Regents of the University of California (California Nurses Association, et al.) (PERB A293H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA NURSES ASSOCIATION,
UNIVERSITY PROFESSIONAL AND
TECHNICAL EMPLOYEES, CWA, . ;
LOCAL 9119, Case No. SF-CE-452-H
Interlocutory Appeal
Charging Parties,
PERB Order No. Ad-293-H
Vv.
February 4, 1999
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,

Respondent.

eee ee eae ee

Appearances: Eggleston, Siegel & Lewitter by James E. Eggleston
and Noreen A. Farrell, Attorneys, for California Nurses
Association, University Professional and Technical Employees,
CWA, Local 9119; Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP by
Douglas H. Barton and Carole R. Rossi, Attorneys, for The Regents
of the University of California.
Before Caffrey, Chairman; Dyer and Amador, Members.
DECISION

AMADOR, Member: This case is before the Public Employment
Relations Board (PERB or Board) on an interlocutory appeal filed
by the California Nurses Association, University Professional and
Technical Employees, CWA, Local 9119 (Charging Parties) and
joined by the PERB administrative law judge (ALJ) concerning his
February 24, 1998 order (attached) denying Charging Parties’

motion to amend the complaint and his May 4, 1998 order

(attached) denying Charging Parties’ request for reconsideration

and
	granting
	their
	request
	for
	certification
	of 	the
	interlocutory
appeal.
1
After
	a
	review 	of
	the
	entire
	record
	in
	this
	case
2 ,
	the
	Board
finds 	the
	ALJ's 	February
	24,
	1998
	and
	May
	4,
	1998
	orders
	to
	be
proper
	and
	affirms
	them. 
DISCUSSION
Essentially,
	Charging
	Parties'
	interlocutory
	appeal
	restates
the
	arguments
	which were
	presented
	to
	the
	ALJ
	in
	the
	original
motion
	to
	amend
	the
	complaint
	in
	this
	case,
	and
	in
	the
	request 	to
reconsider 	the 	denial
	of
	that
	motion and
	certify
	the
	matter
	for
interlocutory
	appeal
	to
	the
	Board.
	The 	ALJ
	thoroughly 	considered
those
	arguments 	and
	reached
	findings
	and
	conclusions 	of
	law
	which
are 	free
	of
	prejudicial 	error.
	The
	Board
	finds
	it
	unnecessary
	to
offer
	extensive
	augmentation 	of 	those 	findings
	and
	conclusions,
and
	adopts
	them
	as 	the 	decision
	of
	the
	Board
	itself.
Among
	Charging
	Parties'
	arguments
	is
	the
	assertion 	that
Senate
	Bill
	1350
	(Chapter
	927
	of
	1997)
	cannot
	be
	relied
	upon
	to
authorize 	the 	lawful
	creation
	of 	the
	USHC
	as
	a
	private
corporation 	not 	covered by
	the
	Higher 	Education
	Employer-Employee
Relations
	Act
	(HEERA)
3
because
	the 	University 	of
	California
(University)
	is
	not 	authorized 	to 	take
	that 	action 	pursuant 	to
1The
	underlying
	unfair 	practice
	charge 	has 	been placed
	in
abeyance 	pending 	the 	Board's 	review 	of
	this 	interlocutory appeal.
2
Including 	the 	brief 	filed
	by
	the
	UCSF-Stanford 	Health 	Care(USHC).
3
HEERA
	is 	codified 	at
	Government 	Code
	section
	3560
	et 	seq.Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the
	Government 	Code.
2

Article
	IX,
	section
	9
	of 	the
	California 	Constitution.
	In
	effect,
Charging
	Parties
	ask
	the
	Board
	to
	conclude
	that
	Senate
	Bill
	1350
is
	constitutionally
	unenforceable.
PERB
	is
	an
	administrative
	agency,
	established 	in
	Government
Code
	section
	3541,
	and
	expressly
	charged with
	the
	authority 	to
administer
	the
	HEERA
	(HEERA
	sec.
	3563).
	Article
	III,
	section
	3.5
of
	the 	California 	Constitution
	states:
An
	administrative
	agency,
	including
	an
administrative
	agency
	created
	by
	the
Constitution 	or
	an
	initiative
	statute,
	has
	no
power:
(a)
	To
	declare
	a
	statute
	unenforceable,
	orrefuse
	to
	enforce
	a
	statute,
	on
	the
	basis
	of
it
	being
	unconstitutional 	unless
	an
	appellate
court
	has
	made
	a
	determination
	that
	such
statute
	is
	unconstitutional;
(b) 	To
	declare
	a
	statute
	unconstitutional;
(c) 	To
	declare
	a
	statute
	unenforceable,
	or
to 	refuse
	to
	enforce
	a
	statute
	on
	the
	basis
that
	federal
	law
	or 	federal 	regulations
prohibit
	the
	enforcement 	of 	such
	statute
unless
	an
	appellate
	court
	has
	made
	a
determination
	that
	the
	enforcement
	of
	such
statute 	is
	prohibited
	by
	federal
	law
	orfederal 	regulations.
There 	has 	been
	no
	appellate 	court 	determination 	regarding
the 	issue
	of 	the
	constitutionality
	of 	the 	authority 	granted 	the
University
	by
	Senate
	Bill
	1350
	to 	create
	USHC
	as
	a
	private
corporation. 	Prior 	to
	such
	a
	determination,
	PERB
	has
	no
	power,
pursuant 	to 	Article
	III,
	section 	3.5 	to
	make
	the 	finding 	Charging
Parties
	urge
	it
	to
	make. 	(San
	Ramon
	Valley Unified 	School
District
	(1982) 	PERB
	Decision
	No. 	254
	at
	p.
	7; 	The
	Regents
	of 	the
University 	of 	California
	(1998) 	PERB
	Decision
	No. 	1301-H
	at
3

pp.
	18-19.)
	Accordingly,
	the
	Board
	rejects
	the
	constitutional
arguments
	offered
	by
	Charging
	Parties.
ORDER
The
	Board
	hereby
	AFFIRMS
	the
	ALJ's 	Order
	Denying
	Motion
	to
Amehd
	Complaint 	and 	Order
	Denying
	Charging
	Parties'
	Request
	for.
'Reconsideration
	and
	Granting
	Charging
	Parties'
	Request
	for
·certification
	of
	Interlocutory
	Appeal
	in
	Case
	No. 	SF,-CE-452-H.
Chairman
	Caffrey
	and
	Member
	Dyer
	joined
	in 	this
	Decision.
4

