The opinion
Filed 6/25/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA,
Petitioner,
v. A157597
PUBLIC EMPLOYMENT
RELATIONS BOARD, (PERB Dec. No. 2646-H)
Respondent;
UNIVERSITY PROFESSIONAL
AND TECHNICAL EMPLOYEES,
CWA LOCAL 9119,
Real Party in Interest.
University Professional and Technical Employees, CWA Local 9119
(UPTE) filed a petition for unit modification with the Public Employment
Relations Board (PERB) to add a newly created classification, systems
administrators I, II, and III, into a preexisting bargaining unit. PERB
granted the petition, and the Regents of the University of California
(University) refused to bargain over the terms and conditions of employment
for systems administrators. UPTE then filed an unfair practice charge
against the University, which also was granted by PERB.
The University subsequently filed a petition for writ of extraordinary
relief. In its petition, the University argued the systems administrator
classification did not share a community of interest with the existing
bargaining unit as required under the Higher Education Employer-Employee
Relations Act (HEERA; Gov. Code,1 § 3560 et seq.). The University further
asserted PERB erred in not requiring proof of majority support by the
unrepresented systems administrators subject to the unit modification
petition. We disagree and deny the petition.2
I. BACKGROUND
A. The Bargaining Unit and the “Career Tracks” Reclassification
The University has various bargaining units for its employees.
Relevant here, the “System-wide Technical Unit” (TX unit) includes
nonsupervisory employees who provide technical support services for
academic and scientific research throughout the University system. PERB
described the TX unit as follows: “The University’s technical employees are
nonprofessional employees whose work involves the use of independent
judgment and the exercise of specialized skills, often gained through
advanced education or training. Technical employees are very often licensed,
certified, or registered as a requirement of employment.” UPTE serves as the
exclusive representative for this unit.
In 2009, the University began an initiative to review and revise job
classifications for its unrepresented employees. This initiative was referred
to as “Career Tracks.” The purpose of Career Tracks was to establish system-
wide job classifications that more accurately reflected the work performed at
all locations in the University system. The initiative classified jobs into one
of three categories: “Operational and Technical,” “Professional,” and
1 All statutory references are to the Government Code unless otherwise
specified.
2 On December 12, 2019, PERB filed an unopposed request for judicial
notice of six former PERB regulations published in the California Regulatory
Code Supplement. We grant the request. (Evid. Code, § 452, subd. (b).)
2
“Supervisory & Management.” The professional category, which included the
systems administrator classifications, was described as including “ ‘positions
which require a theoretical and conceptual knowledge of the specialization.
Problems are typically solved through analysis and strategic thinking. At
more senior levels, incumbents may independently manage or administer
professional or independent programs, policies and resources.’ ” The
operational and technical category “ ‘includes support, operational, technical,
skilled or semi-skilled positions, where the skills are typically acquired
through vocational education and/or apprenticeships, certifications,
specialized, or on-the-job training. Problems are typically solved through
knowledge of past practices and procedural guidelines, or knowledge gained
through a certification or licensing program.’ ”
The Career Tracks reclassification process created the new systems
administrator classification primarily from employees then employed as
programmer analysts. The preexisting programmer analyst classification
was “very broad,” and Career Tracks divided that classification into 22
different job functions. One of those 22 job functions is the systems and
infrastructure administration job function, of which the systems
administrator classification is one part.
When the petition at issue was filed, 12 University locations had
implemented Career Tracks for their information technology employees,
which resulted in 325 employees being reclassified as systems
administrators. Five other University locations had not yet implemented
Career Tracks, although one location had preliminarily mapped some
employees to the systems administrator classification.
3
B. The Unit Modification Petitions
In 2016, UPTE filed a unit modification petition to add employees in
the business technical support analyst classification to the TX unit. At the
time of the petition, the number of business technical support analysts was
less than 10 percent of the number of employees in the TX unit.3 PERB thus
did not require UPTE to provide proof of majority support in connection with
the petition, it granted UPTE’s request to add the business technical support
analyst classifications to the TX unit, and the University does not appear to
have challenged that decision.
Shortly after PERB granted UPTE’s first petition, UPTE filed a second
unit modification petition (Petition). This petition sought to add employees
in the systems administrator classifications to the TX unit. The Petition
alleged UPTE represented approximately 3,900 employees in the TX unit,
and there were approximately 290 systems administrators. Accordingly, the
Petition indicated the size of the TX unit would only increase by 7.4 percent,
which is below the threshold requiring proof of majority support.
The University filed a response to the Petition, arguing the systems
administrator classifications are professional classifications and do not share
a community of interest with the TX unit. Specifically, the University noted
the TX unit consisted of “technical employees” who are nonprofessionals,
whereas the systems administrator classifications are within the University’s
3 PERB regulations are codified at California Code of Regulations,
title 8, section 31001 et seq. As discussed in greater detail in part II.E., post,
California Code of Regulations, title 8, section 32781 (PERB
Regulation 32781) requires employee organizations to provide proof of
majority support of persons employed in the classifications or positions to be
added to the bargaining unit if the proposed addition would increase the size
of the unit by 10 percent or more. (Cal. Code Regs, tit. 8, § 32781,
subd. (e)(1).)
4
“professional” category. The University argued the systems administrators
“routinely perform much more sophisticated work with computers” than
those employees in the TX unit, whereas TX unit employees perform work
that is “routine, general, and standard.”
It further asserted PERB should require UPTE to demonstrate proof of
majority support by the unrepresented systems administrators subject to the
unit modification petition. However, the University’s response
“acknowledges that granting the Petition would not increase the TX
bargaining unit by more than 10 percent and, therefore, PERB
regulation 32781[, subdivision] (e)(1) is not automatically triggered here.” As
of the date of the second petition, the University calculated there were
approximately 4,059 employees in the TX unit, and it estimated 325
employees would be affected by the unit modification. The University
argued, given UPTE’s “recent approach” to add smaller groups under the 10
percent threshold, requiring proof of majority support would further
HEERA’s fundamental principle of self-determination.
UPTE filed a reply, arguing the University’s classifications are
irrelevant, HEERA provides a statutory definition of “professional” that
excludes systems administrators, and the systems administrators share a
community of interest with TX unit members. Specifically, UPTE asserted
neither systems administrators nor other TX unit members are required to
obtain, as a prerequisite for their positions, advanced formal education in “ ‘a
field of science or learning customarily acquired by a prolonged course of
specialized intellectual instruction and study in an institution of higher
learning or a hospital . . . .’ ” UPTE further argued PERB should not deviate
from its prior decisions holding that it may not require proof of support for
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unit modification petitions that seek to increase the size of a bargaining unit
by less than 10 percent.
C. The Order to Show Cause
The supervising regional attorney for PERB issued an order to show
cause as to why the Petition should not be granted. Relying on the estimated
numbers provided by the University, PERB first concluded UPTE “is not
required to provide proof of support” because it seeks to add less than 10
percent of its bargaining unit. PERB also relied on its prior decision in
Regents of the University of California (2010) PERB Dec. No. 2107-H
(2010 Regents) to conclude “when the addition of classifications to an
established unit would increase the size of the established unit by less than
ten percent, PERB may not require proof of employee support.” It noted,
“This rule is not discretionary.”
Second, PERB addressed whether systems administrators are
professional employees. It concluded systems administrators do not “possess
advanced knowledge usually acquired by a specialized or advanced degree, as
opposed to a general academic education” and “therefore cannot be defined as
professional.”
Finally, PERB found a community of interest analysis was not required
but, in any event, several factors demonstrate such a community. PERB
explained the computer system job duties are similar between systems
administrators and TX unit members, they work in the same departments,
and they sometimes have common supervision.
