Regents of the University of California (PERB 2107H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
UPTE, CWA LOCAL 9119,
Exclusive Representative.
Case No. SF-UM-626-H
PERB Decision No. 2107-H
May 10, 2010
Appearances: Littler Mendelson by Robert G. Hulteng, Joshua J. Cliffe, and Joshua D.
Kienitz, Attorneys, for Regents of the University of California; Leonard Carder by Katherine
Hallward, Attorney, for UPTE, CWA Local 9119.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the Regents of the University of California
(UC) to the proposed decision of an administrative law judge (ALJ). The unit modification
petition filed by UPTE, CWA Local 9119 (UPTE), sought to place all case manager
classifications for which registered nurse status is not a job qualification in the bargaining unit
represented by UPTE and place those case manager classifications for which registered nurse
status is a job qualification in the bargaining unit represented by the California Nurses
Association (CNA). 1 The ALJ found that the case manager classification shares a community
of interest with classifications in the unit represented by UPTE and ordered that unit modified
to include all case manager positions, except for certain supervisory positions.
1 CNA joined in UPTE's second amended petition but is not a party to this appeal.

The Board has reviewed the proposed decision and the record in light
of
UC's
exceptions, UPTE's response to the exceptions, and the relevant law. Based on this review, the
Board affirms the unit modification as ordered for the reasons discussed below. 2
FACTUAL BACKGROUND
When PERB established the systemwide bargaining units for UC in 1982, it divided
non-physician health care professional classifications into two units. Registered nurse (RN)
classifications received their own unit (NX unit) while all other non-physician health care
professional classifications were placed in a residual unit (HX unit). (Unit Determination for
Professional Patient Care Employees
of
the University
of
California (1982) PERB Decision
No. 248-H.) The HX unit currently includes approximately 4,000 employees in such
classifications as physician assistant, pharmacist, dietician, clinical laboratory scientist,
physicist, nuclear medicine technician, cytotechnologist, clinical social worker, social work
associate, child development associate, child life specialist, occupational therapist, recreation
therapist, music therapist, psychologist, audiologist, speech pathologist, orthopedist, genetic
counselor and psychometrist.
UC requested oral argument in this matter. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (United Teachers
of
Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453; Monterey County Office
of
Education (1991) PERB Decision No. 913.) Based on our review of the record, all of the
above criteria are met in this case. Therefore, UC's request for oral argument is denied.
2

Case Manager Job Duties and Functions
The principal duties of employees in the Case Manager group3 at issue in this case are
utilization review, discharge planning and overall care coordination. 	Some case managers
perform more specialized roles, such as assessing the need for patients to transfer to a UC
medical center from another facility or analyzing treatment data to maximize reimbursement
rates from third-party payors.
Utilization Review
Third-party payors (i.e., the government, through Medicare and Medicaid, and private
insurers) require documentation of conditions presented and treatments administered. 	This
documentation must be entered in the patient's chart with adequate detail and accuracy for
reimbursement purposes. Case managers retrospectively review the recorded conditions and
treatment interventions to ensure that they justify the length of stay in the hospital, particularly
in its high-cost units. Medicare reimbursement is governed by a published guidance for
utilization review ("Interqual") which many case managers are required to understand and
apply. Interqual methodology, which has also been adopted by many private insurers,
determines the level of services for reimbursement purposes based on severity of illness and
intensity of service. Reimbursement criteria for patients admitted for observation without a
confirmed diagnosis are strict and require close monitoring.
Case managers also monitor patients' movement through the hospital as their
conditions and diagnoses change. The goal is to ensure not only that the severity of illness and
The parties stipulated that the Case Manager group consists of "those currently
unrepresented health care professional employees (both RN and non-RN) working as 'Case
Managers' (and related variations on that title), including but not limited to all employees
systemwide in the 9170 payroll code and those 'AN Ills' [Administrative Nurse III] working as
Case Managers at the UCSD Medical Center. The duties assigned to this group of employees
include but are not limited to discharge planning and/or utilization review or some combination
of the two."
3

intensity of service are fully documented, but that the in-patient status level is appropriate to
those indicators. Communication with the insurer regarding the patient's condition may occur
on a daily basis and usually occurs when authorization to transfer to another facility is
required.
Discharge Planning
In theory, discharge planning for the case manager begins as early as admission to the
hospital. The case manager begins by investigating post-discharge placement options, the
patient's insurance status, and the patient's family support syst~m. Medical equipment needs
for in-home use will be investigated and arranged, as will in-home procedures like wound
dressing. Discharge planning activities include arranging for ambulance transportation, and
securing admission to skilled nursing care facilities, acute rehabilitation centers, and hospice
care. Coordination of the services of therapists of various types may also be involved.
A psychosocial patient assessment is a critical part of the process, including assessment
of the patient's functional independence, family dynamics, relevant behavioral observations,
and coping mechanisms. Discharge becomes problematic when the patient is uninsured,
homeless, mentally ill, has exhausted Medicare skilled-nursing-care benefits, or has no suitable
placement options. Identification of abuse in the home may require referrals to social workers
for professional assessment. Discussion and completion of advance directive forms often fall
to case managers. In this regard, case managers function like clinical social workers, with
whom they work closely, in addressing such issues as income and health insurance
maintenance ( e.g., identifying the need for, and assisting in securing, Family Medical Leave
Act and COBRA benefits).
4

