Regents of the University of California (University of California Association of Interns and Residents) (PERB 1359H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
UNIVERSITY 	OF 	CALIFORNIA
ASSOCIATION OF 	INTERNS AND
RESIDENTS 	(UCAIR),
Petitioner.
Case No. 	SF-PC-1052-H
PERB Decision No. 	1359-H
October 28, 	1999
Appearances: 	University of 	California Office 	of General 	Counsel
by James E. 	Hoist, 	James Nellis Odell 	and Leslie Van Houten,
Attorneys, 	and Cochran-Bond 	& Connon LLP by Walter Cochran-Bond,
Attorney, 	for the Regents of the University of California; 	Robert
J. 	Bezemek, 	Attorney, 	and Kenneth T. 	Phillippi 	for University of
California Association of 	Interns and Residents 	(UCAIR).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	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 	(attached) 	by a 	PERB administrative 	law judge
(ALJ). 	In the proposed decision the ALJ determined that medical
housestaff1 employed by 	the University at 	its medical 	centers 	at
the University of California at Los Angeles 	(UCLA), 	University of
California at 	San Francisco 	(UCSF) 	and University of 	California
at Davis 	(UCD), 	and on rotation within a 	facility owned and
1The term 	"housestaff" 	is used throughout 	this Decision 	to
describe medical 	residents 	and 	clinical 	fellows 	in 	residency
programs 	at University hospitals.
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operated by 	the University, 	are 	employees under 	the Higher
Education Employer-Employee Relations Act 	(HEERA or Act).2 Based
on 	the 	petition 	for 	certification 	filed by 	the 	University 	of
California Association of 	Interns 	and Residents 	(UCAIR) 	the ALJ
determined 	that 	campus-wide 	bargaining units 	consisting 	of
housestaff 	at 	UCLA, 	UCSF and UCD are 	appropriate bargaining units
under 	HEERA.3
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 UCAIR's
response 	thereto. 	Finding 	them to be 	free 	of prejudicial 	error,
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 	law, 	consistent with the 	following discussion, 	and
finds 	that housestaff, 	as described in the attached order, 	are
employees 	under 	the 	HEERA.
INTRODUCTION
The 	Statutory Test
Under HEERA, 	an 	employee 	organization may petition 	the 	Board
to 	certify it 	as 	the 	exclusive 	representative 	of 	the 	employees 	of
an appropriate bargaining unit 	for 	the purpose 	of meeting and
2HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code.
Petitions 	for housestaff 	bargaining units 	at 	the
University's 	Irvine 	and San Diego 	campuses 	were 	dismissed due 	to
lack of 	support.
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conferring with 	the University over 	terms 	and conditions 	of
employment. 	(HEERA sec. 	3575(c).) 	The Board will 	conduct 	the
necessary 	inquiries 	and 	investigations 	in order 	to decide
questions 	raised by the petition, 	including the 	employer's
assertion 	that 	it 	reasonably doubts 	the appropriateness 	of 	the
unit. 	(HEERA sec. 	3577(a).)
The 	University asserts 	that 	the 	units 	proposed by UCAIR 	and
determined 	to be 	appropriate 	by 	the ALJ are 	inappropriate 	because
they 	include 	student 	employees 	who are 	not 	covered by HEERA.
HEERA section 3562(f) 	(hereafter subsection 	(f)) 	defines an
employee 	under HEERA:
' 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 	Board must 	apply 	this 	definition 	to determine 	in 	this
case whether housestaff 	employed by 	the University at 	UCLA, 	UCSF
and UCD are employees under HEERA and, 	therefore, 	are entitled to
negotiate 	with 	the University over 	the 	terms 	and 	conditions 	of
their 	employment.
Subsection 	(f) 	sets 	out a three-part 	test 	to determine
whether 	collective bargaining 	rights 	should be 	extended 	to
student 	employees.
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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
their 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
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.
Prior Cases 	Involving 	the Application of 	the 	Statutory Test
The 	issue of 	the application of 	the 	subsection 	(f) 	test 	to
student 	employees at 	the University has 	come before 	PERB 	in 	four
prior cases. 	One of 	these cases, 	Regents 	of the University of
California v. 	Public Employment Relations Bd. 	(1986) 	41 Cal.3d-..
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601 	[224 Cal.Rptr. 	631] 	(Regents). 	also presented the issue of
the 	employee 	status 	of housestaff under HEERA.
In Regents, 	the Supreme Court upheld the Board's 	decision
that housestaff were employees under HEERA. 	In doing so, 	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 work
hour 	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 	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 NLRB 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 	student 	employees' 	motivations were
55

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, 	the 	court 	in
Regents 	found that 	subsection 	(f) 	represents a 	compromise by the
Legislature 	between 	the 	NLRB's 	majority and 	dissenting 	opinions,
requiring that both factors, 	a student's purpose 	for
participating 	in the position and the 	services provided, 	be
considered. 	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, 	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 	- - t o 	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, 	therefore, 	that even if all 	the student
employees 	agreed 	that 	their purpose 	in 	seeking 	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. 	The 	court 	noted that while housestaff
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sought 	to participate 	in residency programs 	in order to obtain
extensive medical 	training, 	these educational 	objectives were
subordinate 	to 	the valuable patient 	care 	services 	housestaff
provided. 	As 	stated by the 	court 	in referring to 	PERB's
decision:
. 	. 	. 	although housestaff did receive
educational 	benefits 	in the 	course 	of 	their
programs, 	this aspect was subordinate to the
services 	they performed. 	The Board made 	this
determination based on 	(1) 	the 	substantial
quantity 	of 	time 	housestaff 	spend on 	clinical
activities and direct patient care, 	(2) 	the
nature 	of 	the procedures 	housestaff perform
with little or no supervision, 	(3) 	the
professional 	guidance 	they provide 	for
interns, 	medical 	students and other hospital
employees such as nurses and technicians, 	(4)
the 	extensive 	indicia 	of 	employment 	that
characterize housestaff 	as 	employees 	rather
than students, 	and 	(5) 	the extent of the
educational 	benefit 	and 	training 	received by
housestaff. 	[Regents at p. 	618.]
The 	court 	also 	found 	support 	for 	the 	Board's 	determination
under prong 	two, 	that 	the purposes 	of 	HEERA would be 	furthered by
extending 	collective bargaining 	rights 	to housestaff. 	The Board
found 	that 	there were 	substantial 	employment 	concerns 	affecting
housestaff and that 	issues 	such as 	salaries, 	vacation time,
fringe benefits and hours, 	were 	"manifestly amenable 	to
collective negotiations." 	(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.
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PERB addressed 	the 	student 	employee 	issue 	a 	second 	time 	in
Regents 	of 	the University of 	California 	(1989) 	PERB Decision
No. 	730-H 	(Regents 	(AGSE)). 	In this case, 	the Board considered
whether graduate 	students 	appointed 	to 	graduate 	student
instructor 	(GSI) 	and graduate 	student 	researcher 	(GSR) 	positions
at 	the University's 	Berkeley 	campus 	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 on these considerations, 	the
Board in Regents 	(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
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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 	the 	Berkeley 	campus 	were
not 	employees 	for purposes 	of 	HEERA.
On appeal, 	the 	court 	in Association of Graduate Student
Employees v. 	Public Employment Relations Bd. 	(1992) 	6 Cal.App.4th
1133 	[8 Cal.Rptr.2d 275] 	rev. 	den. August 13, 	1992 	(AGSE) 	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 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, 	it
upheld the 	Board's 	conclusion 	that 	GSIs 	and GSRs 	were 	not
99

employees under HEERA, 	finding 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.
The 	Board applied 	the 	guidance 	contained 	in 	these 	prior
cases 	in 	determining whether HEERA coverage 	should be 	extended 	to
certain 	student 	academic 	employees 	at 	the University's 	San Diego
(UCSD) 	campus. 	In Regents of 	the University of California 	(1998)
PERB Decision No. 	1261-H 	(UC San Diego), 	the Board determined
that 	students 	employed as 	readers, 	tutors and associates at UCSD
are 	employees 	under HEERA. 	The 	Board rejected 	the University's
assertion under prong one 	of 	the 	third part 	of 	the 	subsection 	(f)
test 	that 	the 	educational 	objectives 	of 	the 	student 	academic
employees 	at 	issue were not 	subordinate 	to 	the 	services 	they
performed. 	Referring to the prior court decisions, 	the Board
stated:
The AGSE 	court 	instructs 	that 	'the 	statute
and Regents 	decision 	call 	for a value
judgment about which is 	subordinate, 	not a
scientific weighing process.' 	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
'services must 	be performed without 	regard 	to
whether 	they will 	provide 	any 	educational
benefit' 	to the students performing them.
(UC San Diego at p. 	20.)
10

The Board then concluded that, 	because 	the 	services provided by-
readers, 	tutors and associates were vital 	to the academic mission
of 	the University, 	and were not vital 	to the accomplishment 	of
educational 	objectives, 	the educational 	objectives 	of 	student
employees 	in those positions 	were 	subordinate 	to 	the 	services
they 	performed.
The 	Board 	in UC 	San Diego also 	determined 	that 	coverage
under HEERA of 	the 	student 	academic 	employees 	at 	issue would
further the purposes 	of 	the Act. 	In response 	to the University's
arguments 	to 	the 	contrary, 	the Board noted the 	expressed purpose
of HEERA, 	at section 3560 (e), 	to provide for relations between
the 	higher education 	employer and 	its 	employees 	which permit 	the
fullest 	participation of 	employees 	in determining 	the 	conditions
of 	their employment. 	The Board stated:
It is axiomatic, 	therefore, 	that the
extension of 	collective bargaining rights 	to
University employees 	is 	consistent with, 	and
in furtherance of, 	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. 	rue San Diego at p. 	28.]
The 	Board noted HEERA provisions 	which preserve 	and 	encourage
academic 	freedom, 	shared governance 	and 	joint 	decisionmaking
between 	the University and 	its 	faculty, 	and peer review and
tenure 	systems 	for academic 	employees. 	The Board also 	cited
HEERA provisions 	which exclude 	from the 	scope 	of 	representation
11

subjects 	which could 	intrude 	in these academic areas. 	The Board
stated:
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 another. 	They are not mutually
exclusive, 	as much of 	the University's
argument 	seems 	to suggest.
(UC San Diego at p. 	30.)
The 	Board 	reached the 	same 	conclusion 	in The 	Regents 	of 	the
University of 	California 	(1998) 	PERB Decision No. 	1301-H
(UC Los Angeles). 	determining that 	student academic employees 	in
various 	positions 	at 	the UCLA campus 	were 	employees 	under HEERA.
The Board again 	concluded 	that 	"employment 	in 	the 	disputed
positions 	is more valuable 	and effective 	in providing 	service 	to
the University 	than 	in meeting 	the 	educational 	objectives 	of
students." 	The 	Board stated:
[I]t 	is 	reasonable 	to 	conclude 	that 	affected
students 	would 	find 	other means 	to accomplish
those 	objectives, 	as 	do the many students who
currently do not 	serve 	in the positions 	in
dispute in this case. 	Conversely, 	the
services 	performed by 	the 	student 	academic
employees 	in dispute are vital 	to 	the
University 	and must 	be 	performed without
regard 	to whether 	they provide 	any
educational 	benefit 	to student 	employees.
(UC Los Angeles at p. 	26.)
Responding 	to 	the University's 	assertion 	that 	HEERA coverage
of 	student 	academic 	employees 	would 	interfere with 	the pursuit 	of
academic excellence, 	which is 	the purpose of 	the University, 	the
Board 	stated:
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The 	policy 	expressed within 	HEERA 	section
3561(c) 	'to encourage the pursuit of
excellence 	in teaching, 	research and
learning' 	is achieved 	'through the free
exchange 	of 	ideas among the 	faculty, 	students
and 	staff 	of 	the University of 	California'
and 	through a 	system which 	seeks 	'to preserve
academic 	freedom in 	the University of
California.' 	This 	is 	the very system
established by HEERA. 	Contrary to 	the
University's 	contention, 	HEERA presents a
framework under which 	the pursuit 	of 	academic
excellence, 	the free exchange of ideas, 	the
preservation of academic 	freedom, 	and
collective bargaining all 	co-exist 	and
complement 	one another. 	[UC 	Los Angeles 	at
p. 	31.]
For the 	first 	time 	in UC Los Angeles, 	the Board dealt with
the University's 	argument 	that 	the 	application of 	HEERA to
student 	academic 	employees 	would 	interfere 	with 	certain 	central
functions 	of 	the University and 	thereby violate 	the
constitutional 	restriction 	that 	the 	"full 	powers 	of 	organization
and government" 	vested in the Regents 	of 	the University of
California in Article 	IX, 	section 9 	of 	the California
Constitution, 	may be 	subject 	only to 	limited legislative
control.4 In 	rejecting 	the University's 	argument 	the 	Board noted
4The University raised this 	issue 	in 	its 	request 	that 	the
Board join 	in a 	request 	for judicial 	review of 	its 	decision 	in UC
San Diego. 	HEERA section 3564(a) 	provides 	that no employer shall
have 	the 	right 	to 	judicial 	review of 	a unit 	determination by 	the
Board, 	unless 	the Board agrees 	that 	the 	case is 	of 	special
importance and joins 	in 	the 	request 	for such review. 	In denying
the University's 	request, 	the Board noted that 	the 	constitutional
issue was 	not presented 	in UC San Diego prior to 	the 	request 	for
judicial 	review. 	The Board stated:
-
The 	Board declines 	to 	reach 	the determination
that 	a 	case 	is 	of 	special 	importance based on
consideration 	of 	an 	issue 	not 	addressed 	in
that 	case. 	[Regents 	of 	the University of
California 	(1998) 	PERB Order No. 	JR-18-H at
13

that 	PERB, 	as an administrative agency, 	is bound by Article 	III,
section 3.5 	of 	the California Constitution, 	which states:
p. 	8.]
An administrative agency, 	including an
administrative 	agency 	created by 	the
Constitution or an initiative 	statute, 	has no
power:
(a) 	To declare a statute unenforceable, 	or
refuse to enforce a statute, 	on the basis 	of
it 	being unconstitutional 	unless 	an appellate
court 	has made 	a determination 	that 	such
statute 	is unconstitutional;
(b) 	To declare a statute unconstitutional;
(c) 	To declare a statute unenforceable, 	or
to 	refuse 	to enforce a 	statue 	on the basis
that 	federal 	law or 	federal 	regulations
prohibit 	the 	enforcement 	of 	such a 	statue
unless 	an appellate 	court has made a
determination 	that 	the 	enforcement 	of 	such
statute 	is 	prohibited by 	federal 	law or
federal regulations. 	[New sec. 	adopted
June 6, 	1978.]
The 	Board noted 	that 	there 	had been no appellate 	court
determination 	on 	the 	constitutional 	issue 	raised by 	the
University, 	even though 	the 	court 	had 	considered 	two prior 	cases
involving the application of 	subsection 	(f) 	to student academic
employees. 	In Regents. 	the Board noted, 	the court looked to the
legislative 	history of 	HEERA to 	determine whether housestaff 	were
precluded 	from HEERA coverage as 	employees. 	The 	court 	stated:
Although the 	statute 	is 	silent 	on the 	subject
of housestaff, 	it 	clearly leaves 	open the
possibility 	that 	such persons 	may 	come 	within
it. 	As the words of 	the statute make 	clear,
the 	Legislature 	intended 	that 	PERB 	determine
whether a particular student 	qualifies 	as 	an
employee under the Act. 	[Regents at p. 	607.]
14
------

