Regents of the University of California (PERB A453H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
UNIVERSITY PROFESSIONAL AND
TECHNICAL EMPLOYEES, CWA LOCAL 9119,
Exclusive Representative.
Case No. SF-UM-779-H
PERB Order No. Ad-453-H
September 29, 2017
Appearances: Renne Sloan Holtzman Sakai by Timothy G. Yeung and Erich W. Shiners,
Attorneys, for Regents of the University of California; Leonard Carder by Andrew Ziaja,
Attorney, for University Professional and Technical Employees, CWA Local 9119.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Regents of the University of California (University) from an
administrative determination (attached) by PERB’s Office of the General Counsel. Following
its investigation, the Office of the General Counsel found that unrepresented employees in the
newly-created classifications Systems Administrator 1, 2 and 3 share a community of interest
with information technology classifications in the University’s Technical (TX) Unit, which is
exclusively represented by the University Professional and Technical Employees, CWA
Local 9119 (UPTE). In accordance with this finding, on May 23, 2017, the Office of the
General Counsel issued its administrative determination granting a unit modification petition
filed by UPTE and ordering the University to add the newly-created Systems Administrator
classifications to the TX unit.

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On appeal, the University argues that employees in the Systems Administrator positions
are “professional employees” within the meaning of the Higher Education Employer-Employee
Relations Act (HEERA),1 and that they do not share a community of interest with employees
in the TX unit. It also contends that by repeatedly petitioning for unit modifications affecting
less than ten percent of the existing units, UPTE is “engaging in piecemeal accretion” and that
the Office of the General Counsel erred by ordering the Systems Administrator classifications
be included in the TX unit without requiring UPTE to show proof of majority support. The
University has also requested a stay of the administrative determination, pending resolution of
this appeal.
UPTE contends the University’s appeal is meritless and opposes the University’s
request to stay the Office of the General Counsel’s order for any period beyond 30 days.
UPTE has also requested expedited consideration of this matter, arguing that, based on its
experience of moving other non-represented classifications to exclusively-represented units,
any delay in bringing the Systems Administrator employees into the TX unit will have
irreparable consequences on the employees’ retirement benefits.
We have reviewed the entire case file and fully considered the issues raised by the
University’s appeal and request for stay, and by UPTE’s response to the appeal and its
opposition to the University’s request for stay, in light of applicable law. We conclude that the
administrative determination was in accordance with PERB Regulations2 and Board precedent,
and we adopt the administrative determination as the decision of the Board itself, subject to the
1 HEERA is codified at Government Code section 3560 et seq.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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following discussion of issues raised by the University’s appeal and request for stay. For
reasons explained below, we also grant UPTE’s request for expedited processing of this matter.
FACTUAL AND PROCEDURAL BACKGROUND
The TX unit is a systemwide bargaining unit of non-supervisory employees who
provide technical support services for academic and scientific research throughout the
University system and the Lawrence Berkeley National Laboratory. PERB certified UPTE as
the exclusive representative of the TX Unit on December 1, 1994.
Since 2009, the University has been in the process of reviewing and revising job
classifications of its unrepresented employees in an effort to establish systemwide job
classifications that more accurately reflect the work performed at all locations in the University
system. As of the filing of the present appeal, the University has yet to complete this process.
One of the titles affected by this process is the Programmer Analyst series, which has been
reclassified into 22 different job functions, including systems and infrastructure administration,
which is the job function of the newly-created Systems Administrator 1, 2 and 3 positions at
issue in this appeal.
On December 22, 2016, UPTE filed with PERB a unit modification petition requesting
that the TX unit be modified to include the newly-created Systems Administrator 1, 2 and 3
classifications. As of December 22, 2016, when UPTE filed its unit modification petition, the
TX unit included 4,059 employees, and the petitioned-for Systems Administrator 1, 2 and 3
classifications included 325 employees located at 12 of the University’s campuses, laboratories
and medical centers. At the five locations where the process has not yet been completed, the
University estimated that between 172 and 190 employees would eventually be reclassified as
Systems Administrators.
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On February 28, 2017, the University filed its position statement regarding the petition,
contesting placement of the System Administrator titles in the TX Unit, and on March 7, 2017,
UPTE filed a reply to the University’s position statement.
On March 30, 2017, the Office of the General Counsel issued an order to show cause
(OSC) why UPTE’s petition should not be granted.
On May 1, 2017, the University filed a response to the OSC, acknowledging that its
position in this matter was contrary to the Board’s decision in Regents of the University of
California (2010) PERB Decision No. 2107-H (Regents), and indicating that, on appeal, it
would ask the full Board to overturn that decision. On May 15, 2017, UPTE filed a reply.
On May 23, 2017, the Office of the General Counsel issued the attached administrative
determination, which incorporated by reference the previous OSC, and an Order granting
UPTE’s petition to modify the TX unit to include the Systems Administrator 1, 2 and 3
classifications.
On June 7, 2017, the University filed the present appeal and request for stay, and on
June 21, 2017, UPTE filed is response to the University’s appeal. On June 23, 2017, UPTE
also filed its opposition to the University’s request for stay and a request for the Board to
expedite processing of this case.
On July 6, 2017, the University requested permission to file a reply to UPTE’s
opposition to “clarify” and respond to issues raised in UPTE’s opposition, which were not
raised in the University’s appeal.
DISCUSSION
The University’s Appeal
PERB Regulation 32781 governs petitions for unit modification. Subdivision (e)(1) of
the Regulation provides, in relevant part, that if a unit modification petition “requests the
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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.”
Primarily at issue in this appeal is whether, by implication, this language eliminates the
Board’s discretion to require proof of majority support when a unit modification petition seeks
to add classifications which would increase the size of the existing unit by less than
ten percent.
As the University acknowledges, this is not a matter of first impression. In Regents,
supra, PERB Decision No. 2107-H, a case involving the same parties, and many of the same
issues, the Board concluded that the ten percent rule was added to the Regulation in 2006 “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.” (Id. at p. 20, citing Cal. Reg.
Notice Register 2005, No. 51-Z, p. 1773.) The Regents Board also concluded that, “[t]he
necessary implication from the amended regulation, in light of PERB case law, is that
increasing [a] unit by less than ten percent does not call into question the incumbent union’s
majority support,” and therefore, that “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.” (Id. at p. 21.)
In reaching this conclusion, the Regents Board also considered and rejected the
University’s request that PERB follow private-sector precedent under which the National
Labor Relations Board (NLRB) has discretion to require proof of support such as a
representation election, unless there is an “overwhelming community of interest” among the
unrepresented employees who are to be added to an existing bargaining unit. Under the
NLRB’s cases, an important consideration in demonstrating whether an “overwhelming
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community of interest” exists is how long the unrepresented positions have been excluded
from the unit. However, after reviewing the history of Regulation 32781 and associated case
law, the Regents Board concluded that “the length of time a particular classification has been
excluded from the bargaining unit is irrelevant to whether proof of support is required among
the positions to be added to the unit pursuant to a unit modification petition.” (Id. at p. 23.)
Finally, the Regents Board also considered and rejected the University’s contention that the
principle of employee choice in representation matters necessarily requires proof of majority
support in the context of a unit modification petition. (Id. at pp. 23-24.) The Board reasoned
that, while HEERA “grant[s] higher education employees the right to choose which employee
organization, if any, will represent them in their employment relations with the employer,” the
statute also balances several competing policy objectives, and that the Legislature had made a
deliberate choice to “subordinate[] this right of employee free choice to the overriding policy
of avoiding proliferation of bargaining units.” (Regents, supra, PERB Decision No. 2107-H,
pp. 23-24.)
While the present appeal raises several arguments for reversing the administrative
determination, they are, in large measure, the same points previously considered and rejected
in Regents, supra, PERB Decision No. 2107-H. Consequently, a threshold issue, and indeed
the central issue, presented by the present appeal is whether we should overrule Regents and
similar PERB cases holding that, unlike the private-sector accretion doctrine, PERB has no
discretion to require proof of majority support when a unit modification petition seeks to add
classifications amounting to less than ten percent of the existing unit. (Regents, supra, at
pp. 19-25; Orcutt Union Elementary School District (2011) PERB Decision No. 2183 (Orcutt),
adopting proposed decision at pp. 15-16; see also County of Riverside (2011) PERB Decision
No. 2163-M, pp. 3-5; County of Riverside (2012) PERB Decision No. 2280-M, pp. 6-9.)
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For several reasons, we decline the University’s invitation and affirm Regents and
similar cases as correctly applying the ten percent rule established by PERB Regulation 32781.
We also conclude that, because UPTE’s proposed unit modification would expand the TX unit
by less than ten percent, as of the date the petition was filed, adding the Systems Administrator
classifications does not violate the rights of higher education employees to freely choose a
representative or to decline to do so, under HEERA.
PERB’s Unit Modification Procedures are Inconsistent with the NLRB’s Accretion Doctrine
Because the Plain Language and Policies of HEERA and Regulation 32781 Differ from Those
of the Private-Sector
Reiterating arguments made in the 2010 Regents case, in the present appeal the
University again urges PERB to apply the ten percent rule only to the extent it is consistent
with the private-sector accretion doctrine and NLRB case law, as set forth in Laconia Shoe Co.
(1974) 215 NLRB 573, 576 and similar cases which consider whether a position has
historically been excluded from the bargaining unit to which it is to be accreted. (See also
Union Electric Co. (1975) 217 NLRB 666, 667.)
However, as noted in Regents, PERB Regulation 32781 (e)(1) makes no mention of
requiring proof of support based upon any time period of exclusion from the unit, and unlike
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 employees in the classifications or positions to be
added to the established unit. (State of California, Department of Personnel Administration
(1989) PERB Decision No. 776-S.) Indeed, in Regents, supra, PERB Decision No. 2107-H,
the Board expressly overruled Trustees of the California State University (2004) PERB Order
No. Ad-342-H to the extent it implied that PERB had adopted the Union Electric/Laconia Shoe
rule. (Id. at p. 22.)
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Subsequent decisions of the Board have affirmed that, “PERB does not follow the
NLRB’s approach to accretion” for a variety of statutory and policy reasons. (County of
Riverside, supra, PERB Decision No. 2163-M, p. 3; County of Riverside, supra, PERB
Decision No. 2280-M, p. 9.) As we recently explained, “PERB has generally construed its
regulations governing representation matters narrowly and declined to look to private-sector
authority for guidance when PERB’s regulations expressly address the policy concerns
underlying the practice and procedure of private-sector labor boards, such as the NLRB or
Agricultural Labor Relations Board.” (Regents of the University of California (2016) PERB
Order No. Ad-434-H (Regents (Teamsters)), pp. 8-9, citing City of Sacramento (2014) PERB
Decision No. 2354-M, pp. 3-7].) As the Board explained in the 2010 Regents decision, by
adopting the ten percent rule PERB consciously rejected the NLRB’s accretion doctrine and, in
particular, the reasoning of Laconia Shoe and similar cases. (Regents, supra, PERB Decision
No. 2107-H, p. 22.)
Moreover, we agree with Regents that, by adopting a regulation providing that an
increase in the size of a bargaining unit by ten percent or more through the addition of
unrepresented positions creates a question concerning representation, 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,”
and that the agency is therefore without discretion to require a showing of support in such
circumstances. (Regents, supra, PERB Decision No. 2107-H, p. 21.) Because an
administrative agency must follow its own rules, even if we were inclined to modify or repeal
the ten percent rule expressly provided for by Regulation 32781, which we are not, we could
do so only through the rulemaking process with notice and opportunity for public comment,
and not through decisional law. (Regents (Teamsters), supra, PERB Order No. Ad-434-H,
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p. 9.) Because it appears to be contrary to the plain language of the Regulation and PERB case
law, we, once again, decline the University’s request to incorporate the rule from Laconia Shoe
and its progeny into PERB’s unit modification procedures.
Neither the Ten Percent Rule nor the Administrative Determination’s Application of thereof
Violate the Principle of Employee Choice Guaranteed by HEERA
The University correctly notes that employee choice is a bedrock principle of HEERA.
(§§ 3560, 3565.) However, it ignores the fact that employee choice in matters of
representation is conceptually distinct from questions of unit placement. While employees
have the right to choose which employee organization, if any, will represent them in their
employment relations, they have no right to choose the bargaining unit in which their
classification or position is placed. (HEERA, § 3579; see also City of Livermore (2017) PERB
Decision No. 2525-M, p. 14, fn. 6, citing County of Riverside, supra, PERB Decision
No 2280-M, p. 9.)
To the extent employee choice is implicated by UPTE’s unit modification petition,
HEERA recognizes that employee choice is not absolute, but must be balanced against the
other policy objectives identified by the Legislature, including establishing “orderly and
clearly defined procedures for meeting and conferring and the resolution of impasses.”
(HEERA, §§ 3560, subd. (e), 3561, subd. (a).) HEERA expressly mandates various
circumstances in which employee rights to self-representation and to select representatives of
their own choosing may be limited to accommodate the statutory scheme of collective
bargaining through exclusive representation in appropriate units. (HEERA, §§ 3567, 3580.5;
Trustees of the California State University (2014) PERB Decision No. 2384-H, p. 28
[employee choice “does not extend to organizations or individuals acting on behalf of the
employer,” emphasis omitted].) For example, as much as 49 percent of affected employees
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may oppose the results of a representation election, but nonetheless be required to accept its
results. The fact that less than ten percent of employees affected by a unit modification may
also oppose representation by the petitioning organization is an imperfect, but not fatal,
limitation on the bedrock principle of employee choice guaranteed by HEERA.
As explained in an early Board decision predating the ten percent rule at issue in this
appeal, PERB’s unit modification procedures provide a mechanism whereby positions or
classifications may be, among other things, added to an established unit when a community
of interest exists. (El Monte Union High School District (1982) PERB Decision No. 220
(El Monte), p. 9.) However, “[t]o require an election every time a new position or
classification is at issue would have the inevitable consequence of destabilizing existing
employer-employee relationships contrary to the Act’s fundamental purpose, as well as being
financially prohibitive and administratively cumbersome for the Board.” (Id. at p. 10.)
Because HEERA does not itself mandate an election where an established unit is modified, it is
within the Board’s discretion to adopt and interpret regulations defining under what
circumstances an election is appropriate, or conversely, removing the Board’s discretion to
require an election under specified circumstances. (HEERA, §§ 3563, subd. (f), 3576; Regents
(Teamsters), supra, PERB Order No. Ad-434-H, p. 9.) The “inflexible” interpretation of the
ten percent rule adopted in Regents and criticized by the University’s appeal is consistent with
the language and purpose of HEERA and PERB Regulation 32781. The ten percent rule
accommodates the principle of employee choice and the policy of establishing “orderly and
clearly defined procedures for meeting and conferring and the resolution of impasses” through
exclusive representation in an appropriate unit by preventing a proliferation of bargaining
units in higher education. (Regents, supra, PERB Decision No. 2107-H, pp. 23-24; see also
Los Angeles Unified School District (1998) PERB Decision No. 1267 (Los Angeles), p. 5,
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quoting from California Assembly Advisory Council, Final Report (March 15, 1973), “Aaron
Commission Report”, p. 85.) Unless we are prepared to declare the principle of employee
choice absolute, such that it may never be limited by other legislatively-declared purposes of
HEERA, we must strike a balance somewhere, and the University has presented no persuasive
evidence or argument that doing so at the ten percent threshold is any more or less arbitrary or
objectionable than at some other given percentage of the existing unit. We therefore affirm
Regents that the ten percent rule established by PERB Regulation 32781 is the appropriate
procedure for changing unit determinations that carries out the provisions and effectuates the
purposes and policies of HEERA. (HEERA, § 3563, subds. (e), (f); Regents (Teamsters),
supra, PERB Order No. Ad-434-H, p. 9.)
The University complains that UPTE has engaged in “piecemeal accretion” by
strategically timing its unit modification petitions to avoid the ten percent threshold for
requiring majority support. However, because we reject the University’s invitation to overrule
Regents, which affirms the ten percent rule, the Board has no further role in questioning
UPTE’s motive or its decision to avail itself of PERB’s unit modification procedures by
accreting multiple groups of employees at different times.
It bears repeating that adding unrepresented classifications to an existing unit is
primarily concerned with issues of unit determination, not employee choice (Elk Grove Unified
School District (2004) PERB Decision No. 1688, adopting proposed decision at pp. 27-28),
and that, while “employees [] get to pick whom they want to represent them, if anyone,” they
“do not get to pick and choose which unit they will be in, at least not at the expense of the
community of interest factors.” (Salinas Union High School District (2002) PERB Order
No. Ad-315 (Salinas), p. 6.) While the employee choice of a representative, if any, is a
legitimate concern of employees in the Systems Administrator classifications and one
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guaranteed by HEERA, the placement of these classifications in an appropriate unit is not.
(HEERA, §§ 3565, 3579; Salinas, supra, at p. 6; see also County of Riverside, supra, PERB
Decision No. 2280-M, p. 9.)
The ten percent rule established by PERB Regulation 32781 recognizes that a question
concerning representation may arise as a result of a proposed unit modification, if the number
of employees affected is large enough, but that neither existing law nor sound public policy
requires a showing of majority support every time an employee organization seeks to add
unrepresented employees to an existing bargaining unit. (Regents, supra, PERB Decision
No. 2107-H, pp. 20-21; Salinas, supra, PERB Order No. Ad-315, p. 6; County of Riverside,
supra, PERB Decision No. 2163-M, p. 4.)
The ten percent rule also adequately accounts for those instances when a proposed unit
modification raises a question concerning representation. Even if every employee in an
accreted classification opposed representation by the petitioning employee organization, the
ten percent rule ensures that, by themselves, the accreted employees would constitute less than
ten percent of the unit, far fewer than the 49 percent of employees who may oppose
representation by an employee organization but may, nevertheless, have to accept the results of
a recognition election under the principle of exclusive representation by majority. (PERB
Regs. 32734, subd. (c), 51340.) Alternatively, if the addition of previously unrepresented
employees to an existing unit through a unit modification petition changes the prevailing
sentiment among employees within the unit against representation by the incumbent, then the
newly-accreted employees, along with other like-minded employees already in the unit, may
gather signatures and file a decertification petition. (PERB Reg. 32770.)
A rule may be criticized as “inflexible” and “arbitrary” or praised as “bright line,”
depending upon whether one approves of its application in particular circumstances. In
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representation matters, PERB has generally favored establishing clear standards to assist the
parties and Board staff in resolving questions of representation without unnecessary delay.
(County of Fresno (2016) PERB Order No. Ad-433-M, pp. 7-8; Capistrano Unified School
District (1994) PERB Order No. Ad-261, pp. 10-11; cf. North Monterey County Unified School
District (1996) PERB Order No. Ad-274, pp. 10-11.) While the ten percent rule has the
potential to limit employee choice to some extent, it also establishes a clear standard for
determining when proof of majority support will be required. As such, it undeniably serves the
purpose of “quickly resolv[ing] representational issues, avoid[ing] lengthy litigation, and
promot[ing] stable employer-employee relations” to “effectuat[e] the purpose of the Act.”
(City of Livermore, supra, PERB Decision No. 2525-M, pp. 21-22, and authorities cited
therein.)
For the reasons set forth in the administrative determination and in Board decisional
law, we conclude that “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” (Regents,
supra, PERB Decision No. 2107-H, p. 24), and that the administrative determination correctly
applied the Regulation’s ten percent rule to permit UPTE’s proposed unit modification without
requiring proof of support.
The Administrative Determination Appropriately Found that the Systems Administrator
Classifications Shares a Community of Interest with TX Unit Employees
The material facts, including those underlying the administrative determination’s
community of interest finding, are not in dispute, and the Office of the General Counsel
appropriately determined that no formal evidentiary hearing was necessary to resolve this
dispute. (Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402
13

