State of California (Department of Personnel Administration) (PERB J015S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STATE OF CALIFORNIA (DEPARTMENT )
OF PERSONNEL ADMINISTRATION) , )
)

Employer, ) Case No. S-D-131-S
(S-SR-7)
and )
) Request for Judicial Review
CALIFORNIA UNION OF SAFETY ) PERB Order No. Ad-246-S
EMPLOYEES,
PERB Order No. JR-15-S
Exclusive Representative,
August 9, 1993
and .

CALIFORNIA STATE SAFETY EMPLOYEES
COUNCIL/CALIFORNIA STATE PEACE
OFFICERS ASSOCIATION/LABORERS'!
INTERNATIONAL UNION OF NORTH
AMERICA,

Employee Organization.

Appearances: Carroll, Burdick & McDonough by Gary M. Messing,
Attorney, for California Union of Safety Employees; Van Bourg,
Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for
California State Safety Employees Council/California State Peace
Officers Association/Laborers' International Union of North
America.
Before Blair, Chair; Caffrey and Carlyle, Members.
DECISION

CAFFREY, Member: This case is before the Public Employment
Relations Board (PERB or Board) on request of the California
State Safety Employees Council/California State Peace Officers
Association/Laborers' International Union of North America
(CSSEC) for PERB to join in seeking judicial review of its

decision in State of California (Department of Personnel

Administration (1993) PERB Order No. Ad-246-S.

In that decision, the Board determined that the release of
the home addresses of employees in 14 classifications within
State Bargaining Unit 7 would constitute inconsistent and unequal
treatment of those employees and would, therefore, be "likely to
be harmful" to them under the terms of PERB Regulation 32726(b).1
The Board prohibited the release of the home addresses to the
parties in the Unit 7 decertification election.
DISCUSSION
Prior requests for judicial review considered by the Board
have generally involved unit determination issues under the
Educational Employment Relations Act (EERA). EERA
section 3542(a)2 provides that judicial review of a unit
regulations are codified at California Code of
Regulations, title 8, section 31001 et seq. Regulation 32726
states, in pertinent part:
(b) A list of eligible voters which meets
the requirements of subsection (a) above but
which contains in lieu of the home address a
mailing address for each eligible voter shall
be concurrently served by the employer on
each other party to the election. Proof of
service shall be filed with the regional
office. For purposes of this subsection,
mailing address means the home address of
each eligible voter, except in the case where
the release of the home address of the
employee is prohibited by law, or if the
Board shall determine that the release of
home addresses is likely to be harmful to the
employees.
2EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. Section 3542 states, in pertinent part:
(a) No employer or employee organization
shall have the right to judicial review of a
unit determination except: (1) when the

determination by PERB will occur only when the Board "agrees that
the case is one of special importance and joins in the request
for such review." Furthermore, the Legislature has emphasized
the importance of insuring that representation elections are not
delayed by including in EERA section 3542(a) the directive that
an election shall not be stayed even if the Board joins in a
request for judicial review. Consequently, the Board has applied
a relatively strict standard in considering whether cases are of
"special importance" because the fundamental rights of employees
to form, join and participate in the activities of employee
organizations, and of employee organizations to represent their
members in their employment relations cannot be exercised if
PERB's unit determination decisions are routinely subject to
legal challenges and the significant delays in the implementation
of those decisions which may result.
The Board has not agreed that the mere fact that a court has
not ruled on an issue meets the "special importance" standard,
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
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.
(Emphasis added.)

