The Regents of the University of California and Student Association of Graduate Employees, United Automobile, Aerospace, and Agricultural Implement Workers of America, et al. (PERB J019H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
THE REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Employer,
and
STUDENT ASSOCIATION OF GRADUATE
EMPLOYEES, 	U.A.W., 	UNITED
AUTOMOBILE, 	AEROSPACE AND
AGRICULTURAL 	IMPLEMENT WORKERS
OF AMERICA, 	AFL-CIO,
Petitioner.
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) 	Case No. 	SF-RR-813-H
Request 	for Judicial 	Review
PERB Decision No. 	1301-H
PERB Order No. 	JR-19-H
February 9, 	1999
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Appearances: 	Cochran-Bond 	& Connan by Walter Cochran-Bond,
Attorney, 	for The Regents of the University of California;
Schwartz, 	Steinsapir, 	Dohrmann & Sommers by Margo A. 	Feinberg,
Attorney, 	for Student Association of Graduate Employees, 	U.A.W.,
United Automobile, 	Aerospace 	and Agricultural 	Implement Workers
of America, AFL-CIO.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	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 	The Regents 	of 	the
University of 	California 	(1998) 	PERB Decision No. 	1301-H 	(Regents
UCLA). 	In that decision, 	the Board concluded that students
employed as graduate student instructors, 	readers, 	special
readers, 	tutors, 	remedial 	tutors and part-time learning skills
counselors 	at 	the University of 	California Los Angeles 	campus 	are
employees as 	defined in section 3562(f) 	of 	the Higher Education

Employer Relations Act 	(HEERA).1 Accordingly, 	pursuant 	to a
request 	for 	recognition petition 	filed by 	the 	Student Association
of Graduate Employees, 	U.A.W., 	United Automobile, 	Aerospace and
Agricultural 	Implement Workers of America, 	AFL-CIO, 	the Board
determined 	that 	a bargaining unit made up 	of 	those positions 	is
an appropriate bargaining unit, 	and ordered 	that 	a 	representation
election be 	conducted.
DISCUSSION
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
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: 	(l) 	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 	(1985) 	PERB Order No. 	JR-13 at p. 	3; 	Palomar Community
College District 	(1992) 	PERB Order No. 	JR-14 at p. 	4.)
The 	Board 	recently 	considered 	the 	University's 	request 	that
PERB 	join 	in seeking 	judicial 	review of 	the 	Board's 	determination
that 	students 	employed as 	readers, 	tutors and associates at 	the
University's 	San Diego 	campus 	are 	employees 	under HEERA
section 3562 (f). 	(Regents of 	the University of California 	(1998)
PERB Order No. 	JR-18-H 	(Regents UCSD JR).) 	In denying the
University's 	request, 	the Board noted that 	the 	issue of 	the
status 	of 	student 	academic 	employees 	under HEERA section 	3562(f)
is not novel, 	having been dealt with by the appellate courts 	in
Regents 	of 	the University of 	California v. 	Public 	Employment
Relations Bd. 	(1986) 	41 Cal.3d 601 	[224 Cal.Rptr. 	631] 	and

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. 	In Regents UCSD JR. 	the Board considered
the 	University's 	assertion 	that 	judicial 	review would allow 	for
the 	expeditious 	resolution of 	other pending 	request 	for
recognition petitions 	involving 	the 	issue 	of 	the 	status 	under
HEERA of 	student academic 	employees 	of 	the University, 	and
stated:
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. 	[Regents UCSD JR at p. 	7.]
The 	Board 	concluded 	that 	the University had not 	shown 	that 	the
case was 	one 	of 	special 	importance and denied the 	request 	that
PERB 	join 	in 	seeking 	judicial 	review.
In the 	instant 	request, 	the University repeats 	arguments
considered by 	the Board 	in Regents 	UCSD JR. 	The University
asserts 	that 	judicial 	review of 	Regents 	UCLA would obviate 	the
need 	for 	extensive 	PERB hearings 	regarding 	the 	status 	under HEERA
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of 	student 	academic 	employees at 	the 	other 	campuses 	for which
request 	for recognition petitions 	are pending. 	The University
also asserts 	that 	judicial 	review would allow appellate 	court
resolution of 	a 	constitutional 	issue 	PERB 	lacks 	authority 	to
address 	- 	whether HEERA coverage 	of 	certain student 	academic
employees 	intrudes 	on the University's 	control 	over 	its 	core
functions 	in violation of Article 	IX, 	section 9 	of 	the California
Constitution. 	Finally, 	the University points 	out 	that approval
of 	its 	request 	is 	the more expeditious 	of 	the 	two means 	of
obtaining 	judicial 	review described 	in HEERA section 3564(a).
The University's 	request 	does 	not meet 	the Board's 	standard
for granting 	requests 	for judicial 	review. 	The 	fact 	that 	other
request 	for 	recognition petitions 	pending at 	PERB may 	involve 	the
issue 	of 	the 	status under HEERA of 	the University's 	student
academic 	employees 	is 	insufficient 	to 	establish the 	special
importance 	of 	the 	instant 	case 	for the 	reasons 	explained 	in
Regents UCSD JR. 	quoted above. 	Also, 	as 	the Board explained in
Regents 	UCLA. 	PERB has no authority to make 	the 	ruling 	the
University urges 	with 	regard 	to 	the 	constitutional 	issue 	raised
by the University. 	Consequently, 	the Board declines 	to 	conclude
that 	Regents UCLA is 	a case 	of 	special 	importance 	justifying 	PERB
joining 	in seeking 	judicial 	review based on that 	issue. 	Finally,
since 	PERB's 	joining 	in 	seeking 	judicial 	review in all 	cases
would likely result 	in the more 	expeditious 	of 	the 	two means 	of
obtaining 	judicial 	review described 	in HEERA section 3564(a),
that 	fact 	fails 	to demonstrate 	the 	special 	importance of 	this 	case.
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ORDER
The 	request 	that 	the 	Public 	Employment 	Relations 	Board 	join
in seeking 	judicial 	review of 	its 	decision 	in The Regents 	of 	The
University of California 	(1998) 	PERB Decision No. 	1301-H is
hereby DENIED.
Members Dyer and Amador 	joined 	in 	this Decision.