Decision 1301H – The Regents of the University of California and Student Association of Graduate Employees, et al.

SF-RR-813-H

Decision Date: December 11, 1998

Decision Type: PERB Decision

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Perc Vol: 23
Perc Index: 30025

Decision Headnotes

103.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; CONSTITUTIONALITY OF EERA, DILLS, HEERA
103.03000 – State Issues

The Board declines to adopt the interpretation of HEERA with regard to the constitutional issue which the University advances; p. 18. While the University does not seek from PERB a ruling that HEERA is unconstitutional, it asks the Board to conclude that student academic employees do not meet the subsection (f) test because of the constitutional constraints imposed by Article IX, section 9 of the California State Constitution. A Board decision adopting the University's argument would represent a finding that the subsection (f) test is constitutionally unenforceable with regard to student academic employees. Without an appellate court determination on the issue, PERB has no power pursuant to Article III, section 3.5 to make the finding which the University urges it to make; pp. 18-19; However, PERB rejects the University's argument; p. 22.

200.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYEE? (SEE 502 AND 1309)
200.03000 – Students

With regard to GSIs, readers, special readers and tutors, the ALJ finds that employment in these positions is contingent on student status. The parties offer no exceptions to this finding, which the Board adopts as its own conclusion; p. 22. It is clear from the record that students employed in remedial tutor and part-time learning skills counselor positions were given employment preference because of their student status. While some non-students may be placed in these positions, under the approach adopted by the Board in UC San Diego the employment of students in these positions is clearly contingent on their status as students; p. 23. The services provided by students employed in these positions are related to their educational objectives. While employment in the disputed positions contributes to the accomplishment of educational objectives, it is not vital to achieving them. It can not be concluded from the evidence that students deprived of the opportunity for employment in these positions would fail to achieve their educational objectives. Instead, it is reasonable to conclude that affected students would find other means to accomplish those objectives, as do the many students who currently do not serve in the positions in dispute in this case. Conversely, the services performed by the student academic employees in dispute are vital to the University and must be performed without regard to whether they provide any educational benefit to student employees; p. 25. Coverage by HEERA can not and will not be allowed to undercut academic policies, selection processes for academic apprentice positions and the role of the academic senate. Board concludes HEERA coverage for these student employees would further the purposes of HEERA.

200.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYEE? (SEE 502 AND 1309)
200.04000 – Supervisors

The ALJ also found that student employees in GSI, GSR and tutor supervisor positions are not employees under HEERA, and should be excluded from the bargaining unit; p. 1.

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.01000 – In General

Questions of representation are inherently dynamic since job duties may fluctuate substantially over time. Thus, representation matters are subject to periodic review, especially where no representation is in place to determine if circumstances have changed. Prior determinations are binding if circumstances and Board precedent remains the same.

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.01000 – In General/Definition of Appropriate Unit

With regard to GSIs, readers, special readers and tutors, the ALJ finds that employment in these positions is contingent on student status. The parties offer no exceptions to this finding, which the Board adopts as its own conclusion; p. 22. It is clear from the record that students employed in remedial tutor and part-time learning skills counselor positions were given employment preference because of their student status. While some non-students may be placed in these positions, under the approach adopted by the Board in UC San Diego the employment of students in these positions is clearly contingent on their status as students; p. 23. The services provided by students employed in these positions are related to their educational objectives. While employment in the disputed positions contributes to the accomplishment of educational objectives, it is not vital to achieving them. It can not be concluded from the evidence that students deprived of the opportunity for employment in these positions would fail to achieve their educational objectives. Instead, it is reasonable to conclude that affected students would find other means to accomplish those objectives, as do the many students who currently do not serve in the positions in dispute in this case. Conversely, the services performed by the student academic employees in dispute are vital to the University and must be performed without regard to whether they provide any educational benefit to student employees; p. 25. Coverage by HEERA can not and will not be allowed to undercut academic policies, selection processes for academic apprentice positions and the role of the academic senate. Board concludes HEERA coverage for these student employees would further the purposes of HEERA.