Fresno Unified School District (PERB A531E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
FRESNO UNIFIED SCHOOL DISTRICT,
Employer,
and
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS,
Petitioner,
and
FRESNO TEACHERS ASSOCIATION,
CTA/NEA,
Exclusive Representative.
Case No. SA-SV-192-E
PERB Order No. Ad-531
July 28, 2025
Appearances: Atkinson, Andelson, Loya, Ruud, and Romo by Peter A. Schaffert,
Attorney, for Fresno Unified School District; Weinberg, Roger & Rosenfeld by Caren
P. Sencer, Attorney, for International Association of Machinists and Aerospace
Workers; California Teachers Association by Theresa Witherspoon, Attorney, for
Fresno Teachers Association, CTA/NEA.
Before Banks, Chair; Krantz, Paulson and Krausse, Members.
DECISION
BANKS, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on an interlocutory appeal from an administrative determination (AD)
concerning a severance petition that the International Association of Machinists and
Aerospace Workers (IAMAW) filed under the Educational Employment Relations Act

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(EERA).1 In its initial severance petition (Initial Petition), IAMAW sought to sever the
Roofers and Lead Roofers classifications from a unit currently represented by Fresno
Teachers Association, CTA/NEA (FTA).2
IAMAW later amended its petition (Amended Petition), seeking to place the
Roofers and Lead Roofers classifications into an existing unit represented by IAMAW.
FTA filed a motion to dismiss the Amended Petition arguing that, under PERB
Regulation 33700, a severance petition may only be used to create a new standalone
unit, not to sever workers and transfer them to an existing unit.3 FTA also contended
that the Amended Petition was not timely, because it was filed outside the window
period but does more than correct technical errors. IAMAW disputes FTA’s
contentions. IAMAW also argues that FTA is barred from raising its concerns about
transferring the classifications into an existing unit because a PERB Board Agent
processed a similar classification transfer in 2017.
Having reviewed the record and the parties’ arguments, we find the Amended
Petition does not comply with the requirements of PERB Regulation 33700 and
therefore sustain FTA’s appeal. We remand the matter for processing of the Initial
Petition.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.
2 FTA previously opposed IAMAW’s Initial Petition as untimely and improperly
filed. PERB’s Office of General Counsel (OGC) determined that the Initial Petition was
timely, and the Board upheld the determination, remanding the matter to OGC.
(Fresno Unified School District (2024) PERB Order No. Ad-521 (Fresno).)
3 PERB Regulations are codified at Cal. Code Regs., tit. 8, § 31001 et seq.

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FACTUAL FINDINGS AND PROCEDURAL HISTORY
FTA is the exclusive representative for a unit of Building Trades Professionals,
which includes the classifications of Lead Roofers and Roofers (Roofers or Roofer
classification). FTA formerly represented another classification, Concrete
Worker/Finisher, but in 2017 IAMAW filed a representation petition to sever that
classification from FTA and transfer that classification to a unit represented by
IAMAW.4
At issue in the instant dispute is the Roofer classification, which is currently
comprised of three employees. On March 21, 2024, IAMAW filed the Initial Petition
seeking to sever the Roofers from the Building Trades Professionals unit, and to
establish a new unit comprised of only the Roofers. FTA did not agree to the
severance and filed its opposition to the Initial Petition on April 25.
On May 22, 2024, based on the information in the Initial Petition, OGC
determined that IAMAW had submitted adequate proof of support to meet the
requirements of PERB Regulation 33050(b). OGC instructed the District to file its
decision regarding recognition pursuant to PERB Regulation 33190 and noted that the
District’s response must be a denial since the incumbent union opposed severance.
Accordingly, the District denied recognition on May 30 because of FTA’s opposition to
4 On May 12, 2017, IAMAW filed a petition to sever the Concrete
Worker/Finisher classification from FTA’s bargaining unit. IAMAW filed an amended
petition on September 8, 2017, revising the unit description to request that the severed
Concrete Finishers would join the IAMAW Crafts Unit and not form a new standalone
unit. Neither FTA nor the District opposed that petition, and PERB updated its records
to reflect that IAMAW would represent the Concrete Worker/Finisher classification
going forward.

