Grossmont Union High School District (PERB J002E)

STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
GROSSMONT UNION HIGH SCHOOL DISTRICT,
Employer,
and
GROSSMONT STUDENT SERVICES ASSOCIATION,
Employee Organization,
and
GROSSMONT EDUCATIONAL ASSOCIATION, CTA/NEA,
Employee Organization,
and
GREATER GROSSMONT FEDERATION OF TEACHERS,
LOCAL 1930, CFT/AFT, AFL-CIO,
Employee Organization.
Case Nos. LA-R-185
LA-R-254
EERB Decision No. 11
EERB Order No. JR-2
ORDER JOINING REQUEST FOR JUDICIAL REVIEW
The request of Grossmont Student Services Association (GSSA) that the
Educational Employment Relations Board (EERB) join GSSA's request for judicial
review of the EERB decision in Grossmont Union High School District is granted.
This is a case of "special importance" within the meaning of Government Code Section
3542(a)(1).2 The issue decided by the EERB in the Grossmont decision is novel and
one that arises frequently in representation unit cases arising under the Educational
1EERB Decision No. 11, March 9, 1977.
2Gov. Code Sec. 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.

Employment Relations Act. In addition, GSSA, having lost the representation election
directed by the EERB in the Grossmont decision, is not an exclusive representative.
Government Code Section 3543.3 requires that a district meet and negotiate "with and
only with . . . exclusive representatives. . .." Since Government Code Section
3543.5(c)4 makes it an unfair practice to refuse to negotiate "with an exclusive
representative", GSSA may not obtain judicial review of the EERB's unit determination
in the Grossmont case by charging the District with the unfair practice of refusal-to-
negotiate, as provided by Government Code Section 3542(a)(2).5
GSSA's original petition that the EERB join its request for judicial review
was filed on March 17, 1977, eight days after the EERB's Grossmont decision; therefore,
GSSA's request was not untimely as maintained by the District during oral argument on
the question of judicial review.
IT IS THEREFORE ORDERED as follows:
(1) Grossmont Union High School District, EERB Decision No. 11, dated
March 9, 1977, is certified as a case of "special importance" within the meaning of
Government Code Section 3542(a)(l).
(2) The request of Grossmont Student Services Association that the
Educational Employment Relations Board join Grossmont Student Services Association's
3Gov. Code Sec. 3543.3 provides:
A public school employer or such representatives as it may
designate who may, but need not be, subject to either
certification requirements or requirements for classified
employees set forth in the Education Code, shall meet and
negotiate with and only with representatives of employee
organizations selected as exclusive representatives of
appropriate units upon request with regard to matters within
the scope of representation.
4Gov. Code Sec. 3543.5(c) provides:
It shall be unlawful for a public school employer to:
Refuse or fail to meet and negotiate in good faith with
an exclusive representative.
5See A.F. of L. v. NLRB, 308 U.S. 401, 5 LRRM 670, 675 (1940).
GSSA's original request of March 17, 1977 was withdrawn by letter dated March 28, 1977
and replaced with a "request for reconsideration" of the Grossmont decision, a step
apparently taken to assure that administrative remedies would be properly exhausted
before seeking judicial review. GSSA's March 17 request that the EERB "delay the enforce-
ment" of its Grossmont order was withdrawn by GSSA on March 28 and never reinstituted.
GSSA's request for reconsideration was filed with the EERB on April 4, 1977 and was
denied on April 29, 1977. Following that denial, GSSA filed its "petition to join in
judicial review" on May 6, 1977. On its own motion, the EERB held oral argument on the
matter on June 30, 1977.
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request for judicial review of Grossmont Union High School District, EERB Decision
No. 11, dated March 9, 1977, is granted.
(3) This order shall expire sixty days from its date.
Reginald Alleyne, Chairman Raymond J. Gonzales, Member
Dated: July 25, 1977
Jerilou H. Cossack, Member, dissenting:
I completely disagree with the majority that this is a case of "special
importance" within the meaning of Educational Employment Relations Act (EERA)
Section 3542(a)(l). Further, I think this decision is untimely and will severely
disrupt the negotiating relationship of the District and the exclusive representative.
Section 3542(a)(1) neither defines "special importance" nor enumerates criteria
for evaluating whether a case is within its meaning. The majority determined that
the instant case was one of special importance because it is "novel and one that
arises frequently."
We have decided 15 unit determination cases. Like the original decision in
this case,2 many of our decisions have not been unanimous. Like this case, many
of those decisions were cases of first impression. Some of the questions contained
in these cases have occurred repeatedly. Many more cases yet to be decided by this
Board will be of the same nature. The majority opinion seems to render all of these
Gov. Code Sec. 3542 reads, in pertinent part,
(a) 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;....
All further statutory references are to the Government Code.