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOA."Q.D
CALIFORNIA
	NURSES
	ASSOCIATION,
ET
	AL,
Charging
	Party,
V.
THE
	REGENTS
	OF 	THE
	UNIVERSITY
OF
	CALIFORNIA,
Respondent.
)
)
)
)
)
)
) .
)
)
)
)
___________________
)
Unfair
	Practice
Case
	No.
	SF-CE-452-H
ORDER
	DENYING MOTION
	TO
	AMEND
	COMPLAINT
Introduction
The
	California
	Nurses
	Association
	and
	the 	University
Technical
	and
	Professional
	Employees,
	Local
	9119,
	(charging
parties)
	moved
	to
	amend
	the
	complaint
	in
	the 	above-captioned
matter
	on
	November
	3,
	1997. 	Charging
	parties
	contend
	here
	that
UCSF-Stanford
	Health
	Care
	(USHC)
	and
	the 	University of
	California
(UC),
	acting 	in
	concert,
	have
	unilaterally 	transferred
	work
	out
of 	the 	bargaining
	units 	at
	UCSF
	Medical
	Center 	pursuant
	to
	a
scheme .of
	purportedly 	contracting
	with an 	independent
	entity
(USHC)
	to
	perform the
	work.
	In 	fact,
	USHC
	is
	only nominally
separate
	and
	the
	work
	will
	be 	performed
	at
	the
	same
	locations,
	by
the
	same
	personnel, 	under 	the
	same
	supervision,
	and
	subject 	to
terms 	and 	conditions
	jointly
	determined 	and
	unilaterally
	imposed
by
	UC
	and
	USHC.
Charging
	parties 	allege 	therefore 	in 	their
	motion
	to
	amend
the 	complaint 	that
	UC
	and
	USHC
	constitute
	a
	joint
	employer
	or
	a
single 	employer 	for 	purposes 	of 	labor 	relations.
	Charging

fI
parties
	also 	allege 	in
	their
	motion
	that
	UC
	and
	USHC
	have
bypassed
	the 	exclusive
	representatives,
	dealt
	directly
	with
employees,
	and
	unilaterally
	imposed
	terms
	and
	conditions
	of
employment
	on
	employees.
	In
	this
	regard, 	charging
	parties 	allege
that
	employees 	have
	been
	offered
	USHC
	employment
	under 	terms
negotiated
	by
	UC
	and
	USHC
	on
	condition
	that
	they
	resign
	form
	UC~
thereby 	giving	
up	
rights
	and
	benefits
	accrued 	as
	a
	result
	of
	UC
employment,
	or
	face 	job
	loss.
UC
	and
	USHC
	opposed
	the
	motion
	on 	December
	2,
	1997,
advancing
	a 	number
	of
	arguments
	that 	will
	be
	addressed
	herein, 	as
necessary. 	After
	further 	briefing
	by
	the
	parties,
	the
	motion
	was
submitted
	for 	ruling
	on
	January
	16, 	1998.
Summary
	of
	Motion
To
	support 	the
	allegations 	in
	their
	motion,
	charging
	parties
first
	point 	to 	excerpts
	from 	two
	UC
	Regent
	meetings.
	The
	first
concerns
	a
	discussion 	held
	at
	a
	June 	20, 	1996,
	meeting 	of
	the
Committees 	on
	Health Services
	and 	Finance.
	The
	excerpt
	states:
NEWCO
	will
	be
	a
	corporation 	of 	equals 	with
the
	Board
	of
	Regents 	and
	the 	Trustee 	[sic] 	of
Stanford 	sharing 	ultimate 	control
....
	The
Regents 	and
	Trustees 	of 	Stanford University
will
	share
	ownership 	and
	control 	of
	NEWCO
..
. 	.
	[A]
	Professional 	Services
	Agreement 	would
provide
	that
	NEWCO
	would pay
	for 	the
professional 	services 	of 	faculty
	and 	house
staff 	at
	UCSF
....
	The
	clinical
	programs
	of
the
	new
	entity 	are
	expected
	to
	be
	alignedwith
	all
	levels 	of 	educational
	programs
	at
each
	university.
1
1
"NEWCO"
	was
	the 	predecessor 	of
	USHC.
2

The
	second 	concerns
	a
	July
	19, 	1996,
	meeting
	of 	the
Committees
	on
	Health
	Services
	and
	Finance.
	The
	minutes
	state:
The
	proposed 	board
	would
	have
	sufficient
linkage
	to 	the
	Regents
	and
	the 	Trustees
	to
provide
	accountability
	while
	creating
	an
adequate
	independence
	from
	the
	parent
organizations
	so
	that
	governance
	is
	not
exclusively vested
	with
	The
	Regents 	and
	theTrustees.
In 	addition,
	charging
	parties
	allege
	that
	UC
	retained
influence
	and
	control
	over
	USHC
	labor
	relations
	by
	conditioning
its
	authorization
	of
	the 	Consolidation
	Agreement 	on
	USHC
acceptance 	of
	certain
	"employment
	requirements" 	with 	regard
	to
affected
	UC
	employees.
	As
	evidence
	to
	support
	this
	allegation,
charging
	parties 	cite
	two
	letters
	from
	Gayle
	Cieszkiewicz,
associate 	director
	of
	UC
	labor 	relations, 	to
	James
	Eggleston,
counsel
	for
	charging
	parties.
The
	first 	letter,
	dated
	June
	14, 	1996,
	states:
Please 	consider
	this
	correspondence
	the
University's
	formal
	notice
	of
	its
	willingness
to
	work
	with 	the
	unions
	exclusively
representing
	employees
	who
	will
	be
	affected
by
	the 	formation 	of 	the
	new
	enterprise 	to
determine 	those
	employment
	requirements 	the
University 	will
	make
	of 	the
	new
	enterprise,as
	it
	pertains 	to 	the
	initial
	employment
	of
individuals 	currently
	employed by UCSF.
The
	second
	letter,
	dated
	June 	26, 	1996,
	states:
The
	University
	wants
	to 	ensure
	that
	UCSF
employees, 	and
	the
	Regents,
	know 	whatemployment
	requirements
	will
	be
	placed
	on
	the
new
	enterprise
....
	If
	we 	do
	not 	hear
	from
you
	...
	we
	will
	determine 	the
	initial
minimum employment 	terms 	the 	University 	willrequire 	the
	new
	entity 	to 	offer 	without 	the
input 	of 	the 	unions 	you
	represent.
3

Another
	means
	by
	which
	UC
	determined
	future
	employment
conditions,
	charging
	parties
	allege,
	is
	reflected 	in
	the 	adoption
of
	downsizing
	projections
	and
	plans.
	Because
	UC
	actually
formulated
	the
	structure
	of
	USHC
	management
	of
	UCSF
	Medical
Center, 	charging
	parties
	contend,
	UC
	"literally
	dictated
	the
employment
	areas
	targeted 	for 	lay-offs
	under
	USHC
	'cost-cutting'
measures."
	To
	support
	this
	contention,
	charging
	parties
	cite
	an
excerpt
	from
	the
	minutes
	of
	a
	June
	20, 	1996,
	meeting
	of
	the
Committees 	on
	Health
	Services
	and
	Finance.
The
	planning 	process
	has
	identified 	certain
opportunities 	for 	cost
	savings 	through
consolidation 	of
	services,
	particularly 	in
support
	areas
	such
	as 	finance,
	human
resources, 	information
	systems,
	and
	material
management. 	A
single 	administrative
structure
	would
	result
	in 	substantial
reductions
	in
	executive
	and
	management
positions.
By
	June,
	1997,
	the 	determination 	of
	"initial
	minimum
employment
	terms"
	was
	complete, 	according
	to
	charging
	parties'
motion.
	As
	described
	by
	the
	minutes 	of
	a
	September 	17, 	1997,
meeting
	of 	the
	Committee 	on
	Health
	services, 	the 	Consolidation
Agreement
	provides:
USHC
	shall
	be
	solely 	responsible 	for 	hiring,supervising,
	setting
	terms 	and
	conditions 	of
employment,
	disciplining
	and
	terminating
	all
USHC
	employees
	subject 	to
	terms 	and
conditions
	imposed by
	the
	Regents 	and
Stanford Trustees
	on
	USHC.
The
	agreement
	also 	provides
	that
	USHC
	may
	not 	change
	the
employment 	agreement 	without 	written 	consent 	of 	the
	UC
	Regents.
Charging
	parties 	next 	allege 	that 	the
	Agreement 	Concerning
Employment 	Commitments, 	approved 	by	
UC,
	imposes 	upon
	USHC
4

