Regents of the University of California Professional Scientists and Engineers (Lawrence Livermore National Laboratory) (PERB 0246H)

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
In 	the Matter 	of:
UNIT 	DETERMINATION 	FOR
PROFESSIONAL 	SCIENTISTS 	AND
ENGINEERS, LAWRENCE LIVERMORE
NATIONAL LABORATORY, OF THE
UNIVERSITY OF 	CALIFORNIA PURSUANT
TO CHAPTER 744 OF 	STATUTES OF 	1978
(HIGHER EDUCATION EMPLOYER-EMPLOYEE
RELATIONS 	ACT)
Case NOS.
SF-PC-1001 	et 	al.
PERB Decision No. 	246-H
September 	30, 	1982
Appearances: 	Christine Bologna, 	Attorney 	for 	California State
Employees 	Association 	and 	California 	State Employees
Association/Society of 	Professional 	Scientists 	and Engineers;
Hirsch Adell, 	Attorney 	(Reich, 	Adell and Crost) 	for American
Federation of State, County and Municipal Employees, 	AFL-CIO;
Douglas Barton, 	Kent Jonas and Terry Lewis, Attorneys 	(Corbett,
Kane and Berk) 	and James N. 	Odle, 	Attorney, 	for 	the Regents of
the University 	of California.
Before: 	Tovar, Jaeger, Morgenstern and Jensen, Members.*
DECISION
Under 	subsection 	3563(a) 	of 	the Higher Education
Employer-Employee Relations Act 	(HEERA or Act),l 	the 	Public
Employment Relations Board 	(PERB or Board) 	is charged with 	the
*Chairperson Gluck did 	not participate 	in 	this decision.
1HEERA 	is 	codified 	at 	Government Code 	section 	3560
et 	seq. 	All 	statutory references 	are 	to 	the Government Code
unless otherwise 	specified. 	Subsection 	3563(a) 	provides:
This 	chapter 	shall 	be administered by 	the
Public Employment Relations Board. 	In
administering 	this 	chapter 	the 	board 	shall
have 	all 	the 	following rights, 	powers,
duties 	and 	responsibilities:
(a) 	To determine 	in disputed cases, or
otherwise approve, 	appropriate units.
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responsibility 	to 	determine 	appropriate 	units 	for
representation. 	Pursuant 	to 	that 	responsibility, 	hearings 	have
been held 	before 	administrative 	law 	judges 	(ALJs) 	of 	the Board
regarding 	petitions 	filed 	and 	positions 	taken 	by 	various 	labor
organizations 	as 	to appropriate groupings of 	employees.
Administrative 	Law Judge 	Terry Filliman 	issued 	his
recommendation 	to 	the 	Board 	regarding 	professional 	employees 	on
February 	2, 	1982. 	That 	recommendation 	is 	incorporated 	by
reference 	herein. 	Following 	issuance 	of 	that 	recommendation,
the 	parties 	were 	invited 	to 	brief 	their 	positions 	thereon 	to
the Board 	itself. 	After 	careful 	consideration of 	the 	record 	as
a whole, 	including 	the pre- 	and post-recommendation 	briefs 	by
the parties, 	the Board has 	determined 	that 	a unit consisting of
all professional 	scientists 	and engineers, 	excluding
professional 	administrative 	and 	support 	classifications,
employed 	by 	the Regents 	of 	the University of California
(University) 	at 	the Lawrence Livermore National Laboratory
(LLNL) 	constitutes an appropriate 	unit 	for meeting and
conferring within 	the meaning of 	the Act.
DISCUSSION
California 	State Employees Association/Society 	of
Professional Scientists 	and Engineers 	(CSEA/SPSE) 	proposes 	a
unit 	composed 	of 	approximately 	2700 professional 	employees 	of
the University 	at 	LLNL 	in 	scientific 	and 	engineering
classifications. 	This 	unit would 	include 	all 	professional
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employees 	at LLNL 	except 	the 	approximately 	230 	to 	400
incumbents 	of 	administrative 	and 	support 	services
classifications.
