining in general, rather than a specific application of the law to the facts in this case. For example, the University's arguments about.a lack of union bargaining power, the nature of unions in a conflicted 121
situation, organizing issues, the strain on finances or administrators time, the negative impact of strikes, and the rhetoric of conflict are merely generalized arguments against unions and collective bargaining and not focused so much on the student employee question. As such, they are applicable to bargaining within units of faculty, skilled crafts, technical, housestaff, clerical and maintenance employees, etc., yet all of these have been found to be appropriate for collective bargaining within the University. For these reasons, I find that the educational objectives of GSis, readers, tutors, special readers, and RT/LSCs are subordinate to the services they provide and that it would further the purposes of the Act to extend coverage to the employees in question. TUTOR SUPERVISORS Findings of Fact There are approximately 32 tutor supervisors employed within CTS and AAP. They are typically students who are hired for a full year. They earn more than tutors because of their additional responsibilities. Tutor supervisors have responsibility over the day-to-day operation of the tutoring programs. They set up work schedules and assign work to tutors. They play a significant role in the training of new tutors and they are expected to evaluate tutors in writing once per year. It appears, however, that once passed the initial quarter, evaluations may be spotty for veteran tutors. 122
Among other dut , tutor supervisors also have responsibility for recruiting, interviewing and selecting tutors. Tutor supervisors recruit applicants and decide which candidates will be interviewed. The first interview is usually conducted in a group setting with several tutor supervisors and·several tutor applicants. If candidates are successful at this stage, they are interviewed individually by t.utor supervisors. 24 Tutor supervisors make their ection, and then set up an interview with either a tutorial lab director or the director of the program. The interviewing process conducted by the tutor supervisors reduces the number of candidates considerably. Out of 90 applicants for the math/science program, only approximately 15 might be selected. Out of 30 or 40 applicants in the English composition program, only abqut a dozen might be hired. Judith Callas, director of CTS, test ied that she has never disagreed with one of selections sent to her by the tutor supervisors. The only times she has not accepted a recommendation is when there was not enough money to hire 1 the tutors. Maria Ramas, coordinator of soc science tutorials within AAP, could recall only a single instance several ago where a selection decision of the tutor supervisor was rejected. That case seemed to be a reflection of poor supervisory judgement 24 There was some testimony that some lab supervisors sit in on the interview process, but this does not appear to occur in many cases. 123
on the part of the tutor supervisor, rather than evidence of a lack of supervisory authority. Most tutor supervisors continue to perform some tutoring at a reduced level. Some, however, do no tutoring at all. Discussion and Conclusion The criteria for supervisory status is enumerated in section 3580.3 of the Act. 11 Supervisory employee 11 means any individual, regardless of the job description or title, having authority, in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Employees whose duties are substantially similar to those of their subordinates shall nOt be considered to be supervisory employees. · The Board has held that the various indicia of supervisory status are to be evaluated in the disjunctive. (Lawrence Livermore National Laboratory (1983) PERB Decision No. 241-C-H, Unit Determination for the State of California (1980) PERB Decision No. ll0c-S (State of California) . 25 Nominal exercise of the statutory criteria is not sufficient to qualify for supervisory :_status .....T.he .employ9-e .,mu-st .. ,demenst-ra-te· independent judgement in the exercise of these functions. (State of 25 Indicia of supervisory status in HEERA parallels that found in the Ralph C. Dills Act (Government Code section 3513(g}). 124
California at p. 8.) Independent judgement is marked by "the opportunity to make a choice between two or more significant alternative courses of action and the power to make that choice without broad review and approval." (State of California at p. 9.) An employee exercises independent judgement by demonstrating significant autonomy and control over the decisionmaking and recommendation processes. If a purported supervisor meets at least one of the statutory criteria, the claim of supervisory status must then be tested against the substantial similarity requirements. The Board has not applied a standard of percentages in interpreting this requirement. Rather, the Board has concluded that substantial similarity occurs at rithe point at which the employees' supervisory obligation to the employer outweighs their entitlement to the rights forded rank-and-file employees." (Id. at pp. 7-8.) Where supervisory obligations exist to the degree that they outweigh rights to organize, an employee no longer performs duties substantially similar to his/her subordinates. Finally, in evaluation of any claim supervisory status, it is important to keep mind the purpose behind the statutory exclusion of supervisors. [E]xclusions are designed to prevent a div:.iaion . .of _wsupervisor.s ! .. .,loyal t~i-es • that ·might occur because of the. negotiating relationshipof the part , concerned as it is with wages, hours, and working conditions .... ( Id . at pp . 9 1 0 . ) 125
The potential for conflict of interest lies in the authority to control personnel decisions, as distinguished from control over work processes, which is at the core of supervisory status. (State of California ~t p. 10.) The University argues that tutor supervisors meet several criteria for supervisory status. According to the University, tutor supervisors have complete responsibility for assigning work to tutors and evaluating them as well as having effective authority to recommend discipline, including dismissal and hiring authority. The record does not support the University's claim on all of these criteria, but it does on some. Evaluations of the tutors, for example, does not meet the supervisory criteria for two reasons. First, it appears to be inconsistently exercised. Second, the evaluations appear to have little effect on any personnel decisions impacting the tutors. The tutor supervisors authority to recommend disciplinary action, including dismissal, is theoretical at best and no concrete examples have been provided. Tutor supervisors do, however, have authority to assign work. While much of the process app~ars -to be a collaborative effort at building a mutually acceptable schedule, tutor supervisors are given wide latitude to ''run the program." This includes some budgetary and staffing decisions. The clearest example of their supervisory authority, however, is their ability to effectively recommend the hiring of 126
tutors. Tutor supervisors start by recruiting applicants,. then screen applications and interview potential tutors. After the interview process, the tutor supervisors effectively select the tutors to be hired. They start with a candidate pool of hundreds and make clear choices rejecting many and selecting few. Although their selections must be approved by either lab supervisors or the CTS director, approval is routinely given. Some tutor supervisors do no tutoring at all. Therefore, there is no question about them performing duties substantially similar to their subordinates. Of the tutor supervisors who have continued to perform tutoring duties, their authority to control significant personnel decisions creates a supervisory obligation to the University outweighing their entitlement to rights afforded rank and file employees, such as tutors. Tutor supervisors are therefore excluded from the unit as supervisory employees. CONCLUSION Based upon the above findings of fact, discussion and the entire record in this case: 1. GSRs are not employees as defined by section 3562(f) of HEERA; 2. GSis, special readers, readers, RT/LSCs, and tutors are employees as defined by section 3562(f) of HEERA; 3. Tutor supervisors are supervisory employees as defined by section 3580.3 of HEERA. 127
The unit description listed in the PROPOSED ORDER below is appropriate for negotiating with the University at the Los Angeles campus provided an employee organization becomes the exclusive representative of that unit. Pursuant to the following ORDER, an ection will be conducted by the PERB San Francisco Regional Director unless the University·grants voluntary recognition to Petitioner. PROPOSED ORDER The following student employee unit is found to be appropriate for meeting and negotiating at the Regents the University of California Los Angeles campus. Shall Include: Graduate Student Instructors Special Readers ReadersRemedial Tutors Part~Time Learning Skills Counselors Tutors Shall Exclude: Graduate Student Researchers (GSR) Tutor Supervisors and all managerial, supervisoria1 and confidential employees, and All other Employees. APPEAL PROCESS Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision and Order shall become final unless a party f a statement exceptions with the Board t at .the- headquart;ers,.off is,e •Baeramento within 20 days service of this Decision. In accordance with PERB Regulations, the statement of exceptions should identify by page citation or exhibit number the portions of the record, any, 128
relied upon for such exceptions. (See Cal. Code of Regs., tit. 8, sec. 32300.) A document is considered 11 filed 11 when actually received before the close of business (5:00 p.m.) on the last day set for filing 11 ••• or when sent by telegraph or certif or Express United States mail, postmarked not than last day set for filing. II (See Cal. Code of Regs., tit. 8, sec. 32135; Code Civ. Proc., sec. 1013 shall apply.) Any statement of exceptions and supporting brief must be served concurrently with its filing upon each party to this proceeding. Proof of service shall accompany each copy served on a party or filed with the Board f. (See Cal. Code of Regs., t . 8, secs. 32300, 32305 and 32140.) James W. Tamm -~- Administrative Law Judge 129
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA
‘DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Case No. SF-RR-813-H
(UC Los Angeles)
Employer,
and
PERB Decision No. 1301-H
STUDENT ASSOCIATION OF GRADUATE
EMPLOYEES, U.A.W., UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, AFL-CIO,
December 11, 1998
Petitioner.
ee eee ee ee eae eee ee ee
Appearances: Proskauer, Rose, Goetz and Mendelsohn by Walter
Cochran-Bond, Attorney, for The Regents of the University of
California; Schwartz, Steinsapir, Dohrmann & Sommers by Margo A.
Feinberg, Attorney, for Student Association of Graduate
Employees, U.A.W., United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO.
Before Caffrey, Chairman; Johnson and Dyer, Members.
DECISION
CAFFREY, Chairman: This case is before the Public
Employment Relations Board (PERB or Board) on exceptions filed by
The Regents of the University of California (University) toa
proposed decision (attached) by a PERB administrative law judge
(ALJ). In the proposed decision, the ALJ determined that student
employees in graduate student instructor (GSI), reader, special
reader, tutor, remedial tutor and part-time learning skills
counselor positions at the University of California, Los Angeles
campus (UCLA), as identified in the request for recognition
petition filed by the Student Association of Graduate Employees,
U.A.W., United Automobile, Aerospace and Agricultural Implement
Workers
of
America,
AFL-CIO
(Petitioner) are
employees
under
the
'
Higher
Education
Employer-Employee
Relations_Act
(HEERA
or
Act).
1
The
ALJ
held
that
a
bargaining
unit
composed
of
employees
in
these
titles
at
UCLA
is
an
appropriate bargaining
unit,
and
he
ordered
that
a
representation election
be
conducted.
The
ALJ
also
found
that
student
employees
in
graduate
student
researcher
(GSR)
and
tutor
supervisor
positions are not
employees
under
HEERA,
and
should
be
excluded
from
the
bargaining
unit.
The
Board
has reviewed
the
entire
record
in
this
case,
including
the
transcript
and
exhibits, the
ALJ's proposed
decision, the University's
statement of exceptions
and
Petitioner's
response
thereto.
Finding
them
to
be
free
of
prejudicial error,
the
Board
hereby adopts
the
ALJ's
findings of
fact
as
the
findings of the
Board
itself.
The
Board
also
adopts
the
ALJ's
conclusions of
law,
as modified
below, and
finds
that
student
employees
in the
GSI,
reader, special reader,
tutor,
remedial
tutor
and
part-time learning
skills
counselor
positions
at
UCLA
are
employees
under
the
HEERA.
INTRODUCTION
Procedural History
Under
HEERA,
an employee
organization
may
request
that
the
University recognize
it
as the exclusive representative of the
employees
of
a
proposed bargaining
unit for the purpose of
1HEERA
is codified at
Government Code
section
3560
et
seq.
Unless otherwise indicated,
all statutory references herein are
to the
Government code.
2
meeting
and
conferring
with
the University
over terms
and
conditions of
employment.
(HEERA
sec.
3573.)
On
March
31, 1994,
the Petitioner
led
a
request
for
recognition
petition
with
PERB
seeking
to
represent
a
proposed
unit
of readers,
tutors,
acting
instructors,
community
teaching
fellows, nursery school
assistants,
teaching
assistants,
associates,
teaching fellows,
and
research
assistants
employed
at
UCLA.
on
May
6, 1994,
the
PERB
San
Francisco
regional
director
determined
that
the
proof of support submitted
by
the
Petitioner
with
the request for recognition
petition
was
sufficient to
meet
the
requirements
of
HEERA. (PERB
Reg.
51030(b).)
2
The
Unive;r-sity
will
grant the
employee
organization's
request
to
become
the exclusive
representative
of the
proposed
unit,
unless,
among
other
reasons,
the University reasonably
doubts
the appropriateness of the
proposed
unit.
(HEERA
sec.
3574.}
On May
23, 1994,
the University
filed
its
response
to
the
petition, asserting
that
the unit
sought
by
the Petitioner
was
inappropriate
because
it
included student
employees
who
are not
employees
as defined
in
HEERA.
The
University also indicated
that to the extent the petitioned-for
titles
included non-student
employees,
those
employees should be
placed in
a
separate
2PERB
regulations are codified at California
Code
of
Regulations,
title
8, section
31001
et
seq.
3
systemwide
unit
or accreted
to
the
existing
systemwide
Non-
Academic
Senate Unit
(Unit
18).
On
June
27, 1994,
the
Petitioner
filed
a
request
for
a PERB
investigation to
determine
the
appropriateness of
the
unit.
(PERB
Reg.
51090.)
The
settlement
conference
on
August 9, 1994,
did
not resolve the matter.
On
September 12,
1994,
the
Petitioner
amended
its
request
for recognition
petition
by
adding
the
special
reader
and
remedial
tutor
positions.
On
September·19,
1994,
the
PERB
regional
director
determined
that
the
amended
request for
recognition
had
sufficient
proof
of support.
Also,
on
September 19,
1994,
the University
filed
a
response
to
the
amended
request for recognition disputing the
appropriateness of
the unit for the
same
reasons
it
opposed
the
original petition.
Additionally,
on September 19, 1994,
the
Petitioner filed
a
motion
with
the
ALJ
to
consolidate the hearing
in
this
case with hearings for related,
but not
identical,
request for recognition
petitions
concerning
the University's
campuses
at
Davis
(UCD),
San Diego
(UCSD),
and
Santa Barbara
(UCSB). 3
The
ALJ
granted the
motion
in part
on
October 28, 1994.
The
ALJ
ordered the consolidation of the records ih the four
request for recognition cases.
The
Petitioner's
request for
a
single
formal hearing covering
all
four cases
was
denied.
3
The motion did not seek consolidation of the petitionsthemselves. At
the time the motion was
filed, the only petition
set for formal hearing involved positions.at
UCSD
(CaseNo. SF-RR-8O5-H).
4
On
December
22, 1994,
the
ALJ
issued
an
order
to
show
cause
on
Petitioner
as
to
why
GSis and
GSRs
should
not
be
dismissed
from
the
petition
based
upon
Association of
Graduate
student
Employees
v.
Public
Employment
Relations
Bd.
(1992)
6
Cal.App.4th
1133
[8
Cal.Rptr.2d
275]
rev.
den. August 13,
1992
(AGSE) . 4 On
March
13,
1995,
the
ALJ
determined
that
GSis and
GSRs
would
not
be
dismissed
from
the
petition,
and
that
the
parties
would
be
given
the
opportunity
to fully
litigate
those
positions
during
the hearing.
The
University
appealed
the
ALJ's
ruling
to
the
Board
itself
and on
July
17, 1995,
the
Board
affirmed
the
ALJ's
ruling
on
the
order
to
show
cause.·
(Regents
of
the University of
California
(1995}
PERB
Order
No.
Ad-269-H.)
On
October 16, 1995,
Petitioner
amended
the request for
recognition
petition
deleting certain tutor
title
codes,
acting
instructors,
community
teaching fellows, nursery school
assistants
and
some
GSR
title
codes.
The amendment
also
added
tutors in other
title
codes and
part-time learning
skills
counselors.
Another
title
code
amendment was
filed
on
October
30, 1995.
As a
result
of these
amendments,
the
titles
at
issue
in
this
case are:
GSR,
GSI,
readers, special readers,
tutors,
remedial
tutors, part-time learning
skills
counselors
and
tutor
supervisors
at
UCLA.
The
ALJ
conducted
thirty-nine
days
of
formal hearing
between
October 18, 1995 and January 10, 1996.
Briefs
were
filed
and
the
4
The
Board's decision in the
AGSE
.case
is
Regents of the
University of California
(1989) PERB
Decision
No. 730-H (Regents(AGSE)).
5
case
was
submitted
for
decision
on
July
16,
1996.
The
ALJ's
proposed
decision
was
issued
on
September
13,
1996.
Following
extensions of
time
granted
to
the
parties to
file
the
University's
exceptions
and
the
Petitioner's
response,
the
filings
were completed
January
10, i997.
The
Statutory
Test
The
University
asserts
that
the
unit
proposed
by
the
Petitioner
is
inappropriate
because
it
includes student
employees
who
are
not
covered
by
HEERA.
HEERA
section
3562(f)
(hereafter
subsection
(f)) defines
an employee
under
HEERA:
'Employee'
or 'higher
education
employee'
means
any employee
of
the
Regents
of
theUniversity 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 servicesthey 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 B9ard must
apply
this definition to
determine
in
this
case whether
students
employed by
the University
at
UCLA
in the
positions
included
in the request for recognition
petition
are
employees under
HEERA
and,
therefore~ are
entitled to negotiate
with the University over
the
terms and
conditions of
their
employment.
Subsection (f)
sets out
a
three-part test to
determine
whether
collective bargaining rights
should be extended
to
student employees.
6
Under
the
first
part
of
..
the
test,
the
Board must
determine
whether
employment
of student
employees
is
contingent
on
their
status
as
students.
If
so,
the
Board must
proceed
to
apply
the
subsection
(f)
test. If
not, the student
employees
are
employees
under
HEERA
and
the
remainder
of the
subsection
(f)
test
need
not
be
applied.
Under
the
second
part
of
the
test,
the
Board must
determine
whether
the services
provided
by
student
employees
are
related to
their
educational objectives.
If
so,
the
Board must
proceed
to
apply
the
third.part
of the
subsection (f)
test. If
the services
provided
by
the student
employees
are unrelated
to
their
educational objectives,
they are
employees
under
HEERA
and
the
third part
of the subsection (f)
test
need
not
be
applied.
The
third part
of
the
test
has
two
prongs.
Under
the
first
prong,
the
Board must
determine whether
the educational
objectives of student
employees
are
subordinate
to
the services
they perform.
Under
the
second prong,
the
Board must
determine
whether coverage
of the student
employees under
HEERA
would
further the
purposes of the
Act.
In order for the
Board
to
conclude
that
student
employees
are
employees under
HEERA,
affirmative determinations
must be
made
under both prongs.
Prior
Cases Involving the Application of the Statutory Test
The
issue of the application of the subsection (f)
test
to
student
academic employees
at the University has
come
before
PERB
in three prior c~ses. In Regents of the University of California
v. Public
Employment
Relations
Bd. (1986) 41
Cal.3d
601
7
[224
Cal.Rptr.
631]
(Regents),
the
Supreme
Court upheld
the
Board
1 s
decision
that
housestaff
(medical
interns, residents
and
clinical
fellows
in
residency
programs
at
University
hospitals)
were employees
under
HEERA.
In
that
case,
the court
considered
the
legislative
history
behind
the
enactment
of
HEERA.
Initially
the court
noted
that
prior to final
passage of
the
Act,
the
Legislature
amended
it
to
remove
a
specific
work
hour
standard
under
which
a
student
employee would be
determined
to
be an
employee
for
purposes of
HEERA.
Thus,
the Legislature
left
the
-determination of student
employee
status to
PERB.
The
court
concluded
that
subsection
(f)
requires
PERB
to
make
a
11
case-by-
case assessment of
the
degree
to
which
a
student's
employment
is
related to his
or her educatidnal
objectives.
11
(Regents
at
p.
607.)
The
court
then considered
whether
the Legislature
intended
the
language
of subsection (f)
to
incorporate the
precedent of
the
National
Labor
Relations
Board
(NLRB),
which
held
that
housestaff in the private sector
were
not
employees under
the
National
Labor
Relations
Act. In
two
NLRB
decisions involving
housestaff,
a
majority of the
NLRB
adopted
a
11
primary purpose''
test
which focused
primarily
on
the students' motivation for
participating in housestaff
programs.
The
NLRB
majority
concluded
that the students' interests in their
own
educational
development by
participating in residency programs, outweighed
their interests in providing services.
The
dissent in these
cases concluded
that the student employees' motivation
was
8
irrelevant,
believing
that
the
focus should
be
confined
to
the
services actually
performed
by
the student
employees.
Based
upon
its
review
of
these
NLRB
decisions,
a
majority
of
the court in
Regents concluded
that
the Legislature
intended
to
create
a n~w
standard in the
HEERA,
rather
than follow
NLRB
precedent.
The
court
found
that
subsection
{f)
represents
a
compromise
between
the
NLRB's
majority
and
dissenting
opinions,
requiring
that
both
factors,
a
student's
purpose
for
participating
in the position
and
the services
provided,
be
considered.
The
court
stated:
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 obligations.
[Regents
at
p.
614,
fn. omitted.]
The
court
instructs, therefore,
that
even
if
all
the student
employees
agreed
that their
purpose
in
seeking student
academic
employment was
to further their
educational objectives, the
Board
could determine
that
those educational objectives
were
subordinate
to the value of the services they provided
to the
University.
Applying
this
standard, the court in
Regents found
that
there
was
substantial evidence to support the Board's finding
9
under prong
one
of
the
third part
of
the
statutory
test,
that
the
educational
objectives
of
housestaff
were
subordinate
to the
services
they provided.
There·was
evidence
that
housestaff
sought
to participate
in
residency
programs
·in
order
to
obtain
extensive
medical
training.
However,
these educational
objectives
were found
to
be
subordinate
to
the
valuable
patient
care services
they
provided.
The
court also
found
support
for the
Board's determination
under prong
two,
that
the
purposes
of
HEERA
would
be
furthered
by
extending
collective
bargaining
rights to
housestaff.
·
The
Board
found
that
there
were
substantial
employment
concerns
which
affect
housestaff
and
that certain issues,
such
as
salaries,
vacation time,
fringe benefits
and
hours,
were
"manifestly
amenable
to collective negotiations."
(Regents
at
p.
622.)
The
Board
also
concluded
that
by
providing
housestaff with
a
mechanism
for resolving disputes,
harmonious and
cooperative
labor
relations
between
the university
and
housestaff
would be
furthered.
Accordingly,
the court
affirmed
the
Board
1 s
determination
that
housestaff
were employees
for
purposes of
HEERA.
PERB
addressed
the student
employee
issue
a
second time
in
Regents
(AGSE).
In
this
case, the
Board
considered whether
graduate students appointed
to
GSI
and
GSR
positions
at
the
University's
Berkeley
campus were employees covered
by
HEERA.
After reviewing the Regents decision, the
Board concluded
that
there
were
significant factual differences
between the housestaff
10
in
Regents
and
the
graduate
student
employees
in
this
case.
The
Board
noted
the
difficulty
in
balancing
a
seemingly
subjective
element
(educational objectives) against
an
objective
one
(services
performed).
Based
upon
these considerations, the
Board
in
Regents
(AGSE}
found
it
necessary
to
"recalibrate" the scale
in the
first
prong
of
the
statutory
test
set
forth in
Regents.
Under
this
new
approach,
the
~oard focused
on
the
apparent
conflicts
between
the student
employees' academic
and
employment
interests.
The
Board
concluded
that
the
educational
objectives
of
GSis and
GSRs
were
not subordinate
to
the services
they
provided because
where
conflict
existed
between academic
and
economic
considerations,
academic
considerations prevailed.
Applying
the
second prong
of the
test,
PERB
also
found
that
the
purposes
of
HEERA
would
not
be
furthered
by
extending
collective
bargaining
rights to
GSis and
GSRs
for several
reasons, including:
(1)
impact
on
the student/faculty
mentor
relationship;
(2)
the
economic
nature of
collective
bargaining
would
override
academic
goals;
(3)
impact
on
the
academic
nature
of the selection
process.;
(
4)
instability resulting
from
the
continuous
movement
of graduate students in
and
out of the unit;
and (5)
the impossibility of separating
academic and economic
matters. Accordingly,
the
Board concluded
that
graduate students
appointed
to
GSI
and
GSR
positions at
the Berkeley
campus
were
not employees
for purposes of
HEERA.
On
appeal, the court in
AGSE
found
that the
Board
erred
by
·establishing
a new
test
which
conflicted with the standard set
11
forth
in
Regents.
The
court
held
that
the
Board's
"recalibration
of the scales"
had
so
distorted
the
first
prong
of
the
test
that
the
Board's conclusion
was
suspect unless
saved
by
its
ruling
under
the
second prong.
The
court
stated
the
proper
test
under
the
first
prong:
'Case-by-case
analysis'
would
call
upon
PERB
to
consider
all
the
ways
in
which
GSI
and
GSR
employment
meet
educational
objectives of the
students
and
all
the
ways
in
which
the
employment
provides
services
and
to
compare
the
value
and
effectiveness of the
employment
in
meeting
the students' educational
objectives
with
the
value
and
effectiveness
of
the
employment
in
providing
services.
PERB,
with
its
expertise,
would
then
make
a
judgment
about
whether
the
employment
was
more
valuable
and
effective in
meeting
educational objectives or
in
providing
service
to
the University:
whether
the'educational objectives are subordinate
to
the services' the students
perform.
[AGSE
at
p.
1143, emphasis
in
original.]
Although
the court rejected the Board's
first
prong
test,
it
upheld
the
Board's conclusion
that
GSis and
GSRs
were
not
employees under
HEERA,
finding
that
there
was
substantial
evidence
to
support
the
Board's determination
that
the
purposes
of
HEERA
would
not
be
furthered
by
extending
collective
bargaining
rights to
GSis and
GSRs.
The Board
recently applied the
guidance contained
in these
two
prior
cases in
determining whether
HEERA
coverage should be
extended
to certain student
academic employees
at
UCSD.
In
Regents of the University of California
(1998)
PERB
Decision
12
No. 1261-H (UC San Diego), the Board determined that students
employed as readers, tutors and associates at UCSD are employees
under HEERA.
In UC San Diego, the Boar~ rejected the University's
assertion under prong one of the third part of the subsection (f)
test, that the educational objectives of the student academic
employees at issue were not subordinate to the services they
performed. Referring to the prior court decisions, the Board
stated:
The AGSE court instructs that 'the statute
and Regents decision call for a value
judgment about which is subordinate, not a
scientific weighing ~rocess.' In making this
value judgment, the Board must consider how
vital employment as a reader, tutor or
associate is to the achievement of students'
educational objectives, and how vital the
services provided by readers, tutors and
associates are to the accomplishment of the
educational mission of the University. In
Regents, the court applied this part of the
subsection (f) test by considering whether
'services must be performed without regard to
whether they will provide any educational
benefit' to the students performing them.
(UC San Diego at p. 20.)
The Board then concluded that, because the services provided by
readers, tutors and associates were vital to the academic mission
of the University, and were not vital to the accomplishment of
educational objectives, the educational objectives of student
employees in those positions were subordinate to the services
they performed.
The Board in UC San Diego also determined that coverage
under HEERA of the student academic employees at issue would
13
further the
purposes
of
the
Act.
In
response
to
the University's
arguments
to
the
contrary.,
the
Board
noted
the
expressed
purpose
of
HEERA,
at
section
3560(e),
to
provide
for
relations
between
the
higher education
employer and
its
employees which
permit
the
fullest
participation
of
employees
in
determining
the conditions
of
their
employment.
The
Board
stated:
It
is
axiomatic,
therefore,
that
theextension of
collective
bargaining
rights
to
University
employees
is
consistent
with,
and
in
furtherance of, the
expressed purpose
of
HEERA. To
the extent
that
the University's
position
is
based
on
the assertion
that
extending
collective
bargaining
rights to
student
academic employees
would
fundamentally
conflict
with
the University's
educational
mission,
that
position
ignores
and
is
inconsistent
with
HEERA1s
expressed
purpose.
[UC
San Diego
at
p. 28.]
The·
Board
noted
HEERA
provisions
which
preserve
and
encourage
academic freedom,
shared
governance and
joint
decisionmaking
between
the University
and
its
faculty,
and
peer review
and
tenure
systems
for
academic employees.
The
Board
also cited
HEERA
provisions
which
exclude
from
the
scope
of representation
subjects
which
could
intrude in these
academic
areas.
The
Board
stated:
HEERA
encourages
the
11
pursuit of excellence"
at
the University.
Harmonious and
cooperative labor
relations result
from
a
system
of collective
bargaining
between
theUniversity
and
its
employees which
respects
the concept of
academic freedom. Under
.HEERA~,
.these,-,,Goneepts-
-·
•ooll·e·ctive
bargainingand academic freedom
-
coexist
and complement
one
another.
They
are not mutually
exclusive, as
much
of the University's
argument seems
to suggest.
(UC
San Diego
at
p.
30.)
14
•
As
noted
above,
the
record
in
UC
San Diego and
the
case
at
bar
have been
consolidated. In
UC
San
Diego,
the
Board
applied
the
guidance
included
in the
prior
cases invplving
the
application
of
the
subsection
(f)
test
to
student
academic
employees
at
the
University,
and
concluded
that
the
student
employees
at
issue
were employees
under
HEERA.
The
Board
is
guided
by
its
reasoning
in
UC
San
Diego
in
the application of the
subsection (f)
test
here.
DISCUSSION
Petitioner offers
no
exceptions
to
the
ALJ's
finding
that
GSRs
are
not
employees
under
subsection
{f)
and,
therefore, are
not
covered under
HEERA.
Petitioner also offers
no
exceptions
to
the
ALJ's
finding
that tutor
supervisors are supervisory
employees
as defined in
HEERA
section
3580.3 and,
therefore, are
not
covered under
HEERA.
The Board.
adopts
these findings
by
the
ALJ
as
the
findings of the
Board
itself.·
As a
result,
the
following
discussion pertains to the positions of
GSis,
reader,
special reader,
tutor,
remedial
tutor
and
part-time learning
skills
counselor.
The
Constitutional Issue
In
its
exceptions
to the
ALJ's proposed
decision, the
University for the
first
time
raises
a
constitutional issue.
The
University argues
that the application of
HEERA
to student
academic employees, such as those
at issue here,
would
violate
Article
IX,
Section
9
of the California Constitution,
which
states, in pertinent part:
15
The
University of
California
shall constitute
a
public
trust,
to
be
administered
by
the
existing
corporation
known
as
'The
Regents
of
the
University of
California,'
with
full
powers
of organization
and_government,
subject
only
to
such
legislative
control
as
may
be
necessary
to
insure the
security
of
its
funds
and
compliance
with
the
terms
of
the
endowments
of
the university
and
such
competitive bidding procedures
as
may
be
made
applicable
to
the university
by
statute
for
the
letting
of construction
contracts, sales
of
real
property,
and
purchasing
of
materials,
goods,
and
services.
The
University
asserts
that
HEERA
coverage
of student
academic
employees
would
interfere
with
certain central
functions of
the
University,
and
thereby
violate the constitutional
restriction
that
the
11
full
powers
of organization
and government"
reserved
to
the
Regents
of the University
may
be
subject
only
to limited
·legislative
control.
The
University
does
not
argue
that
HEERA
coverage
of
any
of
its
employees
interferes
with
its
central
functions
in violation
of
this
constitutional
restriction.
Instead, the University
asserts that
the implications of
this
constitutional issue
with regard
to
HEERA
coverage
of
its
employees
are
narrow
-
limited to student
academic employees
only.
The
University explains:
The
Legislature,
at
the
time
it
was
considering the
enactment
of
a
collectivebargaining
statute that
would be
applicable
to the University,
was
aware
of the
limitations
imposed by
article
IX,
section
9.
It
invited the University to participate in
.
--neg-Gtiating,-the-terms· ·Of
0 0
'
~he··,st:atuteT and·
the
resulting statutory
language
reflected the
extent to
which
the University
was
willing to
become
voluntarily subject to the collectivebargaining
scheme
created
by
the Act.
As a
result of this collaborative process, the
constitutional issue of whether the
16
Legislature
had
the
power
to
enact
HEERA
over
the University's
objection did
not
arise,
because
the
University
agreed
to participate
in the
framework
created
by
the
statute.