specific
	terms
	regarding
	hiring, 	salary,
	seniority,
	and
	benefits
of
	UCSF
	employees
	who
	are
	affected
	by
	the
	consolidation.
	The
agreement
	also
	provides
	that
	USHC
	will
	offer
	employment
	to
	95
percent
	of
	affected
	UC
	employees.
	The
	offer
	of
	employment
includes,
	among
	other 	things,
	base
	wages
	equal
	to
	wages
	at
	UC,
recognition
	of 	length
	of
	service, 	transfer
	of
	vacation
	and
	sick
leave,
	and
	health
	and
	dental
	benefits.
	The
	offer
	of
	employment
and
	all
	benefits
	was
	conditioned
	on
	resignation
	from
	UC
employment.
According
	to
	charging
	parties,
	another
	indication
	of
	UC
control
	of
	employment
	matters
	is
	reflected 	in
	a
	June 	19, 	1997,
Regents
	report 	that 	indicates
	UCSF,
	UC
	Office 	of 	the 	President
(UCOP),
	and
	USHC
	worked
	cooperatively
	in
	a
	variety
	of
	workgroups
over
	employment
	matters.
	The
	workgroups
	addressed,
	among
	other
topics, 	leased
	employee
	supervision,
	benefits
	counselling,
	notice
of 	comparison 	of
	employee
	benefits, 	notice 	to
	employees
	who
	will
be
	offered
	USHC
	employment,
	notice
	of
	layoff,
	etc.
In 	addition,
	charging
	parties
	contend 	an 	attachment
	to 	the
same
	report,
	"Workgroup
	Assumptions, 	UCSF/Stanford
	Healthcare
Merger,
11
	outlines
	planned
	tasks 	that 	further 	strengthen
	UC's
control 	over 	terms 	and
	conditions 	of
	employment
	offered
	UCSF
employees 	by
	USHC.
	Examples
	include 	the
	need
	for
	UCSF
	to
	propose
specific
	parameters 	for 	leased
	employees 	and
	personnel 	policy
exceptions.
	The 	document
	recognizes 	that
	UCOP
	will
	have
	the 	lead
on
	labor 	relations 	negotiations 	because
	UCSF
	employees
	are
included 	in
	systemwide 	bargaining 	units. 	It
	also 	recognizes 	that
5

UCSF
	is
	authorized 	to
	determine
	compensation
	components
	for
employees
	below
	the
	senior
	management
	level,
	and
	to
	endorse
proposals
	for 	negotiating
	with 	unionized
	employees.
	The
	need
	to
review 	and 	approve
	proposals
	related
	to
	benefits,
	retirement, 	or
leasing
	is
	reflected 	in
	the
	list
	of
	tasks.
	The
	last
	enumerated.
,task
	is
	to 	assess 	financial
	liability
	for
	human
	resources
·decisions
	made
	by
	USHC.
Charging
	parties 	assert 	that
	the
	University
	has
	"practically
dictated"
	the
	employees
	USHC
	will 	hire,
	their
	terms
	of
employment,
	and
	the 	process
	by
	which
	the
	transition will
	occur.
In
	sum,
	the
	charging
	parties
	allege:
The
	University
	[and]
	USHC
	have
	"successfully
harmonized 	and
	divided
	theirresponsibilities"
	over 	the
	employees
	who
	will
staff
	UCSF
	Medical
	Center.
	(citation
omitted)
	Not
	only has 	the 	University
determined
	and/or
	retained 	influence
	and
control
	over 	the
	wages
	and
	benefits
	of
	USHC
employees,
	their 	seniority status,
	their
leasing
	eligibility,
	and
	vacation accrual,the 	University
	has
	retained
	the
	right 	to
maintain
	certain
	USHC
	employees
	in
	formal
	UC
employment
	status,
	as 	leased
	employees.
Representing 	over
	25%
	of 	the
	workforce
	of
USHC,
	these 	leased
	employees
	will
	have
	a
profound
	effect
	on
	USHC
	management
	of
	its
"direct"
	employees.
	USHC
	will
	provide
	day-
to-day
	direction
	of 	leased
	employees,
	along
with
	UC
	managers 	who
	will 	retain
	the 	ultimate
right
	and
	responsibility 	to 	direct
	and
supervise 	the
	employees.
Under a
	separate 	theory, 	charging
	parties 	allege 	that
	UC
	and
USHC
	have
	unilaterally
	imposed working
	conditions
	on 	employees,
coerced 	employees, 	and
	dealt 	directly
	with 	employees 	while
bypassing 	exclusive 	representatives.
	Charging
	parties 	allege
that
	employees 	have 	been 	offered
	USHC
	employment 	under 	terms
6

dictated
	by
	UC
	and
	USHC
	on
	condition
	that
	they
	resign
	from
	UC,
thereby 	giving
	up
	rights
	and
	benefits
	accrued 	as
	a
	result
	of
	UC
employment.
	Charging
	parties
	allege 	that
	UC
	and
	USHC
	have
bypassed
	the 	exclusive
	representatives 	in
	this
	regard
	and
threatened
	employees
	with
	job
	loss
	and
	forfeiture
	of
	future
,benefits
	if
	they 	did
	not 	accept 	conditions
	offered
	by
	UC
	and
USHC.
Joint
	Employer
	Allegation
The
	test
	to
	determine
	joint
	employer
	status
	is
	as
	follows:
"where 	two
	or
	more
	employers
	exert 	significant
	control
	over
	the
same
	employees
	--
	where 	from
	the
	evidence
	it
	can be
	shown
	that
they
	share 	or
	co-determine
	those 	matters
	governing
	essential
terms 	and
	conditions 	of
	employment
	--
	they
	constitute
	joint
employers." 	(United
	Public
	E111ployees
	v. 	Public
	Employment
Relations
	Board
	(1989) 	213
	Cal.App.3d
	1119,
	1128 	[262
	Cal.Rptr.
158]
	(United
	Public
	Employees);
	citing
	NLRB
	v. 	Browning-Ferris
Industries, 	Inc.
	(3rd
	Cir.
	1982) 	691
	F.2d
	117,
	124 	[111
	LRRM
2748] 	(Browning
	Ferris 	Industries);
	Turlock 	School
	District
(1977)
	.EERB
	Order
	No
. 	.AD-18,
	at
	pp. 	16-17
	(Turlock).)
Charging
	parties 	rely
	here 	primarily
	on
	United 	Public
Employees.
	In 	that
	case, 	the 	court
	found
	the 	City 	of
	San
Francisco 	and
	the
	San
	Francisco
	Community
	College
	District
constituted
	a
	joint
	employer.
	The
	court
	found
	that
	the
applicable 	statutory
	schemes
	could-be 	harmonized
	to
	support 	the
conclusion 	that 	the 	City 	and
	the 	District
	were
	joint
	employers.
The
	court 	also
	found
	that 	the 	District,
	while 	using 	the 	City's
7

