State of California (Museum of Science and Industry) (PERB J017S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA 	(MUSEUM OF
SCIENCE AND 	INDUSTRY),
Employer,
and
CALIFORNIA UNION OF 	SAFETY
EMPLOYEES,
Exclusive Representative.
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) 	Case No. 	S-UM-578-S
Request 	for Judicial 	Review
PERB Decision No. 	1117-S
PERB Order No. 	JR-17-S
February 23, 	1996
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Appearances: 	State of 	California 	(Department 	of 	Personnel
Administration) 	by Roy J. 	Chastain, 	Labor Relations Counsel, 	for
State of California 	(Museum of Science and Industry); 	James 	P.
Whalen, 	Legal 	Representative, 	for California Union of Safety
Employees.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION
JOHNSON, 	Member: 	This case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on request 	of 	the
State 	of 	California 	(Museum of 	Science and 	Industry) 	(State)
for PERB 	to 	join in seeking 	judicial 	review of 	its 	decision
in State 	of 	California 	(Museum of 	Science and Industry) 	(1995)
PERB Decision No. 	1117-S.
In that 	decision, 	the Board adopted a Board agent's
proposed decision which granted, 	in part, 	the petition for unit
modification 	filed by 	the 	California 	Union 	of 	Safety 	Employees
(CAUSE). 	In its petition, 	CAUSE sought to include within State
Bargaining Unit 	7 	the 	classification of 	Supervising Museum
Security Officer at 	the Museum of 	Science 	and 	Industry. 	The
Board granted 	the 	petition 	for positions 	within 	the

classification serving as 	sergeants/watch commanders, 	and denied
the petition 	for 	the position within 	the 	classification 	serving
as a lieutenant.
STATE'S 	REQUEST 	FOR JUDICIAL 	REVIEW
The 	State 	requests 	judicial 	review of 	State 	of 	California
(Museum of Science and Industry) 	(1995) 	PERB Decision No. 	1117-S
(Museum of Science and Industry) 	pursuant 	to section 3520(a) 	of
the Ralph C. 	Dills Act 	(Dills Act)1 and PERB Regulation 32500.2
1The Dills Act 	is 	codified at Government 	Code 	section 3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to the Government 	Code. 	Dills Act 	section 3520
states, 	in pertinent part:
(a) 	Judicial 	review of a unit determination
shall 	only be allowed: 	(1) 	when the board,
in response 	to a petition 	from the 	state 	or
an 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. 	[Emphasis added.]
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	PERB Regulation
32500 states, 	in pertinent part:
(a) 	Any party to a decision in a
representation 	case 	by 	the 	Board 	itself 	may
file 	a 	request 	to 	seek judicial 	review within
20 	days 	following the date 	of 	service of 	the
decision. 	An original 	and five 	copies 	of 	the
request 	shall 	be 	filed with 	the 	Board 	itself
in 	the headquarters 	office and shall 	include
statements 	setting 	forth 	those 	factors 	upon
which the party asserts 	that 	the 	case 	is 	one
of 	special 	importance. 	Service and proof 	of
service 	of 	the 	request pursuant 	to Section
32140 	are 	required. 	[Emphasis 	added.]
(c) 	The Board may join in a request 	for
judicial 	review or may decline 	to join, 	at
its discretion.

The 	State 	notes 	that 	PERB 	has 	previously joined 	in 	seeking
judicial 	review of 	a decision 	it 	found to be of 	special
importance because 	it was 	a novel 	issue 	involving 	construction
of 	a provision unique 	to 	the Dills Act which was 	likely to arise
frequently. 	(Los Angeles Unified School District 	(1985) 	PERB
Order No. 	JR-13; 	State of California 	(Department 	of 	Personnel
Administration) 	(1993) 	PERB Order No. 	JR-15-S.)
