Regents of the University of California * * * CLARIFIED by Regents of the University of California (2025) PERB Order No. Ad-525-H * * * (PERB 2422H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
UNIVERSITY COUNCIL-AMERICAN
FEDERATION OF TEACHERS,
Exclusive Representative.
Case No. SF-UM-730-H
PERB Decision No. 2422-H
May 7, 2015
Appearances: 	Otis J. Crockett, Labor Relations Advocate, for Regents of the University
of California; Leonard Carder by Andrew J. Ziaja, Attorney, for University Council-American
Federation of Teachers.
Before Winslow, Banks and Gregersen, Members.
DECISION
BANKS, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions by the University Council-American Federation of Teachers
(UC-AFT) to a proposed decision (attached) by a PERB Hearing Officer. The proposed
decision denied UC-AFT's petition to modify Unit 18, the Non-Academic Senate Instructional
Unit at the University of California (University), of which UC-AFT is the exclusive
representative, to include the professor of practice and visiting professor of practice job titles,
which were established in 2012 at the University's San Diego campus (UCSD).
The Board has reviewed the entire record in this matter, including the pleadings, the
hearing transcript and the exhibits thereto, UC-AFT's exceptions, the University's responses,
and the parties' supporting and supplemental briefs. Except where noted below, we find the
Hearing Officer's factual findings are adequately supported by the record and we adopt them
* * * CLARIFIED by Regents of the University of California (2025) PERB Order No. Ad-525-H * * *

as the findings of the Board itself: as modified. Except where noted below, the proposed
decision is well-reasoned and in accordance with applicable law and we therefore adopt it as
the decision of the Board itself, subject to the following discussion of UC-AFT' s exceptions:
PROCEDURAL BACKGROUND1
Following a two-day formal hearing, and the submission of post-hearing briefs, the
Hearing Officer issued his proposed decision on October 6, 2014. The proposed decision
concluded that, pursuant to the Higher Education Employer-Employee Relations Act
(HEERA),2 PERB regulations,3 and PERB decisional law, UC-AFT had not demonstrated that
the three professor of practice positions at UCSD currently held by Leonard Sroka (Sroka),
~ancy Binkin (Bin.kin) and Nathan Fletcher (Fletcher) share a sufficient community of interest
with the University's Non-Academic Senate instructional employees to warrant their inclusion
in Unit 18. Although the Hearing Officer considered the criteria set forth in HEERA
section 3579, subdivision (a), including shared goals, training, working conditions, interaction
with other employees, and so forth, he focused primarily on differences in the assigned and/or
actual duties performed by Srnka, Binkin and Fletcher versus the duties encorn.passed by
Unit 18. With respect to the positions held by Sroka and Binkin, because the _evidence was
undisputed that they had performed no teaching duties whatsoever during their first year of
employment, the Hearing Officer concluded that their duties were inconsistent with the
1 A more detailed factual and procedural history is set forth in the proposed decision.
We identify the central issues and summarize the proposed decision's findings and conclusions
here simply to J)rovide context for our discussion ofUC-AFT's exceptions.
2 HEERA is codified at Government Code section 3560 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code. 	·
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

primarily instructional duties traditionally performeg. by Unit 18 members. (See Unit
Determination for Professional Non-Academic Senate Instructional and Research Employees
of the University of California (1982) PERB Decision No. 270-H (Unit Determination for
Professional Non-Academic Senate Instructional and Research Employees), pp. 9-10.)
By contrast, the evidence was undisputed that Fletcher was engaged primarily in
instructional duties, as he had spent most of his first year designing and preparing course
offerings that were not part of the routine curriculum in the UCSD Political Science
Department. However, based on the testimony of Jeffrey Elman (Elman), UCSD's Dean of the
School of Social Sciences,4 the University's offer letter to Fletcher, and UCSD's Policy and
Procedure Manual (PPM), the Hearing Officer found that, in addition to his teaching duties,
Fletcher was also assigned to0 and/or actually performed "research" duties consisting of
meeting with faculty members in the Political Science Department on a weekly basis to discuss
the formation of a future research institute focused on issues of politics and governance in
California.
4 The propos,ed decision incorrectly identifies Elman as "Ellman," and his title as Dean
of Social Services. We disregard these errors as non-prejudicial, as Elman's name and title are
not in dispute and the correction of these errors will not affect the outcome in this matter.
Similarly; the proposed decision found, at page 11, that "UCSD has several fieldwork
programs on its campus ... ," However, it appears that this finding pertains to the
University's Santa Cruz campus, as no evidence was presented regarding fieldwork programs
at UCSD, and the proposed decision next discusses the duties performed by Michael Rotkin,
who has never worked at UCSD. We therefore do not adopt fue proposed decision's finding
with regard to :fieldwork programs at UCSD. However, to the extent this finding was in error,
we disregard it as non-prejudicial.
3

The Hearing Officer also concluded that, because the visiting professor of practice
series remains vacant, there was insufficient factual basis to find a community ofinterest with
Unit 18 employees. 5
UC-AFT has asserted 21 exceptions to the proposed decision and filed a supporting
brief, in which it challenges several of the H~aring Officer's factu.al findings and legal
conclusions. The University has submitted responses to UC-AFT's exceptions and filed its
own supporting brief in which it urges the Board to adopt the proposed decision.
Following publication of Regents of the University of California (2014) PERB Decision
No. 2398-H (Regents), a separate unfair practice decision involving the same parties, the Board
granted a motion by UC-AFT to reopen filings in the present matter to pennit supplemental
briefing on any common or related issues addressed by the Board's decision regarding the
University's employment of adjunct faculty at the University's Los Angeles campus (UCLA).6
UC-AFT submitted a supplemental brief in which it argued, among other things, that the
Board's interpretation of the so-called "Switkes Letter," a negotiated side letter to successive
memoranda of understanding (MOU) between the University and UC-AFT, determined the
resolution of issues in the present dispute. The University also filed a suppleniental brief in
5 UC-AFT has not asserted any errors of law, fact or procedure in the proposed decision
that are specific to the visiting professor of practice title. To. the extent UC-AFT excepts to the
Hearing Officer's disposition of any issues common to the professor of practice and visiting
professor of practice titles, those issues are addressed in the discussion below. Moreover, we
find no error in the Hearing Officer's denial of UC-AFT! s petition with respect to the vacant
visiting professor of practice title. Because unit placement determinations are based largely on
the actual duties assigned and perfo11ned, PERB has generally refused to determine the
appropriate unit for a vacant classification. (Mendocino Community College District (1981)
PERB Decision No. 144a, pp. 1-2.)
6 Regents concerned the University's misclassification of part-time instrnctors as
adjunct professors instead of lecturers at the University's Los Angeles campus and the alleged
repudiation of a side letter agreement on this subject.
4

which it argued that the Board's decision concerning the employment of adjunct faculty at the
UCLA campus presented different factual and legal issues and was therefore ofno significance
to the present dispute.
.
DISCUSSION
Whether the Hearing Officer Followed the Correct Legal Standard for Unit Determinations
In Exception No. 18, UC-AFT argues that the Hearing Officer failed to fully take into
account all of the unit determination factors required by HEERA, because he focused primarily
on the community of interest factors,-while-relegating other criteria, including the impact on the
current classification system on the meet and confer relationship, to secondary status under the
heading "Other Criteria." We disagree.
HEERA section 3579, subdivision (a), requires the Board to consider a number of factors
when making unit determinations, including: (I) the internal and occupational community of
interest among the employees; (2) the effect that the projected unit will have on the meet and
confer relationships, (3) the effect of the proposed unit on efficient operations of the employer
and the compatibility of the unit with the responsibility of the higher education employer and its
employees to serve students and the public; (4) the number of employees and classifications in a
proposed unit, and its effect on the operations of the employer, on the objectives of providing the
employees the right to effective representation, and on the meet and confer relationship; and
(5) the impact on the meet and confer relationship created by fragmentation of employee groups
or any proliferation of units among the employees of the employer.
Although the statutory language mandates consideration of all of the statutorily~
enumerated criteria when making unit determinations, a Board agent retains some flexibility to
weigh and balance the various factors to achieve the objectives of the stah1te. Some criteria may
5

receive different weight and consideration in different factual settings in order to further the
purposes of the statute. (PERB Reg. 32781; Unit Determination for Technical Employees of the
University of California (1982) PERB Decision No. 241~H (Unit Determination/or Technical
Employees), p. 6.)7 No 011-e criterion in the community of interest analysis is detenninative.
The point in comparing these factors "is to reveal the interests of employees and [to] ascertain
whether they share substantial mutual interests in matters subject to meeting and negotiating."
(Center Unified School District (2014) PERB Decision No. 2379, p. 2, citing Monterey
Peninsula Community College District (1978) PERB Decision No. 76.)
In the present matter, the Hearing Officer focused primarily on the community of interest
factors, including the job requirements and actual work performed by Fletcher or other
professors of practice, to determine whether their positions share a community of interest with
employees in Unit 18. In accordance with Board precedent, other relevant factors were
considered but grouped under the catch-all heading "Other Criteria." (Regents of the University
of California (2010) PERB Decision No. 2107-H, pp. 26-29.) Regardless of how the other
relevant statutory criteria were organized and presented in the proposed decision, they were
considered and we therefore reject this exception.
Whether the Hearing Officer Improperly Refused to Consider Evidence of Animus.
Related to the above exception is Exception No. 19, in which UC-AFT argues that the
Hearing Officer improperly refused to consider email correspondence between Elman and UCSD
1 Additionally, not all of the statutorily-enumerated criteria are applicable to every case.
Some of the criteria are obviously inapplicable to the present cases, such as 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; the presumption in favor of statewwide units
including all employees in the same occupational title or group; or the appropriateness of units
including skilled crafts employees, members of the academic senate or peace officers at the
University.
6

