Fairfield-Suisun Unified School District; Sacramento City Unified School District; Los Angeles Community College District (PERB J008E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
FAIRFIELD-SUISUN UNIFIED SCHOOL DISTRICT,
Employer,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES 	ASSOCIATION
AND 	ITS 	SOLANO CHAPTER 1048,
Employee 	Organization,
and
MUTUAL ORGANIZATION OF 	SUPERVISORS,
Employee 	Organization.
)
)
Case No. 	SF-R-548X
PERB Decision No. 	121
PERB Order No. JR-8
June 18, 	1980SACRAMENTO CITY UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES 	ASSOCIATION,
Employee 	Organization,
and
SERVICE 	EMPLOYEES 	INTERNATIONAL UNION,
LOCAL 535,
Employee 	Organization.
Case No. 	S-R-8
PERB Decision No. 	122
LOS 	ANGELES COMMUNITY COLLEGE DISTRICT,
Employer,
and
CLASSIFIED UNION 	OF 	SUPERVISORY
EMPLOYEES, 	LOCAL 699, 	SERVICE EMPLOYEES
INTERNATIONAL UNION, 	AFL-CIO,
Employee 	Organization.
Case No. 	LA-R-809
PERB Decision No. 	123
Before: 	Gluck, Chairperson; Moore and Gonzales, Members.

DECISION 	AND ORDER JOINING 	REQUEST
FOR JUDICIAL 	REVIEW
Because 	the 	above-captioned 	cases 	involve 	the 	same 	issue,
they 	have 	been 	consolidated 	for 	the 	purpose of 	this 	order.
The 	Public 	Employment Relations 	Board 	(hereafter 	Board)
finds 	that 	these 	are 	cases of 	special 	importance 	within 	the
meaning of 	section 	3542(a) 	of 	the Educational Employment
Relations 	Act.1 The 	cases 	raise 	the 	significant 	and 	novel
issue of 	what 	constitutes 	the 	"same 	employee 	organization"
under 	section 3545(b)(2), 	which prohibits a negotiating unit of
supervisory 	employees 	from being 	represented 	by 	the 	same
employee 	organization 	as 	employees 	whom 	the 	supervisory
1The 	Educational Employment Relations Act 	is 	codified 	at
Government Code 	section 3540 et 	seq. 	Unless otherwise
indicated, 	all 	statutory 	references 	hereafter 	are 	to 	the
Government Code.
Section 3542(a) 	provides:
(a) 	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. 	A board order
directing 	an 	election 	shall 	not 	be 	stayed
pending 	judicial 	review.
Upon 	receipt of 	a 	board 	order 	joining 	in
the 	request for 	judicial 	review, 	a party 	to
the 	case may petition 	for 	a writ of
extraordinary 	relief 	from 	the 	unit
determination decision or 	order.

employees 	supervise.2 This 	issue, 	which 	is primarily one 	of
statutory 	interpretation, 	is 	likely 	to 	arise 	frequently as more
supervisory 	units 	are 	organized.
In 	addition, 	there 	is 	no alternative method 	by which
California 	School Employees Association 	can 	obtain 	judicial
review of 	the Board's 	decisions 	in Fairfield-Suisun Unified
School District 	(3/25/80) 	PERB Decision No. 	121 and Sacramento
City Unified School District 	(3/25/80) 	PERB Decision No. 	122,
both of 	which 	cases may have 	a major 	impact on 	the
Association's ability to organize supervisory units.3
ORDER
1. 	The 	request of 	California 	School Employees Association
that 	the 	Public 	Employment 	Relations 	Board 	join California
School 	Employees Association's 	request 	for 	judicial 	review of
Fairfield-Suisun Unified 	School 	District 	(3/25/80) 	PERB
Decision No. 	121 	and 	Sacramento City Unified 	School 	District
(3/25/80) 	PERB Decision No. 	122 	is granted.
2Section 3545(b)(2) 	provides:
(b) 	In all cases:
(2) 	A negotiating 	unit of 	supervisory
employees 	shall 	not 	be 	appropriate
unless 	it 	includes 	all 	supervisory
employees 	employed 	by 	the 	district 	and
shall 	not 	be 	represented 	by 	the 	same
employee 	organization 	as 	employees 	whom
the 	supervisory 	employees 	supervise.
3Chairperson 	Gluck 	did not 	participate 	in 	PERB 	Decision
No. 	121. 	Because Members Moore and Gonzales 	disagree on
granting the Request 	for Judicial Review, 	he has 	participated
in the instant matter.

