Advanced Degree Not Required To Qualify As Professional Employee Under HEERA; PERB Lacks Discretion To Require Proof Of Majority Support If The Number Of Employees To Be Added Was Less Than 10 Percent Of Bargaining Unit

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Aug 31, 2020

The University of California had various bargaining units for its employees. The System-wide Technical Unit included nonsupervisory employees who provide technical support services for academic and scientific research throughout the University system. In 2009, the University began an initiative to review and revise job classifications for its unrepresented employees. 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.”

By 2016, twelve University locations implemented the reclassification, which resulted in 325 employees being reclassified as systems administrators.

The University Professional and Technical Employees, CWA Local 9119 filed a unit modification petition to add employees in the systems administrator classifications to the Unit. The Petition alleged UPTE represented approximately 3,900 employees in the Unit, and there were approximately 290 systems administrators. Accordingly, the Petition indicated the size of the Unit would only increase by 7.4 percent, which is below the threshold requiring proof of majority support. PERB did not require UPTE to provide proof of majority support in connection with the petition.

The University filed a response to the Petition and argued the systems administrator classifications were professional classifications and did not share a community of interest with the Unit. Specifically, the University argued the Unit consisted of “technical employees” who were nonprofessionals, whereas the systems administrator classifications were within the University’s “professional” category. The University further argued PERB must require UPTE to demonstrate proof of majority support by the unrepresented systems administrators subject to the unit modification petition.

UPTE filed a reply and argued the University’s classifications were irrelevant, the Higher Education Employee Employer Relations Act provided a statutory definition of “professional” that excluded systems administrators, and the systems administrators shared a community of interest with Unit members. 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.

The supervising regional attorney for PERB issued an order to show cause as to why the Petition should not be granted. PERB first concluded UPTE was not required to provide proof of support because it sought to add less than 10 percent of its bargaining unit. Second, PERB concluded systems administrators did 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 demonstrated such a community.

The University filed a response to the order to show cause. The University argued that once the reclassification was complete at all of its campuses, the total number of employees performing the work of systems administrators would exceed 10% of the total number of employees in the Unit. The University also argued even if systems administrators did not meet the statutory definition of “professional,” they should be recognized as professionals with a distinct community of interest from employees in the Unit. The University argued an “administrative professionals’ unit” would be more appropriate than the Unit. The University further argued 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 Unit.

UPTE filed a reply to the University’s response to the order to show cause. PERB’s supervising regional attorney issued an administrative determination, which affirmed its prior conclusions and granted the unit modification petition. The University appealed, and UPTE filed a response opposing the appeal.

PERB affirmed the administrative determination. PERB concluded the administrative determination reasonably relied on UPTE’s estimate as to number of affected employees, and it did not need an evidentiary hearing. PERB concluded systems administrators shared a community of interest with Unit employees. PERB also concluded employees in the systems administrator classification did not meet the statutory definition for “professional employees” because they were not required to have an advanced degree to perform their job.

In order to seek judicial review of PERB’s decision, the University refused to bargain over the terms and conditions of employment for systems administrators. The UPTE filed an unfair practice charge. PERB concluded the University violated HEERA and ordered the University to cease and desist from refusing to bargain and take certain actions to effectuate HEERA. The University subsequently filed a petition in the Court of Appeal asking it to overturn PERB’s decisions.

The University argued systems administrators should not be included in a unit of technical employees for three reasons: (1) they fell within the definition for “professional” employees under HEERA and should be separate from “nonprofessional” employees; (2) even if they did not meet the “professional” definition under HEERA, they were administrative professionals who should not be included in the same unit as technical employees; and (3) they did not share a community of interest with other Unit classifications.

The Court of Appeal reviewed the definition of “professional employee” found in HEERA. At issue is whether the systems administrator classification meets the fourth requirement in this definition, 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 argued the “professional” definition did not require a specific degree, and PERB erred by not investigating the knowledge and experience possessed by employees in the systems administrator classification.

The Court of Appeal agreed with the University that an advanced degree was required to be classified as a “professional employee.” However, the University did not identify any advanced knowledge nor identify any tasks performed by systems administrators that are based on such advanced knowledge. Rather, the record demonstrated systems administrators applied a similar type of knowledge as utilized by other job classifications in the Unit. In the absence of conflicting evidence, PERB was not obligated to conduct a hearing.

Furthermore, PERB’s finding that a community of interest existed was supported by substantial evidence. The job descriptions reflected a similarity in skills and duties between systems administrators and employees in the Unit. Neither systems administrators nor other Unit classifications required a bachelor’s degree, and systems administrators had identical educational requirements to other classifications in the Unit. The record also indicated at least some systems administrators shared common supervision with Unit employees. As a whole, the Court of Appeal could not conclude PERB abused its discretion when it determined systems administrators could appropriately be included in the Unit. Nor was UPTE required to create a new unit rather than add employees to an existing unit.

The Court of Appeal also concluded PERB properly counted the number of systems administrators at the time UPTE filed the Petition, and PERB’s holding that it lacked discretion to require proof of majority support from UPTE was not clearly erroneous because it was supported by legislative history and did not violate HEERA.

Ultimately, the Court of Appeal denied the University’s request to overturn PERB’s decision.

Regents of Univ. of California v. Pub. Employment Relations Bd. (2020) 51 Cal.App.5th 159.