The 	State asserts 	that 	the 	issue presented by Museum of
Science 	and 	Industry 	is 	novel 	because 	Supervising Museum Security
Officers 	are watch 	commanders 	on evening, 	night 	and weekend
shifts, 	and, 	as members of a police organization, 	are assigned
unique 	supervisory responsibilities. 	The 	State argues 	that 	the
case involves 	the construction of Dills Act 	section 3513(g),
which defines 	"supervisory employee," 	and that 	this 	issue has
and will 	continue 	to present 	itself 	to 	PERB 	frequently.
In response, 	CAUSE urges 	the Board to deny the State's
request 	because 	this 	case does 	not present 	a novel 	issue 	or
present 	issues 	of 	special 	importance.
DISCUSSION
It 	is 	within the Board's 	sole discretion to determine
whether a 	case 	is 	"one of 	special 	importance," 	justifying 	its
joining 	in a 	request 	for judicial 	review. 	The Board has 	applied
a 	relatively 	strict 	standard 	in 	considering 	requests 	for 	judicial
review. 	The Board has not agreed that 	the mere 	fact 	that a 	court
has not 	ruled on an issue makes 	it 	one of 	special 	importance,
stating 	that 	"such would be 	an abdication 	of 	our 	responsibility
to 	interpret 	the 	statute which we 	enforce 	and would 	tend 	to
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render 	this 	Board 	simply another administrative 	hurdle 	to 	be
cleared on the way to unit 	certification." 	(Livermore Valley
Joint Unified School District 	(1981) 	PERB Order No. 	JR-9.)
In evaluating a 	request 	for judicial 	review, 	the Board will
find an issue to be of special 	importance 	if: 	(1) 	it 	is a novel
issue; 	(2) 	it primarily involves 	construction of a statutory
provision unique to the Dills Act; 	and 	(3) 	it 	is 	likely to arise
frequently. 	(Los Angeles Unified School District, 	supra. 	PERB
Order No. 	JR-13; 	State of California 	(Department of 	Personnel
Administration, 	supra. 	PERB Order No. 	JR-15-S.)
The 	State 	has 	failed to meet 	this 	standard 	in 	its 	request
for 	judicial 	review of Museum of 	Science 	and 	Industry.
The 	issue 	of 	whether a particular classification meets
the 	statutory definition of 	supervisory employee 	is 	not 	novel.
Rather, 	it 	raises 	the fundamental question of the right 	to
representation which has 	been addressed by 	PERB 	in numerous
cases. 	Similarly, 	the 	fact 	that 	the 	classification and positions
in question 	in 	the 	underlying 	case 	here 	are 	involved 	in 	law
enforcement 	activities 	does 	not make 	this matter novel 	within
the meaning 	of 	the 	Board's 	standard 	for 	considering 	judicial
review requests. 	Virtually every occupational 	area 	considered by
PERB 	in its 	representation decisions, 	including law enforcement,
presents 	some unique 	features and elements. 	PERB's 	evaluation of
these unique 	elements 	in relation 	to 	the 	statutory 	criteria 	for
supervisory employees 	is 	a 	standard 	component 	of 	its 	decision-
making process, 	and is not a novel matter.
The 	State also argues 	that 	the Board's underlying
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decision here 	raises 	statutory 	construction 	issues 	which 	"call
into question the 	interpretation of Dills Act 	section 3513(g)."
This 	argument 	is without merit. 	The Board 	in Museum of 	Science
and 	Industry applied 	the 	criteria 	described 	in Dills 	Act
section 3513(g), 	as it has on numerous occasions. 	It was
the application of 	that 	statutory provision, 	and not 	its
construction, 	which was 	the primary element 	of 	the Board's
decision.
Finally, 	the State asserts 	that 	the 	issue presented 	in the
underlying 	case 	here 	is 	likely to arise 	frequently. 	Although
the 	issue 	of 	whether 	sergeants 	are 	supervisory or non-supervisory
employees may arise again at 	PERB, 	the party seeking 	judicial
review must 	satisfy all 	three prongs 	of 	the 	special 	importance
test, 	which the State has 	failed to do in this 	case.
