Unit Determination for Housestaff Employees of the University of California (PERB 0306H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
IN THE MATTER OF:
UNIT 	DETERMINATION 	FOR 	HOUSESTAFF
EMPLOYEES 	OF 	THE UNIVERSITY 	OF
CALIFORNIA 	PURSUANT 	TO 	CHAPTER 744
OF 	THE 	STATUTES 	OF 	1978 	(HIGHER
EDUCATION 	EMPLOYER-EMPLOYEE 	RELATIONS
ACT)
Case No.
SF-RR-1002-H et 	al.
PERB 	D e c i s i o n 	No. 	306-H
May 	5, 	1983
Appearances: 	Franklin Silver, 	Attorney 	(Beeson, 	Taylor, 	Kovach 	&
Silbert) 	for 	University of 	California 	at 	Davis Association of
Interns 	and 	Residents, 	San Francisco 	Interns 	and 	Residents
Association, 	and University of 	California 	at 	Irvine 	Interns 	and
Residents Association; 	Kent Jonas 	and Judith Droz Keyes, 	Attorneys
(Corbett, 	Kane, Berk and Barton) 	and James N. 	Odle, Associate
Counsel 	for 	the 	Regents 	of 	the 	University of 	California.
Before Gluck, 	Chairperson; 	Tovar, 	Jaeger, Morgenstern and Burt,
Members.
DECISION
The 	Higher 	Education 	Employer-Employee 	Relations Act 	(HEERA
or 	Act)1 is 	a comprehensive 	collective 	bargaining 	act 	which
gives 	the 	Public 	Employment 	Relations Board 	(PERB 	or 	Board)
jurisdiction 	over 	the 	employer-employee 	relations 	of 	the
University of California 	(UC or 	university) 	and 	its 	employees,
1The 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq. 	All 	statutory 	references 	hereafter 	are 	to 	the
Government 	Code 	unless 	otherwise 	specified.
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including 	authority 	to 	determine 	the 	appropriate 	units 	for
employees 	of 	UC.2
Pursuant 	to 	section 	51100 	of 	the 	PERB 	regulations,3 the
Physicians 	National 	Housestaff 	Association 	filed 	certification
petitions 	on 	behalf 	of 	the 	UC 	Davis Association 	of 	Interns 	and
Residents 	and 	the 	UC 	Irvine 	Interns 	and 	Residents 	Association
seeking 	separate 	units 	for 	medical 	housestaff4 employees 	at
2Subsection 3563(a) 	states:
This 	chapter 	shall be 	administered 	by 	the
Public Employment Relations Board. 	In
administering 	this 	chapter 	the 	board 	shall
have 	all of the 	following 	rights, 	powers,
duties, 	and responsibilities:
(a) 	To determine 	in disputed cases, 	or
otherwise approve, 	appropriate units.
3pERB 	regulations 	pertaining 	to 	HEERA are 	codified 	at
California Administrative Code, 	title 8, 	section 31001 et 	seq.
Section 51100 	reads 	in part:
(a) 	Subject 	to 	the 	limitations expressed 	in
Section 51140(b), 	a petition for
certification 	pursuant 	to Government 	Code
section 	3575(c) 	by 	an employee 	organization
wishing 	to be 	certified 	by 	the Board 	as 	the
exclusive 	representative 	in 	an 	appropriate
unit 	shall be 	filed 	with 	the 	regional
office, . . .
4The 	petitions 	described 	medical 	housestaff 	employees 	as
"interns, 	residents 	and 	fellows, 	clinical 	and 	research." 	For
the 	purposes 	of 	this 	decision, 	individuals 	described 	as 	such
are 	referred 	to 	as 	"housestaff."
2
• 	•
• 	• 	• 	• 	• 	• 	• 	•
2

the 	UC 	Davis 	and 	UC 	Irvine Medical Centers 	and 	affiliated
facilities. 	Thereafter, 	the Board 	issued Unit 	Determination
for 	Employees 	of 	the 	Regents 	of 	the 	University 	of 	California
(4/20/82) 	PERB Order No. 	Ad-114a-H, 	directing 	that hearings be
conducted 	to determine 	the 	appropriate 	unit 	placement 	of
residents 	and 	interns, 	and 	to 	determine 	exclusionary 	issues,
including questions of managerial, 	supervisory, 	confidential or
casual 	status.5 The 	order 	further 	indicated 	that 	at 	the
conclusion 	of 	the 	unit placement 	and 	exclusionary 	hearings, 	the
chief 	administrative 	law 	judge 	should 	submit 	the 	record,
including parties' briefs, 	directly 	to 	the 	Board 	itself 	for
final disposition.
