Regents of the University of California (Hospital and Health Care Workers Local 250, Service Employees International Union) (PERB 1039H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HOSPITAL AND 	HEALTH CARE WORKERS,
LOCAL 250, 	SEIU, AFL-CIO,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-311-H
PERB Decision No. 	1039-H
March 8, 	1994
HOSPITAL AND 	HEALTH CARE WORKERS,
LOCAL 250, 	SEIU, AFL-CIO,
Petitioner,
and
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Employer.
Case No. 	SF-PC-1049-H
Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg, 	Attorney, 	for Hospital and Health Care Workers, 	Local
250, 	SEIU, AFL-CIO; Hanson, 	Bridgett, Marcus, Valahos & Rudy by
Douglas H. 	Barton, 	Attorney, 	for Regents of the University of
California.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case is before the Public Employment
Relations Board 	(PERB or Board) 	on appeal by the Regents 	of
the University of 	California 	(UC) 	and the Hospital 	and Health
Care Workers, 	Local 250, 	SEIU, 	AFL-CIO 	(Local 250) 	to a PERB
administrative 	law judge's 	(ALJ) 	proposed decision. 	In the
decision, 	the ALJ denied Local 	250's 	request 	for a 	single
bargaining unit 	of 	employees at 	the Mt. 	Zion Hospital 	and Medical
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Center 	(Mt. 	Zion) 	of UC San Francisco 	(UCSF). 	The ALJ did find
that a separate unit 	of pharmacists at Mt. 	Zion would constitute
an appropriate 	bargaining unit.
The 	Board has 	reviewed the entire 	record in this 	case,
including the proposed decision, 	transcripts, 	exhibits and
exceptions 	and heard oral 	argument 	by 	the parties.1 We 	affirm
in part 	and reverse 	in part 	the ALJ's 	proposed decision 	for 	the
reasons 	set 	forth below.
PROCEDURAL 	BACKGROUND
On July 9, 	1990, 	Local 250 	filed a representation petition
under 	the 	Higher 	Education 	Employer-Employee 	Relations 	Act
(HEERA)2 requesting recognition of a bargaining unit described
as 	approximately 200 	employees 	in 51 	job 	classifications 	at
Mt. 	Zion. 	UC opposed the petition and PERB 	found proof 	of
support inadequate. 	On March 19, 	1991, 	Local 250 	filed a second
representation petition 	seeking 	certification which was 	found by
PERB 	to have adequate 	support.
On July 18, 	1990, 	Local 250 	filed an unfair practice charge
alleging the violation of HEERA section 3571(a), 	(b), 	(c) 	and
(d) .3 The PERB general 	counsel 	issued a complaint alleging:
1Member Caffrey was 	substituted on the panel. 	He was
present 	during 	the 	oral 	argument 	and had benefit 	of 	all
transcripts 	of 	the proceedings.
2HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government 	Code.
3HEERA section 3571 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	higher education
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(1) 	UC was a 	successor employer of Mt. 	Zion employees 	and UC's
refusal 	to 	recognize 	the union violated HEERA section 	3571(c);
(2) 	UC's 	assignment 	of Mt. 	Zion employees 	to three 	systemwide
bargaining units 	(clerical 	and allied, 	service 	and patient 	care
technical) 	provided unlawful 	assistance 	and 	support 	to 	the
American 	Federation of 	State, 	County and Municipal 	Employees,
AFL-CIO 	(AFSCME) 	in violation of HEERA section 3571(d); 	and 	(3)
UC's 	conduct 	independently violated HEERA section 	3571(a) 	and
(b) .
employer 	to 	do 	any 	of 	the 	following:
(a) 	Impose 	or 	threaten to 	impose 	reprisals
on 	employees, 	to discriminate 	or 	threaten 	to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to engage 	in meeting and
conferring 	with 	an 	exclusive 	representative.
(d) 	Dominate 	or 	interfere with 	the
formation 	or administration 	of 	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in any way 	encourage
employees 	to 	join 	any 	organization 	in
preference 	to another. 	However, 	subject 	to
rules 	and 	regulations 	adopted by 	the 	board
pursuant 	to 	Section 	3563, 	an employer 	shall
not 	be 	prohibited 	from permitting 	employees
to 	engage 	in meeting 	and 	conferring 	or
consulting 	during 	working 	hours 	without 	loss
of 	pay 	or benefits.
