Burlingame Elementary School District (PERB J024E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
Case No. SF-UM-611-E
Request for Judicial Review
PERB Decision No. 1847
PERB Order No. JR- 24
F e b r u a r y 14, 2007
BURLINGAME ELEMENTARY SCHOOL
DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,
Exclusive Representative.
Appearances: Miller, Brown & Dannis by Lawrence M. Schoenke, Attorney, for Burlingame
Elementary School District; Christina C. Bleuler, Attorney, for California School Employees
Association.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on a request for reconsideration and request for judicial review filed by the
Burlingame Elementary School District (District)1 of the Board's decision in Burlingame
Elementary School District (2006) PERB Decision No. 1847 (Burlingame). In Burlingame, the
District filed a unit modification petition to remove the benefits/payroll specialist position from
the California School Employees Association (CSEA) bargaining unit and designate the
position as confidential under section 3540.l(c) of the Educational Employment Relations Act
The District filed one document captioned "Request for Judicial Review or
Reconsideration or Both by Burlingame School District and Supporting Brief."

(EERA).2 The Board adopted the proposed decision of the Board agent, which found that the
benefits/payroll specialist position in the District was not a confidential position.
The Board has reviewed the entire record relevant to the District's requests for
reconsideration and judicial review. We find that this record does not contain a basis for the
Board to reconsider its previous decision in Burlingame, nor did the District present sufficient
evidence for the Board to grant the request for judicial review. Therefore, the Board denies
both the request for reconsideration and the request for judicial review.
DISCUSSION
The facts in this case are well-chronicled in Burlingame and we need not review them
here. The issues before PERB at this juncture are solely whether or not the District has met the
standards set forth in PERB case law and the statutes for reconsideration and judicial review.
Request for Reconsideration
Requests for reconsideration are limited to circumstances where "(1) the decision of the
Board itself contains prejudicial errors of fact, or (2) the party has newly discovered evidence
which was not previously available and could not have been discovered with the exercise of
reasonable diligence." (PERB Reg. 32410(a).3) We find that the District's request for
reconsideration is not supported by the evidence. The District merely re-asserts the same
arguments that were made and rejected at the hearing before the Board agent and that were
denied in the District's appeal of the Board agent's proposed decision. Therefore, we deny the
District's request for reconsideration.
2EERA is codified at Government Code section 3540, et seq. Unless otherwise stated,
all statutory references are to the Government Code.
3PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.

Request for Judicial Review4
Under EERA section 3542(a), requests for judicial review are limited to situations in
which the Board agrees that the case is "one of special importance and joins in the request for
such review." A case has "special importance" if the Board determines that (1) there is a novel
issue presented; (2) the issue primarily involves construction of a statutory provision unique to
EERA; and (3) the issue is likely to arise frequently. (Los Angeles Unified School
District/Lynwood Unified School District (1985) PERB Order No. JR-13 (Los Angeles).)
The District argues that it has met the standard for judicial review because the
Legislature changed the definition of "confidential employee" in Section 3540.l(c) and judicial
interpretation of the new definition has not occurred. Specifically, the District wants the
opportunity to seek court determination that under the new definition, the Legislature intended
that an employee may be deemed confidential even if the position only required access to
confidential information and not the actual performance of confidential duties, as required by
PERB.
The definition of "confidential employee" in Section 3540.l(c) prior to January 2004
was as follows: "any employee who, in the regular course of his or her duties, has access to,
or possesses information relating to, his or her employer's employer-employee relations."
The definition of "confidential employee", effective January 1, 2004 to the present in
Section 3540.l(c) is:
any employee who is required to develop or present management
positions with respect to employer-employee relations or whose
duties normally require access to confidential information that is
As noted in footnote 1 above, the District filed a single brief for both its request for
reconsideration and its request for judicial review. In response, CSEA filed a document
captioned "CSEA's Response to the District's Request for Reconsideration and Judicial
Review of PERB Decision." The document was not timely filed for purposes of responding to
a request for judicial review. Therefore, we only considered CSEA's response on the issue of
the request for reconsideration.

used to contribute significantly to the development of
management positions.
The District argues that judicial review is necessary, because "[t]he language does not indicate
that the employee must already perform those [confidential] duties."
We do not agree that the change in definition for "confidential employee" presents an
issue of "special importance" warranting the Board joining with the District to seek judicial
review. First, The District's argument ignores the fact that the pre-2004 language in
Section 3540.l(c) also did not state that an employee must perform confidential duties to be
deemed a confidential employee. Second, the Board agent discussed the change in definition,
but found that Higher Education Employer-Employee Relations Act (HEERA)5 cases
interpreting "a definition of confidential employee virtually identical to that in the new EERA
section, have applied the same principles", inter alia, that confidential employee status requires
more than access to confidential information. Hence, the District's argument fails to meet the
second prong of the test for "special importance" articulated in Los Angeles in that the
statutory construction sought is not for language that is "unique to EERA" because nearly the
same language already exists in HEERA.
The District further argues that an issue of special importance requiring judicial review
is implicated because under current PERB law, school districts are not always afforded the
right to have a sufficient number of confidential employees, contrary to PERB's decision in
Sierra Sands Unified School District (1976) EERB6 Decision No. 2. The District argues that
this right is being denied by PERB's requirement that employees actually perform confidential
tasks in order to be deemed confidential employees. This argument merely recycles the same
HEERA is codified at Section 3560, et seq.
6Prior to 1978, PERB was known as the Educational Employment Relations Board
(EERB).

position presented by the District at hearing and in its exceptions to the Board agent's proposed
decision and fails to rise to the level of special importance warranting judicial review.
Accordingly, we hereby deny both the District's request for reconsideration and its
request for judicial review.
ORDER
The request of the Burlingame Elementary School District (District) that the Public
Employment Relations Board (PERB) reconsider its decision in Burlingame Elementary
School District (2006) PERB Decision No. 1847 (Burlingame) is DENIED.
The request of the District that PERB join its request for judicial review of Burlingame
is DENIED.
Members Shek and McKeag joined in this Decision.