Livermore Valley Joint Unified School District (PERB J009E)

STATE OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LIVERMORE VALLEY JOINT 	UNIFIED
SCHOOL 	DISTRICT,
Employer,
PETITIONER,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER 	334,
Employee 	Organization,
PETITIONER,
and
UNITED PUBLIC EMPLOYEES, 	LOCAL 	390,
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, AFL-CIO,
Employee 	Organization.
Case No. 	SF-R-28X
PERB Decision No. 	165
PERB Order No. 	JR-9
October 21, 	1981
Appearances: 	Jon A. 	Hudak, Attorney 	(Breon, Galgani 	& Godino)
for 	Livermore Valley Joint 	Unified 	School 	District;
Maureen C. 	Whelan, 	Attorney 	for 	California School Employees
Association and 	its Chapter 	334; 	W. 	Daniel Boone, 	Attorney
(Van Bourg, Allen, Weinberg 	& Roger) 	for United Public
Employees, 	Local 390, 	Service Employees International Union,
AFL-CIO.
Before Gluck, 	Chairperson; Moore and Tovar, Members.
DECISION AND ORDER DENYING 	REQUESTS 	FOR
RECONSIDERATION 	AND/OR 	JUDICIAL 	REVIEW
The Public Employment Relations Board 	(hereafter Board) ,
having 	duly considered 	the 	Request 	for 	Reconsideration 	and
Request 	for 	Judicial 	Review 	filed 	by Livermore Valley Joint
Unified 	School 	District 	and 	California 	School 	Employees
Association 	and 	its 	Chapter 	334 	(referred 	to 	respectively 	as

District and CSEA, 	and 	jointly as Requestors), 	hereby denies
those 	requests.
Requests 	for 	Judicial Review
In 	keeping 	with 	the 	statutory 	requirements 	for 	judicial
review 	set 	forth 	at Government Code 	section 	35421, 	Requestors
contend 	that 	the 	instant 	case 	is 	one 	of 	"special 	importance"
within 	the meaning 	of 	that 	statute. 	The 	basis 	for 	their
contention is, 	in essence, 	that numerous wall-to-wall units of
classified 	employees 	are 	in place 	throughout 	the 	state 	and
hence 	that 	the 	issues 	raised 	by 	this 	decision will 	recur 	with
frequency. 	CSEA argues 	further 	that 	there 	is presently no
Educational Employment 	Relations Act 	(hereafter
EERA) 	is 	codified 	at Government Code 	section 	3540 	et 	seq. 	All
statutory 	references 	are 	to 	the 	Government Code 	unless
otherwise specified. 	Section 3542 provides, 	in pertinent part:
(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.

clear 	judicial precedent 	as 	to 	the weight 	to 	be 	accorded 	the
role of 	established 	practices 	in 	the 	determination 	of
appropriate 	units 	under 	EERA.
With 	respect 	to Requestors' first 	contention, 	we 	note 	that
we 	explicitly 	considered 	the 	widespread 	nature 	of 	wall-to-wall
classified 	units 	in California 	in our 	underlying 	decision 	and
weighed 	that 	factor 	in 	the 	balance. 	Some or 	all 	of 	the 	issues
raised 	in 	the 	vast 	majority of 	unit 	determination 	cases 	will
recur 	because 	the 	statute prescribes 	factors 	common 	to 	the
inquiry 	in 	all 	such 	cases.2 We 	decline 	to 	conclude 	that 	a
case 	is 	rendered 	of 	"special 	importance" 	solely 	because 	an
issue 	raised 	in 	that 	case 	will 	recur 	with 	frequency.3
With 	respect 	to 	the 	argument 	that 	the 	case 	requires
judicial 	review because 	of 	the 	lack 	of 	judicial precedent
regarding 	the 	weight 	to 	be 	accorded 	the 	role 	of 	established
the presence 	of 	the 	factors 	themselves will 	recur,
it 	is 	highly 	unlikely 	due 	to 	the 	factual 	differences 	between
districts, 	that 	the particular 	combination of 	factors 	present
in 	this District will 	recur. 	Unit determinations, 	based 	as
they 	are 	on 	a combination 	and 	interaction of many 	factors, 	are
of 	necessity 	decided on 	a case-by-case 	basis. 	Our 	holding 	in
the 	instant 	case 	should 	not 	be 	interpreted 	to mean 	that 	this
Board 	will 	blithely 	grant 	severance 	requests 	in 	all 	future
cases.
we 	note 	that 	this 	factor 	has 	been 	relied 	upon 	to
some 	extent 	by a majority of 	this Board 	in cases 	where 	the
Board 	has 	joined 	in 	a 	request 	for 	judicial 	review, 	this 	factor
alone 	has 	never 	been sufficient. 	See Fairfield-Suisun Unified
School District, 	et al. 	(6/18/80) 	PERB Order No. 	JR-8 and
Grossmont Union High School District 	(7/25/77) 	EERB 	Order
No. JR-2.