At 	the 	unit 	determination hearing, 	the 	parties 	agreed 	upon
and 	read 	into 	the 	record 	a 	stipulation 	creating 	a 	systemwide
unit of housestaff 	employees, 	the 	details 	of which 	are
discussed 	infra. 	The 	stipulation 	was 	entered 	without 	prejudice
to 	the 	position of any party 	in unfair 	practice 	Case No.
SF-CE-1-H which 	was 	then 	pending 	before 	PERB.6 The
stipulation 	was 	forwarded 	to 	the 	Board 	for 	final 	acceptance 	or
rejection.
5The 	order 	explicitly 	directed 	that 	no 	evidence 	should 	be
taken 	on 	the 	employee-student 	status 	of 	residents 	and 	interns.
6The 	case 	has 	since 	been 	decided 	by 	the Board.
(Physicians 	National 	Housestaff 	Association v. 	Regents 	of 	the
University or 	California 	(2/14/83) 	PERB Decision No. 	283-H.)
The 	parties' 	stipulation 	was 	conditioned 	upon 	a 	finding 	that
the 	individuals 	and 	classifications 	petitioned 	for 	were
W
	3

The Board 	will 	approve 	a 	stipulation 	in 	a 	unit 	determination
matter 	when 	the 	stipulation 	does 	not 	contravene 	the Act 	or
established 	Board 	policies. 	Centinela Valley 	Union 	High 	School
District 	(8/7/78) 	PERB Decision No. 	62.
The 	Legislature 	mandated 	that 	the Board 	consider 	various
criteria 	in determining 	an 	appropriate 	unit 	of employees 	for
purposes of 	meeting 	and 	conferring 	under 	provisions of 	the
HEERA. 	These 	criteria are 	set 	forth 	in 	section 	3579 	of HEERA
which, 	in pertinent part, provides:
(a) 	In each 	case 	where 	the 	appropriateness
of a unit 	is an 	issue, 	in determining 	an
appropriate 	unit, 	the 	board 	shall 	take 	into
consideration 	all of 	the 	following 	criteria:
(1) 	The 	internal and occupational
community 	of 	interest 	among 	the
employees, 	including, 	but not limited
to, 	the 	extent 	to which 	they perform
functionally 	related 	services 	or 	work
toward 	established 	common goals, 	the
history 	of 	employee 	representation 	with
the employer, 	the extent 	to which 	such
employees 	belong 	to 	the 	same 	employee
organization, 	the extent 	to which 	the
employees 	have 	common 	skills, 	working
conditions, 	job duties, or similar
"finally 	found 	by 	the 	Board 	or 	by 	a competent 	jurisdiction 	to
be 	employees of 	the 	university 	within 	the meaning 	of 	the 	Higher
Education 	Employer-Employee 	Relations 	Act." 	[Emphasis 	added.]
In Physicians National Housestaff Association, 	the Board did
find 	that 	housestaff 	who 	are 	paid 	by 	the 	university while
participating 	in a 	residency program at a clinic, 	institute 	or
hospital owned 	or 	operated 	by 	the 	university 	are 	"employees" 	as
defined 	by 	subsection 	3562(f) 	of HEERA. 	Having made 	this
finding, 	the Board 	has met 	the 	condition of 	the 	stipulation.
It 	is 	therefore 	free 	to 	decide 	whether 	the 	stipulation 	creates
an 	appropriate 	unit 	for 	housestaff 	employees.
44

educational or 	training 	requirements,
and 	the 	extent 	to 	which 	the 	employees
have 	common 	supervision.