2. 	The 	request 	of 	the 	Los 	Angeles 	Community 	College
District 	that 	the 	Public 	Employment 	Relations 	Board 	join 	the
Los 	Angeles 	Community 	College 	District's 	request 	for 	judicial
review 	in Los 	Angeles 	Community College 	District 	(3/25/80) 	PERB
Decision No. 	123 	is granted.
By: 	Raymond J. 	Gonzales, 	Member 	Harry 	Gluck, 	Chairperson
Member Moore's dissent begins 	on page 	5.

Barbara D. Moore, Member, dissenting:
I would not join in the parties' 	requests to seek judicial
review 	in 	these 	three 	cases.1 With 	reference 	to section
3542(a) 	of the Act, my colleagues find that these are cases of
special importance because 	they raise as a "significant and
novel 	issue" the meaning of the phrase "same employee
organization" 	in section 3545(b)(2) 	of the EERA. 	They also
state that 	"[t]his issue, which is primarily one of statutory
interpretation, 	is likely to arise frequently as more
supervisory units are organized" 	(Ante, p. 3).
I agree with 	the majority that these cases primarily
involve statutory interpretation. 	Indeed, PERB is charged with
the 	responsibility of 	interpreting 	the EERA when such questions
are raised by the facts 	in any specific case. 	As discussed
more fully infra, 	however, 	this Board has completed that task,
and 	I am unable to agree that 	the 	likelihood 	that such cases
1The 	majority states 	that CSEA has no way to obtain
review 	in Sacramento City and Fairfield-Suisun and 	that
therefore PERB should join CSEA's requests 	in those cases as
well as Los Angeles. 	I see no merit to the claim that each
case must be reviewed by the courts or the 	implied assertion
that review in the Los Angeles case will not 	resolve the
issues. 	Whether 	review is obtained through the unfair practice
route or via the majority's decision to join in the request 	in
Los Angeles, 	the central issue is the standard for determining
"sameness." 	Surely each application of a standard to different
factual settings does not constitute a "novel" 	issue warranting
judicial review.

will 	arise 	with 	frequency 	is 	a basis 	for 	concluding 	that 	the
instant 	cases 	are of 	"special 	importance." 	If, 	as 	the majority
suggests, 	more 	supervisory units 	are 	in 	fact organized, 	this
Board 	will 	render 	further 	interpretations 	of 	the 	statute 	as
necessitated 	by 	the 	emergence 	of 	specific 	facts 	not 	evident 	in
or 	raised 	by 	the 	underlying 	cases. 	Statutory 	interpretation 	is
an ongoing 	process. 	By 	acquiescing 	to 	judicial 	review, 	we 	do
not, 	nor 	should we, 	avoid 	those demands 	for 	elucidation 	and
clarification 	when 	future 	cases 	presenting 	novel 	and 	unique
factual circumstances 	emerge 	and 	are 	brought 	before 	the Board.
The 	judicial review provision of EERA, 	sec. 	3542(a),
follows 	the 	recommendations 	of 	the 	Aaron Commission 	(hereafter
Commission) 	(See Final 	Report 	of 	the Assembly Advisory Council
on Public Employee Relations 	(1973) 	at pp. 	55-58.) 	The
Commission 	noted 	that "[t]o 	allow either 	party 	in 	a 	unit
determination dispute 	the 	right 	of 	immediate 	court 	review 	in
any 	such 	case 	would 	effectively 	paralyze 	the 	work 	of 	the Board
and 	frustrate 	the purposes of 	the 	statute." 	Conversely, 	it
noted 	that "[u]nit 	determination 	frequently decides 	whether 	any
employee 	organization, 	or 	which of 	two or 	more 	competing
employee 	organizations, 	will be certified 	as 	the 	exclusive
bargaining 	representative." 	To 	resolve 	these 	competing
concerns, 	the Commission 	recommended 	that 	the 	statute provide
that PERB 	"be permitted 	to 	associate 	itself with 	[appeals] 	in
cases which 	it 	feels 	to 	be of 	special 	importance." 	This