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 instant request for judicial review arises in the
context of a representation election conducted under the Ralph C.
Dills Act (Dills Act). Dills Act section 3520(a),3 governing
judicial review requests, is nearly identical to the
corresponding EERA provision including the "special importance"
standard and the directive that a PERB-conducted representation
3The Dills Act is codified at Government Code section 3512
et seq. Section 3520 states, in pertinent part:
(a) Judicial review of a unit determination
shall only be allowed: (1) when the board,
in response to a petition from the state or
an 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.
(Emphasis added.)

election shall not be stayed pending judicial review. C S S E C s
request that the Board join in seeking judicial review of PERB
Order No. Ad-246-S is made in accordance with PERB
Regulation 32500 which 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 5 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.
(Emphasis added.)
(c) The Board may join in a request for
judicial review or may decline to join, at
its discretion.
This regulation describes the process of seeking judicial
review of a Board decision in a representation case pursuant to
the Dills Act. In considering CSSECs request, the Board must
determine whether the strict standard it has applied in
considering prior judicial review requests involving unit
determinations is appropriately utilized in the current case
involving a representation election.
The considerations which have led the Board to apply a
strict standard in judicial review requests involving unit
determinations are generally present in all representation
cases.4 Just as in these prior cases, the fundamental rights of
4In fact, contrary to the views expressed in the dissent, it
has been the Board's position that the term "unit determination"
in Dills Act section 3520(a) describes all representation
matters, thereby prohibiting judicial review of those matters
unless the Board agrees they are of special importance and joins

employees to select an exclusive representative, and of exclusive
representatives to represent employees in their employment
relations, can be undermined by legal challenges to the Board's
decisions in representation cases which can result in unnecessary
delays in the resolution of the election process. Therefore, it
is appropriate for the Board to apply the same strict standard in
evaluating requests for judicial review in all representation
cases that it has applied in the prior judicial review requests
it has considered.
Accordingly, in this case CSSEC must demonstrate that PERB
Order No. Ad-246-S presents a novel issue, primarily involving
construction of a provision unique to the Dills Act, which is
likely to arise frequently. (Los Angeles Unified School
District, supra. PERB Order No. JR-13.)
CSSEC argues that judicial review is appropriate in this
case because it involves the first opportunity for the Board to
interpret its own regulation concerning nondisclosure of home
addresses to parties to a representation election. Since the
Board's interpretation resulted in the nondisclosure of the home
addresses of employees in 14 classifications within State
Bargaining Unit 7, CSSEC argues that "it is a matter of special
importance and significance" justifying the Board joining in a
request for judicial review. CSSEC also asserts that the Board's
interpretation of its regulation is erroneous because it deviates
in the request for such review, or they are raised as a defense
to an unfair practice complaint.

from the prior interpretation of that regulation by a Board
agent. Finally, CSSEC indicates that the Board's ruling
penalizes CSSEC for its "being cooperative and considerate of the
time and resources of PERB and the other party to this
proceeding" since CSSEC had previously stipulated that the home
addresses of many other unit members would not be released.
C S S E C s arguments fail to meet the Board's standard in
considering requests for judicial review. CSSEC argues that this
case is novel in that it involves the Board's first formal
interpretation of one of its regulations, an interpretation which
resulted in the nondisclosure of some employee home addresses.
But novelty alone does not distinguish a case as one of special
importance (Livermore Valley Joint Unified School District.
supra. PERB Order No. JR-9), and any exercise of the Board's
discretion under PERB Regulation 32726(b) by definition affects
the disclosure of employee home addresses. Furthermore, the
interpretation by the Board of one of its own regulations is at
issue in this case, and not construction of a statutory provision
unique to the Dills Act which the Board might consider
appropriate for judicial review.5 Finally, the issue in this
5The Board's discretion under PERB Regulation 32726(b) is
specifically authorized by the Legislature. Government Code
section 6254.3 states, in pertinent part:
(a) The home addresses and home telephone
numbers of state employees and employees of a
school district or county office of education
shall not be deemed to be public records and
shall not be open to public inspection,
except that disclosure of that information
may be made as follows:

case is not likely to arise frequently since it has never arisen
previously despite the many representation elections conducted by
PERB.
CSSEC has failed to demonstrate that the issue presented by
this case is of special importance justifying the Board joining
in a request for judicial review.
ORDER
The request that the Public Employment Relations Board join
in seeking judicial review of its decision in State of California
(Department of Personnel Administration) (1993) PERB Order
No. Ad-246-S is hereby DENIED.
(3) To an employee organization pursuant to
regulations and decisions of the Public
Employment Relations Board, except that the
home addresses and telephone numbers of
employees performing law enforcement-related
functions shall not be disclosed.
C S S E C s argument that the Board's interpretation of its
regulation is erroneous because it differs from a Board agent's
interpretation simply misunderstands the fundamental authority
and responsibility of the Board vis-a-vis its staff, and is
without merit.
CSSECs concern that it has been penalized for being
cooperative and stipulating to non-release of home addresses for
many Unit 7 classifications ignores the unique circumstances of
this case as the Board stated in PERB Order No. Ad-246-S:
The Board emphasizes, however, that the
finding in this case does not preclude a
different result concerning the release of
the home addresses of employees under other
circumstances. The Board will consider the
circumstances presented in each election
setting on a case-by-case basis.
This statement reflects the Board's intent to judiciously
exercise its discretion in this area.
8

Chair Blair joined in this Decision.

Member Carlyle's dissent begins on page 10,

Carlyle, Member, dissenting: I dissent with the majority-
conclusion to deny the request for judicial review and with its
underlying analysis, both stated and unstated.
The case before us is a representation case which does not
involve an issue of unit determination. It involves a Public
Employment Relations Board (PERB or Board) decision relative to
Government Code section 6254.3 and the release of home addresses
and home telephone numbers of state employees, whether those
employees are performing law enforcement-related functions, and
the factors which go into making such a decision. Accordingly,
the only controlling language on the issue of judicial review,
given the facts of this case, is found in PERB Regulation 32500.1
Since April 29, 1977 to the present, PERB has issued 14
orders (decisions) concerning requests for judicial review
(excluding the present case). A reading of those cases indicates
that every one so previously decided by PERB involved a request
regulations are codified at California Code of
Regulations, title 8, section 31001 et seq. Regulation 32500
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 5 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.
10

for judicial review of a unit determination under the Educational
Employment Relations Act (EERA).2
In my opinion, the standard of proof required under Dills
Act section 3520(a) or EERA section 3542(a) to a request for
judicial review of a unit determination case is different and
higher than the standard of proof required under PERB Regulation
32500 to a request for judicial review in a representation case
which does not involve a unit determination issue.
If an employer under Dills Act section 3520(a) (or a school
district under EERA section 3542(a)) had the right, on its own,
to seek judicial review of every unit determination, the ability
of workers to form, organize and collectively bargain would be
seriously jeopardized if not totally undermined by incessant and
repetitive legal challenges to the composition of such units.
Accordingly, since the power and potential for abuse was so
great, the Legislature put a "gatekeeper" in charge of hopefully
ensuring that such legal actions were permitted only in cases "of
special importance." To put it bluntly, judicial review is
barred under Dills Act section 3520(a) and EERA section 3542(a)
2EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code.
In order not to obfuscate the real issue, I will stipulate
for this case only that the standard applied by PERB in deciding
a request for judicial review of a unit determination is the same
under EERA section 3542(a) and under the Ralph C. Dills Act
(Dills Act) section 3520(a) (the Dills Act is codified at
Government Code section 3512 et seq.).
11