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the Petition. On June 17, IAMAW filed a request for the Board to investigate and
determine whether the Initial Petition was timely filed. OGC held a videoconference
with the parties on June 26 regarding the petition and to clarify the information the
parties were obligated to provide. Subsequently, on June 28, OGC issued a Notice of
Board Investigation and Request for Additional Information requiring the parties to
provide specific information.
On July 25, 2024, OGC issued an order to show cause (OSC) why PERB
should not find that the Initial Petition was timely filed. On August 9, FTA filed its
response to the OSC and on August 23, IAMAW filed a reply to FTA’s OSC response.
On September 20, OGC issued an order finding that the Initial Petition was timely
filed.
On September 30, 2024, FTA filed a request with OGC to join in an
interlocutory appeal of the administrative determination to the Board, which OGC
granted on October 16, 2024. On appeal, the Board affirmed OGC’s determination,
remanding the matter to OGC for further processing. (Fresno, supra, PERB Order
No. Ad-521, pp. 2, 5 & 8-9.)
On remand, OGC held an informal conference on February 5, 2025. That same
day, IAMAW filed the Amended Petition. In the Amended Petition, IAMAW revised the
description of the proposed unit to indicate that it was requesting to move the
“[Roofers] into the already existing unit represented by [IAMAW].” Under the “Shall
Exclude” section of the form, IAMAW stated that the new unit would exclude, “[a]ll
other classifications.” The number of employees in the proposed unit remained listed
as three employees. On March 20, FTA filed a motion to dismiss the Amended

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Petition. OGC transferred the case to PERB’s Division of Administrative Law on March
24. IAMAW filed its response to FTA’s motion to dismiss on April 4. On April 24, the
assigned administrative law judge (ALJ) denied FTA’s motion to dismiss the Amended
Petition, finding that the Amended Petition was timely and appropriately filed.
On May 5, FTA filed with the Board Agent a request to certify an interlocutory
appeal to the Board itself. IAMAW filed its opposition on May 9. The ALJ certified
FTA’s request for interlocutory appeal pursuant to PERB Regulation 32200 on May 13.
DISCUSSION
When appealing an administrative determination, the appellant must
demonstrate how or why the challenged decision departs from the Board’s precedents
or regulations. (City and County of San Francisco (2022) PERB Order No. Ad-497-M,
p. 15; Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470,
p. 4.)
Here, the crux of FTA’s argument is that the ALJ’s decision is a departure from
PERB Regulations and precedent because PERB Regulation 33700, which governs
severance procedures under EERA, does not permit transferring a classification from
one represented bargaining unit to another existing bargaining unit. Essentially, FTA
argues, PERB Regulation 33700 only permits severing the classifications at issue in
the petition into a separate new unit.
We proceed to summarize the main reasons why FTA is correct. We also
address the parties’ arguments as to the applicability of judicial estoppel in the instant
dispute. Finally, we explain that although we sustain FTA’s motion to dismiss the
Amended Petition, we remand the case for processing of IAMAW’s Initial Petition.

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I. 	Severance
PERB Regulation 33700 governs severance requests under EERA. Historically,
a severance petition under EERA seeks to form a separate unit comprised only of the
classifications subject to the petition. (Los Rios Community College District (2018)
PERB Decision No. 2587 (Los Rios); Compton Unified School District (2010) PERB
Order No. Ad-385; Oakland Unified School District (2001) PERB Decision No. 1464;
Lodi Unified School District (2001) PERB Decision No. 1429; Long Beach Community
College District (1999) PERB Decision No. 1315; Los Angeles Unified School District
(1998) PERB Decision No. 1267 (LAUSD); San Juan Unified School District (1995)
PERB Decision No. 1082; Temple City Unified School District (1995) PERB Decision
No. 1110.) Moreover, since their inception in the private sector, severance petitions
have been used to seek to create new, standalone units. Early analysis of severance
describes it as a mechanism whereby a group of employees can “break away from the
historical unit by a vote for separate representation” to create “a bargaining unit limited
to that group.” (Mallinckrodt Chem. Works (1966) 162 NLRB 387, 392.)5
Here, we examine the language of PERB Regulation 33700 and the criteria
PERB utilizes in applying that regulation, to support our determination that severance
5 California public sector labor relations precedent frequently protects employee
and union rights to a greater degree than does federal precedent governing private
sector labor relations, and PERB accordingly considers federal precedent only for its
potential persuasive value. (The Accelerated Schools (2023) PERB Decision
No. 2855, pp. 20-31; Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.)
(2021) PERB Decision No. 2782-M, p. 9, fn. 10.) Furthermore, public sector labor law
differs markedly from private sector labor law on unit issues, including in preferencing
labor stability over employee free choice. (LAUSD, supra, PERB Decision No. 1267,
pp. 3-5; see also Regents of the University of California v. Public Employment
Relations Bd. (2020) 51 Cal.App.5th 159, 192.) While not binding, we find the NLRB

