Trustees of the California State University * * * OVERRULED by Regents of the University of California (2010) PERB Decision No. 2107-H (PERB A342H)

OVERRULED by Regents of the University of
California (2010) PERB Decision No. 2107-H
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Employer,
and
CALIFORNIA FACULTY ASSOCIATION,
Exclusive Representative.
CALIFORNIA ALLIANCE OF ACADEMIC
STUDENT EMPLOYEES/UAW,
Joined Party.
Case No. LA-UM-723-H
Administrative Appeal
PERB Order No. 	Ad-342-H
S e p t e m b e r 	2 9 , 	2004
Appearances: 	Joel Block, Labor Relations Manager, for Trustees of the California State
University; Rothner, Segall & Greenstone by Bernhard Rohrbacher, Attorney, for California
Faculty Association; Schwartz, Steinsapir, Dohrmann & Sommers, by Margo A. Feinberg,
Attorney, for California Alliance of Academic Student Employees/UAW.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the California Faculty Association (CFA) of a Regional
Director's determination (attached). 	The Trustees of the California State University (CSU) and
CFA filed a petition for unit modification seeking unit clarification regarding composition of
Unit 3-Faculty represented by CFA. 	The unit was determined appropriate in Unit
Determination for Employees of the California State University and Colleges (1981) PERB
Decision No. 173-H. It was then modified to exclude students from Unit 3 in PERB Case
No. LA-UM-514-H in l991.

The California Alliance of Academic Student Employees/UAW (UAW) was joined as a
party in this case by the Board agent on July 14, 2004, under PERB Regulation 32164.1
In the petition, the original parties noted that there "has been some dispute between
[them] regarding the application of the definition of excluded employees [in the prior unit
modification agreed to in 1991] and that dispute will require resolution as part of this
clarification."
On appeal, CFA alleges that certain graduate students are included within a bargaining
unit represented by CFA and that only statutory non-employees were excluded from the unit
and a degree requirement of instructional employment must exist for a student to be excluded.
It is the position of CSU and UAW that statutory employees were excluded as well and no
degree requirement is necessary for exclusion.
The Board agent found that the statutory employees were in fact excluded as well and
that no degree requirement is necessary for exclusion.
The Board has reviewed the entire record in this case, including the Regional Director's
determination, CFA's appeal, and responses from CSU and UAW. The Board finds the Board
agent's July 14, 2004, decision to be free of prejudicial error and adopts it as the decision of
the Board itself.
'PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et. seq. PERB Regulation 32164 states, in pertinent part:
(d) The Board may order joinder of an employer, employee
organization or individual, subject to its jurisdiction, on
application of any party or on its own motion if it determines
that:
(2) The . . . employee organization . . . has an interest relating to
the subject of the action and is so situated that the disposition of
the action in their absence may:
(A) as a practical matter impair or impede their ability to protect
that interest;. . .
22

ORDER
Clarification of the 1991 unit modification is as follows:
Students are excluded from Unit 3 in accordance with the Order issued in PERB Case
No. LA-UM-514-H, which provided:
1. 	They are degree-seeking graduate students in the academic department in which
they are employed to perform instruction; and
2. 	They are employed because they are degree-seeking students in that department.
Members Whitehead and Neima joined in this Decision.
W	
3

STATE OF CALIFORNIA 	r 	r ,'OLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8383
Fax: (916) 327-6377
July 14, 2004
Sam Strafaci, Assistant Vice Chancellor
Human Resources
California State University
401 Golden Shore
Long Beach, CA 90802-4210
Glenn Rothner, Esquire
Rothner, Segall & Greenstone
510 South Marengo Avenue
Pasadena, CA 91101-3115
Re: 	California State University
Case No. LA-UM-723-H
Dear Interested Parties:
The California State University (Employer or University) and the California Faculty
Association (CFA) jointly filed the above-referenced unit modification petition on February
25, 2004.1 The petition seeks clarification by the Public Employment Relations Board (PERB
or Board) regarding the composition of Unit 3 - Faculty, represented by CFA.
In the petition, the parties noted that there "has been some dispute between the parties
regarding the application of the definition of excluded employees [in a prior unit modification
agreed to in 1991], and that dispute will require resolution as part of this clarification process."
The parties then describe the unit modification requested as follows:
Clarification regarding the inclusion/exclusion of students who
are employed to perform instructional activities, whose
employment is not solely and exclusively dependent upon their
status as degree seeking students in the department in which they
are employed.
On May 25, relying on information obtained from PERB case records and the parties, I wrote
to the parties (see attached letter) and indicated that (1) that no material facts are in dispute that
would necessitate a hearing in this matter (Los Angeles Community College District (1983)
PERB Decision No. 331; Los Angeles Unified School District (1993) PERB Order No. Ad-
250.); and (2) that the proposed order language submitted by the University in its letter dated
May 12 is consistent with the parties' agreement from 1991 and the Order issued in LA-UM-
All dates are in the calendar year 2004 unless otherwise specified.