The 	Board 	is 	guided by 	these prior 	cases 	in 	the 	application
of the subsection 	(f) 	test here.
DISCUSSION
UCAIR 	offers 	no 	exceptions 	to 	the ALJ's 	finding 	that
housestaff 	on 	rotation at 	non-University 	owned 	and 	operated
facilities are not employees under subsection 	(f) 	and, 	therefore,
are 	excluded 	from HEERA coverage. 	The Board adopts 	this 	finding
as 	the 	finding of 	the Board itself.
The 	Constitutional 	Issue
In its exceptions to the ALJ's decision, 	the University, 	as
it 	did in UC Los Angeles, 	asserts 	that HEERA coverage of
housestaff 	would 	interfere with 	central 	functions 	of 	the
University in violation of Article 	IX, 	section 9 	of 	the
California Constitution, 	which states, 	in pertinent part:
The University 	of 	California 	shall 	constitute
a public 	trust, 	to be administered by the
existing 	corporation known as 	'The Regents 	of
the University of 	California,' 	with full
powers 	of 	organization and government,
subject 	only to 	such 	legislative 	control 	as
may be 	necessary 	to 	insure 	the 	security of
its 	funds 	and 	compliance with the 	terms 	of
the 	endowments 	of 	the university and 	such
competitive bidding procedures 	as may be made
applicable 	to 	the university by 	statute 	for
the letting of 	construction contracts, 	sales
of 	real property, 	and purchasing of
materials, 	goods, and services.
According 	to 	the University:
This 	constitutional 	provision establishes 	the
University as, 	in essence, 	a fourth branch of
state government 	with 	full 	powers 	of
organization and 	government 	over 	its 	central
and core 	functions, 	such as 	its 	relationships
with 	its 	students 	and the 	exercise of
discretion 	in 	setting 	academic 	policy and
15

making academic 	judgments. 	[University's
exceptions brief 	at p. 	6.]
In essence, 	the University seeks 	a 	ruling by PERB 	that 	the
subsection 	(f) 	test 	is 	constitutionally unenforceable with regard
to housestaff. 	As 	the Board explained in UC Los Angeles, 	prior
to an appellate 	court determination to that 	effect, 	PERB has no
power to make 	such a ruling pursuant 	to Article 	III, 	section 3.5.
The University's 	constitutional 	argument 	is 	rejected.5
5While 	the ALJ's 	decision 	contains 	an 	extensive 	discussion
which 	concludes 	that 	"nothing 	on 	the 	face 	of 	HEERA intrudes 	into
the 	constitutional 	authority 	of 	the University" 	(proposed
decision at p. 	56), 	Article III, 	section 3.5 makes it clear that
a 	question 	regarding 	the 	constitutionality 	of 	HEERA must 	be
pursued 	in the 	appellate 	courts 	rather than at 	PERB.
Nonetheless, 	as the Board noted in UC Los Angeles, 	HEERA
specifically 	references 	the University's 	constitutional 	status
and responsibilities. 	Section 3560(c) 	states, 	in pertinent part:
The people 	of 	the 	State 	of 	California have
established a 	system of 	higher 	education
under the 	Constitution of 	the 	State 	of
California with 	the 	intention 	of 	providing 	an
academic 	community with 	full 	freedom of
inquiry 	and 	insulation 	from political
influence 	in 	the administration 	thereof.
And Section 3560(e) 	states, 	in pertinent part:
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
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 appears 	that 	the Legislature was well aware of 	the
University's 	constitutional 	status, 	and 	intended that 	the 	system
of 	collective bargaining which 	it 	established 	in enacting 	the
HEERA would not 	interfere 	with 	the 	University's 	authority 	over
its 	central 	functions. 	Consequently, 	HEERA specifically excludes
16

from the 	scope 	of 	representation many of 	these 	central 	functions,
including 	"any 	service, 	activity or program established by 	law or
resolution of 	the 	regents 	or the directors," 	and 	"the 	content 	and
supervision of 	courses, 	curricula and research programs." 	(HEERA
sec. 	3562(q).) 	Further, 	HEERA seeks to preserve and encourage
the 	relationship between 	the 	University and 	its 	academic
employees 	which 	is 	"the 	long-accepted manner of 	governing
institutions 	of higher learning." 	(HEERA sec. 	3561(b).)
As 	noted above, 	the Regents 	court 	considered the 	legislative
history 	of 	the 	HEERA and 	concluded 	that 	housestaff 	clearly are
not 	eliminated 	from HEERA coverage 	by 	the 	language 	of 	subsection
(f). 	Instead, 	the court stated, 	"the Legislature intended that
PERB 	determine whether a particular 	student 	qualifies 	as 	an
employee under the Act." 	[Regents 	at p. 	607.]
Application 	of 	the 	Statutory Test
In 	order 	to determine whether 	the 	housestaff 	at 	issue 	in
this 	case are 	entitled to HEERA coverage, 	the Board must 	apply
the 	three-part 	subsection 	(f) 	test described above.
Part 	One: 	Is 	Employment 	Contingent 	on Student 	Status?
The parties 	offer no 	exceptions 	to 	the ALJ's 	finding 	that
employment as housestaff 	is 	contingent 	on student 	status, 	which
the Board adopts as 	its 	own conclusion.
Part 	Two: 	Are 	the 	Services 	Provided by Housestaff 	Related to
Their 	Educational 	Objectives?
The parties 	offer no 	exceptions 	to 	the ALJ's 	finding 	that
the 	services 	provided by housestaff 	are 	related 	to 	their
educational 	objectives, 	which the Board adopts as 	its 	own
conclusion.
Part Three 	- 	Prong One: 	Are 	the Educational Objectives 	of
Housestaff 	Subordinate 	to 	the 	Services 	They Perform?
Application of 	this part 	of 	the 	subsection 	(f) 	test 	requires
the Board to determine whether employment 	as housestaff 	is more
valuable 	and 	effective 	in meeting 	educational 	objectives 	or 	in
17

providing service to the University. 	(AGSE at p. 	1143.) 	In
finding 	that 	the 	educational 	objectives 	of 	housestaff 	are
subordinate 	to 	the 	services 	they perform, 	the ALJ relies 	on the
five 	factors 	cited 	in Regents 	to 	conclude 	that 	housestaff 	were
entitled 	to HEERA coverage. 	The University excepts 	to 	this
finding, 	arguing 	that 	the ALJ relied 	too heavily 	in his 	analysis
on 	the Regents 	decision. 	The University also asserts 	that by
limiting 	the analysis to those 	five, 	other important 	factors 	are
not 	considered.
While 	the application of 	this portion of 	the 	subsection 	(f)
test may 	involve numerous 	considerations, 	the Regents 	factors
utilized by the ALJ 	remain valid as 	a basis 	for analysis. 	Based
on 	its 	review of 	those 	factors, 	the University argues 	that 	their
application in this 	case does 	not 	support 	a 	finding that 	the
educational 	objectives 	of 	housestaff 	are 	subordinate 	to 	the
services 	they provide 	to 	the University.
The 	Board disagrees. 	Housestaff 	continue 	to 	spend long
hours, 	often extraordinarily long, 	providing clinical 	services
and direct 	patient 	care. 	They perform a wide variety 	of medical
and patient 	care 	functions 	and procedures, 	from routine patient
examinations 	and the development of patient 	treatment plans, 	to
providing medical 	treatment 	in 	life 	threatening situations. 	The
vast majority of 	these patient 	care 	services 	are performed
independently with 	little 	or no 	supervision 	from other medical
staff. 	As 	housestaff progress 	through 	their residency programs,
they 	are 	increasingly 	called upon 	to provide 	guidance 	and
-
18

- -
supervision to 	less 	senior housestaff, 	nurses and technical
staff.
While performing 	these 	services, 	housestaff 	exhibit 	indicia
of 	employment which are 	extensive and compelling. 	Their
compensation level 	is 	substantial, 	up to $45,000 per year; 	they
work 	on a 	12-month, 	non-academic 	schedule 	and receive 	a 	4-week
paid vacation per year; 	they 	receive 	an extensive benefit
package, 	including medical and dental 	coverage, 	disability and
life 	insurance and 	fully paid medical malpractice 	insurance; 	and
they 	receive 	performance 	appraisals 	on which promotions 	and
salary increases may be based. 	Conversely, 	housestaff 	do not
exhibit 	several 	fundamental 	indicia of 	student 	status. 	They pay
no University tuition; 	they take no University examinations; 	and
they receive no grades.
It 	is virtually undisputed 	that 	housestaff meet 	a variety of
educational 	objectives 	through 	their employment. 	Among 	them are
the 	development 	of 	competence 	in the provision of medical
services 	to patients, 	which prepares housestaff 	to practice
independently 	in a medical 	specialty; 	and the 	completion of 	an
accredited 	residency program, 	which provides 	housestaff 	with 	the
skills 	and experience 	necessary 	to 	qualify 	for professional
certification. 	But, 	as the Regents court stated:
The 	fact 	that 	housestaff 	obtain an
educational 	benefit 	from providing 	direct
patient-care 	services 	does 	not mean services
are 	subordinate 	to educational 	objectives.
Such 	services 	are undertaken 	for a patient's
welfare. 	Obviously, 	patient demands are such
that 	services 	must 	be performed without
19
-- ----

regard to whether 	they will 	provide 	any
educational benefit. 	[Regents at p. 	621.]
It 	remains 	clear 	in the 	instant 	case 	that 	the patient 	care
functions 	performed by housestaff 	must 	be 	provided 	regardless 	of
whether they further any educational 	objective. 	Therefore, 	the
value 	of 	the 	services 	being provided by housestaff 	is 	relatively
greater 	than 	the 	educational 	benefits 	which 	they may derive 	as 	a
result 	of 	their employment.
The 	Board 	concludes 	that 	employment 	in housestaff 	positions
is 	more valuable 	and effective 	in providing 	service 	to 	the
University than 	in meeting 	the 	educational 	objectives 	of
housestaff. 	Therefore, 	the Board adopts 	the ALJ's 	finding under
this prong of 	the 	subsection 	(f) 	test 	that 	the 	educational
objectives 	of 	housestaff 	are 	subordinate 	to 	the 	services 	they
perform.
Part Three 	- 	Prong Two; 	Would Coverage of Housestaff Under HEERA
Further the 	Purposes 	of 	the Act?
The 	University excepts 	to 	the ALJ's 	finding 	that 	extending
HEERA coverage 	to 	housestaff 	would 	further 	the purposes 	of 	the
Act. 	The University's argument 	is based largely on 	its 	assertion
that 	coverage would 	interfere with 	the University's 	central
functions 	in violation of Article 	IX, 	section 9 	of 	the 	California
Constitution. 	The Board's 	rejection of 	that argument 	is
discussed 	above.
In UC San Diego and UC Los Angeles, 	the Board explained 	its
application of 	this prong of 	the subsection 	(f) 	test. 	The
20

purposes 	of 	HEERA are 	stated 	in sections 	3560 	and 3561. 	HEERA
section 3560 	states, 	in pertinent part:
(a) 	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.
(d) 	The people and the aforementioned higher
education 	employers 	each have 	a 	fundamental
interest 	in the preservation and promotion of
the 	responsibilities 	granted by 	the people 	of
the State of 	California. 	Harmonious
relations 	between 	each higher 	education
employer and 	its 	employees 	are necessary 	to
that 	endeavor.
(e) 	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 	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, 	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.
HEERA section 3561 states, 	in pertinent part:
(a) 	It 	is the 	further purpose of this
chapter 	to provide 	orderly and 	clearly
defined procedures 	for meeting 	and 	conferring
and the 	resolution of 	impasses, 	and to define
and prohibit 	certain practices 	which are
inimical 	to 	the public 	interest.
21

Thus, 	HEERA's 	expressed purpose 	is 	to 	foster harmonious and
cooperative 	labor 	relations 	by providing 	for a 	system of
collective bargaining between 	the University and 	its 	employees.
As 	the Board held in both UC San Diego and UC Los Angeles. 	it 	is
axiomatic 	that 	this purpose 	is 	furthered by the 	extension of
collective bargaining 	rights 	to 	those 	employees 	determined by
PERB to meet 	the subsection 	(f) 	test.
The policy expressed within HEERA section 3561 (c) 	"to
encourage 	the pursuit 	of 	excellence 	in teaching, 	research and
learning" 	is 	achieved 	"through the 	free 	exchange 	of 	ideas 	among
the 	faculty, 	students, 	and staff of 	the University of California"
and 	through a 	system which 	seeks 	"to preserve 	academic 	freedom in
the University of 	California." 	This 	is 	the very system
established by HEERA. 	HEERA presents 	a 	framework under which the
pursuit of academic excellence, 	the free exchange of 	ideas, 	the
preservation 	of 	academic 	freedom, 	and 	collective bargaining all
co-exist 	and 	complement 	one another. 	These purposes 	and policies
do not 	conflict with one another, 	and are not mutually exclusive.
Furthermore, 	HEERA contains 	extensive guidance and specific
restrictions 	on the 	scope of 	representation to ensure 	that
providing 	collective 	bargaining 	coverage 	for employees 	will 	not
interfere with 	the pursuit 	of 	academic 	excellence 	and 	the
academic 	policies 	and procedures 	which both 	the 	University and
HEERA seek to preserve. 	For example, 	HEERA section 3562(q)(1)
states 	that 	the 	scope 	of 	representation at 	the University shall
not 	include:
22

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.
And HEERA section 3561(b) 	states, 	in pertinent part:
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.
To the extent, 	despite this guidance, 	that disputes arise
over whether a 	subject 	is within the 	scope 	of 	representation,
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 	representation.
These 	specific 	exclusions 	and 	safeguards 	ensure 	that 	HEERA
coverage 	of 	housestaff will 	not 	interfere with 	the University's
power of 	organization and governance 	over 	its 	central 	functions.
Based on this discussion, 	and the 	findings 	of the ALJ, 	the
Board 	concludes 	that 	HEERA 	coverage 	of 	housestaff 	would 	further
the purposes 	of 	the Act.
ORDER
The 	following unit 	is 	found 	to be 	appropriate 	for meeting
and negotiating at 	each of 	the 	following 	locations: 	University
23

of 	California at 	Los Angeles, 	University of California at 	San
Francisco and University of 	California at 	Davis.
The Unit 	Shall 	Include:
All 	medical 	housestaff 	who are 	employed by 	the
University of 	California and are 	on 	rotation within a
facility 	owned 	and 	operated by 	the 	University,
including 	Chief 	Residents 	who are 	in 	their 	final 	year
of 	a 	residency program.
The Unit 	Shall 	Exclude:
All managerial, 	supervisorial, 	and confidential
employees.
All medical 	housestaff 	on rotations 	at 	facilities 	not
owned and 	operated by 	the 	University 	of 	California.
All veterinary, 	pharmacy and dental 	residents.
All 	fellows 	(housestaff 	who have 	completed 	their 	first
board program).
Chief 	residents 	who have 	completed their 	first 	board
residency 	program.
All 	other employees.
An 	election will 	be 	conducted by 	the 	PERB 	San 	Francisco
Regional 	Director 	in accordance with 	PERB Regulation 	51300 	et
seq. 	unless 	the University grants 	a 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.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
24

PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
NOTICE 	OF DECISION AND
NOTICE OF 	INTENT TO 	CONDUCT ELECTION
CASE: 	PERB Decision No. 	1359-H
(Case No. 	SF-PC-1052-H)
Date Issued: 	October 28, 	1999
EMPLOYER: 	Regents 	of 	the University of 	California
DESCRIPTION OF UNIT:
The Unit 	Shall 	Include:
All 	medical 	housestaff 	who are 	employed by 	the
University of 	California and are 	on 	rotation within a
facility 	owned 	and 	operated by 	the 	University,
including 	Chief 	Residents 	who are 	in 	their 	final 	year
of 	a 	residency program.
The Unit 	Shall 	Exclude:
All managerial, 	supervisorial, 	and confidential
employees.
All 	medical 	housestaff 	on rotations 	at 	facilities 	not
owned and 	operated by 	the University 	of 	California.
All veterinary, 	pharmacy and dental 	residents.
All 	fellows 	(housestaff 	who have 	completed their 	first
board program).
Chief 	residents 	who have 	completed their 	first 	board
residency 	program.
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 5133 0, 	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 	Francisco
Regional 	Office within 15 	workdays 	from the date
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:
November 18, 	1999
This Notice 	of Decision and 	Intent 	to Conduct 	Election 	is
provided pursuant 	to 	PERB Regulations 	51235 	and 51300.
2
2

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
UNIVERSITY OF 	CALIFORNIA
ASSOCIATION OF 	INTERNS AND
RESIDENTS (UCAIR),
Petitioner.
Representation
Case No. 	SF-PC-1052-H
PROPOSED 	DECISION
(1/21/98)
Appearances: 	Cochran-Bond 	& Connon LLP by Walter 	Cochran-Bond
and Nicholas 	P. 	Connon, 	Proskauer Rose LLP by Jeffrey A. 	Berman,
Maria 	Grecky and Elizabeth Kruger, 	University of 	California
Office of the General 	Counsel by James E. 	Hoist, 	James Nellis
Odell 	and Leslie Van Houten, 	Attorneys, 	for Regents of the
University of California; 	Van Bourg, 	Weinberg, 	Roger and
Rosenfeld by William Sokol, 	California Association of 	Interns 	and
Residents, 	SEIU, 	Local 250 by Kenneth T. 	Phillippi, 	Law Offices
of Robert J. 	Bezemek by Robert J. 	Bezemek, 	Adam H. 	Birnhak and
Debra Dubroff, 	Attorneys, 	for University of California
Association of 	Interns and Residents 	(UCAIR).1
BEFORE: 	JAMES W. 	TAMM, 	Administrative Law Judge.
INTRODUCTION
This 	representation case presents 	three 	significant 	issues:
(1) 	whether housestaff are 	statutory employees 	that 	may comprise
an appropriate bargaining unit;2 (2) 	whether housestaff on
rotation 	in 	facilities 	not 	owned and operated by the 	Regents 	of
the University of 	California 	(University or UC) 	are 	statutory
1An internal 	union dispute 	exists 	regarding who 	represents
the petitioner. 	This 	decision does not 	attempt 	to resolve 	that
dispute. 	Any interested parties were 	allowed to 	file briefs.
All 	briefs 	were 	duly considered.
2Within this 	decision the 	term 	"housestaff" 	is 	used
synonymously with 	the 	term 	"resident".
)
)
)
)
)
)
)
)
)
)
)
)
______________ )

employees; 	and 	(3) 	whether establishment of a housestaff
bargaining unit 	would 	impermissibly 	intrude 	upon University
independence under Article 	IX, 	section 9, 	of the California
Constitution.
Resolution of 	the 	first 	issue 	is 	relatively 	straightforward.
The precise 	issue 	of 	housestaff 	employee 	status 	is 	one 	of 	a very
small 	number of 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
issues which have 	been addressed by the 	California 	Supreme 	Court,
resulting 	in a decision directly on point. 	Consistent 	with the
California Supreme 	Court's 	holding 	in Regents of 	the University
of 	California v. 	Public Employment 	Relations Board 	(1986) 	41
Cal.3d 601 	[224 Cal.Rptr. 	631] 	(Regents). 	this decision holds
that 	housestaff 	at 	University owned and 	operated 	facilities 	are
employees within section 3562 (f) 	of the Higher Education
Employer-Employee Relations Act 	(HEERA or Act),3 and therefore a
housestaff unit 	is 	appropriate.
The 	status 	of 	housestaff 	on rotation 	at 	non-University owned
and operated facilities 	is 	a matter of 	first 	impression.
Housestaff 	at 	those 	facilities 	are 	found to be 	excluded 	from
coverage because they provide little, 	if any, 	service to the
University during 	those 	rotations.
Regarding the third issue, 	this decision finds 	that 	employee
status 	for housestaff 	under HEERA can be 	harmonized with
limitations arguably imposed by Article 	IX, 	section 	9 	of 	the
California 	Constitution.
3HEERA is 	codified at 	Government 	Code 	section 	3560 	et 	seq.
2

PROCEDURAL 	HISTORY
The 	issue 	of 	housestaff 	employee 	status was 	first 	litigated
in 	1979 	when the 	Physicians National 	Housestaff Association
(PNHA) 	filed an unfair practice 	charge 	alleging that 	the
University unlawfully ceased making payroll 	dues 	deductions 	on
behalf 	of 	PNHA.4 The University's 	defense 	was 	that 	housestaff
were 	students 	excluded 	from 	coverage 	under HEERA.
The 	PERB 	determined 	that 	housestaff 	were 	statutory 	employees
entitled 	to 	coverage 	under HEERA and 	that 	the 	University had
violated the Act. 	Because 	the matter was 	litigated as 	an unfair
practice charge, 	rather than a representation case, 	the Board's
decision was 	appealed, 	culminating 	in the 	California 	Supreme
Court's 	ruling 	in Regents. 	During the 	lengthy appeal 	process
PNHA became 	defunct.
On February 13, 	1996, 	PNHA's successor in interest, 	the
University of 	California Association 	of 	Interns 	and Residents
(CAIR), 	filed this Petition for Certification seeking a
systemwide unit 	of 	all housestaff 	at 	the University's 	five
campuses having medical centers. 	On April 	3, 	1996, 	PERB
determined that 	the 	showing of 	support 	submitted with the
petition was 	sufficient 	to meet 	the 	requirements 	of 	PERB
Regulation 	51100(b).5 The University opposed the petition on
several grounds.
4The 	PNHA was 	an employee 	organization under HEERA
representing housestaff 	at 	the University of 	California.
5PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
W3

At 	pre-hearing conferences 	the parties 	selected
representative 	departments 	from each campus 	to provide 	testimony
at 	the hearing. 	After two weeks of hearing, 	the parties 	entered
into a 	stipulation agreeing that 	if 	housestaff 	are 	found to be
employees under section 3562(f) 	of HEERA, 	the appropriate units
for meeting 	and negotiating would be 	campuswide 	rather 	than 	a
single 	systemwide unit. 	The 	stipulation was based upon a 	series
of 	factual 	stipulations 	leading to a conclusion that 	local
autonomy has 	increased at 	University medical 	facilities 	since 	the
time of 	the Regents 	litigation.
At 	that 	time 	CAIR also modified the petition to 	delete
dental, 	pharmacy, 	and veterinary housestaff as well 	as all
"fellows" 	in second board subspeciality programs. 	The parties
also 	resolved all 	supervisory 	issues.
The 	stipulation of 	the parties was 	accepted and, 	based upon
an amended petition for campus units, 	the proof 	of 	support was
reevaluated. 	As a result, 	the petitions 	for units at 	the
University's 	Irvine 	and San Diego 	campuses 	were 	dismissed due 	to
lack of 	support.6
The 	hearing 	regarding 	the 	remaining 	campuses 	concluded on
July 21, 	1997, 	after 31 days of hearing. 	Transcripts were
prepared, 	briefs were 	filed and the 	case was 	submitted 	for
decision on November 18, 	1997.
6The parties 	also 	stipulated to be bound at 	any campus
dismissed 	from this 	hearing 	for 	lack of 	a 	showing of 	support 	by a
final 	court 	decision of 	the 	issues 	litigated in this 	hearing.
4

FINDINGS 	OF 	FACT
The University operates medical 	schools 	at 	five of 	its
campuses: 	San Francisco 	(UCSF), 	Los Angeles 	(UCLA), 	San Diego
(UCSD), 	Davis 	(UCD) 	and Irvine 	(UCI). 	As part of the graduate
medical 	education program 	the 	University offers 	residency
training 	in approximately 25 	specialty programs 	(e.g., 	internal
medicine, 	surgery, 	emergency medicine, 	pediatrics, 	psychiatry,
etc.)
Each 	specialty program has 	a 	sponsoring 	institution 	that
assumes 	final 	responsibility for the program. 	All 	of 	the
programs 	at 	issue 	in this 	case 	are 	sponsored by one 	of 	the
University medical 	centers.7
Students 	in medical 	school 	typically 	spend their 	last 	year
or two 	of 	medical 	school 	rotating 	through various 	assignments
within a hospital 	setting. 	Upon graduation from medical 	school,
students 	receive their M.D. 	degree, 	then begin a residency
program.
Residency programs 	typically 	last 	from two 	to 	six years
after graduation.8 After 	the 	first 	year of 	their 	residency
7Housestaff 	from programs 	sponsored by Kaiser 	Permanente 	or
Cedars-Sinai Medical 	Center, 	for example, 	may rotate through one
of 	the University owned and operated 	facilities, 	but 	are not
considered UC 	residents 	and would not 	typically be 	on 	the
University payroll. 	Residents 	in those programs 	are 	not 	included
within the petitioned units.
8Years 	ago 	the 	first year after medical 	school 	was 	commonly
referred to as 	an internship, 	however, 	the term intern is now
outdated 	and 	seldom used.
5

program, 	residents 	typically take 	licensing exams 	and become
fully 	licensed 	to practice 	medicine 	in 	California.
Although fully licensed to practice medicine, 	most 	residents
continue 	in a 	specialty program to become 	"board certified" 	by
one 	of 	the various 	medical 	specialty boards 	approved by a 	joint
committee 	of 	the American Medical 	Association and the American
Board of Medical 	Specialties. 	Board certifications 	are 	a basic
professional 	qualification 	for a doctor 	to be 	granted hospital
privileges 	and placed on 	approved provider panels 	of 	insurance
companies.
The 	specialty programs 	are 	accredited by the Accreditation
Council 	for Graduate Medical Education 	(ACGME). 	The ACGME sets
standards 	and conducts 	accreditation 	reviews 	for all 	specialty
programs. 	The 	standards 	are 	set 	forth in a book referred to as
the 	"essentials". 	If a program does not meet 	the minimum
standards 	set 	forth 	in the 	essentials 	the 	program may receive
accreditation reviews more 	frequently than normal, 	receive
warning notices, 	be placed on probation, 	or, 	in extremely
egregious 	situations, 	even lose 	its 	accreditation entirely.
The 	essentials 	are 	revised on a ongoing basis. 	The 	trend
has been 	for the 	essentials 	to become more 	specific with each
revision. 	Although programs vary greatly, 	the essentials 	often
spell 	out 	the 	length of 	the program, 	general 	curriculum
requirements, 	type of didactic training, 	types and sometimes
specific 	numbers 	of 	clinical procedures 	required, 	and resident
evaluation policies, 	among other requirements.
6
6

The essentials 	states:
The 	training of 	[housestaff] 	relies primarily
on 	learning acquired through the process 	of
their providing patient 	care 	under
supervision. 	The quality of 	the 	training
experience 	depends 	on 	the 	quality of 	patient
care. 	Educational 	quality and patient 	care
quality are 	interdependent 	and must 	be
pursued 	in 	such a way that 	they enhance
rather than 	interfere 	with each other. 	A
proper balance must 	be maintained so 	that 	a
program of 	graduate 	medical 	education 	does
not 	rely on 	[housestaff] 	to meet patient care
needs 	at 	the expense 	of 	educational
objectives.
The 	educational 	goals 	of 	the program and
learning objectives 	of 	residents must 	not 	be
compromised by 	excessive 	reliance 	on
residents 	to 	fulfill 	the 	institutional
service obligations.
Housestaff 	learn 	through both 	clinical 	and didactic
training. 	The vast majority of 	their time 	is 	typically spent 	in
a 	clinical 	setting working directly with patients. 	Residents
typically rotate 	through various 	departments 	or 	assignments 	in
two to 	four week blocks 	of 	time. 	Most 	rotations 	assign residents
to patient 	care 	teams which 	include 	an attending physician,
residents 	in varying years within their program, 	and medical
students.
The 	theory behind graduate 	medical 	education 	is 	one 	of
progressive 	responsibility. 	The 	amount 	of 	independence 	residents
receive 	depends upon their experience 	and confidence 	level. 	New
residents 	are 	given greater 	supervision by either 	an 	attending
physician or a more 	senior resident. 	Senior residents 	are
77

expected 	to work more 	independently and 	to 	assist 	and 	teach
junior residents. 	All 	residents 	are also expected to 	supervise
medical 	students 	on their team. 	As 	residents 	become more
experienced, 	they are 	also expected to put 	on conferences 	and
conduct 	pre-rounds 	with 	less 	senior 	residents 	and medical
students.
First year residents 	tend to do a great deal 	of 	"grunt" 	work
such as writing patient 	care orders 	and prescriptions. 	When they
have 	questions 	or concerns, 	they typically turn to more 	senior
residents 	for help. 	Although there are exceptions, 	the protocol
most 	followed 	is 	that 	residents work up 	the 	chain of 	command 	as
help 	is needed, 	especially when residents are working on call9
while most 	attending physicians 	are 	not 	actually in the 	hospital.
For example, 	a 	junior resident would typically first 	contact 	a
senior resident. 	If 	additional 	help 	is needed the 	senior
resident might 	then call 	a chief 	resident or fellow. 	If
additional 	help 	is 	needed the 	attending physician might 	be
contacted at home.10
Right 	from the 	start 	of 	their residency programs, 	residents
are 	assigned to 	the 	front 	lines of patient 	care 	efforts 	and are
immersed 	in all 	aspects 	of 	direct patient 	care. 	They regularly
'Although it varies by program and facility, 	"on call"
generally denotes 	a work 	shift 	which continues 	from one 	day
through 	the 	evening 	and 	into 	the 	next 	morning.
10Typical 	exceptions 	include 	departments 	such as 	emergency
medicine 	or 	intensive 	care nurseries where 	an attending physician
is present 	in the hospital 	24 	hours per day, 	or where 	there 	are
standing orders 	to 	contact 	the 	attending physician 	at 	home
whenever a hospital 	admission occurs.
8

perform physical examinations, 	obtain patients' 	medical
histories, 	develop and implement treatment plans, 	prescribe and
administer drugs, 	and perform a 	lengthy list 	of 	dangerous medical
procedures.
Most patients 	admitted to 	the 	hospital 	are 	first 	seen by a
resident 	and often 	are 	not 	seen by an 	attending physician until
the 	next 	day. 	A significant 	number of 	residents 	testified that
they continually make 	critical 	decisions 	in 	life 	or death
situations 	without 	the presence 	of 	an 	attending physician.
Recently some programs 	have 	taken steps 	to 	insure 	that 	all
patients 	are 	either personally seen by an attending physician, 	or
the 	case 	is personally reviewed after the 	fact 	by an 	attending
physician the next day. 	There 	is abundant evidence, 	however,
that 	this policy was 	not 	implemented as 	either a patient 	care
issue or 	for the 	educational benefit 	of housestaff. 	The
University, 	like many other teaching hospitals, 	is currently
under 	investigation 	for 	its 	billing practices under Medicare.
Under Medicare guidelines, 	the University is not 	allowed to bill
for services provided by residents. 	Therefore, 	the only way the
University can bill 	directly for physician services 	is 	if 	the
attending physician 	is 	actually present 	in the 	room with the
patient or, 	in certain fields 	such as radiology, 	personally
reviews the charts the next morning. 	In some departments, 	prior
to 	the Medicare 	regulations, 	senior housestaff were 	allowed to
sign off 	on patients upon their discharge. 	The 	attending
physician would then bill 	for 	the 	services 	as 	though 	the
99