(2) 	The 	effect 	that 	the 	projected 	unit
will 	have 	on 	the meet 	and 	confer
relationships, 	emphasizing 	the
availability 	and 	authority 	of 	employer
representatives 	to 	deal effectively
with 	employee 	organizations
representing 	the 	unit, 	and 	taking 	into
account 	such 	factors 	as 	work 	location,
the 	numerical size of 	the 	unit, 	the
relationship of 	the 	unit 	to
organizational patterns 	of 	the 	higher
education employer, 	and 	the effect 	on
the 	existing 	classification 	structure
or 	existing 	classification 	schematic 	of
dividing 	a 	single class 	or 	single
classification 	schematic 	among 	two 	or
more units.
(3) 	The 	effect of 	the proposed 	unit on
efficient operations 	of 	the 	employer
and 	the 	compatibility 	of 	the 	unit 	with
the 	responsibility 	of 	the 	higher
education 	employer 	and 	its 	employees 	to
serve 	students 	and 	the public.
(4) 	The 	number 	of employees 	and
classifications 	in a proposed 	unit, 	and
its 	effect on 	the 	operations of 	the
employer, 	on 	the objectives of
providing 	the 	employees 	the 	right 	to
effective 	representation, 	and on 	the
meet 	and 	confer 	relationship.
(5) 	The 	impact on 	the meet 	and 	confer
relationship 	created 	by 	fragmentation
of 	employee 	groups 	or 	any proliferation
of 	units 	among 	the 	employees 	of 	the
employer.
(b) 	There 	shall be 	a presumption 	that
professional 	employees 	and 	nonprofessional
employees 	shall 	not 	be 	included 	in 	the 	same
representation unit. 	However, 	the
presumption 	shall be 	rebuttable, 	depending
upon 	what 	the 	evidence 	pertinent 	to 	the
criteria 	set 	forth 	in 	subdivision 	(a)
establishes.
5
5

(c) 	There 	shall be a presumption 	that all
employees 	within an 	occupational group 	or
groups 	shall be 	included 	within 	a 	single
representation unit. 	However, 	the
presumption shall be 	rebutted 	if 	there 	is 	a
preponderance 	of evidence 	that 	a 	single
representation 	unit 	is 	inconsistent 	with 	the
criteria set 	forth 	in subdivision 	(a) 	or 	the
purposes of 	this 	chapter.
In 	structuring 	units of UC employees, 	the Board 	has 	sought
to 	place 	employees 	with 	an 	internal occupational community of
interest 	in 	an 	appropriate 	unit. 	The Board 	has 	considered 	the
effect 	that 	various unit 	configurations 	would 	have 	on 	the 	meet
and 	confer 	relationships 	in 	terms of both 	the 	employer's
interest 	in 	efficient 	operation of 	the 	educational 	system and
in 	terms of 	the employees' 	interest 	in effective
representation. 	As 	stressed 	in 	the 	State 	of California
employee 	unit 	determination 	decision 	and 	reiterated 	in 	the
California 	State 	University 	and 	Colleges 	unit 	determination
decisions:7
. 	. 	. 	unit determination criteria cannot be
reviewed 	in 	isolation 	from one 	another;
indeed, 	there 	is 	substantial 	interplay among
the various criteria. 	Therefore, 	all of 	the
factors 	involved 	in 	a given 	situation must
be 	balanced 	against 	one 	another. 	The 	result
of any 	such 	balancing 	process 	is 	that 	in 	a
7See 	Unit 	Determination 	for 	the 	State 	of 	California
Pursuant 	to 	Chapter 	1159 	of 	the 	Statutes 	of 	1977 	(State
Employer-Employee 	Relations Act) 	(11/7/79) 	PERB Decision
No. 	110-S; 	Unit Determination 	for 	Employees of 	the California
State 	University 	and 	Colleges 	Pursuant 	to 	Chapter 	744 	of 	the
Statutes of 	1978 	(Higher 	Education 	Employer-Employee 	Relations
Act) 	(9/22/81) 	PERB Decision No. 	173-H and 	(11/17/81) 	PERB
Decision No. 	176-H.
6
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6

particular 	factual 	setting 	some 	criteria 	are
emphasized 	over 	others 	while 	in 	a 	different
setting 	the 	weight 	given 	the 	same 	criteria
may 	be 	altered.
