Regents of the University of California and Association of Student Employees, United Automobile, Aerospace, and Agricultural Implement Workers of America, et al. (PERB 1261H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

REGENTS OF THE UNIVERSITY OF
CALIFORNIA,

Case No. SF-RR-805-H
(UC San Diego)

Employer,

and
PERB Decision No. 1261-H
ASSOCIATION OF STUDENT EMPLOYEES,
U.A.W., UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA,
AFL-CIO,

April 23, 1998

Petitioner.

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Appearances: Corbett & Kane by Sharon J. Grodin, Attorney, and
Cochran-Bond & Connon by Walter Cochran-Bond and Nicholas P.
Connon for Regents of the University of California; Schwartz,
Steinsapir, Dohrmann & Sommers by Margo A. Feinberg, Attorney,
for Association of Student Employees, U.A.W., United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO.

Before Caffrey, Chairman; Johnson and Dyer, Members.
DECISION

CAFFREY, Chairman: This case is before the Public
Employment Relations Board (PERB or Board) on exceptions filed by
the Regents of the University of California (University) to a
proposed decision issued by a PERB administrative law judge
(ALJ). In the attached proposed decision, the ALJ determined
that the student employees in the reader, tutor and associate
positions at the University of California, San Diego campus
(UCSD), as identified in the request for recognition petition
filed by the Association of Student Employees, U.A.W., United
Automobile, Aerospace and Agricultural Implement Workers of

America, AFL-CIO (Petitioner), are employees under the Higher

Education 	Employer-Employee Relations 	Act 	(HEERA 	or Act) . 1 	The
ALJ 	held 	that 	a 	unit 	composed 	of 	employees 	in 	the 	reader, 	tutor
and 	associate 	titles 	at 	UCSD was 	an 	appropriate 	bargaining 	unit
and 	he 	ordered 	that 	a 	representation 	election be 	conducted.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the 	transcript 	and 	exhibits, 	the 	ALJ's 	proposed
decision, 	the 	University's 	statement 	of 	exceptions 	and 	the
Petitioner's 	response 	thereto. 	Finding 	them 	free 	of 	prejudicial
error 1 	the 	Board hereby 	adopts 	the 	ALJ's 	findings 	of 	fact 	as 	the
findings 	of 	the 	Board 	itself. 	The 	Board 	also 	adopts 	the 	ALJ's
conclusions 	of 	lawf 	as 	modified 	below, 	and 	finds 	that 	student
employees 	in 	the 	reader, 	tutor 	and 	associate 	positions 	at 	UCSD
are 	employees 	under 	the 	HEERA.
PROCEDURAL HISTORY
On May 	28, 	1993, 	the 	Petitioner 	filed 	a 	request 	for
recognition 	petition with 	PERB 	seeking 	to 	represent 	a 	proposed
unit 	of 	readers, 	tutors, 	acting 	instructors, 	community 	teaching
fellows 	and 	nursery 	school 	assistants 	employed 	at 	UCSD.
On 	October 	15, 	1993, 	the 	PERB 	San 	Francisco 	regional
director 	determined 	that 	the 	proof 	of 	support 	submitted 	by 	the
Petitioner with 	its 	request 	for 	recognition 	petition was
sufficient 	to 	meet 	the 	requirements 	of 	HEERA. 	(PERB
1HEERA 	is 	codified 	at 	Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the 	Government 	Code.
2

Reg. 	51030 (b).) 2
On 	November 	8, 	1993, 	the 	University 	filed 	its 	response 	to
the 	petition, 	asserting 	that 	the 	unit 	sought 	by 	the 	Petitioner
was 	inappropriate 	because 	it 	included 	student 	employees who 	are
not 	employees 	as 	defined 	in HEERA. 	The 	University 	also 	indicated
that 	to 	the 	extent 	the 	petitioned 	for 	titles 	included 	non-student
employees, 	those 	employees 	should 	be 	placed 	in 	a 	separate
systemwide 	unit 	or 	accreted 	to 	the 	existing 	systemwide 	Non-Senate
Academic 	Unit 	(Unit 	18).
Following 	the 	University's 	response, 	the 	Petitioner, 	on
December 	9, 	1993, 	filed 	a 	request 	for 	a 	Board 	investigation 	to
determine 	the 	appropriateness 	of 	the 	proposed 	unit. 	(PERB
Reg. 	51090.) 	Settlement 	conferences/investigatory meetings 	were
held 	on 	February 	7, 	May 	19 	and 	June 	17, 	1994; 	however, 	the 	matter
was 	not 	resolved.
On 	June 	27f 	1994, 	the 	Petitioner 	amended 	its 	request 	for
recognition 	petition 	by 	adding 	the 	title 	Associate 	In
(Teaching 	a 	Course) 	and 	deleting 	nursery 	school 	assistants 1
community 	teaching 	fellows 	and 	acting 	instructors, 	titles 	which
were 	not 	in 	use 	at 	UCSD. 	On 	June 	29f 	1994, 	the 	PERB 	regional
director 	determined 	that 	the 	amended 	request 	for 	recognition 	had
sufficient 	proof 	of 	support. 	Accordingly, 	the 	titles 	at 	issue
before 	PERB 	are 	Readers 	{title 	codes 	2850, 	2851 	and 	2500), 	Tutors
(title 	codes 	2860, 	2861 	and 	2510) 	and Associates 	(title
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq.
3

code 	1506). 	The 	approximate membership 	of 	the 	proposed 	unit 	is
450.
The 	University 	filed 	a 	response 	to 	the 	amended 	request 	for
recognition 	on 	July 	27, 	1994, 	disputing 	the 	appropriateness 	of
the 	unit 	for 	the 	same 	reasons 	it 	opposed 	the 	original 	petition.
On 	September 	19, 	1994 1 	the 	Petitioner 	filed 	a 	motion with
the 	ALJ 	to 	consolidate 	the 	hearing 	in 	this 	case with hearings 	for
related, 	but 	not 	identical, 	request 	for 	recognition 	petitions
concerning 	the 	University's 	campuses 	at 	Davis 	(UCD), 	Los 	Angeles
(UCLA), 	and 	Santa 	Barbara 	(UCSB) . 3 	The ALJ 	granted 	the motion
in 	part 	on 	October 	28, 	1994. 	The ALJ 	ordered 	the 	consolidation
of 	the 	records 	in 	the 	four 	separate 	requests 	for 	recognition
cases, 	thus 	assuring 	that much 	of 	the 	University's 	case-in-chief
offered 	in 	the 	UCSD 	hearing would 	not 	need 	to 	be 	duplicated 	in
3The 	Petitioner was 	seeking 	only 	to 	consolidate 	the 	separate
hearings, 	not 	the 	petitions 	themselves 	for 	the 	purpose 	of 	forming
a 	single multi-campus 	bargaining 	unit. 	The 	request 	for
recognition petition 	concerning UCD 	(Case 	No. 	SF-RR-806-H), 	filed
on 	June 	30, 	1993, 	seeks 	a 	unit 	comprised 	of 	Readers, 	Tutors,
Acting 	Instructors, 	Community Teaching 	Fellows, 	Nursery 	School
Assistants, 	Teaching Assistants, 	Associates 	in ___ and 	Research
Assistants.
On March 	31, 	1994, 	a 	petit 	was 	filed 	concerning UCLA
(Case 	No. 	SF-RR-813-H) 	, 	as 	amended, 	proposes 	a 	unit 	of
Readers, 	Special 	Readers, 	Tutors, 	Remedial 	Tutors/Part-Time
Skills 	Counselors, 	Teaching Assistants, 	Assoc
___ , 	Teaching 	Fellows 	and 	Research Assistants.
On 	June 	27, 	1994, 	a 	petition was 	filed 	concerning UCSB 	(Case
No. 	SF-RR-815-H) 	seeking 	a 	unit 	of 	Readers, 	Tutors, 	Remedial
Tutors, 	Acting 	Instructors, 	Nursery 	School 	Assistants, 	Teaching
Assistants, 	Associates 	-~-' 	Teaching 	Fellows, 	and 	Research
Assistants.
4

the 	other 	cases. 	The 	Petitioner's 	request 	for 	a 	single 	formal
hearing 	for 	all 	four 	cases 	was 	denied.
Thirty-two 	days 	of 	formal 	hearing were 	held 	between
February 	6 	and 	June 	9, 	19950 	Briefs were 	filed 	and 	the 	case 	was
submitted 	to 	the ALJ 	on August 	19, 	1995. 	The ALJ's 	proposed
decision was 	issued 	on 	October 	20, 	1995.
Following 	extensions 	of 	time 	granted 	to 	the 	parties 	to 	file
the 	University's 	exceptions 	and 	the 	Petitioner's 	response, 	the
filings 	were 	completed April 	8, 	1996.
INTRODUCTION
Under 	HEERA, 	an 	employee 	organization may 	request 	that 	the
University 	recognize 	it 	as 	the 	exclusive 	representative 	of 	the
employees 	of 	a 	proposed 	bargaining 	unit 	for 	the 	purpose 	of
meeting 	and 	conferring with 	the 	University 	over 	terms 	and
conditions 	of 	employment. 	(HEERA 	sec. 	3573.) 	The 	University
will 	grant 	the 	employee 	organization's 	request 	to 	become 	the
exclusive 	representative 	of 	the 	proposed 	unit 1 	unless, 	among
other 	reasons, 	the 	University 	reasonably doubts 	the
appropriateness 	of 	the 	proposed unit. 	(HEERA 	sec. 	3574.)
In 	response 	to 	the 	Petitioner's 	request 	for 	recognition
petition, 	the 	University 	denied 	recognition 	to 	the 	Petitioner 	as
the 	exclusive 	representative, 	asserting 	that 	the 	unit 	proposed 	by
the 	Petitioner was 	inappropriate 	because 	it 	included 	student
employees who 	are 	not 	covered 	by HEERA. 	HEERA section 	3562(f)
defines 	an 	employee 	of 	the 	University:
'Employee' 	or 	'higher 	education 	employee'
means 	any 	employee 	of 	the 	Regents 	of 	the
5

University 	of 	California, 	... 	However,
managerial, 	and 	confidential 	employees 	shall
be 	excluded 	from 	coverage 	under 	this 	chapter.
The 	board may 	find 	student 	employees whose
employment 	is 	contingent 	on 	their 	status 	as
students 	are 	employees 	only 	if 	the 	services
they 	provide 	are 	unrelated 	to 	their
educational 	objectives, 	or, 	that 	those
educational 	objectives 	are 	subordinate 	to 	the
services 	they 	perform 	and 	that 	coverage under
this 	chapter would 	further 	the 	purposes 	of
this 	chapter. 	[Emphasis 	added.]
Accordingly, 	the 	Board must 	determine 	whether 	students
employed 	by 	the 	University 	at 	UCSD 	as 	readers, 	tutors 	and
associates 	are 	employees 	under HEERA 	and, 	therefore, 	are 	entitled
to 	negotiate 	with 	the 	University 	over 	the 	terms 	and 	conditions 	of
their 	employment.
The 	Statutory Test
HEERA 	section 	3562(f) 	(hereafter 	subsection 	(f)) 	sets 	out 	a
three-part 	test 	to 	determine whether 	collective 	bargaining 	rights
should 	be 	extended 	to 	student 	employees.
Under 	the 	first 	part 	of 	the 	test, 	the 	Board must 	determine
whether 	employment 	of 	student 	employees 	is 	contingent 	on 	their
status 	as 	students. 	If 	so, 	the 	Board must 	proceed 	to 	apply 	the
subsection 	(f) 	test. 	If 	not, 	the 	student 	employees 	are 	employees
under 	HEERA 	and 	the 	remainder 	of 	the 	subsection 	(f) 	test 	need 	not
be 	applied.
Under 	the 	second 	part 	of 	the 	test, 	the 	Board must 	determine
whether 	the 	services 	provided 	by 	student 	employees 	are 	related 	to
the 	educational 	objectives. 	If 	so, 	the 	Board must 	proceed 	to
apply 	the 	third 	part 	of 	the 	subsection 	(f) 	test. 	If 	the 	services
provided 	by 	the 	student 	employees 	are 	unrelated 	to 	their
6

educational 	objectives, 	they 	are 	employees 	under 	HEERA and 	the
third 	part 	of 	the 	subsection 	(f) 	test 	need 	not 	be 	applied.
The 	third 	part 	of 	the 	test 	has 	two-prongs. 	Under 	the 	first
prong, 	the 	Board must 	determine 	whether 	the 	educational
objectives 	of 	student 	employees 	are 	subordinate 	to 	the 	services
they 	perform. 	Under 	the 	second 	prong, 	the 	Board must 	determine
whether 	coverage 	of 	the 	student 	employees 	under HEERA would
further 	the 	purposes 	of 	the 	Act. 	In 	order 	for 	the 	Board 	to
conclude 	that 	student 	employees 	are 	employees 	under HEERA,
affirmative 	determinations 	must 	be made 	under 	both 	prongs.
BACKGROUND
The 	issue 	of 	student 	employee 	bargaining 	rights 	under 	HEERA
has 	come 	before 	PERB 	and 	subsequently 	the 	courts 	in two 	prior
cases, 	both 	of 	which 	have 	involved 	the 	application 	of
subsection 	(f).
In Regents 	of 	the 	University 	of 	California 	v. 	Public
Employment 	Relations 	Bd. 	(1986) 	41 	Cal.3d 	601 	[224 	Cal.Rptr. 	631]
(Regents), 	the 	Supreme 	Court 	upheld 	the 	Board's 	decision 	that
housestaff 	(medical 	interns, 	residents 	and 	clinical 	fellows 	in
residency 	programs 	at 	University 	hospitals) 	were 	employees 	under
HEERA. 	In 	this 	case, 	the 	court 	considered 	the 	legislative
history 	behind 	the 	enactment 	of 	HEERA. 	Initially 	the 	court 	noted
that 	prior 	to 	final 	passage 	of 	the Act, 	the 	Legislature 	amended
it 	to 	remove 	a 	specific hourly 	standard 	under 	which 	a 	student
employee would 	be 	determined 	to 	be 	an 	employee 	for 	purposes 	of
HEERA. 	Thus? 	the 	Legislature 	left 	the 	determination 	of 	student
7

employee 	status 	to 	PERB. 	The 	court 	concluded 	that 	subsection 	(f)
requires 	PERB 	to 	make 	a 	"case-by-case 	assessment 	of 	the 	degree 	to
which 	a 	student's 	employment 	is 	related 	to 	his 	or 	her 	educational
objectives." 	(Regents 	at 	p. 	607.)
The 	court 	then 	considered whether 	the 	Legislature 	intended
the 	language 	of 	subsection 	(f) 	to 	incorporate 	the 	precedent 	of
the 	National 	Labor 	Relations 	Board 	(NLRB), 	which 	held 	that
housestaff 	in 	the 	private 	sector were 	not 	employees 	under 	the
National 	Labor 	Relations 	Act. 	In 	two 	NLRB 	decisions 	involving
housestaff, 	a 	majority 	of 	the 	NLRB 	adopted 	a 	"primary purpose"
test 	which 	focused 	primarily 	on 	the 	students' 	motivation 	for
participating 	in 	housestaff 	programs. 	The 	majority 	concluded
that 	the 	students' 	interests 	in 	their 	own 	educational 	development
by participating 	in 	residency 	programs, 	outweighed 	their
interests 	in 	providing 	services. 	The 	dissent 	in 	these 	cases
concluded 	that 	the 	housestaff's 	motivation was 	irrelevant,
believing 	that 	the 	focus 	should 	be 	confined 	to 	the 	services
actually 	performed 	by 	the 	student 	employees.
Based 	upon 	its 	review 	of 	these NLRB 	decisions, 	a 	majority 	of
the 	court 	in Regents 	concluded 	that 	the 	Legislature 	intended 	to
create 	a 	new 	standard 	the 	HEERA, 	rather 	than 	follow 	NLRB
The 	court 	found 	that 	subsect 	(f) 	a
compromise 	between 	the 	NLRB's 	majority 	and 	ssenting 	opinions,
that 	both 	factors, 	a 	student's 	purpose 	for
participating 	in 	the 	position 	and 	the 	services 	provided, 	be
considered. 	With 	this 	position, 	the 	majority 	in 	the 	Regents 	case
8

rejected 	the 	dissent's 	view 	that 	it would 	be 	impossible 	for 	PERB
to 	balance 	a 	student's 	"subjective" 	educational 	objectives
against 	the 	"objective" 	services 	performed. 	The 	court 	stated:
The 	Legislature 	has 	instructed 	PERB 	to 	look
not 	only 	at 	the 	students' 	goals, 	but 	also 	at
the 	services 	they 	actually 	perform, 	to 	see 	if
the 	students' 	educational 	objectives 1 	however
personally 	important, 	are 	nonetheless
subordinate 	to 	the 	services 	they 	are 	required
to 	perform. 	Thus, 	even 	if 	PERB 	finds 	that
the 	students' 	motivation 	for 	accepting
employment was 	primarily 	educational, 	the
inquiry 	does 	not 	end 	here. 	PERB must 	look
further 	-- 	to 	the 	services 	actually 	performed
-- 	to 	determine 	whether 	the 	students'
educational 	objectives 	take 	a 	back 	seat 	to
their 	service 	obligations. 	[Regents 	at
p. 	614, 	fn. 	omitted.]
The 	court 	instructs 1 	therefore, 	that 	even 	if 	all 	the 	student
employees 	agreed 	that 	their 	purpose 	in 	seeking 	student 	academic
employment was 	to 	further 	their 	educational 	objectives, 	the 	Board
could 	determine 	that 	those 	educational 	objectives 	were
subordinate 	to 	the 	value 	of 	the 	services 	they 	provided 	to 	the
University.
Applying 	this 	standard, 	the 	court 	in Regents 	found 	that
there was 	substantial 	evidence 	to 	support 	the 	Board's 	finding
under 	prong 	one 	of 	the 	third 	part 	of 	the 	statutory 	test, 	that 	the
educational 	objectives 	of 	housestaff 	were 	subordinate 	to 	the
services 	they 	provided. 	There was 	evidence 	that 	housestaff
sought 	to 	participate 	in 	residency 	programs 	in 	order 	to 	obtain
extensive 	medical 	training. 	However, 	these 	educational
objectives 	were 	found 	to 	be 	subordinate 	to 	the 	valuable 	patient
care 	services 	they provided.
9

The 	court 	also 	found 	support 	for 	the 	Board's 	determination
under 	prong 	two 1 	that 	the 	purposes 	of 	HEERA would 	be 	furthered 	by
extending 	collective 	bargaining 	rights 	to 	housestaff. 	The 	Board
found 	that 	there 	were 	substantial 	employment 	concerns 	which
affect 	housestaff 	and 	that 	certain 	issues, 	such 	as 	salaries,
vacation 	time, 	fringe 	benefits 	and 	hours, 	were 	"manifestly
amenable 	to 	collective 	negotiations. 11 	(Regents 	at 	p. 	622.) 	The
Board 	also 	concluded 	that 	by 	providing housestaff 	with 	a
mechanism 	for 	resolving 	disputes, 	harmonious 	and 	cooperative
labor 	relations 	between 	the 	University 	and 	housestaff 	would 	be
furthered. 	Accordingly, 	the 	court 	affirmed 	the 	Board's
determination 	that 	housestaff 	were 	employees 	for 	purposes 	of
HEERA.
PERB 	addressed 	the 	student 	employee 	issue 	a 	second 	time 	in
Regents 	of 	the 	University 	of 	California 	(AGSE) 	(1989) 	PERB
Decision No. 	730-H 	(UC 	(AGSE)). 	In 	this 	case, 	the 	Board
considered whether 	graduate 	students 	at 	UC 	Berkeley 	appointed 	to
graduate 	student 	instructor 	(GSI) 	and 	graduate 	student 	researcher
(GSR) 	positions 	were 	employees 	covered 	by 	HEERA. 	After 	reviewing
the 	Regents 	decision, 	the 	Board 	concluded 	that 	there 	were
significant 	factual 	differences 	between the 	housestaff 	in 	Regents
and 	the 	graduate 	student 	employees 	in 	this 	case. 	The 	Board 	noted
the 	difficulty 	in 	balancing 	a 	seemingly 	subjective 	element
(educational 	objectives) 	against 	an 	objective 	one 	(services
performed). 	Based upon 	these 	considerations, 	the 	Board 	in
10

UC 	(AGSE) 	found 	it 	necessary 	to 	"recalibrate" 	the 	scale 	in 	the
first 	prong 	of 	the 	statutory 	test 	set 	forth 	in Regents. 	Under
this 	new 	approach, 	the 	Board 	focused 	on 	the 	apparent 	conflicts
between 	the 	student 	employees' 	academic 	and 	employment 	interests.
The 	Board 	concluded 	that 	the 	educational 	objectives 	of 	GSis 	and
GSRs 	were 	not 	subordinate 	to 	the 	services 	they 	provided 	because
where 	conflict 	existed 	between 	academic 	and 	economic
considerations, 	academic 	considerations 	prevailed.
Applying 	the 	second prong 	of 	the 	test, 	PERB 	also 	found 	that
the 	purposes 	of 	HEERA would 	not 	be 	furthered 	by 	extending
collective 	bargaining rights 	to 	GSis 	and 	GSRs 	for 	several
reasons, 	including: 	(1) 	impact 	on 	the 	student/faculty mentor
relationship; 	(2) 	the 	economic 	nature 	of 	collective 	bargaining
would 	override 	academic 	goals; 	(3) 	impact 	on 	the 	academic 	nature
of 	the 	selection process; 	(4) 	instability 	resulting 	from 	the
continuous 	movement 	of 	graduate 	students 	in 	and 	out 	of 	the 	unit;
and 	(5) 	the 	impossibility 	of 	separating 	academic 	and 	economic
matters. 	Accordingly, 	the 	Board 	concluded 	that 	graduate 	students
appointed 	to 	GSI 	and 	GSR positions 	at 	UC 	Berkeley were 	not
employees 	for 	purposes 	of 	HEERA.
On 	appeal, 	the 	court 	in Association 	of 	Graduate 	Student
Employees, 	District 	65, 	UAW 	v. 	Public 	Employment 	Relations 	Bd.
(1992) 	6 	Cal.App.4th 	1133 	(8 	Cal.Rptr.2d 	275] 	rev. 	den.
13, 	1992 	found 	that 	the 	Board 	erred 	by
establishing 	a 	new 	test 	which 	conflicted with 	the 	standard 	set
forth 	in 	Regents. 	The 	court 	held 	that 	the 	Board's 	"recalibration
11

of 	the 	scales" 	had 	so 	distorted 	the 	first 	prong 	of 	the 	test 	that
the 	Board's 	conclusion was 	suspect unless 	saved 	by 	its 	ruling
under 	the 	second 	prong. 	The 	court 	stated 	the 	proper 	test 	under
the 	first 	prong:
'Case-by-case 	analysis' 	would 	call 	upon PERB
to 	consider 	all 	the ways 	in which 	GSI 	and 	GSR
employment meet 	educational 	objectives 	of 	the
students 	and 	all 	the 	ways 	in which 	the
employment 	provides 	services 	and 	to 	compare
the 	value 	and 	effectiveness 	of 	the 	employment
in meeting 	the 	students' 	educational
objectives 	with 	the 	value 	and 	effectiveness
of 	the 	employment 	in 	providing 	services.
PERB, 	with 	its 	expertise, 	would 	then make 	a
judgment 	about 	whether 	the 	employment was
more 	valuable 	and 	effective 	in meeting
educational 	objectives 	or 	in 	providing
service 	to 	the 	University: 	whether 	the
'educational 	objectives 	are 	subordinate 	to
the 	services' 	the 	students 	perform. 	[AGSE 	at
p. 	1143, 	emphasis 	in 	original.]
Although 	the 	court 	rejected 	the 	Board's 	first 	prong 	test,
upheld 	the 	Board's 	conclusion 	that 	GSis 	and GSRs 	were 	not
employees 	under 	HEERA, 	finding 	that 	the 	Board properly 	applied
the 	second prong 	of 	the 	statutory 	test. 	The 	court 	concluded 	that
there 	was 	substantial 	evidence 	to 	support 	the 	Board's
determination 	that 	the 	purposes 	of 	HEERA would 	not 	be 	furthered
by 	extending 	collective 	bargaining 	rights 	to 	GSis 	and GSRs.
These 	cases 	provide 	guidance 	to 	the 	Board 	in 	the 	application
of 	subsection 	(f) 	to 	the 	student 	employees 	at 	issue 	in 	the
present 	case.
12

APPLICATION 	OF 	THE 	STATUTORY 	TEST
Part 	One: 	Is 	Employment 	Contingent 	on 	Student 	Status?
The ALJ 	held 	that 	employment 	as 	a 	reader 	or 	a 	tutor 	is 	not
contingent 	on 	status 	as 	a 	student. 	Under 	the 	subsection 	(f)
test, 	this 	holding 	is 	sufficient 	to 	conclude 	that 	readers 	and
tutors 	are 	employees 	under HEERA. 	The ALJ 	reached 	this
conclusion 	by 	noting 	that 	while 	students 	are 	given 	preference 	for
these 	positions, 	non-students 	are 	also 	hired 	in 	order 	to 	meet 	the
needs 	of 	the 	University. 	Under 	the 	ALJ's 	reasoning, 	if 	a 	single
non-student 	is 	hired 	as 	a 	reader 	or 	tutor, 	then 	employment 	in
these 	positions 	is 	not 	contingent 	on 	status 	as 	a 	student.
The 	University 	argues 	that 	this 	finding 	is 	overly 	rigid, 	and
contends 	that 	it 	is 	irrelevant 	that 	non-students 	are 	placed 	in
positions 	occupied 	primarily 	by 	student 	employees. 	The 	question
presented 	by 	this 	case, 	the 	University 	asserts, 	is 	whether 	the
employment 	of 	students 	as 	readers, 	tutors 	and 	associates 	is
contingent 	on 	their 	status 	as 	students. 	The 	University 	contends
that 	current 	registration 	as 	a 	student 	is 	not 	an 	appropriate
measure 	of 	employment 	contingency. 	The 	University 	points 	out
that 	the 	non-student 	employees 	in 	question 	generally have 	had 	a
very 	recent 	student 	relationship with 	the 	University 	as 	either
temporarily 	non-registered 	students 	or 	recent 	graduates 	who 	have
yet 	to 	begin 	graduate 	school. 	The 	University 	also 	notes 	that 	in
Regents 	the 	residents 	and 	interns 	at 	issue 	had 	graduated 	from
their 	degree 	programs 	and were 	not 	currently 	registered 	students.
Nonetheless, 	the 	court proceeded 	to 	apply 	the 	statutory 	test 	to
13

these 	housestaff 	to 	determine 	if 	they were 	employees 	under 	HEERA.
Initially, 	the 	Board 	notes 	that 	part 	one 	of 	the
subsection 	(f) 	test 	requires 	PERB 	in 	this 	case 	to 	determine
whether 	the 	employment 	of 	students 	as 	readers, 	tutors 	and
associates4 	is 	contingent 	on 	their 	status 	as 	students. 	The 	fact
that 	the 	University may 	employ 	non-students 	to 	perform 	some 	of
the 	same 	functions 	as 	these 	student 	employees 	is 	irrelevant 	to
the 	Board's 	determination.
The 	record 	clearly 	establishes 	that 	reader 	and 	tutor
positions 	are 	essentially 	student 	employment 	positions. 	As
explained 	by Vice 	Chancellor 	of 	Student 	Affairs 	Joseph Watson,
students 	are 	given 	preference 	for 	employment 	in 	these 	positions,
and 	non-students 	are 	considered 	for 	employment 	as 	readers 	and
tutors 	only 	after 	the 	pool 	of 	available, 	qualified 	students 	has
been 	exhausted. 	Of 	the 	1 1 078 	reader 	positions 	filled 	at 	UCSD
during 	the 	five 	academic 	quarters 	from 	the 	fall 	of 	1993 	through
the 	fall 	of 	1994, 	1,057 	were 	filled 	by 	registered 	students. 	Of
the 	1,255 	tutor 	positions 	filled 	during 	the 	same 	period, 	1,082
were 	filled 	by 	registered 	students. 	These 	2,139 	registered
students 	were 	given 	preference 	for 	employment 	as 	readers 	and
tutors 	because 	they were 	students. 	Thus, 	status 	as
students 	was 	a 	key 	cons 	the 	employment 	made
available 	to 	them 	the 	Univers
4It 	undisputed 	that 	the 	employment 	of 	students 	as
associates 	is 	contingent 	on 	their 	status 	as 	students, 	and 	the
remainder 	of 	this 	discussion 	focuses 	on 	readers 	and 	tutors.
14

The 	University 	correctly points 	out 	that 	actual, 	current
registration 	as 	a 	student was 	not 	a 	factor 	in 	the 	court's
application 	of 	the 	statutory 	test 	in Regents. 	In 	fact, 	the 	court
observed 	that 	housestaff 	lacked 	"most 	indicia 	of 	student 	status."
(Regents 	at 	p. 	620.) 	The 	court 	noted 	that 	housestaff 	paid 	no
tuition 	or 	student 	fees, 	completed 	no 	registration 	process, 	took
no 	examinations, 	and 	received 	no 	grades. 	However, 	employment 	as
housestaff 	required 	graduation 	from 	medical 	school 	and 	a
fundamental 	purpose 	of 	the 	employment was 	to 	further 	the 	medical
education 	of 	housestaff. 	The 	court 	did 	not 	apply 	a 	requirement
of 	current 	registration 	as 	a 	student 	in 	order 	to 	proceed 	to 	apply
the 	subsection 	(f} 	test 	to 	housestaff.
The 	record 	contains 	ample 	evidence 	supporting 	the
application 	here 	of 	the 	perspective 	employed 	by 	the 	court 	in
considering 	the 	housestaff 	in 	Regents. 	The 	vast 	majority 	of
readers 	and 	tutors 	are 	registered 	as 	students 	during 	their
employment. 	The 	evidence 	demonstrates 	that 	those who 	are 	not
registered 	also 	have 	a 	recent 	academic 	relationship with 	UCSD,
such 	as 	students 	taking 	a 	temporary 	break 	from 	their 	studies, 	or
recent 	graduates 	waiting 	to 	begin 	or 	resume 	their 	graduate 	work.
For 	example 1 	Scott 	Penrose-Kafka 	was 	not 	a 	registered 	student
when 	he 	was 	employed 	as 	a 	tutor 	because 	he 	was 	waiting 	to 	take 	a
final 	course 	needed 	for 	graduation. 	Gillespie 	took 	time 	off
from 	, 	but 	cont 	as 	a 	tutor.
Director 	Victor 	Cifarelli 	of 	the 	Office 	of 	Academic 	Support 	and
Instrumental 	Services 	(OASIS) 	explained 	that 	non-student 	OASIS
15

tutors 	are 	typically 	individuals 	who 	were 	registered 	students
when 	appointed 	to 	a 	tutor 	position, 	but who 	did 	not 	register 	for
classes 	the 	following 	quarter. 	From 	the 	viewpoint 	of 	the 	Regents
court's 	consideration 	of 	housestaff, 	there 	can 	be 	little 	doubt
that 	the 	employment 	of 	students 	as 	readers 	and 	tutors 	is
contingent 	on 	their 	status 	as 	students, 	and 	PERB must 	proceed 	to
apply 	the 	subsection 	(f) 	test 	to 	determine 	if 	these 	student
employees 	are 	employees 	under 	HEERA.
This 	finding 	is 	consistent with 	the 	significant public
policy 	considerations 	which 	are 	the 	underpinnings 	of 	the
subsection 	(f) 	statutory 	test. 	As 	the 	court 	instructs 	in
Regents, 	the 	subsection 	(f) 	test 	gives 	PERB 	the 	responsibility 	to
balance 	the 	educational 	objectives 	and 	service 	obligations 	of
student 	employees 	to 	determine 	whether 	they 	should 	be 	given 	HEERA
bargaining 	rights. 	The 	finding 	that 	the 	employment 	of 	students
as 	readers, 	tutors 	and 	associates 	is 	contingent 	on 	their 	status
as 	students 	permits 	PERB 	to 	fulfill 	this 	responsibility.
Consequently, 	the 	Board 	concludes 	that 	the 	employment 	of 	students
as 	readers, 	tutors 	and 	associates 	is 	contingent 	on 	their 	status
as 	students. 5 	Thus, 	we 	reverse 	the 	ALJ's 	contrary 	finding 	with
5Member 	Dyer 	agrees 	the 	ALJ's 	determination 	that
readers' 	and 	tutors' 	employment 	is 	not 	contingent 	on 	their 	status
as 	students 	and 	that 	readers 	and 	tutors 	are, 	consequently,
employees 	under 	HEERA. 	Accordingly, 	Member 	Dyer 	does 	not 	j
the 	Board's 	of 	Part 	One 	of 	the 	statutory 	test. 	However,
Member 	Dyer 	agrees 	that 	the 	application 	of 	the 	remainder 	of 	the
statutory 	test 	also 	leads 	to 	the 	conclusion 	that 	readers, 	tutors,
and 	associates 	are 	employees 	under 	the HEERA. 	Therefore 1 	Member
Dyer 	specifically 	joins 	in 	the 	Board's 	analysis 	of 	Parts 	Two 	and
Three 	of 	the 	statutory 	test.
16

regard 	to 	readers 	and 	tutors.
Part 	Two: 	Are 	the 	Services 	Provided 	by 	the 	Student 	Employees
Related 	to 	Their 	Educational 	Objectives?
In 	previous 	casesv 	the 	Board 	and 	the 	courts 	have 	accepted 	as
a 	given 	fact 	that 	the 	services 	provided 	by 	the 	student 	employees
in 	question were 	related 	to 	their 	educational 	objectives. 	In
this 	case, 	however, 	the 	ALJ 	rejected 	that 	assumption with 	regard
to 	readers, 	finding 	that 	the 	services 	they provide 	are 	unrelated
to 	their 	educational 	objectives. 	The ALJ 	defined 	the 	educational
objectives 	of 	readers 	as 	securing their 	degrees 	and 	obtaining
better 	credentials 	for 	their 	careers 	or 	graduate 	school. 	He
concluded 	that 	the 	primary 	duties 	of 	readers, 	grading
examinations 	and 	term papers, 	were 	not 	effective ways 	for 	readers
to 	achieve 	their 	educational 	objectives. 	Based 	on 	this
conclusion 	alone, 	the 	application 	of 	the 	subsection 	(f) 	statutory
test 	would 	cease, 	and 	readers 	would 	be 	found 	to 	be 	employees
under HEERA.
The 	Board 	disagrees 	with 	this 	conclusion 	for 	several
reasons. 	First, 	this 	part 	of 	the 	statutory test 	does 	not 	call
upon 	the 	Board 	to 	evaluate 	the 	effectiveness 	with which
employment 	as 	a 	reader, 	tutor 	or 	associate 	furthers 	the
educational 	objectives 	of 	students. 	It 	requires 	the 	Board 	to
determine whether 	there 	any 	relationship 	between 	the 	services
provided 	and 	those 	educational 	objectives. 	If 	there 	is, 	the
application 	of 	the 	statutory 	test 	must 	continue 	to 	balance 	those
objectives 	in 	relation 	to 	the 	services 	performed 	by 	the 	student
employees. 	Under 	this 	part 	of 	the 	statutory test, 	non-academic
17

student 	employees 	would 	likely 	be 	found 	to 	be 	employees 	under
HEERA. 	For 	example, 	if 	the 	University made 	cafeteria worker
positions 	available 	to 	students 	as 	a 	means 	of 	assisting 	them 	in
meeting 	their 	financial 	needs, 	it 	is 	likely 	that 	the 	services
provided by 	those 	student 	employees 	would 	be 	unrelated 	to 	their
educational 	objectives. 	In 	the 	current 	case, 	the 	Board must
assess 	whether 	there 	is 	any 	relationship 	between 	the 	educational
objectives 	and 	services 	performed 	by 	certain 	student 	academic
employees.
Second, 	the 	University 	correctly points 	out 	that 	the
educational 	objectives 	of 	students 	are 	broader 	than 	those
described 	by 	the 	ALJ. 	The most 	fundamental 	educational 	objective
of 	a 	student 	is 	to 	become 	educated 	- 	to 	learn 	and master 	a
subject 	matter 	or 	field 	of 	study. 	Readers, 	tutors 	and 	associates
testified 	that 	their 	student 	academic 	employment 	assisted 	in
their 	educational 	development 	by 	increasing 	their 	learning with
regard 	to 	the 	subject material 	and 	assisting 	in 	development 	of
skills 	needed 	for 	their 	own 	course work.
Third, 	it 	is 	difficult 	to 	imagine 	how the 	academic
employment 	of 	students 	in 	areas 	associated with 	their 	fields 	of
study 	could 	be 	found 	to 	be wholly 	unrelated 	to 	their 	educational
objectives. 	The 	record 	clearly 	establishes 	a 	relationship
between 	the 	fields 	of 	study 	of 	students 	employed 	as 	readers,
tutors 	and 	associates 	and 	the 	areas 	in which 	they 	are 	employed.
A reader 	is 	assigned 	to 	a 	course 	related 	to 	the 	reader's 	field 	of
study, 	and 	is 	expected 	to 	have 	either 	completed 	the 	course 	or
18

demonstrated 	familiarity 	with 	its 	subject matter. 	Similarly, 	a
tutor 	provides 	assistance 	to 	other 	students, 	or 	serves 	as 	a
teaching 	assistant 	in 	subject 	areas 	with 	which 	the 	tutor 	is
familiar 	and 	proficient. 	Associates 	teach 	courses 	in 	areas
closely 	related 	to 	their 	own 	fields 	of 	graduate 	study.
Our 	review 	of 	the 	record 	leads 	the 	Board 	to 	conclude 	that
the 	services 	provided 	by 	readers, 	tutors 	and 	associates 	are
related 	to 	their 	educational 	objectives. 	Therefore, 	we 	reverse
the 	ALJ's 	contrary 	finding 	with 	regard 	to 	readers.
Part 	Three 	- 	Prong 	One: 	Are 	the 	Educational 	Objectives 	of 	the
Student 	Employees 	Subordinate 	to 	the 	Services 	They 	Provide?
Appropriately, 	the 	determination 	of 	whether 	student 	readers,
tutors 	and 	associates 	are 	employees 	under HEERA 	turns 	on 	the
application 	of 	the 	third part 	of 	the 	statutory 	test. 	The 	first
prong 	of 	this 	test 	directs 	the 	Board 	to 	determine 	whether 	the
educational 	objectives 	of 	student 	readers 1 	tutors 	and 	associates
are 	subordinate 	to 	the 	services 	they 	perform. 	As 	the 	Regents
court 	stated:
The 	Legislature 	has 	instructed PERB 	to 	look
not 	only 	at 	the 	students' 	goals, 	but 	also 	at
the 	services 	they 	actually 	perform 1 	to 	see 	if
the 	students' 	educational 	objectives, 	however
personally 	important, 	are 	nonetheless
subordinate 	to 	the 	they 	are
to 	perform. 	[Regents 	at 	p. 	614.]
The 	court 	of 	appeal 	held 	that 	the 	proper 	application
of 	this 	prong 	of 	the 	test 	requires 	PERB 	to 	conduct 	a 	case-by-case
analysis 	of 	11 all 	the 	ways 11 	in which 	the 	employment meets 	the
educational 	objectives 	of 	the 	students 	and 	"all 	the 	ways 11 	in
which 	the 	employment 	provides 	services. 	PERB 	is 	to 11 make 	a
19

judgment 	about 	whether 	the 	employment was 	more 	valuable 	and
effective 	in meeting 	educational 	objectives 	or 	in 	providing
service 	to 	the 	University." 	That 	judgment 	determines 	whether 	the
"educational 	objectives 	are 	subordinate 	to 	the 	services." 	The
AGSE 	court 	instructs 	that 	11 the 	statute 	and 	Regents 	decision 	call
for 	a 	value 	judgment 	about which 	is 	subordinate, 	not 	a 	scientific
weighing 	process. 11 	In making 	this 	value 	judgment, 	the 	Board 	must
consider 	how vital 	employment 	as 	a 	reader, 	tutor 	or 	associate 	is
to 	the 	achievement 	of 	students' 	educational 	objectives, 	and 	how
vital 	the 	services 	provided 	by 	readers, 	tutors 	and 	associates 	are
to 	the 	accomplishment 	of 	the 	educational 	mission 	of 	the
University. 	In 	Regents, 	the 	court 	applied 	this 	part 	of 	the
subsection 	(f) 	test 	by 	considering whether 11 services must 	be
performed without 	regard 	to 	whether 	they will 	provide 	any
educational 	benefit 11 	to 	the 	students 	performing 	them.
As 	noted 	above, 	the ALJ 	described 	student 	educational
objectives 	as, 	primarily, 	to 	obtain 	a 	degree 	and 	to 	prepare 	for
employment 	or 	graduate 	studies. 	The 	University 	contends 	that
this 	description 	is 	too 	narrow 	and 	fails 	to 	consider 	"all 	the
ways 11 	in which 	students' 	employment meets 	their 	educational
objectives. 	The 	University 	identifies 	four 	categories 	of 	student
educational 	objectives 	which 	are 	furthered 	by 	employment 	as 	a
reader, 	tutor 	or 	associate: 	mastery 	of 	subject matter, 	obtaining
experience which 	helps 	to 	define 	career 	and 	educational 	goals,
developing 	relationships 	with 	faculty, 	and 	obtaining valuable
academic 	and 	career 	qualifications.
20

The 	University 	cites 	the 	testimony 	of 	its 	witnesses 	that
using 	students 	in 	these 	positions 	is 	neither 	the 	most 	efficient
nor 	most 	effective way 	of 	filling 	these 	positions. 	Instead, 	the
University 	requires 	that 	these 	appointments 	be 	given 	to 	students,
where 	possible, 	to 	provide 	them with 	financial 	support 	and
teaching 	experience, 	particularly 	graduate 	students, 	and 	to
assist 	them 	in maintaining 	an 	academic 	focus. 	The 	University
acknowledges 	that 	it 	receives 	a 	benefit 	from 	the 	services
provided 	by 	students 	serving 	as 	readers, 	tutors 	and 	associates,
but 	asserts 	that 	it 	could 	continue 	to 	operate 	effectively without
the 	use 	of 	these 	student 	academic 	employees.
In 	sum, 	the 	University 	argues 	that 	the 	weight 	of 	the
evidence 	demonstrates 	that 	the 	educational 	objectives 	of 	students
employed 	as 	readers, 	tutors 	and 	associates 	are 	not 	subordinate 	to
the 	services 	they 	perform.
The 	Board 	disagrees.
The 	record 	reveals 	that 	the 	value 	and 	effectiveness 	of
employment 	as 	a 	reader 	does 	not 	appear 	to 	be 	substantial 	in
meeting 	students' 	educational 	objectives. 	While 	employment 	as 	a
reader 	contributes 	to 	a 	student's 	mastery 	of 	a 	particular 	subject
matter, 	readers 	typically 	have 	little 	interaction with 	faculty 	or
other 	students 	as 	part 	of 	their 	duties. 	Exposure 	to 	the 	teaching
process 	is 	limited 	to 	the 	grading 	of 	examinations 	and 	papers, 	and
employment 	as 	a 	reader 	meets 	or 	fulfills 	no 	academic 	requirement
or 	qualification. 	Employment 	as 	a 	reader 	is 	not 	a 	particularly
21

effective means 	of 	achieving 	the 	educational 	objectives 	described
by 	the 	University.
In 	contrast, 	the 	value 	and 	effectiveness 	of 	the 	services
provided 	by 	readers 	are 	essential 	to 	the 	University's 	educational
mission. 	Several 	witnesses 	testified 	that 	the 	absence 	of 	readers
would 	require 	fundamental 	changes 	to 	the 	current 	academic
processes 	of 	the 	University, 	resulting 	in 	detrimental 	effects 	on
the 	educational 	enterprise. 	Further, 	the 	University's 	assertion
that 	it 	could 	provide 	these 	services 	by 	hiring 	a 	sufficient
number 	of 	professional 1 	non-student 	readers 	possessing the
required 	academic 	expertise 	is 	problematic 	given 	the 	extremely
large 	numbers 	of 	positions 	involved 	and 	the 	relatively modest
wages 	currently paid 	to 	readers. 	More 	importantly, 	the
University's 	assertion 	appears 	to 	be 	tacit 	acknowledgment 	that
reader 	services 	are 	essential 	to 	the 	University 	and must 	be
provided, 	regardless 	of 	whether 	they 	are 	performed 	by 	students.
It 	is 	clear 	that 	the 	services 	provided 	by 	readers 	are 	vital 	to
the 	academic 	mission 	of 	the 	University.
As 	correctly 	determined 	by 	the 	ALJ, 	application 	of 	this 	part
of 	the 	subsection 	(f) 	statutory 	test 	leads 	to 	the 	conclusion 	that
the 	educational 	objectives 	of 	readers 	are 	subordinate 	to 	the
services 	they 	perform.
The 	majority 	of 	tutors 	at UCSD 	provide 	services 	through 	the
OASIS 	program to 	help 	students 	overcome 	academic 	deficiencies 	and
assist 	students 	seeking to 	excel 	in 	a 	particular 	academic
subject. 	Other 	tutors 	serve 	as 	undergraduate 	teaching
22

assistants, 	leading 	course 	discussion 	sections, 	conducting 	review
sessions, 	holding 	office 	hours 	and 	grading 	papers 	and
examinations. 	Some 	graduate 	student 	tutors 	assist 	departments 	by
coordinating 	academic 	enrichment 	projects 	designed 	to 	assist
other 	graduate 	students.
Tutors 	testified 	that 	while 	obtaining 	an 	income was 	a
motivating 	factor 	in 	seeking 	a 	tutor 	position, 	serving 	as 	a 	tutor
helped 	them 	achieve 	certain 	educational 	objectives. 	As 	a 	result
of 	their 	experience 	as 	tutors, 	they 	achieved 	a 	deeper
understanding 	of 	academic 	subject matter, 	developed 	useful
relationships 	with 	faculty, 	and were 	able 	to 	experience 	and
practice 	teaching 	skills. 	Thus, 	employment 	as 	a 	tutor 	is 	helpful
in 	achieving 	educational 	objectives.
The 	record 	also 	demonstrates 	that 	tutors 	are 	absolutely
vital 	to 	the 	University's 	ability 	to 	fulfill 	its 	teaching
mission. 	For 	example, 	the 	OASIS 	tutoring 	program 	is 	an 	essential
component 	of 	UCSD's 	effort 	to 	encourage 	student 	retention 	and
academic 	success. 	The 	use 	of 	tutors 	as 	undergraduate 	teaching
assistants 	to 	assist 	faculty 	in 	large 	classes 	is 	vital 	to 	the
academic 	achievement 	of 	many 	students.
The 11 value 	judgment 11 	the 	court 	directs 	PERB 	to 	make 	asks 	the
Board to 	consider 	if 	tutor 	services must 	be 	provided, 	regardless
of 	whether 	student 	tutors 	receive 	any 	educational 	benefit 	from
the 	employment. 	It 	is 	virtually 	undisputed 	that 	tutor 	services
must 	be 	offered 	at UCSD. 	The 	University 	does 	not 	argue 	that
these 	services 	can be 	eliminated, 	instead 	asserting 	that 	they 	can
23

be 	redistributed 	to 	faculty 	and/or 	assigned 	to 	non-student
tutors. 	As 	with 	readers, 	this 	assertion 	is 	problematic 	given 	the
numbers 	of 	positions 	involved. 	But more 	importantly, 	it 	is 	a
clear 	statement 	by 	the 	University 	that 	the 	services 	provided 	by
tutors 	must 	continue 	to 	be 	provided 	in 	order 	to 	achieve 	the
academic 	mission 	of 	the 	University. 	Since 	tutor 	services 	must 	be
provided 	irrespective 	of 	who 	provides 	them, 	the 	value 	and
effectiveness 	of 	employment 	as 	a 	tutor 	in meeting 	students'
educational 	objectives 	is 	subordinate 	to 	the 	value 	and
effectiveness 	of 	the 	services 	tutors 	provide.
The ALJ 	correctly 	concluded 	that 	the 	educational 	objectives
of 	student 	tutors 	are 	subordinate 	to 	the 	services 	they 	perform.
Students 	appointed 	to 	associate 	positions 	have 	full
authority 	over 	a 	particular 	course 1 	including 	selecting 	the
textbooks, 	preparing 	the 	course 	syllabus, 	delivering 	the
lectures, 	designing 	the 	course 	assignments 	and 	examinations,
holding 	office 	hours, 	and 	determining 	student 	grades. 	The 	work
of 	associates 	is 	virtually 	indistinguishable 	from 	that 	of 	other
faculty 	with 	complete 	responsibility 	for 	teaching 	a 	course.
According 	to 	Dean 	Richard Attiyeh, 	associates 	are 	qualified 	to
accept 	a 	regular 	faculty 	appointment. 	In 	fact, 	two 	associates
testified 	that 	they were 	asked 	to 	step 	in 	and 	teach 	courses 	when
the 	regular 	faculty 	members 	were 	granted 	leave.
Employment 	as 	an 	associate 	meets 	several 	educational
objectives, 	such 	as 	providing 	students 	with 	teaching 	skills 	and
experience. 	Employment 	as 	an 	associate 	provides 	valuable
24

experience 	to 	doctoral 	degree 	candidates who will 	eventually 	seek
permanent 	faculty 	positions. 	However, 	the 	small 	number 	of
associate 	positions 	indicates 	that 	employment 	as 	an 	associate 	is
not 	the 	method 	by which 	graduate 	students 	typically 	achieve 	these
educational 	objectives. 	While 	some 	graduate 	students 	may 	be
required 	to 	obtain 	teaching 	experience 	as 	part 	of 	an 	advanced
degree 	curriculum, 	there 	are 	numerous 	ways, 	including 	employment
as 	an 	associate, 	in which 	to 	fulfill 	that 	requirement.
The 	employment 	of 	associates 	is 	necessary 	to 	meet 	the
service 	needs 	of 	the 	University. 	Associates, 	performing 	duties
identical 	to 	those 	of 	regular 	faculty 	members, 	are 	a 	critical
component 	of 	the 	University's 	academic 	program. 	The 	courses
taught 	by 	associates 	are 	part 	of 	the 	University's 	core 	curriculum
and must 	be 	offered 	to 	meet 	the 	educational 	needs 	of 	the 	students
enrolled 	in 	those 	classes. 	The 	University must 	provide
instructors 	for 	those 	courses, 	and 	associates 	or 	other 	qualified
individuals 	must 	be 	employed 	to 	serve 	in 	that 	capacity. 	When
conflicts 	occur 	between 	an 	associate's 	teaching 	and 	personal
academic 	obligations, 	the 	teaching 	duties 	take 	precedence 	because
they 	are 	more 	immediate 	and 	affect 	large 	numbers 	of 	other UCSD
students. 	For 	example, 	two 	associates 	testified 	that 	work 	on
their 	own 	dissertations 	was 	slowed 	by 	the 	demands 	of 	the
associate 	position.
The 	University 	uses 	associates 	to 	teach 	essential 	courses
which 	are 	indistinguishable 	from 	courses 	taught 	by 	other 	faculty.
These 	services 	must 	be 	provided, 	regardless 	of 	whether 	associates
25

fulfill 	an 	educational 	objective while 	performing them.
Therefore, 	the 	educational 	objectives 	of 	associates 	are
subordinate 	to 	the 	services 	they 	provide 	to 	the 	University 	as
held 	by 	the 	ALJ.
Under 	the 	first 	prong 	of 	part 	three 	of 	the 	subsection 	(f)
statutory 	test, 	the 	Board 	concludes 	that 	the 	educational
objectives 	of 	students 	employed 	as 	readers 1 	tutors 	and 	associates
are 	subordinate 	to 	the 	services 	they 	perform.
Part 	Three 	- 	Prong 	Two: 	Would 	Coverage 	of 	the 	Student 	Employees
Under 	HEERA 	Further 	the 	Purposes 	of 	the 	Act?
Under 	this 	final 	portion 	of 	the 	statutory 	test, 	the 	Board
must 	determine 	whether 	coverage 	under HEERA of 	students 	employed
as 	readers, 	tutors 	and 	associates 	would 	further 	the 	purposes 	of
the Act.
As 	a 	preliminary matteru 	in 	light 	of 	this 	Board's 	1989
decision 	in UC 	(AGSE), 	the 	University 	argues 	that 	the 	fundamental
matter 	at 	issue 	here 	already 	has 	been 	decided, 	i.e., 	that
extending HEERA 	coverage 	to 	these 	student 	employees 	would 	disrupt
the 	pursuit 	of 	excellence 	at 	the 	University which 	the 	Act 	seeks
to 	encourage. 	However, 	questions 	of 	representation 	are
inherent 	dynamic 	since 	job 	may 	fluctuate 	substantial
over 	time. 	As 	a 	result, 	the 	Board has 	long 	held 	that
representation matters 	are 	subject 	to 	periodic 	re-examination,
especial 	where 	no 	representative 	in 	place, 	to
whether 	circumstances 	have 	changed. 	Prior 	determinat
are 	binding 	only 	"to 	the 	extent 	that 	circumstances 	are 	the 	same
26

