Unit Determination for Employees of the Regents of University of California (PERB A114HC)

STATE
	OF
	CALIFORNIAPUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
In
	the 	Matter
	of:
UNIT 	DETERMINATION
	FOR
EMPLOYEES
	OF 	THE 	REGENTS
	OF
THE
	UNIVERSITY
	OF
	CALIFORNIA
(EXCLUSIONARY
	PHASE).
-----------------
)
)
)	
Case
	No. 	SF-RR-1002-H
	et 	al.
PERB
	Order
	No. 	Ad-114c-H
September
	14,
	1982
)
)
)
)
Appearances:	
James
	N.
	Odle,
	Attorney,
	and
	Judith
	Droz
	Keyes,
Attorney 	(Corbett,
	Kane, 	Berk 	&
Barton)
	for 	the
	Regents
	of
	the
University 	of
	California;
	Glenn
	Rothner, 	Attorney 	(Reich,
	Adell
&	
Crost) 	for
	American
	Federation 	of
	State,
	County 	and
	Municipal
Employees,
	AFL-CIO;
	Philip
	E.
	Callis,
	Attorney
	(California
State
	Employees
	Association).
Before:
	Jaeger,
	Member;
	Gluck,
	Chairperson, 	Jensen
	and
	Tovar,
Members.
DECISION
	AND
	ORDER
On
	August 	4,
	1982
	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board)
	issued
	PERB
	Order 	No. 	Ad-114b-H.
	By
that
	Order
	the
	Board
	halted 	day-to-day 	hearings 	in
	this
	matter
pending
	further 	inquiries
	and
	investigations
	under
	the
direction
	of 	the
	director
	of
	representation.
	The 	Board
	also
provided
	that
	the
	parties
	and/or
	their 	representatives 	attend
	a
pre-hearing 	conference
	on 	August 	13,
	1982
	regarding
	further
procedural 	orders
	and
	steps 	to
	implement
	the 	necessary
investigations.
Prior 	to 	that 	conference,
	on 	August 	12, 	1982, 	the
	director
of 	representation 	issued 	the 	attached 	Pre-Hearing 	Notice 	and

order
	for
	Investigation,
	Production
	of
	Documents, 	and
	Hearing.
Among
	other 	things,
	that
	Or_der
	requires
	all
	parties
	to
	produce
declarations
	and
	documentary
	evidence
	pursuant 	to
	an
established
	time
	schedule
	regulating
	the
	investigation
	of
exclusionary 	claims.
	The
	August
	12
	Order
	also
	provides
	a
mechanism
	for 	the
	parties
	to
	make
	motions
	for
	protective 	orders
in 	the
	event
	there
	are
	concerns
	regarding
	employee
	privacy
interests
	or 	the 	circumstances
	governing 	the
	production 	(or
inspection) 	of
	documents.
On
	August 	23,
	1982
	the 	University
	filed
	an
	administrative
appeal 	of 	the
	August
	12
	Order,
	as
	well
	as
	a
	request 	for
	a
stay.
	The 	Board
	has 	concluded
	that
	the
	issues 	raised
	by
	the
University
	should
	have
	first
	been
	raised
	with 	opposing
	counsel
and
	with 	the
	director
	of 	representation
	before
	being
	presented
to
	this
	Board
	since
	by
	the
	terms
	of 	the
	August 	12 	Order 	a
protective
	order
	mechanism
	that
	would
	permit
	resolution 	of 	the
University's 	overall
	concerns
	exists.
	For
	this
	reason, 	the
requested 	stay
	and
	appeal 	are
	DENIED. 	However,
	given 	the
nature 	of 	the
	University's 	claims, 	the 	matter
	is
	hereby
referred 	to 	the 	Director 	of 	Representation 	for 	review 	and
clarification, 	if
	appropriate,
	and
	shall
	be
	treated
	as
	a
2

request
	for
	a
	protective
	order 	pursuant
	to
	the
	terms
	of
	the
August
	12
	Order.l
PER	
CURIAM
lNothing 	in
	this
	Order
	should
	be
	construed 	as
	a
determination
	by
	the
	Board
	that
	the
	University's
	appeal
involves 	the 	"mechanics
	of
	an
	election"
	and
	is
	therefore 	notproperly 	appealable 	pursuant 	to
	PERB
	Regulation
	32380.
	That
issue 	is
	not 	before 	the
	Board
	at 	this
	time
	since 	the 	matter
	hasbeen
	referred 	to 	the
	director
	of 	representation 	to
	allow
	forthe 	exhaustion 	of 	administrative
	remedies 	by 	the 	Board's
delegated 	representative.
3

