North Orange County Regional Occupational Program * * * SUPERSEDED by amendment to EERA section 3540.1, subdivision (k), Stats. 1999, Ch. 828 (PERB 0857E)

SUPERCEDED by amendment to EERA section 3540.1,
subdivision (k), Stats. 1999, Ch. 828
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
e
NORTH 	ORANGE 	COUNTY 	REGIONAL
OCCUPATIONAL 	PROGRAM,
Employer,
and
REGIONAL OCCUPATIONAL PROGRAM
EDUCATIONAL ASSOCIATION OF 	NORTH
ORANGE 	COUNTY CTA/NEA,
Employee Organization.
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) 	Case No. 	LA-R-943
PERB 	Decision 	No. 	857
December 	17, 	1990
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Appearances: 	Parker & Covert by Margaret A. 	Chidester and Val 	R.
Fadely, 	Attorneys, 	for North Orange County Regional Occupational
Program; 	Charles R. 	Gustafson, Attorney, 	for Regional
Occupational 	Program 	Educational 	Association of 	North 	Orange
County 	CTA/NEA.
Before Shank, 	Camilli and Cunningham, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is 	currently before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the North Orange County Regional 	Occupational 	Program 	(NOCROP) 	to
a proposed decision by an administrative 	law judge 	(ALJ).1 In
that decision, 	the ALJ determined that NOCROP 	is 	a public 	school
employer within the 	meaning 	of 	Government 	Code 	section 	3540.l(k)
and 	that 	the unit 	of 	certificated 	employees 	sought 	by 	the
Regional 	Occupational 	Program 	Educational 	Association 	of 	North
1 This 	case was 	first before the 	Board on a request 	to 	excuse
the 	late 	filing of NOCROP's 	exceptions which were 	filed 	in the
Los Angeles 	Regional Office. 	In PERB Decision No. 	807 	(issued
5/15/90), 	as modified by an ERRATA issued 	11/2/90, 	the Board
excused 	the 	late 	filing 	and 	accepted 	the 	exceptions 	as 	timely
filed.
(

Orange County CTA/NEA 	(ROPEA) 	is 	appropriate 	for purposes 	of
meeting 	and 	negotiating.
FACTS
NOCROP was 	established through the 	execution of 	a 	joint
powers 	agreement 	among two 	union 	school 	districts 	and 	three
unified 	school districts. 	NOCROP 	is 	governed by a board of
trustees 	(Trustees) 	comprised of 	seven members, 	which includes
two 	representatives 	of 	each of 	the union high 	school 	districts
and one 	representative 	of 	each of 	the unified 	school 	districts.
Each 	representative 	is 	an 	elected board member 	from one 	of 	these
districts, 	and 	is 	appointed to a 	four-year term as 	a NOCROP
Trustee. 	NOCROP 	Superintendent Thomas 	Kurtz was 	hired by the
Trustees; 	and 	subordinate managers 	are hired by the
superintendent, 	subject to the approval of the Trustees.
Employer/employee 	relations 	policies 	are 	recommended by 	the
superintendent 	and 	adopted by 	the 	Trustees.
NOCROP's 	annual revenues 	exceed $13 	million, 	of which
approximately 	$10.5 	million 	is 	derived 	from 	average 	daily
attendance 	money 	from the 	state 	through 	the 	member 	school
districts. 	The balance of the revenue 	is 	derived 	from grants,
contracts, 	and 	subcontracts with public 	and private 	entities.
NOCROP's 	office 	is 	located 	in the City of Anaheim 	in 	space
leased 	from the Anaheim Unified 	School 	District. 	The 	adjoining
land 	is 	the 	only real property owned by NOCROP. 	Classes 	are
taught 	in NOCROP-owned 	facilities 	as well 	as 	in 	leased
facilities, 	donated facilities, 	and facilities of private
N	2

