Champion v. Public Employment Relations Board

IN THE COURT OF APPEALS OF IOWA

No. 21-1995
Filed February 8, 2023

RICHARD CHAMPION and ROBERT WINTERTON,
Petitioners-Appellants,

vs.

PUBLIC EMPLOYMENT RELATIONS BOARD,
Respondent-Appellee,

STATE OF IOWA, BOARD OF REGENTS,
Intervenor.
________________________________________________________________

Appeal from the Iowa District Court for Chickasaw County, Margaret L.

Lingreen, Judge.

Richard Champion and Robert Winterton appeal the district court’s ruling

on judicial review upholding the Public Employment Relations Board’s decision on

the petition for bargaining unit clarification. AFFIRMED.

Richard D. Champion, Manassas Park, Virginia, and Robert W. Winterton,

New Hampton, self-represented appellants.

Brenna Bird, Attorney General, Diana S. Machir (until withdrawal), Benjamin

J. Flickinger (until withdrawal), and Jeffrey C. Peterzalek, Assistant Attorneys

General, for appellee Public Employment Relations Board.

Andrew Tice and Ann Smisek of Ahlers & Cooney, P.C., Des Moines, for

appellee Board of Regents.
2

Heard by Bower, C.J., Schumacher, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
3

BOWER, Chief Judge.

Richard Champion and Robert Winterton1 appeal the district court’s ruling

on judicial review upholding the Public Employment Relations Board’s (PERB)

decision on their petition for bargaining unit clarification. Petitioners claim the plain

language of the unit encompasses law research assistants who provide services

to law professors, entitling them to inclusion in the bargaining unit. Because the

Petitioners have failed to show PERB’s decision is inconsistent with the agency’s

prior practice or precedents and is not unreasonable, arbitrary, capricious, or an

abuse of discretion, we affirm.

I. Background Facts and Proceedings.

This appeal concerns a petition for collective bargaining unit clarification

filed on May 19, 2017, pursuant to Iowa Administrative Code rule 621-4.7.2

1 Winterton was allowed to intervene after these proceedings were initiated by
Champion. We will refer to them collectively as Petitioners.
2 Iowa Administrative Code rule 621-4.7 states:

A petition to clarify the inclusion or exclusion of job
classifications or employees in an agency-determined bargaining
unit may be filed by the public employer, an affected public
employee, or the certified employee organization. Such petition may
be filed only if the bargaining unit is represented by a certified
bargaining representative. Insofar as applicable, the procedures for
such filing shall be as provided in subrule 4.6(1).
Rule 621-4.6(1), governing the amendment of a unit, provides:
A petition for amendment of an agency-determined bargaining
unit may be filed by the public employer or the certified employee
organization. The petition shall contain:
a. The names, addresses, telephone numbers and email
addresses of the public employer and the employee organization or
their respective representatives.
b. An identification and description of the proposed amended
unit.
c. The names and addresses of any other employee
organizations which claim to represent any employees affected by
4

[T]he unit clarification proceeding is intended to clarify the make-up
of the unit as presently constituted.
Thus, . . . the principal focus is on whether the position at
issue does constitute part of the existing bargaining unit, specifically,
whether the position is encompassed by the wording of the present
bargaining unit description. If that description itself unambiguously
resolves the question, the inquiry is concluded. If, however, the unit
description is ambiguous with regard to the position at issue,
attention is turned to other factors which might be probative of
whether the position falls within the determined unit, including such
matters as whether it has traditionally been treated as such, whether
similar positions or persons who perform similar duties are included
in the unit, and like factors. But again, the focus is on those matters
probative of whether the position is and has been in the bargaining
unit, not whether it should be or should have been placed in the
bargaining unit.

