Regents of the University of California (Association of Graduate Student Employees, et al.) (PERB A269H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMtLOYMENT 	RELATIONS 	BOARD
REGENTS 	OF 	THE 	UNIVERSITt 	O?
CALIFORNIA,
Employer,
and
ASSOCIATION 	OF 	GRADUATE 	STUDENT
EMPLOYEES, 	U.A.W., 	UNITE~
AUTOMOBILE, 	AEROSPACE AND
AGRICULTURAL 	IMPLEMENT WORKERS
OF 	AMERICA, 	AFL-CIO,
and
STUDENT 	ASSOCIATION 	OF 	GRADUATE
EMPLOYEES, 	U.A.W., 	UNITED
AUTOMOBILE, 	AEROSPACE AND
AGRICULTURAL 	IMPLEMENT 	WORKERS
OF 	AMERICA, 	AFL-CIO,
and
ASSOCIATED 	STUDENT 	EMPLOYEES,
U.A.W., 	UNITED 	AUTOMOBILE,
AEROSPACE 	AND 	AGRICULTURAL
IMPLEMENT 	WORKERS 	OF 	AMERICA,
AFL-CIO,
Petitioners.
)
)
Case 	No. 	SF-R-806-H
Interlocutory Appeal
PERB 	Order 	No. 	Ad-269-H
July 	17, 	1995
Case 	No. 	SF-R-813-H
) 	Case 	No. 	SF-R-815-H
)
)
)
)
Appearances: 	Corbett 	& Kane 	by 	Sharon 	J. 	Grodin, 	Attorney, 	for
Regents 	of 	the 	University 	of 	California; 	Schwartz, 	Steinsapir,
Dohrmann 	& 	Sommers 	by Margo 	A. 	Feinberg, 	Attorney, 	for
Association 	of 	Grad:.13.::,2 	~tudent 	Employees, 	U.A.W., 	United
Automobile, 	Aerospace 	and 	Agricultural 	Implement 	Workers 	of
America, 	AFL-CIO; 	Student. 	Association 	of 	Graduate 	Employees,
U.A.W., 	United 	Automobil8, 	Aerospace 	and 	Agricultural 	Implement
Workers 	of 	America, 	AFL-CIO; 	Associated 	Student 	Employees,
U.A.W., 	United 	Automobile, 	Aerospace 	and 	Agricultural 	Implement
Workers 	of 	America, 	AFL-CIO.
Before 	Carlyle, 	Johnson 	and 	Caffrey, 	Members.

DECISION
CAFFREY,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	an
	interlocutory
	appeal
	filed
by
	the
	Regents
	of
	the 	University
	of
	California
	(University)
	and
joined
	by
	the
	PERB
	administrative
	law
	judge
	(ALJ)
	concerning 	the
ALJ's 	Ruling
	on
	Order
	to
	Show
	Cause.
After
	a
	review 	of
	the
	entire
	record
	in
	this
	case,
	the
	Board
finds 	the
	ALJ's
	ruling 	to
	be
	proper
	and
	affirms 	the
	Ruling
	on
Order
	to
	Show
	Cause.
BACKGROUND
Three
	separate 	requests 	for 	recognition
	seeking
	to 	represent
employees
	in 	various
	classifications 	at
	University
	of
	California,
Davis,
	University
	of
	California,
	Santa 	Barbara
	and
	University
	of
California,
	Los
	Angeles
	(UCLA)
	were
	filed
	with
	PERB
	by
	the
Association
	of 	Graduate 	Student
	Employees,
	Student
	Association
	of
Graduate
	Employees, 	and
	the 	Associated 	Student
	Employees
(Petitioners).
	Each
	association
	is
	an
	affiliate
	of
	U.A.W.,
United
	Automobile, 	Aerospace 	and
	Agricultural
	Implement 	Workers
of 	America,
	AFL-CIO. 	The
	Petitioners
	seek
	to 	represent
	at 	their
respective
	campuses,
	among
	others, 	student
	employees
	in 	the
following
	classifications:
	Teaching
	Associate,
	Teaching
Assistant,
	Teaching 	Fellow 	(Graduate 	Student
	Instructors
	(GSI)),
and 	Research
	Assistant
	(Graduate 	Student 	Researcher
	(GSR)) . 1
1A
	separate 	petition 	filed
	by
	the 	Association 	of 	Student
Employees 	seeks 	to 	represent 	student
	employees
	in various 	job
classifications 	at 	University 	of 	California,
	San 	Diego
(UC
	San 	Diego).
	The
	classifications 	in 	question 	in 	the 	presentcase 	are 	not 	at 	issue 	in 	the
	UC
	San Diego
	petition
	(SF-R-805-H).
2

