California Virtual Academies (2016) PERB Decision No. J027-E (Issued on 9/30/16)
This cases involves a request for “judicial review” of a unit determination decision arising under the Educational Employment Relations Act (EERA). Under EERA, with a very limited exception, there can be no judicial review of a unit determination decision unless that Board joins in the request for judicial review. By law, the Board can only join in such a request when the case is one of “special importance.” The same rules apply under HEERA and the Dills Act. Judicial review cases are rare. According to my records, the last judicial review case decided by the Board was in October 2011. So this is a good time to review what constitutes a case of “special importance.”
The Board affirmed its standard that a case is of special importance only where: 1) there is a novel issue presented; (2) the issue primarily involves construction of a statutory provision unique to the statute; and (3) the issue is likely to arise frequently. All three elements must be present to warrant judicial review. The Board emphasized that it applies these standards strictly since judicial review is warranted in only the narrowest of circumstances.
Here, the Board had concluded that eleven charter schools across the State are a single employer for purposes of collective bargaining. The charter schools argued that application of the single employer doctrine in these circumstances was novel, involves an issue of statutory construction, and likely to arise in the future given the proliferation of charter schools in California. The Board, however, found against the charter schools on each prong of the test for “special importance.” Accordingly, the Board declined to join in a request for judicial review.
- As is self-evident, the standard for a case of “special importance” is a difficult one to meet. Given that PERB has had over 30 years of experience under EERA, HEERA, and the Dills Act, there just aren’t that many “novel” issues remaining.
- One important note, the requirement that PERB join in a request for judicial review does not apply to the MMBA and similar acts where the employer has primary responsibility for making unit determination issues. Even if an employer has no local rules, and therefore PERB decides a unit determination issues, the parties can seek judicial review of PERB’s decision without PERB having to join in the request.