Regents of the University of California and Association of Student Employees, United Automobile, Aerospace, and Agricultural Implement Workers of America, et al. (PERB J018H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
ASSOCIATION OF STUDENT EMPLOYEES,
U.A.W., 	UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA,
AFL-CIO,
Petitioner.
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) 	Case No. 	SF-RR-805-H
Request 	for Judicial 	Review
PERB Decision No. 	1261-H
PERB Order No. 	JR-18-H
September 	1, 	1998
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Appearances: 	Cochran-Bond 	& Connon by Walter Cochran-Bond,
Attorney, 	for Regents of the University of California; 	Schwartz,
Steinsapir, 	Dohrmann & Sommers by Margo A. 	Feinberg, 	Attorney,
for Association of Student Employees, 	U.A.W., 	United Automobile,
Aerospace and Agricultural 	Implement Workers 	of America, 	AFL-CIO.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on a 	request by the
Regents 	of 	the University of 	California 	(University) 	that 	the
Board join 	in a 	request 	for judicial 	review of 	Regents 	of 	the
University of California 	(1998) 	PERB Decision No. 	1261-H
(Regents). 	In that decision, 	the Board determined that 	students
employed as 	readers, 	tutors and associates at 	the University of
California 	San Diego 	campus 	are 	employees 	as 	defined 	in

section 3562 (f) 	of 	the Higher Education Employer Relations Act
(HEERA).1 Accordingly, 	the Board 	found 	that 	the 	request 	for
recognition petition 	filed by 	the Association 	of 	Student
Employees, 	U.A.W., 	United Automobile, 	Aerospace and Agricultural
Implement Workers 	of America, 	AFL-CIO 	(ASE) 	described an
appropriate 	bargaining unit, 	and ordered 	that 	a 	representation
election be 	conducted.
BACKGROUND
HEERA describes 	the 	circumstances 	under which a party may
obtain judicial 	review of 	a unit 	determination. 	HEERA
section 3564(a) 	states:
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
1HEERA is 	codified at 	Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3562(f) 	states:
"Employee" 	or 	"higher education employee"
means 	any employee 	of 	the Regents 	of 	the
University of California, 	the Directors 	of
Hastings College of 	the Law, 	or the Board of
Trustees 	of 	the 	California State University,
whose 	employment 	is 	principally within the
State of California. 	However, 	managerial,
and 	confidential 	employees 	shall 	be 	excluded
from coverage under this 	chapter. 	The board
may 	find 	student 	employees 	whose 	employment
is 	contingent 	on 	their status 	as 	students 	are
employees 	only if 	the 	services 	they provide
are 	unrelated 	to 	their 	educational
objectives, 	or, 	that those educational
objectives 	are 	subordinate 	to 	the 	services
they perform and 	that 	coverage 	under 	this
chapter would 	further 	the purposes 	of 	this
chapter.

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.
PERB Regulation 325002 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.
(c) 	The Board may join in a request 	for
judicial 	review or may decline 	to join, 	at
its discretion.
The 	Board has 	applied a 	strict 	standard 	in 	reviewing
requests 	for 	judicial 	review and evaluating whether 	cases 	are 	"of
special 	importance" 	because 	the 	fundamental 	rights 	of 	employees
to 	form, 	join and participate 	in the activities 	of 	employee
organizations 	(HEERA sec. 	3565) 	could be 	jeopardized if 	PERB's
unit 	determinations were 	routinely subject 	to 	legal 	challenges.
The Board has 	not 	agreed that 	the mere 	fact 	that 	a 	court 	has 	not
ruled on an issue meets 	the 	"special 	importance" 	test, 	stating
that 	"such would be 	an abdication of 	our 	responsibility 	to
interpret 	the 	statute which we 	enforce 	and would 	tend to 	render
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.

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 at p. 	5.) 	The Board
has 	noted 	that 	its 	"considerable 	discretion 	in 	the 	determination
of 	appropriate units 	is 	demonstrated by 	the very 	limited
circumstances 	under which 	judicial 	review of 	its 	unit 	decisions
may be 	obtained." 	(San Diego Unified School District 	(1981) 	PERB
Order No. 	JR-10 at p. 	4.)
Where a 	request 	for 	judicial 	review has been granted, 	the
issue was 	found to be of 	special 	importance because: 	(1) 	it was
a novel 	issue; 	(2) 	primarily involving construction of 	a unique
statutory provision; 	and 	(3) 	was 	likely to arise 	frequently.
(Los 	Angeles 	Unified 	School 	District/Lynwood Unified 	School
District 	(19 85) 	PERB Order No. 	JR-13 at p. 	3; 	Palomar Community
College District 	(1992) 	PERB Order No. 	JR-14 at p. 	4.)
THE 	UNIVERSITY'S 	REQUEST
The University argues 	that 	Regents 	is 	a case 	of 	special
importance warranting 	judicial 	review 	for 	several 	reasons.
First, 	the University asserts 	that 	this decision, 	and the
decision 	in a 	similar, 	pending 	case 	involving 	the University of
California Los Angeles 	campus, 	may serve as precedent 	for
resolution 	of 	no 	less 	than 	seven other petitions 	in which 	student
academic 	employees are seeking recognition. 	As 	in Regents, 	the
University's 	response 	in each of 	these 	cases 	includes 	the 	claim
that 	the 	student 	academic 	employees 	included 	in 	the petitioned-
for unit are not 	employees under HEERA section 3562(f). 	The