E. Iowa Cmty. Coll. Higher Ed. Ass’n, 82 PERB 2110, at *3–4 (1982).3

The relevant bargaining unit here, COGS,4 has been represented by United

Electrical Radio & Machine Workers of America, Local 896 (UE), since certification

on May 6, 1996. Petitioners assert they are Law Research Assistants

encompassed by the wording of the present bargaining unit description:

INCLUDED: All currently enrolled graduate and professional
students with a 25% or more appointment (i.e. teaching at least one
course and/or providing service for at least [ten] hours a week)
employed as: Teaching Assistants (FT19), Research Assistants

the proposed amendment or a statement that the petitioner has no
knowledge of any other such organization.
d. Job classifications of the employees as to whom the issue
is raised, the number of employees, if any, in each classification, and
whether each job classification qualifies as a public safety employee.
e. A statement identifying the current status of the unit as
either a public safety or a non-public safety unit and the change, if
any, to the status of the unit which would result from the requested
amendment.
f. A specific statement of the petitioner’s reasons for seeking
amendment of the unit and any other relevant facts.
3 PERB decisions can be found by database search at https://www.iowaperb.org

under “PERB and Court Decisions,” here, case number 2110.
4 This is an acronym for the organization that sought to represent the group in

1993, Campaign to Organize Graduate Students.
5

(FR19), and Law Research Assistants (FL19) who provide services
to the University in exchange for salary compensation.

EXCLUDED: 1. Research Assistants (FR19 or FL19) whose
appointments are (a) primarily a means of financial aid which do not
require the individuals to provide services to the University, or
(b) which are primarily intended as learning experiences which
contribute to the students’ progress toward their graduate or
professional program of study or (c) for which the students receive
academic credit. . . .

Petitioners alleged:

The unambiguous language of the order of certification
includes current FL19 Law Research Assistant positions who serve
law professors. Workers in those positions work at least [ten]
hours/wk, provide service (substantially similar to those in the unit),
don’t earn academic credit for their work, and whose work,
consequently, does not “contribute to the students’ progress toward
[their JD degree].”

The State of Iowa Board of Regents (BOR) rejected the assertion the

present bargaining unit includes law research assistants who are assigned to

faculty. Evidence and testimony were presented at a September 22, 2017 hearing

before an administrative law judge (ALJ), who issued a proposed ruling on

February 11, 2019.

The ALJ outlined how the BOR and COGS initially reached the stipulation

as to who was included and excluded:

When COGS and the [BOR] agreed to the unit composition in
1993, the University employed law research assistants who worked
at the law school bookstore, library, and computer lab. It also
employed law research assistants who worked for faculty members.
Based upon the parties’ agreement, law research assistants that
worked at the library, bookstore[,] or computer lab were included in
the unit because they provided a service that would have required
hiring another employee if the assistantship was not in existence.
The law research assistants who worked for faculty members were
excluded based on one or more of the listed exclusions.
In 1996, UE petitioned PERB to conduct a representation
election among the stipulated bargaining unit of teaching and
6

research assistants. The University submitted to PERB a list of
eligible voters, i.e., a list of current teaching and research assistants
included in the unit. The voter list did not include law research
assistants assigned to work for faculty members. The record does
not demonstrate that UE objected to the exclusion of this group of
law research assistants. Following the election, UE was certified as
the unit’s exclusive bargaining representative on May 6, 1996.

The ALJ noted UE and BOR have negotiated successive bargaining agreements

since 1996 and, despite an occasional question arising about those in the unit,

they have not treated law research assistants who work for faculty members as

included. The ALJ observed:

As of fall 2017, the law school had approximately 470 students
and sixty faculty members. For the 2017-18 academic year, it had
119 law research assistants assigned to work for faculty members.
In the absence of these research assistantships, the University
would not hire 119 employees to assist faculty members in the
capacity of a law research assistant.

The ALJ noted Petitioners were students at the University of Iowa College

of Law who hold twenty-five percent appointments as law research assistants

assigned to work for faculty members.

Upon acceptance to the University’s law school, Petitioners were all
guaranteed, but not required to accept, an appointment as a law
research assistant in the second and third year of law school.
Along with their acceptance letter, Petitioners were provided
information regarding their specific research assistant appointment.
The position was described as being “primarily intended as learning
experiences that contribute to the student’s progress toward a
program of study.” The provided information also informed them the
assistantship would provide an opportunity to enhance their legal
education through professional training as legal employees, add
experience to their resume, receive mentoring and form lasting
professional relationships with law school faculty. Petitioners were
informed that no academic credit is earned for working as a quarter-
time research assistant to a faculty member.
Upon acceptance to the University, Petitioners were awarded
financial aid packages. They were provided scholarships to cover
nonresident tuition costs for their first year of law school. In their
second and third year, however, Petitioners were informed their
7