Assistant Vice Chancellor for Academic Personnel Kristina Le:trser;i. (Larsen) concerning the
establishment of the professor ofpractic~ titles and the desire of these officials to avoid
"trigger[ing] a complaint to PERB from the AFT on the grounds that the university is using the
[professor of practice] title to avoid hiring in a category that is covered by collective bargaining."
In one email message, Larsen observed that, ''in order to assure the long term success of this
series it is going to require a great deal of self-discipline and strategy (like not appointing anyone
in the series who has ever been a Unit 18 lecturer)." In another message, Elman wrote, "The
person should not have already been hired as a Lecturer when they are proposed for [the
professor of practice position]."
The Hearing Officer refused to consider these emails, reasoning that unfair practice
allegations may not be resolved in representation proceedings. UC"AFT contends that these
emails, while certainly probative of unlawful motive, were not offered in support of unfair
practice allegations, but because of their relevance to the unit determination inquiry, which
requires consideration of how a unit determination will affect the meet and confer process. Thus,
while no separate unfair practice charge was filed, UC-AFT argues that the views expressed in
these emails demonstrate the likely harm on the meet and confer relationship if UCSD is
permitted to use the professor of practice classification to undermine the integrity of Unit 18.
We find it unnecessary to decide this issue. Assuming without deciding that the emails
should have been considered in a unit determination proceeding for the intended or likely effect
of the professor of practice positions on the meet and confer relationship, their consideration
would still not alter the result in this case. The evidence was not necessarily proof of anti-union
animus or an intent to undermine the University's meet and confer obligations. Rather, it
7

was equally susceptible to an inference that the University simply wished to avoid litigation wifh
UC-AFT.
The Significance of the Switkes Letter to the Present Unit Determination Decision
Several ofUC-AFT's exceptions and its supporting and supple:t,nental briefs concern
the Switkes Letter and the significance of the Board's interpretation of that document in
separate unfair practice proceedings for the present controversy. Specifically, UC-AFT argues
that, in Regents, supra, PERB Decision No. 2398-H, the Board held that the Switkes Letter
requires the University to treat lecturers as the default classification for Non-Senate faculty
who primarily teach. According to UC-AFT, PERB determined in Regents that the University
may only exclude instructors from Unit 18 and classify them as adjunct faculty if they are
required to perform the kind of academic, peer-reviewed research, or its equivalent, thatis
required of Academic Senate faculty members. Moreover, by recognizing the lecturer
classification as the default title, the Regents decision requires the University to prove that an
adjunct professor appointment, rather than a Unit 18 lecturer, is the appropriate classification
for a given appointee. Under UC-AFT's interpretation, unless the University can show that an
instructor actually performs academic, peer-reviewed research or its equivalent, the instructor
must be classified as a Unit 18 lecturer.
This interpretation of the Boar~' s decision in Regents, supra, PERB Decision
No. 2398-H underlies several of UC-AFT's exceptions. For example, UC-AFT's Exception
No. 3 excepts to the Hearing Officer's finding that the definition of the term "research" was not
memorialized in a writing between the parties which would restrict the meaning of that term to
published peer-reviewed academic research.
8

We find partial merit in this exception. While the Switk.es Letter itself does not include a
definition of the term "research," both its references to various University policies and the
parties' bargaining history demonstrate that, as applied to adjunct faculty, the term "research"
was intended to encompass the kind of academic, "cutting-edge" and peer-reviewed research
required of Academic Senate faculty members. (See Regents, supra, PERB Decision
No. 2398-H.) However, we do not regard the Switkes Letter or the meaning ofthe term
"research" it incorporates as controlling for whether the professor of practice classification
belongs in Unit 18. Unlike Regents, the present dispute does not involve the alleged
misclassification of Unit 18 members as adjunct professors, as prohibited by the Switkes Letter,
but whether new classifications, the professor of practice and visiting professor of practice titles,
appropriately belong in Unit 18 based on the statutory "community of interest" criteria.
In Regents, supra, PERB Deci&ion No. 2398-H, the Board determined that, "lecturer is
the default classification for instructors who perform only teaching duties." (Id. at p. 30,
emphasis added.) In that case, the "research" and "service" contributions, however defined,
were not required at all as part of the incumbent' s work for the University; rather they were
already part and parcel of the instructors' pre-hire resume or, to the extent they continued to be
performed during the incumbent's University employment, they were not specifically required
by the University and, for the most part, consisted of "research" or Hservice" duties ,that the 	•
individual would have performed anyway as part of his or her separate practice or employment
outside the University.
UCSD's 2013 "Professor of Practice hnplementation Guidelines') admit that the professor
of practice series ''has been established within the framework of the Adjunct Professor seriest
and that, "appointments are made using the Adjunct Professor title code." ·However, the
9
...........................____________________________________

University acknowledged at the hearing that the professor of practice and visiting professor of
practice titles do not belong in the adjunct series. UCSD's Director of Academic Policy
Development Kelly Lindlar (Lindlar) explained that the positions needed to be coded according
to some existing title within the University's system to ensure that the incwnbents were paid,
but that, once separate, system-wide pay codes had been developed for the professor of
practice titles, they would no longer even be coded as adjunct faculty for strictly payroll
purposes. PERB may interpret University policies, including the provisions of collective
bargaining agreements and side letters, where necessary to decide an unfair practice issue.
(City ofRiverside (2009) PERB Decision No. 2027-M, p. 10; Fresno Unified School Dist. v.
National Education Assn. (1981) 125 Cal.App.3d. 259, 271-274; State of California
(Departments of Veterans Affairs & Personnel Administration) (2008) PBRB Decision
No. 1997-S, pp. 14-16.)8 However, unlike unfair practice cases, in unit determination
proceedings, there is no adjudication ofan alleged violation ofHEERA against a respondent.
Because unit determination proceedings lack the kind of notice or due process protections
necessary for a finding ofliability against a party, they are ill-suited to determining the
lawfulness of an assigned duty or resolve an unfair practice allegation. (Antioch Unified School
District (1984) PERB Decision No. 415, pp. 5-6; see also Cit:y & County oj San Francisco
(2014) PERB Order No. Ad-415-M, p. 14.)
8 Although the above decision~ interpreted the Meyers-Milias-Brown Act (§ 3 500
et seq.), the Educational Employment Relations Act(§ 3540 et seq.), and the Ralph C. Dills
Act(§ 3512 ct seq.), rather than HEERA, where California's public-sector labor relations
statutes are similar or contain analogous provisions, agency and court interpretations under one
statute are instructive under others.· (Redwoods Community College Dist. v. Public
Employment Relations Bd. (1984) 159 Cal.App.3d 617, 623-624.)
10

Whether hnplemeritation of the Professor of Practice Positions Violated the Switkes Letter
In Exception Nos. 10, 11 and 13, UC"AFT also argues that the professor of practice
series, as described and implemented by UCSD, violates the terms of the Switkes Letter, and
that the Hearing Officer improperly failed to draw this conclusion from the record evidence
and the Hearing Officer's own factual findings. Exception No. 10 notes that the Hearing
Officer found that ''most of [Fletcher's] efforts at UCSD were, to a large extent, spent lecturing
political science courses and meeting with students during office hours," and that such
"instructional" duties are typically performed by Unit 18 members. Exception No. 11 similarly
excepts to the Hearing Officer's failure to find a violation of the Switkes Letter, since Fletcher
was coded as an adjunct professor but was not required to perform research of th~ kind expected
from ladder-rank faculty. In Exception No. 13, UC-AFTargues that, if the research requirement
for professors of practice is not the same as that assigned to adjunct and senate professors, then
the Switkes Letter is not satisfied and the current classification system is eroded.
As explained above, representation proceedings are ill--suited for determining issues of
liability. However, even assuming these issues were properly before the Hearing Officer in a
unit modification proceeding, they would not alter the result in this case for reasons that were
also explained above. The Switkes Letter was designed to police the boundaries between
lecturers and adjuncts, not between lecturers and newly-created positions, which, as the
Hearing Officer correctly determined, should be determined under a community of interest
standard, as set forth in HEERA section 3579, subdivision (a). We therefore reject UC-AFT's
exceptions concerning alleged violations of the Switkes Letter.
11

Exceptions Concerning the Scope and Nature of Duties Performed by Unit 18 Members.
UC-AFT also excepts to the Hearing Officer's findings regarding the duties assigned to
and performed by Unit 18 members. For example in Exception No. 1, UC-AFT contests the
Hearing Officer's finding that Unit 18 members have heavy teaching loads and mainly provide
instruction in a classroom setting. UC-AFT contends that the Hearing Officer erroneously
assumed that Unit 18 members are synonymous with lecturers, when, in fact, the bargaining
unit encompasses employees performing a broader range of duties, including fieldwork
coordinators, consultants and supervisors, who supervise student fieldwork outside the
classroom, and parHime lecturers who do not carry a full-time teaching load.
fu Exception No. 17, UC-AFT excepts to the Hearing Officer's conclusion that,
generally, Unit 18 employees have heavier teaching loads and are expected to teach three ·
quarters per year. UC-AFT argues that the Hearing Ofiicer failed to identify which job title
within Unit 18 was being used as the basis for this comparison and failed to recognize that
Unit 18 members perform a range of duties that does include teaching but not uniformly enough
to draw the "gross overgeneralization" reached by the Hearing Officer. Exception No. 8
similarly asserts that the Hearing Ofiicer ignored the fact that Unit 18 members perform
"nontraditional" research as a core component of their duties which, according to UC-AFT, are
arguably comparable to the relaxed "research" duties expe·cted of Pletcher.
Each of these contentions is beside the point. Unit 18 was established as an
instructional unit consisting of lecturers and related teaching classifications. (Unit
Determination for Professional Non-Academic Senate Instrudtional and Research Employees 1
supra, PERB Decision No. 270-H, p. 17 .) fu concluding that the University may not use the
adjunct title for employees who are hired to teach but who are not required to perform research
12

