Regents of the University of California (San Francisco Interns and Residents Association/California Association of Interns and Residents/Service Employees International Union) (PERB 0993H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN 	FRANCISCO 	INTERNS 	AND
RESIDENTS 	ASSOCIATION/CALIFORNIA
ASSOCIATION OF 	INTERNS 	AND
RESIDENTS/SERVICE 	EMPLOYEES
INTERNATIONAL UNION, 	AFL-CIO,
Petitioner,
and
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Employer.
)
)
)
) 	Case No. 	SF-PC-1048-H
PERB Decision No. 	993-H
April 27, 	1993
)
)
)
)
)
)
)
)
)
)
Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by-
Vincent A. 	Harrington, 	Jr., 	Attorney, 	for San Francisco Interns
and Residents 	Association/California Association 	of 	Interns 	and
Residents/Service Employees 	International Union, 	AFL-CIO; 	Hanson,
Bridgett, 	Marcus, 	Vlahos 	& Rudy by Douglas H. 	Barton and Susan C.
Barton, 	Attorneys, 	for Regents of the University of California.
Before Blair, 	Chair; 	Hesse and Caffrey, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by 	the 	San Francisco
Interns 	and Residents 	Association/California Association 	of
Interns and Residents/Service Employees 	International Union, 	AFL-
CIO 	(SFIRA) 	of 	the PERB administrative law judge's 	(ALJ) 	denial
of 	its petition for certification 	(attached hereto) 	of a
bargaining unit 	of 	all 	housestaff 	employed 	in the 	training
programs 	in clinical 	departments 	of 	the University of 	California,
San 	Francisco.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including the proposed decision, 	transcript, 	exhibits, 	SFIRA's

appeal 	and 	the 	Regents 	of 	the University 	of 	California's 	response
thereto. 	The Board finds 	the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free 	of 	prejudicial 	error and adopts
them as 	the 	decision of 	the Board 	itself.
ORDER
The 	petition 	for 	certification 	filed 	in Case
No. 	SF-PC-1048-H is hereby DISMISSED.
Chair Blair and Member Hesse 	joined 	in 	this 	Decision.
2
2

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
SAN 	FRANCISCO 	INTERNS AND
RESIDENTS ASSOCIATION/CALIFORNIA
ASSOCIATION OF 	INTERNS AND
RESIDENTS/SERVICE 	EMPLOYEES
INTERNATIONAL 	UNION,
Petitioner,
and
REGENTS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA,
Employer.
)
)
) 	Representation
Case No. 	SF-PC-1048
PROPOSED DECISION
(4/6/92)
)
)
)
)
)
)
)
)
Appearances: 	Van Bourg, 	Weinberg, 	Roger and Rosenfeld by Vincent
Harrington, 	Attorney, 	for the San Francisco 	Interns and Residents
Association/California Association of 	Interns 	and Residents/
Service Employees International Union; 	Hanson, 	Bridget, 	Marcos,
Vlahos 	& Rudy by Douglas H. 	Barton and Susan Barton, 	Attorneys;
Office of the General Counsel by James 	Odell, 	Managing University
Counsel, 	for the Regents of the University of California.
Before JAMES W. 	TAMM, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On November 29, 	1990, 	the San Francisco Interns and
Residents 	Association/California Association of 	Interns 	and
Residents/Service 	Employees 	International 	Union 	(Petitioner)
filed 	a petition 	for 	certification 	seeking 	a 	bargaining unit 	of
all 	housestaff 	employed 	in the 	training programs 	in clinical
departments 	of 	the University of California, 	San Francisco
(UCSF). 	On January 11, 	1991, 	the Regents of the University of
California 	(UC or University) 	filed 	its 	response 	opposing the
appropriateness 	of 	the requested bargaining unit. 	The University
based 	its 	opposition upon an 	earlier decision of 	the 	Public
Employment Relations 	Board 	(PERB or Board) 	which held that 	a
systemwide bargaining unit 	of housestaff was 	appropriate. 	(In
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
}
}

