Unit Determination for Employees of the Regents of University of California (PERB A114HB)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
In 	the
	Matter
	of:
Unit 	Determination
	for
	Employees
of 	the
	Regents 	of
	the
	Universityof
	California.
)
)
)	
Case
	No. 	SF-RR-1002-H
	et
	al.
PERB
	Order
	No. 	Ad-114b-H
August
	4,
	1982
)
)
)
)
)
___________________
)
Appearances: 	Robert
	Bezemek,
	Attorney
	(Bennett
	&
Be2emek);
Stewart
	A.
	Weinberg,
	Attorney
	(Van
	Bourg,
	Allen,
	Weinberg	
&
Roger);
	Lawrence
	Rosenzweig,
	Attorney
	(Levy 	&	
Goldman);
Les 	Chisholm
	for
	American
	Federation 	of
	State,
	County	
&
Municipal
Employees,
	AFL-CIO;
	Kenneth 	c. 	Absalom
	for
	California
Nurses
Association;
	Glenn
	Rothner, 	Attorney
	(Reich,
	Adell	
&	
Crost);
Andrew 	Thomas
	Sinclair,
	Attorney 	for
	American
	Federation 	of
State,
	County 	and
	Municipal
	Employees,
	AFL-CIO,
	Local
	371;Thomas
	E.
	Rankin,
	Attorney 	for
	Laborer's
	International
	Union,
Local
	1276;
	Franklin
	Silver,
	Attorney
	(Beeson,
	Tayer,
	Kovach 	&
Silbert);
	Patrick
	J.
	Szymanski,
	Attorney
	(Beeson,
	Tayer,
	Kovach 	&
Silbert);
	Philip
	Callis,
	Attorney 	for
	California State
	Employees
Association;
	Jerrold
	c.
	Schaefer,
	Kent
	Jonas,
	Douglas
	Barton,Attorneys 	(Corbett,
	Kane, 	Berk 	&	
Barton);
	James 	Odle
	for 	the-
Regents 	of 	the 	University 	of
	California.
Before
	Gluck,
	Chairperson;
	Jaeger, 	Jensen,
	Morgenstern,
	and
Tovar,
	Members. 
DECISION
	AND
	ORDER
On
	April
	20, 	1982, 	the 	Public
	Employment
	Relations
	Board
issued
	PERB
	Order
	No. 	Ad-114a-H
	directing
	the 	Chief
Administrative
	Law
	Judge
	to 	conduct 	hearings 	regarding 	University
of 	California 	exclusionary 	issues, 	including 	questions 	of
managerial, 	supervisory, 	confidential, 	casual
	and
	student
status.
	Pre-hearing 	conferences
	and
	hearings 	having 	been
conducted 	in June 	and
	July,
	1982,
	at 	considerable 	cost
	and
without 	substantial 	resolution 	of 	the 	matters 	in 	dispute, 	the
Board 	now 	ORDERS:

1. 	that
	hearings
	on 	a
	day-to-day
	basis
	be
	deferred
	until
further
	pre-hearing
	inquiries
	and
	investigations
	have
	been
undertaken
	by
	the
	Director
	of
	Representation 	to
	narrow
	the
	number
of
	contested 	issues
	for
	additional
	hearing;
2.	
that
	the
	student 	exclusion
	stipulation
	dated
July
	7,
	1982,
	be
	accepted;l
3.	
that
	all
	parties
	and/or
	their
	representatives 	attend
	a
pre-hearing
	conference
	on August
	13, 	1982,
	regarding
	further
procedural 	orders 	in
	this
	case,
	including
	steps
	required 	to
implement
	the 	necessary
	inquiries
	and
	investigations.
	Said
conference
	will
	take 	place
	at
	University Hall,
	2200
	University
Avenue, 	Berkeley,,
	California,
	Room
	150
	(Regents' 	Large
	conference
Room),
	at
	10:00
	a.m. 
PER
	CURIAM
lchairperson
	Gluck
	did 	not 	take 	part 	in 	the 	considerationof
	this 	part 	of 	the 	Order.
2

STATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
In 	the 	Matter 	of:
UNIT 	DETERMINATION 	FOR
EMPLOYEES 	OF 	THE 	REGENTS 	OF
THE 	UNIVERSITY 	OF 	CALIFORNIA
(EXCLUSIONARY 	PHASE).
-----------------
)
)
) 	Case 	No. 	SF-RR-1002-H 	et 	al.
PERB 	Order 	No. 	Ad-114c-H
September 	14, 	1982
)
)
)
)
Appearances: 	James 	N. 	Odle, 	Attorney, 	and 	Judith 	Droz 	Keyes,
Attorney 	(Corbett, 	Kane, 	Berk 	& Barton) 	for 	the 	Regents 	of 	the
University 	of 	California; 	Glenn 	Rothner, 	Attorney 	(Reich, 	Adell
& Crost) 	for 	American 	Federation 	of 	State, 	County 	and 	Municipal
Employees, 	AFL-CIO; 	Philip 	E. 	Callis, 	Attorney 	(California
State 	Employees 	Association).
Before: 	Jaeger, 	Member; 	Gluck, 	Chairperson, 	Jensen 	and 	Tovar,
Members.
DECISION AND 	ORDER
On 	August 	4, 	1982 	the 	Public 	Employment 	Relations 	Board-
(hereafter 	PERB 	or 	Board) 	issued 	PERB 	Order 	No. 	Ad-114b-H. 	By
that 	Order 	the 	Board 	halted 	day-to-day 	hearings 	in 	this 	matter
pending 	further 	inquiries 	and 	investigations 	under 	the
direction 	of 	the 	director 	of 	representation. 	The 	Board 	also
provided 	that 	the 	parties 	and/or 	their 	representatives 	attend 	a
pre-hearing 	conference 	on 	August 	13, 	1982 	regarding 	further
procedural 	orders 	and 	steps 	to 	implement 	the 	necessary
investigations.
Prior 	to 	that 	conference, 	on 	August 	12, 	1982, 	the 	director
of 	representation 	issued 	the 	attached 	Pre-Hearing 	Notice 	and

Order
	for
	Investigation,
	Production
	of
	Documents, 	and
	Hearing.
Among
	other
	things,
	that
	Or_der
	requires
	all
	parties
	to
	produce
declarations
	and
	documentary
	evidence
	pursuant 	to
	an
established
	time
	schedule
	regulating
	the
	investigation 	of
exclusionary 	claims.
	The 	August 	12
	Order
	also
	provides
	a
mechanism
	for 	the
	parties
	to
	make
	motions
	for
	protective
	orders
in
	the
	event
	there 	are
	concerns
	regarding
	employee
	privacy
interests
	or 	the 	circumstances
	governing 	the 	production
	(or
inspection) 	of
	documents.
On
	August 	23, 	1982
	the 	University
	filed
	an
	administrative
appeal 	of 	the
	August 	12
	Order,
	as
	well
	as
	a
	request
	for
	a
stay.
	The
	Board-has 	concluded
	that
	the
	issues 	raised
	by
	the
University
	should
	have
	first
	been
	raised
	with 	opposing
	counsel
and
	with 	the
	director
	of
	representation
	before 	being
	presented
to
	this
	Board
	since
	by
	the
	terms
	of 	the
	August 	12 	Order 	a
protective
	order
	mechanism
	that
	would
	permit
	resolution 	of
	the
University's 	overall
	concerns
	exists.
	For
	this
	reason, 	the
requested 	stay
	and
	appeal 	are
	DENIED. 	However,
	given 	the
nature 	of 	the
	University's 	claims, 	the 	matter
	is
	hereby
referred 	to 	the 	Director 	of 	Representation 	for 	review 	and
clarification, 	if
	appropriate,
	and
	shall
	be
	treated
	as 	a
2

request
	for
	a
	protective
	order 	pursuant 	to
	the
	terms
	of 	the
August
	12
	Order.l
PER CURIAM
lNothing 	in
	this
	Order
	should
	be
	construed 	as
	a
determination
	by
	the
	Board
	that
	the
	University's
	appeal
involves 	the
	"mechanics
	of
	an
	election"
	and
	is
	therefore 	not
properly 	appealable 	pursuant 	to
	PERB
	Regulation
	32380.
	That
issue 	is
	not 	before 	the
	Board
	at 	this
	time
	since 	the 	matter
	has
been
	referred 	to 	the
	director
	of 	representation 	to 	allow 	for
the 	exhaustion 	of 	administrative
	remedies
	by
	the 	Board's
delegated 	representative.
3