f 	P
LA-UM-723-H J
July 14, 2004
Page 2
514-H, but that the additional language submitted by CFA is not. 	CFA was afforded an
opportunity to SHOW CAUSE as to why PERB should not issue an Order consistent with the
University's request.
CFA submitted a timely response to the "show cause" letter on June 14. On June 25, both
CSU and the California Alliance of Academic Student Employees/UAW (UAW) filed
responses to CFA's submission.2
CFA
The only new evidence offered by CFA is a declaration by Paul Worthman, who was formerly
employed by CFA and who negotiated on their behalf the unit modification agreement that the
current petition seeks to clarify. 	The key point in Mr. Worthman's declaration references
discussions held involving himself, CFA's then General Manager Ed Purcell and the two
negotiators representing CSU:
In those discussions, we all agreed that the exclusion of a
graduate student who was performing instruction would require
that the student's graduate program include a teaching experience
requirement. In other words, we agreed that it was not sufficient
that the student perform instruction in a class offered by the
department in which he or she was pursuing a graduate degree;
rather, exclusion would be permissible only if the particular
graduate program within that department had a component
necessitating teaching experience, consistent with the defined
mission of the University for, and the educational objectives of,
its graduate programs.
The primary argument made by CFA in its June 14 letter is that the 1991 unit modification
stipulation and PERB's subsequent Order are ambiguous and that unit clarification is an
appropriate vehicle to resolve the ambiguity. CFA relies in part on Union Electric Co. (1975)
217 NLRB 666 [89 LRRM 1535] (Union Electric) for the position that unit clarification is
appropriate concerning unit placement of newly created positions or ones whose duties have
undergone substantial change.
In this same vein, CFA further argues that prior unit modification decisions may be revisited
and the passage of time does not obviate the need for clarification. However, CFA also argues
that the parties' prior stipulation, ambiguous or not, is not conclusive and does not relieve
PERB of its duty to apply statutory presumptions regarding unit placement. 	(State of
California. Department of Personnel Administration (1989) PERB Decision No. 727-S (State
2 Though not previously designated as such, the parties and PERB have treated UAW as
an interested party in this matter, as the issues in this case overlap those raised by the UAW
petition for recognition in PERB Case No. LA-RR-1099-H. Accordingly, UAW is hereby
formally joined as a party in this matter, pursuant to PERB Regulation 32164.

r 	c,LA-UM-723-H
July 14, 2004
Page 3
of California).) Thus, CFA asks PERB to revisit the issue of the appropriateness and extent of
the unit exclusion agreed to by CFA and CSU in 1991.
In the alternative, CFA requests that PERB simply dismiss the instant petition rather than adopt
the clarification sought by CSU. This would allow the parties, according to CFA, to litigate
the issue in another forum (grievance arbitration).
CSU
CSU contends that CFA failed to demonstrate that a evidentiary hearing is necessary in this
matter or that PERB should not issue the order described in the May 25 show cause letter.
With regard to the Worthman declaration, CSU characterizes it as merely the subjective
opinion of Mr. Worthman and CFA, and notes that no evidence from 1991 of actual statements
made by the parties or of documents exchanged by the parties is offered in support of the
conclusions alleged in the declaration.
CSU rejects CFA's reliance on Union Electric, arguing that the classification of Teaching
Associate, established 13 years ago, cannot be considered "newly established" within the
meaning of that decision and that CFA fails to demonstrate substantial changes in the duties of
graduate students employed in the classification. 	CSU further argues that Union Electric
supports an opposite result from that favored by CFA. 	CSU also argues that State of California
and other PERB cases cited by CFA do not support CFA's position.
Finally, CSU opposes CFA's alternative request that PERB dismiss the instant petition. CSU
contends that dismissal would be inconsistent with PERB's statutory authority and
responsibility over unit determination issues, as well as inconsistent with CFA's own
arguments that unit clarification by PERB is necessary and proper in this instance.
UAW
UAW renews its position, first expressed by letter dated March 9, that the CSU/CFA joint unit
modification petition should be dismissed as untimely, as it was not filed during the
intervention period in Case No. LA-RR-1099-H, and it was filed without any evidence of proof
of employee support for CFA. 	This argument relies on the holdings of Arcadia Unified School
District (1979) PERB Decision No. 93 (Arcadia).
If the petition is not dismissed, UAW alternatively argues that CFA's position in the matter be
rejected. UAW argues that CFA is attempting to rewrite the 1991 unit modification rather than
clarify it. 	In summary, UAW contends that the exclusion agreed to in 1991 was not as narrow
as CFA now argues, that CFA has never represented graduate students holding teaching
positions, that the Teaching Associate classification created by CSU in 1991 accurately
reflected the parties' exclusion agreement, and that PERB should not defer the issues in this
case to grievance arbitration.
,