the matter of 	Unit 	Determination 	for Housestaff 	Employees 	of 	the
University of California 	(1983) 	PERB Decision No. 	306-H
(Housestaff #1)1 pursuant to Chapter 	744 	of the Statutes 	of 	1978
(Higher 	Education 	Employer-Employee 	Relations Act).2)
A settlement 	conference was 	held on February 25, 	1991,
however, 	the matter remained unresolved. 	Seven days 	of 	formal
hearing were held between July 	15 	and October 8, 	1991. 	After
several party 	initiated 	continuances, 	briefs were 	filed and the
case was 	submitted for decision on February 24, 	1992.
ISSUES
(1) 	Is 	a bargaining unit 	limited to housestaff 	at UCSF
appropriate?
(2) 	If a local UCSF bargaining unit is appropriate, 	should
housestaff 	at hospitals 	not 	owned 	or 	operated by 	UCSF 	be 	included
in the 	unit?
FINDINGS 	OF FACT
UCSF 	is 	one of 	five medical 	schools 	operated by the
University. 	Within the UCSF medical 	school, 	various programs 	or
departments 	offer residencies 	in different areas 	of 	study 	(e.g.,
pediatrics, surgery, anesthesiology, internal medicine, etc.).
Each of the various 	programs 	or departments within UCSF 	operate
with a 	great deal 	of 	autonomy.
1 The 	San Francisco Interns 	and Residents' 	Association was 	a
party to this 	earlier decision.
2The 	Higher Education Employer-Employee 	Relations Act 	(Act)
is 	codified at Government Code Section 3560 	et 	seq. 	Any
statutory 	references 	are 	to 	the Government Code unless 	otherwise
specified.
N2

UCSF 	owns 	and operates 	two medical 	centers. 	The opportunity
for housestaff 	to 	gain experience 	in a 	variety of 	environments
with a diversity of patients 	and, 	expertise 	in various diagnostic
or therapeutic procedures, 	is 	limited within UCSF owned and
operated 	facilities. 	UCSF 	therefore arranges with other outside
facilities, 	such as the Veterans Administration Hospital, 	San
Francisco General Hospital or Childrens' 	Hospital, 	for housestaff
to rotate through those facilities. 	These outside 	facilities 	are
considered 	either 	"affiliated" 	or 	"integrated" 	with the 	UCSF
medical 	school, 	depending upon the amount of 	involvement 	UCSF has
in their operation. 	Virtually all programs 	at UCSF rotate
housestaff 	through 	outside 	affiliated 	or 	integrated 	facilities,
which 	are 	not 	owned or operated by 	UCSF.3
3The 	employee 	status 	of 	medical 	students while 	they are 	in
rotation assignments 	in hospitals 	not 	owned or operated by 	the
University was 	not resolved by Housestaff 	#1. 	The 	stipulations
in that 	decision provided:
The unit 	includes 	only those persons 	on the
payroll 	of 	the University of 	California 	and
working 	at hospitals 	owned 	and 	operated by
the university, 	provided that residents 	on
the payroll 	of 	the university working at the
Veterans Administration Hospital 	located 	in
San Francisco, 	California 	shall not be
excluded 	from the 	unit under the provisions
of this paragraph. 	Further, 	this 	stipulation
shall 	be without prejudice to the position of
any party as 	to whether residents 	at the 	San
Francisco General 	Hospital 	or the 	Los Angeles
County 	Harbor/UCLA 	Medical 	Center 	should 	be
included 	in the unit 	if 	and when they are put
on the payroll 	of 	the university.
In Regents 	of 	the University of California v. 	Publi	-------	c 	Employment
- -	Relations Board 	(1986) 	41 Cal.3d 601 	[224 Cal.Rptr. 	631], 	the
Court 	upheld 	the 	Board's 	earlier determination that 	housestaff
"who 	are paid by 	the 	University while participating 	in a
33