Care Coordination
Care coordination is the overarching concept
of
case manager work. Case managers
monitor the patient's stay and serve as the primary point
of
contact for the patient and the
patient's family. 	The utilization review phase focuses on dynamic review
of
the patient's
diagnosis and course
of
treatment, while discharge planning focuses on coordinating hospital
care with post-discharge care. This coordinative function emphasizes monitoring the various
phases
of
treatment, particularly where more than one hospital department is involved or
complex discharge plans are required. In these cases, physicians in different departments are
assisted by communication regarding progress through different treatment specialties. A case
manager may be responsible for coordinating the transfer
of
a patient within the hospital from
a higher level
of
service to a lower one. Also, in teaching hospitals especially, where residents
rotate through hospital floors irrespective
of
the patient's particular course
of
care and bedside
nurses rotate through their eight-hour shifts, seamless health care delivery benefits
significantly from the enhancement
of
this function. 	One case manager described the care
coordination component
of
her work as focusing on the needs
of
the patient and patient's
family to ensure that all services required have been arranged by the time
of
discharge (i.e.,
"pulling the plan together" or "bringing the plan to life").
At medical centers like UCLA and UC Irvine, the coordination component embodies a
greater emphasis on facilitating or "managing" the work. At these medical centers, case
managers oversee discharge planning, delegating many of the necessary tasks to support staff.
These positions typically serve more as a "hub" or "quarterback" of the patient care process
and in theory allow (and expect) the case manager to operate more as a peer with the providers.
5

Division
of
Tasks
In the blended positions, case managers divide their time between discharge planning,
utilization review and care coordination, with the proportion allocated to each varying based
on the type
of
patient, hospital service, and course
of
treatment. Thus, in departments where
an initial admission is authorized for a minimum number
of
days, utilization revievv is lighter
because the admission review is completed on the first day and not subject to continual review
thereafter. In offering an across-the-board estimate, one case manager estimated that case
managers spend about 40 to 50 percent
of
their time on discharge planning. The record
suggests that utilization review time is somewhat less overall. Care coordination constitutes
the balance
of
the work.4 A typical case manager splits his/her time equally between
interacting with patients and their families, desk- and paper-work, and communication with the
interdisciplinary team.
UC Davis is unique among the medical centers in having moved toward a further
division
of
labor, separating utilization review from discharge planning. Within the utilization
review side
of
the Department
of
Patient Care Services, government coverage is further
differentiated from private insurance. Yet another group
of
case managers in the Department
of
Managed Care conducts medical necessity reviews
of
the population
of
capitated patients
(25 percent
of
all patients at the medical center) falling under the umbrella
of
the UC Davis
medical group's managed care network. They determine
if
a service is authorized under the
patient's plan, and
if
not, issue a denial
of
the referring physician's request for services (e.g.,
4 Witnesses offered estimates ranging from 20 to 85 percent for discharge planning and
from 15 to 50 percent for utilization review. UCLA's Santa Monica facility represents the
85-discharge-planning/15-utilization-review split. UCSF case managers described their work
as a 50/50 split. Utilization review is higher for pediatrics because of the need to verify a
qualifying diagnosis, and is very high for bone marrow transplant patients for whom daily
review is required. The low of 20 percent for discharge planning is associated with UCLA
case managers who delegate the implementation of discharge tasks to support staff.
6

elective surgery not qualifying for admission on an in-patient basis). This function is primarily
a reimbursement function, and as distinguished from most case managers, places them more in
an adversarial role as representative for the payors.
UC Davis also employs transfer center case managers, positions specializing in
communication between other medical facilities to screen and act on requests to transfer into
the hospital. The center is a central point for identifying patients qualifying for emergent care,
presenting conditions appropriate for teaching purposes, and needing the higher level of care
which UC Davis provides as a Level I trauma center. This screening includes obtaining
information on medical conditions as well as discharge planning needs. 	For example, the
transfer center case manager may direct a patient needing intravenous-line (IV) therapy to a
skilled-nursing facility rather than allow admission to the hospital because the underlying
condition does not qualify for reimbursement. Case managers consult closely with physicians
on these cases and refer to detailed written guidelines. These case managers are also
responsible for monitoring hospital patient anti-dumping obligations under the federal
Emergency Medical Treatment and Active Labor Act. The position involves a lot of "customer
service" in terms of dealing with outside parties.
Specialization of another kind is found in the diagnostic related group (DRG) case
managers, employed at UC Irvine and UC San Diego, and soon to be employed at UC Davis.
These case managers, like transfer center case managers, are not assigned caseloads. This
form of utilization review focuses on chart review but is more analytical in nature. DRG case
manager chart review focuses on patients grouped by severity of illness because group patient
acuity is a predictor of hospital mortality rates. 	Accurate and prompt determination of patient
acuity at admission as well as secondary diagnoses are expected to result in improved mortality
rates and thereby improve cost-effective delivery of care. The low mortality rates in relation to
7

patient acuity permit the medical center to be rated competitively with other hospitals in terms
of quality assurance aspects of care. DRG case managers are responsible for identifying and
communicating chart documentation recommendations directly to the providers, often going
out on the floors to correct identified problems. The position is limited to individuals with an
RN license. At one medical center, interchangeability between utilization review case
managers and DRG case managers is being achieved through cross-training.
Qualifications, Training and Skills
Case management is an acquired discipline that involves a unique blending of nursing
and social work skills. There is no academic degree or professional schooling for such work
but some case managers hold a certificate from the American Case Management Association in
the discipline. The membership of the American Case Management Association is a mix of
those with nursing degrees and those with social work degrees. The presidency of the
organization alternates between disciplines. One case manager testified that she looks to this
type of organization to advance her understanding of the field.
Each of the medical centers has developed qualifications for the case manager position
incorporated in its job descriptions and job postings. At UCSF and UC Davis, most of the
positions require either a nursing degree (either bachelors or masters) or a masters of social
work degree; they do not require RN licensure. At UC Davis, transfer center case managers
must have an RN license. For utilization review positions, an RN license is preferred.5 At
UCLA, which, like UCSF, has only the blended positions, the job descriptions have been
written to require active RN licensure. At UC Irvine and UC San Diego, all of the positions
5 The job description states that graduation from a nursing school is required, as is
experience in an acute care setting, though discharge planning or case management experience
may substitute for the experience requirement. All utilization review case managers in the
UC Davis Patient Care Services Department are currently RNs.
8