After UC answered, 	and 	settlement 	conferences 	failed, 	by
mutual 	consent 	of 	the parties, 	the matters 	were 	consolidated 	for
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a 	hearing 	which was 	held 	during April 	and 	June 	1991. 	Matters
were 	submitted 	for decision on December 2, 	1991, 	and 	the 	PERB
ALJ's 	proposed decision was 	rendered 	on October 	6, 	1992.
The 	ALJ 	found 	the 	unit 	requested by 	Local 	250 	to 	be
inappropriate 	under 	HEERA 	section 	35794 and 	dismissed 	the
4HEERA section 	3579 	states, 	in pertinent part:
(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 	the 	employees 	belong 	to
the 	same 	employee 	organization, 	the 	extent
to 	which 	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 	arid 	confer 	relationships,
emphasizing 	the 	availability 	and 	authority 	of
employer 	representatives 	to 	deal 	effectively
with 	employee 	organizations 	representing 	the
unit, 	and 	taking 	into account 	factors 	such
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 	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
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petition 	in part. 	The ALJ 	granted 	the petition with 	respect 	to a
separate unit 	consisting 	of 	two pharmacist 	classes 	at M t . 	Zion,
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 with
the purposes 	of 	this 	chapter.
(d) 	Notwithstanding 	the 	foregoing provisions
of 	this 	section, 	or any other provision 	of
law, 	an appropriate 	group 	of 	skilled 	crafts
employees 	shall 	have 	the 	right 	to be 	a
single, 	separate unit 	of 	representation.
Skilled 	crafts 	employees 	shall 	include, 	but
not 	necessarily be 	limited 	to, 	employment
categories 	such as 	carpenters, 	plumbers,
electricians, 	painters, 	and operating
engineers. 	The 	single unit 	of 	representation
shall 	include 	not 	less 	than 	all 	skilled
crafts 	employees 	at 	a 	campus 	or 	at 	a 	Lawrence
Laboratory.
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finding 	that 	they would 	constitute 	an appropriate 	unit 	for 	the
purposes 	of 	HEERA. 	The unfair practice 	charge 	filed by Local 	250
was 	dismissed.
RELEVANT 	FACTUAL 	SUMMARY
A brief 	review of 	the 	relevant 	facts 	in this 	case 	is
necessary to 	focus 	on the primary 	issues 	raised. 	UCSF purchased
Mt. 	Zion on July 1, 	1990, 	after extensive negotiations which
began 	in 	1988. 	The development 	of 	the UCSF 	facilities are
briefly traced. 	UCSF has a long history which, 	for our purposes,
began in 1955 with the opening of Moffett Hospital 	(Moffett), 	the
Ambulatory Care Center in 1972, 	and Long Hospital 	(Long) 	in 1983.
Langley-Porter Psychiatric Hospital 	(Langley-Porter) 	was 	added 	in
1973. 	Moffett, 	Long, 	the Ambulatory Care Center and Langley-
Porter are adjacent 	to each other in Parnassas 	Heights 	in
San 	Francisco. 	Other 	facilities 	located away 	from the 	UCSF
campus 	include 	the Mission Center Facility, 	which houses
financial 	planning and marketing activity as 	well 	as 	computer
and data processing systems; 	Oyster Point, 	which has 	laundry
facilities; 	Children's Hospital 	in San Francisco; 	and outpatient
services 	in Daly City and Santa Rosa. 	Various 	other 	facilities
that 	support 	UCSF are 	located 	in San Francisco. 	UCSF had a
cooperative 	relationship with Mt. 	Zion and 	rotated 	students
through the hospital 	as part 	of 	their resident program. 	Mt. 	Zion
is 	located approximately a mile 	and a half 	from the Moffett 	and
Long locations.