(Children of Promise), pp. 16-19.) Consistent with our precedent, the administrative
determination also appropriately reasoned that the proposed addition sought by a unit
modification petition at the time the petition is filed is determinative and “not whether the
proposed addition grows or shrinks after the time the petition is filed.” (Admin.
Determination, p. 5; see also Orcutt, supra, PERB Decision No. 2183, adopting proposed
decision at p. 15, fn. 11, citing Kings County Office of Education (1990) PERB Decision
No. 801, p. 11.) This is another instance where a bright-line rule is appropriate as a policy
matter. (See City of Livermore, supra, PERB Decision No. 2525-M, proposed decision at
pp. 21-22, citing State of California (1983) PERB Decision No. 348-S.)
We therefore reject the University’s arguments that, because it had not yet completed the
process of reclassifying unrepresented employees and because it had projected to reclassify a
significant number of additional employees as Systems Administrators, PERB should not apply
the ten percent rule as of the date UPTE filed its unit modification petition.
As noted in the administrative determination, the duties of the Systems Administrator
series, such as maintaining and analyzing computing systems, did not exist when the TX unit
was established in 1982, but they overlap significantly with those of current TX unit
employees, including Computer Resource Specialists, Technical Support Analysts and
Business Technical Support Analysts and, as noted in the administrative determination, no
party has identified another existing bargaining unit in which the Systems Administrator
classifications would more appropriately belong.
Additionally, while employees in the Systems Administrator classification meet some
of HEERA’s criteria for “professional employees,” as explained in the administrative
determination, they do not meet the educational criterion of the statutory definition because
they are not required to have an advanced degree to perform the job. The TX unit includes
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nonprofessional employees whose work involves the use of independent judgment and the
exercise of specialized skills, often, but not always or necessarily, gained through advanced
education or training. (Unit Determination for Technical Employees of the University of
California (1982) PERB Decision No. 241-H (Unit Determination for Technical Employees),
p. 7.) Therefore, the administrative determination appropriately did not exclude the Systems
Administrator classifications from the TX unit as “professional employees” within the meaning
of HEERA section 3562, subdivision (o)(1), and the University’s contention that the Office of
the General Counsel’s community of interest finding was in error is without merit.
The University’s Request to Stay the Administrative Determination and UPTE’s Request for
an Expedited Decision from the Board
An appeal from a Board agent’s decision will not automatically prevent the Board from
proceeding in a case. Parties seeking a stay of a Board agent’s decision, pending resolution of
an appeal, must file a request for a stay with the administrative appeal. (PERB Reg. 32370.)
The request for stay must include all pertinent facts and justification for the request. (Ibid.)
The University has requested that implementation of the administrative determination and
order to modify the TX unit be stayed, pending resolution of this appeal because, if the appeal
is successful, implementation would be unnecessary. (City of Carson (2003) PERB Order
No. Ad-323-M, p. 3.)
The University points out that it is currently in negotiations with UPTE for a successor
agreement for the TX unit, which is set to expire on September 30, 2017. If the administrative
determination and order are implemented immediately, the parties would either have to include
the Systems Administrators in these negotiations or create a “side table” to address the effects
of adding these new bargaining unit members, until the Board has rendered a decision on the
present appeal. The University argues that by preserving the prior status quo, a stay would
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minimize uncertainty and confusion among affected employees, particularly if the University
prevails in this appeal and any negotiated changes to wages or benefits of Systems
Administrators are implemented and then undone.
UPTE opposes a stay longer than 30 days on two grounds. First, it argues that any
delay implementing the order to modify the TX unit will deprive Systems Administrators of
the right to enjoy the benefits of union representation, which the Board has previously
recognized is “immeasurable in dollar terms once it is delayed or lost.” (City of Fremont
(2013) PERB Order No. IR-57-M, pp. 26-27, quoting Small v. Avanti Health Systems (9th Cir.
2011) 661 F.3d 1180, 1192.) Second, UPTE argues that because Systems Administrators stand
to receive enhanced pension benefits negotiated by UPTE for employees in its units, any delay
in implementation will irreparably harm their terms and conditions of employment. Based on
its experience in other unit modification cases,3 UPTE contends that when previously
unrepresented classifications are added to one of its units, the affected employees become
eligible for the enhanced retirement benefits negotiated by UPTE on a prospective basis only.
However, affected employees are assigned a “blended” retirement formula for their entire
period of University service, which retains the less advantageous terms of the University’s
retirement system for unrepresented employees for the period of service in any unrepresented
classification.
We find it unnecessary to address the parties’ concerns about potential hardship or
confusion that might result if the unit modification order is reversed because, as explained
3 As noted in the administrative determination, UPTE has previously accreted other
groups of unrepresented employees to its units, including Technical Support Analyst positions,
who were added to the TX unit in 2009 pursuant to a settlement of Case No. SF-UM-674-H, and
approximately 317 Business Technical Support Analysts, who were added to the TX unit in
November 2016. 	In 2010, UPTE also successfully petitioned to add certain case manager
positions to the residual health care professional unit (HX unit), which was the subject of
Regents, supra, PERB Decision No. 2107-H discussed above.
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below, we have processed this case on an expedited basis, and because, as explained above, we
have found no merit to the University’s appeal. The University’s request to stay the
administrative determination and implementation of the order to modify the TX unit is
therefore denied.
Next, we turn to UPTE’s request for an expedited decision from the Board. Pursuant to
PERB Regulations, the Board may expedite a unit modification case arising under PERB
Regulation 32781. (PERB Reg. 32147, subd. (a).) Because the present dispute is a cause of
great concern to the parties and affected employees, we have processed it on an expedited basis
in effort to promote stable employer-employee relations, and thereby effectuate the policies
and purpose of HEERA.
Board Consideration of the University’s Reply
Because PERB Regulations neither expressly permit nor preclude the submission of
reply briefs, consideration of such filings is discretionary with the Board. (HEERA, § 3563,
subds. (k), (m); City of Milpitas (2015) PERB Decision No. 2443-M, pp. 13-14; Los Angeles
Unified School District/Los Angeles Community College District (1984) PERB Decision
No. 408 (Los Angeles), pp. 4-5.) Los Angeles holds that:
Where the response raises new issues, discusses new case law or
formulates new defenses to allegations, the Board might well be
persuaded to permit the complainant to submit a reply in order to
aid the Board in its review of the underlying dispute.
(Id., at pp. 4-5.) A reply may also be appropriate when it clarifies or narrows the issues or
the scope of relief requested. (City of San Luis Obispo (2016) PERB Order No. Ad-444-M,
pp. 4-5.) The University’s reply raises several issues, only some of which are arguably new or
aimed at clarifying issues raised by UPTE’s opposition.
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Clarification of Whether PERB Should Require Proof of Support
First, the reply seeks to “clarify” the University’s position on why the ten percent rule
is triggered by the facts of this case. The reply argues that, in determining whether UPTE’s
unit modification affects ten percent or more of the existing TX unit, PERB should consider
not only the 325 employees who had been reclassified as Systems Administrators as of
December 22, 2016, but also 40 employees at the Santa Barbara campus and 75 employees at
the Los Angeles campus who had been “pre-mapped” to one of the Systems Administrator
classifications.4 According to the reply, for unit determinations, PERB considers actual duties
performed, rather than an employee’s job title, and because these pre-mapped employees were
performing the duties of the classification when UPTE’s petition was filed, they must be
included among the number of employees affected by the proposed modification of the TX
unit. If, as the University suggests, these 115 “pre-mapped” employees at the Santa Barbara
and Los Angeles campuses are added to the 325 reclassified Systems Administrators, then the
number of employees affected by UPTE’s petition is 440, which is more than ten percent of the
TX unit’s 4,059 employees.
However, this “clarification” is not new to the University’s reply. In fact, the
University’s appeal similarly argued, at page 2, that “the University offered uncontradicted
evidence that additional employees – enough to put the total well over the 405.9 needed to
clear the ten percent threshold – were already performing the duties of the Systems
Administrator classifications.” It elaborated on this point on page 5 of the appeal, by
mentioning 40 employees at the Santa Barbara campus and 75 employees at the Los Angeles
4 According to the University, “pre-mapping” is the term to describe the preliminary
process of reviewing an employee’s actual job duties to determine which Career Tracks
classification best corresponds to his or her duties. The employee is then preliminarily
“mapped” to the appropriate classification.
18