residency program at 	a 	clinical 	institution or hospital 	owned 	or
operated by the 	University" 	was 	an employee as 	defined by 	section
3562(f) 	of the Act. 	On remand 	from the Supreme Court 	(Regents 	of
the University of California 	(1986) 	PERB Decision No. 	283a-H),
the 	Board 	referred 	to 	University 	affiliated hospitals 	in 	its
decision. 	However, 	the term 	"affiliated" 	appears to have been
used by the 	Board 	in a 	generic 	sense 	and not given the
specialized meaning 	attributed 	to 	the parties 	in this 	current
litigation.
The programs 	throughout the 	UC 	system all 	receive
accreditation pursuant to 	a 	national 	accreditation organization.
The 	requirements 	for accreditation 	for 	individual programs 	are
national 	in scope. 	Therefore, 	a pediatrics program at UC Davis
will have 	similar minimum requirements 	to one at UCSF.
Individual programs are, 	however, 	able to establish their own
requirements 	for 	completion of 	a 	residency program 	above 	and
beyond those 	national 	standards.
While program educational 	requirements 	are 	similar, 	working
conditions 	may differ 	from medical 	school 	to medical 	school 	and
program to program within 	each 	school. 	Most working 	conditions
are 	controlled 	either at 	the 	systemwide 	level 	or at the program
level. 	Very 	few conditions 	are determined at the medical 	school
level. 	For example, 	salaries 	are 	set pursuant to a 	single
systemwide 	salary 	schedule 	established 	by 	the 	University's
systemwide 	administration. 	Disability 	insurance 	is 	another
example of 	control 	by 	systemwide administration. 	When 	local
housestaff 	chapters 	sought 	to 	negotiate disability 	insurance
plans with individual medical 	schools, 	the medical 	schools did
not 	have 	the 	authority 	from 	systemwide 	administration to develop
individual plans. 	As a result, 	the housestaff organizations
A4

developed 	their own plan unassociated with 	the 	University. 	There
have 	also 	been 	some 	recent 	systemwide 	efforts 	to deal with the
oppressive work hours 	of most housestaff.
Many other working conditions, 	such as on call assignments,
meal allowances, 	vacation schedules, 	sleeping room availability,
amount and types of 	support staff, 	rotation schedules, 	local
float systems, 	needle stick policies, 	moonlighting arrangements,
etc., 	are all determined by individual programs, 	rather than at
the medical 	school 	level or systemwide.
The working 	conditions 	for housestaff 	at hospitals 	not 	owned
or operated by 	UCSF 	are 	largely outside 	the 	control 	of 	the
medical 	school administration. 	However, 	on occasion, 	program
administrators 	have had 	some 	influence 	changing conditions 	at
those hospitals.
The 	Petitioner has 	dealt with 	the 	UCSF 	labor relations
administrators 	since at least 	1981-82, 	over matters 	of 	concern to
housestaff at the medical 	school. 	For the most part, 	however,
the 	concerns 	raised were 	so 	localized to 	individual programs 	that
the 	UCSF 	labor relations 	representatives 	lacked 	authority 	to
resolve 	the 	issues. 	Petitioner has 	more 	successfully dealt with
individual programs 	to attempt to resolve 	issues. 	Petitioner has
had 	only minimal 	contacts 	with 	systemwide 	labor relations
representatives 	on matters 	of 	concern to housestaff.
Allen Brill, 	Petitioner's Executive Director, 	testified that
one of the Petitioner's goals, 	since at least 	1986, 	has been to
represent housestaff 	at all of the UC medical 	schools. 	To that
un
	5