are limited to RNs with active licensure. Despite the RN requirement at UC San Diego and
UCLA, each employs a case manager (in UCLA's case, two) performing the full range of
duties who is classified as a social worker. 6
Both the UC San Diego and UCLA managers conceded that the RN license requirement
could be dispensed with based on industry practice. UCLA had a practical reason for the
limitation: the decision to avoid a jurisdictional dispute with UPTE over unit placement. Even
if RN licensure were never to become a requirement systemwide, it would likely be a preferred
background at the majority of medical centers because of the ease of new employee
orientation, particularly in regard to utilization review. 	Still, much of utilization review is
administrative in character in that the case manager is not interpreting medical information or
symptoms. Rather the case manager is checking the chart for specific benchmarks for severity
of illness and intensity of service, such as frequency of taking vital or neurological signs in
physician orders to nurses, types of medication prescribed, and symptoms recorded.
In hiring, UC medical center managers look primarily for prior case manager work
experience, preferably in an acute care setting. Though such experience often consists of case
management work itself, the critical components are the ability to work in a fast-paced
environment with understanding of UC's complex institutional requirements, think critically,
exercise independent judgment, problem-solve, respond to multiple demands and crisis
situations, and communicate effectively with health care professionals, third-party financial
representatives, patients, and family members. At facilities where the position conforms to the
blended-discipline model, care coordination managers do not distinguish between those with
RN backgrounds and those with social work backgrounds. In-patient social workers at UCSF
6 In UC San Diego's case, a social work background was preferred due to the nature of ,
the position - in a dialysis unit - and necessity for specific relevant experience.
9

also perform discharge planning, and the manager there believes that social workers have many
of the same skills as case managers, such as crisis management, communication, and problem-
solving.
Due to the specialized nature of case manager work, the medical centers have
established extensive training and orientation regimens lasting up to six months. UC Irvine
described its training for hires without prior case manager experience as an apprenticeship.
This training typically consists of "shadowing" an experienced case manager. 	Such training is
necessary regardless of the employee's prior experience as an RN or social worker. Because of
the highly technical nature of their work, DRG case managers undergo an additional 120 hours
of training beyond what other case managers receive. Indeed, only current case managers are
eligible to move into a DRG case manager position.
There is a significant degree of similarity in terms of skills and technical knowledge
between case managers and both NX and HX unit members. There was considerable
testimony that RNs, social workers, and case managers view themselves as patient advocates,
and indeed those who are licensed RNs are obligated by the nursing practice statute to conduct
themselves professionally as such. Case managers, RNs and social workers have similar skill
sets in terms of psychosocial assessment ability. To the extent case managers advocate and
arrange for care and assist patients and their families to navigate through the hospital stay, they
do closely resemble clinical social workers in the more general sense.
Employee Interchange and Interaction
Due to the specialized nature of the case manager position and because the medical
centers look for candidates with prior case management experience, there is limited movement
into the position by employees in the HX and NX units. Although many case managers may
have previously worked as RNs or clinical social workers, voluntary movement out of the case

manager position to RN or social work positions was not indicated in the record, perhaps
owing to the higher compensation levels.7
Generally, clinical social workers, or other similar HX unit employees, do not substitute
for case managers in cases of absence or staff shortage, or vice versa. However, to the extent
that several of the medical centers have recruited case managers from the ranks of clinical
social workers, there is potential for substitution. Two medical centers acknowledged limited
use of social workers to substitute or fill-in on weekends for case managers but generally not
for the utilization review aspects. UCLA contracts with a case manager registry for additional
staffing needs.
Due to the specialization of function of the health care professionals on the treatment
team, contact and interaction between case managers and other health care professionals varies
depending on the course of treatment and department. But it can be said that there is regular
interaction between the case manager as the hub (or at least shared hub - with bedside nurses)
and other HX unit professionals, because of the need to coordinate the array of services
provided as the patient moves toward discharge. In discharge planning, the case manager takes
the lead of a team that typically includes a social worker, therapists, attending nurses,
physicians, and patient service representatives from the financial department. For example, a
case manager will consult with the bedside nurse for the purpose of confirming that, prior to
discharge, the patient has been educated about medications and how to self-administer them.
At UC San Diego, each bedside nurse presents her/his patients daily to a team consisting of the
case manager, a social worker and a financial representative. At UCLA, the case manager
7 From the backgrounds of case managers who testified, it appears that case manager is
a career typically undertaken after work as a clinical nurse or social worker, and not vice versa.
A number of social workers who previously handled discharge planning transitioned into case
manager positions.
11

"rounds" with the physicians, checking with each patient on the floor. 	As a general rule, case
managers have most frequent interaction with the treating physicians, who direct the patient
care. 8 To the extent that staff meetings occur within the care coordination departments, case
managers are more likely to have extended interaction with clinical social workers than
bedside RNs. Transfer center case managers have regular (telephone) contact with physicians
inside and outside
of
the hospital, discharge planners, nursing staff, and staff who monitor bed
space. By virtue
of
their focus on diagnosis documentation and corrective action, DRG case
managers have frequent interaction with physicians and other case managers.
Working Conditions
Case managers spend a significant amount
of
time on the hospital floor interacting with
patients, their families and the attending health care providers, including nursing staff and
other health care professionals (social workers, physical therapists, pharmacists, etc.). Case
managers also spend a considerable amount
of
time away from patients. They are typically
assigned an office or cubicle in a location separate from the hospital floor but generally close
to where their patients receive care. Their office desk is where they make telephone caiis and
complete the paperwork associated with the position. They use computers. Not having a
caseload, transfer center case managers work in offices devoted solely to this function away
from the patient floors.
Case managers work professional hours, meaning they are held accountable for
completing all
of
the tasks associated with the caseload or the position. They generally work a
40-45 hour work week, five days per week, with flex-schedule alternatives available at some
medical centers. Demands for weekend case manager coverage are not high, and medical
8 A UC San Diego case manager testified she interacted 50 percent of the time with
physicians, 15 to 20 percent with other case managers, and the same amount with bedside
nurses.
12

