San Joaquin Regional Transit District * * * PUC TRANSIT CASE. PERB CASE NUMBER CONTAINS INCORRECT LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * * (PERB 2650PA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN JOAQUIN REGIONAL TRANSIT
DISTRICT,
Employer,
and
AMALGAMATED TRANSIT UNION,
LOCAL 276,
Exclusive Representative.
SMCS Case No. 17-2-315
Case No. SA-UM-873-M
Request for Judicial Review
PERB Decision No. 2650-P
PERB Decision No. 2650a-P
August 30, 2019
Appearances: Palmer Kazanjian Wohl Hodson by Treaver K. Hodson, Alexandra M. Asterlin,
and Casey M. Blanas, Attorneys, for San Joaquin Regional Transit District; Neyhart,
Anderson, Flynn & Grosboll by William J. Flynn and Benjamin K. Lunch, Attorneys, for
Amalgamated Transit Union, Local 276.
Before Shiners, Krantz, and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on a request for judicial review. The San Joaquin Regional Transit District
(District) asks the Board to authorize judicial review of the Board’s decision in San Joaquin
Regional Transit District (2019) PERB Decision No. 2650-P. In that decision, the Board
granted a Petition for Clarification (Petition) filed by Amalgamated Transit Union, Local 276
(Local 276) and added the unrepresented classification of Transit Ambassador (TA) into the
District’s single, broad bargaining unit, which Local 276 exclusively represents. For the
following reasons, we deny the District’s request.

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DISCUSSION
The District is one of approximately 18 public transit districts established under the
transit district enabling acts found in the Public Utilities Code.). The District’s enabling act is
codified at Public Utilities Code sections 50000 through 50507, including labor relations
provisions found at sections 50120-50126. Pursuant to Public Utilities Code section 50121,
the State Mediation and Conciliation Service (SMCS) is directed to establish appropriate
bargaining unit “boundaries.” Before the Legislature transferred SMCS from the Department
of Industrial Relations (DIR) to PERB in July 2012, SMCS transit district unit determinations
could be appealed to the Director of DIR. (IBEW Local 889 v. Aubry (1996) 42 Cal.App.4th
861, 867 (Aubry).) After this transfer, PERB’s Board assumed jurisdiction over appeals from
SMCS determinations in representation matters. (Gov. Code, § 3603, subd. (b); PERB
Regs. 93025, subd. (d), 93060;1 San Diego Metropolitan Transit System (2018) PERB Order
No. Ad-460-M, pp. 4-5; San Diego Metropolitan Transit System (2016) PERB Order
No. Ad-441-M, p. 2, fn. 1.) Moreover, PERB adopted pre-existing transit act regulations that
DIR had promulgated, without making any material changes. (PERB Regs. 93000-93080.)
The District’s request cites two legal provisions to support its right to file the instant
request. First, it cites the Los Angeles County Metropolitan Transportation Authority Transit
Employer-Employee Relations Act (TEERA). (Pub. Util. Code, §§ 99560-99570.4.) Under
TEERA, unit determinations are not subject to judicial review unless PERB grants a party’s
request for judicial review based on a showing that the case is one of “special importance,” or
a party raises the unit issue as a defense to an unfair practice complaint. (Id. § 99562, subd.
1 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

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(a).)2 However, TEERA solely governs the Los Angeles County Metropolitan Transportation
Authority, its supervisory employees, and unions involved in representing or seeking to
represent such employees. (Pub. Util. Code, §§ 99560, subd. (e) & 99560.3.) Accordingly,
TEERA does not provide a basis for the District’s request.
Second, the District cites PERB Regulation 32500, which mainly implements TEERA,
EERA, HEERA, JCEERA, and the Dills Act by establishing briefing deadlines for any request
for judicial review and any response thereto, as follows:
(a) Any party to a decision in a representation case by the Board
itself, except for decisions rendered pursuant to Chapter 5,
Chapter 7, or Chapter 8 of these Regulations, may file a
request to seek judicial review within 20 days following the
date of service of the decision. [The request] shall include
statements setting forth those factors upon which the party
asserts that the case is one of special importance. . . .
(b) Any party shall have 20 days [to respond to a request for
judicial review]. . . .
(c) The Board may join in a request for judicial review or may
decline to join, at its discretion.
Note: Authority cited: Sections 3509(a), 3513(h), 3541.3(g),
3563(f), 71639.1(b) and 71825(b), Government Code; and
Section 99561(f), Public Utilities Code. Reference: Sections
3509, 3509.5, 3520, 3542, 3564, 71639.4 and 71825.1,
Government Code; and Section 99562, Public Utilities Code.
The first sentence of Regulation 32500 notes that requests for judicial review may not
be filed when PERB has issued representation decisions under Chapters 5, 7, and 8 of its
regulations. Those chapters correspond to three labor relations statutes that do not authorize
2 This provision of TEERA mirrors analogous provisions found in four other labor
relations statutes that PERB enforces. (See Educational Employment Relations Act (EERA),
Gov. Code § 3542; Higher Education Employer-Employee Relations Act (HEERA), Gov.
Code § 3564; State Employer-Employee Relations Act (Dills Act), Gov. Code § 3520; and
Judicial Council Employer-Employee Relations Act (JCEERA), Gov. Code § 3524.73.)
3