The University filed a response to the order to show cause. The
University stated it prioritized implementing the initiative in the remaining
locations since the filing of the Petition, and it asserted the total number of
employees “performing the work of Systems Administrators . . . at all
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University locations exceeded 10% of the total number of employees in the TX
Unit.” While Career Tracks had yet to be implemented in the five remaining
locations, the University estimated between 172 and 190 employees would
eventually be classified as systems administrators, in addition to the 325
employees already reclassified. It noted these employees were neither new
nor performing new work, but existed as of the date of the Petition. The
University thus argued UPTE must provide proof of majority support.
The University also argued even if systems administrators do not meet
the statutory definition of “professional,” they should be recognized as
professionals with a distinct community of interest from employees in the TX
unit. First, the University noted an “ ‘administrative professionals’ unit”
would be more appropriate than the TX unit. It noted UPTE had recognized
the professional nature of these employees and sought to represent them in
such a unit, but the employees voted against such representation. Second,
the University argued PERB erred by only comparing systems administrators
with classifications within the TX unit rather than with other administrative
professional classifications. It asserted other classifications within the
“Systems and Infrastructure Administrator” function, which includes the
systems administrator classification, perform “high-level analysis, design,
and planning” distinct from the work performed by employees in the TX unit.
Third, the University argued common supervision was the exception, rather
than the rule. The University argued, based on the foregoing, PERB should
hold a hearing to assess whether systems administrators share more of a
community of interest with administrative professionals than with employees
in the TX unit.
Finally, the University again argued 2010 Regents, supra, PERB Dec.
No. 2107-H was wrongly decided because PERB Regulation 32781 does not
7
purport to eliminate PERB’s discretion to require proof of majority support
when a unit modification petition adds classifications constituting less than
10 percent of the established unit. It asserted PERB should exercise such
discretion to prevent UPTE from “manipulating the unit modification process
to deny employee choice.”
UPTE filed a reply to the University’s response to the order to show
cause. While generally rejecting the University’s position, UPTE focused its
reply on the University’s argument regarding the administrative
professionals unit. UPTE noted the systems administrator classification
emerged from various prior titles, and those titles “were extremely numerous
and diverse, performing functions far broader than the much narrower
[systems administrator] work.” It also clarified PERB has never recognized
an “administrative professionals unit” at the University.
D. The Administrative Determination
Following the briefing by the parties, PERB’s supervising regional
attorney issued an administrative determination, in which it affirmed its
prior conclusions and granted the unit modification petition. The
administrative determination held “the regulations require PERB to look to
the date a petition is filed to decide proof of support issues.” It emphasized
“it is the proposed addition sought by the petition, at the time of the petition,
that matters—not whether the proposed addition grows or shrinks after the
time the petition is filed.” PERB concluded it could not require proof of
support because the number of systems administrators on the date of the
petition constituted less than 10 percent of the total bargaining unit, despite
this number likely increasing.
PERB again concluded systems administrators do not meet the
statutory definition of “professional,” and it noted there was no “Operations
8
Support Professional” or “Administrative Professionals” unit at the
University to alternatively consider. PERB concluded the community of
interest factors supported including systems administrators in the TX unit.
In so holding, PERB found the employees “perform[ed] functionally related
services and work towards common goals,” had similar educational and
training requirements, and worked in the same departments. PERB also
explained inclusion would avoid the proliferation of units, and there was no
evidence such inclusion would negatively impact the meet and confer
relationship or the operations of the employer. PERB thus ordered systems
administrators I, II, and III added to the TX unit.
The University subsequently appealed the administrative
determination, and UPTE filed a response opposing the appeal.
E. PERB Order No. Ad-453-H
PERB affirmed the administrative determination. As an initial matter,
PERB declined to reverse 2010 Regents, supra, PERB Dec. No. 2107-H.
(Regents of the University of California (2017) PERB Order No. Ad-453-H
(2017 Regents), p. 7.) It agreed with 2010 Regent’s analysis and concluded
2010 Regent’s holding did not violate HEERA’s principle of employee choice
because (1) employees did not have the right to choose their bargaining unit,
and (2) employee choice is not absolute. (2017 Regents, at pp. 8–10.) PERB
also declined to rely on National Labor and Relations Board (NLRB)
precedents to overrule 2010 Regents because it does not follow NLRB’s
approach to accretion. (2017 Regents, at p. 8.)
As part of its decision, PERB also concluded the administrative
determination reasonably relied on UPTE’s estimate as to number of affected
employees. (2017 Regents, supra, PERB Order No. Ad-453-H, p. 7.) PERB
noted the University was unable to “produce complete and accurate lists of
9
employees” at the time of the administrative determination. (Ibid.) Because
there were no material facts in dispute, PERB concluded no evidentiary
hearing was needed. (Id. at p. 13.)
Next, PERB concluded systems administrators shared a community of
interest with TX unit employees. It noted “the duties of the Systems
Administrator series . . . overlap significantly with those of current TX unit
employees . . . and, as noted in the administrative determination, no party
has identified another existing bargaining unit in which the Systems
Administrator classifications would more appropriately belong.” (2017
Regents, supra, PERB Order No. Ad-453-H, p. 14.) PERB also concluded
employees in the systems administrator classification did not meet the
statutory definition for “ ‘professional employees’ ” because they are not
required to have an advanced degree to perform their job. (Id. at pp. 14–15.)
PERB ultimately denied the University’s appeal and affirmed the
administrative determination granting the unit modification petition. (2017
Regents, supra, PERB Order No. Ad-453-H, p. 26.) PERB also rejected the
University’s request to join in a request for judicial review of its decision.
(Regents of the University of California (2018) PERB Order No. JR-28-H.)
F. Unfair Practice Charge
In order to seek judicial review of PERB’s decision, the University
informed UPTE it would refuse to bargain over the terms and conditions of
employment for systems administrators. In response, UPTE filed an unfair
practice charge. The unfair practice charge contends the University violated
section 3571 by refusing to bargain and refusing to recognize systems
administrators as UPTE-represented employees. The University
acknowledged it was engaging in a technical refusal to bargain.
10
PERB concluded, in light of the University’s admission it refused to
recognize or bargain with UPTE as the exclusive representative of the
systems administrators, that the University violated HEERA. PERB
explained the University’s justifications for refusing to bargain were
considered and rejected in its prior decision on the Petition. It further noted
the University did not proffer “any newly discovered and previously
unavailable evidence” or identify any special circumstances justifying
reconsideration. Accordingly, PERB ordered the University to cease and
desist from refusing to bargain and take certain actions to effectuate HEERA.
The University subsequently filed its petition for writ of extraordinary
relief with this court.
II. DISCUSSION
A. Reviewability
The University contends a technical refusal to bargain, which resulted
in PERB sustaining an unfair practice charge against the University, is
reviewable by this court under section 3564, subdivision (c) and an
appropriate method for seeking review of an underlying unit determination
case. In response, UPTE contends the University should not be allowed to
“unilaterally overturn” PERB’s decision to not seek judicial review by
“willfully violat[ing]” HEERA.
Section 3564, subdivision (a) provides: “No employer or employee
organization shall have the right to judicial review of a unit determination
except: (1) when the board in response to a petition from an employer or
employee organization, agrees that the case is one of special importance and
joins in the request for such review; or (2) when the issue is raised as a
defense to an unfair practice complaint.” The plain language of the statute
demonstrates the Legislature did not intend to limit judicial review to merely
11
those situations in which PERB agrees to join in such a request. Rather,
subdivision (a)(2) provides employers and employee organizations with a
second option for obtaining judicial review—i.e., when “raised as a defense to
an unfair practice complaint.” Courts have found similar language under the
Agricultural Labor Relations Act to authorize such technical refusals to
bargain in order to obtain judicial review.4 (§ 3564, subd. (a)(2).) (See, e.g.,
Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2018)
23 Cal.App.5th 1129, 1217–1218 (Gerawan).) We see no reason to interpret
section 3564 otherwise.5
B. Standard of Review
Our Supreme Court recently addressed the standard of review for an
agency’s legal determinations in Boling v. Public Employment Relations Bd.
