Trustees of the California State University (PERB 1881H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Employer,
and
ACADEMIC PROFESSIONALS OF
CALIFORNIA,
Exclusive Representative,
and
CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
Exclusive Representative.
Case Nos. LA-UM-724-H
LA-UM-725-H
PERB Decision No. 	1881-H
J a n u a r y 	2 3 , 	2007
Appearances: 	Rothner, Segall & Greenstone by Bernhard Rohrbacher, Attorney, for Academic
Professionals of California; Catherine Kennedy, Attorney, for California State Employees
Association.
Before Duncan, Chairman; Shek and Neuwald, Members.
DECISION
NEUWALD, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by California State University Employees Union, SEIU
Local 2579 (CSUEU), an affiliate of California State Employees Association (CSEA)1, of an
T CSEA was comprised of four separate entities, a civil service division, a retiree
division, a supervisory division, and employees of Trustees of the California State University
(CSU). 	Subsequent to the petition and hearing, the CSU Division of CSEA separately
incorporated as an affiliate of CSEA. 	It incorporated as CSUEU. PERB accepted the
amendment to the certification in January 2005.

administrative law judge's (ALJ) proposed decision finding that a new classification belonged
to Unit 4, thereby partially denying a petition that would place the new classification in Unit 7.
We have reviewed the entire record in this case including, but not limited to, the unit
modification petition, the parties briefs, the transcripts and exhibits, the proposed decision,
CSUEU's exceptions, and Academic Professionals of California's (APC) response, and, in
accord with the discussion below, find it appropriate to remand this case to the ALJ to conduct
a hearing for the purpose of taking additional evidence.
BACKGROUND
The CSU, a higher education employer under the Higher Education Employer-
Employee Relations Act (HEERA),2 filed a unit modification petition on February 24, 2004
seeking:
1. 	The creation of a new library services specialist (LSS) classification to be
placed in CSU Unit 7, Clerical and Administrative Support Services;
2. 	The elimination of library assistant (LA) I, II, III, and IV classifications from
Unit 7; and
3. 	The elimination of lead library assistant (LLA) II, III, and IV classifications
from Unit 4, Academic Support.3,4
2HEERA is codified at Government Code section 3560, et seq.
3CSU was essentially combining the two classifications of LAs and LLAs. 	There was
no dispute between the parties that the two positions should be combined for they shared a
community of interest. They worked in the same locations, at the same hours, under the same
supervisors, and under the same rules and policies.
4LLAs were originally titled Supervising Library Assistants (SLA). LLAs and SLA
will be used interchangeably.
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Simply stated, CSU abolished two classifications, LAs and LLAs, and created one new
classification, LSS. 	The abolished classifications were placed in different units. 	The LLAs
were placed in Unit 4 by PERB in Unit Determination for Employees of the California State
University and Colleges (1981) PERB Decision No. 173-H (Unit Determination for
Employees). LAs, on the other hand, were placed in Unit 7 by stipulation. Unit 4 and Unit 7
are represented by different unions who now seek to place the new LSS classification into their
respective unit.
On March 5, 2004, APC filed with PERB its own unit modification petition
(Case No. LA-UM-725-H), seeking clarification of the assignment of duties of the LLA
classification.
On March 19, 2004, CSEA sent PERB a letter opposing CSU's petition. Later, on
March 30, 2004, CSEA sent PERB another letter, this time supporting CSU's petition.
ALJ'S PROPOSED DECISION
The ALJ found that the LSS classification belonged in Unit 4 as opposed to Unit 7. In
reaching this conclusion, the ALJ first examined whether PERB's original determination
regarding SLA employees was applicable to the new LSS employees. The ALJ concluded that
it was, stating, "[i]t is thus clear from the draft classification standard and other evidence that
LSS employees will now be doing the work that was formerly done by the SLA employee [sic]
PERB placed in Unit 4." In reaching this conclusion, the ALJ dismissed CSU and CSUEU's
argument that LSS employees would not be performing as much "lead" work. The ALJ
commented that "lead" work was not "something that PERB particularly attributed to SLA
employees." The ALJ noted that, even if it were, LSS responsibilities at skill level III
explicitly include "providing lead direction to other library . . . staff." The ALJ further
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commented that "the evidence shows that such 'lead' work is already widely dispersed in some
campus libraries."
