Regents of the University of California (Physicians National Housestaff Association) (PERB 0283H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PHYSICIANS 	NATIONAL 	HOUSESTAFF
ASSOCIATION,
Charging 	Party,
v.
REGENTS 	OF 	THE 	UNIVERSITY 	OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-1-H
PERB Decision No. 	283-H
February 14, 	1983
UNION 	OF AMERICAN 	PHYSICIANS 	AND
DENTISTS,
Joined 	Party.
Appearances; 	Franklin Silver, 	Attorney 	(Carroll, 	Burdick 	&
McDonough) 	for 	Physicians 	National Housestaff Association;
Claudia 	Cate, 	Attorney 	for 	the 	Regents 	of 	the University of
California; 	Carl W. 	Vogt, 	Attorney 	(Fulbright & Jaworski) 	for
the 	Association 	of 	American Medical Colleges.
Before Gluck, 	Chairperson; 	Tovar 	and Jaeger, Members.
DECISION
TOVAR, Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB or 	Board) 	on exceptions 	to a hearing
officer's 	proposed 	decision 	filed 	by 	the 	charging 	party,
Physicians 	National 	Housestaff 	Association 	(PNHA or
Association), 	and by respondent, 	the Regents of the University
of California 	(U.C. 	or University).1 On July 20, 	1979, 	the
1The 	Association 	of 	American 	Medical Colleges 	also 	filed
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Association 	filed 	an 	unfair 	practice 	charge 	against 	the
University 	alleging 	it 	had 	violated 	Government 	Code 	subsections
3571(a) 	and 	(b) 	and 	section 	3585 of 	the Higher 	Education
Employer-Employee Relations Act 	(HEERA or 	A c t ) , 2 by ceasing
an 	informational 	brief 	as 	amicus Curiae 	against 	PNHA's
exceptions 	to 	the 	hearing 	officer's 	proposed 	decision.
2HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq. 	All 	statutory 	references 	are 	to 	the Government Code
unless 	otherwise 	indicated.
Section 	3571 	states 	in pertinent part:
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten 	to
discriminate against employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
Section 	3585 	states:
In 	the 	absence 	of an 	arrangement pursuant 	to
Section 3583, 	an employer 	shall, 	upon
written 	authorization 	by 	the 	employee
involved, 	deduct 	and 	remit 	to 	the 	exclusive
representative, 	or 	in the absence of an
exclusive 	representative 	to 	the 	employee
organization of 	the 	employee's choice, 	the
standard 	initiation fee, 	periodic dues, 	and
general assessments 	of 	such 	organization,
until 	such 	time 	as 	an exclusive
representative 	has 	been 	selected 	for 	the
employee's unit. 	Thereafter, 	deductions
shall 	be made 	only 	for 	the 	exclusive
representative.
N
• 	• 	• 	• 	• 	•
2

to make 	payroll 	dues 	deductions 	on 	behalf 	of 	PNHA 	for 	the
housestaff3 in 	the 	University's 	post-graduate 	medical
training 	programs.
The 	hearing 	in 	this matter 	commenced on October 	2, 	1979,
and concluded on October 	25, 	1979, 	after 	10 	nonconsecutive 	days
of 	hearing.
The 	Union of American Physicians 	and 	Dentists 	(UAPD) 	filed
an 	application 	for 	joinder 	as 	a 	party 	to 	this 	unfair 	practice
proceeding 	under 	title 	8, 	California Administrative 	Code,
section 	32665. 	Subject 	to certain 	limitations 	on 	its
participation 	in 	the hearing, 	UAPD's 	request 	for 	joinder 	was
granted.
In 	addition, 	permission was granted 	to 	the California
Medical 	Association 	to 	file 	an 	informational 	brief 	in 	support
of PNHA's position pursuant 	to 	title 	8, 	California
Administrative Code, 	section 32210. 	The Association of
American Medical Colleges 	similarly 	was 	granted 	permission 	to
file 	an 	informational 	brief 	in 	support 	of 	the 	University's
position.
3 AS 	used 	in 	this decision and 	as 	agreed 	to by 	the parties,
the 	terms 	"house officers" 	or 	"housestaff" 	include 	residents
who 	have 	a Medical Doctor 	degree 	and 	are 	training 	for 	a medical
specialty. 	Also 	included 	are 	"clinical 	fellows" 	who are
training 	for 	a medical subspecialty. 	However, 	the status of
certain clinical 	fellows 	who are 	selected 	by, 	and who work
independently with, 	an 	individual faculty member 	are not, 	by
agreement of 	the parties, 	at 	issue here.
W	
3

In his proposed 	decision, 	the 	hearing 	officer 	dismissed 	the
charge 	against 	the 	University, 	finding 	that 	housestaff 	are
student 	employees 	whose 	services 	are 	subordinate 	to 	their
educational objectives 	and 	thus 	excluded 	from 	coverage 	under
HEERA. 	Consequently, 	the Association 	is 	not entitled 	to
payroll dues 	deductions.
The 	Board 	has 	carefully 	reviewed 	the 	record 	in 	light 	of 	the
parties' 	exceptions 	and 	adopts 	the 	findings 	of 	fact 	set 	forth
by 	the 	hearing 	officer 	in 	the 	proposed 	decision 	as 	being 	free
of prejudicial error. 	However, 	the Board 	reverses 	the hearing
officer's 	conclusions 	of 	law as 	discussed 	below.
Issues
The 	parties 	stipulated 	to 	the 	following 	issues:
1. 	Are 	house 	officers, 	who are 	paid by 	the University
while 	participating 	in 	a 	residency 	program at 	a clinic,
institute 	or 	hospital owned 	or 	operated 	by 	the 	University,
"employees" 	as defined 	by 	subsection 	3562(f) 	of 	HEERA?
2. 	If 	so, 	did the University violate 	subsections 	3571(a),
(b), 	and/or 	section 	3585 of 	the Act 	by 	refusing 	to make
authorized 	payroll 	deductions 	on 	behalf 	of 	PNHA on 	or 	about
August 1, 	1979; 	and, 	if a violation 	is 	found, 	what 	is 	the
appropriate 	remedy?
Discussion
The 	issue 	of 	whether 	housestaff 	are 	"employees" 	for
purposes 	of 	the Act 	is 	one 	of 	first 	impression 	for 	the Board.
44