Offers 	of employment were sent by UC to all Mt. 	Zion
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employees 	in May 1990, 	prior to transfer of 	the 	facility to UC
ownership 	in July. 	The 	offers 	of 	employment 	advised employees
that 	there would be no loss 	of wages, 	seniority or benefits,
and where wage 	rates were 	in excess 	of UC rates, 	employees would
be 	"red circled" 	and not 	suffer a pay reduction. 	In addition,
employees 	were advised that UC policies, 	practices 	and labor
contracts 	relating 	to employee 	compensation, 	classification
and conditions 	of 	employment would govern. 	Employees were
informed that, 	as UC employees, 	they would be represented
by AFSCME, 	the 	exclusive 	representative 	for the applicable
bargaining units. 	By July 1, 	1990, 	approximately 1,400 Mt. 	Zion
employees 	had 	signed and 	returned 	their 	job 	offers 	indicating
they accepted UC 	employment 	under 	the 	terms 	and 	conditions 	of
employment 	stated 	in the May 	1990 	offer.
UCSF has made a determined effort 	to 	integrate Mt. 	Zion
into the UCSF system since 	its acquisition. 	Mt. 	Zion has
been 	integrated 	into 	the 	system in the areas 	of 	contract 	and
marketing, 	finance and budget, 	personnel and labor relations,
information systems, 	pharmaceutical services, 	material and
support services, 	and nursing. 	There 	is nothing in the record
to 	indicate 	that 	the goal 	of 	establishing standards 	of 	care
at Mt. 	Zion, 	consistent with the other facilities within the
San Francisco system, 	has not been achieved. 	We 	find that
Mt. 	Zion has become an integral part 	of 	the UCSF Medical 	Center
(UCSFMC).
7
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ALJ'S 	PROPOSED DECISION
The ALJ stated 	the 	issues 	in this 	case as 	follows:
(1) 	Whether Local 	250 has petitioned for
an appropriate 	unit?
(2) 	Is 	the University a successor employer
to any of 	the 	former Mt. 	Zion employees?
At 	the 	outset 	the ALJ 	concluded 	that 	the 	successor-accretion
principles 	of 	labor 	established as 	precedents by 	the National
Labor Relations 	Board 	(NLRB) 	under the National 	Labor Relations
Act 	(NLRA) 	and sanctioned by the Supreme Court5 are, 	as a matter
of public policy, 	applicable 	to the 	facts 	in this 	case because
HEERA is 	a 	collective bargaining 	statute. 	HEERA is 	silent with
respect 	to 	PERB's 	authority 	to 	enforce 	a preexisting 	labor
relationship upon a public 	educational 	institution which
purchases a private business. 	However, 	the ALJ noted that
the 	Legislature 	has 	specifically provided 	for 	such authority
in another situation.6
5NLRB v. 	Burns Security Services 	(1972) 	406 U.S. 	272
[32 L.Ed.2d 61]; 	Howard Johnson Co. 	v. 	Hotel Employees 	(1974)
- - -	417 U.S. 	249 	[41 L.Ed.2d 46]; 	Fall River Dyeing & Finishing
Corp. v. 	NLRB 	(1987) 	482 U.S. 	27 	[96 L.Ed.2d 22].
6Section 30753 	of 	the 	Public Utilities 	Code adopted 	in 	1964
(added by Stats. 	1964, 	1st Ex.Sess., 	c. 	62, p. 277, 	sec. 	1)
states:
(a) 	Whenever the district acquires existing
facilities 	from a publicly 	or privately 	owned
public utility, 	either in proceedings 	in
eminent domain or otherwise, 	the district
shall 	assume and observe 	all 	existing 	labor
contracts, 	and to the extent necessary for
operation of 	facilities acquired, 	all 	of 	the
employees 	of 	such acquired public utility
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whose duties pertain to 	the 	facilities
acquired, 	shall 	be appointed to 	comparable
positions 	in the 	district 	without
examination, 	subject 	to all 	the rights and
benefits 	of 	this part, 	and these employees
shall be given sick leave, 	seniority, 	pension
and vacation credits 	in accordance with 	the
records 	and labor agreements 	of 	the acquired
public 	utility.
(b) 	Members and beneficiaries 	of any pension
or 	retirement 	system or 	other benefits
established by 	that 	public 	utility 	shall
continue to have the rights, 	privileges,
benefits, 	obligations and status with respect
to 	such established system. 	No employee 	of
any acquired public 	utility 	shall 	suffer any
worsening of his wages, 	seniority, 	pension,
vacation 	or other benefits 	by 	reason 	of 	the
acquisition.