unless PERB joins in the request.3 Naturally, it logically
follows that the Board has applied a relatively strict standard
in considering requests for judicial review in these cases.
But, as previously noted, the instant matter is a request
for judicial review of a representation case solely under PERB
Regulation 32500. A plain and clear reading of said regulation
contains no prohibition to subsequent judicial review, regardless
of PERB's decision on said request. Why is that? A non-unit
determination representation case does not contain the same
elements which would give rise to the potential for abuse noted
previously herein. Accordingly, this case should not be subject
to the same strict standard applied in prior PERB judicial review
determinations even though said regulation has the phrase "of
special importance" because to do so would demonstrate a failure
to understand the reason and rationale, the origins so to speak,
of why there is a bar without PERB approval in unit determination
cases and thus why PERB has applied a stricter standard in those
cases.
Having read the prior 14 judicial review decisions, I am
troubled by the majority's application of the reasoning and
rationale from those decisions involving unit determination
issues to the instant case. For instance, the majority asserts
that relative to PERB Regulation 32500, "[T]he considerations
which have lead the Board to apply a strict standard in judicial
review requests involving unit determinations are generally
3The alternative under section 3520(a) and section 3542(a)
of the issue being "raised as a defense to an unfair practice
complaint" is not relevant to this case or to this argument.
12

present in all representation cases." This is simply not true.
As noted previously, constant legal challenges to the composition
of a unit preclude the affected employees from even getting to
the bargaining table. That is why such challenges are barred
unless PERB joins the request for judicial review in such unit
determination cases.
But in representation cases governed by PERB Regulation
32500, there is no bar to subsequent legal action, regardless of
whether or not PERB joins in the request for judicial review.4
Accordingly, the position of the majority concerning "similar
considerations" is not valid nor is it persuasive.
The majority further asserts that "the fundamental rights of
employees to select an exclusive representative, and of exclusive
representatives to represent employees in their employment
relations, can be undermined by legal challenges to the Board's
decisions in representation cases which can result in unnecessary
delays in the resolution of the election process. Therefore, it
is appropriate for the Board to apply the same strict standard in
evaluating requests for judicial review in all representation
4Notwithstanding the majority's assertion (stated or
implied) in its footnote 4 to the contrary, the Board has never
denied a request for judicial review of a non-unit determination
case under PERB Regulation 32500 and then argued that said denial
was a bar to subsequent court action or review. For the majority
to argue on the one hand that the fundamental rights involved in
representation cases are of paramount importance but to then
argue on the other hand that court review of a lay Board decision
adversely affecting those fundamental rights is barred even
though there is no express statutory language to support that
position (by defining "unit determination" in Dills Act section
3520(a) to mean all representation matters, thus clearly
attempting to invoke the same bar found in statute to PERB
Regulation 32500), does not appear to assist the majority in its
position and should lead one to the opposite conclusion.
13

cases that it has applied in the prior judicial review requests
it has considered."
While the language sounds nice, the problem is that it "does
not square with reality." Again, there is no bar to subsequent
"legal challenges" under PERB Regulation 32500 if the Board
denies a request for judicial review. Further, such a legal
challenge does not stay an election, absent an additional court
order. Thus, the election proceeds and any such challenge is
ruled on in due course by the courts without inappropriately
delaying the labor relations representation process. I can find
no compelling reason or rationale to blindly apply a legitimate
strict standard of proof culminating in a three-part test to
prevent abuse in unit determination cases to the instant matter.
I am therefore forced to reluctantly conclude that the
analysis of the majority represents an unsuccessful attempt to
take specific words and thoughts from the past and transplant
them to the present. And like the movie "Jurassic Park," this is
another instance of a similar experiment which has gone bad.
While a burden of proof still exists and must be met by the
party requesting judicial review of a representation case under
PERB Regulation 32500, it is my considered opinion that the
California State Safety Employees Council/California State Peace
Officers Association/Laborers' International Union of North
America (CSSEC) has made a proper and sufficient presentation
to warrant a showing "of special importance" in this matter.
It is further noted for the record that the instant case has
been before the Board on more than one occasion, and the
14

particular issue now before us was in part present and ruled upon
in other prior Board actions. The history of the parties and
this case, which was part of the rationale in my concurrence to
PERB Order No. Ad-246-S, has had more twists and turns than the
Mississippi River, even given its current swollen condition, thus
providing additional support for meeting the standard "of special
importance" in the case at bar.
Accordingly, based upon the above, I would join the request
for judicial review made by CSSEC in this non-unit determination
representation case.
15