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descriptions of severance helpful in in the instant matter in demonstrating severance’s
origins.
cannot be used to transfer job classifications from one unit to a different, preexisting
unit containing other classifications.
A. Regulatory Language
PERB Regulation 33700 governs severance requests and states:
“(a) An employee organization may file a request to become
the exclusive representative of an appropriate unit
consisting of a group of employees who are already
members of a larger established unit represented by an
incumbent exclusive representative by filing a request for
recognition in accordance with the provisions of Article 2
(commencing with Section 33050). All provisions of Articles
2 and 3 of this Subchapter shall be applicable to a
severance request except as provided in this Article 6.
“(b) Whenever the conditions of Government Code Section
3544.1(c) exist, a severance request for recognition or
intervention must be filed in accordance with Section 32135
with the employer during the ‘window period’ as defined by
Section 33020.
“(c) Any amendment to a request for recognition or
intervention to add classifications or positions which are
included in an established unit must be filed in the manner
set out in Section 32135 during the ‘window period’ defined
by Section 33020.”
At issue here is what limitations are imposed by the phrase, “. . . an appropriate
unit consisting of a group of employees who are already members of a larger
established unit represented by an incumbent exclusive representative” as used in
PERB Regulation 33700(a). FTA contends that the modifier, “consisting of,” requires
that the severed unit can only include a group of employees who are already members

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of a larger established unit represented by an incumbent exclusive representative—
that is, the severance process can only create a new, standalone unit. IAMAW argues
that as long as the new unit is “an appropriate unit,” then PERB’s analysis is satisfied,
and the new unit may become part of a larger existing bargaining unit. In the AD
denying FTA’s motion to dismiss the Amended Petition, the ALJ found that, “while an
appropriate unit may consist solely of severed employees, PERB Regulation 33700
does not expressly require that an appropriate unit consist only of severed employees
in a severance proceeding.” We disagree.
The rules of statutory interpretation require giving all words their plain
language meaning. (See Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) In
determining the plain language meaning of “consisting of,” the principle of statutory
construction expressio unius est exclusio alterius—“the express mention of one thing
is the exclusion of others”— is helpful. While not entirely dispositive, this principle is
helpful here when coupled with how PERB Regulation 33700 has been traditionally
applied.
Here, PERB Regulation 33700(a) defines the unit to be severed as “consisting
of a group of employees who are already members of a larger established unit
represented by an incumbent exclusive representative.” No other bargaining units,
employees, or classification types are included in the regulatory language. In viewing
this language through the lens that the express mention of one thing is the exclusion
of others, we find that the phrase “consisting of” as used in PERB Regulation 33700(a)
signifies a term of limitation that creates an exhaustive, closed category. This
comports with the plain meaning of “consisting of” which typically establishes a

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complete enumeration where only the specifically identified components comprise the
whole. Unlike inclusive language, like, “such as,” “including,” or “containing,” which
permit additional unlisted items, “consisting of” generally implies completeness.
Under its interpretation, IAMAW would have us change “consisting of . . .” to
something broader, like “including . . .” or “containing, among other employees . . . .”
We decline to do so, and find that, as used in PERB Regulation 33700(a), “consisting
of” means that the new unit shall be made up of “a group of employees who are
already members of a larger established unit represented by an incumbent exclusive
representative” and no other, non-enumerated, employees.
That a severance request under EERA must be filed as a request for
recognition also supports our conclusion. A request for recognition simply cannot be
used to add employees to an existing bargaining unit. Rather, an employee
organization that seeks to add employees to an existing unit must comply with PERB’s
unit modification procedures.
We next discuss how this determination is consistent with PERB’s past analysis
of severance cases.
B. Criteria Under PERB Regulation 33700
The criteria PERB utilizes in applying PERB Regulation 33700 and determining
whether severance is appropriate supports our determination that severance creates a
standalone unit. The primary factor PERB examines when evaluating a severance
petition is whether the petitioner has shown that the proposed severed unit has a
community of interest that is “separate and distinct” from other employees in the
existing, larger bargaining unit to such an extent that collective bargaining is incapable

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of addressing the needs of a discrete minority within the existing unit. (City of Glendale
(2021) PERB Decision No. 2773-M, pp. 26-27; Los Rios, supra, PERB Decision
No. 2587, pp. 5-6 & adopting proposed decision at p. 13.) PERB’s severance
precedent makes no reference to comparing the community of interest between two
established bargaining units. (Ibid.)
Moreover, in evaluating severance petitions, the Board analyzes dilution and
fragmentation issues (see, e.g., County of Orange (2016) PERB Decision No. 2478-M,
pp. 3-4; City of Glendale (2007) PERB Order No. Ad-361-M, pp. 5-6), and also looks
at bargaining history to determine whether collective negotiations are incapable of
addressing the unit members’ varied interests. (County of Monterey (2022) PERB
Decision No. 2821-M, p. 19; City of Pasadena (2021) PERB Decision No. 2788-M,
p. 10; Los Rios, supra, PERB Decision No. 2587, pp. 5-6; LAUSD, supra, PERB
Decision No. 1267, adopting proposed decision at pp. 49-50, 58.)
None of this precedent suggests that our task is to compare two existing units
and determine which would better address the bargaining interests of the
classifications at issue. Indeed, these factors demonstrate that severance does not
permit the transfer of one group of employees from an existing bargaining unit to
another existing unit. Rather, these factors support our conclusion that severance is a
process whereby classifications are carved out of a larger bargaining unit into their
own, standalone unit.