The
extent
of
the University's
agreement
is
reflected
in the
language
of
the
statute.
The
text
makes
it
clear
that
the
Act
intends
that
all
of the University's
non-academic
emp.loyees
and
some
of
its
academic employees
will participate
in
its
procedures~ Forexample,
the
statute
clearly indicates
an
intention to
cover
tenured
faculty.
(Gov.
Code,
§
3579,
subd.
(e).)
And
the
Universityhas
consistently
abided
by
these provisions.
The same
is
not
true
with
respect
to
student
academic employees.
Rather,
the
statute
includes
section
3562,
subdivision
(f)
which
expressly
limits
HEERA
coverage
to
only
certain
student
employees.
The
University points
out
that
it
has
consistently
argued
in the
prior
cases
cited
·above
that
the
language
of subsection (f)
is
sufficient to
exclude
student
academic employees
from
HEERA
coverage.
Throughout
this litigation,
it
was
the
University's position
that
the
two-pronged
test
was
intended
to
exclude
student
academic
employees such
as housestaff.
Since
theUniversity
was
confident
that
the
two-pronged
test
sufficiently
addressed
its
concerns,
it
was
not necessary
to raise the
article
IX,
section
9
issue,
and
constitutional issues
are to
be avoided
when a
case
can be
resolved
on
other
grounds.
However,
while
the University's
view
prevailed in
AGSE,
the court
in
Regents and
the
PERB ALJ
in the case
at
bar determined
that
certain-
.
.s.tudent vacade.miG- emp-le¥ees ~•are,.,entit·led to·,HEERA
coverage. Thus,
the University concludes:
The
ALJ's departure
from Board
precedent, and
the decision of the
Supreme Court in the
housestaff case, in
which
the constitutionai
17
issue
was
not
addressed,
make
it
necessary
now
to
appraise the
Board
of
the
constitutional
issues
we
have
sought
to
avoid,
and
to
urge
an
interpretation
of
the
statute
which
is
consistent
with
the
powers
and
duties
assigned
by
the Constitution
to
the Legislature
and
the University
respectively
..
The
Board
declines
to
adopt
the
interpretation
of
HEERA
with
regard
to
this
constitutional
issue
which
the
University
advances.
PERB
is
an
administrative
agency,
established in
Government
Code
section
3541, and
expressly
charged
with
the authority to·
administer
the
HEERA (HEERA
sec.
3563).
Article
III,
section
3.5
of
the California Constitution
states:
An
administrative
agency,
including
an
administrative
agency
created
by
the
Constitution or
an
initiative statute,
has
no
power:
(a)
To
declare
a
statute
unenforceable,
or
refuse
to
enforce
a
statute,
on
the basis of
it
being
unconstitutional unless
an
appellatecourt
has
made
a
determination
that
such
statute
is
unconstitutional;
(b)
To
declare
a
statute
unconstitutional;
(c}
To
declare
a
statute
unenforceable, or
to refuse
to
enforce
a
statue
on
the basis
that
federal
law
or federal regulations
prohibit the
enforcement
of
such
a
statueunless
an
appellate court
has
made
a
determination
that the
enforcement
of
such
statute is
prohibited
by
federal
law
or
federal regulations.
[New
sec.
adopted
June 6, 1978.J
While
the University does not seek
from
PERB a
ruling that
the
HEERA
is unconstitutional,
it
asks the
Board
to
conclude
that
student academic employees do
not meet
the subsection (f)
test
18
because
of
the constitutional constraints
imposed by
Article
IX,
section
9.
A
Board
decision
adopting
the
University
1 s
argument
would
represent
a
finding
that
the
subsection
(f)
test is
constitutionally
unenforceable with regard
to
student
academic
employees.
The
issue
of
HEERA
coverage
of
student
academic
employees
has
been
before
the appellate courts
in
two
prior
cases, but
neither the
University
nor
the court
has
raised
this
constitutional
issue in
the application
of
the subsection
(f)
test
in
those cases.
As a
result,
there
has
been
no
appellate
court
determination
on
the issue. Prior to
such
a
determination,
PERB
has
no power,
pursuant
to Article
III,
section 3.5,
to
make
the finding
which
the
University
urges
it
to
make.
At
such time as
this
issue
is
presented
to
an
appellate
court, the court
no
doubt
will
consider
HEERA's
specific
references
to
the University's constitutional status
and
responsibilities.
Section
3560(c)
states,
in pertinent part:
The
people of the
state
of California
have
established
a
system
of higher educationunder
the Constitution of the State
of
California
with
the intention of providing
anacademic
community
with
full
freedom
of
inquiry
and
insulation
from
political
influence in the administration thereof.
Section
3560(d}
states:
The
people
and
the
aforementioned higher
education employers each have
a
fundamental
interest in the preservation
and promotion
of
. :the- :r:esponsib:il:it::ies-~grank:;ed,.by·~the pe·ople'
of
the State of California.
Harmonious
relations
between each higher educationemployer and
its
employees
are necessary to
that
endeavor.
And
Section 3560(e)
states, in pertinent part:
19
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 conditionsof
employment which
affect
them.
It
appears
from
these.references
that
the Legislature
was
well
aware
of
the University's constitutional status,
and
intended
that
the
system
of
collective
bargaining
which
it
established in
enacting the
HEERA
would
not
interfere
with
the University's
constitutional authority
over
its
central
functions.
The
University
asserts that
HEERA
coverage
of student
academic employees
interferes
with
several of those
central
functions, including the
academic'
aspects of
the administration·
of the University, the establishment of curriculum,
and
the
establishment of
patterns
of
internal
governance.
However,
consistent
with
the Legislature's
acknowledgment
of the
University's constitutional responsibilities,
HEERA
specifically
excludes
from
the
scope
of representation
11
any
service, activity
or
program
established
by law
or resolution of the regents or the
directors,"
as well as
11
the content
and
supervision of courses,
curricula
and
research
programs."
(HEERA
sec. 3562(q).)
Further,
HEERA
seeks
to preserve
and encourage
the.relationship
between
the University
and
its
academic employees which is·
11
the
long-accepted
manner
of governing
institutions of higher
learning.
n (HEERA
sec. 3561(b) .)
20
The
University
argues
that
HEERA
interferes
with
its
central
functions
in violation
of
the
constitutional
restrictions
only
with
regard
to
student
academic employees.
When
HEERA
was
being
drafted,
the University
asserts,
it
voluntarily
agreed
to
a
system
of
collective
bargaining without
raising
the
constitutional
issue,
provided
that
subsection
(f)
was
included
in the
statute to
make
clear
that
HEERA
coverage does
not
extend
to
student
academic employees.
5
The
Regents
court
looked
to
the
legislative
history
of
the
HEERA
to
determine
whether
the
Act
precluded
the housestaff
at
issue in
that
case
from
being considered
employees
under
subsection
(f).
The
court
noted
that
housestaff are
clearly
not
eliminated
from
HEERA
coverage
by
the
language
of subsection
(f),
and
stated:
Although
the
statute
is silent
on
the subjectof housestaff,
it
clearly
leaves
open
the
possibility that
such
persons
may come
within
it.
As
the
words
of the
statute
make
clear,the Legislature
intended
that
PERB
determinewhether
a
particular
student
qualifies
as
anemployee
under
the
Act. [Regents
at
p. 607.J
Clearly, the
ranguage
of subsection (f)
does
not
mandate
that
student
academic employees be excluded
from
HEERA
coverage.
Rather,
it
establishes the
test
for determining whether coverage
should be extended
to
them.
PERB's
primary
right,
power, duty and
responsibility,
as
described in
HEERA
section 3563(a),
is
"To
determine
in disputed
5
Interestingly, the University has voluntarily extended
HEERA
collective bargaining rights to certain student academic
employees
at the Berkeley campus, including readers and
tutors.
21
cases,
or
otherwise
approve,
appropriate
units."
It
is
PERB's
duty
and
responsibility to
apply
the
subsection
(f)
test
to
determine whether
the
proposed
unit
in
this
case,
consisting
of
student
academic employees,
is_an
appropriate
unit.
The
Board
rejects
the University's
argument
that
PERB
should
find the
application of the
test
to
student
academic employees
to
be
in
violation
of
the constitutional
restrictions
of
Article
IX,
section
9.
Application of
the Statutory
Test
In order
to
determine
if
the student
academic employees
at
issue in
this
case
are
entitled to
HEERA
coverage,
the
Board
applies the
three-part
subsection
(f)
test
described
above.
Part
One:
Is
Employment
Contingent
on
Student
Status?
With
regard
to
GSis,
readers, special readers
and
tutors,
the
ALJ
finds
that
employment
in these positions
is
contingent
on
student
status.
The
parties offer
no
exceptions
to
this
finding,
which
the
Board
adopts as
its
own
conclusion.
The
ALJ
finds
that
since non-students serve
in
remedial
tutor
and
part-time learning
skills
counselor
positions,
employment
in these positions
is
not contingent
on
student
status.
Based on
this
finding alone,
employees
in these
positions are
covered under
HEERA
pursuant
to the subsection (f)
test.
The Board addressed similar findings
by
the
ALJ
in the
UC
San Diego
case.
The Board
states:
...
part
one of the subsection (f)
testrequires
PERB
in this case to determine
22
whether
the
employment
of students as
readers,
tutors
and
associates
is
contingent
on
their
status
as
students.
The
fact that
the
University
may
employ
non-students
to
perform
some
of
the
same
functions as
these
student
employees
is
irrelevant to
the
Board's determination.
(UC
San Diego
at
p.
14; emphasis
in
original;
fn. omitted.)
The
Board
also
noted
that
the court in
Regents ·observed
that
the
employees
at
issue in
that
case lacked
11
most
~ndicia
of student
status.
11
(Regents
at
p.
620.)
However,
the court did not
apply
a
requirement of
current
registration
as
a
student
in
order
to
proceed
to
apply
the
subsection
(f)
test.
It
is
clear
from
the record
that
students
employed
in
remedial
tutor
and
part-time learning
skills
counselor
positions
were
given preference for
e~ployment
because
of
their
student
status.
While
some
non-students
may
be
placed
in these
positions,
under
the
approach adopted
by
the
Board
in
UC
San
Diego,
the
employment
of students in these positions
is
clearly
contingent
on
their status
as students.
The
Board
concludes
that
the
employment
of students in
all
of the positions
at
issue,
is
contingent
on
their status
as
students.
Thus,
we
reverse the
ALJ's
contrary finding with
regard
to
remedial
tutors
and
part-time learning
skills
counselors.
6
6
Member
Dyer
agrees with the
ALJ's determination
that
the
employment
of remedial
tutors
and
part-time learning
skills
counse1ors
is--not. c-ent4:ngent:"'On
·their status
-as,.·students and
that,
consequently, they are
employees under
HEERA.
Accordingly,
Member
Dyer does not join in the Board's analysis of Part
One
of
the statutory test
with respect to those positions.
However,Member
Dyer
agrees that the application of the remainder of the
statutory test also leads to the conclusion that student academic
employees
in all the disputed positions in this case are
23
Part
Two:
Are
the
Services
Provided
by
the
Student
Employees
Related
to
Their
Educ~tional
Objectives?
The
ALJ
finds
that
the services
provided
by
student
employees
in
all
the
disputed
positions are
related to
their
educational
objectives.
The
parties offer
no
exceptions
to
this
finding,
which
the
Board
adopts
as
its
own
conclusion.
Part
Three
-
Prong
One:
Are
the
Educational
Objectives
of
thestudent
Employees
Subordinate
to
the
Services
They
Perform?
The
ALJ
finds
that
the
educational
objectives of students
employed
as
GSis,
readers, special readers,
tutors,
remedial
tutors
and
part-time learning
skills
counselors
are
subordinate
to
the services
they
perform.
The
University excepts
to
this
finding, arguing
that
employment
in these positions
is
of
greater
value
and
effectiveness in
meeting
the educational objectives of students
than
in
providing
services
to
the University.
Employment
in the
positions
at
issue
assists
student
employees
in
meeting
their
educational objectives.
Those
objectives include mastering
a
particular
subject matter,
and
preparing the student to
achieve
educational
and
career goals.
The
University
asserts that
the
services
provided
by
student
academic employees
could
be provided
as well,
if
not
better,
by
non-students
at
an
equivalent or
reduced
overall cost to the University. Therefore, argues the
University, under
the
AGSE
court guidance, the value
and
effectiveness of the
employment
in
meeting educational objectives
employees under the
HEERA.
Therefore,
Member
Dyer
specifically
joins in the Board's analysis of Parts
Two
and Three of the
statutory test.
24
is
greater
than
its
value
and
effectiveness
in
providing
services.
Thus,
the
educational
objectives
of these student
academic employees
are
not subordinate
to
the services
they
perform,
and
they
fail
to
meet
the
first
prong
of
this
part
of
the
subsection
(f)
test.
The
Board
disagrees.
Under
this
prong
of
the
subsection
(f)
test,
the
Board,
on
a
case-by-case
basis,
must
consider
all
the
ways employment
in the
disputed
positions
meets
the
educational
objectives
of students,
and
all
the
ways
it
provides
services
to
the
University.
PERB
must
then
"make
a
value
judgment
about whether
the
employment
was
more
valuable
and
effective in
meeting
educational objectives or
in
providing
service
to
the University.
11
(AGSE
at
p.
1143.)
The
Board
is
not expected
to
engage
in
a
scientific
weighing
process,
but
to exercise
its
judgment
about
which
factor
-
service or
educational objectives
-
is
subordinate. In
Regents,
the court
applied
this
part
of the subsection (f)
test
by
considering
whether
"services
must be performed
without regard
to
whether
they
will
provide
any
educational benefit" to the
students,
performing
them.
The Board
in
UC
San Diego
exercis'ed
its
judgment and
determined
that
the
employment was
not
vital
to
students'
ability to
achieve
their
educational objectives, but
that the services
performed were
vital to the University's
ability to
accomplish
its
mission.
Here,
the record establishes that
while
employment
in the
disputed positions contributes to the accomplishment of
25
educational
objectives,
it
is
not
vital
to
achieving
them.
It
can
not
be
concluded
from
the
evidence
that
students
deprived
of
the
opportunity
for
employment
in
these positions
would
fail
to
achieve
their
educational
objectives. Instead,
it
is
reasonable
to
conclude
that
affected students
would
find other
means
to
accomplish
those
objectives,
as
do
the
many
students
who
currently
do
not serve
in the positions
in·
dispute in
this
case.
Conversely,
the services
performed
by
the
student
academic
employees
in dispute are
vital
to the
University
and must be
performed
without regard
to
whether
they provide
any
educational
benefit to
student
employees.
The
University
asserts that
these
services
can be
provided
more
efficiently
and
effectively
by
non-
students, but
does
not suggest
that
they
can be
eliminated.
The
University
implicitly
acknowledges
the
need
to
maintain
these
services in order
to
achieve
its
mission,
regardless of
whether
the services are
performed
by
students.
7
The
Board
concludes
that
employment
in the
disputed
positions
is
more
valuable
and
effective in
providing
service to
the University than
in
meeting
the educational objectives of
students. Therefore, the
Board
adopts
the findings of the
ALJ
that
the educational objectives of the student
academic employees
7
Non-students performing
the services provided
by
student
employees
•-in•••theM
di-si;:.iu,t:.-e,d
···posit·:i:ons·"wou:ld·•be ~emp'l"oye·es
entitled
to
HEERA
coverage.
The
University's response
to the request for
recognition petition includes the assertion that
any
non-students
in these positions should be placed in
the existing
systemwide
non-academic senate instructor bargaining unit, or
a
separatesystemwide
unit, for purposes of collective bargaining underHEERA.
26
at
issue in
this
case
are
subordinate
to
the services
they
perform.
Part
Three
-
Prong
Two:
Would
Coverage
of
the
Student
Employees
Under
HEERA
Further the
Purposes
of the
Act?
The
University
excepts
to
the
ALJ's
finding
that
HEERA
coverage
of the student
academic employees
at
issue
would
further
the
purposes
of
the
Act.
As
in
UC
San
Diego,
the University
asserts
that
since the
Board
in
Regents
(AGSE}
found
that
HEERA
coverage
of
GSis
at
the
University's
Berkeley
campus
would
not
further the
purposes
of
the
Act,
the
Petitioner
in
this
case has
11
the
burden
to
come
forward
with
evidence
of circumstances
that
did not
exist
in
1985
•••
and
to
show
that
these
changed
circumstances
require
a
rejection
of
the
Board's
prior
determinations."
The
University
argues
that
the
ALJ
did not require the
Petitioner to
meet
this
burden and,
therefore,
applied
the
wrong
legal
standard
under
this part
of the subsection
(f)
test.
The
University seeks
to create
a
burden
for the Petitioner
beyond
that
which
was
intended
by
the
Board.
As
noted
in the
procedural
history
above,
the
Board
in
Regents
of the University
of California
(1995)
PERB
Order
No. Ad-269-H
affirmed the
ALJ's
Ruling
on
Order
to
Show
Ca~se
why
GSis and
GSRs
should not
be
dismissed
from
the petition in
this
case in light
of
the court's
AGSE
decision..
-In
....
bo,neluding·•that,the
·•p0s-i:ti"Ons
·should not
be
dismissed
from
the petition, the
ALJ
determined
that the unique
circumstances of each campus,
as well as changes and developments
occurring in the ten years since the
AGSE
record
was developed,
27
should
be
considered.
It
was
not
the
Board's
intent
in
affirming
the
ALJ
1 s
ruling
to establish
a
burden under
which
the
Petitioner
would
be
required
to
present
a
detailed
comparison
to
the
AGSE
Berkeley
record
in
order
to
demonstrate
specific
changed
circumstances
at
UCLA.
Instead, the
Board
intended
that
the
circumstances
relating to
the
disputed
UCLA
positions
should
be
·
examined
in
detail
in
reference
to
the
prior
cases, including
AGSE.
However,
,the
application of the
subsection {f)
test
to
student
academic employees must
occur
on
a
case-by-case
basis,
based
primarily
on
the
unique circumstances
of
a
particular
campus
at
the
time
the
test is
applied.
Questions
of representation are inherently
dynamic.
As
a
result,
the
Board
has
long
held
that
representation matters
are
subject to
periodic
re-examination,
especially
where
no
representative
is
in place. Prior unit
determinations are
binding only nto
the extent
that
circumstances
are the
same
and
Board
precedent
remains
the
same.
11
{Regents
of the University of
California
{1986)
PERB
Decision
No.
586-H
at
pp. 6-7; see also,
State of California
(Department
of
Personnel Administration)
(1990)
PERB
Decision
No.
794-S.)
In
Regents
(AGSE),
the
Board
considered conditions
and
job
duties existing
at
the University's
Berkeley
campus
in
1984.
In
UC
San Diego,
conditions
and
job duties existing at the
San Diego
campus more
than ten years
later
were
considered.
As
noted
above,
these cases provide the
Board with guidance, but the
Board
1 s
responsibility remains
to apply the subsection {f)
test
28
to
determine
the
status
under
HEER.A
of
student
academic employees
in the
disputed
positions
at
UCLA
based
on
the
record
in
this
case.
The
University
offers
extensive
argument
in
support of
its
position
that
HEERA
coverage
of student
academic employees
will
not
further the
purposes
of the
Act.
The
University
points
to
HEERA
section
3561(c),
which
states:
It
is
the policy of
the State
of California
to
encourage
the pursuit
of excellence
inteaching, 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
theUniversity of California,
Hastings College of
the
Law,
and
the California StateUniversity.
The
University
asserts that this
section
demonstrates
that
the
extension of
collective
bargaining
rights to
student
academic
employees would
not
further the
purposes of
HEERA.
According
to
the university, section
3561(c):
...
is
a
legislative
acknowledgement
thatCalifornia's
system
of higher education has
special
and
vital
features
that
could
be
seriously
damaged
by
the imposition of
collective
bargaining
rights for student
academic employees.
The
University misconstrues the
meaning
of section
3561(c)
and
misinterprets the
purposes of
HEERA.
Those purposes are
stated in
HEERA
sections
3560 and 3561.
HEERA
section
3560
states, in pertinent part:
(a) The
people of the State of Californiahave a fundamental
interest in the
29
development
of
harmonious and
cooperative
labor
relations
between
the public
institutions
of higher education
and
their
employees.
(d) The
people
and
the
aforementioned
highereducation
employers each have
a
fundamental
interest
in
the preservation
and
promotion
of
the
responsibilities
granted
by
the
people of
the
state
of California.
Harmonious
relations
between
each
higher education
employer and
its
employees
are
necessary
to
that
endeavor.
(e)
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
theConstitution
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.
HEERA
section
3561
states,
in pertinent part:
(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.
Thus, HEERA's
expressed purpose
is to foster
harmonious and
cooperative labor relations
by
providing for
a
system of
collective bargaining between the University and
its
employees.
30
It
is
axiomatic
that
this
purpose
is
furthered
by
the
extension
of
collective
bargaining
rights to
those
employees
determined
by
PERB
to
meet
the
subsection
(f)
test.
The
policy
expressed
within
HEERA
section
3561(c)
11
to
encourage
the
pursuit
of excellence
in
teaching, research
and
learning"
is
achieved
11
through
the free
exchange
of ideas
among
the faculty, students,
and
staff
of
the
University of California"
and
through
a
system
which
seeks
11
to
preserve
academic,
freedom
in
the
University of California."
This
is
the
very
system
established
by
HEERA.
contrary
to
the University's
contention,
HEERA
presents
a
framework
under
which
the
pursuit
of
academic
excellence, the free
exchange
of ideas, the preservation of
academic freedom, and
collective
bargaining
all
co-exist
and
complement one
another.
These
purposes
and
policies
do
not
inherently
conflict
with
one
another,
and
are not
mutually
exclusive, as
much
of the University's
argument
asserts.
The
University
makes a number
of
specific assertions
concerning
the detrimental
effects
of
extending
HEERA
coverage
to
student
academic employees.
Among
them
are:
Collective bargaining
would
interfere
withacademic
policy
because most
subjects of
bargaining
have
the potential to
encroach
on
the
academic domain.
Collective bargaining could
interfere
with
selection
procedures for
academic
apprentice
... appo;i,,nt.meFtts, ••rep.J:aeing · aeadem±c
considerations with economic
considerations.
Collective bargaining
would
interfere with
the
academic
senate's role in
making academic
policy.
31
In
considering
similar
arguments
by
the
University,
the
court
in
Regents
characterized the
arguments
as
a
11
doomsday
cry"
which
was
11
somewhat
exaggerated
11
and
11
premature.
11
Moreover,
the
court
held
that
"The
argument
basically
concerns
the
appropriate
scope
of
representation."
(Regents
at
p.
623.)
HEERA
contains extensive
guidance
and
specific
restrictions
on
the
scope
of
representation
to
ensure
that
providing
collective
bargaining
coverage
for
employees
will
not
interfere
with
the pursuit_of
academic
excellence
and
the
academic
policies
and
procedures
which
both
the
University
and
HEERA
seek
to
preserve.
For example,
HEERA
section
3562(q)
(1)
states that
the
scope
of representation
at
the
University
shall
not include:
Consideration of the merits, necessity, ororganization 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.
Therefore,
the University
retains the unfettered prerogative
to
determine
what and
how
services,
academic and non-academic,
are
to
be
offered
and
delivered.
Thos.e
services include those
performed
by
student
academic employees. Also,
HEERA
section
3562(q)
(3)
excludes
from
the
scope
of representation:
Admission
requirements for students,
conditions for the
award
of
certificates
and
degrees
to students,
and
the content
and
supervision of courses, curricula,
and. ---resea:r:-ch- 0
-pr-o(J£-amsr"'as bhos,e -terms •·are
intended
by _the
standing orders of the
regents or the directors.
Therefore, any concern by
the University that
degree requirements
and aspects of course work
or research
may become
the subject of
32
collective
bargaining
with
student
academic employees
is
misplaced,
as
these subjects are outside of the
HEERA
scope
of
representation.
Given
these
HEERA
provisions, the University's
assertions
that
collective
bargaining
for student
academic
employees
would
"encroach
on
the
academic
domain
11
or
11
interfere
with
selection
procedures
for
academic
apprentice
appointments
11
are
simply
incorrect.
Additionally,
HEERA
section
3652(q)
(4)
specifically
excludes
from
the
scope
of representation:
Procedures
and
policies to
be used
for the
appointment, promotion,
and
tenure of
members
of
the
academic
senate, the
procedures
to
be
used
for the evaluation of
the
members
of
the
academic
senate,
and
the
procedures
for
processing grievances of
members
of the
academic
senate.
The
exclusive
representative
of
members
of
the
academic
senate
shall
have
the
right to
consult
and be
consulted
on
matters
excluded
from
the
scope
of representation
pursuant
to this
paragraph.
If
the
academic
senate
determines
that
any
matter in
this
paragraph should
be
within the
scope
of representation, or
if
any
matter in
this
paragraph
is
withdrawn from
the
responsibility
of the
academic
senate, thematter
shall
be
within the
scope
of
representation.
And
HEERA
section
3561(b)
states:
The
Legislature recognizes
that joint
decisionmaking
and
consultation
between
administration
and
faculty or
academic
employees
is
the long-accepted
manner
ofgoverning
institutions
of higher learning
and
is
essential to the
performance
of the
.ed1,1ca.:tional--•mii:ssi0:ns -0·f:·-'these
·"1.nsti·tutions,
and
declares that
it
is the
purpose of
thischapter to
both preserve
and encourage
thatprocess. 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
-
33
mechanisms
or
practices,
including
the
Academic
Senate
of
the
University of
California
..•
with
respect
to policies
on
academic
and
professional matters
•••
[t]he
principle
of
peer
review
of
appointment,
promotion,
retention,
and
tenure
for
academicemployees
shall
be
preserved.
Thus,
HEERA
specifically
provides
for the preservation
of
the
academic
senate's role
with
respect
to
academic
policy,
and
the
University
1 s
assertion
that
collective
bargaining
for student
academic employees would
interfere
with
that
role directly
contradicts the
statute.
To
the extent, despite
this
guidance,
that
disputes
arise
over whether
a
subject
is
within
the
scope
of representation,
HEERA
section
3563{b)
provides
that
PERB
shall
have
the
right,
power,
duty
and
responsibility:
To
determine
in
disputed cases
whether
a
particular
item
is
within or
without
the
scope
of representation.
Given
these specific
exclusions
and
safeguards, the
University
1 s
assertions that
HEERA
coverage
for student
academic
employees
will
not
further the pursuit of
academic
excellence
at
the University
because
it
will interfere
with
academic
policies,
selection
processes for
academic
apprentice positions,
and
the
role
of the
academic
senate, are
simply
incorrect.
As
the
Board
stated in
UC
San Diego
at
p.
31:
Coverage by
the
Act can not
and
will not
be
al
Lowed.,. t-o ,,under,cut·,.,bb.ese ~syst:~ms .
and
processes,
which
are singled out for
protection
and
preservation
by HEERA's own
terms.
34
Based on this discussion, and the findings of the ALJ, the
Board concludes that HEERA coverage of the student academic
employees at issue in this case would further the purposes of the
Act.
SUMMARY
The Board has applied the HEERA section 3562(f) test, and
reached the following conclusions:
- The employment of- students as graduate
student instructors, readers, special
readers, tutors, remedial tutors and part-
time learning skills counselors is contingent
on their status as students; ·
- the services provided by students employed
in these positions are related to their
educational objectives;
- the educational objectives of students
employed in these positions are subordinate
to the services they perform;
- coverage under HEERA of students employed
in these positions would further the purposes
of the Act.
Based on these conclusions, the Board finds that students
employed at UCLA as graduate student instructors, readers,
special readers, tutors, remedial tutors and part-time learning
skills counselors are employees under HEERA, and that a unit
consisting of these positions is appropriate for negotiating with
the Regents of the University of California at the Los Angeles
campus, provided an emplqyee organization becomes the exclusive
representative of that unit.
35
ORDER
The following unit is found to be appropriate for meeting
and negotiating at the University of California Los Angeles
campus.
The unit shall Include All:
Graduate Student Instructors
Readers
Special Readers
Tutors
Remedial Tutors
Part-Time Learning Skill Counselors
The unit shall Exclude All:
Graduate student Researchers
Tutor Supervisors
Managerial, Supervisorial and Confidential Employees,
and All Other Employees.
An election will be conducted by the PERB San Francisco
Regional Director in accordance with PERB Regulation 51300 et
seq. unless the University grants voluntary recognition pursuant
to PERB Regulation 51330.
The Board hereby ORDERS that this case be REMANDED to the
San Francisco Regional Director consistent with the attached
Notice of Decision and Notice of Intent to Conduct Election.
Member Dyer joined in this Decision.
Member Johnson's dissent begins on page 37.
36
JOHNSON,
Member,
dissenting:
I
dissent
from
the
majority's
conclusion
that
students
at
the University
of
California,
Los
Angeles
campus
serving
as graduate student
instructors,
readers,
special
readers,
tutors,
remedial
tutors
and
part-time
learning
skills
counselors
are
employees
for
purposes
of
collective
bargaining
under
the
Higher Education
Employer-
Employee
Relations
Act
(HEERA).
I
agree with the
majority's
treatment of
the
constitutional
issue.
I
also
agree
that
the record
establishes that
the
employment
of students
in
the disputed
positions
is
contingent
on
their status
as students,
and
that
the services
provided
by
these
student
employees
are related to
their
educational
objectives.
I
part
company
with
the majority
under
the
third,
two-prong
test
in
HEERA
section
3562(f). In
my
view,
the evidence
clearly
supports
a
determination
under
the
third part
of
the
statutory
test
that
extending
collective
bargaining
to student
employees
in
the disputed positions
would
not
further
the purposes of
HEERA
and,
therefore, the
petition
should
be
dismissed.
My
rationale
for reaching
this
conclusion
is
the
same
as
I
explained
in detail
in
Regents
of the University of California
(1998)
PERB
Decision
No.
1261-H.
Therefore,
in the
interest.of brevity
I
refer
the
parties to
my
dissent in that
case.
37
PUBLIC
EMPLOYMENT
RELATIONS
BOARD
NOTICE
OF
DECISION
AND
NOTICE
OF
INTENT
TO CONDUCT
ELECTION
R
CASE: PERB
Decision
No.
1301-H
(Case
No.
SF-RR-813-H)
EMPLOYER:
Regents
of the
University of California
DESCRIPTION
OF
UNIT:
The
unit shall
Include All:
Graduate
student
Instructors
Readers
Special
Readers
Tutors
Remedial
TutorsPart-Time Learning
Skill
counselors
The
unit shall
Exclude
All:
Graduate
student
Researchers
Tutor SupervisorsManagerial,
Supervisorial
and
Confidential
Employees,
and
All
Other
Employees.
ELECTION: A
representation election will
be conducted
in the
unit
described
above
provided
one
or
more
employee
organizations
qualifies to
appear
on
the ballot.
However,
pursuant
to
PERB
Regulation 51330,
if
only
one
organization
qualifies to
appear
on
the
ballot
arid
the organization
has demonstrated proof
of majority support
in the unit
found
appropriate,
the
Regents of
the University of California
may
grant voluntary recognition
and
notify the
Board
to
cancel the election.
INTERVENTION
TO
APPEAR
ON
BALLOT:
,J?u.r:;;;u.ant
•.
to,,PERB•,Regul-ation ·~id310, any· employee
organization wishing
to
appear
on
the ballot in
the representation election
conducted in the unit
listed
on
this
Notice must
file
an
intervention toappear on
the ballot with the
PERB
San Francisco
Regional Office within 15 workdays from
the date
of this Notice. The intervention must be on a
form provided by PERB and must be accompanied by
proof of support of at least 10 percent of the
employees in the unit. Proof of support is
defined in PERB Regulation 32700.