civil
	service
	system,
	hired
	and
	fired
	employees,
	disciplined
them,
	determined
	their
	duties,
	set
	salaries
	and
	administered
benefits.
In
	this
	case, 	the
	statutory
	schemes
	cannot 	be 	harmonized.
On
	October
	12,
	1997,
	Senate
	Bill
	1350 	was
	enacted
	into
	law,
adding 	Chapter
	6,
	commencing
	with
	section
	101860,
	to 	Part
	4
	of
Division
	101
	of
	the
	Health
	and
	Safety
	Code,
	relating
	to 	health
care.
	Legislative 	history
	shows
	that
	SB
	1350,
	although
	written
in
	general
	terms,
	was
	enacted
	in
	response
	to
	the
	merger
	between
UCSF
	and
	Stanford 	University Health
	Care.
	Among
	other 	things,
	it
addresses
	open
	meeting
	and
	record 	disclosure
	requirements
	as
	they
relate 	to
	USHC.
Section
	101860,
	provides
	that
	if
	any
	state
	agency,
	including
a
	constitutional
	corporation,
	transfers
	to
	a
	"private
corporation
11
	assets 	for
	the 	operation
	of
	a
	hospital
	by
	that
corporation
	and
	the 	value 	of
	the 	assets
	is
	not
	less
	than
	fifty
million 	dollars,
	the 	corporation
	shall
	be
	subject 	to
	the
provisions 	of
	this
	chapter. 	Further, 	section
	101880
	expressly
exempts
	USHC
	from
	coverage 	by
	the
	Government 	Code.
	It
	provides
that
	"a
	corporation 	subject 	to
	this
	chapter
	shall
	continue
	to
	be
private, 	notwithstanding
	this
	chapter,
	and
	in
	any
	event,
	shall
not 	be
	subject 	to 	the 	provisions 	of 	the
	Government 	Code
	or 	the
Education
	Code made
	applicable 	to
	any
	public
	agency,
	or
	any
public 	or 	constitutional 	corporation, 	generally, 	or
collectively."
8

Thus,
	USHC
	is
	considered
	a
	private
	entity
	under
	SB
	1350
	and
expressly
	excluded
	from
	coverage 	under
	Government 	Code
provisions, 	including
	HEERA.
	Plainly,
	the
	statutory
	schemes
	that
govern
	UC
	and
	USHC
	cannot
	be 	harmonized.
In 	addition,
	charging
	parties'
	factual
	allegations
	do
	not
establish
	a
	prima
	facie
	case
	that
	UC
	and
	USHC
	constitute
	a
	joint
employer. 	Charging
	parties'
	factual 	allegations
	establish
	only
that
	UC
	was
	involved
	in 	effectuating
	the
	transition
	of 	operations
to
	USHC.
	It
	is
	not
	readily
	apparent
	from
	the
	documents
	attached
to 	the
	motion
	to
	amend
	and
	those
	relied
	on
	by
	UC
	and
	USHC
	that
	UC
retains
	the 	kind 	of
	significant
	control 	required
	to
	show
	joint
employer
	status.
For
	example,
	charging
	parties
	allege 	that
	UC
	retained
influence
	and
	control
	over
	labor 	relations
	of
	USHC
	by
conditioning
	its
	acceptance 	of 	the 	Consolidation
Agreement 	on
USHC
	acceptance 	of
	UC
	employment
	requirements 	with 	regard
	to
affected
	employees.
	However,
	letters
	from
	Cieszkiewicz
	to
Eggleston
	refer
	only
	to 	establishment 	of
	"initial"
	terms 	and
conditions 	of
	employment. 	And
	the
	Agreement
	Concerning
Employment 	Commitments
	appears
	to
	provide 	only
	for
	minimum
	terms
in
	the
	initial
	offers
	of
	employment:
[I]n 	order 	to
	minimize
	the
	effects
	of 	the
Transfer
	upon 	employees
	at
	UC
	and
	Stanford,
UC
	and 	Stanford
	have 	agreed
	that
	one
condition 	to 	the 	Transfer 	shall
	be 	USHC's
agreement
	to 	offer
	employment
	to 	at 	least
	95%
of
	all
	employees
	affected
	by
	the 	Transfer
	at
UCSF
	and Stanford 	("Affected 	Employees"), 	and
to 	include 	in 	said 	offers 	certain
minimum
terms 	and 	conditions.
9

It
	is
	true,
	as
	charging
	parties
	allege, 	that
	the
	minimum
	terms
and
	conditions 	of
	employment
	set
	by
	this
	agreement
	may
	not
	be
changed
	without
	UC
	concurrence.
	But
	that
	does
	not
	detract
	from
the
	fact 	that
	the 	conditions
	therein
	appear
	to
	have
	been
established
	as
	a 	minimum
	starting
	point 	for
	employment
	at
	USHC
	to
accomplish
	the
	transition.
·
In
	this
	connection,
	the
	final
	Consolidation
Agreement
between
	UC,
	UCSF,
	Stanford,
	and
	Stanford
	Health
	Services,
	section
4.4, 	provides
	that
4.4 	Personnel 	of
	USHC.
	The
	Parties
	agree
that,
	although
	USHC
	is
	obligated 	to
	comply
with
	the
	terms
	of
	the
	Agreement
	Regarding
Employment
	Conditions,
	USHC
	shall
	nonetheless
be
	solely
	responsible 	for 	directing,supervising
	and
	setting
	the
	terms 	and
conditions 	of
	employment
	of
	all
	USHC
employees,
	including, 	without
	limitation,
	all
job
	classifications,
	compensation,
	all
vacation
	pay,
	sick 	leave, 	retirement
benefits, 	social 	security
	contributions,
health,
	life
	or
	disability
	insurance,
	and any
other
	employee
	benefits.
Based 	on
	the 	foregoing,
	it
	does
	not 	appear
	that
	UC
	has
	retained
significant 	control
	over 	terms 	and
	conditions 	of
	employment.
With
	respect 	to
	employees
	leased
	by
	UC
	to
	USHC,
	the
Agreement
	for 	Services 	provides:
UC
	shall
	have
	ultimate 	responsibility 	for 	the
direction
	and
	supervision 	of
	all
	leased
	UC
employees.
	A
UC
	manager
	shall
	be
	identifiedfor
	each 	leased
	UC
	employee, 	and
	shall
	have
full 	authority 	to 	direct
	and 	counsel
	that
employee.
	USHC
	shall
	have
	the 	right 	toprovide 	direction 	subject 	to
	UC's
	ultirrate
responsibility
	as
	identified 	in 	herein.
Among
	other 	things, 	the
	Agreement
	for 	Services 	also 	provides
that
	UC
	will 	continue 	to 	be 	the 	employer 	of 	the 	leased 	employees
10

