Redlands Unified School District (PERB 0235EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
In the Matter 	of:
REDLANDS UNIFIED SCHOOL 	DISTRICT,
Employer,
and
REDLANDS 	CLASSIFIED EMPLOYEES
ASSOCIATION, NEA,
Employee Organization,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	AND 	ITS 	REDLANDS
CHAPTER 70,
Employee Organization,
PETITIONER
and
REDLANDS 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Party of 	Interest.
Case Nos. 	LA-R-105
LA-D-88
Request 	for 	Reconsideration
or 	Judicial Review
PERB Decision No. 	235
PERB Decision No. 	235a
November 15, 	1982
Appearances: 	Robert M. 	Dohrmann and Henry M. 	Willis, Attorney
(Schwartz, Steinsapir, Dohrmann, Krepack, Sommers & Edelstein)
for Redlands Classified Employees Association, 	NEA;
Maureen C. 	Whelan, 	Attorney for California School Employees
Association and 	its Redlands Chapter 	70; 	A. Eugene Huguenin, 	Jr.,
Attorney for Redlands Teachers Association, 	CTA/NEA.
Before Tovar, Morgenstern and Jensen, Members.
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DECISION
TOVAR, Member: 	California School Employees Association and
its Redlands Chapter 	70 	(CSEA) 	requests 	that 	the Public
Employment Relations Board 	(PERB 	or Board) 	reconsider 	its
decision 	in Redlands 	Unified School District 	(8/27/82) 	PERB
Decision No. 	235 or, 	in the alternative, 	join in CSEA's request
for 	judicial 	review 	of 	that 	decision.
In Redlands Unified School District, 	supra, 	the Board
affirmed 	the 	hearing 	officer's 	finding 	that 	classroom 	teachers
of 	that 	school district 	are 	not 	"supervisors" 	within 	the
meaning 	of 	subsection 	3540.1(m) 	of 	the Educational Employment
Relations Act 	(EERA)1 and 	on 	that 	basis 	affirmed 	the 	hearing
officer's 	denial 	of 	CSEA's motion 	to dismiss 	the 	petition 	for
decertification 	filed 	by 	the 	Redlands 	Classified 	Employees
Association, 	NEA. 	In the instant 	request for 	reconsideration,
CSEA 	contends 	that 	in 	reaching 	its 	decision PERB 	overlooked
1The 	Educational Employment Relations Act 	is codified at
Government Code section 3540 et seq. 	All statutory references
are 	to the Government Code unless otherwise specified.
Subsection 3540.1(m) 	provides as follows:
(m) 	"Supervisory employee" means any employee,
regardless of 	job description, 	having authority in the
interest of the employer to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward,
or discipline other employees, or the responsibility
to assign work to and direct them, or 	to adjust their
grievances, or effectively recommend such action, 	if,
in 	connection 	with 	the 	foregoing,
exercise of 	such authority is not of 	a merely routine
or clerical nature, 	but requires the use of
independent judgement.
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certain 	indicia of 	supervisory status present 	in the 	record.
It 	asserts 	that PERB 	based 	its 	determination 	that 	teachers 	are
not 	the 	supervisors 	of 	teachers' 	aides 	on the misperception
that 	teachers 	direct 	the work 	activities of 	aides 	but 	otherwise
exercise 	no 	supervisory function. 	This 	contention
mischaracterizes 	the 	decision of 	the 	hearing officer, 	which was
adopted 	by 	the 	Board. 	The 	hearing 	officer 	acknowledged 	that
the 	teachers 	assign 	and direct 	the work of 	aides, 	have 	some
input 	into 	hiring 	and 	retention, 	and 	otherwise 	" . . . 	exercise
some 	of 	the 	enumerated 	powers 	[set 	forth 	at EERA 	subsection
3540.1(m)]." 	(Proposed Decision, p. 	10.) 	Nonetheless, 	the
hearing officer 	(and, 	by adoption, 	the Board) 	found that such
authority was 	exercised 	incidentally 	to 	the 	performance 	of
teachers' 	professional duties, 	and not as agents of 	the
employer. 	Thus, 	as a matter 	of 	law, 	we held teachers 	not 	to be
supervisors of 	the 	aides, 	based 	upon our 	review 	and 	endorsement
of 	a well-established 	line 	of 	cases 	decided 	by 	the National
Labor Relations Board. 	See, 	e.g., Mt. 	Airy Psychiatric Center
(1981) 	253 NLRB 1003 	[106 LRRM 1071]; 	Trustees of Noble
Hospital 	(1975) 	218 NLRB 1441 	[89 LRRM 1806]; Neighborhood
Legal Services 	(1978) 	236 NLRB 1269 	[98 LRRM 1414]; 	Redlands
Christian Migrant Association 	(1980) 	250 NLRB 	134
[104 	LRRM 1546].
By 	its 	request 	for 	reconsideration, 	CSEA asks 	the Board 	to
re-examine 	the 	above 	rationale. 	Such a 	purpose 	is 	not
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contemplated 	by 	section 	32410(a) 	of 	PERB's 	regulations,2
which 	requires 	that 	a 	request 	for 	reconsideration 	be 	supported
by 	a 	showing 	of 	extraordinary circumstances. 	We 	therefore 	deny
CSEA's 	request for 	reconsideration.
CSEA contends 	that, 	if PERB does 	not 	grant 	the 	request 	for
reconsideration, 	PERB should 	join in CSEA's 	request 	for
judicial review. 	As grounds 	for 	this 	request, 	CSEA asserts
that 	the 	issue 	as 	to whether 	teachers 	supervise 	aides 	within
the meaning of EERA 	is one of 	first 	impression, 	and 	thus 	that
judicial 	interpretation 	is 	needed. 	As 	the 	agency 	charged 	with
bringing 	specialized 	expertise 	to 	the 	field of 	public
employment 	relations, 	PERB need 	not 	defer 	to the 	courts 	each
time 	a new question arises. 	If 	such were 	the 	case, 	PERB
rulings 	on 	representation matters 	would 	be merely 	intermediary
hurdles 	on 	the 	road 	to final 	resolution. 	Surely this 	is 	not
what 	the
2pERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 	8, 	section 31000 et seq.
Subsection 32410(a) 	provides:
(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
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.
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Legislature 	had 	in mind 	when 	it 	created 	this 	agency. 	Further,
the 	fact 	that 	the 	rule established 	is 	one 	of 	general
application 	does 	not 	constitute 	a 	special 	circumstance
mandating 	judicial 	review. 	For 	these 	reasons, 	we deny CSEA's
alternative 	request 	to 	join 	in 	seeking 	judicial 	review.
ORDER
For 	the 	foregoing 	reasons, 	the 	request of 	the California
School Employees Association 	and 	its 	Redlands 	Chapter 	70 	that
the 	Public Employment Relations Board 	reconsider 	its Decision
in Redlands Unified School District, 	PERB Decision No. 	235 or,
in the alternative, 	join in CSEA's 	request for 	judicial 	review,
is DENIED.
Members 	Morgenstern 	and Jensen 	concur.
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