or service duties, the Board recently affirmed the instructional nature of Unit 18. (Regents,
supra, PERB Decision No. 2398-H.) The role of Unit 18 members who supervise student
fieldwork is also instructional. Although this duty bears a superficial resemblance to
Fletcher's weekly brainstorming sessions with faculty members regarding the scope and
purpose of the future Institute for California Studies, as explained at the hearing, the University
does not regard student coursework, including fieldwork, to be a part of its research mission.
By contrast, Fletcher was required to perform ''research" by assisting ladder~rank faculty
in identifying and narrowing the scope and purpose of the future research Institute. While some
Unit 18 members had established internships or practicum courseworkfor students, there was no
evidence in the record to suggest that they are hired to define or implement the University's
research mission and the fact that Fletcher's "research" was not the traditional, academic, peer-
reviewed research required of adjunct or ladder-rank faculty is not determinative of whether his
position shares a community of interest with Unit 18 members.
The distinction between instructional and research positions held by non-Academic
Senate personnel goes back to PERB 's original unit determinations under HEERA. (Unit
Determination for Professional Non-Academic Senate Instructional and Research Employees,
supra, PERB Decision No. 270-H.) Unit 18 members are not required as part of their
employment to conduct "research," even in the relaxed sense applicable to Fletcher and other
professors of practice. While the record demonstrates that Unit 18 members may perform
nontraditional research as a core component of their duties and are effectively rewarded for
authoring or contributing to the publication of academic, peer-reviewed research, particularly
during their six-year "eye of the needle" review, the recqrd was insufficient to demonstrate that
they are required to perform such duties. While PERB may dete1mine the boundaries of
13

appropriate bargaining units based on the duties assigned to and actually performed by higher
education employees (HEERA, § 3579, subd. (a); State of California, Department of Personnel
Administration (1991) PERB Decision No. 871-S (DPA), p. 8), we are without authority to
dictate to the University whether to create new classifications that may share characteristics of
both the professor of practice classification and Unit 18, or in the-words of the University,
classifications that are "neither fish nor fowl."' PERB's task in unit determination proceedings
regarding a newly-established classification is to determine if the actual duties performed by
the incumbents warrant inclusion in the petitioned""for unit. (HEERA, § 3561, subd. (b).9)
In this regard, UC-AFT's Exception No. 16 e~cepts to the Hearing Officer's conclusion
that, "[a]lthough there is scant evidence that [Fletcher] actually performed 'research' work
expected of him, his research contributions to the Institute are reasonably comprehended within
both his appointment letter and reappointment and evaluation criterion [sic]." Where the record
includes no evidence of duties actually performed because the position is newly established,
9 HEERA section 3561, subdivision (b), provides:
The Legislature recognizes that joint decisionmaking and
consultation between administration and faculty or academic
employees is the long-accepted manner of governing institutions
of higher learning and is essential to the performance of the
educational missions ofthese institutions, and declares that it is
the purpose of this chapter to both preserve and encourage that
process. Nothing contained in this chapter shall be construed to
restrict, limit, or prohibit the full exercise of the functions of the
faculty in any shared governance mechanisms or practices,
including the Academic Senate of the University of California
and the divisions thereof, the Academic Senates of the California
State University, and other faculty councils, with respect to
policies on academic and professional matters affecting the
California State University, the University of California, or·
Hastings College of the Law. The principle of peer review of
appointment, promotion, retention, and tenure for academic
employees shall be preserved.
14

PERB may rely more heavily on evidence from written job descriptions or similar employer-
prepared documents purporting to demonstrate the expected duties of the position. (Calexico
Unifir;,d School District (1990) PERB Decision No. 800, pp. 4-6.) We therefore find no error in
the Hearing Officer's finding that Fletcher was ~signed and performed at least some form of
"research.''
UC-AFT's Exception No. 6 similarly challenges the relevance of the Hearing Officer's
finding that, while Unit 18 members teach courses both at the undergraduate and graduate levels,
professors of practice "may teach undergraduate core courses," but are not mandated to do so.
UC-AFT argues that neither Unit 18 members, nor professors of practice (nor, for that matter,
ladder-rank faculty) are required to teach undergraduates and that it is therefore not a valid basis
for distinction between professors of practice and Unit 18 members.
Again, we find partial merit in this exception. UCSD PPM section 230-20, which
includes the criteria for appointment to the professor of practice series, states that, "[n]ormally,
the candidate [for professor of practice or visiting
. professor of practice] will teach at least at the
upper-division level and generally at the graduate level," but also notes that the teaching
requirements for the position "may be satisfied by meaningful engagement in and significant
contributions to the graduate or undergraduate instructional program, including efforts in
the research and professional training of students." Similarly, although UCSD PPM
section 230-28 acknowledges that "the Professor of Practice series teach primarily at the
graduate level," and that "it is not expected that Professors of Practice teach core courses at the
undergraduate level,'' the document also states that "[i]nstruction at the undergraduate level is
permissible when an appointee's individual expertise and professional skills warrant such a
teaching assignment."
15

We therefore do not adopt the proposed decision to the extent it relies on teaching
undergraduate versus graduate courses as a distinguishing feature between Unit 18 members and
employees in the professor of practice title. However, we find it unnecessary to decide whether
Fletcher's teaching assignments were or were not pennissible under the exception for
undergraduate teaching stated in the PPM, because, in addition to his teaching duties, he is also
expected, as part of his required duties, to contribute to the "research" and/or creative mission of
the University, albeit not necessarily in the form of academic, peer-reviewed research.
We likewise agree with UC-AFr's Exception No. 9, which challenges as unsupported
and ''wholly irrelevant" the Hearing Officer's conclusion that Unit 18 employees do not have·
similar levels of education as ladder-rank faculty and adjunct professors. We agree that this
fmding is not supported by the record and is at odds with the Hearing Officer's own factual
findings, as the record demonstrated that Unit 18 includes members with a range of educational
~evels, some of which are comparable to Fletcher's. However, because of the relatively minor
role played by educational levels in the proposed decision's overall community of interest
analysis, we do not regard this error as grounds for reversing the ultimate conclusion that Unit 18
members do not share a sufficient community of interest with the current Professors of Practice
to warrant the latter's inclusion in Unit 18.
In Exception No. 4, UC-AFT similarly argues that nothing in the record supports the
Hearing Officer's conclusion that "placing a distinguished practitioner into a Unit 18
classification was . . . not a viable alternative, since the MOU does not mandate peer-reviewed
research as a component for a continuing appointment." We also find partial merit to this
exception. Whether an individual is regarded as "distinguished" in his or her field has no
bearing on what duties may be assigned and perfonned;which is the relevant inquiry when
16

.
considering whether employees have sufficiently similar job duties to share a community of
interest. (Regents, supra, PERB Decision No. 2398-H, p. 30; DPA, supra, PERB Oecision
No. 871-S, p. 8; see also Hemet Unified School District (1990) PERB Decision No. 820.)
We also agree with UC-AFT that there was nothing in the record to suggest that a
"distinguished practitioner" could only be appointed if his or her job duties included peer-
reviewed research. However, even assuming, as UC-AFT argues, that the Hearing Officer's
analysis conflated these differently relevant criteria, it would not alter the result in this case,
which is based on the conclusion that UC-AFT failed to satisfy its burden as the petitioner in unit
modification proceedings that the newly-established classifications professor of practice and
visiting professor of practice share a sufficient community of interest with Non-Academic Senate
instructional employees to be included in Unit 18. (Unit Determination for Technical
Employees, supra, PERB Decision No. 241-H, p. 20.) Central to that determination was the
factual finding that professors of practice are expected to perform some form of"research" and
"service" duties, whereas Unit 18 members are not.
Although not discussed in the proposed decision, the record contains a similar
distinction with respect to Fletcher's obligation to complete some form of University and public
service that go beyond merely holding office hours. According to UCSD PPM 230-28, to
continue as a professor of practice beyond his three-year appointment and to be eligible for a pay
increase, Fletcher must be evaluated based not only on his teaching quality and effectiveness, but
also on his contributions to research and/or the creative mission of the University, and on his
service activities related to his professional expertise and achievements .
In addition to holding office hours, Elman testified that Fletcher "gives advice" to
graduate students and "discusses their research projects." More importantly, according to
17

Elman, Fletcher is eligible to serve on graduate students' dissertation committees. Although
there was no evidence that Fletcher had served on any such committees, Elman testified that,
unlike Fletcher, advising graduate students on their dissertation research is "not what [Unit 18
members are] hired to do.''10
Although some Unit 18 members supervise student fieldwork, as noted already, the
University does not consider student coursework or internships to be part of its academic
research mission. While admittedly instruction of graduate students
.begins to blur the line
between teaching and research, because of the crucial role graduate students may play in
designing and carrying out original research for their doctoral dissertations, the record includes
no evidence that Unit 18members have served on dissertation committees or similar groups
overseeing the original research of graduate students.
Whether the Hearing Officer hnproperly Considered Issues Not Raised by the Petition
UC-AFT also excepts to the Hearing Officer's conclusion that the professor of practice
titles may be more appropriately placed in the University's Organizational Research Units, an
option that was not sought by UC-AFT's petition nor raised or briefed by the parties in these
proceedings. We are not persuaded. PERB unit placement determinations ate not confined to
the particular unit configurations petitioned for by any party. (Sweetwater Union High School
10 Although the record includes no evidence regarding the criteria that will be used to
evaluate Fletcher's research and service contributions, UC-AFT may petition PERB again for
inclusion of Fletcher's position or any other professor of practice position, at such time as it has
evidence that no such duties are in fact assigned or performed by employees in those
classifications. (Regents of the UniversUy of California (1993) PERB Decision No. 993-H,
adopting administrative law judge's proposed dee. at pp. 8-9.)
18