By 	the 	terms 	of 	the 	stipulation 	discussed, 	supra, 	the
housestaff 	unit 	is 	defined 	as 	follows:
(1) 	The 	unit 	includes 	the 	job
classifications 	of 	dental 	intern
(2705), 	veterinary medicine 	intern
(2714), 	dental 	resident 	(2727),
pharmacy 	resident 	(2728), 	veterinary
medicine resident 	(2730), 	post-M.D. 	I
(2708), post-M.D. II, III, 	IV (2724)
and 	chief post-M.D. 	officer 	(2725).
These 	positions 	are 	collectively
referred 	to 	as 	residents 	in 	the 	balance
of 	this 	stipulation. 	All 	other
classifications 	at 	the 	university 	are
explicitly 	excluded 	from 	the 	unit.
(2) 	The 	unit 	includes 	only 	those 	persons 	on
the 	payroll 	of 	the 	university 	of
California 	and 	working 	at 	a 	hospital
owned 	and 	operated 	by 	the 	university,
provided 	that 	residents 	on 	the 	payroll
of 	the 	university working 	at 	the
Veterans 	Administration 	Hospital
located 	in San Francisco, 	California
shall 	not 	be 	excluded 	from 	the 	unit
under 	the 	provisions 	of 	this
paragraph. 	Further, 	this 	stipulation
shall 	be 	without 	prejudice 	to 	the
position 	of 	any 	party 	as 	to 	whether
residents 	at 	the 	San 	Francisco 	General
Hospital 	or 	the 	Los 	Angeles 	County
Harbor/UCLA 	Medical 	Center 	should 	be
included 	in 	the 	unit 	if 	and 	when 	they
are 	put 	on 	the 	payroll 	of 	the
university.
(3) 	All managerial, 	supervisory,
confidential 	and 	casual 	employees
within 	the 	meaning 	of 	HEERA 	are
excluded 	from 	the 	unit. 	The 	parties
understand 	that 	this 	stipulation 	is 	not
determinative 	of 	the 	managerial,
supervisory, 	confidential or 	casual
status of 	any 	person 	in 	a
classification 	listed 	in 	paragraph 	(1)
above.
77

In 	support of 	the proposed 	unit, 	the 	parties 	stipulated 	to
several 	factual matters. 	Uncontested 	stipulations 	of 	fact
submitted 	by 	the 	parties 	are 	accepted 	as 	conclusive. 	The
factual stipulations 	are 	as 	follows:
(1) 	Incumbents 	in 	each of 	the
classifications 	contained 	in 	the 	unit
are 	receiving 	postgraduate 	training 	in
a 	health 	care 	field 	through 	the
university 	and 	its 	faculty. 	Such
training 	occurs 	after 	these 	individuals
have 	attained 	the 	professional 	degree
which 	is 	one 	of 	the 	bases 	for 	licensure
to practice 	their 	profession.
Individuals 	in 	these 	classifications
care 	for 	patients 	at 	hospitals 	owned
and 	operated 	by 	the 	university 	and
participate 	in 	the 	teaching 	of 	students
in 	university 	schools 	which 	educate
health 	care 	professionals.
(2) 	Each 	of 	the 	classifications 	contained
in 	the 	unit 	has 	a 	single 	systemwide 	pay
rate 	established 	annually 	by 	the
university 	systemwide 	administration.
(3) 	These 	individuals 	are 	professional
employees 	within 	the 	meaning 	of 	HEERA,
in 	that 	the 	incumbents 	in each
classification 	have 	received
professional degrees 	prior 	to 	their
entry 	into 	the 	classification. 	In 	the
post-M.D. 	classifications, 	incumbents
have 	received M.D. 	degrees. 	In 	the
pharmacy 	classification, 	incumbents
have 	received Pharm. 	D. 	degrees. 	In
the 	veterinary 	medicine 	classification,
incumbents 	have 	received 	D.M.V.
degrees. 	In 	the 	dental classifications,
incumbents 	have 	received 	either 	a
D.D.S. 	or 	a D.M.D. 	degree.
