California Virtual Academies (PERB J027E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA VIRTUAL ACADEMIES,
Employer,
and
CALIFORNIA TEACHERS ASSOCIATION,
Petitioner.
Case No. LA-RR-1227-E
Request for Judicial Review
PERB Decision No. 2484
PERB Order No. JR-27
September 30, 2016
Appearances: Jackson Lewis by David S. Allen and Michael A. Wertheim, Attorneys, and
Gibson, Dunn & Crutcher by Eugene Scalia, Greta B. Williams and Megan Cooney, Attorneys,
for California Virtual Academies; Laurie M. Burgess, Staff Attorney, for California Teachers
Association.
Before Winslow, Banks and Gregersen, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on a request filed pursuant to PERB Regulation 325001 that the Board join
California Virtual Academies (CAVA) in seeking judicial review of the Board’s decision in
California Virtual Academies (2016) PERB Decision No. 2484. In that case, an administrative
law judge (ALJ) considered a petition for exclusive recognition by California Teachers
Association (CTA) of a single bargaining unit of approximately 700 certificated teachers
employed by 11 charter schools. The ALJ concluded that a statewide bargaining unit
consisting of all CAVA teachers was appropriate and that CAVA Schools and each of the 11
1 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Regulation 32500 provides in pertinent part: “(a) Any party to a decision in a
representation case by the Board itself . . . may file a request to seek judicial review within 20
days following the date of service of the decision. . . . (c) The Board may join in a request for
judicial review or may decline to join, at its discretion.”
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individual schools were joint employers of the nearly 700 teachers. Both CAVA and CTA
excepted to the proposed decision.
The threshold issue presented on appeal was whether the self-described network of 11
“virtual” charter schools that comprise CAVA was a single or joint employer for representation
purposes under the Educational Employment Relations Act (EERA).2
The Board affirmed the ALJ’s ultimate conclusion that a single, statewide unit is
appropriate and affirmed the ALJ’s order certifying CTA as the exclusive representative of the
employees in the petitioned-for unit. However, it reached this conclusion on the grounds that
the single employer doctrine applies for representation purposes under EERA. CAVA asserts
that the Board’s determination that CAVA constitutes a single employer is a question of
special importance warranting the Board to join CAVA in seeking judicial review.
The Board has reviewed the entire record in light of CAVA’s request for judicial
review (Request), CTA’s response, and the relevant law. Based on this review, the Board
declines to join CAVA’s request for judicial review for reasons explained below.
CAVA’S REQUEST
CAVA asserts in its Request that the Board’s decision in California Virtual Academies,
supra, PERB Decision No. 2484 is a departure from nearly 40 years of Board precedent; that
the Board’s determination that 11 separately-incorporated schools across the State are a single
employer will have significant ramifications for the growing number of charter schools in the
State, as well as for other public employers that, like CAVA schools, outsource administrative
functions and use some of the same personnel to reduce costs to taxpayers and consumers.
CAVA further asserts that judicial review is appropriate to: (1) determine whether the single
2EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2
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employer doctrine may be used to “override an individual charter school’s declaration under
section 47611.5(b) of the Education Code that it is the ‘exclusive’ public school employer for
representation purposes under the EERA, and (2) determine how the ‘single employer’
doctrine should be applied where there are multiple, geographically dispersed ‘public entities
involved.’” (Request, p. 6.)
DISCUSSION
Under EERA section 3542, subdivision (a):
(a) No employer or employee organization shall have the right to
judicial review of a unit determination 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 in the request for such review; or (2) when the issue is
raised as a defense to an unfair practice complaint. A board order
directing an election shall not be stayed pending judicial review.
(Emphasis added.)
Under PERB Regulation 32500, the Board has the sole discretion to determine whether
a case is “one of special importance.” The regulation states, in pertinent part:
(c) The Board may join in a request for judicial review or may
decline to join, at its discretion.
(PERB Regulation, § 32500, subd. (c).)
As the Board noted in San Diego Community College District (2002) PERB Order
No. JR-20 (San Diego CCD):
The Board’s considerable discretion in the determination of
appropriate units is demonstrated by the very limited
circumstances under which judicial review of its unit decisions
may be obtained. (San Diego Unified School District (1981)
PERB Order No. JR-10.) The reason for PERB’s strict standard
is 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
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unit determinations by PERB are subject to numerous legal
challenges, delays of implementation of the Board’s decisions
could occur. (San Francisco Community College District (1995)
PERB Order No. JR-16-E (San Francisco); State of California
(Department of Personnel Administration) (1993) PERB Order
No. JR-15[-S].)
(San Diego CCD, supra, PERB Order No. JR-20 at pp. 2-3.)
The Board applies a strict standard when reviewing requests for judicial review, and
will join in a request only in cases of special importance. (San Diego, supra, PERB Order No.
JR-20 at p. 2.) The Board has held that:
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.
(Burlingame Elementary School District (2007) PERB Order No. JR-24 (Burlingame).)