Subsection 	3562(f) 	of HEERA, 	which defines 	the 	term 	"employee,"
provides 	that:
"Employee" 	or 	"higher 	education employee"
means 	any 	employee 	of 	the 	Regents 	of 	the
University of California 	. 	. 	. 	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.)
It 	is 	undisputed 	that 	the 	services 	provided 	by 	housestaff
are 	related 	to 	their 	educational objectives. 	Therefore, 	a
finding 	that 	housestaff 	are 	"employees" must 	be 	based 	on 	the
second of 	the 	tests 	set 	forth 	in subsection 	3562(f).
Housestaff will 	be 	found 	to 	be 	"employees" 	if 	it 	is 	determined
that: 	first, 	the 	educational objectives underlying 	their
duties 	are 	subordinate 	to 	the 	services 	they 	perform; 	and
second, 	coverage 	furthers 	the purposes 	of 	the Act.
This 	two-pronged 	test must 	be 	applied 	to 	the 	facts 	in 	this
case. 	As 	the hearing officer 	outlined, 	and 	the 	record
indicates, 	housestaff 	generally 	spend 	more 	than 	three-fourths
of 	their 	time 	in clinical 	activities, 	often 	reacting 	to
life-threatening 	situations 	with 	little 	or 	no 	supervision.4
4Dr. 	David Daehler, 	assistant professor, 	the Department
of 	Family Practice 	at U.C. 	Davis 	located 	at 	the Medical Center
in 	Sacramento, 	testified 	that 	the cases 	of a 	first year 	house
officer 	are 	jointly 	reviewed 	initially 	with 	the 	attending
55

On 	the 	average, 	the majority of 	rotations demand 	an 80 	hour
work week. 	However, 	housestaff may work periods of 	90 	to 	100
hours 	a 	week 	during 	the 	approximately 	80 	percent 	of 	the 	time
they are 	engaged 	in clinical activities 	(for 	example, 	in
orthopedic 	surgery, 	in 	the medicine 	wards 	and 	the medical
intensive care 	units).5 Housestaff, 	therefore, 	are providing
a 	service 	that 	is 	of primary 	benefit 	to 	the patients 	and 	the
hospital, 	not 	just 	themselves.6
physician 	(attending) 	and 	house 	officer. 	The 	second 	and 	third
year 	house 	officers 	are 	licensed 	by 	the 	State 	of 	California 	to
practice medicine 	and 	need 	little or 	no 	supervision. 	When
attendings 	are 	consulted, 	it 	is at 	the discretion of 	the
individual house officer. 	Dr. Michael Drennan, 	a third year
house 	officer 	in 	family 	practice 	testified 	he 	consults 	his
attending 	at 	his 	discretion 	and 	that 	during 	the 	last 	two 	and 	a
half 	years, 	such 	consultation 	has 	occurred 	less 	than 	ten
percent of 	the 	time.
Moreover, 	the 	record 	demonstrates 	that 	the 	educational
benefits 	housestaff 	derive 	from 	their 	activities 	are 	incidental
and 	therefore 	subordinate 	to 	the primary 	health 	care 	services
they 	provide 	the 	patients. 	Housestaff 	perform 	a 	variety of
5Although 	housestaff may 	work 	up 	to 	90 	to 	100 	hours 	a
week while 	engaged 	in clinical 	activities, 	40 	to 	50-hour 	work
weeks 	are 	not 	uncommon 	when 	they 	are 	engaged 	primarily 	in
research 	activities.
6Housestaff 	provide 	direct patient 	care 	and 	in 	this 	way
free 	attending 	physicians 	to 	take 	responsibility 	for 	more
patients. 	Hospitals 	and 	attending 	physicians 	are 	able 	to
maintain 	constant 	stand-by 	physician 	services 	for 	all 	patients
at 	a lower 	cost 	than might otherwise 	be possible. 	In 	fact, 	an
attending 	physician 	testified 	that 	he 	prefers 	to work 	in a
hospital which 	is 	affiliated 	with 	a 	teaching 	institution
because 	of 	the 	availability 	of 	around-the-clock 	delivery 	of
care provided 	in 	large 	part 	by housestaff.
66