4 UPTE relies on Regents of the University of California (California
Nurses Association) (1989) PERB Dec. No. 722-H, to contend a technical
refusal to bargain is inappropriate for challenging unit modification petitions.
But in California Nurses Association, the employer sought to remove a
classification from a preexisting unit and then refused to bargain. (Id. at
p. 2.) PERB concluded the employer was obligated to follow PERB’s unit
modification procedures: “[T]he filing of a petition for unit modification is the
proper mechanism by which PERB can exercise its authority to decide, in
disputed cases, whether changed circumstances justify any proposed
modification to an existing unit. The applicable regulation does not, as urged
by the University, contemplate the use of the technical refusal to bargain to
secure PERB review of a disputed unit modification.” (Id. at p. 4.) Here,
however, the University did not unilaterally seek to modify a preexisting
unit. Rather, UPTE filed a unit modification petition, which PERB evaluated
and, ultimately, granted. The University now seeks review of that decision.
5UPTE also argues the legal issues are subject to res judicata because
they were fully resolved in the underlying unit modification petition.
(2017 Regents, supra, PERB Order No. Ad-453-H.) We disagree. UPTE’s
reasoning as to the underlying unit modification petition would prohibit all
technical refusals to bargain. (Gerawan, supra, 23 Cal.App.5th at pp. 1217–
1218 [recognizing technical refusals to bargain].)
12
(2018) 5 Cal.5th 898 (Boling): “ ‘When an agency is not exercising a
discretionary rulemaking power but merely construing a controlling statute,
“ ‘[t]he appropriate mode of review . . . is one in which the judiciary, although
taking ultimate responsibility for the construction of the statute, accords
great weight and respect to the administrative construction. [Citation.]’
[Citations.]” [Citation.] How much weight to accord an agency’s construction
is “situational,” and greater weight may be appropriate when an agency has a
“ ‘comparative interpretive advantage over the courts,’ ” as when “ ‘the legal
text to be interpreted is technical, obscure, complex, open-ended, or entwined
with issues of fact, policy, and discretion.’ ” [Citation.] . . . Nevertheless, the
proper interpretation of a statute is ultimately the court’s responsibility.’ ”
(Id. at p. 911.)
“ ‘[C]ourts generally defer to PERB’s construction of labor law
provisions’ ” because “interpretation of a public employee labor relations
statute ‘ “falls squarely within PERB’s legislatively designated field of
expertise,” ’ dealing with public agency labor relations.” (Boling, supra,
5 Cal.5th at pp. 911–912.) “ ‘We follow PERB’s interpretation unless it is
clearly erroneous.’ ” (Id. at p. 912.) “ ‘ “Even so, courts retain final authority
to ‘ “state the true meaning of the statute.” ’ [Citation.] A hybrid approach to
review in this narrow area maintains the court’s ultimate interpretive
authority while acknowledging the agency’s administrative expertise.” (Ibid.)
“[I]n reviewing PERB’s findings ‘ “we do not reweigh the evidence. If
there is a plausible basis for the Board’s factual decisions, we are not
concerned that contrary findings may seem to us equally reasonable, or even
more so. [Citations.] We will uphold the Board’s decision if it is supported by
substantial evidence on the whole record.” ’ ” (Boling, supra, 5 Cal.5th at
p. 912.) Under this substantial evidence standard, “when a labor board
13
chooses between two conflicting views, a reviewing court may not substitute
its judgment for that of the Board.” (California State Employees’ Assn. v.
Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 933.) “ ‘ “If
there is a plausible basis for the Board’s factual decisions, we are not
concerned that contrary findings may seem to us equally reasonable, or even
more so.” ’ ” (Ibid.)
C. Relevant Statutory Scheme
“In 1978, the California Legislature enacted HEERA, which extended
collective bargaining rights to employees of the University of California,
Hastings College of the Law and the California State University. (§ 3560,
subd. (b).)” (Regents of University of California v. Public Employment
Relations Bd. (1986) 41 Cal.3d 601, 604–605, fn. omitted.) HEERA provided,
in relevant part, the right of collective bargaining to employees in the
University of California system. (See Pac. Legal Found. v. Brown (1981)
29 Cal.3d 168, 177.) In enacting HEERA the Legislature intended to
“ ‘provid[e] a uniform basis for recognizing the right of the employees of these
systems to full freedom of association, self-organization, and designation of
representatives of their own choosing for the purpose of representation in
their employment relationships with their employers and to select one of
these organizations as their exclusive representative for the purpose of
meeting and conferring.’ ” (California State Employees’ Assn. v. Public
Employment Relations Bd., supra, 51 Cal.App.4th at p. 929, quoting § 3560,
subd. (e).)
HEERA is administered by PERB. (§ 3563.) PERB Regulation 32781
governs petitions for unit modification. Under PERB Regulation 32781,
subdivision (a)(1), PERB is authorized to add unrepresented classifications or
positions to an existing bargaining unit. (Cal. Code Regs., tit. 8, § 32781,
14
subd. (a)(1).) Pursuant to PERB Regulation 32781, subdivision (e)(1), PERB
must require proof of majority support of persons employed in the
classifications or positions to be added if the proposed addition would
increase the size of the established unit by 10 percent or more. (Cal. Code
Regs., tit. 8, § 32781, subd. (e)(1).)
D. Inclusion of Systems Administrators in the TX Unit
The University argues systems administrators should not be included
in a unit of technical employees for three reasons: (1) they fall within the
definition for “professional” employees under HEERA and should be separate
from “nonprofessional” employees; (2) even if they do not meet the
“professional” definition under HEERA, they are administrative professionals
who should not be included in the same unit as technical employees; and
(3) they do not share a community of interest with other TX unit
classifications.
1. Section 3562
“ ‘ “The fundamental rule of statutory construction is that the court
should ascertain the intent of the Legislature so as to effectuate the purpose
of the law. [Citations.]” ’ [Citation.] In determining such intent, the court
turns first to the words of the statute. [Citation.] ‘[W]here . . . the language
is clear, there can be no room for interpretation.’ ” (Regents of University of
California v. Public Employment Relations Bd., supra, 41 Cal.3d at p. 607.)
Section 3562, subdivision (o) defines “ ‘Professional employee’ ” as
“(1) Any employee engaged in work: (A) predominantly intellectual and
varied in character as opposed to routine mental, manual, mechanical, or
physical work; (B) involving the consistent exercise of discretion and
judgment in its performance; (C) of a character so that the output produced or
the result accomplished cannot be standardized in relation to a given period
15
of time; and (D) requiring knowledge of an advanced type in a field of science
or learning customarily acquired by a prolonged course of specialized
intellectual instruction and study in an institution of higher learning or a
hospital, as distinguished from a general academic education or from an
apprenticeship or from training in the performance of routine mental,
manual, or physical processes. [¶] (2) Any employee who: (A) has completed
the courses of specialized intellectual instruction and study described in
subparagraph (D) of paragraph (1), and (B) is performing related work under
the supervision of a professional person to qualify himself or herself to
become a professional employee as defined in paragraph (1).”
At issue is whether the systems administrator classification meets the
fourth requirement, i.e., requires “knowledge of an advanced type in a field of
science or learning customarily acquired by a prolonged course of specialized
intellectual instruction and study in an institution of higher learning or a
hospital . . . .” The University contends the “professional” definition does not
require a specific degree and PERB erred by not investigating the knowledge
and experience possessed by employees in the systems administrator
classification.