practices, 	we 	note 	that 	that 	factor 	was 	also considered 	and
accorded 	due 	weight 	by 	the Board 	in 	reaching 	its 	decision 	in
this case. 	That 	argument might 	be compelling 	if 	this were a
case 	whose 	outcome 	turned 	on 	the 	meaning 	accorded 	unique
statutory 	language.4 However, 	this was 	not 	such 	a case.
Rather, 	the 	inquiry 	engaged 	in 	by 	the Board 	herein 	involved 	the
weighing 	and 	balancing 	of 	the 	multiplicity of 	section 	3545(a)
factors5 in 	light 	of 	the particular 	facts presented 	by 	this
case. 	Rather 	than 	turning on 	statutory 	interpretation, 	this
was 	a 	typical 	unit 	determination 	case. 	It was 	thus precisely
the 	sort 	of 	case 	in which 	the Legislature 	intended 	to 	limit
parties' 	recourse 	to 	judicial 	review.
In light of 	the express language of 	section 3542, 	it would
be 	incongruous 	if 	we were 	to certify a given case 	for 	judicial
4A majority of 	the Board 	was 	persuaded 	by 	such 	an
argument 	in Fairfield-Suisun Unified School District, 	et 	al.,
supra, 	wherein 	the meaning 	attributed 	to 	the phrase 	"same
employee organization" 	in 	section 3542(b)(2) 	was determinative
of 	the 	entire 	case.
5Section 3545(a) 	provides:
In 	each 	case where 	the 	appropriateness 	of
the 	unit 	is an 	issue, 	the 	board 	shall 	decide
the 	question on 	the 	basis 	of 	the 	community
of 	interest 	between 	and 	among 	the 	employees
and 	their 	established 	practices 	including,
among 	other 	things, 	the 	extent 	to which 	such
employees 	belong 	to 	the 	same 	employee
organization, 	and 	the 	effect of 	the 	size of
the 	unit 	on 	the 	efficient 	operation of 	the
school 	district.

review on 	the 	grounds 	that 	the particular 	manner 	in which 	the
Board 	weighed 	and 	balanced 	the 	section 	3545(a) 	unit
determination 	criteria 	in 	that 	case 	had 	not 	been previously
ruled 	upon 	by 	a court. 	Further, 	such would be 	an abdication of
our 	responsibility 	to 	interpret 	the 	statute 	which 	we 	enforce
and 	would 	tend 	to 	render 	this Board 	simply another
administrative 	hurdle 	to 	be cleared 	on 	the way 	to 	unit
certification. 	This 	is 	obviously not 	the way 	the Legislature
intended 	this Board 	to function, 	and we 	decline 	to do 	so.
For 	the 	reasons 	set 	forth 	above, 	we 	decline 	to 	hold 	that
the 	instant decision 	is 	one 	of 	"special 	importance" 	within 	the
meaning 	of 	section 	3542 	and 	hence 	deny 	Requestors' 	requests 	for
judicial 	review.
The 	Requests 	for 	Reconsideration
Requestors 	contend 	that 	the Board 	should 	reconsider 	its
decision 	in 	the 	instant 	case. 	In 	keeping 	with 	the 	requirements
set 	forth 	in 	the Board's Rules 	and Regulations 	at
Administrative Code 	section 	32410,6 we 	note 	that 	the
appropriate 	standard 	is 	"extraordinary circumstances". 	The
regulations 	are 	codified 	at Administrative 	Code
section 	31000 	et 	seq. 	Section 32410 provides, 	in pertinent
part:
(a) 	Any party to a decision of 	the Board
itself may, 	because of 	extraordinary
circumstances, 	file a request 	to reconsider
the 	decision 	with 	the Board 	itself 	within