procedures 	which 	medical 	students 	are 	not 	allowed 	to perform.
Those 	procedures 	may 	include 	the 	performance 	of 	bone 	marrow
biopsies, 	intubation, 	running of respirators, 	drawing blood,
cardiopulmonary 	resuscitation 	(including 	endotracheal
intubation), 	physical examinations, 	and the administration of
dangerous drugs.
Housestaff 	provide 	professional 	guidance 	to more 	junior
colleagues 	and 	may 	lead 	work 	rounds 	with 	the 	interns, 	medical
students, 	and others 	in order 	to examine patients, 	discuss 	the
treatment plan 	for 	the 	day, 	and write 	orders 	to be 	carried 	out
that 	day. 	In performing 	any 	procedures 	requiring 	the
assistance 	of 	nurses 	and 	technicians, 	housestaff 	direct 	those
employees 	in 	the performance of 	their 	duties. 	Some 	of 	the
patients may 	be 	admitted, 	treated, 	and 	discharged 	without 	ever
having 	been 	personally 	seen 	by 	an 	attending 	physician.7
Graduate 	medical 	training 	programs 	are 	governed 	by 	the
"Essentials 	of 	Accredited 	Residencies" 	contained 	in 	the
Directory 	of Accredited 	Residencies 	1975-76 	(The 	Essentials).
The 	Essentials 	state 	that 	the 	qualifications 	of 	the 	resident
7Dr. 	Edward 	Kelley, 	orthopedic 	surgeon 	and 	an 	attending
physician, 	testified 	that 	the 	relationship 	between 	attendings
and 	housestaff, 	particularly with 	second 	and 	third 	year 	house
officers, 	is one of mutual 	respect 	between professional
colleagues. 	He 	recounted 	an 	incident where 	a house 	officer
overruled 	a 	procedure 	he 	had 	ordered 	while 	an 	attending
physician because 	it was 	not 	in 	the 	best 	interest 	of 	the
patient. 	Dr. 	Kelley was 	grateful 	to 	the 	house 	officer 	for 	his
input 	because 	his 	suggested 	treatment 	had 	a positive 	bearing 	on
the 	patient's 	treatment.
7

staff 	should 	leave 	no doubt 	as 	to 	their 	competence 	to 	accept
the 	assignment, 	since 	the primary obligation of 	the 	hospital
must 	be 	for 	the patients' welfare. 	That 	the clinical
responsibilities 	of housestaff 	are 	paramount 	is 	also 	evidenced
by 	the 	fact 	that 	staff 	are 	free 	to miss 	grand 	rounds,8 a
significant 	didactic9 function, 	whenever 	they 	deem 	their
clinical 	responsibilities 	to 	be 	more 	important.10
Respondent 	argues 	that 	we must 	focus 	on 	the 	educational
purpose 	of 	the 	University-hospital affiliation. 	While 	The
Essentials 	do 	state 	that 	the primary 	purpose 	of 	the 	residency
program 	is 	educational, 	we 	do not consider 	this 	statement as
relevant 	to 	the Board's 	inquiry. 	The purpose of 	the 	The
Essentials 	is 	to guide hospitals 	in 	the 	development 	and
maintenance 	of 	effective 	residency programs. 	It 	is 	not
8Grand 	rounds 	are 	available 	to 	housestaff, 	and 	are
attended 	by 	faculty 	and 	community physicians 	as 	well.
11 1
9The 	parties 	stipulated 	that 	the 	term 	"didactive
activities" 	means 	formal 	teaching 	sessions, 	where 	there's a
recognized 	"teacher" 	and 	a 	recognized 	"student".
10Dr. 	Joel Addelson, 	a pediatric resident 	at 	U.C.
San Francisco, 	indicated 	that 	grand 	round 	conferences 	are 	held
primarily 	for 	the 	benefit 	of 	attending 	physicians. 	Attendance
at grand 	rounds 	by housestaff 	is 	not mandatory, 	and 	is 	entirely
contingent 	on whether 	housestaff 	have 	time 	to 	take 	away 	from
their 	immediate 	patient care 	duties 	to be present 	at 	the
conference. 	Dr. 	Addelson 	testified he has 	had 	to miss,
depending on 	the 	service, 	from 40 	to 	75 percent of 	the
conferences 	offered 	him 	because 	of 	patient 	care
responsibilities. 	The 	record also 	indicates 	that 	house
officers 	have 	had 	responsibility 	for 	leading 	the 	presentation
at 	grand 	round 	conferences 	when 	the 	house 	officer 	has 	a 	certain
expertise 	which 	other 	physicians 	may 	not 	possess.
8

concerned 	with 	the 	statutory 	question 	of 	whether 	housestaff 	are
"employees" within 	the meaning of HEERA. 	Hence, 	the
characterization 	of 	residency 	programs 	as 	primarily educational
in The 	Essentials 	is 	of 	little probative 	value 	in assisting 	the
Board 	in making 	its 	determination.
Moreover, 	it 	is 	a 	characteristic of 	any 	entry level
position 	that 	considerable 	on-the-job 	training 	will 	be
provided. 	Indeed, 	the 	educational process does 	not 	terminate
upon 	the 	acquisition of 	an 	M.D. 	or 	other 	advanced 	degree.11
As Dr. 	David Daehler, 	assistant professor, 	Department of 	Family
Practice at 	the Medical Center 	in Sacramento, 	indicated, 	it 	is
a 	continuous 	and 	life-long 	process 	because 	the 	field 	is
continually 	changing.
In addition, 	housestaff 	evidence 	employment characteristics
which 	indicate 	the 	emphasis 	which 	the 	University 	itself 	places
on 	their 	employment 	status.12 Housestaff 	do 	not 	complete
registration 	forms 	processed 	by 	the 	registrar's 	office.
11Business 	and 	Professions 	Code 	section 	2101.6 	sets 	out
the 	continuing 	education 	requirements 	for 	physicians.
Attendance 	at 	grand 	round 	conferences 	may 	be 	used 	to meet 	such
requirements.
1 2 Of course, 	there 	are 	factors which 	indicate 	some
student 	characteristics, 	including 	the 	fact 	that 	the 	University
does 	not make 	a deduction 	for 	state 	unemployment 	insurance
benefits 	for 	housestaff, 	they are 	not 	included within 	the
University 	retirement 	system, 	nor 	are 	social 	security payments
made on 	their 	behalf. 	However, 	these are 	not 	sufficient 	in
scope 	or 	breadth 	to 	counter 	the paramount 	role 	of 	housestaff's
clinical 	activities 	and 	their 	indicia 	of 	employment.
9