employers, 	including community classrooms 	(e.g., 	store 	fronts 	and
shopping centers). 	Classes 	are also taught on public 	high 	school
campuses 	and 	in vocational 	and post-secondary 	facilities.
NOCROP 	employs 	certificated personnel 	who 	provide 	training
in vocational 	skills. 	Unlike 	certificated 	instructors 	in the
member districts, 	NOCROP's personnel teach no basic 	skills 	but,
rather, 	focus on specific vocational 	skills. 	The 	credentials 	of
these 	certificated 	instructors, 	consistent with the 	Education
Code,2 differ 	from the 	credentials 	of 	certificated personnel 	at
the member districts. 	A vocational 	credential 	for a 	full-time
NOCROP 	instructor requires 	a minimum of 	five years 	of 	experience
in the area of 	expertise, 	a high 	school diploma or 	its
equivalent, 	and the completion of 	18 	semester units 	of 	classes 	in
methodology. 	A credential 	for a part-time 	instructor requires
the 	same, 	albeit with fewer 	semester units. 	Although many NOCROP
instructors possess 	college degrees, 	college degrees 	are not
required 	for 	certification.
Among 	the NOCROP 	certificated 	employees 	are 	the 	following
full time positions: 	78 instructors; 	5 vocational counselors;
and 	6 project 	instructors. 	Also 	certificated are 	66 part-time
instructors who work less 	than 	30 	hours per week, 	and one 	job
developer.
NOCROP 	instructors 	teach diverse 	subjects 	in a wide variety
of 	settings 	and arrangements. 	For example, 	one 	full-time
2See sections 	44260, 	44260.1, 	and 52323 of the Education
Code.
33

instructor teaches 	automobile mechanics 	for NOCROP 	in a 	classroom
at a high school 	of 	one of 	the member districts. 	Another 	full-
time 	instructor works with 	two different 	programs 	in the
automotive 	field, 	including a 	"community-based program," 	which 	is
held 	at 	a 	car dealership. 	Other 	instructors work 	in 	"special
projects," 	including projects 	involving 	contracts with 	other
government agencies. 	In addition, 	pursuant to 	"reverse 	link"
instruction agreements, 	as 	specified, 	NOCROP provides
appropriately 	credentialed NOCROP 	instructors 	to 	serve 	as
instructors 	in programs 	offered by 	the 	school 	districts.
Furthermore, 	NOCROP 	also 	entered 	into 	agreements with various
joint 	apprenticeship 	committees 	to 	provide 	training 	for
apprentices 	in skilled trades. 	And, 	finally, 	a similar training
arrangement has 	been made with private 	employers.
On August 	18, 	1988, 	ROPEA filed a request 	for recognition as
the 	exclusive 	representative 	of 	a 	comprehensive unit of
certificated employees of NOCROP. 	On September 	13, 	1988, 	NOCROP
filed a 	response 	to 	the petition 	in which 	it asserted 	that 	the
Board 	lacks 	jurisdiction over this 	request 	for 	recognition
because 	a 	regional 	occupational 	program 	is 	not 	a 	"public 	school
employer" 	as defined by Government Code 	section 3540.l(k).
NOCROP 	stated 	its 	intention to deny 	recognition 	in the 	event 	that
PERB 	found the proof of 	support 	sufficient. 	Thereafter, 	the
proof 	of 	support was 	determined 	to 	be 	sufficient 	and NOCROP was
so advised. 	On October 	17, 	1988, 	NOCROP 	filed a denial of
recognition with PERB. 	NOCROP's 	stated reasons 	for the denial
4

included doubt 	as 	to 	the appropriateness 	of 	the proposed unit 	as
well 	as 	NOCROP's previously 	stated position that 	it was 	not 	a
public 	school 	employer.
Citing Joint 	Powers 	Board of Directorsf 	Tulare County
Organization for Vocational 	Education. 	Regional Occupational
Center and Program 	(1978) 	PERB Decision No. 	57, 	as PERB
precedent, 	the ALJ 	concluded that NOCROP 	is 	a public 	school
employer within the meaning of 	Government 	Code 	section
3540.l(k),' and that the unit of certificated employees 	sought by
ROPEA 	is 	appropriate 	for purposes 	of 	meeting and 	conferring 	under
the Educational Employment Relations Act 	(EERA).4
NOCROP 	set 	forth numerous 	exceptions 	to the proposed
decision. 	The critical 	issue here, 	as advanced by NOCROP, 	is
whether NOCROP 	is 	a 	"public 	school 	employer" 	within the meaning
of Government Code 	section 3540.l(k). 	Because we conclude that
the resolution of 	this particular 	issue 	is 	dispositive 	of 	the
case, 	we have 	limited our response 	and discussion below to
NOCROP 	is 	exceptions which 	relate 	to that particular 	issue.
3Government Code 	section 3540.l(k) 	states:
(k) 	"Public 	school 	employer" 	or 	"employer"
means 	the governing board of 	a 	school
district, 	a school district, 	a county board
of 	education, 	or a county 	superintendent of
schools.
'EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.
5