and 	Board 	precedent 	remains 	the 	same." 	(Regents 	of 	the
University 	of 	California 	(1986) 	PERB 	Decision No. 	586-H;
see 	also, 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1990) 	PERB 	Decision No. 	794-S.)
The 	Board's 	decision 	in UC 	(AGSE) 	was 	based 	on 	conditions
and 	job duties 	existing 	on 	the 	UC 	Berkeley 	campus 	in 	1984. 	We 	do
not 	find 	those 	conditions 	and 	duties, 	or 	the 	Board decision 	based
on 	them, 	determinative 	of 	the 	status 	of 	student 	employees 	at 	UCSD
more 	than 	a 	decade 	later.
We 	begin 	our 	application 	of 	this 	prong 	of 	the 	subsection 	(f)
statutory 	test 	by 	identifying 	the 	purposes 	of 	HEERA. 	HEERA
begins 	at 	section 	3560(a) 	by 	stating 	the 	Legislature's 	finding
and 	declaration 	that:
The 	people 	of 	the 	State 	of 	California 	have 	a
fundamental 	interest 	in 	the 	development 	of
harmonious 	and 	cooperative 	labor 	relations
between 	the 	public 	institutions 	of 	higher
education 	and 	their 	employees.
Section 	3560(b) 	states 	that 	it would 	be 	"advantageous 	and
desirable" 	to 	expand 	PERB's 	jurisdiction to 	cover 	the 	employees
of 	the 	University 	of 	California. 	HEERA proceeds 	to 	establish 	a
system 	of 	collective 	bargaining, 	to 	be 	administered 	by 	PERB, 	as
the 	means 	of 	achieving harmonious 	and 	cooperative 	labor 	relations
between 	the 	University 	and 	its 	employees.
HEERA section 	3560(e) 	states:
It 	is 	the 	purpose 	of 	this 	chapter 	to 	provide
the 	means 	by which 	relations 	between 	each
higher 	education 	employer 	and 	its 	employees
may 	assure 	that 	the 	responsibilities 	and
authorities 	granted 	to 	the 	separate
institutions 	under 	the 	Constitution 	and 	by
27

statute 	are 	carried 	out 	in 	an 	atmosphere
which 	permits 	the 	fullest 	participation 	by
employees 	in 	the 	determination 	of 	conditions
of 	employment which 	affect 	them. 	It 	is 	the
intent 	of 	this 	chapter 	to 	accomplish 	this
purpose 	by 	providing 	a 	uniform 	basis 	for
recognizing 	the 	right 	of 	the 	employees 	of
these 	systems 	to 	full 	freedom 	of 	association,
self-organization 1 	and 	designation 	of
representatives 	of 	their 	own 	choosing 	for 	the
purpose 	of 	representation 	in 	their 	employment
relationships 	with 	their 	employers 	and 	to
select 	one 	of 	these 	organizations 	as 	their
exclusive 	representative 	for 	the 	purpose 	of
meeting 	and 	conferring.
Thus; 	HEERA's 	expressed 	purpose 	is 	to 	permit 	the 	full
participation 	by 	employees 	in 	the 	determination 	of 	the 	conditions
of 	their 	employment 	by 	providing 	for 	a 	system 	of 	collective
bargaining. 	It 	is 	axiomatic, 	therefore, 	that 	the 	extension 	of
collective 	bargaining 	rights 	to 	University 	employees 	is
consistent with, 	and 	in 	furtherance 	of 0 	the 	expressed purpose 	of
HEERA. 	To 	the 	extent 	that 	the 	University's 	position 	is 	based 	on
the 	assertion 	that 	extending 	collective 	bargaining 	rights 	to
student 	academic 	employees 	would 	fundamentally 	conflict with 	the
University's 	educational 	mission, 	that 	position 	ignores 	and 	is
inconsistent with HEERA's 	expressed 	purpose.
HEERA 	section 	3561(a) 	states:
It 	the 	further 	purpose 	of 	this 	to
provide 	orderly 	and 	clearly 	defined
procedures 	for 	meeting 	and 	conferring 	and 	the
resolution 	of 	impasses 1 	and 	to 	define 	and
prohibit 	certain practices 	which 	are 	inimical
to 	the 	publ
Thus, 	it 	is 	also 	HEERA's 	purpose 	to 	establish a 	process 	designed
to 	promote 	the 	orderly 	resolution 	of 	disputes, 	and 	to 	describe
conduct 	by 	both higher 	education 	employers 	and 	employee
28

organizations 	which 	is 	inimical 	to 	the 	purposes 	of 	the 	Act.
Obviously, 	this 	purpose 	can 	only 	be 	furthered 	if 	the 	University
and 	its 	employees 	are 	subject 	to 	the 	HEERA process.
HEERA 	section 	3561(b) 	states:
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
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.
Thus, 	while 	providing 	for 	collective 	bargaining and 	a 	dispute
resolution 	process, 	the 	Legislature has 	also 	specifically
provided 	for 	the 	preservation under 	HEERA 	of 	joint decisionmaking
between higher 	education 	employers 	and 	faculty 	members, 	and 	of
peer 	review 	and 	tenure 	systems 	for 	academic 	employees. 	Further,
HEERA recognizes 	that 	these 	systems 	are 	essential 	to 	the
performance 	of 	the 	University's 	educational 	mission.
Finallyi 	HEERA 	section 	356l{c) 	states:
It 	is 	the 	policy 	of 	the 	State 	of 	California
to 	encourage 	the 	pursuit 	of 	excellence 	in
29

teaching, 	research, 	and 	learning through 	the
free 	exchange 	of 	ideas 	among 	the 	faculty,
students, 	and 	staff 	of 	the 	University 	of
Californiaf 	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.
Thus, 	while 	encouraging the 	free 	exchange 	of 	ideas 	between
faculty, 	students 	and 	staff, 	HEERA 	expressly 	seeks 	to 	preserve
academic 	freedom 	at 	California's 	public 	institutions 	of 	higher
learning. 	Thereby 1 	HEERA 	encourages 	the 	"pursuit 	of 	excellence"
at 	the 	University. 	Harmonious 	and 	cooperative 	labor 	relations
result 	from 	a 	system 	of 	collective 	bargaining 	between 	the
University 	and 	its 	employees 	which 	respects 	the 	concept 	of
academic 	freedom. 	Under HEERA, 	these 	concepts 	- 	collective
bargaining 	and 	academic 	freedom 	- 	coexist 	and 	complement 	one
anothero 	They 	are 	not 	mutually 	exclusive, 	as 	much 	of 	the
University's 	argument 	seems 	to 	suggest.
The 	University 	excepts 	to 	the 	ALJ's 	finding 	that 	HEERA
coverage 	for 	students 	employed 	as 	readers, 	tutors 	and 	associates
would 	further 	the 	Act's 	purposes. 	The 	University 	argues 	that 	the
evidence 	establishes 	that 	granting 	collective 	bargaining rights
to 	these 	student 	employees 	would 	interfere with 	academic 	policy
and 	result 	in 	difficult 	and 	protracted 	efforts 	to 	define 	the
scope 	of 	representation 	in 	relation 	to 	academic 	matters.
The 	Regents 	court 	characterized 	similar 	arguments 	by 	the
University 	in 	that 	case 	as 	a 	"doomsday 	cry" 	which was 	"somewhat
exaggerated" 	and 	"premature." 	The 	Board 	rejects 	the 	University's
30

argument 	here 	as 	well. 	HEERA 	expressly 	provides 	for 	the
preservation 	of 	academic 	freedom 	at 	the 	University, 	as 	well 	as
its 	systems 	of 	joint 	decisionmaking, 	peer 	review 	and 	tenure 	for
academic 	employees. 	Coverage 	by 	the 	Act 	can 	not 	and will 	not 	be
allowed 	to 	undercut 	these 	systems 	and 	processes, 	which 	are
singled 	out 	for 	protection 	and 	preservation by HEERA's 	own 	terms.
Further, 	HEERA 	expressly 	enumerates 	subjects 	which 	are
excluded 	from 	the 	scope 	of 	representation 	for 	purposes 	of
collective 	bargaining with 	the 	University. 	HEERA
section 	3562(q) (1) 	states 	that 	the 	scope 	of 	representation 	at 	the
University 	shall 	not 	include:
Consideration 	of 	the 	merits, 	necessity, 	or
organization 	of 	any 	service, 	activity, 	or
program 	established 	by 	law 	or 	resolution 	of
the 	regents 	or 	the 	directors, 	except 	for 	the
terms 	and 	conditions 	of 	employment 	of
employees 	who may 	be 	affected 	thereby.
Therefore, 	the 	University 	retains 	the 	unfettered 	prerogative 	to
determine 	what 	and how 	services 1 	academic 	and 	non-academic, 	are
to 	be 	offered 	and 	delivered. 	Those 	services 	include 	those
performed 	by 	student 	readers, 	tutors 	and 	associates.
Of 	particular 	note 	is 	HEERA 	section 	3562(q) (3) 	which
excludes 	from 	the 	scope 	of 	representation:
Admiss 	requirements 	for 	students,
conditions 	for 	the 	award 	of 	certif 	and
degrees 	to 	students, 	and 	the 	content 	and
supervision 	of 	courses, 	curr 	, 	and
research 	programs, 	as 	those 	terms 	are
intended 	the 	orders 	of 	the
regents 	or 	the 	directors.
Therefore, 	any 	concern 	by 	the 	University 	that 	degree 	requirements
and 	aspects 	of 	course work 	or 	research may 	become 	the 	subject 	of
31

collective 	bargaining with 	student 	readers, 	tutors 	and 	associates
is 	misplaced, 	as 	these 	subjects 	are 	outside 	of 	the 	HEERA 	scope 	of
representation.
Additionally, 	HEERA 	section 	3652(q) (4) 	excludes 	from 	the
scope 	of 	representation:
Procedures 	and 	policies 	to 	be 	used 	for 	the
appointment, 	promotion, 	and 	tenure 	of 	members
of 	the 	academic 	senate, 	the 	procedures 	to 	be
used 	for 	the 	evaluation 	of 	the 	members 	of 	the
academic 	senate, 	and 	the 	procedures 	for
processing 	grievances 	of members 	of 	the
academic 	senate. 	The 	exclusive
representative 	of 	members 	of 	the 	academic
senate 	shall 	have 	the 	right 	to 	consult 	and 	be
consulted 	on matters 	excluded 	from 	the 	scope
of 	representation 	pursuant 	to 	this 	paragraph.
If 	the 	academic 	senate 	determines 	that 	any
matter 	in 	this 	paragraph 	should 	be 	within 	the
scope 	of 	representation, 	or 	if 	any matter 	in
this 	paragraph 	is 	withdrawn 	from 	the
responsibility 	of 	the 	academic 	senate, 	the
matter 	shall 	be within 	the 	scope 	of
representation.
All 	matters 	not 	within 	the 	scope 	of
representation 	are 	reserved 	to 	the 	employer
and may 	not 	be 	subject 	to 	meeting 	and
conferring, 	provided 	that 	nothing 	herein may
be 	construed 	to 	limit 	the 	right 	of 	the
employer 	to 	consult with 	any 	employees 	or
employee 	organization on 	any matter 	outside
the 	scope 	of 	representation.
Again HEERA 	seeks 	to 	preserve 	various 	processes 	and policies 	in
use 	at 	the 	University 	by 	an 	academic 	senate. 	Further, 	subjects
not 	within 	the 	scope 	of 	representation 1 	such 	as 	degree
requirements, 	course 	content 	and 	curricula 	"may 	not 	be 	subject 	to
meeting 	and 	conferring."
To 	the 	extent, 	despite 	this 	guidance, 	that 	disputes 	arise
over 	whether 	a 	subject 	is 	within 	the 	scope 	of 	representation,
32

HEERA 	section 	3563(b) 	provides 	that 	PERB 	shall 	have 	the 	right,
power, 	duty 	and 	responsibility:
To 	determine 	in 	disputed 	cases 	whether 	a
particular 	item 	is 	within 	or without 	the
scope 	of 	representationo
With 	these 	specific 	exclusions, 	safeguards 	and 	processes 	in
place 1 	the 	Board 	concludes 	that 	HEERA 	coverage 	of 	students
employed 	as 	readers, 	tutors 	and 	associates 	poses 	no 	threat 	to 	the
pursuit 	of 	excellence 	at 	the 	University, 	or 	its 	academic
processes, 	or 	its 	ability 	to 	effectively manage 	its 	operations.
The 	University 	asserts 	that 	HEERA 	coverage 	for 	students
employed 	as 	readers, 	tutors 	and 	associates 	will 	have 	a
detrimental 	impact 	on 	the 	faculty/student 	mentor 	relationship.
This 	relationship, 	which 	is 	particularly 	essential 	between
graduate 	students 	and 	faculty 	members 	of 	dissertation 	committees,
is 1 	at 	its 	core 1 	an 	academic 	one. 	As 	noted 1 	HEERA 	specifically
excludes 	from 	the 	scope 	of 	representation 	at 	the 	University
"conditions 	for 	the 	award 	of 	certificates 	and 	degrees 	to
students, 11 	as 	well 	as 	11 the 	content 	and 	supervision 	of 	courses,
curricula 1 	and 	research papers." 	Therefore, 	HEERA 	contains
protections 	against 	the 	interjection 	of 	collective 	bargaining
into 	the 	academic 	aspects 	of 	the 	mentor 	relationship 	between
graduate 	students 	and 	dissertation 	committee members. 	With
regard 	to 	the 	more 	general 	relationship 	between 	student 	employees
and 	faculty, 	it 	appears 	that 	this 	protection 	and 	the 	existence 	of
a 	HEERA process 	designed 	to 	resolve 	disputes 	involving 	terms 	and
conditions 	of 	employment which 	are 	within 	the 	scope 	of
33

representation, 	would 	free 	student 	employees 	and 	faculty 	to
concentrate 	on 	the 	academic 	aspects 	of 	their 	relationships.
The 	University 	also 	argues 	that 	the 	ALJ's 	analysis 	under
this 	prong 	of 	the 	subsection 	(f) 	test 	is 	incorrectly 	based 	on 	a
presumption 	of 	the 	positive 	effects 	of 	collective 	bargaining
coverage 	for 	employees.
HEERA 	is 	a 	collective 	bargaining 	law. 	It 	is 	based 	on 	a
legislative 	determination 	that 	relations 	between higher 	education
employers 	and 	their 	employees 	will 	be 	more 	harmonious 	and
cooperative 	if 	employees 	have 	the 	right 	to 	be 	collectively
represented 	in 	those 	relations 	with 	regard 	to 	terms 	and
conditions 	of 	employment. 	Therefore, 	the 	Act 	is 	based 	on 	the
presumption 	of 	the 	positive 	aspects 	of 	collective 	bargaining.
Consideration 	of 	the 	ways 	in which 	those 	positive 	aspects 	will
apply with 	regard 	to 	student 	readers? 	tutors 	and 	associates 	is
the 	appropriate 	approach 	to 	application 	of 	the 	subsection 	(f)
statutory 	test.
As 	noted 	by 	the ALJ 1 	the 	free 	exchange 	of 	information 	would
be 	furthered 	by 	the 	presence 	of 	a 	collective 	bargaining
relationship 	between 	the 	University 	and 	student 	readers, 	tutors
and 	associates. 	Collective 	bargaining provides 	a 	proven
mechanism 	for 	communicating 	ideas 	and 	concerns 	about 	negotiable
working 	conditions 	and 	a 	process 	for 	resolving 	problems 	and
grievances. 	Under 	HEERAf 	that 	process 	includes 	mediation 	and
factfinding, 	procedures 	which 	are 	designed 	to 	reduce 	the
34

possibility 	of 	job 	actions 	which 	could 	interrupt 	or 	disrupt 	the
delivery 	of 	the 	vital 	services 	provided 	by 	the 	University.
(San 	Diego 	Teachers 	Association v. 	Superior 	Court 	(1979)
24 	Cal.3d 	1 	[154 	Cal.Rptr. 	893].) 	Clearly, 	the 	HEERA process 	is
more 	likely 	to 	result 	in 	dispute 	resolution 	prior 	to 	work
stoppages 	or 	interruptions 	than 	a 	labor 	relations 	environment
which 	does 	not 	provide 	for 	mediation 	and 	factfinding.
Based on 	the 	foregoing, 	and 	on 	the 	ALJ's 	discussion 	in 	the
attached 	proposed 	decision, 	the 	Board 	concludes 	that 	coverage
under 	HEERA 	of 	students 	employed 	as 	readers, 	tutors 	and
associates 	would 	further 	the 	purposes 	of 	the 	Act.
APPROPRIATENESS 	OF 	THE 	UNIT
The 	University 	objects 	to 	the 	finding 	by 	the ALJ 	that 	the
University waived 	its 	right 	to 	challenge 	the 	appropriateness 	of 	a
campus 	unit 	of 	student 	employees 	at UCSD. 	The 	University 	claims
that 	the 	issue 	of 	establishment 	of 	a 	campus 	unit 	versus 	a
statewide 	unit 	remains 	alive. 	The 	question 	has 	not 	been 	ripe 	for
consideration, 	the 	University 	asserts, 	while 	the 	issue 	of 	whether
student 	readers, 	tutors 	and 	associates 	are 	employees 	under 	HEERA
remains 	in 	dispute. 	Only when 	the 	employee 	status 	of 	the 	various
classifications 	has 	been 	determined, 	the 	University 	argues, 	is 	it
possible 	to 	evaluate 	the 	composition 	of 	the 	bargaining 	unit.
Until 	that 	time, 	the 	University 	argues, 	it 	should have 	the
opportunity 	to 	continue making 	its 	record 	on 	appropriateness
through 	a 	consolidated hearing.
35

The 	University 	offered 	this 	argument 	in 	its 	post 	hearing
reply 	brief 	to 	the 	ALJ. 	Thereu 	in 	a 	footnote, 	the 	University
observed 	that 	once 	the 	issue 	of 	employee 	status 	is 	determined
there 	might 	be 	issues 	remaining 	concerning 	the 	appropriateness 	of
the 	unit. 	The ALJ 	summarily 	rejected 	this 	assertion, 	noting 	that
the 	University had 	not 	previously 	contested 	the 	appropriateness
of 	a 	campus 	unit. 	Although 	the 	University 	previously had 	stated
that 	non-student 	employees 	should 	be 	accreted 	into 	bargaining
Unit 	No. 	18, 	it 	offered 	no 	evidence 	on 	this 	issue 	at 	the 	hearing
nor 	did 	it 	argue 	the 	question 	in 	its 	brief. 	Moreover, 	the
University 	never 	specifically contested the 	appropriateness 	of 	a
campus 	unit 	at 	UCSD 	should 	students 	employed 	as 	readers, 	tutors
and 	associates 	be 	determined 	to 	be 	employees 	under 	HEERA.
We 	agree 	with 	the ALJ 	that 	the 	University had 	a 	full
opportunity 	to 	raise 	issues 	of 	unit 	appropriateness 	in 	the
hearing. 	It 	failed 	to 	do 	so. 	We 	holdu 	therefore, 	that 	the
University 	has 	waived 	any 	arguments 	that 	the 	unit 	sought 	by 	the
Petitioner 	is 	inappropriate 	for 	reasons 	other 	than 	employee
status 	under 	subsection 	(f).
SUMMARY
The 	Board has 	the 	HEERA 	section 	3562(f)
test, 	and 	reached 	the 	following 	conclus
- the 	employment 	of 	students 	as 	readers 1 	tutors
and 	associates 	is 	contingent 	on 	status
as 	students;
- the 	services 	provided by 	students 	employed 	as
readers, 	tutors 	and 	associates 	are 	related 	to
their 	educational 	objectives;
36

- the 	educational 	objectives 	of 	students
employed 	as 	readers, 	tutors 	and 	associates
are 	subordinate 	to 	the 	services 	they 	perform;
and
- coverage 	under 	HEERA 	of 	students 	employed 	as
readers 1 	tutors 	and 	associates 	would 	further
the 	purposes 	of 	the 	Act.
Based 	on 	these 	conclusions, 	the 	Board 	finds 	that 	the
individuals 	in 	dispute 	in 	this 	case 	are 	employees 	under 	the
HEERA 1 	and 	that 	the 	unit 	requested 	by 	the 	Petitioner 	is
appropriate 	for 	negotiating with 	the 	Regents 	of 	the 	University 	of
California 	at 	the 	San 	Diego 	Campus, 	provided 	an 	employee
organization 	becomes 	the 	exclusive 	representative 	of 	that 	unit.
ORDER
The 	following 	unit 	is 	found 	to 	be 	appropriate 	for 	meeting
and 	negotiating 	at 	the 	University 	of 	California 	San Diego 	campus.
The 	unit 	shall 	Include 	All:
Readers
Tutors6
Associates 	In 	(Teaching 	a 	Class)
The 	unit 	shall 	Exclude 	All:
Managerial, 	Supervisorial 	and 	Confidential 	employees,
and 	All 	Other 	Employees.
An 	election will 	be 	conducted 	by 	the 	PERB 	San 	Francisco
Regional 	Director 	in 	accordance 	with 	PERB 	Regulation 	51300
6At 	the 	hearing, 	the 	University 	indicated 	that 	it 	may 	be
revising 	the 	tutor 	title 	and 	title 	codes. 	This 	order 	includes
all 	of 	the 	tutors 	that 	were 	the 	subject 	of 	this 	hearing,
performing 	both 	tutoring 	duties 	and 	undergraduate 	teaching
assistant 	duties 	by whatever 	title 	and 	in whatever 	title 	code
that may 	result 	from 	such 	revision.
37

et 	seq. 	unless 	the 	University 	grants 	voluntary 	recognition
pursuant 	to 	PERB 	Regulation 	51330.
The 	Board 	hereby 	ORDERS 	that 	this 	case 	be REMANDED 	to 	the
San 	Francisco 	Regional 	Director 	consistent 	with 	the 	attached
Notice 	of 	Decision 	and Notice 	of 	Intent 	to 	Conduct 	Election.
Member 	Dyer 	joined 	in 	this 	Decision.
Member 	Johnson's 	dissent 	begins 	on 	page 	39.
38

JOHNSON, 	Member, 	dissenting: 	I 	dissent 	from 	the 	conclusion
that 	students 	at 	the 	University 	of 	California, 	San Diego 	campus
(UCSD) 	serving 	as 	readers, 	tutors 	and 	associates 	are 	employees
for 	purposes 	of 	collective 	bargaining 	under 	the 	Higher 	Education
Employer-Employee 	Relations 	Act 	(HEERA or Act).
As 	the 	majority 	notes, 	HEERA 	is 	a 	collective 	bargaining
statute 	which 	governs 	the 	rights 	and 	obligations 	of 	employees,
employee 	organizations 	and 	the 	University 	of 	California
(University) 	to 	jointly determine 	terms 	and 	conditions 	of
employment. 	The 	Legislature 	determined 	in 	adopting 	HEERA,
however, 	that 	the 	right 	to 	collectively 	negotiate 	terms 	of
employment 	is 	not 	appropriate 	for 	all 	classes 	of 	University
employees. 	For 	example, 	the 	Legislature 	expressly 	excluded
managerial 	and 	confidential 	employees 	from 	coverage 	under 	HEERA.
(HEERA 	sec. 	3562(f) .) 	The 	Legislature 	also 	placed 	limits 	on
scope 	of 	representation matters 	which 	faculty 	units 	can address
through 	collective 	bargaining. 	(HEERA sec. 	3562(q) (4) .)
The 	Legislature 	also 	recognized 	that 	student 	academic
employees 	have 	a 	unique 	dual 	relationship 	with 	the 	University
which 	is 	different 	from any 	other 	employment 	relationship 	covered
by 	HEERA. 	Student 	academic 	employment, 	while 	educational 	in
nature, 	also 	provides 	a 	service 	to 	the 	University and, 	thus,
encompasses 	some 	of 	the 	characteristics 	of 	an 	employment
relationship. 	Concerned 	that 	a 	traditional 	collective 	bargaining
relationship may 	not 	be 	appropriate 	between 	the 	University 	and
student 	academic 	employees, 	the 	Legislature 	directed 	the 	Public
39

Employment 	Relations 	Board 	(PERB 	or Board) 	to 	make 	a 	case-by-case
assessment, 	weighing 	academic 	and 	employment 	considerations, 	and
determine 	whether 	collective 	bargaining 	rights 	should be 	extended
to 	student 	academic 	employees 	at 	issue. 	(Regents 	of 	the
University 	of 	California v. 	Public 	Employment 	Relations 	Bd.
(1986) 	41 	Cal.3d 	601, 	607 	[224 	Cal.Rptr. 	631] 	(Regents);
Association 	of 	Graduate 	Student 	Employees 	v. 	Public 	Employment
Relations 	Bd. 	(1992) 	6 	Cal.App.4th 	1133, 	1143 	[8 	Cal.Rptr.2d 	275]
rev. 	den. 	August 	13, 	1992 	(AGSE) .)
In 	HEERA 	section 	3562(f) 	(hereafter 	subsection 	(f)), 	the
Legislature 	set 	out 	the 	standard under 	which 	PERB 	is 	to 	determine
whether 	student 	academic 	employees 	are 	employees 	for 	purposes 	of
HEERA. 	Subsection 	(f) 	defines 	an 	employee 	of 	the 	University:
"Employee" 	or 	"higher 	education 	employee"
means 	any 	employee 	of 	the 	Regents 	of 	the
University 	of 	California, 	However,
managerial, 	and 	confidential 	employees 	shall
be 	excluded 	from 	coverage 	under 	this 	chapter.
The 	board may 	find 	student 	employees 	whose
employment 	is 	contingent 	on 	their 	status 	as
students 	are 	employees 	only 	if 	the 	services
they 	provide 	are 	unrelated 	to 	their
educational 	objectives, 	or. 	that 	those
educational 	objectives 	are 	subordinate 	to 	the
services 	they 	perform and 	that 	coverage 	under
this 	chapter would 	further 	the 	purposes 	of
this 	chapter. 	[Emphasis 	added.]
The 	majority 	opinion 	concludes 	under 	the 	first 	part
of 	the 	statutory 	test 	that 	the 	employment 	of 	readers, 	tutors 	and
associates 	at 	UCSD 	is 	contingent 	upon 	their 	status 	as 	students.
The 	record 	supports 	the 	finding 	that 	these 	student 	academic
employees 	must 	meet 	certain academic 	criteria, 	such 	as 	having
previously 	taken 	the 	course 	to 	which 	they 	are 	appointed 	and
40

having 	attained 	a 	certain 	level 	of 	proficiency 	in 	the 	subject
matter 	they 	are 	selected 	to 	teach 	or 	read 	for, 	in 	order 	to 	be
appointed 	to 	these 	positions. 	Therefore, 	their 	employment 	is
contingent 	on 	their 	student 	status. 	The 	fact 	that 	non-students,
most 	of 	whom are 	temporarily 	non-registered 	students, 	perform 	the
same 	functions 	as 	students, 	is 	irrelevant 	to 	the 	Board's
responsibility 	to 	determine 	the 	employment 	status 	of 	students
under 	subsection 	(f).
The 	majority also 	correctly 	finds 	that 	the 	services 	provided
by 	readers, 	tutors 	and 	associates 	are 	related 	to 	their
educational 	objectives 	under 	the 	second part 	of 	the 	statutory
test. 	The 	student 	employees 	in 	these 	titles 	are 	engaged 	in
academic 	work 	in 	subjects 	related 	to 	their 	fields 	of 	study.
Student 	employees 	in 	each 	of 	these 	titles 	have 	testified 	that
through 	these 	positions 	they 	have 	advanced 	their 	educational
objectives 	by 	developing 	a 	deeper 	understanding 	of 	the 	course
material, 	building 	important 	relationships 	with 	faculty 	and
developing 	skills 	which 	have 	helped 	them 	in 	their 	own 	course 	work
or 	will 	assist 	them 	in 	their 	future 	careers. 	Clearly, 	the
services 	provided by 	readers, 	tutors 	and 	associates 	are 	related
to 	the 	students' 	educational 	objectives.
I 	part 	company with 	the 	majority, 	however, 	under 	the 	third,
two-prong 	test. 	Contrary 	to 	the 	findings 	of 	the 	majority, 	the
evidence 	clearly 	supports 	a 	determination 	under 	the 	third 	part 	of
the 	statutory 	test 	that 	extending 	collective 	bargaining 	to
readers, 	tutors 	and 	associates 	would 	not 	further 	the 	purposes 	of
41

HEERA and, 	therefore, 	the 	petition 	should be 	dismissed.
Two-Prong 	Test
As 	discussed 	by 	the 	courts 	in 	Regents 	and AGSE, 	subsection
(f) 	requires 	the 	application 	of 	a 	two-prong 	test 	to 	determine
whether 	student 	academic 	appointees 	are 	employees 	for 	purposes 	of
HEERA. 	The 	first 	prong 	of 	the 	test 	requires 	PERB 	to 	consider
whether 	the 	student 	employees' 	educational 	objectives 	are
subordinate 	to 	the 	services 	they 	perform. 	The 	Board must 	then,
under 	the 	second prong 	of 	the 	test, 	evaluate 	whether 	the 	purposes
of 	the 	Act 	would 	be 	furthered 	by 	extending 	collective 	bargaining
rights 	to 	student 	academic 	employees 	in 	the 	disputed 	titles. 	The
Board must 	find 	both 	that 	the 	students' 	educational 	objectives
are 	subordinate 	to 	the 	services 	they provide 	and 	that 	the
purposes 	of 	HEERA would 	be 	furthered, 	to 	conclude 	that 	the
student 	academic 	employees 	in 	the 	disputed 	titles 	are 	employees
under 	HEERA.
Prong 	One: 	Are 	the 	Student 	Employees' 	Educational 	Objectives
Subordinate 	to 	Services 	they 	Provide?
To 	determine 	whether 	the 	student 	employees' 	educational
objectives 	are 	subordinate 	to 	the 	services 	they provide, 	the
court 	in AGSE 	tructed 	PERB 	to,
consider all 	the 	ways 	in which GSI 	and
GSR 	employment 	meet 	educational 	objectives 	of
the 	students 	and 	all 	the 	ways 	in which 	the
employment 	provides 	services 	and 	to 	compare
the 	value 	and 	effectiveness 	of 	the 	employment
meeting 	the 	students' 	educational
objectives 	with 	the 	value 	and 	effectiveness
of 	the 	employment 	providing 	services.
[AGSE 	at 	p. 	1143, 	emphasis 	original.]
The 	Board must 	then 	decide 	whether 	the 	work 	of 	readers, 	tutors
42

and 	associates 	is 	more 	valuable 	and 	effective 	meeting 	the
students' 	educational 	objectives 	or 	in 	providing 	services 	to 	the
University.
The 	majority 	incorrectly 	characterizes 	its 	obligation 	here
by weighing 	educational 	objectives 	against 	services 	and 	deciding
which 	are 	least 	able 	to 	be 	eliminated. 	In 	other words, 	the
majority 	concludes 	that 	the 	students' 	educational 	objectives 	are
subordinate 	to 	the 	services 	provided because 	the 	University
cannot 	function 	without 	these 	services.
The 	proper 	application 	of 	the 	test, 	however, 	requires 	the
Board 	to 	weigh 	the 	value 	and 	effectiveness 	in 	the 	students
achieving 	their 	educational 	objectives 	through 	these 	positions
against 	the 	value 	and 	effectiveness 	in 	the 	students' 	provision 	of
services 	to 	the 	University, 	and 	then 	determine 	which 	has 	greater
value. 	If 	the 	University 	can 	continue 	to 	adequately provide
these 	services 	without 	the 	assistance 	of 	readers, 	tutors 	or
associates, 	then 	the 	value 	to 	the 	student 	academic 	employees 	in
achieving 	their 	educational 	objectives 	through 	these 	positions 	is
greater 	than 	the 	services 	the 	students 	provide, 	and 	the 	students'
educational 	objectives 	are 	not 	subordinate 	to 	the 	services 	they
Applying 	this 	standard 	to 	the 	sputed 	titles, 	as 	scussed
below, 	I 	find 	that 	educat 	objectives 	of 	readers 	are
subordinate 	to 	the 	s 	ces 	to 	the 	Universi
However, 	the 	evidence 	demonstrates 	that 	the 	educational
objectives 	of 	tutors 	and 	associates 	are 	not 	subordinate 	to 	the
43

services 	they 	provide. 1
Readers
Readerships 	provide 	a 	wide 	range 	of 	effectiveness 	in meeting
readers' 	educational 	objectives. 	Some 	readers 	viewed 	their
readership 	simply 	as 	a 	job 	for 	which 	they 	were 	paid. 	Other 	than
obtaining 	an 	income, 	these 	readers 	believed 	they 	derived 	no
benefit 	from 	their 	work 	as 	a 	reader. 	In 	fact, 	some 	felt 	that 	the
time 	spent 	on 	reader 	duties 	took 	time 	away 	from 	their 	own
studies.
An 	equal 	number 	of 	readers 	found 	that 	in 	addition 	to
receiving 	an 	income, 	they 	achieved 	important 	educational
objectives 	through 	their 	readership. 	For 	example, 	by 	serving 	as
a 	reader, 	Lea 	Hubbard 	interacted with 	faculty 	and 	was 	able 	to
build 	relationships 	and 	get 	to 	know a 	particular 	faculty 	member
before 	deciding 	whether 	to 	invite 	him 	to 	participate 	on 	her
dissertation 	committee. 	Abraham Shragge 	purposefully 	sought 	to
work 	with 	different 	professors 	to 	observe 	and 	learn 	different
teaching 	methods. 	As 	a 	reader 	for 	a 	math 	class, 	Trang Vu
1As 	a 	preliminary matter, 	I 	find 	that 	the 	administrative 	law
judge's 	(ALJ) 	determination 	of 	the 	students' 	educational
objectives 	is 	too 	narrow 	and 	ignores 	the 	learning 	objectives
expressly 	identified 	by 	the 	students. 	Student 	academic 	employees
have 	a 	range 	of 	educational 	objectives 	which 	they 	seek 	to 	attain
as 	they 	progress 	toward 	the 	successful 	completion 	of 	their
academic 	careers 	and 	the 	beginning 	of 	their 	professional 	careers.
Based upon 	the 	evidence 	presented, 	including 	the 	students' 	stated
motives 	for 	seeking 	these 	positions, 	I 	conclude 	that 	the
educational 	objectives 	of 	readers, 	tutors 	and 	associates 	are, 	to
obtain: 	(1) 	a 	deeper 	understanding 	of 	the 	subject matter;
(2) 	experience which 	helps 	them 	define 	education 	and 	career
goals; 	(3) 	beneficial 	relationships 	with 	faculty; 	and 	(4)
valuable 	academic 	and 	career 	qualifications.
44

achieved a 	deeper 	understanding 	of 	the 	material 	and 	strengthened
her 	own 	problem 	solving 	skills.
Clearly what 	a 	student 	gains 	from 	a 	readership 	depends 	on
the 	student's 	motivation 	and 	expectations 	in 	seeking 	the
readership. 	If 	a 	reader 	takes 	advantage 	of 	the 	opportunities 	to
interact 	with 	faculty, 	observe 	and practice 	teaching methods, 	and
master 	the 	subject 	matter 	by 	reviewing 	the 	assignments 	and
attending 	the 	class 	lectures, 	a 	readership 	can be 	valuable 	and
effective 	in meeting 	educational 	objectives.
In meeting 	the 	needs 	of 	the 	University, 	Dr. 	Ellen 	Switkes
(Switkes), 	Assistant 	Vice 	President 	for 	Academic Advancement,
testified 	that 	"readers 	and 	tutors 	are 	an 	important 	component 	of
the 	University's 	academic 	enterprise." 	Without 	the 	services
provided by 	readers 	and 	tutors 	the 	ty 	would 	likely 	assign
fewer 	papers 	which, 	according 	to 	Dr. 	Switkes, 	"would be 	bad 	for
the 	educational 	enterprise." 	Michael 	Davidson, 	professor 	of
literature, 	also 	felt 	that 	he 	would 	have 	to 	alter 	his 	manner 	of
instruction 	if 	the 	services 	readers 	provide 	were 	not 	available.
He 	stated,
Well, 	if 	I 	didn't 	have 	a 	reader 	in an 	upper
division 	course 	that 	had 	a 	large 	enrollment,
. 	I 	would probably 	rely more 	on 	tests 	and
multiple 	choice 	kinds 	of 	situations 	than
papers, 	but 	I 	think 	that's 	pedagogically
irrespons 	e 	because 	... 	what 	you 	can 	ask
on 	a 	mult 	e 	choice 	test 	is 	pret 	minimal,
whereas 	on 	a 	paper you 	can 	get 	to 	see
what 	they're 	thinking. 	[Par.] 	but 	I
imagine 	you 	could 	hire 	outside 	the
University, 	a 	person 	to 	do 	some 	grading 	for
you.
Several 	witnesses 	proposed 	that 	the 	services 	provided 	by
45

readers 	could be 	performed by 	other University 	employees. 	For
example, 	Dr. 	Switkes 	suggested 	that 	faculty 	and 	teaching
assistants 	(TAs) 	could 	read more 	papers, 	hold more 	office 	hours
and 	conduct 	more 	tutorial 	sessions. 	Dr. 	Barbara 	Sawrey 	(Sawrey),
Vice 	Chair 	of 	the 	Chemistry and 	Biochemistry Department, 	stated
that 	readers 	are 	used 	in 	the 	Chemistry Department 	to 	facilitate
the 	rapid 	return 	of 	exams, 	but 	that 	in 	the 	absence 	of 	readers,
TAs 	could meet 	grading 	needs. 	Joseph Watson, 	Vice 	Chancellor 	for
Student 	Affairs, 	believes 	that 	it 	would be more 	efficient 	to 	hire
professional 	readers, 	rather 	than use 	students 	who 	are 	distracted
by 	their 	studies. 	However, 	because 	a 	readership 	can 	foster
beneficial 	mentoring 	and 	academic 	objectives, 	he 	explained 	that
the 	University 	promotes 	student 	readerships 	as 	a 	valuable 	part 	of
a 	student's 	educational 	experience.
The 	evidence 	suggests 	that 	the 	elimination 	of 	reader
services 	from 	the 	University 	altogether would 	change 	the
University's 	"educational 	enterprise," 	by 	causing 	faculty 	to
assign 	fewer 	papers 	or 	rely 	on multiple 	choice 	tests 	to measure
academic 	achievement. 	While 	suggesting 	that 	the 	University 	could
function 	without 	the 	services 	provided by 	readers, 	none 	of 	the
University witnesses 	indicated 	that 	it 	would 	be 	beneficial 	to 	the
academic 	enterprise. 	To 	maintain 	the 	current 	academic 	structure,
the 	University would 	have 	to 	assign 	these 	functions 	to 	other
University 	employees 	or 	develop 	a 	pool 	of 	professional 	readers.
Clearly 	it 	appears 	that 	it 	would 	be 	difficult 	for 	the 	University
to 	maintain 	its 	teaching mission 	if 	the 	services 	provided by
46

readers 	were 	eliminated 	or 	assigned 	to 	the 	faculty.
Nor 	has 	the 	University made 	a 	compelling 	case 	for 	the
position 	that 	it 	could 	replace 	the 	services 	provided by 	student
readers 	by 	hiring 	a 	pool 	of 	professional 	readers 	to 	attend
lectures 	and 	grade 	assignments. 	The 	large 	number 	of 	readers 	that
would be 	required 	and 	the 	sporadic 	nature 	of 	the 	services
provided by 	student 	readers 	appears 	to make 	this 	alternative
infeasible. 	A more 	plausible 	solution would be 	to 	assign 	reader
duties 	to 	TAs 	since 	grading 	and 	attending 	lectures 	are 	already
functions 	of 	the 	TA position.
Clearly, 	the 	services 	provided by 	readers 	are 	an 	important
component 	of 	the 	University's 	teaching 	mission and 	readerships
are 	a 	valuable 	and 	effective 	means 	of 	achieving 	this 	mission. 	In
contrast, 	the 	value 	and 	effectiveness 	of 	a 	readership 	in meeting
student 	educational 	objectives 	is 	not 	uniformly 	applicable 	to 	all
student 	readers. 	For 	these 	reasons, 	I 	conclude 	that 	the
educational 	objectives 	of 	readers 	are 	subordinate 	to 	the 	services
they 	provide.
Tutors
In 	contrast 	to 	readerships, 	employment 	as 	a 	tutor 	is
consistently 	effective 	in meeting 	the 	tutors' 	educational
objectives. 	Tutors 	gain a 	deeper 	understanding 	of 	the 	course
material 	by 	having 	to 	review and 	explain 	it 	to 	other 	students 	and
they 	are 	better prepared 	for 	their 	own 	advanced 	courses 	and
exams. 	Appointment 	to 	a 	tutor 	position 	leads 	to 	regular
interaction with 	faculty 	from 	which 	students 	develop 	beneficial
47

student/faculty 	relationships 	and 	obtain 	insight 	into 	department
programs 	and 	academic 	opportunities. 	Working 	closely with
faculty 	members 	also 	assists 	the 	faculty 	in writing 	better
letters 	of 	recommendation 	for 	tutors 	for 	graduate 	school
admission 	and 	employment 	opportunities. 	Tutors 	are 	able 	to
experience 	teaching, 	confirm 	career 	goals 	and 	learn 	teaching,
communication and 	leadership 	skills 	which 	are 	important 	in
professional 	endeavors. 	Work 	as 	a 	tutor 	also 	provides 	valuable
experience 	for 	students 	entering 	the 	job market.
The 	varied 	functions 	of 	a 	tutor, 	reviewing 	material,
instructing 	other 	students, 	grading 	assignments 	and 	interacting
with 	faculty, 	provide 	a 	valuable 	and 	effective method 	to 	achieve
the 	students' 	educational 	objectives.
The 	services 	provided by 	tutors 	are 	also 	important 	to 	the
University's 	teaching mission. 	Tutors 	assigned 	to 	the 	Office 	of
Academic 	Support 	and 	Instrumental 	Services 	(OASIS) 	provide
individual 	and 	small 	group 	tutoring 	to 	encourage 	student
retention 	and 	help 	students 	succeed academically. 	Tutors 	serving
as 	TAs 	lead 	discussion 	sections 	for 	large 	classes, 	reviewing 	the
material 	and answering 	questions 	for 	the 	students 	who 	are 	unable
to 	meet 	individually with 	the 	professor.
However, 	the 	evidence 	indicates 	that 	others 	could more
efficiently provide 	these 	services. 	As 	Acting 	Provost 	Daniel
Wulbert 	(Wulbert) 	noted, 	the 	use 	of 	student 	tutors 	requires 	the
University 	to 	constantly 	recruit 	and 	train 	new 	tutors. 	Tutors
receive 	training 	for 	a 	full 	quarter and, 	yet, 	their 	tenure 	as 	a
48

paid 	tutor may 	end 	after 	only a 	single 	quarter.
There 	is 	evidence 	that 	the 	services 	required 	by 	the 	OASIS
program 	could 	effectively be 	provided by 	career 	employees. 	For
example, 	the 	tutorial 	program at 	the 	University's 	Los 	Angeles
campus 	(UCLA) 	was 	successfully 	operated 	for 	years 	by 	career
employees. 	UCLA 	subsequently 	decided, 	however, 	to 	utilize
undergraduate 	students 	to 	provide 	tutoring 	services 	when 	it
realized 	that 	the 	students 	themselves 	would 	benefit 	educationally
from 	experience 	as 	a 	tutor. 	By appointing 	career 	employees 	to
the 	OASIS 	program, 	tutorial 	services 	would 	continue 	to 	be
available 	and 	it 	would 	significantly 	lessen 	the 	continuing
efforts 	to 	recruit 	and 	train 	tutors, 	limiting 	turnover 	and
providing 	stability 	to 	the 	program.
Similarly, 	the 	services 	currently provided by 	undergraduate
TAs, 	were 	previously provided by 	graduate 	student 	TAs 	and 	post
doctoral 	fellows. 	Jean 	Fort, 	Assistant 	Dean 	of 	Graduate 	Studies
and 	Research, 	explained 	that 	during 	a 	sudden 	expansion 	in 	the
undergraduate 	population, 	UCSD 	considered hiring 	recent
University 	graduates 	to 	provide 	TA services. 	However, 	when 	the
University 	discovered 	that 	serving 	as 	a 	TA was 	a 	valuable
learning 	experience 	for 	the 	students, 	it 	decided 	to 	use
undergraduates 	in 	these 	positions. 	As 	a 	secondary 	benefit,
serving 	as 	a 	TA provides 	the 	students 	with 	financial 	support 	so
they 	can 	better 	focus 	on 	their 	own 	studies.
Finally, 	the 	services 	provided by 	graduate 	student 	tutors 	to
coordinate 	seminars 	and 	conferences, 	while 	of 	some 	educational
49

value 	to 	the 	University, 	do 	not 	appear 	to 	be 	essential 	services
that 	only a 	graduate 	student 	could perform.
While 	the 	services 	provided by 	tutors 	are 	important 	to 	the
University, 	it 	is 	not 	essential 	that 	these 	services 	be 	performed
by 	tutors. 	On 	the 	other 	hand, 	the 	evidence 	demonstrates 	that
experience 	as 	a 	tutor 	is 	a 	valuable 	and 	effective means 	to
achieve 	the 	students' 	educational 	objectives. 	For 	these 	reasons,
I 	find 	that 	appointment 	as 	a 	tutor 	is 	more 	valuable 	and 	effective
in meeting 	the 	students' 	educational 	objectives 	than 	in 	providing
services 	to 	the 	University 	and, 	therefore, 	I 	conclude 	that 	the
tutors' 	educational 	objectives 	are 	not 	subordinate 	to 	the
services 	they 	perform.
Associates
Employment 	as 	an 	associate 	is 	also 	effective 	in meeting 	the
students' 	educational 	objectives. 	Once 	selected, 	associates 	are
given 	full 	autonomy 	over 	teaching 	their 	assigned 	course, 	from
selecting 	textbooks 	to 	lecturing 	to 	assigning 	grades. 	Richard
Attiyeh, 	Vice 	Chancellor 	for 	Research 	and Dean 	of 	Graduate
Studies, 	explained, 	an 	associate 	is 	a 	student 	who 	is 	"virtually
qualified 	to 	accept 	a 	regular 	faculty 	appointment 	someone
who 	is 	quite 	far 	along 	in 	their 	professional 	training. 11
Experience 	as 	an 	associate 	assists 	graduate 	students 	in
achieving 	professional 	training 	goals. 	Associates 	are 	able 	to
practice 	teaching 	and 	develop 	teaching 	skills. 	In 	doing 	so, 	they
increase 	their 	understanding 	of 	the 	material 	and 	their 	ability 	to
communicate 	information 	to 	other 	students. 	It 	is 	also 	a 	highly
50

desired 	experience 	for 	their 	curriculum vitaes 	which 	gives
associates 	an 	advantage 	when 	seeking 	employment 	as 	college
instructors. 	Experience 	as 	an 	associate 	also 	meets 	educational
objectives 	by 	fulfilling 	academic 	requirements 	to 	perform
teaching 	duties.
Employment 	as 	an 	associate 	also 	meets 	the 	needs 	of 	the
University by 	filling 	an 	instructor position. 	However, 	the 	use
of 	associates 	to 	meet 	this 	need 	is 	not 	essential 	to 	the
University. 	As 	Provost 	Wulbert 	explained, 	it 	is 	more 	effective
to 	use 	lecturers 	than 	associates. 	Lecturers 	comprise 	a 	large
pool 	of 	trained 	instructors 	who 	serve 	the 	needs 	of 	the
University. 	Lecturers 	repeatedly 	teach 	the 	same 	subjects, 	thus,
limiting 	the 	need 	to 	prepare 	new 	course material 	each 	quarter.
Nor 	are 	they 	distracted by 	their 	own 	studies 	as 	associates 	are.
Finally, 	they 	require 	no 	supervision 	and 	are 	significantly 	less
costly 	than 	associates.
By 	appointing 	graduate 	students 	who 	are 	near 	completion 	of
their 	Ph.D. 	degree 	to 	associate 	positions, 	the 	University 	is
providing 	them with 	an 	opportunity 	to 	gain 	experience 	in 	their
future 	professions, 	more 	so 	than 	fulfilling 	the 	University's
service 	needs. 	Because 	the 	University 	can 	obtain 	the 	services
provided by an 	associate 	more 	efficiently and 	less 	costly by
utilizing 	lecturers, 	employment 	as 	an 	associate 	is 	more 	valuable
and 	effective 	in meeting 	the 	students' 	educational 	objectives
than 	in 	providing 	teaching 	services 	for 	the 	University. 	Thus, 	I
conclude 	that 	the 	educational 	objectives 	of 	associates 	are 	not
51

subordinate 	to 	the 	services 	they provide.
Applying 	the 	second prong 	of 	the 	test 	to 	readers, 	tutors 	and
associates, 	I 	find 	that 	the 	purposes 	of 	HEERA would 	not 	be
furthered 	by 	extending 	collective 	bargaining 	rights 	to 	students
in 	the 	disputed 	titles.
Prong 	Two: 	Would 	Coverage 	Under 	the 	Act 	Further 	the 	Purposes 	of
HEERA?
In 	reviewing 	the 	purposes 	of 	HEERA, 	the 	majority 	opinion
cites 	policies 	which 	encourage 	employee 	participation 11 in 	the
determination 	of 	conditions 	of 	employment 	which 	affect 	them."
(HEERA sec. 	3560(e) .) 	However, 	reliance 	on 	the 	policies 	which
describe 	the 	rights 	of 	University 	employees 	disregards 	PERB's
obligation 	to 	first 	determine 	whether 	student 	academic 	employees
are 	employees 	under 	HEERA entitled 	to 	negotiate 	terms 	of 	their
employment.
In 	adopting 	HEERA, 	the 	Legislature 	declared 	that, 	"the
people 	of 	the 	State 	of 	California 	have 	a 	fundamental 	interest 	in
the 	development 	of 	harmonious 	and 	cooperative 	labor 	relations"
between 	the 	University 	and 	its 	employees. 	(HEERA 	sec. 	3560(a) .)
However, 	in 	appreciation 	of 	the 	academic 	mission 	of 	the
University, 	the 	Legislature, 	when 	adopting 	HEERA, 	recognized 	that
collective 	bargaining must 	exist 	in an 	atmosphere 	which
encourages 	the 	long-accepted 	practice 	of 	iijoint 	decisionmaking
and 	consultation" 	between 	the 	University and 	its 	academic
employees, 	and 	preserves 	the 	role 	of 	the 	faculty 	in 	setting
policy 	on 	academic 	and professional 	matters 	through 	the 	Academic
Senate 	and 	other 	"shared governance mechanisms 	and 	practices."
52

