Palomar Community College District (PERB J014E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PALOMAR COMMUNITY COLLEGE
DISTRICT,
Employer,
and
PALOMAR COLLEGE FACULTY
ASSOCIATION/CCA/CTA/NEA,
Employee Organization.
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) Case No. LA-R-980
Request for Judicial Review
PERB Decision No. 947
PERB Order No. JR-14
September 4, 1992
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Appearances: Littler, Mendelson, Fastiff & Tichy, by Richard J.
Currier, Attorney, for Palomar Community College District;
Rothner, Segall & Bahan, by Glenn Rothner, Attorney, for Palomar
College Faculty Association/CCA/CTA/NEA.
Before Hesse, Chairperson; Caffrey and Carlyle, Members.
DECISION
CAFFREY, Member: This case is before the Public Employment
Relations Board (PERB or Board) on request of the Palomar
Community College District (District) for PERB to join in seeking
judicial review of Palomar Community College District (1992) PERB
Decision No. 947.
In PERB Decision No. 947, the Board adopted as its own
decision the regional director's findings with regard to
formation of a bargaining unit comprised of faculty within the
District. The Board found that many of the District's department
chairpersons and directors are not supervisors and, therefore,
are properly included in the proposed bargaining unit.
DISTRICT'S REQUEST
The District cites five reasons in its request for judicial
review: (1) inclusion of department chairpersons and directors

in the bargaining unit will require the District to "dramatically
change its organization"; (2) the relationship of Educational
Employment Relations Act (EERA) section 3540.l(m)1 and Education
Code section 87610.l(e),2 interpreted in PERB Decision No. 947,
will impact all community college districts; (3) the issue of
is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. EERA section 3540.l(m) states:
"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 functions, the
exercise of that authority is not of a merely
routine or clerical nature, but requires the
use of independent judgment.
2 Education Code section 87610.l(e) states:
Any employees who are primarily engaged in
faculty or other bargaining unit duties, who
perform "supervisory" or "management" duties
incidental to their performance of primary
professional duties shall not be deemed
supervisory or managerial employees as those
terms are defined in Section 3540.1 of the
Government Code, because of those duties.
These duties include, but are not limited to,
serving on hiring, selection, promotion,
evaluation, budget development, and
affirmative action committees, and making
effective recommendations in connection with
these activities. These employees whose
duties are substantially similar to those of
their fellow bargaining unit members shall
not be considered supervisory or management
employees.

whether department chairpersons and directors should be excluded
from the bargaining unit because of their supervision of
classified employees merits judicial review; (4) whether
department chairpersons and directors serve as supervisors of
adjunct faculty merits judicial review; and (5) whether
department chairpersons and directors are members of the
bargaining unit also merits judicial review.
DISCUSSION
EERA section 3542(a) describes the right to judicial review.
It states, in pertinent part:
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.
It is within the Board's sole discretion to determine
whether a case is "one of special importance." PERB
Regulation 32500(c)3 states:
The Board may join in a request for judicial
review or may decline to join, at its
discretion.
The Board has applied a relatively strict standard in
reviewing requests for judicial review and evaluating whether
cases are "of special importance." The Board has not agreed that
3PERB Regulations are codified at California Code of
Regulations, title 8, section 31001 et seq.

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 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. The Board has further 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.
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
statutory provision unique to EERA; and (3) was likely to arise
frequently." Los Angeles Unified School District (1985) PERB
Order No. JR-13.
The District has failed to meet this standard in its request
for judicial review of PERB Decision No. 947.
The issue of whether department chairpersons and directors
should be included in a bargaining unit is not novel. It
involves the application of the relevant code sections to the
factual circumstances present, and has been considered by the
Board on several occasions as cited in PERB Decision No. 947.
Similarly, the decision in this case turns on the factual

evidence concerning the duties and responsibilities of the
department chairpersons and directors, rather than primarily
involving the interpretation of a provision of EERA. The impact
of the Board decision on District operations, and the
relationship of department chairpersons and directors to
classified employees and/or adjunct faculty in the District are
important issues with regard to the operation of the District.
They are not, however, issues of special importance within the
meaning of EERA section 3542(a). Essentially, the District's
arguments in these areas address issues of fact and factual
interpretation upon which PERB Decision No. 947 is based. They
do not meet the standard necessary to justify approval of the
request for judicial review.
The interpretation of Education Code section 87610.l(e)
included in PERB Decision No. 947 also does not present an issue
of special importance justifying judicial review. The Board
utilized its construction of the Ralph C. Dills Act
section 3513(g),4 which contains language similar to Education
4Ralph C. Dills Act is codified at Government Code section
3512 et seq. Section 3513(g) states:
"Supervisory employee" means 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,

Code section 87610.l(e) in interpreting that section and its
relation to EERA section 3540.l(m). The mere fact that the Board
has not previously interpreted this section does not justify a
request for judicial review. To conclude otherwise would be to
strip the Board of its status as the expert administrative agency
in representation issues.
Finally, the role of the concept of collegiality in
determining whether department chairpersons and directors are
supervisory employees is not of special importance. It
represents one of the considerations in what is essentially a
fact-based determination of the supervisory or non-supervisory
status of the District's department chairpersons and directors in
this case.
ORDER
Based upon the foregoing reasons, it is hereby ORDERED that
the request for judicial review of Palomar Community College
District (1992) PERB Decision No. 947 is DENIED. The PERB
regional director is ORDERED to proceed with the election
proceeding consistent with PERB Decision No. 947.
Chairperson Hesse and Member Carlyle joined in this Decision.
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.