State of California (Department of Personnel Administration) (American Federation of State, County and Municipal Employees) (PERB 0988S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STATE OF CALIFORNIA (DEPARTMENT
OF PERSONNEL ADMINISTRATION) ,

Case No. S-S-130-S
(S-SR-19)

Employer,
and

AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,

PERB Decision No. 988-S

April 9, 1993
Exclusive Representative,

and

STATE PSYCHOLOGISTS IN PUBLIC
SERVICE,

Petitioner.

Nee ee ee ee ee ee Sie tere et ee eee Nee eet eet Net Sree ee

Appearances: Warren C. Stracener, Labor Relations Counsel, for
State of California (Department of Personnel Administration); .
Beeson, Tayer & Bodine by Joseph R. Colton, Attorney, for
American Federation of State, County and Municipal Employees;
Loren E. McMaster, Attorney, for State Psychologists in Public
Service.

Before Blair, Chair; Caffrey and Carlyle, Members.
DECISION

CARLYLE, Member: This case is before the Public Employment
Relations Board (Board) on appeal by the State Psychologists in
Public Service (SPPS) to the proposed decision (attached hereto)
of a Board agent’s dismissal of SPPS’s severance petition. The
SPPS sought to sever 21 classifications from State Bargaining
Unit 19 (Professional, Heaith and Social Services unit).

The Board has reviewed the entire record, including the
proposed decision, transcripts, SPPS’s appeal, the American

Federation of State, County and Municipal Employees’ response and

the State of California (Department of Personnel Administration)	
of
response thereto. 	The Board finds the Board agent's findings of
fact and conclusions of law to be free of prejudicial error and
adopts them as the decision of the Board itself.
ORDER
Based upon the entire record in this case, the Board agent's
determination is affirmed and it is ORDERED that the severance
petition filed by the State Psychologists in Public Service be
DISMISSED.
Chair Blair and Member Caffrey joined in this Decision.
N

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA ( DEPARTMENT
OF PERSONNEL ADMINISTRATION) ,
Employer,
and
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES ,
Exclusive Representative,
and
STATE PSYCHOLOGISTS IN PUBLIC
SERVICE,
Petitioner.
Representation
Case No. S-S-130-S
(S-SR-19)
PROPOSED DECISION
(July 2, 1992)
Appearances: 	Christopher W. Waddell, Chief Counsel, Tamara J.
Pierson, Deputy Chief Counsel, and Warren C. Stracener, Labor
Relations Council, for State of California (Department of
Personnel Administration) ; Beeson, Tayer, & Bodine, by Joseph R.
Colton for American Federation of State, County and Municipal
Employees; and Loren E. McMaster for State Psychologists in
Public Service.
Before Charles F. Mcclamma, Hearing Officer.
PROCEDURAL HISTORY
On November 30, 1990, State Psychologists in Public Service
(SPPS or petitioner) filed a petition seeking to sever a group of
employees' from the existing state bargaining Unit No. 19 (Health
The number of employees sought to be severed is
approximately 455; they are in the following job classifications:
Clinical Psychology Intern
Consulting Psychologist II
Consultant in Behavioral Sciences, DHS
Psychologist-Clinical
Psychologist (Counseling)
Psychologist (Educational)
Psychologist (Experimental)
Psychologist (Health Facility-Clinical)
This proposed decision has been appealed to the
Board itself and may not be cited as precedent	Board 	may
unless the decision and its rationale have been
- danhad his the Brand

and Social Services/Professional) .' The petition was found to be
timely filed and to have sufficient proof of support by the
Sacramento Regional Director of the Public Employment Relations
Board (PERB or Board) . Both the employer, State of California
(Department of Personnel Administration) (State), and the
exclusive representative of Unit 19, American Federation of
State, County and Municipal Employees, Local 2620 (AFSCME or
Local) , opposed the petition. A settlement conference held on 	on
January 30, 1991, was unsuccessful.
Between June 3, 1991, and September 18, 1991, seven days of
hearing were conducted. " A transcript was prepared, briefs were
filed, and the case was submitted for decision on January 8,
1992 .
Psychologist (Health Facility-Counseling)
Psychologist (Health Facility-Educational)
Psychologist (Health Facility-Experimental)
Psychologist (Health Facility-Social)
Psychology Associate
Psychology Internship Director
Senior Psychologist (Health Facility)
Senior Psychologist
Staff Psychologist-Counseling
Staff Psychologist-Clinical
Vocational Psychologist
Psychometrist
Psychoacoustician
Unit 19 is composed of approximately 107 classifications
and includes approximately 3,300 employees who typically possess
advanced educational qualifications and provide health care or
social services to clients. (See Unit Determination for the
State of California (1979) PERB Decision No. 110-S. )
The first five days of hearing were held before the
undersigned, and the last two days before Administrative Law
Judge Fred D'Orazio.
N