Having determined that PERB's original determination regarding SLAs was applicable
to the new LSS classification, the ALJ employed the rebuttable presumption test set forth in
State of California (Department of Personnel Administration) (1990) PERB Decision
No. 794-S (Personnel Administration): "PERB's placement is presumptively valid, and the
burden is now on CSU to show that the proposed placement in Unit 7 is more appropriate."
The ALJ examined whether CSU and CSUEU met their burden to show that the proposed
placement in Unit 7 was more appropriate. The ALJ found that they did not. The ALJ stated
that there was not a community of interest with the administrative employees in Unit 7. Unit 7
contained administrative as well as clerical employees. The ALJ noted that LSS employees
were not characterized as administrative, but rather as "technical and paraprofessional." The
ALJ further noted that even though LSS employees '"may assist in supporting the [library]
unit's budgetary and/or other administrative activities,' [it] is in addition to their primary
technical and paraprofessional duties." The ALJ summarily dismissed CSU's argument that
Unit 7 is appropriate because library work has become more technical and CSUEU's Unit 9
contains technical employees. 	The ALJ stated that "[t]his point might have more significance
if CSU was proposing to place LSS employees in Unit 9, but CSU [was] not doing that." The
ALJ also dismissed CSU's argument that placing the LSS classification in Unit 7 would
'"impact a minimal number of employees' because, as of October 2003, there were only
23 LLA employees in Unit 4 and 502 LA employees in Unit 7." The ALJ stated that:
This argument might be compelling if PERB had determined that
the 502 LA employees belonged in Unit 7, but PERB never did
so; PERB only determined that the LLA employees belonged in
Unit 4. 	CSU's argument might be persuasive if it appeared that
A	4

the LA employees had been properly placed in Unit 7, despite the
lack of PERB determination.
On the whole, I find it more appropriate to leave 23 employees in
a unit that PERB determined to be appropriate for them than to
leave 502 employees in a unit that may never have been
appropriate for them.
CSUEU'S EXCEPTIONS
CSUEU excepted to the ALJ's proposed decision on the following three grounds, the ALJ:
1. 	Erroneously determined that CSU failed to meet its burden of proof;
2. 	Misapplied HEERA section 3579 by placing the new classification in Unit 4;
and
3. 	Arbitrarily moved 502 employees to a unit of 2,000 employees without a
showing of interest.
Each exception is discussed in turn.
CSUEU first argues that CSU met its burden under Personnel Administration which
requires a petitioning party to show that the proposed unit modification is "more appropriate"
to the status quo. 	CSUEU asserts that under Personnel Administration "more appropriate"
means "that a unit need not be 'the ultimate, best or only appropriate configuration.'" CSUEU
states that "[s]ince the legal presumption is to maintain the status quo and the status quo was
the uncontested and happy placement of 502 [LAs] in Unit 7, the appropriate ruling should
have favored moving the 23 [LLAs] to Unit 7 upon a finding of an internal community of
interest between the [LAs] and [LLAs]." CSUEU also argues that the ALJ's conclusion that
Unit 7 was inappropriate because PERB never determined that the 502 LAs were properly
assigned to Unit 7 ignores the fact that PERB sanctioned LAs' placement in Unit 7 consistent
5

with the criteria set forth in Centinela Valley Union High School District (1978) PERB
Decision No. 62. 	CSUEU further argues that both the evidence and the language of Unit
--------Determination for Employees raises the question of whether the LLAs should have ever been
classified as Unit 4 members. 	CSUEU states that "[a] review of the decision fails to show how
these employees shared a community of interest with classifications which shared a
'. . . common goal of providing non-instructional services which enable students to maximize
their educational experience by administering [sic] to their emotional, social, intellectual, and
cultural well-being.'"
Second, CSUEU argues that the ALJ misapplied HEERA section 3579 when he failed
to take into consideration all of the factors.5 Specifically, the ALJ failed to consider the
criteria in HEERA section 3579(a)(l), (2) and (4). In regards to Section 3579(a)(l), CSUEU
directs the Board's attention to the ALJ's lack of discussion regarding the "history of employee
representation with the employer." 	CSUEU states that significant differences exist in the
representational history:
[T]he paths of [LLAs] and [LAs] diverged when CSUEU
consistently negotiated higher salaries and benefits for its
members than APC was able to negotiate. 	[Cit. omitted.] Further
testimony indicated that campuses found it difficult to recruit
[LLAs] in part because they were paid lower salaries than the
[LAs] with whom they worked.