The last day to file an intervention to appear on
the ballot in the unit described above is:
January 5, 19990
This Notice of Decision is provided pursuant to PERB
Regulation 51235.
2
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
R
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
STUDENT ASSOCIATION OF GRADUATE
EMPLOYEES, U.A.W., UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, AFL-CIO,
Petitioner.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
__________________ )
Representation
Case No. SF-R-813-H
PROPOSED DECISION
(9/13/96)
Appearances: Proskauer, Rose, Goetz and Mendelsohn, by Walter
Cochran-Bond, Christopher M. Brock, Elizabeth J. Kruger and Maria
E. Greckie, and Corbett and Kane by Sharon J. Grodin and Peter M.
Chester, and Office of the General Counsel by James N. Odell,
Attorneys, for the Regents of the University of California;
Schwartz, Steinsapir, Norman and Summers by Margo A. Feinberg,
Brenda Sutton and Stuart Libicki, Attorneys, for Student
Association of Graduate Employees, U.A.W., United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO.
Before JAMES W. TAMM, Administrative Law Judge.
TABLE
OF
CONTENTS
P
INTRO
DUCT
I
ON
1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PROCEDURAL
HI
STORY
1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
JURISDICTION
. 5
.....................
•
.................
·.....
ISSUES 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ·
FINDINGS
OF
FACT 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Background
Regarding
UC
6
LA.........................
Common
Factors
6
..........................
·.
. . . . . . . . .
Graduate
Student Researchers
7
Graduate Student
Instructors
11
Special
Readers
19
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Remedial
Tutors/Part
Time
Learning
Skills
Counselor
20
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Readers
2 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tutors
26
........................................
·....
Educational Objectives of Student
Employees
27
.......
Mentor
Issues
31
Part-Time and
Intermittent
Employee
Issues
34
. . ...
..
. . .
Grievance
Issues
35
Information
Flow 49
. . . . . . . " . . . . . . . . . . . . .. . . . . . " . .
":
. . . .
The
Rhetoric of Conflict
50
. . . . . .
........
..
..... .....
Other University
Academic
Units
52 . . . .
.......
..
.
.....
Credibility
Findings
56
...
............... ............
i
DISCUSSION 63
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indicia
of
Student
vs.
Employee
Status
63
........
.. ..
UC
Berkeley Precedent
63
...................
;.
........
Analysis
of
Subsection
(f)
65
First
Test:
Is
Employment
Contingent
Upon
Student
Status?
66
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Second
Test:
Are
Services Related
to
Educational Objectives?
68
..
. . . . . . . . .
..
. . . . . . . . . . . . . .
Third Test:
Are
Educational ObjectivesSubordinate
to
Services
(Prong
One)
and
Would
Coverage Under
the
Act
Further the
Purposes
of the
Act (Prong
Two)? 68
.
..
.......... ......
Prong
One:
Are
Educational ObjectivesSubordinate
to
Services?
76
...
. .
..
........... ........
GSRs
76
............................
·.
. . . . . . . . . . . .
GSis,
Special
Readers, Readers,
RT
/LS
Cs
and
Tutors
79
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Prong
Two:
Will
Coverage
Further the
Purposes
of the
Act?
92
..... .....
...
. .
............
...
GSRs
93
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
GSis,
Special
Readers, Readers,
RT/LSCs,
and
Tutors
94
. . . . . . . . . . . . . . . . . . . . . . . . . .
Freeflow of Information
96
..
. . . . . . . . . . . . .
..
Mentor
Issues
98
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Work
Stoppages
106
. . . . . . . . . . .
..
.............
Academic
vs.
Economic
Issues
1.09 . . . . . . . . . . . .
~·-·
..
E.otenti.al.~Damage
..
t,o,
tbe~
..
statu-re
of the University
113
. . . . . . . . . . . . . . . . . . . . . . .
ii
Page
Conflicts
Between
Services
and
Educat
Objectives
113
.............
.....
Part-Time/Intermittent
Employee
Issues
116
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Limited
Resources
of
the
Universit
118
y.....
Union
Rhetoric
119
..........................
·
Erosion
Status
Quo
120
..................
.
Coverage
Will
Further the
Purposes
of
the
Act
121
. ,'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TUTOR
SUPERVISORS
122
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Finding
of Facts
122
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
scussion
and
Conclus
124
ion..........................
CONCLUSION
127
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PROPOSED
ORDER
128
APPEAL PROCESS
128
iii
٠٠.
INTRODUCTION
This
decision
is
the
second
issued
a
series
of
representation
cases
which have been
consolidated
to
avoid
a
duplication
of records.
The
first
decision
(Regents
of the
University of
California
(10/20/95)
SF-R-805-H
(UCSD),
involved
coverage under
the
Higher Education
Employer-Employee
Relations
Act
1 (HEERA
or
Act)
for
certain
student
employees
at
the University
of
California,
San Diego
campus
(UCSD).
This
decision
determines
HEERA
coverage
for
student
employees
in
the
classi
cations of graduate
student
instructor
(GSI),
graduate
student researcher
(GSR),
reader,
special reader,
tutor
and
remedial
tutor/part
time
learning
skills
Counselor
(RT/LSC)
at
the University of
California,
Los
Angeles
campus
(UCLA).
It
also
determines the supervisory
status
of
tutor
supervisors.
In
this
decision,
I
first
make
factual findings
about
the
positions
and
then apply
HEERA
section 3562(f).
I
conclude
that
GSRs
are
not
employees
as defined
by
HEERA,
and
that
all
other
classifications in dispute are
employees
as defined
by
HEERA. I
also find that tutor
supervisors are supervisors as defined
by
the
Act and
therefore,
should be excluded
from
the
proposed
bargaining
unit.
PROCEDURAL HISTORY
On
March 31, 1994,
the Student
Assoc
ion of Graduate
Employees, U.A.W.,
United Automobile, Aerospace and
Agricultural
Implement Workers
of
America,
AFL-CIO
(Petitioner or
SAGE)
filed
1
is codified at
Government Code
section
3560,
et seq.
PERB
regulations are codified at California
Code
of Regulations,
Title 8, section 31001,
et seq.
this
request
for
recognition
seeking
a
unit
readers,
tutors,
acting
instructors,
community
teaching fellows, nursery
school
assistants,·
teaching
assistants,
associates
in
------
graduate
student, teaching fellows,
and
research
assistants
employed
at
UCLA.
On May
6, 1994,
the
San
F~ancisco Regional
Director
of the.
Public
Employment
Relations
Board
(PERB
or
Board)
determined
that
the
Petitioner
had submitted proof of support
sufficient
to
meet
the
requirements
of
HEERA.
On May
23, 1994,
the
Regents
of the University California
(UC
or
University)
filed
its
response
to the
Petitioner
1 s
request
for recognition
asserting
it
was
inappropriate
because
it
included student
employees
who
are
not
employees
·as
defined
by
HEERA.
The
University also
responded
that to the extent the
petition
included non-student
employees,
those
employees
should
be
placed
in
a
separate
systemwide
unit or accreted to the
existing
systemwide Non-Senate
Academic
Unit (Unit
18)
. 2 On
June
27, 1994,
the
Petitioner filed
a
request for
a
Board
investigation
pursuant
to
PERB
Regulation
51090.
3
A
settlement conference
was
held
August 9, 1994,
but the
matter
was
not resolved.
2
The
University offered
no
evidence or
argument
regarding
the appropriateness of non-student employees being accre.ted
intoUnit 18.
3PERB
regulations are codified at California
Code
of
Regulations,
title
8,
section
31001
et seq.
2
On
September 12,
1994,
Petitioner
filed
an
amended
request
for
recognition,
which added
the
positions
of
special
readers
and
remedial
tutors.
On
September 19, 1994,
regional
director
determined
that
the proof of support submitted with the
original
petition
remained
sufficient
to
cover
the
amendment. The
University
filed
a
new
response
to
the
amended
request
for
recognition
and
denied
for the
same
reasons
it
denied
the
original
petition.
On
September 19, 1994,
Pet~tioner
filed
a
motion
to
consolidate the hearing
this
case with hearings
for related,
but not
identical,
requests for recognition
at
UCSD
and
the
University's
campuses
at
Davis and
Santa Barbara.
4
At
a
prehearing
conference
on
October
4, 1994,
the
parties
made
oral
arguments
regarding
the
Petitioner's
motion
to consolidate.
The
parties briefed
the issue
and on
October
28, 1994,
I
granted the
motion
part,
consolidating the records of the four requests
for recognition.
This assured
that
much
the
parties
1
cases
offered at
UCSD
need
not
be
duplicated in
the other hearings.
Petitioner's
request for
a
single
formal
hearing for
all
four
cases
was
denied.
On
December 22, 1994,
I
issued
an
order to
show
cause
upon
Petitioner
as to
why
GSis and
GSRs
should not
be
dismissed
from
the
petition
based
upon
AGSE
District
65
UAW,
AFL-CIO
v.
PERB/Regents
of the University of California
(1992)
6
Cal.App.4th
4
The motion did not seek consolidation of the petitionsthemselves. At
the time the motion was
filed, the only petition
set for formal hearing
was
UCSD
(Case No. SF-R-805-H).
3
1133
[8
Cal.Rptr.2d
275]
rev.
den.
August 13,
1992
(AGSE}
. 5
The
parties
briefed
the issue
and
on
March
13,
1995,
I
ruled
that
GSis and
GSRs
would
not
be
dismissed
from
the
petition.
and
that
the
parties
would
be
given
the opportunity
to
fully
litigate
the
positions
during
the representation
hearing.
6
The
University
filed
an
interlocutory
appeal,
however,
on
July
17,
1995
,. PERE.
irmed
the
ruling
on
the order
to
show
cause
(Regents
of the
University of
California
(1995)
PERB
Order
No.
AD-269-H.)
On
October
16,
1995,
after
receiving additional
information
from
the University
about
t
le
code
usage,
Petitioner
amended
the request
deleting certain
unused
tutor
title
codes,
acting
instructors~
community
teaching fellows, nursery
school
assistants
and
some
unused
GSR
title
codes.
The amendment
also
added
tutors in other
various
tit
codes
and
part-time learning
skills
counselors.
Another
title
code
amendment was
filed
on
October 30, 1995.
Several prehearing conferences
were
conducted
and
39
days
of
formal
hearing
were
held
between October 18,
1995
and
January
10,
1996.
Briefs
were
filed
and
the case
was
submitted
for decision
on
July
16, 1996.
5
The
Board's decision in the
AGSE
case
is
Regents
of
the
..
.University
..
of
..
.Cali£Gr.n.ia
e-(,1.9
.
.a9) .. PERB
•Beeisicm
~No. - 73 0-H(AGSE Bd Dec . } . .
6
The
ruling
was
based upon two
factors.
The
first
was
thatthe previous case only dealt with the
UC
Berkeley campus. The
second was
that circumstances
m~y
have changed since the
UC
Berkeley record had been developed.
4
JURISDICTION
The
University
is
an employer
within the
meaning
of
section
3562(h)
of
the
Act.
The
Petitioner
is
an employee
organization
within
the
meaning
section
3562(g)
of the
Act.
ISSUES
HEERA
section
3562(f)
(subsection (f)) provides:
11
Employee
11
or
"higher education
employee
11
means
any employee
of the
Regents
of the
University 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.
Thus,
the issues regarding
employee
status to
be
decided
this
dispute are:
{1)
Under
the
first test, is
employment
in the disputed
titles
contingent
upon
student status?
{2)
Under
the
second
test,
are the services
provided
by
the
student
employees
in
question unrelated to
their
educatioDal
objectives?
(3)
Under
the
third,
·two
prong
test,
are those educational
objectives subordinate to the services provided
(Prong One), and
does.
coverage under
..
HEER.A
..
.tu:r::tJ:J.e;r-
..
,t,he- ·pUFJ?K)Ses ·
of the
Act
(
Prong
Two)?
An
issue independent of
employee
status is
whether
tutor
supervisors are supervisors pursuant to
HEERA
section 3580.3.
5
FINDINGS
OF FACT
Background
Regarding
UCLA
The
University
is
a
public,
state
supported,
higher
education
institution
offering
undergraduate
and
graduate
instruction
and.professional
education.
The
University
is.
required
to
provide undergraduate education
to
the
top
one-eighth
of
California's
high school
graduates.
It
has
exclusive
jurisdiction
in California public higher education over
instruction
the professions
of
law,
medicine,
dentistry
and
veterinary
medicine.
The
University also
has
sole authority. to
award
doctoral
degrees
in
all
fields, either
alone
or
jointly
with the California State
University
system.
The
University
has
nine
campuses.
This
decision
concerns
student
employees on
the
UCLA
campus.
Common
Factors
While
I make
separate findings for
each
of the
.disputed
titles,
there are
some common
facts
among
them.
In
addition to
a
salary, student
employees
in
the disputed
titles
receive
two
significant benefits. First,
they receive graduate student
health insurance
(GSHIP).
Second,
they are
eligible
for
registration
and
educational fee remissions.
Student
employees
in the disputed positions are required to
perform
all
the
same
functions,
complete
1
the
paperwork and
satisfy all
coursi requirements as
all
other students.
They
also
f 1
out
employment forms,
tax
forms, timesheets,
etc., like
other employees.
6
Graduate
Student Researchers
GSRs
generally are hired to
perform
research
under
the
direction
of
a
faculty
member.
GSRs
are
employed
in
two
types of
positions.
One
is
on
an
hourly
basis,
typically
working
a
limited
number
of
hours
for
an
individual
faculty
member
who
requires research for
a
book
or other special project
which
the.·,:
professor
is
working on.
The
GSRs
in
these
positions are usually
students in the
field
or discipline
within
which
they
are
employed.
The work
they
perform,
however,
is
not
tied
to
the
student's
own
dissertation
or
course
work.
Faculty
will often
utilize
GSRs
to
do
hourly research
such
as
computer
work,
library
research, or data analysis.
Some
professors
with
substantial
grants
may
simply
hire
GSRs
as
a
means
of funneling
financial
support
to
a
student,
asking
for very
little
service in return.
Some
hourly
GSRs,
even though
not
working
directly
within
their
dissertation field,
have been
able
to publish
articles
based
upon
hourly
GSR
work, and have
learned valuable
skills
which
may
be
helpful to
them
later their
own
research.
Hourly
GSRs
constitute
a
very small perc~ntage of the
total
GSR
funding.
Funds
for
such
employment
usually
come
from
faculty
senate grants given
to faculty
members
for the
purpose funding
their
own
research projects.
The
vast majority
GSR
funds
are spent
on
the second type
of
GSR
position, half-time positions attached to certain research
grants.
Most
of these
GSRs
are in the sciences
and engineering
7
fields.
There
are
four
levels
of
compensation
for
GSRs
depending
upon
their
experience
and
completion
of
academic
milestones.
The
duties
performed
by
GSRs
in
half-time positions
vary
greatly,
depending
upon
the
field
of study
and
the
experience
of
the
GSR. A
newly
admitted graduate
student
might
first
be
assigned
to
perform
research
of
a
very.basic nature.
This has.
two
primary purposes.
One
purpose
is
to
assist
faculty
members,
post doctoral researchers
(post
docs)
or other
more
advanced
students
with
research
grunt
work.
A
second and
more
important
reason,
however,
is
to
provide
the student
with
an
opportunity
to
learn basic laboratory research
skills.
Acquiring
these
skills
is
essential
later
success as
a
graduate
student,
and
is
done
for the.education of the
GSR
more
than
for the
smooth
operation
of
the.lab.
According
to
one
professor,
new GSRs
"break
more
things than they
fix."
Once
GSRs
have
picked
up
some
basic
skills
and have
a
better
idea of
their field
of
interest,
a
mutual
courting process occurs
by which
faculty
and
students
select
each
other.
Students seek
a
dissertation chair
and committee
members,
while
faculty
members
seek
bright, energetic graduate students
whose
research
interests
are
a
match
for the research
conducted
their laboratories.
When
the process
works
well, the faculty
member
becomes
not
only
a
dissertation chair, but
a
mentor
to the student,
assuming
a
certain responsibility for the success of that student.
Along
with the acceptance of
a
student into the faculty
member's
lab
8
comes
a
perceived,
if
not
official,
obligation to
make
efforts
to
secure
financial
support
for
the
student.
While
some
students bring
their
own
funding
source with
them
(e.g.,
National
Science
Foundation
grants),
most
GSRs
are
funded
through
grants
obtained
by
the
faculty.
Many
grants
.are
obtained
by
faculty for
the sole
purpose
of providing
training
funds
for
GSRs.
Several
faculty
members
testified
that
obtaining grants to
provide
for
GSR
funding
was
one
of
the
most
time
consuming
obligations inherent
in
accepting graduate
students
into
their
labs.
Many
agencies provide
grants
with
sufficient
flexibility
to
divert
funds
into
the
projects of
graduate
students
which
are
only
loosely
related to
the
original line
of inquiry.
Most
grants include
some
portion
of
funding
for the
principal
investigator
as well as for the graduate student.
Approximately
40
percent of
all
research grants
go
directly to the University
as overhead expenses.
Typically
all
equipment
purchased with
grant
funds
also
is
retained
as University property
at
the
conclusion of
any
project.
As
part
of
their
role
as mentors,
faculty will often
co
author scholarly research papers,
assist
and/or encourage
GSRs
attendance
and
presentation at
conferences
and meet
regularly
with students to supervise
their
research
and
dissertation
efforts.
The
relationship
between
GSRs
and
their faculty
mentors
typically constitute
a
stronger
bond and
are
more
time consuming
9
than
relationships
between
other
student
academic employees
such
as
GSis
and
their
supervising
faculty
members.
Most
GSRs
have
either jointly
published
research
papers with
their
faculty
supervisor
or
expressed
a
des
to
do
so
at
some
point
during
their
educational
.program.
These.papers
are.usually
based
upon
research paid
.for
at least
part
by
the
GSR
funding
...
These
papers not only help
build the
GSR's
curriculum
vitae,
but
sometimes
may
be reworked
into
their
dissertation.
To
be
appointed as
a GSR,
an
individual
must be an
admitted
and
enrolled
UCLA
graduate
student.
While
there
is
a
great
deal
of overlap of
job
functions
among
GSRs
and
other university
positions,
such
as
post
docs
or
a
variety
of
staff
research
assistants,
these other individuals are placed
in
distinctly
different
job
classes, typically
with
different
pay
and
responsibilities.
While
GSRs
typically
serve
in
50
percent
appointments,
this
time
limitation
has
little
practical
meaning
in
most
cases.
Unlike
all
other disputed
titles,
in
most
cases
it
is virtually
impossible
to distinguish
between
the
time
a
student
performing paid
work
as
a GSR
from
the
time spent
on
non-paid
status
performing the
student's
own
dissertation research.
This
is
so simply because
most
GSRs
are essentially paid
by
the
University to
perform
their
own
research
upon which
they will
base
their dissertation.
10
Graduate
Student
Instructors
In
this
decision,
the
term
GSI
refers
to
teaching
as~istants,
teaching
associates
and
teaching fellows.
Placement
into
these three
titles
depends
upon
the
individual's
teaching
experience
·and
completion of
various educational milestones
in•
the
student's
degree
program.
Salaries also increase
with
experience
through·several
levels.
The
salary
schedule has been
determined
by
the University
in
an
effort
to
remain
compet
ive
with
other
major
universities.
An
uncompetitive
salary scale
would
result
in
the
most
promising
graduate
students
seeking
their
degrees
at
other
universities.
Most
GSI
positions
are
50
percent
appointments, although
some
are
at
25
percent.
With
50
percent
appointments,
students
may
still
be
considered
full-time
students for
funding purposes
from
the
state.
A
50
percent appointment.provides
that
GSis
should
be
able
to
perform
their
duties within
20
hours
per
week,
averaged over the course of the
appointment. Because workloads
vary
a
great deal
from week
to
week
depending
upon
factors
such
as
exam
schedules
or
major assignments, the
workload
may
often
greatly
exceed
20
hours
one
week
and be
substantially
below
the
next.
Although
several witnesses
testified that
it
was
impossible
to
do
their
job
in
a
conscientious
manner
within the
20
hour average per
week,
a
greater
number
testified that
it
was
usually sufficient.
Newer,
less
experienced GSis,
or those
teaching in unfamiliar subject areas
would
naturally
need
to put
in
more time than an experienced
GSI
teaching the
same
course for
11
the
second,
third
or
fourth
time.
7 Some
individuals apparently
were
simply
given
more work
than could
be
accomplished
within the
20-hour
average,
however,
this
seems
to
be
more
the exception
than
the
rule.
The
duties
of
GSis
1
into
two
major
categories:
.
teaching
courses
and
leading discussion
or lab sections.
A
great
number
of the
GSis
teaching courses
are within
language
departments
or
English composition.
For
example,
almost
1
Spanish
I
through
V
courses
are
taught
by GSis.
Thus,
it
not only
possible,
but
extremely
likely that
an
undergraduate
student
could
be
taught
five
days
a
week,
one
hour
per
day
through
this entire
Spanish
series
and
not
have
a
single class
meeting
with
a
regular faculty,
member.
Sixty percent of
English
III
(writing,
composition,
rhetoric
and language)
courses are taught
by GSis.
Ninety
percent of English
IV
(critical
reading
and
writing}
are
taught
by GSis.
In classes
taught
by
a
GSI,
there
is
no
distinction
from
the
undergraduate
student's
point of
view between
the
GSI
and
a
regular faculty
member. The
course
catalog
does
not
distinguish
them. Course
credit
and
tuition
are also the
same.
GSis
teaching
a
course are responsible for
each
day's
lessons, designing
and
grading
homework
and
quizzes
and
holding
office
hours.
If
mid-term and
final
exams
are part
of the
7
In
a 1993
survey conducted by
the University,
41
percent of
those responding
stated that they had,
at
once, served as
a
GSI
for
a
course that required an average work week
of
more
than
20
hours. That number dropped to
23
percent
when
asked about
courses taught after they had become a more
experienced GSI.
12
course, they
are
sometimes
jointly
drafted
with
other
GSis
and/or
the
departmental
supervisor
in
an
fort
to
maintain
consistency
among
the various sections
of the course.
In theory,
GSis
teaching
a
course
are
supervised
and
observed
by
a
faculty
member
who
sets
the
curriculum,
writes
the•
syllabus
and
has
final responsibility
for
grading. In
practice,
however, GSis
teaching
a
course
do
not appear
to
receive
much
supervision
or
observation.
A
syllabus
is
often
provided
to
GSis
by
the
department
to
assist
in
some
of
the
course planning.
However,
all
of the actual
teaching
and
grading of
undergraduate
students
is
done by
the
GSI.
A
very
limited
number
of
GSis
also
have
the opportunity
to
teach
a
course through
the
Collegium program.
To
be
igible,
a
GSI
must
have
formally
advanced
to
do.ctoral candidacy
and had
at
least
two
years of
GSI
experience,
or
approved
teaching
experience
at
a
comparable
institution.
Collegium
courses are
designed
by
the
GSI
and
are
typically related to the GSI's
own
dissertation
research.
Collegium GSis
are selected
through
a
highly competitive process
and
it
is
c9nsidered
an honor
to
be
given the opportunity to teach within the
program.
The
Collegium provides for
a
weekly seminar
prior to the
actual teaching quarter, within
which
the
GSI
designs the course,
develops
a
syllabus, selects instructional materials
and
determines pedagogical approaches. GSis
receive course
credit
for this
seminar and do
not receive pay.
Once
they begin
13
teaching
their
courses,
however,
they
receive
pay
and
are
responsible
for
literally
every aspect' of the course.
The
second
general category of
GSI
employees
are those
serving as
instructors
for
discussion or lab
sections attached to
large
undergraduate
lecture
.
courses.
A
lecture
course
might, ;for
example, have
250
students
and
10
sections
scheduled with
approximately
25
students per section.
Section
or lab
meetings
are
typically
scheduled
once
or
twice
per
week
with
GSis
explaining and/or
augmenting
materials
introduced during
larger
lecture classes
conducted
by
faculty.
GSis
are required
to
hold
regular
office
hours
and
will typically also
hold review
sessions·
prior
to
midterm and
final
exams;-
GS
Is
assign
and
grade
homework.,
assignments
and
projects
which
are usually
based
upon
general
guidelines
determined
by
the
faculty
member
teaching the course.
Supervision of section
GSis
varies
a
great deal
depending
upon
the experience of the
GSI
and
the
inclination
of the faculty
member.
Some
faculty
provide
GSis
with
an
opportunity to present
a
lecture
to
the large class
undergraduate
students
and
other
faculty
may
choose
to
observe
GSis
leading
a
lab or discussion
section.
GSis
can
learn helpful teaching
skills
through
discussions with the faculty supervisors. Issues
such as
teaching
styles, presentation of course material
and
grading
philosophy are
sometimes
discussed during faculty-GSI meetings.
Although
some
faculty take
a
great interest in
and meet
regularly with GSis,
offering pedagogical advice and support,
this is
not, however,
the
norm.
Typically,
GSis meet with the
14
faculty
member
at
the
start
of the
quarter to
discuss
strategies
and
expectations.
They
may
also
meet
prior
to
major
assignments
or
exams.
Even
in
situations
where
regular
meetings
are
held,
they
appear
to
be
primarily for
the
purpose
'ensuring the
quality
of the education being
delivered to
undergraduate
students
rather
than
a
method
teaching
pedagogy.
The
level
of supervision
provided
by
faculty to
GSis
does
not,
in
most
cases,
rise
to
the
level
of
a
mentor/student
relationship.
This
is
primarily
because
the
most
significant
graduate
student-faculty relationship
is
between
students
and
chairs
dissertation
committees.
Faculty witnesses
regularly
refer
to
students for
whom
they were.the
dissertation chair
as
"my
student.
11
While
faculty
sometimes
serve
in
both the
roles
of
supervisor of the
GSI
as well as
that
GSis
dissertation
chair,
it
is
more
·often not
the case.
The
ationship
between GSis and
their
faculty supervisors.
is
underscored
by
the contrast
between GSis and
GSRs. GSRs
are
supervised primarily,
if
not
exclusively,
by
the
same
person
overseeing
their dissertation
research. In
most
cases
it
is
hard
to
tell
when
GSRs
are being supervised in
their role
as
GSR,
as
opposed
to their role as students
working on
their dissertations.
It is typically
very easy
to
make a
distinction
between
the
teaching
work
of
a GSI
and
that individual
1 s own
educational
program
leading to their
degree.
It
also typically
easy to
determine whether GSis
are being supervised in their role as
GSis
or in their
own
research.
15
Prior to
the
fall
quarter
each
year, the Office
Instructional
Development
holds
a
one-day
campus-wide
orientation
session for
new
GSis.
GSis
may
attend
a
variety
of
presentations
on
issues
such
as
office
hours,
motivating
students,
math
anxiety,
sexual
harassment, meeting
the
first
class, diversity
within the
classroom,
etc.
Most
GSis
are
also
required
to
take
a
quarter-long
"495
course"
prior
to
being
employed
as
a
GSI.
The
course
varies
depending
upon
the
type of teaching the
GSI
will
be
doing. For
example,
a
language department
1 s
495
course
might
cover
issues
such
as
second language
acquisition,
whereas
a
lab section
495
course
might
cover
issues
such
as
lab safety.
GSis
receive
credit
but
no
pay
for
the
495
course. In addition,
some
individual
departments sponsor
voluntary
workshops
dealing with
the
particular intricacies
of
their
department.
These workshops
are also
open
to recently hired
lecturers.
GSI's
also receive
credit for taking
a
11
375
course" teaching
practicum while they are
employed.
No
instruction
is
provided as
part of receiving
this credit.
The 375
course counts only toward
status
as
a
full-time student
and does
not
satisfy
degree
requirements.
It is
very rare for
departments
to require service
as
a GSI
as
part
of
their
educational
program.
The
staffing ratio
of
all
GSI
positions, ·except those
teaching in the
Collegium,
is
determined primarily
by
the needs
of the department
to staff
undergraduate courses and
the
amount
16
of
available
funds.
8
As
such,
GSI
staffing
is
enrollment
driven,
based
upon
the
number
of
undergraduates
to
be
educated,
rather
than
the
number
of graduate
students
seeking
teaching experience
or
pay.
Funding
for
GSI
pos
ions
comes
from
state
revenues
that
are
allocated to
the
campus
by
the Office of the President
and
then
to
departments
by
the chancellor
and
the
academic
deans.
These
funds
come
from
the
same
source
and
are interchangeable
wi
funds
used
for other
instructional
employees
such
as
lecturers.
Selection
methods
vary
among
departments.
Some
departments
with
more
graduate students
than
open
positions
use
a
highly
competitive
complex
algorithm
to select
GSis
based
upon
many
factors
including
academic
achievement. Other departments
which
have
greater
undergraduate
needs
and
fewer
graduate
students
advertise
throughout
related fields just to
secure
enough GSis
to
fill
their
open
positions.
All
selection
processes are merit
based,
however,
as
opposed
to
need
based. Therefore, the
financial
need
of the
GSI
is
not
a
selection factor.
The
University
does have
a
variety of
financ aid services available to
graduate students,
some
of
which
may
include
employment,
but not
in the
titles
disputed
in
this
hearing.
8
Those
participating in the Collegium are selected
on
a
compet
ive basis.
This
last
year there
were
only eleven
graduate students participating in the Collegium of UniversityTeaching Fellows
(CUTF).
Given
the limited
number
of
participants in the Collegium,
their experience
is
only
marginally helpful in deciding the
GSI
issue.
17
Employment
as
a
Gsr·is
limited to
12
quarters
unless
an
exception
is
made
based
upon
the educational
advantage
to
the
GSI.
The
University
specifically
prohibits
granting
exceptions
to
the 12-quarter
rule
based simply
upon
the
need
to
staff
courses.
When
teaching
either
a
course
or section
meeting,
the
GSis
play
a
vital
role in
the
accomplishment
of
University's
teaching mission.
The
evidence
quite
clear that
without
the
services currently
provided
by GSis,
the University
would
not
be
able
to
accommodate
undergraduate
programs.
Professors
would
not
be
able
to
teach large lecture
courses.
Undergraduates
would
receive very
little
personal
attention.
Writing assignments
would
have
to
be
curtailed
and
tests
would
need
to
be
restructured
utilizing easily
graded
questions
such as
multiple
choice
rather
than essay
exams.
In
short, the
University's
teaching mission
would
suf irreparable
harm
without
the
services currently
provided
by GSis.
The
University offered
evidence
that
it
could provide those
same
services in
an
economically
feasible
manner
utilizing
non
students,
without doing
damage
to the educational
program.
The
University
would
simply
hire
non
students
such as post
docs
or
local part-time
community
college instructors,
high school
teachers or
unemployed
aerospace engineers to
fill
the
huge
void
if
students
were not
utilized
as GSis.
To
be appointed as
a GSI, an
individual
must be admitted and
enrolled as
a UCLA
graduate student.
While
there is
a
great deal
18
of overlap of job
functions
between
some
GSis
and
post
docs,
lecturers,
or other regular
UCLA
faculty,
these
other
non
students are placed
in
distinctly
different
job
classes
typically
with
different
pay
and
different
responsibil
ies.
The.percentage
of graduate
students
employed as. GSis
varies.
greatly
among
departments,
depending
upon
several
factors,
such
as the
amount
of
alternative
fellowship
and
GSR
funding
available,
and
the
number
of
undergraduate
students
served
by
bhat department.
For example,
in
language,
biochemistry
and
chemistry, departments with
large
numbers
of
undergraduate
students
to
educate,
100
percent graduate
students receiving
their
degree
this
past
year
were employed
as
GSis
at least
once
during
the
graduate
programs.
At
the other
extreme
are
departments without
large
undergraduate
programs and
with
a
significant
amount
of
GSR
funding. For
example,·
geophysics
and
space
physics
had
only
13
percent of graduate students serving as
GSis
and
nuclear engineering
had
only
20
percent.