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parties to file such requests for judicial review with PERB: the Meyers-Milias-Brown Act,3
the Trial Court Employment Protection and Governance Act,4 and the Trial Court Interpreter
Employment and Labor Relations Act.5
Regulation 32500 contains no such exception, however, for PERB representation
decisions pertaining to public transit districts operating under the transit district enabling acts,
such as the District. Chapter 9 of PERB Regulations governs such representation matters, and
Regulation 32500 plausibly applies to Chapter 9 matters, at least by virtue of failing to exclude
such matters. PERB Regulations thus provide the District with an argument that it was entitled
to file the instant request. We therefore review the District’s request on its merits, though we
also note that Regulation 32500 may contain an oversight in failing to exclude representation
matters arising under Chapter 9 of our regulations.6
3 The Meyers-Milias-Brown Act is codified at Government Code section 3500 et seq.
4 The Trial Court Employment Protection and Governance Act is codified at
Government Code section 71600 et seq.
5 The Trial Court Interpreter Employment and Labor Relations Act is codified at
Government Code section 71800 et seq.
6 Regulation 32500 clearly applies to representation matters under Chapter 2 (EERA),
Chapter 3 (Dills Act), Chapter 4 (HEERA), and Chapter 6 (TEERA), as those four statutes
authorize requests for judicial review, and are listed in the regulation’s “authorities cited” and
“reference” sections required by California’s Administrative Procedures Act (APA). (Gov.
Code § 11349, subd. (e).) Moreover, after the Legislature enacted JCEERA in 2017, PERB
began the process of adding JCEERA regulations under a new Chapter 10. JCEERA similarly
permits requests for judicial review, and accordingly PERB’s proposed update to
Regulation 32500 does not exempt Chapter 10, but does list JCEERA in the authorities cited
and reference sections. In contrast, the APA authorities and references listed under PERB
Regulation 32500 do not include any of the transit district enabling acts. Most importantly,
those acts do not authorize a party to file requests for judicial review with PERB, nor with
DIR, which heard appeals from SMCS unit determination disputes prior to 2012. After the
Legislature enacted Government Code section 3603 in 2012, transferring appellate jurisdiction
over transit district unit determinations from DIR to PERB, the former DIR regulations became
4

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Assuming that PERB Regulation 32500 provides the District with the right to have filed
the instant request, we must determine whether this case meets the “special importance” standard
set forth in the regulation. The Board has strictly construed that standard, to ensure “that the
fundamental rights of employees to form, join and participate in the activities of employee
organizations is not abridged. Further, the standard is also employed to prevent employee
organizations’ rights from being inhibited because if unit determinations by PERB are subject to
numerous legal challenges, delays of implementation of the Board’s decisions could occur.”
(St. Hope Public Schools (2019) PERB Order No. JR-29, p. 3 (St. Hope), quoting California
Virtual Academies (2016) PERB Order No. JR-27, pp. 3-4 (internal citations omitted) (CAVA).)
Consequently, the Board will grant a request for review only if: (1) there is a novel issue
presented; (2) the issue primarily involves construction of a statutory provision unique to the
statute under consideration; and (3) the issue is likely to arise frequently. (St. Hope, supra,
PERB Order No. JR-29, p. 3; Burlingame Elementary School District (2007) PERB Order
No. JR-24, p. 3.) All three parts must be satisfied, meaning that PERB grants a request for
review only in the narrowest of circumstances. (St. Hope, supra, p. 3; CAVA, supra, PERB
Order No. JR-27, p. 4.)
The District argues that this case presents a novel issue because the Board had never
before determined whether it is appropriate to add a classification of employees into an existing
bargaining unit under a transit district act. However, the District concedes that the Board was
not writing on a blank slate, given Aubry, supra, 42 Cal.App.4th 861, and prior DIR precedent,
which explain the factors to consider in determining whether to add employees to an existing
bargaining unit under the PUC transit acts. We applied the community of interest and accretion-
Chapter 9 of PERB Regulations. It appears that, perhaps as a result of an oversight, PERB did
not amend Regulation 32500 to exclude matters arising under Chapter 9.
5