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Nothing in our precedent prevents a severed unit from later filing a petition for
unit modification seeking to be added to an existing unit. However, that is a separate
process, and not one contemplated by severance procedures.6
Because the Amended Petition does not comply with the requirements of PERB
Regulation 33700, FTA’s appeal is sustained.7
II. 	Judicial Estoppel
We briefly consider whether the ALJ or the Board itself is bound by the transfer
of the Concrete Worker/Finisher classification from FTA to IAMAW in 2017.
The doctrine of judicial estoppel prohibits a party from successfully taking
inconsistent positions in the same or different judicial proceedings. (Alliance Judy Ivie
Burton Technology Academy High, et al. (2020) PERB Decision No. 2719, pp. 36-37
(Alliance); Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181
(Jackson).) Judicial estoppel applies when (1) the same party has taken two positions;
(2) the positions were taken in judicial or quasi-judicial administrative proceedings;
(3) the party was successful in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally inconsistent; and
6 IAMAW argues that because FTA did not oppose a 2017 severance petition
that transferred the Concrete Worker/Finisher classification to IAMAW, FTA is
judicially estopped from opposing the instant petition. That is not the case. (See post,
section II.)
7 IAMAW argues that we cannot grant the motion to dismiss the Amended
Petition because there is a question of fact as to when FTA knew that IAMAW
intended to transfer the Roofer classification to an existing IAMAW unit. However,
whether and when FTA knew of IAMAW’s intentions is immaterial, because the
transfer of classifications from one unit into a different, preexisting unit is not proper
under PERB Regulation 33700.

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(5) the first position was not taken as a result of ignorance, fraud, or mistake.
(Alliance, supra, p. 37, citing Jackson, supra, p. 183.) The doctrine’s purpose is to
protect the integrity of the judicial process by preventing parties from playing fast and
loose with the courts. (Alliance, supra, p. 37, citing Jackson, supra, p. 181.)
Here, IAMAW cannot satisfy the first and second elements, as FTA did not take
a legal position and the 2017 petition did not involve a judicial or quasi-judicial
proceeding. In 2017, a PERB Board Agent permitted the transfer of the Concrete
Worker/Finisher classification from a unit represented by FTA to a unit represented by
IAMAW. In that instance, neither FTA nor the employer opposed IAMAW’s petition.
Because no party requested that PERB investigate the petition, the Board Agent
processed and closed the petition.
First, FTA’s non-opposition to the 2017 petition is not a legal position. IAMAW
has not cited, and cannot cite, judicial estoppel precedent indicating that because an
opponent conceded a prior case it must concede a second case; the judicial estoppel
principle simply does not stand for that proposition. Moreover, the Board Agent was
acting in a ministerial capacity, and there was no petition for investigation under
section 3544.5 that would have permitted PERB to investigate and make
determinations. (See PERB Reg. 33237.) Thus, FTA’s non-opposition to a 2017
petition severing the Concrete Worker/Finisher classification does not estop FTA from
opposing the severance described in the Amended Petition.8
8 IAMAW’s 2017 petition never came before the Board, and we express no
opinion on it other than to note that FTA did not oppose it, making it more akin to a
unit modification petition transferring a classification from one unit to another pursuant
to PERB Regulation 32781(c), and we see no reason to disturb IAMAW’s
representation of the Concrete Worker/Finisher classification.

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III. 	Conclusion
We sustain FTA’s appeal and grant its motion to dismiss the Amended Petition
because the Amended Petition does not comply with the requirements of PERB
Regulation 33700. IAMAW’s Initial Petition, which it filed on March 21, 2024, was
properly and timely filed and survives without the proposed amendments. Accordingly,
we remand the matter for processing of the Initial Petition.
ORDER
The interlocutory appeal in Case No. SA-SV-192-E that Fresno Teachers
Association, CTA/NEA filed on March 20, 2025, challenging an Administrative
Determination dated April 24, 2025, is SUSTAINED. In continuing to process the Initial
Petition that is currently pending in this case, the Office of General Counsel and
Division of Administrative Law shall do so in a manner consistent with this Order.
Members Krantz, Paulson, and Krausse joined in this Decision.