FINDINGS OF FACT
As the job titles of the classifications listed in footnote
1 reflect, the unit which SPPS is seeking to represent consists
primarily of psychologists performing a variety of functions in
various settings. The proposed unit also includes two
classifications, psychometrist and psychoacoustician, whose
duties are related to those of psychologists."
Job Qualifications
Psychologists employed by the State, with few exceptions,
are required to have a doctoral degree in psychology and at least
one year of supervised internship.' Most State psychologists,
particularly those on the staff of a health facility (including
clinical, counseling, educational, experimental, and social
psychologists) must also possess a license, or if unlicensed when
hired, must secure one within two years of appointment.
Licensure requires a doctoral degree in psychology, completion of
one year of pre-doctoral and one year of post-doctoral
experience, and successful completion of an examination.
Although the classification Consultant in Behavioral
Sciences, DHS, was also included in the list of positions sought
by SPPS, the record is devoid of information about the
classification other than information indicating there are no
incumbents currently in the class.
The exceptions are as follows: Vocational Psychologists
are required to have a masters degree; the Department of
Rehabilitation employs approximately 13. Clinical Psychology
Interns are in the process of receiving their required
postdoctoral training; the Department of Mental Health employs
approximately 16. Psychology Associates are in the process of
completing training and academic requirements for the doctoral
degree; the Departments of Developmental Services and Mental
Health each employs approximately 3.
3

Psychometrists administer, but do not interpret,
psychological tests. A college degree or its equivalent is
required, and graduate study is desirable. 	Three psychometrists
are employed by the Department of Corrections and one each by the
Department of Mental Health and the Youth Authority.
Psychoacousticians study the psychological and physiological
effects of noise on people. They are required to have a master's
degree and four years of experience. None are currently employed
in State service.
Although the possession of advanced educational
qualifications is typical of the other classifications in Unit
19, there are significant differences among these qualifications.	
~hPAB
	~,~1ifir~~innA
Some classifications require the equivalent of graduation from
college, including, for example, clinical dietician, and	
college,
community resources specialist. Classifications requiring
master's degrees include psychiatric social workers, social
service consultants, and public health consultants. 	Those
classifications requiring licensure include physical therapists,
speech pathologists, audiologists, pharmacists, and optometrists.
Distribution of Classifications	
Pistribution
Of the approximately 455 employees which SPPS seeks to
represent, by far the greatest number work for three
departments: Mental Health, Developmental Services, and
6
The numbers of employees in occupational groups and	
The
specific classes presented on the following pages is drawn from
data contained in Joint Exhibit No. 1. Although care was taken
to arrive at accurate figures, if minor errors in calculation
were made they would not alter the decision in this case.	
were

Corrections. Relatively few work for four other departments:
Rehabilitation, Youth Authority, Veterans Affairs, and Social
Services. 	These same seven departments also employ a large
majority of all employees in Unit 19.
Department of Mental Health
The Department of Mental Health (DMH) maintains state
hospitals which provide care for patients with a variety of
mental disorders or illnesses. 	Some patients have chronic,
severe behavioral problems and are hospitalized as a result of
involuntary civil commitments and conservatorships; others have
been found incompetent to stand trial or have been adjudicated
not guilty by reason of insanity.
Approximately 150 psychologists are employed at the four DMH
state hospitals. 	In addition, five psychologists are employed at
the Vacaville Psychiatric Facility, and five consulting
psychologists are employed at the DMH administrative offices.
DMH also employs a number of other Unit 19 classifications at
those sites: approximately 254 psychiatric social workers;
approximately 223 rehabilitation and industrial therapists;
approximately 34 clinical dieticians; and approximately 34
pharmacists.
A majority of DMH psychologists are clinical psychologists
who perform psychological assessments and also engage in the
Joint Exhibit No. 2 lists the number of incumbents in the
classifications within Unit 19 by department and facility. It
reveals that approximately 95 percent of Unit 19 employees work
in those seven departments.
5
'