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specific factors set forth in Aubry to the facts in the record. In evaluating the traditional
community of interest factors, we observed Aubry’s instruction that system-wide units “are
favored” under the transit district enabling acts, and noted that system-wide units are similarly
considered optimum in transportation systems under federal law. (San Joaquin Regional Transit
District, supra, PERB Decision No. 2650-P, p. 10, fn. 10 & p. 13, citing Aubry, supra, 42
Cal.App.4th at p. 871.)
Aubry also directed us to consider the impact, if any, of the bargaining unit’s history. We
applied the established law and found the evidentiary record incomplete on this factor. While
there is no dispute that the TA classification did not exist at the time the unit was certified, we
found the evidentiary record insufficient to determine exactly when the TA classification came
into existence relative to the effective date of the then-current labor agreement. Moreover, we
did not find evidence that Local 276 clearly and unmistakably waived its right to file a unit
clarification petition with SMCS when TA unit placement was not resolved during bargaining.
We can only consider these questions based on the record the parties created.
The District therefore misses the mark in arguing that the instant case is distinguishable
from Aubry because the District alleged TAs to have been “historically excluded employees.”
The District ignores that the TA classification was a relatively new classification, and that the
record did not reflect that it was “historically excluded.” The District also ignores DIR
authority regarding such principles, cited in the decision. (San Joaquin Regional Transit
District, supra, PERB Decision No. 2650-P, p. 12.)7
7 The District’s argument is also unavailing in its reliance on Castaic Union School
District (2010) PERB Order No. JR-25, p. 4 (Castaic). Castaic turned on interpreting the
statutory definition of classified employees. Our conclusion that the TA classification belongs
in the District’s existing bargaining unit turned on a factual analysis of job duties, not on
resolving a dispute over how to interpret a statutory category of employees.
6

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Our interpretation of PERB Regulation 93080, determining when federal law is relevant
and therefore must be applied, was also far from novel. The California Court of Appeal has
addressed language identical to PERB Regulation 93080. (See Santa Clara Valley Transp.
Auth. v. Rea (2006) 140 Cal.App.4th 1303, 1319 [interpreting language in Pub. Util. Code,
§ 100301 identical to that in PERB Reg. 93080].) The Court of Appeal, in turn, relied on a
California Supreme Court decision construing Labor Code section 1148, which similarly
requires the Agricultural Labor Relations Board to “follow applicable precedents of the
National Labor Relations Act, as amended.”8 (Id. at pp. 1319-1320, citing Agricultural Labor
Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 413; see also Triple E Produce Corp. v.
Agricultural Labor Relations Bd. (1983) 35 Cal.3d 42, 48.) We analyzed the record facts
under the rules gleaned from these judicial determinations; such application of law to facts
does not constitute a novel issue. (Regents of the University of California (1998) PERB Order
No. JR-18-H.)
To be sure, the District disagrees with the Board’s decision that it was proper to add an
eight-employee classification into the District’s sole existing bargaining unit, but “its mere
disagreement does not convert this otherwise pedestrian matter into an issue of novel or special
importance.” (St. Hope, supra, PERB Order. No. JR-29, p. 4.) Moreover, this case turned on a
8 The Labor Management Relations Act of 1947 amended the National Labor Relations
Act, which Congress enacted in 1935. (San Joaquin Regional Transit District, supra, PERB
Decision No. 2650-P, p. 7, fn. 8.) Thus, Labor Code section 1148 and PERB Regulation 93080
require the respective boards to look to the same substantive federal law.
7

