California State University (PERB J011H)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
In 	the Matter 	of
The 	Requests 	for 	Reconsideration 	and
Judicial 	Review of 	Unit 	Determination
for 	Employees 	of 	the California 	State
University 	and 	Colleges 	Pursuant 	to
Chapter 	744 	of 	the 	Statutes 	of 	1978
(Higher 	Education 	Employer-Employee
Relations 	Act)
UNION 	OF AMERICAN 	PHYSICIANS
AND DENTISTS,
Employee 	Organization,
PETITIONER,
and
THE 	TRUSTEES 	OF 	THE CALIFORNIA
STATE UNIVERSITY AND COLLEGES,
Employer,
PETITIONER.
Case No. 	LA-RR-1001
LA-RR-1001-1
LA-RR-1001-2
LA-RR-1001-3
LA-RR-1002
LA-PC-1002
LA-IP-2
PERB Decision No. 	173-H
PERB Order No. 	JR-ll-H
December 17, 	1981
)
)
Appearances; 	Gary Robinson, 	Executive Administrator 	for 	the
Union of American Physicians 	and Dentists; 	Mayer 	Chapman, 	Vice
Chancellor 	and General Counsel, 	William G. 	Knight and
Barbara E. 	Miller, 	Attorneys 	for 	The Trustees of The California
State 	University 	and 	Colleges.
Before Gluck, Chairperson; 	Jaeger, Moore and Tovar, Members.
DECISION 	AND 	ORDER
The 	Union 	of American 	Physicians 	and 	Dentists 	and 	the
Trustees 	of 	the 	California 	State 	University 	and 	Colleges
(hereafter 	Employer 	or 	CSUC) 	request 	that 	the 	Public Employment
Relations Board 	(hereafter 	PERB or 	Board) 	reconsider 	several

aspects 	of 	its 	decision 	in 	the 	Unit Determination 	for 	Employees
of 	the California 	State University 	and Colleges 	(9/22/81) 	PERB
Decision No. 	173-H. 	CSUC 	also petitions 	the Board 	to join 	in
its 	request 	for 	judicial 	review pursuant 	to 	section 3564(a) 	of
the 	Higher 	Education 	Employer-Employee 	Relations Act 	(hereafter
HEERA).1
Both 	requests 	for 	reconsideration 	contain 	arguments 	that
were 	raised 	in 	the 	litigation 	of 	the case 	above 	and 	point 	to 	no
error 	of 	fact or 	law. 	The 	parties presented 	no 	new 	facts 	and
none 	which 	this Board 	did 	not 	thoroughly 	consider 	in
determining 	the 	professional 	units. 	The 	requests 	reveal 	that
the 	petitioners 	simply disagree 	with 	the 	conclusions 	we 	have
drawn 	from 	the 	evidence. 	Such disagreements 	and 	rearguments 	do
is codified 	at Government Code 	section 3560 	et
seq. 	Unless otherwise 	noted, 	all 	references are 	to 	the
Government Code.
Section 3564(a) 	reads:
No 	employer 	or 	employee 	organization 	shall
have 	the 	right 	to 	judicial 	review 	of 	a unit
determination except: 	(1) 	when 	the board 	in
response 	to 	a petition 	from 	an employer 	or
employee organization, 	agrees 	that 	the case
is one 	of 	special 	importance 	and 	joins 	in
the 	request 	for 	such review; 	or 	(2) 	when 	the
issue 	is 	raised 	as 	a defense 	to 	an unfair
practice 	complaint. 	A 	board 	order 	directing
an election 	shall 	not 	be 	stayed 	pending
judicial 	review.
Upon 	receipt of 	a 	board 	order 	joining 	in 	the
request 	for 	judicial 	review, 	a party 	to 	the
case may 	petition 	for 	a writ 	of
extraordinary 	relief 	from 	the 	unit
determination decision or 	order.

not 	constitute 	the 	"extraordinary 	circumstances" 	required 	by
rule 	32410.2 	Accordingly, 	the 	requests 	for 	reconsideration
are DENIED.
CSUC 	also 	requests 	permission 	to 	reopen 	the 	record 	for 	the
purpose 	of 	giving 	additional 	evidence 	regarding 	the 	supervisory
status of 	approximately 95 	department 	chairs. 	While 	reopening
the 	record would 	normally 	require 	proof 	of 	evidence 	not
available or 	not 	admitted 	at 	the 	time 	of 	the 	hearing, 	the Board
rules 	are 	codified 	at California Administrative
Code, 	title 8, 	section 31000 et 	seq.
Rule 	32410 	states:
(a) 	Any 	party 	to 	a decision of 	the Board
itself may, 	because of 	extraordinary
circumstances, 	file a request 	to 	reconsider
the 	decision with 	the Board 	itself within
10 	days 	following 	the 	date 	of 	service 	of 	the
decision. 	The 	request 	for 	reconsideration
shall 	be 	filed 	with 	the 	Executive Assistant
to 	the Board 	and 	shall 	state with
specificity 	the 	grounds claimed 	and, 	where
applicable, 	shall 	specify 	the 	page of 	the
record 	relied on. 	Service 	and 	proof of
service 	of 	the 	request pursuant 	to 	Section
32140 	are 	required.
(b) 	Any party 	shall have 	10 days 	from
service 	to 	file 	a 	response 	with 	the Board
itself. 	The 	response 	shall 	be 	filed with
the 	Executive Assistant 	to 	the Board.
Service 	and 	proof 	of 	service 	of 	the 	response
pursuant 	to 	Section 32140 	are 	required.
(c) 	The 	filing of a request 	for
reconsideration 	shall 	not 	operate 	to 	stay
the effectiveness 	of 	a decision of 	the Board
itself 	unless 	otherwise 	ordered 	by 	the 	Board
itself.

