Castaic Union School District (PERB J025E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
(. ..
0
CASTAIC UNION SCHOOL DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 401,
Exclusive Representative.
Case No. LA-.UM-799-E
Request for Judicial Review
PERB Order No. Ad-384
PERB Order No. JR-25
December 7, 2010
Appearances: Margaret A. Chidester & Associates by Margaret A. Chidester, Attorney, for
Castaic Union School District; California School Employees Association by Maureen C.
Whelan, Staff Attorney, for California School Employees Association & its Chapter 401;
Weinberg, Roger & Rosenfeld by Vincent A. Harrington, Jr., Attorney, for Amicus Curiae
Service Employees International Union Local 1021; Law Offices of Robert J. Bezemek by
Robert J. Bezemek, Attorney, for Amicus Curiae California Federation of Teachers, AFT,
AFL-CIO.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECTSION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on requests for reconsideration and judicial review filed by the
California School Employees Association & its Chapter 401 (CSEA) of the Board’s decision in
Castaic Union School District (2010) PERB Order No. Ad-384. In that decision, the Board
dismissed CSEA’s petition to add part-time playground monitor positions, also known as
noon-duty aides, to its wall-to-wall classified bargaining unit. The Board held that, because
the Castaic Union School District’s (District) noon-duty aides are excluded from the classified
-J UDICIAL AP P EAL P ENDING-

service, they do not have representation rights under the Educational Employment Relations
Act (EERA)’ and therefore cannot be placed in a classified bargaining unit.
The Board has reviewed the entire record in light of CSEA’s requests, the District’s
response to the requests, the amicus curiae filings, and the relevant law. Based on this review,
the Board denies CSEA’s request for reconsideration but grants CSEA’s request for judicial
review.
DISCUSSION
Request for Reconsideration
Under PERB Regulation 324 10(a), 2 the grounds for requesting reconsideration of a
final Board decision are limited to claims that: "(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." Because reconsideration may be granted only under "extraordinary
circumstances," the Board strictly applies the regulation’s criteria. (Regents of the University
of California (2000) PERB Decision No. 1354a-H.)
CSEA asserts that the Board made a prejudicial error of fact when it found that CSEA
sought to represent volunteer playground monitors. This assertion is based on statements in
the -1’ 4’ ..
	inC ivalu , ucn,Io1I auuUi the possible volunteers 01 holding ’that .-	
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playground monitors have representational rights under EERA. These statements in support of
the Board’s legal analysis do not amount to a factual finding. In fact, because no hearing was
IN MINIMUM IM IN
codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 etseq.
2

sought to add to the bargaining unit. Therefore, there is no prejudicial error of fact in the
Board’s decision. Because CSEA has failed to satisfy the criteria in PERB Regulation
32410(a), its request for reconsideration must be denied.
Additionally, other than its initial one sentence petition, CSEA did not file any
documents during the course of the Board agent’s investigation, nor did it file a response to the
District’s appeal of the Board agent’s grant of CSEA’s petition. Instead, CSEA waited until
after the District prevailed on its appeal and then sought reconsideration of the Board’s
decision. "[A] request for reconsideration is not simply an opportunity to ask the Board to ’try
again." (Chula Vista Elementary School District (2004) PERB Decision No. 1557a.) Nor does
a request for reconsideration allow a party "to reargue or relitigate issues which have already
been decided." (Redwoods Community College District (1994) PERB Decision No. 1047a.) In
other words, reconsideration does not provide a "do over" for parties or the Board. Therefore, a
party cannot use a request for reconsideration to make its first opposition to an appeal, as CSEA
has done here.
2. Request for Judicial Review
Under EERA section 3542, subdivision (a), judicial review of a unit determination
decision is limited to situations where the Board agrees that the case is "one of special
importance andjoins •	 4 A 1, " 1 --" f+b
	m iiic ieqaesi or review. i- as special iiiipui 11
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
iiim YYIIJØ Mvzivr,i,II I? YJIIDJ YIklI1
to join, at its discretion." (PERB Reg. 32500(c).) The Board has exercised its discretion to
join in a request for judicial review when the case "is primarily one of statutory interpretation."
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(Fairfield-Suisun Unified School District, et al. (1980) PERB Order No. JR-8; see Palomar
Community College District (1992) PERB Order No. JR-14 [declining to join in a request for
judicial review when the case turned on factual evidence regarding particular employees
"rather than primarily involving the interpretation of a provision of EERA"].)
The issue in this case is whether individuals in part-time playground positions who hold
no other classified position within the same school district, and who are thus excluded from the
classified service by Education Code section 45103, subdivision (b)(4), have representational
rights under EERA. This is a novel issue that has not been addressed by any court. (See
Regents of the University of California (1998) PERB Order No. JR-i 8-H [holding that the
status of student academic employees under HEERA was not a novel issue because it had been
addressed by the California Supreme Court and a California court of appeal].) The issue is
unique to EERA because part-time playground positions exist only at K-12 school districts,
which are not subject to any of the other six collective bargaining statutes administered by
PERB. Furthermore, the issue is likely to arise frequently because a significant number of
existing classified bargaining units contain part-time playground positions, as well as other
positions excluded from the classified service by Education Code section 45103,
subdivision (b). Finally, unlike the many cases in which the Board has declined to join in a
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ue st i ui J udici al revi ew, UllS case does no involve primarilyinc appncauuii ui cLu iavv x;
particular facts but rather the interpretation of EERA provisions. For these reasons, the issue
in this case is "one of special importance" that justifies the Board joining in CSEA’s request
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r.raiiri
California School Employees Association & its Chapter 401’s (CSEA) request for
reconsideration of Castaic Union School District (2010) PERB Order No. Ad-3 84, is hereby
DENIED.
CSEA’s request that the Public Employment Relations Board join in its request for
judicial review of Castaic Union School District (2010) PERB Order No. Ad-384, is hereby
GRANTED.
Members McKeag and Wesley joined in this Decision.