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fact-intensive inquiry, which further counsels against granting the District’s request for judicial
review.9 (Id., p. 5.)
Finally, the District argues that the decision is novel because we allegedly applied
PERB’s unit modification procedures or standards to the instant matter, despite the fact that
cases arising under the transit acts are subject to different regulations. We agree with the District
that PERB’s unit modification procedures differ from those procedures applicable to the transit
acts, and noted this contrast in footnote 11 of our decision. (San Joaquin Regional Transit
District, supra, PERB Decision No. 2650-P, p. 12, fn. 11.) Noting that contrast is most assuredly
not the same as applying non-transit procedures to a transit district operating under the Public
Utility Code, nor did we do so.
As we noted in the underlying decision, PERB Regulation 93005 authorizes SMCS to
resolve both questions concerning representation (QCRs), as well as disputes as to whether a
particular unit, or classification placement, is appropriate. (Id. at p. 9.) PERB’s transit district
regulations distinguish between petitions for clarification such as the instant one, when there is
no QCR (see PERB Regulation 93005, subd. (c)), and petitions for certification where there is a
QCR (see PERB Regulation 93005, subds. (a) and (b).) (Ibid.) As we explained in our decision:
A QCR arises when there is a legitimate doubt whether the union
has majority support in the bargaining unit. (NLRB v. Financial
Inst. Employees of Am., Local 1182 (1986) 475 U.S. 192, 198.) If
a QCR exists, a union must demonstrate majority support among
employees to be added to an existing unit. (Teamsters Nat. United
Parcel Service Neg. Cmte. v. NLRB (D.C. Cir. 1994) 17 F.3d 1518,
1524.) In contrast, accretion allows employees to be added to an
existing unit without an election or other demonstration of majority
support. (Aubry, supra, 42 Cal.App.4th at p. 872.)
9 The District’s disagreement with our application of the record facts to the law is
evidenced by its lengthy footnote 3 in its Judicial Review request. That footnote also relies on
evidence outside of the record.
8

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(Ibid.) This structure is similar to the National Labor Relations Board’s law and procedure,
where private sector law looks to factors including but not limited to the relative size of the unit
and the group to be accreted. (See, e.g., Boston Gas Co. (1978) 235 NLRB 1354, 1355 [size of
group to be accreted raises no QCR where no reason to question majority status of union].)10
In its judicial review petition, the District also raises a new issue, asserting that PERB
Regulation 93015, subdivision (c) requires “a showing of interest” and that Local 276 did not
submit the requisite employee authorizations. The District waived that argument by not raising it
at all prior administrative stages. (Edgren v. Regents of Univ. of Cal. (1984) 158 Cal.App.3d
515, 520 [“Before seeking judicial review a party must show that he has made a full presentation
to the administrative agency upon all issues of the case and at all prescribed stages of the
administrative proceedings.”].) The District’s assertion is also untenable on its merits. PERB
Regulation 93015 only concerns those situations presenting a question concerning
representation. (See PERB Regulation 93015, entitled “Percentage of Valid Authorizations
Required to Determine Existence of a Representation Dispute.”) Where, as here, the small size
of the proposed accretion provides no reason to question the continuing majority support of the
incumbent union, there is no question concerning representation. Indeed, a petition for
clarification of an existing bargaining unit, such as the Petition filed here, is only appropriate “in
the absence of a question concerning representation.” (PERB Regulation 93005, subd. (c).) We
afford meaning to each part of Regulations 93005 and 93015, and require majority support only
10 As we noted, PERB law applicable to other employers features a bright-line “ten
percent rule” for determining whether a QCR exists, and we did not apply that standard to the
instant case. (See San Joaquin Regional Transit District, supra, PERB Decision No. 2650-P,
at p. 12, fn. 11 and cases cited therein [noting distinctions between PERB law and cases arising
under transit acts].)
9