District (1976) EERB11 Decision No. 4.) Moreover, the proposed decision does not purport to
place the professor of practice titles in an Organized Research Unit; rather, in finding an
insufficient community of interest between Unit 18 members and the current professors of
practice, the Hearing Officer simply observed that the professor of practice research requirement
may make their inclusion in a research unit more appropriate than in either Unit 18 or an adjunct
title. We therefore reject this exception as meritlcss.
UC-AFT's Request for Oral Argument
UC-AFT has also requested oral argument before the Board itself to explain or clarify
the record evidence relating to the technical aspects of highly specialized job classifications at
issue in this case, to facilitate full consideration of the Board's original unit determination
decision for Unit 18, as it has been implemented in the decades since at the University, and to
allow for a fuller consideration of the multi-factor analysis for HEERA unit determination
issues than would otherwise be possible. UC·AFT contends that oral argument is appropriate
because the integrity of the Board's unit determination regarding Unit 18 is at stake. The
University opposes this request.
The Board has historically denied requests for oral argument when the record is
adequate, the parties have had an opportunity to fully brief the matter, and'the issues are
sufficiently clear to make oral argument unnecessary. (Los Angeles Community College
District (2009) PERB Decision No. 2059; Monterey County Office of Education (1991) PERB
Decision No. 913.) Over the course of two days of hearing, the parties had the opportunity to
examine and cross-examine each witness and to present more than 20 exhibits, which were
11 Prior to 1978, PERB was known as the Educational Employment Relations Board or
EERB.
19

received into the record. They also filed post-hearing briefs with the Hearing Officer in which
they argued various points and authorities, followed by the extensive exceptions, responses to
exceptions, briefing and supplemental briefing submitted to the Board itself. Although the.
Board considers the record less than satisfactory in several respects, particularly with regard to
the absence of any testimony by employees in the professor of practice classification, their
immediate supervisors or any other witnesses with first-hand knowledge of the duties assigned
to and actually performed by the employees, oral argument before the Board is not well-suited
to supplementing the factual record with sworn testimony or cross-examination of witnesses.
In any event, because the issues are sufficiently clear to make additional argument
unnecessary, we deny UC-AFT's request for oral argument.
ORDER
For the foregoing reasons, and based on the entire record in this case, the University
Council-American Federation of Teacher's unit modification petition to include the professor
of practice and visiting professor of practice classifications in Unit 18 is hereby DENIED.
Members Winslow and Gregersen joined in this decision.
20

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
UNIVERSITY COUNCIL-AMERICAN
FEDERATION OF TEACHERS,
Exclusive Re resentative.
REPRESENTATION
CASE NO. SF-UM-730-H
PROPOSED DECISION
(10/06/2014)
Appearances: Regents of the University of California by Otis Crockett, Labor Relations
Advocate at University of California, San Diego; Leonard Carter by Andrew Ziaja, Attorney,
for University Council-AFT.
Before Y aron Partovi, Hearing Officer.
PROCEDURAL HISTORY
On or about August 2012, the University of California, SanDiego (University or
UCSD) established a Professor of Practice classification series that includes the following two
titles 1: Professor of Practice and Visiting Professor of Practice.
On April 23, 2013, University Council-American Federation of Teachers (UC-AFT)
filed with the Public Employment Relations Board (PERB or Board) a unit modification
petition (PERB Case No SF-UM-730-H)-under the Higher Education Employer-Employee
Relations Act (HEERA)2 and pursuant to PERB Regulation 32781(b)(3)3-seeking to add both
1 The University often refers to classification names as "titles."
2 HEERA is codified at Government Code, section 3560 et seq. Unless otherwise
specified, all statutory references are the Government Code.
1.
3 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. 	'

of the Professor of Practice classifications to the Regents of the University of California's
(UC) Bargaining Unit 18 (Non-Senate Instructional). On June 17, 2013, PERB received a
response from the University opposing UC-AFT's petition. The interested parties were unable
to resolve the instant dispute during an October 4, 2013 informal settlement c·onference. On
March 4 and 5, 2014, after disposing of a pre-hearing motion, the undersigned Hearing Officer
conducted an evidentiary hearing regarding the unit modification request.4
FINDINGS OF FACT
Unit 18 (Non-Senate Instructional)
UC-AFT is the "recognized organization" within the meaning of section 3562(p) of
Bargaining Unit 18 (Unit 18). There are approximately 3,000 employees system-wide who
comprise Unit 18. Unit 18 includes the following relevant classifications: Lecturer, Senior
Lecturer, Lecturer Continuing Appointment, Demonstration Teacher, Supervisor of Teacher
Education, Fieldwork Coordinator/Consultant, Field Work Supervisor, Substitute Teacher, and
Teacher.5 UC-AFT and UC are parties to a memorandum of understanding (MOU) that
includes all of the terms and conditions of employment for Unit 18 employees, Unit 18
employees have heavy teaching loads and mainly provide instruction in a classroom setting.
4 At the time of the formal hearing, the University only employed three Professo~s of
Practice: Nathan Fletcher, Leonard Smka, and Nancy Binkin. Neither party called any of the
three Professors of Practice to the witness stand to testify during the hearing. Further, the
Visiting Professor of Practice classification is vacant as no one is employed in that position.
5 Represented faculty/academic employees at UC are split into three separate
bargaining units: Non-Senate Instructional; Non~Senate Academic Research Professional; and
Research Support Professionals. (Unit Determination for Professional Non-Academic Senate
Instructional and Research Employees of the University of California (1982) PERB Decision
No. 270-H.)
2

Academic Senate Faculty (Ladder-Rank Faculty)
The Academic Senate6 consists of non-Unit 18 teaching faculty (hereafter, ladder-rank
faculty) with increasing rank as follows: Assistant Professor, Associate Professor, and
Professor.7 Ladder-rank faculty are generally appointed to three year tenns.8 Ladder-rank
faculty do not have a formal teaching load requiring them to perform teaching and peer-
reviewed research work simultaneously in one quarter, but they are required to conduct such
research work during their three~year appointment period. As such, it is possible that ladder-
rank faculty teach two courses in one quarter, no course the following quarter, and another
course in the third quarter. For the first two quarters of their appointment, Assistant Professors
are not expected to do substantial research work, such as having a published peer-reviewed
work, since they are focusing on teaching and establishing the foundation for a future research
project, such as, applying for a research grant program or conducting archival work at a
library. It is possible that an Assistant Professor's research project materializes into a
published work two years after their initial appointment. Ladder-rank faculty are
unrepresented and not included within any bargaining unit.
Adjunct Professor and the Switkes Letter
Adjunct Professors are not tenure-tracked positions and they are not members of the
Academic Senate. Like ladder-rank faculty, Adjunct Professors have both teaching and
6 The Academic Senate is a body of faculty members that share in governance and are
responsible for the design of curricula and degrees and the student admissions process.
Members of the Academic Senate have voting rights on these policies, which could be local or
system-wide. There is also a voting.process within the departments that allows eligible faculty
members to vote on appointments and internal matters.
7 A candidate that achieves an Associate Professor title or higher is deemed to have
reached "tenure"-a status that confers a selfoenewing contract.
8 The University defines one year as three semester quarters.
3

research obligations. Adjunct Professors are excluded from Unit 18 (Unit Determination for
Professional Non-Academic Senate Instructional and Research Employees of the University of
California, szq1ra, PERB Decision No. 270-H), and remain unrepresented by any employee
organization for purposes of collective bargaining.
In an August 21, 2003 letter from UC's Assistant-Vice President of Academic
Advancement Ellen Switkes to UC-AFT, Switkes affirmed UC's policy definition for Adjunct
Professor appointments that was previously set forth in UC's Academic Personnel Manual
(APM). The "Switkes letter," as it became to be known, was written in response to UC-AFT's
concerns that UC had appointed Adjtmct Professors with full teaching loads, but no research
expectations/assignments. The Switkes letter states in pertinent part, as follows:
A.PM.:... 280-4, Adjunct Professor Series, provides: Titles in this
series may be assigned (1) to individuals who are predominantly
engaged in research or other creative work and who participate in
teaching, or (2) to individuals who contribute primarily to
teaching and have limited responsibility for research or other
creative work, so long as these individuals are professional
practitioners of appropriate distinction. Appointees with titles in
this series also engage in University and public service consistent
with their assignments ....
APM- 220-4, Professor Series, provides: the professional series
is used for appointees who are members of the faculty of an
academic or professional college or school of the University who
have instructional as well as research, University, and public
service responsibilities.
Similar to the expectations placed on the Academic Senate
faculty, Adjunct ... appointees are expected to perform teaching,
research and service that extend beyond class-related advising.
As such, their annual teaching loads should not be the same as
Lecturers in the same department. Adjunct ... appointments
should not be used for those performing Lecturer duties.
During negotiations for a successor agreement, the parties understood that generally the
term "research" refers to published peer-reviewed academic research, although such
4

understanding was never memorialized in writing. Prior to 2003, the University had proposed
that "distinguished" practitioners be appointed to perform Lecturer duties. Although the
parties did not reach an explicit agreement as to what constitutes a "distinguished" practitioner,
the parties entertained the idea of a current or former US Vice-President as a suitable candidate
for such designation. The Switkes letter subsequently became a side-letter agreement to the
parties' MOU.
UC's Creation of the Professor of Practice Classification Series
The University ha~ an interest in hiring "distinguished" practitioners who were
employed in industry or government, but who did not.neatly fit the mold of existing Adjunct
Professor titles, because they lacked "traditional academic backgrounds'' or a published record
of independent research.· UCSD' s Dean of Social Services Jeffrey Ellman testified that
someone with a "traditional academic background" completes high school, then college, then a
PhD program, and then follows an academic track. Some industry practitioners without such a
background could not conform to an Adjunct Professor title, since they are required to have
experience teaching or conducting peer-reviewed research. The University determined that
placing a distinguished practitioner into a Unit 18 classification was also not a viable
alternative, since the MOU does not mandate peer~reviewed research as a component for a
continuing appointment. Mr. Ellman gave the example of a candidate with a PhD in Cognitive .
Science who had published writings in neurobiology, but who is employed in industry (not
acadeJJ?ia) as the Senior Vice-Pre.sident of Engineering at Twitter. According to Mr. Ellman,
this individual is a "weak" candidate for an Adjunct Professor position in either business or
management programs at UC given the candidate's lack of traditional academic background in
such programs. As such, the University decided to create the Professor of Practice
5