end, 	active chapters have been established at UC Irvine, 	UC Davis
and UCSF. 	It has 	also initiated contacts 	at UC Los Angeles 	and
UC San Diego.
Individual 	programs 	have 	great 	autonomy 	regarding 	admission
requirements. 	Housestaff 	are accepted 	into programs 	through
a National Resident Matching Program 	(NRMP). 	Through this
matching process, 	medical 	schools and housestaff 	all 	rank their
preferences, 	then NRMP tries 	to match housestaff preferences with
medical 	school preferences. 	To that extent, 	various 	UC medical
schools 	may compete with 	each other 	for the top 	students.
Remediation of 	individual performance difficulties 	on the
part of housestaff 	is 	handled on an 	individual program basis. 	At
UCSF, 	there is no common set of employee files 	for housestaff.
Rather, 	applications, 	evaluations and individual performance
assessments 	are maintained within the 	individual 	programs.
There 	is 	very 	little 	evidence 	of 	interchange 	among
housestaff at various 	UCSF programs. 	There 	is 	even less 	evidence
of 	interchange among housestaff 	at various 	UC medical 	schools.
DISCUSSION
The 	criteria 	for determining appropriate units 	is 	set 	forth
in section 3579(a) 	of the Act. 	The 	statute requires
consideration of numerous 	factors, 	such as 	community of 	interest,
the 	effect the proposed unit will 	have 	on the meet 	and 	confer
relationship, 	the efficiency of operations 	of the employer,
compatibility with 	the 	obligation to 	serve 	students 	and 	the
public, 	the objective of providing employees 	the right to
6

effective 	representation and 	the 	impact 	of 	fragmentation and
proliferation of units.
Section 3579(c) 	also provides:
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.
In Housestaff #1, the 	Board 	concluded 	a 	systemwide 	unit was
appropriate:
Employees 	placed within this 	unit 	are 	subject
to 	specially designed hiring 	criteria 	and
training requirements. 	Incumbents 	in each of
the proposed classifications must, 	as a
condition of their employment, 	possess an
advanced professional degree. 	Thus, 	they
share 	skills, 	education and qualifications
which 	are 	unique 	among university health-
care employees. 	They are bound by the 	common
goal 	of providing health 	services 	in
university hospitals and, 	in so doing, 	are
involved 	in a 	specialized manner with 	the
university's 	basic 	public 	service mission.
They 	are 	employed 	in university-owned 	and
operated 	hospitals 	and 	therefore 	have 	similar
working conditions, 	job duties, 	supervision
and training. 	Moreover, 	they are subject to
the 	same 	systemwide 	classification 	scheme,
wage 	scales 	and 	compensation plan.
Subsection 3579(c) 	of HEERA creates a
presumption that 	all 	employees 	within an
occupational 	group 	or 	groups 	should be
included 	in a 	single 	representation unit
unless 	there 	is 	a preponderance of 	evidence
that 	such 	a 	unit would be 	inconsistent with
the Act. 	The record reveals 	that employees
in the 	systemwide housestaff unit 	share 	a
significant 	occupational 	community 	of
interest. 	The grouping of 	employees 	on the
payroll 	of 	the university 	and working 	at 	the
hospitals 	indicated 	in the 	stipulation will
V
7

both 	facilitate 	the 	collective bargaining
process 	and promote 	the 	efficient 	operations
of the university. 	Additionally, 	the
systemwide housestaff 	unit will 	avoid
fragmentation of 	employee 	groups 	and
unnecessary proliferation of 	units.
Based 	on the 	foregoing 	facts 	and discussion,
we 	conclude that a 	systemwide unit of
housestaff 	employees who are 	on the UC
payroll 	and 	employed 	at hospitals 	indicated
in the 	stipulation is 	appropriate.
The 	Board's 	decision was 	based upon a number of 	factual
stipulations 	entered 	into by the parties 	and 	accepted by 	the
Board. 	There have been no 	significant 	changes 	to 	the 	stipulated
facts 	since the time of the earlier hearing. 	While the doctrine
of 	res 	judicata 	is 	not applicable 	and therefore does 	not bind 	the
parties 	to the earlier holding, 	the 	earlier Board decision is
certainly persuasive 	and 	entitled 	to 	great weight.4
In Regents 	of the University of California 	(1986) 	PERB
Decision No. 	586-H, 	the Board held that previous unit
determinations 	are 	binding only to 	the 	extent 	that 	circumstances
and Board precedent remain the 	same. 	In that case, 	the union
demonstrated 	substantial 	changes 	in 	the duties 	and working
conditions 	of 	the 	employees 	in question 	since the 	time of 	the
4In the 	State of California 	(Department of 	Personnel
Administration) 	(1989) 	PERB Decision No. 	727-S, 	the Board held
that 	res 	judicata was 	not applicable 	in a unit determination
proceeding 	based 	upon 	stipulations 	because 	it 	. . .
did not 	involve 	the regular type 	of 	civil 	or
administrative 	action brought 	against 	a
respondent-defendant party, 	and the 	judicial
or 	administrative 	adjudication of 	a disputed
issue 	in such an action.
8