(HEERA sec. 	3561(b) .) 	These 	policies 	demonstrate 	that 	the
Legislature 	was 	conscious 	of 	the 	unique 	role 	academic 	employees
have 	in 	setting 	policy 	on 	academic 	and 	professional 	matters 	on
University 	campuses 	and 	envisioned a 	cautious 	application 	of
collective 	bargaining 	which 	did 	not 	displace 	the 	existing 	role 	of
academic 	employees 	in 	the 	academic 	mission 	of 	the 	University.
In 	addition, 	the 	Legislature 	was 	attentive 	to 	the 	goal 	of
preserving 	academic 	freedom 	in 	the 	University, 	and 	also 	declared
that, 	"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. 	n 	(HEERA 	sec. 	3561(c) .)
The 	purposes 	of 	HEERA 	set 	forth 	by 	the 	Legislature 	are
intended 	to 	promote 	harmonious 	and 	cooperative 	labor 	relations
between 	the 	University 	and 	its 	employees 	through a 	collective
bargaining 	relationship 	and, 	at 	the 	same 	time, 	respect 	the
importance 	of 	the 	academic 	mission 	of 	the 	University 	to 	the
people 	of 	the 	State 	of 	California. 	To 	determine 	whether 	this
delicate 	balance 	would 	be 	furthered 	by 	extending 	collective
bargaining 	rights 	to 	student 	academic 	employees 	serving 	as
readers, 	tutors 	and 	associates, 	the 	effects 	of 	collective
bargaining must 	be 	considered.
Separation 	of 	Academic 	and 	Employment 	Issues
An 	important 	consideration 	in deciding 	whether 	students
appointed 	to 	reader, 	tutor 	and 	associate 	positions 	should 	be
permitted 	to 	engage 	in 	collective 	bargaining 	to 	determine 	terms
53

and 	conditions 	of 	employment, 	is 	whether 	academic 	matters 	can be
separated 	from 	the 	employment 	aspects 	of 	student 	academic
employment.
Student 	academic 	employees 	experience 	a 	dual 	relationship
with 	the 	University. 	As 	students, 	they 	expect 	the 	University 	to
assist 	them 	in 	increasing 	their 	knowledge 	and 	developing 	skills
necessary 	for 	professional 	careers, 	including 	the 	ability 	to
evaluate 	information, 	communicate 	verbally 	and 	in writing, 	and
conduct 	research. 	They 	also 	expect 	the 	University 	to 	provide
them with 	opportunities 	to 	practice 	these 	skills 	in a
nonthreatening 	setting 	before 	they 	enter a 	competitive 	job
market. 	As 	employees, 	they 	are 	expected 	to 	provide 	services 	for
the 	University by performing 	certain 	duties 	in 	areas 	related 	to
their 	fields 	of 	study.
In 	Regents 	of 	the 	University 	of 	California 	(AGSE) 	(1989)
PERB 	Decision No. 	730-H 	(UC 	(AGSE)), 	the 	Board held 	that 	students
at 	UC 	Berkeley 	in 	graduate 	student 	instructor 	(GSI) 	and 	graduate
student 	researcher 	(GSR) 	pos 	ions 	were 	not 	employees 	under
HEERA. 	Board 	found,
. 	in 	some 	instances, 	it 	is 	virtually
impossible 	to 	separate 	academics 	from
e 	cs. 	For 	example, 	the 	overlapping
concerns 	the 	select 	and 	retention 	of
GSis 	and GSRs, 	of 	work, 	salary, 	and 	job
security would 	involve 	the 	parties 	bargaining
over 	the 	current 	academic 	practices. 	[p. 	54]
In 	the 	court 	reviewed 	this 	sion, 	that 	the
record 	supported 	the 	Board's 	findings. 	The 	court 	stated, 	"If 	all
these 	issues 	were 	removed 	from 	the 	bargaining 	process, 	too 	few
54

significant 	or meaningful 	issues 	would 	remain 	to 	make 	the 	process
worthwhile. 11 	(AGSE 	at 	p. 	1147.)
The 	Petitioner 	in 	this 	case, 	the 	Association 	of 	Student
Employees, 	U.A.W., 	United Automobile, 	Aerospace 	and Agricultural
Implement 	Workers 	of 	America, 	AFL-CIO, 	contends 	that 	the
separation 	of 	academic 	and 	employment 	issues 	can be 	accomplished
through 	the 	collective 	bargaining 	process 	by 	negotiating 	the
parameters 	of 	the 	bargaining 	relationship. 	Union witnesses 	point
to 	contract 	language 	successfully negotiated 	at 	other
universities 	which 	limits 	bargaining 	to 	employment 	matters 	and
restricts 	an 	arbitrator's 	authority 	to 	rule 	on academic 	matters.
However, 	University 	witnesses, 	including 	those 	from 	other
universities 	where 	contracts 	include 	the 	cited 	language, 	contend
that 	contractual 	language 	written 	to 	avoid 	academic 	issues 	is 	not
adequate 	to 	prevent 	encroachment 	into matters 	of 	academic 	policy.
For 	example, 	job 	security provisions 	in 	other university
contracts 	which 	require 	automatic 	reappointments 	or 	prevent 	the
university 	from 	limiting 	the 	number 	of 	times 	a 	student 	can 	be
appointed, 	hamper 	the 	university's 	ability 	to 	encourage 	students
to 	move 	forward 	with 	their 	studies 	and 	attract 	new 	students
through 	the 	availability 	of 	financial 	support. 	Susan 	Light
testified 	that 	she 	selected UCSD 	for 	her 	graduate 	studies 	because
there 	were 	jobs 	available 	and 	she 	could 	not 	fund 	her 	graduate
education without 	some 	type 	of 	employment.
At 	the 	University 	of 	Manitoba, 	the 	university must 	reappoint
students 	each 	quarter 	unless 	they 	are 	removed 	for 	disciplinary
55

reasons. 	In AGSE, 	the 	court 	cited an 	example 	involving 	Dutch
graduate 	students 	where 	collective 	bargaining 	led 	to 	a 	"stagnant
system because 	it 	has 	saturated 	the 	university 	system with
permanent 	employees 	and prevented 	talented 	people 	from 	pursuing
academic 	careers." 	(AGSE 	at 	p. 	1147.)
The 	selection 	of 	student 	academic 	employees 	also 	involves
academic 	matters. 	Faculty 	could 	lose 	the 	flexibility 	to 	guide
students 	to 	assignments 	which 	would be 	beneficial 	to 	the 	student.
Dr. 	Paul 	Saltman, 	professor 	of 	biology, 	testified 	that 	he 	has
sought 	exceptions 	to 	student 	employee 	appointment 	criteria 	when
he 	felt 	the 	student 	would 	benefit 	from 	the 	experience. 	He 	stated
he 	has 	observed 	"transcending 	experiences 	... 	where 	the
opportunity 	[to 	teach] 	has 	literally 	changed a 	kid's 	life. 11
Joseph Duggan 	(Duggan), 	Professor 	and Associate 	Dean 	of 	the
Graduate 	Division 	at 	UC 	Berkeley, 	testified 	that 	he 	has 	made
exceptions 	to 	student 	appointment 	requirements 	involving 	the
level 	of 	experience, 	grade 	point 	average, 	academic 	standing 	and
support 	time 	limits. 	He 	also 	expressed a 	concern 	that 	with 	union
representation 	any 	exceptions 	to 	appointment 	criteria 	or
financial 	support 	limits 	for 	student 	employees 	would 	set 	a
precedent 	that 	the 	union 	would 	use 	to 	alter 	appointment 	criteria.
At 	the 	University 	of 	Wisconsin, 	the 	university must 	obtain
the 	union's 	permission before 	it 	can 	permit 	a 	student 	to 	work
less 	than 	a 	minimum number 	hours. 	Dr. 	Judith 	Craig 	(Craig),
Associate 	Dean 	at 	the 	University 	of 	Wisconsin, 	testified 	that 	the
university 	finally 	stopped 	seeking 	union approval 	because 	the
56

requests 	were 	never 	granted, 	even when 	it 	was 	the 	student 	who
wanted 	and 	needed 	the 	reduced workload 	in 	order 	to 	balance 	their
studies.
At 	the 	University 	of 	Oregon, 	the 	faculty 	finds 	it 	difficult
to 	prepare 	student 	academic 	employee 	performance 	evaluations
because 	they 	are 	barred 	from 	considering a 	student's 	mastery 	of
the 	subject 	matter 	they 	teach. 	A similar provision 	at 	UCSD,
would 	alter 	graduate 	student 	evaluations 	currently prepared 	to
measure 	how 	successfully 	graduate 	students 	are 	progressing 	in
their 	academic 	careers.
In 	the 	proposed 	decision, 	the 	ALJ 	suggested 	that 	to 	prevent
an 	infringement 	on 	the 	University's 	academic 	discretion, 	the
University 	should 	simply maintain 	a 	strong 	position 	against 	such
proposals 	or 	refuse 	to 	bargain 	altogether. 	The 	ALJ 	concluded
that 	when 	disputes 	arise 	over 	scope 	of 	representation 	issues,
PERB 	can 	distinguish 	academic 	from 	employment 	matters.
In 	addressing 	similar 	concerns 	over 	the 	difficulty 	in
separating academic 	and 	employment 	issues, 	the 	court 	in AGSE
stated:
The 	evidence 	before 	PERB warned 	of
intractable 	problems 	in 	defining 	and 	limiting
the 	scope 	of 	representation 	to 	prevent
interference 	with 	academic 	policy. 	PERB 	was
not 	required 	to 	conduct 	a 	laboratory
experiment 	by 	granting 	bargaining 	rights 	and
then 	overseeing 	difficult 	and 	potentially
protracted 	efforts 	to 	define 	the 	scope 	of
that 	representation. 	[AGSE 	at 	pp. 	1147-
1148.]
Accordingly, 	the 	court 	concluded 	that 	merely 	because 	PERB 	is
authorized 	to 	resolve 	scope 	of 	representation matters, 	the 	Board
57

is 	not 	required 	to 	ignore 	the 	difficulty 	in 	separating 	academic
and 	employment 	issues 	and 	extend 	collective 	bargaining 	rights 	to
student 	academic 	employees.
The 	use 	of 	the 	grievance 	procedure 	is 	another 	avenue 	to
academic 	matters. 	Although 	contract 	language 	purports 	to 	limit
the 	authority 	of 	arbitrators 	to 	judge 	academic 	decisions,
grievances 	claiming 	procedural 	matters 	can 	lead 	to 	academic
issues.
For 	example, 	at 	several 	universities 	the 	unions 	have 	used
the 	grievance 	procedure 	to 	challenge 	teaching 	requirements 	which
are 	prerequisites 	for 	a 	degree. 	The 	unions 	have 	charged 	that
teaching 	requirements 	unlawfully 	transfer 	work 	out 	of 	the
bargaining 	unit. 	At 	the 	University 	of 	Wisconsin, 	the 	union
asserted 	that 	the 	faculty 	have 	no 	role 	in 	establishing 	department
teaching 	requirements, 	instead 	they 	claimed 	this 	decision 	rests
with 	the 	university and 	the 	union 	at 	the 	bargaining 	table.
Other 	grievances 	have 	challenged 	the 	requirement 	that 	to
receive 	an 	appointment 	students 	must 	be 	in good academic
standing. 	At 	the 	University 	of 	Wisconsin, 	the 	union 	filed 	a
grievance 	alleging 	that 	the 	university 	failed 	to 	post 	the 	job
criteria 	for 	TA positions. 	In 	fact, 	the 	criteria 	had been
posted, 	but 	the 	union used 	the 	opportunity 	to 	challenge 	the
academic 	criteria.
In 	the 	University 	of 	California 	system, 	the 	faculty 	members
of 	the 	Academic 	Senate 	are 	responsible 	for 	all 	academic 	policies
and 	standards. 	The 	intrusion 	of 	an 	arbitrator 	into 	academic
58

matters 	would undermine 	the 	faculty's 	academic 	policy making 	role
contrary 	to 	the 	stated purposes 	of 	HEERA. 	In 	addition, 	the
establishment 	or modification 	of 	academic 	policies 	through
collective 	bargaining 	would 	not 	further 	the 	pursuit 	of 	excellence
in 	teaching, 	research 	and 	learning, 	nor 	would 	it 	preserve 	the
faculty's 	role 	in 	setting policy 	on academic 	matters.
Student/Faculty Relationships
The 	Board 	and 	the 	court 	in AGSE 	also 	considered 	the 	11 complex
and 	fragile" 	nature 	of 	student/faculty mentor 	relationships. 	The
court 	cited 	evidence 	in 	support 	of 	the 	Board's 	conclusion 	that
collective 	bargaining 	would 	interfere 	with 	these 	"unique
relationships."
In 	the 	proposed 	decision, 	the 	ALJ 	found 	that 	a 	mentor
relationship 11 is 	limited 	primarily 	to 	the 	relationship 	between a
graduate 	student 	and 	a 	dissertation 	committee 	chair, 	or 	sometimes
a 	committee 	member, 11 a 	relationship 	that 	offers 	11 intense,
lifelong 	guidance." 	It 	is 	true 	that 	a 	strong mentoring
relationship 	between 	Ph.D. 	candidates 	and 	their 	dissertation
directors 	is 	an 	important 	factor 	in 	the 	success 	completion 	of
a 	Ph.D. 	degree. 	However, 	this 	view 	of 	student/faculty
relationships 	is 	much 	too 	narrow and 	sregards 	the 	support 	and
guidance 	undergraduates 	and 	students 	receive. 	If
fact 	mentor 	relationships 	are 	1 	ted 	to 	Ph.D. 	candidates
and 	their 	ssertation 	committee 	members, 	why 	does 	the 	rsity
sponsor 	numerous 	programs 	designed 	to 	encourage 	the 	development
of 	mentor 	relationships 	between 	faculty 	and 	undergraduate
59

students?
Several 	witnesses 	described 	a 	mentoring 	relationship 	as 	one
where 	a 	professor 	will 	assist 	a 	student 	in 	their 	academic 	or
professional 	development. 	Students 	turn 	to 	faculty 	for 	advice
and 	help 	in 	clarifying 	their 	academic 	and 	career 	goals, 	and
receive 	guidance 	to 	assist 	them 	in 	achieving 	their 	goals.
Student 	witnesses 	described 	interactions 	with 	their 	supervising
faculty 	members 	as 	mentor 	relationships. 	For 	example, 	Britt
Loftesnes, 	a 	reader 	for 	a 	Teacher 	Education 	Program 	course,
characterized 	her 	supervising 	faculty 	member 	as 	a 	mentor who
advised 	her 	on 	teaching 	credential 	options 	and 	assisted 	her 	with
career planning 	issues. 	Lea 	Hubbard 	testified 	that 	her
readership 	led 	to 	a 	mentor 	relationship 	with 	her 	supervising
professor. 	Her mentor 	encouraged her 	to 	write 	a 	paper which 	was
accepted 	for 	presentation 	at 	a 	national 	conference. 	Dr. 	Sawrey
described 	the 	camaraderie 	which 	exists 	between 	readers, 	TAs 	and
faculty 	because 	they 	are 	working 	as 	a 	team on 	an 	educational
venture. 	The 	student 	employees 	are 	socialized 	into 	the
department 	where 	they 	interact 	with 	and 	learn 	from both 	faculty
and 	advanced 	students.
Disputes 	which 	arise 	between 	students 	and 	faculty 	have 	the
potential 	to 	damage 	student/faculty 	relationships. 	The
University 	contends 	that 	an 	informal, 	collaborative 	approach 	to
the 	resolution 	of 	disputes 	creates 	the 	least 	impact 	to
student/faculty 	relationships. 	Union 	witnesses, 	however, 	assert
that 	a 	formal 	grievance 	process 	depersonalizes 	disputes 	between
60

students 	and 	faculty. 	David Hecker 	(Hecker), 	Executive Assistant
to 	the 	President 	of 	the 	Metropolitan Detroit 	AFL-CIO, 	argued 	that
with 	collective 	bargaining, 	disputes 	are 	resolved 	by 	the 	union
and 	the 	employer. 	He 	stated 	that 	a 	formal 	process 	removes 	the
perception 	that 	an 	individual 	student 	employee 	is 	challenging 	an
individual 	faculty 	member.
The 	University 	rejects 	the 	contention 	that 	collective
bargaining 	depersonalizes 	disputes. 	Several 	witnesses 	testified
that 	faculty 	view 	the 	formal 	grievance 	process 	as 	an 	accusatory
approach. 	Dr. 	Craig 	stated 	there 	is 	a 	sense 	of 	discomfort 	among
the 	faculty 	at 	having 	been publicly 	charged. 	Dean Duggan
described 	the 	impact 	of 	a 	formal 	process:
[I]n 	the 	appeals 	process 	people 	-- 	people 	get
very 	defensive, 	they 	get 	offended by what's
said. 	They're 	called on 	the 	carpet, 	they
have 	to 	answer 	charges, 	they become
embarrassed. 	If 	the 	person who's 	bringing
the 	appeal 	brings 	a 	lawyer 	then 	everything
is 	racheted 	up 	to 	a 	legal 	level.
Even 	union 	witness 	Ross 	Frank, 	currently a 	professor 	at 	UCSD 	and
formerly 	a 	student 	member 	of 	the 	Association 	of 	Graduate 	Student
Employees 	(AGSE) 	executive 	board 	at 	UC 	Berkeley, 	testified 	that
he 	has 	seen 	cases 	where 	professors 	reacted 	to 	a 	grievance 	like
were 	personal 	attacked. 	He 	stated 	that 	resolving
evances 	can be 	emotional 	and 	contentious, 	are 	ses 	for
both 	the 	s 	and 	the 	affected 	faculty 	member.
The 	of 	being 	publicly 	charged also 	affects
faculty's 	academic 	decision making 	role. 	Dean Duggan 	testified
that 	faculty 	are 	constantly worried about 	what 	actions 	to 	take
61

because 	of 	their 	concern 	about 	how 	the 	union 	will 	respond. 	At 	UC
Berkeley when a 	professor withdrew his 	signature 	from a 	graduate
student's 	dissertation 	after 	the 	student 	failed 	to 	make 	certain
changes 	in 	the 	final 	draft, 	the 	union 	claimed 	the 	professor 	was
retaliating 	against 	the 	student 	because 	he 	participated 	in 	a
recognition 	strike. 	The 	fact 	that 	scholarly 	criticism could 	be
interpreted 	as 	retaliatory may 	have 	a 	chilling 	effect 	on 	academic
integrity.
The 	union's 	position 	that 	with 	collective 	bargaining
disputes 	are 	resolved 	between 	the 	union 	and 	the 	employer,
supports 	the 	view 	expressed by Dean Duggan 	that 	union
representation 	tends 	to 	make 	students 	think 	of 	faculty 	as 	a
monolithic 	institution, 	rather 	than 	as 	individuals.
Consequently, 	students 	may 	not 	realize 	the 	effect 	of 	publicly
charging 	their 	faculty member when 	they 	file 	a 	grievance. 	For
example, 	a 	graduate 	student 	at 	the 	University 	of 	Michigan 	used
the 	formal 	grievance 	procedure 	to 	resolve 	a 	workload 	problem.
The 	student 	believed 	that 	she 	was 	filing 	her 	grievance 	"against
this 	huge 	impersonal 	university, 	but 	. 	. 	she 	found 	that 	in
effect 	the 	grievance 	was 	filed 	against 	this 	faculty 	member, 	which
happened 	to 	be 	her major 	Professor. 11 	The 	professor was 	11 an
emotional 	basket 	case" 	after 	being 	charged 	in 	the 	grievance. 	The
relationship 	between 	the 	student 	and 	professor was 	irreparably
damaged 	and 	the 	student 	who 	was 	only a 	few months 	from 	completing
her master's 	degree 	left 	the 	university 	to 	finish 	her 	degree
program 	elsewhere. 	The 	dean 	was 	unable 	to 	attempt 	to 	heal 	the
62

relationship 	between 	the 	student 	and 	the 	professor 	because 	the
union 	insisted 	that 	there 	be 	no 	direct 	contact 	with 	the 	student.
Similarly, 	at 	UC 	Berkeley a 	workload 	grievance 	was 	filed 	on
behalf 	of 	several 	readers. 	During 	the 	hearing 	one 	reader
expressed dismay 	that 	the 	supervising 	faculty 	members 	were 	called
to 	testify about 	the 	students' 	assigned 	duties, 	believing 	that
the 	University was 	pitting 	the 	faculty 	against 	the 	students.
At 	the 	University 	of 	Wisconsin 	which 	has 	the 	longest 	history
of 	collective 	bargaining 	with 	graduate 	students, 	the 	students
recognize 	the 	potential 	damage 	to 	student/faculty 	relationships
when 	they publicly 	charge 	their 	faculty 	members. 	The 	students
have 	sought 	to 	regain 	the 	ability 	to 	file 	anonymous 	grievances.
They 	realize 	they must 	continue 	to 	work 	and 	study with 	the
faculty 	and 	need 	faculty 	recommendations 	for 	jobs, 	and 	they 	do
not 	want 	to 	risk 	jeopardizing 	their 	relationships 	with 	their
faculty 	members 	by 	identifying 	themselves 	in 	their 	grievances.
Another 	factor 	in 	the 	relations 	between 	students 	and 	faculty
involves 	the 	union's 	need 	to 	constantly demonstrate 	its
effectiveness 	as 	new 	students 	enter 	the 	university. 	As 	a 	means
of 	building 	support 	among 	students, 	witnesses 	described union
efforts 	to 	increase 	grievance 	filing, 	publicize 	disputes 	and
portray 	the 	university 	in 	an 	adversarial 	role. 	Stedman Upham,
Dean 	of 	the 	Graduate 	School, 	testified 	that 	at 	the 	University 	of
Oregon 	grievances 	are 	often 	filed 	directly 	at 	the 	third 	step,
especially prior 	to 	the 	commencement 	of 	negotiations 	for 	a
successor 	agreement. 	He 	explained 	that 	by 	filing 	grievances 	at
63

step 	three, 	the 	opportunity 	to 	investigate 	and 	resolve 	problems
informally 	is 	lost 	and 	the 	level 	of 	acrimony and 	confrontation 	is
increased.
Strikes 	by 	student 	academic 	employees 	also 	place 	a
tremendous 	strain 	on 	student/faculty 	relationships. 	A five 	week
recognition 	strike 	by UC 	Berkeley graduate 	students 	resulted 	in
resentment 	and 	strained 	relationships 	by 	both 	faculty 	and
students. 	Faculty were 	angry 	at 	having 	to 	take 	sides 	in 	the
strike 	and 	take 	on 	additional 	courses 	taught 	by 	striking 	graduate
student 	instructors. 	The 	students 	also 	felt 	a 	lot 	of 	bitterness
towards 	faculty 	when 	they 	did 	not 	receive 	the 	support 	they
expected 	from 	the 	faculty.
Dean Duggan 	recounted 	his 	own 	experience 	as 	a 	dissertation
advisor 	to 	a 	graduate 	student 	who 	served 	as 	a 	union 	spokesperson
during 	the 	UC 	Berkeley 	strike. 	He 	described 	the 	tension which
carried 	over 	into 	their mentor 	relationship:
When 	you're 	giving 	advice 	on 	a 	dissertation,
there 	has 	to 	be 	a 	cooperative 	relationship
between 	the 	faculty 	member 	and 	the 	student.
I 	mean, 	you 	can't 	teach 	somebody who 	is
hostile 	to 	you. 	So, 	we 	had a 	lot 	of 	reasons
for 	hostility 	that 	were 	outside 	the
dissertation, 	itself, 	but 	that 	kind 	of 	thing
carries 	over 	into 	the 	academic 	relationship.
Graduate 	students 	at 	the 	University 	of 	Michigan 	engaged 	in a
one 	day 	strike 	in 	1991 	and 	strikes 	are 	typically 	authorized 	each
year 	that 	successor 	agreement 	negotiations 	occur. 	Paul 	Lehman,
Associate 	Dean 	at 	the 	University 	of 	Michigan, 	testified 	that 	the
strike 	and 	threat 	of 	strikes 	generate 	stress 	between 	faculty 	and
students. 	He 	explained 	that 	the 	university and 	the 	faculty 	must
64

prepare 	contingency plans 	for 	strike 	possibilities 	which, 	even 	in
the 	absence 	of 	a 	strike, 	results 	in 	a 	significant 	source 	of
tension 	throughout 	the 	university 	community.
Strikes 	are 	intended 	to 	disrupt 	the 	educational 	process 	for
the 	purpose 	of 	imposing 	pressure 	on 	the 	university. 	A serious
consequence 	of 	strikes 	is 	the 	disruption 	of 	educational 	services
provided 	to 	other 	students 	and 	the 	burden 	placed 	on 	faculty 	to
continue 	the 	delivery 	of 	these 	educational 	services. 	While
lessening 	the 	frequency 	of 	strikes 	is 	a 	positive 	feature 	of
collective 	bargaining, 	does 	not 	obviate 	the 	impact 	on 	the
student/faculty 	relationship 	when 	students 	engage 	or 	threaten 	to
engage 	in 	concerted 	activities 	an 	effort 	to 	compel 	the
University 	to 	meet 	their 	demands.
The 	interaction between 	student 	employees 	and 	faculty 	in 	an
"educational 	venturen 	enhances 	the 	students' 	academic 	and
professional 	careers, 	and 	promotes 	the 	academic 	mission 	of 	the
University. 	The 	poss 	lity 	that 	the 	"complex and 	fragile"
nature 	of 	these 	unique 	relationships 	could be 	damaged 	by
collective 	bargaining 	does 	not 	further 	the 	policies 	of 	excellence
in 	the 	University.
Part-time/Intermittent 	Employees
In UC 	(AGSE), 	the 	Board 	found 	that 	the 	continuous 	movement
of 	graduate 	students 	in 	and 	out 	of 	academic 	employment 	posit
would 	result 	li 	ch does 	not 	make 	collect
bargaining 	a 	feasible 	alternat 	The 	Board also 	noted 	that
graduate 	students 	would 	be 	split 	into 	competing 	groups, 	those
65

working 	for 	pay 	and 	those 	working 	for 	academic 	credit. 	The 	court
in AGSE 	recognized 	that 	collective 	bargaining 	could 	create
arbitrary 	distinctions 	between 	these 	two 	groups.
Union 	witnesses 	testified 	that 	there 	is 	no 	difference 	in 	the
representation 	of 	part-time 	and 	full-time 	employees. 	Mr. 	Hecker
testified, 	for 	example, 	that 	part-time 	employees 	working 	as
grocery 	or 	retail 	clerks 	are 	represented 	in 	the 	same 	manner 	as
full-time 	clerks.
The 	vast 	majority 	of 	students 	in 	the 	proposed 	unit 	at 	UCSD
are 	undergraduates. 	Unlike 	graduate 	students 	who 	rely more
frequently 	on 	student 	academic 	appointments 	to 	fund 	their
graduate 	education, 	the 	tenure 	of 	undergraduate 	readers 	and
tutors 	is 	brief. 	With 	rare 	exception, 	student 	readers 	and 	tutors
do 	not 	continuously 	hold positions 	as 	readers 	and 	tutors. 	In
contrast, 	part-time 	grocery 	clerks 	have 	a 	continuing 	expectation
of 	employment 	on 	a 	less 	than 	full-time 	basis.
The 	evidence 	demonstrates 	a 	high 	rate 	of 	turnover 	in 	student
academic 	employee 	bargaining 	units 	and 	correspondingly 	in 	union
leadership 	roles. 	Union witness 	Mary Ann Massenburg, 	UAW 	staff
representative, 	testified 	about 	the 	need 	for 	constant 	leadership
development 	by 	the 	union 	among 	student 	academic 	employees. 	The
high 	turnover 	rate 	and 	lack 	of 	continuity has 	an 	impact 	on 	labor
relations 	at 	the 	bargaining 	table 	as 	well. 	Dr. 	Craig 	described
the 	frustration 	which 	occurs 	at 	the 	bargaining 	table 	when 	new
student 	bargaining 	team members 	have 	no 	understanding 	of 	the
history 	that 	went 	into 	crafting 	the 	previous 	agreement. 	The
66

parties 	end up 	debating 	the 	same 	issues 	that 	were 	previously
resolved.
Frequent 	turnover 	in 	the 	bargaining unit 	also 	leads 	to
instability 	through 	contracts 	of 	shorter 	duration. 	At 	the
University 	of 	Michigan, 	the 	union 	prefers 	to 	negotiate 	agreements
of 	shorter 	duration 	because 	of 	the 	continual 	turnover 	in 	the
bargaining 	unit, 	allowing 	them 	to 	more 	frequently 	demonstrate
their value 	to 	new unit 	members. 	Shorter agreements 	result 	in
constant 	preparation 	for 	the 	next 	round 	of 	bargaining 	and 	the 	use
of 	disruptive 	pressure 	tactics 	which 	are 	designed 	to 	provide
leverage 	at 	the 	bargaining 	table. 	Several 	witnesses 	testified
about 	the 	increased 	level 	of 	grievance 	filing 	which 	occurs 	prior
to 	negotiations 	for 	successor agreements.
The 	Board 	also 	found 	in UC 	(AGSE) 	that 	splitting 	graduate
students 	into 	two 	groups 	would 	not 	promote 	harmonious 	and
cooperative 	labor 	relations. 	Students 	performing 	identical
duties 	as 	tutors 	would be 	in 	or 	out 	of 	the 	bargaining unit
depending 	on whether 	they 	were 	paid 	or 	receiving 	academic 	credit.
The 	provisions 	of 	a 	collective 	bargaining 	agreement 	would 	apply
only 	to 	paid 	tutors, 	thus 	creating 	an 	arbitrary 	distinction
between 	the 	two 	classes 	of 	tutors.
The 	University 	of 	Michigan's 	attempts 	to 	avoid 	arbitrary
distinctions 	between TAs 	covered by 	collective 	bargaining 	and
research 	assistants 	(RAs) 	who 	are 	not 	in 	the 	bargaining 	unit,
adversely 	affected 	its 	ability 	to 	obtain 	government 	research
contracts. 	The 	university was 	concerned about 	creating 	two
67

groups 	of 	graduate 	students 	supported 	at 	different 	levels 	when
there 	was 	no 	meaningful 	distinction between TAs 	and RAs.
Consequently, 	when 	TAs 	were 	successful 	in 	obtaining 	an 	increase
in 	their 	stipends, 	the 	university 	increased RA 	stipends 	by 	the
same 	percentage. 	The 	effort 	to 	eliminate 	the 	arbitrary
distinction 	led 	to 	relatively 	high RA 	stipends, 	which 	had 	the
effect 	of 	pricing 	the 	university 	out 	of 	the 	market 	for 	government
research 	contracts 	and 	limited 	the 	students' 	opportunity 	to
participate 	in 	government 	research 	projects.
As 	the 	Board has 	previously 	determined 	in UC 	(AGSE), 	the
instability which 	derives 	from 	the 	students' 	continuous 	movement
in 	and 	out 	of 	the 	bargaining unit 	and 	the 	lack 	of 	continuity 	at
the 	bargaining 	table 	would 	not 	further 	the 	purposes 	of 	HEERA by
promoting 	harmonious 	and 	cooperative 	labor 	relations.
Free 	Exchange 	of 	Ideas
The 	purposes 	of 	HEERA encourage 	the 	free 	exchange 	of 	ideas
among 	faculty, 	students 	and 	staff. 	The 	Legislature 	also
encouraged 	the 	preservation 	of 	the 	long-accepted manner 	of 	higher
education 	institutions 	to 	consult 	with 	academic 	employees 	through
the 	Academic 	Senate 	and 	other 	faculty 	councils.
As 	the 	ALJ 	noted, 	collective 	bargaining 	does 	provide 	for 	the
exchange 	of 	ideas 	through 	the 	bargaining process. 	However, 	it
may 	run 	counter 	to 	the 	express 	purposes 	of 	HEERA by discouraging
the 	long-accepted manner 	of 	"joint 	decisionmaking 	and
consultation" 	with 	academic 	employees 	through 	"shared governance
mechanisms 	or 	practices.n
68

For 	example, 	at 	UC 	Berkeley 	students 	participate 	on numerous
faculty 	committees, 	including 	the 	Graduate 	Council. 	The 	Graduate
Council 	sets 	policy 	for 	graduate 	studies 	and 	discusses 	matters
which may 	concern 	student 	academic 	employees. 	At 	one 	bargaining
session between AGSE 	and 	the 	University, 	the 	union 	objected 	to 	a
proposal 	which 	would 	ensure 	the 	continued 	practice 	of 	faculty-
student 	committees 	discussing matters 	which may 	concern 	student
academic 	employees. 	The 	University 	feared 	that 	it 	would 	have 	to
remove 	represented 	student 	employees 	from 	faculty-student
committees 	in 	order 	to 	avoid 	a 	charge 	of 	direct 	dealing, 	thus
losing 	the 	benefit 	of 	student 	employee 	input. 	The 	union 	claimed
that 	it 	had 	the 	exclusive 	right 	to 	meet 	and 	discuss 	student
employment 	matters 	and 	insisted 	rather 	than 	removing 	student 	unit
members 	from 	these 	committees, 	that 	the 	committees 	be 	barred 	from
discussing matters 	which 	were 	within 	the 	purview 	of 	the 	exclusive
representative.
The 	ALJ 	dismissed 	any 	concern 	over 	the 	impact 	of 	removing
student 	employees 	from 	faculty-student 	committees, 	concluding
that 	the 	nature 	of 	collective 	bargaining 	requires 	that 	only 	the
exclusive 	representative 	is 	permitted 	to 	meet 	and 	discuss
negotiable 	matters 	concerning 	student 	academic 	employees.
However, 	this 	view 	ignores 	the 	express 	purposes 	of 	HEERA which
encourages 	the 	preservation 	of 	existing 	decision making 	and
consultation mechanisms 	with academic 	employees.
A formal 	grievance 	process 	could 	also 	limit 	the 	free
exchange 	of 	ideas. 	An 	informal, 	collaborative 	approach 	to
69

problem 	solving 	encourages 	the 	joint 	resolution 	of 	problems. 	A
formal 	grievance 	procedure 	has 	an 	informal 	step 	and many
grievances 	are 	resolved 	at 	this 	level. 	However, 	grievances 	filed
directly 	at 	higher 	levels 	preclude 	informal 	communication 	and
resolution. 	Dr. 	Upham 	testified 	that 	the 	process 	is 	cumbersome
and 	bureaucratic 	and 	without 	the 	constraints 	of 	a 	formalized,
multi-step 	resolution 	process 	there 	would be more 	direct
interaction between 	faculty 	and 	students 	in 	the 	resolution 	of
their 	problems. 	For 	example, 	union 	representation precluded 	the
dean 	at 	the 	University 	of 	Michigan 	from 	contacting 	the 	student
who 	filed 	a 	grievance 	against 	her major professor, 	in 	an 	attempt
to 	heal 	the 	relationship 	and 	allow 	the 	student 	to 	complete 	her
studies.
As 	the 	evidence 	demonstrates, 	the 	pursuit 	of 	excellence
through 	the 	free 	exchange 	of 	ideas 	would 	be 	adversely 	affected by
limiting 	joint 	decision making 	and 	consultation between 	the
University and 	its 	academic 	employees.
Based upon 	the 	above 	discussion, 	it 	is 	evident 	that 	under
the 	second prong 	of 	the 	statutory 	test, 	the 	purposes 	of 	HEERA
would 	not 	be 	furthered 	by 	extending 	collective 	bargaining 	rights
to 	readers, 	tutors 	and 	associates. 	Student 	academic 	employees
experience 	a 	unique 	dual 	relationship 	with 	the 	University where
their 	pursuit 	of 	learning 	as 	students 	is 	inextricably 	interwoven
with 	their provision 	of 	academic 	services 	in 	subjects 	related 	to
their 	fields 	of 	study. 	While 	collective 	bargaining 	would most
likely 	result 	in 	a 	11 set 	of 	rules" 	designed 	to 	guide 	employment
70

matters, 	it 	is 	apparent 	that 	the 	line 	distinguishing 	academic
from 	employment 	matters 	is 	not 	a 	clear 	one. 	If 	not 	immediate,
certainly a 	gradual 	encroachment 	into 	academic 	matters 	would
result 	from 	a 	bargaining 	process 	which 	requires 	compromise. 	The
likelihood 	that 	academic 	policies 	would be 	established 	or
modified 	through 	collective 	bargaining 	is 	inevitable 	and 	would
compromise 	the 	pursuit 	of 	excellence 	in 	teaching, 	research 	and
learning 	at 	one 	of 	the 	leading 	educational 	institutions 	in 	the
country 	and 	it 	would 	also 	undermine 	the 	faculty's 	academic 	policy
making 	role. 	The 	court 	in AGSE 	recognized 	this 	concern when 	it
concluded:
This 	well-tuned 	system 	could 	easily be
disrupted 	by 	introduction 	of 	collective
bargaining 	on 	the 	behalf 	of 	thousands 	of
graduate 	students 	whose 	self-interest 	might
outweigh 	concern 	for 	the 	institution.
(AGSE 	at 	p. 	1148.)
The 	promotion 	of 	collective 	bargaining 	would 	also 	alter
student/faculty mentor 	relationships 	by 	changing 	the 	focus 	to 	one
of 	employee/supervisor where 	disputes 	over 	employment 	issues
could harm mentor 	relationships 	and 	impact 	academic 	integrity.
Furthermore, 	the 	continuous 	movement 	of 	students 	in 	and 	out 	of
the 	bargaining 	unit 	would 	create 	instability and 	the 	lack 	of
continuity 	at 	the 	bargaining 	table 	would 	not 	encourage 	harmonious
and 	cooperative 	labor 	relations. 	Finally, 	the 	pursuit 	of
excellence 	through 	the 	free 	exchange 	of 	ideas 	and 	the
preservation 	of 	joint 	decision making 	and 	consultation between
the 	University 	and 	its 	academic 	employees 	through 	shared
governance mechanisms, 	would 	be 	adversely 	affected by 	limiting
71

the 	means 	of 	discourse 	solely 	to 	the 	union 	and 	creating 	formal,
bureaucratic 	processes.
In 	conclusion, 	under 	the 	two-prong 	test, 	I 	find 	that 	the
educational 	objectives 	of 	tutors 	and 	associates 	are 	not
subordinate 	to 	the 	services 	they 	provide 	to 	the 	University.
While 	the 	readers' 	educational 	objectives 	are 	subordinate 	to
their 	services, 	under 	the 	second prong 	of 	the 	statutory 	test, 	I
find 	that 	the 	purposes 	of 	HEERA would 	not 	be 	furthered 	by
extending 	collective 	bargaining 	rights 	to 	readers, 	tutors 	and
associates. 	Accordingly, 	I 	conclude 	that 	students 	appointed 	to
reader, 	tutor 	and 	associate 	positions 	at 	the 	University 	of
California, 	San Diego 	campus 	are 	not 	employees 	for 	purposes 	of
HEERA and, 	therefore, 	the 	petition 	should be 	dismissed.
72

PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NOTICE 	OF 	DECISION AND
NOTICE 	OF 	INTENT 	TO 	CONDUCT 	ELECTION
April 	23, 	1998
R
CASE: 	PERB 	Decision No. 	1261-H
(Case 	No. 	SF-RR-805-H)
EMPLOYER: 	Regents 	of 	the 	University 	of 	California
DESCRIPTION OF 	UNIT:
The 	unit 	shall 	Include All:
Readers
Tutors1
Associates 	In 	(Teaching a 	Class)
The 	unit 	shall 	Exclude 	All:
Managerial, 	Supervisorial 	and 	Confidential
employees, 	and All 	Other 	Employees.
ELECTION: 	A representation 	election will 	be 	conducted 	in 	the
unit 	described 	above 	provided 	one 	or more 	employee
organizations 	qualifies 	to 	appear 	on 	the 	ballot.
However, 	pursuant 	to 	PERB 	Regulation 	51330, 	if
only 	one 	organization 	qualifies 	to 	appear 	on 	the
ballot 	and 	the 	organization has 	demonstrated 	proof
of 	majority 	support 	in 	the 	unit 	found 	appropriate,
the 	Regents 	of 	the 	University 	of 	California may
grant 	voluntary 	recognition 	and 	notify 	the 	Board
to 	cancel 	the 	election.
INTERVENTION TO APPEAR ON 	BALLOT:
Pursuant 	to 	PERB Regulation 	51310, 	any 	employee
organization wishing 	to 	appear 	on 	the 	ballot 	in
the 	representation 	election 	conducted 	in 	the 	unit
listed 	on 	this 	Notice must 	file 	an 	intervention 	to
appear 	on 	the 	ballot with 	the 	PERB 	San
Regional 	Office within 	15 	workdays 	from 	the 	date
1At 	the 	hearing, 	the 	University 	indicated 	that 	it 	may 	be
revising 	the 	tutor 	title 	and 	title 	codes. 	This 	order 	includes
all 	of 	the 	tutors 	that 	were 	the 	subject 	of 	this 	hearing,
performing 	both 	tutoring 	duties 	and 	undergraduate 	teaching
assistant 	duties 	by whatever 	title 	and 	in whatever 	title 	code
that may 	result 	from 	such 	revision.

of 	this 	Notice. 	The 	intervention must 	be 	on 	a
form 	provided 	by 	PERB 	and must 	be 	accompanied 	by
proof 	of 	support 	of 	at 	least 	10 	percent 	of 	the
employees 	in 	the 	unit. 	Proof 	of 	support 	is
defined 	in 	PERB 	Regulation 	32700.
The 	last 	day 	to 	file 	an 	intervention to 	appear 	on
the 	ballot 	in 	the 	unit 	described 	above 	is:
May 	14, 	1998.
This 	Notice 	of 	Decision 	is 	provided 	pursuant 	to 	PERB
Regulation 	51235.
2

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
R
REGENTS 	OF 	THE 	UNIVERSITY 	OF
CALIFORNIA,
Employer,
and
ASSOCIATION OF 	STUDENT EMPLOYEES,
U.A.W., 	UNITED AUTOMOBILE,
AEROSPACE 	AND AGRICULTURAL
IMPLEMENT WORKERS 	OF AMERICA,
AFL-CIO,
Petitioner.
Representation
Case 	No. 	SF-R-805-H
(UC 	San 	Diego)
PROPOSED DECISION
(10/20/95)
Appearances: 	Corbett 	& 	Kane 	by Sharon 	J. 	Grodin, 	Douglas 	N.
Freifield 	and Aron 	Cramer, 	and 	the 	Office 	of 	the 	General 	Counsel
by 	James 	N. 	Odell 	and 	Edward M. 	Opton, 	Jr., 	Attorneys, 	for 	the
Regents 	of 	the 	University of 	California; 	Schwartz, 	Steinsapir,
Dohrmann 	& 	Sommers 	by Margo 	A. 	Feinberg 	and 	Brenda 	Sutton,
Attorneys, 	for 	the 	Association 	of 	Student 	Employees, 	U.A.W.,
United Automobile, 	Aerospace 	and Agricultural 	Implement 	Workers
of 	America, 	AFL-CIO.
Before 	James 	W. 	Tamm, 	Administrative 	Law 	Judge.

1

TABLE 	OF 	CONTENTS
PAGE
INTRODUCTION 	1	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PROCEDURAL 	HISTORY 	1	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
JURISDICTION 	4	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ISSUES 	4	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
FINDINGS 	OF 	FACT 	5	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Background 	Regarding 	UC 	5	SD.............................
Job 	Functions, 	Educational 	Objectives 	and
Motives 	for 	Seeking Employment 	7	. . . . . . . . . . . . . . . .. . . .. . . .
Readers 	7	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tutors 	24	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Associates 	42	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indicia 	of 	Student 	and Employee 	Status 	50	. . . . . . . . . . . . . . . .
Mentor 	Issues 	50
Part-time 	and 	Intermittent 	Employee 	Issues 	53	. . . . . . . . . . . .
Grievance 	Issues 	54
Information 	Flow 	68
Other University Academic 	Units 	69	. . . . .. .................
Credibility 	Findings 	73	. . . .. . . . . . . . . . . . . .. . . . . . . . . . . . . . . .
DISCUSSION 	78	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indicia 	of 	Student 	Versus 	Employee 	Status 	78	. . . . . . . . . . . . .
UC 	Berkeley 	Precedent 	79	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Analysis 	of 	Subsection 	(f) 	80
rst 	Test-Employment 	of 	Readers 	and 	Tutors 	is 	not
Contingent 	Upon 	Student 	Status 	81	. . . . . . . . . . . . . . . . . . . . . . . .
l

Second 	Test-Services 	Provided 	by Readers 	are 	Unrelated
to 	their 	Educational 	Objectives 	84	. . . . . . . . . . . . . . . . . . . . . . .
Third 	Test-Educational 	Objectives 	are 	Subordinate 	to
Services 	and 	Coverage 	Under 	the 	Act 	Would 	Further
the 	Purposes 	of 	the 	Act 	88	. . . . . . . . . . . . . . ... . . . . . . . . . . . . . .
Prong 	One-Educational 	Objectives 	are
Subordinate 	to 	Services 	96	. . . . . . . . . . . . . . . . . . . . . . . . . .
Readers 	- 	Prong One 	97	. . . . . . . . . . . . . . . . . . . . . . . . .
Tutors 	- 	Prong One 	101
Associates 	- 	Prong One 	104	......................
Prong 	Two 	- 	Coverage 	will 	Further 	the
Purposes 	of 	the 	Act 	106	...............................
Free 	Flow of 	Information 	109	....................
Mentor 	Issues 	110	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Work 	Stoppages 	117	..............................
Academic 	Versus 	Economic 	Issues 	120
Potential 	Damage 	to 	Stature 	of
the 	University 	122	. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part-Time/Intermittent 	Employee 	Issues 	123	......
Limited Resources 	of 	the 	University .......... 	125
Erosion 	of 	the 	Status 	Quo 	126	...................
CONCLUSION: 	APPROPRIATENESS 	OF 	REQUESTED UNIT 	127	.............
PROPOSED ORDER 	128
APPEAL 	PROCESS 	128
ii

INTRODUCTION
This 	decision 	concerns 	a 	dispute 	regarding 	coverage 	of
student 	employees 	in 	the 	reader, 	tutor 	and 	associate 	positions 	at
the 	University 	of 	California, 	San 	Diego 	campus 	(UCSD), 	under 	the
Higher 	Education 	Employer-Employee 	Relations 	Act 	(HEERA or Act) . 1
I 	first 	make 	factual 	findings 	about 	reader, 	tutor 	and
associate 	duties, 	and 	the 	impact 	of 	collective 	bargaining. 	I
then 	apply 	three 	tests 	of 	section 	3562(f) 	(subsection 	f) 	which
are 	applicable 	to 	this 	dispute. 2 	Under 	the 	first 	test 	I 	conclude
that 	readers 	and 	tutors 	are 	employees 	because 	their 	employment 	is
not 	contingent 	upon 	their 	status 	as 	students. 	Under 	the 	second
test 	I 	also 	find 	that 	readers 	are 	employees 	under 	the 	Act 	because
the 	services 	they perform 	are 	unrelated 	to 	their 	educational
objectives. 	Finally, 	under 	the 	two 	prongs 	of 	the 	third 	test, 	I
conclude 	that 	the 	educational 	objectives 	of 	readers, 	tutors 	and
associates 	are 	subordinate 	to 	the 	services 	they perform 	{Prong
One), 	and 	extending 	coverage 	of 	the 	Act 	to 	readers, 	tutors 	and
associates 	would 	further 	the 	purposes 	of 	the 	Act 	(Prong 	Two).
PROCEDURAL HISTORY
On May 	28, 	1993, 	the 	Association 	of 	Student 	Employees,
U.A.W., 	United Automobile, 	Aerospace 	and Agricultural 	Implement
Workers 	of 	America, 	AFL-CIO 	(Petitioner) 	filed 	this 	request
for 	recognition 	seeking 	a 	unit 	of 	readers, 	tutors, 	acting
1HEERA 	is 	codified 	at 	Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	noted, 	all 	statutory 	references 	are 	to 	the
Government 	Code.
2 In 	previous 	decisions 	PERB 	and 	the 	courts 	have 	only
concerned 	themselves 	with 	the 	two 	prongs 	of 	the 	third 	test.

instructors, 	community 	teaching 	fellows 	and 	nursery 	school
attendants 	employed 	at 	UCSD.
On 	October 	15, 	1993, 	the 	Regional 	Director 	of 	the
Public 	Employment 	Relations 	Board 	(PERB 	or 	Board) 	determined 	that
the 	Petitioner 	had 	submitted proof 	of 	support 	sufficient 	to 	meet
the 	requirements 	of 	HEERA.
On November 	8, 	1993, 	the 	Regents 	of 	the 	University of
California 	(UC 	or University) 	filed 	its 	response 	to 	the
Petitioner's 	request 	for 	recognition, 	asserting 	it 	was
inappropriate 	because 	it 	included 	student 	employees 	who 	are 	not
employees 	as 	defined 	in 	HEERA. 	The 	University 	also 	responded
that 	to 	the 	extent 	the 	petition 	included non-student 	employees,
those 	employees 	should be 	placed 	in 	a 	separate 	systemwide 	unit 	or
accreted 	to 	the 	existing 	systemwide 	Non-Senate 	Academic 	Unit3
(Unit 	18).
On 	December 	9, 	1993, 	Petitioner 	filed 	a 	request 	for 	a 	Board
investigation pursuant 	to 	PERB 	Regulation 	51090. 4 	Settlement
conferences/investigatory meetings 	were 	held 	on 	February 	7,
3The 	University 	offered no 	evidence 	or 	argument 	at 	the
hearing 	regarding 	the 	appropriateness 	of 	non-student 	employees
being 	accreted 	into 	Unit 	18. 	Nor 	did 	the 	University 	address 	the
issue 	in 	its 	post-hearing 	brief. 	In 	its 	post 	hearing 	reply
brief, 	the 	University 	did 	state 	in 	footnote 	46 	that 	once 	the
issue 	of 	employee 	status 	is 	determined 	there 	may be 	issues
remaining 	concerning 	the 	appropriateness 	of 	the 	unit.
However, 	the 	University 	had 	a 	full 	opportunity 	to 	raise 	unit
appropriateness 	issues 	in 	the 	hearing 	and 	failed 	to 	do 	so. 	The
University 	has 	therefore 	waived 	any 	arguments 	that 	the 	unit
sought 	by 	Petitioner 	is 	inappropriate 	for 	reasons 	other 	than
employee 	status 	under 	subsection 	(f).
4 PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	Title 	8, 	section 	31001, 	et 	seq.
2

May 	19 	and 	June 	17, 	1994, 	however, 	the 	matter was 	not 	resolved.
On March 	9, 	1994, 	the 	case 	was 	assigned 	to 	me 	for 	formal 	hearing.
The 	Regional 	Director 	retained 	responsibility over 	several 	pre-
hearing 	issues. 	A hearing 	was 	scheduled 	fo~ 	October 	through
November 	of 	1994.
On 	June 	27, 	1994, 	the 	Petitioner 	amended 	the 	request 	for
recognition, 	adding 	the 	title 	Associate 	In 	_____ 	(Teaching 	a
Class) 	(associate) 	and 	deleting 	nursery 	school 	attendants,
community 	teaching 	fellows, 	and 	acting 	instructors, 	titles 	which
were 	not 	in 	use 	at 	UCSD. 	On 	June 	29, 	1994, 	the 	PERB 	Regional
Director 	determined 	that 	the 	amended 	request 	for 	recognition 	had
sufficient 	proof 	of 	support. 	Therefore, 	the 	positions 	at 	issue
in 	this 	decision 	are 	readers 	(title 	codes 	2850, 	2851 	and 	2500),
tutors 	(title 	codes 	2860, 	2861 	and 	2510) 	and 	associates 	(title
code 	1506). 	The 	approximate 	size 	of 	the 	proposed 	unit 	is 	450.
At 	a 	prehearing 	conference 	on 	July 	9, 	1994, 	Petitioner's
motion 	that 	the 	hearing 	be 	continued 	until 	February 	and March 	of
1995 	was 	granted.
On 	July 	27, 	1994, 	the 	University 	filed 	its 	response 	to 	the
amended 	request 	for 	recognition 	and 	again 	denied 	it 	for 	the 	same
reasons 	it 	denied 	the 	original 	petition.
On 	September 	19, 	1994, 	the 	Petitioner 	filed 	a 	motion 	to
consolidate 	the 	hearing 	in 	this 	case 	with 	hearings 	for 	related,
but 	not 	identical, 	requests 	for 	recognition 	at 	the 	University's
campuses 	at 	Los 	Angeles 	(UCLA), 	Davis 	(UCD), 	and 	Santa 	Barbara
3