The ALJ 	recommended 	that 	a 	unit 	of 	all professional
employees 	at LLNL 	be 	created 	(ALJ's Recommendations,
pp. 	45-52). 	The University substantially agrees with his
recommendation, 	except 	that 	it 	seeks 	to 	include certain
classifications 	not 	recommended 	for 	inclusion 	by him.
CSEA/SPSE 	adhered 	strenuously 	to 	its 	initial 	position 	that 	a
unit 	comprised 	solely 	of 	scientific 	and 	engineering
classifications 	is 	appropriate. 	CSEA/SPSE 	is 	the only labor
organization 	currently 	seeking 	to 	represent 	the 	professional
employees 	at LLNL.
The 	issue 	which we must decide 	is whether 	the
petitioned-for 	unit is 	appropriate 	as 	requested, 	or 	whether 	it
is 	inappropriate 	absent 	inclusion of 	the 	administrative 	and
support professionals. 	If we were 	to conclude 	that 	the
administrative 	and 	support 	professionals 	would 	not 	constitute
an appropriate 	residual 	unit, 	or 	that 	the 	unit as 	requested
would 	result 	in 	undue proliferation, 	we would be 	inclined 	to
dismiss 	the 	petition of 	CSEA/SPSE 	and 	leave 	the 	professional
employees 	of 	LLNL 	ununitted 	in 	the 	absence of 	a 	request 	to
represent 	them 	in an appropriate 	grouping.
We 	have 	considered 	the ALJ's 	recommendations 	in 	light 	of
post-recommendation 	positions 	of 	the 	parties 	and 	the 	record 	as
W
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a 	whole, 	and 	adopt 	his 	factual 	findings 	and 	recommendations
only 	insofar 	as 	they 	are 	consistent 	herewith. 	We 	are 	persuaded
that 	the 	scientists 	and 	engineers 	requested 	by 	CSEA/SPSE
possess 	an 	internal 	and 	occupational 	community of 	interest 	as
described 	in 	subsection 	3579 	(a).2 Thus, 	these 	employees 	are
2subsection 	3579 provides, 	in pertinent part, 	as 	follows;
(a) 	In 	each 	case where 	the 	appropriateness
of 	a 	unit 	is 	an 	issue, 	in 	determining 	an
appropriate 	unit, 	the 	board 	shall 	take 	into
consideration 	all 	of 	the 	following 	criteria:
(1) 	The 	internal 	and 	occupational
community 	of 	interest 	among 	the
employees, 	including, 	but not limited
to, 	the 	extent 	to which 	they perform
functionally 	related 	services 	or 	work
toward 	established 	common goals, 	the
history 	of 	employee 	representation 	with
the 	employer, 	the 	extent 	to which 	such
employees 	belong 	to 	the 	same 	employee
organization, 	the 	extent 	to which 	the
employees 	have 	common 	skills, 	working
conditions, 	job duties, or similar
educational 	or 	training 	requirements,
and 	the 	extent 	to 	which 	the 	employees
have 	common 	supervision.
(2) 	The 	effect 	that 	the 	projected 	unit
will 	have 	on 	the 	meet 	and 	confer
relationships, 	emphasizing 	the
availability 	and 	authority 	of 	employer
representatives 	to 	deal 	effectively
with 	employee 	organizations
representing 	the 	unit, 	and 	taking 	into
account 	such 	factors 	as 	work 	location,
the 	numerical 	size 	of 	the 	unit, 	the
relationship 	of 	the 	unit 	to
organizational 	patterns 	of 	the 	higher
education 	employer, 	and 	the 	effect 	on
the 	existing 	classification 	structure
or 	existing 	classification 	schematic 	of
dividing 	a 	single 	class 	or 	single
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engaged 	in 	applied 	or 	pure 	scientific 	research. 	They 	possess
common 	scientific 	skills, 	and 	share 	similar 	education 	and
classification 	schematic 	among 	two 	or
more 	units.