Housestaff 	do 	fill 	out 	a 	form 	entitled 	either 	"Change 	in
Employment Status" 	or 	"Personnel Action Form." 	Housestaff 	sign
these 	employment 	forms 	in 	the 	box 	designated 	for 	"employee
signature."13 Housestaff 	also 	receive 	compensation 	in 	the
form of 	monthly payroll 	checks, 	as a quid pro quo 	for 	the
services 	they 	provide. 	They 	receive 	step 	increases 	plus
cost-of-living 	increases 	while 	on 	the 	payroll. 	Workers
compensation 	insurance 	is 	paid 	by 	the 	University 	for 	housestaff
who 	receive payment 	from 	the University. 	Also, 	the
compensation 	housestaff 	receive 	is 	subject 	to 	federal and 	state
income 	tax 	withholding.14
13A 	change 	in 	employment 	status 	form was 	submitted 	into
evidence 	for Dr. 	Drennan, 	a 	resident 	in 	family practice 	and 	a
witness 	for 	the charging party. 	Box 	number 	9 	(nine) 	has
various classifications under 	"U.C. 	student 	status," 	including
the designations, 	from left 	to right, 	"Grad.," 	"Undergrad." and
"Not 	Regist." 	The box 	that 	was marked 	for 	Dr. 	Drennan was 	the
"not 	registered" 	box.
1 4 Rev. Rul. 	56-101, 1956-1 C.B. 89; Rev. Rul. 	57-386,
1957-2 C.B. 	107; Rev. Rul. 	72-469, 	1972-2 C.B. 	79 	(amplifying
Rev. Rul. 57-386, 1957-2 C.B. 107); Rev. Rul. 68-520, 1968-2
C.B. 58.
A 	frequently 	litigated 	question 	is 	whether 	payments
received 	by 	housestaff 	are 	excludable 	from 	gross 	income 	as
fellowships within 	the meaning 	of 	section 	117 	of 	the 	Internal
Revenue Code. 	Although 	section 	117 provides 	that 	scholarships
and 	fellowships can 	be excluded 	from gross 	income, 	payments
made 	to 	housestaff 	have 	been 	characterized 	as compensation 	for
services 	rendered 	and 	are 	not 	considered 	to 	be 	within 	the
section 	117 	scholarship exclusion. 	Parr 	v. 	United 	States 	(5th
Cir. 	1973) 	469 	F.2d 1156; 	Hembree 	v.United States 	(4th 	Cir.
1973) 	464 F.2d 	1262; 	Quast v. 	United States 	(8th Cir. 	1970)
428 F.2d 750; 	Tobin v. 	United States 	(S.D. Tex. 	1971) 	322
F. 	Supp. 	239; Wertzberger v. United States 	(W.D. Mo. 	1970) 	315
10

F.Supp. 	34, 	aff'd per curiam, 	441 F.2d 1166 	(8th Cir. 	1971);
William K. 	Rundell 	(1971) 	30 T.C.M. 	(CCH) 	177; 	J.J. 	Proskey
(1969) 	51 T.C. 918.
Except 	for 	a 	few 	residents, 	housestaff 	are paid 	through 	the
payroll desk while research 	fellows, 	postdoctorate 	fellows, 	and
others 	who do 	not 	have 	federal 	income 	tax 	withheld 	are paid
through 	the 	stipend 	desk.15
Housestaff 	receive 	evaluations 	instead of grades. 	In 	turn,
they 	evaluate 	the 	attending 	physicians 	who 	supervise 	their
work. 	They 	evaluate 	attending 	physicians 	in 	terms 	of 	the
following: 	availability, 	basic 	background knowledge 	in 	the
field of medicine, 	and 	understanding 	of 	the 	latest 	literature.
According 	to The Essentials, 	the 	relationship between
housestaff 	and 	hospital 	should 	be 	a contractual one 	with 	salary
and 	benefits 	explicitly 	set 	forth. 	The 	Directory 	lists 	the
following 	specifications 	to 	be 	contained 	in 	the contract:
terms, 	salary; conditions for 	living quarters, meals, 	and
laundry; 	provisions 	for 	malpractice and 	health 	insurance;
vacations; 	hours 	of 	duty or 	how hours are determined; 	and 	the
content 	of 	the 	educational phase 	of 	the 	residency.
15The 	University contends 	the 	stipends paid 	are 	not 	to 	be
equated 	with 	compensation 	for 	services 	rendered 	but 	are 	more
like 	a 	scholarship which 	if 	not provided would constitute
hardship 	for 	the 	housestaff. 	We 	think 	the 	contention 	is
fallacious. 	Scholarships and 	fellowships 	are 	applied 	for 	on an
individual 	basis 	and 	are 	designed 	to meet 	individual needs.
Housestaff 	salaries 	are 	paid 	uniformly 	to 	all 	residents
irrespective 	of 	need 	and 	as 	a 	condition 	of 	employment.
11