attending physician 	had personally performed the 	service. 	That
practice 	has 	since been determined by Medicare 	to be 	improper.
According 	to 	testimony of 	both attending physicians 	and
housestaff, 	the 	requirement 	that 	attending physicians personally
see 	all 	patients 	has been to 	the detriment 	of 	the 	educational
process. 	For example, 	in the past attending physicians 	in the
UCLA emergency 	room 	selected 	cases 	for 	review based upon which
cases 	required 	their 	assistance 	or provided 	a 	learning
opportunity 	for housestaff. 	Now that 	each patient 	must 	be 	seen
by the 	attending physician, 	that physician's 	time 	can easily be
dominated by routine 	cases 	with little 	or no 	learning value 	to
housestaff.
Housestaff 	also 	learn through a 	number of 	other methods 	not
involving direct patient 	care. 	"Conferences" 	are didactic
programs 	offered on a weekly basis 	at 	regular times. 	At
conferences, 	faculty or other housestaff 	offer 	lectures 	or
interactive 	learning experiences 	on matters 	of 	interest 	to
housestaff. 	In most programs, 	housestaff 	are required to conduct
a 	certain number of 	conferences 	to 	remain 	in good 	standing within
the 	program.
Attendance 	at 	conferences 	seems 	to vary depending upon 	the
facility, 	the program, 	the year, 	and the University's interest 	in
taking attendance. 	Often housestaff 	are unable 	to attend or are
called out 	of 	conferences 	due to patient 	care needs, 	which take
precedence. 	Guidelines 	require 	that 	housestaff 	attend at 	least
70 percent 	of 	all 	conferences. 	In some programs when attendance
10

drops below 70 percent, 	the program sends housestaff a letter
reminding them that 	they are 	expected to 	attend the 	conferences.
In other programs 	there 	appeared to be no 	consequences 	for
dropping down to 	50 	percent 	attendance.
"Grand rounds" 	are occasional 	lecture programs 	for all 	the
housestaff 	in 	a 	specialty program. 	They are given by UC 	faculty,
outside visiting faculty, 	or on occasion, 	practitioners with
special 	expertise.
"Attending rounds" 	are sessions with all housestaff, 	medical
staff 	and medical 	students 	on 	a particular 	rotation who 	are 	on
duty. 	They typically occur daily. 	During attending rounds, 	the
attending physician 	and 	the 	housestaff 	team on 	duty often 	tour
the 	hospital 	to view and discuss patients 	with 	interesting
medical 	issues. 	These discussions 	are 	typically socratic 	in
method, 	with the 	attending physician asking questions 	of
housestaff 	in order 	to elicit 	any learning 	from the 	case.
"Journal 	clubs" 	are groups 	of 	residents 	and 	faculty who meet
to 	discuss 	recent 	or pertinent 	articles published 	in medical
journals. 	Typically each meeting, 	one or two individuals 	review
articles 	for the group as a whole. 	All 	the participants 	then
discuss 	the article. 	These meetings 	are usually held during off
duty hours 	at 	a club member's house.
Many of 	the 	didactic 	programs 	are 	also 	attended by other
physicians 	to 	satisfy continuing medical 	education 	requirements.
Every witness 	who was 	asked 	indicated 	that 	they believed 	their
education 	continued beyond 	their 	residency program. 	All
11

witnesses 	believed 	that 	medical 	education 	is 	a 	lifelong 	learning
effort.
There was 	conflicting 	testimony about 	the 	impact 	that
ancillary staffing has upon the 	educational 	efforts 	of
housestaff. 	It 	appears 	that 	there 	are variations between
departments, 	programs and facilities. 	In some departments
staffing has 	been 	reduced or remained the 	same 	for 	some 	time,
thus putting a greater 	load on housestaff 	to perform more 	mundane
procedures 	such as patient 	transports 	or hanging X-rays. 	One
radiology resident 	estimated that 	in 	some 	departments 	he 	spends
up 	to 	two 	hours 	a 	day going 	through patient 	records 	locating and
then hanging X-rays. 	In other departments 	ancillary staff
locates 	and hangs 	the 	radiographs 	for the 	housestaff.
Overall, 	it 	appears 	that 	ancillary staffing has 	increased
over the years 	in an effort 	to 	reduce 	some 	of 	the 	non-educational
mundane duties 	that 	residents 	have 	been assigned in the past.
Probably 	the best 	examples 	are phlebotomy teams 	assigned 	to draw
blood 	from patients, 	and special 	transport 	nurses who accompany
patients 	when 	they are 	transferred between departments.
The working hours 	of 	residents vary a great 	deal 	depending
upon their specialty, 	with extremes 	at both ends 	of 	the 	scale.
A very small number of rotations may be 	8 	a.m. 	to 5 p.m., 	six
days 	a week, 	while 	others 	consistently exceed 100 	hours per week
as 	a minimum. 	Most 	rotations 	average 	somewhere between 70 	and 80
hours per week. 	On many, 	if not most rotations, 	it 	is common for
12

housestaff 	to be 	required to work 	30- 	to 	36-hour shifts 	every
fourth day.
The ACGME essentials 	states:
Resident 	duty hours must 	not 	be 	excessive.
The 	structuring of 	duty hours 	and on-call
schedules must 	focus on the needs 	of 	the
patient, 	continuity of care, 	and the
educational 	needs of 	the resident.
While programs vary on 	the 	matter of 	hours 	within the
essentials, 	the most 	common requirements provide 	that 	the program
must, 	on average, 	permit 	residents to spend at 	least 	1 day out of
7 	duty free 	from the 	hospital, 	and be 	assigned on-call 	duty
(overnight) 	no more 	frequently than every third night. 	In a 	few
programs, 	the essentials 	sets 	limits on the number of duty hours.
For example, 	internal medicine 	requires 	that 	residents 	spend no
more 	than 80 	hours per week 	in patient 	care duties, 	when averaged
over a 	four week period.
Housestaff 	are 	paid with monthly University payroll 	checks,
from which state 	and 	federal 	taxes 	are withheld. 	Their pay
varies 	depending upon their year 	in the program, 	and to a 	slight
degree where 	they work. 	The University Office 	of 	the 	President
sets guidelines 	for residents' 	annual 	salaries 	ranging from
$30,900 	to 	$44,600. 	Individual 	campuses 	are able 	to 	increase
those amounts 	in order to stay competitive, 	however. 	For
example, 	at 	UCD 	the University has 	added a 	stipend to help offset
the 	cost 	of 	a disability 	insurance program.
In addition to a 	salary, 	housestaff 	receive a 	significant
benefits 	package. 	While 	the benefit packages vary somewhat 	among
13

University locations, 	most 	include 	four weeks of paid vacation, 	a
choice between two 	full 	coverage health insurance plans, 	dental,
vision 	and prescription 	coverage 	for 	residents 	and 	their
families, 	long term disability insurance 	(or an offsetting
stipend to purchase 	individual disability insurance), 	life
insurance, 	uniforms, 	meals while on duty, 	and long range pagers.
The 	University also provides 	housestaff 	with 	fully paid medical
malpractice 	insurance. 	Residents 	are 	also 	covered by social
security and workers 	compensation programs. 	Housestaff 	are 	not
allowed to 	join 	the University retirement 	plan.
Although 	the 	University carries 	housestaff 	on University
books 	as 	enrolled and registered students, 	residents 	do not
complete 	student 	registration 	forms. 	Nor do 	they pay any tuition
or other student 	fees. 	Residents are not 	referred to as 	students
but rather as residents, 	colleagues or doctors, 	unlike medical
students 	on hospital 	rotations who are 	referred to 	as 	students.
Residents 	do not 	take 	academic 	tests 	like 	those 	taken by
medical 	students, 	and they receive no grades. 	Instead, 	residents
receive 	evaluations 	at 	the 	conclusion of 	each rotation.
Residents 	occasionally take national 	examinations, 	for which no
grades 	are given, 	in preparation 	for their board certification.
These 	exams 	are 	typically not 	used 	for evaluation purposes 	and
are 	designed 	to provide 	feedback 	to 	residents 	about 	their
individual 	strengths 	and weaknesses, 	as well 	as 	feedback to the
University about 	program 	strengths 	and weaknesses.
14

Residents 	receive no degree 	from the 	University upon
completion of the residency program. 	They do, 	however, 	receive a
certificate 	indicating that 	they have 	completed 	the 	program 	and
are 	eligible 	to 	take 	specialty board exams.
The 	testimony 	from 	residents 	about 	their 	educational
objectives was 	fairly consistent. 	Residents 	choose 	a 	residency
program 	in order 	to 	develop 	competency 	in 	a 	specialized 	field of
medicine. 	Gaining mastery 	in their 	chosen 	field enables 	them to
become board certified. 	It 	also gives 	them experience practicing
medicine. 	Some 	residents 	also 	indicated a desire 	to 	continue 	in
an academic 	setting, 	and 	their residency program helps 	them
establish credentials 	for 	future 	employment. 	Many residents 	also
testified 	that 	they hoped 	to 	establish professional 	relationships
with 	faculty to 	assist 	them with 	future 	career opportunities.
It 	is 	a 	fair generalization to 	say that 	almost 	all 	residents
chose 	their University residency program because 	it 	offered 	them
extremely high quality training, 	leading 	to 	successful 	board
certification 	in 	their chosen 	specialty 	field. 	A significant
number of 	housestaff 	testified that 	they also made 	their 	initial
selection of programs based upon geographic 	location. 	When asked
whether the 	amount 	of 	the 	salary offered was 	a 	factor 	in their
decision, 	most 	indicated that 	it was not because there wasn't 	a
significant 	difference between the 	various programs.
A significant 	portion 	of 	housestaff 	seek outside 	employment
as physicians 	during their residency. 	Most programs 	do not
discourage 	this, 	although most 	require 	that 	the 	resident 	first
15

get permission from the program director. 	This 	insures 	that
residents 	do not 	jeopardize 	success 	in their own program due 	to
the demands 	of 	outside employment. 	Some programs 	also prohibit
housestaff 	from moonlighting 	at 	facilities 	where 	they would 	also
serve 	as 	residents. 	This policy seeks 	to avoid the 	situation
where 	two 	residents 	from the 	same program may be 	working 	side 	by
side, 	doing the 	same work, 	with one of the residents being paid
an additional 	$600 per shift. 	Residents 	in some programs 	can
supplement 	their 	salary by approximately 	30 	percent 	through
moonlighting.
One 	incident 	regarding moonlighting provides 	a 	dramatic
example 	of 	the 	service aspects 	of 	the 	residency program.
Residents 	in 	a UCLA program had a 	history of moonlighting at 	the
Veterans Hospital, 	providing necessary patient 	care 	coverage.
The 	VA then 	ran 	into budget 	difficulties 	and could no 	longer
afford to pay for the moonlighting residents. 	At 	the 	request 	of
the VA, 	the 	UCLA residency program 	simply assigned the 	residents
to 	the VA hospital 	for extra on call 	shifts without 	moonlighting
pay as part 	of 	their program responsibilities. 	When residents
objected 	to having to work the 	extra 	shifts 	as part 	of 	their
residency responsibilities 	rather 	than 	for the 	moonlighting pay
that 	they used to receive, 	they were 	told that 	if 	they failed to
cover 	the 	rotations 	they would be 	terminated 	from 	the program.
Other examples 	of 	service 	obligations 	occurred when 	the
number of 	residents 	in a program decreased, 	resulting in 	less
patient 	care 	coverage. 	The program added extra call 	schedules 	to
16

the 	resident 	assignments 	to 	insure 	that patient 	care 	coverage
continued.
There were, 	however, 	numerous examples where complaints 	from
housestaff 	resulted 	in changes 	to 	the program. 	Most programs
sponsor an annual 	three-day retreat 	for housestaff, 	in which they
discuss program structure 	and administration. 	Several 	times 	a
year housestaff 	have 	the 	opportunity to meet 	as 	a 	group with
program managers. 	Many programs 	also host 	regular 	luncheons 	with
residents 	to discuss 	housestaff needs 	or complaints. 	Residents
use 	all 	of 	these 	forums 	to voice 	complaints 	about 	their programs
to the administration. 	It 	also appears 	that housestaff 	are quite
willing 	to voice 	complaints 	and 	suggestions 	for 	improvement
directly to program 	faculty and administration. 	There 	are many
examples 	in 	the 	record where program administrators 	took 	action
to 	improve 	situations brought 	to 	them by housestaff.
CAIR 	has 	negotiated 	collective 	bargaining 	agreements 	with
numerous 	other hospitals 	outside 	the University of 	California
system. 	Those 	collective bargaining agreements may, 	however,
cover University residents 	during 	the 	time 	they may be 	rotating
through 	a non-University owned and operated 	facility. 	An example
of 	this 	is 	the 	collective bargaining agreement 	between CAIR and
San 	Francisco General 	Hospital, 	which was 	negotiated under the
Meyers-Milias-Brown Act 	(MMBA) 	(Gov. 	Code, 	sec. 	3500 et seq.).
Housestaff 	are 	also 	covered by the 	collective 	bargaining
agreement between the State of 	California 	(State) 	and the Union
17

of American 	Physicians 	and Dentists.11 In establishing 	State
Bargaining Unit 16 	(physician, 	dentist, 	and podiatrist), 	the PERB
included 	housestaff 	as professional 	employees 	within 	the
bargaining unit 	under the 	State 	Employer-Employee 	Relations Act
(SEERA) 	(Gov. 	Code, 	sec. 	3512 et seq.). 	(In the Matter of: Unit
Determination 	for the 	State 	of 	California 	(1979) 	PERB Decision
No. 	110-S.)
Both parties 	offered examples 	of 	contractual 	grievance
procedures 	used 	to 	resolve 	housestaff 	complaints 	within various
bargaining units under other statutes 	(e.g., 	MMBA) 	or other
states. 	The University offered several 	examples where 	academic
and employment 	issues were 	intermingled within a grievance, 	thus
risking that 	an 	arbitrator would be 	allowed 	to make 	rulings 	on
academic 	issues. 	University witnesses 	also testified that 	they
felt 	any grievance process 	involving a union advocate made 	the
problem 	solving process 	more 	adversarial.
The vast majority of grievances are, 	however, 	settled at
informal 	stages. 	Arbitrations are very rare. 	For example, 	in
its 	15-year history statewide, 	CAIR has not 	taken a 	single
grievance 	to 	arbitration.
Most 	programs 	benefit 	from a wider variety of patient 	mix
and 	learning 	experiences 	than 	a 	single 	University 	facility 	can
provide. 	The University therefore 	enters 	into arrangements with
uIt 	is 	appropriate 	for an administrative 	agency to 	take
official 	notice 	of 	its own records. 	(El Monte Union High School
District 	(1980) 	PERB Decision No. 	142.)
18

other 	facilities 	not 	owned and operated by the 	University.12 For
example, 	UCLA housestaff 	rotate 	through the Veterans Hospital 	to
gain more 	experience 	dealing with 	an 	elderly male 	patient
population with a 	high 	incidence 	of 	chronic 	lung disease.
Housestaff 	at 	UCSF 	rotate 	through San 	Francisco General 	Hospital
in order to work with a more 	indigent patient population, 	which
generally suffers more acute disease, 	or Childrens Hospital 	to
gain more 	exposure 	to 	sick 	children.
In most 	instances University housestaff 	rotating 	through
non-University 	owned 	and 	operated 	facilities 	remain 	on 	the
University payroll, 	receiving University paychecks 	at 	the 	same
pay level 	they receive within a University rotation. 	The
University typically, 	although not 	always, 	is reimbursed by the
non-owned and 	operated host 	facility 	for 	the 	salary 	the
University pays 	the 	housestaff 	while 	on rotation 	at 	that
facility. 	Examples where 	the University might 	not 	receive
reimbursement 	occur when 	residents 	rotate 	through rural 	clinics
or private 	physician 	offices 	to 	obtain 	specialized experience
regarding rural 	settings 	or small private practices. 	In those
cases, 	the University would continue paying the residents' 	salary
and not 	receive 	any reimbursement.
12Within 	the 	non-University owned 	and 	operated 	facilities
there 	are both 	"participating" 	and 	"UC-affiliated" 	programs 	and
institutions. 	Given the holding that 	all 	housestaff 	at 	non-
University owned 	and 	operated 	facilities 	are 	excluded 	from
coverage, 	it 	is unnecessary to discuss 	the complexities
distinguishing 	the 	two.
19