(4) 	The 	university operates 	five medical
schools 	through 	which 	the 	post-M.D.s
and 	chief post-M.D. 	officers
participate 	in 	residency 	programs. 	The
schools 	are 	part 	of 	the 	university 	of
California at Los Angeles 	(UCLA), 	the
88

university 	of 	California 	at 	San 	Diego
(UCSD), 	the 	university of California at
San Francisco 	(UCSF), 	the 	university of
California at 	Irvine 	(UCI), 	and 	the
university 	of 	California 	at 	Davis
(UCD). 	Each of 	these 	campuses 	has
affiliated 	with 	a hospital8 	which 	is
owned 	and 	operated 	by 	the 	university
and 	used 	as 	a 	site 	for 	residency
programs. 	In addition, 	UCSF places
medical 	residents 	on 	its 	payroll 	at 	the
San 	Francisco Veterans 	Administration
Hospital 	through 	a 	program 	integrated
with 	the 	residency 	program on 	its 	own
campus 	and 	in 	which 	medical 	residents
are 	trained 	by 	members 	of 	the 	UCSF
faculty.
(5) 	The 	university operates 	one 	pharmacy
school 	located 	at 	the 	UCSF campus.
Pharmacy 	residents 	associated 	with 	that
school 	are 	trained 	in 	university-owned
and 	operated 	hospitals 	on 	the 	UCSF
campus 	and 	in 	those 	owned 	and operated
by 	the 	university 	and 	affiliated 	with
the 	UCI 	and 	UCSD campuses.
(6) 	The 	university maintains 	one 	veterinary
school 	located 	on 	its 	UC 	Davis 	campus.
Veterinary 	medicine 	interns 	and
residents 	in 	the 	residency 	program 	at
that 	school 	are 	trained 	in 	the
veterinary 	hospital 	located 	on 	the
Davis 	campus 	and 	in 	the
university-owned 	and 	operated 	hospital
associated 	with 	the 	Davis 	campus.
(7) 	The 	university operates 	two 	dental
schools, 	one 	each 	at 	its 	UCLA and 	UCSF
campuses. 	Dental 	residents 	and 	interns
associated 	with 	these 	schools
participate 	in 	residency 	programs 	in
the 	university-owned 	and 	operated
hospitals 	located 	on 	each 	of 	the
campuses.
8UC Davis 	also 	has 	a 	veterinary 	hospital.
99

(8) 	As of October 	1981, 	the classifications
to 	be 	included 	in 	the 	unit 	had 	the
following 	number 	of 	incumbents 	on 	the
university payroll: 	dental 	intern
(2705) 	had four 	incumbents; post-M.D. 	I
(2708) 	had 415 	incumbents; 	veterinary
medicine 	intern 	(2714) 	had 	13
incumbents; post-M.D. II, III, IV
(2724) 	had 	1,555 	incumbents; 	chief
post-M.D. 	officer 	(2725) 	had 42
incumbents; 	dental 	resident 	(2727) 	had
18 	incumbents; 	pharmacy 	resident 	(2728)
had 	20 	incumbents; 	and 	veterinary
medicine 	resident 	(2730) 	had 	50
incumbents.
(9) 	Individuals 	in 	each 	of 	the
classifications 	included 	in 	the 	unit
receive 	no 	academic 	degree 	at 	the 	end
of 	their 	training 	program but, 	instead,
receive 	certificates 	indicating 	the
period 	of 	their 	residency 	program 	and
their 	completion 	of 	residency.
(10) 	Individuals 	in 	the classifications
included 	in 	the 	unit 	are 	uniquely
scheduled 	to 	rotate 	among 	various
services 	located 	at 	and 	included 	in
university-owned 	and 	operated 	hospitals
(11) 	No deduction 	for 	social 	security 	is
made 	from 	checks 	given 	to 	these
individuals 	for 	their 	services 	nor 	are
these 	individuals 	eligible 	for
inclusion 	in 	the 	UC 	retirement 	system.
Further, 	deductions 	are 	not made 	for
unemployment 	insurance 	on 	their 	behalf.
(12) 	Individuals 	in 	the 	classifications
included 	in 	the 	unit 	receive 	no
additional 	compensation 	beyond 	the
salary 	described 	above 	for 	periods 	when
they 	are 	on 	call 	to 	university-owned
and 	operated 	hospitals.
(13) 	Unlike 	any 	other 	health 	care
professionals 	paid 	by 	the 	university 	at
its 	owned 	and 	operated 	hospitals,
,
10
.