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
In	
the 	Matter	
of:
UNIT
	DETERMINATION
	FOR EMPLOYEESOF
	THE
	REGENTS
	OF
	THE
	UNIVERSITY
OF
	CALIFORNIA
	(EXCLUSIONARY
PHASE).
)
)
)
)
)
)
__________________
)
)
C,
;~lU
Case
	No.
	SF-RR-1002-H,
et
	al.
PRE-HEARING
	NOTICE
	AND
ORDER
	FOR
	INVESTIGATION,
PRODUCTION
	OF
	DOCUMENTS,
AND	
HEARING.
August
	12,
	1982
PLEASE
	TAKE
	NOTICE
	that
	the 	following
	ORDER,
	pursuant
	to
PERB
	Decision
	No.
	Ad-ll4b-H
	(8/4/82),
	will
	hereafter
	govern
	the
procedural
	course
	of
	the 	exclusionary
	phase
	of
	this
	proceeding.
The
	five 	steps 	outlined
	below
	will
	be
	used
	to
	arrive
	at
exclusionary 	determinations.
	Timelines
	and
	deadlines 	for
submissions 	covering
	each
	step
	are
	reflected
	on
	the 	appendix
attached 	to
	this
	Pre-Hearing. Notice
	and
	Order.
l.
	The
	University 	of 	California 	will
	submit
	declarations
under
	penalty 	of
	perjury 	in
	support 	of
	each
	whole
	class
	and/or
individual
	employee
	exclusionary 	claim. 	Declarations
	must	
be
specific
	as 	to
	facts 	justifying
	the 	claim,
	and 	must 	be
	legally
sufficient
	to
	constitute
	the
	University's 	case-in-chief 	for 	the
purpose 	of 	proof
	and
	for 	cross-examination. 	Declarations 	about
these 	claims
	shall
	be 	accompanied 	by	
relevant
	documents,
	or,
alternatively,
	documents
	shall
	be 	made
	available
	for
inspection. 	(Declarations 	of 	authenticity
	may 	accompany
	the
documents 	or 	may 	be
	incorporated 	within 	the 	exclusionary 	claim
declarations.)

Relevant
	documents
	that
	must
	be
	produced,
	where
	available,
include 	the 	following:
	(a)
	organizational
	charts;
	(b)
	job
descriptions;
	(c)
	evaluations
	of
	the
	person(s)
	about
	whom
	the
claim
	is
	madei
	(d}
	personnel
	actions
	taken
	involving
	someone
other
	than
	the
	person(s} 	about
	whom
	the 	claim
	is
	made
	(e.g.,
evaluations, 	appraisals,
	warnings, 	reprimands,
	corrective
discipline, 	hiring, 	transfers,
	promotions,
	.wage
	increases,
	and
grievance 	determinations;)
	(e) 	employment 	and
	personnel
	policy
statements
	and
	guidelines	
by 	and/or 	about 	the 	person{s)
	for
ihom
	the
	claim
	is
	made,
	setting
	forth
	the
	functional
relationship
	of 	said
	person{s)
	to
	the
	employer
	in
	terms
	of
exclusionary
	criteria.
The
	Univ~rsity
	is
	invited
	to
	submit
	explanatory
	memoranda
providing
	an 	overview
	of
	the 	submitted
	materials. 	Service
	and
proof 	of 	service 	of 	the
	declarations,
	documents 	and
	related
memoranda
	shall
	be 	made 	on
	the
	PERB
	and 	on 	employee
organizations
	with
	an
	interest
	in 	the
	relevant
	proposed
	unit.
If
	the
	parties
	are
	unable
	to
	agree
	on
	terms, 	the
	PERB
	will
entertain
	motions 	for
	protective 	orders
	concerning 	employee
privacy
	and
	reasonable 	time, 	place
	and 	manner
	guidelines 	for
document
	production 	and/or
	inspection.
2.
	Employee
	orga.nizations
	will
	review 	the
	materials
submitted 	by 	the 	University
	and
	shall 	file
	with 	the
	PERB
	a
	list
of 	classifications
	and/or 	positions
	which
	the 	organization 	is
prepared 	to
	stipulate 	are 	excluded 	from
	the 	unit 	in
2