ORDER
The 	request 	that 	the 	Public 	Employment 	Relations 	Board 	join
in seeking 	judicial 	review of 	its 	decision 	in State 	of 	California
(Museum of Science and Industry) 	(1995) 	PERB Decision No. 	1117-S
is 	hereby DENIED.
Chairman 	Caffrey 	joined 	in 	this 	Decision.3
Member Garcia's 	concurrence and 	dissent 	begins 	on page 	6.
3While 	joining 	in the denial 	of 	this 	request 	Chairman
Caffrey notes 	that 	he 	continues 	to hold 	the views 	expressed
in his 	dissent 	in State 	of 	California 	(Museum of 	Science and
Industry) 	(1995) 	PERB Decision No. 	1117-S.

GARCIA, 	Member, 	concurring and dissenting: 	I 	concur with
the 	lead opinion's 	denial 	of 	the 	request by the State 	of
California 	(Museum of Science and Industry) 	(State) 	for the
Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	to 	join 	in
seeking 	judicial 	review of 	State 	of 	California 	(Museum of 	Science
and Industry) 	(1995) 	PERB Decision No. 	1117-S 	(Museum of Science
and Industry). 	However, 	I dissent 	from the rationale that led
the majority to 	reach this 	conclusion. 	My reasons 	are 	explained
below.
In Museum of 	Science and 	Industry, 	the Board affirmed a
hearing 	officer's 	proposed 	decision 	which 	granted 	the 	California
Union of 	Safety Employees' 	(CAUSE) 	petition for unit
modification, 	adding 	four previously excluded 	employees 	to
Unit 	7. 	The Board found1 that 	those employees, 	who are
Supervising Museum Security Officers 	(SMSO) 	(alternately 	referred
to as watch commanders), 	were non-supervisory.2
The 	State made 	the 	instant 	request 	for judicial 	review of
Museum of 	Science and 	Industry pursuant 	to 	the Ralph C. 	Dills Act
(Dills Act) 	section 3520(a)3 and PERB Regulation 32500.4 The
1Member Caffrey wrote a dissenting opinion, 	stating 	that 	he
would have 	denied 	the 	petition.
2CAUSE petitioned to add five employees 	to Unit 	7. 	However,
the Board 	found that 	one 	of 	the 	five 	(acting as 	lieutenant)
should 	continue 	to be 	excluded 	from the unit because 	he met 	the
statutory definition of 	supervisor.
3Dills Act section 3520(a) 	provides 	that:
(a) 	Judicial 	review of a unit 	determination
shall 	only be allowed: 	(1) 	when the board,
in response 	to a petition 	from the 	state 	or

State argues 	that 	this 	case 	qualifies 	for judicial 	review because
it presents matters 	of 	"special 	importance," 	as discussed in the
lead opinion. 	CAUSE disagrees 	and urges 	the Board to deny the
State's 	request.
an 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. 	[Emphasis added.]
The main 	issue 	in this 	request 	is whether or not 	some
extraordinary 	reason exists 	that 	compels 	the Board 	to 	join 	in a
request 	for judicial 	review. 	The State, 	through Dills Act
section 3520(a) 	which applies 	only to unit 	determination
decisions, 	asks 	the Board to rule upon whether this 	case 	is 	"one
of 	special 	importance," 	so that 	it may seek judicial 	review of
the 	ruling 	in Museum of 	Science 	and 	Industry.
4PERB Regulation 32500 	provides 	that:
(a) 	Any party to a decision 	in a
representation 	case 	by 	the 	Board 	itself 	may
file 	a 	request 	to 	seek 	judicial 	review within
20 	days 	following the date of 	service of 	the
decision. 	An original 	and 	five 	copies 	of 	the
request 	shall 	be 	filed with 	the Board 	itself
in 	the headquarters 	office and shall 	include
statements 	setting 	forth 	those 	factors 	upon
which the party asserts 	that 	the 	case 	is 	one
of 	special 	importance. 	Service and proof 	of
service 	of 	the 	request pursuant 	to Section
32140 	are 	required.