DISCUSSION
Preliminarily, 	based on the rationale 	set 	forth 	in
California 	State University 	(San Diego) 	(1989) 	PERB Decision
No. 	718-H 	(see also discussion in Lake Elsinore 	School 	District
(1988) 	PERB Decision No. 	696, 	concerning deferral to
arbitration), 	it is 	important to recognize at the outset that
this 	Board has 	only 	such 	jurisdiction and powers 	as 	have been
conferred on 	it by 	statute. 	(Association For Retarded Citizens
v. 	Department of Developmental Services 	(1985) 	38 Cal.3d 384,
391-392 	and Fertig v. 	State Personnel Board 	(1969) 	71 	Cal.2d 	96,
103.) 	Further, 	this Board acts 	in excess of 	its 	jurisdiction if
it 	acts 	in violation of 	the 	statutes 	conferring or 	limiting 	its
jurisdiction and powers. 	(Abelleira v. 	District Court of Appeal
(1941) 	17 Cal.2d 280, 	288-291; 	Kennaley 	v. 	Superior Court 	(1954)
43 Cal.2d 512, 	514; 	and Graves v. 	Commission on Professional
Competence 	(1976) 	63 Cal.App.3d 970, 	976, 	hg. 	den.) 	Moreover,
where the Board 	is without 	jurisdiction, 	it cannot acquire
jurisdiction by the parties' 	consent, 	agreement, 	stipulation or
acquiescence, 	nor by waiver or estoppel. 	(Schlyen v. 	Schlyen
(1954) 	43 Cal.2d 361, 	375; 	Keithley v. 	Civil Service Board of
City of Oakland 	(1970) 	11 Cal.App.3d 443, 	448, 	hg. 	den.; 	Summers
v. 	Superior Court 	(1959) 	53 Cal.2d 295, 	298; 	and Sampsell v.
Superior Court 	(1948) 	32 Cal.2d 763, 	773, 	776.) 	Finally, 	the
absence 	of 	jurisdiction 	cannot 	be 	overcome 	by 	the 	established
practices 	or customs 	of this 	Board, 	nor by Board regulation.
(J.R. 	Norton Co. 	v. 	Agricultural Labor Relations Board 	(1979) 	26
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66

Cal.3d 1, 	29; 	Morris v. Williams 	(1967) 	67 Cal.2d 733, 	737, 	748;
and California State Restaurant Association v. 	Whitlow, 	Chief.
Division of Industrial Welfare 	(1976) 	58 Cal.App.3d 340, 	347, 	hg.
den. )
It 	is, 	therefore, 	necessary to turn to the statutes to
determine 	if the Board has 	the requisite 	jurisdiction. 	In
construing a 	statute, 	we begin with the 	fundamental 	rule that a
court 	"should ascertain the 	intent 	of 	the Legislature 	so 	as 	to
effectuate the purpose of 	the 	law." 	(Mover v. 	Workmen's
Compensation Appeals Board 	(1973) 	10 Cal.3d 222, 	230.) 	Further,
it 	is 	a 	fundamental maxim of 	statutory construction that, 	where
no ambiguity exists, 	the 	intent of 	the Legislature 	in enacting a
law 	is 	to be gleaned 	from the words 	of 	the 	statute 	itself,
according to 	the usual 	and ordinary 	import 	of 	the 	language
employed. 	Thus, 	where the 	language of a 	statute 	is 	clear and
unambiguous, 	case 	law holds 	that 	the 	construction 	intended by the
Legislature 	is 	obvious 	from the 	language used. 	(Noroian v.
Department of Administration, 	Public Employees' 	Retirement System
(1970) 	11 Cal.App.3d 651, 	654, hg. 	den.; 	McQuillan v. 	Southern
Pacific Co. 	(1974) 	40 Cal.App.3d 802, 	805-806; 	Hoyme v. 	Board of
Education 	(1980) 	107 Cal.App.3d 449; 	Great Lakes Properties. 	Inc.
v. 	City of El Segundo 	(1977) 	19 Cal.3d 	152, 	155; 	and People v.
Boyd 	(1979) 	24 Cal.3d 285, 	294.)
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Turning to 	the 	specific 	statute 	involved here, 	Government
Code 	section 	3540.1 	contains 	definitions 	of various 	terms 	for
purposes 	of Chapter 	10.7 	of 	(commencing with 	3540) 	of 	Division 4
7