scholarship award would only cover resident tuition cost. To make
up the difference between nonresident to resident tuition rate,
Petitioners were guaranteed a research assistant position as part of
their financial aid package. This position would qualify them for
resident tuition in the second and third year of law school under a
[BOR] policy that treats all nonresident students who work as
quarter-time research assistants as resident students for tuition
purposes. Thus, the amount of the financial aid Petitioners received
in the second and third year of law school was based on their
acceptance of the research assistant position. By accepting their
guaranteed assistantships, Petitioners were assessed resident
tuition. For the 2017-18 academic year, the yearly resident tuition
was $23,650 and the nonresident tuition was $42,390. The
Petitioners’ guaranteed appointment provided them with a tuition
reduction of about $9370 per semester or $18,740 per academic
year.
Available research assistant positions are advertised on the
University’s career website. Students are able to apply for positions
with faculty members that teach in their legal area of interest.
However, in instances where the University guaranteed a position
but the student is unable to secure one, the University creates a
position and pairs the student with a faculty member. In their
positions as law research assistants, Petitioners perform tasks such
as conducting legal research on various topics, compiling research
findings in legal memoranda, checking legal citations and assisting
in preparation of presentations on legal topics. The specific work that
Petitioners perform is directed by their assigned faculty members.
For their work as quarter-time law research assistants,
Petitioners are provided salary compensation in the amount of
$1087.50 per semester, paid $217.50 monthly. Petitioners are
expected to work ten hours a week during the academic year and
required to report their hours through the University’s time-reporting
system. In instances when a law research assistant does not meet
the ten-hour weekly requirement, the student is still paid at the
quarter-time appointment salary rate. Furthermore, as long as the
student is classified as a quarter-time law research assistant, the
student continues to qualify for the [BOR]’s resident tuition reduction.
In instances when a quarter-time research assistant fails to work a
minimum of ten hours a week, the University has the option to require
the student to pay the additional tuition. However, it does not appear
the University has ever exercised this option once the tuition
reduction is granted.

The ALJ concluded Petitioners were “not categorically included or excluded

by the wording of the unit description.” “Instead, the unit language dictates that
8

quarter-time law research assistants ‘who provide services to the University in

exchange for salary compensation’ are included in the unit as long as the primary

purpose of their research assistantship does not fall under one of the listed

exclusions.”

The parties disagree whether Petitioners “provide services to the

University.” Petitioners read the phrase broadly and assert their work for the

University is plainly encompassed within the inclusion language. The BOR asserts

COGS and the University had a specific understanding of the phrase, which was

intended to differentiate between law research assistantships that were created to

fulfill a business need of the University, i.e., the University needs employees in

those positions, from the rest of law research assistantships that were created to

benefit the student, such as through financial aid packages, learning experiences,

or academic credit. The parties also disagree whether the 1(a)-financial-aid and

1(b)-learning-experiences exclusions apply to Petitioners. There is no

disagreement Petitioners do not receive academic credit and exclusion 1(c) is not

applicable.

The ALJ concluded:

Ambiguity exists specifically regarding the meaning of the phrase
“provide services to the University” as it was contemplated by the
parties to the stipulation in 1993. Furthermore, evaluating the
applicability of the exclusion categories to this group of research
assistants requires looking beyond the unit description in order to
determine the primary purpose of their appointments. Thus,
Petitioners’ inclusion in the unit requires consideration of other
factors which might be probative to whether quarter-time law
research assistants assigned to work for faculty members are within
the determined unit.
9

After considering relevant factors and historical context, the ALJ found the

Petitioners were not within the existing bargaining unit of graduate and

professional students employed by the University of Iowa as teaching and research

assistants. The proposed decision of the ALJ recommended dismissing the

petition for unit clarification.

Petitioners appealed to PERB. After considering the matter, PERB

concluded:

The record demonstrates that the primary purpose of these law
research appointments is to provide learning experiences and
financial aid. The parties had agreed that law research appointments
for these two primary purposes are ineligible for unit inclusion.
....
The evidence does not support finding that the law research
assistants who work for faculty have been traditionally treated by the
parties as within the present bargaining unit. Nor is there evidence
of any other factor indicative of their inclusion in the unit. Based on
the record, the law research assistants who work for faculty are not
and have not been in the presently constituted bargaining unit.