Even when the 	University does 	get 	reimbursed 	for 	resident
salaries, 	the 	reimbursement usually does not 	cover the 	full 	cost
of 	assigning 	housestaff 	to 	non-owned 	and operated 	facilities.
There 	are 	usually additional 	expenses 	associated with program
administration 	and 	didactic 	training 	that 	are 	not 	covered by 	the
reimbursement. 	Thus, 	in the best of arrangements the University
breaks even, 	and in most 	situations 	it 	loses money when rotating
residents 	to 	non-owned and operated 	facilities.
The 	parties 	offered 	conflicting 	studies 	regarding 	the
financial 	advantages 	to 	a medical 	center 	for sponsoring residency
programs. 	The 	studies offered by the University were more
credible 	than the 	study offered by CAIR. 	While 	the 	results were
not 	clear cut, 	the more 	credible 	studies 	concluded that 	residency
training programs were 	a 	financial 	disadvantage 	for 	the
sponsoring 	institution.13
The University has ultimate 	control 	over the 	curriculum, 	but
not 	the 	day to day activities 	or 	supervision 	at 	non-owned and
operated 	facilities. 	Attending physicians 	at 	these 	facilities
are 	given University 	faculty appointments 	so 	that 	they may
supervise University housestaff. 	These 	are 	often non-paying
appointments, 	however, 	sometimes the University pays a small
portion of 	the 	attending physician's 	salary. 	Attending
physicians 	at 	these 	facilities 	often 	take 	on 	teaching duties
13Although the 	data was 	not 	sufficient 	to draw clear
conclusions, 	one 	credible 	study suggested that 	a proper mix of
experienced 	and 	inexperienced 	residents 	might 	generate 	a 	slight
revenue 	in ambulatory settings while 	other 	settings 	would not 	be
cost effective at all.
20

because 	it 	is 	considered prestigious 	to be 	a member of 	the
University 	clinical 	faculty or 	simply because 	they 	enjoy
teaching, 	in spite of not 	receiving additional 	salary.
The 	amount 	of 	control 	the University exercises 	over work
issues 	at non-owned and operated facilities varies 	a great 	deal.
In a 	few cases 	the University's 	control 	is 	clear and direct, 	such
as 	at 	San Francisco General Hospital where 	the 	contract 	between
the 	University and San Francisco General 	specifically states:
"There 	shall 	be 	no 	disciplinary action against 	any 	individual
initiated by San 	Francisco General 	Hospital. 	Any concerns 	or
complaints 	by the 	Hospital 	will 	be 	registered with 	the University
of 	California who will 	then 	act 	in accordance with University
procedures."
University 	influence 	regarding work 	issues 	in most 	cases,
however, 	is 	limited to persuasion because the University does not
have 	discretion to unilaterally set 	working conditions. 	The
University does, 	however, 	exercise some authority when
negotiating with the non-owned 	facilities. 	If 	the University is
not 	satisfied with the 	conditions 	it 	can pull 	the program 	from
the 	non-owned and operated 	facility. 	Since 	this may work 	to 	the
detriment 	of both housestaff 	and the program itself, 	this
approach would not 	be 	exercised 	lightly.
The 	University receives 	no patient 	care 	services 	from
residents 	rotating 	through non-owned 	and operated 	facilities.
The purpose 	for such rotations 	is 	to benefit 	the educational
program of 	the 	residents. 	To 	some 	extent 	the University's
21

reputation does benefit 	from such affiliations. 	Several
residents 	testified that 	they were 	drawn 	to 	their program
initially because 	it 	had opportunities 	for a wide 	range of
experiences. 	That 	breadth of 	experiences would not 	be 	available
from only University owned and operated 	facilities. 	Thus,
University programs 	have 	a better 	reputation and can 	attract 	more
highly rated 	students 	because 	they are 	not 	limited 	to 	experiences
at University owned and operated facilities.14 .
DISCUSSION
Issue 	# 	1: 	The Employee 	Status of Residents
This 	unit 	dispute 	is 	governed primarily by HEERA section
3562 (f) 	(subsection f ) , which states:
(f) 	"Employee" 	or 	"higher education
employee" 	means 	any employee of 	the Regents
of the University of California, 	the
Directors of Hastings College of the Law, 	or
14In determining these 	findings of 	fact, 	two witnesses were
noteworthy for their lack of 	credibility. 	The 	first was
petitioner witness Dr. 	Theodore Grandin Rose, 	who testified about
the 	economic 	feasibility of 	residency programs. 	His 	testimony
offered a 	study which appeared to be more 	of 	an advocacy piece 	to
support 	the 	retention of 	a particular program, 	in which he 	had a
vested interest, 	rather than a true 	assessment 	of 	facts. 	The
second was University witness Dr. 	Ralph C. 	Jung, 	who described a
particular resident 	as 	"both a 	lazy resident 	and an 	inaccurate
resident 	[who] 	would falsify information". 	Dr. 	Jung was using
this 	as 	an example 	of where his mentoring a 	resident 	had suffered
as 	a result of 	the existence of 	a 	formal 	grievance procedure. 	It
was pointed out 	to Dr. 	Jung that 	no grievance was 	ever 	filed
regarding this 	individual, 	and that 	their dispute 	never 	involved
the grievance process. 	Dr. 	Jung's response was 	"But 	if 	it would
have 	I'd have been madder 	than hell 	at 	this 	guy 	for putting me
through the hassle 	of 	[having] 	to testify on a 	formal Residency
Review Committee 	that 	this 	guy was 	a 	jerk." 	(Reporter's
Transcript, 	Vol. 	18, 	pp. 	143-144.) 	Dr. 	Jung's use of this
example 	to buttress 	his personal views 	that 	grievance processes
harm the 	mentoring process 	reduces 	the 	credibility of 	his 	entire
testimony.
22

the Board of 	Trustees 	of 	the 	California 	State
University, 	whose employment 	is principally
within the State 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.
This 	section calls 	for the 	application of 	three 	tests 	to
determine 	coverage of 	student 	employees. 	The 	first 	test 	is
whether employment 	is 	contingent upon the 	candidate's 	status 	as 	a
student. 	If 	employment 	in a disputed position is not 	contingent
on student 	status, 	then the 	additional 	requirements of 	subsection
(f) 	do not 	apply and student 	employees 	are guaranteed rights
under the Act.
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 	their
educational 	objectives.
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).
23

First 	Test: 	Is 	Employment 	Contingent Upon Student 	Status?
A strong 	argument 	can be 	made 	that 	housestaff 	are
professional 	employees rather than students, 	and therefore, 	their
employment 	is not 	contingent 	on student 	status. 	This 	issue 	is
addressed later in this decision. 	However, 	in spite of 	that
strong argument, 	the 	facts 	as 	they exist 	now are almost 	identical
to 	those 	in the 	Regents 	case. 	Because both the Board and the
court 	previously analyzed housestaff 	as 	students 	on 	similar
facts, 	I 	feel bound by that holding. 	Therefore, 	because
housestaff 	are 	admitted 	into 	an 	educational 	program 	rather 	than
hired 	into a 	job, 	and because 	no 	individuals outside 	the
educational program are hired to perform as 	residents, 	I 	conclude
that 	employment 	as 	a resident 	is 	contingent 	upon student 	status.
Second Test: 	Are 	Services 	Related to Educational 	Objectives?
The 	services provided by residents 	are 	related 	to 	their
educational 	objectives. 	The 	overriding educational 	objective 	of
all 	residents who testified was 	to become 	competent, 	board
certified physicians. 	The 	only effective way to 	accomplish 	that
objective 	is 	to gain experience 	as 	a practicing physician 	in an
approved residency program. 	Thus, 	when residents 	are working
with patients 	under 	the 	supervision of more 	senior 	residents
and/or attending physicians, 	that work 	is 	directly related to
their educational 	objectives.
24

Third Test: 	Are 	Educational 	Objectives 	Subordinate 	to 	Services
(Prong One) 	and Would Coverage Under the Act 	Further the 	Purposes
of 	the Act 	(Prong Two)?
In Regents, 	the 	Supreme 	Court 	reviewed HEERA legislative
history, 	noting that 	the 	Legislature 	had created a new standard
for determining the 	status of 	residents, 	rather than 	following
National 	Labor Relations 	Board 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 	of 	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
are 	related to the 	services performed, 	PERB must 	balance 	those
educational 	objectives 	against 	the value 	of 	the 	services
performed.
In determining the 	educational 	objectives 	of 	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
25

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 	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
residents 	chose 	their positions 	in order to best 	fulfill 	their
personal 	educational 	objectives.15 Yet 	the Board still 	found
that 	the 	educational 	objectives were 	subordinate 	to 	the valuable
patient 	care 	services provided.
Prong 	One
While the record in this hearing is 	longer, 	it 	is
fundamentally similar 	to 	the 	facts 	outlined 	in 	the 	earlier
Regents 	case. 	Although there may be minor changes of 	emphasis,
all 	of 	the 	following 	factors which the 	court 	relied upon 	in
Regents 	to uphold the 	Board's 	housestaff 	decision are 	still
applicable: 
1 1
15The 	administrative 	law judge 	in that 	case noted:
[A]11 	housestaff 	witnesses 	testified 	[that]
their educational 	objectives 	in choosing and
participating 	in 	a 	residency program 	are
to 	receive 	the best medical 	training and
qualify 	for 	specialty or 	subspecialty
certification. 	. 	. 	. 	[Regents at p. 	640,
fn. 14.]
26

1. 	The 	substantial 	quantity of 	time 	residents 	spend on
clinical 	activities 	and direct patient 	care;
2. 	The 	nature 	of 	the procedures 	residents perform with
little 	or no 	supervision;
3. 	The professional 	guidance 	residents provide 	for newer
residents, 	medical 	students and other hospital employees;
4. 	The 	extensive 	indicia of 	employment 	status 	of
residents; and
5. 	The 	extent 	of 	educational 	benefit 	and training received
by the 	residents.
The vast majority of 	a resident's 	time 	is 	spent 	in direct
patient 	care. 	They perform physical 	examinations, 	take patient
histories, 	develop treatment plans, 	prescribe and administer
dangerous drugs, 	and perform all 	sorts of 	extensive medical
procedures 	in 	life 	threatening 	situations 	from 	intubations 	to
delivering babies. 	Almost 	all 	hospital 	admissions 	are 	first 	seen
by 	residents 	and are 	often 	not 	seen by an 	attending physician
until 	the next 	day.
Housestaff 	continue 	to work extremely long hours 	in 	spite 	of
efforts 	to reduce 	their workload. 	An 	80-hour work week 	is very
common, 	with some programs or rotations exceeding 100 	hours per
week. 	Even 	following the 	guidelines 	on hours 	suggested by the
essentials, 	a resident can be assigned shifts of 	24 	to 36 hours
every third or 	fourth day, 	and regularly work 	80-hour weeks,
receiving only one 	day off 	out 	of 	every seven 	"when 	averaged over
four weeks".
27

Senior housestaff 	also 	have 	substantial 	teaching 	and
supervisory duties. 	First year residents 	on call 	or working on
weekends 	almost 	always 	take 	questions 	to 	their 	senior 	residents
before 	they contact 	an attending physician. 	Senior 	residents
also put 	on conferences 	and give 	regular 	instruction to 	less
senior residents 	and medical 	students 	assigned to 	their 	team.
Residents 	also 	regularly 	issue medical 	orders 	which must 	be
carried out 	by nurses 	and other technicians.
The 	indicia of 	employment 	are also extensive. 	Residents are
paid approximately 	from 	$31,000 	to 	$45,000 	annually. 	Housestaff
do not work according to typical 	academic 	schedules 	(i.e., 	on a
semester or quarter 	system with a 	set 	period when everyone 	is
off) 	but 	rather they work year round and receive 	four weeks 	of
paid vacation 	scheduled 	to 	ensure 	adequate 	staffing 	of 	residents
exists at all times.
Housestaff 	also 	receive 	a better benefit package 	than most
other University employees. 	They typically receive 	a 	choice
between two full 	coverage health insurance plans, 	dental, 	vision
and prescription 	coverage 	for 	the 	resident 	and their entire
family, 	long 	term disability 	insurance 	(or an offsetting 	stipend
for the resident 	to purchase their own disability insurance),
life insurance, 	uniforms, 	meals when on duty, 	and long range
pagers. 	The University also provides 	housestaff with a major
benefit 	for 	any doctor: 	fully paid medical 	malpractice
insurance.
28