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in those cases in which there is a question concerning representation.11 As we stated in the
underlying decision, where, as here, “there are only eight employees in the TA classification as
compared to approximately 105 employees in the existing bargaining unit . . . there is little
concern that the accretion could create a QCR or otherwise disrupt Local 276’s majority support
within the unit.” (San Joaquin Regional Transit District, supra, PERB Decision No. 2650-P,
p. 18.)
Also in reference to the new argument the District raises in its judicial review request, we
note that under federal law, because the TA classification performs functions that were
historically performed by the Customer Information Clerk (CIC) classification in the same
bargaining unit, the TA classification should properly be viewed as remaining within that unit,
which is a further reason why there is no question concerning representation. (Premcor, Inc.
(2001) 333 NLRB 1365 (Premcor) [noting exception allowing a newly-created position to be
placed in a bargaining unit without satisfying accretion principles or requiring employee support,
if the position’s duties clearly fit within that unit].) The duties being compared need not be
identical in every respect for the Premcor presumption to apply, particularly where the
differences are due to technological advances or innovations in the work process. (Premcor,
supra, at p. 1366.) Here, the introduction of the TA classification corresponded closely in time
to the near-elimination of the CIC classification. With the volume of passenger phone calls
11 In Aubry, supra, 42 Cal.App. 4th 861, new groups of employees were added to an
existing bargaining unit without a showing of interest or majority support. (Id., p. 872.) At
that time, DIR’s regulations were in place, and they were identical to the regulations at issue
here. (DIR Regulations were formerly codified at California Code of Regulations, title 8,
section 15800 et seq.; see sections 15805(c) and 15815(c).) The District’s construction of
those regulations thus not only contravenes federal law, but, more importantly, contravenes
Aubry, which holds that no showing of interest is required if the relative size of the accretion
and other relevant factors warrant adding the employees at issue to the unit. (Aubry, supra, 42
Cal.App. 4th at p. 872.)
10

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regarding bus routes, schedules, and other transit-related information decreasing due to increased
use of the internet, the District reduced the number of CICs and introduced the TA classification
to assist passengers in finding the correct bus and determining the best bus route. (San Joaquin
Regional Transit District, supra, PERB Decision No. 2650-P, pp. 3-4, 16.) Despite some
differences between the jobs, because the essential functions performed by the TA classification
closely match those historically performed within the unit, the TA classification is properly
viewed as remaining within the unit.
For the foregoing reasons, the instant case does not present a novel issue. As discussed
ante, this case does not turn primarily on statutory construction. Rather, it turns on the Board’s
analysis of the record facts. (See e.g., CAVA, supra, PERB Order No. JR-27, p. 7.)
We also find no reason to believe that the issues presented are likely to arise frequently.
It has been seven years since the Legislature transferred jurisdiction over SMCS appeals from
DIR to PERB on July 1, 2012, and this is the first such case before us. While the reported
decisions discussed ante show that such issues arose several times before July 1, 2012, these
precedent suggest that they arose on a relatively infrequent basis.12
ORDER
The request for judicial review filed by San Joaquin Regional Transit District is hereby
DENIED.
Member Paulson joined in this Decision.
Member Shiners’ concurrence begins on p. 12.
12 The issues the District raises are also not unique to its enabling act, leading us to
question whether the District can satisfy the middle prong in our stringent judicial review
standard—that the issues primarily involve construction of a statutory provision unique to the
statute under consideration. Since the District has not met the other two prongs of our standard,
we need not decide whether the District should be permitted to aggregate the 18 transit district
enabling acts and treat them all as a single act for purpose of satisfying the middle prong.
11

SHINERS, Member, concurring: I concur in the denial of the San Joaquin Regional
Transit District’s (District) request for judicial review. I write separately because I find no
basis in applicable statutes or regulations for the District to file—and thus for the Board to rule
on the merits of—a request for judicial review in this matter.
The District cites two authorities for its request: Public Utilities Code section 99562
and PERB Regulation 32500. Public Utilities Code section 99562 is part of the Los Angeles
County Metropolitan Transportation Authority Transit Employer-Employee Relations Act
(TEERA). TEERA applies only to supervisory employees of the Los Angeles County
Metropolitan Transportation Authority (Pub. Util. Code, § 99560.3), and thus does not apply to
the District. The District’s ability to request judicial review therefore rests on whether PERB
Regulation 32500 applies here.
PERB Regulation 32500 provides, in relevant part:
(a) Any party to a decision in a representation case by the Board
itself, except for decisions rendered pursuant to Chapter 5,
Chapter 7, or Chapter 8 of these Regulations, may file a
request to seek judicial review within 20 days following the
date of service of the decision.
[¶] . . . [¶]
Note: Authority cited: Sections 3509(a), 3513(h), 3541.3(g),
3563(f), 71639.1(b) and 71825(b), Government Code; and
Section 99561(f), Public Utilities Code. Reference: Sections
3509, 3509.5, 3520, 3542, 3564, 71639.4 and 71825.1,
Government Code; and Section 99562, Public Utilities Code.
“The first step in interpreting an administrative regulation is to ‘give the regulatory
language its plain, commonsense meaning.’” (Grossmont Union High School District (2018)
PERB Order No. Ad-466, p. 3, quoting Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136,
1145.) “If the language is ambiguous, we may look to other sources of interpretation,
12