LA-UM-723-H
July 14, 2004
Page 4
Discussion
For the reasons that follow, I conclude that dismissal of the unit modification petition filed by
CFA and CSU is neither required nor appropriate under the circumstances of this case.
Further, the additional information and argument submitted by CFA is not sufficient to change
the conclusions stated in my May 25 letter.
Proposed Dismissal
This petition was filed pursuant to PERB Regulation 32781(b)(2), which allows an employer,
an exclusive representative, or both jointly, to petition to "make technical changes to clarify or
update the unit description." No provision of PERB's regulations imposes time constraints on
this type of petition. The Arcadia case cited by UAW is factually distinguishable from the
instant case, as it involved an effort to add classifications to an established unit and not the
clarification of an earlier unit exclusion. UAW's arguments do not persuade me that this
petition should be dismissed.
CFA's alternative proposal of dismissal is tantamount to an effort to unilaterally withdraw a
jointly filed petition, and will not be granted.
Unit Clarification
As discussed more thoroughly in the show cause letter, the parties stipulated to the exclusion
of certain students employed to teach in 1991 and PERB approved a unit modification Order
memorializing that change in the unit description. 	CSU then established a new classification,
Teaching Associate, for use with graduate students employed to teach who were excluded from
Unit 3. As CSU noted in its argument, the Union Electric decision contains considerable
discussion that runs counter to CFA's position. For example, the decision includes the
following:
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 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.

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LA-UM-723-H
July 14, 2004
Page 5
The corollary conclusion to this analysis, in Union Electric, was that the union's attempt to
include classifications or positions that had
through unit clarification must be rejected.
1been excluded "for substantial periods of time"
This argument and the holdings of State of California do not lead to a different outcome than
that described above because of significant differences in the two cases. 	In State of California,
the dispute did not concern whether certain positions had previously been excluded; rather, the
case proceeded from the basis that they had been excluded. In that case, the union sought
expressly to add these unrepresented positions to the established unit, arguing that the duties of
the positions did not warrant continued exclusion as supervisory. 	The Board correctly rejected
the position of the State employer that the doctrine of res judicata, based on the initial unit
determination decision, barred consideration of the petition.
However, in the instant case, no party argues for application of the doctrine of res judicata and
the instant petition does not seek to add excluded classifications or positions; instead, the
parties seek to clarify an exclusion earlier stipulated to.
One aspect of the CFA argument remains to be addressed. 	Relying on State of California,
CFA argues that PERB should not rely on party stipulations as conclusive regarding the
inclusion or exclusion of positions from the unit, and should revisit the student employee
exclusion in this case.
CFA has not demonstrated either that the Teachin
1 1
g Associate classification is "newly
established," nor that there has been a substantial change in the duties of the positions, within
the meaning of those terms as discussed in Union Electric. Further, the Worthman declaration
is not sufficient to demonstrate that the CSU's establishment of the Teaching Associate
classification failed to comport with the terms of the parties' 1991 stipulation or was overbroad
in its coverage. Thus, CFA's attempt to "clarify" the 1991 unit modification so as to bring
back under Unit 3's coverage a substantial number of employees now classified as Teaching
Associates is contrary to the holdings of Union Electric.
That said, the instant petition does present a bona fide dispute that is within the scope of
PERB's unit clarification regulation (32781(b)(2)), and it is appropriate that PERB rule on the
dispute presented therein. As set forth more fully in the show cause letter, the CSU and CFA
have proposed clarifications of the exclusion agreed upon in 1991 that differ in only one, albeit
significant respect. 	The essential difference between the proposed order language submitted
by CFA and the University concerns whether the exclusion of student employees is contingent
on the instructional employment being a requirement for the student to obtain a graduate
degree in his or her academic department. CFA says it is so contingent and the CSU disagrees.
For the reasons set forth above as well as in my May 25 letter, I conclude that CSU's
characterization of the exclusion is correct.