The purpose 	of 	successorship 	is 	to 	require a 	successor
employer 	to bargain 	in good 	faith with 	the 	labor organization
that 	represented 	its predecessors work 	force where a majority of
the work 	force becomes 	a part 	of 	the 	successor 	entity and 	retains
substantially 	its 	identity and 	it 	remains 	an appropriate 	unit
under 	the applicable 	law. 	The ALJ reasoned that 	the 	criteria
established under HEERA section 	3579 	precludes 	such a 	result.
Here, 	Local 	250 	seeks 	to represent a single employee unit
with 	three 	separate bargaining histories 	and 	51 	separate 	job
classifications. 	Since July 1, 	1990, 	these employees have been
added 	to 	and 	integrated 	into 	the 	existing UC bargaining 	structure
which was 	established by PERB 	in 1982.7 At 	that 	time, 	applying
7Unit Determination 	for Employees 	of 	the University of
California 	(1982 and 1983) 	PERB Decision Nos. 	241-H, 	241a-H,
241b-H, 241C-H 	(technical); 244-H, 	244a-H, 244b-H (clerical);
245-H, 	245a-H, 	245b-H, 245C-H, 	245d-H 	(service); and 248-H,
248a-H, 	248b-H 	(professional patient care).
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HEERA section 3579, 	which 	includes 	some 25 	separate 	criteria,
PERB established a number of 	systemwide units 	of 	clerical,
service and patient 	care 	technical 	employees. 	Those units
are 	currently 	represented by AFSCME. 	PERB also 	established a
systemwide 	residual 	unit 	of 	patient 	care professionals 	which
includes pharmacists. 	This unit 	is 	currently unrepresented.
In Unit 	Determination 	for Technical 	Employees 	of 	the University
of California 	(1982) 	PERB Decision No. 	241-H, 	Local 250 was
instrumental 	in 	convincing 	PERB 	to 	establish a patient 	care
technical 	unit 	separate 	from the 	systemwide 	technical 	unit 	at
UC. 	In granting the petition in that 	case, 	PERB stated:
Employees 	in this unit 	are primarily
technicians 	involved 	in providing 	health
services 	to patients 	at 	the University's
medical 	centers, 	student health facilities,
and hospitals. 	These 	employees 	are directly
concerned with 	the 	delivery 	of 	health 	care
services, 	and thus perform tasks not directly
related 	to 	the University's 	basic 	educational
mission. 	Hence, 	these employees share an
internal 	community of 	interest which
separates 	them from technical 	employees 	in
other units we have 	created. 	In addition,
we 	include 	in the patient 	care 	technical 	unit
those 	classifications 	of 	hospital 	clerical
and 	service 	employees 	who have 	direct 	contact
with patients 	and work closely with, 	or are
under supervision of, 	patient 	care 	technical
or professional 	employees. 	[Pp. 	11-12.]
In the 	instant 	case, 	the ALJ correctly stated:
Bargaining units 	created by 	the 	Board,
after 	it 	applies 	the 	statutory criteria,
have a presumptive validity, 	and there 	is a
rebuttable presumption 	favoring 	those 	units.
A petitioner 	seeking 	to 	alter 	the 	existing
bargaining unit 	structure must 	show that
the proposed unit 	is more 	appropriate 	than
the 	Board-established units 	by producing
sufficient 	evidence 	to overcome 	the
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presumption. 	Absent 	an adequate 	evidentiary-
showing which rebuts the presumption, 	the
existing units must be maintained. 	(State
of 	California 	(Department 	of 	Personnel
Administration 	(1990) 	PERB Decision
No. 	794-S.) 	[Pp. 	68-69; 	original emphasis.]
The ALJ 	found 	that 	the 	record does 	not 	contain 	sufficient
evidence 	to rebut 	this presumption. 	Accordingly, 	the ALJ
determined that: 	(1) 	In seeking to represent pharmacists and
employees 	in clerical, 	service and patient 	care 	technical 	classes
in a single unit, 	Local 	250's petition splits 	occupational
classes which is 	contrary to HEERA section 3579(e). 	These same
classes are not 	only used at UCSFMC, 	but also at UCSF worksites,
four UC medical 	centers, 	and at 	the 	four remaining 	campuses.