Special
Readers
The
special reader
class
is
used only
on
the
UCLA
campus.
It
was
approved
in the
early
1980s
in
response
to
a
need foF
assistance
which
was more
advanced
than readers or
GSis.
The
expectation
was
that
providing
a
classification
with
a
more
advanced
qualification
and pay
scale
would
stop use of
GSis
and
readers
advanced courses.
Special readers usually function
much
the
same
as
GSis
except they
work
in upper division or graduate courses.
They
19
teach
sections,
hold
office
hours,
and
assign
and
grade
homework,
exams
and
projects.
Some
special
readers
serve
in
unique
appointments.
For
examp
,
one
special
reader
in
the
advanced
directing
program
within the film
and
sion
department
supervised film
projects.
In
that
role,
she assigned,.crew
members
and
organized,
the scheduling of film shoots
throughout
the year.
She
not
only
scheduled use
of
equipment,
but
also
organized
how
insurance
would
be
obtained
for
the students.
Appointments
as
special readers are
made
by
the
faculty
member
the
department has
allocated
a
position to
a
course.
Appointments.are
made
on
an.hourly
bas.is and
pay
is
equal
to or
greater
than the
pay
received
by
typical
GSis.
Non-students
have
never been
appointed as
special readers.
Remedial
Tutors/Part-Time Learning
Skills
Counselors
Prior to
the
summer
of
1995,
individuals
staffing
jobs
were
hired into
the
remedial
tutor class.
This
created
a
problem
because
the
program wanted
to hire
non-students
into these
positions
and
the remedial
tutor class
was
reserved for students.
In response, the
UCLA
personnel
office
suggested they
use
the
learning
skills
counselor
title
code.
From
then
on
all
new
hires,
both students
and
non-students,
were
hired as learning
skills
counselors.
A
few
individuals
who
had
already
been
hired
remained
in the remedial
tutor
title.
Since individuals in both
titles
are currently performing the
same
duties,
I
will re to
20
them
as
remedial
tutors/part
time
learning
skills
counselors
(RT/LSC).
RT/LSCs
work
for
the Office of
Student
Support
Services
whose
purpose
is
twofold.
One
is
to
provide
academic
and
psychological personal
support
£or
medical students~ The.second
is
for
outreach
and
recruitment of under-represented
minority.
students
into
medical
school.
RT/LSCs
are
used
in
two
major
areas.
The
first
is
during
the
academic
year
where
they are
used
to
conduct review
sessions,
do
one-on-one
tutoring
and
work
in
small groups
with
first
year
medical
students.
The
RT/LSCs
used
in
this
manner have
in
the
past
been
advanced
UCLA
medical
students.
The
RT/LSC's
subject
matter
knowledge,
ability
to
do
the
job
and
availability
are the
primary
criteria
for selection,
according
to Patricia Pratt,
Director of
Student Support
Services
for the
School
of
Medicine.
One
witness
who
had been
involved
in
recruitment of
RT/LSCs
stated that
an
interest
teaching
was
something
they
looked
for
in
candidates. Students
who
sought
the job as
a
method
of
refreshing
their
knowledge
for
board
exams
tended
to
be
rejected.
The
second
area of
employment
for
RT/LSCs
is
during the
summer
session,
which has
different
programs.
One
is
a
three
week
pre-entry
program where
RT/LSCs
run ·small group study
sessions teaching
pre-med
students
how
to study the
medical
curriculum. Another
is
an eight-week program
called
UCLA
Prep.
It is
a
pre-medical school enrichment program
to teach
undergraduate students subjects
which are prerequisites to
21
medical
school.
The
program
is
funded by
the
U.S.
Department
of
Health
and
Human
Services
and
federal grants
targeting
both
outreach
and
retention
efforts.
The
summer
program
is
not
limited
to
UCLA
pre-med
undergraduate
students,
but
rather
is
open
to
students
throughout
the
United
States.
RT/LSCs
are hired
both
instructor
and
GSI
roles,
teaching
learning
skills,
communication
skills,
personal
development and
career
development.
With
the
assistance the learning
skills
director,
they
set
the
curriculum,
develop
a
syllabus,
develop,
administer
and
grade assi$nments
and
examinations
and
evaluate
the
student's
performance.
Recruitment
for
the
RT/LSC
class
is
so
broader than
UCLA.
Job announcements
are
distributed
throughout
the
Los
Ange
area, although
UCLA
medical
students are
given
a
preference.
Non
students hired typically
have
a
master's
degree or doctorates
in
the subject area
and
often
have
teaching experience
at either
the
community
college or university level.
RT/LSCs who
are
medical
students benefit
from
occupying
this
pos
ion
by
increasing
their
subject matter
knowledge, and
developing
their
teaching
skills,
as well as
benefitting
them
economically.
Readers
The
reader position at
UCLA
is virtually identical to the
reader position at
UCSD.
Readers
assist
the University's
teaching mission by reading and grading
homework
assignments,
quizzes, midterm and
final
exams, and papers. Readers have
some
22
regular
ongoing
responsibilities
throughout
the
quarter,
but
more
commonly,
their
duties
involve sporadic
activities
usually
concentrated
in
intense periods
around
midterm and
final
exams.
The
University's
academic
personnel
manual
(APM)
420.10
provides
that
readers
will
usually
be
graduate
.or
undergraduate
students.
However,
it
also
provides
that
non-students
may
be
employed
to
meet
·.
needs
of the University.
While
extremely
rare
at
UCLA,
non-students
have been
employed
in
the reader
position.
This appears only
to
have happened
when
an
individual
dropped
out of
school during
a
quarter
and
was
allowed
to
remain
employed
for the
remainder
of the quarter.
Readers
at
UCLA
are
typically selected
by
professors
and
are
appointed
by
the
department
chair
after
the
position
is
funded.
Readers and
the supervising faculty
members
typically
meet
prior
to the
start
of the quarter to discuss expectations
and
assignments.
Readers and
faculty
members
also will typically
meet
during the quarter to
discuss
major
writing
and
grading
assignments, such
as
midterm and
final
exams.
The
time
for
which
readers are paid
is
spent almost
entirely
performing grading
duties as
opposed
to
meeting with faculty discussing
pedagogical
issues.
The amount
of
pedagogy
discussed varies
among
faculty,
though
it
does not appear
to
be
substantial in
most
cases.
Readers
are
sometimes
requested to attend lectures,
but
it
is
not
typically considered part of the job
duties.
Since
readers
have
already typically taken the course or
its
equivalent, they usually are already familiar with the material.
23
Readers
receive
no
course
credit
for
the
dut
they.perform.
The
financial
need
reader
applicants
is
typically
not
taken
into
consideration
in
either
the
application or
selection
process,
nor
are
salary levels
keyed
in
any
way
to financial
needs
of
individual readers.
Graduate
students are paid
more
than undergraduates
in
recognition
of
their.
additional,,
expertise.
Commitments
fo~
reader
positions
are not included
in
letters
of
acceptance
sent
out
by
the University to students,
which
also
details
financial aid
packages
..
'
The
reader
staffing ratio
is
usually
determined
by
departments based
on
a
formula.
Typically courses with
a
large
number
of writing
assignments
get
more
readers than those with
assign~ents
easier
to
grade.
The
most
important
factor in
reader
staffing,
however,
is
the
number
students enrolled in the
course.
As
such,
reader ·staffing
is
enrollment driven
and
not
a
reflection
of the
employment
needs
readers.
Readers have
initial
control
over
the extent of
their
employment. They
are
urged not
to
over
commit
by
taking
on more
hours
than they
will
have time
to
complete, given the
academic
schedule.
By
carefully
considering the extent of
a
reader's
commitment,
is
hoped-·
1'
that conflicts
between
job dut
and
a
,
..
reader's
own
academic
obligations will
be avoided.
·
However,
since job duties often intensify
around
the
time of
midterm and
final
exams,
conflicts occasionally arise.
When
that
happens,
a
reader's
own
studies
may
suffer
because of the necessary
priority
of completing grades on time.
24
There
is
ample
evidence
in
the record
that
readers are
vital
to
the
accomplishment
of
UCLA's
teaching
mission.
Faculty
hire
readers
because
they are
unable
to
grade
all
the
papers
and
assignments themselves.
Without
the
services
provided
by
readers
the educational
program
at
UCLA
(just like at
UCSD)
would have
to
be
dramatically restructured
with extremely
negative
pedagogica.L.,.
results.
Dr.
Ellen
Switkes,
Assistant
Vice
President for
Academic
Advancement,
Office of
the President,
testified
that
the
University
could
manage
without
readers
and
tutors,
but
acknowledged
that
"it
would be bad
for the educational
enterprise.
11
Dr.
Switkes
's
solution
would be
for faculty to
read.
more
papers
and
assign
fewer
papers. Faculty
who
have
already
been
required to increase
their
duties
due
to
previous
budget
cuts
would
also.have to
hold
more
office
hours
and
either
conduct
tutorials
in larger classes or eliminate
them
altogether.
Dr.
Switkes so
indicated
that
GSis
could perform
more
of these
tasks.
In other
words,
the University could
eliminate
work
which
has been
highly valued
or
pass
it
on
,to
other University·
employees,
including other student
employees.
There
is
evidence
in
the record
that
a
large candidate pool
exists outside the
UCLA
system which
the University could tap
into
if it
decided
to replace .student
employees
with non-student
replacement workers
at
competitive
salaries.
25
Tutors
The
role
of
tutors at
UCLA
is
also
identical
to
that at
UCSD,
although
the
program
organization
varies
somewhat. At
UCLA
there are
two
major
tutoring
programs.
One
is
the
College
Tutorial
Service
(CTS)
and
the other
is
the
Academic Advancement··
Program
(AAP).
Each
of the
programs
offers
individual
and group,
tutoring to
UCLA
students.
The
goal of
the
CTS
is
to
assist
students
in
becoming
effective,
independent
learners.
The
CTS
program
has
four
distinct
sub programs:
English
Composition,
English as
a
Second
Language,
Math
and
Science
and
Athletic Tutorial.
The
first
three
provide
basic tutoring
and
skill
building
in
general
subject areas
rather
than
specific
courses.
They
are
open
to
UCLA
undergraduate
students
(approximately 20,000);
The
Athletic
Tutorial
provides
tutoring to
UCLA
athletes, tailored to specific
courses they are taking.
A
vastly
disproportionate
larger
number
of CTS.tutors are assigned
to
the Athletic Tutorial
program where
they
tutor
UCLA's
400
athletes.
The
mission the
AAP
is
the
retention
and
graduation of
students
who come
from
historically
under-represented
communities.
It
has been an
integral part
of
UCLA's
affirmative
action
program.
AAP
also offers
an
intensive
summer
program
designed
to ass
new
and
transferring students
w.ith
the
transition into University
life.
The minimum
qualifications to
be
hired as
a
tutor is
an
overall
GPA
of 3.0 and
a GPA
of 3.4 in their
major. Tutors will
26
1
have
typically
received
an
A
in
the subject
course
they are
tutoring.
In
the
AAP, a
selection
criterion
also
includes the
ability
to
work
with
AAP
students.
Many
AAP
tutors
have
themselves been former
recipients
of
AAP
tutoring.
Tutors
are hired
on
an
hourly
basis
with
a
50
percent
maximum
workload.
Tutors
are
typically
given
itude
in
scheduling
their
tutoring
sessions
so
that
they
do
not
interfere
with
their
own
coursework.
Tutors
receive
training
through
a
series
workshops
during
their
first
quarter
of
tutoring.
It
includes roleplaying,
video
presentations,
pedagogical
discussions
as well
as various other
issues
ranging
from
tutoring ethics to
logistics.
When
new
tutors
first start
they are also
assigned
to
a
more
experienced
tutor
to discuss issues
which
may
arise.
Once
past the
initial
quarter, they tend
to receive only
a
minimal
amount
of
supervision
and
evaluation.
An
individual
must
a
student
to
be
initially.hired
as
a
tutor.
However,
once
hired, they
may
continue
their
employment
for
an
additional three quarters
after
they
no
longer
have
student
status, either
by
graduating or
dropping
out.
Most
tutors are undergraduates, although
some
continue
on
in the role
as graduate students.
Educational Objectives of Student
Employees
Individual educational objectives vary
a
great deal
depending upon
the student's history, current circumstances,
progress in their
degree program and vision of their future.
27
Testimony
was
wide
ranging
and sometimes
diametrically
opposed.
Some
students define the educational
objectives
as narrowly as
getting.their
degree
and
nothing
else.
Others
seem
to
encompass
every
learning opportunity
impacting
both
university related
goals
as well as
future career
and
interpersonal
goals.··
Educational
objectives
of
undergraduate
students· are
often
more,;,•'"'•·
difficult
to assess
because
their
goals
in
general are
more
in
flux
and
less
defined
at this
stage of
their
academic
life.
Some
witnesses
also
framed
their
testimony
in
terms
of the
student's
motivation
for
seeking
employment
rather
than
their
educational
obj
ecti
ve_s.
Several
faculty
members
also
testified
about
both
the
motivations
and
the general educational
objectives
of
individuals
seeking
student
employment.
To
the extent
that faculty
members
were
offering
their
own
subjective
views about
the educational
objectives
and
motivation
about
student
employees,
their
testimony
is
speculative
and
not
generally·persuasive.
9
Where
faculty
testimony
is
based
upon
objective factors
such as
9
In determining the educational objectives of the student
employees,
the
Supreme
Court
made
it
clear that
PERB
was
to
focuson
the personally held subjective perceptions of the studentsthemselves
.
. .
Moreover,
nothing
in the language
of
subdivision
(f) even
hints that the.
Univ.e:r:s.ity'
..
s ..
suh~ecti:v:e,,percept4ons,.
of,.the
functions of housestaff dut should be
taken into consideration.
(Emphas
in original;
Regents of the
University of California v.
PERB (1986)
41
Cal.App.3d 601, 614 [224
Cal.Rptr.631](Regents)
. )
. .
28
conversations with
individual readers,
that
testimony
is
relevant.
To
the extent
that
faculty
and
staff
have
testified
about
discussions
they
have had
with
student
employees, however,
it
is
hearsay
evidence
and
entitled
to less
weight
than
the
direct
testimony
of student
employees
themselves,
«which•
was·
subject to
the
scrutiny
of cross-examination.
While
there
exists
great contradictions in
some
of the
testimony
offered
about
educational
objectives,
the educational.
objectives
of
almost
all
the student
employees
at
issue
in
this
hearing
can
be
summarized
into
two
major
objectives.
The
first
is
to
complete
their
educational
program and be
awarded
their
degree.
For
undergraduate
students
this
will
encompass
completion
of course
work.
For
graduate
students,
however,
it
encompasses
much
more. They must
not only
complete
course
work,
but
typically
they
must
also learn research
skills;
select topics
for
their
thesis or dissertation,
form
a
dissertation
committee,
perform
a
substantial
amount
of
original
research; write
a
dissertation
and
defend
it.
The
second major
educational objective
is
to
better position
themselves
for
their
next
step
after
they receive
their
degree,
whether
that
a
career or
an
additional educational
program.
This educationel objective typically
encompasses
gaining
demonstrable
skills,
building
a
strong curriculum
vitae
and
building helpful relationships.
The
demonstrable
skills
typically
sought include research, writing
and teaching
skills.
Building
a
strong curriculum vitae typically includes publishing
29
papers,
presenting research
at
conferences, being
the
recipient
of
prestigious
awards and
grants
and
gaining
direct
work
experience·
such
as
research
and
teaching. Building
relationships
typically
encompasses mentor
relationships
within the
university
as well as
professional relationships established-at
conferences
or
through
joint
publication
of research papers.
There
was
also
a
wide
variation
about
motivation
for
seeking
employment
within the
classifications at
issue.
These
can
also
be summarized
into
major
categories.
A
motivation
common
to
almost
all
student
employees
was
that
employment
generated
income
and
reduced
the fees
. 10
Although
there
were
students
who
had
other
means
of support
or
who
would
have sought
the experience
even
if
they
had
not
been
paid, they
were
quite rare
and
do
not
reflect
an
accurate cross section
of
student
employees.
Another
rather
universal motivation
for
seeking
student
employment was
the desire to
have
a
convenient job.
These
jobs
are
on
campus
and
can
typically
be
scheduled around
the
student's
own
academic program. Another
common
motivation for
seeking
this
work
is
that
it
enhances
one's
resume
or, in
the case of
undergraduate
students,
an
application for
graduate school.
10
Almost
all
student
employees
seek
and
accept student
employment due
to the
money
they receive.
As
the University
correctly points out,
however,
the primary purpose
test
was
·rejected
:by_.the
..
Legisl.a.tur-e ....
,The,, t-.est:. ••not.
,to·
decide whether
the student's
primary purpose taking the job
was
for
educational or
economib
reasons.
However,
the student'smotivation for taking the job
may
shed
some
light
on whether thevalue to the
incumbent
is
educational or
economic.
If
the
student seeks the job for
economic reasons, that
may
reflect lessvalue to the student employee's educational objectives.
30
Employment
the contested
positions
is
in
many
ways
seen as
a
reflection
of
academic
excellence
and
a
way
to
distinguish one's
self
from
the
mass
of
other students.
Other motivating
factors for
seeking
employment
which
arose
commonly,
although not
universally,
were
a
desire-to
gain
teaching experience,
to
help
other students,
to
interact
with
faculty
and
to
gain subject matter
knowledge.
The
desire to
help
other
studen·ts
seemed
particularly
strong
in
programs
like
AAP,
where
student
employees have
a
strong personal
identification
with the goals of the
program
itself.
The
interest
in
interacting
with
faculty
seemed more
significant
for
those
student
employees
attempting
to
organize
their dissertation
committee. Gaining
subject matter
expertise
may
be
stronger
motivation
for student
employees
preparing for qualifying
exams
or
entrance
exams.
11
There
was
scattered
evidence
of other
more
individual
motivations
for
seeking
this
employment. However,
none
seem
as
common
as those
listed
above.
Mentor
Issues
Mentoring
is
a
well recognized aspect of graduate education
programs
in the United
States.
It
generally
reflects
a
relationship that
is
significantly
more
important than simply
giving advice, answering questions or writing
letters
of
11
There
is
evidence, however,
that the Office of StudentSupport Services actually screens out potential applicants
who
are interested in tutoring as
a
method
of reviewing for their
own
board exams.
31
recommendation.
In the context of
this
record,
it
denotes
a
relationship
where
a
faculty
member
will
take
a
graduate
student
or
a
junior
colleague
under
his or
her
wing
and
offer
intense
collegial
advice
about
issues
including,
but not
limited to,
the
student's
educational goals,
research
goals
and.
methods,
.
career
objectives
and
opportunities,
and
the
student's
mastery
of
subject matter.
Mentors
will.often
go
well
beyond
writing
letters
of
recommendation and
will
more
actively
help graduates
in
their
search
for
employment.
Mentors
often
remain
available
to
the student for
guidance long
beyond
the
time
period the
two
individuals are
a
mentor-student
relationship.
Numerous
University witnesses
testified
about
the
importance
of the
mentor
relationship for
both graduate
and
undergraduate
students
and
their
fear
that
these
relationships
would
be
undermined by
collective
bargaining.
UCLA's
Interim Assistant
Vice~Chancellor
of
Graduate Programs, Jim
Turner,
testified
that
graduate students
without
strong University
mentors
are
greatly
handicapped,
tending
to
have
greater difficulty getting
strong
·1etters
of
recommendations,
llowships
and
eventually jobs.
Dean Duggan
testified
that
mentor
relationships exist
primarily
between Ph.D.
candidates
and
their dissertation
committee
members,
although
some
mentoring can
take place within
numerous
other student faculty relationships.
He
stated that
a
good mentoring
relationship is
the
most
important factor for
successful completion of
a
Ph.D. program.
32
Duggan
believes
that
although not
always
the
case,
union
representation
of student
employees
could
endanger
the
mentor
relationship.
An
example he
gave
was
when
·graduate
students
went
out
on
strike
in
support
of
AGSE
seeking
recognition
at
the
Berkeley
campus
in
1992.
According
to
Duggan,
many
faculty
.were
very
unhappy
at
having
to
take
sides in
the dispute.
Some
supported
recognition·of,the
union
and
others
were
against
it.
Some
faculty
were
also quite
upset
at
having
to
teach
sections
that
had
usually
been
taught
by
student
employees.
Duggan
also
believed
was
equally
true
that.many
student
employees
felt
resentment towards
faculty for
not supporting the
strike.
The
bad
feelings
on
both
sides
caused
disillusionment
and
strain
on
the
faculty
student
relationship.
During
the
strike,
Dugan,
who
was
the University
spokesperson
at
the
time,
was
on
the
dissertation
committee
of
Andy
Kahl, an
AGSE
spokesperson.
The
strike
created
a
strain
in
their
ationship.
However,
their
relationship
resumed
after
the
strike
and
Duggan
continued reading Kahl's
dissertation
chapters.
Duggan
it
was up
to the
two them
to
work
through
the
strain
created
by
the
strike
and
that
they
were
successful in
doing so.
According
to
Dr.
Switkes, the
mentor
relationship
could be
disrupted
if
faculty
were
limited in
any
way
in their hiring
preferences of student
academic employees. Switkes worries that
collective bargaining "could disrupt the fluidity of the student
33
faculty
mentor
relationship
by
hardening
the
ways
in
which
students
and
faculty
work
together.
11
Dr.
Switkes
testified
further that
it
is
very
likely that
a
student's thesis
adviser
could
also
be
that student's
supervisor.
This
is
very
true
for
GSRs-,
but
typically
not
for.
other
disputed
titles.
A
number
of
students
have
been
supervised as
GSis
by
faculty
who
have
also
been
on
their
dissertation
committee, and
a
few
have
even developed
a
strong
mentor
relationship primarily
through
the GSI-faculty supervisor
setting.
However,
the
depth
of
most
student-mentor
relationships
seem
to
have
developed
more
from
the supervision of the
students'
dissertation
research
than
from
supervision of the
GSI
work.
There
are, of course,
exceptions
where GSis have
developed mentor
relationships
only
with
their
GSI
supervisor
and
students
who
have
not developed
any
mentor
relationships
within
their dissertation
committee.
However,
these are
not the
norm.
Part-Time
and
Intermittent
Employee
Issues
University experts
testified
that in
their
opinion,
representation of part-time or intermittent.
employees
is
difficult
due
to turnover
and
lack of continuity.
Union
witnesses,
however,
offered
examples where
part-time or
intermittent
employees such as grocery clerks
have been
successfully represented
by unions.
34
Grievance
Issues
The
vast
majority
of
disputes
involving student
employees,
both
employment
and academic
related,
are
settled
within
departments through informal
discussions.
Student
employees and
faculty
supervisors are
encouraged
to resolve
matters
at
the
lowest
possible level
through
collaborative
and
informal
efforts.
Student
employees
may•·
also
ist
advice
and
assistance
of
their
faculty advisers,
department
chairs,
provosts,
and
deans,
if
matters are
not resolved
between
the student
employee and
the
faculty
member
or supervisor.
The
University offered.evidence
that conflicts at
UCLA
have
been
successfully
resolved using informal
methods.
Dean
Kathleen
Komar
testified
that
she has been
able to resolve
complaints
on
behalf students
without having
to
reveal the
identity
of the
student
making
the
complaint.
According
to
Komar,
it
is
le.ss
disruptive of student faculty relationships
if
complaints
can be
raised informally
and
confidentially
within the department.
Komar
has
found
department
ch~irs very cooperative
when
approached by
peers,
however,
she
fears
a
different reaction
if
they
were
faced with
a
more
"legalistic"
process.
If
employment
related disputes are not resolved informally,
a
grievance
may
be
filed.
The
grievance process for
employment
related
grievances
is set forth
.APM
140.
,•
l
Student academic
appointees are eligible togrieve
a
matter related to their
assignments
in the Teaching
Assistant, Research
Assistant,
Reader and Tutor
titles
only.
Student complaints pertaining to matters ofacademic standing or to
non-academic matters
35
(e.g.,
discrimination) are
handled through
applicable student
grievance procedures.
The
grievance
procedure provides
a
multi-step
process
starting
with informal
review
and
proceeding through
a
formal
hearing process.
There
are specif timelines applicable
at
each
step of the process.
If
the grievance
is
not
resolved informally
at
Step
I
within
30
days,
it
can
be
appealed
to
Step
II,
where
the
grievance
is
reviewed
by
the appropriate
department head
or
dean,
and
a
written
response
is
issued
by
the University.
If
the grievance
is
not resolved
at
Step
II,
it
may
be
appealed
to
either
Step
III
.
(administrative consideration)
or
Step
IV
(hearing .consideration,).
but not both.
The
vice chancellor of
academic
fairs
determines
whether Step
III
or
Step
IV
is
the appropriate route for
appeal.
At
Step
III
(administrative appeal), the
grievance
is
reviewed by
the chancellor's
designee
and
a
written decision
is
issued.
If
the subject of the grievance
is
appropriate for
Step
IV,
the grievant
may
elect to
have
the grievance heard
by
either
a
University hearing
officer
(appointed
by
the chancellor's
designee),
a
three-member
University hearing
committee (each
side
selects
one
member
and
they,
in turn, select
a
third), or
a
non
University hearing
officer (selected
by
the
parties
from
lists
provided
.,by_. _the.
,American
...
A:rbJ..t..r~t•i:0n•Asse0iation·)
.
12
···
·
nThe
following subjects are appropriate for
a
Step
IV
hearing: nondiscrimination, layoff
and
involuntary reduction in
time, personnel records/privacy, holidays, vacation, sick leave
corrective action {censure, suspension, demotion), dismissal,
36
Both
the
grievant
and
the University
may
be
represented
throughout
the process.
A
record of the hearing
is
either
transcribed or
recorded.
Both
sides.have the opportunity
to
call
and
cross-examine
witnesses
and
present
documentary
evidence.
A
statement of
findings
and recommendations
is
issued
by
the.
hearing
off
or
hearing
committee and
is
forwarded
to
the
chancellor or chancellor's
designee.
The
procedure
limits
the
authority
of
the hearing
officer
or
committee
from
exercising
academic judgment.
The
chancellor
may
adopt,
modify
or
reject
the findings
and recommendations.
However,
modified
or
rejected,
reasons
must
be
given.
The
process
also
specifically states that:
The
use
this
policy
shall
not
be
discouraged
by
the University
by any
means,
either direct or indirect.
That admonition
is
not
heeded
in
some
cases,
however.
University
witnesses
testified
that
they
actively steer
students
away
from
using the grievance process
and
into the student
1 s
academic·
appeals process.
For example, Dr.
Switkes
testified:
.
students are
not excluded
from
using
that
process. In other
words
the process,
unlike
some
other policies in the
APM,
does
not say
students
may
not use
this
policy.
However,
my
office
has
for
many
years
and
continues to advise
that
we
can't think of
any
appeals or grievances
that
should be
allowed under
that policy
from
studentemployees.
We
advise
that
all
student
..
,griev.ances
and~-appeal..s
get
,~harn:il:Led·,~through ·
the student appeals
mechanism and
not through
the
employment
appeals
mechanism.
reprisal,
and procedural irregularity in the personnel review
process.
37
Switkes
urges
that
such
a
grievance
procedure
not
be
used
by
student
employees
because she
fears
that
any
process
having
the
potential to
formally
find
a
wrongdoing
by
a
faculty
member,
or
one which
could
lead
to
an
order against
a
faculty
member,
could
lead
toretribution
by
that
faculty
member
against.the,student
employee
grievant.
Thus,
according
to
Switkes,
even though
the
faculty
member
may
have been
completely
in
wrong
and
a
terrible
grievance
might be
redressed,
it
could
ultimately
be
damaging
to
the student
employee
grievant
because
faculty
advisers
and
students are
tied
together for
their
professional
life,
and
professors
can
exercise great
power
over
students.
Dr.
Judith
Craig, Associate
Dean
at
the University
Wisconsin
at
Madison,
supported Switkes' testimony
that
any
grievance process
for student
employees
is
problematic
because
of
the
potential for
academic
retaliation
by
faculty.
Craig
also
opposes
representation for student
employees
because she
feels
union involvement
creates
a
more
adversarial relationship.
Craig
testified
as follows:
I
think that
it
is
much
better,
it's
more
productive
and
tends
to resolve issues
better
and
faster
if
the
union not
involved.
When
the
union
is
involved,
I
think
an
adversarial
tone
comes
into the
situation that is
counter-productive.
Craig
also fears that
a
grievance process
is
problemat
becaus.e arbi.t.r.ators.~might
...
invG1v:e
..
t;rhemse.J:-ves
•in·•academic
issues.
In addition, faculty
members
might avoid taking appropriate
ion simply out of fear that
a
grievance might be
filed.
38
Dean
Littlefield
of
UCSD
also
testified
that
allowing
students
to
be
represented
makes
the
process
more
formal and
hampers
the
parties' ability
to
settle
a
dispute
in
a
collaborative
manner.
Littlefield
referred to
two
instances
where
students
had been
accused of
academic
dishonesty.
They
both
chose
to
be
represented
and
Littlefield felt
the process did
not
work
as
well
as
a
result.
The
student
brought
in
an
attorney,
and
as
soon
as
that
happened,
the faculty
and
department
sort
of
backed
away
and
decided
that
they weren't
that interested in
collaborating
because
the student
was
legally
represented
in
this
endeavor.
These
two
cases
were, however,
the
only
two
such
cases
Littlefield
had
experienced
since
she
came
to
UCSD
in
1979.
Littlefield
has never
been
involved
in
a
grievance
filed
pursuant
to
a
collective
bargaining
agreement, and she acknowledges
that
the
right to
file
a
grievance
does
not
limit
·the
parties' ability
to
settle
the dispute informally.
lefield's
experience
is
that
most
often disputes
involving student
employees
are
tied
to
academic
issues.
According
to
Littlefield,
while
disputes rarely_involve only
employment
issues, there are cases such
as denial of sick leave
or
assignment of too
many
hours,
that
do seem
strictly
employment
related
.
.
The._,evidence_.regarding .,gr,i@vances•at•·•Gther··universities
is
mixed. Union
witnesses generally
testified that grievance
procedures provide an
effective
mechanism
for
employees
to
address concerns.
Many
said that such procedures tend to
39
depersonalize the
issues raised, attacking
problems
and
not
people. In
contrast,
practically
every
University
witness
who
has
been
involved
in
grievance processing convincingly
disputed
the
idea
that
a
grievance process depersonalizes
complaints
raised
by
student
employees.
A
number
of witnesses
testified.about
grievance.experiences
at
UC
Berkeley.
Dean Duggan
does not
believe
that
formal
procedures,
regardless of
the nature of the substantive issues,
tend
to
depersonalize
conflicts.
He
believes
that
any
time
individuals are challenged,
called
on
the carpet, or
embarrassed,
they tend
to
become
defensive.
Duggan's
experience
at
UC
Berkeley
leads
him
to
believe
that
union
representation
tends
to
make
students think of faculty
as
a
monolithic
institutional
body
rather
than as
individuals.
Duggan
believes
that conciliation
is
more
difficult
because
faculty
see
themselves
being perceived
by
students
as
members
of
a
class, rather
than
individuals.
This,
in turn, leads
to faculty
defensiveness.
The same
can be
said of other
processes
available to
students,
however.
In
the graduate student
appeal process
at
UC·
Berkeley,
where academic
conflicts
may
be
raised, students
have
the
right to
a
hearing
and
may
be
represented.
If
the student
is
represented
by
a
lawyer, then so
is
the University,
and
the
adversarial nature of the dispute
is
often ratcheted
up
to
another level.
Duggan
also testified
about
two
cases at
UC
Berkeley where
grievances were
filed
by student employees
against their
mentors.