centers have varying methods of arranging adequate staffing, such as voluntary rotations and
compensated time-off. Transfer center case managers at UC Davis and UC Irvine work on a
round-the-clock basis.
With the exception of UC Davis, case managers are salaried. Systemwide they have a
wide range of compensation, from a low of approximately $55,000 to a high of $105,000,
annually. 	Compensation depends to some degree on geographic region, with higher top ranges
at UCLA and UCSF. 	There is consistency at the bottom end of the scale. The manner in
which compensation is calculated varies, with some medical centers employing an hourly, and
others a yearly rate. Case managers as a group are comparable to the more highly
compensated classifications in the HX and NX bargaining units (e.g., pharmacists, physician
assistants, physicists, nurse practitioners, and nurse anesthetists).
HX and NX unit members, by contract, are entitled to layoff protections, including the
protection of seniority. Such provisions do not apply to case managers. But nothing suggests
the absence of these protections is driven by operational necessity.
Permanent status employees systemwide are eligible for the same set of retirement
benefits (e.g., UC's retirement plan, defined contribution accounts, etc.). The same holds true
for access to UC's plans for health and welfare benefits, including medical, dental, vision care,
disability insurance, and life insurance.
Departmental Organization and Supervision of Case Managers
The medical centers are organized by service department (intensive care,
medical/surgery, cardiology, neurology, etc.). Most case managers are assigned to a specific
department or service and a caseload of patients in that department. At the UCLA
Santa Monica Orthopedic Hospital, case managers are cross-trained to cover all specialties.
13

Unlike nursing assignments, which rotate on a shift-basis, there is one case manager for each
patient.
Case managers at UCSF, UCLA, UC Irvine and UC San Diego are assigned to a care
coordination department. 9 Clinical social workers are also assigned to care coordination
departments at UCSF, UCLA, UC San Diego, and UC Davis. Where case managers work in
care coordination departments with social workers, they share upper level supervision. Case
managers at UC Irvine and a portion
of
those at UC Davis are assigned to departments
consisting solely
of
case managers. At UC Davis, as distinguished from the other medical
centers, case managers handling only utilization review and transfer center case managers are
assigned to the division
of
patient care services, sharing upper level supervision with clinical
nurses.
Except for UC San Diego, all care coordination departments ultimately report to the
chief medical officer. Chief medical officers are typically responsible for hospital functions
such as risk management, licensing, quality assurance, and administrative supervision
of
the
physician staff. At UC San Diego, the department reports to the chief nursing officer. At
UC Davis, an organization separate from the medical center, known as the UC Davis Health
System (a managed care network), houses utilization review case managers reporting to a nurse
manager and ultimately the :tvfanaged Care chief medical officer.
9 UC San Diego's department was named the Clinical Resource Management
Department before being renamed Care Coordination. Care Coordination are also the words
used in the name for the departments at UCLA and UCSF. UC Irvine's department is the
Department of Outcomes, Case Management. UC Davis assigns case managers to two
departments, Department of Clinical Social Services and Patient Care Services Department,
with only the former department handling discharge planning. Case managers are also
assigned to the Department of Managed Care and engage strictly in a form of utilization
review.
14

Establishment and Expansion
of
the 9170 Case Manager Classification
Because the Case Manager classification did not exist in 1982, it was not considered in
PERB's unit determination proceedings for the UC system. In 1994, employees at UC Irvine
began performing case management work under the working title
of
"case manager." This
position soon spread to UC San Diego, UCLA, UC Davis and UCSF. UC did not create a new
classification for case managers at this time. Rather, it placed these positions in existing non-
represented classifications such as Administrative Nurse and Administrative Analyst. 	UPTE
witnesses testified without contradiction that it is the classification, not the position title, that
determines bargaining unit placement.
Prior to 1997, the HX unit was unrepresented. In that year, UPTE was certified as the
exclusive representative
of
the HX unit after it prevailed in a consent election. Prior to the
election, UPTE and UC negotiated to agreement on the classifications that would be allowed to
vote in the election. Case managers were not discussed. Following certification, UPTE and
UC began negotiations for a memorandum
of
understanding (MOU).
In September 1998, UC Irvine submitted a draft proposal to the University
of
California
Office
of
the President (UCOP) for a systemwide case manager title. UCOP approved the new
Case Manager title code
of
9170 in September 1999. The classification was not placed in an
existing bargaining unit.
UC Irvine reclassified its case managers from Administrative Nurse II to the 9170 Case
Manager classification in 2002. The 9170 classification was implemented at UCLA in 2003.
UPTE filed a grievance that year asserting that HX unit social workers were being improperly
reclassified to the 9170 classification. UPTE agreed to settle the grievance based on UC's
representation that the 9170 classification would be limited to employees with RN licensure.
15