CSUEU also argues that the numbers speak for themselves. The number of LLAs shrunk in
size while the LA classification continued to grow. 	CSUEU credits this growth to a better
bargaining history: 	"[t]he obvious reason is that [LAs], being represented by CSUEU, enjoyed
a better history of representation with the employer." In regards to the "companion factor," the
5CSUEU agreed with the ALJ's decision that an internal community of interest exists
between LAs and LLAs.
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"extent in which employees belong to the same employee organization," CSUEU again
references the numbers stating "the numbers attest to the overwhelming extent that CSUEU
represents employees doing [LA] work." CSUEU states that "[t]he upheaval caused by
moving 502 employees, who have enjoyed over 25 years of CSUEU representation, to a
different unit with a different exclusive bargaining representative cannot be understated."
In regards to HEERA section 3579(a)(2), CSUEU argues that: (1) LAs make more
money than LLAs, (2) APC completed negotiations and CSUEU is just entering into
negotiations, and (3) the resources and bargaining strength differ. 	CSUEU represents 15,000
employees whereas APC represents 2,000.
CSUEU further argues that in regards to HEERA section 3579(a)(4), the ALJ failed to
acknowledge or discuss how the movement of 502 employees into a unit made of 2,000 would
affect the objectives of providing the employees effective representation and the meet and
confer relationship.
In its last exception, CSUEU asserts that by moving 502 employees to a different unit
without any showing of interest, the ALJ contradicts the holding in Personnel Administration,
as well as violates PERB Regulation 32781.6 Such a move "ignores the established procedures
for employees to choose which exclusive representative they want to represent their interests to
the employer."
APC'S RESPONSE
APC argues that the ALJ correctly determined that the new classification belonged in
Unit 4. APC's response to CSUEU's exceptions is summarized as follows:
77
PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.

1. 	CSUEU failed to rebut the presumption that the Board's original placement of
SLAs in Unit 4 was improper.
2. The ALJ's conclusion that the original placement of LAs in Unit 4 was
inappropriate was based upon the evidence presented at the hearing and not
because PERB never determined that the LAs were properly assigned to Unit 7.
Were the Board to find the placement appropriate, APC requests that the
Board's decision placing SLAs in Unit 4 should be given more deference than
the stipulation placing the LAs in Unit 7 because one is a contested hearing.
3. 	The Board should reject CSUEU's invitation to focus exclusively on two related
community of interest factors, "the history of employee representation with the
employer" and "the extent to which the employees belong to the same employee
organization," for they ignore all other factors. APC further argues that the LAs
having a higher salary range does not demonstrate a better bargaining history
because "it does not tell us anything about the actual salaries earned by
employees in these classifications. It may be a difference on paper only, with
the actual salaries earned by LAs II, III, and IV being identical to, or even lower
than, those earned by LLAs II, III, and IV, respectively." Additionally, LLAs
decrease in size is not a result of its contract not being as employee friendly.
4. 	Lastly, the ALJ did not abuse his discretion when he placed the LSS
classification in Unit 4 without requiring proof of majority support. 	PERB
Regulation 32781 is permissive. It does not require a majority of support by
evidence of the word "may." Further, Personnel Administration, the only case
interpreting PERB Regulation 3278l(e) is not applicable to these facts because:
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[T]he issue in the present case is whether or not the ALJ
abused his discretion when he did not require such proof.
The Board's holding in Dept, of Pers. Adm'n that the
regional director could require proof of majority support
in that case cannot dictate a holding here that the ALJ
should have required such proof in this case.
Additionally, Personnel Administration is distinguishable because "the petition sought
to include, based on 'a change in circumstances regarding the[ir] job duties,' seven
pre-existing classifications that had previously been properly excluded as
supervisory." In this case, there is a new classification. Further, the new classification
was to be filled by incumbents that had previously been misplaced. 	Therefore, "[t]he
Board should refrain from requiring proof of majority support where failure of such
proof would result in leaving some of the LSS employees (the former LAs) in a unit
that is inappropriate--not just less appropriate~for them and, worse yet, moving other
LSS employees (the former LLAs) from a unit that is appropriate for them to one that is
not." APC also points out that CSUEU makes this argument for the first time on
appeal.
DISCUSSION
In determining that the new LSS classification belonged in Unit 4, the ALJ misapplied
the rebuttable presumption test set forth in Personnel Administration:
In order to rebut the presumptive validity of the original state unit
determination, the petitioning party must show that its proposed
modification is more appropriate.