treatment of patients, both individually and in groups.
Generally, these psychologists work as part of interdisciplinary
(ID) teams consisting of hospital staff members in various
classifications, all of whom provide services to patients. 	The
institutions and the needs of their patients vary, hence, the ID
teams vary somewhat in their composition from institution to
institution, as well as within the institutions themselves. 	A
core ID team most often includes a psychologist, a psychiatric
social worker, a rehabilitation therapist, a psychiatrist, and a
registered nurse. 	Depending upon individual patient needs, an ID
team often also includes a psychiatric technician, and less
often, one or more of the following: dentist, dietician,
podiatrist, and pharmacist.
ID teams usually meet briefly at the start of a shift, and
then again once or twice a week for up to several hours. 	The
teams discuss a wide range of subjects, including patient
diagnoses and treatment plans, disposition plans for patients
leaving the institution, and patient behavioral problems. 	ID
teams usually attempt to arrive at a consensus concerning
diagnosis and treatment. However, when consensus is not
possible, the psychiatrist has ultimate authority to render a
diagnosis and authorize a treatment plan.
In addition to the periodic meetings as members of ID teams,
psychologists meet alone with psychiatrists, particularly to
review newly admitted patients and to develop diagnoses. The
results of their meetings are shared with the ID teams.
6

DMH psychologists and, to a lesser degree, psychiatrists and
psychiatric social workers, engage patients in individual and
group psychotherapy, which consists of a variety of techniques
intended to alleviate mental illness. Social workers spend less
time than psychologists engaging in psychotherapy because they
must devote time to case management issues (such as
conservatorship status ), and to dealing with patients' families.
Social workers also evaluate patients; these evaluations are
similar to those of psychologists but emphasize social history.
DMH consulting psychologists, rather than providing direct
services to clients or patients, consult with other agencies, for
example, counties or private entities, which provide services to
clients. 	They have little, if any, contact with other Unit 19
classifications.
Department of Developmental Services
The Department of Developmental Services (DDS) provides
services to clients with developmental disabilities rather than
mental illnesses. A developmental disability generally indicates
the individual has a level of intellectual functioning well below
the mean and has substantial deficits in adaptive behaviors. 	DDS
operates seven developmental facilities around the state, and
employs approximately 145 psychologists, a majority of whom are
clinical psychologists. DDS also employs a number of other
classifications within Unit 19, the most numerous of which are
rehabilitation therapists (approximately 340), psychiatric social
7

workers (approximately 164), pharmacists (approximately 60), and
clinical dieticians (approximately 43).
The ID team approach to patient care predominates at DDS
facilities, even to a greater extent than at DMH. A typical team
consists of a psychologist, social worker, psychiatrist, nurse,
and rehabilitation therapist or teacher. A dietician,
pharmacist, or other specialist may meet with a team if the
patient's condition requires their expertise.
ID admissions teams meet daily for an initial screening of
new patients and, shortly thereafter, following evaluations by
each of the disciplines. ID treatment teams meet annually for a
planning conference and semi-annually for a review concerning
each patient. 	Team meetings also occur if there are significant
changes in the status or condition of patients. 	Less formal
meetings or consultations also occur regularly between the
psychologists and others who work directly with patients,
including, for example, psychiatrists, psychiatric technicians,
recreation therapists, and teachers.
Typically, a staff clinical psychologist at a DDS facility
will be involved in the consultation and development of
behavioral programming for patients, direct observation or
interaction with patients, preparation of reports and
evaluations, and serving as the individual plan coordinator of a
particular patient's program.

Department of Corrections
The Department of Corrections (DC) employs approximately 95
psychologists at its facilities throughout the state. 	DC also
employs other classifications within Unit 19, the most numerous
of which are chaplains (approximately 78) and pharmacists
(approximately 32) . The primary duties of DC psychologists are
to provide evaluations of, and psychotherapy for, inmates. 	The
evaluations are used by the courts, the Board of Prisons, and DC
itself. DC also employs psychiatrists, whose duties are
essentially interchangeable with the psychologists and with whom
the psychologists work closely. However, psychologists, unlike
psychiatrists, may not prescribe medication or admit inmates to
in-patient medical facilities. DC psychologists have little
contact with employees in other Unit 19 classifications.
Issues of Importance to Psychologists	
Importance
The "scope of practice" of psychologists employed by the
State has been, and continues to be, an issue of great interest
to the psychologists. 	"Scope of practice" refers to the duties
which their license allows them to perform." A closely related
issue is medical staff membership.' By extending medical staff
The scope of the licensure of clinical psychologists, as
defined by Business and Professions Code section 2903, includes
diagnosis, prevention, treatment and amelioration of
psychological problems. However, section 2904 precludes clinical
psychologists from prescribing drugs, performing surgery, or
administering electro-convulsive therapy.
Four professions are permitted by law to serve on the
medical staffs of health facilities: physicians, dentists,
podiatrists, and clinical psychologists.
9