40
In
one
case
there
was
no
erosion of the
mentor
relationship
and
in
the
second,
the personal
relationship deteriorated.
Duggan
clearly prefers to
resolve disputes
before they
get
to
a
formal
appeals process,
whether
is
academic
or
employment
related.
Approximately
80
percent
of
the
sputes.
coming.,to
Duggan
are resolved informally.
According
to
Duggan,
however,
most
cases
that
get
to
the
formal
appeals process are
just
too
difficult
to
resolve
any
other
way.
Debra
Harrington,
Manager
of
Labor
Relations
at
UC
Berkeley,
testified
that
other processes,
such
as
bringing disputes before
the
Graduate Council
in
a
manner
similar to
academic
disputes,
would
be
less
confrontational
because
is
not
a
standard
evidentiary
process
and does
not
necessarily
involve having
a
faculty
member
come
in
and
testify.
Harrington
believes
such
a
.process
would be
more
fective
because
it
is difficult
to
separate
employment and academic
issues
and
the
G~aduate
Council
would have
the
ability
to
look
at
the
total
relationship.
Mary
Ann
Massenburg,
International Representative with the
United
Automobile Workers
(UAW},
testified that
the University's
concerns about
arbit~ators intruding into
academic judgments
via
the grievance process can be
dealt
with
in
a
manner
similar to
other universities
and
industries
where
related issues
have
arisen.
Massenburg
cited
examples
of the
UAW
representing
attorneys
where
the parties
have
successfully dealt with employer
concerns about
arbitrators
making judgements regarding legal
expertise, or with writers
where employers want
to maintain sole
41
discretion
over
editorial
content
and competence
matters,
or
artists
where
the
concern
is
over
creative differences.
Massenburg
also
testified
that
employment
disputes
over
payroll
processing,
workload,
emergency
loans,
pay,
classification,
termination,
and
layoff
have been
resolved
through
the
use
of
both informal
and
formal
processes
of
APM
140
without
any
adverse
impact
on
student·
employees.
In
many
instances, the
outcomes
the grievance process
have
been
the
resolution
of
conflicted situations
which have
been
acceptable
to
both
sides.
Dr. Steadman
Upham,
Dean
of the
Graduate School and Vice
Provost
of'the
University of
Oregon,
testified
that
under
current
leadership, they are experiencing
relative
labor
peace.
The
labor
management
relationship,
however,
like
any
bargaining
relationship,
evolves
depending
upon
the leadership of
both
parties;
sometimes good, sometimes
less
so.
Dean
Upham
expressed
his
concern
that
grievances are accelerated
prior to negotiations
as
a
pressure
tactic
and
that
grievances
have
not
been
settled at
the lowest
possible levels.
He
believes that
the
union uses
individual grievances as
a
possible
way
to build solidarity for
bargaining issues.
It is
of great
concern
to
Upham
that
an
arbitrator
might
assert
binding authority
over academic
decisions.
It
appears,
however,
that the authority of
arbitrators
has not been
that
great of
a
problem
to date.
No
grievances have gone
to
arbitration since
Upham
has been dean. In the history of the
42
bargaining
unit,
only
two
grievances
have
ever
gone
to
arbitration;
one on
dues
deductions
which
was
decided
in
favor
of.
the
union
and
one
on
severance
pay which
was
decided
in
favor of
the
university.
Upham
cited
solutions
reached through
the
grievance process
which
were compromises
designed
to
meet
.the
key
interests
of both
parties.
Upham
also
cited
several
grievances
where
the University prevailed
by
simply
maintaining
s
pos
ion
that
the
grievance involved
rights
reserved
to
the University.
Diane
Rau,
a
union
representative
from
the University of
Oregon,
testified
that
grievances
were
often
settled
informally
at
the
lowest
possible levels.
She
gave
numerous
specitic
examples
of
employment
related
grievances being
.settled.
Issues
involving personnel
files,
evaluation processes,
assignment
of
pay
levels, payroll issues,
work
environment,
off
equipment
and
supplies,
.use
of telephones,
and
safety
were
settled
using
both informal
and formal
grievance processes within the
collective
bargaining
agreement. According
to
Rau,
neither
the•·
processes
used, nor the
outcomes, had any
negative
effect
on
unit
members'
ability
to operate
freely
within
their
academic
environment.
She
testified that
most
disputes are resolved
informally
and
typically
very quickly.
She
may
not even
hear
about them
when
they are resolved.
·
They
are often
1
timate
concerns which
are addressed promptly, with
no
further action or
discussion.
Occasionally,
however,
grievances can
damage
the student
faculty relationship.
Dr. Paul Lehman, an Associate
Dean
at the
43
University of
Michigan, gave
an example where
a
student
employee
felt
her grievance
was
against the University,
a
huge
impersonal
institution.
When
it
came
time
to try
to
resolve the grievance,
however,
it
became
clear that
the
grievance
was
aimed
at
one
particular
faculty
member
I who
happened
to
be
a
professor
within·"
the
grievant's
major.
According
to
Lehman,
the
informal
conversations
at
Step
I
of
the
grievance
procedure
were
perceived as
a
casual
inquiry
by
the
professor
rather
than
a
grievance.
When
the professor received
the
written
grievance, the
professor
became
11
an
emotional
basket
case.
11
Lehman
assured
professor
that
the grievance
was
a
routine
procedure
that
the student
employee had
a
right
to
file
under
the
terms
of the contract,
and
that
the professor
should
not take
it
personally. Nevertheless, the professor
was
in
Lehman's
office
several
times
in tears
over the grievance.
Lehman
had
no knowledge
about
the
state
of the
relationship
between
the grievant
and
the professor
prior to the grievance.
After the grievance,
deteriorated rapidly to the point
where
the student
employee
left
the University of
Michigan
to finish·a
degree program
elsewhere.
Dr.
Judith
Craig,
from
the ~niversity of
Wisconsin,
believes
that contracts providing for grievance
mechanisms
escalated
issues to the highest levels very rapidly. Craig believes there
was
very
litt
effort
made
to resolve issues informally.
She
also believed that the union would
increase the
number
of
44
grievances
in
order
to
build
support
for negotiations
when
contracts
were
coming up
for
renewal.
Dr.
Alice
Audie-Figueroa,
Assistant Director
of the
Research
Department
of the
UAW,
was
formerly
a
job steward
for
the
Teaching
Assistants
Association
at
the University
Wisconsin,
Madison. While
there,
she
processed
a
number
grievances
and
found
having
a
process
for resolving disputes
helpful.
In
contrast to the
testimony of
Dr.
Craig, she
feels representation
was
helpful
to grievants.
Most
of
the grievances
she
processed
were
resolved
at
the
lowest
levels
within the
department.
In
a
few
cases regarding
workload,
the information the
parties
had
available
was
insufficient to
make
informed
decisions.
The
union
and
the
university
agreed
that for
the next semester,
teachers
assistants
would keep
careful
logs of
their
assignments
and
hours.
The
parties
discovered
there
were
clear
inconsistencies
among
faculty
about
expectations
and
responsibilities
which
led
-to inconsistent
assignments.
These
collaborative forts
helped
to
resolve the dispute.
Nancy
DeProsse
is
a
UAW
representative at
the University of
Massachusetts
at
Amhurst. Both
the
university
and
the
union
emphasize informal grievance
resolution.
During
her tenure,
approximately
30
to
40
grievances covering
a
wide range of issues
have been resolved, almost
all
of
them
at
the
first
informal
step.
Only one
or
two have gone
to
Step
II
and
only
one has gone
to arbitration.
Sometimes
the parties will bring the grievant
and the faculty
member
together to resolve the issue
and
45
sometimes
the
parties
will
involve
the
department head.
test
ied
that
the
grievance process
has
not
had any
detrimental
effect
on
the
relationships
between
student
employees and
faculty
·members.
In only
one
instance
were
the
parties
unable
to
resolve
a
student
employee
faculty
conflict.
In
that
case, they
were
able
to
have
the student
employee's job
moved
to
another
location
with
a
different
faculty
supervisor.
The
conflict
between
the
student
employee
and
original faculty
member
preceded
the
grievance
and
the process resolved
rather
than exacerbated the
conflict.
Dr.
Daniel
Julius,
Associate
Vice
President for
Academic
Affairs
and
Director of the
National Center
for
Employment
Studies
at
the University of
San
Francisco,
testified
that
grievances
in
a
collective
bargaining
setting
can be
particularly
troublesome because
arbitrators
may
interfere
with
academic
issues
..
Julius believes
it
is
likely that arbitrators
may
assert
authority
over
issues
such
as tenure decisions or the
awarding
of
grades.
The
following very
briefly reflects
some
of the grievance
processes included
in other collective
bargaining
agreements
involving student
employees, which were
offered into
evidence
at
the hearing.
They
are
1
multi-step processes beginning with
some
form
of informal
resolution discussion
and culminating in
final
and binding
arbitration.
Both
parties
have
the right to
be
represented at all
stages of the process.
A
record
is usually
46
made
of the
proceedings
and
parties
are
entitled
to
both
call
and
cross-examine
witnesses
as
well
as
offer
documentary
evidence.
The
collective
bargaining
agreement between
the University
of
Michigan
and
the
Graduate
Employees
Organization,
AFL-CIO
Local
3550
includes
informal
discussions
at
Step
I
and
ends
in
final
and
binding
arbitration at
Step
IV.
At
the University
of
Wisconsin,
Milwaukee,
the
collective
bargaining
agreement between
the
State of
Wisconsin
and
the
Milwaukee
Graduate
Assistants
Association provides
a
grievance
process beginning with informal
discussions
at
Step
I
and
ending
in final
and
binding
arbitration at
Step
IV.
Allegations of
retaliation
based
on
the
use
the grievance process are
specifically
deferred
to
the
Wisconsin
Employment
Relations
Commission.
The
termination of probationary
employees
is
a'lso
not
subject to
the grievance process.
The
parties
have
agreed
to
meet whenever
necessary-outside the grievance
and
collective
bargaining procedures
in order
to
share information
and
concerns,
and
to resolve matters concerning the administration of the
contract.
At
the University of
Wisconsin,
Madison,
the
collective
bargaining
agreement between
the State of
Wisconsin and
the
Teaching
Assistants Association
is
very similar to the University
of
Wisconsin, Milwaukee
collective bargaining agreement, except
that
a
grievance
may
be
filed
by
either
the union or the
employer.
When
the grievance
is
denied
entirely, the fees and
expenses of the arbitrator are borne
entirely
by the party
47
initiating
the grievance.
When a
partial
decision
is
issued, the
arbitrator
allocates
expenses.
At
Madison,
union
management
meetings
are
regularly
scheduled each
month
in
an
effort to
share
information
and
concerns,
and
to
discuss administration of the
agreement.
The
collective
bargaining
agreement between
the
State
University
system
Florida
and
the
Graduate
Assistants
United.
(United
Faculty of Florida) provides
for
informal
discussions
prior to
a
grievance being
filed
and
leads
to
final
and
binding
arbitration at
Step
IV.
Arbitrators
are
specifically
precluded
from
reviewing
supervisory exercises
of
discretion.
The
collective
bargaining
agreement between
the University
of
Massachusetts
at
Amhurst
and
the
Graduate
Employee
Organization
Local
2322,
UAW,
includes
a
grievance procedure
starting
with pre-grievance informal
discussions
and
ending
in
final
and
binding
arbitration at
Step
III.
It
includes the
following
limitations to the
authority
of the
arbitrator:
Furthermore, the
arbitrator shall
be
without
authority to consider
or
render decisionsconcerning
any academic
matters or
any
aspectof
a
GEO
member's
status
as
a
student.
The memorandum
of understanding
between
the State of
New
York
and
the
Graduate Student
Employee Union, Communication
Workers
of
America, Local 1188,
provides for binding
arbitration
for.
f
i:ve
types
..
of
,gri.e:vances"
....
,It
•·S•peoi-f,:l,call-y
is·
not applicable
to actions
ta}{en
by
the
employer regarding academic
matters.
Fees and expenses are paid by the losing party.
48
At
the University of
Oregon,
the
collective
bargaining
agreement
with
Graduate Teaching Fellows
Federation
(AFT
Local
3544,
AFL CIO)
provides
that
grievances
may
be
filed
by
individual
employees,
the
union,
or the University.
The
part
also negotiated
limitations
on
the
arbitrator's
authority
regarding
academic judgements,
including the
following:
The
arbitrator
shall
have
no
authority
to
hear
or
decide
any
issue or
grievance
relating to
any academic
decision or
judgment
concerning
the
member
as
a
student
.
The
arbitrator
shall
have no
authority to
make
a
dee
ion
which
is
contrary
to
the
academic
policies
and academic
regulations of
the University.
The
parties
also
agreed
that
the
union
and
the
designee
of
the President of the University
shall
meet
at
the request of
either
party to discuss matters
pertinent to
the
implementation
or administration of the
contract.
Those
meetings
are not
for
negotiations, but
rather for the
purpose
of discussing
collective
bargaining issues or
any
other issues
that
are of
concern
to
the
parties.
Information
Flow
There
are currently
both
campus
and
departmental
committees
upon which
graduate students serve.
Some
student
members
are
extended voting privileges
while others are advisory only.
Some
student
members
are appointed
by
the Graduate Student Association
and
others are elected in
departmental elections.
Many
of the
committees deal with issues having economic and academic
relevance to the disputed
titles.
49
Several witnesses
called
by
the
Petitioner
testified
about
how
student
employee
unions
gather
information
from
members
in
their
role
as
the exclusive
representative.
Typically,
members
are
surveyed
to
determine
issues
and
concerns. Bargaining
notes
are kept,
in
order
to
be
available to
and
build continuity for
successor bargaining
teams.
Bargaining
teams
are
selected in
an.
effort to
balance the
interests
of bargaining
unit
members
..
Job.
stewards
are also selected in
an
fort
to
make
representation
available to unit
members.
Several
collective
bargaining
agreements, such
as those
mentioned
above from
the University of
Wisconsin
at
Madison and
Milwaukee
and
the University of
Oregon,
also
provide
for special
processes outside the grievance
and
collective
bargaining
procedures
for
mutually sharing information
and
concerns
among
the
parties.
There
was
testimony
that
these information sharing
meetings
were
successful
at
heading
off potential
problems.
The
Rhetoric of Conflict
The
University offered
a
series
of
newspaper
articles
seeking
to
show
that
supporters of the
Petitioner
have
demonstrated
a
tendency
to
vilify
the University
and
its
administrators. In
one
extensive
article entitled
UCLA
and
Sexual Harassment,
published in
SAGE NEWS,
the
Petitioner's
newsletter, the union
stated:
Since sexual harassment
is
so prevalent
on
the
UCLA
campus,
the system would be
overloaded with the complaints
if
the victims
are properly informed about the rights
and
the university's responsibility, This
is
50
exactly
what
the administration
does
not
want
to
occur.
The
article
was
also
critical
of
complaint
resolution
officers
who
were
trained
and
employed
by
the University.
The
Petitioner
argued
that
they
might have
greater loyalty to
the University
than
to
the victims of
sexual
harassment.
According
to
the University, these provocative statements
could not
have
been
made
in
good
faith
because
there
exists
a.
sexual
harassment
committee
composed
of
student, faculty
and
administrators
which
addresses
this
issue.
According
to
the
University, there
so has
been
much
training
and
considerable
efforts
to
inform
the
u1;1iversity
community
in general,
and
victims
in particular,
about
their rights.·
The
University
was
also
very
critical
two
other
SAGE
articles
appearing
in
the
UCLA
campus
newspaper. One.claimed
that
AGSE
played
a
role in obtaining
benefits at
the
UC
Berkeley
campus
which were
later
adopted
at
UCLA.
The
other
warned
of
a
potential loss of student
employee
benefits
being considered
by
the
UC
Office of the President.
In
all
three instances,
however,
it
appears
that
the
Petitioner
was
putting forth legitimately held
views
regarding
issues of possible great
concern
to
its
current
and
potential
membership.
Additionally, the evidence
strongly supports
a
finding. that.
..
the
Petit.ion.er,
.wa-s ,muo-h ,li;)et
t:er ··informed about the
facts of the disputes than
was
the University spokesperson. For
example,
in the article
regarding
AGSE, much
of the Petitioner's
claim
was based upon the
UC
Berkeley Interim Agreement. Even up
51
to
the
time
of her
testimony,
Dean
Komar
had
not read
the Interim
Agreement and
apparently
based
her
position
upon
second
hand
reports
from
individuals
not involved
in
the
negotiations
over
the
agreement.
Other
University
Academic
Units
Several
other
academic
units
exist
within the University
system. There
is
a
faculty unit at
UC
Santa
Cruz
represented.by:
the
Santa
Cruz
Faculty Association,
a
systemwide
unit
of
professional
librarians
(Unit
17)
represented
by
the University
Federation of Librarians, University
Council-American
Federation
of
Teachers,
and
a
systemwide
unit
of
lecturers in
the
non
academic
senate
instructional unit
(Unit
18)
represented
by
University
Council-American Fede.ration
of Teachers,
AFL-CIO.
In
each
of these
units,
the
parties
have
negotiated
collective
bargaining
agreements.
The
collective
bargaining
agreements
contain
some
unique
provisions to
accommodate
the
particular interests
of the
parties.
For example,
at
UC
Santa
Cruz,
the
parties
agreed
to defer to
a
wide
range
of
existing
University
policies
as
part
of
their
contract.
The
librarian
contract
has
similar provisions
which
defer issues to other
longstanding University polic
,
thus excluding
them from
the
grievance processes of the contract.
During
the
pendency
of the appeal
in the
AGSE
case, the
University
and
AGSE
engaged
in
a non-HEERA
representation process
at
UC
Berkeley. In August 1989,
in
an
effort to limit the
University's potential remedial
liability if
the
AGSE
decision
52
were
reversed
on
appeal
and
to
avoid
additional recognition
strikes at
the
start
of the
school
year, the University
and
AGSE
entered
into
an agreement
which beca~e
known
as
the Interim
Agreement.
The
Interim
Agreement
provided
that the
University
would
meet
with
AGSE
in
good
faith,
on
a
regular basis
at
reasonable
times,
to
discuss issues
related to
terms
and
conditions of
employment
of
AGSE's
membership.
As
part
of
the
agreement,
the
University
agreed
to
provide
AGSE
with
payroll
dues
deductions
and an
option for
dependent
health
care
coverage
at
the
Berkeley
campus.
AGSE
agreed
to
a
no-strike
clause
for
the duration
of
the
agreement.
The
terms
of the
agreement
also required
ratification
by
the
AGSE
membership.
The
parties stated in
the
document
that
the
agreement
did
not confer
rights
or obligations
under
HEERA
and
that
the
agreement
expired
upon
final
determination of
the
AGSE
decision.
There
is
conflicting
testimony about
the negotiating
process
and
rights
provided
in
the Interim
Agreement.
It is
clear,
however,
that
the
parties
did
meet
an
effort
to resolve
problems
of
a
collective
bargaining nature
which were
of concern
to the
parties.
Both
sides
had
negotiating
teams, exchanged
proposals
on
various issues
and reached agreements. Agreements
were
reduced
to writing
and became
enforceable policy.
These
final
agreements, however, were
issued
by
the University as
University policy
and were not mutually signed as contract
provisions.
53
AGSE
currently
the exclusive
representative
a
unit
of
readers,
tutors,
acting
instructors,
nursery
school
attendants,
and
community
teaching
fellows
at
UC
Berkeley.
During
the
AGSE
hearing
in
1985,
University
stipulated that
readers,
tutors,
and
acting instructors.were
employees
as defined
by
the.Act,,.,and,
therefore ent led to rights
guaranteed
by
HEERA.
AGSE
and
the University
have
been engaged
in
bargaining
.for.
an
init
contract
at
Berkeley
since
late
1993.
The
part
have
negotiat
over
a
full
range
of bargaining
subjects
and have
reached
agreement
on
a
number
of
issues.
Progress
toward
a
first
contract,
however,
has been
very
slow.
Negotiations
have been
stalled, to
some
extent,
over
disputes
in unit
makeup.
13
In
April
1996, an impasse
was
determined
to exist
and
a
mediator
was
appointed
by
PERB.w
The
tone of
negotiations
has been
described
by
both
parties
as
mixed. Debra
Harrington described negotiations as
sometimes
quite antagonistic,
and sometimes
fairly
cordial.
She
said there
have been times
when
both
parties
have
taken strong positions in
negotiations.
Mary
Ann
Massenburg
testified
that
the
13
After the representation hearing, but
prior to
the
representation election, the University stopped using
title
acting instructor,
and
placed
all
such employees
into the
title
of graduate student instructor
(GSI}
which had been excluded
from
coverage under the Act. There
is
also
a
dispute
about whether
learning
skills
counselors are "tutors" within the unit
description.
14
The
parties are currently in mediation. (Regents of the
University of California
Case
No. SF-M-2137-H.)
It isappropriate to take
official notice of information in
PERB
casefiles. (California State University,
Hayward (1982) PERB
Decision
No. 231-H.)
54
negotiations
have
basically
the
same
atmosphere
and
tone as
many
other negotiations
in
which
she has
participated.
She
describes
them
as
generally
civil,
sometimes
humorous,
and sometimes
argumentative.
Massenburg
noted
that
the
large University
bureaucracy
sometimes
makes
the
decision-making
process
more.
cumbersome
for
the
employer,
but otherwise
negotiations are
similar to other public
sector
bargaining experiences.
On
some
issues, the University
has
taken
a
strong stand
to
avoid
any
infringement
upon
the
University's
academic judgement
and
discretion.
For
example,
the
parties
have
spent
a
great
deal
of
time
discussing issues
regarding
an
arbitrator's
authority to
make
academic judgments.
The
parties
have
reached
part
agreement
on
the
arbitrability
of
some
issues.
While
the
parties differ
on
the progress of negotiations
(management
feeling
less
progress
is
being
made
and
the
union
believing
more
progress
has been
made)
they
have
reached
some
agreements,
solved
some
problems., and
hit
other
stumbling blocks
which
they are
still
working
to resolve.
Over
the years, the University
has been
subjected to
a
number
strikes
from
student
employee
groups.
At
UC
Berkeley
there
have been
strikes in
May
of
1989, and
November
and
December
1992. At
UC
Santa
Cruz
there
have been
two
student
employee
strikes.
There have
also
been
strikes at
UCLA
and
UCSD.
All.of
these
strikes
have been
recognition strikes.
None
occurred
during
a
.formal
bargaining relationship.
55
Credibility
Findings
In
making
these findings
of.
fact,
I
have weighed
the
contradictory
testimony
of
many
witnesses. Several
experts
were
called to offer
opinion testimony
about
the
second prong
of
subsection
(f).
I
generally find
that
those experts
called
.by
the
Petitioner
were
more
credible, for
purposes
of
this
hearing,
than those
called
by
the University.
The
experience of
Petitioner's
experts
seem
to
either
have
both
more
breadth
and
depth,
or
was more
directly related to
the
issues in dispute
in
this
case.
Petitioner's
expert,
Dr. David Hecker,
Assistant President
of the
Metro
Detroit
AFL CIO,
had
direct
negotiating
experience
involving student
employees,
combined
with extensive
training
and
academic
expert
in
the
field.
His
testimony
did
not appear
to
be
overstated.·
He
was
able
to
support
his
opinions with
specific
facts
and examples. His
direct
testimony
and
cross
examination
were
also internally consistent.
Dr. Alice Audi-Figueroa's
expertise
is
strong
in
the area of
contract analysis.
She
is assistant director
of research for the
UAW
and
is
a
resource for local bargaining
units
on
a
wide
range
of
collective
bargaining issues.
She was
able to clearly
articulate
the basis for her opinions
and
support
them
with
numerous examples and
helpful analysis.
Her
direct
and
cross
examinations were
also internally consistent.
University witness
Dr. Daniel
Julius
has tremendous
credentials as an expert in collective bargaining higher
56
education.
He
has
negotiated
at least
25
collective
bargaining
agreements
in
higher education
and
has
authored
5
books and
numerous
articles
on
many
collective
bargaining
subjects.
However,
his
wealth of experience
does
not
include
any
negotiations
involving
units
of.
student
employees.
Most
of
his.
information regarding student
employee
negotiations
was
obtained•.
second
hand.
As
well
as,
being
primarily
hearsay,
his
testimony
suffers
from
excessive
generalities
and undermined by
inaccuracies in
specific
examples
cited.
For
example, Dr.
Julius'
testimony about
the University of
Oregon
was
inconsistent
with
that
of
Dean
Upham
from
the University of
Oregon.
Additionally,
Dr.
Julius stated
as
a
fact
that at
the University
of
Oregon,
the
parties
reached
agreement
to
limit
the
amount
of
time
one
could
be
a
graduate student to
seven
years.
This
was
offered
as
an
example
of
a
conflict
between
maintaining
bargaining
unit status
and
maintaining
good academic
standing.
On
cross
examination,
however, he
was
unable
to
find
that
provision in the
Oregon
collective
bargaining
agreement and
admitted
it
was
only
a
management
proposal.
Julius
was
incorrect
about
the
number
of
collective
bargaining
agreements
negotiated
at State University of
New
York
{SUNY)
and
admitted
on
cross-
examination
that
he
has not read
any
of the
SUNY
proposals or
given
SUNY
any
input.
His
discussions
have been
limited to
strategic issues.
Such examples undermine
the
credibility
of
this witness's opinion testimony.
57
Another
University expert witness
who
did
not
suffer
from
lack of
specific
knowledge
of student
employee
negotiations
was
Dr.
Craig,
an
Associate
Dean
at
the University of
Wisconsin
in
Madison.
She
has
had
extensive
experience with
student
employee
bargaining
at
the University of
Wisconsin,
Madison
since
1976.
Her Ph.D.
dissertation.studied
the
causes
and
conditions
which
led
to
initial
recognition of
a
graduate student
employee
union.
at
the University of
Wisconsin.
Craig's
credibility,
however,
suffers
from
a
very
shallow
analysis
and
apparent lack of
understanding of the bargaining
process.
For
example,
when
asked about
difficult
which.arose
.during
the University of Wisconsin's
early
stages of the
bargaining
relationship
from 1971
to
1976,
responded
as
follows:
Q.
What
activities
w~re
difficult
that
you
are referring
to?
A.
Well,
there
were
-
there
were
stewards
and groups
of teaching
assistants
who
would
requestmeetings,
would
challenge
decisions,
that
kind
of
activity.
Q. And
what
was
difficult
about
that?
A.
Well,
it
interferes
with
-
it
interferes
with the graduateprogram.
It
makes
it
difficult
for
people
who
used
to get along well
together,
and used
to
work
towards
a common
end
to
keep on working
.towards
-"tha,t
eF.1:Gi.
Craig
also tended to
make
gross generalizations
which she could
not back up with specifics.
When
asked to give an example
of
harassment or
a
nuisance grievance, Craig
testified:
58
.
the
[union].
filed.complaints,
if
not grievances,
on
behalf of teaching
assistants
in
departments over
classsize
issues
where
the teaching
assistants
had
no
interest
in
grievancesbeing processed.
I
would
characterize
this
as nuisance
and
hara~sment,
and
so
did the
departments.
Q.
And
did the
university feel
that
was
that
the
[union]
was
being
deliberately
provocative?
A.
Yes,
I
did.
When
cross-examined
on
these
harassment/nuisance grievances,
it
became
clear that
Craig based
her conclusions
on
the
comments
two
department
chairs
who
had
no knowledge
of
whether
the
teaching
assistants
had
asked
the
union
to
look
into
the matter.
Furthermore,
in
some
of those grievances, adjustments
were
made
because
the University
was,
in fact, violating
its
own
class size
policy.
Craig
also
gave
several other
examples
of
how
she
feels
collective
bargaining
does
not
work
in
a
university setting,
which
appear
to
be
based
entirely
upon
internal
management
disputes
between
the University
and
its
chief negotiator.
She
so
testified
about
the negative
impact
the union's
maintenance
of
membership agreement might have on
the University's
recruitment of future graduate students. In doing so,
it
became
clear
she could not
distinguish
between maintenance of
membership
agreements
,
..
,.agency
.fe,e" agr.eement:.s •
or a,uni0n shop. While
these
concepts can
often confuse people,
a
witness presented as an
expert in collective bargaining testifying
about provisions of
a
contract she helped negotiate should
know
the difference.
59
The
testimony of
Julius
and
Craig
is
also
less
persuasive
because
their
opinions
about
student
employee
coverage under
HEERA
are
based
upon
beliefs that collective
bargaining
is
detrimental
to
all
higher education
academic
units.
They
painted
their
opinions with
a
very broad brush,
thus
contradicting.the
California Legislature,
which
specifically
determined
that
it
was
11
advantageous
and
desirable"
to
provide
coverage
for faculty.
When
opinions are
based
upon
a
fundamental
belief
so
at
odds
with
the
stated
purposes
of the
Act,
those opinions
about coverage
under
the
Act
tend
to
be
less
compelling.
Of
course
it
is
not
appropriate to ect
opinions of
a
witness simply'because they
believe
collective
bargaining
is
destructive in
academic
settings.
However,
when
combined
with otQer
credibility
issues
as well,
their
opinions
were
not
helpful in
making
the necessary
distinctions
between
student
employee
coverage,
which
is
at
issue
in
this
case,
and
other
academic
bargaining,
which
is
clearly
sanctioned-by Legislature
under
HEERA.
The
credibility
of another University witness, Provost Brian
Copenhazer
was
also
handic~pped by
his
inability
to distinguish
between
collective
bargaining
rights for faculty
(which have been
deemed
appropriate
by
the Legislature)
and coverage
for disputed
titles.
s
testimony
was
also
extremely vague,
.consisting
primarily of unqualified opinion testimony
and
broad
generalizations, based
upon
very limited experience
from
the
distant past.
60
Dr.
Ellen
Switkes' testimony
was
limited
to
mentoring
issues
and
University
processes
.
15
To
the extent
that
Switkes
offered
expert
opinion testimony
in
other areas,
that
testimony
is
not
credited.
Her
opinion testimony
within her area of
expertise
is
of
limited
value
because
it
often
seemed
to
be
based
on
uninformed
speculation.
For
example,
she
testified
that
the
use
of
APM
140
was
detrimental
to
the
student's
welfare
when
compared
to
11
the student
complaint
policy."
But,
when
she
was
asked
to
give
a
brief
summary
the
difference
between
APM
140
and
the
student
complaint
policy,
she
was
unable
to
do
so,
stating:
"I
can't
because
I
don't
know
anything
about
the student
complaint
policy
except
to
refer
people
to
it.
11
The
testimony of
Dean
Kathleen
Komar
was
generally credible,
except
in
one
major
area.
Her
credibility
about
the
series
of
newspaper
articles
in
which she
sparred with
Petitioner
was
damaged
because.she
was
doing
just
what
she
was
accusing the
union
of
doing
(i.e.,
taking reactionary
and
rigid positions
without having
all
the facts}.
Many
student
employee
witnesses
were
asked
a
lengthy
series
of yes
or
no
questions·about
their
educational objectives.
For
example:
Q
Is
one
of your educational objectives to learn
whether
or not
you want
to teach
after
you
graduate with your
Ph.D.?
15
Limitations regarding her area of expertise
and opinion
testimony did not limit her testimony in other areas as
a
percipient witness.
61
Q
Is
one
of
your
educational
objectives
in
the
------Ph.D.
program
to learn
research
methods and
skills
in
your
discipline?
Q
Is
one
of
your
educational
objectives to
develop your
communication
skills?
Q
Is
one
of
your
educational
objectives
in
the
Ph.D.
program
to establish
mentor
ionships with
0
one
-or
more
faculty
members?
- --------.Q9 --~Ir=s
one
of
your
educational
objectives in the
Ph.D.
program
to
have
as
much
time as
possible
to
spend
on
your
graduate
work?