Petitioners then sought judicial review in the district court, which affirmed

the PERB ruling.

On appeal, Petitioners continue to press their claim that the plain language

of the unit encompasses their services as research assistants assigned to law

professors, entitling them to inclusion in the bargaining unit.5 They assert the

5 At oral argument, the court questioned whether the appeal was moot in light of
the Petitioners’ completion of their legal studies. See Homan v. Branstad, 864
N.W.2d 321, 328 (Iowa 2015) (“Courts exist to decide cases, not academic
questions of law. For this reason, a court will generally decline to hear a case
when, because of changed circumstances, the court’s decision will no longer
matter. This is known as the doctrine of mootness.”). The Petitioners urged the
court to decide the issue under the public-importance exception to the mootness
doctrine.
Application of the exception is appropriate “where matters of public
importance are presented and the problem is likely to recur.” Id. at 330 (citation
10

district court declared the phrase “provide services to the University” to be

ambiguous without any explanation, the court found the phrase “contribute to the

student’s progress toward their graduate of professional program of study” to be

ambiguous by considering matters beyond the wording of the present bargaining

unit, and even if the wording of bargaining unit is ambiguous, this court should

conclude Law Research Assistants who work for faculty are unambiguously

included in the bargaining unit.

PERB argues its decision is consistent with the agency’s prior practice or

precedents and the analysis “reveals that the Law Research Assistant at issue is

and was excluded from the unit.” Intervenor BOR has also filed a brief in support

of the district court’s ruling.

II. Scope and Standard of Review.

Judicial review of agency decisions is governed by Iowa Code section

17A.19(10) (2020). The court “may grant relief if the agency action has prejudiced

the substantial rights of the petitioner, and the agency action meets one of the

enumerated criteria contained in section 17A.19(10)(a) thru (n).” Burton v. Hilltop

Care Ctr., 813 N.W.2d 250, 255–56 (Iowa 2012) (citation omitted). “On our review

of the district court’s decision, we apply the standards of chapter 17A to determine

if our conclusions are the same as those of the district court. If so, we affirm;

omitted). In determining whether we should apply the exception, we consider four
factors: “(1) the private or public nature of the issue; (2) the desirability of an
authoritative adjudication to guide public officials in their future conduct; (3) the
likelihood of the recurrence of the issue; and (4) the likelihood the issue will recur
yet evade appellate review.” Id. (citation omitted). While a close question, we will
decide the issue on the merits.
11

otherwise, we reverse or otherwise modify.” Winnebago Indus., Inc. v. Haverly,

727 N.W.2d 567, 571 (Iowa 2006).

Petitioners allege the agency action is invalid as an “[a]ction other than a

rule that is inconsistent with the agency’s prior practice or precedents, unless the

agency has justified that inconsistency by stating credible reasons sufficient to

indicate a fair and rational basis for the inconsistency.” See Iowa Code

§ 17A.19(10)(h).

The intent of paragraph (h) is not to prohibit any change in practice
or procedure, but rather, the rule requires “consistency in reasoning
and weighing of factors leading to a decision tailored to fit the
particular facts of the case.” Thus, “an agency’s failure to conform
to its prior decisions[,] or furnish sufficient reasoning from which to
distinguish them, may give rise to a reversal under [chapter 17A].”

Off. of Consumer Advoc. v. Iowa Utils. Bd., 770 N.W.2d 334, 341–42 (Iowa 2009)

(internal citations omitted). Under section 17A.19(10)(h), an agency action may

be overturned when it is unreasonable, arbitrary, capricious, or an abuse of

discretion. Id. at 341. The burden of demonstrating the required prejudice and the

invalidity of agency action is on the party asserting invalidity. Iowa Code

§ 17A.19(8)(a).

III. Discussion.

Petitioners argue PERB’s ruling is unreasonable, arbitrary, capricious, and

an abuse of discretion. PERB asserts its interpretation that law research

assistants assigned to faculty are excluded from the class is consistent with its

prior practice or precedents. The district court agreed with PERB.