Therefore, 	the 	ALJ's 	Ruling
	is
	not 	applicable 	to 	the
	UC
	San 	Diego
petition.
In
	1989,
	the
	Board
	issued
	Regents
	of
	the 	University 	of
Calif9rnia
	(AGSE)
	(1989)
	PERB
	Decision
	No.
	730-H,
	in
	which
	it
held
	that
	the
	GSI
	and
	GSR
	student
	employees
	at
	University
	of
California,
	Berkeley
	(UC
	Berkeley)
	were
	not
	covered 	under
	the
Higher 	Education
	Employer-Employee
	Relations
	Act
	(HEERA) 2	
and,
therefore,
	the
	University 	did
	not
	violate
	HEERA
	when
	it
	refused
to 	bargain
	with 	the
	student
	employees
	in
	these
	classifications.
In
	May
	1992,
	the 	court 	affirmed 	the
	PERB
	decision 	in 	Association
of 	Graduate 	Student
	Employees,
	District
	65.
	UAW
	AFL-CIO
	v.
PERE/Regents
	of
	the 	University
	of
	California
	(1992)
	6
	Cal.App.4th
1133
	[8
	Cal.Rptr.2d
	275)
	rev.
	den.
	August
	13,
	1992
	(AGSE).
	In
light
	of 	the
	court's
	decision,
	on December
	22, 	1994,
	the
	ALJ
ordered
	Petitioners
	to
	show
	cause
	why
	these
	classifications,
previously
	deemed
	not 	covered 	under
	HEERA
	at
	the
	UC
	Berkeley
campus,
	should 	not
	be
	dismissed
	from
	their
	representation
petitions 	affecting 	other 	university
	campuses.
On
	March
	13,
	1995,
	the
	ALJ
	issued
	his
	Ruling
	on
	Order
	to
Show
	Cause
	holding
	that
	the
	classifications 	in 	question 	should
not 	be 	dismissed
	from
	the
	petitions 	at 	this
	stage
	of 	the
proceedings.
	The
	ALJ
	concluded
	that
	evidence 	should be
	taken
	so
that 	the
	unique 	circumstances 	of 	each
	campus, 	and any
	evidence 	of
changed 	circumstances 	since
	1985 	when
	the
	AGSE
	case 	record
	was
developed, 	can 	be
	evaluated.
2HEERA
	is 	codified 	at
	Government 	Code
	section
	3560
	et 	seq.
3

UNIVERSITY'S 	APPEAL
The
	University
	seeks
	the 	Board's
	reversal
	of 	the
	ALJ's
ruling
	and
	a
	determination
	that
	the
	classifications
	in 	question
are
	not
	covered 	under
	HEERA.
	The
	University
	contends
	that
	the
AGSE
	decision,
	excluding
	GSis
	and
	GSRs
	as
	employees
	under
	the
HEERA
	at
	UC
	Berkeley,
	is
	applicable
	systemwide.
	The
	University
also
	contends
	that
	the
	Petitioners
	have
	made
	no
	showing
	of
changed
	circumstances
	that
	would
	justify 	relitigating 	this
	issue
with 	regard 	to 	these
	job
	classifications.
The
	University 	requests
	that
	the
	Board
	act
	quickly
	to
reverse
	the
	ALJ's
	ruling, 	or
	direct
	the
	ALJ
	to 	defer
	the 	next
hearing
	until
	the 	winter
	of
	1996.
	The
	University
	asserts 	that
the 	delay
	is
	necessary
	due
	to 	the 	extensive 	preparation
	which
	is
required 	in 	representation 	cases. 	Alternatively,
	the 	University
requests 	that
	the
	Board
	stay
	the 	proceedings
	in
	the
	remaining
three
	cases
	until
	the
	ALJ
	has
	issued
	his
	proposed
	decision
concerning
	UC
	San 	Diego, 	and any
	appeals
	from
	that
	decision
	have
been
	made
	and
	decided
	by
	the
	Board.
PETITIONERS' 	RESPONSE
The
	Petitioners
	argue
	that
	PERB
	precedent 	allows
	for
reconsideration
	of
	prior
	PERB
	representation 	decisions
	if
	the
parties
	can
	show
	changed
	circumstances.
	Petitioners
	claim
	that
the 	evidence 	they 	seek
	to 	present 	will 	establish 	that 	conditions
of 	employment
	for 	the
	employees
	in 	these 	classifications
	have
changed.
	Petitioners 	also
	contend
	that 	the
	AGSE
	decision
	is
limited 	to
	UC
	Berkeley 	and 	does 	not 	bind 	the 	parties 	in 	the
4