r 	r.LA-UM-723-H
July 14, 2004
Page 6
Conclusion
For the reasons set forth above and in my May 25 letter, an Order shall issue clarifying the
1991 unit modification as follows:
Students are excluded from Unit 3 in accordance with the Order
issued in PERB Case No. LA-UM-514-H provided:
1. They are degree-seeking graduate students in the academic
department in which they are employed to perform instruction,
and
2. They are employed because they are degree-seeking students in
that department.3
Right of Appeal
An appeal of this decision to the Board itself may be made within ten (10) calendar days
following the date of service of this decision. 	(Regulation 32360.) To be timely filed, the
original and five (5) copies of any appeal must be filed with the Board itself at the following
address:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95814-4174
FAX: (916) 327-7960
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. 	(Regulation
32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The appeal must state the specific issues of procedure, fact, law or rationale that are appealed
and must state the grounds for the appeal (Regulation 32360(c)). An appeal will not
automatically prevent the Board from proceeding in this case. 	A party seeking a stay of any
activity may file such a request with its administrative appeal, and must include all pertinent
facts and justifications for the request (Regulation 32370).
While this matter is not being deferred to arbitration, as noted in my May 25 letter this
determination does not address the merits of any grievances that have been or may be filed by
CFA challenging the proper classification of any individual position.

LA-UM-723-H
July 14, 2004
Page 7
If a timely appeal is filed, any other party may file with the Board an original and five (5)
copies of a response to the appeal within ten (10) calendar days following the date of service of
the appeal (Regulation 32375).
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the Sacramento Regional Office regional office. 	A "proof of service" must
accompany each copy of a document served upon a party or filed with the Board itself (see
Regulation 32140 for the required contents and a sample form). The document will be
considered properly "served" when personally delivered or deposited in the first-class mail
postage paid and properly addressed. A document filed by facsimile transmission may be
concurrently served via facsimile transmission on all parties to the proceeding. 	(Regulation
32135(c).)
Extension of Time
A request for an extension of time in which to file an appeal or opposition to an appeal with the
Board itself must be in writing and filed with the Board at the previously noted address. 	A
request for an extension must be filed at least three calendar days before the expiration of the
time required for filing the document. 	The request must indicate good cause for and, if known,
the position of each other party regarding the extension, and shall be accompanied by proof of
service of the request upon each party (Regulation 32132).
Sincerely,
Les Chisholm
Regional Director
Attachment
cc: 	Mike Miller
Margo Feinberg

r	STATE OF CALIFORNIA 	LD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8383
Fax: (916) 327-6377	PERO
May 25, 2004
Glenn Rothner., Esquire
Rothner, Segall & Greenstone
510 South Marengo Avenue
Pasadena, CA 91101-3115
Sam Strafaci, Assistant Vice Chancellor
Human Resources
California State University
401 Golden Shore
Long Beach, CA 90802-4210
Re: 	California State University
Case No. LA-UM-723-H
Dear Parties:
The California State University (Employer or University) and the California Faculty
Association (CFA) jointly filed the above-referenced unit modification petition on February
25, 2004. 	The petition seeks clarification by the Public Employment Relations Board (PERB
or Board) regarding the composition of Unit 3 - Faculty, represented by CFA.
In the petition, the parties noted that there "has been some dispute between the parties
regarding the application of the definition of excluded employees [in a prior unit modification
agreed to in 1991], and that dispute will require resolution as part of this clarification process."
The parties then describe the unit modification requested as follows:
Clarification regarding the inclusion/exclusion of students who
are employed to perform instructional activities, whose
employment is not solely and exclusively dependent upon their
status as degree seeking students in the department in which they
are employed.
I have spoken with both parties concerning this matter by telephone, including a conference
call on April 22, 2004, and have received supplemental information, per my request, in writing
from both parties. This letter incorporates the information obtained through these
communications as well as information obtained from PERB case records.
•