“An agency’s action is ‘arbitrary’ or ‘capricious’ when it is taken without

regard to the law or facts of the case. Agency action is ‘unreasonable’ when it is
12

‘clearly against reason and evidence.’” Soo Line R.R. v. Iowa Dep’t of Transp.,

521 N.W.2d 685, 688–89 (Iowa 1994) (internal citations omitted)). “An abuse of

discretion occurs when a ruling rests on grounds or reasons clearly untenable or

unreasonable.” Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595, 598 (Iowa 1997).

“[A]buse of discretion is synonymous with unreasonableness, and involves lack of

rationality, focusing on whether the agency has made a decision clearly against

reason and evidence.” Id. (citation omitted).

A. Interpretation of bargaining unit language. The task is to determine

whether the position of law research assistant assigned to faculty is encompassed

by the wording of the present bargaining unit description. When interpreting an

agreement, we look at the words chosen to determine “what meanings are

reasonably possible” and, if the terms are ambiguous, to choose among

reasonable meanings. Walsh v. Nelson, 622 N.W.2d 499, 503 (Iowa 2001)

(citation omitted). “[T]he disputed language and the parties’ conduct must be

interpreted ‘in the light of all the circumstances’ regardless of whether the language

is ambiguous.” Id. (citation omitted).

This idea is expressed in Restatement (Second) of Contracts
section 212 comment b:
Any determination of meaning or ambiguity should only
be made in the light of the relevant evidence of the
situation and relations of the parties, the subject matter
of the transaction, preliminary negotiations and
statements made therein, usages of trade, and the
course of dealing between the parties. But after the
transaction has been shown in all its length and
breadth, the words of an integrated agreement remain
the most important evidence of intention.
In short, although other evidence may aid the process of
interpretation, the words of the contract remain the key to
determining whether the . . . terms are ambiguous.
13

Id. (emphasis omitted); accord United Elec., Radio & Mach. Workers of Am. v.

Iowa Pub. Emp. Rels. Bd., 928 N.W.2d 101, 109–11 (Iowa 2019) (noting if

reasonable minds could differ as to the meaning of a statutory phrase, that phrase

is ambiguous, and explaining interpretive tools for ambiguous statutory terms

include consulting dictionary definitions, legislative history, context and “[t]he

circumstances under which the statute was enacted” (alteration in original) (citation

omitted)).

The disputed terms of the bargaining unit at issue here are italicized:

INCLUDED: All currently enrolled graduate and professional
students with a 25% or more appointment (i.e. teaching at least one
course and/or providing service for at least [ten] hours a week)
employed as: Teaching Assistants (FT19), Research Assistants
(FR19), and Law Research Assistants (FL19) who provide services
to the University in exchange for salary compensation.

EXCLUDED: 1. Research Assistants (FR19 or FL19) whose
appointments are (a) primarily a means of financial aid which do not
require the individuals to provide services to the University, or (b)
which are primarily intended as learning experiences which
contribute to the students’ progress toward their graduate or
professional program of study.

While Petitioners’ brief initially focuses on the purported inadequacies of the

district court’s reasoning, the proper focus is on whether PERB’s interpretation was

“inconsistent with the agency’s prior practice or precedents.” Iowa Code

§ 17A.19(10)(h). If PERB’s interpretation is inconsistent with its precedents, the

district court reviews whether the agency provided “credible reasons sufficient to

indicate a fair and rational basis for the inconsistency.” Id.

PERB reasoned:

In this case, the question presented by Champion’s
clarification petition is whether quarter-time law research assistants
who work for faculty members are included within the bargaining unit.
14

Our first task is to discern whether the unit description
unambiguously includes or excludes this position. If the text of the
description does not resolve the question, then we look to other
probative factors.
The student’s quarter-time or more appointment is an
unambiguous requirement for unit inclusion and is not at issue in this
case. However, the law research assistants’ status is not resolved
by an examination of the remaining bargaining unit description. We
agree with the ALJ’s determination that the unit description does not
unambiguously include or exclude the law research assistants who
work for faculty.
At first blush, a literal reading of the unit description that
includes students who “provide services to the University in
exchange for salary compensation” is seemingly unambiguous.
However, what constitutes “services” that qualify is capable of
differing interpretations as demonstrated by the parties’ dispute. The
students assert they provide qualifying services for the law
professors while the [BOR] disagree and contend the students’
services do not fulfill a business need of the University to constitute
qualified services.
The parties also dispute the purpose of the students’
appointments and whether the unit description excludes Champion,
the Intervenors, and other law research assistants who work for
faculty. Based on the listed exclusions, we are unable to discern
whether the law research assistants are excluded without some
additional inquiry or examination of their meaning and applicability to
certain assignments. Overall, the description of the bargaining unit
does not unambiguously include or exclude law research assistants
who work for faculty and requires our examination of other probative
factors.