Housestaff 	are 	paid 	through 	regular payroll 	checks 	issued by
the University, 	from which state 	and 	federal 	taxes 	are 	deducted.
They are 	covered by 	social 	security and workers 	compensation
programs. 	They receive performance evaluations, 	not grades. 	If
they are 	promoted 	to 	their next 	level 	based upon those
evaluations, 	they receive annual 	salary increases.
Residents pay no University tuition or 	student 	fees. 	They
take no University examinations, 	but 	rather a very limited number
of 	national 	medical 	examinations 	for which no grades 	are 	given.
They receive 	no degree 	from the University at 	the 	completion of
the program. 	They are not 	identified as 	or called 	"students,"
but rather referred to as housestaff, 	residents, 	doctors, 	or
colleagues. 	This 	distinguishes 	housestaff 	from medical 	students
also doing 	rotations 	within 	the 	hospital 	who are 	referred to 	as
students.
Finally, 	although there 	has been an 	increasing emphasis 	upon
the 	importance of 	the didactic 	training over the past years, 	both
the 	nature 	and amount 	of 	didactic 	training 	received 	is
substantially 	similar to 	that 	outlined by the 	Supreme 	Court 	in
Regents. 	Also, 	since patient 	care 	is the primary responsibility
for residents, 	conflicts between patient 	care and didactics 	tend
to be 	resolved 	in 	favor of patient 	care.
One 	significant 	change 	has 	been 	implemented 	since 	the 	time
of 	the Regents decision. 	In the past, 	a patient 	could have been
admitted, 	treated, 	and discharged without 	ever seeing an
attending physician. 	Now, 	almost 	all patients are either
29

personally 	seen or their 	cases 	are 	reviewed by an attending
physician. 	This 	change was 	not 	instituted to benefit 	the
educational program, 	but 	rather to avoid Medicare 	fraud. 	It 	is
not 	a persuasive 	factor 	in determining the 	employee 	status 	of
housestaff.
Evidence 	that 	educational 	aspects 	play a more 	significant
role 	now than 	in 	the past 	are 	offset 	by new examples 	that 	service
still 	plays 	a predominant 	role. 	When UCLA required 	its 	residents
to 	cover 	call 	schedules 	at 	the VA hospital 	because 	the VA ran out
of money to pay for moonlighting doctors, 	that 	decision was
implemented for service 	reasons, 	not 	for the education of 	the
residents. 	The 	same holds 	true when the number of 	residents 	in a
program 	is 	reduced 	and 	increased 	call 	schedules 	are 	assigned 	to
residents to maintain patient 	coverage. 	Thus, 	the 	findings of
fact 	and 	conclusions 	of 	both 	the 	Board and the 	Supreme 	Court
regarding 	the predominance 	of 	service 	over educational 	objectives
are 	still 	supported by this 	record.
This 	is 	not meant 	to 	imply that 	educational 	objectives 	are
not 	being met 	or that 	they are not 	important. 	Virtually all
residents 	who 	testified believed 	that 	their 	educational
objectives were being met. 	That, 	however, 	was also the case in
Regents, 	and yet 	the Board and the 	Supreme 	Court 	still 	concluded
that 	service to the University, 	through the residents' 	clinical
duties, 	predominated over their educational 	objectives.
That 	conclusion 	is 	strongly corroborated by the 	fact 	that
housestaff 	fit 	so precisely within 	the 	definition of 	professional
30

employees. 	Section 3562(o)(2) 	states:
(o) 	"Professional employee" means:
(2) 	Any employee who: 	(i) 	has completed the
courses 	of 	specialized 	intellectual
instruction and study described 	. 	. 	. 	and
(ii) 	is performing related work under the
supervision of 	a professional person to
qualify himself 	to become 	a professional
employee as defined in paragraph 	(1).
This 	statutory language 	contemplates 	situations where
individuals 	have 	received their degrees, 	but must perform related
work under 	the 	supervision 	of 	those 	already qualified as
professional 	employees 	before 	they are 	considered qualified
professional 	employees. 	By obtaining their medical 	degree,
residents 	have 	"completed 	the 	courses 	of 	specialized 	intellectual
instruction and 	study". 	Residents 	also perform related work
under the 	supervision of 	a professional 	person 	in order to
qualify themselves to become a professional employee, 	i.e., 	a
board 	certified 	physician.
In Regents, 	the court 	found that 	section 3562(0)
corroborated 	their 	conclusion 	that 	housestaff were 	not 	excluded
per 	se 	from the benefits 	of 	collective bargaining, 	stating:
. 	. 	. 	Housestaff fit precisely within
this 	definition. 	The 	fact 	that 	housestaff
so 	clearly 	fall 	within the 	definition of
professional 	employee 	reinforces 	the
view that 	the 	Legislature 	did not
intend housestaff 	to 	be 	excluded under
the Act. 	[Fn. 	omitted.]
This 	finding 	is 	also consistent with the Board's 	holding 	in
In the Matter of: 	Unit Determination 	for the 	State of 	California.
supra, 	PERB Decision No. 	110-S, 	where it placed medical residents
31

into 	the 	same professional 	employee 	bargaining unit 	with
physicians, 	dentists, 	and podiatrists.
Prong 	two
Having 	concluded 	that 	service 	to 	the 	University and 	its
patients predominates over educational objectives, 	it 	is
necessary to determine 	if 	it would further the purposes 	of 	the
Act 	to extend coverage to housestaff. 	In Regents 	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 would,
therefore, 	foster harmonious 	and cooperative 	labor relations
between 	the 	University and housestaff.
In upholding the Board decision, 	the 	court 	specifically
rejected 	the 	University's 	claim 	that 	its 	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 	"[t]o 	determine 	in 	disputed
cases whether 	a particular 	item 	is within or
without 	the 	scope 	of 	representation."
32

(Section 3563, 	subd. 	(b).) 	[Regents at
p. 	623; 	emphasis in original; 	fn. 	omitted.]
The 	court 	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 summary, 	with the exception of a 	few new arguments
regarding the University's 	constitutional 	issue, 	which will 	be
discussed later, 	the University's arguments 	in this 	case 	are
little more 	than a 	rehash of 	old arguments 	rejected previously by
both the Board and the court. 	If 	the outcome of 	this 	issue 	is 	to
be changed, 	it will need to be done 	so as 	a change 	in policy at
the 	Board level, 	because 	the 	factual 	findings are not
substantially different 	from the Regents 	case. 	To come 	to 	any
other 	conclusion would also 	result 	in 	the 	absurd 	inconsistency of
granting 	residents 	collective 	bargaining 	rights 	under 	the 	two
other California bargaining 	statutes 	applicable 	to 	residents, 	the
33

MMBA 	(while 	on rotation at 	San Francisco General, 	for example)
and SEERA 	(while on rotation at a State hospital, 	for example),
but 	yet 	be 	excluded 	from coverage 	within 	their own program at 	the
University under 	HEERA.
I 	therefore 	find, 	consistent with the Regents decision, 	that
housestaff are employees under section 3562 (f) 	of HEERA, 	and that
campuswide units 	are 	appropriate 	for meeting and negotiating.
Issue 	# 	2: 	Housestaff 	at Non-University Owned or Operated
Facilities
The 	second 	issue 	to be 	resolved 	is 	whether housestaff
working 	at 	facilities 	that 	are 	not 	owned and operated by the
University are 	employees under HEERA. 	The 	reason residents 	are
rotated through 	such 	facilities 	is 	for their educational 	benefit.
Residents 	gain 	experience 	dealing with a different 	patient
population and different 	disease progressions 	than 	those 	at
University facilities. 	The 	service benefit 	accrues 	to the non-
University 	facility and 	its 	patients. 	Neither 	the University nor
any of 	its patients 	receive 	any service 	from residents 	at 	other
facilities. 	Even in the best 	of 	circumstances 	it 	is 	only a
monetary break-even proposition 	for the University. 	In most
situations 	the University does 	not 	fully recover 	its 	costs 	in
sending 	residents 	to 	another 	facility.
One benefit 	the University does 	reap 	is 	that 	the 	reputation
of 	its program is 	typically enhanced. 	Because 	residents 	have
greater exposure 	to differing patient populations, 	the program is
considered more 	attractive. 	While 	it 	is 	to the benefit 	of 	the
34

University to have 	its 	residency programs 	respected, 	that 	benefit
cannot be considered a service under subsection 	(f).
The petitioner's 	claim that 	the University and 	its 	non-owned
and operated 	facilities 	are 	joint 	employers 	is 	rejected. 	Four
factors 	have 	traditionally been relevant 	in determining 	if 	two
employers 	should be 	considered 	a 	single 	employer 	for 	collective
bargaining purposes; 	(1) 	the interrelationship of operations;
(2) 	common management; 	(3) 	centralized control of labor
relations; 	and 	(4) 	common ownership or financial 	control. 	(Radio
& Television Broadcast Technicians 	Local 	1264 	v. 	Broadcast 	Serv.,
Mobil. 	Inc. 	(1965) 	380 U.S. 	255, 	256 	[58 LRRM 2545]; South
Prairie Const. 	Co. 	v. 	Operating Enqr's Local 627 	(1976) 	425 U.S.
800, 	802 	(fn. 	3) 	[92 LRRM 2507].) 	The record does not support a
finding that 	the University is 	a 	joint 	employer with any of 	the
non-owned 	and 	operated 	facilities.
The 	closest 	example 	is 	probably San Francisco General
Hospital, 	where 	the 	contract between it 	and the University
specifically prohibits 	San 	Francisco 	General 	from 	taking 	any
disciplinary action against 	residents. 	That 	clearly gives 	the
University control 	over 	some 	labor 	relations 	issues 	at 	San
Francisco General. 	However, 	San Francisco General 	retains
sufficient 	autonomy 	to negotiate 	a 	collective 	bargaining
agreement with the petitioner under the MMBA, 	separate 	and apart
from the 	University. 	That 	collective 	bargaining agreement
contains clauses 	such as Recognition, 	No Work Stoppages, 	Use of
Facilities 	(by the union), 	Bulletin Boards, 	Job Stewards, 	Access,
35

Dues Check Off, 	Agency Shop, 	Health and Safety, 	Maintenance of
Employment Status, 	Job Descriptions, 	Housestaff Lounge, 	Security,
Phlebotomy Services, 	Housestaff Responsibilities, 	Telephone
Calls, 	Meals, 	and over twenty other clauses reflecting that 	the
University does 	not 	exercise 	labor 	relations 	control 	over 	San
Francisco General.
Any commonality of management 	stops, 	for the most part, 	at
the 	supervisory level, 	where attending physicians 	are given non-
paying University faculty appointments. 	Nor 	is 	there 	evidence 	of
common ownership, 	University financial 	control 	over San Francisco
General 	or 	significant 	interrelationship 	of 	operations.
I 	therefore 	conclude 	that, 	as 	to non-University owned or
operated facilities, 	the educational 	objectives of housestaff
predominate 	over 	the 	service 	received by the University. 	Because
educational 	objectives 	of 	housestaff 	predominate 	over 	services
received by the University, 	all 	housestaff working 	in 	rotations
at 	non-University owned or 	operated 	facilities 	are 	excluded 	from
coverage 	under HEERA.16
Issue # 3: 	The Constitutional 	Issue
The 	third and 	final 	issue 	is 	whether granting 	residents
employee 	status 	undermines 	the University's 	constitutional
status. 	Granting employee 	status 	can be 	harmonized with the
University's 	constitutional 	status 	because 	HEERA deals 	with
16Because 	housestaff 	at 	non-owned 	and operated 	facilities 	are
excluded based upon 	a 	lack 	of 	services 	received by the
University, 	it 	is unnecessary to deal with the University's
federal 	preemption 	and community of 	interest 	arguments.
36

matters 	of 	statewide 	concern 	that 	foster 	stable 	employer-employee
relationships, 	and does 	not 	improperly intrude 	into 	internal
University affairs.
Article 	IX, 	section 9 	of 	the 	California Constitution states
in relevant part:
The University of 	California 	shall 	constitute
a public 	trust, 	to be 	administered by the
existing corporation known as 	"The Regents 	of
the University of 	California," 	with 	full
powers 	of 	organization and government,
subject 	only to 	such 	legislative 	control 	as
may be 	necessary to 	insure 	the 	security of
its 	funds 	and compliance with the 	terms 	of
the 	endowments 	of 	the 	university and 	such
competitive 	bidding procedures 	as 	may be 	made
applicable 	to 	the 	university by statute 	for
the 	letting of 	construction contracts, 	sales
of 	real property, 	and purchasing of
materials, goods, 	and services.
The University argues 	that Article 	IX, 	section 	9 prohibits
the 	Legislature 	from enacting 	legislation 	that 	would 	interfere
with 	the 	University's 	power of 	organization 	and governance 	over
central 	or 	core 	functions 	such as 	its 	relationship with 	students
engaged in academic activities, 	or its discretion in making
academic 	judgments 	and academic 	policies.17 According to 	the
University, 	by excluding housestaff 	from coverage 	under
subsection 	(f) 	of HEERA, 	the Board can 	"save the Act 	from such a
constitutional 	confrontation."
17The 	University 	is 	not 	precluded 	from 	raising 	constitutional
issues now for the 	first time. 	It 	is noteworthy, 	however, 	that
from 	1979 	to 	1986 	the University spent 	seven years 	litigating
this 	exact 	same 	case 	all 	the way to 	the 	California 	Supreme 	Court
and never once 	raised this 	issue which 	it 	now raises 	as 	such a
fundamental 	intrusion 	into 	the University's 	constitutional
authority.
37

Administrative 	agencies 	are 	not 	typically 	involved 	in
constitutional 	issues. 	The 	California 	Constitution, 	Article 	III,
section 	3.5, 	specifically provides 	in 	relevant 	part:
An 	administrative 	agency, 	including 	an
administrative 	agency 	created 	by 	the
Constitution 	or 	an 	initiative 	or 	statute 	has
no 	power 	to:
(a) 	declare 	a 	statute unenforceable, 	or 	refuse 	to
enforce 	a 	statute, 	on 	the basis 	of 	it 	being
unconstitutional 	unless 	an 	appellate 	court
has 	made 	a 	determination 	that 	such 	statute 	is
unconstitutional;
(b) 	to 	declare 	a 	statute 	unconstitutional
The 	University notes 	that 	it 	is 	not 	seeking 	to 	have 	PERB
resolve 	a 	constitutional 	challenge 	to HEERA. 	Rather, 	the
University urges 	that 	PERB 	should 	interpret 	subsection 	(f) 	in 	a
manner which 	excludes 	housestaff 	from 	coverage, 	in 	order 	"to
insulate 	HEERA 	from violating 	article 	IX, 	section 	9".
If 	possible, 	constitutional 	challenges 	should be 	avoided
through 	statutory 	interpretations. 	(Leek v. 	Washington Unified
School District 	(1981) 	124 	Cal.App.3d 43 	[177 	Cal.Rptr. 	1 9 6 ] ;
Local 	21, 	International 	Federation 	of 	Professional 	and Technical
Engineers, 	AFL-CIO et. 	al. 	v. 	Rojas 	(1995) 	40 Cal.App.4th 670
[46 	Cal.Rptr.2d 	8 1 3 ] ; 	Link v. 	Antioch Unified School 	District
(1983) 	142 	Cal.App.3d 765 	[191 	Cal.Rptr. 	264].) 	Because 	this
decision does 	not 	do 	that, 	it 	is 	appropriate 	to 	explain why.
In 	Pacific 	Legal 	Foundation v. 	Brown 	(1981) 	29 	Cal.3d 	168
[172 	Cal.Rptr. 	487] 	(Pacific Legal Foundation), 	the court
reviewed 	a 	similar 	challenge 	to 	the 	constitutionality 	of 	SEERA.
Petitioners 	claimed 	that 	SEERA 	conflicted 	with 	the 	merit 	system
38

provisions of California Constitution, 	Article VII. 	The 	court
noted 	that 	the 	Legislature 	had carefully crafted 	the 	provisions
of 	SEERA with the 	constitutional 	mandates 	of Article 	VII 	"firmly
in mind, 	explicitly reaffirming the 	continued application of 	the
merit 	principle 	in 	the preamble 	of 	the 	act 	and 	fashioning the
major elements 	of 	the 	act 	in a manner calculated to minimize
potential 	conflict 	with the merit principle".
As 	a general 	principle 	of 	statutory construction, 	the 	court
stated that 	doubts 	regarding 	the 	Legislature's 	plenary authority
should be 	resolved 	in 	favor of 	the 	Legislature's 	action.
(2) 	Moreover, 	our past cases establish that
the 	presumption of 	constitutionality 	accorded
to 	legislative 	acts 	is particularly
appropriate 	when 	the 	Legislature 	has 	enacted
a 	statute 	with 	the 	relevant 	constitutional
prescriptions 	clearly in mind. 	[Citation.]
In such a case, 	the 	statute represents a
considered legislative 	judgment 	as 	to 	the
appropriate 	reach of 	the 	constitutional
provision. 	Although the ultimate
constitutional 	interpretation must rest, 	of
course, 	with the judiciary 	[citation], 	a
focused 	legislative 	judgment 	on 	the 	question
enjoys 	significant 	weight 	and 	deference 	by
the courts. 	[Pacific Legal 	Foundation at
p. 	180.]
The 	constitutionality of 	the MMBA has 	also been tested. 	In
Sonoma County Organization of 	Public 	Employees v. 	County of
Sonoma 	(1979) 	23 Cal.3d 296 	[152 Cal.Rptr. 	903], 	the court upheld
the 	sanctity of 	the 	collective 	bargaining agreements 	under 	the
MMBA. 	Thus 	the 	Legislature's 	original 	action 	in establishing a
framework 	for 	resolving 	employer-employee 	disputes 	through
collective bargaining was 	necessarily proper even 	though 	the
39