approach leaves exclusively to the Board 	the decision of
whether 	a case 	is of such special importance.
We 	should exercise our discretion mindful of the
Commission's stricture that 	in the 	interest of fairness, 	PERB
"ought to welcome judicial review of 	the most 	important of 	such
determinations for 	its own future guidance as well as that of
the parties." 	But we should also be mindful that, in entrusting
us with this broad discretion, 	the Legislature 	intended a
narrow scope of judicial review in unit determination cases.
The parties and my colleagues assert that 	these cases
warrant 	judicial 	review because 	the specific provisions 	in
section 3545(b)(2) 	are unique to EERA, 	and therefore PERB has
no judicial precedent nor 	guidance 	from federal or 	other 	state
law. 	There 	is some merit to their argument. 	But judicial
review must be balanced 	against 	the charge of 	this Board 	to
interpret EERA, 	and not only those portions where there 	is
precedent, 	and the delay which will unavoidably result 	from
recourse to the courts. 	I would strike that balance on the
side of not joining the parties' 	requests. 	As I noted in
Sacramento City Unified School District 	(3/25/80) 	PERB Decision
No. 	122, 	there are numerous statutes restricting the
representation and negotiating 	rights of supervisors. 	While
the exact language 	in EERA is not present in any of those
statutes, 	there has been substantial discussion of the issue of

negotiating 	and 	representation rights 	for 	supervisors both 	in
the public sector and 	in the private sector.
This Board 	has 	set 	forth a 	standard 	for 	determining when
two employee organizations are 	the 	same employee organization
for purposes of section 3542(b)(2). 	It is based on the Board's
view of the purposes of separating representation of
supervisors 	from rank 	and 	file employees which 	is grounded 	in
the history and nature of labor 	relations.
PERB is 	an administrative agency with labor 	relations
expertise. 	The 	interpretation of section 3545(b)(2) 	involves a
labor 	relations 	issue. 	This 	is the Board's field of expertise,
and we 	should closely guard our 	jurisdiction. 	These are not
cases 	involving 	interaction of EERA with other 	statutes 	where
there might be more of an argument that court review is
warranted.
As 	former 	member Cossack Twohey stated 	in Grossmont Union
High School District, 	(7/25/77) 	EERB Order No. JR-2:
A primary purpose of administrative agencies 	is 	to
provide a method 	for 	adjudicating 	and 	resolving
disputes without resort 	to the already crowded
courts. 	This Board 	is expected to make difficult and
precedential decisions 	to facilitate an orderly and
efficient 	system of public 	school employer-employee
relations. 	If every major unit decision is certified
for judicial review, we will become merely an
additional level of bureaucracy which must be gotten
through prior 	to inevitable resort to the courts.
In this case, 	the parties had a hearing and a decision.
They then had 	full review by the Board 	itself. 	Representation

is 	now going 	to be further 	delayed while 	these cases work 	their
way 	through 	the 	judicial system. 	Employees who long 	ago should
have been able 	to exercise 	their 	rights 	under EERA will be
delayed 	still 	longer. 	At 	some 	reasonable point 	the process
should 	end. 	The parties here have had 	ample opportunity to
argue 	their points, 	and 	they have 	received a fair 	hearing—two
in fact. 	I do not believe they need a third. 	I would deny
each of the 	requests 	to join 	in judicial review.
Barbara D. Moore, Member