PERB joins in requests for judicial review only in the narrowest of circumstances. The
three-part test for determining “special importance” articulated in Burlingame, supra, PERB
Order No. JR-24 is phrased in the conjunctive, and therefore all three parts must be satisfied
before PERB will join in the request for judicial review. (The Regents of the University of
California (1999) PERB Order No. JR-19-H, p. 4.)
In the instant case, CAVA has not met any of the three indicia of “special importance,”
as explained below.
a. 	Novel Issue Presented
CAVA argues that the case involves the Board’s first-ever determination that separate
entities are a “single employer” under EERA. CAVA also argues that the circumstances of this
case are unprecedented, in that they (1) present the issue of whether the “single employer”
doctrine analysis may be used to override an individual charter school’s declaration under
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section 47611.5 subdivision (b) of the Education Code that it is the “exclusive” public school
employer for representation purposes under the EERA, and (2) involve the finding that 11
different charter schools in locations across the State constitute a single employer, while single
employer findings ordinarily involve just two entities.
While PERB has not previously concluded that multiple public agencies have
comprised a single employer, it is not the case that PERB has never considered and analyzed
the single employer doctrine before. The Board has considered the “single employer” doctrine
under EERA on prior occasions and determined under the facts of those cases that the “single
employer” theory did not apply. Our analysis of the doctrine clearly indicates that the “single
employer” concept is not novel to the Board. (See, e.g., Plumas Unified School District and
Plumas County Superintendent of Schools (1999) PERB Decision No. 1332 at p. 2, fn. 2:
“[W]e hold that EERA section 3540.1(k) does not preclude the possibility of two entities
acting as a single or a joint employer within the meaning of the EERA. [Citation omitted.] In
this case, however, the hearing officer properly found that the District and the County
Superintendent were separate employers.” (Turlock School Districts (1977) EERB Order No.
Ad-18.) There is nothing “unprecedented” about our finding that the 11 CAVA schools
constitute a single employer. Under CAVA’s argument, any factual distinction between the
California Virtual Academies decision and prior decisions would make it “unprecedented,”
despite our consistent application of the well-established “single employer” doctrine.3
3 CAVA points to a comment in California Virtual Academies, supra, PERB Decision
No. 2484 that “we are in uncharted waters” (id. at p. 86) implying the Board itself has already
determined its decision that the case presents a novel issue for purposes of justifying PERB’s
joining in a request for judicial review. We disagree. The fact that this case was the first time
the Board applied the single employer doctrine to the facts presented and concluded the
doctrine applied “only in the most unique of circumstances,” prompted the “uncharted waters”
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CAVA asserts that the Board’s conclusion that Education Code section 47611.5,
subdivision (b) did not preclude a finding that a charter school with multiple sites was a single
employer presents a novel issue warranting judicial review.4 This was an argument CAVA
made in the proceedings below. The fact that CAVA disagrees with the Board’s legal and
factual conclusions does not make for a “novel” issue. If such disagreements did determine a
“novel issue,” every case involving conflicting statutory interpretations, no matter their merit,
would satisfy this element, rendering meaningless the policy considerations discussed in San
Diego CCD, supra, PERB Order No. JR-20 that counsel for a very strict standard in joining in
requests for judicial review. (See, also, Regents of the University of California (1998) PERB
Order No. JR-18-H at p. 8: “[M]ere disagreement with the Board’s exercise of its fundamental
responsibility to approve appropriate units does not demonstrate that a case is of special
importance.”)
b. 	Issues Primarily Involve Statutory Construction Unique to EERA
In support of the second Burlingame element, CAVA reasserts its argument that the
comment. However, as the remainder of that sentence reads: “we are not without the
analytical tools necessary to arrive at the appropriate result.”
4 On this point the Board reasoned that in a unit determination, the first issue is whether
CAVA met the statutory definition of an employer under EERA, which includes in its
definition of “public school employer” a “charter school that has declared itself a public school
employer pursuant to subdivision (b) of Section 47611.5 of the Education Code.” (EERA,
§ 3540.1, subd. (k).) Education Code section 47611.5, subdivision (b) provides in part: “A
charter school charter shall contain a declaration regarding whether or not the charter school
shall be deemed the exclusive public school employer of the employees at the charter school
for the purposes of Section 3540.1 of the Government Code. . . .” Even though each of the
CAVA charter schools is the “exclusive public school employer” (as opposed to the
authorizing public school district), the Board noted that there is no indication that by requiring
a charter petition to designate whether the charter school or the school district would be the
employer, the Legislature intended to impede PERB in its determination of matters uniquely
within its own expertise, such as application of the single employer doctrine in the appropriate
factual circumstance. (California Virtual Academies, supra, PERB Decision No. 2484, p. 53.)
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Board’s decision in California Virtual Academies, supra, PERB Decision No. 2484 primarily
turned on the meaning of the phrase “exclusive public school employer” contained in
Education Code section 47611.5, subdivision (b). (Burlingame, supra, PERB Order No.
JR-24.)