Constitution grants charter cities, 	for example, 	plenary
authority to 	set 	compensation.
In People ex rel. 	Seal Beach Police Officers Assn. 	v. 	City
of Seal Beach 	(1984) 	36 Cal.3d 591 	[205 Cal.Rptr. 	794] 	(Seal
Beach Police Officers Assn.), 	the court explicitly found the MMBA
constitutionally proper. 	In that 	case 	the 	city placed charter
amendments before 	the voters 	on matters 	involving terms 	and
conditions 	of 	employment 	without 	first 	satisfying 	the 	bargaining
requirements 	of 	the MMBA. 	The 	city argued that 	it 	had 	"the
absolute, 	unabridged constitutional 	authority to propose 	charter
amendments 	to 	its 	electorate, 	which authority could not 	be
impaired or 	limited by the 	requirements 	of 	the MMBA 	(Cal. 	Const.,
art. XI, 	§ 3, 	subd. 	(b))." 	The court stated:
While 	the 	Legislature 	established 	a procedure
for resolving disputes 	regarding wages, 	hours
and other conditions of employment, 	it did
not 	attempt 	to establish standards 	for the
wages, 	hours and other terms 	and conditions
themselves. 	Rather, 	it 	"set forth
reasonable, 	proper and necessary principles
which public 	agencies 	must 	follow 	in 	their
rules 	and regulations 	for administering 	their
employer-employee 	relations, 	. . . "
[Citation.]
In a footnote, 	the court 	in Seal Beach Police Officers Assn.
went 	on 	stating:
We 	emphasize 	that 	there 	is 	a 	clear
distinction between 	the 	substance 	of 	a public
employee 	labor 	issue 	and the 	procedure 	by
which it is resolved. 	Thus, 	there is no
question that 	"salaries 	of 	local 	employees 	of
a 	charter 	city constitute 	municipal 	affairs
and are not 	subject 	to general 	laws."
(Sonoma 	County Organization 	of 	Public
Employees v. 	County of Sonoma, 	supra, 	23
-
Cal.3d at p. 	317.) 	Nevertheless, 	the process
40

by which 	salaries 	are 	fixed 	is 	obviously a
matter of 	statewide 	concern and none 	could,
at this late stage, 	argue that a charter city
need not 	meet 	and 	confer 	concerning 	its
salary structure. 	[Seal 	Beach Police
Officers Assn. 	at pp. 	600-601, 	fn. 	11.]
The Appropriate 	Test 	for an Article 	IX Section 	9 	Challenge
Article 	IX, 	section 	9 of 	the California Constitution has
been 	interpreted by the 	courts 	as 	giving the Regents 	broad power
to organize 	and govern the University. 	In San Francisco Labor
Council v. 	Regents of the University of California 	(1980) 	26
Cal.3d 758 	[163 Cal.Rptr. 	460] 	(San Francisco Labor Council), 	the
court 	noted 	the 	University's 	"general 	immunity 	from Legislative
regulations" 	and that 	"the power of 	the Regents 	to operate,
control 	and 	administer the University is 	virtually exclusive."
In Goldberg v. 	Regents of 	the University of 	California 	(1967) 	248
Cal.App.2d 867, 	874 	[57 Cal.Rptr. 	463] 	and Regents of the
University of California v. 	Superior Court 	(1970) 	3 	Cal.3d 529,
540 	[91 Cal.Rptr. 	57], 	the court stated: 	"The Regents have the
general 	rule-making or policy making power 	in regard to 	the
University . 	. 	. 	and are 	. 	. 	. 	fully empowered with respect to
the 	organization 	and government 	of 	the 	University. 	. . . "
That power is not 	total 	however. 	In San Francisco Labor
Council, 	the 	court 	set 	out 	areas where 	the University 	is 	subject
to regulation.
(2) 	It 	is true the university is not
completely 	free 	from legislative 	regulation.
In addition to 	the 	specific provisions 	set
forth in article 	IX, 	section 9, 	there are
three 	areas 	of 	legislative 	regulation.
First, 	the Legislature 	is vested with the
power of 	appropriation, 	preventing the
41

regents 	from compelling appropriations 	for
salaries.[18] [Citations.]
Second, 	it 	is well 	settled that general
police 	power regulations 	governing private
persons 	and 	corporations 	may be 	applied 	to
the University. 	[Citations.] 	For example,
workers' 	compensation laws applicable to the
private 	sector may be 	made 	applicable 	to 	the
university.
Third, 	legislation regulating public 	agency
activity not 	generally applicable 	to 	the
public may be made 	applicable 	to the
university when 	the 	legislation 	regulates
matters 	of 	statewide 	concern not 	involving
internal 	university affairs. 	[Citation.]
It 	is 	this 	third area, 	legislation regulating public
agencies, 	that 	is at issue in this case. 	The test 	flows, 	in
significant part, 	from the 	court's holding in Tolman v. 	Underhi11
(1952) 	39 Cal.2d 708 	[249 P.2d 280] 	(Tolman). 	In that case the
court 	reviewed a University requirement 	that 	employees 	take 	an
oath that 	they were not 	members 	of 	the 	communist 	party. 	The
court 	held that 	laws 	passed by the 	Legislature will 	prevail 	over
matters 	which are 	not 	exclusively university affairs.
. 	. 	. 	It is well settled, 	however, 	that laws
passed by the 	Legislature 	under 	its 	general
police power will 	prevail 	over regulations
made by the 	regents 	with regard to matters
which are 	not 	exclusively university affairs.
[Citations.] 	There 	can be no question that
the 	loyalty of 	teachers at 	the university is
not 	merely a matter 	involving 	the 	internal
18For example, 	the Legislature 	appropriately regulated
decisions 	of 	the University under this 	authority by reducing 	the
number of 	specialty residency positions 	and 	increasing 	the 	number
of primary care 	residencies. 	This was 	appropriate even though it
intruded directly into decisions 	such as 	student 	admissions 	and
retention, 	course content, 	internal allocation of resources and
creation and 	termination of 	academic programs.
42

affairs of 	that 	institution but 	is a 	subject
of general statewide concern. 	. 	. 	. 	[Tolman
at p. 	712.]
Thus, 	the court 	interpreted what 	is exclusively University-
affairs very narrowly, 	finding that 	the 	loyalty of 	teachers 	at
the University was a matter of general 	statewide 	concern, 	and
therefore 	subject 	to 	legislative 	regulation.
The 	court 	went 	on to 	say that 	the 	Legislature's 	intent 	is
not 	measured only by the 	language used, 	but 	rather by the whole
purpose 	and scope 	of 	the 	legislative 	scheme. 	The 	court 	also
stated:
. 	. 	. 	Constitutional limitations upon the
Legislature's powers 	are 	to be 	strictly
construed, 	and any doubt 	as 	to 	its paramount
authority 	. 	. 	. 	will be resolved in favor of
its action. 	. 	. 	. 	[Tolman at p. 	712.]
In Coutin v. 	Lucas 	(1990) 	220 Cal.App.3d 1016 	[270 Cal.Rptr.
93], pet. hrg. den. August 15, 	1990, 	the court of appeal
interpreted what 	is 	exclusive 	internal 	University affairs 	very
narrowly and 	interpreted general 	statewide 	concerns 	of 	the
Legislature very broadly. 	The 	issue was 	whether the 	Legislature
could 	statutorily prohibit 	the 	Chief 	Justice 	of 	the 	State 	of
California 	from sitting on the University Board of 	Regents. 	The
court 	broadly defined the general 	statewide 	concern as 	a
legislative 	determination 	that 	judges 	should not 	be 	involved with
nonjudicial 	duties 	in a nonjudicial public 	entity. 	The 	court
found that 	the 	statutory removal 	of 	the 	chief 	justice 	from the
Board of 	Regents 	"surely constitutes matters 	of 	transcending
43

statewide 	concern, 	and is patently not 	'merely a matter 	involving
the internal affairs of 	[the University]'." 	(Id.. 	at p. 	1026.)
Even cases 	invalidating legislative 	regulation of 	the
University did so narrowly, 	and only with an actual 	dispute
before the court. 	In San Francisco Labor Council, 	the court
invalidated a prevailing wage 	statute 	because 	it 	interfered with
Article 	IX, 	section 9. 	In that 	case 	the 	legislation required the
University to 	set 	minimum salary rates 	at 	or above 	the prevailing
wage 	rates 	in various 	locations. 	The 	court 	distinguished the
prevailing wage 	statute 	from a minimum wage 	statute which would
have been an appropriate 	regulation. 	The 	court pointed out 	that
the prevailing wage 	legislation was not 	an appropriations bill,
nor was 	there 	any showing that 	the 	requirements 	had been made
"generally applicable 	to private persons 	and corporations".
Furthermore, 	the court 	found that 	the 	regulation was not 	one of
statewide 	concern even though 	it 	had been declared 	so by the
Legislature. 	To the 	contrary, 	the 	court 	found that while 	the
regulation claimed to 	establish minimum standards, 	it 	in effect
determined University wages 	based upon extrinsic 	facts, 	i.e.,
prevailing wages 	in the 	local 	area.
In Scharf v. 	Regents of 	the University of 	California 	(1991)
234 Cal.App.3d 1393 	[286 Cal.Rptr. 	227] 	(Scharf), 	the Legislature
amended the 	Education 	Code 	to 	require 	the 	University to provide
employees 	access 	to 	their personnel 	files 	as part 	of 	the peer
review tenure/promotion process. 	Following the guidance 	of 	San
Francisco Labor Council 	and Tolman. 	the 	court 	held that 	the
44

legislation at 	issue 	in 	Scharf 	subjected 	the University to 	a
different 	and more 	restrictive 	requirement 	regarding 	disclosure
of 	personnel 	files 	than most 	other public or private 	employers.
The 	court 	determined that 	there was 	no 	coherent 	statewide 	scheme
pertaining to the disclosure of personnel 	files, 	but 	rather an
array of 	diverse 	and 	conflicting regulations which were 	as
disparate 	as 	those pertaining 	to 	the prevailing wage 	issue 	in San
Francisco Labor Council. 	The 	court 	contrasted that 	to workers
compensation laws, 	which it noted may be made 	applicable 	to the
University.
A second 	reason 	the 	legislation 	in 	Scharf 	was 	rejected was
that 	the 	issue 	constituted a very 	significant 	intrusion 	into 	the
peer review process. 	The 	court believed that both the 	evaluation
of 	scholarship and the granting of 	tenure 	or promotion 	"is 	a
defining act 	of 	singular 	importance 	to 	an academic 	institution".
The 	court 	found it 	to be of 	comparable 	academic 	importance 	to 	the
establishment 	of 	the 	educational 	curriculum, 	which has 	long been
held within the 	authority of 	the University. 	(Hamilton v.
Regents of the University of California 	(1934) 	219 	Cal. 	663 	[28
P.2d 355], 	affd 293 U.S. 	245 	[79 L.Ed. 	343, 	55 S.Ct. 	197].)
Therefore, 	in applying the 	court's 	test 	from San Francisco
Labor Council 	to the 	case at 	hand, 	it 	is necessary to determine
whether HEERA regulates 	matters 	of 	general 	statewide 	concern
which are 	not 	merely 	internal 	or exclusively University affairs.
-
45

Matters 	of 	Statewide 	Concern
On 	several 	occasions 	the 	California 	Supreme 	Court 	has
recognized 	that 	the 	State's 	various 	collective 	bargaining
statutes 	are part 	of 	a general 	statewide 	comprehensive plan to
assure 	the 	peaceful 	resolution of 	employer-employee 	disputes 	in
the public 	sector. 	In Pacific Legal 	Foundation the 	court 	set 	out
the 	history of 	the 	State's 	comprehensive plan:
In 1972, 	following the 	first major state
employee 	strike, 	the Legislature 	created the
Assembly Advisory 	Council 	on 	Public 	Employee
Relations, 	chaired by UCLA Professor Benjamin
Aaron, 	to formulate recommendations 	"for
establishing 	an 	appropriate 	framework 	within
which disputes 	can be 	settled between public
jurisdictions 	and their employees."
[Citation.] 	In its 	1973 	report 	the Advisory
Council 	recommended 	the 	enactment 	of 	a
comprehensive 	state 	law, 	modeled on the
National 	Labor Relations Act, 	which would
afford 	formal 	collective 	bargaining 	rights 	to
all public 	employees.
The Legislature, 	however, 	was unable to agree
on a 	comprehensive 	bill 	covering all 	public
employees 	and decided 	instead 	to 	draft
separate 	collective 	bargaining 	statutes
directed 	to 	the 	specific 	needs 	and problems
of 	different 	categories 	of public 	entities.
In line with this approach, 	the Legislature
in 	1975 	first 	enacted the 	Educational
Employment Relations Act 	(EERA) 	[citation];
EERA repealed the Winton Act, 	established
formal 	negotiating rights 	for public 	school
employees, 	and created the Educational
Employment Relations Board, 	an expert, 	quasi-
judicial 	administrative 	agency modeled 	after
the National Labor Relations Board, 	to
enforce the act. 	In 1977, 	the Legislature
adopted SEERA, 	the 	legislation challenged 	in
the 	instant proceeding, 	to provide 	formal
collective 	bargaining 	rights 	to 	state
employees. 	Finally, 	the legislative sequence
was 	completed in 	1978 	with the 	adoption of
the 	Higher 	Education 	Employer-Employee
Relations Act 	(HEERA) 	[citation], 	granting
46

similar rights 	to employees 	in the 	state
university 	and University 	of 	California
systems. 	As this brief 	historical overview
demonstrates, 	SEERA constitutes one
significant 	component 	in a network of 	recent
statutes 	affording 	collective 	bargaining
rights 	to California public 	employees. 	[Id.,
at p. 	177.]
In Regents, 	the court 	reiterated the 	comprehensive nature of 	the
collective 	bargaining 	statutes:
In 1978, 	the California Legislature enacted
HEERA, 	which extended collective 	bargaining
rights 	to 	employees 	of 	the University of
California, 	Hastings College of 	the Law and
the 	California 	State 	University.1191
(Regents at pp. 	604-605.)
The general 	statewide plan is 	clear and undeniable. 	Cities,
counties 	and 	special 	districts 	are 	covered by the MMBA.20 Public
education up 	through community colleges 	is 	covered by the 	EERA.
The 	State 	of 	California 	and 	its 	employees 	are 	covered by SEERA.
The 	University of 	California 	and the 	California 	State 	University
are 	covered by HEERA. 	Clearly HEERA is but 	one part 	of 	this
19Employees of 	these 	institutions were 	among the 	last
California public 	employees 	to 	be 	accorded 	collective 	bargaining
rights. 	[Citation.]
PERB administers HEERA 	(§ 3560 et seq.), 	the State Employer-
Employee Relations Act 	(SEERA) 	(§ 	3512 et seq.) 	which accords
collective bargaining rights 	to 	state 	civil 	service 	employees 	and
the Educational Employment Relations Act 	(EERA) 	(§ 	3540 et 	seq.)
which accords 	collective 	bargaining rights 	to public 	school
employees 	other than 	those 	covered under HEERA.
20California 	transit 	districts 	are 	also 	subject 	to 	labor
relations provisions 	found 	in 	the 	Public 	Utilities 	Code 	enabling
statutes, 	joint powers agreements, 	incorporation articles and
bylaws 	and the MMBA. 	(California 	Public 	Sector Labor Relations,
Matthew Bender & Co. 	Inc. 	(1989) 	section 2.13[1][a].)
47

master plan ensuring 	that 	processes 	are 	available 	to 	employers
and employees 	to help them resolve 	employer-employee 	conflict.
That 	statewide 	plan was 	created to 	address 	a 	general 	concern
over 	the 	manner 	in which public 	employees 	and employers 	resolved
their differences. 	The 	State has 	a paramount 	interest 	in
fostering stable, 	long term, 	employer-employee relationships.
In relevant part, 	HEERA section 3560 	states:
(a) 	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.
(d) 	The people and the aforementioned higher
education employers 	each have 	a 	fundamental
interest 	in 	the preservation and promotion of
the 	responsibilities 	granted by the people 	of
the State of California. 	Harmonious
relations 	between 	each higher 	education
employer 	and 	its 	employees 	are 	necessary to
that 	endeavor.
(e) 	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 	statute 	are 	carried out
in 	an 	atmosphere which permits 	the 	fullest
participation by employees 	in 	the
determination of 	conditions 	of 	employment
which affect them. 	. 	. 	.
In addition, 	HEERA section 3561(a) 	provides:
It 	is 	the 	further purpose of 	this 	chapter to
provide 	orderly 	and 	clearly 	defined
procedures 	for meeting 	and 	conferring 	and 	the
resolution of 	impasse, 	and to define and
prohibit 	certain practices 	which are 	inimical
to the public 	interest.
48