earlier decision and was 	therefore 	granted a 	separate unit. 	In
the case at hand, 	Petitioner has not been able to do that.
While Petitioner has 	amply demonstrated 	that 	a 	local 	unit 	is
a viable unit, 	it has 	not overcome the presumption that a
systemwide unit 	is more appropriate. 	In order to rebut the
presumption of a 	systemwide unit, 	Petitioner must demonstrate by
a preponderance 	of 	the 	evidence that a 	systemwide unit 	is
inconsistent with 	the 	statutory unit 	criteria 	or the purposes 	of
the Act. 	Faced with an earlier Board decision that a 	systemwide
unit was, 	in fact, 	consistent with the Act, 	it would take a
remarkable reversal 	of 	facts 	to demonstrate 	that 	such a unit was
now 	inconsistent.
Although 	counsel 	for 	Petitioner makes 	strong arguments 	about
the 	local 	nature of 	the 	issues 	that 	arise and the difficulty of
assembling 	representatives 	from all 	the medical 	schools 	due 	to
their work schedules, 	those arguments 	are countered to a great
degree 	by 	the 	University's 	experience with 	other 	systemwide
health care units. 	Both nurses and patient 	care technical
employees 	are 	represented 	in 	systemwide bargaining units.
Systemwide 	collective 	bargaining 	agreements 	contain 	systemwide
standards 	for most 	items 	covered, 	but necessarily allow for 	local
variations 	in 	implementation when the parties 	find 	it
appropriate. 	For example, 	the agreements provide 	standards 	for
bulletin boards, 	but placement of them is a local matter, 	as are
such items as 	scheduling, 	shift assignments, 	and approval of
vacation time.
9

Therefore, 	many of the program 	issues 	could be dealt with at
a 	program 	level without the 	necessity 	of 	assembling 	statewide
negotiating teams. 	Furthermore, 	if 	similar local housestaff
units were created at each UC medical 	school, 	far more total 	time
would be 	expended dealing with the 	same 	issues 	in 	five different
sets 	of negotiations. 	A 	systemwide unit 	is 	also consistent with
Petitioner's 	goal 	of 	representing all 	housestaff within 	the 	UC
system.
CONCLUSION
Regardless 	of 	Petitioner's 	strong 	showing that 	a 	local 	UCSF
unit would be viable, 	Petitioner has 	not demonstrated that 	the
systemwide 	unit 	originally 	approved 	by 	the 	Board 	in 	Housestaff #1
is 	inconsistent with the 	statutory unit 	criteria 	or the purposes
of 	the Act. 	The petition should therefore be dismissed. 	Because
the petition is 	being dismissed, 	it 	is unnecessary to decide
whether 	housestaff 	at 	non-University 	owned 	or operated 	hospitals
are 	employees 	under the Act and/or 	should be 	included 	in a
bargaining unit.
PROPOSED 	ORDER
Based upon the 	foregoing and the 	entire record 	in this 	case,
IT 	IS 	ORDERED that the Petition for Certification filed 	in this
case is 	DISMISSED.
Pursuant to California Code of Regulations, 	title 8,
section 32305, 	this 	Proposed Decision and Order 	shall become
final unless 	a party 	files 	a 	statement of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within 	20
10

days of 	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, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Reg., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" when actually
received before the close of business 	(5:00 p.m.) 	on the 	last day
set for filing 	". 	. 	. o r when sent by telegraph or certified or
Express 	United States mail, 	postmarked not later than the last
day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of Regs., 	title 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 itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	April 6, 	1992 	1,w TammJames W. 	Tamm
Administrative 	Law Judge
11