UCSF adopted the 9170 classification in 2004. That same year, UPTE filed a grievance
similar to the one at UCLA, alleging that UCSF was improperly reclassifying HX unit social
workers to the 9170 classification. Following unsuccessful efforts to resolve the grievance,
UPTE filed the instant unit modification petition on May 25, 2005. 10
UC Davis began to use the 9170 classification in March 2006. On September 27, 2006,
UPTE filed an amended petition to include UC Davis case managers and also to allege that UC
San Diego was employing a case manager outside of the HX unit. Meanwhile, sometime in
mid-2006, UC San Diego reclassified its case managers to Administrative Nurse III (AN III), a
classification outside of the HX unit. UPTE filed a second amended petition on January 5,
2007, to include these UC San Diego case managers.
At the time of hearing there were approximately 163 case managers covered by the
petition, including approximately 144 classified under the 9170 Case Manager title and the
remainder (at UC San Diego) classified as AN IIIs. 11
DISCUSSION
Neither party has excepted to the ALJ's ruling that the UC Irvine transfer center case
manager/supervisor and the three UCLA lead case managers (classified as Clinical Nurse
Specialist, Supervisor) are subject to exclusion from the HX unit because they meet the criteria
for "supervisory employee" under section 3580.3 of the Higher Education Employer-Employee
10 UPTE simultaneously filed an unfair practice charge (Case No. SF-CE-757-H)
alleging that UC unilaterally transferred work out of the bargaining unit by reclassifying HX
unit social workers to the unrepresented 9170 classification. UPTE withdrew the charge when
it filed its second amended petition.
11 Ten of these positions, all at UC Irvine, are listed as per diem employees. The
parties' MOUs indicate that per diem employees are not excluded from the unit. However,
both acknowledge that maintenance of such status is determined by UC policy, which may
vary by campus. No determination is made as to whether the pyr diem employees at issue here
actually meet those requirements.
16

Relations Act (HEERA) 12 . Nor has either party excepted to the ALJ's conclusion that the
remainder of the positions in the stipulated Case Manager group are not supervisory.
Accordingly, the ALJ's ruling regarding the supervisory status of the various positions in the
Case Manager group remains binding upon the parties, but shall have no precedential effect
with respect to other cases. (PERB Regs. 32215 and 32300(c); 13 City of Porterville (2007)
PERB Decision No. 1905-M; Palos Verdes Peninsula Unified School District (1979) PERB
Decision No. 96.)
Additionally, it appears that CNA does not wish to participate in this appeal. Although
it joined in UPTE's second amended petition and participated in the hearing, CNA did not file
exceptions to the proposed decision, nor did it join in UPTE's response to the exceptions or file
its own response. Further, UPTE states in its response to UC's exceptions that "CNA and
UPTE agreed to support any decision that would place the entire Case Manager group in one
bargaining unit if that was how PERB determined the appropriate community of interest."
Viewing CNA's inaction in tandem with its purported agreement with UPTE, we conclude that
CNA has withdrawn as a party to this matter.
In light of the above, the issue before the Board is whether the positions in the
stipulated Case Manager group should be added to the HX unit or remain in non-represented
classifications. Before turning to that issue, however, it is necessary to address UC's
12 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
13 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. PERB Regulation 32215 provides, in relevant part: 	"Unless expressly adopted
by the Board itself, a proposed or final Board agent decision, including supporting rationale,
shall be without precedent for future cases." PERB Regulation 32300(c) provides in full: 	"An
exception not specifically urged shall be waived."
17

contention that PERB should deny UPTE' s petition even if the Case Manager group meets the
statutory criteria for inclusion in the HX unit.
1. 	UC's Contentions Regarding the Unit Modification Petition
UC contends that PERB should deny UPTE's petition because: (1) UPTE waived its
right to file a unit modification petition because it did not file the petition immediately upon
learning of the creation of the case manager position; and (2) UPTE failed to show proof of
majority support among the employees it seeks to add to the HX unit.
a. 	Waiver
UC claims that UPTE was aware of the 9170 Case Manager classification at least as
early as 1999, and certainly no later than 2003, yet did not file a unit modification petition until
May 2005. UC also points out that UPTE failed at the bargaining table in 2003 to have case
managers included in the HX unit. According to UC, both the filing delay and the inability to
obtain the unit modification through bargaining constituted a waiver of UPTE's right to file the
instant petition.
HEERA section 3563, subdivision (a) grants PERB the authority "(t]o determine in
disputed cases, or otherwise approve, appropriate units." PERB's unit modification procedure
is the proper mechanism by which to resolve disputes over unit placement. (The Regents of the
jurisdiction to resolve such disputes. (Trustees of the California State University (2005) PERB
Order No. Ad-347-H; Hemet Unified School District (1990) PERB Decision No. 820.)
In Hemet Unified School District, supra, the classified employee organization and the
school district agreed in writing to exclude certain classifications from the bargaining unit.
The employee organization then filed a unit modification petition with PERB to add those
classifications to its unit. The Board held that "PERB is empowered to resolve any unit
18

placement 'disputes' and the parties cannot, by agreement or otherwise, divest the Board of
such jurisdiction." Thus, a party's right to file a unit modification petition seeking to add
unrepresented classifications to an established bargaining unit, and PERB' s authority to
resolve the underlying placement dispute, cannot be waived either expressly or by implication.
Moreover, neither HEERA nor PERB Regulations establish a specific time period in which
such a unit modification petition must be filed. 	(Cf. HEERA § 3577, subd. (b) [listing time
periods for filing initial representation petition]; PERB Reg. 32776(c)-(g) [listing time periods
for filing decertification petition]; PERB Reg. 51680(b) & (c) [listing time periods for filing
severance petition under HEERA].) Accordingly, UC's claim that UPTE waived its right file
the instant petition is without merit.
b. 	Proof of Majority Support
UC also asserts that UPTE's petition must be denied because it was not accompanied
by proof of majority support among the employees sought to be added to the unit. UC argues
that proof of majority support is required by PERB regulations, National Labor Relations
Board (NLRB) case iaw and the doctrine of employee free choice.
1. 	PERB Regulation 32781
PERB Regulation 32781 governs petitions for unit modification. UPTE's petition was
fi ],,,-111nrlPr	..l.\,,IY, 1-A-..l..1.Y.V.1.. ""b""Ctir-.ns	IJ\.,J. ._,'-' 	.L'-1.L 	lb)(2)	\ 	' nrh1ch	V\' .L.L 	author1'zes PERB "[tlo m,;ilrp tPl'hn1l'e>l l'he>nrrpc, tr.	J 	.L .L\..l,L'\...'-' 1,VVJ..L.l..l...l.VU-..l. V..l..1..1,,,l,.1..J..E,VU \..\J ,..Jc,r1f\r	V.1.U,.1...1...l.J
or update the unit description," and (b )(3), which authorizes PERB "[t]o resolve a dispute as to
unit placement or designation of a new classification or position." Though not cited in UPTE's
petition, subsection (a)(l) authorizes PERB to "add to the unit unrepresented classifications or
positions."
19