Other State 	collective bargaining 	laws 	are 	in accord.21 Thus,
the 	State's 	public 	sector bargaining 	statues 	explicitly note 	the
State's 	interest 	in long term, 	stable 	employer-employee
relationships.
The 	courts 	have 	also noted the 	State's 	interest 	in stable
employer-employee relationships. 	In Regents at page 	622, 	the
court 	explicitly recognized the 	State's 	fundamental 	interest 	in
the 	development 	of 	harmonious 	and cooperative 	labor 	relations
between public 	employers 	and their employees. 	(See 	also 	Seal
Beach Police Officers Assn., 	promotes 	full 	communications between
21MMBA section 3500 	states:
It 	is 	the purpose of 	this 	chapter to promote
full 	communication between public 	employers
and 	their 	employees 	by providing 	a 	reasonable
method of 	resolving disputes 	. . . . 	It 	is
also the purpose of 	this 	chapter to promote
the 	improvement 	of personnel 	management 	and
employer-employee 	relations 	within various
public 	agencies 	in 	the 	State 	. . . .
EERA section 3540 	states:
It 	is 	the purpose of 	this 	chapter to promote
the 	improvement 	of 	personnel 	management 	and
employer-employee 	relations 	within the 	public
school 	systems 	in 	the 	State 	. . . .
SEERA section 3512 	states:
It 	is 	the purpose of 	this 	chapter to promote
full 	communication between the 	state 	and 	its
employees 	by providing a 	reasonable means 	of
resolving disputes 	. . . . 	It 	is 	also 	the
purpose 	of 	this 	chapter to promote 	the
improvement 	of 	personnel 	management 	and
employer-employee 	relations 	within 	the
State 	. . . . 	It 	is 	further the purpose 	of
this 	chapter 	. . . 	to 	foster peaceful
employer-employee relations, 	. 	. 	.
49

public 	employers 	and employees 	and 	improves 	personnel 	management
and employer-employee 	relations within various public 	agencies;
and San Diego Teachers Association v. 	Superior Court 	(1979) 	24
Cal.3d 1 	[154 Cal.Rptr. 	893], 	strong public interest in
minimizing 	interruptions 	of 	services.)
Thus, 	it 	is 	clear that 	in establishing HEERA the Legislature
sought 	to regulate a matter of general 	statewide 	concern, 	i.e.,
creating 	stable, 	long 	term employer-employee 	relationships
fostering 	labor peace. 	The next 	step 	is 	to determine whether
HEERA 	intrudes 	on matters 	which are 	exclusively 	internal
University affairs.
Internal 	University Affairs
In drafting HEERA the 	Legislature 	was 	mindful 	of 	the
University's 	constitutional 	status 	and 	carefully 	crafted 	the
legislation to 	avoid constitutional 	infirmities. 	The 	two most
obvious 	examples 	of 	these 	legislative 	efforts 	are 	sections
3561(b) 	Purposes, 	and 3562(q) 	Definitions. 	The Purposes section,
3561(b) states:
(b) 	The Legislature recognizes 	that 	joint
decision making 	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
50

Academic 	Senates 	of 	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.
Under Definitions, 	section 3562(q), 	a completely separate
"scope 	of 	representation" 	section was 	designed 	to 	avoid 	intrusion
into University academic matters. 	It 	states:
(q) 	For purposes 	of 	the University of
California only, 	"scope 	of 	representation"
means, 	and is limited to, 	wages, 	hours of
employment, 	and other 	terms 	and conditions 	of
employment. 	The 	scope 	of 	representation
shall 	not 	include:
(1) 	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.
(2) 	The 	amount 	of 	any 	fees 	which are 	not 	a
term 	or 	condition 	of 	employment.
(3) 	Admission requirements 	for students,
conditions 	for 	the 	award 	of 	certificates 	and
degrees 	to 	students, 	and the 	content 	and
supervision of courses, 	curricula, 	and
research programs, 	as 	those 	terms 	are
intended 	by 	the 	standing 	orders 	of 	the
regents 	or 	the 	directors.
(4) 	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,
51

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.
Thus, 	key University internal 	matters were 	excluded from
coverage by HEERA. 	The University argues, 	however, 	that 	this 	is
insufficient 	protection 	from 	intrusion 	into University affairs.
According to the University, 	HEERA subjects 	the University to
potential 	determinations 	by PERB 	that 	it 	refused to bargain 	in
good 	faith, 	may delay the 	implementation of policies 	and
procedures, 	requires 	the University to relinquish 	sole 	discretion
over matters 	that 	are within the 	scope of 	representation, 	has 	the
potential 	to 	interfere with the 	relationship between 	students 	and
faculty members, 	would limit 	collaborative decision making on
campus, 	creates 	the 	risk that non-University arbitrators will
intrude 	into academic decisions, 	would interfere with patterns of
governance, 	and last but not 	least, 	threatens the University's
accreditation with the ACGME.22
22The 	University's 	claim that 	its 	accreditation 	could be
jeopardized is 	simply groundless. 	In spite of 	efforts 	to do 	so
at 	the hearing, 	the University was unable 	to 	show any credible
evidence 	that 	the 	accreditation of 	any residency program, 	at 	any
university, 	medical 	center or hospital 	throughout 	the United
States, 	has 	ever been jeopardized by any collective bargaining
statute.
52

These 	fears 	are 	either premature, 	overstated, 	or lack proof
and 	fall 	squarely within 	the 	"doomsday cry" 	rejected by the 	court
in Regents. 	The court also noted that 	the 	arguments 	are
premature.
Moreover, 	the University's argument 	is
premature. 	. 	. 	. 	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
"[t]o determine 	in disputed cases whether 	a
particular 	item 	is 	within or without 	the
scope of representation." 	(Sec. 	3563,
subd.(b).) 	[Regents at p. 	623.]
Eleven years after the decision in Regents, 	the University's
argument 	is 	still 	premature. 	If 	and when an elected exclusive
representative 	seeks 	to negotiate 	over an 	item potentially
intruding on University internal 	affairs, 	the parties may be 	able
to 	harmonize 	employee 	interests 	with the University's
constitutional 	concerns. 	If 	the parties 	themselves 	are unable 	to
reach a 	solution, 	then PERB will 	have 	the 	opportunity to decide
the 	issue. 	As noted by the 	courts, 	PERB was 	created as 	the
agency with the 	expertise 	to resolve 	such disputes. 	For example,
when PERB 	has 	an actual 	bargaining dispute before 	it, 	PERB may be
able 	to separate economic 	issues 	from academic 	issues. 	If 	so,
the 	University may be 	required 	to negotiate 	those 	economic 	issues
and may not be required to negotiate 	the 	academic 	issues. 	If 	in
PERB's expert 	opinion 	it 	is not possible 	to 	separate 	the 	issues
after 	looking at 	an actual 	dispute, 	PERB may indeed 	find that 	the
matter 	is 	outside 	the 	scope 	of 	representation because 	it
53

impermissibly 	intrudes 	into 	the 	University's 	constitutional
authority.
Thus, 	with an actual dispute before 	it, 	rather than a facial
challenge, 	PERB may be able 	to harmonize 	the obligations 	of HEERA
with the 	authority of Article 	IX, 	section 	9. 	If 	the matter is
not 	resolved, 	then the University may at 	that 	time appropriately
resort 	to the courts.23
The 	court 	in Pacific 	Legal 	Foundation echoed 	the 	Regents
court 	in 	rejecting a 	facial 	challenge 	to 	the Legislature's
collective 	bargaining 	scheme:
Because 	no 	actual 	jurisdictional 	conflict
between PERB 	and the 	State 	Personnel 	Board
confronts us in this proceeding, 	we have no
occasion 	to 	speculate 	on how some
hypothetical 	dispute 	that 	might 	be presented
for decision 	in 	the 	future 	should properly be
resolved. 	. 	. 	. 	[Pacific Legal Foundation at
p. 	200.]
The 	court 	also 	dismissed 	concerns 	about 	SEERA 	intruding upon
the 	Governor's 	constitutional 	authority:
. 	. 	. 	Although SEERA obligates the Governor
and exclusive 	representatives 	to bargain 	in
good faith, 	nothing in the act purports 	to
compel 	the 	Governor 	to agree 	to 	conditions
that 	he would feel 	obligated to 	"blue pencil"
or veto. 	. 	. 	. 	[Id., at pp. 201-202.]
HEERA itself 	also 	specifically 	states 	under the 	definition of
"meet 	and confer":
. 	. 	. 	If agreement is reached between
representatives 	of 	the 	higher education
23University 	arguments 	seem 	to 	be 	based upon 	a presupposition
that neither the parties, 	nor PERB, 	nor the courts, 	but rather
only the University, 	will be 	skillful 	enough to make 	these
distinctions 	as 	they arise.
54

employer and the 	exclusive 	representative,
they 	shall 	jointly prepare 	a written
memorandum of 	understanding which 	shall 	be
presented 	to 	the 	higher 	education 	employer
for concurrence. 	However, 	these obligations
do not 	compel 	either party to agree 	to any
proposal 	or require 	the making of 	a
concession. 	[Sec. 	3562(d).]
In rejecting a 	similar constitutional 	challenge 	of 	SEERA the
court 	dismissed 	the 	argument 	that 	collective bargaining may 	lead
to 	future 	agreements 	in contravention of 	the 	State's
constitutional 	authority.
We recognize, 	of course, 	that theoretically
the product 	of 	the 	collective bargaining
process 	may possibly 	in 	specific 	instances
conflict with the merit principle of
employment 	embodied in article VII. 	Such a
conflict would be most 	evident, 	for example,
if 	the 	Governor and an exclusive 	bargaining
representative 	agreed to 	a memorandum of
understanding purporting 	to 	authorize 	hiring
or promotion on a politically partisan basis.
The provisions of SEERA, 	however, 	neither
explicitly nor 	implicitly 	authorize 	any 	such
encroachment 	on 	the merit 	principle 	of
article VII 	through the 	collective bargaining
process. 	On the contrary, 	in drafting SEERA
the 	Legislature 	explicitly 	reaffirmed 	the
primacy of 	the 	merit 	principle 	of 	employment
and crafted the 	statute 	carefully 	so 	as 	to
minimize 	any potential 	conflict 	with 	such
principle. 	[Pacific 	Legal 	Foundation at
p. 	185; 	emphasis in original.]
The 	California 	Supreme 	Court 	concluded with 	the 	following:
In this 	ongoing and vital process 	of 	evolving
employer-employee 	relations, 	so necessary to
the promotion of 	harmonious 	understanding
between the parties, 	the 	invalidation of this
statute would be 	a 	sorrowful 	step 	backwards.
(Id.. 	at p. 	202.)
HEERA is 	a process 	for 	resolving disputes 	and 	improving
employer-employee 	relations. 	It 	is part of 	a statewide plan
55

created by the 	Legislature 	to 	address 	a general 	statewide 	concern
regarding harmonious 	employer-employee 	relationships 	in 	the
public 	sector. 	Nothing on the 	face 	of HEERA intrudes 	into 	the
constitutional 	authority of 	the University. 	If 	an exclusive
representative 	is 	elected to 	represent 	housestaff 	and 	the
University believes 	that 	representation 	intrudes 	into 	its
constitutional 	authority, 	PERB would then have 	the 	opportunity to
harmonize 	any conflicting obligations 	and 	avoid 	a 	constitutional
conflict. 	Denying housestaff 	the 	rights 	and protection 	afforded
them by 	the 	Legislature 	under HEERA 	simply 	to 	avoid 	that 	process
is unpersuasive at best.
CONCLUSION
Based upon the 	above 	findings 	of 	fact, 	discussion and the
entire 	record 	in this 	case:
1. 	Consistent with the decision in the Regents 	case,
medical 	housestaff 	on 	rotations 	in University owned and operated
facilities 	are 	found to be 	employees 	within the 	meaning of
section 3562 (f) 	of HEERA;
2. 	Campuswide units 	are 	appropriate 	for bargaining;
3. 	Housestaff 	on rotations 	at 	non-University owned and
operated 	facilities 	are not 	employees 	within 	the meaning of
section 3562(f) 	of HEERA;
4. 	Bargaining rights 	and obligations 	imposed by HEERA can
be 	harmonized with 	the 	rights 	and 	obligations 	created by
Article 	IX, 	section 9 of 	the California Constitution.
56

PROPOSED 	ORDER
The 	following housestaff 	unit 	is 	found to be 	appropriate 	for
meeting and negotiating at 	each of 	the 	following 	locations:
University of 	California at 	Los Angeles, 	University of 	California
at 	San Francisco, 	University of California at Davis.
Shall 	Include:
All 	medical 	housestaff who 	are 	employed by the
University of 	California 	and are 	on 	rotation within 	a
facility owned 	and 	operated by 	the 	University,
including Chief Residents who are 	in their 	final 	year
of 	a 	residency program.
Shall 	Exclude:
All managerial, 	supervisorial, 	and confidential
employees.
All medical 	housestaff 	on rotations 	at 	facilities 	not
owned 	and operated by the 	University of 	California.
All veterinary, 	pharmacy and dental 	residents.
All 	fellows 	(housestaff 	who 	have 	completed 	their 	first
board program).
Chief 	Residents 	who have 	completed 	their 	first 	board
residency 	program.
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,
57

relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually-
received before 	the close of business 	(5:00 p.m.) 	on the 	last 	day
set 	for filing 	". 	. 	. o r when sent by telegraph or certified or
Express United States mail, 	postmarked not 	later than the 	last
day set for filing . 	. 	. 	." 	(See Cal. 	Code 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 Regs., 	tit. 	8, 	secs.
32300, 	32305 and 32140.)
James 	W. 	Tamm
Administrative 	Law 	Judge
58