Respondent 	refers 	to 	the 	low 	expectation of 	continued
employment 	and 	to 	the mobility 	of 	some 	programs 	where
housestaff 	are 	often 	required 	to rotate 	to 	non-u.C. 	hospitals
as 	factors 	indicating 	that 	a 	stable collective 	negotiating
relationship cannot 	be 	established. 	We 	reject 	this 	argument
because 	the 	duration 	of 	employment does 	not 	deprive 	interns 	of
coverage 	under 	the Act, 	as 	long 	as 	their 	clinical duties
predominate 	over 	the 	educational objectives 	while 	employed.
The 	University 	urges 	us 	to 	follow 	the precedent 	established
by 	the National Labor 	Relations 	Board 	(NLRB) 	in 	Cedars-Sinai
Medical Center 	(1976) 	223 NLRB No. 	57 	[91 LRRM 1398], 	motion
for 	reconsideration denied, 	224 NLRB No. 	90 	[92 LRRM 1302] , 	and
St. 	Claire's Hospital and Health Center 	(1977) 	229 NLRB 	1000
[95 LRRM 1180] , 	in which 	the NLRB held that housestaff 	are
primarily 	students 	and 	therefore 	not 	employees 	entitled 	to 	the
protections 	of 	the National Labor 	Relations Act 	(NLRA).16
16The NLRA 	is 	codified 	at 	29 	U.S.C, 	section 	151 	et 	seq.
in St. 	Claire, 	the NLRB attempted 	to clarify 	its holding 	in
Cedars. 	The 	rationale 	of 	the majority was 	that 	the
student-teacher 	relationship 	is 	not 	at 	all 	analogous 	to an
employer-employee 	relationship. 	The 	former 	is 	a mutual
interest, 	the 	latter 	is 	characterized 	by conflicting
interests. 	The majority also 	presented 	a historical overview
of NLRB decisions, 	identifying 	four 	classifications. 	The
majority put 	housestaff 	in 	the 	following 	category: 	students
employed 	by 	their 	school 	in a capacity 	related 	to 	their
educational goals. 	These 	are 	excluded 	from other 	units 	and
from 	separate 	representation. 	They 	are primarily 	students, 	not
employees. 	Some prior 	NLRB decisions, 	which denied 	bargaining
rights 	to 	student 	workers 	using 	the 	"primarily 	student"
rationale, 	are 	distinguishable since 	the workers 	in 	those 	cases
12
'

were 	primarily engaged 	in 	traditional academic pursuits. 	They
were 	enrolled 	in 	formal course work, 	paid 	tuition, 	worked 	few
hours, 	and 	lacked other 	indicia of employment. 	See Adelphi
University 	(1972) 	195 NLRB No. 	107 	[79 LRRM 1545, 	1548]; 	Leland
Stanford Junior 	University 	(1974) 	214 NLRB No. 	82 	[87 	LRRM
1519].
PNHA challenged 	the NLRB's 	decision 	by 	filing 	suit 	in 	the
District Court, 	District of Columbia, 	arguing 	the NLRB had
abused 	its 	discretion 	in 	not 	finding 	housestaff 	to 	be 	employees
under 	the NLRA. 	In PNHA v. Murphy, 	443 F.Supp. 	806 	[97 LRRM
2444] , 	the 	issue was whether 	the District Court had
jurisdiction 	to 	review 	the 	decision 	of 	the 	NLRB 	to 	exclude
housestaff 	from coverage. 	The District Court 	held 	that 	it
lacked 	jurisdiction 	because 	the 	issue did 	not 	come 	within 	the
exception 	to 	the 	non-reviewability 	of 	representation 	decisions
established by Leedom v. Kyne, 	358 U.S. 	184 	[43 LRRM 2222].
PNHA appealed 	the District Court's 	ruling, 	but 	the Court of
Appeals 	for 	the 	District 	of 	Columbia 	affirmed 	the 	decision 	of
the 	District 	Court 	and 	ruled 	that 	the NLRB 	acted 	within 	its
jurisdiction. 	Physicians 	National Housestaff 	Assn, 	v. 	Fanning
(D.C. 	Cir. 	1980) 	642 	F.2d 	492 	[104 	LRRM 2940].
Section 	2(3) 	of 	the 	National 	Labor 	Relations Act 	states
that 	the 	term 	"employee" 	is 	meant 	to 	include 	"any 	employee
. 	. 	. 	unless 	the Act 	explicitly 	states otherwise," 	and proceeds
to delineate 	those 	categories 	of 	employees 	excluded 	from 	the
definition. 	Thus, 	although 	"students" are 	not 	included 	in the
statutory 	exclusions 	and 	the 	policy 	underlying 	the 	nonstatutory
exclusions 	does 	not 	reach 	"students,"17 the 	NLRB 	nonetheless
decided 	that 	housestaff 	were 	primarily 	students 	and 	therefore
not 	"employees" within 	the meaning 	of 	section 	2(3) 	of 	the NLRA.
The 	construction of 	similar 	or 	identical provisions 	of 	the
NLRA may 	be 	used 	to 	guide 	interpretation of 	the HEERA. 	See,
17The 	nonstatutory 	exclusions 	are 	confidential 	and
managerial 	employees.
13