The rebuttable presumption test is used when parties seek to move an existing classification
from one bargaining unit to another or to separate a bargaining unit. The rebuttable
presumption test was utilized by the Board in Personnel Administration when CSEA sought to
separate Unit 3 into two units, one unit for teachers and librarians who worked in the State
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Department of Corrections and California Youth Authority and a second unit for all remaining
Unit 3 members. Additionally, while not explicitly stated, a form of the rebuttable
presumption test was utilized by the Board in Regents of the University of California (1986)
PERB Decision No. 586-H, when the Laborers International Union sought to remove
protective service officers at Lawrence Livermore National Laboratory from the service unit
and place them in their own unit. The rebuttable presumption test, however, is not properly
used when placing a new classification into a unit because there is no presumption to rebut.7
The dissent in this case asserts that: "[e]ven if this conclusion [that the LSS
classification belonged to Unit 4] could be construed as an order, the [PERB] should not treat it
as one because absent a unit modification petition to add the LSS classification to Unit 4, it
would be premature for the Board to address the placement of the LSS classification in
Unit 4." [Emphasis added.] We disagree. First, it should be noted that the Board has yet to
determine the appropriate placement of the new LSS classification or order the placement
thereof. 	Second, when the appropriate classification is determined pursuant to our discussion
above, it is not "premature" for the Board to order the placement of the new LSS classification
in that unit simply because a specific petition requesting the placement of the new LSS
classification in that unit was not filed. We note that two unit modification petitions were
filed. If the Board were to sit idly by and wait for a third petition specifically requesting the
placement of the new LSS classification in the determined unit it would be a waste of not only
PERB's time and resources but also that of the parties. Furthermore, the employees would be
left in a state of uncertainty because even though a determination will be made that they
"belong" to a certain unit, they would not be "placed" in that unit.
Additionally, the Board is not prohibited under the HEERA from placing the new LSS
classification in the appropriate unit absent a specific petition requesting such. 	In fact, in
determining the appropriate unit and ordering the actual placement of the new LSS
classification in that unit, the Board would be effectuating the policies of the HEERA. Under
the HEERA, the Board is granted broad remedial power, including the authority to require
affirmative action.
Specifically, HEERA section 3563 provides, in pertinent part:
This chapter shall be administered by the [PERB]. In
administering this chapter the board shall have all of the
following rights, powers, duties and responsibilities:
(a) To determine in disputed cases, or otherwise approve,
appropriate units.
10

The Board has yet to place the new classification in a unit.8 Rather, in determining the
appropriate placement in a unit for a new classification, it is necessary to utilize the criteria
found in HEERA section 3579, e.g., shared goals, training, working conditions, interchange
with other employees, etc.
The primary focus of the record in this case was whether the new LSS classification
was more aligned with the LA classification or the LLA classification, as that would be
determinative of what unit the new LSS classification belonged. 	The record is sparse
regarding the criteria found in HEERA section 3579, e.g., shared goals, training, working
conditions, interchange with other employees, etc., necessary to make a determination as to the
appropriate placement of the new LSS classification. Thus, it is necessary to reopen the
(e) To establish by regulation appropriate procedures for review
of proposals to change unit determinations.
(h) To investigate unfair practice charges or alleged violations of
this chapter, and to take any action and make any determinations
in respect to these charges or alleged violations as the board
deems necessary to effectuate the policies of this chapter.
(m) To take any other action as the board deems necessary to
discharge its powers and duties and otherwise effectuate the
purposes of this chapter.
Additionally, PERB Regulation 32786(a) provides:
(a) 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.
As such, it is not only appropriate, but necessary, for the Board to determine and place
the new LSS classification in the appropriate unit.
8This decision does not address whether LAs were appropriately placed in Unit 7.
11

hearing and that the parties be permitted to introduce additional evidence including, but not
limited to, additional testimony of those witnesses who testified at the hearing.
Additionally, it should be noted that the ALJ's proposed decision would have moved
502 employees to a unit comprised of 2,000 employees, thereby increasing the size of the unit
by approximately 25 percent. 	In State of California, Department of Personnel Administration
(1989) PERB Decision No. 776-S, the California Correctional Peace Officers Association
challenged the regional director's determination that proof of majority support among
employees in the classification to be added to the unit was required. The regional director,
exercising her discretionary authority under PERB Regulation 3278l(f), 	required a proof of
majority support because:
In situations where a unit modification petition seeks to add a
substantial number of employees to an established bargaining
unit, the Board has required proof of majority support as a matter
of practice since adoption of the current unit modification
regulations. In like manner, the National Labor Relations Board
(NLRB) finds that requests similar to that herein raise a 'question
concerning representation.' [Fnt. omitted.]