(3) 	The 	effect 	of 	the 	proposed 	unit 	on
efficient 	operations 	of 	the 	employer
and 	the 	compatibility 	of 	the 	unit 	with
the 	responsibility 	of 	the 	higher
education 	employer 	and 	its 	employees 	to
serve 	students 	and 	the 	public.
(4) 	The 	number 	of 	employees 	and
classifications 	in a proposed 	unit, 	and
its 	effect 	on 	the 	operations 	of 	the
employer, 	on 	the objectives 	of
providing 	the 	employees 	the 	right 	to
effective 	representation, 	and on 	the
meet 	and 	confer 	relationship.
(5) 	The 	impact on 	the meet 	and 	confer
relationship 	created 	by 	fragmentation
of 	employee 	groups 	or 	any 	proliferation
of 	units 	among 	the 	employees 	of 	the
employer.
(b) 	There 	shall 	be 	a presumption 	that
professional 	employees 	and 	nonprofessional
employees 	shall 	not 	be 	included 	in 	the 	same
representation unit. 	However, 	the
presumption shall 	be 	rebuttable, 	depending
upon 	what 	the 	evidence 	pertinent 	to 	the
criteria 	set 	forth 	in 	subdivision 	(a)
establishes.
(c) 	There 	shall 	be 	a presumption 	that 	all
employees 	within 	an 	occupational 	group or
groups 	shall 	be 	included 	within 	a 	single
representation unit. 	However, 	the
presumption 	shall 	be 	rebutted 	if 	there 	is 	a
preponderance 	of 	evidence 	that 	a 	single
representation 	unit 	is 	inconsistent 	with 	the
criteria 	set 	forth 	in 	subdivision 	(a) 	or 	the
purposes 	of 	this 	chapter.
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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training 	requirements, 	as 	reflected 	in 	the 	record. 	They share
common 	supervision 	and 	a 	common 	system of 	reporting, 	through 	a
matrix 	structure, 	which 	differentiates 	them 	from virtually 	all
of 	the 	employees 	in administrative 	and 	support 	roles.
As 	noted 	above, 	there 	is 	universal 	agreement 	among 	the
parties 	that 	LLNL 	employees 	should 	be 	unitted 	separately 	from
the other 	employees of 	the University. 	We 	agree 	that 	it 	is
appropriate 	to do so, 	for 	the 	reasons 	cited 	by 	the parties 	and
reiterated 	by 	the ALJ. 	Once 	having 	separated 	LLNL
professionals 	from other 	professional 	employees 	in 	the
University system, 	the 	argument 	that 	the 	residue 	of
administrative 	and 	support professionals 	is 	too 	small 	to
constitute a potentially appropriate 	residual 	unit, 	or 	that 	it
would 	amount 	to undue 	unit proliferation 	to 	allow 	for 	the
potential 	of 	such 	a 	residual 	unit 	to 	be 	created 	in 	the future,
loses 	much of 	its 	vitality. 	The 	administrative 	and 	support
classes 	not 	sought by CSEA/SPSE 	constitute 	approximately 	10 	to
20 percent 	of 	the 	total professional complement 	at LLNL. 	While
they 	interact with 	scientists 	and engineers, 	largely 	in a
coordinative 	and 	supportive 	role, 	this 	interaction does 	not
evidence a community of 	interest 	in 	and 	of 	itself. 	If 	these
employees 	are 	left 	ununitted 	at 	this 	time, 	the potential 	exists
for 	two 	units 	of LLNL professionals 	instead 	of one. 	This 	does
not 	constitute 	undue proliferation within 	the 	meaning 	of 	HEERA,
nor 	are 	we 	convinced by 	the 	record 	that 	it 	would 	unduly hamper
the 	efficient 	operations 	of 	the 	University or 	have 	an 	adverse
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effect on meet and confer 	relationships. 	Thus, 	while a 	unit
comprised 	solely 	of 	scientific 	and 	engineering 	classifications
may not 	be 	the 	ultimate, 	best or only appropriate configuration
for LLNL professionals, 	we are convinced, 	based 	upon a thorough
examination 	of 	the 	record 	and 	party positions 	in light 	of 	the
statutory criteria, 	that 	it 	is an appropriate grouping. 	It
-
will 	serve 	to provide 	the 	employees 	sought with 	the 	right 	to
effective 	representation, 	and will 	not deprive 	the 	residue 	of
employees 	at LLNL 	of 	their 	right 	to 	remain 	unrepresented or 	to
seek 	exclusive 	representation 	in 	the 	future 	should 	they 	desire
to do so.