of Title 	1 	(EERA). 	Subdivision 	(k) 	of section 3540.1 	states that
"[p]ublic 	school 	employer or 	employee 	means 	the 	governing board
of a 	school district, 	a 	school district, 	a county board of
education, 	or a county 	superintendent of 	schools."
On its 	face, 	therefore, 	the definition of 	"public 	school
employer" 	or 	"employer" 	clearly does 	not 	include 	a 	joint powers
agency, 	or a 	joint powers 	agreement governing a regional
occupational program or a 	regional 	occupational 	center.
For this 	Board to 	interpret 	the 	statute to 	include 	entities
not 	expressly 	referred 	to 	in the 	definition would violate 	the
rule which prohibits 	an administrative 	agency 	from altering 	or
amending a 	statute 	or enlarging 	its 	scope 	(Association 	for
Retarded Citizens 	v. 	Department 	of 	Developmental 	Services
38 Cal.3d 384, 391).
Moreover, 	the 	familiar rule of 	statutory construction
dictates 	that where a 	statute 	enumerates 	things 	upon which 	it 	is
to operate, 	it is 	to be construed as 	excluding from its 	effect,
all 	those 	not 	expressly mentioned 	(Capistrano 	Union 	High 	School
District v. 	Capistrano Beach Acreage Co. 	(1961) 	188 Cal.App.2d
612, 	617). 	This rule is, 	of course, 	subordinate to the primary
rule 	that the 	intent 	of 	the 	Legislature 	shall prevail 	over
specific 	rules 	of 	statutory construction 	(Banergie v. 	Bank of
America 	(1978) 	21 Cal.3d 527, 	540). 	In the context presented
here, 	the plain meaning of the 	language 	employed by the
Legislature 	clearly 	indicates 	that 	the 	intent 	of 	the 	Legislature
was 	to 	include 	only 	those 	entities 	specifically 	named 	in
8

subdivision 	(k) 	of 	section 3540.1. 	Where the language of a
statute 	is 	clear and unambiguous, 	the construction intended by
the 	Legislature 	is 	obvious 	from the 	language used 	(Novoian v.
Department of Administration, 	Public Employees' 	Retirement
System, 	supra).
In contrast, 	where the Legislature 	intended a particular
body of 	statutes 	to 	apply to both 	school 	districts 	and 	joint
power entities, 	it has 	expressly 	stated 	such intention. 	Thus,
for 	example, 	where the Legislature 	intended 	for a 	regional
occupational 	center 	established pursuant 	to 	Chapter 	9 	(commencing
with Section 52300) 	of Division 9 	of Title 	2 	of the Educational
Code by 	two 	or more 	school 	districts 	in accordance with a 	joint
powers 	agreement 	to be 	treated 	the 	same 	as 	school 	districts 	for
purposes 	of 	the Public 	Employee's 	Retirement System, 	the
Legislature 	has 	found 	it 	necessary 	to 	expressly provide 	for 	that
result 	by 	enacting 	Section 	20580.01 	to 	the Government Code.
Thus, 	Section 20580.01, 	reads in pertinent part, 	as follows:
20580.01. 	A regional 	occupational 	center
established pursuant to Chapter 	9 	(commencing
with Section 52300) 	of Division 4 of Title 	2
of 	the 	Education Code by two 	or more 	school
districts 	by a 	joint powers 	agreement 	shall
be deemed a 	school 	district 	for purposes 	of
this part. . . 	.
Similarly, 	the Legislature has provided, 	with respect to
regional 	occupational 	centers 	specifically, 	that 	"[f]or purposes
of 	receiving advances 	of 	funds 	from the 	county treasury only. 	a
regional 	center 	shall be deemed to be 	a 	school 	district."
(Education Code, 	Section 52320, 	emphasis added.) 	The Legislature
9

has 	also provided 	that with respect 	to 	the 	issuance 	and 	sale 	of
bonds 	for the 	construction and other 	capital 	expenditure 	for 	a
regional 	occupational 	center undertaken by 	two 	or more 	school
districts pursuant to a 	joint powers 	agreement, 	the bonds 	shall
be 	issued and 	sold 	in the 	manner provided by 	law 	for 	the 	issuance
and 	sale of bonds 	of 	a high 	school 	district 	(Education Code,
Section 	52319).
Therefore, 	the Legislature has 	in certain identified
instances 	seen the 	necessity 	to 	expressly provide 	that 	school
districts 	and 	joint power 	entities 	operating a 	regional
occupational 	center or program are 	to be 	given the 	same meaning
for 	certain 	limited purposes. 	Absent 	a 	finding of 	this 	express
language, 	courts would be reluctant to enlarge the 	scope of
language which is 	clear on its 	face 	(See Novoian v. 	Department of
Administration, Public Employees' 	Retirement System, 	supra). 5
Moreover, 	the provisions 	contained 	in Chapter 	9 	(commencing
with Section 52300) 	of Part 28 	of Title 2 	of the Education Code
governing 	regional 	occupational 	centers 	and programs 	clearly 	and
consistently 	recognize 	distinctions 	between programs 	or 	centers
established 	and 	maintained 	by 	school 	districts 	and 	those
established and maintained by 	joint power agencies. 	Thus, 	for
example, 	Section 	52321 	of the Education Code describes 	"regional
5In a different context, 	we note that the Legislature has
defined 	"school 	districts" 	for purposes 	of 	state-mandated 	costs
to mean any 	school district, 	community college district, 	or
county 	superintendent 	of 	schools 	(Government Code 	section 	17519)
Conspicuously 	absent 	from this 	listing 	are 	joint power 	agencies.
10