.--.	
question. 	Service
	and
	proof 	of
	service 	of
	the
	list
	on
interested
	parties
	are 	required.
	The
	PERB,
	at
	it.s
	discretion,
may
	schedule
	settlement
	conferences 	to
	narrow
	disputed
	issues.
3.
	Employee
	organizations
	shall
	submit
	any
	counter-
declarations
	and
	relevant
	documents,
	subject
	to 	the
	standards
described
	above
	applicable 	to
	the
	University,
	regarding
proposed
	exclusions
	not 	resolved
	by
	stipulation.
	Service
	and
proof
	of
	se~vice
	of 	counter-declarations
	and
	related
	documents
on
	interested 	parties
	are 	required.	
A	
failure
	to
	file
counter-declarations
	and
	supporting
	documents
	will
	be 	deemed 	a
waiver
	of 	opposition
	to 	the 	claim, 	unless,
	on
	the 	date
	employee
organization
	filings
	ar~
	required,
	the 	organization
	files
	its
opposition
	on
	the
	ground
	that
	a
	prima
	facie
	case
	has 	not 	been
stated
	by
	the
	University.
	Each
	claim
	opposed 	on
	this
	ground
must 	be
	supported
	by a
	statement
	identifying 	alleged
insufficiencies 	in
	the
	University's 	factual
	submission.
Service
	and
	proof 	of 	service	
of	
statements 	of
	insufficiency
	on
interested 	parties
	are 	required.
4.
	The
	PERB
	will
	conduct 	conferences 	to 	review
	the
contested 	claims
	and
	to
	arrive 	at
	settlements.
5. 	The
	PERB
	will
	examine
	the 	unresolved 	claims
	on
	the
basis
	of 	the
	totality
	of 	materials
	submitted
	by
	the
	parties
	to
determine 	whether 	a
	sufficient
	case 	has 	been
	presented 	for
transmittal 	to 	the
	Board
	itself
	for 	determination, 	or,
	whether
further 	investigation 	or 	formal 	hearing 	is 	required 	to 	resolve
disputed 	issues 	of 	fact. 
3

Notices
	of 	further 	investigation
	and/or
	hearing,
	where
necessary,
	will
	be
	sent
	to 	the
	parties,
	specifying
	the
	claims
upon 	which
	additional
	evidence
	shall
	be
	received.
	Thereafter,
the 	record
	pertaining
	to	
any	
unresolved 	claim
	shall
	be
transmitted
	directly
	to 	the
	Board
	itself
	for 	determination.
Dated: 	August
	12,
	1982
(~T
	E.
	CA.RAWAY-
i:rtr"ec
tor 	of
	Representation	
0
4
-

APPENDIX
(Case 	No.
	SF-RR-1002-H,
et
	al.
PRE-HEARING
	NOTICE
	AND
ORDER
	FOR
	INVESTIGATION,
PRODUCTION
	OF
	DOCUMENTS,
AND
	HEARING.
August
	12,
	1982
(
(
(
({
(
(
The
	process
	of
	developing 	the 	record
	in
	this
	proceeding
	will
	be
divided
	into
	three
	phases 	as 	follows:
LLNL
	Proposed
	Units:	
Phase
	I (1)	
Clerical
(2)	
Skilled 	Crafts
{5)	
Professional
Phase
	II	
- 	(10)	
Patient
	Care
(11)	
Professional
	Health 	Care
(12)	
Librarian
(14)	
Staff
	Administrative
Phase
	III
	- 	(6)	
Clerical
(7)	
Skilled 	Crafts
(8)	
Technical
(9)	
Service
(13)	
Non-Academic-Senate
	Academic
and
	Allied
General
	timelines
	and 	due
	dates
	for 	the 	various 	required
submissions
	will
	be
	as
	follows 	unless
	modified 	pursuant
	to
	a
subsequent
	order:
Phase
	I	
Phase
	II	
Phase
	III
Step
	1 	Due
	9/27/82	
Due
	11/1/82	
Due
	12/13/82
Step	
2	
Due
	10/11/82	
Due
	11/19/82	
Due
	1/7/83
Step	
3 	Due
	11/5/82	
Due
	12/17/82	
Due
	2/4/83
Step
	4	
11/8/82-11/19/82 	l/3/83-1/14/83 	2/7/83-2/18/83
Step
	5	
ll/22/82-12/17/82 	l/17/83-2/4/83 	2/21/83-3/11/83
5