Board 	has 	determined 	that 	"substantial 	errors 	of 	law or 	fact
constitute 	grounds 	for 	reconsideration." 	Bassett 	Unified
School District 	(3/23/79) 	PERB Order No. 	Ad-62, 	Bassett Unified
School District 	(7/3/79) 	PERB Order No. 	Ad-67. 	Requestors do
not 	contend 	that 	the Board's 	decision 	rests 	on 	a clear 	factual
error 	or 	an 	evident misapplication 	of 	an 	established 	rule 	of
law, 	nor 	do 	they 	argue 	that 	there 	are 	circumstances 	herein
which 	are out of 	the ordinary. 	For 	example, 	requestors 	do not
contend 	that 	newly discovered 	evidence, 	not 	discoverable 	by
them at 	the 	time of the 	hearing, 	changed 	circumstances, 	or
other 	factors 	beyond 	their 	control 	mandate 	reconsideration 	of
this 	case. 	Rather, 	they 	restate 	and 	rephrase 	arguments 	already
raised 	by 	them 	and 	considered 	by 	the Board 	in 	its 	underlying
decision, 	and 	simply disagree 	with 	the Board's 	determination.
We 	find 	that 	Requestors 	have 	failed 	to 	demonstrate 	the
existence 	of 	extraordinary 	circumstances 	which 	would 	warrant
reconsideration. 	We 	thus 	deny 	their 	requests 	for
reconsideration.
10 	days 	following 	the 	date 	of 	service 	of 	the
decision. 	The 	request 	for 	reconsideration
shall 	be 	filed 	with 	the Executive Assistant
to 	the Board 	and 	shall 	state 	with
specificity 	the 	grounds 	claimed 	and, 	where
applicable, 	shall 	specify 	the page of 	the
record 	relied 	on. 	Service 	and proof 	of
service 	of 	the 	request pursuant 	to Section
32140 	are 	required.

O R D E R
1. 	The 	requests 	of 	L i v e r m o r e 	V a l l e y 	Joint 	Unified 	S c h o o l
D i s t r i c t 	and 	C a l i f o r n i a 	S c h o o l 	E m p l o y e e s 	A s s o c i a t i o n 	and 	its
Chapter 	334 	that 	the 	P u b l i c 	E m p l o y m e n t 	Relations 	Board 	join
their 	r e s p e c t i v e 	r e q u e s t s 	for 	j u d i c i a l 	review 	of 	L i v e r m o r e
V a l l e y 	J o i n t 	Unified 	S c h o o l 	D i s t r i c t 	(6/22/81) 	P E R B 	D e c i s i o n
N o . 	165 	are 	d e n i e d .
2. 	The 	requests 	of 	L i v e r m o r e 	V a l l e y 	Joint 	Unified 	S c h o o l
D i s t r i c t 	and 	C a l i f o r n i a 	S c h o o l 	E m p l o y e e s 	A s s o c i a t i o n 	and 	its
Chapter 	334 	that 	the 	P u b l i c 	E m p l o y m e n t 	Relations 	Board 	grant
their 	r e s p e c t i v e 	requests 	for 	r e c o n s i d e r a t i o n 	of 	L i v e r m o r e
V a l l e y 	J o i n t 	U n i f i e d 	S c h o o l 	D i s t r i c t 	(6/22/81) 	PERB 	D e c i s i o n
N o . 	165 	are 	D E N I E D .
B y : 	B a r b a r a 	D . 	M o o r e , 	M e m b e r 	I r e n e 	T o v a r , 	M e m b e r
H a r r y 	G l u c k , 	C h a i r p e r s o n , 	c o n c u r r i n g 	and 	dissenting:
In 	my 	d i s s e n t 	in 	P E R B 	D e c i s i o n 	N o . 	1 6 5 , 	I 	indicated 	my
c o n c e r n 	that 	the 	m a j o r i t y 	had 	m i s a p p l i e d 	the 	so-called
S w e e t w a t e r 	p r e s u m p t i o n , 	e s t a b l i s h e d 	a 	unit 	w i t h o u t 	an 	a d e q u a t e
f a c t u a l 	b a s i s 	as 	required 	by 	s e c t i o n 	3545 	of 	the 	EERA 	and 	had
thereby 	c r e a t e d 	a 	s i t u a t i o n 	p o s i n g 	a 	substantial 	threat 	to 	the
s t a b i l i t y 	of 	e m p l o y e r - e m p l o y e e 	r e l a t i o n s 	represented 	by 	the

wide-spread 	existence 	of 	established wall-to-wall 	bargaining
units.
I 	consider 	these 	factors 	to 	constitute 	the 	"extraordinary
circumstances" 	justifying reconsideration 	under 	rule 	32410.
However, 	in 	its 	current 	decision 	denying 	the Requests 	for
Reconsideration and Judicial Review, 	the majority, 	in 	its
footnote 	2, 	seeks 	to 	allay 	any 	concern 	that 	its 	unit 	determination
presages 	the 	Board's 	future 	course 	of action. 	On 	this basis,
I would 	find 	the 	quality of 	"special 	importance" 	to 	be missing.
Therefore, 	I would grant 	the Requests 	for Reconsideration 	and
deny 	the Requests 	for 	Judicial 	Review.