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11
occupational 	center 	or program 	established 	and 	maintained 	by
school 	districts 	or 	joint powers 	agencies 	pursuant 	to 	Section
52301" 	(Emphasis added.)- 	The function of the word 	"or" 	is 	to
mark an alternative 	such as 	"either this 	or that" 	(Houge v. 	Ford
(1955) 	44 Cal.2d 706, 	712). 	Thus, 	the Legislature in Section
52321 	recognizes 	a 	legal distinction between centers 	or programs
maintained by 	joint power 	agencies 	and 	those 	maintained 	by 	school
districts.
If 	the term 	"school districts" 	includes 	joint powers
agencies, 	the addition of the 	language 	"or joint power agencies"
following the 	term 	"school 	districts" 	in Section 	52321 	and
related 	sections 	in Chapter 	9 	(commencing with Section 	52300) 	of
the 	Education Code would be meaningless 	language. 	In this
respect, 	it 	is 	a cardinal rule of 	statutory construction that
every word 	in a 	statute 	is 	presumably 	intended to have 	some
meaning 	and 	that 	a 	construction making 	some words 	surplusage 	is
to be avoided. 	(In re Marriage of Galis 	(1983) 	149 Cal.App.3d
147, 	153.) 	Here the reference to 	"school districts or joint
powers 	agencies" 	manifests 	an intent to apply the provisions 	to
entities 	in the alternative. 	Again, 	a recognition of a 	legal
distinction.
With respect 	to 	the 	establishment and maintenance 	of 	a
regional 	occupational 	center 	or program by 	two 	or more 	school
districts pursuant to a 	joint powers 	agreement, 	Section 52301 	of
the 	Education Code 	expressly provides 	for 	that 	authorization 	in
accordance with Article 	1 	(commencing with Section 	6500) 	of

Chapter 	5 of Division 7 	of Title 	1 	of the Government Code. 	The
governing board 	of 	a 	regional 	occupational 	program 	or 	center
established after 	1965, 	such as NOCROP, 	by two or more 	school
districts pursuant to a 	joint powers 	agreement 	is 	required,
pursuant 	to 	the 	Legislative mandate 	set 	forth 	in 	subdivision 	(e)
of 	Section 52310.5 	of the Education Code, 	to consist of 	at 	least
one member of 	the governing board of 	each of 	the 	school 	districts
cooperating 	in the 	regional 	occupational program or 	center with
each member 	selected 	by 	the 	governing board 	of 	the 	school
district 	represented 	by 	that member.
Section 	6503.5 	of 	the Government Code 	recognizes 	that 	an
agreement 	creating a 	joint powers 	agency results 	in the 	creation
of 	an agency or 	entity which 	is 	separate 	from the parties 	to 	the
agreement 	(the 	individual 	school districts) 	and 	is 	responsible
for the administration of 	the 	agreement. 	The 	separate and
distinct 	joint powers agency or entity 	shall, 	within 	30 	days
after the 	effective date of the 	agreement, 	cause a notice of 	the
agreement 	to be prepared and 	filed with 	the 	Secretary 	of 	State
(Government Code section 6503.5). 	(See also 66 Ops Cal.Atty.Gen.
183, 	185.)
A 	further 	indication 	that 	a 	regional 	occupational 	center 	or
program maintained by a 	joint powers 	agency 	is 	separate 	and
distinct 	from the participating 	school 	districts 	is 	found 	in the
fact that 	such a 	joint powers 	agency receives 	its 	separate,
annual 	operating 	funds 	from each of 	the participating 	school
12