"
1
'l
.•
STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
In 	the
	Matter
	of:
UNIT
	DETERMINATION
	FOR EMPLOYEESOF
	THE
	REGENTS
	OF	
'I'.BE	
UNIVERSITY
OF
	CALIFORNIA
	(EXCLUSIONARY
PHASE).
}
)
}
}
)
}
}
	_________________
)
Case
	No. 	SF-RR-10O2-H,
et
	al.
PRE-HEARING NOTICE
	AND
ORDER
	FOR
	INVESTIGATION,
PRODUCTION
	OF
	DOCUMENTS,
AND
	HEARING.
August
	12,
	1982
PLEASE
	TAKE
	NOTICE
	that
	the 	following
	ORDER,
	pursuant
	to
PERS
	Decision
	No.
	Ad-ll4b-H
	(8/4/82), 	will 	hereafter
	govern
	the
procedural
	course 	of 	the 	exclusionary
	phase
	of
	this
	proceeding.
The
	five 	steps 	outlined
	below
	will
	be
	used
	to
	arrive
	at
exclusionary 	determinations.
	Timelines
	and
	deadlines 	for
submissions 	covering
	each
	step 	are
	reflected
	on
	the
	appendix
attached 	to
	this
•Pre-Hearing.
Notice
	and
	Order.	
~;
l.
	The
	University of
	California 	will
	submit
	declarations
under
	penalty 	of 	perjury 	in
	support 	of 	each
	whole
	class
	and/or
individual
	employee
	exclusionary 	claim. 	Declarations
	must 	be
specific
	as 	to
	facts 	justifying
	the 	claim,
	and 	must 	be
	legally
sufficient
	to
	constitute
	the
	University's 	case-in-chief 	for 	the
purpose 	of 	proof
	and
	for 	cross-examination. 	Declarations 	about
these 	claims
	shall
	be 	accompanied 	by
	relevant
	documents,
	or,
alternatively,
	documents
	shall	
be 	made
	available
	for
inspection. 	(Declarations 	of 	authenticity
	may 	accompany
	the
documents 	or 	may 	be
	incorporated 	within 	the 	exclusionary 	claim
declarations.)

'i
l
!
•
I
It
•
II
ii
tt
~
'!.il
•
I•
l•!t
!
Ii
';
"i
I
\
~;
r?·
Relevant
	documents
	that
	must 	be
	produced,
	where
	available
17
include
	the 	following:
	(a)
	organizational
	charts;
	(b)
	job
descriptions;
	(c)
	evaluations 	of
	the 	person(s) 	about
	whom
	the
claim
	is
	madei 	(d)
	personnel
	actions
	taken 	involving
	someone
other
	than
	the
	person(s} 	about
	whom
	the 	claim
	is
	made
	(ee9•P
evaluations, 	appraisals,
	warnings, 	reprimands,
	corrective
discipline, 	hiring, 	transfers,
	promotions,
	.wage
	increases,
	and
grievance 	determinations;)
	{e) 	employment 	and
	personnel
	policy
statements
	and
	guidelines
	by
	and/or 	about
	the 	person(s) 	for
~hom
	the 	claim
	is	
made,	
setting
	forth
	the
	functional
relationship
	of 	said
	person(s}
	to 	the
	employer
	in
	terms
	of
exclusionary
	criteria~
The
	Univ:rsity
	is
	invited 	to
	submit
	explanatory
	memoranda
providing
	an 	overview
	of 	the 	submitted 	materials9 	Service
	and
proof 	of 	service 	of 	the
	declarations,
	documents 	and
	related
memoranda
	shall
	be 	made 	on
	the
	PE.RB
	and 	on 	employee
organizations
	with
	an
	interest
	in 	the 	relevant
	proposed
	unit
•
If
	the
	parties
	are
	unable
	to
	agree
	on
	terms, 	the
	PERB
	will
·
entertain
	motions
	for
	protective 	orders 	concerning
	employee
privacy
	and
	reasonable 	time, 	place
	and 	manner
	guidelines 	for
document
	production 	and/or 	inspection
•
2~
	Employee
	organizations 	will
	review 	the
	materials
submitted 	by 	the 	University
	and
	shall 	file
	with 	the
	PERB
	a
	list
of 	classifications
	and/or 	positions
	Which
	the 	organization 	is
prepared 	to 	stipulate 	are 	excluded 	from 	the 	unit 	in

