Regents of the Univ. of Cal. v. Pub. Emp't Relations Bd.

• Citation: 264 Cal.Rptr.3d 830,51 Cal.App.5th 159
• Decision Date: 25 June 2020
• Docket Number: A157597
• Parties: The REGENTS OF the UNIVERSITY OF CALIFORNIA, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; University Professional and Technical Employees, CWA Local 9119, Real Party in Interest.
• Court: California Court of Appeals

51 Cal.App.5th 159

264 Cal.Rptr.3d 830

The REGENTS OF the UNIVERSITY OF CALIFORNIA, Petitioner,

v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent;University Professional and Technical Employees, CWA Local 9119, Real Party in Interest.

A157597

Court of Appeal, First District, Division 1, California.

Filed June 25, 2020

Sloan Sakai Yeung & Wong LLP, Timothy G. Yeung for Petitioner.

J. Felix DeLaTorre, Wendi L. Ross, Sacramento, Joseph W. Eckhart and Kimberly J. Procida for Respondent.

Leonard Carder, LLP, Arthur Liou, Oakland, and Andrew J. Ziaja, San Francisco, for Real Party in Interest.

Margulies, J. 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 "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.

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 "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 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 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...