________________________
campus5 who, according to the University, had been “pre-mapped” to the Systems
Administrator classifications, but whose reclassifications had not yet been implemented. The
University’s appeal then argued, at pages 10-11, that, because these 115 employees at the
Santa Barbara and Los Angeles campuses “have been premapped to the Systems Administrator
classifications” and “were already doing the work of Systems Administrators when the petition
was filed,” they “should have been counted by the Board agent when determining whether the
ten percent threshold had been reached.” Because the point was already fully argued in the
University’s appeal, there is no reason for the Board to consider the reply’s “clarification” of
the same point.
As to the merits of the University’s argument, as presented in its appeal, there are other,
more fundamental problems. In its February 28, 2017 position statement, the University
indicated that 325 employees were working in Systems Administrator titles as of December 22,
2016, when UPTE filed its unit modification petition. The University’s position statement
acknowledged that the 325 employees in the Systems Administrator classifications constituted
less than ten percent of the approximately 4,059 employees comprising the TX unit as of
December 22, 2016. The University’s position statement indicated that the Santa Barbara
campus had “preliminarily mapped” an unidentified number of employees for reclassification
to Systems Administrator positions, but that these reclassifications had not yet been
implemented. The position statement also noted that other locations, including the UCLA
5 The University’s papers variously mention 75 or 77 employees at the Los Angeles
campus. The discrepancy is due to two employees who were hired as Systems Administrators
in 2017, i.e., after UPTE filed its petition. Pursuant to Board precedent, the two new hires
have been excluded from consideration because they were not performing the duties of
Systems Administrators when the petition was filed. (Children of Promise, supra, PERB
Order No. Ad-402, pp. 14-15.)
19

Campus and UCLA Medical Center, “have not yet implemented Career Tracks or even mapped
employees to these classifications at this time.” (Position Statement, p. 5.)
In its May 1, 2017 response to the Office of the General Counsel’s OSC, the University
provided declarations by the University’s Santa Barbara Compensation Manager, Kathy
Moore, and Director of Compensation Programs and Strategies, Terry Weinstein, which
revealed that the pre-mapping process was based on “the most recent job description on file”
and not necessarily on the duties actually performed by the incumbent. Indeed, both the Moore
and Weinstein declarations indicated that the affected employees were not made aware of the
pre-mapping process or its results, from which we may infer that the process did not involve
desk audits, interviews with affected employees, or any other means of determining the
employees’ actual job duties, to the extent such duties differed from their job
descriptions. Moreover, the University’s response and the supporting declarations indicated
that the names of affected employees and any other identifying information had been redacted
from the job descriptions of the 115 employees at the Santa Barbara and Los Angeles
campuses because “it is only appropriate that the employees hear this information from the
University before their names are released to UPTE and/or PERB.”
Based on the Moore and Weinstein declarations, the University’s response to the order
to show cause asserted that, as of May 1, 2017 the pre-mapping process at the Los Angeles
campus had progressed far enough that the University could now “confidently declare” that,
approximately five months earlier when the petition was filed, the total number of employees
actually performing Systems Administrator work exceeded ten percent of number of
employees in the TX unit. The University’s response to the order to show cause also argued
that “there can be no dispute that PERB must take into account the employees newly identified
as performing the work of a Systems Administrator 1, 2, or 3,” because “[t]hese employees
20

existed as of the date of the filing of this petition and perform the same work as employees
already mapped into the Systems Administrator 1, 2, or 3 classifications.” We disagree.
Under our precedents, “Proof of support is determined by PERB when a petition is filed
and an employer provides a list of employees that comprise the petitioned-for unit.” (Children
of Promise, supra, PERB Order No. Ad-402, p. 14.) Although the present case involves a
proposed modification to an already-existing unit, the underlying rationale remains the same.
In unit determination proceedings, the employer is in the unique position of having sole access
to the pertinent information including which employees perform what duties and under which
job titles. Where the employer is unable or unwilling to produce complete and accurate lists of
employees in a proposed unit at the time, it is impossible for PERB to verify a showing of
support or, as in the present case, whether such a showing is required. (Regents of the
University of California (1980) PERB Order No. Ad-100-H, pp. 5-6.) In such circumstances,
the Board agent conducting the investigation may make reasonable assumptions about the
proposed unit or unit modification, including that the number of affected employees estimated
by the party of interest applicant is accurate. (Ibid.)
Here, based on information provided by the University, UPTE’s unit modification
petition estimated that 325 employees had been reclassified to the Systems Administrator
classification as of December 22, 2016. The University did not dispute this number and, in
fact, acknowledged that 325 employees did not reach the ten percent threshold necessary to
require proof of support for the proposed modification. Although the University estimated that
additional employees would be added to the classification at a later time, or that additional
employees were already performing the Systems Administrator duties as of December 22,
2016, it was unable to provide PERB and UPTE a complete and accurate list at the time the
Office of the General Counsel made its administrative determination. Under these
21

circumstances, the Office of the General Counsel correctly relied on the estimated figure of
325 affected employees, as stated in UPTE’s petition.
Propriety of PERB Case Law Disfavoring a Proliferation of Bargaining Units
The University’s reply also seeks to rebut the argument, ostensibly made in UPTE’s
opposition, that requiring proof of majority support among Systems Administrators would
result in a proliferation of bargaining units in this case. However, UPTE’s opposition does not
appear to argue this point, or indeed to argue that requiring proof of majority support in this
case would have any effect one way or the other on the number of units in the University
system. We therefore need not consider this portion of the University’s reply either, since it
does not respond to new arguments or authorities raised in UPTE’s opposition.
UPTE’s opposition does argue, more generally, that the exercise of employee choice
may be curtailed to prevent a proliferation of bargaining units in the University system, and
that Regents and other PERB decisions appropriately seek to promote this policy of HEERA.
In response to this point, the University’s reply contends that Regents and other PERB
decisions have erroneously relied on the Aaron Commission Report, which recommended that
California public-sector employees generally be grouped in the largest reasonable units.
(Los Angeles Unified School District (1998) PERB Decision No. 1267, p. 5, citing Aaron
Commission Report, pp. 84-85.) The University contends that, while the Aaron Commission
undoubtedly made this recommendation, HEERA contains no provisions indicating that the
Legislature ever adopted or agreed with this particular recommendation. According to the
University’s reply, because of its reliance on the Aaron Commission Report, “one must
question whether Los Angeles was correct.”
22