recognizes 	the 	complexity of 	the 	issues presented, 	the 	time
constraints 	the 	litigants were 	under, 	and 	the 	fact 	that 	it was
initially 	the 	Employer's 	position 	that 	all 	chairs 	should 	be
excluded 	as 	supervisors. 	In 	view 	of 	these 	circumstances, 	we
direct 	that 	if CSUC challenges 	the 	voting eligibility 	of 	any 	or
all 	of 	the 	95 	department 	chairs because 	of 	their 	alleged
supervisory 	status, 	those 	challenged 	ballots will 	be 	resolved
by 	the 	regional director 	whether 	or 	not 	they 	are 	determinative
of 	the 	outcome 	of 	the election.
The 	California 	State 	University 	and Colleges' 	petition 	that
the Board 	join 	in 	its 	request 	for 	judicial 	review 	is DENIED,
there 	appearing 	no 	ground 	for 	considering 	this 	case 	one 	of
"special 	importance" 	within 	the meaning of 	the Act.4
PER 	CURIAM
Member 	Tovar's 	concurrence 	and 	dissent 	begins on page 5.
dissent 	contends 	that CUSC's 	position 	regarding
student 	services classifications, 	like 	its position on
department chairs, 	is 	that while 	the 	entire classification may
not be 	supervisory, 	certain 	incumbents 	in 	the classification
are. 	This 	incorrectly characterizes CSUC's 	request 	for
reconsideration, 	since 	the 	employer 	continues 	to maintain 	the
disputed 	classifications 	within 	the 	student 	affairs 	series 	are,
in 	their entirety, 	supervisory. 	Thus, 	as 	to 	these classes CSUC
is merely rearguing 	the 	position 	it 	took 	in 	the 	original 	unit
hearing 	which 	this 	Board 	has 	rejected.
4See 	San Diego Unified 	School. District 	(10/27/81) 	PERB
Order 	No. 	JR-10 	and 	Livermore 	Valley Joint Unified 	School
District 	(10/21/81) 	PERB Order No. 	JR-9. 	Though decided 	under
the EERA, 	Government Code 	section 3540 et seq. , 	both statutes'
pertinent provisions 	are 	identical.

Member 	Tovar 	Concurring 	and 	Dissenting:
I 	join 	in all 	aspects of 	the decision except 	that 	I 	would
also 	direct 	that 	challenged 	ballots 	cast 	by 	allegedly
supervisory 	employees 	in 	student 	affairs 	and 	two 	other
classifications 	be 	resolved, 	whether 	outcome 	determinative 	or
not, 	along with challenged 	ballots cast by department
chairs.5 The majority's 	decision 	to 	resolve 	department 	chair
challenges but not others 	is, 	in my view, 	arbitrary and 	lacking
any meaningful distinction. 	There 	is 	no 	significant
distinction 	between 	these 	classes 	which 	warrants 	resolving
challenges 	of departmental chairs but not challenges 	in 	the
other 	classes. 	To 	the contrary, 	similarities 	exist which 	favor
resolution of 	the 	status 	of 	supervisory employees 	in all
classes 	which are 	not excluded 	in 	toto. 	Furthermore, 	PERB has
a 	responsibility 	under 	the 	statute 	to ensure 	that 	supervisory
employees 	are 	separated 	from 	rank 	and 	file 	employee 	activities
and rights 	(section 3580 et seq.).
CSUC's 	request 	to 	reopen 	the 	record 	on department 	chairs
states 	that 	the 	record 	lacks 	evidence 	which would 	lead 	PERB 	to
exclude 	certain of 	them as 	supervisors. 	It cites 	language 	in
PERB's 	own 	decision 	indicating 	that 	the 	record 	was 	"replete
classifications 	are: 	Student Affairs Assistant 	III
and 	IV, 	Supervising Student Affairs Assistant 	II, 	III 	and 	IV,
Supervising 	Student Affairs Officer 	III 	and 	IV, 	Assistant
Director 	of 	the 	Library 	and 	Supervising Registered Nurse 	III.