(2) 	The petition violates HEERA section 3579(b) 	presumptions
against 	combining 	professional 	and 	nonprofessional 	employees
in 	the 	same bargaining unit by 	including 	the pharmacists. 	No
evidence 	demonstrates 	a 	community of 	interest between pharmacists
and professional 	employees, 	with the 	remaining nonprofessional
Mt. 	Zion employees who were 	represented 	in separate bargaining
units under separate 	contracts. 	Accordingly, 	the ALJ denied
Local 	250's 	request 	for a single unit of employees at Mt. 	Zion.
The ALJ did find, 	however, 	that a separate unit 	of pharmacists
at Mt. 	Zion would constitute an appropriate unit 	for the purposes
of HEERA.
EXCEPTIONS 	TO 	THE 	PROPOSED DECISION
Both parties 	filed numerous 	exceptions 	to 	the proposed
decision, 	with Local 	250 	contesting the decision as 	to a unit
of 	approximately 200 	employees 	and UC 	contesting 	the 	decision
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as 	to 	the 	separate unit 	of 	pharmacists.
UC 	argues 	that 	the ALJ 	failed 	to 	recognize 	the 	extent 	of
the 	transformation 	of 	the 	old Mt. 	Zion pharmaceutical 	services
once 	it 	was 	purchased by UC. 	Additionally, 	UC argues 	that 	the
ALJ 	failed 	to 	appropriately apply HEERA unit 	determination 	•
criteria 	when 	she 	recommended a 	unit 	consisting 	of 	two 	classes
of pharmacists at M t . 	Zion. 	Specifically, 	UC contends 	that
the 	ALJ 	failed 	to 	recognize 	PERB's 	1982 	rejection 	of 	a 	separate
pharmacist 	unit 	at 	UC; 	failed 	to 	recognize 	the 	adverse 	effect
on 	the 	efficient 	operations 	of 	UC; 	placed 	too much weight 	on 	the
bargaining history at Mt. 	Zion; 	and 	failed 	to give 	appropriate
weight 	to 	the 	systemwide 	presumption 	against 	splitting 	employees
within an occupational 	group. 	Finally, 	UC argues 	that 	the ALJ
inappropriately 	considered 	authority 	under 	the 	NLRA 	in
interpreting 	HEERA 	in 	spite 	of 	the 	fact 	that 	the 	NLRA unit
determination 	criteria 	differs 	substantially 	from 	those 	of 	HEERA.
Local 	250 	argues 	that 	maintaining 	a 	separate 	unit 	of
pharmacists 	is 	in keeping with 	the 	purpose 	of 	HEERA section 	35618
8HEERA section 	3561 	states:
(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.
(b) 	The 	Legislature 	recognizes 	that 	joint
decisionmaking 	and 	consultation 	between
administration 	and 	faculty 	or 	academic
employees 	is 	the 	long-accepted manner 	of
governing 	institutions 	of 	higher 	learning
and 	is 	essential 	to 	the 	performance 	of 	the
12

to develop harmonious 	and 	cooperative 	labor relations. 	Local
250 	explains 	that 	interfering with historically established
bargaining rights 	is 	"inimical 	to harmonious, 	cooperative and
orderly labor relations." 	Local 	250 	argues 	that, 	because 	PERB
case law adheres 	to the 	successor employer doctrine 	of 	the NLRA,
the units 	in place at Mt. 	Zion at 	the 	time of the purchase 	should
have been retained, 	regardless 	of 	the 	traditional 	UC bargaining
units. 	Local 	250 	further supports 	its position by arguing 	that
Mt. 	Zion 	continues 	to be 	operated 	in substantially the 	same
educational missions 	of 	these 	institutions,
and declares 	that 	it 	is 	the purpose of 	this
chapter 	to both preserve 	and encourage 	that
process. 	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
mechanisms or practices, 	including the
Academic Senate 	of 	the University of
California and the divisions 	thereof, 	the
Academic 	Senates 	of 	the 	California 	State
University, 	and other faculty councils,
with 	respect 	to policies 	on academic 	and
professional matters 	affecting 	the 	California
State University, 	the University of
California, 	or Hastings College of 	the Law.
