Unit Determination for Technical Skilled Crafts, Service and Professional Employees of the University of California (Lawrence Livermore National Laboratory) (PERB 0290HA)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
IN THE MATTER OF:
UNIT 	DETERMINATION 	FOR TECHNICAL,
SKILLED CRAFTS, 	SERVICE AND
PROFESSIONAL 	EMPLOYEES 	OF 	THE
UNIVERSITY 	OF 	CALIFORNIA 	(LAWRENCE
LIVERMORE 	NATIONAL 	LABORATORY
CASUAL EMPLOYEES) 	PURSUANT TO
CHAPTER 	744 	OF THE 	STATUTES 	OF 	1978
(HIGHER 	EDUCATION 	EMPLOYER-EMPLOYEE
RELATIONS 	ACT)
Case Nos. 	SF-RR-1002-H et al.
Request 	for 	Reconsideration
PERB Decision No. 	290-H
PERB Decision No. 	290a-H
August 19, 	1983
Appearances; 	Kent Jonas, Attorney 	(Corbett, Kane, Berk & Barton)
and James N. 	Odle, 	Associate Counsel 	for 	the Regents of 	the
University 	of 	California.
Before: 	Tovar, Jaeger, Morgenstern and Burt, Members.*
DECISION
On March 	4, 	1983, 	the Public Employment Relations Board
(PERB or Board) 	issued 	a 	decision1 under 	the Higher Education
Employer-Employee 	Relations 	Act (HEERA)2, determining 	the
casual 	employees 	in 	various 	bargaining 	units at 	the 	Lawrence
Livermore National Laboratory 	(LLNL). 	Thereafter, 	the
*Chairperson Gluck 	did 	not participate 	in 	this Decision.
1In 	the Matter 	of: 	Unit Determination 	for Technical,
Skilled Crafts, 	Service 	and Professional Employees of the
University 	of 	California 	(Lawrence 	Livermore National
Laboratory Casual Employees) 	Pursuant 	to Chapter 	744 of 	the
Statutes 	of 	1978 	(Higher 	Education Employer-Employee 	Relations
Act) 	(3/4/83) 	PERB Decision No. 	290-H.
2The 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq.
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University of California 	(UC) 	filed 	a 	request 	for
reconsideration 	of 	the 	portion of 	that 	decision 	concluding 	that
LLNL 	indeterminate-time 	employees 	who 	are 	retirees 	should 	not 	be
included 	in 	the 	bargaining 	units. 	No employee 	organization
filed 	a 	response 	to UC's 	request 	for 	reconsideration.
In PERB Decision No. 	290-H, 	supra, 	the Board refused to
adopt 	a 	stipulation 	among 	the 	parties 	that 	indeterminate-time
retirees 	should 	be 	excluded 	from 	the 	various 	units 	because 	the
record 	reflected 	that 	such 	retirees, 	in 	fact, 	had 	a community of
interest 	with 	other 	unit members. 	The Board also 	stated 	that 	it
was 	reluctant 	to 	include 	retirees 	in 	the 	units 	when 	the parties
had 	expressed 	their 	preference 	for 	exclusion. 	Thus, 	the Board
construed 	the parties' 	positions 	expressed 	in 	their 	briefs 	as
tantamount 	to 	an 	amendment of 	the 	employee 	organizations'
initial 	unit 	petitions 	to delete 	indeterminate-time 	retirees,
with 	the 	concurrence of UC.
UC 	in 	its 	request 	for 	reconsideration claims 	that 	the Board
did 	not 	fairly 	interpret 	its 	position. 	It 	asserts 	its position
is 	that 	the Board 	should 	determine whether 	or 	not 	indeterminate-
time 	retirees 	are or 	are 	not 	casual. 	It does 	not 	agree 	to the
constructive 	deletion of 	these 	employees 	from 	the petitions 	of
the 	employee organizations.