individuals 	in 	these 	classifications
are 	selected 	by 	the 	faculty of 	the
university 	on 	the 	basis of 	academic
record 	and 	on 	the 	basis 	of 	their
ability 	to 	profit professionally 	from
the 	training 	involved 	in 	their
residency programs.
In 	light of 	the parties' factual stipulations, 	the 	record
is 	adequate 	to 	support 	the 	conclusion 	that a 	systemwide 	unit of
housestaff 	employees 	is 	appropriate. 	Employees 	placed 	within
this 	unit 	are 	subject 	to 	specially 	designed hiring 	criteria 	and
training 	requirements. 	Incumbents 	in each 	of 	the 	proposed
classifications must, 	as a condition of 	their 	employment,
possess 	an 	advanced professional degree. 	Thus, 	they 	share
skills, 	education 	and 	qualifications which 	are 	unique 	among
university health-care 	employees. 	They 	are 	bound 	by 	the 	common
goal of providing 	health 	services 	in 	university 	hospitals 	and,
in 	so 	doing, 	are 	involved 	in a 	specialized manner 	with 	the
university's 	basic public 	service 	mission. 	They 	are 	employed
in 	university-owned 	and 	operated 	hospitals 	and 	therefore 	have
similar 	working 	conditions, 	job duties, 	supervision and
training. 	Moreover, 	they 	are 	subject 	to 	the 	same 	systemwide
classification 	scheme, 	wage 	scales 	and 	compensation plan.
Subsection 	3579 (c) 	of HEERA creates 	a presumption 	that 	all
employees 	within 	an 	occupational group or 	groups 	should 	be
included 	in a 	single 	representation unit 	unless 	there 	is 	a
preponderance 	of 	evidence 	that 	such 	a 	unit would 	be
inconsistent 	with 	the Act. 	The 	record 	reveals 	that 	employees
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in 	the 	systemwide 	housestaff 	unit 	share 	a 	significant
occupational 	community 	of 	interest. 	The 	grouping 	of 	employees
on 	the 	payroll 	of 	the 	university 	and 	working 	at 	the 	hospitals
indicated 	in 	the 	stipulation 	will 	both 	facilitate 	the
collective 	bargaining 	process 	and 	promote 	the 	efficient
operations 	of 	the 	university. 	Additionally, 	the 	systemwide
housestaff 	unit 	will 	avoid 	fragmentation 	of 	employee 	groups 	and
unnecessary 	proliferation 	of 	units.
Based on 	the 	foregoing 	facts 	and discussion, 	we 	conclude
that 	a 	systemwide 	unit 	of 	housestaff 	employees 	who 	are 	on 	the
UC payroll 	and 	employed 	at 	hospitals 	indicated 	in 	the
stipulation 	is 	appropriate. 	We 	therefore 	adopt 	the 	stipulation
of 	the 	parties.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public Employment 	Relations Board ORDERS 	that:
(1) 	In 	accordance 	with 	the 	stipulation of 	the 	parties, 	a
systemwide 	unit 	of 	housestaff 	employees 	is 	appropriate
for 	the 	purpose 	of meeting 	and 	conferring 	in 	good
faith 	pursuant 	to 	Government 	Code 	section 	3560 	et 	seq.
(2) 	All managerial, 	supervisory, 	confidential 	and casual
employees 	of 	the 	university 	shall 	be 	excluded 	from 	the
unit. 	The 	status of 	casual 	employees 	shall be
determined 	during 	the 	exclusionary 	phase 	of 	these
proceedings.
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(3) 	Pending 	final 	determination 	by 	a 	court of 	competent
jurisdiction 	that 	housestaff 	employees 	are 	employees
of 	the 	university 	within 	the 	meaning 	of 	the 	Higher
Education Employer-Employee 	Relations Act, 	no
exclusionary 	proceeding 	or 	representation 	election 	is
ordered 	in 	the 	unit.
(4) 	Any 	technical errors 	in 	this 	ORDER shall be 	presented
to 	the 	director 	of 	representation 	who 	shall 	take
appropriate 	action 	thereon 	in 	accordance 	with 	this
Decision.
By 	the 	BOARD.
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