The principle 	of peer review of 	appointment,
promotion, 	retention, 	and tenure for academic
employees 	shall 	be preserved.
(c) 	It 	is 	the policy of 	the State of
California 	to encourage 	the pursuit 	of
excellence in teaching, 	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 	the University of 	California,
Hastings College of 	the Law, 	and the
California 	State 	University.
13

manner 	it 	was 	operated prior to UC's purchase. 	Although Local
250 	would prefer to 	represent pharmacists 	as part 	of 	an overall
unit, 	it 	expressed willingness 	to proceed to an election 	for
pharmacists. 	Finally, 	Local 	250 argues 	that the pharmacists
have a 	right 	to 	representation and that placing 	them in a
statewide 	unrepresented unit 	would make 	representation virtually
impossible.
DISCUSSION
The 	failure 	to 	rebut 	the presumptive validity of 	established
units 	and 	the 	specific 	criteria 	of 	HEERA section 	3579 	renders
the 	Local 	250 	proposed unit 	inappropriate 	irrespective 	of 	the
NLRB's 	established 	successorship/accretion 	doctrine.
However, 	assuming arguendo that 	it does apply, 	this 	is
clearly a case of accretion and, 	thus, 	UC is not obligated to
recognize 	the bargaining units 	in place prior to 	its 	acquisition
of Mt. 	Zion. 	In Lammert 	Industries v. 	NLRB 	(1978) 	578 	F.2d 1223
[98 LRRM 2992, 	2994], 	the court stated:
In determining whether 	certain 	employees
constitute an accretion, 	the Board 	[NLRB]
compares 	them to 	the 	employees 	in the 	larger
unit 	and 	examines 	such 	factors 	as 	similarity
of working conditions, 	job classifications,
skills and functions, 	similarity of products,
interchangeability of 	employees, 	geographical
proximity, 	and centralization of managerial
control.
All 	of 	these 	factors are present here. 	The number of Mt. 	Zion
employees 	is 	a 	small 	percentage 	of 	the 	total 	number of 	employees
in 	each of 	the bargaining units 	to which they have been assigned
by UC. 	Mt. 	Zion is 	located near the Moffett and Long hospitals.
14

The personnel department, 	as well as all 	other aspects of
administration and supervision, 	are now centralized. 	Since all
of 	the UCSF medical 	centers 	are 	organized and operated 	to provide
acute medical 	care, 	working skills are interchangeable. 	The
record is 	replete with testimony that 	employees 	have 	not 	changed
their working 	conditions 	substantially during 	the 	integration.
We agree, 	therefore, 	with the ALJ's 	conclusion that 	if the
accretion principles are applied to 	the 	facts 	in this 	case, 	the
result must be 	the 	integration of 	the Mt. 	Zion employees 	into the
existing units.
MT. 	ZION PHARMACISTS
The ALJ reached a different 	result 	as 	to the 	two 	classes 	of
Mt. 	Zion pharmacists. 	Beginning approximately 18 years before
UC's purchase of Mt. 	Zion, 	pharmacists were 	represented by Local
250 	after an election. 	Consequently, 	the ALJ concluded that
they 	should be 	recognized by UC as 	a 	separate unit. 	The ALJ
noted 	that 	a unit 	of Mt. 	Zion pharmacists would comply with the
professional-only presumption of HEERA section 3579(b), 	but would
run 	counter to 	the 	section 3579(c) 	presumption 	that 	all 	employees
within an occupational 	group 	should be 	in a 	single unit. 	The ALJ
found the presumption rebutted, 	however, 	by the purpose of HEERA
as 	a 	collective bargaining 	statute.