While
these questions are appropriate,
particularly
on
cross-examination,
I
found
the
answers
somewhat
less
persuasive
than those of individuals
who
were
simply asked
to
formulate,
in
their
own
words,
their
educational
objectives.
were
also
a
number
of percipient
witnesses
whose
testimony
was
particularly
credible
on
aspects of issues
in
this
dispute.
They were Deans
Duggan
and
Upham;
Provost
Wulbert; and
UAW
Representatives
Massenburg and DeProsse.
Finally, the University argues
that Petitioner's
portrayal
of the evidence should be
discounted because "a
large percentage
of the
UAW'
s
student
witnesses.
are
union
activists
as
opposed
to
disinterested third part
11
It is
not
surprising that
a
union
of student
employees would
call
as witnesses
a
number
of union
activist students.
It
can hardly
be
said that the University
62
chose
to
call
only
third
party
disinterested
administra_tors.
That
University
argument
rejected.
DISCUSSION
Indicia
of Student
vs.
Employee
Status
Before
discussing application
subsection
(f)
to
the
facts
this
case,
I
want
to
dispose of
three issues
upon which,
the
parties
offered
argument.
The
first
whether
the
facts
are
more
an
indicia
of
status
as
a
student
or
as
an
employee.
16
It
is
clear that
the individuals
at
issue are both.
They
possess
all
the
attributes
of both students
and
employees.
The
test is
not whether
they
are
more
like
students or
employees,
but
rather
a
balancing of the value
to
educational
objectives against the
value of
services
rendered.
My
analysis, therefore,
does
not
focus
upon,
nor
do
I
try
to
decide,
whether
student
employees
are
more
1
students or
more
like
employees.
UC
Berkeley Precedent
The
second
issue
whether
I
should
draw any
significant
conclusions
from
events
at
UC
Berkeley.
Both
parties
offered
evidence
and
made
substantial
arguments about
the significance of
bargaining events
and
issues
at
UC
Berkeley.
Each
side
draws
different
conclusions
from
this
evidence. Although
the record
reflects
numerous
similarities in the dut
and terms and
16
In the
UCSD
hearing, the University argued
that the
s
supported
a
finding of
11
studentness
11
among
the individuals inquestion.
It
has
now
adopted the
UCSD
standard that indi
a
of
student or
employee
status are relevant only to the extent they
reflect
upon
educational objectives
and
service to the
University.
63
conditions of
employment
between
the
UC
Berkeley
unit
and
the
one
sought
at
UCLA, I
place
little
reliance
upon
the
evidence
presented regarding
UC
Berkeley.
First,
the
University's
stipulation that
readers,
tutors,
and
acting
instructors at
UC
Berkeley
are
employees
under
the
Act
is
not binding
on
the
University
at
UCLA. I
have
previously ruled
that
absent
a
new
stipulation to
the contrary,
each
petition.should
be
judged by
the record
established
at that
location.
The
UC
Berkeley
stipulation
was
a
tactical
decision
based
upon
the
UC
Berkeley
record.
It
was
not
an
admission, nor
is
it
binding
on
petit
Similarly, the
UC
Berkeley
Interim
Agreement
is
not
an
admission
that collect
bargaining
is
appropriate
at
UCLA
or
any
other location.
That agreement
did
not
amount
to collective
bargaining
under
HEERA.
It
was
also
a
tactical effort
to limit
liability
in
an
unfair ice
case
and an
effort
to.avoid
further
strikes.
· I
so
place
litt
weight
on
the bargaining occurring
in
the
UC
Berkeley readers,
tutors
and
acting instructors unit.
The
bargaining there
appears
to
be
like
many
other
new
bargaining
relationships.
The
part are struggling with
their first
contract
and
dealing with
new
issues.
There
are also unit
description issues not yet resolved,
which
make
bargaining
particularly difficult. It is
simply inappropriate to
draw any
conclusions
from
bargaining
at
UC
Berkeley, other than the fact
64
that parties
are
engaged
in
a
difficult
first
negot
ions
and
are
currently in
mediation.
third
issue
is
that
both
part
make
incorrect
assumptions about
what
HEERA
presumes.
The
University
argues
that
HEERA's
subsection
(f)
starts
with
a
presumption
that
students are
not
employees.
The
Petitioner
argues
that
the
..
same
statutory
language
presumes
that
some
students
will
be
covered.
HEERA,
however,
makes
no
presumptions
one
way
or the
other.
The
Legislature
clearly
left
that
task to
PERB.
The
Act
simply
offers
criteria
to
be
applied
by
PERB
in
making
its
determination
about
student
employee
coverage.
Analysis
of
Subsection
(f)
Subsection
{f)
calls
for the
application
of
three
tests
to
determine coverage under
HEERA
of student
employees.
The
first
test is
whether
employment
is
contingent
upon
the
candidate's
status
as students.
If
employment
in
a
disputed
position
is
not
contingent
upon
status
as students, then the additional
requirements of subsection
{f) do
not apply
and
student
employees
are guaranteed
rights
under
HEERA.
The
second
test
provides
that
even
if
employment
in
a
disputed position
is
contingent
upon
status
as
a
student,
coverage under
HEERA
will
be .extended
services provided
to the
University
by
the student
employees
are unrelated to the
educational objectives of those student
employees.
The
third test
has
two
prongs.
Under
this test,
student
employees whose employment
is
contingent
upon
their status as
65
students
and
whose
educational
objectives
are
related to
the
services
they
perform
for
the University
may
be
extended coverage
under
HEERA
if
their
educational
objectives are
subordinate
to
the
services
provided
(Prong
One)
and
coverage under
HEERA
would
further
the
purposes
of the
Act
(Prong
Two).
First
Test:
Is
Employment
Contingent
Upon
Student
Status?
With one
exception
I
find
that status
as
a
student
is
a
requirement
for.employment
in
the disputed
titles.
That
exception
is
the
RT/LSC
position.
The
best
evidence
reflecting
whether
employment
in
a
disputed
position
is
contingent
upon
"the
status
the students"
is
whether
non-students
are hired into
the disputed
position.
RT/LSC
positions are
filled
by
both
students
and
non-students.
According
to
Patricia Pratt,
Director
of Student Support
Services, the
program
stopped using the
remedial
tutor
title
specifically
because
it
wanted
to
be
able
to
hire
non-students for the
summer
program.
Although
students
may
receive
a
hiring preference,
this
does
not
amount
to
a
contingent requirement
of student
status.
Therefore, the additional
restrictions
of subsection
(f)
do
not·
apply
and
all
individuals (students
and
non-students)
employed
as
RT/LSCs
are
employees under the
Act.
Petitioner also
argues
that
all
remaining
classifications
are also staffed
by
non-students. This argument
is
rejected.
The
evidence
reflects
a
limited
number
of non-student readers
serving in the position after
they dropped out of school, but
66
prior
to
the
paperwork
catching
up
to
them. Thus,
they
were
never
hired
into
the
position
as
non-students.
Tutors
are
allowed
to
remain
in
the
position for
a
set
length
of
time
after
they graduate
or
take
a
semester
off.
At
that
point,
technically
speaking,
non-students
may
be
serving
in.
the disputed
positions.
However,
they
would
not
be
in
the
posit
if
they
had
not
been
students
at
the
time
they
were
hired.
This evidence
dramatically
different
from
UCSD
where
individ~als
who
were
not
students
and had
never
even been
students
were
routinely hired
into
the disputed
positions.
Petitioner
argues
that
non-students
so perform
GSI
and
GSR
duties
and
cites
the
use
of post
docs,
lecturers,
and
research
assistants to
fill
in for the disputed
titles
when
the
need
ses.
There
is,
however,
a
long
established
overlapping
of job
responsibilities
a:mong
numerous
Unive.rsity
employees.
Even
other
non-students
perform
duties similar to
GSis and
GSRs,
they are
doing so
clearly
employed
in
a
different position,
usually
at
a
different rate
of
pay and
with
differing levels
of
responsibilities.
The
most
obvious
example
of
this
pract
is
the
use
of faculty to
perform grading, teach lab sections,
and
lead discussion sections in
courses
where
enrollment
is
small.
The
record
is
clear that
the University non-students such
as post
docs
or lecturers to
perform the functions of teachers
assistants
when
students are not available to
fill
the
University's needs.
However, when
such non-students are hired
into those positions they are not hired as teachers assistants.
67
Second
Test:
Are
Services
Related
to
Educational Objectives?
In
contrast
to
the findings
in
UCSD, I
find
here
that
the
services
provided
by employees
in
all
the disputed
titles
are
ated
in
some
manner
to
the educational
objectives student
employees.
In=-==
I
held
that
services
provided
by
readers
were
unrelated
to
their
educational
objectives.
Here,
the record
includes reader witnesses
who
used
their
positions to build
relationships
with
faculty
and
incorporated
their
grading
skills
into future teaching plans
to
a
greater
extent
than
to
UCSD.
Although
the
relationship
is
very marginal,
it
cannot
be
said,
based
upon
this
record, that.
employment
as
a
reader
at
UCLA
is
unrelated
to
educational objectives.
Third Test:
Are
Educational Objectives Subordinate
to
Services
(Prong
One)
and
Would
Coverage Under
the
Act
Further the
Purposes
of the
Act (Prong
Two)?
In Regents,
the
Supreme
Court
reviewed
HEERA
legislative
history,
noting
that
the Legislature
had
created
a new
standard
for
determining
this
issue, rather
than follow National
Labor
Relations
Board
(NLRB)
precedent.
The
court believed that·
subsection
(f)
was
the Legislature
1 s
attempt
to craft
a
more
comprehensive
alternative to either
a
"primary purpose"
test
or
a
test
focused
instead
on
the value of the services
performed.
The
court believed that in crafting
HEERA,
the Legislature
did not focus
solely
on
the primary purpose
for the
employment
or
on
the value of services performed. Instead, subsection (f)
requires that in cases
where employment
is
contingent upon
68
student
status
and
the student
employee's
educational
objectives
are
related
to
the
services
performed,
PERB
·must
balance those
educational
objectives against the value of the
services
performed.
In determining
the educational
objectives
of the student
employees,
the court
made
it
clear that
PERB
was
to
focus
on
the
personally held subjective perceptions
of
the student
themselves.
Once
the
subjective educational goals of the student
employees
are
determined,
they are
then
weighed
against the
objective value of the services
performed:
...
to
see
if
the
students'
educational
objectives,
however
personally
important,
arenonetheless subordinate
to the services
they
are required
to
perform.
Thus,
even
if
PERB
finds
that
the students
1
motivation
foraccepting
employment
was
primarilyeducational, 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 obligations.
[Fn.
ommitted; Regents
at
p. 614.]
Thus, even
if
all
the student
employees
concurred
that their
purpose
in taking the job
was
to further
their
educational
objectives, the
Board
could determine
that
those educational
objectives
were
subordinate to the value of the services
provided. For example,
in
Regents
there
was
evidence
that the
interns
and
residents
chose those positions in order to best
fulfill
theil:
per.sonal.,.educational:.
-obje.ct-ive-s .17.
Yet,· the
Board
17
The
Administrative
Law
Judge
(ALJ)
in that case noted:
[A]ll housestaff witnesses
testified [that]
the educational objectives in choosing
69
still
found
that
the educational
objectives
were
subordinate
to
the valuable
patient
care
services
provided.
Once
the
Board
determined
that
the educational
objectives
.were
subordinate
to
the
services
performed,
the
Board
had
to
determine
if
it
would
further
the
purposes of
the
Act
to
extend
coverage
to housestaff.
The
Board.reviewed
the
purposes
of
the
Act and
concluded
that
the extension of
collective
bargaining
rights
to housestaff
would
give
them
a
viable
mechanism
for
resolving the
differences,
and
coverage
would,
therefore,
foster
harmonious and
cooperative labor
relations
between
the
University
and
housestaff.
In
upholding
the
Board
decision, the court
specifically
rejected
the
University's
claim
that
its
mission
would be
undermined by
bargaining
on
subjects
tied
to
the educational
aspects of the residency
programs
.
.
This
"doomsday
cry"
seems somewhat
exaggerated
in light
of the fact that
the
University
engaged
in
meet-and-confer
sessions with
employee
organizations
representing housestaff
prior to the
effective
date of
HEERA.
Moreover,
the University
1 s
argument
is
premature.
The
argument
basically
concerns
the appropriate
scope
of representation
under
the Act.
(See
section
3562, subd.
(q).)
Such
issues will
undoubtedly
arisespecific factual contexts in
which one
side
wishes
to bargain over
a
certain subject
and
the other side
does
not.
These
scope-of-
and
participating in
a
residency
program
are
to receive the best medical
training
and
qualify for specialty or subspecialty
certification.
[Regents
at p. 640,
fn. 14.]
70
representation issues
may
be
resolved
by
the
Board
when
they
se, since
it
alone has
the
responsibility
11
[t]o
determine
in
disputedcases
whether
a
particular
item
is
within
or
without
the
scope
of
representation."
(Section
3563,
subd.
(b)
.)
[Regents
at
p.
623,
emphasis
in original,
fn. omitted.]
The
court
also rejected
the
University's
claim
that
extending
coverage
could
lead to
strikes
and
was
inappropriate
due
to the
brief
tenure of
housestaff.
The
University
also
argues
that
permitting
collective
bargaining
for housestaff
may
lead
to
strikes.
However,
it
is
widely recognized
that collective
bargaining
is
an
alternative
dispute
resolution
mechanism
which
diminishes
the
probability that
vital
services will
be
interrupted.
(See San
Diego
Teachers
Assn.
v.
Superior
Court, supra,
24
Cal.3d
at
pp.
8-9, 13.)
Finally, the University
argues
that
the
brief
·tenure
housestaff's relationship
with the
University
undermines
the conclusion
that
coverage
would
further
the purposes
of the
Act.
The
University
acknowledges
that
many
other individuals
whose
relationship
with
the
University
is
of short duration
have been
accorded
employee
status
with
full
bargaining
rights.
Housestaff should not
be
treated
differently.
[Regents
at
pp. 623-624.]
In the
AGSE
case,
originally filed
in
1983,
the
petitioner
sought
to represent
GSis and
GSRs, among
others.
The
Board had
a
difficult
time applying the facts
of the
AGSE
case
to the
test
set forth in
Regents.
First,
the
Board
redefined the
definition
of educational objectives.
The
Board minimized
the $Ubjective
view
..
.the ._student.
.empl.oy~eSr· ,,added ~t-ke
-additional- opinions and
objectives of professors,
and analyzed
them
within the
framework
of the University's graduate program. Instead of weighing the
personal educational objectives of the student employees against
71
the value of
the
services
rendered,
the
Board
stated
the
issue
as
follows:
The
issue in
this
case
is
how
the
academic
considerations
of
student,
faculty
and
administration, are to
be weighed
against
thekind
of
services
the student
is
performing
within
the
context of the
University's
entire
graduate
student
program.
[AGSE
Bd
Dec.
at
p.
39.]
The
Board
also
noted
that
the
test
it
was
supposed
to
apply
required the
Board
to
balance
a
seemingly
subjective
element
(personal
educational objectives) against
an
objective
one
(the
value
of the
services
rendered).
The
Board
therefore
felt
it
was
necessary
to
"recalibrate
the
scale.
11
Instead of
looking
at
each
side of the
scale
and weighing
the
interest
(academic and
employment)
independently,
a
more
helpful
approach
is
to
examine
how
the
two
interests
inter-relate
and
determine
which
side
ultimately prevails
when
the
two
interestsconflict
...
by examining
the balancing
test
from
this
perspective
we
avoid having
to
weigh
subjective against objective factors in
reaching
a
conclusion
...
Weighing
the
facts of
this
case
in
our
newly
calibrated scale,
we
find
that
in cases of
conflict
between
the
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.
[Id.
at
pp. 47-
48.]
The
Board
then reviewed the
second prong of the
test, i.e.,
whether granting
employee
status
would
further the purposes of
the Act.
It
concluded:
Thus, the academic nature of the
GSI
and
GSR
appointments, which promotes
a
free exchange
72
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
...
(AGSE
Bd
Dec.
at
p.
54.)
The
Board
noted
that
while
the
ALJ
focused
upon
the
development
of
harmonious and
cooperat
labor
relations
between
the University
and
its
student
empl'oyees,
he
did not address the
academic
nature of the professor student
relationship. Citing
the
NLRB's
discussion labor policy St.
Clare Hospital
and
Health Center
(1977) 229
NLRB
1000
[95
LRRM
1180],
the
Board
held
that
the
importance
of the
mentor
relationship
between
professors
and
their
students
in
the
pursuit
of educational excellence
cannot be
understated.
The
Board found:
The
record
replete
with testimony
from
both
professors
and
graduate students
which
describe the professor-student
assistantrelationship
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
others' written
work.
[AGSE Bd
Dec.
at
p.
50.]
The
Board
feared
that:
Collective bargaining
would emphasize
economics, which would become
the primary
goal
at the
expense
of the
academic
goals of
...
the,.GSL
.
.and
..
,,GS.R-,prc@grams..
[Id
;·-at
·•p. · 51.--]
Focusing
specifically
on
the
GSis,
the
Board
stated:
Although
it
could be argued
that includingGSis under the coverage of
HEERA
would
promote harmonious and cooperative labor
73
relations
among
the
GSis,
there
no
evidence
that collective
bargaining
would
encourage
the
pursuit
of excellence
in
teaching.
[AGSE
Bd
Dec.
at
p.
52.]
The
selection
process
at
Berkeley involves
a
mutual
process
of
accommodating
the
choices of
professors
and GSis.
The
Board
found
that
GSis
based
their
choices
on
their
desire:
...
to learn
a
particular
subject,
refresh
their
background
in
fundamentals,
or learn
a
different
approach
or
perspect
to
a
topic
through
a
particular
professor or
course.
This
selection
process
emphasizes
the
academic
nature of the
GSI
program.
(Id.
at
p.
53.]
The
Board found
col ive bargaining
would
not
promote
harmonious and
cooperative
labor
relations
among
GSis
and
GSRs
because
the
continuous
movement
among
graduate
students
and
out
of these
positions.
The
Board
felt
graduate
students
would
be
spl into
two
groups; those
in
bargaining
unit positions
and
those
who
are not.
Membership would change
frequently,
depending
upon
the
availability
of
appointments, causing
instability,.
The
final basis for the Board's decision
was
its
bel that
it
is virtually
impossible
to'separate
academics
from
economics,
there
,
involving the
parties in
bargaining over
current
academic
practices.
On
appeal, the court in
AGSE
held
that the Board's
"recalibration of the scales"
had so
distorted the
first
prong
of
subsect
.
.(
fJ
.
that. the
PERB's
test contradicts Regents'
test
because
it
does not examine
in aggregate the
educational objectives of the students
and
compare them with the aggregate of the
services rendered. Instead
it
extracts those
74
services
which
conflict
with
educational
objectives
and examines
how
conflicts
areresolved.
PERB
lacks the
authority to
change
the
Regents
test.
[Citation.]
PERB
should
have
been
looking
for
a
better
way
to
evaluate
student's
educational
objectives
and
to
compare them
with
the
services
they
performed,
not
for
an
excuse
to
"avoid having
to
weigh
subjective against
objective
factors."
PERB's
distortion
of the
first
prong
renders
suspect
its
conclusion
that
GSI
and
GSR
educational
objectives are
not subordinate
toservices.
. [AGSE
at
pp. 1142-1144.]
Instead, the court
laid
out
the proper
test
as follows:
"Case-by-case
analysis"
would
call
upon
PERB
to
consider
all
the
ways
in
which
GSI
and
GSR
employment
meet
educational objectives of the
students
and
all
the
ways
in
which
the
employment
provides
services
and
to
compare
the value
and
effectiveness of the
employment
in
meeting
the students' educational
objectives
with value
and
effectiveness
of the
employment
in
providing
services.
PERB,
with
its
.expertise,
would
then
make
a
judgment
about whether
the
employment was
more
valuable
and
effective in
meeting
educational objectives or in
providing
service to the University:
whether
the
"educational objectives are subordinate
to
the services" the students
perform.
(Id.
at
p.
1143, emphasis
in original.)
The
court did
uphold
the Board's decision,
however, because
found
that
the
Board
appropriately applied the
second prong of
the. test,_
..
and
...
that the
..
.Boa.rd'"s.,de.c,isi0n«was··supported by
substantial evidence.
The
court relied heavily
on
the testimony of
Dr. Robert
Bickel, that collective bargaining would
interfere with complex
75
and
fragile
mentor-student
relationships,
could
do
serious
damage
to
the
stature
of the
itution
and
feet
its
ability
to
attract
and
retain
the
most
able
and
productive
faculty
and
graduate
students.
The
Board's
finding
was
also
supported
by
testimony
about
collective
bargaining
by
involving
Dutch
graduate
students.
Both
the
Supreme
Court
in
Regents
and
the
Court
of
Appeal
in
AGSE
re erated
that
the application
of subsection
(f)
requires
a
case-by-case
analysis
of the
unique
facts
presented
in
each
case.
Prong One--Are
Educational Objectives Subordinate
to
Services?
In
this
next
section
I
will
discuss the
first
prong
subsect
(f),
i.e.,
whether
the educational objectives
student
employees
are subordinate
to the services
provided
to the
University.
I
start
with
GSRs,
then discuss
all
the other
disputed
titles
(except
tutor
supervisors) as
a
single
group.
GSRs
considering the
ways
in
which
GSR
employment meets
the
educational objectives students
compared
to
the
ways
the
employment
provides services to the University,.
I
find that
the
educational objectives
GSRs
are
not subordinate
to
the
services provided
and
therefore,
coverage under the
Act should
be
denied.
Employment
as
a GSR
meets
practically
every educational
object that students possess.
Most
GSRs
are being funded
to
perform
virtually the
same work
that they
would have
to perform
as students, regardless whether they were being paid.
The
76
role
of
the
faculty
member
in
relation to
the
GSR
is
more
like
a
patron
than
a
typical
supervisor.
As GSRs,
students are
not
simply
learning
skills
that will
be
helpful
to
them
in
career
choices.
They
are learning
the very
skills
essential
for
them
to
complete
their
ssertation
and
obtain
their
degree.
In
contrast to
all
other
academic
apprentice
appointments,
it
would
be
virtually
impossible
for
an
outside observer
to
determine whether
the
GSR
is
performing
paid
duties
11
0n
clock" as
a GSR
or
rather
is
simply performing
scholarly research
as
an
unpaid
student.
Nor would
it
even
be
possible for
most
GSRs
to
make
the
distinction
in
any
way
other
than
artificially
for
purposes
of
a
time/pay
voucher.
Unl GSis
who
can
easily
distinguish
between
unpaid time as
a
student
and
paid
time
teaching
a
course
or correcting
papers,
GSRs
perform dut
s
leading
directly to
their dissertation
and
degree
and
receives
pay
as
a
means
of support
for
a
fungible portion of
that
work.
Secondary
educational objectives are also
met
perfectly
through
employment
as
a GSR. GSRs
regularly
co-author research
papers with
their
faculty supervisors, are often sent to
conferences,
have
the opportunity
to establish
networks with
professional contacts
and enhance
both
their
curriculum
vitae
and
future
employment
opportunities.
Unlike
all
other
academic
apprentice appointments, the value
of
GSR
positions accrue primarily to the
GSRs
and
their
educational objectives.
The
value of the services received
by
the University
is
not nearly as significant.
77
To
the extent
that
hourly
GSRs
provide
research
support
to
faculty,
they
do
provide
service to
the University.
That
is
an
extremely small
portion
of
GSR
funding,
however,
and
it
is
not
reflective
of
the
value of
GSR
services to
the University
in
this
balancing
test.
Petitioner
argues
that
GSRs
are hired to
fulfill
the
terms
of research grants
awarded
to faculty
and
that
these
grants are
essent
to
the
University's
research
mission
and
the
career
of
the
principal investigator.
While
there
is
some
support
this
argument,
the
weight
of
evidence
in
the
sting
record
is
that
one
of the
primary purposes
of
seeking
grants
is
to
provide
support
for students
and
to create
a
vehicle for
their
dissertation
research.
At
least
one
professor
seemed
to
be
baffled
by
questions
about
hiring
non-students
to
perform
GSR
work,
because
the
whole
point of the
GSR
work
is
to benefit
the
GSRs.
This
contrasts
with
GSis,
for
example, where
the
main
pur12ose
of
their
employment
is
to
assist
in the undergraduate teaching mission of
the University.
Pet
ioner also
argues
that
the services
provided
by
GSRs
generate
a
substantial portion of the University's essent
revenues. Research
grants usually include several
components,
including
a
portion of principal investigator's salary
and
a
huge
portion for University overhead. According
to the
Petitioner, the intellectual labor of the
GSRs
fuels the grants.
While
the
GSRs no doubt play an important role in University
78
research,
that
argument
is
akin
to
the
tail
that
wags
the
dog.
The
weight
of
evidence
in
this
record s~pports
a
conclusion
that
the research grants
support
the
GSRs
rather
than
vice versa.
I
therefore
conclude
that
services
provided
to
the
University
are
subordinate
to
the educational
objectives
of
most.
GSRs.
The
only
exceptions·to
this
conclusion
might be
the
limited
number
of hourly
GSRs
not
working
in
their field
of
research.
For
reasons
articulated
in
the
Prong
II
section
of
this
decision,
however,
I
exclude
those
individuals
from
coverage.
as well.
GSis,
Special
Readers, Readers,
RT/LSCs
and
Tutors
Although
there are
some
major
differences
among
the
remaining
classifications,
there are also
many
similarities.
On
balance
there are
enough
common
factors to
deal with
them
as
a
single
group.
Most
individuals in
these
classifications
are
drawn
to
their
jobs
for
economic
reasons, seeking
income
and
reduced
fees.
Most
find the jobs
significantly
more
convenient
and
ss disruptive to
their
educational
program
than
other
available
employment
off
campus. The
jobs
typically
so allow
student
employees
the opportunity to better position
themselves
for
whatever next steps they
may
seek.
GSis
gain valuable teaching
skills
which
will
be
beneficial
to
them
after
they complete
their
degree programs, leave
UCLA
and
seek
employment
elsewhere.
While
there
was
conflicting
testimony
about the value of teaching experience
compared
to research
experience
when
seeking future
employment
in higher education,
79
just
about
every
GSI
indicated
they·were
placing
their
GSI
experience
on
their
curriculum
vitae,
which
indicates
it
given
value
in
the search
for
employment.
Undergraduates
may
gain the
distinction
of
being
selected
for
an
academic
apprentice
position
which
may
prove
valuable
in
applying
for
graduate school.
Readers
may
become more
proficient
at
the grading
proces~
and
tutors
can
also
improve
their
teaching
and communication
skills.
All
positions
provide the opportunity
to
review
academic
material within
a
chosen
eld
and
offer
an
opportunity
to
gain
skill
working
with
other students.
Individuals in
all
the
titles
gain
exposure
to faculty in
varying degrees.
Although
tutors,
readers
and GSis
teaching
a
course have.only
minimal
exposure
to faculty, section leader
GSis
and
special readers
typically interact
with
their
supervisory
faculty
member
weekly,
not
more
often.
For
graduate students
trying to
assemble
a
dissertation
committee,
this
provides
an
opportunity to
relate
to faculty
members
in
.a
manner
unl
other
students.
It
not only
distinguishes
them
in the
eyes of the
faculty, but
it
gives students insight into
whether
particular
faculty
members would
make
good committee members.
Other than
this potential
help
in
assembling
a
dissertation
committee, however, employment
in the disputed
titles
does very
little
or nothing
at all
in
meeting the
most fundamental
educational objective
all
student employees, which
is to
complete
their
degree program. In
all
but rare circumstances
it
80
satisfies
no
coursework
requirements.
None
the
titles
will
significantly
increase research
skills,
nor
will
they provide
an
opportunity
for
any
original
research.
It
is
not
the
norm
for
student
employees
to
develop mentor
student
relationships
based
solely
upon
employment·in
these
disputed
titles~
That
depth
of
relationship
is
usually reserved
for
a
student's dissertation
chairperson. Occasionally,
.it
involved
other individuals
on
a
dissertation
committee.
Student
employees
no
doubt
learn
the
subject matter
better
each time
they teach
it.
Numerous
witnesses, both
faculty
and
student
employees,
testified
that
the best
way
to learn
a
subject
thoroughly
is
to
teach
it
to others.
Student
employees
in
these
titles,
however,
are
typically
teaching, reading
or tutoring
subjects
where
they already
have
a
great
deal of
expertise.
Although
there are
some
exceptions,
in
most
situations the
individuals
would
not
have been
selected
without
that expertise.
The
educational level at
which
they are teaching, reading,
or
tutoring,
is
also usually significantly less sophisticated
than
their
own
coursework and
research. Individuals preparing for
qualifying
exams
could,
no
doubt,
benefit
from
teaching the
subjects of
their
exams.
In
some
cases,
however,
individuals
with
that
motivation
were
actually
screened out of
employment
possibil ies.
The
writing of
a
student employee's
dissertation is
not
fostered at all
by employment
in these
titles.
Quite the
opposite
is true.
Time
spent teaching an undergraduate course
is
81
time
necessarily
taken
away
from
one's
dissertation,
as
would
any
other
employment.
The
extensive
efforts
made
by
the University
to re
ct
GSI
hours
to
20,
as
compared
to
GSR
hours
which
everyone
acknowledges
exceed
·20
per
week,
is
an
implicit
admission
that
GSI
employment
cuts
into
the
time
available.
for
the student
employee's
own
research
and
dissertation
work.
Employment
in
these
titles
does
not
develop
or
enhance
writing
skills,
unles_s
perhaps
the student
employee
is
teaching
or tutoring
a
composition course.
Nor
does
employment
in
the
titles
advance
the
publication
of papers,
either
individually or
with
faculty.
Witnesses
did
not
fill
the record with
stories
of
joint
publications
between
supervising
faculty
members
and
student
employees
in
the
titles,
as
was
common
with
GSRs
and
their
supervisors. Neither
does
such
employment
promote
attendance
at
conferences
for the presentation
of papers.
Such
publications
and
presentations are usually reserved for
student's dissertation
and done
jointly
with
a
dissertation
chair or
research supervisor.
inadequacy of
employment
in these
titles
to
meet
educational objectives
is
again
vividly
demonstrated
by
a
comparison
to
employment
as
a GSR. GSRs
are paid to
complete
their
degree program.
They
learn research
skills directly
related to their
body
of original research for their
dissertation.
They
select
thei:r topic,
do
their
research,
form
their
committee, write their dissertation,
and then deferid
it,
all
within the aegis of
GSR
employment.
As
well as directly
82
supporting
the
completion
of
the
GSR 1 s
degree
program,
the
employment
also
meets
almost
all
other
educational
objectives.
GSRs
gain
demonstrable
skills
of
research
and
writing.
Their
curriculum
vitaes
are
developed through
the publishing of papers,
both
jointly
with
faculty
supervisors
and
individually,
as
well
as
presentations
of the research
at
conferences.
Finally,·
GSRs
enjoy
a
greater
opportunity
to
develop
strong mentor/student
relationships
with
faculty
supervisors,
who
more
often
than not
are also
the
GSRs
dissertation
chair.
Almost
100
percent
a
student's
educational
objectives
ca~
be
met
through
employment
as
a GSR.
In
stark contrast,
it
is
signi ly less
than
a 50 50
proposition,
at
best,
for
1
other disputed
titles.
Since
readers
and
tutors typically
gain
far less
teaching experience
and have
less interaction
with
·
faculty,
employment
in
those
titles
provide
even
less
opportunity
for
meeting
educational objectives.
While
not
true in
every
case,
a
fairly
accurate generalization that
GSRs
are paid to
educate themselves, while
GSI
(and
other disputed
titles)
are
paid to
educate undergraduate
students.