Disputed 	Classifications
The ALJ 	failed 	to 	include 	five 	classifications 	in 	the
unit. 	These 	five classifications were not petitioned for, 	and
no party seeks 	to 	represent 	them. 	They 	are 	the 	administrative
planner 	(163), 	post-doctoral research staff member 	(220),
planner-estimator 	(355), 	division/department administrator 	I
(467) 	and division/departmental specialist I 	(468). 	An
examination of 	the 	limited 	evidence 	available 	in 	the 	record
regarding 	these 	classes 	indicates 	an 	insufficient 	basis 	to
place 	any of 	them 	in a scientists 	and 	engineers 	unit, 	as 	they
appear 	to lack 	a 	community 	of 	interest 	with 	the 	scientists 	and
engineers.
The medical 	laboratory 	technologist 	(750) 	and 	occupational
health 	nurse 	similarly 	appear 	to 	be 	support 	staff, 	and 	lack 	a
community of 	interest with 	the 	"200" 	and 	"300" 	series
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employees. 	We conclude 	that 	it would 	be 	inappropriate 	to
include 	them 	in 	the 	scientists 	and 	engineers 	unit.
ORDER
Based 	upon 	the 	foregoing Decision 	and 	the 	record 	as 	a
whole, 	the Public Employment Relations Board 	hereby ORDERS:
1. 	All 	professional 	scientists 	and engineers 	employed 	by
the Regents 	of 	the University of 	California 	at 	Lawrence
Livermore 	National 	Laboratory 	constitute 	an 	appropriate 	unit
for 	the purpose of 	meeting 	and 	conferring 	in 	good 	faith
pursuant 	to Government Code 	section 	3560, 	et 	seq. 	The
inclusions 	in 	this 	unit are 	set 	forth 	in 	the 	attached 	appendix.
2. 	Any 	technical 	errors 	in 	this ORDER shall 	be 	presented
to 	the 	director 	of 	representation who 	shall 	take 	appropriate
action 	thereon 	in 	accordance 	with 	this Decision.
3. 	The 	appropriate 	unit described 	above 	shall 	exclude
managerial, 	supervisory and 	confidential 	employees 	of 	the
Regents 	of 	the University of 	California.
4. 	The Board 	hereby ORDERS 	a 	representation 	election 	in
this 	unit 	and 	the 	general 	counsel 	is 	hereby directed 	to proceed
in 	accordance with California Administrative Code, 	title 	8,
part 3, 	division 4.
By 	the 	BOARD
CO	
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APPENDIX
PROFESSIONAL SCIENTISTS AND ENGINEERS, 	LLNL
Code 	Job 	Title
221 	Biochemist
225 	Biomedical 	Scientist
228 	Biologist
230 	Environmental 	Scientist
235 	Biophysicist
242 	Chemist
249 	Engineer
256 	Mathmetician
263 	M.D.
265 	Metallurgist
270 	Physicist
277 Physiologist
285 Computer 	Scientist/Mathematical 	Programmer
290 Patent 	Advisor
350.0 Technical 	Associate
350.1 Technical Associate, 	Senior
351.0 Design 	Associate
351.1 Design Associate, 	Senior
354 Technical/Scientific 	Coordinator
l