membership, hospitals permit clinical psychologists to function
within the full scope of their practice, and to admit, diagnose,
treat, and discharge patients."
Among Unit 19 classifications, only clinical psychologists
are permitted by law to serve on hospital medical staffs;	
staffs;
nevertheless, the State as an employer has not extended medical
staff privileges to its psychologists, but rather has allowed
individual facilities or institutions the right to decide whether
to grant the privilege. That the State institutions generally
have not done so" is a matter of concern to psychologists.
Other issues of particular concern to psychologists are the
relatively few pay grades through which they may advance in State
service and their low rate of pay compared to psychologists in
private practice. 	These factors are viewed by psychologists as
adversely effecting the recruitment and retention of
psychologists.
AFSCME Structure
Stewards act on behalf of AFSCME at the work sites. 	There
are often a number of stewards at larger facilities, including
one for each of the major occupational groups in Unit 19. 	Each
major DMH and DDS facility also has a chief steward. Employees
not otherwise represented by a chief steward at a work site are
represented by an "area" chief steward.
see, California Association of Psychology Providers v.
Rank (1990) 51 Cal. 3d 1 [270 Cal . Rptr. 796].
"Psychologists are on the medical staff at one DC facility,
the California Men's Colony at San Luis Obispo.
10
"area"

Occupational committees have been established for the
following major occupational groups in Unit 19: chaplains,
licensing program analysts, pharmacists, psychologists,
rehabilitation counselors, rehabilitation therapists, and social
workers ." 	Occupational committees are intended to bring issues
of special interest to an occupational group, including
bargaining proposals, to the Local. They also monitor
implementation of contract items, consider problems arising for
their particular occupations, and advocate changes. 	Members of
occupational committees and their chairpersons are elected by
members within the occupational group. 	Occupational committees
usually meet four to six times per year.
The Local's five member Executive Committee is composed of
the president, northern and southern vice presidents, secretary,
and treasurer. 	An annual election is held to fill these offices.
The Executive Committee meets once a month to receive reports, to
plan strategies for problem areas, and to act on funding requests
which cannot wait for the next Executive Board meeting. 	A
psychologist served on the Executive Committee as treasurer in
1984-85.
Each member of the Executive Committee, the chairpersons of
the seven occupational committees, and each area and hospital
chief steward comprise the Executive Board. From 1985 through
1991 at least one, and as many as four, psychologists have served
An occupational committee may be formed at the request of
members in related job classifications, subject to the approval
of the Executive Board.
11

on the Executive Board each year. 	The Executive Board meets
every other month; all meetings are open. A typical agenda
includes reports by the secretary, treasurer, chief stewards, and
occupational committee chairpersons; the board also engages in
problem-solving concerning issues facing the Local. 	The board
votes on requests to fund occupational committee meetings in
advance of each meeting, providing money for transportation,
accommodations and meals.
An individual who wishes to raise an issue with the
Executive Board may do so by contacting an occupational chair or
any executive officer and asking that the issue be raised, or by
attending a board meeting and asking to be placed on the agenda.
Meetings are rotated between Los Angeles and San Francisco.
The bargaining team is composed of representatives of each
occupational committee, the Local's president and two vice
presidents, and the chief negotiator, who is usually an AFSCME
business agent. 	Sometimes bargaining proposals are initiated by
an occupational committee; the actual proposal may be drafted by
the committee, or the concept may be presented to the negotiating
team and written by the occupational committee chair with
assistance from negotiating team members.
The Local is affiliated with AFSCME Council 57, which
provides various kinds of services, including staffing, offices,
clerical and technical support, research, and legislative
activity. Four staff persons from the Council, three of whom
12

work full-time, are assigned to assist the Local in representing
Unit 19.
AFSCME/Psychologists Relationship
The State Psychologists Occupational Committee (SPOC) was
among the four occupational committees initially established
after the Local began representing Unit 19. During an Executive
Board meeting in about 1989 or 1990, SPOC's then chair, Dr.
Maurice Lyons, sought approval for SPOC meetings every other
month for a year. Dr. Lyons believed that lack of communication
among psychologists was a major problem for the psychologists,
and one which could be addressed by more frequent SPOC meetings.
Because his request sought advance approval for meetings for an
entire year, it was inconsistent with the usual practice of
approving meetings individually. It was, therefore, rejected.
Dr. Thomas Knoblauch, a clinical psychologist at Napa State
Hospital, was the Napa State SPOC representative between March of
1989 and early 1991. He found the Local's business agent to be
unresponsive to SPOC's requests for information about AFSCME, for
example, membership rosters, bylaws of the AFSCME international,
minutes of the Executive Board meetings, " and the working
budget. He had concerns about how the unit was staffed and
wished to have a sense of whether monies would be available to
pursue psychologists' goal of gaining staff privileges following
the decision in CAPP v. Rank, supra, 51 Cal. 3d 1. He perceived
"The minutes he sought were eventually provided by the
teward at Napa State.	s
13
.Bfillk,