(c) 	The Board may join in a request 	for
judicial 	review or may decline 	to join, 	at
its discretion. 	[Emphasis added.]

Properly classified, 	this petition does not 	follow a unit
determination case and therefore Dills Act 	section 3520(a) 	is not
available 	to the State 	in 	its 	request. 	We are not 	determining
the 	configuration of 	the unit, 	nor have we been asked to modify
the unit. 	The 	case 	came 	to PERB as 	a unit modification petition
because 	PERB directs 	the parties 	to use 	that process when
questions 	of 	supervisory status 	are 	to be determined. 	The 	real
question 	in Museum of 	Science 	and 	Industry was 	whether 	the watch
commanders 	should 	continue 	to be 	excluded 	from the unit 	because
of Dills Act 	section 3513.5 To answer that question, 	the hearing
officer had 	to analyze whether or not 	these 	employees 	are
5In 	order to be 	represented by CAUSE, 	the persons 	in
question must be 	state employees under the Dills Act. 	Section
3513(c) 	defines a 	"state employee" 	as:
. 	. 	. 	any civil service employee of the
state . 	. 	. except managerial employees,
confidential 	employees, 	supervisory employees
[and other listed types of employees] 	. 	. 	.
Dills Act 	section 3513(g) 	defines a 	"supervisory employee"
as:
. 	. 	. 	any individual, 	regardless of the job
description or title, 	having authority, 	in
the interest of the employer, 	to hire,
transfer, 	suspend, 	lay off, 	recall, promote,
discharge, 	assign, 	reward, 	or discipline
other employees, 	or responsibility to direct
them, 	or to adjust their grievances, 	or
effectively to recommend this action, 	if, 	in
connection with the 	foregoing, 	the exercise
of 	this 	authority is 	not 	of a merely routine
or clerical nature, 	but 	requires 	the use of
independent 	judgment. 	Employees whose duties
are 	substantially 	similar 	to 	those 	of 	their
subordinates 	shall 	not be 	considered 	to be
supervisory 	employees.
.
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supervisors. 	If so, 	they cannot be 	in the unit. 	If not, they
are part 	of 	the unit.
The parties 	had previously stipulated, 	and PERB had
accepted, 	that 	the 	SMSO 	classification at 	issue was 	supervisory
(Unit Determination for the State of 	California 	(1980) 	PERB
Decision No. 	ll0c-S). 	In 	considering 	the 	"unit modification
petition" 	in the decision affirmed by the Board, 	the hearing
officer 	applied 	the 	statute 	and prior 	decisions 	and 	concluded
that 	the SMSOs were not 	supervisory. 	Therefore, 	they should not
be 	excluded from the existing unit. 	The analysis 	is
straightforward based 	on 	statutory 	law and 	other unit
modification 	cases 	involving police 	sergeants.6
In essence, 	the State disagrees with the hearing officer's
conclusion, 	affirmed by the Board, 	after applying the Dills Act
criteria of 	section 3513. 	The State has not 	shown why this 	case
warrants 	further consideration or the assistance 	of 	PERB 	if 	it
wishes 	to pursue 	the matter through a 	court appeal. 	If 	the State
believes 	PERB has misinterpreted 	the 	law 	it 	should proceed 	in
other 	forums 	without 	the 	joinder of 	the 	Board rather 	than
creating 	issues 	of 	"special 	importance" 	under non-applicable
statutes.
6See, 	e.g. 	the Board's 	interpretation of the Dills Act's
definition of 	supervisory employee 	in State 	of 	California 	(1990)
PERB Decision No. 	HO-R-125-S.