(UCSB) . 5 	At 	a 	prehearing 	conference 	on October 	4, 	1994, 	the
parties 	made 	oral 	arguments 	regarding 	the 	Petitioner's 	motion 	to
consolidate. 	The 	parties 	briefed 	the 	issue 	and 	on 	October 	28,
1994, 	I 	granted 	the 	motion 	in 	part. 	The 	order 	consolidated 	the
records 	of 	the 	four 	requests 	for 	recognition, 	thus 	assuring 	that
much 	of 	the 	University's 	case-in-chief 	offered 	at 	UCSD 	need 	not
be 	duplicated 	in 	the 	other 	cases. 	Petitioner's 	request 	for 	a
single 	formal 	hearing 	for 	all 	four 	cases 	was 	denied.
Thirty-two 	days 	of 	formal 	hearing 	were 	held 	between 	February
6 	and 	June 	9, 	1995. 	Briefs 	were 	filed 	and 	the 	case 	was 	submitted
for 	decision 	on August 	19, 	1995.
JURISDICTION
The 	University 	is 	an 	employer within 	the 	meaning 	of 	section
3562(h) 	of 	the 	Act. 	The 	Petitioner 	is 	an 	employee 	organization
within 	the 	meaning 	of 	section 	3562(g) 	of 	the 	Act.
ISSUES
HEERA 	subsection 	(f) 	provides:
"Employee" 	or 	"higher 	education 	employee 11
means 	any 	employee 	of 	the 	Regents 	of 	the
University 	of 	California, 	However,
managerial, 	and 	confidential 	employees 	shall
be 	excluded 	from 	coverage 	under 	this 	chapter.
The 	board may 	find 	student 	employees 	whose
employment 	is 	contingent 	on 	their 	status 	as
students 	are 	employees 	only 	if 	the 	services
they provide 	are 	unrelated 	to 	their
5The 	motion 	did 	not 	seek 	consolidation 	of 	the 	petitions
themselves. 	At 	the 	time 	the 	motion was 	filed, 	the 	only petition
set 	for 	formal 	hearing was 	UCSD 	(Case 	No. 	SF-R-805-H.) 	The 	UCLA
petition 	(Case 	No. 	SF-R-813-H) 	is 	currently 	scheduled 	for 	a
hearing 	beginning 	October 	18, 	1995. 	The 	UCD 	petition
(SF-R-806-H) 	is 	tentatively 	set 	for 	hearing 	beginning 	in April,
1996. 	The 	UCSB 	hearing 	(SF-R-815-H) 	is 	not 	yet 	scheduled.
4

educational 	objectives, 	or, 	that 	those
educational 	objectives 	are 	subordinate 	to 	the
services 	they perform 	and 	that 	coverage 	under
this 	chapter would 	further 	the 	purposes 	of
this 	chapter.
Thus, 	the 	issues 	to 	be 	decided 	in 	this 	dispute 	are:
(1) 	Under 	the 	first 	test, 	is 	employment 	in 	the 	disputed
titles 	contingent 	upon 	student 	status?
(2) 	Under 	the 	second 	test, 	are 	the 	services 	provided by 	the
student 	employees 	in 	question 	unrelated 	to 	the 	educational
objectives 	of 	the 	student 	employees?
(3) 	Under 	the 	third, 	two 	prong 	test, 	are 	those 	educational
objectives 	subordinate 	to 	the 	services 	provided 	(Prong 	One), 	and
does 	coverage 	of 	the 	student 	employees 	under HEERA 	further 	the_
purposes 	of 	the 	Act 	(Prong 	Two)?
FINDINGS 	OF 	FACT
Background Regarding UCSD
The 	University 	is 	a 	public, 	state 	supported, 	higher
education 	institution 	offering undergraduate 	and 	graduate
instruction 	and professional 	education. 	The 	University 	is
required 	to 	provide 	undergraduate 	education 	to 	the 	top 	one-eighth
of 	California's 	high 	school 	graduates. 	It 	has 	exclusive
jurisdiction 	in 	California 	public 	higher 	education 	over
instruction 	in 	the 	professions 	of 	law, 	medicine, 	dentistry 	and
veterinary medicine. 	The 	University 	also 	has 	sole 	authority 	to
award 	doctoral 	degrees 	all 	fields, 	either 	alone 	or 	jointly
with 	the 	California 	State 	University 	system.
5

The 	University 	has 	nine 	campuses. 	This 	decision 	concerns
the 	University's 	San Diego 	campus. 	UCSD was 	established 	as 	a
campus 	in 	1960 	with 	the 	intention 	of 	being 	primarily 	for 	graduate
instruction. 	In 	the 	early 1970's 	however, 	a 	huge 	influx 	of
undergraduate 	students 	required UCSD 	to 	operate 	differently.
UCSD 	established a 	college 	system 	for 	undergr~duate 	students.
There 	are 	currently 	five 	undergraduate 	colleges: 	Earl 	Warren
College, 	Thurgood Marshall 	College, 	Revelle 	College, 	Muir 	College
and 	Eleanor 	Roosevelt 	College.
Each of 	the 	colleges 	has 	its 	own 	general 	education
requirements. 	Each 	undergraduate 	also 	has 	an 	academic 	major,
typically within 	a 	department, 	but 	sometimes 	within 	an
interdepartmental 	program. 	Departments 	are 	housed 	within 	the
various 	colleges. 	It 	is 	possible 	to 	major 	in 	any department 	from
any 	college. 	Students 	must 	meet 	both 	college 	and 	departmental 	or
program 	requirements 	in 	order 	to 	graduate. 	This 	combination 	of
college 	and 	departmental 	or program 	requirements 	defines 	the
curriculum 	for 	each undergraduate 	student.
Each 	faculty 	member 	is 	a 	member 	of 	one 	undergraduate 	college
and 	one 	department. 	Graduate 	students 	are 	members 	of 	a
department 	or 	a 	program, 	but 	not 	of 	an 	undergraduate 	college.
The 	facts 	regarding 	the 	disputed 	positions 	vary 	depending
upon 	the 	skill 	and 	experience 	of 	the 	student 	employees, 	the
program or 	department 	which 	the 	student 	employee 	works 	and 	the
approach 	of 	the 	supervising 	faculty 	member. 	Nonetheless, 	clear
factual 	patterns 	have 	emerged which 	are 	summarized below.
6

Job 	Functions, 	Educational 	Objectives 	and 	Motives 	for 	Seeking
Employment
Readers
Readers 	assist 	in 	the 	University's 	teaching 	mission 	by 	reading
and 	grading 	homework 	assignments, 	quizzes, 	mid-term 	and 	final
exams 	and papers. 	Readers 	may 	have 	some 	regular 	on-going
responsibilities 	throughout 	the 	quarter, 	but 	more 	commonly 	their
duties 	involve 	sporadic 	activities, 	usually 	concentrated 	in
intense 	periods 	around mid-term 	and 	final 	exams. 6
A hiring 	preference 	exists 	that 	gives 	graduate 	students 	the
first 	opportunity 	for 	open 	reader 	positions. 	If 	there 	are 	not
enough 	graduate 	students 	available 	or 	interested 	in 	the 	openings,
or 	if 	graduate 	student 	applicants 	do 	not 	possess 	the 	necessary
expertise 	or 	knowledge 	of 	course 	materials 	(such 	as 	foreign
language 	skills), 	then 	undergraduates 	are 	given 	the 	next
preference. 	If 	the 	University 	is 	not 	able 	to 	fill 	the 	open
positions 	with 	either 	graduate 	or 	undergraduate 	students, 	then
non-students 	may 	be 	hired 	to 	fill 	the 	vacancies.
Vice 	Chancellor 	Joseph Watson 	testified 	regarding 	both
readers 	and 	tutors:
6 In 	a 	small 	number 	of 	departments, 	the 	use 	of 	readers 	is
somewhat 	different 	than 	the 	norm. 	For 	example, 	Computer 	Science
and 	Engineering 	(CSE) 	hires 	about 	20 	readers 	per 	quarter 	to 	staff
computer 	labs. 	They 	are 	referred 	to 	as 	proctors, 	and 	their
duties 	and 	training more 	closely 	resemble 	those 	of 	undergraduate
teaching 	assistants 	than 	typical 	readers. 	Readers 	with 	the
Teacher 	Education 	Program 	(TEP) 	are 	also 	used more 	like
undergraduate 	teaching 	assistants 	than 	typical 	readers. 	They 	are
often 	interested 	in 	becoming 	teachers 	and 	are 	typically 	enrolled
in 	credentialing programs. 	Both proctors 	and 	TEP 	readers 	tend 	to
have 	more 	contact 	with 	faculty 	and 	students 	than 	the 	typical
reader.
7

in 	these 	positions 	priority has 	always
been 	given 	to 	enrolled 	students, 	but 	one 	has
to 	leave 	open 	the 	possibility 	that 	students
will 	not 	be 	available 	with 	the 	capabilities,
or 	will 	not 	be 	available 	at 	the 	needed 	time.
Vice 	Chancellor 	for 	Research 	and Dean 	of 	Graduate 	Studies 	Richard
Attiyeh 	testified:
We 	use 	non-students 	when 	there 	are 	teaching
opportunities 	in 	these 	titles 	. 	. 	that 	can
not.be 	met 	by 	hiring 	students.
Several 	other University witnesses 	testified 	about 	their
experience 	hiring 	non-students 	in 	order 	to 	maintain 	the 	quality
of 	the 	program.
The 	University's 	Administrative 	Policy Manual 	(APM) 	section
420.10 	provides 	that 	readers 	will 	usually 	be 	graduate 	or
undergraduate 	students. 	However, 	it 	also 	provides 	that 	non-
students 	may 	be 	employed 	to 	meet 	the 	needs 	of 	the 	University.
The 	reader 	positions 	at 	UCSD 	are 	filled 	primarily by
undergraduates. 	However, 	a 	substantial 	number 	of 	graduate
students 	accept 	reader 	positions 	to 	supplement 	their 	income 	when
a 	teaching 	assistant 	or 	research 	position 	is 	not 	available 	to
them. 	There 	is 	also 	a 	small 	number 	of 	non-student 	readers.
University 	statistics 	show 	that 	from 	the 	fall 	of 	1993 	through 	the
fall 	of 	1994 	there 	were 	approximately 	681 	undergraduate 	readers,
376 	graduate 	readers 	and 	21 	non-student 	readers.
Readers 	are 	recruited 	and 	hired 	by a 	number 	of 	methods.
Often 	a 	faculty 	member 	will 	announce 	to 	a 	class 	at 	the 	end 	of 	the
quarter 	thats/he 	has 	openings 	for 	reader 	positions 	and 	invites
those 	doing 	well 	in 	the 	course 	to 	apply. 	Sometimes 	faculty
8

members 	will 	recruit 	specific 	students. 	Departments 	sometimes
send 	out 	recruiting 	letters 	to 	all 	students 	with 	a 	3.0 	grade
point 	average 	(GPA) 	or 	better, 	or 	post 	job 	announcements 	and
invite 	applications. 	Much 	of 	the 	hiring 	process 	seems 	to 	revolve
around 	the 	personal 	style 	of 	the 	faculty 	member. 	Some 	faculty
take 	a 	strong 	role 	in 	selecting 	from 	among 	the 	applicants. 	Many,
however, 	simply 	leave 	it 	up 	to 	an 	administrator 	in 	the
departmental 	office 	to 	assign 	readers 	to 	them.
Readers 	and 	their 	supervising 	faculty 	members 	typically 	meet
prior 	to 	the 	start 	of 	the 	quarter 	and 	discuss 	expectations.and
assignments. 	Readers 	and 	faculty 	members 	will 	also 	typically
meet 	during 	the 	quarter 	to 	discuss 	major 	writing 	and 	grading
assignments 	such 	as 	mid-term and 	final 	exams. 	At 	those 	meetings
they 	sometimes 	engage 	in 	cursory 	discussions 	of 	the 	pedagogy 	of
grading. 	Readers 	testified 	about 	receiving 	feedback 	on 	their
grading practices 	such 	as 	"you're 	too 	tough," 	"try 	to 	end 	on 	a
positive 	note," 	"make 	more 	balanced 	comments," 	"make 	specific
suggestions 	for 	improvement 	rather 	than 	simply 	criticizing 	the
work." 	While 	this 	perfunctory grading 	feedback 	was 	more 	the
norm, 	there 	were 	other 	extremes. 	Many 	readers 	testified 	that
they 	received 	no 	pedagogical 	feedback 	at 	all 	and 	only 	saw 	the
faculty 	member 	to 	get 	their 	time 	sheets 	signed. 	A couple 	of
readers 	testified 	that 	they 	never 	even 	met 	the 	faculty 	member 	and
merely picked up 	and 	dropped 	off 	assignments 	via 	mailboxes. 	At
the 	other 	extreme 	were 	a 	few 	readers 	who 	actually 	helped 	faculty
members 	prepare 	exams 	and 	engaged 	in more 	complete 	discussions
9

about 	the 	faculty 	member's 	grading 	and 	examination philosophy.
Faculty members 	tended 	to 	testify 	that 	readers 	were 	given 	much
more 	direction 	and 	supervision 	regarding 	grading 	than 	did 	the
readers 	who 	testified.
Readers 	must 	have 	taken 	the 	course 	for 	which 	they 	are
reading 	or 	its 	equivalent, 	and 	received 	a 	"B" 	grade 	at 	a 	minimum.
Some 	faculty 	members 	require 	readers 	to 	have 	received 	an 	"A" 	in
the 	course. 	Potential 	readers 	must 	also 	have 	a 	GPA of 	3.0 	or
better. 	Readers 	are 	sometimes 	requested 	to 	attend 	lectures, 	but
it 	is 	not 	considered part 	of 	the 	job 	duties 	and 	they 	cannot 	be
required 	to 	attend.
Readers 	receive 	no 	course 	credit 	for 	the 	duties 	they perform
as 	readers. 	It 	is 	possible, 	however, 	for 	readers 	to 	receive
credit 	for 	engaging 	in 	independent 	study under 	the 	direction 	of
the 	same 	faculty 	member. 	In 	those 	situations, 	the 	faculty 	member
will 	typically 	assign 	additional 	reading 	related 	to 	the 	course
for 	which 	the 	reader 	is 	hired. 	The 	reader 	will 	often 	be 	required
to 	write 	a 	paper 	or make 	a 	presentation 	to 	the 	faculty 	member 	as
part 	of 	the 	independent 	study 	course. 	It 	is 	the 	additional
directed 	reading 	and 	related 	assignments 	for 	which 	the 	reader
receives 	course 	credit, 	not 	the 	work 	as 	a 	reader.
Undergraduate 	readers 	receive 	approximately 	$9.00 	per 	hour
and 	graduate 	students 	approximately 	$9.50 	per 	hour. 	Graduate
students 	are 	paid more 	than 	undergraduates 	recognition 	of
their 	additional 	expertise. 	Non-students 	receive 	the 	graduate
10

rate 	if 	they 	hold 	a 	bachelor's 	degree 	and 	the 	undergraduate 	rate
of 	pay 	if 	they 	do 	not.
The 	time 	for 	which 	readers 	are 	paid 	is 	spent 	almost 	entirely
performing 	grading 	duties 	as 	opposed 	to 	meeting 	with 	faculty
discussing pedagogical 	issues.
The 	financial 	need 	of 	reader 	applicants 	is 	typically 	not
taken 	into 	consideration 	in 	either 	the 	application 	or 	selection
process, 	nor 	are 	the 	salary 	levels 	keyed 	in 	any 	way 	to 	the
financial 	needs 	of 	individual 	readers. 	Commitments 	for 	reader
positions 	are 	not 	included 	in 	letters 	of 	acceptance 	sent 	by UCSD
to 	students, 	which 	also 	details 	financial 	aid packages.
If 	graduate 	students 	hold 	any 	combination 	of 	academic
appointment 	(reader, 	tutor, 	graduate 	teaching 	assistant, 	graduate
research 	assistant 	or 	associate) 	in 	excess 	of 	25 	percent 	of 	full-
time 	equivalent 	position 	(FTE), 	they 	are 	eligible 	for 	two
benefits. 	First, 	they 	receive 	graduate 	student 	health 	insurance
(GSHIP). 	Second, 	they 	are 	eligible 	for 	registration 	and
educational 	fee 	remissions. 	Undergraduate 	and 	non-student
readers 	are 	responsible 	for 	their 	own 	health 	insurance 	and
registration 	and 	educational 	fees. 	Non-student 	readers 	are
placed 	in 	a 	different 	title 	code 	than 	student 	employees 	for
Internal 	Revenue 	Service 	(IRS) 	administrative 	reasons.
The 	reader 	staffing 	ratio 	is 	usually determined 	by
departments 	based upon 	a 	formula. 	Typically, 	courses 	with 	a
large 	number 	of 	writing 	assignments 	get 	more 	readers 	than 	those
with 	assignments 	easier 	to 	grade. 	The 	most 	important 	factor 	in
11

reader 	staffing, 	however, 	is 	the 	number 	of 	students 	enrolled 	in 	a
course. 	As 	such, 	reader 	staffing 	is 	enrollment 	driven. 	For
example, 	in 	sociology 	the 	ratio 	is 	60 	to 	1. 	Thus, 	a 	class 	with
120 	students 	would 	be 	assigned 	two 	readers.
When 	grievances 	arise 	out 	of 	employment 	disputes, 	the
applicable 	grievance 	process 	is 	outlined 	in APM 	140 	and 	its
campus 	equivalent, 	Policy 	and 	Procedures 	Manual 	(PPM) 	230-5.
This 	process 	will 	be 	described 	in 	greater 	detail 	later 	in 	this
decision; 	however, 	it 	can 	generally be 	described 	as 	a 	multi-step
process 	culminating 	in 	a 	hearing 	and 	decision, 	which 	can be
accepted 	or 	rejected 	by 	the 	chancellor.
Disputes 	arising 	out 	of 	academic 	issues 	are 	dealt 	with
through 	informal 	departmental 	processes 	involving 	faculty
advisers, 	provosts, 	deans, 	etc.
In 	some 	courses 	the 	total 	number 	of 	hours 	allotted 	to 	a
reader 	is 	based upon 	the 	enrollment 	of 	the 	course. 	However, 	none
work 	more 	than 	50 	percent 	of 	an 	FTE.
Readers 	have 	initial 	control 	over 	the 	extent 	of 	their
employment. 	They 	are 	urged 	not 	to 	over 	commit 	by 	taking 	on 	more
hours 	than they will 	have 	time 	to 	complete, 	given 	their 	academic
schedule. 	By 	carefully 	considering 	the 	extent 	of 	a 	reader's
commitment, 	it 	is 	hoped 	that 	conflicts 	between 	job 	duties 	and 	the
reader's 	own 	academic 	obligations 	will 	be 	avoided. 	However,
since 	job 	duties 	often 	intensify 	around 	the 	time 	of 	mid-term 	and
final 	exams, 	conflicts 	do 	occasionally 	arise. 	When 	that 	happens,
a 	reader's 	own 	studies 	may 	suffer 	because 	of 	the 	natural 	and
12

necessary priorities 	given 	to 	completing 	grades 	on 	time.
Educational 	objectives 	of 	undergraduate 	students, 	as 	a
group, 	and 	more 	specifically educational 	objectives 	of
undergraduate 	readers, 	are 	difficult 	to 	assess 	because 	their
goals 	in 	general 	are 	more 	in 	flux 	and 	less 	defined 	at 	this 	stage
of 	their 	academic 	life, 	than 	when 	they 	begin 	their 	formal 	career
or 	graduate 	school. 	Numerous 	witnesses 	testified 	about 	the
educational 	objectives 	of 	students. 	Many 	students, 	however,
framed 	their 	testimony 	in 	terms 	of 	their 	motivation 	for 	seeking
employment 	as 	a 	reader, 	rather 	than 	their 	ultimate 	educational
objectives. 	Several 	faculty 	members 	also 	testified 	about 	both
the 	motivations 	and 	the 	general 	educational 	objectives 	of
individuals 	seeking 	reader 	positions. 	To 	the 	extent 	that 	faculty
members 	were 	offering 	their 	own 	subjective 	views 	about 	the
educational 	objectives 	and 	motivation 	of 	readers, 	that 	testimony
is 	speculative 	and 	not 	generally pervasive. 7 	Where 	faculty
7 In 	determining 	the 	educational 	objectives 	of 	the 	student
employees, 	the 	Supreme 	Court 	in Regents 	of 	the 	University of
California 	v. 	Public 	Employment 	Relations 	Board 	(1986) 	41 	Cal.3d
601 	[224 	Cal .Rptr. 	631] 	(Regents) 	made 	it 	clear 	that 	PERB 	was 	to
focus 	on 	the 	personally 	held 	subjective 	perceptions 	of 	the
students 	themselves .
. 	Moreover, 	nothing 	in 	the 	language 	of
subdivision 	(f) 	even 	hints 	that 	the
University's 	subjective 	perceptions 	of 	the
functions 	of 	housestaff 	duties 	should be
taken 	into 	consideration. 	at 	p. 	614,
emphasis 	in 	original.]
13

testimony 	is 	based upon 	objective 	factors 	such 	as 	conversations
with 	individual 	readers, 	that 	testimony 	is 	relevant. 8
The 	testimony 	of 	Dr. 	Barbara 	Sawrey, 	Vice 	Chair 	of 	the
Chemistry and 	Biochemistry Department, 	was 	reflective 	of 	faculty
beliefs 	regarding 	undergraduate 	educational 	goals.
Some 	students 	plan 	on 	going 	on 	to 	get 	a 	job.
Some 	want 	to 	go 	on 	to 	graduate 	school. 	Some
don't 	have 	a 	clue. 	Some 	want 	to 	go 	on 	to
medical 	school; 	very, 	very, 	different 	things.
Most 	reader 	witnesses 	reflected 	a 	desire 	to 	first 	successfully
complete 	their 	undergraduate 	degree 	program. 	Many 	also 	indicated
a 	desire 	attend 	graduate 	school 	at 	some 	time 	in 	the 	future.
A survey of 	the 	1988 	incoming 	freshman 	class 	at 	UCSD
indicated 	that 	the 	top 	five 	reasons 	they were 	going 	to 	college
were: 	"To 	learn 	of 	more 	interesting 	things; 	be 	able 	to 	get 	a
better 	job; 	gain 	appreciation 	of 	education 	and 	ideas; 	prepare 	for
graduate 	school;" 	and 	"be 	able 	to 	make 	more 	money." 	The 	top 	five
"objectives" 	(not 	limited 	to 	educational 	objectives) 	of 	the
entering 	freshman 	class 	were: 	"Becoming 	an 	authority 	in my
field; 	being very well 	off 	financially; 	raising 	a 	family; 	helping
others 	in 	difficulty; 	and 	obtaining 	colleague's 	recognition. 11
Almost 	half 	of 	the 	class 	said 	there 	was 	a 	very 	good 	chance 	they
would: 	"Get 	their 	bachelor's 	degree, 	find 	a 	job 	in 	their 	field;
be 	satisfied with 	college; 	make 	at 	least 	a 	11 B11 average;n 	and 	"get
8To 	the 	extent 	that 	faculty 	and 	staff 	have 	testified 	about
discussions 	they 	have 	had with 	student 	employees, 	however, 	it 	is
hearsay 	testimony 	and 	entitled 	to 	less 	weight 	than 	the 	direct
testimony 	of 	readers 	themselves, 	which 	is 	subject 	to 	the 	scrutiny
of 	cross-examination.
14

a 	job 	to 	pay 	their 	expenses.'' 	The 	top 	probable 	career 	choices
were: 	engineer; 	doctor/dentist; 	undecided; 	business; 	and
scientific 	researcher. 	A career 	as 	an 	educator was 	a 	probable
choice 	for 	only 	4.2 	percent 	of 	the 	incoming 	class 	(two 	ranks
below 	being 	a 	judge 	or 	lawyer, 	and 	one 	rank 	higher 	than 	joining
the 	foreign 	service.)
Based on 	the 	subjective 	testimony of 	readers, 	objective
testimony 	of 	faculty 	and 	other 	evidence 	such 	as 	the 	freshman
survey, 	I 	find 	there 	are 	two 	primary 	educational 	objectives 	of
undergraduate 	readers. 	The 	first 	is 	to 	successfully 	complete
their 	undergraduate 	degree 	program. 	The 	second 	is 	to 	better
position 	themselves 	for 	their 	next 	step 	regarding 	either 	a 	career
or 	graduate 	education program.
The 	educational 	objectives 	of 	graduate 	student 	readers 	in
dispute 	are 	a 	bit 	easier 	to 	ascertain. 	Many, 	although 	not 	all,
are 	hoping 	for 	careers 	as 	educators, 	usually 	in 	higher 	education.
They 	too, 	have 	as 	primary 	educational 	objectives 	finishing 	their
degree 	program 	and 	being well 	positioned 	for 	their 	next 	step.
Since 	they 	are 	already 	in 	graduate 	school, 	they 	are 	usually 	more
focused 	about 	that 	next 	step, 	which 	typically 	is 	employment
oriented 	rather 	than 	continuing 	their 	education. 	For 	them, 	being
well 	positioned means 	having 	demonstratable 	skills 	and 	teaching
experience 	on 	their 	curriculum vitaes.
While 	graduates 	and 	undergraduates, 	are 	motivated 	to 	seek
reader 	positions 	for 	a 	variety 	of 	reasons, 	the 	most 	common 	thread
woven 	through 	all 	the 	testimony was 	that 	readers 	were 	performing
15

a 	job 	for 	which 	they 	expected 	to 	be 	paid. 	Almost 	without
exception, 	readers 	testified 	that 	being 	paid 	for 	this 	work 	was 	a
motivating 	factor 	to 	some 	extent. 	The 	following 	examples 	are
illustrative 	and 	not 	meant 	to 	be 	an 	exhaustive 	or 	complete
recitation 	of 	the 	testimony 	of 	all 	witnesses.
Many 	readers 	indicated pay was 	their 	primary motivation.
For 	example, 	Claudia 	Ehrig was 	employed 	as 	a 	reader 	and 	a 	tutor.
She 	testified 	that 	if 	she 	had 	other 	means 	of 	support, 	she 	would
not 	have 	sought 	the 	employment. 	When 	she 	realized 	she 	could 	make
more 	money 	driving 	the 	UCSD 	shuttle 	bus, 	she 	sought 	that 	job
instead of 	a 	reader 	position. 	Paul 	Briedenbach was 	a 	reader
twice 	during 	the 	summer. 	He 	previously had 	two 	quarters 	of 	a
paid 	fellowship 	which 	had 	ended, 	and 	he 	simply needed 	income 	to
support 	himself. 	Rachelle 	Van 	Bushkirk 	testified 	that 	she 	might
have 	had 	to 	drop 	out 	of 	her 	program, 	had 	she 	not 	been 	able 	to
make 	money 	to 	support 	herself. 	When 	Karen Van 	Ness 	was 	asked why
she 	worked 	as 	a 	reader, 	she 	testified, 	"for 	the 	money." 	Ann
Shea 	testified 	she 	chose 	to 	be 	a 	reader 	"for 	economic 	reasons 	to
support 	myself." 	Lorna 	Lueken was 	admitted 	to 	the 	UCSD 	on 	a
Regents 	fellowship, 	but 	when 	that 	turned 	out 	not 	to 	provide
enough money 	to 	pay 	her 	bills, 	she 	took 	a 	job 	as 	a 	reader.
Many others 	were 	motivated 	by 	a 	combination 	of 	income 	plus
the 	flexibility 	a 	readership 	position provides. 	When Monica
Szurmuk 	worked 	as 	a 	reader, 	her 	son 	had 	just 	been 	born 	and 	she
could 	do 	the 	work 	at 	home. 	Had 	she 	had 	other means 	of 	financial
support 	during 	that 	time, 	she 	would 	not 	have 	chosen 	to 	work 	as 	a
16

reader. 	John 	Putman 	chose 	to 	work 	as 	a 	reader 	because 	he 	has 	a
family 	to 	support 	and 	needed 	additional 	income. 	He 	was 	usually
on 	campus 	already, 	so 	the 	logistics 	of 	a 	readership 	were
convenient 	because 	he 	would 	not 	have 	to 	leave 	campus 	to 	go 	to
work.
Susan 	Light 	testified 	that 	she 	took 	a 	job 	as 	a 	reader
because 	she 	had 	no 	other 	sources 	of 	income 	and 	she 	needed 	the
money. 	Had 	she 	received 	a 	fellowship 	or 	scholarship, 	she 	would
have 	taken 	that 	in 	preference 	to 	any 	readership. 	She 	has
previously worked 	as 	a 	clerical 	employee 	in 	a 	temporary
employment 	agency 	and was 	able 	to 	make 	more 	money. 	She 	would
have 	preferred 	temporary 	clerical 	work 	because 	the 	income 	was
better, 	however, 	her 	academic 	schedule 	made 	it 	difficult 	to
accept 	temporary work 	even 	though 	she 	would make 	more 	money.
A few 	others 	testified 	that 	along 	with 	being 	paid, 	the 	work
was 	interesting. 	Matthew Talpis 	realized 	that 	when 	other
students 	asked 	him 	questions, 	he 	enjoyed 	helping 	them 	out. 	When
he 	saw a 	flyer 	for 	a 	proctor 	position 	in 	CSE, 	he 	thought 	that
would 	be 	a 	fun 	job 	because 	he 	would 	be 	able 	to 	help 	others. 	Brit
Loftesnes 	was 	motivated 	because 	the 	work 	seemed 	interesting. 	She
also 	sought 	it 	for 	financial 	reasons, 	but 	that 	was 	not 	the 	main
reason. 	Likewise, 	Brian Ruff 	was 	a 	proctor 	in 	CSE, 	primarily
because 	he 	liked 	it, 	and 	it 	gave 	him 	an 	opportunity 	to 	learn
course 	material 	another 	way. 	Financial 	reasons 	were 	only
secondary 	for 	him. 	Michael 	Pinkerton became 	a 	proctor 	in 	CSE
because 	it 	paid well 	compared 	to 	other 	positions 	available 	to
17

undergraduates. 	However, 	he 	continued 	in 	the 	position 	because 	he
liked 	the 	work.
Pinkerton was 	not 	the 	only witness 	who 	gained 	insight 	about
teaching. 	Trang Vu 	is 	now 	a 	professional 	staff 	member 	within
UCSD's 	Office 	of 	Academic 	Support 	and 	Instructional 	Service
(OASIS). 	She 	coordinates 	the 	OASIS 	Before 	Calculus 	program.
While 	Vu 	was 	a 	student 	at 	UCSD, 	she 	was 	a 	reader 	in 	the 	Math
Department. 	She 	was 	exploring 	the 	possibility 	of 	becoming 	a
teacher 	and 	sought 	a 	readership 	to 	gain 	insight 	about 	what 	grade
level 	she 	wanted 	to 	teach 	and 	to 	build 	contacts 	within 	the 	Math
Department.
Lea 	Hubbard 	sought 	out 	certain 	reader 	positions 	in 	order 	to
learn 	from 	particular 	faculty 	members 	who 	were 	experts 	in 	fields
that 	interested 	her. 	Becoming 	a 	reader 	was 	a 	way 	for 	her 	to
build 	rapport 	with 	the 	faculty 	and 	to 	make 	some 	money 	in 	the
process.
Abe 	Shragge 	testified 	that 	he 	was 	motivated 	to 	become 	a
reader 	to 	do 	some 	reading 	in 	areas 	that 	interested 	him 	and 	to
learn 	how 	to 	become 	a 	college 	instructor. 	He 	also 	wanted 	to
build 	his 	inventory 	of 	lecture 	notes 	for 	his 	own 	teaching 	that 	he
was 	doing 	at 	local 	community 	colleges.
University witness 	Dr. 	Stephen 	Cox 	is 	a 	Professor 	of
Literature 	and 	Director 	of 	the 	UCSD 	Humanities 	Program. 	He
testified 	that: 	11 	the 	students 	certainly want 	to 	be 	readers
because 	they want 	some 	financial 	support. 	11 	Students 	have
told 	him: 	"This 	is 	important 	for 	me 	to 	get 	some 	money." 	Cox
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also 	testified 	that 	readers 	look 	forward 	to 	opportunities 	to 	work
directly with 	certain 	faculty.
Dr. 	Ruth 	Williams, 	a 	professor 	of 	mathematics 	at 	UCSD,
testified 	that 	readers 	are 	motivated 	by 	the 	opportunity 	to 	brush
up 	on 	material 	they 	learned 	some 	time 	ago 	or 	learn 	material 	more
thoroughly because 	they 	are 	interested 	in 	a 	particular 	area.
Occasionally, 	Dr. 	Williams 	also 	has 	readers 	who 	are 	preparing 	for
actuarial 	examinations 	and 	use 	their 	position 	to 	review material
prior 	to 	taking 	their 	exams.
According 	to 	Dr. 	Sawrey, 	readers 	take 	their 	positions
because: 	"They 	thoroughly 	enjoy 	the 	comradery 	that 	comes 	with
being 	a 	grader, 	because 	they're 	working 	as 	part 	of 	a 	team with
TA's 	and 	the 	faculty 	on 	an 	educational 	venture. 	" 	Sawrey
testified 	that 	readers 	are 	also 	motivated by 	the 	opportunity 	to
get 	to 	know 	faculty, 	other 	teacher 	assistants 	(TAs), 	or 	graduate
students 	who 	are 	at 	the 	next 	step 	educationally. 	It 	also 	helps
them 	review material 	or 	prepare 	for 	other 	examinations 	and, 	as 	a
bonus, 	they 	also 	get 	paid.
Professor 	Rand 	Steiger, 	Chair 	of 	the 	Music 	Department,
indicated 	that 	student 	employees 	in music 	often 	seek 	positions
outside 	the 	Music 	Department 	because 	the 	pay 	is 	better.
The 	clear 	pattern which 	develops 	about 	the 	motivation 	of
readers 	in 	accepting 	the 	position 	is 	that 	first 	and 	foremost,
readers 	are 	looking 	for 	an 	opportunity 	to 	generate 	income. 	While
there 	are 	some 	exceptions 	to 	this 	generalization, 	it 	would 	be 	a
rare 	case 	indeed where 	readers 	would 	seek 	the 	experience 	were
19

they 	not 	compensated. 	While 	many 	readers 	testified 	that 	income
was 	their 	only motivation, 	many 	also 	indicated 	that 	multiple
factors 	influenced 	them 	to 	seek 	such 	employment. 	I 	therefore
also 	find 	that 	to 	a 	significantly 	lesser 	extent, 	individuals 	seek
employment 	as 	readers 	because 	they 	think 	the 	job 	offers 	them 	an
opportunity 	to 	help 	other 	students, 	review materials 	or 	courses
that 	might 	interest 	them, 	interact 	with 	faculty, 	have 	a 	flexible
work 	schedule, 	to 	explore 	teaching 	as 	a 	career, 	prepare 	for 	other
examinations, 	and 	because 	the 	job would 	be 	enjoyable.
The 	extent 	to 	which 	readers 	are 	successful 	in 	realizing 	the
factors 	which motivated 	them 	to 	take 	the 	job varies 	a 	great 	deal.
The 	most 	easily measured, 	of 	course, 	is 	the 	generation 	of 	income.
Except 	for 	some 	differences 	in 	testimony 	about 	whether 	readers
work 	more 	or 	less 	hours 	than they 	are 	paid, 	there 	is 	no 	dispute
that 	readers 	get 	paid 	for 	the 	job 	they perform. 	There 	is 	also 	no
dispute 	that 	the 	job 	provides 	a 	degree 	of 	flexibility 	necessary
for 	a 	student's 	academic 	schedule.
Whether 	the 	job provides 	an 	enjoyable 	environment 	where
readers 	can 	assist 	fellow 	students 	seems 	to 	depend 	a 	great 	deal
on 	the 	setting 	for 	the 	job. 	Proctors 	in 	a 	computer 	lab 	like
Talpis 	and 	Pinkerton 	interact 	with 	students 	on 	a 	regular 	basis.
They 	review work 	personally with 	students, 	answer 	their
questions, 	and 	give 	advice. 	Proctors 	enjoy 	the 	interaction 	and
the 	job meets 	the 	interests. 	The 	vast 	majority of 	readers,
however, 	do 	not 	experience 	that 	type 	of 	interaction. 	For most
readers, 	it 	is 	quite 	the 	opposite. 	Most 	have 	no 	contact 	with 	the
20

students 	they 	are 	grading, 	they do 	not 	hold 	office 	hours, 	and 	do
not 	attend 	lectures. 	Most 	readers 	rarely 	receive 	feedback 	from
students.
Interaction with 	faculty 	is 	also 	very 	limited 	for 	most
readers. 	The 	comradery of 	working 	on 	a 	team 	in 	an 	educational
venture 	as 	described 	by Dr. 	Sawrey was 	noticeably 	absent 	from 	the
testimony of 	most 	readers. 	The 	norm 	is 	for 	faculty 	members 	and
readers 	to 	meet 	at 	the 	beginning 	of 	the 	quarter 	to 	discuss
grading 	strategy. 	They might 	also 	occasionally meet 	throughout
the 	quarter when 	papers 	or 	exams 	are 	due.
Dr. 	Michael 	Davidson, 	Professor 	of 	Literature 	at 	UCSD 	and
Vice 	Chair 	of 	the 	department, 	observed 	that 	if 	the 	objective 	was
to 	have 	more 	contact 	with 	a 	professor, 	it 	would 	be 	more 	effective
to 	enroll 	in 	the 	professor's 	course 	than 	to 	be 	a 	reader. 	For 	the
most 	part, 	employment 	as 	a 	reader 	appears 	to 	be 	a 	rather 	solitary
endeavor 	involving 	little 	contact 	with 	either 	faculty 	or
students.
If 	students 	were 	considering 	a 	career 	as 	an 	educator,
grading papers 	would 	certainly give 	them 	a 	flavor 	for 	part 	of 	the
teaching 	profession. 	However, 	some 	students 	sought 	the 	job 	only
because 	other 	positions 	such 	as 	teaching 	assistantships, 	which
would provide 	more 	teaching 	experience, 	were 	not 	available.
There 	was 	evidence 	that 	some 	readers 	have 	been 	successful 	in
building 	relationships 	with 	faculty. 	Abe 	Shragge, 	for 	example,
has 	worked with many 	faculty 	in 	order 	to 	gain 	exposure 	to
different 	readings 	and methods 	of 	teaching. 	While 	working 	on 	his
21

dissertation, 	Shragge 	also 	teaches 	history 	at 	two 	local 	community
colleges. 	He 	has 	used 	his 	employment 	as 	a 	reader 	to 	gather 	over
1000 	pages 	of 	lecture 	notes, 	which 	he 	uses 	in 	his 	own 	teaching.
Lea 	Hubbard 	is 	another 	example 	of 	a 	reader 	successfully
building 	relationships 	with 	faculty. 	She 	sought 	out 	reader 	jobs
with 	certain 	faculty 	in 	order 	to 	learn 	that 	faculty 	member's
specialty. 	She 	was 	also 	considering 	a 	faculty 	member 	for 	her
dissertation 	committee 	and wanted 	the 	opportunity 	to 	get 	to 	know
him. 	When Hubbard was 	asked 	to 	be 	a 	reader 	for 	another 	faculty
member, 	she 	agreed 	because 	that 	faculty 	member 	had 	been
supportive 	of 	Hubbard's 	admission 	into 	graduate 	school.
Matthew 	Talpis 	was 	also 	successful 	at 	building 	contact 	with
particular 	faculty 	members. 	He 	described one 	professor 	as 	"very
practical, 	a 	very 	cool 	guy," 	so 	he 	wanted 	to 	sit 	in 	on 	his
course. 	He 	thought 	he 	would 	not 	have 	the 	time 	to 	do 	all 	the
projects, 	so 	by grading 	them 	he 	could 	learn 	about 	the 	processes
being 	taught 	without 	the 	same 	investment 	of 	time.
The 	experiences 	of 	Talpis, 	Hubbard 	and 	Shragge 	demonstrate
that 	some 	readers 	do 	select 	jobs 	to 	increase 	their 	knowledge 	of 	a
subject 	matter 	or 	build 	relationships 	with 	faculty. 	This 	subject
matter 	knowledge 	could 	also 	be 	helpful 	if 	the 	reader 	were
studying 	for 	some 	type 	of 	related 	exam.
In 	these 	cases, 	however, 	much 	of 	the 	interpersonal 	contact
that 	is 	developed 	seems 	to 	stem 	from 	the 	readers 	attendance 	at
lectures, 	which 	is 	not 	part 	of 	the 	typical 	readership, 	and 	the
reader's 	personal 	desire 	to 	build 	a 	relationship 	with 	a
22

particular 	faculty 	member. 	While 	employment 	as 	a 	reader may 	make
such 	contact 	easier, 	it 	is 	not 	an 	inherent 	aspect 	of 	the 	job
itself. 	These 	experiences 	stand 	in 	contrast 	to 	most 	readers 	who
seem 	to 	look 	at 	the 	reader's 	experience 	as 	a 	job.
There 	was 	ample 	evidence 	in 	the 	record 	that 	readers 	are
vital 	to 	the 	accomplishment 	of 	UCSD's 	teaching 	mission.
Several 	witnesses 	testified 	that 	when 	students 	were 	not
available, 	they would 	hire 	non-students 	because 	it 	was 	necessary
to 	maintain 	the 	integrity 	and 	quality 	of 	the 	teaching 	mission.
Acting 	Provost 	Daniel 	Wulbert 	testified 	that 	the 	use 	of 	both
readers 	and 	tutors 	was 	essential. 	Professor 	Davidson 	summarized
how 	he 	would 	have 	to 	operate 	without 	readers 	as 	follows:
Well, 	if 	I 	didn't 	have 	a 	reader 	in 	an 	upper
division 	course 	that 	had 	a 	large 	enrollment
. 	I 	would probably 	rely more 	on 	tests 	and
multiple 	choice 	kinds 	of 	situations 	than
papers, 	but 	I 	think 	that's 	pedagogically
irresponsible 	because 	. 	. 	what 	you 	can 	ask
on 	a 	multiple 	choice 	test 	is 	pretty minimal,
whereas 	on 	a 	paper 	you 	can 	really 	get 	to 	see
what 	they're 	thinking.
Dr. 	Ellen 	Switkes, 	Assistant 	Vice 	President 	for 	Academic
Advancement, 	Office 	of 	the 	President, 	testified 	that 	the
University 	could manage 	without 	readers 	and 	tutors, 	but
acknowledged 	that, 	"it 	would 	be 	bad 	for 	the 	educational
enterprise." 	Dr. 	Switkes' 	solution would 	be 	for 	faculty 	to 	read
more 	papers 	and 	assign 	fewer 	papers. 	Faculty, 	who 	have 	already
been 	required 	to 	increase 	their 	duties 	due 	to 	previous 	budget
cuts, 	would 	also 	have 	to 	hold more 	office 	hours 	and 	either
conduct 	tutorials 	in 	larger 	classes 	or 	eliminate 	them 	altogether.
23

Dr. 	Switkes 	also 	indicated 	that 	graduate 	TAs 	could perform more
of 	these 	tasks. 	In 	other words, 	either 	eliminate 	work 	which 	has
been 	highly valued, 	or 	pass 	it 	on 	to 	other 	University 	employees,
including 	other 	student 	employees.
Tutors
Tutors 	are 	used 	in 	two 	primary ways. 	The 	majority of 	those
in 	the 	tutor 	title 	are 	hired 	to 	do 	one-on-one 	or 	group 	tutoring
through 	the 	OASIS 	program. 	A significant 	number, 	however, 	are
also 	used 	within 	various 	departments 	as 	undergraduate 	teaching
assistants 	(TAs) . 9
The 	OASIS 	program plays 	a 	vital 	role 	in 	the 	success 	of 	the
UCSD 	student 	body. 	The 	program 	is 	designed 	specifically 	to
provide 	a 	variety of 	services 	to 	maximize 	student 	performance 	and
retention 	at 	UCSD. 	Programs 	range 	from 	services 	helping 	students
overcome 	past 	academic 	deficiencies 	to 	programs 	designed 	to 	help
them 	excel 	in 	a 	subject 	matter 	or 	academic 	skill. 	Between 	37 	and
39 	percent 	of 	the 	UCSD 	student 	population 	uses 	the 	OASIS 	program.
Past 	statistics 	indicate 	that 	over 	60 	percent 	of 	all 	freshmen 	use
OASIS 	services.
An 	example 	of 	an 	OASIS 	program which 	uses 	tutors 	is 	the
Underground 	Tutorial 	Program. 	This 	is 	a 	drop-in 	tutoring 	center
where 	students 	receive 	one 	on-one 	tutoring 	on 	subject 	specific
9Graduate 	Teaching Assistants 	are 	in 	a 	different 	job 	title
not 	at 	issue 	in 	this 	hearing. 	For 	the 	remainder 	of 	this 	decision
unless 	specified 	otherwise, 	the 	term 	TA 	refers 	to 	undergraduate
students 	in 	the 	tutor 	title 	code 	performing 	teaching 	assistant
duties. 	When 	I 	refer 	generically 	to 	individuals 	in 	either 	the
tutor 	or 	undergraduate 	TA 	role, 	I 	will 	use 	the 	term 	tutor/TA.
24

problems, 	such 	as 	biology, 	chemistry, 	math, 	economics, 	or
computer 	science. 	Courses 	are 	offered 	in 	subject 	matters 	as 	a
result 	of 	student 	demand, 	but 	OASIS 	also 	periodically analyzes
which 	courses 	cause 	difficulty 	for 	the 	greatest 	number 	of
students 	to 	insure 	that 	students 	are 	offered what 	they 	need 	most.
Another 	OASIS 	program 	is 	the 	Writing 	Center, 	where 	students
can 	schedule 	appointments 	with 	writing 	tutors 	to 	improve 	their
writing 	skills 	and 	strategies. 	Assistance 	is 	available 	for 	a
range 	of 	different 	writing 	situations, 	from 	essays 	to 	lab
reports, 	and 	across 	disciplines, 	from 	science 	to 	literature.
Both one-on-one 	and 	small 	group 	tutoring 	is 	available.
The 	Study Management 	Center 	offers 	skill-building, 	reading
and 	study 	skills 	strategies. 	It 	offers 	practice 	and 	strategies
for 	taking 	tests, 	and mini 	courses 	and 	seminars 	on 	subjects 	such
as 	time 	management, 	concentration 	and 	memory 	techniques.
The 	Before 	Calculus 	program 	supports 	students 	in 	their
efforts 	to 	build 	a 	foundation 	for 	the 	calculus 	sequence. 	The
Language 	Program offers 	assistance 	to 	students 	in 	reading,
writing 	and 	speaking 	English 	if 	that 	is 	not 	their 	primary
language. 	It 	also 	offers 	tutoring 	to 	students 	needing 	to 	study
other 	languages. 	For 	example, 	students 	taking 	a 	course 	in
Russian 	literature, 	can 	get 	tutoring 	in 	both 	reading 	and writing
in 	Russian 	languages.
OASIS 	also 	offers 	several 	programs 	specifically aimed 	at
assisting 	under-represented 	and 	low 	income 	students, 	first
25

generation 	college 	students, 	first 	year 	students 	and 	others 	at
higher 	risk 	of 	academic 	difficulty 	or 	attrition.
The 	actual 	duties 	of 	OASIS 	tutors 	will 	vary 	depending 	upon
the 	particular 	program 	in which 	they work. 	Typically, 	however,
they will 	have 	set 	hours 	when 	they 	will 	go 	to 	an 	assigned
location 	and 	do 	one-on-one 	individual 	tutoring.
The 	second way 	tutors 	are 	used 	is 	as 	undergraduate 	TAs
within 	various 	departments. 	During 	the 	early 	1970s 	when 	the 	UCSD
undergraduate 	population 	increased 	dramatically, 	the 	existing
faculty 	was 	incapable 	of 	fulfilling 	the 	demand 	for 	more
undergraduate 	courses. 	UCSD 	needed 	a 	cost 	effective 	way 	of
dealing 	with 	the 	increased 	teaching 	load.
According 	to 	the 	credible 	testimony of 	Professor 	Paul
Saltman, 	the 	use 	of 	undergraduate 	TAs 	began 	in 	1971 	when 	he 	was
Provost 	of 	Revelle 	College. 	Saltman maintained 	a 	heavy 	teaching
load 	lower 	division 	biology 	along 	with 	his 	provost 	duties.
When 	another 	faculty 	member 	suddenly 	took 	a 	sabbatical, 	there 	was
an 	urgent 	need 	to 	fill 	in 	for 	the 	missing 	faculty 	member. 	There
was 	a 	commitment 	within 	Revelle 	College 	that 	significant 	lower
division 	courses 	would 	be 	taught 	by 	senior 	faculty. 	Saltman 	did
not 	want 	to 	break 	that 	commitment 	by 	hiring 	a 	part 	time 	employee
to 	teach 	the 	course, 	so 	he 	took 	it 	on 	himself. 	With 	the 	addition
of 	the 	extra 	course, 	Saltman was 	teaching 	lower 	division 	biology
to 	over 	600 	students. 	He 	had 	a 	desperate 	need 	for 	teaching
assistants 	who, 	in 	the 	past, 	had 	always 	been 	graduate 	students.
The 	department, 	however, 	had 	already 	assigned 	all 	the 	available
26

graduate 	students 	that 	it 	had. 	Saltman personally 	recruited
several 	post 	doctoral 	fellows 	to 	assist 	him 	as 	TAs, 	but 	he 	still
needed 	additional 	help. 	Saltman 	then 	asked 	for 	and 	received
special 	permission 	from 	the 	academic 	senate 	to 	use 	a 	group 	of
undergraduate 	senior majors 	in 	biology who 	had 	done 	well 	in 	his
course 	as 	TAs 	along 	with 	the 	graduate 	students 	and 	post 	doctoral
fellows.
According 	to 	Saltman, 	the 	course 	was 	an 	inadvertent 	but
perfect 	experiment 	because 	the 	students 	were 	assigned 	randomly 	to
various 	TAs. 	At 	the 	end 	of 	the 	course, 	Saltman 	noticed 	an
interesting 	pattern. 	The 	students 	taught 	by 	the 	graduate 	student
TAs 	had 	average 	grades 	lower 	than 	those 	taught 	by post 	doctoral
fellows. 	The 	best 	average 	grades 	came 	from 	classes 	taught 	by 	the
undergraduate 	TAs 	who 	had 	the 	least 	amount 	of 	formal 	taught
knowledge.
Saltman 	investigated 	this 	finding 	by 	talking 	to 	both TAs 	and
students, 	and 	found 	that 	students 	taught 	by 	fellow 	undergraduates
felt 	those 	TAs 	were 	giving more 	time, 	effort 	and 	commitment 	to
the 	learning 	process 	of 	their 	peers. 	Students 	felt 	the 	graduate
students 	were 	much more 	concerned 	about 	getting 	their 	own
research 	done 	for 	their 	thesis.
The 	next 	year 	Saltman 	became 	Vice 	Chancellor 	of 	Academic
Affairs 	and 	helped 	push 	the 	extensive 	use 	of 	the 	best
undergraduates 	as 	TAs 	to 	compensate 	for 	the 	enormous 	number 	of
students 	they 	had 	to 	teach 	and 	the 	small 	number 	of 	graduate
students 	available. 	Saltman 	has 	become 	an 	impressive 	advocate
27

for 	peer 	teaching 	and 	collaborative 	learning 	efforts, 	believing
them 	to 	be 	to 	the 	advantage 	of 	both 	the 	students 	and 	the 	TAs. 	It
intensifies 	the 	learning 	process 	for 	students 	while 	at 	the 	same
time 	creating 	for 	the 	TA a 	love 	of 	teaching 	and 	a 	gratification
that 	comes 	from 	seeing 	fellow 	students 	learn. 	The 	experience
also 	builds 	the 	substantive 	knowledge 	of 	course 	material,
develops 	communication 	skills, 	builds 	confidence 	and provides
opportunities 	for 	leadership.
Typically, 	TAs 	will 	meet 	with 	the 	faculty 	at 	the 	start 	of
the 	quarter 	to 	discuss 	strategies 	and 	expectations. 	TAs 	usually
attend 	all 	lectures 	and 	have 	regular 	weekly meetings. 	These
meetings 	vary 	from 	just 	touching 	bases 	for 	a 	few 	minutes 	after
the 	lecture 	session 	to 	lengthier, 	regularly 	scheduled meetings
where 	problems 	and 	teaching 	strategies 	are 	discussed. 	TAs 	must
usually be 	available 	to 	students 	during 	regularly 	scheduled
office 	hours 	(two 	to 	three 	hours 	per week). 	TAs 	lead 	discussion
sections 	of 	the 	course 	and might 	also 	lead 	review 	sessions 	for
mid-term 	or 	final 	exams. 	They 	also 	help 	with 	grading 	of 	exams.
Prior 	to 	becoming 	a 	paid 	tutor/TA, 	however, 	almost 	all
individuals 	must 	perform 	the 	duties 	for 	one 	quarter 	while 	they
receive 	course 	credit 	and 	undergo 	training 	in 	pedagogy.
It 	should be 	noted 	that 	during 	the 	training 	program 	their
initial 	quarter, 	the 	tutor/TAs 	are 	receiving 	course 	credit, 	not
pay, 	and 	they 	are 	specifically excluded 	from 	the 	petition 	in 	this
28

