Sweetwater Union High School District (PERB J001E)

STATE 	OF 	CALIFORNIA
EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	BOARD
JUDICIAL 	REVIEW 	ORDER
In the Matter of Petition for Judicial Review
SWEETWATER UNION HIGH SCHOOL DISTRICT,
Employer
and
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
CHAPTER 471,
Employee Organization, PETITIONER
and
UNITED PUBLIC EMPLOYEES, LOCAL 390,
SERVICE EMPLOYEES INTERNATIONAL UNION,
AFL-CIO,
Employee Organization
LA-R-27, 28, and 696
EERB Decision No. 4
EERB Order No. JR-1
Pursuant to Government Code Section 3542(a)(1), 	the Educational Employment
Relations Board hereby declines request of petitioner in the above-captioned
case to join in judicial review of EERB unit determination decision #4.
The Board does not agree that the case is "one of special importance" as
set forth in Section 3542(a)(1).
Educational Employment Relations Board
by
Stephen Barber
Executive Assistant to the Board
4/29/77
Chairman Alleyne, dissenting:
I dissent 	from the Board Order denying CSEA's request for judicial review of the
Board's decision that head custodians are supervisors within the meaning of the

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Act.1 	CSEA has been certified as the exclusive representative of the employees in
a negotiating unit which would have included head custodians but for the EERB's
decision that head custodians are supervisors within the meaning of Government
Code Section 	3540.l(m).2 	This means that negotiations between CSEA and the district
may begin, 	if they have not already begun.
Government Code Section 3542(a) provides:
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.
The Board's decision not to join in CSEA's request for judicial review merely delays
CSEA's opportunity to appeal the Board's head custodians decision to the Superior
Court and from there to higher courts should that be desired.
The Board's decision not to join CSEA's request for judicial review cannot prevent
CSEA from seeking judicial review of the head custodians issue by means of an
unfair practice charge. 	CSEA may now request that the school district negotiate
in respect to head custodians in order to set up a refusal by the district based on
the Board's Sweetwater decision that head custodians are supervisors within the
meaning of the EERA and hence 	not eligible for inclusion in the operations-support
services unit now represented by CSEA.
Sweetwater Union High School District, EERB Decision No. 4, November 23, 1976.
2The election was held on February 16, 	1977. 	CSEA was certified on March 28,
1977, as the exclusive representative in an operations-support services unit.

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If that request is made by CSEA and the district refuses to negotiate concerning
head custodians, 	CSEA may then file a refusal-to-negotiate charge with the EERB.
Once that case has been heard by an EERB hearing officer and the EERB decides,
consistent with its head custodians decision in the representation case, 	that the
district did not improperly refuse to bargain over head custodians, 	CSEA may appeal
that EERB decision to the Superior Court, and from there to higher courts, without
asking the EERB to join in the appeal. 	To allow the appeal now, under Government
Code Section 3542(a)(l), would speed resolution of the issue and would avoid using
the time of the district, 	CSEA, a Board hearing officer and the Board itself in
what will amount to a pro forma unfair practice proceeding. 	I, accordingly, believe
that the appeal should be allowed in advance of an unfair practice case.
This case is one of "special importance" within the meaning of Government Code
Section 3542(a)(1) because the issue of whether head custodians are supervisors has
been raised in many of the classified representation cases before the EERB, 	and
unlike some unit issues, 	this one involves a single classification in the classified
work force. 	It 	therefore 	may be appealed to the judiciary without holding up
negotiations. 	Another reason why this is a case of "special importance" within the
meaning of Government Code Section 3542(a)(l) 	is that the EERB has rendered apparently
conflicting decisions on the head custodian issue and the conflict should be resolved
by the judiciary. 3
3
Compare Sweetwater Union High School District, EERB Decision No. 	4, November
23, 1976, San Diego Unified School District, EERB Decision No. 8, February 18, 1977,
holding that head custodians 	(or their equivalent under another job title) are
supervisors within the meaning of the Act, with Foothill-DeAnza Community College,
EERB Decision No. 10, March 1, 1977, holding on facts similar to those in Sweetwater
and San Diego that custodial, 	construction and grounds foremen are not supervisors
within the meaning of the Act.
Reginald Alleyne, Chairman