The 	record 	indicates 	that 	the 	13 	pharmacists 	in the 	two
classes at Mt. 	Zion represent 	14 percent 	of 	the 	89 pharmacists
employed at 	the UCSF 	campus 	and less 	than 5 	percent 	of 	the
total 	number of pharmacists 	employed by the UC 	system. 	In the
15

Unit 	Determination 	for Professional 	Patient 	Care 	Employees 	of
the University of California 	(1982) 	PERB Decision No. 	248-H,
the 	Board 	rejected a 	request 	for 	inclusion of 	pharmacist
classifications 	in a 	single unit 	in the 	following statement:
SEIU 	initially did not 	seek 	to 	include
pharmacist 	classifications 	in 	the 	residual
unit. 	In their exceptions brief, 	they
indicated 	that 	they would 	seek 	to 	represent
them in the 	residual 	unit 	if 	the Board
ordered 	their 	inclusion. 	The 	record reflects
that pharmacists, 	like others 	sought 	in this
unit, 	provide 	specialized professional 	health
care 	services. 	Their work takes 	them into
the 	clinics 	and hospitals 	to 	interact with
other patient 	care professionals. 	It does
not 	appear 	that 	they would 	constitute 	an
appropriate unit by themselves. 	Thus,
because 	the 	record 	reflects 	that 	they 	share
an 	internal 	and occupational 	community of
interest 	with 	other patient 	care
professionals, 	we 	shall 	order their inclusion
in 	the 	residual 	patient 	care professional
unit. 	[Pp. 	11-12.]
As 	previously noted, 	a very 	strong presumption arises 	from
approval 	of 	an appropriate unit by 	PERB.9 The ALJ 	reasoned 	that
the presumption was 	overcome by 	18 	years 	in the private 	sector
and 	then being 	forced 	to 	join a unit 	by accretion which was
unrepresented. 	She 	stated 	that 	the possibility of 	obtaining
representation 	in 	the 	future would be unlikely because 	the
13 	pharmacists 	would 	join a unit 	of 	over 	1,500 	unrepresented
professionals. 	We 	find no authority 	for 	the proposition 	that
bargaining 	rights 	obtained 	in 	the 	private 	sector 	outweigh 	the
specific 	criteria 	in HEERA for determining an appropriate unit.
9State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1990) 	PERB Decision No. 	794-S.
16

HEERA section 3579(a)(5) 	states 	a major 	consideration 	in
determining 	an appropriate 	unit:
(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:
(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.
Allowing 	a 	small 	unit 	of 	represented pharmacists 	and
leaving 	an 	overwhelming majority 	of 	the 	remaining pharmacists
in a separate, 	unrepresented unit 	is precisely the problem
HEERA section 3579 (a) (5) 	is intended to prevent.10
We 	do not 	agree 	that 	this 	preexisting 	labor relationship
outweighs 	the 	specific 	language 	of 	HEERA or 	overcomes 	the
presumption 	of 	appropriateness 	of 	PERB-established units.
We 	therefore 	reverse 	that 	portion of 	the ALJ's 	decision 	that
found a separate unit 	of pharmacists at Mt. 	Zion to be
appropriate.
UNFAIR 	PRACTICE 	CHARGE
Local 	250's unfair practice 	charge alleges 	that UC's
assignment 	of Mt. 	Zion employees 	to 	three 	systemwide bargaining
units 	(clerical 	and allied, 	service and patient 	care 	technical)
provided unlawful 	assistance 	and 	support 	to AFSCME 	in violation
10Labor Relations 	Manager Gayle 	Cieszkiewicz 	testified
about 	her 	extensive 	experience 	in university 	labor 	relations
and collective bargaining. 	In her experience, 	the 	terms 	and
conditions 	of 	employment 	in units 	represented by different 	unions
never wound up 	to be 	the 	same. 	Unions 	do not present 	the 	same
bargaining proposals 	for different units. 	(R.T. 	IV, 	p. 	114.)
17

of HEERA section 3571 (d).11 The ALJ concluded that 	the evidence
in 	the 	record 	shows 	no employer 	campaign 	to aid AFSCME 	in 	seeking
representation of 	the added units, 	nor does 	it 	show that AFSCME
violated Article XX 	of 	the AFL-CIO 	constitution, 	and 	therefore
the ALJ dismissed the 	charge. 	We 	concur.
The 	representation petition and the unfair practice 	charge
are 	hereby dismissed.
ORDER
Based on 	the 	foregoing and 	the 	entire 	record 	in 	this 	case,
it 	is 	ordered 	that 	the petition 	for 	certification 	filed 	in
Case No. 	SF-PC-1049-H and the unfair practice 	charge 	in Case
No. 	SF-CE-311-H are hereby DISMISSED.
Members 	Caffrey and 	Carlyle 	joined 	in this 	Decision.
11Ante. footnote 	2.
18