‘including the purpose of the regulation, the legislative history, public policy, and the
regulatory scheme of which the regulation is a part.’” (Grossmont Union High School District,
supra, PERB Order No. Ad-466, p. 3, quoting Manriquez v. Gourley (2003) 105 Cal.App.4th
1227, 1235.)
Representation matters arising in transit districts established under the Public Utilities
Code (except for those employees covered by TEERA) are governed by Chapter 9 of PERB’s
regulations. (PERB Regs. 93000-93080.) Although decisions rendered under Chapters 5, 7,
and 8 of our regulations are excluded from the scope of PERB Regulation 32500(a), the
regulation does not exclude matters arising under Chapter 9. The majority thus concludes that
Regulation 32500 “plausibly applies” in this case, but also notes the regulation’s failure to
exclude Chapter 9 may be “an oversight.” Despite acknowledging this ambiguity, the majority
conducts no further interpretive analysis and instead proceeds to analyze whether to grant
judicial review. Unlike my colleagues, I would resolve Regulation 32500’s ambiguity with
respect to Chapter 9 against allowing a request for judicial review in this case.
Examination of interpretive sources beyond the plain language of PERB
Regulation 32500(a) reveals no basis for interpreting the regulation to allow a request for
judicial review of a Public Utilities Code transit district representation decision rendered under
Chapter 9. Five of the statutes under PERB’s jurisdiction—the Educational Employment
Relations Act (EERA), the Higher Education Employer-Employee Relations Act (HEERA),
the Ralph C. Dills Act (Dills Act), the Judicial Council Employer-Employee Relations Act
(JCEERA), and TEERA—provide that unit determination decisions by the Board itself are not
subject to judicial review “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
13

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in the request for such review; or (2) when the issue is raised as a defense to an unfair practice
complaint.” (EERA, Gov. Code § 3542, subd. (a); HEERA, Gov. Code § 3564, subd. (a); Dills
Act, Gov. Code § 3520, subd. (a); JCEERA, Gov. Code § 3524.73, subd. (a); TEERA, Pub.
Util. Code, § 99562, subd. (a).) In contrast, three other statutes under PERB’s jurisdiction—
the Meyers-Milias-Brown Act (MMBA), the Trial Court Employment Protection and
Governance Act (Trial Court Act), and the Trial Court Interpreter Employment and Labor
Relations Act (Court Interpreter Act)—do not require filing a request for judicial review as a
prerequisite to obtaining judicial review of a unit determination decision by the Board itself.
(MMBA, Gov. Code § 3509.5, subd. (a); Trial Court Act, Gov. Code § 71639.4, subd. (a);
Court Interpreter Act, Gov. Code § 71825.1, subd. (a).)
The purpose of PERB Regulation 32500(a) is to implement the above statutory
provisions. Specifically, the regulation provides for a request for judicial review to be filed
regarding Board unit determination decisions rendered under the regulations governing
representation matters for EERA, HEERA, the Dills Act, and TEERA.13 Conversely, under
Regulation 32500(a) a request for judicial review may not be filed regarding a Board decision
“rendered pursuant to Chapter 5 [governing representation matters under MMBA], Chapter 7
[governing representation matters under Trial Court Act], or Chapter 8 [governing
representation matters under Court Interpreter Act] of [PERB] Regulations.” Thus, a request
for judicial review may be filed under PERB Regulation 32500(a) only when the applicable
statute explicitly provides for such a request to be filed.
The “Reference” section of PERB Regulation 32500 also is instructive. Under the
Administrative Procedure Act, “‘[r]eference’ means the statute, court decision, or other
13 As of the date of this decision, proposed regulations governing representation matters
under JCEERA are pending approval by the Office of Administrative Law.
14