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May 25, 2004
Page 2
Background
In Unit Determination for Employees of the California State University and Colleges (1981)
PERB Decision No. 173-H (173-H), the Board determined, inter alia, that Unit 3 is an
appropriate unit for purposes of collective bargaining. 	In so ruling, the Board concluded that
the purposes and policies of the Higher Education Employer-Employee Relations Act (HEERA
or Act) 	are "best served by placing all instructional faculty, full-time and part-time, tenured
and non-tenured, including coaches and librarians, together in a comprehensive unit." (Ibid.)'
The Board's decision does not contain any mention of the inclusion or exclusion of students
employed to instruct students. Attached to the Board's decision (and attached to this letter) is
an appendix listing the classifications included in Unit 3 or specifically excluded from Unit 3.
CFA was subsequently certified, on March 1, 1983, as the exclusive representative of Unit 3.
On March 19, 1991, CFA and the University entered into a memorandum of understanding that
provided as follows:
The California State University and the California Faculty
Association agree that they will immediately submit a joint
petition to the California PERB seeking the exclusion from
bargaining Unit 3 of all temporary faculty whose employment is
solely and exclusively dependent upon their status as degree
seeking graduate students in the department in which they are
employed. One basis of the request shall be the fact that such
persons employment with the university is primarily as a student
rather than as an employee.[2]
It is intended that the decision to use graduate students to perform
instruction, and the portion of instruction performed by such 	.
persons, be decisions based upon the needs of the program and
the stated mission of the university. The California Faculty
Association agrees that should it believe that graduate students
are being used in an inappropriate manner, the California Faculty
Association will seek resolution of the issue by a meeting of the
parties to discuss administrative action prior to taking action
through other agencies or forums.
On March 20, 1991, CFA and the University filed a joint unit modification petition (PERB
Case No. LA-UM-514-H) seeking to delete certain positions from Unit 3. The petition
described the unit modification requested as to "Exclude students from Unit 3." The statement
of reasons for the modification request read as follows:
1 HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov
2 The parties' agreement does not describe or identify what other bases were present for
the request.

( 	r
LA-UM-723-H
May 25, 2004
Page 3
Individuals serving in bargaining unit classifications who are
students and whose employment is solely and exclusively
dependent upon their status as degree seeking graduate students
in the department in which they are employed are involved with
the University primarily as students rather than as employees.
[Emphasis added.]
Attached to the unit modification petition in Case No. LA-UM-514-H was a description of the
established unit that differed little from the appendix to 173-H listing the classifications
included in Unit 3.
On April 5, 1991, PERB approved the unit modification requested in LA-UM-514-H, issuing
an Order that excluded individuals from the unit in language that was identical to that quoted
above from the statement of reasons for the petition.
On June 1, 1991, the University established a new classification, titled Teaching Associate, to
includ	includee thos	thosee studen	studentt employees that were excluded from Unit 3.3 The new classification was
described as follows:
The Teaching Associate classification provides currently enrolled
or admitted CSU graduate students with part-time employment
offering practical teaching experience in fields related to their
advanced study. They teach university courses and may also
assist faculty or teaching staff with various professional and
technical activities.
The Teaching Associate classification has never been included in Unit 3 or any other
University bargaining unit, nor has any petition been filed seeking to add the classification to
an established unit. However, currently pending before PERB is a representation petition
(PERB Case No. LA-RR-1099-H) filed on January 8, 2004, by the California Alliance of
Academic Student Employees/UAW (UAW). In its petition, UAW seeks recognition for a
proposed appropriate unit that would include Teaching Associates and other classifications
used to employ students who teach, grade or tutor.
Though the issue of student employee inclusion/exclusion was not raised at PERB again prior
to the filing of the instant petition, CFA filed with the Employer, beginning in 2002, several
grievances that relate to its belief that the University, in at least some instances, has improperly
assigned Unit 3 work to positions outside the bargaining unit.4
These student employees were previously classified as lecturers, a classification that
remains in use in Unit 3.
4 This letter does not address the merits of these grievances or the question of the
proper classification of any individual position.

• ( 	r
LA-UM-723-H
May 25, 2004
Page 4
CFA's Position
CFA requests that PERB modify the unit description for Unit 3, in order to clarify the
placement of student employees, as follows:
Instructional faculty includes graduate students employed to
perform instruction, unless such students:
(1) are degree-seeking graduate students in the academic
department in which they are employed to perform instruction,
(2) are employed because they are degree-seeking graduate
students in the department in which they are employed;
(3) are pursuing a graduate degree that requires the teaching of
department-offered courses; and
(4) the instructional employment is necessary in order to receive
the graduate degree.
To bring the issue into "sharp focus" vis-a-vis the UAW petition pending in LA-RR-1099-H,
CFA asserts that the "vast majority" of graduate student employees petitioned for by UAW are
statutory employees who should be included in the faculty unit
under proper construction of Government Code § 3562(e) - the
HEERA definition of "employee," PERB's 1981 decision
creating an all-inclusive faculty unit, or the 1991 stipulated
modification of the faculty unit, or all three.
In so arguing, CFA notes correctly that the Board's decision in 173-H included the finding that-
instructional faculty constitute an "occupational group" within the meaning of HEERA section
3579(c), thus requiring the Board to give weight to that statutory provision's presumption
against splitting occupational groups.5 The Board further concluded in 173-H that community
of interest criteria supported finding in favor of a comprehensive faculty unit, even without the
section 3579(c) presumption.
5 HEERA section 3579(c) provides:
There shall be a presumption that all employees within an
occupational group or groups located principally within the State
of California shall be included within a single representation unit.
However, the presumption shall be rebutted if there is a
preponderance of evidence that a single representation unit is
inconsistent with the criteria set forth in subdivision (a) or with
the purposes of this chapter.