as 	long
	as
	they 	provide
	services
	to
	USHC.
	UC
	will
	be
	responsible
for
	administrative
	employment
	matters
	such
	as
	payment
	of
compensation 	and
	benefits,
	withholding
	taxes,
	etc.
	If
	services
are
	no
	longer
	required
	by
	USHC,
	UC
	policies 	will
	apply
	in
	the
event
	of
	a
	layoff. 	Significantly,
	the
	agreement
	also
	states:
"Nothing
	in
	this
	agreement
	is
	intended,
	and
	nothing
	herein
	shall
be
	construed,
	to 	create
	an 	employer/employee
	relationship
	between
the
	leased
	UC
	employees 	and
	USHC."
	Therefore,
	the
	arrangement
regarding
	leased
	employees 	does
	not 	suggest
	the 	kind 	of 	control
needed
	to
	show
	joint
	employer
	status.
As
	further
	evidence 	of
	joint
	employer
	status,
	charging
parties
	allege 	that
	UC
	dictated
	the
	employment
	areas 	targeted 	for
layoffs.
	To
	support
	this 	allegation,
	charging
	parties 	cite
	an
excerpt
	from
	the
	minutes
	of
	a
	June
	20, 	1996,
	meeting
	of 	the
Health 	Services
	Committee 	and
	the
	Finance
	Committee
	indicating
that 	cost
	savings
	may
	be 	achieved 	through
	consolidation
	of
services,
	and
	a
	single 	administrative 	structure
	would
	result 	in
substantial
	reductions 	in
	executive
	and
management
	positions.
However,
	this
	excerpt
	was 	made
	during 	an
	informal 	question
and 	answer
	session 	to
	review 	concerns 	expressed by
	members
	of 	the
public,
	UC
	Regents, 	and
	students 	before
	a
	final 	decision
	on
	the
merger
	was
	reached.
	Significantly, 	the 	excerpt
	relied
	on
	by
charging
	parties 	also 	states 	that
	the 	exact
	number
	of 	positions
available 	will 	not
	be
	identified 	"until
	NEWCO
	defines
	its
staffing 	plan."
11

Further,
	UC
	points
	out
	that
	an 	item
	for
	discussion
	at
	a
September 	10, 	1997,
	meeting
	of
	the
	Committee 	on
	Health 	Services
indicates
	that
	USHC
	informed
	UC
	that
	"its
	[USHC's]
	employment
needs
	are
	such
	that
	it
	anticipates
	being
	able
	to
	make
	offers
	of
employment
	to
	all
	but
	28
	employees
	employed
	by
	UCSF
	and
-[Stanford],
	10
	of
	whom
	are 	anticipated
	to
	be
	from
	UCSF.
	These
·employees
	could
	be
	laid
	off
	if
	they
	are
	not 	otherwise
	placed."
Thus,
	it
	does
	not 	appear
	that
	UC
	has
	retained
	significant
control
	over
	the
	staffing
	plan.
	Rather,
	it
	appears
	that
	USHC
took
	the 	lead
	in
	determining
	initial
	employment
	needs
	and
	the
staffing
	plan.
Nor
	is
	the
	composition
	of
	USHC's
	Board
	of
	Directors
	or
	UC's
membership
	in
	USHC
	indicative
	of 	the 	control 	necessary
	to
establish
	a
	prima
	facie
	case 	of
	joint
	employer
	status.
	After
establishment 	of 	the
	initial
	Board
	of
	Directors, 	the
	Bylaws
provide
	that
	subsequent 	boards
	shall 	consist
	of 	seventeen
members,
	only
	six
	of
	which
	are 	of
	UC
	origin.
Based 	on
	the
	foregoing,
	it
	is
	concluded
	that
	charging
parties
	have
	not
	stated
	a
	prima
	facie
	case 	under
	the
	test
	adopted
in
	United 	Public
	Employees.
In 	addition, 	applicable 	case
	law
	argues
	against 	granting 	the
motion
	to
	amend 	on 	a
	joint
	employer
	theory.
	As 	a
	private
nonprofit 	corporation,
	USHC
	falls
	under 	the
	jurisdiction
	of 	the
National 	Labor
	Relations
	Act 	(NLRA), 	even 	though 	some
interrelationship 	with
	UC
	may
	exist.
	(Management
	Training
Corporation
	(1995) 	317
	NLRB
	1355, 	1358, 	fn.
	16 	[149
	LRRM
	1313] .)
12

As
	the
	NLRB
	stated,
	"we
	will
	not
	employ
	a
	joint
	employer
	analysis
to
	determine
	jurisdiction.
	Whether
	the
	private
	employer and
	the
exempt
	entity
	are
	joint
	employers
	is
	irrelevant.
	The
	fact 	that
we
	have
	no
	jurisdiction
	over
	governmental
	entities
	and
	thus
cannot
	compel 	them
	to
	sit
	at
	the 	bargaining
	table
	does
	not
,destroy 	the
	ability
	of
	private
	employers
	to
	engage
	in 	effective
bargaining 	over
	terms
	of
	employment
	within
	their
	control."
Management
	Training
	Corp.
	at
	p.
	1358.
	fn.
	16.)
	In 	reaching
	this
conclusion,
	the
	NLRB
	overruled
	prior
	cases 	holding
	that
	it
	would
not
	effectuate
	the
	policies
	of 	the
	NLRA
	to
	assert
	jurisdiction
over
	a
	private
	employer
	because
	the
	state
	is
	a
	joint
	employer.
(Id.)
	Thus,
	USHC
	is
	subject 	to
	NLRB
	jurisdiction.
Also
	relevant
	here
	is
	PERB
	case
	law
	holding
	that
	PERB
	will
not
	exercise
	jurisdiction
	over
	entities
	that
	do
	not
	fall
	within
the
	definition
	of
	employer
	under
	HEERA.
	Because
	USHC
	is
	a
private
	entity 	that
	does
	not
	fall
	within 	the
	definition
	of
employer
	under
	HEERA
	section
	3562(h),
	PERB
	may
	not
	exercise
jurisdiction
	over
	USHC
	or
	its
	employees.
2	
(Fresno
	Unified
	School
District
	(1979)
	PERB
	Decision
	No.
	82,
	at
	p.
	5
	Fresno);
	See
	also
San Diego
	Community
	College
	District
	(1988)
	PERB
	Decision
	No.
662,
	at
	p.
	13,
	adopting proposed
	decision 	of 	administrative
	law
2
Section
	3562(h)
	defines
	a
	higher 	education 	employer
	as
the 	regents 	in 	the 	case 	of 	the 	University 	of
California, 	the 	Directors 	in 	the 	case 	of 	theHastings 	College 	of 	the
	Law, 	and 	the 	trusteesin 	the 	case 	of 	the 	California 	State
University, 	including 	any person 	acting 	as 	an
agent 	of 	an 	employer.
13