Here, the University’s reply does indeed respond to points and authority raised for the
first time in UPTE’s opposition, and we therefore consider this argument. However, for
various reasons, we do not find it persuasive. While HEERA does not expressly require that
unit determinations result in the “largest reasonable unit,” as recommended by the Aaron
Commission, the University understates the extent to which the Legislature was concerned
with preventing the fragmentation of employee groups and the proliferation of units. Several
of the factors PERB must consider when making unit determinations under HEERA directly
relate to this concern. This includes: the effect of a proposed unit on efficient operations
and its compatibility with the employer’s mission (§ 3579, subds. (a)(3)); the number of
employees and classifications in a proposed unit, and its effect on the employer’s operations,
the employees’ right to effective representation, and the meet and confer relationship
(id., subd. (a)(4)); and 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” (id., subd. (a)(5)).
Thus, while HEERA does not repeat the Aaron Commission’s recommendation
verbatim, it plainly evidences the Legislature’s concern with preventing the fragmentation of
employee groups and the proliferation of bargaining units and, accordingly, it left PERB
considerable discretion in how best to balance this policy objective with others embodied in
the statutory community of interest factors. (§§ 3563, subd. (f), 3576.) Regardless of whether
it was formally adopted or expressly quoted by the Legislature, PERB’s reliance on the Aaron
Commission Report for guidance is a reasonable construction of the statute and well within the
discretion afforded by HEERA.
Another problem with the University’s argument here is that, ultimately, it proves too
much. Since its earliest days, PERB decisions interpreting both HEERA and other PERB-
23

administered statutes have repeatedly sought to avoid fragmentation of employee groups and
unnecessary proliferation of units. (Unit Determination for the State of California (1979)
PERB Decision No. 110-S, p. 6; El Monte, supra, PERB Decision No. 220, pp. 9-10.) )
Whether the Legislature formally adopted the exact language of the Aaron Commission Report
is, at this late date, less significant than the fact that a concern with avoiding fragmentation of
employee groups and a proliferation of bargaining units has featured prominently in PERB’s
unit determination decisions for decades, including decisions establishing the TX and other
statewide units throughout the University system. (Unit Determination for Technical
Employees, supra, PERB Dec. No. 241-H, pp. 5-6, 10.)
Assuming, purely for the sake of argument, that PERB has incorrectly relied on the
Aaron Commission’s Report because the Legislature never expressly adopted or agreed with its
recommendation against a proliferation of units, it seems remarkable that, in the ensuing thirty-
five year period, the Legislature has never again spoken on the subject or otherwise indicated
that PERB’s unit determinations at the University of California were made in error. 	Nor do we
find any persuasive evidence or policy reason in the University’s appeal or reply to reverse the
administrative determination in this case, or to upset decades of Board law on this subject.
Reclassification of Computer Resource Specialist at the Davis Campus
The remainder of the University’s reply is concerned with refuting UPTE’s assertion
that the Davis campus has reclassified a Computer Resource Specialist position to a Systems
Administrator position, and the Office of the General Counsel’s finding, as stated in its order
to show cause, that this reclassification demonstrates that the duties of the two positions were
comparable. (Order to Show Cause, p. 3; see also UPTE Opposition, pp. 39-42.) According to
the University’s reply, the facts of the Davis reclassification do not support UPTE’s contention
that the work of a Computer Resource Specialist is similar to that of a Systems Administrator.
24

Although mentioned in the order to show cause, the discussion of community of interest
factors in the administrative determination did not reference the single reclassification at the
Davis campus. It relied instead on the more general finding that Systems Administrators
“perform work related to computer systems, as do Computer Resource Specialists” and various
other job titles in the TX unit. (Admin. Determination, p. 6.) Because it would not alter either
the determination as to whether proof of support was required, or the community of interest
analysis, we find it unnecessary to consider this argument further.
Correspondence from Affected Employees
After the filings were complete and this matter was submitted to the Board for
consideration, several affected employees contacted the Board to express their concerns and
disagreement with the administrative determination that proof of majority support is not
required before accreting the Systems Administrator classifications to the TX unit.
Although PERB has previously considered employees preferences as one factor in unit
determination cases (State of California (Department of Personnel Administration) (1993)
PERB Decision No. 1025-S), as suggested already, it has rejected the idea that employee free
choice will supersede either PERB’s unit determination authority or alter its application of the
community of interest and other statutory criteria. (Orcutt, supra, PERB Decision No. 2183,
proposed decision at p. 24; Los Angeles, supra, PERB Decision No. 1267, pp. 3-6.)
Accordingly, although the Board has reviewed the correspondence from affected employees,
we have determined that it does not affect the issues on appeal or the Board’s decision to adopt
the administrative determination.
25

ORDER
For the above reasons and based upon the entire record in this case, we hereby DENY
the Regents of the University of California’s appeal and AFFIRM the Office of the General
Counsel’s administrative determination granting the unit modification petition of University
Professional and Technical Employees, CWA Local 9119 to add the Systems Administrators 1,
2 and 3 positions to the Technical (TX) Unit.
Chair Gregersen and Member Winslow joined in this decision.
26

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PER.B
STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC	PUBLIC EMPLOYMENT RELATIONS BOARD	EMPLOYMENT RELATIONS BOARD
San	San Francisco Regional Office	Francisco Regional Office
1330 Broadway, Suite 1532	1330 Broadway, Suite 1532
Oakland,	Oakland, CA 94612-2514	CA 94612-2514
Telephone: (510) 622-1021	Telephone: (510) 622-1021
Fax: (510) 622-1027	Fax: (510) 622-1027
May 23, 2017	May 23, 2017
Andrew Ziaja, Attorney
Leonard Carder LLP
1330 Broadway, Suite 1450
Oakland, CA 94612
Stephanie Leider, Senior Counsel
University of California
Labor and Employment
Office of the General Counsel
1111 Franklin Street, 8th Floor
Oakland, CA 94607
Timothy G. Yeung, Attorney
Renne Sloan Holtzman Sakai LLP
555 Capitol Mall, Suite 600
Sacramento, CA 95814
Re: 	University of California
Case No. SF-UM-779-H
ADMINISTRATIVE DETERMINATION
Dear Interested Parties:
The above-referenced petition for unit modification was filed with the Public Employment
Relations Board (PERB or Board) on December 22, 2016. The University Professional and
Technical Employees, CWA Local 9119 (UPTE) seeks to modify the Technical Unit (TX unit)
of employees of the University of California (UC). Pursuant to the Higher Education
Employer-Employee Relations Act (HEERA)1 UPTE seeks to add to the TX unit the
classifications of Systems Administrator I, II, and III (SysAdmins).
On February 28, 2017, UC filed a verified position statement and supporting c;leclarations. On
March 7, 2017, UPTE filed a verified position statement in response.
On March 30, 2017, PERB issued an Order to Show Cause (OSC) as to why the petition should
not be granted. On May 1, 2017, UC provided a verified second position statement and
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.
Andrew Ziaja, Attorney
Leonard Carder LLP
1330 Broadway, Suite 1450
Oakland, CA 94612
Stephanie Leider, Senior Counsel
University of California
Labor and Employment
Office of the General Counsel
1111 Franklin Street, 8th Floor
Oakland, CA 94607
Timothy G. Yeung, Attorney
Renne Sloan Holtzman Sakai LLP
555 Capitol Mall, Suite 600
Sacramento, CA 95814
Re: 	University of California
Case No. SF-UM-779-H
ADMINISTRATIVE DETERMINATION
Dear Interested Parties:
The above-referenced petition for unit modification was filed with the Public Employment
Relations Board (PERB or Board) on December 22, 2016. The University Professional and
Technical Employees, CWA Local 9119 (UPTE) seeks to modify the Technical Unit (TX unit)
of employees of the University of California (UC). Pursuant to the Higher Education
Employer-Employee Relations Act (HEERA)" UPTE seeks to add to the TX unit the
classifications of Systems Administrator I, II, and III (SysAdmins).
On February 28, 2017, UC filed a verified position statement and supporting declarations. On
March 7, 2017, UPTE filed a verified position statement in response.
On March 30, 2017, PERB issued an Order to Show Cause (OSC) as to why the petition should
not be granted. On May 1, 2017, UC provided a verified second position statement and
HEERA is codified at Government Code section 3560 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.

SF-UM-779-H
May 23, 2017
Page 2
accompanying declarations. On May 15, 2017, UPTE filed a verified further position
statement in response. All of these materials have been reviewed during this investigation.
Summary of Facts
The following factual allegations supplement those summarized in the OSC.
1 . 	Career Tracks and Number of SysAdmins
On November 7, 2016, PERB issued an administrative determination and unit modification
order in case number SF-UM-765-H to include the of classifications of Business Technical
Support Analysts (BTSAs) in the TX unit. This action added approximately 317 employees to
the TX unit, which was 9.2% of the employees then in the unit. Proof of support was not
required for this accretion.
As of the day the instant petition was filed, December 22, 2016, according to UC, there were
4,059 employees in the TX unit, and there were 325 employees in the classification of
SysAdmin. However, UC alleges, it was at that time in the midst of a lengthy process of
converting additional employees into SysAdmin positions.
Under this process, called Career Tracks, UC was creating new classifications-including the
SysAdmin positions-to better describe the actual work of the employee, as opposed to using a
general classification term for all employees, such as Programmer Analyst. UC examined the
positions at each campus or medical center and "mapped" the employees into the different
classifications. Once the mapping process was completed, UC reclassified some employees
into their new classifications. The employees generally continued to perform the same work as
before, only now with a different job title.
At the time the petition was filed, UC had completed the process of mapping and reclasifying
employees at 12 of its campus locations. However, it had not yet implemented Career Tracks
or completed the mapping process at five locations: UC Santa Barbara campus, UC Los
Angles (UCLA) campus, UCLA Medical Center, UC Irvine campus, and UC Irvine Medical
Center.
In September 2016 (before the petition was filed), UC had performed a "pre-mapping" process
at UC Santa Barbara and had identified 40 employees who were performing the work of
SysAdmins. However, UC Santa Barbara had not yet implemented Career Tracks and so these
employees were not reclassified as SysAdmins as of the date the petition was filed.
After the petition was filed, UC began pre-mapping at the UCLA campus. It has identified 77
employees who are performing the work of one of the SysAdmin levels. It appears that UC
expects to reclassify these 77 employees as SysAdmins but, as with the employees at UC Santa
Barbara, they have not been reclassified yet.
For the other three locations-UCLA Medical Center, UC Irvine campus, and the UC Irvine
Medical Center-UC has begun the pre-mapping process and expects it will be completed
SF-UM-779-H
May 23, 2017
Page 2
accompanying declarations. On May 15, 2017, UPTE filed a verified further position
statement in response. All
of
these materials have been reviewed during this investigation.
Summary
of
Facts
The following factual allegations supplement those summarized in the OSC.
1.	
Career Tracks and Number
of
SysAdmins
On November
7,
2016, PERB issued an administrative determination and unit modification
order in case number SF-UM-765-H to include the
of
classifications
of
Business Technical
Support Analysts (BTSAs) in the TX unit. This action added approximately 317 employees to
the TX unit, which was 9.2%
of
the employees then in the unit. Proof
of
support was not
required for this accretion.
As
of
the day the instant petition was filed, December 22, 2016, according to UC, there were
4,059 employees in the TX unit, and there were 325 employees in the classification
of
SysAdmin. 	However, UC alleges, it was at that time in the midst
of
a lengthy process
of
converting additional employees into SysAdmin positions.
Under this process, called Career Tracks, UC was creating new classifications-including the
SysAdmin
positions-to
better describe the actual work
of
the employee, as opposed to using a
general classification term for all employees, such as Programmer Analyst. UC examined the
positions at each campus or medical center and "mapped" the employees into the different
classifications. Once the mapping process was completed, UC reclassified some employees
into their new classifications. The employees generally continued to perform the same work as
before, only now with a different job title.
At the time the petition was filed, UC had completed the process
of
mapping and reclasifying
employees at 12
of
its campus locations. However, it had not yet implemented Career Tracks
or completed the mapping process at five locations: UC Santa Barbara campus, UC Los
Angles (UCLA) campus, UCLA Medical Center, UC Irvine campus, and UC Irvine Medical
Center.
In September 2016 (before the petition was filed), UC had performed a "pre-mapping" process
at UC Santa Barbara and had identified 40 employees who were perfonning the work
ofSysAdmins. However, UC Santa Barbara had not yet implemented Career Tracks and so these
employees were not reclassified as SysAdmins as
of
the date the petition was filed.
After the petition was filed, UC began pre-mapping at the UCLA campus.
It
has identified 77
employees who are performing the work
of
one
of
the SysAdmin levels.
It
appears that UC
expects to reclassify these 77 employees as SysAdmins but, as with the employees at UC Santa
Barbara, they have not been reclassified yet.
For the other three locations-UCLA Medical Center, UC Irvine campus, and the UC Irvine
Medical Center-UC has begun the pre-mapping process and expects it will be completed