2Grossmont Union High School District, EERB Decision No. 11, March 9, 1977.
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cases ones of "special importance"—i.e. ones that are "novel and...
[arise] frequently." A primary purpose of administrative agencies is to provide
a method for adjudicating and resolving disputes without resort to the already
crowded courts. This Board is expected to make difficult and precedential
decisions to facilitate an orderly and efficient system of public school employer-
employee relations. If every major unit decision is certified for judicial review,
we will become merely an additional level of bureaucracy which must be gotten
through prior to inevitable resort to the courts. I believe that a decision to
certify a case for judicial review must rest on something more substantial than
that the issue or issues raised are "novel" or "arise frequently," perhaps in
situations where the decision is arguably in conflict with a statute other than
the EERA.
Aside from the fact that the majority interpretation of "special importance"
as cases that are "novel and [arise] frequently" appears to me to be inherently
internally inconsistent, it also undermines the legislature's articulated purpose
for enacting the EERA as it is stated in Section 3540, namely "...to promote the
improvement of personnel management and employer-employee relations within the
school system." The timeliness of the majority's decision to certify this case
to the courts as one of special importance frustrates that intent. The unit
decision in Grossmont was issued on March 9, 1977. On May 6, 1977, Grossmont
Student Services Association (GSSA) petitioned us to join their request for
judicial review.3 Despite this request, a representation election was held on
May 9, 1977, and the Grossmont Education Association (GEA) was certified as the
exclusive representative on May 23, 1977. Since that time, the district and GEA
have negotiated as they were obligated to do and have reached agreement on items
affecting employees whose inclusion in the unit will now be subject to judicial
review. The district and GEA properly relied on the certification as the evidence
of our final decision and attempted to meet their respective obligations under the
EERA. The majority's decision today creates unwarranted uncertainty in this
district, since it raises serious questions regarding the obligation of the
exclusive representative to represent employees in the disputed classifications
and the district's obligation to administer and abide by the negotiated agreement.
Not only is confusion created in this particular district, but also in other districts
with a similar unit issue. Unfortunately, some parties may use this confusion to delay
3A request for judicial review and a delay in enforcement of Grossmont was
filed on March 17, 1977, but withdrawn shortly thereafter. GSSA claims it withdrew
the request in order to seek reconsideration and thereby exhaust all administrative
remedies available.
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or frustrate negotiations. At a bare minimum, the decision to join in judicial
review should have been made prior to the issuance of a certification of an exclu-
sive negotiating agent.
The majority claims that joinder in the request for judicial review is
warranted in this case, because, unlike Sweetwater,4 the requesting party, GSSA,
may not challenge our unit determination through a refusal to negotiate charge
since it is not the exclusive representative and the district is under no obliga-
tion to negotiate with a non-exclusive representative. The majority implies that
an exclusive representative could obtain judicial review of an EERB unit determina-
tion by following the steps outlined in the Sweetwater dissent:
-
-
The employer refuses to negotiate on those matters;
The exclusive representative files an unfair practice charge
alleging that the district refused to negotiate in violation of Section
3543.5(a);
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The General Counsel issues a notice of hearing;
An EERB hearing officer holds the hearing and dismisses the case;
-The exclusive representative appeals the dismissal to the Board
itself, which affirms the hearing officer's decision;
-The exclusive representative appeals EERB's decision to the courts.
I disagree with the above scenario. An employer is not obligated to negotiate
about matters within the scope of representation for employees excluded from the
appropriate unit. Therefore, the exclusive representative's charge would be dis-
missed without a hearing because the employer was not under any obligation to
negotiate about employees outside the unit. If an unfair practice charge is
dismissed for failure to state a prima facie charge, and that dismissal is sustained
by a quorum of the Board, the EERB properly has refused to issue an unfair practice
complaint. Section 3542(b) provides, in pertinent part,
(b) Any charging party, respondent, or intervenor aggrieved
by a decision or order of the board in an unfair practice case,
except a decision of the board not to issue a complaint in
such a case, shall have the right to seek review in a court
of competent jurisdiction. (Emphasis added.)
4Sweetwater Union High School District, EERB Decision No. 4, November 23, 1976;
request to join in judicial review denied, EERB Order No. JR-1, April 29, 1977.
The EERA differentiates between unfair practice charges, which are filed by
the parties, and unfair practice complaints, which are issued by the EERB. See
Gov. Code Secs. 3541.3(i), 3541.3(j), 3541.5 and 3541.5(a). The authority to
refuse to issue an unfair practice complaint is vested solely in a quorum of the EERB
in Sec. 3541.3(k).
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For the reasons set forth above, I do not join in GSSA's request for judicial
review. Instead of promoting the improvement of employer-employee regulations, the
majority is fostering confusion among the parties and encouraging lengthy delays
and disruptions of negotiations.
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Jerilou H. Cossack, Member