districts 	based 	on 	specified units 	of 	average 	daily 	attendance
(Government Code section 52321).
It 	is 	also 	significant that at 	the time of 	the 	enactment of
EERA, 	which, 	as enacted, 	included the current form of the
definition of 	"public 	school 	employer," 	former Section 	7451 	of
the 	Education Code6 expressly authorized 	the 	establishment 	and
maintenance 	of 	a 	regional 	occupational 	center 	or program by 	two
or more 	school districts pursuant to the 	joint powers 	statutes.
In this 	respect, 	it must be assumed that the Legislature, 	when
passing a statute 	(e.g., 	EERA), 	was aware of existing related
laws 	and that the 	statute 	(e.g., 	EERA) 	was 	enacted with full
knowledge of 	the 	state of 	the 	law at the time of 	its 	enactment
fin re Misener 	(1985) 	38 Cal.3d 543, 	552; 	Fuentes v. 	Workers'
Compensation Appeals Board 	(1976) 	16 Cal.3d 1, 	7 ) . 	Therefore, we
can only 	assume 	that 	the 	Legislature's 	failure 	explicitly 	to
include 	joint powers 	agencies within the definition of 	"public
school employer" 	under Government Code section 3540. l(k) 	was
intentional.
A review of 	the 	facts 	in this 	instant 	case with the 	relevant
statutes, 	clearly indicates that NOCROP 	is 	a 	joint powers 	agency
formed 	and 	maintained 	in accordance with 	the pertinent 	statutes.
Accordingly, 	it 	is 	a 	separate and distinct entity in law.
Turning to our prior precedent, 	this 	Board has 	concluded
that 	a 	construction which would 	exclude 	joint power 	agencies 	from
6Former 	Section 	7541 	of 	the 	Education Code was 	the
predecessor to 	current 	Section 	52301 	of 	the Education Code.
13

the definition of 	"public 	school 	employer" 	is 	contrary to the
legislative 	intent 	in enacting EERA (Tulare County, 	supra 	PERB
Decision No. 	57) 	because 	that construction would have the 	effect
of denying these 	employees 	the rights 	set 	forth 	in EERA. 	The
Board went on to 	say, 	as 	follows:
The 	ROC 	and ROP programs 	offered by 	TCOVE 	are
educational programs 	of 	the public 	school
system. 	These programs 	may be 	offered by a
single 	large 	district 	or 	jointly by 	several
smaller districts. 	The 	fact that 	smaller
districts 	such as 	those 	in the 	instant 	case
are 	able 	to effectively 	implement 	the
legislatively 	prescribed 	ROC/ROP 	programs
only by 	combining their 	resources 	in no way
removes 	the programs 	from the parameters 	of
the public school system. 	. 	. 	.
(Tulare County, 	supra, 	at p. 	6.)
It 	is 	true that 	a 	regional 	occupational 	center operated by a
joint powers 	agency possesses 	many of 	the 	same 	characteristics 	as
a 	school 	district 	and are 	a part of 	the 	overall public 	school
system. 	However, 	in the words of dissenting Member Gonzales 	in
Tulare County, 	supra. 	starting at page 	11:
Yet, 	TCOVE 	is 	an employer with different
characteristics 	in its 	formation, 	funding and
authority, 	which the Board 	can only 	suppose
the 	Legislature 	reasonably determined 	should
not be defined as 	a 	"public 	school 	employer"
within the meaning of 	section 3540.l(k).
Words 	may not be 	inserted 	into 	a 	statute
under the 	guise 	of 	statutory 	interpretation.
Kirkwood v. 	Bank of America 	(1954) 	43 Cal.2d
333, 	341. 	It is the function of the Board to
construe and apply the EERA as 	enacted, 	and
not 	to 	add 	thereto 	or detract 	therefrom.
People v. 	Moore 	(1964) 	229 Cal.App.2d 221,	- -
222. 	The Board should not 	sit as a 	super-
legislature 	to determine 	the wisdom,
desirability or propriety 	of 	statutes 	enacted
by the Legislature. 	Horman Estate 	(1971)
5 Cal.3d 62, 	77. 	I do not think the Board
can 	say that 	failure 	to 	find TCOVE 	an
14

employer will 	"nullify the 	essence of 	the
statute."
In the 	case 	of 	Hacienda 	La 	Puente 	Unified 	School 	District
(1988) 	PERB Decision No. 	685 	(Petition for Writ of Review denied
March 22, 	1989), 	this Board, 	based in substantial part, 	on the
principle 	that 	California 	has 	long 	recognized 	that 	the power 	to
rewrite 	statutes, 	no matter how laudable the goal, 	does not
belong to the 	courts, 	refused to hold that 	for purposes 	of 	former
Government Code 	section 	3543.5(a) 7 applicants 	for employment were
included within the 	term 	"employees." 	The 	Hacienda 	Board
concluded that 	the unambiguous 	nature 	of 	the 	statute 	in 	issue
precluded 	the 	Board 	from usurping 	the 	duty 	of 	the 	Legislature,
and that 	the policy reasons 	for a 	contrary result, 	which would
lead to 	including applicants 	in EERA, 	are best directed to 	the
legislative branch.8 Therefore, 	this 	Board has 	shown a
reluctance to 	expand the 	scope of EERA where, 	as 	is the case
here, 	the terms of the 	statute are unambiguous 	(see State
77
At the time Hacienda. 	supra. 	was decided, 	Section 3543.5
read, 	in relevant part, 	as follows:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter.
(Emphasis 	added.)
8Following the 	issuance of 	the Hacienda decision, 	the
Legislature 	amended 	subdivision 	(a) 	of 	Section 	3543.5 	by adding
the 	following 	closing 	sentence 	to 	that 	subdivision: 	"For
purposes 	of 	this 	subdivision, 	"employee" 	includes 	an applicant
for employment or reemployment" 	(Ch. 	313, 	Stats. 	1989).
15
----- 	---