We disagree. This case did not turn primarily on statutory construction. Rather, it was
decided after the Board’s painstaking analysis of the facts and an application of those facts to
the law. (See Palomar Community College District (1992) PERB Order No. JR-14, p. 4.) The
decision’s discussion of “exclusive public employer” in addressing CAVA’s argument does
not turn this fact-intensive case into one of statutory construction.
By contrast, the decision in Castaic Union School District (2010), PERB Order No. JR-
25 (Castaic), did turn on statutory construction (statutory definition of classified employee),5
as did the Board’s decision in Fairfield-Suisun Unified School District et al. (1980) PERB
Order No. JR-8 (meaning of “same employee organization”). As explained in California
Virtual Academies, supra, PERB Decision No. 2484, in employing the single employer
doctrine to CAVA’s network of schools, PERB was not identifying a “legally distinct entity”
from those enumerated in EERA section 3540.1, subdivision (k). It was instead invoking an
“analytical construct that is imposed under judicially developed doctrines [based] on legally
distinct but nominally separate and functionally integrated entities solely for the purpose of
representation and collective bargaining.” (California Virtual Academies, supra, PERB
Decision No. 2484, p. 67.) This conclusion was based primarily on a factual analysis, not on a
statutory interpretation.
5 The underlying decision on the merits in Castaic (Castaic Union School District
(2010) PERB Order No. Ad-384) was overturned by Center Unified School District (2014)
PERB Decision No. 2379, p. 5, which held that noon duty aides were “public school
employees” entitled to collective bargaining rights under EERA.
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c. 	The Issue is Likely to Arise Frequently
In support of the third Burlingame element, CAVA argues that the growth in California
of charter schools generally and “on-line” schools particularly, make the issues presented in
this case likely to arise with increasing frequency in the coming years. (Burlingame, supra,
PERB Order No. JR-24.)
We are not persuaded. Simply because CAVA asserts that charter schools are likely to
proliferate does not demonstrate that the particular issues in this case are likely to arise
frequently, especially given the fact-intensive nature of the decision. (Options for Youth-
Victor Valley, Inc. (2004) PERB Order No. JR-22.)
In contrast, the decision in Castaic, supra, PERB Order No. JR-25 was likely to arise
frequently for the reasons stated therein. The issue in that case was whether individuals in
part-time playground positions who hold no other classified position within the same school
district, and who were thus excluded from the classified service by Education Code section
45103, subdivision (b)(4), have representational rights under EERA. According to the Board,
the issue was 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).
Furthermore, as the Board noted in San Diego CCD, supra, PERB Order No. JR-20,
“[a]s the first two prongs of the Board’s three part test for seeking judicial review are not met,
it is not relevant whether the issues presented in this case are likely to arise frequently.” (Id. at
p. 4)
CAVA’s additional arguments are mostly attempts to parse the language in the decision
to support its position, or to point out the differences between the Board’s decision and the
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`ALJ’s proposed decision. Much of the request is essentially a request for reconsideration in
disguise. CAVA “merely seeks to relitigate the issues [presented] in another forum and is
nothing more than a disagreement with the Board’s exercise of the discretion vested in the
Board by the Legislature.” (San Diego CCD, supra, PERB Order No. JR-20 at p. 4.) As we
have noted, when the requestor’s arguments address “issues of fact and factual interpretation”
upon which the underlying PERB decision is based, “[t]hey do not meet the standard necessary
to justify approval of the request for judicial review.” (Palomar Community College District,
supra, PERB Order No. JR-14 at p. 5.)
Accordingly, we conclude that the Request fails to satisfy any of the three parts of the
Burlingame test for determining that a case is one of “special importance” warranting the
Board to join in a request for judicial review.
Request for Stay
CAVA requests that the Board stay its June 28, 2016 bargaining order pending judicial
review. However, “[a]s the Board declines to seek judicial review, it is not necessary to rule
on the [employer’s] request for a stay.” (San Diego CCD, supra, PERB Order No. JR-20 at
p. 4.) Moreover, EERA section 3542, subdivision (a) states in part: “A board order directing
an election shall not be stayed pending judicial review.” While this case does not involve an
election, we believe that this sentence reflects legislative and public policy that representation
matters generally should not be subject to unwarranted delay through pursuit of judicial
review. If an election is not to be stayed pending judicial review, a fortiori, a unit
determination and certification of exclusive representative is not to be stayed pending a party’s
pursuit of judicial review.
Finally, we reject CAVA’s claim that it will suffer irreparable harm if it is forced to
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bargain collectively with approximately 700 teachers. First, it will not be bargaining with 700
employees. It will be bargaining with their representative, CTA, collectively. Second, CAVA
seeks review only of PERB’s application of the single employer doctrine. Had the proposed
decision stood, CAVA would still be “forced to bargain” as a joint employer.
ORDER
The request filed by California Virtual Academies that the Public Employment
Relations Board join in a request for judicial review of the Board’s decision in California
Virtual Academies (2016) PERB Decision No. 2484 is hereby DENIED.
Members Banks and Gregersen joined in this Decision.
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