University argues 	that 	a 	definitive 	judicial 	ruling 	on 	the 	issue
of 	the 	status 	of 	student 	academic 	employees 	is 	necessary to
provide 	guidance 	leading 	to 	the 	efficient 	resolution 	of 	these
other requests. 	Second, 	the University argues 	that 	the 	case 	is
of 	special 	importance because 	it 	is 	inconsistent with a prior
PERB 	decision which was 	affirmed by 	the 	Court 	of Appeals 	in
Association of Graduate 	Student 	Employees v. 	Public 	Employment
Relations Bd. 	(1992) 	6 Cal.App.4th 1133 	[8 Cal.Rptr.2d 275] 	rev.
den. August 13, 	1992 	(AGSE). 	Third, 	the case is of special
importance because 	it 	raises 	the 	issue of:
. 	. 	. 	whether HEERA, 	to the extent that it
applies 	to 	the 	student academic 	employees 	in
the proposed units, 	unconstitutionally
intrudes 	on 	the University's 	exclusive
control 	over its 	core 	functions 	in violation
of article IX, 	section 9 	of 	the California
Constitution.
The 	University asserts 	that 	only judicial 	review can 	resolve 	this
issue.
In addition to the 	request 	for judicial 	review, 	the
University 	requests 	that 	the 	Board withdraw the 	election order 	it
issued as part 	of 	its 	decision 	in Regents. 	The University argues
that:
. 	. 	. 	the statutory purpose of developing
'harmonious and cooperative' 	relationships
between 	the 	University and 	its 	student
academic 	employees 	will 	be 	furthered by an
orderly, 	final 	resolution of 	the 	threshold
issues 	that will 	be 	the 	subject 	of 	appellate
review before 	creating 	potentially
unrealistic 	expectations 	among unit members.

ASE'S 	RESPONSE
ASE 	opposes 	the University's 	request, 	noting 	the public
policy 	considerations 	and 	legal 	precedent 	supporting 	the
principle 	that 	PERB's 	representation 	decisions 	should be 	shielded
from court 	challenge. 	ASE asserts 	that 	the 	issue 	raised 	in
Regents, 	the 	status 	of 	student academic employees under HEERA
section 3562 (f), 	has been presented to the appellate courts
previously and 	is 	not 	novel. 	With regard to the University's
reference to Article 	IX, 	section 9 	of 	the California
Constitution, 	ASE notes 	that 	the University did not previously
present 	that argument, 	and 	"thus, 	such an argument 	cannot now
serve 	as 	a basis 	for granting 	judicial 	review in the 	instant
case."
DISCUSSION
PERB 	is 	the expert, 	administrative agency established to
administer the HEERA. 	The 	first of 	the Board's 	rights, 	powers,
duties 	and 	responsibilities 	enumerated 	in HEERA section 	3563 	is
"To determine 	in disputed cases, 	or otherwise approve,
appropriate units." 	Accordingly, 	HEERA provides 	that 	the Board's
performance 	of 	this 	duty 	should not 	routinely be 	subjected 	to
judicial 	review. 	It 	is 	for this 	reason that 	the Board must
ensure 	that a 	case 	is 	of 	special 	importance when it 	joins 	in a
request 	for judicial 	review.
The University asserts 	that 	judicial 	review of 	Regents 	is
needed to 	obtain 	the 	court's 	review of 	the 	issue 	of 	the 	status 	of
student academic employees under HEERA section 3562(f), 	and allow