Based upon the above, it is my judgment that a petition to add
approximately 2,000 employees to the bargaining unit, thereby
increasing the unit size by more than 22% is precisely the type of
situation envisioned by the Board in the discretionary language of
current Board Regulation 32768l(f) [sic]. Any subsequent
addition to the bargaining unit of such classifications previously
excluded from the unit would constitute a substantial change in
the structure of that unit. Under the above circumstances,
therefore, a question concerning representation necessitating the
filing of majority support is raised under Regulation 3278 l(f),
Board practice and NLRB case law.
The Board found that "the regional director did not exercise the agency's discretion arbitrarily
on these facts, particularly because the size of the group of employees to be added to the unit in
this instance is substantial, and could reasonably be expected to change the structure of the unit
12

if added thereto." As such, we believe that the ALJ should have required a proof of support
from the appropriate unit.9
ORDER
The Board hereby, REMANDS this matter to the administrative law judge to conduct a
hearing for the purpose of taking additional evidence consistent with our discussion above,
and, upon completion of the hearing, make recommended findings of fact and conclusions of
law in consideration of the additional evidence and the existing record. Additionally, if the
unit placement determination would have the result of increasing the appropriate unit by
10 percent or more, than the new classification will only be added to the appropriate unit in the
event that the appropriate unit shows proof of support. 	If there is no showing of proof of
support, the new classification will not be added to a unit.
Chairman Duncan joined in this Decision.
Member Shek's dissent begins on page 14.
9We note that this is an unusual case in that CSU filed the petition. CSU, as the
employer, however, could not produce the proof of support and that the burden of proof of
support lay with the appropriate unit that would be increased by 10 percent or more.
13

SHEK, Member, dissenting: 	I respectfully disagree with the majority's decision to
remand this matter to an administrative law judge (ALJ) for further hearing. 	The purpose of
the majority's decision is to permit the parties to introduce additional evidence including, but
not limited to, additional testimony of those witnesses who already testified at the hearing.
I believe there is sufficient evidence in this case to support the issuance of a decision on
the merits. 	I would therefore argue against remanding this matter for further hearing before an
ALJ, based on the rationale that follows. All parties were given the opportunity to appear and
did appear at the hearing, during which they called, examined and cross-examined witnesses
and introduced documentary and other evidence on the issues. 	Since all parties were afforded
their right to participate in the hearing and present evidence, there is no reason to give any
party a proverbial "second bite at the apple."
Contrary to the majority's statement, the proposed decision neither placed the new
library services specialist (LSS) classification in Unit 4, the exclusive representative of which
was the Academic Professionals of California (APC), nor "would have moved 502 employees
to [Unit 4] a unit comprised of 2,000 employees . . . ." APC filed a unit modification petition
(Case No. LA-UM-725-H), not asking to add the new LSS classification to Unit 4, but seeking
to clarify the assignment of duties of the lead library assistant (LLA) classification.1 The ALJ
denied the joint petition of the Trustees of the California State University (CSU) and the
California State Employees Association (CSEA) to place the LSS classification in Unit 7,2 and
stated:
APC's petition in Case No. LA-UM-725-H was denied; and no exceptions were filed.
2CSEA is the exclusive representative of Unit 7.
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[T]he LSS classification belongs in Unit 4, and . . . CSU's
petition must be denied to the extent that it would place the LSS
classification in Unit 7.
.............. 	. .. . . . .
Because the LSS classification is found to belong in Unit 4, the
portion of CSU's petition that seeks to place the LSS
classification in Unit 7 is hereby DENIED.
The ALJ at no point ordered the LSS classification to be added to Unit 4. He only concluded
that the LSS classification belonged to Unit 4. Even if this conclusion could be construed as
an order, the Public Employment Relations Board (PERB or Board) should not treat it as one
because absent a unit modification petition to add the LSS classification to Unit 4, it would be
premature for the Board to address the placement of the LSS classification in Unit 4.
In the present matter, it is within the Board's purview to decide whether or not the ALJ
properly:
(1) 	granted CSU's unit modification petition (LA-UM-724-H), to
create a new LSS classification, and to eliminate the LA I, II, III
and IV classifications from Unit 7, and the LLA II, III and IV
classification from Unit 4; 	and
(2) 	denied the joint unit modification petitions of CSU and
CSEA (LA-UM-724-H), to place the new LSS classification in
Unit 7.