LA-UM-723-H
May 25, 2004
Page 5
CFA next asserts that the parties' side letter agreement and joint unit modification request in
1991
. . . resulted from a dispute - similar to that which now exists -
over which instructional faculty are excluded from the unit
because their employment is an element of their graduate degree
program, on the one hand, and which instructional faculty are
included in the unit because, although they are students, their 	.
employment is unconnected to any such graduate degree
program, on the other hand.
In this context, CFA contends that it can present testimony that, in referencing a "solely and
exclusively dependent" test for student status in 1991, such status "was a limiting refinement
of the broader, more ambiguous statutory provision describing the test for student employee
status set forth" at HEERA section 3562(e).6
Finally, CFA contends that the only persons performing instruction who fail to qualify as an
"employee" under section 3562(e), i.e., that are "students" within the meaning of both 3562(e)
and the 1991 unit modification, are those in graduate degree programs "whose requirements
include the teaching of CSU-offered course[s]." Thus, according to CFA, even graduate
degree-seeking students teaching in their own academic department are "employees whose
only permissible bargaining unit location is the all-inclusive faculty unit," unless the teaching
experience is itself a requirement of the degree the person seeks to obtain.
Employer's Position
The University's position and proposed outcome depart from that of CFA in one significant
respect. 	The University contends that a requirement of instructional employment in order to
1 HEERA section 3562(e) defines "employee" for purposes of the act as follows:
"Employee" or "higher education employee" means any employee
of the Regents of the University of California, the Directors of
the Hastings College of the Law, or the Trustees of the California
State University. However, managerial and confidential
employees and employees whose principal place of employment
is outside the State of California at a worksite with. 100 or fewer
employees shall be excluded from coverage under this chapter.
The board may find student employees whose employment is
contingent on their status as students are employees only if the
services they provide are unrelated to their educational
objectives, or that those educational objectives are subordinate to
the services they perform and that coverage under this chapter
would further the purposes of this chapter. [Emphasis added.]

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LA-UM-723-H
May 25, 2004
Page 6
obtain a degree was not a factor in the 1991 unit modification excluding students from Unit 3,
and should not be a component of a unit modification order clarifying the unit now. 	In this
context, the University asserts that the Teaching Associate classification, used since June 1991,
has never included a requirement that instructional employment is necessary in order to receive
a graduate degree.
Thus, the University's proposed order in this case would read as follows:
Students who meet both of the following criteria are excluded
from the established bargaining unit under the terms of the 1991
unit modification order whether or not their instructional
employment is necessary in order to receive their graduate degree
in that department:
1. They are degree seeking graduate students in the academic
department in which they are employed to perform instruction,
and
2. They are employed because they are degree-seeking students
in that department.
Discussion
The dispute between the University and CFA, on one level, is as simple as it appears; that is,
its resolution turns on the question of whether the parties agreed in 1991 to exclude student
employees from the unit only if their graduate degree requirements included a requirement that
they engage in instructional employment in their field at the University. 	However, CFA's
argument actually frames the issue differently, asserting that students engaged in instructional
employment are only excluded from Unit 3 if they are excluded from the definition of
employee under the HEERA.
For the reasons that follow, I conclude that CFA has failed to present information to support
either the conclusion that only non-employees were excluded from the unit by the 1991
petition or the conclusion that a degree requirement of instructional employment must be
extant in order for a student employee to be excluded from Unit 3.
Exclusion of Students from Unit 3
It is important to note that, while the PERB Order issued in LA-UM-514-H contains language
from the statement of reasons submitted by the parties, the unit modification requested by the
parties stated simply that they desired to "Exclude students from Unit 3." CFA now argues
that this language, in effect, should be construed to mean that the parties sought only to
exclude persons who were not employees within the meaning of the Act. However, non-
employees could not be included in the unit to begin with, by definition, and so this
)