classificaJion series to contribute to all three areas: research, service, and instruction, but
without the requisite academic background.
In 2012, the title for the Professor of Practice series was embodied in UCSD's local
policy, Policy and Procedure Manual (PPM) section 230-20 that provided in relevant part:
"Professors of Practice primarily contribute to teaching and/or research programs ...." and
Professors of Practice may also contribute to the less traditional research .... " (Italics added.)
After publishing PPM section 230-20, the University met with UC-AFT to discuss the
language contained therein. UC-AFT was concerned that in addition to service work, those
employed in the Professor of Practice series could focus on either teaching or research ana"that
this would violate the Switkes letter agreement which clarified that new adjunct appointments
must not perform strictly Lecturer duties, namely teaching assignments withont research
functions. The University attempted to resolve this concern by issuing PPM section 230-28 in
September 2013, to state that the Professor of Practice series appointments are based on
numerous criteria including professional competence and activity; teaching; "contributions to
the research and/or creative mission of the University;" and "service contributions" such as
sitting on department committees, serving as advisors to faculty and students, helping students
network, and providing internship andjob opportunities.
The witnesses had varying definitions of what "research" entails. According to UCSD
Academic Policy Development Director Kelly Lindlar, the "research" component for a
Professor of Practice differs from research performed by someone with a traditional academic
background. Mr. Ellman testified that "research" is broadly defined to mean the disco.~ery of
basic knowledge, while other witnesses understood "research" to include published peer-
reviewed research materials. Regardless, UCSD intended that the Professor of Practice
6

classification provide "contributions" to the published peer-review research being produced by
ladder-rank faculty members .. Ms. Lindlar further explained:
So getting back to Professor of Practice, we wouldn't expect
necessarily, someone who's you know, CEO of a company or that
type of person to be publishing independent peer-reviewed
research on their own. However, the campus mission is still to
continue to produce this type of work, and they will contribute to
it in other ways. So, for example, they might serve as an advisor
to faculty and kind of help them to shape what research is needed
and what research projects might even be developed.
University's Appointment of Nathan Fletcher for the Professor of Practice Position .
Nathan Fletcher was hired by UCSD in December 19, 2012 as a Professor of Practice--
a privately funded position9-at 28% time, with an appointment date effective January 1, 2013,
through June 30, 2015. Mr. Fletcher's appointment was to the UCSD's Political Science
Department, a division of the college's Social Science Department. Prior to his hire date, Mr.
Fletcher served in the California State Assembly and is currently in a director-level position at
Qualcomm Incorporated (Qualcomm). Mr. Fletcher's appointment letter states:
[Y]our responsibilities are teaching, contributions to the research
and/or creative mission of the University, and University and
public service. Reappointment is conth1gent upon demonstration
of achievement in each of these areas and your continued
professional achievement and activity.
Mr. Fletcher's position is not tenure-tracked and he was appointed to a three-year term.
Mr. Fletcher's immediate supervisor is the Political Science Department Chair who reports
directly to the Dean of Social Sciences at UCSD, Mr. Ellman. Mr. Ellman interviewed Mr.
Fletcher for the position prior to his appointment. Mr. Ellman testified that the purpose of the
interview was to determine his research interests, abilities, and skills. He further testified that
9 Funding for Mr. Fletcher's position comes from an annual fund for Social Sciences
whose aggregate contributions cannot exceed $25,000. Ladder-rank faculty and Unit 18
members are state-funded positions.
7

because Mr. Fletcher was a "policy wonk" in the subject of political science and was
"potentially a very good resem:cher," he was recruited to participate in developing the Institute
for California Studies (Institute), a research institute created nearly ten years ago at the
campus, but never formally inaugurated by UCSD. Other non-Unit 18 instructors, including
ladder-rank faculty, from UCSD's Social Science Departments were consulted in determining
the specific activity agenda of Mr. Fletcher at the Institute; however, while Mr. Fletcher
participated in meetings with this group through July 1, 2013, no definitive agenda
materialized since the agenda was still in the "formative'' stage. Mr. Ellman testified that Mr:
Fletcher's appointment entailed a "service" component and "research" component. According
to Mr. Ellman, the "research" aspect was, in collaboration with ladder-rank faculty, discussing
the "pros and cons" of various subject matter issues and strategies for investigating such issues
relevant to the Social Science Department. Mr. Ellman further testified that Mr. Fletcher was
expected to teach three quarters per academic year, and that there may be a quarter where Mr.
Fletcher is needed to conduct research and service without a teaching load.
At the time of his hire, Mr. Fletcher spent most of his effort on teaching. Mr. Fletcher
also held office hours similar to all other UCSD instructors. During his first quarter at UCSD,
Mr. Fletcher "co-taught" a Comparative American Politics cottrse with a Professor (i.e., a
ladder-rank faculty member) who also served as a mentor and advisor to Mr. Fletcher given his
then-recent appointment from outside academia. During the following Spring quarter in 2013,
Mr. Fletcher taught a course on elections. According to Mr. Ellman, these were new or
significantly redesigned courses that are not offered as core-level courses10 and the regular
10 Core-courses are basic undergraduate level courses that are required for graduation.
These courses have large student enrollments, are offered repeatedly throughout the year, and
are taught by either ladder-rank faculty or Unit 18 Lecturers.
8

ladder-rank professors did not have the expertise to teach such courses. Mr. Fletcher also
interacted with graduate-level students by providing advice and discussing their assigned
research projects. Mr. Fletcher also devoted some time on a weekly basis for meeting with
faculty members of the Institute group.
After the Spring 2013 quarter, Mr. Fletcher took a leave of absence, July 1 through
December 31, 2013, to run for the City of San Diego's mayoral office. Mr. Fletcher returned
to service on January 1, 2014, at which time he resumed developing the Institute's goals and
objectives and taught a course about the electoral process.
University's Appointment of Leonard Srnka and Nancy Bin.kin
On June 14, 2013, UCSD appointed Leonard Smka to an unpaid Professor of Practice11
position at the campus's Scripps Institution of Oceanography l:)epartment. In his appointment
letter, Mr. Srnka was advised that his responsibilities include "teaching, contributions to the
research and/or creative mission of the University, and University and public service." Mr.
Srnka did not have·a teaching assignment during the 2013-2014 academic year. Mr. Srnka has
a PhD in Physics and has studied and researched mainly geophysics. Mr. Smka is employed
by ExxonMobil Upstream Research Company (Exxon) as the Chief Research Geoscientist.
Mr. Srnka also has approximately 28 published papers embodied in various science journals
including "Nature/' "Geophysical Journal of the Royal Astronomical Society," and "Physics of
the Earth and Planetary Interiors."
·
On August 2, 2013, UCSD also appointed Nancy Binkin to a paid, three-year, Professor
of Practice position at the Department of Family and Preventive Medicine, School of
11 According to Ms. Lindlar, the Umversity also appoints unpaid Adjunct Professors,
who contribute the scholarly mission of the University by, for example: working in University
labs; accessing the University's libraries; and collaborating with University researchers.
9

Medicine. She is not teaching a class during the 2013~2014 academic year. Ms. Bink.in
currently serves as a Lecturer at California State University, San Diego, School of Public
Health. Ms. Binkin has a Master's degree in Public Health {MPH) and a Medical Doctorate
(MD); has worked as the Chief of Policy and Evidence in the Health Section of UNICEF; and
has numerous publications and scholarly articles, including some embodied in the "Journal of
the American Medical Association" and "Italian National Epidemiologic Bulletin.''
Unit 18 Lecturers' Qualifications, Duties, and Responsibilities
Unit 18 Lecturers primarily teach courses both at the undergraduate and graduate
levels. However, ladder-rank faculty may also teach those same courses. PPM 230-28
specifies that Professors of Practice may teach undergraduat.e core courses; however, this type
of teaching assignment is not mandated for a Professor of Practice appointee.
The only Lecturer who testified at the hearing was Michael Rotkin, who was first hired
in 1974 at University of California, Santa Cruz (UCSC) with an "ABD" (or All But
Dissertation), meaning that he obtained a bachelor's degree in English Literature and enrolled
in a PhD program in History of Consciousness. In 1974, a faculty member at the UCSC
Community Studies department12 asked Mr. Rotkin to accept a Lecturer position to teach at
UCSC's Community Studies Program. At the time of his appointment, Mr. Rotkin was
assigned a full-time load requiring him to teach eight courses during the academic year. He
did not always teach eight courses throughout the year., because he would occasionally receive
"equivalencies" to allow him to conduct non-classroom work including:· independent studies
with assigned students, collaborating with Academic Senate faculty on projects; and serving on
dep.artment committees. However, he never taught fewer than six courses and often had six
12 The Community Studies depa1tment is part of the UCSC Social Sciences division,
which is one of five divisions at the campus.
10

courses and two equivalencies. Mr. Rotkin was also granted an equivalency to work on the
development of a new graduate program for his department relating to teaching graduate
students how to create documentaries. In the mid-1980s, Mr. Rotkin was asked to teach a
course on electoral politics for two quarters and a class on freeway planning.
UC~AFT presented evidence showing that there are UC Lecturers who do not have a
"traditional academic background," but who nonetheless, had served in high~lev:eI government
capacities. For example, at UCSC, there are a number of politicians who are Lecturers
including: Mr. Rotkin, a former City of Santa Crnz Council member and Mayor of Santa Cruz;
John Laird, former California Assembly member and California Secretary of the Environment;
Gus Newport, Mayor of the City of Berkeley; and Ryan Coonerty, Mayor of Santa Cruz. Mr.
Laird did not have a traditional academic background since his highest education level was a
bachelor's degree.
Fieldwork Coordinator/Consultant's Qualifications, Duties, and Responsibilities
UCSD has several ~eldwork programs on its campus with programs that involve
placing students in th~ "field"'(viz., school, non-profit organization, governmental agency,
hospital, etc.) with the goal of providing tools to students for learning how to conduct
•'
"research" which, in this context, involves identifying problems and critically evaluating data.
The Fieldwork Coordinators/Consultants are responsible for tb,e logistical aspects oflinking
the students with these field sites.
In 1979, Mr. Rotkin was given the classification of Fieldwork Consultant and during
those years he taught three classes, held equivalency work assignment, and conducted
fieldwork coordination. Mr. Rotkin also testified that he did not spend his entire time teaching
as he took a quarter off to develop field studies in Nicaragua, El Salvador and Mexico. During
11