UC argues that subsection (e)(1) of the regulation gives PERB discretion to require
proof of majority support for UPTE among the Case Manager group. However, PERB case
law and the regulation's history do not support UC's interpretation of subsection (e)(l).
In State of California, Department of Personnel Administration (1989) PERB Decision
No. 776-S, an employee organization filed a unit modification petition to add approximately
2,000 unrepresented employees to a unit of approximately 9,000 employees, an increase of
slightly more than 22 percent. At that time, PERB Regulation 32781(f) allowed PERB
discretion to require proof of majority support on a case-by-case basis. Noting that PERB had
consistently required proof of majority support when a petition "seeks to add a substantial
number of employees to an established bargaining unit," the Board upheld the regional
director's determination that proof of majority support among employees in the classifications
to be added to the unit was required because the addition of so many employees "would
constitute a substantial change in the structure of that unit," thereby creating a question
concermng	• 	representat10n.	• 	14
In 2006, PERB amended the regulation to incorporate the "ten percent rule" from State
of California, Department of Personnel Administration, supra. The amendment was intended
to eliminate ambiguity and add clarity regarding when majority
proof of support is required for a petition that seeks to add
unrepresented positions to a unit. 	Section 32781(e) ... states that
PERB "may require" such support, but the regulations do not
provide criteria for when PERB "should" require support. Use of
a standard whereby support was required if the positions to be
added equal 10 percent or more of the number of employees in
A "question concerning representation" arises when there is a legitimate doubt about
whether the union has majority support in the bargaining unit. 	(See International Union of
Operating Engineers, State of California Locals 3, 12, 39 and 501, AFL-CIO (California State
Employees' Association, SEIU, AFL-CIO) (1984) PERB Decision No. 390-S [decertification
petition raises question concerning representation]; Pittsburg Unified School District (1983)
PERB Decision No. 318 [representation petitions filed by competing employee organizations
created question concerning representation].)
20

the established unit was approved in a Board decision (State of
California, Department of Personnel Administration (1989)
PERB Decision No. 776-S) but never adopted as "the standard"
by the Board. The proposed amendments to section 32781 ...
would incorporate the 10 percent standard and make it
mandatory.
(Cal. Reg. Notice Register 2005, No. 51-Z, p. 1773.)
Subsection (e)(l) currently provides in full:
If the petition requests the addition of classifications or positions
to an established unit, and the proposed addition would increase
the size of the established unit by ten percent or more, the Board
shall require proof of majority support of persons employed in the
classifications or positions to be added.
UC argues that the 2006 amendment left untouched PERB's discretion to require proof
of majority support when the number of positions to be added is less than ten percent of the
established unit. We find no such "residual" discretion in the amended regulation.
"[ A]dding a large group [of employees] to a preexisting unit calls into question the
majority status of the representative in the acquiring unit." (Salinas Union High School
District (2002) PERB Order No. Ad-315.) In State of California, Department of Personnel
Administration, supra, and subsequent cases, the Board determined that increasing the size of a
bargaining unit by ten percent or more through addition of unrepresented positions necessarily
creates a question concerning representation. PERB Regulation 32781(e)(l) codifies this
determination. The necessary implication from the amended regulation, in light of PERB case
law, is that increasing the unit by less than ten percent does not call into question the
incumbent union's majority support. Therefore, PERB may not require proof of majority
support when a unit modification petition seeks to add unrepresented positions that total less
than ten percent of the established unit.
21

11. 	NLRB Accretion Cases
UC argues that proof of majority support among the Case Manager group is required
because those positions have been historically excluded from the HX unit. In support of this
argument, UC cites NLRB case law that requires a showing of majority support among the
positions to be added when the positions have been "excluded for a significant period of time"
from the established unit. (Laconia Shoe Co. (1974) 215 NLRB 573, 576; Union Electric Co.
(1975) 217 NLRB 666, 667.)
Contrary to the NLRB, PERB has never considered the length of time the classification
was excluded from the established unit in determining whether a showing of majority support
is required. Instead, PERB has always looked to the number of classifications or positions to
be added to the established unit. (State of California, Department of Personnel
Administration, supra.) Indeed, PERB Regulation 32781(e)(l) makes no mention ofrequiring
proof of support based upon any time period of exclusion from the unit. Therefore, because it
appears to be contrary to PERB case law and regulations, we decline to incorporate the rule
from Laconia Shoe, supra, and its progeny into PERB's unit modification procedures. 15
As UC points out, the Board in Trustees of the California State University (2004)
PERB Order No. Ad-342-H, quoted the following passage from Union Electric Co., supra:
Unit clarification, as the term itself implies, is appropriate for
resolving ambiguities concerning the unit placement of individuals
who, for example, come within a newly established classification
of disputed unit placement or, within an existing classification
which has undergone recent, substantial changes in the duties and
responsibilities of the employees in it so as to create a real doubt as
to whether the individuals in such classification continue to fall
15 Hemet Unified School District, supra, further supports this position. While that case
involved PERB' s jurisdiction over a unit modification petition, not whether proof of majority
support is required, the decision suggests that the parties' conduct with regard to exclusion of
particular classifications from a bargaining unit can have no effect on PERB' s unit
modification procedures.
22