judge
	at
	10
	PERC
	Para.
	17087,
	p.
	363,
	rev.
	on
	other
	grounds
	San
Diego
	Adult
	Educators
	v.
	Public
	Employment
	Relations
	Board
	(1990)
223
	Cal.App.3d
	1124,
	1133 	[273
	Cal.Rptr.
	53] 	(San
	Diego)
	(private
foundation
	that
	contracts
	with
	community
	college
	district 	is
beyond
	PERB
	jurisdiction).)
As
	noted
	above,
	charging
	parties
	have
	not
	shown
	that
	UC
	has
retained
	significant
	control
	over 	the
	employees
	of
	USHC.
	Under
these 	circumstances,
	amending
	the
	complaint
	to
	include
	an
allegation 	that
	UC
	and
	USHC
	are
	joint
	employers
	would
impermissibly 	extend
	PERB
	jurisdiction
	to
	matters 	involving 	the
regulation
	of
	labor
	relations
	of
	USHC
	and
	its
	employees,
	in
violation
	of 	the
	PERB
	cases
	cited
	above 	and
	established 	federal
preemption
	principles.
	(See
	e.g.,
	Bethlehem
	Steel
	Co.
	v.
	New
York
	State 	labor
	Relations
	Board
	(1947) 	330
	U.S. 	767, 	775-776
	[19
LRRM
	2499]
	(Bethlehem
Steel);
	Weber
	v.
	Anheuser-Busch.
	Inc.
(1955) 	348
	U.S. 	468,
	481 	[35
	LRRM
2637];
	San Diego
	Building
Trades 	Council
	v.
	Garmon 	(1959) 	359
	U.S. 	236,
	245 	[43
	LRRM
	2838]
(San
	Diego
	Building
	Trades
	Council); 	Building
	and
	Construction
Trades 	Council
	v. 	Associated Builders
	and
	Contractors 	of
Massachusetts/Rhode
	Island
	(1993) 	507 	U.S.
	218 	[142
	LRRM
	2649]
(Building 	Trades).)
Single
	Employer
	Allegation
A
single
	employer
	relationship 	exists
	where 	two
	nominally
separate
	entities
	are 	actually part 	of
	a
	single 	integrated
enterprise 	so
	that 	there
	is 	in 	fact 	only
	a
	single
	employer. 	The
question 	in 	single
	employer 	cases
	is
	whether 	the
	two 	nominally
14

independent
	enterprises,
	in
	reality,
	constitute
	only
	one
integrated 	enterprise.
	In
	answering
	questions 	of
	this
	type,
courts
	look
	to
	four
	factors:
	(1)
	functional
	integration
	of
operations;
	(2)
	centralized
	control
	of 	labor
	relations;
	(3)
common
	management;
	and
	(4) 	common
	ownership.
	(Browning-Ferris
Industries
	at
	p.
	1122;
	Turlock
	at
	p;
	1516.)
No
	single 	factor
	is
	controlling
	and
	all
	need
	not
	be
	present.
(NLRB
	v. 	O'Neill
	(9th
	Cir.
	1992) 	965
	F.2d
	1522,
	1529 	[140
	LRRM
2557]
.)
	However,
	while
	common
	ownership
	is
	the
	least
	critical
factor, 	centralized
	control
	of
	labor 	relations
	is
	highly
significant.
	(See
	Turlock
	at
	p.
	17;
	Fresno
	at
	p.
	5.)
To
	the
	extent
	that
	charging
	parties'
	motion
	alleges
	that
	UC
and
	USHC
	constitute
	a
	single
	employer,
	it
	is
	denied. 	For
	the
reasons 	discussed
	above
	in
	connection with 	charging
	parties'
joint
	employer
	theory, 	the
	factual 	allegations 	offered
	in
	support
of 	the
	motion
	to
	amend
	the
	complaint
	do
	not
	state
	a
	prima
	facie
case
	that
	UC
	and
	USHC
	constitute
	a
	single 	integrated 	enterprise
so
	that 	there
	is
	in 	fact
	only
	a
	single
	employer.
In
	any
	event,
	a
	finding
	that
	UC
	and
	USHC
	constitute
	a
	single
employer 	would
	preclude
	PERB
	from
	exercising
	jurisdiction, 	for
USHC
	does 	not
	fall
	within 	the
	definition
	of 	employer
	in
	HEERA
section
	3562(h).
	(See
	Fresno
	at
	p.
	7; 	San Diego.) 	Moreover,
	the
regulation 	of 	labor 	relations
	of
	USHC
	and
	its
	employees
	is
	a
matter 	within 	the 	exclusive
	jurisdiction
	of 	the
	NLRB.
	(See
Bethlehem
	Steel
	Co.; 	San 	Diego
	Building 	Trades 	Council; 	Building
Trades.)
15

Unilateral
	Imposition,
	Coercion 	and
	Direct
	Dealing
	Allegations
Charging
	parties
	contend
	that
	UC
	and
	USHC
	unilaterally
imposed
	terms 	and
	conditions 	of
	employment 	on
	employees,
	coerced
employees, 	and
	bypassed 	the
	exclusive
	representatives
	in
	dealing
with
	employees.
	In
	its
	reply
	to
	the
	UC
	and
	USHC
	arguments
opposing
	the
	motion
	to
	amend
	the
	complaint, 	charging
	parties
expressly
	argue
	that
	the
	Board
	has
	jurisdiction 	in
	the
	first
instance
	with
	respect	
to	
whether
	the
	relationship
	between
	a
public
	employer 	and 	an
	otherwise
	private
	employer
	is
	such
	as 	to
bring 	the
	private
	employer
within 	the
	jurisdiction
	of
	PERB.
As 	a
	private
	employer,
	USHC
	is
	subject 	to 	the
	jurisdiction
of
	the
	NLRB,
	(Management
	Training
	Corp),
	and
	exercise 	of
	PERB
jurisdiction
	over 	the 	regulation 	of
	conduct
	arguably
	protected 	or
prohibited
	by
	the
	NLRA
as
	it
	relates
	to
	USHC
	and
	its
	employees
would
	violate
	well
	established principles
	of
	federal
	preemption.
(See
	e.g.,
	San Diego
	Building Trades 	Council; 	Wisconsin
Department
	of
	Indust;r:y, 	Labor 	and
	Human
	Relations 	v.
	Gould,
	Inc.
(1986) 	475 	U.S.
	282 	(121
	LRRM
	2737]
.)
	Moreover,
	because
	USHC
does
	not
	fall
	within 	the
	definition
	of
	employer
	under
	HEERA
section
	3562(h),
	PERB
	decisions 	hold
	that 	this
	agency
may
	not
exercise
	jurisdiction
	over 	the
	activities
	of
	USHC.
	(See
	Fresno;
San
	Diego.) 	Therefore, 	to 	the 	extent 	that
	charging
	parties'
motion 	claims
	that
	USHC
	has
	violated
	HEERA
by 	coercing
	employees
or 	dealing 	directly
	with 	employees,
	it
	is
	denied.
To
	the 	extent 	that
	charging
	parties 	allege
	UC
	bypassed 	the
exclusive 	representatives, 	dealt 	directly 	with 	bargaining 	unit
16

employees,
	or
	coerced
	employees,
	I
	find
	that 	allegation
	is
encompassed by
	the
	original
	complaint.
Conclusion
Based
	on
	the
	foregoing
	and
	PERB
	Regulation
	section
	32648,
charging
	parties'
	motion
	to
	amend
	the
	complaint
	is
	denied.
Date: 	February
	24, 	1998.
17
Fred D'Orazio
Administrative
	Law
	Judge