e.g., 	San Diego Teachers Assn, 	v. 	Superior Court 	(1979) 	24
Cal.3d 1 	[154 C.R. 	893]; 	Firefighters Union v. 	City of Vallejo
(1974) 	12 Cal.3d 608, 	616 	[116 C.R. 	507]. 	The Board need not
follow NLRB precedent 	in 	the 	instant 	case 	because 	the 	relevant
statutory 	provisions 	are 	dissimilar. 	The 	most 	significant
difference 	between 	HEERA and 	the NLRA is 	that 	the 	statutory
language 	under 	HEERA specifically 	provides 	for 	a 	definition 	of
"employee" 	which 	incorporates 	the 	term 	"student." 	By doing 	so,
it 	is clear 	that 	the 	California 	Legislature 	contemplated 	that
students 	in 	California higher 	education may 	at 	the 	same 	time 	be
"employees."
We 	note 	that 	the weight 	of authority 	in other 	jurisdictions
has 	been 	to 	grant 	housestaff 	negotiating 	rights 	under 	their
respective statutes. 	For 	example, 	in Long Beach Veterans
Administration Medical Center 	(12/29/81) 	7 FLRA No. 	66,
[ 	] 	the 	Federal 	Labor 	Relations 	Authority
(Authority) 	found housestaff 	to be 	"employees" 	within 	the
meaning 	of 	section 	7103 	of 	the Federal Service Labor 	Management
Relations Act 	[5 USC No. 	71]. 	The Authority 	indicated 	that 	the
employer 	had 	declared with 	respect 	to 	its 	housestaff 	program
that 	the 	methods 	for 	accomplishing 	educational objectives 	were
essentially 	the 	same 	as 	those 	for 	accomplishing 	patient 	care
objectives, 	and 	that 	The 	Essentials 	required 	that housestaff 	be
integrated 	into 	the medical staff as 	true colleagues. 	Thus, 	in
the Authority's view, 	there was 	nothing 	inherent 	in 	the 	status
14

of 	housestaff 	as 	graduate medical 	students 	or 	trainees 	which
precluded 	a 	finding 	that 	they 	were 	also 	"employees" 	of 	the
Medical Center. 	Although 	the definition of 	"employee" 	under
the Federal Labor 	Relations Act differs 	from our 	own, 	we 	find
the 	rationale 	expressed 	by 	the 	Authority 	persuasive.18
Based 	on 	the 	considerable 	amount 	of 	time 	housestaff 	spend
on clinical activities 	and 	direct patient care, 	the nature 	of
the procedures 	they perform with 	little 	or 	no 	supervision, 	the
professional guidance 	they 	provide 	for 	interns, 	medical
students 	and other 	hospital 	employees 	such 	as 	nurses 	and
18Other 	state 	public 	employment 	boards 	have 	considered
the 	issues 	of 	collective 	negotiating 	rights 	for 	housestaff.
Notwithstanding 	the NLRB line 	of cases, 	the vast majority of
states 	addressing 	the 	question 	of 	housestaff 	rights 	have 	held
that 	housestaff 	are 	employees 	within 	the meaning 	of 	their
respective 	collective 	statutes 	and 	thus 	eligible 	to negotiate
collectively. 	See, 	e.g., 	House Officers Assn. 	v. 	University of
Nebraska Medical Center 	(1977) 	198 	Neb. 	697 	[255 N.W.2d 	258, 	95
LRRM at 	3346]; 	City of Cambridge, 	Cambridge House Officers
Assn. 	(1976) 	2 M.L.C. 	1450 	(Massachusetts Labor Cases); 	Regents
of 	the 	University of Michigan 	v. 	Michigan Employment Relations
Commission 	(1973) 	389 Mich. 	96 	[204 N.W.2d 218, 	82 LRRM 2909];
Wyckoff Heights Hosp. 	(1971) 	34 S.L.R.B. No. 	81;
Albert 	Einstein College 	of Medicine 	of 	Yeshiva 	University
(1970) 	33 S.L.R.B. No. 	86; 	Bronx Eye infirmary, 	Inc. 	(1969) 	33
S.L.R.B. 	No. 	21; 	but see, 	e.g., 	Interns and Einstein Medical
Center 	(1976) 	369 A.2d 	711 	[92 LRRM 3410]. 	We note 	that 	none
of 	the 	statutes 	involved 	in 	these 	cases 	had provisions
concerning 	persons 	with 	a dual 	status of 	student 	and 	employee.
The 	two 	state 	supreme 	courts 	which 	decided 	this 	issue 	(Michigan
and 	Nebraska) 	each 	noted 	the 	lack 	of any 	reason 	to except
students 	due 	to 	their 	student 	status. 	In 	City 	of 	Cambridge,
Cambridge 	House 	Officers Association, 	the Massachusetts 	Labor
Commission 	explicitly 	rejected 	the 	NLRB's 	determination 	that
"student" 	and 	"employee" 	status 	are mutually exclusive 	and
accepted 	the 	premise 	that 	dual 	employee/student 	status 	is 	not
inimical to collective 	negotiating 	rights.
1
15

technicians, 	and 	the 	indicia of 	employment 	that 	characterize
housestaff 	as 	employees 	rather 	than 	students, 	we 	find 	that 	the
educational 	objectives 	of 	the 	residency 	program are 	subordinate
to 	the 	delivery 	of 	services 	housestaff 	provide.
The 	second 	aspect 	of 	the 	two-pronged 	test 	to 	determine
whether 	housestaff 	are 	"employees" within 	the 	definition 	of
HEERA 	is 	to 	ascertain 	if 	coverage 	would 	further 	the purposes 	of
the Act. 	One 	of 	the specifically 	stated 	purposes 	of HEERA is
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. 	(Subsection 	3560(e)).
It 	is 	undisputed 	that 	housestaff 	work 	long 	hours 	and 	often
long 	shifts. 	It 	is logical 	for 	there 	to be a, correlation
between 	quality of 	care 	and 	hours 	and working 	conditions.
Coverage 	of 	housestaff 	under 	the Act 	will 	thus 	provide 	them
with 	the 	opportunity 	to participate 	fully 	in 	the determination
of 	the 	conditions 	of 	employment 	which 	affect 	them 	such 	as 	wages
and 	working 	hours.19
19Coverage 	will 	also 	afford 	the 	parties 	with 	a 	legal
mechanism 	for 	resolving 	their 	differences, 	and 	minimize 	or
eliminate 	the potential for 	strikes 	because 	of 	the 	orderly and
16