within the category-excluded or included-that they occupied in the
past. Clarification is not appropriate, however, for upsetting an
agreement of a union and employer or an established practice of
such parties concerning the unit placement of various individuals,
even if the agreement was entered into by one of the parties for
what it claims to be mistaken reasons or the practice has become
established by acquiescence and not express consent.
Following this quotation, the Board noted that the union could not use a unit clarification
petition to bring into the bargaining unit a substantial number of employees who had been
excluded from the unit by stipulation of the parties. Later in the decision, however, the Board
stated that such a stipulation has no bearing on whether excluded classifications should be
added to an established unit pursuant to a unit modification petition, citing State of California,
Department of Personnel Administration (1989) PERB Decision No. 727-S. In light of the
decision's ambiguity on this issue, we cannot conclude that the Board adopted the Union
Electric/Laconia Shoe rule. However, to the extent Trustees of the California State University,
supra, can be read to adopt that rule, it is hereby overruled.
For the above reasons, we conclude that the length of time a particular classification has
been excluded from the bargaining unit is irreievant to whether proof of support is required
among the positions to be added to the unit pursuant to a unit modification petition.
Consequently, we need not decide whether there was an established practice of excluding the
Case Manager group from the HX unit.
111. 	Employee Free Choice
Finally, UC argues that proof of majority support is required by the doctrine of
employee free choice. HEERA sections 3560, subdivision (e), and 3565 grant higher
education employees the right to choose which employee organization, if any, will represent
them in their employment relations with the employer. However, the Legislature has
subordinated this right of employee free choice to the overriding policy of avoiding
23

proliferation of bargaining units. (Los Angeles Unified School District (1998) PERB Decision
No. 1267, citing Assem. Advisory Council on Public Employee Relations, Final Report
(March 15, 1973) p. 86.) Thus, while employees have the right to choose which employee
organization, if any, they want to represent them, they have no right to choose the bargaining
unit in which their classification or position is placed. (Elk Grove Unified School District
(2004) PERB Decision No. 1688; Salinas Union High School District, supra.) Accordingly,
the doctrine of employee free choice does not compel PERB to require proof of majority
support when a unit modification petition seeks to add unrepresented positions that total less
than ten percent of the unit to which they would be added.
2. 	Proper Unit Placement of the Case Manager Group
In determining the appropriate unit placement of a classification, it is necessary to
utilize the unit determination criteria from the applicable statute. (Trustees of the California
State University (2007) PERB Decision No. 1881-H.) HEERA's unit determination criteria are
set forth in section 3579, subdivision (a):
In each case where the appropriateness of a unit is an issue, in
determining an appropriate unit, the board shall take into
consideration all of the following criteria:
(1) The internal and occupational community of interest among
the employees, 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
with the employer, the extent to which the employees belong to
the same employee organization, 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
factors such as work location, the numerical size of the unit, the
relationship of the unit to organizational patterns of the higher
24

education employer, 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 the higher education employer and its employees to serve
students and 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 employee groups or any proliferation of units
among the employees of the employer.
25
In its original UC unit determination proceedings, the Board found the following about
the HX unit:
We find that the employees in this requested unit share a common
goal and perform functionally related patient care services. All
possess advanced training and experience and/or education which
enables them to provide specialized patient care. All work in
medical settings, some performing 'hands-on' patient care and
others performing vital laboratory functions in furtherance of the
common health care goai.
Having granted the requested unit of registered nurses, it is deemed
appropriate to grant the requested residual unit. This unit,
containing as it does the bulk of the remaining patient care
professionals, will serve the statutory goal of avoiding impairment
of the University's operational efficiency and avoid potential
undue unit proliferation. It will further provide employees with
their right to units in which they may be effectively represented.
(Unit Determination for Professional Patient Care Employees of the University of California,
supra.)
Applying the statutory criteria in light of the Board's earlier findings, we conclude that
the Case Manager group is properly placed within the HX unit for the following reasons.

a. 	Community of Interest Factors
Like members of the HX unit, case managers are involved in patient care in a
specialized capacity. Most case managers have patients assigned to them, as do many of the
residual health care professionals. Case managers' interaction with patients is more episodic
than continuous, another characteristic of HX unit classifications. Case managers do not
provide "hands on" patient care like the various therapists in the HX unit. However, they do
much of their work in acute care settings alongside physicians, nurses and other HX unit
members as part of an interdisciplinary team. Thus, to the extent they work in an adjunct
capacity to the direct patient care process by assisting the providers, case managers share much
in common with residual health care professional classifications working in a similar capacity.
Case managers also share common skills and duties with HX unit classifications. 	For
example, discharge planning involves psychosocial assessment similar to that performed by
clinical social workers in the HX unit. Indeed, UC admitted that it shifted discharge planning
duties from HX unit social workers to case managers without any change in those duties.
Moreover, at some medical centers HX unit social workers perform discharge planning duties
when case managers are absent. To the extent case managers advocate and arrange for care
and assist patients and their families navigate through the hospital stay, they closely resemble
clinical social workers in the more general sense.
The utilization review and case coordination functions appear unique to case managers.
However, in the context of a residual professionals unit, this uniqueness does not preclude
finding a community of interest. Many of the classifications in the HX unit share little, if any,
duties. For example, audiologists and dieticians have largely different duties and functions yet
are both members of the HX unit. Thus, the fact that some but not all of the case manager
26