I
STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA
	NURSES
	ASSOCIATION,
ET AL,
Charging
	Party,
v.
THE
	REGENTS
	OF 	THE
	UNIVERSITY
OF
	CALIFORNIA
Respondent.
)
)
)
)
)
)
)
)
)
)
)
___________________
)
Unfair
	Practice
	Case,No.
SF-CE-452-H
ORDER
	DENYING
	CHARGING
	PARTIES'
	REQUEST
	FOR
	RECONSIDERATION
	AND
GRANTING
	CHARGING
	PARTIES' 	REQUEST
	FOR
	CERTIFICATION
	OF
INTERLOCUTORY APPEAL
Request 	For
	Reconsideration
The
	request 	for 	reconsideration
	of
	the
	February
	24, 	1998,
Order
	Denying Motion
	to
	Amend
	Complaint 	(Orderj
	is
	based
	on
	three
arguments
	summarized by
	charging
	party
	as 	follows.
	First,
charging
	parties 	assert,
	the
	Order
	erroneously
	assumes
	that
Senate
	Bill
	1350
	(SB
	1350)
	authorized 	the
	creation
	of
	UCSF-
Stanford Health
	Care
	(USHC)
	as
	a
	private 	corporation
	exempt 	from
coverage
	by
	HEERA
	and
	thus
	beyond
	PERB
	jurisdiction.
	Second,
because 	of
	this 	error,
	the
	Order
	fails
	to 	evaluate
	whether
	USHC
can
	properly
	be 	considered 	"private" 	for
	purposes 	of 	exemption
from
	the
	Higher 	Education
	Employer-Employee
	Relations
	Act
	(HEERA)
and
	jurisdiction
	of 	the 	Public
	Employment
	Relations
	Board
	(PERB
or
	Board)
	consistent 	with 	constitutional 	obligations 	of 	the
Regents 	of 	the 	University 	of 	California
	(UC
	or University) 	to
protect 	the 	public 	trust
	of 	University Medical 	Center 	operations
and
	limit 	delegation 	of 	authority 	over 	essential 	University

(
functions. 	In
	this
	respect,
	the
	Order
	fails
	to
	consider
	USHC's
role
	as
	an
	"agent" 	of
	the 	University 	within 	the
	meaning
	of
Government
	Code
	section
	3562(h). 	Third,
	there
	is
	new
	evidence 	of
ongoing
	USHC
	authority
	and
	control
	over
	"leased"
	employees
	that
extends
	beyond
	the
	"transition
	period.
11
	(Request
	for
Reconsideration,
	pp. 	1-2)
As
	the 	University
	and
	USHC
	point
	out
	in
	their
	opposition
	to
the
	Request
	for
	Reconsideration,
	arguments
	raised
	by
	charging
parties 	in
	large 	part
	have
	already
	been
	addressed
	in
	the
	February
24,
	1998, 	Order. 	Conclusions 	reached
	in
	the
	Order 	need
	not 	be
repeated 	here.
	However, 	a 	few
	brief
	cormnents
	are
	warranted.
Based
	on
	SB
	1350
	and
	its
	legislative 	history,
	the
	Order
concludes
	that
	USHC
	is
	a
	private 	entity
	not 	covered
	by
	HEERA.
Charging
	parties
	argue,
	however,
	that
	it
	cannot 	be
	assumed
	USHC
was
	lawfully 	created 	as
	a
	private
	corporation
	simply
	by
	reference
to
	the 	language
	of
	SB
	1350
	and
	its
	legislative 	history.
According
	to
	charging
	parties,
	the 	determination 	of
	whether
	USHC
is
	a
	private
	corporation
	must 	be
	made
	independently 	of
	SB
	1350
after
	considering
	whether
	the 	University acted 	within
	its
constitutional 	authority 	in 	creating
	USHC
	in
	the
	first
	place.
Charging
	parties
	contend
	further 	that
	the 	University
	exceeded
	its
authority
	because 	nothing 	short
	of
	a
	constitutional
	amendment
	can
support 	the 	creation
	and
	delegation 	of
	authority 	to
	USHC.
	Thus,
SB
	1350
	cannot 	be
	relied
	upon
	for 	the 	conclusion
	that
	USHC
	is
	a
private 	entity.
2

r
The
	crux
	of 	charging
	parties'
	argument
	is
	that
	PERE
	should
ignore
	SB
	1350
	on
	the
	ground
	that
	any
	construction
	of
	that
statute
	that
	recognizes
	USHC
	as
	a
	private
	entity 	is
unconstitutional.
	However,
	PERE
	has
	no
	authority
	to 	declare
	a
statute
	unenforceable
	on
	constitutional
	grounds.
	(California
Constitution,
	Article
	III,
.Section 	3.5;
	San
	Ramon
	Valley
	Unified
School
	District
	(1982)
	PERE
	Decision
	No.
	254, 	p.
	7.)
	Moreover,
whether
	the 	University 	acted 	within
	constitutional
	bounds
	in
	the
formation 	of
	USHC
	is
	the
	subject
	of
	litigation
	in
	another
	forum.
1
Charging
	parties 	also
	argue
	for 	reconsideration
	based
	on
	new
evidence
	in
	the
	form
	of
	recently
	issued 	"Guidelines
	for
	UCSF
Employees
	Leased
	to
	UCSF
	Stanford" 	(Guidelines).
	Under
	these
Guidelines, 	according
	to
	charging
	parties,
	USHC
	managers
	exercise
control
	over
	the 	supervision 	of
	all
	UCSF
	leased
	employees.
For
	example, 	employees
	are 	subject 	to 	daily 	direction
	of
USHC
	managers.
	Employees 	must
	follow
	work
	rules
	-- 	including
scheduling, 	leaves,
	etc.
	--
	in
	the
	unit 	or
	department
	in
	which
they
	work.
	USHC
	managers
	play
	a
	significant 	role 	in 	evaluating
the
	performance
	of 	leased
	employees.
	Disciplinary action
	is
taken
	in
	coordination with 	the
	employee's
	USHC
	manager.
	USHC
provides 	payroll 	services 	for 	leased
	employees. 	Leased 	employees
must
	notify
	USHC
	when
	seeking 	treatment 	for 	work-related
	injury
or
	illness.
	USHC
	provides 	malpractice
	and
	general
	liability
1
See 	University 	Response
	to
	Request
	for 	Reconsideration, 	p.
3, 	fn.1. 
3