this time, he did not have office hour~; however, he continued to interact with students as the
Fieldwork Consultant.
Toby Hur is the Fieldwork Consultant at University of California, Los Angeles (UCLA)
L~1skin School of Public Affairs which is comprised of three departments, Social Welfare
Public Policy and Urban Planning. Mr. Hur received his graduate degree (Masters in Social
Work) from UCLA. Although the minimum requirement for a Fieldwork Consultant is a
master's degree, Mr. Hur testified that he knew of one Fieldwork Consultant colleague who
had completed a doctoral program without writing a dissertation and was designated as ABD.
Mr. Hur describes himself as a practice teacher and his work focuses on practical aspects of the
curriculum and mainly in relation to the internships that students are required to complete for
the Master's in Social Work program-a professional degree for practicing in the field.
Mr. Hur testified that Fieldwork Consultants are generally expected to teach listed
courses and to train practitioners in the field of social welfare. The Fieldwork Consultants are
also the instructor of record for the field practicum courses, which are internship opportunities,
not classroom courses. The graduate students in the program are expected and encouraged to
conduct basic research while at the assigned field location. The Fieldwork Consultants are
responsible for being active in their community, such as serving on board committees or
advisory board as part of their duty to maintain their practice.
During his first quarter as Fieldwork Consultant, Mr. Hur taught field courses which
involved contacting agencies where the students were placed and evaluating graduate-level
student performance in the field. Since his hire date in 2004, Mr. Hur has never taken a
teaching quarter off to conduct a research project; his time was constantly devoted to student
interaction. However, during his tenure at UCLA, he has worked on several research projects
12

that did not involve peer-reviewed publications. For instance, in 2008, Mr. Hur worked with
outside agencies that provided services to the homeless population in Los Angeles; he worked
on a media project concerning homelessness problems, in collaboration with students. 	Mr. Hur
has also completed other media projects including a documentary on homelessness to educate
graduate students and relevant practitioners.
UCLA's Dream Resource Center is a support center associated with undocumented
immigrant students who reside domestically. The Social Welfare department at UCLA
partners with the Dream Resource Center to research and examine the social issues associated
with undocumented students. Students at the Social Welfare department were expected to
research in collaboration with outside organizations and write "policy briefs" which comprised
40 percent of their final grade. Some of the students' policy briefs were published, but were
not peer-reviewed. Mr. Hur testified that he published a few of his own "reports"; those were
not peer-reviewed writings, but were published in a trade magazine.
Reappointment and Evaluations Process
The reappointment and evaluation standards vary depending on the employee's
classification. Professors of Practice generally are evaluated every three yeai-s. Ladder-rank
faculty who begin their careers as Assistant Professors are reviewed every two to three years; if
they receive positive reviews for a period of seven years, they are promoted to at least an
Associate Professor with "tenured" status. Adjunct Professors are also reviewed every two or
three years; they are reviewed by the entire faculty of the department who conduct an extensive
review of a candidate's "file,, that includes evidence of teaching, service, and research; and
after the review process, the department faculty make a recommendation for reappointment to
the school's dean.
13

Adjunct Professors have other professional obligations outside of UC, but within
UCSD, renewal of their appointment is dependent on teaching, research, and service both
within and outside ofUCSD. According to Mr. Ellman, historicaliy, the research component is
the most important factor; however, there is an effort by UCSD to recalibrate and have
teaching be equally as important. Additionally, the training of graduate students is also an
important review component of the Adjunct Professor's teaching purpose.
According to Ms. Lindlar, the Professor of Practice appointment period is similar to
that of Adjunct Professor and requires the same period of review. After the Professor of
Practice's three-year appointment period ends, he or she must undergo a review process for
reappointment and advancement in accordance with PPM Section 230-28 which provides that
Professors of Practice are evaluated based on their teaching quality and effectiveness,
contributions to research and/or creative mission of the University, and service activities
related to the appointee's professional expertise and achievements. The review process also
allows the eligible candidate to write a personal statement and discuss their accomplishments
and contributions which is also reviewed by the department. If the eligible candidate is
deemed effective, and there is a departmental need for the position, then he or she is
reappointed and is eligible for a 5% salary increase.
The three-year appointment period for Professors of Practice is longer than the typical
one-year appointment period for Lecturers. It is not expected that a Professor of Practice's
research work be perfonned in every quarter during their appointment period; for example, he
or she may devote one quarter to research work and no teaching assignment followed by a
quarter with only teaching assignments and no research :functions. Lecturers have a shorter
appointment period since they are hired to teach a specific course during a particular time
14

period. Further, unlike ladder~rank faculty, Lecturers cari be appointed for a term as short as
one quarter. unless UCSD anticipates a need for a teaching assignment longer than one quarter.
The reappointment and evaluation process for Unit 18 instructional staff, including
Lecturers, is governed 1mder the MOU. During the first six years of their appointment, Unit 18
employees receive annual performance reviews. If a Unit 18 employee reaches his sixth year
of reappointment or the equivalent thereof (also known as the "eye of the needle"), to obtain a
continuing appointment, it is necessary for the candidate to pass the six.th year milestone with
an "excellent" or above rating on his or her evaluation. MOU Article 7b, Section E outlines
the specific examples demonstrating "excellence in teaching.:' The MOU does not require Unit
18 employees to conduct peer-reviewed research projects to achieve this objective; however,
writing and publishing professional papers are treated favorably by the University. Mr. Hur
testified that after the six year mark. the Fieldwork Consultants continue to receive an annual
performance evaluation by the Director of Fieldwork Consultants and every three years
following, the Field Consultant receives a more comprehensive evaluation for "merit."
ISSUE
Whether it is appropriate to add the Professor of Practice and Visiting Professor of
Practice classifications to Unit 18.
DISCUSSION
I. 	PRESUMPTION NOT APPLICABLE
In Unit Determination for Professional Non-Academic Senate Instructional and
Research Employees of the University of California, supra, PERB Decision No. 270-H, the
Board identified UC's Unit 18 bargaining unit of Non-Academic Senate and non-adjunct
instructional staff as an appropriate system-wide bargaining unit under the HEERA. Thus,
15

there is a presumption that Unit 18 is appropriate and a petitioning party must show that the
proposed modification is more appropriate than the existing unit. (See e.g., State of California
(Department of Personnel Administration) (1990) PERB Decision No. 794wS [identifying an
appropriate state civil service unit under the Ralph C. Dills Act (Dills Act)13].) However, this
rebuttable presumption test is used only when the parties seek to move an existing
classification from one bargaining unit to another or to a separate bargaining unit. (Trustees of
the California State University (2007) PERB Decision No. 188 lwH.) It is not properly used
when placing a new classification into a unit because there is no presumption to rebut. (Id. at
p. 10.) Accordingly, the presuu~ption does not apply here. Thus, in determining the
appropriate placement in a unit for a new classification, such as the Professor of Practice
classifications, it is necessary to utilize the criteria set f01th in, section 3579(a), infra, e.g.,
shared goals, training, working conditions, interchange _with other employees, etc. (Id. at p.
11.)
II. 	UNIT DETERMINATION
HEERA's unit determination criteria are set forth in section 3579(a):
(a) In each case where the appropriateness of a unit is an issue, in
determining an appropriate unit, the board shall take into
consideration all of the following criteria:
(1) The internal and occupational community of interest among
the employees, including, but not limited to, the extent to which
they perform functionally related services or work toward
established common goals, the history of employee representation
with the employer, the extent to which the employees belong to
the same employee organization, the extent to which the
employees have common skills;working conditions, job duties,
or similar educational or training requirements, and the extent to
which the employees have common supervision.
13 The Dills Act is codified at section 3512 et seq.
16

(2) The effect that the projected unit will have on the meet and
confer rel,ationships, emphasizing the availability and authority of
employer representatives to deal effectively with employee
organizations representing the unit, and taking into account
factors such as work location, the numerical size of the unit, the
relationship of the unit to organizational patterns of the higher
education employer, and the effect on the existing classification
structure or existing classification schematic of dividing a single
class or single classification schematic among two or more units.
(3) The effect of the proposed unit on efficient operations of the
employer and the compatibility of the unit with the responsibility
of the higher education employer and its employees to serve
students and the public.
( 4) The number of employees and classifications in a proposed
unit, and its effect on the operations of the employer, on the
_objectives of providing the employees the right to effective
representation, and on the meet and confer relationship.
(5) The impact on the meet and confer relationship created by
fragmentation of employee groups or any proliferation of units
among the employees of the_ employer.
In cases where employees of the same classification perform different job duties, the
Board has applied an "individualized analysis" approach that must consider the actual nature.of
the work performed by each incumbent in the contested classification and then make a unit
determination based upon each individual employee's duties. ( City of Palmdale {2011) PERB
Decision No. 2203-M; San Ramon Valley Education Association, CTAINEA {Abbot and
Cameron) (1990) PERB Decision No. 802.) The University has hired only three Professors of
Practice: Mr. Fletcher, Mr. Smka, and Ms. Binkin. An individualized approach is appropriate
in the present matter since the record shows that the essential duties and responsibilities of the
three Professors of Practice vary; Mr. Fletcher provided classroom instruction, while Mr. Smka
and Ms. Binkin did not.
17