duties overlap with those of HX unit classifications weighs in favor of placing case managers
in the HX unit.
Case managers also possess advanced educational qualifications and skills like HX unit
classifications. Unlike many HX classifications, case managers do not hold a license in their
particular field, though some do hold a certificate in the discipline. Most of the case manager
positions require either a nursing degree or a masters of social work degree. In hiring case
managers, the critical components are the ability to work in a fast-paced environment with
understanding of UC's complex institutional requirements, think critically, exercise
independent judgment, problem-solve, respond to multiple demands and crisis situations, and
communicate effectively with health care professionals, third-party financial representatives,
patients, and family members. These qualifications and skills are similar to those required for
HX unit classifications.
Case managers share similar working conditions with HX unit classifications. 	Case
managers spend a significant amount of time on the hospital floor interacting with patients,
their families and the attending health care providers, including nursing staff and other health
care professionals. Case managers generally work a 40-45 hour work week, five days per
week, with flex-schedule alternatives available at some medical centers. Case managers do not
regularly work weekends but some participate in voluntary rotations to ensure adequate
weekend staffing. Only transfer center case managers at UC Davis and UC Irvine work on a
round-the-clock basis. With the exception of UC Davis, case managers are salaried. 	Their
compensation is comparable to the more highly compensated classifications in the HX unit
(e.g., pharmacists, physician assistants, and physicists). Permanent status case mangers receive
the same health and retirement benefits as other UC employees of the same status.
27

The affinity with the HX unit is also demonstrated by the fact that case managers for
the most part have been placed in care poordination departments that are not supervised
together with the nursing staff. More often they share supervision with social workers
represented by UPTE. For example, at UCSF case managers and social workers are assigned
work and evaluated by the same individual. The same holds true for non-RN case managers at
UC Davis.
The fact that the Case Manager group is currently unrepresented does not weigh against
finding a community of interest. The parties have never agreed, explicitly or implicitly, that
case managers do not belong in the HX unit. On the contrary, UPTE has consistently disputed
UC's determination that the 9170 Case Manager classification falls outside of the HX
bargaining unit. Thus, "the history of employee representation with the employer" is of little
relevance in this case.
b. 	Other Statutory Criteria
Adding the Case Manager group to the HX unit would not have a negative effect on
UC's efficient operations. While UC would be required to meet and confer concerning an
additional 163 employees, we find this additional obligation minimal in light of the thousands
of currently represented employees at UC.
Further, adding the Case Manager group to the HX unit would further the statutory
objective of "providing the employees the right to effective representation." UPTE, as
representative of a diverse set of occupational groupings, is well suited to managing the
dynamics of a pluralistic bargaining unit, and so placement of case managers in the HX unit is
likely to ensure responsive yet even-handed representation.
UC contends that application of the statutory unit determination criteria leads to the
conclusion that case managers "share a distinct community of interest with each other" rather
28

than with HX unit classifications. It goes without saying that every occupational group has
some internal community of interest. However, in the health care field, only two occupational
groups, physicians and nurses, have been found to have such a separate and distinct community
of interest that they require placement in their own bargaining unit. ( Unit Determination for
Professional Patient Care Employees of the University of California, supra; Mercy Hospitals
of Sacramento (1975) 217 NLRB 765.) Following UC's argument to its logical end would
result in either the abolition of the HX unit or creation of a separate bargaining unit for each
classification within the existing unit. Neither result is consistent with the criteria set forth in
HEERA section 3579, subdivision (a) or the overall purposes of HEERA. (Unit Determination
for Professional Patient Care Employees of the University of California, supra [creation of
residual health care professionals unit avoids "potential undue unit proliferation" and provides
"employees with their right to units in which they may be effectively represented"]; see Mercy
Hospitals of Sacramento, supra [noting Congressional intent to avoid undue proliferation of
bargaining units in the health care industry].)
Based on the community of interest factors and pertinent statutory criteria, we conclude
that the stipulated Case Manager group should be added to the HX unit, an occupationally
diverse unit of health care professionals involved in adjunct forms of patient care.
29

ORDER
For the above reasons and based upon the entire record in this case, it is hereby
ORDERED that the unit modification petition of UPTE, CWA Local 9119, to add the positions
named in the stipulated Case Manager group to the residual health care professionals unit is
GRANTED, with the exception of the UC Irvine transfer center case manager/supervisor and
the three UCLA lead case managers classified as Clinical Nurse Specialist, Supervisor.
Member Wesley joined in this Decision.
Member McKeag' s dissent begins on page 31.
30

McKEAG, Member, dissenting: I respectfully disagree with the majority's ruling that
the case managers should be put in the HX bargaining unit represented by UPTE, CW A
Local 9119 (UPTE). For the reasons set forth below, I believe the unit modification petition
filed by UPTE should be dismissed.
HEERA section 3565 provides:
Higher education employees shall have 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. Higher education employees shall also have the right
to refuse to join employee organizations or to participate in the
activities of these organizations subject to the organizational
security provision permissible under this chapter.
In the instant case, the record shows that the case managers were satisfied with their
unrepresented status and had no interest in being represented by UPTE. However,
notwithstanding Section 3565, the majority ruling granted UPTE's unit modification petition
and ordered the case managers into the HX bargaining unit.
In reaching this decision, the majority concludes that PERB Regulation 32781 ( e)(1)
prohibits the Board from ordering proof of support. I respectfully disagree. PERB
Regulation 3278l(e)(l), by its express terms, applies only to situations in which a unit
modification petition seeks to increase the size of an existing unit by ten percent or more. This
regulation, however, is silent regarding situations in which a unit modification petition seeks to
increase the size of an existing unit by less than ten percent. In order to preserve the rights
afforded by HEERA section 3565, I would find that that the Board possesses the discretion to
order proof of support in such cases when there is a legitimate question concerning the
representation of the employees who are the subject of the petition.
31

In the instant case, the record supports the conclusion that the case managers are
satisfied with their unrepresented status but, if compelled to join a union, would prefer to be
represented by the California Nurses Association. 	Based on the foregoing, I believe there is a
legitimate question concerning the representation of the case managers. Accordingly, the
Board should order UPTE to provide proof of support by the case managers.
32