5
instant
	representation
	cases.
	Finally,
	the
	Petitioners
	oppose
the
	University's
	request 	for
	a
	stay
	of
	the
	proceedings
	in 	these
cases.
	Petitioners
	claim
	that
	a
	stay
	would
	have
	the
	effect
	of
depriving
	many
	of
	the
	student
	employees
	of
	the 	opportunity
	for
union
	representation
	during
	their
	employment
	with 	the
	University.
PIS
CUSS
ION
The
	question 	before 	the
	Board
	is
	whether
	it
	should
	reverse
the
	ALJ
	and
	bar
	the
	Petitioners
	from
	putting
	on
	evidence
	of
changed
	circumstances
	in
	the 	job
	duties
	of
	the 	student
	employee
classifications
	in 	question.
The
	Board
	has
	held
	that 	parties
	have
	the
	right
	to
relitigate
	representation
	matters
	by
	demonstrating
	a
	change
	in
circumstances.
	(Reoents
	of
	the 	University
	of
	California
	(1986)
PERE
	Decision
	No.
	586-H
	(Regents
	I);
	Regents
	of
	the 	University
	of
California
	(Lawrence
	Livermore
	National 	Laboratory)
	(1993)
	PERE
Decision
	No.
	974-H;
	Regents
	of 	the 	University
	of
	California
(1993)
	PERE
	Decision
	No.
	993-H.)
	In
	Regents
	I,
	the
	Board
	held
that
	previous
	unit
	determinations 	are
	binding 	only
	to 	the
	extent
that
	circumstances
	and 	Board
	precedent
	remain
	the
	same. 	The
Board
	stated:
Unit 	determinations 	are 	not 	intended 	to
	be
fixed 	for
	all
	time 	and, 	where 	no
representation
	is 	in 	place,
	it
	is
	appropriate
to 	consider
	a
	claim
	that
	circumstances
	have
changed. 	(p.
	,.)
In 	response 	to 	the 	ALJ's 	Order
	to
	Show
	Cause,
	the
Petitioners
	propose 	to 	present 	evidence 	to 	support
	their
	claim
that 	circumstances 	have 	changed.
	Petitioners 	assert 	that 	in 	the
5

ten 	years 	since 	the 	AGSE 	record 	was 	developed, 	graduate 	student
employees' 	career 	goals, 	interaction with 	professors, 	class 	size
and 	the 	effect 	of 	technology 	on 	student-teacher 	interaction 	have
changed. 	The 	Petitioners 	also 	note 	that 	in August 	1989, 	the
University 	recognized AGSE 	as 	the 	representative 	of 	employees 	at
UC 	Berkeley 	in 	the 	following 	classifications: 	Teaching
Assistant, 	Teaching 	Associate, 	Research 	Assistant 	and 	Teaching
Fellow. 	Petitioners 	also 	propose 	to 	present 	evidence 	of
collective 	bargaining 	between 	universities 	and 	graduate 	student
employees 	at 	nine 	other 	universities 	in 	the 	United 	States 	and
Canada.
Given 	PERB's 	clear 	precedent 	and 	policy 	that 	a 	claim 	of
changed 	circumstances 	should be 	considered 	where 	no
representation 	is 	in 	place, 	and 	since 	allowing 	such 	evidence
would 	not 	preclude 	the 	ALJ, 	or 	the 	Board 	subsequently, 	from
determining 	that 	HEERA 	does 	not 	cover 	the 	student 	employees 	in
question, 	the 	Board 	finds 	that 	the 	ALJ 	correctly 	determined 	that
the 	classifications 	at 	issue 	should 	not 	be 	dismissed 	at 	this
stage 	of 	the 	proceedings.
Adc~tionally, 	the 	University's 	request 	that 	the 	Board 	direct
the 	ALJ 	to 	postpone 	further 	hearings 	to 	give 	it 	time 	to 	prepare
its 	case, 	is 	denied. 	The 	ALJ 	issued 	his 	ruling 	in 	this 	matter 	on
March 	13, 	1995. 	At 	that 	point, 	the 	parties 	were 	on 	notice 	that
the 	issue 	of 	the 	student 	employees 	in 	question would 	be 	addressed
in 	subsequent 	hearings, 	the 	first 	of 	which 	is 	now 	scheduled 	for
October 	1995 	at 	UCLA. 	This 	amount 	of 	notice 	seems 	more 	than
6

adequate 	and, 	at 	this 	point, 	the 	need 	for 	any 	delay 	by 	any 	party
in 	order 	to 	prepare 	its 	case 	can 	best 	be 	assessed 	by 	the 	ALJ.
The 	University 	also 	requests 	that 	the 	Board 	stay 	the
proceedings 	in 	the 	three 	remaining 	representation 	cases, 	pending
completion 	of 	any 	appeals 	in 	the 	UC 	San 	Diego 	case. 	HEERA
section 	3565 	gives 	all 	employees 	the 	right 	to 	"form, 	join 	and
participate 	in 	the 	activities 	of 	employee 	organizations 	of 	their
own 	choosing 	for 	the 	purpose 	of 	representation 	on 	all 	matters 	of
employer-employee 	relations 	and 	for 	the 	purpose 	of 	meeting 	and
conferring." 	In 	order 	to 	protect 	this 	right, 	delays 	in
representation 	cases 	should 	be 	avoided. 	Since 	the
classifications 	in 	question 	in 	this 	matter 	are 	not 	at 	issue 	in
the 	UC 	San 	Diego 	case, 	it 	is 	unclear 	how 	awaiting 	a 	decision 	in
that 	case 	would 	serve 	to 	clarify 	the 	issues 	raised 	here.
Therefore, 	this 	request 	is 	also 	denied.
ORDER
The 	Board 	hereby 	AFFIP._l.liS 	the 	ALJ's 	Ruling 	on 	Order 	to 	Show
Cause 	in 	Case 	Nos. 	SF-R-806-H, 	SF-R-813-H and 	SF-R-815-H.
Members 	Carlyle 	and 	Johnson 	joined 	in 	this 	Decision.
7