As the record demonstrates and the ALJ found, CSU established the library assistant
(LA) I and LA II classifications in 1962, and the LA III classification in 1972. CSU
implemented classification standards for LA I, II and III in 1978. In 1979, CSU established the
supervising library assistant (SLA) classification, and in 1981, PERB placed the SLA I, II and
III classifications within Unit 4. 	(Unit Determination for Employees of the California State
15

University and Colleges (1981) PERB Decision No. 173-H.) 	PERB held that "although these
employees serve as heads of various sections within the library, their supervisory functions are
exercised only with respect to clerical employees and student assistants." (Ibid., at p. 28.)
CSU did not implement classification standards for the SLA until 1991, at which time, CSU
changed the title from SLA to LLA. In the same year, CSU revised the classification standards
for LA, and created the "Library Assistant Series" to reflect the blurring of the distinctions
between the LA and LLA classifications. There was no move to place both the LA and LLA
classifications in the same bargaining unit until 2004, when CSU filed the unit modification
petition in the present matter. CSU petitioned PERB to authorize the elimination of the LA
and LLA classifications and the creation of the LSS classification, and to assign the new LSS
classification to Unit 7. Incumbents from the "Library Assistant Series," consisting of both
Unit 4 (LLA) and Unit 7 (LA) employees, will staff the LSS classification. Thus, I would
affirm the portion of the ALJ's proposed decision regarding CSU's unit modification petition
(Case No. LA-UM-724-H), to create a new LSS classification, and to eliminate the LA I, II, III
and IV classifications from Unit 7, and the LLA II, III and IV classifications from Unit 4.
In denying the joint unit modification petition of CSU and CSEA, the ALJ found that
the LSS employees would be doing the same work that was formerly done by the LLA
employees PERB placed in Unit 4. The ALJ also found PERB's placement to be
presumptively valid under State of California (Department of Personnel Administration)
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(1990) PERB Decision No. 794-S (Personnel Administration).3
I would submit that the Board could resolve the issue of whether or not CSU or CSEA
has shown that the proposed placement of the LSS classification in Unit 7 is more appropriate,
without considering the presumptive validity of PERB's original placement of similar duties in
Unit 4. 	It is well established that a party petitioning for modification of an existing unit must
show that its proposed modification is more appropriate than the existing unit. (Personnel
Administration; and State of California (Department of Personnel Administration) (1992)
PERB Decision No. 933-S.) As joint petitioners in a unit modification petition to place the
LSS classification in Unit 7, CSU and CSEA bore the burden of proof that Unit 7 was more
appropriate for the new classification - a burden that the ALJ found neither CSU nor CSEA
had sustained. 	The proposed decision aptly stated in part:
What is lacking in this case is evidence that LA and LLA
employees (and thus LSS employees) have a community of
interest with Unit 7 employees.
3The majority's discussion of the ALJ's misapplicability of the "rebuttable presumption
test" as utilized in Personnel Administration is troubling. First, the quotation on page 9 of the
majority decision left out crucial information to show that it was derived from a unilateral
opinion of Member Craib in a three-way split Board decision. 	The entire quotation should
have read, "In order to rebut the presumptive validity of the original state unit determination,
the petitioning party must show that its proposed modification is more appropriate. 	(Emphasis
in original.) I believe that the units petitioned for are more appropriate than the existing
Unit 3." (Emphasis added).
Second, the majority has not explained what the "rebuttable presumption test" entails.
Third, in stating that the rebuttable presumption test is "not properly used when placing
a new classification into a unit because there is no presumption to rebut", the majority ignores
the extensive factual record concerning the historical development of the LSS classification.
As the preponderance of the evidence demonstrates, CSU proposed the "new" LSS
classification for the purpose of creating a single classification that united Unit 4 and Unit 7
employees, who had been performing the same job in the same location under the auspices of
the "Library Assistant Series" since 1991.
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There is sufficient evidence in the record for the majority to render a decision affirming
or reversing the portion of the proposed decision denying the placement of the LSS
classification in Unit 7 based on the failure of CSU and CSEA to meet their burden of proof.
In stating that the "record is sparse regarding the criteria found in HEERA section 3579,.. "
the majority appears to have overlooked the case record that the ALJ and the parties to these
proceedings have dutifully created. As will be explained further below, the evidence in this
record sufficiently demonstrates the commonality among the LAs and LLAs, who will be
combined to form the LSS classification, and addresses whether the LSS classification is
distinct from Unit 7. More specifically, the evidence shows that CSEA's Unit 7 contains
administrative as well as clerical employees, and the LSS employees are characterized as
"technical and paraprofessional." The proposed decision stated, in part:
The draft [LSS classification standard] gives the following
overview of the four skill levels:.