with 	contradictions 	and 	inconsistencies 	suggesting 	that 	both
authority 	and 	procedures 	differ 	among 	departments 	and
campuses." 	CSUC explains, 	as we note, 	that 	the presentation of
complete 	evidence 	on 	all 	department 	chairs would 	have 	been
extremely 	time 	consuming.6
CSUC 	presents 	a 	similar 	request 	regarding employees 	in 	the
student 	affairs classes 	who may 	have 	supervisory
responsibilities 	which would 	exclude 	them from 	the 	unit. 	CSUC
notes 	that 	PERB 	has 	expressed 	uncertainty 	regarding 	the 	extent
of 	supervisory 	duties 	of employees 	in 	these 	classes 	and
acknowledges 	that 	the 	record 	regarding 	them 	was 	incomplete. 	AS
with 	department 	chairs, 	CSUC 	explains 	that presentation of 	its
original 	case 	at 	the 	PERB 	unit 	hearing was 	limited 	by 	practical
considerations 	of 	time. 	Also, 	as with 	its 	request 	regarding
department chairs, 	CSUC 	implicitly acknowledges 	that, 	in light
of 	our 	unit decision, many 	of 	the 	employees 	in 	these 	classes 	are
not 	supervisory. 	It requests, 	therefore, 	that PERB reopen 	the
record 	to 	take 	additional evidence 	to 	identify certain
employees 	in 	these classes who 	are 	supervisory, 	supervise other
unit employees 	or 	who 	are 	supervisors 	a majority of 	the 	time,
CSUC 	does 	not 	contend 	that 	they 	are 	requesting 	to
present 	evidence 	which was 	unavailable 	at 	the 	first 	hearing.
The 	additional evidence 	it wishes 	to 	present 	focuses on 	the
role 	and 	function of department chairs 	in 	relation 	to
temporary, 	nontenure-track 	faculty. 	CSUC 	had 	taken 	the position
that 	temporary 	employees 	should 	not 	be 	in 	the 	same 	unit 	as
tenure-track 	employees 	(which department chairs 	are).

in 	the 	event 	we 	decline 	to 	reconsider 	our 	refusal 	to 	exclude
these 	classes 	in 	toto.
Regarding 	the Assistant 	Director 	of 	the 	Library 	and 	the
Supervising Registered Nurse classifications, 	CSUC's 	request
suggests 	that 	the function of employees 	in 	these 	classes 	is 	not
uniform on all campuses. 	As with 	the 	other 	classifications,
additional evidence 	should 	be 	taken 	to 	identify employees 	in
the 	class 	who may 	be 	supervisors.
In PERB Decision No. 	173-H, 	I 	joined my colleagues 	in
deciding 	not 	to 	exclude 	these 	disputed 	classifications 	in 	their
entirety. 	It was my position, 	however, 	that 	individual
employees 	in 	these 	otherwise 	rank 	and 	file classes might be
supervisory employees, 	and 	that 	their 	status could 	be
determined 	at a later 	proceeding. 	For 	example, 	as we 	explained
in 	that 	decision 	regarding 	the 	Supervisory 	Student Affairs
Assistant, 	"there 	is 	insufficient evidence 	that 	supervising
student 	assistants 	as 	a class 	exercise 	any of 	the 	supervisory
functions 	. . . 	to 	warrant 	their 	exclusion 	from 	the 	unit
(emphasis added)." 	Thus, 	in my view, 	PERB has not precluded
the 	subsequent 	finding 	that 	some 	student 	affairs 	assistants 	are
supervisors. 	The 	limited 	scope 	of 	our 	decision 	is 	underscored
by 	our 	amending 	our Order 	in 	the 	case. 	As 	first 	issue, 	the
Order 	indicated 	the 	classifications 	included 	in 	each 	unit 	and
that 	all 	job classifications 	found 	to 	be managerial,
supervisory 	or 	confidential were 	to 	be excluded. 	Subsequently,

the 	order 	was 	amended 	to 	state 	"excluding 	all 	employees 	found
to be 	. 	. 	. 	." 	(emphasis added).
The 	posted 	PERB 	election 	order 	also 	states 	that 	supervisory
employees 	in classes 	included 	in 	the 	unit 	are 	to 	be 	excluded.
Although 	our 	order 	today 	directs 	only 	that 	the 	95 	department
chair 	ballots 	are 	to 	be 	resolved, 	the University 	is presumably
not 	precluded 	from 	challenging 	ballots 	of 	employees 	in 	the
student 	affairs 	classifications 	in 	issue. 	Under 	PERB 	rules,
however, 	the 	challenges 	would 	not 	be 	resolved 	unless 	they 	are
outcome 	determinative. 	I 	favor 	resolving 	such 	challenges
regardless 	of 	the 	election outcome.
Otherwise, 	the 	supervisory 	status 	of 	individual 	employees
may be presented 	for 	resolution 	in 	another 	forum, 	without, 	in
my view, 	our 	having 	made 	a prior 	determination 	as 	to 	individual
employees.3
Irene Tovar, Member
3see 	Grossmont 	Union High 	School 	District 	(7/25/77) 	EERB
Decision No. 	11 and EERA section 3542(a) (2).
8