The
limited
value
that
employment
in these
titles
has
in
meeting
educational objectives
must be
balanced against the great
value services provided
to the University
by employees
in
these
t
les.
The
University could not continue in
its
current structure
without the services of the disputed
t The
evidence
is
clear that there are simply too
many
undergraduate students and
83
too
few
faculty to
provide
a
first
class
education without
the
services of
GSis and
readers, for
example.
The
University
could
not
accomplish
its
mission
of
undergraduate
education without
a
course
structure
providing
for
a
combination
of
large
lecture
classes
and
smaller
section
meetings.
Similarly, faculty
could
not
assign the
same
kinds
of valuable
written
course assignments
without
readers
to
assist
with
the grading
in larger
courses.
Assignments
would have
to
be fewer and
of
a
different
type
(e.g.,
multiple
choice
and
graded
mechanically).
Undergraduates
would
also
receive
significantly less
persona1
attention
than they
do
now.
GSis
are
one
of the
main
sources
of contact
between
the University
and
undergraduate
students.
In
some
significant fields
they are
literally
the only
contact
between
the University
and
the
undergr~duate
student.
In almost
all
situations,
it
is
the educational
needs
of
undergraduate
students
which
determine
the
staffing
requirements
for
the disputed
positions.
The
University
does
not determine
how
many
graduate students
need
this
experience
offered
through
employment and
then find positions for
them.
Rather,
it
determines the
number
undergraduate
courses.that
need
to
be
staffed
and
then finds
an .appropriate
number
of student
employees
to those vacant
positions.
It
also appears
that the value of providing graduate
students with
this rich training experience does not
seem
to
be
as high
a
priority in departments which
are rich in
GSR
funding
and which have small or non-existent undergraduate enrollments.
84
An
exception
to
the
practice
of determining
staffing
by
undergraduate
needs
is
the
Collegium program. There
the
motivation
for
the
program
is
clearly
to
give teaching fellows
the opportunity
to
develop
and
teach
their
own
course.
However,
the
Collegium
is
a
good example
for application of the
Supreme
Court's analysis in
Regents.
[E]ven
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 determinewhether
the students'
educational objectives
take
a
back
seat to
their
service
obligations.
[Regents
at
p.
614;
fn.
omitted.)
.
Here,
the University
argues
that
the value of
services
received
by
the University
is
not
great.
According
to
the
University:
There
is
no
evidence
that
the
undergraduateseminars provided
by
graduate students
participating in
one
of
Collegium
programs
are of
any
great
value
to the
overall
curriculum provided
by
the
University.
Or
course, considering the
thousands of courses
offered
each
year,
it
could
also
be argued
that
no
single
course
is
of
any
great value
to the overall
curriculum provided
by
the University.
That,
however, would
probably
be
hotly contested
by
the
undergraduate students taking the course
who
have
paid
tuition
and
are counting .on
the.,,QGUFSe.--eFedit •·-they
··receive· toward
their
own
graduation.
-Regardless of the motivation for teaching
a
Collegium
course, the teaching fellow has responsibility for all aspects of
85
the
course,
including
designing the
curriculum,
selecting
textbooks,
assigning
coursework,
grading
assignments
and
developing
and
grading
exams,
with
as
much
responsibility
as
any
other
new
faculty
member.
While
teaching
in
the
Collegium
may
greater
experience
to
the teaching fellow,
and
thus
be
of
more
value
to
the
educational
objectives
than
a
typical
GSI
assignment,
the service
provided
is
also
significantly
more
valuable
to
the
University's
teaching
mission.
There
are
few
services
that
would be
of
greater
value
to
the University
1 s
teaching mission than
having
responsibility for
teaching
an
entire
course
to
undergraduate
students.
What
could
be
of
greater
value
to
the University
1 s
teaching
mission?
The
University also
specifically
downplays
the value of the
tutoring services offered.
According
to
the University:
There
is
no showing
that tutoring
is
essential to
the
University's educationalmission.
The
tutoring
programs
dQ
not
provide
basic
instruction,.but
merely
providesupplemental help
to
those
who
think they
need
it.
This
position
is
contrary to material published
by
CTS
and
AAP,
which emphasize
valuable
role
the
programs meeting
the
needs
of students.
Furthermore,
when
an extremely
.disproportionate
number
tutors are assigned to the special
tutoring.
ne.eds,
.of
..
4.00
...
UCLA..
at-hletes;•"
sd:.mp:l:y
not credible to
argue
that services provided to the athletes are of less value
than the educational benef
s
derived by the tutors themselves.
The
tutors, all
top students in their field, assist the athletes
86
with
their
studies,
notes
for
them
when
athletes
are
gone on
sports
trips,
and even
personally
take
steps
to
ensure
that
athletes
do
not
miss
the
tutoring
sessions. Clearly, the
greater
value
is
received
by
those
delivering
the
services,
rather
than
by
those
giving the service.
This
pro.gram was
.not
established to
cater to
the educational
objectives of the
tutors.
It
was
established
to foster
the
University's
athletic
program,
particularly
in large
cash
generating
sports.
Any
benef
derived
by
the
tutors
incidental to
the
services
performed.
18
The same
can
be
said
of the
AAP. No
doubt
AAP
tutors
reap
benef
from
their
jobs.
They
learn
from
their
teaching
and
gain the
satisfaction
supporting
a
program
they
fundamentally
believe
in
at
a
time
the
program's goals are
being
severely
tested.
But
these
tutors
are
not chosen
-so
they
will
benef
educationally
from
the
AAP.
Quite
the contrary
is
true.
They
are
chosen
as
role
models
for
AAP
tutees
because
they
have
successfully navigated University
environment.
Any
value
they receive
is
clearly
subordinate
to the services
they provide
the
AAP
and
UCLA's
.affirmative action
commitment.
The
University seeks
to
minimize
the value of readers
by
pointing out
that,
11
the
instructor in
charge
of
a
course
is
18
This should not be
read as
critic
of
UCLA's
athletic
tutorial.
All the evidence indicated
it
is
an
effective
and
laudable
..
progr.am."to
..
ass,i-s.t
-the :v:e-ry«raealist·ic.,special needs of
athletes
who
are often traveling
away from
their
courses
on
University sponsored sports events and otherwise devotingenormous
personal time and energy
to the University through
its
various sports programs.
The
University
1 s
credibility vanishes,however, when
it
argues this is
a
program
offering greater value
to the tutors than to University.
87
responsible
for
determining
the
grade
of
each
student
in
course,"
and
that
the
services
could
be
provided
by
other
sources:
To
begin with,
the
course
instructors
could
evaluate
all
their
student's
work.
Just
as graduate
student's
testified
that
their
ability
to
evaluate
or
11
grade
11
improved
with
experience
[c
ions]
it
would
be
expected
that
the
course
instructor
would
be
significantly
more.
efficient
in
accomplishing
these
grading
responsibilities.
However,
the
University's
argument
that
professors
could
suddenly handle
all
the
grading
because
they are
more
efficient
is totally
devoid
of
credibility,
and
completely unsupported
by
.the
record.
The
University's
most
consistent
argument
for
all
the
disputed
titles,
however,
is
that
it
could
replace student
employees
with non-student
replacement workers
in
a
more
educationally
effective
and
cost
effic
manner.
In support of
this
argument,
the University offered
numerous
witnesses
who
testi
that there
was
a
large
candidate pool
of potent
workers
in the
Los
Angeles
area
who
would be
available to
perform
the
work
currently
done
in
the disputed
t
les.
University
argues
that:
(1)
it
would be
cheaper
to
use
non-students;
(2)
non-students
would
perform
better
as teachers
because
their
primary focus
would
not
be on
completing
their
education. as.,is,.current
,.t,he--.oase--with
g·raduate··s-tudents, but
rather their
primary focus would be on
their
teaching
assignments; and
(3)
non-students could be
selected based solely
on demonstrated teaching skills rather than on academic standing.
88
Thus,
the University
argues
that
it
could
accomplish
the
work
more
cheaply
and
skillfully
by
not using
student
employees.
According
to
the
University,
this
shows
that
its
main
interest
is
not
in obtaining these services in
the
most
.effective
and
cost
efficient
manner.
Rather,
it
is
most
sted in
providing
-
important
training
experiences
for
graduate
students.
Therefore,
the University
claims
it
reaps
little
value
from
the current
pract
In
this
UCLA
decision,
I am
dealing
with
this
argument
differently
than
I
did the
UCSD
decision
for
two
reasons.
First,
based
on
the
UCSD
record,
I
was
unconvinced
that
a
candidate
pool
existed
from
which
UCSD
could
draw
potent
replacement workers.
Thus,
there
was
no
need
to
deal with
the
University's
claim
in
any
greater
depth.
At
UCLA,
however,
the
University offered credible
evidence
that
a
candidate pool
existed
from which
UCLA
could
recruit
non-students
into
the
disputed
titles.w
1
9while
I
find credible the University's
claim
that
a
viablecandidate pool
exists
and
that the cost of
hiring
from
that
pool
could be
competitive,
I am
not as convinced as the University
isthat replacing current student
employees
with non-students
would
increase the educational benefits for undergraduates. For
example,
I
do
not believe that the University has
dealt
effectively
with the potential loss of benefits
from
the concept
of peer teaching.,
nor..-do.,T
..
th.ink,,the--Univer:sity
-has
shown
it
is
equipped
to deal with the
logistical
problems of hiring
so
many
new
non-students.
A
candidate pool
is
not
easily
transformed
into
a
viable workforce.
However,
in light
of
my
rejection of
the University's legal theory regarding non-student replacement
workers,
it is
unnecessary for
me
to
draw any conclusions
regarding
its
educational fectiveness.
89
Second,
the University
has
articulated
its
argument
more
clearly
and
more
thoroughly explained
s
theory
under
the
existing
evidence.
As a
result,
it
is
more
apparent
that
the
argument
is
incorrect.
There
are
two
major
flaws.
with
the University's-argument
on·
this
point;
one
legal
and
one
factual.
The
argument
is
flawed
legally
because
the University
is
seeking
to
have
the
Board once
again
''recalibrate
the scales"
by
adding
an
additional
test
to
the balance. Instead of
having
me
balance
the value
to
the
educational objectives the students
with
the
value of
services
provided
to
the University, the University
would
have
me
also
balance
the
value
employing
students
in
the
jobs
against
the
value of
employing
non-students.
According
to
the University:
The
analysis of the "services
provided" does
not
end
with
a
finding
that
the services
provided
·by
GSis
are or are
not of
some
benefit to
the University. Rather,
there
must
be
a
further
assessment
the value
and
effectiveness of
employing
students to
provide these services
as
compared
to
alternative
means
for securing the services.
[Emphasis
in original.]
The
additional step that
the University seeks
to
add
to the
balancing
test
·is not supported
by
the
Supreme
Court
in
by
the
Court
of
Appeal
AGSE,
by
the
Board
in
any
of
its
decisions, nor by
the
statute itself.
Clearly the
Act, as
interpreted
by
the courts, looks to the value of the services
provided to the University.
It
does not require
a
balancing
between the value of employing students to perform those services
90
against the
value
of
employing
non-students.
My
obligation
is
to
determine whether
the
value
of the
services
currently
received
by
the University,
as provided
under
the
current
structure,
outweighs
the
value
to
the
current
~ducational
objectives
of the
existing
students.
It
is
no
more
helpful
in this-task
to
weigh
how
the University
might
reinvent
itself
if
chose
to
do
things
differently in
the future
by
hiring
non-students
in
the disputed
titles,
than
to
balance those
alternative
staf.fing decisions
against the
potential
educational
objectives
of
students
if
no
jobs
were
available
at
UCLA
and
the
only
students
applying
to
UCLA
graduate schools
were
those with
independent
financ
support.
The
possibility that
the University
could
hire
non-students
to
perform
these
essential
services
at
a
competitive cost
does
not
in
any
way
lead
to
the conclusion
that
the current
use
of
student
employees
provides
little
value
to the University.
Quite
the contrary
is
true.
The
fact that
the University
would have
to
either
dramatically
alter
its
teaching mission
or hire
a
huge
replacement workforce
highlights just
how
important these
services are to the University.
The
University's
argument
is
also
undermined by
a
factual
issue. Clearly, both the University
and
the student
employees
value the learning experiences of
work
in the disputed
titles.
However,
there
is
intense competition
among
top Universit for
the best graduate students.
Because one
of the strongest
motivating factors for students seeking these positions is
91
economic
support,
if
the University did
not
offer
employment
to
graduate
students,
a
likely result
is
that
UCLA
graduate
programs
would
be
filled
primarily
with
students
who
are
either rich
or
mediocre.
The
best
and
the
brightest
students
without
independent
financial
support
couldn't afford
to
go
to
UCLA.
Only
those with.an
independent.means
of .support
or
those
who
.had
been
ected
by
other
universities
offering
better
employment
or
better
support
packages
would
end
up
at
UCLA.
This
leads
me
to
conclude
that
the University
is
motivated
to
use
student
employees
in the disputed
titles
at least
as
much,
if
not
more,
by
a
concern
that
a
failure to
provide
economic
support through
employment
:"'ould
diminish
the University
1 s
ability
to
attract
the
best
graduate
students.
I
therefore
conclude
that
while
there
is
value
to the
educational objectives received
by
all
the student
employees
in
the
remaining
disputed
t:i;.tles,
the value received
by
the
University
is
even
greater.
Thus,
the educational object of
student
employees
in
these
titles
are subordinate
to
the services
received
by
the University.
Prong Two--Will Coverage
Further the
Purposes
of the
Act?
University put
on most
of
its
Prong
Two
case during the
UCSD
portion of the hearing. Therefore,
much
of
this
discussion
will re to
evidence and arguments
already rejected in the
UCSD
decision.
92
GSRs
Having found
that
educational
objectives of
most
GSRS
are subordinate
to
the services
provided,
it
is
unnecessary
to
decide
Prong
Two
issues
except
for
those small
number
of
GSRs
doing
hourly
research faculty projects
unr~lated
to
the
dissertation
topic.
For
those hourly
GSRs, I
do
not
believe
under
Prong
Two
of
this test
that
it
would
further
the
purposes
of the
Act
to
split
the ass
and
provide
coverage
for
some
hourly
employed
GSRs.
Hourly
GSRs
account
for
a
very small
portion of
expended
GSR
support
funds.
Thus,
splitting
class
would
impact
only
a
limited
number
of students.
There
is
also
no
practical
method
of determining
which
GSRs
are
performing
research
which
may
at
some
time
overlap with
their
own
dissertation
research.
Even
some
hourly
funded
GSRs
are hired
more
to
support the student than
for the actual research they
provide
to
the faculty.
Thus,
because
there
is
no
administratively practical
method
for the
parties
to clearly
and
easily
determine
on
a
person-by-
person, hour-by-hour
basis
which
hourly
GSRs
might be
subject to
coverage,
and
because
this
group
constitutes
a
small
portion of
the
expended
GSR
funds,
I
feel that
it
would
not
further
the purposes of the
Act
to
split
the class
and
provide coverage
to
some
hourly
GSRs. I
do
so based
upon
the
above
listed
reasons
only and do
not find necessary to address other University
arguments under Prong
Two
of this test for
GSRs.
93
GSis,
Special
Readers, Readers,
RT/LSCs,
Tutors
The
arguments
applicable
to
the
second prong
are
similar for
the
remaining
positions
dispute
in
this
hearing~
I
therefore
do
not
distinguish
between
them
in
this
portion
of the decision.
In
creating
HEERA,
the Legislature believed
that
it
would
be
"advantageous
and
desirable"
to
extend
PERB 1 s
jurisdiction
to
the
University.
The
Legislature
noted
that
the
people
of the
State
of
California
have
a
fundamental
interest in
the
development
of
harmonious and
cooperative labor
relations
between
the University
and
its
employees.
A
harmonious
labor
management
relationship
is
necessary
to
preserve
and promote
the
responsibilities
granted
to
the University
by
the
people
of the
State California.
HEERA
assures
that
those
responsibilities will carried
out
in
an
atmosphere which
permits the
fullest participation
by employees
in the determination of conditions of
employment
which
affect
them.
It is
a
purpose
of the
Act
to create
a
system
of col ive
bargaining
which
includes
impasse mechanisms and
unfair practice
processes.
It is
also.a
purpose of the
Act
to preserve
and
encourage
joint
decision
making
in consultation
between
the
administration
and
faculty or
academic employees.
The
Legislature also reiterated
the
state's
policy of encouraging the
pursuit of excellence in teaching, research
and
learning through
the free
exchange of ideas
among
faculty, students
and
staff. It
also provided that part subject to
HEERA
shall
endeavor
to
preserve academic freedom.
94
Extending coverage to student employees at issue will create
th~ opportunity for them to participate in collective bargaining.
There are substantial employment concerns affecting student
employees. These concerns such as wages, hours, benefits,
disciplinary procedures~ and grievance processes, are.all
amenable to collective negotiations and will have a direct and
primary impact on the employment relationship between student
employees and the University.
The Legislature has already determined that collective
bargaining is the best mechanism for allowing employees full
participation in determination of employment conditions which
affect them. Providing employees the opportunity for such full
participation is also one of the most effective ways of building
a harmonious and cooperative labor management relationship.
Coverage under the Act will also extend to the University as well
-as to the Petitioner, the policy prohibiting unfair labor
practices which the Legislature has determined to be contrary to
the public interest. Finally, coverage will institute a system
for resolution of bargaining impasses which will help avoid the
type of labor unrest that the University has experienced through
the many recognition strikes by student employees.
I therefore conclude that extending coverage will further
the Act's purpose of establishing a system of collective
bargaining which will foster a harmonious labor management
relationship, and encourage joint decision making and
consultation between administration and academic employees.
95
The
University
correctly
argues
that
both
PERB
and
the court
in
AGSE
have
recognized
the
state's
policy
of
encouraging
excellence
in
teaching, research,
and
learning
through
the free
exchange
of
ideas
among
faculty, students
and
staff,
as
an
additional
purpose
of
Act.
It is
beyond
my
authority to reinterpret
the
purposes
of the
Act
as
found by
PERB
and
the court
in
AGSE.
In
order
to
extend
coverage
to
the disputed
positions,
I
must
find
that
coverage
encourages
excellence within the University.
In determining
that
excellence within the University
will
be
encouraged
by
extending coverage,
I
will
review
several factors
such
as the
impact on
the free
flow
of information, the student
faculty
mentor
relationship,
the disruption
caused
by
work
stoppages,
problems separating.employment
from
academic
issues,
potent
damage
to
the
stature
of the University,
conflict
rhetoric, issues of
intermittent
employees,
resolution
economic/academic
conflict,
and
the
potential
strain
on
the
University's limited resources.
Freeflow of Information
Collective bargaining, as envisioned under
HEERA,
will
produce
a
greater
flow information
and
free
exchange
of ideas
than
a
tuation
where employees
are unrepresented.
Union
witnesses
testified
about the democratic
participation of unit
members
in the
development
of issues
and
proposals to
be brought
to the table. Representative bargaining teams
are selected.
Surveys are taken
among
the
membership
to ensure that concerns of
96
student
employees
are
voiced
to
management.
Mutual
bargaining
obligat will
ensure
that
the
employment
concerns
of both
parties
have
a
forum
for
expression.
This
increase
in
the free
flow
of information
through
the
bargaining process
does
not
typically
diminish
communications
between
individual students
and
individual
faculty
members.
The
University
has
cited
one
instance
where
communication
may
be
reduced
among some
student
committees
at
UC
Berkeley.w
In
that
one
instance, the University
proposed
to
AGSE
at
the bargaining
table
that
the University
would
continue
to
meet and
discuss
negotiable
terms
and
conditions of
employment
with
other
committees which
included bargaining
unit
members.
AGSE
rejected
that
proposal.
It
is
a
reasonable
and
legitimate
concern
on
the
part
of
any
union
that
the
employer
bargain with the exclusive
representative.
If
bypassing the
union
on
negotiable issues
were
evidence
of
a
restrict
in
the free
flow
of information under
the
Act,
the Legislature
would
not
have adopted
the
concept
of
exclusive representation,
and
bargaining throughout the
University
would
not
exist
as
we know
it.
In
any
event, the
University's
argument
in this
regard
is
somewhat
misplaced.
Collective bargaining with
an
exclusive representative
does not
20
Both
Dean Duggan and
UAW
International Representative
MaryAnn
Massenburg
testified
regarding this instance.
Where
theirtestimony conflicts,
I
credit
Massenburg. This
is
not because
Duggan's testimony
is unreliable, but rather because Massenburg
provided
a more complete explanation.
97
prohibit
~he
employer
from
communicating
with
employees.
(Electromation,
Inc.
(1992) 309
NLRB
No.
163
[142
LRRM
1001];
E.I.
du
Pont de
Nemours
&
Co.
(1993)
311
NLRB
893 [143
LRRM
1121]
. )
University
also
argues
that collective
bargaining
will
eliminate
broad
participation
throughout
the University
and
instead
centralize
communications between
small
groups
of
students
willing to
expend
time
necessary
to
be
on
the bargaining
team,
the
UAW
agent
and
a
small
group
of
campus
administrators.
According
to
the University:
The
only
new
voice
to
be added
to
the.
consultation
and
decision
making
process
by
the
advent
of
a
collective
bargaining
relationship
would be
the
Union's voice.
The
University believes
this
would
diminish
the
number
of
and
variety
of shared viewpoints. This
ignores the
fact that
the
union
is
given
its
voice
by
its
members. Employee
decisions
regarding exclusive representation will
no
doubt be
based
in
some
part
on what
they
feel will
be
the
most
fective·
way
of ing
their
views heard within the University
system.
I
there
reject
these
arguments and
find that
the
collective
bargaining
process
will increase freeflow of information.
Mentor
Issues
A
factor
weighing
heavily in the decision
was
potent
.impact .oL
co.lle.cti;v:e
..
bargai,rHi.ng ,on
·the ·mentor
relationship.
The
record in this
case does not support
a
conclusion that collect bargaining will
damage mentor
relationships.
98
mentor
relationship,
which
is
crucial to
education
at
the University
and
about
which
numerous
University witnesses
testif
,
is
limited primarily
to
the ationship
between
a
graduate
student
and
a
dissertation
committee
chair, or
sometimes
a
commit
te·e
member.
Any
impact
upon
that relationship
by
HEERA
coverage
is virtually
non-existent.
While
there
were
many
examples
of student
employees
seeking
out
certain faculty
members
for
advice,
guidance,
specif
knowledge
or
letters
recommendation, most
of these
relatio.nships did
not
rise
to
the
level
a
true
mentor
relationship.
The
University
argues
that
the
dec.ision adopted
too
narrow
a
definition
of
a
mentor
relationship, limiting
it
to
the
relationship
"between
a
graduate student
and
a
dissertation chair
or
sometimes
a
committee
member.
11
-
That
finding
was, however,
simply
reflective
of testimony of
many
students
as well as
University witnesses.
What was
apparent
was
that
a
great
many
faculty
and
University administrators overestimated
their
impact
as
mentors
upon
students.
While
not
always
the case,
a
more
accurate assessment of
a
mentor
relationship usually
comes from
the individual receiving the
mentoring
rather
than the person
who
believes the guidance they are giving
is
so valuable.
Even
if
evidence indicated that
a
large
number
of
mentor
relationships overlapped with
employment
relationships, extending
coverage would
not
damage
those relationships.
There
is
nothing
inherent in collective bargaining that precludes
a
supervisor
99
from
being
a
mentor
or
a
mentor
from
being
a
supervisor.
Conversely, denying coverage
would
not
enhance
the
relationships.
Potential
conflict
is
a
natural part
of
any
relationship,
be
it
employer
employee,
or faculty-student.
As
testified
by
Dr.
Hecker:
The
problems
that
a
contract
addresses
are
not
going
to
go
away.
If
graduate
assistants
are
overworked,
if
graduate
assistants
don
1 t
have
health
insurance,
if
jobs
are
given
arbitrarily,
if
graduate
assistants
are
dismissed without
just
cause,
you're
going
to
have an
angry
bunch
of graduate
assistants
...
graduate
assistants
who
are
less
angry
and
less
concerned because
their
issues
[are] covered
by
a
contract are
probably
more
likely to
be
better
teachers,
more
likely
to
be
able
to
focus
better
on
the
research they
do,
whatever
theirresponsibilit
are.
Problems
aren
1 t
going
to
go
away
just
because
there
may
not
happen
to
be
a
collective
bargaining
agreement
someplace.
Those
problems have
to
be
resolved
and
this is
the best
way
to
resolve
them.
Having
greater
clarity
about
the
parameters of the
employment
relationship,
brought about
by
a
collective
bargaining
agreement
or
open
discourse
between
the University
and an
employee
chosen
representative, will
tend
to
avoid
potential
conflict
between
students
and
faculty rather
than
create
Numerous
witnesses
called
by
both the University
and
the
Petitioner, testified that greater clarity
of
employment
rules
are ,extremely helpful in
avoidance of
conflict.
While such
guidelines
might be accomplished through
a
good
faculty
handbook
or personnel policy
manual, providing employees with,
greater
input into the issues
and decisions tends to
make
any such
100
document
more
effective
and
more
accepted than
one
unilaterally
developed.
The
dialogue of
collective
bargaining
can
help
develop
a
better
roadmap
for
problem
avoidance
between
faculty
mentors
and
student
employees.
Most
academic
or
employment
disputes
between
faculty
and
student are
settled
informally
at
early
stages
where
it.
is
to
the
advantage
of
both
part to
avoid
escalation.
This
is
true
regarding
all
of the
other
bargaining
re ionships
examined
at
the hearing.
Only
a
minute
number
of disputes ever
reached
the
final
stages
of
whichever
conflict
resolution
process
was
being
utilized.
This
hardly supports the
University's
argument
that
one
of the
most
fundamental
aspects of graduate education, the
student
faculty
mentor
relationship,
will
be
damaged
because
student
employees
will
have
the opportunity
to negotiate
with
faculty
members
and
administrators
at
the bargaining
table,
and
possibly confront
them
through
a
negotiated grievance procedure.
University
states that
UCLA's
experience has been
that
student
complaints
are
most
effectively
resolved through informal
channels.
However,
there
is
nothing inherent in collective
bargaining
which
precludes informal
resolution
of disputes.
Quite the contrary true.
Every
negotiated grievance procedure
offered into this
record provides for
informal
conflict
resolution stages.
It is
only
if
informal
methods
fail to lead
to
a
mutually agreeable solution that
more
formal procedures are
available.
101
Student
employees
are
no
doubt
aware
of the
potentially
precarious nature of
their
relationship
with
faculty,
and
the
tremendous
advantage
of
maintaining
a
pos
ive
relationship
with
someone
on
whom
they
may
rely
for
entrance
into
graduate
school
or
in establishing
their
careers.
Regardless
of the nature of
any
col ive bargaining grievance process
ultimately
agreed
upon,
is
unlikely
that
coverage under
HEERA
will
unleash
a
frenzy grievances
by
student
employees
against
their
highly
valued
mentors.
unsupported
that collective
bargaining
could
unduly
restrict
the
hiring
process
and
therefore negatively
impact
the
mentor
relationship
does
not
justify
denying coverage.
There
currently exists
many
restrictions
in
the
hiring
process
do
not
damage
those
relationships.
For example,
students
must
have
a
3.0
GPA.
They must have
taken the course
and
received
an
A.
Graduate
students
have
priority
over undergraduate
students.
They
cannot
work more
than
50
percent,
etc.
Moreover,
that
collective
bargaining
would
lead to
student faculty
mentor
relationships
based
upon
seniority
are
unjustified.
That has not
been
the
result at
any
other university
where
bargaining has
occurred, nor does
HEERA
compel
the University to
agree
to this
or
any
other proposal.
The
University expressed concern
that
"the apparent need
for
unions
to
use the grievance process to justify their
continued
existence" will generate conflict
between
faculty
and
students.
Both
parties cited
a
particular
workload grievance filed
by
a GSI
102
in the earth and space science department in support of their
positions on this issue. While I make no findings whatsoever
about the underlying merits of the grievance, I do conclude that
the process used only marginally fostered the free flow of
information. For example, a special ad hoc committee established
by the department to investigate the matter seemed to make its
findings and draw conclusions without ever even talking to the
grievant.
No doubt some unions have filed grievances and both
employers and unions have filed unfair practice charges for
tactical reasons. In most cases, however, as stated by several
witnesses, it is the conflict which generates the grievance, not
the grievance which generates the conflict. This is particularly
true in conflict~ involving individual students and individual
faculty members, where the organizational impact is less than it
would be with larger group grievances. Thus, in situations where
grievances are increased and the rhetoric is ratcheted up in an
effort to build solidarity for upcoming bargaining, those
disputes typically are not the sort of activities which will
directly impact individual faculty student mentor relationships.
The University offered the testimony of Dean Duggan to show
how collective bargaining at UC Berkeley strained the
relationship between Duggan, a University spokesperson during one
of the previous student employee strikes, and Andy Kahl, a
spokesperson for AGSE when they were out on strike. This
obviously created strain in their relationship. However, this
103
example
does
not support
the
University's position
for
two
reasons.
First,
Duggan
and
Kahl
were
able
to
re-establish
their
relationship
after
the
strike.
Duggan
continued as
a
member
of
Kahl's
committee
and
continued reading
his
dissertation,
eventually leading
to
Kahl'
s
Ph.D. Even
more
fundamentally,
..
however,
the
conflict that situation
(the
student
employee
strike)
was
not
a
result
of
collective
bargaining. Exactly the
oppos
was
true.
The
strike
occurred
because
the University
was
refusing to
recognize
AGSE
and engage
in collective
bargaining.
The
strike
and
the
resulting
strain
on
the
Duggan/Kahl
relationship
was
a
direct result
of the lack of
collective
bargaining, not the existence
collective
bargaining.
Finally, several University witnesses expressed
fears that
collective
bargaining
in
general,
and
a
formal
grievance process
in
particular,
would
ultimately
damage
the student
faculty
relationship
because
faculty
members
might
retaliate
against
students
if
they
filed
grievances.
Witnesses suggested
that
students
would
ultimately
be
better
served
if
disputes
were
resolved informally within the
academic
family.
If
a
formal
determination
was made
or
a
decision issued
by an
arbitrator that
concluded
a
faculty
member
had
acted inappropriately,
illegally,
or contrary to provisions in
a
contract, that faculty
member
might
retaliate
academically against the student. Since faculty
members
play such
a
vi role in the success of students, the
104
student would ultimately be the loser, according to these
witnesses.
The argument that rights should be denied to individuals
because those in power, when confronted ~ith their alleged
misdeeds, might retaliate against those not in power, is
unpersuasive. At best, this argument is paternalistic and is
based upon a fear of confrontation, rather than a realistic
assessment of the impact of collective bargaining. It may be
more comfortable for faculty members to avoid being confronted
with alleged misdeeds or to avoid final determinations made
against them. However, some discomfort and education may be
necessary to fairly resolve contested issues. There is no
justification for denying individuals rights in order to avoid an
improper or illegal overreaction by other individuals opposed to
those rights. Such actions are typically counterproductive and
are an ineffective method of resolving disputes regardless of
their nature.
To the extent that the fears expressed are realistic,
however, and faculty might actually retaliate against student
employees, that dramatically underscores the rather superficial
nature of the relationship to begin with. It also vividly
demonstrates the potential need for representation and greater
protection.
After 71 days of formal hearing, involving approximately 200
witnesses, there is simply no credible evidence in this record to
support a finding that mentor relationships will deteriorate if
105
the students in question are found to be employees under the Act.
Work Stoppages
The occurrence of strikes and the potential for strikes was
raised by several witnesses. While strikes among student
employees in a recognized bargaining unit have occurred as a
negotiation pressure tactic (at the University of Michigan for
example) they are rare. Most of the strikes referred to by
witnesses in this hearing occurred as a demand for recognition.