We agree with the University that an advanced degree is not a
requirement for qualifying as a “professional employee” under section 3562.
To hold otherwise would render the word “customarily” meaningless.
(Weaver v. Chavez (2005) 133 Cal.App.4th 1350, 1355 [“ ‘We give significance
to every word, avoiding an interpretation that renders any word
surplusage.’ ”].) However, the statute’s express language requires employees
to have acquired such advanced knowledge, and it must be more than
knowledge acquired “from a general academic education.” (§ 3562,
subd. (o)(1)(D).)
16
Unit Determination for the State of California (1979) PERB Dec.
No. 110-S (Unit Determination), provides relevant guidance. In that matter,
PERB addressed whether nonattorney hearing officers qualified as
“ ‘professional employees’ ” and could be included in the same unit as
attorneys. (Id. at pp. 17–18.) PERB acknowledged the “ ‘professional
employee’ ” definition “does not actually make graduate or advanced legal
academic training an absolute prerequisite,” but rather “[a]n employee who
acquires the qualifications for the required level of work through other than
the ‘customary means’ . . . may still be considered to be a professional
employee . . . .” (Ibid.) PERB thus concluded nonattorney hearing officers
“through training and on-the-job experience under supervision of professional
employees, qualify for inclusion . . . .” (Id. at pp. 18–19.) PERB further noted
“hearing officers generally are required to have active membership in the
State Bar of California,” which requires successful completion of an
examination and a demonstration of moral fitness, and usually requires
graduation from law school. (Id. at p. 19.) It also explained the professional
skills exercised by hearing officers, such as conducting hearings, applying
procedural and substantive rules of law, ruling on issues of evidence, and
writing legal decisions, arose in part from their “professional legal training.”
(Id. at p. 20.)
Here, the University has not identified any advanced knowledge of a
similar level to that outlined in Unit Determination. Nor has the University
identified any tasks performed by systems administrators that are based on
such advanced knowledge. Rather, the evidence in the record demonstrates
systems administrators apply a similar type of knowledge as utilized by other
job classifications in the TX unit. For example, the key responsibilities for
systems administrators generally include (1) implementing network
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communications, solutions, and system enhancements; (2) managing
computer servers, operating systems, databases, utilities and
Internet/intranet-related tools; (3) programming and related tasks; and
(4) managing security for “campus information” and “routers and switches.”
The required skills and knowledge include an ability to clearly communicate
technical information, an ability to assess system-related issues and “actions
needed to improve or correct performance,” an understanding of how
technology and systems can meet business needs, and skills to adapt
equipment and technology to meet user needs.
Similarly, the business technical support analyst classification
“provid[es] day-to-day advanced consultation, training, instruction and
troubleshooting/problem-solving to technical staff and end users for
hardware, software, network and related computer systems,” “[a]nalyzes,
recommends, installs, configures and evaluates systems and tools for internal
and end user use,” “[d]evelops and conducts tests of hardware and software
and reports on configurations and behavior,” “[d]evelops and provides
technical documentation and training,” and “[a]ssesses needs and
recommends hardware and software acquisitions and upgrades.” The
computer resource specialists “provide a wide range of technical and
consultative services related to the acquisition, use, and maintenance of
computer and/or network software and hardware and the development of
computer applications,” including “install[ing] and maintain[ing] hardware
and software systems,” “manipulat[ing] computer software,” and analyzing
“existing systems” and “problems to effect computer-oriented solutions.” And
the technology support analysts “provide technical support for all activities
related to desktop computer systems and related peripherals.” This technical
support encompasses a range of duties as to “desktop systems, workstation,
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service, network, and operating and other software and devices,” including
“participat[ing] in or manag[ing] development of IT and infrastructure
projects.”6 The technology support analyst classification specifically notes its
complexity by “the advanced nature of technical and analytical skills
required, the size, nature and complexity of the information technology
environment supported and by the planning and organizational activities in
which incumbents are involved.”
While the University argues PERB should have looked beyond the job
qualifications to “the actual knowledge and experience possessed by
incumbents,” it fails to cite any evidence suggesting a disparity between the
job descriptions and the employees’ actual skill sets. “The burden of
providing sufficient evidence demonstrating that a material issue of fact does
exist lies with the party seeking to exclude certain employees from the
bargaining unit . . . .” (Children of Promise Preparatory Academy (2013)
PERB Order No. Ad-402, p. 17.)
In the absence of such conflicting evidence, PERB was not obligated to
conduct a hearing. California Code of Regulations, title 8, section 32786,
6 The full description for the technology support analyst classification is
as follows: “Install, configure, upgrade and troubleshoot desktop systems,
workstation, service, network, and operating and other software and devices
and establish and maintain passwords, data integrity and file system
security in a heterogeneous desktop environment; identify, modify, test and
apply patches, upgrades and other software for automated distribution to the
organization’s computers, customize and configure software applications
based upon user needs, monitor desktop usage, track user requests and
incident reports and provide timely resolution of problems or escalate issue to
the next tier of support as appropriate; recommend hardware and software
solutions including new acquisitions and upgrades and replace and dispose of
obsolete equipment. May provide assistance with administration of incident
tracking software, conduct training programs to educate the organization’s
computer users about basic and specialized applications and participate in or
manage development of IT and infrastructure projects.”
19
subdivision (a) (PERB Regulation 32786) only requires a hearing “where
appropriate.” And PERB has repeatedly held a hearing is unnecessary where
no material issue of disputed fact exists. (See, e.g., Children of Promise
Preparatory Academy, supra, PERB Order No. Ad-402, p. 17 [“Although
Board agents must conduct an investigation, that investigation may lead
them to determine that sufficient evidence has been submitted to raise a
material issue that necessitates an evidentiary hearing, or they may
determine, as did the Board agent did in this case, that no material issue of
fact exists and thus that a hearing is unnecessary.”]; Mount Diablo Unified
School District (2014) PERB Order No. Ad-405, p. 4 [same]; St. HOPE Public
Schools (2018) PERB Order No. Ad-472, p. 15, fn. 12 [same].)
2. Community of Interest
The University next argues even if systems administrators do not fall
within the statutory definition of “professional,” they share a community of
interest distinct from those in the TX unit.
Section 3579, subdivision (a) identifies various criteria for PERB to
consider when assessing the appropriateness of a unit. These criteria
include: “(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. [¶] (2) The effect that the projected unit will have
on the meet and confer relationships, emphasizing the availability and
authority of employer representatives to deal effectively with employee
20
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.” (§ 3579, subd. (a).)
Here, PERB’s finding that a community of interest exists is supported
by substantial evidence. The job descriptions reflect a similarity in “common
skills” and “job duties” between systems administrators and employees in the
TX unit. For example, the systems administrator job summary states the
classification “[p]lans, designs, develops, implements and maintains systems
and programs to insure the integrity, reliability and security of data and
systems.” Technology support analysts likewise are involved in
“[i]nstall[ing], configure[ing], upgrad[ing] and troubleshoot[ing] . . . data
integrity and file system security.” The business technical support analyst
classification involves “advanced consultation, training, instruction and
troubleshooting/problem-solving” for “hardware, software, network and
related computer systems.”
21
The requisite knowledge and skills also overlap between systems
administrators and other classifications in the TX unit. For example,
systems administrator III’s utilize skills to adapt equipment and technology
to meet user needs, and business technical support analyst III’s provide
strategic input to system redesign or development based on user needs.