r 	(LA-UM-723-H
May 25, 2004
Page 7
construction is so circular as to render the language of the Order meaningless.7 In interpreting
the language of parties' agreements, PERB eschews interpretations that would render a
provision meaningless (Antelope Valley Union High School District (1998) PERB Decision
No. 1287) or lead to an absurd result (State of California (Department of Corrections) (1999)
PERB Decision No. 1317-S).
Thus, in order to give meaning to the parties' 1991 agreement, their subsequent unit
modification and the PERB Order, it must be assumed that the exclusion was intended to
exclude persons who might at least arguably be included under the coverage of the Act.8
CFA contends that exclusion of instructional personnel who are covered by the HEERA could
not have been approved by PERB, as such a modification of the unit would violate HEERA's
presumption in favor of keeping occupational groups together and the statutory preference to
avoid the proliferation of units. However, this argument is not persuasive. Rather, in units
established under HEERA for the University of California, PERB specifically approved party
stipulations excluding students from broad, systemwide units without finding that the persons
being excluded were not employees within the meaning of the Act. (See, e.g., Regents of the
University of California (1982) PERB Order No. Ad-114b-H; Unit Determination for
Technical Employees of the University of California (1983) PERB Decision No. 241c-H.)
Further, there is no language in the parties' 1991 agreement or petition referencing the
definition of "employee" under HEERA or its applicability to that agreement. Rather, the
language used, referring to students "whose employment is solely and exclusively dependent
upon their status" as students, is not materially different from language used by the Board in
describing the student stipulation approved in University of California cases (student
employees excluded where their employment is "contingent on their status as students of the
university" (Unit Determination for Technical Employees of the University of California.
supra, PERB Decision No, 241c-H)).
Finally, it is also noted that the parties' 1991 agreement indicates that the subject employees'
"involvement with the university is primarily as a student rather than as an employee" was
only one basis of the request. While the other basis or bases have not been identified, the fact
that there were other, albeit unstated, reasons argues against concluding that employee status
was the definitive factor in the parties' agreement.
-
7 Confidential employees are excluded from coverage under the Act but I am unaware
of any unit modification petitions filed to modify a unit to exclude, generically, confidential
employees. Rather, unit disputes over the inclusion or exclusion of confidential employees
address the status of a particular position or classification.
8 This letter does not address any potential disputes between the University and UAW
over the employee or non-employee status of any persons petitioned for in PERB Case No.
LA-RR-1099-H.
-..

CLA-UM-723-H
May 25, 2004
Page 8
Instructional Employment as a Graduate Degree Requirement
As noted above, the essential difference between the proposed order language submitted by
CFA and the University concerns whether the exclusion of student employees is contingent on
the instructional employment being a requirement for the student to obtain a graduate degree in
his or her academic department.
As with the "non-employee" issue discussed above, I find nothing in the parties' 1991
agreement or the PERB Order issued in LA-UM-514-H that references such a condition or
requirement. 	The requirement is not expressly contained in any of the documentation, and
reading it into the agreement by inference is contrary to other explicit provisions of the
agreement. The agreement, on its face, empowers the University, based on its mission and
"needs of the program," to make a "decision to use graduate students to perform instruction."
CFA, by arguing that the agreement applies only to students who are required to teach in order
to obtain their graduate degree, asks PERB to impose a condition that is more properly decided
by the University in considering how best to achieve its mission and what the needs of various
academic programs are.
Conclusion
For the foregoing reasons, I have determined that no material facts are in dispute that would
necessitate a hearing in this matter. (Los Angeles Community College District (1983) PERB
Decision No. 331; Los Angeles Unified School District (1993) PERB Order No. Ad-250.)
Further, based on the above, I have concluded that the proposed order language submitted by
the University in its letter dated May 12, 2004, is consistent with the parties' agreement from
1991 and the Order issued in LA-UM-514-H, but that the additional language submitted by
CFA is not.
In light of the above, CFA is afforded this opportunity to SHOW CAUSE as to why PERB
should not issue an Order consistent with the University's request. Factual assertions must be
supported by declarations under penalty of perjury by witnesses with personal knowledge and
should indicate that the witness, if called, could competently testify about the facts asserted. If
the facts asserted are reliant on a writing, the writing must be attached to the declaration and
authenticated therein. Legal argument and supporting materials must be filed with the
undersigned no later than June 7, 2004. 	Service and proof of service pursuant to PERB
Regulation 32140 are required.
(
.•

r 	rLA-UM-723-H
May 25, 2004
Page 9
Upon receipt of CFA's argument and factual assertions, or the expiration of the time allowed
for same, the undersigned shall contact each of the interested parties regarding further case
processing steps, including a deadline for responses to the CFA's submittal, if requested.
Sincerely,
Les Chisholm
Regional Director
Attachment
cc: 	Mike Miller
•
.•