SF-UM-779-H
May 23, 2017
Page 3
within five months. For these locations, UC has made some estimates regarding how many
employees it expects to reclassify as SysAdmins. UC generated these estimates based upon
how many employees it had already reclassified at the other locations. UC expects to
reclassify between 19 and 36 employees at UCLA Medical Center, between 29 and 43
employees at UC Irvine campus, and between 4 and 8 employees at the UC Irvine Medical
Center.
In total, with respect to the five campuses where the process has not been completed, UC
estimates that between 172 and 190 employees will ultimately be reclassified as SysAdmins.
2. 	Other Bargaining Units
In May 2003, UPTE filed with PERB a petition for certification of a proposed bargaining unit
called the Operations Support Professional Unit. This proposed unit would have included the
positions of Programmer/Analyst and Network Engineer. PERB conducted a mail ballot
election, with the result that a majority of employees selected no representation. Accordingly,
UPTE was not certified as exclusive representative and this bargaining unit never came into
existence. It is not currently listed as a bargaining unit on UC's website."
UC provides printouts from websites that UPTE apparently used in its 2003 organizing efforts.
These documents are not authenticated or dated. There is a seven-page list of "administrative
professional job titles at UC" which includes Systems Administrator 2 and Systems
Administrator 3. This list is not dated or authenticated. It appears from one of the printouts
that may have been issued in 2016 or 2017 that UPTE is continuing its efforts to organize
administrative professionals. A printout dated 2012-2013 states that those in the unit of
administrative professionals are "currently organizing," and that many have joined UPTE.
Discussion
PERB Regulation 32786(a) * provides:
Upon receipt of a petition for unit modification, the Board shall investigate and,
where appropriate, conduct a hearing and/or a representation election, or take
such other action as deemed necessary in order to decide the questions raised by
the petition and to ensure full compliance with the provisions of the law.
This proposed unit was not created or recognized in the systemwide unit
determination cases for the UC bargaining units, which were mostly made in 1982 and 1983.
ttp://ucnet.universityofcalifornia.edu/labor/bargaining-units/.
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. The text of the PERB Regulations may be found at
SF-UM-779-H
May 23, 2017
Page 3
within five months. For these locations, UC has made some estimates regarding how many
employees it expects to reclassify as SysAdmins. UC generated these estimates based upon
how many employees it had already reclassified at the other locations. UC expects to
reclassify between
19
and 36 employees at UCLA Medical Center, between 29 and
43
employees at UC
Irvine campus, and between 4 and 8 employees at the UC Irvine Medical
Center.
In total, with respect to the five campuses where the process has not been completed, UC
estimates that between 172 and 190 employees will ultimately be reclassified
as
SysAdmins.
2. 	Other Bargaining Units
In May 2003, UPTE filed with PERB a petition for certification
of
a proposed bargaining unit2
called the Operations Support Professional Unit. This proposed unit would have included the
positions
of
Programmer/Analyst and Network Engineer. PERB conducted a mail ballot
election, with the result that a majority
of
employees selected no representation. Accordingly,
UPTE was not certified as exclusive representative and this bargaining unit never came into
existence. It is not currently listed as a bargaining unit on UC's website.3
UC provides printouts from websites that UPTE apparently used in its 2003 organizing efforts.
These documents are not authenticated or dated. There is a seven-page list
of
"administrative
professional job titles at UC" which includes Systems Administrator 2 and Systems
Administrator
3.
This list is not dated or authenticated. It appears from one
of
the printouts
that may have been issued in 2016 or 2017 that UPTE is continuing its efforts to organize
administrative professionals. A printout dated 2012-2013 states that those in the unit
of
administrative professionals are "currently organizing," and that many have joined UPTE.
Discussion
PERB Regulation 32786(a) 4 provides:
Upon receipt
of
a petition for unit modification, the Board shall investigate and,
where appropriate, conduct a hearing and/or a representation election, or take
such other action as deemed necessary in order to decide the questions raised by
the petition and to ensure full compliance with the provisions
of
the law.
2 This proposed unit was not created or recognized in the systemwide unit
determination cases for the UC bargaining units, which were mostly made in 1982 and 1983.
3
hhttp://ucnet.universityofcalifornia.edu/labor/bargaining-units/.
4 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. The text of the PERB Regulations may be found at www.perb.ca.gov	www.perb.ca,gov..

SF-UM-779-H
May 23, 2017
Page 4
The Board has held that there is "no guarantee or entitlement to an evidentiary hearing in a
representation proceeding." (Children of Promise Preparatory Academy (2013) PERB Order
No. Ad-402.) Rather, after completing an investigation, the Board agent may "determine that
sufficient evidence has been submitted to raise a material issue that necessitates an evidentiary
hearing," or, alternatively, "that no material issue of fact exists and thus that a hearing is
unnecessary." (Ibid.)
A Board agent may use an order to show cause to investigate whether a representation petition
raises a material factual dispute that must be resolved through an evidentiary hearing.
(Children of Promise Preparatory Academy, supra, PERB Order No. Ad-402 at pp. 17-18.) If
none is raised, then an administrative determination is appropriate. (Ibid.)
1. 	Regulatory Basis for Unit Modification Petition and Proof of Support
As discussed in the OSC, PERB Regulation 32781(e)(1) states the following:
If [a unit modification] 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.
PERB Regulations indicate that the date a petition is filed is determinative in most proof of
support issues. PERB Regulation 32700 states that proof of support is valid if it is "obtained
within one year immediately prior to the date the petition or amendment requiring employee
support is filed[.]" (PERB Regulation 32700(c) [emphasis added].) Similarly, PERB
Regulation 32784 states the following:
If proof of support has been filed pursuant to section 32781(e)(1)
or (2), the employer shall, within 20 days of the date the support
was filed, file with the regional office an alphabetical list,
including job titles or classifications, of all employees proposed
to be added to the unit as of the last date of the payroll period
immediately preceding the date the petition was filed with PERB,
unless otherwise directed by the Board.
(PERB Regulation 32784(a) [emphasis added].) Thus, PERB determines whether proof of
support is sufficient based on the number and identity of employees employed at the time a
petition is filed. In sum, the regulations require PERB to look to the date a petition is filed to
decide proof of support issues.
In Regents of the University of California (2010) PERB Decision No. 2107-H, the Board, after
examining the history of PERB Regulation 32781(e)(1), held that "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." (Regents of the University of
SF-UM-779-H
May 23, 2017
Page 4
The Board has held that there is "no guarantee or entitlement to an evidentiary hearing in a
representation proceeding." (Children
of
Promise Preparatory Academy (2013) PERB Order
No. Ad-402.) Rather, after completing an investigation, the Board agent may "determine that
sufficient evidence has been submitted to raise a material issue that necessitates an evidentiary
hearing," or, alternatively, "that no material issue
of
fact exists and thus that a hearing is
unnecessary." (Ibid.)
A Board agent may use an order to show cause to investigate whether a representation petition
raises a material factual dispute that must be resolved through an evidentiary hearing.
(Children
of
Promise Preparatory Academy, supra, PERB Order No. Ad-402 at pp. 17-18.)
If
none is raised, then an administrative determination is appropriate. (Ibid.)
1. 	Regulatory Basis for Unit Modification Petition and Proof
of
Support
As discussed in the OSC, PERB Regulation 32781(e)(l) states the following:
If
[ a unit modification] 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.
PERB Regulations indicate that the date a petition is filed is detenninative in most proof
of
support issues. PERB Regulation 32700 states that proof
of
support is valid
if
it
is
"obtained
within one year immediately prior to the date the petition or amendment requiring employee
support is filed[.]" (PERB Regulation 32700(c) [emphasis added].) Similarly, PERB
Regulation 32784 states the following:
If
proof
of
support has been filed pursuant to section 32781(e)(l)
or (2), the employer shall, within 20 days
of
the date the support
was filed, file with the regional office an alphabetical list,
including job titles or classifications,
of
all employees proposed
to be added to the unit as
of
the last date
of
the payroll period
immediately preceding the date the petition was filed with PERB,
unless otherwise directed by the Board.
(PERB Regulation 32784(a) [emphasis added].) Thus, PERB determines whether proof ofsupport is sufficient based on the number and identity
of
employees employed at the time a
petition is filed. In sum, the regulations require PERB to look to the date a petition is filed to
decide proof of support issues.
In Regents
of
the University
of
California (2010) PERB Decision No. 2107-H, the Board, after
examining the history of PERB Regulation 3278l(e)(l), held that "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." (Regents
of
the University
of