case. 	The 	requested 	unit 	includes 	only 	those 	tutor/TAs 	who 	have
been 	hired 	into 	paid 	positions.w
The 	training 	is 	offered 	through 	three 	primary 	sources: 	A
course 	within 	the 	OASIS 	program 	known 	as 	TEP 	116 11 ; 	courses
sponsored by 	the 	University's 	Center 	for 	Teacher 	Development
(CTD); 	or 	through 	training 	programs 	offered by 	individual
departments. 	It 	is 	only possible 	to 	take 	the 	training 	course
once 	for 	credit 	because 	repeating 	it 	would provide 	diminishing
returns.
All 	new OASIS 	tutors 	must 	take 	TEP 	116. 	It 	is 	an 	upper
division 	four 	unit 	course 	taught 	within 	the 	OASIS 	program. 	The
course 	meets 	weekly 	and 	balances 	lectures 	and 	readings 	with 	the
opportunity 	to 	gain practical 	experience 	as 	a 	tutor. 	The 	course
content 	focuses 	upon 	both 	the 	teaching 	and 	learning 	process.
Class 	discussions 	include 	topics 	such 	as 	collaborative 	learning,
social 	issues 	in 	education, 	cultural 	issues, 	learning 	theory,
etc.
The 	course 	also 	includes 	a 	practicum 	assignment 	within 	the
OASIS 	program. 	As 	part 	of 	the 	practicum, 	participants 	engage 	in
supervised 	tutoring. 	They begin 	gradually 	accepting 	increasing
tutor 	duties 	toward 	the 	end 	of 	the 	course. 	The 	speed 	at 	which
10There 	was 	some 	evidence 	that 	a 	very 	small 	number 	of
departments 	do 	not 	require 	TAs 	to 	have 	completed 	a 	training
course 	for 	credit 	prior 	to 	being 	hired 	as 	a 	paid TA. 	They
apparently 	require 	training 	during 	the 	first 	quarter 	of
employment 	as 	a 	paid TA, 	but 	do 	not 	offer 	credit 	for 	the
training, 	nor 	do 	they 	consider 	it 	a 	prerequisite 	to 	being 	hired.
11The 	course 	was 	previously 	called TEP 	196 	and 	is 	referred 	to
as 	such by most 	of 	the 	witnesses.
29

they 	begin 	tutoring 	duties 	depends 	upon 	their 	skills 	and 	the
structure 	of 	the 	program 	to 	which 	they 	are 	assigned. 	For
example, 	in 	the 	OASIS 	Underground 	Tutoring 	Center, 	tutors 	might
start 	after 	a 	couple 	of 	weeks 	of 	observation, 	role 	playing 	and
feedback. 	In 	the 	writing 	program, 	however, 	tutors 	may wait 	until
the 	seventh 	or 	eighth week 	before 	they do 	any 	actual 	tutoring.
Participants 	in 	TEP 	116 	may 	also 	be 	videotaped 	and 	given 	feedback
about 	the 	video 	sessions 	by OASIS 	staff.
Training 	for 	TAs 	is 	available 	through 	workshops 	offered 	by
the 	CTD. 	Services 	provided by CTD 	include 	individual
consultations, 	workshops 	about 	teaching 	methods 	and 	feedback
through 	the 	use 	of 	videotaping, 	student 	questionnaires, 	classroom
observations 	and 	other methods. 	Workshops 	commonly 	include
topics 	such 	as 	cognitive 	strategies 	and 	student 	learning 	styles,
classroom management, 	cultural 	diversity, 	sexual 	harassment,
preparing 	instructional 	materials, 	fairness 	and 	objectivity 	in
grading, 	and 	dealing 	with 	problem 	students, 	among 	other 	issues.
At 	least 	three 	fourths 	of 	the 	departments 	at 	UCSD 	that 	utilize
undergraduate 	TAs 	have 	their 	staff 	trained by 	the 	CTD.
The 	third 	source 	of 	training 	are 	individual 	departments 	with
their 	own 	training 	programs. 	A good 	example 	is 	the 	program
required 	by 	the 	biology 	and 	chemistry 	departments. 	That 	training
is 	a 	series 	of 	pedagogy workshops 	run 	by 	Professor 	Gabriele
Weinhausen, 	conjunction 	th 	other 	facul 	Those 	enrolled 	in
the 	training 	are 	given 	four 	units 	of 	credit 	and 	are 	expected 	to
30

perform 	the 	full 	range 	of 	TA duties 	during 	the 	quarter 	in which
they 	are 	trained.
The 	training 	includes 	topics 	such 	as 	the 	duties 	and
responsibilities 	of 	TAs, 	conducting 	the 	first 	class, 	teaching 	a
lab 	course 	versus 	a 	lecture 	course 	with 	sections, 	questioning
skills, 	tension 	points 	in 	teaching, 	academic 	regulations, 	grading
strategies, 	cheating 	policies, 	sexual 	harassment, 	using
blackboards 	more 	effectively, 	etc.
The 	course 	includes 	regular 	weekly 	class 	meetings. 	Course
instructors 	will 	also 	observe 	at 	least 	one 	section 	discussion led
by each TA 	in 	order 	to 	give 	feedback 	to 	the 	TA. 	At 	the 	end 	of
the 	quarter, 	TAs 	are 	supposed 	to 	receive 	evaluations 	from
students 	in 	the 	section 	and 	the 	faculty 	member 	for 	whom 	they
work. 	Faculty 	evaluations, 	however, 	are 	not 	consistently given.
While 	it 	is 	expected 	that 	the 	training 	will 	enhance 	the
educational 	experience 	of 	the 	tutor/TAs 	themselves, 	the 	primary
reason 	for 	the 	training 	is 	to 	ensure 	a 	certain 	level 	of 	quality
in 	the 	instructional 	program offered 	to 	UCSD 	students. 	The
University wants 	the 	tutor/TAs 	to 	have 	a 	certain 	level 	of 	polish,
good 	communication 	and 	interpersonal 	skills, 	and 	substantive
knowledge. 	The 	University wants 	assurance 	that 	the 	tutor/TAs 	are
interacting with 	students 	in 	an 	appropriate 	manner. 	The 	training
is 	designed 	to 	help 	them become 	better 	tutors, 	not 	better
students.
According 	to 	Cecilia 	Ubilla, 	Coordinator 	of 	the 	Language
Program 	at 	OASIS, 	it 	is 	not 	part 	of 	her 	program's 	mission 	to
31

train 	the 	paid 	tutors. 	She 	expects 	them 	to 	be 	qualified when
they 	are 	hired. 	She 	testified:
Well, 	the 	goals 	are 	to 	serve 	the 	population
with 	highly 	trained 	personnel. 	Now 	if
the 	student 	tutors 	later 	decide 	. 	. 	that
they 	are 	stronger workers 	because 	they've
worked 	with 	us, 	we 	have 	no 	control 	over 	that
and 	it's 	not 	the 	goal 	of 	the 	University 	to
prepare 	them 	for 	any particular 	career.
We 	don't 	intend 	to 	prepare 	them 	to 	become
teachers 	or 	for 	any 	other 	profession. 	Our
main 	concern 	is 	how well 	they're 	working 	and
delivering 	services 	we 	are 	paying 	them 	for.
There 	are, 	in 	fact, 	several 	other programs 	at 	UCSD 	designed
specifically 	to 	prepare 	and 	credential 	those 	students 	seeking 	to
become 	teachers.
There 	is 	sharp 	disagreement 	among 	witnesses 	about 	the 	value
of 	the 	training. 	Numerous 	faculty 	witnesses 	such 	as 	Professors
Weinhausen, 	Saltman, 	and 	Cifarelli, 	among 	others, 	testified 	that
the 	training was 	essential 	preparation, 	not 	only 	for 	long-term
success 	as 	a 	tutor/TA, 	but 	also 	for 	short 	term 	survival. 	Without
the 	information 	and 	resources 	provided 	in 	the 	training, 	tutor/TAs
would 	be 	destined 	to 	make, 	and 	constantly 	repeat, 	common
mistakes. 	They would 	not 	only 	fail 	to 	effectively 	serve 	the
undergraduate 	student 	population 	they 	are 	supposed 	to 	be 	helping,
but 	their 	own 	learning 	experience 	would 	be 	significantly 	reduced.
Other witnesses, 	mostly 	tutor/TAs, 	testified 	that 	while 	they
may 	have 	found 	the 	issues 	relevant 	and/or 	interesting, 	they 	did
not 	gain 	a 	great 	deal 	from 	the 	t 	Still 	other 	tutor/TAs
testified 	that 	the 	training was 	of 	no 	value 	whatsoever. 	Scott
32

Penrose-Kafka, 	for 	example, 	testified 	that 	the 	class 	merely
included 	discussions 	about 	current 	events 	and 	that 	11 it 	was
useless 	and 	a 	waste 	of 	time. 11 	He 	was 	adamant 	that 	it 	offered
nothing 	relevant 	to 	his 	work 	as 	a 	tutor.
I 	believe 	there 	are 	three 	explanations 	for 	this 	discrepancy
in 	testimony 	about 	the 	value 	of 	the 	training. 	First, 	most
faculty 	members 	testifying 	about 	the 	value 	of 	the 	training 	have
both 	a 	greater 	breadth 	and 	depth 	of 	experience 	about 	how
pedagogical 	instruction might 	benefit 	tutor/TAs 	than 	do 	the
tutor/TAs 	themselves. 	Second, 	some 	of 	the 	tutor/TAs 	might 	not
have 	derived 	as 	much 	benefit 	from 	the 	training 	as 	others 	because
they 	already 	had 	experience 	either 	teaching 	or 	tutoring prior 	to
attending UCSD. 	Finally, 	some 	individuals 	appear 	to 	be 	closed
minded 	and 	unwilling 	to 	accept 	any new 	concepts 	and 	methods.
I 	find 	that 	the 	training 	provided 	through 	TEP 	116, 	the 	CTD
program or 	the 	individual 	departmental 	TA 	training, 	such 	as 	that
offered 	in 	biology 	and 	chemistry, 	to 	be 	of 	immediate 	and 	long
term value 	to 	most 	tutor/TAs. 	To 	the 	extent 	that 	witnesses
testified 	that 	it 	was 	valueless, 	their 	testimony 	is 	found 	not 	to
be 	credible 	and 	is 	disregarded.
The 	training 	courses 	are 	not 	limited 	to 	those 	individuals
seeking 	paid positions. 	Some 	students 	take 	the 	course 	simply 	to
explore 	teaching 	as 	a 	career. 	Others 	take 	them 	because 	they
heard 	it 	was 	an 	easy upper 	division 	course, 	to 	refresh 	their
knowledge 	of 	certain 	subjects, 	to 	gain 	confidence, 	or 	to 	add
33

credentials 	to 	their 	resumes. 	Most, 	however, 	take 	the 	course 	in
order 	to 	be 	eligible 	for 	a 	paid position.
Some 	tutor/TAs 	who 	were 	originally motivated 	by 	the
possibility 	of 	a 	paid position do 	not 	necessarily 	continue 	on
into 	a 	paid 	position. 	Sometimes 	participants 	feel 	they 	have
obtained whatever 	learning 	they 	had 	been 	seeking 	from 	the
training 	course 	and 	do 	not 	feel 	a 	need 	or 	desire 	to 	continue
doing 	the 	work 	for 	pay. 	Others 	may not 	seek 	a 	paid position
because 	they 	do 	not 	like 	to 	teach. 	Some 	may 	not 	get 	a 	paid
position 	because 	they 	were 	not 	that 	competent 	and 	the 	University
is 	unwilling 	to 	hire 	them. 	Others 	might 	not 	seek 	a 	paid 	position
because 	their 	schedule 	does 	not 	permit 	that 	great 	of 	a 	time
commitment, 	or 	because 	they 	have 	a 	better 	job 	or 	other 	means 	of
support.
OASIS 	tutors 	are 	typically 	recruited 	through 	letters 	to 	all
upper 	division 	students 	with 	a 	3.0 	GPA or 	above, 	or word 	of
mouth. 	Each program within 	OASIS 	does 	its 	own 	interviewing 	and
selecting 	of 	students 	for 	both 	the 	training 	course 	and 	for 	paid
positions. 	TAs 	are 	typically 	recruited 	by 	faculty 	through
announcements 	to 	classes 	at 	the 	end 	of 	each 	quarter, 	job 	postings
and word 	of 	mouth.
Staffing within 	OASIS 	depends 	on 	the 	funding 	it 	receives 	and
the 	usage 	of 	each program by 	the 	general 	student 	population.
Staffing 	levels 	of 	TAs, 	are 	enrollment 	driven, 	just 	like 	readers.
In 	order 	to 	be 	hired 	into 	a 	paid 	tutor/TA position,
students 	typically must 	have 	completed a 	training 	course 	for
34

credit, 	have 	an 	overall 	GPA of 	3.0 	or 	better, 	and 	have 	taken 	and
received 	an A in 	the 	course 	or 	subject 	for 	which 	they 	will 	be
hired. 	These 	same 	criteria 	do 	not 	apply 	to 	non-students 	who
appear 	to 	be 	hired 	based upon 	availability 	and 	skill 	level.
Tutors/TAs 	expressed a 	broad 	range 	of 	career 	goals,
educational 	objectives 	for 	their 	time 	at 	UCSD, 	and motives 	for
seeking 	a 	tutor/TA position. 	Because 	they 	are 	primarily
undergraduates, 	their 	goals 	and 	objectives 	are, 	as 	a 	group,
somewhat 	unsettled. 	Many 	express 	the 	desire 	to 	go 	on 	to 	graduate
school 	or 	into 	the 	professions 	of 	medicine 	and 	law. 	Some 	want 	to
become 	researchers 	in 	industry. 	A few 	were 	interested 	in
academia. 	Typically, 	their 	specific 	educational 	objectives 	while
at 	UCSD 	are 	to 	successfully complete 	their 	program 	and 	obtain 	a
degree, 	and 	in 	doing 	so, 	be 	well 	credentialed 	for 	their 	next
step, 	be 	that 	graduate 	school 	or 	the 	work 	force. 	In 	this 	regard,
they 	are 	similar 	to 	readers.
Their 	specific 	motivations 	for 	seeking 	employment 	as
tutor/TAs 	were 	much 	broader 	than 	those 	of 	readers. 	While
generating 	income 	was 	a 	common 	theme, 	it 	was 	not 	as 	universal 	a
primary motive 	as 	it 	was 	for 	readers. 	Several 	tutors/TAs
expressed 	the 	desire 	to 	explore 	teaching 	as 	a 	profession 	or 	to
gain 	teaching 	skills 	to 	use 	in 	other 	professions. 	For 	example,
Roger 	Long, 	who 	hopes 	to 	become 	a 	medical 	doctor, 	was 	seeking 	to
gain 	teaching 	skills 	order 	to 	improve 	his 	effectiveness
educating 	future 	patients. 	Thomas 	Diller's 	long 	term 	goals 	were
to 	conduct 	research 	in 	the 	field 	of 	chemistry, 	but 	he 	had 	enjoyed
35

some 	teaching 	in 	the 	Navy. 	He 	was 	hoping 	his 	experience 	as 	a 	TA
might 	help 	him 	narrow 	his 	career 	goals. 	Others 	have 	been
motivated 	by a 	specific 	desire 	to 	work 	with 	certain professors,
either 	to 	gain 	specific 	knowledge 	from 	them 	or 	to 	increase 	their
chances 	of 	obtaining 	a 	good 	letter 	of 	recommendation 	for 	graduate
schools.
Experience 	as 	a 	tutor/TA 	is 	a 	mark 	of 	distinction 	well
thought 	of 	by 	those 	reviewing 	graduate 	school 	admissions.
Working 	as 	a 	tutor 	is 	a 	successful 	way 	of 	meeting 	faculty,
building 	credentials 	for 	a 	resume 	and 	detaining 	better 	letters 	of
recommendation. 	Faculty 	typically 	spend more 	time 	with 	TAs 	than
they 	do 	with 	readers. 	They 	get 	to 	know 	them personally 	and
faculty 	are 	better 	able 	to 	assess 	their 	skills 	for 	letters 	of
recommendation. 	TAs 	have 	the 	opportunity not 	only 	to 	stand 	out
academically, 	but 	they 	are 	also 	given 	the 	opportunity 	to
demonstrate 	leadership 	ability 	and 	teaching 	skills. 	This
additional 	information 	provides 	faculty 	members 	with 	a 	method 	of
distinguishing 	the 	TA 	from 	the 	mass 	of 	other 	students 	in 	contact
with 	the 	faculty 	member.
With 	an 	undergraduate 	student 	body 	so 	interested 	in 	going 	on
to 	professional 	or 	graduate 	schools, 	distinguishing 	letters 	of
recommendation 	are 	valuable 	currency. 	Professor 	Saltman writes
approximately 	200 	per year 	and 	states 	that 	he 	can 	write 	better
letters 	for 	his 	TAs 	than 	regular 	students 	in 	s 	classes.
Cecilia 	Ubilla 	also 	commonly writes 	many 	letters 	of
recommendation 	for 	the 	tutors 	she 	supervises 	at 	OASIS. 	She 	makes
36

it 	clear, 	however, 	that 	the 	tutors 	come 	to 	her 	for 	letters 	when
they 	need 	a 	letter 	of 	recommendation 	from 	their 	employer 	and 	not
just 	from 	a 	faculty 	member.
Another 	significant 	reason 	for 	seeking 	a 	tutor/TA position
was 	to 	gain 	mastery of 	the 	particular 	subject 	matter, 	either 	to
prepare 	for 	exams, 	or 	to 	gain 	breadth 	and 	depth 	of 	knowledge. 	It
seems 	to 	be 	almost 	universally 	accepted 	that 	one 	of 	the 	best 	ways
to 	learn 	material 	is 	to 	have 	to 	teach 	it 	to 	others. 	The 	proverb,
''to 	teach 	is 	to 	learn," 	was 	often 	quoted 	by witnesses. 	As
Professor 	Saltman put 	it, 	the 	fear 	of 	being 	humiliated 	and
looking 	stupid 	in 	front 	of 	a 	class 	of 	students 	is 	remarkable
motivation 	to 	learn 	the 	material 	well.
I 	therefore 	find 	that 	individuals 	seeking 	to 	be 	tutors/TAs
are 	motivated 	by 	several 	factors: 	paid 	employment 	to 	support
themselves, 	an 	opportunity 	to 	teach, 	an 	opportunity 	to 	work 	with
particular 	faculty, 	mastering particular 	subject 	areas 	and
improving 	credentials 	for 	graduate 	school.
As 	with 	readers, 	there 	are 	different 	pay 	rates 	for 	graduate
and 	undergraduate 	tutor/TAs. 12 	Both 	graduate 	and 	undergraduate
rates 	are 	separated 	into 	group 	sessions 	and 	individual 	sessions.
Graduate 	students 	are 	paid 	$11.37 	per 	hour 	for 	tutoring 	sessions
with 	individual 	students 	and 	$13.66 	per 	hour 	for 	group 	tutoring
sessions. 	Undergraduates 	receive 	$8.75 	per 	hour 	for 	individual
uThere 	is 	also 	an 	additional 	rate 	offered 	to 	post 	doctoral
tutors 	employed by 	the 	UCSD 	medical 	school 	for 	tutoring 	medical
students. 	Individuals 	employed 	in 	that 	position 	are 	not 	included
in 	the 	requested 	unit 	and 	are 	not 	relevant 	to 	this 	hearing.
37

sessions 	and 	$10.49 	for 	group 	sessions. 	The 	group 	session 	rate
is 	used when 	the 	tutor 	works 	with 	three 	or more 	students 	in 	a
session. 	The 	difference 	in 	pay 	reflects 	the 	additional 	expertise
of 	graduate 	students 	and 	the 	additional 	effort 	required 	by 	group
sessions. 	Pay 	is 	not 	based upon 	the 	financial 	need 	of 	the
tutor/TA.
In 	the 	OASIS 	program, 	tutors 	are 	paid 	for 	hours 	worked. 	In
some 	departments, 	tutors/TAs 	are 	paid 	a 	set 	amount 	based upon 	the
hourly 	rate 	as 	a 	percentage 	of 	a 	full-time 	position.
Graduate 	students 	serving 	as 	tutors 	are 	eligible 	for 	two
additional 	benefits 	if 	they 	are 	appointed 	25 	percent 	or more 	of 	a
full-time 	position. 	The 	first 	is 	GSHIP 	health 	insurance. 	The
second 	is 	registration 	and 	educational 	fee 	remissions.
Undergraduates 	and 	non-student 	tutor/TAs 	do 	not 	receive 	benefits.
They 	are 	responsible 	for 	their 	own 	health 	insurance.and
registration 	and 	educational 	fees.
As 	with 	readers, 	tutors/TAs 	are 	urged 	not 	to 	over-commit
their 	time. 	Thus, 	most 	conflicts 	between 	job 	duties 	and 	the
students' 	own 	academic 	program 	are 	avoided. 	Tutors 	in 	the 	OASIS
program have 	more 	flexibility 	with 	their 	hours 	and 	therefore 	are
better 	able 	to 	avoid 	conflicts 	with 	their 	own 	studies 	than 	TAs.
Once 	TAs 	accept 	their 	position, 	however, 	they 	have 	committed 	to 	a
rigorous 	schedule 	of 	section meetings, 	office 	hours 	and
preparation 	time. 	When 	conflicts 	do 	occur between 	their
employment 	commitments 	and 	their 	own 	academic 	program, 	I 	find
38

that 	TAs 	will 	maintain 	their 	TA obligations 	at 	the 	expense 	of
their 	own 	coursework.
When 	either 	employment 	or 	academic 	disputes 	arise, 	they 	are
handled 	in 	the 	same 	manner 	as 	with 	readers. 	The 	vast 	majority
are 	handled 	informally between 	tutor/TAs 	and 	their 	supervisor 	or
faculty 	member. 	Assistance 	in 	resolving 	such 	disputes 	is
available 	from 	a 	number 	of 	sources. 	Provosts, 	deans, 	advisers,
and 	departmental 	staff 	all 	appear 	to 	be 	very willing 	to 	assist
conflicted 	individuals 	in 	resolving 	their 	disputes. 	At 	these
initial 	informal 	stages, 	disputes 	of 	both 	employment 	and 	academic
issues 	are 	treated 	identically.
If 	disputes 	are 	not 	resolved 	informally 	at 	these 	initial
levels, 	then 	more 	formal 	avenues 	are 	available. 	If 	the 	dispute
is 	employment 	related, 	the 	tutor/TAs 	may 	utilize 	the 	grievance
procedure 	outlined 	in APM 	140 	and 	PPM 	230-5. 	If 	the 	dispute 	is
academic 	in 	nature, 	the 	process 	varies 	depending 	upon 	the
department 	or 	college 	where 	the 	dispute 	arises.
Non-students 	are 	employed when 	students 	are 	not 	available 	to
fill 	open 	positions. 	The 	hiring 	preferences 	for 	tutor/TAs 	are
the 	same 	as 	readers, 	i.e., 	graduate 	students 	are 	given 	first
preference, 	then 	undergraduate 	students, 	then 	non-students. 	A
significantly greater 	number 	of 	non-student 	tutor/TAs 	are 	hired
compared 	to 	non-student 	readers. 	For 	example, 	from 	fall 	1993
through 	fall 	1995 	almost 	as 	many 	non-students 	were 	hired 	(173) 	as
graduate 	students 	(203). 	During 	that 	same 	period, 	there 	were 	879
undergraduates 	in 	the 	tutor/TA position. 	Student 	employee
39

tutor/TAs 	and 	non-students 	are 	placed 	in 	different 	title 	codes
due 	to 	IRS 	administrative 	regulations.
As 	with 	readers, 	there 	is 	ample 	evidence 	that 	UCSD 	could 	not
fulfill 	its 	teaching mission 	without 	the 	use 	of 	undergraduate
tutor/TAs. 	Numerous 	University witnesses 	testified 	that
undergraduate 	TAs 	were 	essential. 	Professor Weinhausen 	testified
that 	UCSD 	had 	to 	rely 	on 	undergraduate 	TAs 	because 	of 	a 	40
percent 	growth 	in 	the 	number 	of 	biology majors 	over 	the 	last 	4
years. 	Provost 	Bond 	echoed 	the 	testimony 	that 	there 	just 	were
not 	enough graduate 	students 	to 	fill 	the 	TA needs 	and
undergraduates 	must 	be 	used. 	Professor 	Saltman was 	clear 	that 	he
would 	not 	have 	been 	able 	to 	teach 	his 	courses 	without 	the
assistance 	of 	undergraduate 	TAs. 	Provost 	Wulbert 	not 	only
testified 	that 	they were 	essential, 	but 	also 	that 	there 	was 	a
great 	financial 	advantage 	to 	the 	University 	in 	hiring 	them.
Oh, 	the 	undergraduate 	TAs 	are 	cheaper. 	We
hire 	them 	- 	- 	they 	cost 	less. 	There 	have
been 	enormous 	budget 	cutbacks 	That's 	an
issue. 	We're 	looking 	at 	costs 	more 	now 	than
we 	ever 	did 	before.
Even 	as 	far 	back 	as 	the 	1970s, 	University officials 	realized
the 	essential 	nature 	of 	using 	tutor/TAs. 	In 	a 	memo 	from
Assistant 	Dean 	of 	Graduate 	Studies 	Jean 	Fort 	to 	Vice 	Chancellor
Javet, 	Fort 	acknowledged 	that 	the 	inability 	to 	use 	undergraduate
TAs 	"would, 	of 	course, 	have 	a 	severe 	impact 	on 	lower 	division
teaching 	at 	UCSD."
A few 	University 	witnesses 	testified 	that 	it 	might 	be
possible 	to 	do 	just 	as 	effective 	a 	job 	using 	all 	non-student
40

tutor/TA positions, 	but 	that 	was 	contradicted by 	several 	other
University witnesses. 13 	For 	example, 	Cecilia 	Ubilla, 	Coordinator
of 	the 	Language 	Program 	at 	OASIS, 	testified 	that 	while 	she 	could
hire 	many 	French 	speaking 	individuals 	from 	the 	La 	Jolla
community, 	they 	are 	not 	trained 	in 	the 	dynamics 	of 	academic
programs, 	and would 	therefore 	never 	acquire 	the 	caliber 	she
requires. 	Several 	other witnesses, 	Saltman, 	Fort, 	and 	Bond, 	among
others, 	also 	testified 	about 	the 	unique 	benefits 	of
undergraduates 	being 	taught 	by 	peers. 	TAs 	have 	recently 	taken
the 	same 	course 	and 	received 	an A in 	the 	course. 	Undergraduate
TAs 	also 	share 	many 	other 	common 	University 	experiences 	which 	can
assist 	communications. 	Most 	witnesses 	testifying 	on 	this 	subject
indicated a 	belief 	that 	a 	collaborative 	learning 	environment
involving peers 	as 	teachers 	was 	much more 	effective 	than 	other
available 	alternatives.
Most 	graduate 	tutors 	are 	funded 	through 	the 	Graduate
Enrichment 	Program 	(GEP). 	The 	GEP 	is 	a 	small 	program
administered 	within 	the 	Office 	of 	Graduate 	Studies 	and 	Research
(OSGR). 	The 	primary purpose 	of 	the 	program 	is 	to 	fund 	''academic
enrichment" 	projects 	for 	graduate 	students 	throughout 	UCSD.
Departments 	submit 	project 	proposals 	to 	OSGR, 	which 	in 	turn
determines 	the 	funding 	level 	of 	the 	grant 	it 	will 	provide. 	A
typical 	grant 	would 	be 	approximately 	$800. 	Although most 	of 	the
13While 	some 	witnesses 	suggested 	it 	might 	be 	possible 	to
utilize 	all 	non-students 	to 	perform 	tutor/TA 	functions, 	not 	a
single 	witness 	suggested 	the 	University 	could 	eliminate 	the
duties 	they perform without 	doing 	irreparable 	damage 	to 	the
instructional 	program.
41

funds expended have gone to graduate student salaries, program
guidelines specify that the primary purpose of the program is to
provide academic enrichment to students, not financial support.
A few examples of proposals that were funded were a visiting
scholars program where graduate students were polled as to whom
they would like to invite for a seminar series. Another was a
symposium where graduate students were provided the opportunity
to present their research to both faculty and peers. Another was
a series of faculty student seminars where faculty would discuss
their current research efforts. Another supported a film series
followed by faculty student discussion groups. One supported an
all-day conference on Cuba held in the Latin American Studies
Complex. Some supported social events involving faculty and
students. In the literature department, funds supported informal
discussion groups between faculty and students where faculty
presented their works in progress. Some grants funded tutoring
projects aimed at helping specific students prepare for
departmental exams or increase language proficiency in order to
speed up progress on the research for their dissertations.
It appears that a significant portion of the funding went to
graduate students' salaries in the tutor title for their time
spent coordinating these various programs.
Associates
Associates are graduate students hired to teach a course.
They are utilized in two primary ways. The largest number of
associates are employed in the Music Department where they give
42

individual 	or 	group 	lessons 	as 	a 	course 	entitled Music 	32. 	Other
associates 	are 	employed by various 	departments, 	and 	have 	complete
autonomy 	for 	teaching 	a 	course. 	Associates 	typically 	have
advanced 	to 	candidacy and 	have 	full 	responsibility 	over 	the
course 	they 	teach. 	When 	teaching 	a 	course, 	their
responsibilities 	include, 	but 	are 	not 	limited 	to, 	selection 	of
textbooks 	and 	reading 	lists, 	preparation 	and 	delivery 	of
lectures, 	holding 	office 	hours, 	design 	of 	all 	course 	assignments,
mid-term 	and 	final 	exams 	and 	determination 	of 	grades. 	These
duties 	are 	identical 	to 	those 	of 	regular 	faculty 	when 	teaching 	a
course.
According 	to 	Dean Attiyeh, 	associates 	are:
[V]ery near 	completion 	of 	their 	degree
and 	are 	virtually 	qualified 	to 	accept 	a
regular 	faculty 	appointment 	anywhere, 	so 	they
are 	someone 	who 	is 	quite 	far 	along 	in 	their
professional 	training. 	They 	are 	also 	someone
who 	has 	had 	teaching 	experience 	before.
and we 	have 	pretty much 	restricted 	it 	to
people 	who 	have 	clearly 	demonstrated 	that
they 	are 	highly 	qualified 	to 	carry 	out 	this
institutional 	responsibility.
Provost 	Wulbert 	echoed Attiyeh's 	views 	stating 	that 	associates
are 	"the 	people 	we 	think 	absolutely 	can 	do 	the 	best 	teaching 	job
that 	we 	have 	available 	there."
Associates 	receive 	little, 	if 	any, 	supervision 	of 	their
work. 	If 	they 	ask 	for 	assistance 	and 	feedback 	from 	more 	senior
faculty, 	they 	are, 	however, 	able 	to 	get 	help. 	The 	amount 	of
guidance 	received 	seems 	to 	be 	directly 	related 	to 	whether 	or 	not
it 	is 	requested. 	Thus, 	while 	there 	is 	no 	requirement 	for 	any
supervision 	and most 	associates 	receive 	very 	little, 	the
43

opportunity does 	exist. 	Similar 	opportunities 	for 	help 	are
available 	for 	new 	faculty. 	Provost 	Wulbert 	has 	on 	six 	to 	ten
times 	sat 	in 	on 	lectures 	of 	new 	faculty 	and 	given 	them 	feedback
on 	their 	teaching 	skills. 	Wulbert 	testified, 	however, 	that 	he
gives 	more 	attention 	to 	associates 	than 	he 	would 	a 	new 	instructor
corning 	on 	staff. 	Last 	year, 	he 	sat 	in 	on 	the 	class 	of 	an
associate 	several 	times 	and 	reviewed 	all 	the 	associate's 	exams
and 	homework 	assignments.
The 	actual 	work 	performed by 	associates 	is 	indistinguishable
from 	that 	of 	lecturers 	or 	other 	faculty. 	During 	the 	development
of 	the 	position 	in 	the 	1960s, 	both non-student 	lecturers 	and
student 	employees 	doing 	the 	work 	currently performed by
associates 	were 	placed 	in 	the 	title 	of 	acting 	instructor. 	When
the 	lecturers 	unit 	was 	created 	(Unit 	18) 	that 	title 	was 	abandoned
throughout 	the 	UC 	system. 	All 	non-students 	were 	placed 	in 	the
lecturer 	position, 	and 	at 	least 	at 	UCSD, 	student 	employees
teaching 	a 	course 	were 	placed 	in 	the 	associate 	position. 14
Gary Gillespie 	has 	been 	in 	the 	unique 	position 	of 	being 	both
an 	associate 	and 	a 	lecturer 	at 	UCSD. 	Gillespie 	testified:
There 	was 	no 	difference 	to 	me 	in 	being 	an
Associate 	or 	a 	Lecturer. 	I 	had 	complete
freedom 	to 	do 	what 	I 	wanted 	to 	do. 	. 	I
designed 	the 	whole 	course 	myself. 	. 	My 	job
was 	to 	keep 	the 	students 	happy 	and 	I 	needed
to 	prepare 	them 	for 	the 	following 	courses, 	so
uone 	associate 	testified 	that 	he 	was 	told 	he 	could 	not 	be
hired 	as 	an 	associate 	as 	long 	as 	he 	was 	a 	registered 	student.
According 	to 	that 	witness, 	he 	therefore 	did 	not 	register 	that
quarter. 	I 	believe 	this 	testimony was 	either mistaken 	or 	the
situation was 	an 	aberration. 	All 	other 	testimony 	clearly
supports 	a 	finding 	that 	associates 	must 	be 	registered 	students.
44

they 	needed 	to 	basically meet 	the
prerequisite 	and 	they 	had 	to 	be 	happy. 	They
didn't 	want 	students 	complaining 	about 	this
or 	that, 	so 	under 	those 	guidelines, 	I 	was
able 	to, 	you 	know, 	create 	the 	whole 	course
myself.
Question: 	As 	a 	lecturer?
Answer: 	As 	a 	lecturer, 	as 	an 	associate 	in 	the 	summer
and 	then 	as 	a 	lecturer 	in 	the 	Fall.
When 	asked 	whether 	there 	were 	any 	differences 	between
associates 	and 	lecturers, 	Professor Williams 	responded:
Yes. 	The 	lecturer 	position 	requires 	a 	Ph.D,
I 	believe, 	and 	so 	associates 	are 	graduate
students 	who 	do 	not 	yet 	have 	Ph.Ds.
Associates 	appear 	in 	the 	course 	catalogs 	in 	a 	matter
indistinguishable 	from 	other 	faculty. 	Students 	receive 	the 	same
credit 	for 	courses 	taught 	by 	associates 	and 	faculty.
The 	largest 	employer 	of 	associates 	is 	the 	Music 	Department
where 	associates 	teach Music 	32. 	From 	fall 	1993 	through 	fall
1994, 	the 	Music 	Department 	employed 	34 	associates. 	During 	that
same 	period, 	only 	six 	other 	departments 	employed more 	than 	one
associate 	(political 	science 	and 	theater 	employed 	two, 	literature
three, 	math 	four, 	philosophy 	six 	and 	sociology 	seven.)
All 	associates 	in 	the 	Music 	Department 	have 	expertise 	on 	the
instruments 	they 	are 	teaching 	and 	most, 	if 	not 	1, 	appear 	to
have 	extensive 	teaching 	experience. 	For 	example, 	Patty Cudd 	had
her 	own 	private 	students 	for 	the 	past 	12 	years. 	According 	to
Cudd, 	the 	teaching was 	very 	s 	lar. 	David 	Savage 	had 	more 	than
20 	years 	of 	teaching 	experience 	with 	private 	clients 	prior 	to
teaching Music 	32. 	He 	has 	continued 	his 	private 	teaching
45

practice 	while 	also 	teaching Music 	32. 	He 	does 	not 	distinguish
between Music 	32 	or 	private 	students. 	He 	uses 	the 	same 	teaching
techniques 	for 	both. 	Even 	on 	his 	job 	applications, 	he 	lists
teaching, 	but 	does 	not 	distinguish 	between 	private 	students 	and
UCSD 	students.
Although 	there 	are 	many 	associates 	in 	the 	Music 	Department
who 	seek 	careers 	as 	performing musicians, 	most 	associates 	have 	as
a 	career 	goal 	to 	become 	teachers, 	preferably 	in 	higher 	education.
To 	that 	end, 	their 	educational 	objectives 	are 	to 	obtain 	a 	degree
and 	be 	well 	credentialed 	for 	the 	job market, 	with 	both marketable
skills 	and 	an 	impressive 	curriculum vitae. 	Employment 	as 	an
associate 	can provide 	individuals 	with 	both 	experience 	and
credentials. 	While 	some 	individuals 	have 	other 	higher 	education
teaching 	experience, 	such 	as 	in 	local 	community 	colleges 	or 	at
San 	Diego 	State 	University, 	for 	some 	associates 	it 	is 	the 	most
significant 	teaching 	responsibility 	they 	have 	had 	to 	date.
Selection 	as 	an 	associate 	is 	a 	recognition 	of 	a 	certain 	skill
level 	that 	may be 	important 	to 	future 	employers. 	Employment 	as
an 	associate 	also 	provides 	income 	for 	the 	associate.
I 	therefore 	find 	that 	associates 	are 	motivated 	to 	take 	the
associate 	job 	for 	three 	main 	reasons; 	to 	build 	their 	teaching
skills 	and 	gain 	teaching 	experience, 	to 	add 	teaching 	experience
to 	their 	curriculum vitaes, 	and 	to 	generate 	income.
The 	number 	of 	potential 	associate 	positions 	is 	determined 	by
undergraduate 	enrollment 	and 	availability of 	faculty. 	Lea
Hubbard was 	selected 	as 	an 	associate 	when 	the 	professor 	scheduled
46

to 	teach 	the 	course 	left 	for 	a 	post 	doctoral 	position. 	Hubbard
was 	a 	logical 	choice 	because 	the 	course 	material 	was 	related 	to
her 	dissertation 	subject, 	and 	she 	knew 	the 	material. 	When 	Gary
Gillespie 	first 	interviewed, 	it 	was 	for 	a 	lecturer 	position 	upon
the 	retirement 	of 	a 	lecturer. 	Because 	he 	was 	a 	graduate 	student
at 	UCSD, 	the 	department 	told 	him 	he 	would 	have 	to 	be 	hired 	as 	an
associate, 	rather 	than 	a 	lecturer. 	Laura 	Miller 	took 	her 	job 	as
an 	associate 	because 	the 	chair 	asked 	her 	to 	teach 	the 	course.
John 	Putman was 	asked 	to 	be 	an 	associate 	when 	the 	professor
teaching 	the 	course 	had 	dropped 	out 	at 	the 	beginning 	of 	the
quarter. 	The 	chair 	asked 	him 	to 	take 	over 	the 	class 	due 	to 	his
expertise 	with 	the 	material.
In 	the 	Music 	Department, 	assignments 	are 	made 	in 	order 	to
fulfill 	the 	need 	to 	teach 	undergraduates 	certain 	instruments.
Selection 	is 	also 	somewhat 	influenced by 	a 	faculty 	ranking 	of
graduate 	students 	based 	upon 	factors 	such 	as 	grade 	point 	average,
activity within 	the 	department, 	completion 	of 	certain 	classes,
etc.
Associates 	receive 	the 	same 	course 	evaluation by 	the
students 	as 	do 	all 	other 	faculty. 	They do 	not 	receive 	any 	other
formal 	evaluations 	by 	any 	supervisor.
Of 	the 	many 	associates 	who 	testified, 	only one 	mentioned 	she
was 	assisted 	as 	an 	associate 	by 	a 	mentor 	relationship. 	Lea
Hubbard 	testified 	that 	she 	considered 	several 	members 	of 	her
dissertation 	committee 	to 	be 	mentors. 	When 	she 	was 	offered 	a 	job
as 	an 	associate, 	she 	went 	to 	several 	of 	them 	and 	asked 	for 	help.
47

They 	responded with 	incredible 	support 	according 	to 	Hubbard.
Hubbard 	indicated 	that 	the 	same 	individuals 	were 	also 	very
helpful 	to 	her 	in 	her 	teaching 	at 	a 	local 	community 	college.
The 	only other 	associate 	testifying 	about 	a 	mentor
relationship 	was 	David 	Savage. 	Savage 	had 	three 	teachers 	he
would 	consider mentors 	and 	none 	of 	them were 	associated 	with
UCSD. 	Two 	of 	them were 	in 	Los 	Angeles 	and 	one 	of 	them was 	in
Mexico. 	He 	sought 	them 	out 	as 	teachers, 	traveled 	to 	them,
studied with 	them 	and 	developed 	his 	pedagogy 	based upon 	their
teaching.
Most 	associates 	indicated 	that 	the 	teaching 	experience 	was
very valuable 	for 	them. 	Patty 	Cudd 	testified 	that 	teaching
percussion 	helped 	her 	in 	her 	own 	performance 	because 	she 	had 	to
think 	about 	things 	about 	why 	she 	moved 	her 	hands 	in 	the 	way 	she
does. 	Hubbard 	testified 	that 	she 	learned 	a 	great 	deal 	about 	how
to 	teach, 	improved 	her 	credentials 	on 	her 	resume, 	learned 	the
material 	better, 	and made 	some 	money. 	Hubbard 	did 	not
distinguish 	her 	teaching 	at 	the 	community 	college 	from 	her
teaching 	at 	UCSD. 	She 	prepared 	the 	same 	for 	both 	classes. 	John
Putman 	said 	that 	any 	experience 	in 	front 	of 	students 	is 	helpful,
but 	he 	would 	not 	distinguish 	between 	s 	experience 	as 	an
associate 	from 	his 	experience 	as 	a 	faculty 	member 	at 	San 	Diego
State 	University 	or 	local 	community 	colleges. 	David Savage
testified 	in 	as 	lar 	manner. 	He 	felt 	he 	learned 	from 	teaching
all 	of 	his 	students, 	but 	made 	no 	distinction 	between 	his 	UCSD
music 	students 	and 	his 	private 	students.
48

A couple 	of 	associates 	also 	testified 	about 	a 	downside 	of
accepting 	an 	associate 	position. 	Both Miller 	and 	Putman
testified 	that 	working 	as 	an 	associate 	slowed progress 	on 	their
own 	dissertation 	research 	and writing. 	According 	to 	Putman, 	he
was 	too 	busy 	writing 	lectures, 	administering 	exams 	and 	grading
papers 	to 	do 	any 	significant 	writing 	of 	his 	own. 	According 	to
Miller, 	her 	first 	experience 	as 	an 	associate 	took 	up 	most 	of 	her
time. 	Although 	less 	time 	consuming 	the 	second 	time 	it 	still 	took
the 	majority 	of 	her 	time. 	Her 	time 	spent 	as 	an 	associate 	will
cause 	her 	to 	take 	longer 	to 	complete 	her 	dissertation.
In 	the 	Music 	Department, 	associates 	are 	paid 	3 	percent 	of 	an
FTE 	for 	each 	student 	they 	are 	assigned. 	Therefore, 	an 	associate
with 	three 	students 	would 	receive 	a 	9 	percent 	appointment. 	One
assigned 	six 	students 	would 	receive 	an 	18 	percent 	appointment.
This 	is 	the 	identical 	rate 	paid 	to 	non-student 	lecturers 	also
teaching Music 	32.
In 	departments 	other 	than 	music, 	an 	associate 	teaching 	a
course 	is 	considered a 	50 	percent 	appointment. 	The 	associate
would 	also 	receive 	GSHIP 	and 	fee 	remissions. 	If 	a 	lecturer 	were
hired 	to 	teach 	the 	same 	course, 	the 	lecturer would 	be 	hired 	at 	a
33 	percent 	appointment 	and would 	not 	receive 	any 	benefits.
Therefore, 	although 	a 	lecturer's 	pay 	is 	at 	a 	higher 	rate 	than
that 	of 	an 	associate, 	the 	cost 	to 	the 	University 	for 	hiring 	an
associate 	is 	greater 	than 	hiring 	a 	lecturer 	to 	teach 	an
individual 	course.
49

According 	to 	Provost 	Wulbert, 	if 	all 	the 	University 	cared
about 	was 	getting 	classes 	taught, 	it 	would probably be 	more
effective 	to 	use 	lecturers 	rather 	than 	associates. 	A large 	pool
of 	community 	college 	instructors 	known 	as 	"freeway 	flyers" 	would
offer 	undergraduate 	students 	consistency 	in 	teaching. 	According
to 	Wulbert, 	each 	new group 	of 	associates 	have 	to 	be 	trained 	and 	a
certain 	amount 	of 	mistakes 	occur 	each 	time. 	Those 	might 	be
avoided 	by 	using 	lecturers 	instead 	of 	associates.
Indicia 	of 	Student 	and 	Employee 	Status
Student 	employees 	in 	all 	the 	positions 	in 	dispute 	are
required 	to 	perform 	all 	the 	functions, 	fill 	out 	all 	the 	paperwork
and 	complete 	all 	the 	course 	requirements 	as 	all 	other 	students.
They 	also 	fill 	out 	employment 	forms, 	tax 	forms, 	timesheets, 	etc.,
like 	other 	employees.
Mentor 	Issues
Mentoring 	is 	a 	well 	recognized 	aspect 	of 	graduate 	education
programs 	in 	the 	United 	States. 	It 	generally 	reflects 	a
relationship 	that 	is 	significantly more 	important 	than 	simply
giving 	advice, 	answering 	questions 	or 	writing 	letters 	of
recommendation. 	In 	the 	context 	of 	this 	record, 	it 	denotes 	a
relationship 	where 	a 	faculty 	member 	will 	take 	a 	graduate 	student
or 	a 	junior 	colleague 	under 	his 	or 	her 	wing 	and 	offer 	intense
collegial 	advice 	about 	issues 	including, 	but 	not 	limited 	to, 	the
student's 	educational 	goals, 	research 	goals 	and methods, 	career
objectives 	and 	opportunities, 	and 	the 	student's 	mastery 	of
subject 	matters. 	Mentors 	will 	often 	go 	well 	beyond 	writing
50

letters 	of 	recommendation 	and will 	more 	actively 	help 	graduates
in 	their 	search 	for 	employment. 	Mentors 	often 	remain 	available
to 	the 	student 	for 	guidance 	long 	beyond 	the 	time 	period 	the 	two
individuals 	may be 	in 	a 	mentor 	student 	relationship.
Dean Attiyeh 	testified 	that 	UCSD 	has 	tried 	to 	create
numerous 	opportunities 	for 	developing 	undergraduate 	mentoring
relationships. 	For 	example, 	UCSD 	created 	freshman 	seminars 	where
a 	faculty 	member 	would give 	an 	informal 	seminar 	on 	some 	subject
of 	interest 	to 	the 	faculty 	member. 	An 	example 	might 	be 	a
professor 	of 	chemical 	engineering 	teaching 	a 	class 	on 	how 	a
refrigerator 	works, 	or 	a 	class 	regarding 	the 	faculty member 1 s
particular 	area 	of 	research. 	The 	objective 	is 	to 	create 	the
opportunity 	for 	closer 	student 	faculty 	ties 	of 	a 	more 	personal
nature 	than 	might 	ordinarily be 	available.
Vice 	Chancellor Watson 	testified 	about 	a 	special
undergraduate 	research program where 	faculty 	can 	identify
students 	whose 	research 	papers 	or 	course 	papers 	are 	particularly
good. 	Faculty can 	nominate 	the 	student 	to 	make 	presentations 	at
undergraduate 	research 	conferences, 	thus 	providing 	opportunities
for 	additional 	personal 	contact 	between 	faculty 	and 	student.
Audrey 	Littlefield, 	Assistant 	Dean 	for 	Graduate 	Studies 	and
Research, 	testified 	that 	some 	research 	fellowships 	actually
require 	that 	a 	mentor 	be 	appointed 	and 	provided 	to 	the 	student 	to
give 	guidance 	regarding 	research. 	Professor 	Saltman 	described 	a
sense 	of 	collegiality 	that 	develops 	between 	himself 	and 	the 	TAs
working 	for 	him.
51

Numerous 	University witnesses 	testified 	about 	the 	importance
of 	the 	mentor 	relationship 	for 	both graduate 	and 	undergraduate
students 	and 	their 	fear 	that 	the 	process 	would 	be 	undermined 	by
collective 	bargaining. 	Dean 	Duggan 	testified 	that 	mentor
relationships 	are 	primarily between 	Ph.D. 	candidates 	and 	their
dissertation 	committee 	members, 	although 	some 	mentoring 	can 	take
place 	within 	numerous 	other 	student 	faculty 	relationships. 	He
believes 	that 	a 	good mentoring 	relationship 	is 	the 	most 	important
factor 	to 	successful 	completion 	of 	a 	Ph.D. 	program. 	Duggan
believes 	that 	although 	not 	always 	the 	case, 	union 	representation
of 	student 	employees 	could 	endanger 	the 	mentor 	relationship. 	An
example 	he 	gave 	was 	when 	graduate 	students 	went 	out 	on 	strike 	in
support 	of 	the 	Association 	of 	Graduate 	Student 	Employees 	(AGSE)
seeking 	recognition 	at 	the 	Berkeley campus 	in 	1992. 	According 	to
Duggan, 	many 	faculty 	were 	very 	unhappy 	at 	having 	to 	take 	sides 	in
the 	dispute. 	Some 	supported 	recognition 	of 	the 	union 	and 	others
were 	against 	it. 	Some 	faculty 	were 	also 	quite 	upset 	at 	having 	to
teach 	sections 	that 	had 	usually been 	taught 	by 	student 	employees.
Duggan 	also 	believed 	it 	was 	equally 	true 	that 	many 	student
employees 	felt 	resentment 	towards 	faculty 	for 	not 	supporting 	the
strike. 	The 	bad 	feelings 	on 	both 	sides 	caused 	disillusionment
and 	strain 	on 	the 	faculty 	student 	relationship.
During 	the 	strike, 	Duggan, 	who 	was 	the 	University
spokesperson 	at 	the 	time, 	was 	on 	a 	dissertation 	committee 	of 	Andy
Kahl, 	an AGSE 	spokesperson. 	The 	strike 	created a 	strain 	in 	their
relationship. 	However, 	their 	relationship 	continued 	after 	the
52

strike 	and 	Duggan 	continued 	reading 	Kahl's 	dissertation 	chapters.
Duggan 	felt 	it 	was 	up 	to 	the 	two 	of 	them 	to 	work 	through 	the
strain 	created by 	the 	strike 	and 	that 	they were 	successful 	in
doing 	so.
Dr. 	Ellen 	Switkes 	testified 	that 	it 	is 	very 	likely 	that 	a
student's 	thesis 	adviser 	could 	also 	be 	that 	student's 	supervisor.
However, 	this 	is 	not 	supported 	by 	the 	record. 	Quite 	the 	opposite
is 	true. 	The 	record 	reflects 	that 	it 	is 	very 	rare 	that
individuals 	will 	be 	in 	both 	an 	employee-supervisor 	relationship
and 	a 	student-faculty mentor 	relationship 	at 	the 	same 	time.
According 	to 	Switkes, 	the 	mentor 	relationship 	could 	be 	disrupted
if 	faculty 	were 	limited 	in 	any way 	in 	their 	hiring 	preferences 	of
student 	academic 	employees. 	Switkes 	worries 	that 	collective
bargaining 	"could disrupt 	the 	fluidity 	of 	the 	student 	faculty
mentor 	relationship 	by 	hardening 	the 	ways 	in which 	students 	and
faculty 	work 	together."
Part-Time 	and 	Intermittent 	Employee 	Issues
University 	experts 	testified 	that 	in 	their 	opinion
representation 	of 	part-time 	or 	intermittent 	employees 	is
difficult 	due 	to 	turnover 	and 	lack 	of 	continuity. 	Union
witnesses, 	however, 	offered 	examples 	where 	part-time 	or
intermittent 	employees 	such 	as 	grocery 	clerks, 	have 	been
successfully 	represented 	by 	unions.
53