Since 	the 	Board 	did 	not 	correctly 	characterize 	UC's 	position
regarding 	the 	unit 	placement 	of 	indeterminate-time 	retirees,
N	
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"extraordinary 	circumstances" 	within 	the meaning 	of PERB
Rule 	324103 	exist 	and UC's 	request 	for 	reconsideration 	is
granted. 	The employee organizations have, 	in fact, 	not deleted
the 	indeterminate-time 	employees 	from 	their 	initial 	unit
petitions, 	so 	the Board must 	determine whether 	or 	not 	such
employees 	should 	be 	included 	in or 	excluded 	from the 	unit.
As was 	stated 	in PERB Decision No. 	290a-H, 	supra,
indeterminate-time 	retired 	employees 	have 	the 	same 	benefits 	and
working 	conditions 	as 	indeterminate-time 	employees 	recruited
from 	the 	scientific 	community who 	are members 	of 	the 	various
bargaining 	units. 	The 	single difference 	that 	all of 	the
retirees 	receive pension 	and/or 	social 	security benefits, 	so
that 	their 	work 	eligibility 	is 	limited 	to 	90 	days 	of 	employment
in any one year 	at 	the 	risk of 	losing 	retirement benefits, 	is
not 	sufficient 	to distinguish 	the 	two 	types 	of 	indeterminate-
time 	employees 	and 	exclude 	the 	retirees 	from the 	unit. 	Based on
these 	facts 	and 	federal precedent, 	the Board must conclude 	that
the 	indeterminate-time 	retirees 	are 	not 	casual 	and 	include 	them
3PERB 	Rules 	are 	codified 	at California Administrative
Code, 	title 	8, 	section 31001 et 	seq. 	PERB Rule 	32410 provides:
32410. 	Request 	for Reconsideration.
(a) 	Any party 	to a decision of 	the Board
itself may, 	because of 	extraordinary
circumstances, 	file a 	request 	to reconsider
the 	decision within 	20 	days 	following 	the
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in the various bargaining 	units. 	Indianapolis Glove Co. 	v.
NLRB 	(6th Cir. 	1968) 	400 F.2d 	363 	[69 LRRM 2261]; 	Holiday Inns
(1969) 	176 NLRB 939 	[71 LRRM 1333]; 	Noesting Pin Ticket Co.
(1974) 	214 NLRB No. 	153 	[87 LRRM 1588].
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the Public Employment Relations Board ORDERS 	that 	the
University 	of 	California 	request 	for 	reconsideration of 	the
date 	of 	service 	of 	the decision. 	An
original 	and 	5 	copies 	of 	the 	request 	for
reconsideration 	shall 	be 	filed 	with 	the
Board 	itself 	in 	the 	headquarters office 	and
shall 	state 	with 	specificity 	the 	grounds
claimed and, 	where applicable, 	shall specify
the 	page 	of 	the 	record 	relied on. 	Service
and 	proof 	of 	service of 	the 	request pursuant
to Section 	32140 	are 	required. 	The grounds
for 	requesting 	reconsideration 	are 	limited
to claims 	that 	the 	decision of 	the Board
itself 	contains 	prejudicial 	errors of 	fact,
or 	newly 	discovered 	evidence 	or 	law which
was 	not previously 	available 	and 	could 	not
have 	been 	discovered 	with 	the 	exercise 	of
reasonable 	diligence.
(b) 	Any party 	shall 	have 	20 	days 	from
service 	to 	file 	a 	response 	to 	the 	request
for 	reconsideration. 	An original and 	5
copies of 	the 	response 	shall be 	filed with
the Board 	itself 	in 	the 	headquarters
office. 	Service 	and proof of 	service of 	the
response 	pursuant 	to Section 	32140 	are
required.
(c) 	The 	filing of 	a 	request 	for
reconsideration 	shall 	not operate 	to 	stay
the 	effectiveness 	of 	a decision of 	the Board
itself 	unless 	otherwise 	ordered 	by 	the Board
itself.
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unit placement of 	indeterminate-time 	retirees 	is GRANTED, 	and
that 	such 	employees 	are 	not 	casual 	and 	are 	included 	in 	the
various 	Lawrence 	Livermore 	National 	Laboratory 	bargaining
units.
By 	the BOARD
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