Position Skill Level I - Incumbents at this level perform
clearly defined tasks, typically within one or two core functions.
Incumbents may oversee student workers performing similar or
related work within the library unit. 	[Emphasis added.]
Position Skill Level II - Incumbents at this level work
independently to [sic] perform more complex technical tasks in a
specified functional area within a library unit and may provide
functional oversight for assigned area. 	Incumbents also may be
responsible for coordinating work of student workers assigned to
the area and may participate in hiring, training, evaluating and
payroll processing of student workers. 	[Emphasis added.]
Position Skill Level III' - Incumbents at this level perform
more complex and/or specialized technical and paraprofessional
library duties to support daily operations and/or programs.
Incumbents often are responsible for overseeing daily operations
of a library unit(s), including providing lead work direction to
other library and clerical staff, as well as student workers, and
may assist in supporting the unit's budgetary and/or other
administrative activities. 	[Emphasis added.]
Position Skill Level IV - Incumbents at this level perform
the most complex paraprofessional and/or specialized library
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functions to support library operations and programs.
Incumbents often are responsible for overseeing daily operations
of (a) large or significant library unit(s), which may include
directly or indirectly providing lead work direction to other
library and clerical staff, as well as student workers, assigned to
the unit(s). Incumbents often are involved in supporting the
unit's budgetary and/or other administrative functions.
[Emphasis added.]
The draft lists a dozen 'core functions' or 'key functional areas.'
including circulation, reserves, and cataloguing and bibliographic
control. 	[Emphasis added.]
. . . . . . ...
Both CSU and CSEA correctly point out that CSEA's Unit 7
contains administrative as well as clerical employees. This point
would have more significance if LSS employee	- -	s were
characterized as administrative, but they are not; the draft
classification standard characterizes them instead as 'technical
and paraprofessional.' 	It is true that at Skill Level III and above
LSS employees 'may assist in supporting the [library] unit's
budgetary and/or other administrative activities,' but this is in
addition to their primary technical and paraprofessional duties.
This is hardly enough to show a significant community of interest
with the administrative employees in Unit 7. 	[Emphasis added.]
(Proposed dec, at pp. 6, 12.)
CSU presented three witnesses who testified that as a result of technology, the number
of employees in the "Library Assistant Series" decreased as the level of their expertise
increased. 	The job duties of LAs have evolved from clerical to para-professional and
technical. 	Since LAs and LLAs are performing a higher level of work, fewer LLAs are
needed. 	LAs and LLAs have the same community of interest - working in the same locations,
having the same supervisors, and following the same policies and procedures.
CSU witness Senior Manager of Compensation and Information Projects, CSU
Chancellor's Office, Gina Caywood (Caywood), testified that APC's Unit 4 covered student-
related positions, including credential analyst, student service professionals, evaluators, and
LLAs. 	Caywood's testimony also stated that CSEA's Unit 7 was a large unit consisting of a
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wide range of administrative positions and administrative classifications, ranging from the LAs
to administrative support and administrative coordinators.4
According to Caywood, CSEA's Unit 9 is a very large unit, consisting of a very wide
range of administrative professional, information technology and professional type positions.
Caywood further testified that the new LSS classification would better reflect the
current scope of work. 	It would incorporate the broader role of the para-professional on the
library, and their broader supportive role to the librarian in a variety of areas, such as special
collections and cataloguing. 	It would reflect the incorporation of technology and the Internet
into the delivery of library services and information.
Caywood also stated that as a result of technology, the LAs and LLAs had taken on a
much broader role in the library. 	The technical level of work being performed by LAs had
"definitely" increased. 	There is a lot more involvement with technology. 	Caywood elaborated
that it was not just a question of using and understanding databases, or using different
computer related tools to do their job, but also of understanding the impact of their decisions
on global changes in a database. 	Caywood emphasized that the "Library Assistant Series" was
"definitely ... closer to a professional level." Both LAs and LLAs perform a wide range of
duties, at a higher level of technical para-professional type work.
Caywood testified that CSU proposed to create one classification with four skill levels
encompassing the broad range of library assistant work because there was no difference in the
work done by the LAs and the LLAs. Employees would all be in the same classification,
namely the "Library Services Series." They would all have the same class code, and be in the
same group with different skill levels denoting different scopes of responsibilities.