A. Community oflnte1·est
As stated above, the issue presented is whether the Professors of Practice share a
sufficient "community of interest'' with other positions in Unit 18, such that their inclusion in
Unit 18 is appropriate.
To determine whether a community of interest exists among employees, the Board
considers, inter alia, qualifications, training and skills, contact and interchange with oilier
employees, and job functions. (San Diego Community College District (2001) PERB Decision
No. 1445; Rio Hondo Community College District (1979) PERB Decision No. 87; Office of the
Santa Clara County Superintendent of Schools (1978) PERB Decision No. 59.) ''Among these
various factors, the Board has considered similarities in job duties more heavily than other
community of interest factors." (City of Palmdale, supra, PERB Decision No. 2203-M
[proposed decision, pp. 23-24; internal citations omitted].)
In considering whether a community of interest exists, "PERB eschews the use of a
checklist approach and instead considers the totality of circumstances." (San Diego
Community College District, supra, PERB Decision No. 1445, citing Monterey Peninsula
Community College District (1978) PERB Decision No. 76.) The focus of the inquiry
concerns whether employees share "substantial mutual interests." (Ibid.)
1. 	Nathan Fletcher
a. 	Skills, Qualifications, and Education
As previously discussed, in evaluating unit determinations between Mr. Fletcher and.
Unit 18 employees, the Board must detennine, among other things, whether there are
similarities in education levels, skills, and qualifications of the disputed position. Mr. Fletcher
was hired by the University because he was potentially a good researcher and because his skills
18

would contribute to the development of the Institute. Mr. Fletcher has specialized knowledge
to teach his assigned political science course given his background in public office. UC does
not hire Unit 18 Lecturers for their research skills; Lecturer appointments are made for the
purpose of providing instruction in a classroom setting. Fieldwork Consultants are also not
·hired for their research skills; however, such skills appear relevant for the teaching roles
required of incumbents given that research projects are required for students enrolled in
fieldwork programs.14
Mr. Fletcher has received a bachelor's degree, but does not have any additional
academic degrees. 15 Lecturers are not required to have a certain level of education to qualify
for a teaching position. Mr. Fletcher's education level is on par with other Unit 18 Lecturers,
including Mr. Laird, who also achieved a similar education level (i.e. a bachelor's degree).
Accordingly, there is some level of similarity between Mr. Fletcher's position and the
educational qualifications of Unit 18 employees. However, the record was devoid of evidence
showing that ladder-rank faculty and Adjunct.Professors have similar levels of education with
Unit 18 employees. Given that all instructors in all three groups may have varying education
14 As asserted by UC-AFT, the requisite level of distinction required for Mr. Fletcher's
position was not consistent with the University's desire to hire a "distinguished" practitioner
given that the parties previously entertained the idea in contract negotiations that such
distinction applies to current or former vice-presidents of the United States. However, this
point is not relevant for establishing the occupational community of interest factors in section
3579(a). Additionally, the University's decision to privately fund Mr. Fletcher's position is
not relevant for addressing the merits of the instant unit modification request. This is because
in unit determinations, the Board does not consider funding sources relevant for overcoming
the community of interest factors. (See Fairfield-Suisun Unified School District (1983) PERB
Decision No. 370.)
15 As such, he seems to fit the non-traditional academic backgrmmd requirement set
forth in the PPM. 	.
19

levels, the undersigned Board agent was unable to determine whether Mr. Fletcher's position is
uniquely suitable to be placed in Unit 18, based on his current educational qualifications.
b. 	Job Duties and Employee Interaction
Although job descriptions are relevant, the Board must consider the actual duties
performed by the disputed position(s) regardless of the job duties and responsibilities
enumerated in the job description. (See State of California, Department ofPersonnel
Administration (1991) PERB Decision No. 871-S, 8; see also, Hemet Unified School Dis(rict
(1990) PERB Decision No. 820 [the Board "must look at the actual nature of the work
performed by the incumbents in the position, rather than the work specified in the job
description." (Emphasis in original)].)
Mr. Fletcher has not completed his three year appointment at UCSD. During his first
semester he co-taught a political science course with a Professor; the following quarter he
taught another political science _course; he then took the remainder of the school year to run for
Mayor of San Diego, before returning to teaching service effective Janμary 1, 2014. The
evidence suggests that most of his efforts at UCSD were, to a large extent, spent lecturing
political science courses and meeting with students during office hours. However, these duties
are not particularly unique to Unit 18 or for that matter, ladder-rank faculty or Adjunct
Professors.
It was established that Mr. Fletcher's position did not require him to publish peer-
reviewed research writings during his appointment period. The criteria for evaluation and
appointment of the Professor of Practice also do not require such publications. However, Mr.
Fletcher was expected to contribute to the "research and/or creative mission of the University."
In that regard, Mr. Fletcher devoted some time on a weekly basis to interact and meet with
20

other ladder-rank faculty who were involved in establishing the Institute, which at that time
was inchoate. It was also conceivable that his participation in the Institute could assist the
ladder-rank faculty with shaping and developing research projects th.at could culminate in a
published peer-reviewed paper.
The record does not establish that research functions are a necessary component of Unit
18 employees• terms and conditions of employment; rather research duties appear to be an
·optional and tangential part of their employment. While there was some testimony that
Fieldwork. Consultants conducted research projects such as Mr. Hur's focus mi the homeless
population in Los Angeles, the record does not establish that the University's evaluation and
reappointment procedures mandated these types of activities for the advancement or promotion
of Mr. Hur's position. There is also no evidence th.at Mr. Hur collaborated with ladder-rank
faculty on such research projects. Additionally, while some Lecturers are granted
"equivalences" during their appointments to perform non-classroom work, to wit, developing
internship programs, issuing independent studies to students, and serving on committees, this is
not an explicit factor established by the University for evaluating Unit 18 employees for ·
appointments beyond the six year milestone. However, it should be noted that these types of
activities are looked upon favorably by the University when evaluating Unit 18 employees. By
contrast, the research contributions expected of Mr. Fletcher are not optional; they are a
minimum requirement of his employment as·a Professor of Practice.
The demarcation line between Unit 18 employees and other faculty was underscored in
Unit Determination for Professional NonwAcademic Senate Instructional and Research
Employees of the University of California, supra, PERB Decision No. 270-H, where the Board
stated that Unit 18 employees "generally have no research responsibilities, and, as a result,
21

often carry a heavier teaching load than their colleagues in the academic senate .... ,, (Id. at p.
10.) Notably, however, the Board's decision was silent on the definition of the "research"
responsibilities encompassed by both ladder-rank faculty and Adjunct Professors. Mr.
Fletcher's criteria for reappointment, namely the "contributions to research" factor, are
different from the research responsibilities envisioned by the Board of ladder-rank and Adjunct
ProfessC?rs. Nevertheless, the Board provided some insight into the establishment of a separate
research bargaining unit that includes professional research classifications who are included in
"Organized Research Units (ORU)" that consist of a ladder-rank faculty member to supervise
the project. (Id. at p; 13.) Specifically, the researchers16 at ORUs are involved in advising and
instructing the public, a function that is directly dependent on the research and publishing
programs for a specific area of interest. (Id. at p. 16.) Also included within the ORUs are
programs d~dicated to interdisciplinary research and publishing programs designed to increase
and convey knowledge of specific areas of interests. (Ibid.) The Board found that this group
does not interact with the Unit 18 employees. (Id. at p. 13.) Arguably, the research
classifications at ORUs and Mr. Fletcher's involvement with the Institute appear identical.
Both collaborate with ladder-rank faculty; neither interact with Lecturers directly or indirectly
at their respective research facilities; and both perform research functions that lead to
published writings by other non-Unit 18 faculty.
Another distinguishing characteristic between Adjunct Professors and Unit 18
employees was that although Adjunct Professors are involved in classroom instruction, their
"occupational community of interest lies not with classroom lecturers but with colleagues in
their primary occupation? be it research or a staff position." (Jd. at p. I 0.) Here, Mr. Fletcher
16 The researchers are included in UC's Research Support Professional Unit and are
represented by University of Professional and Technical Employees (UPTE).
22

has professional obligations (e.g .• director level position at Qualcomm) outside of University
work similar to Adjunct Professors which the Board held to be excluded from Unit 18 in Unit
Determination for Professional Non-Academic Senate Instructional and Research Employees
of the University of California, supra, PERB Decision No. 270-H. UC-AFT did not make a
case that Unit 18 employees have primary professional obligations outside of University
teaching service, similar to those ofM_r. Fletcher.
UC-AFT points out that the_ Professors of Practice, including Mr. Fletcher, are not
actually performing all three duties purportedly required of them: teaching, research and/or
creative work, and service. As previously described, Mr. Fletcher has performed teaching
duties for at least two quarters since his appointment. However, it appears disputed whether he
actually performs research and/or service functions.17 Analogous contentions were presented
to the Board when making unit determinations based on the alleged confidential status of a
disputed position. In at least two cases, the Board has found employees who were not
currently perrorming confidential duties (e.g., grievance processing and labor negotiations) to
have confidential status nonetheless. (Calexico Unified School District (1990) PERB Decision
No. 800 [confidential duties not performed since grievances were not Yfil filed and labor
negotiations had not Y.fil occmred];·Hemet Unified School District, supra, PERB Decision
No. 820 [disputed position had not Yfil performed confidential duties since there had been no
grievances and because her supervisor's medical problems precluded him from participating on
the employee's bargaining team during his regular rotation].) In contrast, in Mendocino
County ·office of Education (2002) PERB Decision No. 1505, the employer sought to exclude
17 Arguably, Mr. Fletcher's research contribution may be established, for example, by
his role in develop:ing the Institute; and his service contribution may be established by Mr.
Fletcher's participation in political office.
23

.
four disputed clerical positions from the classified bargaining unit on the basis that such
employees could perform confidential duties. However, the Board declined to grant the
petition since the job descriptions of the four positions did not specifically identify confidential
duties as part of the employees' responsibilities. (Id. at p. 3.) The employer's desire to
exclude the employees from the unit on the basis of "convenience" was also rejected by the
Board. (Ibid.)
Here, Mr. Fletcher's appointment letter and reappointment criteria specify that research
and service components are a term and condition of his employment. Although there is scant
evidence that he actually performed "research" work expected of him, his research
contributions to the Institute are reasonably comprehended within both his appointment letter
and re-appointment and evaluation criterion. Therefore, the research and service work are
component requirements of the position, although such assigned duties are not required to be
performed at a particular time during his appointment period from January 1, 2013 to June 30,
2015.18
c. 	Wages, Hours, and Terms· and Conditions of Employment
Like Mr. Fletcher, Unit 18 employees have offices, and provide office hours for student
interaction. However, this is not unique to Unit 18 employees; ladder-rank faculty and
Adjunct Professors also have offices and office hours .. Mr. Fletcher's salary is not based upon
the Unit 18 salary schedule; rather it is based, pro rata, on the salary scale applicable to ladder-
rank faculty. Mr. Fletcher's offer of employment also does not specify that he is entitled to
fringe benefits, lmlike Unit 18 employees. Mr. Fletcher was required to work at 28% time.
Mr. Ellman explained that during Mr. Fletcher's three-year appointment, he was expected to
18 Similarly, Assistant Professors are not required to complete their research projects in
a particular quarter, but are expected to do so during their three year appointment period.
24