Personnel 	Board v. 	Fair 	Employment 	and 	Housing Commission 	(1985)
39 Cal.3d 422.
In this 	respect, 	the court 	in Regents 	of University of
California v. 	Public 	Employment Relations 	Board 	(1985) 	168
Cal.App.3d 937, 	944-945, 	has also showed a reluctance to allow
the Board to rewrite a 	statute 	to 	suit the Board's 	notion of what
the Legislature must have, 	in the opinion of the Board, 	intended
to 	say. 	As 	the court pointed out, 	the Legislature would be
rendered nearly powerless 	to make 	changes 	in the 	statutes 	if 	the
courts permit 	the 	Board to 	interpret 	statutes 	to 	suit 	the 	Board's
favored 	construction 	(see 	Regents 	of 	University 	of 	California 	v.
Public Employment Relations Board, 	supra 945).
Accordingly, 	based in substantial part, 	on the rationale 	set
forth 	in our more 	recent decisions 	of 	Hacienda 	La 	Puente 	Unified
School District, 	supra, 	PERB Decision No. 	685 and California
State University 	(San Diego), 	supra, 	PERB Decision No. 	718-H
recognizing 	that 	the Board 	is 	without power to 	expand 	the 	scope
of 	its 	own 	jurisdiction where 	the 	Legislature has 	failed to
provide 	that 	authority, 	and upon a 	closer 	examination of 	all
relevant 	statutes 	concerning the matter at 	issue, 	we now feel
compelled to overrule Tulare County, 	supra, 	PERB Decision No. 	57
insofar as 	it holds 	that 	a regional 	occupational 	center or
program operated by a 	joint powers 	agency 	is 	a public 	school
employer pursuant to Government Code 	section 3540.l(k).
Accordingly, 	unless 	or until 	the Legislature amends 	that 	section
to 	include programs 	operated by a 	joint powers 	agency within the
16

definition of a public 	school 	employer, 	there 	is 	no 	jurisdiction
for this 	Board to 	resolve 	the dispute 	in the 	instant 	case.
ORDER
ROPEA's 	petition requesting 	recognition 	is 	DENIED.
Member Camilli 	joined 	in this 	Decision.
Member Cunningham's 	dissent begins 	on page 	18.
17

Cunningham, 	Member, 	dissenting: 	I disagree with the
conclusion that 	the 	Public 	Employment 	Relations 	Board does
not 	have 	jurisdiction over 	the North Orange 	County 	Regional
Occupational Program 	(NOCROP), 	because it is not a 	"public
school 	employer" 	within the meaning of Government Code 	section
3540.l(k). 	I believe Joint Powers Board of Directors. 	Tulare
County Organization 	for Vocational 	Education, 	Regional
Occupational Center and Program 	(1978) 	PERB Decision No. 	57
was 	correctly decided, 	and that we 	should, 	therefore, 	assume
jurisdiction over the 	instant dispute.
In arriving at my conclusion, 	I 	rely on the analysis 	set
forth by the Court of Appeal 	in People v. 	Hacker 	Emporium, 	Inc.
(1971) 	15 Cal.App.3d 474. 	A fundamental principle 	emphasized in
that 	case 	is 	that 	the 	legislative 	intent 	underlying a 	statutory
scheme 	is 	of primary 	importance. 	A 	literal 	interpretation or
application of 	a 	statute which will 	nullify 	such 	intent
constitutes 	an improper construction of the 	statute. 	(Id.,
at pp. 	477-478.) 	Further, 	as the court stated:
"Statutes 	must be 	given a 	reasonable 	and
common 	sense 	construction 	in accordance
with 	the 	apparent purpose 	and 	intention 	of
the 	lawmakers—one 	that 	is practical 	rather
than technical, 	and that will 	lead to wise
policy rather 	than to mischief 	or absurdity."
(45 Cal.Jur.2d, Statutes, 	§ 116, pp. 	625-626;
Buchwald v. 	Superior Court 	(1967)
254 Cal.App.2d 347, 	354-355 	[62 Cal.Rptr.
364].)
(People v. 	Hacker Emporium. 	Inc. 	(1971)
15 Cal.App.3d 474, p. 	478; 	emphasis added.)
18