:-\ 	question.
	Service
	and
	proof
	of
	service
	of 	the
	list
	on
interested 	parties
	are 	required.
	The iERB,
	at
	its
	discretion,
may
	schedule
	settlement
	conferences
	to
	narrow
	disputed
	issues.
3.
	Employee
	organizations
	shall
	submit
	any
	counter-
declarations
	and
	relevant
	documents,
	subject
	to 	the
	standards
described
	above
	applicable 	to
	the
	Oniversity,
	regarding
proposed
	exclusions
	not 	resolved
	by
	stipulation.
	Service
	and
proof 	of 	service
	of
	counter-declarations
	and
	related
	documents
on
	interested 	parties
	are
	required..
	A
failure
	to
	file
counter-declarations
	and
	supporting
	documents
	will
	be 	deemed 	a
waiver
	of 	opposition
	to 	the 	claim, 	unless,
	on
	the 	date
	employee
organization
	filings
	ar~
	required, 	the 	organization
	files
	its
opposition
	on
	the
	ground
	that
	a
	prima
	facie
	case
	has
	not
	been
stated
	by 	the
	University.
	Each
	claim
	opposed on
	this
	ground
must 	be
	supported 	by	
a
	statement
	identifying 	alleged
insufficiencies
	in
	the
	University's 	factual
	submission.
Service
	and
	proof 	of 	service 	of 	statements 	of
	insufficiency
	on
interested 	parties
	are 	required.
4. 	The
	PERB
	will
	conduct 	conferences 	to 	review
	the
contested 	claims
	and
	to
	arrive 	at 	settlements.
5. 	The
	PERS
	will
	examine
	the 	unresolved 	claims
	on
	the
basis
	of 	the
	totality
	of 	materials 	submitted 	by 	the
	parties
	to
determine 	whether 	a
	sufficient
	case 	has 	been
	presented 	for
transmittal 	to 	the 	Board
	itself
	for 	determination,
	or,
	whether
further 	investigation 	or 	formal 	hearing 	is 	required 	to 	resolve
disputed 	issues 	of 	fact. 
3

Notices 	of 	further 	investigation 	and/or 	hearing, 	where
necessary, 	wil.l. be 	sent 	to 	the 	parties, 	specifying 	the 	claims
upon 	which 	additional 	evidence 	shall 	be 	received. 	Thereafter,
the 	record 	pertaining 	to 	any 	unresol~ed 	claim 	shall 	be
transmitted 	directly 	to 	the 	Board 	itself 	for 	determinations
Dated: 	August 	12, 	1982 ~~T 	E. 	CA.RAWAr'
rtrr'ec tor 	of 	Representation 	0

APPENDIX
(Case No. SF-RR-1002-H,
{et al.
(PRE-BEARING NOTICE AND
(ORDER FOR INVESTIGATION,
(PRODUCTION OF DOCUMENTS,
(AND HEARING.
(August 12, 1982
(
The process of developing the record in this proceeding will be
divided into three phases as follows:
Phase I LLNL Proposed Units:
(1) Clerical
(2) Skilled Crafts
(5) Professional
Phase II - (10} Patient Care
(11) Professional Health Care
(12) Librarian
(14) Staff Administrative
Phase III - ( 6) Clerical
(7) Skilled Crafts
{8) Technical
(9) Service
(13) Non-Academic-Senate Academic
and Allied
General timelines and due dates for the various required
submissions will be as follows unless modified pursuant to a
subsequent order:
Phase I 	Phase II 	Phase III
Step 1 	Due 9/27/82 	oue 11/1/82 	Due 	12/13/82
Step 2 	Due 10/11/82 	Due 	11/19/82 	Due 	1/7/83
Step 3 	Due ll/5/82 	Due 	12/17/82 	Due 2/4/83
Step 4 	ll/8/82-11/19/82 	l/3/83-1/14/83 	2/7/83-2/18/83
Step 	5 	ll/22/82-12/17/82 	l/17/83-2/4/83 	2/21/83-3/11./83
5