that critical time was lost in re-educating the Local's staff
after that decision was decided in June of 1990.14
Bargaining History
AFSCME is the only organization to represent Unit 19 since
its inception. The State and AFSCME have entered into five
collective bargaining agreements. A side letter to the second
agreement, 1984-85, provided for establishment of a study group
to produce a report on the issue of providing staff privileges to
psychologists at State hospitals.
In 1987 Dr. Robert Vreeland, a psychologist at Napa State
Hospital, was SPOC chair and served on the negotiating team.
Bargaining issues of special interest to psychologists at that
time were scope of practice and a pay differential for licensed
and unlicensed psychologists. Dr. Vreeland felt that the
bargaining team pushed hard for their proposals on these issues,
albeit without success. However, side letters to the 1987-88 and
1988-91 agreements provided for discussions regarding scope of
practice and medical staff memberships if CAPP v. Rank were
decided during the terms of the agreements. A court decision was
issued during the term of the latter agreement, and AFSCME's
business agent, Elgin Bradley, requested discussions on those
issues in a letter to the State dated October 3, 1990.
Discussions held during early 1991 produced no change; the State
continued to allow individual institutions to decide for
"The decision issued June 25, 1990, and was modified on
denial of rehearing on September 20, 1990. .
14
hard

themselves whether to grant staff privileges. DDS preferred to
allow its facilities discretion to grant staff privileges to
psychologists, based upon whether there was a cooperative
relationship between physicians and psychologists at each site.
The Local and the State have negotiated contract provisions
which have been particularly, if not exclusively, beneficial to
psychologists, including reimbursement for license renewal fees,
eligibility to be considered for a pay differential (Alternate
Range 40) for certain supervisory work, and eligibility for a
recruitment and retention pay differential. A provision 	A
applicable to all Unit 19 classes, but of particular value to
psychologists, especially those studying for their licenses or
seeking to establish private practices, permitted the
establishment of alternate work schedules.
Formation of State Psychologists in Public Service
An organization called Psychologists in Public Service
(PIPS) came into being in the 1970's, and played a role during
the organizing activities which led to the existing State units.
Following AFSCME certification by PERB as the exclusive
representative of Unit 19 in 1981, PIPS became relatively
inactive. 	In about 1990 Dr. Lyons began to revitalize PIPS. 	He
concluded that PIPS' name was too similar to a division of the
California Psychological Association; therefore, he changed the
name to its present form, State Psychologists in Public Service.
Changes by Dr. Lyons to PIPS' by-laws became the by-laws of SPPS.
In October of 1990, Dr. Lyons wrote a letter to State
15

psychologists explaining his reasons for wishing to create an
organization and the process by which to file a severance
petition with PERB. He enclosed a membership application as well
as proof of support forms. The membership application states the
purpose of SPPS to be "to represent State Psychologists in their
relations with the State of California. " In excess of 100
membership applications have been received by SPPS. 	Dr.
Knoblauch is Acting President, Dr. William Safarjan is Acting
Secretary/Treasurer, and Dr. Lyons is "Coordinator". SPPS
accepts contributions but currently has no dues.
Impact on State of Additional Unit
The establishment of an additional bargaining unit of
psychologists would require additional staff resources in DDS'
labor relations office because of the time required for
negotiations and the training of managers at various DDS
facilities. 	Labor relations coordinators, program directors,
training officers, and personnel staff at each facility are
currently dealing with employees in seven different units;
severance of psychologists would require them to be familiar with
the provisions of yet another agreement.
DMH headquarters currently has five staff persons working on
labor relations for its 8,000 employees in 19 bargaining units.
An additional unit would require additional time for bargaining
and for meeting and conferring. The impact on managers at DMH
facilities would be similar to that on DDS staff.
16