The proper 	statutory 	interpretation 	is 	that which promotes,
rather than defeats, 	the 	legislative purpose and policy-
underlying a statutory scheme. 	(People v. 	Hacker Emporium, 	Inc. ,
- -
suprat 	15 Cal.App.3d 474, 	478; 	see also People v. 	Rojas 	(1975)
15 Cal.3d 540, 	551-552 	[542 P.2d 229]; 	People v. 	Newble 	(1981)
120 Cal.App.3d 444, 	450 	[174 Cal.Rptr. 	637]; Worthington v.
Unemployment 	Insurance Appeals 	Board 	(1976) 	64 	Cal.App.3d 	384,
388 	[134 Cal.Rptr. 	507].) 	Finally, 	and I believe of primary
consideration 	in this 	instance, 	we 	should 	avoid any 	statutory
construction which 	affords 	an opportunity 	to 	evade 	a 	statutory
mandate 	and 	accomplish 	indirectly what 	cannot 	be 	accomplished
directly pursuant to the 	statutory 	scheme. 	(People v. 	Hacker
Emporium. 	Inc.. 	supra, 	15 Cal.App.3d 474, p. 	478.)
-
In this 	case, 	a 	literal 	interpretation of the Educational
Employment Relations Act 	(EERA) 	section 3540.l(k) 	leads 	to the
unreasonable result that NOCROP 	employees 	lose 	all 	of the 	rights
guaranteed 	to public 	school 	employees 	under 	the 	EERA 	simply
because 	several 	traditional 	school 	districts 	(clearly 	"public
school 	employers") 	have 	chosen to 	create 	a 	joint powers 	entity
leading 	to the 	establishment 	of 	a 	regional 	occupational program.
It 	seems 	ludicrous 	that, 	if a 	school district 	establishes 	its 	own
vocational 	education program, 	its 	certificated 	employees would be
protected by EERA; 	however, 	if that 	same district 	joins with
another to 	create 	a 	similar program under a 	joint powers
agreement, 	its 	employees 	are not entitled to the 	same protection.
19

The 	express purpose of 	EERA 	is 	to promote 	improved 	labor
relations within the public 	school 	systems by, 	inter alia:
. 	. 	. 	providing a uniform basis for
recognizing 	the 	right 	of 	public 	school
employees 	to 	join organizations 	of 	their
own choice, 	to be represented by the
organizations 	in their professional 	and
employment 	relationships 	with public 	school
employers 	. 	. 	. 	and to afford certificated
employees 	a voice 	in the 	formulation of
educational policy. 	. 	. 	.
(Gov. Code, 	sec. 	3540; 	emphasis added.)
In view of 	this 	stated purpose, 	providing traditional 	school
districts with 	a 	means 	of 	denying 	certificated NOCROP 	employees
of 	all 	representational 	and other 	statutory rights, 	in my view,
flies 	in the 	face 	of 	sound decision-making. 	A technical
construction of 	section 	3540.l(k) 	could be 	construed 	as 	the 	type
of 	"absurd result" 	which the 	courts 	view with 	extreme disfavor.
As 	a policy matter, 	by allowing 	school 	districts 	to 	evade
their 	collective bargaining 	obligations 	in the 	context 	of
vocational 	education, 	I 	fear that we would be allowing a gross
injustice to be 	inflicted upon this 	group of 	employees, 	as well
as 	doing a gross disservice to vocational 	education 	students. 	By
not 	affording these 	employees 	the 	same 	set of 	rights 	afforded to
their counterparts within the traditional 	school districts, 	as
well 	as 	to classified employees, 	we 	send a message that 	implies
that 	they are 	somehow of 	a 	lesser 	status 	than traditional 	school
district 	employees. 	This 	could discourage 	talented people 	from
pursuing careers as vocational 	educators and, 	in turn, 	could
interfere with 	the 	establishment 	of 	quality 	vocational 	education
20

programs. 	Those 	students 	choosing to 	enroll 	in vocational
education programs 	are harmed as 	a 	result because 	they 	are unable
to 	get 	the best possible vocational 	education within 	such a
system. 	Likewise, 	in the long run, 	California's 	citizens 	suffer
because we 	could 	lack competent, 	qualified plumbers,
electricians, auto mechanics, painters, 	etc. 	Consequently, 	I
believe 	the 	only 	reasonable 	construction and application of
section 	3540.l(k), 	in keeping with the overall policy and purpose
of EERA, 	is 	that NOCROP, 	an arm of 	several public 	school
employers, 	is 	itself a public 	school employer and, 	therefore
subject 	to this 	agency's 	jurisdiction.
21