Similarly, systems administrator III’s identify systems-related issues and
how to improve performance, and business technical support analyst III’s
provide technical solutions to “a wide range of issues.” Likewise, systems
administrator III’s apply knowledge regarding systems to meet business
needs, technology support analyst III’s apply technical knowledge to resolve
difficult and complex issues, and business technical support analyst III’s
analyze network problems and resolve issues that may have strategic impact.
The University’s main argument against finding a community of
interest is that systems administrators engage in “high-level analysis”
similar to that performed by other unrepresented classifications, whereas
employees in the TX unit work primarily with desktop computers and end-
users. However, the record suggests otherwise. While computer resource
specialists and technology support analysts do appear to work primarily with
desktop computers and end-users, business technical support analysts
analyze and evaluate “systems and tools” for internal use and end-users.
Moreover, the University fails to explain why working with desktop
computers and end-users is at odds with “high-level analysis, design, and
planning.” To the contrary, the job descriptions for TX unit classifications are
replete with references to such work. The job descriptions also indicate the
complex nature of certain TX unit classifications. For example, the
technology support analyst “Series Concept” description specifically notes its
complexity “by the advanced nature of technical and analytical skills
22
required, the size, nature and complexity of the information technology
environment supported and by the planning and organizational activities in
which incumbents are involved.” Similarly, the business technical support
analyst classification is categorized by the University as “professional,” just
like the systems administrator classification.
Certainly, the record indicates some differences between systems
administrators and other TX unit classifications. The job descriptions
indicate systems administrators primarily focus on data and security, while
those functions play a smaller role in other classifications. A declaration
submitted by the University asserts systems administrators work on a
broader scale than TX unit employees—i.e., systems administrators manage
the University’s “enterprise computer systems and technologies,” which
“affect numerous users across the organization,” whereas TX unit employees
work on an individual’s or a specific department’s computer systems.
However, “ ‘ “[i]f there is a plausible basis for the Board’s factual decisions,
we are not concerned that contrary findings may seem to us equally
reasonable, or even more so.” ’ ” (Boling, supra, 5 Cal.5th at p. 912.) The
record provides such a basis for PERB’s conclusion that systems
administrators have “common skills” and “job duties” with employees in the
TX unit.
Moreover, other factors support PERB’s community of interest finding.
Systems administrators, for example, “perform functionally related services
or work toward established common goals.” (§ 3579, subd. (a)(1).) The
University acknowledges systems administrators “design and maintain the
computer systems used by employees in [the] TX classifications.” Likewise,
neither systems administrators nor other TX unit classifications require a
bachelor’s degree, and systems administrators have identical educational
23
requirements to business technical support analysts. The record also
indicates at least some systems administrators, albeit a minority, share
common supervision with TX unit employees.
Section 3579 also instructs us to consider the impact of the unit
modification on issues such as “meet and confer relationships,” “efficient
operations of the employer,” the effect on “the objectives of providing the
employees the right to effective representation,” and “fragmentation of
employee groups.” (§ 3579, subd. (a)(2)–(5).) On the one hand, allowing the
unit modification minimizes proliferation of units and avoids fragmentation
of employee groups. On the other hand, the record suggests the unit
modification may undermine “the objectives of providing the employees the
right to effective representation.” A prior attempt by UPTE to represent an
“administrative professionals unit,” which would have included the majority
of employees performing the newly classified systems administrator work,
was rejected. The record also contains various letters from employees in the
systems administrator classification stating they do not wish to be part of the
TX unit or represented by UPTE.
As a whole, however, we cannot conclude PERB abused its discretion in
determining systems administrators could appropriately be included in the
TX unit. (See Regents of the University of California (2015) PERB Dec.
No. 2422-H, p. 6 [“No one criterion in the community of interest analysis is
determinative. 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.’ ”].) Nor, as the
University suggests, was UPTE required to create a new unit rather than
seek to add employees to an existing unit. We are unaware of any authority
imposing such a requirement. Rather, the unit modification petition must
24
satisfy the community of interest analysis, and PERB must only identify an
appropriate unit, not the most appropriate unit. (§ 3573; San Jose Unified
School District (1979) PERB Dec. No. 90, p. 13, fn. 16 [“a unit that is
appropriate for meeting and negotiating need not be the most appropriate
unit”]; Santa Clara County Dist. Attorney Investigators Assn. v. County of
Santa Clara (1975) 51 Cal.App.3d 255, 260.)
E. Proof of Majority Support
Having concluded substantial evidence supports PERB’s placement of
systems administrators in the TX unit, we turn to whether PERB erred in not
requiring proof of majority support. The University contends PERB failed to
count all employees performing the duties of systems administrators at the
time of the Petition, which would have exceeded the 10 percent threshold.
The University further contends PERB failed to exercise its discretion to
require proof of majority support even if the Petition was below the 10
percent threshold.
Unit modification petitions are governed by PERB Regulation 32781.
Subdivision (e)(1) provides, “If the petition requests the addition of
classifications or positions to an established unit, and the proposed addition
would increase the size of the established unit by ten percent or more, the
Board shall require proof of majority support of persons employed in the
classifications or positions to be added.” (Cal. Code Regs., tit. 8, § 32781,
subd. (e)(1).) We conclude PERB properly counted the number of systems
administrators at the time the Petition was filed. We further find PERB’s
holding that it lacked discretion to require proof of majority support from
UPTE was not clearly erroneous.
1. Number of Systems Administrators at the Time of the Petition
25
The parties do not dispute, at the time the Petition was filed, the
number of employees in the systems administrator classification was less
than 10 percent of the TX unit. By the University’s own calculation, the TX
unit included approximately 4,059 employees, and 325 employees were in the
systems administrator classification. Also undisputed is the fact that the
University was in the process of reclassifying employees, and certain
additional employees would likely be reclassified as systems administrators.
The University submitted a declaration stating that approximately 154
additional employees would likely be reclassified.
Nor does either party argue the number of systems administrators
should be calculated after the filing date of the Petition. Rather, the parties
disagree about whether PERB was required to consider employees
performing the job duties of systems administrators but under a different
classification. Specifically, the University argues PERB was required to look
at job duties—rather than any particular job title—in assessing the number
of employees impacted by the unit modification at the time UPTE filed the
Petition. We disagree.
As an initial matter, the University’s position is at odds with the
statutory language. PERB Regulation 32781, subdivision (e)(1) specifically
provides PERB “shall require proof of majority support of persons employed
in the classifications or positions to be added.” (Cal. Code Regs., tit. 8,
§ 32781, subd. (e)(1), italics added.) The regulation focuses on those
individuals actively “employed in” specific classifications or positions. (Id.,
subd. (e)(2).) The employees at issue here were employed in other
classifications at the time of the Petition.
We also disagree PERB has an obligation to look at job duties when
assessing the need for proof of majority support. To this end, we find San
26
Francisco Housing Authority (2015) PERB Order No. Ad-420-M instructive.
There, a union appealed dismissal of its unit modification petition. (Id. at
p. 1.) The union argued the employer had been hiring employees into a
maintenance mechanics classification, which was represented by a different
bargaining unit, to perform work traditionally performed by the union’s unit
members. (Id. at pp. 2–3.) That petition sought to transfer the maintenance
mechanic work—but not necessarily the position—back to its bargaining
unit. (Id. at p. 3.) The union argued its request was consistent with
transferring classifications between bargaining units. (Ibid.)
PERB concluded, in relevant part, that a unit modification petition
seeking to transfer “work” rather than positions or classifications was not
appropriate. (San Francisco Housing Authority, supra, PERB Order No. Ad-
420-M, pp. 4–5, 9.) In adopting the administrative determination, PERB
emphasized “unit modification procedures concern the appropriate inclusion
or exclusion of ‘positions’ or ‘classifications’ from a bargaining unit.” (Id. at
pp. 9, 12.)