Petitioners’ claim law research assistants assigned to faculty

unambiguously provide “services” to the University6 and that the purpose of those

services is irrelevant. This claim ignores the agreement’s express exclusions.

PERB’s interpretation that the unit description does not unambiguously include or

exclude law research assistants who work for faculty is not “clearly against

reason,” untenable, or unreasonable.

6 We also note ambiguity arises in the many dictionary definitions of services,
which the Petitioners themselves note—“the only dictionary definitions of ‘service’
that are possibly applicable to the present context are . . . .”
15

PERB next considered “other factors which might be probative of whether

the position falls within the determined unit, including such matters as whether it

has traditionally been treated as such, [and] whether similar positions or persons

who perform similar duties are included in the unit.” E. Iowa Cmty. Coll., 82

PERB 2110 at *4. “[T]he focus is on those matters probative of whether the

position is and has been in the bargaining unit, not whether it should be or should

have been placed in the bargaining unit.” Id. PERB found,

Other probative factors resolve the ambiguities and support
the [BOR]’s position that the law research assistants who work for
faculty are excluded from the bargaining unit. First, both parties have
treated these law research assistants as students who are excluded
from the bargaining unit. Second, evidence establishes that the
primary purpose of these appointments is to provide the students
with learning opportunities or to provide the appointment as part of
financial aid.
The parties have historically and unequivocally treated the law
research assistants who work for faculty as students excluded from
the bargaining unit. From the beginning of the unit determination in
1994, the parties agreed that law research assistants who worked at
the library, bookstore, or computer lab were unit eligible because
they provided a service that would have required the University to
hire an employee instead. They also agreed the law research
assistants who worked for faculty were excluded based on one or
more of the exceptions. The parties followed this same treatment of
unit eligibility of law research assistants with the official voter list that
was submitted to PERB in 1996. In subsequent communications,
the University maintained this position without objection from UE. In
2001, the University reiterated its understanding and this same
interpretation of the law research assistants in response to a
grievance filed by UE. UE did not pursue the grievance alleging
certain law students did not receive the negotiated salary. The
parties have consistently treated the law research assistants who
work for faculty as unit ineligible.
As the record establishes, another probative factor is that the
primary purpose for these particular law research appointments is to
provide a learning experience for the students or to provide the
appointments as part of a structured financial aid package. The
University addressed these two purposes and the unit exclusion of
the law research assistants in its communication to UE on October 3,
1996. When Champion and the Intervenors were accepted to the
16

University and offered research assistant positions, they were
informed their appointments were “primarily intended as learning
experiences.” Their financial aid packages were structured to enable
the students to pay resident tuition based on their appointments.
Champion and the Intervenors agreed they accepted their
appointments in order to receive the tuition reduction, which
amounted to approximately $18,740 for each in the 2017–18
academic year. The record demonstrates that the primary purpose
of these law research appointments is to provide learning
experiences and financial aid. The parties had agreed that law
research appointments for these two primary purposes are ineligible
for unit inclusion.
We understand Champion and the Intervenors’ arguments as
to the benefit of service they provide to the University and the
similarity of work they perform in comparison to other students in the
unit. However, their arguments are relevant to a unit amendment
proceeding and are misplaced in this unit clarification proceeding
when the evidence overwhelmingly establishes their positions were
historically, specifically, and unequivocally excluded from the unit.

(Emphasis added.)

Petitioners assert “[i]t is indisputable” that the exclusions do not apply to the

law research assistants assigned to law professors. This statement is belied by

the extensive record before us. PERB’s interpretation that law research assistants

who work for faculty are not and have not been in the presently constituted

bargaining unit is not inconsistent with its prior practice or precedents. We thus

affirm the district court’s ruling upholding PERB’s decision.

AFFIRMED.