Grievance 	Issues
The 	vast 	majority of 	disputes 	involving 	student 	employees,
both 	employment 	related 	and 	academic 	related, 	are 	settled within
departments 	through 	informal 	discussions. 	Student 	employees 	and
faculty 	supervisors 	are 	encouraged 	to 	resolve 	matters 	at 	the
lowest 	possible 	level 	through 	collaborative 	and 	informal 	efforts.
Student 	employees 	may 	also 	enlist 	the 	advice 	and 	assistance 	of
their 	faculty 	advisers, 	department 	chairs, 	provosts, 	and 	deans,
if 	matters 	are 	not 	resolved 	between 	the 	student 	employee 	and 	the
faculty 	member 	or 	supervisor.
If 	employment 	related 	disputes 	are 	not 	resolved 	informally,
a 	grievance 	may 	be 	filed. 	The 	grievance 	process 	for 	employment
related grievances 	is 	set 	forth 	in 	the 	UCSD 	Policy 	and 	Procedure
Manual 	(PPM 	230-5) 	and 	is 	consistent 	with 	the 	University 1 s 	non
senate 	academic 	appointee 	grievance 	policy 	set 	forth 	in APM 	140.
Student 	academic 	appointees 	are 	eligible 	to
grieve 	a 	matter 	related 	to 	their 	assignments
in 	the 	Teaching Assistant, 	Research
Assistant, 	Reader 	and 	Tutor 	titles 	only.
Student 	complaints 	pertaining 	to 	matters 	of
academic 	standing 	or 	to 	non-academic 	matters
(e.g., 	discrimination) 	are 	handled 	through
applicable 	student 	grievance 	procedures.
The 	grievance 	procedure 	provides 	a 	multi-step 	process
starting 	with 	informal 	review 	and 	proceeding 	through 	a 	formal
hearing 	process. 	There 	are 	specific 	timelines 	applicable 	at 	each
step 	of 	the 	process.
If 	the 	grievance 	is 	not 	resolved 	informally 	at 	Step 	I 	within
30 	days, 	it 	can be 	appealed 	to 	Step 	II, 	where 	the 	grievance 	is
reviewed 	by 	the 	appropriate 	department 	head 	or 	dean, 	and 	a
54

written 	response 	is 	issued by 	the 	University. 	If 	the 	grievance
is 	not 	resolved 	at 	Step 	II, 	it 	may be 	appealed 	to 	either 	Step 	III
(administrative 	consideration) 	or 	Step 	IV 	(hearing 	consideration)
but 	not 	both. 	The 	Vice 	Chancellor, 	Academic 	Affairs 	determines
whether 	Step 	III 	or 	Step 	IV 	is 	the 	appropriate 	route 	for 	appeal.
At 	Step 	III 	(administrative 	appeal), 	the 	grievance 	is
reviewed 	by 	the 	chancellor's 	designee 	and 	a 	written 	decision 	is
issued.
If 	the 	subject 	of 	the 	grievance15 	is 	appropriate 	for 	Step
IV, 	the 	grievant 	may 	elect 	to 	have 	the 	grievance 	heard 	by 	either
a 	University 	hearing 	officer 	(appointed by 	the 	chancellor's
designee), 	a 	three-member 	University 	hearing 	committee 	(each 	side
selects 	one 	member 	and 	they, 	in 	turn, 	select 	a 	third), 	or 	a 	non
University 	hearing 	officer 	(selected by 	the 	parties 	off 	lists
provided by 	the 	American Arbitration Association).
Both 	the 	grievant 	and 	the 	University may 	be 	represented
throughout 	the 	process. 	A record 	of 	the 	hearing 	is 	either
transcribed or 	recorded. 	Both 	sides 	have 	the 	opportunity 	to 	call
and 	cross-examine 	witnesses 	and present 	documentary 	evidence. 	A
statement 	of 	findings 	and 	recommendations 	is 	issued 	by 	the
hearing 	officer 	or 	hearing 	committee 	and 	is 	forwarded 	to 	the
chancellor 	or 	chancellor's 	designee. 	The 	procedure 	limits 	the
~The 	following 	subjects 	are 	appropriate 	for 	a 	Step 	IV
hearing: 	Nondiscrimination, 	Layoff 	and 	Involuntary Reduction 	in
Time, 	Personnel 	Records/Privacy, 	Holidays,Vacation, 	Sick 	Leave
Corrective 	Action 	(Censure, 	Suspension, 	Demotion), 	Dismissal,
Reprisal, 	and 	Procedural 	Irregularity 	in 	the 	Personnel 	Review
Process.
55

authority of 	the 	hearing 	officer 	or 	committee 	from 	exercising
academic 	judgment. 	The 	chancellor may 	adopt, 	modify 	or 	reject 	the
findings 	and 	recommendations. 	However, 	if 	modified 	or 	rejected,
reasons 	must 	be 	given.
The 	process 	also 	specifically 	states 	that:
The 	use 	of 	this 	policy 	shall 	not 	be
discouraged 	by 	the 	University 	by 	any means,
either 	direct 	or 	indirect.
That 	admonition 	is 	not 	heeded 	in 	some 	cases, 	however, 	as
University 	witnesses 	testified 	that 	they 	actively 	steer 	students
away 	from 	using 	the 	grievance 	process 	and 	into 	the 	student's
academics 	appeals 	process. 	For 	example, 	Dr. 	Ellen 	Switkes
testified:
. 	students 	are 	not 	excluded 	from 	using
that 	process. 	In 	other words 	the 	process,
unlike 	some 	other 	policies 	in 	the 	APM, 	does
not 	say 	students 	may 	not 	use 	this 	policy.
However, 	my 	office 	has 	for 	many years 	and
continues 	to 	advise 	that 	we 	can't 	think 	of
any 	appeals 	or 	grievances 	that 	should be
allowed 	under 	that 	policy 	from 	student
employees. 	We 	advise 	that 	all 	student
grievances 	and 	appeals 	get 	handled 	through
the 	student 	appeals 	mechanism 	and 	not 	through
the 	employment 	appeals 	mechanism.
Switkes 	urges 	that 	such 	a 	grievance 	procedure 	not 	be 	used 	by
student 	employees 	because 	she 	fears 	that 	any process 	having 	the
potential 	to 	formally 	find 	a 	wrongdoing 	by a 	faculty 	member, 	or
one 	which 	could 	lead 	to 	an 	order 	against 	a 	faculty 	member, 	could
lead 	to 	retribution 	by 	that 	faculty 	member 	against 	the 	student
employee 	grievant. 	Thus, 	according 	to 	Switkes, 	even 	though 	the
faculty 	member may 	have 	been 	completely 	in 	the 	wrong 	and 	a
terrible 	grievance 	might 	be 	redressed, 	it 	could 	ultimately 	be
56

damaging 	to 	the 	student 	employee 	grievant 	because 	faculty
advisers 	and 	students 	are 	tied 	together 	for 	their 	professional
life, 	and 	professors 	can 	exercise 	great 	power 	over 	students.
Dr. 	Judith 	Craig, 	Associate 	Dean 	at 	the 	University of
Wisconsin-Madison, 	supported Switkes' 	testimony 	that 	any
grievance 	process 	for 	student 	employees 	is 	problematic 	because 	of
the 	potential 	of 	academic 	retaliation 	by 	faculty. 	Craig 	opposes
representation 	for 	student 	employees 	because 	she 	feels 	union
involvement 	creates 	a 	more 	adversarial 	relationship. 	Craig
testified 	as 	follows:
I 	think 	that 	it 	is 	much better, 	it's 	more
productive 	and 	it 	tends 	to 	resolve 	issues
better 	and 	faster 	if 	the 	union 	is 	not
involved. 	When 	the 	union 	is 	involved, 	I
think 	an 	adversarial 	tone 	comes 	into 	the
situation 	that 	is 	counter-productive.
Craig 	also 	fears 	that 	a 	grievance 	process 	is 	problematic
because 	arbitrators 	might 	involve 	themselves 	in 	academic 	issues
and 	faculty 	members 	might 	avoid 	taking 	action, 	which was
appropriate 	for 	them 	to 	take, 	simply 	out 	of 	fear 	that 	a 	grievance
might 	be 	filed.
Dean 	Littlefield 	also 	testified 	that 	allowing 	students 	to 	be
represented makes 	the 	process 	more 	formal 	and 	hampers 	the
parties' 	ability 	to 	settle 	a 	dispute 	in 	a 	collaborative 	manner.
Littlefield 	referred 	to 	two 	instances 	where 	students 	had been
accused 	of 	academic 	dishonesty. 	They both 	chose 	to 	be
represented 	and 	Littlefield 	felt, 	as 	a 	result, 	the 	process 	did
not 	work 	as 	well.
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The 	student 	brought 	in 	an 	attorney, 	and 	as
soon 	as 	that 	happened, 	the 	faculty 	and
department 	sort 	of 	backed 	away 	and 	decided
that 	they weren't 	that 	interested 	in
collaborating because 	the 	student 	was 	legally
represented 	in 	this 	endeavor.
These 	two 	cases 	were, 	however, 	the 	only 	two 	such 	cases
Littlefield 	had 	experienced 	since 	she 	came 	to 	UCSD 	in 	1979.
Although 	she 	has 	referred 	students 	to 	PPM 	230-5 	when 	they 	have
disputes 	regarding 	strictly 	employment 	matters, 	she 	has 	only
actually 	been 	involved 	in 	processing 	one 	or 	two 	grievances 	under
230-5 	during 	her 	tenure 	at 	UCSD. 	Littlefield 	has 	never 	been
involved 	in 	a 	grievance 	filed 	pursuant 	to 	a 	collective 	bargaining
agreement, 	and 	she 	acknowledges 	that 	the 	right 	to 	file 	a
grievance 	does 	not 	limit 	the 	parties' 	ability 	to 	settle 	the
dispute 	informally.
Littlefield's 	experience 	is 	that 	most 	often 	disputes
involving 	student 	employees 	are 	tied 	to 	academic 	issues.
According 	to 	Littlefield, 	while 	disputes 	rarely 	involve 	only
employment 	issues, 	there 	are 	cases, 	such 	as 	denial 	of 	sick 	leave
or 	assignment 	of 	too 	many 	hours, 	that 	do 	seem 	strictly employment
related.
The 	evidence 	regarding 	grievances 	at 	other 	universities 	has
been mixed. 	Union 	witnesses 	generally 	testified 	that 	grievance
procedures 	provide 	an 	effective 	mechanism 	for 	employees 	to
address 	concerns. 	Many 	said 	that 	such 	procedures 	tend 	to
depersonalize 	the 	issues 	raised, 	attacking 	problems 	and 	not
people. 	Practically every University witness 	who 	has 	been
involved 	in 	grievance 	processing 	convincingly 	disputed 	the 	idea
58

that 	a 	grievance 	process 	depersonalizes 	complaints 	raised 	by
student 	employees.
A number 	of 	witnesses 	testified 	about 	grievance 	experiences
at 	UC 	Berkeley. 	Dean 	Duggan 	does 	not 	believe 	that 	formal
procedures, 	regardless 	of 	the 	nature 	of 	the 	substantive 	issues,
tend 	to 	depersonalize 	conflicts. 	He 	believes 	that 	any 	time 	that
individuals 	are 	challenged, 	called on 	the 	carpet, 	or 	embarrassed,
they tend 	to 	get 	defensive. 	Duggan's 	experience 	at 	UC 	Berkeley
leads 	him 	to 	believe 	that 	union 	representation 	tends 	to 	make
students 	think 	of 	faculty 	as 	a 	monolithic 	institutional 	body
rather 	than 	as 	individuals. 	Duggan 	believes 	that 	conciliation 	is
more 	difficult 	because 	faculty 	see 	themselves 	being 	perceived 	by
students 	as 	members 	of 	a 	class, 	rather 	than 	individuals. 	This,
in 	turn, 	leads 	to 	faculty 	defensiveness. 	The 	same 	can be 	said 	of
other 	processes 	available 	to 	students 	however. 	In 	the 	graduate
student 	appeal 	process 	at 	UC 	Berkeley, 	where 	academic 	conflicts
may 	be 	raised, 	students 	have 	the 	right 	to 	a 	hearing 	and may 	be
represented. 	If 	the 	student 	is 	represented by a 	lawyer, 	then 	so
is 	the 	University, 	and 	the 	adversarial 	nature 	of 	the 	dispute 	is
often 	ratcheted 	up 	to 	another 	level.
Duggan 	also 	testified 	about 	two 	cases 	at 	UC 	Berkeley where
grievances 	were 	filed 	by 	student 	employees 	against 	their 	mentors.
In 	one 	case 	there 	was 	no 	erosion 	of 	the 	mentor 	relationship 	and
the 	second 	case, 	the 	personal 	relationship 	deteriorated.
Duggan 	clearly prefers 	to 	resolve 	the 	disputes 	before 	they
get 	to 	a 	formal 	appeals 	process, 	whether 	it 	is 	academic 	or
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employment 	related. 	Approximately 	80 	percent 	of 	the 	disputes
coming 	to 	Duggan 	are 	resolved 	informally. 	According 	to 	Duggan,
however, 	most 	cases 	that 	get 	to 	the 	actual 	formal 	appeals 	process
are 	cases 	that 	are 	just 	too 	difficult 	from 	the 	start 	to 	resolve
any 	other way.
Debra 	Harrington, 	Manager 	of 	Labor 	Relations 	at 	UC 	Berkeley,
testified 	that 	other 	processes, 	such 	as 	bringing 	disputes 	before
the 	graduate 	council 	in 	a 	manner 	similar 	to 	academic 	disputes
would be 	less 	confrontational 	because 	it 	is 	not 	a 	standard
evidentiary process 	and 	does 	not 	necessarily 	involve 	having 	a
faculty 	member 	come 	in 	and 	testify. 	Harrington 	believed 	such 	a
process 	would 	be 	more 	effective 	because 	it 	is 	difficult 	to
separate 	employment 	and 	academic 	issues 	and 	the 	graduate 	council
would 	have 	the 	ability 	to 	look 	at 	the 	total 	relationship.
Mary Ann 	Massenburg, 	International 	Representative 	with 	the
United Automobile, 	Aerospace 	and Agricultural 	Implement 	Workers
of 	America 	(UAW), 	testified 	that 	the 	University's 	concerns 	about
arbitrators 	intruding 	into 	academic 	judgments 	via 	the 	grievance
process 	can be 	dealt 	with 	in 	a 	manner 	similar 	to 	other
universities 	and 	other 	industries, 	where 	related 	issues 	have
arisen. 	Massenburg 	cited examples 	of 	the 	UAW 	representing
attorneys, 	where 	the 	parties 	have 	successfully 	dealt 	with
employer 	concerns 	about 	arbitrators 	making 	judgements 	regarding
legal 	expertise, 	or 	with writers 	where 	employers 	want 	to 	maintain
sole 	discretion 	over 	editorial 	content 	and 	competence 	matters, 	or
artists 	where 	the 	concern 	is 	over 	creative 	differences.
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Massenburg 	also 	testified 	that 	employment 	disputes 	over
payroll 	processing, 	workload, 	emergency 	loans, 	pay,
classification, 	termination, 	and 	layoff 	have 	been 	resolved
through 	the 	use 	of 	both 	informal 	and 	formal 	processes 	of 	APM 	140
without 	any 	adverse 	impact 	on 	student 	employees. 	In many
instances, 	the 	outcomes 	of 	the 	grievance 	process 	have 	been 	the
resolution 	of 	conflicted 	situations 	which 	have 	been 	acceptable 	to
both 	sides.
Dr. 	Steadman Upham, 	Dean 	of 	the 	Graduate 	School 	and Vice
Provost 	of 	the 	University 	of 	Oregon, 	testified 	that 	under 	current
leadership, 	they 	are 	experiencing 	relative 	labor 	peace. 	Their
labor management 	relationship, 	however, 	like 	any 	bargaining
relationship, 	evolves 	depending 	upon 	the 	leadership 	of 	both
parties; 	sometimes 	good, 	sometimes 	not 	so 	good. 	Dean Upham
expressed 	his 	concern 	that 	grievances 	are 	accelerated 	prior 	to
negotiations 	as 	a 	pressure 	tactic 	and 	that 	grievances 	have 	not
been 	settled 	at 	the 	lowest 	possible 	levels. 	He 	believes 	that 	the
union 	uses 	individual 	grievances 	as 	a 	possible 	way 	to 	build
solidarity 	for 	bargaining 	issues.
It 	is 	of 	great 	concern 	to 	Upham 	that 	an 	arbitrator 	might
assert 	binding 	authority 	over 	academic 	decisions. 	It 	appears
however, 	that 	the 	authority 	of 	arbitrators 	has 	not 	been 	that
great 	of 	a 	problem 	to 	date. 	No 	grievances 	have 	gone 	to
arbitration 	since 	Upham 	has 	been 	Dean. 	In 	the 	history 	of 	the
bargaining 	unit, 	only 	two 	grievances 	have 	ever 	gone 	to
arbitration; 	one 	on 	dues 	deductions 	which was 	decided 	in 	favor 	of
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the 	union 	and 	one 	on 	severance 	pay which was 	decided 	in 	favor 	the
University. 	Upham 	cited 	solutions 	reached 	through 	the 	grievance
process 	which 	were 	compromises 	designed 	to 	meet 	the 	key 	interests
of 	both 	parties. 	Upham 	also 	cited 	several 	grievances 	where 	the
University prevailed by 	simply maintaining 	its 	position 	that 	the
grievance 	involved 	rights 	reserved 	to 	the 	University.
Diane 	Rau, 	a 	union 	representative 	from 	the 	University 	of
Oregon, 	testified 	that 	grievances 	were 	often 	settled 	informally
at 	the 	lowest 	possible 	levels. 	She 	gave 	numerous 	specific
examples 	of 	employment 	related grievances 	being 	settled. 	Issues
such 	as 	personnel 	files, 	evaluation processes, 	assignment 	of 	pay
levels, 	payroll 	issues, 	work 	environm~nt, 	office 	equipment 	and
supplies, 	use 	of 	telephones, 	and 	safety 	issues 	were 	settled 	using
both 	informal 	and 	formal 	grievance 	processes 	within 	the
collective 	bargaining 	agreement. 	According 	to 	Rau, 	neither 	the
processes 	used, 	nor 	the 	outcomes, 	had 	any 	negative 	effect 	on 	unit
members' 	ability 	to 	operate 	freely 	within 	their 	academic
environment. 	She 	testified 	that 	most 	disputes 	are 	resolved
informally 	and 	typically 	very quickly. 	She 	may 	not 	even 	hear
about 	them when 	they 	are 	resolved. 	They 	are 	often 	legitimate
concerns 	which 	are 	addressed promptly, 	with 	no 	further 	action 	or
discussion.
Occasionally, 	however, 	grievances 	can 	damage 	the 	student
facul 	relationship. 	Dr. 	Paul 	Lehman, 	an Associate 	Dean 	at 	the
University of 	Michigan, 	gave 	an 	example 	where 	a 	student 	employee
felt 	that 	her 	grievance 	was 	against 	the 	University, 	a 	huge
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impersonal 	institution. 	When 	it 	came 	time 	to 	try 	to 	resolve 	the
grievance, 	however, 	it 	became 	clear 	that 	the 	grievance 	was 	aimed
at 	one 	particular 	faculty 	member, 	who 	happened 	to 	be 	a 	professor
within 	the 	grievant's 	major.
According 	to 	Lehman, 	the 	informal 	conversations 	at 	Step 	I 	of
the 	grievance 	procedure 	were 	perceived 	as 	a 	casual 	inquiry 	by 	the
professor 	rather 	than 	a 	grievance. 	When 	the 	professor 	received
the 	written 	grievance, 	the 	professor 	became 	"an emotional 	basket
case." 	Lehman 	assured 	the 	professor 	that 	the 	grievance 	was 	a
routine 	procedure 	that 	the 	student 	employee 	had 	a 	right 	to 	file
under 	the 	terms 	of 	the 	contract, 	and 	that 	the 	professor 	should
not 	take 	it 	personally. 	Nevertheless, 	the 	professor was 	in
Lehman's 	office 	several 	times 	in 	tears 	over 	the 	grievance.
Lehman 	had 	no 	knowledge 	about 	the 	state 	of 	the 	relationship
between 	the 	grievant 	and 	the 	professor 	prior 	to 	the 	grievance,
but 	after 	the 	grievance, 	it 	deteriorated 	rapidly 	to 	the 	point
where 	the 	student 	employee 	left 	the 	University 	of 	Michigan 	to
finish 	a 	degree 	program 	elsewhere.
Dr. 	Judith 	Craig, 	from 	the 	University of 	Wisconsin, 	believed
that 	contracts 	providing 	for 	grievance 	mechanisms 	escalated
issues 	to 	the 	highest 	levels 	very 	rapidly. 	Craig 	believed 	there
was 	very 	little 	effort 	made 	to 	resolve 	issues 	informally. 	She
also 	believed 	that 	the 	union 	would 	increase 	the 	number 	of
grievances 	order 	to 	build 	support 	for 	negotiations 	when
contracts 	were 	coming up 	for 	renewal.
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Dr. 	Alice 	Audie-Figueroa, 	Assistant 	Director 	of 	the 	Research
Department 	of 	the 	UAW, 	was 	formerly 	a 	job 	steward 	for 	the
Teaching Assistants 	Association 	at 	the 	University 	of 	Wisconsin,
Madison. 	While 	there, 	she 	processed 	a 	number 	of 	grievances 	and
found 	having 	a 	process 	for 	resolving 	disputes 	was 	helpful. 	In
contrast 	to 	the 	testimony of 	Dr. 	Craig, 	she 	also 	felt 	it 	was
helpful 	to 	grievants 	to 	be 	represented. 	Most 	of 	the 	grievances
she 	processed were 	resolved 	at 	the 	lowest 	levels 	within 	the
department. 	In 	a 	few 	cases 	regarding 	workload, 	the 	information
the 	parties 	had 	available 	was 	insufficient 	to 	make 	informed
decisions. 	The 	union 	and 	the 	University 	agreed 	that 	for 	the 	next
semester, 	TAs 	would 	keep 	careful 	logs 	of 	their 	assignments 	and
hours. 	The 	parties 	discovered 	there 	were 	clear 	inconsistencies
among 	faculty 	about 	expectations 	and 	responsibilities 	which 	led
to 	inconsistent 	assignments. 	These 	collaborative 	efforts 	helped
to 	resolve 	the 	dispute.
Nancy DeProsse 	was 	a 	UAW 	representative 	at 	the 	University 	of
Massachusetts 	at 	Amhurst. 	Both 	the 	university and 	the 	union
emphasize 	informal 	grievance 	resolution. 	During 	her 	tenure,
approximately 	30 	to 	40 	grievances 	covering 	a 	wide 	range 	of 	issues
have 	been 	resolved, 	almost 	all 	of 	them 	at 	the 	first 	informal
step. 	Only 	one 	or 	two 	have 	gone 	to 	Step 	II 	and 	only 	one 	has 	gone
to 	arbitration. 	Sometimes 	the 	parties 	will 	get 	the 	grievant 	and
the 	faculty 	member 	together 	to 	resolve 	the 	issue 	and 	sometimes
the 	parties 	will 	involve 	the 	department 	head. 	She 	testified 	that
the 	grievance 	process 	has 	not 	created 	any 	detrimental 	effect 	to
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the 	relationships 	between 	student 	employees 	and 	faculty 	members.
In 	only one 	instance 	were 	the 	parties 	unable 	to 	resolve 	a 	student
employee 	faculty 	conflict. 	In 	that 	case 	they were 	able 	to 	have
the 	student 	employee's 	job moved 	to 	another 	location with 	a
different 	faculty 	supervisor. 	The 	conflict 	between 	the 	student
employee 	and 	the 	original 	faculty 	member 	preceded 	the 	grievance
and 	the 	grievance 	process 	was 	able 	to 	deal 	with 	the 	conflict, 	not
exacerbate 	it.
Dr. 	Daniel 	Julius, 	Associate 	Vice 	President 	for 	Academic
Affairs 	and 	Director, 	National 	Center 	for 	Employment 	Studies 	at
the 	University 	of 	San 	Francisco, 	testified 	that 	grievances 	in 	a
collective 	bargaining 	setting 	can 	be 	particularly 	troublesome
because 	arbitrators 	may 	interfere 	with 	academic 	issues. 	Julius
believes 	it 	is 	likely 	that 	arbitrators 	may 	assert 	authority 	over
issues 	such 	as 	tenure 	decisions 	or 	the 	awarding 	of 	grades.
The 	following 	very 	briefly 	reflects 	some 	of 	the 	grievancee
processes 	included 	in 	other 	collective 	bargaining 	agreements
involving 	student 	employees, 	which were 	offered 	into 	evidence 	at
the 	hearing. 	They 	all 	are 	multi-step 	processes 	beginning with
some 	form 	of 	informal 	resolution 	discussion 	and 	culminating 	in
final 	and 	binding 	arbitration. 	Both parties 	have 	the 	right 	to 	be
represented 	at 	all 	stages 	of 	the 	process. 	A record 	is 	usually
made 	of 	the 	proceedings 	and 	parties 	are 	entitled 	to 	both 	call 	and
cross-examine 	witnesses 	as 	well 	as 	offer 	documentary 	evidence.
The 	collective 	bargaining 	agreement 	between 	the 	University
of 	Michigan 	and 	the 	Graduate 	Employees 	Organization, 	AFL-CIO
65

Local 	3550 	includes 	informal 	discussions 	at 	Step 	I 	and 	ends 	in
final 	and 	binding 	arbitration 	at 	Step 	IV.
At 	the 	University of 	Wisconsin, 	Milwaukee, 	the 	collective
bargaining 	agreement 	between 	the 	State 	of 	Wisconsin 	and 	the
Milwaukee 	Graduate 	Assistants 	Association 	provides 	a 	grievance
process 	beginning with 	informal 	discussions 	at 	Step 	I 	and 	ending
in 	final 	and 	binding 	arbitration 	at 	Step 	IV. 	Allegations 	of
retaliation 	based 	on 	the 	use 	of 	the 	grievance 	process 	are
specifically deferred 	to 	the 	Wisconsin 	Employment 	Relations
Commission. 	The 	termination 	of 	probationary employees 	is 	also
not 	subject 	to 	the 	grievance 	process. 	The 	parties 	have 	agreed 	to
meet 	whenever 	necessary 	outside 	the 	grievance 	and 	collective
bargaining procedures 	in 	order 	to 	share 	information 	and 	concerns,
and 	to 	resolve 	matters 	concerning 	the 	administration 	of 	the
contract.
At 	the 	University of 	Wisconsin, 	Madison, 	the 	collective
bargaining 	agreement 	between 	the 	State 	of 	Wisconsin 	and 	the
Teaching Assistants 	Association, 	is 	very 	similar 	to 	the
University 	of 	Wisconsin, 	Milwaukee 	collective 	bargaining
agreement, 	except 	that 	a 	grievance 	may 	be 	filed 	by 	either 	the
union 	or 	the 	employer. 	When 	the 	grievance 	is 	denied 	entirely,
the 	fees 	and 	expenses 	of 	the 	arbitrator 	are 	borne 	entirely 	by 	the
party 	initiating 	the 	grievance. 	When 	a 	partial 	decision 	is
issued, 	the 	arbitrator 	allocates 	expenses. 	At 	Madison, 	the 	union
management 	meetings 	are 	regularly 	scheduled 	each month 	in 	an
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effort 	to 	share 	information 	and 	concerns, 	and 	discuss
administration 	of 	the 	agreement.
The 	collective 	bargaining 	agreement 	between 	the 	State
University 	system 	of 	Florida 	and 	the 	Graduate 	Assistants 	United
(United 	Faculty of 	Florida) 	provides 	for 	informal 	discussions
prior 	to 	a 	grievance 	being 	filed 	and 	leads 	to 	final 	and 	binding
arbitration 	at 	Step 	IV. 	Arbitrators 	are 	specifically precluded
from 	reviewing 	supervisory 	exercises 	of 	discretion.
The 	collective 	bargaining 	agreement 	between 	the 	University
of 	Massachusetts 	at 	Amhurst 	and 	the 	Graduate 	Employee
Organization 	Local 	2322, 	UAW, 	includes 	a 	grievance 	procedure
starting with pre-grievance 	informal 	discussions 	and 	ending 	in
final 	and 	binding 	arbitration 	at 	Step 	III. 	It 	includes 	the
following 	limitations 	to 	the 	authority of 	the 	arbitrator:
Furthermore, 	the 	arbitrator 	shall 	be 	without
authority 	to 	consider 	or 	render 	decisions
concerning 	any 	academic 	matters 	or 	any 	aspect
of 	a 	GEO 	member's 	status 	as 	a 	student.
The 	Memorandum of 	Understanding 	between 	the 	State 	of 	New
York 	and 	the 	Graduate 	Student 	Employee 	Union, 	Communication
Workers 	of 	America, 	Local 	1188, 	provides 	for 	binding 	arbitration
for 	five 	types 	of 	grievances. 	It 	specifically 	is 	not 	applicable
to 	actions 	taken 	by 	the 	employer 	regarding 	academic 	matters.
Fees 	and 	expenses 	are 	paid by 	the 	losing 	party.
At 	the 	University of 	Oregon, 	the 	collective 	bargaining
agreement 	with 	the 	Graduate 	Teaching 	Fellows 	Federation 	(AFT
Local 	3544, 	AFL-CIO) 	provides 	that 	grievances 	may 	be 	filed 	by
individual 	employees, 	the 	union, 	or 	the 	university. 	The 	parties
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also 	negotiated 	limitations 	on 	the 	arbitrator's 	authority
regarding 	academic 	judgements, 	including 	the 	following:
The 	arbitrator 	shall 	have 	no 	authority 	to
hear 	or 	decide 	any 	issue 	or 	grievance
relating 	to 	any 	academic 	decision 	or 	judgment
concerning 	the 	member 	as 	a 	student 	.
The 	arbitrator 	shall 	have 	no 	authority 	to
make 	a 	decision 	which 	is 	contrary 	to 	the
academic 	policies 	and 	academic 	regulations 	of
the 	University.
The 	parties 	also 	agreed 	that 	the 	union 	and 	the 	designee 	of
the 	president 	of 	the 	university 	shall 	meet 	at 	the 	request 	of
either 	party 	to 	discuss 	matters 	pertinent 	to 	the 	implementation
or 	administration 	of 	the 	contract. 	Those 	meetings 	are 	not 	for
negotiations, 	but 	rather 	for 	the 	purpose 	of 	discussing 	collective
bargaining 	issues 	or 	any 	other 	issues 	that 	are 	of 	concern 	to 	the
parties.
Information 	Flow
Several 	witnesses 	called by 	the 	Petitioner 	testified 	about
how unions 	gather 	information 	from 	members 	in 	their 	role 	as 	the
exclusive 	representative. 	Typically, 	members 	are 	surveyed 	to
determine 	issues 	and 	concerns. 	Bargaining 	notes 	are 	kept 	to 	be
available 	to 	successor 	bargaining 	teams 	in 	an 	effort 	to 	build
continuity. 	Bargaining 	teams 	are 	selected 	in 	an 	effort 	to
balance 	the 	interests 	of 	bargaining unit 	members. 	Job 	stewards
are 	also 	selected 	in 	an 	effort 	to 	make 	representation 	available
to 	unit 	members.
Several 	collective 	bargaining 	agreements, 	such 	as 	those
mentioned 	above 	from 	the 	University of 	Wisconsin 	at 	Madison 	and
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Milwaukee 	and 	the 	University 	of 	Oregon, 	also 	provide 	for 	special
processes 	outside 	the 	grievance 	and 	collective 	bargaining
procedures 	for 	mutually 	sharing 	information 	and 	concerns 	among
the 	parties. 	There 	was 	testimony 	that 	these 	information 	sharing
meetings 	were 	successful 	at 	heading 	off 	potential 	problems.
Other University Academic 	Units
Several 	other 	academic 	units 	exist 	within 	the 	University
system. 	There 	is 	a 	faculty 	unit 	at 	UC 	Santa 	Cruz 	represented 	by
the 	Santa 	Cruz 	Faculty Association, 	a 	systemwide 	unit 	of
professional 	librarians 	(Unit 	17) 	represented 	by 	the 	University
Federation 	of 	Librarians, 	University 	Council-American 	Federation
of 	Teachers 	and 	a 	systemwide 	unit 	of 	lecturers 	in 	the 	non
academic 	senate 	instructional 	unit 	(Unit 	18) 	represented 	by
University 	Council-American 	Federation 	of 	Teachers, 	AFL-CIO.
In 	each 	of 	these 	units, 	the 	parties 	have 	negotiated
collective 	bargaining 	agreements. 	The 	collective 	bargaining
agreements 	contain 	some 	unique 	provisions 	to 	accommodate 	the
particular 	interests 	of 	the 	parties. 	For 	example, 	at 	UC 	Santa
Cruz, 	the 	parties 	agreed 	to 	defer 	to 	a 	wide 	range 	of 	existing
University policy 	as 	part 	of 	their 	contract. 	The 	librarian
contract 	has 	similar provisions 	which 	defer 	issues 	to 	other
longstanding 	University policies, 	thus 	excluding 	them 	from 	the
grievance 	processes 	of 	the 	contract.
69

During 	the 	pendency of 	the 	appeal 	in 	the 	AGSE16 case, 	the
University 	and AGSE 	engaged 	in 	a 	non-HEERA 	representation
process. 	In August 	1989, 	in 	an 	effort 	to 	limit 	the 	University's
potential 	remedial 	liability 	if 	the 	AGSE 	decision was 	reversed 	on
appeal, 	and 	to 	avoid 	additional 	strikes 	at 	the 	start 	of 	the
school 	year, 	the 	University 	and AGSE 	entered 	into 	an 	agreement
which 	became 	known 	as 	the 	Interim Agreement.
The 	Interim Agreement 	provided 	that 	the 	University would
meet 	with AGSE 	in 	good 	faith, 	on 	a 	regular 	basis 	at 	reasonable
times, 	to 	discuss 	issues 	related 	to 	terms 	and 	conditions 	of
employment 	of 	AGSE's 	membership. 	As 	part 	of 	the 	agreement, 	the
University 	agreed 	to 	provide 	AGSE 	with payroll 	dues 	deductions
and 	provide 	an 	option 	for 	dependent 	health 	care 	coverage 	at 	the
Berkeley 	campus. 	AGSE 	agreed 	to 	a 	no-strike 	clause 	for 	the
duration 	of 	the 	agreement. 	The 	terms 	of 	the 	agreement 	also
required 	ratification 	by 	the 	AGSE 	membership. 	The 	parties 	stated
in 	the 	document 	that 	the 	agreement 	did 	not 	confer 	rights 	or
obligations 	under 	the 	HEERA and 	that 	the 	agreement 	expired upon
final 	determination 	in 	the 	AGSE 	decision.
There 	is 	conflicting 	testimony 	about 	the 	negotiating 	process
and 	rights 	provided 	in 	the 	Interim Agreement. 	It 	is, 	however,
clear 	that 	the 	parties 	did 	meet 	in 	an 	effort 	to 	resolve 	problems
of 	a 	collective 	bargaining 	nature 	which were 	of 	concern 	to 	the
16Association 	of 	Graduate 	Student 	Employees I 	District 	65,
UAW v. 	Public 	Employment 	Relations 	Board; 	The 	Regents 	of 	the
University 	of 	California) 	(1992) 	6 	Cal.App.4th 	1133 	[8
Cal. Rptr. 2d 	275] 	(AGSE)
70

parties. 	Both 	sides 	had 	negotiating 	teams 	and 	they 	exchanged
proposals 	on 	various 	issues 	and 	reached 	agreements. 	When 	they
reached 	agreements, 	they were 	reduced 	to 	writing 	and 	became
enforceable 	policy. 	These 	final 	agreements, 	however, 	were 	issued
by 	the 	University 	as 	University policy 	and were 	not 	mutually
signed 	as 	contract 	provisions.
AGSE 	is 	currently 	the 	exclusive 	representative 	of 	a 	unit 	of
readers, 	tutors, 	acting 	instructors, 	nursery 	school 	attendants,
and 	community 	teaching 	fellows 	at 	UC 	Berkeley. 	During 	the 	AGSE
hearing 	in 	1985, 	the 	University 	stipulated 	that 	readers, 	tutors,
and 	acting 	instructors 	were 	employees 	as 	defined 	by 	the 	Act, 	and
therefore, 	entitled 	to 	rights 	guaranteed by HEERA.
The 	parties 	have 	been 	engaged 	in 	bargaining 	for 	an 	initial
contract 	since 	late 	1993. 	The 	parties 	have 	negotiated 	over 	a
full 	range 	of 	bargaining 	subjects 	and 	have 	reached 	agreement 	on 	a
number 	of 	issues. 	Progress 	toward 	a 	first 	contract, 	however, 	has
been 	very 	slow. 	Negotiations 	have 	been 	stalled, 	to 	some 	extent,
over 	disputes 	in 	unit 	makeup. 17
The 	tone 	of 	negotiations 	has 	been 	described 	by 	both 	parties
as 	mixed. 	Debra 	Harrington 	described 	negotiations 	as 	sometimes
quite 	antagonistic, 	and 	sometimes 	fairly 	cordial. 	She 	says 	there
have 	been 	times 	when 	both parties 	have 	taken 	strong 	positions 	in
nAfter 	the 	representation 	hearing, 	but 	prior 	to 	the
representation 	election, 	the 	University 	stopped 	using 	the 	title,
acting 	instructor, 	and 	placed 	all 	such 	employees 	into 	the 	title
of 	graduate 	student 	instructor 	(GSI) 	which 	had 	been 	excluded 	from
coverage 	under 	the 	Act. 	There 	is 	also 	a 	dispute 	about 	whether
learning 	skills 	counselors 	are 	"tutors" 	within 	the 	unit
description.
71

negotiations. 	Mary Ann 	Massenburg 	testified 	that 	the
negotiations 	have 	basically 	the 	same 	atmosphere 	and 	tone 	as 	many
other 	negotiations 	in which 	she 	has 	participated. 	She 	describes
them 	as 	generally 	civil, 	sometimes 	humorous, 	and 	sometimes
argumentative. 	Massenburg 	noted 	that 	the 	large 	University
bureaucracy 	sometimes 	makes 	the 	decision 	making 	process 	more
cumbersome 	for 	the 	employer, 	but 	otherwise 	negotiations 	are
similar 	to 	other 	public 	sector bargaining 	experiences.
On 	some 	issues, 	the 	University 	has 	taken 	a 	strong 	stand 	to
avoid 	any 	infringement 	upon 	the 	University's 	academic 	judgement
and 	discretion. 	For 	example, 	the 	parties 	have 	spent 	a 	great 	deal
of 	time 	discussing 	issues 	regarding 	an 	arbitrator's 	authority 	to
make 	academic 	judgments. 	The 	parties 	have 	reached partial
agreement 	on 	the 	arbitrability of 	some 	issues. 	While 	the 	parties
differ 	on 	the 	progress 	of 	negotiations, 	management 	feeling 	less
progress 	is 	being 	made 	and 	the 	union 	believing more 	progress 	has
been 	made, 	they 	have 	reached 	some 	agreements, 	solved 	some
problems, 	and 	hit 	other 	stumbling blocks 	that 	they 	are 	still
working 	to 	resolve.
Over 	the 	years, 	the 	University 	has 	been 	subjected 	to 	a
number 	of 	strikes 	from 	student 	employee 	groups. 	At 	UC 	Berkeley
there 	have 	been 	strikes 	in May 	of 	1989, 	and 	November 	and 	December
of 	1992. 	At 	UC 	Santa 	Cruz 	there 	have 	been 	two 	student 	employee
strikes. 	There 	have 	also 	been 	strikes 	at 	UCLA and UCSD. 	1 	of
these 	strikes 	have 	been 	recognition 	strikes. 	None 	occurred
during 	a 	formal 	bargaining 	relationship.
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Credibility 	Findings
In making 	these 	findings 	of 	fact, 	I 	have 	weighed 	the
contradictory 	testimony 	of 	many witnesses. 	Several 	experts 	were
called 	to 	offer 	opinion 	testimony 	about 	the 	second prong 	of
subsection 	(f). 	I 	generally 	find 	that 	those 	experts 	called 	by
the 	Petitioner 	were 	more 	credible, 	for 	purposes 	of 	this 	hearing,
than 	those 	called by 	the 	University. 	The 	experience 	of
Petitioner's 	experts 	seem 	to 	have 	either both more 	breadth 	and
depth, 	or was 	more 	directly 	related 	to 	the 	issues 	in 	dispute 	in
this 	case.
Petitioner's 	expert, 	Dr. 	David Hecker, 	Assistant 	President
of 	the 	Metro 	Detroit 	AFL-CIO, 	had 	direct 	negotiating 	experience
involving 	student 	employees, 	combined with 	extensive 	training 	and
academic 	expertise 	in 	the 	field. 	His 	testimony 	did 	not 	appear 	to
be 	overstated. 	He 	was 	able 	to 	support 	his 	opinions 	with 	specific
facts 	and 	examples. 	His 	direct 	testimony 	and 	cross-examination
were 	also 	internally 	consistent.
Dr. 	Alice 	Audi-Figueroa's 	expertise 	is 	strong 	in 	the 	area 	of
contract 	analysis. 	She 	is 	Assistant 	Director 	of 	Research 	for 	the
United Auto 	Workers 	and 	is 	a 	resource 	for 	local 	bargaining 	units
on 	a 	wide 	range 	of 	collective 	bargaining 	issues. 	In 	her
testimony 	she 	was 	able 	to 	clearly 	articulate 	the 	basis 	for 	her
opinions 	and 	support 	them with 	numerous 	examples 	and 	helpful
analysis. 	Her 	direct 	and 	cross-examinations 	were 	also 	internal
consistent.
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University witness, 	Dr. 	Daniel 	Julius, 	has 	tremendous
credentials 	as 	an 	expert 	in 	collective 	bargaining 	in 	higher
education. 	He 	has 	negotiated 	at 	least 	25 	collective 	bargaining
agreements 	in 	higher 	education 	and 	has 	authored 	5 	books 	and
numerous 	articles 	on many 	collective 	bargaining 	subjects.
However, 	his 	wealth 	of 	experience 	does 	not 	include 	any
negotiations 	involving 	units 	of 	student 	employees. 	Most 	of 	his
information 	regarding 	student 	employee 	negotiations 	was 	obtained
second 	hand. 	As 	well 	as 	being 	primarily 	hearsay, 	his 	testimony
suffers 	from 	excessive 	generalities 	and 	is 	undermined 	by
inaccuracies 	in 	specific 	examples 	cited. 	For 	example, 	Dr.
Julius' 	testimony 	about 	the 	University 	of 	Oregon 	had
inconsistencies 	with 	that 	of 	Dean 	Upham 	from 	the 	University 	of
Oregon. 	Additionally, 	Dr. 	Julius 	stated 	as 	a 	fact 	that 	at 	the
University of 	Oregon, 	the 	parties 	reached 	agreement 	to 	limit 	the
amount 	of 	time 	one 	could be 	a 	graduate 	student 	to 	seven 	years.
This 	was 	offered 	as 	an 	example 	of 	a 	conflict 	between maintaining
bargaining unit 	status 	and 	maintaining 	good 	academic 	standing.
On 	cross-examination, 	however, 	he 	was 	unable 	to 	find 	that
provision 	in 	the 	Oregon 	collective 	bargaining 	agreement 	and
admitted 	it 	was 	only a 	management 	proposal. 	Julius 	was 	incorrect
about 	the 	number 	of 	collective 	bargaining 	agreements 	negotiated
at 	State 	University of 	New York 	(SUNY) 	and 	admitted 	on 	cross
examination 	that 	he 	has 	not 	read 	any 	of 	the 	SUNY proposals 	or
given 	SUNY 	any 	input. 	His 	discussions 	have 	been 	limited 	to
74

strategic 	issues. 	Such examples 	undermine 	the 	credibility of
this 	witness' 	opinion 	testimony.
Another 	University 	expert 	witness 	who 	did 	not 	suffer 	from
lack 	of 	specific 	knowledge 	of 	student 	employee 	negotiations 	was
Dr. 	Craig, 	an Associate 	Dean 	at 	the 	University of 	Wisconsin 	in
Madison. 	She 	has 	had 	extensive 	experience 	with 	student 	employee
bargaining 	at 	the 	University 	of 	Wisconsin, 	Madison 	since 	1976.
Her 	Ph.D. 	dissertation 	studied 	the 	causes 	and 	conditions 	which
led 	to 	initial 	recognition 	of 	a 	graduate 	student 	employee 	union
at 	the 	University of 	Wisconsin.
Craig 1 s 	credibility, 	however, 	suffers 	from 	a 	very 	shallow
analysis 	and 	apparent 	lack 	of 	understanding 	of 	the 	bargaining
process. 	For 	example, 	when 	asked 	about 	difficulties 	which 	arose
during 	the 	University 	of 	Wisconsin's 	early 	stages 	of 	the
bargaining 	relationship 	from 	1971 	to 	1976, 	she 	responded 	as
follows:
Q. 	What 	activities 	were 	difficult 	that 	you 	are
referring 	to?
A. 	Well, 	there 	were 	- 	- 	there 	were 	stewards 	and
groups 	of 	teaching 	assistants 	who 	would
request 	meetings, 	would 	challenge 	decisions,
that 	kind 	of 	activity.
Q. 	And 	what 	was 	difficult 	about 	that?
A. 	Well, 	it 	interferes 	with 	- 	- 	it 	interferes
with 	the 	graduate 	program. 	It 	makes 	it
difficult 	for 	people 	who 	used 	to 	get 	along
well 	together, 	and 	used 	to 	work 	towards 	a
common 	end 	to 	keep 	on working 	towards 	that
end.
75