While San Francisco Housing Authority, supra, PERB Order No. Ad-
420-M, involved the Meyers-Milias-Brown Act (§ 3500 et seq.) rather than
HEERA, the regulatory language is identical, and we see no reason for
applying a different interpretation to PERB Regulation 32781. (See Gund v.
County of Trinity (2018) 24 Cal.App.5th 185, 196, review granted Aug. 22,
2018, S249792 [“Under the general rules of statutory construction, we may
consider judicial interpretation of similar words in other statutes dealing
with analogous subject matter.”].)
The employees at issue here were employed by the University as
programmer analysts when the Petition was filed. The programmer analyst
classification was “broad,” and has since been divided in 22 different job
27
functions, of which the systems administrator classification is one part of one
job function. Accordingly, this case does not present a situation in which all
programmer analysts were performing the work of systems administrators,
and the employees merely needed a job title change. Rather, the University
is asking PERB to evaluate the work performed by over 1,500 programmer
analysts and include those performing the work of systems administrators—
which, by the University’s own calculation would encompass approximately 8
to 9 percent of programmer analysts while the remaining 91 to 92 percent
perform nonsystems administrator work. This directly contradicts San
Francisco Housing Authority, supra, PERB Order No. Ad-420-M.
Limiting unit modification petitions to “classifications or positions” also
furthers the goal, expressed in the legislative history of PERB
Regulation 32781, of “eliminat[ing] ambiguity and add[ing] clarity regarding
when majority proof of support is required.” (Cal. Reg. Notice Register 2005,
No. 51-Z, p. 1773.) If PERB were required to consider all work functions of
all employees, unit modification petitions would face numerous delays and,
potentially, require a hearing for every unit modification petition. For
example, PERB would need to determine what other classifications perform
job functions that may overlap with classifications in the established unit. It
would then need to assess what job functions, on an employee-by-employee
basis, those employees were actually performing. When considering
employers with thousands of employees, such a process is unrealistic. While
PERB’s unit modification regulations do not mandate a decision by a specific
date, “public policy favor[s] rapid and expedient resolution of representation
matters.” (County of Fresno (2016) PERB Order No. Ad-433-M, p. 7.) Even in
this situation, in which the University was already in the middle of its
reclassification, the University needed from December 2016—the date the
28
Petition was filed—until May 2017, to provide a preliminary identification of
employees at one location and anticipated requiring three to five more
months to provide preliminary identifications at the remaining locations.
The University fails to address how unions could ever seek proof of majority
support if they cannot know which employees may be part of the unit
modification petition.
Accordingly, the proper focus is on what employees were in the job
classifications at issue at the time the Petition was filed. As explained in
Children of Promise Preparatory Academy, supra, PERB Order No. Ad-402,
“Proof of support is determined by PERB when a petition is filed and an
employer provides a list of employees that comprise the petitioned-for unit.
When a dispute arises thereafter as to the composition of the bargaining unit,
PERB conducts an investigation to determine unit appropriateness. During
this investigative process, which may or may not require an evidentiary
hearing, the identity of individual employees within the unit may change
over time as employees leave employment and are replaced. However, the
initial determination regarding sufficiency of support . . . is determinative on
the issue of majority support within the petitioned-for unit.” (Id. at pp. 14–
15.) While Children of Promise Preparatory Academy, supra, PERB Order
No. Ad-402, Kings County Office of Education (1990) PERB Dec. No. 801, and
Orcutt Union Elementary School District (2011) PERB Dec. No. 2183 involved
hiring and resignations that occurred after the petitions were filed, we
conclude their holdings equally apply to employees in different job
classifications at the time of the petition. (Accord, San Francisco Housing
Authority, supra, PERB Order No. Ad-420-M, pp. 4–5, 9 [focus on “positions”
and “classifications,” not “work”].)
29
None of the cases cited by the University compel a different conclusion.
For example, in Regents of the University of California, supra, PERB
Dec. No. 2422-H, PERB assessed whether new classifications belonged in a
certain bargaining unit based on the statutory “community of interest”
criteria. (Id. at p. 9.) PERB’s discussion of job duties occurred in the context
of a community of interest analysis, and PERB assessed where individuals
with certain job titles—not individuals performing certain job duties—should
be placed. (Id. at pp. 13–14, 18–19.) The decision did not hold that PERB
must look to job duties, rather than job titles, in assessing whether the 10
percent threshold is triggered. Likewise, Hemet Unified School District
(1990) PERB Dec. No. 820 involved a unit modification petition to add
“certain job positions” to a bargaining unit. (Id. at p. 1.) In determining
whether a job classification should be placed in a certain bargaining unit,
PERB noted it “look[s] at the actual nature of the work performed by the
incumbents in the position . . . .” (Id. at p. 9, underscoring omitted.) This
approach is in accord with the community of interest analysis, which includes
“job duties” as a factor for consideration. (§ 3579, subd. (a)(1).) While Hemet
recognized a job classification may be split into those who are included in a
bargaining unit and those who are not based on differing job functions,
nothing in the decision suggested PERB must consider whether employees
outside the job classification should be included in the classification. (Accord,
Marin Community College Dist. (1978) PERB Dec. No. 55, pp. 7–8, 18
[establishing three classified negotiating units and assessing job duties as
part of community of interest analysis when assessing which classifications of
employees should be placed into which units]; see also Regents of the
University of California, supra, PERB Dec. No. 2422-H, p. 14 [in unit
determination proceedings, PERB is “without authority” to dictate whether
30
or how to create new classifications, but merely assesses whether duties
performed by that classification “warrant inclusion in the petitioned-for
unit”].)
It is undisputed the number of systems administrators was less than 10
percent of the established bargaining unit at the time the Petition was filed.
While a small subsection of the programmer analyst classification would
eventually be reclassified as systems administrators, those employees had
not been identified and that reclassification had not happened at the time of
the Petition. Because unit modification petitions focus on “classifications” or
“positions,” and not “work,” PERB did not err in concluding UPTE was not
required to provide proof of majority support.
2. Whether PERB Should Have Conducted an Evidentiary
Hearing
The University next contends PERB should have conducted an
evidentiary hearing on how many employees were performing the job duties
of systems administrators. PERB Regulation 32786 instructs PERB to
“investigate” and “where appropriate, conduct a hearing . . . in order to decide
the questions raised by the petition and to ensure full compliance with the
provisions of the law.” (Cal. Code Regs., tit. 8, § 32786, subd. (a).) But it is
undisputed the University had not reclassified those outstanding
employees—or even begun the reclassification process at four locations—at
the time the Petition was filed. And it was these undisputed facts that
resulted in those employees being excluded from the assessment of whether
to require proof of majority support. As explained in part II.E.1., ante, PERB
properly concluded it must evaluate the proof of majority support
requirement based on the number of employees in a classification, rather
than performing certain job duties, and it did so as of the date the Petition
was filed. In the absence of conflicting evidence, PERB was not obligated to
31
conduct a hearing. (Cal. Code Regs., tit. 8, § 32786; Children of Promise
Preparatory Academy, supra, PERB Order No. Ad-402, p. 17.)
3. Whether PERB Has Discretion to Require Proof of Majority
Support If Proposed Unit Modification Is Less Than
10 Percent
Finally, the University contends PERB erred in concluding it lacked
discretion to require proof of majority support if the number of employees to
be added was less than 10 percent of the existing unit. We disagree.