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provision of law which the agency implements, interprets, or makes specific by adopting,
amending, or repealing a regulation.” (Gov. Code, § 11349, subd. (e).) The “Reference”
section of Regulation 32500 lists the statutory provisions of EERA, HEERA, the Dills Act, and
TEERA requiring a party to request judicial review of a unit determination decision by the
Board itself, as well as those provisions of the MMBA, Trial Court Act, and Court Interpreter
Act allowing judicial review without a request being made to the Board (which correspond to
the exceptions listed in subdivision (a)). Thus, Regulation 32500 implements only the listed
statutory provisions.
Turning to the District’s enabling act, Public Utilities Code section 50121 grants the
State Mediation and Conciliation Service (SMCS) authority to determine appropriate
bargaining units in the District. A unit determination by SMCS may be appealed to the Board
itself. (PERB Reg. 93025(d); San Diego Metropolitan Transit System (2018) PERB Order
No. Ad-460-M, pp. 4-5.) But neither section 50121 nor any of the other labor relations
provisions of the enabling act requires the District or an employee organization to file a request
for judicial review to obtain judicial review of a Board decision in such a case.14 Furthermore,
no provision of the District’s enabling act is listed in the “Reference” section of PERB
Regulation 32500. Because the District’s enabling act does not require filing a request for
judicial review with the Board itself as a prerequisite to judicial review of a unit determination
decision and no provisions of the act are cited as a reference in Regulation 32500, the
regulation cannot be read to allow a request for judicial review in this case, notwithstanding
14 Notably, this aspect of the District’s enabling act mirrors the MMBA, Trial Court
Act, and Court Interpreter Act, which also do not authorize parties to file requests for judicial
review. Accordingly, it is equally as “plausible” that PERB Regulation 32500 should be
similarly interpreted as not requiring the District to file a request for judicial review. Unlike
the majority, however, I refrain from rooting my conclusion in ambiguous possibilities but
instead look to the entire context of the regulation.
15

the absence of an explicit exclusion for decisions rendered under Chapter 9 of PERB’s
regulations.
Further support for this reading is found in the legislative history of Chapter 9. As
noted in our earlier decision in this case, “[p]rior to the transfer of SMCS to PERB in 2012,
SMCS transit district unit determinations could be appealed to the Director of DIR
[Department of Industrial Relations]. (IBEW Local 889 v. Aubry (1996) 42 Cal.App.4th 861,
867 (Aubry).” (San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P,
p. 6.) The Director’s decision, in turn, was subject to judicial review via a petition for writ of
mandate in superior court. (Santa Clara Valley Transp. Auth. v. Rea (2006) 140 Cal.App.4th
1303, 1311; Aubry, supra, 42 Cal.App.4th at p. 866.) Upon the transfer of SMCS to PERB,
PERB, as required by the transfer legislation, adopted existing DIR regulations as Chapter 9 of
PERB’s regulations with no substantive changes. (Gov. Code, § 3603, subd. (c); San Joaquin
Regional Transit District, supra, PERB Decision No. 2650-P, p. 6.) At the same time, all of
the DIR Director’s authority with respect to SMCS was transferred to the Board itself. (Gov.
Code, § 3603, subd. (b).) The wholesale transfer of the existing review process without
alteration indicates the Legislature did not intend to impose a different judicial review
procedure for unit determination decisions rendered by the Board itself than existed when
those determinations were made by the DIR Director.
“PERB has only such jurisdiction and powers as have been conferred on it by statute.”
(Central Contra Costa Transit Authority (2012) PERB Decision No. 2263-M, p. 6.) As a
result, PERB cannot interpret a statute in a manner that “alters, amends or enlarges the scope
of the power conferred upon” the agency. (Cal. Code Regs., tit. 1, § 14(c)(1)(A); Samantha C.
v. State Dept. of Developmental Svcs. (2010) 185 Cal.App.4th 1462, 1481-1482.) Here, the
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District’s enabling act does not give the Board a gatekeeper role with respect to judicial review
of its unit determination decisions. By reading PERB Regulation 32500(a) to allow a request
for judicial review in this case, the majority arrogates to the Board a power not conferred on it
by statute, i.e., the authority to decide whether to allow judicial review of the underlying
decision. To avoid this untenable result, I read Regulation 32500(a) as not requiring or
allowing the District to file a request for judicial review in this case, which is consistent with
the regulation’s purpose and legislative history. On this ground, I concur in the denial of the
District’s request.
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