The Labor Relations Division of the Department of Personnel
Administration has seven negotiators to handle contract
bargaining for the existing state units. Those staff persons
dealing with the larger and more complex units each have two
units assigned. The staff person currently dealing with Unit 19
would likely handle an additional psychologist unit were it to be
approved, because additional staffing is not anticipated.
Proportionally less time would be available for dealing with such
matters as bargaining, meeting and conferring, grievances, and
unfair practice charges.
ISSUE
Should the proposed unit of psychologists and related	~nd 	rA1~rAn
classifications be severed from existing Unit No. 19?"
DISCUSSION
Section 3521" of the Ralph C. Dills Act (Dills Act or Act).'
sets forth the following criteria to be considered in determining
an appropriate unit:
(b) (1) The internal and occupational
community of interest among the employees,
A second issue was raised at the hearing when AFSCME
declined to stipulate that SPPS is an employee organization
within the meaning of Government Code section 3513 (a) . However,
the facts set forth at pages 15 and 16 of this decision reveal
that SPPS possesses all the necessary indicia of an employee
organization. 	(See State of California (Department of
Developmental Services) (1982) PERB Decision No. 228-S.)
All references are to the Government Code unless otherwise
indicated.
1The Dills Act, which formerly was known as the State
Employer-Employee Relations Act, is found in Government Code
section 3512 et seq.
17

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
in state government and in similar
employment; the extent to which the employees
have common skills, working conditions, job
duties, or similar 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 state
government, 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 state government and its
employees to serve 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
employees or any proliferation of units among
the employees of the employer.
Unit 19 was among the 20 units initially created by PERB for
meeting and conferring between the State and its civil service
employees. (Unit Determination for the State of California,
supra, PERB Decision No. 110-S. ) The Board found
18

that employees in [Unit 19] have a strong
community of interest, common goals and
skills and interrelated functions.
These employees also possess advanced
educational qualifications and skills and
typically require licensure, certification or
credentialing. Most employees perform
similar functions focusing on evaluation and
assessment of client needs, client counseling
and consultation, or client follow-up
services of a health, social or employment
nature. Some employees plan, organize and
coordinate programs while others, such as the
pharmacists or the hearing and vision
specialists, concentrate on a single area of
expertise. 	Yet these varied occupations work
toward the common established goal of
assisting the whole person to achieve a
satisfying and self-sufficient life.
The Board went on to note that it had not divided
classifications "who work in various settings, such as hospitals,	"who
offices, and the community. " Rather, the Board focused "on the 	"on
large extent to which employees in all locations render
functionally related services, coordinate the delivery of
services, have frequent contact and share common skills, working
conditions and duties. " Finally, the Board concluded that
(tlo disregard this inherent community of
interest would result in a proliferation of
units and fragment employees, and would
thereby have a detrimental impact on the
employer-employee meet and confer
relationship.
Since the initial establishment of the 20 state units, the
Board has considered relatively few requests to alter those
units . 	In State of California (Department of Personnel
Administration) (1989) PERB Decision No. 773-S, a petition to
sever a group of employees from bargaining Unit No. 7 (Protective
19

Services and Public Safety) was dismissed. The Board agreed with
the conclusions of the administrative law judge, who had found
that employees within the proposed unit share
a community of interest with employees
excluded from the proposed unit, that other
law enforcement personnel are excluded from
the proposed unit, that a stable bargaining
relationship exists and that, therefore,
there is insufficient justification to
establish the proposed unit.
Not until 1990 was the initial bargaining unit structure for
the State altered. In State of California (Department of
Personnel Administration) (1990) PERB Decision 794-S, the Board
found that Unit 3 (Library and Education) should be divided into
two units: Unit 3 (Institutional Education) and Unit 21
(Educational Consultant, Library and Maritime) . The majority
found the petitioner had overcome the rebuttable presumption in
favor of the existing unit, and had established that the new
units were more appropriate. This rule is also applicable to the
instant case.
Although State of California (Department of Personnel
Administration), supra, and this case are factually dissimilar,
the Board's analysis is highly instructive. 	The factors listed
18
"SPPS's brief makes only a passing reference to State of	SPPS 1 s
California (Department of Personnel Administration), supra.
Instead, SPPS argues that a case decided under the Higher
Education Employer-Employee Relations Act, Regents of the
University of California (1982) PERB Decision No. 245-H, is
analogous to the instant case and that "PERB determined that the
original unit determination should be revisited. " 	( Petitioner's
Written Argument, p. 5) However, SPPS mistakenly cites the
original unit determination; the case to which SPPS refers and
from which it subsequently quotes is Regents of the University of
California (1986) PERB Decision No. 586-H. More importantly,
that case is significantly different from the instant case in
20