PERB Regulation 32781, subdivision (e)(1) provides: “If the petition
requests the addition of classifications or positions to an established unit, and
the proposed addition would increase the size of the established unit by ten
percent or more, the Board shall require proof of majority support of persons
employed in the classifications or positions to be added.” (Cal. Code Regs.,
tit. 8, § 32786, subd. (e)(1).) PERB has interpreted this language as
prohibiting it from requiring proof of majority support if the proposed
addition is less than 10 percent of the established unit. (2010 Regents, supra,
PERB Dec. No. 2107-H, p. 21 [“PERB may not require proof of majority
support when a unit modification petition seeks to add unrepresented
positions that total less than 10 percent of the established unit”].) While the
University acknowledges the 2010 Regents decision, it argues the matter was
wrongly decided and inconsistent with HEERA and the National Labor
Relations Act (NLRA; 29 U.S.C. § 151 et seq.).
“Generally, we apply the same rules governing interpretation of
statutes to the interpretation of administrative regulations. [Citation.] ‘ “We
give the regulatory language its plain, commonsense meaning. If possible, we
must accord meaning to every word and phrase in a regulation, and we must
read regulations as a whole so that all of the parts are given effect.
[Citation.] If the regulatory language is clear and unambiguous, our task is
32
at an end, and there is no need to resort to canons of construction and
extrinsic aids to interpretation. [Citation.]” [Citation.] Our primary aim is
to ascertain the intent of the administrative agency that issued the
regulation. [Citation.] When that intent “cannot be discerned directly from
the language of the regulation, we may look to a variety of extrinsic aids,
including the purpose of the regulation, the legislative history, public policy,
and the regulatory scheme of which the regulation is a part.” ’ ” (Berkeley
Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 890–
891.)
The plain language of PERB Regulation 32781 sets forth when proof of
majority support is required. It is silent as to whether proof of majority
support may be required in other instances. Accordingly, we must turn to
extrinsic aids to assist our interpretation.
The regulatory history provides useful guidance. Prior to imposing the
10 percent threshold for requiring majority support, former subdivision (f) of
PERB Regulation 32781 stated, “If the petition requests the addition of
classifications or positions to an established unit . . . , the Board may require
proof of majority support of persons employed in the classifications or
positions to be added.” (Cal. Code Regs., tit. 8, § 32781, former subd. (f),
Register 85, No. 41-A (Oct. 12, 1985) p. 2060.4, italics added.) PERB removed
this “may require” language when revising this provision, and instead
replaced it with language stating PERB “shall require proof of majority
support” if the unit modification petition “would increase the size of the
established unit by ten percent or more.” (Cal. Code Regs., tit. 8, § 32781,
subd. (e)(1).) “We presume the Legislature intends to change the meaning of
a law when it alters the statutory language [citation], as for example when it
deletes express provisions of the prior version [citation]. Because the
33
Legislature is presumed aware of prior judicial constructions of a statute, the
inference of altered intent is particularly compelling when, as in this case,
the omitted word or phrase was significant to such a construction.” (Dix v.
Superior Court (1991) 53 Cal.3d 442, 461–462.) Accordingly, PERB
Regulation 32781’s revision, which replaces the “may require” language with
the “shall require” language, is key to its interpretation. PERB
Regulation 32781 could easily have been revised to merely add the “shall
require” provision to the preexisting “may require” language. The regulation
thus could have stated PERB may require proof of majority support for unit
modification petitions but shall require such proof when the proposed
addition constitutes 10 percent or more of the established unit. But that did
not occur. The decision to omit the “may require” language indicates a
legislative intent to remove discretion from PERB to generally require proof
of majority support.
PERB also interpreted this regulation in 2010 Regents, supra, PERB
Dec. No. 2107-H, a matter involving the same parties to the current dispute.
In that case, PERB evaluated a unit modification petition seeking to add
unrepresented case managers to a bargaining unit represented by UPTE.
(Id. at pp. 1–2.) The University argued in part UPTE’s petition should be
denied because it was not accompanied by proof of majority support. (Id. at
p. 19.) The University asserted PERB Regulation 32781, subdivision (e)(1)
gave PERB discretion to require such proof. (2010 Regents, at p. 20.) PERB
rejected this argument. (Ibid.) In reaching its conclusion, PERB explained
prior iterations of PERB Regulation 32781 gave it discretion to require proof
of majority support, and it had exercised such discretion when a petition
sought to “ ‘add a substantial number of employees’ ” such that it “ ‘would
constitute a substantial change in the structure of that unit.’ ” (2010 Regents,
34
at p. 20, citing State of California, Department of Personnel Administration
(1989) PERB Dec. No. 776-S (DPA).)7 It further explained the amendment to
PERB Regulation 32781’s proof of majority support requirement was
designed “to eliminate ambiguity and add clarity regarding when majority
proof of support is required . . . . Section 32781(e) . . . states that PERB ‘may
require such support, but the regulations do not provide criteria for when
PERB ‘should’ require support. Use of a standard whereby support was
required if the positions to be added equal 10 percent or more of the number
of employees in the established unit was approved in a Board decision ([DPA,
supra,] PERB Decision No. 776-S) but never adopted as ‘the standard’ by the
Board. The proposed amendments to section 32781 . . . would incorporate the
10 percent standard and make it mandatory.” (2010 Regents, at pp. 20–21,
citing Cal. Reg. Notice Register 2005, No. 51-Z, p. 1773.) While the revised
PERB Regulation 32781, subdivision (e)(1) only stated when PERB “shall
require” proof, PERB concluded the regulation contained no “ ‘residual’
discretion.” (2010 Regents, at p. 21.) It held “increasing the unit by less than
7 The University argues DPA, supra, PERB Dec. No. 776-S did not
support the “ ‘ten percent rule’ ” adopted in the current version of PERB
Regulation 32781 because it involved a potential unit increase of 22 percent.
While DPA does not discuss a “ ‘ten percent rule,’ ” it explained, “In situations
where a unit modification petition seeks to add a substantial number of
employees to an established bargaining unit, the Board has required proof of
majority support as a matter of practice since adoption of the [then-]current
unit modification regulations.” (DPA, at p. 1, adopting order dismissing
petition at p. 4.) And DPA determined its situation “constitutes precisely the
type of situation envisioned by the Board in the language of Regulation 32781
. . . .” (Id. at p. 1, adopting order dismissing petition at p. 5.) When PERB
subsequently revised PERB Regulation 32781, it referenced DPA, thus
indicating it considered 10 percent “a substantial number” that should
require proof of majority support “as a matter of practice.” Nothing in the
DPA decision undermines PERB Regulation 32781, subdivision (e)(1) or
contradicts PERB’s interpretation.
35
ten percent does not call into question the incumbent union’s majority
support. Therefore, PERB may not require proof of majority support when a
unit modification petition seeks to add unrepresented positions that total less
than ten percent of the established unit.” (Ibid.) PERB affirmed that
interpretation in County of Riverside (2011) PERB Dec. No. 2163-M, pages 3–
4, Orcutt Union Elementary School District, supra, PERB Dec. No. 2183,
page 3, and, most recently, in the present dispute.
PERB’s interpretation of its own regulation is entitled to substantial
deference. (In re Cabrera (2012) 55 Cal.4th 683, 690 [“ ‘As a general matter,
courts will be deferential to government agency interpretations of their own
regulations, particularly when the interpretation involves matters within the
agency’s expertise and does not plainly conflict with a statutory mandate.’ ”].)
The University, however, argues such an interpretation is fundamentally at
odds with HEERA. We disagree. HEERA delegated to PERB the task of
establishing procedures for unit modification petitions. (§ 3563, subd. (e).) In
delegating such authority, the Legislature knew how to impose proof of
support requirements. (See, e.g., § 3573 [proof of majority support required
for union to be recognized as exclusive representative]; § 3576 [proof of 30
percent support required for decertification petition].) However, the
Legislature did not impose any such requirements when delegating authority
to PERB in connection with unit modification petitions. The fact that the
Legislature chose not to impose such a requirement evidences the
Legislature’s intent to defer to PERB’s regulation of such petitions. (Cf. San
Diego County Employees Retirement Assn. v. County of San Diego (2007)
151 Cal.App.4th 1163, 1176 [“Legislature knew how to impose restrictions on
a county’s use of the retroactive benefit, and by not including [such] a rule
. . . , we infer this requirement was not intended”].)