r
coverage
	and
	UC
	charges
	USHC
	for
	the 	cost 	of
	workers'
compensation
	coverage.
However,
	while
	these
	factors
	point
	to
	an
	interrelationship
between
	USHC
	and
	UC,
	they
	do
	not 	override 	the
	terms
	of 	the
	lease
agreement
	(Agreement
	for
	Services)
	that
	governs
	the
	relationship.
As
	noted
	in
	the
	Order,
	the
	Agreement
	for 	Services,provides
	that
UC
	shall
	have
	ultimate
	responsibility 	for
	the
direction
	and
	supervision
	of
	all
	leased
	UC
employees.
	A
UC
	manager
	shall
	be
	identified
for
	each
	leased
	UC
	employee, 	and
	shall
	have
full
	authority 	to
	direct
	and
	counsel
	that
employee.
	USHC
	shall
	have
	the
	right 	to
provide
	direction
	subject 	to
	UC's
	ultimate
responsibility
	as
	identified
	herein.
The
	Agreement
	for
	Services 	contains
	many
	additional 	references
	to
areas
	where
	UC
	retains 	responsibility
	over
	lease
	employees.
While
	these
	need
	not
	be 	enumerated
	here,
	a 	few
	are
	worth
mentioning.
	Section
	9
	provides
	that
	"UC
	is
	and
	will
	continue
	to
be
	the
	employer
	of 	the 	leased
	UC
	employees
11	
and
	"nothing
contained
	in 	this
	agreement
	is
	intended,
	and
	nothing 	herein
	shall
be
	construed,
	to 	create
	an 	employer/employee
	relationship
	between
the 	leased
	UC
	employees 	and
	USHC." 	And
	section
	12
	provides
	that
"nothing
	herein 	shall 	in
	any
	way
	reduce
	or
	detract
	from
	the
obligation
	of
	any
	leased
	UC
	employee
	to
	comply
	with
	UC
	policies."
In 	addition, 	the 	Guidelines 	inform employees
	as 	follows:
As 	a
	leased
	employee, 	you
	continue
	to
	be
covered 	by
	the
	UC
	collective bargainingagreement 	and/or 	personnel 	policy
	which
applies 	to
	your
	UC
	job
	classification.
	These
[Guidelines]
	do
	not 	supersede 	or 	replace
	any
existing University 	of 	California 	collectivebargaining 	agreements 	or 	personnel 	policies.
4

(
Therefore,
	it
	is
	concluded
	that
	the
	new
	evidence
	offered
	by
charging
	parties
	adds
	little
	to
	the
	existing
	record.
	Charging
parties'
	request 	for 	reconsideration
	is
	denied.
Request
	for 	Certification
	of
	Interlocutory
Appeal
Charging
	parties
	also
	request
	that
	the
	February
	24, 	1998,
Order 	and
	this
	denial 	of
	reconsideration
	be
	certified
	for
interlocutory
	appeal
	on
	an
	augmented
	record
	which
	includes
arguments 	and
	materials
	submitted 	with 	the
	Request
	for
Reconsideration.
PERE
	regulations
	provide
	that
	a
	party
	may
	object 	to
	an
administrative
	law
	judges's
	(ALJ)
	interlocutory 	order 	or 	ruling
on 	a
	motion
	and
	request
	a
	ruling
	by
	the
	Board
	itself.
	The
	Board
will 	not 	accept 	the 	request 	unless 	the
	ALJ
	joins
	in
	the 	request.
The ALJ may 	do
	so 	only
	where
	all
	of 	the
	following 	apply:
	(1)
	the
issue
	involved
	is
	one
	of
	law;
	(2)
	the 	issue
	is
	controlling 	in
	the
case;
	and
	(3)
	an 	immediate
	appeal
	will 	materially
	advance
	the
resolution
	of 	the 	case.
	(Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
	32200.)
The
	issues 	for
	certification
	are
	as 	follows:
	(1)
	whether
charging
	parties
	have
	stated
	a
	prima
	facie
	case
	that
	USHC
	and
	UC
are
	joint
	employers? 	and
	(2) 	Assuming
	joint
	employer
	status
	is
established,
	may
	PERE
	exercise 	jurisdiction
	over
	USHC
	or
	its
employees?
	All 	of 	the 	section
	32200
	criteria
	are
	met
	with
respect 	to 	these 	issues.
First,
	whether
	a
	prima
	facie 	case
	exists 	is
	a
	legal
determination
	made
	after
	considering 	charging
	parties 	factual
allegations 	in 	light
	of 	the 	existing 	record. 	Also, 	whether
	USHC
5

(
and
	UC
	may
	legally 	constitute
	a
	joint
	employer
_under
	the
circumstances
	presented
	here 	involves
	a
	question 	of
	law
	related
to	
PERE
	jurisdiction.
	This
	involves
	application
	of
	PERE
decisions
	addressing 	the
	issue
	of
	joint
	employer
	status,
	National
Labor
	Relations
	Board
	(NLRB)
	decisions 	addressing
	NLRB
,jurisdiction,
	federal
	preemption
	principles,
	the
	interpretation
of
	SB
	1350, 	and
	the
	definition
	of 	higher 	education
	employer
	under
HEERA,
	section
	3562(h).
	Second,
	the 	issues
	certified
	for
	appeal
control 	the 	ultimate 	disposition
	of 	charging
	parties'
	motion
	to
amend
	the
	complaint. 	Third, 	an
	immediate
	appeal
	will 	materially
advance
	the 	ultimate 	resolution
	of 	the 	case.
	The
	underlying
unfair 	practice
	complaint 	concerns
	allegations
	that
	UC
	has
refused
	to 	negotiate
	about
	the 	decision 	and/or 	the
	effects
	of 	the
decision 	to 	enter 	into
	the
	merger
	with Stanford
	and
	refused 	to
provide 	information.
	If
	the
	February
	24, 	1998,
	Order
	is
affirmed, 	the 	hearing
	will
	address 	only
	the
	decision/effects
bargaining
	allegations
	and
	the 	refusal 	to 	provide 	information
allegations
	contained
	in
	the
	original
	complaint.
	It
	will 	be·
unnecessary
	to
	engage
	in
	litigation
	about
	the
	UC-USHC
relationship
	and
	joint
	employer
	status.
	However,
	if
	charging
parties 	prevail 	in 	their
	appeal 	of 	the
	Order,
	the
	complaint
	will
be 	amended
	and
	the 	hearing
	expanded
	to 	include 	issues 	related 	to
joint
	employer
	status.
Therefore,
	I
	hereby
	certify 	for 	interlocutory 	appeal 	the
February 	24, 	1998, 	Order 	denying 	the 	motion
	to
	amend
	the
complaint 	and
	this 	denial 	of 	charging
	parties' 	request 	for
6

reconsideration of the Order, including the augmented record
which includes arguments and materials submitted with the Request
for Reconsideration.
This certification does not include that part of the Order
concerning allegations that USHC and UC have violated HEERA by
unilaterally imposing terms and conditions of employment on
employees, coercing employees, and bypassing the exclusive
representatives in dealing with employees. (Order at pp. 16-17.)
This interlocutory appeal and responses thereto must be
filed in accordance with PERE regulations 32350-32380. Future
correspondence regarding this interlocutory appeal should be
directed to the Public Employment Relations Board, 1031 18th
Street, Sacramento, CA. 95814-4174. 2
Dated: May 4, 1998 Fred D'Orazi6
Administrative Law Judge
2Unfair Practice Case No. SF-CE-452-H will be held in
abeyance until further notice.
7