in Government Code section 3521 were not applied rigidly, but
rather were considered, weighed, and balanced. Two factors
contributed significantly to the Board's decision to split Unit 3
into two units: 	community of interest and bargaining history.
In establishing the unit in 1979, the Board had concluded that
librarians shared a community of interest with institutional
teachers. 	However, the more extensive record available to the
Board in 1990 revealed that such was not the case. 	The Board
concluded that "the tasks performed by the consultants and
institutional employees do not require common skills, working
conditions or job duties, " and further, that "(the job duties
performed by the two groups of employees are vastly different and
dictate that these groups be placed in different bargaining
units." Further, after examining the bargaining history of the
unit, the Board found that although five agreements had been
negotiated, there was evidence that "issues of most importance to
that it involved a request for recognition of a unit of
unrepresented employees, not a petition for severance. 	The unit
requested and approved by PERB was, indeed, a part of a larger
unit previously found appropriate in Decision No. 245-H.
However, no employee organization had received a majority in the
election held following that decision, and no exclusive
representative was in place. The requested unit was,
accordingly, subjected to a different test than is applicable in
a severance: 	the Board noted near the end of its decision that
"we find only that a separate unit is an appropriate unit."	.an
In State of California (Department of Personnel
Administration), supra, PERB Decision No. 773-S, the Board noted
that stability of the existing bargaining relationship has been
recognized as an important factor, citing Livermore Valley Joint
Unified School District (1981) PERB Decision No. 165, in which
the Board said that "a stable negotiating relationship will not
be lightly disturbed."
21

consultants had been regularly dropped from the negotiations in
favor of those issues important to the institutional employees. "
In marked contrast to State of California (Department of
Personnel Administration), supra, PERB Decision No. 794-S, the	supra,
Board's findings set forth when it established Unit 19 in 1979
are uncontradicted by the record here. Notwithstanding SPPS's
arguments to the contrary, I conclude that the record in this
case confirms the community of interest previously found to exist
by the Board when it created Unit 19. A significant number of
psychologists in state government perform tasks that are
functionally related to other classifications within Unit 19.
Perhaps the clearest example is the similarity in the work of
psychiatric social workers and clinical psychologists at the
state hospitals and developmental centers. 	Both occupations
require similar skills and work toward the common goal of
improving the mental well-being of patients or clients in common
settings . 	They also work in close proximity and have regular
interaction.
In arguing that psychologists lack a community of interest
with other classifications within Unit 19, SPPS emphasizes their
"different professional levels. " However, the Board in Unit
Determination for the State of California, supra, PERB Decision
No. 110-S, recognized there are differences among the
occupational groups in Unit 19, describing them as "varied" and 	"varied"
noting that some, "such as pharmacists or the hearing and vision
specialists, concentrate on a single area of expertise." 	The
22

Board also acknowledged that they work in "various" settings.
These occupational differences were weighed against the community
of interest found to exist notwithstanding those differences, and
balanced against the Board's stated concern over the
"proliferation" of units and fragmentation of employees.	fragmeritation 	The
record here confirms that psychologists do have certain
occupational characteristics which make them unique, or nearly
so, in Unit 19, such as possession of a doctoral degree and the
legal right to medical staff membership. 	However, to give undue
weight to such differences at this time would disregard the
balance among competing factors which was clearly intended by the
Board when it created Unit 19. Further, while it is indisputable
that a strong community of interest exists among the members of
the proposed unit because they are psychologists (or work within
the field), the Board has held that
[a] separate unit is not warranted merely
because a group of employees share a
community of interest among themselves, when
that homogeneous group forms only a part of a
larger essentially homogeneous group sharing
similar conditions of employment and job
functions.
23
(Sacramento City Unified School District (1977) EERB" Decision	EERB 20
No. 30.)
Moreover, creation of the unit proposed by SPPS would
result in a Unit 19 which would continue to be occupationally
diverse, and a new Unit 22, which, while occupationally fairly
20
prior to January 1, 1978, PERB was known as the	Prior
Educational Employment Relations Board.