Recognition strikes have occurred at UC Berkeley at least twice,
at UC Santa Cruz twice and at UCLA and UCSD.
Work stoppages are, by the accounts of most witnesses, one
of the most disruptive and adversarial aspects of the ·1abor
management relationship. They not only have the potential to
strain relationships between an employee and a supervisor, but in
a University setting, they have crucial additional negative
impacts. Student employee strikes can pit faculty against
faculty and can drive a wedge between some faculty and the
administration. Strikes can also disrupt the educational process
of members of the bargaining unit, whether or not they honor the
strike by pitting student against student. Strikes can also draw
harsh reaction from the public at large. At a time when the
University is continually under siege reg·arding budget issues and
under intense public scrutiny for a myriad of other reasons,
strikes send a decidedly wrong message to segments of the
community.
106
Finally
and
most
important,
strikes
are
enormously
disruptive to
the educational process of
other university
students.
Most
students,
and
particularly
undergraduate
students
because
of the
tremendous
cost
of
their
education,
are
faced with
a
very
limited
window
opportunity
completing
the
coursework.
One
quarter
is
a
very
short period of
time
for
students
to
absorb
a
,huge
volume
of information.
Even
a
strike
of
short duration,
causing
the
loss
of only
a
few
section
meetings,
can
amount
to
a
major
setback
students
and
may
have
ramifications
beyond
that particular
quarter.
While
perhaps not
as important
to
many
students,
delays
in
submission
of
grades
can
also
be
crucial to
students
ready
to
graduate
or
dealing with
prerequisite
requirements.
Strikes
are
a
breakdown
in
the labor
management
relationship
and can
result in
a
fundamental
disruption
of the educational
process.
Probably
more
than
any
other aspect of the labor
management
relationship,
they
disrupt the "pursuit of excellence
in
teaching, research,
and
learning
through the free
exchange
of
ideas
among
the faculty, students,
and
staff
....
"
While
the record
is
not completely
clear,
it
appears
that there
have been
more
student
employee
strikes at
the University than
the
combined
total
of
all
the other universities
from which
witnesses
testified at
hearing.
Given
the fact that student
employee unions
do
not have
the opportunity to negotiate over
academic
issues, providing
a
mechanism
for the avoidance
107
strikes
.is
a
significant
and
effective
way
to
encourage
excellence
within the University
1 s
mission.
Legislature
recognized
how
damaging
strikes
can be
to
the excellence of the University
and
its
mission.
It
included
a
multi-step dispute
resolution
process
which
involves
the
assistance of
mediation,
a
factfinding
process,
and
post
factfinding
mediation.
The Supreme
Court
recognized
the value of
that
process
in
San Diego
Teachers
Association
21
and
Regents,
where
it
stated:
The
University also
argues
that
permitting
collective
bargaining
for housestaff
may
lead
to strikes.
However,
it
is
widely recognized
that collective
•bargaining
is
an
alternative
dispute resolution
mechanism
which
diminishes
the
probability that
vital
services will
be
interrupted. [Citation;
Regents
at
p.
623.]
The
University
urges
in
its
brief that
extending coverage
to
student
employees
will
not guarantee the
absence
of
strikes.
That
absolutely
true.
As
recognized
by
the
Supreme
Court
1
it
will,
however,
reduce
the likelihood of
strikes.
Furthermore,
the University
1 s
denial bargaining
rights to
student
employees
has over
the.past
decade almost guaranteed the presence of
strikes.
As a
policy to
avoid the disruption of
work
stoppages,
denying
collective
bargaining
rights to student
employees has
failed.
The
University also argues
that Petitioner's greatest
bargaining
power comes from
a
strike,
and
that exercise of that
21
San Diego Teachers Association v. Superior Court (1979)
24
Cal. 3d
1 [154 Cal. Rptr.
893] .
108
power would
not
further
excellence
in
the University
because
it
would
hurt other students.
That,
of course,
is
the
same
bargaining
power
that
all
the other University
unions
have
as
well
and
the Legislature
has
not decided
that
existence of
that
power
destroys excellence
in
the University.
And,
as
stated
above,
it
is
well
established in California
law
that collective
bargaining
is
seen as
a
method
of reducing
the
risk
of
strikes.
I
therefore
conclude
that
extending
coverage
to
the
employees
in
question
diminishes
the likelihood
of
strikes.
Obligating the
parties
to
participate
the
mediatory luence
of the
HEERA
impasse
procedures
will
not only help
develop
a
harmonious and
cooperative labor
management
relationship,
but
will
encourage
the
pursuit of excellence
in
teaching, research,
and
learning
through
the free
exchange
of ideas
among
the
faculty, students,
and
staff.
Academic
vs.
Economic
Issues
The
belief that
it
impossible
to successfully separate
academic from economic
issues
is
no
longer accurate based
on
the
record
this
case. Witnesses
for the Pet
ioner
testified that
parties
have been
able to separate
academic from employment
disputes
and
offered
examples.
University witnesses
testified
that is difficult
to separate
academic from employment
issues.
conclusion
I
draw from
this
record
is that
although
it
may
be hard
work,
it
is
possible to distinguish
between the
two,
and
therefore exaggerated fears of overlap between academic and
109
employment
issues are
not
a
legitimate
reason
for
denying
coverage under
HEERA.
Many
of
the
collective
bargaining
agreements
entered
into
evidence
in
this
hearing,
along with
the
negotiating
proposals
for
the
AGSE
unit at
UC
Berkeley,
contain
either
explic
limitations
on
the
authority
of
arbitrators
regarding
academic
issues or
express
reservation
of University
authority
regarding
academic
matters.
Even
the
University's
own
conflict resolution
process
(APM
140)
and
University proposals
at
the
UC
Berkeley
bargaining
table
draw
a
distinction
between academic and
employment
issues.
Other
university
employers
passionately
defend
their
exercise of
academic
discretion.
For
them
it
appears
to
be
the
line
drawn
in
the
sand.
The
University
Oregon
is
a
good
example. There,
Dean
Upham
clearly
takes
a
collaborative
approach
to collective
bargaining.
Of
the
approximately
35
formal
grievances
filed
during
his tenure as
dean,
not
a
single
one
has
gone
to
arbitrat
His
philosophy
is that
confrontations are not anyone's
best
interest.
His
exception
to
this
philosophy,
however,
concerns
issues
fundamental
to the
University's exercise of
academic
discretion.
When
such
issues
arise,
University
becomes
intractable, refusing to inquish
these rights.
Dr.
Julius testified that universit
s
would
probably be
even more
resistant to giving in to student
employee unions than
they would with faculty units.
Even Dr. Craig, clearly
one of
110
the
most
anti-union,
anti-collective
bargaining witnesses
to
testify
the hearing
1
acknowledged
that
there
were
no
provisions
in
their
collective
bargaining
agreement
that
felt
infringed
upon
or negatively
impacted
the
academic program
at
the
University of
Wisconsin.
University of
Michigan
refused
to
bargain over
an
issue
that
it
felt
infringed
upon
its
academic
discretion.
It
spent
several years
litigating
the issue
and
ultimately prevailed.
That
not only demonstrates
how
universit
shave
been
able
to
identi
academic
issues,
but
shows
they
have
not
rolled
over
and
played
dead
when
their
academic
discretion
is
threatened.
It
also
demonstrates
that
if
and
when
the
parties
are
unable
to
resolve
their
differences
regarding
which
issues are bargainable,
there are other appropriate
forums
for resolving
such
disputes.
As
noted
in
Regents:
These
scope-
-representation issues
may
be
resolved
by
the
Board
when
they arise., since
it
alone has
the
responsibility
11
[t]o
determine
in
disputed cases
whether
a
particular
item
is
within or
without the
scope
of
representation."
.
[Regents
at
p. 623.]
Disputes over the
scope
of representation are
manageable
issues.
PERB
and
the courts
have
resolved
literally
hundreds
of
scope
representation disputes since collective
bargaining
obligations
were extended
to California's
more
than
1100
public
school employers-twenty years ago.
Numerous
scope of
representation issues
have
also
been decided under
HEERA
and
the
Dills Act. Thus
a
large, well settled
body of law
exists this
111
area. The mere potential for scope of representation disputes is
not a reason to deny coverage, given the dispute resolution
mechanisms available to the parties.
As well as believing it is impossible to separate academic
from economic issues, the University argues that Petitioner will
not attempt to avoid academic issues. It cites as one example of
the Petitioner's intrusion into a "purely academic concern," the
Petitioner's involvement along with other unions in the UCLA
Affirmative Action Coalition, which has organized numerous campus
activities in support of affirmative action policies.
If a union is eventually certified as an exclusive
representative, its membership will be made up of UCLA employees.
In joining the union, those individuals do not give up their
basic free speech rights to take positions on issues of concern
within the academic community. If one wants to speak out either
for or against affirmative action policies, either individually
or organizationally, for example, one should be free to do so
whether one is an undergraduate tutor or chancellor of UCLA.
That freedom of expression goes hand in hand with an increased
"free exchange of ideas among the faculty, students and staff".
It is a separate issue, however, whether the University must
bargain with the union over issues which may be outside the scope
of negotiation. As discussed earlier, provisions of the Act
provide the parties with other procedures fo~ resolving such
scope issues. Thus, fear of the union's political advocacy does
not form a legitimate basis.for denying rights under the Act.
112
Potential Damage to Stature of the University
Another issue relied upon in the AGSE decision was the fear
that collective bargaining would damage the stature of the
institution and affect its ability to attract and retain the most
able and productive faculty and graduate Btudents. There is no
credible evidence whatsoever in this record that would support
such a finding. The only such evidence offered was from Dr.
Craig who repeated second hand speculation that $9.00 per month
union dues might dissuade graduate students from choosing the
University of Wisconsin. Her fears are undermined by her other
testimony that the University of Wisconsin was the first
University in the country to negotiate a collective bargaining
agreement with graduate student employees and that it remains to
this day a world class university with an outstanding reputation.
A mature bargaining relationship providing a collective
bargaining agreeme~t with clarity over terms and conditions of
employment would probably be an enhancement to potential student
employees, rather than a deterrent.
There is nothing in the record supporting a finding that
granting coverage to student employees in this case would affect
the University's ability to attract and retain the most able and
productive faculty. This is particularly true in light of the
fact that faculty themselves are covered under HEERA.
Conflicts Between Services and Educational Objectives
The University argues that it sacrifices lower labor costs
in order to give adequate financial support to student employees.
113
As
suggested
earl
,
this
argument
overlooks
the
competitive
nature
recruiting
top
students.
If
the Uaiversity did not
give adequate
financial
support
to
its
students
would
not
have
the
same
outstanding students
that
it
now
has. Resolving
this
conflict in
any
other
way
would
be
as
detrimental
to
the
University's
graduate
program
as
it
would
to
student
employees.
The
University
also
argues
that
it
gives these
positions to
the top
students
rather
than
to
those with the
best
teaching
ability,
thus
sacrificing
its
interest
in obtaining the
best
teachers
in
favor of the
student's
educational
objectives.
First,
the
claim
that
it
gives these
positions to the best
students
rather
than the
best teachers
is
not
entirely
supported
by
the record.
There
are
numerous methods
of
selecting
student
employees, from complex
algorithms ·taking
much
more
than
academic
standing
into
account,
to
a mad
scramble
to
find
anyone
willing
to teach the course.
Furthermore,
the very
best students are
often
supported
by
fellowships, requiring
no work
in return.
In
some
cases,
more
difficult
courses
are
only given
to
more
experienced
and
better qualified
GSis. This does
not appear
to
create
any
great conflict
which
is
resolved
in
favor of the
student's educational objectives.
According
to the University, policies applicable to
GSI
appointments encourage students to
make
progress toward
their
degree
rather than enable the University to obtain services
from
the best teachers. Policies limiting appointments to
12
114
quarters, requiring
a
3.0
GPA,
and
limiting
hours
to
20
per
week
are
all
designed
to
make
sure
that
precedence
is
given
to
the
GSI's
progress
toward
their
degree.
Also,
significant ef
is
taken
to
ensure
that
departments
and
individual
instructors
adhere
to
the
workload
hours
limit.
This,
however,
is
a
hollow
argument
when
compared
to
University's
efforts'to
encourage
GSRs
to
make
progres.s toward
their
degrees.
GSRs
are paid
to
complete
their
own
research
and
write
their
dissertation.
If
the
same
standards
were
applied to
GSis
the University
would
not
be
worrying about
enforcing the
20
hour
work
load
limit.
It
is
notewor~hy
that
complaints involving
workload
seemed
to
only
arise in
GSI
type of
employment
and were
unheard
of
from
GSRs,
whose employment
directly
supported
their
educational objectives
rather
than
took time
away
from them.
No
one
complained
that
they
needed
to
cut
down
on_
their
GSR
hours
because
it
was
interfering
with
dissertation
research.
The
fact
that
the University
makes
such an
effort
to
enforce these
limits
with
respect to
GSis
supports the
Petitioner
1 s
claim
that
the
work
takes time
away
from
pursuit of the degree,
rather
than
encouraging
it.
Ensuring
that
only
half of
GSis' time
is
devoted
to
something
other than
their
degree program
is
not the
same
thing as encouraging
them
to
make
progress
on
their
degree.
Furthermore,
when
the University hires
an
individual to
work
20
hours per
week
and then discovers that the job takes
25
hours
per
week
because of larger than expected enrollment for
example,
it is
hard for
me
to see
how
reducing workload back
to
20
115
.hours
per
week
damages
interests
of the University, unless
it
claims
some
entitlement to
that
extra
time.
A
fair
resolution
of
a
legitimate
workload
dispute
can
hardly
be
seen
as
sacrificing
University services for
the educational
objectives
of
the
GS!.
Another
example
offered
by
the University
is
that
scheduling
conflicts
are
resolved favor of
the
student's
academic
interests
rather
than
the
employment
responsibilities.
Flexible
schedules
is
the nature of
the beast
when
employing
students.
This
is
so whether
they are
employed
in
the
cafeteria,
on
a
grounds
crew,
or
in
the disputed
t
les.
The
University
seems
to
be
able
to
cope
with
this
issue
without
any
great
detriment
to the University. In
fact
given the nature of the
jobs
student
employees
perform
and
the
clientele
they
serve·
(other
students),
a
flexible
work
schedule
may
actually
work
to
the
University's
advantage.
Overall, given the
way
potential conflicts
are resolved,
I
do
not conclude
that
service considerations are
sacrificed to
educational objectives.
Part-time/Intermittent
Employee
Issues
There
was some
testimony
by
University witnesses
that
representation of part-time or intermittent
employees
will
be
ineffectual
and
create scontinuity.
This
was
rebutted
by union
witnesses
who
gave examples
in other industries
where such
representation
can be very effective.
Furthermore, there are
ample examples within the field
of education
where
part-time or
116
intermittent
employees have
been
represented
in
a
successful
manner.
In
Unit Determination
for
Employees
of the
California State
University
and
Colleges
(1981)
PERB
Decision
No.
173-H,
PERB
found
a
comprehensive
unit
of
faculty,
including
all
full-time
and
part
time
instructors,
tenured
and
non-tenured; as well as
coaches
and
librarians,
to
be
appropriate
for
meeting
and
conferring
under
HEERA. PERB
has
also established separate
units
of
part
time
faculty in
Mendocino
Community
College
District
(1981)
PERB
Decision
No.
144
and
Long
Beach
Community
College
District
(
1989)
PERB
Decision
No.
765.
22
Additionally,
in
at
three
districts,
the
Board found
a
separate bargaining
unit of per
diem
substitute
teachers appropriate
under
EERA.
(Oakland
Unified
School
District
(1979)
PERB
Decision
No.
102
and
Palo Alto Unified
School
District/Jefferson
Union High
School
District
(1979") PERB
Decision
No.
84.)
Finally,
substitute,
temporary, hourly,
adult
education
and
summer
school
employees
have been
consistently
included
by
PERB
within bargaining
units.
23
22
Part-time faculty
were
included
by
PERB
in units
with
full-
time
faculty in Hartnell
Community
College
District
(1979)
PERB
Decision
No. 81
and Marin
Community
College
District
(1978)
PERB
Decision
No.
64;
adult education teachers
were
included
in
the
faculty unit in
Glendale
Community
College
District
(1979)
PERB
Decision
No.
88; and
summer
school
faculty
were
included
in the
faculty .unit
...
in
*Mt
...
San
..
Anton,io,.-C0mraurni.ty ·Colle:!Je
District
(1983)PERB
Decision
No.
292.
,
e.g.,
Redwood
City School
District
(1979) PERB
Decision
No.
107; El Monte
Unified School
District
(1980) PERB
Dec
ion
No.
142; Dixie Unified School
District
(1981) PERB
Decision
No. 171; Palo Alto Unified School
District
(1983) PERB
117
One other issue regarding intermittent employment was the
concern that establishment of a bargaining unit might create two
classes of employees, one covered and one not covered. The
University cites the UCLA practice of using undergraduate
students inGSI positions when the University cannot hire enough
graduate students to fill all the vacant "GSI opportunities."
This, according to the University,. supports the Board's
conclusion in AGSE that collective bargaining could create
arbitrary distinctions between paid and unpaid students.
However, this record is clear that collective bargaining has
not created those arbitrary distinctions. The University has
already done that. For example, some students have GSHIP, others
do not. Some have fee remissions, others do not. Some receive
fellowships, others have to work for their paychecks. Some
receive pay for educating themselves, others get paid for
educating others. These differences do not seem to have created
insurmountable problems for the University or its student
employees, otherwise it is safe to assume that the University
would not have done it. Furthermore, the most inconsistency
between paid and unpaid status falls within the GSR ranks, which
have already been excluded from coverage for other reasons.
Limited Resources of the University
Another reason advanced by the University for denying
coverage was that bargaining would put increased strain on the
Decision No. 352; Fairfield-Suisun Unified School District (1983)
PERB Decision No. 370.
118
limited
resources of the University.
This
strain
would
be
caused
by
the increased
staff
time
necessary
to
engage
in
collective.
bargaining
and
contract administration.
It
would,
according
to
University witnesses,
also
result
from
the
demands
of
the
Petitioner
for
better
wages
and
benefits.
Any
increases granted
to unit
members
would
have
to
be
taken
from
other
academic
programs,
according
to
University.
If this
were
a
legitimate
reason
for
denying
collective
bargaining
rights to
employees,
there
would
not
be
a
single unit
in existence,
in
either
the public
or private sectors.
Arguments
that
union
demands
will create
a
financial
burden
upon
the
University are
entirely
appropriate
in
an
election
campaign
or
at
the bargaining
table,
but are
not reasons
to
deny
coverage under
HEERA.
Union
Rhetoric
University
argues
that
the
rhetoric
used
by
unions
is
counterproductive
to
a
University
environment. According
to
the
University:
In
a
collegial·environment, there are sharedassumptions about
how
colleagues address
one
another
when
attempting to resolve
a
conflict.
The
rhetoric traditionally
employed by
unions
is antithetical to thiscollegial tradition,
and
the clash
is likethe proverbial fingernail
on
a
chalkboard.
It cites
the
Petitioner's
treatment of the sexual harassment
issue in the
SAGE
NEWS
as an example
of
Petitioner's
demonstrated
tendency
to vilify
the University
and
its
administrators,
and
asserts that
such rhetoric
can diminish
a
collegial
atmosphere.
119
For
an
institution
that
prides
itself
on academic freedom
and
the
benefits
of diverse
viewpoints,
the University
has
rather
thin
skin in
this
area
and
seems
rather intolerant
of the
viewpoints of the
union,
particularly
when
they are
critical
of
the
University administration.
The
record
reflects
that
University's rhetoric
can
be
just
as
positional
and
closed
minded
as
any
of
that
of the
Petitioner.
If
anything,
this
evidence
supports
a
finding
that
the
University's actions
have
decreased
the
exchange
of information.
Erosion
of the Status
Quo
Another
University
argument
is
that
public pressure
and
a
strong
desire to
resolve
conflict
with
s
students
will
lead the
University to
give
in
on
crucial issues
which
may
erode
academic and
administrative
status
quo which
currently
supports
excellence
at
the University.
This
argument
is
a
bit
like
asking
PERB
to
deny
coverage
to
employees
in
order
to protect
the
University
from
its
own
lack of
will,
bargaining
strength or
persuasive
ability at
bargaining
table.
This
is
a
weak
argument
for several reasons.
There
is
ample
evidence
in the
record
that other universities
have been
able to
maintain
their
interests
while bargaining with student
employees. There
also
ample
evidenc{;l
in
the record
that the University has adamantly
and
successfully maintained
its
interests to date during
collective bargaining with student
employees
at
UC
Berkeley.
Finally, there is
nothing in the record suggesting that
a
change
in the status
quo
will
undermine excel at the University.
120
Any status quo .at the University of California is clearly a
dynamic status quo subject to change at any given time.
Coverage Will Further the Purposes of the Act
An examination of these second prong issues leads me to
conclude that extending coverage to the disputed positions will
not only help develop a more harmonious and cooperative labor
management relationship, but it will affirmatively encourage
excellence within the University. Mutual bargaining obligations
will result in a greater flow of information rather than a
lessening of information and ideas. Clarity over employment
issues provided through collective bargaining agreements will
. help avoid disputes which may endanger student faculty
relationships. If disputes do arise, a mutually negotiated
dispute resolution process can assist the parties with their
employment dispute by ensuring some protections .for ·the
complainant and a sense of fairness for both parties. Impasse
procedures built into the Act will also minimize the possibility
of one of the most disruptive aspects of collective bargaining,
the work stoppage. These affirmative encouragements of
excellence will be gained without other significant negative
impacts.
A good portion of the University's Prong Two arguments seem
to be based upon a distaste for collective bargaining in general,
rather than a specific application of the law to the facts in
this case. For example, the University's arguments about.a lack
of union bargaining power, the nature of unions in a conflicted
121
situation, organizing issues, the strain on finances or
administrators time, the negative impact of strikes, and the
rhetoric of conflict are merely generalized arguments against
unions and collective bargaining and not focused so much on the
student employee question. As such, they are applicable to
bargaining within units of faculty, skilled crafts, technical,
housestaff, clerical and maintenance employees, etc., yet all of
these have been found to be appropriate for collective bargaining
within the University.
For these reasons, I find that the educational objectives of
GSis, readers, tutors, special readers, and RT/LSCs are
subordinate to the services they provide and that it would
further the purposes of the Act to extend coverage to the
employees in question.
TUTOR SUPERVISORS
Findings of Fact
There are approximately 32 tutor supervisors employed within
CTS and AAP. They are typically students who are hired for a
full year. They earn more than tutors because of their
additional responsibilities. Tutor supervisors have
responsibility over the day-to-day operation of the tutoring
programs. They set up work schedules and assign work to tutors.
They play a significant role in the training of new tutors and
they are expected to evaluate tutors in writing once per year.
It appears, however, that once passed the initial quarter,
evaluations may be spotty for veteran tutors.
122
Among
other
dut
,
tutor
supervisors
also
have
responsibility
for recruiting,
interviewing
and
selecting
tutors.
Tutor
supervisors
recruit
applicants
and
decide
which
candidates
will
be
interviewed.
The
first
interview
is
usually
conducted
in
a
group
setting
with
several
tutor
supervisors and·several
tutor
applicants.
If
candidates are successful
at this
stage, they are
interviewed
individually
by
t.utor
supervisors.
24
Tutor
supervisors
make
their
ection,
and
then
set
up
an
interview
with
either
a
tutorial
lab
director
or
the
director
of
the
program.
The
interviewing process
conducted
by
the
tutor
supervisors
reduces
the
number
of candidates considerably.
Out
of
90
applicants for the
math/science
program,
only approximately
15
might be
selected.
Out
of
30
or
40
applicants in
the English
composition
program,
only abqut
a
dozen might be
hired.
Judith Callas,
director
of
CTS,
test
ied
that
she has never
disagreed with
one
of
selections sent
to
her
by
the
tutor
supervisors.
The
only times she has not accepted
a
recommendation
is
when
there
was
not
enough
money
to hire
1
the
tutors.
Maria
Ramas,
coordinator of
soc
science
tutorials
within
AAP,
could
recall
only
a
single instance several
ago
where
a
selection decision of the
tutor
supervisor
was
rejected.
That case
seemed
to
be
a
reflection of poor supervisory
judgement
24
There was some
testimony that
some
lab supervisors
sit
in
on
the interview process, but this
does not appear to occur in
many
cases.
123
on the part of the tutor supervisor, rather than evidence of a
lack of supervisory authority.
Most tutor supervisors continue to perform some tutoring at
a reduced level. Some, however, do no tutoring at all.
Discussion and Conclusion
The criteria for supervisory status is enumerated in section
3580.3 of the Act.
11 Supervisory employee 11 means any individual,
regardless of the job description or title,
having authority, in the interest of the
employer to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward,
or discipline other employees, or
responsibility to direct them, or to adjust
their grievances, or effectively to recommend
such action, if, in connection with the
foregoing, the exercise of such authority
is not of a merely routine or clerical
nature, but requires the use of independent
judgment.
Employees whose duties are substantially
similar to those of their subordinates shall
nOt be considered to be supervisory
employees. ·
The Board has held that the various indicia of supervisory
status are to be evaluated in the disjunctive. (Lawrence
Livermore National Laboratory (1983) PERB Decision No. 241-C-H,
Unit Determination for the State of California (1980) PERB
Decision No. ll0c-S (State of California) . 25 Nominal exercise of
the statutory criteria is not sufficient to qualify for
supervisory :_status .....T.he .employ9-e .,mu-st .. ,demenst-ra-te· independent
judgement in the exercise of these functions. (State of
25 Indicia of supervisory status in HEERA parallels that found
in the Ralph C. Dills Act (Government Code section 3513(g}).
124
California
at
p. 8.)
Independent
judgement
is
marked
by
"the
opportunity
to
make
a
choice
between
two
or
more
significant alternative
courses of
action
and
the
power
to
make
that
choice without broad review
and
approval." (State of
California
at
p.
9.)
An
employee
exercises
independent
judgement
by
demonstrating
significant
autonomy
and
control
over
the
decisionmaking
and recommendation
processes.
If
a
purported supervisor
meets
at least
one
of
the
statutory
criteria,
the
claim of supervisory
status
must
then
be
tested
against the
substantial similarity
requirements.
The
Board
has
not
applied
a
standard of percentages
in interpreting
this
requirement. Rather,
the
Board
has concluded
that
substantial similarity
occurs
at
rithe
point
at
which
the
employees'
supervisory obligation to the
employer outweighs
their
entitlement to
the
rights
forded
rank-and-file
employees."
(Id.
at
pp.
7-8.)
Where
supervisory obligations
exist to
the
degree
that
they
outweigh
rights to
organize,
an employee no
longer performs
duties substantially similar to his/her
subordinates.
Finally, in evaluation of
any
claim supervisory
status,
it
is
important
to
keep mind
the
purpose behind the
statutory
exclusion of supervisors.
[E]xclusions are designed
to prevent
a
div:.iaion
.
.of _wsupervisor.s
!
..
.,loyal
t~i-es •
that
·might
occur because of
the.
negotiating relationshipof the part
,
concerned as
it
is
with
wages, hours, and working conditions
....
(
Id
.
at
pp
. 9 1 0 . )
125
The potential for conflict of interest lies in the authority
to control personnel decisions, as distinguished from control
over work processes, which is at the core of supervisory status.
(State of California ~t p. 10.)
The University argues that tutor supervisors meet several
criteria for supervisory status. According to the University,
tutor supervisors have complete responsibility for assigning work
to tutors and evaluating them as well as having effective
authority to recommend discipline, including dismissal and hiring
authority.
The record does not support the University's claim on all of
these criteria, but it does on some. Evaluations of the tutors,
for example, does not meet the supervisory criteria for two
reasons. First, it appears to be inconsistently exercised.
Second, the evaluations appear to have little effect on any
personnel decisions impacting the tutors. The tutor supervisors
authority to recommend disciplinary action, including dismissal,
is theoretical at best and no concrete examples have been
provided.
Tutor supervisors do, however, have authority to assign
work. While much of the process app~ars -to be a collaborative
effort at building a mutually acceptable schedule, tutor
supervisors are given wide latitude to ''run the program." This
includes some budgetary and staffing decisions.
The clearest example of their supervisory authority,
however, is their ability to effectively recommend the hiring of
126
tutors. Tutor supervisors start by recruiting applicants,. then
screen applications and interview potential tutors. After the
interview process, the tutor supervisors effectively select the
tutors to be hired. They start with a candidate pool of hundreds
and make clear choices rejecting many and selecting few.
Although their selections must be approved by either lab
supervisors or the CTS director, approval is routinely given.
Some tutor supervisors do no tutoring at all. Therefore,
there is no question about them performing duties substantially
similar to their subordinates. Of the tutor supervisors who have
continued to perform tutoring duties, their authority to control
significant personnel decisions creates a supervisory obligation
to the University outweighing their entitlement to rights
afforded rank and file employees, such as tutors.
Tutor supervisors are therefore excluded from the unit as
supervisory employees.
CONCLUSION
Based upon the above findings of fact, discussion and the
entire record in this case:
1. GSRs are not employees as defined by section 3562(f) of
HEERA;
2. GSis, special readers, readers, RT/LSCs, and tutors are
employees as defined by section 3562(f) of HEERA;
3. Tutor supervisors are supervisory employees as defined
by section 3580.3 of HEERA.
127
The
unit
description
listed
in
the
PROPOSED
ORDER
below
is
appropriate
for negotiating
with the
University
at
the
Los
Angeles
campus
provided
an
employee
organization
becomes
the
exclusive
representative
of
that unit.
Pursuant
to
the
following
ORDER,
an
ection
will
be
conducted
by
the
PERB
San
Francisco
Regional
Director unless the
University·grants voluntary recognition
to Petitioner.
PROPOSED
ORDER
The
following
student
employee
unit
is
found
to
be
appropriate for
meeting
and
negotiating
at
the
Regents
the
University of
California
Los
Angeles
campus.
Shall
Include:
Graduate
Student
Instructors
Special
Readers
ReadersRemedial
Tutors
Part~Time
Learning
Skills
Counselors
Tutors
Shall
Exclude:
Graduate Student Researchers
(GSR)
Tutor Supervisors
and
all
managerial, supervisoria1
and
confidential
employees, and
All other
Employees.
APPEAL PROCESS
Pursuant
to California
Code
of Regulations,
title
8,
section
32305,
this
Proposed Decision and Order
shall
become
final unless
a
party
f a
statement exceptions with the
Board
t
at
.the-
headquart;ers,.off
is,e •Baeramento
within
20
days
service of
this
Decision. In accordance with
PERB
Regulations, the statement of exceptions should identify
by page
citation or exhibit
number
the portions of the record, any,
128
relied
upon
for
such
exceptions.
(See
Cal.
Code
of
Regs.,
tit.
8,
sec.
32300.)
A
document
is
considered
11
filed
11
when
actually
received before the close
of business
(5:00 p.m.)
on
the
last
day
set
for
filing
11
•••
or
when
sent
by
telegraph or
certif
or
Express United
States
mail,
postmarked
not
than
last
day
set
for
filing.
II
(See
Cal.
Code
of
Regs.,
tit.
8,
sec.
32135;
Code
Civ.
Proc., sec.
1013
shall
apply.)
Any
statement of exceptions
and
supporting
brief
must be
served
concurrently
with
its
filing
upon
each
party to
this
proceeding.
Proof
of service
shall
accompany
each
copy
served
on
a
party or
filed
with the
Board
f.
(See
Cal.
Code
of Regs.,
t .
8,
secs.
32300,
32305 and
32140.)
James
W.
Tamm
-~-
Administrative
Law
Judge
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