SF-UM-779-H
May 23, 2017
Page 5
California, supra, PERB Decision No. 2107-H.) This holding emphasizes that it is the
proposed addition sought by the petition, at the time of the petition, that matters - not whether
the proposed addition grows or shrinks after the time the petition is filed. Thus, the Board
views the date a petition is filed as the date that determines whether proof of majority of
support is needed. (See also Children of Promise Preparatory Academy, supra, PERB Order
No. Ad-402 [PERB makes unit determination decisions based on a review of conditions at the
time a petition is filed.])
As of the date the petition was filed, there were 4,059 employees in the bargaining unit.
Therefore, if more than 405 employees are added to the unit, proof of support is required. It is
undisputed that, as of the date the petition was filed, there were 325 SysAdmin positions. This
is less than the threshold amount and therefore proof of support cannot be required.
UC contends that between 172 and 190 employees will be reclassified as SysAdmins in the
near future. If so, this would bring the total number of SysAdmins to between 497 and 515
employees, and exceed the 10% threshold. Proof of support would be required under this
scenario. However, because the instant petition was filed on December 22, 2016, PERB must
determine how many SysAdmin employees were employed on that day. That number is 325,
less than 10% of the bargaining unit, and proof of support is not required.
As discussed in Regents of the University of California (2010) PERB Decision No. 2107-H, the
Board agent does not have discretion to require proof of support if the 10% threshold is not
met. Accordingly, proof of support cannot be required for this petition even though the
number of individuals employed in the SysAdmin positions will likely increase in coming
months.
2. 	Exclusion of Professional Employees
As discussed in the OSC, "professional" employees are defined by section 3562(o)(1).
Professional employees meeting this definition may properly be excluded from units of non-
professional employees. The SysAdmins do not meet the definition of professional in section
3562(0)(1) because there is no showing that they "possess advanced knowledge usually
acquired by a specialized or advanced degree, as opposed to a general academic education."
Therefore, exclusion from the unit on this basis is not warranted.
3. 	There is Not an Administrative Professionals Unit at UC
Where PERB has determined that a classification belongs in a particular bargaining unit, there
is a rebuttable presumption that the classification should not be removed to another bargaining
unit: "PERB's placement is presumptively valid." (Trustees of the California State University
(2007) PERB Decision No. 1881-H, p. 4.) This rebuttable presumption applies when a party
seeks to move an existing classification to a different bargaining unit, or to separate a
bargaining unit. (Id., at p. 9.) However, it is not properly applied when placing a new
classification into a unit because there is no presumption to rebut. (Ibid.)
SF-UM-779-H
May 23, 2017
Page 5
California, supra, PERB Decision No. 2107-H.) This holding emphasizes that it is the
proposed addition sought
by
the petition, at the time
of
the petition, that matters - not whether
the proposed addition grows or shrinks after the time the petition is filed. Thus, the Board
views the date a petition is filed as the date that determines whether
proof
of
majority
of
support is needed. (See also Children
of
Promise Preparatory Academy, supra, PERB Order
No. Ad-402 [PERB makes unit detennination decisions based on a review
of
conditions at the
time a petition is filed.])
As
of
the date the petition was filed, there were 4,059 employees in the bargaining unit.
Therefore,
if
more than 405 employees are added to the unit,
proof
of
support is required. It is
undisputed that, as
of
the date the petition was filed, there were 325 SysAdmin positions. This
is less than the threshold amount and therefore
proof
of
support cannot be required.
UC contends that between 172 and 190 employees will be reclassified as SysAdmins in the
near future.
	If
so, this would bring the total number
of
SysAdmins to between 497 and 515
employees, and exceed the 10% threshold. Proof
of
support would be required under this
scenario. However, because the instant petition was filed on December 22, 2016, PERB must
determine how many SysAdmin employees were employed on that day. That number is 325,
less than 10%
of
the bargaining unit, and
proof
of
support is not required.
As discussed in Regents
of
the University
of
California (2010) PERB Decision No. 2107-H, the
Board agent does not have discretion to require proof
of
suppmi
if
the 10% threshold is not
met. Accordingly,
proof
of
support cannot be required for this petition even though the
number
of
individuals employed in the SysAdmin positions will likely increase in coming
months.
2. 	Exclusion
of
Professional Employees
As discussed in the OSC, "professional" employees are defined by section 3562(0)(1).
Professional employees meeting this definition may properly
be
excluded from units
of
non-
professional employees. The SysAdmins do not meet the definition
of
professional in section
3562(0)(1) because there is no showing that they "possess advanced knowledge usually
acquired by a specialized or advanced degree, as opposed to a general academic education."
Therefore, exclusion from the unit on this basis is not warranted.
3. 	There is Not an Administrative Professionals Unit at UC
Where PERB has detennined that a classification belongs in a particular bargaining unit, there
is a rebuttable presumption that the classification should not be removed to another bargaining
unit: "PERB's placement is presumptively valid." (Trustees
of
the California State University
(2007) PERB Decision No. 1881-H, p. 4.) This rebuttable presumption applies when a party
seeks to move an existing classification to a different bargaining unit, or to separate a
bargaining unit. (Id., at p. 9.) However, it is not properly applied when placing a new
classification into a unit because there is no presumption to rebut. (Ibid.)

SF-UM-779-H
May 23, 2017
Page 6
The rebuttable presumption is not applicable to the instant case. Here, PERB made no
determination to create an Operations Support Professional Unit or Administrative
Professionals Unit. The Operations Support Professional Unit was a proposed unit that was
agreed to by UC and UPTE for the purposes of a representation clection. The election did not
result in the selection of an exclusive representative, and the proposed unit never became an
actual unit. Although it appears UPTE has made efforts over the years to organize a new
Administrative Professionals Unit, that unit also has not been created by PERB or recognized
as an existing unit. Moreover, the SysAdmin position is not an existing classification; it is a
new position. Accordingly, the presumption discussed above does not apply.
4. 	Community of Interest Factors
A community of interest analysis is applied in cases where the appropriateness of a bargaining
unit is an issue, for example, if a party contends that a classification is more appropriately
placed in one of two different bargaining units. (Hemet Unified School District (1990) PERB
Decision No. 820.) In determining units, PERB need not seek to determine the most
appropriate unit. (Antioch Unified School District (1977) EERB Decision No. 37.)
Section 3579 identifies the following community of interest factors: (1) internal and
occupational community of interest among employees, including functionally related services,
work toward common goals, history of employee representation, extent to which the
employees belong to the same employee organization, extent of common skills, working
conditions, job duties, or similar educational or training requirements, and the extent of
common supervision; (2) the effect that the projected unit will have on the meet and confer
relationship, including factors such as work location, size of unit, the relationship of the unit to
organizational patterns of the employer, and the effect of dividing a classification schematic
among two or more units; (3) the effect of the proposed unit on efficient operations of the
employer and its ability to serve students and the public; (4) the number of employees and
classifications in a proposed unit, its effect on the operations of the employer, the employees
right to effective representation, and on the meet and confer relationship; and (5) the impact
created by fragmentation of employees groups or proliferation of units.
Although UC contends that SysAdmins should be part of the Administrative Professionals unit,
as noted above, this unit does not presently exist. Therefore, PERB cannot determine that
SysAdmins are more appropriately placed in this different bargaining unit. The only existing
unit that has been offered up as an appropriate unit is the TX unit.
As noted in the OSC, the community of interest factors point to inclusion of the SysAdmins in
the TX unit. SysAdmins perform work related to computer systems, as do Computer Resource
Specialists (CRSs), Technical Support Analysts (TSAs) and BTSAs, all positions currently
within the TX unit. UC accurately points out that employees who work with computers
perform a vast array of tasks that are not interchangeable or alike. SysAdmins perform higher-
level work of design and planning of information systems, whereas the CRSs, TSAs and
BTSAs perform different types of work. However, these employees appear to perform
functionally related services and work towards common goals. UPTE alleges that educational
and training requirements for SysAdmins are in line with other employees in the TX unit,
SF-UM-779-H
May 23, 2017
Page 6
The rebuttable presumption is not applicable to the instant case. Here, PERB made no
determination to create an Operations Support Professional Unit or Administrative
Professionals Unit. The Operations Support Professional Unit was a proposed unit that was
agreed to by UC and UPTE for the purposes
of
a representation election. The election did not
result in the selection
of
an exclusive representative, and the proposed unit never became an
actual unit. Although it appears UPTE has made efforts over the years to organize a new
Administrative Professionals Unit, that unit also has not been created by PERB or recognized
as an existing unit. Moreover, the SysAdmin position is not an existing classification; it is a
new position. Accordingly, the presumption discussed above does not apply.
4. 	Community
of
Interest Factors
A community
of
interest analysis is applied in cases where the appropriateness
of
a bargaining
unit is an issue, for example,
if
a party contends that a classification is more appropriately
placed in one
of
two different bargaining units. (Hemet Unified School District (1990) PERB
Decision No. 820.) In detennining units, PERB need not seek to detennine the most
appropriate unit. (Antioch Unified School District (1977) EERB Decision No. 37.)
Section 3579 identifies the following community
of
interest factors: 	(1) internal and
occupational community
of
interest among employees, including functionally related services,
work toward common goals, history
of
employee representation, extent to which the
employees belong to the same employee organization, extent
of
common skills, working
conditions, job duties, or similar educational or training requirements, and the extent
of
common supervision; (2) the effect that the projected unit will have on the meet and confer
relationship, including factors such as work location, size
of
unit, the relationship
of
the unit to
organizational patterns
of
the employer, and the effect
of
dividing a classification schematic
among two or more units; (3) the effect
of
the proposed unit on efficient operations
of
the
employer and its ability to serve students and the public; ( 4) the number
of
employees and
classifications in a proposed unit, its effect on the operations
of
the employer, the employees
right to effective representation, and on the meet and confer relationship; and (5) the impact
created by fragmentation
of
employees groups or proliferation
of
units.
Although UC contends that SysAdmins should be part
of
the Administrative Professionals unit,
as noted above, this unit does not presently exist. Therefore, PERB cannot detennine that
SysAdmins are more appropriately placed in this different bargaining unit. The only existing
unit that has been offered up as an appropriate unit is the TX unit.
As noted in the OSC, the community
of
interest factors point to inclusion
of
the SysAdmins in
the TX unit. 	SysAdmins perfonn work related to computer systems, as do Computer Resource
Specialists (CRSs), Technical Support Analysts (TSAs) and BTSAs, all positions currently
within the TX unit. UC accurately points out that employees who work with computers
perform a vast array of tasks that are not interchangeable or alike. 	SysAdmins perfonn higher-
level work of design and planning of information systems, whereas the CRSs, TSAs and
BTSAs perform different types of work. However, these employees appear to perfonn
functionally related services and work towards common goals. UPTE alleges that educational
and training requirements for SysAdmins are in line with other employees in the TX unit,

SF-UM-779-H
May 23, 2017
Page 7
focusing on work experience as opposed to specific educational requirements. UC alleges that
while some SysAdmins have common supervision with BTSAs and CRSs, most have separate
supervision, so this factor may not weigh strongly in favor of inclusion. However, SysAdmins
work in the same departments as do CRSs. Including the SysAdmins in the TX unit, as
opposed to creating a new separate unit, would also avoid the proliferation of units. No party
has alleged that inclusion would have a negative impact on the meet and confer relationship or
the operations of the employer, or that it would be inappropriate based on the other factors
identified by section 3579.
Accordingly, it is determined that the SysAdmins are appropriately placed in the TX
bargaining unit. A unit modification order will issue.
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. (Cal. Code Regs., tit. 8, $ 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered "filed" when actually received during a regular PERB business day.
Cal. Code Regs., tit. 8, $$ 32135, subd. (a) and 32130; Gov. Code, $ 11020, subd. (a).) A
document is also considered "filed" when received by facsimile transmission before the close
of business together with a Facsimile Transmission Cover Sheet which meets the requirements
of PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8,
$ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, $$ 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 (Cal. Code Regs., tit. 8, $ 32360, subd. (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 (Cal. Code Regs., tit. 8, $ 32370).
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 (Cal. Code Regs., tit. 8, $ 32375).
Service
SF-UM-779-H
May 23, 2017
Page 7
focusing on work experience as opposed to specific educational requirements. UC alleges that
while some SysAdmins have common supervision with BTSAs and CRSs, most have separate
supervision,
so
this factor may not weigh strongly in favor
of
inclusion. However, SysAdmins
work in the same departments as
do
CRSs. Including the SysAdmins in the TX unit, as
opposed to creating a new separate unit, would also avoid the proliferation
of
units. No party
has alleged that inclusion would have a negative impact on the meet and confer relationship or
the operations
of
the employer, or that it would be inappropriate based
mi
the other factors
identified by section 3579.
Accordingly, it is determined that the SysAdmins are appropriately placed in the TX
bargaining unit. A unit modification order will issue.
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. (Cal. Code Regs., tit. 8, § 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit.
8, §§
32135, subd. (a) and 32130; Gov. Code,§ 11020, subd. (a).) A
document is also considered "filed" when received by facsimile transmission before the close
of
business together with a Facsimile Transmission Cover Sheet which meets the requirements
of
PERB Regulation 32135(d), provided the filing paiiy also places the original, together with
the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§
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 (Cal. Code Regs., tit. 8, § 32360, subd. (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 (Cal. Code Regs., tit. 8, § 323 70).
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 ofthe appeal (Cal. Code Regs., tit. 8, § 32375).
Service