Unit 	3 	- 	Faculty
Shall 	INCLUDE:
Class 	Code 	Class 	Title
2356 	Substitute 	Instructional 	Faculty 	- 	Summer 	Session
2357 	Instructional 	Faculty 	- 	Summer 	Session
2358 	Lecturer 	- 	Academic 	Year
2359 	Lecturer 	- 	12-month
2360 	Instructional Faculty- - 	Academic Year
2360 	Department 	Chair 	(Program 	Coordinator, 	Program
Director)
2361 	Instructional Faculty - 12-month
2361 	Department Chair 	(Program Coordinator, Program
Director)
2362 	Demonstration 	Instructional Faculty
2363 	Instructional Faculty, 	Extension
2364 	Instructional Faculty, 	Overseas 	Contract
Assignment
2365 	Music Studio Instructional Faculty
2368 	Instructional Faculty, 	Extra Quarter Assignment,
QYSRO
2369 	L e c t u r e r , 	Overseas 	Contract 	Assignment 	- 	12-month
2373 	Head 	Coach 	- 	12-month
237 4 	Head 	Coach 	- 	10-month
2375 	Year	Head 	Coach 	- 	Academic
2376 	Coach 	- 	12-month
2377 	Coach 	- 	10-month
2378 	Coach 	- 	Academic 	Year
2379 	12-month	Coaching 	S p e c i a l i s t 	-
2380 	10-month	Coaching 	S p e c i a l i s t 	-
2381 	Academic Year
Coaching 	S p e c i a l i s t 	-2382 Coaching 	A s s i s t a n t 	- 	12-month2383 Coaching 	A s s i s t a n t 	- 	10-month
2384 Coaching 	A s s i s t a n t 	- 	Academic 	Year
2385 Department 	Chairman 	- 	12-month
2386 	A d m i n i s t r a t i v e 	Faculty 	- 	12-month
2387 	Grant 	Related 	I n s t r u c t i o n a l 	Faculty 	- 	Academic
Year
2388 	Grant 	Related 	I n s t r u c t i o n a l 	Faculty 	- 	12-month
2390 	I n s t r u c t i o n a l 	Faculty 	- 	Summer 	Quarter 	Assignment
2394 	I n s t r u c t i o n a l 	F a c u l t y , 	Executive 	Committee,
Academic 	Senate
2395 	I n s t r u c t i o n a l 	F a c u l t y , 	Chairman, 	Academic 	Senate
2399 	I n s t r u c t i o n a l 	Faculty 	- 	Academic 	Year
2399 	Department 	Chair 	(Program 	Coordinator, 	Program 	•
Director)
W
•
.	, 	,
3

r 	r
Unit 	3 	- 	Faculty 	(Continued)
Shall 	INCLUDE 	(Continued):
Class 	Code 	Class 	T i t l e
2462 	Vocational 	Instructor , 	Academic Year
2463 	Vocational 	Instructor 	- 	10-month
2464 	Vocational 	i n s t r u c t o r 	- 	12-month
2466 	Vocational 	Instructor , 	Overseas 	Contract
Assignment
2909 	Assistant 	Director 	of 	the 	Library 	- 	10-month
2913 	Supervising 	Librarian 	- 	10-month
2914 	Supervising 	Librarian 	- 	12-month
2919 	Librarian 	- 	10-month
2920 	Librarian 	- 	12-month
Shall EXCLUDE:
All 	employees 	found 	to 	be 	managerial, 	supervisory 	or
confidential 	within 	the 	meaning 	of 	Government 	Code 	section 	3560
et 	seq o , 	including:
Class 	Code 	Class 	T i t l e
2320 	Resident 	Director 	International Programs 	-
Academic Year
2321 	Resident Director 	International Programs 	-
12-month
2370 	Director 	of 	Athletics 	- 	12-month
2371 	Director 	of 	Athletics 	- 10-month
2372 	Director 	of 	Athletics 	- Academic Year
2396 	Academic Specialist 	- Academic Year
2397 	Academic Specialist 	- 	12-month
2468 	Vocational 	Instructor, 	Building Program,
Academic Year
2469 	Vocational 	Instructor, 	Building Program -
12-month
2910 	Associate Director 	of 	the Library - 12-month
2925 	Associate Director 	of 	the Library - 10-month
Coordinator, 	Area and 	Interdisciplinary Programs
Director, 	Southern 	California Ocean Studies
Consortium
4
,,
4