homogenous, would include classifications with marked differences
in education, licensing requirements, and job duties. 	For
example, psychometrists are not required to have a graduate
degree or to be licensed, and they do not evaluate or devise
treatment plans for patients. In contrast, the clinical
psychologists in DDS and DMH facilities possess doctoral degrees,
are licensed, and devote considerable time to the evaluation and
treatment of patients. 	Another example of the diversity within
the proposed unit may be seen by looking at the consulting
psychologists who, unlike the clinical psychologists, work not
with the mentally ill or disabled, but with other care providers,
and work in the community rather than state institutions.
These examples not only serve to illustrate certain
"weaknesses" in the proposed unit, they also illustrate the
consequence of focusing too narrowly upon selected
characteristics of occupations at the expense of other factors;
the result is inevitably a fragmentation of employees and a
proliferation of units, consequences the Board sought to avoid
when it established Unit 19.
While psychologists have interests which distinguish them
from other occupations in Unit 19, one example being a desire (as
well as the legal right) to be admitted to the medical staffs of
state institutions, there is little or no evidence" these
"I do not find the instances cited by SPPS, such as the
refusal of AFSCME to approve more frequent SPOC meetings, to
substantiate their assertion that "the mind set of [ AFSCME]
leadership excludes consideration of Psychologists and their
needs . " 	(Petitioner's Written Argument, p. 33. ) Further,
24

different interests have led to dissension between the
psychologists and other unit members or created an unstable
bargaining situation. Indeed, five agreements were successfully
negotiated. Psychologists participated actively and
significantly in the governance of the Local through the SPOC,
and psychologists' interests were pursued at negotiations by
AFSCME . 	Although bargaining success was not achieved in areas of
special concern to psychologists, there is no evidence to suggest
this was due to AFSCME's failure to adequately assert the
interests of psychologists. Likewise, there is no evidence upon
which to conclude that success would have been achieved had
psychologists been in a less diverse unit. In sum, the
bargaining history of Unit 19 revealed in this case is similar to
that shown to have existed in State of California (Department of
Personnel Administration), supra, PERB Decision No. 773-S, in
which there were a series of successfully negotiated agreements
and no "evidence that the interests of the employees included in
the severance petition were trampled upon or ignored. " This
stable bargaining history provides no justification for the
splitting of Unit 19.
Finally, I conclude that if severance were granted, the
negotiation and administration of an additional agreement would
have a negative impact upon state personnel resources. 	While not
an untenable burden upon state government, it does militate
Dr. Lyon's failure to win approval for additional SPOC meetings
may well have been attributable to his request to have more than
one meeting approved in advance.
25

against granting the severance, especially in the absence of
countervailing factors.
The imprecision which is inherent in the process of
balancing the competing factors in section 3521 results in
various unit configurations which may be found appropriate. 	For
example, much of the evidence relied upon by SPPS to demonstrate
the appropriateness of the proposed new unit of psychologists
would also support the appropriateness of placing psychologists
in Unit 16 along with the psychiatrists with whom they have much
in common. " 	However, even if the units resulting from this
petition were deemed appropriate, severance would not be
warranted. 	The law requires SPPS to rebut the presumptive
appropriateness of Unit 19 and to demonstrate that the proposed
units are more appropriate. 	I conclude that the units which
would result from the severance are, at best, only as appropriate
as existing Unit 19, and further, that Unit 19 in its present
form is appropriate. Accordingly, SPPS has not met its burden of
proof. The petition should therefore be dismissed.
PROPOSED ORDER
Based upon the foregoing and the entire record in this case,
IT IS ORDERED that the severance petition filed in this case is
DISMISSED.
"Even if it were possible to configure units which are more
appropriate than Unit 19, PERB lacks authority to reconfigure a
petitioned-for unit. (State of California (Department of
Personnel Administration), supra, PERB Decision No. 773-S. )
Also, any reconfiguration which shifted classifications between
existing units would require the agreement of the respective
exclusive representatives.
26
!!1Qll

Pursuant to California Code of Regulations, title 8,
section 32305, this Proposed Decision and Order shall become
final unless a party files a statement of exceptions with the
Board itself at the headquarters office in Sacramento within 20
days of service of this Decision. In accordance with PERB
Regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any,
relied upon for such exceptions. 	(See Cal. Code of Regs . ,
tit. 8, sec. 32300. ) A document is considered "filed" when
actually received before the close of business (5:00 p.m. ) on the
last day set for filing ". 	or when sent by telegraph or
certified or Express United States mail, postmarked not later
than the last day set for filing 	(See Cal. Code of Regs. ,
tit. 8, sec. 32135; Code Civ. Proc., sec. 1013 shall apply. ) Any
statement of exceptions and supporting brief must be served
concurrently with its filing upon each party to this proceeding.
Proof of service shall accompany each copy served on a party or
filed with the Board itself. (See Cal. Code of Regs . , tit. 8,
secs. 32300, 32305 and 32140.)
Dated: July 2, 1992 Chale Fi	
eflc Cea	
lli	
tYQz
Charles F. Mcclamma
Hearing Officer
27