SF-UM-779-H
May 23, 2017
Page 8
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the San Francisco Regional Office. A "proof of service" must accompany
each copy of a document served upon a party or filed with the Board itself (see Cal. Code
Regs., tit. 8, $ 32140 for the required contents). The document will be considered properly
"served" when personally delivered or deposited in the mail or deposited with a delivery
service and properly addressed. A document may also be concurrently served via facsimile
transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, $ 32135, subd. (c).)
Sincerelo.
SF-UM-779-H
May 23 , 2017
Page 8
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the San Francisco Regional Office. A "
proof
of
service" must accompany
each copy
of
a document served upon a paiiy or filed with the Board itself (see Cal. Code
Regs. , tit. 8, § 32140 for the required contents). The document will be considered properly
" served" when personally delivered or deposited in the mail or deposited with a delivery
service and properly addressed. A document may also be concmTently served via facsimile
transmission on all paiiies to the proceeding. (Cal. Code Regs. , tit. 8, § 32135 , subd. (c) .)
Sincere~ .
Laura 7. Davis	Davis
Supervising Regional Attorney	i upervising Regional Attorney
LD	LD
1,	
Li ura

STATE OF CALIFORNIA 	UND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
March 30, 2017
Stephanie Leider, Senior Counsel
University of California, Office of the General Counsel
1111 Franklin Street, 8th Floor
Oakland, CA 94607-5200
Andrew Ziaja, Attorney
Leonard Carder LLP
1330 Broadway, Suite 1450
Oakland, CA 94612
Re: Case No. SF-UM-779-H
University of California
ORDER TO SHOW CAUSE
Dear Interested Parties:
The above-referenced petition for unit modification was filed with the Public Employment
Relations Board (PERB or Board) on December 22, 2016. The University Professional and
Technical Employees, CWA Local 9119 (UPTE) seeks to modify the Technical Unit (TX unit)
of employees of the University of California (UC). Pursuant to the Higher Education
Employer-Employee Relations Act (HEERA)' U TE seeks to add to the unit the classifications
of Systems Administrator I, II, and III.
Factual Summary-SysAdmin Positions
In the last several years, UC has been reviewing job classifications of its non-represented
employees as part of a program called Career Tracks. The purpose of Career Tracks is to align
written job classifications with the actual work performed by the employees. As part of this
program, non-represented employees may be reassigned to new job titles that better describe
the specific work they perform.
As part of the Career Tracks program, UC created three new job classifications: System
Administrator I, II, and III (SysAdmins). Most incumbents in these positions were previously
in the classification of Programmer Analyst. However, the work they perform remains the
same.
HEERA is codified at Government Code section 3560 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA 	EDM	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
March 30, 2017
Stephanie Leider, Senior Counsel
University
of
California, Office
of
the General Counsel
1111 Franklin Street, 8th Floor
Oakland, CA 94607-5200
Andrew Ziaja, Attorney
Leonard Carder LLP
1330 Broadway, Suite 1450
Oakland, CA 94612
Re: 	Case No. SF-UM-779-H
University
of
California
ORDER TO SHOW CAUSE
Dear Interested Parties:
The above-referenced petition for unit modification was filed with the Public Employment
Relations Board (PERB or Board) on December 22, 2016. The University Professional and
Technical Employees, CWA Local 9119 (UPTE) seeks to modify the Technical Unit (TX unit)
of
employees
of
the University
of
California (UC). Pursuant to the Higher Education
Employer-Employee Relations Act (HEERA)1 UPTE	P 	seeks to add to the unit the classifications
of
Systems Administrator
I,
II, and III.
Factual Summary-SysAdmin Positions
In the last several years, UC has been reviewing job classifications
of
its non-represented
employees as part
of
a program called Career Tracks. The purpose
of
Career Tracks is to align
written job classifications with the actual work perforn1ed by the employees. As part
of
this
program, non-represented employees may be reassigned to new job titles that better describe
the specific work they perforn1.
As part
of
the Career Tracks program, UC created three new job classifications: System
Administrator I, II, and III (SysAdmins). Most incumbents in these positions were previously
in the classification
of
Programmer Analyst. However, the work they perfonn remains the
same.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.

SF-UM-779-H
March 30, 2017
Page 2
According to UC, the TX unit includes 4,059 employees. UPTE seeks to add all the
SysAdmins to the TX unit. According to UC, there are 325 SysAdmins.
The job summary for the SysAdmins states:
Involves serving as the technical administrator for hardware,
operating systems, and network management. Plans and
coordinates the installation, configuration and testing of hardware
and software components. Work may involve central or
departmental computer systems and networks. Includes web
systems administration.
UC's job description matrix places the SysAdmins in the Information Technology job family.
UC categorizes positions eligible for Career Tracks as either Operational and Technical,
Professional, or Supervisory and Management. It has categorized the SysAdmins as
"professional."
UPTE provides job descriptions for all three levels of the SysAdmin positions. According to
UC, these job descriptions were developed as part of the "Career Compass" program, which
was a precursor to Career Tracks, and was implemented only at UC Berkeley. However, UC
states that the information provided by UPTE is "not materially different" from later
documentation developed through Career Tracks. Thus, it is assumed herein that the job
descriptions accurately describe the educational background required for the position. The job
descriptions state that SysAdmins must have a "Bachelors degree in related area and/or
equivalent experience/training."
Factual Summary-Representation History
PERB configured the TX unit in 1982, in Unit Determination for Technical Employees of the
University of California (1982) PERB Decision No. 241-H (Unit Determination). This
decision established three units of technical employees, including the TX unit. In 1994, UPTE
became the exclusive representative of the TX unit.
The Unit Determination decision describes employees in the TX unit as follows:
... nonprofessional employees whose work involves the use of
independent judgment and the exercise of specialized skills, often
gained through advanced education or training.
(Unit Determination, supra, PERB Decision No. 241-H at p. 7.)
A classification in the TX unit is Computer Resource Specialist (CRS), Level 1 and Level 2.
Job duties included in this position are: set up and maintain computer systems, manage
oth of these numbers are as of the date the petition was filed, December 22, 2016.
SF-UM-779-H
March 30, 2017
Page 2
According to UC, the TX unit includes 4,059 employees. UPTE seeks to add all the
SysAdmins to the TX unit. According to UC, there are 325 SysAdmins.2
The job summary for the SysAdmins states:
Involves serving
as
the technical administrator for hardware,
operating systems, and network management. Plans and
coordinates the installation, configuration and testing
of
hardware
and software components. Work may involve central or
departmental computer systems and networks. Includes web
systems administration.
UC's job description matrix places the SysAdmins in the Infomiation Technology job family.
UC categorizes positions eligible for Career Tracks as either Operational and Technical,
Professional, or Supervisory and Management. It has categorized the SysAdmins as
"professional."
UPTE provides job descriptions for all three levels
of
the SysAdmin positions. According to
UC, these job descriptions were developed as part
of
the "Career Compass" program, which
was a precursor to Career Tracks, and was implemented only at UC Berkeley. However, UC
states that the information provided by UPTE is "not materially different" from later
documentation developed through Career Tracks. Thus, it is assumed herein that the job
descriptions accurately describe the educational background required for the position. The job
descriptions state that SysAdmins must have a "Bachelors degree in related area and/or
equivalent experience/training."
Factual Summary-Representation History
PERB configured the TX unit in 1982, in Unit Determination for Technical Employees
of
the
University
of
California (1982) PERB Decision No. 241-H (Unit Deterniination). This
decision established three units
of
technical employees, including the TX unit. In 1994, UPTE
became the exclusive representative
of
the TX unit.
The Unit Determination decision describes employees in the TX unit as follows:
... nonprofessional employees whose work involves the use
of
independent judgment and the exercise
of
specialized skills, often
gained through advanced education or training.
(Unit Determination, supra, PERB Decision No. 241-H at p. 7.)
A classification in the TX unit is Computer Resource Specialist (CRS), Level 1 and Level 2.
Job duties included in this position are: set up and maintain computer systems, manage
2
BBoth of these numbers are as of the date the petition was filed, December 22, 2016.

SF-UM-779-H
March 30, 2017
Page 3
computer applications, convert files, and supervise the operation of a local area network.
Some of these job duties overlap with the job duties of the new SysAdmin classifications.
And, in December 2016, UC Davis planned to reclassify a CRS employee as a SysAdmin, thus
showing that the job duties were comparable.
In 2007, UC created a series of Technical Support Analyst (TSA) positions. In April 2009,
UPTE and UC settled case number SF-UM-674-H by modifying the TX unit to include the
positions TSA I, II, and III. TSAs perform job duties involving computing systems and
network support, primarily in a centralized helpdesk environment.
In 2015, UC created a series of Business Technical Support Analysts (BTSAs). These
positions, similar to TSAs, also performed computing and network support in a helpdesk
environment. UPTE filed a petition for unit modification, case number SF-UM-765-H. On
November 7, 2016, PERB issued an administrative determination and unit modification order
to include the BTSA positions in the TX unit.
Applicable Statutes and Regulations
PERB Regulation 32781(a)(1) provides that an employee organization may petition for unit
modification to add unrepresented classifications or positions to the unit. PERB Regulation
32781(b) and (c) allow the employee organization (or employer) to petition for unit
modification in order to make technical changes to clarify or update the unit description, and to
resolve a dispute as to unit placement of a new classification or position.
PERB Regulation 32781(e)(1) provides:
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.
Section 3562 (o)(1) defines "professional employee" as follows:
Any employee engaged in work: (A) predominantly intellectual
and varied in character as opposed to routine mental, manual
mechanical or physical work; (B) involving the consistent
exercise of discretion and judgment in its performance; (C) of a
character so that the output produced or the result accomplished
cannot be standardized in relation to a given period of time; and
(D) requiring knowledge of an advanced type in a field of science
or learning customarily acquired by a prolonged course of
PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
SF-UM-779-H
March 30, 2017
Page 3
computer applications, convert files, and supervise the operation
of
a local area network.
Some
of
these job duties overlap with the job duties
of
the new SysAdmin classifications.
And, in December 2016, UC Davis planned to reclassify a CRS employee as a SysAdmin, thus
showing that the job duties were comparable.
In 2007, UC created a series
of
Technical Support Analyst (TSA) positions. In April 2009,
UPTE and UC settled case number SF-UM-674-H by modifying the TX unit to include the
positions
TSAI,
II, and III. TSAs perfom1 job duties involving computing systems and
network support, primarily in a centralized helpdesk environment.
In 2015, UC created a series
of
Business Technical Support Analysts (BTSAs). These
positions, similar to TSAs, also perfonned computing and network support in a helpdesk
environment. UPTE filed a petition for unit modification, case number SF-UM-765-H. On
November 7, 2016, PERB issued an administrative detem1ination and unit modification order
to include the BTSA positions in the TX unit.
Applicable Statutes and Regulations
PERB Regulation 32781(a)(1)3 provides that an employee organization may petition for unit
modification to add unrepresented classifications or positions to the unit. PERB Regulation
32781 (b) and (
c)
allow the employee organization (or employer) to petition for unit
modification in order to make technical changes to clarify or update the unit description, and to
resolve a dispute as to unit placement
of
a new classification or position.
PERB Regulation 32781(e)(l) provides:
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.
Section 3562 (o)(l) defines "professional employee" as follows:
Any employee engaged in work: (A) predominantly intellectual
and varied in character as opposed to routine mental, manual
mechanical or physical work; (B) involving the consistent
exercise
of
discretion and judgment in its performance; (C)
of
a
character so that the output produced or the result accomplished
cannot be standardized in relation to a given period
of
time; and
(D) requiring knowledge
of
an advanced type in a field
of
science
or learning customarily acquired by a prolonged course of
3 PERB regulations are codified at California Code of Regula6ons, title 8, section
31001 et seq.