for 	the 	expeditious 	resolution of 	the 	seven pending 	recognition
petitions which 	raise 	that 	same 	issue. 	While 	the 	frequency with
which an 	issue may be 	raised 	is 	one 	element 	of 	the 	Board's
judicial 	review standard, 	frequency alone does 	not 	indicate
special 	importance 	(State 	of 	California 	(Museum of 	Science 	and
Industry) 	(1996) 	PERB Order No. 	JR-17-S at p. 	5 ) , 	particularly
when 	the 	frequency 	results 	from the 	same 	party 	raising 	the 	issue
in numerous 	cases. 	In fact, 	a representational 	issue which
arises 	frequently may be 	the 	subject 	of 	numerous 	Board and/or
court 	decisions, 	a 	circumstance which would tend to diminish 	the
special 	importance 	of 	a 	subsequent 	case which raises 	that 	issue.
In Unit 	Determination 	for Skilled 	Crafts 	Employees 	of 	the
University of California 	(1983) 	PERB Decision No. 	242a-H, 	the
Board disagreed 	that 	an 	issue 	was 	of 	special 	importance because
it was 	likely to arise 	in other unit 	determination 	cases 	in which
requests 	for 	recognition petitions 	would be 	filed.
As ASE points 	out, 	the 	interpretation of HEERA
section 3562(f) 	with regard to 	the 	status 	of 	student 	academic
employees 	is not a novel 	issue. 	The 	issue has been presented to
and 	dealt 	with by both the 	California 	Supreme 	Court 	in Regents 	of
the University of 	California v. 	Public Employment 	Relations 	Bd.
(1986) 	41 Cal.3d 601 	[224 Cal.Rptr. 	631] 	and the Court of Appeals
in AGSE. 	These decisions provide extensive guidance 	to PERB 	in
the application of 	the test described in HEERA section 3562 (f).
The University disagrees with the 	results 	of 	the Board's
application of 	the HEERA section 3562(f) 	test 	in Regents.

asserting 	that 	it 	is 	inconsistent 	with an 	earlier Board decision.
But mere 	disagreement with the Board's 	exercise 	of 	its
fundamental 	responsibility 	to approve 	appropriate 	units 	does 	not
demonstrate 	that a 	case 	is 	of 	special 	importance.
The 	University's 	request 	for 	judicial 	review stems 	from its
position 	that 	it will 	not 	recognize 	the 	HEERA rights 	of 	the
student 	academic 	employees 	in question until 	it 	obtains 	"a
definitive 	judicial 	ruling" 	indicating that 	it must 	do so. 	The
University asserts 	that 	this 	process 	could be 	"significantly
expedited" 	if 	PERB were 	to 	join 	in seeking judicial 	review of
Regents. 	HEERA section 3564 	envisions 	two methods 	through which
judicial 	review of 	a unit 	determination may be 	obtained: 	through
PERB's 	joining 	in a 	request 	for 	such 	review upon 	finding 	that 	the
case 	is 	of 	special 	importance; 	and through raising the 	issue as a
defense 	to an unfair practice 	complaint. 	Pursuit 	of 	judicial
review of 	a unit 	determination 	through appeal 	of 	a Board decision
in an unfair practice 	case 	is 	likely to be 	the more 	time
consuming of 	the 	two methods provided by HEERA. 	However, 	that
simple 	fact, 	which applies 	to any and all unit 	determinations,
does 	not 	demonstrate 	the 	special 	importance 	of 	this 	case.
With 	regard 	to 	the 	University's 	reference 	to Article 	IX,
section 9 	of 	the California Constitution, 	ASE correctly points
out 	that 	that 	issue 	is not presented in Regents. 	The Board
declines 	to 	reach the determination that 	a 	case 	is 	of 	special
importance based on 	consideration 	of 	an 	issue not 	addressed 	in
that 	case.
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Finally, 	HEERA section 3564(a) 	specifically states 	that 	"a
board 	order directing an 	election 	shall 	not 	be 	stayed pending
judicial 	review." 	The withdrawal 	of 	its 	election order by the
Board would 	constitute a 	circumvention of 	this 	clear 	statutory
directive. 	The Board rejects 	the University's 	request 	that 	it
withdraw the 	election order 	it 	issued 	in Regents.
ORDER
The 	request 	that 	the 	Public 	Employment 	Relations 	Board 	join
in 	seeking 	judicial 	review of 	its 	decision 	in Regents 	of 	the
University of 	California 	(1998) 	PERB Decision No. 	1261-H is
hereby DENIED.
Member Dyer 	joined 	in this 	Decision.
Member Johnson's 	dissent begins 	on page 	10.

JOHNSON, 	Member, 	dissenting: 	I would grant 	the request by
the Regents 	of 	the University of 	California 	(University) 	that 	the
Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	join 	in a
request 	for judicial 	review of 	Regents 	of 	the University of
California 	(1998) 	PERB Decision No. 	1261-H.
After 	reviewing 	the 	University's 	request 	and 	the Association
of Student Employees, 	U.A.W., 	United Automobile, 	Aerospace and
Agricultural 	Implement Workers of America, 	AFL-CIO's response, 	I
conclude 	that 	the 	issue 	is 	one 	of 	special 	importance. 	I 	think it
is 	appropriate 	for 	the Board 	to 	exercise 	its 	discretion and grant
the 	request 	as 	a means 	of 	expediting 	final 	resolution of 	this
very 	important 	case.
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