Craig 	also 	tended 	to 	make 	gross 	generalizations 	which 	she 	could
not 	back 	up 	with 	specifics. 	When 	asked 	to 	give 	an 	example 	of
harassment 	or 	a 	nuisance 	grievance, 	Craig 	testified:
the 	[union] 	filed 	complaints, 	if 	not
grievances, 	on 	behalf 	of 	teaching 	assistants
in 	departments 	over 	class 	size 	issues 	where
the 	teaching 	assistants 	had 	no 	interest 	in
grievances 	being 	processed. 	I 	would
characterize 	this 	as 	nuisance 	and 	harassment,
and 	so 	did 	the 	departments.
Q. 	And 	did 	the 	university 	feel 	that 	was 	- 	- 	that
the 	[union] 	was 	being 	deliberately
provocative?
A. 	Yes, 	I 	did.
When 	cross-examined on 	these 	harassment/nuisance 	grievances, 	it
became 	clear 	that 	Craig 	based 	her 	conclusions 	on 	the 	comments 	of
two 	department 	chairs 	who 	had 	no 	knowledge 	of 	whether 	the 	TAs 	had
asked 	the 	union 	to 	look 	into 	the 	matter. 	Furthermore, 	in 	some 	of
those 	grievances, 	adjustments 	were 	made 	because 	the 	University
was, 	in 	fact, 	violating 	its 	own 	class 	size 	policy.
Craig 	also 	gave 	several 	other 	examples 	of 	how 	collective
bargaining 	does 	not 	work 	in 	a 	university 	setting, 	which 	appear 	to
be 	based 	entirely upon 	internal 	management 	disputes 	between 	the
University 	and 	its 	chief 	negotiator. 	She 	also 	testified 	about
the 	negative 	impact 	the 	union's 	maintenance 	of 	membership
agreement 	might 	have 	on 	the 	University's 	recruitment 	of 	future
graduate 	students. 	In 	doing 	so, 	it 	became 	clear 	she 	could 	not
distinguish 	between maintenance 	of 	membership 	agreements, 	agency
fee 	agreements 	or 	a 	union 	shop. 	While 	these 	concepts 	can 	often
confuse 	people, 	a 	witness 	presented 	as 	an 	expert 	in 	collective
76

bargaining 	testifying 	about 	provisions 	of 	a 	contract 	she 	helped
negotiate 	should 	know 	the 	difference.
The 	testimony 	of 	Julius 	and 	Craig 	is 	also 	less 	persuasive
because 	their 	opinions 	about 	student 	employee 	coverage 	under
HEERA are 	based upon 	beliefs 	that 	collective 	bargaining 	is
detrimental 	to 	all 	higher 	education 	academic 	units. 	They painted
their 	opinions 	with 	a 	very 	broad 	brush, 	thus 	contradicting 	the
California 	Legislature, 	which 	specifically determined 	that 	it 	was
"advantageous 	and 	desirable" 	to 	provide 	coverage 	for 	faculty.
When 	one's 	opinions 	are 	based upon 	a 	fundamental 	belief 	so 	at
odds 	with 	the 	stated purposes 	of 	the 	Act, 	those 	opinions 	about
coverage 	under 	the 	Act 	tend 	to 	be 	less 	compelling. 	Of 	course 	it
is 	not 	appropriate 	to 	reject 	opinions 	of 	a 	witness 	simply because
they 	believe 	collective 	bargaining 	is 	destructive 	in 	academic
settings. 	However, 	when 	combined with 	other 	credibility 	issues
as 	well, 	their 	opinions 	were 	not 	helpful 	in making 	the 	necessary
distinctions 	between 	student 	employee 	coverage, 	which 	is 	at 	issue
in 	this 	case, 	from 	other 	academic 	bargaining, 	which 	is 	clearly
sanctioned by 	the 	Legislature 	under 	HEERA.
Dr. 	Ellen 	Switkes' 	testimony was 	limited 	to 	mentoring 	issues
and 	University processes. 18 	To 	the 	extent 	that 	Switkes 	offered
expert 	opinion 	testimony 	in 	other 	areas, 	that 	testimony 	is 	not
credited. 	Her 	opinion 	testimony within 	her 	area 	of 	expertise 	is
of 	limited value 	because 	it 	often 	seemed 	to 	be 	based 	on
18Limitations 	regarding 	her 	area 	of 	expertise 	and 	opinion
testimony did 	not 	limit 	her 	testimony 	in 	other 	areas 	as 	a
percipient 	witness.
77

uninformed 	speculation. 	For 	example, 	she 	testified 	about 	how
detrimental 	the 	use 	of 	APM 	140 	was 	to 	the 	student's 	welfare 	when
compared 	to 	"the 	student 	complaint 	policy." 	But, 	when 	she 	was
asked 	to 	give 	a 	brief 	summary 	of 	the 	difference 	between APM 	140
and 	the 	student 	complaint 	policy, 	she 	was 	unable 	to 	do 	so,
stating: 	"I 	can't 	because 	I 	don't 	know 	anything 	about 	the
student 	complaint 	policy 	except 	to 	refer 	people 	to 	it."
I 	have 	already 	noted 	that 	I 	discount 	the 	testimony of 	those
student 	employee 	witnesses 	who 	testified 	that 	the 	tutor/TA
training 	offered 	them 	no 	learnings 	whatsoever. 	Except 	for 	those
instances, 	the 	testimony 	of 	student 	employee 	witnesses 	is
accepted 	at 	face 	value, 	particularly with 	regard 	to 	their
individual 	motives 	for 	seeking work. 	It 	should be 	noted,
however, 	that 	some 	of 	the 	student 	witnesses 	(Victor Vendovato,
for 	example) 	were 	never 	employed 	in 	any 	of 	the 	title 	codes 	at
issue 	in 	this 	hearing. 	As 	such, 	their 	testimony 	does 	not 	carry
great 	weight 	regarding 	some 	issues.
There 	were 	also 	a 	number 	of 	percipient 	witnesses 	whose
testimony was 	particularly 	credible 	on 	certain 	aspects 	of 	issues
in 	this 	dispute. 	They were 	Professors 	Paul 	Saltman, 	Ross 	Frank,
Gabriele 	Weinhausen; 	Deans 	Duggan 	and Upham; 	Provost 	Wulbert;
and UAW 	Representatives 	Massenburg 	and 	DeProsse.
DISCUSSION
Indicia 	of 	Student 	Versus 	Employee 	Status
Before 	discussing 	the 	application 	of 	subsection 	(f) 	to 	the
facts 	in 	this 	case, 	I 	want 	to 	dispose 	of 	two 	issues 	upon 	which
78

the 	parties 	offered 	considerable 	argument. 	The 	first 	is 	whether
the 	facts 	are 	more 	of 	an 	indicia 	of 	status 	as 	a 	student 	or 	as 	an
employee. 	The 	University argued 	that 	the 	facts 	support 	a 	finding
of 	"studentness" 	among 	the 	individuals 	in 	question. 	It 	is 	clear,
however, 	that 	the 	individuals 	at 	issue, 	are 	both. 	They possess
all 	the 	attributes 	of 	students 	and 	they possess 	all 	the
attributes 	of 	employees. 	The 	test 	I 	must 	apply 	is 	not 	whether
they 	are 	more 	like 	students 	or 	employees, 	but 	rather 	I 	must
balance 	the 	value 	to 	educational 	objectives 	against 	the 	value 	of
the 	services. 	My 	analysis, 	therefore, 	does 	not 	focus 	upon, 	nor
do 	I 	try 	to 	decide, 	whether 	student 	employees 	are 	more 	like
students 	or more 	like 	employees.
UC 	Berkeley 	Precedent
The 	second 	issue 	is 	whether 	I 	should 	draw 	any 	significant
conclusions 	from 	events 	at 	UC 	Berkeley. 	Both parties 	offered
evidence 	and made 	substantial 	arguments 	about 	the 	significance 	of
bargaining 	events 	and 	issues 	at 	UC 	Berkeley. 	Each 	side 	seeks 	to
draw 	conflicting 	conclusions 	from 	this 	evidence. 	Although 	the
record 	reflects 	numerous 	similarities 	in 	the 	duties 	and 	terms 	and
conditions 	of 	employment 	between 	the 	UC 	Berkeley unit 	and 	the 	one
sought 	at 	UCSD, 	I 	place 	little 	reliance 	upon 	the 	evidence
presented 	regarding UC 	Berkeley. 	First, 	the 	University's
stipulation 	that 	readers, 	tutors, 	and 	acting 	instructors 	at 	UC
Berkeley 	are 	employees 	under 	the 	Act 	is 	not 	binding 	on 	the
University 	at 	UCSD. 	I 	have 	previously 	ruled 	that 	absent 	a 	new
stipulation 	to 	the 	contrary, 	each petition 	should be 	judged 	by
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the 	record 	established 	at 	that 	location. 	The 	UC 	Berkeley
stipulation was 	a 	tactical 	decision 	based upon 	the 	UC 	Berkeley
record. 	It 	was 	not 	an 	admission, 	nor 	is 	it 	binding 	on 	other
petitions.
Similarly, 	I 	do 	not 	find 	the 	UC 	Berkeley 	Interim Agreement
an 	admission 	that 	collective 	bargaining 	is 	appropriate 	at 	UCSD 	or
any 	other 	location. 	That 	agreement 	did 	not 	amount 	to 	collective
bargaining 	under 	HEERA. 	It 	also 	was 	a 	tactical 	effort 	to 	limit
liability 	in 	an 	unfair 	practice 	case 	and 	an 	effort 	to 	avoid
another 	recognition 	strike.
Finally, 	I 	also 	do 	not 	place 	great 	weight 	on 	the 	bargaining
occurring 	in 	the 	UC 	Berkeley 	readers, 	tutors 	and 	acting
instructors 	unit. 	The 	bargaining 	there 	appears 	to 	be 	like 	many
other 	new 	bargaining 	relationships. 	The 	parties 	are 	struggling
with 	their 	first 	contract 	and 	dealing 	with new 	issues. 	There 	are
unit 	description 	issues 	that 	are 	not 	yet 	resolved, 	which make
bargaining 	particularly 	difficult. 	It 	is 	simply 	too 	early 	to
draw 	any 	conclusions 	from 	bargaining 	at 	UC 	Berkeley, 	other 	than
the 	fact 	that 	the 	parties 	are 	engaged 	in 	a 	difficult 	first
negotiations.
Analysis 	of 	Subsection 	(f)
Subsection 	(f) 	calls 	for 	the 	application 	of 	three 	tests 	to
determine 	coverage 	under HEERA of 	student 	employees. 	The 	first
test 	is 	whether 	employment 	is 	contingent 	upon 	the 	candidate's
status 	as 	students. 	If 	employment 	in 	a 	disputed 	position 	is 	not
contingent 	upon 	status 	as 	students, 	then 	the 	additional
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requirements 	of 	subsection 	(f) 	do 	not 	apply 	and 	student 	employees
are 	guaranteed 	rights 	under 	HEERA.
The 	second 	test 	provides 	that 	even 	if 	employment 	in 	a
disputed 	position 	is 	contingent 	upon 	status 	as 	a 	student,
coverage 	under 	HEERA will 	be 	extended 	if 	services 	provided 	to 	the
University 	by 	the 	student 	employees 	are 	unrelated 	to 	the
educational 	objectives 	of 	those 	student 	employees.
The 	third 	test 	has 	two 	prongs. 	Under 	this 	test, 	student
employees 	whose 	employment 	is 	contingent 	upon 	their 	status 	as
students 	and whose 	educational 	objectives 	are 	related 	to 	the
services 	they perform 	for 	the 	University, 	may 	be 	extended
coverage 	under HEERA 	if 	their 	educational 	objectives 	are
subordinate 	to 	the 	services 	provided 	(Prong 	One) 	and 	coverage
under 	HEERA would 	further 	the 	purposes 	of 	the 	Act 	(Prong 	Two.)
First 	Test-Employment 	of 	Readers 	and 	Tutors 	is 	not 	Contingent
Upon 	Student 	Status
Subsection 	(f) 's 	first 	test 	for 	coverage 	under 	HEERA 	is
whether 	employment 	is 	contingent 	upon 	status 	as 	a 	student. 	The
best 	evidence 	reflecting 	whether 	employment 	in 	a 	disputed
position 	is 	contingent 	upon 	status 	as 	a 	student 	is 	whether 	non-
students 	are 	hired 	into 	the 	disputed position. 	The 	record 	in
this 	case 	very 	clearly 	reflects 	that 	employment 	as 	a 	reader 	or 	a
tutor 	is 	not 	contingent 	upon 	being 	a 	student.
University policy, 	as 	well 	as 	the 	testimony of 	numerous
witnesses, 	support 	a 	finding 	that 	students 	are 	given 	a 	preference
in 	filling 	the 	open 	positions, 	but 	that 	student 	status 	is 	not 	a
requirement. 	Both Vice 	Chancellor Watson 	and 	Dean Attiyeh
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confirmed 	that 	while 	students 	are 	given 	a 	priority 	for 	open
positions, 	non-students 	are 	also 	hired 	to 	fulfill 	the 	needs 	of
the 	instructional 	program. 	Other 	University witnesses 	also
testified 	that 	they 	hired 	non-students 	to 	maintain 	the 	quality 	of
their 	program. 	This 	testimony 	is 	also 	consistent 	with 	University
policy APM 	420.10, 	which 	allows 	non-students 	to 	be 	hired 	to 	meet
the 	needs 	of 	the 	University.
Thus, 	regarding 	readers 	and 	tutors, 	there 	is 	a 	clear 	hiring
preference 	that 	starts 	with graduate 	students, 	then 	goes 	to
undergraduate 	students, 	then 	to 	non-students. 	This 	is 	borne 	out
by 	the 	employment 	figures 	from 	fall 	1993 	through 	fall 	1994.
While 	non-students 	make 	up 	a 	small 	number 	of 	readers, 	(21), 	they
make 	up 	a 	significant 	percentage 	of 	tutors, 	almost 	as 	many 	as
graduate 	students. 	There 	were 	203 	graduate 	student 	tutors 	and
173 	non-student 	tutors.
Witnesses 	testified 	about 	being 	hired 	into 	a 	position while
they were 	a 	student, 	then 	dropping 	out 	of 	school 	or 	graduating,
and 	being 	rehired 	the 	very 	next 	quarter 	as 	a 	non 	student. 	If
employment 	was 	truly 	contingent 	upon 	student 	status, 	these 	non-
students 	could 	not 	be 	hired once 	they 	left 	school. 	The 	same
could be 	said 	for 	the 	numerous 	members 	of 	the 	San 	Diego 	community
who 	have 	never 	been UCSD 	students, 	but 	have 	been 	hired 	into 	one
of 	the 	disputed 	positions.
The 	fact 	that 	the 	University places 	student 	employees 	and
non-student 	employees 	into 	different 	title 	codes 	is 	not
significant. 	Different 	title 	codes 	are 	used 	for 	administrative
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convenience 	due 	to 	IRS 	regulations. 	It 	is 	the 	position 	of 	reader
and 	tutor 	that 	is 	determinative. 	Student 	employees 	and 	non-
student 	employees 	perform 	exactly 	the 	same 	work 	and 	are 	treated
the 	same 	in 	the 	reader 	and 	tutor 	positions. 	It 	is 	the 	status 	of
the 	hired 	individual 	that 	determines 	which 	title 	code 	is 	used,
not 	vice 	versa. 	Reader 	and 	tutor 	positions 	are 	not 	reserved
exclusively 	for 	either 	student 	employees 	or 	non-student
employees. 	There 	are 	no 	individual 	staffing 	levels 	assigned 	to
student 	employee 	versus 	non-student 	employee 	positions.
The 	lack 	of 	student 	status 	as 	a 	requirement 	for 	employment
is 	even more 	evident 	in 	comparison 	to 	the 	other 	position 	in
dispute 	in 	this 	hearing, 	associates. 	To 	be 	an 	associate, 	an
individual 	must 	be 	a 	student. 	That 	is 	an 	absolute 	requirement
for 	employment 	as 	an 	associate. 	No 	non-students 	are 	given 	the
job 	of 	associate.
The 	University 	argues 	that 	neither 	PERB 	nor 	the 	courts 	have
endorsed 	the 	above 	argument. 	However, 	neither 	the 	Supreme 	Court
in 	Regents, 	nor 	the 	Court 	of 	Appeal 	in AGSE, 	nor 	PERB 	in 	either
case, 	have 	ever 	been 	presented with 	this 	issue. 	In 	Regents, 	it
was 	clear 	that 	all 	of 	the 	proposed 	unit 	members 	were, 	in 	fact,
students. 	In 	the 	case, 	the 	University voluntarily
stipulated 	that 	students 	as 	well 	as 	non-students 	employed 	as
readers 	and 	tutors 	and 	acting 	instructors, 	were, 	in 	fact,
employees 	under 	the 	Act.
The 	University 	argues 	that 	non-student 	readers 	and 	tutors
generally 	have 	had 	a 	recent 	student 	relationship 	with 	the
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University. 	That 	argument 	is 	rejected 	for 	two 	reasons. 	First,
the 	record does 	not 	support 	such a 	claim. 	There 	is 	little
comprehensive 	evidence 	about 	the 	nature 	of 	non-students. 	Mostly,
the 	record 	reflects 	anecdotal 	accounts 	of 	non-students 	being 	both
former 	students 	and 	community members 	who 	are 	not 	recent
students. 	The 	second, 	and most 	important 	reason 	however, 	is 	that
HEERA 	subsection 	(f) 	does 	not 	refer 	to 	employment 	being
contingent 	upon 	"status 	as 	a 	very 	recent 	student," 	"a 	former
student," 	"a 	future 	student," 	or 	"the 	spouse 	of 	a 	student." 	It
simply 	refers 	to 	"status 	as 	students."
For 	the 	above 	reasons, 	I 	find 	that 	the 	hiring 	preference
given 	to 	students 	in 	the 	reader 	and 	tutor 	positions 	does 	not
amount 	to 	a 	contingent 	requirement 	of 	student 	status. 	Therefore,
the 	additional 	restrictions 	of 	subsection 	(f) 	do 	not 	apply, 	and
all 	individuals, 	students 	and 	non-students, 	employed 	as 	readers
or 	tutors, 	are 	employees 	under 	the 	Act.
Second 	Test-Services 	Provided by Readers 	are 	Unrelated 	to 	their
Educational 	Objectives
Assuming 	for 	the 	sake 	of 	argument 	on 	appeal, 	that 	status 	as
a 	student 	is 	found 	to 	be 	a 	requirement 	for 	employment 	as 	a
reader, 	then 	there 	are 	still 	other 	reasons 	for 	finding 	readers 	to
be 	employees 	under 	the 	Act.
Under 	subsection 	(f), 	student 	employees 	may 	also 	be
employees 	under 	the 	Act 	if 	their 	employment 	is 	unrelated 	to 	their
educational 	objectives. 	In 	previous 	decisions 	on 	student
employment, 	the 	Board and 	courts 	have 	started 	their 	analyses
after 	accepting 	the 	fact 	that 	the 	employment 	was 	related 	to
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educational 	objectives 	of 	the 	student 	employee. 	References 	to
the 	relationship 	between 	the 	employment 	and 	the 	educational
objectives 	of 	student 	employees 	have 	been 	dicta 	and 	have 	not 	been
consistent. 	For 	example, 	in 	Regents, 	the 	Supreme 	Court
articulated 	the 	test 	in 	several 	ways. 	At 	various 	points 	the
Court 	referred 	to 	whether 	the 	student's 	employment 	was 	related 	to
"their 	course 	of 	study" 	(p. 	612); 	whether 	the 	job was 	"related 	to
their 	educational 	program" 	(p. 	612); 	whether 	student 	employees
were 	"motivated by 	educational 	objectives" 	(p. 	613); 	whether 	"the
services 	were 	unrelated 	to 	their 	educational 	objectives"
(p. 	613); 	and 	whether 	"the 	student's 	motivation 	for 	accepting
employment 	was 	primarily 	educational" 	(p. 	614).
In AGSE, 	the 	Court 	of 	Appeal 	referred 	to 	whether 	the
"student's 	motivation 	for 	accepting 	employment 	was 	primarily
educational 	. 	11 	(p. 	114 O) .
Thus, 	there 	are 	two 	areas 	of 	analysis 	in 	determining 	whether
the 	services 	that 	students 	provide 	are 	related 	to 	their
educational 	objectives. 	The 	first 	is 	whether 	the 	services
(grading 	exams 	and 	correcting papers) 	are 	related 	to 	the
student's 	educational 	objectives 	(getting 	a 	degree 	and 	being
better 	credentialed 	for 	career 	opportunities 	or 	graduate 	school)
The 	second 	area 	of 	analysis 	is 	whether 	readers 	are 	motivated 	to
perform 	reader 	duties 	primarily 	in 	order 	to 	fulfill 	their
educational 	objectives 	or 	primarily 	for 	economic 	objectives.
Under 	either 	analysis, 	I 	find 	that 	the 	services 	provided by
readers 	are 	unrelated 	to 	their 	educational 	objectives.
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The 	reader 	position 	fulfills 	no 	obligations 	which 	are 	part
of 	any degree 	program. 	In most 	cases 	the 	position 	offers 	little
direct 	contact 	with 	faculty. 	It 	does 	not 	appear 	to 	be 	a
particularly effective 	way of 	either 	building 	credentials 	for
graduate 	school 	or 	adding 	to 	a 	resume 	when 	seeking 	employment
upon 	graduation. 	Except 	for 	those 	whose 	career 	objectives 	are
specifically 	to 	become 	a 	teacher 	(such 	as 	TEP 	readers), 	the
learning 	provided 	through 	the 	reader 	job 	is 	marginal. 	Even 	for
those 	who 	plan 	on 	becoming 	teachers, 	the 	instruction 	they may
receive 	regarding 	grading 	is 	typically 	cursory 	and 	sporadic. 	The
readers 	must 	have 	already 	demonstrated 	their 	expertise 	in 	the
subject 	matter 	or 	they would 	not 	have 	been 	hired for 	the 	job.
While 	reviewing 	course 	material 	will 	always 	be 	helpful 	to 	a
student, 	other 	methods 	such 	as 	directed 	reading 	courses 	or
teaching 	the 	material 	as 	a 	TA, 	are 	much more 	effective 	at
building mastery 	of 	the 	subject.
In 	reviewing 	the 	motivation 	of 	readers 	to 	seek 	employment,
it 	is 	clear 	that 	economics 	plays 	a 	much more 	significant 	role
than 	academics. 	It 	was 	the 	norm 	that 	readers 	sought 	employment
to 	generate 	income 	in 	order 	to 	support 	themselves. 	While 	some
readers 	were 	also 	motivated 	by 	an 	opportunity 	to 	meet 	faculty,
master 	subject 	matters, 	gain 	lecture 	notes 	for 	their 	own
teaching, 	or 	simply 	assist 	other 	students, 	any 	success 	they 	might
have 	achieved 	in 	attaining 	their 	goals 	seems 	to 	relate 	more 	to
their 	individual 	circumstances 	than 	to 	the 	inherent 	nature 	of 	the
reader 	position. 	The 	non-economic 	goals 	of 	some 	individuals 	were
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realized 	because 	of 	the 	atypical 	structure 	of 	their 	particular
reader 	position 	(e.g., 	proctors 	who 	are 	given 	duties 	more 	closely
akin 	to 	an 	undergraduate 	TA position 	than 	the 	typical 	reader
position). 	For 	others, 	non-economic 	goals 	were 	realized 	because
of 	the 	particular manner 	in which 	they performed 	their 	duties
(e.g., 	Abe 	Shragge, 	a 	reader 	who 	also 	teaches 	courses 	at 	two
community 	colleges, 	attends 	lectures 	even 	though 	it 	is 	not 	a 	part
of 	reader 	duties 	in 	order 	to 	build his 	inventory 	of 	lecture 	notes
for 	his 	own 	teaching.)
These 	unique 	experiences, 	however, 	stand 	in 	contrast 	to 	most
readers 	who 	look 	at 	the 	readers' 	experience 	as 	a 	job. 	Typically,
a 	reader 	position 	is 	considered a 	better 	job 	than many 	students
could get 	elsewhere. 	The 	pay 	is 	competitive 	with 	other 	part-time
hourly positions 	on 	campus. 	Most 	readers 	appreciate 	that 	it 	is 	a
job 	with 	flexibility 	not 	offered by many 	other 	jobs. 	They 	also
appreciate 	that 	it 	is 	a 	job 	that 	usually 	relates 	more 	closely 	to
their 	academic 	program 	than 	driving 	a 	taxi 	or 	working 	in 	a
grocery 	store. 	Most 	were 	pleased 	that 	it 	could 	help 	fund 	their
education. 	Almost 	all 	witnesses 	felt 	it 	was 	a 	sought 	after 	job
and many 	felt 	it 	was 	a 	very 	rewarding 	job. 	However,
fundamentally, 	almost 	all 	readers 	acted 	like 	it 	was 	a 	job 	and 	not
an 	educational 	endeavor.
The 	UC 	argument 	that 	money 	earned 	as 	a 	reader 	is 	financial
aid 	is 	unpersuasive. 	The 	wages 	earned 	as 	a 	reader 	are 	not
financial 	aid. 	The 	positions 	are 	not 	need 	based 	and 	are
typically 	not 	guaranteed 	as 	part 	of 	any 	financial 	aid package,
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nor 	referred 	to 	in 	letters 	of 	acceptance. 	When 	requests 	for
financial 	aid 	are 	considered, 	income 	from 	employment 	as 	a 	reader
is 	treated 	the 	same 	as 	outside 	income. 	Wages 	are 	not 	transformed
into 	financial 	aid 	simply because 	they 	enable 	a 	student 	employee
to 	stay 	in 	college. 	They 	are 	still 	wages 	just 	like 	those 	earned
by 	a 	student 	working 	his 	or 	her 	way 	through 	college 	at 	a
bookstore 	or 	a 	gas 	station, 	or 	like 	those 	wages 	spent 	on 	a
vacation 	to 	Mexico 	over 	spring 	break.
For 	the 	above 	reasons, 	I 	find 	that 	the 	service 	provided 	by
readers 	are 	unrelated 	to 	their 	educational 	objectives. 	The
further 	restrictions 	of 	subsection 	(f) 	do 	not 	apply 	and 	student
employees 	in 	reader 	positions 	are 	entitled 	to 	coverage 	under 	the
Act.
Third 	Test-Educational 	Objectives 	are 	Subordinate 	to 	Services 	and
Coverage 	Under 	the 	Act 	Would 	Further 	the 	Purposes 	of 	the 	Act
In Regents, 	the 	Supreme 	Court 	reviewed HEERA 	legislative
history, 	noting 	that 	the 	Legislature 	had 	created 	a 	new 	standard
for 	determining 	this 	issue 	rather 	than 	following 	National 	Labor
Relations 	Board 	(NLRB) 	precedent. 	The 	court 	believed 	that
subsection 	(f) 	was 	the 	Legislature's 	attempt 	to 	craft 	a 	more
comprehensive 	alternative 	to 	either 	a 	"primary purpose" 	test 	or 	a
test 	focused 	instead 	on 	the 	value 	of 	the 	services 	performed.
The 	court 	believed 	that 	in 	crafting HEERA, 	the 	Legislature
did 	not 	focus 	solely on 	the 	primary purpose 	for 	the 	employment 	or
on 	the 	value 	of 	services 	performed. 	Instead, 	subsection 	(f)
requires 	that 	in 	cases 	where 	employment 	is 	contingent 	upon
student 	status 	and 	the 	student 	employee's 	educational 	objectives
88

are 	related 	to 	the 	services 	performed, 	then 	PERB 	must 	balance
those 	educational 	objectives 	against 	the 	value 	of 	the 	services
performed.
In 	determining 	the 	educational 	objectives 	of 	the 	student
employees, 	the 	court 	made 	it 	clear 	that 	PERB 	was 	to 	focus 	on 	the
personally 	held 	subjective 	perceptions 	of 	the 	students
themselves. 	Once 	the 	subjective 	educational 	goals 	of 	the 	student
employees 	are 	determined, 	they 	are 	then 	weighed 	against 	the
objective 	value 	of 	the 	services 	performed:
to 	see 	if 	the 	students' 	educational
objectives, 	however 	personally 	important, 	are
nonetheless 	subordinate 	to 	the 	services 	they
are 	required 	to 	perform. 	Thus, 	even 	if 	PERB
finds 	that 	the 	students' 	motivation 	for
accepting 	employment 	was 	primarily
educational, 	the 	inquiry does 	not 	end 	here.
PERB 	must 	look 	further-to 	the 	services
actually performed-to 	determine 	whether 	the
students' 	educational 	objectives 	take 	a 	back
seat 	to 	their 	service 	obligations. 	[Regents
at 	p. 	614, 	fn. 	omitted.]
Thus, 	even 	if 	all 	the 	student 	employees 	concurred 	that 	their
purpose 	in 	taking 	the 	job was 	to 	further 	their 	educational
objectives, 	the 	Board 	could 	determine 	that 	those 	educational
objectives 	were 	subordinate 	to 	the 	value 	of 	the 	services
provided. 	For 	example, 	in 	Regents, 	there 	was 	evidence 	that 	the
interns 	and 	residents 	chose 	those 	positions 	in 	order 	to 	best
fulfill 	their 	personal 	educational 	objectives. 19 	Yet, 	the 	Board
19The 	administrative 	law 	judge 	(ALJ) 	in 	that 	case 	noted:
[A]ll 	housestaff 	witnesses 	testified 	that
their 	educational 	objectives 	in 	choosing 	[and
participating 	in 	a] 	residency program was 	to
receive 	[the] 	best 	medical 	training 	and 	to
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still 	found 	that 	the 	educational 	objectives 	were 	subordinate 	to
the 	valuable 	patient 	care 	services 	provided by 	housestaff.
Once 	the 	Board 	determined 	that 	the 	educational 	objectives
were 	subordinate 	to 	the 	services 	performed, 	the 	Board 	had 	to
determine 	if 	it 	would 	further 	the 	purposes 	of 	the 	Act 	to 	extend
coverage 	to 	housestaff. 	The 	Board 	reviewed 	the 	purposes 	of 	the
Act 	and 	concluded 	that 	the 	extension 	of 	collective 	bargaining
rights 	to 	housestaff 	would give 	them 	a 	viable 	mechanism 	for
resolving 	their 	differences, 	and 	coverage 	would 	therefore 	foster
harmonious 	and 	cooperative 	labor 	relations 	between 	the 	University
and 	housestaff.
In 	upholding 	the 	Board 	decision, 	the 	court 	specifically
reject~d 	the 	University's 	claim 	that 	the 	University's 	mission
would 	be 	undermined 	by bargaining 	on 	subjects 	tied 	to 	the
educational 	aspects 	of 	the 	residency programs .
. 	This 	"doomsday 	cry" 	seems 	somewhat
exaggerated 	in 	light 	of 	the 	fact 	that 	the
University 	engaged 	in 	meet-and-confer
sessions 	with 	employee 	organizations
representing 	housestaff 	prior 	to 	the
effective 	date 	of 	HEERA.
Moreover, 	the 	University's 	argument 	is
premature. 	The 	argument 	basically 	concerns
the 	appropriate 	scope 	of 	representation 	under
the 	Act. 	(See 	section 	3562, 	subd. 	(q) .)
Such 	issues 	will 	undoubtedly 	arise 	in
specific 	factual 	contexts 	in which 	one 	side
wishes 	to 	bargain 	over 	a 	certain 	subject 	and
the 	other 	side 	does 	not. 	These 	scope-of-
representation 	issues 	may 	be 	resolved 	by 	the
Board when 	they 	arise, 	since 	it 	alone 	has 	the
responsibility 11 [t]o 	determine 	in 	disputed
qualify 	for 	specialty 	or 	subspecialty
certification.
90

cases 	whether 	a 	particular 	item 	is 	within 	or
without 	the 	scope 	of 	representation."
(Section 	3563, 	subd. 	(b) . ) 	[Regents 	at
p. 	623, 	emphasis 	in 	original, 	fn. 	omitted.]
It 	also 	rejected 	the 	University's 	claim 	that 	extending
coverage 	could 	lead 	to 	strikes 	and was 	inappropriate 	due 	to 	the
brief 	tenure 	of 	housestaff.
The 	University 	also 	argues 	that 	permitting
collective 	bargaining 	for 	housestaff 	may 	lead
to 	strikes. 	However, 	it 	is 	widely 	recognized
that 	collective 	bargaining 	is 	an 	alternative
dispute 	resolution 	mechanism which 	diminishes
the 	probability 	that 	vital 	services 	will 	be
interrupted. 	(See 	San 	Diego 	Teachers 	Assn.
v. 	Superior 	Court, 	supra, 	24 	Cal.3d 	at
pp • 	8 - 9 / 	13 • )
Finally, 	the 	University 	argues 	that 	the 	brief
tenure 	of 	housestaff's 	relationship 	with 	the
University 	undermines 	the 	conclusion 	that
coverage 	would 	further 	the 	purposes 	of 	the
Act. 	The 	University 	acknowledges 	that 	many
other 	individuals 	whose 	relationship 	with 	the
University 	is 	of 	short 	duration 	have 	been
accorded 	employee 	status 	with 	full 	bargaining
rights. 	Housestaff 	should 	not 	be 	treated
differently. 	[Regents 	at 	pp. 	623-624.]
In 	the 	AGSE 	case, 	originally 	filed 	in 	1983, 	the 	petitioner
sought 	to 	represent 	graduate 	student 	instructors 	(GSis) 	and
graduate 	student 	researchers 	(GSRs), 	among 	others. 	The 	Board 	had
a 	difficult 	time 	applying 	the 	facts 	of 	the 	AGSE 	case 	to 	the 	test
set 	forth 	in 	Regents. 	First, 	the 	Board 	redefined 	the 	definition
of 	educational 	objectives. 	The 	Board minimized 	the 	subjective
view 	of 	the 	student 	employees, 	added 	the 	additional 	opinions 	and
objectives 	of 	professors, 	and 	analyzed 	them within 	the 	framework
of 	the 	University's 	graduate 	program. 	Instead 	of 	weighing 	the
personal 	educational 	objectives 	of 	the 	student 	employees 	against
91

the 	value 	of 	the 	services 	rendered, 	the 	Board 	stated 	the 	issue 	as
follows:
The 	issue 	in 	this 	case 	is 	how 	the 	academic
considerations 	of 	student, 	faculty 	and
administration 	are 	to 	be 	weighed 	against 	the
kind 	of 	services 	the 	student 	is 	performing
within 	the 	context 	of 	the 	University's 	entire
graduate 	student 	program. 	[Regents 	of 	the
University of 	California 	(1989) 	PERB 	Decision
No. 	730-H, 	p. 	39.]
The 	Board 	also 	noted 	that 	the 	test 	it 	was 	supposed 	to 	apply
required 	the 	Board 	to 	balance 	a 	seemingly 	subjective 	element
(personal 	educational 	objectives) 	against 	an 	objective 	one 	(the
value 	of 	the 	services 	rendered). 	The 	Board 	therefore 	felt 	it 	was
necessary 	to 11 recalibrate 	the 	scale."
Instead of 	looking 	at 	each 	side 	of 	the 	scale
and weighing 	each 	interest 	(academic 	and
employment) 	independently, 	a 	more 	helpful
approach 	is 	to 	examine 	how 	the 	two 	interests
interrelate 	and 	determine 	which 	side
ultimately prevails 	when 	the 	two 	interests
conflict 	. 	. 	by 	examining 	the 	balancing
test 	from 	this 	perspective, 	we 	avoid 	having
to 	weigh 	subjective 	against 	objective 	factors
in 	reaching 	our 	conclusion.
Weighing 	the 	facts 	of 	this 	case 	on 	our 	newly
calibrated 	scale, 	we 	find 	that 	in 	cases 	of
conflict 	between 	academic 	and 	employment
considerations, 	academic 	considerations
ultimately prevail. 	We 	therefore 	conclude,
based upon 	the 	record 	as 	a 	whole, 	that 	the
students' 	educational 	objectives 	are 	not
subordinate 	to 	the 	services 	they 	actually
perform 	as 	GSis 	and 	GSRs. 	[Id. 	at
pp. 	4 7-48.]
The 	Board 	then 	reviewed 	the 	second prong 	of 	the 	test, 	i.e.,
whether 	finding 	GSis 	and GSRs 	to 	be 	employees 	under 	the 	Act 	would
further 	the 	purposes 	of 	the 	Act. 	It 	concluded:
92

Thus, 	the 	academic 	nature 	of 	the 	GSI 	and 	GSR
appointments, 	which 	promotes 	the 	free
exchange 	of 	ideas 	necessary 	for 	the 	graduate
students 	to 	become 	scholars 	and 	achieve 	their
educational 	objectives, 	would 	be 	sacrificed
for 	the 	economic 	nature 	of 	collective
bargaining. 	This 	result 	is 	contrary 	to 	the
purpose 	of 	HEERA 	to 	encourage 	the 	"pursuit
of 	excellence 	in 	teaching, 	research,
and 	learning 	through 	the 	free 	exchange 	of
ideas 	among 	the 	faculty, 	students, 	and
staff. 	11 	[Regents 	of 	the 	University of
California, 	supra, 	PERB 	Decision No. 	730-H,
p. 	54.]
The 	Board noted 	that 	while 	the 	ALJ 	focused 	upon 	the
development 	of 	harmonious 	and 	cooperative 	labor 	relations 	between
the 	University 	and 	its 	student 	employees, 	he 	did 	not 	address 	the
academic 	nature 	of 	the 	professor 	student 	relationship. 	Citing
the 	NLRB 1 s 	discussion 	of 	labor 	policy 	in 	St. 	Clare 	Hospital 	and
Health 	Center, 	supra, 	229 	NLRB 	1000, 	the 	Board held 	that 	the
importance 	of 	the 	mentor 	relationship 	between 	professors 	and
their 	students 	in 	the 	pursuit 	of 	educational 	excellence 	cannot 	be
understated. 	The 	Board 	found:
The 	record 	is 	replete 	with 	testimony 	from
both 	professors 	and 	graduate 	students 	which
describe 	the 	professor-student 	assistant
relationship 	as 	including many more 	hours
than 	the 	required minimum, 	one-on-one
interaction, 	mutual 	collaboration on 	lectures
and 	research papers, 	participation 	in
seminars 	and 	constructive 	comments 	on 	each
other's 	written work. 	[Regents 	of 	the
University of 	California, 	supra, 	PERE
Decision No. 	730-H, 	p. 	50.]
The 	Board 	feared 	that:
Collective 	bargaining would 	emphasize
economics, 	which 	would 	become 	the 	primary
goal 	at 	the 	expense 	of 	the 	academic 	goals 	of
the 	GSI 	and 	GSR programs. 	[Id. 	at 	p. 	51.]
93

Focusing 	specifically on 	the 	GSis, 	the 	Board 	stated:
Although 	it 	could be 	argued 	that 	including
GSis 	under 	the 	coverage 	of 	HEERA 	could
promote 	harmonious 	and 	cooperative 	labor
relations 	among 	the 	GSis, 	there 	is 	no
evidence 	that 	collective 	bargaining would
encourage 	the 	pursuit 	of 	excellence 	in
teaching. 	[Regents 	of 	the 	University 	of
California, 	supra, 	PERB 	Decision No. 	730-H,
p. 	52.]
The 	selection process 	at 	Berkeley 	involves 	a 	mutual 	process
of 	accommodating 	the 	choices 	of 	professors 	and GSis. 	The 	Board
found 	that 	GSis 	based 	their 	choices 	on 	their 	desire:
to 	learn 	a 	particular 	subject, 	refresh
their 	background 	in 	fundamentals, 	or 	learn 	a
different 	approach 	or 	perspective 	to 	a 	topic
through 	a 	particular professor 	or 	course.
This 	selection process 	emphasizes 	the
academic 	nature 	of 	the 	GSI 	program. 	[Id. 	at
p. 	53.]
Collective 	bargaining was 	found 	not 	to 	promote 	harmonious
and 	cooperative 	labor 	relations 	among 	GSis 	and GSRs 	because 	of
the 	continuous 	movement 	among 	graduate 	students 	in 	and 	out 	of 	GSI
and 	GSR 	positions. 	The 	Board 	felt 	graduate 	students 	would 	be
split 	into 	two 	groups: 	Those 	in 	bargaining unit 	positions 	and
those 	not. 	Membership 	would 	change 	frequently, 	depending 	upon
the 	availability 	of 	appointments 	and 	thus 	causing 	instability.
The 	final 	basis 	for 	the 	Board's 	decision 	was 	its 	belief 	that
it 	is 	virtually 	impossible 	to 	separate 	academics 	from 	economics,
thus, 	involving 	the 	parties 	in 	bargaining 	over 	current 	academic
practices.
94

On 	appeal 	in 	the 	AGSE 	case, 	the 	court 	held 	that 	the 	Board's
"recalibration 	of 	the 	scales" 	had 	so 	distorted 	the 	first 	prong 	of
subsection 	(f) 	that 	the 	Board 1 s 	finding 	was 	invalid.
PERB's 	test 	contradicts 	Regents 1 	test 	because
it 	does 	not 	examine 	in 	aggregate 	the
educational 	objectives 	of 	the 	students 	and
compare 	them with 	the 	aggregate 	of 	the
services 	rendered. 	Instead 	it 	extracts 	those
services 	which 	conflict 	with 	educational
objectives 	and 	examines 	how 	conflicts 	are
resolved. 	PERB 	lacks 	the 	authority 	to 	change
the 	Regents 	test. 	[Citation.]
PERB 	should 	have 	been 	looking 	for 	a 	better
way 	to 	evaluate 	student 1 s 	educational
objectives 	and 	to 	compare 	them 	with 	the
services 	they performed, 	not 	for 	an 	excuse 	to
"avoid 	having 	to 	weigh 	subjective 	against
objective 	factors."
PERB 1 s 	distortion 	of 	the 	first 	prong 	renders
suspect 	its 	conclusion 	that 	GSI 	and 	GSR
educational 	objectives 	are 	not 	subordinate 	to
services. 	[AGSE 	at 	pp. 	1142-1144.]
Instead, 	the 	court 	laid 	out 	the 	proper 	test 	as 	follows:
"Case-by-case 	analysis" 	would 	call 	upon 	PERB
to 	consider 	all 	the 	ways 	in which GSI 	and 	GSR
employment 	meet 	educational 	objectives 	of 	the
students 	and 	all 	the 	ways 	in 	which 	the
employment 	provides 	services 	and 	to 	compare
the 	value 	and 	effectiveness 	of 	the 	employment
in meeting 	the 	students' 	educational
objectives 	with 	the 	value 	and 	effectiveness
of 	the 	employment 	in 	providing 	services.
PERB, 	with 	its 	expertise, 	would 	then make 	a
judgment 	about 	whether 	the 	employment 	was
more 	valuable 	and 	effective 	in meeting
educational 	objectives 	or 	in 	providing
service 	to 	the 	University: 	whether 	the
"educational 	objectives 	are 	subordinate 	to
the 	services" 	the 	students 	perform.
(Id. 	at 	p. 	1143, 	emphasis 	in 	original.)
95

The 	court 	did 	uphold 	the 	Board's 	decision, 	however, 	because
it 	found 	that 	the 	Board 	appropriately 	applied 	the 	second 	prong 	of
the 	test, 	and 	that 	the 	Board's 	decision was 	supported by
substantial 	evidence.
The 	court 	found 	substantial 	evidence 	based on 	the 	testimony
of 	Dr. 	Robert 	Bickel, 	that 	collective 	bargaining would 	interfere
with 	complex 	and 	fragile 	mentor-student 	relationships, 	could 	do
serious 	damage 	to 	the 	stature 	of 	the 	institution 	and, 	effect 	its
ability 	to 	attract 	and 	retain 	the 	most 	able 	and productive
faculty 	and 	graduate 	students. 	The 	Board's 	finding 	was 	also
supported by 	testimony 	about 	collective 	bargaining by Dutch
graduate 	students.
Both 	the 	Supreme 	Court 	in 	Regents 	and 	the 	Court 	of 	Appeal 	in
AGSE 	reiterated 	that 	the 	application 	of 	subsection 	(f) 	requires 	a
case-by-case 	analysis 	of 	the 	unique 	facts 	presented 	from 	each
petition. 	The 	unique 	facts 	of 	this 	case 	demonstrate 	that 	the
educational 	objectives 	of 	readers, 	tutors, 	and 	associates 	are
subordinate 	to 	the 	services 	they provide, 	and 	it 	would 	further
the 	purposes 	of 	the 	Act 	to 	extend 	coverage 	to 	these 	employees.
Prong 	One-Educational 	Objectives 	are 	Subordinate 	to 	Services
In 	this 	next 	section 	I 	will 	discuss 	the 	first 	prong 	of
subsection 	(f), 	i.e., 	how 	the 	educational 	objectives 	of 	readers,
tutors 	and 	associates 	are 	subordinate 	to 	the 	services 	they
provide.
96

Readers 	- 	Prong One
Assuming, 	for 	the 	sake 	of 	argument 	on 	appeal, 	that 	it 	is
found 	that 	employment 	as 	a 	reader 	is 	contingent 	upon 	student
status, 	and 	that 	the 	services 	performed 	are 	related 	to 	the
reader's 	educational 	objectives, 	readers 	should 	still 	be 	covered
by 	the 	Act 	because 	their 	educational 	objectives 	are 	subordinate
to 	the 	services 	provided 	and 	coverage 	would 	further 	the 	purposes
of 	the 	Act. 	Even 	if 	the 	educational 	objectives 	of 	students 	are
described 	in 	the 	broadest 	terms 	as 	argued 	by 	the 	University
(finishing 	the 	degree 	programs, 	mastering 	various 	academic
subjects, 	building 	relationships 	with 	faculty, 	serving 	the 	needs
of 	students, 	experiencing 	the 	teaching 	process 	and 	building
credentials 	for 	graduate 	school 	and post 	graduate 	employment), 	I
find 	the 	value 	and 	effectiveness 	of 	meeting 	those 	objectives
through 	employment 	as 	a 	reader 	to 	be 	minimal. 	If 	educational
objectives 	are 	described 	as 	narrowly 	as 	the 	Petitioner 	argues
(simply 	obtaining 	a 	degree), 	the 	value 	of 	being 	a 	reader 	in
meeting 	that 	objective 	is 	practically non-existent.
As 	covered 	in 	the 	previous 	section, 	the 	greatest 	value 	of
employment 	as 	a 	reader 	appears 	to 	be 	economic 	rather 	than
academic. 	It 	does 	not 	fulfill 	requirements 	of 	any 	academic
program 	and 	is 	not 	particularly effective 	in 	building
relationships 	with 	faculty. 	A typical 	reader 	position 	is 	not 	at
all 	effect 	for 	building 	relationships 	with 	or 	direct
assisting 	fellow 	students.
97

Clearly, 	employment 	as 	a 	reader 	is 	of 	some 	value 	to 	many
students 	in 	gaining mastery 	of 	academic 	subjects, 	experiencing
the 	teaching process 	and 	building 	credentials 	for 	graduate 	school
and 	future 	employment. 	However, 	as 	discussed 	earlier, 	employment
as 	a 	reader 	is 	not 	a 	particularly effective 	way of 	obtaining 	that
value.
An 	additional 	fact 	considered 	is 	that 	when, 	on 	rare
occasions, 	conflicts 	do 	occur between 	the 	student's 	educational
objectives 	and 	the 	service 	obligations 	to 	the 	University, 	they
are 	normally 	resolved 	by 	the 	reader 	in 	favor 	of 	the 	service
obligation 	to 	the 	University. 	This 	is 	a 	natural 	result 	of 	the
necessity 	to 	get 	grades 	submitted 	in 	a 	timely manner. 	While 	the
University places 	great 	emphasis 	on 	avoiding 	such 	conflicts 	by
encouraging 	students 	not 	to 	over 	commit 	and 	by 	requiring 	approval
of 	larger 	than 	normal 	workloads 	for 	readers, 	once 	the 	readers
accept 	employment 	they 	are 	expected 	to 	fulfill 	those 	obligations
even 	at 	the 	expense 	of 	their 	own 	studies.
The 	value 	and 	effectiveness 	of 	employment 	of 	readers 	upon
service 	to 	the 	University 	is 	substantial. 	The 	University, 	as 	it
is 	currently 	structured, 	would 	not 	be 	able 	to 	fulfill 	its 	mission
if 	it 	did 	not 	employ 	students 	to 	perform 	the 	service 	of 	readers.
Several 	witnesses 	testified 	that 	when 	students 	were 	not 	available
they would 	hire 	non-students 	because 	it 	was 	necessary 	to 	maintain
the 	integrity 	and 	quality of 	the 	teaching 	mission. 	Provost
Wulbert 	testified 	that 	the 	use 	of 	readers 	and 	tutors 	was
98