clearly defined 	procedures 	established 	in 	the Act 	for 	meeting
and conferring 	and 	the 	resolution 	of 	impasse, 	which 	the parties
must exhaust 	in 	an 	attempt 	to 	resolve 	their 	differences.
While 	the 	scope 	of 	negotiations 	provided 	by HEERA has 	yet
to be determined, 	we 	note 	that 	the 	negotiating 	relationship may
encompass a 	variety 	of 	interests 	beyond 	the 	traditional
subjects 	of wages 	and 	hours. 	Such 	is 	the case 	with 	medical
professionals. 	For 	example, 	family practice physicians,
utilizing 	a 	multi-discipline 	approach 	to 	the 	delivery 	of 	health
care, 	may 	be 	concerned 	about 	having 	the proper 	facilities 	and
equipment 	to 	treat 	their 	patients. 	Psychiatrists 	may 	be
vitally 	interested 	in 	the 	amount 	of 	time 	allowed 	for 	diagnostic
testing 	and 	evaluation 	as 	well as 	the 	test 	battery 	itself. 	All
doctors 	are 	presumably 	concerned 	with 	available 	diagnostic 	and
treatment equipment, 	facilities 	and 	procedures. 	Yet hospital
policy 	directed 	from 	"above" 	may 	conceivably 	create 	conflict
between 	professional concerns 	and 	managerial decision making.
Such 	conflicts 	are 	often best 	resolved 	by 	the 	"mediatory
influence 	of 	collective 	bargaining." 	See 	Anaheim 	Unified 	High
School District 	(10/28/81) 	PERB Decision No. 	177.
Thus, 	the educational mission of 	the University as 	it
relates 	to 	the 	delivery 	of 	the 	highest 	quality 	of 	health 	care
services 	and 	research 	is 	best 	served 	by 	granting 	housestaff 	the
collective 	negotiation 	rights 	outlined 	in 	HEERA.
17

The 	University also 	argues 	that 	affording 	housestaff
coverage 	under 	HEERA will 	infringe 	upon 	the 	educational
objectives 	of 	residency 	programs. 	Nothing 	presented 	by 	the
University 	has 	persuaded 	us 	that 	the 	process 	of 	collective
negotiating 	cannot 	realistically 	coexist 	with 	effective
residency 	programs.
In enacting HEERA, 	EERA, 	and SEERA, 	the California
Legislature 	evidenced 	an 	intent 	to 	afford 	collective
negotiating 	rights 	to 	a majority 	of public 	sector 	employees.
Affording 	housestaff 	coverage 	under 	HEERA will 	provide 	them
with 	a comprehensive 	and 	legal mechanism 	for 	the 	resolution 	of
disputes 	which 	will 	have 	a 	salutary 	effect on 	the 	nature 	of 	the
relationship between 	housestaff, 	the hospitals 	and 	the
University 	and 	will 	thus 	further 	the purposes 	of 	the Act.
VIOLATION AND 	REMEDY
The 	University 	terminated 	the 	dues 	deductions 	on 	or 	about
August 	1, 	1979. 	PNHA was 	notified 	that 	the 	University did 	not
consider 	housestaff 	to be 	"employees" 	within 	the meaning 	of 	the
Act 	and 	that 	PNHA was 	not 	an 	employee 	organization 	entitled 	to
such 	deductions. 	As 	a 	result, 	dues 	were 	not withheld 	from 	the
monthly paychecks 	received 	by 	PNHA's 	members on or 	about
August 	1, 	1979 	and 	thereafter 	at 	the medical 	schools 	at 	Irvine,
San Francisco, 	and Davis.
18

HEERA provides 	an 	absolute 	guarantee 	of 	dues
deductions,20 unlike 	the NLRA which 	leaves 	the 	issue 	to 	the
collective 	negotiating 	arena.
Since 	housestaff 	are 	"employees" within 	the meaning 	of 	the
Act, 	we 	find 	the University has breached 	the 	rights 	established
in 	section 	3585 	by 	refusing 	to make 	authorized 	payroll
deductions 	on behalf of PNHA since on or 	about August 	1, 	1979.
The 	termination of 	the dues 	deduction on 	behalf 	of 	PNHA by 	the
University 	therefore 	constitutes 	a 	violation 	of
subsection 	3571(b) 	by denying 	PNHA 	its 	statutory 	right 	to
receive 	dues 	deductions. 	Fresno 	Unified 	School 	District
(4/30/82) 	PERB Decision No. 	208. 	We also 	find 	a concurrent
violation of 	subsection 3571(a). 	Therefore, 	PNHA is 	entitled
to 	recover 	dues 	lost 	when 	the 	University 	terminated 	as 	of
August 	1, 	1979, 	the payroll 	dues 	deductions 	of PNHA members
employed 	by 	the 	University, 	for 	such 	time 	as 	PNHA members
20Section 	3585 	states:
In 	the 	absence 	of 	an 	arrangement pursuant 	to
Section 	3583, 	an employer 	shall, 	upon
written 	authorization 	by 	the 	employee
involved, 	deduct 	and 	remit 	to 	the 	exclusive
representative, 	or 	in 	the absence of an
exclusive 	representative 	to 	the 	employee
organization of 	the employee's choice, 	the
standard 	initiation 	fee, 	periodic dues, 	and
general assessments 	of 	such 	organization,
until 	such 	time 	as 	an exclusive
representative 	has 	been 	selected 	for 	the
employee's unit. 	Thereafter, 	deductions
shall 	be 	made 	only 	for 	the 	exclusive
representative.
19