teach at least two quarters every year, and in another year, Mr. Fletcher could teach for one
quarter and allocate the rest of his time on research efforts. Generally, Unit 18 employees have
heavier teaching loads and are expected to teach three quarters per year. For example, Mr.
Rotkin testified to having a teaching load of eight courses during the academic year as a
Lecturer, while Mr. Fletcher's appointment taught two courses during the ·academic year.
Some Unit 18 employees are granted equivalencies in lieu of instructional time as was the case
with Mr. -Rotkin who used his equivalencies to develop a new graduate program for his
department. Although Mr. Fletcher similarly participated in the development of the Institute
for the UCSD, unlike the equivalencies required of Mr. Rotkin, Mr. Fletcher's obligations were
not an·optional term and condition of his employment.
Based on the totality of the above, it does not appear that Mr. Fletcher's position shares
a community of interest with Unit 18 employees.
2. 	Leonard Srnka
Mr. Smka spent his career in industry,.working since 1979 as a research scientist at
Exxon. He possesses a PhD in Geophysics and has authored numerous publications that are
embodied in science journals. No testimony was provided on the factors set forth in section
3579, e.g., shared goals, training, working conditions, interchange with other employees, etc.;
however, his June 2013 appointment letter noted that he was appointed for "0% time" and
without compensation. Additionally and most relevant, Mr. Srnlca was not assigned a teaching
load during the entire academic year. In light of that fact that he does not teach any courses,
and due to the lack of evidence of his actual work duties, it is unclear whether Mr. Srnka's
primary obligations are to his practice in industry. There is also insufficient evidence to
conclude that Mr. Srnka's position has functionally equivalent work duties as a Lecturer, or
25

that he shares an occupational community of interest with Unit 18 employees. As such, it
cannot be concluded that his position must be included in Unit 18.
, 3. 	NancyBinkin
Ms. Binkin is a pediatrician and epidemiologist who possesses both an MD and an
MPH. In August 2013, she was appointed for a paid Professor of Practice position requiring
"25% time"; however, she did not have any teaching assignment at all during the academic
year. Like Mr. Srnka's position, neither party to the hearing presented sufficient testimony to
describe the criteria set forth in section 3579. Given the lack of evidence, the undersigned
Board agent cannot conclusively find that an occupational community of interest exists
between her Professor of Practice position and Unit 18 employees.
.
4. 	Vacant Visiting Professor of Practice Positions
Dming the hearing, the parties provided the defmition of a Visiting Professor of
Practice under PPM 230-20 and the evaluation standards of such position under PPM 230-28.
However, there is no dispute that the Visiting Professor of Practice classification has not been
filled by any candidates. PERE has long declined to make a determination regarding the
appropriate unit placement of a classification with no incumbent .. (Marin Community College
District (1978) PERB Decision No. 55.) Accordingly, since the Visiting Professor of Practice
position is vacant, it is not possible for PERB to make findings regarding the actual nature of
the work performed by the incumbents in these positions. For that reason, it cannot be
conclusively found that Visiting Professors of Practice share a sufficient occupational
community of interest with Unit 18 employees.
26

B. Other Criteria
Unit 18 employees have been represented by UC-AFT since the Board's 1982 unit
determination decision in Unit Determination for Professional Non~Academic Senate
Instructional and Research Employees of the University of California, supra, PERB Decision
No. 270-H: The ladder-rank faculty and Adjunct Professors have remained unrepresented
since that time. Since UCSD's creation of the Professor of Practice classification series in
..
August 2012, it has not been included in Unit 18. Prior to that time, and in negotiations for a
successor MOU, the parties had some disputes concerning whether "distinguished"
practitioners belong in the Unit 18, but there were no discus.sions about the creation of the
Professor of Practice or whether placement in Unit 18 was inappropriate. It is undisputed that
. UC-AFf has not represented the Professor of Practice classifications in collective bargaining.
Thus, the undersigned Board agent finds that the "history of employee representation with the
employer" is of little relevance in this case.
It must be determined if the addition of the Professor of Practice series to Unit 18
would have a negative effect on UC's efficient operations. Since UC would be required to
meet and confer over three additional employees, this additionar obligation appears minimal in
light of the thousands of Unit 18 employees currently represented at UC. However, it is clear
that the MOU's application of the evaluation and continuing appointment criteria would not be
applicable to the Professor of Practice series given that the incumbents do not devote their full
time to classroom and student interaction.
I
It is conceivable that incumbents serving as Professors of Practice could be subjected to
the evaluation and retention policy found in the APM regardless of whether this petition was
granted, since under HEERA, these potential conflict areas have been explicitly removed from
27

the scope ofrepresentation19 and could not be alleviated through the meet and confer process.20
Additionally. the Legislature considered it so important to preserve the existing procedures for
appointment, promotion, retention, and tenure of academic employees, that it embodied this
goal in its expression of HEERA's pm:pose in section 356l(b), which prov:ides, in pertinent
part, "The principle of peer review of appointment, promotion, retention, and tenure for
academic employees shall be preserved." It should be noted that if PERB were to grant the
unit modification, the mere fact that the University would be required to negotiate with UC-
UC-AFT over negotiable effects of these procedures is not sufficient to render the proposed
unit inappropriate. (Palo Alto Unified School District (1983) PERB Decision No. 352; see
also, Sant,, Ana Unified School District, supra, PERB Order No. Ad-383.) ·However, the
19 Section 3562(r) provides:
For purposes of the California State University only, "scope of
representation" means, and is limited to, wages, hours of
employment, and other terms and conditions of employment The
scope of representation shall not include: ...
(D) Criteria and standards to be used for the appointment,
promotion, evaluation, and tenure of academic employees, which
shall be the joint responsibility of the academic senate and the
trustees. The exclusive represe:Qtative shall have the right to
consult and be consulted on 1natters excluded from the scope of
representation pursuant to this subparagraph. If the trustees
withdraw any matter in this subparagraph from the responsibility
of the academic senate, the matter shall be within the scope of
representation.
20 In contrast, under the Educational Employment Relations Act (codified at section
3540 et seq.), "procedures to be used for the evaluation of employees" are negotiable subjects
of bargaining (section 3543.2(a)) and could be resolved at the bargaining table. The mere fact
that an employer is required to negotiate over such conflicts is not sufficient to render a
proposed unit inappropriate. (Palo Alto Unified School District, supra, PERB Decision
No. 352; see also, Santa Ana Unified School District (2010) PERB Order No. Ad-383.)
28

undersigned Board agent does not find that the above considerations serve to favorably balance
the deficit of community of interest factors discussed above.
Ill. 	ALLEGED UNFAIR LABOR PRACTICES
UC-AFT presents several e-mail exchanges between Mr. Ellman to University
administrators as evidence to show that the University's decision to exclude Mr. Fletcher from
Unit 18 was motivated entirely to discriminate against Unit 18 employees based on their
protected activity as union members., UC-AFT also argues that by initially title coding21 the
Professor of Practice as non-Unit 18 Adjunct Professors, the University violated the Switkes
letter. UC-AFT also asserts that the definition of the Professor of Practice classification series
in the PPM specifies that candidates lack a "traditional academic background"; but argues UC-
AFT, the University violated this criterion by appointing Mr. Srnka and Ms. Binkin who have
"exemplary" traditional R(?ademic backgrounds.
The Board has the authority to implement procedures for investigating unfair labor.
practices under the HEERA. (§ 3563.2.) Under PERE Regulation 32602, violations of
HEERA must be processed as unfair practice charges. The Board also bas the authority to
adopt regulations to decide contested representation matters. (§ 3263(:f).) Such procedures for
representation matters are enunciated in PERB Regulation sections 32700 through 32786. No
unfair practice charges were filed for the above allegations pursuant to PERE Regulation
32602; the instant dispute was filed pursuant to PERE Regulation 32786, which governs unit
modifications. The Board has explicitly stated that the unit determination proceedings are not
the "pro.per vehicle to remedy" allegations that the University violated HEERA. (Unit
21 A "title code" refers to the number value assigned to each title that is used at UCSD's
payroll system. When the Professor of Practice classification series was introduced, it used the
title code of the Adjunct Professor classification.
29

Determination for Professional Non-Academic Senate Instructional Employees (Unit 18) of the
University of California (1983) PERB Decision No. 270a-H at pp. 5-6.) Additionally, in unit
modification proceedings, PERB must not consider if the employer lawfully assigned duties to
a disputed position. (State of California, Department of Personnel Administration, supra,
PERB Decision No. 871-S, 8 [Board agent is not required to consider whether employer
lawfully assigned the duties specified in a job description of a Supervising Cook
classification].) Thus, this Administrative Determination shall not reach UC-AFT's
aforementioned contentions; such questions are more suitable in unfair labor practice
proceedings. ·
CONCLUSION
The evidence does not show that Mr. Fletcher's primary function and goal was to solely
provide instruction to students. Although Mr. Fletcher's position essentially performed
teaching duties and possesses the same qualifications as Lecturers, his appointment entails
conducting non-instructional functions, including research responsibilities that are not required
of Lecturers or Fieldwork Consultants. Further, based on his evaluation and reappointment
criteria, unlike Unit 18 Lecturers, his teaching ability is not a primary qualification for
employment and retention. His appointment appears to parallel that of an Adjunct Professor, a
classification which the Board has fo1.md not to have an occupational community of interest
with the instructional unit (Unit Determination for Professional Non-Academic Senate
Instructional and Research Employees of the University of California, supra, PERB Decision
No. 270-H.) It is further inconclusive how l\,1r. Smka's and Ms. Binkin's positions share an
occupational community of interest with Unit 18 employees to justify their inclusion in the
Unit, given that these Professors of Practice were not assigned a teaching load during the most
30

recent academic school year. Lastly, since there are no incumbents filling the Visiting
Professor of Practice position(s), PERB cannot make a unit determination for such
classification. Thus, based on the totality of the circumstances, it is not appropriate to place
the Professor of Practice and Vis.iting Professor of Practice classifications in Unit 18.
PROPOSED ORDER
For the above reasons and based upon the entire record in this case, UC-AFT's unit
modification petition to add Professor of Practice and Visiting Professor of Practice·
classifications to Unit 18 is hereby DEN1ED.
RIGHT TO APPEAL
Pursuant to California Code ofRegulatious, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
:Oecision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
,FAX: (916) 327-7960
.
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upcin for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also conside_red "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
31

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.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
32