36
Moreover, PERB’s reasoning in 2010 Regents takes into consideration
the rights afforded employees under HEERA. Section 3565 provides
employees with the right to join, or refuse to join, employee organizations.
But this provision, as the University acknowledges, provides employees with
the right to choose whether to be represented by an employee organization.
It does not provide employees with the “right to choose the bargaining unit in
which their classification or position is placed.” (2010 Regents, supra, PERB
Dec. No. 2107-H, p. 24.) Questions concerning representation only arise
“when there is a legitimate doubt about whether the union has majority
support in the bargaining unit.” (Id. at p. 20, fn. 14.) And accreting a
classification of employees that constitutes less than 10 percent of the total
number of employees in the unit would be unlikely to impact the union’s
majority support in the overall bargaining unit.
To the extent unions may seek to take advantage of these provisions
and accrete only small groups of employees, certain statutory safeguards are
provided. For example, PERB Regulation 32786, subdivision (c) authorizes
PERB to “request proof of support . . . among unrepresented employees to be
added to a unit, if classifications found appropriate to be added to the unit do
not include all classifications originally petitioned for.” (Cal. Code Regs.,
tit. 8, § 32786, subd. (c).) This provision provides a statutory framework for
avoiding piecemeal accretion and grants PERB discretion to seek proof of
support if additional classifications are added to a unit modification petition.
Similarly, if a union accretes numerous classifications of under 10 percent
against the employees’ interests, it may find itself subject to a decertification
petition. Section 3576 provides: “A petition may be filed with the board . . .
requesting it to investigate and decide the question of whether the employees
wish to decertify an exclusive representative or to reconsider the
37
appropriateness of a unit.” While these provisions may not be ideal and, in
practice, be difficult to implement, they represent the current legislative
balance between unit structure and employee choice. It is not our role to
rewrite this legislative scheme. (Fair v. Fountain Valley School Dist. (1979)
90 Cal.App.3d 180, 187 [“The role of the courts is not to legislate or to rewrite
the law, but to interpret what is before them.”].)8
The University contends J. R. Norton Co. v. Agricultural Labor
Relations Bd. (1979) 26 Cal.3d 1 (J. R. Norton), prohibits a “blanket rule”
prohibiting PERB from exercising its discretion to require proof of majority
support. In J. R. Norton, the California Supreme Court considered in part
whether the Agricultural Labor Relations Board (ALRB) could impose a
“ ‘make-whole’ remedy” as a matter of course in cases in which an employer
has refused to bargain in order to obtain judicial review. (Id. at pp. 8–9.)
The ALRB argued it could do so, including for technical refusals to bargain,
because employees suffered the same harm as for flagrant or willful refusals
to bargain. (Id. at p. 28.) The employer, however, argued the ALRB lacked
authority to impose such relief in a categorical fashion when the unfair labor
practice arose solely as a result of a technical refusal to bargain. (Id. at
p. 29.)
The California Supreme Court agreed a blanket rule was not
appropriate. (J. R. Norton, supra, 26 Cal.3d at p. 29.) “Doing so ‘eviscerates
8 We further note employers, as well as unions, may engage in such
conduct. In 2010 Regents, supra, PERB Dec. No. 2107-H, for example, UPTE
filed a petition to have case managers moved into certain bargaining units.
While the petition was pending, the University reclassified certain case
managers as administrative nurse III, a classification outside the bargaining
unit at issue. (Id. at p. 16.) In response, UPTE had to file a second amended
petition to include those reclassified employees. (Ibid.)
38
important ALRA[9] policy and fundamentally misconstrues the nature of and
legislative purpose behind such relief.’ ([J. R. Norton,] at p. 29.) Although
‘make-whole relief is appropriate when an employer refuses to bargain for the
purpose of delaying the collective bargaining process,’ [the Supreme Court]
said the Board’s blanket rule ‘place[d] burdensome restraints on those who
legitimately seek judicial resolution of close cases in which a potentially
meritorious claim’ regarding a union election could be made. (Id. at pp. 31–
32.)” (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017)
3 Cal.5th 1161, 1169.) The court concluded automatic imposition of make-
whole relief could not be justified as supporting collective bargaining because
a “central feature” of collective bargaining requires “employees’ free choice in
selecting their bargaining representative,” and such relief would not
guarantee the integrity of representation elections. (J. R. Norton, at p. 35.)
Here, however, the University has not identified a “central feature” of
collective bargaining that would be undermined by prohibiting proof of
majority support for unit modification petitions involving classifications that
amount to less than 10 percent of an established unit. In amending the
regulation, PERB determined 10 percent represented the appropriate balance
between unit determination and employee choice. The University does not
cite any authority challenging the appropriateness of that balance. For
petitions involving less than 10 percent of the established unit, the
University only complains about the potential for piecemeal accretion of
employees. But, as discussed above, the statutory scheme addresses such
concerns by allowing parties to add classifications to a unit modification
petition and by providing a decertification process. Accordingly, the
9Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act
of 1975 (Lab. Code, § 1140 et seq.).
39
University has not identified any potential conflict with a key feature of
collective bargaining as was raised in J. R. Norton.
Finally, the University argues PERB’s interpretation is inconsistent
with the NLRA. The University argues the NLRA, which contains similar
employee choice rights as set forth in HEERA, only allows unrepresented
employees to be accreted into an existing unit when “ ‘the additional
employees have little or no separate group identity . . . and . . . share an
overwhelming community of interest with the preexisting unit . . . .’ ” The
University argues PERB “should be as committed to protecting employee
choice as the NLRB” and should require proof of majority support unless
there is an overwhelming community of interest between the positions to be
accreted and those in the bargaining unit.
The University cites no authority supporting application of NLRB
precedent to issues of accretion, and we are not aware of any. Moreover, the
University’s approach ignores the different approaches taken by PERB and
the NLRB. (See County of Riverside, supra, PERB Dec. No. 2163-M, p. 3
[“PERB does not follow the NLRB’s approach to accretion.”].) While both
PERB and the NLRB are concerned with the balance between employee
rights and unit stability, they employ different approaches to reach that
balance. The Legislature, in enacting HEERA, imposed its own structure,
both through PERB Regulation 32781 and section 3579. To the extent the
NLRB imposes different criteria in its analysis, those criteria are not
relevant for interpreting California law. (Accord Regents of University of
California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 612
[Legislature rejected NLRB precedent by adopting a different definition of
“ ‘employees’ ” in HEERA.].)
40
PERB’s conclusion that it lacked discretion to require proof of majority
support is bolstered by the legislative history and does not violate either
HEERA or the NLRA. Accordingly, we cannot conclude PERB erred in
reaching its conclusion. (See Boling, supra, 5 Cal.5th at p. 912 [“ ‘We follow
PERB’s interpretation unless it is clearly erroneous.’ ”].)
III. DISPOSITION
The petition for writ of extraordinary relief is denied.
41
____________________________
Margulies, J.
We concur:
_____________________________
Humes, P. J.
_____________________________
Sanchez, J.
A157597
Regents of University of California v. Public Employment Relations Board
42
Counsel:
Sloan Sakai Yeung & Wong LLP, Timothy G. Yeung for Petitioner.
J. Felix DeLaTorre, Wendi L. Ross, Joseph W. Eckhart and Kimberly J.
Procida for Respondent.
Leonard Carder, LLP, Arthur Liou and Andrew J. Ziaja for Real Party in
Interest.
43