Decision 2107H – Regents of the University of California

SF-UM-626-H

Decision Date: May 10, 2010

Decision Type: PERB Decision

View Full Text (PDF)

Perc Vol: 34
Perc Index: 81

Decision Headnotes

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts

Parties cannot waive, either expressly or by implication, PERB’s authority under HEERA section 3563(a) to determine appropriate bargaining units for higher education employers.

104.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD
104.01000 – Authority of Board In General; Validity and Application of Regulations (See also 102.01)

Parties cannot waive, either expressly or by implication, PERB’s authority under HEERA section 3563(a) to determine appropriate bargaining units for higher education employers.

1306.00000 – REPRESENTATION ISSUES; PROOF OF SUPPORT
1306.01000 – In General; Requirements

Under PERB Regulation 32781(e)(1), PERB lacks discretion to require proof of majority support among positions to be added to an established bargaining unit when the addition would increase the size of the unit by less than 10 percent. PERB does not follow NLRB case law requiring proof of support when a classification has been excluded from the unit for a significant period of time. Employees have the right to choose which employee organization, if any, will represent them but have no right to choose the bargaining unit in which their position is placed.

1307.00000 – REPRESENTATION ISSUES; QUESTION CONCERNING REPRESENTATION (QCR)
1307.01000 – In General/Definition

PERB Regulation 32781(e)(1) codifies the Board’s determination in past decisions that increasing the size of an established bargaining unit by 10 percent or more necessarily creates a question concerning representation. Conversely, adding positions totaling less than 10 percent of the existing unit does not call into question the incumbent union’s majority support.

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

Modification of residual healthcare professional unit to add case managers is appropriate because: (1) case managers share a community of interest with other classifications in the unit; (2) addition of 163 employees to unit would not have a negative effect on employer’s efficient operations; and (3) the existing exclusive representative has experience representing a diverse set of occupational groupings.

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.03000 – Community of Interest

Case managers share a community of interest with other classifications in residual health care professional unit because case managers: (1) are involved in patient care in a specialized capacity; (2) have common skills and duties, especially with clinical social workers; (3) possess advanced educational qualifications and skills; (4) have similar working conditions; and (5) share common supervision.

1310.00000 – REPRESENTATION ISSUES; UNIT MODIFICATION
1310.01000 – In General

Modification of residual healthcare professional unit to add case managers is appropriate because: (1) case managers share a community of interest with other classifications in the unit; (2) addition of 163 employees to unit would not have a negative effect on employer’s efficient operations; and (3) the existing exclusive representative has experience representing a diverse set of occupational groupings.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.01000 – In General

Parties cannot waive, either expressly or by implication, PERB’s authority under HEERA section 3563(a) to determine appropriate bargaining units for higher education employers.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

PERB Regulation 32781(e)(1) codifies the Board’s determination in past decisions that increasing the size of an established bargaining unit by 10 percent or more necessarily creates a question concerning representation. The regulation does not grant discretion to require proof of majority support among positions to be added to an established bargaining unit when the addition would increase the size of the unit by less than 10 percent.