essential. 	Professor 	Davidson 	summarized 	how 	he 	would 	have 	to
operate 	without 	readers 	as 	follows:
Well, 	if 	I 	didn't 	have 	a 	reader 	in 	an 	upper
division 	course 	that 	had 	a 	large 	enrollment,
let's 	say 	it 	had 	an 	enrollment 	of 	60 	or 	70
people, 	I 	would probably 	rely more 	on 	tests
and 	multiple 	choice 	kinds 	of 	situations 	than
papers, 	but 	I 	think 	that's 	pedagogically
irresponsible 	because 	I 	think 	in 	those 	kinds
of 	courses, 	they're 	usually 	large 	courses 	in
the 	novel, 	for 	example, 	what 	you 	can 	ask 	on 	a
multiple 	choice 	test 	is 	pretty minimal,
whereas 	on 	a 	paper you 	can 	really 	get 	to 	see
what 	they're 	thinking 	about 	these 	novels.
Even 	Dr. 	Switkes, 	who 	testified 	that 	the 	University 	could
manage 	without 	readers 	and 	tutors 	acknowledged 	that, 	"it 	would 	be
bad 	for 	the 	educational 	enterprise." 	Switkes' 	solution would 	be
for 	faculty 	to 	read more 	papers 	and 	assign 	fewer 	papers. 	Faculty
would 	also 	have 	to 	hold more 	office 	hours 	and 	either 	hold 	larger
tutorial 	classes 	or 	eliminate 	them 	altogether. 	Switkes 	also
indicated 	that 	graduate 	TAs 	could 	also 	perform more 	of 	these
tasks. 	In 	other 	words, 	either 	eliminate 	work 	which 	has 	been
highly valued 	or 	pass 	it 	on 	to 	other University 	employees,
including 	other 	student 	employees. 	However, 	given 	the 	magnitude
and volume 	of 	work 	performed by 	readers, 	simply 	requiring 	other
current 	University 	employees 	to 	perform 	those 	duties 	seems 	little
more 	than 	an 	unreasonable 	fantasy. 	This 	is 	especially 	true 	in
light 	of 	the 	testimony 	that 	faculty 	have 	already been 	asked 	to
increase 	their 	duties 	due 	to 	budget 	cuts.
The 	University 	suggests 	in 	its 	brief 	that 	professional
readers 	without 	other 	academic 	commitments 	and with 	the 	potential
of 	a 	long-term 	regular 	working 	relationship 	would most 	likely
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present 	a 	more 	cost 	effective 	way 	of 	handling 	the 	services 	which
need 	to 	be 	provided by 	readers. 	That 	would, 	however, 	require 	a
drastic 	change 	in 	the 	manner 	in which 	the 	University 	operates.
The 	University 	has 	never 	tried 	that 	approach 	and 	estimates 	about
the 	ease 	with which 	it 	could be 	accomplished 	is 	speculation 	at
best. 	It 	would 	require 	a 	candidate 	pool 	extensive 	enough 	to 	fill
over 	1000 	reader 	positions 	per year 	and 	require 	a 	staggering
array of 	academic 	expertise. 	These 	candidates 	with 	superior
academic 	credentials 	would 	have 	to 	be 	willing 	to 	work 	at 	a 	wage
rate 	of 	approximately 	$9.50 	per 	hour 	(if 	they were 	college
graduates) 	and 	forego 	most 	employment 	benefits. 	They would 	also
have 	to 	have 	schedules 	flexible 	enough 	to 	be 	available 	to 	work 	in
concentrated bursts 	of 	time 	around mid-term 	and 	final 	exams.
Simply put, 	I 	am 	not 	convinced 	that 	the 	University would 	be
successful 	in 	replacing 	student 	employee 	readers 	with 	a 	cadre 	of
permanent 	professional 	staff 	in 	a 	cost 	efficient 	and 	academically
effective 	program.
On 	the 	other 	hand, 	to 	the 	extent 	that 	the 	University 	could
be 	successful 	in 	replacing 	student 	employee 	readers 	with 	a 	non-
student 	professional 	staff, 	that 	supports 	a 	finding 	that 	the
position 	is 	in 	fact 	a 	job 	and 	not 	an 	academic 	exercise.
Furthermore, 	it 	is 	also 	clear 	that 	those 	replacement 	workers
would 	be 	entitled 	to 	representation 	and 	collective 	bargaining
rights 	provided 	by 	coverage 	under 	HEERA.
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For 	the 	above 	reasons, 	I 	find 	that 	the 	educational
objectives 	are 	subordinate 	to 	the 	services 	performed by 	student
employees 	in 	the 	reader 	title.
Tutors-Prong 	One
Assuming, 	for 	the 	sake 	of 	argument 	on 	appeal, 	that 	it 	is
found 	that 	employment 	of 	tutors 	is 	contingent 	upon 	student
status, 	tutors 	should 	still 	be 	covered by 	the 	Act 	because 	their
educational 	objectives 	are 	subordinate 	to 	the 	services 	provided
and 	coverage 	would 	further 	the 	purposes 	of 	the 	Act. 	Unlike
readers, 	there 	is 	a 	direct 	relationship 	between 	the 	services
performed by 	those 	in 	the 	tutor 	classification 	and 	their
educational 	objectives. 	The 	relationship 	is 	more 	direct 	for
those 	in TA positions 	than 	those 	working 	in 	the 	OASIS 	program,
but 	even 	at 	OASIS 	there 	is 	a 	relationship. 	A significant 	number
of 	tutor/TAs 	found 	that 	their 	experience 	helped 	them meet
important 	educational 	objectives 	of 	being 	prepared 	for 	graduate
school 	and 	increasing 	subject 	matter 	knowledge. 	It 	also
increased 	their 	relationships 	with 	faculty, 	resulting 	in 	better
letters 	of 	recommendation, 	and 	added 	significant 	experience 	to
their 	curriculum vitaes. 	For 	those 	who 	were 	exploring 	teaching
as 	a 	career, 	it 	offered one 	of 	the 	most 	directly 	applicable
experiences 	available.
Thus, 	performing 	those 	services, 	there 	is 	value 	to 	the
educational 	objectives 	of 	tutor/TAs. 	There 	is, 	however, 	even
greater value 	to 	the 	University 	in 	having 	those 	services
performed. 	There 	is 	no 	credible 	evidence 	that 	the 	University
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could 	eliminate 	the 	use 	of 	tutor/TAs 	without 	doing 	obvious
irreparable 	damage 	to 	the 	teaching 	mission 	of 	UCSD. 	Speculation
that 	this 	huge 	body of 	work 	could be 	redistributed 	to 	faculty 	is
illogical 	and 	contrary 	to 	the 	evidence 	in 	the 	record. 	There 	is
simply no 	one 	else 	within 	the 	University 	to 	adequately perform
this 	work. 	The 	reason 	the 	positions 	were 	created 	in 	the 	first
place 	was 	that 	it 	was 	literally 	impossible 	for 	the 	faculty 	to
keep 	up 	with 	the 	teaching 	load 	faced 	with 	a 	huge 	influx 	of
students. 	It 	would 	be 	just 	as 	impossible 	now 	as 	it 	was 	then 	for
the 	faculty 	to 	teach 	the 	larger 	number 	of 	students 	without 	the
assistance 	of 	TAs.
Tutor/TAs 	provide 	vital 	services 	not 	only 	in 	the 	classroom.
They 	also 	support 	the 	mission 	of 	UCSD 	through 	the 	OASIS 	program.
Over 	half 	of 	the 	freshman 	class 	have 	relied 	upon 	the 	OASIS
program 	for 	assistance 	during 	their 	first 	year 	at 	UCSD. 	The
OASIS 	program 	also 	plays 	a 	vital 	role 	in 	the 	success 	of 	the
diversity 	and 	retention 	rates 	of 	the 	UCSD 	student 	body.
While 	the 	University does 	utilize 	a 	significant 	number 	of
non-student 	tutor/TAs, 	it 	is 	unlikely 	that 	non-students 	could 	be
relied 	upon 	entirely 	to 	fill 	this 	need. 	As 	with 	readers,
replacement 	of 	student 	employees 	would 	require 	a 	huge 	candidate
pool 	with 	an 	enormous 	range 	of 	academic 	expertise. 	These 	highly
educated 	and 	intelligent 	non-student 	candidates 	would 	have 	to 	be
lling 	to 	work 	at 	a 	rate 	of 	between 	$8.73 	and 	$16.66 	per 	hour
and 	would 	receive 	almost 	no 	benefits. 	If 	they worked 	full-time
their 	pay would 	be 	as 	low as 	$13,600 	and 	would 	top 	out 	at 	$21,400
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per year, 	depending 	upon 	their 	degree. 	If 	they worked 	part-time,
they would 	be 	working 	a 	sporadic 	academic 	schedule 	with 	a 	limited
number 	of 	hours 	spread 	over 	several 	days. 	Such a 	schedule 	would
make 	other 	full-time 	employment 	difficult. 	If 	it 	were 	possible
to 	hire 	enough 	non-student 	tutor/TAs 	to 	replace 	student
employees, 	the 	benefits 	of 	peer 	teaching 	would 	also 	be 	lost.
Given 	the 	small 	percentage 	of 	the 	student 	body 	that 	ever
gets 	to 	experience 	employment 	as 	a 	tutor/TA, 	it 	cannot 	be 	said
that 	the 	experience 	is 	vital 	to 	the 	success 	of 	students. 	It
obviously 	is 	helpful 	and 	enriching, 	but 	not 	vital. 	It 	can,
however, 	be 	said 	that 	the 	services 	provided 	to 	the 	University 	by
the 	tutor/TAs 	are 	clearly vital 	to 	the 	success 	of 	the
University's 	teaching 	mission. 	I 	therefore 	conclude 	that 	the
value 	to 	the 	educational 	objectives 	of 	tutors 	are 	subordinate 	to
the 	value 	of 	the 	services 	to 	the 	University.w
20Two 	possible 	exceptions 	to 	this 	conclusion 	are 	the 	GEP 	and
TEP. 	In 	GEP, 	many 	graduate 	tutors 	are 	paid 	for 	coordination
activities 	of 	GEP 	seminars 	and 	conferences. 	The 	services
provided by 	those 	individuals 	are 	probably 	unrelated 	to 	their
educational 	objectives. 	The 	result 	(coverage 	under 	the 	Act),
however, 	is 	the 	same, 	so 	there 	is 	no 	point 	in 	trying 	to
distinguish which 	tutors 	within 	GEP 	fall 	within 	this 	category. 	A
second possible 	exception 	are 	math 	students 	who 	are 	considering 	a
teaching 	career, 	hired 	by 	TEP 	to 	provide 	math 	tutoring 	local
school 	districts. 	These 	services 	might 	be 	subordinate 	to 	the 	TEP
tutors 	educational 	objectives 	and 	thus, 	not 	appropriate 	for
coverage 	under 	the 	Act. 	There 	was 	testimony, 	however, 	that 	there
were 	no 	employees 	that 	title 	at 	this 	time. 	In Mendocino
Community 	College 	District 	(1980) 	PERB 	Decision No. 	144, 	the
Board 	held 	it 	was 	inappropriate 	to 	decide 	inclusion when 	there
are 	no 	incumbents 	in 	the 	position. 	Such 	a 	determination 	is 	best
deferred 	to 	the 	time 	when 	there 	are 	student 	employees 	in 	the
position 	and 	the 	question 	can 	be 	raised 	by 	an 	appropriate 	unit
modification 	petition.
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Associates-Prong 	One
Employment 	in 	the 	associate 	position meets 	many 	of 	the
stated 	educational 	objectives 	of 	associates. 	It 	gives 	them 	an
opportunity 	to 	increase 	their 	teaching 	skills, 	add 	significant
teaching 	employment 	to 	their 	curriculum vitaes, 	and 	generate
income. 	It 	does 	not 	fulfill 	teaching 	requirements 	of 	the 	degree
programs 	because 	associates 	have 	normally 	already 	fulfilled 	any
such 	requirements 	well 	before 	being 	hired 	as 	an 	associate. 	This
valuable 	work 	experience 	may, 	for 	some 	associates, 	also 	be 	gained
at 	the 	expense 	of 	progress 	toward 	their 	degree.
Employment 	of 	associates 	also 	meets 	many 	of 	the 	service
needs 	of 	the 	University. 	Associates, 	by 	all 	accounts, 	have
complete 	autonomy 	and 	full 	responsibility 	for 	teaching 	a 	course.
They 	perform 	all 	the 	same 	functions 	as 	other 	faculty, 	from
selecting 	textbooks 	to 	designing 	final 	exams. 	They 	also 	utilize
readers 	and 	TAs 	the 	same 	as 	other 	faculty. 	They 	are 	presented 	to
students 	in 	the 	same 	way 	as 	other 	faculty 	from 	how 	they 	are
listed 	in 	the 	catalog 	as 	faculty 	to 	the 	course 	credit 	received by
students. 	From 	the 	point 	of 	view of 	the 	student 	in 	a 	classroom,
the 	predominant 	reason 	for 	the 	associates' 	employment 	is 	the
delivery 	of 	services 	and 	not 	the 	educational 	objectives 	of 	the
associates. 	The 	students 	receiving 	the 	services 	have 	little, 	if
any, 	concern 	or 	knowledge 	about 	the 	educational 	objectives 	of 	the
professor 	at 	the 	front 	of 	their 	class.
Individuals 	employed 	as 	associates 	are, 	according 	to 	Dean
Attiyeh, 	11 virtually qualified 	to 	accept 	a 	regular 	faculty
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appointment 	anywhere. 	II 	The 	only 	completely 	accurate
distinction 	that 	can 	be 	made 	between 	associates 	and 	lecturers 	is
that 	associates 	must 	be 	registered 	students. 	Based 	upon 	this
record, 	it 	may 	not 	even 	be 	an 	accurate 	generalization 	to 	say
lecturers 	have 	greater 	teaching 	experience. 	A steady 	stream 	of
associates 	testified 	about 	their 	extensive 	teaching 	experience,
whether 	it 	was 	with 	private 	music 	clients 	or 	at 	local 	community
colleges.
When 	conflicts 	occur 	between 	their 	teaching 	obligations 	and
their 	academic 	obligations, 	the 	teaching 	duties 	clearly 	take
precedent 	because 	they 	are 	more 	immediate 	and 	involve 	large
numbers 	of 	other UCSD 	students. 	Associates 	have 	committed 	to 	the
assignment 	and 	they 	are 	being 	compensated 	for 	their 	work.
Witnesses 	described 	how 	their 	own 	studies 	were 	reduced 	or
actually 	halted 	during 	their 	time 	as 	an 	associate.
Associates 	have 	no 	formal 	supervision. 	The 	assistance 	they
receive 	is 	informal 	and 	typically 	only 	if 	requested. 	With 	each
new 	class, 	associates 	increase 	their 	teaching 	proficiency, 	as 	is
typical 	of 	any new 	teacher. 	Many professors 	testified 	that 	they
develop 	their 	teaching 	skills 	each 	time 	they 	teach 	a 	course.
Associates 	and 	the 	University 	seem 	to 	have 	a 	very 	successful
symbiotic 	relationship, 	meeting many 	needs 	of 	both parties.
However, 	because 	of 	the 	nature 	of 	the 	services 	provided, 	the
total 	autonomy 	and 	responsibility 	given 	to 	associates, 	the
interchangeability with 	other 	faculty 	such 	as 	lecturers, 	the
extent 	of 	training 	and 	supervision 	received 	by 	associates, 	and
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the 	extremely 	limited 	number 	of 	students 	who 	have 	the 	opportunity
to 	gain 	that 	experience, 	I 	conclude 	that 	the 	educational
objectives 	of 	associates 	are 	subordinate 	to 	the 	services 	they
perform 	for 	the 	University.
Prong 	Two-Coverage 	Will 	Further 	the 	Purposes 	of 	the 	Act
The 	arguments 	applicable 	to 	the 	second prong 	are 	similar 	for
all 	the 	positions 	in 	dispute 	in 	this 	hearing. 	I 	therefore 	do 	not
distinguish 	between 	readers, 	tutors 	and 	associates 	in 	this
portion 	of 	the 	decision.
In 	creating HEERA 	the 	Legislature 	believed 	that 	it 	would 	be
''advantageous 	and 	desirable" 	to 	extend 	PERB's 	jurisdiction 	to 	the
University. 	The 	Legislature 	noted 	that 	the 	people 	of 	the 	State
of 	California 	have 	a 	fundamental 	interest 	in 	the 	development 	of
harmonious 	and 	cooperative 	labor 	relations 	between 	the 	University
and 	its 	employees. 	A harmonious 	labor management 	relationship 	is
necessary 	to 	preserve 	and 	promote 	the 	responsibilities 	granted 	to
the 	University by 	the 	people 	of 	the 	State 	of 	California. 	HEERA
assured 	that 	those 	responsibilities 	would 	be 	carried 	out 	an
atmosphere 	which permits 	the 	fullest 	participation 	by 	employees
in 	the 	determination 	of 	conditions 	of 	employment 	which 	affect
them.
It 	was 	a 	purpose 	of 	the 	Act 	to 	create 	a 	system 	of 	collective
bargaining which 	includes 	an 	impasse 	mechanism 	and 	unfair
practice 	processes. 	It 	was 	also 	a 	purpose 	of 	the 	Act 	to 	preserve
and 	encourage 	joint 	decision 	making 	in 	consultation 	between 	the
administration 	and 	faculty 	or 	academic 	employees. 	The
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Legislature 	also 	reiterated 	the 	State's 	policy of 	encouraging 	the
pursuit 	of 	excellence 	in 	teaching, 	research 	and 	learning 	through
the 	free 	exchange 	of 	ideas 	among 	faculty, 	students 	and 	staff. 	It
also 	provided 	that 	parties 	subject 	to 	HEERA 	shall 	endeavor 	to
preserve 	academic 	freedom.
Extending 	coverage 	to 	student 	employees 	at 	issue 	in 	this
hearing 	will 	create 	the 	opportunity 	for 	them 	to 	participate 	in
collective 	bargaining. 	There 	are 	substantial 	employment 	concerns
affecting 	student 	employees. 	These 	concerns, 	such 	as 	wages,
hours, 	benefits, 	disciplinary procedures, 	and 	grievance
processes, 	are 	all 	amenable 	to 	collective 	negotiations 	and 	will
have 	a 	direct 	and primary 	impact 	on 	the 	employment 	relationship
between 	student 	employees 	and 	the 	University.
The 	Legislature 	has 	already 	determined 	that 	collective
bargaining 	is 	the 	best 	mechanism 	for 	allowing 	employees 	full
participation 	in 	determination 	of 	employment 	conditions 	which
affect 	them. 	Providing 	employees 	the 	opportunity 	for 	such 	full
participation 	is 	also 	one 	of 	the 	most 	effective 	ways 	of 	building
a 	harmonious 	and 	cooperative 	labor management 	relationship.
Coverage 	under 	the 	Act 	will 	also 	extend 	the 	prohibition 	of
certain 	unfair 	labor 	practices 	which 	the 	Legislature 	has
determined 	to 	be 	contrary 	to 	the 	public 	interest. 	Finally,
coverage 	will 	institute 	a 	system 	for 	resolution 	of 	bargaining
impasses 	which 	will 	help 	avoid 	the 	type 	of 	labor 	unrest 	that 	the
University 	has 	experienced 	through 	the 	many 	recognition 	strikes
of 	student 	employees.
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I 	therefore 	conclude 	that 	extending 	coverage 	will 	further
the 	Act's 	purposes 	of 	establishing 	a 	system 	of 	collective
bargaining which 	will 	foster 	a 	harmonious 	labor 	management
relationship, 	and 	encourage 	joint 	decision 	making 	and
consultation 	between 	administration 	and 	academic 	employees.
The 	University 	argues 	that 	both 	PERB 	and 	the 	Court 	in AGSE
had 	recognized 	the 	State's 	policy 	of 	encouraging 	excellence 	in
teaching, 	research, 	and 	learning 	through 	the 	free 	exchange 	of
ideas 	among 	faculty, 	students 	and 	staff, 	as 	an 	additional 	purpose
of 	the 	Act. 	According 	to 	the 	University, 	PERB 	may not 	change
this 	interpretation merely because 	different 	facts 	now present
themselves. 	The 	University argues 	that 	PERB 	is 	not 	free 	to
reinterpret 	the 	purposes 	of 	the 	Act, 	nor 	"constrained 	in
this 	decision 	by 	the 	need 	to 	find 	the 	'correct' 	analysis
of 	legislative 	language, 	since 	that 	has 	already 	been
established. 	II
I 	agree 	with 	only part 	of 	the 	University's 	argument. 	I
agree 	that 	it 	is 	beyond my 	authority 	to 	reinterpret 	the 	purposes
of 	the 	Act 	as 	found 	by 	PERB 	and 	the 	Court 	in AGSE. 	In 	order 	to
extend 	coverage 	to 	the 	disputed 	positions, 	coverage 	must
encourage 	excellence 	wi 	the 	University. 	However, 	I 	do 	not
feel 	constrained 	from 	looking 	at 	the 	facts 	in 	this 	record 	and
reaching 	a 	conclusion 	that 	coverage 	will 	encourage 	such
excellence.
In 	determining 	that 	excellence 	within 	the 	University will 	be
encouraged by 	extending 	coverage, 	I 	will 	review 	several 	factors
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such 	as 	its 	impact 	on 	the 	free 	flow 	of 	information, 	the 	student
faculty 	mentor 	relationship, 	the 	disruption 	of 	work 	stoppages,
problems 	separating 	employment 	from 	academic 	issues, 	potential
damage 	to 	the 	stature 	of 	the 	University, 	issues 	of 	intermittent
employees, 	and 	the 	potential 	strain on 	the 	University's 	limited
resources.
Freeflow 	of 	Information
Collective 	bargaining, 	as 	envisioned under 	the 	law, 	will
produce 	a 	greater 	flow 	of 	information 	and 	free 	exchange 	of 	ideas
than 	a 	situation where 	employees 	are 	unrepresented. 	Union
witnesses 	testified 	about 	the 	democratic 	participation 	of 	unit
members 	in 	the 	development 	of 	issues 	and 	proposals.
Representative 	bargaining 	teams 	are 	selected. 	Surveys 	are 	taken
among 	their 	membership 	to 	ensure 	that 	concerns 	of 	student
employees 	are 	voiced 	to 	management. 	Mutual 	bargaining
obligations 	will 	ensure 	that 	the 	employment 	concerns 	of 	both
parties 	have 	a 	forum 	for 	expression.
This 	increase 	in 	the 	free 	flow 	of 	information 	through 	the
bargaining process 	does 	not 	typically 	diminish 	communications
between 	individual 	students 	and 	individual 	faculty 	members. 	The
University 	has 	cited one 	instance 	where 	communication may 	be
reduced 	among 	some 	student 	committees 	at 	UC 	Berkeley. 21 	In 	that
one 	instance, 	the 	University proposed 	to AGSE 	at 	the 	bargaining
21 Both Dean 	Duggan 	and UAW 	International 	Representative 	Mary
Ann 	Massenburg 	testified 	regarding 	this 	instance. 	Where 	their
testimony 	conflicts, 	I 	credit 	Massenburg. 	This 	is 	not 	because
Duggan's 	testimony 	is 	unreliable, 	but 	rather 	because 	Massenburg
provided 	a 	more 	complete 	explanation.
109

table 	that 	the 	University would 	continue 	to 	meet 	and 	discuss
negotiable 	terms 	and 	conditions 	of 	employment 	with 	other
committees 	which 	included 	bargaining unit 	members. 	AGSE 	rejected
that 	proposal.
It 	is 	a 	reasonable 	and 	legitimate 	concern 	on 	the 	part 	of 	any
union 	that 	the 	employer 	bargain with 	the 	exclusive
representative. 	If 	bypassing 	the 	union 	on 	negotiable 	issues 	were
evidence 	of 	a 	restriction 	in 	the 	free 	flow 	of 	information under
the 	Act, 	the 	Legislature 	would 	not 	have 	adopted 	the 	concept 	of
exclusive 	representation, 	and 	bargaining 	throughout 	the
University would 	be 	eliminated. 	I 	therefore 	reject 	this 	as 	an
example 	of 	a 	negative 	impact 	of 	collective 	bargaining 	and 	find
that 	the 	collective 	bargaining process 	will 	increase 	the 	free
flow 	of 	information.
Mentor 	Issues
A factor 	weighing 	heavily 	in 	the 	AGSE 	decision 	was 	the
potential 	impact 	of 	collective 	bargaining on 	the 	mentor
relationship. 	The 	record 	in 	this 	case 	does 	not 	support 	a
conclusion 	that 	collective 	bargaining will 	damage 	mentor
relationships.
The 	mentor 	relationship, 	which 	is 	crucial 	to 	education 	at
the 	University, 	and 	about 	which 	numerous 	University 	witnesses
testified, 	is 	limited 	primarily 	to 	the 	relationship 	between 	a
graduate 	student 	a 	ssertat 	committee 	chair, 	or 	sometimes
a 	committee 	member. 	Any 	impact 	upon 	that 	relationship 	by
110

establishment 	of 	the 	requested 	bargaining 	unit 	is 	virtually 	non-
existent.
It 	was 	extremely 	rare 	for 	the 	same 	individuals 	to 	have 	been
in 	both 	an 	employee-supervisor 	relationship 	and 	a 	student-faculty
mentor 	relationship. 	While 	there 	were 	many 	examples 	of 	student
employees 	seeking 	out 	certain 	faculty 	members 	for 	advice,
guidance, 	specific 	knowledge 	or 	letters 	of 	recommendation, 	these
relationships 	did 	not 	amount 	to 	the 	intensity of 	a 	true 	mentor
relationship. 	A good 	example 	of 	this 	was 	the 	relationship
between Victor Vendovato22 and 	Professor 	Paul 	Saltman. 	Saltman
is 	highly 	respected 	as 	a 	professor 	and 	appears 	truly 	dedicated 	to
enhancing 	the 	learning 	opportunities 	for 	TAs. 	He 	meets 	with 	them
regularly, 	emphasizing 	teaching 	skills 	as 	well 	as 	substantive
knowledge. 	His 	approach 	is 	collegial 	rather 	than 	authoritative.
Vendovato 	volunteered 	to 	be 	a 	TA with 	Saltman without 	pay 	after
he 	had 	already graduated, 	just 	for 	the 	additional 	learning
experience. 	This 	is 	one 	of 	the 	clearest 	examples 	of 	a 	potential
mentor 	relationship 	between a 	faculty 	member 	and 	an 	undergraduate
TA. 	While 	Vendovato 	learned a 	great 	deal 	from 	Saltman, 	the
relationship 	did 	not 	approach 	a 	true 	mentor 	relationship. 	When
Vendovato 	first 	applied 	for 	graduate 	school, 	for 	example, 	he 	did
not 	even 	seek 	a 	letter 	of 	recommendation 	from 	Saltman.· 	Instead,
22Vendovato 	was 	a 	TA 	twice 	for 	Saltman; 	once 	for 	credit
during 	the 	initial 	training 	quarter 	and 	once 	as 	a 	non-student,
non-paid 	volunteer. 	As 	such, 	he 	was 	never 	in 	a 	position 	included
within 	the 	petition. 	His 	experience 	is, 	nevertheless, 	a 	good
reflection 	of 	student 	faculty 	mentor 	issues, 	even 	if 	he 	is 	not
included 	in 	the 	petition 	and 	is 	not 	reflective 	of 	employment
issues.
111

he 	used 	two 	other 	professors 	for 	whom 	he 	had worked 	as 	a
researcher 	and 	his 	tennis 	coach.
Other 	readers 	and 	TAs 	do 	ask 	Saltman 	for 	letters 	of
recommendation. 	He 	writes 	about 	200 	per year, 	a 	fact 	which 	also
indicates 	that 	the 	relationships 	are 	not 	of 	the 	depth 	described
by University witnesses 	as 	crucial 	mentor 	relationships. 	It
would 	be 	impossible 	to 	be 	that 	type 	of 	a 	mentor, 	offering
intense, 	lifelong 	guidance 	to 	200 	new 	students 	per 	year.
Even 	if 	there 	were 	evidence 	that 	a 	large 	number 	of 	mentor
relationships 	overlapped with 	employment 	relationships, 	extending
coverage 	would 	not 	damage 	those 	relationships. 	Conversely
denying 	coverage 	would 	not 	enhance 	the 	relationships. 	Potential
conflict 	is 	a 	natural 	part 	of 	any 	relationship, 	be 	it 	employer-
employee, 	or 	a 	faculty-student 	relationship. 	As 	stated by 	Dr.
Hecker:
The 	problems 	that 	a 	contract 	addresses 	are
not 	going 	to 	go 	away. 	If 	graduate 	assistants
are 	overworked, 	if 	graduate 	assistants 	don'-t
have 	health 	insurance, 	if 	jobs 	are 	given
arbitrarily, 	if 	graduate 	assistants 	are
dismissed without 	just 	cause, 	you're 	going
to 	have 	an 	angry 	bunch 	of 	graduate
assistants 	. 	graduate 	assistants 	who 	are
less 	angry 	and 	less 	concerned because 	their
issues 	[are] 	covered by a 	contract 	are
probably more 	likely 	to 	be 	better 	teachers,
more 	likely 	to 	be 	able 	to 	focus 	better 	on 	the
research 	they 	do, 	whatever 	their
responsibilities 	are. 	Problems 	aren't 	going
to 	go 	away 	just 	because 	there 	may 	not 	happen
to 	be 	a 	collective 	bargaining 	agreement
someplace. 	Those 	problems 	have 	to 	be
resolved 	and 	this 	is 	the 	best 	way 	to 	resolve
them.
112

Having 	greater 	clarity about 	the 	parameters 	of 	the
employment 	relationship, 	brought 	about 	by 	a 	collective 	bargaining
agreement, 	will 	tend 	to 	avoid potential 	conflict 	between 	students
and 	faculty 	rather 	than 	create 	it. 	Numerous 	witnesses 	called 	by
both 	the 	University 	and 	the 	Petitioner, 	testified 	that 	greater
clarity 	of 	the 	rules 	of 	employment 	are 	extremely helpful 	in
avoidance 	of 	conflict. 	While 	such 	guidelines 	might 	be
accomplished 	through 	a 	good 	faculty 	handbook 	or 	good personnel
policy manual, 	providing 	employees 	with 	greater 	input 	into 	the
issues 	and 	decisions 	tends 	to 	make 	any 	such 	document 	more
effective 	than 	one 	unilaterally developed. 	The 	dialogue 	of
collective 	bargaining 	can 	help 	develop 	a 	better 	roadmap 	for
problem 	avoidance 	between 	faculty 	mentors 	and 	student 	employees.
Most 	disputes 	of 	any 	sort 	between 	faculty 	and 	student,
either 	academic 	or 	employment, 	are 	settled 	informally 	at 	early
stages 	where 	it 	is 	to 	the 	advantage 	of 	both 	parties 	to 	avoid
escalation. 	This 	is 	true 	regarding 	all 	of 	the 	other 	bargaining
relationships 	examined 	at 	the 	hearing. 	Only a 	minute 	number 	of
disputes 	ever made 	it 	to 	the 	final 	stages 	of 	whichever 	conflict
resolution process 	was 	being 	utilized. 	This 	hardly 	supports 	the
University's 	argument 	that 	one 	of 	the 	most 	fundamental 	aspects 	of
graduate 	education, 	the 	student 	faculty 	mentor 	relationship, 	will
be 	damaged 	because 	student 	employees 	will 	have 	the 	opportunity 	to
negotiate 	wi 	faculty 	members 	and 	administrators 	at 	the
bargaining 	table, 	and 	possibly 	confront 	them 	through 	a 	negotiated
grievance 	procedure.
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Student 	employees 	are 	no 	doubt 	aware 	of 	the 	potential
precarious 	nature 	of 	their 	relationship 	with 	faculty, 	and 	the
tremendous 	advantage 	of 	maintaining 	a 	positive 	relationship 	with
someone 	on whom 	they may 	rely 	for 	entrance 	into 	graduate 	school
or 	in 	establishing 	their 	careers. 	Regardless 	of 	the 	nature 	of
any 	collective 	bargaining 	grievance 	process 	ultimately 	agreed
upon, 	it 	is 	unlikely 	that 	coverage 	under HEERA will 	unleash 	a
frenzy 	of 	grievances 	by 	student 	employees 	against 	their 	mentors.
The 	fear 	that 	collective 	bargaining 	could 	restrict, 	in 	any
way, 	the 	hiring 	process 	and 	therefore 	impact 	the 	mentor
relationship, 	does 	not 	justify denying 	coverage. 	There 	currently
exists 	many 	restrictions 	in 	the 	hiring 	process 	that 	do 	not 	do
damage 	to 	those 	relationships. 	For 	example, 	students 	must 	have 	a
3.0 	GPA. 	They must 	have 	taken 	the 	course 	and 	received 	an A.
Graduate 	students 	have 	priority over 	undergraduate 	students.
They 	cannot 	work 	more 	than 	50 	percent, 	etc. 	Fears 	that
collective 	bargaining would 	lead 	to 	student 	faculty 	mentor
relationships 	based upon 	seniority 	are 	unjustified. 	That 	has 	not
been 	the 	result 	at 	any 	other University where 	bargaining 	has
occurred, 	nor 	would 	HEERA ever 	compel 	the 	University 	to 	agree 	to
such 	a 	proposal.
Even 	in 	situations 	where 	grievances 	are 	increased 	and 	the
rhetoric 	is 	ratcheted 	up 	in 	efforts 	to 	build 	solidarity 	for
upcoming 	bargaining, 	those 	disputes 	typically 	are 	not 	the 	sort 	of
activities 	which 	will 	directly 	impact 	individual 	faculty 	student
mentor 	relationships.
114

The 	University 	offered 	the 	testimony 	of 	Dean Duggan 	at
Berkeley 	to 	show 	how 	collective 	bargaining 	strained 	the
relationship 	between 	Duggan, 	a 	University 	spokesperson 	during 	one
of 	the 	previous 	student 	employee 	strikes, 	and Andy 	Kahl, 	a
spokesperson 	for 	AGSE 	when 	they were 	out 	on 	strike. 	This
obviously 	created 	strain 	in 	their 	relationship. 	However, 	this
example 	does 	not 	support 	the 	University's 	position 	for 	two
reasons. 	First, 	Duggan 	and 	Kahl 	were 	able 	to 	re-establish 	their
relationship 	after 	the 	strike. 	Duggan 	continued 	as 	a 	member 	of
Kahl's 	committee 	and 	continued 	reading 	his 	dissertation,
eventually 	leading 	to 	Kahl's 	Ph.D. 	Even more 	fundamentally
however, 	is 	that 	the 	conflict 	in 	that 	situation 	(the 	student
employee 	strike) 	was 	not 	a 	result 	of 	collective 	bargaining.
Exactly 	the 	opposite 	was 	true. 	The 	strike 	occurred because 	the
University was 	refusing 	to 	recognize 	AGSE 	and 	engage 	in
collective 	bargaining. 	The 	strike 	and 	the 	resulting 	strain 	on
the 	Duggan/Kahl 	relationship 	was 	a 	direct 	result 	of 	the 	lack 	of
collective 	bargaining, 	not 	the 	existence 	of 	collective
bargaining.
Finally, 	several 	University witnesses 	expressed 	fears 	that
collective 	bargaining 	in 	general, 	and 	a 	formal 	grievance 	process
particular, 	would 	ultimately damage 	the 	student 	faculty
relationship 	because 	faculty 	members 	might 	retaliate 	against
students 	if 	they 	filed 	grievances. 	Witnesses 	suggested 	that
students 	would 	ultimately be 	better 	served 	if 	disputes 	were
resolved 	informally within 	the 	academic 	family. 	If 	a 	formal
115

determination was 	made 	or 	a 	decision 	issued by 	an 	arbitrator 	that
concluded 	that 	a 	faculty 	member 	had 	acted 	inappropriately,
illegally, 	or 	contrary 	to 	provisions 	of 	a 	contract, 	that 	faculty
member 	might 	retaliate 	academically 	against 	the 	student. 	Since
faculty 	members 	play 	such 	a 	vital 	role 	to 	the 	success 	of
students, 	the 	student 	would 	ultimately be 	the 	loser, 	according 	to
these 	witnesses.
The 	argument 	that 	rights 	should be 	denied 	to 	individuals
because 	those 	in power, 	when 	confronted with 	their 	alleged
misdeeds, 	might 	retaliate 	against 	those 	not 	in 	power, 	has 	rarely
been 	persuasive. 	At 	best, 	this 	argument 	is 	paternalistic 	and 	is
based upon 	a 	fear 	of 	confrontation, 	rather 	than 	a 	realistic
assessment 	of 	the 	impact 	of 	collective 	bargaining. 	It 	may 	be
more 	comfortable 	for 	faculty 	members 	to 	avoid 	being 	confronted
with 	alleged 	misdeeds 	or 	to 	avoid 	final 	determinations 	made
against 	them. 	However, 	some 	discomfort 	and 	education may be
necessary 	to 	fairly 	resolve 	contested 	issues. 	There 	is 	no
justification 	for 	denying 	individuals 	rights 	in 	order 	to 	avoid 	an
improper 	or 	illegal 	overreaction 	by other 	individuals 	opposed 	to
those 	rights. 	Such 	actions 	are 	typically 	counterproductive 	and
are 	an 	ineffective 	method 	of 	resolving 	disputes 	regardless 	of
their 	nature.
To 	the 	extent 	that 	the 	fears 	expressed 	are 	realistic,
however, 	and 	faculty 	might 	actually 	retaliate 	against 	student
employees, 	that 	dramatically 	underscores 	the 	rather 	superficial
nature 	of 	the 	relationship 	to 	begin with. 	It 	also 	vividly
116

demonstrates 	the 	potential 	need 	for 	representation 	and 	greater
protection.
Work 	Stoppages
The 	occurrence 	of 	strikes 	and 	the 	potential 	for 	strikes 	was
raised 	by 	several 	witnesses. 	While 	strikes 	among 	student
employees 	in 	a 	recognized 	bargaining 	unit 	have 	occurred 	as
negotiation pressure 	tactics 	(at 	the 	University 	of 	Michigan 	for
example) 	they 	are 	rare. 	Most 	of 	the 	strikes 	referred 	to 	by
witnesses 	in 	this 	hearing 	occurred 	as 	a 	demand 	for 	recognition.
Recognition 	strikes 	have 	occurred 	at 	UC 	Berkeley at 	least 	twice,
at 	UC 	Santa 	Cruz 	twice, 	and 	at 	UCLA and UCSD.
Work 	stoppages 	are, 	by 	the 	accounts 	of 	most 	witnesses, 	one
of 	the 	most 	disruptive 	and 	adversarial 	aspect 	of 	the 	labor
management 	relationship. 	They 	not 	only have 	the 	potential 	to
strain 	relationships 	between 	an 	employee 	and 	a 	supervisor, 	but 	in
a 	University 	setting, 	they 	have 	crucial 	additional 	negative
impacts. 	Student 	employee 	strikes 	can 	pit 	faculty 	against
faculty 	and 	can 	drive 	a 	wedge 	between 	some 	faculty 	and 	the
administration. 	It 	can 	also 	be 	very 	disruptive 	to 	the
educational 	process 	of 	members 	of 	the 	bargaining unit, 	whether 	or
not 	they 	honor 	the 	strike. 	Strikes 	can 	also 	draw 	harsh 	reaction
from 	the 	public 	at 	large. 	At 	a 	time 	when 	the 	University 	is
continually under 	siege 	regarding 	budget 	issues 	and 	under 	intense
public 	scrutiny 	for 	a 	myriad 	of 	other 	reasons, 	strikes 	send 	a
decidedly wrong 	message 	to 	the 	community.
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Finally and 	most 	important, 	strikes 	are 	enormously
disruptive 	to 	the 	educational 	process 	of 	other 	university
students. 	Most 	students, 	and particularly undergraduate 	students
because 	of 	the 	tremendous 	cost 	of 	their 	education, 	are 	faced 	with
a 	very 	limited window 	of 	opportunity 	for 	completing 	their
coursework. 	One 	quarter 	is 	a 	very 	short 	period 	of 	time 	for
students 	to 	absorb 	a 	huge 	volume 	of 	information. 	Even 	a 	strike
of 	short 	duration, 	causing 	the 	loss 	of 	only a 	few 	section
meetings, 	can 	amount 	to 	a 	major 	setback 	for 	students 	and 	have
ramifications 	beyond 	that 	particular 	quarter. 	While 	perhaps 	not
as 	important 	to 	many 	students, 	delays 	in 	submission 	of 	grades 	can
also 	be 	crucial.
Strikes 	are 	a 	breakdown 	in 	the 	labor management 	relationship
and 	can 	result 	in 	a 	fundamental 	disruption 	of 	the 	educational
process. 	Probably more 	than 	any 	other 	aspect 	of 	the 	labor
management 	relationship, 	they 	disrupt 	the 	"pursuit 	of 	excellence
in 	teaching, 	research, 	and 	learning 	through 	the 	free 	exchange 	of
ideas 	among 	the 	faculty, 	students, 	and 	staff 	11
While 	the 	record 	is 	not 	completely 	clear, 	it 	appears 	that 	there
have 	been more 	student 	employee 	strikes 	at 	the 	University 	than
the 	combined 	total 	of 	all 	the 	other 	universities 	from 	which
witnesses 	testified 	at 	the 	hearing. 	Given 	the 	fact 	that 	student
employee 	unions 	do 	not 	typically 	have 	the 	opportunity 	to
negotiate 	over 	academic 	issues, 	providing 	a 	mechanism 	for 	the
avoidance 	of 	strikes 	is 	an 	effective 	way 	to 	encourage 	excellence
within 	the 	University's 	mission.
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The 	Legislature 	recognized 	how damaging 	strikes 	can be 	to
the 	excellence 	of 	the 	University 	and 	its 	mission. 	It 	included 	a
multi-step 	dispute 	resolution 	process, 	which 	involves 	the
assistance 	of 	mediation, 	a 	factfinding 	process, 	and 	post
factfinding 	mediation. 	The 	Supreme 	Court 	recognized 	the 	value 	of
that 	process 	in 	San 	Diego 	Teachers 	Association23 	and 	Regents,
where 	it 	stated:
The 	University also 	argues 	that 	permitting
collective 	bargaining 	for 	housestaff 	may 	lead
to 	strikes. 	However, 	it 	is 	widely 	recognized
that 	collective 	bargaining 	is 	an 	alternative
dispute 	resolution mechanism which 	diminishes
the 	probability 	that 	vital 	services 	will 	be
interrupted. 	[Citation.]
(Regents 	at 	p. 	623.)
The 	University urges 	in 	its 	brief 	that 	extending 	coverage 	to
student 	employees 	will 	not 	guarantee 	the 	absence 	of 	strikes.
That 	is 	absolutely 	true. 	As 	recognized 	by 	the 	Supreme 	Court, 	it
will, 	however, 	reduce 	the 	likelihood of 	strikes. 	Furthermore,
the 	University's 	denial 	of 	bargaining 	rights 	to 	student 	employees
has 	over 	the 	past 	decade 	almost 	guaranteed 	the 	presence 	of
strikes. 	As 	a 	policy 	to 	avoid 	the 	disruption 	of 	work 	stoppages,
denying 	collective 	bargaining 	rights 	to 	student 	employees 	has
failed.
I 	therefore 	conclude 	that 	extending 	coverage 	to 	the
employees 	in 	question 	diminishes 	the 	likelihood 	of 	strikes.
Obligating 	the 	parties 	to 	participate 	in 	the 	mediatory 	influence
of 	the 	HEERA 	impasse 	procedures 	will 	not 	only 	help 	develop 	a
~San 	Diego 	Teachers 	Association v. 	Superior 	Court 	(1979)
24 	Cal.3d 	1 	[154 	Cal.Rptr. 	893].
119

harmonious 	and 	cooperative 	labor management 	relationship, 	but
will 	encourage 	the 	pursuit 	of·excellence 	in 	teaching, 	research,
and 	learning 	through 	the 	free 	exchange 	of 	ideas 	among 	the
faculty, 	students, 	and 	staff.
Academic 	Versus 	Economic 	Issues
The 	belief 	that 	it 	is 	impossible 	to 	successfully 	separate
academic 	from 	economic 	issues 	is 	no 	longer 	accurate 	based 	on 	the
record 	in 	this 	case. 	Witnesses 	for 	the 	Petitioner 	testified 	that
parties 	have 	been 	able 	to 	separate 	academic 	from 	employment
disputes 	and 	offered 	examples 	of 	where 	they were 	able 	to 	do 	that.
University 	witnesses 	testified 	that 	it 	is 	difficult 	to 	separate
academic 	from 	employment 	issues.
The 	conclusion 	I 	draw 	from 	this 	record 	is 	that 	although 	it
may 	be 	hard 	work, 	it 	is 	possible 	to 	distinguish 	between 	the 	two,
and 	therefore 	fears 	of 	overlap 	between 	academic 	and 	employment
issues 	are 	not 	a 	legitimate 	reason 	for 	denying 	coverage 	under
HEERA.
Many of 	the 	collective 	bargaining 	agreements 	entered 	into
evidence 	in 	this 	hearing, 	along 	with 	the 	negotiating 	proposals
for 	the 	AGSE 	unit 	at 	UC 	Berkeley, 	contain 	either 	explicit
limitations 	on 	the 	authority 	of 	arbitrators 	regarding 	academic
issues 	or 	express 	reservation 	of 	University 	authority 	regarding
academic 	matters. 	Even 	the 	University's 	own 	conflict 	resolution
process 	(APM 	140) 	and University proposals 	at 	the 	UC 	Berkeley
bargaining 	table 	draw 	a 	distinction 	between 	academic 	and
employment 	issues.
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Other 	university 	employers 	passionately defend 	their
exercise 	of 	academic 	discretion. 	For 	them 	it 	appears 	to 	be 	the
line 	drawn 	in 	the 	sand. 	The 	University of 	Oregon 	is 	a 	good
example. 	There, 	Dean Upham 	clearly 	takes 	a 	collaborative
approach 	to 	collective 	bargaining. 	Of 	the 	approximately 	35
formal 	grievances 	filed 	during 	his 	tenure 	as 	dean, 	not 	a 	single
one 	has 	gone 	to 	arbitration. 	His 	philosophy 	is 	that
confrontations 	are 	not 	in 	anyone's 	best 	interest. 	His 	exception
to 	this 	philosophy, 	however, 	is 	when 	the 	issues 	at 	hand 	are
fundamental 	to 	the 	University's 	exercise 	of 	academic 	discretion.
When 	such 	issues 	arise, 	the 	University becomes 	intractable,
refusing 	to 	relinquish 	these 	rights. 	Dr. 	Julius 	testified 	that
universities 	would probably be 	even more 	resistant 	to 	giving 	in
to 	student 	employee 	unions 	than 	they would 	with 	faculty 	units.
Even 	Dr. 	Craig, 	clearly 	the 	most 	anti-union, 	anti-collective
bargaining witness 	in 	the 	hearing, 	acknowledged 	that 	there 	were
no 	provisions 	in 	their 	collective 	bargaining 	agreement 	that 	she
felt 	infringed upon 	or 	negatively 	impacted 	the 	academic 	program
at 	the 	University of 	Wisconsin.
The 	University of 	Michigan 	refused 	to 	bargain 	over 	an 	issue
that 	it 	felt 	infringed upon 	its 	academic 	discretion. 	It 	spent
several 	years 	litigating 	the 	issue 	and ultimately prevailed.
That 	not 	only demonstrates 	how 	universities 	have 	been 	able 	to
identify 	academic 	issues, 	but 	shows 	they 	have 	not 	rolled 	over 	and
played 	dead when 	their 	academic 	discretion 	is 	threatened. 	It
also 	demonstrates 	that 	if 	and 	when 	the 	parties 	are 	unable 	to
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resolve 	their 	differences 	regarding 	which 	issues 	are 	bargainable,
there 	are 	other 	appropriate 	forums 	for 	resolving 	such disputes.
As 	noted 	in 	Regents:
These 	scope-of-representation 	issues 	may be
resolved 	by 	the 	Board when 	they 	arise, 	since
it 	alone 	has 	the 	responsibility 11 [t]o
determine 	in 	disputed 	cases 	whether 	a
particular 	item 	is 	within 	or without 	the
scope 	of 	representation."
Disputes 	over 	the 	scope 	of 	representation 	are 	manageable
issues. 	PERB 	and 	the 	courts 	have 	resolved 	literally 	hundreds 	of
scope 	of 	representation 	disputes 	since 	collective 	bargaining
obligations 	were 	extended 	to 	California's 	more 	than 	1100 	public
school 	employers 	almost 	twenty years 	ago. 	The 	potential 	for
scope 	of 	representation 	disputes 	is 	not 	a 	reason 	to 	deny
coverage, 	given 	the 	dispute 	resolution 	mechanisms 	available 	to
the 	parties. 24
Potential 	Damage 	to 	Stature 	of 	the 	University
Another 	issue 	relied 	upon 	in 	the 	AGSE 	decision was 	the 	fear
that 	collective 	bargaining would 	damage 	the 	stature 	of 	the
institution 	and 	affect 	its 	ability 	to 	attract 	and 	retain 	the 	most
able 	and 	productive 	faculty 	and 	graduate 	students. 	There 	is 	no
credible 	evidence 	whatsoever 	in 	this 	record 	that 	would 	support
such 	a 	finding. 	The 	only 	such 	evidence 	offered was 	from 	Dr.
Craig who 	repeated 	second 	hand 	speculation 	that 	$9.00 	per month
union 	dues 	might 	dissuade 	graduate 	students 	from 	choosing 	the
University 	of 	Wisconsin. 	Her 	fears 	are 	undermined 	by 	her 	other
24The 	same 	holds 	true 	for 	other 	concerns 	raised 	by 	the
University 	such 	as 	disputes 	over 	unit 	work, 	hours, 	etc.
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testimony 	that 	the 	University of 	Wisconsin was 	the 	first
University 	in 	the 	country 	to 	negotiate 	a 	collective 	bargaining
agreement 	with graduate 	student 	employees 	and 	that 	it 	remains 	to
this 	day 	a 	world 	class 	university with 	an 	outstanding 	reputation.
A mature 	bargaining 	relationship 	providing 	a 	collective
bargaining 	agreement 	with 	clarity over 	terms 	and 	conditions 	of
employment 	would probably be 	more 	of 	an 	enhancement 	to 	potential
student 	employees, 	rather 	than 	a 	deterrent. 	It 	is 	also 	difficult
to 	believe 	that 	granting 	coverage 	to 	student 	employees 	in 	this
case 	would 	affect 	the 	University's 	ability 	to 	attract 	and 	retain
the 	most 	able 	and 	productive 	faculty, 	since 	faculty 	themselves
are 	covered 	under 	HEERA.
The 	most 	likely 	scenario, 	since 	this 	petition 	involves
overwhelmingly undergraduate 	students, 	is 	that 	this 	will 	be 	a
non-issue 	having 	no 	impact 	whatsoever 	in 	either 	direction.
Part-time/Intermittent 	Employee 	Issues
There 	was 	some 	testimony 	by University witnesses 	that
representation 	of 	part-time 	or 	intermittent 	employees 	will 	be
ineffectual 	and 	create 	discontinuity. 	This 	was 	rebutted 	by 	union
witnesses 	who 	gave 	examples 	in 	other 	industries 	where 	such
representation 	can 	be 	very 	effective. 	Furthermore, 	there 	are
ample 	examples 	within 	the 	field 	of 	education where 	part-time 	or
intermittent 	employees 	have 	been 	represented 	in 	a 	successful
manner.
In 	Unit 	Determination 	for 	Employees 	of 	the 	California 	State
University 	and 	Colleges 	(1981) 	PERB 	Decision No. 	173 	H, 	PERB
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found 	a 	comprehensive 	unit 	of 	faculty, 	including 	all 	full-time
and 	part-time 	instructors, 	tenured 	and 	non-tenured, 	as 	well 	as
coaches 	and 	librarians, 	to 	be 	appropriate 	for 	meeting 	and
conferring under 	HEERA. 	PERB 	has 	also 	established 	separate 	units
of 	part-time 	faculty 	in Mendocino 	Community College 	District,
supra, 	PERB 	Decision No. 	144 	and 	Long 	Beach 	Community 	College
District 	(1989) 	PERB 	Decision No. 	765.~ 	Additionally, 	in
at 	least 	three 	districts, 	the 	Board 	found 	a 	separate 	bargaining
unit 	of 	per 	diem 	substitute 	teachers 	appropriate 	under 	EERA.
(Oakland Unified 	School 	District 	(1979) 	PERB 	Decision No. 	102 	and
Palo 	Alto 	Unified 	School 	District/Jefferson Union High 	School
District 	(1979) 	PERB 	Decision No. 	84.) 	Finally, 	substitute,
temporary, 	hourly, 	adult 	education 	and 	summer 	school 	employees
have 	been 	consistently 	included by 	PERB 	within 	bargaining
units.M
It 	should 	also 	be 	noted 	that 	if 	student 	employees 	feel 	that
collective 	bargaining may 	be 	ineffective, 	nothing 	compels 	them 	to
exercise 	their 	right 	to 	select 	an 	exclusive 	representative. 	This
25 Part-time 	faculty 	were 	included by 	PERB 	in 	units 	with 	full-
time 	faculty 	in 	Hartnell 	Community 	College 	District 	(1979) 	PERB
Decision 	No. 	81 	and Marin 	Community 	College 	District 	(1978) 	PERB
Decision 	No. 	64; 	adult 	education 	teachers 	were 	included 	in 	the
faculty 	unit 	in 	Glendale 	Community 	College 	District 	(1979) 	PERB
Decision 	No. 	88; 	and 	summer 	school 	faculty 	were 	included 	in 	the
faculty 	unit 	in Mt. 	San Antonio 	Community 	College 	District 	(1983)
PERB 	Decision No. 	297.
Msee, 	e.g., 	Redwood 	City 	Elementary School 	District 	(1979)
PERB 	Decision 	No. 	107; 	El 	Monte 	Union High 	School 	District 	(1980)
PERB 	Decision No. 	142; 	Dixie 	Elementary 	School 	District 	(1981)
PERB 	Decision No. 	171; 	Palo 	Alto 	Unified 	School 	District 	(1983)
PERB 	Decision No. 	352; 	Fairfield-Suisun Unified 	School 	District
(1983) 	PERB 	Decision No. 	370.
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decision 	deals 	with 	the 	question 	of 	whether 	student 	employees
have 	the 	right 	to 	choose 	to 	be 	represented, 	not 	the 	wisdom 	of
whatever 	choice 	they may make.
One 	other 	issue 	regarding 	intermittent 	employment 	was 	the
concern 	that 	establishment 	of 	a 	bargaining unit 	might 	create 	two
classes 	of 	employees, 	one 	covered 	and one 	not 	covered. 	Yet 	the
University 	has 	already 	created 	two 	classes 	in 	the 	disputed
positions. 	For 	example, 	some 	student 	employees 	have 	GSHIP,
others 	do 	not. 	Some 	have 	fee 	remissions, 	others 	do 	not. 	These
differences 	do 	not 	seem 	to 	have 	created 	insurmountable 	problems
for 	the 	University 	or 	its 	student 	employees.
Limited 	Resources 	of 	the 	University
Another 	reason 	urged by 	the 	University 	for 	denying 	coverage
was 	that 	bargaining would put 	increased 	strain on 	the 	limited
resources 	of 	the 	University. 	This 	strain would 	be 	caused by 	the
increased 	staff 	time 	necessary 	to 	engage 	in 	collective 	bargaining
and 	contract 	administration. 	It 	would, 	according 	to 	University
witnesses, 	also 	result 	from 	the 	demands 	of 	the 	Petitioner 	for
better wages 	and 	benefits. 	Any 	increases 	granted 	to 	unit 	members
would 	have 	to 	be 	taken 	from 	other 	academic 	programs, 	according 	to
the 	University.
If 	this 	were 	a 	legitimate 	reason 	for 	denying 	collective
bargaining 	rights 	to 	employees, 	there 	would 	not 	be 	a 	single 	unit
in 	existence, 	either 	the 	public 	or private 	sectors. 	Arguments
that 	union 	demands 	will 	create 	a 	financial 	burden upon 	the
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University 	are 	entirely 	appropriate 	at 	the 	bargaining 	table, 	but
are 	not 	reasons 	to 	deny 	coverage 	under HEERA.
Erosion 	of 	the 	Status 	Quo
Another 	University 	argument 	is 	that 	public 	pressure 	and 	a
strong 	desire 	to 	resolve 	conflict 	with 	its 	students 	will 	lead 	the
University 	to 	give 	in 	on 	crucial 	issues 	which may 	erode 	the
academic 	and 	administrative 	status 	quo 	which 	currently 	supports
excellence 	at 	the 	University. 	This 	argument 	is 	a 	bit 	like 	asking
PERB 	to 	deny 	coverage 	to 	employees 	in 	order 	to 	protect 	the
University 	from 	its 	own 	lack 	of 	will, 	bargaining 	strength 	or
persuasive 	ability 	at 	the 	bargaining 	table. 	This 	is 	a 	weak
argument 	for 	several 	reasons. 	There 	is 	ample 	evidence 	in 	the
record 	that 	other 	universities 	have 	been 	able 	to 	maintain 	their
interests 	while 	bargaining with 	student 	employees. 	There 	is 	also
ample 	evidence 	in 	the 	record 	that 	the 	University 	has 	adamantly
and 	successfully maintained 	its 	interests 	to 	date 	during
collective 	bargaining with 	student 	employees 	at 	UC 	Berkeley.
Finally, 	there 	is 	nothing 	in 	the 	record 	suggesting 	that 	a 	change
in 	the 	status 	quo 	will 	undermine 	excellence 	at 	the 	University.
Any 	status 	quo 	at 	the 	University 	is 	clearly 	a 	dynamic 	status 	quo
subject 	to 	change 	at 	any given 	time.
An 	examination 	of 	these 	second prong 	issues 	leads 	me 	to
conclude 	that 	extending 	coverage 	to 	the 	disputed positions 	will
not 	only 	help 	develop 	a 	more 	harmonious 	and 	cooperative 	labor
management 	relationship, 	but 	it 	will 	affirmatively 	encourage
excellence 	within 	the 	University. 	Mutual 	bargaining 	obligations
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will 	result 	in 	a 	greater 	flow 	rather 	than 	a 	lessening 	of
information 	and 	ideas. 	Clarity over 	employment 	issues 	provided
through 	a 	collective 	bargaining 	agreement 	will 	help 	avoid
disputes 	which may 	endanger 	student 	faculty 	relationships. 	If
disputes 	do 	arise, 	a 	mutually 	negotiated 	dispute 	resolution
process 	can 	assist 	the 	parties 	with 	their 	employment 	dispute 	by
ensuring 	some 	protections 	for 	the 	complainant 	and 	a 	sense 	of
fairness 	for 	both parties. 	Impasse 	procedures 	built 	into 	the 	act
will 	also 	minimize 	the 	possibility of 	one 	of 	the 	most 	disruptive
aspect 	of 	collective 	bargaining, 	the 	work 	stoppage. 	These
affirmative 	encouragements 	of 	excellence 	will 	be 	gained 	without
other 	significant 	negative 	impacts.
For 	these 	reasons, 	I 	find 	that 	the 	educational 	objectives 	of
readers, 	tutors 	and 	associates 	are 	subordinate 	to 	the 	services
they provide 	and 	that 	it 	would 	further 	the 	purposes 	of 	the 	Act 	to
extend 	coverage 	to 	the 	employees 	in 	question.
CONCLUSION-APPROPRIATENESS 	OF 	REQUESTED 	UNIT
Based upon 	the 	above 	findings 	of 	fact, 	discussion, 	and 	the
entire 	record 	in 	this 	case, 	I 	find 	that 	the 	individuals 	in
dispute 	in 	this 	hearing 	are 	employees 	under 	the 	Act, 	and 	that 	the
unit 	requested 	by 	the 	Petitioner 	is 	appropriate 	for 	negotiating
with 	the 	Regents 	of 	the 	University 	of 	California 	at 	the 	San 	Diego
Campus, 	provided 	an 	employee 	organization 	becomes 	the 	exclusive
representative 	of 	that 	unit. 	Pursuant 	to 	the 	following 	ORDER, 	an
election 	will 	be 	conducted by 	the 	PERB 	Regional 	Director 	unless
the 	University grants 	voluntary 	recognition 	to 	the 	Petitioner.
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PROPOSED ORDER
The 	following 	unit 	is 	found 	to 	be 	appropriate 	for 	meeting
and 	negotiating 	at 	the 	University of 	California 	San 	Diego 	campus.
Shall 	Include 	All:
Readers
Tutors27
Associates 	In 	(Teaching 	a 	Class)
Shall 	Exclude 	All:
Managerial, 	Supervisorial 	and 	Confidential 	employees,
and All 	Other 	Employees
APPEAL 	PROCESS
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 	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 	Regs.,
tit. 	8, 	sec. 	32300.) 	A document 	is 	considered 11 filed 11 	when
actually 	received 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on 	the
last 	day 	set 	for 	filing 	11 • 	. 	or when 	sent 	by 	telegraph 	or
certified 	or 	Express 	United 	States 	mail, 	postmarked 	not 	later
27At 	the 	hearing, 	the 	University 	indicated 	that 	it 	may 	be
revising 	the 	tutor 	title 	and 	title 	codes. 	In 	an 	attempt 	to 	avoid
the 	type 	of 	confusion 	that 	occurred with 	the 	acting 	instructor
title 	at 	UC 	Berkeley, 	my 	intention 	is 	to 	include 	all 	of 	the
tutors 	that 	were 	the 	subject 	of 	this 	hearing, 	performing 	both
tutoring 	duties 	and 	undergraduate 	TA duties 	by whatever 	title 	and
in whatever 	title 	code 	that 	may 	result 	from 	such 	revision.
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than 	the 	last 	day 	set 	for 	filing 	. 	II 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	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.)
129
James 	. 	Tamm
Administrative 	Law 	Judge
R