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CSEA attached a certification of representative for "Unit 7 - Clerical and
Administrative Support Services," dated February 17, 1982, to its appellate brief filed with the
Board. 	The classifications are overwhelmingly clerical, secretarial, or administrative.

Cay wood also stated that a CSU study had found that LAs and LLAs worked side by
side. Usually, LAs are assigned to a certain function and they would back up other functions.
At some smaller campuses where there are fewer staff, the LAs have to support a broader
range of functions, but typically the LAs and LLAs worked side by side in every section of the
library, be it circulation, access services, or technical services.
CSU witness Associate Dean of the University Library, CSU Long Beach, Henry
Dubois (Dubois), testified that library operation had undergone revolutionary changes. 	It relies
upon technology for virtually every aspect of the operation: 	ordering of books, cataloging,
circulation, and statistics. Dubois stated that CSU used an integrated library system that
provided remote access to electronic information databases for CSU librarians and users. 	CSU
libraries are conduits to resources located locally and internationally. LAs and LLAs are
required to have the ability to manage these increasingly complex and changing electronic
systems. The technical skills that are required eclipse the managerial aspects of the job.
CSU witness Dean of the University Library, CSU Cal Poly Pomona, Harold Schleifer
(Schleifer), testified that over time, LAs were required to have a lot more expertise and
judgment in choosing among a variety of precedents and guidelines that would apply to a
particular situation. 	The library has moved from an environment of quality control into a
quality assurance mode of work. 	A lot of the information actually comes from colleagues that
are outside the library through "list serves," discussion groups and trading sessions. With the
integration of technology, the whole organization is less stratified than before. There is more
interdependence and integration. 	Schleifer also stated that some of the jobs had been
eliminated or were being done in different ways. The LAs in his library are within the various
units. There librarian and the LAs at various skill levels would accomplish a project or a
process together by assembling "various knowledge." The LSS classification would provide
increased flexibility that could be applied in all 23 different campuses.
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APC introduced four witnesses who testified to the duties of a LA IV, Lead, and a LLA
IV, and the negotiation history over the salary range of LLAs.
APC witness Barbara Stephens, a LA IV, lead at CSU Sacramento testified at the
hearing that over 50 percent of the duties of a LA IV, lead, involved "supervision in
management," including revision of current job description, evaluation, formation of hiring
committees and training.
APC witness Benjamin J. Shaw, a LLA IV at CSU Sacramento, testified that he acted
as the building coordinator, supervised various subunits in access services, and handled all
personnel matters relating to community service officers.
APC witness Charles Goetzel, president of APC, testified that during the negotiations
that transpired during 2000 and 2001, CSU proposed to increase the salary range of the LLAs,
but not the actual salary amount. APC proposed that CSU adopt an "in-range progression" for
LLAs, as a means to eliminate whatever salary differentials existed between the LA and LLA
classifications. 	The "in-range progression" would increase an employee's salary within the
employee's then salary range, not as a result of a reclassification, but rather as a result of
increased responsibilities of duties for market equity reasons.
As a witness for APC in addition to CSU, Schleifer testified that only LAs, LLAs and
the librarians would answer the bibliographically based questions from the library patrons.
Employees holding clerical positions would answer non-bibliographically based questions such
as library hours.
CSEA called one witness, a Library Assistant III at CSU, Cal Poly San Luis Obispo,
Joan Kennedy (Kennedy), and a member of Unit 7. 	Kennedy testified that employees in
clerical positions did not perform library assistant work.
Based on the above summary of testimonial and documentary evidence, I would
conclude that there is sufficient evidence to determine that there is a commonality between
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LAs and LLAs who are both part of the proposed LSS classification. I would therefore affirm
the portion of the ALJ's proposed decision regarding CSU's unit modification petition (Case
No. LA-UM-724-H), to create a new LSS classification, and to eliminate the LA I, II, III and
IV classifications from Unit 7, and the LLA II, III and IV classification from Unit 4. 	There is
also sufficient evidence to determine whether the ALJ in the proposed decision properly denied
the joint petition of CSU and CSEA to place the new LSS classification in Unit 7 by
concluding that the petitioners had failed to meet their burden of proof. I respectfully submit
that the majority should consider the entire record in this case and issue a decision on the
merits. 	I therefore dissent from the majority's decision to remand this matter for further
processing of the parties' petitions, and another hearing before an ALJ.
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