SF-UM-779-H
March 30, 2017
Page 4
specialized intellectual instruction and study in an institution of
higher learning or a hospital, as distinguished from a general
academic education or from an apprenticeship or from training in
the performance of routine mental, manual or physical processes.
Section 3579 (b) provides:
There shall be a presumption that professional employees and
nonprofessional employees shall not be included in the same
representation unit. However, the presumption shall be rebuttable
..
Discussion
1. 	Regulatory Basis for Unit Modification Petition and Proof of Support
As a threshold matter, this unit modification petition is appropriately considered under PERB
Regulation 32781(a)(1). The SysAdmins are currently unrepresented, and so UPTE may
properly petition to represent them.
UC contends that UPTE must establish a change in circumstances in order to place the
SysAdmins in the TX unit. This appears to be a reference to the rule that where PERB itself
has made a unit determination, subsequent modifications to that unit require a showing of
changed circumstances. (See, e.g., Regents of the University of California (1995) PERB Order
No. Ad-269-H.) This doctrine allows the parties to relitigate representation matters if a change
of circumstances is shown. (Id. at p. 5.) Here, the original unit was configured in 1982, and
UPTE was not a party. The SysAdmins are newly-created positions and so did not exist at the
time the TX unit was created. The placement of SysAdmins was not litigated in 1982 and so it
cannot be relitigated now. It appears from the information provided that the change in
circumstances doctrine does not apply.
PERB Regulation 32781(e)(1) requires proof of support where the proposed addition of
positions would increase the unit by more than 10%. The existing unit size is 4,059, so 10%
would be 405.9. UPTE seeks to add 325 employees, which is fewer than 10% of its bargaining
unit. Accordingly, UPTE is not required to provide proof of support.
UC argues that the 10% rule should be applied, to further the statutory purposes of HEERA
and to protect the employees' interests. However, the Board has clearly ruled on this issue
already. PERB has held that "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 is placed." (Regents of the University of California (2010)
PERB Decision No. 2107-H.) Consequently, when the addition of classifications to an
established unit would increase the size of the established unit by less than ten percent, PERB
may not require proof of employee support. (Ibid.) This rule is not discretionary. (Ibid.)
Therefore, PERB cannot require proof of support in this instance.
SF-UM-779-H
March 30, 2017
Page4 
specialized intellectual instruction and study in an institution
of
higher learning or a hospital,
as
distinguished from a general
academic education or from an apprenticeship or from training in
the performance
of
routine mental, manual or physical processes.
Section 3579 (b) provides:
There shall be a presumption that professional employees and
nonprofessional employees shall not be included in the same
representation unit. However, the presumption shall be rebuttable
Discussion
1. 	Regulatory Basis for Unit Modification Petition and Proof
of
Support
As a threshold matter, this unit modification petition is appropriately considered under PERB
Regulation 32781(a)(l). The SysAdmins are currently unrepresented, and so UPTE may
properly petition to represent them.
UC contends that UPTE must establish a change in circumstances in order to place the
SysAdmins in the TX unit. This appears to be a reference to the rule that where PERB itself
has made a unit detennination, subsequent modifications to that unit require a showing
of
changed circumstances. (See, e.g., Regents
of
the University
of
California (1995) PERB Order
No. Ad-269-H.) This doctrine allows the parties to relitigate representation matters
if
a change
of
circumstances is shown. (Id. at p. 5.) Here, the original unit was configured in 1982, and
UPTE was not a party. The SysAdmins are newly-created positions and so did not exist at the
time the TX unit was created. The placement
of
SysAdmins was not litigated in 1982 and so it
cannot be relitigated now. It appears from the infonnation provided that the change in
circumstances doctrine does not apply. 	·
PERB Regulation 32781(e)(l) requires proof
of
support where the proposed addition
of
positions would increase the unit by more than 10%. The existing unit size is 4,059, so 10%
would be 405.9. UPTE seeks to add 325 employees, which is fewer than 10% of its bargaining
unit. Accordingly, UPTE is not required to provide proof
of
support.
UC argues that the 10% rule should be applied, to further the statutory purposes
of
HEERA
and to protect the employees' interests. However, the Board has clearly ruled on this issue
already. PERB has held that "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 is placed." (Regents
of
the University
of
California (2010)
PERB Decision No. 2107-H.) Consequently, when the addition of classifications to an
established unit would increase the size of the established unit by less than ten percent, PERB
may not require proof of employee support. (Ibid.) 	This rule is not discretionary. (Ibid.)
Therefore, PERB cannot require proof of support in this instance.

SF-UM-779-H
March 30, 2017
Page 5
2. 	Exclusion of Professional Employees
UC contends that the SysAdmins are professional employees and therefore cannot be in the TX
unit, which is comprised of non-professional employees.
Section 3562 (o)(1) defines a professional employee for the purposes of unit modification
petitions. Under this definition, an employee must meet all of four criteria: (1) engage in
intellectual and varied work; (2) use discretion and judgment; (3) produce output or results that
cannot be standardized in relation to a period of time; and (4) possess advanced knowledge
usually acquired by a specialized or advanced degree, as opposed to a general academic
education.
SysAdmins do not meet the fourth criteria and therefore cannot be defined as professional.
SysAdmins are not required to have a college degree-they may have a Bachelor's degree or
they may satisfy the education requirement by showing equivalent training and experience.
SysAdmins are not required to have a specialized or advanced degree, or "a prolonged course
of specialized intellectual instruction and study in an institution of higher learning or a
hospital."
Regents of the University of California (2010) PERB Decision No. 2107-H is instructive to
show the type of educational background required of professionals. In that case, PERB held
that Case Managers in a healthcare setting were appropriately placed in UC's Healthcare
Professionals bargaining unit. Case Managers were required to have either a nursing degree
RN) or a Masters in Social Work. (Id. at pp. 8, 27.) These are specialized and/or advanced
degrees.
UC contends that it has categorized the SysAdmin positions as "professional" for purposes of
its Career Tracks program. The job descriptions provide that the SysAdmin II classification
"applies professional concepts," and that SysAdmins II and III perform work that is "decidedly
professional, involving the management of systems and services, engagement in analysis and
evaluation of computer systems, and the writing of complex script." While this information
may show that SysAdmins meet some of the criteria of section 3562 (o)(1), it is not established
that they meet the educational criteria and qualify as "professional" under the statutory
definition.
3. 	Community of Interest Factors
Section 3579 provides that "in each case where the appropriateness of a unit is an issue, in
determining an appropriate unit, the board shall take into consideration" the community of
interest factors. However, where the only question presented is whether a position must be
excluded from the bargaining unit, for example, on the basis that it is a confidential or
supervisory position, then the community of interest analysis is not needed. (Hemet Unified
School District (1990) PERB Decision No. 820, at p. 10.) Here, the question raised is whether
the SysAdmins should presumptively be excluded from the unit on the basis that they are
professionals. This does not appear to raise a question of unit appropriateness necessitating a
community of interest analysis.
SF-UM-779-H
March 30, 2017
Page 5
2. 	Exclusion
of
Professional Employees
UC contends that the SysAdmins are professional employees and therefore cannot
be
in the TX
unit, which is comprised
of
non-professional employees.
Section 3 562 (o )(1) defines a professional employee for the purposes
of
unit modification
petitions. Under this definition, an employee must meet all
of
four criteria: (1) engage in
intellectual and varied work; (2) use discretion and judgment; (3) produce output or results that
cannot
be
standardized in relation to a period
of
time; and (4) possess advanced knowledge
usually acquired
by
a specialized or advanced degree, as opposed to a general academic
education.
SysAdmins do not meet the fourth criteria and therefore cannot be defined as professional.
SysAdmins are not required to have a college
degree-they
may have a Bachelor's degree or
they
may
satisfy the education requirement
by
showing equivalent training and experience.
SysAdmins are not required to have a specialized or advanced degree, or
"a
prolonged course
of
specialized intellectual instruction and study in an institution
of
higher learning or a
hospital."
Regents
of
the University
of
California (2010) PERB Decision No. 2107-H is instructive to
show the type
of
educational background required
of
professionals. In that case, PERB held
that Case Managers in a healthcare setting were appropriately placed in UC's
Healthcare
Professionals bargaining unit. Case Managers were required to have either a nursing degree
(RN) or a Masters in Social Work. (Id. at pp. 8, 27.) These are specialized and/or advanced
degrees.
UC contends that it has categorized the SysAdmin positions as "professional" for purposes
of
its Career Tracks program. The job descriptions provide that the SysAdmin II classification
"applies professional concepts," and that SysAdmins II and III perform work that is "decidedly
professional, involving the management
of
systems and services, engagement in analysis and
evaluation
of
computer systems, and the writing
of
complex script." While this information
may show that SysAdmins meet some
of
the criteria
of
section 3562 (o)(l), it is not established
that they meet the educational criteria and qualify as "professional" under the statutory
definition.
3. 	Community of Interest Factors
Section 3579 provides that "in each case where the appropriateness
of
a unit is an issue, in
determining an appropriate unit, the board shall take into consideration" the community
of
interest factors. However, where the only question presented is whether a position must be
excluded from the bargaining unit, for example, on the basis that it is a confidential or
supervisory position, then the community
of
interest analysis is not needed. (Hemet Unified
School District (1990) PERB Decision No. 820, at p. 10.) Here, the question raised is whether
the SysAdmins should presumptively be excluded from the unit on the basis that they are
professionals. This does not appear to raise a question of unit appropriateness necessitating a
community of interest analysis.

SF-UM-779-H
March 30, 2017
Page 6
To the extent that a community of interest analysis is required, UPTE has established several
of the factors. The computer system job duties and work performed by SysAdmins relate
closely to similar work performed by CRSs, TSAs and BTSAs, all positions within the TX
unit. These classifications all provide support for software, computer networks, and computing
systems and devices. SysAdmins and CRSs work in the same departments, and sometimes
have common supervision. Inclusion of the SysAdmins in the TX unit would avoid
proliferation of units, and no party has identified another bargaining unit in which the
SysAdmins would more appropriately belong.
In light of the above, UC is afforded this opportunity to SHOW CAUSE as to why the unit
modification petition should not be granted. 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 April 14. 2017. Service and proof of service pursuant to PERB
Regulation 32140 are required.
Upon receipt of UC's argument and factual assertions, or the expiration of the time allowed for
same, the undersigned shall contact each of the parties regarding further case processing steps,
including a deadline for responses to the UC's submittal, if requested.
Sincerely,
Laufd Z. Davis
Supervising Regional Attorney
LD
SF-UM-779-H
March 30, 2017
Page 6
To the extent that a community
of
interest analysis is required,
UPTE has established several
of
the factors.
	The
computer system
job
duties and work
perfo1111ed
by
SysAdmins relate
closely to similar
work
performed
by
CRSs ,
TSAs
and
BTSAs
, all positions within the TX
unit. These classifications all provide suppo1i for software , computer networks, and computing
systems and devices. SysAdmins and CRSs work in the
same
departments, and sometimes
have common
supervision. Inclusion
of
the SysAdmins in
the TX
unit would avoid
proliferation
of
units, and no
party
has identified another bargaining unit in which the
SysAdmins would more
appropriately belong.
In light
of
the above,
UC
is afforded this opp01iunity to
SHOW CAUSE
as to why the unit
modification petition should not be granted. Factual asse1iions
must
be
supported
by
declarations
under penalty
of
pe1jury
by
witnesses with personal knowledge and should
indicate that the witness,
if
called, could competently testify about the facts asserted.
	If
the
facts asse1ied 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 April 14, 2017. Service and
proof
of
service pursuant to PERB
Regulation 32140 are required.
Upon receipt
ofUC
' s argument and factual assertions, or the expiration
of
the time allowed for
same , the undersigned shall contact each
of
the parties regarding further case processing steps,
including a deadline for responses to the UC ' s submittal ,
ifrequested.
Sincer~
,
t
au
[j
Z. Davis
Supervising Regional Attorney
LD