continued 	to 	be 	employees 	of 	the 	University, 	provided 	that
PNHA did 	not 	personally 	collect 	such 	dues 	from 	its 	members
through other 	means. 	See, 	Seneca Environmental Products,
(1979) 	243 NLRB No. 	77 	[102 LRRM 1055]; 	and NLRB v. 	Shen-Mar
Food Products, 	Inc. 	(1979) 	568 P.2d 665 	[CA. 	9 ] , 	221 NLRB
No. 	219 	[91 LRRM 1122]. 	The Board Remands 	to 	the chief
administrative 	law 	judge 	the 	determination 	of 	the 	exact 	amount
of dues 	that 	PNHA lost 	as 	a 	result 	of 	the University's 	unlawful
termination 	of 	authorized 	payroll 	deductions.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law 	and 	the 	entire
record 	in 	this case, 	it 	is 	found 	that 	the Regents of the
University 	of 	California 	have 	breached 	the 	rights 	established
in 	section 	3585 	and 	have 	therefore 	violated 	subsections 	3571(a)
and 	(b) 	of 	the Higher 	Education Employer-Employee 	Relations Act,
I. 	It 	is 	hereby ORDERED 	that 	the Regents 	and 	its
representatives 	shall:
A. 	CEASE AND 	DESIST FROM:
1. 	Refusing 	to make payroll dues 	deductions 	for 	the
housestaff 	in 	the 	University's 	post-graduate medical 	training
programs 	at 	the medical schools 	at 	Irvine, 	San Francisco, 	and
Davis 	on 	behalf 	of 	Physicians 	National 	Housestaff 	Association
in violation of subsections 	3571(a) 	and 	(b) 	of the Higher
Education 	Employer-Employee 	Relations 	Act.
20

B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE POLICIES OF 	THE ACT:
1. 	When 	the 	exact 	amount 	of 	dues 	owed 	is
ascertained, 	the University 	is 	required 	to 	reimburse 	the
Physicians 	National 	Housestaff 	Association 	for 	the 	dues 	it
actually 	lost 	when 	the 	University 	terminated 	as 	of August 	1,
1979 	the 	payroll 	dues 	deductions 	of 	PNHA members 	employed 	by
the University 	for 	such 	time 	as 	the PNHA members 	continued 	to
be 	employees 	of 	the 	University 	and 	whose 	dues 	the Association
did 	not 	personally 	collect.
2. 	Within 	five 	(5) 	workdays of 	the date 	of 	service
of 	this 	Decision, 	post 	at 	all 	locations 	where 	notices 	to
housestaff 	are 	customarily placed 	copies 	of 	the 	Notice 	attached
as 	Appendix A hereto, 	signed 	by 	an 	authorized 	agent 	of 	the
Regents. 	Such 	posting 	shall 	be 	maintained 	for 	a period 	of
thirty 	(30) 	consecutive workdays. 	Reasonable 	steps 	shall be
taken 	to 	insure 	that 	the Notices 	are 	not 	reduced 	in 	size,
altered, 	defaced 	or 	covered 	with 	any other 	material.
3. 	At 	the 	end 	of 	the posting 	period, 	notify 	in
writing 	the 	San 	Francisco 	regional director 	of 	the 	Public
Employment Relations 	Board 	of 	the 	actions 	the 	Regents 	have
taken 	to 	comply 	with 	this 	Order.
II. 	The Board 	REMANDS 	to 	the 	chief administrative 	law judge
the 	determination 	of 	the 	exact 	amount 	of 	dues 	that 	PNHA lost 	as
21

a 	result 	of 	the University's unlawful 	termination of authorized
payroll 	deductions.
Chairperson Gluck and Member Jaeger joined 	in this Decision.
22
.

APPENDIX 	A NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	practice Case 	No. 	SF-CE-1-H
Physicians 	National 	Housestaff Association v. 	Regents 	of 	the
University of California, 	in 	which 	all parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	Regents 	of 	the
University 	of 	California have 	violated 	subsections 	3571(a) 	and
(b) 	of 	the Higher 	Education Employer-Employee 	Relations Act
(HEERA) 	by ceasing 	to make payroll dues 	deductions 	for
housestaff.
As 	a result of 	this 	conduct, 	we 	have 	been ordered 	to post
this 	Notice, 	and we will 	abide by 	the 	following:
A. 	CEASE AND 	DESIST FROM:
1. 	Refusing 	to make payroll 	deductions 	for 	the
housestaff 	in 	the 	University's post-graduate 	medical 	training
programs at 	the medical 	schools at 	Irvine, 	San Francisco, 	and
Davis 	on 	behalf 	of 	Physicians 	National Housestaff 	Association
in violation of 	subsections 	3571(a) 	and 	(b) 	of 	the Higher
Employer-Employee 	Relations 	Act.
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE ACTIONS DESIGNED 	TO
EFFECTUATE 	THE POLICIES OF 	THE ACT:
1. 	When 	the 	exact 	amount 	of 	dues 	owed 	is 	ascertained,
the 	University 	will 	reimburse 	the 	Physicians 	National
Housestaff 	Association 	for 	the 	dues 	it 	actually 	lost 	when 	the
University 	terminated 	as 	of August 	1, 	1979 	the payroll dues
deductions 	of 	PNHA members 	employed 	by 	the 	University 	for 	such
time 	as 	the 	PNHA members continued 	to 	be 	employees 	of 	the
University 	and 	whose 	dues 	the 	Association 	did 	not 	personally
collect.
Dated: 	THE 	REGENTS 	OF 	THE 	UNIVERSITY
OF CALIFORNIA
By Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM 	THE DATE OF 	POSTING AND MUST 	NOT
BE REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL,